Critical Theory And The Nature Of Law

My graduate seminar on ‘The Nature of Law‘ read and discussed critical race theory this past week. I’ve–along with my students–been thinking about the relationship of critical material like this–along with the critical legal studies readings we did over the last two weeks–to the definitional and foundational debates that so occupied us in the beginning of the semester. Certainly, we seemed to be distant, in our concerns and preoccupations, from the question of what law is ‘–at least in the way that, for instance, the folks engrossed in the natural lawpositivism debate were. In one dimension. For instance, precisely because critique seizes upon normative failings, we were often discussing what the law ought to be as opposed to what it is. But in another, we aren’t.

For note that in providing the sort of critique critical race theory and critical legal studies are advancing,  the kind that informs us it is an agent of social construction and reification, an instrument of ideological control, a diversion away from radical political and social change, toward change more palatable to the established orders, we are also being told a great deal about what the law is not. It is not an impartial dispenser of justice, and neither is it a reliable instrument of social change. The critical race theorist is able to remind us of law’s limitations and circumscriptions: the inability of its remedies to redress some kinds of particularly pernicious wrongs, its helplessness in the face of entrenched, ‘internal’ racism, the kind which deeply implicates every social, political, and economic reality it interacts with, its being frozen into accepted trajectories of reasoning and categorization that prevent it from playing the kind of role most optimistically envisaged for it by a certain species of liberal theorizing. For instance, the critical race theorist’s advancement of an argument for reparation shows how current legal reasoning and analysis is inflexibly locked into presumptive modes of inquiry and understanding about guilt, responsibility, and even the ontology of groups and persons, that lead to a reflexive rejection of such claims. Law constructs many social facts, and there are many others that construct it in turn.

The critical theorist also–most crucially–adds color and depth to the earlier bloodless debates about whether law is understood as a system of rules, the command of a sovereign or the imperfect realization of a social morality. Critical theory informs us that the identity, the placement within social and political orderings and hierarchies, of legal actors–and those subject to them–is a crucial determinant of the content of law; it is a crucial force in determining the trajectories and workings out of a legal system. (Feminist legal theorists, who we will begin reading in two weeks time, will obviously bolster such identification.)

The nature of law remains crucially undertheorized unless its definitions are bolstered by critique. For it is only by means of the latter that the history of law can be seen and examined. And that, of course, is how we bring its coherence and incoherence to light.

Arendt, the Problem of ‘The Absolute’ and Revolutionary Fascination by Antiquity

There are many, many remarkable passages in Hannah Arendt‘s On Revolution, which forms part of my reading list for this fall semester’s Political Philosophy seminar. In particular, there is a profusion of them in Chapter 5, ‘Novus Ordo Saeclorum’. Here Arendt offers an analysis of the problem of legitimacy of post-revolutionary government i.e., the problem of ‘the absolute’, which confronts any system of power that dispenses with transcendent and transhumane sources of sanction (like those relied upon by the Church and monarchies) and concentrates on seeking foundations in the secular, the mundane, the profane, the earthly, the human. Arendt, in attempting to show how this problem might have been addressed by the American revolutionaries, goes on to note the inspiration that Roman antiquity provided to American and French revolutionaries alike, and provides an understanding of ‘revolution’ as ‘restoration’; it is a treatment remarkable both for its erudition and insight and should be required reading for any student of political theory. This chapter should be required reading, too, in any Philosophy of Law course for the keen understanding it displays of the natural and positive law debates. The relationship of law to political power, which is often missing in standard philosophical takes on these, is front and center in Arendt’s analysis.

I hope to write a more detailed analysis of this chapter sometime soon; for now, here is a tiny sampler, one which picks up on the perplexity that might be occasioned by noting the enthusiasm revolutionaries had for the ancients, and which, I think, is still relevant, as is most of Arendt’s analysis, for our day and age:

It has often been noticed that the actions of the men of the revolutions were inspired and guided to an extraordinary degree by the examples of Roman antiquity, and this is not only true for the French Revolution, whose agents had indeed an extraordinary flair for the theatrical; the Americans, perhaps, thought less of themselves in terms of ancient  greatness – though Thomas Paine was wont to think ‘what Athens was in miniature, America will be in magnitude’ – they certainly were conscious of emulating ancient virtue. When Saint-Just exclaimed, ‘The world has been empty since the Romans and is filled only with their memory, which is now our only prophecy of freedom’, he was echoing John Adams, to whom ‘the Roman constitution formed the noblest people and the greatest power that has ever existed’, just as Paine’s remark was preceded by James Wilson’s prediction that ‘the glory of America will rival- it will outshine the glory of Greece’. I have mentioned how strange this enthusiasm for the ancients actually was, how out of tune with the modern age, how unexpected that the men of the revolutions should turn to a distant past which had been so vehemently denounced by the scientists and the philosophers of the seventeenth century. And yet, when we recall with what  enthusiasm for ‘ancient prudence’ Cromwell’s short dictatorship had been greeted even in the seventeenth century by Harrington and. Milton, and with what unerring precision Montesquieu, in the first part of the eighteenth century,  turned his attention to the Romans again, we may well come to the conclusion that, without the classical example shining through the centuries, none of the men of the revolutions on either side of the Atlantic would have possessed the courage for what then. turned out to be unprecedented action. Historically speaking, it was as though the Renaissance’s revival of antiquity that had come to an abrupt end with the rise of the modern age should suddenly be granted another lease on life, as though the republican fervour of the short-lived Italian city-states – foredoomed, as Machiavelli ,knew so well, by the advent of the nation-state – had only lain dormant to give the nations of Europe the time to grow up, as it were, under the tutelage of absolute princes and enlightened despots.

However that may be, the reason why the men of the revolutions turned to antiquity for inspiration and guidance was most emphatically not a romantic yearning for past and tradition. Romantic conservatism – and which conservatism worth its salt has not been romantic? – was a consequence of the revolutions, more specifically of the failure of revolution in Europe; and this conservatism turned to the Middles Ages, not to antiquity; it glorified those centuries when the secular realm of worldly politics received its light from the splendour of the Church, that is, when the public realm lived from borrowed light. The men of the revolutions prided themselves on their ‘enlightenment’, on their intellectual freedom from tradition, and since they had not yet discovered the spiritual perplexities of this situation, they were still untainted by the sentimentalities about the past and traditions in general which were to become so characteristic for the intellectual climate of the early nineteenth century. When they turned to the ancients, it was because they discovered in them a dimension which had not been handed down by tradition – neither by the traditions of customs and institutions nor by the great tradition of Western thought and concept. Hence, it was not tradition that bound them back to the beginnings of Western history but, on the contrary, their own experiences, for which they needed models and precedents. And the great model and precedent, all occasional rhetoric about the glory of Athens and Greece notwithstanding, was for them, as it had been for Machiavelli, the Roman republic and the grandeur of its history.

Note: The problem of the absolute is a familiar one: it appears in another form in discussions of the foundations of ethics, in the problem of finding an absolute authority to back up moral obligations when belief in divine commands is lacking; in The Brothers Karamazov it is what perplexed Dimitri when he heard Father Paissy recount Ivan’s argument that immorality follows without belief in immortality.