The Law: Critical Legal Theorists

Originally, the whole reason I started writing about the law was in anticipation of a discussion of same sex marriage. And now here we are, the day after the Bill passes. I suppose I should get cracking.

To recap the last four law posts, I talked about the evolution of jurisprudence. From Aristotle's Equity and Aquinas' Natural Law, to Hart's idea of the law as a system of rules dependant upon recognition. I ended with Dworkin's principles. There are many other systems, of course; Leon Fuller's internal morality, or Devlin's paternalism. But they aren't quite so interesting, so I'll skip them.

Back here, I talked about power and discourse. There's a philosophy of law based upon Foucault's (and those of other continentals) ideas - Critical Legal Studies. If this post is a bit choppy, it's because it's just my study notes for the final exam. Here, I'm just repeating my professor's presentation of CLS, not critiquing it myself. But suffice to say, I really like this account of law. Sorry for the length.

CLSers say the law is neither repressive or a repository of noble but perverted ideas. It is a discourse that quietly conditions how we experience social life. I.e., it creates distinctions between employers and employees.

The law creates categories of separation; we are individuals given rights to protect our isolation. Then the law provides formal channels to re-connect, through things like contracts, partnerships and corporations.

It also splits up the world into categories that filter our experience. For example, the law tells us which harms we have to accept as "the hand of fate," which are our own fault, and which are the fault of others. An example of this is sexual harassment; at one time, it was simply an occupational hazard for women.

The basic points: 1) Power. The law is not just the tool of the powerful - all of us invoke it every day. But the ability to actually wield the law on your own behalf is one of the primary sources of power in our society. I.e., money to pay for a lawyer. So the law will reflect the interests of those with the power to pay for it.

2) Legal discourses normalize the status quo. Even a complaint of discrimination implies that this single act of discrimination is only a momentary disruption that can be resolved through law - this is the belief that the system will work if you let it.

Another example is a middle-aged woman that buys a cheap promotional package at a dance studio, then is flattered into buying a giant, huge, expensive package. To get out of this contract, she'll have to pay for a lawyer who will argue that this was a case of fraud. Even if she wins, she has reinforced and participated in a system that assumes "‘normal' marketplace relations are unproblematically voluntary, informed, non-coercive, and efficient."

Our legal system presents a particular view of society to us: that society is a series of dealings between genuinely free and independent equals, and any appearances of inequality is just because the law has not been properly applied.

So the big premise - legal action is political action, and it is typically - though unnecessarily - conservative.

CLSers want to take the law apart and change the social discourse it has hardened.

Why isn't CLS more widespread? Legal educations make even lefties conservative because of all the money involved. Traditional legal educations talk about centrist positions - middle ways.

Methods CLSers use against mainstream legal discourses:

1) Trashing. It's a 60s' phrase. About making attacks against the system's claim that it is the best system. Trashers point out the inconsistencies and logical loops in traditional discourses.

For example, their attack on legal economists. Legal economists' basic assumption is that people are "rational self-interested maximizers of their satisfactions." In other words, they assume people "want" everything they get.

Which is silly. People are often irrational and, in truth, what they really want is non-material things such as the recognition of others. Legal economists are a product of our consumeristic culture. This is a type of individualism that the economists claim is universal, but it is a product of the market forces of our society.

The CLSers (aka Crits) don't totally dismiss legal economism; they just point out it is a type of rhetoric that can be manipulated. It isn't a science, just a sometimes useful perspective. It obscures from view - it can't even talk about - the huge portions of human existence that violent, coercive, irrational, etc.

Trashing is very similar to deconstruction; I'm not sure why CLSers bother to make the distinction.

2) Deconstruction. CLSers don't believe that the law is pure power or personal whim; there are patterns and CLSers use deconstruction to find the patterns. For example, there are plenty of laws that make it easy for business groups to pursue their political and economic interests, but make it difficult for labour, poor people, and civil rights groups to pursue theirs.

The law often holds contradictions within itself that can be deconstructed. Like contract law; there are two opposite views that underlie it. One is a neo-Hobbesian vision where everybody is out to get each other and we need the law to protect ourselves from each other. The other view is one where people will long term relationships assume a certain level of trust and responsibility. Both images are possible in every ruling about a contract, though the system persistently gives the Hobbesian view precedence and leaves the other view for minority cases.

3) Genealogy. This is about showing how the transitory and manipulable ways our legal discourses divide our world — write their history. Crits write a lot of histories of legal categories. For example, they write about how corporations went from serving the public interest to being private in the 19th century.

Another example is private property. The definition of private property has never actually had been definite or totally agreed upon. The legal system makes it seem otherwise, and Crits point out that this stability is an illusion.

An example case for Crits. A group of picketers demonstrate in a shopping mall, and are kicked out by the owner. The standard way to approach this case is to balance rights. The property right of the owner to exclude unwanted visitors vs. the protestor's right to free speech. The standard way to balance these rights is to discuss the private and public spheres. The more private a shopping mall is, the greater the right to exclude.

Crits would begin by discussing the justifications of property rights. Like the efficiency rationale that says the owner will yield the highest valued uses of the property. But it is not at all clear that shoppers dislike picketers, or that they dislike them enough to shop somewhere else. And even if shoppers don't like this, their preference might be like the preference of not wanting to sit next to blacks at a lunch counter and not entitled to recognition.

The privacy rationale for exclusion is much less convincing when you look at a mall as being owned by a bodiless corporation that lets hordes of strangers swarm over its "private" property.

While Crits would probably argue for the protestors, this doesn't mean that free speech isn't also subject to criticism. They still point out that when the mall owner yells "private property!" it's like a mystical incantation meant to silence criticism... and then the protestors shout their own mystical incantation, "free speech!"

That's the first phase of CLS - pointing out what's wrong with the system. The second phase is about trying to change things. Whether it is a basic re-assessment of democracy itself or localized activist activities like housing, immigration or labour.

One of the effects of the law is to constrain our ability to imagine alternative social arrangements.

For example, our current liberal system assumes the purpose of government is to facilitate the individual pursuit of self-interest. But there are other ways of doing things - ie, republicanism, in which politics is for facilitating self-development through participation in community governance.

Another example is "downward professionalization." Concerning welfare and social work, we could follow the New Deal-era example and give the broad discretionary power currently in the hands of judges and bureaucrats to street level social workers.

So why does CLS piss so many people off? It is the harshest critique of law since the legal realists. Just like the realists, it shows how malleable and arbitrary the law really is. The other challenge to mainstream legal thought is that CLS studies law in a social context - meaning it shows how politics and culture prevent formal legal rules from working like legal theorists (like Hart) say they should.

Since CLS is basically a radical movement of the left, that's enough to make some lawyers see "Red." CLSers get called Marxists, Stalinists, nihilists, hippies/yippies, anarchists, "Bolshevik saboteurs,"etc. Mainstream lawyers assume CLSers simply think the law is a tool of the capitalists to suppress the workers.

CLS has sophisticated opponents, too. After all, CLS is out to reduce the authority and legitimacy of the establishment. And CLSers aren't always polite in their writings; sometimes they use parody, satire and occasionally even scatology. The legal system gets a lot of its power from being solemn and, well, pompous. Lawyers are arrogant, and CLS takes it all down a peg or two.

CLSers run into a lot of trouble with the legal intellectual establishment, because they don't idolize guys like Austin and Hart. CLSers tend to look to Europeans for their heros, guys like Michel Foucault. To quote the author of my textbook,

"I have heard one. . . denounced CLS as ‘un-American' and another disparage it as infected with ‘French and German' influences. Ah, the Continent - that dark breeding ground of dirty postcards and pestilential philosophic vapours!"

Other opponents - the "technocrats" - are positivists. They think that the law is grounded in scientific ideas of regularity and certainty, and they hate the CLS reduction of social science to a bunch of rhetoric.

Some see CLS as a threat to liberal freedoms. If every "right" is capable of being turned upside down by reinterpretation with such ease, then what will we rely on to save us from fascists and the mob??? CLSers answer that the term "legal rights" is short hand for the social practices that we collectively maintain. We value the latent promises of utopia in them.

Sometimes the pretense that legal rules have an objective, fixed set of meanings is a good thing; if you're living under an oppressive dictatorship, then you'll want to appeal as often as you can to transcendent legal principles to try and force change.

But the idea of an objective source for legal rules can be oppressive too; they encourage people to think that the ideas codified in law are solid and unquestionable. As long as our rights are protected, we are told, we can't complain about anything.

"A commitment to legalism can never substitute for a commitment to the ideals law distortedly symbolizes."

He quotes Vaclav Havel, a Czech dissident. Even in ideal cases, the law is only one of several imperfect ways of defending what is good in life against what is worse. "Establishing respect for the law does not automatically ensure a better life, for that, after all, is a job for people and not for laws and institutions."

The harshest criticisms of CLS come from vetern lawyers, who are the most cynical people of all when it comes to the law. They've made their peace with the way things are, and have labeled that maturity; for the sake of their peace, they wish everybody else would follow suit.