Domain 03 of 05
Law
Legal orders are legitimated by procedure rather than by justice, which is exactly what makes procedural correctness feel like fairness, and every legal order has a founding act of force it has to forget.
Ask a lawyer why a rule is binding and you get another rule. Ask far enough up the chain and you reach either a founding document or a founding act. This domain is about what sits at that point.
Weber, and why procedure feels like justice
Max Weber's three types of legitimate authority are traditional (it has always been so), charismatic (this person is extraordinary) and rational-legal (the correct procedure was followed by the correct office). Modern legal authority is the third. Its legitimacy comes from procedure rather than from any claim about justice, which is precisely why procedural correctness feels like fairness to people inside the system, and why the question of who wrote the procedure tends not to get asked.
The realists and their descendants
American Legal Realism (Oliver Wendell Holmes, Karl Llewellyn, Jerome Frank, 1920s and 1930s) broke with the idea that judges deduce outcomes from rules. Judges decide, then justify. Holmes defined law as prophecies of what the courts will do in fact.
Critical Legal Studies (Roberto Unger, Duncan Kennedy, Morton Horwitz, 1970s and 1980s) radicalized that. Legal doctrine is indeterminate: competing principles can justify opposite outcomes in most hard cases, so what settles them is politics, and rights language can entrench a distribution as easily as it can challenge one.
The objection to keep attached is strong. Most law is never litigated because most outcomes are in fact predictable, and critics argue Critical Legal Studies mistook the hard cases for the whole of law.
The violence at the origin
Walter Benjamin, Critique of Violence (1921) separates law-making violence, the founding act that establishes an order and is itself outside any law, from law-preserving violence, the routine enforcement that maintains it. Every legal order has an origin it needs to forget in order to look legitimate.
Charles Tilly makes the same argument with state-formation evidence in infrastructural power: states as protection rackets that won and then legitimated themselves in retrospect.
The view from the colony
Mbembe's necropolitics is the correction this domain needs. Emergency law, identification systems, pass laws and the camp have a colonial history that predates their European one, and a theory of legal exception built only from Weimar and the war on terror is reading modern law from inside the metropole.
Who carries the theory
Schmitt on the Glossary / SchmittThe claim that legal order rests at bottom on a decision by a concrete authority, not on a rule. Rules only work inside a situation somebody first made orderly.Full glossary at the foundation, with all the warnings that page carries. Agamben on the Glossary / SchmittEmergency suspension of normal law, declared by the authority that also decides an emergency exists.Full glossary becoming permanent, with the discipline his own COVID writing failed to apply. Foucault on the prison, which is where law meets the body.
Where to go next
- Critical Race Theory as the descendant of Critical Legal Studies applied to race, starting with Derrick Bell and Kimberlé Crenshaw.
- Robert Cover, "Violence and the Word". A short, devastating essay on the fact that legal interpretation always takes place on a field of pain and death. Whatever you think about the rest of this domain, read this one.