NOCIÓN DE ESPACIO PÚBLICO

Law is articulate. As an expressive subject, law articulates how things are, giving form to reality through its expression as ‘the law’. By law: this isthe law. This is law as ‘articulation’ in the most basic sense of the term: ‘to give expression’. This is ‘law’, without definite article, without determinate form in itself—an act of giving form, of making express, what remains otherwise unexpressed.

Law is also imaginative, its expressive scope as limited as the human imagination. Thus law might articulate things linguistically, through acts of writing, speaking, and singing, as well as through other expressive modes, such as dance, sculpture, painting, weaving—indeed through any cultural artefact, through any spatial arrangement, through any act by which the subject gives form to things.7

Infinitely imaginative, law nonetheless has a definite object in mind: to articulate normativity. By ‘normativity’ I mean the quality of being normative: as prescription, it is the subjective sentence on life, which subscribers render real by acting upon with conviction, making what is intentional into something ontic. To the serious question, ‘it is this?’, the serious answer, ‘it is this’. What ‘is’: always a normative statement, rendered real by its affirmation, as is. The child asks: ‘the tree is the soil?’ The parent answers negatively, cutting the tree from the ground it inhabits, from the air it breathes, from the birds it nests, and affirms, ‘the tree is this’. Expressing what ‘is’: always an act of articulating normativity. Likewise ‘law’: giving form to how things are to be by expressing how things ought to be, giving form to how things ought to be by expressing how things are to be. Thus the

7 _{See Roderick A Macdonald, ‘Custom Made - For a Non-chirographic Critical Legal Pluralism’,}

Canadian Journal of Law and Society, vol 26, no 2 (2011). See also Austin Sarat, ‘What Popular Culture Does For, and To, Law’, in Imagining Legality: Where Law Meets Popular Culture, ed Austin Sarat (Tuscaloosa: University of Alabama Press, 2011); Austin Sarat and Thomas R Kearns, ‘The Cultural Lives of Law’, in Law in the Domains of Culture, ed Austin Sarat and Thomas R Kearns (Ann Arbor: University of Michigan Press, 1998); Jessica Silbey, ‘Images in/of Law’, New York Law School Law Review, vol 57 (2012-2013).

expression of law ‘gives legal form to life and life to law’ as matter of jurisdiction.8

Juris-diction—the expressive act of law—‘gives us the structure of our existence.’9

If ‘law’, without definite article, is a subjective-expressive act of giving form to what is real and what is ideal, jurisdictionally, in a way that the two—reality, and how it is imagined ideally according to law—cannot be separated or finally resolved, then ‘the law’, with definite article, is the expression that takes form in this act. As an expression of law, ‘the law’ takes form as a dialectical image of how things are to be and how things ought to be, brought together in a flash, creating a distinct sense of how things are to be because that is how they ought to be and of how things ought to be because that is how they are to be.10 _{Expressed together}

authoritatively in an imaginative act of law, what remains normative becomes a matter of common sense: ‘this is the law’; whilst, as an image, the matter of ‘the law’ is also actuallyreal, giving form to existence regularly.11

(i) acts of domination

This is the fantastic reality of law, as an imaginative act of articulating normativity. But like the most powerful fairy tales, there is a violent side to this. To the extent that law is imaginatively articulate, law articulates, which is not only ‘to give expression’, but at the same time and in the process, ‘to bend at the joint’.12 _Thus

what is expressed as ‘the law’ is bent in the act of articulation. The expression that

8 _{As Dorsett and McVeigh show in their study of jurisdictional thinking: Shaunnagh Dorsett and}

Shaun McVeigh, Jurisdiction (Oxon: Routledge, 2012), 1.

9 _{Ibid. See also Peter Rush, ‘An Altered Jurisdiction: Corporeal Traces of Law’, Griffith Law Review,}

vol 6 (1997); Marianne Constable, Our Word is Our Bond: How Legal Speech Acts (Stanford: Stanford University Press, 2014); Austin Sarat and Thomas R Kearns, ‘Editorial Introduction’, in Rhetoric of Law, ed Austin Sarat and Thomas R Kearns (Ann Arbor: University of Michigan Press, 1996).

10 _{On ‘dialectical images’, see Walter Benjamin, The Arcades Project, trans Howard Eiland & Kevin}

McLaughlin (Cambridge: Belknap Press, 1999), 461-463.

11 _{This account of law appears to resemble the one developed by Fitzpatrick in his work on law.}

Fitzpatrick famously articulates a view of law in terms of a polarity between an indeterminate law, an illimitable law, which is not circumscribed by grounds of its own, on one side, and the

determinate laws that lay down the law in the most definite terms, on the other side. See, eg, Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001). At least to begin with, the similarities between Fitzpatrick’s view and the one I present here are due to the affinities between a negative-dialectical approach and a poststructuralist one. However—and as Fitzpatrick might point out—because one is always ‘beginning again’ (see note 23 below), the affinity has been refined and strengthened by my reading of Fitzpatrick’s work. I return to discuss Fitzpatrick’s influence below, in thinking about ‘the process of law’, which is concerned with the problem of dealing with the contradictory nature of law. This is where Fitzpatrick’s work on responsiveness is especially important to the approach to law I articulate here.

takes form as ‘the law’ is an image of things articulated: giving form to things, law, the expressive subject, does not simply express how things are because that is how things are, purely objectively, but represents how things are because that is how they ought to be.13

This is the origin of the ‘originary violence’ of law discussed by Walter Benjamin, Jacques Derrida, and Peter Fitzpatrick. Before getting to Benjamin, Derrida, and Fitzpatrick, however, first Adorno, who also points at this, the originary violence of law, in Negative Dialectics, when he addresses ‘the juridical sphere’ in reflection on Hegel’s Philosophy of Right:

Law [Recht] is the Ur-phenomenon of irrational rationality. In it the formal principle of equivalence becomes the norm, everyone is measured by [the] same standard. Such equality, in which differences perish, gives a secret impetus to inequality; persisting mythos in the midst of an only apparently demythologized humanity. The norms of law [Rechtsnormen] cut short what is not covered, every experience of the specific which is not preformed, for the sake of the seamless systematic, and then raises instrumental rationality to a second reality sui generis. […] The entire juridical realm is one of definitions. Its systematic commands, that nothing shall pass into it, which could escape from its closed circle, quod non est in actis [which is not in the act/deed]. This enclosure, ideological in itself, exerts real violence through the sanctions of law [Sanktion des Rechts] as the socially controlling authority, particularly in the administered world.14

In its ‘very form’, Adorno writes, law ‘expresses domination, the yawning difference of individual interests from the whole’.15 _{As an expressive form—as an instrument}

of rationality—‘the norms of law cut short what is not covered, every experience of the specific which is not preformed’—precisely what is non-identical to ‘the law’— and raises this rationalised reality, this legal identity, to the level of a second nature.16 _{Whatever fails to live up to this reality, this second nature, given form}

13 _{See also Austin Sarat and Thomas R Kearns, ‘Introduction’, in Law's Violence, ed Austin Sarat and}

Thomas R Kearns (Ann Arbor: University of Michigan Press, 1995).

14 _{Adorno, Negative Dialectics, 303-305.} 15 _{Ibid, 305-306 (my italics).}

16 _{Adorno uses the concept of ‘second nature’ to refer to rationalised reality, that is, a reality that is}

thought real, in two senses: mediated by thought, and mistaken for being natural. Buck-Morss summarises the concept of second nature as ‘a negating, critical concept which referred to the false, mythical appearance of given reality as ahistorical and absolute.’ ‘As Adorno employed the term in his own writings, “second nature” was one of a constellation of critical concepts together with “fetish”, “reification”, “enchantment”, “fate”, “myth”, and “phantasmagoria”, which were used to see through the mysterious “natural” appearance of objects in their “given” form to the historical dimension of their production. The purpose of such analysis was to destroy the mythical aura of

through its expression as ‘the law’, experiences law antagonistically. Thus law ‘expresses domination’: the law, always an inadequate expression of what is, nonetheless imposed on things, demands categorical conformity, under real threat of penalty. And this results from the chasmic structure of law—from the yawning difference that separates the empirical individual from the institution of law.17

In outlining this view of law, Adorno cites Hegel, specifically Hegel’s observation that ‘law’ [Recht] and ‘the real world of law’ [Rechts] are ‘grasped through thought,’

that through thought the form of rationality, namely universality and determinacy, is given, this, the law [Gesetz], is what that feeling which reserves itself at will, that conscience which places law [Recht] in the subjective conviction, looks at with grounds as what is most hostile to itself. It perceives the form of legality [Form des Rechten], as one of duty and one of the law [Gesetzes], as a dead, cold letter and as a fetter; for it does not cognize itself in it, hence is not free in it, because the law [Gezetz] is the rationality of the thing, and this latter does not permit the feelings to warm to its own particularity.18

In other words: the individual subject, who experiences law/Recht in the form of what ‘is’, expressed as ‘the law’/Gesetz, experiences it ‘as a dead, cold letter and as a fetter’. The distinction here between ‘Recht’ and ‘Gesetz’ is critical, as the distinction between ‘law’ and ‘the law’. Recht, as law—expressing right—gives form as a conceptual matter to things, as ‘this, the law [Gesetz]’; thus the law, as Gesetz— anexpressionof right—takes form as ‘the rationality of the thing’, as matter of law. And as the rationality of the thing—as a conceptualisation of how ‘things are’ by right—the law is experienced hostilely by a life that overflows rationality, that refutes its sentence and continues to play out beyond the grasp of every rational order. Everything remains non-identical to law’s imagination of things, and so nothing is recognisable in the law apart from its image, which is never adequate. Law, addressed to its images of things, dominates everything.

Adorno thus points to both meanings of articulation: to give expression, and to bend at a joint. Adorno’s apparently pessimistic verdict is concerned with the

their legitimacy.’ Susan Buck-Morss, The Origin of Negative Dialectics: Theodor W Adorno, Walter Benjamin, and the Frankfurt Institute (New York: The Free Press, 1977), 55.

17 _{This returns to the meaning of ‘chaos’ discussed in the Introduction, as a ‘yawning gulf, chasm, or}

abyss’; see also ‘chaos, n.’, OED Online, December 2015.

real consequences of articulation, in this case, the consequences of law as the articulation of normativity. Everything, cut short by the norms of law: every thing, raised to a second reality sui generis, as the material of law. In giving expression to reality in terms of ‘the law’, acts of law, as acts of articulation, are seen to bend reality, giving form to it as what, from the conceptual perspective, is, imagined to be its proper, natural form. Thus in the act of articulation, what ‘is’ is raised to a second nature, that of the law; and in the process, what is, now identified with the rational reality of a law that is expressed sui generis, is cut short, becoming non- identical with what is ‘the law’. What is ‘more’: becoming the stain of an irrational rationality that will not entirely vanish.

Thus the violence of law has its ‘origin’ in the contradictory experience of being, inseparably apart. Copulation, which holds out the hope of an existential synthesis, producing the one out of the two, produces difference as much as sameness, a third that is neither the one nor the other, nor simply whole in itself, but what is, inseparably apart. The law that takes form through the Act is this: no synthesis in fact, but a configuration that nonetheless establishes the context of the existential judgment. ‘The law is the law’, as the sentence holds out, but what ‘is’ the law is also always otherwise, as experienced by the subjects within jurisdiction. The violence of law originates in this contradiction, in-between the synthesising act and the demand that what has been disseminated must conform to the synthetic prescription in the way it lives. That is, the violence is in the statement, ‘the law is this’, intensified and made terrifyingly real in the re-statement, ‘the law is the law’, silencing the voices that say ‘this is not law’.19

(ii) acts of emancipation

The violence of law has its origin in the contradiction, but the contradiction also originates the law. Put simply, there would be no law to speak of without it being

19 _{Macdonald has articulated the concrete experience of this in his work on legal pluralism. For an}

introductory paper on this, see Martha-Marie Kleinhans and Roderick A Macdonald, ‘What is a

Critical Legal Pluralism?’, Canadian Journal of Law and Society, vol 12 (1997). Macdonald develops this further in Macdonald, ‘Custom Made’. The point relevant to this discussion is summarised in the following passage: ‘As agents, legal subjects understand the normativity of law as originating in their own actions and interactions; that is, they learn about law, first and foremost, from

themselves. This is not to say that that they reject the word. What they reject is the notion that the pre-existing word and accompanying institutional rituals, sacraments, and dogma are the source and force of law. […] The meaning of the word is to be understood in actions and interactions’. Ibid, 311 (italics in original). I discuss this further in Part 2 of Chapter 3.

spoken of. Inarticulate, law remains implicit at best: sensed but its sense never made explicit. The act of articulation is required for law to be the law. As such, the violence that flows from law’s contradictory nature is not simply a matter of law- as-subject dominating its object. This violence is also hopeful, also emancipatory. At least these are the claims I now turn to examine.

Adorno does not examine this directly, in terms of law, but this is the implication of his treatment of conceptualisation as a means of both domination and emancipation discussed in Chapter 1. Recall: as an act of domination, a concept cuts short what it intends to express, as its object; and yet, without giving form to the object conceptually, the object would remain unrecognised, sensed but not made sense of. Rather than existence cleaved into what is conceptual and what remains non-conceptual, existence would remain meaningless, never being, made sense of (being as nothing). Or rather, because humans, as conscious subjects, are thinking subjects, always making sense of existence, the result of not actively thinking would be to abandon the object to how it is nonetheless recognised by other articulate subjects (being as given). Conceptualisation, as re- conceptualisation, is therefore emancipatory to the extent that it works to overturn the untruth of what has been given, moving the concept towards its non- conceptual aspect.

Bringing this to bear on the concept of law, to begin with, merely sensing what is law as a normative matter might be sufficient most of the time, but when my sense of what is law and your sense of what is law come into conflict, a decision has to be made as to what is the law. Whilst this decision necessarily cuts short both senses of law, yours and mine, to a greater or lesser extent, in articulating a common sense of law (‘the law is this’), the decision is nonetheless necessary if the conflict is to be resolved by law. The legal decision might substitute a harshly singular untruth—‘the law is this’—for the amorphous truth that is most just in respect of an infinite plurality of difference, but the definite injustice of a decisive law is nonetheless more just than the indefinite justice of an indecisive law. The decisive cognition is as necessary as it is violent, as just as it is never fully just.20

As Fitzpatrick writes, ‘the “original” violence pertaining to law’ is the ‘incessant violence which inevitably follows from there not being an origin and

20 _{See Jacques Derrida, ‘Force of Law: The "Mystical Foundation of Authority"’, Cardozo Law Review,}

from law having to originate in each act of legal decision.’21 _{Thus every act of legal}

decision-making—stating ‘the law is this’—gives form to law as a ‘fresh judgement’.22 _{And yet, what is ‘the law’ remains intentional and not ontic. The}

result is that what ‘is’ the law remains in need of a fresh judgment, either to affirm that ‘the law’ is, in fact, ‘the law’, or else to amend the initial act, to answer the question, ‘the law is this?’, with a new statement, ‘the law is this’.

Articulating what is the law becomes even more imperative when the situation is not simply one where you and I, amongst others, have a sense of law as a normative matter and every now and again need to articulate what is the law to avoid or resolve conflict, but when what is the law has already been articulated. In this situation, the question of justice is not simply to decide what is the law for the first time—to make common sense of what is law in relation to your sense and my sense—but to do this also in relation to a previous expression of law. The legal decision is emancipatory in this situation in that it is an act of ‘beginning again’,23

holding out the potential of deciding again what is ‘the law’ in response to the experience of legal subjects. This is about overturning the untruth of the law, as the injustice of the law, by moving it towards what is more, true and just.