Johnie Thornton: ‘Should Have Been a Sun’ (2015)

Does law need jurists (or lawyers, as they are called in the Common law tradition) to perform its regulatory functions? In the Western Legal Tradition, the answer is usually “yes.” The orthodox narrative tells us that law is a human construct in the sense that it would have never come into existence without the great minds of the Roman jurists of the Late Republic (second century BC). Since then, the story goes, the structural link between law and human intellect and sensitivity has always laid at the core of our legal consciousness (with some noticeable exceptions).

This conventional reconstruction not only masks that, in the West, law first emerged in Greece, and not in Rome. Above all, it makes us forget that the link between law’s regulatory instances and the jurist should not be taken for granted. To appreciate this, it would suffice to think of how most of the time law shapes our daily existence without the direct intermediation of (some of) its officials. As we teach our students, a lawsuit is always the last resort. Different routes should be preferred before bringing proceedings given that lawyers are generally very expensive and trials take a long time. That this applies to us (the people) as well should not surprise anyone. Law is constantly lurking in the penumbra and certainly does not need us being aware of its controlling prerogatives. The very fact that, as the rule goes, ignorantia legis non excusat (ignorance of the law does not excuse breaking it), confirms that law’s authority does not depend on us acknowledging it—something which applies to law’s public (i.e. criminal, constitutional, etc.) and private (i.e. contract, tort, etc.) dimensions alike.

Law’s independency from the human seems to have reached unprecedented levels in our global and transnational age. On the one hand, our biopolitical existence is highly legalised. This can be easily proved by measuring the incessant proliferation and penetration of rules at and into the macro, meso, and micro levels of our daily life. Legal expertise plays, of course, a fundamental role in this.[1] On the other hand, though, law schools and the legal professions are experiencing profound difficulties for a variety of reasons—including the inability of teachers to efficiently educate their students for the highly-contested market environments, the increasing difficulty for graduates to enter the professional world, the incapacity of the modern legal infrastructure to cope with the pace of innovation, and the growing reliance on technological means to perform legal tasks.[2] Thus, while law has never been stronger or more pervasive, it seems increasingly capable of operating without the specialised intermediation of those who are supposed to administer it. If one were to summarise what law has been going through, one could say that its coordinating function is being progressively detached from the activity of jus-dicere, or rule-telling through juristic practice.

Regrettably, scholars have failed to grasp this. Focusing on how the fast processes of digitalisation and automation that shape our global and transnational age have been transforming the modern legal infrastructure and our approach to it, they have missed that it is juristic practice, rather than law, that is witnessing a crisis. Or to put it differently, that law’s juridical component is increasingly incapable of embracing the reality of contemporary forms of regulation. More fundamentally, they have failed to notice that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human. The conventional narrative regarding law and the human has been so pervasive that it has distracted us from what is really happening to both.

Law and Human Inter-action

The fact that law exerts concrete effects on our life should not distract us from its metaphysical (i.e. ontologically transcendental) character. In fact, it is precisely law’s metaphysical condition that we ought to return to if we are to comprehend why it will increasingly less depend upon the jurist to perform its authoritarian instances. As is with every metaphysical entity, indeed, law’s development is always presupposed by its archē(origin).

The suggested journey would reveal that the law’s detachment from the jurist is anything but a recent phenomenon. It has to be explored via reference to the separation of jus(“the original nucleus—sapiential and aristocratic—of Roman civic ordering”[3]) from lex(“the regulatory presence of ‘the rule of the people’”[4], or “political rule”[5]). The promulgation of the Twelve Tables in 451-450 BC under Rome’s contacts with the Greek world and culture is considered by some commentators to be the foundational moment of law’s severance from jus[6]. It was back then that the first step was taken for the later transformation of juristic practice (the finite and imperfect rule-telling activity of the aristocratic expert[7]) into scientia juris(an abstract “cognitive operation,”[8] or “intellectual practice”[9] which rendered “law an authentic form of metaphysics”[10] and became “the motor of any development of [j]us”[11]). From that moment onwards, the jurists’ “self-isolation . . . in a universe made solely of forms, propositions, defined and hidden compatibilities”[12] increasingly affected law’s development and teaching to then reach its apex in the positivist tradition.

To be sure, legal historians have been long discussing whether the Roman jurists of the Late Republic adopted those Greek scientific and dialectical methods upon which Western legal education as we know it was founded by Irnerius in Bologna.[13] Some have come to dispute this reconstruction. They point to the fact that even Cicero, the orator who studied under the influence of the Platonic and Aristotelian Q. Mucius Scaevola, wanted to re-arrange law as a Stoic arsrather than as an Aristotelian science. Along with other factors, this confirms that “the method of the Roman jurists looked nothing like that of the Greek philosophers such as Aristotle.”[14]

While insightful, this debate does not let us appreciate that what is currently occurring to juristic practice and its teaching is the last declension of the transformation they both had gone through after the seed of the Western metaphysical tradition, based on reason’s transcendental essence and technical mastery of the world, had being planted in Greece with the Promethean myth.[15] Debating on the role that the Platonic-Aristotelian schools and Stoic thinking had in the further development of this process is certainly important but should only be done after uncovering the Agambenian zone of interaction, or indistinction, where the scientification of life and jusand the metaphysical construction of reality meet.

In this sense, another factor to consider when analysing juristic practice’s suffering is that metaphysics’ impact over reality has also altered the nature and modalities of human comportment. I refer to the substitution of action with rational behaviour, which occurred alongside that of experience with knowledge. This had pivotal repercussions on juristic practice’s development. Indeed, while law does not necessarily need our conscious intermediation to exert its regulatory functions, its juridical component requires us to inter-actfreely and define themselves as persons in Arendtian terms through an act of experience. When this self-defining form of interaction leads to a conflict of interests or rights, it is up to a figure, the jurist, among whom stands the judge, to solve it through the formulation of (and answer to) a quaestio juris(juridical issue).

The metaphysical substitution of action with reason-oriented behaviour and experience with knowledge has voided this task of its anthropological and sociopolitical significance. If humans no longer unpredictably inter-act, thus defining who they are as persons, but merely behave according to reason-oriented schemes of social interaction that may be mechanically planned, decoded, and known, there is no need for the coordinating function of juristic practice. Or, we may say, there is no need for the jurist to create social order by ‘norm-alising’ the instability and spontaneity of our actions.

In our global and transnational ‘flat’ world,[16] where human existence is constantly governed by the reason-informed ‘civilised economy’ and ‘good economic governance’ paradigms, this trend has reached its apex and drained the relationship between juristic practice and the human condition of its significance. The orthodox rhetoric according to which law provides reasons for action is part of the problem to the extent that it assigns a legitimising source to an immanent act of experience so that it can be analytically assessed, and thus, known—i.e. action is transformed into behaviour and experience into knowledge.

The Road Ahead

Law schools’ and juristic practice’s suffering is certainly expression of the broader crisis affecting the higher education system as a whole, particularly in the English-speaking world. This, in turn, is part of the crisis regarding what makes us human.

Arguably, any solution to such major problems cannot come from within the higher education system only. However, a good start would be to reflect on why the verb to educate derives from the Latin ex ducere, meaning to lead out, or extract something from something or someone. In its original declension, it referred to the teacher’s ability to identify the learner’s potentialities and nourish them in preparation for the adult life. That this should apply to higher education as well should be obvious. Unfortunately, though, universities have become places where experiential learning has left the scene to always more sophisticated, sterile techniques of knowledge production and consumption.

Uncovering (higher) education’s humanising nature would let us realise that merely forming future global and transnational law professionals for what some have defined as “the post-professional society”[17] does not help. Rather, we should understand that law is not a science and consequently, aim to train humansexperienced in law and global and transnational issues who are capable of working efficiently—and thus, making sense of themselves as persons—in a diffusionist regulatory landscape as teachers, solicitors/barristers, judges, or legislators. If we opt for this approach, then a counter-movement from self-dissolving knowledge and rational behaviour to self-affirming experience and action will be required.

The Law and Critique article from which this blog is based can be found here (link).

[1] Kennedy, David. 2016. A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy. Princeton: Princeton University Press.
[2] Hadfiled, Gillian. 2017. Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. New York: Oxford University press; Stratas, David. 2016. Keynote speech at the 2016 meeting of the Canadian Constitution Foundation, http://www.youtube.com/watch?feature=youtu.be&v=UxTqMw5v6rg(last accessed: June 19^th 2018); Barton, Benjamin H. 2015. Glass Half Full: The Decline and Rebirth of the Legal Profession. Oxford: Oxford University Press; Dewan Shaila. 2015. Judges Replacing Conjecture With Formula for Bail, The New York Times, https://www.nytimes.com/2015/06/27/us/turning-the-granting-of-bail-into-a-science.html?_r=1(last accessed: June 19^th2018); Susskind, Richard E., Susskind, Daniel 2015. The Future of the Professions: How Technology will Transform the Work of Human Experts. New York: Oxford University Press; Tamanaha, Brian Z. 2012. Failing Law Schools. Chicago: University of Chicago Press; Susskind, Richard E. 2013. Tomorrow’s Lawyers: An Introduction to Your Future. New York: Oxford University Press; id. 2010. The End of Lawyers? Rethinking the Nature of Legal Services. New York: Oxford University Press.
[3] Schiavone, Aldo. [2005] 2012. The Invention of Law in the West, Jeremy Carden and Anthony Shugaar trans. Cambridge (MA): Harvard University Press, 134.
[4] Ibid.
[5] Ibid. 135.
[6] Ibid. 92–98.
[7] Ibid. 112–127.
[8] Ibid. 203.
[9] Ibid.
[10] Ibid. 202
[11] Ibid.
[12] Ibid. 200.
[13] Gordley, James. 2003. The Jurists. A Critical History. Oxford: Oxford University Press, 12–18.See also Padoa Schioppa, Antonio. 2007. Storia del Diritto in Europa. Dal Medioevo all’Età cCntemporanea. Bologne: ilMulino, 92.
[14] Ibid. 12.
[15] Severino, Emanuele. 1989. Il Giogo. Eschilo: Alle Origini della Ragione. Milan: Adelphi.
[16] Friedman, Thomas L. 2007. The World is Flat 3.0: The Globalized World in the Twenty-first Century. New York: Picador, 51–59 and 201–239.
[17] Susskind, Richard E. and Susskind, Daniele. 2015. The Future of the Professions: How Technology will Transform the Work of Human Experts. 2015. New York: Oxford University Press, 105.