2006 Issue


How Legal Language Works


By Louis E. Wolcher

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What a legal object is — its identity or essence — is co-determined by how it is: its mode of existence, or the way it manifests itself in time as a lived phenomenon. Thus, any serious effort to think about the human institutions that we call “law” requires a philosophy of how legal language (statutes, precedents, contracts, etc.) is related to legal events such as the interpretation and the enforcement of law. This article addresses the “how” question from a standpoint that has been profoundly influenced by the work of Wittgenstein.  It notes that a major international political movement currently exists, the primary purpose of which is to make legal language clear (or clearer) to laypersons. Accepting this movement’s binary opposition between linguistic clarity and obscurity as its initial point of departure, the article begins by describing its philosophy of philosophy; it then develops six well-defined ideas that build upon Wittgenstein’s distinction between the implicit rules that make up a system of language (a “language game” embedded in a “form of life”) and statements that are made, by means of the rules, within the system. Appropriating Heidegger’s concept of the hermeneutic circle to elucidate the critical phenomenological difference between interpreting legal language and recognizing its meaning, on the one hand, and, on the other hand, automatically receiving linguistic signs, the article then maintains that the latter phenomenon is in fact the ultimate ground of the legal form of life. The two sections that follow this discussion unpack the distinction found in Wittgenstein’s philosophy of language between the magical and the logical views of language. The magical view imagines that legal language must always “mean” something; following this view leads thought into obscurity, confusion, and occasionally even into absurdity. In contrast, the logical view of language attempts to identify the different descriptive techniques (methods of comparison and methods of application) that people employ in various forms of life, and it seeks philosophical clarity about, rather than a “theory” or “explanation” of, the many ways in which legal language is actually used by lawyers and judges. Finally, the article attempts to show that clarity is not a property of linguistic signs as such, but rather is a function of the differences between forms of life whose constitutions and continuities are produced by history in the largest sense of the word. It also submits that the demand for clarity in legal language is ultimately a demand for admission into the politically powerful form of life that is inhabited by lawyers, judges, and legislators.


Human Rights, Democracy, and the Left


By Jarna Petman

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There is no doubt that human rights — especially international human rights — have been a Left or a liberal Left agenda throughout the 20th century, existing alongside liberal internationalism, and an embedded anti-State rhetoric. “Ours is the age of rights,” writes in a triumphant note Louis Henkin, one of the most important U.S. advocates of international human rights towards the end of the 20th century. For him, the struggle for human rights is part of a grander fight for progressive causes:

That the interest of the people is the accepted touchstone of legitimate government gives hope — even, perhaps, renders it likely — that in time more governments will be more representative, and more governments will do better by the people’s rights and interests.

Henkin finds the antecedents for the struggle in the way international law has always sought to provide some protection for individuals. The pedigree of modern human rights, he writes, comes from 19th-century efforts to protect ethnic or religious minorities and the fight against slavery. After the First World War, the flame was kept alight through minorities treaties in the League of Nations and the International Labour Organisation instruments. The decisive moment, however, had to wait until the Second World War.

The war against Hitler identified violations of human rights as a major threat to international peace, and they were linked in the rhetoric of the war and in plans for the peace. Human rights were prominent in the constitutions of the new nations that began to emerge in the postwar years.


Resented and Unforgiven


By Panu Minkkien

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The creation of some thirty truth commissions during the last four decades in countries throughout Central and South America, Asia, Africa and Europe has quite understandably produced a wealth of legal literature focusing on the possibilities of reconciliation and transitional justice after periods of intense internal conflict and crimes of the direst kind.1 Most of this literature rotates around a particular problem that is lucidly expressed in the introduction to the collection Lethe’s Law:

[B]ecause of the increasing demand that the past be dealt with for the sake of a shared future, and due to the inability of conventional notions of justice to succeed in this context, law is being forced to incorporate a structural and symbolic element of forgiveness. This results in a new demand being placed on law, on an unprecedentedly grand scale, to be merciful rather than just in the conventional sense.

I would agree but argue further that we are witnessing a change in scale rather than any radical shift in our understanding of law. The “new demand” identified by the authors mimics faithfully the logic of what we could call the critical dilemma of modern law. A central theme in practically all critically motivated thinking during the previous century has been the inability of modern law to deliver the objective of social justice that it expressly advocates. This central theme is evident in sociologically inspired attempts to substitute the formal rationality of law with the purposive rationality of the welfare state as well as in more metaphysical deliberations on the aporetic nature of “true” justice in relation to law. But the “new demand” also introduces a new problem as far as theoretical accounts of law are concerned, namely how to integrate forgiveness with law.


Homo Sacer, Homosexual: Some Thoughts on Waging Tax Guerrilla Warfare


By Anthony C. Infanti

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I always find January depressing. It isn’t the weather that gets me down, although the gray Pittsburgh skies and the frigid temperatures certainly can be trying. No, it’s the constant barrage of mail from banks, mortgage companies, and my employer, all of whom are so thoughtfully providing me with the information that I need to complete my federal income tax return. Given the “ugh!” that is probably reverberating inside your head as you read this, I’m sure that this plaint would sound trite if I weren’t to immediately confess that I’m a “tax geek,” someone who makes his living teaching and writing about the tax laws.

Alas, I find tax time depressing for reasons different from most. To me, tax time is more than the occasion for fulfilling my obligation to defray a portion of the cost of government; it is an annual reminder of my difference — and of my oppression by the government because of that difference. Completing my federal income tax return reminds me that the government has singled out for condemnation my partner and me, my sister and her partner, and every other lesbian and gay man in the United States.

When the W-2s and 1099s begin to appear in my mailbox, I can’t help but think how the federal government legally erased even the possibility of a relationship for me when it enacted the Defense of Marriage Act (DOMA). From the perspective of the federal government, my marriage to my partner in Toronto, Canada, never really happened — and, for that matter, never could happen. Each year, when tax season comes around, I feel the legal eraser scraping against me once again as the federal government returns to ensure that it has removed all trace of my relationship. As if to continually reaffirm its success in wiping away the connection between us (or, perhaps, because it never really can succeed), the federal government forces my partner and me to act as if we were total strangers by demanding that we file two “single” tax returns every April 15.

But even within the diaphanous realm of federal tax law, we cannot truly be made “single.” Because our lives are intertwined financially and emotionally, when the federal government designates us as legal strangers, it can, at most, banish us to that uncomfortable and uncertain space between “single” and “joint.” Life in this tax “limbo” is in some ways more precarious than DOMA’s outright condemnation would seem to indicate. In tax limbo, members of lesbian and gay couples are told what they are not (i.e., married), but they are never told what they are (and, concomitantly, how they should report transactions between them). The existence of this limbo opens the way for the federal government to visit further, more dehumanizing, indignities upon us: it allows the federal government to invade the sanctity of our homes — and of our relationships — to demand that we account for our every move, with our partners and with others, or suffer consequences that range from confiscatory monetary sanctions (i.e., interest, penalties, and, of course, interest on the penalties) to imprisonment.

So, when the dreams of sugarplums in December give way to nightmares about what might better be termed the lesbian and gay circle of tax hell in January, I can’t help but feel haunted by the voices of the reactionary congressmen who enacted DOMA as they repeatedly deprecate my relationship by referring to it as a “marriage” — with the quotation marks that mark it as a sham, a failed and hopelessly failing attempt at establishing a lasting, loving tie with another human being.


The Historical Amnesia of Samuel Alito, A Review of The Lost World of Italian American


By Stephen J. Fortunato, Jr.

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During the last months of 2005, as the nomination of Samuel Alito to the United States Supreme Court by President George W. Bush was ponderously discussed by members of the Senate Judiciary Committee, political activists and columnists, the background issue of Alito’s Italian heritage occasionally seeped into the discourse, but remained for the most part an issue vital only to those of Italian extraction who saw any criticism of Alito as being driven by antipathy toward his — and their — origins.  Anyone following the nomination process was aware, of course, of Bush’s obligatory nod to Alito’s immigrant provenance, with the usual acknowledgements of parental hard work and sacrifice so that the bright youngster, with his own appropriate self-starting and discipline, could achieve the American dream. And Alito kept to the script when he blandly addressed the members of the Judiciary Committee with opening remarks about his hard-working parents.

Even though one has nothing to do with the selection of one’s parents or ethnic heritage, there is nothing inherently wrong with — and there may be much that is right in —alluding to one’s forbears and directing an expression of gratitude to one’s parents. But what was really at work with the Bush-Alito homage to the nominee’s Italian roots was an unspoken awareness that he had risen above them and happily had forgotten the struggles and humiliations of his parents’ and predecessors’ generation of Italian immigrants and other new arrivals to this country.

Alito was put forward as a candidate for the Supreme Court not as an Italian acutely aware of the past hardships and deprivations endured by his group, which had for many provoked a radical critique and active resistance to economic and political exclusion and exploitation. On the contrary, Alito was appointed because his record since his college days at Princeton, through law school at Yale, and into public life revealed that he had no awareness of, let alone compassion for, his own people or others betrayed by the American promise. For Alito, there was no resonance in his soul from the past, not from the historic strikes in Lawrence, Massachusetts, and Patterson, New Jersey, not from the Palmer raids and the subsequent forced deportation of Italians, not from Sacco and Vanzetti, not from the rich tradition of Italian socialist and anarchist writing and agitating. When George W. Bush submitted Samuel Alito’s name to the United States Senate, he knew that Alito was a white male fervently committed to the defense of capitalism, free markets, and imperialism managed by an imperial presidency, all now in their ascendancy.

Righteous Empire


By Peter Fitzpatrick

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A borrowed beginning: “The business of America may be business as Calvin Coolidge once said, but it is at least as accurate and as important to assert that the religion of America is America.” That comes from Jaroslav Pelikan’s review in 1971 of Martin E. Marty, Righteous Empire: The Protestant Experience in America. So, the title of this paper is also borrowed. I will return to it shortly, after first offering a hopefully less derivative indication of what this paper tries to do. Initially, it engages with the sense in which it can be said that “the religion of America is America.” More pointedly, it engages with the notion of “American civil religion,” to adopt the standard term. American civil religion is advanced by its proponents as a religion that infuses political life in the United States, and one distinct from religious denominations and sects, yet a religion that is still a religious religion (if the pleonasm can be tolerated). As such, it can be contrasted to what could be called European civil religion, a religion discerned in supposedly secular attachments to modern nation and modern empire. My preliminary argument, then, will be that American civil religion is less the religious religion claimed by its proponents and more akin to a secular religion of the European variety.

The rest of the paper revolves around the mutually constituent relation between this secular civil religion and “American empire,” to adopt a reviving usage. Although both imperial self-elevation and God’s political involvement are usually taken to be recently acquired qualities of the U.S. polity, the argument here will be that both practices have always characterized the United States even if in varying forms and in varying intensities. That expanded perspective on empire and political religion is then focused on two vaunted carriers and justifications of imperium — on law and on human rights as a legal artifact. These both prove to be intimately revealing of the nature of modern empire. Such empire’s self-constituting and god-like claim is to be able to embed an illimitable reach in a determinate entity. Law and human rights have a homologous ability. Empire adopts law and human rights as commensurate instruments in its own cause. This leads to the apt “critical” conclusion that law and human rights are to be understood as instruments of some surpassing power, in this case of empire. Yet the argument goes on to show how the very attributes of law and human rights that would subordinate them to imperial power result also in their not being contained in or by empire. Rather, they extend beyond and serve also to resist empire. And on that deeply discordant note, the essay ends, but this is also a note of promise, a note resonant with the intimation of existence being otherwise.

Returning now to the title, this paper’s notion of being “righteous” is more variegated than Marty’s use of “righteous” to characterize the formation of a Protestant ascendance in the United States. There is an immediate relevance to “righteous” in that the term is often used, as we will see, in relation to the pretensions of American empire, but the term is meant also to accommodate the complex just outlined. Obligingly, “righteous” covers acting rightly whether the source or motivation is religious or secular, and it would extend without emendation to self-righteousness, to the solipsistic appropriation of being in the right that characterizes modern empire. Then, in terms of my further argument about law and human rights, “righteous” would extend agreeably to being lawful and rightful.

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