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Legal Disintegration and a Theory of the State
Published online by Cambridge University Press: 06 March 2019
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This paper describes a topology of legal thought and the social conditions (the larger social construction of reality) of which that topology, that thought, is a component. Part I is a description of the structure of legal thought; Part II of the social conditions (a theory of the state, or political economy). The Conclusion considers the place of traditional legal practice on a new landscape.
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- German Law Journal , Volume 12 , Issue 1: Critical Legal Thought: An American-German Debate—Republication [with a new Introduction] Twenty-Five Years Later — , 01 January 2011 , pp. 186 - 205
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- Copyright © 2011 by German Law Journal GbR
References
1 Although lawyers can do their pragmatic jobs with little formal ideology, throughout the paper I take the position that, consciously or not, types of practice can be identified with characteristic projects of legal thought. See also the Conclusion.Google Scholar
2 Although political economy deals with material things, I consider it to be essentially cultural, an aspect of consciousness, because it is fundamentally a stable set of self reproducing mutual expectations about material things. Political economy seems more distant and objective (and certainly, in some sense, beyond the periphery of legal thought); but we are part of the political economy as well and hence can experience it phenomenologically. See infra, note 19 and accompanying text.Google Scholar
3 Schlegel, John H., American Legal Theory and American Legal Education: A Snake Swallowing its Tail?, in Critical Legal Thought: An American-German Debate 49-84 (Joerges, C. & Trubek, D. eds., 1989) - and reprinted in this issue. I agree with Schlegel that legal thought helps legal academics distinguish themselves from both legal practice and academic departments, but I also see connections with larger patterns of social thought.Google Scholar
4 The idea of core and periphery obviously owes a good bit to Duncan Kennedy: Duncan Kennedy, The Political Significance of the Law School Curriculum, 14 Seton Hall L. Rev. 1 (1983); Kennedy, Duncan, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1737, 1765 (1976). This article differs from Kennedy's conception in several respects, for example, by incorporating policy analysis (and the rematerialization thesis generally); by seeing a progressive movement from core to periphery; and by seeing capitalism as implicated in the construction of both core and periphery, and the contradictions between and within them.Google Scholar
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6 The dimensions correspond somewhat to what Europeans in the Weberian tradition call the “rematerialization” of law. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 Law & Society Rev. 239, 240 (1983).Google Scholar
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15 In a sense, my own work on implementation has been concerned with synthesizing findings from the sociology of law about private social fields with findings from implementation about local variability of impact. I have integrated the two perspectives in a framework of political action, reaction, and social construction at all stages of the implementation process: William H. Clune, A Political Model of Implementation and Implications of the Model for Public Policy, Research, and the Changing Roles of Law and Lawyers, 69 Iowa L. Rev. 47 (1983); Clune, William & Mark H. Van Pelt, A Political Method of Evaluating the Education for All Handicapped Children Act of 1975 and the Several Gaps of Gap Analysis, 48 Law & Contemp. Probs. 7 (1985).Google Scholar
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17 The story I am telling here is essentially an abbreviated version of Stephen Sugarman, Doing Away with Tort Law, 73 Cal. L. Rev. 555 (1985), and conclusions reached from my own teaching of the classic no fault materials in Insurance Law. See also Henry Steiner, Moral Argument and Social Vision in the Courts (1987).Google Scholar
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19 My theoretical stance in this paper is an unusual blend of several different traditions. With marxists, I see fundamental contradictions in capitalism; but, with CLS, no materialism, determinism, class warfare or instrumental theory of the state; and, like mainstream critics of capitalism, I see strong liberating trends in both major projects of capitalism (as described in Part B). Strongly influenced by the sociology of law, I reject that school's disembodied policy-instrumentalism. I also put sociology of law inside legal thought, rather than outside, where it perceives itself. I follow the neo-Weberians in the ideas of rematerialization and social complexity, but I reject the evolutionist theme in favor of fragmentation and contradiction. Finally, this paper is strongly influenced by the theory of autopoiesis, a theory of self-organizing living systems, including communication. Autopoiesis becomes the vehicle for bridging the gap between thought and action. However, unlike proponents of strictly closed autopoietic systems, I see mixed and fragmented systems with protected cores, open peripheries, and lots of internal contradictions capable of deconstruction. An illustrative set of references corresponding to the above influences is: James O'Connor, The Fiscal Crisis of the State (1983); Claus Offe, Disorganized Capitalism (1985); Claus Offe, Contradictions in the Welfare State (1985); Gordon, Robert W., Critical Legal Histories, 36 Stan. L. Rev. 57 (1984); White, G. Edward, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 Southwestern L.J. 819 (1986); Piore, Michael & Sabel, Charles, The Second Industrial Divide, Possibilities for Prosperity (1984); Luhmann, Niklas, The Differentiation of Society (1982); Teubner, Gunther, Substantive and Reflexive Elements in Modern Law, 17 Law & Society Rev. 239 (1983); Teubner, Gunther, Autopoiesis in Law and Society: A Rejoinder to Blankenburg, 19 Law & Society Rev. 291 (1984). In narrative form, my approach goes something like this. Start with the proposition that social structure, all social structure, is meaning – routinized perception and systems of symbolic interaction. Systems are somewhat autonomous, possessing their own logic and cultural codes which resist exogenous discourse. Systems in this sense include families, organizations, institutions, the economy (a system of symbolic codes based on price), fashion, law. But systems also are linked and connected, sharing certain common social constructs. It is a fact that people can stand both inside and outside systems – feel the esthetics of fashion as well as analyze it; reason legally as well as deconstruct that reasoning. And perhaps the capacity to stand inside and outside systems, a system of decoding systems, is itself a product of social complexity, arising naturally from the encounter with multiple systems of meaning. See Thomas C. Heller, Structuralism and Critique, 36 Stan. L. Rev. 127, 147-51, 163-72, 187-97 (1984). This does not mean that law is “the instrument” of capitalism. Law is a part of capitalism; and capitalism is constituted by law as much as its other constitutive systems. There is no pure, denatured capitalism orchestrating the cultural systems from some hidden central location. And, though our culture may be preoccupied with material things, there is no material causation (everything is symbolic, even symbols about things).Google Scholar
20 See Heclo, Hugh, Modern Social Politics in Britain and Sweden 1-2 (1974): Perhaps the most fundamental change that is taken for granted is the growth of modern social policy. Occurring within the span of three or four human generations, it entails a transformation that writers of the 1930's and ‘40's were accustomed to call “a new phase in man's history”. Almost the only time our great grandfather came in direct contact with the state was when he posted a letter or encountered a policeman … Today, in most industrialized nations, the citizen finds much of what he earns disposed of by the state. A great deal of this money goes to provide for his future before any question arises of his personal inability to help himself. If he is ill or becomes injured, if he grows old or is unable to find a job, if his mate bears children or dies, if he seeks housing or education, some explicit or implicit involvement with a state social policy is almost unavoidable … While the rate of total government spending in industrialized nations has grown perhaps 80 to 90 times in real terms during this period, the rate of spending on social policy has probably mushroomed by 5000 to 6000 times … When such changes in social provision by government are identified, they have usually acquired the collective label welfare state … In this study, I prefer to use the term social policy to designate state interventions designed to affect the free play of market forces in the interests of citizens’ welfare. (Emphasis in original). See also Michael Piore & Charles Sabel, The Second Industrial Divide, Possibilities for Prosperity (1984); Jacobs, Jane, Cities and the Wealth of Nations, Principles of Economic Life (1984); Chandler, Alfred D. Jr., The Visible Hand: The Managerial Revolution in American Business (1977).Google Scholar
21 Peters, & Waterman, , supra, note 11; Kanter, Rosabeth Moss, The Change Masters, Innovation and Entrepreneurship in the American Corporation (1984).Google Scholar
22 Piore, & Sabel, , supra, note 10.Google Scholar
23 Rojas, Fernando, Is Information Technology A Capitalist Tool for Further Subordinating Workers?, Working Paper 1-6, Institute for Legal Studies, University of Wisconsin-Madison Law School, March, 1986.Google Scholar
24 In summarizing, I rely on the work of Claus Offe, supra, note 19; and I refer to my own paper, presented in draft at the first American/German conference on reflexive law. See William H. Clune, Unreasonableness and Alienation in the Continuing Relationships of Welfare State Bureaucracy: From Regulatory Complexity to Economic Democracy, 707 Wis. L. Rev. (1985).Google Scholar
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27 See Cribbet, John Edward, Concepts in Transition: The Search for a New Definition of Property, 1 U. of Ill. L. Rev. 41 (1986).Google Scholar
28 For additional insights on the perceived conflict between liberty and authority in American culture, see Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School, Entertainment and Spectator Sports, Institute for Legal Studies”, University of Wisconsin-Madison Law School, Working Paper 2:3 (1986).Google Scholar
29 See Kennedy, supra, note 4; Kennedy, Duncan, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205 (1979). Common people seem to be in a good bit of pain, distress and confusion as they cling to the idea of property as a source of protection and social connection. Blue collar, “conservative Democrats” of my acquaintance in Chicago identify government intrusion on their small possessions as socialism, thereby isolating themselves from cooperative social planning, yet find these same possessions constantly at risk from market transactions and the inevitable, haphazard crisis management of the welfare state. Ethnic bonds which provided models of genuine community are dissolved in the new patterns of rational bureaucracy, commodity consciousness, and social class. Meanwhile the national government elected on their anxieties pursues a dangerous strategy of minimalism, preserving the maximum amount of economic liberty by staying as close as possible to the border of social catastrophe. Playing this kind of social chicken takes a good deal of agility and nerve, personality characteristics with which our entrepreneurial ruling class comes well equipped. But the corresponding social experience is stressful and frightening. In many ways, the modern social consciousness is a bizarre combination of complacent materialism (emphasizing the digestive values of consumption) and nauseating risk (emerging from lack of social cooperation and repressed below the placid surface of everyday consumerist life).Google Scholar
30 See White, supra, note 19.Google Scholar
31 Rogers, Joel, Divide and Conquer: The Legal Foundations of Postwar U.S. Labor Policy, in Critical Legal Thought: An American German Debate 213-235 (Christian Joerges and David M. Trubek, eds.); Katherine Van Wezel Stone, Re-Envisioning Labor Law: A Response to Professor Finkin, 45 Md. L. Rev. 978 (1986).Google Scholar
32 Also consider traditional tort law. Tort law is generally a grotesquely inefficient and unfair method of compensating people for the cost of accidents and a perfect example of how legal thinking becomes replaced with policy analysis. But the tort remedy has one characteristic which may justify preserving the system in modified form. Administered compensation schemes have the problem of overcentralization both in the legislative politics which creates the compensation scheme (its rules of eligibility and damages, for example) and the bureaucratic politics through which the scheme is administered. Just finding out what rules apply, or who is responsible for something, may be impossible in byzantine public bureaucracies. One good thing about traditional tort law is its ability to cut through bureaucratic resistance by a lawsuit, backed with powerful discovery rights, emerging, as it were, from the blue. The heroes of the asbestos litigation were trial lawyers because they alone had the incentives and clout to break the conspiracy of insiders. We should, therefore, proceed very cautiously with surrendering all protections to complex, public bureaucracies and keep in mind the desirability of litigation remedies (if not the traditional private tort suit, for example, then perhaps some kind of public intervenor action). In general, the “unpredictable” quality of legal remedies which makes them such poor devices for planning and programming also makes them good candidates for a type of democratization.Google Scholar
33 See Symposium, Baby Doe: Problems and Legislative Proposals - Legislative Workshop, 1984 Ariz. St. L.J. 601-92 (1984).Google Scholar
34 Schneyer, Ted, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529 (1984).Google Scholar
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