Law School Encounters with Critical Perspectives on Law: Part IV

My initial encounters with critical perspectives on law together with my subsequent experience in law and legal education have led to several observations.

The Need for Attention to the History of Ideas

Although widespread public discourse in America regarding critical perspectives has emerged only in the last decade or so, discourse regarding these perspectives has been underway for some time in higher education, including American law schools. Both those who embrace and those who resist these perspectives need to understand this history. A deeper understanding of this history may help to make discussions of these perspectives less contentious and counter-productive, and more thoughtful and constructive.

The Demise of CLS and the Rise of Other Critical Perspectives on Law

The vitality of CLS had largely dissipated by the mid-1990s. As a movement, it generated more criticism of the existing state of affairs than solutions, and it ultimately offered little in terms of constructive reform. Nevertheless, despite its brief duration as a force in legal thought and legal education, CLS pushed the skepticism of Legal Realism in the direction of a more cynical understanding of law and legal institutions, and its deconstructive and activist program was readily adaptable for use by proponents of other critical perspectives on law (i.e., CRT, FLT, critical latino/a theory, and queer theory). These other critical perspectives on law have grown and filled space vacated by CLS, and these perspectives on law have remained viable forces in American legal thought and education.

The Critical Perspectives on Law and Ideology

Proponents of CLS and other critical perspectives on law have sought to discredit those who believe that objective reality is knowable, that neutral reasoning is possible, that texts have ascertainable meaning, and that judges and lawmakers in their work can engage in objective, neutral reasoning processes. Having impugned objectivity and neutrality in law and legal reasoning, proponents of these perspectives contend that law is inseparable from politics, and their ideological commitments govern how they interpret and explain the past and the present, how they analyze and classify individuals and institutions, and what agendas they seek to advance. Accordingly, these perspectives on law should not be understood to provide ideologically-neutral, analytical frameworks. Rather, they are ideologically-freighted, analytical frameworks. And, as those who were formed in American law schools over the last five decades have graduated and assumed leadership roles throughout American society, many have carried these perspectives and frameworks with them and shared them with others.

The Challenge to the Western Legal Tradition

Critical perspectives on law represent a challenge to two of the three key elements of the Western legal tradition—legalism and intellectualism—and this challenge imperils the rule-of-law ideal, which is one of the most important contributions of the Western legal tradition. Furthermore, as the skepticism (even the cynicism) of the critical perspectives on law degrades knowledge, understanding, and wisdom provided by reason and revelation, a crucial question arises: what justifications for law and legal institutions remain after reason and revelation are degraded other than will and power? Legal Realism, CLS, and critical perspectives on law have thus brought legal thought to the place where the rule of men (not law) and the will of the powerful (not will tempered by reason and revelation) may be all that remain to govern society.

For our democratic society, which is premised upon the rule of law, the negative implications of the distrust of reason and revelation and the loss of a reason-based system of law are profound. The negative implications would seemingly include losses to the legitimacy of judicial decisions and equality before the law, to public and private freedom, to security in one’s person and property, and to a market economy premised on fixed rules. This development should be deeply concerning.

The Reception of Helpful Insights

Proponents of critical approaches to law provide some insights that are helpful in identifying injustices in law and legal institutions that require our attention and remedial action. With their help, Christians can see more clearly that sinfulness has both individual and institutional manifestations and that sinful humans often construct institutions and structures that exhibit sinfulness and transmit it over time. Christians can also see more clearly that sinful human beings have used their power in and through law and legal institutions to advantage themselves and disadvantage others and thereby have created a gap between the ideals they profess and the reality they make. Furthermore, with their help, Christians can see more clearly that race is a social construct used to justify injustices and likewise that sex and sexual differences have been used to justify injustices. Accordingly, Christians can learn important lessons from proponents of critical approaches to law.

These lessons should inspire Christians in several different ways. First, they should inspire Christians to hold fast to the fundamental teaching that each and every human being is created in God’s image. Second, they should inspire Christians to scrutinize carefully all laws and legal institutions to identify and correct manifestations of sinfulness and injustice. And third, they should inspire Christians to endeavor to ensure that power is always regulated by and made to serve love and justice.

The Need for Discernment and Hopeful Engagement

In our currently polarized environment, Christians must demonstrate keen discernment and remain hopeful. They must distinguish cynical, nihilistic, and destructive voices from positive, hopeful, and constructive voices, and they must exercise good judgment regarding when, where, how, and with whom to engage. Unfortunately, not all who seek engagement on these issues act in good faith or seek genuine dialogue, and Christians should limit their engagement to those who are genuinely interested in constructive, good faith dialogue. Furthermore, Christians should remember that they have reason to hope, and they must resist the growing temptation to cynicism and despair.