Law and injustice:
Is there an exit from the post-modern maze?

Bill Bowring
Bill Bowring looks at ways of theorising the relationship between law and justice, and between law and society. He argues that a fruitful approach to critical legal theory is to be found in the 'critical realism' associated with Roy Bhaskar.

From Soundings issue 2 Spring 1996

This article seeks to situate the preceding sections within a paradoxical contemporary phenomenon: the infiltration of so many areas of contemporary life, riddled as they are with uncertainty and risk, by the law (which is not the same thing, in most cases, as justice). This is what the theoretician of public law Martin Loughlin has described in the context of local government as 'juridification': the replacement of convention and informality by increasing legal formality, and recourse to and intervention by the courts. In effect, in the absence of any other means of collectively deciding on right or wrong, law becomes the only framework for human judgement. I aim to explore four of the ways in which this process has been theorised, and to ask whether postmodernism and the ethics of 'alterity', currently fashionable in critical legal circles, hold any answers. The issue at stake, I argue, is human emancipation, for which realism, in a special sense which I explain, is a necessary precondition.

The dominance of law
What is to hold contemporary Western society together? People no longer define and constitute themselves through tradition: traditions now for many people in
the world are commodities, part of the virtual worlds of advertising and tourism.
Moreover, even religion is no longer the pervasive and inescapable matrix of the lived world. It is a matter of choice. Even religious fundamentalism is not a return to roots, more a chosen, if perhaps subjectively inescapable, act of rebellion. In every society religion has, since time out of mind, shared with law, with which it is so intimately connected, its pre-eminence as a supremely complex and characteristically human construct. But today it is law rather than religion which is increasingly called upon to provide the remedies and safeguards which society craves in an ever more unpredictable human environment.
Many of the other pieces collected together in this section of Soundings concern the failings and disasters of the law, its inadequacy in the face of deprivation and oppression. Yet without exception the remedies put forward by the various authors, even John Griffith with his well-founded distrust of the judges, or Mike Mansfield with his unrivalled experience of law at the coal-face, invoke the law. That is, law is either challenged to become more just, more congruent with social needs; or is asked to act as a shield against oppression, or an instrument for social change.
There was a time when socialists thought that the law and lawyers, like the state, would wither away. Law would cease to be necessary when the production relations became transparent and just. In the years which followed May-June 1968, the ideas of the early Soviet theorist Yevgeny Pashukanis, who asserted that bourgeois law reflected the capitalist system of exchange, were widely read. But E.R Thompson, in Whigs and Hunters, signalled a sea-change within Marxist thought.1 Responding to the lack of democracy, and history of human rights abuses in the USSR, he undertook his rehabilitation of the rule of law. He insisted that even in a socialist society the rule of law would continue to be an essential component of democracy, and must provide protection against the arbitrary exercise of authority.

The hegemony of human rights, at home and abroad
This is the context in which so many on the British left now seek legal and constitutional answers to society's ills. Charter 88 is no longer quite so prominent, but perhaps this is because there is a growing political consensus, most of all among the senior judges, that a Bill of Rights must be enacted; or that at any rate the European Convention on Human Rights must be incorporated into English law. Constitutional reform is at the centre of Labour's agenda. As militant organised labour and mass left politics have shown signs, at least in Britain for the moment, of becoming exhibits in the museum of working-class history, every pressure group tends to make use of the rhetoric of legal rights, flawed as this language is by its origin in liberal theory. Patricia Williams, the black American legal academic, speaks of the 'alchemy of race and rights' - the base metal of the language of power transmuted by its capture for the struggles of the oppressed into the gold of an authentic weapon for emancipation.2 At the same time, Tory rule since 1979 has been marked by a ceaseless flood of new legislation and regulation, whether seeking to eviscerate local government, or to inhibit public protest. Even that cornerstone of the 'rule of law', the right to silence, has been undermined by the Criminal Justice and Public Order Act 1994, which also defines and restricts 'rave' parties, and criminalises hunt saboteurs.
Much the same processes can be seen at work in the international arena. Every state in the world now uses and abuses the rhetoric of human rights. The most recent universal human rights instrument, the United Nation's Convention on the Rights of the Child, opened for signature as recently as 1989, yet came into force in 1990 and has now been ratified by the great majority of states. It may be the first such treaty to achieve universal ratification. The United States of America, always slow to fall in line with the international human rights consensus, felt in 1992 obliged to ratify the International Covenant on Civil and Political Rights of 1966. Not surprisingly, the US ratification is so hedged about with reservations as almost to negate itself. But it remains the case that no state in today's world, even those most criticised by Amnesty International, will now openly boast of the regular application of torture or other gross violations of human rights. The British government was acutely embarrassed by the recent decision of the European Commission on Human Rights in the case of the Gibraltar shootings -
the Death on the Rock case.
But perhaps the most significant victory for the new 'dominant discourse' of politics was the abrupt abandonment by the Soviet leadership, led by Mikhail Gorbachev and Aleksandr Yakovlev from 1985 onwards, of Marxism-Leninism -otherwise known as scientific communism - and its replacement by the ideology of 'common human values', to be brought to life in a 'rule of law state'. This has meant, above all, that pride of place is now given in the constitutions and laws of the states now 'in transition to democracy' to the civil and political rights which were once the ideological weapon of the West. At the same time, these states witness the abandonment of the social and economic rights to work, to free education and health care, and to housing, which were the more or less redeemed pledges of the former regime. All the states on the eastern side of the Iron Curtain have rushed to join the Council of Europe, and to subscribe to its European Convention on Human Rights. Ukraine and Moldova are at the time of writing the most recent recruits, and Russia will surely follow. These states join for the privilege of letting all those within their jurisdiction, whether citizens or not, apply to the Commission and Court of Human Rights at Strasbourg to complain about violations of their rights.
This is not to deny that there is more than a degree of cynicism involved here. Russia is the state whose government in 1993 trashed its Constitution and shelled its own Parliament into submission, and in 1994-1995 perpetrated a number of egregious massacres in Chechnya - Shamashki is a name stained with blood. Russia's first Human Rights Ombudsman, Sergei Kovalyov, lasted only one year before his dismissal both by the State Duma, and by his immediate boss, President Yeltsin, because of his outspokenness not only on prison conditions and racist housing registration policies, but also for his stand on Chechnya. Turkey, a long-standing member of the Council of Europe, has oppressed its Kurdish minority through the mass destruction of villages, murder, torture, and gross violations of the right to freedom of expression, and now finds itself arraigned before the European Commission on Human Rights in respect of hundreds of applications.
In spite of these limitations, as acute a critic of modern capitalism as Marshall Berman has recently applauded the inexorable spread of human rights language as an important step towards human emancipation.3 In his view, despite the fact that many people, movements and governments are still trying to smash the rights of man, 'this will be harder than it was two centuries ago, because the idea of human rights today is far more historically grounded and concrete, attuned to experiences that so many people around the world really go through and desires they really feel.' And the visionary Portuguese scholar Boaventura de Sousa Santos sees the discourse as a terrain which can and must be captured by the forces of emancipation.4 It is surely the case that the language of rights, dressed as it is in the natural law doctrines peculiar to the West, has already achieved global currency, and will last well into the next millennium.How has this process been theorised?

The liberal quandary
Most British judges, if they have thought about the question of the relationship between law and society, and the increasing process of juridification - and many have - probably subscribe to one of the contemporary versions of liberal theory on offer. The pre-eminent authors of contemporary liberalism are John Rawls and Ronald Dworkin. They both subscribe to theories of justice - justice as fairness. For Rawls, at least in an earlier incarnation when he wrote A Theory of Justice, the norms of justice can be reliably identified by a kind of thought experiment, in which the reader is encouraged to place herself in an 'initial position', behind a 'veil of ignorance', in which nothing is known of inherited life chances or inequalities.3 It is then a question of what the rational subject would desire for everyone. Under pressure from communitarian critics, Rawls has more recently taken the view that liberal values are historically and contingently located in western capitalist societies (or 'well-ordered democratic societies', as he defines them), and can be defended only from that position, with all its contradictions.
For Dworkin, who sympathises with Rawls, the law can and should appeal to strong principles of justice, what he describes as 'rights as trumps'. This position appeals to many at the sharp edge of constitution-building: Kader Asmal, who played a leading role in negotiating South Africa's interim constitution, has placed particular emphasis on Dworkin's work. Moreover, Dworkin has taken a public stand castigating the decay of civil liberties in Britain, and calling for the incorporation of a Bill of Rights.6 But unfortunately for the legitimacy of Dworkin's system, his principles of justice are to be derived ultimately from the values held by the community at large, not the best recipe for the defence of unpopular minorities, even if rights are to be trumps. Furthermore, both Rawls and Dworkin are heavily influenced by American philosophical pragmatism and legal proceduralism, and are its contemporary exponents. Their project is hegemonic in character. It is universalist, in the sense that 'justice as fairness' is to be applied to everyone, everywhere. It seeks to establish foundations for right conduct in government and society. It is no accident that Dworkin s best known book is entitled Law's Empire.7
These are attractive doctrines. They admit of a certain egalitarianism, based as they are on distributive justice. For example, there is Rawls' 'difference principle', that social and economic inequalities are only justified if to the greatest benefit of the least advantaged members of society. But in the end they are hardly subversive of the machinery of law which has been responsible for so many miscarriages of justice.

Critical legal theory and postmodernism
Beginning in the 1970s, first the US and then Britain saw the rapid growth of a movement of 'critical lawyers', largely from academic backgrounds. This was quite different from the generations of lawyers, going back in Britain to Ernest Jones the Chartist, barrister, editor and convicted state criminal, and Fredrik Engels's friend and translator Sam Moore, who had sided with the oppressed. At first, these new critical lawyers drew from Marxist critiques of law and rights, and sought to place law in its social and economic context, as an instrument of state power and policy, or as an obfuscation, legitimising exploitation and oppression. In the US, rights were 'trashed' - made to display their indeterminacy and incoherence, and their ultimate subservience to the interests of the oppressors. Rights in particular, or 'rights discourse' talk about or rhetoric of rights were seen not only as ambiguous and problematic, but as an integral part of the machinery of oppression. In more recent years in Britain, critical legal theory has moved away from Marxism, and drawn on a wider range of theoretical inspirations; but it has continued to see itself as the enfant terrible of contemporary legal studies. It delights in shocking what it takes to be the legal establishment.'8 Each year, at a different university, there is a gathering of several hundred academics under the banner 'Critical Legal Conference'. There is even a more radical student offshoot, the 'Critical Legal Groups', with their own annual conference. These meetings are characterised by an extraordinary pluralism, even eclecticism.
Recently, however, this pluralism has tended to be skewed by something of a new hegemony. In Britain especially, critical lawyers have increasingly been influenced by the theories of French thinkers such as Jean-François Lyotard and Jacques Derrida, loosely described as post-modernism; they have become highly critical both of rights discourse and of Marxist economic determinism. (Of course, Derrida has somewhat disgraced himself in the last couple of years for some admirers, in his book
Spectres of Marx, by revealing himself as - perhaps - a closet Marxist and supporter of human rights doctrine.9)
The post-modernists condemn what they describe as foundationalism - the idea that there is a 'foundational' real reality, which can be distinguished from unreality or falsehood. For example, they dismiss the Marxist contention that theory is the ideological superstructure of economic processes. They disparage the 'grand narratives' of Marxism and other theories drawing from the rationalist traditions of the enlightenment. They insist that since Auschwitz and the holocaust it is no longer possible to place events and ideas in a single narrative of progress, or within a theory capable, at least in principle, of explaining human and natural phenomena. They deny the possibility of progress. Indeed, they claim that since German-speaking Europe was the home of the thinkers who epitomised the enlightenment - Kant, Goethe, Hegel, Marx and Freud - yet still gave birth to fascism, it is a delusion to believe that the problems of humanity can be solved through the exercise of rational thought. They argue that, in the name of enlightenment, difference, in particular the voices of women and minorities, has been suppressed; and that the white male voices which have been heard have been characterized by 'binary oppositions' - good/bad, true/false, working-class/ruling class; furthermore, there can no longer be a belief in the existence of a grounded subject of theory, able to discriminate between truth and falsity, or to judge between competing viewpoints or ethical considerations.
But most of all, following the linguistic turn' in philosophy, in which the object of intellectual engagement is not the world and its living people, but language, discourse and text - theory has nothing more to do with a 'real' world capable of generating criteria of truth. Each voice or story has equal validity with all others. The thinker is to discriminate between rival accounts not by way of reasoned judgment, but instead, at best, through a process akin to aesthetic appreciation. This is, of course, a recipe for relativism, or even nihilism. And an approach to the law based on such theories can hardly be described as critical, much less subversive; it fails to ground a response to the evident failings of the British legal system, and the chasm between law and justice, since it has no evaluative criteria, and no theory of the relationship between law and justice.
A number of critical legal scholars who subscribe to the theories described above have theorised an ethical dimension to post-modern legal theory, albeit recently elaborated. It is argued that law and justice occupy radically different universes, the synchronic and diachronic. Law falls within the realm of reason, thought and analysis, occupying lived time and space. Justice, on the other hand, is instantaneous, outside time. Following the French Jewish philosopher Emmanuel Levinas, justice is said to come before all thought and judgment, in the inescapable appeal of the Other, whose suffering face confronts each of us and demands a response. This school of thought has found recent expression in the book justice Miscarried: Ethics, Aesthetics and the Law by Costas Douzinas and Ronnie Warrington.10 In this work they describe a number of miscarriages of justice, and, focusing on the notorious case of the Tamil refugees, argue for a radical shift in the ethical perceptions of judges, a new concern and compassion for the other. But the approach is in the end ahistorical and ungrounded in any social context. By way of prescription, the judges are called upon to do what they almost certainly consider they are doing anyway - that is, hearing both sides, and giving more concern to the suffering other.

Habermas and discourse ethics
Is there any other project capable, in the realm of theory and critique, of reconnecting law and justice? The most intelligent analysis of the liberal thought of Rawls and Dworkin, and the most uncompromising opposition to the post¬modern fashion, comes from a contemporary German, Jtirgen Habermas - whom Berman describes as 'the most serious theorist of human rights today'. Habermas is already known for his lucid account of the legitimation crisis of contemporary capitalism; and for his analysis of the struggle between the ever-encroaching systems (whether of money or of welfare) of modern society and the intimate lifeworld inhabited by the human person. Habermas has developed his own account of the ethical perceptions of women and men in a world in which there is no uncontested conception of what constitutes the good life, and in which people find themselves cut adrift from traditional beliefs and values. He calls his theory 'discourse ethics'. He argues that what goes on in relations between human beings is 'communicative action, in which communication is only possible on condition that speakers adhere to certain principles, in particular the sincerity of what they say, and its susceptibility in principle to external verification and modification through argument.
Thus, his theory of ethics does not pretend to tell us what the good life is, or how we should decide important moral issues. Instead, it explains the ethical conditions for arriving at such decisions in a rapidly changing society in which there are no moral certainties. But this is not Kant's system, in which the individual, through a process of ratiocination arrives at universalisable maxims -the categorical imperative. Habermas takes on board Hegel's critique of Kant. Habermas' discourse ethics is intersubjective; it can only be worked out in and through society, between persons who have attained the capacity to recognise the dignity and autonomy of others as a precondition for their own human realisation. It can be no surprise, therefore, that Habermas has increasingly turned his attention to questions of law and justice. His latest massive text is entitled Facticity and Validity (Faktizitdt und Geltung, 1992, as yet untranslated), two words which closely parallel law and justice. It sets out to show how a constitutional state, based on rational principles of proceduralism and human rights, is possible. It contains powerful critiques both of the liberalism of Rawls and Dworkin, and of the postmodern response, and seeks to show how a comprehensive theory of rights can be built on the foundation of discourse ethics. But despite its impressive architecture, Habermas's theory has little to say about the economic and social injustice inherent in modern capitalism, and can, indeed, be read as an apologetics or justification of the modern German state.

Realism, and a (qualified) return to Marx
Is there any other theoretical framework for genuinely critical legal theory? The British left has long had an uneasy affinity with Marx. On the one hand his critique of capitalist exploitation continues to resonate. But on the other, as is well known, Marx was a fierce critic of bourgeois rights, the civil and political rights of the American and French revolutions, as much in the Critique of the Gotha Programme as in the much earlier On the Jewish Question.
It has been doubted whether Marx had other than a contradictory and inadequate approach to ethics. For Steven Lukes, Marx's was a narrow and impoverished view of the meaning of the rights of man... it treated them only as symptomatic of the individualism and contradictions of bourgeois life.11 According to Christine Sypnowich, Marxists argue that the institutions of justice are historically specific to societies based on private property. Furthermore, rights find their fullest expression in the society of private property par excellence, as the super-structural effect of capitalist relations of property and exchange.12 Tom Campbell also comments that 'it is unlikely that there can be any Marxist indulgence for the pretensions of those theories of justice which present themselves'as the embodiment of universal truths which have application to any and every stage of historical development'.13 Nevertheless, among a number of recent commentators, Philip Kain suggests that Marx was, on the contrary, seeking to transcend equal rights and justice; the justice of the communist society being an ideal which we seek to realise.14
But there is another level at which, arguably, Marx can still provide a vital emancipatory resource. As Etienne Balibar has recently pointed out language was for Marx as well as Habermas a 'communicative action'.13 Marx put it this way: language is practical consciousness that exists also for other men, and for that reason alone it really exists for me personally as well; language, like consciousness, only arises from the need, the necessity, of intercourse with other men'.16 But Marx does not subject such action a priori to any logical or ethical norm, instead tying it firmly to labour, production and history. Law, as a discursive practice, inseparable from language, is no less historically and materially grounded. On another level, the symbolic structure common to both economic and juridical 'fetishism' is generalised equivalence, which subjects individuals, abstractly and equally, to a kind of circulation, whether of values or of obligations. Marx's critique of human rights enables such rights to be seen both as rhetoric which serves to disguise exploitation, and as a means by which class struggle by the oppressed can find expression - for example, in his time, 'the modest Magna Carta of the legally limited working day', by which the workers have compelled 'the passing of a law, an all-powerful social barrier by which they can be prevented from selling themselves'. That is, rights and the law can be understood as objects of struggle.
Of course, Marx is no longer fashionable, in academe or for New Labour. But in recent years there has emerged in Britain an attempt to complete Marx's philosophical project, and at the same time to provide not only a theory of society, but also a practical ethics, capable of guiding human emancipation. This school is known as 'critical realism', and has seen itself as a socialist philosophy, a resource for the socialist movement.17 It is counterposed to positivism as much as to liberalism. Roy Bhaskar, its progenitor, started as a philosopher of science, arguing for realism - the intransitive and deep nature of the world, independent of human observation - as against the fashionable 'social constructivists' who see all human knowledge, including scientific research, as essentially limited by and to language - that is, as human constructs, incapable of justification by reference to any world outside.
In the social sciences, Bhaskar has worked to undermine the traditionally impenetrable barrier between 'fact' and 'value': the doctrine that it is logically impermissible to argue from what is, from knowledge of a state of affairs, to what ought to be, or what one ought to do. Instead, Bhaskar argues that from research into the deep and structured workings of modern society, based as it is on exploitation and oppression, the necessity of action may be derived. Bhaskar has a transformational conception of social activity: social structures exist only by virtue of the human activities which reproduce or transform them, activities for which such structures are in turn a necessary condition. Furthermore, emancipation means the transformation of such structures, the transition from unwanted, unneeded and oppressive sources of determination to wanted, needed and empowering ones. In his most recent work, particularly in Dialectic, the Pulse of Freedom, Bhaskar argues for moral realism and ethical naturalism.18 This leads him to a greatly expanded understanding of rights in the context of human emancipation. But can such theoretical underlabouring serve the interests of critical lawyers?
More recently, a number of critical legal scholars, notably Alan Norrie, have begun the application of Bhaskar's methodology to law - particularly in the field of criminal law.19 There are two requirements for such an approach. First, it must constantly be borne in mind that society and its structures, including law, are not reducible to individuals and their activities, but rather to the 'persistent relations' between individuals and groups - of which law is an essential example - and the relations between these relations. By virtue of its subject-matter, this requires a dialectical approach. Second, law must be re-linked to a realist ethical foundation, capable of drawing conclusions for action from research carried out in Accordance with the principles described above. J
British lawyers - or at least a small group of them - have an honourable record of placing themselves at the service of the oppressed, and in particular the organised working class. But such engagement has either been informed by Stalinist Marxism, as with D. N. Pritt QC, one of the founders of the Haldane Society, or by one of the varieties of neo-Marxism. There has been little theory-guided practice. But the present crisis of British constitutionalism, and the widespread public dissatisfaction with the machinery and content of justice, calls for serious analysis guided by methodology capable of judgment and of prescription. It may well be that critical or dialectical realism, in one of its materialist, non-relativist variants, can provide such essential tools.

1. E.R Thompson, Whigs and Hunters: The Origin of the Black Act, Penguin, Harmondsworth 1975.
Law and injustice
2. Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor, Harvard, Cambridge Mass. 1991.
3. Marshall Berman, 'Modernism and Human Rights Near the Millennium', Dissent, Summer 1995.
Law and injustice
4. See a report of a keynote address by Santos, in Bill Bowring, 'Human Rights in the New World Order', Socialist Lawyer, Nol9, 1993.
5. John Rawls, A Theory of Justice, University Press, Oxford, 1971.
6. Ronald Dworkin, A Bill of Rights for Britain, Chatto Counterblasts, London 1990
7. Ronald Dworkin, Law's Empire, Fontana, London 1986.
8. Alan Hunt, The Critique of Law: What is 'Critical' about Critical Legal Theory?, in Fitzpatrick and Hunt (eds), Critical Legal Studies, Blackwell, Oxford 1987.
9. Jacques Derrida, Spectres of Marx, Routledge, London 1995.
10. Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, Harvester Wheatsheaf, 1994. See also Zygmunt Bauman, Postmodern Ethics, Blackwell, Oxford 1993.
Law and injustice
11. Steven Lukes, Marxism and Morality, Oxford University Press, Oxford 1988.
12. Philip Kain, Marx and Ethics, Oxford 1988.
13. Christine Sypnowich, The Concept of Socialist Law, Oxford University Press, Oxford 1990.
14- Tom Campbell, justice, Macmillan, London 1990.
15. Etienne Balibar, The Philosophy of Marx, Verso, London 1995.
Law and injustice
16. Karl Marx, German Ideology, Lawrence & Wishart, London 1970.
17. Bhaskar, Arthur, Benton et al, A Meeting of Minds, Socialist Society, 1991.
18. Roy Bhaskar, Dialectic, the Pulse of Freedom, Verso, London 1994- For a recent application of critical realism in the field of sociology, see Margaret Archer, Realist Social Theory: the Morphogenetic Approach, Cambridge University Press, Cambridge 1995.
19. Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law, Weidenfeld & Nicolson, London 1993.