12/6/2014--I have been thinking about the meaning of the death of meaning. Several different kinds of formulations have been coming to me about where we are right now in our culture. Here is one that a friend has said inappropriately puts law front and center when really it is about governance.
Whatever you think is the role of law—that it resolves disputes or oversees social bonds or gives regularity to life or limits government or imagines new social/political/economic institutions—it can only accomplish that role within a setting of meaningfulness. Law is the opposite of one thing after another.
That setting of meaningfulness need not be the creation of law, nor need it be law’s role to maintain it. But law can only function within it. Law functions to translate human power out of its simple givenness. Law can thus be understood as the enterprise/discipline that renders the actions of human power meaningful.
That will be heard as law justifying power and American law has often served that role—the subordination of women was once referred as “the law of the Creator.” But the announcements that the actions of human power are discriminatory, unjust, unfair and untrue also render the actions of human power meaningful. American law has done all that too.
Law comes on the scene because human beings need a setting of meaning or we die. This need is much like the experience of volunteers in experiments suspended without sensory inputs. After a time, they start to go mad. Without inputs of meaning, human beings go politically mad, as we doing now.
Law as the enterprise that renders human force meaningful helps us to interpret numerous aspects of legal history: why the legal opinion evolved, why Lon Fuller thought legal positivism not a genuine jurisprudence, why legislatures can act, but judges must explain, and so forth.
The understanding of law set forth above helps the reader understand why I view the death of meaning in American law as a momentous event. If the death of meaning becomes dominant, as it is on its way to becoming, law becomes impossible. This article, describing the death of meaning in American law, responds to this crisis as the first part of a two-part undertaking. In the first part, we see the path law is currently on. In the second part—elements of a new jurisprudence—we consider how we might begin to turn around.