The Four Axes of Legal Ideology Ben Wardle LLB
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The Four Axes of Legal Ideology Author Wardle, Benjamin James Published 2016 Thesis Type Thesis (PhD Doctorate) School Griffith Law School DOI https://doi.org/10.25904/1912/3471 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/367046 Griffith Research Online https://research-repository.griffith.edu.au The Four Axes of Legal Ideology Ben Wardle LLB. (Hons), B.Bus (Finance) A dissertation in fulfilment of the requirements for the degree of Doctor of Philosophy Arts, Education, Law Group Griffith Law School Griffith University Nathan, Queensland, Australia 29 April 2016 Abstract The writings of Slavoj Žižek have greatly expanded our understanding of how social stratification is maintained through ideology. However, those writing on the ideological operation of law are yet to engage with Žižek’s work. This thesis draws on Žižek’s multifaceted definition of ideology to provide unique insights into the ways that law is implicated in the maintenance of systemic inequality in liberal democracies. Ideology is defined as incorporating four interdependent and interrelated axes. The first axis, discourses, explains how communicative networks often controlled by the powerful lead people to view contingent, cultured and historic concepts necessary for social hierarchy as universal, egalitarian or eternal. It is asserted that the dominant legal norms of individual freedom and formal equality act in this way by masking the systemic oppression prevalent in liberal democracies. These norms also permeate abstract individualism and colonise popular understandings of two potentially revolutionary concepts. The second axis, spontaneous beliefs, analyses how people instinctively react to unfamiliar situations drawing on ideological discourses in ways that adapt, develop and individualise beliefs that are intimately entwined with social hierarchies. In daily experiences people draw on the dominant norms of abstraction and individualism permeated by law. In doing so these norms are amended to suit changing social conditions. The production of legal ideology is consequently not the exclusive terrain of professional ideologues like academics, politicians and judges but is assisted by people from all walks of life in seemingly mundane and ordinary circumstances. The materiality of ideology is the third axis and explains how material forms such as rituals can serve as the basis for ideological beliefs. It is through the materialisation of ideology that people often first encounter ideological beliefs and this exposure forms ideological beliefs. Žižek argues that belief is merely the formal act of recognising what we already believe. A particularly prominent component of the materiality of legal ideology is architecture and it is contended that many courthouses and parliament buildings materialise idealist legal norms, proclaim the universality and eternality of contingent and historic legal relations, and are built in celestial designs to manifest a religious-like faith in law. Fourth is the unconscious axis of ideology. This axis applies Žižek’s political engagement with Lacanian psychoanalysis to explore the ways that subjects of ideologies rely on fantasy and repression to maintain their beliefs in the face of constant experiences exposing the flaws, incompleteness and dogmatism inherent in legal ideology. I argue that the perceived universality and irreproachability of human rights stems in part from the fantasmatic elevation of rights to a sublime status assisted by the repression of the turbulent origins and power politics at play in the drafting of the Universal Declaration of Human Rights. This is ideological as rights are often seen as a silver bullet to complicated social problems without the need to consider the sources of social stratification. Moreover, the belief in the universality of human rights can blanket discussion as to what should constitute a human right, and how rights should be enforced, today and in the future. Through the employment of the four axes of ideology this thesis makes an original contribution to explaining how legal norms and practices assist in the sustainment of systemic inequality. Statement of Authorship This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Ben Wardle 29 April 2016 Contents List of Figures 2 Introduction 3 Chapter 1 Social Stratification and Ideology 9 Chapter 2 Law and Ideology 39 Chapter 3 Ideological Legal Discourses: Critiquing Individual 66 Freedom and Formal Equality Chapter 4 Ideological Spontaneous Beliefs: Fetishising Bananas and 87 Billable Hours Chapter 5 Materialising Ideology in Legal Architecture 112 Chapter 6 Fantasy, Ideology and Human Rights 154 Chapter 7 Ideology, Repression and the Universal Declaration of 180 Human Rights Conclusion 201 Bibliography 205 Acknowledgements As I look back on the winding trail that has led to the completion of this thesis it becomes clear that the pages that follow would not exist but for the great support and guidance I have received over many years. I would like to firstly thank Dr Allan Ardill for the inspirational ways he personifies critical thinking with courage, conviction and kindness. There would hardly be a paragraph in this paper that does not stem from Allan’s counsels towards the road less travelled during lectures in my formative years, and in the friendship that followed. I am sure I would be still stuck somewhere down that road but for Dr Daniel Hourigan’s diligent directions through the thorny thickets of psychoanalytic theory during our long Lacanian lunches; and it would have been a dull and dusty journey without Professor Bill MacNeil’s pizzazz and colour; my thanks to you both. At no stage did I walk alone. My partner Di has been around every turn with me, through every valley, and has sacrificed much during these past years while wearing her wise smile. My appreciation for this knows no bounds. Finally I would like to thank my mother Denise for teaching me that long roads are worth walking. List of Figures Figure 1 Virginia State Capitol (1788, Richmond) 118 Figure 2 Supreme Court Building (1935, Washington) 120 Figure 3 The steeple of a Christian cathedral, the minaret of an Islamic 123 mosque and the dome of a Jewish synagogue Figure 4 The religious tower in legal architecture: House of the Nation 125 (1904, Budapest), United States Capitol (1783, Washington) British Columbia Parliament Buildings (1898, 1915, Victoria) Figure 5 Materialising universal freedom: United States Capitol and 127 Statue of Freedom Figure 6 Lady Justice around the world: Supreme Federal Court of 130 Brazil (Brasilia); Central Criminal Court of England and Wales (London); Court of Final Appeal (Hong Kong); Supreme Court of Nigeria (Abuja) Figure 7 Concrete abstractions: the cross adorning St Paul’s Cathedral 133 (1711, London), the Statue of Freedom on the United States Capitol, and Lady Justice above the Central Criminal Court of England and Wales (1774, London) Figure 8 The Royal Courts of Justice (1882) and Winchester Cathedral 135 (1079) Figure 9 The Main Hall of the Royal Courts of Justice and the interior 135 of Rouen Cathedral (1880) Figure 10 Palazzo della Civiltà Italiana (1943, Rome) 137 Figure 11 High Court of Punjab and Haryana (1957, Chandigarh) and 138 High Court of Australia (1980, Canberra) Figure 12 Figure 12. Postmodernist courthouses in the United States: 139 United States Courthouse (2014, Austin), Alfonse M. D'Amato United States Courthouse (2000, New York), Lloyd D. George Federal Courthouse (2002, Nevada), San Diego Federal Courthouse (2012, San Diego) Figure 13 Queen Elizabeth II Court House (2008, Brisbane) 141 Figure 14 400 George Street (2009) and QEII 142 Figure 15 Ngaanyatjarra Land Claims Open Court (2005, Parntirrpi 147 Bore Outstation in the Great Victoria Desert, Australia) Figure 16 Parliament House (1988, Canberra) 148 Figure 17 Materialising Radical Critiques of Universal Justice: Survival 149 of the Fattest (Jens Galschiot and Lars Calmar, 2002) and Untitled (Banksy, 2004) Figure 18 Trust no one: Untitled (Banksy, 2004) 151 Figure 19 The Mobius Strip 157 Figure 20 Lacan’s Formula for Fantasy 163 2 Introduction We live in a world overwhelmed by oppression, exploitation and violence. In a word our planet is plagued by social stratification. Social stratification describes the systemic economic, cultural and political benefits some groups of people obtain at the expense of others. It is unjustifiable, unethical and largely responsible for the plight of the world’s most exploited peoples. However, social stratification is widely accepted as the status quo across most countries and cultures. One body of literature that aims at understanding how social stratification is caused and maintained with the aspiration of eliminating it is called the critique of ideology. The concept of ideology has no widely accepted definition and has taken many forms since its inception in the late eighteenth century. The term has been used neutrally to describe a particular discourse or a total vision of the world, and politically in Marxian works to describe an anti-metaphysical epistemology, ideas detached from the material conditions of their production, ruling ideas developed by and supporting a ruling class, and material manifestations