Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice

Hart Publishing, Oxford, 2005.
ISBN 1-84113-425-X

Reviewed by Dr. Stephen Riley, Sheffield Hallam University

The paradox explored - and embodied - in this text is that critical legal thought is a necessary precondition and corrective to law but that critical legal thought necessarily contains the seeds of its own destruction.  Douzinas and Gearey step back from critical legal studies’ dissolution into the ‘ands’ of law and race, law and hermeneutics, law and feminism and so on, and expose this central paradox as it arises both from law’s relationship with philosophy (philosophy is in creative opposition to law’s latent drive towards autopoiesis, law viewing itself as a self-sustaining system without a single goal or function) and from the movement's own critical self-negation (its various strands are inter-critical or even incommensurable).  Douzinas and Gearey’s work is a synoptic text which draws together these themes; it also self-consciously navigates dangerously through a paradox.

Critical legal thought has few common denominators but one clear responsibility. That is, to revive jurisprudence through re-engagement with the philosophical tradition as a whole.  This is a deceptively simple proposition, pregnant with possibilities and beset with difficulties.  The principal barrier is that the jurisprudential tradition has been a system of thought driven by legal assumptions rather than driving legal assumptions through philosophical engagement.  More particularly, jurisprudence has allowed justice to become an adjunct or by-product of legal processes rather than an animating spirit. This is not simply to suggest that justice has lost value with the demise of natural law and the triumph of positivism.  It is a symptom of a dangerous two-fold movement.  First, jurisprudence’s self-blinding to the individual in their otherness due in part to the Enlightenment's love of the thinly rational and autonomous individual.  Second, it is also a movement inward towards the legal text, a reification of justice in black letters to the exclusion of the social: 

“The restricted jurisprudence of modernity, by focussing exclusively on the form of law – the logic of the institution, legal texts and the protocols of legal procedure – forgets that law has always been a mode of social being and an aspect of the way in which the individual existence is hooked up to the social.”  (p. 33)

The reasons for this are as complex as the emergence of Western society out of the Middle Ages, but following Nietzsche, the authors suggest that jurisprudence’s quietism arises in some measure from a wider epistemological (and psychological) suspicion of becoming - change / flux - in favour of a mummifying thirst for order and predictability.  Consequently, this book is a (by no means modest) call to regain sensitivity to becoming, otherness, and flux and thereby reconnect law with justice as it is understood, and contested, in philosophy.

Justice - as a philosophical preoccupation and as formalism’s critical shadow - has become severed from law.  Justice is now something only observed in its breach.  But this should not be mistaken for justice being a language game necessarily played outside law.  Justice is the unification of the embodied individual (in their difference and in their singularity), law (in its potential to acknowledge and harmonise difference and singularity), and ethics (in its potential to critically transcend the harmony sought by law):

“If the law calculates, if it thematises people by turning them into legal subjects, ethics is a matter of an indeterminate judgement without criteria and justice is the bringing together of the limited calculability and determinacy of law with the infinite openness of ethical alterity.” (p. 28)       

One constant within this analysis of justice is the role and function of human rights.  How we understand human rights, as Douzinas more fully explored in his End of Human Rights,(1) is a reflection of the state of the critical legal studies movement.  They are a remnant of the drive for justice, persisting, albeit in a denatured form, in the formalism of post-justice law.  They contain both utopian promise and a resistance to utopian promises where these are in opposition to change, becoming and otherness.  These themes are adopted from the German Marxist Ernst Bloch, who saw in natural rights the promise of dignity, solidarity and inclusion but also struggled with the necessary deferral of utopia, the ‘not-yet’ of aspiring to justice but accepting that justice realised is always not-yet perfect justice.

“Like all utopias, they [human rights] deny the present in the name of the future, which means they paradoxically deny the rights of laws and states in the name of the plural humanities yet to come.”  (p. 105)

Equally, the critical legal movement aspires to regain justice but with a negation of the programmatic, the dogmatic and the static.  More specifically, the movement must remain, like Bloch and Marx, in an ambivalent relationship with rights: rights are a cruel promise of justice vouchsafed by law to the oppressed; they are also a key point of resistance to law without justice.  In sum, critical legal thought must reunite law with justice, but this is emphatically not to accept human rights as a panacea: “human rights are both the malady and its cure […].” (p. 105)

Critical legal studies’ suspicion of even this most ‘progressive’ of legal discourses is reflected in the history of the movement.  Douzinas and Gearey chart the growth of a movement that has no aspiration to coherence, dogmatism or unity.  Consequently, in the latter stages of the book there are extensive discussions of how and why critical race theory, postcolonial theory, feminist theory and other branches of the fecund but dysfunctional critical legal family have talked without a single voice.  These are autonomous fields of enquiry, employing a range of methodologies, often loosely cohering around conference networks, which staunchly fail to provide a single, coherent, critical agenda.  This is, of course, to be applauded insofar as it reflects both a theoretical praxis arising from concrete social relations, and insofar as it is a re-appropriation of the philosophical tradition for the purposes of critical engagement with law. 

“One needs to affirm iteration: history will always turn out differently; the moment of critique must re-appear and carry on re-appearing.  Remaining authentic means sustaining the anxiety of a thought that juggles the relationship of contingency and history.” (p. 258)

It also clearly reflects the problem of acknowledging law’s emancipatory potential while being suspicious of laws complicity with oppression.  There is, then, a reflexive engagement with the tradition here, and accordingly there are substantial roles played by the key hermeneutes of suspicion (Marx, Freud, Nietzsche) and their progeny.  The themes and ideas that these theorists inspire run through Gearey and Douzinas’ text, and it is through them that some possible points of (counter-) critique can be identified.

In the Freudian vein, there is an exploration of how law is a central preoccupation of early psychoanalytical theory (p. 305f).  Psychoanalysis not only promises a therapy of discourse but also a therapy of desire, re-conceiving agency and power away from the normalisation of ‘authorised’ deciphering of the psyche via law.  More widely, the ‘other’ is a key leitmotif in the text as a whole.  This other is the excluded and the negated; it is also the internalised authority of the law (Lacan’s ‘Big Other’).  It is natural in this context to refer to the other as ‘the Victim’ (this is law after all), but this identification of the other with the victim presents problems of its own.  Another Lacanian, Zizek, powerfully uses Lacan in his engagements with law.  Most importantly, against the ‘universalisation of the victim’, Zizek argues that the figure of the victim has become the ideological placeholder par excellence, deployed to engender solidarity in the absence of political analysis.(2)  For Douzinas and Gearey the victim is a key point of reference, and there is a danger of reading their plea for the acknowledgement of the other simply as identification with ‘the victim’.  For instance: “If we do not have a theory of justice we must start from the bottom up, from the perspective of the losers and the oppressed.” (p. 30)  Again: “What makes justice indispensable is exactly her caring for the victims and her passionate denunciation of injustice in law and outside law.”  (p. 135)  It is a challenge, perhaps beyond the scope of this book, to identify how we can avoid ‘the victim’ becoming an uninterrogated blind-spot in critical engagement.(3)

Critical legal theorists have been uncommonly willing to engage with Nietzsche (and not just in a palatable form through Foucault), avoiding knee-jerk resistance to the dangerous thinker.  Nietzsche offers a genealogy of power and an assault on stasis:

“Behind the foundation of a legal order is the power of a class that has authority to mandate a body of rules that prescribe a way of living.  Once this code is established, there can be no further experimenting or questioning of the values that have been fixed in law.”  (p. 53)

Regaining the ‘innocence of becoming’ from this stagnation is a challenge that has to be pursued through casuistry, the treatment of cases and events in their singularity:

This requires acceptance of the aporia (helplessness / impossibility) of justice, requiring both the autonomy of the law and the preservation of rule-following.  Is this answer a sufficient response to Nietzsche’s subversive genealogy of law and morality?  It is worth bearing in mind Nietzsche's critique of the original critical thinker, Socrates: he, and we, may exhibit too little Dionysian spirit in our critique.(4)  This is the charge levelled by the authors, albeit implicitly and with sympathy, towards ‘law and literature’ studies (p. 336f).  Providing a sense of the lived reality of law, literature should become a critical interlocutor in law.  As it stands, a few texts (Kafka’s in particular) are deployed with and against law, but in the main this is a field of enquiry lacking the playfully destructive spirit that critical studies can, and should, exhibit.  Similarly, the aporia found in casuistry, the aporia of a ‘law-preserving acknowledgment of singularity’, should be seen a point of critical departure, not a final resting place for theories of judgement.  Perhaps, following Walter Benjamin, it is in law-destroying and law-creating that real opposition to law’s violence is found.

Finally, Marx's spectre has loomed - perhaps disapprovingly - over the critical legal movement.  The text offers sophisticated engagement with Marx’s legacy, and a convincing revision of those interpretations of Marx which portray him as both reducing law to a by-product of economic relations and having a dubious relationship with any progressive agenda (p. 203f).  What it is perhaps more difficult for critical legal thought to come to terms with is Marx and Marxism’s internationalism.  There is no substantial discussion of international law in Douzinas and Gearey’s text (although both have written on it elsewhere).(5)  And in a sense this accurately reflects the dearth of critical engagement with the field.  On the other hand, cosmopolitan theories, as well as deconstructive and critical work in the field(6), are preoccupied precisely with the pursuit of justice in a legal field especially prone to positivist opposition to such ‘extra-legal’ concerns.  Of course, Marxism’s internationalism was, and is, one of the reasons why Marxist theory, particularly in Britain, is viewed with suspicion (it led to a wilful blindness to Soviet totalitarianism and the failure to cultivate sustainable indigenous communism) but Marx reminds us that oppression and resistance have an irreducibly global dimension, which should, and can, be a counter-foil to the dangerously state-centric and criminogenic international legal system.

These lines of criticism and enquiry notwithstanding, the book is a rich and accomplished collation of critical thought and materials.  Stylistically, the book is much clearer than much else found in the area (including much of Douzinas and collaborators’ earlier work) and contains fragments of fictive and autobiographical narrative which puncture the authority of the text with reflections on life, knowledge, writing and finitude.  These devices make it a memorable read.  The book is not, however, an introductory text or a simple resource (although students being introduced to critical themes could be directed to useful and clear passages).  The reading experience as a whole might be summarised as melancholic.  It is, after all, the story of law and justice’s divorce.