The critic's love of the law: Intimate observations on an insuear jurisdiction

Law and Critique

Volumn 10, Issue 3, 1999, Pages 343-360

  Goodrich, Peter ^a  

^a YESHIVA UNIVERSITY   (United States)

Author keywords

Farewell to England; Instability; Invective; Narcissism; Nihilism; Pay rises; Status obsessions

Indexed keywords

EID: 0038075143     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1008979105196     Document Type: Article

References (72)

1. See G. Teubner, "The king's many bodies: The self-deconstruction of law's hierarchy", Law and Society Review 31 (1997), 763, at 773:
2. "The postmodern mind is trapped in a fetishistic relation to the deconstructed thing which makes it impossible for it to suffer the loss of this thing and stops it from getting rid of this beloved object and making the liberating move beyond". The step beyond that Teubner advocates is a step into the real, into "hard-core" social reality and so also into the unknown. For a critical reading of this residually hegelian thesis,
3. see P. Goodrich, "Anti-Teubner: Autopoiesis, Paradox, and the Theory of Law", Social Epistemology 13 (1999), 197.
4. The characteristics I detail are certainly not exclusively English. Many are shared with or borrowed from other British jurisdictions, and some derive from US critical legal studies. I have discussed many of those similarities and differences elsewhere and wish to retain the local designation of Englishness simply so as not unnecessarily to tar other political contexts and institutional traditions with the projection of my own culture and precarious nationality.
5. See P. Goodrich, "Critical Legal Studies in England: Prospective Histories", Oxford Journal of Legal Studies 12 (1992), 195.
6. Those with long memories will recollect the sadly missed Viki Fisher remarking at the opening English critical legal conference that what distinguished the critical legal conference from feminist legal studies was that the former had no political object or cause. Critique was not about anything other than critique, a circularity that would likely please the hegelians but upset the materialists who then dominated the conference.
7. Z. Bankowski and Geoff Mungham, Images of Law (London: Routledge, 1976), pp. 24-30.
8. That the absent face is represented by a white space also has a significance. While this theme will only be addressed incidentally in this essay, it is worth remarking that critical legal studies in England only belatedly acknowledged critical race theory, and even then it was in the form of postcolonial studies rather any more direct attempt to come to terms with the play of racism in the law school and in teaching relationships.
9. See P. Goodrich and Linda Mills, "Critical Race Theory and the English Eaw School", forthcoming.
10. M. Cain and A. Hunt (eds), Marx and Engels on Law (Eondon: Academic Press, 1978);
11. the only published excerpt from Midgley's thesis is T.S. Midgley, "The Role of Eegal History", British Journal of Law and Society 2 (1975), 153,
12. while the thesis is available on microfilm as T.S. Midgley, The Language of Equality, PhD (1978, University of Edinburgh);
13. P. Hirst, On Law and Ideology (Eondon: Macmillan, 1979);
14. P. Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (Eondon: Macmillan, 1987).
15. C. Douzinas and R. Warrington with S. McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (Eondon: Routledge, 1991). As the subtitle suggests, the authors were much closer to law than might have been supposed of early left postmodernist positions. It was not so much the end of law that the authors postulated but rather the inauguration of an era of their own law that was to be desired if not immediately legislated.
16. I refer here to the fact that the chapter was presented first as a performance at the 1987 Newcastle critical legal conference. The performance outraged the marxist wing of this early critical legal conference, and their disdain for theory performed in such proximity to unemployment and working class distress continued for several years to come.
17. G. Rubin and D. Sugarman (eds), Law, Economy and Society 1750-1914 (Abingdon: Professional Books, 1984),
18. and especially Sugarman's contribution. See also D. Sugarman (ed), Legality, Ideology and the State (London: Academic Press, 1983).
19. Joanne Conaghan and Wade Mansell, The Wrongs of Tort (London: Pluto Press, 1993).
20. Another impressively engaged example, at least at the level of doctrine, was Conaghan, "Critcal Labour Law: The American Contribution", Journal of Law and Society 14(1987), 334.
21. Nicola Lacey, Celia Wells, Dirk Meure, Reconstructing Criminal Law: Critical Perspectives in Crime and Criminal Process (London: Weidenfeld and Nicolson, 1990).
22. Anne Bottomley and Joanne Conaghan (eds), Feminist Theory and Legal Strategy (Oxford: Blackwell, 1993);
23. Anne Bottomley (ed.), Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish, 1996).
24. W.T. Murphy and R. Rawlings, "After the Ancien Regime: The Writing of Judgments in the House of Lords, 1979/80", Modern Law Review AA (1981), 617;
25. Murphy, The Oldest Social Science?: Configurations of Law and Modernity (Oxford: Oxford University Press, 1997).
26. For interesting comments on criticism in this vein, see Giorgio Agamben, The Man Without Content (Stanford: Stanford University Press, 1999), ch. 5.
27. Mark Tushnet, "Critical Legal Studies: A Political History", Yale Law Journal 100 (1991), 1515.
28. Paul Hirst and Phil Jones, "The Critical Resources of Established Jurisprudence", Journal of Law and Society 21 (1987), 41.
29. Zen Bankowski, "Anarchism, Marxism, and the Rule of Law", in D. Sugarman (ed), Legality, Ideology and the State (1983).
30. Alan Hunt, "The Theory of Critical Legal Studies", Oxford Journal of Legal Studies 6(1986), 1.
31. A. Hunt, "The Big Fear: Law Confronts Postmodernism", McGill Law Journal 35 (1990), 507.
32. A. Hunt (ed), Critical Perspectives on Ronald Dworkin (Oxford: Berg, 1988);
33. and A. Hunt, "Jurisprudence, Philosophy and Legal Lducation: Against Foundationalism. A Response to Neil MacCormick", Legal Studies 6 (1986), 292,
34. responding for no immediately apparent reason to MacCormick, "The Democratic Intellect and the Law", Legal Studies 5 (1985), 172.
35. It should also be noted that in A. Hunt, "The Critique of Law: What is 'Critical' about Critique", Journal of Law and Society 14 (1987), 5, Hunt concludes in no more urgent terms than: "I have urged that the critical school cannot avoid the challenge of elaborating a distinctive theory of law."
36. Murphy, "Memorising Politics of Ancient History", Modern Law Review 50 (1984), 384.
37. Murphy, "The Style of the Critic", Law and Critique 4 (1993), 125.
38. In The Times Higher Education Supplement, September 1991.
39. Kramer, Review, Modern Law Review 62 (1999), 314.
40. Kramer, Review, Cambridge Law Journal 58 (1999), 222.
41. Kramer, Review, Cambridge Law Journal 58 (1999), 437.
42. Kramer, Review, Cambridge Law Journal 57 (1998), 612.
43. Kramer's style of acerbic and in some instances racist dismissal of colleagues perhaps simply follows and develops that of his mentor and patron at Cambridge University, Nigel Simmonds, whose senescence is in danger of being characterised by vague and vitriolic aspersions directed towards those who do not share his analytic outlooks, as, for example, Simmonds, Review, Cambridge Law Journal 58 (1998), 611 referring to one colleague as "ignorant", and stating that the work of "critics" "actually makes very little sense". The appropriate response to Simmonds is probably an adaptation of Nabokov's review of Sartre's Nausea: any fool can make a text non-sensical, it takes talent and art to construct something meaningful from it. As to Kramer, the passages cited speak amply for themselves: tu quoque Matthaeus .
44. Bernard Jackson, Review, Legal Studies 8 (1988), 125.
45. See also, Peter Rush, "Semiotics in the Trial of Jurisprudence", Modern Law Review 53 (1990), 121 at 127,
46. who elegantly picks up on this theme and notes of Bernard Jackson's later work Law, Fact and Narrative Coherence (Merseyside: Deborah Charles, 1988) that "threaded throughout the book.,. is a response to reviewers who were not 'sympathetic' to Jackson's previous work, reviewers who are largely identified here as emanating from and playing in the band of critical legal scholars."
47. Peter Fitzpatrick, The Mythology of Law (London: Routledge, 1995).
48. P. Goodrich, Legal Discourse (1987).
49. Respectively, P. Goodrich, "Antinomies of Legal Theory", Legal Studies 4 (1984), 1;
50. Review, Modern Law Review 50 (1987), 117 - reviewing Bernard Jackson's Semiotics and Legal Theory; '
51. Simulation and the Semiotics of Law', Textual Practice 2 (1988), 181 (reviewing B.S. Jackson);
52. "Twining's Tower: Metaphors of Distance and Histories of the Lnglish Law School", Miami Law Review 45 (1995), 901;
53. "Sleeping with the Lnemy: An Lssay on the Politics of Critical Legal Studies in America", New York University Law Review 68 (1992), 389;
54. "Anti-Teubner: Paradox, Autopoiesis and the Theory of Law", Social Epistemology 13 (1999), 197;
55. "Dr Duxbury's Cure: Or, A Note on Legal Historiography", Cardozo Law Review 15 (1993), 1567. I believed that these scholars were established and successful enough to take critique in the spirit of constructive selfreflection. No doubt, however, there was also a degree of Oedipal acting out involved in these interventions (as we called them then). Nor were the responses, save in the case of Teubner, particularly amicable, though in good British fashion, where Brits were concerned, the animosity generated was acted out in the main in institutional rather than published forms, in (private) reviews of proposals or manuscripts for publishers, for example, rather in more direct forms of polemic.
56. Beverley Brown, "Women and Crime: The Dark Figures of Criminology", Economy and Society 15 (1986), 355;
57. Brown, Review, Journal of Law and Society 13 (1986), 433,
58. and Journal of Law and Society 16 (1989), 512.
59. Suzie Gibson, "The Structure of the Veil", Modern Law Review 89 (1989), 420,
60. Suzie Gibson, "The Discourse of Sex/War", Feminist Legal Studies 1 (1994), 179,
61. Anne Bottomley, Suzie Gibson and Belinda Metyard, "Dworkin: Which Dworkin? Taking Feminism Seriously", Journal of Law and Society 14 (1987), 47.
62. 34The most striking examples of disapproval were directed at Douzinas and Warrington with McVeigh who made a mildly theatrical presentation of what was to become the final chapter of Postmodern Jurisprudence at the Newcastle critical legal conference in 1987, and at Peter Rush's delivery of a paper by means of a tape recorder which played to the audience while he alternately sat silently staring at the auditors or with his back to them. This kind of theory, to the ascetics, was simple 'onanism' adrift from the 'real world' and out of place in the context of a working class city in recession. On that latter performance, see Peter Rush, "Killing me Softly with his Words: Hunting the Law Student", Law and Critique 1 (1990), 21.
63. This was in many respects a uniquely English feature of critical legal studies. In the United States, trashing and obsessive academic attention to US Supreme Court decisions meant that US critical legal studies had a much more realistic if not necessarily realist focus.
64. See, for example, Tim Murphy's telling critique of the dilettantism of the use of Habermas within English legal scholarhip: "The Habermas Effect: Critical Theory and Academic Eaw", Current Legal Problems 42 (1989), 135.
65. With the specific intention of being invidious, if only in a footnote, the career path of the critical legal scholars in the main took the trajectory of flight from what were then the polytechnics (which were, at least in origin, socialist institutions) to established university law schools of ever higher status. While this advancement might be taken to reflect the somewhat paradoxical recognition of their scholarship, it also reflected the scholar's own practical and political imperatives. Thus, for example, Alan Hunt moved from Middlesex Polytechnic to a chair at Carlton University in Canada, David Sugarman also moved from there to become Professor and Head of Department at Eancaster University EawSchool, Costas Douzinas moved from Middlesex Polytechnic to Lancaster University and then to Birkbeck College, University of London. Peter Goodrich moved from Liverpool Polytechnic to Newcastle University and then to Cardozo Law School in New York, via Birkbeck College. Susie Gibson moved from Middlesex Polytechnic to Oxford University, Anne Bottomley to Kent Law School, Alan Norrie to King's College, London; and more marginally Niki Lacey could hardly be seen for the dust thrown up by her rapid departure from Birkbeck College to the LSL. The trajectory outlined could either mean that critical legal studies took over the institution or that the institution co-opted critique. There is little doubt that, whatever the incidental gains in terms of mondanity or theoretical style, the latter has been the overwhelming experience both in the US and in Lngland.
66. The source of this call for and of the other is the philosopher Emanuel Levinas, via Derrida's essay "Force of Law: The Mystical Foundation of Authority", in Cornell, Rosenfeld and Carlson (eds), Deconstruction and the Possibility of Justice (New York: Routledge, 1992).
67. For examples of that genealogy of reception, see C. Douzinas and R. Warrington, Justice Miscarried. Ethics, Aesthetics and the Law (Hemel Hempstead: Harvester, 1994), 7-18, 176-185, and passim.
68. For different readings, see further, M. Diamantides, "Ethics in Law: Death Marks on a 'Still Life' ", Law and Critique 6 (1995), 209;
69. Elena Loizidou, "Sex @ the End of the Twentieth Century", Law and Critique 10 (1999), 71.
70. Julia Rristeva, Tales of Love (New York: Columbia University Press, 1987), 15:
71. "If it lives your psyche is in love. If it is not in love, it is dead. 'Death lives a human life', Hegel said. That is true whenever we are not in love or not in analysis."
72. See bell hooks, Teaching to Transgress (New York: Routledge, 1996) for elaborations of some potentially radical positions on the teaching relationship. Speaking from my own experience at Birkbeck, there was always a certain level of apathy or disinterest in the project of rethinking pedagogy. Retreats devoted to discussing the possibility of radicalising teaching methods or the content of the curriculum simply reinforced the resistance to self-analysis and exposed the pervasive lack of any emotional tools or language with which to address the difficult and intimate collective issues of teaching relationships.