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190 Chapter 11
This inseparable concomitance between the possible and the
impossible (nothing is possible unless it is, at least at first, impossible)
derives from the structure of language and linguistic statements that
determines all shared interpretations and the sharing of all
interpretations, a structure that one can describe by the neologistic
conjunction immimanence, that is, the neologistic conjunction of the
words immanence and imminence. Language is not only immanent to
itself as Wittgenstein taught us. Language is always also imminent.
Language does not only allow one to say what has hitherto been
sayable, it also allows one and indeed requires one to say also what
has hitherto remained unsayable. 10 It requires us to say the unsayable
for the sake of the existential significance of the linguistic utterance,
an existential significance that often goes by the name of justice.
The tension between the already sayable and the as yet unsayable
that always waits to be said for the sake of justice, the tension
between immanence and imminence, is the mark or scar of all
language and all linguistic utterances. This mark or scar informs all
levels of ‘shared’ interpretation. Shared interpretation is scarred
interpretation. There is no sharing without slicing or cutting. Indeed,
shared interpretation is scarred interpretation to the extent that it
heals somewhat and does not remain a gaping wound. The latter, one
should add without the consoling assistance of parentheses, always
remains a scary possibility.
The relation between the legislature and the judiciary is the locus
of the encounter between existing law and new law, of law that has
been said and law that has hitherto remained unsaid and unsayable.
As such, the relation between the legislature and the judiciary is one
of immanence and imminence. An old formalist understanding of the
liberal distinction between law and politics would have us simplify
this relation as one of absolute constitutional immanence and relative
legislative imminence. According to this formalist understanding,
parliament can make (relatively) new law, provided it essentially
remains subject or reconcilable with the unchanging essence of
constitutional norms. The post-formalist understanding of the
distinction between law and politics and of the relation between
legislatures and judiciaries that is current today requires a more
complex understanding of the relation between the immanence and
imminence that is at issue here.
No realist or realistic lawyer or legal scholar would deny today the
irreducible imminence of constitutional interpretation and
constitutional review. Constitutional review often brings new law into
10
For a further discussion of this point, see J van der Walt ‘Immimanence: Law’s
language lesson’ (2006) Law Culture and the Humanities 2.