From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject

Abstract

This article addresses the ‘gap’ between socio-legal studies and critical legal theory. Examining Derrida’s ‘Force of Law’, it argues that the fault lies as much with the latter’s marginalisation of the social and political character of the law as with the former’s narrow, policy-oriented character. Despite such marginalisation, deconstructive concepts such as supplementarity and différance are important and ought to be preserved for a critical sociology of law. This becomes possible once Derrida’s position is located within the modern dialectical tradition initiated by Hegel and developed by Bhaskar.

Both Hegel and Derrida offer important dialectical concepts for the critique of social phenomena like law, but both in different ways surrender them through recourse to ethical standpoints which marginalise the significance of analysing law as a social and political phenomenon. Bhaskar’s dialectical critical realism is presented as a way through the resulting impasses, specifically by virtue of his dialectical and sociological concept of ‘entity relationism’. This is contrasted with the analytical concept of ‘identity thinking’ which lies at the heart of law and the idea of the legal subject.

The article concludes by outlining how a dialectical approach can elucidate problems of subjectivity and responsibility in the criminal law. It contrasts formal legal conceptions of the subject, which seek to exclude relational issues, with moral conceptions in and beyond the law, which open out to the subject’s relationality. Legal reasoning is located on this contradictory dialectical ‘edge’ and suffers accordingly.