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Reading Law: On Law as a Textual Phenomenon

Ino Augsberg

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 language. Rather, we should attempt to conceive of the legal system itself as a specic form of textuality. I try to develop and elaborate this idea by regarding law from the various perspectives of Paul de Mans literary criticism, John Austins discussion of performative utterances, Roland Barthes deconstruction of hermeneutics, media theory, and an ex negativo approach based on Carl Schmitts 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 methodology that has to be replaced by new perspectives? In some current German debates in the eld of public law, the second question is answered in the afrmative. Legal scholarship is said to face signicant changes. To be adequately 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 orientation 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 Presss Rights and Permissions website, at DOI: 10.1525 /lal.2010.22.3.


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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 deciency is not simply an anomaly within particular contemporary debates, but rather is typical of jurisprudence in general: In spite of all the oftrepeated demands for an increase in interdisciplinary research,3 jurisprudence has shown a remarkable indifference towards the discussions of texts and textuality 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 conventional 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 explores this question in six different steps, in the process providing a general outline of what a more detailed answer might look like.6


The rst 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 dened facts of a case were confronted with equally clearly dened statutes that could simply be applied to those facts.8 What needs to be explained 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 insufciency of the

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interpreters that could be healed in a messianic moment; rather, it is a structural 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 beyond natural experience or its mimesis to a specically linguistic dilemma11: If we think of reading in the usual way, as referential understanding, then this process becomes apparent as a paradoxically possible-impossible operation. De Mans declaration that the co-presence of intra- and extra-textual movements never reaches a synthesis,12 spoken mainly in regard to metaphors, 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 systemthat is, every texthas within itself the ignorance of its own exterior as the rupture of its own coherence which it cannot 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 language is always precarious. The promisein German: Versprechenof language remains unfullled.14 Die Sprache verspricht (sich),15 de Man writes in a highly ironic, but necessary conjunction of Heideggers gnome Die Sprache spricht and Freuds vocabulary.16 To the extent that it is necessarily misleading, 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 reality. 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 operations 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 hermeneutics 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 readingas 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 signication 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 specicity of a texts critical difference from itself.20

The ironic aporia elaborated by such a form of reading does not apply only to the eld of literature in the narrow sense. It affects specically juristic operations as well. The disjunction of the semantic function and the formal structure of language, of hetero- and self-reference, which cannot be described as a simple polarity but rather constitutes the undecidability of grammatical and gurative 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 operandi, the undecidability between the demands of grammar and those of referentiality. The legal or political text makes the structure of texts in general more explicit.... It denes the general text better than any other.21 Every statute remains clamped between the twofold, conicting claims for generality 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 written unless one suspends any consideration of applicability to a particular entity including, of course, oneself, grammatical logic can function only if its referential consequences are disregarded.22

Only if its generality is assured through a certain brutality toward the referential 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 specic unit. The indifference of the text with regard to its referential meaning is what allows the legal text to proliferate.23

But at the same time, the suppressed referentiality has to be identied 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 justesse of any statement can only be tested by referential veriability.25

This explains the necessity of a juxtaposition of two readings in which the rst 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.

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 difculties in dealing with these kinds of ironic aporias. The fundamental uncertainty that threatens to enter the system so obviously contradicts the systems 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 classically 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, reafrms 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 modied 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 modied concept, we can start off with John L. Austins 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 rst glance, suggests that it is only repeating what was established before by statute, namely the state of the law, the belief that the judges activity is so limited should, at the latest as of Napoleons lamentation 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 conditions 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 adequate 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 problem of factual circumstances as well as of time. With regard to the factual 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 principle 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 nd 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 identiable (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 meaning 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 judgements is already iterability, a call for self-preserving repetition39; every legal decision, in the singularity of its performative occurrence, takes place as an inscription 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 selfinterpretation 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 between 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 ctitious, status of his construction: Admittedly, there is danger of our initial and tentative distinction between constative and performative utterances breaking down.42 This danger cannot 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 unveriable, 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 denition 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 gural system closed off by a transcendental signication that subverts the grammatical code to which the text owes its existence. The denition of the text also states the impossibility of its existence and pregures the allegorical narratives of this impossibility.... A text is dened by the necessity of considering a statement, 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 uncertainties. In this sense, we can understand law as text as a chiffre for the failure of the sharp distinction between constative and performative speech acts.

This reference to the performative component of the judicial process indicates 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 component 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 authors 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 denition of the readers role: Barthes does not conceive of this role as merely a supportive, albeit necessary, part of the process that produces a texts 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 futile. To give a text an Author is to impose a limit on that text, to furnish it with a nal signied, to close the writing.51 The assumption that in Barthes theory the text is no longer seen as a prefabricated product with a xed, indeed still hidden yet denite 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 classic hermeneutic debate about whether a more subjective or a more objective method of interpretation is desirable. He rejects the role of hermeneutics altogether. 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, meaning (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 tissuethis texturethe subject unmakes himself, like a spider dissolving in the constructive 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 normative 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, institutional, 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 sufce 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 procedures 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 destructionand that is, in the rst instance, the war against those who refuse to accept those irreducible truthsis not to come. By this means, such a theory transforms philosophy into the formal continuation of the old theology, whose (salutory) certainties it replacesthereby sublating themwith its own logical formalisms relating to the procedure of argumentation. In short: The communitys political institutionalizations, its immanent, always open constitution, which can never be completed for once and for all, is replaced by this constitutions philosophical foundation.55

With remarkable candor, Habermas in particular claims a theological heritage for his program of completing the unnished project of modernity, thereby exposing his own pretensions. The morality Habermas constructs on the basis of discourse ethics is supposed to conserve something of the penetrating strength of sacral original powers; it penetrates the in-the-meantime functionally 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 nds a new way of lling the place of the sovereign, which had become empty. By attempting to ll the vacant position with deliberative processes, it reestablishes

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a metaphysical, authoritarian ideal. By replacing the earlier philosophical universalia, contemplation and reection, with the new paradigm of communication, discourse ethics gives rise to an intersubjective idealism58: The replacement of the historical with the speculative Good Friday59 is followed by a communicative turn. Habermas theology of communication60 fails to understand that, just as communication cannot end in consensus without destroying itself,61 so the democratic process cannot be linked to the category truth without suffering irreparable harm.62 Whoever believes that absolute 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 interpretations, but includes the fundamental priority of plurality over every whether transcendentally or pragmatically constructedsovereign unity.
The interpretation demanded by a specic text, in its plurality, is in no way liberal; it is not a question of conceding some meanings; magnanimously acknowledging 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 conrms a general thesis by Michel Foucault about the current state of political thinking: We need to cut off the Kings 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 decapitated 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 x meaning is, in the end, to refuse God and his hypostasesreason, 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 assumptions. 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 repetitiona 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, writings claim to and promise of eternity both rely on two basic assumptions: rst, that the physical existence, 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 modied in the course of time, and how did this affect the process of interpretation? To raise these kinds of questions already requires 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 between 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 transformation that led from archaic laws inscribed in stone tabletswhich obviously symbolized the stability of the legal orderto modern, virtual, hypertextual forms of law-makingwhich stand for the exibility of positive, and hence changeable, lawwe can observe that the common assumption that writing has decreased in importance in the age of digitalization not only misunderstands the situation within which laws rst 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 instance, 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 second-order idealism that would like to nd meaning even in the physical basis of texts, but that in the process only reproduces the dichotomy of signier and signied. 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 manipulation of signs fall short.74

From this perspective, the interplay between signier and signied, as traditionally 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 perspective, 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 repetition that the early stone tablets dissimulated, but that becomes explicit in hypertexts. This is the logic of writing.

To illuminate further the logic of writing and the specically 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, analyzing conceptions of law that combine a preference for the spoken word with a distrust of positive law and that, since St. Pauls 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 law80: 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, Schmitts own conception of norm, the nomos, is described as a deliberately alegal, antipositivist gure, 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 nomosin a philologically dubious manner83as the original division and distribution, the Ur-Teilung und Ur-Verteilung84 of a peoples land; he describes it as a space-dividing basic operation.85 In this original meaning, nomos is the complete immediacy 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 rst place.86 This explains why Schmitt, employing a typical antisemitic stereotype, could reproach Kelsens 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 anunnamed, yet easily recognizablepeople. 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 Schmitts resistance to this type of thought, which sees itself as being obligated 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 interpretation, 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 nd it than within ourselves and our own nature? Here, too, in view of the indissolvable connection between ofcialdom and judicial independence, all questions and answers lead to the necessity of an equality of nature, without which a total leader state [Fhrerstaat] could not exist for one day.90

Why then should we, against the background of such statements, still spend our time reading Schmitt? Dont both Schmitts open and his hidden antisemitic statements provide sufcient reason to assume that a modern legal 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 scholars work corresponds to a problem that transcends the horizon of the suggested solution.91 What is interesting about Schmitts 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 rst time, reveals the true nature of the occasional. It does so by placing the individual in the role previously reserved for God, thereby subjectifying traditional occasionalism. Through this subjectication, for the rst 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 without substance, and without functional connections, without steadfast leadership, without conclusion and without denition, 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 unnishability and the consequences of this unnishability: the enablement of communication, the despecication of the communicated meaning, and a privileging of connectability 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 accepts 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 connecting point external to the systemGod, nature, tradition, and so onto a process that creates its own internal connectivity. The consentement of romantic 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 function, a concrete point around which the romantic play of fantasy oats.105 The movement of Schmitts 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 constructthat is to say, feignits own certainties. This is what Schmitt denes as the essence of legal positivism: the theoretical ratication of a social process characterized by the punctualization or occasionalization of the political foundationwhether this foundation is called the state, political unity, or the constitution.106 From our perspective, 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 nished corpus of writing, some content enclosed in a book or its margins, but a differential network, 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 hierarchical 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.


A nal, decisive question remains to be answered: What concrete consequences could this new understanding of laws textuality have for legal practice? As a rst response, one could reject the implication that such a relationship to practice is necessary and instead argue that upsetting the traditional methodology is worthwhile in and of itself: The power of ignorance, blindness, uncertainty, 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 difculties 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 xed meaning to a textbecause every signied can simultaneously function as a signier and every clear distinction between these two elements hence collapses112does 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 signier and signied. 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 limitsvery 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 veriable 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 authors 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 selfreferentially from within its own process. This is the problem with the originally 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 concrete situation. In an increasingly pluralistic, fragmented society, laws general function may no longer be to stabilize normative expectations in the sense of creating social homogeneity.119 Rather, under such conditions, dening social normalcy requires shifting from an identity- to a difference-oriented perspective. 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 sufcient room for divergent connecting operations. Laws function is then no longer primarily to guarantee unity, but rather to guarantee difference. Luhmanns 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 specically 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 conicting rationalities123 must be protected from colonization by other, more dominant subsystems.124 Therefore, the task of law is, rst and foremost, to protect self-reexively its own processes from possible extrasystemic inuences. However, the difference-oriented perspective I am proposing not only affects laws relationship to external irritations; it must also be implemented within the legal system. In particular, judicial interpretation has to reect 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 judiciary 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 dialogue 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 laws function of stabilizing long-lasting social orders. Therein lies the weakness of the appreciation of values paradigm, which, because of its merely ad hoc weighings of conicting interests, is no longer able to give society any kind of structural orientation.127 Such an approach asks too much of law even as it misunderstands laws 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 decisions, which makes the stabilization of normative expectations possible, could be saidin 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 gure of difference

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and repetition, that is, of iterability. Dening 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 laws 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 interplay. 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 unread able is not the opposite of the readable, but rather the ridge [arte] 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 ffentlichen Rechts 255, 263 (2006). (Unless otherwise noted, all translations are my own.) 2. See Andreas Vokuhle, Neue Verwaltungsrechtswissenschaft, in Wolfgang Hoffmann-Riem, Eberhard Schmidt-Amann, and Andreas Vokuhle, eds., Grundlagen des Verwaltungsrechts, vol. 1, MethodenMastbeAufgabeOrganisation (Mnchen: Beck, 2006), 1. Cf. Christoph Mllers, Methoden, in Hoffmann-Riem, Schmidt-Amann, and Vokuhle, id. at 3; Wolfgang HoffmannRiem, Methoden einer anwendungsorientierten Verwaltungsrechtswissenschaft, in Eberhard Schmidt-Amann and Wolfgang Hoffmann-Riem, eds., Methoden der Verwaltungsrechtswissenschaft (Baden-Baden: Nomos, 2004), 9. 3. See, e.g., Helmuth Schulze-Fielitz, Was macht die Qualitt ffentlich-rechtlicher Forschung aus?, 50 Jahrbuch des ffentlichen Rechts der Gegenwart. Neue Folge (2002), 1, 50. 4. See, for an exception that conrms 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 vermitteln: 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 nd 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 fr die Rechtspraxis (Tbingen: Mohr Siebeck, 2006), 59 n.170. 6. On this, see Ino Augsberg, Die Lesbarkeit des Rechts. Texttheoretische Lektionen fr eine postmoderne juristische Methodologie (Weilerswist: Velbrck Wissenschaft, 2009). 7. See Hoffmann-Riem, supra note 2 at 28, with reference to Hans-Martin Pawlowski, Einfhrung in die juristische Methodenlehre, 2d ed. (Heidelberg: C. F. Mller 2000), 53; Hans-Joachim Koch, Die


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Begrndung von Grundrechtsinterpretationen, Europische Grundrechte-Zeitschrift (1986), 345; Christian Seiler, Auslegung als Normkonkretisierung (Heidelberg: C. F. Mller, 2000), 10. 8. Wolfgang Hoffmann-Riem, Gesetz und Gesetzesvorbehalt im Umbruch: Zur Qualitts-Gewhrleistung durch Normen, 130 Archiv des ffentlichen Rechts 5, 12 (2005). 9. Jacques Rancire, Disagreement: Politics and Philosophy (Minneapolis, London: University of Minnesota Press, 1999), x. 10. Werner Hamacher, LECTIO: de Mans 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: Suhrkamp, 1988), 7, 21; for the quotation from Martin Heidegger, see Unterwegs zur Sprache, 4th ed. (Pfullingen: 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 Hopkins 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. 22. De Man, supra note 15 at 268. 23. Id. 24. See Cornelia Vismann, Akten: Medientechnik und Recht (Frankfurt am Main: Fischer, 2000), 33, with regard to Derrida and Pierre Legendre. 25. De Man, supra note 15 at 269. 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 Mller, Ralph Christensen, and Michael Sokolowski, Rechtstext und Textarbeit (Berlin: Duncker & 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.

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38. Urs Stheli, Sinnzusammenbrche. Eine dekonstruktive Lektre von Niklas Luhmanns Systemtheorie (Weilerswist: Velbrck 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: Interventions and Interviews 19712001 (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 (Mnchen: Fink 2000), 53. 45. Hamacher, supra note 10 at 192. 46. De Man, supra note 15 at 270. 47. Joachim Hruschka, Das Verstehen von Rechtstexten: Zur hermeneutischen Transpositivitt des positiven Rechts (Mnchen: Beck, 1972), 1. 48. Paul de Man, Foreword to Carol Jacobs, The Dissimulating Harmony (1978), in Critical Writings, 19531978 (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 PostmodernismAn Anthology (Malden, Oxford: Blackwell, 2001), 371. 50. In this direction, see Dietrich Busse, Was ist die Bedeutung eines Gesetzestextes?, in Friedrich Mller, ed., Untersuchungen zur Rechtslinguistik: Interdisziplinre Studien zu praktischer Semantik und Strukturierender 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 transnationalen 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 Flix Guattari, in Friedrich Balke and Joseph Vogl, eds., Gilles DeleuzeFluchtlinien der Philosophie (Mnchen: Fink, 1996), 179, 190. 56. Jrgen Habermas, Theorie des kommunikativen Handelns, Bd. 2, Zur Kritik der funktionalistischen Vernunft (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 Flix Guattari, What is Philosophy? (London, New York: Verso, 1994), 7. 59. Georg Wilhelm Friedrich Hegel, Theorie Werkausgabe, vol. 2, Jenaer Schriften (18011807) (Frankfurt am Main: Suhrkamp, 1970), 432. 60. Norbert Bolz, Am Ende der Gutenberg-Galaxis: Die neuen Kommunikationsverhltnisse, 2nd ed. (Mnchen: 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. (Tbingen: 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 dmocratie (Paris: Gallimard, 1998), 13.


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67. Martin Heidegger, Die onto-theo-logische Verfassung der Metaphysik, in Gesamtausgabe, vol. 11, Identitt und Differenz, Friedrich-Wilhelm v. Herrmann, ed. (Frankfurt am Main: Klostermann, 2006), 51. 68. Barthes, supra note 49 at 373. 69. Aleida Assmann, Erinnerungsrume: Formen und Wandlungen des kulturellen Gedchtnisses (Mnchen: Beck, 1999), 203. 70. Hans Ulrich Gumbrecht, Diesseits der Hermeneutik: Die Produktion von Prsenz (Frankfurt am Main: Suhrkamp, 2004), 28. 71. Christensen & Lerch, supra note 4 at 56. 72. Stheli, supra note 38 at 173. 73. Fabian Steinhauer, Die Rckkehr des Bilderstreits in das Recht, in Lerch, supra note 4 at 439, 460. 74. Sybille Krmer, SpracheStimmeSchrift: Sieben Gedanken ber Performativitt als Medialitt, 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); Jos Faur, Golden Doves with Silver Dots: Semiotics and Textuality in Rabbinic Tradition (Bloomington: Indiana University Press, 1986), 51. 76. Stheli, supra note 38 at 170. 77. Luhmann, Das Recht der Gesellschaft, supra note 27 at 255. 78. See Sarah Kofman, Le mpris des Juifs. Nietzsche, les Juifs, lantisemitisme (Paris: Galile, 1994). 79. Gross, supra note 62 at 7. For Schmitts followers, see Reinhard Mehring, Carl Schmitt und die Verfassungslehre unserer Tage, 120 Archiv des ffentlichen Rechts 177 (1995). 80. Hannah Arendt, Elemente und Ursprnge totaler Herrschaft (Mnchen: Piper 1986), 544 n.53. 81. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 19471951, Eberhard Freiherr von Medem, ed. (Berlin: Duncker & Humblot, 1991), 209. 82. Carl Schmitt, Der Nomos der Erde im Vlkerrecht des Jus Publicum Europaeum, 3d ed. (Berlin: Duncker & Humblot, 1988), 36. 83. See Christian Meier, Zu Carl Schmitts BegriffsbildungDas Politische und der Nomos, in Helmut Quaritsch, ed., Complexio Oppositorum: ber Carl Schmitt (Berlin: Duncker & Humblot, 1988), 537, 553. 84. Schmitt, supra note 82 at 36. 85. Id., at 36, 47. This denition of nomos, published after World War II but presumably written earlier, has a predecessor: Following the will of the Fhrer 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 ght and that our ght would be hopeless if we had to miss them. . . . We have them, and therefore I nish my lecture by telling two names: Adolf Hitler, Fhrer of the German people, whose will now forms the nomos of the German people, and Hans Frank, Fhrer 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 Fachvortrge, Rudolf Schraut, ed. [Berlin 1934], 242, 251). Cf. Gross, supra note 62, at 70. 86. Schmitt, supra note 82 at 42. 87. See Gross, supra note 62 at 225. 88. Carl Schmitt, ber die drei Arten des rechtswissenschaftlichen Denkens, 2nd ed. (Berlin: Duncker & Humblot, 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 Schmitts concept of Artgleichheit, see Peter Schneider, Ausnahmezustand und Norm: Eine Studie zur Rechtslehre von Carl Schmitt (Stuttgart: Deutsche VerlagsAnstalt, 1957), 211.


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91. Friedrich Balke, Der Staat nach seinem Ende: Die Versuchung Carl Schmitts (Mnchen: Fink, 1996), 7, 15. 92. On this, see Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political 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. (Mnchen, Leipzig: Duncker & Humblot, 1925), 22; and on this, Karl Lwith, Der okkasionelle Dezisionismus von C. Schmitt, in Smtliche Schriften, vol. 8, HeideggerDenker in drftiger Zeit. Zur Stellung der Philosophie im 20. Jahrhundert (Stuttgart: Metzler, 1984), 32. 95. Schmitt, supra note 94 at 24. 96. Id., at 25. 97. Id., at 22. 98. Balke, supra note 91 at 27. 99. Schmitt, supra note 94 at 98. 100. Id., at 26. 101. See Schmitt, supra note 81 at 160, with reference to Ernst Cassirers essay Substanzbegriff und Funktionsbegriff (Berlin 1910); sceptically to the coherence of Cassirers 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. 107. Schmitt, supra note 94 at 22. 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 arbitrariness . . . 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 (Chicago: 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. 115. De Man, supra note 48 at 221. 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 (BVerfGE 36, 342 [362]); on this, see Gustav Radbruch, Rechtsphilosophie, 8th ed. (Stuttgart: Koehler, 1973), 207; Einfhrung in die Rechtswissenschaft, 12th ed. (Stuttgart: Koehler, 1969), 254. 117. Mller, Christensen, and Sokolowski, supra note 28 at 132. 118. Barthes, supra note 64 at 11. 119. See Wolfgang Hoffman-Riem, Kriminalpolitik ist Gesellschaftspolitik (Frankfurt am Main: Suhrkamp, 2000), 14. 120. See Luhmann, supra note 102.


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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: Grundri 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 Familienbrgschaft in der Kollision unvertrglicher Handlungslogiken, 83 Kritische Vierteljahresschrift fr Gesetzgebung und Rechtswissenschaft 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 Rationalitt der Privatrechtsgesellschaft (Tbingen: Mohr Siebeck, 2006), 194, 348. 125. See Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, 2nd ed. (Tbingen: Mohr Siebeck, 1964), 23; Martin Kriele, Theorie der Rechtsgewinnung, entwickelt am Problem der Verfassungsinterpretation (Berlin: Duncker & Humblot, 1967), 50. 126. See Bernd Rthers, Demokratischer Rechtsstaat oder oligarchischer Richterstaat?, JuristenZeitung (2002), 365; Christoph Mllers, Mehr oder weniger virtuos. Der Mann am Klavier: Was spielt BGH-Prsident Hirsch?, Frankfurter Allgemeine Zeitung, Oct. 26, 2006, 37; Gnther Hirsch, ZwischenrufDer Richter wirds schon richten, Zeitschrift fr Rechtspolitik (2006), 161; Auf dem Weg zum Richterstaat? Vom Verhltnis des Richters zum Gesetzgeber in unserer Zeit, JuristenZeitung (2007), 853. 127. See Karl-Heinz Ladeur, Kritik der Abwgung in der Grundrechtsdogmatik: Pldoyer fr eine Erneuerung der liberalen Grundrechtstheorie (Tbingen: 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 Unverstndlichkeit: Johann Georg Hamann, Friedrich Schlegel, Jacques Derrida, Paul de Man (Frankfurt am Main: Suhrkamp, 2000), 333.