Indeterminacy and Mystification
Last night, we discussed Lawrence B. Solum’s “ON THE INDETERMINACY CRISIS: CRITIQUING CRITICAL DOGMA.” In an extremely short overview, Solum basically uses the article to challenge the range of indeterminacy by polarizing it and refines the language in a way that (although perhaps contextually helpful) did not reach to a lot of the underlying issues. My post here is not so much about the article itself, but rather about one aspect that Stressbunny and I discussed: indeterminacy and mystification.
Solum describes mystification as “the view that legal rules mystify structures of domination.” Basically, he argues that critical scholarship describes law and legal institutions as using the guise of neutrality and tradition to support the current hierarchy of power in our political and economic regime; that we keep the “laymen” ignorant of the law in order to maintain the power structure. He goes on to adopt John Thompson’s three characteristic ways that mystification occurs in ideological discourse: legitimation (“the process by which systems of domination seek to cultivate belief in their legitimacy by appealing to rational, traditional, or charismatic grounds”), dissimulation (“relations of domination that serve the interest of a particular group at the expense of others are concealed”), and reification (“the representation of something abstract as a material thing...Reification reinforces the status quo by making political choices appear to be dictated by nature itself”). With this structure of mystification in mind, Solum attempts—and fails—to argue for the separation between mystification and indeterminacy.
Solum postulates that the combination of mystification and indeterminacy will lead authority figures to tyranny (they will no longer view legality as a constraint on their domination). This is the structure he uses to argue that the combination of mystification and indeterminacy delegitimizes the legal process because it will not lead to “liberation from the illusory bonds of legal doctrine” but rather, that it will (again by polarizing indeterminacy to an absurd point) completely freeze any notion of legal discourse. In a nutshell, indeterminacy actually harms mystification in that—basically—it turns mystification off to anyone that is put off by indeterminacy in general.
“[T]he mystification thesis without the indeterminacy thesis could be quite powerful as a tool of delegitimation. If false assumptions that contingent social phenomena are natural did determine results in particular cases, that fact would provide a strong motivation for change of legal practice. If more progressive doctrine can produce more humane decisions, then there is a good reason to change the law.”
And then the conclusion begins. I was pretty frustrated by this fallacious argument. Indeterminacy does not weaken the mystification argument, but rather provides an accurate explanation for (example) why criminal courts are deciding cases, not according to any notion of legal reasoning whatsoever, but a complete fabrication of legal rules to justify their predeterminations of race and gender. Why a man in
What I was even more frustrated with, however, (and this is where Stressbunny (SB) and my conversation kicks in) is that he did not look at any of the alternatives to this. It’s either indeterminacy or no. In fact, SB and I agreed that his article could have been far more powerful in this subsection had he explored the idea of subsuming indeterminacy into a stronger mystification argument. We agreed that Critical Race Theory often did this in their attempts to demystify the racial hierarchy inherent in our system and it would have been a strong place to look at reconstructionist ideologies rather than completely dismissing (again by absurdly polarizing crit scholarship) any notion of a constructive new vision within critical legal theory. It’s ridiculous to postulate that you must have a level of determinacy for a constructive vision. Just because a new vision has the potential to be attacked using deconstructionist arguments is not a justification for the notion that there is no methodology out there: this is cowardly.
I am interested in the notion that indeterminacy should be subsumed into mystification rather than separated, and I open the floor to any comments or thoughts on this matter.
posted by The Marpepps! at 8:59 AM
2 Comments:
Very good, Lyco. One comment that I have with respect to the reconstructive project is that true Crits (e.g., Abu-Odeh and probably Duncan Kennedy) are skeptical that any post-Realist reconstruction is possible. This extreme position, which I frankly find quite seductive, is an intellectual heir to Foucault and Derrida. Both the philosophical and legal projects exist to bring about a more just world by exposing, and ultimately defeating, the frozen and mystified power structures that silently reproduce the hierarchies of the status quo.
It is easy for Solum to chastise the Crits for failing to present a workable alternative to the structures that they throw out; but what exactly is his reconstructive project? His charge, that "[w]e must imagine a progressive and humane social order, and we must imagine a way to get there from here," doesn't say a whole lot. And, in fact, I would argue that the Crits are already doing just that: they feel a certain end result is just, and each works toward her peculiar version of justice. Simply because a Crit disclaims the ability to prove the rightness of her project doesn't mean that she is not imagining and working toward a progressive and humane social order.
Just as you and I discussed earlier in a different forum and a slightly different context, there are likely no answers to the questions of how and why we make the decisions we do, but continuing to study and work out a vocabulary, identifying and marking blind alleys and interesting future directions along the way, is the best we can hope to achieve. Beyond that is just our motivation, bootstrapped up from who-knows-where, to do good in the best way we know how.
Solum postulates that the combination of mystification and indeterminacy will lead authority figures to tyranny (they will no longer view legality as a constraint on their domination).
That's incorrect. Rather what Solum does is suggest--quite reasonably--that the combination might lead to tyranny. He's saying that it's possible that the existing structures are not constraining the people, but rather constraining the power of those who would oppress them. But as to the verity of either position, the closest we get to his opinion is the humble observation:
It is possible that all that stands between us and a progressive system of justice is the elimination of the myth that legal rules constrain judges, but the violent lessons of human history place a heavy burden of persuasion on those who make that claim. Singer's view [that such is the case] is profoundly optimistic.
That's not a postulate either way, but rather an allowance for the truth of both propositions, with a finger on the scale from experience. As someone who thinks the Constitution was (I've used the past tense) primarily a bulwark protecting people from the sovereigns who would exploit them, I agree.
The actual crit belief that there is a better world out there and we can get to it by demystifying the law, or unfreezing it, is subject to criticism for the same reason. The heavy burden of persuasion that Solum calls out for is that those who would "unfreeze" the structure prove that it will be more just in its thawed state. Perhaps that is the reconstructive project begged for. Lacking it, I'll take formalism.
And those would deny, as Singer does in his quote, that the thaw will be unjust, are as profoundly optimistic as the Bolsheviks, and given the past century, about as persuasive.
Post a Comment
<< Home