# The Critical Legal Studies Movement **URL:** **By** Andrew P. Clark **Published:** June 1, 1987 --- “The sound and fury are not, however, simply departmental politics, for on the scholarly front, CLS has been quite successful, and the movement is beginning to spawn large numbers of journal articles.” Legal education is in a ferment. The long-standing acceptance of legal positivism is being seriously challenged for dominance in the law-school curriculum. As recently as a decade ago, “the law” usually meant the sum total of actually enacted statutes and regulations, and the actions of judges that, like it or not, were fundamentally backed by force or the threat of force. Any hint of an underlying moral character — any “natural law” that explicitly expressed values to which the law should aspire — was ruled out of court by those who felt that they should concern themselves with what the law _is_, and not with what the law _should be_. Today, this perspective on the world is beset by objections from all sides. Besides the resurgence of normative, natural-rights theories in the law (to which I will return later), one of the most interesting new movements to challenge much of the received legal wisdom goes by the name of Critical Legal Studies (CLS). Its practitioners, often referred to as “critters,” in the Conference of Critical Legal Studies are largely law professors at elite universities, including Rutgers, Stanford, Georgetown, Miami, and, most significantly, Harvard. Three of the most prominent “elder statesmen” of the CLS movement — Duncan Kennedy, Morton Horwitz, and Roberto Mangabeira Unger — have all long taught and written at Harvard. Refugees from the New Left of the 1960s, Kennedy and the others object to what they regard as a system of legal education that simply perpetuates inequalities and reinforces unjust hierarchical arrangements. CLS is nothing if not controversial. In an article in the March 1984 _Journal of Legal Education_, Dean Paul D. Carrington of Duke Law School contended that professors with an orientation toward CLS have “an ethical duty to depart the law school” because of the effect of their cynicism about the law. The Federalist Society, a national organization of law students, together with one of its campus chapters, the Harvard Society for Law and Public Policy, sponsored “A Discussion on Critical Legal Studies at the Harvard Law School” at which Professor Paul Bator (who later gave up his tenured post at Harvard to move to the University of Chicago) announced: “Since the late 70s, it is my sad opinion that CLS has had an absolutely disastrous effect on the intellectual and institutional life of Harvard Law School.” > The sound and fury are not, however, simply departmental politics, for on the scholarly front, CLS has been quite successful, and the movement is beginning to spawn large numbers of journal articles and books. The sound and fury are not, however, simply departmental politics, for on the scholarly front CLS has been quite successful, and the movement is beginning to spawn large numbers of journal articles and books. Roberto Unger, one of Harvard’s founding trio and a well-respected social theorist, has just published his major work on the law: _The Critical Legal Studies Movement_ (Cambridge, Mass., 1986), based on an earlier, lengthy article by that title, which appeared in the _Harvard Law Review_ (Vol. 96 \[1983\]). His two major earlier works, _Law and Modern Society_ (New York, 1976) and _Knowledge and Politics_ (New York, 1975), also deal with his view of the law, but concentrate on broader concerns such as ethics, the theory of knowledge, and liberation theology. The first anthology of work by Critical Legal Scholars was a book entitled _The Politics of Law: A Progressive Critique_ (edited by David Kairys, New York, 1982), followed shortly by the “Critical Legal Studies Symposium” in the _Stanford Law Review_ (Vol. 36 \[1984\]). Another very good collection of essays on this topic, though not exclusively or even primarily devoted to CLS views, is the issue of the _Yale Law Journal_ titled “Legal Scholarship: Its Nature and Purposes” (Vol. 90 \[1981\] pp. 955-1296). What, exactly, is it that inspires both the outrage at and the energy behind the Critical Legal Studies movement? The CLS approach emerges against a background formed by two significant intellectual movements. One is the legal realism movement. Active during the New Deal era, legal realists were highly skeptical about claims for logical reasoning and suggested that a judge’s socioeconomic class was more likely to determine his decision than neutral principles. A note entitled “Round and Round the Bramble Bush: From Legal Realism to CLS Scholarship” (_HLR_, Vol. 95 \[1982\] pp. 1669-1690) asserts that many of the CLS scholars of today “locate the genesis of today’s crises in the Realists’ legacy and see their task as the continuation of an abandoned Realist project.” But the affinity between these two approaches can be overemphasized. The note continues: “While the Realists used analytic critique selectively, to discredit existing dogmas and suggest specific avenues of law reform, the CLS scholar is more concerned with the entire framework of liberal thought. He exploits the ‘tension between normative ideals and social structure’ and the repercussive effects of a belief in liberalism’s particular articulation of boundaries between self and community, fact and value, civil society and sovereign.” The reason for this larger, “total critique” may be due to the other, and in my opinion, more significant, progenitors of CLS. While there is no single body of theoretical ideas to which the critical legal theorists as a whole would subscribe, they have been influenced, variously, by the Frankfurt school and by structuralist and poststructuralist thought, movements that have been especially influential in the teaching of English, literary theory, and sociology. Two interests that are widely shared by adherents to these movements are holistic or nonindividualistic forms of explanation in the social sciences, modeled on Saussure’s work in linguistics, and the “deconstruction” of the conscious rational agent by the invocation of various forms of reductionism. A strong statement of this view is found in T. C. Heller’s article, “Structuralism and Critique” (_Stanford Law Review_, Vol. 36 \[1984\] pp. 127-198), where he states, the “account of the subject is fundamentally reductionist” and refers in this connection to “semiotics, psychoanalysis or historical materialism.” Jerry Frug, a professor of law at Harvard sympathetic to CLS, discussed the connection between these new innovations in literary theory and law in the February 16, 1986, _New York Times Book Review_: > “A growing number of lawyers, however, see law not in terms of its stability and predictability but in an endless process of interpretation, reinterpretation and counterinterpretation. They assert that interpreting law always engages people’s passions and politics as well as their reason. They do not consider legal decision making simply ‘subjective.’ They think a reader of law is as much a prisoner of conventional political and moral views — and is as able to transform them — as any other reader. They consider law not as separable from the rest of social life but as a product of, and a contributer to, the way we understand ourselves and our society.” Cass R. Sunstein bravely attempts to summarize CLS in his excellent dual review of _The Politics of Law_ and the late Lon Fuller’s _Principles of Social Order_ (_Ethics_, Vol. 94 \[1983\] pp. 126-135), CLS’s main tenets include these beliefs: First, there is no such thing as distinctively legal reasoning. As Duncan Kennedy writes in “_Legal Education as Training for Hierarchy_”: “There is never a ‘correct legal solution’ that is other than the correct ethical and political solution to that legal problem.” (Kairys, p. 47) Second, the law and the state cannot be understood as operating independently of social relations and history. There is no “Archimedian point” from which a judge can view disputes before him and rule with objectivity on them. In other words, the law has no privileged status independent from its role in the fabric of daily life. Third, legal doctrines serve and legitimate the class interest of those with political power. As Sunstein summarizes: “_The historic function of the law_ has been to protect existing social and political structures, a task accomplished by obtaining the consent or acquiescence of the lower classes. Such consent derives from a perception of the autonomy and legitimacy of the legal process, which depends in turn on the myth that the law is neutral and objective in nature.” Finally, the legal system of the United States rests on a false understanding of democracy. Sunstein writes: “The legal system purports to promote democracy through protecting the right to vote and the traditional freedom of expression; but those rights do not allow for democracy in the private sector, where critical decisions are also made.” While Sunstein does not endorse this criticism, he has some interesting thoughts, which are worth quoting at length: > The central achievements of the movement consist, it seems to me, in the emphatic reminder that legal questions are often questions of political theory, in the effort to explore the underlying premises of legal doctrine, in the constant attack on the notion of a value-free legal science, and in the emphasis on the historical contingency of legal rules. All of those insights are useful correctives to much of what goes on in the courts and in legal scholarship. . . . critical scholars have attempted to reveal the ideological roots both of “interpretivism” in constitutional theory and of the normative dimension of the law-and-economics movement. Efforts to show the ethical vision that underlies legal doctrine have produced and should continue to yield valuable contributions to the study of legal system. It is precisely this insight — that law is fundamentally value-laden — that leads me to think that critical legal scholars are largely correct in their first and second criticisms above, but mistaken in the third and fourth. They are right on target when they assert that the methods of social coordination, management, and adjudication of disputes that nations turn to implicitly rest on standards of right and wrong, which often remain hidden and unacknowledged. But to the extent that they infer that this spells the end for any rationally justifiable system of rules, they are sorely misguided. Such an extreme skepticism about the law — or even the possibility of law — can find no way out of the dilemmas of ethical relativism, a doctrine to which CLS followers respond with varying degrees of ambiguity. Harvard Law Professor Clare Dalton sensibly takes on the charge of “nihilism” by saying that “people who believe in objectivity can’t see any alternative other than unbridled subjectivity.” But Mark V. Tushnet, a professor of law at Georgetown who is a leader of the CLS movement, sees no room for middle ground when it comes to legal interpretation: “There is no method of constitutional interpretation that allows some judicial review but at the same time limits its reach. Judicial review is an ‘all or nothing’ proposition. Either one allows judges to do whatever they want or one allows majorities to do whatever they want.” (“_A Symposium on Judicial Activism: Problems and Reponses_,” _Harvard Journal of Law and Public Policy_, Vol. 7 \[1984\] pp. 77-79). There is no room for law that transcends power or desire. Tushnet’s argument shows the strange affinity CLS has with judicial restrainers of the right, who also believe that judicial review is an “all or nothing” proposition. Consider the views of Professor Lino Graglia of the University of Texas, a foe of judicial activism who once encouraged residents of Austin, Texas, to resist a court order to desegregate public schools, and who was once considered for a vacancy on the Fifth Circuit Court of Appeals. Graglia does not believe the Constitution was designed to create or enforce rights, natural or otherwise. He recently told me that “the Constitution was not designed to restrain a system of government, and, happily, it prohibits very little. Much of what it prohibits is, I feel, a mistake. The Bill of Rights, which was added two years later, is not a very important list, but since it applies only to the federal government, it doesn’t get violated.” Hostility to civil rights and the First Amendment are not usually associated with a progressive legal mind, but Critical Legal Studies has found a natural ally in Graglia. As he explained to me, “Their view is, and I agree with it, that constitutional law has nothing to do with law — it’s just politics. They are perfectly right when they say that the Constitution does not actually prohibit any of these things that the courts hold unconstitutional.” He believes, in other words, that “insofar as the critters are legal realists and are pressing the \[legal\] realist line, I personally think it’s a healthy thing. Insofar as they are insisting that most law is bullshit, they are right.” Seen in light of their positions on judicial activism, the fourth CLS criticism listed above — that our legal system is insufficiently democratic — rests on an ambiguous understanding of “democracy.” Do they mean by this term a framework for political interaction, or unbridled majoritarianism? Both approaches — CLS and judicial restraint — seem to share the view (as Sunstein describes it) “that law, like politics, is simply a matter of arbitrary preference. The notion is largely Hobbesian: law is a struggle between self-interested groups for material and political advantage. Because the critical scholars suggest that law is only a struggle for power, \[their\] positive program is to use it in such a way as to take power from the powerful and give it to the powerless.” Randy Barnett of the Illinois Institute of Technology-Kent College of Law has, in “_Contract Scholarship and the Reemergence of Legal Philosophy_,” (_HLR_, Vol. 97 \[1984\] pp. 1214–1245) reached a similar conclusion: the Conference on Critical Legal Studies is actually quite reactionary in nature. “The CLS position borrows heavily from the realist tradition’s contention that legal analysis is, and cannot be anything other than, a smokescreen covering other motives for judicial conduct. In place of the now-unfashionable psychoanalyzing performed by the realists, the CLS analysis substitutes a neo-Marxist, materialist account of judicial behavior.” The reemergence of normative legal philosophy in the past fifteen years has provided a moral basis for law and hence undercut many of CLS’s (formerly) valid arguments about unprincipled and incoherent judicial reasoning. But even with the scholarship of such varied thinkers as Bruce A. Ackerman, Ronald Dworkin, Richard Epstein, John Finnis, George Fletcher, Charles Fried, and Anthony Kronman, CLS professors have largely avoided these, preferring “to direct their fire at nineteenth century legal thought and the law-and-economics approach.” As Barnett concludes, “The definitive showdown between the CLS group and the new normative philosophers has yet to occur.” > If the statement that law serves the powerful is true in every case, then it becomes simply an empty tautology. The third CLS criticism listed above, that the law simply serves political power and can do this only by feigning neutrality, is more complex because it is really several objections bundled into one. One might agree that laws often do serve the interests of those with the most political power or that many laws are unjust. When Congress passes legislation imposing tariffs and quotas on imported goods, for example, it serves the interests of the few, highly concentrated industries that stand to benefit from restricted competition. Who loses? Every consumer, by just a little — demonstrating that even though the overall effect on society is negative, the widely spread economic interests of the many are not powerful enough to overcome the concentrated interests of the few. But if the statement that law serves the powerful is true in every case (as many CLS advocates seem to think) then it becomes simply an empty tautology. If instead of passing, the tariff had failed, what sense does it make to say that the law serves only the powerful? Is everyone who buys shoes, clothes, or autos a member of the power elite? The assertion either fails to hold up in every case (in which the perversion of the law at least assumes there is such a thing as a law to be perverted) or it collapses into a truism, in which those who have power have power because they have power. CLS scholars, along with many “communitarian” critics of liberalism, often charge that liberalism’s claims on behalf of the rule of law, equality before the law, and abstract and neutral principles of law conceal a lack of commitment to any principles at all, that is, of total indifference to moral or value claims. More to the point, CLS scholars claim that the “myth” of neutrality conceals a bias in favor of certain classes over others, and that the alleged neutrality is a mere device to legitimate domination. One problem with this criticism is that it confuses at least two different kinds of “neutrality.” Take the right to freedom of speech and assembly clearly set forth in the First Amendment. Both pro-and anti-abortion groups are recognized as having rights to speak out, to organize, and to assemble peacefully, all in pursuit of incompatible goals. Allowing all such peaceful efforts — regardless of their “merits” — is a fair sense of the word “neutral,” and for the law to have any weight whatsoever it must apply in all cases. If CLS is charging that the law’s legitimacy depends on its equal enforcement, they are right. But if they are making another charge, that the law itself, and not simply its enforcement, depends on a myth of neutrality, that is, of total indifference to moral or value claims, one could easily respond that the First Amendment does indeed promulgate certain concrete values: among them tolerance, free inquiry, freedom of religion, and respect for others. One might argue in opposition to such values (freedom, tolerance, etc.) — and many critical legal scholars have, but they clearly are values, and battles about the legal system of which they are a part will have to be fought on the grounds of whether or not they are good or proper values. A basic flaw with the critical legal scholars is that they seem willing to work eclectically with theories that are incompatible. They casually invoke various “reductionistic” theories to call into question the idea of the acting subject as used by classical liberalism, while providing little evidence that these theories are true or consistent. More importantly, however, they flirt with ideas that question the status of all theoretical claims whatever, while seemingly oblivious to the fact that this would also apply to their own claims, including their criticisms of liberalism. This “performative inconsistency” lies at the heart of CLS and vitiates the validity of its claims. There is much that is stimulating and provocative in their writings: they exhibit interest in a whole range of ideas, and there is much in their work that might seem refreshingly tentative and undogmatic. But at a deeper level, a pseudo-unity is given to their work by a dogmatic and unargued attachment to political “progressivism” and to the assumption that (or so it would seem) anything may be entertained — provided that it is critical of the liberal tradition. What critical legal theorists have to recognize is that they cannot have their cake and eat it, too. They cannot undermine contemporary political life while simultaneously advancing a particular narrow form of it. _Andrew P. Clark is a senior in philosophy at Swarthmore College._