Redes y Actores sociales
REDES Y ACTORES SOCIALES
Negative dialectics places every concept into dialogue with its object—with what a concept seeks to articulate—without seeking a final reconciliation, or becoming nihilistic because of the impossibility of such reconciliation.65 One of my primary
concerns in this thesis is to examine what this means for the concept of law, and by extension, law’s rule. This is also one of the main contributions I seek to make through the thesis, to the extent that it succeeds in driving Adorno’s negative- dialectical philosophy into the realities of law.66
I begin by approaching the concept of law as the articulation of normativity. There are two ways to look at this. One is from the standpoint of law as the expressive subject that articulates the sentence, ‘the law is this’. From this perspective, law is not an object of study (‘the law’), but an expressive subject, ‘law’, which gives form to existence, as its object, always as a normative matter. By law: ‘the law is this’. And yet the view from this perspective is unsettled: the subject can see how every act of articulation, of expressing what ‘is’ (‘the law’), is a leap of faith, over what remains in between what is (in actuality) and what is predicated as ‘is’—how ‘this’ is and is not what it is expressed to be by law. This is about seeing the contradiction in law from the non-naïve perspective of law-as- subject, a contradiction that animates every expression of ‘the law’. The second perspective then switches standpoints, to take the view of the subject within jurisdiction, whose experience of law is neither wholly circumscribed by ‘the law’
65 See also Erik Doxtader, ‘Reconciliation - A Rhetorical Concept/ion’, Quarterly Journal of Speech,
vol 89, no 4 (2003).
66 Introducing Negative Dialectics, Adorno stated the aim of his book: ‘to drive it [negative
dialectics], according to its own concept, into the realm of reality’: Adorno, Negative Dialectics, Prologue.
as expressed, nor wholly outside ‘the law’. Rather than seeing ‘law’, as subject, this second point of view is about seeing ‘the law’, as object, from the perspective of the subject whose experience is the very object of law. And the view from here is equally unsettled, with the subject’s experience of law neither as predicated nor simply free from predication.
In sum, these two viewpoints are concerned with law as a subjective and as an objective phenomenon: from the first perspective, how law gives form to the world, as a subjective matter; and from the second perspective, how the law takes form in the world, as an objective matter. The point, however, is that neither view is adequate on its own. As Adorno writes, ‘dialectics [is] not a standpoint’.67 As a
dialectical phenomenon, law is both the positive expression and what remains more and other than expressed. Just as negative dialectics is directed at the consistent consciousness of non-identity, a negative-dialectical approach to law is directed at making law’s non-identical aspects critical to its concept. In more concrete terms, it is about making the prisoner’s experience central to the concept of the rule of law, rather than treating him as excess that must be remanded in a corrections facility in order to uphold the absoluteness of the rule-of-law concept.
Approaching law in this way is not just an academic exercise. As an academic exercise, its importance is that it makes law essentially plural, by bringing—and more importantly, by keeping—law in dialogue with the subjects who enliven its forms as a normative matter. The result is a ‘legal pluralism’ that locates the pluralism in law, rather than being a description of the relation betweendifferent legal orders, as it is most often thought about.68 By approaching
law as only really meaningful, or ‘whole’, when seen in relation to the subjects who are within jurisdiction whilst remaining excluded from its expressions as a normative matter, pluralism becomes law’s essential condition. But it must be
67 Ibid, 16-18.
68 For a review of this literature, see Miranda Forsyth, A Bird that Flies with Two Wings: The Kastom
and State Justice Systems in Vanuatu (Canberra: ANU E Press, 2009), Chapter 2. See also Sally Engle Merry, ‘Legal Pluralism’, Law and Society Review, vol 22, no 5 (1988). I find the most compelling approach to legal pluralism in Macdonald’s work on a ‘critical legal pluralism’. For an introduction, see Martha-Marie Kleinhans and Roderick A Macdonald, ‘What is a Critical Legal Pluralism?’,
Canadian Journal of Law and Society, vol 12 (1997). Macdonald develops this further in Roderick A Macdonald, ‘Custom Made - For a Non-chirographic Critical Legal Pluralism’, Canadian Journal of Law and Society, vol 26, no 2 (2011). See also Austin Sarat and Thomas R Kearns, ‘Responding to the Demands of Difference: An Introduction’, in Cultural Pluralism, Identity Politics, and the Law, ed Austin Sarat and Thomas R Kearns (Ann Arbor: University of Michigan Press, 2001). I address the question of law’s pluralism in Part 2 of Chapter 3.
emphasised: this is a dialectical, and not an analytical, approach. The result is not an array of individuated laws, separated into an indissoluble pluralism. As much as law is seen to be essentially plural, law is also seen to be essentially singular. On this approach, law is as much in-common as it is experienced in different ways.
A negative-dialectical approach thus enables one to appreciate the chasmic structure of law, whereby law is simultaneously singular, incorporating all subjects within jurisdiction, and plural, taking place in non-identical ways, enlivened by the subjects over whom law rules. This is important for understanding law and its rule as a common experience, but it is especially important when it comes to the question of what is taking place in the rule of law in Liberia. That is because it provides a way of approaching a problem that has confronted scholars and practitioners working in the field of ‘law and development’ or ‘rule-of-law promotion’ since the earliest colonial interventions.69
The ‘problem’ is how to institute a singular rule of law in a situation of legal pluralism.70 On one side, the answer to this problem is to attempt to erase all
traces of pluralism. This is the attitude of many of the members of Liberia’s national legal profession, who see other expressions of law, whether ‘customary’ or ‘traditional’, as eventually withering away with modernisation.71 It is also the
attitude of many Western government officials, who do not even recognise the existence of different expressions of law within the nation-state.72 On another side,
69 For a history of this field, see David M Trubeck, ‘The “Rule of Law” in Development Assistance:
Past, Present, and Future’, (unpublished paper, 2003):
https://media.law.wisc.edu/s/c_8/mg3md/ruleoflaw.pdf. See also David M Trubeck, ‘Law and Development in the Twenty-first Century’, University of Wisconsin Law School Legal Studies Research Paper Series Paper No. 1178 (2011); Michael Zürn, André Nollkaemper, and Randy Peerenboom, eds, Rule of Law Dynamics: In an Era of International and Transnational Governance
(Cambridge: Cambridge University Press, 2012); John Hatchard and Amanda Perry-Kessaris, eds,
Law and Development in the 21st Century: Facing complexity in the 21st Century (Oxon: Routledge, 2003).
70 For two recent studies of this problem, see Forsyth, A Bird that Flies with Two Wings: The Kastom
and State Justice Systems in Vanuatu; Laura Grenfell, Promoting the Rule of Law in Post-conflict States (Cambridge: Cambridge University Press, 2013). For another approach to this problem, see Brian Z Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’, Hague Journal on the Rule of Law, vol 3, no 1 (2011).
71 I discuss this in Part 2 of Chapter 7. Grenfell makes a similar observation with respect to the
attitude in many international organisations: see Laura Grenfell, ‘The UN and "Rule-of-Law Constitutions"’, in Strengthening the Rule of Law through the United Nations Security Council, ed Jeremy Matam Farrall and Hilary Charlesworth (Oxon: Routledge, 2016), 128.
72 For instance, in 2007, in explaining why Australia voted against the United Nations Declaration of
Indigenous Peoples Rights, Australia’s Ambassador to the UN, Robert Hill, argued that ‘[c]ustomary law is not “law” in the sense that modern democracies use the term; it is based on culture and tradition’, effectively limiting ‘law’ properly so-called to ‘State law’, and by startling implication, leaving Liberia, amongst many other parts of the world where the law of the state is dysfunctional
where differences in law are recognised, the answer is to establish a hierarchical Constitution that places ‘other law’ in a position of subordination to a higher (national) law, with any contradiction in law resolved in favour of the higher law. Yet another approach might advocate a radical separation of law, seeking to avoid contradictions in law by decentralising legal authority.73
However, none of these responses takes seriously the challenge posed by law’s pluralism. This is the same challenge noted at the beginning of the Introduction: to take seriously the implications of the contradiction in law, which manifests in its simultaneous singularity and plurality. This problem cannot be wished away, nor can it be overcome through the establishment of a hierarchical constitutional system or the decentralisation of legal authority. The problem remains in any case because it is the condition of law in its every expression.
A negative-dialectical approach enables one to appreciate this—the chasmic structure of law, and its rule—and therefore to appreciate the nature of the problem of trying to institute the rule of law in Liberia (or elsewhere). More critically, this approach then enables one to analyse the different responses to the contradiction—to see how these responses inform the rule of law as a material phenomenon, and how the rule of law provides a medium for them to take place.