|legal theory: critical theory|
Critical Legal Studies Movement
A self-conscious group of legal scholars founded the Conference on Critical Legal Studies (CLS) in 1977. Most of them had been law students in the 1960s and early 1970s, and had been involved with the civil rights movement, Vietnam protests, and the political and cultural challenges to authority that characterized that period. These events seemed to contradict the assumption that American law was fundamentally just and the product of historical progress; instead, law seemed a game heavily loaded to favor the wealthy and powerful. But these events also suggested that grassroots activists and lawyers could produce social change.
Fundamentally convinced that law and politics could not be separated, the founders of CLS found a yawning absence at the level of theory. How could law be so tilted to favor the powerful, given the prevailing explanations of law as either democratically chosen or the result of impartial judicial reasoning from neutral principles? Yet how could law be a tool for social change, in the face of Marxist explanations of law as mere epiphenomenal outgrowths of the interests of the powerful?
Hosting annual conferences and workshops between 1977 and 1992, CLS scholars and those they have influenced try to explain both why legal principles and doctrines do not yield determinate answers to specific disputes and how legal decisions reflect cultural and political values that shift over time. They focused from the start on the ways that law contributed to illegitimate social hierarchies, producing domination of women by men, nonwhites by whites, and the poor by the wealthy. They claim that apparently neutral language and institutions, operated through law, mask relationships of power and control. The emphasis on individualism within the law similarly hides patterns of power relationships while making it more difficult to summon up a sense of community and human interconnection. Joining in their assault on these dimensions of law, CLS scholars have differed considerably in their particular methods and views.
Many who identify with the critical legal studies movement resist or reject efforts to systematize their own work. They seek to express claims of textual ambiguity and historical contingency in their own methods. Influenced by post-modernist developments in cultural studies, these critical scholars prefer episodic interventions to systematized theories. Some critical scholars press hard on a particular line of argument, and then shift away from it in order to avoid treating the argument itself as a kind of fetish or talisman.
Some critical scholars adapt ideas drawn from Marxist and socialist theories to demonstrate how economic power relationships influence legal practices and consciousness. For others, the Frankfurt School of Critical Theory and its attention to the construction of cultural and psycho-social meanings are central to explaining how law uses mechanisms of denial and legitimation. Still others find resonance with postmodernist sensibilities and deconstruction, notably illustrated in literary and architectural works. Some scholars emphasize the importance of narratives and stories in devising critical alternatives to prevailing legal practices. Many critical legal scholars draw upon intellectual currents in literature, pop culture, social theory, history, and other fields to challenge the idea of the individual as a stable, coherent self, capable of universal reason and guided by general laws of nature. In contrast, argue critical scholars, individuals are constituted by complex and completing sources of ideology, social practice, and power relationships.
Despite their variety, CLS scholars commonly:
Some critical legal scholars turned to a critique of rights as their primary subject.
Legal principles and doctrines are said to be indeterminate in two ways. First, the rules in force contain substantial gaps, conflicts, and ambiguities. Critical theorists argue that existing gaps, conflicts and ambiguities are not anomalies or exceptions but are widely present even in simple cases. Two different rules may be available for resolution of a particular dispute without any obvious reason to favor one over the other. For example, an owner who withdraws substantial water from her land to sell to others, and as a result, undermines the support for the surface of the land, can claim an absolute right to withdraw the water from her land at the same time that her neighbors can claim a right to the support of their land and protection against the nuisance of unreasonable land use. Which of these rules should govern? How should "reasonable land use" be defined? These are typical, familiar problems in the open questions posed by legal analysis of disputes.
Legal indeterminacy also arises because of conflicts in the underlying norms. Such norms include stability and predictability but also fairness and utility. The first pair point toward the consistent application of prior decisions while the second set often counsel against the application of precedent or the creation of exceptions. It is almost always possible to find some doctrine that affords authority for the normative value promoted by each competing party in a given case. In the limited set of cases where no obviously relevant doctrine exists, one can always argue for a change in the law, and find available many conventional legal arguments in support of change, such as the call to modernize outmoded case law.
Critical theorists do not trace indeterminacy to an absence of structure. Instead, they argue that the indeterminacy results from specific kinds of structures that run throughout law. For example, critical scholars identify a small, easily stated set of arguments and counterarguments are used repeatedly in briefs and judicial opinions. Like a carpenter with a limited set of tools or a singer with a small repertoire of songs, the lawyer or judge uses and reuses arguments about rights and fairness, social utility and efficiency, ease or difficulty in administering a given rule or standard, and competence and incompetence of legislative and judicial bodies. A plaintiff may object that a defendant’s conduct undermines a right to security and thereby summon judicial involvement to guard against harm. The defendant then would combine a defense based on her right to freedom of action with an argument against judicial initiative in an area unaddressed by the legislature or beyond judicial capabilities. These stock arguments can be disentangled and reassembled in other combinations, in other cases. The ability of courts to select from among predictable arguments and key arguments is a key feature of law’s indeterminacy.
To demonstrate the indeterminacy of legal doctrine, the critical scholar often adopts a method, such as structuralism in linguistics or deconstruction in literary theory, to unearth a deep structure of categories and tensions at work beneath the surface layer of legal talk. The aim is to develop a grammar or guide to those underlying tensions and to the techniques by which they are masked, expressed, and deployed. For example, Duncan Kennedy maintains that various legal doctrines revolve around a structure of binary pairs of opposed concepts, each of which has a claim upon intuitive and formal forms of reasoning. Self and other, private and public, subjective and objective, freedom and control are examples of such pairs. Some critical scholars demonstrate the influence of opposing concepts on the development of legal doctrines through history. Kennedy himself acknowledges that the psychological and social dimensions of the judicial role given even a critically inspired judge a sense of constraint, and experience vividly described by some sitting judges.
Recent work by critical legal theorists brings these methods and ideas to international and comparative law, to global markets and labor relations law, and to identity and cultural politics. Another focus of critical theorists has long been legal education itself. Instead of replicating existing social power relations, critical legal classrooms -- Crits insist -- could instead be an arena for political analysis and struggle; instead of perpetuating the pretenses of reason and legitimacy in the legal system, law school classes should expose the indeterminacy of legal doctrine. Law students can be trained simply to be tools of the existing social order or instead become social critics and activists. Critical theorists, concerned that law students will simply internalize the predictable patterns of legal decisionmaking that benefit those who already have power and privilege, instead seek to teach law students to unbundle and reframe legal arguments on behalf of those with less power.
Despite the indeterminacy of legal doctrine, critical theorists argue that actual judges and legislatures produce predictable results. Using historical, socioeconomic, and psychological analyses, the scholars try to unearth these predictable patterns and relate them to larger patterns of power and privilege. Thus, Morton Horwitz argued that 19th century American courts changed legal rules to spur economic competition and assist the mercantile elite’s search for power and wealth.. Joseph Singer recounts how 19th and 20th century courts remade property rules to permit owners to exclude people from access to commercial and other enterprises precisely as social struggles for racial inclusion grew.. Feminist legal theorists document how traditional privacy protections for families preserved patterns of male dominance, but legal reforms perpetuated the deeper structures that assign altruism to the home and selfish competitivism in the marketplace, all disguised under pictures of natural differences between the public and private spheres. Alan Freeman advanced the view that law reforms aimed at racial discrimination consistently implemented the perspective of perpetrators rather than the perspective of victims.
How can law appear fair and objective and nonetheless predictably tend to perpetuate the power of the powerful? Critical theorists suggest that psychological dynamics, such as denial provides one explanation. Mark Kelman used the psychological concept of denial to explain legal treatment of criminal law that ignore or disguise insoluble issues of intention, free will, and determinism. A related source is the effect of law’s use of abstractions that remove legal issues into a realm of concepts remote from the facts and patterns of actual power. Thus, the "right" of an employer to remove a worker who speaks in a way that bothers the employer is treated as an instance of private property, and the abstract right is cast in a way to appeal to everyone who also wants power over property. Perhaps most importantly, critical legal scholars depart from the legal realists who inspired many of themby denying that progressive social change can be easily engineered through changes in legal rules. First, law itself helps to constitute people’s consciousness, entrenching notions like the divides between public and private and market and government so deeply as to make it seem natural and beyond discussion or change. Law itself supplies many of the methods and rationales that society uses to treat racial, class, and gender inequalities as legitimate or inevitable. As a result, law cannot be itself a simple tool of progressive change.
Some critical theorists nonetheless elaborate constructive efforts to use law in pursuit of progressive politics. Roberto Unger calls for "deviationist doctrine," which can involve transferring arguments and practices that are familiar and accepted in one context to a different context where they could produce dramatic change. The idea of "workplace democracy" is a general example; the wide appeal of democratic norms and practices in politics are transferred to the workplace in hopes of redistributing power. Another form of deviationist doctrine amplifies counterprinciples or subordinated values already present in legal doctrines, such as the dimensions of solidarity and responsibility for others that are present in contract and property law doctrines, although usually subordinated to the values of self-reliance and competition.
In one work, Unger proposed a three-point program of governmental reform taking the principles of social and economic liberalism to their logical conclusions; this "super-liberalism" would include the establishment of a rotating capital fund, making capital temporarily available to teams of workers under governmentally-set conditions, and the creation of a system of rights to safeguard "individual security without immunizing large areas of social practice against the struggles of democracy."
Other critical theorists are much more wary of large, structural proposals either for institutional arrangements or for forms of legal argument. They suggest reliance on individuals’ ethical sensibilities and existential responsibilities in order to resist roles, rules and institutional practices that shield oppression and unfairness from challenge.
Opponents argue that critical legal approaches – in the classroom and in legal scholarship – undermine respect for law and dedication to law’s aspiration to be independent of politics or irrationality. Owen Fiss, for example, warns that both critical legal studies and economic approaches to law risk killing law as an arena for reasoned debate about social ideals. Daniel Farber and Suzanna Sherry treat critical legal studies as a simplistic and failed assault on liberal principles and Enlightenment notions of truth. Paul Carrington generated an intense debate among legal academics when he published an article suggesting that critical legal scholars have a "substantial ethical problem as teachers of professional law students;" because their cynicism could rob students of the "courage to act on such professional judgment as they have have acquired" or even result in "the skills of corruption: bribery and intimidation."
Some critics charge that CLS work hampers progressive political movements by challenging the idea of the subject and human agency. Others view CLS work as unimportant or failing because of inadequate development of specific policies, strategies, or constructive direction. CLS is faulted for implying that simply changing how people think about law will change power relationships or constraints on social change, although a fair reading indicates that "crits" simply treat changes in thought as a necessary but insufficient step for social change. Feminists and Critical Race Theorists object that conventional critical legal studies employs a critique of rights that neglects the concrete role of rights talk in the mobilization of oppressed and disadvantaged people. Robert Gordon has responded with a warning that even such mobilization efforts must be done with an experimental air and "full knowledge that there are no deeper logics of historical necessity that can guarantee that what we do now will be justified later."