by Matthew McManus
Legal
theoretical approaches oriented around discerning a constitutive difference
between law and morality are misguided in that they misrepresent
epistemological claims for ontological certainty. While some, such as Kelsen,
have been admirably straightforward about this, other legal scholars have
attempted to hide this unfortunate reality beneath layers of conflation and
qualifications.1
Hart’s
work is the most prominent and indicatory example; one more brief look at his
work will provide a useful segue into the more critical discussion. Hart argues
that the transition from rules to law is primarily driven by the desire of
hegemonic groups who feel obligated by the dictates of particular moral systems
to oblige others to adhere to them as well.2
The
motivation behind this is to increase the domain of authority and establish a
clear and mechanically functioning order. This, Hart claims, is an entirely
amoral process. He never acknowledges, and this is something Fuller rightly
reprimands him for, that the orientation towards valorizing order itself flows
from a very particular tradition; what I would characterize as the technical
mindset at the centre of Western thought.3
It
is no surprise that the positivistic approach pioneered and systematized by
Kelsen and Hart is one that emphasizes the distinction between discrete
segments of the population and feels compelled to assimilate these distinctions
within one descriptive system the accounts for how these differences are
controlled and managed.
In tailoring such an approach, Hart reveals something
key about the legal system that he is unwilling to acknowledge. This is that
law does not have the function of managing difference. It produces difference
through the very processes that are designed and implemented to manage it
through the legal system. In so doing, the application of a pseudo-positivistic
legal system to society can contribute to the same tensions it is designed to
ease.
Theories centered on revealing that there is a constitutive point where
morality and politics transition into law conceal this process through an ever
more sophisticated and gigantic edifice that transforms an empirical subject
matter into a transcendental one. In this way, much as with Kant, even
descriptive accounts of law that eschew moral judgements serve to legitimate
the status quo by fastidiously maintaining that something called law exists and
is applied in a particular way. It is this process that I shall now explore in
some detail though the remainder of this section.
Asking “what is the law” only makes sense by
abstracting the subject matter away from the highly complex and layered social
and material contexts which produce legal systems in the first place. Law may
be or become a “science” as its acolytes wish, but they forget that the key
feature of technical activity is the establishment of ever growing object
domains premised on a metaphysical supposition about the ontological reality of
“things.”
Since “things” are assumed and not given empirically, the recourse to
transcendental languages of conceptualizing on the part of both legal theorists
and practitioners is unsurprising. There is a compulsive need for the strict
application of categorical distinctions that none the less tend to break down
in practice; thus resulting in the endless retellings of Jerome Frank’s “basic
myth” about the objectivity of the law.4
Indeed,
no legal generation is without its mythmakers, given to all the bad habits of
mysticism and ostentation. The most prominent modern example in the American
context is undoubtedly Justice Scalia, whose snide and specious judgements on
constitutional questions have burdened American jurisprudence for almost 30
years now.
One of laws’ most notable functions is to promote
homogeneity across the population. In this respect Hart was entirely right. But
as the series of object domains established and in part validated through the
practice of law grows, so too must the measures of control. It is no surprise
that in an era where legislators speak tirelessly of increasing freedom through
law that there are more highly specified restrictions on human life than ever
before.
But more than that, in the process of creating such restrictions and
legal categories it encourages subjects to identify with these legal labels and
appropriate them as part of their identity. The thief, the drug user, and the
illegal immigrant are all seen as deviations from the norms law is designed to
uphold. But this gets the chicken and the egg scenario wrong since these
persons are directly the products of the law. As with the functioning of the
capitalist system generally, the effect of homogenizing practices oriented by
the technical mindset is instead to produce false differentiation. Law is
involved in a losing battle with itself through the production of difference.
To get around this, we require an account of the
state. Following Badiou, I employ the term state here not referring to a
positive object in the world.5It
is rather the name of this fluctuating collection of controls directed at and
controlling differentiated object domains. It is oriented ideologically and
directed materially by power.6
Through
the logic of difference, these domains have become increasingly disparate,
especially as technology increases the ways in which interests are expressed.
It is the challenge of the state that these tensions must be fused and
assimilated into a singular authority legitimated through a monopoly on
coercive force. While the social hierarchy may be increasingly fluid in some
respects, what remains unchanging is this orientation towards establishing order.
This order reflects the prevailing ideology; a relatively fluid collection of
framing norms.
In exceptional instances where these are challenged,
naked force still exposes itself as the foundation for this authority. The
imposition of legal sanctions on deviants is meant to re-establish the
integrity of the law over its various object domains. But this integrity will
always be challenged because human beings exist historically. What makes the
state unique is its uncomfortable relationship to history.
Conceived and
implemented by unconscious actors, law is charged with making the world of
becoming into a world of beings. Law and the state it represents are designated
precisely to deny real history. In this sense, Fukuyama was entirely right to
say that liberal-democratic hegemony would mean the end of the historical. The
state cannot deny time, since it manages the practical interactions between
real subjects.
But it must deny subjects the infinite capacity for context
transcendence by subjecting them to material limitations justified, in the
modern context, as necessary for the protection of freedom. Freedom becomes
obedience to laws one did not give to oneself at either the individual or
collective level.
In trying to deny the context-transcending powers of individuals
through the production of limiting distinctions, law takes on the form of a
transient eternal medium. It is the so called Mortal God. The structuring
hierarchy necessitates the logic of law evolve while the principles, or to use
Jeremy Waldron’s term, hermeneutic archetypes, underlying it remain the same.7
Legal realists saw decisions as entirely spurious and
determined by arbitrary and subjective moral reasoning on the part of judges.
What the positivists understood was that law, as a medium, imposes its own
restraints that go beyond mere hermeneutic questions about how to understand
the First Amendment. The state names a fluctuating body of controls, but what
is permanent is the existence of such controls. The content of law may be what
it is, but there will be law.
There is nothing inherently wrong with this. But when
combined with a logic of differentiation, law has the effect of imposing
constraints through which the context transcending powers of human interest
become channelled and alienated. This tendency becomes ever more problematic in
a globalizing, technologically driven society in which persons are exposed to
ever more varied mediums that might inspire the imagination and imply that
governing ideologies and the existence of the state is a false necessity.
The
key to the state’s power lies in its production of differences in no small part
through the law. It can do so to the immediate detriment of some, in the case
of those criminalized, or to the benefit of others, as in the case of refugees.
But in each instance one comes before the law to be named.
Consciousness becomes attached to legally defined
categories that apparently solidify identity. But these legal categories can
never be assimilated so that one could redefine them in such a way that one
might broach from official expectations. The context transcending capacity of
consciousness is constrained. The subject might feel their individuality is
validated by finding expression though the legal medium, especially if it is to
their short term advantage.
And indeed, interests are rewarded as long as they
are expressed in line with the inner laws of the legal medium. But, and this is
the key, because they are recognized by the law, these interest can no longer
be questioned, overcome, or made authentic except through appeal to other legal
categories.
But what of instances where this breaks down? Where
the choice of what person I shall be does becomes a social issue and there is a
demand for real history. In such instances, the state ceases to be a name for
maintaining a benign and democratic social order and overtly appears as a set
of institutions which determines the structure of the social hierarchy in a
manner conducive to maintaining the status quo.
The apparently “realistic”
liberal-democratic belief that policies of toleration and multiculturalism can
supplant the enactment of sovereignty is unmasked as utopian. In these
instances the reality of sovereign authority, which often fades into the
background during periods of social stability, asserts itself by clarifying how
processes of social differentiation will take place by establishing the
political and legal parameters through which it can be permissibly expressed.
In this way the legal system both breaks down the
population into differentiated groups and must always prevent this from having
a historical impact by ensuring the continuity of the social hierarchy protected
by sovereign power. Law is always in tension with itself, going back and forth
between patronizing by breaking down and disciplining by imposing force. Who
gets to decide this, however, is not a legal question. It is ultimately
political, backed up by dominant ideologies. It is to this issue that we must
then turn.
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