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The linguistic and interpretative aspects of the law were always a part of legal theory. They were neglected during the heyday of legal positivism but they have now returned to the forefront of jurisprudence. Law is seen as an exclusively linguistic and meaningful construct and various types of hermeneutics and literary theory are being adopted to explain and justify the operations of the “prison house of legal language”. In orthodox jurisprudence R. Dworkin,Law's Empire (London: Fontana, 1986); S. Levinson and S. Mailloux, eds.,Interpreting Law and Literature: A Hermeneutic Reader (Evanston:Northwestern University Press, 1988), and S. Fish,Doing What Comes Naturally (Cambridge: Cambridge University Press, 1990), are clear examples of the linguistic turn. For a more critical approach see P. Goodrich,Legal Discourse (London: Macmillan, 1987); P. Goodrich,Languages of Law (London: Weidenfeld, 1990), and C. Douzinas and R. Warrington (with S. McVeigh),Postmodern Jurisprudence: The Law of Text in the Texts of Law (London: Routledge, 1991). There is no doubt that the importation of literary theory and hermeneutics into jurisprudence has immensely helped a field plagued by the largely irrelevant and irredeemably boring debates of the 60s and 70s between positivism, analytical moral philosophy and various shades of sociology of law. The present essay is not directed at the linguistic and meaning constructing nature of the law but against some types of uncritically imported literary theory which completely forget the violent nature and unjust character of much legal action.
R. Cover, “Violence and the Word”,Yale Law Journal 95 (1986), 1601.
Ibid., at 1607.
For a more detailed look into the linguistics and pragmatics of sentences as applied to legal texts see C. Douzinas and R. Warrington, “Suspended Sentences”, inPostmodern Jurisprudence, supra n.1, at 197–271.
Levinas is the major 20th century philosopher who introduces a post-rational ethics as a first philosophy that is not dependent upon cognitive claims and does not lead to totalising systematisations. His most influential books in English areOtherwise than Being, transl. A. Lingis (The Hague: Nijhoff, 1981), andEthics and Infinity, transl. R. A. Cohen (Pittsburgh: Duquesne University Press, 1985). A good introduction to Levinas' occasionally inscrutable work that owes both to European phenomenology and to the Jewish theological tradition isThe Levinas Reader, ed. S. Hand (Oxford: Blackwell, 1981).
M. Heidegger,Being and Time (New York: Harper & Row, 1962), 145.
Levinas quoted by Derrida in “Violence and Metaphysics”, his famous discussion of Levinas' theory inWriting and Difference (London: Routledge, 1978), 100.
R.A. Cohen, “Absolute Positivity and Ultrapositivity: Husserl and Levinas”, inThe Question of the Other, ed. A. Dallery and C. Scott (New York: State University of New York Press, 1989), 43.
Op.cit. at 96.
J.F. Lyotard,The Differend: Phrases in Dispute (Manchester: Manchester University Press, 1988), 111.
“Force of Law: The ‘Mystical Foundation of Authority’”,Cardozo Law Review 11 (1990), 919, at 949.
The sentence is for Lyotard the basic unit of all discourse and action, the minimum constituent of our world. As such it is a unique event that just happens. The economy of sentences thatThe Differend analyses is one of pure happenings that combine to create meanings and reality. The translator ofThe Differend opts for the English word phrase as the best translation of the French “phrase”. We will prefer here with Bennington (Lyotard: Writing the Event (Manchester: Manchester University Press, 1988)) the word “sentence”. We feel that the ambiguously singular nature of a legal sentence best encapsulates Lyotard's ambition to theorise the irreducibly unique.
For an ordinary language analysis of the “idea of obligation” see H.L.A. Hart,The Concept of Law (Oxford: Clarendon, 1979), 79–88. Hart bases his “internal point of view” on the linguistic distinction between “being obliged” and “having an obligation”. Hart rightly points out that “having an obligation” to do something does not depend on beliefs, motives or the prediction of sanctions. But Hart goes on to identify the feeling of obligation with rule-based behaviour. As we will see in this essay this identification often leads to violations of the ethical demand.
Lyotard,supra n.10, at 84.
Ibid. at 108.
Bennington,supra n.12, at 139.
Levinas quoted by Lyotard inThe Lyotard Reader, ed. A. Benjamin (Oxford: Blackwell, 1989).
R. v.Secretary of State for the Home Department, ex parte Sivakumaran and conjoined appeals [1988] 1 All E.R. 193 H.L. (herein after cited in text as 1:);Bugdaycay v.Secretary of State for the Home Department and related appeals [1987] 1 All E.R. 940 H.L. (hereinafter cited in text as 2:).
A recent Amnesty International report paints a harrowing picture of many thousands of extrajudicial executions and disappearances and of extensive torture of Tamils in the last 4 years. SeeSri Lanka (London: Amnesty International Publication, 1990). But despite the well-documented evidence of persecution against Tamils, the British Government adopted a “street fighting approach” towards Tamil refugees seeking asylum in Britain. David Waddington, a Home Office Minister in 1987, described their claims as “manifestly bogus” and Tory MPs called them “criminals” (Hansard 17.2.87). The political resolve to refuse asylum was also evident in the tough legal tactics adopted. Mrs. Thatcher announced in February 1987 that airlines could be penalized for carrying immigrants into the country without proper documentation and in March Mr. Hurd, the then Home Secretary, introduced the necessary legislation. (Immigration (Carriers' Liability) Act 1987). Furthermore under new arrangements the Government severely restricted the right of refugees to seek independent legal advice and limited the traditional power of MPs to intervene in individual cases in favour of immigrants. See, U.K.:Deficient Policy and Practice for the Protection of Asylum Seekers (London: Amnesty International British Section, 1990) and D. Burgess, “Asylum by Ordeal”,New Law Journal (Jan. 18th 1991), 50.
E. Scarry,The Body in Pain (Oxford: Oxford University Press, 1987), 4.
Lyotard,supra n.10, at 5.
Derrida,supra n.11, at 951.
See our “The Books of Judges: The Shibboleths of Justice”, inPostmodern Jurisprudence, supra n.1, at 183.
X Ltd v.Morgan-Grampian (Publishers) Ltd and others [1990] 1 All E.R. 616, C.A. at 623, 622 (hereinafter cited in text as 3:).
Lyotard,supra n.17, at 286.
M. Foucault,Language, Counter-Memory, Practice (Oxford: Blackwell, 1977), 186.
D. Cornell, “Post-structuralism, the Ethical Relation, and the Law”,Cardozo Law Review 9 (1988), 1587, at 1591.
Derrida,supra n.11, at 949.
Ibid.
The best known instance is that of Bobby Seale, one of the defendants in the Chicago 6 trial, who was bound and gagged during proceedings. SeeIllinois v.Allen, 397 US 337 (1970).
D. Cornell, “From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation”,Cardozo Law Review 11 (1990), 1689 at 1693.
For Derrida's exquisite reading of the remain(s) in Hegel, seeGlas (Lincoln: University of Nebraska Press, 1986).
Supra n. 35, at 1697.
Ibid. at 1705, 1704.
Cornell,supra n.30, at 1628.
Cornell,supra n.35, at 1693.
Derrida,supra n.11, at 961.
Derrida,supra n.11, at 967.
J. Derrida, “Devant la Loi”, inKafka and the Contemporary Critical Performance: Centenary Readings, ed. A. Edoff (Bloomington: Indiana University Press, 1989), 141.
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Douzinas, C., Warrington, R. “A well-founded fear of justice”: Law and ethics in postmodernity. Law Critique 2, 115–147 (1991). https://doi.org/10.1007/BF01128674
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DOI: https://doi.org/10.1007/BF01128674