Freedom and the Law

1. The Law as Individual Claim

Law_151-200.indd 39 10/27/09 8:08 AM 1 THE LAW AS INDIVIDUAL CLAIM Contempom)' philosophical schools that focus on the analysis of language have probably taught us less than they pretend. Nonetheless, they have reminded us of something that we know well but easily forget. Words are "words," and it isn't possible to deal with them as if they were "things" or, to put it another way, as if they were objects of sensorial experience the definitions of which make sense insofar as they refer more or less directly to said experience. The word "law" in particular cannot be dealt with more than others as a "thing"; the less so as it doesn't have a meaning directly or uniquely referrable to a sensorial experience as such. Any analysis of the "law" presents itself first as a linguistic analysis, that is, as an attempt to overcome the above-mentioned difficulty in finding out the actual meaning of that word in the language. This is not easy because people may use the word law from many points of view and with meanings which not only change according to the various kinds of people who use that word, but may also change within the language used by the same kind of people. Even among professors of "law" you may notice that the meaning of the word is not always the same. Longlasting disputes among international lawyers or constitutional lawyers on the one side and civil lawyers on the other may be quoted in this respect. This difficulty tends to be tiring and discouraging, the result 189 Law_151-200.indd 40 10/27/09 8:08 AM 190 THE LAW AND POLITICS being that people who start a linguistic analysis about the "law" may be tempted to discontinue it sooner or later in order to adopt one of the following three statements: a) law is what my colleagues X, Y, and Z and I know is "law" and we don't care about other opinions; b) law is what I suggest or I "stipulate" to call in that way without caring very much about other "stipulations " relating to the same word; c) law is everything everybody wants to call in that way whatever that may mean, and it isn't worthwhile carrying on a research that has no end. While the third statement leads to skepticism, the former two actually generate the most part of the so-called general theories of law. To be honest, tiredness is not, however, the only source of the two former statements. There is also a practical reason for them. Lawyers or teachers of law are not primarily concerned with a theoretical analysis about the meaning of the word "law." They directly or indirectly tend, as any legal operator, to practical results such as convincing a judge and winning a case. Any conventional definition that may lead to their goal is welcome. Supposing, however, that we have no practical goals and try to avoid skepticism at the same time, I think there is only one escape from the arbitrariness of the two former statements: to take into consideration as far as possible all discourses in which the word "law" is involved, in order to see whether we happen to find out a minimal common meaning ofthe word "law." This kind of research is not to be confused with that of the lexicographer who limits himself to register one or more meanings of the same word without necessarily worrying about the connections between all the meanings of the same word. This kind of research is only possible if we accept a postulate: that a minimal common meaning does exist. In other words, we must assume that the language of the man in the street, as well as that of the experts on the technicalities of courts, statutes, and precedents, are homogeneous enough to justify the research.1 I daresay that this research of the minimal common meaning of 1 I have no need to explain at length why I call that a postulate. Indeed, no demonstration of said assumption could be supplied until the research is finished and it is obvious that the latter is practically inexhaustible owing to the great number of languages and meanings which should be taken into consideration. Law_151-200.indd 41 10/27/09 8:08 AM THE LAW AS INDIVIDUAL CLAIM 191 the word "law" is, in...