Abstract
The concluding summary of part one summarizes the main points of the constructed theoretical anchor of part I and brings the developed Critical Legal Studies vocabulary together as well as the different taken stand in many identified debates in the context of the ontological status of CLS. An exercise which, when all is said and done, boils down to the fabrication of a personal story. That is, a personal story where the protagonist identifies herself as a twenty-first-century self-critical Crit with methodological syncretist (bricoleur) tendencies and an ethical pluralist outlook. Also, this concluding chapter contains a schematic representation illustrating the relationship between all the relevant concepts of this monograph which simultaneously brings together the Critical Legal Studies’ themes and techniques that are relevant for the subsequent research.
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Notes
- 1.
Unger (2015), p. 29.
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Consistent with the numbers and letters in Fig. 6.1, the following definitions and explanations have been provided in this monograph to the represented concepts and their relationships:
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(α) When it comes to human beings, I have made certain premised claims about their nature (which are important for my definition of law but are by no means attributed with universal and objective value) in this monograph. In general, I have premised that if there is an essence to human nature, this essence comes down to change; to plasticity which cannot exist without context. More specifically, I have premised that human beings have certain capabilities, tendencies and desires. My premised claim in this regard is that human beings have a capacity for abstraction and theory that generates mental models of causality with a tendency to posit causation based on invisible or transcendental forces. Also, it is premised that human beings have a proclivity for norm (rule) following that is grounded in emotions rather than in reason and consequently a tendency to invest mental models and the rules that flow from them with intrinsic worth. As for human desire, I have taken as a premise that human beings desire intersubjective recognition, either of their own worth, or of the worth of their gods, laws, customs and ways of life. In turn, this recognition, when granted, becomes the basis of legitimacy that inter alia permits the exercise of political authority. Moreover, it is premised in this monograph that human beings possess an inexhaustible drive to evaluate, to pronounce what is good and evil, beautiful and ugly, advantageous and disadvantageous.
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(β) A society, of which I (the author of this monograph) am part, has been defined in this monograph as a group of human beings who are dependent on each other for survival and wellbeing and who share a particular way of life, i.e. their social life.
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(Îł) Interests are synonymous to values in this monograph and are defined as whatever human beings find important in their life: The underpinning reasons behind more immediate reasons for acting, for approving action, and for preferring certain ways of acting and states of affairs to others. They are as such themselves not necessarily backed by further or ulterior reasons. In addition to being reasons for certain ways of human behaviour, interests are also the totality of human aspirations and the elements of reflections and astuteness with respect to the pursuit of these aspirations. In the context of politics, interests are the things human beings are concerned about, the things at stake, when shaping their social life. A concrete example of the many human interests, deducible from the overall human desire to be recognized, is the interest to receive recognition of the way human beings have shaped their social life.
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(δ) Ideas are defined in this monograph as creations of the mind to realize an interest. They can come to mind within any context (X). However, when ideas come to mind to realize an interest in the context of politics, they acquire the status of being an ideology. The creation of ideas is possible due to the human capacity for abstraction. Moreover, the human mind is fuelled to create ideas by, inter alia, the interest to receive recognition of the way human beings have shaped their social life.
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(ε) Politics has been defined in this monograph as a complex of interests as well as processes through which such interests are then chosen to be implemented by the public authorities’ apparatus into social life using the law-making. It is a concrete aspect of social life concerned with positive law (lex lata) and law in the making (lex ferenda) as positive law is put to the test with the possibility to be unmade or remade. As such, politics is one of the manifestations of a certain structured patterns of interaction and routine behaviour that can exist in a social order.
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(ζ) Law has been defined in this monograph as a socially constructed instrument for social control by means of affirming and legitimating interests to enable the existence of a social order. More precisely, it has been defined as an interest-laden tool with which we shape our social life by putting forward ideas (ideology) of how society should be organised that has become insulated from controversy.
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(η) Ideology has been defined in this monograph as the ideas giving expression to interests in the context of politics concerning the social order as interests themselves are not tangible or observable. As such, a scholar who wishes to study the interests involved in certain political policies or behind certain laws is designated to the study of ideology on which certain political processes or laws are based. To sum up, the minute an idea (or ideas) is endorsed in the political process and forms the foundation of a law, it is regarded as an ideology. The ideology behind my substantive law example (Solvency II) is the object that will be methodologically trashed (based on my pronouncements of what is good and evil) in this monograph in accordance with the research approach of CLS—CLS being one of the only jurisprudential schools of thought that provides a scholar with a possibility to engage in an ideology critique of law. It is also the object of my law reform design, a research method that has been specifically chosen to compensate for many of the criticisms directed towards CLS. A concrete manifestation of imagining and designing an alternative ideology is the proposition of alternative legal rules based on this alternative ideology.
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(θ) A social order has been defined in this monograph as a truism that is present in all societies, including the most unjust, unequal disorganized and anomic ones. It is a manifestations of certain structured patterns of interaction and routine behaviour in aggregate without which a social life would not be possible. The concrete shape of the social order depends for a large part on the laws that are enacted by politicians. Even though politicians are subjective human beings like you and I, which (inter alia) means that they possess a drive to evaluate and to pronounce what is good and what is evil), they differ from other human beings by their accountability to their constituents.
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(A)The relationship between human beings and ideas is complex. Even though human beings are the creators of their ideas, ideas are in turn capable of capturing their creators; ideas can mould their creators. Also, ideas possess the potential of becoming self-fulfilling prophesies. As such, ideas are an important source of influence on society. The extent of this importance is magnified when ideas enter the political realm and become ideologies since ideologies have a more direct influence on society by shaping the social order.
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(B)Ideologies, which eventually derive from politicians, bring their own complications to the table. Namely, due to filters of interpretations and the law of unintended consequences, ideologies can shape the social order in a very different way than anticipated by the interests expressed by the ideologies in the first place. Also, ideologies, once out there, can shape the interests of the human beings living in the social order where these ideologies reside. A characteristic linking back to the general capability of ideas shaping their creators.
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Reference
Unger RM (2015) The critical legal studies movement: another time, a greater task. Verso, London
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Loguinova, K. (2019). Concluding Summary of Part I with a Schematic Representative Structure of Chaotic Reality. In: A Critical Legal Study of the Ideology Behind Solvency II. Economic and Financial Law & Policy – Shifting Insights & Values, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-030-26357-7_6
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