Law, Justice, and Power: Between Reason and Will.

Vol. 15 No.1 (January 2005), pp.30-34

LAW, JUSTICE, AND POWER: BETWEEN REASON AND WILL, by Sinkwan Cheng (ed). Stanford: Stanford University Press, 2004. 296pp. Paper. $24.95. ISBN: 0804748918. Cloth. $60.00. ISBN: 0804748853.

Reviewed by Kyle L. Kreider, Department of Political Science, Wilkes University. Email: Kreider@wilkes.edu

In a world of increasing academic specialization, it becomes easier for scholars to lose focus of the contributions made by those who study the same phenomena but happen to be in other disciplines. While creating one’s own academic niche has its value and place, an understanding and appreciation of competing perspectives is always warranted. LAW, JUSTICE, AND POWER broadens our understanding of these concepts by bringing together leading scholars – from multiple countries and disciplines – to tackle six different topics relating to law, justice, and power. The six topics of discussion include “the (im-)possibility of (trans-)national justice in the ‘New World Order’” (p.11), the spread of western law through colonialization, justice within a pluralistic country, new ways (i.e., non-Enlightenment) of conceptualizing justice, “poststructuralist assessments” of justice, and, finally, a call to “think anew of the relationship between law and justice” through the “insights of psychoanalysis” (p.16).

Faced with the possibility of confusion deriving from eclectic perspectives in the collection, Sinkwan Cheng does a superb job, at the outset, of summarizing and explaining the major concepts and issues to be addressed in the remainder of the book. If not for the well-written “Introduction” (“Law, Justice, and Power in the Global Age”), which is used to frame the issues and explain how the essays correspond to those issues, it is easy to imagine the contributions of the volume not reaching their full potential. The particular value of the “Introduction” is in the explanation of the problem, the reasons for adopting an international and interdisciplinary approach, as well as defining the basic terms. Unfortunately, though Cheng makes a strong case for an interdisciplinary approach to law and attempts to place all the essays in a useful context, I am afraid she might fall short in convincing the reader as to why they should value the interdisciplinary approach beyond the “Part(s)” they find interesting. In other words, beyond the “Introduction” and the “Part(s)” the reader finds intriguing, she may not be persuaded to read other sections of the book.

According to Cheng, “[a]s globalization brings people of different races, classes, and genders into close proximity in a system of intense competition, the conflicts of interest escalate” (p.1). All the local and international problems that arise from globalization need to be addressed on “[their] own terms” (p.2). Increased globalization requires that injustice be addressed on a transnational perspective. Furthermore, the interdisciplinary approach is necessary since “law” is not merely something passed by legislatures and placed on the [*31] books to be objectively applied but rather is something “associated with the popular will in modernity” which finds its way in “every aspect of culture and daily life” (p.2). In other words, law must be analyzed not just by legal scholars but by those who study every area that law manifests itself. By looking at law this way, we see law, justice, and power in areas of the mind (psychoanalysis), linguistics (literature, philosophy), politics (political science), society (sociology) and action (political activism). Because law is “everywhere,” it only makes sense to study it from as many perspectives as possible.

Cheng then defines and draws connections between the major concepts – law, justice, power, reason, and will, establishing a rich foundation on which the individual authors are to build. Absent utilitarians and Marxists, most would subscribe to the notion that law upholds (or should uphold) justice. Justice is either the standard behind the law (natural law) or is found in the law itself (legal positivists). While the relationship between law and justice is relatively straightforward, the application of law – law in action – poses more difficulties. “Law in action” is “power,” and because power can be used for either benevolent or malevolent purposes, it is a reflection on law and justice. If the law is applied with a degree of rationality, there is said to be a nexus between law and reason. The particular problems with law and globalization arise when we consider law’s relationship to the popular will. If law is “the expression of the popular will” which provides “the legitimate foundation for the nation-state,” what happens when there is foreign intervention into state affairs? If the above definitions are correct, Cheng points out, globalization tears the thread that held together state sovereignty, popular will, freedom, autonomy, and justice. “Will” also complicates law if the Romans were correct in asserting that “law and justice are always inflected by particular interests and the will to domination” (p.8). If this is true, law as transparent rationality is seriously undermined.

The first set of essays, Part I, “The ‘New World Order’ Between State Sovereignty and Human Rights,” examines whether our desire for some form of “international justice” can be met. In his essay, philosopher and psychoanalyst Slovoj Žižek asks us to rethink the “universal human rights” claims made to justify NATO’s intervention into Kosovo in the late-1990s. While tempting to think of the West’s intervention in Kosovo as a “good vs. evil” moral play, Žižek beckons the reader to see the military intervention as “complicitous with global capitalism” (p.12) and to envision new ways “to fight the capitalist New World Order” (p.44). For the author, constructing a viable “Second Way” to counterbalance capitalism with a human face – the Third Way – is our only hope. Noting the existence of “Legal Univeralism,” Martti Koskenniemi, reserves his criticism for the nebulous universality of justice. Specific actions – like NATO’s attack on Kosovo in 1999 – are often justified by universal moral claims that others, quite frankly, do not see. While international law is a forum in which nations can debate morality, hoping it leads to justice, claims must be made not based on personal feelings but on a “preexisting normative structure” (p.63). Rounding [*32] out Part I, and switching the discussion from military intervention to refugees, Maggie O’Neill lays out a compelling narrative of the experiences of Bosnian refugees (and asylum seekers) in Great Britain, their value to indigenous populations, and how the academy’s research can assist in “operationaliz[ing] their voices through participatory action research” (p.89). While Milosovic and Kosovo have been replaced on the front pages of our nation’s newspapers with Saddam Hussein and Iraq, the principles and theory found in this section are extremely valuable to anyone interested in the recurring issues in international law.

New knowledge is used to assess the old issue of law and colonialism in Part II. Using Kant’s “Deportation of Justice,” Peter Fenves maintains that the West’s legal development was predicated on possessing colonies that were immune from the fatherland’s legal system but were still under the executive’s control. Adopting a Lacanian psychoanalytical approach, Sinkwan Cheng investigates how Indian men and women protested British colonialism, in general, and how they responded to the charge of sexual assault made by a British woman against a Muslim medical doctor, as found in E.M. Forster’s A PASSAGE TO INDIA. While the men protested by withholding their labor, the Mohammedan women went on a hunger strike. While the labor strike by the men was in accordance with Western thought that a person is her/his possessions (labor, in this case), the women were applying a “psychoanalytic law of desire” (p.117). The women’s hunger strikes were more compelling, Cheng argues, because the women “view[ed] their bodies not as legal possessions but as an integral whole with moral values” (p.118). In short, Cheng calls on the reader to rethink notions of law.

Part III, “Legal Pluralism and Beyond,” is likely to strike the reader as the most familiar. Nancy Fraser ponders the prospects for creating social justice based on a “politics of recognition” and redistribution. According to Fraser, these two forms of justice can both exist, thereby “avoiding philosophical schizophrenia.” While some have argued for “recognition” of different groups (based on distinctive identities), Fraser sees “recognition” as bringing the marginalized groups to a position of “full partner[ship] in social interaction” (p.142). In other words, “all (adult) members of society” will “interact with one another as peers” (p.142). Fraser’s contribution is in noting that the ethics of redistribution should only be addressed after the politics of recognition is brought to fruition. John Brigham’s essay, “Rethinking the Quotidian,” is an excellent explication on “constitutive law” – showing that law is not just in “high places” but everywhere we turn. The constitutive perspective of law, in the words of Brigham, “points to the nine-tenths of the iceberg” that we do not see but explain “the one-tenth part, the tip that is most commonly associated with law” (p.170). This underutilized perspective of law is well explained by Brigham and would benefit those interested in “law and society” issues.

Deep thinkers would find the most solace in Part IV, “New Ethical and Philosophical Turns in Legal Theory.” The four essays “explore new ways of going beyond Enlightenment notions of law, justice, and power” (p.14). The [*33] first two pieces, by Ernesto Laclau and Robert Gibbs, address the philosophical relationships between ethics, norms, and law. In “Law and the Domains of Death,” Peter Fitzpatrick addresses the finality of law in death sentences, as well as law’s responsibility to “get it right” because death is irreversible. The death penalty illuminates fundamental issues of law since law must respond (though it is necessary that law should not respond) to particular cases of injustice. Alan Badiou, in “Justice and Truth,” anchors Part IV by presenting a thoughtful redefinition of justice. Justice cannot be defined because “equality is not an objective of action; it is an axiom of it” (p.225). Therefore, justice is the attempt “to seize the egalitarian axiom inherent in a veritable political sequence” (p.225).

The remaining three essays compose the final two sections. J. Hillis Miller reviews Walter Benjamin’s Zur Kritik der Gewalt (“Critique of Violence”) and the role of Schicksal (fate) in law. To Miller, fate can help explain the incommensurability between justice, law, and power. Juliet Flower MacCannell, in “Rousseau and Law: Monstrous Logic,” presents a well-written account of Rousseau’s contribution to law. Simply stated, Rousseau’s contribution is recognizing that law must not attempt to shape human character but recognize that men are already socially bounded and to realize that law is not an instituting of order (attempting to accomplish certain ends) but, rather, freedom to act in a world of equality. Julia Kristeva concludes the book (Part VI: Psychoanalysis: Justice Outside the “Limits” of Law) with her essay, “Beyond the Dialectic of Law and Transgression: Forgiveness and Promise,” in which she encourages the reader, using Hannah Arendt’s political philosophy, to view forgiveness and promise as related to law. Forgiveness liberates the victim from the chains of the past, whereas promise (through legislation and the mutual promise to act together) “delivers human beings from the sense of insecurity that goads them to acts of domination.”

The target audience for LAW, JUSTICE, AND POWER is clearly graduate students and professors who study law – at least in all its theoretical manifestations. Though the reviewer embraces the necessity to analyze issues from a multitude of disciplinary perspectives, I was left wondering whether those who study law and society or philosophy of law would invest the time and effort in such a book—the benefit, of course, being to expand their perspectives on the philosophy of law—when the costs seem high (so little time, so many books). For various reasons (one of which is that the “Introduction” lacks a compelling argument for why one should read the entire collection), the value of the book, as a whole, tends to be lost in the value of the individual essays. Those interested in international law will read Part I; colonialism, Part II; modern political thinking, Part III; postmodernism and law, Parts IV and V; and psychoanalytical perspectives, Part VI. With those considerations aside, this volume undoubtedly contributes to our theoretical understanding of law, justice, and power and prompts the reader to reconsider notions of what law is all about. [*34]

REFERENCES:

Forster, E. M. 1924/1984. A PASSAGE TO INDIA (Reprint). San Diego: Harcourt Brace.

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