Getting Public Law Back into a Critical Condition: The Rule of Law as a Source for Immanent Critique
| Published date | 01 December 1999 |
| Author | Geoff Pearson,Michael Salter |
| Date | 01 December 1999 |
| DOI | 10.1177/a010359 |
| Subject Matter | Articles |
GETTING PUBLIC LAW BACK
INTO A CRITICAL CONDITION:
THE RULE OF LAW AS A SOURCE
FOR IMMANENT CRITIQUE
GEOFF PEARSON
Liverpool University, UK
AND
MICHAEL SALTER
Lancaster University, UK
ABSTRACT
This article explores a series of issues that arise in relation to the methodology of con-
ducting a critique of legal ideologies. It addresses the attempt by the Sheffield School
of public law to formulate and apply an ‘immanent’ model of critique that builds upon
the position developed by the Frankfurt School of critical social theory. We address
difficulties that arise with the Sheffield School’s interpretation of this model of cri-
tique, not least the problems with its attempt to apply a clear-cut distinction between
wholly internal, immanent and external modes of critique. Our overall aim is to for-
mulate a more adequate model of ideology critique that is able to overcome the
various difficulties we have discovered within the Sheffield School’s model. We argue
that this can be achieved without relapsing back into the no less serious contradictions
which can arise with external modes of critique. These merely superimpose ready-
made criteria of assessment upon the object of their analysis, without first establish-
ing their appropriateness.
INTRODUCTION
MANY EXISTINGconstitutional arrangements, ranging from the
monarchy to the rule of law, have been subjected to all manner of
critical reflections by public lawyers and others (Dezalay and
Garth, 1997; Thompson, 1977). Yet rarely has either the underlying method-
ology of critique, or the source of critique’s own underlying values, been
SOCIAL & LEGAL STUDIES 0964 6639 (199912) 8:4 Copyright © 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(4), 483–508; 010359
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SOCIAL & LEGAL STUDIES 8(4)
addressed as a distinct topic for legal analysis. Neglect of such methodologi-
cal issues by otherwise critical scholars raises an important question: namely,
how can an unreflexive application of a methodology of critique, whose epis-
temology, ontology and criteria of evaluation lack both clarity and self-con-
scious internal development, ever reliably generate viable conclusions? This
article aims to respond to this methodological deficit by developing, over a
series of incremental stages, an improved approach to the critique of legal
ideologies. The overall goal is to enhance the degree of methodological reflex-
ivity within those branches of legal studies for whom the critique of ideolo-
gies, of any kind, forms an important part of their overall agenda.
We pursue this goal by discussing both the distinctive nature and the
overall viability of a substantially revised version of ‘immanent criticism’. In
one sense, our entire article represents an attempt to clarify the meaning,
stages and rationale of immanent critique. However, providing a preliminary
and provisional ‘definition’ of such critique may help set the scene, and avoid
some possible misunderstandings, even though no definition can ever really
‘fix’ its object from the start and throughout. Immanent critique can be pro-
visionally defined as the effort to turn the normative standards that a legal
ideology employs back upon the institutional procedures and actions which
are supposed to embody these standards. This recoil can involve taking a
measure promising ‘equal’ rights ‘at its word’ even, or rather especially, where
the underlying institutional intention was never to fully realise this ideal for
every category of citizen. It is the normative claims, presuppositions and
implications of ideological legitimations that are turned back upon empirical
practices, not the ‘intentions’ of legislators. The initial goal of this phase of
immanent critique is to disrupt and challenge the operation of legal ideolo-
gies by identifying some degree of ‘shortfall’ between what is being promised
on the one hand, and that which is actually being practised on the other.
It is important to emphasise that the main reason why the critique of legal
ideologies needs to adopt a distinctly ‘immanent’ form can only be fully
appreciated once those limitations and internal contradictions, which stem
from the application of ‘external’ forms of evaluation, have been adequately
grasped. However, it must also be stressed from the outset that the distinc-
tion between ‘immanent’ and ‘external’ modes of critique becomes difficult
to sustain wherever it is set up as a clear-cut and fixed binary opposition, from
which all sense of contingency and mediation have been expelled. Taken
together, these two points are crucial in explaining why it is that the present
authors seek to develop a more viable type of immanent critique as a diag-
nosis of, and a partial remedy for, those contradictions affecting predomi-
nantly external modes of criticism.
A provisional definition of an ‘external’ form of critique would identify it
as a form of engagement that superimposes the normative standards of the
legal scholar upon the ‘target’ of legal critique, and then assesses this target
by the extent to which it conforms to these criteria. Such critique fails to
demonstrate that its normative standards represent appropriate criteria for
judgement. Yet – at the same time – we cannot assume, even at the start of
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our investigations, that any type of critique of legal ideologies can ever be
either exclusively ‘external’ or ‘internal’ in nature, at least not in any precise
sense of these terms. In assessing, for example, a social scientific analysis of
how gender assumptions have shaped judicial decision making in disputes
over the family home, it may be possible for the critic neither to adopt cri-
teria that are entirely ‘external’ to such gender assumptions; nor to entirely
neutralise his/her own everyday reactions to such stereotyping. The point
here is that scholars need to develop a more nuanced and qualified position
regarding the basic qualitative distinctions upon which the practice of cri-
tique rests. The justification for such a revised position will be further
addressed later in this article. Such qualifications may allow us to both accept,
and then learn important lessons from, the limitations of utopian forms of
external critique based upon extrinsic criteria whose normative grounding is
problematic.
In developing our argument over a series of distinct incremental stages, we
intend not only to discuss, but also to move one stage beyond, the particular
version of immanent critique that is found within the ‘Sheffield School’ of
public law. In so doing, we will be analysing the writings of this school not
only as the ‘target’ for our revised approach, but also as a foil against which
to develop a more adequate methodology for the critique of legal ideologies.
Since the early 1980s, the ‘Sheffield School’ has claimed to both embody
and employ the methodology of immanent critique. A contestable version of
such critique is found within the writings of Ian Harden, Norman Lewis,
Cosmo Graham and Tony Prosser, but was set out most explicitly in Harden
and Lewis’s The Noble Lie (1986: 10–12, 17, 42, 73, 81, 86, 111, 199, 252, 261,
290). This school’s critical reflection on the social significance and political
implications of the rule of law within Britain provides the focus for this
article. It has made the most systematic use of one questionable version of
immanent criticism in its analysis of the contemporary implications of a con-
sistent application of the rule of law (and associated values of ‘accountability’
and ‘equal rights’). As a result, both the claims and limitations of their model
of immanent critique should, in principle, provide a ‘running example’
capable of illustrating a series of issues that arise with respect to both the
nature and limits of such critique. However, it does not follow from this that
our own reformulated version of immanent critique, which has emerged from
such reflections, has no general implications for critical scholarship in con-
texts less ‘parochial’ than English public law.
As noted already, immanent critique involves the evaluation of the claims
and self-image of any legal perspective by reference to the very standards to
which it must appeal in order to secure its own legitimacy. It follows that this
article must also question whether the Sheffield School has, in reality, hon-
oured its own claims within the field of public law to have provided an
authentic model of such critique. The reflexive point here is that those who
claim to be applying immanent critique must necessarily open themselves up
to a rigorous process of self-criticism. Hence, the present authors must avoid
the internal contradiction that would result from any uncritical exposition of
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SOCIAL & LEGAL STUDIES 8(4)
one of the Sheffield School’s main claims. That is, its claim to have both elu-
cidated and then faithfully applied an authentic model of immanent critique
rooted firmly within the dialectical social theory tradition of the Frankfurt
School (Harden and Lewis, 1986: 10).
For Harden and Lewis, the critical project within public law involves an
effort to enforce the general ideal of maximal ‘accountability’ of those in
positions of authority. Hence, such people must provide an explicit justifi-
cation for the continued existence of their current practices. This would-be
justification must itself be...
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