Thursday, June 9, 2016

LSA Panel Summary: “Law As…”: Law, Method, History

[We are very grateful to Dr. Chloë Kennedy, Lecturer in Criminal Law, University of Edinburgh, for this excellent summary of a panel at the recently concluded annual meeting of the Law and Society Association.]

Law and Society Annual Meeting 2016: Belonging, Place and Visions of Law and Social Change
“Law As…”: Law, Method, History Roundtable Session

The subject of this roundtable session was the “Law As…” project – a series of biennial symposia instigated by Chris Tomlins (Professor of Law, UC Berkeley) in 2010 that aims to steer legal history, considered by some to be a cautious and conservative field of study, towards novel interactions and new ways of thinking about law. In particular, the project seeks to move away from the “Law And…” model of interdisciplinarity, which examines law in light of an ‘external’ context (e.g. “Law and Economics”, “Law and Society”, etc). Prompted by fatigue with the seemingly endless contingency and complexity generated by the “Law And…” mode of inquiry, the aim of “Law As…” is to explore whether legal history can be seen as having theoretical content and, if so, what this might look like.

Three volumes of symposia contributions have been published to date (here, here, and here), and it is anticipated that the proceedings of future symposia will be published elsewhere.

Participants of the roundtable included Kirsten Anker (Associate Professor of Law, McGill University), John Comaroff (Hugh K. Professor of African American Studies and of Anthropology, Harvard University), Marianne Constable (Professor of Rhetoric, UC Berkeley), Luis Eslava (Senior Lecturer in Law, Kent Law School), Genevieve Painter (Postdoctoral Fellow at McGill University and Director of the McGill Centre for Human Rights and Legal Pluralism), Kunal Parker (Professor of Law, University of Miami School of Law), Rose Parfitt (Lecturer in Law, Kent Law School / Australian Research Council DECRA Research Fellow ,Melbourne Law School) and Chris Tomlins.

Rose opened the discussion by asking Chris about the reaction the project has received so far. In his response he explained that its effects were hard to measure (he does not rely on citation metrics) but that a large number of people, from a wide range of backgrounds and disciplines, have expressed interest in being involved. He also mentioned some collaborations that have stemmed from the “Law As…” project, including a forthcoming collection of work on theorizing contemporary legal thought (‘In Search of Contemporary Legal Thought’, edited with Justin Desautels-Stein (Colorado Law School).

The participants then discussed how they had felt on being invited to take part in the “Law As…” symposia, and whether the invitation had spoken to an aspect of the work they were already engaged in, or whether it had opened up new directions for that work to take. Marianne spoke about how the “Law As…” project facilitates critique of sociological methods that deal with a restricted conception of law, confining it to the empirically knowable. For John, “Law As…” was a powerful invitation to think about law from a post-liberal perspective. In his view, it provides an optic for contemplating law that assumes its dialectical entailment in everything. He talked specifically about law as currency, commenting on its ability to be concrete and abstract at once and its capacity for commensuration. He added that to take seriously the theoretical challenge of “Law As…” would require making sense of law’s semiotics and materiality. 

Kunal described the “Law As…” symposia as “densely packed” and “intellectually exhausting” and asked questions about the conception(s) of history that is/are reflected in “Law As…”. From Kunal’s perspective, “Law As…” provided a chance to deconstruct what he describes as reigning notions of context. In his view, historians do not take seriously the problem of historical context: how law as an object speaks back to context and how we might rethink context through law.

Genevieve experienced a sense of liberation on receiving the invitation to participate in “Law As…”: a sense of being allowed to do whatever she wanted. Having recently completed grad school, where she was always “crashing in to programmatic areas”, this was a welcome opportunity for her.

Kirsten, who works on indigenous law, spoke about the recent turn taken by “Law As…” towards a “minor jurisprudence” (the theme of the fourth “Law As…” symposium, which will be held at Berkeley in December 2016). This has encouraged her to explore the minor jurisprudence of indigenous claims, which she described as a counter-movement to the dominant paradigm. She is concerned with the ecological space we inhabit and plans to consider how “emplaced knowledge” enables our understandings of law, paying attention to the particularities of place and avoiding totalizing or universalizing analyses.

For Luis, the directional equation of “Law As…” invites us to think radically about law and how it usually presents itself as a self-contained realm of meaning and action. To him, conceiving of law as anthropology provides a valuable perspective from which to consider the historical moment at which colonial officials transformed international law into an ethnographic enterprise.

Following these reflections, John asked Chris whether he had thought of titling the project “…As Law”, instead of “Law As…”. In John’s opinion, this alternative title captures the movement of the moment: the judicialization of everything. Chris replied that the current formulation was not intended to exclude the possibility of considering “…As Law” but that his primary objective had been to challenge “Law And…”, its separation of law from whatever follows the ampersand, and its intellectualization of the connection between the two. According to Christopher, “Law And…” has left historians “running on the spot” for more than 100 years. Genevieve wondered whether “Law As…” might lead to similar stagnation and questioned the importance of knowing what the “as” is doing.

At this point, the discussion moved on to the critical nature of “Law As…”. Luis suggested that focusing on law as law, as advocated by Shaun McVeigh (Melbourne Law School) in the second symposium, brings to the fore the most conservative but radically destabilizing understanding of law. Chris suggested that the time may have arrived for scholars to refrain from criticizing law and to regard it as a resource to better understand and thus better deploy. John expressed concern about treating law as an end in itself rather than a method, citing the post-1989 fetishization of constitutions as an example of the way law has been used by nations to “launder” themselves. Chris then commented further on the radical potential of treating law as an end in itself and spoke about Jehring’s ‘Law as a Means to an End’ as an important influence on Pound, who in turn influenced both orthodox jurisprudence and radical critique in the 1980s and 1990s.

One audience member asked whether “Law And…” was connected to the Western colonizing project of presenting law as universal and neutral and queried whether “Law As…” was intended to be part of the global movement to contest this. Chris said that it was and that the forthcoming symposium would enforce this point. He added that although “Law As…” began as a challenge to American historiography, it has since evolved.

These last remarks perhaps indicate why there was relatively little discussion of historical method during the roundtable. While the project began as a project about the politics of method in the context of legal history, it has developed over the course of six years to become a project about the politics of interdisciplinarity in the context of the study of law. Regardless, the contributions were fascinating and presented numerous challenges to those working in and with legal history.