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Post-Structuralism and Law

  • Michael Ryan
Part of the Language, Discourse, Society book series (LDS)

Abstract

Liberal law polices the social universe as much by policing meaning as by making certain that those who do not benefit greatly from liberal capitalism do not get out of hand. Liberal law polices meaning by making certain that concepts like equality and fairness are limited to understandings that do not disturb the basic structure of liberal society, a structure characterized by a high degree of material inequality and practical unfairness. Hence, equality, for example, shall mean equal treatment by government rather than a redistribution of wealth or a levelling of power. Those other meanings or references exist in potential form in the liberal conceptual scheme, but they are held in place by a version of the same distinction that holds workers and managers, non-owners and owners apart in capitalism. The right meaning is thought to be the one most detached from materiality, from the world of empirical contingency and difference. It is ideal and formal, and as a result, it is more general and universal. It can be applied equally to all, like equality itself. Another way of putting this is to say that the right meaning is one that transcends situation as well as representation. It is not bound to any specific context or material site, and it rises above the material vehicles of thought, as formal principles are always said to exist outside language particularly.

Keywords

Coherence Assure Expense Posit Straw 
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Notes

  1. 2.
    See R. Posner, The Economic Analysis of Law (Boston: Little, Brown, 1977).Google Scholar
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    See M. Kelman, ‘Trashing’, Stanford Law Review (1984), Vol. 36 (1984) pp. 293–348.CrossRefGoogle Scholar
  3. 4.
    See Posner, Economic Analysis, pp. 34–9. The other classic examples are also rural in character. The famous Coase Theorem, for example, is based on an interaction between a cattle rancher and a corn farmer. See R. Coase, ‘The Problem of Social Cost’, Journal of Law and Economics, Vol. 3 (1960) pp. 1–44.CrossRefGoogle Scholar
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    R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).Google Scholar
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  6. 7.
    R. Dworkin, Laws Empire (Cambridge: Harvard University Press, 1986).Google Scholar
  7. 8.
    See The Politics of Law (ed.), D. Kairys (New York: Pantheon, 1982); the special issue of the Stanford Law Review devoted to Critical Legal Studies;Google Scholar
  8. R. Unger, ‘The Critical Legal Studies Movement’, Harvard Law Review, Vol. 96, no. 3 (1983) pp. 562–680 (reprinted as a monograph by Harvard University Press and in Essays on Critical Legal Studies (Cambridge: Harvard Law Review Association, 1986);CrossRefGoogle Scholar
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  15. See also J. Malkan, ‘“Against Theory”, Pragmatism and Deconstruction’, Telos (Autumn 1987) pp. 129–54, who mistakenly identifies the work of Stanley Fish with deconstruction. In recent years, Fish has incorporated some deconstructive insights, and he sometimes cites Derrida as one of his ‘forefathers’. Fish began as a sceptic, writing on Milton using the philosophy of David Hume, which claims that the mind makes sense out of empirical data, but that the data themselves have no inherent meaning or essence. Using this model, Fish argued that readers create the meaning of a literary text in their own minds. Later, he would argue that they do this together in interpretive communities. With this move, Fish recapitulates the intellectual history of the sceptical critique of natural law as it evolved from the strategy of cognitive doubt (Hume) to the programme of legal positivism (the idea that no legal entities exist apart from acts of legal positing or legislation-another way of saying an interpretive community). Fish never interrogates the actual powers of so-called communities, and the goal of the critique, like that of the sceptical attack on natural law in the eighteenth century, seems to be to disable any attempt to change those powers.Google Scholar
  16. See ‘Consequences’, in W. T. J. Mitchell, Against Theory (Chicago: University of Chicago Press, 1985); ‘Working on the Chain Gang’, Texas Law Review 60 (1982) p. 551; ‘Fish vs. Fiss’, Stanford Law Review 36 (1984) p. 1325.Google Scholar
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    R. M. Unger, Politics (Cambridge: Cambridge University Press, 1987).Google Scholar

Copyright information

© Michael Ryan 1989

Authors and Affiliations

  • Michael Ryan
    • 1
  1. 1.Northeastern UniversityUSA

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