Legal theoretical approaches oriented around discerning a constitutive difference between law and morality are misguided in that they misrepresent epistemological claims for ontological certainty. While some, such as Kelsen, have been admirably straightforward about this, other legal scholars have attempted to hide this unfortunate reality beneath layers of conflation and qualifications.1See Hans Kelsen. The Pure Theory of Law. (United States: Lawbook Exchange Limited, 2008) Hart’s work is the most prominent and indicatory example; one more brief look at his work will provide a useful segue into the more critical discussion. Hart argues that the transition from rules to law is primarily driven by the desire of hegemonic groups who feel obligated by the dictates of particular moral systems to oblige others to adhere to them as well.2See H.L.A Hart. The Concept of Law: Second Edition. (Oxford: Oxford University Press, 1997), 82-83 The motivation behind this is to increase the domain of authority and establish a clear and mechanically functioning order. This, Hart claims, is an entirely amoral process. He never acknowledges, and this is something Fuller rightly reprimands him for, that the orientation towards valorizing order itself flows from a very particular tradition; what I would characterize as the technical mindset at the centre of Western thought.3His first engagement with Hart’s seminal paper “Positivism and the Separation of Law and Morals” appears in Lon Fuller “Positivism and Fidelity to the Law: A Reply to Professor Hart,” Harvard Law Review 71, (1958). He later engaged more systematically with Hart’s mature position in Lon Fuller. The Morality of Law. (New Haven and London: Yale University Press, 1964), 95-151 It is no surprise that the positivistic approach pioneered and systematized by Kelsen and Hart is one that emphasizes the distinction between discrete segments of the population and feels compelled to assimilate these distinctions within one descriptive system the accounts for how these differences are controlled and managed.
In tailoring such an approach, Hart reveals something key about the legal system that he is unwilling to acknowledge. This is that law does not have the function of managing difference. It produces difference through the very processes that are designed and implemented to manage it through the legal system. In so doing, the application of a pseudo-positivistic legal system to society can contribute to the same tensions it is designed to ease. Theories centered on revealing that there is a constitutive point where morality and politics transition into law conceal this process through an ever more sophisticated and gigantic edifice that transforms an empirical subject matter into a transcendental one. In this way, much as with Kant, even descriptive accounts of law that eschew moral judgements serve to legitimate the status quo by fastidiously maintaining that something called law exists and is applied in a particular way. It is this process that I shall now explore in some detail though the remainder of this section.
Asking “what is the law” only makes sense by abstracting the subject matter away from the highly complex and layered social and material contexts which produce legal systems in the first place. Law may be or become a “science” as its acolytes wish, but they forget that the key feature of technical activity is the establishment of ever growing object domains premised on a metaphysical supposition about the ontological reality of “things.” Since “things” are assumed and not given empirically, the recourse to transcendental languages of conceptualizing on the part of both legal theorists and practitioners is unsurprising. There is a compulsive need for the strict application of categorical distinctions that none the less tend to break down in practice; thus resulting in the endless retellings of Jerome Frank’s “basic myth” about the objectivity of the law.4Jerome Frank. Law and the Modern Mind. (New Brunswick: Transaction Publishers, 2009), 3-13. Indeed, no legal generation is without its mythmakers, given to all the bad habits of mysticism and ostentation. The most prominent modern example in the American context is undoubtedly Justice Scalia, whose snide and specious judgements on constitutional questions have burdened American jurisprudence for almost 30 years now.
One of laws’ most notable functions is to promote homogeneity across the population. In this respect Hart was entirely right. But as the series of object domains established and in part validated through the practice of law grows, so too must the measures of control. It is no surprise that in an era where legislators speak tirelessly of increasing freedom through law that there are more highly specified restrictions on human life than ever before. But more than that, in the process of creating such restrictions and legal categories it encourages subjects to identify with these legal labels and appropriate them as part of their identity. The thief, the drug user, and the illegal immigrant are all seen as deviations from the norms law is designed to uphold. But this gets the chicken and the egg scenario wrong since these persons are directly the products of the law. As with the functioning of the capitalist system generally, the effect of homogenizing practices oriented by the technical mindset is instead to produce false differentiation. Law is involved in a losing battle with itself through the production of difference.
To get around this, we require an account of the state. Following Badiou, I employ the term state here not referring to a positive object in the world.5Alain Badiou, trans. Justin Barker. Metapolitics. (London: Verso Press, 2005), 81 It is rather the name of this fluctuating collection of controls directed at and controlling differentiated object domains. It is oriented ideologically and directed materially by power.6Power here should be understood in the broad Foucaultian sense. Through the logic of difference, these domains have become increasingly disparate, especially as technology increases the ways in which interests are expressed. It is the challenge of the state that these tensions must be fused and assimilated into a singular authority legitimated through a monopoly on coercive force. While the social hierarchy may be increasingly fluid in some respects, what remains unchanging is this orientation towards establishing order. This order reflects the prevailing ideology; a relatively fluid collection of framing norms.
In exceptional instances where these are challenged, naked force still exposes itself as the foundation for this authority. The imposition of legal sanctions on deviants is meant to re-establish the integrity of the law over its various object domains. But this integrity will always be challenged because human beings exist historically. What makes the state unique is its uncomfortable relationship to history. Conceived and implemented by unconscious actors, law is charged with making the world of becoming into a world of beings. Law and the state it represents are designated precisely to deny real history. In this sense, Fukuyama was entirely right to say that liberal-democratic hegemony would mean the end of the historical. The state cannot deny time, since it manages the practical interactions between real subjects. But it must deny subjects the infinite capacity for context transcendence by subjecting them to material limitations justified, in the modern context, as necessary for the protection of freedom. Freedom becomes obedience to laws one did not give to oneself at either the individual or collective level.
In trying to deny the context-transcending powers of individuals through the production of limiting distinctions, law takes on the form of a transient eternal medium. It is the so called Mortal God. The structuring hierarchy necessitates the logic of law evolve while the principles, or to use Jeremy Waldron’s term, hermeneutic archetypes, underlying it remain the same.7See Jeremy Waldron. “Torture and Positive Law: Jurisprudence for the Whitehouse.” Columbia Law Review 105 (2005): 1723
Legal realists saw decisions as entirely spurious and determined by arbitrary and subjective moral reasoning on the part of judges. What the positivists understood was that law, as a medium, imposes its own restraints that go beyond mere hermeneutic questions about how to understand the First Amendment. The state names a fluctuating body of controls, but what is permanent is the existence of such controls. The content of law may be what it is, but there will be law.
There is nothing inherently wrong with this. But when combined with a logic of differentiation, law has the effect of imposing constraints through which the context transcending powers of human interest become channelled and alienated. This tendency becomes ever more problematic in a globalizing, technologically driven society in which persons are exposed to ever more varied mediums that might inspire the imagination and imply that governing ideologies and the existence of the state is a false necessity. The key to the state’s power lies in its production of differences in no small part through the law. It can do so to the immediate detriment of some, in the case of those criminalized, or to the benefit of others, as in the case of refugees. But in each instance one comes before the law to be named.
Consciousness becomes attached to legally defined categories that apparently solidify identity. But these legal categories can never be assimilated so that one could redefine them in such a way that one might broach from official expectations. The context transcending capacity of consciousness is constrained. The subject might feel their individuality is validated by finding expression though the legal medium, especially if it is to their short term advantage. And indeed, interests are rewarded as long as they are expressed in line with the inner laws of the legal medium. But, and this is the key, because they are recognized by the law, these interest can no longer be questioned, overcome, or made authentic except through appeal to other legal categories.
But what of instances where this breaks down? Where the choice of what person I shall be does becomes a social issue and there is a demand for real history. In such instances, the state ceases to be a name for maintaining a benign and democratic social order and overtly appears as a set of institutions which determines the structure of the social hierarchy in a manner conducive to maintaining the status quo. The apparently “realistic” liberal-democratic belief that policies of toleration and multiculturalism can supplant the enactment of sovereignty is unmasked as utopian. In these instances the reality of sovereign authority, which often fades into the background during periods of social stability, asserts itself by clarifying how processes of social differentiation will take place by establishing the political and legal parameters through which it can be permissibly expressed.
In this way the legal system both breaks down the population into differentiated groups and must always prevent this from having a historical impact by ensuring the continuity of the social hierarchy protected by sovereign power. Law is always in tension with itself, going back and forth between patronizing by breaking down and disciplining by imposing force. Who gets to decide this, however, is not a legal question. It is ultimately political, backed up by dominant ideologies. It is to this issue that we must then turn.
Matthew McManus is a PhD Candidate in Socio-Legal Studies at York University.