Law and Philosophy of Language

The Ordinariness of Law

Pascal Richard

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000396751
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

Academic legal production, when it focuses on the study of law, generally grasps this concept on the basis of a reference to positive law and its practice.

This book differs clearly from these analyses and integrates the legal approach into the philosophy of normative language, philosophical realism and pragmatism. The aim is not only to place the examination of law in the immanence of its practice, but also to take note of the fact that legal enunciation must be taken seriously. In order to arrive at this analysis, it is necessary to go beyond traditional perspectives and to base reflection on an investigation of the conditions for enunciating law in our democracies. This analysis thus offers a renewal of the ethics inherent in the action of jurists and an original reflection on the role of certain legal tools such as concepts, categories, or "provisions". In this sense, the work nourishes its originality not only by the transversality of its approach, but also by the will to situate legal thought in concrete forms of its implementation.

The book will be essential reading for academics working in the areas of legal theory, legal philosophy and constitutional theory.

1 The constitutional judge to the test of transgression

The example of the decision of March 26, 2020 ¹

DOI: 10.4324/9781003130109-2

The Constitutional Council’s decision of March 26, 2020 (Decision No. 799-DC) is for some the expression of a scandal² or it could be the manifestation of a stumbling block in the action by the French constitutional judge.³ In either event, the constitutional judge decided not to respect the Constitution.

The facts are known. It was a question of examining the constitutionality of an organic law, the sole article of which stated:

in order to deal with the consequences of the covid-19 virus epidemic, the time limits mentioned in articles 23–4, 23–5 and 23–10 of Ordinance No. 58–1067 of 7 November 1958 on the organic law on the Constitutional Council are suspended until 30 June 2020.

This article thus suspends the three-month period during which the Council of State and the Court of Cassation are required to rule on the transmission to the Council of a priority question of constitutionality. According to Article 46 of the Constitution:

The law to which the Constitution confers the nature of organic laws shall be voted and amended under the following conditions: The draft or proposal may not be submitted to the deliberation and vote of the Assemblies on first reading until the deadlines set in the third paragraph of Article 42 have expired. However, if the accelerated procedure has been initiated under the conditions provided for in Article 45, the draft or proposal may not be submitted to the deliberations of the first meeting to which it is referred before the expiry of a period of fifteen days after its submission.

1 Thanks to Christian Dubuis Santini and Lorenzo Passerini Glazel who each in their own way offered me their signifiers to teach me how to hear better.

2 A social enunciation by transforming itself into a “right” ignores the instance of the enunciation, which then appears as the grain of sand that will give consistency to our scepticism. A perfect illustration of this can be found in the Orestie. In this tragedy the grain of sand takes the form of a stone: the one that will allow Athena to vote. What turns language into decision is always a stumbling block and a scandal (Proskomma). To quote some who very quickly became scandalised or were “surprised” by this decision and without wishing to be exhaustive: J.E. Gicquel, R. Letteron, or V. Champeil-Desplats, “Le Conseil constitutionnel face à lui-même,” La revue des droits de l’homme, April 2020. Clearly, this situation seems to be deteriorating in view of the reactions of part of the doctrine to the decision n°2020–843 QPC of May 28, 2020.

3 N. Boulic, “‘Tu sais ne pas être injuste’: Justice et procès dans les Euménides d’Eschyle,” Criminocorpus, “Théâtre et Justice: autour de la mise en scène des Criminels de Ferdinand Bruckner par Richard Brunel,” Justice et théâtre: d’une fondation commune à la confrontation de deux paroles en crise,http://journals.openedition.org/criminocorpus/2121 (accessed March 25, 2020).

The Council of Ministers adopted the draft organic law on March 18, 2020. On this date, the government initiated the fast-track procedure on this text and it was tabled in the Senate. From March 19, the upper chamber examined it in committee and then in public session. The Senate voted on the bill at first reading 24 hours after it was tabled, thereby violating Article 46 of the Constitution. However, the Constitutional Court, in a spectacularly lapidary manner, merely stated that: “In view of the particular circumstances of the case, there is no reason for judge that this organic law was adopted in violation of the rules of procedure provided for in Article 46 of the Constitution.” This analysis is particularly surprising in the light of what is generally presented as an abstract control on the relationship between norms.⁴

This decision illustrates various ambivalences that are linked to the enunciation of the law by the judge and that the health crisis offers to see in full light today. More precisely, this scandal shows, in its own way, the impossible catch-up – in the formulation of the law – between the subject of the statement and the subject of the enunciation⁵. This is a performative paradox in which the constitutional judge enunciates something and does something different from what he enunciates. It is this screen between saying it (the legal statement) and doing it (the legal enunciation) that we are going to question.

This decision will thus be the subject of three developments: the first concerns the positioning of the legal problem and the specific nature of the constitutional judge’s enunciation (I). Following THIS demonstration, we will attempt to show the logic of the performative paradox that seems to us supprimer present in the constitutional judge’s analysis. It will be a matter of representing the limits and the proximities inherent in the dimensions of enunciation and enunciation in the legal and political fields through the intermediary of topological thought (II). Finally, we will show how the Council could manage to justify what it does in the light of what it says in an ethic of its re-examined function (III).

4 On this question of the relationship between law and fact in the constitutional process: J.-J. Pardini, Le juge constitutionnel et le fait en Italie, PUAM, Aix, Marseille, 2002.

5 B. Latour, “Notes breves sur l’écologie du droit saisie comme une énonciation,” in Cosmopolitiques: pratiques cosmopolitiques du droit, Cahiers théoriques pour l'écologie politique, 8, L’Aube, Paris, 2004, pp. 34–40. The question we must ask ourselves is: how can we find the links between the different planes of enunciation, despite the constant discrepancy introduced by all the continuous dispatches that dislocate the continuity of words and deeds? Or, if you will how can we get back up the slope that has been constantly descended by the enunciative disengagements? (op. cit., p. 35).

I The nature of the enunciation of the constitutional judge: A performative paradox

In the decision of the constitutional court, the presence of a screen between what is stated in law and the act of enunciation that makes that statement (A) is thus apparent. This distinction makes it necessary to deal with the validity of the enunciation in a specific way, starting from a clarification of the pragmatic validity concept. (B).

A The gap between the legal statement and the legal enunciation

In an obvious but always hidden way, positive law – the positive statement validated as a right from the law – struggles to recover the part of the enunciation it is based on in terms of its meaning. The utterance acts as a screen the film of legal claims is projected on but supprimer by its nature would “screen” the reality of these claims.⁶ This distortion is known and the jurist speaks of “legal qualification.” In the legal field, this truth is expressed in many ways: the gap between the Sein and the Sollen, the fact and the law, the text and its meaning, the intelligence and the will, the internal point of view and the external point of view. In this dichotomy, what gets lost is the subject that states and lays down the legal proposition,⁷ and what will be expressed this time positively is the preponderance of the recognition of a thing over the impossible knowledge of the thing “in itself.” The legal statement that recognises the valid presence of an occult norm masks the knowledge of the legal operator’s action. Professor Amselek spoke admirably of this need to place the acts of speech of the jurisditeurs within a certain horizon. The latter never “say” only the legal regulation; they also “say” what they are doing.⁸ This discrepancy implies examining the decision that is important to us for specificity in the constitutional judge’s logic within the philosophy of normative language.

6 The aim here will be to report, albeit in a slightly different way, on an effect of what jurists conceive more easily by means of the classic opposition between “normativism” (which views the legal order as closed in on itself based on the distinction between existence and validity) and “realism” (which considers, for its part, that the legal statement must be open to the experience of a meaning that is itself likely to appear not in an act of intelligence – finding a right that is “already there” – but in an act of will). To name only the US realists, see also M.P. Golding, “Realism and Functionalism in the Legal Thoughts of Felix S. Cohen” (1981) Cornell Law Quarterly 66 (1032); K. Llewellyn, Jurisprudence. Realism in Theory and Practice, Routledge, New York, 2008.

7 This specialty language by its nature expresses an oversight of the position of the utterance, it is all in the inherent form of its utterance. It is thus constructed with regard to the foreclosure of any subject of the utterance. This foreclosure is countered by a certain empirical reading of the law. In this perspective: É. Millard, Théorie du droit, Dalloz, 2006. Professor Millard quotes Jérôme Frank, (Court son Trial, Princeton University Press, New York, 1949) who developed the famous formula that can account for the jurisdictional decision D=PxS. In this formula (P) corresponds to the personality of the judge and (S) to the stimuli. Millard develops this formula as follows: AC=D because N (an act of concretization is presented as a decision because of the presence of a norm). Moreover, this norm is analysed as follows PxS=>N. The stimuli are understood as follows: S = S(f) + S(cf) + S(inf) in this formula S(f) corresponds to formalised sources of enunciations; S(cf) to conformalised sources (sources to which one conforms) and S(inf) to informal sources such as ideology.

8 P. Amselek, “Le locutoire et l’illocutoire dans les énonciations relatives aux normes juridiques,” in Ecrits de philosophie du droit, Panthéon-Assas, Paris, pp. 441–446.

B Taking into account a pragmatic validity.

In positive law, two dimensions seem to be inherent in the relationship between law and language. In fact, if it is impossible to get out of language, as modern philosophy seems to show us, and has done since Wittgenstein, action will necessarily become a utterance in order to be thought. Moreover, the statement itself, and even more specifically the legal statement, implies an essential part of performativity. In this sense, if “to do” is always to say, then it can be “a doing.”⁹ It is in this perspective that the discovery of the performative dimension of language and its relevance to the understanding of legal discourse, is placed. These two dimensions¹⁰ are usually distinct in legal analysis.

A distinction is thus made between the values placed on legal statements and their validity. Reference to a value provides a measure of an object by reference to an external element (e.g., language), whereas validity reflects, more specifically, the good health of that object. Thus, three approaches to the validity of deontological statements can be identified, deontology being characterised by a reflection on what is duty as a modality and on what can be the value and interest of logic for the benefit of the deontology.¹¹ The legal statement can be apprehended from an examination of its syntactic, pragmatic or semantic validity. In these various situations, validity is the predicate either of an act that has deontic status (deontic states of affairs) or of an act that has deontic status (deontic states of affairs). It is pragmatic validity, or deontic states of affairs posed by performative deontic acts (it is syntactic validity); or the validity of deontic utterances. It is semantic validity, which then imposes the question of the reference of the utterance and finally brings the question inherent in semantic validity closer to the – classical – question of truth in the ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Introduction
• 1. The constitutional judge to the test of transgression: The example of the decision of March 26, 2020
• 2. The category of “fundamental rights”: Fundamentality or the virtue of importance
• 3. Is it still possible to criticise the Council of State?: For a logical examination of the validity of the administrative judge’s “creations”
• 4. The meaning of the fault “as such …”
• 5. “Dispositional concepts” in law
• 6. The impossible experience of rapport in the work of Professor A. Conte…
• 7. The ordinariness of a political commitment and its normativities
• Bibliography
• Index