From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject

Abstract

This article addresses the 'gap' between socio-legal studies and critical legal theory. Examining Derrida's 'Force of Law', it argues that the fault lies as much with the latter's marginalisation of the social and political character of the law as with the former's narrow, policy-oriented character. Despite such marginalisation, deconstructive concepts such as supplementarity and différance are important and ought to be preserved for a critical sociology of law. This becomes possible once Derrida's position is located within the modern dialectical tradition initiated by Hegel and developed by Bhaskar.Both Hegel and Derrida offer important dialectical concepts for the critique of social phenomena like law, but both in different ways surrender them through recourse to ethical standpoints which marginalise the significance of analysing law as a social and political phenomenon. Bhaskar's dialectical critical realism is presented as a way through the resulting impasses, specifically by virtue of his dialectical and sociological concept of 'entity relationism'. This is contrasted with the analytical concept of 'identity thinking' which lies at the heart of law and the idea of the legal subject.The article concludes by outlining how a dialectical approach can elucidate problems of subjectivity and responsibility in the criminal law. It contrasts formal legal conceptions of the subject, which seek to exclude relational issues, with moral SOCIAL & LEGAL STUDIES 0964 6639 (200003) 9:1

Derrida’s Law

“…In Derrida's view, the second, deconstructive approach is the preferred one: it penetrates deeper than the critical approach to the heart of the relation between violence and law. (Fraser, 1991(Fraser, : 1325 In a very similar account from Norrie, given 9 years later in this journal (Norrie, 2000), he too highlights the aforementioned bifurcation:…”

“…In both Fraser's and Norrie's view, Derrida's deconstructive legal theory bifurcates towards an 'intrinsic' critique instead of a critique which would expose the 'superstructures of law that both hide and reflect the economic and political interests of the dominant forces of society' (Derrida, 1990: 941). This distinction is clear throughout their accounts of the meta-ethical critique (Fraser, 1984(Fraser, , 1989(Fraser, , 1991Norrie 2000Norrie , 2003aNorrie , 2003bNorrie , 2005aNorrie , 2010. In Norrie's language, deconstruction is therefore a 'critical legal theory' and not a theory of 'socio-legal studies' (Norrie, 2000: 86).…”

“…In short, because Derrida's work lacks 'credence and validity in the kind of socio-historical approach [seen] as central to critique' (Norrie, 2005a: 14), it consequently holds no utility for those concerned with social justice. This reading has been proposed by several scholars, beginning most vocally with the American critical theorist Nancy Fraser (Fraser, 1984 and then continuing strongly thereafter with the wellknown British sociolegal scholar Alan Norrie (Norrie, 1996(Norrie, , 2000(Norrie, , 2003a(Norrie, , 2003b(Norrie, , 2005a(Norrie, , 2005b(Norrie, , 2010. 3 This reading of deconstruction is a 'meta-ethical' one, as Norrie states:…”

“…The reading in question argues that Derrida's deconstructive legal theory at best marginalizes, and at worst prohibits, engagements with the 'socio-historical' (Norrie, 2000). That is, his theory does not, or cannot, '[expose] the ideological, superstructural nature of law by showing that it operates in the service of social, economic, and political forces that are posited as external and prior to the law' (Fraser, 1991(Fraser, : 1325.…”

Critical realism and the dialectic1

“…. .between totality and the thought of totality' (Bhaskar 1993: 26; see also Norrie 2000). The primacy of Reason and the championing of an identity theor y ultimately compels Hegel to push dialectic to the background in favour of the calm waters of Reason.…”