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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