Ruminations 38: State Ideology, Social Scientism, and Legal Analysis

One of the great perversions of the 21st century is the merger of ideology and social scientism. The perversion arises in the way in which each hides its effects on the other and together seeks to present something that is both neutral and natural. 

  (Pix (c) Larry Catá Backer 2012)

Ideology provides the cluster of basic assumptions and parameters that define the scope of reality—that is that define the boundaries within which any sort of investigation, including social scientific investigations may be organized. More importantly, it suggests the boundaries within which analysis of the data produced through the application of social scientism can be understood, explained and applied. Social scientism, much in vogue in most universities and among the social scientific disciplines combines a mania for empiricism with an underlying absolute belief in the neutrality and unassailability of numbers. If some matter can be reduced to an equation—that is to a set of mathematically arranged relationships—and if those relationships can then be illuminated through the substitution of numbers (serving as a proxy for reality) into the symbolic representation of relationships represented by the formula, then the resulting product must necessarily be reality. Combined, ideology and social scientism provides first the palette of assumption from which one can construct numerical relationships and the numerical relationships themselves that seem to prove the underlying ideological assumptions on the basis of which the numerical relationships were produced in the first place. The inevitable tautology that is the product of this inherently powerful but circular reasoning, tends to be hidden because the premises of social scientism in the service of ideology are never transparent. Assumptions in the construction of numerical relationships are crafted as second order propositions. Each is itself the inevitable choice that follows from the ideological framework from which an empirical study arises. As a consequence, it seems, social scientism is built on the proposition that the thing can prove itself, with science providing merely a legitimating technique.

This tautology and its ideology enhancing character might be illustrated with a small but perhaps telling example. The ideology of the state is currently pervasive. It posits that the state (and those multi-state entities created by and which serve the interests of states) is the highest expression of political will, and holds a monopoly of power over individuals and things. Though it may be constrained in the deployment of that power, such constraints merely emphasize the all-encompassing nature of state power. State power is evidenced by law which is itself both an object that can only be created by states and which cannot exit apart from the state. Law is accorded a singularly important place in the ordering and control of human and institutional behavior, and is itself legitimated both from its relationship to the state and from the conformity of its creation to those rules which states have agreed serve as a marker of legitimate production (rule of law ideals). Yet states are not the only entities that create rules that bind people and other groups, and the state is not the only enterprise that produces rules that are obeyed. But the ideology of the state requires that those rules be denominated by another name—both to distinguish them from the products of states and to situate them within a hierarchy of obedience that is meant to be somewhere below that of state produced “law.” Where there is a compete identity between territory and rule making it was possible to maintain a working allegiance to this ideology without creating tension between ideology and reality. But in the face of globalization, there are now many spaces where the only rules that bind are those produced by groups and entities that are not states, nor other organs of collective state power. Yet the ideology of the state produces in the social scientists, and the lawyer, a blindness to the consequences, where that blindness is necessary to preserve the power of the ideology to order reality. And so, in the service of the state, for example, social scientism may be called in to survey the paucity of law with respect to a particular governance area—grounded that survey on the distinctions between the rule-products of states and other rules. The result will necessarily show both the paucity of law and the need to extend law to those governance areas where law is absent. But that conclusion must necessarily follow from the presumptions of state ideology that posit both the necessity of law and the basis for regulation and the rule of the state in the production of law.

(Pix (c) Larry Catá Backer)

More importantly, perhaps, the ideology of the state also serves as a powerful force in the construction of taxonomies of rules that, in turn, also serve to reinforce the ideological consequences of state supremacy. The techniques of illegitimacy, devolution, management, mimicry and hybridity are usually deployed to contain or absorb behaviors that may be contrary to, or threaten, state ideology. Rules, other than those produced by states as law are, of necessity, incapable of serving their intended purpose and must be illegitimate. The illegitimacy derives, in part, from their failure to conform to the ideological requisites for legitimate law and making. Alternatively, these rules are understood as being devolved from the state—that is they are a species of law precisely because the state permitted their operationalization within their respective territories through law. In another variation, rules are understood to be a necessary tool of the state in the management of its operation. In this sense, rule making is not merely devolved (and as such serves as a species of law) but is also managed for the particular ends to which states may find useful. Markets, for example, are the best example of this form of ideological re-framing. Management also suggests yet another alternative technique of absorption into state ideology—the notion of mimicry. Anything outside the framing assumptions of state ideology are understood as legitimate, and measured by, their conformity to the forms and practices of state based law. Rule systems are constituted, rules are produced under rule of law frameworks, and most importantly, rule systems constructed as legitimate under the characterization of mimicry extends legitimacy to non-state systems to the extent of that mimicry.  Mimicry itself can be understood as a process--it serves as a means of transitions from outside to inside the ideology of the state. Most positive views of soft law, for example, are premised on the assumption that they serve as a way station to the construction of traditional and legitimate hard law incorporated within the traditionally understood domestic legal orders of states. Lastly, and most hopefully, state ideology, in its arguably most sophisticated form, suggests that rule making outside the state forms an expressive component of a more complex hybrid system in which law is made from the interaction of rule making systems inside and outside the state. This provides a tentative step forward—the definition of law is expanded. But it is also keeps one foot very much within the traditional ideological framework. The purpose of hybridity is to buttress “law” and to reinforce its hegemony. But that hegemony also serves to reinforce that of the state—it brings governance into law and therefore into the state. Yet there is a subversive element here as well—for just as a project to expand the definition of law into hybrid contexts can serve to discipline non-state rule making within the ideology of the state, so might it also serve to move beyond that ideology by detaching law from its firm anchorage within the state. If law can be hybridized, then it also might be applied to those organs of rule making that are not the state, and in so doing attach law to non-state governments—like multi-national corporations. Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems (March 1, 2010). Penn State Legal Studies Research 10-2010. Available at SSRN: http://ssrn.com/abstract=1568934 or http://dx.doi.org/10.2139/ssrn.1568934

Taxonomies are important not merely for producing an organization of “things” that makes the world and the relationship among things easier to order, and to understand. It also, by doing precisely what it was meant to do, also produces the structures through which ideology can be applied, and reified, within the fact-producing universe of social scientism. Yet in doing so it also exposes the contingency of social science’s “facts.” And thus the ultimate power of facts, in the form of relationships derived from data generation and proven by the reduction of behaviors to the accumulation of relational record keeping, is not merely to reinforce ideology by masquerading as something they are not—facts existing beyond the context of the knowledge structures through which they are produced—but in managing those who are the recipients of this information (politicians, lawyers, the public, technocrats, etc.). And that, of course, is the ultimate purpose not of data driven social scientism, but of the ideology in the service of which such scientism is necessarily deployed. Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. Available at SSRN: http://ssrn.com/abstract=1081242.

Thus, consider the problem of the “fact” of the corporation. Something that is on its surface easy to discern becomes impossibly problematic once conflicting ideological structures are brought to bear on the question. If one were to adhere strictly to the ideology of the state, the corporation cannot exist except as a reflection of the state. Is this certainly the fundamental understanding in Stalinist and Maoist Marxist Leninism. The Cuban Marxists understand the corporation as the state in form, but detached for the use in particular purposes. In the West, this notion heavily influences the idea that corporations are no more than the receptacle of privileges given it by the state in whose service it is to be used. This “fact” produces significant consequences—from the judgment that corporations may have only such constitutional privileges as derive from constitutional rights bearing beings (the idea commonly held in European human rights jurisprudence) or that such rights are limited to the protection of the property of such being held in corporate form (once an important measure in the United States), or that the corporation cannot be more than property in the hands of its shareholders (a view still widely held in the United States). The ideological structure influences the focus of vision. So focused, social scientism can be deployed, for example in the form of so-called “Chicago School” or “Law and Economics” empiricism, producing facts driven by and in the service of the ideological presumptions from which they derive. The same, of course, applies to the institutional ideologies of globalization that has recently provided a challenge to the state based ideology of corporate organization. Backer, Larry Catá, The Corporation as Semiosis, 'Citizens United,' the Signification of the Corporate Enterprise and the Development of Law (February, 28 2012). CPE Working Paper No. 2012-2. Available at SSRN: http://ssrn.com/abstract=2012569.

This is not to suggest that empiricism in social sciences plays no useful role or that the equation-and-data driven relationships developed through empirical modeling are necessarily unreliable, or worse, inevitably misleading. Rather, it serves to remind us of the necessity of the need for caution in the use of these techniques and of the inherent limits of the usefulness of these analytical techniques. Empiricism produces knowledge of fact-as-fact; it provides a basis for understanding the character of a thing as “fact” in relation to that to which it relates and from which it can be distinguished to some end (e.g., wheat-corn; red-white, flower-leaf, etc.). But facts are meaningless out of this relational context—that is they cannot be identified usefully and are unknowable as “fact.” But usefulness is a matter of the ideological structures around which facts are developed (are two things ever identical?; Two snowflakes versus two flakes of commercially produced cereal). Something does not rise to the conscious level of fact unless it is understood as such and that understanding is only possible within the reality framing assumptions of ideology. To speak about “law” and the “state”, then, is to understand these terms within an ideological structure that situates and privileges certain constructions and not others; data driven analysis that accepts the ideological premises of the state will necessarily not merely reproduce it but will inevitably serve to strengthen its premises by the very application of those premises in the service of data generation and interpretation. While this is useful to answer questions such as—does the ideology remain useful, does it serve its ends, has it deviated from its position and purpose—it serves less well to either identify or relate to facts and ideas outside of the ideological construct from which it arises.

(Pix (c) Larry Catá Backer)

I treat some of these themes in more detail elsewhere:

Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems (March 1, 2010). Penn State Legal Studies Research 10-2010. Available at SSRN: http://ssrn.com/abstract=1568934 or http://dx.doi.org/10.2139/ssrn.1568934

Backer, Larry Catá, The Corporation as Semiosis, 'Citizens United,' the Signification of the Corporate Enterprise and the Development of Law (February, 28 2012). CPE Working Paper No. 2012-2. Available at SSRN: http://ssrn.com/abstract=2012569.

Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007. Available at SSRN: http://ssrn.com/abstract=1081242