Finding cover: Legal trauma and how to take care of it |
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Authors: | van Oenen Gijs |
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Institution: | (1) Department of Philosophy, Erasmus University Rotterdam, 3000 DR Rotterdam, The Netherlands |
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Abstract: | As law originates in violence, it is always haunted by its constitutive trauma. Recourse to law's origin, which is implicitly
or explicitly sought in (constitutional) adjudication, thus requires a way to deal with law's trauma. What is needed is a
cover, to be provided through (legal) interpretation. Four such interpretive ‘cover up’ operations, all necessarily somewhat
duplicitous, are discussed. The first three represent main currents in legal theory. First, the standard legal view, which
denies the trauma but relies on traditional authority to cover it. Second, a ‘neurotic’ solution, in which trauma is also
denied but nevertheless cover is produced through collective interpretation. In the third, ‘perverse’ solution, trauma is
admitted, and even enjoyed; on the other hand, it is denied that cover can be produced by any interpretive authority. The
fourth option provides an alternative: recognition of law's trauma, covering it through the collectively shared practice of
interpretation. It is shown that an example of such a collective effort can be found in the Dutch practice of gedogen, the deliberate under-enforcement of law, which is capable of creating an ‘informal rule of law’ that deals with intractable
social problems more successfully than attempts formally to enforce applicable law.
This revised version was published online in November 2006 with corrections to the Cover Date. |
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Keywords: | constitutional interpretation Dworkin fish gedogen law Ž iž ek |
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