Deconstructing the Law: The Politics of Law (original) (raw)
Law as Politics: Four Relations
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.
Challenging the Rule of Law Universalism: Why Marxist Legal Thought Still Matters
Law and Critique, 2022
The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law.
The Political Content of Legal Theory
Philosophy of the Social Sciences, 1987
Reading Hans Kelsen in the light of modem social and political theory, one is struck by how strange some of his ambitions seem. There is an unworldly air about his quest for a pure theory of law, one which 'describes the law and attempts to eliminate from the objects of this description everything that is not strictly law' and which aims 'to free the science of law from alien elements' .1 He wants to end the 'adulteration' of legal science by the contaminants of ethics, psychology, sociology and political theory. Of course, it is the desire of many to elaborate a legal theory which has among its criteria for identifying law only social facts and no moral arguments; that much is common ground among all legal positivists and some others as well. The oddity lies not in this but in Kelsen's restricted notion of what sort of facts may count. Purged of all sociology, psychology and political theory we end up with the mysteries of the Grundnorm and the absurd denial that there can be any sociological concept of law or the state.
Weber and Marx on law: Demystifying ideology and law ? Toward an emancipatory political practice
Contemporary Crises, 1983
In the last few years, scholars once again have looked at the relationship of law to social economic developments. Weber and Marx stand out as the most discussed key spokesmen in this recent literature. Neither of their writings, however, have been analyzed critically and exhaustivelyto the detriment of precision in recent thinking on the development of law under capitalism. This essay will first explore three problematics: the relationship between law and domination, the relationship between law and political structure, and the relationship between law and the economic system. It will then address, in part two, the question of repressive formalism [ 1 ] at both the formal level (lawmaking), as well as the substantive level-law in practice (lawfinding). There I will argue the potentially greater merits of Marxian analysis over Weberian analysis in uncovering the more subtle forms of repressive formalism in praxis, and so, too, the necessary direction for emancipatory political practice in lawfinding. Little has been written on a Weberian analysis of law and development. With few exceptions [2], Weber's analysis, notably in some two hundred and fifty pages in volume two of Economy and Society [3], has been little argued in academic circles. This essay will highlight key points in his analysis. | will then juxtapose the Marxian perspective, in its many forms, on Weber's analysis. At the outset, Weber's definition of law has it that ". .. an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity to avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose" [4]. He goes on to identify several forms of legal thought. It must be pointed out that these are "ideal-types" or, more accurately, methodological devices serving heuristic purposes that permit analysis of legal systems of concrete societies. Briefly, the structure of legal thought can be placed along two dimensions-rationality/irrationality and formal/
Research Handbook on Law and Marxism (Cheltenham: Edward Elgar, 2021)
Cosmin Sebastian Cercel, Gustavo Capela, Umut Özsu, Pablo Ciocchini, Igor Shoikhedbrod, Stefanie Khoury, Bill Bowring, Rene Keller, Nimer Sultany, Dimitrios Kivotidis, Max Ajl
Research Handbook on Law and Marxism, 2021
The first edition of this Research Handbook offers unparalleled insights into the large-scale resurgence of interest in Marx and Marxism in recent years, with contributions devoted specifically to Marxist critiques of law, rights, and the state. The Research Handbook brings together thirty-three scholars of Marx, Marxism, and law from around the world to offer theoretically informed introductions to the Marxist tradition of social critique, contemporary Marxist analyses of law and rights, and future orientations of Marxist legal analysis. Chapters testify to the strength of Marxist critical tools for understanding the role of law, rights, and the state in capitalist societies. Exploring Marxist critique across an extraordinarily wide range of scholarly disciplines, this Research Handbook is a must-read for scholars of law, politics, sociology, philosophy, and political economy who are interested in Marxism. Graduate and advanced undergraduate students in these and related disciplines will also benefit from the Research Handbook. The volume is edited by Paul O'Connell (Reader in Law, SOAS, University of London) and Umut Özsu (Associate Professor of Law and Legal Studies, Carleton University). Contributors include Max Ajl (Postdoctoral Researcher, Department of Social Sciences, Rural Sociology Group, Wageningen University & Research), Rémi Bachand (Professor of Law, Université du Québec à Montréal), Miriam Bak McKenna (Lecturer in Law, Lund University), Clyde W. Barrow (Professor of Political Science, University of Texas Rio Grande Valley), Enzo Bello (Associate Professor, Universidade Federal Fluminense, Rio de Janeiro), Bill Bowring (Professor of Law, Birkbeck, University of London), Honor Brabazon (Assistant Professor of Sociology and Legal Studies, St. Jerome’s University in the University of Waterloo), Gustavo Capela (PhD Candidate in Anthropology, University of California, Berkeley), Cosmin Sebastian Cercel (Associate Professor of Law, University of Nottingham), B. S. Chimni (Distinguished Professor of International Law, OP Jindal Global University), Pablo Ciocchini (Lecturer in Criminology, University of Liverpool), Natalia Delgado (Lecturer in Law, University of Southampton), Matthew Dimick (Professor of Law, University of Buffalo), Radha D’Souza (Reader in Law, University of Westminster), Michael Head (Professor of Law, Western Sydney University), Nate Holdren (Associate Professor of Law, Politics, and Society, Drake University), Rob Hunter (Independent Scholar, PhD in Politics, Princeton University), Talina Hürzeler (Independent Scholar, LLB, University of New South Wales), Bob Jessop (Emeritus Professor of Sociology, University of Lancaster), Rene José Keller (Independent Scholar, PhD in Law, Universidade do Estado do Rio de Janeiro, and PhD in Social Work, Pontifícia Universidade Católica do Rio Grande do Sul), Rafael Khachaturian (Lecturer in Critical Writing, University of Pennsylvania), Stéfanie Khoury (Independent Scholar, PhD in Sociology of Law, Università degli Studi di Milano and Universidad del País Vasco), Dimitrios Kivotidis (Lecturer in Law, University of East London), Daniel McLoughlin (Senior Lecturer in Law, Society, and Criminology, University of New South Wales), Eva Nanopoulos (Senior Lecturer in Law, Queen Mary, University of London), August H. Nimtz (Professor of Political Science and African American and African Studies, University of Minnesota), Paul O’Connell (Reader in Law, SOAS, University of London), Chris O’Kane (Assistant Professor of Political Science, University of Texas Rio Grande Valley), Rebecca Schein (Associate Professor of Interdisciplinary Studies, Carleton University), Igor Shoikhedbrod (Assistant Professor of Political Science and Law, Justice, and Society, Dalhousie University), Nimer Sultany (Reader in Law, SOAS, University of London), Christine Sypnowich (Professor of Philosophy, Queen’s University), and Ahmed White (Professor of Law, University of Colorado at Boulder).
This work aims to present the usefulness of the notion of ideology in the research of legal discourse. There are at least two approaches to the whole issue of the relation between law and ideology. The first refers to Marx and is useful in researching the content of law. “Young Marx’s” political ontology helps to reveal political entanglements of concrete regulations, especially those regulating private ownership. An example of such research may be the issue of “forest theft” discussed by Marx in his 1842 article. The other approach to ideology, indebted to Louis Althusser and creatively developed by Slavoj Žižek, focuses on the issue of form. The view of ideology as a material practice exposes political entanglements of the form of law (e.g. democracy, rule of law, constitution). Susan Marks’ critique of constitutionalism and democracy is an example of such an approach. To resort to the language ideological of critique, especially in the post-Soviet countries, we have to begin by legitimising our approach. In other words, we have to prove that ideology is still alive.