The Province of Jurisprudence Regenerated
The Province of Jurisprudence Regenerated
Abstract and Keywords
This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been neglected, it explores how such a pragmatic account of power recasts the practices and problems of legal theory and law. The fact is that too much jurisprudence feigns to skate on “the frictionless ice of philosophical discourse”. In contrast, it is argued that it is only against and within a jagged process of power that the workings of law and legal theory can be best appreciated and reworked.
Power is not an institution, and not a structure; neither is it a certain strength we are endowed with; it is the name that one attributes to a complex strategic situation in a particular society.
Although John Austin’s own attempts to fashion a convincing account of law’s universal nature have long been discarded, there still remains a deep attachment to the wider jurisprudential project that Austin laid out in The Province of Jurisprudence Determined (The Province). Analytical jurists continue to devote extensive energies to developing a sophisticated set of conceptual tools by which to identify law’s abiding character, refining a more persuasive understanding of the precise relation between legal validity and moral legitimacy, and shoring up the methodological foundations of the overall analytical enterprise. It is, of course, my claim that these continuing efforts to make good on this Austinian mission have been misguided and would be better abandoned entirely. However, the one aspect of Austin’s work that might be productively pursued further and more critically has been consistently ignored by modern analytical jurists. For all its one-dimensional and coarse peculiarities, Austin’s command theory of law hit upon a characteristic of law that warrants and actually demands much greater attention—the role of law as a primary process through which to establish and handle power in society.
In their haste to get beyond the confining and distorting grasp of law as a series of threats and sanctions, analytical jurists have thrown out the baby with the bathwater. If Austin placed too much emphasis on the part that coercion and force played in law’s performance and gave insufficient weight to law’s more subtle wiles, modern legal theorists have understated the extent to which law functions as an official medium for ordering society and its power relations. Moreover, even on those occasions in which attention is focused on law’s reliance on and relation with power, the tendency has been to fall back (p.144) on a simplistic understanding of power. Accordingly, in this chapter, I will offer a more expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin’s insights have been neglected, I will explore how such a pragmatic account of power recasts the practices and problems of legal theory and law. The fact is that too much jurisprudence feigns to skate on “the frictionless ice of philosophical discourse.”1 In contrast, I insist that it is only against and within a jagged process of power that the workings of law and legal theory can be best appreciated and reworked.
Guns and Poses
Few observers would deny that law’s use of and authority to rely on coercion is a notable feature of law as a mode of social control. The history of both law and legal theory testifies to the resilience and wisdom of such a trite insight.2 However, there is very little consensus on the precise role that coercion plays in law, its relation to other devices to cultivate obligation, and especially its claim to be the distinguishing feature of law. There is a world of difference between depending upon the frequent use of brute force to maintain order and the occasional reliance upon punishment as a last resort. Accordingly, although coercion is almost invariably one legal threat utilized by governing institutions in societies, its centrality to the legal process is a matter of considerable dispute. In other words, guns are part of law’s disciplinary arsenal, but it is debatable whether they are the paradigm examples of law’s authority or simply an exceptional instance of it.
The view that coercion is the decisive feature in identifying law and distinguishing it from other modes of social control, especially morality, is fairly attributed to Austin. He insisted that coercion as a display of power was an irrepressible feature of law’s nature and validity. Picking up on an existing English tradition of political theory, he concluded that “laws and other commands are said to proceed from superiors and to bind or oblige inferiors” and that “the term superiority implies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion (p.145) their conduct.”3 For him, law was a definite and indispensable tool of the ruling sovereign in order to maintain order, reinforce authority, and, where desired, effect change. As such, law was considered to be neither good nor bad in general form or institutional character; it could be used contingently for morally meritorious or demeritorious ends at the sovereign’s behest—law was authoritative, but not necessarily authoritarian. Indeed, Austin was himself committed to lobbying the sovereign in his efforts to reform the law’s content so that it more adequately advanced society’s general welfare along broadly utilitarian lines; this was better achieved by a strong, if monarchical state than by more inefficient, if democratic means. However, despite his scientific claims to the contrary (and the fact that he was led to adopt implausible conclusions that neither constitutional law nor international law was law properly so-called), Austin’s jurisprudential stance reflected and confirmed his own political and parochial agenda rather than comprise any detached reportage of law’s universal nature.4
However, in treating a legal system as a vehicle of subjection by a privileged few over a disenfranchised many through a body of coercive commands, Austin allowed an important facet of law’s historical operation to become its one and only hallmark. Although law was very much an authoritative tool wielded by rulers and backed by oft-realized threats of severe punishment, it was and is much more and much less than that. It is much more in that large parts of the legal process function without overt resort to punishment or pain; vast sectors of private law manage to work efficaciously by relying on the consensual participation of citizens and commercial entities. Yet, law is also much less than sanction-backed orders. Coercion and force are only a couple of the resources that law has at its disposal in maintaining order and establishing the authority of some over others. In modern Western societies, law works on a variety of levels and in a variety of ways; it plays a considerable part in sculpting and instantiating the extant social relations which it later and occasionally intervenes in by way of threat or sanction. As such, (p.146) law is intimately and inextricably bound up with the power relations in society at any given time. By empowering as well as disempowering in regulating and disciplining society, law has a much richer and profound existence than Austin or other similarly minded jurists allow.
Of course, as is now well known, H. L. A. Hart built his own lauded concept of law as a union of primary and secondary rules on the ruins of Austin’s law-as-command theory. Indeed, the first one-third of The Concept of Law is given over to explaining why “the model of orders backed by threats obscures more of law than it reveals” and exhibits a “general conceptual inadequacy”—criminal statutes are not representative of laws generally and apply to those who enact them; many laws confer public and private powers without reliance on threats; many laws are created without explicit prescription; and the positing of an omnipotent sovereign was not compatible with modern electoral practices and institutions nor could it explain legislative continuity.5 For Hart, therefore, the state-wielded gun is not the defining symbol of law’s claim to authority, but is a minor feature of law’s mechanism for enforcing obligation and obedience to law: Much more explanatory mileage could be obtained from appreciating the extent to which citizens cultivated a critical reflective attitude to laws and the legal system generally.
Yet, as much as Hart offered a fuller and more convincing account of law than Austin, he largely abandoned Austin’s insistence on the centrality of power. For Hart, coercion is an available, but largely secondary mode of social discipline that is relatively infrequently used to bolster or supplement people’s general inclination to obey and follow the legal system’s rules. Indeed, he comes close to leaving the impression that coercion is not a particularly important component of law’s essential nature at all. Consequently, in his efforts to broaden the concept of law, Hart allowed law’s Austinian-backed connection with coercive threats to recede to such an extent that it played only a peripheral and minor role in his concept of law. This is troubling because, whatever the shortcomings of Austin’s exclusive focus on coercion, it is little improvement to overcompensate by giving coercion no real role to play in understanding law’s operations. Even in matters of civil or constitutional (p.147) discord, the threat of state force is never far from the legal surface. Whether it is disciplining student protesters, aboriginal dissenters, political separatists, labor organizers, environmental warriors, or similar activists, the legal system and its trustees are not slow to marshal its considerable coercive forces to ensure that law and order is maintained.6
For all Hart’s endeavor, therefore, he managed to do away with Austin’s sovereign, but only to substitute it with a rule of recognition so as to better continue the positivist and analytical tradition established by Austin. In offering a legal philosophy and one which insisted on the separability of law and political morality, Hart continued the stubborn adherence to an analytical tradition in which politics and morality were not the province of jurisprudence properly so-called. Although jurists worked on matters of morality and politics, they did so on the basis that law and morality/politics were separate, if intimately related fields of study. Accordingly, although contemporary jurists have almost entirely conceded that law is about more than sovereignty and that it “embodies political power and coercion is the hard edge of power,”7 there has been little effort to push through on that basic insight. Consequently, a more convincing and democratic-oriented account of power will get beyond the role of coercion as law’s distinguishing characteristic, but only to repackage it as part of a much broader appreciation of power’s disciplinary role in legal control and organization. Whereas Hart gets beyond coercion by ignoring power’s political dynamics, I want to put those political dynamics at the heart of the jurisprudential project by demonstrating the diffuse character of power as not only enabling as well as restrictive, but also constitutive of the social relations that it seeks to affect.
A Powerful Take
Although some deny that power is an essentially contested concept and prefer to see it as “an essentially messy concept,”8 most theorists agree that power is a fundamental category of analysis in political and legal theory and have striven to understand its multifaceted operation. Following Weber’s notion that power implies “the probability that one actor within a social relationship (p.148) will be in a position to carry out his will despite resistance,”9 both the political right and left have tended to view it as a possession that can be acquired to manipulate others and be measured by a simple causal metric. Within this paradigm, the disagreement was over the ends to which power ought to be used and to suggest a justifiable distribution and exercise of power. But such accounts of power have been relatively crude and decidedly humanistic: they tend to emphasize the agential, negative, intentional, and programmatic aspects of power’s operation as an intentional attempt to dominate. Though this explanatory framework does highlight the more obvious and stark effects of power, it also serves to obscure its more subtle and pervasive dimensions.
Few commentators now hold on to an account of power that restricts itself to its overt and wilfull exercise by one person over another. A social world does not exist, if ever it did, in which Austin was able to construe law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him” and to distinguish commands from desire by “the power and purpose of the party commanding to inflict an evil or pain in case the desire is disregarded;” this is no longer a viable construct as either an actual historical context or a hypothetical situation.10 Such a view treats power as a circulating commodity that is traded in a society in which people have real and presocial wants and interests that are established and maintained outside of power’s reach. Although there are clear and obvious examples of such instances of ‘power over’ that must not be ignored or downplayed, it does not come close to capturing the multiple ways in which power exists and operates. A more sophisticated account of power is as systemic and structural as it is individualized and agential; power is less a negotiable currency than a constitutive medium.
Hart’s recognition that it was sensible in legal matters to talk about ‘power to’ as much as ‘power over’ offers a glimpse of a different conception of power’s character and operation in modern society. In establishing rules and regulations (e.g., wills and contracts), which are intended to facilitate efforts to achieve certain socially desirable ends, law functions to empower and enable individuals in their social relations among and with each other. To construe these commonplace and multitudinous legal devices as being analogous to threat-backed commands or nullification as being fully equivalent to sanctions is rightfully condemned by Hart as far-fetched and implausible.11 (p.149) As such, he was correct to point up that, even if “superiority signifies might,” “the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes” was not the sole focus of law’s claim to authority.12 However, Hart was mistaken to ignore as much as he did the role that power played in law’s privileged status in affecting others and forcing them to fashion their conduct to one’s wishes: he remained too attached to a flat and static account of power’s personality and performance.
For instance, though Hart clearly appreciated the more nuanced and diverse ways in which systems of rules functioned as channels and frameworks for directing social life, he evinced a distinct tendency to elide some difficult issues about how power functions and legitimates itself through law. He was content to observe rather cursorily that “so long as human beings can gain sufficient cooperation from some to enable them to dominate others, they will use the forms of law as one of their instruments.”13 Consequently, although Hart’s union of primary and secondary rules has a definite edge over Austin’s law-as-command in offering a better explanation of law’s essential nature, he might well have achieved this success at the considerable cost of marginalizing and understating law’s role as a power-ful medium through which to establish social relations and effect social policy making. Moreover, in depoliticizing law in this way, Hart and other analytical jurists have managed to ignore the extent and manner to which law contributes to maintaining hierarchical, patriarchal, racist, or other disciplinary and discriminatory regimes.
A more adequate and instructive understanding of power recognizes both power over and power to as important manifestations of power’s operation, but seeks to incorporate them into a deeper and constitutive account. Rather than think of power as only a commodity or thing that exists in social relations between people or organiations, it is better to understand it as a medium within which not only the agenda for problem-setting is developed, but also the interests, values, and wants of people are cultivated. In this way, power manages to constitute people’s sense of their own values and interests as well as influencing the hierarchical ordering of such values and interests: Power works by “shaping [people’s] perceptions, cognitions and preferences in such a way that they accept their role in the existing order of things, either because they can see or imagine no alternative to it, or because they see it as natural and (p.150) unchangeable or because they value it as divinely ordained and beneficial.”14 Contrary to Austin and Hart’s depiction, power is not something that can be entirely mastered or rendered completely transparent because, being as much structural as it is agential, it insinuates itself into the very institutional devices and settings within which it is utilized and deployed.
Once this more constitutive sense of power is grasped, it becomes easier to appreciate the different ways in which power works and the different levels on which it functions; it is as much disaggregated and fragmented as unified and integrated. As the context changes, power can be seen as both domineering and liberating, productive and regressive, and transformative and paralyzing. Moreover, these effects can be in play often at one and the same time. Not operating along one axis alone, people can experience simultaneously power’s presence as both liberating and disciplinary; personal or political relations, like marriage and commerce, involve tradeoffs between ‘power over’ and ‘power to’ dimensions. As a culture more than a commodity, power is no longer treated as a simple relational force that operates between people and organizations with fixed and unitary interests, but an environment that affects and alters people’s interests differently at different times. As a constitutive component in social networks or political milieus, power formulates as much as affects people’s interests whether they work to satisfy their own interests or challenge the interests of others.
This conception of power has been taken to its extreme by Michel Foucault. In a sustained critique, he contended that power is omnipresent in that it is always operating on social subjects and relations and there are no such subjects or relations free from power’s contingent performance. In sharp contrast to Austin, he insists that “there exist relations of power which are not purely and simply a projection of the sovereign’s great power over the individual, they are rather the concrete, changing soil in which the sovereign’s power is grounded, the conditions which make it possible for it to function.”15 Such an approach sees power as operating in a largely prepositional, anonymous, (p.151) non-subjective, and localized manner by nurturing and sustaining the ever-changing social network within which the agent arises and is able to act intelligibly. As such, power consists of a mobile multiplicity of force relations which, continually disaggregating and coalescing, shape themselves into shifting and incomplete strategic patterns. These matrixes help to create the individuals and organizations who use and are used by power, the needs power feigns to satisfy, and the truth in whose name power claims to speak.
Consequently, any serious effort to understand the operation and effects of power must eschew the development of a grand conceptual or analytical approach; any attempt to isolate or identify the universal ways and patterns in which power works in society fails to grasp the contingent quality of power’s workings. Instead, a pragmatic rendering of power will be attuned to its thoroughly disjunctive character and will work towards assembling rich and specific accounts of power’s functioning in particular social sites and historical settings. As Foucault himself concluded, “power’s condition of possibility … as a grid of intelligibility of the social order, must not be sought in … a unique source of sovereignty … ; it is the moving substrate of force relations, which by virtue of their inequality, constantly engender states of power, but the latter are always local and unstable.”16 From a pragmatic viewpoint, therefore, it would be folly to imagine that it might be possible to locate some transcendent set of laws or regularities which can be relied upon as a comprehensive framework to predict or control power’s effects. As with so much else, the best that can be hoped for is that experience and study will allow societies to learn from the past, muddle through as best they can, and become aware of the unexpected and multi-variant aspects of power. In so doing, a pragmatic sensibility and accompanying distrust of abstract generalizations will be a suitable complement to such a political account of constitutive power in social life.
In the remainder of this chapter, my mandate is to trace out the implications of such a powerful approach for a fresh understanding of legal theory and law. In so doing, my pragmatic ambition is to suggest how efforts to position jurisprudential study as somehow outside or above society’s extant economies of power and truth are ill fated; they tend to hide rather than illuminate the formative role of power in the constitution of law and legal theory’s historical trajectory and political slant. This inquiry will also hopefully serve as an introduction as to why a political commitment to democracy as (p.152) the most favored mode of governance is best suited to complement a powerful approach to law and legal theory.
A Knowledge of Power
Albert Einstein was fond of saying that “a foolish faith in authority is the worst enemy of truth.”17 The main gist of this warning is clear and compelling. However, when taken as a statement of philosophical intent, its assumptions about truth are suspect. As long as truth continues to be understood in the objectivist way of analytical philosophers and jurists as a detached and ahistorical standard, a pragmatic and powerful approach suggests that truth itself might also be one of those authorities in which people should not place faith, foolish or otherwise. This will entail moving beyond the traditional Baconian view that power and knowledge are ontologically separate entities: True knowledge can only be validated outside power’s corrupting influence. Pragmatists maintain that this foundational assumption is part of the philosophical problem. Indeed, a pragmatist recommends that society will be better off if it abandons entirely its false confidence in the availability of enduring truth and foregoes its extravagant attachment to epistemological authority. Too often, truth turns out to be simply another maneuver, no matter how innocent and well intentioned, to claim special authority for another contestable version of the way-the-world-really-is.
In contrast, a pragmatic powerful approach insists that power and knowledge are mutually constitutive. The inchoate protocols of power are secreted within the interstices of scientific codes of knowledge which, in turn, impinge upon and reconstitute those protocols. As a pragmatic sensibility demands, there is no universal pattern to this relationship between power and knowledge, and there is no overarching theory of this critical relation: It is necessary to resist strenuously the temptations to confer on these relational routines the spurious status of historical laws or imbue them with a transcendental logic of necessity. The best that can be expected or wanted is the development of an analytical grid through which to examine how certain conceptual techniques have been isolated and privileged on particular historical occasions and, in particular, social settings so as to shape people’s interests and formulate canons of intelligibility: “power and knowledge directly imply one another … there is no power relation without the correlative constitution of (p.153) a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations.”18 Because these devices are never outside the dynamic realm of political struggle, they are contingent in force and effect. There is a constant temptation, to be resisted, to confer on these routines the spurious status of historical laws or imbue them with a transcendental logic of necessity.
Perhaps the most obvious and pressing illustration of this relationship between power and knowledge is exemplified in the innovative work of some feminists. Traditional approaches to power were very useful at highlighting the historical record of sexist practices and cataloguing the various ways in which male hegemony has utilized its dominant position to perpetuate the continuing oppression of women in society. At its most subtle, this work went beyond the more obvious occasions of sexism and hinted at the sophisticated tools by which men’s superiority was maintained and disguised. However, there were very definite limits to such an analysis and its prescriptive recommendations; it treated men exclusively as the intentional agents of oppression, it understood power as a possession that needed to be redistributed along more egalitarian lines, and it measured both oppression and its remedial correction in largely behavioral terms. This situation gave rise to a body of critical feminism which sought to comprehend male hegemony more along the lines of a powerful pragmatic approach.
Although there were considerable differences between theorists, the basic insight was that male power was held in place not only by instrumental social practices, but by commandeering society’s epistemological apparatus; modes of knowing and standards of truth were inculcated which served to reinforce existing relations of power. In classic philosophical mode, traditional theory claimed to be offering a transparent and objective representation of a pre-existing social reality. However, critical feminists argued that gender was not a biological characteristic, but a social and political concept. They insisted that this male-favoring discourse and its accompanying protocols of truth validation were far from objective and instantiated a particular and contestable vision of gendered reality: “male power extends beneath the representation of reality to its construction: it makes women (as it were) and so verifies (makes true) who women ‘are’ in its view, simultaneously confirming its way of being and its vision of truth.”19 Such an approach captures how power and (p.154) knowledge work to reinforce each other; there is no outside by which to get out of or above the inevitably loaded epistemologically enforced protocols of power. By displaying how the very discourse and ways of knowing which people use, both men and women, manages to naturalize and authorize a particular way-the-world-really-is, it is able to incorporate power over and power to into a deeper and more encompassing constitutive account of power.
As I have already commented, the demonstration that legal thought or science and philosophy generally are a profoundly social and, therefore, political practice is not a bad thing; it only becomes so if there remains a lingering claim to be speaking in the name of some detached and supra-historical authority.20 Although scientific methods are useful in solving problems about that natural world, it is not advisable to treat their predictive-empirical techniques (or other epistemological methodologies generally) as capable of gaining access to some universal truths or being separable from the historical contexts of their deployment; their findings are provisional, standards are fallible, and absolute objectivity is mythical. Consequently, a powerful approach recommends a reworking of Einstein’s warning—“A foolish faith in authority is the worst enemy of justice whether that authority is political, ethical or epistemological.” Compliance with or greater conformity with some abstract notion of truth is not a mark of progress or improved justice. Pragmatists place the achievement of practical justice in present society ahead of such recherché pursuits.
The Power of Law
Significant parts and activities of law continue to exercise power by way of bare command and retain authority by uncritical obedience and ritualized violence. However, a too single-minded focus on this imperative dimension can manage to obscure the more pervasive and subtle disciplinary techniques of power that are promoted and advanced through law: The legal system is much more than a modern Austinian-like “code of organized public violence” or a thinly disguised process of ideological inculcation.21 Analytical jurisprudence (p.155) tends to neglect the important ways in which law functions as a sizeable part of other more embracing discursive regimes of power. It is part of that complex strategic situation which serves to instantiate and regularize the contingent patterns and routines of power in installing economies of truth. Being neither only an institution or a commodity, power utilizes the legal process to insinuate itself in social practices: It not only exerts a power over and enables a power to, it also lays down the constitutive terms and conditions through which people formulate and renegotiate their daily lives and entitlements. Law is a combination of toolbox, how-to manual, and raw materials. In the same way that all problems come to resemble nails if a hammer is the only tool that you have, then law cabins and curtails the social process within which power operates and transforms itself; it is both confining and facilitative.
In modern Western societies, law has become an example par excellence of such a discursive regime. Law is one of the important activities and regimens through which society generates and maintains various collective goods, such as contract, property, family units, and the like. The particular range and quality of collective goods which a society generates and maintains is one of its major distinguishing features: A society would be a different place if it had a different set of legal paraphernalia and collective goods. Insofar as law and legal doctrine give shape and nuance to the social artifacts of government authority, civil rights, and the like, they help to constitute and preserve existing social arrangements. Moreover, by framing the set of pressing problems perceived and to be resolved as well as the preferred range of available solutions to be employed, law permeates the whole social context and its imaginative appreciation. It is not so much that litigation and adjudication are special social activities that do not cause or condition other social activities and planning, but that they also comprise and are constitutive of the extant social conditions: “[it] is not so much that the court is the natural expression of popular justice, but rather that its historical function is to ensnare it, control it and to strangle it, by re-inscribing it within institutions which are typical of a state apparatus.”22 Power shapes the contingent nature of law and society as they themselves influence shifting patterns of power.
Consequently, participation in the legal process as lawyer or litigant, no matter how radical the claim or cause, runs the risk of reinforcing as it challenges (p.156) the dominion of the status quo. Litigation occurs within the limits of existing social structures and arrangements for the enabling, exercising, and constituting of power. As such, law is not an independent variable in social struggles, but a formative influence in shaping the contours and constitution of those struggles. There is no available outside from which to engage in transformative action: All struggle for change is already sited and framed within the very mechanisms and mediums to be resisted and reworked. In this sense, therefore, law and legal processes are important not simply because they affect social practices (which, of course, they do), but also because they form part of power’s protocols that combine to sustain an integrated, if incomplete complex strategic situation of political control and social ordering.
Understood in this way, law is always part of society’s power structure; there is no neutral position that the legal process occupies in relation to the existing patterns of power. Law favors the status quo: It is an integral part of the general apparatus which holds the existing governmental arrangements in place and places a series of obstacles in the way of those who struggle to bring about political change. From a broadly democratic standpoint, it is not so much whether that change is considered to be good or bad in some objective sense which is, as I have been at pragmatic pains to emphasize, a fraught undertaking. It is because the legal process tends to be strongly aligned with the interests of the established order which is better able to access its formidable authority and institutional resources in order to resist change and/or to divert those transformative efforts into debilitating and decelerating channels. Moreover, legal positivists’ insistence that law’s validity is separable from its moral legitimacy contributes to the law’s political authority in the minds of the citizenry when it moves to resist challenges to that authority. The positivist strain of analytical jurisprudence operates as a powerful apologist tool in convincing subjects of the status quo’s desirability or, at least, its claim to respect and support; it helps to foreclose the imaginative and practical realization of a very different set of governmental arrangements.
For instance, while Joseph Raz is correct to note that “it is of the essence of law to guide behaviour through rules and courts in charge of their application,” he is mistaken to assert that the legal process “is morally neutral in being neutral as to the end to which the instrument is put.” The legal process is proestablishment in that it works to entrench and solidify the extant content of law and its application and enforcement by the officially designated agencies. Although it may be neutral in a vague and abstract ahistorical sense, it is almost invariably on the side of conservative political forces; law will help to ensure and enhance the orderliness and stability of the legal system and, therefore, its moral mandate. Accordingly, in a “a non-democratic legal (p.157) system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and racial persecution,” the legal process will work to hamper, marginalize, and perhaps outlaw the efforts of those progressive activists committed to overcoming such oppressive regimes.23 As such, law is far from neutral in its political effects and moral legitimacy; it functions primarily, if not always successfully to preserve the status quo and to give an official imprimatur to its political/moral orientation.
A corollary of this is that, through the formal and substantive dimensions of the legal process, power contributes to casting normativity in its own image, so that people are persuaded to do what they must do (from power’s perspective) because it is also what they ought to do (from morality’s point of view). Law works to give a formal stamp of approval to society’s moral order. However, law is never only about vested interests or power politics; it is also about the rational justification and masking of those interests and power. Any credible explanation of law’s operation and performance must be sensitive to the sophisticated ways in which force and rationality combine to reinforce the other. It is important to be clear, therefore, that the legal process is not always and only the crude instrument of the ruling establishment. In order for law to maintain its prestige and legitimacy, it must demonstrate that it is more than a manipulable resource of the governing elite. On occasion, therefore, it must live up to its own logic and rationality by delivering just outcomes which might well run against the immediate agenda of presently vested interests. Consequently, law will play its role in disciplining society in accordance with the prevailing power coalition of political forces, but will not be able to achieve a fully disciplined society. As an historical appreciation of law’s episodic operations displays, the rulers (i.e., politicians, judges, officials) “played the games of power according to the rules which suited them, but they could not break those rules or the whole game would be thrown away.”24 Although this official performance will vary from one context to another, it is a feature of law’s intimate relation to power that any (p.158) attempt to conceive of them as separate and apart is misleading and politically so.
Accordingly, a powerful and pragmatic perspective recommends an understanding of law that goes beyond its traditional depiction as an instrument or commodity. Although Hart realized better than Austin the more nuanced and diverse ways in which systems of rules function as channels and frameworks for directing social life, he exhibited a distinct tendency to elide some difficult issues about how power functions and legitimates itself through law. He was content to observe that “so long as human beings can gain sufficient cooperation from some to enable them to dominate others, they will use the forms of law as one of their instruments.”25 Yet this tells only part of the story. Law is not simply an institutional device for domination, but is one of the strategic social practices through which human beings and their interests are constructed and inscribed in a society’s political script; social relations do not pre-exist law or arise outside of power’s protocols. Moreover, as part of the established order, albeit fluid and unfinalized, law is never neutral. It is skewed in favor of the status quo and it helps to secure those vested interests, even though it does so with only limited and occasionally counterproductive success. Analytical jurisprudence ignores such issues and approaches at its and everyone else’s peril.
A Post-Analytical Calling
Consistent with the pragmatic critique that I have offered of the analytical project, I now need to offer a more constructive set of proposals for jurisprudential study. It should come as little surprise to learn that I recommend a post-analytical approach which is characterized by its insistence on becoming much more sensitive and alive to the social forces and political interests that frame both law and any effort to theorize about it. Whether dealing with scientific, legal, or jurisprudential practices, it will be important to situate them within a broader dynamic context of social forces and political interests. Ironically, it was John Austin himself who recognized the central role of power in understanding law’s operation and authority. Although Austin’s explanation was too crudely command-based,26 he nonetheless recognized (p.159) that law was fundamentally about power and the effort to control and discipline people in accordance with a particular vision of right conduct. As such, I recommend that Austin’s legacy might best be preserved and galvanized by a post-analytical attention to power’s pervasive operation. In particular, this will entail not only contextualizing analytical jurisprudence, but also unveiling the ways and circumstances in which analytical jurists have claimed to position themselves as separate and apart from the social forces and political interests which energize and inform them. Accordingly, it is vital that a post-analytical approach builds on the insight that “conceptual and methodological questions are inescapably political.”27 As such, oppression is problematized, but not done away with.
Like almost all other social practices, the disciplines of philosophy and jurisprudence are not immune from the push-and-pull of various social, economic, institutional, ideological, and cultural currents. Because, under a pragmatic view, objectivity is about compliance with those accepted and agreed-upon standards for justifying knowledge, it will be crucial to ascertain and examine the terms and conditions under which such social agreements have been reached and are maintained. By giving the idea of social practices a more political than philosophical spin, it brings the operation of power into the center of debate. For instance, it allows the crucial concept and practice of consensus (and, therefore, standards of persuasion and justification) to be unpacked, showing that the historical extent to which it has been treated is imposed as much as chosen. Indeed, this is exactly what Hart’s rule of recognition tends to illustrate. By placing bureaucratic authority at the heart of law’s validity, it contributes to the sense in which political acquiescence rather than civic participation is sufficient to ground and legitimize political power; democratic involvement is considered to be an optional extra, not a sine qua non of the maintenance and exercise of law’s political and coercive power. Moreover, this further explains why democracy recommends itself as the least worse mode of government process: Democracydoes not so much obviate, let alone dispense with power, but rather enables citizens to appreciate, challenge and recalibrate its operation.28
Consequently, what has managed to get itself accepted in the relevant community of scholarly study will be attributable to more than (or, perhaps, less than) the raw force of a good idea. In regard to analytical jurisprudence, this suggests that the virtues of factual or epistemic values are neither as apparent nor as insulated from political values as their proponents (p.160) would recommend: They are similarly, if not equally connected to the social matrix of forces that gestate and perpetuate them. For instance, one important political consequence of the claim of the New Legal Realists that there is “no higher tribunal than science” in relation to understanding both the natural and social (and, therefore, legal) worlds is that it shifts huge epistemic and political power to the scientific community; that community’s members become empowered to establish the standards and protocols for identifying the knowable and real in all domains.29 This is both a sizeable privilege and a significant responsibility. However, because that power is exercised under the guise of scientific authority, it is largely insulated for more direct and active forms of popular accountability.
In adopting such a power-informed account, a pragmatic jurisprudence must not exempt itself from such inquiries. Indeed, it would be fair to say that the pragmatic tradition has failed to give full significance to the effects of power on social life and political engagement. Any philosophical approach which treats the basis of objectivity as an intersubjective social agreement and insists that there is no ahistorical mandate for knowledge creation must surely pay close attention to the political dynamics of power at work. When so much hinges on the openness and freedom of intellectual debate, it is imperative that the crucial relation between power and reason is fully and critically appreciated. This is particularly so in the realms of law and legal theory in which the issue of “what rules of right are implemented by the relations of power in the production of discourses of truth” is most acute.30 Nevertheless, a pragmatic approach seems at least as well placed as the more traditional and analytical philosophical tendencies to confront directly, not coyly evade this challenge. Rather than duck the realization that knowledge and objectivity are intimately tied to social practices and political interests, jurisprudence needs to incorporate that unassailable insight into its general stance by ensuring that the circumstances in which particular intersubjective agreements are made are constantly being challenged and reassessed.
In doing so, the pragmatic ambition is not to somehow wrest reason free of power’s suffocating grip and exhibit it in its unsullied purity; there is neither reason that is entirely outside power nor an Archimedean point from which the acceptable amount of corrupting power can be gauged so as to (p.161) render consensus sufficiently free and reliable. Instead, the pressing task is to detail how power and reason work together so that society can determine for itself when the play of reason and power is sufficiently balanced and understood in the present circumstances to grant temporary authority to the resulting consensus. The task is most definitely not to purge intellectual inquiry and debate of the political as this would undermine the basic force of the pragmatic critique. Instead, mindful that power can be constitutive and enabling as well as restrictive and distorting, a pragmatic approach can meet power’s challenge by utilizing available institutional arrangements and opportunities not only to maximize people’s life choices and life-styles, but also to provide a set of communal resources through which the bases for these choices and styles can be debated and criticized. In contrast to traditional and analytical philosophers, pragmatists look to extend and proliferate the opportunities for participation in microcommunities rather than to narrow and accrete decision-making power to a small elite in the name of expertise and truth.
Accordingly, when analytical jurists repeat Hart’s oft-cited claim that “description may still be description, even when what is described is an evaluation,”31 they seem to beg or finesse many of the important questions about what counts as description. Even the New Legal Realists, like Leiter, who are more rigorous than their conceptualist colleagues, still rely too heavily on an unconvincing depiction of a sharp and fixed contrast between description and evaluation; this is symptomatic of the lingering and definitive analytical attachment to such binary modalities. A close examination of both distinctions must draw attention to the extent to which epistemological practices (i.e., What determines what is it to have true knowledge of law?) and political practices (i.e., What political interests and values are promoted by law and legal theory?) are as related and dependent as much as they are separate and apart. The pragmatically oriented account of power that I have adumbrated is best placed to achieve that ambition.
Tasks To Be Done
What is the role of the legal theorist in this post-analytical project? What distinctive contributions, if any, can the jurist make to advance the post-analytical project? There are, of course, many different answers to these questions; (p.162) it would be wrong-headed for democrats, of all people, to insist that there is only one true way to make a jurisprudential contribution to this central task. However, there are some particular tasks that seem well suited to those with a democratic approach to legal theorizing:
• Abandon Legal Theory—In a manner of speaking, legal theory should become shallow, if deeply and rigorously so. Although pragmatic minded jurists will continue to theorize about law, they will forsake any metaphysical ambition to say something transcendental and true about the-way-the-legal-world-really-is for all time and for all societies. Having rid itself of its longstanding obsession with all matters epistemological, jurisprudence can eschew the misguided search for the last philosophy and work towards cultivating different ways of thinking about law and life. As William James put it, we need a “philosophy of maybes” that strives to be suggestive, not certain, provisional, not final, and only provincial, not universal.32
• Get Hands Dirty—Having abandoned legal theory, jurists need, as it were, to get out of their armchairs and into the street. They will take seriously the idea that any search for meaning and understanding can only be gained by immersing themselves in the messy social practices and gritty lived experiences of people. In turning away from philosophy and towards sociology, this will not entail a leap from one epistemology to another in a familiar scientistic or positivistic manner; there will be no back-door readmission of the analytical tendency. Instead, being done with a pragmatic sensibility, it will be a hands-on struggle of social engagement, not a scientific journey of discovery. The goal will be to develop a contextual and rich appreciation of law’s contingent practices and political possibilities.
• Go Genealogical—Relatively unburdened by the props and para-phernalia of traditional legal epistemology, democratic jurists can begin to explore and unpack the combination of historical accidents and contingent circumstances that gave rise to and sustain the reliance on such metaphysical baggage. For instance, by locating the historical determinants of the fact/value or epistemic/moral distinctions relied on by analytical jurisprudence, the social tasks that they perform, the conceptual tools that they valorize, and the political interests that they continue to serve, it will help to demystify legal theory and show how (p.163) there is no legal theory that operates as a detached and apolitical pursuit of legal truths.33
• Focus on Power—Resisting the temptation to make sweeping and grand explanations in the manner of analytical jurisprudence, democrats can offer a fuller and more bracing account of how power operates through law. Rather than simply look at how law works as a coercive (i.e., power over) and enabling (i.e., power to) force, it will be helpful to illustrate how law functions as a constitutive network in which social relations and political values are nurtured and legitimated. By taking a thoroughly pragmatic understanding of how power and reason work together, a democratic jurisprudence can begin to show how individual decisions not only tend to benefit entrenched interests, but manage to construct and utilize a general mode of legal reasoning which legitimizes those decisions as natural vulnerable and just.34
• Embrace the Political—Again, having given up on their lengthy romance with a metaphysical phantom, jurists will be eager to experiment with a post-analytical practice of legal theory which reverses the relation between philosophy and politics. Rather than seek to subject politics to the limiting discipline of philosophy, democrats will work towards putting the jurisprudential enterprise in the service of a more emancipatory politics. In this way, sensitive to its contingent context, jurisprudence will give institutional priority to the needs and wishes of ordinary citizens, suitably tempered in the vigorous give-and-take of political debate, over the received opinions of putative experts, like philosophers and jurists, who claim to speak in the privileged accent of scientific reason and analytic truth. Theory is not an end in itself, but a means to improving the conditions of people.
• Be Useful—It follows from its embrace of the political that the success of any democratic approach to legal theory is to be judged by its capacity to contribute to the practical realization of those political objectives that citizens have decided are important to themselves. Being out of the business of delivering fixed ends and privileged means (p.164) for achieving them, democratic jurists will advise on what goals can be achieved through law and how the legal process can be transformed to work more effectively in doing that. Democratic theorists will be useful to society’s members in helping them to confront and resolve the pressing legal issues of the day for themselves. In fulfilling that role, judges and lawyers will play a supporting role rather than occupy center stage; they will facilitate, not hijack society’s decision-making processes.35
• Act Locally—As part of their larger commitment to the notion that it is important to measure the strength of a proposal by its usefulness and it democratic origins, jurists will concern themselves with what works best for their own society. This does not mean that they will pay no attention to other societies, especially those less well off than their own, or future generations. But, because knowledge is connected to particular social arrangements and agreements, they are as likely to do as much harm as good in roaming too far afield. Though there are ample reasons to support democratic initiatives elsewhere, legal theorists will have their hands full in closing the gap between present aspirations and existing actuality so that the world can become a locally better and more democratic place.36
In an important sense, therefore, I agree with Ronald Dworkin that “we have no choice but to ask [judges and lawyers] to confront issues that, from time to time, are philosophical,”37 but I reject the analytical understanding of what it means to be philosophical. Instead, I insist that the whole philosophical enterprise must be reworked in line with a more democratic and less analytical sensibility in which the abstract emphasis on truth and objectivity is replaced with a more practical concern for power, usefulness, and substantive values. Rather than persist in pretending that the best way to engage with and understand law’s facts is by assuming that they represent some (p.165) independent set of historically given data that can be analyzed from some abstract and largely non-historical vantage point, it is more beneficial and convincing to recognize the inevitable connection between philosophy and politics, between knowledge and power, and between facts and values. In so doing, it might be possible to turn legal theory to more useful effect. Of course, a democratic critique cannot claim for itself any special rationality that allows it to purge legal theory’s infected reason so as to reveal power in its stark thereness. Because any critique must also partake of that same reason, the challenge is not to get beyond or through power to some pure reason or empirical truths that will stabilize and underwrite the jurisprudential project. Instead, the task is to work the historical space and strive to develop a power-sensitive reason that is conducive to and welcoming of a wider range of democratic interests. Any alternative to analytical jurisprudence must look to engage, not escape those social forces and political interests that combine to establish the legal economies of truth and power. This is the burden and promise of a post-analytical jurisprudence.
1 LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS I, S.107 (G.E.M. Anscombe trans. 1953).
2 See, for example, JULIUS STONE, THE PROVINCE AND FUNCTION OF LAW: A STUDY IN JURISPRUDENCE (1947).
3 JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 24 (1832: H.L.A. Hart ed. 1955). See T. HOBBES, LEVIATHAN 83 (1651) (“law properly is the word of him that by right hath command over others”) and James Boyle, Thomas Hobbes and The Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism, 135 U. PA. L. REV. 383 (1987).
4 See supra, ch.2. Austin’s ‘coercion’ theme was adopted by several other leading jurists of the twentieth century as the legal order’s distinguishing feature, albeit on different grounds. See H. KELSEN, GENERAL THEORY OF LAW AND STATE 18 (1945) and K. OLIVECRONA, LAW AS FACT 134 (1939).
5 H.L.A. HART, THE CONCEPT OF LAW 49 and 77 (2nd ed. 1994). See generally id. at 18–78. It is worth noting that Dworkin takes a different tack and proposes that the abstract point of legal practice is to constrain governmental power by setting the conditions under which the exercise of collective force is justified. On such an account, the task of legal theory to explain how and under what conditions law can perform this function well and, therefore, better explain the connection between law and the justification of state coercion. See R. DWORKIN, LAW’S EMPIRE 93 and 110 (1986) and supra, ch.6.
6 See, for example, LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE (A. Sarat ed. 2001).
7 Leslie Green, General Jurisprudence: A 25th Anniversary Essay, 25 OXF J. LEG. STUDIES 565 at 574–75 (2005).
8 See Brian Barry, Is it Better to be Powerful or Lucky?, 28 Pol. Stud. 338 at 349 (1980) and MacDonald, Is ‘Power’ Essentially Contested?, 6 BRIT. J. OF POL. SCI. 380 (1976).
9 M. WEBER, A THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 152 (T. Parsons ed. 1957).
10 Austin, supra, note 3 at 10 and 14.
11 See Hart, supra, note 5 at 26–49.
12 Austin, supra, note 3 at 24.
13 Hart, supra, note 5 at 210. See also D. WRONG, POWER: ITS FORMS, BASES AND USES (1980) and J.K. GALBRAITH, THE ANATOMY OF POWER (1983).
14 STEVEN LUKES, POWER: A RADICAL VIEW 28 (2nd ed. 2005). As instructive as the revised second edition of his book is, Lukes still tends to believe that a powerless situation is possible and that people can have true interests. See infra, pp. 152–54. See PETER MORRISS, POWER: A PHILOSOPHICAL ANALYSIS (2nd ed. 2002).
15 Michel Foucault, The History of Sexuality in POWER/KNOWLEDGE: SELECTED INTER-VIEWS AND OTHER WRITINGS 1972–1977 187 (Colin Gordon trans. 1980). For a more extended, if a little dated account of Foucault’s work, see my Working The Seam: Truth, Justice and The Foucault Way in A. HUTCHINSON, DWELLING ON THE THRESH-OLD: CRITICAL ESSAYS ON MODERN LEGAL THOUGHT (1988).
16 M. FOUCAULT, THE HISTORY OF SEXUALITY 92–93 (1979).
17 WALTER ISAACSON, EINSTEIN: HIS LIFE AND UNIVERSE 22 (2007).
18 M. FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 27 (Alan Sheridan trans. 1977).
19 See CATHARINE MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 132 (1987). See also Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 2 (1988). For an instructive working-through of this approach in international law, see Hilary Charlesworth, The Sex of the State in International Law in SEXING THE SUBJECT OF LAW 251 (N. Naffine and R.J. Owens eds. 1997).
20 See supra, ch.5 and R. RORTY, ACHIEVING OUR COUNTRY: LEFTIST THOUGH IN TWENTIETH CENTURY AMERICA 28 (1998).
21 N. POULANTZAS, STATE, POWER, SOCIALISM 77 (1978) and Alan Hunt, Marxist Theory of Law in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 355–66 (D. Patterson ed. 1999).
22 Foucault, supra, note 15 at 1. See generally ALAN HUNT AND GARY WICKHAM, FOUCAULT AND LAW: TOWARDS A NEW SOCIOLOGY OF LAW AS GOVERNANCE (1994) and Roger Cotterrell, Subverting Orthodoxy, Making Law Central: A View of Sociological Studies, 29 J. LAW & SOC’Y 632 (2002).
23 Joseph Raz, Rule of Law and Its Virtue in THE AUTHORITY OF LAW 225–26 and 221 (1979). On the bias of analytical jurisprudence in favor of stability and regularity, see supra ch.3.
24 E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT 263 (1976). See also Hanoch Dagan, The Realist Conception of Law, 57 U. TOR. L.J. 607 (2007). This is not to suggest that there is a deep logic to social relations or the general connection between law and those social relations at any particular time or place. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976) and A. HUTCHINSON, IT’s ALL IN THE GAME: A NON-FOUNDATIONALIST ACCOUNT OF LAW AND ADJUDICATION 216–51 (2000).
25 Hart, supra, note 5 at 210. Although the moralists at least talk about values, they do so in a clinical and apolitical style. See supra, ch.6.
26 Austin, supra, note 3 at 13 (“Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is supreme.”).
27 Lukes, supra, note 14 at 63
28 For a full development of the connection between power and democracy, see infra, ch.8.
29 See BRIAN LEITER, NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY 117 (2007) and generally, supra, ch.5.
30 Foucault, supra, note 15 at 119. It is on the role of power and politics that I take issue with Rorty. See infra, ch.9.
31 Hart, supra, note 5 at 244.
32 WILLIAM JAMES, THE WILL TO BELIEVE 59 (1897).
33 See J. STUHR, PRAGMATISM, POSTMODERNISM, AND THE FUTURE OF PHILOSOPHY 95–133 (2003).
34 Of course, this type of critique is nothing new and runs from John Dewey, Logical Method and Law, 33 PHIL. REV. 560 (1924) to Robert Gordon, New Developments in Legal Theory in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 41 (David Kairys 2nd ed. 1990) and beyond.
35 See, for example, ROBERTO UNGER, THE SELF AWAKENED: PRAGMATISM UNBOUND (2007).
36 See R. RORTY, ACHIEVING OUR COUNTRY: LEFTIST THOUGHT IN TWENTIETH CENTURY AMERICA (1998).
37 R. DWORKIN, JUSTICE IN ROBES 73 (2006).