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Law from the Margins

Did anyone else ever feel annoyed with those blue Counsel books as a trainee solicitor? Why weren’t there any margins in them? I had become so used to writing in pads with margins, I couldn’t fathom a good reason for why they should not have one, other than that maybe this was just another way in which solicitors and barristers could claim a difference from the common crowd.

Digging a bit deeper, what meanings get created when you or I or anyone else draws a line which creates a margin? A margin is a demarcation, a boundary between what is “correct” and what is “incorrect”. I remember being told in quite strong terms that crossing the margin with any writing was definitely “incorrect” and wrong. Keep a neat and tidy line writing down. We have the same meaning in “marginalised communities” and “marginalised voices”, voices which are not at the centre of attention and power.

At the same time, a marginalised voice can be a privileged voice by the very fact it is not at the centre, it can be “outside” looking in, which especially in moments when the centre is in crisis can be quite a useful position to be viewing from.

Turning and turning in the widening gyre

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

Yeats - The Second Coming (1865 - 1939)

A pillar of the literary establishment of that time, his then was the voice of the centre, lost with a world order crumbling in the aftermath of the First World War. What has been the Law’s role in bringing matters to such a crisis as we are living through now? Perhaps more importantly, what is the Law’s role in responding to times of such crisis?

Interestingly, “crisis” comes from the Greek words krinein and krisis, meaning a decision, a power of distinguishing, discerning. At its root, there is no necessary connotation that a crisis is negative. In fact, one could say that - just like the two Chinese characters making up the chinese word for crisis - “crisis” holds both danger and opportunity at the same time. It only becomes one or the other depending on how it is responded to.

In the act of discerning, judging, deciding, law then is also krisis and krinein and the lawyer/judge the Critic or Critique. For what does law do other than decide and judge what is right and what is wrong?

“Let us now turn to the modern critical tradition. Kant’s Critiques, the foundational document of modernity, start by posing the question “quid juris” - by what legal right. The link between law and critique is a central feature of modernity [...] In the original Kantian sense, critique means the exploration of the transcendental pre-suppositions, the inescapable conditions of possibility of a discourse or a practice [...] The aim of critique is to [...] “dare people to know”, but also to delineate what remains off limits to knowledge because it does not belong to its kingdom. Critique is therefore also a policing operation; its judgment establishes boundaries [...] As with all judgment and setting of limits, critique both prohibits and enables [...] critique is a diacritical or cutting force, a critical separation and demarcation.”

(Douzinas and Gearey, Critical Jurisprudence: The Political Philosophy of Justice, pg 37-38) (my underlining)

How can Law bear that light of discernment back in on itself, to see the shape of what it has denied as knowledge because it at that time lived in a kingdom that separated knowledge from the senses and emotions, mind from body?

Perhaps then voices from the margins are better voices to be listening to at moments of crisis as they are less likely to be busy cutting and judging with unconscious biases according to what is liked and disliked by the power at the centre?

Coming back then to the non-marginalised blue Counsel books, I’m now quite taken by the fact that there is no margin, that what is offered is a tabula rasa, a place of emptiness before boundary making has been etched in. In standing pushed against the boundaries of multiple ecological, social and political crises, can we feel our way to a response from Law that captures the potential of a threshold opening us up, rather than the edge of a container keeping us in with what we already know?

Answers on a postcard please (and no margins!). Till the next post, watch out for them pesky boundaries (inner and outer :))


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