The Imaginary Foundation of Legal Systems: A Mimetic Perspective

Abstract

Starting from the premise that the normative foundation of legal systems is widely considered to be imaginary, this article addresses the question how actors in those systems are able to experience this fictional basis and consider it binding. As the answers already given in legal and political philosophy tend to be limited to instrumental explanations, it is argued that insights from aesthetic philosophy, and more specifically mimesis theory, can help to gain a more profound understanding of both the nature of fictions and the human capacity to use them. Drawing from Kendall Walton's work, fiction use is reconceptualized as an interactive game of make-believe that has active and passive players, involves the use of props, and is governed by both constitutive and regulative rules. It is claimed that human beings are able to play and appreciate this game on the basis of a dual consciousness in which their minds are partly devoted to going along in the fiction of legal hegemony, and partly having to derivate experiences. Tentatively, it is argued that these derivate experiences form our main gratification, and hence the prime motive, for playing the game and accepting its outcomes.

Keywords:

• Anti-foundationalism
• Grundnorm
• fiction
• mimesis
• simulation
• legal aesthetics
• legitimacy

ACKNOWLEDGEMENTS

Many thanks to Louise Vigeant, Marco de Waard, Marc Rutgers, Martin van Hees, Sanne Taekema, Christian Krijnen, René Brouwer, Jobien Monster and the anonymous reviewer for their comments and suggestions. Previous versions of this article were presented at the 4th Dutch Conference on Practical Philosophy in Eindhoven 2012, and at the Annual Political Science Conference (Politicologenetmaal) in Amsterdam 2012.

Notes

1. Jean-Jacques Rousseau, Social Contract [1762], ed. Maurice Cranston (London: Penguin, 1969).

2. William Conklin, The Invisible Origins of Legal Positivism, A Re-Reading of a Tradition (Dordrecht: Kluwer, 2001), 128. Also William Conklin, “The Invisible Author of Legal Authority,” Law and Critique 7/2 (1996): 173–92.

3. Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” Cardozo Law Review 11/5–6 (1990).

4. Hans Kelsen, Pure Theory of Law (Berkeley and Los Angeles: University of California Press, 1967); originally published as Reine Rechtslehre (Vienna: Deuticke, 1960).

5. Ibid.; Conklin, Invisible Origins of Legal Positivism, 171–200; Roberto Vernego, “Kelsen's Rechtssatze as Detached Statements,” in Essays on Kelsen, ed. Richard Tur and William Twinings (Oxford: Clarendon, 1986), 99–108; Tony Honoré, “The Basic Norm of a Society,” in Normativity and Norms, ed. Stanley Paulson and Bonnie Litschewski (Oxford: Clarendon, 1998), 89–112.

6. Conklin, Invisible Origins of Legal Positivism, 295.

7. Ibid. In ancient Greek the word archè stands for beginning, origin, first cause.

8. Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap/Harvard University Press, 1986), 225–75.

9. Ibid., 245.

10. Conklin, Invisible Origins of Legal Positivism, 299.

11. Ibid.

12. In his Critique of Practical Reason, Kant addresses the forerunners of the “as if” viewpoint under the heading “postulates of practical reason.” These are practically necessary but theoretically indemonstrable propositions. In order to debate religious virtue, for instance, one has to presuppose the existence of God. Similarly, Kelsen calls the Grundnorm a transcendental–logical presupposition: transcendental because it is not part of positive law, logical because we must assume the Grundnorm's existence in order to generate legal knowledge; Kelsen, Pure Theory of Law, 9, 202. For the fictional status of the Grundnorm, see also Hans Kelsen, General Theory of Norms (Oxford: Clarendon, 1991); originally published as Allgemeine Theorie der Normen (Vienna: Manz, 1973). See also Conklin, Invisible Origins of Legal Positivism, 187.

13. Pierre Legendre, Leçons IV: L’inestimable Objet de la Transmission (Paris: Fayard, 1985); also Susan Chaplin, “Fictions of Origin: Law, Abjection, Difference,” Law and Critique (2005): 16; Slavoj Žižek, The Fragile Absolute (London: Verso, 2000).

14. Legendre, Leçons IV, 240. Also Chaplin, “Fictions of Origin,” 166–7.

15. Richard Mohr, “Living Legal Fictions: Constituting the State or Submerging the Signifier?,” International Journal for the Semiotics of Law 19 (2006): 238.

16. Ibid., 240, 257.

17. Ibid., 238, 256.

18. Hans Vaihinger, Die Philosophie des als ob. System der theoretischen, praktischen und religiösen Fiktionen der Menschheit auf Grund eines idealistischen Positivismus (Leipzig: von Felix Meiner, 1922), chs I–IV; also Arthur Fine, “Fictionalism,” Midwest Studies in Philosophy 18 (1993): 1–18.

19. Vaihinger, Philosophie des als ob, bk I, A, ch. XV.

20. Ibid. bk. I, A, ch. IX.

21. Lon Fuller, Legal Fictions (Stanford, CA: Stanford University Press, 1967); originally published in three parts in Illinois Law Review 25 (1930–31); also Nancy Knauer, “Legal Fictions and Juristic Truth,” St. Thomas Law Review 23 (2010), 1–49.

22. Fuller, Legal Fictions, 51–3; also Kenneth Campbell, “Fuller on Legal Fictions,” Law and Philosophy 2/3 (1983): 339–370.

23. Fuller, Legal Fictions, 55.

24. Ibid., 54.

25. Ibid., 55–6. According to Fuller, in the corporate responsibility example the reconciliation of result and premise only takes place in form: the premise is basically altered (the term “person” is stretched up) to fit the specific result. In the acceptance example such a linguistic change does not place, says Fuller.

26. Ibid., 84.

27. Kelsen, Pure Theory of Law.

28. Ibid., 204.

29. Jonathan Potter, Representing Reality, Discourse, Rhetoric and Social Construction (London: Sage, 1996), 150–75.

30. Ibid., 174.

31. A modern classic about literary depiction is Erich Auerbach, Mimesis: The Representation of Reality in Western Literature (Princeton, NJ: Princeton University Press, 1969); originally published as Mimesis: Dargestellte Wirklichkeit in der abendländischen Literatur (Bern: A. Francke, 1946).

32. Göran Sörbom, Mimesis and Art: Studies in the Origin and Early Development of an Aesthetic Vocabulary (Stockholm: Svenska, 1966), 19; also Lubomir Dolezel, “Mimesis and Possible Worlds,” Poetics Today 9/3 (1988), 475–496.

33. Sörbom, Mimesis and Art, 19–20; Plato, The Sophist, 266C.

34. Kendall Walton, Mimesis as Make-Believe, On the Foundations of Representational Arts (Cambridge, MA: Harvard University Press, 1990); also Kendall Walton, “Metaphor and Prop-Oriented Make-Believe,” European Journal of Philosophy 1/1 (1993), 39–57.

35. Walton, Mimesis as Make-Believe, 102; also Alan Paskow, The Paradoxes of Art, A Phenomenological Investigation (Cambridge: Cambridge University Press, 2004), 45.

36. Winnicott has famously coined the term “transitional object” to refer to early childhood prop use. To compensate for the loss of their symbiotic relation with their mother figure, young children start to develop imaginary relations with physical objects. In this way they develop a transitional area of experience in which their inner world (emotion, thought, fantasy) can relate to the outside world and yet retain some of its original, internal, magic, and safety. Later in life this transitional area is believed to correspond to, for example, artistic and religious experience; D. W. Winnicott, “Transitional Objects and Transitional Phenomena,” in Collected Papers: Through Paediatrics to Psychoanalysis (New York, NY: Basic, 1951). For a more elaborate account of the development of emotions in infancy, including a treatment of Winnicott's theory, see Martha Nussbaum, Upheavals of Thought, The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001), 174–237.

37. Walton, Mimesis as Make-Believe, 138–87; Paskow, Paradoxes of Art, 47.

38. Following Walton, we may say that participation is the more physical, action-oriented mode of playing the game, whereas appreciation is the more reflective, contemplative mode; Walton, Mimesis as Make-Believe, 224–8.

39. Ibid., 249–71.

40. Ibid., 252.

41. Ibid., 242.

42. Paskow, Paradoxes of Art, 63–7.

43. Derrida, “Force of Law,” 967.

44. Conklin, Invisible Origins of Legal Positivism, 128.

Additional information

Notes on contributors

Olaf Tans

Olaf Tans is Lecturer in Legal and Social Philosophy at Amsterdam University College. His contribution in this journal is part of a research agenda that seeks to analyse the role of fictions in the public sphere with the aid of social theory and aesthetics. More generally Olaf has published about discourse theory, constitutionalism, (deliberative) citizenship, legal reasoning and mediation. He holds a PhD in Governance Studies from the University of Twente, and Master Degrees in Philosophy of Law and Political Science from the University of Groningen.