On Critical Legal Studies

...Thus, we cannot refer to the conflict between capital and labor, feudal lords and serfs, or husbands and wives, without recognizing that all of these terms are embedded within legal understandings...

...And few have exhibited great interest in traditional local politics...

...like Thorstein Veblen, Arnold delighted in ridiculing the rituals and pretensions of the law...

...Contemporary "crits" would, I think properly, disdain such a description when applied to conservative judges, just as they would reject the New Right description of Justice Brennan as consciously disregarding what he knows to be the "genuine" commands of the Constitution in favor of his own political agenda...

...They construct roles for us like 'Owner' and 'Employee,' and tell us how to behave in the roles...

...Like other contemporary social theorists, including Jacques Derrida, Clifford Geertz, Richard Rorty, or Michael Walzer, most CLS writers reject any privileged perception of "reality...

...Indeed, many, most notably Duncan Kennedy of Harvard, have specifically emphasized the importance of "local" politics, for example, that of the law school itself or of the law firm, and much of the interest in the Harvard Law School has been generated precisely by what is perceived to be the intense political struggle taking place between CLS and its opponents over the future shape of the institution...

...Arnold, bored by the work of the District of Columbia Court of Appeals, resigned to join what later became the important Washington law firm Arnold, Fortas, and Porter...

...This constitutes a major difference from the behavior of the Realists mentioned earlier...

...If law fits neither of these "traditional" descriptions, then what does law do to make it worthy of the intense study that CLS members in fact give it...

...Notwithstanding these relatively mild criticisms, CLS has been an extraordinarily valuable contributor to the legal academy, raising fundamental questions and calling into necessary doubt some of the more complacent pictures of the law...

...Most CLS adherents stand firmly in the camp of those who reject "foundational" political or social theory...

...That is, many earlier Realists emphasized the linkage between legal outcomes and the interests of the rich and powerful within society...

...Much of their animus to conventional jurisprudence was generated by opposition to the Supreme Court's reading of the Constitution as barring various efforts at reform...

...By no means do all CLS writers reject this view: Morton Horwitz, one of the founding members of CLS, won the Bancroft Prize in 1977 for The Transformation of American Law, which argued that American legal developments in the early nineteenth century can best be explained in terms of the needs of a dynamic capitalism...

...One difference between contemporary critics and Realists is that the former take ideology extremely seriously and try to show how it is that judges feel compelled to reach certain decisions because they are caught within the web of a given legal consciousness that makes certain results appear "obvious...

...Guyora Binder presents an important discussion of this aspect of CLS in "Beyond Criticism," 55 University of Chicago Law Review 888 (1988...

...It is pointless (and misleading) to accuse Lochner-era judges of consciously inserting a property-protective theory into a Constitution that they "knew" did not contain such a theory...

...I would, unlike many of my colleagues, be delighted if CLS became the dominant voice within American legal education...

...318-432...

...Still, this emphasis on "local" politics represents a withdrawal from more traditional political stages, and it means, among other things, that most of the leading CLS writers have little or no experience playing lawyer's roles...

...We will never know if a Dukakis administration would have dared to offer appointments to CLS analogues of brilliant conservatives like Richard Posner, Frank Easterbrook, and Antonin Scalia, who were plucked 364 • DISSENT Political Theory by the Reagan administration from the University of Chicago Law School to serve as federal appellate judges...

...and "On Critical Legal Studies as Guerrilla Warfare," 76 Georgetown Law Journal 1 (1987...

...Instead one emphasizes the extent to which the very picture we have of "society" is imbued with legal referents...

...Much more extensive, but less accessible without prior knowledge of the debates, is A Guide to Critical Legal Studies (Harvard, 1987), by Mark Kelman, also at Stanford...

...Like these writers as well, CLS "crits" have been accused by their detractors of being relativists whose own often eloquent appeals for justice are at bottom arbitrary...

...The onslaught of criticism directed at the court by southern whites following Brown made it seem especially tasteless to recall the Realist attacks on jurisprudential pretense...

...The "private," that is, was inevitably defined by the "public" world of law, and it made no sense to see them as separate realms...

...Rejecting Realism, these latter-day liberals presented the court as engaging only in impersonal enforcement of the law...

...The post—Roosevelt era, on the other hand, featured a jurisprudence that at once counseled deference to legislative decisions in regard to economic regulation and justified aggressive protection of so-called "preferred freedoms" linked to the First Amendment...

...Dalton, already an assistant professor, was supported by a majority of her colleagues, but did not receive the two-thirds approval required by the law school...

...Such order as exists is the result either of political compromise among socially significant groups or successful domination of one group by another...

...Jerome Frank is probably the most notorious of the later Realists, especially because of Law and the Modern Mind, in which he argued that the belief in the possibility of legal certainty was symptomatic of infantile longings for an omniscient father...

...Indeed, some leftists criticize CLS for having rejected materialism and embracing "idealism" in its stead...

...One no longer refers to law as superstructural, which entails a claim that one can grasp the "true" underlying structure...

...In The Common Law Holmes argued what has since become a commonplace, that the life of the law is "experience" and not "logic...

...The various attempts to submerge Realism did not survive the social and political cleavages of the 1960s, at least for those who later founded CLS...

...Edward Purcell notes in his important book The Crisis in Democratic Theory that the coming of World War II substantially brought the Realist critique of law to a halt...

...nonetheless, (2) any given judge will construct a theory of the law that leads to his or her feeling that a particular decision is indeed compelled...

...CLS writers generally are stronger on criticism than on the presentation of preferred alternatives...

...Some capitalists need rule stability just as others, more at the cutting edge of new developments, need courts willing to overrule now stifling precedents...

...Trubek, visiting Harvard from Wisconsin, did receive such a vote, but was then rejected for tenure by President Derek Bok, an ex-dean of the law school...

...Most CLS members are on "the left" in terms of political sympathies...

...6 One must take note as well of the Republican domination of the presidency over the past twenty years...

...In both cases, "crit" theorists would argue that although (1) there is no unique set of "genuine" commands, i.e., the Constitution can be made to mean practically anything...

...6 Many would view MacKinnon as a CLS adherent, so I am perhaps setting up a false opposition in this paragraph...

...q Notes ' I offer a full analysis of Carrington's argument in chapter five of my book Constitutional Faith (Princeton University Press: Princeton, 1988...

...This part of the project is clearly linked to European "critical theory...

...Finally, mention should be made of Essays on Critical Legal Studies, made up of articles originally published in the Harvard Law Review...

...Judges do not submit themselves to the "commands" of the law...

...At its root, law is congealed social power...

...5 See Roberto Unger, "The Critical Legal Studies Movement," reprinted in Essays on Critical Legal Studies, pp...

...The aim of the CLS analyst is to show that nothing in our polity is "inevitable" or "natural...

...As we shall see, this career pattern differs from that of contemporary "crits...

...Very few of the CLS academics engage in any traditional lawyering tasks, whether reformoriented litigation, preparation of legislative statutes, or the like...

...Law and justice may sometimes overlap or even coincide, but history is full of examples, including that of American slavery, where they patently did not...

...Legal structures may make marginal contributions to the maintenance of order, but one should not overestimate the extent of this contribution...

...Law and the Progressive Vision In 1954 Brown v. Board of Education seemed to demonstrate further that law could be linked to a progressive social vision and become an instrument for achieving a just society...

...Perhaps the best-known aspect of the Realist argument concerned the strength of legal doctrine as a genuine constraint on decision making...

...Another major thread of the Realist critique, found in the writings of Morris R. Cohen and Robert Hale, among others, involved the claim of traditional jurisprudence that a regime of "private" rights was prior to, and protected by, the legal order...

...4 The most notable exception, ironically, is perhaps the most relentlessly theoretical writer within CLS, Roberto Unger, who took a leave from the Harvard Law School to return to his native Brazil and work in a governmental agency...

...The person cast as 'Employee' is subordinate...

...2 There are several such introductions...

...3 See my own piece in the summer 1988 issue of Dissent, "Clashes of Taste in Constitutional Interpretation," pp...

...And, indeed, the ghost of Nietzsche haunts a lot of the contemporary debate, as many "crits" emphasize the "genealogy" of law and describe a sometimes raw struggle to establish dominance over the relevant organs of interpretation, including the courts, while their opponents emphasize the presence of canons of interpretation that genuinely discipline and constrain legal interpreters...

...T some extent CLS must be understood as the latest manifestation of America's most distinctive contribution to legal philosophy, "legal realism," which in turn was part of what Morton White termed "the revolt against formalism...

...SUMMER • 1989 • 365...

...Moreover, it is significant that most of the Realists were liberal or progressive, rather than radical, in their politics...

...One just cannot tell what is "functional...

...Both Frank and Douglas spent decades on the bench...

...Although few realists were particularly influenced by Marx, there was a shared view that law was basically superstructural, resting on a deeper social or economic base...

...Iniquitous societies have recognizable legal systems...

...What follows is too short to provide a full-scale introduction to what is now a significant body of literature, much of it devoted to debates within CLS about what constitutes a critical perspective...

...However, a competing tendency in CLS today is well described by Mark Kelman in A Guide to Critical Legal Studies, where he focuses on the CLS critique of functionalism — "the claim that one could both understand what social needs exist and predict certain necessary legal responses to them...

...This "public-private" distinction was subjected to withering analysis, as these writers argued that the very notion of private property, for example, was the product of existing legal arrangements...

...It is hard to imagine the careers of Frank, Arnold, and Douglas without Roosevelt's capture of the presidency...

...Gordon is fairly typical in rejecting both these views and emphasizing instead that liberation lies in recognizing the extent to which legal understandings are radically contingent and thus open to fundamental change...

...Some writers, such as Mark Tushnet of Georgetown, have referred to this as the "blueprint" problem and have, like most Marxists, refused to offer such blueprints on the grounds that one can't really know how a radically transformed society would operate...

...The founding generation of CLS, now in their late forties, have had little opportunity to engage in traditional public service or, certainly, to serve on the federal bench...

...The notion of the "rule of law" (as against the "rule of men") was transformed from an illusion to be attacked into a crucial sign of the difference between American society and its fascist (or communist) antagonists...

...Since then "crits" have become one of the most important—and controversial—groups within the legal academy...

...Realists attacked the intellectual pretensions of those who claimed to "deduce" legal conclusions from master first premises through some kind of quasi-"scientific" process called "thinking like a lawyer...

...Much energy was expended trying to demonstrate that one or another legal development could best be explained because it reflected the interests or demands of, say, capitalists, bankers, or merchants...

...Yet both Frank and Arnold engaged in important service in the New Deal administration of President Roosevelt, and both accepted appointment to the federal judiciary, as did William 0. Douglas, another Realist...

...2 My partial view focuses on what I find most challenging, intellectually and politically, in the positions associated with CLS...

...These were not the only insights of Realism...

...One might think that persons engaged in such a radical attack on traditional legal theory would withdraw from the world of law altogether, or at least become "outside" analysts, such as legal sociologists or anthropologists, rather than remain "inside" the legal profession...

...It is a voice that deserves to be well represented in any contemporary discussion about the meaning and impact of law...

...Gordon answers that law (or perhaps what we might term "law-talk") serves as "a plastic medium of discourse that subtly conditions how we experience social life...

...Legal categories "filter our experience...

...A major source of controversy involves the first claim, which some opponents of CLS, including political liberals like Yale professor Owen Fiss, view as leading to a basically "nihilist" notion of law...

...As to the first, most CLS adherents do not believe that "the law" is sufficiently determinate in its application to genuine social controversies as to provide the basis for any statements of the type "the law of contract is functional to X." Moreover, even if the law had a more determinate content than suggested, it would still be impossible, according to Kelman, "to match up prevailing" law "with particular social conditions...

...That is, existing legal structures are justified often by reference to ideals like undominated equality...

...Law-talk is "among the discourses that help us to make sense of the world," according to Gordon, "that fabricate what we interpret as its reality...

...One of the best, "Law and Ideology," by Stanford law professor Robert Gordon, appeared in the January/February 1988 Tikkun...

...Frank's colleague in Realism, Thurman Arnold, wrote similarly savage attacks from a more anthropological perspective...

...Why Dissect the Law...

...Many legal academics (including myself) signed a letter suggesting that these rejections were politically motivated, sending a message to legal academics that association with CLS would be decidedly dangerous to one's professional health...

...That revolt was spearheaded by philosophers such as William James, Charles Pierce, and John Dewey...

...As to justice, any relationship between law and an admirable polity is entirely contingent...

...We should, said Frank, grow up (as did his hero Holmes) and accept that certainty is a delusion...

...Law-talk was equivalent, in all important respects, to the mumbo-jumbo of witch doctors and had as little to do with grasping the shape of the social world...

...362 • DISSENT Political Theory What is perhaps most surprising about the analyses of law presented by some leading "crits" is the explicit rejection of the earlier functionalist arguments that typified Realist approaches...

...Instead, liberal legal academics devoted much of their energy to criticizing those who viewed Brown as a decision by judges willing to use their power in behalf of a specific political agenda...

...It just is that way, part of the role...

...3) Finally, "legal discourses have the legitimating power they do because they sketch pictures of widely shared, wishful, inchoate visions of an ideal...

...Among other things, Realism dethrones law as the basis of social order and the provider of social justice...

...Should those outside the legal academy care about it...

...Although many of the people most interested in the so-called "indeterminacy of interpretation," including myself, draw their evidence from contemporary literary theory and hermeneutics, there is a clear linkage between this wing of critical legal studies and the earlier attack of the Realists...

...Just as important, though, was their attack on the purported political neutrality of legal thinking by which "law" (and legal thinking) was sharply differentiated from "politics" (and political judgment...

...Thus, with few exceptions, they tend to be critical of John Rawls, who is viewed as trying to provide just such a foundation for political judgment through the use of abstract reason alone...

...As many critics of Marxist functionalism have pointed out, capitalists themselves are often highly divided in their particular interests, so that any decision can be shown to be "functional" for some and "dysfunctional" for others...

...The most salient example was the 1905 Lochner decision, in which the majority of the Court invalidated a New York law limiting the SUMMER • 1989 • 361 Pallthal Inman work week of bakers to sixty hours...

...such justice as exists is wholly dependent on the justice of those with power...

...Hence, their students are rarely provided with visible role models for political activity...

...According to Holmes, the "felt necessities of the time" explained the development of the law, and these necessities most certainly included the desires of politically dominant groups, whose power included the ability to place on the judiciary men (which in this case does not mean "men and women") generally sympathetic to their worldview and standing at 360 • DISSENT Political Theory the top of the hierarchical structure...

...What is this fuss about...

...In any event, as Robert Gordon writes, "For the Crits, law is inherently neither a ruling-class game plan nor a repository of noble if perverted principles [as liberals might argue...

...It should be obvious, though, that their analyses differ from traditional Marxist approaches, which are both functional and determinist...

...Many of us would argue that it is the reader-interpreter who creates the meaning of a legal text rather than the text that independently forces any given meaning upon the interpreter...

...Some minority and feminist professors, who regard CLS as basically white male in orientation, have criticized this relative disengagement and offered their own models of political action—ranging from rather traditional reform litigation to Catharine MacKinnon's nationwide efforts to pass extremely controversial local ordinances regulating sexually explicit, even if not legally "obscene," material that she believes to be harmful to women...

...5 But he has few American analogues...

...To some extent, "crits" adopt traditional critiques of functionalism, focusing on "(1) indeterminacy of legal response, (2) social conflict over the appropriate legal agenda, and (3) legal system autonomy...

...Central to American law, though, was Oliver Wendell Holmes, the key figure behind the entire "realist" movement...

...I should also point out that I am a dues-paying member of CLS, though I would rightly be regarded more as a somewhat critical sympathizer than a core member...

...From a more scholarly vantage point, Paul Carrington, formerly dean of Duke University Law School, suggested in a 1984 article that there was something questionable about their teaching in law school, though he had no objection to their teaching elsewhere in the university, in departments of political science or sociology...

...An important anomaly emerges, though, if one studies the careers of Frank and Arnold, or, indeed, many of the other important Realists of the twenties and thirties...

...Several members of CLS self-consciously identify with "deconstructionist" approaches to literature, so it should be no surprise that the debate within the legal academy often replicates the sometimes savage fights seen in university departments of English or comparative literature...

...One should not seriously expect law to tame the powerful...

...Indeed, I have been tempted on occasion to view some CLS writers as the latest development of American transcendentalism, responding to its invitation to cast off the excrescences of traditional thought...

...Both involve relentless attacks on any notion of "certainty" in the law and emphasize instead the "open-textured" nature of legal language...

...And the "revisionary" discourse favored by CLS adherents can at least some of the time build on ideals located within traditional legal discourse, even if their more radical implications are repressed in ordinary legal consciousness...

...Ironically, though, most contemporary proponents of the indeterminacy thesis do not share the Realists' view that judges were consciously "choosing" interpretations in line with their political views...

...Any particular SUMMER • 1989 • 363 Political Theory aspect could be radically different from what it is...

...This contingency is captured philosophically in Holmes's insistence on the analytical separation of law and morality: It was no part of the definition of law that it be just...

...One of the arguments most common among the "crits" is that this notion of "impersonality" is untenable...

...Nonetheless, no one familiar with the history of CLS can ignore the tensions that exist between the views of many of the male founders of CLS and those held by feminists sympathetic to its initial aims...

...Gordon goes on to offer three basic points as typical of CLS analysis: (1) "Legal discourses . . . tend to reflect the interests and the perspectives of the powerful people who make most use of them...

...Law professors should "believe" in law, he argued, whereas most adherents of CLS are distinctly agnostic, if not atheistic, in this regard.' Moreover, intense controversy surrounded Harvard's denial of tenure to two CLSidentified professors, Clare Dalton and David Trubek...

...It is not that "crits" are apolitical...

...2) These discourses, whether proferred by the powerful or the powerless, "are saturated with categories and images that for the most part rationalize and justify in myriad subtle ways the existing social order as natural, necessary, and just...

...301-312...

...Holmes wrote one of the most important dissents in American history denouncing this setting aside of legislative will...

...The editorial page of the Wall Street Journal regularly denounces them as exemplars of the left-wing mentality allegedly pervading leading law schools...