Wednesday, March 21, 2012

The problem with Normativity

The problem with normativity is that "the ideal is always threatening to collapse into the real" (Pierre Schlag). Essentially, the danger is that what we should do, will simply become that which we already do. At that point there is nowhere else to go. Critical reflection ceases. Normative evaluation ceases to be fruitful because all it does is tell us to do what we’re already doing. What’s the point of that?

For this reason, a critical stance is preferable to a normative stance.

Monday, March 12, 2012

I am the Law: Critical Pragmatism

The Law is something. We all seem to agree on that. But none of us seem to agree on what it is. In fact in order to define the Law, a person must resort to some theory about law, which the Law itself cannot provide. This lack, this inability of the law to tell us what it is, makes the law seem somewhat like a void. Different people fill this void with different meanings. Therefore, the meaning of the law, is aporiatic. It exists, but at the same time does not, because it can only be determined by reference to some
outside theory. It has no independent existence as existence.
Now, my feeling in the past was that the utter indeterminacy of law made it somewhat of a non-entity, without any kind of existence. However, even phenomenologically, the law seems to persist. Within our minds we struggle against the Law, perhaps as a way to resist the gaze of a popular paradigm, or else to protect what we perceive the popular view of the Law to be from a minority view. (Critical Phenomenology of Judging, Duncan Kennedy, p. 53).
Therefore, the Law does have some kind of existence, even if it is a contingent existence. It occurs to me now that a critical approach does not deny the existence of the Law; Rather, I accept that the Law's has several beings, with no apparent way to rank which theory controls. Because, for instance, the standards by which a textualist would judge an ontology of the Law are are incommensurate with the standards which a pragmatist would use to judge the same interprative paradigm. Because there is no intervening, superseding Master standard which can authoritatively say what the Law is, we are left with many equally suitable definitions for what the law is. As a result, the ontology of the law is dependent on what legal theory one accepts.
From here it is clear that a critical approach gives up on the impossible game of saying which theory is best, because there is no objective plane from which to view the multiplicity of theories. A critical approach is a pluralistic approach which accepts as given every theory of what the law is, especially contradicting theories. Then, going from there one must weigh options, make arguments, and render decisions. A pluralistic approach is ultimately a pragmatic approach, but also one that accepts the limits of discourse, and as such recognizes that at the bottom of each decision is an act of pure will; therefore, whatever binds in the law is internal to the subject (i.e. the gaze, desire for certainty, fear of censure, etc.): The subject cannot be detached from the unit of analysis.
I am the Law. But the Law is not free.