Murphy, W. Timothy, The Oldest Social Science? – Configurations of Law and Modernity, Oxford: Clarendon Press, 1997, pp. 1-36, 186-220.
Introduction
The selected monography by a young Scholar in Jurisprudence and Social Theory has been inserted into the “Oxford Socio-Legal Studies Series”, alongside with Roger Cotterell’s “Law’s Community” for instance and seems to show an unhidden eclecticism.
Historical Situation and Systematic Context
The author poses questions about the place and function of law in modern society. He goes on to also consider what implications there might be for any future role for law. This book looks critically at some of the underlying assumptions which shape our current understanding of the role and purpose of law and society. Hereby the long-term perspective of law within western civilization is addressed.
Content, Abstracts
The author primarily takes issue with the general assumption that law is the solution to the problems of society. Instead, he presents in this book an argument that conventional ways of thinking about law in society, which he suggests are framed by hierarchical assumptions, need to be revised to give greater emphasis to what he thinks of as “horizontal or parallel relations”. Some of the implications of this alternative view are addressed.
It focuses on adjudication as a social practice and as a set of governmental techniques. From this vantage point, it explores how the relationship between law, government and society has changed in the course of history in significant ways. At the core of the argument is the elaboration of the notion of ‘adjudicative government.’ From this perspective it is argued that the relationship between law and society must be conceived in a different way in the era of economics, sociology and statistics. The impact of these disciplines both constitutes ‘modernity’ and unfolds a different role for the law. The author argues that the traditional vision of the role of law, rooted in a complex set of hierarchical assumptions, is no longer adequate.
In the first of the selected part of text the starting point is law as the one and single measure (Nomos) for all specific cases it should be adopted or applicated, leading to the presumption of the sovereignty of legal order. “What is the nature of law? By this question I do not mean to ask in what its validity or justification lies. I am interested rather in its modes of application, in its presuppositions as it moves into action, and in, as it does, so, what it claims to know about the targets of its Operations. All these ‘its’ are, of course, problematic. In many respects my resort to this usage is no more than a convenient rhetoric, a discursive economy to permit much ground to be covered relatively briefly.” In the following argumentation the author confronts interiority and subjectivity to externality and objectivity. The many insights cannot however compensate the focus on merely ontological questions and the lack of the practical, pragmatic and applicational dimensions. “The penetrative scheme is no more or less than a fantasy, a chimera. At the same time, it is ‘effective’ as long as it affords a compelling vehicle for problematization of the ills of the world or of existence, as long as it can generate from within itself recipes and remedies, means of intervention, techniques of governance and the means of conducting humanity towards its future and its destiny. Such a means was found in what is termed here adjudicative government. Though the origins of this are again diffuse, the key point to note is the elective affinity (here, the term is apposite) between the penetrative scheme of ruler and ruled and a mode of government which comes to privilege the soul, and which is based on the divide between the inner and the outer”.
In the second of the extracted parts of text legal individualism is explored and localised within the ethical space. “The argument is that there was indeed at some time in the past a
special affinity between law and society in the sense that the categories of society were legal categories and that the categories of law were therefore social categories. There was not for many purposes a distinction between the two, and therefore the kinds of problems of translation between the two which exist today did not exist in their modern form.’ In this sense law was the oldest social science and a rich – though not the only – reservoir for the language of politics. Even the question of form and substance within this traditional scheme is a distinction which appears within law and society simultaneously and in the same shape”.
Conclusions, Insights, Evidence
Starting from insights provided by Friedrich Nietzsche, Niklas Luhmann, Michel Foucault and Pierre Legendre the author holds that law is both epistemically and practically irrelevant to the modern positivities of science and government, and to the techniques of management through which their knowledge are applied. From that derived a general decline of law that has mainly been based on Jewish and Christian foundations and has therefore never been a science, but rather an object of faith with inclinations to ceremony and mystery. More over a shift from adjudication to autopoiesis can be identified. In consequence law escapes the analytical frame of sociology in the tradition of Max Weber. Law is to be located within society and no longer serves as an instrument to shape social structures. The systematic character of legal order – simply taken as the outlook of the scientific character of law – becomes fiction and cannot been held any longer. Salutary correction to the adjunctive model of social governance.
Philosophical Valuation and Jurisprudential Significance
In a book review, Peter Goodrich has payed extensive attention to the comprehensive study undertaken by Timothy Murphy. After having addressed the deficiencies of the analytical scheme, the main merits are put forward in a language that is somewhat easier to understand: “At the level of ideology law clings to its antique function of structuring the social order and providing the language within civic and national governance is effected. The dogma of law persists and so too does its social visibility, even though its role in reality is now to follow events rather than to mould them. The paradox of this somberly scientific depiction of the new social order lies in the fast that whatever the actual role of law in the strategies of governance, the legal order persists and indeed gains in cultural importance and status at the same time as its epistemic significance is eclipsed. Law is displaced by a myriad of laws, the legal system by ever expanding normative subsystems. At the same time that the classical model of law disappears, the plurality of laws forces the legal model of governance into the center of the social stage. It is this irony of the autopoietic project that is most interesting and most open to criticism. It suggests a certain ambiguity or uncertainty to the (religious) metaphor of systems. It could also be argued that the concept of law as a system tends to lead the autopoietic theorist back to a somewhat uncritical acceptance of the notion of law as a system – albeit a subsystem amongst others – rather than as a plurality. The tendency to portray the legal system as marginal to the analysis or apprehension of the social could in the end be no more than a reflection of a theory that clings to an antiquated and dogmatic conception of law”.
Selected Works of the Same Author
W. Timothy Murphy: Reason and Society – The Science of Society and the Sciences of Man: Durkheim and Weber, in: Reason and History – Or Only a History of Reason? Ed. Philipp Windsor, Leicester: Leicester University Press, 1989, p. 56-88; Idem: Reference Without Reality – A Comment on a Commentary on Codifications of Practice, in: Law and Critique, vol. 1 (1990), p. 61-80; Idem: The Oldest Social Science – The Epistemic Properties of the Common Law Tradition, in: Modern Law Review, vol. 54 (1991), p. 182-215; Idem (together with Simon Roberts): Understanding Property Law, Oxford: Clarendon Press, 2. Ed. 1996.
For Further Reading
Peter Goodrich: Social Science and the Displacement of Law, in: Law & Society Review, vol. 32 (1998), No. 2, pp. 473-492;
Peter Wagner: Book Review of: W. Timothy Murphy, The Oldest Social Science, in: Social and Legal Studies, London: SAGE-Publications, vol. 8 (1999), No. 2, p. 297-299.