Week 3 PDF - Theorising Law

THEORISING LAW Kenneth B Nunn “Law as a Eurocentric Enterprise” RECAP MODULE THEME: LAW, DEMOCRACY AND JURISPRUDENCE (ONLINE LECTURE) FAMILIARISE YOURSELF WITH KEY ADMINISTRATIVE INFORMATION NOTE PLAGIARISM AND GENERATIVE AI PROHIBITION READER COLLECTION: LAW 2-40 TUESDAY 11:30 – 13:30; WED 12:30 –...

THEORISING LAW Kenneth B Nunn “Law as a Eurocentric Enterprise” RECAP MODULE THEME: LAW, DEMOCRACY AND JURISPRUDENCE (ONLINE LECTURE) FAMILIARISE YOURSELF WITH KEY ADMINISTRATIVE INFORMATION NOTE PLAGIARISM AND GENERATIVE AI PROHIBITION READER COLLECTION: LAW 2-40 TUESDAY 11:30 – 13:30; WED 12:30 – 14:30; THURS 12:30 – 14:30 STARTING POINT Every mode of reasoning used by lawyers, every application of legal principles to a specific scenario and every method of argumentation based on legal materials involves a normative and contestable vision of law and social and political life Any study of any area of law therefore relies on a set of automatic / silent presuppositions which reflects or supports a certain cultural and ideological worldview Therefore, no field or topic of law is immune to theoretical treatment Jurisprudence / legal theory traditionally the area where these hidden/subterranean assumptions are explored and discussed – but it is not the only place where such exploration and discussion should take place THEORISING LAW NATURAL LAW LEGAL REALISM LEGAL POSITIVISM KENNETH B NUNN “LAW AS A EUROCENTRIC ENTERPRISE” ABOUT THE AUTHOR Professor of Law at the University of Florida Published on topics such as race, diversity, critical theories and human injustice. FOCUS OF ARTICLE Engages modern Western law from an Afrocentric perspective Argues that all law has a cultural base – its content, how it works and how it is understood “is the creation of a particular type of culture”, “a particular set of historical and political realities”, “a particular mind-set or world view” Critique / interrogate the idea of (modern) law as universal, arguing that instead it is Eurocentric as it is formed in the image of the particular history, values and world view of European-derived societies. READING GUIDE READ FULL ARTICLE – WITH A FOCUS ON: Introduction (323 - 329) “I – The Critique of Eurocentricity” (329 - 338) II – Law and the Eurocentric World-view (338 - 351) Pay close attention to footnotes – dense; elaborates and clarifies main text and arguments Nunn text also relevant to texts on critical race theory, African philosophy and decolonizing democracy KEY CONCEPTS Universalism / Universality – the claim that certain ideas / facts apply “universally” – i.e. to everyone, all times and all places, irrespective of religious, cultural, social differences and boundaries (versus particularity / relativism); that certain truths are and should be common to all; that certain norms, values and concepts apply generally to all people and cultures (CF: Universal Declaration of Human Rights) Culture – see fn 4: “patterns… of and for behavior”; “transmitted”; “achievement of human groups”; “products of action… influences upon further action” AND “what a society is and does”; “what a society has created, what a society values and what a society believes” KEY CONCEPTS Eurocentric / Eurocentrism – Europe + Center - centering European culture, perspectives and interests, viewing Europe as superior or advanced form of human existence; appropriating non-European cultures Posits Europe as the central and normative benchmark of human history, knowledge, experience “a pervasive bias located in modernity’s self-consciousness of itself. It is grounded at its core in the metaphysical belief or idea (Idee) that European existence is qualitatively superior to other forms of human life” (Tsenay Serequeberhan) INTRODUCTION “Law, as understood in European-derived societies, is not universal” Rather – created by different human societies, informed by specific cultural perspectives and socio-political and environmental contexts (Not only referring to Western Europe, North America etc. but “countries that have adopted the values and institutions of Western culture” – Westernised and not only geographically Western countries) Dominant conception of law (Western; Euro-American) reflects a distinct Western European cultural form, practice and belief system (world-view) INTRODUCTION …/1 Western European culture – “highly materialistic, competitive, individualistic, narcissistic; and places emphasis on the consumption of natural resources and material goods” (325) “European cultures tends to take aggressive, domineering stances towards the world’s inhabitants” (326) Links the development of European and European-derived culture to racism, colonialism, group-based oppression, environmental degradation etc “European culture has produced a legal tradition that, while offered as universal, is distinctly its own” (326) “THE GUN, THE SHIP AND THE PEN” (L Colley) INTRODUCTION …/2 Legal tradition – “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and polity, about the proper organization and operation of a legal system and about the way law is or should be applied, studied, perfected and taught” (327) Civil law, common law, socialist law traditions all of “European origin” + make up the bulk of what we call “THE LAW” – BUT actually express ideas and embody institutions that have been formed in the course of European history and culture MAIN ARGUMENT - Law is a Eurocentric Enterprise – part of broader political and cultural project of promoting European values and interests at the expense of others; reinforcing a Eurocentric way of thinking, affirming Eurocentric cultural experience THE CRITIQUE OF EUROCENTRICITY Racism, sexism, classism and other modern world problems result from the fundamental nature of “European society and culture” – not product of misguided individuals or external conditions Rather they derive from the “world-view and conceptual system” at the core of European culture AT THE CORE OF EUROPEAN CULTURE: “profoundly materialistic” (331) 1 – ontological sense - reality viewed in material terms, made up only of physical matter / physical matter as the fundamental substance of reality and nature; all non-material/intangible elements (consciousness, spirituality etc) all secondary to “material reality” 2 – sociological – primary social goal centered on competitive acquisition and possession of material goods and resources THE CRITIQUE OF EUROCENTRICITY (1) Dichotomous reasoning – viewing and explaining the world as comprising ‘incompatible opposites’ – self/other; reason/emotion; superior/inferior; mind/body; science/myth leading to either/or conclusions – and domination and exclusion - Contrast with diunital reasoning – emphasizes complimentary and inclusive reasoning – both/and conclusions (2) Employment of Hierarchies – differences / opposites structured in terms of inequality of worth / value / contribution (3) Analytical thought – “an item or issue under consideration must first be broken down into its constituent parts before each part is then separately examined.” - interested in parts, not always the whole. (4) Objectification – reality structured by subject / object division; world outside the human subject comprised of objects that can be owned, used, controlled, disposed of etc (5) Abstraction – something is viewed as abstract rather than concrete; reduce a concept or idea and separate from its real, concrete context, meaning and realisation (6) Extreme rationalism - “to the Eurocentric mind everything is connected in an ordered and structured way, organized around the principles of cause and effect.” (322) e.g. idea that everything in nature and universe has a scientific, observable, calculable logical explanation – no myth, no emotion, no supernatural forces to see and explain the world (7) Desacralization - priotisation of secular worldview, a “despiritualized world”, where nothing is held to be sacred or where the sacred or divine is displaced to the private or spiritual realm MAIN TAKE-AWAYS SO FAR … Dominant view of law infused with this Western materialistic culture (competition, domination, division, hierarchy, rationalization etc) This Eurocentric order of law shapes thought, action, behaviour, beliefs, ways of life and institutions – orders how we conduct our lives and thus governs our existence If democracy is about collective governance of human affairs, does this include the ideas by which we organize our lives and conduct our affairs? THE CRITIQUE OF EUROCENTRICITY “What is presented here is, by necessity, a generalization. Every person who resides within a Eurocentric society, however, will be predisposed to behave and think in Eurocentric ways simply because of the mode of socialization and the reward structure present in the society. In this way, Eurocentricity reaches out to delineate and direct everything the Eurocentric society produces, within the realm of art, science, economics and social life. All social and cultural productions - even the society's concept of the law - will reflect the materialism, aggression and individualism that Eurocentricity generates.” (338) LAW AND THE EUROCENTRIC WORLD-VIEW Nunn argues that features of the Eurocentric worldview are present in Western jurisprudence and specifically discusses three main schools of legal thought to be studied in coming lectures: natural law, positivism, legal realism. NATURAL LAW – critiques shift from premodern natural law (ancient / medieval) which emphasize cosmological conception of law (law derived from higher norm) to modern law (law’s rational basis lies in control, regulation, limitation, prohibition) Natural Law ultimately ended up into a rationalist, logical, bureaucratic, desacralized view of law no longer imbued with deeper essences or values But critiques the “naturalisation” of hierarchy (slavery and inequality as part of natural order) in many natural law discourses POSITIVISM – critiques the Austinian model of legal positivism – law as the command of the sovereign; removes morality from law; law now analytical and abstracted; reduced to the social fact of power Rise of positivism in 19th century surfaces all the major themes of Eurocentric thinking: rationalization, dichotomies, abstraction, objectification, descralisation, analytical thought etc LAW-IN-CONTEXT – theories that aim to challenge features of positivism and remain marginal in Eurocentric legal cultures; introduce important critiques of Western law BUT runs counter to the dominant Eurocentric cultural system in jurisprudence (RE-READ THIS SECTION AFTER STUDYING THE THEORIES UNDER DISCUSSION IN COMING WEEKS) LAW AND THE EUROCENTRIC WORLD-VIEW Modern law fundamentally defined by Eurocentric system and it is practiced, taught and theorized in a manner that celebrates Eurocentric heritage DICHOTOMOUS REASONING AND HIERARCHY: Between law and custom; common law and customary law; objective vs subjective ; formal vs informal LEGAL EDUCATION AND PRACTICE: Taken over by extreme rationalisation and analytical thought – law reduced to facts and rules ABSTRACTION: contract law abstracts contract from the actual relationship between the parties LAW AND THE EUROCENTRIC WORLD-VIEW “WHAT HAS COME TO BE KNOWN AS “THE LAW” IS REALLY A PARTICULAR SOCIAL CONSTRUCTION THAT EXHIBITS CULTURAL ATTRIBUTES PECULIAR TO EUROPEAN AND EUROPEAN-DERIVED SOCIETIES. LAW IS AN ARTIFACT OF A EUROCENTIRC CULTURE, AND AS SUCH IT REFLECTS THE CULTURAL LOGIC, EPISTEMOLOGY, AXIOLOGY, ONTOLOGY, ETHOS, AESTHETIC CHOICE OF EUROCENTRIC CULTURE. THE CORE ATTRIBUTES OF EUROCENTRICITY ARE READILY DISCERIBLE WITHIN THE LAW…” (350) READ FURTHER IN CONTEXT OF LAW AND DEMOCRACY Remainder of article develops argument that Eurocentric law contributes to Eurocentric hegemony (in the US context: white dominance) INSTRUMENTAL FUNCTION: Central nervous system of a vast body of social and economic regulation; Controls and commands; Legitimates power relations; and structures and organizes the world i.to. Eurocentric principles COERCIVE FUNCTION: command obedience; imposes sanctions; holds monopoly on violence Both functions related to the “cultural oppression” (subjugates other cultures – part IV) and “ideology” (legitimates relations of domination – part V) NEXT WEEK READ WESSEL LE ROUX “NATURAL LAW THEORIES”