The Dedifferentiation Problem

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LAW 328 Green Legal Theory

Schlag is a bit of a bête noire of the legal academy, reacting against the idea that law is something handed down from the mountain by judges, lawyers, legislators.

Notes

we are no longer able to distinguish law from culture, or society, or the market, or politics or anything

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no longer in a position to articulate any relations between these various terms at all.

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If you can think about something which is attached to something else without thinking about what it is attached to, then you have what is called a legal mind.

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To recognize that law has meaning-making power, then, is to see that social practices are not logically separable from the laws that shape them—that social practices are unintelligible apart from the legal norms that give rise to them.

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the dedifferentiation problem: Identities previously thought separate and distinct (e.g. law and culture) turn out to be inextricably intertwined

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there is nothing to be said about the relations between the two identities because we were never entitled to separate them out in the first place.

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we are more or less caught within ‘‘reifying’’ and ‘‘de-reifying’’ tendencies that produce both the sense of differentiation and dedifferentiation.

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reciprocal determination

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What matters here is not the considerable differences in these distinctions, but rather their structural or formal similarity.

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the relations between law and the social are mutable. They are not fixed. And presumably, neither are the identities marked out by law and the social.

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we might expect all three original identities—the law, the social, and their relations—to change.

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If the relations between A and B are dynamic, interactive, and dialectical, then we have no reason to suppose that A and B will retain any sort of conceptual or ontological integrity.

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I am not suggesting that just because a system is dynamic, interactive and dialectical, one cannot specify its permutations. I am, however, saying that if the only constraint on the system is that it is ‘‘dynamic, interactive, and dialectical’’ and the key identities (i.e. law and the social) are radically underdetermined in the first place, then we have introduced enough variability to produce a great deal of differentiation accompanied or followed by entropy—a lot of AB- ness. We have produced enough AB-ness that the A/B distinction and the cogency of the key identities (A and B) have lost traction.

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the point here is most assuredly not about logical necessity: It is about how we experience the playing out of the ‘‘dynamic, interactive, and dialectical’’ relations of law and the social.

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What authorizes us to distinguish the legal and the social in the first place? Why accept such a distinction? What are its referents? In fact, are there any referents—apart from the disciplinary frameworks that automatically reproduce such distinctions in order to get their research agenda off the ground?

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devastating implications for a wide number of conventional (and even critical) research agendas.

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academics are generally not keen on insights that scuttle the value of their disciplinary training and disable their research agendas.

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It’s one thing to recognize that the relations between law and the social are indeterminate, maddeningly elusive, mutable or extremely complex. That just produces a very challenging research agenda. It’s quite another to recognize that one’s key identities (law and the social) are ab initio non-referential.

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consider the identity of ‘‘employee.’’ As we will see, there is no legal idea of employee that does not incorporate the social identity of ‘‘employee.’’ Meanwhile there is no social idea of ‘‘employee’’ that does not incorporate the legal identity ‘‘employee.’’

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The important point is that whether we look at ‘‘employee’’ as a legal identity or a social identity—we unavoidably bring in the other. In other words, what we cannot do (at least not if we think about it) is to consider an employee either as a strictly legal identity or a strictly social identity.

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What would an employee be as a pure social identity—that is without resort to law or legal conceptions? We would be talking about an employee in something like a state of nature. There is no such thing.

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what meaning the legal identity of employee would be like apart from the importation of images of servitude, hierarchy, scarcity, wage compensation, and the like. 33 We would be trying to achieve an impossible ultra-formalism—formalism without any social referent at all.

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texts themselves are not law

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Lawyers are not the only ones who invoke and reproduce law.

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Legal reasoning is rooted in practical reason, induction, deduction, analogy—indeed all sorts of cognitive operations common to human beings generally.

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the institutions are not discrete

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certain physical sites. But, of course, law can be articulated and laid down quite apart from these physical manifestations.

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pedigree of law is anything but discrete—law stemming historically from religion, philosophy, tradition, custom, etc.

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error in moving from the supposition that we have effective and extant social differentiations (e.g., ‘‘the texts of law,’’ ‘‘the corps of lawyers’’) to a supposition that these particular differentiations are useful and cogent explanatory categories.

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error to unreflectively suppose that because we have an effective and extant differentiation in place that it frames a hermetic or even a discrete field for inquiry

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unreflectively transform effective and extant differentiations into the categories of explanation or understanding eclipses much of what we would like to understand or explain.

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the fact that disciplines such as law are marked out in acutely wrought differentiations says nothing about the status, validity or depth of the differentiations.

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consider the possibility that disciplines sustain themselves by avoiding learning anything that would disrupt their structural integrity.

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dedifferentiation might be a much more generalized phenomenon

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How should legal scholars, judges and legislators think about economic goods and economic value? Here the movement runs the other way. We find that whether or not something is an economic good or has economic value depends upon the extent to which a good and its value are or are not legally protected.

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they will hold to the extent that we blind ourselves to the ways in which they melt away. If we think hard about such distinctions, dedifferentiation happens. If we do not want dedifferentiation to happen, then the thing to do is to abandon it before dedifferentiation happens.

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as our intellectual agendas slide from ‘‘explanation’’ towards ‘‘art,’’ the dedifferentiation problem becomes less problematic.

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we can entertain seriously the idea that nothing is art and everything is art.

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speaking of ‘‘law’’ and ‘‘culture’’ as separate or distinct phenomena is inconsistent with their own intellectual commitments.

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those who are engaged in normative and political activities in law often base their advocacy on a claim to understand the situation they are dealing with. In other words, for most legal thinkers, the validity of advocacy rests on the validity of an understanding or even more strongly, an explanation of the situation they are addressing. Once one comes to recognize the onset of dedifferentiation, however, explanation and understanding are seriously compromised.

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To be engaged as a legal thinker or actor in a normative or political enterprise is in effect to become in part a kind of ‘‘social painter’’—with all the disturbing implications of that characterization.

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retreat radically from theoretical ambitions and find refuge in the particular, the concrete, the local.

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resulting work is so concrete, it has no generalizeable significance

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the research work itself quickly manifests a certain sameness—namely, the patterned, abstract, sameness of constantly exalting the particular, the concrete, the local. After a while, one can begin to wonder if one is moving beyond dedifferentiation or simply wallowing in it. Is it the cure or the symptom?

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We would simply have to recognize that when we are doing law and economics or social theory or politics, we are involved in a kind of artistic and aesthetic enterprise—one which paints into existence certain necessary identities. We understand that these identities are problematic, but they are useful to knowledge production and so we will just go on using them and go on adding to the storehouse of knowledge.

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not only does the law fail to compel outcomes (the old legal indeterminacy claims) but that we cannot even start the legal analysis coherently in the first place. We are lacking stable identities, and without those, we cannot even begin to articulate their relations.

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Apart from continued employment for academics, a steady run of conference and workshop invitations, and the warm regards of one’s Dean or Department Chair, what is the point?

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One can recognize that differentiation is an aesthetic enterprise—the apprehension and creation of identity, relations and distinctions. Differentiations—even in a discipline such as law—are not simply received, but collectively created and maintained.

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When we say we are ‘‘discovering the law’’ or that we are ‘‘bound by law,’’ we tend to forget that even as we follow such imperatives, we are simultaneously creating and re-creating a law capable of being discovered, a law capable of binding us.

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