Jurisprudence as Ideology

Valerie Kerruish

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781134879861
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In Jurisprudence as Ideology, Valerie Kerruish asks how it is that people who are put down, let down and kept down by law can be thought to have a general political obligation to obey it. She engages with contemporary issues in socialist, feminist and critical legal theory, and links these issues to debates in jurisprudence and the philosophy and sociology of law.

1
A Realist Concept of Ideology

Our knowledge is social, therefore it is relative to our way of life. That is one of the most celebrated conclusions of this century’s social theory. It raises a puzzling question for a culture which prizes science very highly. How can we continue to believe in science? How can we continue to think it possible to ‘find something out’? Whatever we think or say is the case must reproduce the socially constructed character of our thought and language.

No doubt it must, but that is not to say that our thought and our language stand between us and the world like a brick wall. They mediate our perceptions and conceptions in some way or another which is profoundly significant. If we make that mediation a domain of inquiry we may be said to be studying ideology—ideology, that is, as it is understood to be within a framework of thought that is realist and relational. The use towards which a realist concept of ideology is put, is in developing an approach to the problem of the relationship between thought and reality, where reality is presupposed as that which is what it is independent of thought. To put that another way, a realist concept of ideology makes the relation between thought and reality an object of inquiry. In this work, it does so for a quite specific purpose, the purpose of seeking a practice which will contribute towards getting rid of social relations of material inequality.

Now this is not quite the path that mainstream philosophy has travelled, and the absence of serious concern with ideology in Jurisprudence reflects that. But neglect of ideology in philosophy and Jurisprudence should not be thought to indicate lack of awareness of or concern about the questions raised. On the contrary these are questions of contemporary debate in metaphysics, epistemology and philosophy of science. They are also touched on in Jurisprudence, mainly in discussions of method.

So this inquiry into Jurisprudence as a form of ideology begins, in the heartlands of philosophy, with an elaboration of a realist conception of ideology. Such an elaboration is not just a matter of explanation of my use of the term ‘ideology’. There are strong philosophical claims to be made in this chapter. They give the theoretical context for my claim that examination of Jurisprudence as a form of ideology reveals the social phenomenon of rights fetishism. We are involved here with realism in some of its many variants, as well as with the rich texture of competing conceptions and theories of ideology. Centrally, the argument of this chapter is that we can handle the undeniably social character of our knowledge, while hanging on to the idea of reality as that which is the case, by means of a conception of ideology which has both a neutral and a negative sense. What a perception of rights fetishism does, is propose a theory of how and why neutrally ideological thought becomes negatively ideological. But that is a much longer argument to which the chapters following this one are devoted.

The plan used is as follows. In the first section, having re-stated what I understand by these two senses of ideology, I ask the question, ‘What does it mean to talk of ideology as neutral and as negative?’ Neutral and negative vis à vis what? This will give us an approach to some popular understandings of ideology. The second section gives the context of a realist conception of ideology by mapping out the version of realism being used here. From this context certain concepts that are basic to a realist and relational social theory are developed. These are concepts of social relations, social practices and standpoint. The third section considers the function of the conception of ideology being elaborated. Using Barker’s formulation that the central problem of ideology is to trace the way in which reality appears, it explains in more detail what the problem is, and why and how it arises within a realist theory. The final section draws these strands of form, context and function together so as to give the substance or content of my approach to the relation between thought and reality. So we come to the point of developing and applying a realist conception of ideology in an analysis of Jurisprudence.

Conceptions of Ideology

I have already suggested that ‘ideology’ can be understood as having both a neutral and a negative sense. Within this understanding, ideology in its neutral sense encompasses more or less complete systems of ideas produced in societies whose basic social relations are relations of material inequality. Theories which justify such materially unequal social relations, directly or indirectly, are considered as being negatively ideological.

A bivalent use of the term is part of its history. The term ‘idéologie’ was coined by the French liberal philosopher, Destutt de Tracy, at the end of the eighteenth century as the name for the sensationalist philosophy of mind he and his colleagues in the Institut National (‘the ideologues’) were developing. In this original use of the word, there was no negative or critical connotation. On the contrary, it was intended as the name for ‘the science of ideas which treats ideas or perceptions, and the faculty of thinking or perceiving’ (Head 1985:32). The intended contrast here was with the pre-scientific metaphysics of the past. Within a few years, as the political relations between the ideologues and Napoleon Bonaparte deteriorated, the term was used by Bonaparte in a pejorative sense to attack those democratic theorists who ‘mislead the people by elevating them to a sovereignty which they were incapable of exercising’ (Williams 1976:154).

This two-way use of the term has continued through the nineteenth and twentieth centuries. There is a substantial literature on it in contemporary social theory (e.g. Bhaskar 1979; Keohane, Rosaldo and Gelpi 1981; Larrain 1979; McCarney 1980; Thompson 1984). Within this literature a variety of competing conceptions of ideology and theories of ideology are put forward. I do not argue that there is one true meaning of the term ‘ideology’. I accept the contextuality of meanings. In this chapter I elaborate a conception of ideology contextualised by a version of scientific realism.

What motivates this task is the perception of Jurisprudence as a source of understanding and of misunderstanding of law; misunderstanding which, in its failure to make an inquiry into the complicity of legal practices in the reproduction of social relations of material inequality, has become part of that process. To put that another way, Jurisprudence is stuck in the dogma of law’s innocence. To free it and ourselves we need a conception of ideology which can cope with the generation of that dogma.

For dogma, like any other form of thought, is produced and its processes of production can and should be examined. It is not enough to assume bad faith, whether in terms of egoistic selfinterest, wilful exploitation, misogyny or chauvinism. Insofar as these are phenomena of the human condition there is no more reason to say that they are a natural part of our genetic programme than are the capacities humans have shown for social life—by which I mean simply life with and for others. A very early comment on law is Sophocles’ observation in Antigone that man has ‘found out the law of living together in cities’ (Sophocles 1947:135). This simple optimism is expressed by a chorus celebrating the mastery of the human species over the earth. Yet it is followed by a chorus proclaiming the absolute sovereignty of the gods:

For what presumption of man can match thy power,
O Zeus, that art not subject to sleep or time
Or age,…

(Ibid., 142)

Antigone bears a simple contemporary interpretation as a drama of the limits of human understanding and capacities. Discoveries of some things in or about social reality, though they may be expressed as true statements or propositions, are always limited in the extent to which they enable us to cope with or change our environment by what we do not know. Though we describe what we know or think we know about social reality in propositional form, social reality is not a collection of isolated facts. It is complex, and if considered as a whole, cannot be known absolutely or infallibly.

This is not only a question of extent. We cannot, even in principle, consider knowledge and understanding as a cumulative process on a linear trajectory toward absolute knowledge. Not only is the physical world constantly changing, but human practical activity is a factor in that change. Since practical activity is intentional, that is, since we act for particular purposes and with particu-lar understandings of how those purposes are to be achieved, human thought and its expression in language and action is similarly participant in the construction of social reality.

A conception of ideology, formulated within this way of looking at things, constructs a domain of inquiry which takes ideas as objects. It may then consider them against some standard of value or consider their generation and effects. Differing notions of and about the value of ideas give content to the senses in which sets of ideas can be referred to as negatively or neutrally ideological. Not surprisingly, therefore, links between different conceptions of ideology and different uses or understandings of the value of ideas can be drawn.

We can begin with a very simply stated position.¹ The value relevant to ideas is truth. Its opposite is falsity. Theories are either true or false. If they are true they are scientific and if they are false they are ideological. The second position is only a little more complex. Truth and goodness are conjoined values, at least where practical reasoning (that is reasoning about what is to be done) is concerned. So theories which are practically ignorant or are indicative of false consciousness are ideological in the sense of irrational.

A third position begins from the idea of knowledge as power and considers ideologies as belief systems or as political consciousness. Ideology, in this context, is a social and political notion rather than an epistemological one. Ideology is conceived as a mechanism or function of power. It will be seen as all-pervasive insofar as power relations are taken as constitutive of social interaction and it may be used in a neutral sense as meaning simply that (inevitable) part of discourses which deals in power, or it may be used negatively as ‘essentially linked to the process of sustaining asymmetrical relations of power—that is to the process of maintaining domination’ (Thompson 1984:4).

Ideas are valued then in terms of truth, goodness and effectiveness vis à vis the will to power, and differing conceptions of ideology reflect this. Obviously enough, notions of truth, goodness and power are themselves very variably conceived. But at this stage I want only to note that if ideology is used in a negative sense, an elaboration of that sense will involve a particular theory of knowledge, or of practical reasonableness, or of political relations of domination and subordination, or of some combination of these. On the other hand, if ideology is used in a neutral sense, it will be being considered primarily as a social phenomenon.

If ideology is conceived in both a neutral and a negative sense, it becomes a fundamental concept of social theory and philosophy. That is to say, it is a concept which works to place other notions and ideas into relation with each other, presenting a different map of ideas than, for example, one which considers ideology as concerned only with false ideas. The conception which I am putting forward, considers that questions of truth, of how we ought to act, and of the role of ideas in the human construction of social reality, are all relevant to ideology. So it rejects the traditional philosophical construction of separate domains of metaphysics, epistemology and ethics. But it re-forms rather than rejects these traditional philosophical inquiries and arguments. So it does not take the anti-epistemological view of contemporary pragmatist, poststructuralist and postmodernist philosophers and sociologists (e.g. Rorty 1980; Hindess and Hirst 1977; Douzinas and Warrington 1987).

This is why I adopt Barker’s formulation of the problem of ideology as being to trace the way in which reality appears. For this formulation takes up a metaphysical and epistemological position in using the notion of reality and in supposing it to be knowable.

Social Relations, Social Practices and Standpoint

Two issues addressed in this formulation call for further elaboration. First, what is this metaphysical and epistemological position? It is excessively vague to speak of ‘using the notion of reality’ and of ‘supposing it to be knowable’ for there are many traditions which call themselves or are called ‘realist’. So it is necessary to spell out the understanding of our social life and of human capacities for knowing intended by it. This is partly a matter of location within a tradition of thought and partly a matter of developing or modifying that tradition. Thereafter the dimensions of the problem of ideology can be spelled out. This is the second issue and it calls for further elaboration because it is neither self-evident nor descriptive of any essential function of the concept of ideology. It is a problem which arises within the version of realism being espoused. Outlining its dimensions is thus a further elaboration of the realist conception of ideology with which this chapter is concerned.

The version of realism in question is commonly termed scientific realism (Benton 1984; Bhaskar 1978, 1979; Bottomore 1983; Cain 1986; Keat and Urry 1982; Kerruish 1987; Sayers 1985). There are, however, sufficiently important differences between the theories of ‘scientific realists’ to put us on notice that little is to be learned from the label. What little there is may be stated as follows. First, it calls attention to the development of these theories having been within philosophy of science and of social science. Second, the label indicates a concern to hang on to the idea of science as a relatively secure form of knowledge of an objective reality. Third, the label is often used to distinguish direct realism and common-sense realism from scientific realism. Direct realism is the view that we have direct access to reality (see Sayers 1985:58–63). Common-sense realism is the naive empiricist view that there is a real world of sensuously perceptible objects of which we are aware through ideas which correspond to or mirror nature.

A realist framework

The realist theory of this essay falls within the label in all these ways. However, to define it further, and to do so in its own terms, rather than by articulating it to debates with which readers may not be familiar and with which we have no direct concern, I shall list and explain its constitutive assumptions as briefly as possible. Thereafter I shall flesh out these assumptions into basic concepts of a social theory. Debates around realism which do concern ideology are dealt with in subsequent sections.

First there is an assumption (R) that there is a world with a being and nature independent of human consciousness which is knowable through consciousness. This assumption is compatible with philosophical positions as diverse as Platonism and empiricism because that ‘independent world’ could be forms or ideas—‘transcendent realities directly apprehended by thought’ (Flew 1984:273) or it could be the mind-independent realm of sensuously perceptible objects—the common-sense world of everyday life in which the garden furniture stays in place whether or not anyone is perceiving it.

Platonist realism can be distinguished by qualifying R to assert the mind-independent existence of a physical world, but it is also distinguished by supposing (K) that knowledge of this independent realm is indirect, that is, is mediated by ways of thinking already embedded in human culture, and (F) that such knowledge is fallible. The common-sense realism of empiricism is distinguished by a dialectical assumption (D) that human being is to be understood as being in unity and in opposition to nature. Human being is part of nature—as much and as little components of a whole as stones and stars, trees and animals. So the subject-object dualism of empiricism is rejected and with this rejection the basic characterisation of human beings as knowing subjects of a perceived or experienced world is rejected too. Spinoza is said to have conceived nature as thinking (Ilyenkov 1977:32) and I understand that to mean that it is human beings as part of nature who think. However, in practical activity, human beings intentionally change their physical environment and construct a social environment appropriate to many different ways of life. The oppositional aspect of this relation then gives us a reference for the idea of culture.

What this assumption (D) does is take a relation as the denotation or referent of two concepts, nature and culture. This is in no sense exceptional. A dialectical theory is a relational theory in which all concepts are considered as products of social practices through which human beings relate themselves to their environment. Thus while reality is understood as that which is, independent of human consciousness (so that ‘reality’ itself is conceived relationally), social reality must be introduced as the actual, that is the lived, environment of human being. As a concept, the notion of social reality in use here, participates in both the idea of having been made, that is, of constructedness, and of independent being. This is not incoherent. The independence relation is a relation of individuals to social reality. This comes in because it is individuals who act and who speak. But they do so from within a relation with others and with their physical environment which, however it is conceived, will exert its influence on understandings of self and other. Thus, finally, (SR) social relations are taken as the basic objects of social science.

Social relations

By social relations I mean persistent ways in which individuals and groups of individuals relate and are related to each other within and by a specific natural and cultural environment. ‘Individuals’ is an ideology-laden term and as we move through the argument of this book I shall move away from using it. For the moment, though, I use it to mean simply those physically identifiable human bodies which act and speak and think and to which intentions are ordinarily attributed. Social relations are not reducible to individuals, but then neither are individuals reducible to, in the sense of being fully determined by, social relations. Thus a realist and relational theory does not deny the being and significance of individuals. It insists, however, that individuals do not exist and cannot be com-prehended in abstraction from their relations with nature and with each other (Bhaskar 1979, Ch. 2 esp. pp. 39–47).

If this is a little difficult to grasp, not the least reason for the difficulty is the recurring and perverse tendency in Jurisprudence and in much social theory and philosophy to suggest that there are only two classical models for understanding society, namely the individualist model and the collectivist model. The individualist model supposes societies to be aggregates of human individuals held together by bonds of will or reason. The collectivist model, on the other hand, considers the social to have an of-itself reality to which the individual and all its attributes are secondary. A relational theory rejects both these models. It works on a third, classical social model, within which the individual and the social are each conceived in terms of the other. As Marx puts it: ‘…we must avoid postulating “Society” again as an abstraction vis à vis the individual. The individual is the social being’ (Marx 1964:137–8). In other words, relational social the...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Series editors’ preface
• Acknowledgements
• INTRODUCTION: THINKING ABOUT JURISPRUDENCE AS IDEOLOGY
• 1 A REALIST CONCEPT OF IDEOLOGY
• 2 THREE CONCEPTS OF LAW
• 3 TRADITION, AGREEMENT AND ARGUMENT IN JURISPRUDENCE
• 4 THE JURISPRUDENCE GAME: THE LEGAL CONSTRUCTION OF OBJECTIVITY
• 5 RIGHTS FETISHISM
• 6 AGAINST JURISPRUDENCE: THE EXCLUSION OF STANDPOINT
• 7 BY WAY OF A CONCLUSION: STANDPOINT RELATIVITY AND THE VALUE OF LAW
• Notes
• Bibliography
• Index