An effective and affective history of colonial law

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

How can we situate present-day legal thought in relation to its history, and what is the place of historical analysis in critical engagements with contemporary legal thought? Concerns about the relation between legal past and present in history and theory have gained new urgency for the future of legal criticism. Commentators in both history and law have, of late, pointedly questioned emphases on historical disjuncture and contingency as effective points of departure for critique. They wonder whether such focus on historical discontinuity and the instability of meaning has obscured politically trenchant, structural analyses of law (Tomlins 2013; Desautels-Stein 2015; Sewell 2005). Paradoxical as it may seem, critical evaluations of contemporary legal thought frequently invoke history and historical analysis. In this chapter, I contribute to this discussion of how to critically historicize present-day legal consciousness from a temporally, geographically, and conceptually decentered vantage, namely the “unconscious” history of colonial law. A helpful guide to tracing contemporary formations of legal thought in relation to past ones, Duncan Kennedy’s essay on the “Three Globalizations” of law serves as a crucial touchstone. Informed by (post)structuralist method, the essay focuses on the deep structures that underlay three successive moments of globalization: Classical Legal Thought (CLT), the Social, and this volume’s point of departure, the “Contemporary.” Kennedy traces in each instance the contours of “consciousness, understood as a vocabulary of concepts and typical arguments, as a langue,” while also attending to specific articulations of that consciousness, which are understood, following Saussure, as a kind of parole. The essay poses an implicit question of how to understand the relationship between overarching theoretical structures and their contingent and practical articulation. This question animates the critical ambition of Kennedy’s work. In mapping both the underlying structure of “contemporary legal thought” and its internal incoherencies, he aims to unsettle its global economic and legal hegemony by turning to marginal sites of contestation (Kennedy 2006: 24). Understanding the historical as well as contemporary relationship between center and periphery in the “globalization” of legal consciousness is central to Kennedy’s project. In his account, colonial law was a crucial vehicle for local articulations of “global” legal consciousness, especially in its “classical” iteration.

Original languageEnglish (US)
Title of host publicationSearching for Contemporary Legal Thought
PublisherCambridge University Press
Pages238-255
Number of pages18
ISBN (Electronic)9781316584361
ISBN (Print)9781107150676
DOIs
StatePublished - Jan 1 2017

All Science Journal Classification (ASJC) codes

  • Social Sciences(all)

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