«Living» Law: Performative, Not Discursive

This article questions some assumptions in legal, moral and political theory regarding the law’s ways of functioning. As the constant revival of the topos ‘living law’ shows, underlying common models of law, and of the legitimacy of law, is, though often implicitly, the view that law is or should be particular, near to the facts, flexible, susceptible to realities, and as a consequence accessible to modernisations. However, this article proposes an immanent critique of similar hopes or fears, and it argues that modern positive law can not be responsive to any other ‘order’ or context because it constitutes an order of its own. The article seeks to give an explanation of the specific character and forms of the juridical operating and to explain more specifically how decisions are produced. The article in this regard also investigates the importance and role of imagination, fiction and performativity. Underlining the fact that the juridical exceeds legal propositions by asserting itself as a distinct form of social communication, it calls for a shift from the representational to the performative analysis in the study of law.