The Question Concerning Law
| DOI | http://doi.org/10.1111/1468-2230.6605007 |
| Date | 01 September 2003 |
| Published date | 01 September 2003 |
REVIEW ARTICLE
The Question Concerning Law
Oscar Guardiola-Rivera
Brian Z. Tamanaha,A General Jurisprudence of Law and Society, Oxford: Oxford
University Press, 2001, 284 pp, hb d45.00.
At dawn
Soon it will be too late.
1
Some years from now, when the history of late-modern
jurisprudence comes to be written, the failure of our attempts to develop a general
explanation of the relationship between the essence of law and society will, no
doubt, occupy a central place. Indeed, the history of late-modern legal theory will
point out that the urge to examine the relation between the local and the global –
the particular and the general – was part of an agenda linking analytical legal
theory with territorialisation – the continuous (re)drawing of boundaries – much
in the way anthropology once related to area studies. An agenda which survived
long after this early analytical impulse was fused with empirical descriptivism and
cultural studies, ultimately in the form of a thin functionalism of law as ordering,
normalisation and the quest for a core concept of law.
Some will observe that the project of relating the general and the particular from
singular perspectives – globalisation and cosmopolitanism – signals a desire ‘to
find shelter or a sense of belonging in a heartless and indifferent world’,
2
and thus
pertains to an epoch of Heideggerian Unheimlich. Hence the substantivist claim to
a community of principle, one that is founded in difference (cultural or
interpretative) as a regulative ideal – like global law or human rights – but
never exceeds the form of a liberal polity of mores.
3
Visiting scholar, Faculty of Laws, University College London.
1 With apologies to J. G. Ballard, whose standpoint, that of apocalyptic literature, awareness for
the present and the demand for action – also shared by Walter Benjamin – sets the critical tone
of this essay.
2 H. Harootunian, ‘Quartering the Millenium’ (2002) Radical Philosophy 22.
3 This is true, particularly, in the tradition that goes from Lauterpacht to Dworkin. On their
striking similarities see M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870– 1960 (Cambridge: Cambridge University Press, 2001) 369. To my
knowledge, nobody has observed that the figure of Hercules, central to both Lauterpacht and
Dworkin, was favoured by the classically educated architects of the new ‘nomos’ appearing in the
Atlantic colonial circuit in the sixteenth century as a symbol of power and order. Hercules was the
unifier of a centralised territorial state and at the same time a symbol of vast imperial ambition. In
1776, president John Adams proposed that ‘The Judgement of Hercules’ be the seal for the new
United States of America. The hero represented progress. In Dworkin it represents the question of
the unity and integrity of the legal-political space (to this day he continues to argue that the point
of political philosophy is to provide the justification for the monopoly of the use of force by the
state), but the other resonances are also present: his seminal book is called Law’s Empire. That of
Lauterpacht The Function of Law in the International Community. In the sixteenth century
Hercules soon found his opponent: the many-headed Hydra, symbol of disorder and resistance to
state, empire and capitalism.
rThe Modern Law Review Limited 2003. (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
792
Others will suggest that the society/law relation which was the object of the
generalist project merely re-enacted the more classical distinction between nature
and convention. It was thus assumed, these others will say, that the ends which
law served were permanent features of the constitution of man’s life. Law was then
thought to be neutral since it did not alter the natural ends of man in society but
merely shortened the path to them. This neutralisation of law, finally achieved in
the years following the publication of H. L. A. Hart’s The Concept of Law,
removed the question concerning law from political antagonism just when
political antagonism was at its highest.
Indeed, underlying the trans-national utopia of a global concept of law ‘lurks
the unfinished business that once had driven postcolonial discourse to close off
sharply the memory of earlier debates directly related to the political and social
projects prompted by decolonisation and foreclose the ‘‘very grain of politics’’ –
which today’s culturalism suppresses’.
4
In an important note to the passage just
quoted, the author refers to works by Aijaz Ahmad and Neil Larsen which
recount the retreat from the nation-state after decolonisation.
5
The reference is
pertinent: during the period extending from the Hart/Dworkin debate to the
publication of William Twining’s Globalisation and Legal Theory,
6
there is a
tendency to abandon the nation-state as a site of theoretical and political
groundwork; such a tendency goes hand in hand with the use of strategies of
thought ranging from conceptual analysis to postmodernism
7
and anti-founda-
tionalist pragmatism.
8
However, whereas this move can be understood in the work of Twining and
Santos as showing an openness to the wider world, in Brian Z. Tamanaha’s
A General Jurisprudence of Law and Society
9
it closes the circle. In the wake of the
attempt to repress the memory of a lost vocation, that of the surplus value of the
power of the nation-state, his turn towards social constructionism and
conventionalism reflects, in Harry Harootunian’s words, an:
immense disappointment with if not a disavowal of, precisely those political and social
projects embraced by new nation-states as they tried to grapple with and overcome the
consequences of a colonial past in the moment of decolonization. Here an elastic culturalism
has managed to further depoliticize what once were extraordinarily invested political
movements which, through [the accumulation of] violence, aimed to establish new cultural
formations capable of mirroring these decolonized political programmes.
10
Decolonisation and/or coming to terms with colonisation, a process which is akin
to the cure of a possessed body among tribal societies and which thus inevitably
includes adoption and adaptation just as much as separation, was in any case a
world-opening event. That is, an instance of people becoming aware of the way
they were classified (by way of legal ideas that were part of a wider matrix or social
4 See n 2 above, 22–23.
5 A. Ahmad, ‘Postcolonialism: What’s in a Name?’ in R. de la Campa and E. A. Kaplan (eds), Late
Imperial Culture (London: Verso, 1995); N. Larsen, Determinations: Essays on Theory, Narrative
and the Nation in the Americas (London: Verso, 2001).
6 W. Twining, Globalisation and Legal Theory (London: Butterworths, 2000).
7 As in the case of Boaventura de Sousa Santos. See his Toward a New Legal Common Sense
(London: Butterworths, 2002).
8 B. Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford:
Clarendon Press, 1999).
9 B. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press,
2001) (hereinafter, Tamanaha).
10 See n 2 above, 23.
The Question Concerning LawSeptember 2003]
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