critical legal studies and roberto unger and duncan kennedy

The early 1980s were a fascinating time for American law. Two formidable forces were gathering steam in an attempt to take control of the heart and soul of American law. One of them was very visible in the 1980s; one was almost invisible. However, that very visible movement 20-25 years ago has all but perished today while the invisible movement has become dominant. I am referring, respectively, to Critical Legal Studies and the Federalist Society. Whereas the first was fueled by those who felt that the 1960s had brought a different consciousness to America and the world, the second was driven by anger at the activist agenda of the previous 20 years, especially as manifest in decisions such as Griswold and Roe. This essay will deal only with Critical Legal Studies; the story of the Federalist Society still needs to be told (and I won't do it here).

CLS--The Essay that "Kicked it Off"

The "big name" that helped define some of the agenda for CLS is Duncan Kennedy, professor of law at Harvard since the 1970s. Though he had written critiques of the law school in the 1970s, his seminal essay, widely reproduced, "Legal Education and the Reproduction of Hierarchy" (1982), set the tone for CLS. In that law review article he is confronted by the reality he sees all the time as a law professor. Students come in fired with an enthusiasm for law and for using it to aid the "little people" in society, but within two years they all want to become corporate lawyers, helping the very organizations and institutions that they vowed to oppose two years previously. What is "up?" Kennedy argues in this seminal article that legal education systematically "maims" students, making them think that legal reasoning is different from other kinds of thinking and suggesting to them that "hard" analysis of cases with answers consisting of "rules" is to be preferred to "soft" analysis of problems focusing on policy analysis. As a result, students are progressively infantalized and alienated. They are treated as if they are high school students at best, and they willingly take on the hierarchical trappings of law that their professors assume or demonstrate.

The Origin and Goals of CLS

One of the other early proponents of CLS was Peter Gabel, who wrote a rather scathing review of Ronald Dworkin's highly-regarded Taking Rights Seriously when it came out in 1977. In an article published as a response piece to Kennedy when Kennedy's essay and responses were published in a book form in 2004, Gabel explains the intellectual origins of CLS, the two branches of its interest and the continuing hope for CLS. The remainder of this essay will deal with these issues.

As with many things which crystallized in the 1970s and early 1980s, they came as reactions to earlier things. The Federalist Society, as I mentioned, grew up as a reaction to the "liberal" or "activist" agenda of the Warren and Burger Courts. CLS, however, emerged from the belief that the "consciousness" of the 1960s was fully different from what happened previously. The "60s" commitment to egalitarianism, rights for all, commitment to the environment and societal inclusiveness meant that society just had to change. As with Bentham towards Blackstone or the Legal Realists towards Langdell, so the CLS folks had nothing but seething resentment toward their comfortable middle-aged white male teachers at the law schools, steeped as they were in the genteel world of legal process. Listen to the way that Roberto Unger describes his teachers at Harvard in the early 1970s:

"When we came, they [the law professors] were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars and found the mind's opportunity in the heart's revenge."

I want to pause for a moment on this notion of the priesthood which had lost its faith. Gabel, in the linked article above, uses slightly different words which amount to the same thing. There was the sense in the 1960s that everyone was just playing a "role" in society, the "role" that had been thrust upon a person by virtue of the necessities of life or the historical moment in which a person lived. It dawned on Gabel when he was watching President Lyndon Johnson giving speeches during the escalation of the Viet Nam War that he, too, was just playing a role. Young American men were just playing the role of being soldiers and heading off to their deaths.

And then it dawned on Gabel and others. Yes, this is where the uncritical playing of roles gets you: death. No one cares for you. You are simply a pawn in an impersonal and dehmanizing system that wants to suck all the life out of you and leave you dead. When the power of this realization dawned on Gabel (and others), life could no longer be the same. Every institution in American life, including law, had to be examined with critical insight (and disdain*)

[*In a kind 11/17 email to me, Mr. Gabel says the following: "we weren't disdainful leftists so much as on a mission to realize the insights of the 60's--insights into "authentic being" and the possibility of a communal world is the way i'd put it. To me this seemed like a huge effort against the weight of consciousness of the whole system (remember in law there hadn't yet been a cls and so we had to militantly and passionately fight to pry open the closed space of the law schools--it's not like there was already a legitimate space for consciousness critiques like ours). I would say we were uncompromising because we had to be to force ourselves into public space, but we weren't disdainful and were 'always' (more or less) polite and respectful of the humanity of those whom we were trying to force to recognize us and what we had to say. My review of dworkin perhaps went to the limit on this, but in the reality of that historical moment, it was important for me to directly challenge his world-view in order to make it clear how we 60's radicals were different from the liberals whom we saw as really wanting to keep things basically just as they were."]

to understand how it contributed to this deadening of the American spirit. Now, we ought to be able to understand perfectly why Kennedy's 1982 article was the clarion call to the movement. Not only was "death" and "alienation" a part of American society in general, but it was being perpetuated right in the bowels of the law school. And, it must be exposed.

Critical Dimensions

As Gabel says in his article, the twofold critique developed by CLS then followed: "what might be called the critique of alienation on the one hand and the neo-legal realist/deconstruction critique, which became known as the "indeterminacy" critique on the other." Kennedy and a few others pursued the first agenda, while the "indeterminacy" critique became the focus of most CLS types. It was

"devoted almost exclusively to demonstrating in a myriad of specific instances--in hundreds of articles--..namely, that all legal reasoning as well as justifications for the alleged legitimacy of legal reasoning (e.g., the work of Ronald Dworkin) can be shown to be sufficiently vague, circular, self-contradictory, or manipulable so as to not provide any plausible justification claiming to legitimately dictate the outcomes of cases."

In other words, Dworkin (whom we will consider next week), the leading jurisprude of modern times, was simply replacing HLA Hart and the modern positivists as the sort of "high priest" of the reigning liberal legal consensus in the 1970s and was, in fact, doing nothing more than putting window dressing on a system which had not at all reformed.

Conclusion--The "Indeterminacy" Critique

The "indeterminacy" critique may indeed have a lot to be said for it but, ultimately, was perceived as something producing nothing more than a sort of destructive analysis of mostly liberal people (like Dworkin) who were wildly popular among students and others who sought refuge from "Reaganomics" and the "Reagan revolution." Thus, in some ways, CLS priced itself out of the market. People in general were looking for a critique of Reaganism and not a critique of the critics, especially when this second critique was often buried in opaque terminology borrowed increasingly from French deconstructionism and Marxist analysis. Thus, Gabel himself, who never gave up his fundamental criticism of Dworkin and the dominant legal culture, pretty much abandoned the "mainline" legal culture by becoming the Director of the Institute of Spirituality and Politics in Berkeley, CA. He taught law in that context, and taught it in a way that was critical of traditional law schools, but his critique and material has not "caught on" in wide circles. America's move to the Right, especially since 1981 (the Clinton Presidency didn't really retard the movement too much), has left those on the extreme left feeling quite in a minority.

I don't think their voices have died. Indeed, I think that even now there are people all over the country planning a "far Left" self-reinsertion into the mainstream of American dialogue and thought. I think, however, that it will be many years before this effort takes deep root.

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