Justice

Karen Tani at the Legal History Blog has drawn attention to Allan Beever's new book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (OUP, 2013). The argument fron the publisher:

    Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

    In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

    A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

Strictly speaking of the historical argument- that sounds rather pursuasvie to me. We have a very difficult time thinking about the relationship between political philosophy and public law (or "public philosophy") on the one hand and private law on the other. The most striking example of this difficulty that comes to mind, at least for me, is the concept of equity. We have strong, broad historical and theoretical treatments of the subject (think of Peter Hoffer's Law's Concience, David Lieberman's The Province of Legislation Determined (a personal favorite of mine), or the work of Drucilla Cornell, or along those lines Derrida's famous essay in Deconstruction and the Possibility of Justice. That being said, the relationship between the concept of equity and the jurisdiction of equity is understudied. Good places to look right now, I have found, are in law and literature- Daniela Carpi's own work and edited volumes, including The Concept of Equity and Practiging Equity, Addressing Law, and Bradin Cormack's A Power to do Justice, and in legal history- Ian Williams of University College, London on the practical creation of maxims in late medieval and early modern legal theory.

Chancery courts at all levels of various constitional orders were controversial in the early modern British Atlantic world precisely because they were local sites for configuring jurisdictional and judical power (think of the political situation behind the Zenger case, or Jefferson's pet project of instituting a High Court of Chancery in Virginia, to say nothing of his equity commonplace book). Chancery, in other words, was shot through with larger, open-ended questions at play in English, British, and British American constitutionalism about who judges and where (and for whom and for where) they get to do it. Contests over conciliar courts (from the Star Chamber on down) were fundamental fights about sovereignty itself. 

Now in terms of political theory, one of the many reasons I remain skeptical of the perpetually asserted importance of Carl Schmitt is that his notions of the state of excpetion and political theology would not have struck anyone in the early modern world thinking about equity as particularly insightful or original. It has long been understood that there is a point at which positive if not all of customary law breaks down, loses coherence, or becomes suspended, and a good deal of the history of legal and political thought has been concerned to identify just what that point is and when or where it should be or simply is reached, and what should happen when it is reached. Are we standing then in the presence of natural law, a transcendent justice, and how do human institutions, or human beings themselves, acknowledge that point and deliver that justice without becoming, or at least appearing to become, either the object or instrument of sheer force of sovereign will? These are questions broached by More and Hobbes among others in their days and in our own age of "governmentality" and the security state these questions are hardly irrelevant. But, so the argument might go, we ask and answer such questions not only in political philosophy or high constitutional (or unconstitutional) politics, but in our relationships with one another, in everyday practices and in private law. Bonnie Honig of the American Bar Foundation makes something of a similar point in her book, Emergency Politics: Paradox, Law, Democracy.

One could speak here of a need for ordinary legal philosophy. 

Anyway, I will discuss Jefferson's place in all this in another post before signing off. Beever's book sounds quite interesting, and it seems to be part of a trend to refocus legal scholarship on big questions that involve the long history of thought- it is worth noting that scholars are getting over our ingrained (and I would want to say in many cases still justified) concerns about metanarratives.

 

 

 

Comments

[Patrick S. O'Donnell]

While there are a host of compelling reasons for "fixation with the state" with regard to most forms of justice, it's certainly true some forms of justice have been comparatively ignored or forgotten and one need not ignore such forms or questions insofar as they can be viewed outside or beyond the state, but I doubt that one can make a persuasive argument "for a return to the traditional view of legal and political community." Incidentally, I had occasion to mention the various types or forms of justice here: http://ratiojuris.blogspot.com/2012/08/on-largely-distributive-justice-basic.html

And I think we do benefit now and again from the proverbial big picture provided by metanarratives, it's just that they require a depth and breadth of knowledge that is, alas, beyond the reach of even our finest scholars (owing to the academic division of labor, hyper-specialized training in some fields, the fragmentation of knowledge domains, etc.).

[Matthew Crow]

I can doubt whether or not there is a single "traditional view of legal and political community" to be recovered, but I do not doubt the efficacy of thinking about how forms of customary usage and constituent constitutionalism (whether that is what Beever has in mind or not) might be rethought and practiced in the contemporary law and politics. Undoubtedly there are compelling reasons to focus on the state, but denaturalizing the state as a fundamental category of political analysis might provide good material for thinking and acting otherwise.

I do not doubt that big picture analyses, metanarratives, or metatheory can be useful and important- that comment was not meant to dismiss the development so much as note it, with a bit of caution. What many of the recent large-scale historical works in legal and political philosophy seem to have in common is a kind of declension narrative where it (the world, western civilization, Europe, the Church, whatever) used to be all one thing and now its all screwed up and complex or fractured because of this other thing. The value of such work has limits, I think. The guiding light here seems to be Koselleck, or a particular (and I might add poor) reading of him. If metanarrative in the history of thought is going to be little more than a return to bad-Hegelian accounts of the epoch or the spirit of the age and what not, I am going to remain skeptical.

[John Brown's Body]

The most important thing history teaches us is that so called elites who run profiteering organizations to service their own greed will always be torn down from the pedestal they put themselves on. Jesus reserved his most righteous anger for those who cheated the less fortunate out of what little they had. The protestant reformation was born out of the corruption in the catholic church, the promise of heaven in return for your earthly wealth. Toussaint Le'Overture, Simon Bolivar, and Thomas Paine led the denizens of the new world in revolt against mercantilist/imperialist european tyrants who called themselves kings. Nat Turner, John Brown, and the black soldiers of the Union army sought to eliminate the idea that one man could own another. Racial minorities, unions, native americans and women did constant battle with the "educated" elites who dominated law and politics. Even now gays and lesbians struggle against the laws YOU (the ivory tower) set up to protect your own financial and societal position. YOu law professors and deans have grown fat and rich on the backs of my generation, deceiving us with false promises backed by doctored employment statistics (SEE: Villanova scandal). Your profiteering has ruined the lives of many of my friends and people I care about. Just like all the profiteering liars that came before you, your day will come.