The Critical Lawyers' Handbook Volume 1
1: Critical Legal Theory
Costas Douzinas & Ronnie Warrington
Outside or offside? Outside is the position of the judge, and the inquisitor. But academic debate has an effect. Being intra-textual does not make you extra-terrestrial.
But that is where the academic, at least in the social sciences, abandons the status of academic and becomes something more sinister, something that consciously tries to reach into thought processes, to shape them in a way that turns art, play, laughter and, yes, learning into truth with a capital T.
Hold it; let's go back. What were we saying? The responsibility? No utterances can be completely safe. Even your own thoughts, uttered only to yourself, affect your own actions and then others. So the most academic of discussions can affect the way people think and act and, in the end, what we are or may become.
But it would be quite wrong to see the postmodernism we are talking about in that way. That is because we can't draw up an agenda, a provisional programme that might help determine where all this gets us. That gets us into the reproduction of grand narratives.
What are you getting at?
That postmodernism distrusts the large-scale theories, the totalising theories that have been constructed to explain the social world. Real worlds or legal systems are not 'out there', perfectly formed or otherwise, waiting to be brought to light by theory. Postmodernism prefers provisional, small scale narratives that pay attention to different forms of speaking and writing; it listens for the repressed and oppressed dialectics that are apparently excluded but actually always within complex textual organisations. And it deliberately sets out to unsettle closed, comfortable, established systems of meaning. Marxism, for example, despite its utterly essential moral indignation and unswerving opposition to political domination and oppression, is a discourse which aspires to a total possession of an all-embracing, definitive truth. It reaches towards an understanding as complete and therefore perhaps as dangerous as any religion. But the point is, as Lyotard  puts it, society itself does not form an integrated whole, but remains haunted by a principle of opposition. That principle of opposition is suppressed in most of the major theories that have influenced the build-up of the modern world, including Marxism; it needs to be brought out again. The end of grand narratives, as it is grandly called.
Oh, of course [testily]. But that is all a bit overdone isn't it? Totalitarian regimes of thought, Enlightened, pre-Enlightened, post-Enlightened are part of the thing we are all struggling against. But grand narratives are also maybe all we can hang on to. Do we not make grand narratives of the petty, stupid, dull, little things that make up our lives? Are not we all building the most ridiculous grand narratives all the time' A student wants to write an exam script that will pass; then one that will get a first; and what then? Why does she or he want a first? 'To get the better job, the better house, car and access to better restaurants, power, sex, drugs, drink and drachmas. Is not that a desperate clinging to a sort of petty grand narrative, one in which we all indulge and are all guilty of? And isn't the same true of the cosmic global narratives that constitute a politics of the postmodern age, wherever that is, or perhaps was? A series of little or local narratives. Ecologically, environmentally user-friendly, bloody green narratives. Is that not simply another way of grand narrativising? You build up a grand narrative of little narratives and think you have escaped grand narratives and developed new politics. Have you ever met a green friend of the earth who was open to anything but green narratives? And hang everything else.
OK. But what we are talking about is not the same as dogmas. If you recognise these dreams for what they are, inevitable but dangerous turns in the form of politics (ones that can sometimes even lead to readings of genocide as a genuine human good), then surely that is a start. After this you read people, situations, events, catastrophes, books as the potentially other of what they are, or seem or desire to be. In doing this you open the tyranny of the oppressor to the discourse of the oppressed.
But do the oppressed have to construct their discourses by creating new privileged readings, in a world of increasing illiteracy forchristsake, via the master discourses, the arcane languages of some academic gurus in Paris or Yale? What do academic discourses do but produce, turn into another commodity to be appropriated and abused, the latest nothings of a new super-caste? And how new are these latest musings anyway?
That sounds like part of the general criticism that postmodcrnism merely repeats what it tries to criticise. Take a standard Marxist critique, like that of Callinicos , for example. He makes a great fuss about the fact that many modernist themes are picked up in postmodernist discourses and that they often seem merely to echo some of the debates in art, literature, theatre, and to a lesser extent perhaps, philosophy that modernism introduced. For Callinicos this seems a fundamental critique. He makes a similar point when he argues along the lines that the posties use rational argument and art, therefore, somehow merely replaying a modernist (or perhaps Enlightenment) debate. But the point, as Derrida for one continually argues, is that the critique of reason always takes place from the standpoint of reason; a point Callinicos does grudgingly acknowledge. Just as the questioning or even the rejection of the Enlightenment takes place from within the Enlightenment; similarly the development to postmodernism takes place from out of the very modernism it is reworking, and inevitably uses modernist themes to do so. Callinicos's objection is not very significant here. Again, it is not simply that there is (or maybe that there is)nothing outside of the text. It is that the text, or Enlightenment reason, makes and unmakes the possibility of our thought, of our discursive potentials. We never step outside of 2:nlightenmcnt reason not just because we lack the imagination or the will to truth, but because the outside is only set up in relation to the inside and can't exist without it. The outside is an expression of our relation with the inside. So reason cannot be critiqued without reason and it is the reason of the Enlightenment that shapes the reason that we use to critique reason. In that sense Habermas  is mistaken in his battle to save reason, or communicative competencies. He is attacking the wrong targets. There is no difficulty with all the paraphernalia of reason and the wonderful possibilities that the Enlightenment opened up. It is true that some of Nietzsche's  remarks do give the impression that he wanted to return to a sort of heroic time when men were men, before reason, before universal competition, as Marx might have put it, made Achilles the equivalent of the tortoise. But that is a poor reading of Nietzsche. A better one is to accept that reason is all we have, but that the scientific form of reasoning lauded by the Enlightenment, even if we could work out what that was, is not all there is to it. Not, then, that we want to abandon reason, but, as Hcidegger  might have put it, we have not yet learned to use reason. We have not, after all, reached the age of reason.
Yes, I suppose one thing that can be said for even the worst side of postmodernism, the celebration of global-warmed-multi-world-mass-production-identikit-Iives is that it does challenge the dangerous idea that texts can get elevated to the status of the new Capital because they embody some ultimate or scientific reason. The publication of Of Grammatology  exactly 100 years after the first Publication of volume one of Capital also symbolically brings to an end the era of capitalism as the advanced society. The tumble into the infinite repetition and consumerism of the postmodern world, something that in effect Marx is forecasting in Capital itself, with its meticulous analysis of the possibility of the endless reproduction of commodities, heralds also the elevation of the banal, the trivial and the simulation of nothing into the greatest aim society or the individual can have. Postmodernism shocks because it can lead to an absolute commitment to the mirage; in its celebration of the image, any attempt to imagine something beyond the image becomes a madness.
But you were also saying that the reading of texts and people is all that there is to it. So a postmodern reading that helps do that in a way that is liberating, whatever that may mean, must be important.
Well, what is it that is so liberating, assuming you can read? To be able to read a text differently (of course not better) results only in a different reading.
I thought we agreed earlier that even thinking differently can be important. But thinking is not an abstract matter is it? To begin with, it has to be set in a context. Or rather, perhaps, an institution; in education, or politics or prison, or the factory - perhaps the differences between these examples are so slight that we should delete them - it is the setting that is vital, or maybe successful.
Because, generally speaking, we don't think beyond the institution. All that is now possible is more of the same. The experience that counts is the one that can be repeated everywhere, at all times and in all places, which is why Marx's example of reproduction within the factory was so effective. It is the institution that reproduces the same and guarantees more of it. Including thinking. But thinking at the same time is not predetermined by any context or institution. There are boundaries, orders, but the hope is that these can be, if not removed exactly, then at least rethought. It is the possibility of rethinking the accepted boundaries of thought that is always there, despite the context, that are important.
All right, so to what does this importance relate? It relates to seeing that people and texts do more and less than they claim, that meaning, what it is we communicate, though related to those degraded but not irrelevant ideas of authorial attention and reader position or grid is air, something else, that is that in the differences between writer, text and reader there are spaces, supplements, traces, OK, which in any complex textual assembly are always capable of providing something more; that difference is both a danger and a potential liberator. In the differences, gaps, cliff edges, mazes and labyrinths, that is in the very uses of language, nothing and everything is at stake.
Spoken like a true text. But the politics of it can't just be this commitment to new, or different or open forms of reading, or discovery. What is there that the writer or speaker or body didn't realise? If postmodernism has any meaning at all for us, it relates to a different way of stating a political commitment that, in a sense, is always already predicated. Our own understanding of postmodernism is based on certain commitments, such as the denial of the authority of rules based on the exclusion of classes, races and of a specific gender - all done in the name of equality, and of disrespect masquerading as equal concern and respect; a rejection of the total triumphalism of western bourgeois values, smug and complacent at the best of times and doubly so during the collapse of so called existing communisms. In short a commitment to causes, changes, aspirations and, perhaps, even grand narratives that go beyond the disagreements over particular texts.
So postmodernism is a way of committing oneself to a form of thought, without having to grind through the analysis?
No, not exactly. If we treat Marxism as one of the discredited grand narratives, though perhaps the most significant one, as you were saying earlier, how do we proceed? Perhaps postmodernism, with its celebration (and questioning) of the cash-trash-all-nexus is merely the final triumph of a pre-Enlightenment thought.
In some time before the many bourgeois revolutions one actually had a foundation for belief - God, community, state or human nature. Modernity questioned the foundation of all beliefs, except human understanding. Modernity's crisis was caused by its own reason for being. Its foundational fait~-m in a new foundationalism - if nothing else, reason - was perceived as an unacceptable foundation; and that faith in reason came to be seen as merely a substitute for other foundational faiths which it had supposedly rejected. To that extent the new philosophers of truth, like Davidson , do have a point. But without a faith in reason it is very difficult to speak at all.
You are making a pretty good attempt.
Look, can't you just say that poverty, deprivation, the slaughter of human beings is wrong, absolutely wrong, you could even Say at all times? And what postmodernism might offer is a way of challenging the ultimate tragedy, the view that suffering, war, starvation, the grand narratives of our age, or even the results of earthquakes, let's face it, are not natural. The naturalism of our response to suffering is itself a construct of one of the cleverest, most devious, but most disastrous possible narratives. A narrative of all who say keep my place, my privilege, my power, my ability to control the space that I inhabit in the consciousness of others.
But that is precisely what we have been talking about: a cultural moment where it becomes possible to refuse the authority of this form of discourse, to deny its ability. The result can be the sort of sickening individualistic carelessness of the other that cultural postmodernism sometimes offers.
But not always.
No, though depressingly often ... But it is also a break point, a moment that may represent --
A new politics? A new narrative of domination?
A way of approaching the problem of politics as a problem. Which is exactly what the law student is about.
Deconstruction in particular actually sets itself in a very old and honourable tradition of criticism; one that says you start by reading the text carefully and that deconstructive readings of the text of law can be more faithful than those supplied by your average legal argument. What you find going on in judgements, articles and case notes is often a wilful misreading in order to put forward particular lines of development. Now what the law student learns is how to follow these creative misconstructions and misreadings that have been taken up. But they also learn not to see those others that are ignored, lost, negligently occluded. What deconstruction does is help read tests so that the lost parts, the suppressed and oppressed of the text are once again made available. They show the other possibilities, the ones the orthodox readings fail to notice. Not because they deliberately read them out -though in legal texts there is a fair amount of that too - but because they are read badly. Deconstruction as a philosophy of language is also an instruction in reading.
The point then is to assess the effect of the readings. And to do this you have to see not only how the ideas are being expressed but where they are put to work.
The context, as we were saying earlier.
Exactly. In law, for example, we can't just assume a general audience for 'law' or 'legal argument'. Judicial ideas or case law development take place in the specific environment of law courts, with the particular audiences of the judiciary and legal professions being the intended main recipients of the arguments. With doctrine, and even more se with strictly theoretical or jurisprudential discourses, the primary audience is the academy. This world, as real as any other, is the institutional setting determining the effectivity, or otherwise, of its discourse. And it is in challenging or changing orthodoxy within this world that alternative, or postmodern or Marxist academic critiques are to be assessed. Their importance lies in their effectivity, at least initially, in their chosen area of operation. The point I was trying to make before - textual analysis, especially in the academic setting, is in no sense irrelevant. On the contrary, it is the very thing that ensures effective or necessary work.
And the importance of postmodern readings is particularly interesting in a subject like law, where under the guise of an apparently oral tradition and practice -how does Goodrich put it? '... the legal tradition was based upon oratorical techniques of hearing, on aural memory ... skills of representational speech' - what is actually dominant is the Written text. Law, at least common law, is based on writing though it actually appears to be an oral matter at heart. It is reading, though, that is at stake.
Yes, much legal discussion is a prime example of Derrida's argument, is it not?
What? You mean that Of Grammatology exposition?
You remember? That in so much of Western thought, traceable to Plate, the nearest we get to authenticity is speech, which itself is only an imitation of the pure essence of thought and intention. Writing is merely the attempt to communicate when speech is not available, and is therefore twice removed from reality, from the essence of things. It s only a poor copy of speech, itself a Poor copy of the inner essence. And the Common Law replays that by insisting on oral presentations, oral evidence, oral judgements - within the Western tradition at least the closest approximation we have to authenticity, to truth. What Derrida does is question that whole debasement of writing by showing, in a certain counter-intuitive sense, that writing comes before speech, that not only is there no possible guaranteed access to authenticity via speech in a way that writing cannot deliver, but also that in a sense there is no speech without writing. The Common Law tradition therefore merely replays the fallen tricks of Western philosophy.
Don't decry it; its success is stupendous. In a sense it works. It actively convinces that the whole rigmarole of counsel, judges, witnesses, experts, all standing up asking and answering questions and speaking, actively produces the nearest possible thing we can have to a truth - finding process.
Mind you, it did get a bit of a battering in 1990 particularly. What with the Guildford Four, the Birmingham Six and the Maguire Seven.
But these are treated merely as exceptions that prove the rule. Mistakes are made but the general provision still holds: speech comes first.
And to return to the Common Law tradition, Derrida's argument works beautifully. Precedent is no longer oral memory or common inheritance; it is simply (and with the invention of data banks and the like only more so) the workings of the written tradition controlling what is supposed to be a pure oral process.
Exactly. A perfect example of the reversal of common sense and a nice manifestation of Derrida's arguments.
Of course, the standard objection is that speech actually existed or comes before writing or, at least at first blush, that seems most likely,
But that is quite irrelevant isn't it? Whichever came first in some absolute sense, whether neolithic people grunted before they drew on their caves or painted the kill before they learnt to discuss it - isn't it most likely that they developed alongside each other? - is not to the point. Crucial is that, in Derrida's reworking, what we see creating the communities we inhabit is the interpretation of written texts. Spoken text, as it were, only comes out of the written record, whilst being treated as the apparently more important, more authentic form.
Yes, just think about a law case for a moment. The summary facts, the pleadings, and the precedents all appear in written form. Counsel and judges then argue on those written statements, those cases etc. But the controlling discourses are the written ones. In the oral tradition of the common law, writing does indeed come first. Take something as basic as equity. In the technical common law sense, equity is meaninglcss without writing. Equity, the judgement of the court of conscience, followed a direct appeal to the representative of God's own representative, apparently an oral matter. But actually equity depends on writs, pleadings, judgements, orders, injunctions, in a word - documentation, all of which only make sense as written. Lawyers are therefore speakers about written matters which they themselves have already written and drafted (title deeds for example) before they are discussed and argued about in court. Law in court is an interplay between the spoken and the written, or rather an oral discourse about what was previously written, in statutes, law reports, pleadings and the like.
Which is why, almost more than any other applied theoretical discipline, law needs not just careful readers, it also requires readers who can Pull texts out of their vacuums, make the silences speak, the apparent absences appear and these texts assume context, etc. If no interpretation is exhaustive then whether or not there is an infinity of interpretations is irrelevant. It is sufficient that more interpretations become possible.
But what has this got to do with a radical politics? The right can pull out their own leftovers quite as easily.
I suppose so.
But wait - just because deconstruction and postmodernism notoriously have been appropriated by some of the most unpleasant politics of the age doesn't mean anything. It is still Possible to use it in a way the new age demands, or at least needs. Furthermore, as a critique, deconstruction has far more power than the 'misuses' [prove that] to which it has been put, especially in the US. But there is always the danger. If the history of Marxism teaches us anything it is that emancipatory discourses can be captured by the most oppressive of reactionary and brutal ideologies. But that is no reason for not struggling for those emancipatory discourses, merely a reason to avoid their misuse and to fight, textually speaking of course, for other ways of reading the world.
politics is approached like a law text - what can be read out of this
text or situation or moment - what is there that can be made to speak
that challenges the deadening orthodoxy; how can the textual Production
of this particular artifact be rethought creatively in a manner that can
be liberating? Is that it? Is that what this text/conversation that we/you
have just spoken/written/read is meant to do? Or, pedagogically speaking,
suggest is possible, or desirable?