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Critical Legal Thought: The Case for a Jurisprudence of Distribution

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Paulo Barrozo discusses the jurisprudence of distribution. The analytical framework for concentrative and decentrative distributions is here placed in the context of a struggle for the standards critical legal thought must meet.

Image courtesy of interviewee. December 20, 2023

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This video video discusses the concept of the "Great Alliance," a political and intellectual movement in the 19th century that integrated rationalist and conservative thought. This video video alliance shaped modern constitutional orders and provided the foundation for stability and governance in Western societies.

Key points include:

1. **Dual Camps of Thought**: The two main perspectives were rationalism, which emphasized scrutiny through reason, and conservatism, which valued the gradual evolution of society. In the 19th century, these camps converged, leading to a synthesis that impacted legal thought.

2. **Constitutional Legitimacy**: The convergence of these perspectives legitimized 19th-century constitutional frameworks, including the separation of powers, individual rights, and an independent judiciary.

3. **Political Masses**: The rise of political masses through electoral reforms and revolutions introduced challenges to established orders, demanding a balance between stability and necessary change.

4. **Criticism as Stability**: Societies thrive through ongoing criticism and adaptation. This video video idea points to the importance of change and responsiveness in governance.

5. **Understanding Equality and Freedom**: This video video argues that equality is essential to maintaining human freedom and that equality must be understood as both the distribution of resources and access to opportunities that sustain freedom across generations.

6. **Analytical Framework for Distribution**: The author introduces a framework for analyzing distributive justice, emphasizing the need to consider various elements when addressing violations of equality, recognizing the complex interplay between distribution and concentration of resources.

7. **Call to Critical Legal Thinkers**: The work encourages those in the field to move away from reliance on networks and superficial critique and to engage deeply with the complexities of societal organization and the pursuit of freedom.

Overall, the text advocates for a systematic and comprehensive approach to legal thought that reconciles the need for order with the inevitability of change, emphasizing the ongoing need for discourse around freedom, equality, and the distribution of resources in society.

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So the Great Alliance is a phenomenon

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that is not totally understood, even is,

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is just not detected by most of the scholarship

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of all law in, in modern times.

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So the Great Alliance was a phenomenon, political

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and intellectual in the 19th century that set the basis

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for how we live together

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and how we relate to the constitutional orders

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in the West and throughout the world.

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It wasn't alliance between two camps of thought that were

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polarized around the time of the French Revolution.

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On one camp, you had rationalism that believed

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that human reason had to scrutinize institutions practices,

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belief systems,

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and to the extent that they failed to pass rational

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scrutiny, that that reason out to sort

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of engineer an answer to those questions,

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to those institutions,

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to those practices, to those set of beliefs.

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On the other camp, we had conservatism, well, ReSTOR

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and the view there was human society.

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Such a delicate flaw, the delicate crystal.

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It evolves over the longest period of time,

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and we should not, try to, to, to expedite

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its natural evolution.

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We ought to be stewards of the lessons of history,

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transgenerationally and let, law and the ecosystems

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and the legal systems and the constitution origin

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that we inhabit, be authentic in the sense

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that they reflect this a slow incremental cycle development.

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So these two capital, very polarized around the time

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of the French Revolution, what happened in the 19th century

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in legal thought, which, consequences to outdate,

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is that these two camps met at the middle line.

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They converged. So the

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Historicist Camp Outdoor,

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recognizing the incremental revolution of society,

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gave reason a massive function in the system throughout the

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role of reason here is to conceptually organize the product

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of historical development without which history just,

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disappears, dissipates in,

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in thin air on the other camp.

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The Rationalists said that, well,

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when you think carefully about it

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in the historical development, you already find out

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the footprints of reason because history is made by actors.

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Actors are acting out reason some degree in the world.

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And when you look at the institutional framework

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of any society, you'll find already a footprint

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of reasonable over time.

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You just have to identify that, that, that those footprints

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and so bring them to light, right?

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So these two camps, when they came together in this way,

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these study system ISTs, what they did was they hyper

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legitimize the constitutional framework

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of 19th century western world.

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Things that we are very, very familiar with.

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Uh, the three apartheid, division of power, strong,

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independent, judiciary, the market separate from the state,

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the family, separate from the market, from the state, and,

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and the notion that we have individual rights

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that we can bring to the judiciary to protect.

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So it, this is so powerful

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that we can not even hardly imagine

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how the world would be otherwise, right?

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But there is a third element to the greater lives.

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The third element was that the political masses

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that in the 19th century had come to the state, to the stage

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of, of, of Western politics,

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and throughout the world, eventually the political masses

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that came onto the political stage through electoral reforms

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that expanded the franchise

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or in unconstitutionally through revolutions, revolts,

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protests, that political mass brought up a dimension

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of instability of what was experienced by the elite

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of the time of instability to the constitutional orders.

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But the, the intellectual promise of the Great Alliance

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stumbled together of recent histories telling us

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that these institutions that we have are both authentic

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historical speaking,

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and legitimate rationally speaking, are the best promise

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for emancipation and equality

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and the masses body to it.

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So to the extent that we have enjoyed the stability,

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over the course of the last 200 years is in large measure

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because of the great alliance, how we thought

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citizens came together

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and how the masses brought into that promise

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of authenticity with prison.

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One of the things that the great alliance made possible is

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that, that societies that are highly complex, such

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as our societies, they they can accommodate,

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daily dose of criticism or self-criticism.

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In fact, our societies are only stable

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because they change all the time,

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and they change all the time

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because they're constantly under criticism.

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Criticism can be more modest or can be more general,

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but criticism is very, very stabilizing

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in our high complex society.

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I think one thing that, that, liberals

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and conservatives tend to miss is that liberals tend to miss

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how important it is to have social order.

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Because without social order, you do not have

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the other values.

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Aspiration. We have freedom, justice, equality,

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but the conservatives fail to see

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that societies only hang together over a longer period

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of time if they change all the time.

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So the greater lives made it possible for societies

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to change all the time

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because it sort of created a,

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a medical convent about institutions that are essential,

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the values that are essential.

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So if you have that convention at the top, a lot

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of change can be accommodated on the ground level.

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And so juris lawyers, judges,

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those who, act in legislation,

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they are in the boat

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because the bottom mind is very restive.

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They are in the boat of taking a slice of the liberal order,

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redefining or re describing that slice as policy,

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then engaging the critique of that policy,

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the critique in terms of means and

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or efficiency by ti in light of some value, justice,

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equality, freedom, dignity,

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and then make a proposal as to how to reform

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that particular policy

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and then translate back into legal reform.

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So this is a standard mode of critique,

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of juries everywhere.

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Now, you ask me, what is critical legal thought is that

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what it is is, is just, is sort of the bread

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and butter of thinking about law

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and any law in modern societies

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or critical thought to something else.

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So my strong thesis in, in the, in this work is to say that,

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critical thought has to be something else.

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Uh, and I said three characteristics, to sort

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of begin the conversation.

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So I say the critical of thought has to operate

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in the ground rationalist tradition,

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but the first target of critical of thought has to be

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the early justified criticisms that we may have

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about any aspect of society.

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And it's interesting that I, that I, that I noticed

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over time that those who consider themselves

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as critical legal theories of critical legal thinkers

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did not have a definition that would set them apart

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from either the standard mode of critique, the breath

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and body criticism of day-to-day law,

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or from all the global traditions

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of critical legal theory.

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There are other,

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large traditions like libertarian tradition,

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the natural law tradition, the cooperatives

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of fascist tradition, in legal modern legal thought.

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So how can we tell that we are

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before what I'm called a pre political thought

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and not one of these other traditions?

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Uh, and I think that I, over time I realized that that

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many juris operating

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and think of themselves as critical political jurists, only

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at the end of the day identify themselves and,

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and all critical legal thinkers in terms of network,

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those who read and cite each other.

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Then I found that

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that was profoundly dissatisfied in correctly speaking

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that how to be, criteria

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that would allow us to identify what we mean

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by critical legal theory, critical thought

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that distinguish it both from the standard level of critique

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as well as from this, all the global critiques of law.

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And I say that the first search that criteria is

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that it's simply the ground rationally tradition

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that subject as its first target, this value over reliance

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on networks in order to distinguish

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critical thought from other modes of, of legal critique.

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Um, then I, I I say also that critical legal thought

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is normative.

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It is normative in the, in the constructive, normative way.

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It, it does not rely

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on intuition preference convention as a base

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of socialization, as a basis of our judgment of the world,

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of the state of affairs world,

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of the sign of a course of actions.

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Then we have to construct a theory as to why,

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the state of affairs is it perfect ways we say it?

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Is it perfect and why

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it should be improved in the direction we

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say it should be through?

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So critically thought is therefore not only rationalists,

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but it is, committed to, normative enterprise

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of spelling out the reasons why,

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that which we criticize this criticizable

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and the, the desirable outcome

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of social change is at the end of the day desirable.

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Then a third element.

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And these elements, you can arrange them in

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any order you like.

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The third element is, is a critical legal thought has

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to be systematic and comprehensive.

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It has to operate, historically

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at the highest altitude because

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otherwise, if you fly too close to the ground

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as a, as a, as a, as a critic of the law, you can't tell

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where your critique fits in the largest scheme

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of the evolution of one in high complex societies.

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So I say, that is in this word that there is no place

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outside one of these major comprehensive theories about law

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that is only knowing

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or not knowing that are inside one of those.

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Therefore, your thought has to be rationalist, has

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to be normative,

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and has to accept the structural, comprehensive, systematic,

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grand theoretical, aspect of its enterprise, even

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as an acknowledge that it is our fashion.

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But I think the intellectual price we pay for

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surrendering to the convention in favor

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of intellectual minimalism is too high a price.

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And that, critical thought should be the first one

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to be reject at that too high price.

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So when, when it comes to the issue of equality,

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I arrive at it, from a perspective that is not

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novel, but it's, often misunderstood or or forgotten.

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I arrive at it from the commitment to freedom.

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So I say the critical of thought as a commitment

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to human freedom, but the commitment

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to human freedom has two moments.

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That is a moment of identification, naming

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and resisting that which, is an obstacle to freedom.

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But let's say that that critical thought

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and social agents

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as successful at any particular moment in time to

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demolishing one of one of these obstacles

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that become freer.

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Now comes the second moment of freedom.

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The second moment of freedom is what I call stewardship

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of freedom is the identification, the naming

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and protection of the conditions necessary

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for the maintenance of freedom transgenerational,

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and what are one of the central elements

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for the maintenance of freedom.

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Equality. Equality in two respects, equality

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as in the equal distribution of freedom,

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but equality also in the access,

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sufficiently to the distribution of, of,

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of material symbolic codes without which

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freedom cannot be experienced at the individual level.

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And it's not sustainable

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As a collective enterprise intergenerationally.

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That's where all strong generationally.

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So if I arrive at equality through freedom

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as a condition, one of the conditions of freedom,

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stewardship, and there the, I ask,

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following question,

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what approach to equality would best honor

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the fundamental commitment to freedom?

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And then I say that the, the best approach to equality

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that would honor a commitment to freedom

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combines two aspects, combines

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a ground or floor below which,

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scarcity of materials involved resources are not compatible

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with a free dignified life.

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Uh, but for everyone who is above that floor,

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the focus ought to be on

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unjustified violations of the principle of equality.

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So I look at equality

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therefore in the second one in terms of

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what kind of violations by what kind of agents, with

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what kind of objects, with what kind

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of consequences the quarterly, are of relevance

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through the lenses that wanna see equality as part

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of the project of freedom, stewardship, the preoccupation,

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or with the quality in the package

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of debt, which takes for the exercise of stewardship

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of freedom over time,

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and a focus on violation of the brings of equality

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leads me to ask, so what is it when

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by equality is violated, what is it

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that is been taken away, deprived,

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not given access to?

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So, so everything is, is distributed in the world.

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There is distribution of rain, there is distribution of,

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of, of cold or, and, and, and hot weather.

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Uh, there is distribution of genes,

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there is distribution of everything.

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So what, what, what matters for us in terms of stewardship

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or freedom, in, in, in regards to distribution

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and how to think about it?

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So then I come up with the analytical framework

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that I think improves our thinking about distribution

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and this analytical framework.

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We're just trying to identify nearly 20 elements

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that are to be under consideration, both

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to identify violations of the principle of

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distributive equality, but also to sort of to to,

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to help us design the kind of intervention

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that is corrected, of violation

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of the principle equality in the name of freedom.

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Uh, and some of the, of the elements, that are,

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that in the work, I think, are,

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obvious, but others out the office,

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but turn out they are not.

18:23.425 --> 18:27.165
So I think it, in, in it's common for people to say

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that distribution is good, concentration is bad,

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at least among sort of progressives in, in,

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in, in our societies.

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I think that is that it, that that a simulation

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of distribution is good concentration of that,

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but I think we don't understand the, the process whereby

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society is organized and support equality.

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So there is a whole range,

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and I try to give this examples of the paper,

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but there is a whole range of distributive action

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that is necessarily preceded by call ative action.

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So there is a dialectic

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or a dynamic between concentration and distribution,

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and not all distribution is good.

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Sometimes you distribute too widely violence and punishment

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and not all kinds of concentration are bad.

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There is no way of providing sort of free

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universal medical

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and education resources, for example, if it's not preceded

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by an enormous conservative effort.

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So the paper therefore tries to, to problematize

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our sort of common approach to issue of distribution,

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how they align with certain positions in the political

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theological spectrum, and give tools

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for thinking more precisely, more richly.

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Uh, we've greater depth and greater theoretical

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or ization potential about distribution.

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But think about the importance of this.

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Uh, think about this sort of long-term social

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and political effects of distribution, which the, the, the,

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the world also highlights.

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So not less than social ability

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over a longer period of time hinges on

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how well we do distribution society.

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We have witnessed,

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recently over the last perhaps 15 years,

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the greatest challenge, level against

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the sort of post second world war welfare, state democracy

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consensus that prevailed and spread all over the world,

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because there are elements of society that think

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of themselves as certain being unjustly,

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harmed in the distribution, distribution pattern,

21:15.145 --> 21:16.525
in those societies.

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So, and we have witnessed that

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unless that is an effective

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distributed scheme in social life, that's, that, that

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that is consistent with the principle of equality

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and allows us to be good steward of freedom,

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society may lose its cohesion, may lose its, its stability,

21:40.735 --> 21:44.195
and we, we stand to pay an enormous price for that.

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So connectively, there is also this political effect

21:47.515 --> 21:52.285
of distribution, how the public general think about

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the institutions under which they, they leave

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and institutions that we, they they have it,

21:58.085 --> 22:01.645
whether they are legitimate or illegitimate, just, or just,

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and there is no institutional order, institutional landscape

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or institutional framework that can survive over

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time unless it is supported

22:16.985 --> 22:19.405
by those own habits.

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Those orders, those who nurture those orders, those

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who populate those orders,

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and those individuals, they will withhold

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their legitimation

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or justification of their order if they think

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that the institutional patterns to which they're subject,

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the screws them up, harms them

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and harms their, their, their, their, their the children,

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the children of the children.

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So unless we take distribution very seriously,

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we put in check the socially political order of society,

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and once the social on society by check, we tend

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to lose freedom.

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I think the work is a challenge to critical legal thinkers,

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to abandon their reliance

23:14.845 --> 23:19.625
or networking for self-identification

23:19.725 --> 23:23.985
as critical thinkers, the challenges, their reliance

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on being just rebellious or contrarian or performative

23:28.885 --> 23:29.985
or experimentalist

23:30.685 --> 23:35.095
and engaging the very hard work of building up

23:35.865 --> 23:40.165
at the highest level of scholarship, a traditional thought

23:41.375 --> 23:44.625
that fits the size of the challenges

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That we have in front of us.

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The challenge of describing in all its complexities,

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the societies in which we have it,

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and innovative challenge of figuring out how is it

23:56.365 --> 23:57.975
that we get ever more free

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and how is it that we sustain every inch of freedom

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that we can gain over time.

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But I think, I think that the, the first takeaway is,

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is really this call to, to intellectual arms,

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to those who think of themselves,

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those very critical thinkers.

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And this and the other one, which I think is, is

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I hope helpful to all is how to think well

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about distributive issues by using the analytical framework

24:27.455 --> 24:29.425
that I, that I begin to develop in this work.

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