Jurisprudence

Themes and Concepts

Scott Veitch, Emilios Christodoulidis, Marco Goldoni

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317749202
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Jurisprudence: Themes and Concepts offers an original introduction to, and critical analysis of, the central themes studied in jurisprudence courses. The book is presented in three parts: the first two contain general themes with corresponding tutorial questions, and the third contains advanced topics.Every chapter in the bookgives guidance on further reading.

Accessible, interdisciplinary and socially informed, this book has been revised to take into account the latest developments in jurisprudential scholarship.

Part I
Law and modernity

I The advent of modernity

II Theorists and critics of modernity

III Transformations of modern law

I
The advent of modernity

1 Overview

The idea of progress

Specialisation of knowledge and the individual

Thinking about modern law

2 Social contract theory

The emergence of the sovereign state – Westphalia as marker of transition

Hobbes, theorist of the modern state

John Locke: social contract and the law of private property

Rousseau: law between equality and self-government

3 Law and the rise of the market system

The institutional dimension

The market system

4 Law and the political

Elements of the modern state

Sovereignty

Holding sovereign power to account

Chapter 1
Overview

Modernity provides the context for the jurisprudential themes and concepts we explore in this book. The term ‘modernity’ denotes a wide range of ways of thinking and acting – in science, law, politics, economics, culture and so on – juxtaposed, essentially, to that which preceded it – the ‘pre-modern’ – and that which challenges it: the ‘anti-modern’ and the ‘post-modern’, for example. The advent of modernity marked an attempt to break with the past: to break from the domination of tradition, superstition and an uncritical conformity to ‘the way things are’. It is characterised by a new freedom to contest what had previously been taken as given and unchallengeable, and it led in turn to radical changes in forms of political, social and legal organisation.

Modernity emerges fully in the seventeenth and eighteenth centuries and, despite some key oppositions to it identifiable today, it continues to be an organising category up to our time. Immanuel Kant’s famous dictum sapere aude (‘dare to know’) captures something of the revolutionary spirit in the fields of knowledge, science and culture. A new optimism pervading the ‘Age of Reason’ promoted the idea that the world could be understood by the rigorous application of scientific analysis and experimentation as opposed to referring to religious, magical or mysterious forces. The rules and regularities discoverable by science in nature could in turn be applied to the understanding and eradication of social problems (such as disease, famine or poverty). Hence the idea of modernity applied both to the natural and to what became known as the social sciences. The latter, as they emerged in the course of the eighteenth and nineteenth centuries, were driven by efforts to improve understanding of the regularities of social life and the structures and institutions that influence how people interact in society.

Modernity for our purposes addresses predominantly, though not exclusively, the workings and effects of Western institutions and concepts. These will form the focus of this book. But as we will also see, while these institutions and concepts have been influential globally, such influence has not necessarily been positive. Indeed, in modernity, Western societies have produced harms as well as goods and their institutions have been complicit with many practices that do not meet their own professed ideals. We will return to this observation in due course.

The idea of progress

The engine that drives modernity is the idea of progress. Whatever is the state of things just now, it could be better: the natural and social worlds could be better understood, technology could be made to work more efficiently or be put to better use, humans and their institutions could be more free, more equal, more just. The discrepancy between how things now are and how they could be if they were made better in the future can be described as a discrepancy between ‘social experience and social expectation’ (Santos 2002, p 2). The desire to improve social experience by meeting these expectations is the source of an exhilarating energy for making social life better.

This drive for improvement produces a constant tension that lies at the very heart of modernity: a tension, as Santos puts it, between emancipation and regulation. Expectations typically produce demands for emancipation from problems currently being experienced: emancipation, for example, from hunger, emancipation from oppression, emancipation from discrimination. Where people’s expectations remain unfulfilled, the discrepancy with experience demands to be addressed through advances in knowledge or superior ways of organising things and people. If such emancipatory aspirations are to be meaningfully met, however, they need to be secured in a reasonably ordered manner over time. This is where regulation comes in: regulation institutes the meeting of expectations in an enduring way across the whole of society. It is, says Santos, ‘the set of norms, institutions, and practices that guarantee the stability of expectations’ (Santos 2002, p 2).

Consider an example. The experience of great inequalities in society has led to many demands for improvements towards more equal treatment. One such demand for equality concerned citizens voting in state elections: the demand that all adult men should be treated equally before the law, irrespective of how much property they owned or what colour their skin was. If achieved – and this emancipation often took a great deal of time and effort in the face of entrenched hierarchies and interests that did not want things to change in such a way – these equalities were best protected through legal regulations: equal rights for all men guaranteed by the law and the courts. But the expectations that the principle of equality could offer did not rest there. It pointed to further discrepancies between experiences of unequal treatment and the ideal of equality. Discrimination on the basis of gender was one such discrepancy. To remove it, regulation was again required. Thus legislation was passed to secure equal treatment of citizens irrespective of gender. And so on: once some measure of equality is achieved expectations may again increase, or the demand for equality be made in different areas of social life. The legal recognition of same-sex marriage in many countries is a recent example of this. Based on a principle of non-discrimination, the recognition of the desire for emancipation – freedom from the state deciding which gender a person may marry – has resulted in new regulations being established. In this case the notion of progress looks like this: (1) experience of discrimination (same-sex marriage outlawed); (2) demand for emancipation (on the principle of equal treatment for all citizens regardless of gender); and (3) new legal regulation (same-sex marriage legally guaranteed).

So there is a constant dynamic or tension in modernity between emancipation and regulation. As expectations criticise experience on the basis of certain principles – equality, freedom, justice and so on – they seek predictable protection through regulation. Of course, not just any and certainly not all expectations are met. Which ones are is usually a matter of protracted legal, moral and political struggle and debate. In this respect modernity’s notions of possibility and progress include a wide variety of very different emancipatory political movements, from liberalism and libertarianism to socialism and communism. And if these theories conflict, what they share is the same dynamic that fuels modernity’s unrelenting drive for improvement.

We can find similar demands for progress across nearly all fields of human endeavour. From the late eighteenth century, developments in science were linked to dramatic changes in the fields of production and the economy, culminating in what became known as the Industrial Revolution which was particularly associated with the rise of capitalism. Driven in part by new scientific inventions, such as the steam engine and the mechanisation of production, the Industrial Revolution was a transformation of methods of production and a near-miraculous improvement in European societies’ capacities to produce goods. This impetus is still widely prevalent today, albeit in new forms. In technology, for example, there remains a constant drive to improve reliability, efficiency and speed. People seek faster computers, larger memory storage, smaller phones, lighter tablets. The rate of technological development in computing is exponential and provides perhaps the most striking exemplar of the much noted claim that in modernity (unlike in long stretches of pre-modern history) the world people will die in will differ enormously from the world they were born in. The discrepancy between experience and expectation thus continues to drive demands for new knowledge and better application of it. New technologies emerge – in programming, nanotechnology and the like – to meet the desire for ever-improved communication. Likewise in medicine and bio-technology, scientific discoveries are constantly being sought in the effort to eradicate disease and improve health. Again the idea of progress, the desire continuously to make the future better than the past, drives activities across disparate areas of human experience and enquiry.

Of course one need not be an old-fashioned Luddite to realise that technological ‘progress’ may be a double-edged sword. The same technology that links computers for purposes of efficient global communication can also be used to knock out air traffic control systems, allow identity theft, or disrupt finance and supply chains, quickly putting the well-being of countless people in jeopardy. The very materials that are used literally to drive the engines of modern life – coal, oil, nuclear fuels – also produce emissions that threaten the earth’s environment and the species it sustains. And the same scientific study of radioactivity used to improve diagnostic health techniques, for example, has also been deployed in developing nuclear weapons that could destroy human life on the planet. There is, then, an ambivalence about progress in modernity that should not be forgotten or downplayed.

Specialisation of knowledge and the individual

It is in this context that we are going to be exploring many facets of modern law in the chapters that follow. But for now, two other aspects to modernity should be mentioned. First, an increased specialisation is observable throughout human life. Second, ‘the individual’ appears as a category of knowledge and action in a decisively new way. We shall say something about these briefly here, but aspects of both will be taken up in more detail later. (The meaning of the division of labour will also be taken up separately.)

The idea of a ‘Renaissance man’ – someone who was knowledgeable across the full range of human enquiry, in mathematics, science, art, literature and so on – was made much more difficult as modernity progressed. There is an occasional light-hearted debate about who was the ‘last person to know everything’, but no one ever suggests this is possible beyond the nineteenth century. This is because in the later course of modernity, new disciplines emerged in which the production of knowledge became increasingly varied and specialised. A quick look at the list of departments in a modern university is an excellent way of seeing how knowledge production and dissemination have been divided up into highly specialised units. Most of these disciplines were inventions of modernity, some of them far more recently than you might think: economics departments, for example, were creations of the nineteenth century; likewise sociology and statistics, with criminology and psychology later still. And so too in medical sciences: the specialisation to be found within faculties of medicine follows the fragmentation of knowledge production into ever more distinct areas, often as a result of the application of new technologies developed elsewhere.

The invention of new branches of knowledge, each with their own modes of enquiry and validation, meant the rise of experts at the expense of generalists. On the one hand, these experts track the developments in modern society associated with the idea of functional differentiation. Here we find the increasing differentiation of social systems within society that provide their own standards of operation and action that are not subsumable within one single overarching set of principles. As we proceed, we will see how the legal system comes to be treated in precisely this way: as a domain of knowledge and practice separate from, albeit interrelating with, politics and morality, or from the rationality of economic or aesthetic criteria. In jurisprudence, the emergence of legal positivism, for example, is one symptom of this, as are the development of systems theory and autopoiesis as explanations of how individual social systems perform different and irreducible functions within modern society (see ‘advanced’ sections below).

On the other hand, such theoretical investigations not only created new knowledge, they created new subjects of knowledge. Psychology and radiology, for example, are not only new subjects (meaning new disciplines), but they produce new subjects in the sense that they produce definitions and attributes of people that did not exist before. Among the most startling achievements of this development was the creation in modernity of ‘the individual’. This sounds strange, but it is analogous to the idea that the teenager was an invention of the 1950s. Of course there had always been youth who had lived in their teens; but it was only with the films of James Dean, beat poetry and the invention of cool that the category of ‘the teenager’ came into being, which could then in turn be analysed, demonised, marketised and so on. So too with the individual. There had always been individual people; but the category of ‘the individual’ was a product of modernity. This new subject of knowledge was produced by the work of numerous new disciplines and was given distinctive features – individuality, uniqueness – rather than a person’s life being determined by tradition, status or family or by the dominance of religious authority. From these latter, individuals were emancipated, unless of course, they themselves chose to participate in them.

Following the dynamic of emancipation and regulation we just identified, the emancipated individual was to be protected in turn by legal regulation – this time in the form of newly conceived individual natural or human rights. Thus individuals were deemed to have rights to freedom of religion and of conscience, the right to private life, freedom of expression and association and so on, which attached to and guaranteed the idea of the priority of the individual. In this way the individual came to be treated as the basic unit of society: society could now be understood to be formed by collections of individuals, rather like atoms making up complex molecules, whose individual worth was guaranteed by the law in the form of individual legal rights.

But again as we saw in several instances earlier, there may be an ambivalence to this development in modernity. On the one hand, the individual could in theory do what they wanted to do, and be who they wanted to be. But on the other, the category of ‘the individual’ was itself a creation of forces, institutions and forms of knowledge over which no one individual could have control. Individuals were defined, in other words, by social systems – the legal system, the education system, the economic system – according to their criteria (legal personality, examination grades, profit and loss and so on) which any one individual did not and could not create. Moreover, families, religious ties and social classes did not cease to exist, nor did their influence necessarily decline uniformly. Hence the ambivalence: the ideal of the emancipated individual did not describe everyone’s experience, especially when the powerful and uneven effects of poverty, gender or ethnicity were taken into account.

Thinking about modern law

So far we have sketched an outline of what modernity is, how it is energised and some ambivalences that appear to accompany it. We will delve deeper into aspects of all these, and more, as we explore our themes.

Of course, from our point of view,...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements and attributions
• Abbreviations
• Introduction
• PART I: LAW AND MODERNITY
• PART II: LEGAL SYSTEM AND LEGAL REASONING
• PART III: ADVANCED TOPICS
• Index