Peter Fitzpatrick

Critical legal studies is one of the most challenging developments in the contemporary study of law. Drawing heavily on the radical political culture of the period since the 1960s, critical legal studies assents the necessity of a politics of law - a politics which sees law, not as something apart, but as engaged in the multitude of arguments, battles and struggles which produce the human condition. Such a committment decisively rejects the dominant tradition of Anglo-American legal scholarship, the expository orthodoxy or, more crudely, the 'black-letter law' approach. The essays in this book provide the first wide ranging exploration of the aims and scope of critical legal studies in Britain. They draw on a diversity of intellectual traditions, including feminism, Marxism, critical theory and deconstruction and explore the implications of the critical approach for important areas such as property, contract, company, and labour law.

Existing approaches to the relation of law and society have for a long time seen law as either autonomous or grounded in society. Drawing on untapped resources in social theory, Fitzpatrick finds law pivotally placed in and beyond modernity. Being itself of the modern, law takes impetus and identity from modern society and, through incorporating 'pre-modern' elements of savagery and the sacred, it comes to constitute that very society. When placing law in such a crucial position for modernity, Fitzpatrick ranges widely from the colonizations of the Americas, through the thought of the European Enlightenment, and engages finally with contemporary arrogations of the 'global'. By extending his previous work on the origins of modernity, this book makes a significant contribution to continuing developments in law and society, legal philosophy, and jurisprudence.

_Foucault’s Law_ is the first book in almost fifteen years to address the question of Foucault’s position on law. Many readings of Foucault’s conception of law start from the proposition that he failed to consider the role of law in modernity, or indeed that he deliberately marginalized it. In canvassing a wealth of primary and secondary sources, Ben Golder and Peter Fitzpatrick rebut this argument. They argue that rather than marginalize law, Foucault develops a much more radical, nuanced and coherent theory of law than his critics have acknowledged. For Golder and Fitzpatrick, Foucault’s law is not the contained creature of conventional accounts, but is uncontainable and illimitable. In their radical re-reading of Foucault, they show how Foucault outlines a concept of law which is not tied to any given form or subordinated to a particular source of power, but is critically oriented towards alterity, new possibilities and different ways of being. _Foucault’s Law_ is an important and original contribution to the ongoing debate on Foucault and law, engaging not only with Foucault’s diverse writings on law and legal theory, but also with the extensive interpretive literature on the topic. It will thus be of interest to students and scholars working in the fields of law and social theory, legal theory and law and philosophy, as well as to students of Foucault’s work generally

Initially, deliberative politics offers a failure of self‐identity in that the literature dealing with it divides between its determinate elevation in terms of reason, and such, and its dissipation in response to the diversity of interests pressing on it. Next, drawing on the resources of poststructural jurisprudence and by way of locating law at a defining limit of deliberative politics, a similar divide is found in law itself. Then, more productively, law is shown to be constituted with‐in that divide and to take characteristic content from it. Finally, the analysis is returned to deliberative politics where the divide found in the literature can now be seen as offering this politics possibilities of effective constitution and distinctive content

This has been an account of how an incommensurability between peoples is integral to the creation of identity in modernity and of how law assumes its modern, ambivalent being through embodying and mediating that incommensurability. A concluding point can be made by relating all this to the large and revelatory concern nowadays with the construction of Occidental identity in exclusion. This construction involves that which is acceptable or within the identity being created in its difference to that which is unfit and excluded. Looked at in reverse, if the excluded were to re-enter, as it were, then the identity would disintegrate. All of which, so the story continues, is a somewhat figurative way of discerning processes that remain internal to the identity. There is no “without” because the supposedly excluded is a fantastic projection of what is “within,” although it is repressed there. This projection is, however, attached to actuality, as we have seen. In ascribing what is excluded to the colonized, peasants and other incommensurables, not only must their difference to what is “within” be fabricated and asserted but also their similarity to what is “within” must be denied. The resistances of the colonized, which have just been described, succeeded because of organizational efficacies and juridical assertions which were the putative preserve of the Occident. Such a sameness of what should be different may locate a “remote recess” in a globalized Occidental identity, including its law, from which it could be seen as partial and precarious.