A Guide to Critical Legal Studies.

WELL-PLOWED FIELDS

A Guide to Critical Legal Studies

CRITICAL LEGAL STUDIES, the trendy New Left school of jurisprudence, is probably best known for the role some of its members played in the recent faculty spat at Harvard Law School. The actual substance of CLS theory, though, has remained rather hazy, hidden beneath bad-boy posturing and cloaked in insider jargon. Now Mark Kelman, a "Crit" professor at Stanford Law School, has provided a general overview of CLS scholarship. A Guide to Critical Legal Studies is a dry and often tedious book, but it does capture the main thrusts of the CLS challenge.

The central charge of CLS is that our legal system is "indeterminate"--in other words, that there are two sides to every case. Of course, the claim is pumped up with inflated language: "All rules," says Kelman, "will contain within them, deeply embedded, structural premises that clearly enable decision-makers to resolve particular controversies in opposite ways." However expressed, this is hardly news to the practicing lawyer.

Even among legal theorists, the Crits are tending a well-plowed field. Their charge of indeterminacy is just a rehash of the oft-made attack on legal formalism. Legal formalism, or "mechanical jurisprudence," refers to the misbegotten attempt to erect a science of law in which all results can be deduced ineluctably from a small set of neutral first principles. Its rationalistic pretentions were punctured by many before CLS, including the Legal Realists of the 1920s and '30s, and before them Oliver Wendell Holmes, who declared: "The life of the law has not been logic: it has been experience."

Though Crits admit that they did not discover the open-textured nature of the law, they claim that their explanation for this phenomenon is radically different from those that came before. According to CLS, indeterminacy results from fundamental "contradictions" that run like fault lines through liberal thought. (Crits consider "liberalism"--defined as encompassing everything from the libertarian Right to the New Deal Left--to be Public Enemy Number One.) To put it less dramatically, the pluralistic, liberal political order embraces varied and conflicting values, and the legal order reflects this diversity; thus its rules and principles cannot all be logically reconciled. And this is supposed to be a revelation?

There is, however, a radical motive behind all this pedantry. By pointing out "contradictions" and "indeterminacy" in the legal system, Crits hope to put a dent in the "legitimating" powers of the law. For neo-Marxist radicals, after all, capitalist democracy is a miserable, oppressive, and alienating system; it is therefore puzzling to them that so many people in the West seem so satisfied with their lot. One popular explanation is that ideology (and here, law in particular) can "legitimate" an oppressive system by inducing "false consciousness" in the people. Kelman advances a "cognitive" theory of legitimation, in which law dampens revolutionary ardor by limiting the capacity to imagine alternative social structures. Thus, the CLS project is to declare that the Emperor has no clothes, to break the spell of false consciousness.

In so declaring its mission, CLS reveals the facile rationalism of its thinking. Though they stand ready to deflate anyone else who puts on formalist airs, Crits unwittingly share the rationalist's premise. At the conclusion of all their talk about "contradictions" and "indeterminacy," the Crits deliver their verdict: liberalism and its legal system are "intellectually incoherent." That is, because traditional Western legal principles cannot be encapsulated in some logically hermetic theory, they are unworthy of support.

Like good rationalists, Crits are blind to the coherence that emanates from an actual, ongoing, popularly supported social order. Coherence, in this light, is a matter of enlisting the continuing assent of those who must live under a given rule. The Rule of Law, by ordering the affairs of men in reasonably predictable fashion, and in a way that comports reasonably well with common moral standards and aspirations, has met and continues to meet this test of practical coherence.

Though Crits are rationalists in their basic premises, they are too disillusioned to follow through. They do not believe in "scientific socialism" or any other Cartesian politics. Having seen through rationalism, but forsaken the Western tradition, where can they turn for the content of their radical utopia?

For lack of anything better, to raw emoting and daydreaming. At one point, Kelman talks about "resuscitating the near-instinctive sense of outrage at gross inequality, selfishness, and the glorification of anticommunitarian exclusiveness." Elsewhere he states: "The spirit of the anti-rights, anti-legalist approach is to abandon known distorting categories, to leap ahead, not fully aware how one will reconstruct the world." Kelman is not alone among Crits in his inability to articulate a concrete radical alternative; it is a trademark of the CLS law-review article to conclude a hundred-page diatribe with a couple of pages of vague and sentimental socialist mush. And so, with CLS, we witness the curious devolution of the radical Left--from social engineering to social encounter-group therapy.

It is understandable that Crits would want to reduce political discussion to gut reactions. Given the horrific record of real-life socialism in this century, any political inquiry based on reasoned argument from the facts could prove embarrassing. And so the radicals of CLS play it safe: castigating legalism with abstract, ivory-tower arguments, swooning over socialism with glandular enthusiasm, fomenting campus "revolutions." It may be great fun, but as scholarship, it's frivolous and irresponsible.