Impressions of the Critical Legal Conference 2012

The Critical Legal Conference (“CLC”) 2012. I thought I’d leave it until a week after the event, to allow time for the dust to settle, before reflecting on the connections between the diverse papers, the intense conversations and my own theoretical preoccupations. It was hosted this year by the KTH Royal Institute of Technology in Stockholm, in its beautiful, turn-​of-​the-​last-​century, listed buildings. Interestingly, the organiser tells me the Institute doesn’t have a law department and doesn’t offer law degrees, which in a way makes it the ideal place to hold a legal conference whose very identity, to put it euphemistically, seems forever in question. On this very site, there was discussion over what it should be about, its (ir)relevance to the wider world, and the proper meaning of critique, all before it even took place. Lucky for us then, as this year is the CLC’s 30th anniversary, we had Angus McDonald, a regular from the very beginning and one of the acknowledged keepers of its institutional memory, to deliver the final plenary on his idea of critique as avocation. (I say lucky for us, perhaps it wasn’t lucky for a CLC newbie who, during the post-​presentation question time, earnestly asked if Angus could help her out of the general “confusion” in which the conference had left her, and to which he quietly replied, “I can’t help you”.)

If, as we all know, vocation is a main occupation, a calling (Latin: vocare) directly towards something, whether scientific, religious or otherwise, then avocation, according to one dictionary definition, is “a hobby or minor occupation” or, more archaically, a general distraction or diversion. Critique as avocation, Angus tells us, is more playful and diversionary than critique as a vocation. It is to take seriously not being serious, a thinking that reminds me of Nietzsche’s lauding of Ancient Cynic buffoonery. It is to render ideas labyrinthine, not a straight line. Critique as avocation means nothing less — but as with any new trope, it leaves open the possibility of meaning much more — than to enter the spirit of the situationist détournement.

Does this negate or denigrate “serious” critique of the marxist variety? Is there an implicit “fuck off” in this discourse that is inherently violent? These were the well-​founded concerns of some in the audience. My interpretation of critique as avocation, which is doubtlessly a productive misinterpretation — I do not claim to speak for Angus — is that it is a way of thinking about radical critique, that is, critique that works all the way down to the roots or even perhaps the singular rhizomatic root that channels into all forms of serious critique. For me, a-​vocation signals the absence of the voice or simply silence. But far from undermining critique, if we can imagine the power in the call of silence like in Kafka’s sirens, if we can imagine silence as NOTHING like in Bataille’s sovereignty, then the circuitous movement through or into the open starts to show its potential. If we further consider an allied mode of thinking, namely Deleuze and Guattari’s nomad war machine, then the spatio-​political ramifications become even more apparent. For Deleuze and Guattari, the nomad war machine is a principle of free movement and becoming that necessarily collides with the boundaries of the state apparatus, like a river collides and eventually erodes its banks. In this sense, nomads are avocational par excellence. Freedom to think otherwise, to weave hitherto unknown and labyrinthine patterns of thought, is the condition of possibility of radical forms of resistance. The question of violence then becomes a question of perspective. From the perspective of the state, the war machine is violent and destructive, but on its own terms the nomad is simply in a process of continual movement. Critique as avocation is a discourse of radical freedom.

So the question of critique, the possibility to critique critique so-​to-​speak, is a central and I would say healthy concern of the CLC. At the same time, it may seem rather ironic, given this is also a law conference, that this year the question of law and legality also stood out for me; not because of the number of papers that mentioned the word “law”, but because the many ways that law was being used led, in several instances, to the basic question of definition. For example, in the stream I organised on law and anarchism, the attempt to think a society without law came down to the question of what kind of law we were talking about. Anarchists like Bakunin advocate the abolition of juridical law or state law, since this form of law is complicit with the system of capitalist exploitation and domination. But in our discussions it became clear that doing away with one form of law merely replaces it with another, e.g. local cooperative laws rather than state law, which cannot guarantee to be more just. Indeed the impersonal nature of state law could be seen, in some instances, as a preferable form of law to pick a fight with. As one panelist said, I’d rather juridical law classify me a nuisance than the local cooperative/​council tell me I’m playing my music too loud.

Elsewhere I had conversations that turned fundamentally on the question of whether, in the ethics of alterity, law can include the notions of necessity, demand and the absolute call of the other. If it can, then alterity becomes subsumed in law; if it cannot, then alterity is the means to escape law. In my work, I take a less binary stand, often deploying the oxymoronic idea of a law of freedom. From this perspective, law and freedom are antagonistic to each other while also dependent on each other. Law calls out to freedom, demands that freedom be bounded, yet freedom knows itself as such precisely through the possibility of transgressing those boundaries. At this very foundational level, there is no freedom without law and no law without freedom. Technically one could view law in this context as the moral law in Kant. Taken more generally, however, one could also see this as the basis of juridical law in Kelsen, if we were to reinterpret the fiction of his basic norm precisely in the sense of Bataille mentioned above, despite this being a rather unconventional thing to do.

This is why, drawing from yet another conversation, the fear that critical legal theory might be drifting too far into politics, that it needs to be brought back to law or to have its identity consolidated around the law, seems problematic to me. What do we mean by law here? Should everything we do be shown to relate to case law or parliamentary legislation? What about “law” the legal profession does not recognise and never will? What about justice, should this be left to theologians and political philosophers or can critical legal theorists talk about it as long as we relate it back to the law? But what is meant by law… ?

At the same time, I appreciate that there is the word “legal” in “critical legal” and that this is significant, otherwise why not just leave it out. If there is one thing for which I would thank analytical jurisprudence, it is that it establishes the impossibility of a universal definition of law. Reading Herbert Hart’s Concept of Law relieved me long ago of the burden of seeking to define law and I have always tended, admittedly contra Hart, to fall back on to the broadest possible way of conceiving it, whether ontological, moral, juridical, etc., as is evident from my predilection for thinking in terms of the law of freedom. However, it now seems to me that the non-​universal definition of law with which Hart was so dissatisfied could be rather useful, in particular, functional definitions that are meant to facilitate comprehension for a specific purpose. Such definitions, by definition, are never perfect, but this is why they eventually turn into extended theoretical frameworks, whose “perfection” resides precisely in their susceptibility to the kind of critique that produces something new. To authorise a definition and to impose it on others may seem rather oppressive, but then there is always the possibility of resistance: tell me what your concept of law is and why you conceive it so, and I’ll ascertain from that what your theoretical and political commitments are and whether I agree with them.

So how would I define law now? To remain consistent, it would have to depend on the context and the particularities of the argument I am pursuing. I might, for example, emphasise aspects of state or juridical law in the appropriate context. I might emphasise a more pluralistic concept of law if I were working at various social and international levels. I might emphasise an originary obligation, demand or force if I were thinking at an ontological level. I might emphasise law in terms of power and subjection if I were considering questions of radical democracy. I might emphasise law in terms of bureaucratic rules and governmentality if I were focusing on biopolitics. I might also invoke one definition against another if I wanted to enter into a critique of that definition, as I have above, albeit obliquely.

Furthermore, I am happy to define critical legal theory as the application of critical theory to law, even if this brings us back to the problematic definition of law itself. At the same time, I would insist on the possibility of a very different definition, where critical legal theory is understood more generally as the application of legal critique to the theoretical humanities. The latter definition would relate to, for example, thinking a political philosophy in which law is not a panacea, or thinking an ethics beyond the legal subject, or to thinking the existentiality of freedom, where freedom is not subordinate to law but where law is nonetheless its condition of possibility. Deployed in this way, critical legal theory lends itself to questioning the very act of thinking itself insofar as thinking has been, ever since Ancient Rome or at least since Kant, intimately linked to a kind of juridical process, a tribunal of reason. Perhaps this is why the CLC has identity crisis written into its DNA (crisis as krinein and as critique). This is also perhaps why, in its diversity, divisions and yes “confusion” (Latin: confundere = to pour together), the CLC holds so much promise.

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