chapter  9
Law, ethics and socio-history: the case of freedom
Pages 21

What does the ‘socio’ in socio-legal studies mean, and what does it do? No doubt, it means different things to different people, and to some it is simply a portmanteau term. For many, it indicates a relationship between law and society, either narrowly in terms of empirical and pragmatic questions as to the impact of law and legal reform, or, more broadly, in theoretical terms as to how we understand both the nature of law and the relationship between legal forms and institutions and social relations. My work has been in the latter area, where one might expect the nature of the socio to have come under close scrutiny. I am not aware that it has, but it is an interesting and challenging question to think about what it denotes. In this chapter, I am interested in the relationship between the socio and

something else, the ‘ethical’, and for two reasons. The first is that I wish to argue that an ethical understanding lies at the core of the socio, and is not separable from it. This is despite the fact that the socio has generally been conceived as a problematic that, through its modernist commitments, is distinct from and superior to ethical enquiry. In my view, the socio has to be understood not as a master-perspective, but as an approach that participates in a deeper understanding of law and society, one that has often not been properly comprehended, as constellating socio-historical and ethical commitments. The second reason is that it seems to me that the socio is nonetheless absolutely

crucial to an understanding of the particular ethical commitments that animate our understanding of law. When we look at legal studies, we see a variety of such

commitments on display. From an orthodox standpoint, the main position is generally Kantian in a broad sense. By this I mean that there is support for the forms of law as mechanisms for supporting a liberal society in which individual commitments to agency and responsibility lie at the core. The politically important idea of the rule of law essentially entails such commitments notwithstanding the plurality of variations on a theme – individualist, communitarian, perfectionist and non-perfectionist – it invokes. From a critical standpoint, a variety of theorists have proposed that these ideas

of individual liberty, agency, responsibility are barren, or worse that they are the means by which the master’s work of enslavement is carried out. Here, one could include theorists such as Foucault, Agamben, Derrida, Adorno, as well as postcolonial and some branches of Marxist theory. On both sides, however, these arguments seem to me to be one-sided. Liberal theory does not appreciate the historical and socio-political commitments it masks, whilst critical theory too quickly denies the ethical validity in liberalism, and law. We do not seem capable of grasping in a nuanced and complex way how

juridical ideas of freedom both have a first order normative import and are complicit in hiding power. The key to a more subtle approach is to see how such ideas are historically shaped and ‘thrown’, yet retain something of their axiological (i.e. their ethically compelling) validity. So the second argument I wish to make here is that an understanding of the socio is crucial to an understanding of modern ethical approaches to law. The socio and the ethical thus have a relationship of mutual entailment, and cannot properly be separated. The ethical lies at the heart of the socio, and the socio informs and structures actually existing ethics. This essay is tentative and exploratory. It seeks to identify a big picture and to

travel in directions that modern-day legal, philosophical and, indeed, critical minds are unused to exploring. The direction of the argument is as follows. In the next section, I argue (briefly) that the ethical dimension that is immanent in sociolegal enquiry has been blocked since a 19th century ‘pact’ struck between Kantian philosophy and an emergent social science, and this needs to be unblocked. I argue that despite its emphasis on ethics, post structural philosophy is also implicated, by way of inversion, in this block. The third section argues, on the basis of modern legal issues, that the ethical dimension is intrinsic to understanding what is at stake in law, even from the point of view of a socio-legal approach. It has the form of an immanent critique of what the socio-legal lacks. The fourth section then considers what an ethical axiology of and for human being might look like, focusing on concepts of freedom and solidarity. On this basis, the argument then goes in two opposing directions. In a fifth

section, I go back to the socio-legal issues explored in the second section and show how an ethics of freedom and solidarity illuminates them. I show how an ethical dimension is crucial to a full understanding, including a sociohistorical understanding, of legal phenomena. The socio-legal connotes the ethical, and is impoverished without it. This answers my first question above: what is the socio?