Justice with a differance

January 23, 1998

In the second of our series in which leading academics and their postgraduates describe how theoretical methods derived from French philosophy have transformed their subject, Costas Douzinas revels in the growth of new approaches to legal studies.

When I started my academic career in the early 1980s I was told by my head of department that if I persisted with my theoretical interests I would have to publish twice as much as someone doing conventional research to get similar recognition. A few years later, an article of mine was rejected by a law journal because of a few words, including "deconstruction" and "logocentrism", which could not be found in the Oxford English Dictionary or were thought unclear. An article of another scholar, introducing the work of Pierre Legendre, the prolific French legal historian of a psychoanalytic persuasion, was rejected because Legendre's name could not be traced in Oxford's Bodleian Library and the article was suspected of being a hoax.

How things have changed in the past ten years. The word "deconstruction" appears repeatedly on essay titles in the Oxford Journal of Legal Studies, bastion of orthodoxy. An English reader of Legendre's work has just appeared and an interest in theory is a positive advantage for young scholars applying for academic posts. A number of theoretical journals, such as Law & Critique, Social and Legal Studies and Feminist Legal Studies have been set up and are flourishing. Law textbooks, the last resort of learning law through memorising rules, have opened to new approaches. Criminal law, contract and tort and constitutional law are some of the core curriculum areas in which critical theory textbooks have appeared; more are expected. Theory has entered daily teaching, creating unprecedented excitement. Legal studies are experiencing a mini-renaissance.

It would be impossible to list the cause of these changes. Some are internal to the legal academy, while others are part of the wider cultural context of the 1990s. It should be noted, however, that while legal education tends to be conservative, British law schools have always been more open-minded than their continental counterparts. Another factor is the increasing trend among law graduates not to enter the profession but to treat the law as a general degree that guarantees careers in both the public and the private sectors. In this new environment, academics are expected to present a wider picture of the world of law and to address the cultural experiences of a more discerning student body.

But what is this "new" theory, the fragile buds of which can be detected everywhere? Traditional legal theory can be divided into internal and external approaches. Internal theories adopt the view of the lawyer or judge and try to theorise the process of reasoning used in law courts and other legal institutions. External theories, typically the sociology of law, treat reasons and arguments as "facts" to be incorporated into wider non-legal explanatory contexts. The task is to identify the causal chains that shape or are shaped by legal practices.

The two approaches were at loggerheads and no meaningful dialogue developed. New theory promises to overcome this impasse. Unlike contextual approaches, it carefully reads legal texts and legal history. But unlike internal theories, it reads these texts not just for their normative coherence but also for their omissions and distortions, the sins or symptoms of the operation of the power or "unconscious" of the institution.

New legal theory has many strands, including feminism, queer theory, semiotics, critical theory, postmodernism, rhetoric, hermeneutics and psychoanalysis. As the list suggests, it is critical in intent, eclectic in scope and occasionally apocalyptic in tone. An example of new theory comes from the school of "law and literature", initially developed in America but now flourishing here. Literary jurisprudence reads world literature that refers to legal themes, from Sophocles to Franz Kafka and from Shakespeare to Thomas Pynchon, to examine the wider cultural understanding of legal operations, but also law's internal world - the personal and professional assumptions and characteristics of lawyers that are not discussed elsewhere in the curriculum. Literature becomes a mirror that illuminates aspects of law that its practitioners' self-understanding neglects or misses.

Equally important is the reverse process, reading law as literature. Traditional legal study reduces the law to a series of concepts or rules, which may be separated from the text, its tradition and history and examined independently for their truth or adequacy. But this reduction of legal materials into archives of conceptual arrangements and propositional statements both impoverishes the legal text and leads to an abandonment of moral responsibility. Emphasising the ethical dimension of legal argument, on the other hand, opens the law to a continuously renewed effort to imagine and build a good society and a fairer legal system. For literary lawyers, the reading of literature and literary theory are models for this process. Literature offers a vision of community that must be teased out by the reader in creative acts of interpretation. Similarly, legal arguments and judgements do not represent but create a purposeful image of the world and a moral vision of law. To read law as literature is to attend to its semantic richness, its narrative organisation, its rhetorical arrangement, its reference to other texts and traditions and, last but not least, to possibilities and pathways the legal text could have taken but did not. It is to read the legal text not as a set of propositions and rules but as a tissue of possibilities realised, a thesaurus of directions taken and of opportunities missed, as a rich and complex set of meanings open to their rewriting and re-reading in new contexts.

E. P. Thompson, in his polemic against philosopher Louis Althusser, famously entreated the English academy to keep French theory, like the rabies, on the other side of the Channel. It gave me a sense of satisfaction to be told, during my sabbatical year in Europe and the US, that continental and American colleagues look up to "new" English legal theory to help them revitalise their own scholarship. It is a rare instance of importing the rabies, despite repeated health warnings, developing a unique English breed, and then re-exporting it to a welcoming world.

Costas Douzinas, professor of law at Birkbeck College, is on sabbatical at the European University Institute, Florence, and at Princeton University.

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