Around the turn between the sixteenth and the seventeenth centuries, the audience in the London Globe Theatre witnessed the premiĆØre of Hamletāand arguably the invention of a new form of argument. In order to reveal the true circumstances of the death of his father, Hamlet produces a play within a play, called the Murder of Gonzago.1 The audience thus views how the play is taken to a meta-level: Shakespeare constructs within the fictional reality of the play a second theatrical performance, in which actors are staged as actors playing a second role. Hamlet confronts the suspected murderer with a performance that is similar to the actual events leading to his fatherās death, in order to see āif his occulted guilt do not itself unkennel in one speech.ā2
With the play within a play, Shakespeare conveys a theory of theatrical performance by suggesting how such performances take effect: if the suspicion is true, the murderer will show a reaction. The play within a play is thus an element of self-reflection. At the same time, however, the play within a play moves the main story forward. It remains integrated in the presentation of the play and, as such, contributes to its effects on the audience. The theoretical perspectives on the role and functions of theatre cannot escape the confines of the frame of the stage. As part of a play, they are theatre.
Being theatre, however, they do not remain detached from the practice they purport to reflect. As a way of telling the story, the play within a play is inevitably performative for the impression on the audience. It articulates a theory on how meaning is conveyed with theatrical instruments and subtly influences the way in which the play will be received by the audience because, paradoxically, it makes itself a background condition of its own understanding.
The same holds true for law and theory. Like a play within a play, theory makes itself a background condition for practicing law. It is not the detached observation of a physical object, but is an essential part of the construction of the legal performance. This does not have merely stylistic consequences. Theory is a powerful instrument that shapes the contours of our legal practices. This is what I claim in the first chapter.
This acknowledgment of the political role and the power of theory prepares the ground for the project of the bookāthe case for a meta-theory of law. Unlike theatrical performances, law is normative, and legal decisions have immediate effects on humans of flesh and blood. As a consequence of this potential effect, the performativity of legal theory is a political issue. There is an urgent need to understand how theory works, on what basis it can be legitimate, and what alternatives are available in order to make an informed choice between them. This aspect has been largely ignored in legal-theoretical scholarship, in particular in approaches to law beyond the state. This book is an attempt to mind and ultimately to bridge this gap in the literatureāa playbill for the performances of global legal thought.
1.1 Theory and Practice
That theory and practice are intrinsically related is not a new argument, neither in general legal studies3 nor in the theory of international law.4 Yet, the relationship of theory and practice in the law is difficult to write about, for it is precisely this relationship, which is a watershed mark between sometimes diametrically different conceptions of the law. Instead of a comprehensive introduction to this topic, for which one would have to study the history of legal thought in extenso, I will constrain myself to a few remarks that illustrate the way of analysis that I will follow in the book.
1.1.1 Performativity of Theory
Theory is the continuous search for answers to persisting questions. How should law be applied? How do we determine the sources of the law? What is the relationship of one legal rule to another? What are the rules of interpretation? What is the purpose of law in a society? How does law relate to other sources of societal normativity, like ethics or etiquette? In this non-exhaustive list, every question consists of many sub-questions. All of them, however, have one thing in common: released from the constraints of concrete cases, they are abstract conceptions on what law is and what it should be.
Law is not a physical but a cognitive object. An abstract view of the law is thus fundamentally different from an abstract conception of an apple. While our thoughts on apple trees, the process of growing, or the inner organic structure of the fruit leave the physical appearance of the apple unchanged, theoretical beliefs about the law decide what the law is. As a social practice, law is what a certain group of people treat as part of this practice.
Immanuel Kant expressed this relation in terms of theory and practice. He argued that ā[a] collection of rules, even of practical rules, is termed a theory if the rules concerned are envisaged as principles of a fairly general nature, and if they are abstracted from numerous conditions, which, nonetheless, influence their practical application. Conversely, not all activities are called practice, but only those realizations of a particular purpose which are considered to comply with certain generally conceived principles of procedure.ā5 The generally conceived principles of procedure, in this picture, are those principles that we believe are common to a practice of law.
Like the Hartian rule of recognition, these principles define the sources of law.6 They may include black letter, but they may also acknowledge custom. They may deal with rules, but they may also promote soft law. As there is no general and unanimous view on what law is, these principles of procedure that define the law are indeterminate. In some areas, they may be more disputed than in others (global law is such an example), but in all areas, they are subject to theoretical discussions. Views on what the law is impact our understanding of practice because they make themselves a background condition of understanding the law: they define what law is in the first place.
Theory does not only impact our view of what law is. More fundamentally, it determines how we do law by providing the daily toolkit for legal interpretation (āthe rules of the gameā).7 Elsewhere, I have described this methodological basis as a legal grammarāthe conceptual and linguistic foundation on which legal decisions restālawās meta-structure, its argumentative techniques, and its systematicity.8 This methodological element is pervasive throughout theoretical approaches, even though we rarely find open commitments to this influence. Ronald Dworkinās interpretivism is a notable exception,9 where other approaches prefer to conceal their methodological aspirations in analytic terms. Yet, giving answers to the questions of what law is and what we should do with it shapes those principles that define and produce our perception of the legal performance.
Theory appears here as a frame of justification against which legal practice is evaluated. As any other form of normative order,10 theory contains assumptions on the justification of social rules, norms, and institutions. As Rainer Forst and Klaus GĆ¼nther have noted, normative orders provide the basis for political authority, distributory patterns, and individual freedom.11 Such orders presuppose and generate justifications in a continuous process of interaction between normativity and social world. A social practice is oriented on narratives of justification that provide its conceptual background.12 These narratives may be the result of contingent historical constellations, but as they are collectively memorized, they become an institutional basis for the social practice.
The impact of theory is pervasive even in frameworks that are usually considered non-theoretical. For example, the method of legal positivism attributes a high value to the concept of legal validity as the distinction between lege lata and lege ferenda. Thus, it is frequently depicted as a method āagainst theory.ā In a positivistās paradigm, theory should be little more than creative writing. Theoretical views can be used to influence processes of legislation, but they should not inform legal judgments before they are incorporated in the body of positive law. In particular, the normative distinction between theory and practice holds true for legal officials. As Jeremy Waldron notes, the rule of law āis the principle that an official should enforce the law even when it is in his confident opinion unjust, morally wrong, or misguided as a matter of policy.ā13 The official is not supposed to make own theoretical assumptions of a part of the practice. Rather, officials should engage in a mechanical application of the law to a given social world.
Cass Sunstein has illustrated that even in a strictly positivist framework that puts utmost importance on the isolation of law from theory, the theoretical influence is inevitable. Practice translates rules into decisions, and this process of translation requires theoretical views. The most precise account of rules contains abstract concepts and definitions. Even in simple cases, there are always open questions on how to put these concepts into practice. āA legal system must answer this [ā¦] by reference to something ā and that something must be a conception of autonomy, or utility, or efficiency, or welfare, or something else. Even mundane areas of the law of contracts are therefore ...