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At the invitation of my publisher I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights. As I prepare the4 manuscript for publication, I will share large portions of the draft. The object is to share my initial thoughts and to seek feedback by those interested.
For this Part 2 considers what will be a part of Chapter 1 of the Commentary, an exploration of "The Meaning of Text and the Performative Politics of Commentary." The term “Commentary” is so ubiquitous, and now ancient in advanced societies that it is easy to neglect the challenges and ambiguities often veiled by its symbolic rendering as text. Sometimes lost in these structural social relations are its object—text situated in place and time. Here text may be understood broadly as any authoritative or socially important expression around which guidance appears to serve a positive purpose. While it is tempting to focus on its consequences, the challenges of text for producing explanation, analysis deserves sustained attention. In that respect it is useful to consider text based, intent based, and application based explanation/analysis models. These consideration play a significant role in determining the task of the commentator and the object of commentary.
The text of this section follows. The first cut of the daft of Chapter 1 may be accessed here: Backer_UNGP_Chp_1 .
The Meaning of Text and the Performative Politics of Commentary
In pricipio erat Verbum, et verbum erat apud Deum, et Deus erat Verbum.Hoc erat in principio apud Deum. Omnia per ipsum facta sunt; at sine ipso factum est nihil, quod factum est.[1]
The term “Commentary” is so ubiquitous, and now ancient in advanced societies that it is easy to neglect the challenges and ambiguities often veiled by its symbolic rendering as text. Turning again to etymology, the term in the principal languages originating in modern form in Europe hep reveal some of that ambiguity and challenge. The focus is on explanation of obscure and difficult passages in text that may be culturally important, religious fixed and eternal, or otherwise authoritative as a source for the justification of the organization of social relations, but that acquires its own methodological structures, sometimes as important as the object of commentary.[2] It can serve to augment explanation and curate application and understanding by those responsible either for the creation or the protection of the integrity of the text for which commentary appears necessary. That also suggests an educational role—targeting those who must explain or apply these texts or practices to others. In this sense commentary augments collective solidarity through guidance by a vanguard or elite invested with a special relation to text.[3] In its most positive form, it can represent “an organic synthesis of the essential and fundamental contents” of doctrine, written and oral.[4] Yet it can also serve the opposite purpose—to expose and resist orthodoxies deepened through the commentary of groups devoted to the protection of a specific way of approaching text, its meaning, and the principles through which textual analysis and application may be approached.[5]
Sometimes lost in these structural social relations are its object—text situated in place and time. Here text may be understood broadly as any authoritative or socially important expression around which guidance appears to serve a positive purpose. Commentary cannot escape the tightly woven territories within which text is confined, whatever the commentator’s pretensions to politics, cultural manifestations, or instrumentalization. Commentary navigates most soundly within the kingdom of text; it can meander elsewhere but then it changes its character—to polemic, program, re-education, and the like, for the greater glory of those whose collar the commentary wears.[6] While it is tempting to focus on its consequences, the challenges of text for producing explanation, analysis deserves sustained attention. Text presents its own constellations of difficult questions, questions the resolution of which colors not just the analysis/explanation but also exposes the fundamental premises from which commentary is approached. Simple tasks—identifying obscurity requiring explanation, choosing the basis on which to frame explanation/analysis (word, phrase, etc.), and investing the symbolic directions for reading text (punctuation, grammatical rules)—become applied manifestations of presuppositions that themselves may reveal an underlying lens that in turn reflects choices about the way the world is rationalized (to the exclusion of others). Likewise the determinant of the choices of emphasis—text or intent—are themselves the end product (rather than the beginning) of the application of presumptions about the nature of text, the basis of its authority and the identification of the sources of that authority. The determination that text speaks for itself, or that text merely serves as a snapshot of the intent and objectives of those invested with the authority to produce authoritative expressions of intent and objectives changes the lens of explanation and analysis. More difficult, but in contemporary commentary more prevalent, is the premise that both text, or the intent or desired effects it may have memorialized, may be less relevant that the uses to which the community into which it is projected puts it. Thus it is not either text or objectives, but application that matters for commentary. But like commentary that privileges either text or intent, applications privileging commentary is also locked in time. It can suggest only the contours of application through the time of publication and thus becomes irrelevant with the passage of time, since the power of this commentary depends on its temporal currency.
The choices have important consequences. Text based explanations are grounded in the notion of the separation of collective acts (people) from the expression of their collective actions (which for the preservation of the integrity of the system of social relations) must be detached from the living individuals who produced it. This is an ideology that guards against abuse of discretion and the arbitrary in human relations by making text exogenous to those who produce it. Nonetheless, it is an approach that becomes deeply mired in the challenges of language and linguistics, and especially its fluidity and indeterminacy other than as acts of collective power.[7] Intent based explanations/analysis ae grounded in the premise that textual autonomy is impossible but must be grounded in the context and social relations within which it is produced. And thus text is a gateway bridging the exercise of authority and its temporal application from the moment of creation onward. This is an ideology that reflects the vertically ordered hierarchical structures of authority that presumes authority flows down. Application based explanation effectively displaces the primacy of text as autonomous or of the creator as controlling in favor of the notion that both text and intent are merely the static starting points for the dynamic process of dynamic interaction between text/authority and the population into which it is projected. What animates text and intent are its use. Text and intent are inanimate (or in the language of critical scholars, radically indeterminate and thus legitimacy threatening);[8] the only power they have is to move others to act. This is a bottom up ideology of social relations; if text is the clay that molds the body of an object created for a purpose, then that clay and purpose become animated (ensouled) by through the breath of application. And yet the great fear—that application will be monstrous, and unguided, text and intent will be obliterated.[9]
A. Words and Commentary.
The ordinariness of meaning. It has long been a mainstay of interpretation, especially among jurists, and among those even more passionately embraced by those emerging from the traditions that can be called “common law,” that words ought to be given their ordinary meaning.[10] Indeed, the good doctors of jurisprudence, especially in the United States and then from there among those who admire this sort of approach, have devoted themselves not merely to the gospel of ordinariness, at least when it comes to meaning, but also to the business of preaching or teaching the “word.”[11] They, in turn, stand on the shoulders of giants, who built a special room for legal hermeneutics and interpretation within the mansions of hermeneutics, cognition, and the construction of knowledge.[12]
The goals are worthy. Its importance is substantial enough to induce generations of students of legal semiotics to indulge, without irony, in its study.[13] While for jurisprudence, the object is both “pure” (to capture the singular or best or plausible essence of meaning of a word) and practical (in a power-business sense) to “sell” meaning to those organs of state and market that might then by operation of their own functions in society, impose that meaning on the collectives over which they exercise some measure of authority. One cannot detach the ordinariness of meaning from the power to compel (public and political) or induce (private, cultural, economic) adherence in collective life. And that brings one back to the word. “So there must be a close connection between law and society, between language and legal discourse. Before everyday language can compose this expressivity, it needs the ‘word’ as its ultimate building block in language.”[14]
Taking a broader view, whatever the quantum of effort, and however important the stakes, this effort might be supposed to amount to nothing more than a great feat of jurisprudential bathos, though a critically important one for the operation of a collective within its time.[15] Nor is it even a particularly subtle and complicated insight derived in essence from theories of communication, that is the way that grunts and scratching can be commonly decoded by a group trained in that art. Nor further still, does the insight jar among those who worry about the alignment of symbol (text) or performance (utterance, including inflexion) in the construction of predictable and imitable invocation (text and performance) or response (reading and hearing).[16] One operates in the field of social relations always in the service of the ordinary; the essence of Commentary might then be well situated within the ordinary project extraction of meaning, plain meaning, from words, or their performance in speech or in action. One performs text as commentary, and yet commentary (or the treatises into which they may be embedded) is not merely the performance of text but the script through which commentary is performed.[17] And that brings one back to the word in its broadest sense: In principio erat Verbum.
In that insight lies contradiction—and the great challenge for Commentary. The more tightly one holds to the idea that a word has a plain meaning, that the word incarnates the ‘ordinary,’ the more difficult it is to grasp that meaning in fact-- et Deus erat Verbum . This is the problem of the word, what in ancient Chinese rhetoric touches on the issue of ming-ming (明名intelligent naming).[18] And what in the Judeo-Christian tradition touches on the intimate connection between creation and naming.[19] Intelligent naming, and the connection between creation and identification, sets the fundamental template—the eternal in the semiotics of religion. Meaning, even in its ordinary senses—“is not a thing.”[20] It is instead better appreciated as the product of symbols that encode instructions for perception that is in constant motion as it is shared among community of encoders. Put differently, the problem of the word, and the language built around it, is that it is an object the value of which is derived from the production and consumption of meaning that serves the community of meaning producers and users—that is as an object of language platforms.
That, in turn, embeds a number of instabilities. First there is the matter of time. People die, societies change, and with that death and those changes, the words that may have been plainly meaningful in one way at one time and among a generational cohort of people may lose both plainness and meaning. The famous example of the meaning of the term “commerce” for purposes of the US Constitution, or for that matter the lain meaning of equality in a society in which when it was first proffered females virtually no political and limited economic rights, while others, mainly people of African descent were enslaved. Second is the matter of technology. Technology changes society. Those changes must be built into the language and communication of that society and its structures of operation and power. Those changes are sometimes built into the language society uses. For example. the meaning of Copy and paste in the age of the word processor is quite different than at the of the founding of the American or the French Republics, or even of the People’s Republic of China. The third is the matter of migration. People bring all sorts of baggage with them when they migrate. Among this baggage is their language. European languages are filled with examples of substantial changes in vocabulary, meaning and usage during periods of great migrations—for example the waives of migrations of Angles, Saxons, Norman French, Danes and others into the United Kingdom is one example. Changes here are subtle and sometimes suggest the ways that people seeking to learn a hist language change it in the process. This pattern continues today. The fourth is the matter of linguistic functional differentiation among same language speakers. In the English speaking world it is something of a cliché to suggest that lawyers speak a different language than others; but the same applies to other fields. Terms of art are as much a part of the world of business and they are a part of the world of law, science, religion, and other sib communities with their own argot. Plain meaning here becomes a meadow held together only by proximity and pollination (sometimes). The fifth is the matter of engineering. From the time of the Enlightenment, human society, first in Europe, and then virtually everywhere, embraced the notion of perfection. This perfection was not understood in its previous version bound up in the language and sensibilities of religion. Rather it was bound up in the rationalization of the human, its measurement, and ultimately its expression as an ideal to which those in control of social forces could nudge the masses under their charge. This fundamental shift in the understanding of humanity at the center of itself required a vocabulary, and to that ends old words could be repurposed. Consider as an example the transformation of words like accountability and accounting. The sixth is the matter of translation. Societies borrow words, even as they borrow customs, practices, and sometimes sensibilities. Globally connected societies borrow more aggressively. And borrowing can become a matter of state policy. Even when one is not borrowing, one is encountering other collectives whose language and usage—whose text—requires some form of translation. The free movement of goods, capital, and investment has made that inevitable. Common language sometimes sacrifices older specific meaning in the service of new context. The seventh is the matter of the extra-ordinary. To insist on an ordinary meaning also admits to the possibility of the extra-ordinary—the specialized language of a community. Lawyers are masters of the construction of language as its own homonym—built on words that sound and are spelled the same as words in their ordinary sense, but which acquire a distinct meaning. This is the world of terms of art, and of the production of specialized knowledge, and the power relations that follow.
And thus the reason for this con-textualization of text and its plain meaning is to serve as one of a series of caveats to the commentary that is to follow. It is offered by way of explanation of the reason the Commentary will not indulge in the usual practice of those who wear the collar of their profession and their status as elites with an obligation to conform to class orthodoxy (the power of the plain) and on that basis to proffer the best or only or most logical or most correct way of extracting the ordinariness of the meaning of the word around which it is necessary to comment—and here one encounters obliviousness to the ironic contradiction of the ordinariness of meaning. Put differently, in the words of Michel Foucault—to make oneself, and this Commentary “acceptable.”[21] Very little that is plainly evident—and especially words—require mountains of other words to ensure the proper construction, understanding and use of the all too ordinary test that is its object. The exception—where it is necessary to protect the ordinary either from the extraordinary or form capture by ithers whose sense of the ordinary is indeed quite distinct from that being defended. The extraction of meaning, then, to reinforce the sub-text of the last few paragraphs, is intrinsically political.
The task of the Commentator. In the face of this, it seems clear that the Commentator faces an initial choice. The conventional approach is to use the commentary to extract what the Commentator will suggest is the true or best meaning of text. This is an important exercise, to be sure. But it is a political one that increases the value of the Commentary by fashioning it into an instrument that ca be utilized by those who favor that interpretation and meant to use it in their battle for control of the ordinary meaning of a term. In a field the core approaches to which are neither plain or stable, such an approach has great value and is likely the better political choice. That “better” political choice is augmented if the Commentary can also cement or advance the status or position of the Commentator within the meaning making community of which they are a member. One is, in effect rewarded for being loyal to one’s intellectual caste.[22] The act of glossing is then made an instrument that is not attached to the text but rather to the meaning community that sees in such text (and its glossing) a meaning of advancing its world rationalizing project.
The alternative approach is to seek to define the limits within which it is plausible to extract some form of ordinary meaning from the text. To that end, a Commentary might serve a higher purpose not by arguing for the value of one ordinary (or extra-ordinary) meaning over another, but rather to consider the extent of the range of plausible ordinary meanings—or perhaps extraordinary meaning—that may be identified. It is in the construction of that field of plausibility that a number of additional issues arise that also affect both the interpretive process and the character of the challenge the Commentator faces.
B. Words in Con-Text
Though important to the task of the Commentator—and more so to the function of hermeneutics, linguistic and legal-cultural cohesion aligned with a worldview around which a social reality is ordered and preserved—word meaning is not at the center of the task of extracting meaning from text. Words, like other symbols, acquire meaning not merely in themselves, but in the context in which they are placed. That is, whether or not their meaning is ordinary, the meaning of words is derived not only in itself but from the words around it. At a greater level of generality, it acquires meaning from the self-contained environment of text which is meant to serve as a sort of autonomous meaning field: a phrase, a sentence, a paragraph, a section, the larger section within which it is embedded, and so on.
Why state the obvious? Because the obvious hides sometimes its own directional symbols: the meaning of words in context may be managed by other meaning rules: the rules of syntax (and its violation, rules of grammar and usage, the power of symbols in written text (periods, semi-colons, etc.), or pauses and inflection in speech, and the like. Word meaning exists not merely in the context of the words around it, but also in the context of the symbols that are used to rationalize and support the interrelationship of words aggregated together and meant to be read as part of a larger set or sets of wholes. One moves from word to language. And in the context of the UNGP, from general and popular language to the rarified language of an international community seeking to develop normative frameworks in a highly specialized field. One contends not merely with vocabulary and syntax, but with the language through which it may be expressed.
Yet here one encounters another problem. There is no ordinary meaning rule for reading clusters of words together; far less for reading words embedded in a larger and more complex text. One way to extract a range of meaning where its object is to consider the meaning of multiple words that are meant to have a relationship to each other is a formal one: to apply the rules of grammar, syntax, and punctuation to the word clusters and to give them the meaning that the application of such rules suggests—the ordinary meaning rule applied in a different terrain. Or one could, by discerning deviation from those rules, extract a meaning grounded in what appears to be an intentional effect to avoid the rules to a different meaning ends. In that context one can judge whether one penalizes inadvertent breaches of such rules (the traditional judicial rule that one reads a contract against its drafter), or otherwise indulge in rewriting (effectively forgiving transgression). Alternatively, one could look to other similar word projects for insights to be applied by analogy. Courts tend the approach the readings of similar statutes in the same way. Common law courts tend to use a number of techniques to rationalize and as a shorthand for unity of meaning or approach in similar circumstances; stare decisis as one of them. The notion of predictability is deeply built into language and the practice of the judiciary. Yet the determination of the boundaries between those circumstances in which application of meaning rules is warranted and when to avoid these rules then produce a set of meta or overarching grammars of extracting meaning from words in their textual context.
At its outer boundaries, context presents the challenge of objectification of a different sort. It is sometimes possible to detach the idea of the body of text that is the subject of commentary from the text itself. In the case of the UNGPs, for example, the idea of the UNGPs as a whole becomes as important as the substance of its text. In this case the UNGP are objectified in ways in which it is no longer essential to understand how it works or even its three pillar structures. The UNGP stands for something else--as a project, as a process, as a set of aspirations, and the like. It is in some sense a fetish—a sign that signifies something else. And it is this “something else” that may be invoked by those who apply the UNGPs in this way. A commentary of the objectified UNGP , as distinct from a commentary of the UNGP, is an important additional context from which meaning and application may be extracted.
The task of the Commentator. Commentary can fight against rules in the search for interpretive or explanatory purity. Or commentary can embrace them and add its own voice to the mellifluous polyphony of orthodoxy. However, all such efforts reveal more about the commentator than about the object of commentary. For strategic commentary it follows that either position (or anything in between that serves the purpose of the commentator) will do as long as one is content to understand commentary as an instrument serving a purpose beyond explanation or analysis. That is perfectly respectable. Its weakness is the temptation to pretend that what is instrument is universal, undisputed, inevitable, and incapable of objection. Yet that is precisely the foundation of orthodoxy (whether of vanguards in or with power or those seeking their displacement). Again, striving toward the boundaries of plausibility serves the larger objective of a commentary that means to outlast the fickle obsession with orthodoxies which in contemporary social relations hardly last long enough to merit documentation.
C. Intent and Effect
Do words and the text in which it is embedded have any meaning at all in themselves? If text or words are merely symbols—then they represent something other than selves. They are a picture, on object, a memory, a recording, of the intention of those who had the authority to not merely choose these words, but (through some process that accords with the practices and habits of a culture) to make them authoritative. If that is the case, then are words (text) merely pass through for the intention, meaning, objectives, principles, world views, and approaches of those who were responsible for their use or those for had the authority to give the words power. Here one encounters ordinary meaning in the experiences that are held in common and reduced to word.
What, in the end, is [common]? Words are vocal symbols for ideas; ideas, however, are more or less definite mental symbols for frequently returning and concurring sensations, for groups of sensations. It is not sufficient to use the same words in order to understand one another: we must also employ the same words for the same kind of internal experiences, we must in the end have experiences in common.[23]
In the field of law—hard or soft—the issue is usually framed as the context between text and intent. On the one hand, one can take the position that words speak for themselves. That is that what was made authoritative were the words, and nothing else. Whatever intent was meant to be inserted into those words would have had to have been accomplished by aggregating enough words to make the intent plain enough to discern from the ordinary meaning of the words used to those ends. On the other hand, it is possible to see in words nothing more than a set of symbols that direct ne towards meaning—and the only possible authoritative meaning must be that embodied in the intent of the drafters (or adaptors) in authorizing the clusters of words that became text.
In this sense, words never have an ordinary meaning—they have only the meaning that expresses and furthers the intention of the drafters in choosing them to memorialize their intent, objectives, understandings, and purpose. If one embraces a notion of meaning through but not in words, then the object of extracting meaning might also be redirected from the meaning embedded in words (text, speech, or symbol) to an examination of the way that choices of meaning changes or threatens intent or purpose. That is one moves from a formal standard to a functional standard; the former focusing n words and their meaning, the later focusing on intent and effect.[24]
But whose intent and what effect, and what relationship between that intent and the articulation of preferred effect and the glossing of text? There are several possibilities, three of which merit consideration. The first focuses on the person or group actually drafting the language to be considered. The second focuses on the group that considered the draft submitted and approved or enacted it. The third focuses instead on those who applied it, whether within the apparatus of state or outside of it. This has particular relevance to the UNGP.
Focusing on the drafters would produce an analysis heavily weighing the work product of John Ruggie and his team. But this team included both a core of people and a larger band of others, sometimes harder to identify, that produced key input at various points in the process. It also leaves open the question of whose intent and wat effects ought to be used for interpretation: Ought the focus of the intent and effects be centered on the formal work product of John Ruggie as SRSG, or should a broader net be cast—including speeches and other performances of meaning, earlier work on other mandates and eve his academic work. The same would apply for his collaborators. If John Ruggie represents the synthesis of intent, then the individual strands of his collaborators’ intent may be weighed less or ignored. But the reverse may be true. Coordinating, weighing, and aggregating issues then may have greater effects on shaping interpretation than the actual intent or effects that are subject to that analysis. That is the danger, of course: text is hard to miss even if one misses the interpretive mark—intent must be constructed by the debris it leaves lying around, and the effects to be advanced or avoided must then be adduced from this construction.
In contrast, focusing on the endorsers shifts analysis to the UN Human Rights Council and the apparatus of the Office of the High Commissioner for Human Rights. But they did not work in a vacuum either and several states played leading roles. That opens the question of relevance, focusing on the universe of statements and materials produced. It also exposes the apparatus of the HRC and the OHCHR as contributors to the text—and the shaping of the intent—of the UNGP. That is not implausible. But it is inconvenient in the sense that it requires a disaggregation of intent and the production of identified effect that may be difficult to reconcile much less coordinate. And in this case, the problem of intent becomes more difficult.
Most interesting is the last of the possibilities—a focus on those who apply the text to whatever ends suit them. Here intent and effect is extracted from the aggregation of the uses to which it is put by those who find in it something sufficiently valuable o convenient to be bent to the purposes for which it is invoked. Here the political and strategic objectives of use may, in the aggregate provide a sese of the meaning of text; not necessarily the meaning the words suggest or that its creators, drafters, or enactors might have assumed, but rather the meaning which suits the mass of those who employ it for their own ends. This use, in some instances might itself function as a gloss—in the sense that the need to use text in a particular way requires the provision of some sort of more or less persuasive glossing of the text. That gloss, in turn, then serves as a basis for the instrumental proffering of text (now suitably glossed) and towards the ends for which the gloss is put forward.
The task of the Commentator. Where one moves beyond text to intent, the glossator may be tempted to choose. That choice is fair enough if it is made explicitly, and even better if the rationalization for the choice is also provided. That choice, however, is necessary if one moves from intent to effect. That is, if one uses the indeed effect as the basis for explaining/analyzing/interpreting—for glossing—text. One must be sensitive to the parallel approaches of glossing and interpreting a text. They occupy common ground. But the tasks are to some extent different, or at least their objectives out to be different. Explaining provides supplemental approaches to text to aid in the ability to understand what was attempted to be expressed through (in this case) words. Explaining can tie the broad themes of a text (as a whole, or as a set of interrelated parts) with its manifestation in each of its most granular sub-parts. Analyzing seeks to approach issues of complexity, ambiguity, or obscurity by disaggregating the thing analyzed into simpler (sometimes its simplest) elements and then to reconstitute the pieces in ways that are more approachable. Analysis can also serve as criticism, or in the process of reducing something to its essential components, to expose the underlying glue (ideology or unstated presumptions) that had held them together. That exposure then permits either better understanding the text in light of its ideological glue or to more effectively oppose the thrust of the ideology incarnated as text. Both are the stuff of treatise writing in the contemporary era. But leak into the core role now usually ascribed to the task of commentary.[25] Interpretating seeks answers about the meaning of text usually for the purpose of its application in specific context. Judges and lawyers interpret text, for example, in the context of providing advice to clients and in the meaning making context of disputes and dispute resolution. Interpretation is closely aligned with application—the positive act, which maty draw on explanation and analysis, for a determination of meaning as a function of the context in which interpretation is necessary, and then to its application—especially to its consequences as outcome, doctrine, and remedy.
Glossing is not undertaken for clients (as such) or with a specific problem (or set of problems) for which a more or less specific answer is necessary. Glossing, in this sense, has been described as an act of digestion, one the product of which is consumable by those otherwise unable to effectively approach the original text (unaided). “Because commentary sources digest the law for you, you will find it easier to grasp the law's meaning and the policies behind it. Also, commentary sources cite to the relevant case law, statutes, regulations and administrative rulings. This is particularly useful if you do not know the citation of a statute.”[26] A general commentary is best aimed at a board range of audiences. This commentary, more specifically, aims to benefit academics and students of international law and international relations. But it is also intended for practitioners—lawyers, judges, and individuals charged with enterprise compliance and responsible business conduct (RBC) portfolios.[27] It will also be a reference publication for legal advisers of governments and NGOs, as well as policy-makers and practitioners working in human rights and economic activity. Lastly, it is meant to be accessible to people with no specialized expertise. They form a critical audience. Many of them ultimately will bear the responsibility for transforming text, and the legal framework that follows, along with markets expectations, into viable systems of managing economic activity.
Putting this all together gives one a sense of the complexities of commentary But more importantly it suggests the central role of disclosure. This is especially significant where the object is to shift the power of decision--of the way that explanation, analysis, interpretation, etc., is received—from the commentator to the reader. The object here is not to hide but rather to expose the principles ad structures from which the act of commentary can be undertaken. It exposes the range of alternative approaches that are plausible within the cages of the UNGP structure and its thirty one principles plus its general principles. It invites the reader to be an active participant in the further construction and application of the UNGP—and in that way to contribute to its meaning in ways that build on the work and actions previously undertaken. And always, the key element of this commentary is to provide an anchor—a center—around which the significance and effects of intention, of intent, of effects, and of application and resistance, can be read consistently over time. That anchor, and that center is the text of the UNGP itself. That text is source, anchor and gateway; it is the bridge between aspiration and realization; and it is the representation of a system the construction of which was begun in earnest with the endorsement of the UNGP itself in 2011.
[1] Ioannes 1:1-3 (In the begging was the Word, and the Word was with God, and God was the Word. He was with God in the beginning. All things were made through him, and nothing that was made was made without him. John 1:1-3; translation Sacred Bible.org; available [https://www.sacredbible.org/studybible/NT-04_John.htm] ; The King James Version translates et “Deus erat Verbum” from the Vulgate as “the Word was God” ).
[2] See, e.g., Andrea Padovani, “‘Tenebo hunc ordinem’ Metodo e struttura della lezione nei giuristi medievali (secoli XII–XIV),” The Legal History Review 79 (2011) 353-389.
[3] This vanguard may be politically constituted and formally inserted into social relations—the communist party for example. Or they may constitute a priesthood—for example within religious communities. Likewise they may also develop informally through social interactions or by membership in a particular class of people, for example academics, or judges, or lawyers, or experts—as is common in some liberal democratic societies. Cf., Bertrand de Jouvenel, On Power: The Natural History of Its Growth (J.F. Huntington (trans); Indianapolis: Liberty Fud , 1993 (1947).
[4] Catechism of the Catholic Church ((2nd ed.) Libreria Editrice Vaticana.,2019) ¶ 11.
[5] Friedreich Nietzsche, The Antichrist (H.L. Mencken (trans) NY: Alfred A. Knopf, 1923; Project Gutenberg eBook #18322 (18 September 2006)), ¶ 8 (“So long as the priest, that professional denier, calumniator and poisoner of life, is accepted as a higher variety of man, there can be no answer to the question, What is truth? Truth has already been stood on its head when the obvious attorney of mere emptiness is mistaken for its representative”), also § 26.
[6] This, it seems, is built into the nature of commentary, especially by those whose patronage made commentary possible and desirable. See the discussion in Davis S. Clark, “The Medieval Origins of Modern Legal Education: Between Church and State,” The American Journal of Comparative Law 35(4) (1987) 653-719.
[7] See, generally, Elżbieta Chrzanowska-Kluczewska, “Textual indeterminacy revisited: from Roman Ingarden onwards,” Journal of Literary Semantics 44(1) (2015) 1-21; Schlomo C. Pill, “Leveraging Legal Indeterminacy: A Judeo-Islamic View of the Indeterminacy Problem and the Rule of Law,” Journal of Law, Religion, and State 6 (2018) 147-198.; Michael C. Dorf, “Legal Indeterminacy and Institutional Design,” New York University Law Review 78 (2003) 873-981.
[8] Cf., Ken Kress, “Legal Indeterminacy,” California Law Review 77 (1989) 283-337.
[9] “That is also my victim!” he exclaimed. “In his murder my crimes are consummated; the miserable series of my being is wound to its close! Oh, Frankenstein! Generous and self-devoted being! What does it avail that I now ask thee to pardon me? I, who irretrievably destroyed thee by destroying all thou lovedst. Alas! He is cold, he cannot answer me.” Mary Wollstonecraft (Godwin) Shelly, Frankenstein; or, the Modern Prometheus (Project Gutenberg eBook #84 31 October 1993), Chp. 24; available [https://www.gutenberg.org/files/84/84-h/84-h.htm#chap01].
[10] Kevin P. Tobias, “Testing Ordinary Meaning,” Harvard Law Review (2020) 134:726-806.
[11] See, e.g., among the mountain of worthy efforts: Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law Review (1947) 47, 527; Ronald J. Gilson, Charles F. Sabel & Robert E. Scott, “Text and Context: Contract Interpretation as Contract Design,” Cornell Law Review 100 (2014) 23; Aharon Barak , Purposive Interpretation in Law (2005); William N. Eskridge , Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016) ; Antonin Scalia & Bryan A. Garner , Reading Law: The Interpretation of Legal Texts (2012); Lawrence M. Solan , The Language of Judges (1993); Lawrence M. Solan, The Language od Statutes : Laws and their Interpretation (2010); Larry Catá Backer, “Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture,” Boston College Third World Law Journal 20 (2000) 291.
[12] See, e.g., Francis Lieber, Legal and Political Hermeneutics (3d ed. 1880; Friedrich Carl von Savigny, I System of the Modern Roman Law 66-268 (ed. 1979) (1st ed. Berlin 1849).
[13] Jan Broekman and Larry Catá Backer, Lawyers Making Meaning : The Semiotics of Law in Legal Education II (Dordrecht: Springer, 2013).
[14] Jan Broekman, Meaning, Narrativity and the Real: The Semiotics of Law in Legal Education IV (Dordrecht: Springer, 2016), p. 96.
[15] For a brilliant exposition in the context of the transition of the meaning of Irishness, see Donald Harman Akenson, “Public Taste: Baths Ain’t Always Bad,” Queen’s Quarterly 127 (2020) 244-263.
[16] Jan Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Dordrecht: Springer, 2023).
[17] Erik Ringmar, “The Problem with Performativity: Comments and contributions,” Journal of International Relations and Development 22 (2019) 899–908 (“To perceive and to conceive are closely related activities and explicit
interpretations become possible only because of this embodied interaction. Theatrical performances are one way in which we do this.” Ibid., p. 906).
[18] Guiguzi (鬼谷子), Guiguzi: China’s First Treatise on Rhetoric; A Critical Translation and Commentary (Hui Wu (trans.); Carbondale: Southern Illinois University Press, 2016 (before 220 A.D.)); Book II.6.1.
[19] Genesis 2:19 (KJV) (“And out of the ground the Lord God formed every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof”).
[20] Broekman, Meaning, Narrativity and the Real, supra, p. 94.
[21] Michel Foucault, Preface, Gilles Deleize and Félx Guattari, Ani-Oedipus: Capitalism and Schizophrenia (New Yor: Penguin Classics, 1977), p. xi. (“There was a certain way of thinking correctly, a certain style of political discourse. . . that made the strange occupation of writing and speaking a measure of truth about oneself and one’s time acceptable.”).
[22] Michel Foucault, Preface supra. This then serves as extended variant of the secret sheep chant in the movie Babe: ““Baa-ram-ewe! Baa-ram-ewe! To your breed, your fleece, your clan be true! Sheep be true! Baa-ram-ewe.” Babe (1995), quoted in Christopher Strom, “Baa-ram-ewe!” How the movie Babe explains the value of Lean project management, LinkedIn; available [https://www.linkedin.com/pulse/baa-ram-ewe-how-movie-babe-explains-value-lean-project-strom/].
[23] Friedrich Nietzsche, Beyond Good and Evil : A Prelude to a Philosophy of the Future (Helen Zimmern (trans.) from the Complete Works of Friedrich Nietzsche 19091913; Project Gutenberg eBook #4363 (1 August 2003); ¶ 268.
[24] Kent Greenawalt, Statutory and Common Law Interpretation (Oxford University Press, 2012), chp. 3.
[25] See for example, Jerome Hall Law Library, Maurer School of Law, University of Indiana, Human Rights Law, Secondary Sources: Commentaries and Treatises; available [https://law.indiana.libguides.com/c.php?g=19825&p=112497].
[26] Brooklyn Law School, Library, Library Guides, Researching Statutes: Commentary; available [https://guides.brooklaw.edu/c.php?g=330891&p=2222840].
[27] Cf., Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee of the Regions: A Renewed EU Strategy 2011-14 for Corporate Social Responsibility , COM/2011/0681 final (25 October 2011).
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