November 16--Critical Approaches
Professor William R. Long 11/16/04
Critical Legal Studies/Postmodernism
Over the last 30 or so years a number of "isms" or critical approaches to law have emerged on the American scene. The reasons for some of them are immediately recognizable to the American law student (feminist legal theory; critical race theory; "lat" crit), but others are coated with layers of opacity that resist even diligent attempts to understand them ("critical legal studies"; "post-modernism"). I will employ the method here which I think worked for us in trying to get a grip on "modern" thinkers (Fuller, Dworkin, Finnis, Hart, Rawls, Kelsen): (1) understand the movements or individuals to whom they were reacting; (2) know the chronology and significant points of their major works; (3) focus on the terminology that is important to them in expressing their leading concepts. This essay will consider "background" issues; the next essay will go into a few of the "isms" more closely.
Critical Legal Studies
The movement that first created quite a stir about 20 years ago in American legal education was dubbed "critical legal studies." Just as US News and World Report staged a coup in the 1980s by publishing its lists of the "top colleges," etc. so Harvard Law School did the same (as if they needed to do so) in the mid-1980s when a few well-placed articles described the (seemingly startling) things happening there. Professors apparently "didn't believe" in law or, better said, were only interested in "deconstructing" or "tearing down" the entire legal edifice which had been neatly constructed and patiently attended to over decades and centuries.
The Dean of Duke Law School, in a snit, said that these modern or postmodern or critical scholars (no name for them had been decided upon) ought to give up their teaching positions because they were like theologians who didn't believe in God anymore. These widely circulated articles (in the New York Times and the New Yorker) made people rush to try to understand what these younger faculty were doing to (purportedly) try to dismantle the structure of American law. Here are a few things to understand about what they found.
Reaction to a Previous Generation
I think I have prepared you well for this point. I have stressed how each significant jurisprudential movement in history begins by trashing its predecessors. Often the criticsm is very personal (Bentham on Blackstone; the Realists on Langdell), but it always is also expressed in tidy legal or philosophical terms. The movement called "Critical Legal Realism" is no exception. Fueled by people born mostly in the 1940s, who came of age during the Viet Nam era and the collapse of the European colonial worlds, these scholars believed that the education they received at law school was nothing other than a collection of tired cliches of a socially and economically-entrenched professoriate. The most fiery critic of the old order was a HLS professor named Roberto Mangabeira Unger (ironically the son of a wealthy South American family). Listen to the last sentence of his book, The Critical Legal Studies Movement,
"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."
Is this Bentham come back to life or what?
But what was significant to note is that Unger's anger, so to speak, was encased in the most obscure prose, fueled as it was by categories from Hegel's Phenomenology of Mind and other European works that aren't as familiar to American students as "Mary Had a Little Lamb." So, the thunderbolts that he hurled against the old order were seemingly blunted to the degree that the conceptual world out of which he came was obscure. Yet, you should understand what I call the three roots of the Critical Legal Studies movement in the 1970s-1990s. I will mention them here and then develop them in the next essay.
Root # 1: The Frankfurt School. This was a group of (mostly Marxist) scholars who set up shop in Frankfurt-am-Main in Germany after the dramatic defeat of Germany in WWI and tried to subject the culture of Europe to a detailed critical review--why the supposed cultural and intellectual engine of Western Europe had ended up in such a devastating war.
Root # 2: French Structuralism and the Reaction to it through Deconstruction. All the rage in the post-WWII period in France was structuralism. Levi-Strauss and his Raw and the Cooked was on everyone's lips. The reaction to structuralism set in through deconstruction, a movement initiated by Michel Foucault and Jacques Derrida (who died during the course of this class) through his essays beginning at the end of the 1960s.
Root # 3: American Legal Realism. Though Unger was not steeped in this tradition, the American scholars who wanted to "join" the critical legal studies movement were mostly steeped in the methods of legal realism. That is, they were committed to empiricism and were adamantly opposed to "formalism," however that was defined.
There were ancillary influences on these critical scholars, too, but one movement that they seemingly avoided was the linguistic philosophy that had its origin in "fin-de-siecle" Vienna and then migrated to Oxford in the interwar period (culminating, in English, in the publication of AJ Ayer's Language, Truth and Logic in 1936), against which HLA Hart reacted at Oxford (and Rawls reacted against this as well, as Professor Martha Nussbaum has shown).
Thus, by the early 1980s, you had a complex stew of intellectual vegetables and meat that was mixed and served to law students at the elite law schools. The jargon was incredibly intense, however, and most American students, who just thought they were going to law school to study "LAW," were either confused, bemused or, out of respect and sometimes a desire to imitate their professors, actually stimulated. I think the "movement" made two very large contributions to the study of law, which I will describe in the next mini-essay.
Copyright © 2004-2007 William R. Long