Written and spoken words are not intended to fill a gap. Filling a gap is a crime against the gap. An empty space can have a strong message value. The empty space is the sanctuary and treasury of the unspoken, and in the unspoken lies the greatest wealth of all, of all possibilities, of genius and stupidity and ignorance.
Theoretical psychoanalysis explains that the greatest part of truth lies in what is unwritten or unspoken. The political theory explains that silence and passivity can be the loudest civil protest. What about the law?
And poetry…, for example. To insert a word somewhere in poetry, just to alleviate a person’s ignorance, incompetence, lack of talent, or a feeling of vanity, presumption… to think that you can do what you want with words, because the words are your own, and your plan is to classify words and describe concepts… To handle words in such a way… Isn’t that an excess of expressive primitiveness?
Speaking, even writing, is the creation of music, rhythm, melody – with words. Just as every musical instrument has its own colour of voice, so every phonetic producer of words has its own colour of voice. Even in writing, words are coloured according to the character of the word producer. In literature. In poetry. Is that right? What about in LAW?
In poetry, words and even just letters must have the character of little goddesses. In poetry, a single word can replace a scientific discussion, a discovery, a treatise. The combination of words opens up the human mental cosmos of dreams and revelations, which requires megalomaniacal discussions in prose. Poetry is mental climbing on a steep face where every movement must be thought through and recalculated to perfect accuracy. Mistakes give birth to stupidity in doing and falling into the depths. In a vertical wall you cannot fly with your hands, let your limbs bounce in all directions and step into emptiness.
In poetry. There one must fear every word. One must be in awe of the words. One must not misuse them for meaninglessness, for simply being there where the space is still empty, even if they say nothing; not to you, not to the reader-addressee. In poetry, the word must be the concentrated energy of an inner, almost cosmic message. In poetry, the word must be protected from external abuse, ridicule and harmful ambiguity, if ambiguity is not provided for in writing.
Is this correct? Shouldn’t it be the same with the LAW? Shouldn’t the LAW be the result of the same attitude towards “words and sentences”? And thinking? Shouldn’t the LAW be approached with this kind of philosophy?
In poetry, the last words in a line, rhymed or unrhymed, are particularly sensitive. There must be no violent pairing of words, the search for rhyme only because of the sound of the last words; sound and meaning must be convincingly coordinated. Conceptual, content-related inconsistency of a word with forced rhyme, pure “word and word combination” content leads to numbness. Words should be authentically written as a kind of symphony: before, in the middle and after each word, each sentence.
Poetry is a score. If a composer imposed notes according to rules of sound in a way that only he/she would understand, there would be a chaos of sound … What some people (“creators”) do. Even in poetry. But it is a pity for a reasonable person to confuse himself and art.
Is that right?
In prose, you can write a few sentences, even a few passages of text, which inspire you to get involved with the essential things one wants to reveal on a particular page. Also, or above all in LAW, regardless of its orthodoxy.
In poetry, this is not possible. Poetry must be composed from beginning to end – the essence. The fewer words, the more solid and convincing the essence must be. The more there is in the poetry of words, the more there is denominational and manual writing insecurity, the violent filling of the Shrine of emptiness.
But what do lawyers do with the LAW and in the LAW?
The great Slovenian poet, Tone Pavček, once said that his best poetry pieces (songs) are undoubtedly those he never wrote.
Which legal texts are the best? Those that are written carefully and understandably, where every word has a certain meaning and every sentence is understandable to the average citizen. Without thoughtful, deliberate ambiguities, mutual contradictions and without semantic looseness.
Is it true that LAW cannot be poetry? No, that is not true. It is quite the opposite. And in this respect, towards “words and sentences (paragraphs)”, LAW should be POETRY.
Would anyone argue that LAW should not even strive to be more like poetry? I would strongly disagree with him/her.
Once a respected professor, who later became a member of the Slovenian Academy of Sciences and Arts, and who harassed and humiliated me before, in between and after at the faculty I had to leave after defending my doctoral thesis, told me, or asked me: “Dear young colleagues, your legal writings are too essayistic and literary.” For my taste – I could not praise myself anymore. For there is no greater satisfaction than the friendly praise of the students that you, as a professor, are understandable, interesting and open-hearted, sovereign in knowledge and determined in criticism. While choosing the words carefully, striving to be easily understandable and dramaturgically interesting at the same time. I feel similar satisfaction and gratitude in the comments of the general public when I am addressed with gratitude and praise that I succeed in explaining difficult legal issues to the public in an understandable way.
Yes, poetry must be real, genuine. In this respect, the LAW should strive for poetics. Only in this way can the law be (because it should be) the language of the heart, the way to the other, forgiving communication and coexistence with other people, the bond of man as a person with other people as persons. In the function of guaranteeing freedom, fundamental human rights and protecting everyone’s dignity – as a person. In the function of creating a “democratic community”: a community according to Aristotle, which is much more than merely “a society”.
Yes, poetry is a real thing. So should be the LAW. And in my first book of poetics, there is a lot of LAW. Behind the written text, behind the words, behind the sentences, behind the sound, in that vast space that allows the reader to hear, see and feel – whatever it is there. Because there is something. But the framework of what it is must always be Love. For a fellow human being. Forgiving and lovingly path to (in the psychoanalytical sense) the Other. In the function of Humanity.
Andraž Teršek, Ph.D., Professor of Constitutional Law, University of Primorska (Koper) and Inštitut Ustavnik – Pravni inštitut dr. Andraža Terška (Institute Constitutionalist – Law Institute of dr. Andraž Teršek).