It's a huge pleasure though each year to come together for the Genest lecture. And it really is a time both to mark the arrival of an important guest who is gonna help shape a number of discussions around the law school. Not just at today and in this talk but also a time to reflect on the Genest family and, and friends and their generosity in establishing the fund that allows these visits to happen.

And we are are really fortunate today to have Pierre Genest son and daughter-in-law, Paul and Barbara, with us. And it's something that we see as very much an ongoing relationship. And, and one that really becomes a family affair for us as a result. So especially on a, a day when, as we say, we separate the fair weather friends from the true aficionados at York University.

To have you guys up is, is quite special. I can also assure you that University is going to forge ahead and remain open and you know active for this talk. Afterwards I think the leadership got together and said, really what's going on that's worth it. Once Peter's spoken, so it may be the case that the University closes shortly after we're done.

I think around 2:30. But we are fine. And enjoying I guess the wintry splendor from a distance that we see out the windows. So the Pierre Genest Memorial Fund again, for those who aren't here every year, and don't have the opportunity to hear something about it. Was a fund established in honor of Pierre Genest.

It creates a global faculty of visitors who come, some do workshops for credit, some do a series of guest lectures. Some do mentorship with our graduate students and scholars. Some do combinations of all of those. And the themes typically involve Comparative law, Constitutional law. Something about Canada's Federal bijural, bilingual, bicultural, multicultural connections and traditions, and this creates a really vibrant linkage that is always timely.

And we had the good fortune over lunch a bit earlier to remind Peter of all the live debates that, you know, intersect with these topics going on in Canada right now. And of course the benefit from things that are happening elsewhere as part of our conversation is gonna be a clear goal of the the Genest program.

So Pierre Genest was one of the leading litigators in the country but, but really that's not why this fund was created. It was being that kind of renaissance lawyer who really did engage in intellectual, philosophical policy and political debates as much as the system of justice and the administration of justice.

Is what characterized Pierre Genest, and I think what inspired those who cared for him to come together to create this living and lasting legacy. So that's very much what brings us together. And what brings us today together is Peter Fitzpatrick, who has a series of titles that are hard to forget.

So he is the Anniversary Professor of Law at Birkbeck, in the University of London, as well as an honorary Professor of Law in the University of Kent. And to anyone who looks at questions in law and society about law as resistance, or the Foucauldian tradition. I've seen a legal analysis through a lens of broader dynamics of power, authority, freedom, liberty.

You will already have come across Peter's work and if you haven't there's a, a links to some his books, and scholarly contributions, that are, are easily available. We were hearing as well that sense of spawning a whole generation of people who look at law and society differently through many graduate supervisions and many connections to emerging scholars.

And Peter is that kind of mentor to people who again some end up in law schools. Some in great Law and Society departments like the one here at York. And it's great to see colleagues from across the university, not just the law school here today. But, it's fair to say that this is shaping a really important interdisciplinary and comparative set of debates.

So I won't go into other roles Peter's had as visiting lectures and in policy particularly in Papua New Guinea. We were just speaking about. But suffice it to say, there are important stories to be told, I'm sure from each of those stints. And we'll hear at least a slice of current thinking from Professor Fitzpatrick today.

So please join me in giving a warm Genest and Osgood welcome to our guest speaker.
>> well, thank you Mr. Dean, for that sustaining introduction. The sustaining lunch as well And well thank you for being here. I mean, and, and congratulations. If anything remotely like this happened in England I'd be talking to an empty empty hall.

[LAUGH] It, it's staggering. so.
>> We're Canadian.
>> Yes. I'm honored to be offering a lecture associated with Pierre Genest for the reasons that have just been given. And I'm also honored to have Barbara Jessup and Paul Genest in the in the audience and going on the range of Paul's academic engagements.

And achievements that might be more appropriate if he was up here, and I was down there. But I think I'm stuck with this one. And I'm honored to be back at Osgood actually. This is my fourth invitation to be here. I won't tell you how long it stretches back.

And I'd like to think that it was an example of the May West principle that you can't have too much of a good thing. But I suspect it's more a matter of, let's see if he gets it right this time, we'll give you one more go at it.

If that were the case, I came across this lovely bit of Becker the other day, and this could be the epigraph for it. Try again, fail again, fail better. [LAUGH] And if I don't fail better. It wouldn't be for the want of the wonderful support and concern that I've had from Jodianne Roe Butler and Professor, Ruth Buchanan.

Ruth is for me the the exemplary, I'm going to embarrass her now. the, the the exemplary academic with her abundant intellectual imagination and creative generosity. She also sort of got me into this mess, I believe. And she also bleakly gave me the concern, for, for this lecture because I was busily working on something that was quite arcane.

I think we were talking on the phone, and she indicated to me that I was good but still, you know, pretty well up there as far as along society goes, and I thought, oh my god. I better say something about law and society and resurrect an old interest, and see if I can relate it to what I've been doing since.

And that's what I've tried, that's what I've tried to do. More specifically I think we might ask whether, in late modernity there are perspectives that are emerging in philosophy, perhaps in particular. It might throw some light on and provide some rather intriguing powers beyond the concern of the, with the connection between law and philosophy.

But first of all, I just, a note on the title, Strange Gods. The more usual version where this would come from. In the decalogue, as I am the Lord, thy God, thou shalt have no other gods before me. But the version is no strange gods before me. And I hope you all appreciate why I prefer strange as, as we go along.

Okay, so something like an abstract for the talk could go something like this. The still burgeoning field of law and society presents us with still I think, two seemingly disparate notions of law. With one of them, law is the abject creature of society, if you like. Or of some social force that tends to dominate society and dominate law.

And economies usually, a leading contender. The other dimension has law assuming some kind of independence, some kind of autonomy. And being able itself to act upon society to, as the terminology so often has it, to shape society even in times to create society. So, what I want to say is an analysis of society and it's modern and late-modern.

terms, shows us the both of these meanings if you like, of law are there, and that they are strange to say I'm just pitching this too highly, I think but I've got to go on now, that's strange to say that, that they're compatible with each other. And that's, yeah, that's true, I think, yes, Bob's gonna try to argue.

But what I also wanna argue is to say that, that compatibility points us towards notions of sociality and relations between law and sociality that go beyond this, existing terms in which we engage with law and society. Now that, as an abstract, would be rather abstract, abstract and so I'll try and situate things rather more explicitly by looking at Foucault and the the lectures on the birth of bi-politics, which are quite remarkable, I think.

With the position that he places society in, in relation to what we could broadly call other social - other social forces. As you know, is too well known I suppose, these days, Foucault perceived notions of governmentality - he's horrible neologism - or bi politics the, ordering. The ruling in a sense, the tentacular ruling, of whole populations across the whole range tied integrally with notions, and this was his early work, with notions of discipline and so on.

You have a pervasive and a tentacular governing of whole populations. For Foucault society, as it were, serves that kind of function by being an instrumental adjunct if you like of that type of power. Just a quote from the the lectures on The Birth of Bio-Politics we're talking about an omnipresent government.

A government which nothing escapes. A government which conforms to the rules of right. Wait, that's an interesting reservation for now, but we'll come back to it. And a government which nevertheless respects a specificity of the economy. And a government that manages civil society, the nation society, the social.

But this management of civil society is not a complete domination because, he then goes on to say, that the very notion of civil society that enables this governable, govern another horrible word, governability of, of individuals. Also just completely trying to complete the picture, and, and moving on to to economy.

We find a similar seeming contradiction, well seeming contradiction, that the economy for Foucault is something in, in, in liberal and neo-liberal dispensations, which is what he's dealing with here. Is something that is uncontainable. It's treated as a kind of natural thing that's just there. And it can't be, and, and somewhat like governmentality it's range is, is limitable.

At the same time, and, and hence sorry, society again as civil society in particular, comes to the aid of notions of economy. Which given it's range can't be of course, encompassed by any notion of society or any determinant or limited notion at all. But then he goes on to say that society provides the field of reference with, within, which is made possible, in which there is a governing which combines governing economically and governing theoretically.

So we have a bit of a mess. But it, it's one I think where we have this fascinating conjunction and disjunction between these various elements say govmentality for bravery sake. An economy on the one side, and society on the other. Where society is both a kind of a subjective instrument of these forces and, because it is serving an illimitable boss if you like, that society itself has to be illimitable.

If, if it's going to perform that function, in a sense that very limit ability sets it apart as well, because it intern can't be contained in, in, in any terms that it's going. And hence even as a vacuity, even in its object state it provides these field of reference as he called it and these modes for these other things to operate.

Now this division in society, I mean I'll come back to that conglomerate later because I'll be relying on it as my kind of case, if you like. But this notion of society is I think fairly conventional actually, in some ways, but that doesn't mean to say that it's not right in some ways.

If we look at Raymond William's keywords and the wonderful, you know, abbreviated synoptic genealogies he has of various things there. If we look at society, he would say that and, and in a way which remarkably parallels Foucault's history of this actually. You know, people slate Foucault off routinely for his bad history but he seems to get it right on this occasion.

Raymond Williams sees society divided between what he calls an active and immediate sense. And society as in, a general and abstract sense. And on cue with Foucault, he notes that from the 18th century, the abstract and and, and general sense strengthens, as he puts it, until today we see that it's pervasively predominant.

And that it somehow subordinates the, the other sense. And in a sense almost displaces it as an operative factor. In a like way, LaForgue traces the emergence of modern societies, the existence of which can no longer rely on a transcendent reference beyond them, and finds in modernity a society that is self sufficient in being as he puts transparent to itself.

It's intelligible in itself. Then he makes a remarkable claim, which I think is spot on. He says an illusion which lies at the heart of modern society, he refers to this, namely that the institution of the social can account for itself. There are also many more straight in the social sciences, many more straight forward declamations.

Which pitch the scene on one side or the other. On one side of the divide, you have society comprehensively subordinated to some other force, usually usually economy and being the abject creation of this other force. On the other side of the divide, you have society as, in the, in the false terms, able to account for itself and rampantly creating, constructing, forming everything around it, including, including our very identities.

And notions of social constructionism. In, in, in sociology for example, would, would illustrate this. Now this leaves society, seemingly. Mired in, existential incoherence, and I'm suggesting, I'm more than suggesting, I'm saying, that, a resolution of a kind can be found if we go to nature. I want you to know it was a very responsible lunch.

Paul and I were discussing nature at that, at some, at some place. So nature, and nature is supremely sane madman in the death, in the gay science, where the madman enters the marketplace and announces to the uncomprehending moderns that god is, god is dead. He doesn't get exactly an engaged response.

And realizes that they do not realize that this has happened. It's an event, says Nietzsche, says the madman, says Nietzsche, that is still beyond us. It's still to come, it's still on it's way. And he asks, what in the hell, he doesn't quite say that, but what in the hell, you know, what, what we're going to do about this.

And he concludes that we're going to have to invent what he calls sacred games, or what he calls festivals of atonement. And I looked up atonement in my very old Etymological dictionary. And so I don't know whether they're still valid. It's rather lovely. You've got at, one, and meant.

In other words the return to a unity. So the festivals of atonement, to, you know to, we no longer have that unifying force of this transcendent reference is God. So we have to invent other sacred games. Or, or festival of atonement to restore our own unified, our own unified being, if you like.

Nietzsche's favorite sacred game, and this is in mainly, is the, is the state. The modern state. He calls it a new idol. And he compares it to the ordaining finger of God. And that, although irresponsibly doesn't footnote it, it is, it's from Exodus. The assumption as with society, has the state fusing the limitable, you know, this range of a limitable force in power that was characterized with with the deity and with transcendent reference.

Has it fusing it within the determinedly existence. So, that the modern nation, nation state. Providing the typical example for nature, is as so many people in sociology have noted, most often equated, and really confined in this determinate guise to the society of the nation, that's the paradigm that tends to be, that tends to be adopted.

And of course this drags in all sorts of notions like sovereignty and so on. The dragging in of the immensity, the encompassable, unencompassable immensity of the, of the sovereign claim, which is unlimited into a specific into a specific, specific locale. Whether you see it as the state or whether you see it as society.

Involves the drawing in of the transcendent to a determinant location. That inextricably ramps that location itself, up to a transcendent up to a transcendent domain. And the competence that both society and the state take on is a remarkably monotheistic kind. It's a very uncomfortable monotheism because these deific substitutes are not singular, there are several of them.

But so far I've just touched on, the nation state and the notion of society. This of course leaves a considerable problem for, for the model, because if you are going to adopt, and resort to some kind of transcendent reference, but you're supposed to be living in a secular world.

Now we'll talk a bit more about that in a minute. Then how do you reconcile those, those two things? Because secularism is not capable or rejects the the the notion of a transcendent, transcendent reference. What I'd like to suggest is that this is effected, or this is the next solution that comes on to the table, by something we could call a negative universal reference which goes to constitute an occidental modernity.

The reference in absorbing nature's infinite nothing, because that's what the madman sees, he see he's cast now into an infinite, nothing. Something which Haegel for example, had already perceived. That, in a sense by adopting a negative reference, avoids referring to some kind of unmodern, transcendent positivity. And I just want to say a bit more about that, before, but first of all I just want to slip in Heidegger's commentary on nature's parable, which situates this nicely, I think.

Heidegger puts it this way. Even if God has vanished from his place in the super sensory world, still the place itself is preserved although it has become empty. The empty place even invites it's own reoccupation, and calls for the god who disappeared from it to be replaced by another.

Hence I'm moving toward my strange gods gradually. Okay? So it's such another where the nation state or society becomes what certain alterities, certain others are not, or it becomes not what they are. The, I suppose in ways one could say the original instance of this in modernity is the invention of racism in the 18th century, late 18th century.

Where the claim to this negative reference, being universal has to reject the other against which is constituted utterly, completely. Because anything that's beyond the universal, can only be utterly, or completely beyond it. But at the same time, and this is the neatness of the beast. At the same time, the universal has to extend to, and incorporate in a sense, that which is as just rejected.

So, the, excluded are also I hope that's not urgent government business. The the excluded have also to be brought within the domain of, of the reference as well as excluded from it. So here we could turn briefly to Foucault governmentality, and buyer power, and disciplinary power as well.

A type of conjunction disciplinary power as he puts it, encompassing the very life of society, and the lives of it's members. And Foucault in a trajectory that emanated from racism and I take this mainly from his, society must be defended. He says racial division provided the first historical, and political discourse on society.

Don't know whether that's so really, but it suits me so I'm just going to stick with that for the time being anyway. The first historic and political discourse on society. But he brilliantly in that set of lectures merges that into his consideration of a bi power and disciplinary power and notions of the abnormal.

And the anomaly. And the way in which these types of scientistic operation of power in modern society, operate by way of negation. Although that's associated with his later work, he really did the same thing in folly, because he was saying there, we only know sanity through insanity. And he spends a very big book saying that.

And I know it's contested, but he then returns to that theme without linking it with insanity actually, and ties it into these disciplinary formations and, and, and into bi power. So the formative force of the socially normal. and, and the socially conforming looks to what is other to it.

It, it, it's a negative, negative reference. The abnormal in such as Foucault are both interior, and foreign, subjected as he says, to an inclusion through exclusion. Okay, now. All of that might seem to take matters no further than society simply being part of the conglomerative power map by Foucault.

Society as a functional extension of governmentality by powers of a functional extension of economy and, and so on. Yet as I tried to indicate, there's another society, if you like, lurking within that conglomerate which seems to take on, through it's very limitability in its functional role, some kind of independent existence otherwise.

That society itself also forms through a negative universal reference. This is something that's come up quite dramatically recently with work by the medievalists and the pe, people concerned with periodization who are saying, we've had enough of this Dark Middle Ages stuff and all the rest of it. Although, our Prime Minister in the UK has and every Prime Minister's question time, he managed to squeeze in a reference to the Dark Middle Ages.

By saying, if you actually look at these things, it was never anything like that. Feudalism was an invention of the 19th century, so on and so forth. It's much longer story, of course. But nonetheless, what's being traced here, is a formation of society as modern by way of rejection of what came before.

And encapsulation and the rejection of what came before, and by the rejection in a like mode of barbaric, or savage societies excluded from universalized civility. This is the supposed outcome in terms of the standard trajectories that we find of a progressive development of society. Most specifically as Frisbean and Sarah put it, the concrete development of the shell shaft market society, civil society, bourgeois society.

Only then, and this harks back to Raymond William's terminology. And only then did the generality society become visible. This generality coinciding with Williams' general and abstract sense. society, in terms of it's pervasive dominance over the active and immediate senses. And it's this negative universal reference that frees the abstract.

And the general from a positive type of constraints. So you can make a limitable claims to society along with the four of sovereign societies, international societies, without having the constrain of a positive reference, spoiling the fun and actively constricting you. So, this is supposed to be about Law and Society, okay.

So look. I'm going to do it. Law and Society one. This is the longer one. So looking, and I'm not too sure about this because I'm a bit out of date, but so, and this is why I'm here. I want to steal stuff and I want you to correct me.

Law is appropriated in this scheme, saying Foucault is conglomerate and all the rest of it, but it has a very specific prominence in the process. In the field of law and society, law is often conceived of as entirely dependent and, and, and some kind of entirely dependent offspring of society or and I've said earlier on some pervasive force.

And so much so that when certain types of society are seen to be rampant or predominant such as regulatory society, the administered world all rest of it. We find statements about the death of law. That somehow this scheme of things is incompatible with the existence of law. This is what Foucault gets saddled with wrongly, utterly wrongly.

The, the perversion of disciplinary society bi power, and so on, means that law no longer has any as it were autonomous or coherent function or being if it's own. Yet by way of partial release, relief a, a persistent strand would say this is that that the law had a relative autonomy, in relation to society.

That gets me pretty fashionable, I seem to remember. So it has some distinctness and, and efficacy even if not not a great deal. On the other hand, as it were there seems to be an imperative for society itself to generate an autonomy of law which is recognized in the literature.

So with the type of modern society inhabiting my argument here law arise at a position of quite differentiated autonomy. We're talking here about Foucault's concern in bi politics. With liberal or Neo-liberal society, where law provides the link between society's now desperate members. Some fairly famous instances of this, Donald Black.

In the midst of strangers, law reaches it's highest level or Stanley Diamond. The progress of law consists in the destruction of every national, natural tie in a continued process of separation and isolation. And there's actually one more statement which I threw out cuz I wasn't sure whether it was quite right but I think it is now.

Mutually, law is more reliable than all our forgetful loves, our tears so quickly dry. I think it's relevant to that as well. Okay. Also intriguingly, but again, this is harking way back, past Shecandas. In the 70s I guess when, when he was all the rage. Where you have the commodity form and the relation of the commodity form, actually requiring and forming law as a kind of independent entity.

So coming to the final pharoah then in this field of law and society. I've already applied a few. Laws established distinctness is heightened, or even as it remains formatively tied to society by remarkable little book. I think first came out in the 1970s, second edition about 20 years later.

And I don't think it really has had a lot of attention. It's had some. Towards responsive law, law in society in transition. Which is refreshingly brief and they certainly pack, pack a lot in. That's a toward, toward responsive law, law and society and transition. Now they adopt what they call a social science approach, it seems to be so, and they sketch what they call a development of free modalities of basic states of law in society.

One is law as a servant of repressive power. Two is law as a differentiated institution capable of taming repression, and protecting it's own integrity. Now I think for that they feel that law has to as it were defer in relation to the power it claims for itself, and adopt a fairly limited range of what it can, or sorry, not entirely.

But a fairly limited range of what it can, can't do. But finally, law as a facilitator of response, to social needs and aspirations. And what is most distinctive for them about this topology, and this is their ultimate concern, is a responsive legal order, more open to social influence, and more effective in dealing with social problems.

And I talk about Supreme Court in the United States doing that sort of thing these days and so on. They do say however, that the danger of this is by being too responsive and absorbing too much in, you run the risk of dissipation, of falling apart, and not being very, very effective.

So, you have to have some kind of solidity or stolidity. I think, however, that they do miss a rather important dimension about responsiveness here though. And I, I was reminded, and this is something I've inflicted on some of you yesterday, of, and that produces novel, The Leopard. Where at the time of the in Italy the the nephew of the very conservative count who is very much against the and the, and the liberal govermentality that that the Italians are wanting to adopt.

And he wants things to stay exactly the same. And says to him. He says well, if you want things to stay the same, everything is going to have to change. Which is beautiful because if you want to hold onto you know, something and keep it the same. Somewhat paradoxically you have to be able to adjust it continually to everything that would come to it and require it to be different.

So responsiveness is not just pure responsiveness. Responsiveness is also in some, in some way integrated with the imperative of continuity, determinacy and so on as well. So, it's a dynamic interaction. Now, they do recognize that in kind of schematic terms, because they do say. That all institutions establish a, a conflict between integrity and openness and they find a similar dilemma that occupies modern society sketched, that I sketched earlier.

The dilemma that's involved in law being somehow determinant, and the part and the law that responds to, to, to other, to other powers. But just to emphasize, just, seemingly going back on what I just said, this law, nonetheless, has to be utterly responsive, it has to be. Illimitable if it's going to serve, if you like it's very function, in crude terms, of serving an illimitable claim of society or sovereignty that in itself requires of it that it be illimitable as well and there has in conjunction with it to be a point apart from that illimitability.

Where it can be brought together in specific determinations that that we look to law to provide for us. So the disparity, between those seemingly disparity between those two things I'm saying matches the seeming disparity in the constitution of the social itself. The imperative to be both located in some determinate way, but utterly, illimitably responsive in this abstract and general sense that, that Williams also emphasizes.

My argument then would be, that what impels the relation between law and modern society, is the block that I referred to awhile ago now on societies being able to resort to some kind of positive determination. Without more. Because the resort to positive determination counteracts, or would reveal the reliance on the negative universal reference.

There are various ways this has got around but I am confining it obviously to the relation to law. Law in relation to society then, comes on to the scene to provide that positive determining, determinative reference which society itself cannot provide in an enforceable way. Because this would be to a certain transcendent capacity in a positive sense, and that of course is most un-modern.

So it's all coming together in a sense, around this question of the relation between law and society. That, society finds itself in a situation where it's constituted negatively absorbing natures infinite nothing. It finds itself in a situation where if it were a, a, I'm sorry, and, and then it adopts it, it gets around, that gets around it's actual resort to a transcendent reference.

A transcendent reference that comes from it's ilimitability it's dyadic sweep, if you like, in terms of the claims that it will make for itself. And the ability to bring that into a situated scene which ran society or that particular society up to a position of transcendence. You have a transcendent claim.

Based in negativity, law comes on the scene and provides the positive enforceable reference which helps, in a sense, society to get around that particular problem. It helps society to get around that particular problem because law itself does not assume any enduring positivity. As Blancher puts it, to law alone, pure transcendence.

Law continually vacates it's existing content, and assumes some other determinative some other determinative form. And here I'm not just talking about the the discrete, or the distinct legal decisions in the court room or so on, this whole tension is played out in the very question of whether you can have a legal system, for example.

The very question, you know, which has plagued jurisprudence, for ages, about the unity of law. Our variability to group law together into distinct field or distinct areas depends upon the, the, the decision we make, in a sense the formative decision we make in resolving that particular tension. And I think transnational law you know which is pretty big here, I see.

More or less fits that kind of scheme beautifully, because it manages to be a a community of communities of law, if you see what I mean. That the, incredibly diverse elements or. Signs of occupation if you like, that are th, th, th, that are the tran, transnational laws that are brought into force can somehow connect and disconnect without any kind of sovereign, affirmation.

That dynamic is within, is within law itself. Okay, now. That's the end of law and society one. One might then say that I haven't done anything more than refine the dependence of, law, if you like, on some kind of society and just presented it in another guise. So I'd be aligning Law of the Title Boden Society in saying, well, that's, that's what it now does.

But I now want to finally and all too briefly, I'm afraid, make a rather stronger claim for law in it's, in it's relation to society. And that is to say. A law that escapes what calls the already established, already stifling reign of society. And can be seen as congruent with society in a less constrained sense.

This might seem a bit perverse, but I'm going to Rousseau. to, to, to kick it off. In the, in the, the social contract, so I'm looking poorly now, should be saying that in another language anyway. I won't inflict my French on you. There's enough of that over lunch.

so, he makes a remarkable assertion. That law in a sense is exactly identifiable with society and in some sense precedes society because, he says. If we want to be what we are as a result of the social contract and make laws as a result of being in that social contract, being in society, being what he calls a people, and then some other location he calls a nation.

If you want to do that, we would already have to be like that, before we actually form the contract. Which doesn't sound very helpful, does it, anyway? He then says. He fills in that, the gap, he says, by positing what he calls a lawgiver. And this lawgiver, and there's this wonderful, phrase he, he says, gods would be needed to give men laws, okay?

And this lawgiver occupies that kind of a slot. The, the, the, the, the god slot if that's not too irreverent, okay? The task that the lawgiver has to fulfill can't, is beyond he says, beyond human powers. But nonetheless it's a task which he sees as imperative and necessary in the world.

Now the characteristics of this lawgiver are very interesting, I think. The lawgiver has to have no kind of material interests in the society. In terms of Raymond Williams distinction there can't be that kind of an immediate relation to society in terms of its immediacy. It's very general and very abstract In other words, the law giver has to be com-, a kind of a, of a acuity that's completely opened to, to possibility to the determination of things ever otherwise.

Quite apart from the people, but ultimately, of course, very much identifying in some way with the people when the law's being brought to bear. And this lawgiver exhibits, according to Rousseau, a superior intelligence, has a great soul, and he goes on and on about it, actually. But these attributes are but analogies for the dimension of law drained of attachment and to anything material and constantly attuned beyond the existent.

Now what I'd like to suggest. Is that there's an affinity, bit of an evasive term, but anyway, an affinity between what Rousseau sees as law here and certain notions of law in relation to society, which we find inevitably, of course, in post structural philosophy. And I'll just take a statement of Derrida's and a bit more of Derrida after that to, to bring that home, as it were, where he describes, in the Politics of Friendship, what he calls a law of originally sociability.

Now, I've read this so many times, it seems coherent, but it might be. Let's try. He says this law of originary sociability, he, he finds in the relation to the other. A relation prior, he says, to all all organized Prior to all, and this is his emphasis, determined law, prior to all determined law.

But not prior to law in general. Echo of Raymond Williams again, General Notion of Society. Not prior to law in general. This law, he says, of originary sociability being also a law, perhaps, he says, the very essence of law. Yeah, I think we can get a more situated sense of that law by looking at his engagement with hospitality.

And what he calls the law of hospitality. So if I could just run through that briefly. And this might raise more questions than it answers, but let me try. For Derrida hospitality is unconditional, imperatively unconditional. And this is the way he puts it. Only an unconditional hospitality can give meaning and practical rationality to a concept of hospitality.

Unconditional hospitality exceeds juridical. Political or economic calculations that no thing and no one happens or arrives without it, in its unconditional relation to alterity to the other in the ethos of hospitality for anything to, to, it to happen, he say. Yet, a conditional, or conditioned hospitality is also fiderta imparative.

And this is the way he puts that, the unconditional law of hospitality needs the conditional rules. It requires them, he said. That's his emphasis again, he emphasizes a lot. It requires them. This demand is constitutive he says. It wouldn't be effectively unconditional the law if it didn't have to become effective, concrete, determined.

So we have hospitality, the law of hospitality, the law requiring both this utter unconditional responsiveness, and a determinate affirmation. In some he says, political, juridical, and ethical responsibilities have their place, if they take place, only in this transaction between these two hospitalities, the unconditional and the conditional. So the two things are absolutely essential for each other even as they have to remain as it were, apart from each other.

If the unconditional were allowed to run rampant as it were, you'd have made the solution and dissipation. If the conditioned assumed some kind of dominance you'd have say the position in Lampaduca's The Lepord, where you'd have the staff which would very soon cease to relate at all effectively to a world inexorably changing, changing around it.

As Derrida says, summarily, in their very heterogeneity, these two things are under-sociable, and they're very different. They have to be, as it were, together. So, returning to law and society, then, we have a law that melds into both. Of the different strands which, which go to make up society.

With one there is a determinate law that is somehow apart from and impacts on society. With the other we have a law that is intrinsically responsive and derivative from society. There's a continuate coming together inextricably these two elements in and as a legal determination. And as I suggested earlier on the termination not just in the particular decision but in the very form and formation of what we take to be areas of law, areas of life and law.

And legal systems. Some of these, of course I'm not saying that everything's always changing, and responsive, and marvelous. Some, particular determinations can last a very long time. For example, the, the nation has for too long provided the paradigm of dominant notion of law. So much so that it was only fairly recently in terms of jurisponential thought that things like international law were actually thought to be properly law in any way.

Still struggling with that one. But that's because the model elevated quite arbitrarily. Hart, for example, in the concept of law, just says right at the beginning, well, law is municipal law. That's what I am going to look at. Then he's got a very uncomfortable chapter somewhere, I seem to remember, I'm looking a bit sheepishly at France right here, so I better be careful.

So there, there's a very uncomfortable chapter then on, on what international law might be. So we have law returning to Foucault's sketch of liberal society we have a law which is in liberal and near liberal societies a rule of law, law as a unlimitable and uninhibited. But a law which in it's specific determinate relations can indeed be quite strikingly and at times enduringly limited, such as law in relation to the labor relation, law in relation to the extent to which judicial review will intervene, in the prison, for example, or control systems of, of migration.

None of this is a fixed border, the horizon is never. Their containing law ultimately, but nonetheless, you do have quite persistent blocks, which of course, emerge from from time to time. Now all of that leaves me then with a concluding challenge, the challenge of saying or trying to say.

What the efficacy, what the force of this responsive dimension, which I've obviously been trying to sell, this responsive dimension of law happens to be. This evanescently responsive law, which does not seem to have any kind of. Palpable identity that we can seize on. For Dereda, this is a law which not only remains to come, but remains by coming.

Ever open to what he calls the coming of the other. He says, it deploys the very discourse of events irreducibly, irreducibly to come. It has, he says, no horizon of expectation. It is rather an imperative necessarily present. A response that is ever and already there. There it's coming but there.

I mean the very comingness if you like is, is within the determinacy of what it may be for the time being. It is, Deirdre would add, with I think a nuanced irony, a force, that is a weakness. But a force he says, capable of making the weakest, strongest.

And law's insistent, could add point to his con, concluding, to his concluding, that one says to oneself. One knows that in the end, true force is on the side of the oppressed. Thank you.
>> So we have. About 20 minutes for questions. Now, because this is being recorded, I will have to ask you to use one of the microphones, or is there only one microphone?


>> Only one.
>> There's only one microphone. So we will need to act cooperatively, and make sure that the flow of questions goes from one side to the other that you will stand up, right on the microphone.
>> You'll have to have a sufficiently responsive regard to to that imperative.


>> So be like the law. So an, any questions? Okay. Professors
>> Thank you, thank you very much Professor Filtzpatrick, for your lecture. Allow me to, well, that would be immodest to say, invite you, but to maybe ask you whether you could consider what might be the step, no the step that would follow an analysis that focuses on these two thinkers.

Especially in this time and context that we are in now. There's so much talk about, you know, law having to incorporate views from other sciences, and to unfold in a much more enriched and contextual discourse. And so political philosophy and philosophy as such, of course, are important contenders, but there's so much horrible talk about law just having to become inter disciplinary that right now politics is really difficult to locate in legal discourse.

So some people do this kind of work, but many others just think it's enough to deal with law having gone transnational, having gone global. By making it interdisciplinary. And one of the great thought is of your lecture just now is to show that, that of course has always been a challenge for law.

And has always been the only way to think of law as law in context. But now, even after the financial crisis there is so little of that, really done. And if it's done, it remains, you know, confined to a very small set of scholars but also of discourses.

And so, much of that is done in international law. But one wonders really where you know, where we might find opportunities to build bridges between those scholars that worry about law, how it transcends the nation state or municipal law. And the law of the economy, because the law of the economy and that's where you started off with.

That just precedes untouched. The, a lot of this discourse continues as if nothing has never happened. As if there had been no real globalization, if there had been no end of history or contestation there of or no financial crisis.
>> yeah, I mean, in an immediate kinda sense, I guess I would say law is political.

I mean, that, that very kind of contention that I'm talking about is an extinguishably political. But in a kind of an applied way, if you look at the eliminabiliity of law, if one accepts that, then whenever and you know blowing the dust off that First talk I gave at Osgood sort of reminded me of this actually.

So thanks very much for providing an answer to your question. Was that it, the law kept coming up against these kind of, you know, seemingly systematic constraints, in relation to labor relation and, and so on and there are various other instances I gave which, thank you for reminding me of.

That's the politics, you know, I mean, that's, those not comfortable there and people keep challenging it all the time, and keep challenging that particular division of, and, and, and arrogation of a particular type of power. Another instance of laws, you know, divine dissatisfaction, if you like, would be the persistent inextinguishable irresolution between law and sovereignty.

You know this is something that under the, late and non lamented you know reign of George W.Bush. Was coming up all the time you know, claim to a sovereign power and the counterclaim if you like all the time in relation to law. Neither ultimately could win because law can't be constrained, and, and sovereignty can't be constrained.

So, laws, even though you know, it is incapable of, of maintaining and enduring content of its own in some in-placed, determinate way, it is always in a position where it's insipidly disruptive of anything that's there. So the resistant ability of law, and this is what I take Derrida to be talking about, in the sense, on the side of the weakest, at least incipiently and potentially, is always there.

So I think that would flow on from it. But one other thing I think would flow on, would be. By countering the allegations of say sovereignty or modern notions of society itself, and by challenging the completeness of the claims made for them, both conceptually and existentially, you have, the question, well, okay, if we set on, that on one side, what do we do now?

And this relates to our other discussions that we've had. But what we are then faced with is the challenge of being with as part of being. And which, which law would in that sense drives us to. And of course so much else flow from that of course.
>> Thank you so much Professor Fitzpatrick.

This lecture was just. A reminder of the fantasies I had before going to law school. You get to hear lectures that talk about everything. I guess I wanted to and this must be, might be just a small variable quarrel about hospitality itself but. It seems to me that, that word, in of itself.

The very fact that, now, is changing from conditional to unconditional, not in a naive way. But, in a, in a visionary way in a way to say that. That unconditionality cannot be inherently, just can't be unconditional, it depends on the conditions.
>> Yeah.
>> But I guess the, the word itself, the connotation of hospitality is something to the effect that something must have originated before something else.

Which is fin from a historical point of view but since we are now talking across different domains of not just law, my law and your law, but also law on different disciplines.
>> Yeah.
>> How would it work? It would be my law. Receptive to your anthropology. My anthropology being receptive to your law.

Which one should precede not historically but ontologically which one should precede the other one and how does it work? Do you think that actually may not possibly jeopardize the. Concept of hospitality. Not the concept, but the concept of reception, and the possibility of recip-, reciprocity in some way.


>> Hmm. Well, I think, that the scene or scenario which Darrida sketches there is incompatible with being original. And with a claim to the origin, and hence a claim to some surpassing point of initiation. Or if you wish to adopt such a claim, you'd have to show, that it's already dependent on much that.

Came before it. And, to sustain it you're dependent on much that came after it. In other words, it's impossible to have a monadic or complete claim to the origin. That being so, if one accepts that, then, the hospitality. Would fit into that scheme of things where you might have competing claims, but you could not say that one was one, one, one was prior to another.

Perhaps there might be a kind of basic chronological way in which you could, you know, you're saying historically point to something coming before another. But in terms of you know our being with. Each other or being in common rather than common being. In those terms you, and, and then looking at hospitality and the law of hospitality and hospitality as law it would not be possible in a sense.

You know, you could not, as it were, elevate one above the other. Now I guess one would then ask. I don't wanna ask myself this but now I have to. Now that you pushed me to it. Where is the question of judgement, question of ethics, and so I'm coming to that.

Well it just comes in I think. I mean, it's not a relativism. It's not a. An unlimited so called hobble with tolerance. Anything goes. It's still tough you know. Decisions have to be made on a comparative basis before you form your own determinate position. So there is a going out but there's also a coming from.

And in the coming from there's notions of judgement, evaluation, form, formative force that would come into play, I think.
>> Michael Punit.
>> Thanks professor. Just a question I guess from the student perspective.
>> Yeah?
>> It's about that study of law and also law society or socio legal studies here at York and my question is focused on both the I guess the learning and teaching of norms if you will very broadly.

I'm just thinking about, given your talk about issues of god, relations between law and society is, law judging society obviously I think your answer is no. But as a practical level for, for students and also those who teach students, are there maybe a few pointers or directions you think that aft, after having kind of thought about these issues thought about the relationships that.

We could advance or, or more productively teach and learn about norms, about law. Because sometimes you hear from like judges and practitioners, you know, let, let's have something useful for I do, come out of a law school.
>> [LAUGH] Yeah.
>> Or you hear people saying that well in my discipline, law is viewed.

Strictly from disciplinary focus and the guts of what actually happens there we're not really concerned about. Like, we're just studying strictly from sociology, anthropology. What kind of directions or pointers would you think would help us do our learning and teaching better in that area?
>> One abolish legal positivism.


>> Ouch.
>> I have done it now. Two, have a much more questioning regard, to put it mildly,to the disciplinary. Conceptual boundaries that that, that, that erected around the, the, the subjects one is teaching and around the you know, the contents inside them. Of course, one can't simply just dissolve them.

And, you know, they, they are and insistent and persistent. Reality in their own right, so to speak. but, you know, there is more of a dynamism to them and it would open up things rather more effectively. I mean, over lunch we, for example we were talking about the way in which law schools here sort of responding to various change is going on, and how that's having an effect on the curriculum and, and on, on what's taught and all the rest of it.

And I was asked you know, does the fact that the U.K. is a member of a kind of this thing called European Community. Does that have any impact on, on, on the curriculum, on what's taught? Which one you think it would. Because you know, the EC lore is just so extensive.

It touches every area that we have anything to do with in the law school. With one exception which would be Constitutional law. Which I have to say, I wasn't bad, I was quite enjoying it. no. No. It, it, it's madness. So it would you know, by posing connections you would then have to say what are we connecting with you know.

So if, if, if we're talking about you know, some, something in a subject like a teaching tour or something. Talking about product liability. And, you know, the standards that you see in Sicorn aren't very grateful to it. Are so much higher than standards that which they displace within the UK itself.

The food industry gets very upset about it, you know, but it's very different to pay off the sea. It's much easier doing it internally as it were. You know that, that to me will be a relevant factor, and it would connect that law more closely with a, the EC law and would be practically speaking, I say I've got that last, practically speaking, it would amount to you'd be producing better lawyers.


>> Professor Buchanan.
>> Thank you Professor Fitzpatrick for a lovely talk, and I know I'll be having my ah-hah moments many years hence, as that's my, been my experience. But I did I, I did admire in particular the the way in which the talk, you know, that begins with sort of the tentacular reach of neoliberalism and governmentality sort of led us inexorably to the opposite conclusion of where I thought we were gonna go, which is that the law is on the side of the oppressed.

And so my question is about. Trying to explore the counter intuitive aspect of your conclusion. And I guess I'm wondering is it, is it the case then that modern law in your view must also be inclusive or encompassing of. Other conceptions of law or other legal orders including indigenous legal orders such as those that would be pre-existent in Canada and that this is referring to other conversations we've obviously had.


>> Yeah.
>> Earlier this week.
>> Yeah.
>> And, and I was mindful in particular of, sort of the example of hospitality that we saw in the film, The Journals of Knud Rasmussen, which is the hospitality displayed by the. Inuit community to the visiting explorers and the implications of them.


>> Mm. There's some, when I first read the Derrida his little book on hospitality I said, now hang on he's got the wrong society, that's the better one. You know what I mean? But now, now it would, and this, you know might, the coming back to Michael's question, it might be a bit too, you know, dissipating but ye.

If you adopted that approach to law, you could not avoid seeing the, just say an indigenous law or laws as an instance. You could not avoid the Interactivity if you like between those two things, in which each side of the equation is constituted. Now, one might say in a fairly confident a critical or Marxist way or something like that, that oh yes, we've got to see the interactions to see what the dominant, so called dominant legal system did.

To those other systems. And, you know? The horror. The horrifying things they did with them. But you cannot understand that until you start to try and see what, the effect of the indigenous system would be if it were allowed, you know, a more effective interrelation with the so called dominant system.

You can only really get to grips with what that effect is once you see how the other one should change as well. So I, I think a lot of critical work which of course is wonderful, but I, I think a lot of it just assumes the dominance of those systems.

I mean it would for start, I mean of course an anchor, mcGuild does a wonderful work like this I think. Where she can, she, she draws out of all the ingenious societies profound philosophical points about our inability just to be by ourselves. You know, and with pointed phrase we cannot be alone being alone.

And you know so much of of, of, of indigenous relation. Well, but the horrible word that's floating around a lot these days, relationality. So particularly, I know some Australian stuff, which is very strong on this, involves, segmentry societies, and so on, seeing themselves as absolutely, you know, Dependently related to other societies even if they're considered to be their enemy in some way.

I mean Paul and I were discussing the render you know just boy it's novel over lunch. And some of the ways in which these people see themselves being the same I won't go into detail of course cuz it's just after lunch, but Pretty horrifying, you know, which are then seen as rather barbaric kind of practices or savage practices and, you know, which he shouldn't be writing about in Canada in this, this day and age and all the rest of it.

But that portrays a lack of understanding of what those things were. And so the other side, as it were has to get, get a grip. As well if there's going to be a, a kind of a transformative practice linking those two different kinds of society. But I, I'd extend that to all sorts of other relations as well, you know.


>> Other questions? Professor Bubba.
>> Thank you for very interesting talk I'm, it sounds to me like. You're kind of passing on the question of where does law come from, and you, you don't, you're not necessarily focusing on, on that as much as focusing on the question of what, what does law do, and how does it move, and what are its.

What are its products and what are its possibilities. I'm wondering is, is it that the question of who is the law giver is no longer relevant or is not of interest to you, is it something we should be interested in, is it, is it a worthy question to pursue or are we to simply focus on what happens when law is thrown into the mix as it where.


>> Yes. Spot on Favia. I think, given my emphasis, you could say it doesn't come from anywhere. Couldn't you, because, you know, particularly with Rousseau's lawgiver, it's got to be everything's de novo because he's not connected to anything really in a way. And it's just a result of his.

Giving th, that what brought to bare. But I think, yo know if, if one looks at the other side if you like, at the determinate side the determined if you like, the effective side. There has to be a history. Well I think sorry kind of this is a bit silly but I think it goes both ways and I'm stealing from Darrida here in Before the Law.

Law can't have a history. Because you know it's, it's, it's capable always capable of the casing itself completely and it's content is always disappearing from it. So he says quite bluntly that law doesn't have a history. But then he talks a bit later on about the whole history of law.

Now one thing about Darrida whether you like him or not he's never inconsistent. So you have to ask yourself, what in the hell does he mean. And you realize, yes it, yes, okay, it doesn't have a history in any kind of settled sense, you know. It's always, becoming other than what it is, but it's coming from somewhere.

There is still a history in that sense, you know. So, you wouldn't be able to just sort of stand up and quote, make up a rule of tort, you know, which suited your client or something like that. Of course, there would be precedent. To be contended with, to be struggled with, to try and stretch this way, to push that way in the direction of its responsiveness.

But you'd always start off with some, well, not always actually, but anyway, start off with something. There would be degrees of creativity. I mean, transitional justices we were touching on yesterday a bit. in, in, in some societies is incredibly inventive, you know? I mean. All sorts of things put together from all over the world in ways that I don't think anyone could predict.

And see as any kind of a coherent continuing history. I cert- certainly wouldn't like to be tried. Under reg- lot of regimes of transitional justice. You know because you take a bit of stuff from the ICJ here. Take a bit from truth and reconcilation in South Africa there.

You take a bit from your internal constitution. You mix well and, and then bake. And a it's, it's pretty wild stuff. So, I think there are degrees, aren't there? And I think these degrees probably vary in terms of I've earned feelings of I've earned importance in regard to security and the expectation and so on.


>> Okay, it's always difficult to close. After such an ambitious presentation that animates the, the fantasies of some of our colleagues wishes the death of some schools of thought that people like me at least partly adhere to. But this, this being said I think we're all very thankful to Professor Fitzpatrick.

For yet another, a fourth visit to Osgood, and really thoughtful presentation. And, and the challenge when somebody has come to four times to Osgood is to, is to make sure that that, our token of appreciation is not the same as the one that we've offered. On past trips.

So here I am going to cross my fingers, because, unfortunately I was not there for those previous visits. Thank you very much you're very thoughtful.
>> Thank you. Thank you. Thank you.