The Wisdom of Hindsight: Theorizing Progressive Legal Practice in the 21St Century
| Date | 01 September 2002 |
| Published date | 01 September 2002 |
| Author | Maureen Cain |
| DOI | 10.1177/096466390201100305 |
| Subject Matter | Articles |
THEORIZING PROGRESSIVE
LEGAL PRACTICE IN THE 21ST
CENTURY
MAUREEN CAIN
University of Birmingham, UK
AN ONTOLOGICAL AND POLITICAL JOURNEY
TO SAYthat re-reading Imageswas a nostalgic experience is too simple.
True in those glory days when we asked how rather than whether to
empower the poor, rebuild the social order, change the world even,
talk of fighting an election such as that of 2000, on which remnants of the
public services to privatize, would have been beyond conception. I had
forgotten, ’til I re-read Images, just how much of a consensus there was 25
years ago, at least about what we ought to be trying to do. So there is a lot
of bitter in the sweet. For me there was also that review (Cain, 1976) to re-
read; a task I approached with considerable trepidation, expecting embar-
rassment because I had been reminded that it was ‘bad’, unfraternal we might
have called it before we knew about sexist language. But when I turned to it
I rather envied the intellectual self-confidence of the young woman who
wrote it, and her analysis wasn’t that bad either. Intellectual history, however,
has been kinder – and with some justification – to Ban´kowski and
Mungham’s loosely articulated gestalt than to the marxist analysis that I
offered. But in important senses we now have the conceptual capacity to go
beyond both. Three of the formulations from Images that concerned me in
the review were: (1) pegging the analysis to people rather than to positions
or structures; (2) the use of power as a personal rather than a relational
attribute; and (3) the undertheorization of poverty. In past marxist (Stones,
1996) and past postmodern theorizing1 I think we can address these issues in
a better way then either Zen ’n Geoff or 1970s marxism, which is perhaps
why modern ‘cause lawyers’, in their quiet way, are beginning to make a
difference both locally and on a wider scale.
SOCIAL & LEGAL STUDIES 0964 6639 (200209) 11:3 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(3), 375–386; 027068
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SOCIAL & LEGAL STUDIES 11(3)
In this article I first discuss past marxist/past postmodern ontologies, then
the ontology of Images; next I consider people, power and poverty; and
finally, if rather briefly, I honour my promise to consider progressive legal
practice in the light of these newer understandings.
ONTOLOGICAL CONSIDERATIONS
Stones (1996) coins the term ‘past marxist’ for his version of ‘new realism’ in
sociology. The method is also perhaps, past Foucauldian, for as I attempt to
formulate it here, the ideational ontology is his, whereas the relational
ontology is past marxist.
To start, in contemporary fashion, with ideas: Foucauldian ontology posits
a radical autonomy for ideas, which Foucault materializes as discourses. This
autonomy has two facets. Discourses have no origin (Foucault, 1972: 44–5):
they are absolutely uncaused: not by antecedent discourses, neither by their
authors’ subjectivities, nor by the relational structures in which their authors
or spokespeople are embedded. Discourses, as Bourdieu and Passeron
(1970/1977: xi) later put it, are arbitrary. To repeat, according to Foucault
discourses cannot be explained by their ‘origin’. Herein lies his absolute
break with marxism, even – or perhaps especially – with the version advo-
cated by his teacher Louis Althusser. Althusser notoriously struggled to
retain a last instance determination by the economy when all his creative and
sophisticated discussion of the materiality of ideology had led to an opposite
conclusion (Althusser, 1970, 1971). For Foucault there is no ultimate cause.
In the second place, and more familiarly, discourses are autonomous
because their power is integral; power is inherent to the discourse, not depen-
dent on the power of the elaborator, spokesperson or audience. Discursive
power is positive and constitutive of forms of being and socializing, most
obviously the Derridean power to separate, divide and exclude (Derrida,
1967/1976). Such power cannot be given up, only made visible by the
processes of deconstruction leading to new alignments of discursive power.
This ontology of ideation, symbol, and indeed reality is as old as Images
itself, although it did not achieve hegemony until, perhaps, the 1990s.
Within law, and within ‘sociolegal studies’, as within much feminist work,
the conception of discourse as material, autonomous and powerful trans-
formed the approach of critical academia. Marxism and all totalizing grand
theories were deemed dead, terrorist (Lyotard, 1979/1984), masculinist and
authoritarian (Stanley and Wise, 1983). Here now was a theory in which all
voices counted as one, the dispossessed could be heard, the ability to
persuade was set free from its relational/structural moorings, and the sinister
discursive strategies of legal and official draftspeople could be revealed. In
law and sociolegal studies few clung to the old theories (which were extra-
legal in any event). Postmodernism, as the new idealism came to be called,
could be rivalled only by commonsense ontologies, which were of course
inadequate for the task. Discourse became the only uncontested ontological
CAIN: PROGRESSIVE LEGAL PRACTICE
377
reality, the prime cause of all relational patterns and events – as, indeed,
Derrida (but not Foucault) had argued.2
Meanwhile, in the UK, social studies of legal matters were being insti-
tutionalized in law schools or, the converse being the more important point,
outside of political science or even sociology departments. Sociolegal studies
were largely cut off from the tradition of critical and later feminist method-
ology which engaged social scientists from the 1960s to the 1980s and
beyond.
For sociology, however, while the autonomy (in both senses) of discourse
could be accepted as a clear advance, the ontological imperialism of discourse
posed both a serious challenge, and a political opportunity. The political
opportunity was that of moving beyond the internecine rivalry between,
archetypally, ethnomethodologists and neo-Marxists, analysts of talk and
analysts of structures and, later, feminist methodologists and masculinist
methodologists. The achievement of critical mass by women in academic
sociology in the UK and their reflexively informed use of this position
helped. So too did the war weariness of many departments. The outcome of
these various pressures was that in British sociology postmodernism was
adopted, but without achieving hegemony. Discourse analysis became main-
stream (although for other reasons feminism did not).
So much for the political opportunity. The serious challenge came in two
forms. First, the object of study of sociology, the raison d’être of the disci-
pline, the fundamental concept, is the social relationship. What sociologists
do for a living is arrange these theoretically conceived objects into patterns.
This would become a secondary and contingent, or even a meaningless,
activity if relationships were to be conceived ontologically as an effect of
discourses. The second challenge for sociology is that the relationship has
been such a taken-for-granted foundation that analysis of its ontological
implications and justifications have moved rather little beyond Marxist and
Durkheimian emphases on the irreducibility of the social – and the social
could as well be an utterance as a relationship. Sociology,...
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