Enchantment, Aesthetics, and the Superficial Powers of Modern Law
Passavant, Paul A., Law & Society Review
Eve Darian-Smith, Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe. Berkeley and Los Angeles: University of California Press, 1999. xvii + 256 pages. $50.00 cloth; $19.95 paper.
Ronen Shamir, The Colonies of Law: Colonialism, Zionism, and Law in Early Mandate Palestine. Cambridge, UK: Cambridge University Press, 2000. xvi + 216 pages. $64.95 cloth.
Myth, community identity, tradition. Scholars across theoretical and political divides characterize modern law as abstract, rational, and universalizing-in other words, modern law supersedes and is at war with those enchanting aspects of premodern life. And legal liberalism, that archetype of modern law, is either celebrated or condemned for being antagonistic toward the value of solidarity. In light of their focus on the abstract, rights-bearing individual, liberals argue that legal rights should protect the autonomous individual against the potentially suffocating effects of community. Critics, in turn, lament the fact that liberal legal rights function as "trumps" for individuals against the community, thereby fraying the bonds that hold society together. It is interesting to note that liberalism's critics share a conception of law and its relation to society that liberalism claims for its form of law-liberal legal rights are theorized as instruments that derive from elsewhere, intrude upon society, and then create and preserve an island of sovereignty for an isolated individual. By acting as a barrier for the individual against society, liberal rights abstract the individual from the real social relations that define and sustain the individual's life and cause fragmentation where once there was community. Through all of this, law remains seemingly unaffected by social forces. Thus, there is common ground between liberals and their critics at the level of describing modern law's characteristics even if there is no evaluative agreement to be had.
The scholarship of many identified with the Law and Society movement challenges this theory of legal rights and the relationship of law to society. Stuart Scheingold (1974), for instance, suggests in The Politics of Rights that the promise of legal rights may very well be mythical, but if their mythological status is as deeply and as widely held as it seems to be in the United States, then using a discourse of rights to pursue one's claim to justice might not be as deluded as Critical Legal Studies (CLS) or, more recently, Communitarians have claimed (Glendon 1991). Legal rights might have purchasing power in the United States precisely because legal decisionmakers and the American public believe rights are real and act on this basis to protect "rights" despite the best efforts of theorists to demystify rights as figments of a collective imagination (Scheingold 1974:143; Tushnet 1984). Scheingold (1974:58) argues that to "claim a right is thus to invoke symbols of legitimacy that transcend your personal problems. At the same time, you tacitly commit yourself to accept obligations which inhere in the existing system-that is to say, the pattern of mutual and reciprocal commitments that defines the fabric of the society." Law, from this perspective, is not completely Other to society-it is one of the discursive registers within a social formation, albeit an especially significant one that articulates with other signifiers of social standing and political legitimacy. As such, legal mobilization wields not only divisive potential but interpellative possibilities that can produce forms of association and affiliation (Scheingold 1974:147; McCann 1994; Passavant 2000; Passavant & Dean 2001).
In this essay, I echo Peter Fitzpatrick (1992b) and ask whether the abstraction of modern law is in fact its greatest myth. That is, generations of liberalism's critics have condemned it for putting a disembodied individual at the center of the legal universe-for excessive abstraction. …