6 - Exemplarity as Concreteness, or the Challenge of Institutionalising a Productive Circle between Past and Present, Old and New

Summary

In a limit-situation such as our own, involving the paradoxical challenges of homogenising globalisation and self-celebrating plurality (if not incommensurability), the reinvention of juridically specifi c exemplarity – or the possibility of giving this exemplarity an unmistakable place in legal adjudication – confronts legal discourse(s) with decisive borderline issues. On the one hand, an autonomous reinvention of exemplarity seems incompatible with a representation of the problem-controversy which, invoking the constraint of ‘formal justice’, imposes the methodological priority of universal rulings (MacCormick) on jurisdiction as reasoning and, with this, a normativistic (purely deontological) modus for conceiving of (juridically plausible) arguments of universality or universalisability. On the other hand, an autonomous reinvention of exemplarity seems irreconcilable with an experience of the problemcontroversy which – interpreting the claim to comparability (and the intelligibility of a tertium comparationis) as an inescapable exercise in constative synchronising violence (Douzinas) – admits recreating the case-event as a manifestation of pure, unconditional singularity, thus allowing an ethical-aesthetic narrative reading.

This chapter aims to reconstitute these contrary challenges whilst explicitly considering a certain law, signifi cantly inscribed in the possibilities of the Western Text (and as such presented as a cultural artefact, if not as an institutionalised way of life). The chosen path involves three indispensable steps: (1) to consider the incompatibility between an autonomous treatment of exemplarity and the assimilation of the legacy of formalism (even when this assimilation is signifi cantly moderate); (2) to clarify the impossibility of reconciling exemplarity and singularity, considered from the perspective of a deconstructive narrative reading; and (3) to introduce the connection between exemplarity and concreteness and to discuss this connection whilst focusing on the institutionalisation of a reciprocally constitutive intertwinement between dogmatic stabilising and problem-solving practices.

1. THE FORMALIST-NORMATIVIST PATH AS AN ELOQUENT RENOUNCEMENT OF EXEMPLARITY

It is probably unnecessary to insist on the disintegration of the problemcontroversy (or its methodological priority) – as a rejection of an autonomously rational experience of praxis and phronesis – imposed by the modern shift to normativism (from the early seventeenth century onwards). However, a few words seem relevant, if only to recall the dynamic peak of this disintegration – the nineteenth-century prescriptive construction of Legal Method – whilst signifi cantly considering how this deliberate constructive (and more or less consciously assumed) project inspired two paradigmatic parallel answers – one established by Langdell's alleged formalism and the other due to Conceptual Jurisprudence's naturhistorische Methode – and these as parallel responses to unmistakably different institutional environments.