Trouble in the Garden: Critical Legal Studies & the Crisis

By modest reckoning 2012 is the fourth year since the Great Recession began. Over the last four years the victories won by socialist and trade unionist movements over the course of the nineteenth and twentieth centuries (universal health care, access to education, pensions and more) have been under constant attack. All as part of a systematic attempt to open up new avenues of accumulation for global capital and to weaken the working class, particularly in the ‘West’. The Occupy Movement, the Indignants and others have mounted stirring, if sporadic, protests in opposition to this rising tide of barbarism, but as of yet the ‘Left’ has not mounted a serious counter offensive. In effect, we are in the midst of an epochal struggle, and so far only one side has come out swinging.

Greece is being bled; Ireland, rarely the most rebellious of nations (in spite of national self image) has been rendered prostrate before the Gods of finance and European integration; throughout the rest of Europe privatisation, austerity and flexibility are being implemented with the net effect of undermining the living conditions and future prospects of the popular classes. In the United States ‘tent cities’ have remerged; and throughout the Global South the paltry advances made in the halcyon days of trickle down globalisation towards the realisation of the tragi-comic Millennium Development Goals have been completely undermined, as hundreds of millions of ‘un-people’ are tossed onto the scrap pile of superfluous humanity. Alongside all of this we see the emergence, or intensification, of new forms of authoritarianism; as police and military powers (the mailed fist that always accompanies the invisible hand of the market) are increased, and democracy and popular sovereignty are disregarded as just so many useless paper shields.

The law, of course, is fundamentally implicated in all of these developments. From national legislation passed to implement retrogressive policies, to increased police powers, judicial decisions informing people that they have all the rights they can possibly hold, but that they are no use now, up to the EU’s new ‘austerity treaty’. Into this maelstrom the foremost forum for critical engagement with the law, the Critical Legal Conference (CLC), has made its latest intervention. In 2012 the unifying theme and focus of the CLC’s annual gathering will be ‘Gardens of Justice’.

At this event radicals of various hues will be invited to explore:

a plurality of justice gardens that function together or that are at times at odds with each other. There are for instance well ordered French gardens, with meticulously trimmed plants and straight angles, but that also plays tricks on your perception. There are English gardens that simultaneously look natural – un-written – and well kept, inviting you to take a slow stroll or perhaps sit down and read a book. There are closed gardens, surrounded by fences, and with limited access for ordinary people. There are gardens organized around ruins, let’s call them Roman gardens, where you can get a sense of the historical past, but without feeling threatened by its strangeness. There are Japanese stone gardens made for meditation rather than movement. There are zoological gardens, where you can study all those animal species that do not have a proper sense of justice, no social contracts, no inequality and social injustice, and no legal systems. There is, indeed, the Jungle, a real or imaginary place outside the Gardens of Law.

This theme, as the organizers note, is quite open ended, and susceptible to numerous and varied interpretations. For example one could reflect on law and justice as ‘a place where symbolic orders and disorders become visible and may be acted out’ or indeed as ‘process and phantasy’, as ‘theatre and/or temple of justice’ or ‘as a therapy session’. Doubtless this broad theme, and the various possible interpretations, can and will give rise to any number of interesting talks, papers and debates.

Here, I want to offer just one interpretation of the call for papers setting out this theme, one which I think tells us something about the current state of critical legal scholarship (and perhaps critical scholarship more generally). Ultimately, the call for papers and theme of the 2012 CLC is an indictment of the critical legal project (movement seems a wholly inappropriate term at present). At a time at which global and national elites are engaged in an unprecedented assault on the living conditions and rights of working people, when democracy, even in its ‘low intensity’ form, is in retreat, the leading lights in critical legal inquiry are retreating into the gardens of their own imagination, and abandoning the less pristine, less genteel footpaths and public squares of politics.

If the ‘critical’ in critical legal means anything, it means connecting the ‘law in the books’ up to the concrete political and social forces that give rise to it; a complete rejection of the reification of ‘black-letterism’, and a focus on the ways in which the empty platitudes and mystifications of the law are complicit in the maintenance of an unjust and inhuman status quo. As Marx, in his critique of Hegel’s Philosophy of Right, argued the purpose of critique was to pluck the imaginary flowers from the chains of humanity, not so that the chains should be borne without relief, but that they should be seen for what they were, cast off and the real, living flower plucked. The ‘Gardens of Justice’ call may be an indication that rather than plucking imaginary flowers, the CLC is choking on the weeds of its own intellectual faddism and irrelevance.

At a crucial historic juncture, when the structural barbarism of neoliberal capitalism is being entrenched at the expense of hundreds of millions of people, the CLC has nothing to say. Or rather, its annual conference will be filled with people with a lot of interesting things to say, just none of it of relevance to the real world. The reemergence of tent cities in the United States brings to mind the question posed by Muley, a tenant farmer faced with eviction in Steinbeck’s Grapes of Wrath, when he asks: ‘who do we shoot?’ At a time at which the vast majority of the people in the world are being buffeted and tormented by social and economic forces that appear to be beyond their control or comprehension, the role of critical legal inquiry should be to make explicit the concrete causal forces, and to play a role in articulating alternatives. Instead, the CLC has retreated into a self-indulgent and irrelevant engagement with empty metaphors.

At the start of this century Perry Anderson, in a call to arms for the Left, bemoaned what he perceived to be a retreat into ‘standards of writing that would have left Marx or Morris speechless’ occasioned by increased academization on the left. And called for those on the Left to consciously re-connect their work, and the ways in which they communicate it, to the real struggles faced by people. The ‘Gardens of Justice’ call appears to have taken the CLC in a completely different direction. Rather than bringing the white heat of critique to bear on the current global conjuncture, they have sought refuge in the shade of imaginary gardens. In homage to the horticultural theme, the question for all of us going forward is whether we want to seek pleasant repose in pristine, imaginary gardens, or if we want to contribute to plucking the imaginary flowers that Marx worked so hard to uproot in his time. For me the essence of critique is found in the latter, and only blissful and sterile oblivion in the former.

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  13 comments for “Trouble in the Garden: Critical Legal Studies & the Crisis

  1. Brenna Bhandar
    30 April 2012 at 11:06 am

    The author’s interjection is an interesting and timely one. However, absent in this critique of the CFP of the CLC 2012 and enacted as a different scene of erasure in the CFP is the fact that capitalism is racial and patriarchal. I was admittedly astonished to see the reference to the ‘Jungle’ which exists outside the space of law in the CFP. Whether one wants to refer to the textual and visual representations of the 18th and 19th centuries depicting the unruly, licentious gardens of the Orient, colonial laws that dispossessed indigenous peoples on the basis that they failed to ‘cultivate’ the land in ways cognisable to a European gaze, or the colonial construction of the ‘jungles of Africa’ as a space of fear and darkness to be conquered and contained, the CFP seems naive if not slightly guilty of ignoring the post-colonial critique of law that has emerged as a part of the critical legal studies scene for at least the last decade. However, I’m not simply trying to make a point about race and gender, but rather, how the racial, colonialist and patriarchal nature of capital is what needs to be accounted for in thinking through law’s complicity in the current crisis and the potential spaces for resistance. The black radical tradition that has heavily influenced the work of some small pockets of critical legal studies illuminates how capital has always been constituted through the racial; and separately from this but no less central to its operation, produces and sustains patriarchal social relations. Without this understanding, the author’s call for a renewed engagement with social-political struggles carries the risk of repeating scenes of marginalisation and erasure and moreover, produces an analysis of contemporary crises that is partial at best.

    • Paul O'Connell
      30 April 2012 at 2:09 pm

      Dear Brenna,

      I agree completely with your comment, both insofar as it highlights the absurd use of the idea of ‘the jungle’ in the CfP, and as it highlights the partiality of my own contribution. In part this is due to my response being written in a very short time-frame, but it’s also due to the fact that I have taken certain things for granted (my own political commitments, which I didn’t think to spell out).

      But just to be absolutely clear: my firm view is that capitalism is implicated in the maintenance of all forms of hierarchy (class, race, gender etc.) and that the law is likewise implicated in the maintenance of these hierarchies. Consequently opposition to the status quo necessarily involves opposition to, and critique of, hierarchy, injustice, and exploitation in all of its forms.

      My contribution here, the critique of the CfP, was very modestly intended to highlight the fact that concern for all of these issues is absent from the CLC this year, and that the various forms of hierarchy, marginalization, and exploitation have been occluded by unhelpful verbal show-boatery which serves only to mark one out as a member of the ‘critical’ crew, which has read it’s Deleuze, Foucault, Lyotard, Benjamin, Said etc. without actually saying anything.

      As I intimated in my original contribution, now would seem to be a time for anyone who considers themselves to be engaged in radical critique to ask some serious questions about what they are doing, individually and collectively. Going forward we have to ask ourselves the very simple question: what is to be done? Is critique simply an academic fashion, and the CLC just one form of academic and intellectual back-patting? Or is there more to it?

      For me the answer to this is relatively straightforward: the point is to change it. The “it” in this case can take any number of forms, but at the end of the day any critical theory worth its salt has to be concerned with trying to understand the workings of the world, expressing arguments and views on this in a clear and accessible way, and trying to contribute to the the development of alternatives to the status quo.

      There will of course be a myriad of different views on this matter, and these are the types of debates which the CLC should be facilitating. It may very well be that I have a quaint and somewhat antiquated view of what critique and the CLC should be engaged with, but I suspect not, and hope that my response to the CfP will contribute to these important discussions.

    • Basak Ertur
      2 May 2012 at 5:37 pm

      Very good point Brenna. Have you seen this CfP for a stream on ‘Critique and the Crisis of the “European” Humanities’ within the CLC?
      You certainly were not alone in the astonishment.
      http://www.criticallegalthinking.com/2012/05/02/critical-legal-conference-2012-list-of-streams/

  2. Loizos Karaolis
    30 April 2012 at 4:18 pm

    This is an interesting article. However, if there is a ‘crisis’ in critical legal studies (CLS), it is the failure of critical legal scholars to take doctrine or ‘black-letter law’ seriously. To provide a critique of the way law constitutes and reinforces the social, political and economic order first requires (substantive) knowledge of it. A complete rejection of it is intellectually (and pragmatically) flawed. Indeed, even if one accepts that the ‘internal’ or expository tradition is complicit in sustaining an unjust system (i.e. both in the books and in the ‘real’ world) it cannot simply be replaced by an ‘external’ critique of law. Durkheim himself took the view that legal doctrine should become a proper field of sociological enquiry so that legal issues would be reformulated ‘through sociological insight’. I would submit that it is high time CLS returned to its structuralist heritage if it has any chance of exposing the real power relations in the neo-liberal era.

  3. Andrea Pavoni
    30 April 2012 at 5:02 pm

    I believe the ability of the intellectual lies exactly in not being dragged every time in what is occurring in the specific historical situation, but rather in developing ways of thinking (in this case legal thinking) which would offer potentials for more or less foreseen directions, inspirations, understandings, or even cul-de-sac. It is not necessarily by being an ‘intellectuel engagé’, or by writing about the arab spring, the occupy movement, the economical crisis or one of the other supposedly ‘relevant’ matter, that the relevance of one’s (legal) thinking is demonstrated. Quite the contrary. The ability of an intellectual lies exactly in the potential to see ‘above’ the actual historical relations, which does not mean indifference, or transcendent superiority or indeed intellectual masturbation, but certainly means to refuse the brutal dichotomy between those who care and those who don’t, between those who save their academical conscience by demonstrating their political effort and those that are to be blamed because in this fucked-up world in which we live are still masturbating on differànce, or schizoanalysis, or indeed gardens…

    The role of an intellectual lies exactly in the capacity to avoid being drag into a ‘role’, and of being able to experiment all the possible routes, not only (and especially not) those who have been certified as ‘100% politically relevant’ by the usual Marxist-quote-yielding chastiser. And this also requires experimenting with language, with images, with ideas, with different ways of writing, speaking, among which is also the possibility to experiment with idea of gardening, and jungles, and seeds, as a way to think differently about law.

    Is this a good direction? Who knows. What I know is that these moralistic (yes, they are) denunciations of “self-indulgent and irrelevant engagement with empty metaphors” are, first, signs of an inability or more probably unwillingness to deal with ‘other’ way of elaborating the relation between thinking, words and images(an unwillingness which indeed leads to retreat in the comfortable, favourite denigratory term of choice: ‘metaphor’), and second, mirrors and replicate the very same operational logic that in other contexts they (les engagés) would rightly denounce, i.e. that of tying academic expression to immediate usefulness, to immediate practical relevance, to clear demonstration of commitment: in other words, to its immediately demonstrable result, being it political, economical or whatever….

    • Paul O'Connell
      1 May 2012 at 7:41 am

      Dear Andrea,

      I suspect we disagree. I do not subscribe to your romanticized notion of the role/non-role of the intellectual. If your argument is that those engaged in critical inquiry do/should operate ‘above’ society, and that their ideas may or may not be grounded in and relevant to the world they live in, then I simply reject that notion as the sort of narcissistic idealism that critique exists to expose and combat.

      As to whether my original comments are ‘moralistic’ or not, I’m not sure it matters. I’d prefer the term principled, but that might just be semantics. In any event, they were intended to spark a discussion about the role and future of critical legal scholarship, and not to denounce from on high, but you can take them as you will.

      Finally, I assume the ‘usual Marxist-quote-yielding chastiser’ line was meant as a barb/denigration of some sort. But, if it’s all the same, I’ll take it as a compliment. My own views are, as you intimate, firmly grounded in that tradition which provides the most thoroughgoing critique of capitalism, and I make no apologies for that. By the same token critique is a broad church, and I make no claims of ideological purity or critical per-eminence. My point is that whether one is Marxist or not, any critical inquiry worthy of the name has to do more than engage in speculative bouts of intellectual synesthesia. But we can, of course, agree to differ on this.

      • andrea pavoni
        14 May 2012 at 10:55 am

        Yep, we disagree. However my suggestion was definitively not that of the intellectual being ‘above’ society in the sense you imply. I clearly refuse any such a pretence of transcendence. Plus, I do not see romanticism in the intellectual refuting being dragged onto a role – actually, realism. I admit that the argument can be employed for romanticising purposes, for justifying intellectuals enclosed in Ivory towers. I also hinted to such a risk. However, I do not care. It is not this risk which should prevent us from thinking in different ways without being constrained and reduced by the urgent and unavoidably (literally) myopic calculations of the here-and-now. We do not know what ideas, thoughts, can do, and where can they lead to. Many ideas we employ now in ‘concrete’ battles were born very far away from any direct activistic involvement, and with this chastising attitude towards supposedly ‘irrelevant’ thinking many ideas and concepts activists themselves are using today will simply not be there.

        Meaning that it is always necessary to leave space for different, or rather, differently sophisticated ways of thinking, rather than boringly (no offence, my polemic is not with you in particular but with a certain mood in general) accuse one conference or one workshop because we think is not relevant enough.

        Plus, I do not take your remarks as denouncing from on high, rather from low, i.e. the classical denounce of those who believe they are doing concrete stuff against those who are supposedly babbling away in their bourgeois (or whatever) abstractions. This is what I think anyway, for what it matters.

        The ‘Marxist’ joke was a polemical joke, so take it as it is. No problem with Marxism. A lot of problems with those pseudo-Marxists pretending to carry alone the holy flame of critique – not necessarily you of course, do not pretend to know what your thoughts are from a blog post. However, and clearly declining to respond to the reduction of the conference to ‘speculative bouts of intellectual synesthesia’ since I take it, be it or not, as an as much polemical joke, I firmly believe that without re-thinking what critique means, what the role of the intellectual means, what the role of critical legal thinking means – and thus without exploring other direction, gardens included – fresh perspectives are very unlikely to emerge. By taking them (role, critique etc.) for granted instead, we will surely maintain our self-integrity as righteous, engaged intellectuals, however simply re-producing (and this was my main point) the very same logic of economically-oriented approach to accademia, namely the reduction of intellectual thinking to the calculations of the here-and-now. After all I’m certainly not the first to note the hidden complicity of Marx’s assumption of man as necessarily ‘productive’ being through work, and the very ‘productive’ logic of techné as capitalism. but this is a very different topic…

  4. Neil
    30 April 2012 at 6:16 pm

    Great article, and very eloquently defended too. CLS needs a wake-up call, frankly. It needs to stop privileging abstract idealist theory over real-world naturalist solutions. Until then, it will not have an impact on political debate, let alone the onward march of neoliberal capitalism.

  5. Elena Loizidou
    1 May 2012 at 12:36 pm

    Paul O’Connel critique of the clc2012 theme and call for papers and panels, is thoughtful. Brenna Bhandar raises also important critical points in relation to Paul O’Connel’s critique but also in relation to the conference itself.
    I am not certain whether the clc is in crisis, or whether we should be invoking the term crisis, at least not without reflecting how crisis per se is used or has been used by capitalism and its institutions to produce new markets or control countries and populations. Naomi Klein in her Shock Doctrine attends pricisely to the crisis problematic. I am not sure also that just looking at economic relations and law is also the only indicator of the problems that the world is facing today. Brenna Bhandar identifies that our deficit today is not just economic, our duty is to attend to the collonial and post-collonial narratives of repression and subjugation as well as gender. Indeed may I suggest along with Brenna that inequalities of gender, race, sexuality are not just economic questions, rather they raise subjective questions that they necessiate questioning discourses of affect, reason, sensuality, questions that certain philosophers have attend to much better than Marx.
    The issue here is not either or-either attend to the economy, the politcal and exclude the easthetic or ethical, the issue is to attend to all. Justice is not a garden, any critical scholar, or any body that has been attending the court hearings of students that have been charged with various offences during last year’s anti-fee demonstrations, can see that the urban courtroom is farcical. In order to understand how this farce operates, how to counter it, one has to indulge in serious studies of aesthetics, philosophical and cultural.
    And if and if one wants to build a new world, one perhaps has to risk to risk and indulge in fantasy, to indulge in re-imagining the world anew. This does not mean that one forgets reality but rather that reality that it operates at the backdrop of fantasy. After all if it was imagination, the imagination for a better world that the Occupy and other movements that we have seen springing over the year that also enabled them to act.
    And if it was not for Paul O’connel’s eloquent piece- that holds onto his own imagination for a better world, these beautiful conversations will not have ensued.

  6. Helen Woods
    1 May 2012 at 1:29 pm

    I agree with Loizos and Neil. CLS needs to take doctrine seriously and curtail its obsession with abstract theorising. Its failure to engage with concrete issues has meant that CLS itself isn’t taken seriously by the legal community. Its lack of presence (if any) in the major law journals affirms that.

  7. Angus McDonald
    12 June 2012 at 4:07 pm

    Paul O’Connell says, “the world is like this and this and this, and these people want to talk about that and that and that – how dare they!” But Paul’s choices about what is important and what is irrelevant come from his own theoretical position. He has not escaped theory into reality, but chosen one theory over another. Judge the call by the response: streams, amongst others, on genealogies of laws and justices; international law, genocide and imperialism; human rights, asylum, refugees; education; anarchism; gender; vulnerability; an open stream. Is Paul really saying his concerns can’t be addressed in these streams? That he has an impoverished sense of the garden metaphor is perhaps restricting his imagination. Scotland’s greatest artist gardener of the 20th century, Ian Hamilton Finlay, said “Certain gardens are described as retreats when they are really attacks”. A critic said, “Finlay’s garden is based specifically on the necessity for language, a vox populi, which he feels is the only tool that we have for social solidarity ..which ..must be used to reinforce the values of the Greek polis, with its body of responsible, active and above all debating citizens, or risk being used by those who use language to create distrust of language itself, to isolate, to terrorize and finally to destroy individuals and culture.” Paul, can you really say this does not engage with your concerns, or that it excludes them? Paul’s tone reminds me, given my long institutional memory of CLC, of the response in Newcastle in 1987 I think it was to Peter Rush’s so-called frivolous concern with presentational form, denounced for not engaging with the reality of high unemployment in a Northern town in recession – and so the postmoderns versus the marxists arguments began. Plus ca change. Whether it is university managerialism, the REF, or the moralist left, those who insist that only their agenda is the valid agenda must always be resisted. Don’t tell us in imperative terms to be “relevant to the real world”. There’s no reason to believe that you know better than anyone else what’s relevant and what’s real. And if some choose to make their relevance oblique rather than direct, so what?

  8. Pablo Ghetti
    26 July 2012 at 12:40 pm

    Paul O’Connell’s piece pointed to a certain unease in relation to the Call for Papers 2012 (I would confess, if this were a place for confession, that I was astonished too) and perhaps to the CLC as a whole. Even though I would very much welcome political and economic issues addressed in conjunction with relevant theoretical frameworks at the CLC and other critical/postmodern spaces, I doubt the absence of economics or current politics is the actual problem with the CFP. Imagination is a powerful tool of political struggle – metaphors and metonyms even more so, since they can bring together concrete and meaningful experiences, on the one hand, and broad goals, projects and theories, on the other. And it cannot be excluded that, when social events seem to be accelerating, one should take a step back and engage with the kinds of theories and thoughts that are missing from actual political movements. Even a “private ironist”, as Rorty would have classified Derrida, could have an important social, political and historical impact in disrupting settled ways of thinking, crafting a “vocabulary” that “opens up new worlds to his readership” (Habermas). Remember that famous Marxist joke: “Dr Marx, let’s go outside, the day of the proletarian revolution has finally arrived!”. And Marx replies: “Can you wait a minute, let me just finish this paragraph please!” (Derrida seems to have done just that in 1968). In any event, most of what Angus said seems clear to me.

    The problem is that the metaphor of the garden, in the way it was construed, does not seem to work for most people. And it fails to take into account, as Brenna rightly pointed out, postcolonial sensitivities – and I would say also animal rights/posthuman sensitivities. When I first read the title, I immediately thought of a satire (in the spirit of Goodrich’s Satirical Legal Studies). But it kept going with a kind of standard CFP, serious talk:
    “The theme for this year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements.”

    And then comes that extract O’Connel picked, which continues with more “academic talk”: “The theme “Gardens of Justice” further suggests a plurality of justice gardens that function together or that are at times at odds with each other”. And then there is something, difficult to classify, that could perhaps be a satire, if only the stage for such a satirical move had been more cautiously prepared:

    “There are for instance well ordered French gardens, with meticulously trimmed plants and straight angles, but that also plays tricks on your perception. There are English gardens that simultaneously look natural – un-written – and well kept, inviting you to take a slow stroll or perhaps sit down and read a book. There are closed gardens, surrounded by fences, and with limited access for ordinary people. There are gardens organized around ruins, let’s call them Roman gardens, where you can get a sense of the historical past, but without feeling threatened by its strangeness. There are Japanese stone gardens made for meditation rather than movement. There are zoological gardens, where you can study all those animal species that do not have a proper sense of justice, no social contracts, no inequality and social injustice, and no legal systems. There is, indeed, the Jungle, a real or imaginary place outside the Gardens of Law.”

    If this text were a satire, an exaggeration, a humorous performance with the purpose of exposing disingenuous concepts and prejudices, then, paradoxically, it would have been truly “critical” and it could perhaps work.

    (And please let’s not turn this into a Marx v. postmoderns debate, let’s rather discuss capital, value, labour, commodity in more complex ways, as advised by Derrida, Nancy, and Lyotard, and let’s remember Marx’s own roots in German “idealism”, in Hegel and in Hölderlin).

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