Sunday, August 28, 2011

History is the story of the Present

History is not the past. History is the story of the now - specifically how and why it came to be. For this reason, history has no objective existence. History is a story. Stories are nothing but representations. Furthermore, there are many versions of this representation, and it will change according to the teller. Also, it cannot be said that there is one meta-story to rule them all, because we lack the power to determine which, if any, is true. We can’t even say for certain if there is an objective truth to history.

As such, history is not primarily shaped by what happened (in the past) but what is happening (in the present). History is being written write now. Furthermore, the History that we know is based on a shifting nexus of power relations. For instance, historians will talk about authoritative texts or the credibility of a source. How are these authorities (power-relations) determined? They are determined by the struggle between the dominant discourse - who get to say what is authoritative now - and the dissenters - who through struggle may supplant the dominant discourse and change that which is authoritative. This is not to say that history is wrong, but merely to say that history is made by power. Knowledge in general is not divorced from power, but is in fact a product of power (and thus ideology). Michel Foucault was particularly important to our development of this understanding. John McGowan said of Foucualt's work, "In this holistic model, 'there is no outside.' (Foucault, 1979). There is no disinterested or objective knowledge, just as there is no autonomous self."[i] Foucault wrote:

"Perhaps we should abandon a whole tradition that allows us to imagine that knowledge can exist only where power relations are suspended and that knowledge can develop only outside its injuctions, its demands and its interests... We should admit rather that power produces knowledge (and not simply by encouraging it because it serves power or by applying it because it is useful), that power and knowledge directly imply one another, that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not pressupose and constitute at the same time power relations."[ii]

History is a discipline because there are rules, and for rules to mean anything someone or some group has to enforce them. Who enforces the rules? Well in the knowledge-discipline of history it is other historians. For instance, to be published, you must satisfy a journal editor and peer reviewers; to be considered interesting enough to add to the story of history (i.e. to be quoted), you must satisfy the entire community of historians; and to be considered authoritative, you have to impress even more people. Therefore, history is controlled by a complex web of relations that impact how the story comes out.

Therefore, reading histories, it's not enough to consider the political motivations of the authors - though they likely affect their conclusions. Instead, one must consider the entire field that constitutes knowledge-power, and how that affects the outcome of the story. This is likely what Michel Foucault was getting at when he said he wanted to write a "History of the Present". He wanted to write a history that recognized that power is essential to any understanding of history and cannot be divorced from its study. Furthermore, the source texts, upon which our histories are based, are products of other complex nexuses of power-relations, and therefore, need to be considered as such. The question is thus, how did they constitute themselves (as subjects and objects in a web of power relations), in order to perceive the world in such a way? And, how is it that we now constitute ourselves differently, in order to perceive the world in a different way? The story of the past is, in this way, more about how we think now, and less about what really happened then. Michael S. Roth explains it like this, “Writing a history of the present means writing a history in the present, self-consciously writing in a field of power relations and political struggle.”[iii] Reading and writing history is a political act, and should be recognized as such. Furthermore, to participate in this activity requires a great deal of introspection and self-criticism. History is an exercise in power; it shapes how we perceive, and relate to, ourselves and others. Therefore, history should be handled with great care and attention, because it is so critical to our present and future.

One final note, this discussion should also make us pause and think critically about how the story of history is shaped by the dominant discipline of positivism. Thus, it should not surprise us that the story of history is basically the story of the progress of science and rationality. There may be some validity to this, science did have a roll in opening-up new modes of thought, but a critical reader should recognize this is not the whole of the story. Science too is a product of power, and can be just as freedom killing as other disciplines of knowledge-power. Therefore, avoid scientism.

[i] Foucault, Michel. Discipline and Punish: the Birth of the Prison. New York: Pantheon, 1977. 120-21. Print.

[ii] McGowan, John. "Postmodernism and Its Critics." Google Books. Cornell University Press. Web. 28 Aug. 2011. .

[iii] Roth, Michael S. "Foucault's 'History of the Present'" History and Theory 20.1 (1981): 32-47. EBSCO. Web. 28 Aug. 2011. .

Saturday, August 20, 2011

The Rule of Law

The Rule of Law is a concept that is very important to the legal profession, because it is upon this rock that the legal establishment builds its legitimacy and prestige.

The idea of the Rule of Law is that the law, and the law alone, controls the direction, process and outcomes of the legal system. Therefore, no person, no matter how powerful or influential, is above the law. The courts do not make the law, they merely enforce the law. Based on this logic, the decisions made in courts of law are - or at least should be - impartial, objective, and immutable. Like a prophet is a mouthpiece for God's word, the legal system is a mouthpiece for The Law - and deserves to be respected and honored on this basis. Where the legal system fails to accurately uphold the law - we are told - the legitimacy of the system is questionable.

The real shtick with this line of thinking is that in order for the law to rule, regardless of the people, there needs to be some kind of objective legal rule to follow. The problem, of course, is that there is almost never a clear legal rule to follow. Every legal pronouncement is subject to interpretation. If there were simple, objective legal objects about which everyone agreed, then we wouldn't have so many legal disputes. Furthermore, through the course of these legal disputes people, largely legal professionals, end-up assigning meaning to the law - in other words, they make the law (which did not really exist beforehand). Therefore, it is not enough to say that the law determined the outcome - the law does not have a will, it cannot determine anything (Schlag, 1998) - instead, it is more accurate to say that people infuse their will into the law in order to make it speak, and thereby determine the outcome. Thus, we find behind the proverbial wizard's curtain, not A Law that Rules (Rule of Law), but fragile mortals with their hands on the levers of power.

(For a more in depth discussion about the inherent ambiguity and contingency of all language, including law, read Derrida, Foucault, and Schlag).

Now, people - especially in the legal profession - will interact and exert social pressure on one-another in a way that will tend to enforce a set off norms. These norms can easily be mistaken for the "Rule of Law." But this nexus of social pressure is always driven by people, who make the law in the very act of enforcement. Now, I happen to believe that a certain degree of social coercion and even violence is inevitable, and I would like to be able to preserve the prestige of the legal system in order to be able to use it to make a good living some day. However, I do not want to whitewash the inherent fuzziness and moral ambiguity involved in legal practice. And I certainly don't want to pretend that there is some magical, objective, form-of-law which justifies all the violence and ugliness that has been perpetuated in the name of law and order. The law as mystical objectivity does not exist, instead there is only the law as we people apply it. We have always and will always have the power to shape the law into forms that are either more or less horrible.

Acknowledging that the legal system is fueled by people, (who create and enforce norms) is particularly important for us lawyers to recognize, so that we don't become so enchanted with the Law (Schlag, 1998), that we begin to trivialize the impact of our decisions on people. We need to recognize that the violence of the system is a violence for which we are personally responsible. We cannot disavow the pain we cause others. Hopefully, this understanding will serve to somewhat mitigate the violence. But, at the very least it should prevent us from excusing ourselves. There is no Big Other (Zizek, Lacan). We are alone. When bad things happen it is not the The Law that wills those bads things, it is the people who make and enforce the law, which is all of us.