The ‘politics’ of British Critical Legal Studies

Chris Lloyd

Senior Lecturer in Law, Oxford Brookes Univeristy

It is perhaps disguised by other aspects of the article’s title, but ‘Derrida’s Law: The Socio-Historical and the Meta-Ethical; La and la politique’ can easily be read as an engagement with the ‘politics’ of critical legal studies. Or, one could view the article as an engagement with what (critical) legal scholars are attempting to achieve in their research and what limits might be imposed by the use of certain methodologies therein. This blog, which I am delighted to contribute to, has provided me with the opportunity to illustrate these and other elements of the article in a way which is accessible aside from a full reading of the work. However, in order to familiarise the reader with the ‘politics’ of critical legal studies I must ask for their patience, albeit brief, as an introduction to this topic begins with a short genealogy (which could in fact serve as a preface to the article itself).

Roberto Unger recalls that the original wave of ‘critical legal studies’ which was rooted in the law schools of the United States in the ‘mid 1970s’ through to ‘the late 1980s’ [1] had two broad and connected aims: the first was to attack the neo-formalism which was pervasive in legal thought, which Unger called ‘the method of reasoned elaboration,’ [2] and the second was to develop from this attack, in ‘an aftershock of American legal realism,’ ‘a state of well-known left-leaning beliefs.’ [3] Despite this movement fading in the 1990s it had blazed a trail and encouraged an invigorated and resilient wave of legal scholarship to take root in the early 1980s: ‘British Critical Legal Studies.’ [4]

This inoperative community of scholars has grown and fostered a second generation of scholars, and in doing so this wave of legal scholarship has long outlasted its predecessor. [5] In turn, this wave of scholarship has gone through its own transformations and developments in the 30 years, or so, of its existence, [6] with Costas Douzinas commenting that there have been three distinct movements: ‘the epoch of aesthetics,’ ‘the period of ethics,’ and ‘the age of politics and resistance.’ [7] In 2017, we are in the midst of the third age: ‘For the BritCrits, aesthetic and ethical concerns remained methodologically strong. But the collapse of the new world order led to a distinct turn to a politics of resistance.’ [8] Consequently for the ‘BritCrits,’ since the global upheaval of protests, insurrections, and revolutions in 2010 (both political and economical) there seems to have been a waning engagement with the ‘aesthetic’ or ‘ethical’ engagement of law. As Daniel Matthews and Scott Veitch have commented:

How things have changed. Today, the textual paradigm [epoch of aesthetics] of legal critique can now only be seen in a crepuscular light. Guided by ‘new materialisms’ of various stripes, critical jurisprudence has turned towards a burgeoning interest in the law’s spatial, material and affective dynamics. This shift in ‘key’ is not only a reaction against the seemingly exhausted modes of thought and interpretation developed by Derrida, Foucault, Lyotard et al, but also answers to significant changes within our underlying social, technological and economic conditions. [9]

Given this third movement, the work of Jacques Derrida, which was nothing short of pivotal during the first two waves of BritCrit scholarship – ‘We adopted as our motto Jacques Derrida’s statement in the “Force of Law” that while the law is deconstructible, deconstruction is justice’ [10] – has now been labelled as not being capable of making political comment on juridical issues, or as not being political enough. Now, this is not to lament the valuable and relevant ‘hot topics’ which have emerged since the tremendous geo-political events of ‘9/11’ in 2001 and the global financial crash of 2008: the jurisprudential thought of Carl Schmitt, the topics of biopolitics and border security, affect, spatiality, and new materialism. However, the waning of Derrida can be explained, perhaps rather curiously, by reference to two very specific ontological classifications of the modes of political existence.

The two classifications are, firstly, ‘the political,’ le politique, which means ‘the site where what it means to be in common is open to definition, and secondly, ‘politics,’ la politique, which refers to ‘the play of forces and interests engaged in a conflict over the representation and governance of social existence.’ [11] Essentially, ‘the political’ is the ground, composition, or relation upon which society rests and ‘politics’ thereafter is the day-to-day events which consequently unfold from that relation. And the curious charge made against Derrida is that his work cannot move from le politique to la politique, even though he was instrumental in creating this division and establishing the ‘retreat’ towards an invigorated concern for le politique away from la politique. [12]  This ‘retreat’ itself became crucial to the political philosophy of Philippe Lacoue-Labarthe and Jean-Luc Nancy, with the former declaring: ‘I believe profoundly in the necessity of the ‘‘retreat of the political.’’’ [13] Indeed, as the BritCrits Matthew Stone, Illan Wall, and Douzinas have commented, Lacoue-Labarthe and Nancy retreated from a focus on ‘politics’ (la politique) because this mode had been saturated by ‘the machinations of parties, ministers and lobbyists,’ the development of ‘social and economic conflict into a matter of accountancy,’ the imposition of ‘ideology into calculated party manifestos,’ and the presence of a totalising ‘façade that would cover real political divisions.’ [14] In short, the retreat to ‘the political (le politique) was executed to produce ‘a renewed contestation of the very terms and structures of political discourse and action.’ [15]

It is upon this division that the article engages with those legal scholars, particularly socio-legal scholars publishing in Social & Legal Studies, who have argued that Derrida’s methodology of deconstruction remains lodged firmly in le politique and is unable to have any impact upon la politique. That is, deconstruction is not relevant to the legal ‘socio-historical’ but rather only the legal ‘meta-ethical.’ Accordingly, their argument posits that in terms of the ‘politics’ of critical legal studies, deconstruction is adrift from having any relevance to the concerns of social justice or indeed the ‘here and now’ of cases, juridical decisions, and the affects of the law: in short, ‘politics.’

The article’s thesis, as a retort to this argument, seeks to achieve several aims. It firstly seeks to rescue Derrida’s work from the accusation of apolitical nihilism where it is lies bereft of any impact on the ‘socio-historical,’ or the ‘politics,’ of the here and now. Beyond this, the second aim is to do justice to the fierce ‘politics’ which did emanate from Derrida’s own work and the body of work influenced by his thought, whether this be anti-ethnocentric studies, post-colonial theory, feminist theory, abolitionist theory, or critical engagements with ‘the War on Terror.’ And perhaps by proxy, one may want to read the article as also injecting a consideration of la politique back into the first two waves of BritCrit theory which are now seen to be so maligned and passé. The article makes its retort via two interconnected parts. It firstly reads Derrida’s seminal essay ‘Force of Law: The “Mystical Foundation of Authority”’ as illustrating that deconstruction cannot but engage with la politique in the setting of juridical studies, even though it does nevertheless also simultaneously engage with issues of le politique. Secondly, the article then revisits the history, development, and complications which are associated with the division between la and le politique. This recollection shows how even though Derrida’s deconstructive thought was pivotal in establishing these two divisions, it was nevertheless the case that his work also undid the divisions in question:

Now, if Derrida thus hesitates to engage himself in immediately political questions (if he does not politicise his thinking), he nonetheless affirms that his practice is political, that philosophical activity is, in general a political practice. [16]   

Chris Lloyd is a Senior Lecturer in the School of Law at Oxford Brookes University and has research interests in critical legal scholarship, feminist legal studies and the relationship between socio-legal and critical legal studies.  Chris is the author of ‘Derrida’s Law: The Socio-Historical and the Meta-Ethical; La and Le Politique’ (2017) 26(2) Social & Legal Studies 208-229.

Chris’ article is currently free-to-view

Image credit: CC0 Public Domain, https://pixabay.com/en/abstract-art-backdrop-background-1850417/

 

Notes

[1] Roberto Mangabeira Unger, The Critical Legal Studies Movement: Another Time, A Greater Task (London/New York: Verso, 2015), 24.

[2] Ibid., 5.

[3] Ibid., 43.

[4] See as introductory reading, Peter Fitzpatrick and Alan Hunt ‘Critical Legal Studies: Introduction’ in Peter Fitzpatrick and Alan Hunt (eds.) Critical Legal Studies (Oxford: Basil Blackwell, 1987), 1–3.

[5] See Matthew Stone, Illan Wall, and Costas Douzinas ‘Introduction: Law, politics and the political’ in Matthew Stone, Illan Wall, and Costas Douzinas (eds.) New Critical Legal Thinking: Law and the Political (Abingdon: Routledge, 2012), 1–7.

[6] Note that the most recent Critical Legal Conference ‘Turning Points,’ hosted at Kent Law School, 1st–3rd September 2016 referred to the fact that ‘the CLC returns the University of Kent where it first took place 30 years ago.’ See Kent Law School, ‘About the CLC,’ available at https://www.kent.ac.uk/law/research/clc-2016/about.html.> accessed 6th July 2017.

[7] Costas Douzinas, ‘A Short History of the British Critical Legal Conference or, the Responsibility of the Critic’ (2014) 25 Law and Critique 187–198, at 190.

[8] Ibid., 193–194.

[9] Daniel Matthews and Scott Veitch, ‘The Limits of Critique and the Force of Law’ 27 (2016) Law and Critique 349–361, at 350.

[10] Douzinas (n. 7) 191.

[11] Christopher Fynsk, ‘Foreword: Experiences of finitude,’ in Jean-Luc Nancy, The Inoperative Community (Minneapolis and London: University of Minnesota Press, 1991), vii–xxxv, at x.

[12] See Phillipe Lacoue-Labarthe and Jean-Luc Nancy, Les Fins de l’homme: À Partir du Travail de Jacques Derrida (Paris: Galilee, 1981), 527.

[13] Philippe Lacoue-Labarthe ‘‘Political’ seminar: Contribution II,’ in Simon Sparks S (ed.) Retreating The Political (Oxford: Routledge, 1997), 95.

[14] Stone, Wall, and Douzinas (n. 5) 3.

[15] Ibid.

[16] Christopher Fynsk, “Political’ seminar: Contribution I,’ in Simon Sparks (ed.) Retreating The Political (Oxford: Routledge, 1997), 88.

 

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