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Legal positivists regard law as written texts enacted and disseminated to be followed as rules. But this project rests on deeply mistaken conceptions about how language works. No written text stands alone and conveys a “plain meaning.” Law is expressed through language, but language does not exhaust the meaning of the law. Legal language always already draws on the ordinary language of the community, which, in turn, draws on a deeply symbolic realm, which it can never fully subordinate or explain. Rhetoric brings the symbolic substrate to life. Legal actors constantly search for the right words to deliberate with others. There is a resonant world to embrace and experience, but it can never be fully captured, understood, or expressed in our legal texts, which hover precariously above our shared ordinary language, which, in turn, is rooted in constitutive symbols that are sustained through an endless spiral of mediation, translation, and application. Nevertheless, we may reason together in a manner that generates rhetorical knowledge even if legal positivism is a failure.
Francis J. Mootz (2024) studied this question.