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Room for Manoeuver: Toward a Theory of Practice in Critical Legal Studies

Published online by Cambridge University Press:  27 December 2018

Rosemary J. Coombe
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Type
Review Symposium Essay
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Law & Social Inquiry , Volume 14 , Issue 1 , Winter 1989 , pp. 69 - 121
Copyright
Copyright © American Bar Foundation, 1989 

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References

1 See, e. g., Boyle, James, “The Politics of Reason: Critical Legal Studies Theory and Local Social Thought,” 133 U. Pa. L. Rev. 685 (1985); Brainerd, Stephen, “The Groundless Assault: A Wittgensteinian Look at Language, Structuralism, and Critical Legal Theory,” 34 Am. U. L. Rev. 1231 (1985); Gordon, Robert W., “Critical Legal Histories,” 36 Stan. L. Rev. 57 (1984); Heller, Thomas, “Structuralism and Critique,” 36 Stan. L. Rev. 127 (1984); Hunt, Alan, “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 11 (198485); Peller, Gary, “The Metaphysics of American Law,” 73 Cal. L. Rev. 1151 (1985).CrossRefGoogle Scholar

2 Boyle, 133 U. Pa. L. Rev. at 688–89. Boyle is clearly influenced by Heller's emphasis on the need to transcend structuralist modes of analysis in critical legal thought. See Heller, 36 Stan. L. Rev. Google Scholar

3 See, e. g., Pierre Bourdieu, Outline of a Theory of Practice, trans. Richard Nice (Cambridge: Cambridge University Press, 1977); id., “Symbolic Power,” in Dennis Gleeson, ed., Identity and Structure: lssues in the Sociology of Education (Dimiffield, Eng.: Nefferton, 1977) (“Bourdieu, ‘Symbolic Power’‘'); id., “The Social Space and the Genesis of Groups,” 14 Theory & Society 723 (1985) (“Bourdieu, ‘Social Space’‘'); Anthony Giddens, New Rules of Sociological Method (London: Hutchinson, 1976) (“Giddens, New Rules”); id., Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Berkeley: University of California Press, 1979) (Giddens, Central Problems”); id., The Constitution of Society: Outline of the Theory of Structuration (Berkeley: University of California Press, 1984); Paul Smith, Discerning the Subject (Minneapolis: University of Minnesota Press, 1988) (“Smith, Disceming the Subject”); Alan Touraine, The Self-Production of Society (Berkeley: University of California Press, 1977); id., Return of the Actor: Social Theory in Postindustrial Society (Minneapolis: University of Minnesota Press, 1988).Google Scholar

4 Practice theory is not the monolithic theoretical construction of any particular author, nor is it confined to any one discipline, or even to the activities of scholars working in proximity to one another. It has been said that practice is neither a theory or method in itself but a” key symbol” in the name of which a variety of theories and methods are being developed; see Ortner, Sherry, “Theory in Anthropology Since the Sixties,” 26 Comp. Stud. in Soc'y & Hist. 126, 127 (1984). It could be defined as a growing body of theoretical contributions from scholars trained in a number of disciplines and speaking from within the context of different national traditions, which are characterized by a number of shared concerns and similar premises. These concerns and premises revolve around the concepts of structure and subjectivity and will be elaborated in my discussion of their reconceptualization.Google Scholar

5 Cited in note 1.Google Scholar

6 Boyle, 133 U. Pa. L. Rev. at 741.Google Scholar

7 Id. at 742.Google Scholar

8 Id. at 743.Google Scholar

9 Id. at 747.Google Scholar

10 Heller, 36 Stan. L. Rev. (cited in note 1).Google Scholar

11 Boyle, 133 U. Pa. L. Rev. at 749–50.Google Scholar

12 ” Empirical” in this context must be interpreted broadly. Many of us will want to examine historical materials to determine the subjective consciousness of social actors in other periods. Obviously the insights afforded by social science methods of questioning or anthropological methods of participant observation will not be available to us. Our inquiries are no less empirical by virtue of the fact that we might choose to examine diaries, correspondence, novels, recorded conversations, and records of business negotiations. More difficult questions are raised by the examination of trial records, witnesses' statements, and judges' notes.Google Scholar

13 Boyle, 133 U. Pa. L. Rev. at 750.Google Scholar

14 Id. Google Scholar

15 Id. at 747.Google Scholar

16 Id. at 748–49.Google Scholar

17 Robert W. Gordon, “New Developments in Legal Theory,” in David Kairys, ed., The Politics of Law: A Progressive Critique 281–93, at 286 (New York: Pantheon Books, 1982) (“Gordon, ‘New Developments' ‘').Google Scholar

18 If not all structure is experienced as constraint, it is also true that not all subjective desires are experienced as enabling. One can feel oppressed by one's freedoms, intentions, and choices. I am grateful to Sylvia Yanagisako for reminding me of this.Google Scholar

19 See Heller, 36 Stan. L. Rev. at 132, at 172–81 (cited in note 1), for a discussion of the constitution of the individual by liberal legal discourse.Google Scholar

20 Boyle, 133 U. Pa. L. Rev. at 719 (cited in note 1), quoting Gabel, Peter, “Intention and Structure of Contractual Conditions: Outline of a Method for Critical Legal Theory,” 61 Minn. L. Rev. 601 (1977).Google Scholar

21 Id. at 757 (emphasis mine).Google Scholar

22 Id. at 762.Google Scholar

23 Gabel, Peter & Kennedy, Duncan, “Roll Over Beethoven,” 36 Stan. L. Rev. 1, at 19, 20 (1984).CrossRefGoogle Scholar

24 Gabel, Peter, “Reification in Legal Reasoning,” 3 Research in Law & Soc. 25, 30–32 (1980)Google Scholar

25 Heller, 36 Stan. L. Rev. at 157.Google Scholar

26 Boyle, 133 U. Pa. L. Rev. at 767.Google Scholar

27 This understanding of structure is elaborated in Part III of this essay.Google Scholar

28 Heller, 36 Stan. L. Rev. at 173.Google Scholar

29 Id. at 132.Google Scholar

30 Boyle, 133 U. Pa. L. Rev. at 762.Google Scholar

31 See Brainerd, 34 Am. U. L. Rev. (cited in note 1). Similar points have been made by those scholars working within the law and interpretation or law and literature field. See, e. g., Hoy, David Couzens, “Interpreting the Law: Hermeneutical and Poststructuralist Perspectives,” 58 S. Cal. L. Rev. 135; Fish, Stanley, “Fish v. Fiss,” 36 Stan. L. Rev. 1325 (1984); Graff, Gerald, “‘Keep Off the Grass' ‘Drop Dead’ and Other Indeterminacies: A Response to Sanford Levinson,” 60 Tex. L. Rev. 405 (1982). The conservative tone of much of this literature should serve as a reminder that acceptance of this proposition has no necessary political consequences. Modes of countering the conservative tendencies in Wittgensteinian approaches to judicial interpretation are explored in Rosemary J. Coombe, “Same as It Ever Was: The Interpretive Turn in Legal Scholarship,” 34 McGill L. J. (forthcoming 1989).Google Scholar

32 Brainerd, 34 Am. U. L. Rev. at 1244.Google Scholar

33 Id. at 1259–60.Google Scholar

34 Peller, 73 Cal. L. Rev. (cited in note 1). In this sense, Peller's project bears some similarity to Foucault's intention” to dissolve the philosophical link–inherited by the Marxist tradition from German idealism, between consciousness, self-reflection and freedom, and to deny that there remains any progressive potential in the ideal of the autonomous subject.”Dews, Peter, “Power and Subjectivity in Foucault,” 144 New Left Rev. 72, 87 (1984). As I shall attempt to make clear, however, a denial of the freely autonomous subject and acceptance of the post-structuralist claim that subjectivity is discursively constituted, does not necessarily imply a denial of human practice or agency as historical forces.Google Scholar

35 Peller, 73 Cal. L. Rev. at 1169.Google Scholar

36 Id. at 1170.Google Scholar

37 Id. at 1175.Google Scholar

38 Id. at 1178.Google Scholar

39 Id. at 1187.Google Scholar

40 Id. at 1188.Google Scholar

41 Id. Google Scholar

42 Id. at 1188–89 (my emphasis).Google Scholar

43 Id. at 1190.Google Scholar

44 I discuss the concept of interpellation in note 173 below.Google Scholar

45 Teresa de Lauretis, “Feminist Studies/Critical Studies: Issues, Terms, and Contexts” (“De Lauretis, ‘Feminist Studies’”), in De Lauretis, ed., Feminist Studies/Critical Studies 5 (Bloomington: Indiana University Press, 1986) (“De Lauretis, ed.”).CrossRefGoogle Scholar

46 Id. Google Scholar

47 Id. Google Scholar

48 Id. at 8.Google Scholar

49 ” A self does not amount to much, but no self is an island; each exists in a fabric of relations that is now more complex and mobile than ever before…. [A] person is always located at” nodal points” of specific communication circuits, however tiny these may be. Or better: one is always located at a post through which various kinds of messages pass. [But] no one, not even the least privileged among us, is ever entirely powerless over the messages that traverse and position him at the post of sender, addressee, or referent.” Jean-Francois Lyotard, The Postmodem Condition: A Report on Knowledge 15 (Minneapolis: University of Minnesota Press, 1984) (Lyotard, The Postmodem Condition”).Google Scholar

50 De Lauretis, “Feminist Studies” at 10 (cited in note 45).Google Scholar

51 See Smith, Discerning the Subject (cited in note 3).Google Scholar

52 See his works cited in note 3.Google Scholar

53 Giddens, Central Problems at 39 (cited in note 3).Google Scholar

54 Ortner, 26 Comp. Stud. in Soc'y & Hist. at 153–54 (cited in note 4).Google Scholar

55 Heller, 36 Stan. L. Rev. at 157–58 (cited in note 1).Google Scholar

56 Id. at 145.Google Scholar

57 Id. at 146Google Scholar

58 Id. at 147.Google Scholar

59 Id. at 158.Google Scholar

60 Id. at 147–48 (my emphasis).Google Scholar

61 Id. at 148 (my emphasis).Google Scholar

62 Id. at 151.Google Scholar

63 Id. at 133, 156.Google Scholar

64 Id. at 155.Google Scholar

65 Id. at 157.Google Scholar

66 Id. at 183.Google Scholar

67 Poststructuralism is no more monolithic a theoretical orientation than practice theory. I rely heavily on Heller's formulations of poststructuralist theory in legal scholarship (36 Stan. L. Rev.; cited in note I), but recognize that different formulations of poststructuralism reconstitute the subject and address the issue of agency in different ways and to different degrees. For one example of a feminist poststructuralist discussion of subjectivity that emphasizes women's agency see Nancy K. Miller, “Changing the Subject: Authorship, Writing and the Reader,” in De Lauretis, ed. (cited in note 45).Google Scholar

68 Heller, 36 Stan. L. Rev. at 194.Google Scholar

69 Id. at 195.Google Scholar

70 Id. Google Scholar

71 Id. at 196.Google Scholar

72 Giddens, Central Problms at 45 (cited in note 3).Google Scholar

73 Id. at 40.Google Scholar

74 Id. at 6.Google Scholar

75 Gordon, “New Developments” at 287 (cited in note 17).Google Scholar

76 Boyle, 133 U. Pa. L. Rev. at 725 (cited in note 1).Google Scholar

77 Id. at 764.Google Scholar

78 See works by Giddens cited in note 3.Google Scholar

79 Giddens, New Rules at 155 (cited in note 3).Google Scholar

80 Id. at 126–27.Google Scholar

81 Id. at 127.Google Scholar

82 Giddens, Central Problems at 3 (my emphasis).Google Scholar

83 Legal scholars in the field of constitudonal law, for example, are at last recognizing that “individual” and “society” or “community” are not opposite poles but mutually constitutive. See, e. g., Macklem, Patrick, “Constitutional Ideologies,” 20 Ottawa L. Rev. 117 (1988).Google Scholar

84 Giddens, New Rules at 128.Google Scholar

85 Id. at 161.Google Scholar

86 Giddens, Central Problems at 70 (cited in note 3).Google Scholar

87 Peller, Gary, “Debates About Theory Within Critical Legal Studies,” 1 Lizard 4 (1984).Google Scholar

88 Id. Google Scholar

89 Boyle, 133 U. Pa. L. Rev. at 727 (cited in note 1).Google Scholar

90 Id. Google Scholar

91 Peller, 73 Cal. L. Rev. at 1167 (cited in note 1).Google Scholar

92 See Roy Wagner, Habu: The Innovation of Meaning in Daribi Religion (Chicago: University of Chicago Press, 1972); id, The Invention of Culture (Chicago: University of Chicago Press, 1975) (“Wagner, Invention”); id, Symbols That Stand for Themselves (Chicago: University of Chicago Press, 1986).Google Scholar

93 Meaning is created by the formation of metaphors drawing on the formal elements of a culture, and the constancy of such activity ensures that significative systems are always in dynamic process. Such “signifiers” conventionally tied to a signified, are continually extended to signify new elements, thus creating (or mediating) a relation between the two signified elements that forms a metaphor Every such extension has transformative potential because” every use of a symbolic element is an innovative extension of the association it acquires through its conventional integrations into contexts.” Wagner, Invention at 39. Extensions of symbols into new contexts can bring about rearrangements and often confusion among the relations within that context as well as the conventional contexts from which such symbols are drawn, triggering unpredictable reverberations But if metaphors, in their construction, have transformative capacities, people may ossify them in their constructed state. They may become forms of relationship that are taken for granted, like signifiers tied conventionally to signifieds. We may fail to utilize their symbolic potency, but the metaphor becomes part of the symbolic repertoire upon which further metaphoric activity may draw. In other words, as a social phenomenon a” frozen metaphor” may lose its character as a relation between things and become a unitary symbol that can be used to construct new metaphoric relations. The” frozen metaphor” then becomes conventiondy contextualized into our systems of categorization.Google Scholar

94 Sahlins, Historical Metaphors and Mythical Realities (Ann Arbor: University of Michigan Press, 1981); id., Islands of History (Chicago: University of Chicago Press, 1985) (“Sahlins, Islands).Google Scholar

95 Sahlins, Islands at vii.Google Scholar

96 Ortner, 26 Comp. Stud. in Soc'y & Hist. at 155–56 (cited in note 4).Google Scholar

97 Sahlins, Islands at vii.Google Scholar

98 De Certeau is difficult to characterize in disciplinary terms because he has received advanced training in theology, history, the study of comparative religions, psychoanalysis, and anthropology and has taught in all these fields at universities in France and North and Central America. For an example of the range of his oeuvre, see Heterologies: Discourse on the Other, trans. Brian Massumi (Minneapolis: University of Minnesota Press, 1986).Google Scholar

99 Berkeley: University of California Press, 1984 (“De Certeau, Practice”).Google Scholar

100 Id. at xxi–xxii.Google Scholar

101 Id. at 15.Google Scholar

102 Id. at 21.Google Scholar

103 James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance 333 (New Haven, Conn.: Yale University Press, 1985). It should be noted that despite a shared concern with the everyday practices through which social agents divert elements of dominant discourses in their own projects, Scott and de Certeau have radically different understandings of the subject. In his desire to avoid the crude determinism implicit in notions of false consciousness, Scott fails to address the cultural and ideological construction of pragmatic interests. De Certeau, on the other hand, is emphatic that an investigation of everyday practices, ways of operating, of doing things, does not imply a return to individualism. Although he expressly adopts the poststructuralist position that each” individual is a locus in which an incoherent (and often contradictory) plurality of… relational determinations interact” (Practice at xi; cited in note 99), he vacillates between seeing persons or subjects as the authors or as the vehicles of the operations he examines, a distinction I argue is critical to maintain.Google Scholar

104 Practice at 31–32.Google Scholar

105 Id. at 17–18.Google Scholar

106 Id. at 18.Google Scholar

107 Eugene Genovese, Roll Jordon Roll: The World the Slaves Made 7 (New York: Pantheon Books, 1984).Google Scholar

108 The Free Women of Petersburg: Stats and Culture in a Southern Town, 1784–1860 at 233 (New York: Norton, 1984). The use of opportunities afforded by the potentialities inherent in the structures of discourse for unanticipated purposes and projects is, of course, not a practice limited to the disempowered (although such agents may well effect greater transformations-their projects and references being farther removed from the expectations of ideological producers than those of the socially powerful). For example, in The Good Families of Barcelona: A Social History of Power in the Industrial Era (Princeton, N. J.: Princeton University Press, 1986), Gary W. McDonogh demonstrates that in the 19th century, newly emergent industrial elites in Barcelona developed potentials unspecified in but afforded by the 1829 Spanish commercial code to meet traditionally valued ends. The creation of the limited liability corporation as a vehicle to encourage economic exploitation by associations of private investors, which anticipated a separation of ownership and control, was seized by already existing family businesses in a manner that retained an identification of ownership and control in the figure of the founding patriarch, but took advantage of the protection afforded by limited liability to preserve family patrimonies. Legal practice, in this instance, served other ideologically salient discourses that embodied values and goals more conservative than those the law itself was intended to promote.Google Scholar

109 One argument made against practice theory is that it fails to distinguish between the types of discursive behavior or practice that are likely to effect major social transformations and those that merely reproduce the status quo or modify it in socially inconsequential ways. I would have to acknowledge this to be true. What practice theory suggests is that such determinations can never be made in advance; quotidian social practices may cumulatively produce unforeseen political consequences. Individual 19th-century women may have had no conscious intention of effecting major changes in gender relations (indeed, they might have been horrified by such a prospect) when they argued for the need for a female influence in discrete realms of endeavor on an issue-by-issue basis. The cumulative effect of these rhetorical strategies could not have been envisioned at the time. Only with hindsight is it possible to see this activity as political activity which was resistant to a particular form of oppression, even as it was complicit with some of its dominant cultural representations.Google Scholar

Practice theory, then, lays claim to no particular political program or agenda. It is not a prescription for politics but a description of the politics emergent in everyday life. It provides no schema with which to evaluate political arguments or judgments. Like the structures I've been discussing, practice theory doesn't do anything. Like all discourse it is a structure of opportunity, a body of conceptual resources that can be deployed for strategic purposes. As theory, it is not a totalizing vehicle but one that multiplies potentialities by compelling a reevaluation of conventional thought. How you use it has to do with your own perceived interests, your own experiences, and the other discursive configurations in which you find yourself. Practice theory does, however, provide rhetorical means with which to counter certain insidious forms of political argumentation, especially those which see all behavior as voluntaristically chosen (if you remain in an oppressive situation, you must want to be there) and all experience as fully transparent (I do not feel dominated in this situation, therefore it cannot be coercive). It also provides argumentative tools to counter suggestions that social groups and persons who have been oppressed and exploited lack the moral capacity to make judgments and exercise self-determination (… they have been oppressed by colonialism or apartheid for so long they cannot possibly be capable of self-government). Although it is outside the scope of this essay to develop the idea, I do think that practice theory suggests a conception of politics we might encourage. The theory imagines politics as local practice involving the practical engagement of paradox, contradiction, and ambiguity both within discourses and between them. It is, therefore, an important political exercise to make such paradoxes, contradictions, and ambiguities visible and to articulate them forcefully. It is through such rhetorical practices that felt senses of fixity may be undermined and the inherent plasticity of discourses and institutions made more fully available for critical praxis. It is also an exercise in political empowerment to make more discourses, and hence more resources, available to more people in more contexts. This enables people to” develop action, thought, and desires by proliferations, juxtaposition, and disjunction” through the encouragement of multiplicity (Sean Hand, “Translating Theory, or the Difference between Deleuze and Foucault,”in Giles Deleuze, Foucault xlii (Minneapolis: University of Minnesota Press, 1988). Practice theory suggests that” political practice [serve] as an intensifier of thought, and [the intellectual's] analysis as a multiplier of the forms and domains for the intervention of political action. Id at xliii. Cultivate heterogeneity. Increase sensitivity to differences. Tolerate the incommensurable. Let a thousand language games bloom. Lyotard, The Postmodem Condition (cited in note 49). For another discussion of the inherent lack of fixity in discourse and the progressive political action this enables, see Ernesto Laclau & Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985) (“Laclau & Mouffe, Hegemony”).Google Scholar

110 Scott, Weapons of the Weak at 338–39 (New Haven, Conn.: Yale University Press, 1985).Google Scholar

111 Smith, Discerning the Subject at 25 (Minneapolis: University of Minnesota Press 1988). Duncan Kennedy might be making a similar point (although deploring philosophical and theoretical formations of this nature) in his suggestion that we resist from” the interspace of… speeches and rhetoric… drama… soap opera, pop culture, [and I would venture to guess, all the symbolic forms which situate us as subjects]. [Flreedom exists in the interstices of structures and is a way of destroying them and transforming them but never being outside them, so that freedom is always interstitial… it's just things you can do in spite of the structured character of the situation.” Gabel & Kennedy, 36 Stan. L Rev. at 53-54 (cited in note 23).Google Scholar

112 Peller, 73 Cal. L. Rev. at 1178 (cited in note 1).Google Scholar

113 Id. at n. 45.Google Scholar

114 Id. Google Scholar

115 John B. Thompson, Studies in the Theory of Ideology 43 (Berkeley: University of California Press, 1984)Google Scholar

116 Bourdieu, “Symbolic Power” at 115 (cited in note 3).Google Scholar

117 Id. at 116.Google Scholar

118 di Maggio, Paul, “Review Essay on Pierre Bourdieu,”, 84 Am. J. Soc. 1460 (1979).Google Scholar

119 Bourdieu, Pierre, “The Force of Law: Toward a Sociology of the Juridical Field,” 38 Hastings L. J. 805 (1987).Google Scholar

120 Bourdieu, “Symbolic Power” at 115 (cited in note 3).Google Scholar

121 Di Maggio, 84 Am. J. Soc. at 1461.Google Scholar

122 Bourdieu's scholarly achievements can be fruitfully understood in terms of the opposition between Sartre and Levi-Strauss in postwar French intellectual debates. For this reason, Bourdieu's work is of great interest to a critical legal inquiry attempting to come to terms with the inadequacies of both subjectivist and structuralist approaches. The context in which Bourdieu came of age was one characterized by the confrontation of: two radically different approaches to the study of social life: Sartre's voluntarism and Levi-Strauss's structuralism. Sartre's emphasis on the creativity, freedom, and undetermined power of choice of the individual subject and Levi-Strauss's emphasis on the causal power of structures operating independently of the consciousness of agents came to be seen by Bourdieu as antithetical poles of a basic opposition between subjectivism and objectivism, an opposition discernable in different guises throughout the history of social thought and constituting in his view, the chief obstacle to the construction of an adequate theory of society. All of Bourdieu's work, seen in this light, represents an effort to” transcend the antagonism which sets these two modes of knowledge against each other and at the same time to preserve the insights gained by each position.”Brubaker, Rogers, “Rethinking Classical Theory: The Sociological Vision of Pierre Bourdieu,” 14 Theory & Soc'y 745, 747 (1985), citing Bourdieu, Le Sens Practique 43 (Paris: Editions de Minuit, 1980).Google Scholar

123 Di Maggio, 84 Am. J. Soc. at 1462 (cited in note 118).Google Scholar

124 Bourdieu, “Social Space” at 727–28 (cited in note 3).Google Scholar

125 Id. at 728.Google Scholar

126 Id. Google Scholar

127 Brubaker, 14 Thery & Soc'y at 758 (cited in note 122).Google Scholar

128 Bourdieu, Pierre, “Structuralism and Theory of Social Knowledge,” 35 Soc. Research 681, 705–6 (1969).Google Scholar

129 For an elaboration of these notions of habitus see Foster, Stephen W., “Reading Pierre Bourdieu,” 1 Cultural Anthropology 103 (1986); and Lamaison, Pierre, “From Rules to Strategies: An Interview with Pierre Bourdieu,” 1 Cultural Anthropology 110 (1986).CrossRefGoogle Scholar

130 Terdiman, Richard, Translator's Introduction, 38 Hastings L. J. 805, 807 (1987).Google Scholar

131 Id. at 811–12.Google Scholar

132 Bourdieu, “Social Space” at 728 (cited in note 3).Google Scholar

133 Id. at 729.Google Scholar

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135 Id. at 730. Bourdieu suggests that” the trial represents a paradigmatic staging of the symbolic struggle inherent in the social world” (38 Hastings L. J. at 837; cited in note 119), a struggle in which antagonistic world views come into confrontation. Judicial power is the power to proclaim truth by acts of naming or instituting” for the state alone holds the monopoly of legitimized symbolic violence.”Id. at 838. Through judgments, the law concludes or at least limits the everyday struggles and negotiations” concerning the qualities of individuals or groups, concerning the membership of individuals within groups, concerning the correct attribution of names and titles, concerning union or separation-in short concerning the entire practical activity of ‘worldmaking’… law is the quintessential form of the symbolic power of naming that creates the things named…. It confers upon the reality which arises from its operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects. Id. Google Scholar

136 Di Maggio, 84 Am. J. Soc. at 1462 (cited in note 118).Google Scholar

137 Bourdieu, “Symbolic Power” at 116 (cited in note 3).Google Scholar

138 Bourdieu, 38 Hastings L. J. at 814 (cited in note 119).Google Scholar

139 Id. at 816.Google Scholar

140 Id. at 816.Google Scholar

141 Id. at 815.Google Scholar

142 Id. Google Scholar

143 Bourdieu is commenting primarily on the juridical field in France, but he makes extensive reference to Anglo-American legal practice and the level of generality of his discussion supports his translator's claim that” his perspective transcends the specificity of any individual legal system.” Terdiman, 38 Hastings L. J. at 806 (cited in note 130).Google Scholar

144 Id. at 817.Google Scholar

145 Boyle, 133 U. Pa. L. Rev. at 728–29 (cited in note 1).Google Scholar

146 Bourdieu, 38 Hastings L. J. at 833 (cired in note 119).Google Scholar

147 Boyle, 133 U. Pa. L Rev. at 729.Google Scholar

148 Kennedy, Duncan, “Toward an Historical Understanding of Legal Consciousness: The Case of Critical Legal Thought in America, 1850–1940,” 3 Research in L. & Soc. 3 (1980).Google Scholar

149 Boyle, 133 U. Pa. L Reu. at 765.CrossRefGoogle Scholar

150 Kennedy, Research in L & Soc. at 22 (my emphasis).Google Scholar

151 Kennedy's own recanting of legal consciousness, albeit for political reasons, suggests a distaste for the abstract and structuralist nature of this approach. Gabel & Kennedy, 36 Stan. L. Rev. at 15–16 (cited in note 23).Google Scholar

152 Boyle, 133 U. Pa. L. Rev. at 714, citing Roberto Unger, Knowledge and Politics 15 (New York: Free Press, 1975).Google Scholar

153 Arguably the habitus of the legal practitioner trained in an elite law school in the 1950s varies considerably from that of the lawyer who emerges from a law school where critical legal studies, feminist legal scholarship, and clinical practice empowering disadvantaged social groups have become entrenched.Google Scholar

154 Gordon's study of legal consciousness and legal practice amongst late 19th-century American lawyers is one such account (“Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Gerald Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina, 1984) (“Gordon, ‘Legal Thought’”). I discuss it in more detail in the conclusion to this essay.Google Scholar

155 Gabel & Kennedy, 36 Stan. L Rev. 8–17 (cited in note 23).Google Scholar

156 Boyle, 133 U. Pa. L. Rev. at 769–71 (cited in note 1).Google Scholar

157 Id. at 771.Google Scholar

158 Id. at 772.Google Scholar

159 Id. at 773.Google Scholar

160 Id. Google Scholar

161 Id. at 776.Google Scholar

162 Id. at 776.Google Scholar

163 Id. at 779.Google Scholar

164 Trubek, David & Esser, John, “‘Critical Empiricism’ in American Legal Studies: Paradox, Program, or Pandora's Box 14 Law & Soc. Inquiry 1 (1989).CrossRefGoogle Scholar

165 Silbey, Susan & Sarat, Austin, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165, 173 (1987).CrossRefGoogle Scholar

166 An elaboration of” critical empiricism” and its implications for the law and society tradition is found in Trubek & Esser, 14 Law & Soc. Inquiry.Google Scholar

167 Silbey & Sarat, 21 Law & Soc'y Rev. at 166.Google Scholar

168 Silbey, Susan, “Ideal and Practices in the Study of the Law,” 9 Legal Stud. F. 7, 20 (1985).Google Scholar

169 Trubek & Esser, 14 Law & Soc. Inquiry at 19 (cited in note 164).Google Scholar

170 By now it should be clear that the term “practice” encompasses a broad scope of possible activities, behaviors, and interpretations. In principle a practice could be almost anything a person or group of people do. The emphasis here is on signifying activity that has political implications. Almost any kind of activity can have this potential for bearing meaning and effecting social transformation. For a discussion of the concept of practice in practice theory see Ortner, 26 Comp. Stud. in Soc'y & Hist. at 149–50 (cited in note 4).Google Scholar

171 Barbara Yngvesson, “Negotiating Identities: Discourses of Self and Legal Consciousness in Court” (paper presented at Law and Society Association Annual Meetings, June 9–12, 1988).Google Scholar

172 Rosemary J. Coombe, “Contesting the Self: Negotiating Subjectivities in Nineteenth Century Ontario Defamation Trials” (paper presented at Law and Society Association Annual Meetings, June 9–12, 1988).Google Scholar

173 Intopellation is the process by which discourse permits certain identities or calls specific subject positions into being. For example, one could not have an identity as a homosexual prior to the 19th century (although one could engage in what we would call homosexual sexual activities). The subject position “homosexual” was called into being by discursive and disciplinary practices that instantiated particular configurations of power. See Michel Foucault, The History of Sexuality (New York: Vintage Books, 1980). The juridic subject is constructed through representational practices such as the construction of the judiciable fact situation, the development of legal fictions (the” reasonable man”), evidentiary rules, and adversarial tactics, for example. The concept of interpellation was developed by Louis Althusser in” Ideology and Ideological State Apparatuses” in Lenin and Philosophy (London: Monthly Review Press, 1971) and has quite appropriarely been criticized for being overly deterministic and positing the individual merely as a functional support of structures. Paul Smith, Discerning the Subject (cited in note 3), however, has developed the notion of interpellation in a manner congruent with or at least complimentary to the reconceptualization of subjectivity and agency and the possibilities for resistance I have discussed. For a further discussion of interpellation in juridical domains see Dragan Milovanovic, “Re-Thinking Subjectivity in Law and Ideology: A Semiotic Perspective” in D. Currie & B. MacLean, eds., Struggle for Equality: Rethinking the Administration of Justice (Toronto: Garamon Press, 1989).Google Scholar

174 Simon, Jonathan, “The Ideological Effects of Actuarial Practices 22 Law & Soc'y Rev. 771 (1988).CrossRefGoogle Scholar

175 Similar projects are well under way in other disciplines. In cultural anthropology, for example, Emily Martin has examined the cultural and ideological representations that pervade a purportedly “objective” medical-scientific discourse about physiological processes. She also shows how these dominant images and metaphors shape women's experiences of their own bodily functions and inscribe themselves in consciousness. See The Woman in the Body: A Cudtural Analysis of Reproduction (Boston: Beacon Press, 1987). The question of the place of the individual in relation to interpellative mechanisms has also been theorized extensively with respect to the ideological efficacy of literature, film, and television. For a brief discussion of this work, see Smith, Discerning the Subject at 24–40 (cited in note 3). Work in the humanities that has explored the connection between discursive practices and historical subjectivities remains an untapped resource of potentially great significance to the development of a critical legal studies.Google Scholar

176 ” Legal Thought” at 72 (cited in note 154).Google Scholar

177 Id. Google Scholar

178 Id. at 93.Google Scholar

179 See Hunt, 19 Law & Soc'y Rev. (cited in note 1).Google Scholar

180 For example, John Brigham states that” doctrine as ideology can be understood through the social and institutional relations that determine its impact.”“Judicial Impact upon Social Problems: A Perspective on Ideology,” 9 Legal Stud. F. 47, 49 (1985).Google Scholar

181 Jane Collier & Sylvia Yanagisako, “Theory in Anthropology Since Feminist Practice” (paper presented at American Anthropological Association Annual Meetings, Nov. 18–22, 1987) (Collier & Yanagisako, ‘Theory in Anthropology'”). A cogent case for such a deconstruction is made by Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977). Other neo-Marxist (“post-Marxist” is the nomenclature claimed by its practitioners) scholarship abandoning the base/superstructure, and, indeed, the material/ideal dichotomy, which offers promise for legal scholars interested in social movements and minority resistance is being produced by Ernesto Laclau and Chantal Mouffe. See Laclau, Ernesto, “'Socialism,' the ‘People,' ‘Democracy’: The Transformation of Hegemonic Logic,” 7 Social Text 115 (1983); Ernesto Laclau & Chantal Mouffe, Hegemony (cited in note 109); Laclau, Ernesto & Mouffe, Chantal, “Postmarxism Without Apologies,” 166 New Left Rev. 79 (1987); and Chantal Mouffe, “Hegemony and the Integral State in Gramsci: Towards a New Concept of Politics,” in G. Bridges & R. Brunt eds., Silver Linings: Some Strategies for the Eighties (London, 1981). For a critical comment see Mouzelis, Micos, “Marxism or Post-Marxism?,” 167 New Left Rev. 107 (1988).Google Scholar

182 E. P. Thompson, Whigs and Hunters (London: Allen Lane, 1975).Google Scholar

183 Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London: Allen Lane, 1975).Google Scholar

184 Stuart Hall et al., Policing the Crisis: Mugging, the State and Law and Order (New York: Holmes & Meier, 1978)Google Scholar

185 Collier & Yanagisako at 3 (cited in note 181).Google Scholar

186 Id. at 6.Google Scholar

187 Id. at 7.Google Scholar