LEGAL SYMBOLISM: ON LAW, TIME AND EUROPEAN IDENTITY
by Jiří Přibáň. Aldershort: Ashgate, 2007. 222pp. Cloth $99.95/£55.00. ISBN: 9780754670735.
Reviewed by Peter Brezina, Department of Legal Theory and Legal Education, Faculty of Law, Charles University in Prague. Email: peter.brezina [at] gmail.com.
The latest book by Jiří Přibáň is challenging: it challenges usual views of interconnection between law, morality and politics by its Luhmannian background of autopoietic systems, it challenges the common modern conception of homogenous time by its hermeneutic twists, it challenges the regular perception of constitution-making by its re-thinking of the ‘us-them’ difference articulated in terms of both ethnos and demos. It also challenges, however, the reader: the text largely employs the specific vocabulary of several disciplines – mainly jurisprudence, theoretical sociology, political science and hermeneutic philosophy (resulting in what has been labeled a ‘post-modern bluff’ by some unwelcoming comments on a Czech law blog); the argument is not straightforward and at times is indeed difficult to follow; the book lacks a clear ‘punch-line’ of any kind, leaving any urge for ‘the answer’ not catered for. To my mind, all these challenges make the book all the more interesting and important, although, as I shall point out later, there are several weak spots that could have been avoided. Let us then face the challenge.
The theoretical background of the book is indeed highly varied. In his theorization of law, morality and politics, Přibáň draws on Niklas Luhmann’s theory of autopoietic systems and offers its original and revealing elaboration. He is, however, in no way confined to a strictly Luhmannian line of thought and uses a mosaic of both contemporary and past thinkers, stretching from T. Arnold to S. Žižek, to push systems theory to its limits and beyond. His notion of ‘symbol’ and ‘symbolism,’ as well as the thorough differentiation of ‘time,’ are derived from the hermeneutical tradition in philosophy and sociology, and he cites, among many others, E. Husserl, H.-G. Gadamer, N. Elias and J. Habermas (the attempt at reconciliation of the thoughts of Luhmann and Habermas is one of the most intriguing motives of the theoretical layer of this book). It should be noted at this point that he largely avoids the use of semiology or (post-)structuralism, so any expectations in this direction would be disappointed. In the legal field the sources range from J. H. H. Weiler to N. MacCormick and R. Alexy. In assessing the notion of the spirit of the laws, he ventures all the way back to Plato and proceeds through Hegel to Montesquieu and the German school of historical jurisprudence. Finally, the perspective which would arguably be of the greatest relevance to the audience of this review – that is, his perspective on political science, is to a large degree influenced by transition studies, complementing his mainly Europe-focused argument by connections with other contexts, especially the one of post-apartheid South Africa. Here, then, comes the first [*221] challenge: the reader should be able to follow the bulk of the argument with bits and pieces from works of other thinkers spread like lanterns along the path, pointing the way forward without hindering the flow of ideas by excessive explanation. It should not be a problem for anyone possessing fundamental skills and knowledge in the field of humanities and social theory; it could prove to be a major hindrance for a standard continental or even common law lawyer trained in the positivist tradition.
As stated above, the theoretical background of this book has a strong Luhmannian flavor, and before proceeding further into the more ‘political’ argument, I shall outline it here briefly. The key metaphor of the underlying theoretical argument is that of ‘noise’ as the means of communication between otherwise discrete systems of law, politics and morality. ‘Noise’ is the necessary, unavoidable, yet inherently uneasy and obscure link between these systems unable to share a common language (or ‘code’). Through this noise, the respective systems apprehend and internalize concepts that originally draw meaning from a different, foreign code. Through this noise the ‘totality’ of each system is breached by an experience of its own exteriority. Thus, unlike the common understanding, here the term ‘information noise’ has a positive meaning: rather than obscuring the communication it actually permits it at least in some form.
Přibáň’s theory is thus a decisive ‘no’ to all the criticisms accusing Luhmann’s theory of being totalitarian: ‘totality’ as a characteristic of an autopoietic system is revealed as operational discreteness, breached and fed from the outside without being denied as such. The notions of ‘system’ of law, morality and politics can thus be employed both in place of definitions (which are always periculosa), and as handy and revealing analytic tools.
With their help, Přibáň examines the notion of ‘the Spirit of the Laws’ as a transcendental frame of reference providing meaning to the plain text of law, tracing it from its ancient platonic roots to modern expressions by Montesquieu and Hegel. He shows persuasively that the notion of a single ‘Spirit of the Laws’ transcendental to (and thus shared by) all these systems is obscuring, as there is no hierarchy between them, and their common means of communication is just that: a form of noise with no inherent substantive value. ‘The Spirit of the Laws’ thus must be seen as a concept emanating internally from each system, and that in turn leads to several ‘spirits of the laws’ (or manifestations thereof), provoking noisy communication in their own right.
Moreover, the aforementioned historical overview reveals, through the idea of ‘the Spirit’ as “a symbol of the timeless present of transcendental moral ideals” (p.27), the basic inherent symbolic feature of law as such, namely its temporality. Přibáň proceeds to explore this feature further, unveiling its ambiguous (in many respects) character. Law is “a mechanism of social change and stabilization” (p.57); it uses historical events to stabilize the present and define the future course; it draws on ‘the timeless present’ and yet shapes the time as we live it. The latter is best exemplified by constitutionalization and revolution – two interconnected [*222] phenomena Přibáň uses as both prime examples and experimental grounds for a deeper analysis, thus extending his earlier works on the revolutionary changes of 1989 in Central Europe.
At this point we reach the part that is probably the most interesting from the perspective of political science, namely an analysis of constitution-making in post-soviet Central European countries, an assessment of the recent attempt at constitution-making at the EU level, and an evaluation of several specific ways of legal time-construction using examples of restitution and ‘lustration’ legislation embodying a unique retrospective aspect of revolutionary changes. All these motives share a common trait: the identity-building as a process using legal means and moral issues for specific political ends – all in terms of the systems theory, the whole idea being a prime example of application thereof.
With regard to the constitution-making processes, Přibáň focuses on the two rather conflicting, yet complimentary sources of identity: demos and ethnos. When dealing with the Central European context, he notes that the (ethno-) nationalist tones have played key roles in the politics of the region for decades and surfaced even in the midst of the communist era (Přibáň points to the post-Stalinist shifts in the late 1950s and 60s). The fall of the Soviet block turned out to incur a call for a new identity, and with lack of deeper rooted civil traditions in the respective states, ethnicity was the single readily available option. The relative weight of both of these conceptions can be to some extent assessed through textual analysis of the newly-drafted constitutions; however, the actual policies of the post-revolutionary countries show much stronger convergence than the wording of the documents in question. It should also be noted that these documents are somehow interrelated, and, for instance, the arguably most ‘civil-based’ (Czech) is a direct reaction to the one arguably most ‘ethnic-based’ (Slovak).
Přibáň shows that one of the major drives promoting the demos side of identity in these countries was the process of European integration, itself highly civil-driven. He even uses the term “taming ethnos” when describing this particular issue. Considering the history of the region, it is a highly welcome and appreciated input, although it may seem dismissive at first sight. However, he argues that the European project itself lacks any common political field and hence both demos and ethnos of its own, and thus cannot follow the identity-building logic of a nation state, as the failure of the constitutional attempt clearly exemplified. The reason is deep rooted in the fundaments of the entire European project, as it has always been characterized and pursued as ‘politics of depoliticization.’ “Politics communicated by the logic of economy and law is a founding paradox of the European Union” (p.117). To put it in different words: European politics is not an autonomous (autopoietic) political system; it does not use the political code (government/opposition), but rather codes of different systems in its communication. Furthermore, the ‘repoliticization’ of EU takes place primarily at the level of its Member States in the form of questioning the very concept of European integration and thus further undermining its weak legitimacy. Another option for ‘repoliticization’ – via ‘ethicalization’ of [*223] the EU, that is through establishing a moral field that would supplement the legal and economic systems and hopefully with time give rise to a genuine political field in its own right – is hampered by the very image of the EU as a cold, regulatory machinery with which it is indeed very difficult to identify.
The last part of the book is devoted to retrospective justice, so typical an issue in post-revolutionary (or ‘transition’) countries. Přibáň returns to the time-constituting aspect of legality and discusses the context and post-Soviet judicial history of Central European countries. He draws a line between the ‘continuity-driven’ approach of the more ‘transition’-characterized countries (Poland and especially Hungary, where even the new Constitution was formally adopted by the old communist Parliament in 1989) and the much more retributive approach present in the more ‘revolutionary’ ones. The message is quite clear: in the countries that had experienced a genuine rupture with the past era, there was an urge to embody this experience into the newly founded identity. The future required a more stringent reading of the past. In the final chapter Přibáň follows two phenomena closely linked with retrospective justice, namely restitution laws and constitutional case-law in that area in Hungary and Czech Republic, and the specific vetting policies introduced by ‘lustration acts’ in Czechoslovakia (and eventually enforced only in the Czech part of the divided country after 1993). He shows a clear difference between the ‘prospective’ approach adopted by the Hungarian Constitutional Court and the ‘retrospective’ approach adopted by its Czech counterpart. Although there are noticeable differences even between the laws under constitutional scrutiny, the judgments express a much more striking divergence, and Přibáň tries to point at its nuances. Finally he approaches the lustration acts introducing policies prohibiting certain exponents of the past regime (such as, most controversially, agents and collaborators of secret services) from holding some public offices. Apart from the standard apologies of such an approach, he raises the issue of these acts creating ‘scapegoats’ purifying the consciousness of the people loyal to the old regime for decades. Yet another instance of identity- and time-construction.
As I hope to have shown, this book (also published in Czech) raises a range of important and often highly controversial issues, be it in Czech or wider European contexts. To a reader unfamiliar with Central European politics of the early 1990s or with the background of the enlargement process of the EU culminating in 2004, it can provide invaluable views of an attentive (and to a certain degree participant) observer. And a reader only vaguely familiar with the theory of autopoietic systems can find here both a vivid example of its usefulness and a reason to delve deeper into its exploration. The book is, nonetheless, also liable of being criticized for some of its weaker spots, as I have pointed out in the opening part of this review. Let me conclude by revisiting these critical remarks.
I have marked the notion of ‘noise’ as the key metaphor of the theoretical background of the book. It can, nevertheless, also be employed as a more general metaphor for the book and for the ‘mode of communication’ [*224] between its individual parts (or ‘layers’). It fits well with avoidance of ‘constitutional’ and hence ‘constituting’ discourse that I appreciate; however, at times it leaves the reader with somewhat too few clues and links. Even the notion of ‘depoliticization of politics’ in EU context is presented without overt connection to the theoretical assumptions, and its reformulation stated above is merely my reading of this, to my mind, obvious link, and should be seen as such. Other instances of ‘noisiness’ include the terms ‘symbolism’ and ‘constitution’: the former, the would-be central tenet of the argument, remains rather undefined, and its clearest definition from the closing chapter can be objected as being too vague and involving a certain degree of circularity (“Legal symbolism is best understood as the legal system’s specific reflection of social expectations of communal togetherness, goodness and justice. It is a mode of legal communication originating in the symbolic communication of cultural unity and the moral values of a political community,” pp.195-196); the latter denotes a wider notion of constitution for the most part of the book, yet at times it quite clearly denotes the specific and single text of a legal document. This ‘noisiness’ is thus yet another challenge for the reader – and probably the least fruitful one.
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Weiler, J.H.H. 1999. THE CONSTITUTION OF EUROPE: ‘DO THE NEW CLOTHES HAVE AN EMPEROR?’ AND OTHER ESSAYS ON EUROPEAN INTEGRATION. Cambridge: Cambridge University Press. [*225]
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© Copyright 2008 by the author, Peter Brezina.
Labels: Vol. 18 No. 3