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A New Generation of Critical Legal Studies, Or A Repudiation?

By Jack M. Balkin

Jack?s thoughtful essay on Critical Legal Theory Today?which I highly recommend?has an odd quality. It is presented as continuous with CLS of the 1970s and 1980s, updated to confront the legal challenges of the current period. But it can also be read as an argument for why folks on the political left should repudiate CLS, an argument I will draw out in this post.

As Jack points out, the CLS critique of ?legal liberalism? was aimed not mainly at conservatives but at people on the left who advocated using law to achieve their political goals. The CLS argument?to simplify it drastically?was that utilizing ?liberal legalism? (the rule of law, rights talk) in this manner was to make a deal with the devil. One might get a few token benefits from law, but at the cost of entrenching law?s overarching power-serving bent.

Jack suggests that the role of critical theory, then and now, is to study and expose the ambivalent quality of law. ?Critical theories ask how law legitimates power in both senses of the word: how it shapes, channels and restrains power and how it mystifies, disguises, and apologizes for it.?

During the heyday of the first generation of CLS, as Jack describes, the emphasis was on the ways in which law ?mystifies, disguises, and apologizes.? Hence their self-described dedication to ?trashing? law and rights. CLS emphasized legal indeterminacy to show the manipulability of law, and it revealed the permeability of legal concepts like the public/private distinction. The CLS mantra: ?law is politics.?

Now, however, we are confronted with an Administration that shows little regard for the law (except when it can use the law as an instrument to achieve the ends it desires), and that is aggressively seeking to stock the bench with conservative judges who will infuse the law with their conservative political views. In view of these actions, a previous post took the position that a strong argument can be made that the Bush Administration vindicates CLS.

In truth, however, the actions of the Bush Administration serve to highlight the grave error of CLS. Bush and company have reminded us of how essential law is in the effort to restrain power, and how flimsy?though also resilient?it can be in the face of determined government actors.

Despite their radical stance, the many genuinely idealistic people who participated in CLS were in one sense not radical enough. They truly believed that exposing the ways law serves power through mystification would be beneficial. Once we collectively see law for what it is, they apparently thought, the way would be open to make things better. [From here on forward, I should note, the explicit argument is more mine than Jack's, and should not be read as a close paraphrase of his essay. I don't know whether Jack agrees with what follows.]

If one takes the more coldly realistic view that powerful interests generally get their way (in the end), then the fact that law serves powerful interests is merely one manifestation of the ordinary course of things.

The key question is not whether law serves power (of course it does), but rather, are there any effective ways to temper or limit power? Other than the presence of competing sources of power serving to limit one another?s ambitions, our most effective social invention for constraining power is law. This is the side of law that ?shapes, channels and restrains power,? as Jack put it.

This effect is achieved by the relative autonomy of law (which CLS confirmed). To obtain credibility with the populace, the law must regularly live up to (or appear to live up to) its claims to be just and to apply to the powerful and weak alike, and this is how law comes to restrain power, even as it also serves power. Moreover, over generations, owing to the effect of legal ideals, people (including government officials) come to genuinely believe in the law, and this belief has a constraining effect on actions.

The process by which law works is almost magical: belief in and commitment to law and to legal ideals creates a reality in which law matters.

In situations where people are pervasively cynical about the law, this magical effect does not work. Law and legal interpretation, then, are manipulated (exploiting the indeterminacy of law) without restraint to do whatever one wants with a legal imprimatur; like, for example, coming up with a twisted legal interpretation of ?torture? that purports to exclude waterboarding

If this argument is correct, then the total delegitimation of liberal legalism, which CLS sought to do, threatens to emasculate the good that law has to offer by spreading cynicism about law.

Moreover, CLSers who argued that the rule of law is a fraud now have a difficult time criticizing the Bush Administration for its blatant disregard of the rule of law. After all, if you don?t believe in the rule of law, or if you believe that supporting the rule of law tightens the chains that secure an unjust social order, then it?s hard to come to the defense of the rule of law in times like this.

Jack?s essay on Critical Legal Theory is gently critical of CLS, but I am inclined to think that the correct course for those on the political left?as sympathetic as we might be to the politics of the CLS movement?is to come out more strongly and say forthrightly that CLS was fundamentally wrong in its thrust and tactics [with apologies, affection, and respect to my friends in CLS].

Law is essential for the reasons stated above?for the reasons elaborated on by Marxist historian E.P. Thompson (who Jack mentions at the close of his essay)?so any attack from the political left that aims to completely undermine the law is ultimately detrimental to the goals and causes the left hopes to advance.

The choice of the left must be to stand up and defend the integrity of law.

This does not mean that one should not expose the ways in which rhetoric about the neutrality of the law conceals a particular bent and bias. My recent essay, ?The ?Dark Side? of the Relationship Between the Rule of Law and Liberalism,? discusses a long historical pattern (continuing to the present) in which liberal theorists have strategically invoked the rule of law against democracy.

That sounds like classic CLS stuff, but there is a fundamental difference in orientation. I styled and presented the essay not to show that the rule of law has been utilized in untoward ways (which is certainly the case), but rather to defend the rule of law against opportunistic abuse.

The rule of law is an essential political ideal. When confronted with bad things accomplished in the name of the law, the best response is not to undermine law as a fraud. The best response is to demonstrate that these offensive applications betray the ideals about right and justice that law espouses and claims to represent.

This is a time honored (agonizingly slow) way of advancing the state of the law. And it?s the best we have.

Full post as published by Balkinization on February 11, 2008 (boomark / email).