Post-Truth: For or Against Socio-Legal Studies?

– Professor Peter Fitzpatrick*
Feb 24, 2017 | 10:56 A.M.

‘Every title has the import of a promise,’ writes Derrida.[1] The promise here is to test the effect of post-truth politics on socio-legal studies and to determine whether the socio-legal would be supportive of or opposed to such a politics. As a bonus, this may tell us what the socio-legal is.

‘Post-truth,’ the Oxford English Dictionary has decreed, is the ‘word of the year’ for 2016 and defined it as an adjective ‘relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.’[2] In giving reasons for the choice, the website for Oxford Dictionaries noted that the word ‘has been in existence for the past decade’ but they have ‘seen a spike in frequency this year in the context of the EU referendum in the United Kingdom and the presidential election in the United States. It has also become associated with a particular noun, in the phrase ‘post-truth politics,’ and as such has come to be ‘a mainstay in political commentary.’[3]

The ‘spike’ in use could come from an expansion of the strategic range of post-truth politics. Politics generally can hardly be characterized by invariant truthfulness, and obviously previous political departures from the truth have at times been hugely significant. Furthermore, these departures can be complete. They can negate truth as an ultimate point of reference. A notorious example was provided by an official in the government of George W. Bush in announcing that ‘[w]e’re an empire now, and when we act, we create our own reality.’[4] The intent, nonetheless, was to create a ‘reality’ that had coherence and some constancy.

The contrast provided by current post-truth politics sees the creation of an unreality rather than a reality, one riddled with falsity, inconsistency, and confusion. This is not a result of incompetence or folly but, rather, a deliberate political strategy. In his ‘Trump’s lies have a purpose. They are an assault on democracy,’ Ned Resnikoff instances the explicate adoption of such a ruse by Trump’s strategist, Steve Bannon and, in parallel terms, by Vladisov Surkov, ‘a top advisor’ to Putin.[5] The aim is not to secure a believable reality but to disrupt and confuse perceptions of reality and to break down consensus and trust between people. The result, or at least the expectation, is a heightened dependence of individuals on dominant political power – a dependence that would extend to those knowingly empathetic to such a stratagem.

We may wonder, however, just how new or exceptional such a regime may be. There are of course parallels with modern totalitarian systems but, short of that, what could be called the structure of post-truth politics is not dissimilar to the ‘liberal democracy’ which is supposed to be so antithetical to it. It is some time now since Foucault tied liberal democracy to a combination of ‘singularization of individuals’ and a disciplinary power linked to ‘governmentality’ – a pervasive, tentacular governing of whole populations, a government supported in state sovereignty.[6] Brian Massumi’s new book Ontopower orients Foucault’s depiction more towards post-truth politics.[7] Liberal governmentality, Massumi notes, still involved some significant reliance on general norms and standards, but in contrast neoliberal governmentality operates on varied and unstable subjective interests.[8] Such a governmentality inhabits this ‘ontopower’ which itself is a power that, for Massumi, assumed some distinctive existence with the regime of George W. Bush.[9] It involves an assertion of a completeness of power, one reliant on indefinite or fictive threats from, to borrow the Bush lexicon, rogue states or tyrants with evil designs, or outlaw regimes.[10]

The quest for some abiding structure can, however, be taken much further back – back to the template generated in various occidental ‘revolutions’ in the seventeenth and eighteenth centuries, and thence imperially bestowed on others in the twentieth. One of the most elevated instances comes with the ur-text of constitutional pronouncements during the French revolution. The Declaration of the Rights of Man and the Citizen of 1789 announced that ‘[t]he Principle of all Sovereignty resides essentially in the Nation. No  body nor individual may exercise any authority which does not proceed directly from nation.’[11] The Constitution of 1791, although short-lived, reaffirmed the political irrelevance of what Montesquieu would call ‘intermediate ranks,’ and did so in a way that rendered the political relation as one between the now ‘indivisible’ sovereign and the citizen.[12] This is a citizenry politically reduced by the very rights that were to empower it, rights that the Declaration announced as ‘natural’ and ‘sacred’ and rights that the Constitution rendered ‘natural’ and ‘fundamental.’[13] Marx encapsulated such an outcome as ‘[t]he constitution of the political state and the dissolution of civil society into independent individuals– who are related by law. The individual thence emerging ‘as unpolitical man as natural man…,’ as ‘passive[e]goistic man.’[14]

This culmination of an occidental modernism could be subversively set against the plurality advanced by decolonial thought. Decolonial thought espouses what Mignolo refers to as a ‘delinking,’[15] a setting apart from the universalizing pretension of an Occident that would encompass and represent the other, not only to determine the conditions of relation to the other but also to determine the other’s very being; and in the process to contain it within certain delimiting categories. The delinking from this is not complete, and it could hardly be so. What is involved is said to be, rather, a relation of plurality. Consistent with this plural relation, for Mignolo the ‘Eurocentred narrative’ of an occidental modernity ‘of course has its right to exist since it corresponds with the experience of Euro-American histories, but it does not have the right to be the narrative for the rest of the world… .’[16] Yet, if an occidental modernity so constituted had now and instead to exist in a responsive relation of plurality, what would be left of its ‘Eurocentred narrative’? Aptly enough: nothing. In the result, the pluralism of decolonial thinking would take us to a revolutionary scenario.

The import of that scenario is seminally sketched by Quijano in his finding that:

First of all, epistemological decolonization, as decoloniality, is needed to clear the way for new intercultural communication, for an interchange of experiences and meanings, as the basis of another rationality which may legitimately pretend to some universality. Nothing is less rational…than the pretension that the specific cosmic vision of a particular ethnie should be taken as universal rationality, even if such an ethnie is called Western Europe because this is actually [to] pretend to impose a provincialism as universalism.[17]

‘Some universality’ may seem oxymoronic but it can ‘legitimately pretend’ to that since entities can only relate plurally if there is some determinable commonality between them – a commonality that must have its own force and effect yet must also be ever-responsive, ‘universally’ responsive, to an ever-changing plurality, and this is not just for the viability of the plurality but also for its own. To thus ‘provincialize Europe,’ adapting Chakraborty’s stunning title,[18] is to reverse a ‘top-down’ formative force of relation and sociality appropriated by and in the Occident. Commonality forms, rather, in dependent response to relation and sociality. Yet the commonality also has formative force in being necessary for the plurality of relation and sociality.

There is a productive similarity between this decolonial plurality and postcolonial thought.[19] The being-in-relation of decolonial plurality can be matched with Bhabha’s constant resort to being ‘in between’ the determinate and the responsive.[20] And these dimensions of relation can, still in a postcolonial perspective, be matched with those of law.[21] A consideration of that match can now, and finally, focus a belated resort to the socio-legal.

The socio-legal, from its outset, has had something of an identity crisis. The field is recognized as existent but its definition and distinctness have proved elusive.[22] One solution focusses on the legal element and sees the socio-legal as an instrumental or applied field, concerned with the effect of a given law on society and not in much need of theoretical elaboration.[23] An alternative solution focusses on the social and sees the socio-legal as informed by the social and needing to be identified with or to draw on ‘some larger theoretical framework such as the sociology of law.’[24] Either solution leaves the socio-legal vulnerable to the structuring of power just considered. An incurious focus on the legal would not account for the variety of ways in which law is subjected to such structuring. The resort to society can reproduce that dependence when ‘the modern nation state’ provides the typical configuration of ‘the general theory of social integration.’[25] ‘Society’ is vulnerable to such appropriation since the modern, the occidental modern, conception of society is an illimitable ‘abstract’ one, sustained by ‘an illusion…that the institution of the social can account for itself.’[26]

What these accounts of the socio-legal leave out of contention, however, is the hyphen. Returning to the Oxford English Dictionary we find that the hyphen ‘connect[s] two words together as a compound.’[27] The compound that is the socio-legal connects a positive, a determinate law with a law responsively infused by the relation to the social – a responsiveness that is imperative if law is to be law, that is, if law is to sustain its effectual relevance to an ever-changing sociality. Not only does law within the socio-legal come to match those dimensions of being-in-relation, of sociality, touched on earlier, but it can also decisively endow such sociality with content. Granted that in so doing, law can still be tied to dominant powers; yet, even then it is not ultimately tied since, as law, it is also tied to an illimitable sociality. There is an irreducible element of being otherwise, of resistance, in law as socio-legal. And this element is sustained because the socio-legal cannot be fused together in some contained concept or theory. The impossibility of the social-legal is its possibility.

* Professor Peter Fitzpatrick is the Anniversary Professor of Law at the Birkbeck School of Law, University of London.

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[1] Derrida, Jacques, ‘How to Avoid Speaking Denials,’ trans. Ken Frieden in Sanford Budick and Wolfgang Iser (eds.), Languages of the Unsayable: The Play of Negativity in Literature and Literary Theory (New York, Columbia University Press, 1989), at 16.

[2] Oxford Dictionaries, ‘Word of the Year,’ available at https://en.oxforddictionaries.com/word-of-the-year/word-of-the-year-2016 (Last accessed 11 January 2017).

[3] Ibid (their emphasis).

[4] Ned Resnikoff, ‘Trump’s lies have a purpose. They are an assault on democracy,’ at https://thinkprogress.org/when-everything-is-a-lie-power-is-the-only-truth-1e641751d150#.o3rs1eetp  (last accessed 11 January 2017). I am grateful to Hester Magnuson for this revelatory reference.

[5] Ibid..

[6] E.g.  Foucault, Michel, ‘The Incorporation of the Hospital into Modern Technology,’ trans. Edgar Knowlton jr., William J. King and Stuart Elden, in Jeremy W. Crampton and Stuart Elden (eds), Space, Knowledge and Power: Foucault and Geography (Aldershot, Ashgate, 2007), at 147-8; Foucault, Michel, The Birth of Biopolitics: Lectures at the Collège de France 1978-1979, trans. Graham Burchell (Houndmills, Basingstoke: Palgrave Macmillan, 2008), at 296; and Foucault, Michel, Security, Territory, Population: Lectures at the Collège de France 1977-1978, trans. Graham Burchell (Houndmills, Basingstoke: Palgrave Macmillan, 2007), at 89, 106.

[7] Massumi, Brian, Ontopower: War, Powers, and the State of Perception (Durham NC, Duke University Press, 2015).

[8] Ibid., at 24-26.

[9] Ibid., at vii.

[10] Bush, G. W., The National Security Strategy of the United States of America (Washington, The White House, 2002), at Preface, 13, 15.

[11] Declaration of the Rights of Man and the Citizen, Article 3.

[12] The Constitution of 1791, Preamble Title II and Title III, Section 1 and Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia C. Miller and Harold S. Stone (Cambridge, Cambridge University Press, 1989), at e.g. 18-19 (Part I Book 2).

[13] Declaration of the Rights of Man and of the Citizen, Preamble, and The Constitution of 1791, Title I.

[14] Marx, Karl, ‘On the Jewish Question,’ in Marx, Karl Early Writings, trans. Rodney Livingstone and Gregor Benton (London, Penguin Books, 1975) 233-4 – emphasis in the original.

[15] Mignolo, Walter D., ‘Delinking,’ (2007) 21 Cultural Studies 449, at 453.

[16] Mignolo, Walter D., The Darker Side of Western Modernity: Global Futures, Decolonial Options (Durham NC, Duke University Press, 2011), at 19.

[17] Quijano, Anibal, ‘Coloniality and  Modernity/Rationality,’ (2007) 21 Cultural Studies 168, at 177.

[18] Chakraborty, Dipesh, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, Princeton University Press, 2000).

[19] Cf. however Mignolo, above n15, at 452, 463.

[20] See e.g. Bhabha, Homi, The Location of Culture (London, Routledge, 1994), at chapter 6.

[21] Fitzpatrick, Peter, and Darian-Smith, Eve, ‘Laws of the Postcolonial: An Insistent Introduction,’ in Eve Darian-Smith and Peter Fitzpatrick (eds), Laws of the Decolonial (Ann Arbor, University of Michigan Press, 1999).

[22] Thomas, Philip A., ‘Socio-Legal Studies in the United Kingdom,’ in J. F. Bruinsma et al. (eds), Precaire Waarden: Liber Amicorum voor Prof. Mr. A. A. G. Peters (Arnhem, Gouda Quint, 1994).

[23] Travers, Max, ‘Putting Sociology Back into The Sociology of Law,’ (1993) 20 Journal of Law and Society 438, at 443.

[24] Nelken, David, ‘The “Gap problem” in the Sociology of Law: A Theoretical Review,’ (1981) 1 Windsor Yearbook of Access to Justice 35, at 36.

[25] Arnason, Johann P., ‘Nationalism, Globalization and Modernity,’ in Mike Featherstone (ed) Global Culture: Nationalism, Globalization and Modernity (London, Sage, 1990), at 224.

[26] Respectively Williams, Raymond, Keywords: A Vocabulary of Culture and Society (London, Fontana Press, 1976), at 291-2; Lefort, Claude, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism (Cambridge, Polity Press, 1986), at 201.

[27] Oxford English Dictionary, CD ROM Version 4.0, Second Edition, ‘hyphen,’ meaning 1.