Socio-legal science typically has a normative drive towards ideas of democracy, civil liberties and equality. Thus, French philosopher Eribon's “Returning to Reims” and his description of leftist academics losing touch to everyman and -woman could make us nervous – or, on the contrary, keep calm, as research into “law in action” runs less of a risk of distance to society's shop-floor level. But as part of academia, it still stabilises hierarchies of knowledge. Eribon obviously hit a nerve among politico-intellectual communities when he described how different societal inequalities – mostly education, income, sexual orientation – compete with each other. These insights are not new, but meet a desire to understand the recent success of European nationalist parties. The US-American election barely needs to be mentioned to start pondering about why working-class people vote against social security, and why migration can so easily figure as a scapegoat.

Does socio-legal science have something to offer to these questions, can it contribute insights into socio-legal possibilities of equality? It can refine its fast analysis on “access to justice” – not only by adding the aspect of “access to legislation” but by theorising links between legal and political participation. For instance my current research in Germany shows how unemployed people have lost confidence in parliaments, but not in courts. Germany is the only country with a separate branch of courts for matters of social security.

Furthermore, socio-legal science can not only scrutinize the legal profession, but also the legal clientele, and thereby, give voice to people from diverse societal positions. In addition, it can strengthen the connections between theoretical critiques of law and empirical data. For instance, growing hierarchies with regard to education have been analysed thoughtfully by 20th century's British sociologist T.H. Marshall. In his fundamental article “Citizenship and the Social Class” he describes the overall trend of increasing equality of rights, including socio-economic rights, and puts it into contrast with the simultaneous spread of capitalism as system of inequality. Searching for immanent boundaries of growing equality, he identifies education as the category of inequality which will gain influence, as it is connected to employment and perceived as legitimate. Thus, this aspect of class would become more important; “Returning to Reims” would become more difficult. These prediction fits incomfortably well into empirical data about current electoral participation which shows a high and growing degree of socio-economic inequality. Not only do upper-class people participate to a much higher degree in elections than lower-class people, but this distance is even growing when overall economic inequality is rising. But the role of law might be interesting: Marshall described courts as instrument of civil rights, disconnected from social rights. Germany's courts for social security – which offer more hope for unemployed than parliaments do – prove him wrong. Socio-legal science can contribute insights into the role of legal institutions and modes of regulation in the long-term conflict between democracy and capitalism.

Health is generally considered a fundamental right. The World Health Organization established this right a long time ago, and as such it is included in the constitutions of many countries. However, what if health is primarily a need of modern society, rather than a right based on shared values? What if medicine and everything that has to do with well-being (ie treating and preventing illness and improving living conditions, food security, etc.), finds its origin only in the society, which in order to maintain itself specifically requires a system that takes care of individuals?

This is a hypothesis that could be investigated through seemingly distant, or even incompatible, research areas like system theory and critical theory.

Luhmann’s system theory assumes that the bodies and minds of individuals are not parts or elements of society, but that they belong to its environment. However, they constitute such an important role in the reproduction of society that special social subsystems (such as the medical system that is designed to cure diseases), were formed. If, therefore, health appears as “the only value that can be placed beyond any ideological controversy” (Luhmann, 2015), the reason can be that the system for curing disease is key to ensuring the maintenance and reproduction of society itself: bodies must be cared for, ultimately, to ensure the inclusion of persons, of consciences in communications.

Critical theory, for its part, suggests that health is one of the many areas exploited for economic purposes. For example, health creates consumers, even when life and death are at stake. Health, then, would be a subjectivisation mechanism, creating “subjugated subjects” (Han, 2014), who are materials available for power. Thus, health, medicalization and care for the body are the foci of a “politics of life”, or in the terms of Foucault, biopower. A “governmental rationality” based on a type of entrepreneurial government, would then be at the root of the claims of the right to health.

In this sense, it is possible to make a connection between systems theory’s idea that bodies and minds must be “treated” and “cured” to ensure that they can participate in communication and critical theory’s idea that neoliberalism needs to “manage” the human being, not in a repressive way, but “gently”, to satisfy the inherent logic of society.

The fact that the right to health is usually fully recognized only for those who hold citizenship of a State (who, besides being a body, is also a person), encourages the idea that health is a systemic necessity masked by law in order to submit transparent subjects to their logic.

References

Han B.-C., Why revolution is no longer possible, «Süddeutsche Zeitung», 02/09/2014; doi: https://www.opendemocracy.net/transformation/byung-chul-han/why-revolution-is-no-longer-possible.

Luhmann N., Anspruchsinflation im Krankheitssystem. Eine Stellungnahme aus gesellschaftstheoretischer Sicht, in P. Herder-Dorneich, A. Schuller (edited by), Die Anspruchsspirale. Schicksal oder Systemdefekt?, Kohlhammer, Stuttgart, 1984.

"This machine kills fascists". These words were scrawled across the guitar of Woody Guthrie, the Oklahoma-born American folksong writer and author of the iconic "This Land is Your Land", along with other songs on class and injustice in the U.S. during the American dustbowl. Guthrie, an economic migrant himself, traveled across the country bearing witness to the deadly effects of economic inequality. He used the tools of his trade during a dark period in history as a metaphorical weapon against oppressive forces at home and abroad.

Woody Guthrie (cc)

There is a similar sense of urgency at this moment, as political dark times appear to be settling on us once more. From Trump to Duterte, a new authoritarianism, distinctly autocratic and comfortable flirting with populist violence, is being elected democratically. These and other "strong men" are emerging along with the rise of various shades of reactionary populism across the globe. Promises of a better tomorrow based on an idealized yesteryear have activated populist movements in many places. In the United States it is however not conservatism that has been championed. The American version of this seemingly transnational movement is an iconoclastic rightwing movement that has been built upon the wreckage of neoliberalism and set aflame by the so-called alt-right's politics of scapegoating.

The situation was already urgent before Trump's election. One would be hard pressed to deny that the global challenges we face have reached a critical state for some time. From climate change, environmental destruction, economic inequality, conflict and migration, we are witnessing a general shift, on both the right and left of the political spectrum, as people are decrying the inadequacy of the status quo and institutions in place to deal with the crises communities are facing.

Immediately following Trump's election, organizations in the United States, such as Greenpeace, the American Civil Liberties Union, or the Washington Post, received significant private contributions. In response to the election results, people are moving to strengthen institutions outside of government that are immediately under threat by, and are threatening to, the coming Trump administration. As they announced, those institutions will undoubtedly remain engaged in resistance in the form of activism, litigation and reporting. However, what has been particularly disheartening to witness is how frequently people have already reiterated their confidence that, because Donald Trump was elected democratically into a system of "checks and balances," the institutions would ultimately discipline and contain the worst of what could be expected from the rhetoric of the presidential campaign. It is, however, quite possible that governmental and legal institutions will instead absorb his, and his advisers’ positions, and formally legitimate what was precisely so abhorrent in the context of the electoral campaign.

Institutions are shaped as much as they shape. The University is in this context a less obvious institution potentially under serious threat in the United States. Universities and faculty are beginning to mobilize to affirm core principles of the university to cope with the coming Trump administration. MIT recently affirmed a commitment to scientific inquiry, a principle that is, however extraordinary it may seem, under increasing threat from the alt-right. Similarly, it was reported that one professor recently proposed a code of conduct that simply affirms, for example, that professors will not inform on their students. These measures may appear paranoid or extreme from the outside. But the University in the U.S. has become increasingly a site of political contestation as a rising shade of rightwing reactionary politics has mobilized against both Liberals and the Left. The organization Turning Point USA, self-described as committed to "free markets and limited government", has created a "Professor Watchlist" that names professors who "advance a radical agenda," along with their supposed offense and a photo. The American version of anti-elitism is taking on a peculiar shape as anti-intellectualism putting academia on the defensive. 

If the academy is the conscience of the nation, as a wise colleague of mine frequently stated, then in this moment of crisis the University will be a central coil of the machine combatting authoritarianism and autocracy, just as it comes under particular scrutiny by reactionary forces. It is the moment for faculty, staff and students to begin organizing and working towards a progressive form of resistance to reactionary forces.