Social Science and the Displacement of Law
Goodrich, Peter, Law & Society Review
W. T. Murphy, The Oldest Social Science? Configurations of Law and Modernity. New York: Oxford University Press, 1997. xii + 269 pp. $60.00. In one of his lesser known fictions, "Utopia of a Tired Man," Borges (1982) depicted the paradoxical image of a distant and sparsely populated society in which individuals could choose the time of their death. If one could live as long as one wished, then the moment of death was not to be determined by political, economic, medical, or legal considerations but rather according to the satisfaction or accomplishment of one's desires. Once individuals had fulfilled their projects, usually the practice of one of the arts, or philosophy, or mathematics, they would grow tired of life and choose to die: "When he wants to, he kills himself. Man is master of his life. He is also master of his death" (Borges 1982:68).
One interesting feature of "Utopia of a Tired Man" is the collective context of the sovereign individualism that allowed the subject a power of life and death over self. The utopian society was preceded by a period of breakdown in industrial urban culture and by the gradual disappearance of "collective ghosts" such as nation and city. Most particularly, social interest in political culture waned: "They called elections, declared wars, collected taxes, confiscated fortunes, ordered arrests, and tried to impose censorship, but nobody on earth obeyed them" (Borges 1982:69). As political ennui set in, the media began to stop following and photographing the activities of leaders, and equally ceased reporting the deeds and determinations of political bodies. In consequence, over a period of several hundred years, the political system died out by virtue of a complete lack of public interest in what it was saying and doing. Neither knowing nor caring about political events, individuals increasingly focused their attention on questions of lifestyle and the art of living and of dying. The culture of politics was displaced by a dispersed aesthetics of the everyday.
In a book of formidable learning and remarkable scope, Tim Murphy has addressed the long-term history or longue duree of law in Western society and has traced a comparable displacement of the role and function of law. Drawing heavily on the work of Foucault and the concept of the episteme, which term refers here to the way in which society knows itself and in consequence governs itself, Murphy argues that a dramatic shift has occurred in the form and logic of government.l In a series of detailed theoretical studies, he argues persuasively that law is increasingly marginal to the methods by means of which science apprehends and regulates society. It follows, in this view, that law as a form of knowing is no longer central to the exercise of power or governance of the social. If legal knowledge, based on experience and addressed to the ethical individual and to her rights and duties, or his innocence and guilt, no longer accurately reflects the modern bureaucratic state, its technologies of rule, and its systems of calculative governance, then new forms of analysis need to be developed. In short, law has been displaced as the paradigm of modernity, and its future is correspondingly fragmentary and uncertain.
The consequences of this broad argument as to the "escape from law" (Murphy, pp. 122-23) are initially spelled out in negative terms. The loss of the legal vision of sociality reflects the death of the classical model of law, "and the effect of this transformation is to leave law and its seemingly foundational role in instituting the relation between ruler and ruled in an obscure place.... Should we not let go of our memories? Should we not allow ourselves to be open to the future, and learn to live without the fantasy of security and paternity which the older vision" held out to us? (p. 34). In answer to these rhetorical questions, Murphy suggests a variety of means of coming to terms with the new positivities of the modern social sciences and the "anguish of the split between the individual and the statistical" (p. …