One of the foremost contemporary German intellectuals, Jürgen Habermas (b. 1929) is widely revered for the originality of his philosophy and his perceptive social criticism, though he is not easy reading. Among his numerous insights, which integrate subtle cultural, political, and economic analysis, is his view that despite the inexorable march of ‘instrumental-technocratic consciousness’, and the domination of the ‘life world’ it brings in its wake, the capitalist state also presents opportunities for greater ‘communicative action’.
The combined effect of capitalism and a strong, centralized authority results, he argues, in the ‘life world’ – the sphere of common norms and identities – being intruded upon. This generates atomization and alienation (shades of Marx). Because the ‘life world’ is established by processes whose existence depends on communication and social solidarity, this intrusion undermines the ‘life world’ itself, and reduces the prospects for collective self-determination. He nevertheless recognizes the prospects for rational communicative discourse in respect of facts, values, and inner experience.
What does this have to do with the law? The answer is complex. Given that his concept of ‘communicative reason’ is based on the principles of freedom and equality, it would not be unreasonable to expect Habermas to embrace some form of liberalism. In doing so, he distinguishes between ‘law as medium’ and ‘law as institution’. The former describes law as a body of formal, general rules that control the state and the economy. The latter inhabits the ‘life world’ and hence expresses its shared values and norms in institutional form, for example, those parts of the criminal law that touch on morality. Unlike ‘law as medium’, ‘law as institution’ requires legitimation. In fact, argues Habermas, in our pluralistic, fragmented society, these institutions are a potent basis of normative integration.
The legitimacy of the law, he contends, depends significantly on the effectiveness of the process of discourse by which the law is made. Consequently freedom of speech and other fundamental democratic rights are central to his theory of ‘communicative action’. Habermas has provoked a gargantuan literature. He has been criticized, for example, for the disproportionate confidence he places in the law as a vehicle for accomplishing social integration. And some commentators find his suggestion that only those legal norms are valid to which all persons affected have assented as participants in rational discourse somewhat fanciful; he appears to be advocating a form of Athenian democracy!
The recondite ideas of influential French thinker Michel Foucault (1926-1984) touch, directly and indirectly, on the role of law in society. In particular, his unconventional philosophy, or what, in his later work, he prefers to call ‘genealogy’, attempts to reveal the nature and function of power. It is, he argues, distinct from either physical force or legal regulation. Nor is it hostile to freedom or truth. Instead, he demonstrates how, beginning in the 18th century, the human body was subjected to a new ‘microphysics’ of power through the geography of institutions such as factories, hospitals, schools, and prisons. Discipline consists of four ‘practices’, each of which engenders consequences on those who are subjected to it. This control creates in those who are its subjects an ‘individuality’ that contains four characteristics: ‘cellular’ (by the ‘play of spatial distribution’), ‘organic’ (by the ‘coding’ of activities), ‘genetic’ (by the accumulation of time), and ‘combinatory’ (by the ‘composition of forces’). And discipline ‘operates four great techniques’: it draws up tables, it prescribes movements, it imposes exercises, and it arranges ‘tactics’ in order to obtain the combination of forces. He concludes: Tactics, the art of constructing, with located bodies, coded activities and trained aptitudes, mechanisms in which the product of the various forces is increased by the calculated combination are no doubt the highest form of disciplinary practice.
The application of these methods renders the social order more controllable. Disciplinary power, additionally, induces us to act in ways that we come to think of as natural. We are therefore manipulated and managed by these ‘technologies’: we become ‘docile bodies’ – and, as a result, capitalism is able to advance and thrive.
His analysis of power leads him to query liberal ideas, and their preoccupation with centralized state power. Indeed, he regards it as a means by which liberalism actually furthers the very domination it seeks to reduce.
Foucault’s universe is one in which disciplinary power pervades almost every element of social life, thus the law has no special claim to primacy. Regulatory government directs policy towards controlling an assortment of threats to the maintenance of social order. The law has thus become ‘sociologized’. Formal equality is a smokescreen behind which lies the power that characterizes the postmodern state.
Despite the impenetrability of much of his unsettling work, Foucault’s inventive approach to the practice of disciplinary power illuminates the darker reaches of social control by shifting attention away from the institutional operation of the law towards its effect on each of us as individuals.
Critical legal theory
Many of the theories outlined in the previous five chapters are greeted with scepticism by those who adhere to what, in the broadest sense, may be called critical legal theory. This wing of legal theory generally spurns many of the enterprises that have long been assumed to be at the heart of jurisprudence. And it repudiates what is taken to be the natural order of things, be it patriarchy (in the case of feminist jurisprudence), the conception of ‘race’ (critical race theory), the free market (critical legal studies), or ‘metanarratives’ (postmodernism).
The primary purpose of critical legal theory, it is reasonable to assert, is to contest the universal rational foundation of law which, it maintains, clothes the law and legal system with a spurious legitimacy. Nor does critical legal theory accept law as a distinctive and discrete discipline. This view, it alleges, portrays the concept of law as autonomous and determinate – independent from politics and morality – which it can never be.
The myth of determinacy is a significant component of the critical assault on law. Far from being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and economic power. In addition, as many of the adherents of critical legal studies (CLS) claim, the law is neither neutral nor objective. To achieve neutrality, the law employs several fictions or illusions. Most conspicuously, it vaunts the liberal ideal of equality under the rule of law. But this, in the view of CLS, is a myth. Social justice is a hollow promise.
Critical legal studies
CLS emerged in the 1970s in the United States as a broadly leftist critique of orthodox legal doctrines. Originally, it had three distinctive features. First, it was situated within legal, as opposed to political science or sociological scholarship. Secondly, it sought to tackle the injustices it identified in legal doctrine. Thirdly, it adopted an interdisciplinary approach, drawing on politics, philosophy, literary criticism, psychoanalysis, linguistics, and semiotics to expound its critique of law.
The movement generated mountainous waves, not only in American law schools, but in their counterparts in Britain, Canada, Australia, and elsewhere. Yet, despite its contemporary chic, CLS is often characterized as a latter-day version of the American realist movement of the 1920s and 1930s. American realism was the name given to a progressive coalition of lawyers, judges, and scholars that rejected the formalism of Austin, Bentham, Mill, and Hume, and presented a more sociological account of the ‘law in action’. They eschewed what they considered to be the ponderous metaphysics that preoccupied legal theory, and its fixation with the meaning of concepts such as commands, rules, norms, or any other construct that had no foundation in what they regarded as ‘reality’. American realism was absorbed in empirical questions, especially those that attempt to discern the sociological and psychological factors that influence judicial decision-making. Notwithstanding this pragmatic approach, they were inherently legal positivists. Thus, while they did not wholly spurn the notion that courts may be constrained by rules, the realists contended that judges exercise discretion much more frequently than is generally believed. They denied, of course, the natural law and positivist view that judges are swayed mainly by legal rules, but for the realists the key factors determining the outcome of a case were the political and moral intuitions relating to its facts. Father of the movement, Oliver Wendell Holmes (1841–1935), famously declared that the common law ‘is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified’. Holmes, as a Supreme Court Judge, not surprisingly, believed that the law should be defined by reference to what the courts actually said it was. This is particularly apparent from his celebrated address, ‘The Path of the Law’, which he delivered to law students in 1897. He advised them to distinguish clearly between law and morality: consider what the law is, not what it ought to be. Look at the law, he argues, from the position of the ‘bad man’: ‘If you want to know the law and nothing else,’ he asserted, ‘you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.’ Holmes also thought that legal developments could be scientifically justified. The ‘true science of law’, he maintained, ‘consists in the establishment of its postulates from within upon accurately measured social desires instead of tradition’.
Karl Llewellyn (1893-1962) adopted a so-called functionalist approach to the law that perceives it as serving certain fundamental functions, what he calls ‘law-jobs’. He reasoned that law should be regarded as an engine ‘having purposes, not values in itself’. If society is to endure, certain essential requirements must be satisfied; this produces conflict which must be resolved. The central idea of this functionalist account of law is the ‘institution’ of law which performs various jobs. An institution is, he says, an organized activity built around the doing of a job or cluster of jobs. And the most important job the law has is the disposition of trouble cases. It is true that both American realism and CLS share a skeptical, anti-formalist view, but CLS cannot properly be regarded as a ‘new realism’. Though both movements seek to demystify the law, and to expose its operation as law ‘in action’, CLS does not engage in the pragmatic or empirical concerns that preoccupied the realists.
Instead, its adherents regard the law as ‘problematic’ in the sense that it reproduces the oppressive nature of society. Moreover, unlike the American realists who accepted the division between legal reasoning and politics, CLS regards it as axiomatic that, in effect, law is politics; and legal reasoning is no different from other forms of reasoning. In addition, although the realists sought to distinguish between legal rules and their actual operation in society, they generally embraced the neutrality of law and the ideology of liberalism. CLS denies both.
Indeed, applying Marxist and Freudian ideas, CLS detects in the law a form of ‘hegemonic consciousness’, a term borrowed from the writings of the Italian Marxist, Antonio Gramsci, who observed that social order is maintained by a system of beliefs which are accepted as ‘common sense’ and part of the natural order - even by those who are actually subordinated to it. In other words, these ideas are treated as eternal and necessary whereas they really reflect only the transitory, arbitrary interests of the dominant elite.
And they are ‘reified’, a term used by Marx and refined by the Hungarian Marxist, György Lukács, to refer to the manner in which ideas become material things, and are portrayed as essential, necessary, and objective when, in fact, they are contingent, arbitrary, and subjective. Moreover, legal thought is, following Freud, a form of ‘denial’: it affords a way of coping with contradictions that are too painful for us to hold in our conscious mind. It therefore denies the contradiction between the promise, on the one hand of, say, equality and freedom, and the reality of oppression and hierarchy, on the other.
The Brazilian social theorist, Roberto Unger (b. 1947) is an important source of CLS ideas. The representation of society, he contends, is infused with the following four beliefs. First, that law is a ‘system’, and as a body of ‘doctrine’, properly interpreted, it supplies the answer to all questions about social behaviour.
Secondly, that a special form of legal reasoning exists by which answers may be found from doctrine. Thirdly, that this doctrine reflects a coherent view about the relations between persons and the nature of society. And, fourthly, that social action reflects norms generated by the legal system, either because people internalize these norms or actual coercion compels them to do so.
CLS challenges each of these assumptions. First, it denies that law is a system or is able to resolve every conceivable problem. This is described as the principle of indeterminacy. Secondly, it rejects the view that there is an autonomous and neutral mode of legal reasoning. This is described as the principle of anti-formalism.
Thirdly, it contests the view that doctrine encapsulates a single, coherent view of human relations; instead CLS maintains that doctrine represents several different, often opposing points of view, none of which is sufficiently coherent or pervasive to be called dominant. This is described as the principle of contradiction. Finally, it doubts that, even where there is consensus, there is reason to regard the law as a decisive factor in social behaviour. This is described as the principle of marginality.
If law is indeterminate, legal scholarship defining what the law is becomes merely a form of advocacy. If there is no distinct form of legal reasoning, such scholarship is reduced to political debate. If legal doctrine is essentially contradictory, legal argument cannot rely on it, if it is not to result in a draw. And if law is marginal, social life must be controlled by norms exterior to the law.
Some of the more radical ideas of CLS are difficult to take seriously. The suggestion, for example, that to counter the hierarchy endemic to law schools, all its employees – from professors to janitors – be paid the same salary has not been enthusiastically endorsed, at least by the former group. There is no question; however, that CLS has played a significant role in illuminating the fissure between rhetoric and reality. Yet the possibilities of transforming the law seem frequently to be diluted by the destructive, even nihilistic, tendencies of some of the more dogmatic adherents of CLS. Many of its ideas are still influential in the legal academy.
Postmodern legal theory
‘I define postmodern as incredulity toward metanarratives.’ Thus spake Jean-François Lyotard (1924-1998) in his influential book, The Postmodern Condition: A Report on Knowledge. The promise of truth or justice held out by the grand ‘metanarratives’ of Kant, Hegel, Marx, and others has, in our age, been betrayed. Universal values, ‘master narratives’, are regarded by postmodernists like Lyotard as superfluous, if not meaningless. The great historical epochs, developments, and ideas, especially those associated with the Enlightenment - and the Enlightenment it - are treated with profound suspicion. The conventional assumption that human ‘progress’ is ‘evolving’ toward ‘civilization’ or some other end is rejected by postmodernists who seek interpretation and understanding in the personal experience of individuals.
This attack on the Enlightenment includes a dismissal of the Kantian concern with individual rights, equality, and justice characteristic of modernism. But the target is even larger, for the espousal of these values is not confined to those who champion the idea of natural rights. They are adopted by a good deal of post-Enlightenment legal theory, including positivism. Drawing on elements of ‘cultural theory’, and the writings of Michel Foucault, Jacques Derrida, Jacques Lacan, and other – principally French and German – theorists, postmodernism may also be understood as an attempt to invalidate, or at least to contest, the methods, assumptions, and ideas of the analytical Anglo-American philosophical tradition.
Postmodernist accounts of society, and the role of law within it, disclose disillusionment with formalism, essentialism, statism, utopianism, and even democracy. Nor does the scepticism end here. Critical theory, whether aesthetic or ethical, seeks to subvert ‘foundational’ ideas of truth. It expresses impatience with the modern state’s bureaucratic suffocation of the individual, the overarching presence of the state, the increasing globalization of markets, and universalizing of values.
It has also (perhaps inevitably) witnessed a new pragmatism. A down-to-earth set of goals - economic, ecological, and political - is accompanied by the advocacy of a more inclusive community that emphasizes the special predicament of women, minorities, the dispossessed, and the poor. A popular expression (to be found also among CLS and feminist theorists) is ‘empowerment’. But the radical postmodern political agenda is a complex one which may generate confusion or what has been called a ‘multiplication of ideologies’. Both the ‘subject’ and the ‘object’ are regarded as fantasies. And the postmodern concern with the ‘subject’ generates, especially in the context of the law, some fascinating accounts of the individual as moral agent, as rights-bearer, or simply as player in the legal system. Several are explicitly psychological or linguistic, with the structural psychoanalytical theories of Lacan and the poststructuralist ideas of Derrida exerting considerable influence, though, as will be suggested below, they have little utility in our quest to comprehend the nature of law.