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Archive for March, 2018

 A friend, to whom I suggested a collaborative paper, wrote me back with a few execellent signposts and directions we should take; he added, en lieu for a small area of legal philosophy, that he “won’t do any postmodern, though, as he’s already done that in younger years”.  Fine with me: Not considering myself a postmodernist myself, despite my affection for some authors and individual works, such as Lyotard’s post foundational argumentative logic in Le Differend, which are often labelled such (though I find such labels and the ideological effects they stand for often misleading if not a bit distasteful – it is often the followers and self-declared disciples of these authors who imagine a “movement” such as postmodernism). Nonetheless, as we were setting out to write about a problem area involving the use and abuse of transnational law, I am curious as to a similarity in two very different authors, writing about very different subject areas; one of them is often considered a “postmodern” writer: Roland Barthes. I think it was Jean-Claude Milner who wrote in his Le Périle structural (2002, quoted in Samoyault 2015: 319 Fn. 2 and paraphrased here), in a comparison of the critique of literature’s language in Sartre and Barthes, that the latter saw that literature was an ideological form and thus implied decision on l’écriture (‘writing’/Schreibweise) and thus every decision on l’écriture included an ideologue (the word dialectics was not used in the quote, non surprisingly for in the heavily Hegelian-influenced pensée or imaginary dialectics implies some necessary materiality, which, for example, a Kantian use of the term does not). Despite a resonance with Althusser, I was more struck by the possibility for analogy with Morris R. Cohen’s and Oliver Wendel Holmes Jr.’s (and to subsequently, Benjamin Cardozo’s) views on jurisprudence – which is of some unquestionable importance, given that the opposite view to theirs stemming from US corporate law (, a certain anglo-american legal positivism,) and the econo-legal Chicago school (à la Posner) in particular on “contract”, “property” and “corporate person” as legal kinds have become influential, if not even hegemonic in international trade laws, and subsequently on transnational jurisprudence.
Myers summarizes (1977: 671), that

“[t]he inherent normative content and scientific structure of the legal systemled Cohen to challenge certain practices and dogmas of American law. He was among the first to attack the phonograph theory of judicial decision-making the notion that judges find and do not make the law.’  An unconscious or hidden establishment of new legal rules under the guise  of stare decisis,  legal fictions, or vague concepts like reasonableness, betrays the science of law. Agreeingwith Holmes, Cohen similarly noted that use of the fourteenth amendment’s due process and equal protection clauses often conceals deep-seated economic and ethical motives.’”

It was the point of Morris R. Cohen that judges and lawyers practice of the law was not, as we could say with Barthes, ideologically innocent; instead the (practice of the) law was influenced by them, thus law was made; but as laws also carried the baggage of their history this was not an arbitrary process either. Thus, I think, Barthes’s point about literature as Milner portrays it, is a fine analogy for Morris R. Cohen’s (and co.) thought on law, and it’s rather surprising to me, that this appears missing in Desautels-Stein’s recent analysis as far as I seem to be aware.

Literature:
Desautels-Stein, Justin (2018) The Jurisprudence of Style: A Structuralist History of American Pragmatism and Liberal Legal Thought, Cambridge, UK: Cambridge University Press
Myers, Edward B. (1977) “Liberalism and Legal Science: The Jurisprudence of Morris Raphael Cohen” in: Notre Dame L. Rev. 52: 653ff
Samoyault, Tiphaine (2015) Roland Barthes: Die Biographie. Berlin: Suhrkamp.

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