Politics, Postmodernity and Critical Legal Studies

The Legality of the Contingent

Costas Douzinas, Peter Goodrich, Yifat Hachamovitch

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134883578
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This timely and assured book provides a unique guide to critical legal studies which is one of the most exciting developments within contemporary jurisprudence. It is the first book to systematically apply a critical philosophy to the substance of common law. The book develops a coruscating and interdisciplinary overview of the politics and cultural significance of the institutions of the law.

Chapter 1

Introduction

Politics, ethics and the legality of the contingent

Peter Goodrich, Costas Douzinas and Yifat Hachamovitch

The discipline [of law] is disputatious because it rests on nothing more complete than a collection of fragments, reports, pieces themselves representing uncertain conjectures and incomplete divinations.

Francois Hotman, Anti-Tribonian ou discours d’un grand et
renomme
iurisconsulte sur l’estude des loix

Contingency is the condition of legal judgment and the limit of its reason. While contingency may be subject to laws it must also always escape legality. The contingent is particular: it is accident or change, it is experience or pathos and its reason is finite, mutable and only ever probable. The legality of the contingent, of justice or ‘lesbian rule’ (Lambard 1591), with which this work is concerned, is a legality that is tied on the one hand to the local and the particular, to the specific geography, institutions, disciplines, categories and reasons of common law, and on the other to the unique person who comes before the law. The focus of this study upon the legality of the contingent is also in part an attempt to formulate a philosophy of critical legal studies that recognizes the history and current political situation of critique in law. This entails not least a recognition of the role or complicity of critical legal scholarship in the reproduction of the legal institution and the transmission of legal doctrine, including the doctrine of critique. It involves further the formulation of a response to the context of what may be termed broadly postmodern jurisprudence. The contemporary contingency of legality is aligned to the prolonged collapse of certain specific beliefs in a positivized and closed world of abstract legal rules. The demise of the various sciences of law and of their accompanying substrate of systemic concepts throws legal theory back into the life world or the experience of the legal institution. It propels the critical scholar towards conceptions and practices of justice and injustice, judgement and decision, ethic and affection, subjectivity, speech and the other specific ephemera of the profession or teaching of law. To respond to the legality of the contingent is to formulate an account of the amorphous, incidental, fluid and indefinable realms of justice and judgement, carriage and miscarriage, politic and ethic of common law. This project is predicated upon a theoretical and political radicalism that returns to the specific histories and disciplines of common law and interrogates them in the strange-sounding name of justice.

HISTORIES

A sixteenth-century recusant, writing against Bishop Jewell and the reform of the Church of England, paraphrased a lengthy patriotic tradition of rationalist apologetics in the following warning: ‘Beware that no man spoil you through philosophy and vain deceit…. For these heretics put all the force of their poisons in log-like, or dialectical disputation, which by the opinion of philosophers is defined not to have power to prove, but an earnest desire to destroy and disprove’ (Harding 1565:32b). The politics of reason, in short, has always been a dimension of governance, of ecclesiastical and civil law. The aspersion of destructiveness or of wanton ‘disproving’ has traditionally been levelled against all attempts to question the authority of established reason, its institutions and claims to custody of truth and law. When the civilian lawyer Sir Robert Wiseman deprecated the early common law as being a ‘poor illiterate reason’, he concluded of the unwritten tradition and its ‘artificial’ logic of particulars that ‘there is not a more deceitful thing than reason; it being made use of frequently by false shows and colours to beautify the foulest and most deformed things…it is such a faculty, that those that are partakers of it in the meanest measure, do infinitely extol and admire what they apprehend to be reasonable, though to a right judgement it be nothing so’ (Wiseman 1664:2). The ‘illiterate’ reason of common law has been an object of criticism, of political denunciation and philosophical ridicule on many occasions and in very distinct historical circumstances. On each occasion criticism of the law accompanies a crisis in the tradition and in its claim both to necessity and to ethics or justice.

Critical legal studies is not a new phenomenon in jurisprudence, nor is postmodernity that unusual a category of historical context or crisis. The pervading postmodern sentiment that ‘things are not going well’, that justice has miscarried or law has separated itself from ethics, has accompanied innumerable distinct cultural movements and styles from asceticism to pursuit of the millennium, gnosticism to iconoclasm, romanticism to the baroque. Melancholia, mourning or dread are inevitably associated with periods of transition. A sense of nostalgia, of depression or of loss has always tended to accompany the birth or renewal of social forms and is expressed both in pessimism and in radicalism, in the return to tradition and the escape from the present associated with epochs and literatures as diverse as renaissance humanism, naturalism or surrealism. The fear of ‘unreason’, of irrationality, heresy or simple nihilism is the stagnated historical expression of an extant tradition, of a loss of confidence in orthodoxy, whether theological, jurisprudential or political. The attribution of darkness, melancholy, fragmentation, waste and irrationality are common themes in the early doctrinal tradition in common law, and the institution was constantly attacked for its arbitrary judgments, its sudden and inexplicable injustices, its harsh wastage of youth and promise as well as its fundamental philosophical irrationality and political inequity. Bentham, to take a later example, was equally scathing and bleak in his denunciation of common law in the age of statutes and of codes. The common lawyer preferred repetition to action, status to reason and the myopia of imitation to the politics of vision (Postema 1986). The American realists and their latter-day inheritors, to take one final example, find swift empathy amongst radicals in profaning the law review, satirizing legal language or simply further exposing the distance and subjection that passes as law in an age where all other cultural phenomena speak to a relentless uncertainty. The prognosis of failure, of dissolution or decay both within and without the legal institution, has returned quite as often as doctrine, prejudice, faith or some other species of modernity have promulgated the language of progress or the universality of science, dogma or truth. If the variously expressed, often contradictory and generally fragmentary sentiments of postmodernity are novel primarily by virtue of their contemporaneity, critical legal studies, which has come latterly in some quarters to be identified in part with postmodernity is equally both a return to a tradition of resistance or opposition to legal orthodoxy and a novel rewriting of the text or art of law.

The history of European critical legal studies, in the most basic common sense of movements critical of legal orthodoxy, can probably be traced, if not directly to the anomalist beliefs of certain early Roman jurists (Stein 1966:53–67), at least to the critical reaction of renaissance legal humanists and neo-scholastics to the glossatorial tradition of continental law. François Hotman, to take but one striking example, argued proleptically in Anti-Tribonian, a work first published in 1567, that a legal system such as that of France, based upon mimicking the law of ancient Rome, was both morally and politically reprehensible. Roman law, he argued, existed to protect the interests of the Roman property-owning classes or bourgeoisie:

And if it is necessary to speak of the civil law of the Romans, I would say unequivocally that it was neither made nor interpreted to the ends of equity or natural reason. It was never suitable for all nations, but was rather fashioned by a particular prerogative expressly invented for the purpose of maintaining bourgeois Romans (bourgeois Romains) in a higher degree and dignity than the other inhabitants of the country of Italy.

(Hotman 1567:74)

It was ethically inappropriate and socially illogical, he asserted further, to reason from the historical example of a classical law (tenebras antiquitatis) predicated upon extreme inequality to contemporary forms of regulation. Critical legal studies find here an early and exemplary statement which directly criticized law and particularly legal doctrinal writers, glossators and commentators, for failing to understand the social and political content of law, its reflection of inequalities and its potential for injustice. The subtitle of Hotman’s work is, significantly enough, Discourse upon the study of the Laws. The underlying concern of this critical legal humanism was with the educational institution and the teaching or doctrine of national law. Hotman thus based his critique of law upon the specific character, practice and belief of contemporary legal institutions. His argument was that poor scholarship and even weaker intellectual standards had deprived the legal tradition of its meaning and had left students and practitioners of law alike with the empty symbolism of a misunderstood classical tradition: an art of law which had grown both oppressive, useless and unjust (Hotman 1567:6). Hotman was concerned with the institution, with the study and teaching of law as a centrally located and culturally essential practice or ‘properly speaking’ art. He saw ignorance of the history and social context of law as the cause of its continued practical failure, its infelicities, its irrationalities, its errors and its injustices. The failure of legal reason, the historical ignorance of doctrine and the scholastic and abusive sophistry of contemporary jurisprudence were all indicative of the political failure of the republic itself.

The mission or project of humanist legal reform—of what is today called critical legal studies—was that of relating the reason of law to the politics of the legal institution. Hotman’s concern was not simply with the borrowings and the doctrinal inadequacies of a legal system that lacked any authentic reason or identity, but also with its theoretical and pedagogic weakness, the failings of a law that had come to repeat the sclerotic or at least anachronistic decisions and rulings of a past and little-understood era in the name of nothing more convincing than tradition. The return to theory was intimately linked to the teaching and practice of law: so close was the link between poor scholarship and the failings of legal practice that Hotman ends by attributing the bulk of disputes to lack of intellectual discipline, to poor philology and worse historical interpretation, a barbarous reverence for ancient, inappropriate and mistranscribed texts. The discipline was ‘an abyss’ of ignorance, wrangling, abuse, sophistry and injustice for which the parties would suffer. The reformulation of the legal discipline endeavoured precisely to tie the substance and categories of contemporary law to conceptions of equality, judgment and justice. The subsequent history of western jurisprudence saw several resurgent critiques of law associated not simply with recognized moments of decline in the standards of legal education and judicial reasoning but also associated with broader social and political movements which argued, particularly from within anarchistic and socialistic frameworks, that law itself was an unnecessary and all-too-human evil.

The Renaissance and Reformation saw numerous comparable critiques both of the particularism—the elaborate pleadings—and of the reason of common law associated with a wide variety of legal scholars, rhetoricians and antiquarians or in the modern idiom historians. The specific tradition of critique within English law was only in part a feature of the peculiar historicism of common law, of the rediscovery and reception of indigenous and imported legal forms. It was also, and more topically, a feature of comparative legal antagonisms and of the ill-fated desire to separate the common law from its continental and specifically Roman reasons and sources. The Continent was associated in the legal mind with theory and reform, radicalism and alterity. The most potent critics of common law were thus not only the antiquarians, but also the English civilian lawyers who refused to accept the irrational particularism, the haphazard comparisons or kadi justice of a spuriously nationalistic common law (Wiseman 1664). In this context the critique of common law was directed at the insularity and the formalism of a loosely knit system of precedent which refused to recognize any reason of law beyond the judicial prerogative, namely the arbitrium, dictate or fiat of the judge (Fraunce 1588). Whether in the name of the universal reason of Roman law or in that of a law of nature, a calculus of utility or some other normative criterion, the criticism of common law, right up to and including the more iconoclastic speculations of the American legal realists, was ultimately directed at the irrational particularity or purely habitual criterion (the repetition) of legal reason and judgment. In political terms the tradition of critique of common law is much closer to ethical humanism and to radical historicism than it is to the nihilism with which it is most frequently charged.

In contradistinction to the claim that critical legal studies is simply a development of a political critique of law based in a vulgar reduction of the legal to the economic or social, this book argues for an ethically committed politics of law that faces directly the institutional complexity of law, and particularly the symbolic and substantive domains and implications of legal practice. It is not sufficient merely to reiterate the abstract complicity or dependence of law upon economic exploitation or political and social inequality. No matter how real or devastating the enforcement of law or the products of law’s practice, an ethics of law or even a politics of legal judgment is an institutional issue in the sense that it is doctrine which determines the specific products, the designs, attitudes, complicities and judgments that govern institutional practice as sociality and political and ethical sensibility. The first stage in that expansion of critical legal studies into a doctrinal position involves a politics of legal education and of the substantive disciplines and practices which understand and explore law as a series of deeply historical phenomena (Murphy 1991). It demands a rethinking of the art and practice of law in the context of its history and the philosophy of its history. In specific terms, the doctrine of critical legal studies is a study both of the failures, of the injustices, the exclusions and the inequalities of the legal tradition and an examination of the future of law, of an ethics of legality in a context of acknowledged or confessed contingency. The contingency of common law only has a meaning, however, if it is related to the realm of principle as accident to essence, substance to form, particular to universal. In critical argument this relation of contingency to necessity implies that the practice of law take some account of the particular dictates of morality, ethics or justice. While most theories of law seek to achieve the best of all possible laws, to relate the realm of contingent judgment to the transcendental possibility of the good, common-law doctrine has increasingly assumed rather than proved or practised the relation of God, justice or truth to legal acts. This positivism of law has been expressed in a modernist jurisprudence which radically separates law from morality, norm from judgment and rule from interpretation. The history of such positivization and of its demise remains to be written, while the ethical consequences of the separation of law and morality are just beginning to be understood, their effects felt and their future questioned.

MARXISM AND THE DOCTRINE OF CRITIQUE

The contemporary cycle of intellectual movements in the study of law, of theoretical fashions, continental importations, schools and names is characterized by an accelerated rate of obsolescence. To the extent that contemporary critical legal studies may be loosely defined as an intellectual movement, as the emergence of a ‘left intelligentsia’ or politically radical institutional place within law, it has already changed its intellectual icons and traded-in its emblematic theoretical positions several times (Goodrich 1992b). Despite its youth, critical legal studies has generated so many histories of the movement itself that it is not only frequently and accurately characterized by its inwardness but is also depicted theoretically in terms of an uneasy self-referentiality (Schlegel 1992). That such self-referentiality is narcissistic was evident early on in the movement and is confirmed by the recognition that the principal subject-matter of critical legal studies in America was critical legal studies itself (Kennedy 1985: 1015). Whether defined in terms of fascination (fixation) or in terms of subjectification, the self-reference of critical legal studies has a further and more striking connotation. It is that critical legal studies has inevitably itself become a school and so is placed in the ironic position of propounding or teaching its critical doctrines as the orthodoxy of legal radicalism. Like the various schools and creeds of ‘postmodernism’, ranging from neo-conservatism to the politics of resistance (Foster 1985), critical legal scholarship comes by virtue of time and circumstance, if not by virtue of any more marked political success, to include and exclude, defend and denounce, accept and reject positions that have in their momentary turn come to define doctrine, canon and rule for critical scholars.

It is the argument of this book that critical legal studies, by virtue of becoming a school, by dint of its academic recognition and place, as well as its substantive applications in the teaching of law, takes on a new political responsibility. The school of critical legal studies may well be precarious in its status and varied in its generational and political positions yet it would be irresponsible in the extreme not to admit to the political commitments of institutional attachment. Institutionalization brings with it a series of practical, professional and pedagogic imperatives. Attachment to or capture by the institution also carries with it an organizational responsibility: the critical school, if such is an appropriate label, necessarily develops an internal organization, a hierarchy of members designated by institutional affiliation and position, age, publications, scholarly or academic reputation, editorships and other insignia of critical belief or academic prowess. It is thus not only doctrinal issues and the inevitable emergence of diversity or splits within critical legal thought that mark the rapid developmen...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• 1 Introduction: politics, ethics and the legality of the contingent
• Part I The contingency of judgement
• Part II The law of law
• Index