Augsberg 2010

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Reading Law: On Law as a Textual

Phenomenon
Ino Augsberg
Published online: 19 Dec 2013.
To cite this article: Ino Augsberg (2010) Reading Law: On Law as a Textual Phenomenon, Law &
Literature, 22:3, 369-393
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Reading Law: On Law as a Textual
Phenomenon
Ino Augsberg
Downloaded by [The University of Manchester Library] at 16:56 04 December 2014
Abstract. In contrast to recent German debates stating that jurisprudence should transform itself from
a hermeneutic science of texts into a practical science of decision making, this essay proposes a return
to the text. Text, however, will then have to be understood no longer as merely a written form of lan-
guage. Rather, we should attempt to conceive of the legal system itself as a specific form of textuality.
I try to develop and elaborate this idea by regarding law from the various perspectives of Paul de
Man’s literary criticism, John Austin’s discussion of performative utterances, Roland Barthes’ decon-
struction of hermeneutics, media theory, and an ex negativo approach based on Carl Schmitt’s scorn
for normativism. Finally, I ask for possible practical consequences that the newly designed textual
understanding of the legal procedure might have.
Keywords: textuality, hermeneutics, literary theory, deconstruction, Paul de Man
Do we really know what we do when we read legal texts? Or is this focus on

reading a rather old-fashioned, now obsolete form of jurisprudential meth-
odology that has to be replaced by new perspectives? In some current Ger-
man debates in the field of public law, the second question is answered in the
affirmative. Legal scholarship is said to face significant changes. To be ad-
equately prepared for the challenges of modern society, jurisprudence will
have to transform itself from a hermeneutic science of texts into a pragmatic
science of actions.1 What we need, according to the proponents of this idea,
is a transition from the currently dominant “application-oriented science of
interpretation to a law-making-oriented science of actions and decisions.”2
Remarkably enough, though, this abandonment of traditional text orienta-
tion does not pay much attention to the actual concept of a “text.” It does not
Law & Literature, Vol. 22, Issue 3, pp. –. issn 1535-685x, electronic issn 1541-2601. © 2010 by The
Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission
to photocopy or reproduce article content through the University of California Press’s Rights and Permis-
sions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2010.22.3.
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L a w & L i t e r a t u r e • Vo l u m e 2 2 , N u m b e r 3
ask whether and to what extent the alleged necessity of change might itself be
based on an inadequate idea of how texts and interpretations work.
This deficiency is not simply an anomaly within particular contemporary
debates, but rather is typical of jurisprudence in general: In spite of all the oft-
repeated demands for an increase in interdisciplinary research,3 jurisprudence
has shown a remarkable indifference towards the discussions of texts and tex-
tuality that began decades ago within literary criticism and have continued
ever since.4 From this point of view, even methodological approaches that
consider themselves particularly modern appear, upon closer examination,
strangely old-fashioned: “[T]hough the traditional legal method is criticized
as reductionistic and one-sided, the remedy for these shortcomings is not seen
in a fundamental change of methodological perspective, but rather in the mere
addition of additional perspectives that supplement and relativize the conven-
tional perspective.”5 As an alternative to this pseudomodern approach, to
what extent could a return to the text and its particularities, informed by the
insights of literary criticism, offer an all-encompassing new methodological
approach appropriate for the modern legal system? The following essay ex-
plores this question in six different steps, in the process providing a general
outline of what a more detailed answer might look like.6
I.
The first step is to examine why it is inadequate merely to concede that the
process of interpreting statutes can no longer lead to unambiguous results.7
Such a concession proves to be problematic already because of its inherent
historicism, for it is extremely doubtful that there was ever a time when the
clearly defined facts of a case were confronted with equally clearly defined
statutes that could simply be applied to those facts.8 What needs to be ex-
plained more precisely, in contrast to this simplistic model, is the inherent
situation of interpretation itself. This situation, and the indeterminacy to
which it gives rise, should not be regarded merely as a pathological condition
that needs to be overcome through the therapeutic use of a certain “language
medicine.”9 “It is,” literary critic Werner Hamacher declares, “one of the
trivia of literary criticism that every text is open to an illimitable abundance of
interpretations, applications, and reactions; but most crucially, this manifold
of interpretive possibilities does not indicate a lamentable insufficiency of the
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Augsberg • Reading Law
interpreters that could be healed in a messianic moment; rather, it is a struc-

tural effect of the constitution of language itself. . . . The structure of language
does not simply make different interpretations of texts possible, but it does so
with necessity.”10
This structural necessity affects not only the interpretation but also the
preceding, seemingly simpler process of reading legal texts. Following Paul
de Man, I want to propose a method of reading that prompts us “to look be-
yond natural experience or its mimesis to a specifically linguistic dilemma”11:

If we think of reading in the usual way, as referential understanding, then
this process becomes apparent as a paradoxically possible-impossible opera-
tion. De Man’s declaration that the “co-presence of intra- and extra-textual
movements never reaches a synthesis,”12 spoken mainly in regard to meta-
phors, applies to language in general: Every reading is riven, not able to form
that unity of meaning that constitutes the basis of a meaning-oriented act of
understanding:
Every construction, every system—that is, every text—has within itself the
ignorance of its own exterior as the rupture of its own coherence which it can-
not account for. No text can remove itself from a relation to the extralinguistic,
and none can determine that relation. This undecidable relation to what it is
constantly related to, prevents the text from closing into a totality.13
Since we can never tell for sure whether what is being said is not merely
functioning as a form of self-attribution of language, the referentiality of lan-
guage is always precarious. The promise—in German: Versprechen—of lan-
guage remains unfulfilled.14 “Die Sprache verspricht (sich),”15 de Man writes in a
“highly ironic, but necessary conjunction of Heidegger’s gnome ‘Die Sprache
spricht’ and Freud’s vocabulary.”16 To “the extent that it is necessarily mis-
leading, language just as necessarily conveys the promise of its own truth.”17
The reference to the denominated objects constitutes, at the same time, the
difference by means of which language exempts itself from the relation to real-
ity. Every text subverts its own coherence. It cannot be received as a compact
entity, as the bearer of one certain meaning. Reading, in this sense, is
an allegory of unreadability, . . . which cannot sublate the aporia of its opera-
tions to the unity of an act, in which the understanding could be certain of its
own impossibility and could construct on this certainty a new, negative herme-
neutics of a “free” play of associations but in which it articulates this aporia
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as the continued discrepancy between the necessary and the impossible act of
reading—as an ironic one.18
A reading that does not try to hide, but that instead analyses and learns to deal
with the inevitable immanent ruptures within every text, can be characterized
as deconstructive. This type of reading supposedly does not destroy but, on
the contrary, “saves the text.”19 As Barbara Johnson explains:
The de-construction of a text does not proceed by random doubt or arbitrary

subversion, but by the careful teasing out of warring forces of signification
within the text itself. If anything is destroyed in a deconstructive reading, it is
not the text, but the claim to unequivocal domination of one mode of signifying
over another. A deconstructive reading is a reading that analyses the specificity
of a text’s critical difference from itself.20
The ironic aporia elaborated by such a form of reading does not apply only
to the field of literature in the narrow sense. It affects specifically juristic oper-
ations as well. The disjunction of the semantic function and the formal struc-
ture of language, of hetero- and self-reference, which cannot be described
as a simple polarity but rather constitutes the undecidability of grammatical
and figurative readings, has a direct parallel in the typical juridical process of
applying a norm. On the one hand, this process must comply with its own
requirements of internal consistency, while on the other hand, it must not fall
short of its reference to the external sphere. Law proves to be a text in an
eminent sense because it reproduces, in its own genuinely juristic modus op-
erandi, the undecidability between the demands of grammar and those of ref-
erentiality. “The legal or political text makes the structure of texts in general
more explicit. . . . It ‘defines’ the general text better than any other.”21 Every
statute remains clamped between the twofold, conflicting claims for general-
ity on the one side and applicability to the singular case on the other:
[J]ust as no text is conceivable without grammar, no grammar is conceivable

without the suspension of referential meaning. Just as no law can ever be writ-
ten unless one suspends any consideration of applicability to a particular entity
including, of course, oneself, grammatical logic can function only if its referen-
tial consequences are disregarded.22
Only if its generality is assured through a certain brutality toward the referen-
tial relation can the applicability of a law as a general norm be guaranteed.
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From the point of view of the legal text, it is this generality, which ruthlessly
rejects any particularization, which allows for the possibility of its coming into
being. Within the textual model, particularization corresponds to reference,
since reference is the application of an undetermined, general potential for
meaning to a specific unit. The indifference of the text with regard to its refer-
ential meaning is what allows the legal text to proliferate.23
But at the same time, the suppressed referentiality has to be identified as the
juridical structure par excellence,24 for the statute insists on referring to its
own applicability.
[N]o law is a law unless it also applies to particular individuals. It cannot be left
hanging in the air, in the abstraction of its generality. Only by thus referring
it back to particular praxis can the justice of the law be tested, exactly as the just-
esse of any statement can only be tested by referential verifiability.25
This explains the necessity of a “juxtaposition of two readings in which the

first forgets and the second acknowledges the linguistic structure that makes it
come into being.”26 The precondition of legal interpretation is formed by two
readings that necessarily contradict each other, and therewith constitute the
unreadability of the law.
II.
What we have to examine, then, is how the traditional self-description of the

legal system reacts to this dilemmatic double-bind situation; what we see is
that it has great difficulties in dealing with these kinds of ironic aporias. The
fundamental uncertainty that threatens to enter the system so obviously con-
tradicts the system’s function of stabilizing normative expectations27 that the
system cannot allow this uncertainty to reveal itself openly. The construction
of the legal system can therefore be regarded as the more or less successful
attempt to avoid this irony. The unreadability is concealed by a prearranged
primacy of the voice: as juris-diction. The judicial judgement is, in a classi-
cally phonocentric way, supposed to guarantee the unity of what is heard and
what is understood. Not even an otherwise advanced methodology questions
this perspective, but, on the contrary, reaffirms it: “the judge does not listen
and read, but he writes and speaks. . . . The judge does not spell every letter of
the law. He articulates himself as the law.”28
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Yet a modified concept of text and writing might help to clarify what exactly
goes on in the legal process.29 To take a closer look at such a modified concept,
we can start off with John L. Austin’s distinction between performative and
constative speech acts. Characteristic for performative speech acts is that to
utter a sentence in this way “is not to describe my doing of what I should be
said in so uttering to be doing or to state that I am doing it: it is to do it.”30
From this perspective the legal judgement appears as a performative speech
act par excellence: The announcement of the judgement in a legal process is

more than a mere declarative statement with regard to an established issue.
Although the judgement, at first glance, suggests that it is only repeating what
was established before by statute, namely the state of the law, the belief that
the judge’s activity is so limited should, at the latest as of Napoleon’s lamenta-
tion over his “code perdu,”31 have vanished. But if we can no longer believe
in the criteria of a steadfast legal text, we have to ask for the particular condi-
tions under which a performative speech act can said to be correct. Whether
such an act is “right,” that is, produces the effects it is supposed to in an ad-
equate manner, depends, according to Austin, on the context in which the act
takes place: “Speaking generally, it is always necessary that the circumstances
in which the words are uttered should be in some way, or ways, appropriate.”32
Though a complete standardization of the situational embedding might not be
needed, consistent comprehensibility requires a concept of the “total speech
situation,”33 that is, of the entire context.
The problem, then, is whether such totalization is possible.34 It is a prob-
lem of factual circumstances as well as of time. With regard to the fac-
tual dimension, the context proves to be, in a double sense, illimitable and
uncontrollable:
First, any given context is open to further description. There is no limit in prin-
ciple to what might be included in a given context, to what might be shown to
be relevant to the performance of a particular speech act. . . . [Secondly,] any
attempt to codify context can always be grafted onto the context it sought to
describe, yielding a new context which escapes the previous formulation.35
With respect to time we find an analogous problem: Performative utterances

function only because of their embeddedness within ritualized patterns of
behavior, which have to combine experiences of the past with anticipations of
the future. However,
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if the temporality of linguistic convention, considered as a ritual, exceeds the

instance of its utterance, and that excess is not fully capturable or identifiable
(the past and future of the utterance cannot be narrated with any certainty),
then it seems that part of what constitutes the “total speech situation” is a failure
to achieve a totalized form in any of its given instances.36
In a paradoxical way, the condition of possibility of successful performative

speech acts is at the same time the condition of their impossibility. No “mean-
ing can be determined out of context, but no context permits saturation.”37
But the totalization is not only not possible, it is also not desirable, for it would
lead to a completely automatic language beyond every comprehensibility. “A
totally stabilised context would make the iterability of signs impossible, since
one could not dissolve the signs from this hermetic context.”38 The theory of
speech acts deconstructs, if taken literally, its own preconditions.
This iterability that prevents the totalization of context is a characteristic
element of the legal process as well. Every positing carried out in legal judge-
ments is “already iterability, a call for self-preserving repetition”39; every legal
decision, in the singularity of its performative occurrence, takes place as an in-
scription in an actual, or at least virtual, plurality of corresponding operations.
Nothing else is meant by the requirement that the facts of a case be subsumed
under the “controlling” norm. The more sharply one focuses on this aspect
of repetition, the more the performative element, which actively introduces
new perspectives, recedes behind the merely declarative process of describing
the outcomes of previously decided cases. This, again, legitimates the self-
interpretation of judgements as nothing more than a statement of the state of
the law. The judgement says what it does and does what it says, and hence,
autologically, describes its own process.
If we take this fully into account, the possibility of a clear distinction be-
tween constative and performative speech acts collapses.40 As a performative
act, every judgement is, coinstantaneously, constative.41 Austin himself is
not unaware of the fragile, if not to say fictitious, status of his construction:
Admittedly, “there is danger of our initial and tentative distinction between
constative and performative utterances breaking down.”42 This danger can-
not be eliminated. “The differentiation between performative and constative
language . . is undecidable; the deconstruction leading from one model to the
other is irreversible but it always remains suspended, regardless of how often
it is repeated.”43 There is no peaceful coexistence between these two strangely
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interwoven types of language. Their undecidable community constitutes a

paradoxical constellation. For if “performatives are creating what they are
talking about, they contradict the constative assumption of the preconditional
status of what one is referring to.”44
Hence the constative and the performative movements constitute two
“interdependent but incompatible linguistic functions: the function of un-
verifiable, nonreferential positing, and the referentiality that knows no secure
ground other than that positing it disputes.”45 It is this combination of two

irreconcilable perspectives that marks the judgement as, according to a defini-
tion given by de Man, a text in an eminent sense:
We call text any entity that can be considered from such a double perspective: as
a generative, open-ended, non-referential grammatical system and as a figural
system closed off by a transcendental signification that subverts the grammati-
cal code to which the text owes its existence. The “definition” of the text also
states the impossibility of its existence and prefigures the allegorical narratives
of this impossibility. . . . A text is defined by the necessity of considering a state-
ment, at the same time, as performative and constative.46
This janus-facedness of the text provokes the necessity of interpretation,

which, despite all attempts at stabilization, continuously produces new uncer-
tainties. In this sense, we can understand “law as text” as a chiffre for the fail-
ure of the sharp distinction between constative and performative speech acts.
III.
This reference to the performative component of the judicial process indi-

cates that, in order to understand the textuality of law, one has to go beyond
the usual idea that a science of texts suggests. Once the performative compo-
nent is taken into account, the understanding of legal texts can no longer be
characterized as a simple “cognitive achievement.”47 Contrary to the classical
conception of hermeneutics, which conceives of the process of understanding
a text as a form of explication and in this context regards reading as a process
of elaborating the meaning of what is being read, we can raise a question that
addresses an even earlier stage of the reading process: “What would happen
if, for once, one were to reverse the ethos of explication and try to be really
precise, replacing (or at least trying to replace) paraphrase by what one would
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have to call genuinely analytic reading, just to see what would ensue?”48 This
change of perspective in the direction of a reader-oriented point of view gives
rise to a method that is no longer focused on the author’s intentions or the
abstract meaning of the text. What postmodern theories apostrophise as the
“death of the author” 49 affects the concept of meaning itself.
The difference becomes particularly evident in Roland Barthes’ definition
of the reader’s role: Barthes does not conceive of this role as merely a sup-
portive, albeit necessary, part of the process that produces a text’s meaning.50
His approach is far more radical. By transforming the usually singular word
“meaning” into a strange plural, he dismisses the entire traditional model.
“Once the Author is removed, the claim to decipher a text becomes quite fu-
tile. To give a text an Author is to impose a limit on that text, to furnish it with
a final signified, to close the writing.”51 The assumption that in Barthes’ the-
ory the text “is no longer seen as a prefabricated product with a fixed, indeed
still hidden yet definite and forever inscribed meaning, but rather as an open
texture, whose meaning is always updated by the reader,”52 is, to say the least,
capable of being misunderstood. In this formulation, Barthes’ model seems
to still cling to the traditional concept of meaning, whereas the abandonment
of this concept is precisely the aim, as well as the consequence, of Barthes’
model. Therefore, Barthes cannot be cited in support of either side in the clas-
sic hermeneutic debate about whether a more subjective or a more objective
method of interpretation is desirable. He rejects the role of hermeneutics alto-
gether. The author is replaced by a particular textual operation:
“Text” means “tissue”; but whereas hitherto we have always taken this tissue
as a product, a ready-made veil, behind which lies, more or less hidden, mean-
ing (truth), we are now emphasizing, in the tissue, the generative idea that the
text is made, is worked out in a perpetual interweaving; lost in this tissue—this
texture—the subject unmakes himself, like a spider dissolving in the construc-
tive secretions of its web.53
This transformed conception of reading, brought about by abandoning the

assumption that reading can lead to epistemic certainty, also contains a norma-
tive element, which J. Hillis Miller concisely calls an “ethics of reading”:
By “the ethics of reading” . . . , I mean that aspect of the act of reading in

which there is a response to the text that is both necessitated, in the sense that
it is a response to an irresistible demand, and free, in the sense that I must take
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responsibility for my response and for the further effects, “interpersonal,” in-
stitutional, social, political, or historical, of my act of reading.54
From a legal perspective, this normative aspect of reading can be paraphrased

in terms of a theory of democracy: A positive expression of the democratic idea
would consist in not breaking off debates prematurely, but rather in allowing for
their open-endedness. This theory of democracy would emphasize difference
rather than identity, and it would judge a democracy not by its results, but by its
procedural elements, an ongoing process that subverts every given result.
It is precisely this primacy of difference that certain theories of democracy
seek to banish by making consensus the guiding principal of the democratic
process. The fact that this banishing occurs less with regard to the substantive
than with regard to the formal procedural aspects of the political process does
not suffice to disguise its basic movement:
Crucial is the gesture of restoring supposedly irreducible “truths,” antecedent

to any form of immanent controversies (and be they only the formal proce-
dures of correct speech), which everyone would always already have had to
recognize and which everyone would always already be obligated to follow if a
merciless war of destruction—and that is, in the first instance, the war against
those who refuse to accept those irreducible truths—is not to come. By this
means, such a “theory” transforms philosophy into the formal continuation of
the old theology, whose (salutory) certainties it replaces—thereby ‘sublating’
them—with its own “logical” formalisms relating to the procedure of argu-
mentation. In short: The community’s political institutionalizations, its imma-
nent, always open constitution, which can never be completed for once and for
all, is replaced by this constitution’s philosophical foundation.55
With remarkable candor, Habermas in particular claims a theological heritage

for his program of completing the unfinished project of modernity, thereby
exposing his own pretensions. The morality Habermas constructs on the ba-
sis of discourse ethics is supposed to conserve something of the “penetrating
strength of sacral original powers; it penetrates the in-the-meantime function-
ally differentiated levels of culture, society, and personality in a manner that
is unique for modern societies.”56 Instead of trying systematically to uncouple
the concepts of democracy and of sovereignty,57 discourse ethics merely finds a
new way of filling the place of the sovereign, which had become empty. By at-
tempting to fill the vacant position with deliberative processes, it reestablishes
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a metaphysical, authoritarian ideal. By replacing the earlier philosophical uni-

versalia, contemplation and reflection, with the new paradigm of “commu-
nication,” discourse ethics gives rise to an “intersubjective idealism”58: The
replacement of the historical with the speculative Good Friday59 is followed
by a communicative turn. Habermas’ “theology of communication”60 fails to
understand that, just as communication cannot end in consensus without de-
stroying itself,61 so the democratic process cannot be linked to the category
“truth” without suffering irreparable harm.62 “Whoever believes that abso-

lute truth or absolute values are inaccesible to human understanding has to
accept that not only his own, but also the foreign, contrary opinion might
be possible. Therefore relativism is the weltanschauung presupposed by the
democratic idea.”63
With regard to our transformed concept of hermeneutics, this relativism
encompasses not only an indifferent acceptance of divergent possible inter-
pretations, but includes the fundamental priority of plurality over every—
whether transcendentally or pragmatically constructed—sovereign unity.
The interpretation demanded by a specific text, in its plurality, is in no way

liberal; it is not a question of conceding some meanings; magnanimously ac-
knowledging that each one has its share of truth; it is a question, against all
in-difference, of asserting the very existence of plurality, which is not that of
the true, the probable, or even the possible.64
Contrary to this priority of plurality, Habermas’ conception unintentionally

confirms a general thesis by Michel Foucault about the current state of politi-
cal thinking: “We need to cut off the King’s head: in political theory that
has yet to be done.”65 Since the king, however, is in the classical political model
only the earthly representative of higher powers,66 what needs to be decapi-
tated is the entire system of occidental ontotheological metaphysics.67 Hence
murdering the king is a process of secularization, not only as an alienating
adoption of, but also as a fundamental abandonment of the theological concept.
This, at least, is the horizon of Barthes’ analysis of the death of the author:
[L]iterature (it would be better from now on to say writing), by refusing to

assign a “secret,” an ultimate meaning to the text (and to the world as text),
liberates what may be called an anti-theological activity, an activity that is truly
revolutionary since to refuse to fix meaning is, in the end, to refuse God and his
hypostases—reason, science, law.68
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Democracy, then, is not merely the replacement of the old sovereign with a
new governing subject, “demos,” constituted by way of contrafactual assump-
tions. Rather, democracy takes shape as a political system in which governance
is always fractured and the status of subjectivity always newly disseminated.
The democratic process would then designate a movement of constant repeti-
tion—a movement, however, that not only reproduces itself in a tautological
sense, but that, by reiterating itself within its own structures, allows for the
emergence of something new. “Reading” is just another word for this process.
I V.
According to literary critic Aleida Assmann, “writing’s claim to and promise

of eternity both rely on two basic assumptions: first, that the physical exist-
ence, and second, that the readability of texts is guaranteed.”69 As we have
seen, the general readability of texts is very much in doubt. This raises the
question of the materiality or mediality of law: What were the basic media
of law, how were they modified in the course of time, and how did this affect
the process of interpretation? To raise these kinds of questions already re-
quires that we abandon the notion of the “possibility of separating a complex
of meaning from its mediality, i.e. of keeping it apart from the difference be-
tween its appearance on a printed page, on the monitor of a computer, or as a
voicemail-message.”70 Once we abandon this notion, our discussion becomes
part of a more general task: “Law has to be conceived of and analysed as a
media constellation.”71 If we take a closer look at the process of transforma-
tion that led from archaic laws inscribed in stone tablets—which obviously
symbolized the stability of the legal order—to modern, virtual, hypertextual
forms of law-making—which stand for the flexibility of positive, and hence
changeable, law—we can observe that the common assumption that writing
has decreased in importance in the age of digitalization not only misunder-
stands the situation within which laws first came to be written down, but also
underestimates the enduring relevance of texts in the computer age.
The physical substrate of positive law, in which its words are inscribed,
cannot be separated from attempted readings, nor can it be regarded merely
as supplemental information in the manner of a pseudo-McLuhanism. The
fact that every linguistic operation takes place as a form in a medium does
not remain an external circumstance, but rather affects the form itself. “The
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text organizes itself based not only on the ideal meaning of its elements, but
materiality itself intervenes in the organization of the text and may, for in-
stance, open up transitions that the use of arguments can no longer control.”72
Conceived of as a paradoxical remainder that denies every attempt at gaining
hermeneutical access, the materiality of language undermines a kind of sec-
ond-order idealism that would like to find meaning even in the physical basis
of texts, but that in the process only reproduces the dichotomy of signifier and
signified. Mediality cannot easily be interpreted as a medially communicated

message; rather, it constitutes a resistance to understanding:73
Media participate in the production of meaning in a way that speakers neither

intend nor are able to control, but that instead comes to bear “behind their
backs” as a non-discoursive power. It is the mediality of language that makes
all conceptions of speech as an intentional, intersubjectively controllable ma-
nipulation of signs fall short.74
From this perspective, the interplay between signifier and signified, as tradi-
tionally understood, is just a variation on the more general problem of how to
deal with a certain logic of repetition: According to this logic, every repetition
simultaneously requires both a de- and a re-contextualization. The identity
of what is repeated can only be understood as a form of difference.75 “No
repetition leaves the repeated identity intact, for it is always a way around the
Other, the blank spaces, that divide the repetitions from each other.”76
The simple opposition of stability and variation fails to capture this perspec-
tive, and it fails to do justice to the functional aspects of the writing process.
These functional aspects themselves must be reconsidered. “In a dynamically
stabilized auto-poietic system of social communications there is no interest in
the stability of meaning as such. The problem consists in anticipating a new
interest in the same information, not simply in the idea that what endures is
better than what is transitory.”77 It is this general logic of difference and rep-
etition that the early stone tablets dissimulated, but that becomes explicit in
hypertexts. This is the logic of writing.
V.
To illuminate further the logic of writing and the specifically legal necessity
of the textual form, it might be helpful to add another, negative perspective.
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To do so, we must take a closer look at exactly the opposite position, analyz-
ing conceptions of law that combine a preference for the spoken word with
a distrust of positive law and that, since St. Paul’s teaching on the “end of
law,” often carry an antisemitic subtext.78 A typical exponent of this idea is
the “most discussed German jurist of the 20th century,”79 a legal scholar who,
according to Hannah Arendt, was “without doubt the most important man in
Germany in the areas of constitutional and public international law”80: Carl
Schmitt. A note in his posthumously published Glossarium, written in the year

1948, states: “My disapproval of positivism came with growing age. Had it
made more sense in youth? Compare with this the disapproval of ‘positivity’
by the young Hegel. Positivity = legality = Jewry = despotism = paroxysm of
‘ought to do’ and norm.”81
Consequently, Schmitt’s own conception of norm, the nomos, is described
as a deliberately alegal, antipositivist figure, whereas statutes in a normativist
sense are supposed to be a phenomenon of degeneration. Schmitt wants to
give back to the word nomos “its initial strength and greatness, though it has in
the course of time, already in the ancient world, lost its original meaning, and
has at last sunk to an insubstantial, general designation for every normativist
regulation and adjustment.”82 Schmitt understands nomos—in a philologically
dubious manner83—as the original division and distribution, the “Ur-Teilung
und Ur-Verteilung”84 of a people’s land; he describes it as a “space-dividing
basic operation.”85 In this “original meaning,” nomos is “the complete im-
mediacy of legal force not mediated by statutes; a constitutive historical
event, an act of legitimacy, which gives meaning to the legality of the bare
statute in the first place.”86 This explains why Schmitt, employing a typical
antisemitic stereotype, could reproach Kelsen’s “Pure Theory of Law” for its
groundlessness.87 Not only did Schmitt explain “normativism” as one of the
“three types of legal thought,” but he assigned it to an—unnamed, yet eas-
ily recognizable—people. “There are peoples,” Schmitt declares, “that exist
without ground, without state, without church, only in the law. For them, the
normativist thought appears to be the only reasonable form of legal thought,
and every other form of thought appears to be incomprehensible, mystical,
fantastic, or ridiculous.”88
Schmitt’s resistance to this type of thought, which sees itself as being ob-
ligated only to law, goes hand in hand with his effort to contrast the liberal
notion of equality before the law with a homogeneity of a different kind.89
Starting from the initial observation that a plurality of voices pronounces the
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same words and sentences differently, and proceeding to the assertion that
this phonetic difference has grave consequences for the process of legal inter-
pretation, Schmitt looks for a way to limit this plurality of voices while still
preserving the “legally secured position of the German public servant and the
independence of the judiciary.” His solution to this problem is what he calls
Artgleichheit, that is, “equality of nature”:
We are looking for a bond more reliable, more alive, deeper than the deceptive
bond established by the pervertable letters of a thousand legal paragraphs. Where
else could we find it than within ourselves and our own nature? Here, too, in view
of the indissolvable connection between officialdom and judicial independence,
all questions and answers lead to the necessity of an equality of nature, without
which a total leader state [Führerstaat] could not exist for one day.90
Why then should we, against the background of such statements, still
spend our time reading Schmitt? Don’t both Schmitt’s open and his hidden
antisemitic statements provide sufficient reason to assume that a modern le-
gal theory has nothing to learn from his ideas? This latter question must be
answered in the negative. The fact that it is impossible to adopt positively the
types of positions described above does not exclude the possibility of learning
something from Schmitt from an ex negativo perspective. The question that
must be asked, then, is to what extent this legal scholar’s work “corresponds
to a problem that transcends the horizon of the suggested solution.”91 What is
interesting about Schmitt’s work, then, is not what Schmitt propagated as his
“doctrine” or “lesson,”92 but rather what he feared most, and yet in this fear,
in the “courage of his fear,”93 perceived accurately and presented, at least in an
indirect way. In Political Romanticism, Schmitt calls it the “occasional.”94
Schmitt introduces this concept to describe the romantic movement. For
Schmitt, Romanticism, for the first time, reveals the true nature of the oc-
casional. It does so by placing the individual in the role previously reserved
for God, thereby subjectifying traditional occasionalism. Through this sub-
jectification, for the first time, everything can “really become an occasion for
everything, and everything that comes and everything that follows becomes,
in an adventurous way, incalculable.”95
What emerges is “an always new, but only occasional world, a world with-
out substance, and without functional connections, without steadfast leader-
ship, without conclusion and without definition, without decision, without
last judgement, endlessly proceeding, led only by the magic hand of chance.”96
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For Schmitt, the meaning of the occasional becomes still clearer when one
compares it to its opposite: the occasional “negates the concept of the causa,
i.e., the constraint of a calculable causation, and hence every commitment to
a norm. It is a disintegrating concept.”97 What Schmitt is describing here is
a “communicative network that experiences its own unfinishability and the
consequences of this unfinishability: the enablement of communication, the
despecification of the communicated meaning, and a privileging of connecta-
bility at the expense of form.”98 Romanticism presents “possibility as the higher

category.”99 What Schmitt fears is, in this context, not only a process of social
disintegration, in the sense of an “individually disintegrated society,”100 but
rather a change of epistemological categories, from substance to function,101
and a corresponding transformation of the concept of reason in which the
old paradigm of “hearing” (Vernehmen) is replaced by the new of paradigm
of “comparing” (Vergleichen).102 Romanticism begins once one no longer ac-
cepts things as necessarily existing, but rather considers them “interesting.”103
Expressed in the vocabulary of systems theory, Schmitt describes a turn from
hetero- to self-reference, from foundation by way of a predetermined con-
necting point external to the system—God, nature, tradition, and so on—to
a process that creates its own internal connectivity. “The consentement of ro-
mantic occasionalism creates a fabric that the external world cannot touch,
and therefore can also not refute.”104 Reality, for romanticism, “becomes but
an occasion. The object is without substance, without essence, without func-
tion, a concrete point around which the romantic play of fantasy floats.”105
The movement of Schmitt’s thought hence reveals itself to be a strangely
ambiguous maneuver in which a precise analysis simultaneously attempts to
suppress and combat that which it seeks to describe: a legal system without a
secure foundation that must always construct—that is to say, feign—its own
certainties. This is what Schmitt defines as the essence of legal positivism:
“the theoretical ratification of a social process characterized by the punctuali-
zation or occasionalization of the political foundation—whether this foundation
is called the state, political unity, or the constitution.”106 From our perspec-
tive, we can identify what Schmitt is describing as a textual phenomenon that
subverts the supposedly necessary “notion of the last authority, of an absolute
center.”107 A “text” in this sense is “henceforth no longer a finished corpus of
writing, some content enclosed in a book or its margins, but a differential net-
work, a fabric of traces referring endlessly to something other than itself, to
other differential traces.”108 What Schmitt calls the romantic “fabric” is a form
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of textuality or positivism no longer directly bound to law or to the hierarchi-

cal architecture of the legal order, but which instead constructs its own, no
longer primarily vertical, but rather horizontal, heterarchical order. Instead
of receiving their legitimacy from a supreme sovereign instance, the different
singular legal operations stabilize themselves by way of diverse connections
and interconnections. “Text,” then, no longer refers merely to the written
form of a primarily oral order, but rather describes the legal process as such.
VI.
A final, decisive question remains to be answered: What concrete consequences

could this new understanding of law’s textuality have for legal practice? As a
first response, one could reject the implication that such a relationship to prac-
tice is necessary and instead argue that upsetting the traditional methodology
is worthwhile in and of itself: “The power of ignorance, blindness, uncer-
tainty, or misreading is often all the more redoubtable for not being perceived
as such.”109 Yet it is undeniable that jurisprudence has a special relationship to
applicability. Hence, even a post-structuralist legal theory must do justice to
the legitimate demand for a “robust” methodology.110 Post-structuralist legal
theory is quite capable of rising to this challenge. Contrary to a widespread
misunderstanding, the fact that the deconstructive method demonstrates the
difficulties involved in reading and interpreting texts does not mean that the
method itself is arbitrary. Only when used ironically can “anything goes”
serve as a motto for so-called postmodernism.111 The fact that it is impossible
to assign a fixed meaning to a text—because every signified can simultane-
ously function as a signifier and every clear distinction between these two
elements hence collapses112—does not mean that every form of distinction has
to be abandoned. According to Derrida, there is no “question of confusing, at
every level, and in all simplicity, the signifier and signified. The fact that this
opposition or difference cannot be radical or absolute does not prevent it from
functioning and even from being indispensable within certain limits—very
wide limits. For example, no translation would be possible without it.”113
Accordingly, a more stable constitution of meaning might be possible in
other areas as well. This construction would then derive its legitimacy not
from an unassailable theoretical foundation, but rather from the functional
imperatives of practice. Although a reading is not entirely dictated by the
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text and instead depends on the “operations performed by the reader,” it

is “nevertheless from the power of a piece of writing that a reading draws
its power. For, the reader knows that there has to be a proper reading [une
bonne lecture].”114 The insight that there is no transcendent truth, no ultimately
verifiable meaning to a text, does not allow us to dispense with the effort of
distinguishing.
Understanding is not a version of a single and universal Truth that would exist as
an essence, a hypostasis. The truth of a text is a much more empirical and literal
event. What makes a reading more or less true is simply the predictability, the
necessity of its occurrence, regardless of the reader or of the author’s wishes.115
As an empirical process, successful reading must accept the plurality of data

and yet at the same time must try to organize these data by establishing at least
loose relationships. Admittedly, the reading process lacks any transcendental
touchstone; instead, successful reading must generate all of its criteria self-
referentially from within its own process. This is the problem with the origi-
nally Kantian notion that the task of reading is to understand an author better
than he understood himself.116 “There is simply no nature of the cognitive
object text determining our understanding and setting its limits. The ‘nature’
of the text is given to us only as a text, and is itself, instead of presiding over it,
subject to interpretation.”117
The “truth” of a text then consists only in the number of other possible
readings with which a particular reading is able to connect and for which it
is productive. This explains the need for a functional perspective: There is,
Roland Barthes declares, “no other proof of a reading than the quality and
endurance of its systematics; in other words: than its functioning.”118 How and
when a reading “functions” in this sense can only be decided within each con-
crete situation. In an increasingly pluralistic, fragmented society, law’s general
function may no longer be to stabilize normative expectations in the sense of
creating social homogeneity.119 Rather, under such conditions, defining social
“normalcy” requires shifting from an identity- to a difference-oriented per-
spective. Under conditions of uncertainty, the goal can no longer be to choose
the solution that enforces the greatest social homogeneity; instead, the goal in
making decisions should be to leave sufficient room for divergent connecting
operations. Law’s function is then no longer primarily to guarantee unity, but
rather to guarantee difference. Luhmann’s theory of fundamental rights120 can
serve as an example of this kind of legal theory. Under circumstances in which
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society has “dynamized its restabilization process, so that change has become
a constant,”121 the specifically legal activity, understood as a social immune
system,122 has to reprogram its immune reactions so that they focus more on
protecting diversity and variation. This is particularly true when it comes to
the need to defend the functional differentiation of society, whose respective,
possibly conflicting rationalities123 must be protected from colonization by
other, more dominant subsystems.124
Therefore, the task of law is, first and foremost, to protect self-reflexively
its own processes from possible extrasystemic influences. However, the differ-
ence-oriented perspective I am proposing not only affects law’s relationship
to external irritations; it must also be implemented within the legal system.
In particular, judicial interpretation has to reflect on its functional difference
from processes of law making. Though the judiciary can never completely
avoid law making, since the general norms can never perfectly address each
singular case and thus have to be supplemented by judicial creativity,125 the ju-
diciary must be careful not to exceed its authority by producing decisions that
are cryptopolitical in their effect.126 The judiciary must instead seek, in both
positive and negative ways, to guarantee that its decisions remain open to dia-
logue with future decisions: Because of its necessarily tentative, experimental
character, every judgement must take into account the possibility that, under
only slightly different factual circumstances, a completely different decision
might have been possible.
This focus on the singular case and the call for a corresponding level of
judicial self-restraint is not intended to abandon completely law’s function of
stabilizing long-lasting social orders. Therein lies the weakness of the “appre-
ciation of values” paradigm, which, because of its merely ad hoc weighings of
conflicting interests, is no longer able to give society any kind of structural ori-
entation.127 Such an approach asks too much of law even as it misunderstands
law’s actual function. Instead of trying to use law to create “just conditions”
directly,128 one should emphasize the indirectness of the legal function, which
consists primarily of guaranteeing structures and institutions.129 In keeping
with the indirectness of the legal function, the predictability of judicial deci-
sions, which makes the stabilization of normative expectations possible, could
be said—in keeping with the model of the iterability of signs characteristic
of the reading process— to consist in the fact that legal reasoning is neither
too general and hence cryptopolitical, nor too focused on the necessity of an
ad hoc “just solution,” but rather is oriented toward the figure of difference
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and repetition, that is, of iterability. Defining the judicial function in this way
would not exclude, but rather include procedures of an experimental kind,
including the possibility of reversing decisions. Changing the methodological
perspective from an appreciation of values paradigm to a paradigm of law’s
readability as a form of its “predictability” would then involve once again
conceiving of judicial decisions as part of a general fabric, that is, as text in a
new, more general sense. This would be an understanding of textuality that no
longer contrasts readability and unreadability, but rather emphasizes their in-
terplay. For the type of unreadability involved “does not arrest reading, does
not leave it paralyzed in the face of an opaque surface: rather, it starts reading
and writing and translation moving again. The unreadable is not the oppo-
site of the readable, but rather the ridge [arête] that also gives it momentum,
movement, sets it in motion.”130
1. Wolfgang Hoffmann-Riem, “Innovationsoffenheit und Innovationsverantwortung durch Recht.

Aufgaben rechtswissenschaftlicher Innovationsforschung,” 131 Archiv des öffentlichen Rechts 255, 263
(2006). (Unless otherwise noted, all translations are my own.)
2. See Andreas Voßkuhle, “Neue Verwaltungsrechtswissenschaft,” in Wolfgang Hoffmann-Riem,
Eberhard Schmidt-Aßmann, and Andreas Voßkuhle, eds., Grundlagen des Verwaltungsrechts, vol. 1,
Methoden—Maßstäbe—Aufgabe—Organisation (München: Beck, 2006), § 1. Cf. Christoph Möllers,
“Methoden,” in Hoffmann-Riem, Schmidt-Aßmann, and Voßkuhle, id. at § 3; Wolfgang Hoffmann-
Riem, “Methoden einer anwendungsorientierten Verwaltungsrechtswissenschaft,” in Eberhard
Schmidt-Aßmann and Wolfgang Hoffmann-Riem, eds., Methoden der Verwaltungsrechtswissenschaft
(Baden-Baden: Nomos, 2004), 9.
3. See, e.g., Helmuth Schulze-Fielitz, “Was macht die Qualität öffentlich-rechtlicher Forschung aus?,” 50
Jahrbuch des öffentlichen Rechts der Gegenwart. Neue Folge (2002), 1, 50.
4. See, for an exception that confirms the rule, Ralph Christensen and Kent D. Lerch, “Performanz: Die
Kunst, Recht geschehen zu lassen,” in Kent D. Lerch, ed., Die Sprache des Rechts, vol. 3, Recht ver-
mitteln: Strukturen, Formen und Medien der Kommunikation im Recht (Berlin/New York: de Gruyter,
2005), 55, 105, with reference mainly to Julia Kristeva. The situation is different in the United States,
where we find a lively debate on “law and literature” with prominent participants: see, e.g., Richard
Posner, Law and Literature: A Misunderstood Relation (Cambridge, MA: Harvard University Press,
1988); Martha C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon
Press, 1995); Guyora Binder and Robert Weisberg, Literary Criticisms of Law (Princeton, NJ: Princeton
University Press, 2000).
5. Matthias Jestaedt, Das mag in der Theorie richtig sein . . . Vom Nutzen der Rechtstheorie für die Rechtspra-
xis (Tübingen: Mohr Siebeck, 2006), 59 n.170.
6. On this, see Ino Augsberg, Die Lesbarkeit des Rechts. Texttheoretische Lektionen für eine postmoderne
juristische Methodologie (Weilerswist: Velbrück Wissenschaft, 2009).
7. See Hoffmann-Riem, supra note 2 at 28, with reference to Hans-Martin Pawlowski, Einführung
in die juristische Methodenlehre, 2d ed. (Heidelberg: C. F. Müller 2000), 53; Hans-Joachim Koch, “Die
388
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Begründung von Grundrechtsinterpretationen,” Europäische Grundrechte-Zeitschrift (1986), 345; Chri-

stian Seiler, Auslegung als Normkonkretisierung (Heidelberg: C. F. Müller, 2000), 10.
8. Wolfgang Hoffmann-Riem, “Gesetz und Gesetzesvorbehalt im Umbruch: Zur Qualitäts-Gewährlei-
stung durch Normen,” 130 Archiv des öffentlichen Rechts 5, 12 (2005).
9. Jacques Rancière, Disagreement: Politics and Philosophy (Minneapolis, London: University of Min-
nesota Press, 1999), x.
10. Werner Hamacher, “LECTIO: de Man’s Imperative,” in Lindsay Waters and Wlad Godzich, eds.,
Reading de Man Reading (Minneapolis: University of Minnesota Press, 1989), 171, 189.
11. Geoffrey Hartman, “Looking Back on Paul de Man,” in Waters & Godzich, supra note 10 at 3, 20.
12. Paul de Man, “Reading (Proust),” in Allegories of Reading: Figural Language in Rousseau, Nietzsche,
Rilke, and Proust (New Haven, London: Yale University Press, 1979), 57, 71.
13. Hans-Jost Frey, “Undecidability,” 69 Yale French Studies 124, 132 (1985).
14. See J. Hillis Miller, The Ethics of Reading: Kant, de Man, Eliot, Trollope, James, and Benjamin (New
York: Columbia University Press, 1987), 35.
15. Paul de Man, “Promises (Social Contract),” in Allegories of Reading, supra note 12 at 246, 277 (emphasis
in original).
16. Werner Hamacher, “Unlesbarkeit,” in Paul de Man, Allegorien des Lesens (Frankfurt am Main: Suhr-
kamp, 1988), 7, 21; for the quotation from Martin Heidegger, see Unterwegs zur Sprache, 4th ed. (Pfull-
ingen: Neske, 1971), 14.
17. De Man, supra note 15 at 277.
18. Hamacher, supra note 16 at 17.
19. Geoffrey H. Hartman, Saving the Text: Literature/Derrida/Philosophy (Baltimore, London: John Hop-
kins University Press, 1981), with reference of course to the platonic sozein ta phainomena (id., at xv).
20. Barbara Johnson, “The Critical Difference: BartheS/BalZac,” in The Critical Difference: Essays in the
Contemporary Rhetoric of Reading (Baltimore, London: John Hopkins University Press, 1980), 3, 5.
21. Jacques Derrida, Memoires for Paul de Man, rev. ed. (New York: Columbia University Press, 1989),
142.
23. Id.
24. See Cornelia Vismann, Akten: Medientechnik und Recht (Frankfurt am Main: Fischer, 2000), 33, with
regard to Derrida and Pierre Legendre.
26. Paul de Man, “Tropes (Rilke),” in Allegories of Reading, supra note 12 at 20, 83.
27. Niklas Luhmann, Rechtssoziologie, 2nd ed. (Opladen: Westdeutscher Verlag, 1983), 40; Luhmann, Das
Recht der Gesellschaft (Frankfurt am Main: Suhrkamp, 1993), 131.
28. Friedrich Müller, Ralph Christensen, and Michael Sokolowski, Rechtstext und Textarbeit (Berlin: Dunc-
ker & Humblot, 1997), 83, 86.
29. Id. at 115.
30. John L. Austin, How to Do Things with Words (Oxford: Oxford University Press, 1962), 5.
31. See Rainer Maria Kiesow, Das Alphabet des Rechts (Frankfurt am Main: Fischer, 2004), 62.
32. Austin, supra note 30, at 8.
33. Id. at 147.
34. Jacques Derrida, “Signature Event Context,” in Limited Inc. (Evanston, IL: Nothwestern University
Press, 1988), 1, 3; Jonathan Culler, On Deconstruction: Theory and Criticism after Structuralism (London:
Routledge 1983), 124.
35. Culler, supra note 34 at 123 ff.
36. Judith Butler, Excitable Speech: A Politics of the Performative (New York and London: Routledge, 1997), 3.
37. Jacques Derrida, “Living On/Border Lines,” in Harold Bloom, Paul de Man, Jacques Derrida, and
Geoffrey Hartman, Deconstruction and Criticism (New York: Continuum, 1979), 75, 81.
389
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38. Urs Stäheli, Sinnzusammenbrüche. Eine dekonstruktive Lektüre von Niklas Luhmanns Systemtheorie (Wei-
lerswist: Velbrück Wissenschaft 2000), 145, 98. Cf. Derrida, supra note 34.
39. Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Authority,’” in Gil Anidjar, ed., Acts of
Religion (New York, London: Routledge, 2001), 230, 272.
40. De Man, supra note 15 at 270; Derrida, supra note 21 at 133.
41. Jacques Derrida, “Declarations of Independence,” in Elizabeth Rottenberg, ed., Negotiations: Interven-
tions and Interviews 1971–2001 (Stanford, CA: Stanford University Press, 2002), 46, 48.
42. Austin, supra note 30 at 54.
43. Paul de Man, “Rhetoric of Persuasion (Nietzsche),” in Allegories of Reading, supra note 12 at 119,
130.
44. Bettine Menke, Prosopopoiia: Stimme und Text bei Brentano, Hoffmann, Kleist und Kafka (München:
Fink 2000), 53.
45. Hamacher, supra note 10 at 192.
47. Joachim Hruschka, Das Verstehen von Rechtstexten: Zur hermeneutischen Transpositivität des positiven
Rechts (München: Beck, 1972), 1.
48. Paul de Man, Foreword to Carol Jacobs, “The Dissimulating Harmony (1978),” in Critical Writings,
1953–1978 (Minneapolis: University of Minnesota Press, 1989), 218, 220.
49. Roland Barthes, “The Death of the Author,” in Richard Kearney and David M. Rasmussen, eds.,
Continental Aesthetics: Romanticism to Postmodernism—An Anthology (Malden, Oxford: Blackwell,
2001), 371.
50. In this direction, see Dietrich Busse, “Was ist die Bedeutung eines Gesetzestextes?,” in Friedrich Mül-
ler, ed., Untersuchungen zur Rechtslinguistik: Interdisziplinäre Studien zu praktischer Semantik und Struk-
turierender Rechtslehre in Grundfragen der juristischen Methodik (Berlin: Duncker & Humblot, 1989),
93, 122.
51. Barthes, supra note 49 at 373.
52. Marc Amstutz and Vaios Karavas, “Rechtsmutation: Zu Genese und Evolution des Rechts im transna-
tionalen Raum,” 9 Rechtsgeschichte 14, 20 (2006).
53. Roland Barthes, The Pleasure of the Text (New York: Hill and Wang, 1975), 64.
54. Hillis Miller, supra note 14 at 43.
55. Clemens Pornschlegel, “Der Ort der Kritik: Zur Diskussion der Menschenrechte bei Gilles Deleuze
und Félix Guattari,” in Friedrich Balke and Joseph Vogl, eds., Gilles Deleuze—Fluchtlinien der Philoso-
phie (München: Fink, 1996), 179, 190.
56. Jürgen Habermas, Theorie des kommunikativen Handelns, Bd. 2, Zur Kritik der funktionalistischen Ver-
nunft (Frankfurt am Main: Suhrkamp, 1981), 140.
57. See Jacques Derrida, Rogues: Two Essays on Reason (Stanford, CA: Stanford University Press, 2005).
58. Gilles Deleuze and Félix Guattari, What is Philosophy? (London, New York: Verso, 1994), 7.
59. Georg Wilhelm Friedrich Hegel, Theorie Werkausgabe, vol. 2, Jenaer Schriften (1801–1807) (Frankfurt
am Main: Suhrkamp, 1970), 432.
60. Norbert Bolz, Am Ende der Gutenberg-Galaxis: Die neuen Kommunikationsverhältnisse, 2nd ed. (Mün-
chen: Fink, 1995), 29.
61. Geoffrey Bennington, “Ex-Communication,” in 5 Studies in Social and Political Thought, University
of Sussex (October 2001), 51.
62. Raphael Gross, Carl Schmitt und die Juden. Eine deutsche Rechtslehre (Frankfurt am Main: Suhrkamp,
2000), 238.
63. Hans Kelsen, Vom Wesen und Wert der Demokratie, 2nd ed. (Tübingen: Mohr Siebeck, 1929), 101.
64. Roland Barthes, S/Z (New York: Hill and Wang, 1974), 5.
65. Michel Foucault, The History of Sexuality, vol. 1, An Introduction (New York: Pantheon, 1978), 88.
66. Marcel Gauchet, La religion dans la démocratie (Paris: Gallimard, 1998), 13.
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67. Martin Heidegger, “Die onto-theo-logische Verfassung der Metaphysik,” in Gesamtausgabe, vol.
11, Identität und Differenz, Friedrich-Wilhelm v. Herrmann, ed. (Frankfurt am Main: Klostermann,
2006), 51.
69. Aleida Assmann, Erinnerungsräume: Formen und Wandlungen des kulturellen Gedächtnisses (München:
Beck, 1999), 203.
70. Hans Ulrich Gumbrecht, Diesseits der Hermeneutik: Die Produktion von Präsenz (Frankfurt am Main:
Suhrkamp, 2004), 28.
71. Christensen & Lerch, supra note 4 at 56.
72. Stäheli, supra note 38 at 173.

73. Fabian Steinhauer, “Die Rückkehr des Bilderstreits in das Recht,” in Lerch, supra note 4 at 439, 460.
74. Sybille Krämer, “Sprache—Stimme—Schrift: Sieben Gedanken über Performativität als Medialität,”
in Uwe Wirth, ed., Performanz: Zwischen Sprachphilosophie und Kulturwissenschaft (Frankfurt am Main:
Suhrkamp, 2002), 323, 332.
75. See Gilles Deleuze, Difference and Repetition (New York: Columbia University Press, 1995); José Faur,
Golden Doves with Silver Dots: Semiotics and Textuality in Rabbinic Tradition (Bloomington: Indiana
University Press, 1986), 51.
76. Stäheli, supra note 38 at 170.
77. Luhmann, Das Recht der Gesellschaft, supra note 27 at 255.
78. See Sarah Kofman, Le mèpris des Juifs. Nietzsche, les Juifs, l’antisemitisme (Paris: Galilée, 1994).
79. Gross, supra note 62 at 7. For Schmitt’s followers, see Reinhard Mehring, “Carl Schmitt und die Verfas-
sungslehre unserer Tage,” 120 Archiv des öffentlichen Rechts 177 (1995).
80. Hannah Arendt, Elemente und Ursprünge totaler Herrschaft (München: Piper 1986), 544 n.53.
81. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947–1951, Eberhard Freiherr von Medem, ed.
(Berlin: Duncker & Humblot, 1991), 209.
82. Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, 3d ed. (Berlin: Duncker
& Humblot, 1988), 36.
83. See Christian Meier, “Zu Carl Schmitts Begriffsbildung—Das Politische und der Nomos,” in Helmut
Quaritsch, ed., Complexio Oppositorum: Über Carl Schmitt (Berlin: Duncker & Humblot, 1988), 537, 553.
84. Schmitt, supra note 82 at 36.
85. Id., at 36, 47. This definition of nomos, published after World War II but presumably written earlier,
has a predecessor: “Following the will of the Führer is, as Heraklit told us, a nomos, too. . . . When we
talk of leadership and the concept of the leader we may not forget that true leaders belong to this fight
and that our fight would be hopeless if we had to miss them. . . . We have them, and therefore I finish
my lecture by telling two names: Adolf Hitler, Führer of the German people, whose will now forms
the nomos of the German people, and Hans Frank, Führer of our German legal front, spearhead for
our good German law, role model of a national-socialist German jurist. Heil!” (Carl Schmitt, “Der
Neubau des Staats- und Verwaltungsrecht,” in Deutscher Juristentag 1933, 4. Reichstagung des Bundes
Nationalsozialistischer Deutscher Juristen e.V., Ansprachen und Fachvorträge, Rudolf Schraut, ed. [Berlin
1934], 242, 251). Cf. Gross, supra note 62, at 70.
87. See Gross, supra note 62 at 225.
88. Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens, 2nd ed. (Berlin: Duncker & Hum-
blot, 1993), 9.
89. See Werner Hill, Gleichheit und Artgleichheit (Berlin: Duncker & Humblot, 1966), 182.
90. Carl Schmitt, Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit, 2nd ed. (Hamburg:
Hanseatische Verlagsanstalt, 1933), 46. For Schmitt’s concept of “Artgleichheit,” see Peter Schneider,
Ausnahmezustand und Norm: Eine Studie zur Rechtslehre von Carl Schmitt (Stuttgart: Deutsche Verlags-
Anstalt, 1957), 211.
391
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91. Friedrich Balke, Der Staat nach seinem Ende: Die Versuchung Carl Schmitts (München: Fink, 1996),
7, 15.
92. On this, see Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Politi-
cal Theology and Political Philosophy (Chicago: University of Chicago Press, 1998).
93. See Jacques Derrida, The Politics of Friendship (London, New York: Verso, 2005), 107.
94. Carl Schmitt, Politische Romantik, 2nd ed. (München, Leipzig: Duncker & Humblot, 1925), 22; and
on this, Karl Löwith, “Der okkasionelle Dezisionismus von C. Schmitt,” in Sämtliche Schriften, vol.
8, Heidegger—Denker in dürftiger Zeit. Zur Stellung der Philosophie im 20. Jahrhundert (Stuttgart:
Metzler, 1984), 32.

96. Id., at 25.
97. Id., at 22.
98. Balke, supra note 91 at 27.
100. Id., at 26.
101. See Schmitt, supra note 81 at 160, with reference to Ernst Cassirer’s essay “Substanzbegriff und Funk-
tionsbegriff ” (Berlin 1910); sceptically to the coherence of Cassirer’s distinction and the concept of
occasio, see Schmitt, supra note 94 at 193 n.1; on this see Balke, supra note 91 at 126.
102. Niklas Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie, 2nd ed. (Berlin:
Duncker & Humblot, 1975), 8.
103. See Schmitt, supra note 94 at 222.
104. Id., at 146.
105. Id., at 123.
106. Balke, supra note 91 at 126.
108. Derrida, supra note 37 at 84.
109. Barbara Johnson, “Opening Remarks,” in The Critical Difference, supra note 20 at ix, xii.
110. For such a claim, see Hoffmann-Riem, supra note 2 at 67.
111. Cf. Paul Feyerabend, Against Method: Outline of an Anarchistic Theory of Knowledge, 3rd ed. (London:
Norton, 1993), 11. For a characteristic misunderstanding, see Gunther Teubner, in “The Blind Spot:
The Hybridization of Contracting, 8 Theoretical Inquiries in Law, 51, 61 (2006): “postmodern arbi-
trariness . . . —anything goes whenever a theory seems to have reached its limits.”
112. See Jacques Derrida, Of Grammatology (Baltimore: John Hopkins University Press, 1977).
113. Jacques Derrida, “Semiology und Grammatology: Interview with Julia Kristeva,” in Positions (Chi-
cago: University of Chicago Press, 1981), 15, 20.
114. Claude Lefort, “Sade: the Boudoir and the City,” in Writing: The Political Test (Durham, London:
Duke University Press, 2000), 67, 71.
116. Cf. with reference to Schleiermacher Manfred Frank, Das individuelle Allgemeine: Textstrukturierung
und Textinterpretation nach Schleiermacher (Frankfurt am Main: Suhrkamp, 1985), 358. The formula
has a judicial pendant in the statement that a statute could be more intelligent than its authors (BVer-
fGE 36, 342 [362]); on this, see Gustav Radbruch, Rechtsphilosophie, 8th ed. (Stuttgart: Koehler, 1973),
207; Einführung in die Rechtswissenschaft, 12th ed. (Stuttgart: Koehler, 1969), 254.
117. Müller, Christensen, and Sokolowski, supra note 28 at 132.
119. See Wolfgang Hoffman-Riem, Kriminalpolitik ist Gesellschaftspolitik (Frankfurt am Main: Suhrkamp,
2000), 14.
120. See Luhmann, supra note 102.
392
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121. Andreas Fischer-Lescano and Ralph Christensen, “Auctoritatis interpositio: Die Dekonstruktion des
Dezisionismus durch die Systemtheorie,” 44 Der Staat 213, 230 (2005).
122. Niklas Luhmann, Soziale Systeme: Grundriß einer allgemeinen Theorie, 4th ed. (Frankfurt am Main:
Suhrkamp, 1994), 504, 509; Luhmann, Das Recht der Gesellschaft, supra note 27 at 565.
123. See Gunther Teubner, “Ein Fall von struktureller Korruption? Die Familienbürgschaft in der Kolli-
sion unverträglicher Handlungslogiken,” 83 Kritische Vierteljahresschrift für Gesetzgebung und Rechts-
wissenschaft 388 (2000).
124. See Gunther Teubner, “Societal Constitutionalism: Alternatives to State-centred Constitutional
Theory?” (“Storrs Lectures 2003/04” Yale Law School), in Christian Joerges, Inger-Johanne Sand,
and Gunther Teubner, eds., Constitutionalism and Transnational Governance (Oxford: Hart, 2004),
3; Karl-Heinz Ladeur, Der Staat gegen die Gesellschaft: Zur Verteidigung der Rationalität der “Priva-
trechtsgesellschaft” (Tübingen: Mohr Siebeck, 2006), 194, 348.
125. See Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, 2nd ed. (Tübin-
gen: Mohr Siebeck, 1964), 23; Martin Kriele, Theorie der Rechtsgewinnung, entwickelt am Problem der
Verfassungsinterpretation (Berlin: Duncker & Humblot, 1967), 50.
126. See Bernd Rüthers, “Demokratischer Rechtsstaat oder oligarchischer Richterstaat?,” JuristenZei-
tung (2002), 365; Christoph Möllers, “Mehr oder weniger virtuos. Der Mann am Klavier: Was spielt
BGH-Präsident Hirsch?,” Frankfurter Allgemeine Zeitung, Oct. 26, 2006, 37; Günther Hirsch, “Zwis-
chenruf—Der Richter wird’s schon richten,” Zeitschrift für Rechtspolitik (2006), 161; “Auf dem Weg
zum Richterstaat? Vom Verhältnis des Richters zum Gesetzgeber in unserer Zeit,” JuristenZeitung
(2007), 853.
127. See Karl-Heinz Ladeur, Kritik der Abwägung in der Grundrechtsdogmatik: Plädoyer für eine Erneue-
rung der liberalen Grundrechtstheorie (Tübingen: Mohr Siebeck, 2004), 13; Ladeur and Ino Augsberg,
“Auslegungsparadoxien, Zu Theorie und Praxis juristischer Interpretation,” 36 Rechtstheorie 143, 158
(2005).
128. On the difference between justice and law, see Derrida, supra note 39.
129. See Ladeur, supra note 127 at 58.
130. Derrida, supra note 37 at 116. On this, see Eckhard Schumacher, Die Ironie der Unverständlichkeit:
Johann Georg Hamann, Friedrich Schlegel, Jacques Derrida, Paul de Man (Frankfurt am Main:
Suhrkamp, 2000), 333.
393
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On: 04 December 2014, At: 16:56

Law & Literature

Reading Law: On Law as a Textual

To link to this article: http://dx.doi.org/10.1525/lal.2010.22.3.369

PLEASE SCROLL DOWN FOR ARTICLE

Keywords: textuality, hermeneutics, literary theory, deconstruction, Paul de Man

Do we really know what we do when we read legal texts? Or is this focus on

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interpreters that could be healed in a messianic moment; rather, it is a struc-

yond natural experience or its mimesis to a specifically linguistic dilemma”11:

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The de-construction of a text does not proceed by random doubt or arbitrary

[J]ust as no text is conceivable without grammar, no grammar is conceivable

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This explains the necessity of a “juxtaposition of two readings in which the

What we have to examine, then, is how the traditional self-description of the

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act par excellence: The announcement of the judgement in a legal process is

With respect to time we find an analogous problem: Performative utterances

LAL2203_01.indd 374 10/21/10 11:13:28 AM

if the temporality of linguistic convention, considered as a ritual, exceeds the

In a paradoxical way, the condition of possibility of successful performative

LAL2203_01.indd 375 10/21/10 11:13:28 AM

interwoven types of language. Their undecidable community constitutes a

ground other than that positing it disputes.”45 It is this combination of two

This janus-facedness of the text provokes the necessity of interpretation,

This reference to the performative component of the judicial process indi-

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This transformed conception of reading, brought about by abandoning the

By “the ethics of reading” . . . , I mean that aspect of the act of reading in

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From a legal perspective, this normative aspect of reading can be paraphrased

Crucial is the gesture of restoring supposedly irreducible “truths,” antecedent

With remarkable candor, Habermas in particular claims a theological heritage

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a metaphysical, authoritarian ideal. By replacing the earlier philosophical uni-

“truth” without suffering irreparable harm.62 “Whoever believes that abso-

The interpretation demanded by a specific text, in its plurality, is in no way

Contrary to this priority of plurality, Habermas’ conception unintentionally

[L]iterature (it would be better from now on to say writing), by refusing to

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According to literary critic Aleida Assmann, “writing’s claim to and promise

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signified. Mediality cannot easily be interpreted as a medially communicated

Media participate in the production of meaning in a way that speakers neither

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Schmitt. A note in his posthumously published Glossarium, written in the year

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bility at the expense of form.”98 Romanticism presents “possibility as the higher

LAL2203_01.indd 384 10/21/10 11:13:31 AM

of textuality or positivism no longer directly bound to law or to the hierarchi-

A final, decisive question remains to be answered: What concrete consequences

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text and instead depends on the “operations performed by the reader,” it

As an empirical process, successful reading must accept the plurality of data

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1. Wolfgang Hoffmann-Riem, “Innovationsoffenheit und Innovationsverantwortung durch Recht.

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Begründung von Grundrechtsinterpretationen,” Europäische Grundrechte-Zeitschrift (1986), 345; Chri-