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Sunday, September 2, 2007

Toward a "Super Liberal State"


By Calvin Woodard
Calvin Woodard, the Doherty Professor of Law at the University of Virginia, is currently scholar in residence at the Frances Lewis Law Center of Washington and Lee University.

''Critical legal studies'' is a term laden with emotional overtones and mystery. The general public has been introduced to it - obliquely, anyway – in The New Yorker, for which Calvin Trillin wrote a piece, ''The Law at Harvard.'' At fairly regular intervals The New York Times has carried stories – battlefield communiques, as it were, from Cambridge, Mass. C.L.S. lies at the root of wild rumors of departures from Harvard Law School and of a faculty too divided even to make appointments. Making the subject all the more intriguing, Paul D. Carrington, the dean of the Duke University Law School, proclaimed that C.L.S. law teachers are morally bound to resign, for it is immoral, at best, to profess to teach a subject, law, in which one does not believe. (Is it appropriate, he asked, for an atheist to teach theology? Or for someone who denies that sociology is a legitimate academic subject to be a member of a sociology faculty?) The movement has become a kind of latter-day bogyman. As such, it has its own appeal.
This much is generally known: The movement started sometime in the late 1960's or early 70's. Robert Gordon, a prominent member of the group from Stanford University, has noted how many law students during that troubled period were struck by the contrast between the law taught in the classrooms and the legal and ideological conflicts dividing the nation. The gap was too wide, and some sought a deeper understanding of the nature and role of law. As Roberto Mangabeira Unger notes in the last sentences of ''The Critical Legal Studies Movement'' with a cold, controlled anger that marks much of his work: ''When we came, they [the law professors] were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars and found the mind's opportunity in the heart's revenge.


These students took their inspiration in part from the teachings of the earlier ''legal realists'' of the New Deal era, who attacked the most sacred precepts of our legal system - that general legal principles (the common law) are embodied in judicial opinions, that by legal analysis the correct or dispositive legal principle can be discovered and that judges apply those principles dispassionately, free of political bias and personal prejudice. ''Mature'' jurists, legal realists insisted, should act creatively, imaginatively and intelligently to reach just results, and law schools should train their students not to be conventional parsers of bygone cases but to become active participants in that purposive process, law, by which society makes many of its most far-reaching and delicate decisions. In this sense legal decisions are really policy choices, and the legal realists insisted they should be informed by the best knowledge, legal or extralegal, and not based solely on the artificial authority of earlier cases.
The incipient C.L.S. members found in that message what was to become their own major premise -our legal system is really based on an indeterminate form of law. But they also learned from their own law school experience that legal realism had been defused. In the years after World War II, all kinds of legal thinkers had struggled to find ways to save law from the charge that it is really policy. Appeals were made to ''neutral principles,'' to the network of interdependences making up the legal process, to the ''inner morality'' of law and to the ''efficiency'' of ''the market,'' as well as to the concept of ''law as a system of rules,'' an idea imported from the University of Oxford. All aimed at taming the anarchy inherent in legal realism. And they succeeded. By the 70's legal realism had been largely reduced to a chapter in American legal history. THE leaders of the new movement looked farther afield as well. Following the legal realists' example, they turned to the European continent. Very possibly the three most formative ideas in American law during the first half of the 20th century came from the Continent, especially Germany, largely through the medium of Roscoe Pound, the influential dean of Harvard Law School - the notion of ''sociological jurisprudence'' (developed by Eugene Ehrlich), the notion that law was created and given purpose as a result of struggles between different interests (an insight that led Pound to the idea of social engineering, derived from Rudolf von Jhering and Josef Kohler) and the idea of a law-based welfare state (stemming from the politics of Bismarck and the jurisprudence of Rudolf von Gneist). But since such ideas were developed, the great universities and institutes of Europe had fallen prey to fascism; the enlightenment of the 19th century culiminated in the Third Reich - one of the unholiest paradoxes in human history. Many scholars wondered how virtuous learning could lead to such unspeakable evil. Two Germans, Max Horkheimer and Theodor Adorno, asserted Continued on next page in their powerful book, ''The Dialectic of Enlightenment,'' that Western thought took a wrong turn in the 18th century and everything since has led us farther along a misguided course of crass materialism, wicked exploitation and dehumanizing social behavior.
Since the 30's Continental scholarship had been involved in a massive re-examination of capitalism (through the neo-Marxism of Isaac Bulbus and K. Offa), the role of literature (Georg Lukacs and Mikhail Bakhtin), the structure of social institutions (Michel Foucault and Claude Levi-Strauss) and the nature of art (Herbert Marcuse and Sir Ernst Gombrich). This huge body of serious scholarship was a fertile source of inspiration for young American lawyers disillusioned by the state of their own nation and the sterility of legal education. Very probably they derived the term ''critical'' from the ''critical theory'' associated with the Frankfurt School. IT would be a terrible mistake to equate the critical legal studies movement solely with the troubles at Harvard, for it has followers in many law schools. It is also a movement that appeals to many nonacademic practitioners, who as poverty lawyers, public interest lawyers and public defenders know all too well the seamy side of our legal and political system. The following of the movement must number in the hundreds and very likely in the thousands. The legal literature it has spawned is huge; a few years ago the Stanford Law Review dedicated a 600-page issue to it that is probably still the best single collection of comment, pro and con, on the subject.
Mr. Unger, who teaches at Harvard Law School and is widely regarded as the intellectual leader of the movement, now offers the public a short manifesto he describes as ''more a proposal than a description.'' It is an ambitious and impressive undertaking. It also defies summation. It is a carefully crafted statement with ideas interlocked like a chain-link fence that stretches as far as the eye can see. And the full purport of his message can only be appreciated by an attentive reading. Even so, five themes seem central to his argument: There were two distinct stages in the role of law in Western societies before the modern era. First it served to establish and defend social hierarchies and social class divisions. Toward the end of the 18th century, however, it was put to the revolutionary task of protecting rights of individuals irrespective of their social rank or class. In this country the founding fathers relied on democracy (created by our public law, the Constitution) and the market (fostered by private law, notably contract) to give form and limits to those rights.
By the 20th century the context in which American law operated had drastically changed. Social arrangements sanctioned by law had come to include an array of hierarchies of economic power and pernicious social distinctions protected as rights by the very legal system created to establish individual freedom and equality. The politics of democracy and the blind forces of the market proved woefully inadequate to govern a society increasingly dominated by modern science and technology. Hence there is a compelling need to restructure our social order to make it compatible with freedom and equality.
The way to accomplish this reconstruction, according to Mr. Unger, is not through classical revolution of the kind Marx advocated, brought about by an alliance between disaffected elites and the downtrodden. Rather law must be reinvented to give it a revolutionary new purpose: to lead the dismantling of the various hierarchies of power and privilege that through perversions of the legal process have come to threaten the higher values of our society.
Law so conceived becomes the means by which society can once again be transformed as it was in the 18th century through the discovery of rights. C.L.S. lawyers are urged to make use of the legal process to wage a strategic campaign of ''constructive dissidence'' calculated to render ''each crucial feature of the social order effectively visible and vulnerable to controversy, conflict and revision.'' Such a campaign would spotlight the gulf between the reality created by the existing social order and our national ideals. And that awareness would stimulate in the public generally a kind of ''creative negativity'' that would be the source of the insight and imagination necessary to build a new social order closer to the ideal.
The overall goal of C.L.S. is to remove the constraints and hindrances imposed on individuals by unjust social hierarchy and class, enabling them to develop a new sense of self and to give full and free expression to their innate intelligence and imagination. To Mr. Unger, liberated individuals endowed with dignity, self-respect and equal opportunity are the highest hope of humankind.
Collectively, a society of such people would make up a new form of ''empowered democracy'' in which all social decisions would be regarded as political ones - in the sense that they would be made by open, rational deliberations of the people, not handed down by judges wielding a semimystical form of law masquerading as politically neutral.
Mr. Unger envisions, in his words, a ''super liberal state'' in which individuals - making up a true democracy representing all the members of society - govern. That is possible, however, only if we use law (through C.L.S. strategy) to bring about the change. So long as individuals are born into and grow up in a world of social hierarchy and class, the realization of the values of equality, dignity and freedom is an impossible goal. By changing the shape and policies of social institutions, however, it is possible to create a world in which those values are realized, for the members of society tend to internalize the values embodied in its major social institutions. (A more modest aim of C.L.S. is to bring about changes in the institutional hierarchies that reproduce inequality.) The actual shape of the future Mr. Unger is willing to leave to the members of the liberated and egalitarian society.
He is an optimist about human nature. He refuses to believe human beings are inherently brutish in the Hobbesian sense; he puts his faith in the power of responsive, civil and humane social institutions to mold a new kind of mortal, and he looks to law to bring about the preliminary institutional reconstruction. But at bottom he may depend on the very determinacy of law he so deplores – on judges who will follow the legal tradition rather than politics. For not all judges will agree with his politics, and without the restraints of the legal tradition, they would undoubtedly thwart his carefully designed campaign. Ultimately his hopes, like all of ours, depend on a dispassionate judiciary.
To his credit--and that of the C.L.S. movement generally--Mr. Unger pursues questions that must bother every serious legal scholar: What, exactly, is so special about law? What if law is made by human beings for human purposes? So what? Can it be otherwise? Should it be? Are we better off unmasking law as just one form of political power? Or should we, as Plato suggested, condone ''pious lies'' for the public good? Jerome Frank, the old legal realist, asserted that ''if we cherish democracy, we must not tolerate that sort of deception of the public 'for its own good.' '' Mr. Unger goes farther. He believes the truth will lead not to chaos but to the creation of a world of liberated citizens, restructured social institutions and true democracy.
Whether one agrees with Mr. Unger and C.L.S. or not, one cannot fail to be impressed by his high idealism and intelligence. I believe, however, that he and his followers weaken their cause by adopting the style of Continental philosophy. The legal problems of the common law system are real enough to be discussed in the language of the Anglo-American legal tradition. His tendency to describe those problems in terms more at home in Hegel's ''Phenomenology of Mind'' than our legal system not only blunts the point, it positively repels many readers who never mastered the style of philosophical idealism. Even worse is the idea that 19th-century lawyers and judges can be categorized as formalists and objectivists. Maybe that is what they were. But I distrust philosophy posing as history, because it dehumanizes the past, reducing all experience to theory. The light-verse writer E. C. Bentley once explained that ''geography is about maps'' and ''history is about chaps.'' I rather agree. While law and legal history include theory, neither one is only about theory. THIS book is tough going but not, as one might expect, for reasons of style.
It is written clearly, powerfully and on occasion eloquently. The difficulty is the content. Mr. Unger forces one to think afresh about the law, a subject on which most lawyers already have their own views. John Maynard Keynes long ago noted that few people learn anything new after the age of 30, and I, being well past that magic age, have found the book a major travail. I fought every page, resisted every insinuation and denied every assertion. In the end, however, I put the book down with enormous respect -and ineffable sadness, for I suspect it will be read mostly by the converted and others will not bother. As a result, a whole generation of older readers will miss out on a book that very probably will have enormous influence on the younger generation of law students.
Calvin Woodard, the Doherty Professor of Law at the University of Virginia, is currently scholar in residence at the Frances Lewis Law Center of Washington and Lee University.









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