Abstract
This chapter reinforces the conclusions reached in Chap. 9 about law’s being a special venue by arguing that law possesses a ritual nature, which sparks off two opposite but inseparable dimensions. On the one hand, there is a ‘nondiscursive’ dimension where ‘normative facts’ are produced, which are able to set stable standards of normality for social reality. On the other hand, there is a ‘discursive’ dimension, in which social subjects can question and revise these very same normative facts. On account of this two-dimensional structure, social subjects within the legal field can renegotiate, rephrase, and reframe their social surroundings. In this regard, these dimensions (the one conservative and the other transformative) are both opposed and deeply intertwined. The nondiscursive dimension promotes the establishment of a shared context of action – the legal field – in which social subjects are compelled to adopt a given stock of knowledge and categories, which cannot be questioned from inside the legal field. This context of action is safeguarded by its own ritual character. At the very same time, the discursive dimension permits and even prompts social subjects to question and criticise accepted social definitions, meanings, rules, roles, precisely by capitalising on the nondiscursive structure of law. The chapter also examines the notion of ritual, its role in social life, and its relationship to law.
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Notes
- 1.
See supra, 7.4.
- 2.
In the field of legal studies, few works are specifically devoted to examining the relation between ritual and law. Among them, Chase (2005), Garapon (2010), and Winn (1992). As it will become clear, my understanding of ritual and of its relation to law is quite different from theirs. Therefore, though very useful, I will not consider these works in this chapter.
- 3.
According to many, this is a straightforward dysfunction (see Danet 1980, 451–452).
- 4.
Berger and Luckmann (1967, 92) define the question of plausibility as “the subjective recognition of an overall sense ‘behind’ the situationally predominant but only partial institutionalized motives of one’s own as well as of one’s fellowmen”. In other words, it relates to a ‘horizontal’ level of integration, connected to “the total institutional order to several individuals participating in it in several roles, or to several partial institutional processes in which a single individual may participate at any given time”.
- 5.
I would briefly like to remark that the solution advanced by Berger and Luckmann is not persuasive. They contend that, once people start to lose their memory of the actual way institutions have shaped up, the production of knowledge is meant to postulate and legitimise the existence of a symbolic universe, which is presented as the source of each and every institution. In this view, knowledge is seen as a form of narrative instrumental in the legitimation of the institutional order. Such a narrative, Berger and Luckmann believe, is rather more likely to be accepted by successive generations, as they are not aware of the concrete problematic circumstances in which institutions have originally emerged. All communities develop knowledge as a set of conceptual machineries of universe-maintenance, which safeguard the borders of their symbolic universe. In my opinion, Berger and Luckmann overemphasise the legitimising role of the various systems of knowledge (more or less specialised) that they mention: mythology, theology, therapy, philosophy, and science are deemed to be nothing but gears of a complex universe-maintenance machinery. These forms of knowledge are thought of as merely designed to offer a comprehensive justification for the whole institutional order, in order for all institutions to be understood as necessary parts of a fully integrated totality.
- 6.
- 7.
- 8.
- 9.
- 10.
It is important to note, however, that this does not concern the propositional or locutionary component of ritual acts, i.e. the content of what is being said or done. Rather, the unquestionability relates to the performative one, that is, to the way it is said or done. For example, in the speech act: “This Court decrees that the decision appealed should be nullified”, the annulment is supposed to be based on arguments and proofs. The content of the decision can be criticised and revised precisely like the performative component of an ordinary speech act in normal life can be. In contrast, the performative component, “This Court decrees”, cannot be questioned as if an ordinary speaker said to another speaker “I order”. In the case of an ordinary speech act, the performative element raises a claim of rightness that can be questioned and thus must be redeemed by advancing convincing arguments. As I will say shortly, in the case of a ritual speech act, the performative element must already-and-always be accepted by the very same participation in the ritual. In a trial, participants take for granted that “The Court decrees” is an unquestionable formula meant to confirm performatively the already-and-always accepted authority of the Court.
- 11.
See supra, Chap. 3.
- 12.
- 13.
This is the label used in Croce and Salvatore (2012) in order to signify Schmitt’s institutional theory.
- 14.
See supra, 9.4.
- 15.
As Danet (1980, 498) observes, everything can be questioned with the exception of the legal frame itself: “What parties and witnesses do and say is questionable, but what those who control the dispute process do and say is not”.
- 16.
As Mather and Yngvesson (1980, 793) remark, “[t]he official legal language prescribes the general frameworks and definitions to be used in classifying events in a dispute, but the actual use of those categories will depend upon the intermediary legal specialists”.
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Croce, M. (2012). The Ritual Dimension of Law: Normality, Normativity, and Critique. In: Self-sufficiency of Law. Law and Philosophy Library, vol 99. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4298-7_10
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