Focus III: Two Novel Methods

Two methodological innovations should be tested and developed further. First, the analytic of struggles is a way to give definite direction to legal research. The analytic of struggles provides elementary framing-devices to make problems of the law, enmeshed in society’s power-relations, visible and analysable in a robust way. Secondly, strategic filtering of rational reconstructions is a method of uncovering the game of power that goes on in case files in the form of legal reasoning. 

Method I: Analytic of legal struggles

What may be called the ‘underside of the law’ is its agonistic subtext of disagreements, confrontations and contradictions. To be able to address that region of the law, it needs to be constituted as something researchable. A specific analytic of legal struggles is required, which makes the legal conditions of moral struggle emerge as distinctive research objects.  Analytic of struggles is not an abstract theory of law, but a perspective for legal investigation: its worth should be proved in proximity to practice and through research on different substantive branches of law. The analytic of struggles breaks any set of legal research materials into three dimensions: struggles of individuals, of regimes and of lawyers.

– In the dimension of individuals, the law will be seen as entering into the tactics of actors as their means of moral struggle. Actors are individuals placed in critical confrontation situations: one’s particular form of life is threatened. A need emerges to struggle, not only for one’s particular life-form, but also for one’s recognition as unique ethical subject.

– In the dimension of regimes, social sub-systems compete in the field of law. Contradictions between these sets of social structure exist in the background of moral struggles. They take visible form as collisions between the behavioural expectations (social roles) borne by the different social-structural regimes (economic system of production, family system of love, political system of power, religious system of values, and so on).

– In the dimension of lawyers, the law should be capable of reproducing its conditions of existence through an employment of its own resources (autopoiesis). The law subsists on struggles of individuals enacting and employing those resources. Providing for such use of itself as a language resource, the law calls for individuals to maintain their capacity for making the difference between right and wrong.

Any legal case is an event where all these types of struggle occur at the same time and through the same material actions. The purpose of the analytic is to help taking apart from each other and discerning the different dimensions of struggle pertaining to legal practice.

Method II: strategic filtering

Another novel method of legal analysis may be called strategic filtering of rational reconstructions. In social science, rational reconstructions are discoveries of such tacit conceptions and principles of a practice that appear to be immanent to that practice as its unavoidable premises. Subsequently, these premises may be worked out into reflexive standards of criticism of the practice and thus fed back to the practice as its own rationality.[i] Engaging this way with practice, researchers should try to convince practitioners that fundamental norms are fully contained by the reality of practice. They are its necessary raison d’être. For example, if states are fighting the injustice of terrorism with their own injustice, say, by torturing a terrorist suspect, this would defeat their own case of legitimacy.

In a strategic framework, such reflexive arguments are to be viewed as pragmatic arguments. Rational reconstructions are used strategically in practical action.[ii] Enacting and employing the legal language of struggles, an actor may resort to rational reconstructions as more cogent reasons than others. Structures of the legal field are receptacles of such reconstructions, but in order to realize they must become parts of the tactic of individuals: arguments and counterarguments. Research that employs the analytical device of strategic filter does not aim at uncovering the tacit self-understanding of a practice, but the strategic game of reconstruction of self-understandings. As an argument, the rational reconstruction of what belongs to the nature of a practice – for example, ‘in war and love there are no rules’ – places a particular point of contention in some definite frames (love, war). It is about tinging a portrayal with a tone.

Tones that guide rational reconstruction in the sphere of law come notably from spheres other than the law. They may stem from and express behavioural expectations (social roles) pertaining to a particular sphere of life. These are subjectivities, subject-structuring structures, imposed on individuals by systems and regimes that prevail in the society. For examples, we may speak of the roles of a parent, worker and the citizen, which are embedded in the social structure of a family, a workplace and the political society. Insofar as the law is to be seen as generator of moral resilience, one should explore the means and ways it hands out for individuals to counter these imposed roles. 

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[i] Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge: Polity Press 1996; and ‘Discourse Ethics: Notes on a Program of Philosophical Justification’, in Habermas: Moral Consciousness and Communicative Action. Cambridge, UK: Polity Press 1992, 43–115.

[ii] For a radical view, see Emilios Christodoulidis, ‘Strategies of Rupture’ in Law and Critique 20(3) 2009, 3–26.