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by: Eric Engle
Part I: Contemporary American legal theory is in a state of conflict which can be accurately characterized as an intellectual crisis
A. Contemporary American legal theory is both chaotic and discordant .
B. Practical roots of the contemporary american crisis of legal theory
C.
Theoretical Roots of the contemporary crisis in american legal thought
Part II. The crisis of sovereignty
A. The decline of the Westphalian system of nation states.
B. Causes of the crisis and transformation of the system of sovereign nation-states
C. The challenges
posed by the crisis of sovereignty for contemporary american legal thought
I:
Contemporary American legal theory is in a state of conflict which can
be accurately characterized as an intellectual crisis
A. Contemporary American legal theory is both chaotic and discordant .
1. This cacophony is represented by two main schools of thought:
The two main schools of contemporary american legal thought are critical legal studies and law and economics. These two schools of thought are however themselves divided into several contending sub-factions. This division is generally according to differences of social classification - race, gender, and income, but sometimes according to methodological lines. Subdivisions of these two schools of thought include, and are not limited to, critical race theory, feminist legal theory, law and literature, and communitarianism (a sort of neo-aristotelianism). Our exposition of these different schools of thought will be directed towards demonstrating the differences between these theories in order that we may understand the stakes of this intellectual discord.
2. This cacophony is evidence of a crisis in consciousness.
Restructuration of paradigms is generally the outcome of political, social, and economic upheaval. American society is certainly turbulent. It is also violent and inegalitarian. Theoretical strife in the american legal consciousness is both an outcome and reflection of violence, for violence forces reconsideration of the ideas which describe social reality or posit norms for social practice
B. Practical roots of the contemporary american crisis of legal theory
The practical roots of the contemporary crisis in american legal thought are found in a history of puritanism, racism, genocide and slavery. More recently, a series of political assassinations, military defeat in Vietnam, social revolution, and a series of political scandals, the echos of deeper social injustice, have created political paralysis. Claims to economic productivity (a low rate of inflation, a high rate of growth in the GDP and a boom in the share exchange) ring hollow in the face of vast inequalities in the provision of education, health care, food, and shelter, and the violent crime which is their result. Worse, these inequalities are mispercieved as being the necessary reward for those who deserve success, and the just punishment for those who (somehow) deserve failure.
C. Theoretical Roots of the contemporary crisis in american legal thought
1. The theoretical roots of the contemporary crisis in american legal thought are ultimately found in Marx and Smith.
If we can (over) simplify our representation of contemporary American legal theory as a struggle between critical legal studies and law and economics, we can more easily discern that the theoretical roots of the contemporary american crisis of legal theory are found ultimately in Marx and Smith.
Smith and Marx are in fact far more similar than is suspected. They use similar analytical tools (materialism, wholism, the labor theory of value, use and exchange value) to describe reality. However the prescriptions of these two philosophers are radically different. This difference in prescriptions turns upon opposing roles assigned by Smith and Marx respectively to self interest and altruism. 2 This author's hypothesis is that the role of self-interest is not 'self evident' (axiomatic)3 and that both egoism and altruism motivate human action. Statements regarding human nature are in fact indemonstrable because of difficulties in observation and quantification. Subjective intentions of humans cannot be objectively determined. Unlike the objects of natural science, the human subject has the capacity to act, react, and interact.
If this analysis is correct, we are at an impasse: if the focal point of the difference between Marx and Smith is ultimately the role of egoism and altruism, and if this point is in fact incapable of demonstration, then how is conflict to be managed, let alone resolved? Since the differences between L&E and CLS ultimately turn on the this point, then we must somehow adress it.
We shall see that the different role assigned to altruism and egoism is only the most obvious difference between Marx and Smith. A deeper analysis reveals that - and this despite similar analytical tools - certain enthymatic presumptions implicit in Smith's thought, which are explicit in Aristotle, might also help to explain the different prescriptions of Smith and Marx.
2. The theoretical sources of the contemporary crisis in american legal thought can also be more clearly discerned through an exposition of a difference of position between Marx and Aristotle on two questions. The different responses of Marx and Aristotle to these questions also help explain the differences between Smith and Marx
a. The first question is the role of learning and instinct (human nature) in determining human action
The differences between Marx and Smith can be better explained by resort to an earlier distinction in Aristotle between 'nature' (physis) and 'art' (tekhne). As nature is defined as those things which are invariable, it is the subject of science. However those things which are variable are the subject of art (tekhne). Aristotle allows however for practical reasoning (phronesis) to permit through a dialectical development opinions which approximate science.
Part of the explanation of the different prescriptions of Smith and Marx is found in their different positions on 'human nature'. Marx quite explicitly asserts that human behavior is learned. Smith, in contrast, implicitly ascribes human action to innate charateristics - a position this author describes as naturalistic. For the naturalist, there is an unchanging human nature. This is Aristotle's position - that certain aspects of human nature are innate and unchanging. This raises a second issue where an understanding of Aristotle helps clarify Marx - and thus can help us better understand the current crisis in American legal theory.
If an unchanging human nature (instinct) exists, then one characteristic of that nature would be the instinct of self preservation. Given the necessary priority of self preservation for survival of the individual and the species, other instincts would be founded upon that instinct. Thus the role of egoism and altruism, would be itself a function of human nature - the instinct of self preservation. Thus a 'naturalistic' approach would argue that Smith is correct in assigning self interest as the primary motivation of action, for self interest is an expression of an unchanging human characteristic, the desire for self preservation.
Smith thus appears to have won, as we shall see, rather too easily. Equating the survival instinct and egoism is in fact not the ready solution that it would at first appear to be. The human animal, a political creature, is a social being. For this reason, the survival of any member of the group is dependant upon the approval of the group. Further, the survival of the group is equally dependant upon the cooperation of its members. Thus two apparently conflicting forces, altruism and egoism, may both be functions of the instinct of self preservation.
b. Is there a finality of History?
Aristotle adopts what we describe as a naturalist position: certain aspects of human nature are innate and unchanging. Thus, for Aristotle, there can be no completion of history: conflict or at least the risk of conflict is an inescapable part of human nature.
In response to what we call the naturalistic position, Marx offers what later became known as the behaviorialist position: that all human behavior is learned, that is that the human consciousness at birth is tabula rasa. Thus the liberation that Marx offers, if his presupposition is correct, appears total: freed from superstitious conditioning, man becomes capable of self-programming. Thus, with proper education (or if you prefer, conditioning) the sources of conflict can be eradicated, and the process of historical development can complete itself in the establishment of a sort of earthly (e)utopia.4
This explanation - that the differences between Smith and Marx5 are ultimately founded upon different assumptions about human nature, and historical progression - helps us to understand why Marx and Smith, using similar analytical tools (materialism, wholism, the labor theory of value, use value and exchange value) to describe reality, offer such different prescriptions. Their difference also arises out of Smith's implicit naturalism. Smith does not consider the possibility of historical development, however he would not need to if he were - and in my opinion he is- a naturalist.
Between the naturalist and behavioralist positions there appears to be little room for synthesis or compromise. The ideas of historical progression, whether idealistic (Hegel) or materialistic (Marx) are antithetical to the idea of a fixed human nature, for that which is fixed by nature cannot change, and progression is a term used to describe change. Thus the differences between Marx and Smith may well be irreconcilable. However if we understand where and why Marx differs with Smith and Aristotle we can at least better understand the current intellectual discourse in America, if not offer certain ideas which would help resolve it.
Our conclusion is that synthesis of the contending theories is a necessary precondition to any peaceable resolution of the social, intellectual and political crises facing the american body politic. For the theoretical reasons outlined above, such a synthesis may well be impossible. One of the purposes of the thesis will in fact be to determine whether and to what extent a synthesis of the variety of competing schools of thought in contemporary American legal thought is possible.
As we shall see, a fundamental paradigm shift is necessary not only for resolution of domestic conflict, but also to adress the crisis of soveriegnty facing the international community. Because CLS questions adversarial models of competition, it can help us more easily discard zero sum models of competition and transform them into positive sum models of cooperation. Where such transformation is impossible, zero sum games must be clearly elucidated as such and then concluded as quickly and peaceably as possible.
Part II. The crisis of sovereignty
A. The decline of the Westphalian system of nation states.
The general crisis in contemporary american legal thought coincides with another global intellectual crisis: the decline of an international system defined around nation-states and the challenge to the concept of soveriegnty implicit in that decline. Briefly put, a technological revolution has rendered the traditional conception of soveriegnty irrelevant. In conjunction with certain historical events, particularly two world wars, the foundation of the national state system is undergoing a transformation into a global system consisting of national, subnational, and transnational actors.
B. Causes of the crisis and transformation of the system of sovereign nation-states
1. Historical Causes
Historical causes of the transformation and crisis in the international system of nation states can be traced in part to historical events. As evidenced by a series of global wars, the Westphalian system has failed in its purpose of preventing war. However the practical failure of the westphalian system is only one cause of the current transformation of the international system and its legal expression, the concept of sovereignty.
2. Technological Causes
The crisis of sovereignty is only partially historically contingent. It is true that the Westphalian system of nation-states has in the end proven unable to prevent global warfare. It is equally clear that, at least in theory, interdependance is a policy of mutual prosperity and security. However the transformation of the sovereign power is also a result of a technological revolution which permits global movement of goods, capital, and persons, as well as the instantaneous communication of information.
This transformation, the inevitable consequence of technological changes, is also necessary: sovereignty is a medieval concept which has outlived its usefulnes, for it neither corresponds to reality nor satisfies human needs. The sovereign power, as currently conceived, is at once too extensive (being the ultimate and absolute power over the life, death, and fortunes of the subject) and not extensive enough (being a power limited to the territory of the state and, by extension, its subjects). The juridical conception is defective for it is in no way pertinent to an industrial economy, let alone an economy founded upon instant global communication. A juridical redefinition of the sovereign power must be both founded upon real human needs and cognizant of certain realities which are the consequence of instant global communication.
3. Different levels of transformation
Challenges to soveriegnty are being raised at all levels of governance. Transnational organisations and multinational corporations 'push' for the transformation of sovereignty at the gloabal level. And local governments and ethnic enclaves 'pull' for sovereign power at the subnational level. The myth of the nation state in an era of instant global communication is being exposed for the fiction that it is with a consequence for a disintegration of the nation state and its replacement by international organisations comprised of a variety of subnational and national actors. This empirical reality - in former Czechoslovakia, former Yugoslavia, and the former USSR is by no means limited to former members of COMECON. Devolution in Scotland, the Mohawk nation in Quebec, Quebec in Canada, the Walloons in the Netherlands and Belgium are only some of the more prominent examples of national dissolution . Meanwhile NAFTA, the EU, MerCoSur, and ASEAN promise to step in to maintain a neo-liberal economic order. However whether this transformation maintains neo-liberalism - or at least the ideal or illusion of neo-liberalism - is less important than a recognition of the economic forces which drive such free trade areas - a desire for inexpensive labor and a guaranteed supply of raw materials.6
C. The challenges posed by the crisis of sovereignty for contemporary american legal thought
The co-incidence of the transformation of the Westphalian nation-state system and the crisis in contemporary American legal thought may have one common source, namely a technological revolution. Because these transformations are in fact interrelated, an effective resolution of the domestic american intellectual crisis must also adress the transformation of the now defunct nation state system. Such a resolution, while necessary, is unlikely for geographic and cultural reasons.
1. Geographical reasons that the US legal community will not adress the crisis of sovereignty:
the United States is relatively isolated, and while multi-cultural is essentially mono-lingual. This isolation indicates that the transformation of the international system is unlikely to be adequately adressed by american intellectuals, and thus will continue to be ignored by american politicians.
2. Cultural reasons that the US legal community will not adress the crisis of sovereignty:
America is intellectually impoverished and literally malnourished. Ignorance of geography, history, and foreign languages, while permitting an easy manipulation of the populace, increase isolation and prevent a cogent articulation of international issues.
Because of these geographic and cultural realities, it is unlikely that American legal theorists, already preoccupied by what are percieved as more pressing issues of social justice and 'civil' violence (whether crime or spousal abuse) will be unlikely to even adress the questions of the transformation of the international system. Even if the problems are correctly adressed, transforming coherent arguments into practice is also unlikely for political leaders, aside from the risk of demagoguery and prejudice, will be forced to simplify, and thus distort any ideas to fit the stunted intelligence and short attention span of a people conditioned to instant gratification. 7
3. Implications of geographic and cultural isolation
a. Incapacity to create solutions to the crisis of soveriegnty
Cultural and geographical realities indicate that it is unlikely that American political or intellectual leaders will elaborate solutions to the crisis of soveriegnty.8 Inability to resolve, or even adress, the international transformation characterizing the emerging post-Westphalian order is problematic for American legal theory, and fatal for American foreign policy.9
b. Incapacity to resolve domestic theoreticl strife
This incapacity implies that the political paralysis and theoretical chaos which characterize contemporary american juridical discourse will also remain unresolved - for in an interdependant world, the 'domestic' and 'foreign' problems are in fact intertwined. If the United States cannot resolve the external dimension of its intellectual crisis - where it could, in theory, simply impose its will (were it articulated) by force, it will be even less likely to be able to resolve its internal problems where the conflicts are more intense, and where the stakes are seen as greater.10
c. Continued international instability
Because of these realities, a smooth transformation of the international
system from the westphalian nation state to an interdependant system of
subnational, transnational, and state actors is unlikely. Such transformation
will occur, but in fits and starts, with mixed successes and failures,
punctuated by brutal ethnic wars.
CONCLUSION:
One of the objectives of the thesis will be an attempt to propose alternatives to the classical conception of sovereignty and to determine the implications for the international system of the crisis in american legal thought, and of the transformation of the international system into a post-westphalian model. It is this author's belief that fundamental theoretical reconsideration of social contract liberalism is possible, and that such reconceptualisation can help to resolve historically rooted crises unique to America; this author also advances the position that transformation to a post-Westphalian model of sovereignty is both necessary and desireable.
Just as we cannot expect Kelsen to inspire either a new model of soveriegnty or a resolution of the strife which characterizes contemporary American legal theory, we cannot expect American theorists to offer solutions to these problems. For even if the problems are adressed, even if cogent solutions are proposed, politicians are unlikely to be both willing and able to translate them into practice. Transformation of the international system, for better or worse, will not arise out of 'a new Yalta' but rather out of daily practice. Only fundamental theoretical reconceptualisation offers the hope of transcending tribalism and isolationism - which is a necessary precondition to preventing further national and subnational ethnic wars
2 Smith's demonstration of self interest is founded upon observation of market activity. Production occurs, according to Smith, to earn profit. That is, altruism plays little or no role in market decisions. For Smith economic actors who seek to fulfill the needs of others do so in order to satisfy their own needs.
3 Human action in practice appears to be a mixture of altruism and egoism.
4 Later however advertising and mass consumer culture show that the capacity of man to program his consciousness can serve any end, base or noble.
5 At this point we might consider that the superman proposed by Nietzsche would, by definition, transcend the 'natural' limitations upon humanity. Thus by implication, Nietzsche is - a behavioralist, for he believes human nature can be transcended.
6 That is, such policies, while offering the promise of interdependance and thus security, also serve the economic interests of the ruling elites in both industrialised and industrialising states.
In short, these policies are in fact the neo-colonialist, but can be justified as serving the interests of peace - at least in as much as the four major blocs - Mercosur, EU, NAFTA and ASEAN do not retreat into isolationism and arms races - which is unfortunately possible, since global trade in goods is less economically feasible than global movement of persons (which in turn is less economically feasible than global communication of information).
7 Obviously, one program of CLS is mass education which is both cost-free and rigorous in order to correct the intellectual bankruptcy of the current system - which has feed two generations on a steady diet of sugar water,meat, and television.
8 Rather than intellectual leadership we can expect a discourse of demagogues, characterized by animosity, extremism, and which can be summarized frankly as infantile - yet how else could popular leaders adress a badly nourished and ill-educated audience, ignorant of geography, foreign languages, and history that suffers from fictive diseases such as 'attention deficit disorder?' (the result one supposes, of over exposure to television and the violent world it portrays) while real health problems such as obesity are not only ignored, but in fact transformed into profit opportunities for purveyors of 'medicine', 'psychology' and 'self help'? Prejudice of all forms - racial, linguistic, religious, or sexual - has always been the favored tool of demagogues to manipulate masses, allowing complex issues to be resolved into discrete elements of self and other, the latter to be exterminated in order to assure the survival of the former. Demagoguery is certainly not unique to America. However given other unfavorable cultural and historical facts, American international leadership, necessary for the peaceful transformation toward a post-westphalian international system, is unlikely.
9 It matters little whether internal politics compel the United States to retreat into left wing protectionism and isolationism or into right wing isolation and protectionism, the result is the same: theoretical chaos, political paralysis, and a failure to adress or resolve real issues - equitable wealth distribution, and the transformation of the system of national states into some sort of global governance.
10 The United States will not, despite vast natural resources (which it habitually wastes), a relatively young (yet obese) population, a love of technology and 'a favorable business climate', be able to transform these resources into the means to implement coherent long term policies without radical reconsideration of the philosophical sources and historical facts which have malformed its institutions.