JAN M. BROEKMAN


REITERATING THE LITERAL

ABSTRACT. Taking the letter of the law literally would equal the death of our hope and expectation that law and its practices of justice will create improved social realities. This insight is, however, seldom formulated in legal discourse. A more profound analysis shows how “the literal”, taken as a legal expression, covers the management of law’s semantics rather than delivering the precise description of a state of affairs in law. This pertains in particular to the “well informed citizen” (A. Schutz). Can legal meanings that should enter and perhaps change the citizen’s life sphere for the better, transcend the boundaries of legal discourse by means of appealing to a literal meaning?

Discussions are reductions. They have to be. One must select a theme, narrow a context, and color the nuances in black and white. Standpoints need an apology – “I try to make this point, but I know better”. Better? Perhaps differently. That is most tangible in legal philosophy, as Bernard Jackson’s essay shows. A comparison between “the modern Western model of law” and the “model of law discernible in the Bible” requires reductions from author as well as discussant. Can one bring the Civil Law and Common Law traditions together and treat them as “a liberal legal system” opposed to a “narrative” of the Biblical tradition? The notion of “literal meaning” has a key role in that comparison. It connects us to central themes of Western law: rule and rule application, the legislator’s so-called intention, linguistics and the rule character of language, justice and equity, the features of truth in law, the culture of legal discourse. How can one discuss such a wealth of themes, and reach into the Biblical tradition? Perhaps only if one is aware of how these representations embrace reduction.

T HE L ITERAL “The literal” is a common notion in Western law. One of its vices is its lack of clarity. This is particularly true for the literal meaning of legal cases, which appears beyond any doubt as soon as they have encountered
Professor of Law, University of Illinois College of Law, Champaign-Urbana, USA;

Professor Emeritus Universities of Leuven (Belgium) and Amsterdam (Netherlands). International Journal for the Semiotics of Law Revue Internationale de S´emiotique Juridique 14: 121–128, 2001. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.

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their literary form. Students are confronted with cases to study the structure, the textual character, the vocabulary, the content and the function of law. Consultations of casebooks do not imply a reflection on the roles of publishers and editors who bring such cases to the market. Don’t mention how the text as text is a character portrait of cases in law. Don’t mention either that cases belong to a specific social institution. Do not highlight the multiplicity of meanings in a case text. Who cares, as long as literal meaning exists? Sharing this presupposition is not difficult. The notion holds its grip on the law school, on the profession, on politics, on law’s function in society at large. All institutions repeat that truth as formulated in the premises of our education. To consider whether a literal meaning exists seems to position oneself dangerously near to a steep philosophical pitfall. Yet, the world would be a very dull place if one takes “literal meaning” too literally. There would be no joke, no fiction, no ambiguity. The German poet R.M. Rilke in his 8th Duino Elegy evokes the looks on the faces of animals in that manner. They show no laughter, no waste of time, no unused energy.1 No security either, not to mention certainty. Things are as they are, or seem to be. Do they really? To animals? To us? What’s the difference? Jews, Christians, Muslims are living in an instructed culture. Its foundation is in the eternal presence of the Book.2 Oral traditions are the realm of their interpretation. The latter has a task to fulfil that surprises us, because it leads not towards but rather away from the literal. An interpretation cannot follow the letter or syllable of the legal texts. Its essential task is rather the inverse, namely to show how laws are there to achieve a view on life beyond the bitter experiences of the day. To interpret law is to expect a better life and another world, to design guidelines for the different and the better. Such hope is law’s hidden force. It is its key for interpretation. Taking the letter of the law literally equals the death of hope. A word can commit suicide by shrinking the meanings of its innermost notion. A word leaves swathes and spices behind. Another reality is born when a word realizes itself. Its discourse spreads its wings, unfolds its meaning. In doing so, it goes out into the light, to act, to be. The instruction transforms into creation, culture is saved from death – from the literal. Derrida seems driven by such dynamics, by the fascination of the word unbound 1 See most recently: William H. Gass, Reading Rilke. Reflections on the Problems of Translation (New York: A. Knopf, 1999), 170ff., 121ff. 2 Harold Bloom, A Map of Misreading (Oxford: Oxford University Press, 1975), in particular 41ff., and Jan M. Broekman, “Die Kultur des Buches”, in Facetten der Wahrheit, Festschrift für Meinolf Wewel (Freiburg i. Bresgau: Alber Verlag, 1995), 179ff.

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and the dissolution of the logocentric patterns of life and thought. Harold Bloom quotes Paul Valéry: “We say an author is original when we cannot trace the hidden transformations that others underwent in his mind”, in order to underline Nietzsche’s dictum: “ ‘Interpretation’, the introduction of meaning . . . there are no facts, everything is in flux, incomprehensible, elusive; what is relatively most enduring is our opinions . . .”.3 However, there is an overarching interest in keeping the dominance of literal meaning in mind. Legal discourse is not exclusively a matter of interpreting texts or linguistic elements. Its performance also depends on attitudes and skills. That insight reaches far beyond the Enlightenment idea that law’s only source is in legislation. This is exemplary in the emerging Law of the European Union.4 Unification of Union law is an instrument in the unification of the Union. The achievement of that goal is not restricted to codification5 or legislation; in other words, it is not exclusively a matter of texts and language rules. Hart’s remarks, so extensively quoted in Jackson’s essay, do not indicate any awareness of this insight, in contrast to a recent formulation of Kötz, who states: The law of Europe cannot be unified by sporadic texts. What we need is to ‘Europeanize’ the way lawyers think, write, and learn. Legal history and comparative law teach us as much, and people are now readier to accept it.6

Law, or legal codes, form a special category of what Paul de Man once described as “strong reading”, an expression that links reading and interpretation to texts expressing exclusiveness and completeness. Article 4 of the Napoleonic Code shows the illusion of exclusiveness, completeness and semantic transparence as a sole source for human interrelations. Against the background of Bloom’s remark “. . . only minor or weak poets, who threaten nobody, can be read accurately . . .” one considers the virtues of the literal in the Code. The latter is the image of a transparent society because of at least four textual requirements, which go to the notion of the literal. They are: (1) Only one socially relevant meaning or notion shall be represented by one concept in the text; 3 Harold Bloom, Kabbalah and Criticism (New York: Continuum, 1975), 93ff., 115. 4 Jan M. Broekman, A Philosophy of European Union Law (Paris/Leuven: Peeters,

1999), 10–35, 401ff. and his forthcoming Legal Education, Institutional Skills and European Union Opinions. 5 W. van Gerven, “The ECJ Case-Law as a Means of Unification of Private Law?”, in A. Hartkamp et al. (eds.), Towards a European Civil Code (Dordrecht: Ars Aequi Libri, Kluwer Law International, 1998), 91–105 (ch. 6). 6 K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd revised edn. (Oxford: Clarendon Press, 1998), 28.

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(2) Each combination of such concepts shall only lead to simple meanings; (3) Grammatical constructs such as sentences or texts shall not create more than one meaning; (4) All interpretation and other textual acts relate to and represent human rationality.7 A conclusion may be ventured. The literal is an omnipresent idea in Western culture, and the notion seems basic in more than one system of legal philosophy. Positivism in the law is a major example here, and that should be debated in philosophy and semiotics of law. Two conclusions may be formulated. (1) The first underlines how a practice of the literal is a contradiction in itself. In other words, the literal dissolves once it becomes practised as interpretation. It is therefore doubtful whether ‘literal meaning’ can be presented as a valid contrast to ‘narrative meaning’. (2) The second shows how it is not political liberalism, but rather a phantasmagoria on mastering meanings through expressiveness which functions in modern Western law. Both conclusions do not say, “there is” no literal meaning. They rather underline how the expression “literal meaning” indicates a specific management of semantics and not an ontologically firm state of affairs.

T HE I NFORMED C ITIZEN If “literal meaning” should be understood as a conceptual rather than an interpretative reality, what then does this mean to the citizen and his informed choices in private and public life? In other words: what is the place and function of the citizen in considerations about law as a carrier of literal or narrative meanings? One cannot contemplate such semantic issues without taking the citizen into consideration. If that were not the case, what use for instance would be Jackson’s suggestion that “biblical evidence suggests that laws (in the modern sense) were a reaction against discretionary justice”? Jackson aims at our contemporary situation where he indicates how codes with their literal meaning can represent “democratic opposition to the exercise of royal and aristocratic discretion”. Is it not evident that our functioning democracy seems at stake in discussions pertaining to the literal? Or is that a far-fetched combination of incompatible issues? 7 Jan M. Broekman, “Juristischer Diskurs und Rechtstheorie”, in Rechtstheorie XI/1

(1980), 26, and “Holism, Law, and the Principle of Expressibility”, in Rechtstheorie XXI/4 (1990), 415ff.

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Alfred Schutz’s essay The Well-Informed Citizen, presented to the New School for Social Research in 1946,8 pertains to the liberal idea of the informed choice of citizens. Liberal theory suggests that citizen choices be based on information, and information on a process of communicating texts of law, their literal meaning included. Are citizens able to make the appropriate distinction between literal and interpreted meaning as a basis for their choices? Can citizens discern language-based rules from image-based discretion in which the narrative dimension prevails, and show preferences for the one or the other? What is in both options the basis for responsible action: the mimesis in the literal, or in the narration? Are choices decided in the realm of the literal essentially the same as those decided in narratives? Such questions go to language as well as to citizenship, in its very intertwining a theme of legal and political philosophy since Hobbes. Citizens internalize reality in line with various types of rationality. Individuals of any in-group possess a relatively natural concept of the world, which its members take for granted. That naturalness will be lost as soon as one transcends the borderlines of the in-group experience. A central issue is therefore an individual’s readiness to take things for granted. Each citizen is at home in a realm of primary relevance. Information entering that life sphere should accord to that type of relevance. A more general question comes to the fore. In what semantic framework is legal information able to enter a citizen’s life sphere? Schutz proposes a distinction between socially derived and socially approved knowledge. The eyewitness, the insider, the analyst and the commentator are four positions that illustrate socially derived knowledge. They are ideal types, and appear in mixed forms. All knowledge is socially derived but not all knowledge is socially approved. Citizenship exists because of the latter. However, most citizens remain unaware about the semantic transformations that characterize their knowledge. Social approval makes reality appear as a natural world and the sediment of immediate experience. Legal knowledge is different. It is acquired by a legal subject who lives in the cloak of citizenship. The concept of a legal subject is a social construct in its own right. Received legal knowledge is marked by that construct. Niklas Luhmann opined that there is no law outside the law. What ‘outside’ is remains defined by the legal discourse. Law pertains to socially approved knowledge, which is the home of public opinion, authority and expertise. Does legal knowledge (the texts of law) semantically remain the same in derived as in approved knowledge? The 8 Alfred Schutz, “The Well-Informed Citizen”, in Social Research XIII/4 (1946),

463–478, and in Collected Papers, Vol II (Den Haag: M. Nijhoff, 1964: Series Phaenomenologica, Vol. 15), 120–135.

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answer must be in the negative. Social approval frames reality and experience according to its features of institutional nature. In other words: approved knowledge is institutional knowledge. “Communicating law” is a social ideal to the well-informed citizen and an important issue in his life.9 A “well-informed citizen” is supposed to be anchored in a “wellfunctioning democracy”, that is in the “rule of law”. All informed choices of citizens must remain within the boundaries of that rule of law. The Jurisprudence of the ECHR10 shows the limits of legal information to the citizen. Does information empower the citizens, or does it serve the continuation of the rule of law by imposing its information upon them? The notion of the literal is used in that imposition. Information is made understandable through the literal without that notion itself becoming a form of legal or political practice. Jackson combines the rule of law with the literal when he evaluates the importance of “written law”. He suggests that “there are indications that the earliest use of written law in the Bible was precisely to limit the (hereditary) powers of the monarchy”, and draws a parallel to the Greek and Roman views where codes oppose discretion. The use of written law goes against the perversion of discretionary justice. Is that a recall to the literal, which guarantees security through the democracy of interpretation (Jackson calls it “narrative”), or does it turn to a positivist practice in rule following (which he calls “semantic”)? Does the literal ever provide the well-informed citizen with any means for communication beyond strict rule following? The expressions “narrative” and “semantic” come to the fore again. The meaning of that opposition seems politically relevant. One has to repeat an earlier conclusion: the expression “literal meaning” covers a specific management of semantics, not a state of affairs. A further conclusion is that the concept of a “well-informed citizen” remains a central issue in understanding the literal.

C ASES IN L AW Legal cases disclose how the law is a management of meaning. The notion of the literal plays its own role. Jackson confirms it when he distinguishes the literal – which he calls “semantic” – from the narrative meaning as identified with oral tradition. However, the problem is deeper and goes to 9 For the philosophical background of this claim, see Jan M. Broekman, “Communi-

cating Law”, in David Nelken (ed.), Law as Communication (Aldershot etc.: Dartmouth, 1996), 45–63. 10 ECHR = European Court of Human Rights.

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the fundamental semantic reductions at stake. Three issues are important: the comparison of legal systems, the implied definitions and concepts, and the ontological position in the discussion. If one compares two different legal systems and their culture, one has to worry about their compatibility. Absence of compatible factors makes the comparison ineffective. One who offers a comparison presupposes compatibility. In the case of the “modern Western liberal legal system” and the “Biblical tradition”, one is confronted with different cultural settings, a different image of man, even a different metaphysical framework. That is not the issue of Jackson’s proposals. His comparison goes to variants of culture, which parallel different systems of rule-application: one on the basis of rules of language, the other on rules of images that result from narration. It is clear how this comprises semantic problems; legal systems are always different because of their semantics! It is in that context difficult to understand why Jackson does not use the commonly accepted understanding of “semantic” to describe the meaning of words and sentences, and “semantics” as the branch of linguistics that goes to meaning in- and of language. How are we to understand the confrontation between “semantic” (understood as the literal) and “narrative” in his terms, which he then transforms into a contrast between positivism and narrativity, between normative and descriptive theory? The ontological position goes to the essence of legal cases. Reality is in cases. That phrase is leading in the liberal idea on how citizens receive a foundation for their choices, and is misleading in the narrative approach. However, legal cases are at first glance narratives. But cases are constructs of law and legal thought formation. Hart’s remark on core and penumbra meaning pertains to legal meanings, on meanings in a legal context, the case – and not on meanings in everyday life! Cases are parts of normative theories, not descriptive accounts related to the narrative and oral tradition. Constructed tales fulfil a task of directing the course of law making and interpretation, the maintenance of the profession and other performances of law in social life. Cases suggest that reality is the way they ontologically present reality. In doing so, cases conceal how they construct a reality in accordance with the requirements of the social institution. Cases look like other narratives, their stories embrace the idea of a constitutive subject, a chain of causality and a purpose one finds in each good piece of fiction. And both law and fiction pretend to shape a better world. But the novelist does not tell the reader that the world is precisely the way he presents his story. On the contrary, he denies the literal, plays with the literal and creates a zone of indeterminacy. The jurist suggests that the case is the reality and conceals how cases serve the continuation of legal discourse.

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Facts are facts in cases – but in life? The compatibility issue resurfaces. A comparison of Mosaic Laws and Western Common Law presupposes compatible subjects. The contrast appears debatable. The subject of Western liberal law is a legal subject, a bearer of rights and obligations, and a binary essence that often appears in the cloak of the responsible and informed citizen. The subject of Mosaic Laws or the parables of Christ is, however, an everyday-life subject. All law is narrative – a narrative that cannot exist without the idea of the literal. Is the literal always the same, in law as in life? Robert Butler et al., v. The Alabama Judicial Inquiry Commission, 11th Circuit of the USA raises free speech and federal jurisdiction issues. The appellant seeks to remove a judge from office because of the content of his campaign advertisements, which the Judicial Commission claims is misleading even though literally true. The literal and the legal narrative decide about the truth in law’s perspective. The steps in that semantic strategy are (a) first to speak of “meaning in language”, (b) then to connect “language” and “behavior”, (c) then to transform that connection into the commonness of “linguistic rules” and “rules of behavior”, and (d) finally to observe how “legal cases contain the literal as well as the narrative”. The last step does not mention its origin any more, and so it appears as if Hart’s debate on “core meaning” and “penumbral meaning” is about meaning. Reiterating the literal serves the construction of (legal) cases. Can cases ever speak on meaning other than on their meaning, that is on legal meaning? Van ’t Sestichlaan 34 3020 Herent/Leuven Belgium E-mail: [email protected]