Friday, March 06, 2009

Critical legal theory and cognitive dissonance

Sorry I haven’t updated in a while, but I really feel like I’ve been struck by the curse of bloggers’ block – I literally just couldn’t think of anything interesting to say. I’ve also been trying to read through Arendt’s the Human Condition, which although good, is one of those books that contains an important(ish) observation on every page, and so has to be read fairly closely.

But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.

Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.

But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?

On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:

People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values … In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third, man as an egoistic economic subject. All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged. If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.

On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:

As such it is necessary not to conflate morality and legality. As we have seen the individual, in practice, need have no knowledge of the specific legal norms which regulate his social activity. Indeed the “ordinary” man cannot know the law in all its detail for then he would be no ordinary man at all but a “lawyer”. On the other hand however the law must know the ordinary man and the conditions of his (moral) existence. The law constitutes the ordinary man in the abstract as the “reasonable man”, the “man on the Clapham omnibus”. It is in that sense that the law and juridical/positive morality together specify historically the mode in which the juridical relation is realised in a particular social formation.

We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.

Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:

[I]t is possible to argue that juridical theories are actually produced by the law itself. It might be possible to have a society where rules were established and obeyed for reasons of convenience, changed in an ad hoc manner when seemed desirable, and regarded generally as tools of exclusively utilitarian significance. Such a society would not possess a legal system of the type which interests Pashukanis, or of the type of which we are familiar. The legal order of a liberal, or bourgeois, society is thought of as a more or less consistent and coherent body of rights. Even if the law is thought of in terms of rules, the rules are assumed to be coherent. Contradictions between valid rules are regarded as impossible in principle, and a major task of juristic activity is the dissolution of any apparent contradictions … [I]t can be argued that the notion of the subject as an immobile bearer of rights is itself linked to the presupposition of consistency and coherence within the law … Bourgeois law contains within itself … a continuing pressure for increased coherence … This pressure for increased coherence means that bourgeois law produces juristic theory as fire produces smoke. The search for coherence and consistency at some point reaches a level of abstraction where the enterprise comes to be regarded as “legal theory” rather than “legal doctrine”.

Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).

Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.

So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:

[A] communicative challenge. How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?

So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.

As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.

So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).

Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.

So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.

Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.

[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]

Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135

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