A blog on why norms matter online

Tuesday, January 17, 2012

The symbolic power of law in Internet Governance

The discussion on the existence of a right to access to the Internet shows no sign of abating. This is a good thing. Or, as Joy Liddicoat of the  Association for Progressive Communications (APC) put it in a statement addressed to Vint Cerf:
Your New York Times column Internet Access is Not a Human Right sparked a lively debate about the internet, access and human rights. In 2012 we will need this debate more than ever before. While we will vigorously debate some of your points, your call to action for the technical community to take responsibility for human rights is incredibly timely.
As Joy also notes, much of the debate that followed Vint Cerf's call arms focused on conceptual issues. What are civil rights (a subset of human rights), what are human rights (rights every person has by virtue of being a person), can the UN declare a human right (not really), has the UN declared a human right to access (no, it hasn't) ... 

The importance some commentators have put on the wording of Vint Cerf's article made a recent call for papers of the journals juridikum and Kriminologisches Journal (KrimJ) on the "Symbolic Quality of Law" very timely. Law, you see, is not something that just 'is there'. The relationship between law and social reality is much more intricate that that. The power of law in creating a symbolic level on which social relations are then discussed and defined and social interactions legalized or declared illegal merits discussion. 

This is true for national law and for international law. However, discussing the symbolic quality of law is nothing that lawyers can do alone. Just as engineers have to team up with human rights experts (and vice versa) to discuss the burning issues of Internet Governance, lawyers, philosophers and social scientists together need to deconstruct the symbolic quality law inheres. 

This task reminds me of work that I did in 2010 for a ‘Theory of Law’ class during my LL.M. year at Harvard Law School with Professor Sargentich.

We turned Stanley Fish’s famous question – “Is there a text in this class?” – into an instrument with which to uncover the hidden assumptions supporting liberal legality in law. The question I thus tried to answer in a short analysis of Stanley Fish’s thinking was: “Is there a law in this society?”

With some slight adaptions, I believe that most of my arguments can be used to study the role of law and the deconstruction of law and its symbolic quality both in society and information society, as well.

Back in 2010, I wrote that Stanley Fish shows us that his colleague’s answer to the question whethere there was “a text in this class” (as opposed to deconstructed collections of words without one meaning) – his answer being “Yes, there is a text in this class; what’s more it has meanings; and I am going to tell you what they are” – does not hold water, but is rather a “testimony to the power of social and institutional circumstances to establish norms of behavior [because of] the absence of transcendental norms”.

Similarly, the signature claims of critical jurisprudence allow us to understand why there is no such thing as “the law” in the sense that norms have meanings that can be “told”. It is only within interpretative communities, as I will show in the following, that legal norms are endowed with meaning within a matrix of different and conflicting ideals. I will argue that an interpretation of Fish, informed by critical jurisprudence, leads to the conclusion that we should be aware of the differences between what the law says, what the law means and what the law does. So no: there is no one objective and cognizable “law” that commands respect in this society, just as there is no cognizable, objectively correct interpretation of the “text” in the class of Fish’s colleague that commands universal assent. But let me start with Fish’s critique of the all too uncritical approach to linguistic performance.

            Fish criticizes, as Wittgenstein, Foucault and others have before him, that we do not question our interpretation of texts and fail to grasp that what we understand a text to mean depends not primarily upon the text, but upon us, the readers, and our frame of mind. During his career Fish has developed two approaches to interpretation: The radical Fish argues that texts are created (or substantialized) through the act of interpretation itself. Texts are not 'out there' (do not exist objectively), but rather, once read, develop their contours 'in here' (in and through the readers who endow them with meaning). No objective textual meaning dominates interpretation. In Fish’s words, “disagreements are not settled by the facts, but are the means by which the facts are settled”. Texts are thus fluid and do not have a fixed meaning.

The moderate Fish still argues that meaning depends on interpretative frameworks, but strongly denies that this makes meaning completely subjective and arbitrary. Rather, our grasp of meaning depends on our frame of mind (and thought) that we have developed through our membership in a certain interpretative community which has a rather stable makeup. The assignment of meaning to a text is arbitrary, because the frame’s acceptance is predecisional and Fish sees no rational way to adjudicate between competing claims of meaning. Thus not only are texts fluid; readers conceptions are, too.

In order to make Fish’s themes relatable to three signature claims of critical jurisprudence, we first have to use Dworkin for a purposive reduction of Fish. Since Fish wants (us) to engage in communication, he must assume that meaning can be communicated through language. We have known, since Ferdinand de Saussure, that the linguistic sign is arbitrary, that here is an arbitrary relationship between the signifier and the signified. But while the sign ‘tree’ has indeed only an arbiratry relationship to the woody singled-stemmed plant with apical dominance and secondary branches, the English speaking community has agreed on the prima facie meaning of ‘tree’. This, however, does not help us in our query into the interpretation of ‘tree’, its ‘secondary’ meaning. Only this second level of interpretation – where we encounter arbitrary choices with regard to the assignment of meaning between interpretative communities, but general consistency among its members – will be the focus of the ensuing analysis.

First, critical jurisprudence tells us that legal arguments tend to build coherence. They do this because of a commitment to principles, policies and purposes that shape legal discussions and bear down on them. Just as a good legal theory fits and justifies most standing rules, a good literary theory makes a text meaningful. Fish would argue that there is no real way to tell whether an interpretation is good or not, but that the fact of fitting in with other interpretations make it seem likely.

Second, critical jurisprudence scholars argue that we do not only find principles, policies and purposes in law (and thus can deduce how the world ought to be), but also a social vision, a picture of the way the world actually is or might possibly be. With regard to legal argument, the collection of ideals which justify the given law is called ideology. Adherents of critical jurisprudence’s structure thesis argue that there is a knowable legal ideology that explains and legitimates reality. This point corresponds very well to Fish’s notion of interpretative communities, though he would disagree with the possibility of a single knowable ideology. Legal ideology is the collection of principles, policies and purposes through which members of the legal interpretative community perceive and understand the world (and interpret legal rules). Reading Fish into the critical claim on ideology makes us understand legal discourse as an instituted ideology-driven discourse, one rooted in actual social institutions, in which the legislatures, the executive and the judiciary participate as long as it is consonant with a certain social vision. The law is put forward as fit to be argued before a judge, by a judge who distills its meaning for the particular community.

Understanding the ideology behind law that critical jurisprudence identified as arbitrary but coherent in the Fishian sense makes it possible to perceive the legal interpretation in force as nothing more than the interpretation of those who have force and who can enforce their interpretation. Put differently: The ruling interpretation is the one of the rulers (of those who hold actual power in a specific society and project it through monopolizing interpretation). Thus, the legal interpretation proffered by the majority (or a minority in power) seeks to emphasize stasis and continuity. Members of the interpretative communities that suggest differing interpretations plead for intellectual development, for things to move and turn (around) (Lat.: volvere) and are thus revolutionaries.

This raises the conceptually anti-Fishian question whether a ‘right’ interpretation is at all possible. Does a new interpretation based on a recent ruling become right at the moment it is published? Or only after the legal community has digested and not opposed it? Comparative analyses of common law adjudication and judgments in civil law countries would lead to different results. What would be true for both systems, however, is in instituted discourse the right resolution is only ever the one that is accepted. This implies that “right” can only be a descriptive and not a normative term. If we accept that lawyers constitute one and only one interpretative community, then an interpretation is right if it is physically enforced, not because it is metaphysically right. As will become evident, I believe there is in fact more than one of these communities, which makes the question moot.

The third signature claim of critical jurisprudence explains that there are competing ideals at work in the legal system. Unlike legal rationalists, critical scholars will argue that there will always be theories and counter-theories that compete for adherents. Indeed, adherents of the critical jurisprudence’s conflict thesis posit that law and social practice are influenced by a number of competing, transformative and equally valuable conflicting ideals. They do not only transform the law, but also transform what is understood to be the law.

But who does this understanding? Where are the competing and conflicting ideals at work that influence not only what the law is perceived to be – its nomological dimension – but also how we talk about the law – its semantic, Fishian dimension? Basically, we are left with three options: Dworkin’s argument that law is one interpretative community must break down in light of the different interpretations that exist on the meta-level. The Realists’ conception that every reader is their own interpretative community is neither inspiring nor helpful. A Structuralist reading of Fish, however, allows us to conclude that there are a certain number of interpretative communities within and constitutive of the legal community. These subcommunities, within the limits of meaning established by the legal community, differentiate meanings further and provide the interpretorial framework for competing ideals, for interpretations and counter-interpretations.

The preceding paragraph has provided the foil for my argument: I do not deny that texts are open to interpretation. Law is (also) text. Logically, law is thus open to interpretation. But it does not follow that all of law is always open to all possible interpretations. With Fish, it can be argued that the legal community is one interpretative community. But just as Benedict Anderson identified socially constructed, culture-based “imagined communities”, I would posit that within law there are intersecting, possible imagined, partly institutionalized, imagined sub-communities with regard to interpreting legal speech that sometimes have very strong immune systems vis-à-vis the mainstream’s meta-interpretations. The names of these sub-communities are often eponymous with the ideals that influence their interpretation. Interestingly, they are – for most purposes – indistinguishable from the Modern Language Association’s 1992 list of cohesive fields of literary criticism, including, inter alia, feminist criticism, African American criticism, Marxist criticism, psychological criticism and post-colonial criticism (see MLA (ed.), Redrawing the Boundaries: The Transformation of English and American Literary Studies (1992). Most of these fields have counterparts in the field of legal sub-communities: there is a feminist critique of law, an African American legal critique, a Marxist theory of law, post-colonial legal studies etc.

The assignation of legal meaning to certain terms is arbitrary. But once meaning has been assigned, individuals who wish to take part in the discourse cannot unilaterally discard this meaning. Even if they criticize the law’s language they have to use the language of the law to do it. Failure to engage in the community’s discourse patterns and fundamental disrespect for the meaning the interpretative community assigned to certain legal texts would lead to a breakdown in communication. Therefore, as mentioned before, the real role of sub-communities is in the meta-debate. There are indeed certain ‘legal essences’ which are interpreted similarly by most members of the legal community and all sub-communities. If it were otherwise, communication would be impossible. A meaningful debates on the comparative advantages of a retributive and restorative criminal justice systems is impossible, if there is no basic, fundamental agreement on what the terms mean. The difference between “murder” and “manslaughter” or between “theft” and “robbery” is essential for criminal law debates; it is not for newspaper articles or high school schoolyards. Built on this basic understanding, any further agreement is preconditioned on membership in the same sub-community.

Varying the Dworkinian reduction of Fish, I would argue that three dimensions of legal language have to be distinguished: 1) What does the legal text say; 2) What does the text mean; 3) What does the legal text do.

What the legal text says is what could be termed its “essence”, a prima facie, rather unreflective meaning that most members of the interpretative community of lawyers have agreed upon. A law proscribing murder prohibits the killing of another person. It is relatively static and can only be changed gradually. Something is forbidden because the law says so. The question, what the law means, leads us to a wholly different category of questions, one that necessitates recourse to the interpretative sub-communities. Existing law forbidding gay marriage will be interpreted by LBGT lawyers (thus lawyers of the LBGT interpretative sub-community) as an attempt to immunize traditional notions of marriage, thus reflecting existing power differentials and historical conceptions of what marriages ought to be like, while members of other interpretative communities (e.g. lawyers belonging to the intersecting sub-communities of conservatives and Christians) might see the prohibition as an affirmation of divine commandments. This is not what the law says, but what it means to them. Lawyers specializing in mergers and acquisitions or tax law might not (care enough to) identify any meaning (as in trans-semantic content) in the prohibition, but just consider it on its face, and not engage in debates on its meaning. While most members of the legal interpretative community would thus agree on what certain laws say (also because they have all gone to law school and were thus faced with forces tending to reproduce existing hierarchies and modes of thinking), they might not agree on what laws mean (though they often do because the reproduction machinery does not only provide them with the tools of the trade, but seeks to influence their frame of mind as well). Laws as reflection of entrenched power differentials in society might mean different things to different people coming from different interpretative sub-communities.

Importantly, laws do not only say and mean something, they also do something. This is an important dimension that is understandably absent in Fish’s analysis, as he focuses on literary interpretation. While Robert Frost’s The Road Not Taken might make us feel awed and lead us to reflect critically on our choices, reading the poem does not “do” anything in the sense of changing socio-legal relations between one member of a society and the society or between two or more of its members. Some legal phrases, if pronounced by appropriate authorities, “do” something, insofar as they change reality. Two “I do”s are necessary to marry a couple; the oath of office makes the person proclaiming it the President; a sentence, when pronounced by the judge in his office, sends the offender away to jail. (This particularly powerful performative dimension makes the interpretation of nomological texts different from the interpretation of the performative power of signs outside of norms-based discourse, though the linguistic field of pragmatics devotes much attention to “how to do things with words”, as J. L. Austin entitled his 1955 William James Lectures delivered at Harvard University.)

There are – uniquely to law – physical dangers of refusing the interpretative community’s mainstream interpretation. Somebody, for example, who considers the production of child pornography to be protected under the First Amendment can be seen as nothing else than a member of the sub-community of strong supporters of the First Amendment who proposes an interpretation of the limits of free speech diverging from the mainstream’s. He cannot be proven wrong in the Fishian sense, but he will go to prison under New York v. Ferber, if he acts on this interpretation.

Fish’s analysis of the indeterminateness of meaning and the role of institutions as imagined headquarters of interpretative communities can be substantially enriched by an analysis in light of the tenets of critical jurisprudence. Essentially, the existence of theories and counter-theories has influenced a more sophisticated construction of Fish: There is not only one legal community, but a number of different sub-communities. The “shared understanding of what could possibly be at stake” in certain institutional scenarios enables lawyers to converse. Fish writes that within interpretative communities shared assumptions “delimit[s] in advance the paths that [our] consciousness can possibly take” (ibid.). I have argued that this is true only insofar as the first, the semantic level is concerned. Knowing as a member the legal interpretative community what a “contract” is, indeed limits the paths that our consciousness can take when we search for the meaning of “contract”. And yet, we should not stop there. On a meta-level we can, having agreed on the essence of “contract”, discuss what importance contracts have in social life and inhowfar their enforcement might stabilize existing power relationships through ownership. It is the common consciousness that allows us to reflect back on what we, as lawyers, believe. 

To answer the question Fish’s colleague was confronted with in light of this analysis: Yes, there is a law in this society; what’s more it has a certain shared essential content; and these are the interpretations which lawyers give it; and these are reflective of the power relationships that sub-groups see embedded in these meanings, which they then criticize.

The law school is a powerful harmonizer of minds. Yet the arbitrariness of language and of law should not be far from our mind when we practice law. Membership in interpretative communities and sub-communities carries responsibilities. It is important to question interpretation, especially when those of the ruling community are at odds with those of sub-communities. Sometimes, as Robert Frost already knew, it is indeed a good idea to take the road less travelled by: in real life and in the interpretation of literature and law. If nothing else, the “linguistic turn” made lawyers look around and consider the road they have travelled on so far.

Keeping this in mind, I believe, can contribute to understanding both the debate on the future role of human rights in Internet Governance and the conceptual battle being waged on the existence and non-existence of specific rights. 

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