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“La langue dans le contexte juridique” by Professor Madeleine Saint Lazare ( Notre Dame de Lorette, 2002 ) is the most detailed analysis of Professor H L A Hart’s Concept of Law to have emerged from France in recent years. Hart’s work while still regarded by many as providing the most complete positivist analysis of law and legal systems and important enough to be the set book on the University of London LLB course in Jurisprudence has largely been ignored outside the Anglophone world since the 1980’s. Why had the French lost interest in Professor Hart’s Concept ?

“One had seen it as being quite anthropic. The work is relying on the assumption that the reason for our existence is to observe and describe objective social phenomena and is based always on the notion that the existence of human social life validates certain features of the physical world. More importantly perhaps, and in common with most of the positivist writers, Hart overlooked the unconscious and failed to examine the ways in which unconscious conflicts disrupt jurisprudential discourse - not by hazard - but according to particular structural regularities.”

Concept of Law is, ostensibly, devoted to a consideration of the three recurrent issues which, Hart believed, preoccupy legal theorists. These issues concerned the relationship between law and force, law and morality and the nature of rules. Professor Saint Lazare has set out to show that these ‘issues’ are in fact superficial manifestations of deeper concerns and that they are of interest only indirectly in terms of what they reveal about the collective jurisprudential unconscious.

“Frankly, these ‘recurrent ideas’ in jurisprudence are obsessions. They are symptoms of a malaise; symptoms of a failed attempt to contain or neutralise the anxiety of human experience – what Langland calls the ‘inquietude juridique’. The three recurrent issues are symbolic of the three principals, the mother, father and child, in the Oedipal drama. It is the symbolic that gives the world its meaning and its law and order. Lacan has shown us how the law is the being embodied in the 'name of the father'. and that the symbolic order exemplified by the 'name of the father' is constituting society. As Lévi-Strauss shows this is the moment of the institution of the prohibition against incest. What is interesting is that nowhere in the work does Hart address the taboo against incest nor does he, even where he discusses the minimum content of natural law, attach true significance to human fecundity and the legal control of sexuality"

It is undeniable that Hart does overlook these very important issues but why now, at the beginning of the twenty first century, is it important to reexamine his work?

“For me it is always important to look back. The elements that have led most theorists to abandon the Concept of Law are precisely those which intriqued me. I approached the work concerned to show that Hart’s anthropic imagery was symptoms of his anxiety. It appears to me that this has been overlooked by most critical theorists and, indeed, gets no more than a brief mention in Dworkin’s Taking Rights Seriously. In addition, the development of jurisprudence requires us to consider the cutural products of the past. At this moment legal philosophy in France is dominated by a concern to identify the processes through which the unconscious has revealed itself in theoretical texts and there is great uncertainty in the utility of paradigms that are not self referential. This has acquired a profound importance because of the deep pessimism that has descended since 'les attentats' of 9/11. The questions are more important now. This is not qui veut gagner des millions."

Professor Saint Lazare illustrated her thesis by reference to a couple of passages in Hart's work which she regards as exemplifying the paradoxes inherent in the work; paradoxes which are inevitable given Hart's attempt to resolve insoluble contradictions by a discourse confined within the strict limits of rationality.

’ the idea of obedience, like many other apparently simple ideas used without scrutiny, is not free from complexities’ ( Concept of Law p51 )

“ Hart treated ideas merely as means of communication and consequently ignored the role and function of 'metonyme et metaphore' in conceptualising law and legal systems Language does not serve solely to convey thoughts and information. The ‘defective’ in communication is also important. And if law were totally divorced from poetic processes then from where would the notion of ‘obedience’ emerge ? Du fond de la mer ? The unconscious is structured like a language and so too is law. The law and the unconconscious are related in form and process and thus, in its relation to the ‘concept of law’ obedience is not merely an idea but a symbol for ideas which are essentially uncontainable by the signifier. Here Hart is so wrong because the signified is never a simple idea”

But was that not precisely what Hart had set out to demonstrate ? Professor Saint Lazare doubted it.

“ Hart set out to provide answers to the three recurrent issues. I don’t believe he intended any more than that. “

In the second extract, also from Chapter 4, Hart asserts:

'For a group to have a habit it is enough that their behaviour in fact converges” ( Concept of Law p55 )'

“What is interesting here is how Hart ignores the distinction between the things to which a term refer, its denotation, and the meaning of the term, its connotation. Hart continually blurs the distinction between extension and intension. Furthermore the passage reveals that Hart never did not manage to abandon the faith in the achievement of objective human knowledge and his reliance upon reason. His thesis is constructed out of artificially sharp dichotomies – habits versus rules; primary versus secondary; legal versus pre-legal. What is more, he set out to generalise experience and as a consequence the work fails to celebrate the intrinsic irony and particularity of language and social life."

Much of what Saint Lazare says about Hart's project is undoubtedly insightful and provocative but how far may one go in analysing isolated sentences taken out of the context of a work as elaborate as The Concept of Law ? Does such an approach not inevitably distort the meaning of the extracts ? Saint Lazare confidently asserts that it is only by isolating sentences or words from a text that unconscious conflicts can be identified.

“ What is this 'context' ? Which sentences in a text are to contribute to context and which can be examined in themselves? Gestalt psychology tells us that what is context and what is relief is a question of intention. All sentences are independent. It is only when they escape from the page that we can understand their deep meaning. There is no context out of which it is illegitimate to extract a sentence. Sentences, like teeth, can be removed from their surroundings and analysed as independent entitiies. Furthermore, the unconscious is not revealed in a context but in a text, any text. Freud showed how much can be understood about the unconscious from parapraxes. I have attempted to show this same approach is fruitful when analysing works such as Concept of Law.”

Saint Lazare rejected my suggestion that there was a conflict between this attitude to context and the title of her book itself.

"I do not think it is legitimate to question the title of my book. The publishers were pressing me to tell the title - vite - and that was what I decided to call it. It is perhaps not a good idea to talk to me about this at this moment."

Anglo-saxon theorists may feel that Saint Lazare’s approach to the debate about positivism is unlikely to be influential outside France. Saint Lazare rejects that as an attempt to marginalise novel forms of critique such as hers because they have the power to subvert existing knowledge structures and believes that the unifying aspect of cultures has led to an increased interest in both commonalities and dissimilarities in theoretical discourse.

“ Human discourses occur in any number of discrete realms and, as Feyerabend and Kuhn have shown, rival theories are incommensurable if neither can be fully stated in the vocabulary of the other. None is privileged to pass judgment on the success or value of any of the others. That is sure. Je suis certaine.“

A former student of Jean Francois Lyotard at Vincennes, Saint Lazare is, understandably, dismissive of the search for objective truth.

“The search has proved futile. Like the gold at the end of the rainbow objective truth has eluded even the most committed of the traditionalists. Some found it unsupportable and Dworkin avoided anxiety by redefining what he would accept as truth !”

Dworkin has constructed his theory of the legal process by analogy with literary criticism but there is an enormous gulf between his approach and that of Saint Lazare. Whether both approaches to Hart’s Concept of Law will be regarded as of equal importance is not easy to predict but that Saint Lazare’s work is both unsettling and fascinating is beyond argument. Nonetheless the student of jurisprudence or legal theory would be well advised to seek professional academic advice before incorporating the text into their programme of study. C'est mon dernier mot.

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Links

Jean-François Lyotard: The Postmodern condition A report on knowledge ( 1979)

Cardozo School of Law: Lacan and Crime - The Jouissance of Transgression

Jean-Francois Lyotard: Peregrinations: Law, Form, Event

New ideas about the Oedipus Complex

Paul Feyerabend

Thomas Kuhn

Susan Brownell Anthony

Qui veut gagner des millions

Criminal Law Online For up to date recorded lectures, presentations and interactive online quizzes click here

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