Perpetually Astride Eden’s Boundaries: The Limits to the ‘Limits of Law’ and the Semiotic Inconsistency of ‘Legal Enclosures’

Abstract

AbstractLegal systems can be metaphorically taken as semantic and pragmatic enclosures. The ancient world has given us at least three literary loci that display the self-disruptive significance of this kind of metaphor if assumed as a practical guideline in the attempt to steer human experience. The first such loci can be traced in biblical Eden; the second one in the Phaeacian garden described in Homer’s Odyssey; the third in the stories of the first and second mythical Athens included in Plato’s Timaeus and Republic. In all these tales, human beings ineluctably end up straying across the semantic-spatial borders which certain categories and rules have given them to encompass their experience. All these literary loci offer both a semio-cognitive and a constitutional lesson for lawyers and sovereigns. My intention is to exploit these lessons to show that the most relevant limit of legal systems, if taken as semantic and pragmatic enclosures, consists precisely in their inability to constitutively limit themselves and their semiotic borders. This inaptitude is due, in my view, to the semiotic ‘exceedance’ of the phrastic, or descriptive parts of legal rules even more than the semantic vagueness of the values underlying their legitimacy. Any attempt to define the semantic and spatial boundaries of human experience by means of verbal enunciations implies the use of categorical schemes to define the legitimate and/or forbidden behaviors. But categorical schemes, in turn, comprise boundaries that draw protean verges between the inside and the outside of each category. The categorical ‘inside’ compellingly tends to exceed its borders so as to protrude out toward what is outside the category. In turn, the ‘outside’ shows, more often than not, continuities with the axiological/teleological patterns underpinning the semantic boundaries of legal rules. Any attempt to limit the competence/extension of law, if taken in its semantic/spatial significance, would seem to unveil what law could or should be, but is not. Relying on the above literary loci, I will try to demonstrate that this apparently contradictory implication is inherent in the dialectic between equality/universality and difference/plurality that makes up categorization itself, and thereby the semiotic prerequisites to considering any legal rule.