Law School Encounters with Critical Perspectives on Law: Part III

During my third year of law school, I took two courses that afforded opportunities to reflect and process what I had been learning about critical approaches to law. Both courses were taught by Dr. Richard Stith, a Roman Catholic law professor and legal philosopher well-acquainted with the Western legal tradition. During my third year, I also read an influential book by Harvard law professor Mary Ann Glendon (a Roman Catholic) about American lawyers, judges, and law professors.

In the fall 1997 semester, I took an elective course in comparative law. Stith used the second edition of law professors Mary Ann Glendon, Michael Wallace Gordon, and Christopher Osakwe’s Comparative Legal Traditions: Text, Materials and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English and European Law, published in 1994. Before embarking on an extended study of the civil law and common law traditions, the editors introduced readers to the comparative study of law and the concept of legal tradition. They expressed their understanding that a tradition is vital, dynamic, and enduring, not frozen and static, and they credited the legal traditions that stem from the European legal culture with fitting this definition. This legal culture, which some identify as the Western legal tradition, has developed from the early Middle Ages to the present day, and it includes the Romano-Germanic civil law tradition, the Anglo-American common law tradition in Great Britain, the United States, and much of the British Commonwealth, and the twentieth-century socialist legal orders of Eastern and Central Europe.

The editors’ treatment of the concept of legal tradition included excerpts from works of legal historians Franz Wieacker and Harold J. Berman, highlighting several prominent elements of the European legal culture also reflected in the Anglo-American common law tradition. One element is personalism. Personalism involves the assignment of primacy to the individual as the subject, the end, and the key conceptual reference point in the idea of law.

A second element is legalism. Legalism is evidenced by the following:

• the development of bodies of law, legal systems, and legal institutions that are distinct from other social rules, systems, and institutions,
• the administration of those systems and institutions by individuals trained in a specialized body of learning,
• decisions about social relationships and conflicts based on general rules of law,
• the relative autonomy of law from politics and morals,
• the ordering of public and private conduct based upon established rules that are rationally comprehensible and part of growing, coherent bodies of law,
• the existence of diverse jurisdictions and legal systems in the same society, and
• the supremacy of law over people, politics, and political authorities.

A third element is intellectualism. Intellectualism is reflected in the search for essences, concepts, and themes that inhere in the making and application of law, the cultivation of a legal science that systematizes law and resolves tensions, and the fostering of a dialectical process of evaluation, refinement, and development.

In the fall 1997 semester, I took a required jurisprudence course.[1] Rather than using a legal publisher’s casebook, Stith prepared a course packet of materials. In Part One of the course, students explored what law is and how it obligates people, and they considered the authority of rules and courts. Most of the readings were drawn from key legal philosophical texts, but a few focused on CLS. One CLS reading was a report by Andrew P. Clark, “Philosophies at War in Law Schools.” His 1986 report noted that ideologies across the spectrum had begun to play a much greater role in legal education. Among the different philosophies discussed were CLS, law and economics, and natural rights theory. His report identified Legal Realism and deconstructionism[2] as the two key intellectual parents of CLS, and it explained that crits understood law to be indeterminate and deployed their radical rhetoric and critical methods in challenging the legitimacy of various theories used to justify judicial decisions.

Another Part One reading was law professor Sanford Levinson’s 1989 essay “On Critical Legal Studies.” Levinson, a self-identified CLS member, described the movement as the latest manifestation of Legal Realism, a twentieth-century legal philosophy that revolted against formalism and viewed law as “congealed social power.” He explained that realists thought that “such justice as exists is wholly dependent on the justice of those with power,” and he expressed doubt that law would “tame the powerful.” He observed that realists and many crits were influenced by contemporary literary theory. As a consequence, they emphasized the indeterminancy of interpretation and the open-textured nature of legal language, and they surmised that the reader-interpreter “creates the meaning of a legal text rather than the text . . . independently forc[ing] any given meaning on the interpreter.”

Levinson also noted that crits went further than realists in arguing that “judges feel compelled to reach certain decisions because they are caught within the web of a given legal consciousness that makes certain results appear ‘obvious.’” According to Levinson, CLS analysts suppose that legal discourse employs categories and ideals to rationalize and justify the social order for the sake of the powerful, and they aimed “to show that nothing in our [social order] is ‘inevitable’ or ‘natural.’” In his essay, he also observed that crits are deeply ideological and that “the ghost of [Friedrich] Nietzsche haunts a lot of the contemporary debate” regarding CLS.

In Part Two of the jurisprudence course, students turned to self-interest, desire, will, and reason as possible “higher” authorities that could give people a reason for obeying law.[3] Thus, in Part Two, students considered whether a person’s concern for his or her own well-being (self-interest) or whether a person’s desire to do what he or she likes, what makes for happiness, or what leads to the happiness of the greatest number (desire) could provide an adequate justification of law and legal obligation. Likewise, students considered whether adequate justification of law and legal obligation could be found in the will of God, a ruler, or a group (will) or in knowledge of what is good and right in human relations that is derived from intuition, reason, or divine revelation (reason). In this part of the course, students read an array of writers, including Aristotle, Thomas Aquinas, C. S. Lewis, Martin Luther King, Jr., and Pope John Paul II.

Part Three offered a summation of the course, but it also included two short readings of Friedrich Nietzsche: Parable of the Madman and an excerpt from the Prologue to Thus Spoke Zarathustra. Stith invited students to consider how the madman and Zarathustra, the crowd of listeners, and unbelief in God may have analogues in American legal philosophy. The madman and Zarathustra who announced God’s death but found the listeners not yet ready for the announcement could be analogous to crits who grasped in some measure the significance of the unbelief that had come to dominate American legal philosophy. The amused, unbelieving listeners, the last men confronted by Zarathustra, who deemed themselves above superstitious beliefs and were seemingly unphased by the loss of the idea of God and truth, of right and wrong, could be analogous to legal realists who did not appreciate the significance of their unbelief in law. Although believers were not directly addressed by the madman or Zarathustra in these writings, they could be analogous to legal philosophers who came before legal realists, who believed in the rule of law and reason, and who embraced an understanding of law that had sustained the Western legal tradition.

Drawing upon course readings, Stith explained that Legal Realism together with approaches to law informed by Marxism viewed the traditional notion of the rule of law (i.e., the idea that all persons and institutions are subject to a rational system of law and rules that prevents arbitrary use of power) as subterfuge masking the real reasons for judicial decisions. Indeed, according to realists and crits, rules cited by judges as reasons for their decisions were either based upon illusion or grounded on deception. Accordingly, in their challenge to the reasons and justifications cited by judges, legal realists and crits recharacterized law as whatever judges say it is, and they stirred up distrust of both reason and law. The jurisprudence students were also invited to reflect upon the implications of such distrust of reason and law and of the loss of a reason-based system of law for a democratic society that is premised upon the rule of law.

During my third year of law school, I also read Glendon’s recently published book A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society. In her book, Glendon, a professor at Harvard Law since 1987, examined significant changes in practicing, judging, and studying law in the second half of the twentieth century in America and the implications of those changes for the law-dependent American society. She found great cause for concern in what she identified as the principal shift that had occurred among lawyers, judges, and law professors. That shift was in the understanding of civil government—from a government of laws to a government of men.

In telling the story of this shift from understanding government ruled by law to government ruled by men, Glendon explored changes in the legal academy, including those associated with CLS and other critical perspectives. In Chapter 10 (“The New Academy—Look, Ma! No Hands!”), she discussed the new legal academy of the 1960s to the early 1990s. She described CLS as “a capacious umbrella covering a varied collection of individuals, connected through personal relationships and ideological sympathies, sharing some loosely related ideas and a mood of resentment regarding the distribution of wealth, power, and prestige in society” (210). Crits sought to trace “hidden patterns in the history, structure, and operation of the Anglo-American common law,” and they discerned “a more or less sinister pursuit of class, gender, or other interests in a hegemonic struggle for power” (211). Additionally, she observed, crits were evangelistic in making converts, and they had their heaviest influence inside the legal academy. Futhermore, they actively encouraged the subversion of hierarchy, sought to dismantle and reorder all substantive areas of law, and aimed to create a state of constant ferment.

If crits were descendants of legal realists, Glendon thought, they went much further in several respects: they asserted “that there is no such thing as a fact and that all rules are radically indeterminate and manipulable”; they condemned “the entire legal system as fatally corrupted by racism, sexism, and exploitation”; and they viewed “law [a]s nothing more than concentrated politics” (214). Although crits were seemingly willing to “junk the rule-of-law tradition” (214), they rarely offered “any constructive legal or social changes” (212). In this context, she reminded readers of the following cautionary word from Oliver Wendell Holmes, Jr., a key figure in Legal Realism who brought a skeptical perspective to American law and legal institutions: “‘experimenting in negations’” is “‘an amusing sport,’” but it must be remembered “‘that while it takes a few minutes to cut down a tree[,] it takes a century for a tree to grow”[4] (214). Glendon also observed that, as the CLS movement fizzled out in the early 1990s, the energy transferred over to CRT and FLT, and “many ‘old’ crits reinvent[ed] themselves as feminists, multiculturalists, champions of gay rights, and environmentalists” (215).

Footnotes

[1] At that time, two sections of the jurisprudence course were offered at my law school: one taught by Stith, and the other by a feminist jurisprudent.

[2] Deconstruction is a method of critical analysis associated with Jacques Derrida that scrutinizes texts, language, and social institutions, seeks to discern underlying assumptions, ideas, and frameworks, denies that texts have fixed meanings, and questions traditional assumptions regarding truth and certainty.

[3] The turn to these other authorities was needed because the social fact of law (the subject of Part One) did not seem to provide adequate justification for law and legal obligation.

[4] Oliver Wendell Holmes, Jr., His Book Notices and Uncollected Letters and Papers 139 (Harry C. Shriver ed., 1936).