Introduction: Politics, ethics and the legality of the contingent
Contingency is the condition of legal judgment and the limit of its reason. While contingency may be subject to laws it must also always escape legality. The contingent is particular: it is accident or change, it is experience or pathos and its reason is finite, mutable and only ever probable. The legality of the contingent, of justice or ‘lesbian rule’ (Lambard 1591), with which this work is concerned, is a legality that is tied on the one hand to the local and the particular, to the specific geography, institutions, disciplines, categories and reasons of common law, and on the other to the unique person who comes before the law. The focus of this study upon the legality of the contingent is also in part an attempt to formulate a philosophy of critical legal studies that recognizes the history and current political situation of critique in law. This entails not least a recognition of the role or complicity of critical legal scholarship in the reproduction of the legal institution and the transmission of legal doctrine, including the doctrine of critique. It involves further the formulation of a response to the context of what may be termed broadly postmodern jurisprudence. The contemporary contingency of legality is aligned to the prolonged collapse of certain specific beliefs in a positivized and closed world of abstract legal rules. The demise of the various sciences of law and of their accompanying substrate of systemic concepts throws legal theory back into the life-
world or the experience of the legal institution. It propels the critical scholar towards conceptions and practices of justice and injustice, judgement and decision, ethic and affection, subjectivity, speech and the other specific ephemera of the profession or teaching of law. To respond to the legality of the contingent is to formulate an account of the amorphous, incidental, fluid and indefinable realms of justice and judgement, carriage and miscarriage, politic and ethic of common law. This project is predicated upon a theoretical and political radicalism that returns to the specific histories and disciplines of common law and interrogates them in the strange-sounding name of justice.