Law in the Time of Oxymora

A Synaesthesia of Language, Logic and Law

Rostam J. Neuwirth

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351170185
• Edition: 1
• Topic: Lingue e linguistica
• Subtopic: Linguistica

What do different concepts like true lie, bad luck, honest thief, old news, spacetime, glocalization, symplexity, sustainable development, constant change, soft law, substantive due process, pure law, bureaucratic efficiency and global justice have in common? What connections do they share with innumerable paradoxes, like the ones of happiness, time, globalization, sex, and of free will and fate?

Law in the Time of Oxymora provides answers to these conundrums by critically comparing the apparent rise in recent years of the use of rhetorical figures called "essentially oxymoronic concepts" (i.e. oxymoron, enantiosis and paradoxes) in the areas of art, science and law. Albeit to varying degrees, these concepts share the quality of giving expression to apparent contradictions. Through this quality, they also challenge the scientific paradigm rooted in the dualistic thinking and binary logic that is traditionally used in the West, as opposed to the East, where a paradoxical mode of thinking and fuzzy logic is said to have been cultivated.

Following a review of oxymora and paradoxes in art and various scientific writings, hundreds of "hard cases" featuring oxymora and a comprehensive review of the legal literature are discussed, revealing evidence suggesting that the present scientific paradigm of dualism alone will no longer be able to tackle the challenges arising from increasing diversity and complexity coupled with an apparent acceleration of change. Law in the Time of Oxymora reaches the surprising conclusion that essentially oxymoronic concepts may inaugurate a new era of cognition, involving the ways the senses interact and how we reason, think and make decisions in law and in life.

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1    Prologue

The quest for light

Dunkel wars, der Mond schien Helle!

(It was dark, the moon shone bright!)

Proverb

It may be best called an “open secret” that the best hiding places are right before us, where we least expect them. Such may be the case with a large number of experiences we are all exposed to, i.e. experiences captured by concepts and rhetoric we all use and are used to, without duly understanding their impact on our mind and their role in our future. Artists, scientists, lawyers and all citizens – literally no one is spared from the creeping effects of this rhetoric. From Shakespeare’s “honourable villain” to Orwellian doublethink and Faulkner’s “peaceful despair”, from the pianoforte to free jazz and other sounds of silence, from architecture as the “art of construction” (Baukunst) or “petrified music” to paintings by Escher and Magritte – all the art forms thrive on these concepts. In science too, physicists formulate the “uncertainty principle”, biologists study “cognitive genetics”, like economists analyse competition through “creative destruction”, computer experts develop a “memristor”, or physicians diagnose an “anaesthesia dolorosa” or “noninflammatory arthritis”. In social science, critical theorists are occupied with the culture industry, and political scientists try to measure “soft power” in a world of glocalization. In law too, attorneys write “lengthy briefs”, judges hear cases on “welcome sexual harassment”, while scholars debate “intellectual property”, “substantive due process” or “binding policies” adopted by the government. Or else, we may just order a frappuccino while enjoying a gourmet pizza, drive a sports utility vehicle (SUV) to a nearby cinema to watch the movie True Lies, or wear a “skort” with a “real fake” knockoff luxury handbag.

Literally, there appears to be no end to the kind of experiences referred to here. These experiences can also be transformed into manifold questions, like the following: Is there or can there be “global justice”? Can someone lie and tell the truth or be guilty and innocent at the same time? How can we realize the global goals of “sustainable development”? Is it possible to be happy and sad, or happy and poor, as well as sad and rich, at the same time? Do we all want to live in developing countries? What do “global justice”, “sadomasochism” and the “creative economy” have in common? Is clean coal a reality or an alternative fact? Do we learn from history, and is logic innate? Is there life after death, do genes transmit experiences? Can words change the way we think, our mind, or even us and the reality around us? Is there a free will or only fate or “kismet”?

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These experiences and questions all share as a common element the rise of so-called “essentially oxymoronic concepts” in contemporary discourses, artistic, scientific, legal and otherwise. The numerous experiences related to these concepts also share the paradox of the obvious, namely that, usually, the answers to the most complex questions may be hidden where we least expect them. This is also reflected in an old allegory regarding the human quest for “light” as a metaphor for the fundamental three questions of human evolution: “Where do we come from? What are we? Where are we going?” taken from the title of a painting by Paul Gauguin. The quest for light thus refers to efforts to discard the darkness obstructing a greater understanding and awareness of the direction that human evolution will or is supposed to take. By analogy, the quest for light is also closely related to the quest of law for truth and justice and the solution of serious problems on the way there. Metaphorically, the struggle of this quest is reflected in an old allegory which goes as follows:

There was a time in the history of the race when the gods stole from man his divinity, and, meeting in a high conclave, sought to decide where to hide that which they had stolen. One god suggested that they hide it on another planet, for there man could not find it, but another god arose and said that man was innately a great traveler and they had no guarantee that, eventually, he might not find his way there. “Let us,” he said, “hide it in the depths of the sea, at the bottom of the ocean for there it will be safe.” But again a dissenting voice was heard, and it was pointed out that man was a great natural investigator and that he might some day succeed in penetrating to the deepest depths as well as the greatest heights.¹

Evidently, this allegory invites the question of what causes the current darkness and where, in the end, the light guiding humans was hidden. If the reader has not already guessed it, to find out, law can play a useful role in its rediscovery. In the following pages, therefore, the attempt will be made to show that it is, most likely, in the same place from which the phenomenon of the rise of oxymoronic concepts is taking its origin.

Notes

1    See Foster Bailey, The Spirit of Masonry, 3rd ed (New York: Lucis Publishing, 1979) at 106–107 [Italics added].

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2 Introduction

In the beginning was the Word, and the Word was with God, and the Word was God. The same was in the beginning with God. All things were made by him; and without him was not any thing made that was made. In him was life; and the life was the light of men. And the light shineth in darkness; and the darkness comprehended it not.¹

Law in the Time of Oxymora is essentially concerned with the role of law in an age of a seemingly accelerating pace of change or at least the perception of change. It is a time where so-called “essentially oxymoronic concepts” appear to be on the rise globally. Put briefly, these essentially oxymoronic concepts are rhetorical figures that display varying degrees of intrinsic contradictions or consist of apparently conflicting and logically irreconcilable propositions. Most of all, their contradictory nature appears to be incompatible and clash with the dominant mode of binary or bivalent logics as used in dualistic thinking and classical logic. Linguistics has defined several of these figures, such as oxymoron, enantiosis (or contradictio in adiecto) and paradox. However, in their usage the borders distinguishing them are often blurred both in linguistics and in other scientific contexts. Therefore, the present book condenses them into the new category of essentially oxymoronic concepts, which I have deliberately created in homage to an article by Walter B. Gallie, titled “Essentially Contested Concepts”, published in 1956.² Gallie’s seminal article is often used as a means to communicate better the meaning of numerous vague concepts that dominate our multiple discourses, like art, health, justice or the rule of law. All these mentioned and most other concepts we frequently use are, in fact, contested concepts, namely those of which we share the terminology but not necessarily the same meaning.

Important for the role of concepts and language in law as a means of organizing life and governing societies, the idea underlying this book is that essentially oxymoronic concepts evolved from their contested counterparts. Generally speaking, they mark a shift of human culture from contestation and conflict to contradiction and convergence. It is a shift symbolizing the changing way humans perceive reality, conceive their thoughts based on ideas and communicate them to others so as to foster their understanding of the phenomena around and within them. The central difference is thus that, in an era of contestation, the process of understanding proceeded primarily by way of conflicts – solved by contest between persons, groups, companies or countries – which still dominate large parts of our lives, from education and sports, to economics, politics, war and the law. By contrast, the dawning era of contradiction and convergence inaugurated by oxymoronic concepts may be one where the conflicts are simultaneously present in every person exposed to these concepts. Put differently, essentially oxymoronic concepts elevate conflicts from the external and interpersonal to the internal and intrapersonal level of the mind.

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If this premise is confirmed and essentially oxymoronic concepts do have an impact on the way we perceive, think and subsequently act, then it may be of great relevance for all areas of life. It may allow us to formulate new ideas for the efficient tackling and proper solution of all kinds of problems, both individual and collective or local and global. Eventually, they may inaugurate a new mode or even organ of cognition, which may be born out of the contradictions they carry. This potential impact is best highlighted in the context of law. The reason is that law nowadays pervades all areas of life such that it can easily be termed a universal science. At the same time, all these areas of life are changing at unprecedented and truly breakneck speeds, as reflected in the pace of technological innovation and scientific progress. Additionally, due to the continuing and irreversible globalizing trends, law is gradually being transformed, and, most of all, called upon to evolve, from a system of many separate national legal systems to an emerging coherent system of global law. In view of a rising number of serious global problems and threats, law still has a long way to go to that end.

The necessity of establishing a global law supported by a more efficient and just global institutional framework is recognized by the global governance debate. The main challenges related to global governance were outlined by James N. Rosenau in the following lines:

To anticipate the prospects for global governance in the decades ahead is to discern powerful tensions, profound contradictions, and perplexing paradoxes. It is to search for order in disorder, for coherence in contradiction, and for continuity in change. It is to confront processes that mask both growth and decay. It is to look for authorities that are obscure, boundaries that are in flux, and systems of rule that are emergent. And it is to experience hope embedded in despair.³

Global governance thus meets with serious paradoxes. Its most important one consists in the difficulty of creating a truly global legal framework without having a truly global legal platform in which the necessary deliberations can take place. These conditions are presently not met. First, this is because the present international legal order established mainly after World War II does not reflect the political, economic and other realities of the twenty-first century. Second, the main international organizations are fragmented and inefficient and cannot provide a platform for a much needed reform.

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So how to proceed in the face of this global governance paradox? As in the past, if the necessary changes do not come from within the system, they will have to come from somewhere else. The idea pursued here is that institutional changes will follow only when significant cognitive changes have taken place. In view of many divisions and borders, law and its noble goals of pursuing justice can provide a common ground for tracking possible sources of cognitive changes. One track may be provided by language, as language is a way to make visible the underlying cognitive processes. In this regard, Andrew Halpin and Volker Roeben also suggested the development of a “common language” as the way to overcome the present international discord that characterizes both “the different legal provisions and perspectives found within the societies of the world”.⁴

Another useful piece of advice for addressing the current paradox of global governance was given by George P. Fletcher when he wrote that “if we wish to avoid disabling contradictions, we must reach a deeper understanding of the legal premises that guide our thinking”.⁵ This implies that usually solutions to problems have to be found at levels adequate to the causes that created them. In other words, the solution of a paradox, which is contradictory within a system of binary logic and dualistic thinking, must be sought beyond the constraints imposed by such logic.

For the many unsettling questions related to both tasks, namely developing a common language and trying to unveil the deeper causes of many apparent contradictions, essentially oxymoronic concepts may hold a key to the answers. This is what this book is aiming to contribute to, namely a better understanding of the cognitive challenges that law in the time of oxymora faces. It means to decipher the codes hidden in essentially oxymoronic concepts, especially to enquire into the causes leading to their rise and to comprehend the impact they have on cognition in general and decision making in particular. Ultimately, it seeks to assess their role in evolution and the contribution they can make in the process of the formation of a new global legal ...