Introduction to Critical Legal Theory

217 Pages·2004·8.546 MB·English

by  Ian Ward

INTRODUCTION TO
CRITICAL LEGAL THEORY
Second Edition
~l Routledge-Cavendish
I~
Taylor&FrancisGroup
INTRODUCTION TO
CRITICAL LEGAL THEORY
Second Edition
IanWard
BA,LLM,PhD,ProfessorofLaw
UniversityofNewcastleuponTyne
~l Routledge·Cavendish
I~
Taylor&FrancisGroup
SecondeditionfirstpublishedinGreatBritain2004by
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Introductiontocriticallegaltheory- 2nded
1 Law- Philosophy
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PREFACE
In some ways nothing has really changed since July 1998. Or at least nothing
fundamental has changed in myownapproach to the studyoflegaltheory. Iamjust
asconvincedthattheageofpositivejurisprudencehaspassed,andthatthisisa good
thing. I am every bit as persuaded by the intellectually liberating potential of
interdisciplinarity. To this extent, the tone ofthis second editionhas not changed. Of
course, there are certain substantive alternations which aim to chronicle recent
intellectual contributions to the study of legal theory. The most interesting of these
tend to relate to the emergent challenges of globalisation and the 'new' world order
within which we live. At various stages in this new edition we will encounter
jurisprudential attempts to account for these particular challenges: the revival of a
Kantian 'law of peoples', a Benthamite 'general' jurisprudence, a Derridean
cosmopolitan 'politics of friendship', and so on. There has also been a marked
evolutioninnarrativetheoriesoflawandjustice,andthecollateralideaofanewlegal
'humanism'. The thought that questions of law and justice should be understood in
termsofanexchangeof'stories' seemsevermorecompelling.ThisneweditionofAn
Introduction to Critical Legal Theory is one such story. Whether it promotes a vigorous
exchangedependsentirelyonyou.
Ian Ward
May2004
CONTENTS
Preface v
1 IDENTIFYINGMODERNISM 1
Theclassicaltradition 1
Naturallawandpoliticaltheology 10
Naturallawrevisited 19
2 THECRITIQUEOFMODERNITY 29
Themoralself 29
Neo-Kantianism 36
Theempireofintegrityandthemoraldominion 43
3 THEPOLITICSOFCOMMUNITY 51
Communitarianism 51
Thepoliticsofsolidarity 58
Rethinkingdemocracy 65
4 THEPOLITICSOFPOSITIVISM 75
Theoriginsoflegalpositivism 75
Liberty,anarchyandthescepticalmind 81
Utilityandtheevolutionoflegalpositivism 90
5 LAWANDTHEPOLITICALECONOMY 101
Thechallengeofpoliticaleconomics 101
Marxism,materialismanddeterminism 110
Neo-liberalismandeconomicanalysis 120
6 POLITICS,POWERANDPRAGMATISM 131
Thepoliticsofdecision 131
Histo~ knowledgeandpower 137
Criticallegalthinking 144
7 POSTMODERNISMANDDECONSTRUCTION 155
Thepoliticsoftheabsurd 155
Thetumtodeconstruction 164
Pragmatismandpostmodernism 174
Bibliography 183
Index 195
CHAPTERl
IDENTIFYING MODERNISM
THE CLASSICALTRADITION
The searchfor meaning
Thisbookispremisedupontheneedtoidentifymodernism,inorderthentodescribe
the various critical legal theories which have sought to revise an original model. Of
course,theunavoidableparadoxhereisthatthereisnouniversallyregardedmodelof
modernism - just as there is no universally accorded critical tradition. There are
various modernisms and various critical traditions, a number of which we will
encounterinsubsequentchapters. However, inordertoestablisha sufficientbasisfor
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 theologicalvariants,beforefinally addressingthe survivalofcontemporary
ideas ofnatural law and natural rights. By the end of this chapter, we will already
have encountered a numberofrevisionistand critical theories oflaw. 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
2000years,sotooaretheoriginsofcriticallegalthinking.
TheearliestrecordedlegalcodeisthatofHammurabiofBabylon,whoruledfrom
2067-25 BC. Greek legend records lawgivers such as Solon and Dracon drafting
legislationaround 700BC. Aninterestinlegal theory isjustas ancient. Forcenturies,
lawhasbeenjustifiedinphilosophicalterms: in terms ofan intrinsic rationality. Law
is rational, and because of that, justified. In making this claim, philosophers have
necessarilyalignedlawwiththetruth. Inotherwords,theyhavejustifiedlawinterms
of its foundation in some sort of supreme truth. As we shall see in this chapter, for
Plato,itwillbea truthinnaturalorder,whilstforAristotle,itwillbea truthinmoral
virtue, and for Aquinas, a truth inGod. Classical Greek philosophycould notaccept
that life had no meaning. The very earliest civilisations tended to found their social
lawsandcustomsinformsofdivinityandassociatedfertilitycults.Thefirstorganised
churches, established by the Orphics, were devoted to the cult of the Thracian god,
Bacchus.Forthem,theonlymeaninginlifewaspleasure,andmoreparticularlysex.
The search for 'essence' intensified with the pre-Socratics. It was they who first
wondered whether there might notbe more to life than sex. Thales ofMiletus, alive
during the 6th century BC, was convinced that everything was made of water.
Another Miletian, Anaximander, canbe termed the first legal philosopher, in thathe
decided that justice was the essential intellectual concept, and could be proved in
naturalorder.Stillanother,Anaximenes,decidedthateverythingwasmadeofair,and
spentmostofhislifetryingtoprovethattheworldwasshapedlikearoundtable.The
evolutionofpre-Socraticideastendedtoprogressinthisway- mixingtheperceptive
insight with the bizarrely improbable. Heraclitus of Ephesus concentrated on death
and struggle, and concluded that theessentialexperienceoflife lies inexterminating
someone else. Suchpessimism finally ledhim to declare that 'The cosmos, atbest, is
2 IntroductiontoCriticalLegalTheory
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
organiseoursocialinstitutionsinsuchawayastopreventinnovation.
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,therewere230,000slaves. Pericles'sdemocracyextendedparticipatorypower
to a select number of essentially aristocratic citizenry, and no further, and it is
Pericles'sAthens which provides the immediatehistorical contextfor both Plato and
Aristotle. In 429 BC Pericles died and was succeeded by radical democrats, and a
periodofintermittentcivildisorder.ItwasamidstthispoliticalchaosthatPlato'sgreat
mentorandteacher,Socrates,wasexecuted,andtherecordedaccountsofhistrialand
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. Itwasintrinsicallyrighttoarticulatethetruthand,beingnecessaryforthegood
orderofsociety,couldneverbeunjust(Plato, 1969,pp51-52,60-64).Socrates'sdeath
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 todie inthecauseofhisphilosophy. Itwasa matterofintegrity,and tohave
runawayandavoiddeathwouldhavebeentoadmitthatphilosophicalprinciplewas
not of ultimate importance. Preservation of the body is a mere distraction, when
comparedwiththepreservationoftruth.Moreover,itwouldalsobreakhisagreement
withthesocietyinwhichhelived.IfSocrateshadevadedthelaw,hewouldhavebeen
conceding that the individual interestcould sometimescome above thatofthe State.
To have evaded the law would indeed have rendered him guilty as a corrupter of
youngminds(Plato,1969,pp89-95).
Lawand orderin Plato'sRepublic
Plato's Republic, written around 375 BC, was composed as a paean to Socratic moral
andpoliticalphilosophy,andatitsheartcouldbefoundtheconceptoforder.Itwasan
immediatelyjurisprudential gesture, for it is ~justice' which assures order (Grayling,
2003, pp 24-25). Good order is just and disorder is unjust. There are three essential
themesinRepublic: theconstructionoftheidealcommonwealth;theroleofeducation;
andtheroleanddefinitionofphilosophy.Moreover,eachbookofRepubliccontributes
to the descriptionofa utopiansociety. Everyphilosophyaspires to describea utopia.
Philosophyfoundspolitics,anditiscrucialthatthisorderisnotreversed.Indeed,this
notion of ideal form, which we then aspire to emulate in reality, was Plato's core
philosophicaltenet,andpresentedasacountertothesuggestionthatjusticeissimply
a matterofdealingwitheachsituationas itarises. ForPlato,therearesupremerules
whichcanandmustbeusedintheresolutionofeverysituation.This~theoryofforms'
isfounded onhis distinctionbetweenknowledgeand opinion. Knowledgesimplyis,
and isquiteapartfrom ourperceptionorsensationofit. Oursensationofknowledge
is opinion. Ideas, accordingly, simply are. Our perceptions of ideas are our
Chapter1:IdentifyingModernism 3
approximations of them, founded upon opinion. This basic thesis is described by a
series ofmetaphors, ofwhich the Cave metaphor is perhaps the mostfamous. Plato
describes a situation where a number ofprimitive cave dwellers are bound together
facingawalluponwhichaseriesofshadowsplay.Theshadowsare,ofcourse,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
societyisonewhichmodelsitselfuponthelightandideal,ratherillusionandshadow
(Plato,1987,pp316-21;cfMacIntyre,1967,pp44-45).
Plato's ideal society is fashioned with this philosophical model in mind. At the
sametime,thereisanessentialcongruencebetweensocietyandself.Theidealsociety
isconstitutedbyidealindividuals.Weaspiretobegoodasindividualsbecausethatis
how we can contribute to the good ofsociety, and we will do so because we willbe
educated in an understanding ofreason. We can then aspire to excellence, which is,
indeed, the duty of the good person. For Plato, then, justice lies in the perfectly
orderedsociety,populatedbyperfectlyorderedindividuals,andtheinterestoftheself
and ofsociety are as one. The ideal commonwealthis determinedby its good order,
and this order is natural and metaphysical, which means it exists external to the
individual. The metaphysical world and itsorderexist,whetherornotyouand I do,
andanythinginaccordancewiththisorderisjust.Understoodinthissense,justiceis
the 'highest category' of good to 'which everyone who is to be happy' must aspire
(Plato, 1987,pp 75, 103).Andbecauseweareallrationalbeings,we mustnecessarily
share this aspiration. Justice has nothing to do with equality or fairness. Neither,
accordingly, dojustlaws.Justlawsconstitutegoodorder,mirroring,orattemptingto
mirror,theidealsofnaturalorder.
This basic idea underpins the various constituents of the ideal republic which
Platoproceedstodescribe. Mostimportantly,therearethreekindsofcitizen:artisans,
who provide basic material needs and constitute the commoners; soldiers, who
defendsociety;and rulers,whoadministersociety. Thesethreekindsmirrorthethree
divisions of the soul. The first of these is the rational, and it is the rulers who are
supremelyrational. Thesecondisthespiritualoragent,anditisthesoldierswhoact
asagentsoftheState.Thethirdistheappetitive,anditistheartisanwhoalltoooften
abandons all reason and indulges in wild desires. The class of each individual is
determinedby which partofthe soul is dominant, and itis therefore verynecessary
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,justiceis everyone 'mindingone'sownbusiness'
anddoingthetaskbestallottedtothemintermsofthenaturaldispositionofthesoul.
In this way, there will also be perfect harmony between ruler and ruled, State and
society,so'theindividualmanisjustinthesamewayastheStateisjust' (Plato,1987,
pp204,218).Atalltimes,then, Platoisdescribinga societydefinedbyorder. Sex,for
example, should be harmonic, perfect in form, and in the service ofthe 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,incaseparentalrelationsintrudeuponanappreciationthateveryone'sfirst
dutyistotheState,childrenshouldberemovedfromtheirfamilies andrearedbythe
State. Inferiororcrippledchildren,plainlylackinginperfectform, are tobebanished
(Plato,1987,pp237-41).
4 IntroductiontoCriticalLegalTheory
The idea ofeducation is essential,necessaryfor the purpose oftraining 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,
decorumand courage,andmostcertainlydiscouragedfrom laughter. Nothingcanbe
more disruptive to naturalharmony thanjollity. Poets and artists who soindulge 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 'impossibleamongthe commonpeople'. Education isessential
for the guardianclass, and Plato's ultimate ideal is for a philosopher-king- someone
supremelycapableofrule, preciselybecauseheissupremelyeducatedintheintrinsic
relationofjusticeandharmony.
Realising this ideal is essential,because 'the societywe have described cannever
growintoa reality'until'philosophersbecomekingsintheworld'.Suchkingsarelike
'kingbeesinahive...betterandmorefullyeducatedthantherestandbetterqualified
tocombinethepracticeofphilosophyandpolitics'. Itistheywhowilllegislateforthe
benefitofthe'societyasawhole',using'persuasionorcompulsiontouniteallcitizens
and make themsharetogetherthebenefitswhicheachindividuallycanconferonthe
community'. Moreover, 'itspurpose infostering this attitude isnotto leaveeveryone
to pleasehimself,buttomake eachmana linkintheunityofthewhole' (Plato, 1987,
pp263,289,323-24).Sucha ruler, Platocalculates,willbeprecisely729timeshappier
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 totheexterminationofallothers,and suchpolitiesarecharacterisedbya
lackofprinciple,orderandjustice(Plato,1987,pp377-91,415).
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 inRepublic- the theoryof
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
whomenjoya sunnyclimate,good watersupplyand a happydisposition. Thereisa
comprehensive State religion, and all property is inalienable, staying within the
family. This way, no one should squabble about theological matters, possessions or
climacticdisadvantage.Thethreatofwealthandpropertyisparticularlyacute. '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
andcommunalfeasts.Suchpartiesareallpartoftheeducationofthegoodcitizen.So,
onceagain,ismusic. ThegreatmistakeinEgyptiansociety,Platoconfidentlyadvises,
is a failure to educate people in the importance of musical harmony (Plato, 1970,
pp63, 91-92, 116). Sex is again paramount, and Plato enhances the various ways of
ensuringidealprocreationadvancedinRepublic,addinga seriesofinsights,including
the importanceofprohibitingcopulationwhilstdrunk(sobyimplicationmuchofthe
time inMagnesia). Chastityisnot in thebestinterestsofthe community,and anyone