Val was a proper old-school scholar, interested in ideas for their own sake and driven to understand and respond to the injustices of the world. As a serious intellectual she was not interested in academic trends or popularity, but in working through a set of questions and problems – often with cigarette in hand. As an Australian who came to live in Hamburg, Germany, her thought constantly returned to the historical and ongoing process of Australian colonisation and to law’s complicity in colonial violence and genocide. 

The Wrong of Law builds upon Val’s long intellectual collaboration with her partner, Uwe Petersen, and his Hegelian approach to mathematical logic. Val’s work thus draws connections between mathematical logic, philosophy, social theory and law, and in this respect the text is often as challenging as it is unconventional. In the following reflections I try to draw out a number of key ideas from The Wrong of Law. It is only a partial account, and speaks as much to the text as it does to many conversations I had with Val who was a dear friend. 

The Wrong of Law is a critique of law as a mode of thinking, as a discipline, which is unable to be surprised by itself. From the perspective of critical legal theory, law’s inability to be surprised by itself is a limitation, it means the disciplining structures of modern legal formalism, positivism and analytic jurisprudence (Hart, Dworkin, Raz) block moments of critical self-reflection, rendering even ‘progressive’ forms of legal judgment and legal analysis fundamentally limited and naïve. However, for the operation of legal systems which have a functional role in maintaining social order, inequality, oppression and colonial violence, this lack of reflection and refusal to be surprised by itself is powerful, it is part of law’s very horrible strength. 

Central to Val’s account is Hegel’s critical philosophy, in which the role of contradiction, paradox and antinome, play a productive, constitutive role in thought. Hegel’s position sits in contrast to a long tradition of orthodoxy in legal, philosophical and logical thinking, in which contradiction is seen as an error, as irrational, as something to be avoided. For Hegel, contradiction is something like the motor of reason, it is productive, it is necessary. Contradiction shows the limits of an aspect or moment within thought, a point where thought strikes up against itself, and points also to the need for thought to leap, to be creative, to undo and surpass a particular thought determination and therefore to think differently. 

Hegel’s Logic^[1] stresses the central operation of contradiction within thinking, or within reason more generally. Hegel offers a methodological account of the different ways in which a reflective, logical space opens up at the level of thought determinations and concepts. Within this, Val’s account emphasises the key operation of abstraction for Hegel. Thinking operates abstractly, via creating abstract thought determinations. But thinking also, when it is open to reflecting critically and speculatively upon itself, also is capable of recognising the limitations of each abstract thought determination. It does so by emphasising and exposing the implicit and often hidden presuppositions, moments of dependency in content and form, and points of paradox and contradiction. By holding onto both the abstract moment in a thought determination, and its dialectical relation to its many others, thinking is able to grasp a more concrete perspective – albeit one which is itself limited and subject to contradiction. 

In many ways the Wrong of Law is a methodology, and within this Val sketches out a productive tension between Hegel and Marx. For Hegel, concepts, abstractions in thought, have power over us in the social world, they frame our thoughts, we think through them – like the traditions of law and political economy shaped by liberalism. For Marx, these concepts are also ideological, they are moments of exploitation and oppression and the form of a specific, historically contingent operation of power within modern capitalist social and economic relations. For Val, Marx is his most Hegelian in his discussion of the commodity form within Volume 1 of Capital.^[2] The commodity form is a moment of abstraction, a creation of a form of value out of social-material relations in which – as exchange value – the commodity becomes a mystical object, detached, a fetish object, treated and worshipped as having value in its own right. 

As per Marx’s critique, classical liberal economics cannot see past the immediacy of the abstraction that is the commodity fetish, it refuses to be surprised, and in its self-imposed blindness wields the abstraction across the market, the state and international relations with profound violence and destruction. For Val, the liberal legal order operates with the same level of blindness and institutional violence. Even in profound moments of judicial reckoning with colonialism and the imperial foundations of the state, as set out in multiple Australian High Court legal judgments, the judiciary, more often than not, remains immune to surprise. 

In terms of method, the Wrong of Law holds onto a number of different positions simultaneously. In one sense Val sides with Marx against Hegel. Whereby we must not naively affirm these monstrous abstractions which have a hold over us, these reified beasts with lives and powers of their own – whose mysticism obscures the variety of historical, political, class, gender, racial and social struggles which exert power unequally. In another sense, Val sides with Hegel against Hegel. Siding, in part, with the Left Hegelians of critical theory (Lukács, Bloch, Adorno, Marcuse, Gillian Rose) against Right or Conservative Hegelians (Schmitt). In this dialectical and speculative logic is always a critical project of social theory in which the radical motor of critique – contradiction – is understood as unfinished, future-leaning, filled with potentiality and restless. This restlessness is not just one of ideas, it is at work in the irrational rationality of social forms, and at work across social and material life.

In a third sense, Val sides with Hegel in emphasising the importance of the power of abstraction – as an artifice of reason which when thought critically opens onto to a logical space in which thinking makes creative leaps necessary for emancipation only when attuned to its own capacity for wrong. This means holding onto both the power of abstraction and its limits when viewed dialectically and relationally. The Wrong of Law thus demonstrates how contemporary legal thought – liberal, capitalist, colonial – constantly shuts down a critical, dialectical, logical space. In showing this Val also points to a radical alternative, to the idea of legal thinking which might hold itself open to the idea of thinking and reasoning through the framework of a dialectical logical space full of contradiction. In this sense the Wrong of Law asks legal theorists, judges, lawyers to do a certain kind of work. This involves unlearning legal orthodoxy, and instead, learning how to get to a position in which you can come to see thought – reason – as being surprised by itself.  

Tarik Kochi is Professor of Legal and Political Theory, University of Sussex, U.K.

^[1] G.W.F. Hegel, Science of Logic, A.V. Miller (tr.) London: Allen and Unwin, 1969; G.W.F. Hegel, The Encyclopaedia Logic: Part I of the Encyclopaedia of Philosophical Sciences with the Zusätze, T.F. Geraets, W.A. Suchting and H.S. Harris (trs.) Indianapolis: Hackett, 1991.

^[2] K. Marx, Capital, Vol. 1, B. Fowkes, (tr.) London, Penguin Classics, 1992.