Engineering the Law and Justice Deconstruction

In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda “law is politics.” This article suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls “dedifferentiation,” where no distinction – and hence no relation – seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The article then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in “the political”; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.

International Journal of Criminology and Sociology, 2012

This paper is concerned with the dialectical relationship of law and culture. Recent academic work in the sociology of law positions such a relationship within a concept of power, specifically the power of law/culture to render the world meaningful not only in reciprocally constitutive ways but also in mutually deconstructive ways. While this kind of scholarship moves us some way beyond accounts which insist on law and culture as autonomous realms of human experience, it has created a context of consensus which is largely uncritical of their relationalities. Whilst not denying moments of creative synergy which emerge in productive and positive relations of mutuality, this discussion reopens old antagonisms, and revisits law/culture as an ongoing contest and a dichotomous struggle over meaning, interpretation and judgement. I make use of a (familiar) Foucauldian vocabulary to delineate three modalities of power-sovereign, disciplinary and discursive-and use this as a framework for critically interrogating how law/culture stages different kinds of politics, which have varying effects in the broader political field of 'justice'. The paper concludes by arguing for both a modified and an intensified approach to power which builds on the conceptual insights of an eclectic body of contemporary political theoretical work.

1982

In recent years progressive critique of the legal enterprise has derived from two principle sources: the legal realist and Marxian traditions.1 Succinctly expressed, these traditions have rejected the law's claim to objectivity. The legal realists have argued that legal decision-making involves not formal, deductive logic but subjective choice; any legal choice made is never logically compelled.2 In the Marxian tradition the objection has been not so much that the law is imbued with values, but that the distribution of legal outcomes is skewed to particular values, particular interests; the law reflects dominant economic interests.3 Stated this simply, the views of the two critical legal traditions may be subject to as much rhetorical denunciation as affirmation. In contrast, one of the key merits of the articles collected in The Politics of Law* is that discussion is moved to a fundamentally different plane. In consonance with a growing movement in the social sciences, these es...

Hague Journal on The Rule of Law, 2019

In March 2009, Chief Justice Iftikhar Chaudhry and several other deposed judges were restored to the Supreme Court of Pakistan as a result of a populist movement for the restoration of an independent judiciary. The Supreme Court of Pakistan has since engaged in judicial activism that has resulted in a clash between the judiciary and the elected executive and has brought the distinction between the Rule of Law and the judicialization of politics into contestation. This Paper deconstructs the philosophical debates over the meaning and relevance of the Rule of Law in order to show that the claims to universal applicability, neutrality and inherent value implicit in the dominant modes of theorizing about the Rule of Law are hollow. The deeper concern animating these debates is not the desire to draw hard lines between " law " and " politics. " However, abstract Rule of Law contestations have limited value and relevance, when divorced from the political, constitutional, and sociological context. Only a sharper understanding of the nature of the special politics of law and the specific contexts (of constitutional law, state structure, social, and economic life-forms) shall enable a better understanding of the ever-increasing resonance of the Rule of Law, especially in the Global South.

Political Studies Review, 2013

Contemporary Political Theory, 2005

The paper asks: how it is that the rule of law has risen up the political agenda? This question is related both to structural issues, such as the rise of specific forms of economic organisation, but also the various groups which have fostered and promoted the rule of law in national and global contexts, from lawyers to professional political actors, from programmes of foreign aid towards democracy building, to technical assistance around WTO accession. In this it rejects the passive and evolutionary account of the legalisation of global politics that sees the rise of the rule of law merely as the progressive rationalisation of complex politics. The paper’s analysis seeks to identify and specify agents and drivers of this development of the manner in which interaction in global society is understood as a social process. Therefore, to this end, I offer a discussion of the professionalization of politics and the rise of legally trained actors in significant sectors of (global) politics, as well as exploring the manner in which specific forms of global governance have involved the expansion of the rule of law as an international norm. This leads to a discussion of the role of lawyers in the global political economy and the expansion of the legal mind-set to new realms of global politics, focussing on the relations between legal regulation and the cultural commitment of the social (contracting) parties involved. The paper concludes that the rise of the rule of law norm and thereby the legalisation of global politics is not a natural or self-propelling process but is rather driven by actors and interests, and as such reflects a contingent history of political economy.

SSRN Electronic Journal, 2013

Israel Law Review, 2001

The connection between law and contemporary social science emerged as a consequence of the quest for social reform. As law became more instrumental, it also became more empirical, more concerned with policy. For this process, it turned to social science. Social science complied and has become an adjunct to law in the quest for solving social problems. As this partnership has developed, the relationship between law and social science has matured. Not only has social science sought to educate and influence law, it has also incorporated law into its own disciplinary concerns. Furthermore, the field of socio-legal studies may be on the verge of establishing itself as a separate and distinct discipline, independent of the practical concerns of law.The scholarly intersection of law and social science — or socio-legal studies, as I shall call it — now speaks with at least three voices addressed to at least three audiences. It speaks as policy analysis, a handmaiden to law. It also speaks i...