This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from (...) feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome. (shrink)

The paper is an exploration in critical legal theory, and argues for a return to thinking of critical legal intervention in political-strategic terms. If the insistence is on strategies of rupture it is because the attention is on what registers as resistant, neither reducible to—nor co-optable by—the order it seeks to resist. It is argued that if law is to offer redress to injustice it has to offer terms that can break incongruently, irreducibly so, with the order of capital, and (...) its economy of representation, not couching critique within its terms, taking flight into the mysticism and escapism of the ‘ethical turn’, or entrusting critique unconditionally to the deconstructive energies of the law. The paper explores how difficult the task facing critical legal theory is in view of law’s power of ‘homology’ and its ‘mechanisms of deadlock’. Both within the courtroom and outside it, a return to a strategic understanding of law underlies its deployment as means of critique or object of confrontation rather than horizon of communicative exchange. (shrink)

At a time of unprecedented migration and social displacement, following a century ravaged by war and hegemonic shift, the question of hospitality presents itself with unparalleled urgency. Taking his cue from Immanuel Kant’s cosmopolitics, Jacques Derrida addressed this question by deliberating on the nature of the political obligation to the other person. Invoking the work of Emmanuel Levinas, this demand is first of all ethical, and unconditional. But Derrida was also acutely aware of the residual violence of the hospitable gesture, (...) which always takes place in a scene of power. The resultant aporias at the heart of hospitality provoked debate between the two authors at the 2007 Critical Legal Conference, and this paper seeks to elucidate and elaborate on this encounter. At stake are the matters of the potential political forms of hospitality, whether it should always been striven for and, ultimately, how one can conceptually reconcile its ethics with its violence. (shrink)

This article critiques and expands upon the jurisprudence of law’s violence from feminist and lesbian/gay/queer perspectives. The incorporation of gender and sexuality into the jurisprudence of law’s violence, via the social experiences of women and gay men, highlights the masculine and heteronormative character of law’s violence, while bringing into view particular forms of law’s violence, and forms of extra-legal but thoroughly legitimate heterosexual male violence, that have remained invisible in previous accounts. A feminist analysis of violence also suggests that law’s (...) regime of violence is neither totalising nor inevitable, and that possibilities for resistance, if not avoidance, do exist. (shrink)

The argument that the provocation defence is adeeply sexed excuse for murder and should beabolished is often dismissed as polemical. Thisarticle challenges this subordinating strategyfavoured by the law of provocation's apologistsand continues to make the case againstprovocation. Drawing on a range of theoreticalapproaches to questions related to polemic,anger, and ethics, it strives to valorisefeminist and queer anger about provocation'svictim-blaming narratives, while remainingcognisant of poststructuralistproblematisations of both law and law reform.

This article considers in a different light the relationship between legal theory and ethics by means of an interpretation of the thought of Adorno and Horkheimer, and of the writings of Richard Rorty, as two moments of a marginal stream of ethics of passions that runs beneath the history of rationalist Western philosophy. It departs from the critique of Modernity as a dialectic of barbarism and civilisation, and from a genealogy of Auschwitz that finds its antecedents in Kantian morality. It (...) also characterises modern culture as one of apathy and bourgeois stoicism, and establishes a link between the cold modern ethos and the dynamics of Nazi hardness. The article turns then to a consideration of some of the responses to the comprehensive crisis of Modernity: the imperative ‘Auschwitz never again’, Adorno’s ‘general enlightenment’ and Horkheimer’s ethics of sympathy. Finally it reflects upon Rorty’s proposal of sentimental education as an effective strategy to foster a human rights culture in Postmodernity, with the aim of bridging the tradition of moral sentiments and contemporary struggles for human rights. (shrink)

Skeptics argue that statements about right and wrong are merely expressions of preferences. They are mistaken; values are not the same as mere preferences. When we assert preferences that affect others, we justify our actions by giving reasons that we believe others should accept. When we evaluate those reasons, we typically reject certain preferences as illegitimate. Values are different from preferences because they entail demands we feel entitled to make of each other, after critical reflection. But this does not require (...) us to become moral realists who base value judgments on the existence of moral facts. Critical normativity adopts the paradoxical stance that value judgments are based on human will but that they can be right or wrong. Human beings cannot live without strong normative claims but we are obligated to be careful about them. This article illustrates this stance by telling three parables of justice. (shrink)

The essay discusses law’s inability to address the phenomenon of human suffering and, at the same time, investigates a possible theoretical kinship between Walter Benjamin’s notion of ‘the expressionless’ and Emmanuel Levinas’s understanding of suffering as the foundation of an interhuman ethics. The kinship between Levinas and Benjamin is examined with reference to suffering in the visual arts and, more specifically, in Matthias Grünewald’s Isenheim Altarpiece and Francis Bacon’s crucifixion triptychs. The essay argues that in the crucifixion scenes of both (...) Grünewald’s medieval altarpiece and Bacon’s triptychs, suffering is what constitutes ‘the expressionless’. After every detail of the image, every element of attribute, motif, composition and colour have been accurately depicted, a residue still remains, an ethical truth that cannot be appropriated into a meaningful unity but that nevertheless calls for a response. While law must always give suffering a utilitarian value in its attempts to assign responsibility for the injury occurred, the essay argues that the fragmentariness in all true art that Benjamin calls ‘the expressionless’ is akin to Levinas’s understanding of the constitutional uselessness of suffering, its essence as ‘for nothing’. (shrink)

This article revisits what the poet Samuel Taylor Coleridge termed the ‘rage of metaphysics’, the grand intellectual engagement that defined the late eighteenth and early nineteenth century Enlightenment. It does so in order to retrieve an alternative jurisprudence, one that described itself as much in terms of sentiment as of sense. It is suggested that one of the most striking expressions of this jurisprudence can be found in Adam Smith's Theory of Moral Sentiments. This attempt to retrieve a sentimental jurisprudence (...) chimes with a wider intellectual movement, headed by the likes of Richard Rorty and Martha Nussbaum, which seeks to reinvest a ‘new’ humanism in both domestic and trans-national legal and political order. It speaks more particularly to recent debates surrounding the nature of human and civil rights, and enjoys an added resonance in the context of recent attempts to fashion a jurisprudence of ‘reconciliation’ in South Africa and elsewhere. (shrink)

This article explores some of the intellectual influences which have shaped the development of Critical Legal Studies in Britain and the contexts in which these influences made themselves felt. It then considers which influences might or should steer Critical Legal Studies in the future. In terms of the past, specific attention is given to the influence of Marxism, Freud and Lacan, feminism, Foucault and Derrida, and recent genres of history-writing. As to the future, the question is asked whether Critical Legal (...) Studies will engage constructively with recent developments in the life sciences and the philosophy of science, and, more generally, whether it will be able to surpass its established mooring in the philosophy of history. (shrink)