Balkinization  

Thursday, May 03, 2007

The Bush Administration Vindicates Critical Legal Studies

Brian Tamanaha

Critical legal studies is often dismissed today as a faddish movement of comfortable, radical leftist intellectuals at elite law schools who, in the 1970s and 1980s, spouted extremist nonsense about the law. For those who don’t know, the core of CLS thought can be pared to its mantra: “law is politics” (through and through). CLSers criticized legal liberalism for putting up a surface neutrality that conceals the deeply ideological bent and bias of law.

Although I have friends who participated in CLS, and I have always admired their conviction, much of what they said about law struck me as one-sided and exaggerated…until now.

What is leading me to rethink the soundness of CLS is the extraordinary, unabashed, unrestrained infusion of politics into law by the Bush Administration.

Exhibit one is the Bush Administration’s systematic ideological vetting of federal judges at every level, an effort which is aimed at producing conservative interpretations and applications of law. When this vetting is objected to, conservatives are wont to respond—after mouthing the piety that they only appoint judges who are committed to applying the law—that liberals do the same thing (or would if they could).

Exhibit two is the thorough politicization of the Justice Department, reflected in systematic ideological vetting of candidates for ordinary staff legal positions, as various investigations are beginning to reveal. Conservative defenders respond that Bush is the head of the executive branch and it is perfectly legitimate to hire people who support his (political) agenda.

Exhibit three is the thorough politicization of administrative agencies, in which ideologically (and economically) motivated people have been appointed to head agencies and departments, and have used their power to advance private interests. The recent resignation of Julie MacDonald (former head of the Fish and Wildlife Service)—who “gave internal agency documents to industry lawyers and a lawyer from Pacific Legal Foundation, all of whom frequently filed suit against the Interior Department over endangered species decisions”—is just one example of a comprehensive effort by the Bush Administration to politicize the regulatory apparatus that establishes and enforces a huge bulk of federal law. Conservative defenders say that liberal administrations appoint tree huggers and bird lovers (or would if they could), so what’s the difference.

Citing additional exhibits, of which there are many, would be redundant. All of these actions demonstrate the conviction of the Bush Administration that “law is politics” (through and through).

The Bush Administration has vindicated CLS. An apology is due from the conservatives and moderates who excoriated CLSers at the time for cynicism about law. On this score, the Crits pale in comparison to the Bush Administration.

Comments:

Professor Tamanaha,

It seems a trifle impertinent to say, "Welcome to the fold," but I'll risk it anyway. Welcome.

My grounding in CLS isn't entirely orthodox, in part because I part company with the Marxists. Marx, as a thinker, was the type who would divide by zero. But the central premise, "law is politics" seems unavoidable. Law certainly is power, and power is unavoidably political.

But I think there is an even deeper manifestation of this problem with not only the current administration but within the GOP core, perhaps best symbolized by the infamous 1996 GOPAC memo. In that memo Gingrich exhorts members to consciously craft their every communication using "good" words for their party's efforts and "bad" words for the opposition. While undeniably effective, such measures have a serious drawback---they lead to the demonizing of the opponent. Having demonized all who oppose, what incentive remains to allow for checks, balances, second thoughts, wider or multiple views? The simple tragic flaw of the GOP as we see it today, 11 years after this memo, is that of hubris, the belief that they can do no evil and their opponents have nothing to offer. Accept those premises and the acts and ideas of even Bush the Younger or John Yoo aren't so hard to fathom.

Law is politics, because law is power and power is politics. And some political players are playing a zero sum game, playing to win. Others are playing a win-win game where all participants are valued. My CLS would be the latter, and we could use you on our team.
 

Bleh, I would just use another tool of CLS. Liberals decry the Bush administrations use of politics. Well, of course they do, because liberals have successfully defined the status quo as somehow non-partisan. In fact, much of the current nonpartisanship is in fact very partisan--towards liberals. So, the current status quo and its definition is merely a facade for the political agenda of liberals. The decrying by liberals of the Bush administration's techniques in the DOJ, etc... is an effort to keep what is in essence a political status quo that helps them. Well, Bush is tearing down this struture of liberal political hegemony. He is exposing it at the roots for what it really is. He is only using politics to expose the politicization that has already occured and to demystify this structure of power.

See, this is fun.
 

"The Bush Administration has vindicated CLS."

No, the exact opposite has happened. The Bush administration has shown the danger of CLS when it's more than just a vague theory about power. Once power is considered the base of all things political, power begins to manifest itself at all level of government. And this is hardly the first time that this has occurred--just look at Weimar Germany for an example.

And CLS in practice damns legal realism just as surely as communism damns comprehensive state socialism. For both, you have one theory taken to its extreme conclusion. It looks beautiful as a theory, as well as satisfying some intuitive ideas about how things work. But for both the secondary effects overwhelm any possible benefits that might accrue.

It is easy to scoff at the foundations of natural law. It is much more difficult to have an alternative theory, the practice of which completely corrodes any ideals the theory attempts to espouse.
 

Someone: ...much of the current nonpartisanship is in fact very partisan...see this is fun.

Yup, loads. Your example puts me in mind of a television show which regularly features one of recent history's most partisan players, yet which bills itself as a "No Spin Zone."

Yet there is a difference. In my example we have one side self-servingly (i.e., to great commercial profit) doing what you only accuse the other side of doing in the abstract. There's further fallacy to your argument, in that you use "liberal" imprecisely and inconsistently. To the extent our Constitution is aimed at preventing tyranny and maximizing liberty then non-partisan support of the Consitution must by definition be "liberal." But someone (although I can't speak for any particular someone) prefers to reserve liberal as a connotative brush rather than risk a look at any substantive descriptive values denoted thereby.

Thanks for playing. Don't forget your consolation prize on the way out...
 

zathras: It is easy to scoff at the foundations of natural law. It is much more difficult to have an alternative theory, the practice of which completely corrodes any ideals the theory attempts to espouse.

Feh. You flatly assume that which is to be proven. You can do better, and must if you want to be taken seriously. Do you contend theories of "natural law" are less prone to being picked apart or collapsing under the weight of their own injustices and inconsistencies? If so, how do you support such a naive claim? If this isn't your claim, just what are you asserting? Or were you only engaging in another connotative smear absent substantive merit?
 

Robert,

Whatever the flaws of various theories of natural law, at least they do not carry the seeds of their own destruction like legal realism and CLS. If you believe in the absence of any fundamental principles, it is hard to take legal structures seriously. If democracy is just a social construct, why not overthrow it and have the Leader impose his will on the people? If the right to be free from torture is not absolute, then go ahead, torture, no matter what that scrap of paper the Constitution says.
 

Zathras: If you believe in the absence of any fundamental principles, it is hard to take legal structures seriously.

Straw man; no one has put forth the claim that there are no fundamental principles. Try again. Or not. No big deal. Unless you actually have some substantive claim to make which you would like to have taken seriously. I won't be holding my breath. The closest you come is to state, "[theories of natural law] do not carry the seeds of their own destruction..." Seems to me there are entire schools of thought based on the error of this statement. I trust I don't need to invoke them by name, that a quick look at the title of this thread will suffice to refresh your memory?

As for me, I like to think that CLS is based on the Natural Law that while Might makes Might, it doesn't necessarily make Right, and that law is a function of Might always, Right only when Might has conscience, compassion, wisdom, themselves born of human interaction, breaking bread rather than arms. To which end I invite private correspondence, if you are so inclined. We can struggle mightily but without acrimony, if we can establish some common humanity. beau ( a t ) oblios-cap ( d o t) com.
 

Robert,

Lol. Its not in the abstract. Career bureaucrats in the government in general and the DOJ in particular are predominantly of the liberal persuasion. Your accusation only goes to my point.

Your defense of the status quo is only to maintain the illegimiate hierarchies of power that exist in the current institutions. If they are illegitimate in that they exist to serve the unequal balance of ideological power within the institutions, then it is necessary to use political power to remove these false hierarchies.

As to my "liberal" fallacy, please tell me that you are joking. You do realize, I hope, that the use of one definition of a word in no way undercuts the formal valilidity of my argument. Perhaps you are not familiar with the many uses? Allow me to help you. You seem to be referring to "classical liberal" values. I value them as well. I used the term liberal to designate a part of the political/ideological spectrum--it was more than obvious. Furthermore, that is how the term liberal is used most often in discource. Attacking me for using a term by one of its definitions instead of another just doesn't make any sense in this context. The fallacy is all in your head.

Perhaps next time you will make a substantive rebuttal.
 

Robert,

Please explain how CLS can assert the "rightness" of anything. As a matter of theory, it cannot provide the answers, only possible answers, without being able to explain why one is better than another. Your appeals to "conscience, compassion, wisdom" just don't make any sense in a CLS context. Identity and the individual are social constructs, how can rights be attached to nothing?
 

someone: ...Your defense of the status quo...

Excuse me? I defended the status quo? Please support your claim. All I did was poke fun at your nonsense about "the current non-partisanship", which is not the same at all.

As for not being in the abstract, my example was sufficiently specific for you to check your tv guide and catch the next broadcast. Yours remains, well, abstract, general.

Regarding my complaint about your abuse of the word, "liberal", you mis-state me. I did not call you out for using the wrong meaning. I called you out for self-serving shifts of illegitimate pejorative connotation and value-free denotative ambiguities.

Sandwiching your comments between a "Bleh..." and "See, this is fun." speaks to reliance on passive-aggressive attacks of connotation in lieu of substantive, good-faith engagement on issues. I responded in kind.

someone: Your appeals to "conscience, compassion, wisdom" just don't make any sense in a CLS context.

Really? I suppose we will have to agree to disagree on this. I do not personally have experience with any context where those three abstracts don't make sense or are not worth striving for. I said up front that my take on CLS is unorthdox.

I'll extend to you the same offer I made to zathras; if you're really interested in dialog send me a private email saying so. I truly am open to strong dispute with good-faith interlocutors. If I have misjudged you I will apologize. You can search the archives and see it does happen from time to time.
 

Robert,

It isn't a fallacy when I use the word liberal to denote a particular part of the political spectrum, as well as its connotative meaning. You may not like me using as a pejorative and descriptive term, but you umm... break new theoretical ground to say its a fallacy (at least in how I used it.)



The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures. That is what liberals are trying to maintain by stopping Bush, so this complaint of yours makes no sense.


Finally, there are "unorthodox takes" on CLS, and takes that are flatly contradictory to the tenets of the theory. It isn't CLS if you deny the very things that comprimise the theory. Of course, this assumes that CLS can be anything beyond a social construct itself . . . and round and round we go.


Haha, okay, I'll stop. I've been pulling your leg the whole time. This is actually Humble Law Student. I still use that account, but for reason everytime I post a message, it lists my name as "someone" even though I use my humblelawstudent account.
 

No, the exact opposite has happened. The Bush administration has shown the danger of CLS when it's more than just a vague theory about power.

Vindication and demonstration of a position can co-occur, and are not polar opposites. Most social theory intends to explain observed relations between social elements, rather than prescribe how those elements should be arranged. Furthermore, the accuracy of a social explanation is not contingent upon the benefits that society gains through the arrangement; society and its laws are perfectly capable of being non-adaptive.
 

PMS_Chicago,

I agree that much of contemporary social theory is framed in this way. However, there is a pervasive nihilism in actual approach taken which causes such theorists to focus on negative motivations, and this skews any analysis. Analysis is done is terms of power. Even ostensibly altruistic acts are assumed to have an ulterior motive.
Taking such a superficially pragmatic approach skews the analysis.

To echo something I said earlier, it is trendy in academe to be flippant of moral values. However, such a 1-dimensional view of one of the most pervasive aspects of society necessarily gives a very imperfect view of society.
 

someone: I've been pulling your leg the whole time.

SNAP!!! B^)

Been wondering where ya was, and dang glad to see ya. You might, if you're willing, take a moment to substantiate that I really am capable of apologizing when I'm in the wrong.

someone: You may not like me using as a pejorative and descriptive term, but you umm... break new theoretical ground to say its a fallacy (at least in how I used it.)

I admit to trying my damnedest to do exactly that, to break new ground. Lakoff has tried to make it about "framing" but I think he's really missed the boat. I think the meta-frame of "dialectic or debate", of "cooperative venture or zero-sum game" is the first order of business. Next is recognizing that what Newt teaches in the 1996 memo isn't about substantive framing as Lakoff would have it, but about connotative framing, which is much oilier and corrosive. So, yes, I very much do look for examples of use which allow plausible deniability with respect to the pejorative connotations.

someone: The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures.

Nonsense. Or at least self-serving. The status quo is what is at the moment. If you get to start picking other moments then the term really does lose all meaning. Right now the status quo is post-aids, post repudiation of 60s hippie culture, post Reaganomics, post the development of hugely successful commercial political infotainment from Rush and Ann and Bill, post GOP capture of all three branches, and, frighteningly, largely by that segment of the GOP which can say with a straight face that things "could get so bad" that we should consider naked fascism. I hesitate to point out that the difference between a military takeover and a popular revolution is profound, despite the truth that both would feed a certain tree with blood of two different types. Maybe Jefferson should've been more specific on that formula.

someone: this assumes that CLS can be anything beyond a social construct itself . . . and round and round we go.

Indeed. I part company with the marxists and traditional cls, I suppose, not in the least for my insistence in the ubiquity of certain human values at the individual scale which cannot be supported logically at the societal scale. I have a simple system: What is hateful to me I will not do to another, and I try to brighten the corner where I live. In 40+ years of searching and reading and thinking and practicing these two seem sufficient. Any system which fails to incorporate them, in some recognizable fashion, strikes me as morally bankrupt. But I am not hobbled by a foolish consistency, so don't bother waving your hands about my invocation of morals here. There is an argument that the reason against having a bill of rights was not that the rights weren't inalienable and didn't need protecting, but rather that any attempt at a black-letter, legalistic enumeration thereof is bound to be "gamed" by those who profit from abrogating them. Some days I think that argument is wiser than we give it credit for.

How's your studies going? Obviously I'm neglecting mine this week in favor of playing here...but that will probably end tomorrow. But after seeing, meeting Prof. Levinson last week, well, I couldn't stay away.
 

Law, in liberal principle, is meant to legitimate power, by at least going through the motions of pretending toward some kind of objectivity. That always struck CLSers as at best naive, more likely hypocritical, and perhaps simply a cynical ploy. They were wrong then, and they are wrong now, and the Bush regime actually proves it.

What the Bush regime has done is to show that even if the pretense of objectivity is never complete, it is nonetheless important to demand that such a pretense be maintained, because giving up on the pretense of objectivity fundamentally delegitimates institutions which, at the end of the day, we need. The Bush regime in the nakedness of its politicization, undermines core values without which a Republic cannot survive. These institutions may be based on a fundamental hypocrisy, but that's better than the naked exercise of power. Marriage generally is based on fundamental hypocrisy, too, but that doesn't mean it's not better than the alternatives.
 

I would make a related, but I think more precise, and so more comprehensive, point.

The proper motto of the Bush administration is not "law is politics."

It is "the party is the state."

The natural corollary, of course, is that "nothing outside the party can be in the state." Hence the recent published fantasies of dictatorship and military coups by people like Mansfield and Sowell. As the prospects for their defeat grow, the right's attacks on the legitimacy of any government headed by Democrats - and, indeed, constitutional government per se - will necessarily grow.

They spent eight years denying the legitimacy of Bill Clinton's presidency. That was batting practice compared to what's coming.
 

Not knowing much about CLS, I assume that it's another post-modernist attempt to tear off the mask. But the problem is that the mask is important, if not essential to the functioning of any system - all systems of law, religion, ritual and such require a mystification of their underlying realities to function in any sense.

The law is like social signaling systems in biology. Male rams, for example, need to know who would be the strongest in a fight. But if they fought no holds barred every time, even the big boys would get severely damages. So instead they butt horns, which to a large extent approximates their relative physical power. Now, for this to work, the rams do need to know that they are signaling their relative strengths; in all actuality, the stability of the system is enhanced by none of them knowing, and thereby avoiding some "smarter ram" taking advantage of his ability to choose when to play the game, and when not to. In that case, the system would quickly collapse and the rams would be returned to a "state of nature" that is in no one's best interest.

A similar case is with vows. Many systems have a need for honesty at some level, so they've developed vows, that are by definition true (see Austin on operative language). However, many of these systems depend on an irrational base: some invocation of deity or other magical sanction. That sanctification is needed to keep people from seeing the underlying reality of the vow. As soon as they recognize the practical basis of the statement, the system of vows is liable to falling apart - the mystery is essential to distinguishing vows from normal statements. The same occurs with the associated rituals: they need to appear sacred to avoid awareness of the play-acting going on.

This is a general problem with most post-modern critiques. They recognize the power and function of the mask, but they forget to look at the real alternatives.

Sometimes it's better to tie the tyrant down in his own legitimacy, than to allow the tyrant to openly display his power. We lose out as much as the tyrant does when he's forced to actually use his power. On the other hand, when the mask does not correspond to the real underlying power, obviously some rewriting of the script is in order.
 

Someone,

Your statement that the current status quo is partisan and George Bush is "cleaning house" is a bit too vague for me.

What are you proposing to replace the current liberal bias? A conservative bias? True non-partisanship? A balance that can swing either way depending on who is in charge? And whatever you are proposing, what will it look like?
 

Someone,

You write, "The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures. That is what liberals are trying to maintain by stopping Bush."

Surely you realize that the GOP held the White House for 20 of the 32 years prior to Bush 43's inauguration, right?

If Bush is engaged in "house cleaning," the next President will have to re-enact Hercules's time in the Augean Stables.
 

To all,

My statements were mostly tongue-planted-firmly-in-cheek. I don't believe most of the CLS nonsense. CLS does have some limited contributions to make, but it hardly provides a legitimate meta-explanation of the law.
 

Someone,

You don't believe that people act in their own perceived interest?

Funny kind of conservative you are!
 

Random,

Lol, there you go with your caricatures again. Conservatives would say that individuals generally act in their economic self-interest, but at the same time many conservatives would say there are "objective goods" or "moral truths" that we should pursue outside of limited self-interest. Libertarians, in particular those who follow the economic analysis of the law (Posner) would argue that people generally don't act outside of their own self-interest--conservatives don't believe this, only in a narrower sense.

You know, random, this would be a lot more beneficial if you made a half-hearted attempt at understanding. . .
 

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