This is the foreword by Costas Douzinas to Law and Critique in Central Europe: Questioning the Past, Resisting the Present, eds. Rafał Manko, Cosmin Cercel, and Adam Sulikowski (Oxford: Counterpress 2016).
I am writing this preface in the Chamber of Hellenic Parliament a little after giving my maiden speech as a newly elected Member of Parliament for Syriza, the radical left party and current government of Greece. It is only a short six weeks since I gave the opening address at the amazing Critical Legal Conference (‘CLC’) on 5 September 2015 in Wrocław, Poland, the first CLC in Central Europe.
The change in my life since this historic meeting in Wrocław is momentous. I was asked to stand for the Greek Parliament on September 6th in my Wrocław hotel room. I had no desire or preparation to become a politician. I wanted to help Syriza at a difficult time—it had won handsomely the January 2015 elections and the July 2015 referendum on an anti-austerity programme. But after it was blackmailed into accepting a further bailout and accompanying memorandum of recessionary measures, its popularity with the Greek people seemed to be on the wane. I believe that the Left must experience the difficult and almost impossible task of government. I believe that we do not have any recipes or textbooks about the meaning of the radical Left in the 21st century. I believe therefore that Syriza, wounded after the defeat, should stay in power and try to work out through experimentation, imagination, and risk-taking what left governmentality and democratic socialism mean today.
I accepted to run for Syriza in the September 20th elections—less than three weeks away—that strange day in Wrocław when I was assured that my chances of getting elected were slim. I was elected, however, and the change in my life is quite dramatic. It is also characteristic of the wider change taking place all over Europe. An arc of virtue started emerging in Europe since the beginning of 2015. From Turkey to Greece and Spain, from Portugal to Ireland and Scotland, the dominant neoliberal ideology of the European Union is on the retreat. And the first CLC in Central Europe is a natural extension of this trend.
Being critical and radical in law or in any other area of intellectual activity has not been an easy task. When the first CLC took place in 1985 at the University of Kent, being critical was not conducive to career advancement. Using deconstruction, rhetoric, psychoanalysis, postcolonial, or queer theory in the reading of legal texts was considered at best exotically irrelevant and at worse ideologically suspect. In 1985, an article I wrote with Ronnie Warrington with the title ‘The deconstruction of jurisprudence’ was rejected because it included words that could not be found in the Oxford English Dictionary. ‘Deconstruction,’ ‘logocentrism,’ and ‘logonomocentrism’ offended the word police. It was not just the words. Our learned friends did not consider that deconstructing legal doctrine and theory was proper. How things have changed! Nowadays mainstream legal journals have articles on the ‘deconstruction’ of this or that doctrine, the ‘legal aesthetics’ of Shakespeare, or law and dance. Legal scholarship has experienced a renaissance in the last thirty years. The CLC has been at the forefront. Coming to Central and Eastern Europe is a natural extension.
But what is critique? Kant’s Critiques start by posing the question ‘quid iuris’—by what legal right. The link between law and critique is a central feature of modernity.
In the eighteenth century, history as a whole was unwittingly transformed into a sort of legal process … the tribunal of reason, with whose natural members the rising elite confidently ranked itself, involved all spheres of activity in varying stages of its development. Theology, art, history, the law, the State and politics, eventually reason itself—sooner or later all were called upon to answer for themselves.’
Critique brings reason, its faculties and disciplines to a legal tribunal and asks them to justify themselves according to legal protocols. In the original Kantian sense, critique means the exploration of the transcendental presuppositions, the inescapable conditions of possibility of a discourse or practice. To use human rights as an example, we could say that an examination of the transhistorical conditions of the emergence of human rights requires a critical appreciation of concept of humanism and the practice of rights in the Western legal tradition.
The aim of critique is to introduce a limit attitude, to ‘dare people to know’, but also to delineate what ought to remain off limits to knowledge because it does not belong to its kingdom. Critique is therefore a policing operation too; its judgment establishes boundaries while its border guards police the line between inside and outside, a function that appeared from the beginning to be excessively and essentially negative. Critique’s business is to prohibit and exclude, to keep ideas safe and protected. Critique comes before the law and is shaped according to legal protocols, peculiarities, and procedures. It finds in law its essence and form, it becomes law-like, the critic a judge or a guard, something not far removed from the Freudian conception of the law-like character of conscience or the superego. The critic is either the judge who makes distinctions, passes judgment, and sets limits, or the policeman who guards those limits and ensures that the judicial fiat is translated into daily practice. We are well aware of these two positions in intellectual life and their expressions in the legal academy. Critique takes its severe and austere stance from the protocols of legal propriety and sobriety.
Κρίνειν (krinein) however means also to cut; critique is a cutting force. It aims to distinguish between true manifestations and inauthentic counterparts of a phenomenon. Marx’s critique undercut ‘bourgeois’ philosophy arguing that the categories and suppositions of bourgeois thought conceal the true operations. The critical gaze saw the effects of inequality and power where philosophy had seen reason or the unproblematic development of tradition. To return to the example of human rights, the classic Marxist tradition would see these ideas as a fiction of a particular political order that attempts to preserve its hold on power by offering minor concessions, or blinding people with ideologies of the ‘rights of man’; for a Marxist, the rights of man include the rights of some to live in luxury, and the rights of the many to starve. The key to just social organization was imagined not as catalogues of rights, but as collective control over the state mechanisms that had been used to oppress them. Marxism is irreducibly marked by a utopian moment. The later manifestations of the tradition, for instance the celebrated Frankfurt School, continued and intensified both the analytical and utopian elements. In post-Marxist theory, the critic places much greater importance on the social imaginary and bears witness to the gaping cleavage between real and its idealized, ideological representations.
The British ‘Crits’ see themselves as a counter-movement with a practical and an ideational moment. We are radicals who do not discard the possibility of taking power. But at the same time we are demanding the impossible. The social has to be re-imagined. Notions such as the ‘intersubjective zap’ of the early American critical legal studies or the ‘momentary principle of justice’ in the British ethical period represent the intense moment when people perceive there is a possibility that coming together can be both a provocation and a utopian urge for a better world. Its Marxist loans are apparent in its theories of ideology and alienation. The legitimacy of the social world is sustained by ‘overpowering’ symbols that extend over the whole operation of the law.
In this sense, critical legal theory is intimately associated with philosophy and with emancipatory and radical politics. In equal measure, a critical movement is theoretical and political and a critical legal movement addresses the institutional and doctrinal politics of law and the politics of law’s self-understanding in the form of jurisprudence and legal theory. If one is not aware that legal concepts are reified and abstracted, they appear to have some kind of foundational substance, a kind of autonomy or independent being. Law presents the social order as if resting upon itself. This loses sight of the fact that the law manufactures its own conditions of legitimacy and then attempts to legislate them as a priori universals that have a legitimizing effect through their appeal to reason. Reification is a corruption of the very process of reasoning in that it passes off one thing as another: it gives coherence and substance to things that can have no independent being, like those fetishes that attribute human powers and capacities to objects and constructs. No social organization is a ‘given’—it is a cultural construction where ideas have gone into action. Over time, these ideas take a solid form, and the sheer contingency of the events that have constituted an order become forgotten. Behind every social organization there is thus a philosophy, even if this has become fetishized, unquestioned common sense, forgotten.
These are the issues and challenges that lawyers from Central Europe face. As this volume amply demonstrates, critical lawyers in this part of the world are doubly marginalized. First, they are seen as irrelevant and peripheral at best and as unacceptably disobedient and seditious at worst. Secondly, Eastern European comrades have suffered a kind of ‘symbolic violence’ in the hands of their Western European counterparts. The invigoration of critique in the East must combine the ‘left-right division with the centre-periphery dichotomy.’
The first challenge is not dissimilar to what Western critics experience. Being critical in the West always invited a suspicion of bad faith a kind of trahison des clercs. Hadn’t the West triumphed over the ‘evil empire’ by showing its commitment to the rule of law and human rights? Isn’t the critique of these hallowed institutions an expression of concealed communism? This type of suspicion accompanied too my encounters with dissident lawyers before 1989. In unintended alliance with the most reactionary parts of the Western legal establishment, Eastern dissidents thought that all critique of the Western legal system was part of an attempt to overturn it in favour of some unclear version of socialist legality.
Nothing was further from our mind. Our defensive strategy tried to keep the law honest, by making it deliver on its own promises of fairness, limited equality before the law, and a vague sense of care for people, something fatally undermined by the recent neoliberal turn. The more aggressive stance, associated with the utopian moment, attempted to conceptualize the alternative society and law at the bar of which current state law has to give an account and be held accountable. This alternative law is not something for the future. It is implicit in the here and now of legality from which we can tease out liberatory and future-oriented principles. In this sense, all critical legal scholarship is in effect paradoxical: it serves principles central to a legality of social justice while at the same time advocating a wholesale change of the law. Critical lawyers suffer from a kind of identity crisis, a mild schizophrenia. As lawyers, we use legal methods and procedures to defend the poor, the disadvantaged, the refugees, and migrants who are the contemporary face of exclusion and destitution. But as critics, we know that every victory for the oppressed and exploited offers legitimacy to a system that upholds its weak and weakened principles only exceptionally.
But I am a resolute optimist. Seeing a radical left party in government would have sounded a short and cruel joke before 2015. Seeing the CLC in Wrocław would have sounded an unreal pipedream of a few dreamers: several Central European lawyers (most of them present in this volume) and a few Crits in the West. They both happened in that extraordinary 2015. As I try to combine academic and political work, commuting every week from Athens to London to teach my class at the University I can only smile in the midst of great difficulties. We leftists have been used to intellectual failure and political defeat. Perhaps this is the time that things start changing and what was always an impossible dream, indeed what was the definition of impossibility, can become possible. Wrocław meets Athens and a novel tonality enters politics and law. This is hope and reality.
Athens-London, 5 November 2015
Costas Douzinas is a Member of the Hellenic Parliament, a Professor of Law and the Director of the Birkbeck Institute for the Humanities, University of London.
Law and Critique in Central Europe: Questioning the Past, Resisting the Present is available from Counterpress.