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It's a huge pleasure though each year to
come together for the Genest lecture.

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And it really is a time both to mark the
arrival of an important

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guest who is gonna help shape a number of
discussions around the law school.

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Not just at today and in this talk but
also a time to reflect on the Genest

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family and, and friends and their
generosity in

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establishing the fund that allows these
visits to happen.

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And we are are really fortunate today to
have

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Pierre Genest son and daughter-in-law,
Paul and Barbara, with us.

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And it's something that we see as very
much an ongoing relationship.

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And, and one that really becomes a family
affair for us as a result.

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So especially on a, a day when, as we say,
we

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separate the fair weather friends from the
true aficionados at York University.

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To have you guys up is, is quite special.

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I can also assure you that University is
going to forge ahead

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and remain open and you know active for
this talk.

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Afterwards I think the leadership got
together and

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said, really what's going on that's worth
it.

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Once Peter's spoken, so it may be the

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case that the University closes shortly
after we're done.

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I think around 2:30.

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But we are fine.

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And enjoying I guess the wintry splendor
from

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a distance that we see out the windows.

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So the Pierre Genest Memorial Fund again,
for those who aren't here

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every year, and don't have the opportunity
to hear something about it.

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Was a fund established in honor of Pierre
Genest.

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It creates a global faculty of visitors
who come, some

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do workshops for credit, some do a series
of guest lectures.

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Some do mentorship with our graduate
students and scholars.

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Some do combinations of all of those.

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And the themes typically involve
Comparative law, Constitutional law.

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Something about Canada's Federal bijural,

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bilingual, bicultural, multicultural
connections and traditions,

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and this creates a really vibrant linkage
that is always timely.

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And we had the good fortune over lunch a
bit earlier to remind Peter of all

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the live debates that, you know, intersect
with

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these topics going on in Canada right now.

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And of course the benefit from things that
are happening elsewhere as part

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of our conversation is gonna be a clear
goal of the the Genest program.

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So Pierre Genest was one of the leading
litigators in the

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country but, but really that's not why
this fund was created.

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It was being that kind of renaissance

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lawyer who really did engage in
intellectual, philosophical

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policy and political debates as much as
the

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system of justice and the administration
of justice.

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Is what characterized Pierre Genest, and I
think what inspired those who

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cared for him to come together to create
this living and lasting legacy.

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So that's very much what brings us
together.

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And what brings us today together is Peter
Fitzpatrick, who

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has a series of titles that are hard to
forget.

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So he is the Anniversary Professor of Law
at Birkbeck, in the University of London,

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as well as an honorary Professor of Law in
the University of Kent.

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And to anyone who looks at questions in
law

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and society about law as resistance, or
the Foucauldian tradition.

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I've seen a legal analysis through a lens

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of broader dynamics of power, authority,
freedom, liberty.

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You will already have come across Peter's
work and if you haven't there's a,

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a links to some his books, and

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scholarly contributions, that are, are
easily available.

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We were hearing as well that sense of
spawning a whole generation of people who

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look at law and society differently
through many

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graduate supervisions and many connections
to emerging scholars.

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And Peter is that kind of mentor to people
who again some end up in law schools.

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Some in great Law and Society departments
like the one here at York.

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And it's great to see colleagues from
across

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the university, not just the law school
here today.

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But, it's fair to say that this is shaping

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a really important interdisciplinary and
comparative set of debates.

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So I won't go into other roles Peter's had
as

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visiting lectures and in policy
particularly in Papua New Guinea.

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We were just speaking about.

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But suffice it to say, there are important
stories

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to be told, I'm sure from each of those
stints.

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And we'll hear at least a slice of current
thinking from Professor Fitzpatrick today.

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So please join me in giving a warm Genest
and Osgood welcome to our guest speaker.

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[SOUND]

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>> well, thank you Mr. Dean, for that
sustaining introduction.

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The sustaining lunch as well And well
thank you for being here.

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I mean, and, and congratulations.

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If anything remotely like this happened in
England

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I'd be talking to an empty empty hall.

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[LAUGH] It, it's staggering.

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so.

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>> We're Canadian.

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>> Yes.

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[LAUGH]

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I'm honored to be offering a lecture
associated with

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Pierre Genest for the reasons that have
just been given.

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And I'm also honored to have Barbara
Jessup and Paul Genest in the in the

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audience and going on the range of Paul's
academic engagements.

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And achievements that might be more
appropriate if

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he was up here, and I was down there.

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But [LAUGH] I think I'm stuck with this
one.

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And I'm honored to be back at Osgood
actually.

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This is my fourth invitation to be here.

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I won't tell you how long it stretches
back.

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And I'd like to think that it was

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an example of the May West principle that
you can't have too much of a good thing.

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But I suspect it's more a matter of, let's
see if he

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gets it right this time, we'll give you
one more go at it.

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If that were the case, I came across this
lovely bit of

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Becker the other day, and this could be
the epigraph for it.

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Try again, fail again, fail better.

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[LAUGH] And if I don't fail better.

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It wouldn't be for the want of the
wonderful support and concern that I've

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had from Jodianne Roe Butler and
Professor, Ruth Buchanan.

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Ruth is for me the the exemplary, I'm
going to embarrass her now.

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the, the the exemplary academic with

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her abundant intellectual imagination and
creative generosity.

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She also sort of got me into this mess, I
believe.

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And she also bleakly gave me the concern,
for, for this lecture because

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I was busily working on something that was
quite arcane.

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I think we were talking on the phone, and
she indicated to me that I was good but

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still, you know, pretty well up there as
far

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as along society goes, and I thought, oh
my god.

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I better say something about law and
society and resurrect an old interest,

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and see if I can relate it to what I've
been doing since.

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And that's what I've tried, that's what
I've tried to do.

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More specifically I think we might ask
whether, in late modernity

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there are perspectives that are emerging
in philosophy, perhaps in particular.

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It might throw some light on and provide
some rather intriguing powers

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beyond the concern of the, with the
connection between law and philosophy.

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But first of all, I just, a note on the
title, Strange Gods.

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The more usual version where this would
come from.

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In the decalogue, as I am the Lord, thy

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God, thou shalt have no other gods before
me.

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But the [UNKNOWN] version is no strange
gods before me.

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And I hope you all appreciate why I prefer
strange as, as we go along.

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Okay, so something like an abstract for
the talk could go something like this.

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The still burgeoning field of law and
society presents us

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with still I think, two seemingly
disparate notions of law.

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With one of them, law is the abject
creature of society, if you like.

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Or of some social force that tends to
dominate society and dominate law.

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And economies usually, a leading
contender.

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The other dimension has law assuming some

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kind of independence, some kind of
autonomy.

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And being able itself to act upon society
to, as the terminology so

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often has it, to shape society even in
times to create society.

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So, what I want to say is an analysis of
society and it's modern and late-modern.

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terms, shows us the both of these meanings
if you like, of law are

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there, and that they are strange to say
I'm just

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pitching this too highly, I think but I've
got to go on

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now, that's strange to say that, that
they're compatible with each other.

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And that's, yeah, that's true, I think,
yes, Bob's gonna try to argue.

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But what I also wanna argue is to say

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that, that compatibility points us towards
notions of sociality and

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relations between law and sociality that
go beyond this,

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existing terms in which we engage with law
and society.

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Now that, as an abstract, would be rather
abstract, abstract and so I'll try and

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situate things rather more explicitly by
looking at Foucault and the

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the lectures on the birth of bi-politics,
which are quite remarkable, I think.

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With the position that he places society
in, in relation to

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what we could broadly call other social -
other social forces.

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As you know, is too well known I suppose,
these days, Foucault

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perceived notions of governmentality -
he's

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horrible neologism - or bi politics the,
ordering.

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The ruling in a sense, the tentacular
ruling,

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of whole populations across the whole
range tied

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integrally with notions, and this was his
early

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work, with notions of discipline and so
on.

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You have a pervasive and a tentacular
governing of whole populations.

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For Foucault society, as it were, serves
that kind of function

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by being an instrumental adjunct if you
like of that type of power.

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Just a quote from the the lectures on The

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Birth of Bio-Politics we're talking about
an omnipresent government.

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A government which nothing escapes.

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A government which conforms to the rules
of right.

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Wait, that's an interesting reservation
for now, but we'll come back to it.

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And a government which nevertheless
respects a specificity of the economy.

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And a government that manages civil
society, the nation society, the social.

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But this management of civil society is
not a

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complete domination because, he then goes
on to say,

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that the very notion of civil society that
enables

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this governable, govern another horrible
word, governability of, of individuals.

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Also just completely trying to complete
the

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picture, and, and moving on to to economy.

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We find a similar seeming contradiction,
well

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seeming contradiction, that the economy
for Foucault is

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something in, in, in liberal and
neo-liberal

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dispensations, which is what he's dealing
with here.

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Is something that is uncontainable.

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It's treated as a kind of natural thing
that's just there.

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And it can't be, and, and somewhat

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like governmentality it's range is, is
limitable.

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At the same time, and, and hence sorry,
society again as

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civil society in particular, comes to the
aid of notions of economy.

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Which given it's range can't be of course,
encompassed by any

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notion of society or any determinant or
limited notion at all.

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But then he goes on to say that

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society provides the field of reference
with, within,

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which is made possible, in which there is

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a governing which combines governing
economically and governing theoretically.

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So we have a bit of a mess.

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But it, it's one I think where we have
this fascinating conjunction and

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disjunction between these various elements
say govmentality for bravery sake.

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An economy on the one side, and society on
the other.

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Where society is both a kind of a
subjective instrument of these

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forces and, because it is serving an
illimitable

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boss if you like, that society itself has
to be illimitable.

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00:14:04,540 --> 00:14:06,950
If, if it's going to perform that
function,

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00:14:06,950 --> 00:14:10,110
in a sense that very limit ability sets it

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00:14:10,110 --> 00:14:12,850
apart as well, because it intern can't be

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00:14:12,850 --> 00:14:16,730
contained in, in, in any terms that it's
going.

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00:14:16,730 --> 00:14:23,500
And hence even as a vacuity, even in its
object state it provides these field

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00:14:23,500 --> 00:14:28,090
of reference as he called it and these
modes for these other things to operate.

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00:14:29,440 --> 00:14:33,760
Now this division in society, I mean I'll
come back to that conglomerate later

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because I'll be relying on it as my kind
of case, if you like.

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00:14:37,700 --> 00:14:43,410
But this notion of society is I think
fairly conventional actually, in some

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00:14:43,410 --> 00:14:47,700
ways, but that doesn't mean to say that
it's not right in some ways.

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00:14:47,700 --> 00:14:51,520
If we look at Raymond William's keywords
and the wonderful,

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00:14:51,520 --> 00:14:57,540
you know, abbreviated synoptic genealogies
he has of various things there.

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00:14:57,540 --> 00:15:02,340
If we look at society, he would say that
and, and

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00:15:02,340 --> 00:15:05,780
in a way which remarkably parallels
Foucault's history of this actually.

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00:15:06,840 --> 00:15:10,480
You know, people slate Foucault off
routinely for his bad

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00:15:10,480 --> 00:15:12,948
history but he seems to get it right on
this occasion.

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00:15:12,948 --> 00:15:18,708
Raymond Williams sees society divided
between what

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00:15:18,708 --> 00:15:22,870
he calls an active and immediate sense.

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00:15:24,110 --> 00:15:27,376
And society as in, a general and abstract
sense.

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And on cue with Foucault, he notes that
from the 18th century,

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00:15:32,981 --> 00:15:38,206
the abstract and and, and general sense
strengthens, as he

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00:15:38,206 --> 00:15:43,530
puts it, until today we see that it's
pervasively predominant.

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And that it somehow subordinates the, the
other sense.

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And in a sense almost displaces it as an
operative factor.

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In a like way, LaForgue traces the
emergence of modern

225
00:15:58,860 --> 00:16:03,050
societies, the existence of which can no
longer rely on a

226
00:16:03,050 --> 00:16:08,300
transcendent reference beyond them, and
finds in modernity a

227
00:16:08,300 --> 00:16:13,630
society that is self sufficient in being
as he puts transparent to itself.

228
00:16:14,930 --> 00:16:17,210
It's intelligible in itself.

229
00:16:17,210 --> 00:16:20,700
Then he makes a remarkable claim, which I
think is spot on.

230
00:16:20,700 --> 00:16:24,040
He says an illusion which lies at the
heart of modern society, he

231
00:16:24,040 --> 00:16:26,640
refers to this, namely that the
institution

232
00:16:26,640 --> 00:16:30,010
of the social can account for itself.

233
00:16:32,430 --> 00:16:33,840
There are also many more straight in

234
00:16:33,840 --> 00:16:37,502
the social sciences, many more straight
forward declamations.

235
00:16:37,502 --> 00:16:40,210
Which pitch the scene on one side or the
other.

236
00:16:42,350 --> 00:16:43,230
On one side of the divide,

237
00:16:43,230 --> 00:16:47,240
you have society comprehensively
subordinated to some

238
00:16:47,240 --> 00:16:51,080
other force, usually usually economy and
being

239
00:16:51,080 --> 00:16:54,460
the abject creation of this other force.

240
00:16:54,460 --> 00:16:58,980
On the other side of the divide, you have
society as, in the, in the false terms,

241
00:16:58,980 --> 00:17:03,140
able to account for itself and rampantly
creating, constructing,

242
00:17:03,140 --> 00:17:07,260
forming everything around it, including,
including our very identities.

243
00:17:07,260 --> 00:17:10,260
And notions of social constructionism.

244
00:17:10,260 --> 00:17:13,900
In, in, in sociology for example, would,
would illustrate this.

245
00:17:13,900 --> 00:17:16,360
Now this leaves society, seemingly.

246
00:17:16,360 --> 00:17:24,085
Mired in, existential incoherence, and I'm
suggesting, I'm more than

247
00:17:24,085 --> 00:17:30,080
suggesting, I'm saying, that, a resolution
of a kind can be found if we go to nature.

248
00:17:33,380 --> 00:17:35,280
I want you to know it was a very
responsible lunch.

249
00:17:35,280 --> 00:17:39,516
Paul and I were discussing nature at that,
at some, at some place.

250
00:17:39,516 --> 00:17:45,176
So nature, and nature

251
00:17:45,176 --> 00:17:51,970
is supremely sane madman in the death, in
the gay science,

252
00:17:51,970 --> 00:17:57,918
where the madman enters the marketplace
and announces to the uncomprehending

253
00:17:57,918 --> 00:18:02,570
moderns that god is, god is dead.

254
00:18:04,090 --> 00:18:07,290
He doesn't get exactly an engaged
response.

255
00:18:08,520 --> 00:18:13,180
And realizes that they do not realize that
this has happened.

256
00:18:14,350 --> 00:18:16,840
It's an event, says Nietzsche, says the

257
00:18:16,840 --> 00:18:20,235
madman, says Nietzsche, that is still
beyond us.

258
00:18:20,235 --> 00:18:23,136
It's still to come, it's still on it's
way.

259
00:18:23,136 --> 00:18:29,370
And he asks, what in the hell, he doesn't
quite say that, but

260
00:18:29,370 --> 00:18:32,190
what in the hell, you know, what, what
we're going to do about this.

261
00:18:33,360 --> 00:18:35,600
And he concludes that we're going to have
to invent what

262
00:18:35,600 --> 00:18:39,879
he calls sacred games, or what he calls
festivals of atonement.

263
00:18:41,292 --> 00:18:46,240
And I looked up atonement in my very old
Etymological dictionary.

264
00:18:46,240 --> 00:18:47,790
And so I don't know whether they're still
valid.

265
00:18:47,790 --> 00:18:48,430
It's rather lovely.

266
00:18:48,430 --> 00:18:50,210
You've got at, one, and meant.

267
00:18:50,210 --> 00:18:52,920
In other words the return to a unity.

268
00:18:52,920 --> 00:18:55,818
So the festivals of atonement, to, you
know to, we no

269
00:18:55,818 --> 00:19:00,270
longer have that unifying force of this
transcendent reference is God.

270
00:19:00,270 --> 00:19:02,200
So we have to invent other sacred games.

271
00:19:02,200 --> 00:19:06,080
Or, or festival of atonement to restore
our

272
00:19:06,080 --> 00:19:08,710
own unified, our own unified being, if you
like.

273
00:19:10,930 --> 00:19:15,340
Nietzsche's favorite sacred game, and this
is

274
00:19:15,340 --> 00:19:19,070
in [UNKNOWN] mainly, is the, is the state.

275
00:19:19,070 --> 00:19:20,010
The modern state.

276
00:19:21,320 --> 00:19:23,270
He calls it a new idol.

277
00:19:24,290 --> 00:19:24,920
And he

278
00:19:26,980 --> 00:19:30,430
compares it to the ordaining finger of
God.

279
00:19:30,430 --> 00:19:35,440
And that, although irresponsibly doesn't
footnote it, it is, it's from Exodus.

280
00:19:36,970 --> 00:19:40,410
The assumption as with society, has the
state

281
00:19:40,410 --> 00:19:45,580
fusing the limitable, you know, this range
of

282
00:19:45,580 --> 00:19:48,680
a limitable force in power that was
characterized

283
00:19:48,680 --> 00:19:51,870
with with the deity and with transcendent
reference.

284
00:19:51,870 --> 00:19:54,680
Has it fusing it within the determinedly
existence.

285
00:19:54,680 --> 00:19:57,389
So, that the modern nation, nation state.

286
00:19:59,080 --> 00:20:04,320
Providing the typical example for nature,
is as so many

287
00:20:04,320 --> 00:20:09,700
people in sociology have noted, most often
equated, and really confined

288
00:20:09,700 --> 00:20:12,740
in this determinate guise to the society
of the nation, that's

289
00:20:12,740 --> 00:20:16,230
the paradigm that tends to be, that tends
to be adopted.

290
00:20:16,230 --> 00:20:20,600
And of course this drags in all sorts of
notions like sovereignty and so on.

291
00:20:20,600 --> 00:20:23,370
The dragging in of the immensity,

292
00:20:23,370 --> 00:20:27,300
the encompassable, unencompassable
immensity of the, of

293
00:20:27,300 --> 00:20:29,479
the sovereign claim, which is unlimited
into

294
00:20:29,479 --> 00:20:33,650
a specific into a specific, specific
locale.

295
00:20:33,650 --> 00:20:37,390
Whether you see it as the state or whether
you see it as society.

296
00:20:37,390 --> 00:20:42,570
Involves the drawing in of the
transcendent to a determinant location.

297
00:20:42,570 --> 00:20:46,380
That inextricably ramps that location
itself, up

298
00:20:46,380 --> 00:20:49,830
to a transcendent up to a transcendent
domain.

299
00:20:53,810 --> 00:20:57,890
And the competence that both society and
the

300
00:20:57,890 --> 00:21:01,240
state take on is a remarkably monotheistic
kind.

301
00:21:01,240 --> 00:21:04,130
It's a very uncomfortable monotheism
because these deific

302
00:21:04,130 --> 00:21:07,260
substitutes are not singular, there are
several of them.

303
00:21:07,260 --> 00:21:14,170
But so far I've just touched on, the
nation state and the

304
00:21:17,350 --> 00:21:18,370
notion of society.

305
00:21:21,340 --> 00:21:24,370
This of course leaves a considerable
problem for, for

306
00:21:24,370 --> 00:21:27,790
the model, because if you are going to
adopt,

307
00:21:29,000 --> 00:21:32,710
and resort to some kind of transcendent
reference, but

308
00:21:32,710 --> 00:21:36,470
you're supposed to be living in a secular
world.

309
00:21:36,470 --> 00:21:37,900
Now we'll talk a bit more about that in a
minute.

310
00:21:38,930 --> 00:21:42,410
Then how do you reconcile those, those two
things?

311
00:21:43,530 --> 00:21:49,540
Because secularism is not capable or
rejects the

312
00:21:49,540 --> 00:21:52,640
the the notion of a transcendent,
transcendent reference.

313
00:21:55,320 --> 00:21:59,020
What I'd like to suggest is that this is

314
00:21:59,020 --> 00:22:02,096
effected, or this is the next solution
that comes on

315
00:22:02,096 --> 00:22:06,950
to the table, by something we could call a
negative universal

316
00:22:06,950 --> 00:22:12,099
reference which goes to constitute an
occidental modernity.

317
00:22:13,120 --> 00:22:16,830
The reference in absorbing nature's
infinite nothing, because that's what the

318
00:22:16,830 --> 00:22:21,530
madman sees, he see he's cast now into an
infinite, nothing.

319
00:22:21,530 --> 00:22:24,700
Something which Haegel for example, had
already perceived.

320
00:22:26,810 --> 00:22:31,994
That, in a sense by adopting a negative
reference, avoids

321
00:22:31,994 --> 00:22:37,360
referring to some kind of unmodern,
transcendent positivity.

322
00:22:37,360 --> 00:22:40,730
And I just want to say a bit more about
that, before, but first of all

323
00:22:40,730 --> 00:22:43,100
I just want to slip in Heidegger's
commentary

324
00:22:43,100 --> 00:22:46,310
on nature's parable, which situates this
nicely, I think.

325
00:22:46,310 --> 00:22:47,720
Heidegger puts it this way.

326
00:22:47,720 --> 00:22:52,188
Even if God has vanished from his place in
the super sensory

327
00:22:52,188 --> 00:22:58,350
world, still the place itself is preserved
although it has become empty.

328
00:22:58,350 --> 00:23:02,300
The empty place even invites it's own
reoccupation, and calls for

329
00:23:02,300 --> 00:23:06,530
the god who disappeared from it to be
replaced by another.

330
00:23:07,780 --> 00:23:11,210
Hence I'm moving toward my strange gods
gradually.

331
00:23:11,210 --> 00:23:11,710
Okay?

332
00:23:12,800 --> 00:23:14,590
So it's such another where the nation
state or

333
00:23:14,590 --> 00:23:18,930
society becomes what certain alterities,
certain others are not, or

334
00:23:21,170 --> 00:23:23,400
it becomes not what they are.

335
00:23:25,030 --> 00:23:25,530
The,

336
00:23:27,650 --> 00:23:30,390
I suppose in ways one could say the
original instance of this in

337
00:23:30,390 --> 00:23:36,485
modernity is the invention of racism in
the 18th century, late 18th century.

338
00:23:36,485 --> 00:23:41,946
Where [COUGH] the claim to this negative
reference,

339
00:23:41,946 --> 00:23:47,026
being universal has to reject the other
against

340
00:23:47,026 --> 00:23:52,670
which is constituted utterly, completely.

341
00:23:52,670 --> 00:23:55,000
Because anything that's beyond the
universal, can

342
00:23:55,000 --> 00:23:56,940
only be utterly, or completely beyond it.

343
00:23:58,530 --> 00:24:02,300
But at the same time, and this is the
neatness of the beast.

344
00:24:02,300 --> 00:24:08,170
At the same time, the universal has to
extend to,

345
00:24:08,170 --> 00:24:12,070
and incorporate in a sense, that which is
as just rejected.

346
00:24:13,710 --> 00:24:18,157
So, the, excluded are also [UNKNOWN].

347
00:24:18,157 --> 00:24:20,420
I hope that's not urgent government
business.

348
00:24:20,420 --> 00:24:26,540
[LAUGH] The the excluded have also to be
brought within

349
00:24:26,540 --> 00:24:31,109
the domain of, of the reference as well as
excluded from it.

350
00:24:33,250 --> 00:24:35,740
So here we could turn briefly to Foucault

351
00:24:35,740 --> 00:24:39,530
governmentality, and buyer power, and
disciplinary power as well.

352
00:24:42,600 --> 00:24:45,980
A type of conjunction disciplinary power
as he puts it, encompassing

353
00:24:45,980 --> 00:24:50,334
the very life of society, and the lives of
it's members.

354
00:24:50,334 --> 00:24:56,100
And Foucault in a trajectory that emanated
from racism and

355
00:24:56,100 --> 00:24:58,750
I take this mainly from his, society must
be defended.

356
00:25:00,470 --> 00:25:02,340
He says racial division provided the

357
00:25:02,340 --> 00:25:06,740
first historical, and political discourse
on society.

358
00:25:07,830 --> 00:25:09,900
Don't know whether that's so really, but
it suits me so

359
00:25:09,900 --> 00:25:13,638
I'm just going to stick with that for the
time being anyway.

360
00:25:13,638 --> 00:25:16,690
The first historic and political discourse
on society.

361
00:25:16,690 --> 00:25:23,530
But he brilliantly in that set of lectures
merges that into his consideration

362
00:25:23,530 --> 00:25:27,500
of a bi power and disciplinary power and
notions of the abnormal.

363
00:25:27,500 --> 00:25:30,390
And the anomaly.

364
00:25:31,610 --> 00:25:35,300
And the way in which these types of
scientistic operation

365
00:25:35,300 --> 00:25:38,740
of power in modern society, operate by way
of negation.

366
00:25:41,110 --> 00:25:44,360
Although that's associated with his later
work, he really did the same thing

367
00:25:44,360 --> 00:25:46,960
in [INAUDIBLE] folly, because he was
saying

368
00:25:46,960 --> 00:25:52,320
there, we only know sanity through
insanity.

369
00:25:52,320 --> 00:25:54,399
And he spends a very big book saying that.

370
00:25:56,680 --> 00:26:00,760
And I know it's contested, but he then
returns to that theme without linking it

371
00:26:00,760 --> 00:26:04,320
with insanity actually, and ties it into
these

372
00:26:04,320 --> 00:26:08,673
disciplinary formations and, and, and into
bi power.

373
00:26:10,490 --> 00:26:14,000
So the formative force of the socially
normal.

374
00:26:14,000 --> 00:26:19,430
and, and the socially conforming looks to
what is other to it.

375
00:26:19,430 --> 00:26:22,330
It, it, it's a negative, negative
reference.

376
00:26:22,330 --> 00:26:25,970
The abnormal in such as Foucault are both
interior, and

377
00:26:25,970 --> 00:26:31,730
foreign, subjected as he says, to an
inclusion through exclusion.

378
00:26:33,040 --> 00:26:33,610
Okay, now.

379
00:26:35,770 --> 00:26:38,240
All of that might seem to take

380
00:26:40,500 --> 00:26:43,810
matters no further than society simply
being

381
00:26:43,810 --> 00:26:47,400
part of the conglomerative power map by
Foucault.

382
00:26:47,400 --> 00:26:52,270
Society as a functional extension of
governmentality by powers

383
00:26:52,270 --> 00:26:54,909
of a functional extension of economy and,
and so on.

384
00:26:56,810 --> 00:27:01,290
Yet as I tried to indicate, there's
another society, if you like, lurking

385
00:27:01,290 --> 00:27:06,840
within that conglomerate which seems to
take on, through it's very limitability in

386
00:27:06,840 --> 00:27:13,369
its functional role, some kind of
independent existence otherwise.

387
00:27:15,520 --> 00:27:21,460
That society itself also forms through a
negative universal reference.

388
00:27:22,740 --> 00:27:25,342
This is something that's come up quite
dramatically recently

389
00:27:25,342 --> 00:27:29,550
with work by the medievalists and the pe,
people concerned

390
00:27:29,550 --> 00:27:32,510
with periodization who are saying, we've
had enough of this

391
00:27:32,510 --> 00:27:34,960
Dark Middle Ages stuff and all the rest of
it.

392
00:27:34,960 --> 00:27:38,220
Although, our Prime Minister in the UK has
and every Prime Minister's question

393
00:27:38,220 --> 00:27:41,165
time, he managed to squeeze in a reference
to the Dark Middle Ages.

394
00:27:41,165 --> 00:27:44,450
[LAUGH] By saying, if you actually look at

395
00:27:44,450 --> 00:27:46,510
these things, it was never anything like
that.

396
00:27:46,510 --> 00:27:49,070
Feudalism was an invention of the 19th
century, so on and so forth.

397
00:27:49,070 --> 00:27:51,263
It's much longer story, of course.

398
00:27:51,263 --> 00:27:55,170
But nonetheless, what's being traced here,
is a formation of

399
00:27:55,170 --> 00:28:00,080
society as modern by way of rejection of
what came before.

400
00:28:00,080 --> 00:28:04,910
And encapsulation and the rejection of
what came before, and by the rejection

401
00:28:04,910 --> 00:28:07,200
in a like mode of barbaric,

402
00:28:07,200 --> 00:28:11,030
or savage societies excluded from
universalized civility.

403
00:28:12,690 --> 00:28:15,500
This is the supposed outcome in terms of
the standard

404
00:28:15,500 --> 00:28:20,006
trajectories that we find of a progressive
development of society.

405
00:28:20,006 --> 00:28:24,130
Most specifically as Frisbean and Sarah
put it, the concrete development

406
00:28:24,130 --> 00:28:30,240
of [UNKNOWN] the shell shaft market
society, civil society, bourgeois society.

407
00:28:30,240 --> 00:28:34,230
Only then, and this harks back to Raymond
William's terminology.

408
00:28:34,230 --> 00:28:37,739
And only then did the generality society
become visible.

409
00:28:39,300 --> 00:28:44,160
This generality coinciding with Williams'
general and abstract sense.

410
00:28:45,910 --> 00:28:47,910
society, in terms of it's pervasive

411
00:28:47,910 --> 00:28:53,100
dominance over the active and immediate
senses.

412
00:28:54,440 --> 00:28:58,560
And it's this negative universal reference
that frees the abstract.

413
00:28:58,560 --> 00:29:03,090
And the general from a positive type of
constraints.

414
00:29:03,090 --> 00:29:04,980
So you can make a limitable claims to

415
00:29:04,980 --> 00:29:08,310
society along with the four of sovereign
societies,

416
00:29:08,310 --> 00:29:10,800
international societies, without having
the constrain of a

417
00:29:10,800 --> 00:29:15,559
positive reference, spoiling the fun and
actively constricting you.

418
00:29:17,570 --> 00:29:20,058
So, this is supposed to be about Law and
Society, okay.

419
00:29:20,058 --> 00:29:24,030
[LAUGH]
So look.

420
00:29:24,030 --> 00:29:25,850
I'm going to do it.

421
00:29:25,850 --> 00:29:28,350
Law and Society one.

422
00:29:28,350 --> 00:29:32,360
This is the longer one.

423
00:29:33,818 --> 00:29:40,900
So looking, and I'm not

424
00:29:40,900 --> 00:29:44,030
too sure about this because I'm a bit out
of date, but so, and this is why I'm here.

425
00:29:44,030 --> 00:29:46,180
I want to steal stuff and I want you to
correct me.

426
00:29:48,990 --> 00:29:53,410
Law is appropriated in this scheme, saying
Foucault is conglomerate and all the

427
00:29:53,410 --> 00:29:57,459
rest of it, but it has a very specific
prominence in the process.

428
00:29:58,760 --> 00:30:05,470
In the field of law and society, law is
often conceived of as entirely dependent

429
00:30:07,740 --> 00:30:11,800
and, and, and some kind of entirely
dependent offspring of

430
00:30:11,800 --> 00:30:16,439
society or and I've said earlier on some
pervasive force.

431
00:30:17,970 --> 00:30:23,870
And so much so that when certain types of
society are seen to be

432
00:30:23,870 --> 00:30:28,176
rampant or predominant such as regulatory
society,

433
00:30:28,176 --> 00:30:31,280
the administered world [UNKNOWN] all rest
of it.

434
00:30:31,280 --> 00:30:35,790
We find statements about the death of law.

435
00:30:35,790 --> 00:30:39,720
That somehow this scheme of things is
incompatible with the existence of law.

436
00:30:39,720 --> 00:30:43,220
This is what Foucault gets saddled with
wrongly, utterly wrongly.

437
00:30:43,220 --> 00:30:45,430
The, the perversion of disciplinary
society bi

438
00:30:45,430 --> 00:30:48,850
power, and so on, means that law no

439
00:30:48,850 --> 00:30:57,910
longer has any as it were autonomous or
coherent function or being if it's own.

440
00:30:59,600 --> 00:31:05,960
Yet by way of partial release, relief a, a
persistent strand would say this is

441
00:31:07,450 --> 00:31:12,440
that that the law had a relative autonomy,
in relation to society.

442
00:31:12,440 --> 00:31:14,230
That gets me pretty fashionable, I seem to
remember.

443
00:31:17,060 --> 00:31:23,240
So it has some distinctness and, and
efficacy even if not not a great deal.

444
00:31:25,330 --> 00:31:31,980
On the other hand, as it were there seems
to be an imperative for society itself

445
00:31:31,980 --> 00:31:36,680
to generate an autonomy of law which is
recognized in the literature.

446
00:31:38,200 --> 00:31:43,874
So with the type of modern society
inhabiting my argument here law

447
00:31:43,874 --> 00:31:50,490
arise at a position of quite
differentiated autonomy.

448
00:31:50,490 --> 00:31:54,480
We're talking here about Foucault's
concern in bi politics.

449
00:31:54,480 --> 00:31:58,100
With liberal or Neo-liberal society, where
law

450
00:31:58,100 --> 00:32:03,510
provides the link between society's now
desperate members.

451
00:32:03,510 --> 00:32:07,870
Some fairly famous instances of this,
Donald Black.

452
00:32:07,870 --> 00:32:15,030
In the midst of strangers, law reaches
it's highest level or Stanley Diamond.

453
00:32:15,030 --> 00:32:17,600
The progress of law consists in the
destruction of every

454
00:32:17,600 --> 00:32:22,990
national, natural tie in a continued
process of separation and isolation.

455
00:32:22,990 --> 00:32:25,700
And there's actually one more statement
which I

456
00:32:25,700 --> 00:32:27,050
threw out cuz I wasn't sure whether it was

457
00:32:29,210 --> 00:32:31,000
quite right but I think it is now.

458
00:32:31,000 --> 00:32:36,838
Mutually, law is more reliable than all

459
00:32:36,838 --> 00:32:43,190
our forgetful loves, our tears so quickly
dry.

460
00:32:43,190 --> 00:32:45,440
I think it's relevant to that as well.

461
00:32:45,440 --> 00:32:45,940
Okay.

462
00:32:48,580 --> 00:32:53,039
Also intriguingly, but again, this is
harking way back, past Shecandas.

463
00:32:55,100 --> 00:32:57,500
In the 70s I guess when, when he was all
the rage.

464
00:32:58,700 --> 00:33:02,960
Where you have the commodity form and the
relation of the commodity form, actually

465
00:33:02,960 --> 00:33:10,170
requiring and forming law as a kind of
independent entity.

466
00:33:10,170 --> 00:33:15,300
So coming to the final pharoah then in
this field of law and society.

467
00:33:15,300 --> 00:33:17,060
I've already applied a few.

468
00:33:17,060 --> 00:33:21,860
Laws established distinctness is
heightened, or even as it

469
00:33:21,860 --> 00:33:26,830
remains formatively tied to society by
remarkable little book.

470
00:33:26,830 --> 00:33:31,750
I think first came out in the 1970s,
second edition about 20 years later.

471
00:33:31,750 --> 00:33:32,250
And

472
00:33:33,930 --> 00:33:36,650
I don't think it really has had a lot of
attention.

473
00:33:36,650 --> 00:33:37,219
It's had some.

474
00:33:38,350 --> 00:33:43,510
[UNKNOWN] towards responsive law, law in
society in transition.

475
00:33:45,070 --> 00:33:49,410
Which is refreshingly brief and they
certainly pack, pack a lot in.

476
00:33:51,074 --> 00:33:56,687
That's a toward, toward responsive law,
law and society and transition.

477
00:33:56,687 --> 00:34:01,180
Now they adopt what they call a social
science approach, it seems to be so, and

478
00:34:01,180 --> 00:34:03,970
they sketch what they call a development
of

479
00:34:03,970 --> 00:34:09,710
free modalities of basic states of law in
society.

480
00:34:09,710 --> 00:34:12,140
One is law as a servant of repressive
power.

481
00:34:13,290 --> 00:34:16,730
Two is law as a differentiated institution
capable

482
00:34:16,730 --> 00:34:21,550
of taming repression, and protecting it's
own integrity.

483
00:34:21,550 --> 00:34:28,570
Now I think for that they feel that law
has to as it were defer in relation to the

484
00:34:28,570 --> 00:34:31,080
power it claims for itself, and adopt a
fairly

485
00:34:31,080 --> 00:34:34,010
limited range of what it can, or sorry,
not entirely.

486
00:34:34,010 --> 00:34:37,068
But a fairly limited range of what it can,
can't do.

487
00:34:37,068 --> 00:34:43,440
But finally, law as a facilitator of
response, to social needs and aspirations.

488
00:34:45,080 --> 00:34:46,860
And what is most distinctive for them
about

489
00:34:46,860 --> 00:34:50,280
this topology, and this is their ultimate
concern, is

490
00:34:50,280 --> 00:34:53,500
a responsive legal order, more open to
social

491
00:34:53,500 --> 00:34:56,959
influence, and more effective in dealing
with social problems.

492
00:34:58,720 --> 00:35:00,540
And I talk about Supreme Court in the
United States

493
00:35:00,540 --> 00:35:03,220
doing that sort of thing these days and so
on.

494
00:35:04,370 --> 00:35:06,310
They do say however, that the danger of

495
00:35:06,310 --> 00:35:09,660
this is by being too responsive and
absorbing too

496
00:35:09,660 --> 00:35:12,637
much in, you run the risk of dissipation,

497
00:35:12,637 --> 00:35:16,189
of falling apart, and not being very, very
effective.

498
00:35:17,600 --> 00:35:21,840
So, you have to have some kind of solidity
or stolidity.

499
00:35:21,840 --> 00:35:24,790
I think, however, that they do miss

500
00:35:24,790 --> 00:35:27,780
a rather important dimension about
responsiveness here though.

501
00:35:27,780 --> 00:35:32,500
And I, I was reminded, and this is
something I've inflicted on some of you

502
00:35:32,500 --> 00:35:38,650
yesterday, of, and that produces novel,
The Leopard.

503
00:35:38,650 --> 00:35:43,910
Where at the time of the [UNKNOWN] in
Italy the the nephew of the very

504
00:35:43,910 --> 00:35:49,230
conservative count who is very much
against the [UNKNOWN] and the, and the

505
00:35:49,230 --> 00:35:54,240
liberal govermentality that that the
Italians are wanting to adopt.

506
00:35:55,410 --> 00:35:57,849
And he wants things to stay exactly the
same.

507
00:35:59,270 --> 00:36:00,640
And [UNKNOWN] says to him.

508
00:36:00,640 --> 00:36:03,290
He says well, if you want things to stay

509
00:36:03,290 --> 00:36:05,730
the same, everything is going to have to
change.

510
00:36:07,480 --> 00:36:10,690
Which is beautiful because if you want to
hold

511
00:36:10,690 --> 00:36:14,290
onto you know, something and keep it the
same.

512
00:36:14,290 --> 00:36:18,340
Somewhat paradoxically you have to be able
to adjust it continually to

513
00:36:18,340 --> 00:36:21,700
everything that would come to it and
require it to be different.

514
00:36:21,700 --> 00:36:23,970
So responsiveness is not just pure
responsiveness.

515
00:36:23,970 --> 00:36:28,840
Responsiveness is also in some, in some
way integrated with the

516
00:36:28,840 --> 00:36:34,390
imperative of continuity, determinacy and
so on as well.

517
00:36:34,390 --> 00:36:36,220
So, it's a dynamic interaction.

518
00:36:36,220 --> 00:36:40,369
Now, they do recognize that in kind of
schematic terms, because they do say.

519
00:36:42,040 --> 00:36:48,540
That all institutions establish a, a
conflict between integrity and openness

520
00:36:50,660 --> 00:36:52,850
and they find a similar dilemma that

521
00:36:52,850 --> 00:36:55,770
occupies modern society sketched, that I
sketched earlier.

522
00:36:57,410 --> 00:37:04,010
The dilemma that's involved in law being
somehow determinant,

523
00:37:04,010 --> 00:37:09,530
and the part and the law that responds to,
to, to other, to other powers.

524
00:37:13,620 --> 00:37:17,400
But just to emphasize, just, seemingly
going back on what I just

525
00:37:17,400 --> 00:37:21,750
said, this law, nonetheless, has to be
utterly responsive, it has to be.

526
00:37:21,750 --> 00:37:26,970
Illimitable if it's going to serve, if you
like it's very function,

527
00:37:26,970 --> 00:37:31,770
in crude terms, of serving an illimitable
claim of society or sovereignty that

528
00:37:31,770 --> 00:37:37,080
in itself requires of it that it be
illimitable as well and there

529
00:37:37,080 --> 00:37:40,629
has in conjunction with it to be a point
apart from that illimitability.

530
00:37:42,050 --> 00:37:46,360
Where it can be brought together in
specific determinations

531
00:37:46,360 --> 00:37:49,310
that that we look to law to provide for
us.

532
00:37:50,640 --> 00:37:55,260
So the disparity, between those seemingly
disparity between those two things I'm

533
00:37:55,260 --> 00:38:00,529
saying matches the seeming disparity in
the constitution of the social itself.

534
00:38:02,420 --> 00:38:07,465
The imperative to be both located in some
determinate way, but utterly,

535
00:38:07,465 --> 00:38:12,950
illimitably responsive in this abstract
and general sense that, that Williams

536
00:38:12,950 --> 00:38:18,459
also emphasizes.

537
00:38:18,459 --> 00:38:22,884
My argument then would be, that what

538
00:38:22,884 --> 00:38:28,350
impels the relation between law and modern

539
00:38:28,350 --> 00:38:34,740
society, is the block that I referred to
awhile ago now

540
00:38:34,740 --> 00:38:40,846
on societies being able to resort to some
kind of positive determination.

541
00:38:40,846 --> 00:38:46,200
Without more.

542
00:38:46,200 --> 00:38:51,280
Because the resort to positive
determination counteracts, or

543
00:38:51,280 --> 00:38:55,370
would reveal the reliance on the negative
universal reference.

544
00:38:59,220 --> 00:39:00,970
There are various ways this has got around
but

545
00:39:00,970 --> 00:39:04,740
I am confining it obviously to the
relation to law.

546
00:39:06,530 --> 00:39:11,670
Law in relation to society then, comes on
to the scene to provide

547
00:39:11,670 --> 00:39:17,260
that positive determining, determinative
reference which society

548
00:39:17,260 --> 00:39:21,910
itself cannot provide in an enforceable
way.

549
00:39:21,910 --> 00:39:27,010
Because this would be to a certain
transcendent capacity in

550
00:39:27,010 --> 00:39:31,270
a positive sense, and that of course is
most un-modern.

551
00:39:31,270 --> 00:39:33,380
So it's all coming together in a sense,
around

552
00:39:33,380 --> 00:39:36,350
this question of the relation between law
and society.

553
00:39:36,350 --> 00:39:40,950
That, society finds itself in a situation

554
00:39:40,950 --> 00:39:44,640
where it's constituted negatively
absorbing natures infinite nothing.

555
00:39:45,980 --> 00:39:51,695
It finds itself in a situation where if it
were a, a, I'm sorry, and, and

556
00:39:51,695 --> 00:39:54,920
then it adopts it, it gets around, that

557
00:39:54,920 --> 00:39:59,160
gets around it's actual resort to a
transcendent reference.

558
00:39:59,160 --> 00:40:05,850
A transcendent reference that comes from
it's ilimitability it's dyadic sweep, if

559
00:40:05,850 --> 00:40:09,470
you like, in terms of the claims that it
will make for itself.

560
00:40:09,470 --> 00:40:13,430
And the ability to bring that into a
situated scene which

561
00:40:13,430 --> 00:40:17,780
ran society or that particular society up
to a position of transcendence.

562
00:40:17,780 --> 00:40:19,760
You have a transcendent claim.

563
00:40:19,760 --> 00:40:21,840
Based in negativity, law comes on

564
00:40:21,840 --> 00:40:24,260
the scene and provides the positive
enforceable

565
00:40:24,260 --> 00:40:29,430
reference which helps, in a sense, society
to get around that particular problem.

566
00:40:29,430 --> 00:40:31,610
It helps society to get around that
particular problem

567
00:40:31,610 --> 00:40:36,620
because law itself does not assume any
enduring positivity.

568
00:40:38,330 --> 00:40:41,726
As Blancher puts it, to law alone, pure
transcendence.

569
00:40:41,726 --> 00:40:48,934
Law continually vacates it's existing
content, and assumes

570
00:40:48,934 --> 00:40:57,200
some other determinative some other
determinative form.

571
00:40:57,200 --> 00:41:02,550
And here I'm not just talking about the
the discrete,

572
00:41:02,550 --> 00:41:05,180
or the distinct legal decisions in the
court room or so

573
00:41:05,180 --> 00:41:09,290
on, this whole tension is played out in
the very

574
00:41:09,290 --> 00:41:12,610
question of whether you can have a legal
system, for example.

575
00:41:13,650 --> 00:41:16,910
The very question, you know, which has
plagued

576
00:41:16,910 --> 00:41:21,230
jurisprudence, for ages, about the unity
of law.

577
00:41:21,230 --> 00:41:27,500
Our variability to group

578
00:41:27,500 --> 00:41:32,620
law together into distinct field or
distinct areas depends upon the, the,

579
00:41:32,620 --> 00:41:35,560
the decision we make, in a sense the

580
00:41:35,560 --> 00:41:39,180
formative decision we make in resolving
that particular tension.

581
00:41:40,210 --> 00:41:45,802
And I think transnational law you know
which is pretty big here, I see.

582
00:41:45,802 --> 00:41:51,289
More or less fits that kind of scheme
beautifully, because it manages

583
00:41:51,289 --> 00:41:56,776
to be a a community of communities of law,
if you see what I mean.

584
00:41:56,776 --> 00:42:00,934
That the, incredibly diverse elements or.

585
00:42:01,940 --> 00:42:03,990
Signs of occupation if you like, that are

586
00:42:05,010 --> 00:42:10,020
th, th, th, that are the tran,
transnational

587
00:42:10,020 --> 00:42:12,090
laws that are brought into force can
somehow

588
00:42:12,090 --> 00:42:16,990
connect and disconnect without any kind of
sovereign, affirmation.

589
00:42:16,990 --> 00:42:20,179
That dynamic is within, is within law
itself.

590
00:42:21,870 --> 00:42:22,490
Okay, now.

591
00:42:24,550 --> 00:42:27,380
That's the end of law and society one.

592
00:42:27,380 --> 00:42:29,220
One might then say that I haven't

593
00:42:29,220 --> 00:42:33,860
done anything more than refine the
dependence of,

594
00:42:33,860 --> 00:42:39,149
law, if you like, on some kind of society
and just presented it in another guise.

595
00:42:40,760 --> 00:42:42,610
So I'd be aligning Law of the Title Boden

596
00:42:42,610 --> 00:42:45,370
Society in saying, well, that's, that's
what it now does.

597
00:42:45,370 --> 00:42:50,090
But I now want to finally and all too
briefly, I'm afraid, make

598
00:42:50,090 --> 00:42:55,200
a rather stronger claim for law in it's,
in it's relation to society.

599
00:42:55,200 --> 00:42:55,700
And

600
00:42:57,510 --> 00:42:58,190
that is to say.

601
00:42:59,210 --> 00:43:01,180
A law that escapes what [UNKNOWN] calls

602
00:43:01,180 --> 00:43:06,020
the already established, already stifling
reign of society.

603
00:43:06,020 --> 00:43:12,490
And can be seen as congruent with society
in a less constrained sense.

604
00:43:15,610 --> 00:43:18,600
This might seem a bit perverse, but I'm
going to Rousseau.

605
00:43:18,600 --> 00:43:19,830
to, to, to kick it off.

606
00:43:22,400 --> 00:43:24,220
In the, in the, the social contract,

607
00:43:26,510 --> 00:43:27,640
so I'm looking poorly now, should be

608
00:43:27,640 --> 00:43:29,730
saying that in another language [UNKNOWN]
anyway.

609
00:43:29,730 --> 00:43:31,215
I won't inflict my French on you.

610
00:43:31,215 --> 00:43:33,000
[LAUGH] There's enough of that over lunch.

611
00:43:34,000 --> 00:43:38,259
so, he makes a remarkable assertion.

612
00:43:40,130 --> 00:43:45,700
That law in a sense is exactly
identifiable with

613
00:43:45,700 --> 00:43:49,110
society and in some sense precedes society
because, he says.

614
00:43:49,110 --> 00:43:52,430
If we want to be what we are as a result

615
00:43:52,430 --> 00:43:56,660
of the social contract and make laws as a
result of

616
00:43:56,660 --> 00:44:00,080
being in that social contract, being in
society, being what he

617
00:44:00,080 --> 00:44:03,855
calls a people, and then some other
location he calls a nation.

618
00:44:03,855 --> 00:44:06,940
If you want to do that, we would already
have

619
00:44:06,940 --> 00:44:10,600
to be like that, before we actually form
the contract.

620
00:44:13,300 --> 00:44:16,160
Which doesn't sound very helpful, does it,
anyway?

621
00:44:16,160 --> 00:44:17,870
He then says.

622
00:44:17,870 --> 00:44:22,370
He fills in that, the gap, he says, by
positing what he calls a lawgiver.

623
00:44:22,370 --> 00:44:28,840
And this lawgiver, and there's this
wonderful, phrase he, he

624
00:44:28,840 --> 00:44:31,840
says, gods would be needed to give men
laws, okay?

625
00:44:31,840 --> 00:44:37,110
And this lawgiver occupies that kind of a
slot.

626
00:44:37,110 --> 00:44:39,840
The, the, the, the, the god slot if that's
not too irreverent, okay?

627
00:44:41,430 --> 00:44:46,850
The task that the lawgiver has to fulfill

628
00:44:48,280 --> 00:44:50,801
can't, is beyond he says, beyond human
powers.

629
00:44:51,860 --> 00:44:57,650
But nonetheless it's a task which he sees
as imperative and necessary in the world.

630
00:44:58,750 --> 00:45:02,059
Now the characteristics of this lawgiver
are very interesting, I think.

631
00:45:03,280 --> 00:45:10,210
The lawgiver has to have no kind of
material interests in the society.

632
00:45:11,740 --> 00:45:15,100
In terms of Raymond Williams distinction
there can't be that kind

633
00:45:15,100 --> 00:45:18,392
of an immediate relation to society in
terms of its immediacy.

634
00:45:18,392 --> 00:45:21,275
It's very general and very abstract

635
00:45:25,809 --> 00:45:30,756
In other words, the law giver has to be
com-, a kind of a, of

636
00:45:30,756 --> 00:45:34,248
a acuity that's completely opened to, to

637
00:45:34,248 --> 00:45:39,736
possibility to the determination of things
ever otherwise.

638
00:45:41,864 --> 00:45:46,852
Quite apart from the people, but
ultimately, of course, very much

639
00:45:46,852 --> 00:45:52,910
identifying in some way with the people
when the law's being brought to bear.

640
00:45:54,270 --> 00:45:59,880
And this lawgiver exhibits, according to
Rousseau, a superior intelligence, has

641
00:45:59,880 --> 00:46:02,880
a great soul, and he goes on and on about
it, actually.

642
00:46:02,880 --> 00:46:09,010
But these attributes are but analogies for
the dimension of law drained of attachment

643
00:46:10,100 --> 00:46:15,820
and to anything material and constantly
attuned beyond the existent.

644
00:46:17,000 --> 00:46:18,049
Now what I'd like to suggest.

645
00:46:19,110 --> 00:46:23,130
Is that there's an affinity, bit of an
evasive term, but anyway, an affinity

646
00:46:23,130 --> 00:46:29,570
between what Rousseau sees as law here and
certain notions of law in relation

647
00:46:29,570 --> 00:46:34,790
to society, which we find inevitably, of
course, in post structural philosophy.

648
00:46:37,160 --> 00:46:40,040
And I'll just take a statement of
Derrida's and a

649
00:46:40,040 --> 00:46:42,940
bit more of Derrida after that to, to
bring that

650
00:46:42,940 --> 00:46:47,380
home, as it were, where he describes, in
the Politics

651
00:46:47,380 --> 00:46:52,040
of Friendship, what he calls a law of
originally sociability.

652
00:46:54,280 --> 00:46:58,910
Now, I've read this so many times, it
seems coherent, but it might be.

653
00:46:58,910 --> 00:46:59,910
Let's try.

654
00:46:59,910 --> 00:47:06,300
He says this law of originary sociability,
he, he finds in the relation to the other.

655
00:47:07,900 --> 00:47:12,720
A relation prior, he says, to all all
organized [UNKNOWN].

656
00:47:12,720 --> 00:47:14,100
Prior to all, and this is his

657
00:47:14,100 --> 00:47:18,140
emphasis, determined law, prior to all
determined law.

658
00:47:18,140 --> 00:47:21,210
But not prior to law in general.

659
00:47:21,210 --> 00:47:24,270
Echo of Raymond Williams again, General
Notion of Society.

660
00:47:24,270 --> 00:47:26,540
Not prior to law in general.

661
00:47:26,540 --> 00:47:29,960
This law, he says, of originary
sociability being also

662
00:47:29,960 --> 00:47:33,420
a law, perhaps, he says, the very essence
of law.

663
00:47:37,430 --> 00:47:40,660
Yeah, [LAUGH] I think we can get a more
situated

664
00:47:40,660 --> 00:47:45,880
sense of that law by looking at his
engagement with hospitality.

665
00:47:47,110 --> 00:47:49,350
And what he calls the law of hospitality.

666
00:47:50,900 --> 00:47:52,710
So if I could just run through that
briefly.

667
00:47:55,170 --> 00:47:58,210
And this might raise more questions than
it answers, but let me try.

668
00:48:00,350 --> 00:48:04,320
For Derrida hospitality is unconditional,
imperatively unconditional.

669
00:48:04,320 --> 00:48:06,100
And this is the way he puts it.

670
00:48:06,100 --> 00:48:09,760
Only an unconditional hospitality can give
meaning

671
00:48:09,760 --> 00:48:14,120
and practical rationality to a concept of
hospitality.

672
00:48:14,120 --> 00:48:17,720
Unconditional hospitality exceeds
juridical.

673
00:48:17,720 --> 00:48:23,320
Political or economic calculations that no
thing and no one happens or arrives

674
00:48:23,320 --> 00:48:29,820
without it, in its unconditional relation
to alterity to the other

675
00:48:29,820 --> 00:48:34,700
in the ethos of hospitality for anything
to, to, it to happen, he say.

676
00:48:36,660 --> 00:48:42,440
Yet, a conditional, or conditioned
hospitality is also fiderta imparative.

677
00:48:42,440 --> 00:48:45,120
And this is the way he puts that,

678
00:48:45,120 --> 00:48:50,100
the unconditional law of hospitality needs
the conditional rules.

679
00:48:50,100 --> 00:48:51,730
It requires them, he said.

680
00:48:51,730 --> 00:48:53,803
That's his emphasis again, he emphasizes a
lot.

681
00:48:53,803 --> 00:48:55,168
It requires them.

682
00:48:55,168 --> 00:48:58,220
This demand is constitutive he says.

683
00:48:58,220 --> 00:49:01,650
It wouldn't be effectively unconditional
the law if

684
00:49:01,650 --> 00:49:05,560
it didn't have to become effective,
concrete, determined.

685
00:49:06,630 --> 00:49:11,870
So we have hospitality, the law of
hospitality, the law requiring

686
00:49:11,870 --> 00:49:17,710
both this utter unconditional
responsiveness,

687
00:49:17,710 --> 00:49:22,210
and a determinate affirmation.

688
00:49:22,210 --> 00:49:25,730
In some he says, political, juridical, and

689
00:49:25,730 --> 00:49:29,500
ethical responsibilities have their place,
if they

690
00:49:29,500 --> 00:49:32,580
take place, only in this transaction
between

691
00:49:32,580 --> 00:49:36,760
these two hospitalities, the unconditional
and the conditional.

692
00:49:38,600 --> 00:49:42,720
So the two things are absolutely essential
for each other even

693
00:49:42,720 --> 00:49:46,810
as they have to remain as it were, apart
from each other.

694
00:49:48,690 --> 00:49:50,960
If the unconditional were allowed to run
rampant as

695
00:49:50,960 --> 00:49:55,029
it were, you'd have made the solution and
dissipation.

696
00:49:56,820 --> 00:50:02,360
If the conditioned assumed some kind of
dominance you'd have

697
00:50:02,360 --> 00:50:06,540
say the position in Lampaduca's The
Lepord, where you'd have

698
00:50:06,540 --> 00:50:10,410
the staff which would very soon cease to
relate at

699
00:50:10,410 --> 00:50:15,369
all effectively to a world inexorably
changing, changing around it.

700
00:50:16,550 --> 00:50:21,460
As Derrida says, summarily, in their very
heterogeneity,

701
00:50:21,460 --> 00:50:25,120
these two things are under-sociable, and
they're very different.

702
00:50:25,120 --> 00:50:27,580
They have to be, as it were, together.

703
00:50:28,820 --> 00:50:35,139
So, returning to law and society, then, we
have a law that melds into both.

704
00:50:36,310 --> 00:50:39,970
Of the different strands which, which go
to make up society.

705
00:50:41,010 --> 00:50:42,890
With one there is a determinate law that

706
00:50:42,890 --> 00:50:46,860
is somehow apart from and impacts on
society.

707
00:50:46,860 --> 00:50:49,148
With the other we have a law

708
00:50:49,148 --> 00:50:54,889
that is intrinsically responsive and
derivative from society.

709
00:50:56,000 --> 00:50:59,000
There's a continuate coming together
inextricably these

710
00:50:59,000 --> 00:51:02,920
two elements in and as a legal
determination.

711
00:51:04,270 --> 00:51:06,140
And as I suggested earlier on the
termination

712
00:51:06,140 --> 00:51:07,940
not just in the particular decision but in
the

713
00:51:07,940 --> 00:51:13,960
very form and formation of what we take to
be areas of law, areas of life and law.

714
00:51:13,960 --> 00:51:16,410
And legal systems.

715
00:51:18,230 --> 00:51:20,420
Some of these, of course I'm not saying

716
00:51:20,420 --> 00:51:22,890
that everything's always changing, and
responsive, and marvelous.

717
00:51:22,890 --> 00:51:26,450
Some, particular determinations can last a
very long time.

718
00:51:26,450 --> 00:51:30,472
For example, the, the nation has for too

719
00:51:30,472 --> 00:51:36,790
long provided the paradigm of dominant
notion of law.

720
00:51:36,790 --> 00:51:38,350
So much so that it was only

721
00:51:38,350 --> 00:51:41,080
fairly recently in terms of jurisponential
thought

722
00:51:41,080 --> 00:51:42,960
that things like international law were
actually

723
00:51:42,960 --> 00:51:44,910
thought to be properly law in any way.

724
00:51:44,910 --> 00:51:46,160
Still struggling with that one.

725
00:51:49,480 --> 00:51:53,370
But that's because the model elevated
quite arbitrarily.

726
00:51:53,370 --> 00:51:55,630
Hart, for example, in the concept of law,
just

727
00:51:55,630 --> 00:51:57,580
says right at the beginning, well, law is
municipal law.

728
00:51:57,580 --> 00:51:58,410
That's what I am going to look at.

729
00:51:58,410 --> 00:52:01,870
Then he's got a very uncomfortable chapter
somewhere, I seem to remember, I'm

730
00:52:01,870 --> 00:52:04,040
looking a bit sheepishly at France right
here, so I better be careful.

731
00:52:05,160 --> 00:52:08,630
So there, there's a very uncomfortable
chapter

732
00:52:08,630 --> 00:52:12,020
then on, on what international law might
be.

733
00:52:14,420 --> 00:52:20,090
So we have law returning to Foucault's
sketch of liberal society

734
00:52:22,200 --> 00:52:25,120
we have a law which is in liberal and near
liberal

735
00:52:25,120 --> 00:52:29,880
societies a rule of law, law as a
unlimitable and uninhibited.

736
00:52:29,880 --> 00:52:33,910
But a law which in it's specific
determinate relations can indeed be

737
00:52:33,910 --> 00:52:38,990
quite strikingly and at times enduringly
limited, such as law in relation to

738
00:52:38,990 --> 00:52:43,970
the labor relation, law in relation to the
extent to which judicial review will

739
00:52:43,970 --> 00:52:50,410
intervene, in the prison, for example, or
control systems of, of migration.

740
00:52:50,410 --> 00:52:54,960
None of this is a fixed border, the
horizon is never.

741
00:52:54,960 --> 00:52:58,320
Their containing law ultimately, but
nonetheless, you do have quite

742
00:52:58,320 --> 00:53:04,290
persistent blocks, which of course, emerge
from from time to time.

743
00:53:05,460 --> 00:53:07,600
Now all of that leaves me then with a

744
00:53:07,600 --> 00:53:13,249
concluding challenge, the challenge of
saying or trying to say.

745
00:53:14,270 --> 00:53:18,640
What the efficacy, what the force of this
responsive dimension, which I've

746
00:53:18,640 --> 00:53:24,060
obviously been trying to sell, this
responsive dimension of law happens to be.

747
00:53:24,060 --> 00:53:27,940
This evanescently responsive law, which
does not seem to have

748
00:53:30,780 --> 00:53:31,350
any kind of.

749
00:53:32,780 --> 00:53:35,240
Palpable identity that we can seize on.

750
00:53:37,300 --> 00:53:43,610
For Dereda, this is a law which not only
remains to come, but remains by coming.

751
00:53:47,310 --> 00:53:50,140
Ever open to what he calls the coming of
the other.

752
00:53:51,290 --> 00:53:57,190
He says, it deploys the very discourse of
events irreducibly, irreducibly to come.

753
00:53:58,200 --> 00:54:02,580
It has, he says, no horizon of
expectation.

754
00:54:02,580 --> 00:54:06,440
It is rather an imperative necessarily
present.

755
00:54:07,700 --> 00:54:10,480
A response that is ever and already there.

756
00:54:12,180 --> 00:54:14,300
There it's coming but there.

757
00:54:14,300 --> 00:54:19,130
I mean the very comingness if you like is,
is within

758
00:54:19,130 --> 00:54:22,840
the determinacy of what it may be for the
time being.

759
00:54:23,950 --> 00:54:27,720
It is, Deirdre would add, with I think

760
00:54:27,720 --> 00:54:32,710
a nuanced irony, a force, that is a
weakness.

761
00:54:34,200 --> 00:54:38,640
But a force he says, capable of making the
weakest, strongest.

762
00:54:39,910 --> 00:54:43,435
And law's insistent, [INAUDIBLE] could add
point to his

763
00:54:43,435 --> 00:54:47,660
con, concluding, to his concluding, that
one says to oneself.

764
00:54:47,660 --> 00:54:53,068
One knows that in the end, true force is
on the side of the oppressed.

765
00:54:53,068 --> 00:54:54,220
Thank you.

766
00:54:54,220 --> 00:55:02,540
[SOUND]
>> So we have.

767
00:55:02,540 --> 00:55:04,596
About 20 minutes for questions.

768
00:55:04,596 --> 00:55:08,096
Now, because this is being recorded, I
will have to ask you

769
00:55:08,096 --> 00:55:11,957
to use one of the microphones, or is there
only one microphone?

770
00:55:11,957 --> 00:55:12,461
>> Only one.

771
00:55:12,461 --> 00:55:13,228
>> There's only one microphone.

772
00:55:13,228 --> 00:55:17,258
So we will need to act cooperatively, and
make sure that the flow of questions

773
00:55:17,258 --> 00:55:21,412
goes from one side to the other that you
will stand up, right on the microphone.

774
00:55:21,412 --> 00:55:25,204
>> You'll have to have a sufficiently
responsive regard to to that imperative.

775
00:55:25,204 --> 00:55:27,436
>> So be like the law.

776
00:55:27,436 --> 00:55:31,092
[LAUGH] So an, any questions?

777
00:55:31,092 --> 00:55:31,676
Okay.

778
00:55:31,676 --> 00:55:38,100
Professors [INAUDIBLE].

779
00:55:38,100 --> 00:55:43,260
>> Thank you, thank you very much
Professor Filtzpatrick, for your lecture.

780
00:55:43,260 --> 00:55:48,060
Allow me to, well, that would be immodest
to say,

781
00:55:48,060 --> 00:55:52,640
invite you, but to maybe ask you whether
you could

782
00:55:52,640 --> 00:55:57,660
consider what might be the step, no the
step that

783
00:55:57,660 --> 00:56:01,940
would follow an analysis that focuses on
these two thinkers.

784
00:56:01,940 --> 00:56:04,540
Especially in this time and context that
we are in now.

785
00:56:06,800 --> 00:56:11,740
There's so much talk about, you know, law
having to incorporate views from other

786
00:56:11,740 --> 00:56:19,520
sciences, and to unfold in a much more
enriched and contextual discourse.

787
00:56:19,520 --> 00:56:22,100
And so political philosophy and philosophy
as such, of

788
00:56:22,100 --> 00:56:27,630
course, are important contenders, but
there's so much horrible talk

789
00:56:27,630 --> 00:56:31,320
about law just having to become inter
disciplinary that right

790
00:56:31,320 --> 00:56:35,370
now politics is really difficult to locate
in legal discourse.

791
00:56:35,370 --> 00:56:39,090
So some people do this kind of work, but
many others just

792
00:56:39,090 --> 00:56:43,900
think it's enough to deal with law having
gone transnational, having gone global.

793
00:56:43,900 --> 00:56:46,360
By making it interdisciplinary.

794
00:56:46,360 --> 00:56:49,790
And one of the great thought is of your
lecture just now is

795
00:56:49,790 --> 00:56:53,790
to show that, that of course has always
been a challenge for law.

796
00:56:53,790 --> 00:56:57,600
And has always been the only way to think
of law as law in context.

797
00:56:58,810 --> 00:57:04,380
But now, even after the financial crisis
there is so little of that, really done.

798
00:57:04,380 --> 00:57:08,010
And if it's done, it remains, you know,
confined to

799
00:57:08,010 --> 00:57:12,920
a very small set of scholars but also of
discourses.

800
00:57:12,920 --> 00:57:15,340
And so, much of that is done in
international law.

801
00:57:16,760 --> 00:57:19,590
But one wonders really where you know,

802
00:57:19,590 --> 00:57:22,800
where we might find opportunities to build
bridges

803
00:57:22,800 --> 00:57:25,420
between those scholars that worry about
law, how

804
00:57:25,420 --> 00:57:29,020
it transcends the nation state or
municipal law.

805
00:57:29,020 --> 00:57:30,960
And the law of the economy, because the
law

806
00:57:30,960 --> 00:57:34,340
of the economy and that's where you
started off with.

807
00:57:34,340 --> 00:57:37,620
That just precedes untouched.

808
00:57:39,330 --> 00:57:43,700
The, a lot of this discourse continues as
if nothing has never happened.

809
00:57:43,700 --> 00:57:47,210
As if there had been no real
globalization, if there had been

810
00:57:47,210 --> 00:57:51,500
no end of history or contestation there of
or no financial crisis.

811
00:57:55,946 --> 00:57:56,446
>> yeah,

812
00:58:01,040 --> 00:58:03,440
I mean, in an immediate kinda sense,

813
00:58:05,610 --> 00:58:08,600
I guess I would say law is political.

814
00:58:08,600 --> 00:58:10,760
I mean, that, that very kind of contention

815
00:58:11,800 --> 00:58:16,100
that I'm talking about is an
extinguishably political.

816
00:58:16,100 --> 00:58:20,014
But in a kind of an applied way, if you
look at the

817
00:58:20,014 --> 00:58:26,370
eliminabiliity of law, if one accepts
that,

818
00:58:26,370 --> 00:58:32,610
then whenever and you know blowing the

819
00:58:32,610 --> 00:58:38,240
dust off that First talk I gave at Osgood
sort of reminded me of this actually.

820
00:58:38,240 --> 00:58:40,830
So thanks very much for providing an
answer to your question.

821
00:58:42,180 --> 00:58:46,160
Was that it, the law kept coming up
against these

822
00:58:46,160 --> 00:58:51,020
kind of, you know, seemingly systematic
constraints, in relation to

823
00:58:51,020 --> 00:58:53,390
labor relation and, and so on and there
are various

824
00:58:53,390 --> 00:58:56,410
other instances I gave which, thank you
for reminding me of.

825
00:58:56,410 --> 00:58:56,910
That's

826
00:58:59,100 --> 00:59:01,500
the politics, you know, I mean, that's,
those not

827
00:59:01,500 --> 00:59:03,830
comfortable there and people keep
challenging it all the

828
00:59:03,830 --> 00:59:07,700
time, and keep challenging that particular
division of, and,

829
00:59:07,700 --> 00:59:12,010
and, and arrogation of a particular type
of power.

830
00:59:12,010 --> 00:59:17,690
Another instance of laws, you know, divine
dissatisfaction, if you like, would

831
00:59:17,690 --> 00:59:24,140
be the persistent inextinguishable
irresolution between law and sovereignty.

832
00:59:24,140 --> 00:59:29,450
You know this is something that under the,
late

833
00:59:29,450 --> 00:59:32,900
and non lamented you know reign of George
W.Bush.

834
00:59:32,900 --> 00:59:35,750
Was coming up all the time you know, claim
to a sovereign power

835
00:59:35,750 --> 00:59:39,020
and the counterclaim if you like all the
time in relation to law.

836
00:59:39,020 --> 00:59:42,290
Neither ultimately could win because law
can't

837
00:59:42,290 --> 00:59:45,880
be constrained, and, and sovereignty can't
be constrained.

838
00:59:45,880 --> 00:59:50,650
So, laws, even though you know, it is
incapable

839
00:59:50,650 --> 00:59:54,520
of, of maintaining and enduring content of
its own

840
00:59:54,520 --> 00:59:57,980
in some in-placed, determinate way, it is
always in

841
00:59:57,980 --> 01:00:03,030
a position where it's insipidly disruptive
of anything that's there.

842
01:00:03,030 --> 01:00:05,630
So the resistant ability of law, and this

843
01:00:05,630 --> 01:00:07,400
is what I take Derrida to be talking
about,

844
01:00:07,400 --> 01:00:08,290
in the sense, on the side of the

845
01:00:08,290 --> 01:00:13,610
weakest, at least incipiently and
potentially, is always there.

846
01:00:13,610 --> 01:00:16,110
So I think that would flow on from it.

847
01:00:16,110 --> 01:00:18,830
But one other thing I think would flow on,
would be.

848
01:00:20,940 --> 01:00:27,150
By countering the allegations of say
sovereignty or modern notions

849
01:00:27,150 --> 01:00:33,730
of society itself, and by challenging the
completeness of the claims made for

850
01:00:33,730 --> 01:00:39,970
them, both conceptually and existentially,
you have, the question, well, okay, if

851
01:00:39,970 --> 01:00:42,510
we set on, that on one side, what do we do
now?

852
01:00:43,730 --> 01:00:46,740
And this relates to our other discussions
that we've had.

853
01:00:46,740 --> 01:00:54,055
But what we are then faced with is the
challenge of being with as part of being.

854
01:00:54,055 --> 01:01:01,220
And which, which law would in that sense
drives us to.

855
01:01:01,220 --> 01:01:03,528
And of course so much else [INAUDIBLE]
flow from that of course.

856
01:01:03,528 --> 01:01:10,865
>> [INAUDIBLE]
Thank you so much

857
01:01:10,865 --> 01:01:17,900
Professor Fitzpatrick.

858
01:01:19,350 --> 01:01:21,070
This lecture was just.

859
01:01:21,070 --> 01:01:25,760
A reminder of the fantasies I had before
going to law school.

860
01:01:25,760 --> 01:01:28,630
You get to hear lectures that talk about
everything.

861
01:01:28,630 --> 01:01:34,020
[LAUGH] I guess I wanted to and this must
be, might be just

862
01:01:34,020 --> 01:01:39,660
a small variable quarrel about hospitality
itself but.

863
01:01:39,660 --> 01:01:43,910
It seems to me that, that word, in of
itself.

864
01:01:43,910 --> 01:01:46,911
The very fact that, now, [UNKNOWN], is
changing

865
01:01:46,911 --> 01:01:50,720
from conditional to unconditional, not in
a naive way.

866
01:01:50,720 --> 01:01:57,140
But, in a, in a visionary way in a way to
say that.

867
01:01:57,140 --> 01:02:01,870
That unconditionality cannot be
inherently, just can't

868
01:02:01,870 --> 01:02:04,640
be unconditional, it depends on the
conditions.

869
01:02:04,640 --> 01:02:05,140
>> Yeah.

870
01:02:06,280 --> 01:02:10,760
>> But I guess the, the word itself, the
connotation of hospitality

871
01:02:11,860 --> 01:02:13,420
is something to the effect that

872
01:02:13,420 --> 01:02:16,128
something must have originated before
something else.

873
01:02:16,128 --> 01:02:22,010
Which is fin from a historical point of
view but since we are now talking across

874
01:02:22,010 --> 01:02:26,450
different domains of not just law, my law

875
01:02:26,450 --> 01:02:30,180
and your law, but also law on different
disciplines.

876
01:02:30,180 --> 01:02:30,580
>> Yeah.

877
01:02:30,580 --> 01:02:31,570
>> How would it work?

878
01:02:31,570 --> 01:02:33,800
It would be my law.

879
01:02:33,800 --> 01:02:35,780
Receptive to your anthropology.

880
01:02:35,780 --> 01:02:38,750
My anthropology being receptive to your
law.

881
01:02:38,750 --> 01:02:44,190
Which one should precede not historically
but ontologically which one

882
01:02:44,190 --> 01:02:46,930
should precede the other one and how does
it work?

883
01:02:46,930 --> 01:02:52,890
Do you think that actually may not
possibly jeopardize the.

884
01:02:52,890 --> 01:02:54,370
Concept of hospitality.

885
01:02:54,370 --> 01:02:56,800
Not the concept, but the concept of
reception,

886
01:02:56,800 --> 01:03:00,490
and the possibility of recip-, reciprocity
in some way.

887
01:03:00,490 --> 01:03:00,990
>> Hmm.

888
01:03:03,010 --> 01:03:03,510
Well,

889
01:03:05,390 --> 01:03:11,640
I think, that the scene or scenario which
Darrida

890
01:03:11,640 --> 01:03:17,910
sketches there is incompatible with being
original.

891
01:03:19,200 --> 01:03:21,570
And with a claim to the origin, and

892
01:03:21,570 --> 01:03:25,490
hence a claim to some surpassing point of
initiation.

893
01:03:27,560 --> 01:03:30,580
Or if you wish to adopt such a claim,
you'd

894
01:03:30,580 --> 01:03:34,620
have to show, that it's already dependent
on much that.

895
01:03:34,620 --> 01:03:35,910
Came before it.

896
01:03:35,910 --> 01:03:39,350
And, to sustain it you're dependent on
much that came after it.

897
01:03:39,350 --> 01:03:44,932
In other words, it's impossible to have a
monadic or complete claim to the origin.

898
01:03:44,932 --> 01:03:52,980
That being so, if one accepts that, then,
the hospitality.

899
01:03:52,980 --> 01:03:55,820
Would fit into that scheme of things where
you might

900
01:03:55,820 --> 01:03:58,790
have competing claims, but you could not
say that one was

901
01:04:01,630 --> 01:04:03,330
one, one, one was prior to another.

902
01:04:03,330 --> 01:04:06,929
Perhaps there might be a kind of basic
chronological way in which

903
01:04:06,929 --> 01:04:08,030
you could, you know, you're saying

904
01:04:08,030 --> 01:04:10,930
historically point to something coming
before another.

905
01:04:10,930 --> 01:04:15,380
But in terms of you know our being with.

906
01:04:15,380 --> 01:04:17,640
Each other or being in common rather than
common being.

907
01:04:17,640 --> 01:04:23,020
In those terms you, and, and then looking
at hospitality and the law

908
01:04:23,020 --> 01:04:27,250
of hospitality and hospitality as law it
would not be possible in a sense.

909
01:04:27,250 --> 01:04:30,880
You know, you could not, as it were,
elevate one above the other.

910
01:04:30,880 --> 01:04:33,800
Now I guess one would then ask.

911
01:04:33,800 --> 01:04:35,710
I don't wanna ask myself this but now I
have to.

912
01:04:35,710 --> 01:04:37,440
Now that you pushed me to it.

913
01:04:37,440 --> 01:04:39,480
Where is the question of judgement,
question

914
01:04:39,480 --> 01:04:42,030
of ethics, and so I'm coming to that.

915
01:04:43,440 --> 01:04:45,380
Well it just comes in I think.

916
01:04:45,380 --> 01:04:45,880
I

917
01:04:48,430 --> 01:04:50,730
mean, it's not a relativism.

918
01:04:50,730 --> 01:04:51,580
It's not a.

919
01:04:53,140 --> 01:04:56,140
An unlimited so called hobble with
tolerance.

920
01:04:57,780 --> 01:04:58,760
Anything goes.

921
01:05:00,130 --> 01:05:02,640
It's still tough you know.

922
01:05:02,640 --> 01:05:05,240
Decisions have to be made on a comparative

923
01:05:05,240 --> 01:05:08,790
basis before you form your own determinate
position.

924
01:05:08,790 --> 01:05:14,120
So there is a going out but there's also a
coming from.

925
01:05:14,120 --> 01:05:19,200
And in the coming from there's notions of
judgement, evaluation,

926
01:05:19,200 --> 01:05:23,510
form, formative force that would come into
play, I think.

927
01:05:27,520 --> 01:05:28,060
>> Michael Punit.

928
01:05:30,620 --> 01:05:31,824
>> Thanks professor.

929
01:05:31,824 --> 01:05:34,675
Just a question I guess from the student
perspective.

930
01:05:34,675 --> 01:05:35,435
>> Yeah?

931
01:05:35,435 --> 01:05:38,132
>> It's about that study of law and also

932
01:05:38,132 --> 01:05:41,786
law society or socio legal studies here at
York and

933
01:05:41,786 --> 01:05:45,005
my question is focused on both the I guess
the

934
01:05:45,005 --> 01:05:49,850
learning and teaching of norms if you will
very broadly.

935
01:05:49,850 --> 01:05:54,720
I'm just thinking about, given your talk
about issues of god, relations between

936
01:05:54,720 --> 01:05:58,080
law and society is, law judging society
obviously I think your answer is no.

937
01:05:58,080 --> 01:06:02,480
But as a practical level for, for students
and

938
01:06:02,480 --> 01:06:05,610
also those who teach students, are there
maybe a few

939
01:06:05,610 --> 01:06:09,380
pointers or directions you think that aft,
after having kind

940
01:06:09,380 --> 01:06:13,630
of thought about these issues thought
about the relationships that.

941
01:06:13,630 --> 01:06:20,020
We could advance or, or more productively
teach and learn about norms, about law.

942
01:06:20,020 --> 01:06:24,520
Because sometimes you hear from like
judges and practitioners, you know, let,

943
01:06:24,520 --> 01:06:27,462
let's have something useful for I do, come
out of a law school.

944
01:06:27,462 --> 01:06:28,260
>> [LAUGH] [INAUDIBLE] Yeah.

945
01:06:28,260 --> 01:06:33,430
>> Or you hear people saying that well in
my discipline, law is viewed.

946
01:06:33,430 --> 01:06:36,070
Strictly from disciplinary focus and the
guts of

947
01:06:36,070 --> 01:06:38,440
what actually happens there we're not
really concerned about.

948
01:06:38,440 --> 01:06:41,940
Like, we're just studying strictly from
sociology, anthropology.

949
01:06:41,940 --> 01:06:44,840
What kind of directions or pointers would
you think would

950
01:06:44,840 --> 01:06:49,370
help us do our learning and teaching
better in that area?

951
01:06:50,990 --> 01:06:52,738
>> One abolish legal positivism.

952
01:06:52,738 --> 01:06:57,192
>> [LAUGH]
Ouch.

953
01:06:58,470 --> 01:06:59,338
>> I have done it now.

954
01:06:59,338 --> 01:07:04,164
[LAUGH] Two, have a much more questioning

955
01:07:04,164 --> 01:07:10,270
regard, to put it mildly,to the
disciplinary.

956
01:07:10,270 --> 01:07:17,550
Conceptual boundaries that that, that,
that erected around the, the, the

957
01:07:17,550 --> 01:07:24,580
subjects one is teaching and around the
you know, the contents inside them.

958
01:07:26,420 --> 01:07:28,460
Of course, one can't simply just dissolve
them.

959
01:07:28,460 --> 01:07:31,670
And, you know, they, they are and
insistent and persistent.

960
01:07:31,670 --> 01:07:33,710
Reality in their own right, so to speak.

961
01:07:34,724 --> 01:07:38,546
but, you know, there is more of a dynamism
to

962
01:07:38,546 --> 01:07:43,460
them and it would open up things rather
more effectively.

963
01:07:43,460 --> 01:07:45,580
I mean, over lunch we, for example we were
talking about

964
01:07:46,620 --> 01:07:51,820
the way in which law schools here sort of
responding to various

965
01:07:53,850 --> 01:07:57,020
change is going on, and how that's having
an effect on the

966
01:07:57,020 --> 01:08:00,010
curriculum and, and on, on what's taught
and all the rest of it.

967
01:08:00,010 --> 01:08:04,652
And I was asked you know, does the fact
that the U.K.

968
01:08:04,652 --> 01:08:08,960
is a member of a kind of this thing called
European Community.

969
01:08:10,470 --> 01:08:13,619
Does that have any impact on, on, on the
curriculum, on what's taught?

970
01:08:15,660 --> 01:08:16,660
Which one you think it would.

971
01:08:16,660 --> 01:08:19,990
Because you know, the EC lore is just so
extensive.

972
01:08:19,990 --> 01:08:25,010
It touches every area that we have
anything to do with in the law school.

973
01:08:25,010 --> 01:08:27,000
With one exception which would be
Constitutional law.

974
01:08:27,000 --> 01:08:32,220
Which I have to say, I wasn't bad, I was
quite enjoying it.

975
01:08:34,060 --> 01:08:35,090
no.

976
01:08:35,090 --> 01:08:35,700
No.

977
01:08:35,700 --> 01:08:36,940
It, it, it's madness.

978
01:08:38,170 --> 01:08:40,915
So it would you know, by posing
connections you would

979
01:08:40,915 --> 01:08:43,710
then have to say what are we connecting
with you know.

980
01:08:43,710 --> 01:08:49,120
So if, if, if we're talking about you
know, some,

981
01:08:49,120 --> 01:08:52,590
something in a subject like a teaching
tour or something.

982
01:08:52,590 --> 01:08:54,680
Talking about product liability.

983
01:08:54,680 --> 01:08:59,720
And, you know, the standards that you see
in Sicorn aren't very grateful to it.

984
01:08:59,720 --> 01:09:05,280
Are so much higher than standards that
which they displace within the UK itself.

985
01:09:05,280 --> 01:09:06,910
The food industry gets very upset about
it, you

986
01:09:06,910 --> 01:09:10,590
know, but it's very different to pay off
the sea.

987
01:09:11,680 --> 01:09:15,090
It's much easier doing it internally as it
were.

988
01:09:16,800 --> 01:09:20,592
You know that, that to me will be a
relevant factor,

989
01:09:20,592 --> 01:09:24,621
and it would connect that law more closely
with a, the EC

990
01:09:24,621 --> 01:09:30,230
law and would be practically speaking, I
say I've got that last, practically

991
01:09:30,230 --> 01:09:35,405
speaking, it would amount to you'd be
producing better lawyers.

992
01:09:37,293 --> 01:09:41,389
>> Professor Buchanan.

993
01:09:41,389 --> 01:09:45,781
>> Thank you Professor Fitzpatrick for a
lovely talk, and I know I'll

994
01:09:45,781 --> 01:09:50,940
be having my ah-hah moments many years
hence, as that's my, been my experience.

995
01:09:50,940 --> 01:09:56,780
But I did I, I did admire in particular
the the way in which the

996
01:09:56,780 --> 01:10:02,390
talk, you know, that begins with sort of
the tentacular reach of neoliberalism and

997
01:10:02,390 --> 01:10:05,610
governmentality sort of led us inexorably
to

998
01:10:05,610 --> 01:10:07,810
the opposite conclusion of where I thought
we

999
01:10:07,810 --> 01:10:11,960
were gonna go, which is that the law is on
the side of the oppressed.

1000
01:10:11,960 --> 01:10:13,129
And so my question is about.

1001
01:10:14,770 --> 01:10:19,900
Trying to explore the counter intuitive
aspect of your conclusion.

1002
01:10:19,900 --> 01:10:25,780
And I guess I'm wondering is it, is it the
case then that modern

1003
01:10:25,780 --> 01:10:32,080
law in your view must also be inclusive or
encompassing of.

1004
01:10:32,080 --> 01:10:34,610
Other conceptions of law or other legal
orders

1005
01:10:34,610 --> 01:10:37,950
including indigenous legal orders such as
those that

1006
01:10:37,950 --> 01:10:40,640
would be pre-existent in Canada and that
this

1007
01:10:40,640 --> 01:10:43,050
is referring to other conversations we've
obviously had.

1008
01:10:43,050 --> 01:10:43,150
>> Yeah.

1009
01:10:43,150 --> 01:10:43,980
>> Earlier this week.

1010
01:10:43,980 --> 01:10:44,090
>> Yeah.

1011
01:10:44,090 --> 01:10:47,000
>> And, and I was mindful in particular

1012
01:10:47,000 --> 01:10:49,570
of, sort of the example of hospitality
that

1013
01:10:49,570 --> 01:10:51,670
we saw in the film, The Journals of

1014
01:10:51,670 --> 01:10:54,570
Knud Rasmussen, which is the hospitality
displayed by the.

1015
01:10:54,570 --> 01:10:59,740
Inuit community to the visiting explorers
and the implications of them.

1016
01:10:59,740 --> 01:11:00,880
>> Mm.

1017
01:11:00,880 --> 01:11:04,470
There's some, when I first read the
Derrida his little book on hospitality

1018
01:11:04,470 --> 01:11:07,670
I said, now hang on he's got the wrong
society, that's the better one.

1019
01:11:07,670 --> 01:11:08,570
You know what I mean?

1020
01:11:09,760 --> 01:11:16,220
But now, now it would, and this, you know
might, the coming back to Michael's

1021
01:11:16,220 --> 01:11:21,990
question, it might be a bit too, you know,
dissipating but ye.

1022
01:11:21,990 --> 01:11:27,480
If you adopted that approach to law, you
could not avoid seeing the,

1023
01:11:27,480 --> 01:11:32,630
just say an indigenous law or laws as an
instance.

1024
01:11:32,630 --> 01:11:38,040
You could not avoid the Interactivity if
you like between those

1025
01:11:38,040 --> 01:11:42,050
two things, in which each side of the
equation is constituted.

1026
01:11:42,050 --> 01:11:45,590
Now, one might say in a fairly confident a

1027
01:11:45,590 --> 01:11:47,800
critical or Marxist way or something like
that, that

1028
01:11:47,800 --> 01:11:49,460
oh yes, we've got to see the interactions
to

1029
01:11:49,460 --> 01:11:53,160
see what the dominant, so called dominant
legal system did.

1030
01:11:53,160 --> 01:11:54,460
To those other systems.

1031
01:11:54,460 --> 01:11:54,920
And, you know?

1032
01:11:54,920 --> 01:11:55,160
The horror.

1033
01:11:55,160 --> 01:11:57,250
The horrifying things they did with them.

1034
01:11:57,250 --> 01:12:00,560
But you cannot understand that until you
start to

1035
01:12:00,560 --> 01:12:06,100
try and see what, the effect of the
indigenous

1036
01:12:06,100 --> 01:12:08,740
system would be if it were allowed, you
know,

1037
01:12:08,740 --> 01:12:12,878
a more effective interrelation with the so
called dominant system.

1038
01:12:12,878 --> 01:12:15,800
You can only really get to grips with what
that effect

1039
01:12:15,800 --> 01:12:19,900
is once you see how the other one should
change as well.

1040
01:12:19,900 --> 01:12:23,330
So I, I think a lot of critical work which
of course is wonderful,

1041
01:12:23,330 --> 01:12:28,160
but I, I think a lot of it just assumes
the dominance of those systems.

1042
01:12:29,290 --> 01:12:31,570
I mean it would for start, I mean of
course

1043
01:12:31,570 --> 01:12:35,396
an anchor, mcGuild does a wonderful work
like this I think.

1044
01:12:35,396 --> 01:12:38,800
Where she can, she, she draws out of all
the ingenious

1045
01:12:38,800 --> 01:12:42,056
societies profound philosophical points
about our

1046
01:12:42,056 --> 01:12:44,370
inability just to be by ourselves.

1047
01:12:44,370 --> 01:12:49,110
You know, and with [UNKNOWN] pointed
phrase we cannot be alone being alone.

1048
01:12:49,110 --> 01:12:54,180
And you know so much of of, of, of
indigenous relation.

1049
01:12:54,180 --> 01:12:55,606
Well, but the horrible word that's

1050
01:12:55,606 --> 01:12:58,220
floating around a lot these days,
relationality.

1051
01:12:58,220 --> 01:13:01,930
So particularly, I know some Australian
stuff, which is very strong on this,

1052
01:13:02,950 --> 01:13:11,945
involves, segmentry societies, and so on,
seeing themselves as absolutely, you know,

1053
01:13:13,970 --> 01:13:17,220
Dependently related to other societies
even if they're

1054
01:13:17,220 --> 01:13:19,710
considered to be their enemy in some way.

1055
01:13:19,710 --> 01:13:23,050
I mean Paul and I were discussing the

1056
01:13:23,050 --> 01:13:25,920
render you know just boy it's novel over
lunch.

1057
01:13:26,980 --> 01:13:32,220
And some of the ways in which these people
see themselves being the same I won't

1058
01:13:32,220 --> 01:13:33,775
go into detail of course cuz it's just

1059
01:13:33,775 --> 01:13:37,305
after lunch, but Pretty horrifying, you
know, which are

1060
01:13:37,305 --> 01:13:39,450
then seen as rather barbaric kind of
practices

1061
01:13:39,450 --> 01:13:42,090
or savage practices and, you know, which
he shouldn't

1062
01:13:42,090 --> 01:13:45,950
be writing about in Canada in this, this
day and age and all the rest of it.

1063
01:13:45,950 --> 01:13:48,560
But that portrays a lack of understanding
of what those things were.

1064
01:13:50,230 --> 01:13:54,320
And so the other side, as it were has to
get, get a grip.

1065
01:13:54,320 --> 01:13:56,600
As well if there's going to be a, a kind

1066
01:13:56,600 --> 01:14:03,150
of a transformative practice linking those
two different kinds of society.

1067
01:14:04,910 --> 01:14:07,850
But I, I'd extend that to all sorts of
other relations as well, you know.

1068
01:14:10,800 --> 01:14:11,326
>> Other questions?

1069
01:14:11,326 --> 01:14:18,942
[NOISE]
Professor

1070
01:14:18,942 --> 01:14:22,800
Bubba.

1071
01:14:22,800 --> 01:14:30,270
>> Thank you for very interesting talk
I'm, it sounds to me like.

1072
01:14:30,270 --> 01:14:35,570
You're kind of passing on the question of
where does law come

1073
01:14:35,570 --> 01:14:40,700
from, and you, you don't, you're not
necessarily focusing on, on

1074
01:14:40,700 --> 01:14:43,620
that as much as focusing on the question
of what, what

1075
01:14:43,620 --> 01:14:48,450
does law do, and how does it move, and
what are its.

1076
01:14:48,450 --> 01:14:50,980
What are its products and what are its
possibilities.

1077
01:14:50,980 --> 01:14:56,540
I'm wondering is, is it that the question
of who is the law giver is

1078
01:14:56,540 --> 01:15:00,360
no longer relevant or is not of interest
to you, is it something we should

1079
01:15:00,360 --> 01:15:04,750
be interested in, is it, is it a worthy
question to pursue or are we

1080
01:15:04,750 --> 01:15:10,130
to simply focus on what happens when law
is thrown into the mix as it where.

1081
01:15:12,430 --> 01:15:12,790
>> Yes.

1082
01:15:12,790 --> 01:15:14,980
Spot on Favia.

1083
01:15:14,980 --> 01:15:19,520
I think, given my emphasis, you could say
it doesn't come from anywhere.

1084
01:15:20,760 --> 01:15:22,855
Couldn't you, because, you know,
particularly

1085
01:15:22,855 --> 01:15:26,160
with Rousseau's lawgiver, it's got to be

1086
01:15:26,160 --> 01:15:31,250
everything's de novo because he's not
connected to anything really in a way.

1087
01:15:31,250 --> 01:15:32,990
And it's just a result of his.

1088
01:15:32,990 --> 01:15:35,870
Giving th, that what brought to bare.

1089
01:15:35,870 --> 01:15:39,240
But I think, yo know if, if one looks at
the other side

1090
01:15:39,240 --> 01:15:45,250
if you like, at the determinate side the
determined if you like, the

1091
01:15:47,640 --> 01:15:48,680
effective side.

1092
01:15:49,980 --> 01:15:51,780
There has to be a history.

1093
01:15:51,780 --> 01:15:55,120
Well I think sorry kind of this is a bit
silly but I think

1094
01:15:55,120 --> 01:15:58,980
it goes both ways and I'm stealing from
Darrida here in Before the Law.

1095
01:16:00,280 --> 01:16:01,390
Law can't have a history.

1096
01:16:03,190 --> 01:16:08,150
Because you know it's, it's, it's capable
always capable of the

1097
01:16:08,150 --> 01:16:12,600
casing itself completely and it's content
is always disappearing from it.

1098
01:16:12,600 --> 01:16:16,180
So he says quite bluntly that law doesn't
have a history.

1099
01:16:16,180 --> 01:16:18,510
But then he talks a bit later on about the
whole history of law.

1100
01:16:20,880 --> 01:16:23,980
Now one thing about Darrida whether you
like him or not he's never inconsistent.

1101
01:16:23,980 --> 01:16:26,450
So you have to ask yourself, what in the
hell does he mean.

1102
01:16:26,450 --> 01:16:28,820
And you realize, yes it, yes, okay, it
doesn't have

1103
01:16:28,820 --> 01:16:31,850
a history in any kind of settled sense,
you know.

1104
01:16:31,850 --> 01:16:37,480
It's always, becoming other than what it
is, but it's coming from somewhere.

1105
01:16:37,480 --> 01:16:39,260
There is still a history in that sense,
you know.

1106
01:16:39,260 --> 01:16:43,340
So, you wouldn't be able to just sort of
stand up and quote, make

1107
01:16:43,340 --> 01:16:46,180
up a rule of tort, you know, which suited
your client or something like that.

1108
01:16:46,180 --> 01:16:48,070
Of course, there would be precedent.

1109
01:16:48,070 --> 01:16:50,710
To be contended with, to be struggled
with, to try and stretch

1110
01:16:50,710 --> 01:16:54,000
this way, to push that way in the
direction of its responsiveness.

1111
01:16:54,000 --> 01:16:56,490
But you'd always start off with some,
well,

1112
01:16:56,490 --> 01:16:59,820
not always actually, but anyway, start off
with something.

1113
01:16:59,820 --> 01:17:01,410
There would be degrees of creativity.

1114
01:17:01,410 --> 01:17:04,760
I mean, transitional justices we were
touching on yesterday a bit.

1115
01:17:06,390 --> 01:17:09,140
in, in, in some societies is incredibly
inventive, you know?

1116
01:17:09,140 --> 01:17:09,640
I mean.

1117
01:17:10,740 --> 01:17:12,580
All sorts of things put together from all
over the

1118
01:17:12,580 --> 01:17:15,430
world in ways that I don't think anyone
could predict.

1119
01:17:15,430 --> 01:17:18,480
And see as any kind of a coherent
continuing history.

1120
01:17:18,480 --> 01:17:21,210
I cert- certainly wouldn't like to be
tried.

1121
01:17:21,210 --> 01:17:23,770
Under reg- lot of regimes of transitional
justice.

1122
01:17:23,770 --> 01:17:26,980
You know because you take a bit of stuff
from the ICJ here.

1123
01:17:26,980 --> 01:17:29,620
Take a bit from truth and reconcilation in
South Africa there.

1124
01:17:29,620 --> 01:17:31,800
You take a bit from your internal
constitution.

1125
01:17:31,800 --> 01:17:34,810
You mix well and, and then bake.

1126
01:17:36,100 --> 01:17:38,600
And a it's, it's pretty wild stuff.

1127
01:17:38,600 --> 01:17:40,260
So, I think there are degrees, aren't
there?

1128
01:17:40,260 --> 01:17:45,370
And I think these degrees probably vary in
terms of I've earned feelings

1129
01:17:45,370 --> 01:17:50,450
of I've earned importance in regard to
security and the expectation and so on.

1130
01:17:52,560 --> 01:17:55,710
>> Okay, it's always difficult to close.

1131
01:17:55,710 --> 01:17:59,970
After such an ambitious presentation that
animates the,

1132
01:17:59,970 --> 01:18:02,050
the fantasies of some of our colleagues
wishes

1133
01:18:02,050 --> 01:18:07,035
the death of some schools of thought that
people like me at least partly adhere to.

1134
01:18:07,035 --> 01:18:09,480
[LAUGH] But this, this being said I

1135
01:18:09,480 --> 01:18:13,300
think we're all very thankful to Professor
Fitzpatrick.

1136
01:18:13,300 --> 01:18:18,510
For yet another, a fourth visit to Osgood,
and really thoughtful presentation.

1137
01:18:18,510 --> 01:18:22,640
And, and the challenge when somebody has
come to four times to Osgood is to, is to

1138
01:18:22,640 --> 01:18:25,340
make sure that that, our token of
appreciation is

1139
01:18:25,340 --> 01:18:27,415
not the same as the one that we've
offered.

1140
01:18:27,415 --> 01:18:29,110
On past trips.

1141
01:18:29,110 --> 01:18:30,390
So here I am going to cross my fingers,

1142
01:18:30,390 --> 01:18:32,792
because, unfortunately I was not there for
those previous visits.

1143
01:18:32,792 --> 01:18:35,113
Thank you very much you're very
thoughtful.

1144
01:18:35,113 --> 01:18:35,655
>> Thank you.

1145
01:18:35,655 --> 01:18:36,496
Thank you.

1146
01:18:36,496 --> 01:18:39,920
Thank you.