From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject
| Published date | 01 March 2000 |
| DOI | 10.1177/096466390000900105 |
| Author | Alan Norrie |
| Date | 01 March 2000 |
| Subject Matter | Articles |
FROM CRITICAL TO
SOCIO-LEGAL STUDIES: THREE
DIALECTICS IN SEARCH OF A
SUBJECT
ALAN NORRIE
King’s College, London, UK
My argument, however, is that the most vigorous forms of Hegelianism in the
twentieth century have been thoroughly unconscious of the fact. (Stuart
Barnett, 1998: 296)
It is important to understand that when logical contradictions are committed,
they are real constituents of the Lebenswelt. (Roy Bhaskar, 1993: 58)
ABSTRACT
This article addresses the ‘gap’ between socio-legal studies and critical legal theory.
Examining Derrida’s ‘Force of Law’, it argues that the fault lies as much with the
latter’s marginalisation of the social and political character of the law as with the
former’s narrow, policy-oriented character. Despite such marginalisation, decon-
structive concepts such as supplementarity and différance are important and ought to
be preserved for a critical sociology of law. This becomes possible once Derrida’s posi-
tion is located within the modern dialectical tradition initiated by Hegel and devel-
oped by Bhaskar.
Both Hegel and Derrida offer important dialectical concepts for the critique of
social phenomena like law, but both in different ways surrender them through
recourse to ethical standpoints which marginalise the significance of analysing law
as a social and political phenomenon. Bhaskar’s dialectical critical realism is pre-
sented as a way through the resulting impasses, specifically by virtue of his dialecti-
cal and sociological concept of ‘entity relationism’. This is contrasted with the
analytical concept of ‘identity thinking’ which lies at the heart of law and the idea of
the legal subject.
The article concludes by outlining how a dialectical approach can elucidate prob-
lems of subjectivity and responsibility in the criminal law. It contrasts formal legal
conceptions of the subject, which seek to exclude relational issues, with moral
SOCIAL &LEGAL STUDIES 0964 6639 (200003) 9:1 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(1), 85–113; 011674
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conceptions in and beyond the law, which open out to the subject’s relationality. Legal
reasoning is located on this contradictory dialectical ‘edge’ and suffers accordingly.
THE GAP BETWEEN CRITICAL AND SOCIO-LEGAL STUDIES
THIS ARTICLE is concerned with the relationship between broadly
sociological approaches to law, with an emphasis on social and his-
torical processes, and critical or ‘cultural’ approaches, with an empha-
sis on ethical interpretation. Nicola Lacey (1996: 143) has suggested that there
is a ‘seemingly unbridgeable gap’ between critical legal theory and socio-legal
studies, which she attributes to the narrow and pragmatic horizons of the
latter. There is a question, however, as to whether the relationship is not also
imperilled on the other side, by the way in which critical legal theory deals
with sociological issues. The question is starkly raised in Jacques Derrida’s
influential essay ‘Force of Law’ (Derrida, 1990), where he describes a ‘cri-
tique of law’ that is ‘possible and always useful’, involving ‘a critique of
juridical ideology, a desedimentation of the superstructures of law that both
hide and reflect the economic and political interests of the dominant forms
of society’ (Derrida, 1990: 941). Useful it may be, but Derrida leaves this
‘sociological’ critique well alone in favour of his pursuit of a ‘more intrinsic
structure’ which involves the ‘very emergence of justice and law’ in a ‘per-
formative and therefore interpretive violence’ (1990: 941). This deeper cri-
tique is ethical rather than socio-historical in its form.
The distinction represents a clear and, given the importance of its author,
emblematic break for critical legal studies. This is not just because Derrida
says so little about the first (sociological) critique, but because the elabora-
tion of the second ethical critique proves perfectly possible without reference
to it. As a consequence the ethical critique operates not with the ‘desedi-
mentation of the superstructures of law’ but, whatever the underlying inten-
tion, against it: the sociological critique is marginalised in ‘Force of Law’. It
could be that this is just a matter of the content of one essay, and certainly it
is not the case that all those who have been influenced by deconstruction have
as a result renounced the examination of the social and historical forces which
inform the law. Still, it can be denied neither that deconstruction has licensed
work of an abstract ethical kind, nor that Derrida’s work has been extremely
influential in critical legal studies.1I would suggest that there is a theoretical
issue within the deconstructive enterprise that ought to be analysed so that
we can better understand the gap between the ‘social’ and the ‘cultural’ or
‘ethical’ critique of law.
This article accordingly reflects upon the bifurcation of critical routes in
‘Force of Law’ from the point of view of an interest in what deconstruction
means and does and a concern as to where it leads. Why not simply discard
Derrida? Here I should acknowledge my own strong ambivalence to the
theory. For reasons that will become clear, Derrida’s ‘foundational act of vio-
lence’ leaves me unmoved, yet I believe that deconstruction remains extremely
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