Revisiting Social Dimensions of Law and Justice in a Posthuman Era
Professor of Law in Development,
School of Law,
University of Warwick
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.
Julius Stone; Stonian jurisprudence; Terror Wars; Posthuman
This is a refereed article published on: 6 December 2007
Citation: Baxi, U, ‘ Revisiting Social Dimensions of Law and Justice in a Posthuman Era’, 2007 (1) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2007_1/baxi>
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 émigré 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.
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.
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!
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 deleted1.) Learning is a ‘way of recalling the meaning for us’ of ‘millennial concerns of men [read human beings] with law and justice in so many vastly different generations and constituencies’ (Stone, J, 1966, p 790). And Social Dimensions ends with an invocation of the vision of Isaiah ‘that in the day of human redemption, Justice shall dwell even in the wildernesses’ (Stone, J, 1966, p 798.) I suppose that ‘wilderness’ here besides inviting attention to eco-justice also invites engagement with refugees and stateless persons, who, to evoke Hannah Arendt, remain rightless because their right to have rights stands multitudinously denied, although I must here parenthetically add that I find the lack of dialogical engagement with Arendt in Stone rather puzzling. Stone insisted that ‘sociological jurisprudence (under whatever name)’ should strive to maintain the ‘courage and the vigour in tackling numerous pockets of obvious conflict, distress, confusion and injustice’ (Stone, J, 1966, p 272). Very few sociological jurists in the twentieth century CE have displayed such a lively and integral concern with justice as Julius Stone. The same concerns were articulated by Marianne Constable, who as late as I994,3 laments the fact of ‘ disappearance’ of justice in contemporary (sociological) legal scholarship (Constable, M, 1994, p 577). Constable does not cite Julius Stone nor do her critics who so swiftly sought to and indeed succeeded, in marginalizing the insinuation of justice in doing social theory of law, on so surprising a ground that the notion of justice remained both unspecified and indeterminate! So was her call for a return to post-empirical sociology of law; this too was the clarion-call of Julius Stone half a century ago since we must after all begin reading Stone with The Province.
This brings us to third term - fellowship. In my view, this call for fellowship of juristic learning conceived this way remains a most precious gift of Julius Stone to us all. At one level, fellowship entails constant nurturance of dialogic communities, forms of gathering together of the thinkers and the thought. At another level, fellowship entails the very idea of communities of knowledge determined to relate the understanding of law to the ceaseless struggles for justice, both as interpretive and contested conception. However, with Stone this means two things at least: first, a quest for liberal cosmopolitanism and second the capacity to nurture. Professor Stone was indeed remarkable in his times in respecting the potential that the diversity of the non-European perspective may bring to the doing of social theory of law; and in grasping this diversity, Professor Stone often travelled beyond the Anglo-American horizons. I have in mind here the ways in which he subjects the notion of volksgeist in Savigny (in Stone, J, 1966), and of jural postulates in Pound (in Stone, J, 1965) to interlocution arsing from, and its further recomposition, from the experience of postcolonial societies, especially of India. Was this enough? We may ask; one may maintain that it is indeed not because the itineraries of postcolonial thought remain scarcely entirely summated by such eminent figures as the Mahatma and his ‘heir’ Nehru. Surely, Francophone African, Latin American, and Arabic doers and thinkers deserve as much, if not more narrative importance, as the virtuoso exponents of Anglo-phone postcoloniality4. In the Province there was simply no accessibility to this genre; the trilogy could have afforded much more; however as happens it was finally composed in the second phase of the Cold War. Although hurried and harried comparisons are unfair, it remains worth acknowledging Stone moved much further in constructing the fellowship of juristic learning that may justly be said of such eminent folks such as H. L.A. Hart, Ronald Dworkin, and other successors to the much vaunted Oxford Chair in Jurisprudence. Their texts continue to determine the province and function of law as a rather singular Eurocentric affair. This was far from the case with the Challis Chair of Jurisprudence and International Law and I think this matters a good deal in any retrospective account of the unmaking/remaking of the canons of Euro-American jurisprudence.
Second, fellowship of juristic learning required partnership in sustained nurturance. I simply know of no ‘ jurist’ other than Professor Stone who would have dared to write, without at all being condescending, that ‘…we must enable and even encourage scholars to address themselves’ to address the tasks of just scholarship ‘without making them feel that they have wandered from the main roads of scholarship, or that that their activity is any the less respectable or important than the building or criticism or testing of overall theoretical systems’ (Stone, J, 1966, p 27). In the post-Stone times one hears this great message differently in a variety of feminisms/postfeminisms, critical race theory, and the lesbigay transgender critiques. The critical term here is ‘solidarity’ which may provide a different platform than fellowship and indeed the ground for its critique. Fellowship in juristic learning or knowledges may well constitute forms of epistemic male bonding disregarding different ways of knowing, understanding, and being in the world. It may authorize hegemonic perspectives or even patterns of dominance without hegemony silencing human rights. Or, such fellowship even as begins to celebrate difference may, as Nancy Fraser has painstakingly shown, forego in the pursuit of politics of recognition, the tasks of redistribution.
Whether or not Julius Stone’s textuality contains such residues of injustice remains an open question (for example, I have yet to read a sustained feminist critique of Stone). Indeed, the Julius Stone Institute may well consider organizing a multidimensional critique, including here also the postcolonial, postsocialist, and postglobalization readings of Stone’s corpus. My own take is this: Julius Stone would have had little difficulty in arriving at a reflexive re-working of the notion of fellowship of juristic learning, within an overall structure of thought that gives a ‘near-absolute’ status to the right of freedom and speech and expression, of movements and association, despite his defence and constant re-working of Pound’s theory of interests (against Harold Laski who suggested that it may amount to no more than the ‘beatification of the status quo.’) In any event, it seems to me a fitting memorial to Professor Stone to re-situate his contribution within some new territories of thought.
I may here mention only one example of his nurturance of fellowship. In the 1970s, when Tony Blackshield, and I, responded to a growing student demand (including Jim Spigelman now His Lordship, the Chief Justice of the Supreme Court of New South Wales, Peter Tobin, Eddy Neumann, Sue Armstrong) and decided to launch a new course offering initially named law and the aborigines and later changed to law and poverty, we met with almost unanimous opposition of the Faculty. Such was the intensity of opposition that I was ‘fondly’ referred to as BB (Black Bastard!) However, Professor Stone provided his august curricular hospitality to the launch of a curricular innovation, even when he remained somewhat sceptical of the viability of such a venture. Not merely, did it prove viable but it inspired similar efforts at other leading Law Schools in Australia. Our work resulted in the judicial discourse in the Millirupum Case which contributed to breaking of the conspiracy of silence about the land rights of aborigine peoples, which two decades later paved in the Mabo Case, a fuller restoration.
Going down a bit further in the memory lane, may I here narrate two related episodes that may perhaps demonstrate the limits of the overall spirit of the Stonian dialogism and nurture? The first narrative of this is the image of an agonized and momentarily devastated Hans Kelsen, who was extraordinarily kind to invite me (and suffer my company) every fortnight at his home at Berkeley, during my studentship in the early Sixties. The cause of his anguish was the juxtaposition of the Stone charm offensive when both met at Berkeley, followed by a relentless critique on the ‘mystery and miracle of the basic norm’ that appeared in the Modern law Review. Kelsen was deeply hurt by the contrast between the warmth of affection displayed by Stone at their meeting and the tone and tenor of the Stone article, which to him exceeded the customary limits of articulation of theoretical differences. He asked me whether I was able to understand this difference and I responded by saying that while I had read Stone’s writings, I had never had the privilege of personal interaction with him. Although Kelsen did not pursue this any further, his body language did suggest to me for a moment that I was engaged in a rather wily Oriental discursive move! Later, of course, I dismissed this unworthy thought.
It was indeed a bad moment for Hans Kelsen because his rebuttal submitted to the California Law Review was returned by the student editors with the remark (as far as I now recall) that the Review was not a site for the communication of personal authorial grievances and grudges (on my recall of what Kelsen said to me the exact phrase was that the Review was not a ‘shopping bag’ for such grievances!) Eventually the text as published in the Stanford Law Review belied this arrogant editorial gesture but not without twisting a knife in the Kelsenian wound.
I was of course greatly honoured when Stone invited me for a visiting fellowship to the Department of Jurisprudence and International Law in 1966. And the way in which I was invited and received bespoke of his characteristic generosity of nurturance. This, however, ran somewhat aground when I composed a forty- page response to Stone’s articles in The Australian (or was it the Sydney Morning Herald?) welcoming the International Court of Justice decision in the Namibia Case (entitled ‘Sunset or Dawn’- the title here following what Debussy said of Wagner.) To say that I was furious would be an understatement; even so I shared the text with him. For a long while, this caused an estrangement between us such that I was ready to leave for India with no certain job prospect. Jules however invited me to a sherry and cigar session (what a time there was when one can smoke out the public spaces of its deep secrets!) It was then that he asked me about this polemic – animus was the precise term he used—and sought to educate me into the virtue of what he named as ‘diplomacy of scholarly communication.’ I resisted the temptation then and later (and I regret this in retrospect) to ask him whatever happened to this virtue in his encounter with Kelsen! I also resisted this temptation when a couple of years upon my return to Sydney, Professor Stone came to my room livid with rage at a footnote in Richard Falk’s article in the American Journal of International Law, where Falk said that State of Israel will of course maintain and proceeded then to footnote this observation by saying ‘See, Julius Stone…!’ In fact, I recall his sharing his draft of communication with the Journal.
In the event, our friendship, and on my part a fully constructive moment, proceeded on an unwritten social contract where neither of us would discuss privately our radical disagreements concerning the scope and the nature of colonial world jusirisprudence. I must immediately add that these existential choices that I made preserved for me the fullest academic freedom during my inaugural teaching experience at Sydney. Indeed, so moved he was by my anachronistic ways of ‘teaching jurisprudence’— through the national press reportage of current events —that he did me the rare honour to ‘audit’ some of my lectures!
Professor Stone was admired as well as faulted by his peers as a virtuoso exponent of the grand style of doing jurisprudence. While this would have accorded with his own self-image as an author, he would have resisted the implication that he was in any way providing a grand theory either of lawyer’s reasoning’s and legal systems, or of human law and human justice or of social dimensions of law and justice; he was simply, and resolutely, not in the business of working out a general theory of everything. Indeed, Stone is quite explicit; we should, he writes, not ‘dare to commit all our best expertise to the building and testing of overall theories’ and indeed ‘those who guide research activity should take steps to avoid this excessive commitment (Stone, J, 1966, p 27). As concerns this last observation, I believe it is quite justified to say that Professor Stone himself actually practiced what he preached.
This raises a first question: was Professor Stone engaging in the practice of theory–aversion or was he offering a platform of resistance to theory5? What may it mean to say that one ought to avoid any ‘excessive commitment to theory?’ Professor Stone’s jurisprudential corpus is located in the tradition of philosophical pragmatism as expounded by William James and John Dewey as particularly expounded by Dean Roscoe Pound and in some resplendent ways by Justice Oliver Wendell Holmes Jr. This presentation affords little scope for enquiry concerning fidelity to the Dewy-James corpus by Pound-Stone or for the internal differences between Roscoe Pound and Julius Stone in crafting what must be named as juridical pragmatist tradition of thought. I may say, however, in passing that further explorations in this direction remain worthwhile, especially in terms of Stone’s reception of the American Legal Realists and his overall neglect of the Scandinavian counterparts, especially Alex Hagerstorm and Carl Olivecrona. I do not know how he may have responded to the more recent revival of pragmatism whether of the genre of Richard Posner or Stanley Fish and Richard Rorty. It is astonishing but rather scandously true that none of the new pragmatists seem to have read Julius Stone! High on any intellectual programschrift marking the birth centenary year should remain a further exploration of the elective affinities between Pound and Stone on the one hand and the new exponents of philosophical pragmatists. For the present moment, allow me simply to say that Julius Stone’s work presents embarrassment de riches on this register.
Julius Stone emerges, if I may this far venture, already an unconscious pre-postmodernist! In part, he is indeed saying long before Stanley Fish that theory has no consequences other than those we may wish to attribute to it, although he would not have perhaps gone all the way with the famous Fish essay entitled ‘There is no Such Thing as Free Speech, and It is a Good Thing, too6!’. In part, his caution against theory-addiction resembles the concerns that Michel Foucault raises in an extraordinary monograph named Society Must be Defended. Resistance to theory suspects the ‘grand theory’ tradition of doing social theory; what Michel Foucault names as ‘totalitarian theories’ or ‘all-encompassing global theories’7. This suspicion needs to be fully enunciated by alternate practice of theory which opens up, ‘the immense and proliferating critcizability of things, institutions, practices and discourses’ contributing to ‘a general feeling that the ground was crumbling beneath our feet, especially where it seemed most solid, and closest [nearest] to us, to our bodies and everyday gestures. No longer, says Foucault, do ‘ autonomous and noncentralized theoretical production’ … need a visa from some common regime to establish its validity.’ This may only occur when the ‘theoretical unity’ totalitarian or globally-encompassing theory production is so to speak, suspended, or at least ripped open, torn to shreds, turned inside out, displaced, caricatured, dramatized [and] theatricalized.’< /font>
Professor Stone would have no doubt used less dramatic expressions. However, ever since the Province and Function of Law, his brilliant exegesis on stare decisis precisely displaces, carrricatures, dramatizes, and theatricalizes the scene of crime, as it were! Stone offers strategies of reading the open-ended nature of judicial texts and discourses. Likewise, the re-working of Pound’s theory of interests (Stone, J, 1966, Chapters 4-8) or of the notion of socio-ethical conviction as providing an alternate language for legitimation of power (Stone, J, 1966, Chapters 12-14) do in fact turn the discourse ‘inside out,’ or even ‘ripped open.’ At this point the issue of the practices of politics of reading – that is reading as complicitous or as resistant, emancipatory or repressive, needs to be frontally posed8. What remains distinctive in the overall Stonian pragmatist reading of jurisprudence is the emancipative potential. All the knowledge and wisdom thus encapsulated by ‘jurisprudence’ must be forever tested on the terrains of justice. The mood, method, and message here, I believe, bridges the ways of the old and the new pragmatist thought. Yet, when we juxtapose Professor Stone’s writing on jurisprudence and international law, organization, relations and affairs, we encounter a different set of practices of the politics of reading. I may here only offer a brief remark or two concerning the differend. While no serious reader of his classic works in international law may afford to miss out on his concern for justice, it still remains strongly imbued with the spirit of what John Rawls was to elaborate in his last book The Law of People9 as ‘the foreign policy of liberal society and its well-ordered peoples.’ Stone’s commitment to this, I must say summarily here pending further elaboration in a larger text, is even stronger than that of Rawls. We must note that Rawls began formulating the law of peoples in the wake of the first gulf war and completed his task at the end of the long Cold War, whereas Stone wrote Legal Controls of International Conflict and his classic treatises On Aggression in the middle and high phases of that Cold War. How may we extend this contextual understanding to Stone as he does all through to the forerunners and founders of international law and jurisprudence? In terms of a distinction that Slavoj Zizek now accustoms us to in The Ticklish Subject10, one may well say that if some of his international law texts invite the reproach of being regressively Eurocentric, in contrast, his jurisprudential texts appear progressively Eurocentric (to borrow a distinction made by Zizek.)
To conclude this part of the presentation, I suggest that we need to recourse to a social epistemology type (earlier called sociology of knowledge type) understanding. Understanding Stone’s jurisprudence remains an important project both in terms of resituating him on the contemporary landscape; understanding the social determinants of knowing is an important part of the story; the other part is that of carrying it forward in some neoliberal contexts (described in terms of ‘Gothic horror’ by Professor Margaret Thompson.) The question put another way, is simply this: In what ways may one pursue afresh the Stonian visions of justice, whether within borders or across it, in this hyperglobalizing global moment? This invites some sundry comments about the two ‘terror’ wars and the posthuman and to these thematic I now briefly turn.
In my recent writing, I have been urging a distinction between two kinds of ‘terror’ wars: the war of terror and the war on terror. The term ‘terror’, as philosopher Alian Badiou maintains has no ‘neutral readability.’ Precisely because of this, we need to understand the many histories of the noun (terror) and the adjective (terrorism) which have always and abundantly pre-existed prior to 9/11 and its aftermaths11. The notion of ‘ terror’ as a way of achieving human emancipation has always been contested, both in terms of the ends to be achieved and means deployed, if by ‘terror’ we mean the deployment of asymmetrical collective insurgent political violence directed at civilian and military targets to achieve a stated political purpose. This is scarcely the occasion to revisit the contexts of failed as well as successful political revolutions save saying that the overthrow of an ancien regime during the French Revolution (as well the
October revolution in Russia) often ‘ justifies’ reigns of terror. The British and European colonization was nothing but systematic and widespread use of terror against the colonially subjected peoples, sought to be justified in terms of civilizing mission. It is only in the context of anti-colonial movement that we find with Mahatma Gandhi the repudiation of ‘ terror’ as a means for political emancipation; the making of the postcolonial discourse shows amply the measure of distance between Mahatma Gandhi, the peaceful revolutionary, and others- like Frantz Fanon, Che Guvera, Amilcar Cabral, for example. Very often sovereign incumbents characterize histories of subaltern militant violence the war on terror, complicating the practices of reading and at times of some of ‘justificatory logics’ on either side. In terms of periodization it becomes difficult to say whether the wars of terror precede or follow wars against it.
Howsoever, there are other ways to read terror. I can do no better than invite your attention to Capital where Marx reads the early phase of industrial revolution as offering histories of so many reigns of terror, to the point of suggesting an integral connection between the rule of law and the reign of terror. One speaks in these halcyon days of contemporary economic globalization of MNC terrorism, as in the archetypal situations of the Bhopal catastrophe, Agent Orange, and Ogoniland. Some practices of human rights and social movement activisms speak to us of varieties of catastrophic state terrorisms. And Pierre Bourdieu has been insisting that the ‘terror’? of globalization lies precisely in the fact that it marks an endless warfare against pluralisms. In this sense, perhaps, the remark of Ulrich Beck that 9/11 constitutes the ‘Chernobyl of globalization’ deserves a fuller dignity of discourse.
Further, lesbian ethicists shift these histories a great deal beyond the patriarchal political; Claudia Card writing post 9/11 has been reminding us that women everywhere have been for far too long subject to manifold orders of terrorism. Indigenous peoples have their own poignant stories to tell about the past and contemporary predatory terror. As a potential victim of cross–border terror, each and every human has now a stake in a ‘ terror’ free world; this narrative power stands appropriated by the emergent global politics of collective human security which remains utterly confounded by the new biopolitics of insurgent ‘terror,’ namely the use of individual human body as a weapon of mass destruction.
Much more may be said by a word of fuller elaboration on each count but I must perforce desist, given time-constraints. I suggest all the same that some anxious revisitation of Julius Stone’s international law and jurisprudence may still remain worthwhile in the wake of the two ‘terror’ wars. And indeed I look forward to some of the sessions at this Conference that will speak to us, for example, about the ‘weak state’ (Alex Ziegert), self-defence (James Green), the question of Palestine (Ben Saul), and the feminist critique (Reg Gracar and Margaret Thompson).
Julius Stone already had a ‘lively’ sense of the posthuman when he spoke in relation to Hiroshima-Nagasaki about the ‘depersonalization’ of the means of mass human destruction; likewise the vicissitudes of international humanitarian law never remained outside Stone’s gaze of the materiality of warfare that always disrupts the normativity of legal regulation over armed conflicts. On my present recall, however, Stone could never fully bring himself to condemn acquisition, possession, of nuclear weaponry as contrary to international law, and thought it possible that even the first strike may even by justified in terms of customary and charter provisions concerning self-defence.
In general, jurisprudential concerns do not address the complexity of accelerated social transformations brought about by technologies. Outside the relentless high-growth curves of the technologies of warfare, it remains accurate to say that this holds true even of Julius Stone. One must ask why so? How may one ‘do’ sociology of law or even a social theory about law without foregrounding the role of technoscientific developments? It is important for me to stress that two great feminist thinkers in our times have brought to us the importance of understanding the emergent posthuman: Donna Haraway and N. Katherine Hayles12. Both foreground the new technologies, in particular biotechnology, cyber-technology, and nanotechnology. Both consider the posthuman as constituting just end to the notions of liberal and humanistic subjectivity; both celebrate the emergence of hybrid forms of subjectivity that help us overcome in so many rich ways the conventional boundary distinctions we make between male/female, nature/cultures, humans and animals, and humans and machines. Both disregard the Law of the Father; in particular, Haraway while noting that the new technologies have their origins in patriarchal systems of military technoscience suggests that we move beyond ‘fatherhood.’ The emergent posthuman (a term that Haraway declines to privilege) may be read, with her as the fourth wound to the ‘primary’ human ‘ narcissism,’ the previous three constituted by ‘the Copernican, Darwinian, and Freudian’ revolutions; the fourth wound ‘forces us to acknowledge that our machines are ‘lively’ posing the ‘question of relationtionalities of us with that which is not human, that is ‘ non- living and non-human.’13 Were we to regard the deeply cherished notions of being and remaining human and having rights that animate human rights theory and movement as constituting secondary narcissism, the fourth wound makes somewhat also understandable the neglect by human rights thinkers of the emergent discourse of the posthuman. At the same time new forms of technonarcissisms also emerge14.
The postbiological also extends some ongoing research in mapping the human brain. Ray Kurzweil proclaims that ‘ we will have detailed mathematical models and computer simulations of all of the regions of the brain by the mid 2020s. So by the end of the 2020s we'll be able to fully recreate human intelligence.’ This will be a ‘profound transformation’ because ‘…it will be a very powerful combination to combine the subtle and supple powers of human pattern recognition with ways in which machines are already superior. Machines can think more quickly than we can. They're much better at logical thinking and much better at remembering things: a $1000 notebook computer can remember billions of things accurately whereas we're hard-pressed to remember a handful of phone numbers. And most importantly, machines can share their knowledge their skills, and their insights at electronic speed, which is a million times faster than human language.’ Further while ‘nonbiological intelligence, once it achieves human levels, will double in power every year, whereas human intelligence - biological intelligence - is fixed. We have 10 to the 26th power calculations per second in the human species today, and that's not going to change, but ultimately the non-biological side of our civilization's intelligence will become by the 2030s thousands of times more powerful than human intelligence and by the 2040s billions of times more powerful.’15
I must perforce now conclude, with a couple of brief remarks. The ‘liberal’ and even post-liberal sociologists of law have rather comprehensively failed to heed to implications of technoscientific development. In the earlier times, they have overall consigned to a near-total neglect Marx, and Marx-like, analysis of the forces of production, and have remained merely content with superstructural analysis. This tendency now presents itself as simply be ethically disastrous, especially were the postmodern, postfeminist, postcolonial, and the related forms of post-isms, to repeat this feat, ignoring in the processes the rediscovery of hybrid human agency in a posthuman word. Nor, on a related register, may human rights and new social movements folks (I say folks because that otherwise revolutionary term ‘comrades’ has fallen into such sullen disuse) for a struggle towards new practices of reading posthuman dignity and rights so richly offered by both Haraway and Hayles.
Finally, for the present purpose, I here rather heavily suggest the need to revisit rather fully Julius Stone’s potential for resituating the posthuman; both in Human Law and Human Justice and in Social Dimensions of Law and Justice, he critiques the Enlightenment notions of civilization as a twofold mastery: mastery over nature and over human nature, no doubt a deeply ambivalent rhetorical gesture. I believe that some future ways of reconstructing the Stonian notion of the fellowship of juristic learning invites juxtapositioning with Haraway and Hayles, even in an act of structural coupling,’ to evoke the autopoesis imagery so dear to Niklas Luhmann and Gunther Teubner.
If this structural coupling produces a hybrid posthuman subjectivity, I suggest that this may, in turn after all, further new modes of production of insurgent global public goods. By way of a most final concluding word (if such things could ever come to pass!) allow me to say that the future tasks of sociology of law or sociological jurisprudence must indeed remain renegade! No longer may these performances/enactments/empoltments afford to remain technoscientifically naïve. How may the forms of sociological jurisprudence for the first and ensuing decades of the 21st Century CE pursue this monstrous as well as a most wonderfully constructed posthuman narrative mode? How indeed may activist (justice-oriented) ways cope with the ‘Gothic horror’ of protean forms of neoliberalism, or to vary the metaphor with Donna Haraway, the ‘promise of monsters?’ How may we struggle to define new forms of agency and social action apt, and even perhaps even adequate to, these challenges in particular posed by neurobiology/ neuro-philosophy and the futures of nanotechnology?16 Many thanks for your bearing with such dignified fortitude this assemblage of random remarks, possibly of some resonance even for the second Julius Stone birth centenary celebration!
1 Towards the understanding of this Stonian metaphor, Tony Blackshield made a pioneering contribution soon after the trilogy appeared. See, Blackshield, A R (1967) ‘The Enclaves of Justice: The Meaning of a Jurisprudential Metaphor,’ Maine Law Review, 19 pp 131 – 180. Reading Stone and Blackshield together (as well as Ilmar Tammelo’s subsequent monographic contribution Justice and Doubt) remains exciting as providing some early juristic anticipation of the salient Foucualdian notions.
2 One way to reading this statement suggests that injustice lies at the root of conflict, distress, and confusion.
3 Constable, M (1994) ‘Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law,’ Law & Social Inquiry 9, pp 551-590.
4 Here I can do no better than to invite your attention to a precious text: see, Young, R, (2001) Postcolonialism, an Introduction (Oxford, Blackwell).
5 For this distinction see Chapter 1 in Baxi, U (2008) Human Rights in a Posthuman World (Delhi, Oxford University Press).
6 Fish, S (1994) There's No Such Thing As Free Speech: And It's a Good Thing, Too ( New York, Oxford University Press); see also, Fish, S (1999) Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, Duke University Press); and Fish, S (1998) ‘Truth and Toilets: Pragmatism and the Practices of Life,’ in Dickstein, Morris (ed.) (1998) The Revival of Pragmatism: New Essays on Social Thought, Law, and Culture (Durham and London: Duke University Press) pp. 418-434
7 Foucault, M (2003) Society Must be Defended (New York, Picador) at pp. 6, 7, 10-12, 47-48, 53; See for a fuller elaboration, Baxi, note 5, supra.
8 See Baxi, U (2006) ‘Politics of Reading Human Rights: Inclusion and Exclusion within the Production of Human Rights,’ in Meckled–Garcia, S and Çali, B (eds.) The Legalization of Human Rights: MultidisciplinaryPerspectives on Human Rights and Human Rights Law (London, Routledge) pp. 182- 200.
9 Zizek, S (1999) The Ticklish Subject: Absent Subject of Political Ontology (London, Verso).
10 Note 9, supra.
11 See Baxi, U (2005) ‘‘The War on Terror and the ‘War of Terror’: Nomadic Multitudes, Aggressive Incumbents, and the ‘New International Law’’ Osgoode Hall Law Journal 43, pp 7-43.
12 Perhaps, the only major framework here stands provided by the work of Charles Ogburn who directed our attention to the ‘lag’ between technology and the adaptive cultures of the common law conceived as common law judicial culture. However, I may not pursue this large question here save saying that it is worth collectively pursuing. The corpus of Donna Haraway and N. Katherine Hayles is here especially pertinent. See Haraway, D (1991) Simians, Cyborgs, and Women: The Reinvention of Nature (London, Free Association Books); Haraway, D (1992) ‘The Promises of Monsters’ in Grossberg, L, Nelson, C and Treichler, P (eds.) Cultural Studies (New York: Routledge) pp 295 – 337; Haraway, D (1989) Primate Visions: Gender, Race, and Nature in the World of Modern Science (New York, Routledge); Haraway, D (1997) Modest_Witness@Second_Millennium.FemaleMan©_Meets_OncoMouseTM: Feminism and Technoscience (New York, Routledge); Haraway, D (2003) The Companion Species Manifesto: Dogs, People and Significant Otherness( Chicago, The Prickly Paradigm Press). See also the following works of Hayles: Hayles, N K (2005) My Mother was a Computer: Digital Subjects and Literary Texts (Chicago, University of Chicago Press); Hayles, N K (1999) How We Became Posthuman: Virtual Bodies in Cybernetics, Literature, and Informatics (Chicago, Chicago University Press); Hayles, N K (1999) ‘Simulating Narratives; What Virtual Creatures Can Teach Us?’ Critical Enquiry 25, pp 1 – 26 and Hayles, N K (2006) ‘Unfinished Work: From Cyborg to Cognisphere’ Theory, Culture, & Society 23, pp 159 – 166.
13 See, Gane, N and Haraway, D (2006) ‘ When We Have Never Been Human, What is to Be Done? An Interview with Donna Haraway,’ Theory, Culture & Society 23, pp 135-158 at pp 140-141.
14 See, Baxi, U (1993) Inhuman Wrongs and Human Rights (Delhi, Har-Anand) at at pp 18-27.
15 See, ‘Singularity: Ubiquity Interviews Ray Kurzweil,’ in Ubiquity, an ACM Magazine and Forum, <> June 29, 2007. See for a fuller elaboration, Baxi, note 5, supra, Chapter 6.
16 See, Dennett, D C (2000) Freedom Evolves ( London, Viking) at p 173; Searle, J (2007) Freedom & Neurobiology: Reflections on Free Will, Language and Political Power ( New York, Columbia University Press).
Baxi, U (1993) Inhuman Wrongs and Human Rights (Delhi, Har-Anand)
Baxi, U (2005) ‘‘The War on Terror and the ‘War of Terror’: Nomadic Multitudes, Aggressive Incumbents, and the ‘New International Law’’ Osgoode Hall Law Journal 43, pp 7 - 43.
Baxi, U (2008) Human Rights in a Posthuman World (Delhi, Oxford University Press).
Blackshield, A R (1967) ‘The Enclaves of Justice: The Meaning of a Jurisprudential Metaphor,’ Maine Law Review 19, pp 131-180.
Constable, M (1994) ‘Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law,’ Law & Social Inquiry 9, pp 551-590.
Dennett, D C (2000) Freedom Evolves ( London, Viking).
Dickstein, Morris (ed.) (1998) The Revival of Pragmatism: New Essays on Social
Thought, Law, and Culture (Durham and London: Duke University Press).
Fish, S (1994) There's No Such Thing As Free Speech: And It's a Good Thing, Too (New York, Oxford University Press)
Fish, S (1999) Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, Duke University Press).
Foucault, M (2003) Society Must be Defended (New York, Picador).
Haraway, D (1989) Primate Visions: Gender, Race, and Nature in the World of Modern Science (New York, Routledge).
Haraway, D (1991) Simians, Cyborgs, and Women: The Reinvention of Nature (London, Free Association Books).
Grossberg, L, Nelson, C and Treichler, P (eds.) (1992) Cultural Studies (New York: Routledge) pp 295 - 337.
Gane, N and Haraway, D (2006) ‘When We Have Never Been Human, What is to Be Done? An Interview with Donna Haraway,’ Theory, Culture & Society 23, pp 135-158.
Haraway, D (1997) Modest_Witness@Second_Millennium.FemaleMan©_Meets_OncoMouseTM: Feminism and Technoscience (New York, Routledge).
Haraway, D (2003) The Companion Species Manifesto: Dogs, People and Significant Otherness( Chicago, The Prickly Paradigm Press).
Hayles, N K (1999) How We Became Posthuman: Virtual Bodies in Cybernetics, Literature, and Informatics (Chicago, Chicago University Press).
Hayles, N K (1999) ‘Simulating Narratives; What Virtual Creatures Can Teach Us?’ Critical Enquiry 25, pp 1 – 26.
Hayles, N K (2005) My Mother was a Computer: Digital Subjects and Literary Texts (Chicago, University of Chicago Press).
Hayles, N K (2006) ‘Unfinished Work: From Cyborg to Cognisphere’ Theory, Culture, & Society 23, pp 159 – 166.
Meckled–Garcia, S and Çali, B (eds.) (2006) The Legalization of Human Rights: MultidisciplinaryPerspectives on Human Rights and Human Rights Law (London, Routledge).
Searle, J (2007) Freedom & Neurobiology: Reflections on Free Will, Language and Political Power ( New York, Columbia University Press).
Stone, J (1946) The Province and Function of Law (London, Stevens & Sons, Ltd).
Stone, J (1965) Human Law and Human Justice (London, Stevens & Sons, Ltd).
Stone, J (1966) Social Dimensions of Law and Justice (Stanford, Stanford University Press).
Young, R, (2001) Postcolonialism, An Introduction (Oxford, Blackwell).
Zizek, S (1999) The Ticklish Subject: Absent Subject of Political Ontology (London, Verso).
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