Focus I: Microanalysis of Individual
Struggles
What is the purpose?
This is an invitation to think
about an ambitious project: to revision and analyse the microstructures of
legal practice as resources of moral struggle. More will be said about the microstructures
and their analysis, but let me first rip the whole parcel open for you to find
out straightaway what is in it. What the law hands out for all to make use of
is a specific language of right and wrong – at the same time, it makes this
language mandatory for anyone entering the field of law.[1]
To focus on struggle is to mark a critical turn to a broad problem: supposing that
a legal language as a general grammar of conflicts exists, what are the effects
of its use on the moral constitution of individuals?[2]
Unlike political struggles of groups for a common cause, moral struggle is a
matter of an individual’s relation to oneself. A solid self-relation may
protect the individual from the surrounding society, but it is the work of
one’s social experience all the same: confrontation with others and with the
impersonal society will constantly put one’s moral self-defences to a test of
endurance. At stake is an individual’s idea of oneself that is shaped by and
defended in social interaction.[3]
What sort of critical support the law may give when going through such trials
and tribulations?
What are Individual struggles?
Topical again due to the recent
outbursts of public anxiety (at Taksim,
Syntagma and Tahrir squares, in Rio and Crimea, in Zuccotti Park at Wall
Street, and so on),[4] political
struggles of groups are a well-researched area of social, political and
historical critique.[5] The
ways in which the law may be positively engaged in such collective struggles
have been discussed widely by legal scholars and political philosophers.[6]
Why is it that the field of the law and moral struggles of individuals appears
to be less explored?[7] One
may suspect that access to that field is still curtailed by the legacy of Enlightenment
moral philosophy of inborn qualities of man – Kant’s moral reason, Hume’s moral
sense, and so on.[8]
One might not detest these bright ideas so much had they not resulted in a
nasty trap pointed out by Marxists and other critics more or less in their vein.
In reality, ‘inborn qualities’ may turn out to function as exclusionary
determinations of the human.[9]
Apparently decent ideas produce reverse real effects: irresponsible exercise of
power and precarious real conditions of life.[10]
Insofar as deprivation of the means by which one used to make what is needed in
material life (the so-called proletarianisation)
was accompanied by a similar deprivation of the means of moral life, maybe both
of these desolations occurred in the juridical guise of ‘free will’? Saluted as
autonomous, rational and free, weren’t we simply left alone in the battlefield?
Restoring the battlefield as a problem field for research, the question of
moral constitution must be referred again, but this time to a different
register: subjectivation is necessary, but is resistance possible?[11]
What is the use of law?
Apart from liberal ideas, the
question of the relationship between an individual’s moral constitution and the
law can no longer be about realizing a genuinely moral being either, even less
about the becoming moral unity of the human kind. After all, such raising of
individuals sounds like fascism. The law has a use as a system of power and
practice of law is exercise of power; legal systems are not even-handed
distributions of powers between extra-legal forces, but to the full implicated
in the games of power.[12]
Insofar as a revision of the law is to be done genuinely from the side of
individuals and their struggles, one will have to consider the possibility of
the law as something that strengthens the subject’s resilience against any form
of domination – not excluding those forms that the law justifies. One way to provide
a vision to the law as a condition of moral resistance is through a specific social
theoretical notion of the law. The law on the whole, a complete legal system,
intends to cover every aspect of society, which is why it contains the same
structural heterogeneity and the same conflicts of value that exist in the
society itself.[13]
Insofar as incongruity is this way endemic to the law, mismatch and friction
will prevail as the underside of its regulative ideas of unity and coherence. Realising
this, a strategic posture towards the law on the whole is possible: freedom as a practice of law may be
carried out, not by identifying with a solid and crystallized homo juridicus, but through the mastery
of the decentred subjectivities prevailing in the field of law.
Problematisation
How to generate visibility to the
heterogeneous and decentred underside reality of the law in a way that it may
appear as a definite field of individual struggles? How to break ground for
exploring the legal language of moral struggles that may take advantage of the
said incongruity? To explore moral struggles as things emanating from the
underside of the law, the procedure of problematisation
may prove fruitful.[14]
Among other things, it is breeding of bewilderment through pluralisation of
viewpoints thus that their meeting points engender problems.[15]
Accordingly, problems may be invoked by making diagonal cuts across the field
of legal practice, in whose intersections legal structures of moral struggles
should become perceptible in a robust, concrete and analysable way. At this
time, procedural law and labour law are singled out as examples of divergent
entry points to the law on the whole as a field of struggles. More will be said
of that below, but let us turn to the method first.
Field of struggles constituted
Devising
analytical concepts is necessary, but not enough for our purposes. An entire
domain of knowledge must be constituted in order to make legal conditions of
moral struggle emerge as distinctive research objects. A specific analytic of struggles is required. Conceived originally for research of legal
cases, my proposal for an analytic of struggles breaks any set of
conflict-generated research materials into three dimensions: (1) in the
dimension of individuals, the law enters into the tactics of strategically
oriented actors as their means of struggle; (2) in the dimension of regimes,
functionally differentiated social systems compete with each other in the field
of law; (3) in the dimension of lawyers, at stake is the survival of the law as
one of the regimes that struggle for existence in a functionally differentiated
society. The analytic of struggles is not an abstract theory of law, but a
perspective for legal investigation: its worth should be proved in proximity to
practice and through research on any of the substantive branches of law.
Microanalysis – of what?
To begin
with, microanalysis is a way to individuate and assemble research materials. This
is achieved through an operation that may be called ‘positivisation’ of
rational reconstructions. In research on society, one usually understands
rational reconstruction in terms of discoveries of such tacit conceptions and
principles of practice that appear to be immanent to it as its unavoidable
premises. Reconstructions of these premises a researcher may subsequently work
out into reflexive standards of criticism of practice and even try feed them
back to practice as its own rationality.[16]
This project both builds on but also departs from that research programme. On
the basis is the observation that legal practice in itself is reflexive:
reconstruction of unavoidable premises is one of the lawyers’ ways to argue in
the course of their practical action. Recognising this, the objective for
research is no longer recovery of tacit self-understandings of legal practice,
but uncovering the micro level game of law in which actors make explicit uses
of unavoidable premises – as tactical choices pertinent to the case at hand.
Occurrences of the said type of strategically filtered reconstructions of
presuppositions may constitute the research materials of the project.
Examples: Labour law and procedural law
Labour law together with procedural law, as sites of the said type of
occurrences, provide exceptionally prominent examples of a staging for the
problem of moral struggles. To vindicate this, here are some provisional
examples of instances of rational reconstructions prevalent in those branches
of law. Procedural law purports to establish courtrooms as impartial spaces of equality: every party is provided the same arms
and presumed to be equally capable of using them. In stark contrast, labour law
sets out from the crucial presumption of the workplace as an asymmetric space of power relations
between employer and employee: protection of the weaker party is labour law’s
raison d’être. Born from class conflict and deeply embedded in the economic
functioning of societies, labour law stands for the idea of the law of the society: it has value as
an instrument of responding to changing societal needs. In turn, procedural law
stands out as the law of lawyers:
furnishing their practical work of reproduction of the law as a distinct social
system, it is a carrier of values inherent only to law.
The law on the whole is a field of struggles
It is important to note that the above indicated differences between
premises/presumptions of procedural law and labour law reflect similar tensions
prevalent in the law on the whole: as for the first difference, an ubiquitous
tension exists in law between the fundamental principle of formal equality, on
the one hand, and the inevitable existence of factual inequalities, on the
other hand; as for the second, an equally ubiquitous tension exists between
law’s responsiveness and autopoiesis. Moreover, in the intersection between
labour law and procedural law one may observe an expression of the adversity
between the two styles of doing justice – materialist and procedural – competing
for the status of ‘the paradigm’ of modern law.[17]
Constantly keeping a lookout for such intersections – between structures that
find rather one-sided expression in different branches of law – the research
should be all the while geared towards generalizability. At any event, the research
instruments outlined above are meant for the elucidation of the law on the
whole as a field of struggle.
Vision
The foregoing affair is merely to
mark some provisional points from which one might start working. More is
needed, this is all too little. Nevertheless, I do not wish to hide the grander
vision that stands in the background of these few notes. As a matter of course,
this project’s outcome should be a novel perspective added to the research of
law in society, but not only that. The social impact, hopefully coming about
over time through education of lawyers, is of much greater importance. The vision
of that impact is an ethically and politically sustainable understanding of the
law as an effective grammar of conflicts. It would be rooted in the ways in
which conflicts are dealt with and experienced in the so called life-world, but
there it would stand for critical
morality rather than for social mores.[18]
Finally, I dear confess my biggest dream: it is to make those people stronger
who wish to defend their individuality against standard normality, those who
wish to become ‘another beings’,[19]
by employing the language of right and wrong. Going through this dream is to
destroy some existing orders as far as mastery of oneself requires this. More
than destroy, however, I would like to see them put into operation as means of
struggle.
Samuli Hurri
Research group “Right and Wrong: Legal language of moral struggle”
[1] Ancient philosophers
considered that the capacity to make us of this language makes human beings.
See Aristotle, Politics 1.2.,
1253a10–17; Plato, Protagoras 322c–d.
[2] On the law as a language (in
the sense of grammar), see especially Martti Koskenniemi’s ‘Epilogoue’ to the
reissue of his From Apology to Utopia.
The Structure of International Legal Argument Cambridge: Cambridge
University Press 2005. In a similar vein, but pursuing rather different
objectives, Klaus Günther speaks of a ‘universal code of legality’ in his ‘Legal
pluralism or uniform concept of law? Globalisation as a problem of legal theory’
in No Foundations 5 (April 2008),
5–21.
[3] Therefore, the proposed research
would have a social psychological backbone in the original sense of G. H. Mead.
See his Mind, Self, and Society from the
Standpoint of a Social Behaviorist. Chicago and London: The University of
Chicago Press 1967; and Jürgen Habermas
‘Individuation through Socialization: On George Herbert Mead’s Theory of
Subjectivity’, in Habermas Postmetaphysical
Thinking: Philosophical Essays. Cambridge (Mass.) and London: The MIT Press
1994, 149–204.
[4] Greek legal philosopher
Costas Douzinas has defined our times as ‘the age of resistance’. See his Philosophy and Resistance in the Crisis.
Cambridge: Polity 2013.
[5] Groundbreaking works of
social historians: E. P. Thompson ’The Moral Economy of the English Crowd in
the Eighteenth Century’ Past &
Present No. 50 (Feb. 1971,) 76–136; E. P. Thompson Whigs and Hunters. The Origin of the Black Act. London: Breviary
Stuff Publications 2013; Barrington Moore Jr. Injustice: The Social Bases of Obedience and Revolt. London:
Macmillan 1978. Still pertinent attempt to theorize struggles of groups is
Ernesto Laclau and Chantal Mouffe Hegemony
and Socialist Strategy. Towards a Radical Democratic Politics, 2nd
edtion, London and New York: Verso 2001.
[6] In the U.S.A., Stuart
Scheingold and Austin Sarat have worked on what they call ‘cause lawyering’;
see their Something to Believe in:
Politics, Professionalism, and Cause Lawyering. Stanford: Stanford University Press, 2004. In
Finland, this path was opened by Thomas Wilhelmsson in his Senmodern ansvarsrätt. Privaträtt som redskap för mikropolitik.
Helsinki: Kauppakaari 2000. In political philosophy, a new initiative was
recently made by Simon Critchley; see his Infinitely
Demanding. Ethics of Commitment, Politics of Resistance. London & New
York: Verso 2012, 105–14.
[7] Important individual contributions
do exist: Locus classicus is Rudolph
von Jhering’s Der Kampf ums Recht
(1872), Frankfurt a. M.: Vittorio Klosterman 2003. See also Peter Fitzpatrick Law as Resistance: Modernism, Imperialism,
Legalism. Aldershot: Ashgate 2008.
[8] Hume and Kant were my own
initial attempts to enter the problem field of moral constitution and the law.
See Samuli Hurri ‘From dissonance to Sense: Categories of Private and Public’ in
T. Wilhelmsson & S. Hurri (eds.) From
Dissonance to Sense. Welfare State Expectations, Privatization and Private Law.
Aldershot: Ashgate 1999, 593–636.
[9] For a recent proposal for radical
alternative – based on the Spinozist conatus
as ‘the force common to everything around us’ – in which belonging to the law
is not to be construed from any given legal framework (such as that of human
rights), but negotiated in each given situation differently, see Andreja Zevnik
‘Becoming-Animal, Becoming-Detainee: Encountering Human Rights Discourse in
Guantanamo’ Law and Critique 22(2)
(July 2011), 155–169.
[10] See for example Scott Veitch Law and Irresponsibility. On the
legitimation of human suffering. Oxon: Routledge 2007.
[11] This problem is where I was
left in my Birth of the European
Individual. Law, Security, Economy. Oxon and New York, Routledge 2014.
Subjectivation is ‘the process of becoming subordinated by power as well as the
process of becoming a subject’. Judith Butler The Psychic life of Power: Theories in Subjection. Stanford:
Stanford University Press 1997, 2.
[12] A fine example of this is Loïc
Azoulai’s analysis of the tendency for EU law to be held as a ‘total’ law:
while ‘retained powers’ exists with
the Member States, they should nonetheless be exercised with a view of EU law. See his article The ‘Retained Powers’ Formula in the Case
Law of the European Court of Justice: EU law as Total Law? European Journal
of Legal Studies 4(1) 2011, 192–219.
[13] This is the way I would enter the so-called
agonist philosophy of law. For more elucidated views, see Andrew Schaap (ed.) Law and Agonistic Politics. Farnham:
Ashgate 2009; and Nuno M.M.S. Coelho ‘Controversy and Practical Reason in
Aristotle’ in Liesbeth Huppes-Cluysenaer and Nuno M.M.S. Coelho (eds.) Aristotle and the Philosophy of Law: Theory,
Practice and Justice. Dordrecht: Springer 2013, 87–108.
[14] I have employed this
procedure especially in Chapter 2 of my Birth
of the European Individual, supra
note 11.
[15] According to Foucault, for
something to become problematic ‘it is necessary that certain number of factors
to have made it uncertain, to have made it lose familiarity, or to have
provoked a certain number of difficulties around it’. See Polemics, Politics,
and Problematizations: an Interview with Michel Foucault’ in M. Foucault Ethics, Subjectivity and Truth: Essential
Works of Foucault 1954–1984, vol. 3, New York: The New Press, 117. I have
employed the procedure of problematisation in my Birth of the European Individual (op. cit. endnote 8), especially in Chapter 2. Possibilities of employing this procedure grow
larger when employed in a collective project:
something like ‘a “multiple” intelligence or kaleidoscopic view” of the
law may be prospected, in the words of Miguel
Poiares Maduro’s and Loïc Azoulai’s ‘Introduction’ to their edited volume on The Past and Future of EU Law. The Classics
of EU Law Revisited on the 50th anniversary of the Rome Treaty. Portland:
Hart Publishing 2010, xiv.
[16] Paragon examples of rational
reconstruction are the works by Jürgen Habermas in universal pragmatics and in
the law. See his ‘Discourse Ethics: Notes on a Program of Philosophical
Justification’, in his Moral
Consciousness and Communicative Action, Cambridge, UK: Polity Press 1992,
43–115; and Chapters 3–4 of his Between
Facts and Norms, Cambridge, UK: Polity Press 1996, 82–193. Emilios
Christodoulidis calls for a more destructive version of immanent critique,
where the point is to locate such self-contradictions that cannot be corrected
or disciplined. See his ‘Strategies of Rupture’ in Law and Critique 20(3) 2009, 3–26.
[17] See Habermas Between Facts and Norms, supra note 15,
Chapter 9. For Christodoulidis (supra note 15) the effect of the employment of
a proceduralist program in law is a deadlock for the materialist argument.
[18] Axel Honneth The Struggle for Recognition: The Moral Grammar of Social Conflicts.
Cambridge, UK: Polity Press 1995.
[19] Zevnik,
supra note 9, 160.
