The Other Side of Critical Legal Theory

JB

Brian's last post on Critical Legal Studies and the Bush Administration has finally gotten me to write down a few things I have been thinking about for about a number of years about the relationship between Critical Legal Studies and political and legal events since the 2000 election.

CLS was, at least in my understanding and in my scholarship, always premised on the relative autonomy of law from politics. Law was not itself politics, but a surprisingly plastic medium of discourse and power. Law mediated and transformed ordinary political struggle; and through law political struggle and ideological disagreement resurfaced in new guises, facilitating power but also tempering it and redirecting it.

Implicit in this critique were two equally important points. The first-- emphasized most frequently by CLS scholars, was that law would generally tend to reflect the most powerful interests in society at the expense of the weakest interests. The second-- hidden but always present in claims of relative autonomy-- was that law nevertheless served as a discourse of ideas and ideals that could limit, channel and transform the interests of the powerful. (My colleague Robert Gordon's work, and in particular his essays "Law and Ideology" in Tikkun and "Unfreezing Legal Reality" in Florida State Law Review are excellent examples of this second theme.).

The relative autonomy of law from politics-- rather than its complete autonomy-- simultaneously posed a threat and a promise. The threat was that law would fail to do much more than ratify and legitimate the interests of the powerful; the promise was that it could hold off the worst excesses of power by giving people discursive and institutional tools to talk back to power, to restrain its selfishness and inhumanity, and to imagine finer, better visions of human association.

The threat and the promise of law were joined together inseparably. What gave law its power to legitimate was its ability to re-describe unjust and unfair events, social practices and institutions in terms of valued ideals of human association like consent, freedom, equality and fairness. In the hands of lawyers and politicians, law could disguise, mystify and legitimate great injustices using the very ideas and ideals we admire. But law could only do this because it appealed to these values and claimed to be trying to put them into practice through law. That is, the recourse to law forced the powerful to talk in terms in which the powerless could also participate and could also make claims.

The CLS critique of law was thus Janus-faced. On the one hand, powerful people used law to subordinate others and secure their own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human dignity. On the other hand, by choosing to speak in the language of law, powerful people and interests could be called to account because they tried to legitimate what they were doing in these terms. The people they took advantage of could always argue that this was a misuse of law, an illegitimate attempt at mystifying rhetoric. They could then appeal to the values that law sought to protect to promote better, juster, and more humane practices and forms of human association.

Thus, in my view CLS had-- and should have had-- an ambivalent relationship to law, seeing both its limitations in the face of social forms of power and its possibilities as a means of channeling power and preventing its worst injustices and excesses.

This gave CLS a schizophrenic quality. Some CLS scholars denounced rights talk as sterile, useless and counterproductive. Others, especially feminist and critical race theory scholars (like Pat Williams and Mari Matsuda), pointed out that rights discourse and rule of law values were among the few resources that disempowered people had. Rule of law and rights talk were potentially emancipatory discourses, that held a limited but important potential for liberation and for contesting the arbitrary and unjust use of power.

Two decades after these disputes were first aired, I think it is clear that feminists and critical race theorists had the better of this argument. They understood the deemphasized elements-- the hidden side-- of CLS claims about the relative autonomy of law. They recognized that rule of law values and rights discourse were hardly perfect-- after all, they had been used repeatedly to justify slavery and the subordination of women-- but that they simultaneously allowed people to speak out against and to restrain the worst excesses of power.

This is how I think about the lessons of CLS today. We are in a very different world from the world of the 1970s, when critical legal scholars complained that their liberal colleagues were too readily acquiescing in legal apologia for unjust institutions. Instead, the 2000 election brought a new group of government officials that believed in doing what it took to gain power and wield it, to twist law to avoid accountability and to maximize their discretion. They used a combination of fear and hatred to maintain their political position, to deny basic liberties, to justify torture and abuse, and to poison the basic institutions of government. In this blog we have tried to bear witness to many of their most egregious misdeeds.

In this world, a world of executive arrogance, authoritarian posturing, and blatant disregard for rule of law values, the second, less emphasized feature of the CLS critique necessarily must reemerge. It speaks far more relevantly to today's world. Critical scholars should go back and read what feminists and critical race theorists had to say about the limited but nevertheless important values implicit in the rule of law and rights discourse.

In this era, when we are ruled by arrogant fools who have no respect for law and no sense of their own limitations and failings, who seek to throw off even the minimal constraints on arbitrariness that law affords, those who believe in a critical approach to law must understand the importance of the rule of law and its associated values as an instrument for taming excessive and arbitrary power. The British historian E.P. Thompson famously said that the rule of law was an unqualified human good. It may not be unqualified, but there is no doubt that it is a genuine human good and an indispensable element in a humane civilization.

My views on this subject have been evolving for almost a decade now. My friends and colleagues have noticed that, on the pages of this blog and elsewhere, I have been speaking out ever more loudly and forcefully for a restoration of rule of law values in America. I do not regard this as a rejection of my critical views about law. Indeed, I regard what I have been doing as making salient what was always present in the critical approach to law-- the hidden, less developed side of critical legal theory-- a recognition of our ambivalent relationship to law as simultaneously an inevitable instrument of power and as a necessary check on power.
Posted 2:42 PM by JB [link]