Introduction to Critical Legal Theory

Ian Ward

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781136997815
• Edition: 2
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Introduction to Critical Legal Theory provides an accessible introduction to the study of law and legal theory. It covers all the seminal movements in classical, modern and postmodern legal thought, engaging the reader with the ideas of jurists as diverse as Aristotle, Hobbes and Kant, Marx, Foucault and Dworkin. At the same time, it impresses the interdisciplinary nature of critical legal thought, introducing the reader to the philosophy, the economics and the politics of law.

This new edition focuses even more intently upon the narrative aspect of critical legal thinking and the re-emergence of a distinctive legal humanism, as well as the various related challenges posed by our 'new' world order.

Introduction to Critical Theory is a comprehensive text for both students and teachers of legal theory, jurisprudence and related subjects.

CHAPTER 1 IDENTIFYING MODERNISM

DOI: 10.4324/9780203855478-1

The Classical Tradition

The search for meaning

This book is premised upon the need to identify modernism, in order then to describe the various critical legal theories which have sought to revise an original model. Of course, the unavoidable paradox here is that there is no universally regarded model of modernism – just as there is no universally accorded critical tradition. There are various modernisms and various critical traditions, a number of which we will encounter in subsequent chapters. However, in order to establish a sufficient basis for our critical project, we must attempt to excavate certain theories of law and politics which are often alleged to be representative of modernity, and thus, in this first chapter, we will revisit the classical tradition of Plato and Aristotle, as well as later medieval theological variants, before finally addressing the survival of contemporary ideas of natural law and natural rights. By the end of this chapter, we will already have encountered a number of revisionist and critical theories of law. Indeed, by the time we leave Plato, we will have made critical concessions, for, as we shall shortly see, Aristotle was Plato's greatest critic, and just as modernism is often traced back 2000 years, so too are the origins of critical legal thinking.

The earliest recorded legal code is that of Hammurabi of Babylon, who ruled from 2067–25 BC. Greek legend records lawgivers such as Solon and Dracon drafting legislation around 700 BC. An interest in legal theory is just as ancient. For centuries, law has been justified in philosophical terms: in terms of an intrinsic rationality. Law is rational, and because of that, justified. In making this claim, philosophers have necessarily aligned law with the truth. In other words, they have justified law in terms of its foundation in some sort of supreme truth. As we shall see in this chapter, for Plato, it will be a truth in natural order, whilst for Aristotle, it will be a truth in moral virtue, and for Aquinas, a truth in God. Classical Greek philosophy could not accept that life had no meaning. The very earliest civilisations tended to found their social laws and customs in forms of divinity and associated fertility cults. The first organised churches, established by the Orphics, were devoted to the cult of the Thracian god, Bacchus. For them, the only meaning in life was pleasure, and more particularly sex.

The search for ‘essence’ intensified with the pre-Socratics. It was they who first wondered whether there might not be more to life than sex. Thales of Miletus, alive during the 6th century BC, was convinced that everything was made of water. Another Miletian, Anaximander, can be termed the first legal philosopher, in that he decided that justice was the essential intellectual concept, and could be proved in natural order. Still another, Anaximenes, decided that everything was made of air, and spent most of his life trying to prove that the world was shaped like a round table. The evolution of pre-Socratic ideas tended to progress in this way – mixing the perceptive insight with the bizarrely improbable. Heraclitus of Ephesus concentrated on death and struggle, and concluded that the essential experience of life lies in exterminating someone else. Such pessimism finally led him to declare that ‘The cosmos, at best, is like a rubbish heap scattered at random’. Parmenides decided to the contrary that nothing ever changes; we are always stabilised by our history, and should always organise our social institutions in such a way as to prevent innovation.

It is only with the Athenians that we encounter a more immediate concern with legal and political philosophy. It is often asserted that the Athens of around the 3rd and 4th centuries BC was the first to experience democracy, as it was also the first political State to define itself in terms of laws (Kelly, 1992, p 10). This is only partly true. Democracy is a relative concept, and in the democracy founded by Pericles of Athens, there were 230, 000 slaves. Pericles's democracy extended participatory power to a select number of essentially aristocratic citizenry, and no further, and it is Pericles's Athens which provides the immediate historical context for both Plato and Aristotle. In 429 BC Pericles died and was succeeded by radical democrats, and a period of intermittent civil disorder. It was amidst this political chaos that Plato's great mentor and teacher, Socrates, was executed, and the recorded accounts of his trial and death provide the immediate perspective for Plato's Republic and The Laws. Socrates was condemned to death in 399 BC, on charges of introducing new gods and corrupting the youth. His defence was based on the idea that reason could describe truth. It was intrinsically right to articulate the truth and, being necessary for the good order of society, could never be unjust (Plato, 1969, pp 51–52, 60–64). Socrates's death is as important as his trial. Following his refusal to seek mitigation and his determination to ensure his own capital sentence, Socrates then stolidly refused to escape, even though the nature of imprisonment was such as to encourage it. He decided to die in the cause of his philosophy. It was a matter of integrity, and to have run away and avoid death would have been to admit that philosophical principle was not of ultimate importance. Preservation of the body is a mere distraction, when compared with the preservation of truth. Moreover, it would also break his agreement with the society in which he lived. If Socrates had evaded the law, he would have been conceding that the individual interest could sometimes come above that of the State. To have evaded the law would indeed have rendered him guilty as a corrupter of young minds (Plato, 1969, pp 89–95).

Law and order in Plato's Republic

Plato's Republic, written around 375 BC, was composed as a paean to Socratic moral and political philosophy, and at its heart could be found the concept of order. It was an immediately jurisprudential gesture, for it is ‘justice’ which assures order (Grayling, 2002, pp 24–25). Good order is just and disorder is unjust. There are three essential themes in Republic: the construction of the ideal commonwealth; the role of education; and the role and definition of philosophy. Moreover, each book of Republic contributes to the description of a utopian society. Every philosophy aspires to describe a utopia. Philosophy founds politics, and it is crucial that this order is not reversed. Indeed, this notion of ideal form, which we then aspire to emulate in reality, was Plato's core philosophical tenet, and presented as a counter to the suggestion that justice is simply a matter of dealing with each situation as it arises. For Plato, there are supreme rules which can and must be used in the resolution of every situation. This ‘theory of forms’ is founded on his distinction between knowledge and opinion. Knowledge simply is, and is quite apart from our perception or sensation of it. Our sensation of knowledge is opinion. Ideas, accordingly, simply are. Our perceptions of ideas are our approximations of them, founded upon opinion. This basic thesis is described by a series of metaphors, of which the Cave metaphor is perhaps the most famous. Plato describes a situation where a number of primitive cave dwellers are bound together facing a wall upon which a series of shadows play. The shadows are, of course, merely illusions or approximations of the real forms from which the shadows are cast. The light which casts the shadows represents the idea or truth, and the more advanced society is one which models itself upon the light and ideal, rather illusion and shadow (Plato, 1987, pp 316–21; cf MacIntyre, 1967, pp 44–45).

Plato's ideal society is fashioned with this philosophical model in mind. At the same time, there is an essential congruence between society and self. The ideal society is constituted by ideal individuals. We aspire to be good as individuals because that is how we can contribute to the good of society, and we will do so because we will be educated in an understanding of reason. We can then aspire to excellence, which is, indeed, the duty of the good person. For Plato, then, justice lies in the perfectly ordered society, populated by perfectly ordered individuals, and the interest of the self and of society are as one. The ideal commonwealth is determined by its good order, and this order is natural and metaphysical, which means it exists external to the individual. The metaphysical world and its order exist, whether or not you and I do, and anything in accordance with this order is just. Understood in this sense, justice is the ‘highest category’ of good to ‘which everyone who is to be happy’ must aspire (Plato, 1987, pp 75, 103). And because we are all rational beings, we must necessarily share this aspiration. Justice has nothing to do with equality or fairness. Neither, accordingly, do just laws. Just laws constitute good order, mirroring, or attempting to mirror, the ideals of natural order.

This basic idea underpins the various constituents of the ideal republic which Plato proceeds to describe. Most importantly, there are three kinds of citizen: artisans, who provide basic material needs and constitute the commoners; soldiers, who defend society; and rulers, who administer society. These three kinds mirror the three divisions of the soul. The first of these is the rational, and it is the rulers who are supremely rational. The second is the spiritual or agent, and it is the soldiers who act as agents of the State. The third is the appetitive, and it is the artisan who all too often abandons all reason and indulges in wild desires. The class of each individual is determined by which part of the soul is dominant, and it is therefore very necessary that political power rests with the rulers, whose souls are dominated by reason, ‘the reflective element in the mind’. Just as justice in the ideal individual would be a perfect balance between each, so too is justice in the ideal republic (Plato, 1987, pp 208–21). In real terms, therefore, justice is everyone ‘minding one's own business’ and doing the task best allotted to them in terms of the natural disposition of the soul. In this way, there will also be perfect harmony between ruler and ruled, State and society, so ‘the individual man is just in the same way as the State is just’ (Plato, 1987, pp 204, 218). At all times, then, Plato is describing a society defined by order. Sex, for example, should be harmonic, perfect in form, and in the service of the State. In the ideal society, only the most distinguished and rational should be encouraged to copulate and procreate; that is, those who appreciate the importance of order. Moreover, in case parental relations intrude upon an appreciation that everyone's first duty is to the State, children should be removed from their families and reared by the State. Inferior or crippled children, plainly lacking in perfect form, are to be banished (Plato, 1987, pp 237–41).

The idea of education is essential, necessary for the purpose of training the mind in the relation of reason, justice and harmony. As Socrates suggested, ‘rhythm and harmony penetrate deeply into the mind and take a most powerful hold on it’. It is education, not law, which will produce good citizens. Such education will be conducted primarily through music and gymnastics. Only the musician who appreciates harmony can play beautifully, and only the gymnast who appreciates perfect form will avoid perpetually falling over (Plato, 1987, pp 157–68). Aside from music and gymnastics, the ideal citizen is to be inculcated in the virtues of gravity, decorum and courage, and most certainly discouraged from laughter. Nothing can be more disruptive to natural harmony than jollity. Poets and artists who so indulge are to be banished from the ideal society (Plato, 1987, pp 132–39). Of course, it is only reasonable to expect the citizenry to be educated. It is not necessary for anyone else. Indeed, philosophy is ‘impossible among the common people’. Education is essential for the guardian class, and Plato's ultimate ideal is for a philosopher-king – someone supremely capable of rule, precisely because he is supremely educated in the intrinsic relation of justice and harmony.

Realising this ideal is essential, because ‘the society we have described can never grow into a reality’ until ‘philosophers become kings in the world’. Such kings are like ‘king bees in a hive … better and more fully educated than the rest and better qualified to combine the practice of philosophy and politics’. It is they who will legislate for the benefit of the ‘society as a whole’, using ‘persuasion or compulsion to unite all citizens and make them share together the benefits which each individually can confer on the community’. Moreover, ‘its purpose in fostering this attitude is not to leave everyone to please himself, but to make each man a link in the unity of the whole’ (Plato, 1987, pp 263, 289, 323–24). Such a ruler, Plato calculates, will be precisely 729 times happier than a tyrant. His subjects will also be considerably happier that those who live in ‘imperfect societies’, of which tyranny and democracy are the two prime examples. Democracy is a form of anarchy, in which various political interests dedicate themselves to the extermination of all others, and such polities are characterised by a lack of principle, order and justice (Plato, 1987, pp 377–91, 415).

Plato's Laws have been described as something of a ‘postscript’ to Republic (MacIntyre, 1967, pp 51–56). To a considerable extent this is true. Once again, Plato describes a utopia, and the philosophical model presented in Republic – the theory of forms – again provides the foundation. In this utopia, which Plato calls ‘Magnesia’, there are precisely 5,040 citizens, together with as many slaves as necessary, all of whom enjoy a sunny climate, good water supply and a happy disposition. There is a comprehensive State religion, and all property is inalienable, staying within the family. This way, no one should squabble about theological matters, possessions or climactic disadvantage. The threat of wealth and property is particularly acute. ‘Virtue and great wealth’, Plato assures us, ‘are quite incompatible’ (Plato, 1970, pp 212–13, 350–53). This sense of community is enhanced by State supported drinking parties and communal feasts. Such parties are all part of the education of the good citizen. So, once again, is music. The great mistake in Egyptian society, Plato confidently advises, is a failure to educate people in the importance of musical harmony (Plato, 1970, pp 63, 91–92, 116). Sex is again paramount, and Plato enhances the various ways of ensuring ideal procreation advanced in Republic, adding a series of insights, including the importance of prohibiting copulation whilst drunk (so by implication much of the time in Magnesia). Chastity is not in the best interests of the community, and anyone who has failed to marry by 35, and who is sufficiently reputable as to be likely to produce good citizens, is to be fined annually. The onus of responsibility lies with the men. Women tend to chastity, and are naturally less inclined to virtue in the wider sense of contributing to the good of the community. Female officials are to be employed to travel round ensuring that people are copulating and doing so properly, and are particularly trained to detect intransigent women who remain deviously chaste (Plato, 1970, pp 250–63).

Plato's concern with procreation is founded on the central belief that man is defined by life in communities. Man has a natural inclination to live in communities, and therefore man has a natural inclination to good order, only disrupted by wealth or poverty, but not presumably by inebriation or indigestion, or loud music. Man does not simply wish to ‘survive’, but to ‘become as virtuous as possible’. He can only do so in a just (meaning well ordered) society, for it is only ‘when a single people speaks the same language and observes the same laws’ that ‘you get a certain feeling of community’. There was no room for multiculturalism in Plato's utopia, and certainly not migrants. Nothing was more likely to disrupt good order than a foreigner (Plato, 1970, pp 122, 162–63). Furthermore, the good citizen will appreciate the role of law in preserving justice. Deviants, unwelcome guests and poor musicians will enjoy a punishment inspired by a common revulsion and ‘righteous indignation’ (Plato, 1970, pp 188–95).

Finally, the role of the philosopher-king is once again paramount, and his laws play a crucial role in fashioning society. At ‘every stage’, Plato suggests, the lawgiver ‘should supervise his people’ and use laws as instruments for the ‘proper distribution of praise and blame’ (Plato, 1970, p 55). For the practical political world, Plato advances related principles of the rule of law and the balance of powers, both of which are cast as a defence against anarchy or tyranny. It is for the ruler, who naturally exists aloof from the rule of law, to maintain perfect harmony and a balance of power. Such a ruler, Plato readily admits, is a ‘dictator’, but being educated in the virtues of reason, should be a fairly benign one. History suggests, Plato assures us, that malignant dictators have not come across his philosophy before, and so might be excused the more regrettable examples of their tyranny. Once the virtues of natural order are properly understood by the educated ruler, such tyrannies will disappear from history. Certainly, absolute monarchy is the best hope there is, for if the ruler fails, the society will be cast into the horrors of democracy, where everyone does pretty much what they want, pursuing their own interest regardless of that of the wider community. Such a form of government Plato dismisses as ‘voluntary slavery’. Fortunately, those of a democratic disposition can be spotted by their failure to appreciate harmonious music and their predilection for poetry and theatre (Plato, 1970, pp 140–42, 167–74).

Aristotle and the ethics of virtue

Born in 384 BC, Aristotle is the first, and most important, critic of Plato. The basis of Aristotle's critique is founded on the need to make philosophy practical. Rather than devoting himself to the tricky business of metaphysics, he concentrated on the application of philosophical principles to the sciences of politics, law and economics. Whereas Plato started from the question ‘what is man?’, and progressed to a definition which required the congruence of man and society, Aristotle immediately concentrates on that society, assuming that it is impossible to conceive of man external to society. Unlike Plato, who was happy to write a philosophy in the form of a series of often rather whimsical dialogues, Aristotle determined to systematise. Rigour, not rhetoric, was the key to understanding. Law and politics is not just a philosophy, it is a philosophy of science. Moreover, it is a science because man is rational, and it is the possession of reason which ensures that both man, and the world in which he lives and which defines him, can be fully rationalised. Aristotle's certainty that science could discover the foundation and meaning of everything, through the power of reason, remains hugely influential. The systematisation of philosophy is one of Aristotle's great contributions, and matters of ethics and politics, of justice and law, are part of this great overarching system. Where meta-ethics is the science of pure rationality, ethics, which is the concern of Aristotle's greatest work, The Ethics, is the science of political rationality and political philosophy.

The essential theme of Aristotle's Ethics is established with the initial question, ‘What is the object of life?’. In the very first lines of The Ethics he suggests: ‘Every art and every investigation, and similarly every action and pursuit, is considered to aim at some good’...