Intellection and Indiscipline
| Author | Peter Goodrich |
| Date | 01 December 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00479.x |
| Published date | 01 December 2009 |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 4, DECEMBER 2009
ISSN: 0263-323X, pp. 460±80
Intellection and Indiscipline
Peter Goodrich*
A discipline will usually become the object of study and its relationship
to other disciplines a moment of concern when its borders are pre-
carious and its definition in dispute. Law, `the oldest social science', is
arguably both prior to discipline ± it emerges initially and most
forcefully as a practice ± and without discipline, its object being
potentially all human behaviour. If law is necessarily between and
among disciplines, both prone to moonlighting and everywhere home-
less, it will also always be in some mode of scholarly crisis. Certain
conclusions follow. Law is paradoxical ly dependent upon other
disciplines for its access to the domains that it regulates. The greater
its epistemic dependency, however, the slighter its political ack-
nowledgment of that subordination. Which allows a positive thesis: the
epistemic drift of law can carry the discipline to a frank acknowledg-
ment of the value of indiscipline both to novelty and intellection.
... there's some corner of a foreign field
That is for ever England. There shall be
In that rich earth a richer dust concealed;
A dust whom England bore, shaped, made aware . . .
(Rupert Brooke)
The mapping of a discipline is both an historical and a theoretical project.
When the discipline in question is law and so itself quintessentially
disciplinary and disciplining, a reality conferring enterprise, then the project
is more complex still.
1
Viewed over the longue dure
Âe,associal structure, as
460
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Cardozo School of Law, Yeshiva University, Brookdale Center, 55 Fifth
Avenue, New York, NY 10003, United States of America
goodrich@yu.edu
My thanks to Phil Thomas for his enthusiasm, to Christopher Tomlins for candid and
incisive comments, as well as to David Campbell, Chuck Yablon, and Alain Supiot for
discussion of the themes of this paper. Thanks too to Geoffrey Samuel for sharing his
work and for his tolerance, and finally to Linda Mills for grounding my thesis and
challenging my method.
1 For a recent discussion of the juristic invention of the real, see B. Edelman, Quand les
juristes inventent le re
Âel. La fabulation juridique (2007).
defining the trinity of persons, things, and actions as also institutions and
norms, law has played a coercive role in relation both to what counts as
knowledge and with respect to the hierarchy of disciplines. In claiming to
speak from the space of truth, in issuing verdicts, in thus promulgating
knowledge that exceeds the vernacular and mundane, law institutes its own
epistemic field ± its jurisdiction ± and in the process potentially negates
those disciplines that lay claim to evaluate the epistemology of legal
judgment. Not much of this is consciously purveyed in the legal texts most
normally encountered but, at common law in particular, is rather unwritten,
tacit, assumed through prior judgments and esoteric codes that allow judges
to claim variously that law is not logic, that law is not in the words but in the
truth, that the half truths of one generation become the norms of another, that
scholarship cannot comprehend the hard law that is case law, that on
occasion black is white, that men are women, that Barcelona is in London, or
that tradition, unwritten custom and use, conscience and good morals are
coeval with and inherently dictate what courts must do. The last vestiges of
serious social speech are arguably in the hands of self-professed fiction
mongers, euphantasists, as they were once called, who make things up, and
sometimes commendably so, to suit their case.
A discipline is a tradition, both transmission and betrayal of the past. The
etymology of the word is instructive, coming from a root meaning of disciple
or follower. The institutions of law are social constructions and what gets
passed on as knowledge of law is equally a product of relationships, events,
and networks of dissemination in the schola or classroom, in seminars and
symposia, in courtrooms and Inns of Court, chambers and council rooms.
2
The discipline controls. It quietly establishes a hierarchy within that reflects
the hierarchy without. The social system divides epistemically into lesser
systems. In law too ± and why should it be any exception? ± groups form, a
hierarchy is ensconced in the new generation, social norms are established,
usually tacitly, and others ± defined by race, class, gender, political or
theoretical affiliation, by lack of credentializing status ± are excluded. The
establishment reconvenes in slightly younger form and the order of juristic
things gains its new mediations, its embodiment and expression, its tokens of
success, its symbols of status, its figures of truth. A new generation takes on
the self-disciplining functions of bureaucracy, and how easily that role seems
to be assumed. It is important to a critical apprehension of the sociology of
knowledge that such networks, movements, schools, trends, and fashions
461
2F.Wacquet, Les Enfants de Socrate. Filiation intellectuelle et transmission du savoir
XVII±XXI sie
Ácle (2008) provides an extraordinary history of the master-disciple
relationship in the academic world. On the conflict between discipline and law, see,
particularly, M. Foucault, Society Must be Defended (2003). For a recent collection of
encounters between and among disciplines, but with law not included, see J. Chandler
and A. Davidson (eds.), The Fate of the Disciplines, published as (2009) 35:4 Critical
Inquiry.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
To continue reading
Request your trial