LAW AND SOCIAL THEORY 2005 2006 LLM

Professor Alan Norrie Prof. Sionaidh Douglas-Scott Dr. Vanessa Munro Dr. Mary Vogel

GENERAL INFORMATION

This course examines law from the point of view of social theory. It looks at general themes concerning law and community, class and capitalism. It considers the role of law in a liberal society when faced with questions of power, empire, totalitarianism and legitimation crisis. It also pursues case studies on the role of law: in postnational contexts (e.g. Europe), in relation to issues of democracy, diversity, responsibility, and globalisation.

The course will be taught by seminar. There will be a strong emphasis throughout on student-led learning. As a result, it is imperative that you attend seminars fully prepared, having read carefully and considered the materials cited below. Assessment will be by one essay (up to 4,000 words, 40% of final mark) and one exam (3 questions in 3 hours, 60% of the final mark). In addition, you will be required to submit one class essay in the first semester.

LIST OF SEMINAR TOPICS

Week 1

Introduction & Kant: What is Enlightenment? (AN)

Classical Social Theory Week 2 Marx: Law, Legal Form, Modes of Production (AN) Week 3 Durkheim: Law, Moral Solidarity and Individualism AN) Week 4 Weber: Legal Rationality, Subjectivity and Capitalism (AN) Liberal Law: The Changing Context

Week 5 Schmitt: The Challenge to Liberal Law (SDS) Week 7 Habermas: Law and Ethics, The Relational Affirmed (SDS) Week 8 Europe in Sociolegal Theory (SDS) Week 9 Globalisation and the Role of Law (SDS) Law, Ethics and History Week 10 Hegel: Law as a Place for Ethics (AN) Week 11 Arendt: Law and the Erosion of Modern Ethics (AN) Week 12 Derrida: Liberal Law and the Deferral of Ethics (AN) Law and Identity Politics Week 13 Feminist Legal Theory (VM) Week 14 Foucault: Power and Identity (VM) Week 15 Subversive Identity: Postmodern Feminism & Queer Theory (VM) Democracy & Diversity Week 16 Gramsci: Politics, Social Movements & the Hegemonic Role of Law (MV) Week 17 Frankfurt School: Tolerance, Dissent and Changing Function of Law (MV) Week 19 Bourdieu: Habitus, Social Capital and Legal Culture (MV) Week 20 Democracy, Its Dilemmas and the Role of Law (MV)

MODERN LAW AND SOCIAL THEORY

There are various ways in which different kinds of theories seek to illuminate the nature and working of law. Natural law theory, for example, seeks to relate legal forms, premises and principles to underlying moral principles which may or may not be present in given laws. Positivist legal theory seeks to identify generalisable features of all legal experience. Social theory of law in a way seeks to do both these things, but insists, against natural law and legal positivism, that you cannot understand either the moral or legal quality of what we call law without relating these to the nature of law as a social and historical phenomenon. The way law operates and the moral experience it reflects depends on the kind of society in which it is produced. In this section, we will be considering three main questions: (1) What are the salient features of modern western societies in terms of the shaping of the character and forms of modern law? (2) What does it mean to say we live in a liberal society, and how does this claim reflect the nature of law and our understanding of it? (3) If liberal law has moral value attached to it, for example in ideas of freedom and equality, how can the tradition of social theory illuminate such claims? The classes in this section are on the classical social theorists who contributed to our understanding of law, Marx, Weber and Durkheim. These theorists set the scene for much that is to follow in terms of thinking about the nature of modern society, its economic, political and legal forms, and its moral character. While very different theorists, who would have disagreed radically with each other, what they have in common provides a strong basis for establishing a social theory of law. We will however begin in a slightly different place. In much of the course, we will be referring to the legacy of the Enlightenment in modern thinking, and certainly the

tradition of social theory was founded in relation to this legacy. To consider what this legacy was, we will start the course with two brief essays written by Immanuel Kant in 1784 which indicate something of what the Enlightenment meant at the time and still does today. We will also return to these issues later in the course, when we consider three further philosophers, Hegel, Arendt and Derrida.

INTRODUCTORY CLASS: WHAT IS (WAS?) ENLIGHTENMENT

Prescribed Readings I.Kant, Idea for a Universal History with a Cosmopolitan Purpose in Kant, Political Writings ed H.S.Reiss (Cambridge University Press) I.Kant, An Answer to the Question: What is Enlightenment?, in Kant, Political Writings ed H.S.Reiss (Cambridge University Press)

A. CLASSICAL SOCIO-LEGAL THEORY

A specifically sociological perspective on law first emerged in the second half of the nineteenth century and at the beginning of the twentieth, when its three classical proponents, Marx, Durkheim and Weber all began to reflect upon the distinctiveness of western, European, liberal societies and on the reasons why they had taken the form they had. They were all struck by the fact that something new had emerged that was extremely different from what had gone before, that was dynamic, and that was beset by problems. All three in their different ways reflected seriously on the nature and role of law in holding such societies together, on the specific forms it assumed, and on what it could and could not do. Marx was not an academic, unlike both Durkheim (a French sociologist) and Weber (a German lawyer and sociologist). However, his writings were extremely influential and often operated as a foil for academic social theorists. Together, these writers represent the founding fathers of a social-theoretical perspective on law, and their work raises different, conflicting, but also complementary views on the nature of modern law.

MARX: LAW, LEGAL FORM, MODE OF PRODUCTION

Marx never produced a theory of law, but his work has been significant in terms of his understanding of the relationship between economic processes and institutional forms such as law. In his early writings, he was influenced by the radical side of the philosophy of the Enlightenment, and the idea that people under modern political and

legal conditions are alienated from their true nature. In his mature work, he was more interested in economic analysis, and the relation between economic, political, ideological, and legal relations. This is sometimes expressed in terms of the relationship between an economic base and various superstructures such as the law. There are many conflicting interpretations of Marxs work - of the basesuperstructure metaphor, how it should be interpreted, how important it is to Marx of the relationship between the early and the mature work, whether they should be regarded as one view, or whether there was a break in Marxs thought of the role of dialectical theory in his work so there is no correct view of what Marx thought. He himself once claimed, in the light of one interpretation of his work, that he was not a Marxist! One way of linking the early and the mature work is found in his belief that the causes of modern alienation were ultimately economically based. An important feature of Marxs analysis of law is that it is class based in the interests it reflects, but this may not be the most significant thing he had to say about law. He also recognised the importance of legal form as universalistic and as apparently transcending narrower social interests. Holding these two ideas together presents a challenge.

Prescribed Readings: (i) Karl MARX, On the Jewish Question in Early Writings (London: Penguin) (ii) Robert FINE, Political Investigations, pp.85-93, and Marxism and the Social Theory of Law in R.Banakar and M.Travers, An Introduction to Law and Social Theory (Oxford: Hart)

For Further Reference: K.Marx, Grundrisse (London: Penguin, 1973), pp.239-50; K.Marx, Capital vol 1, 88-9, 172, 547 H. Collins, Marxism and Law (Oxford: Oxford University Press, 1982) M. Cain and A. Hunt eds, Marx and Engels on Law (London: Academic Press, 1979) E. B. Pashukanis, Law and Marxism: A General Theory (London: Ink Links, 1978) ch.4 P. Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980) R. Cotterrell, The Politics of Jurisprudence, 2nd edn (London: LexisNexis Butterworths, 2003) ch 8. A. Hunt, Marxism, Law, Legal Theory and Jurisprudence in P. Fitzpatrick ed, Dangerous Supplements: resistance and Renewal in Jurisprudence (London: Pluto, 1991) pp. 102-32, or A.Hunt, Explorations in Law and Society (New York: Routledge)

Questions for Tutorial: 1. Why was the emancipation of the jews a problem for Marx under modern conditions? Was he entirely opposed to modern ideas of citizenship? 2. What was the relationship between the commodity form and the legal form in a liberal society? 3. What was the relationship between law and class power in Marxs writings?

4. Can one develop a full theory of modern law and the way it has been experienced in liberal societies from Marxs writings?

DURKHEIM: LAW, MORAL SOLIDARITY AND INDIVIDUALISM Writing at the turn of the 19th century, Durkheim was concerned with the question of how modern society could sustain a sense of moral order and community under pressures that seemed to make this far more difficult than in past societies. Modern society seemed to be eroding collective moral sentiment in favour of a fragmenting individualism in which each person looked out for him or herself. The pathology of this condition Durkheim termed anomie, a condition of moral or normative drift which has some parallel with Marxs notion of alienation. His question was how a collective conscience could be sustained under modern conditions of an expanded economic division of labour and a resulting move to what he called organic conditions of solidarity. In this shift, the changing nature of law in modern societies reflected the broader changes that were taking place, and modern law was an important means of recreating moral order or solidarity.

Prescribed Readings: (i) David GARLAND, Punishment and Modern Society: The Work of Emile Durkheim in D. Garland, Punishment and Modern Society (Oxford: Clarendon Press, 1990) pp. 23-46. (ii) Roger COTTERRELL, Moral Foundations of Modern Law in R. Cotterrell, Emile Durkheim: Law in a Moral Domain (Stanford: Stanford University Press/ Edinburgh: Edinburgh Unversity Press, 1999) pp. 103-118.

For Further Reference: R. Cotterrell, Emile Durkheim: Law in a Moral Domain, above, see generally E. Durkheim, Two Laws of Penal Evolution in M. Gane ed, The Radical Sociology of Durkheim and Mauss (London: Routledge, 1992) pp. 21-49

S. Lukes and A. Scull eds, Durkheim and the Law (Oxford: Martin Robertson, 1983) A. Hunt, The Sociological Movement in Law (London: Macmillan, 1978) ch 4.

Questions for Tutorial: 1. How did Durkheim characterise the changes in modern society as it had evolved? How did changes in the penal law in particular reflect these changes? 2. Alan Hunt has written that for Durkheim, Law is the vehicle though which modern society worships itself (Banakar and Travers, p.24). What does he mean, and what has his statement to do with the idea that modern society is individualistic? 3. Is it possible to see law as reflecting a sense of moral solidarity in modern society? Would Marxs account of such solidarity as being ideological be more appropriate?

WEBER: LEGAL RATIONALITY, SUBJECTIVITY AND CAPITALISM

Max Weber has sometimes been characterised as the bourgeois Marx meaning that his sociology of law is designed to address the same issues as Marx, while arriving at less radical conclusions. Weber wrote extensively on law and its role in the development of European capitalism. He argued that what allowed capitalism to succeed there was a peculiar combination of entrepreneurial activity and a specific kind of rationality, which he associated with western law. Such law represented a specific form of domination, which he called formal rationalism, which contrasted with the traditional authority of previous kinds of society or alternative charismatic forms. Formal rational legality permitted the calculation required for entrepreneurial activity at the core of capitalism and gave rise to a form of legitimacy that was central to western societies. Weber was a supporter of such law, but he also reflected on what he regarded as its limits. In particular, formal rationality could become an iron cage for modern human beings in which their need for enchantment would be lost. He predicted the possibility that the greyness of modern life might provoke a return to charismatic forms of leadership, eerily anticipating what was to happen in his own country.

Prescribed Readings: (i) Sally EWING, Formal Justice and the Spirit of Capitalism: Max Webers Sociology of Law (1987) 21 Law and Society Review 487-512 (ii) Roger COTTERRELL, Legality and Legitimacy: The Sociology of Max Weber in R. Cotterrell, Laws Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) pp. 134-159.

For Further Reference: A. T. Kronman, Max Weber (London: Edward Arnold, 1983) see generally A. Hunt, Sociological Movement in Law, above, ch 5 M. Albrow, Legal Positivism and Bourgeois Materialism (1976) 2 British Journal of Law and Society 14-31 D. Trubek, Max Weber on Law and the Rise of Capitalism [1972] Wisconsin Law Review 720-753. W.Schluchter, The Rise of Western Rationalism (Berkeley: U Cal P) chs 2 and 4 D.Sayer, Capitalism and Modernity (London: Routledge), ch.3

Questions for Tutorial: 1. What role did modern law play in the development of capitalism in western society? How does the example of Englands development as the first capitalist country with its common law background reflect on Webers thesis? 2. To what extent can one observe legitimation through formal rational law in modern society? What role have charismatic or traditional authority played, or substantive forms of reasoning, in its development? 3. Does formal rational legitimacy suggest a legitimation gap in modern western societies?

B: LIBERAL LAW: THE CHANGING CONTEXT

The 20th century presented many challenges to modern liberal models of law and the state. These liberal theories of law can be found in Webers formal rational model of law, or the positivism of HLA Hart and Kelsen, which tied law to the sovereign state, through formal recognised procedures and rules which would culminate in a clear Grundnorm or rule of recognition. These liberal theories also stressed laws formal qualities, excluding morality as one of its necessary features - laws legitimacy was rather perceived to lie in rational, open rules, to be applied to everyone - such was the essence of the Rule of Law. However, such theories suffer major defects. They have difficulty in explaining where laws legitimacy lies, if not in some moral attachment to law. Weber thought that, in the disenchanted world of modernity, the formal rational qualities of law would replace religion or magic as a ground for its validity and legitimacy. It is difficult to see how this can be the case. Why is law legitimate just because it is formally rational or systematic? Both Schmitt and Habermas grapple with the problem of what makes

law valid and what guarantees democracy, and they come to very different conclusions. Neither, however, adheres to the positivistic theories which have proved so attractive to modern liberals. The works of both Schmitt and Habermas are also relevant to the other key issue that our recent history has raised for law. What is the role of law beyond the sovereign state? The ever increasing importance of the European Union, and other such supranational organisations, as well as the growth in globalisation, make it vital to produce an account of law which can work in the context of supranational or global developments. But the theories of modernity do not seem to be able to do the job, too focussed as they are on single legal systems, rather than on the many overlapping, plural or multi-dimensional types of law which exist in the world today. It is crucial to find ways of talking about law that can handle these developments.

SCHMITT: THE CHALLENGE TO LIBERAL LAW AND THE CONCEPT OF THE POLITICAL

Carl Schmitt was a German jurist and legal theorist. Although he lived through much of the 20th century and continued working into old age, it is for his writings during Weimar and Nazi Germany that he is most remembered. Schmitt was discredited after the war for the support that he was seen to have given the Nazis. Despite being a ferocious critic of liberalism, he is now widely read again. This recent awareness of his work derives from first, the resurgence of interest in state theory and states of exception, and second, the value liberal scholars find in working through his critique of liberal theory. Schmitts most famous work was The Concept of the Political but he also wrote extensively about public law (Staatslehre and Verfassungslehre) and about the problems of post WW1 German Weimar Constitution. Prescribed Readings: (i) Carl SCHMITT, The Concept of the Political (Chicago: University of Chicago Press, 1996) pp. 19-45. (sections 1 to 4). (ii) Ernst-Wolfgang BOCKENFORDE, The Concept of the Political: A Key to Understanding Carl Schmitts Constitutional Theory in D. Dyzenhaus ed, Law and Politics: Carl Schmitts Critique of Liberalism (Duke University Press, 1998) pp. 3755. (iii) Jan Werner MUELLER, A Dangerous Mind: Carl Schmitt in post-war European thought (Yale University Press, 2003) chapters 1 and 2.

For Further Reference: D. Dyzenhaus ed, Law and Politics, above

W. E. Scheuerman, Carl Schmitt: The End of Law (Lanham MD: Rowman and Littlefield, 1999) D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997) J. W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press, 1983).

Questions for Tutorial: 1. On what, for Schmitt, does the concept of the political depend? Do you agree with him? If not, why not? 2. 3. What were Schmitts views on liberalism? What were his views on pluralism? Do you see a value in reading Schmitt today?

HABERMAS: LAW AND ETHICS, THE RELATION REAFFIRMED

Jurgen Habermas is another (still living) German theorist but of a less radical nature than Schmitt. Habermas started his career among the critical theorists of the Frankfurt school, writing in a leftist Marxist-influenced manner about politics and society. One of Habermas earlier achievements was to produce a study of communicative rationality, in which he claimed to be continuing the work of enlightenment thinkers, stressing the importance of rational communication (contrary to some postmodern writers, who were critical of the achievements and possibilities of so-called reason). Since his early days, Habermas has become somewhat less radical but has branched out, writing about all matters of contemporary interest, including globalisation and the European Union. This week we shall study his writing on law, most particularly elements of his large work, Between Facts and Norms. This huge work asks the question How is valid law possible?, given the tension between laws need to be effective and efficient (which relies on coercion) and its claim to be valid or legitimate, which is often perceived to have some sort of moral basis (denied by positivists). We shall examine Habermas solution and see if he has provided a satisfactory answer.

Prescribed Readings: (i) Jurgen HABERMAS, Between facts and norms in J. Habermas, The Berlin republic (ii) Jurgen HABERMAS, Between Facts and Norms, Postscript (Polity 1996)

(iii) C. RAMUSSEN, How is valid law possible? (review of Between Facts and Norms in M.Deflem, Habermas, Modernity and Law (London. SAGE. 1996)

For Further Reference: J. Habermas Introduction (12 Ratio Juris 1999) 329-325 A. Giddens, Habermas (from The Return of Grand Theory ed Skinner (Cambridge University Press 1985) J. Habermas Modernity: An Unfinished Project from Habermas and the Unfinished Project of Modernity ed DEntreves and Benhabib (Cambridge. Polity. 1996) J. Habermas Paradigms of law in Rosenfeld and Arato ed Habermas on Law and Democracy: Critical Exchanges (California University Press 1996) Introduction in Habermas The Inclusion of the Other ed Cronin & de Greiff (MIT, 1996) W. Outhwaite, Habermas: a Critical Introduction, ch.9 Baynes, Democracy and the Rechtsstaat Honneth, The Other of Justice: Habermas and the ethical challenge of postmodernism both in White, The Cambridge Companion to Habermas Scheuermann, Between Radicalism and Resignation: Democratic Theory in Habermass Between Facts and Norms Honneth, The Social Dynamics of Disrespect: Situating Critical Theory Today both in P.Dews, Habermas: a Critical Reader.

Questions for Tutorial: 1. Why does Habermas assert that there is a tension between the facticity and the validity of law? What does he mean by this statement? 2. 3. 4. What role do rights play in Habermas theory? What is Habermas deliberative paradigm? Do you find it workable? Has Habermas provided a satisfactory grounding for the legitimacy of law?

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EUROPE IN SOCIOLEGAL THEORY I: THE NATIONAL MODEL

At one stage, the European Union was of little interest to philosophers or political and legal theorists. Now, it seems, they cannot stop writing about it. The expansion of the EU to include many former communist block countries, as well as the emerging concept of a European Constitution, have been fertile ground for theoretical discussion and debate. Running through all the debates and the readings we shall pursue, are issues of sovereignty and statehood, democracy, citizenship, belonging and outsiderhood. The main issue, around which they all hinge, is that of the nature of the EU itself - is it something like a state, or something beyond that - some sort of international or postnational entity, or, in a postmodern world, perhaps it is best seen as a postmodern entity - whatever that may mean! In studying the EU, we shall be looking at writings, some by theorists we study elsewhere in this course, and some by theorists who are well known for their writings in areas other than the EU. We start by considering the national model as a basis for theorising about the EU. Many writers believe that the nation state is the only possible model for a polity, and that being so, the EU must either adopt itself to statehood as a model, or acknowledge that it may never itself become a state, and seek to be far less ambitious as a result. Many theorists use Schmitt, whom we encountered a couple of weeks ago, as a basis for their views.

Prescribed Readings: (i) Jan MLLER Carl Schmitt and the Constitution http://www.cardozo.yu.edu/cardlrev/v21n5-6/muller.pdf. of Europe

(ii) Dieter GRIMM, Does Europe Need a Constitution? in Gowan &Anderson (eds), The Question of Europe pp. 282-302 or in European Law Journal, Vol. 1 (3) Nov. 1995 (iii) Neil MACCORMICK, On Sovereignty and post Sovereignty pp 123-131 in Questioning Sovereignty (Oxford 1999) (iv) Sionaidh DOUGLAS-SCOTT, Constitutional Law of the European Union (Longmans 2002) pp 277-281

For Further Reference: G. Agamben, Homo Sacer: Sovereign Power and Bare Life, pp.15-29 and 50-67, (Stanford University Press: Stanford 1998) P. Eleftheriadis Aspects of European Constitutionalism (1996) 21 ELRev 37 N. MacCormick The State and the law in Questioning Sovereignty (Oxford 1999)

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EUROPE IN SOCIO-LEGAL THEORY II: POSTNATIONAL AND POSTMODERN MODELS

(A) Postnational Models Not everyone shares the view that the only basis for a workable polity lies with the sovereign state. Many feel that the nation state has had its day and that we need to look beyond it to some sort of postnational, or at least international model for the EU. Indeed, we can go back 200 years in time to find a version of cosmopolitan internationalism in the writings of Kant. Kants essay Towards Perpetual Peace is a good starting point for a discussion of post-national Europe. Although it was written 200 years ago, at a time when the modern doctrine of the nation state was gaining in effect, Kants suggestion for a federation of states based on principles that impose limits to sovereignty has been very influential. Kant suggested that it would require a new type of law which was neither national nor international but which he called cosmopolitan law. Habermas provides a 21st century version of this cosmopolitanism, as well as a strong counter to those like Grimm, who would maintain some version of the no-demos thesis. Habermas concern is especially that of how we can find in the EU someone sort of public sphere necessary for a thriving democracy.

Prescribed Readings: (i) Immanuel KANT, 'Toward Perpetual Peace' pp. 311-352 in Practical Philosophy, (C.U.P: Cambridge 1996) (ii) Jurgen HABERMAS, 'Why Europe Needs a Constitution' pp 1.-26 in New Left Review, 11. Sept/Oct. 2001 (iii) Jurgen HABERMAS, 'Remarks on Dieter Grimm's 'Does Europe Need a Constitution?' pp.303-307 in European Law Journal, Vol. 1, No. 3, Nov. 1995

For Further Reference: N. Maccormick, The Maastricht-Urteil: Sovereignty Now, in ELJ, 1995, 259 I. Kant, 'What is Enlightenment and 'Idea for a Universal History from a Cosmopolitan Point of View', pp. 3-26 in On History, (Macmillan Publishing: New Jersey 1963) J. Habermas, Citizenship and National Identity, in Praxis International, 1992, 1 J. Habermas, The Postnational Constellation (Cambridge Polity 2001) N. MacCormick, Questioning Sovereignty (OUP 1999)

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Z. Bauman, 'After the nation-state - What?' pp.55-76 in Globalisation - The Human Consequences, (Polity Press: Cambridge 1998)

(B) Postmodern Models Some ways of thinking about the EU involve neither the national nor postnational model. For those of a postmodern persuasion, both are seen as being too rooted in modern liberal ways of thought, too totalising, too exclusive of the many identities and ways of life that make up the EU. Furthermore, it is suggested that, as the EU is such a new, pluralist, multidimensional entity, it can only be conceptualised successfully by way of a postmodern model. We have read some postmodern works in this course, for example, those of Derrida. For Derrida, the essence of justice and ethics is the deconstruction of universality and the recognition of a universal particularity, and we find these concerns in his writings on Europe! In this class we shall read the work of another postmodern writer, Julia Kristeva, a feminist psychoanalyst working in France. For Kristeva, as for other postmodern writers, the concern is that the notion European not be constructed around the idea of exclusion. Prescribed Readings: (i) Julia KRISTEVA. Extracts from Strangers to Ourselves. (Trans. Leon S. Roudiez. New York: Columbia UP, 1991) and Nations without Nationalism (Trans Leon S. Roudiez. New York, NY : Columbia University Press, 1993).

For Further Reference: J. Derrida, Europes Other Heading (Bloomington Indiana 1995) J. Derrida, The Mystical Foundations of Authority pp 1-25 in Cornell (ed) in Deconstruction and the Possibility of Justice (Routledge 1992) I. Ward, Identity and Difference: The European Union and Postmodernism in Shaw and More eds New legal Dynamics of the European Union (Oxford 1995). G. Agamben, Homo Sacer: Sovereign Power and Bare Life, pp.15-29 and 50-67, (Stanford University Press: Stanford 1998). E. Levinas, Ethics as First Philosophy in The Levinas reader ed Hand (Blackwell 1996) Bankowski & Christodoulidis, The European Unions as an essentially contested project in Bankowski and Scott eds. The European Union and its Order (Blackwell 2000). Bergeron and Fitzpatrick eds Europes other: European Law between Modernity and Postmodernity (Dartmouth Ashgate 1998). Karl-Heinz Ladeur Postmodern Constitutional Theory: A Prospect for Self Organising Society 60 MLR 617. J. Weiler, The Promised Constitutional Land 12 KCLJ 2001 5.

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Questions for Tutorial: The National Model 1. In what ways is the EU like a state? In what ways is it not?

2. It is often said that Schmitt lies at the basis of the no-demos thesis. What is meant by this term? What did Schmitt mean by democracy? Do you agree with him? Does Grimm share Schmitts view? 3. EU? 4. Is there anything in Schmitt that we might want to keep and use in todays

What does McCormick understand by popular sovereignty?

The Postnational Model 1. What are the main features of Kants cosmopolitan law? What are its preconditions? How if at all did Kant think it could be enforced? What role did Kant accord to individuals in international justice? 2. What criticism, if any, do you have of Kants concept of cosmopolitan law?

3. What are Habermas criticisms of Grimm? Do you see any problems with Habermas view? Do you think the EU should have an (enforceable) constitution? The Postmodern Model 1. Kristeva states that the search of identity is always a hate reaction, a determination to isolate, exclude, oppress others. Do you agree? 2. What if anything do you think Kristeva owes to Hannah Arendt?

GLOBALISATION AND THE ROLE OF LAW I

Although globalisation may have been around as a force to be reckoned with since the Roman Empire and beyond, our awareness of it today is sharper than ever. It also differs from previous waves of globalisation in being more sharply economic and in having highly developed transport and communication links. There are really two key questions (and they are very much linked) for socio-legal theory.. In todays session we shall examine this question - role does/can law play in globalisation? BendaBeckmanns article addresses this issue in the context of one country experiencing the affects of globalisation. (The second question for next week is - How do global processes affect our modern traditional theories about the nature of law?)

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Prescribed Readings: (i) Philippe LEGRAIN, A Brief History of Globalisation in Legrain, Open World: The Truth About Globalisation (London: Abacus, 2002) pp. 80-117. (ii) Franz VON BENDA-BECKMANN, Scapegoat and Magic Charm: Law in Development Theory and Practice in M. Hobart ed, An Anthropological Critique of Development (London: Routledge, 1993) pp. 116-134. (iii) J. FLOOD, Globalisation and Law in R. Banakar and M. Travers eds, An Introduction to Law and Social Theory (Oxford: Hart, 2002) pp. 311-328.

For Further Reference: G. Massell, 'Law as an Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central Asia' (1968) 2 Law and Society Review 179-228 R. Cotterrell, The Politics of Jurisprudence, 2nd edn (London: LexisNexis, 2003) pp. 249-250, 257-266

GLOBALISATION AND THE ROLE OF LAW II: SOCIOLEGAL THEORY

We have seen that, in the context of the EU, traditional legal theory (such as the positivism of Hart and Kelsen) may not be very helpful. So it is with globalisation, in which the roles for, and types of, law are so varied and multiple that we need a richer more pluralist theory to cope with them. This is what is provided by the main readings for today. Teubner claims that his global living law challenges all traditional theorising about law. Sousa Santos, provides an imaginative procedure for conceptualising law in his legal global cartography. Twining provides a lively commentary on such theories.

Prescribed Readings: (i) Gunther TEUBNER, Global Bukowina: Legal Pluralism in the World Society in G. Teubner ed, Global Law Without a State (Aldershot: Dartmouth, 1997) pp. 3-28. (ii) Boaventura DE SOUSA SANTOS, Law: A Map of Misreading. Toward a Postmodern Conception of Law (1987) 14 Journal of Law and Society 279-302. (iii) William TWINING, Globalisation and Legal Theory (Butterworths).

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For Further Reference: G. Teubner, The Two Faces of Janus: Rethinking Legal Pluralism (1992) 13 Cardozo Law Review 1443-1462 B de S. Santos, Toward a New Legal Common Sense, 2nd end (London: Butterworths, 2002)

Questions for Tutorial: Globalisation and the Role of Law 1. In what ways is law implicated by globalisation? Are these significantly different from previous waves of globalisation? 2. What does Benda-Beckman mean when he states that law can be scapegoat or magic charm? Globalisation and Sociolegal Theory 1. What is Teubners global living law? In what ways does it differ significantly from our usual conceptions of law? 2.. In what ways does Santos believe that laws can be compared to maps of misreading? What is the relevance of this to globalisation? Or to social and political theory? 3. Are global pluralist theories of law simply too complex to be viable?

C. LAW, ETHICS AND HISTORY

Having established a basis in classical socio-legal theory for thinking about the relationship between the social developments that constitute modern western societies and the moral and practical nature of modern law, we now move to consider three social philosophers whose work further illuminates the nature of modern law. It is helpful to take something of an historical perspective here starting with Hegels philosophy of right from 1821, then moving to Arendts account of totalitarianism in the aftermath of the second world war, and then Derridas recent postmodern account of deconstruction and its relation to law. These three philosophers in their different periods reflect different historical experiences of living in western societies and this is reflected in their accounts of the ethical nature and significance of law. Hegel is one of the greatest philosophers of the Enlightenment, coming at its end and reflecting on what it did and did not offer in terms of modern human living. Arendt as a jewish refugee from Nazi Germany who was also well aware of developments in the contemporary Soviet Union presents a bleak view of the political and legal exhaustion

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of liberal society. Derrida, a jew raised in French Algeria during the second world war, reflects on the conflicting experiences of marginalisation and the demands of justice that many feel today. This provides us with three images of justice and their relationship to western legality.

HEGEL: LAW AS A PLACE FOR ETHICS

Writing as the lineaments of modern liberal society were becoming increasingly clear, Hegels Philosophy of Right is an attempt to think through the ethical quality of modern forms of law and their relationship to the other institutions of modern society. It views legal institutions like property, contract, tort and crime as reflections of a specifically modern form of individual self-consciousness, though it argues that the individual must also be understood as part of an ethical totality that includes family, social welfare, corporations and guilds, the police and the state. He is accordingly hard to place in terms of any modern account of what it means to be a liberal, a conservative or a socialist. There is also much debate as to whether he should be seen as a defender or as a critic of modern society. To the view that he was a defender of modern liberal society, it can be responded that he viewed that society warts and all, and that what he really wanted to do was to lay out the values, but also the conflicts and problems, that dog that society. Alternatively, it can be suggested that, while he was critical of modern liberal society, he did at the same time want to control and contain the more radical aspirations of the Enlightenment, as represented in the figure of the beautiful soul in his earliest writings.

Prescribed Readings: (i) Robert FINE, Political Investigations, chs 2 and 3 (ii) Alan NORRIE, Law and the Beautiful Soul 2004 Kings College Law Journal 15, 45-62

For Further Reference: G. Hegel, Philosophy Of Right (Oxford: OUP, 1952), paras 4, 33, 36, 40, 92, 100, 165-6, 218 (incl. addition), 220, 241-6, (incl. addition to 244 @ p.277), 257-8 (incl. addition to 258 @p.279), 260-1, 273, 279-281, 303-6 G. Hegel, Phenomenology (Oxford: OUP, 1977), pp. 383-409 G. Hegel, The Spirit of Christianity and its Fate in Early Theological Writings (Philadelphia: UPennP, 1971) C.Taylor, Hegel (Cambridge: CUP, 1975), parts 1,2,4 T.Pinkard, Hegel: a Biography (Cambridge: CUP,2000), chs 4,5

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G.Lukacs, The Young Hegel (London: Merlin, 1975), part2, ch6, part 4, ch2 C.Douzinas, Identity, Recognition, Rights, or What can Hegel Teach us About Human Rights? 2002 Jo Law & Society 379 (on modern use of Hegel R.Fine, Political Investigations (London: Routledge, 2001), chs 2,3

Questions for Tutorial: 1. Hegel said that what is rational is actual, and what is actual is rational. What did he mean? 2. When Hegel extolled the virtues of the state as the ethical life of the individual (the march of God in the world), did this indicate that his philosophy was essentially authoritarian, a forerunner of twentieth century theories of the totalitarian state? 3. What did Hegel say about the nature of poverty or the role of women in modern society. What do his statements tell us about his philosophy? 4. What was the beautiful soul, and why did Hegel kill it?

ARENDT: LAW AND THE EROSION OF MODERN ETHICS

Arendt regarded the dominant political, moral and legal experience of the twentieth century as one of totalitarianism. This experience represented a denial of all that was regarded as valuable in liberal theory, in terms of its validation of individual freedom under law. Accordingly, the natural response of liberal philosophers is to condemn totalitarian societies for their anti-liberal quality. Arendts uncomfortable critique of this position was to ask whether there were not important elements within liberal society which themselves prepared the ground for totalitarianism. Liberal society prepared the ground for its own dissolution in the ways that it evolved in the nineteenth and twentieth centuries. Even in the very beginning, nationalist elements in English society undermined the idea of universally enjoyed rights and freedoms by introducing forms of racial differentiation into their accounts of who possessed rights. In the late nineteenth century, the development of imperialism led to the introduction of forms of bureaucratic rule and racist administration which undermined liberal principles. The experience of total war in the first world war further undermined the sense of the value of the individual, producing a generation so disillusioned that the profession of liberal values seemed pure hypocrisy. Liberal society was incipiently totalitarian. Against this, it can be pointed out that the experience of totalitarianism was indeed prevalent up to the end of the second world war, but since then, the picture has been much less uniform, suggesting that there was further strength, or at least power of recovery, in liberal society than Arendt allowed for.

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Prescribed Readings: (i) Hannah ARENDT, Origins Of Totalitarianism (New York: Harcourt, 1985), pp.175-84, 207-21, 290-302, 326-40, 389-406, 460-8

For Further Reference: M.Canovan, Arendts Theory of Totalitarianism: a Reassessment in D.Villa, Cambridge Companion to Hannah Arendt (Cambridge: CUP) S.Aschheim, Hannah Arendt in Jerusalem (Berkeley: U Cal P), essays by Crick, Halberstam and Villa R.Fine, Political Investigations ch 6 D.Villa, Politics, Philosophy, Terror: Essays on Hannah Arendt L.Hinchman and S.Hinchman, Hannah Arendt: Critical Essays.

Questions for Tutorial: 1. What was it about liberal society that led to the development of race thinking in the nineteenth century, and what was its impact on liberal principle in law and philosophy? 2. Given that rights are dependent on a body that can safeguard them, can one ultimately depend on ones rights to defend one against the state? 3. 4. 5. In what sense was liberal society hollowed out from within? What is totalitarianism and how does it differ from liberalism? Was Arendts pessimism justified about the future of liberal society?

DERRIDA: LIBERAL LAW AND THE DEFERRAL OF ETHICS

Perhaps a more nuanced view of the dilemmas of liberal justice is provided by Jacques Derrida. One of the most influential philosophers of the last 20 years, Derridas philosophy of deconstruction involves a way of reading (critiquing, unpacking) texts, and an insistence on an understanding of justice as a quality that is mysteriously both present and not present in existing liberal ideas. Justice, he says, is endlessly deferred in modern practices and theories. He describes his own idea of justice as mad, mystical and messianic. While this seems initially unpromising, there is no doubting that these ideas have had an extraordinary resonance in liberal societies, so there is a sense in which he must be onto something! At the core of his

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approach to reading texts (including legal texts) is an insistence that there is always more to the text than what it seems on its face to be saying. We should always bear in mind an idea of justice that lies beyond the justice represented in the text, and which can help us to understand the limits of the justice with which we are presented. This is deconstruction as justice, as the Other in our practices. These ideas have struck a chord with those who find legal justice to be too limited or exclusionary in its forms, for example amongst women who find traditional, rationalistic conceptions of justice to favour a masculine standpoint. More generally, they can lead us to think about the kind of society we live in, and the way that liberal society induces a sense of the deferral of justice, or of a justice that is not captured in liberal forms. From another point of view, we can ask what kind of critique Derrida is engaged in: are the problems of liberal society based in a failure of its ethics, or does the failure in its ethics relate to its particular social and political characteristics?

Prescribed Readings: (i) Jacques DERRIDA, On Cosmopolitanism in J.Derrida, On Cosmopolitanism and Forgiveness (Routledge: London, 2001) (ii) Jacques DERRIDA, Force of Law: the Mystical Foundations of Authority in D.Cornell, Deconstruction and the Possibility of Justice (New York: Routledge, 1992).

For Further Reference: S. McVeigh, Postmodernism and Common Law in R.Banakar and M.Travers, op.cit. A.Norrie, From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject 2000 Social & Legal Studies 9, 85-115 C.Douzinas and R.Warrington, Justice Miscarried: Ethics, Aesthetics and the Law (London: Harvester, 1994) P.Fitzpatrick, Modernism and the Grounds of Law (Cambridge: CUP, 2001) A.Norrie and P.Goodrich, Dialogue and Debate: the Grounds of Law 2003 Social & Legal Studies 12, 108-132.

Questions for Tutorial: 1. What is deconstruction? In Derridas view, what problems do institutions or practices of forgiveness give rise to? How do these relate to his theory of deconstruction? 2. Why does liberal law need, in his view, to be deconstructed?

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3. What does he mean when he talks of deconstruction as involving an absolute sense of the Other? Is this a valuable idea? 4. In Force of Law, Derrida writes of two critiques of law, one socio-political, the other more fundamental and deconstructive. Which of these is the more useful?

D. LAW AND IDENTITY POLITICS

FEMINST LEGAL THEORY If law as a veneer serves to mask fundamental contradictions and internal inconsistencies, then one implication of this is that law, at least in the context of liberalism, fails to live up to its own embedded promise of equal treatment. Yet the difficulties which this realisation presents to sceptical approaches are by no means easily overcome. In these lectures, we will examine one school of thought which argues that law operates to the systematic disadvantage of certain of its subjects, namely women. In addition, we will look at the difficulties faced by such feminist analysis in securing an adequate means of redress through the law. In particular, we will consider the radical position of Catharine MacKinnon. According to MacKinnon, all women are fundamentally disempowered at the hands of men. Many feminists have challenged the essentialist and deterministic implications of this approach. These lectures will also examine their insight that the differences between women make the very idea of a shared female experience problematic. Prescribed Readings: (i) Catharine MACKINNON, Feminism, Marxism, Method and the State: Towards a Feminist Jurisprudence (1983) 8 Signs 635 (ii) Patricia CAIN, Feminism and the Limits of Equality (1990) 24 Georgia Law Review 803 (available via hein on line through kcl library link) (iii) Angela HARRIS, Race and Essentialism in Feminist Legal Theory (1990) 42 Stanford Law Review 581 (available via hein on line through kcl library line)

For Further Reference: N. Lacey, Feminist Legal Theory Beyond Neutrality in Unspeakable Subjects (1998, Hart) C. Littleton, Reconstructing Sexual Equality (1987) 75 California Law Review 1274 R. West, Jurisprudence and Gender (1988) 55 University of Chicago Law Review 1 A. Scales, The Emergence of Feminist Jurisprudence: An Essay (1986) 95 Yale Law Journal 1373 21

C. MacKinnon, Feminism Unmodified (Harvard Uni Press, 1987), esp. Chs 2 & 5. Also Towards a Feminist Theory of State (Harvard Uni Press, 1989), esp. Chs 8, 12 & 13. M. Mahoney, Whiteness and Women, In Practice and Theory A Reply to Catharine MacKinnon (1993) 5 Yale Journal of Law and Feminism 217

Questions for Tutorial: 1. 2. 3. 4. 5. To what extent is it fair to describe the law as patriarchal? Feminist theory in all its guises is fundamentally about equality. Assess. Should the focus of feminist theory be difference or dominance? What are the main criticisms lodged at MacKinnons dominance theory? Is it possible to have feminism without essentialism?

FOUCAULT: POWER & IDENTITY

In MacKinnons feminism unmodified, power is understood largely as a commodity held by some (men) and denied from others (women). Contemporary critiques have developed a more complex understanding of the operation of power, as something which permeates social living and which can be obtained, not only through revolution, but also through more subtle tactics of resistance and subversion. Much of this modern analysis owes a debt of gratitude to the work of Michel Foucault. In these lectures, we will examine Foucaults ideas about power, identity, and freedom. In particular, we will look at his analysis of the disciplinary function of modern power, of its implications for legal regulation and governance, and of its impact upon the self as a site of power struggle. We will contrast these ideas against the conception of power as a commodity that dominates in the work of MacKinnon and, indeed, Marx.

Prescribed Readings: (ii) V. Munro, On Power and Domination: Feminism and the Final Foucault (2003) 2 (1) European Journal of Political Theory 79 (ii) Anne BARRON, Foucault and Law in Penner, Schiff & Nobles (ed.), Introduction to Legal Theory and Jurisprudence (Butterworths, 2002)

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For Further Reference: A. Hunt & G. Wickham, Foucault and the Law (Pluto, 1994), esp. Part II M. Foucault, Power / Knowledge: Selected Interviews and Other Writings 1972 77 (ed. C. Gordon) (Pantheon, 1980) M. Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 1977) V. Tadros, Between Governance and Discipline The Law and Michel Foucault (1998) 18 Oxford Journal of Legal Studies 75 N. Fraser, Unruly Practices Power, Discourse and Gender in Contemporary Theory (Polity, 1989), esp. Part I

Questions for Tutorial: 1. 2. 3. 4. Explain Foucaults distinction between juridical and disciplinary power. By what process does Foucault envisage the operation of resistance to power? In what ways are Foucaults theories of power and knowledge relevant to law? What are the main problems posed by Foucaultian theory?

SUBVERSIVE IDENTITIES: POSTMODERN FEMINISM & QUEER THEORY

Building on the Foucaultian understanding of power as relational and productive, and of resistance as requiring subversion rather than revolution, contemporary theorists examining issues surrounding gender and sexuality have begun to adopt a more postmodern approach. In the context of feminist analysis, this has led to an emphasis on the constructed nature of gender identity, to a rejection of mono-causal explanations of gender inequality, and to a scepticism regarding the role of law as providing potential for change. Many of these ideas have also been developed in the area of queer theory this approach, as its name suggests, addresses and theorises the experience of queers (lesbian, gay, bisexual, trans-sexual) in society and in law. Like other categories of critical thought, queer theory maintains that western liberal language systems create meaning through a series of binaries, including heterosexual/homosexual, and then rely on these boundaries to signify differential levels of value and protection. Although these binaries may appear fixed, queer theory illustrates the extent to which they are in fact contingent and socially constructed, with each side of the binary only gaining its meaning in relation to its opposite. According to Carl Stychin, this dynamic must be subverted, and laws function in promoting such legitimation must be challenged. Thus queer theory is about more 23

than just uncovering and protesting against isolated instances of legally sanctioned homophobia it is also an examination of laws function in constructing heterosexual identity and affirming its value in the face of alternative practices and lifestyles. Prescribed Readings: (i) Carl STYCHIN, Laws Desire (Routledge, 1995), chapter 8 (ii) Linda BOWER, Queer Acts and the Politics of Direct Address Rethinking Law, Culture and Community (1994) 28 (5) Law and Society Review 1009

For Further Reference: M. Frug, A Postmodern Feminist Legal Manifesto (1992) 105 Harvard Law Review 1045 J. Conaghan, Reassessing the Feminist Theoretical Project in Law (2000) 27 Journal of Law and Society 351 J. Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990) C. MacKinnon, Points Against Postmodernism (2000) 75 Chicago-Kent Law Review 687 P. Currah, Politics, Practices, Publics in S. Phelan (ed.) Playing with Fire (Routledge, 1997), p. 231 C. Stychin & D. Herman, Sexuality in the Legal Arena (Athlone Press, 2000), esp. Chapters 13 & 14 F. Valdes, Coming Out and Stepping Up: Queer Legal Theory and Connectivity (1995) 1 (1) National Journal of Sexual Orientation Law 1

Questions for Tutorial: 1. Has postmodernism assisted or undermined feminist legal theory?

2. In using laws terms in order to challenge law, feminism always conceded too much. Assess. Does this also apply to the same degree to queer theory? 3. 4. 5. To what extent is it fair to describe the law as hetero-sexist? What is the relationship between queer theory and gay liberation politics? What is meant by performativity in the context of feminist and queer theory?

6. Queer theory is best understood as a component of feminist theory rather than as a theoretical approach in its own right. Assess.

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E: DEMOCRACY AND DIVERSITY

Amidst change ushered in during the 20th century by pressures toward globalization and its contestation; new conceptions of space and time arising from advances in technology and communication; and increasing movement bringing greater contact among diverse peoples from disparate cultures, we see growing emphasis on transnational approaches to politics, law and policing and exploration of new models of postnational cohabitation. Indeed some query whether it is time to leave existing forms behind so as to move on to ways of orchestrating or improvising our lives together that are entirely new. Yet, paradoxically, at just this time, we are seeing a remarkable movement of societies, especially many later developing ones, toward democratic governance rooted in a liberal conception of the rule of law just as existing models of democracy are encountering challenge in societies that industrialized first. Among the primary criticisms are queries as to the basis of modern laws legitimation and also the traditional rootedness of democratic politics in a national model of the sovereign state that may restrict its capacity to play a transnational role. Others query: whether the universalism central to liberalism can accommodate mixing and diversity of peoples; the recurring dominance of elite interests as political beneficiaries; the resistance of democratic institutions to accountability; and increasing supplantation of participatory dialogue by dynamics of control, surveillance and policing in a risk society. In this section, we explore some of the key dilemmas that have emerged in the democratic governance to which the Enlightenment and subsequent modernity gave rise. In particular, we highlight ongoing debates about the bases for social cooperation amidst inequality, exclusion, and difference.

ANTONIO GRAMSCI: HEGEMONY, TRANSFORMATIVE POLITICS AND THE EDUCATIVE ROLE OF LAW Antonio Gramsci was an Italian writer and political activist who experienced first the national unification of his country and then, in short order, its domination under Mussolinis fascism. Differences between the cultures of North and South of Italy as well as their class structures awakened Gramscis interest in the formation of consciousness and in the dynamics of culture and politics. Gramsci spent more than a decade of his relatively short life as a prisoner of the fascists and it was literally from prison he penned his work, The Prison Notebooks so called because they were written as fragments on any napkin or scrap of paper that could be smuggled by visitors to freedom. Influenced by Marx but critical of his tendency to depict politics too simply as a reflection of ruling class interests, Gramsci sought to articulate a view of politics and consciousness that highlighted the formation of political and cultural identity and explored the importance of human voluntarism and in what he called conjunctural periods of societal ripeness for change. In his work, Gramsci sought to free the analysis of class conflict and political struggle from what he saw as an overly deterministic view of history.

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Intrigued by the tendency of political actors to act against their own interests, Gramsci studied the influences that shape human consciousness a project that led him to highlight the role of ideology in power. Out of this work, Gramsci elaborated a conception of hegemony or ideological power, under whose influence women and men at times consent to developments that ultimately entail their own domination and thwart their interests. Gramscis analysis of what he describes as the educative role of law unfolds in the context of his theorizing of hegemony and political consciousness. His view of the state, while at times conflicted, offered a blend of state and civil society that was a precursor of the new social movements of the late 20th century. Gramscis work gained prominence as European intellectuals in the post WWII years responded critically to the political excesses of Stalinism in Russia. Required Readings: Antonio Gramsci, Hegemony, Relations of Force, Historical Bloc and The Political Party as Modern Prince in David Forgacs, ed., The Antonio Gramsci Reader: Selected Writings, 1916-1935, new introduction by Eric Hobsbawm, New York: New York University Press, 2000, pp. 189-222 and 240-44. Renate Holub, Antonio Gramsci: Beyond Marxism and Post-Modernism, New York and London: Routledge, 1992, Ch. 1; Ch. 5 Between Perception and Reception only; and Ch. 6 Between Habermas and Lyotard only.

For Further Reference: Walter L. Adamson, Hegemony and Revolution, Berkeley, CA: University of California Press, 1980. Eugene Genovese, The Hegemonic Function of Law in Roll, Jordan, Roll: The World the Slaves Made, New York: Vintage, 1976, pp. 161-193. Joseph V. Femia, Gramscis Political Thought: Hegemony, Consciousness and Revolutionary Process, Oxford Clarendon, 1981. Antonio Gramsci, The Sovereignty of Law, Workers Democracy and Legality in Richard Bellamy, ed., Pre-Prison Writings, translated by Virginia Cox (Cambridge: Cambridge University Press, 1994), pp. 87-90, 96-100 and 230-233. Antonio Gramsci, Selections from the Cultural Writings, Cambridge, MA: Harvard University Press, 1991. Antonio Gramsci, Selections from the Prison Notebooks, New York: International Publishers, 1971, pp. 123-57. Chantal Mouffe, Gramsci and Marxist Theory, London: Routledge, 1979. Paul Ransome, Antonio Gramsci: A New Introduction, London: Harvester Wheatsheaf, 1992.

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Ann S. Sassoon, Gramscis Politics, Minneapolis, MN: University of Minnesota Press, 1987. Vogel, Mary E. Law and the State in Social Theory in Coercion to Compromise: Plea Bargaining, the Courts and the Making of Political Authority, Oxford: Oxford University Press, 2006.

Questions for Tutorial: 1. On what, for Gramsci, does hegemony depend? To what extent does Gramsci move beyond Marxs conception of politics? What was Gramscis view of the role of law? Do you agree?

2.

3. For Gramsci, what part does his theory of consciousness play in his understanding of the social functioning of law? Does this provide a role for law in social change?

MARCUSE AND NEUMANN: TOLERANCE, DISSENT AND THE RULE OF LAW Herbert Marcuse and Franz Neumann were writers, along with Jurgen Habermas, of the Frankfurt School. They worked originally in Germany and then fled to Western Europe and/or the United States when the National Socialists under Hitler came to power during the 1930s. Perhaps their primary focus was to explore why, despite exploitative social conditions and even widespread access to the franchise in many societies, the revolutionary change that Marx had envisioned had not come to pass and Europe experienced instead the rise of fascism. As part of their inquiry, they worked to elaborate the theory of consciousness in Marxian-inspired social analysis by incorporating Freudian psychoanalytic theory into their work. In this way, they diverged from Jurgen Habermas who moved toward the philosophical pragmatism of Dewey and Pierce as a basis for his communication-based theory. The view of consciousness developed by the early Frankfurt School led them to a critique of modernity, drawing on both Marx and Weber, which claims that the promise of reason from the Enlightenment had been distorted and, then, supplanted by the rise of instrumental reason in Western capitalist societies a claim that has been queried by Joseph Raz. As a result of this distortion, they argue that fundamental questions of goals in light of values tended not to be raised. Instead the modern woman or man focuses merely on selecting means to achieve foreordained ends, or problem solving. Though humans constitute society, Marcuse contended, their psyches have also been constituted by social experiences so that it is very nearly psychologically impossible for true questioning to occur. Marcuses proposed solution to this dilemma made him the darling of the counterculture of the 1960s when he urged a return to the non-repressive, de-sublimated, libidinous, playful state

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of early childhood as a way to counteract the repressive desublimation of the capitalist world and to free the imagination once again to ask basic questions. Of course, Marcuse was motivated not only by an interest in the potential for revolutionary consciousness but also by the same question that impelled Arendt to write about the banality of evil in Duties of a Law-Abiding Citizen in Eichmann in Jerusalem. Why is it, they ask, that basically good people did not protest more strongly and actively resist the extermination of the Jews? Marcuse explores whether, in modernity, we have lost to some crucial extent the capacity for fundamental questioning. Out of this study, came an inquiry into the nature of politics that asked whether institutional politics was one of many forms of mastery and class-based domination. This led Marcuse and the members of the Frankfurt School, generally, to an interest in avant-garde art as a non-repressive form of expression and potentially subversive. It also inspired an effort to reconceptualize politics in a way that harked in its roots back to Kant as a form of art rooted in authenticity and persuasion. Like Schmitt, Marcuse and Neumann were deeply concerned about the failure of the liberal politics of the Weimar to resist effectively the rise of National Socialism. In particular, they grappled to understand the failure of the rule of law to prevent the decimation of the civil and political rights and finally the personhood of the Jews. Two works capture the quality of their lamentation as Marcuse and Neumann, each in his own way, struggle to come to terms with this low point in the history of the liberal rule of law Repressive Tolerance and The Changing Function of Law.

Prescribed Readings: Herbert Marcuse, Repressive Tolerance in Robert P. Wolff, Barrington Moore, Jr., and Herbert Marcuse, A Critique of Pure Tolerance, boston: Beacon Press, 1969, pp. 95-137. Franz Neumann, The Change in the Function of Law in Modern Society in Herbert Marcuse, ed., The Democratic and the Authoritarian State: Essays in Political and Legal Theory, Glencoe, IL: Free Press, 1957, pp. 101-143 (Reprinted in William E. Scheuerman, ed., The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, Berkeley, CA: University of California Press, 1996.)

For Further Reference: On 22 November, the Film Studies Programme at Kings College will be offering a free screening of Leni Riefenstahls classic film Triumph of the Will a documentary depicting the role of ideology, symbols and institutions in bringing about the rise of German National Socialism and maintaining it in power for so long. It will be in the Paula Lucas Lecture Theatre, Rm. 2B18, Strand at 5:15 p.m. Sigmund Freud, Lecture XXXI in New Introductory Lectures on Psychoanalysis, New York: Norton, 1965, pp. 51-71.

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Duncan Kelly, The State of the Political: Conceptions of Politics and the State in Max Weber, Carl Schmitt and Franz Neumann, London: British Academy and Museums, 2004. Herbert Marcuse, Eros and Civilization, New York: Vintage, 1955, Introduction, Chs. 1-2, 4, 6, 8 and 10-11. Herbert Marcuse, An Essay on Liberation in Roger Gottlieb, An Anthology of Western Marxism, Oxford: Oxford University Press, 1989, pp 234-248. Herbert Marcuse, One-Dimensional Man, Boston: Beacon, 1964, Introduction, Chs. 1, 3-4 and 10. Chantal Mouffe, Carl Schmitt and the Pardox of Liberal Democracy in David Dyzenhaus, ed., Law as Politics: Carl Schmitts Critique of Liberalism, Durham, NC: Duke University Press, 1998, pp. 159-178. Franz Neumann, The Concept of Political Freedom in Herbert Marcuse, ed., The Democratic and the Authoritarian State: Essays in Political and Legal Theory, Glencoe, IL: Free Press, 1957, pp. 195-230 (Reprinted in William E. Scheuerman, ed., The Rule of Law Under Siege.) Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society, London: Berg Publishing Ltd., 1986 Joseph Raz, The Myth of Instrumental Rationality. William Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law, Cambridge, MA: MIT, 1997.

Questions for Tutorial: 1. Compare and contrast the challenge to traditional liberalism that Marcuse presents in Repressive Tolerance with Schmitts critique. How is Marcuse similar and how does he differ in the assumptions he makes, his assessment of the limits of liberalism, and his prescriptions for change? Do you agree? 2. How can one reconcile Marcuses stance in Repressive Tolerance with his theoretical quest in Eros and Civilization to critique and explore ways to undo the consequences of repression in modern society? Would Marcuses proposal lead to more or less repression? 3. How do Franz Neumanns claims in The Change in the Function of Law in Modern Society respond to Marcuses claims in Repressive Tolerance about the role of the rule of law in the face of political repression? What role do rights play in their thinking? 4. According to each of Marcuse and Neumann, why do people obey laws?

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HORKHEIMER: THE CULTURE INDUSTRY, APPROPRIATION OF DISSENT AND THE ROLE OF ART IN THE QUEST FOR LIBERATION Max Horkheimer, like Marcuse also a member of the Frankfurt School, was a major contributor to the developing critique of instrumental reason. He also sought to articulate a cultural critique by contextualizing culture within social developments. Culture, once a source of beauty and truth, was succumbing to standardization. This was a consequence of the rise of instrumental rationality in modernity. Horkheimer argued that art, which had once cultivated individuality was being transformed into a culture industry and promoted conformity instead. In his work, he highlighted the ways in which the political consciousness of moderns was distracted and dissent was appropriated by this emergent culture industry. Part of the emerging consumerism of the day, the culture industry commercialised and diluted potentially persuasive and subversive avant-garde artistic expression to appeal to the lowest common denominators of mass taste. The political implication, in Horkheimers view, was to consolidate unfreedom since aesthetics lay at the basis of a new potentially liberating politics. Whereas Neumann examined the rule of law and bases of legitimation, Horkheimer highlighted authenticity and politics rooted in its persuasive power as an approach to conflict resolution and social change.

Required Readings: David Held, The Culture Industry: Critical Theory and Aesthetics in Introduction to Critical Theory: Horkheimer to Habermas, Berkeley, CA: University of California Press, 1980, pp. 77-110. Joanne Hollows and Mark Jancovich, Mass Culture Theory and Political Economy in Approaches to Popular Film, Ch. 1, pp. 15-23. Douglas Kellner, From Authentic Art to the Culture Industries in Critical Theory, Marxism and Modernity, Baltimore, MD: Johns Hopkins University Press, 1989, pp. 121-145.

For Further Reference: Walter Benjamin, The Work of Art in an Age of Mechanical Reproduction, Reflections, New York: Shocken, Ch. 9. David Held, The Critique of Instrumental Reason in Introduction to Critical Theory: Horkheimer to Habermas, Berkeley, CA: University of California Press, 1980, pp. 148-174. Max Horkheimer, The Rise and Decline of the Individual in The Eclipse of Reason, New York: Continuum, 1974, pp. 128-161.

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Max Horkheimer and Theodore Adorno, Dialectic of Enlightenment, New York: Continuum, 1944, Preface, Introduction and The Culture Industry: Enlightenment as Mass Deception, pp. 94-136. Gerard Jones, Honey, Im Home: Sitcoms and the Selling of the American Dream, Ch. 7, pp. 87-102. Georg Lukacs, Art and Objective Truth in Arthur D. Kahn, ed. and tr., Writer and Critic and Other Essays, New York: Grosset and Dunlap, 1971.

Questions for Tutorial: 1. On what, for Horkheimer, does the rise of the culture industry depend? Do you agree? (Draw on events in cultural history to support your own view.) 2. Compare and contrast Horkheimers view of the role of culture in society with that of Gramsci. 3. On what were criticisms of resignation in the political theorizing of the Frankfurt School based? Do you agree? 4. What role did avant-garde art and film play in their effort to develop an authentic vision of politics?

BOURDIEU: HABITUS, SYMBOLIC POWER AND LEGAL CULTURE Bourdieu, a Frenchman still living and working today, sought to move beyond what he saw as a Marxian and neo-Marxian that centred too exclusively on the economy. Intrigued as were so many Marxists of the 1960s by the failures both of the revolutions envisioned by Marx to materialize and also of humans to resist the excesses of both Nazism and Stalinism, Bourdieu also felt a need to conceptualize more richly the processes by which human consciousness is shaped in the quotidien. In his work, Bourdieu brings culture to center stage without giving up ideas of social class, conflict and struggle. He shows that much of our world such as social structure and institutions are complex webs of cultural practices, including legal rules and styles, and that these practices influentially shape not only our behaviour but what we are as persons. To characterize the person, Bourdieu paints a portrait of the habitus or repertoires of ways of acting that make us each unique. In a world consisting of power relations, both tangible and symbolic, Bourdieu depicts self-reflexive beings engaged in processes of improvisation as they struggle to control their fates. Such power to direct ones life and events in desired directions, Bourdieu calls capital. Far from being a solely economic concept, he argues that it may take cultural or social as well as economic forms. As they struggle to overcome inequality, the practices they undertake, parardoxically, yield the unintended consequence of reproducing the structures of exclusion and difference that they challenge. Thus, for Bourdieu, one of the primary dynamics of history is the social reproduction of inequality.

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Bourdieus work directs our attention to law and legal culture. In his work Bourdieu distinguishes between rules and regularities claiming that the lawyers world is one of rules. Bryant Garth and Yves Dezalay have drawn on Bourdieus work to analyze the development of international commercial arbitration. They show the role played by lawyers cultural and social capital in shaping new practices that fundamentally influence conflict resolution, distribution of wealth and the nature of politics. Required Readings: Pierre Bourdieu, Distiinction: A Social Critique of the Judgment of Taste, Introduction; The Aristocracy of Culture (Ch. 1, pp. 11-18 only); The Choice of the Necessary (Ch. 7) and Culture and Politics (Ch. 8, pp. 397-426 only). Yves Dezalay and Bryant Garth, Law, Lawyers and Social Capital: Rule of Law versus Relational Capitalism, Social and Legal Studies: An International Journal, 1997. Mikael Madsen and Yves Dezalay, The Power of the Legal Field in Reza Banakar and Max Travers, Introduction to Law and Social Theory, Oxford: Hart Publishing, 2002, pp. 189-204.

For Further Reference James Bohman, Practical Reason and Cultural Constraint: Agency in Bourdieus Theory of Practice in Richard Shusterman, ed., Bourdieu: A Critical Reader, Oxford: Blackwell, 1999, pp. 32-44 only. Pierre Bourdieu, Language and Symbolic Power, Harvard University Press, 1993. Pierre Bourdieu, Outline of a Theory of Practice (R. Nice, tr.), Cambridge: Cambridge University Press, 1977. Butler, Judith, Performativitys Social Magic in Richard Shusterman, Bourdieu: A Critical Reader, Oxford: Blackwell, 1999, pp. 113-128. Bryant Garth and Yves Dezalay, Dealing in Virtue: International Commercial Arbitration and the Construction of a New Legal Order, Chicago, IL: University of Chicago Press, 1992. Michele Lamont, Slipping the World Back In: Bourdieu on Heidegger, Contemporary Sociology 18, no. 5: 781-83. Tim Murphy, Legal Fabrications and the Case of Cultural Property in Alain Pottage and Martha Mundy, eds., Law, Anthropology and the Constitution of the Social: Making Persons and Things, Cambridge: Cambridge University Press, 2004. Phillipe Raynaud, Bourdieu in Mark Lilla and Mark Little, eds., New French Thought, Princeton, NJ: Princeton University Press, 1994.

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Questions for Consideration: 1. On what does Bourdieus distinction between rules and regularities depend? Do you agree with his characterization of the world of law? 2. Compare Bourdieus conception of the person with that of Marcuse. In what ways is the vision of each strong or weak? 3. In what ways has Bourdieus influence shaped Dezalay and Garths interpretation of change in international commercial arbitration? How might their study differ had they based their analysis instead on Gramscis work?

DIVERSITY AND DEMOCRACY Even as globalization advances and politics assumes an increasingly transnational style, issues of particularity are, paradoxically, at the same time growing in significance as diverse ethnic and cultural groups make new claims on society. To a large extent, this is an outgrowth of the sense of economic, political and cultural exclusion sensed by many social groups under liberal democracy. Issues of diversity are also being focused by the freer movement of peoples under the enlarging European Union and, more broadly, in an ever more interconnected globalizing world. Our question for today is what forms have these cultural claims taken and what have/should be the consequences for democracy? Here we consider three models of democracy amidst diversity: cultural rights, new deliberative arrangements, and a cosmopolitan alternative. Postmodernist legal scholar Stanley Fish offers a counterpoint.

Prescribed Readings: Jane Mansbridge, Using Power/Fighting Power: The Political in Seyla Benhabib, ed., Democracy and Difference: Contesting the Boundaries of the Political, Princeton, NJ: Princeton University Press, 1996, pp 46-66. Will Kymlicka, Three Forms of Group-Differentiated Citizenship in Canada in Seyla Benhabib, ed., Democracy and Difference: Contesting the Boundaries of the Political, Princeton, NJ: Princeton University Press, 1996, pp 153-170. Stanley Fish, Mutual Respect as a Device for Exclusion in Stephen Macedo, ed., Deliberative Politics: Essays on Democracy and Disagreement, Oxford: Oxford University Press, 1999, pp. 88-102.

For Further Reference: Kwame Anthony Appiah, Rooted Cosmopolitanism in Ethics of Identity, Princeton, NJ: Princeton University Press, 2004, pp. 213-272

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Seyla Benhabib, From Redistribution to Recognition: The Paradigm Change of Contemporary Politics in The Claims of Culture: Equality and Diversity in the Global Era, Princeton, NJ: Princeton University Press, 2002, pp. 49-81. Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens, Cambridge: Cambridge University Press, 2004, Ch. 1, pp. 1-24. Avishai Margalit and Joseph Raz, National Self-Determination in W. Kymlicka, ed., The Rights of Minority Cultures, Oxford: Oxford University Press, 1995, pp 79-92. Fred Dallmayr, Democracy and Multiculturalism in Seyla Benhabib, ed., Democracy and Difference: Contesting the Boundaries of the Political, Princeton, NJ: Princeton University Press, 1996, pp 278-94. Amy Gutmann, Identity in Democracy, Princeton, NJ: Princeton University Press, 2004. Ian Haney-Lopez, The Social Construction of Race in Stephen Delgado an Jean Stefancic, eds., Critical Race Theory: The Cutting Edge, Philadelphia, PA: Temple University Press, pp. 163-176. Alain Pottage, Law, Anthropology and the Constitution of the Social: Making Persons and Things, Cambridge: Cambridge University Press, 2004. Charles Taylor, Multiculturalism, Princeton, NJ: Princeton University Press, 1994. Iris Marion Young, Inclusion and Democracy, Oxford: Oxford University Press, 2002. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative in W. Kymlicka, ed., The Rights of Minority Cultures, Oxford: Oxford University Press, 1995. Cornel West, The New Cultural Politics of Difference in Charles Lemert, ed., Social Theory: The Multicultural and Classic Readings, Westview, 1998. Patricia J. Williams, Alchemy of Race and Rights, Cambridge, MA: Harvard University Press, 1992.

Questions for Tutorial: 1. When a cultural group has endured a history of discrimination, is justice satisfied by the equal treatment or are special rights be justified? 2. Is there something irreconcilable about differences rooted in ones very identity so that they cannot prove a tractable basis for politics? 3. To what extent has there been a paradigm shift from a politics of redistribution to a politics of recognition in recent decades. How would you respond to critics who

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claim that such a political re-orientation is hegemonic in that it distracts political attention from vital realities of resource distribution? 4. To what extent are our identities simply ways that we imagine ourselves so that they are flexible and boundaries that can be reimagined?

21. DILEMMAS OF DEMOCRACY AND ITS ALTERNATIVES Recent decades have seen an enormous expansion of judicial power that appears to be occurring virtually worldwide. At the same time, forces of globalization, economic and social interconnectedness and the movement of peoples are producing strains in traditional forms of governance and sovereignty. Human rights regimes are bringing pressure to bear on autocratic governments. Democracies, for their part, are challenged for shortcomings, many of which arise from their association with nationalism, colonialism and exclusionary forms of liberal universalism. Here we focus on two questions. To what extent has the role of the judiciary expanded? What models of democratic politics or other alternatives are best suited to the new demands of our globalizing, fluid and increasingly transnational world. The Judicialization of Politics? Required Readings: Aileen Kavanagh, Participation and Judicial Review, Law and Philosophy, 22:45186, 2003. David Marquand, New Reckoning: Capitalism, States and Citizens, Cambridge: Verso, 1998.

For Further Reference: Jeffrey Goldsworthy, The Sovereignty of Parliament, Oxford: Oxford University Press, 2001, pp. 236-280 Allan Hutchinson and Patrick Monahan, The Rule of Law, Toronto, Ontario: Carswell, 1987, Chs. 4-5, pp. 92-123. J. E. Penner, Legal Reasoning and the Authority of Law in Lucas H. Meyer, et al., eds., Rights, Culture and the Law, Oxford: Oxford University Press, 2003. C. Neal Tate and Torbjorn Vallinder, The Global Expansion of Judicial Power, New York: New York University Press, 1997, Chs. 1 and 3, pp. 1-10 and 27-37. Jeremy Waldron, Law and Disagreement, Oxford: Clarendon Press, 1999, pp. 101103 and 246-247.

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Questions for Tutorial: 1. To what can we attribute the recent expansion of judicial power? What has been its consequence for politics? 2. Does an expanded judicial role always augur reduced political accountability?

Democratic Innovations and Their Alternatives: Required Readings: John S. Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations, Oxford: Oxford University Press, 2001, Chs. 4 and 5. Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation, Cambridge: Cambridge University Press, 2002, Ch. 1.

For Further Reference: J. Habermas Paradigms of law in Rosenfeld and Arato ed Habermas on Law and Democracy: Critical Exchanges (California University Press 1996) Douglas E. Litowitz, Jean-Francois Lyotard: Post-Modern Gaming and a Plurality of Justices in Post-Modern Philosophy and Law, Lawrence, KA: University of Kansas Press, 1997. Jacqueline Mraz, Modernity, Post-modernity and the Law: A Question on Begging the Question, in Susan Silbey, ed., Studies in Law, Politics and Society, New York: JAI Press, 1994. Alain Pottage, A Unique and Different Subject of Law in Peter Goodrich and David Gray Carlson, eds., Law and the Postmodern Mind, Ann Arbor, MI: University of Michigan Press, 1998, pp. 13-52. Boaventura de Sousa Santos, Democratizing Democracy, Cambridge: Verso, 2006. *Emilia Steuerman, Bounds of Reason: Habermas, Lyotard and Melanie Klein on Rationality, London: Routledge, 1999. Charles Taylor, Modern Social Imaginaries, Durham, NC: Duke University Press, 2004, Ch. 1. Questions for Consideration: 1. What strengths and weakness characterize each of the models advanced by Dryzek and de Sousa Santos? What lines of development would you favour?

Models of Law Lawrence Lessig or Roger Brownsword

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Joseph Raz Dworkin Boaventura de Sousa Santos and Cesar A. Rodriguez-Gravito, eds., Law and Globalization from Below: Towards a Cosmopolitan Legality, Cambridge: Cambridge University Press, 2005. *Cotterrell on transplantation and types of law Cotterrell on communities Jacqueline Mraz, Of Law and the Tears of Things For Further Reference:

Questions for Consideration 1. What is Teubners global living law? In what ways does it differ significantly from our usual conceptions of law? 2.. In what ways does Santos believe that laws can be compared to maps of misreading? What is the relevance of this to globalisation? Or to social and political theory? 3. Are global pluralist theories of law simply too complex to be viable?

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