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RohanGreyFirstPaper 15 - 09 Aug 2012 - Main.RohanGrey
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| | | Nonsense Matters | |
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< | If the law is social action, and lawyers applied theorists thereof, why do they place so much attention on legal language - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous and/or meaningless? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | >
> | If the law is social action, and lawyers applied theorists thereof, why is so much attention placed on the communicative medium - law speak - and transcendental terms in particular? Aren't all non-functional terms – what Cohen would call “transcendental nonsense” – superfluous from a functional point of view? Perhaps not. Transcendental words such as “justice,” “reasonable” and “property” create dynamic semantic gaps in the otherwise static and tightly functional vocabulary of the law. At an individual level, this inbuilt ambiguity enables lawyers, jurists and even the average Joe to input their own evolving political and epistomological values into the fabric of the law. At a systemic level, it serves as a political pressure valve that can overcome intransigence or breakdown in other lawmaking processes without resorting to revolution. | | | | |
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< | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomena. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | >
> | But transcendental language also brings its own problems. Highly contested words risk becoming so bloated with overlapping and conflicting meanings that they lose even the most fuzzily discernible shape and undermine faith in the apolitical elements of the rule of law. This is the case today with the word “efficiency,” for example, which depending on context may refer to a monetary, political or logical phenomenon. Such tensions are typically resolved when an interpretation (or family of interpretations) achieves temporary ascendancy in the discursive battleground, or the legal term is abandoned and replaced in a Kuhnian-style paradigm-shift for the process of defining the indefinable to begin again from scratch. The latter outcome explains how one generation's struggle over “economic justice” may become the next generation's struggle between “a fair go,” and “personal liberty.” | | | Whereof One Cannot Speak... |
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