Revisiting social dimensions of law and justice in a posthuman era.

• Author: Baxi, Upendra

Abstract

This article largely constitutes the keynote address delivered by Professor Baxi at the Julius Stone Institute of Jurisprudence in the Faculty of Law at the University of Sydney at an international conference marking the centenary of the birth of Julius Stone on the 5-7 July 2007. Dwelling on several related themes the piece explores Stones's idea of a 'fellowship of juristic learning' and the relation of this to what Stone names as socio-ethical conviction in his book entitled Social Dimensions. The article speaks to narrative virtues and pitfalls in the grand tradition of doing social theory of and about the law. Further it addresses the question of continuing relevance even in the first decade of the 21st century CE of Stone's Social Dimensions, especially in the context of the two 'terror' wars. Lastly, the article goes beyond the above to imagine ways in which Julius Stone may have addressed the emergent discourse of the posthuman.

Keywords

Julius Stone; Stonian jurisprudence; Terror Wars; Posthuman

1. Introduction: Prefatory Remarks

   At the outset, please allow me to indulge in a profoundly nonritualistic word of appreciation to the Julius Stone Institute, and in particular to Professor Helen Irving, for this very great honour done to me by the invitation to deliver a keynote address at Julius Stone birth centenary conference. I have never been a witness to a birth centenary event before; nor had the privilege to keynote it! But Helen no doubt aided and abetted by Anthony Blackshield obviously counted on me not to strike any false notes! Helen was perhaps a bit overcome by the promptness of my response in accepting the invitation; I may explain this by a word of deep affection and esteem for Professor Stone. I acted the way I did because I read the invitation as an imperious summons by Jules himself! 'Imperious' remains perhaps the best metaphor to summon his presence amongst us today; the imperium constituting the name Julius Stone was no mere act of the dominium.

   That name invokes many varied and contradictory registers of memory. One strand of that memory must be now firmly laid aside in this birth centenary year. That concerns characterization of Professor Stone as a Pharaoh-like figuration building some pyramids of jurisprudential knowledges on the slave-like scholarly labours of others. I have always considered this as a wholly unworthy set of uncharitable observation based on no more than the politics of scholarly envy. No careful reader of the detailed and fully affectionate acknowledgements in Stone's monumental trilogy may escape the warmth and generosity with which every act of assistance stands acknowledged and no historian of development of Australasian scholarship may afford to ignore how supportive he remained overall towards the life-projects of young scholars.

   On the other hand, we ought to celebrate the fact that Professor Stone provided secure habitats for many an emigre scholar in Australasia. These were already accomplished scholars themselves in the countries of their origin: I have particularly in mind here Ilmar Tammelo (Estonia), Charles Alexandrowicz (Krakow and Madras), Peter Drost (the Netherlands), Otto Bondy (Vienna), among others. Stone's contribution to the Australasian teaching and research traditions as a patron saint of diasporic jurisprudential scholarship is well worth recalling and not only in terms of sustained renovation of teaching and research in Australasia but also in terms of the tradition he inestimably names as 'fellowship of juristic knowledges' or learning. It is this fellowship that substantially transformed the landscapes of sociological jurisprudence for the rest of jurisprudential worlds. As one born to world of law teaching at the Sydney Law School, may I continue to hope that this legacy of Julius Stone, fully lives on; or if not, the Institute's events serve as a catalytic reminder of the need for its full revival.

   While Professor Stone remained inveterately peripatetic, he also constituted Sydney Law School, and its Department of Jurisprudence and International Law, as a centre for excellence for legal and jurisprudential scholarship; to here I rather irreverently borrow the Onida-TV hype: Julius Stone was the ' owner's pride,' and 'neighbour's envy.' By owner's pride, I signify the sustained esteem in which many of his global colleagues and students then and since hold him. By 'neighbour' I mean Stone's immediate neighbours in the Faculty of Law and also in a larger sense (as per Lord Atkin's opinion in Donoghue v. Stevenson--a text Stone so munificently loved) and the envy of the rest of the holy lands of jurisprudential thought through the world!

   I intend to tax rather fully your patience this afternoon by dwelling on several hopefully related themes. The first relates to the idea of 'fellowship of juristic learning' (derived from Stone's Human Law and Human Justice) and the relation of this to what Stone names as socio-ethical conviction in Chapter 13 of Social Dimensions (hereafter SD.) Second, and related, I speak to narrative virtues and pitfalls in the grand tradition of doing social theory of and about the law. Third, I address the question of continuing relevance even in the first decade of the 21st century CE of SD, especially in the context of the two 'terror' wars and fourth going beyond this to imagine ways in which Julius Stone may have addressed the emergent discourse of the posthuman. This is a long wish-list which may here be only partially fulfilled; I promise a larger monographic text to the Institute in the Stone Birth Centenary year.

   1.1 The Fellowship of Juristic Learning

   I wish to start with the thought that these three terms in Stone must be read not in any ordinary meaning of the words but rather as a complex and contradictory methodological terrain. 'Juristic' for Stone had a very large meaning ever since The Province and Function of Law described jurisprudence as the 'lawyer's extraversion. 'In suggesting that the law may not be understood on its own terms, outside other social and human sciences, placed Stone in some very distinguished company. Yet, for his own times and even I believe ours, Professor Stone accomplished an enduring transformation of the notion of being and remaining a jurist. A jurist is now habitually understood as one who seeks to usher in the jurisprudence of (what Professor H.L.A. Hart named as) 'fresh start(s') or as today most of us would name, perhaps, too readily as an 'epistemological break.' What distinguished Stone from most of his peers was his insistence that we read the history of law and jurisprudence as a narrative of both continuity and change and that claims towards inaugural fresh starts or changes in the episteme, or the stakes for theoretical originality may only be understood within the intertextuality presented by diversely situated inaugural thinkers. Originary thinking occurs best interstitially by Talmudic types exegesis of the prior texts and corpus of jurisprudence.

   Stone's work shows not merely how usefully such practices of reading law and theory may relate to the craft of lawyering (and in this I include teaching and research) but also underscores the importance of understanding that 'some of the most outstanding contemporary studies ... cannot be associated with particular social sciences, nor even with philosophy, but seem to address themselves simultaneously to all of these' (SD at 10.) We are to further note here that Stone is reiterating his own positions of 1946

   Province, it may not be inappropriate to think that Stone anticipates, via the discourse concerning the 'revolt against formalism,' some of the narratives of postmodern jurisprudence typically associated with the three Masters of Suspicion--Freud, Marx, and Nietzsche.

   1.2 Learning

   Turning to the second notion-learning--Stone's corpus suggests fully that the tasks of social learning entail on the side of theory the performances of epistemic consolidation, falling always short of epistemic aggrandisement. This is a difficult distinction; yet if one were to mean by epistemic consolidation a non-negotiable practice of the virtue of fidelity to past thinkers or the body of history of ideas, or the art of intergenerational transmission of knowledges, the vice of aggrandisement disappears. While the readers of the Province never complained of any epistemic aggrandisement; the successor trilogy, however, has been said by many to display this vice in the main constituted by massive and at times laboured footnotes. The Stone footnotes do not, in my view, and contrary to some of his contemporary in-house critics, did not provide a situation of wearing knowledge on one's sleeve; and far from constituting sepulchres of past knowledges, furnished in today'? s phrase 'live links' with the past (as well as contemporary) thinkers.

   Yet it was a favourite gesture of many associates and friends of Julius Stone to request him repeatedly to write a book with minimal footnotes and he acceded to this request in at least two of his later books. But as one who also issued this sort of request for significance, I know that he felt able to do so only when he was nearing the end of his long literary career and could safely say that he had not violated any canon of epistemic fidelity. All this may seem strange in a postmodern world where the massacre of ancestors is already deemed to be a virtue in itself!

   1.3 Justice

   More important, juristic learning and fellowship for Stone stands directed to the achievement of a modicum of justice. In Human Law and Human Justice this notion features via the struggle to achieve and to hold, against all odds, the 'enclaves of justice.' In Social Dimensions the explicit move is towards the fact that '... such ideals [of justice] are held' and the 'effects on legal order on such ideals as held' (Stone, J, 1966, p 8, emphasis deleted (1).) Learning is a 'way of recalling the meaning...