|legal theory: critical theory|
Critical Legal History[*]
An important expression and legacy of the Critical Legal Studies Movement is a series of provocative studies of the histories of particular legal doctrines. The seminal works in this vein were two essays by Duncan Kennedy: a monumental, largely unpublished manuscript entitled, "The Rise and Fall of Classical Legal Thought," and a loosely related 1979 article entitled, "The Structure of Blackstone’s Commentaries." Kennedy described the method underlying these studies as "Structuralist or phenomenological, or neo-Marxist, or all three together." Its central premise was that a principal purpose of legal thought is "to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world" -- in other words, to disguise or "mediate" a "fundamental contradiction" that afflicts American culture as a whole and taints the lives of all of its members. Kennedy described that contradiction as follows:
Most participants in American legal culture believe that the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it. Others (family, friends, bureaucrats, cultural figures, the state) are necessary if we are to become persons at all. . . . But at the same time that it forms and protects us, the universe of others . . . threatens us with annihilation and urges upon us forms of fusion that are quite plainly bad rather than good. . . . The kicker is that the abolition of these illegitimate structures, the fashioning of an unalienated collective existence, appears to imply such a massive increase of collective control over our lives that it would defeat its purpose.
The systems developed by Blackstone for classifying and analyzing legal rules, Kennedy argued, functioned effectively to reduce the salience of this contradiction for eighteenth-century Englishmen and Americans. Subsequent generations of legal thinkers criticized some of Blackstone’s strategies, while preserving and generalizing others. The net effect, over the course of a century and a half, was the abstraction and refinement of a distinctly "liberal" style of legal thought -- so called because it posits subdivision of the social universe into two radically opposed spheres: "One of these is `civil society,’ a realm of free interaction between private individuals who are unthreatening to one another because the other entity, `the state,’ forces them to respect one another’s rights." Once perfected, however, this liberal style was short lived; in the early twentieth century, it succumbed to the same process of corrosive criticism that had earlier purified it and cleared the landscape of its rivals.
In the unpublished manuscript, Kennedy used this grand recit to make sense of the histories of several doctrinal fields, including constitutional law, the law of federalism, contracts, and torts. In the 1980s, an important cohort of younger historians applied his interpretive method to yet other fields. The essays of this group by no means merely replicated Kennedy’s argument; each was in many respects original. But the central themes of Kennedy’s approach -- the ubiquity of deep conflicts in Western culture and liberal theory; the presumption that systems of legal argument and thought are shaped largely by the need to mediate those conflicts; and the tendency of those systems to break down over time -- can be found in all.
Gregory Alexander, for example, argued that the law of trusts in Anglo-American culture has long been afflicted with a fundamental contradiction: it is impossible simultaneously to protect fully both a testator’s freedom to control the uses of his or her property after his or her death and the freedom of the donees of that property to use and dispose of it as they will. Nineteenth-century American lawyers, obsessed with freeing property from feudal restraints on alienation, developed various doctrines to obscure this contradiction, including the idea of "repugnancy" (the principle that restraints are void when incompatible with the "nature" of the estate on which they are imposed) and the separation of law and equity. At the end of the century, Alexander contended, the efforts of legal scholars to rationalize the law of trusts -- and, in particular, to deal with the problem of spendthrift trusts -- resulted in the discrediting of these mediating devices. The next generation of lawyers sought once again to mask the underlying contradiction (invoking, for example, balancing tests and the criterion of economic efficiency), but those devices will likely prove no more durable.
Elizabeth Mensch’s study of the development of property law in colonial New York is in the same vein. Two opposed conceptions of property rights, she argued, clashed in colonial lawsuits and popular discourse: "voluntarism" (in which entitlements derived from use and occupancy or from distributions of land from the towns) and "hierarchy" (in which entitlements derived from the King and were shielded by principles of security). Lawyers struggled to find doctrines that would mitigate the tension between these principles. Successful for a time, those devices collapsed during the period of the American revolution.
In 1984, Duncan Kennedy, the originator of this mode of analysis, renounced one of its central features. In a published conversation with Peter Gabel, he insisted that his original conception of the "fundamental contradiction" had outlived its usefulness -- that it had become a "lifeless slogan" and (more seriously) that it had been seized upon by liberal and conservative scholars to justify their own programs for either incremental social change or defense of the status quo. Partly as a result, in the late 1980s the production of scholarship in this vein diminished sharply. A few legal historians still make explicit use of the method pioneered by Kennedy, but typically only as a component of or prelude to a methodology shaped more powerfully by Postmodernism.