Balkinization: A New Generation of Critical Legal Studies, Or A Repudiation?

A New Generation of Critical Legal Studies, Or A Repudiation?

Brian Tamanaha

Jack’s thoughtful essay on Critical Legal Theory Today—which I highly recommend—has an odd quality. It is presented as continuous with CLS of the 1970s and 1980s, updated to confront the legal challenges of the current period. But it can also be read as an argument for why folks on the political left should repudiate CLS, an argument I will draw out in this post.

As Jack points out, the CLS critique of “legal liberalism” was aimed not mainly at conservatives but at people on the left who advocated using law to achieve their political goals. The CLS argument—to simplify it drastically—was that utilizing “liberal legalism” (the rule of law, rights talk) in this manner was to make a deal with the devil. One might get a few token benefits from law, but at the cost of entrenching law’s overarching power-serving bent.

Jack suggests that the role of critical theory, then and now, is to study and expose the ambivalent quality of law. “Critical theories ask how law legitimates power in both senses of the word: how it shapes, channels and restrains power and how it mystifies, disguises, and apologizes for it.”

During the heyday of the first generation of CLS, as Jack describes, the emphasis was on the ways in which law “mystifies, disguises, and apologizes.” Hence their self-described dedication to “trashing” law and rights. CLS emphasized legal indeterminacy to show the manipulability of law, and it revealed the permeability of legal concepts like the public/private distinction. The CLS mantra: “law is politics.”

Now, however, we are confronted with an Administration that shows little regard for the law (except when it can use the law as an instrument to achieve the ends it desires), and that is aggressively seeking to stock the bench with conservative judges who will infuse the law with their conservative political views. In view of these actions, a previous post took the position that a strong argument can be made that the Bush Administration vindicates CLS.

In truth, however, the actions of the Bush Administration serve to highlight the grave error of CLS. Bush and company have reminded us of how essential law is in the effort to restrain power, and how flimsy—though also resilient—it can be in the face of determined government actors.

Despite their radical stance, the many genuinely idealistic people who participated in CLS were in one sense not radical enough. They truly believed that exposing the ways law serves power through mystification would be beneficial. Once we collectively see law for what it is, they apparently thought, the way would be open to make things better. [From here on forward, I should note, the explicit argument is more mine than Jack's, and should not be read as a close paraphrase of his essay. I don't know whether Jack agrees with what follows.]

If one takes the more coldly realistic view that powerful interests generally get their way (in the end), then the fact that law serves powerful interests is merely one manifestation of the ordinary course of things.

The key question is not whether law serves power (of course it does), but rather, are there any effective ways to temper or limit power? Other than the presence of competing sources of power serving to limit one another’s ambitions, our most effective social invention for constraining power is law. This is the side of law that “shapes, channels and restrains power,” as Jack put it.

This effect is achieved by the relative autonomy of law (which CLS confirmed). To obtain credibility with the populace, the law must regularly live up to (or appear to live up to) its claims to be just and to apply to the powerful and weak alike, and this is how law comes to restrain power, even as it also serves power. Moreover, over generations, owing to the effect of legal ideals, people (including government officials) come to genuinely believe in the law, and this belief has a constraining effect on actions.

The process by which law works is almost magical: belief in and commitment to law and to legal ideals creates a reality in which law matters.

In situations where people are pervasively cynical about the law, this magical effect does not work. Law and legal interpretation, then, are manipulated (exploiting the indeterminacy of law) without restraint to do whatever one wants with a legal imprimatur; like, for example, coming up with a twisted legal interpretation of “torture” that purports to exclude waterboarding

If this argument is correct, then the total delegitimation of liberal legalism, which CLS sought to do, threatens to emasculate the good that law has to offer by spreading cynicism about law.

Moreover, CLSers who argued that the rule of law is a fraud now have a difficult time criticizing the Bush Administration for its blatant disregard of the rule of law. After all, if you don’t believe in the rule of law, or if you believe that supporting the rule of law tightens the chains that secure an unjust social order, then it’s hard to come to the defense of the rule of law in times like this.

Jack’s essay on Critical Legal Theory is gently critical of CLS, but I am inclined to think that the correct course for those on the political left—as sympathetic as we might be to the politics of the CLS movement—is to come out more strongly and say forthrightly that CLS was fundamentally wrong in its thrust and tactics [with apologies, affection, and respect to my friends in CLS].

Law is essential for the reasons stated above—for the reasons elaborated on by Marxist historian E.P. Thompson (who Jack mentions at the close of his essay)—so any attack from the political left that aims to completely undermine the law is ultimately detrimental to the goals and causes the left hopes to advance.

The choice of the left must be to stand up and defend the integrity of law.

This does not mean that one should not expose the ways in which rhetoric about the neutrality of the law conceals a particular bent and bias. My recent essay, “The ‘Dark Side’ of the Relationship Between the Rule of Law and Liberalism,” discusses a long historical pattern (continuing to the present) in which liberal theorists have strategically invoked the rule of law against democracy.

That sounds like classic CLS stuff, but there is a fundamental difference in orientation. I styled and presented the essay not to show that the rule of law has been utilized in untoward ways (which is certainly the case), but rather to defend the rule of law against opportunistic abuse.

The rule of law is an essential political ideal. When confronted with bad things accomplished in the name of the law, the best response is not to undermine law as a fraud. The best response is to demonstrate that these offensive applications betray the ideals about right and justice that law espouses and claims to represent.

This is a time honored (agonizingly slow) way of advancing the state of the law. And it’s the best we have.

Posted 4:48 PM by Brian Tamanaha [link]

Comments:

"The choice of the left must be to stand up and defend the law and the integrity of law."

The left can not defend the law and the integrity of the law. 70 plus years of illegitimate constitutional 'change' the left treasures rests precisely on abandoning the law, and it's integrity. Embrace the law, and it's integrity, and you have to abandon the 'living' Constitution, in favor of the written one, the one that doesn't authorize the regulatory leviathan.

# posted by

Brett : 7:36 PM

What is also interesting - and I agree with your point that at least "pejorative" critical legal theory needs to be roundly criticized - is that CLSers seemed to have been completely unaware of the soon-to-be powerful New Right legal movement that was gaining steam at precisely the point that when they decided to "trash" rights-based liberalism (and this is a question ???)

IOW, did the CLSers believe that the game was so tilted in their favor that they didn't need to worry about the conservative vision -- law is (right-wing) politics -- that was emerging ???

# posted by

Calvin TerBeek : 9:33 PM

Calvin

Your observation is an astute one. If you read Jack's essay, the timing is off in just the way you suggest.

It's a bit hard to figure out, in hindsight, why this seemed like a smart move from a political standpoint, given the evident resurgence of conservatism, at least since the early 1980s.

I can only surmise that a part of the explanation is frustration, disappointment, and lashing out, at what they must have seen as the disappointed promise of the Warren Court.

But I don't know.

Brian

# posted by

Brian Tamanaha : 11:38 PM

Professor Tamanaha:

"The choice of the left must be to stand up and defend the law and the integrity of law."

I can only surmise that a part of the explanation is frustration, disappointment, and lashing out, at what they must have seen as the disappointed promise of the Warren Court.

There is more than a touch of reactionary hypocrisy here.

So long as the institutions of law - the courts, the bureaucratic quasi courts and Congress - were securely in liberal hands, the left never gave a second thought to ignoring the checks of our Constitution and democratic branches. After all, our Constitution was a "living document" which could be changed at will by each succeeding generation.

However, now that a new generation has arrived and these institutions are in conservative hands or contested and the extra-legal acts of the old liberal courts and congresses are in danger of being reversed, the left now calls for respecting the integrity of the law. However, the law to which the left refers is not the Constitution. Rather, it is the old liberal rewritings of the Constitution.

# posted by

Bart DePalma : 9:44 AM

Bart,

It's understandable that you see some hypocrisy in the situation (though "reactionary" does not fit). If the courts were stocked with liberal judges, you are likely correct that people on the left would not be raising the same objections.

It's also important to note, however, that important left-leaning law professors expressed discomfort (or flat disagreement) at the time with the legal basis for some of the Warren and Burger Court decisions. Indeed, CLS in part was reacting to this left opposition. So your overall charge of left hypocrisy is over-drawn.

Just as important, remember the hypocrisy of conservatives. They wanted strict construction and attacked judicial activism when they saw the courts as dominated by liberals. But now there are increasing calls from conservative quarters for judicial activism.

It's for this reason that we (left and right) are all better off insisting that judges should strive to apply the law as best they can, and leave politics to the political realm (understanding that there can never be a complete separation between the two).

Too much cynicism about law on both sides will leave us all losers.

Brian

# posted by

Brian Tamanaha : 10:12 AM

Brian,

Where (presuming it) does "cause lawyering" (Austin Sarat, et al.) fit into these narratives? Is it an unintentional by-product or spillover effect of the theoretical and practical shortcomings of CLS, or perhaps a deliberate attempt to salvage the Leftist spirit of CLS, or...?

# posted by

Patrick S. O'Donnell : 10:32 AM

Patrick,

Cause lawyering, in my view, has an independent heritage that goes back to the ACLU early in the century, and later the Legal Defense Fund, with many imitators thereafter. It worked, and that was all the encouragement it needed.

Whether it had any concrete connections with CLS, I don't know. I tend to believe that the causal impact of theory on action is often exaggerated. And in this case I would say there was probably no close connection; if if anything there was a bit of tension, because cause lawyers were drawing upon the resources of legal liberalism.

Brian

# posted by

Brian Tamanaha : 10:43 AM

I agree completely that a fundamental flaw in much (not all) of CLS was not understanding power relationships -- the "who rides whom" question. This was a general problem with the wave of post-moderism and post-structuralism that swept over much of the humanities and some social sciences in the 1980s and 1990s.

There was also a whiff of self-importance by the professariat. Articles deconstructing this or that were themselves radical agents of change, because (it was essentially argued), puncturing the existing order in any spot was sufficient to deflate the whole balloon.

Some of the comments on this thread miss the point that CLS was meant as a critique of "liberal" jurisprudence at least as much as anything else (including but not limited to "rights talk").

Finally, yeah, the exchange between M. Horwitz and E.P. Thompson re Whigs and Hunters is essential to understanding all this.

# posted by

Unknown : 11:42 AM

As perhaps a footnote, the CLS "deconstruction of law" was always philosophically naive. Its vaguely postmodernist stance on rules was silly and drove me to distraction back in the early 1980's. Then my job, on a law review, was to reject or edit submissions from one CLSer after another.

Invariably the articles misunderstood the gist of underdetermination (a fact of life, even of science) and of Wittgenstein's remarks on following rules. Each leaves rules of inquiry and everyday life fully in place.

Intellectual purity aside, the papers were nonsense from a common sense standpoint. Taken at face value, they were arguments against traffic law as much as against commercial and constitutional law. Moreover their residual point, that political power affects how laws are promulgated and construed, had a kernel of truth that was a whole lot less profound than the authors claimed. And given that the authors had lost track of the point and purpose of legal rules, that political critique was only haphazardly illuminating. For the most part it was hamstrung by all the overstatement.

Not to take her side, but what Hillary Clinton said about LBJ and Martin Luther King is a corollary to the point Jack Balkin makes in his paper. A civil rights lawyer makes sure to go to court with a statute in hand. A King speech may be included, but it's no basis for relief.

# posted by

Occasional Observer : 1:45 PM

Yes, the rule of law is an essential political ideal, even for the extreme far left. On this point, I would recommend Christine Sypnowich's book "The Concept of Socialist Law," which shows how the law and legal institutions would be essential for a socialist state. At the same time, we must avoid fetishizing the rule of law. First of all, there is the problem of bad coherence, when the entire system or a section of it is rotten to the core. Second, the 'rule of law' glosses over the underlying contradictions in legal doctrines by implying that there is a single rule that applies in most cases when in fact most cases are won by extra-legal factors such as status or ability to pay. Finally, the rule of law is not as great as it sounds in a society like ours where wealth and power are so unequally distributed that most people have no effective access to the court system, and no power once they get to court. And most of the systemic bias in our system is mediated by the law, which means that the rule of law, in practice, simply legitimates inequality by lending it a kind of otherworldly justification. So you are right that the CLS attack on the rule of law was muddled and self-contradictory. They were unduly nihilistic, but sometimes a dose of that is useful.

# posted by

Litowitz : 4:08 PM

"The choice of the left must be to stand up and defend the integrity of law."

As a newly-minted plaintiffs' employment lawyer, this statement truly mystifies me. Why wouldn't the left chose to stand up and assert its own power through the law? CLS is exactly right: law is political, and that's why we have to use our political power to create and enforce the law the way we want it to be done. The other side knows this, and we'll lose if we don't meet them on the same playing field.

# posted by

susana : 5:00 PM

@Foot: Yours is the first comment that really resonates for me. I never got that CLS proposed anarchy, on the contrary, it was, I thought, supposed to serve justice by building political savvy and will to create and enforce laws justly rather than as an adjunct to the power already held by the privileged classes.

I confess, I haven't treated myself to the text of our host's essay yet.

# posted by

Robert Link : 6:04 PM

"I thought, supposed to serve justice by building political savvy and will to create and enforce laws justly rather than as an adjunct to the power already held by the privileged classes."

Well, do something 'justly', while tearing away at the reasons anybody who doesn't share your precise conception of justice might have to go along with what you're doing. It's so amusing watching people who don't give a bucket of warm spit about the law, and who are willing to say so, demand that others obey it.

# posted by

Brett : 7:25 AM

To be a bit more charitable to the CLS folks, I don't think their point was "we should reject notions about 'the rule of law' because it's a bad thing and substitute pure politics, because that's a good thing"; the argument was more that "the 'rule of law' necessarily can't exist (because language, categories, and other necessary compenents of the rule of law are inherently indeterminate and/or incoherent), so it would be best if we just all realized law is merely politics."

One might disagree with that (stated as broadly as the CLSers often stated it, I did). But the CLS critique of the legal process/neutral principles school was more that it *couldn't* be done (and thus we shouldn't pretend) rather than it *shouldn't* be done.

# posted by

Unknown : 11:47 AM

Brett: It's so amusing watching people who don't give a bucket of warm spit about the law, and who are willing to say so, demand that others obey it.

Agreed. That's why W is such a funny clown.

# posted by

Robert Link : 11:53 AM

Point of distinction: CLS isn't based in the liberal left. Its a reaction to and critique of liberalism. CLS is employs the old marxist paradigm and asks "what are the tools of the modes of production and how do i place them in the hands of the worker?" So to use the broad brush and say "the left cannot defend the law" is like saying "the right can't defend freedom." There is a vast gap, perhaps much greater than the divide between left and right, between liberalism and radicalism. if there's a message from the article, its See What Radicalism Gets You? (like the radicalism on the right) "Evolving standards of human decency" and Power To The People are not the same rallying cries.

# posted by

tex clark : 3:43 AM

CLS was indeed a reaction against liberalism, a form of radicalism, but it wasn't really Marxist, indeed it was often fairly consciously anti-Marxist. Why worry about class struggle when writing radical law review articles was (in the view of some) pretty much equally destabilizing to the existing order?

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# posted by

Unknown : 9:48 PM