Reviewed by Elizabeth Loeb, Institute for Law and Society, New York University. Email: Elizabeth.Loeb [at] alumni.brown.edu.
There is no inheritance without a call to responsibility. An inheritance is always the reaffirmation of the debt, but a critical, selective, and filtering reaffirmation, which is why we distinguished several spirits. (Derrida, 1994).
In her edited volume, THE LAW AND SOCIETY CANON, Carroll Seron offers “a brief tour through the research essays that shape the discipline of law and society.” In offering this tour, Seron provides an excellent and well-curated resource that will be of much-appreciated use to anyone who wishes to engage with the discipline now known as Law and Society.
Simply collecting and thematizing the seventeen pieces, all published between 1961 and 1992, would have been a great help to students. Seron adds significant value to the collection however, by arranging the pieces into six topical categories, the names of which, (Socio-Legal Theory, Disputing, Courts and Local Legal Culture, Lawyers, Policing, Administrative Law), are themselves a road-map of Law and Society’s intellectual development. Seron deepens her contribution further by prefacing the collection with a concise and insightful introduction. I gladly admit that I would have been thrilled to have had Seron’s book while studying for my Ph.D. comprehensive exam, and that I would turn to it eagerly were I teaching a course on the core concepts of Law and Society. I recommend THE LAW AND SOCIETY CANON to anyone interested in Law and Society as an academic discipline.
At the same time, I will use this review to consider whether THE LAW AND SOCIETY CANON misses a ripe opportunity to engage critically with its own announcement of canonization. How have the boundaries of this canon been drawn? What are the politics of consolidating Law and Society as a discipline with the particular intellectual history that Seron presents?
Most, though not all, of the collected pieces in THE LAW AND SOCIETY CANON were written by scholars who identify as white men. While some of pieces comment on legal practices outside the US, and while one of the pieces considers the complexities of US immigration policy, none of the pieces directly grapple with raced, sexed or gendered experiences in the United States. Although almost all of the essays reshape and reform the dominant view of law and jurisprudence found in mid-century US law schools, even those from the 1980s and early 1990s side-step the revolutions in legal scholarship that were occurring at the time under headings such as Critical Race Theory, Critical Legal Theory, Disability Studies, Queer Theory, Radical Feminism, Chicano/a Studies, and Third World Feminism. [*268]
Seron does not discuss how or why she chose the pieces that she did, or how the boundaries of the “canon” are drawn. Certainly, my own studies in Law and Society lead me to believe the essays Professor Seron gathers are all indeed major contributions, and that a critical mass of Law and Society scholars consider the essays to be, in fact, foundational. What is missing then, is an engagement with the politics of canonization itself – an omission that seems especially perplexing in a discipline that so intimately traces practices of dominance and power.
To be fair, Seron does provide a context for the CANON, narrating the history of Law and Society as something that transformed from a loose field and association of scholars and activists to a “taken-for-granted discipline” that can be found at most colleges and universities in the US and elsewhere. This sense of arrival and consolidation seems to ground Seron’s decision to attach heft of “canon”: to the essays she collects. Seron acknowledges that “a canon of texts is both the objectification of a social process and a discursive engagement that ‘mutates continuously’ in the frictional spaces of institutional reproduction” (p.498, citing Guillory, 1987). Why then, does Seron stop short of speaking to those frictional spaces, or to what is and isnn’t objectified?
Seron’s purposes in brining together what she considers to be a set of collectively recognized foundational texts seems to be twofold: 1) to provide a shared set of reference points for scholars working within Law and Society as a discipline; 2) to provide a mapping of the critical moves and intellectual underpinnings that identify the discipline’s character and history. Taken together, these purposes form what Seron calls a “‘sense of the canonical’” (citing Balkin and Levinson, 1996), a sense that contributes both to a self-understanding within the discipline and to a more externally focused sense of arrival and purpose. For example, writing about the move away from “theory qua theory” that she ascribed to mid-century Law and Society, Seron argues that such a move, as traced in the CANON, may “prove to be its [Law and Society’s] most important contribution to the social sciences more generally at the beginning of the twenty-first century.”
Taking seriously this so-called moved away from theory, what are the stakes of the canonization that Seron invokes in this volume? Jobs are at stake. Jobs, salaries, tenure, funding for Ph.D. programs, and the availability of resources to teach and write seriously about material oppression. As Richard Delgado pointed out in his ground-breaking studies “The Imperial Scholar,” “The Imperial Scholar Revisited,” and “The Colonial Scholar,” who gets cited in “canonical” books and articles overwhelmingly determines who gets hired, who gets paid, and which programs find resources. Writing first in 1984, and then in 1992 and 1996, Delgado showed in a quantatative study that in order to succeed in legal academic circles, you had to cite white. That is, Delgado showed that authors who were published in major legal journals, book collections, and especially law reviews would overwhelming and repeatedly cite a small group of white men, avoiding not only authors with non-dominant identities, but subjects that might be seen as too “ethnic,” and [*269] the like (Delgado 1984). Delgado argues that these citation practices not only shape resource distribution and working conditions, but they limit the intellectual ground that scholars of color, women, and LGBT scholars can successfully traverse (Delgado 1984; 1992; 1996). Over and over again, Delgado was told that he had to “play things straight” if he ever wanted to establish a career as a legal academic. Writing about race could come, but only after tenure (Delgado 1984; 1992; 1996).
It would be disingenuous of me to try to pin this state of affairs on Seron’s volume. Nonetheless, those of us who think of ourselves as being part of “Law and Society” have a responsibility to consider the material impact of our intellectual production. By canonizing a group of articles that steps over the contributions of raced and sexed legal scholarship, we enforce the very expectations outlined by Delgado and so many others. Just as perniciously, we reproduce a set of conditions in which academic resources flow most easily to those who speak from within dominance (Delgado 1993). As Delgado writes, “[i]n the call for standards, scholars in the academic mainstream urge the adoption of universal criteria under which outsider scholars will, in a sense, return to the fold – that is, agree to be judged not by their own lights but those of the mainstream academy” (Delgado 1993). A canon might not explicitly announce itself as a call to standards, but, as Katherine Franke (2003) has shown and argued, any act of canonization, whether intended to be or not, invokes the authority of the mainstream, the universal, the return to “real” scholarship after some folly in the valley of identity (also see Duggan 2003).
In asking these questions, I do not mean to suggest that we should not acknowledge the foundational impact of the texts that the CANON brings together. Rather, I am suggesting that we must take up the responsibility of that inheritance by bringing critque to bear on the implicit politics and explicit impact of the writings we receive as supposedly ours (Nader 1972).
For example, Seron writes that Law and Society began as an “American professional association” that “[t]oday . . . moves in a decidedly international direction.” What difference would it make if we were instead consider that Seron’s “American” or United States-based origin was always already a transnational one – that being “American” in character has always involved an unavoidable engagement with the transnational and international foundation of the United States as a series of treaties with sovereign native tribes, or as a military invasion of Mexico’s sovereign borders, or as a citizenry composed almost entirely of recent immigrants (Saldana 2005; Saldana 2004; Lowe 1996; Barsh 1980)?
Some writers, such as Eve Sedgwick (1991), have asked whether, instead of attacking a dominant center for its minoritization of outsiders, it might be effective to show that the dominant center is itself the minority, and that outsider experience and perspective is already and always more ascendant and more relevant than that center. Should I have used this review to show that Seron’s canon is, in fact, something of a queer one, to show that dominance has [*270] always already been subverted? Although such queering can be a necessary or creative tactic within anti-oppression scholarship, my gut sense is that at this moment, making the canon cool would be skirting the very material challenge raised by Delgado’s studies. I fear that by showing how and why the mostly white and mostly male canon enacts and contains its own critique, we create circumstances in which universities and resource-rich institutions do not actually have to distribute those resources to scholars who name themselves as radically and irrevocably raced, classed, sexed, gendered, or to scholars who speak from that naming and experience, or to scholars reproducing paradigms other than those of dominant power networks.
Carroll Seron has edited a necessary resource, one that assists us in acknowledging the intellectual history of what might now be called the discipline of Law and society. As a self-identified Law and Society scholar, I hope that in moving towards our futurity, we might produce a collective sense of shared texts that begins to enact the sort of social change we so often purport to study.
Barsh, Russel and Youngblood, James Henderson. 1980. THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY. Berkeley: University of California Press.
Delgado, Richard. 1996. “The Colonial Scholar: Do Outside Authors Replicate the Citation Practices of the Insiders, but in Reverse?” 71 CHICAGO-KENT LAW REVIEW 969-976.
Delgado, Richard. 1993. “The Inward Turn in Outsider Jurisprudence.” 34 WILLIAM & MARY LAW REVIEW 741-768.
Delgado, Richard. 1992. “The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later.” 140 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1349-1372.
Delgado, Richard. 1984. “The Imperial Scholar: Reflections on a Review of Civil Rights Literature.” 132 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 561-578.
Derrida, Jacques. 1994. SPECTERS OF MARX: THE STATE OF DEBT, THE WORK OF MOURNING, AND THE NEW INTERNATIONAL. New York: Routledge.
Duggan, Lisa. 2003. THE TWILIGHT OF EQUALITY: NEOLIBERALISM, CULTURAL POLITICS, AND THE ATTACK ON DEMOCRACY. Boston: Beacon Press.
Franke, Katherine. 2003. “On Discipline and Canon. (Why a Feminist Law Journal?)” 12 COLUMBIA JOURNAL OF GENDER & LAW 639-645.
Lowe, Lisa. 1996. IMMIGRANT ACTS: ON ASIAN AMERICAN CULTURAL POLITICS. Durham: Duke University Press. [*271]
Nader, Laura. 1972. “Up the Anthropologist: Perspectives Gained from Studying Up.” In D. Hymes (ed). REINVENTING ANTHROPOLOGY. New York: Random House.
Saldana, Josephina Maria Portillo. 2005. “In the Shadow of NAFTA: Y tu mamá también Revisits the National Allegory of Mexican Sovereignty.” 57 AMERICAN QUARTERLY 751-778.
Saldana, Josephina Maria Portillo. 2004. “Wavering on the Horizon of Social Being: The Treaty of Guadalupe-Hidalgo and Its Racial Character in Ámerico Paredes’s George Washington Gómez.” 89 RADICAL HISTORY REVIEW 135-161.
Sedgwick, Eve Kosofsky. 1991. EPISTEMOLOGY OF THE CLOSET. Los Angeles: University of California Press.
Thomas, Kendall. 1992. “Beyond the Privacy Principle.” 92 COLUMBIA LAW REVIEW 1431-1516.
Williams, Patricia J. 1991. THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR. Cambridge: Harvard University Press.
© Copyright 2008 by the author, Elizabeth Loeb.