Abstract

This paper examines how the Barthesian difference between écrivains et écrivants can help analyse H.L.A. Hart’s Open Texture of the law. By comparing literary and judicial interpretation, one is able to better understand how lawyers, judges, and legislators can better interpret, use, and draft legislation and case law. In using concrete examples of legislation with regard to the phrase “cruel and usual”, this paper evaluates different interpretive techniques, uncovering key differences. In particular, it compares what implications the Death of the Author would have on legislation that may be considered as vague, or open-ended. Could this mean the Death of the Legislator? What kind of impact may this have on a democracy’s authority? Ultimately, it is suggested that Barthe’s interpretive literary theories are undesirable when it comes to deciphering legislation. Indeed, more concrete and structured approaches are needed.