INTRODUCTION TO SECOND SEMESTER (MICHEL ROSENFELD GUEST LECTURE

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In this lecture Rosenfeld gave an overview of CLS and deconstruction (the two main schools we will be studying in second semester) and their rebellion against traditional jurisprudence (what we did in first semester). In what follows, we look first of all at the shortcomings which CLS and deconstruction identify in formal jurisprudence, and then we look in more detail at the nature of CLS and deconstruction themselves. 1 The limits of formal jurisprudence

Traditional Anglo-American jurisprudence is respectable but it is limited in scope. It asks what can be described as ‘metaphysical’ or ‘ontological’ questions about the nature of law. For example, it asks ‘What is law?’ and ‘Is there a necessary connection between law and morality?’ The response of proponents of Critical Legal Studies (CLS) and deconstruction is basically to say, ‘These are coherent questions to ask about law, but who gives a shit? These are not interesting questions. We all know we should disobey Nazi laws. So who cares whether we should do so because they aren’t really valid laws (as natural law claims) or because they are valid laws which don’t cohere with morality (as positivism, on the other side of the traditional debate, claims)?’ CLS and deconstruction concern themselves with a more interesting, fundamental question: What is the relationship between law and justice? This is the question lawyers really need to ask themselves. Dworkin was also interested in this question, actually, but he had a really limp answer: basically, ‘I have the right conception of justice or political philosophy (namely liberal egalitarianism) and I can generate from it a uniquely correct answer to every legal question.’ Both CLS and deconstruction find this answer very weak, and see the relationship between law and justice as highly problematic. To say, for example, that there is one correct answer to the question of whether abortion is inconsistent with the US Constitution—even though there is strong disagreement about the answer and no textual evidence to settle it—is obviously misguided. There is far too much disagreement about values in any society to justify any system of law by saying it is uniquely generated by a particular, uncontested political morality. So, in answering the fundamental question we just identified, we need to do a lot better than Dworkin. CLS says, then, that the laws in a society cannot possibly be deduced from or justified by the community’s sense of justice—there simply is no single sense of justice shared by any community; societies are far too divided in their ideologies and conceptions of the good for this to ever be possible. And, crucially, the law is not and cannot be neutral between these conceptions. That is why CLS is often said to be concerned with the politics in law, or law as politics; law is the battleground for these competing conceptions of justice. Deconstruction is a bit more systematic than CLS, but the conclusion it reaches is very similar. In the foundational text on deconstruction, ‘Force of Law’, Derrida writes:
To address oneself to the other in the language of the other is, it seems, the condition of all possible justice, but apparently, in all rigor, it is not only impossible … but even excluded by justice as law, inasmuch as justice as right seems to imply an element of universality, the appeal to a third party who suspends the unilaterality or singularity of the idioms.

Derrida’s point is that we all have our own notion of justice—thus making a similar point to CLS, about the multitudinous competing ideas of justice—and yet we each present it as though it is universal. We all elevate our own understanding of justice and think it is objectively correct and applicable to everyone. But, in fact, we

can never achieve justice for the other,1 because of course the other does not share our notion of justice. More importantly for legal theorists, it is the law which is the prime institution which claims universality for itself, which claims to be objectively rational and the embodiment of society’s shared sense of justice. But, precisely because of this feature of law—that it presents itself as being universally just—it is impossible and even contradictory to claim to do justice through law. Precisely because the law claims universality for itself, the law is the antithesis of justice (because justice is not and cannot be universal). Derrida also shows that justice through law is impossible by drawing on the work of Aristotle.2 For Aristotle, justice consists in treating equals equally (and, by extension, treating unequals unequally in proportion to their inequality). But there are different criteria of equality, for example need as opposed to merit, and these might pull in opposite directions. If we are to do justice through law we need to give effect to these competing imperatives in terms of general rules. So all general rules may be unfair in particular, exceptional circumstances. For example, the ‘No vehicles in the park rule’ will be unfair if a man in the park has a heart attack and an ambulance must drive to him to save his life. Derrida says that in every case justice requires a universal rule. This is because all humans are equal in value, and thus all rules must apply to everyone equally. But, on the other hand, every individual is unique, and rules must in application address themselves to the individual’s unique qualities. Therefore if justice is ever to be achieved, it must be both universal and singular, both contained in a rule and in its exception. Since these are contradictions, justice is impossible to achieve. 2 CLS

The law is of course a coercive system, a system wielding immense power over its citizens without their consent. This is highly problematic for legal theorists, who have constantly sought to justify this coercion. They have tried to point to some feature of law which morally justifies the coercive power it wields. The formal school thought that laws regulated social and economic interactions in a rational way. For example, contract law was thought to be rational because it facilitated fair market exchanges, abstracting from the individuals involved and seeing them simply as (for example) buyer and seller. Because the law orders human affairs rationally, it is justified in using coercion over its subjects. (Or, at least, the law is justified when it is rational.) The utilitarians said that law was justified because it is more bearable to live in a society subject to legal rules, i.e. law is justified because (or when) it maximizes utility. The law and economics movement, relatedly, said that law is justified because (or when) it maximizes wealth. And Dworkin said that the law is justified because (or when) it accords with liberal egalitarian values. The point, really, is that all these theories sought to justify the law, and felt that they had successfully done so. CLS sees that there are problems with all of these accounts of the virtue of law. All of these, argued the Crits, fail to explain adequately the relationship between law and justice. For example, what is ‘wealth’ or ‘utility’, and why is that the only thing worth pursuing? And why is it just about maximizing each of those: What about their distribution? By giving a simplistic and inadequate account of the relationship between law and justice, all of these accounts fail to justify the law’s existence. But, more than that, they conceal the fact that the law is still in need of justification. These accounts are also subject to another critique, this time an internal critique. The basis of this critique is that all law is indeterminate. This being so, legal reasoning cannot be as constrained as is usually made out.
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Basically a pretentious way of referring to people other than ourselves. Get used to it because these motherfuckers love the term. I don’t really see what Aristotle adds to this point. My advice is to ignore Aristotle and just understand the basic point that there is both justice and injustice in the generality of rules.

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Unger showed, for example, that contract law—despite being always couched in neutral language—is manipulated by judges, using the various rules and their exceptions, so as invariably to produce the legal answer which best suits the most powerful group in society. Thus law is pure power politics. But where does this lead us? Is law a waste of time? Some thinkers have concluded as much, for example the leaders of the Cultural Revolution in China, who were prompted by their Marxist understanding of law to get rid of it altogether. But CLS does not require this conclusion, and very few Crits have reached it. CLS is often considered to be purely negative in its approach, critiquing the orthodoxy but entailing no positive or constructive conclusions whatsoever. It is true that CLS is purely negative, but this should not be understood as a bad thing: there is great value in showing the edifice of formal law to be a mirage. 3 Deconstruction

We should note at the outset that there is a debate as to whether deconstruction is a pure methodology, nothing more than a method of reading texts; or whether it has an additional, normative aspect. The key underpinnings of deconstruction are as follows. All texts—both written and spoken—are open to more than one interpretation. All texts are ‘inter-textual’, i.e. depend for their interpretation on other texts. All texts have their meaning transformed when they are interpreted. Thus we all give meaning to texts as we read and then interpret them, and all texts have a ‘future’ in that they will receive new meanings in time. Even Roman history, which ended many hundreds of years ago, will be re-understood as the data are interpreted by future historians. This is even truer of a developing, contemporary system like the law. Although Derrida was French, his theory seems particularly well-suited to common-law legal systems. When a judge sets a precedent on a previously-undecided issue, he creates a present law about a past dispute. But this is not the end of the story: How will the precedent be understood in future? Will a motorized skateboard be understood to fall under the ‘No vehicles in the park’ rule? The meaning of the precedent can never be fully elucidated and will be continually developed forever. We can see how difficult it can be, on the deconstructionist approach, to have a coherent view of law and justice. If all texts are ambiguous, inter-textual and unstable, if we cannot know what laws mean or what they will come to mean, how can we say that laws are just? Indeed, the core criticism levelled at deconstruction over the years is that it leads to anarchy or nihilism or crude relativism; law in the hands of deconstruction becomes pure force and violence without any justification whatsoever. But there is arguably another side to deconstructionism, which is that it is not only a methodology but also an ontology and an ethics. Its ontology is that the world is divided into self and other (this division being of potentially many kinds, according to whichever group you happen to identify). These two can never know one another. You can never know the pain or perception of another, or the meaning that another attaches to things. There is thus an insurmountable ontological gulf between self and other. The ethics of deconstruction is that we ought to endeavour to treat the other as much as possible in his or her singularity. In other words, we must always try as far as possible to understand and respect the perspective of the other. We can never succeed perfectly in this task, precisely because of the insurmountable ontological gulf between self and other, but we ought to keep attempting to do so. One ought to be as inclusive as possible, to endorse an ‘ethics of difference’ (which is not crude relativism). It is here, in its ethical dimension, 3

that deconstruction becomes positive where CLS is purely negative. The task of law is to try to take account of the singularity of the other. The insurmountable gap means that perfect justice can never be achieved, but at least there can be meaningful debate about where the law should lead. How do the ontological and ethical dimensions mesh with the methodological aspect? Well, if the law is indeterminate then it must be an instrument of political power. But the ethical dimension of deconstruction stops this insight from descending into crude relativism; we are not forced into saying that every single legal interpretation or legal outcome is morally correct. The ethical dimension allows us to say that a legal outcome is morally better if it respects the singularity of the other, if it recognises plurality and the dignity of difference. For example, in Bradwell v State of Illinois 83 US 130, decided in 1873, the US Supreme Court upheld a law prohibiting women from practicing as lawyers. Justice Bradley reasoned that ‘[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life ... The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.’ In 1996, however, in the case of United States v Virginia 518 US 515, the Court struck down a law prohibiting women from joining the military, reasoning that women are free to undertake any occupation they choose. Deconstruction shows us, in its methodological dimension, that there is no definitive interpretation of equality between the sexes. But at the same time it shows us, in its ethical dimension, that there can be progress, a good faith attempt to develop a better interpretation, an interpretation which is more inclusive and plural and open to the other (in this case, women). The past laws have evolved into a present where no lawyer would ever argue that women were created by God to serve man. We cannot say how sexual equality will be understood in future, but nevertheless the nihilistic conclusion is avoided.

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are presented in the abstract. In capitalism. so Marx is a necessary precursor to what we will do later in the course. as though they are timeless and autonomous of their historical. deriving from particular historical contexts. The law—and therefore Hart’s theory of law—reflected that particular historical and ideological context. are tied to a particular context and a particular ideology. related problem: Because our legal education encourages the view that laws are timeless and independent of their context. They are not. equality and freedom cannot be understood objectively. It is impossible to do that without realising that all these principles are historically and economically determined. the point of Davis’s lectures is to refute the ahistorical and decontextualized approach of liberal jurisprudence. and follow through on what ss 8 and 39(2) demand of us. how do we stop them from doing so? Our Constitution envisages a rupture from this pattern. The individual was regarded as paramount. like all traditional theories of law. If we are going to take transformative constitutionalism seriously. Hart’s system of primary and secondary rules will give you an insight into that issue. Peter Gabel wrote a review of Dworkin’s Law’s Empire. aware of its contingent nature. to convince you that what you’ve learnt for the last three years is absolute nonsense and has no relevance at all to the real world. for example. and the theories devised to explain them. This is what Marx helps us to do. Firstly. There is a second. how do these relations of subordination and domination manage to perpetuate themselves through so many epochs? And. and the role of the State very limited. Similarly. there is massive domination by capitalists of their workers. so isn’t it absurd that there we as law students are not engaging with what an emancipated society really is? 5 . Secondly. then we have to scrutinise every single legal principle. by looking them up in the dictionary. there was massive domination by lords of their serfs. traditional Anglo-American jurisprudence is concerned with carefully defining what law is. 2 The basic point: laws and legal theories are grounded in a particular context In the 1977 Harvard Law Review. Roman-Dutch law. In answering this question Davis’s job is to destabilise you. It’s much more exciting to ask ourselves how the set of laws that currently exists came about.MARXIST JURISPRUDENCE 1 Moans about formal jurisprudence As Rosenfeld suggested. In short. is a colonial importation for fuck’s sake! It is not neutral or objectively correct. So will Dworkin’s theory of law. We must understand that all legal systems. we are unable to engage meaningfully with the Constitution. In it he made the point that Hart’s theory of law reflected a particular moment in the development of libertarian capitalism. 3 Marx’s essential ideas Marxism has three related concerns. thirdly. Again. this is what Marxist jurisprudence and related traditions help us to see. constitutional values like dignity. Moreover. The problem is that these theories. and we must learn to understand them as such. the foundation of our private law. They are political terms. to examine the relations of subordination and domination which characterise particular historical epochs. based on welfare capitalism and the liberal egalitarianism that underlies it. Marx also influenced CLS and postmodernism. In feudalism. Dworkin’s theory of law is reflective of a particular set of values. economic and political context. Unless one examines it critically. one cannot do what the Constitution requires. But Davis doesn’t give a shit about this question.

With the change of the economic foundation the entire immense superstructure is more or less rapidly transformed. religion. But he tried to transcend these traditions and show how the society which these traditions sought to understand was historically contingent and determined by the economic base. From forms of development of the productive forces these relations turn into their fetters. And it is this superstructure which in turn reinforces the production relationships. These relationships of production are then reflected upwards into the superstructure.In the Preface to his Contribution to the Critique of Political Economy.e. In a feudal society. But technology then changes. which causes a change in the relations of production. they are seen as having (via the monarch) a divine right of ownership. 6 . Nor did he deny the claim of the classical economists that capitalism was the most efficient system of production yet devised. and the legal institution of vassalage binds peasants to work the land of their particular lord on his behalf. the society’s values. there are certain forces of production: lots of labour. but the superstructure colours and reinforces the economic base. and legal system. These forces of production are used in a particular way. the steam engine causes the Industrial Revolution and henceforth capital (rather than land) becomes the dominant productive asset. Marx does not deny the claims of the liberal tradition. the material productive forces of society come in conflict with the existing relations of production. So technology causes a change in the means of production. the base forces of production Once we understand the base-superstructure relationship. and a bit of capital (like simple tools). lots of land. Thus the fundamental legal institutions of modern life—private property and the law of contract—come into existence and enable and reinforce the productive relationships in the industrial society. This is the essence of Marx’s economic determinism. Thus the particular means of production existing in the society determine the superstructure. or — what is but a legal expression for the same thing — with the property relations within which they have been at work hitherto. as noblemen. Then begins an epoch of social revolution. So the elite landowners are the dominant class. The change in the economic base (by technological advancement) is what causes the changes in the superstructure. which causes a change in the superstructure. Marx writes: At a certain stage of their development. for example. for example that freedom of contract is a good thing. The relations of production fundamentally alter: the capitalists become the dominant class. and factory workers bind themselves to work for the capitalists not through feudal vassalage but through ‘freely-concluded’ agreements. So. So: superstructure relations of production collectively. i. This is what we will explain in this section. it becomes clear that our ideologies and theories about the world are determined by the economic base and are historically contingent. giving rise to particular relationships of production. causing a change in the existing means of production so that the new productive forces ‘come in conflict with the existing relations of production’ and thus triggers ‘an epoch of social revolution’. Thus the basesuperstructure relationship is reciprocal. and the superstructure reinforces the relations of production.

This is a point well made by the Marxist historian E. It says too much in that it still maintains that the economic analysis is paramount. 6. Law is ideology. Marxists have at various times reached the following six conclusions. Rather. make the oppressed forget their own oppression. all of which are related: 1. most enlightened Marxists are not so crude. Human rights. Thompson. For example. but its saving grace is that it creates the space for the oppressed to occasionally make genuine gains. he is not a crude economic determinist. he distinguishes between ‘the material transformation of the economic conditions of production’. more importantly. It says too little in that it doesn’t tell us when law is relatively autonomous and when it isn’t—which leaves us in no better position to decide when the law should be reformed and when it should not. This means that legal struggle can alter the relations of production. Raymond Williams. Law is politics. 5. which many would dispute. which cannot. they do play a truly important and creative role in shaping that system. 3. human agency plays a role in the reciprocal relationship between the base and the superstructure. this revised Marxist account of law says both too much and too little. 7 .If you accept this. one can work within these to make real gains. the State ensures that the production relations are reproduced. the legal system is a monopoly by the State of the means of coercion. argues that you can’t use the ‘building metaphor’ of the superstructure being built on the economic base to truly understand society. what is the value of law? Law is then nothing more than an instrument to reinforce and legitimate particular relations of production and has no intrinsic value at all. the law is shaped by economic concerns but economic relations are also shaped by the law. Law does no more than mirror existing economic relations. Just after the quotation provided above. they make us feel better about the inequalities in society—and. and law is a tool for the State to do this—but at the same time law has relative autonomy and leaves some space for political struggle. And thus. Although the Marxist analysis might seem to commit one to economic determinism in which law has no autonomy from the economic relationships. legitimating a particular economic system and inculcating the values of the ruling class. shaping one another reciprocally. The content and procedures of law manifest the interests of the ruling class. Such a view allows us to escape crude economic determinism and carve out a role for law. Law always potentially coerces. simply and inescapably a sight of political struggle. and ‘the ideological forms in which men becomes conscious of this conflict and fight it out’. While he stresses the fact that the economic base determines the workings of the superstructure.P. 2. for example. once people have rights they can use them to either defend existing entitlements or fight for new ones. In short. whether or not workers have a legal right to strike clearly shapes the distribution of wealth and power within the capitalist system. But still. who states that although Marx is correct about the emergence of fundamental legal institutions. for example. the economic base and superstructure react back and forth. Fortunately Marx’s understanding of the law is not quite so simplistic. 4. Law is often oppressive. Law and the State are closely connected—in that law is a reflection of the economic base. law is left in an unfortunate position: if laws are determined by the economic base and do nothing except reinforce a particular set of production relations. are nothing more than an ideological obfuscation of the ruling class: basically. although lawyers have to work within the system which has by-and-large been created by economic forces. which can be determined scientifically. in his Marxism and Literature.

and the capacity of legal rights to determine the distributional consequences within that system. the ultimately determining element in history is the production and reproduction of real life. And it’s pretty fucking stupid. For example. he transforms that 8 . The conferral on the members of companies of limited liability. Hence. it does not elevate this emphasis to crude economic determinism. person A has committed a delict (or a crime). The Marxist analysis of law basically points out the distributional consequences of the law within these relationships. But. By looking at law in this way we can see that law shapes and constrains the relationships between people. That is the dialectical quality of law: it is neither entirely oppressive nor entirely emancipatory.One of the difficulties is that Marx never actually wrote a book on law specifically: he died before he wrote Volume 4 of Das Kapital. If the law says that. So. that women were emancipated only when it became more economically efficient to allow them to join the workforce rather than sit at home and bake cookies. if the law decides to recognise the existence of an enforceable contract between two parties. Therefore the law governs relations between rights-bearers. or break out of this and invent a theory of law all of their own. For example. consumer protection legislation. For example. that changes the relationship between the worker and his employer. the definition of legal personality is precisely the capacity to have legal rights. Clearly Pashukanis’s analysis is his own. that apartheid yielded not because whites suddenly became morally aware but because the process of industrialisation—in other words economic forces—triggered things like massive urbanisation and the rise of trade unions. And so on. When we talk about law from the Marxist perspective we are talking about two intertwined factors: law’s reproduction of a particular economic system. More than this neither Marx nor I have ever asserted. which was meant to be about law. If the law says that a worker has a right to strike. things valued monetarily rather than according to their actual qualities. and other supposedly progressive legal instruments which protect the downtrodden? Liberals say it’s because we are so morally enlightened. It follows that if we move away from capitalism—and therefore away from the exchange of commodities—there is no need for law. Pashukanis in his Law and Marxism argues that law must be understood as a tool for the exchange of commodities. i. if somebody twists this into saying that the economic element is the only determining one. the Marxist analysis emphasizes the economic forces in society.e. hallelujah. on the one hand. as we’ve been saying repeatedly. If the law says that a wife has a claim to her husband’s property upon dissolution of their marriage. The law constructs people as bearers of rights. that changes the relationship between the spouses. fundamentally changes the distributional consequences of all future interactions between the company and other persons. Marxists stress that slavery was only abolished when it became uneconomic for slave-owners to have to provide permanent board and lodging to slaves and their families. the relationship of those parties will be changed quite drastically from the position if there was no such contract. Marxists try to see whether these developments cannot be better explained by economic forces. in the face of which apartheid was simply an untenable way to run a society. Let’s look at the Marxist analysis from another angle: What gives rise to constitutional law. a celebrated legal institution in the development of capitalism. The more helpful analysis is that legal relationships are exactly what they say: relationships between people. As Engels wrote in 1890: According to the materialist conception of history. when person A does action X to person B. Those Marxists seeking to understand law have therefore been forced to do so from the perspective of the base-superstructure paradigm. not Marx’s. that changes the relationship between A and B.

So economics is important in shaping history. in many cases. when the Constitution demands that we do. Marxism in its more sophisticated guises explains ideology and how we see the world only through a particular framework. is trying to understand the law’s role properly. and then even the reflexes of all these actual struggles in the brains of the participants. As E. is seen as natural. To recap: Economic forces are important in shaping the law. which is inevitably shaped in large part by the economic relations. we are resistant to the Constitution’s demands that we rethink it. Nevertheless. market-based assumptions and values. Thompson made clear. and necessary. For example. juristic. to wit: constitutions established by the victorious class after a successful battle. Because we are so deeply embedded in this particular worldview. we can’t not see things through this market-based framework. We are unable to step outside the existing legal framework—which is why. senseless phrase. the current legal framework. whatever it is. It is within that interplay that law’s value..P. post-IT revolution law. Thus the law constitutes an arena of struggle (at the same time as it allows the ruling classes to exploit the workers). The difficulty. but the various elements of the superstructure: political forms of the class struggle and its results. and the base-superstructure metaphor is on its own insufficient to explain the law. the law does have a role to play in shaping society within the constraints set by economic forces. we see the Constitution and its fuzzy values as a threatening interference with the coherent framework which we know and love. they use the law to resist. There is clearly something more here. That’s how Davis rolls. So we can’t say there is any one clear and well-worked out Marxist position on law. objectively reasonable. workers do not just submit to exploitation. which are so endemic to our thought that we simply have no other toolkit for understanding these issues.3 Law reacts back on the economic relations and confers rights which did not previously exist. etc. and. This is because Marx did not have time to write his complete analysis of law. Similarly. which cannot be an accurate description of reality. What is clear is that the complexity of the analysis must lie in the interplay between rights and repression. for Marxist lawyers. preponderate in determining their form. juridical forms. This metaphor gets into the uncomfortable position whereby we say everything about the economy and nothing about the law. So the legal system itself both shapes and is shaped by the prevailing relations of production. debates in the press about economic policy invariably turns on certain neoclassical. which is tricky to analyze. 3 I know this is blatant repetition. 9 . philosophical theories. also exercise their influence upon the course of the historical struggles. There is an interaction of all these elements in which. religious views and their further development into systems of dogma. the law is left passive. but of course there are other factors at play. Fuck. We see its dialectical quality: it emerges in different forms as a result of different economics forms. must be found. When we look at Marx on law we are able to get a sense of the complexity of law and its location in a broader social analysis. political. we are so hopeless at it. Feudal law is different to capitalist law is different to 21st century.proposition into a meaningless. abstract. amid all the endless host of accidents the economic movement finally asserts itself as necessary. The economic situation is the basis.

Clearly legal reasoning is not objective. omniscient judge who can find the unique answer which best fits and justifies the legal materials. and no objective reading of a legal text. Let us consider Dworkin’s theory of law. ‘Who’s the judge?’ Why would they care about this if legal reasoning is objective? Furthermore. on closer examination. on certain implications of the rule that ‘A will must be signed by two witnesses’. Hercules is the hypothetical. especially in easy cases: we all agree. this is not really so. of course. Advocates’ first question when they learn a matter is set down for trial is. The point is that even Dworkin accepts that there are many possible and plausible answers to legal questions. He claimed there was one right answer to every legal question. using its ordinary meaning. where every single matter resolves into a 4-4 split between the conservative and liberal judges (with Justice Kennedy the swing vote)? Why would the Court invariably split along political lines if legal reasoning is objective and free of political convictions? They wouldn’t. and so on). The attack on objective legal reasoning Traditionally legal theorists have stressed the objective nature of legal reasoning. the way the legal materials determine legal outcomes.CRITICAL LEGAL STUDIES 1 Introduction: CLS’s four main theses Thus far we’ve been discussing an external critique of the law. politics. CLS stresses this point about adjudication—that it is not determined purely by the legal materials—and its corollary that adjudication is determined at least in part by judge’s ideological convictions. But this presupposes that there are a multiplicity of answers. CLS developed a series of theses: 1. even in hard cases. 4 Hopefully you remember this cunt from first semester. how can we explain the US Supreme Court’s decisions. The whole point of Hercules4 is that a superhuman judge is needed to come to the single right answer. 10 . the framing of the issue by and values of the judge are also highly important. Basically. Now we turn to the first significant internal critique. His theory therefore seems irreconcilable with CLS. Judge’s reasoning ultimately represents an ideological choice. which draws on both Marxism and American Legal Realism. But in adjudication (at least in hard cases). many of which are plausibly correct to normal human judges—for if the one right answer was immediately obvious to everyone. But. which looks at the practice of law from within. and apply them to the facts so as to generate the correct answer. Judges must interpret the legal materials objectively. we wouldn’t need Hercules’s superhuman skills. for example. This critique is provided by the Critical Legal Studies school. trying to understand legal change in terms of factors and processes outside the law (economics. Clearly they are relevant and do help to shape the law. Any answer a judge provides is contested: his interpretation of the legal materials and the moral values which he applies are not neutral or objectively correct. it is contested and each judge has his or her own views. But the Crits argued that there is no objective process of legal reasoning. This is not to say that legal materials are totally irrelevant. This attitude to legal reasoning—that it is objective and determinate—underlies the whole practice of law. and the separation between law and politics.

2. If these idiots realize that the law is indeterminate. Thus public policy is being used to temper freedom of contract: if the 5 Davis conflates the first two theses. Of course these ideas are not capable of being objectively or uncontroversially defined. For the legal materials themselves do not determine an outcome. Public policy is an expression of ‘vague import’ (per Innes CJ). For example. but this is a silly label which hides the fact that these doctrines are located in certain values. a desire to protect the weaker party from the excesses of freedom of contract. [The judge cites various academic writers to see what public policy is. I don’t think it really matters. not be enforced. giving rise to a conflict between different values within the law.. These points are understood even by the most stinky. freedom of contract (premised on an individualistic right to drive a bargain at the expense of others) is in perpetual conflict with altruistic ideas which manifest in such doctrines as duress and unconscionability. and when can it be said that an agreement is contrary to public policy. in fact they point in opposite directions. where the Bench included fucking cunts like Rabie CJ and Nestadt JA. to cover every conceivable legal loophole. This immediately raises the question what is meant by public policy.. since they are obviously closely related.] The interests of the community or the public are therefore of paramount importance in relation to the concept of public policy. it is impossible to give determinate legal answers because judges decide cases based on the set of values to which they are attracted. and to provide for all possible contingencies … it sought to ensure maximum protection of Sasfin's rights while at the same time subjecting Beukes to the most stringent burdens and restrictions … An agreement having this effect is clearly unconscionable and incompatible with the public interest. But if these values—individualistic freedom of contract and altruistic concerns about fairness—are mutually opposed. conservative judges. But it does mean that he just repeats himself here. Cowardly judges retreat into the notion of ‘public policy’. So even disgusting arseholes like the Appellate Division judges and writers from the fifties realized that public policy was a vague idea which rests on contested ideas like ‘justice’ and the ‘interests of the community’. or run counter to social or economic expedience. The judge must inevitably make a valuejudgment in deciding in which direction to go. speaking about the deed of cession which the Court decided to invalidate. the Court’s concern for the weaker party. It was obviously tailored. it must be true. For example. Then. So clearly the Court’s decision rests on the ‘burdens and restrictions’ imposed on Beukes—in other words. whether they are contrary to law or morality. 11 . these points were clearly expressed by Smalberger JA: Our common law does not recognize agreements that are contrary to public policy. It is therefore impossible for there to be a uniquely-determined right answer. Smalberger JA writes: It is heavily biased in favour of Sasfin . Agreements which are clearly inimical to the interests of the community. and what the requirements of public policy are must needs often be a difficult and contentious matter. on the grounds of public policy. Law is indeterminate5 Law is a reflection of deep-seated social forces. and therefore contrary to public policy. will accordingly. that creates massive indeterminacy in the law. These are points best made in the seminal article of Duncan Kennedy. in contract law. from Sasfin's point of view. in Sasfin v Beukes [1988] ZASCA 94. ‘Form and Substance in Adjudication’ in the 1976 Harvard Law Review. Essentially this tension between competing values underscores what we said earlier: judges must ultimately make a value-judgment if they are going to reach an outcome.

To distinguish public and private law on the basis that the former is concerned with the control of the State’s gross power and the latter is concerned with the interactions between free and equal individuals is spurious. a political and above all self regulating economic realm … The most important legacy of Realism was its challenge to the orthodox claim that legal thought was separate and autonomous from moral and political discourse. If this point was not obvious before. They argue that they promote an individualistic conception of the world and are antithetical to a communitarian view. power can be wielded by public or private parties. 6 This bit was taught horribly and very briefly. and as such the law must interfere in the public sphere to constrain that power. but it doesn’t seem at all central to the rest of what Davis says so I wouldn’t worry. the more general separation of activities into public and private spheres was also driven by a conception of a neutral. It makes completely clear that adjudication requires value-judgments. And. Horwitz writes: A picture of a decentralised. moreover. are the following: When is power being abused? What effects does this have on individuals? And how can we stop this abuse? The public/private distinction distracts from these questions and obscures the fact that we need to ask them in relation to all exercises of power. The foundational questions. not only public ones. means by which the individual can resist State interference and thus preserve his liberty. But the Crits are highly critical of these rights. comprehensive and self regulating market lay at the core of efforts to define the public–private distinction. The idea is that the State has immense power. 4.Court had only cared about freedom of contract. It sought to argue that all law is concerned with the use and abuse of power. Here we see shades of a slightly more radical critique. This should be especially obvious nowadays. where multinational corporations clearly wield far more power than the average government. which argues that the public/private distinction was a legal fiction deliberately constructed to try and insulate market interactions from regulation. Foundational attack on liberal values6 The classic civil rights are the centerpiece of liberal political theory. CLS attacked this distinction. that there are competing values in the law of contract (and of course other areas of law). And judges need to take a side in order to reach an outcome. 3. and as such only protect those concerned with self-interest. even conservative pricks like Harms DJP in Breedenkamp accept this proposition. This point was actually made by Marx in On the Jewish Question. say the Crits. Again. That is why administrative law has begun to move into the private realm. This is what Duncan Kennedy was saying. Debunks the division between public and private law Another central pillar of classic liberal legal theory is the public/private distinction. 12 . but that private parties are equally placed and as such it is unnecessary and illegitimate for the State to regulate the interactions between such parties. they are egotistic and separate man from other men in his community. Just as the analogist division between public and private law presupposed that voluntary relations of market exchange would usually make coercive regulatory interventions unnecessary. there would be no reason to invalidate the agreement. it certainly should be now: public policy is now located in the values of the Constitution. He writes that rights by their nature protect individuals.

The four interrelated propositions we discussed above and which are central to CLS derive from Marx and Realism. the defendant’s argument relied on the classic liberal distinction between vertical and horizontal application of a supreme Constitution. who advocated the classical liberal model of the State in terms of which its laws have a limited role in the socioeconomic and political structure of society. and was a response to the laissez-faire analysis of society by Carver. application against the State. The landowners in a certain neighbourhood had covenanted to prohibit the sale by any of the landowners of his property to a black person. Thus. The enforcement of every rule. necessarily involves State coercion. should exercise sufficient constraint to prevent destruction and deception. Thus a hallmark of this system is supposedly that it is less coercive than other systems.e. Hale described Carver’s preferred political structure as follows: The government. which is what Marxism tells us). Their reasoning was that although the contract was concluded between private parties. Carver thinks it is desirable for the State to ‘get out the way’ and let people engage in economic relations uncoerced. He presents an internal critique of the law. Hale’s point is that all legal rules necessarily involve coercion when they are enforced. The idea behind liberal capitalism is that the State stays out of private relations. and to enforce contracts. with rare exceptions. qualities and coins. only with the State mobilizing its legal institutions can such a covenant have any effect. or at least to a kind of influence indistinguishable in its effects from coercion. Hale’s response is basically to show how it is a myth that liberal capitalism is (relatively) free of coercion: Such a scheme [liberal capitalism] has the appearance of exposing individuals to but little coercion at the hands of the government and to none at all at the hands of other individuals or groups. a decision of the US Supreme Court. This sort of reasoning is very easy to understand through Hale. to standardize measures. he looks at what rules actually do (rather than where they come from. If the State was to enforce the contract. it would be acting inconsistently with the Constitution. Hale applies this point to liberal capitalism. Yet it does in fact expose them to coercion at the hands of both. to regulate monopoly prices and to control the feeble-minded and the otherwise incompetent in their own interest. and so workers are able to enter into freely-concluded agreements with their employers. So. This covenant was challenged as being inconsistent with the US Constitution. Clearly. Hale’s article was written in 1923. The defendant’s argument was obvious: The Constitution only has vertical application. like most proponents of liberal capitalism. But the US Supreme Court rejected this distinction. so the contract is invalid and unenforceable. then. It should not coerce people to work. who points out that the well-entrenched liberal distinction between State coercion and private legal interactions is a myth. Davis illustrates this with reference to the case of Shelley v Kraemer 334 US 1 (1948). even blatantly racist contracts like this one cannot be said to be inconsistent with the Constitution. The Realist school is represented in our reading pack by Hale. nor should it. in particular its equal protection clause. i. and in this case there is no State action involved. the covenant is a private agreement between private parties. undertake to direct the channels into which industry should flow. 13 . whether it is one of nominally private or public law. to conduct certain enterprises (like lighthouses) which cannot well be carried on otherwise. the enforcement of any such contract (in terms of contract law and so on) necessarily involves State coercion.2 Hale We have been trying to get alternative perspectives on the law. he thinks.

the comprehensive trade treaty which regulates international intellectual property laws. In other words. If you were to change property rights such that the employer has less power than he does presently. It must also be borne in mind that Hale is emphatically not a Marxist. But in 2003 an exception was agreed to. Davis’s own example of this point is provided by the rules of intellectual property law. are themselves produced within a set of power relations. and as a result. by enforcing the rules of private property and contract law. The TRIPS agreement. that countries simply made free agreements to exchange drugs as they see fit. The State enforces the rules of private property. But this is not true. a change to the legal rules changes the balance of economic wealth and political power. used to require very strict protection of such drugs by member States. 14 . then they can tell developing countries. is—by virtue of the legal rules—put in such a position that he can say to the worker: ‘Take it or leave my offer of work’. Since the worker invariably does not own enough land to support himself. We can’t easily change them. It would be absurd to suggest that prior to the 2003 exception no coercion was involved. The State. all legal rules have distributional consequences. this does not mean that we can easily manipulate the laws in order to bring about the desired consequences. because changing them requires political power—and power is of course precisely what the law is able to control and restrict. Hale makes the point succinctly thus: The distribution of income … depends on the relative power of coercion which the different members of the community can exert against one another. He is therefore compelled to accept work from employers on whatever terms they are willing to offer. which prevents the worker from using the land to support himself unless he owns it. is as deeply implicated in this system as in any other. Thus the supposedly free agreements between worker and employer are actually underpinned by the foundational rules of the legal system which afford one party far more power than the other. the rules. the enforcement of those foundational rules coerces the worker to accept work on the employer’s terms. there is a dialectical relationship between law and politics: the law deeply influences the political process but is also created within a certain political process. Thus Hale writes: To take this control by law [over workers] from the owner of the plant and to vest it in public officials or in a guild or in a union organization elected by the workers would neither add to nor subtract from the constraint which is exercised with the aid of government. The employer. So law is not neutral and it never is. He was not saying that only capitalist States involves coercion and that we must work towards Communism. In effect. in addition to producing certain power relations. So we see that rules of law are necessarily based on a process of coercion. His point was precisely that every law in every society whatsoever involves coercion. Moreover. whereby developing countries were able to obtain generics if they are facing a public health emergency. If drug companies have absolute rights to their medicines. Thus all law uses State coercion to deeply influence the relations between members of the society. who has absolute rights over certain resources. It would merely transfer the constraining power to a different set of persons. he will starve unless he gets work from an employer.Coercion supposedly doesn’t come into the private sphere. even when (as in liberal capitalism) the coercion is not obvious or direct. to fuck off if they can’t afford the price named by the drug companies. So. the entire set of distributional consequences in the society will change. even though laws have serious distributional consequences. Of course. where no such coercion exists. This obviously has a massive effect on the distribution of drugs. even those who are facing a health crisis.

which are traditionally absolute. According to traditional. Davis gets rock hard for this clever order. Firstly. The owner of those premises sold them to the respondent. Hale’s theory of law inverts the Marxist base-superstructure metaphor: where Marx emphasized the causality running from economic relations to laws. it is important to acknowledge and interrogate the rules’ effect on distribution. So that is the first point: every legal rule effects distribution. nonabsolute. absolute property rights the owner was entitled to such an order. This is not to say that Hale is incompatible with Marx. 15 . Of course the change to the rules was made for pragmatic reasons (because the police were simply unable to move the squatters). About 40 000 poor people were occupying a piece of private land.3 Davis’s wank building on Hale and drawing on Kennedy What ss 8 and 39(2) of our Constitution require us to do is to interrogate the distributional consequences of our legal rules and decide whether they are creating or subverting the kind of society prefigured in the Constitution. ultra-conservative cunt like Mogoeng J being made Chief Justice. They are not simply technical or abstract rules without real effects. but it is a change with profound consequences nonetheless. Every single rule of law has significant implications for relationships in society. The fundamental point is that the Court has changed the rules of ownership. a sub-aspect of the s 26 right to housing. The rules which make up a given legal system are not neutral or descended from Sinai or Oxford. Marx understood that the relationship between law and economic relations was dialectical. Whenever a background rule in the society changes. The owner had wanted an eviction order. Hale observes the fact that the rules of law actually change economic relations. But it would be impossible in practice for the police to somehow force 40 000 people to move. This is a point that we easily understand: it is precisely because we understand that laws can reshape society that we are worried about a stinky. It was common cause that the respondent had had a right to terminate the lease on reasonable notice. who terminated the lease on reasonable notice and called on the occupiers to either vacate the premises or accept a new lease agreement with rent about twice what they’d been paying under the old ones. The case of Maphango (Mgidlana) v Aengus Lifestyle Properties (Pty) Ltd [2011] ZASCA 100 was decided by the stinky conservatives at the SCA a couple of months ago (but is now going to the Constitutional Court). and so the law’s role here must be interrogated. accommodating set of rules which fundamentally reconfigures the distribution of wealth and power in our society. Wow! When Duncan Kennedy discusses Hale (see prescribed reading) he emphasizes two central points. Therefore the Court reached a Solomonic compromise: the squatters were allowed to stay on the land but the State had to pay the owner rent at market rates until it had provided them with housing elsewhere (an obligation imposed on the State by s 26 of the Constitution). Hale simply gives us a deeper insight into the causality running from superstructure (law) to base (economic relationships). and this construction must be interrogated. A number of poor people were leasing certain premises. the tenants came to court arguing that the enforcement of this right was unfair in the circumstances and therefore contrary to public policy. What are our ground rules and how do they affect notions of freedom and coercion? In this regard consider the case of President of the RSA v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5. They are constructed. By rethinking those rules we rethink society. Secondly. because it infringed their right to security of tenure. the relationships in that society change. as we repeatedly said. However. Now let us consider a real example of this. The point is that each and every ground rule of the legal system has profound distributional consequences. in favour of a more progressive.

labor legislation) to achieve distributive objectives by superimposition on an essentially apolitical private law background. The SCA blandly asserts the existing grounds rules as though they are neutral. Changing the rules of property law fundamentally changes the relations between owners and lessees. but understood as a matter of legislative intervention (e. constituted an infringement of their right to security of tenure.. is quite different. In this case. If the period of notice is not specifically agreed upon.. ‘What’s going on here? The ground rules are reproducing certain patterns in our society. do we not have an obligation to interrogate the values underpinning these rules and to determine whether they are compatible with the values expressed in the Constitution? Hale points us in the direction of doing this. it can be terminated on notice. There lies the point: when we study private law we need to consider politics as much as when we consider public law and legislation. as I have said. progressive taxation. But Hale shows us that one cannot do that. on the other hand.. The distributive issue is present. Beyond the period of the lease. And it is obvious in South Africa that there is extreme insecurity of tenure for the vast majority of citizens. Hale invites us to say. He matter-of-factly points out that lessees’ rights end when the lease is lawfully terminated. that contracts contrary to public policy must be invalidated) require such an interrogation. law plays a major role in the form of ‘the rule of law’. The law perpetuates this position.Brand JA discusses the rights of lessees as against the rights of owners. a defining element in the liberal conception of a good society.. Sections 8 and 39(2) mandate this interrogation most obviously. But. private property. If the period of the lease is left undetermined. to recap: Hale is suggesting that the background rules are not neutral and each and every one of them has real effects.. and to assert and apply the rules of property law without interrogating them in light of these facts is unacceptable. given our Constitution. but in fact it is immanent in our legal system more generally. freedom of contract) or from the will of the people... or from both together in some complex combination. and if we want to break out of those patterns we need to interrogate and change the rules’. the appellants had no security of tenure beyond the duration of the leases. The right of an owner to possession is of indefinite duration . So.g. the residual rules require that the notice must be reasonable . at least when discussing private law: In the liberal model. and that an owner can terminate a lease and eject the occupiers as he sees fit. but Hale gives us the first step. It therefore cannot be said that termination in accordance with the leases. The position of owners. These rules have massive distributional consequences. This reasoning is of course absolutely correct if you take the existing laws of property as a given. But it is a point that we tend to miss. On this basis it was said that the lessees had no rights at all against the owner.. The SCA ignores this fact. and so the owner was lawfully entitled to kick them the fuck off his land on reasonable notice. This is a difficult task. But the content of the background of legal rules is seen to flow either as a matter of logic from regime-defining first principles (rights of bodily security. the lessee has no security of tenure . We need to ask whether the 16 . It is unacceptable to take for granted unquestioningly the background rules of property law which say that ownership rights are unfettered. Put in another way. Even the ancient rules of the common law (to take Davis’s stock example. this security of tenure was circumscribed by the leases themselves. but that owners’ rights are eternal: The duration of the lessee’s tenure is governed by the terms of the lease .

So freedom of contract can get out of control. Legal concepts are not self-defining and cannot determine outcomes. see the Davis and Albertyn article. For example. 4 The ten propositions which summarise CLS Ten propositions which summarise everything we’ve learnt about CLS: 1. Yawn. And this missing link must be found outside the traditional legal tools. how do we change them? Hale is a revolutionary writer because this interrogation is almost never done. the law of contract is fundamentally an attempt to mediate the competing principles of pacta sunt servanda and freedom of contract on the one hand. 8. ‘What the hell. But there’s another side to it: contracts also constrain the parties and can thus lead to unfairness. 3. 10. Many legal rules reside in the background. misrepresentation. The Realists argued that judges must be explicit and rigorous about the values which are guiding their decisions (though we would now regard the methods they recommended as rather quaint). Legal rules play a significant role in the construction of social life. 9. who provides some very valuable further insights. these convictions are contested. We now discuss these in more detail. Of course. or that the traditional legal tools (precedent. This is not a radical claim that anything goes. Rules of law have distributive implications. No amount of legal doctrine tells you which set of values wins. It is just saying that there’s something missing between these tools and the outcome. 5. 1 Legal outcomes are undetermined by legal reasoning This point flows from CLS’s argument that there are pervasive gaps in the law. From all this flow transformative possibilities for society. Legal norms and outcomes are underdetermined by politics and ideology. 7. 2. in some idea of political or value-based reasoning. Legal outcomes are undetermined by legal reasoning. and related doctrines apply the brakes. 4.background rules of our legal system comply with constitutional values. and fairness. and. Rules of law reinforce certain cultural and ideological discourses. Freedom of contract certainly encapsulates personal dignity and autonomy. communitarianism and good faith on the other. 2 Legal concepts are not self-defining and cannot determine outcomes Legal concepts don’t simply admit of one meaning in an unambiguous fashion. and duress. Legal constraint is in effect a process of interpretation. None of the formalist tools of legal analysis close these gaps. if not. Most adjudication in hard cases therefore requires a value-judgment to derive an outcome. That’s the whole point of contract law—to strike a 17 . I like the plaintiff. 327-334). that judges just say. Also see Kennedy (at pp. Judges bear responsibility for the social impact of their decisions. 6. so I’ll decide in his favour’. For further reading on the development of Hale’s ideas by CLS scholars. logical deduction) have no effect. It is a relatively modest claim: it is not saying that the law is totally indeterminate. as Cameron JA says in Brisley v Drotsky. Choices are therefore to be made in deciding the case. and these choices are influenced by socially-constructed sensibilities and moral convictions.

Rather. 5 Judges bear responsibility for the social impact of their decisions If you accept the above. Mogoeng defended his own decision. but simply that the legal materials don’t constrain absolutely or completely. Why do we say this? Well. judges need to make a call on which principle must triumph in a given case. so he made a choice to apply it anyway. no matter what. which applied Corbett JA’s ruling to reach a similar conclusion. contrary to the crude Marxist analysis. Mogoeng must have known that the precedent didn’t actually bind him anymore. you can’t simply read off a legal rule by analyzing the economic framework. if the materials are as plastic as suggested. For example. The law is itself underdetermined by the base. But the lawyer would’ve said that the law should change. In this ruling Corbett JA had reduced a convicted rapist’s sentence from four years’ imprisonment to one year’s imprisonment. ‘But hang on. If the legal materials do not determine outcomes. his lawyer would’ve quite correctly told him that he had no delictual cause of action available to him. Were this not so—if freedom of contract was the only value at play—then you could teach contract law in one sentence: All agreements are enforceable. Even someone as stupid as Mogoeng must have known that minimum sentencing legislation had been passed in 1997. by saying he had to follow precedent. and so it was worth bringing the case. when Ewels brought his delictual action against the police in the 1975 case of Minister of Police v Ewels. 18 . requiring life imprisonment for rape in the absence of compelling extenuating circumstances. 3 Legal constraint is in effect a process of interpretation The point here is that a judge’s being constrained by the legal materials (most obviously judicial precedent) is often a result of the judge choosing to be constrained. So Mogoeng’s decision to nevertheless apply the 1988 judgment was clearly a choice. So Mogoeng’s defence is extremely weak: CLS scholars will say. during his JSC hearing Justice Mogoeng was criticized for applying. So that is why the ‘constraints’ imposed by the law are really matters of interpretation. then it follows that judges have choices. in a 2004 judgment. But in truth there are inherent tensions which mean you cannot simply read off an outcome by looking at the legal materials. His reasoning was that the rape was not so bad because it occurred within the family and thus the victim knew her rapist. there is a dialectic between the law and the base. the law always changes. Often the outcome is determined by the materials—or why have law at all?—but at some point the level of constraint yields or dissolves. the judge decided to remove the legal impediments which stood in the way of Ewels’s victory. then it means that judges are making choices to reach their outcomes. even ignoring the Constitution. a 1988 ruling by Corbett JA. abandoning the existing precedent which said that Ewels had no case. And the fact that you made that choice shows us something about your worldview (specifically. Let us ignore for the moment the fact that the 1988 judgment was overruled in 2001. you made a choice here. and the legal rules feed back into the material relations and shape them. 4 Legal norms and outcomes are underdetermined by politics and ideology This point says that. or at least interpreting the materials so as to create a constraint.balance between these two. you fucking prick. In short. that you were happy to endorse Corbett JA’s misogynistic reasoning)’. Rather. this is a modest claim: it is not saying that a judge can abandon the legal materials at will. And in fact the judge did change the law. For example. In other words. Again. and that the Constitution was enacted in 1994. the set of rules is not uniquely determined by the base.

When the Constitutional Court ruled that gay marriage was possible. The rules thus influenced the ideological construction. We can wank all we want about the circumstances in which public policy requires a contract to be set aside. which we also discussed previously. For example. no matter how indigent he is. but the inescapable point is this: we realize that unfettered freedom of contract has certain distributional consequences. The crucial difference. We must ask: Which rules have we chosen? Which market is thereby constituted? More interesting is the second example: family life. But the majority of the Constitutional Court held otherwise. To Davis in the court a quo it seemed obvious that she ought to have such a claim. Basically. The same is true of all the preceding cases which had given homosexual couples various rights. There is also no such thing as ‘the’ market: since the market is structured by legal rules. before the Civil Union Act) did not. Then in Volks NO v Robinson a woman who had lived in a heterosexual life partnership for twenty years with a now-deceased man argued that she ought to be in the same legal position as a spouse. If you give all the rights to the owner and none to the lessee. our conception of family life began to change quite radically. you are going to make bad shit go down. Similarly with contract law. so this is the natural and immutable state of affairs’. We previously discussed the Maphango case regarding the rights of lessees and landowners. ‘It’s like this and always has been. 19 . There is nothing natural about this. The SCA said that lessor’s control over his property is unfettered (except by the lease itself). as the case showed. That was made obvious in Modderklip. was that straight couples had the choice to get married. but it was made to seem natural because the rules giving rise to it were so embedded. Of course the existing rules do say that the owner has all and the lessee has none. 7 Rules of law have distributive implications Here we come back to Hale. but there rules are not natural. If Ms Robinson had been in a homosexual relationship. We tend to regard family life as being part of the private. there are many different markets which could be created. she argued that she ought to have a maintenance claim against the deceased’s estate. 8 Rules of law reinforce certain cultural and ideological discourses The legal rules display certain political or ideological frameworks which render ‘natural’ particular consequences. the law is deeply implicated in the process of distribution. This conception of property has serious distributional consequences. the subordinate status of women was rendered natural by the law for many centuries (and it still is in African customary law). no market can exist without legal rules: at the very least. she would’ve had such a claim. This was a highly ideological decision and has had a serious effect on family life. What a cunt of a decision. As these cases percolated through the courts. saying that if the man liked it he shoulda put a ring on it. but gay couples (at that stage. But in fact we know several examples of a change in the legal rules fundamentally restructuring family life. this changed the whole nature of family life. In truth. The first is the economic markets. according to the Court. we need rules to allocate property and regulate contracting. non-legal sphere. So the very idea of a market presupposes the existence of the legal rules which constitute it. When a law has existed for a long time we tend to think. and we are unhappy with these consequences. That is.6 Legal rules play a significant role in the construction of social life Let us consider two examples demonstrating the truth of this proposition.

No-one says. and not complacently assume that the law is perfect as it is. it has ideological. It then stands to reason that the constitutional imperatives encapsulated in ss 8 and 39(2) mandates us to enquire into these consequences. until the parties returned to court. (The inaccurate parody of Realism is that it says that judges make decisions based on what they had for breakfast that morning. Does the current legal system create the kind of society envisaged by the Constitution? We are not saying it’s uncontroversial what kind of society is envisaged by the Constitution.) The dominant view at the time was that legal outcomes could be deduced rationally from various abstract legal concepts like freedom of contract and property rights. so that any challenge to their validity seems like madness. The details of the order are not important. So Dennis gave an interim order for a week allowing her to do so. ‘Children live with their parents because the law makes it so’. Dennis’s first response was. eternal truth. The point is simply that you must test the laws against the vision you think it envisages. 7 Because this is about CLS. to generate unique. rational answers by themselves. But this hardly ever happens. The child’s psychologist said it was in her best interest to move to her friend’s house. 5 Jaco on Tushnet7 CLS’s origins lie in Realism. We just think that’s the way it is.9 Many legal rules reside in the background Many rules reside in the background. we just think that the state of affairs has arisen naturally. so Realism was at that stage quite radical. not Davis’s. The point is that the case took the background rules and pushed them into the foreground. The rule that parents get to choose where their children live is basically never asserted in legal argument. ‘This is madness!’ But then he realized. so it is important to look at Realism’s central tenets. It should be obvious from all we’ve been saying that CLS has a lot to offer us in thinking about these constitutional imperatives. We must engage with the normative framework of the Constitution to see whether it is consistent with the existing body of law. naturally. But then this 16 year old bitch got pissed with her strict parents and decided she was going to take them to court seeking an order allowing her to live at her friend’s house. In fact. political and social consequences for society. and that is what the questions are apparently going to be on. and in fact it fundamentally structures family life. because her parents really were motherfuckers. The Realists pointed out that these legal concepts were too vague. Realism in its threadbare form says that judges make decisions based on their personal convictions. or indeed contradictory. then it is not just a neutral. But it’s NOT FUCKING MADNESS!!! When we are forced to look closely at the rules we see how mutable they really are’. of course. we don’t even realize that they are rules. This is related to many of the points we’ve just been making. But it’s there. But beware that what Jaco said here would (presumably) fall under his section of the exam. Dennis’s favourite example of this is again family law-related. I’ve included it under this topic. so I have basically summarised Tushnet (or quoted him wholesale) and thrown in Jaco’s free-styling as appropriate. This is the veneer of normalcy created by the legal rules. 10 From all this flow transformative possibilities for society If the law has the characteristics described above. ‘Madness…? No. 20 . Jaco’s lecture was heavily based on Tushnet. no one thinks of this as a rule at all. so we tend not to notice the background rules. We tend to take the rules for granted.

So Realists were highly critical of the orthodoxy of the time. the legal materials were indeterminate and thus the judge was not able to adjudicate neutrally. and are in opposition or contradiction to one another. Unlike the Realist critique. the Realists indeed said that they couldn’t. therefore. The Crits’ attitude was buttressed in their second intellectual source. When judges decide cases they are inevitably giving effect to a single. But they never denied that judges should strive for objectivity. then CLS’s motto is that ‘Law is politics’. Rather. If Realism’s supposed motto is ‘Judges decide cases based on what they had for breakfast this morning’. The Realists believed that by and large the values at stake were shared by all members of society. 21 . in fact. and so there is no single objective meaning of the legal materials. that their method of policy analysis would lead to objectively fair and correct decisions. using the critical tools taken from Realism itself. 8 This stuff about Kennedy is a Jaco interlude. But the Crits attacked the Realist’s constructive project. everyone has different political convictions and the law is the battleground for these competing convictions. In fact the Realists recommended that judges do careful ‘policy analysis’. CLS draws heavily on the Realist school. We therefore have substantive rules of law that are individualistic and some that are altruistic. Their problem was essentially that it is a myth to suggest that there is an objective way to weigh up values and interests. Throughout our lives we on the one hand want to be self-directed and on the other other-directed. and they had faith that judges could ‘balance’ the competing interests in a strictly rational way. They felt. were themselves judges. CLS.The Realist critique was aimed at the level of adjudication. and weighing these up as logically and rigorously as possible in coming to a decision. Many leading Realists. saying that Crits think all law is politics doesn’t tell us what their politics actually consists of. that judges are making political judgments and that legal rules are political constructions. relentlessly revealing laws and legal reasoning to be a politically-constructed myth by ‘trashing’ them (basically a deconstructive method of reading legal texts) but not actually advancing a unified political agenda of their own. fact indeterminacy: the facts pleaded before a court are themselves indeterminate and come structured in a particular way. he had to make a value-judgment.8 used the idea of ‘the fundamental contradiction’: humans by their nature are subject to two warring moral impulses: individualism and altruism. Secondly. rule indeterminacy: rules are expressed in language. which showed that the law was an instrument of power directed primarily towards the preservation of economic interests. not lower levels of legal interaction. Firstly. making explicit the values and interests at stake. but they did have a constructive project too. the work of Marxist historians like Morton Horwitz. Their focus was on ‘interminable critique’ (see further below). Duncan Kennedy. who had become aware that their role was not simply to apply deterministically the legal materials. embracing their intense skepticism about legal rules and legal reasoning. This contradiction feeds into the legal materials (which are obviously constructed by people). It is important to note that the highly skeptical attitude to law adopted by Crits tells us nothing about their political commitments. then. One of the founders of CLS. CLS did not only look at adjudication. Two strands developed out of this basic realization. and reasoned thinking. The Crits also stressed the way the legal rules are created out of power relations. contested political morality. impartiality. I’m not sure how relevant it is. which must be interpreted. Can judges therefore never be neutral or independent? To an extent. took these insights and used them to show that law was inescapably political.

CLS attacks this analysis on three grounds: 1. Therefore we cannot say that we must choose the legal rule which satisfies the most people’s preferences. In other words. Therefore the ‘rule’ itself really operates like a standard (since a standard governs the rule’s non-application). 9 The rule/standard distinction is the same as the rule/principle distinction we learnt in first semester. unrepresentative segment of society and have been socialized into holding a particular set of beliefs. 3. therefore. 22 . Kennedy said that the altruistic/individualistic content of the law is reflected in or is closely correlated with the form of the law.9 Kennedy based this correlation on an analysis of a number of private-law decisions of the US Supreme Court. That is. the ‘rule’ that every freely-concluded agreement is enforceable is subject to the standard that contracts contrary to public policy are invalid.e. i. They did not believe. that judges could rationally and objectively do policy analysis. that if the legal materials’ content is contradictory or indeterminate then the same must be true of their form. Finally. And if the values are socially and legally constructed we could simply decide to abandon our existing values. and altruistic laws tend to come in the form of flexible standards. We previously gave a broad account of the way that CLS rejects the Realist’s constructive program of policy analysis. But if we relax this assumption and broaden the range of values we ought to pursue. the Crits rejected the idea that judges could apply shared values to reach decisions. we end up where the Realists began: with a list of values we ought to think about. The Crits’ attack must be understood against the form of policy analysis which was most popular at the time they were writing. the one that allows society to achieve the most of what its members want given the existing distribution of wealth. In other words. the rule which you choose will define the distribution.More controversially. to yield determinate decisions—in other words. They pointed out firstly that social values are too abstract. as soon as we try and make law-and-economics more realistic we end up with the platitude that we need to make a good value-judgment by considering a lot of different factors. so one cannot take the distribution of wealth as given. namely law-and-economics. Kennedy’s critics said. It is therefore impossible to take the values as given and generate legal outcomes therefrom. so we can’t decide what outcome we want based purely on the existing values! We need to know what values we want to create. To give a simple example. For example. They pointed out that judges are drawn from an elite. people disagree on the values. The values will change based on the outcome we choose. One therefore cannot say that we must decide whether to enforce the contract by taking the distribution of wealth between the parties as fixed. individualistic laws tend to come in the form of all-ornothing rules. and most profoundly. Legal rules and the distribution of wealth actually shape people’s preferences. and indeed contradictory. ‘rules’ in truth can approximate standards and vice versa. 2. the attempt to do value-based legal reasoning in a ‘scientific’ way. Reducing everything to the maximization of efficiency is too simplistic. More fundamentally. Law-and-economics says that the correct solution to any legal problem is the one that is most efficient. Moreover. however. The legal rules shape the distribution of wealth. We said previously that CLS attacked the Realist’s method of ‘policy analysis’. the legal rules structure society and its values. they are just like the legal concepts which the Realist’s had critiqued. This response was particularly firmly rooted in the Marxist class analysis on which CLS drew. the rule we choose actually changes the preferences. the decision to enforce a contract (as opposed to invalidating it) has an effect on the distribution of wealth as between the contracting parties.

would be the end of politics). provided that three conditions are met: 1. as Jaco repeatedly says. 2. But of course there is great value in critiquing existing society. one might say.) Tushnet draws his article to a close by giving the CLS critique of rights. it can be argued that CLS’s attitude precludes the possibility of any stable constructive program: the whole point of CLS is to decentre and disrupt whatever understandings happen to be settled. seems to be part of the postmodernist. the surrealists insisted that they were modernists. could never operate as a critique given that it takes existing tools of legal analysis for granted. was the attempt to build certain and unified knowledge systems. In art. and that their suspicious. The whole point of CLS is to reveal the limits and the abuses of existing understandings and social orderings. It must be designed as a critique rather than as a defense of the existing order (or a slightly modified version of the existing order that. 3. the tradition which has spawned CLS and deconstruction is one of ‘interminable critique’. there is a ‘deep sense’ in which CLS indeed has no constructive program. The modernist program ‘consists of shattering congealed forms of life by showing that they have no particular integrity’. The work should not be defended on grounds that suggest that something more enduring than interminable critique might result from following it through. Any critique of the existing order. postmodernism was the attempt to tear them down. Tushnet disagrees without saying why. and not in any way advocate for the preservation of the status quo (or even advocate for minor reforms to the status quo while being content with the basic framework)—it must be a wholesale attack on the existing order in its generality. project.What positive stuff can CLS say? Tushnet immediately concedes that. In other words. it must take a big runny shit all over the existing order. Tushnet ends by saying that CLS is ‘the form that modernism takes in legal thought’. Rights are too abstract and contradictory to determine outcomes in particular cases. because they are not a dream cure for the subject’s legal dilemmas. and the tools of CLS are one way of achieving this. and showing how power really works. showing how common understandings of the way the law works are grossly misleading. that it ‘displaces settled understandings’ and insists that our realities are created and recreated daily. Human rights have structural limits and. more importantly. It is simply saying that we must not think in a utopian way about rights. rather than the modernist. questioning attitude to settled understands of reality was a modernist project. And. the work must be content to be nothing more than a purely critical and negative attack on the orthodoxy. We must therefore take care when valorising them. whatever its form—even a classic legal or social analysis—is consistent with the project of CLS. This forces us to have recourse to underlying values or a balancing process. Modernism. but that is only because the current orthodoxy advocates capitalism. to criticise the existing order whatever that order is. But such recourse will not solve the problem. In other words. then. CLS. There is indeed controversy about this. But very little turns on this question of 23 . It is true that many Crits are seen as the advocates of socialism or its variants. for example. and not try to replace it with a constructive program of its own. (Some would say that a classic doctrinal analysis. especially of human or constitutional rights. CLS is not saying we should get rid of these rights. once modified. In fact. One might think that this sounds more like postmodernism. The work should actually operate as a critique. Rosenfeld said something similar in the introductory lecture. although all Crits had some recommendations for reform. because of the points we made previously. But in the social sciences this same attitude came to be described as post-modern. The argument echoes CLS’s more general critiques of legal rules. their meanings are indeterminate.

11 I’ve not ever covered this expressly but I’m sure you guys can get an answer by drawing on Davis. but perhaps it’s worth looking at the summary. Jaco and Tushnet. when you think about how pervasive these countervailing principles are. 12 I didn’t make this particularly explicit but this relates to the balancing of competing interests in the course of ‘policy analysis’. (10) 4.) Explain your understanding of the CLS slogan 'law is politics' (20). (i.) On page 516 of the article Tushnet makes the point that 'any critique of the existing order is consistent with the project of CLS. Unger is interesting but quite hard to follow. Unger’s main point is that freedom of contract is limited by countervailing principles of fairness etc. as long as three conditions are met’.whether this attitude was the end of modernism or the start of post-modernism. 3.e. what Davis said about 500 times).) According to Tushnet. Name those conditions.) Formulate five central tenets of CLS (5).) How does CLS criticize the Realists' constructive method of balancing? (5)12 5. This controversy really goes to show that modernism and post-modernism are continuous with one another. so as to trick your marker into thinking you read it. thinking of freedom of contract as the foundation of our contract law seems a bit unconvincing. (10) 10 Jaco stated very briefly at the end of this lecture that the Unger article ‘is only examinable from page 616 to 633’. Explain. My advice is simply to refer to Unger whenever you make this point about the competing values in contract law. I hope Jaco wouldn’t ask on something he didn’t teach in lectures at all. 6. We mustn’t get bogged down in this semantic controversy. 24 . CLS was a reaction or response to law and economics.10 Questions on this section: 1. 11 2. and that.) Explain why Tushnet believes that CLS is a form of modernist program.

as the Constitutional Court has clearly said it is. so that’s why they’re here. then it is deconstruction. the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge. More broadly speaking. in which Jaco explained at length how deconstruction arose and what it is. to describe a way of looking at something anew. If there is one discourse in the social sciences that is founded upon the acceptance of the principle of difference itself. then. because deconstruction. of whom Heidegger was the most famous. above anything. Also remember to refer back to the Rosenfeld lecture. As Sachs J held in the same case at para 134: It is no exaggeration to say that the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled. where he introduced us to deconstruction. Despite what the German word evokes to English speakers. then we would do well to study deconstruction. this is not meant to be a destructive act. accommodate and accept the largest spread of difference. to transcend them. or the subjectivity of experience). but the acceptance of the principle of difference itself. 25 . So if it is law. if you haven’t already done so. 2 Deconstruction in historical perspective14 The German word destruktion was a technical term used by the early-twentieth-century phenomenologists (i. 13 14 Copied directly from Jaco’s introduction to his note on ‘Force of Law’. Thus the aim of destruktion was not to destroy our initial understandings but rather to overcome their limits.e. Deconstruction is undeniable in this endeavour and it is in order to better equip us for this task that we study it in the law school. I think it is important to read and understand these first. that our society must accept the principle of difference itself. At the very least. Jaco said it is an example of the deconstructive method in action (he deconstructs the SCA’s judgment in Breedenkamp). This section is based on my notes from the tutorial.DECONSTRUCTION 1 Introduction: Why study deconstruction?13 The answer to this question comes to us through the Constitutional Court’s jurisprudence. is about the force (in all its dimensions) of the principle or the fact of difference. What becomes normal in an open society. Perhaps you should look at the article prescribed for the tutorial. which accepts the variability of human behaviour. is not an imposed and standardised form of behaviour that refuses to acknowledge difference. what is statistically normal ceases to be the basis for establishing what is legally normative. of suspending one’s first observation and looking deeper. those concerned with human perception of phenomena. it is taking an object apart with a view to re-establishing or re-understanding it in a more nuanced way. which obviously has the force of law. Rather. See National Coalition for Lesbian and Gay Equality and Another v Minister of Justice and Others 1998 (12) BCLR 1517 (CC) par 134: What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are.

and racism had caused so much devastation in the world. This is not to say that the ethics of deconstruction has been successful in overcoming the problem of the modern subject. where a text collapses a binary opposition upon which that text in fact relies. And there is no end to this process. Deconstruction tries to find the limitations of the text itself. Deconstruction is a reading of a text. self-interested subject— since it was out of this idea that the excesses of the 20th century had occurred. colonialism. Indeed. every text is interminably deconstructible. like CLS. to see how the text reveals its own limitations. There was almost reverence for difference. Deconstruction does not say ‘You should’ve included in your text this or that’ or tell you what the correct argument or rights answer would be. how it betrays itself. namely one that does not use outside standards. Thus. It looks at how the text unravels of its own accord. There was at that stage great concern with how nationalism. like CLS. This ethics developed in a particular historical moment. politically open-ended. Deconstruction just notes the limits of the text. 26 . of the idea of the emancipation of the rational. All texts are constructed. rather than applying any set of outside standards or interpretive rules. But it seeks the evidence of those absences within the text itself. but one of a particular kind. but that construction must be closed. These tenets make it tempting to say that deconstruction—again. We are simply noting a shift in Continental philosophy away from the veneration of human 15 To tie these rather abstract claims to Jaco’s article: Jaco claims that what is being excluded from the Breedenkamp judgment is good faith. There was profound uncertainty about Enlightenment philosophy. This led to the so-called ‘death of the subject’ and the rise of plurality. what is excluded and suppressed and marginalised. in an attempt to overcome the disastrous polarizations of the time. because it only works with the text itself. much like CLS—leads to moral relativism or moral nihilism. His disciples used this term to describe a certain approach to reading texts which differs from destruktion but retains the idea of taking apart and overcoming limits. deconstruction reveals cases where the text achieves precisely the opposite of what it sets out to do. suddenly. difference must be respected and taken seriously.Jacques Derrida drew upon these ideas in coming up with ‘deconstruction’. shaped by our own perceptions. that is what many critics have said. texts are finite and as such they must end. or where a text is contradictory or incoherent. and leave some things out. namely post-World War II Europe. He claims that it is contradictory to reject fairness as a freestanding requirement of contract law but then to say that public policy (which Harms DP is quite happy to use as a freestanding way to invalidate contracts) is based on fairness. That is why one of the key moments in this history was the questioning of dominant ideologies. Jaco claims (perhaps) that Harms DP is setting up a binary between the rule of law and the invocation of fuzzy values like fairness. but then he undermines his own binary by using fairness within the supposedly rule-like public policy test. For example. Deconstruction (in this sense. Thus developed the ‘ethics of alterity’. The disciples of Derrida said that what deconstruction amounts to is an openness to what is other. the ‘ethics of otherness’. In its ethical moment deconstruction is an attempt to achieve justice. where it is a technique of reading texts) is not the same as simply interpreting a text. Deconstruction is therefore.15 Derrida says that all texts are deconstructible. But that would be to ignore deconstruction’s ethical dimension (which admittedly came much later than its methodological aspect). Why? For one. which had failed to isolate itself from the deprivation and suffering which had occurred. identity politics. There was profound suspicion. deconstruction (at least in its methodological aspect) is a form of interminable critique. a relentlessly negative attack which entails no constructive conclusions. Deconstruction looks for the testimony of that which has been left out. and he includes both written texts and speech: even speech omits certain things and bears the mark of a certain ideological construction.

once it is revealed. as a set of textual strategies which responded to structuralism. ‘irrational’ images like melting clocks and shit.e. the irrationality that is latently there. to which I am not directly a part. For example. then I am ‘criticising’ it. is not nihilism. texts—up to more justice rather than less. that which is hidden but. precisely because it lends itself to this kind of misunderstanding. The shift was reflected also in art. because I am not looking from an internal perspective at the inherent limitations of the text itself. then. 27 . particularly surrealism. That is why it is linked to psychoanalysis and law. ‘The Other’ has become a name for difference. because it only relates to the internal failures of a text. To make Jaco’s lecture clearer I’ve basically just copied in bits of the articles. But I am not deconstructing it. we are here concerned with deconstruction in the first sense. Anyway. but it does provide the only available way of seeking justice. This was the opposite of the totalitarianism which had characterized much of the first half of the 20th century: totalitarianism is by definition the attempt to destroy plurality. The dominant discourse suppresses good faith but. This lecture was based on the first part of the Balkin reading (no page numbers) and Fagan 198-200. Deconstruction is concerned with the absences within a text. We must first therefore learn what structuralism is. once revealed. Deconstructionism. it shows the limits of the liberal construction of contract law. Deconstruction also attracts terms like ‘the margins’ and ‘marginality’. For example. the good faith portion of our contract law is a dangerous supplement to the liberal veneration of freedom of contract. broader sense it is almost a synonym for ‘criticism’. if I read an article and say that I disagree with it because its premises are empirically false. law can never fully satisfy or contain justice. as a response to structuralism. Thank G-d. It is at those margins that deconstruction situates itself. or for not-me: the other person. But not quite. and. which decentred reality and used incongruous. In this second. as a more general word for criticising the incoherence of a position. Deconstruction’s role is to open laws—which are. certainly. but also anything and everything that is not personal to me. in openness to what is contained beyond those margins. It might be preferable to refer to it as ‘the dangerous supplement’—a term Derrida himself used for it—i.rationality towards a criticism of this Enlightenment project. Deconstruction also looks at the unconscious element in the text. He noted that law was not justice. at least in this second moment. 16 17 Which of course we ended up not studying. but it is not an ideology in favour of total absence or destruction. of course. The name ‘deconstruction’ is perhaps unfortunate. but at the same time we cannot conceive of justice without law. This goes back to the fact that all reality and all texts must be contained within certain margins. Justice was sought in the attempt to open laws to otherness and plurality. to what is absent. secondly.16 3 Balkin and Fagan17 (a) Introduction Balkin points out that deconstruction has two forms: firstly. and then see how deconstruction reacted to it. can relativize the dominant discourse. In other words. Only in the 1990s did Derrida himself consider the relationship between deconstruction and justice. we must suspend all premises and rules of interpretation from outside the text and just look at its internal incoherence.

manipulable aspects of language. And we could just as easily use the word ‘cat’ to pick out a dog. to be distinguished from parole or speech. then what does? Saussure’s answer is that it is the sign’s relationship with all the other signs in the language-system that determines its identity. Anyway. linguistically. and even when they are able to create new meaning it doesn’t destabilise language completely. The synchronic analysis brought out the systematic or structural nature of language.(b) Structuralism So what is structuralism. the way that language changes through the course of history. is an event: the concrete manifestation of langue when an individual appropriates and uses it in his speech. This system of language Saussure called langue. for Saussure. structuralist approach was that the users of language were now seen to be constrained by the language system. The synchronic analysis focuses on the fixed. Saussure studied it synchronically—a revolutionary idea at the time. on the synchronic analysis it was seen that in fact it is only very rarely that new meaning is developed. Langue is a structure: a collective. The diachronic analysis focuses on the variable. It is completely arbitrary which object in the real world is picked out by a particular sign. the way that language operates at a particular point in time. the word ‘dog’). and the signified. This is really the point at which the synchronic analysis yields crucial new insights. he just says that it is not as manipulable as previously thought: subjects can’t create new meaning at will. the words ‘dog’. and focused on the langue. Thus the structuralist approach was said to ‘imprison’ us in language. But in French they have only one word. One of the implications of the synchronic. timeless dimension. The point is that we are only able to attribute meanings to signs because they are different from each other: ‘No sign is sufficient unto itself: it is what it is. by virtue of what it isn’t. Saussure does not actually say that language is unalterable. but is in fact embedded in a deep structure. the term ‘sheep’ does not in English refer to the sheep’s meat. Whereas language was traditionally analysed diachronically. the way the constituent elements coexist and interact. For example. the central feature of language. which is the semantic concept or meaning of the signifier (e. Thus the differential relationship between ‘sheep’ and ‘mutton’ 28 . in English we have the terms ‘sheep’ (to describe the living animal) and ‘mutton’ (to describe its meat). By separating out and focussing on the abstract system of language which underlies each concrete manifestation. ‘hond’ and ‘inja’ all pick out the same concrete object (a dog). to describe both the animal and its meat. Because we have the term ‘mutton’. unstable. Saussure made his synchronic analysis possible. But if the object picked out by a sign is completely arbitrary. Each sign has two facets: the signifier. First we must understand the difference between the ‘diachronic’ and ‘synchronic’ analyses of language. ‘mouton’. on the other hand. the sound pattern (e. For example. this thing that deconstruction responded to? The key structuralist was Ferdinand de Saussure. So Saussure distinguished langue and parole. and cannot exist independently. The sign is.g. social system with an existence independent from the individual. and does not determine the identity or nature of the sign. Parole. as had previously been thought.g. These two facets together make up a sign. was there anything more substantial that the synchronic analysis revealed? Saussure understood language to be composed of a system of signs. the concept of a dog). Each use of language is not unconstrained and innovative. Whereas on the diachronic analysis it was felt that speakers could manipulate and change language as they saw fit. if we chose to do so.’ The key concept is this idea of ‘difference’.

meaning is produced as a result of a particular relationship: reader—text. one shows how the reasons for privileging A over B also apply to B. These are helpful examples. Difference. for Derrida. Finally. then. Relatedly. Balkin tries to explain some of deconstruction’s characteristic techniques. is one of the key ways in which language is a structure which constrains language use. Anyway. One may also consider how A depends upon B. this is clearly an incorrect way to do so. or is actually a special case of B.determines the meaning of each. then meaning is based on an endless chain of differences. There is no ‘master reader’ who can give the definitive. That is why both it and structuralism are ‘anti-humanist’: they deny the power of the sovereign subject to at all times manipulate language to suit his purposes. then the meaning of each sign is forever incomplete. it denied that the structure created meanings which were stable. and so on forever. and how deconstruction tries to undermine this privileging. And no reader is ever neutral or morally sanitised when he approaches the text. So. This insight was derived ironically by taking Saussure’s own concept of difference to its logical conclusion: if the meaning of any sign depends on its relationship with other signs. but remember that there is no closed list of techniques which deconstruction uses. and that other sign depends on further signs for its meaning. for it ignores the fact that deconstruction accepts structuralism’s anti-humanist insight that meaning is embedded in a language-system over which neither authors nor readers have control. thus far. Thus deconstruction denies that the text contains a complete. If each sign depends for its meaning upon another sign. Because meaning must always to be found in this endless chain of intertextuality. For example. political. Thus we have the ‘death of the author’: we can’t draw out the meaning of the original author. the reader must construct the meaning. Derrida’s aphorism ‘iterability alters’ means that the insertion of texts into new contexts continually produces new meanings that are both partly different from and partly similar to previous understandings. was that the meaning of a sign changes when it is placed in new contexts. Although that is often the way deconstruction is characterised. But. because he is constrained by the language-system. deconstruction shares structuralism’s basic ideas. while deconstruction accepted that the subject was embedded in a structure over which he had no control. one might look for what is deemphasized. stable meaning which is inherently fixed. universal or ahistorical. It is important to see that although deconstruction ‘eliminates’ the author and stresses the instability of meaning it does not follow that a text means whatever the reader wishes it to mean. overlooked or suppressed 29 . religious beliefs—themselves constructed from other texts—which he brings to the text. the author can never fix the meaning of the signs he uses. He has moral. (c) Deconstruction Deconstruction agrees that we are always caught or enveloped in language. the subject does not have full control. Therefore a text has a different meaning each time it is read. Derrida stressed the ambiguity and context-dependence of all meaning. Rather. The result of this. objectively correct reading of a text. Balkin explains how a text will often ‘privilege’ one term over its opposite. or how the reasons for B’s subordinate status apply to A in unexpected ways. Thus signs are continually taking on new meanings as they are appropriated and used in new contexts. Thus meaning is not only ‘different’ but also ‘deferred’: the meaning of sign A depends on the meaning of sign B which depends on the meaning of sign C.

But this was to miss the anti-humanist side of deconstruction: the fact that meaning is not fixed by the author (law-maker) does not show that meaning can be determined by the reader (judge). shows in his article on Breedenkamp how the supposedly rigid rules of contract law.in a particular ideological way of thinking or in a particular set of legal doctrines. to show that their own thought was incoherent. the deconstructor looks for marginal counterprinciples that have an unacknowledged significance and which. this appropriation of the latter by the former. So the instability of meaning feeds into the ‘law is politics’ claim of CLS. to show that liberal thought was incoherent. if taken seriously. CLS tried to appropriate these techniques to ‘trash’. CLS tried to use deconstruction’s insights to show that the subject (e. for example. which are privileged over fuzzy values like fairness. So Unger. Deconstruction said that all texts undermine their own logic or structure and are contradictory. And Jaco. Balkin says however that this relationship between CLS and deconstruction. actually rely on or are indeed instances of those values. a judge) could manipulate the indeterminate texts to suit his ideological purposes. that these ideologies were politically constructed. it could be shaped by the powerful groups in society. Deconstruction emphasizes the instability of meaning. Jaco says this is an irresolvable problem for CLS. relatedly.g. they would embrace the fact that they are engaged in interminable 30 . CLS wanted to critique the liberal ideology which pervaded the law at the time. (d) Deconstruction and CLS As these examples show. or the ‘freedom’ inherent in contract law).e. the accepted categories of private law. CLS liked this because it wanted to show the ‘false necessity’ of dominant ideologies in law (for example. namely legal texts. where he considers the relationship between deconstruction and CLS. famously. tried to show that countervailing principles of fairness and good faith can just as easily be taken to provide the foundations for contract law as freedom of contract (although of course traditionally freedom of contract is regarded as the foundation). i. deconstructive techniques can be applied to a particular kind of text. But deconstruction could just as easily be applied to any alternative the Crits wanted to develop. So deconstruction does not actually support the claim that adjudication is political at all. 2. for three reasons: 1. CLS felt that because meaning was unstable (as just stated) it was also malleable. CLS liked this because it wanted to apply the same approach to legal texts to show that they were indeterminate and that accordingly adjudication must be political. 3. where a field of law is thought to be organised around a dominant principle. And this brings us to the most important section of Balkin. For example. Jaco says that the Crits would probably accept this point. Unger. show that particular legal doctrines are fundamentally incoherent. He gives three reasons why CLS was attracted to deconstruction: 1. is problematic. but that in fact they are far more permeable and malleable than ordinarily represented. 2. might displace the dominant principle. shows the indeterminacy of contract doctrine using insights from deconstruction.

which had of course for many years been appropriating deconstructive techniques and applying them to the law. He basically says that the Crits clearly had some constructive politico-moral project. his account of the ethical imperatives of deconstruction. for example. it doesn’t show that you can reinvent the structures of discourse at will. some desire to change society. At its heart the speech is a deconstruction of the title of the conference. deconstruction and CLS (25 marks). This is basically just Jaco’s note on the reading plus a few interjections he made in class. It was not difficult to see that deconstructive techniques could be used just as easily by the political right as by the political left. Balkin suggests that Derrida was moved to respond to deconstruction’s many critics. how feminist legal scholars found that deconstruction tended to destabilise not only patriarchy but also femininity and feminine identity. you end up undermining your own project. is Derrida’s response. justice and law. who argued that the purely negative methodology of deconstruction was nihilistic or at least incapable of providing any political or moral guidance. then.critique. Or just avoid that essay  31 . But this was not a step-by-step emancipatory program. Believe me. CLS wanted to say that if meaning is unstable then it can be deliberately changed. 4 Derrida. So deconstruction had come to law schools via CLS. Question on this section: ‘Discuss the relationship between structuralism. while saying that the politics of coming up with an alternative to liberal ideology is nevertheless valuable. If you try to do so. So he does clearly think that the tradition of which he is a part does have something positive to say. although that one relates to adjudication specifically. I tried. (This is similar to the first problem. ‘The Force of Law’18 (a) Introduction Derrida’s ‘Force of Law’ is the speech he delivered in 1989 at a famous colloquium at Cardozo Law School in New York entitled ‘Deconstruction and the possibility of justice’. These last two ideas point to the dangers of adopting a purely critical approach: you are left paralyzed and incapable of saying or doing anything constructive at all. The bottom line is we’re all going to have to memorise this shit and regurgitate it without really understanding it. above. Balkin goes on to say. 3. It was more subtle and long-term than that. and now also by Derrida literally coming to a law school to give a speech on deconstruction.’ So basically regurgitate everything here. a list of reforms needed to achieve justice.) So in a sense CLS was a bit naïve to think that by undermining existing ideologies they would be able to rebuild them as they saw fit. It is the speech in which he for the first time addressed the relationship between deconstruction and justice. ‘Deconstruction and the possibility of justice’. At one point Derrida reflects on CLS. But simply saying that legal concepts have multiple and unstable meanings does not show that legal and social structures can be easily manipulated and changed. This. The matter came to a head when it was revealed in 1987 that Derrida’s close friend and fellow deconstructionist Paul de Man had been a pro-Nazi journalist during World War II. I could not make this even vaguely intelligible. Soon after he makes the point explicitly: 18 A fucking disaster.

that is the moment of ethics or of taking responsibility on which deconstruction insists. reality is complicated. He is suspicious of giving such a meaning because he wants to look (typically) at its many meanings. In his speech he explains (in a rather roundabout way) what this ethical dimension is. it conjoins ‘deconstruction’ and ‘justice’. In other words. It is precisely this moment. For deconstruction. in which he sees a deconstructive force which dares to defy the standard taxonomy. clearly has an ethical dimension—and it always has. in politics) are those who wish to purify at all costs. Deconstruction. as you say in English. It is immediately apparent that Derrida is slightly irritated by the title of the conference because it is precisely the impossibility of justice that Derrida sees. taking the easy way out and representing reality simply (and thus simplistically) is unacceptable. Derrida is wary of giving a neat. word would have gotten around. In one of his other works. he had to give his speech in English. The address is a response and as such it marks or represents the assumption of responsibility and so constitutes an ethical act. We can see from the start of his speech how deconstruction works as a strategy: he looks not at the three eye-catching terms in the title but rather the little word ‘and’. not sufficiently concerned with the complexity of the phrase.*I+t only appears that deconstruction … hasn’t “addressed” … the problem of justice …. In a sense. Derrida considers the responses that different addressees will give when they are asked whether deconstruction makes justice possible. and in trying to simplify it we obscure it and suppress certain aspects of it. His whole text (as we will see) is really about addressing someone in a ‘language’ that is not yours. While taking a jab at the critics of deconstruction (while once again 32 . has done nothing but address it. ‘don’t belong in the same category’. Those who wish to simplify at all costs and who raise a hue and cry about obscurity because they do not recognize the unclarity of their good old Aufklarung [clarifications] are in my eyes dangerous dogmatists and tedious obscurantists. in which you decide to respect or address the other in his own ‘language’. Derrida reflects on this question because. he suggests.a question of law and justice The text is in a profound sense summarised in its first sentence: ‘This is an obligation: I must address myself to you in English’. If things were simple. it also keeps the terms apart. (b) The significance of the address . No less dangerous (for instance. rational definition of deconstruction. although he is French. He reads ‘and’ so as to expose both its meanings: On the one hand. Limited Inc. if only obliquely. but one should also never simplify or pretend to be sure of such simplicity where there is none. drawing attention to the fact that these are separate concepts whose relationship (if any) demands an explanation. This again shows how deconstruction situates itself as an attack on totalitarianism. But. he takes his having to address his audience in their language as an allegory for addressing and respecting otherness. one quite appropriate for what I take to be the spirit of the type of "enlightenment" granted our time. Derrida says the following: One shouldn't complicate things for the pleasure of complicating. So deconstruction. There you have one of my mottos. even if that was not obvious to its critics. for Derrida. unable to do so directly. while seeming not to “address” the problem of justice. which imposes simplistic understandings to the exclusion of competing ideas. Why would he be suspicious of looking at the term in a lucid way? Because it would be too adequate and lucid. terms which. too easy and questionable. on the other hand. although complicated language should not be used unnecessarily.

I must speak your language as an obligation. And so no matter how hard he tries and no matter how excellent his translator. Derrida regards speaking someone’s language as being an ethical moment of addressing the other. one must as an ethical imperative try to close the gap between self and other. More profoundly. But Derrida immediately sounds a warning: Even if he addresses his audience in English. by speaking in their language Derrida closes the gap between what he says and what his audience understands. His audience will more ‘justly appreciate’ what he says if it is in their language. you will see that the answer to the question whether deconstruction makes justice possible is both yes and no. So here we see the ethical imperative being made explicit: one must always. For Derrida. which 33 . 2. his speech ‘necessarily remains a translation. Derrida asks how we are to distinguish between the force of law (legitimate violence) and ‘the violence that one always deems unjust’? In other words. how can law. address oneself to the other in his own idiom. because of an absence of rules and definitive criteria’ to do so. This immediately situates deconstruction on the side of justice and ethical duty. to deny binary oppositions. giving his speech at a conference in New York. Derrida picks out three aspects or meanings: 1. The phrase ‘enforce the law’ draws attention to the force involved in all law: When one translates “to enforce the law” into French. a force that justifies itself or is justified in applying itself. But we must try! (c) Two untranslatable expressions Derrida later considers two phrases in the English language which he likes but which cannot be translated neatly into French: ‘enforce the law’ and ‘address the problem’. 3. by “appliquer la loi”. ‘Obligation’ immediately connotes a duty: this is not a trivial or arbitrary choice to address the other.relying on now yet another meaning of the word ‘suspicion’) who argue that deconstruction in itself does not permit any just action. Derrida is trying to set up a strategy to deny the easy answer. Derrida is gesturing at the ontological gap referred to by Rosenfeld in the introductory lecture. but an imperative imposed upon me by a ‘law’ of some kind. as a matter of justice (not only as a matter of one’s speech being justly appreciated). He does this still in the context of a reflection on the relationship between law and justice. he must speak English because of the banal fact that he needs to be understood by his audience. It would be comfortable to accept a yes/no answer. Derrida must speak English because it is more ‘just’ (here in an avowedly moral sense) to speak the language of one’s audience. Later. Derrida concludes already early on that it is impossible to ‘distinguish unequivocally between droit (law) and justice. Here you can already see that Derrida does not see the relationship between law and justice as a binary opposite in terms of which the one excludes the other. even if this justification may be judged from elsewhere to be unjust or unjustifiable. Returning now to the opening sentence (‘This is an obligation: I must address myself to you in English’). his speech was written in his native French and then translated by someone else. or what Arendt would say is the ‘radical difference’ of the human condition: we can never fully understand or experience the other. for example. So for Derrida force is inherent in law. literal allusion to the force that comes from within to remind us that law is always an authorized force. one loses this direct. but it is precisely such a ‘reassuring response’ which deconstruction sees as dangerous and which it refuses to accept. that is to say an always possible but always imperfect compromise between two idioms’.

The implication of this is that in the moment of the initiation of law. Derrida states that laws do not keep up their good standing because they are just but rather because they are laws: ‘Laws are not just as laws.necessarily uses force. be just. the position of the law can’t by definition rest on anything but themselves. in order to be. must refer to other signs and substances that differ from it. As regards justice.’ Derrida is trying to tell us that the establishment of authority is always in a way inexplicable. Authority is self-referential in this sense—it establishes itself— there is nothing prior to it that can ‘give’ authority its fact of authority. of course the originary violence is legal. in a sense. ‘legitimate power’ or ‘public force’). its force/violence is neither legal nor illegal. they are themselves a violence without ground. The word différance incorporates both the temporal (time-related) aspect of difference as well as its spatial (space-related) aspects. From the perspective of the new order. Several pages later. A sign or substance. and it was illegal from the perspective of the new regime. This force is not violent because it generates difference and plurality and this is for Derrida the force of Justice. Derrida teases out the implications of the above. One obeys them not because they are just but because they have authority. ‘differential force’ or simply différance. matters are otherwise. It is only because signs and substances never occupy the same time-space that they can differ from each other. Différance is Derrida’s word for the force that makes all difference possible. the foundation or ground. incomprehensible aspect. But in the interstitial moment of revolution it makes no sense to say whether it’s legal or illegal. Mubarrak’s regime in Egypt was legal from its own perspective. différance records the idea of delay or deferral. a question of force without force. If something has a ‘mystical’ dimension it is essentially its unexplained. Thus the origins of legitimacy are ‘mysterious’. Quoting Montaigne. while not yet legal (the new order is not yet established). and so on’. and that sign in turn depends for its meaning upon a difference with yet another sign. interpretable and transformable. This force that is responsible for difference is what Derrida calls différance. What follows is a reflection on Pascal and Montaigne which leads Derrida to describe originary violence as ‘the mystical foundation’ of the authority of laws. (Note the reversal from 34 . As Fagan puts it: ‘Each sign (word) depends for its meaning upon a difference with another sign in the system. This violence cannot itself be authorized by a prior legitimacy. when the new order justifies its own founding. They are neither legal nor illegal in their founding moment. destroys difference and plurality. A different way of putting it is to say that it is no longer illegal (the old order is under erasure). Which is not to say that they are in themselves unjust. Force as violence. He goes on to say that it is the deconstructible structure of law ‘that also insures the possibility of deconstruction’. the fact that both a sign and a substance differ from another sign or substance only because we can compare the two and note their difference. but rather the question of a non-violent force. because it is constructed. Originary violence acquires its legitimacy only after the fact. Authority establishes itself as a violence that is neither legal nor illegal in the moment of its inauguration. when we think of force/violence as being necessarily unjust? The focus moves to the German word Gewalt which means both illegitimate violence (what Derrida calls ‘violence’ or force as violence) and legitimate violence (what Derrida calls ‘force of law’. In terms of time. Derrida is troubled by the following problem: all foundation or founding of a legal order consists in perpetrating violence. there is an incurable circularity. Derrida calls this ‘the differential character of force’. Here it is not a question of force as violence. then. For example. But we cannot say from an abstract or decontextualized perspective that it was legal (or illegal): Since the origin of authority. in the sense of “illegal”. for his discourse. This is the ‘originary violence’ that establishes the law’s authority. then. He says that law is deconstructible. on the other hand.

Justice. that makes a deconstruction happen. argues Derrida. Justice is deconstructive. to say that deconstruction is justice is not a quiet equation. Deconstruction (Justice) always exposes the law to its other. It does not mean that deconstruction is just. It is essentially an attempt to open the status quo to more hospitality and transformation. In fact his point is precisely to use them in that way. deconstructing. Law—as construction. in politics. Derrida uses them but in an avowedly problematized way. 35 . sometimes. So. as text—is thus what makes deconstruction possible and. Why is justice undeconstructible? In order to understand this we must remember that Derrida describes Justice as ‘impossible’. (d) The three dimensions of the aporia of justice Derrida moves on to the expression ‘to address a problem’. in this way. as the absolute experience of ‘the impossible’. It is in the name of justice that we do what we do when we deconstruct. and so on. in social structures and so on and so forth. This means. I will call this justice. absolute hospitality. Why do we do it? What is our interest in deconstruction if not a respect for precisely what we call justice? That is why there are revolutions. Justice is that which deconstructs the law. Does the law contain some justice? It depends on a legal system’s context. justice is totally eclipsed in these systems. But. Deconstruction is justice. Derrida relies on false binaries like deconstructable/undeconstructable and possible/impossible. is the possibility of deconstruction.the conference title ‘Deconstruction and the Possibility of Justice’. But it is also. Another way of putting it is to say that deconstruction takes place in the name of Justice. deconstruction is the law’s conscience: deconstruction ‘reminds’ the law that there is always more justice to be done. then the law does contain justice. in ethics. Justice is undeconstructible because it can never be fully present: it is present only in so far as glimpses of it can be seen in the law. that is why we criticise and deconstruct the given systems of norms in legal systems. As an aside. to show that there is justice in the law and yet there isn’t. or that Justice is the force that moves deconstruction. in the end. In other words. law is deconstructed in the name of justice as non-violent. like any dream. This means that Justice in itself is never fully representable or presentable. it can never be realised: Justice is the experience of the impossible. in the same way as deconstruction is not deconstructible. or. In this way. law can never fully contain justice. We only see traces of Justice in law and. Justice is always what is radically absent. Where law approximates justice as absolute hospitality and non-violence. ‘non-violent’ and sometimes as ‘absolute hospitality’. As Derrida wrote elsewhere: [S]ince any drive to deconstruction must be inspired by something. if deconstruction is justice it is also law that makes impossible justice possible as law. absolute and impossible force without force (understood as violence). But Justice exceeds law.) Justice is not deconstructible. to that which it marginalises or excludes in order to be law (as text). he uses them without denying that they are false. How can he then say that we must deconstruct false binaries? Well. there is no Justice in the law. It represents the dream of complete openness to the other. such as is the case in totalitarian legal systems. that deconstruction takes place in the interval that separates undeconstructible justice (absence) from deconstructable law (presence). put differently. We can again see the ethics or politics of deconstruction. the undeconstructibility of justice that makes deconstruction possible.

By ‘calculation’ Derrida basically means the legal reasoning which the orthodoxy approves: interpreting and applying the legal materials. then it is a blind or mechanical—or. when time is up. a paradox or something that does not allow passage. for example. as if ultimately nothing previously existed of the law. the decision still needs to be made. be based on a general rule. a decision must. by a reinstituting act of interpretation. as Derrida says. Thus we need a leap of faith. since justice lies beyond the application of the law. And yet. in order to be just. To experience an aporia will thus amount to experiencing an impossibility. it must follow a law or a rule. As impossible. Of course we know that for Derrida such calculations will necessarily fail to achieve justice. An aporia is a non-road. all free decisions require this: decisions which do not require a leap of faith are simply ‘programmatic applications … of a calculable process’. Law is the first way of experiencing the impossibility of justice. a utopia. to traverse. each decision is different’. The law responds in a general fashion. 2. we must begin by a process of calculation. ‘unfree’—decision which necessarily fails to address itself properly to the unique context. But. then. But this is a stronger claim than simply observing (as even those in the modernist tradition would observe) that practical realities will never fully embody ideals like justice. whereas the law is calculable. if the decision is made simply because it conforms with a pre-existing rule. a heaven. All decisions require this. which fails to recognise that ‘each case is other. one must go through the experience of calculation with the incalculable. Otherwise it is arbitrary. This decision-making is of the order of calculation. To experience an aporia is paradoxical in itself: to experience means to find a passage. and in this Justice becomes impossible. while taking account of law and rules. at the same time. an ‘experience that we are not able to experience’. Derrida is saying something more: that it is almost logically or inherently contradictory to try and achieve justice through law: some aspects of Justice are always shut out by law. the decision of a judge. justice is not calculable. Law must omit and structure somehow. First aporia: epokhe and rule Here Derrida wants to draw our attention to the fact that only free decisions can be just. In other words. Yet there is no justice without this experience of the aporia. if the decision-maker 36 . Justice is exactly such an experience of the impossible. Derrida argues that to address the problem of deconstruction and the possibility of justice requires the experience of an aporia. whereas justice always responds to the singular situation. there is always a moment in every decision where it comes up against the undecidable. as if the judge himself invented the law in every case. In other words. confirm its value. The trouble is that the decision (in order to be free) cannot be arbitrary. ‘however impossible it may be’. of decision of which the justice or injustice is not insured by a rule. In order to experience justice. Yet in order to be free the decision must not simply follow the rule: To be just. Or rather. Derrida identifies three examples of aporias (or perhaps more accurately three forms of the same aporia) in the relationship between law and justice: 1. When the rules are used up. Justice is unachievable.In this context. Second aporia: the ghost of the undecidable Law requires decision-making and this decision-making always divides. and all the calculations are made. must not only follow a rule of law … but must also … approve it.

the incalculable and giving idea of justice is always very close to the bad. the first form of the aporia) is clear. to be just. ‘the worst’ refers to the Holocaust. lodged. Thus Derrida says that the temporal aspect of decisions is key: decisions. 37 . once made. more accurately. of not knowing that what I am about to do is the right thing. again. It is that which must not wait … *A+ just decision is always required immediately.is not forced to confront the undecidable then he must have blindly applied the rules. Totalitarianism is the destruction of politics. cannot calculate and therefore cannot present. All decisions must be made in the night of nonknowledge. [The decision] always represents a finite moment of urgency. And yet the fate of our existence is to structure and thus to exclude. Justice does have an avenir. at least as a ghost … in every decision’. even to the worst for it can always be reappropriated by the most perverse calculation … And so incalculable justice requires us to calculate. then should we forget about law? Derrida’s answer is ‘No’: That justice exceeds law and calculation. Justice … doesn’t wait. Derrida concludes the discussion by stating that Justice is ‘the experience of absolute alterity’ (otherness) and as such it is unpresentable (absent). because only a decision. must be made urgently or immediately. “right away”. because it destroys plurality. only ever just when it has passed through the ordeal of the undecidable. Here the close relationship with the first aporia (or. however. Third aporia: the urgency that obstructs the horizon of knowledge Deconstruction does not see Justice as a horizon that we could reach through progress or a period of waiting. the undecidable ‘remains caught. a ‘to come’. 3. Deconstruction insists that we never destroy plurality. A decision is. But it is precisely because of this incalculability that we must always say ‘perhaps’ for Justice. which was dominant at that time. He is trying to get rid of the rational calculability of law and economics. Its possibility lies precisely in this impossibility. The result is that we are forced to make decisions ‘in the night of nonknowledge’. In the European tradition. can be just. that the unpresentable exceeds the determinable cannot and should not serve as an alibi for staying out of juridico-political battles … Left to itself. But plurality is the human condition. (e) Conclusion So throughout the text Derrida is trying to get us to be alive to the impossibility of all (legal) decision-making. The undecidable is the moment of doubt. of indecision. the totalitarianisms and genocides. Derrida reminds us of the possibility that all these things to be done in the name of ‘justice’. We do not have the time to acquire all the available information and do infinite deliberations. But the undecidable is not itself just. It cannot furnish itself with infinite information and the unlimited knowledge of conditions [or] rules … that could justify it. The ‘perverse calculations’ are the worst of humanity. in the sense that it belongs to that part of the future of which we cannot have knowledge. If Justice is impossible. For Derrida all (free) decisions carry in them this ‘ghost of the undecidable’. Yet. They all represent moments of agony and undecidability. Justice delayed is justice denied. But there are of course other relevant totalitarianisms.

38 . Essay questions: 1. structured. So law is caught between the dream of Justice as absolute hospitality and law as finite.) Discuss Derrida’s meditation on the phrase ‘to enforce the law’. unjust. exclusive.This is what law does.) Explain Derrida’s reading of the aporetic relationship between law and justice. 2.

positivism is basically the manifestation of Enlightenment thinking in the particular context of legal philosophy. Jurisprudence. asking fundamentally the wrong questions. The Austrian government asked Klimt to do a painting representing Jurisprudence. And. like most of the writers we discuss in second semester. forcing the prisoners to turn their eyes to the sun. They wanted Klimt to do a painting which gave expression to this fact. Plato describes a group of men sitting forever in a cave. as a kind of summary of the work we are doing. This is explained in the van Marle extract which appears immediately afterwards in the reader. so he decided he would do a painting depicting how gross and evil traditional Jurisprudence really is. not in truth. van Marle interprets Klimt as showing us that this is impossible. He has no use for true philosophy … Chestov interprets the cave dweller as the jurist. but rather the imposition of an already revealed truth. true philosophy. The problem is not with their ability to see. facing away from the entrance towards the back wall. all that we will ever grasp is a shadow of what is really there. Van Marle says: What is important is that the prisoners in the cave can see perfectly well. but with the direction in which they are looking. The former is not engaged in the search for truth. Klimt was a pretentious prick who liked to think of himself as an über-radical maverick philosopher. Instead of looking at the eternal divine. on the other hand. the real Truth is always beyond our reach. correct approach to law. The latter. Deconstruction and CLS. and true philosophy. Klimt was basically trying to squeeze out a fat dump all over the Enlightenment veneration of rationality. As van Marle says. but you know what? Fuck rationality. The philosopher is interested in education. All they can do is see the shadows cast on the back wall of the cave by the people and objects walking past the entrance. of course. Positivism positions itself as optimal philosophy. Where positivism seeks (and considers itself largely to have achieved) an accurate theoretical account of the Truth about law. without hesitation. True philosophy is that of uncertainty. distinguished from the philosopher because of his unwillingness to turn his eyes toward the light. That basically summarises Jaco’s attitude to positivism: Positivism claims to be the rational. questioning. They can never see outside the cave and experience the real world directly. But. optimal philosophy. Optimal philosophy is a philosophy of certainty. The suggestion is that positivists are looking at fundamentally the wrong issues. is neither a science nor an already revealed or identifiable truth … Plato chooses. represented the glory of rational science. non-knowledge. an embodiment of real Truth. naively seeking comfort in the cave while representing itself as having access to the real Truth. position themselves as true philosophy. thought the government. situating themselves within this history of uncertainty and crisis. they are focused on the shadows and trivial objects of the cave. Van Marle continues. The superduper profound point of this allegory is that we never have unmediated access to the real Truth. As finite beings. the light of the sun. 39 . with reference to the analysis of the cave allegory by Leon Chestnov: Plato is in fact talking about two different philosophies: optimal philosophy. the painting ‘can be seen as anything but a celebration of rationality – rather it is a refusal to the claim to rationality’. She refers to Plato’s cave allegory. Her basic point is that positivism is really lame.POSITIVISM VERSUS POSTMODERNISM 1 Klimt and Van Marle We haven’t yet spoken about why Jaco chose to put that shitty fucking painting by Gustav Klimt on the front of the second semester reader.

In trying to explain why pleasure and pain matter. State-made law. Positivism associates itself broadly with scientific thinking and secularism. What the article tries to do first is look at Austin and Bentham and show that their attempts to formulate general. For example. the source of utility is ‘the unqualified beneficence of the creator who desires the “greatest happiness of all of his sentient creatures”’. asking the important. This of course relies fundamentally on power relations. In Bentham. Positivism rejects this attack. But the so-called secular. was conceived as a scientifically-measurable unit of value which relates to human experience (rather than divine will). Austin tries to justify why we should concern ourselves exclusively with utility. difficult questions and—unlike the positivists—never growing complacent in the false knowledge that they are right. But the problem is 19 As far as I can tell this critique is just Jaco’s opinion. positivism has proved remarkably resilient. ‘nature’ thus fulfils exactly the same role as the divine fulfils in Austin. The reading discusses positivism from a critical perspective. it is the source of positive law. and he relies on exactly what he was trying to avoid. In short. This is where the tension is: positivism insists that it is correct. It says accordingly that the only law that matters is that posited by humans. Austin’s view (as we know) was that legal subjects obey the sovereign through fear of sanction. importantly. secular theories of law failed: ultimately they all rely on divinity and ‘mytho-poetic themes’ (sic) and thus collapse back into exactly what they are trying to avoid. precisely because it has co-opted surreptitiously these mytho-poetic themes. ‘England’s Dreaming: The Spirits of Positivism’. positivists (what is meant by ‘the jurist’ in the above quotation) are stupid cunts who sit in their cave and think they have constructed a good theory of knowledge. secular science. The secular positivist project only goes so far. implying a relation of inferiority/superiority. Another critique19 is that power relations are central to positivist theories of law. the separation of the divine and the human. The utilitarian positivists insisted. Austin also tried to rely on sovereignty rather than God as the source of law: Austin ‘would like to demarcate sovereignty from any association with divinity’. he has to refer to ‘Nature’. But in doing so he relies on a prior foundation for which science cannot account. i. Thus utilitarianism presented itself as a rational. saying that if no-one has access to certain truth then the critical philosophers cannot know that positivism is wrong. that is. a chapter from Douzinas and Gearey’s Critical Jurisprudence. 40 . But his answer is that utility is the object of all of God’s laws and commandments.e. The authors claim that. that all law should maximise utility. there is a point at which it erupts and opens itself to its other. and yet they are left unexamined by those theories.advocating the interminable critique of attempts to construct a model of the Truth. It doesn’t come from the reading. Thus he ‘cannot articulate *his main principle of utility+ without returning to divinity’. Bentham had reduced utility to the ‘sovereign masters’ of pleasure and pain. Utility. whereas critical legal theorists are the true philosophers. everything is uncertain. positivist relation between the sovereign and the subjects takes exactly the same form as the relationship between God and his people: it is vertical. in particular. but critical philosophy says to positivism: You cannot know the truth. 2 Douzinas and Gearey We turn now to the second article in the reader.

on the other hand. Firstly. Secondly. You can limit power as much as possible. centering around power and the problematization thereof? (10 mark question) 3 Lenta In a journal article. He says that it is a transitional jurisprudence. Their pretence at neutrality in describing what the law is is exactly what is wrong with positivism. always tries to be questioning. That is a point affirmed at the end of the reading: the last section is titled ‘Hart of Darkness’. to show how evil Hartian positivism is. but which it fails to take seriously. Fundamentally. Question on this section: What is the relationship between CLS and legal positivism. They glibly construct a theory of law upon the foundation of these power relations. Foucault argued that power and knowledge are completely fused in the modern state: the people or groups with power determine what is taken as true knowledge in the society. it has nothing to say about addressing socioeconomic inequality and the other key issues which our contemporary law needs to face. for example using constitutionalism. a transition away from 41 . But the problem is that simply by saying what law is. Lenta’s article ‘Just Gaming?’ is a response to Davis. Dennis Davis said that postmodernism is not relevant to contemporary South African jurisprudence because it is just a lot of silly language games and shit. But it can be said to be transitional in three more particular senses. These are realities which optimal philosophy cannot rule out. it is post-colonial. a defence of postmodernism’s value in South African jurisprudence. but ultimately you can never exclude the possibility of ultimate power. a transition away from colonialism. Hart’s theory is really a theory that is distinctly English and steeped in the Imperial view of the native whose ‘habits’ are to be civilised through the imposition of rules. CLS stresses this point too. The classic liberal claim that an ‘is’ cannot imply an ‘ought’ is exactly the source of disagreement between Jaco and Fagan: Jaco says that by describing the law in a particular way. CLS says: The truth is not certain. consisting only of primary rules. commitment to the separation thesis). which the Empire must come and shape ‘through the civilising influence of the common law’ into a more sophisticated society with secondary rules too. a jurisprudence of movement. Basically. is obsessed with power relations and. the authors say that it amounts to nothing more than a justification for English imperialism. Thus. more particularly. But in first semester we had a very limited definition of positivism (basically. positivism is responsible for a host of evil normative claims. critical. It is almost as if positivism wants to put a positive spin on power. But positivism glosses over this fact. and Parliament can amend the provisions it doesn’t like. assuming away the problems which this creates. Lenta must first tell us what South African jurisprudence requires. For example. CLS. CLS. the President can suspend our Constitution in a state of emergency. on the other hand. positivists legitimate power. it is post-apartheid. This is because Hart represents the simple tribal polity of native people. and positivists ignore too easily the power behind the law.that positivists do not problematize these power relations and see how they are precisely what we need to be sceptical about. for the authors. What we’ve been saying now seems like a remarkable set of complaints to level at such a limited claim. It is particularly concerned to resist the culmination of power in totalitarianism. it must facilitate a transition from an unjust society to a more just one. the possibility of absolute power. apprehensive about power.

Jaco says that he cannot agree more: positivism is an irresponsible approach to law precisely because it doesn’t address the morality question. Cultural postmodernism can be distinguished from its ‘opposite’. which follows the era of modernity. In other words. Thirdly. On the contrary. however. The point is that you can be critical of the claims of the dominant ideologies without denying that absolute truth exists. Values are not relevant to law only where the law says that they are. it is argued. a transition away from modernity. a gross misreading. Postmodernism is in fact an outright rejection of positivism. Positivism tries to seal off the law from those values which lie outside it. One could. modernism. there are many different ‘postmodernisms’. In this way. that positivism never intended to separate law from morality and only ever insisted that law is not necessarily connected to morality. ‘How does Lenta think positivism fails to deal with morality?’ then give him this answer.apartheid. to multiple forms of knowledge. Postmodernism. with an avowedly value-laden Bill of Rights. positivism is not an obstacle to the progressive project favoured by adherents of postmodernism. But for those who want to challenge the dominant political theory. however. But Lenta is interested for present purposes in just two (as we stated above): cultural postmodernism and epistemological postmodernism. positivism can happily accommodate the inclusion of values in the law. positivism has no place. it doesn’t accept that morality must come through law from outside the law itself. for those who are excluded from the dominant theory and have been the victims of its exercises of power. where the law has chosen to internalise them. it is postmodern. As Cilliers writes: A complete relativist is in a way nothing but a disillusioned foundationalist. But that does not make it nihilist or crudely relativist. Thus in the era of postmodernity globalization has led to the so-called ‘marketplace of ideas’. That is. does not offer a blueprint for a better society. deny the existence of absolute points of reference. and a political climate in which there are genuine efforts to include morality into the law.20 Of course. moreover. one of postmodernism’s most fundamental commitments is to radical plurality. And. 42 . now that there is a contingent connection between law and morality. Certain apologists for positivism (Fagan and Cockrell) claim. He says that it is insufficient for law to incorporate incidentally whatever moral criteria may exist for identification of the law. says Lenta. It is postmodern in two ways: culturally (as part of a global transition to postmodernism) and epistemologically. What are the signs of the change? Lenta gives two: mass forms of communication and the commodification of ideas and symbolic forms. After all. postmodernism is simply the era of postmodernity. as postmodernism shows. Davis’s claim that postmodernism has no concern for socioeconomic inequality (and so on) and that it is therefore a haven for positivists is. Lenta concedes. But Lenta does not accept this response. The point is precisely to rely on values lying outside the law. positivism no longer represents any problem for those who want to take account of values in legal theory and practice. simply in temporal terms. Lenta then contrasts postmodernism with positivism. It is a marginal discourse which simply reveals the contradictions and illusions in the orthodox ideologies. where 20 Jaco said at this point that if he asks in the exam. justice requires in each case having recourse to values outside of the law: this is what gives justice its necessarily critical character. now that South Africa has a written constitution. without slipping into relativism.

But this is really besides the point. the export of Oriental culture (sushi and those fucking Chinese-symbol tattoos and shit). to which all history was supposedly directed. Fukuyama’s thesis is demonstrably false: we have simply moved to a new dialectical moment where ‘communist’ measures (like bailouts and massive fiscal stimulus) are introduced basically to save the ‘free market’ or liberal capitalism.culture is transmitted globally and a kind of global or mass culture is created. Michel Foucault. in its epistemological moment. Our Constitution has been venerated as ‘the last great modernist project’. So there is thorough uncertainty now about how these ideologies are developing and competing. how and when we can be said to know something. is the rejection of the epistemology of the Enlightenment. Lenta warns that although this can be empowering. Thus the postmodernists were suspicious of all ideologies. Many thinkers came to favour a more plural. relativistic approach to human reason and knowledge creation. they each explain history with one dominant idea. Hegel explains everything in terms of the self-actualization of the free society. a key thinker in the movement. On the other hand. it can also be a bad thing. So the dangers in the Enlightenment way of thinking came under attack. were thought to explain all of history. Liberal democracy had simply won. This reflects Francis Fukuyama’s famous thesis espoused in 1992 in The End of History and the Last Man in which Fukuyama claims that. for the Enlightenment thinkers. the cornerstone of a miraculous revolution through law and not violence. for it could lead to the domination or even destruction of local cultures (which is of course what we see with the pervasiveness of American culture). is what postmodernism is all about as a cultural phenomenon: the exportation of cultural forms so as to create a mass culture. Lenta says that liberal legalism is often seen as the culmination or end of politics under modernity. came to realise that the totalitarianisms of the 20th century had been justified by these simplistic Enlightenment theories. to any exclusive claim to reason. emancipated individual. with the then-recent collapse of communism. absolute justice. but he points out that it does not represent full. We all know examples of this: the dominant global position of American culture (McDonald’s and shit). on the one hand. Postmodernism. later developed a highly influential analysis in which he related power and knowledge. there was no available alternative and so we had reached in a sense ‘the end of history’. But at the end of World War II these systems of knowledge were doubted: the Frankfurt school. the Arab Spring represents a new insistence by the citizenry on liberal capitalism. Epistemology is the study of knowledge. JeanFrancois Lyotard expressed this as ‘incredulity to metanarratives’: the postmodernists were unwilling to pay credence to the simplistic narratives which. Lenta doesn’t criticise our Constitution or our negotiated transition. It is an improvement. Stalinism was rationalised as an attempt to realise Marx’s emancipatory vision. for example. Kant pins everything on the emergence over time of the rational. then. suggesting that perhaps Fukuyama was right: history is progressing inexorably towards universal liberal capitalism. This. Lenta then turns to Alan Hunt to describe with reference to the South African context the role of postmodernism. So the Enlightenment method fundamentally seeks to refer all analysis back to one single explanatory theme. showing how the two perpetuate one another. then. Marx explains everything in terms of the emancipation of the proletariat. In all the key Enlightenment writers we see a unitary explanation of history running through each of their work. Jaco says that. Nazism was rationalised as an attempt to achieve the selfactualisation of the supposedly racially superior German volk. 43 . in which there would be no further politicking over which form of society was the best. This was to become the defining characteristic of early postmodernism. liberal democracy had become the only plausible form of society. This was to intensify the postmodern scepticism of claims to absolute truth. What is relevant here is that Lenta uses Fukuyama’s ideas to understand South African law.

South Africa shows this very well: all citizens have rights bestowed on them by the most progressive constitution in the world. One of the ways we could revitalise our law is to use ubuntu to challenge and resist Western liberal legalism’s ideology of reason and autonomy. In short. Jaco says this is poes important but I’m not going to retype it all. Lenta discusses Jean-Francois Lyotard and in particular his concept of a différend. but then it deconstructs: the liberal tools reach their limit and we have to find other tools if we are to understand this politico-historical moment. but it is not the end of history. says Lenta. a black 44 . This is precisely the postmodern point. Liberal legalism. peaceful and innocent. So liberal legalism can explain South African jurisprudence up to a point. It can use rights discourse to justify the non-enforcement of rights for reasons of State.yes. economically and otherwise downtrodden) and reintroduce forms of knowledge (traditional African jurisprudence for example) marginalized or “damaged” through the epistemic violence of the colonizer’. could not account for the transformative project envisaged in our Constitution. This will ‘force a reconsideration and fracturing of current forms of legal knowledge and social identities authored and authorised by Western modernity’. He admits that postmodernism’s intellectual resources come from Europe and America. and yet poverty and inequality remain amongst the highest in the world. For example. Foucault shows that rights discourse is not a dream cure. We must ‘uncover hidden and naturalised modes of colonial cognition embedded in legal discourse’ and recover the suppressed forms of local knowledge and law. The fact that people have rights doesn’t liberate them. we must see it in the context of our history. Foucault goes still further: rights discourse can actually facilitate domination by the State. Lenta warns. we must understand postmodernism in the light of South Africa’s postcoloniality’. We see this in. postmodernism’s point is that you will never reach the end of history. the US war on terror. What does this entail? Lenta basically says that postmodernism must ‘contest the authority of colonialism’s systems of domination’. in a liberal system rights have no horizontal application.] Finally Lenta comes to the postcolonial aspect of our postmodern jurisprudence. This means that to apply it in the South African context we need to see that we come from a particular postcolonial context. *Read page 184 of Lenta. Of course. There are two more important points Lenta makes in his article. There is a huge disparity between having rights and achieving true emancipation. This is where there is a dispute but one party to the dispute doesn’t have the language to articulate his side. however. Jaco says that the Constitutional Court has indeed said many times that our Constitution is not a disembodied or decontextualized Constitution. starting at ‘Applying Hunt’s taxonomy…’. Postmodernism can be used to ‘recuperate agency for the subaltern (the racially. to make the dominant ideology uncomfortable. then. The first is to discuss Michel Foucault’s relevance to South African jurisprudence. Here. to show that justice is not captured by liberal legalism but is always still to come. with the State suspending fundamental rights for the sake of ‘national security’. For example. ‘In short. that we must not allow ubuntu to be taken to represent a romantic past in which Africa was homogeneous. and there are no socioeconomic rights. The point of postmodernism is precisely to push at the limits of liberal legalism to make them rupture. we see postmodernism in its typical role: trying to achieve emancipation but exposing the limits and contradictions of any emancipatory project. the ideologies which it brought here. which claim to be universal and reasonable but which were complicit in imperial expansion and colonial rule. Finally. for example.

45 . took as given the apartheid laws and thus there was no scope to attack them. the site of dispute resolution. That is why Mandela’s speeches from the dock. The courts. in which he forsook all claims to legal protection and ‘put apartheid on trial’ were so inspiring. they allowed for the articulation of what had previously been impossible to articulate.person under apartheid had no way to articulate the fact that apartheid was a moral crime.

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