当前位置:首页 >> 司法考试 >>

Critical Legal Studies


Critical Legal Studies: An Introduction to its Origins and Underpinnings
Mark Tushnet
These comments take on the task of explaining why Critical Legal Studies(CLS) forms an appropriate part of a jurisprudence course. Additionally, its provides an overview of what might be included in that part of the course. Material from CLS is already infiltrating the materials used in the first-year curriculum, and at least one prominent British text on jurisprudence has included a brief discussion of CLS in its chapter on American Legal Realism. As that discussion suggests, Legal Realism is one of the intellectual origins of CLS; the other is the progressive tradition in American historiography. In many ways CLS is a direct descendant of American Legal Realism, which flourished in the 1920s and 1930s and left an important legacy to all legal thought. CLS interprets Legal Realism along the following lines. The Realists offered a critical analysis of law as they saw it. At the time the Realists wrote, many lawyers, judges, and scholars seemed to think that they could draw on a relatively small collection of fairly abstract concepts—CLS has focused on “liberty of contract” and “property rights”—as the basis for decisions in particular cases. Results could either be deduced from the necessary meanings of the concepts or intuited from the social understanding of their meanings. The critical dimension of Legal Realism established that these assumptions were unfounded. The concepts were so abstract that they led to contradictory conclusion, and because of social divisions—between employers and organized labor, for example—there could be no broadly shared social understandings on which intuitions could properly be based. The second intellectual source of CLS is the progressive tradition in American historiography. Like Legal Realism, progressive historians, including Charles Beard and Vernon Parrington, argued that the best way to understand the course of American history was to pay attention to the play of interest groups in American society. Much of their work was devoted to debunking the claims of filiopietistic writers that the best way to understand the course of American history was as the working out of the idea of progress within a generally liberal political framework. The progressive historians looked at American policies and politics and saw much more of economic interest at work; for that they were, rather like CLS people today, called Marxists. In CLS the most important voice for the progressive tradition has been that of Morton Horwitz. Historians found Horwitz’s work entirely congenial—so congenial that they awarded his book their most prestigious professional award, the Bancroft Prize—because he told a story with which historians were familiar. He looked at antebellum courts and found that they were making decisions that, as he interpreted

them, promoted the advance of American corporate enterprise and industrialization. Historians had heard versions of this story before. In the late 1940s Louis Hartz and Oscar Handlin, for example, had written studies that made the same point. But while Hartz and Handlin had examined legislative policies and found that they promoted industrialization, Horwitz reached the same conclusion after examining judicial decisions. Unlike the historians, lawyers felt threatened by Horwitz’s story, and the reviews by lawyers were much more critical. The reason is that, for lawyers if not for historians, there has to be a difference between judges and legislators; otherwise the distinction between law and politics collapses. The role of the progressive tradition in CLS has been to support the general judgment that there is no tenable distinction between law and politics, just as the Realists’ critique of rules had argued. The general point of both traditions was to emphasize the importance of relations of power in the employment and development of law---what CLS has come to refer to as the importance of illegitimate hierarchy as an ordering institution in our society. The Realists made another important point, which was constructive rather than critical. They argued that deduction and intuition had to be replaced by explicit and fairly systematic policy analysis. This constructive program had three elements. First, decision-makers, whether judges, legislators, or lawyers advising clients, had to identify those social interests actually at issue in a particular controversy, and had to think about how those interests might be affected by the various courses of action that might be pursed. Understanding the consequences of legal decisions required studying the legal system, drawing on sociology and political science for organizing concepts. This study came to be called policy analysis, and it is now so widely accepted a way of thinking about law that forms for student evaluation of teaching routinely ask whether the teacher adequately explored policy issues in the course. Second, according to the Realists, although lawyers should abandon abstract legal concepts as the basis for decision, they should still pay attention to some important but nonetheless abstract social interests, such as promoting human freedom and material well-being. For while people might disagree about how those interests should be advanced and whether other particular values ought to be promoted, no one would disagree that these most fundamental values are important. Thus policy analysis could be grounded on these newly identified and broadly shared social understandings. The third element in the Realists’ constructive program was a method of legal analysis, the method of balancing. Once the precise interests at stake have been identified and their relation to the broad social values understood, decision-makes should balance the interests to arrive at an appropriate decisions. The Realists’ constructive program provides the framework for most legal thought today. Once need only read a randomly selected law review article or--perhaps a

better indicator of what we teach our students—a randomly selected student note or comment to find that the right answer to the question at issue can be found by balancing the interests identified in the appropriate three-part test. CLS accepts the critical aspect of Legal Realism but challenges its constructive program. Because it does so by using the critical techniques developed by the Realists, CLS is in this sense a true descendant of Realism. The way in which CLS is concerned with the political dimensions of law and domination can be explored by examining the CLS attack on policy analysis, balancing, and shared social values---that is, on the constructive program of Legal Realism. The CLS attack on policy analysis has focused on what is at present the most popular systematic form of policy analysis, law-and-economics. Law-and-economics attempts to identify that the most efficient solution to a legal problem is. That is, suppose we know how wealth is distributed in a particular society and the preferences of its members. Law-and-economics attempts to determine what rule will allow that society to achieve the most of what its members want, given the existing distribution of wealth. Everyone knows that many interesting questions are assumed away when law-and-economics takes the distribution of wealth as given. But its proponents claim that answers to many questions are insensitive to the distribution of wealth—there could be large changes in that distribution and no changes in the efficient rules—and that, in any event, if you care about wealth distribution, it is pretty silly to worry about tort or contract law rather than, for example, the tax system. CLS has attacked law-and-economics in a number of ways. I am not competent to evaluate the technical attack, but I can describe it: The legal system, through its rules of property, contract, and tort, creates a set of entitlements. These entitlements constitute the pattern of wealth-holding in the society. If you are trying to figure out what the efficient rules of contract law is, you cannot take the distribution of wealth as given, because the rule you come up with defines the distribution of wealth. A second line of attack is that economic analysis—and by extension policy analysis more generally—necessarily proceeds by making simplifying assumptions about the world. Law-and-economics has increasingly relaxed those assumptions to make the economic models more realistic. But as the realism of the models increases the conclusions that we can draw become weaker and weaker. The most sophisticated economic analyses end up where the Legal Realists began, with a list of things we ought to think about. The third attack on policy analysis is still more general. Legal rules, and the distribution of wealth, donot merely reflect individual preferences. To some degree the rules shape those preferences. Decision-makers must therefore ask not only “What can we do to provide what people want” but, “How will what we do affect what people want?” The Legal Realists’constructive program answered this question by offering its method of balancing. Sensible decision-makers, brought up in their society and

sensitive to its present desires and its aspirations, would be able to take into account everything that policy analysis identified and could come up with the right answers. Here CLS makes a simple point. In our society the class of decision-makers is not representative enough to provide the assurance the Realists wanted. Decision-makers are an elite, demographically unrepresentative and socialized into a set of beliefs about society and technology that skew the balance that they reach. The CLS challenge to balancing, then, is the claim that balancing is a social process that needs to be examined sociologically. The concern for sociological analysis of the actualexercise of power is one part of the legacy of progressive historiography. Sociological analysis inevitably raises political questions. For example, CLS argues that Realists did not go far enough in demanding a democratization of law and, notably, that neither the New Deal nor the present Democratic Party does so either. Concern for the politics of legal thought is even more evident in the most fundamental part of the CLS challenge to the Legal Realists’ constructive program. The Realists wanted lawyers to worry about how the legal system promoted broadly shared social values. Parts of the CLS argument here are simple applications of the Realists’ critical arguments: The social values are described so abstractly that they could justify any decision, and there is some disagreement even about these abstract values—consider the environmentalists’ challenge to arguments for increasing a society’s material wealth. But the more important part of the CLS argument goes deeper. CLS insists that the social values, on which there may well be agreement, are not valuable in some abstract and timeless sense. They are values because our society is structured to produce in its members just that set of values. But if that is so, the entire constructive enterprise collapses on itself, because you cannot think about altering legal rules to conform to a society’s values then those values are constructed partly on the basis of the legal rules themselves. Taken together, the CLS arguments are bound to be unsettling. If the argument about the social construction of values is correct, people who talk about radical changes in social organization are likely to seem at least weird and off-the wall. CLS tries to put into question the deepest values of a society: Because there is nothing timeless about those values, we might simply decide to abandon them. CLS might not be able to make much headway with these arguments were it not aided by developments in other disciplines such as philosophy and sociology, whose important thinkers have also argued that social reality is itself socially constructed. My reference to developments in other disciplines indicates where CLS goes beyond the progressive historians as well. Progressive historians tend to tell a story in which social and political developments were more or less strongly dependent upon or derived from economic developments; that is why they were sometimes called Marxists. In emphasizing economics they relied on the dominant methodological theories of historical knowledge available to them. These theories were quite strongly influenced by the model of the natural sciences and tended in the direction of a fairly

strong determinism. CLS has developed a critique of these versions of social theory which draws on the legacy of Legal Realism. One version of the critique is straightforward. Social theories attempt to provide systematic explanations of many aspects of the social order by drawing on a much smaller list of aspects that the theory identifies as fundamental. Virtually all social theories identify as fundamental some aspects whose definition requires recourse to legal concepts. For example, in its classical versions Marxism derives its conclusions from premises that involve statements about ownership of the means of production. Yet if, as Legal Realism showed, the concept of ownership, like all other legal concepts, if empty and meaningless—nothing can be derived from it. To the extent that social theories rely on legal concepts, they cannot find the explanations that they seek. The second version of the critique of social theory goes beyond the perhaps accidental fact that most social theories use legal terms. It applies Legal Realism to the effort of social theorists to provide “law”-like explanations. Stated most abstractly, Legal Realism established that particular conclusions—outcomes in cases—could not be derived from general concepts—rules of law. It did so by showing, in example after example, that however one defined the general concepts, a critic could derive contradictory conclusions by, for instance, exploiting ambiguities in the concepts or drawing on other concepts that could not be kept out of the discussion. These analytic techniques can be used to develop a general critique undermines social theory. Taken as a whole, the CLS challenge to social theory suggests that the initial effort to provide a general theoretical account of how domination occurred was misguided. At present, CLS takes the position that no such general account is available. All that we can have are examples of how domination occurs in particular settings. This critique of social theory has a number of consequences that I will discuss presently. For the moment, the point I would like to make is that, just as progressive historiography and Legal Realism fit into the available discourses in other disciplines in the 1930s, so CLS fits into the discourses current today. The critique of rules, and more particularly the critique of current today. The critique of rules, and more particularly the critique of social theory, has strong affinities to discussions of method in the philosophy of the social and natural sciences, as well as in various disciplines in the humanities. I turn now to description of the current state of CLS. First, however, I must interject a number of qualifications.CLS is a developing body of thought, and it would be unsound to attempt to freeze it with an absolutely precise description. Further, different participants in the effort to push CLS ahead have different opinions, and as one of the participants, I have my own views on matters in controversy. One issue should be mentioned, only to be put aside. It seems to be a standard line in

statements by critics of CLS that CLS has no constructive program. As I will indicate at the conclusion of these remarks, there is a deep sense in which that is correct. But in the superficial sense that these critics appear to intend, their comments are simply wrong. CLS offers many proposals for alternative programs. These proposals run from the mundane, such as William Simon’s suggestion that a random selection of welfare determinations be automatically subjected to review on appeal, to the grandiose, such as Roberto Unger’s description of various forms of public control over investment. I suppose that the critics’ point is that, though they can read these statements about what ought to be done, they cannot quite understand how those practical proposals are related to the critical or theoretical dimension of CLS. Here I will give the short answer to this criticism and will devote the rest of my paper to explaining that answer. The short answer is that the point of the proposals is to continue the critique of existing society, not to get these particular proposals adopted in the short run. This position is, as I will now try to argue, related to ongoing discussions within CLS. To illustrate this relation, I will describe what is, or at least what was, probably the central debate within CLS. The early position in CLS was that one could say something systematic about the relation between legal rules and power—for example, we can say, though with many qualifications, that the legal system is tilted in favor of capitalism. So long as it is not bound by too many qualifications, that statement or some variant has a fairly obvious intuitive appeal. The dominant position responds by identifying—or perhaps more precisely by stressing more strongly than the early position—the difficulties inherent even in heavily qualified versions of the early formulations. Three of its arguments have been particularly effective. The first emphasizes the Legal Realist’s skepticism about rule, which made it impossible to say that “the legal system” is tilted in any direction at all: If decision-makers can in principle reach any conclusion they wish within the legal system, “the system” cannot be tilted, thought of course the decision-makers might be biased. The second argument is that no one has shown that any particular aspect of the legal system, or even the legal system as whole, serves the interests of capitalism better than do obvious alternatives including wholesale rejection of vast bodies of law. For any particular rule in the law of contracts in some state in the United States which might be thought to support capitalism, there is a precisely contrary rule, within an equally capitalist system. The final argument against tilt is that the legal system in fact has little direct impact on the maintenance of capitalism. It provides a framework within which bargains can be struck, and its rules are a sort of disaster insurance against unforeseen calamities. But it is difficult to see how an institution whose purposes are so limited could have much of systemic impact. These arguments have forced a reformulation of the early position. Agreeing that tilt could not be found systematically in rules of the legal system, the reformulation

argued that it is located in the construction of three categories used to organize legal thought and in the construction of the operations used to relate those categories. This seems to me the present state of the position: It claims an analytic program, but has not yet made much progress in demonstrating the program’s power. The renunciation of the theoretical dimension of the initial project of CLS helps explain an otherwise curious characteristic of recent critical legal scholarship. Although it devotes a great deal of attention to phenomena that occurred in the past, much of the work is relentlessly ahistorical. It focuses synchronically on particular moments in the past or offers a sort of comparative statics, but never gives a diachronic account of transformation over time. I believe that this ahistoricism is linked to the critique of social theory, because, diachronic accounts explicitly or implicitly rely on social theory to give them coherence. One tradition in the philosophy of history holds that narratives must draw on covering laws—the generalizations of social theory—of which sequences of particular events are specific instances based on identified initial conditions. Another tradition is less explicitly theoretical and claims only that historians proved narratives of past events. But the selection of the events that are placed in the narrative’s sequence, out of all the possible events that could be used, seems to require some (usually implicit) theoretical account, if only the common sense theories held by well-socialized readers of historical narratives. Having renounced social theory, CLS is barred/precluded from using these standard traditions of historical writing—thus its characteristic ahistoricism. Alternatively, one could provide a multitude of competing stories about how things changed, while insisting that none of the stories has the fort of epistemological priority that social theories gives to the narratives of the standard traditions. Or one could rely on the critique of social theory as a background against which only one account was offered, demanding that readers abjure the usual expectations they might hold about the epistemological claims implicit in such narrative. Either of these courses—the many stories or the one told with a raised eyebrow—could force readers consider what might be the basis for the critical legal scholar’s choice of stories to tell. And that would bring the politics of CLS directly into the discussion. The view of historical analysis that I have just sketched is implicit in much recent critical legal scholarship, but I believe that the body of work would be strengthened by explicit discussions of these issues. More often the issues have been taken up in the use of structuralist and deconstructionist methods. These methods lie behind much of the currently dominant practice. As soon as an analyst offers a systematic explanation of something, the dominant strain in CLS decenters the explanation, rearranging the terms and categories used in the explanation to demonstrate that the reorganized explanation is just as good as the original one. This decentering project has no termination.

The use of deconstruction has developed its insistence that general socialtheoretical explanations are unavailable into the position that all one can do is provide minutely detailed maps or descriptions of phenomena. At this point the open question for the dominant view arises. In general, though it has abandoned the search for social theory, it has not abandoned the view that social power (illegitimate hierarchy) exists. Somehow the detailed descriptions are to reveal how power actually operates. They do so not by invoking social theory or covering laws, but by educing, in an essentially intuitive way, understanding out of the reader’s immersion in details. But we need to ask, how is this understanding supposed to emerge? One possible answer is that the dominant program does not really aim at understanding in the usual sense. Rather, this view maintains, proponents of the dominant program have made a strategic judgment that in the present circumstances their political goals are more likely to be reached by using deconstructive methods. This view breaks the connection between the analytic program and the politics of critical legal studies. A second possibility is that understanding merges because of the essentially literary techniques used by those presenting the detailed descriptions. It might be that these techniques operate in a sphere epistemologically distinct from that in which social theory if thought to operate. If so, the emptiness of social theory need not imply that we cannot gain knowledge via deconstruction. A third possibility, and the one that I believe many critical legal scholars would prefer to pursue, is that we can analyze the ways in which intuitive understanding emerges from detailed descriptions. The anthropologist Clifford Geertz has argued that all knowledge is this sort of “local knowledge.” But neither Geertz nor anyone who has appropriated his terminology has done much to explain the sense in which “local knowledge” is knowledge. The effort to do so seems sensible for two reasons. First, we know that people sometimes have different intuitions about a particular problem, and we ought to be curious about how and why intuitive understandings are sometimes shared and sometimes divergent. Second, the analytic effort may be required by the CLS emphasis on domination and illegitimate hierarchy. These terms have normative connotations that suggest any accurate understanding of hierarchial situations would refer to domination. But that judgment plainly needs some sort of defense. One line of defense, which appears in some works, is to rely on an essentially romantic view of human nature. Joseph Singer, for example, counters hard-nosed views that “what people really like is doing horrible things to each other” with the sensible response that they “do not want just to be beastly to each other….They also want not to harm others.” The difficulty is that as Singer pursues his analysis, he forgets the implication of the “not just” and “also”; in other words, he forgets that people do indeed sometimes want to be beastly. What to those on the bottom is an

illegitimate hierarchy is to those on the topa perfectly sensible one. The romantic view of human nature denies that anyone could hold the latter belief in good faith, but, in the absence of a fairly elaborate late Sartrean exposition of the concept of bad faith, the denial is unpersuasive. A second line of defense for judgments about domination can be called strategic silence. Gary Peller's analysis of the reification of consent in the law of rape provides a useful example. In a standard deconstructive analysis, Peller argues that the concept of consent can be applied in particular settings only by "constructing the context which is supposed to provide the groundfor representing the event," a course that "promises total circularity.” Peller's aim is to demonstrate that the use of consent as a defense in the law of rape projects "the ideological message…that consensual sexuality is consistent with male domination in society."But it should be clear that the same analysis could be used to explain what might be called the Maileresque assessment that female domination requires men to engage in sexual behavior that society creates to be coercive. The technique of deconstruction, that is, cannot in itself support the political conclusions implicit in the use of the term "domination" as applied to particular arrangements. Because the political open-endedness of the deconstructive technique is so obvious, the silence about it in the CLS literature should be understood as strategic, designed to place on the table the political judgments implied by any use of language. But strategic silence only raises the political issues; it does not explain why one ought to adopt the feminist interpretation of consent and reject the Maileresque interpretation of coercion. This fact suggests that the idea of strategic silence could be extended. The extension would hold that there is nothing beyond that silence, that the process of decentering our understandings is indeed interminable. One offers the feminist interpretation of rape because one has made a political judgment that in our society congealed forms of domination are more likely to be broken up by that interpretation 'than by the Maileresque alternative. But that is an ungrounded political judgment, open to discussion and alteration as times, circumstances, and understandings change. The critique of social theory thus replaces one form of political analysis with another. Instead of having political positions flow from social theory, the dominant CLS project simply takes political positions. But not just any political position. The politics of the dominant position is the politics of decentering, disrupting whatever understandings happen to be settled, criticizing the existing order whatever that order is. Some CLS proponents are attracted to small-scale decentralized socialism.But that attraction must be understood as the embodiment of a critique of large-scale centralized capitalism. It cannot set forth a permanent program, the realization of which would be the end of politics. In fact, in a socialist society, the critical legal scholar would criticize socialism as denying the importance of individual achievement, and decentralization as an impediment to material and spiritual achievement. Roberto

Unger captured this dimension of the irrationalist project in his description of destablization rights, "claims to the disruption of established institutions…that have…contributed to the very kind of crystallized plan of social hierarchy and division that the entire constitution wants to avoid." With all this in hand, we can in conclusion turn to the implications of the critique of social theory for the future of CLS. Of course the Legal Realist analysis of rules will continue to be used; the legal academy's commitment to the coherence of rules is strong enough to require repeated assaults. It might be useful as well to develop detailed analyses of how law and beliefs aboutlaw are implicated in practices of domination and liberation, but the institutional impediments to sustained empirical research by legal academics are so substantial that it is unlikely that critical legal scholars will produce much along these lines. I should mention too that one part of the future of CLS is its continued institutionalization as part of the pluralist intellectual world of the legal academy. It now seems to be a more or less standard practice in symposia and workshops to include someone from CLS, or at least to feel bad if you do not manage to round one up (or if you willfully ignore them.) But the most important implication of the dominant CLS analysis is that any critique of the existing order is consistent with the project of CLS. Statistical studies, casual empiricism, classical social theory, the most old-fashioned doctrinal analysis-all might be critical legal studies so long as three conditions are met. First, the work should not be defended on grounds that suggest that something more enduring than interminable critique might result from following it through. Second, it must be designed as a critique rather than as a defense of the existing order-or of a slightly modified version of the existing order that, once modified, would be the end of politics. Finally, the work should actually operate as a critique. Perhaps the program of interminable critique swallows itself. If it is widely accepted, people may at first resign themselves to their inability to transcend critique. But they may come to see that that inability is itself transcendent, creating a new form of life in which the terms on which critique must proceed today have become unintelligible. I would like to close by elaborating this point about interminable critique. I will do so by describing one of the more controversial CLS arguments, which has been called the critique of rights. According to this argument, it would seem that we could abandon such valued rights as the constitutional protections our society gives to free speech and to the antidiscrimination principle. The CLS argument has two parts. The first applies the critique of legal concepts to the concepts embodied in these ideas about rights. Here the critique argues that the rights are defined on too abstract a level to be helpful in resolving the claims presented in particular cases. Nor will recourse to underlying values or to a balancing process help, for reasons I have alreadyreviewed.

This aspect of the argument is not unusual or, in itself, particularly bothersome, because it relies on positions for which the Realists were thought to have adequate answers. One person to whom the critique of rights was described reacted by calling the world that it depicted "Kafkaesque." According to the critique of rights, people cannot know what rights they have, and there are no political methods that guarantee those rights. The term "Kafkaesque" is perfectly appropriate and provides a clue to the justification for the constructive program-or for the program of interminable critique. For by invoking Kafka's vision, the term allows CLS to say that it, like Kafka, is describing the condition of the modern world. Those reared in, or attracted to, premodernist traditions may well find the world so described quite distasteful. But the point of modernism is precisely that that is just the way things are these days. CLS is thus the form that modernism takes in legal thought. Like modernism in philosophy and sociology, it displaces settled understandings, insisting that whatever we have is something we create and recreate daily. As a form of modernism, CLS argues that our lives are structured by institutions that we create and sustain, and that our lives have no meaning outside those institutions and the processes by which we create them-and create ourselves. So, in part, the CLS program is justified in the way all modernist programs are: The program consists of shattering congealed forms of life by showing that they have no particular integrity. And whatever makes that demonstration effective-utopian yearnings, close analysis of legal texts, concrete proposals-is part of the program. Perhaps this analysis could be continued indefinitely. But if the CLS critique is interminable, this article is not.


相关文章:
更多相关标签: