by Jesús R. Velasco
Welcome to Foucault 9/13
“You only need to look at the language.” This is what representative Mike Johnson from Louisiana responded to NPR newscaster Dave Mattingly when the latter asked him whether Trump’s executive order was not a Muslim ban —he did not add de facto. “It’s based on geography, it does not single out a religion.” Then, said representative went on to state that many other muslim countries were left out of the order. “What about the intent?”, Mattingly asked. “Well, you cannot judge intent based on what Rudy Giuliani said in an interview.”
Just look at the language.
This is exactly what is in the mind of originalists. Scalia described the method of originalism in the book, Reading the Law: The Interpretation of Legal Texts (2012) –a method the authors of the book, Scalia himself and American lexicographer Bryan Garner, called textualism. This method can be understood as a way to say that “il n’y a pas de hors texte” in order to protect the autonomy of the legal discipline, as well as the disciplinary autopoetics of the legal system –theorized by Niklas Luhmann in his Law as a Social System.
Textualism and originalism conform very well to the mechanisms of linguistic recurrence at both syntagmatic and paradigmatic levels that Roman Jakobson had characterized as proper of the poetic function. And this is quite enlightening: textualism and originalism can be conceptualized as a projection of the poetic function –that is, the function of text that works under the premise of a system of creativity whose rules of both fabrication and interpretation reside within itself. Within the epistemological terms of the poetic function, the text is the system of signs itself.
According to originalism, the narrative of the legal case is the process of selection of combination of a closed text, profoundly self-referencial, whose interpretation takes place within its own linguistic boundaries created by norms and statutes. Although it may be capillarized across the jurisprudential archive, there is such thing as the black letter, the system of signs that can be defined in lexicography, but that, in fact, do not need to be defined, as they are primary concepts. At its turn, all this textual system only obtains legal life insofar in its ultimate relationship with the original text —the Constitution, which is the fons et origo of the signifiers, of the formal aspect of the legal word. Those words do not refer to historical things or to things that can be historicized –these words only refer to themselves and to their syntagmatic and paradigmatic order.
But, how can you actually look at the language and not become amazed at the way in which interpretations and hermeneutical cycles pile up on top of each piece of given language? Language is —Foucault says— already interpretation. Let me quote this passage from “Nietzsche, Marx, Freud”:
“[Nietzsche says that] words have always been invented by the ruling classes; they do not denote a signified, they impose an interpretation. Consequently, it is not because there are primary and enigmatic signs that we are now dedicated to the task of interpreting but because there are interpretations, because there is always the great tissue of violent interpretations beneath everything that speaks. It is for this reason that there are signs, signs that prescribe to us the interpretation of other interpretation, that enjoin us to overturn them as signs. In this sense one can say that allegory and huponoia [cf. p. 269] are at the bottom of language and before it, not just what slipped after the fact from beneath words in order to displace them and make them vibrate but what gave birth to words, what makes them glitter with a luster that is never fixed. This is also why the interpreter, for Nietzsche, is the ‘authentic one’; he is the ‘true one’, not just because he seizes a sleeping truth in order to proclaim it but because he pronounces the interpretation that all truth functions to cover up.” (276)
Truth is the production intending to cover up the existence of an interpretation, by pointing to one fact –maybe by creating a fact, and we cannot forget that historically, legislations do not only create fictions, they also create facts, and, as Clifford Ando has demonstrated, they do it in the third-person imperative. Truth as a cover-up of interpretations, as the production of primary statements that constitute a logical world, a possible world, in the terms of modal logic, seems like a path to explore further in this moment in which we are clearly witnessing the transformation of the relationship between production of truth and existence of facts.
At the beginning of “Nietzsche, Genealogy, History”, Foucault explains that, in effect, Paul Ree had been wrong in his approach to morals, because “he assumed that words had kept their meaning, that desires still pointed in a single direction, and that ideas retained their logic; and he ignored the fact that the world of speech and desires has known invasions, struggles, plundering, disguises, ploys.” (369)
In this same text, Foucault learns with Nietzsche that “History also teaches us how to laugh at the solemnities of the origin. The lofty origin is not more than ‘a metaphysical extension which arises from the belief that things are most precious and essential at the moment of birth.’”, And Foucault continues: “The final postulate of the origin is… : it would be the site of truth.” (372)These are myths and fables that belong in speech. The origin is only a fable of essence, while, as Foucault puts it, “history is the concrete body of becoming; with its moments of intensity, its lapses, its extended periods of feverish agitation, its fainting spells; and only a metaphysician would seek its soul in the distant ideality of the origin.” (373) Repeating, or trying to repeat the fable of origins, the moment of origination, or the moment of emergence —going back to a moment when things were great— gives rise to the first modality of history, which is farcical and parodic, in which (and of course we can here read Marx’s Eitghteenth Brumary— historians see the present in disguise, all dressed up as the past. When was it that the country was perfect in its original truth and identity? Let us find out its language and its clothing, and consider them as primary signs, as manifestations of truth, as the moment where the original continuity was first established, getting rid of the discontinuities caused by interpretations, by the changes of orientation of desire, by the transformations taking place in the logic of ideas.
Foucault read, with Nietzsche, that there was a revolution to make —and that at least in part this revolution was a revolt questioning the fables of the origins and the fable that there are signs that have been troubled by interpretations, but that at the beginning there were signs. As Foucault puts it in his lesson on Nietzsche, knowledge does not have an origin; instead, it has a history —because, like truth, it is the product of invention. Truth was invented as well, but later.
If I began this short introduction with the words of present day representatives and a recently dead SCOTUS to be replaced by another originalist, it is because we are maybe facing the fierce enmity between hermeneutics and semiology that Foucault talks about. Semiology is the ultimate act of violence that we would like to submit to critique, to historicize, whose violent character we would like to unveil. As always in this seminar we do not intend to do history of philosophy, like the influence of Nietzsche on Foucault, or whether the latter understood or misunderstood the former. We would like to do our critical work in a permanent becoming.
And for this purpose, we have today three voices that make this session not only an intellectually memorable one —but also a celebration of friendship. I must say that I like that, as I don’t believe I could think or be intellectually provoked without this celebration of friendship, one that also permeates the room, full of people with whom we have been keeping a long conversation ever since François brought from Paris the first copies of the recently published edition Foucault’s Théories et Institutions Pénales, edited by Bernard and François, back in May 2015.
 This book is, by no means, the only one authored by Scalia and Garner. They had published together: Scalia, Antonin, and Bryan A. Garner. Making Your Case: The Art of Persuading Judges. St. Paul, Minn: Thomson West, 2008. In addition to that, originalism was described and powerfully defended in Scalia, Antonin, and Amy Gutman. A Matter of Interpretation: Federal Courts and the Law : an Essay. Princeton, N.J: Princeton University Press, 1998 (and recently reedited in 2016). Bryan Garner, very well known as a lexicographer (David Foster Wallace considered that the way in which Garner manages the “issues of rhetoric and ideology and style” in his A Dictionary of Modern American Usage of 1998 was a work of genius): Garner, Bryan A. A Dictionary of Modern American Usage. New York: Oxford University Press, 1998. David Foster Wallace, location 907 of Consider the lobster. Cf. Korb, Scott. “Words Mean Things.” Slate 3 Aug. 2012. Garner also wrote a legal dictionary: Garner, Bryan A. A Dictionary of Modern Legal Usage. New York: Oxford University Press. He is, finally, the author of a work that I could only qualify as a work of fiction: Garner, Bryan A. Legal Writing in Plain English: A Text with Exercises. Chicago: University of Chicago Press, 2013. The defenses of originalism contained in Scalia & Garner have received important critiques, but nothing as powerful as Posner, Richard A. “The Incoherence of Antonin Scalia.” The New Republic 24 Aug. 2012. The medievalist in me cannot but perceive the marvelous irony in the history of this idea that a textualist approach is a source of incoherence. Indeed, “The Incoherence of Antonin Scalia” evokes another title, or, to be more exact, two different titles. In them, their authors discussed the terms of interpretation of the law. whether it was based on the legal sources alone, or whether such interpretation should recognize the presence of narrative and tropological elements within the law that required not only a knowledge of legal sources and legal science, but also a philosophical approach. This discussion took place between the 9th and the 12th centuries, and beyond. Two central titles of this debate were The Incoherence of the Philosophers, by Al-Ghazali, and, Ibn Rushd’s response to Al-Ghazali, The Incoherence of the Incoherence.
 In 1986, seven years before the publication of Luhmann’s book in German (Das Recht Der Gesseslschaft, Frankfurt: Surhkamp, 1993), Pierre Bourdieu proposed a sound critique of the Law as an autonomous discipline with auto poetic characteristics in his article “La force du droit.” Actes de la recherche en sciences sociales 64, no. 1 (1986): 3-19.
 Jakobson, Linguistics and Poetics. “The poetic function projects the principle of equivalence from the axis of selection into the axis of combination.”
 “Fact, fiction and social reality in Roman law.” In Maksymilian del Mar and William Twining, eds., Legal Fictions in Theory and Practice, Boston: Springer, 2015. 295-323. Cf. specially p. 305 ff.