Balkinization  

Thursday, May 03, 2007

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.

Comments:

Jack--

The endemic disease of legal reasoning back to before Edward Coke is to make false claims about the past in the hope that they will be true about the future.

When you right that "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" you are, I think, falling victim to this disease.

I sat in Harvard's Economics Department in the 1980s, looking north at Duncan Kennedy, Roberto Unger, and company. I heard lots of: powerful people use 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, and it is our duty to demystify the authority of law and unveil that it is all naked politics. I heard very little of: by choosing to speak in the language of law, powerful people and interests can be called to account by being accused of committing injustice.

Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.
 

Professor,

I might not be your most valued contributor, but at the moment I think I can reasonably vie for title of "biggest fan." Thanks for an exciting post.
 

brad: Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.

I think less "judo-move" and more "got lemons, make lemonade", particularly in an environment where a sated consumer class could never be looked to for a real people's revolution. I think I could get my undergrad prof from Cal State Dominguez Hills to sign off on this summary, the one who introduced me formally to cls in the early 90s. But there's no getting around that cls in the context of a Harvard econ department is bound to vary from that found in the home of gangsta rap. $.02

(For the record, I'm one of those sated consumers, here with my linux computer and verizon dsl, I know. I never put much stock in a "people's revolution" and am on record as saying Marx is the kind of thinker who would divide by zero.)

Peace.
 

Professor Balkin,

May I offer a humble perspective from a law student, who is quite persuaded by your characterization and defense of the lemons-into-lemonade version of CLS?

I think my response and the response of a good number of similarly situated law students would be: "CLS had enduring lessons?! Really?! Why weren't we told?" I and my ilk have been "awake" to the law for only five years or so. Even those among us with more than a passing interest in various theories of judicial review know of CLS as a mere footnote. I learned much more from my undergraduate economics professor about CLS than I ever will in law school. The first institutional exposure I had to the idea was on a practice LSAT, which used CLS as the topic of a reading comprehension exercise. (I wish I were making that last part up.)

Okay, so CLS is presented to most young minds as a footnote, so what? Well, all we know about it is that it's a widely discredited approach to the law that basically takes whatever interpretation of an outcome is simultaneously the most cynical and left-wing. Maybe some students would be attracted to learning more based on such a description, but I suspect few would follow up on a theory that is both "discredited" and "cynical."

Reams of submissions pour into law reviews, few if any give CLS serious treatment. No one is teaching it. (I think I read Matsuda in a law and sexuality seminar . . . that would be the extent of my CLS exposure since the LSAT encounter mentioned above). Are there students out there interested in the lemony lessons from CLS and all the hard work on behalf of scholars like yourselves in reading and understanding the movement? How will we ever know if someone doesn't teach us about it? Professor Tamanaha has shown that current events amount to a big batch of ripe lemons--if not now, when?

I suspect there are good reasons why the topic is not touched on in mainstream legal education. I just don't know what those reasons are.

~UCLA 2L
 

Jack,

This is a nice apotheosis, but I think your co-blogger Kim (at least, I assume she's a co-blogger though I don't see her post; she's listed up there) really beat you to the punch on this one a while ago. :)

Could we get her here to comment on this?
 

A is referring to Kim's article, When the Law Doesn't Count: The 2000 Election and the Failure of the Rule of Law, 149 U. Pa. L. Rev. 1361 (2001). If you are interested in an contemporaneous discussion of CLS and Bush v. Gore, you might also look at my own article, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L. J. 1407 (2001).
 

@Kevin: I know at least one undergrad pre-law program that still keeps the cls/fls light burning, but it's certainly not mainstream, it's Cal State Dominguez Hills, Professor Jeanne Curran. As to why "mainstream" doesn't teach it, or how it comes to be "discredited", well, what's the upside for the elite to give it voice? We do see, in Brad's comment, that cls was taught in the 80s in Harvard, but generally I expect cls/fls to appeal more to the National Lawyers Guild than to the Federalist Society, and I think we know which camp currently holds greater sway in the ABA and curriculum policies of the tier one schools. As for the good reasons you seek, tier one schools are primarily about joining/maintaining the power elite and getting well compensated therefor; cls is of little to no value for such pursuits.

@all: I've indulged myself here far too much this week, and will be reverting to lurker status. Am always happy to hear from folks via private email, which can be found at my blogger profile page.

Peace, and out.
 

Brad: Perhaps CLS should have been a judo-move, stating that the powerful developed law as a mystifying cloak but we can make it more. But I have no sense that that was what it was.

The history of CLS isn't something I spend a lot of time with, but two works from the CLS-era come to mind along those lines: E.P. Thompson's appendix to Whigs & Hunters (the rule of law as an unqualified good) and Mari Matsuda's Looking to the Bottom. The former spoke of ways that law might confine the powerful and the later suggested some ways that traditional legal doctrine might be remade to benefit the most in need.
 

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