Critical Jurisprudence: The Political Philosophy of Justice by Costas Douzinas and Adam Gearey
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00650_1.x |
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political
Philosophy of Justice,370pp,pbd22.00, Oxford and Portland, Oregon: Hart
Publishing, 2005, ISBN:184113452X
As the authors point out at the beginning, most English language works of Jur-
isprudence are boring, dryas dust. This book is di¡erent. It is enjoyable. It is also
well-written and does not succumb to the tendency to equate critical writing
with linguistic barbarism. Itis also wide-rangingin its coverageand in the sources
upon which it draws. Judicious use is made of American critical legal literature,
especially where Americans are the main generators of particular themes or sub-
¢elds within the general ¢eld (eg critical race theory) but there is no bowing
down at American altars as if these map out the ¢eld. Instead, the book is ¢rmly
and knowledgeably grounded in European thought., and thi s of a broad kind ^
Foucault, Levinas, Lacan etc; in other words, its source material is not limited to
‘legal theory’ whatever that is supposed to be.
There is not exactly an argument ^ why should there be? ^ but there is a sensi-
bility.The authors claim (I quote from the blurb) that‘all legal aspects of the eco-
nomic, political, emotional and physical modes of production and reproduction
of societyare part of criticaljurisprudence’. I am not entirely surewhat this means
but I think I agree. They continue: ‘This widening of scope allows a radical
rethinki ng of the nature of rights, justice, sovereignty and judgement.’ ‘Law’s
complicity with political oppression, violence and racism has to be faced before
it is possible to spe ak of a new beginning for legal thought, which i s in turn the
necessary precondition for a theory of justice.’ Critical jurisprudence, they claim,
(and which they de¢ne i n a manner in which ‘it’speaks through them rather i n the
way that ‘Philosophy’ spoke through Hegel (according to Hegel)): ‘o¡ers a nethics
of law against the nihilism of power and an aesthetics of existence for the melan-
cholic lawyer’.
There is a kind of Salvationism embedded in these proclamations and it is not
clear on what basis other than hope itself these statements of intent are based.To
make so much turn on justice and ethics, especially in a pedagogical context, runs
the risk of encouraging the next generation of lawyers to reproduce the rather
mindless (at its worst) or casuistic (at its best) contribution which lawyers have
made to the current disorder of the ‘new world order’.The ‘nihilism of power’ is,
in this context, not a very useful target. I am not sure how to explain it, but
what we seem to have today is a loss of the subtlety, in contemporary political dis-
course, of Weber’s long-established distinction betweenthe ethics of intention and
the ethics of responsibility. Perhaps this distinction itself is a re£ection of the
nihilism of power, although, in the spi rit of Weber, one might suggest that
neglect of the distinction is a symptom of the recklessness of our age and that the
in£ation of eth ics in the internatio nal sphere is a double-e dged sword the wielding
of which might better be avoided in the interests of a nihilism of power which
is attuned to the dangerousness of the world. In other terms, we should put
to one side the (hardly new, or critical, or postmodern) dream of governing by
morality.
The aesthetics of existence is another matter. This Foucauldia n notion ^
broadly similar to what Judith Butler calls performativity ^ is entirely
Reviews
517
r2007 The Authors.Journal Compilation r2007. The Modern Law ReviewLimited
(2007) 70(3)MLR 505^522
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