Deconstructing Law and Society: A Sociolegal Aesthetics

DOIhttps://doi.org/10.1016/S1059-4337(07)00004-X
Published date05 December 2007
Pages83-120
Date05 December 2007
AuthorJonathan Goldberg-Hiller
DECONSTRUCTING LAW
AND SOCIETY: A
SOCIOLEGAL AESTHETICS
Jonathan Goldberg-Hiller
‘‘Deconstruction, as a form of politics, is ultimately disabling y. The grand theories of
the Left have collapsed. The humane side of the Enlightenment is under attack.
However, I question the value of postmodernism as transformative politics.’’
–Joel Handler (1992a, p. 698)
Joel Handler’s presidential address to the Law and Society Association in
1992 was heard as a challenge to the enterprise of sociolegal studies
delivered by one of its founding and revered intellectuals. In his disquiet
over the emergent philosophies of postmodernism – particularly the method
of deconstruction and the ontology of anti-foundationalism – and the
nihilistic and contingent jurisprudence and political theory that it had
spawned in the Anglo-American academy, Handler drew a line (an old-style,
structuralist, and foundationalist line) against scholarship that would
weaken the critical commitments that founded and continued to inspire
law and society. Handler’s address, its later publication with extended
commentary in the Law and Society Review, and its subsequent life as the
most-cited LSA presidential address have made it a seismic event in the
scholarly politics of the legal academy, another rumbling of the realist fault-
line running between the courtroom and the classroom. As an event renewed
by its periodic echoes and its parallel struggles (e.g., Farber & Sherry, 1997;
Greer, 2001), it also marks one of the last significant expressions of
Special Issue: Law and Society Reconsidered
Studies in Law, Politics, and Society, Volume 41, 83–120
Copyright r2008 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00004-X
83
self-assessment, stock-taking, and state-of-the-discipline accounting in the
last 15 years.
Handler’s challenge and the responses it provoked within the sociolegal
academy expose many contemporary layers of meaning about the enterprise
of sociolegal studies. In this chapter, I use his address and the discourse –
scholarly, mythological, and partisan – that has subsequently swirled
around and invested in it in order to prod and interrogate this delamination.
My goal is to reveal some aspects of the field in the 15 years since Handler’s
speech. As a scholar of social movements and the discourse of rights who
has embraced various theories that were indicted in Handler’s address, I
nonetheless resist a defense of these methods, although I acknowledge at the
outset that I rely upon some of them in order to gain insight into and
definition of the academic spaces that we denote as our common field.
Rather than grudgingly return to an old debate, or bring newly sharpened
tools to the defense of an older threat, my goal is to see this event in a new
light and offer a way of tracing, investigating, and questioning our common
professional activities, values, and anxieties. I seek, in short, to find the
points of rupture that Handler’s speech initiated, and trace the contra-
dictory intellectual efforts to produce knowledge and enforce silence that
such a fissure lets loose.
My technique in this chapter is to look obliquely at the field that Handler
jostled through an aesthetic lens. My reliance on aesthetics is not meant to
ignore alternative concerns about power and law that largely motivate our
shared understandings as well as our collegial disagreements. Instead, I hope
to show that aesthetics – particularly a critical form of aesthetics – can shed
light on the nature of the conflict provoked by Handler’s address, the way
that we remember and memorialize this conflict, and more generally, on the
controversies that have surrounded the sociolegal field since, all while
redirecting our attention to how we may renew our progressive commit-
ments. Despite our own disagreements on whether law and society
constitutes a discipline or whether we remain interdisciplinary in our
approaches to law – questions that often devolve to whether there is a canon
and a paradigm of sorts (Erlanger, 2005;Tomlins, 2000, 2004) – aesthetics
may reveal the ways in which we have long been expressing our
disciplinarity in other ways, such as in our social commitments and our
common aspirations for the social purposes to which our research be put.
Aesthetics, as I will argue below, may also allow us to gain a better
understanding of our own social composition as scholars. It may usefully
reveal our own decomposition as well; despite the broad commitment to the
diversity of ways that law promotes and restrains social justice and social
JONATHAN GOLDBERG-HILLER84
participation, the large meetings of the Law and Society Association seem to
have slowly become less racially and ethnically diverse since Handler’s
address as alternative scholarly venues have emerged.
1
Finally, attention to
the aesthetic may make a significant contribution to an understanding of the
new conservative reaction to law that haunts and limits progressive politics
and scholarship today. I aim, in short, to use aesthetics to think differently
about the question of how sociolegal scholarship has changed and
developed in the last few years, not just in the ways that we think about
law and society, but how we see ourselves as thinkers.
AESTHETICS, DISCIPLINARITY, AND POLITICS
Handler’s genealogy of postmodernism recounted in his address recognizes
its origin in aesthetic disciplines and its somewhat viral transcription
into social jurisprudence: ‘‘the postmodern concept of subversion deve-
loped first in language and literary theory, art, and architecture and then
spread into politics and law’’ (1992a, p. 698). Although Handler’s rejection
of deconstruction stems from what he sees to be its political quiescence,
its association with aesthetic critiques of modernism haunts his claims
as one source of its essential conservatism. Aesthetic values, he implies,
remain distant or distinct from pressing issues of political and social
inequality.
Handler’s indictment of aesthetics accords well with a dominant
complaint about aesthetic knowledge based on an interpretation of Kant’s
Critique of Judgment (1952), while affirming a more Jeffersonian philoso-
phical tradition that emphasizes the essential connection between demo-
cratic equality and the facticity of nature (Shapiro, 2006a; see also Shklar,
1990). As Michael Shapiro (2006b, p. 663) notes, Kant, writing contempor-
aneously with Jefferson, threatened the political assurance of nature with his
aesthetics:
Kant’s critical treatment of aesthetic comprehension in his analytic of the sublime
constitutes an annulment of the mind-nature marriage that Jefferson assumed.
Moreover, the Kantian insight constitutes a pervasive discrediting of the Jeffersonian
version of enlightenment, which prescribes ‘‘highly elaborated modes of attention,
observation, and description, applied to natural objects,’’ and gives too little heed to the
productive imagination in which objects are presented. As Kant puts it, ‘‘true sublimity
must be sought only in the mind of the [subject] judging, not in the natural object.’’
If nature can no longer be seen to press its truth into the mind, a
philosophical presumption inherent in Kant’s concept of the sublime,
Deconstructing Law and Society: A Sociolegal Aesthetics 85

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT