Abstract
Discussing the power of the legal discourse of international conventions leads us to a debate on the very nature of international law. Despite not intending to exhaust this topic, we will attempt to point out some relevant criteria in favor of the discourse of international law and against the claim that only the so-called national law exists. Then, we will briefly examine the linguistic artifices that either hide or shed light on the real sender of normative utterances. These artifices have a decisive influence on the acceptance of international legal discourse by its audience. Finally, the power of legal-diplomatic discourse – as capable of establishing and disseminating a common legal culture in the international system – will be discussed, considering the active role of language and the ideology that defines its content.
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- 1.
P. Allott, “The concept of international law”, op. cit., at 42. As the author points out, “the hand of the invisible systemic legislator began to give way to the very visible hand of the institutional legislator.” Ibid, at 42.
- 2.
Contractual instruments under domestic law fall outside the scope of this book – even those executed by a Nation-State. In the case of these instruments, according to Combacau and Sur, “the contracting parties are international legal entities and have the required international capacity, but they agree to be bound by domestic law or a set of rules of their choice.” Op. cit., at 78.
- 3.
Reuter (1995), at 26.
- 4.
G. Cornu, op. cit., at 223.
- 5.
A reservation is a unilateral declaration made by a Nation-State stating that specific parts of a convention do not receive the support of the “voice” of this Nation-State. Via reservations, the Nation-State refutes its commitment to abiding by one or more of the sections of the treaty. The parties to a treaty have the right to make reservations, except in the event reservations are not allowed by the treaty in question or in the event reservations are incompatible with the scope and goal of the document. See Article 19 of the Vienna Convention of 1969.
- 6.
The same applies to the case of any future accessions to the treaty, and, especially, to the case of open multilateral treaties, that is, treaties open for signature by any Nation-State at any time, such is the case of the Agreement Establishing the World Trade Organization. See Article XII.1: “Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.” Dinh explains that the “accession to an international organization is a very specific kind of adhesion and is governed by complex procedures: state candidacy, which is a declaration of intent; admittance, which results from a unilateral decision of the respective bodies of the organization, according to internal procedures of the organization in question that open the way to the act, which is in principle unilateral, by which the state accedes to the instrument. However, it may be that, in this case, accession results from an agreement between original signatories and acceding State.” (N. Q. Dinh; P. Daillier; A. Pellet, op. cit., at 178). At any rate, the fact that a country accedes to a preexisting convention does not make the country in question any less the author of the legal discourse than the original member-states.
- 7.
Sistach, in addressing the (paradoxical) coexistence between a right to social repression and a right to an individual guarantee within the framework of domestic law, notes: “the paradox essentially resides in the ideology, that is, in the source of values acknowledged by society, of the impossibility of conducting a legal policy outside the semiological context of repression/prevention. However, this albeit invincible logic is the result of the historical contradiction of the double ideology of law. It does not represent in any way a form of truth or an inescapable framework of social organization.” Sistach (2000), at 39–40. The so-called international law could take its rightful place if we presented in its defense the doctrinarian concept that conceives the law as a model for judging conduct. Thus, the nature of the law would not reside in its deontic sense, but in it being an instrument of measurement, of reference, in order to assess how things should be. According to Miaille: “A normative system is, before anything else, a system of measurement […] legal norm is an instrument of measurement […].” Miaille (1978), at 103. In line with this, the work of the Groupe Stéphanois de Recherches, at the Université de Saint-Étienne by Jeammaud, understands that, “contrary to what is often taught, the natural logic of a rule of law is not to prescribe, prohibit or allow conduct (under threat of sanctions applied by social authority). Because of its universal nature, it is an ideal model, that is, an instrument of measurement, of reference, enabling one to assess, every time its conditions are met, how things should be” (Groupe Stéphanois de Recherches, at 11).
- 8.
The concept of sovereignty is born to the Nation-State along with its “self-consciousness” of being a legal entity in public law, who as such has the decision-making authority as an instance of last resort. The life of the law depends on this authority that, according to Reale, is the power to decide “what should be considered legal as a norm and what should be regulated.” Reale (2000), at 341. Only to the Nation-State can this “consciousness” be attributed, and not to the law. Thus, decision-making authority lies in the hands of the Nation-State. This opinion, supported by Reale, is contrary to Kelsenian formalism. According to Kelsen, “[…] sovereignty can only be a quality of a legal system in the role of the authority it represents as a source of rights and obligations.” Kelsen (2000), at 365. This theoretical perspective differs from the notion of sovereignty as a quality of state power.
- 9.
Fonseca (1998), at 53. For this reason, the author asserts “from a realistic viewpoint, there is no room for institutional reformism in the form of arrangements that resort to ethics or the law.” Ibid, at 46.
- 10.
P. Reuter, op. cit., at 30.
- 11.
For the meaning of this power of legal discourse, see Sections 6.3 and 6.4.
- 12.
The term “society” is commonly used where political integration takes place. A usage that would be unlikely when applying the term to a global scope. On the other hand, by choosing the phrase “international community” would also mean a departure from the objective features that characterize international relations. According to Seitenfus, “the term community implies the communion of interests and the will to live congruously. However, international relations have shown that congruousness has not been their main or the least of their concerns. Therefore, we have adopted the term international society in its sociological sense, which demonstrates at least a minimum will of living together.” Seitenfus (1997), at 23, emphasis in the original.
- 13.
N. Q. Dinh; P. Daillier; A. Pellet, op. cit., at 88. The author mentions several constitutions (among which the French, Italian, and German constitutions) as proof that Nation-States do recognize, in different ways, their submission to international law. In fact, the need to bridge gaps in sovereignty has lead countries to pull efforts together, so that certain goals (e.g. social, political, economic goals, etc.) are better reached when shared in the regional or multilateral scale. According to Canotilho, Nation-States that were formerly autarchical in their foreign policy have become “open and internationally ‘friendly’ and ‘cooperative’”, acting in an international legal and political system made up by international public law entities – such as, for example, international cooperation and integration organizations – and no longer solely based on the traditional paradigm of horizontal relations. It is due to this international scenario that “the right to ‘opt out’ of international law and of international organizations is increasingly becoming a fiction.” Canotilho (1998), at 1275 and 1277, respectively. According to Allott “national decision-making has increasingly become more conditioned by products of the international decision-making processes” (“The concept of international law”, op. cit., at 41).
- 14.
Cf. N. Q. Dinh, P. Daillier, A. Pellet, op. cit., at 91.
- 15.
It is worth noting that some international organizations are endowed with more effective sanction mechanisms against Nation-States in breach of their obligations under a convention or treaty. The WTO is an example. This fact strengthens the deontic sense of the discourse of conventions, giving it an important role in stopping conduct detrimental to an agreement.
- 16.
According to Dinh, “it is true that there is no organization specialized in publishing norms; however, as in any legal system, international norms undergo a formal drafting process in which, firstly, Nation-States participate, together with the authors and main addressees of the rules in question (the same way as in domestic law according to which the parties to a contract are both its authors and addressees), as with all legal system.” Op. cit., at 90.
- 17.
P. Allott, “The concept of international law”, op. cit., at 43.
- 18.
International organizations are defined by Seitenfus as “the voluntary association among Nation-States, established through a treaty which provides for a permanent organizational framework and an independent legal entity from the Member-States, with the goal of pursuing common interests through the cooperation of its members.” (Manual das organizações internacionais, op. cit., at 27.). The Vienna Convention on the Law of Treaties (1969) gives a succinct definition: “‘international organization’ means an intergovernmental organization” (Article 2, i.).
- 19.
This is the only way one can speak of UN law, the European Union law, Mercosur law, or WTO law, etc., each of which has its own legal vocabulary that regroups lexical units that possess legal meaning in the heart of these organizations.
- 20.
See the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, April 15, 1994. According to the terms of Article 1.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), “covered agreements” are the accords numbered in Appendix 1 of this legal instrument. It includes the Agreement Establishing the WTO, the Multilateral Trade Agreements, the DSU, and the Plurilateral Trade Agreements. It does not include, however, the Trade Policy Review Mechanism. The Multilateral Agreements which are the following: the Multilateral Agreements on Trade in Goods, the General Agreement on Trade in Services (GATS), the Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the DSU.
- 21.
The Uruguay Round was fostered by the old General Agreement on Tariffs and Trade (GATT) and lasted more than 7 years (1986–1994) with 123 countries taking part. The origins of the GATT are found in the disastrous negotiations for the creation of the International Trade Organization (ITO). The negotiations for creating the organization were successfully concluded in Havana in 1948. However, the fact that the United States’ Congress did not ratify the agreement rendered the ITO unfeasible. The GATT was the only result of the negotiation. In 1947, it had been signed by 23 countries only, but became the legal benchmark for the governments of industrialized nations that sought to reduce or eliminate the trade barriers. But there was more: the GATT also became a non-official, but rather de facto, international organization. In this context, international negotiation rounds started being held periodically. It was the beginning of this regular practice. The Uruguay Round has been considered the most important of these rounds. “It encompassed every kind of commerce, from toothbrushes to cruise ships, from banking services to telecommunications, from wild rice genes to AIDS treatment. It was simply the greatest commercial negotiation of all times and, most probably, the most wide-encompassing in the history of mankind.” OMC (2001), at 12. The Doha Round, started in 2001 and still has not been concluded. It addresses negotiations in many areas, such as agriculture and services, and it also approaches the problems regarding the application of WTO Agreements. It is worth noting that with the advent of the WTO, the GATT as an “international organization” ceased to exist. Nevertheless, the GATT as an agreement still exists as the “1947 GATT.” Using the year 1947 to identify it as such serves the purpose of distinguishing it from its updated version on the occasion of the Uruguay Round, which resulted in the “GATT 1994”. Chapter 7 of this book will include a more detailed study of the historical circumstances that involved the creation of the GATT and the advent of the WTO.
- 22.
According to the explanatory note of the WTO Agreement, the terms “country” or “countries” “are to be understood to include any separate customs territory Member of the WTO”
- 23.
The “multilateral” system of commerce refers to the system regulated by the WTO. Since the WTO does not encompass all the countries in the world, it cannot be described as “global”. However, for the purposes of the WTO, the term “multilateral” refers to activities at the global level, distinguishing these from activities carried out regionally.
- 24.
Emphasis added. The legal discourse of conventions includes any latter agreements entered into by the parties thereof confirming the interpretation of the treaty or the application of its provisions (Article 31.3, a, of the Vienna Convention de 1969). We could also extend the criterion and include the adoption of a text – that is, its conclusion and authentication– as part of the legal discourse of conventions.
- 25.
The Preamble to the WTO Agreement reads: “The Parties to this Agreement, Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living […]; being desirous of contributing to these objectives […]; resolved, therefore, to develop an integrated, more viable and durable multilateral trading system […]; determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, agree as follows: […]” (Emphasis added).
- 26.
G. Cornu, op. cit., at 282.
- 27.
Article 3(2) of the ASCM.
- 28.
Article 5 of the ASCM.
- 29.
The term “government” in Article 1(a.1) of the Agreement on Subsidies and Countervailing Measures (ASCM) of WTO refers to all the Members of the agreement, and reads “For the purpose of this Agreement, a subsidy shall be deemed to exist if: a.1) there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as “government”) […].” The same may be said of the phrase “granting authority” in Article 2 of the ASCM. However, in this case, the general application of the term does not intend to encompass any and all persons, but only those in a certain situation – that is, the situation of an authority granting a subsidy – according to the ASCM. Behind the seemingly general wording, the text is of camouflaged objectiveness, thus including government authorities, businessmen, workers, labor unions, social groups, etc.
- 30.
G. Cornu, op. cit., at 272.
- 31.
Ibid, at 267.
- 32.
Barros (2001), at 78.
- 33.
Beividas (2000), at 42.
- 34.
According to Merry: “legal words and practices are cultural constructs which carry powerful meanings not just to those trained in the law or to those who routinely use it to manage their business transactions but to the ordinary person as well.” Merry (1990), at 8–9, emphasis added.
- 35.
Beaulac (2004), at 1.
- 36.
Ibid, at 1, emphasis in the original.
- 37.
On the word “law”, Williams (1963), at 134. On the term “state”, Brancourt (1976), at 39. On the words “globalization” or “mondialisation”, see the work of Stern (2000), at 274. On the term “sovereignty”, Allott states: “sovereignty is not a phenomenon of the physical world. It is not even some sort of necessary and ineradicable idea within consciousness. It is a word-idea formed, like any other word-idea, from and in human consciousness. Sovereignty is not a fact but a theory. […] The sovereignty of state-societies, which they are supposed to use when they make international law and which they are supposed to limit by making international law, is only the externalization […] of particular theories of society developed in a particular period of history in particular social circumstances.” Allott (1990), at 302.
- 38.
In line with this, Beaulac states that: “[…] a change in words may, through the cognitive process, influence and modify reality.” (The power of language in the making of international law, op. cit., at 25.).
- 39.
Beaulac uses the terms “thought” or “reference” and “symbol” which are synonymous in this book with “content” and “expression”, respectively.
- 40.
Cf. S. Beaulac, op. cit., at 24–25.
- 41.
Beaulac does not ignore this and states: “Therefore, just as linguistic signs, through the mind, indirectly describe and represent reality (passive role), linguistic signs also model and change reality through the same cognitive process (active role).” (op. cit., at 25, emphasis added). However, the sequence proposed by the author concerning the active and passive role of language, despite being very schematic, does not clarify the nuances and reciprocal influences that are established among word-thought-reality.
- 42.
P. Allott, Eunomia, op. cit., at 6.
- 43.
Voloshinov (1986), at 85, emphasis in the original. The complex authorship issue concerning this book – whether it was written by Bakhtin or Voloshinov – still remains. Therefore, depending on the translation consulted, the references shall refer to Bakhtin (Voloshinov), Voloshinov, or Bakhtin.
- 44.
The phrase “most active language” is more appropriate than “native language”. Aubert explains that “with the ever-expanding cultural globalization and increasing migratory movements – which may vary in their direction but, apparently, not in intensity – one will quite frequently encounter “linguistic biographies” in which a more or less radical change in linguistic competence has occurred at some vital moment of an individual’s life story. In the case of immigrant children – but not only in this group – it is quite common to observe certain linguistic/referential specializations, i.e., a greater ease in speaking of certain subjects in one language and of other subjects in another, e.g. the language of the parents to deal with the family and home and the language acquired at school to express the realities of the outside world.” F. H. Aubert, As (in)fidelidades da tradução, op. cit., at 54–55. Translation by Aubert.
- 45.
Bourdieu (2002), at 242.
- 46.
Control of legal knowledge is one of the aspects of contemporary power relations. Thus, the constant dispute for the prevailing meaning of legal terms and phrases in international relations, – such as in drafting laws, treaties, and international accords, or in judicial proceedings that end with a decision of recognized jurisdiction by the litigants –, is by no means a coincidence. In any case, one who masters legal discourse is at an advantage (in terms of power) when compared to one who does not. According to Bourdieu, “the formation of the legal field is inseparable from the establishment of a monopoly by legal professionals over the production and commercialization of this category of products, which are legal services. Legal competence is a specific power that enables one to control the access to the legal field, determining the conflicts that are allowed to enter this field and the specific way they must be presented in order to engender legal debates.” P. Bourdieu, O poder simbólico, op. cit., at 225–226 and 233, respectively. Emphasis in the original.
- 47.
V. Voloshinov, Marxism and the philosophy of language, op. cit., at 75.
- 48.
The use of this phrase refers to the law of the United States of America. Greenhouse provides a summary of the different usages of the term “Americanization”. It can mean: “the incorporation of the indigenous nations to the federal State; the assimilation of immigrants; the transformation – with the help of a legal framework regulating trade among the pioneers – of the law in the Louisiana Territory; the ‘Americanization’ of the law in Japan, as a result of occupation; and, controversially, the reform of legal systems adopted by the Southern states after the American Civil War. Obviously, in the United States, ‘Americanization’ usually means the assimilation of minority cultures by the New World due to institutions promoting citizenship.” Greenhouse (2001), at 46.
- 49.
A. Garapon; I. Papadopoulos, Juger en Amérique et en France, op. cit., at 13–14.
- 50.
Georges Abi-Saab. Interview to Evandro Menezes de Carvalho. Geneva, Switzerland, 10 October 2005.
- 51.
Farnsworth (2001), at 24. The author lists other advantages of the influence of the United States which: is an economic “superpower”; plays an active role in the globalization (or mondialisation) process; has a large number of “experts”; has a legal system – the common law – that is less “strange” to Western legal systems when compared to English law; has codes (e.g. the Uniform Commercial Code and the Restatement of Contracts); has the advantage that most of its legislation is recent; and, lastly, benefits from the wide array of jurists from other countries that come into direct contact with the US legal culture through scholarships, research, education, conferences, etc.
- 52.
According to the author, the Americanization of European legal culture would be more significant in the long term than the changes made to positive law itself. Positive law refers to the system of rules created by the legislature, the courts, and scholars. Legal culture, in turn, refers to everything surrounding these rules. It is legal culture that gives meaning. Legal culture can be found in the way in which the legal profession works, in the way organizations operate, in the teaching of the law, etc. It involves, therefore, traditions and mindsets. These (new) cultural realities can shape positive law and positive law can also influence it notwithstanding. Reimann (2001), at 75.
- 53.
M. Reimann, “Droit positif et culture juridique”, op. cit., at 72.
- 54.
Idem, loc. cit.
- 55.
Watt (2001), at 32.
- 56.
We use the term “globalization” in the sense used by Ost to differentiate it from “mondialisation” and “universalization”. The author presents the terminological difference among these as follows: mondialisation “means the increasing planetary interdependence in a growing number of spheres of social life. It means that the flows generally replace territories, and networks replace borders. The inside-outside difference loses much of its relevance, thus making Nation-States radically rethink their means of intervention. Opposing to mondialisation defined as such serves no purpose. Globalization, on the other hand – even if generally considered the Anglo-Saxon translation for ‘mondialisation’ – has an ideological meaning: it is an interpretation of ‘mundialization’ in exclusively economic terms, privileging efficiency and competition, and is translated as the ‘commercialization’ of all aspects of the social life in regards to legal liberalization.” On “universalization”, Ost says: “an equally ideological concept, ‘universalization’ consists in reinterpreting the fact of mondialisation as an opportunity for widely ‘sharing meaning’, in line with the moral universalism of the Englightment, according to which universal human rights are today the most clear translation.” Ost (2001), at 6–7. Delmas-Marty is also in favor of this distinction. She considers “mondialisation” neutral in a way that “globalization” and “universalization” are not. They are respectively, the phenomena of unilateral diffusion and hegemony of economic law, and a shared meaning regarding human rights. Delmas-Marty (1998), at 14–15. For more on the difference between “globalization”, “internationalization” and “universalization” see also M. Kohen, “Internationalisme et mondialisation” In: C.-A. Morand (Dir.). Le droit saisi par la mondialisation, op. cit., at 108–110.
- 57.
Globalization law differs from the globalization of the law. Albeit inseparable, Chevallier offers a clear explanation of their different dimensions. The author uses the expression “mondialisation” the way in which we use “globalization”. “The mondialisation of the law translates into the creation of a common backdrop of rules to be applied generally. Certainly, these rules do not constitute a coherent and unified framework that is a true ‘transnational legal system’ above the law of Nation-States. The scope of these rules vary and their contents evolve; they unfold in a flexible manner, while being incorporated by domestic legal systems; and the conventional technique by which they are propagated gives the Nation-State control – at least theoretically – of the process. However, during its evolution, what is designed is an actual outline of ‘global law’.” J. Chevallier, “Mondialisation du droit ou droit de la mondialisation?” In: C.-A. Morand (Dir.). Le droit saisi par la mondialisation, op. cit., at 39. According to Chevallier, the development of globalization law “has strengthened the domination of the Anglo-Saxon understanding of the law over the Romano-Germanic legal tradition: when they have to choose the rules to govern their transactions (legal shopping), international operators of the economy tend to choose the most flexible and most pragmatic, and the powerful American law firms put significant pressure to this end. However, the very international organizations are more and more impregnated with Anglo-Saxon legal concepts. The globalization of law appears to be a privileged axis of the ‘Americanization of law’, which is but a by-product of the economic power of the United States.” J. Chevallier, “Mondialisation du droit ou droit de la mondialisation?”, op. cit., at 55. Emphasis added. Chevallier states that, although the globalization law (“droit de la mondialisation”) is initially “conceived and applied outside Nation-States”, States play a role in its development while adopting rules aimed at promoting the security and development of international trade: “The law of globalization is also a product of inter-national construction: the rules that organize trade are, largely, born from conventions among Nation-States or produced by international organizations that create them; as globalization progresses, it is found that conventional drafting tends to be a combined means of production.” (op. cit., at 47–48). The author cites the WTO as emblematic.
- 58.
According to Legrand, in regard to the influence of “American” law over foreign law: “A rule of law from the United States that comes to be established in France, Italy or somewhere else, cannot be introduced without modification. In order to be received, in order to “make sense” in the locale, to become part of the network of significations that inevitably constitute the fruit of the history of a certain society, this American rule should – as a manner of speaking – be metabolized. The moment a rule of American law is intended to become part of French law, for example, French law transforms it and makes it no longer American. In other words, it is a Francophied American law, which is neither the same thing nor the same rule.” Legrand (2001), at 38. The author defends the argument with an example taken from banking law, the “crédit consortial” (the Anglo-American innovation, called the “syndicated loan” in the US and later introduced in France). The author also expresses the local mutation, or “metabolism as a “process of cultural resistance.” Ibid, at 38, emphasis added.
- 59.
From this perspective, we can say that “American” law is also submitted to the formation process of the globalization of law, given that other legal systems – to a higher or lesser degree – take part in it. Farnsworth states that the Principles of UNIDROIT contain concepts strange to “American” law, such as pre-contractual liability and hardship (E. A. Farnsworth, “L’américanisation du droit”, op. cit., at 22–23). Furthermore, this cultural permeability of legal cultures is not new to the law or to domestic laws. Research could be carried out to establish a parallel between the contemporary “Americanization” of the law and the Romanization of European law in the Middle Ages. As Reimann notes, “one can cite the domination of academic institutions cultivating a model of law (in the past, in Italy, and now in the US), the influence of foreign students that return to their countries after studying in these institutions (on the other side of the Alps in the Middle Ages, and today above the Atlantic), the role of an international common legal language (formerly Latin, today English), and the inclusion in a broader context of cultural transfer (formerly the Renaissance, currently the Americanization of Western lifestyle).” M. Reimann, “Droit positif et culture juridique”, op. cit., at 62.
- 60.
This ideology of globalization lies on some fundamental beliefs: “in growth, ensuring an unlimited amount of produced, traded and consumed goods; in the superiority of market mechanisms, fostering a social and economic optimum; in the benefits of competition, promoting constant efforts toward competitiveness, innovation and modernization; in the positive effects of the opening of borders, and the development of exchange, which would be essential drivers of dynamism and efficiency; in the obsolescence of state protection, which is a factor of rigidness and sclerosis and is currently in disuse due to the growing interweaving of economies.” J. Chevallier, “Mondialisation du droit ou droit de la mondialisation?”, op. cit., at 52.
- 61.
Chaui explains that “the ideology is a logical, systematic and coherent set of representations (ideas and values) and of norms and rules (of conduct) that indicate and prescribe to the members of society what they should think and how they should think, what they should value and what they should not value, what they should feel and what they should not feel, and what they should do and what they should not do.” Chaui (2001), at 108. This partial vision of the world is associated with the concept of the ideology as “false consciousness” – the theoretical occultation of the concrete physical relations in life.
- 62.
V. Voloshinov, Marxism and the philosophy of language, op. cit., at 9 and 10, emphasis in the original. According to Fairclough, “ideology is significations generated within power relations as a dimension of the exercise of power and struggle over power.” Fairclough (1992), at 67.
- 63.
To say that discourse practices may alter the balance of power is to say that the semantic system of ideology may be put in check by other views of the world. However, as Eco puts it, the statement received as semantically anomalous is “‘ideologically’ interpreted as a malignant effort to disrupt the ‘law and order’, which governs one’s uncontradicted semantic universe (i.e. one’s culture, world vision, religion, ‘way of life’, etc.).” U. Eco, A Theory of Semiotics, op. cit., at 297.
- 64.
Voloshinov makes a concession to the constitutive role of consciousness (“as organized, material expression”) concerning reality. According to the author: “[…] consciousness, so conceived, is an objective fact and a tremendous social force. To be sure, this kind of consciousness is not a supraexistential phenomenon and cannot determine the constitution of existence. It itself is part of existence and one of its forces, and for that reason it possesses efficacy and plays a role in the arena of existence. Consciousness, while still inside a conscious person’s head as inner-word embryo of expression, is as yet too tiny a piece of existence, and the scope of its activity is also as yet too small. But once it passes through all the stages of social objectification and enters into the power system of science, art, ethics, or law, it becomes a real force, capable even of exerting in turn an influence on the economic bases of social life.” V. Voloshinov, op. cit., at 90, emphasis added. Even so, this action of consciousness would be, according to Voloshinov, a social fact and not an individual one, since the content of consciousness (“individual psyche”) is as social as ideology. “Thus every sign, even the sign of individuality, is social”, he states. We understand that this assertion aims at affirming that thought is subordinate to the ideological system. “The individual, as possessor of the contents of his own consciousness, as author of his own thoughts, as the personality responsible for his thoughts and feelings, – such an individual is a purely socioideological phenomenon. Therefore, the content of the ‘individual’ psyche is by its very nature just as social as is ideology, and the very degree of consciousness of one’s individuality and its inner rights and privileges is ideological, historical, and wholly conditioned by sociological factors.” Op. cit., at 34. Voloshinov’s position appears to make the social nature of psychic reality absolute, infiltrated in the intellect of the individual making no room for the possibility of words relativizing the hegemony of the ideological sign, that is, of creating other realities that are not the one established by the dominant sign.
- 65.
In the words of Saussure: “By distinguishing between the language itself and speech, we distinguish at the same time: (1) what is social from what is individual, and (2) what is essential from what is ancillary and more or less accidental. The language itself is not a function of the speaker. It is the product passively registered by the individual. […] Speech, on the contrary, is an individual act of the will and the intelligence […].” Op. cit., at 13–14, emphasis added.
- 66.
“The sign and its social situation are inextricably fused together”, says Voloshinov, op. cit., at 37, emphasis in the original.
- 67.
As Fairclough notes, “a rigid opposition between ‘content’ or ‘meaning’ and ‘form’, is misleading because the meaning of texts are closely intertwined with the forms of texts, and formal features of texts at various levels may be ideologically invested.” Op. cit., at 89, emphasis added.
- 68.
V. Voloshinov, Marxism and the philosophy of language, op. cit., at 41.
References
ALLOTT, Philip. Eunomia: new order for a new world. New York: Oxford University Press, 1990.
BEAULAC, Stéphane. The power of language in the making of international law: the word sovereignty in Bodin and Vattel and the myth of Westphalia. Leiden; Boston: Martinus Nijhoff Publishers, 2004.
BEIVIDAS, Waldir. Inconsciente et verbum: psicanálise, semiótica, ciência, estrutura. São Paulo: Humanitas/FFLCH/USP, 2000.
BOURDIEU, Pierre. O poder simbólico. 5. ed. Rio de Janeiro: Bertrand Brasil, 2002.
BRANCOURT, Jean-Pierre. Des ‘estats’ à l’Etat: évolution d’un mot. Archives de Philosophie du Droit, Paris, t. 21, 1976.
CANOTILHO, J. J. Gomes. Direito constitucional e teoria da Constituição. Coimbra: Almedina, 1998.
CHAUI, Marilena. O que é ideologia? 2. ed. São Paulo: Brasiliense, 2001.
de BARROS, Diana Luz Pessoa. Teoria do discurso: fundamentos semióticos. 2. ed. São Paulo: Humanitas/FFLCH/USP, 2001.
DELMAS-MARTY, Mireille. Trois défis pour un droit mondial. Paris: Seuil, 1998.
FAIRCLOUGH, Norman. Discourse and social change. Cambridge: Blackwell, 1992.
FARNSWORTH, E. Allan. L’américanisation du droit: mythes ou réalités. Archives de Philosophie du Droit, Paris: Dalloz, t. 45, pp. 21–28, 2001.
GREENHOUSE, Carol J. Perspectives anthropologiques sur l’américanisation du droit. Archives de Philosophie du Droit, Paris: Dalloz, t. 45, pp. 43–59, 2001.
KELSEN, Hans. Teoria geral do direito e do Estado. 3. ed. São Paulo: Martins Fontes, 2000.
LEGRAND, Pierre. L’hypothèse de la conquête des continents par le droit américain (ou comment la contingence arrache à la disponibilité). Archives de Philosophie du Droit, Paris: Dalloz, t. 45, pp. 37–41, 2001.
MIAILLE, Michel. Une introduction critique au droit. Paris: Masperò, 1978.
OMC. Con el comercio hacia el futuro. 2. ed. rev. Ginebra, marzo de 2001.
OST, François. Mondialisation, globalisation, universalisation: s’arracher, encore et toujours, à l’état de nature. In: MORAND, Charles-Albert (Dir.). Le droit saisi par la mondialisation. Bruxelles: Emile Bruylant; Editions de l’Université de Bruxelles; Helbing & Lichtenhahn, 2001. pp. 5–36.
REALE, Miguel. Teoria do direito e do Estado. 5. ed. São Paulo: Saraiva, 2000.
REIMANN, Mathias. Droit positif et culture juridique: l’américanisation du droit européen par reception. Archives de Philosophie du Droit, Paris: Dalloz, t. 45, pp. 61–75, 2001.
REUTER, Paul. Introduction au droit des traités. 3e. éd. rev. et augmentée par Philippe Cahier. Paris: PUF, 1995.
SEITENFUS, Ricardo. Manual das organizações internacionais. Porto Alegre: Livraria do Advogado, 1997.
SISTACH, Dominique. Mots, langues, langages et droit: essai de relecture des concepts juridiques essentiels. In: MATZNER, Elsa (Dir.). Droit et langues etrangeres: concepts, problemes d’application, perspectives. Presses Universitaires de Perpignan, 2000, pp. 25–41 (Collection Études).
STERN, B. How to regulate globalization? In: BYERS, M. (Ed.) The role of law in international politics: essays in international relations and international law. Oxford: Oxford University Press, 2000.
VOLOSHINOV, Valentin Nikolaevic. Marxism and the philosophy of language. Cambridge: Harvard University Press, 1986.
WATT, Horatia Muir. Propos liminaires sur le prestige du modèle américain. Archives de Philosophie du Droit, Paris: Dalloz, t. 45, pp. 29–36, 2001.
WILLIAMS, Glanville Llewelyn. The controversy concerning the word ‘law’. In: LASLETT, P. (Ed.). Philosophy, politics and society. 1st series. Oxford: Basil Blackwell, 1963.
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de Carvalho, E.M. (2011). The Power of Legal-Diplomatic Discourse. In: Semiotics of International Law. Law and Philosophy Library, vol 91. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9011-9_6
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