The Presence and Absence of Legal Mind: A Comment on Duncan Kennedy’s Three Globalizations

Throughout The Birth of Biopolitics, Michel Foucault chides himself for engaging in "schematic" exposition, by which he meant (by his standards) unforgivably "abstract" or "bald" or "sketchy" or "stark" generalization. (1) Foucault's historical method demanded an intense skepticism toward universals--"primary, original, and already given object[s]," for example, "the sovereign, sovereignty, the people, subjects, the state, civil society" and so on--from which, he alleged, conventional historical analysis was prone to derive the meaning of concrete practices. (2) Foucault desired to start with these practices not in order to use them to interrogate the universals ("the historicist reduction") but to determine their historical meaning in the absence of the "grid of intelligibility" that the universals supplied: "Let's suppose that madness does not exist ... what can history make of these different events and practices which are apparently organized around something that is supposed to be madness?" (3) It was galling, then, that the compressed time of a lecture frequently required of Foucault the expository equivalent of the economist's cliched a priori: "assume a can opener." Duncan Kennedy's Three Globalizations of Law and Legal Thought, 1850-2000 (4) (Three Globalizations) brings The Birth of Biopolitics to mind for two reasons. First, like Foucault, Kennedy engages in schematic exposition. (5) The difference is that Kennedy does not apologize for doing so: rather than contradict his method, schematic exposition is entailed by it. Second, notwithstanding this difference in method, Foucault may be able to help readers understand the puzzle of Kennedy's third globalization: that is, its incoherence, or its lack (when compared to the first and second globalizations) of any "discernible large integrating concept." (6) I pursue both of these matters below. But first I feel it necessary to situate myself vis-a-vis discussions of Three Globalizations that have already taken place. Kennedy's essay, which was published in 2006, (7) was used to kick-start a workshop on contemporary legal thought held in October 2011 at the University of Colorado Law School and organized by Pierre Schlag and Justin Desautels-Stein. (8) A second workshop, which then concentrated exclusively on contemporary legal thought, was held at Harvard Law School in June 2013, some of the fruits of which appear in this issue of Law and Contemporary Problems. As it happens, I was involved in neither workshop. This article was solicited late in 2013 by Justin Desautels-Stein after one of the Harvard participants dropped out, and I, in my innocence on a pleasant autumn afternoon, wandered too close to the University of Colorado Law School. One might wonder why, as an absentee from those earlier conversations, I would become involved now. After all, I have no prior connection with Kennedy himself--neither student nor colleague, nor friend (nor enemy). We have met on a couple of occasions. I was, of course, influenced as a youthful scholar by critical legal studies (CLS), but I was a pretty distant fellow traveler (both literally, given that I spent the 1980s in Australia, and intellectually, given that CLS never displaced an even more youthful allegiance to Marxism). Though I was well aware of Kennedy's leading role in CLS (who could not be?) it was the self-identified CLS historians--Morton Horwitz, Robert Gordon, and others--with whom I formed lasting contacts. (9) In fact, the reason for my involvement in this symposium is quite simple: To a historian, Kennedy's work should be highly intriguing. Much of his early scholarly career was devoted to the production of an extended (though mostly unpublished) history of Anglo-American legal thought during the later nineteenth and early twentieth century, The Rise and Fall of Classical Legal Thought. (10) Kennedy's manuscript became a samizdat classic during the heyday of CLS. However, outside the CLS circle, his brand of intellectual history has not been widely pursued in the general field of legal history, where social history has long been dominant. …