Apocryphal Jurisprudence

Abstract

The purpose of the present article is to present to readers a conspectus of post-structural perspectives on legal theory which, I will argue, have been gravely misunderstood precisely because they have so often been discussed within the inappropriate terms of the bounded disagreement between CLS and positivism. My argument is rather to clarify the ways in which these new approaches ask very different questions and derive from different and irreconcilable concerns. Recent scholarship has sometimes spoken about jurisprudence as a battle between two warring tribes: “the orthodoxy” and “the heresy”. A heresy is a disagreement within a tradition, and a tradition, far from being a static structure of rules or doctrines, is an argument through time. On one level, then, a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions. To wage war requires a disagreement as to denomination, but an agreement as to currency. The field of mars must be determined; cannons must meet cannons; victory must be recognizable.4 Ironically, hierarchs and heresiarchs, patron saints and sinners, desperately need each other, for they mutually constitute their own importance: what they reject on the level of content, they sustain on the level of discourse. The current essay suggests that poststructural and critical theories of law represent neither heresy nor orthodoxy, but an apocrypha – a range of rejected or disputed perspectives that cast a thwart light on standard questions and open up a very different mode of engagement and range of responses. Using the seminal Australian case of Kruger as its case study, this essay shows how apocryphal jurisprudence might destabilize orthodox and heretical approaches to law alike.

Keywords: legal theory, poststructural and deconstructionist approaches to law; Kruger; indigenous law Australia; genocide Australian aborigines; heresy orthodoxy apocrypha