CRITICAL JURISPRUDENCE

Vol. 16 No. 10 (October, 2006) pp.830-832

CRITICAL JURISPRUDENCE: THE POLITICAL PHILOSOPHY OF JUSTICE, by Costas Douzinas and Adam Gearey. Oxford: Hart Publishing, 2005. 388pp. Paperback. £22.00 / $44.00. ISBN: 184113452X.

Reviewed by Clifford Angell Bates, Jr. Warsaw University, Institute of the Americas and Europe. Email: c.a.bates [at] uw.edu.pl.

After reading this book several dozen times, I can still not figure out what Costas Douzinas and Adam Gearey are really trying to say. The book reads more like a disjointed series of papers about different theories of jurisprudence, interjected with the typical leftwing posturing, attempting to mask the fact the authors have really nothing significant to say. Perhaps I am being unfair, in that it is also clear that book in question has clearly suffered from too many revisions on its way to its current form. But I must ask, what is the intention of the authors—to inform or show off? If it is the latter, then they may have very well succeeded. But if it was to be the former, then this book is a spectacular failure.

The book is divided into 5 parts. The first part acts as the introduction, or as Douzinas and Gearey put it, introductions, perhaps because this part has two chapters—one trying to introduce the question of jurisprudence into the text, and the other trying to explain poststructuralism and law. Here we get into their attempt to make a case of what jurisprudence is about and what it really should be about. But their attempt at showing off how smart they are and their jargon gets in the way of the reader trying to understand what they are getting at. Here is a typical example:

Law is written to be applied in the future; interpretation is the life of law. We must abandon, therefore, the Grundnorm and the rule of recognition for the meanings of meaning. We must replace or supplement the technical rules of legal reasoning with the protocols of interpretation or with the stuff of rhetorical tropes and hermeneutical protocols. We must approach the texts of law through the law of texts. (p.7)

Also, the jargon, as seen in that above example, goes like this throughout the book. I do not know. I thought that the principle of hermeneutics was to help clarify understanding, not obscure it, that jargon or specialized terminology should only be resorted to if more everyday words cannot do the job to help make what is being discussed more comprehendible. Also, for people of the left, they love to use such complicated and uncomprehending language that is beyond the classes and people for whom they claim to be speaking. Yes, they speak for them, but by using such language and such jargon, they do not really want to either communicate or be understood by them.

In Part 2, Classical Jurisprudence is the target of discussion. And we have four chapters dealing with the themes of natural law, justice, positivism, and a post-modern theory of judgment. In fact, Chapter 6 on thoughts pointing to a post-modern theory of judgment is the intellectual heart of the book. One could argue it is really what the book is all [*831] about. The previous three chapters were the necessary steps of deconstructing the historical traditions of jurisprudence to get us to where the authors can now show us the alternative. But the 15 pages leave us hungry still and not at all sure what the authors are trying to ultimately say. Perhaps some may say I am not being fair, that such filling out will be found the in the following parts. Honestly, this compels me to say that the job of deconstructing the different aspects of traditional jurisprudence have moments of insight and clarity, helping the reader to understand the limits and defects of those models of jurisprudence. To deconstruct, however, is not enough, and what is reconstructed to stand in place should be better and truer about human action than what is replaced. So this is why the failure to flush out more fully the points addressed in Chapter 6 is greatly disappointing and what reduces this work’s value to those who seek to help bring justice more fully into the realm of practice, which is the point of law.

Let us turn to Part 3, dealing with philosophic differences, in which we have two chapters considering law and race theory and the other on Marxism. So it seems that a post-modern theory of judgment leads us to racial identity politics, in that any rational discourse is ultimately pointless. How can one deliberate about aspects of human action that are outside the realm of choice? As for the attempt to recover Marxism, the attempt to turn the modern theory of Marx into something compatible with a philosophy that comes from Heidegger and Nietzsche, the footwork of great artists. Unfortunately, neither Douzinas nor Gearey is such an artist. Part 4 on Critical Jurisprudence brings in the usual suspects: critical legal studies, and race and post-colonial studies. These chapters on their own in some law review would not be that problematic, but here they just seem like additional flavoring put on top of the main course to add some needed zing. Actually, what results is that the additions overpower and obscure the reader from asking why the holding of this set of prejudices is any more critical than holding contrary or opposite ones? From the logic of their own grundnorms, they really cannot justify their choices, so why are these privileged and not others? I doubt neither Heidegger nor Nietzsche could agree with these authors’ choices.

This takes us to the final part concerning aesthetics and jurisprudence, with two chapters, the penultimate dealing with how psychoanalysis became law and the final chapter on literature and law. A final post-modern flavoring of selves and fiction is given in lieu of a conclusion. So the reader is left dazzled and overwhelmed, feeling that “wow!! These guys are awfully smart.” But if you ask the reader what it is all about, what is the justice the authors seek that other traditional forms of jurisprudence cannot provide, but their critical jurisprudence can?

An answer is illusive, save to say that Douzinas’ and Gearey’s theory offers all the current prejudices of the western left, yet no way to justify holding such prejudices save for, using the language of the authors, a nihilism of power with the mask of aesthetics to dazzle and [*832] confuse. Thus, the book ultimately is full of dazzle and flair but hollow at its core, save for the posturing of left wing academics trying to impress their fellow ideologues.

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