May 1, 1988
Near the beginning of the Reagan era, I overheard a conversation in a Harvard cafeteria among a group of economics graduate students. One of them, a good-hearted sort, was trying futilely to convince his peers that the Reagan program of business deregulation, anti-unionism, and regressive income redistribution would devastate working people and the poor without restoring the long-term health of the economy. Finally a boy genius, destined to become full professor at Harvard around the age of 30, interrupted with a mixture of irritation and condescension. “Oh, come on. You know that market solutions are more efficient.” End of discussion, more or less.
Mark Kelman has evidently over heard similar conversations. “Some of us in Critical Legal Studies, perhaps wrongly, have been preoccupied with the fear that many of the students who pass through law school feel sympathetic to progressive goals, but can most comfortably argue right-wing economistic politics, as if the case for a private property scheme with considerable faith in undisturbed markets has been convincingly made.” We all know that same sinking feeling: faith in the superior efficiency of competitive markets, and in the venerable equation of private property with political freedom, undoubtedly seems to most people (no doubt even to many of us, in some moods) like plain common sense. One virtue of Kelman’s new book, “A Guide to Critical Legal Studies” is to give these right-wing arguments their due, to show how “common sense” came to be so common, while at the same time producing subtle and powerful counter arguments. If for no other reason, the book would be admirable for its fine restatement of the mutual dependence of egalitarian sentiment and intellectual rigor: “Resuscitating the near-instinctive sense of outrage at gross inequality, selfishness, and the glorification of anti-communitarian exclusiveness requires faith that efforts to rectify these injustices are not, a priori, fanciful and unreasonable. ...We [need] to overcome this separation between mind and spirit, to show that the rationalistic claims for resignation are, quite simply, overblown, manipulative, and false.”
Unfortunately, Kelman very nearly overdoes the rigor. “A Guide to Critical Legal Studies” is a fiercely abstract, formidably difficult book. It is hardly the ideal introduction for the non-professional; still, it’s worth the effort to try to follow Kelman’s intricate, roundabout, legally learned arguments. For in the end, he makes clear—not vividly, starkly clear, but just clear enough—the deep connections between prevailing legal theories and popular attitudes toward authority and autonomy.
Essentially, “Critical Legal Studies” (CLS) is a critique of liberalism. It is not a practical, programmatic critique of currently embodied liberalism, however: not a matter of exposing class bias in the tax or criminal codes, of demonstrating racial bias in capital punishment or patriarchal bias in the welfare system. (Indeed, as Kelman notes, empirical evidence for these last two propositions is thin and ambiguous.) Primarily, CLS is interested in law as legitimating ideology; so it is liberalism as political philosophy—the moral and political philosophy of the modern age, which has shaped the deepest conceptual structures and self-images of Anglo-American legal culture—that CLS is out to engage with.
As a political theory, liberalism is systematically ambivalent. In its historically dominant version, it holds that maximum individual autonomy is the highest political good; that value preferences are purely subjective and arbitrary, hence none is more worthy of encouragement through social policy than any other and that individual behavior is largely intentional rather than deterministic, so that people may justifiably be rewarded or punished for their actions, rather than seen as products of their upbringing and social environment. But each of these elements has a dialectical counterpart: that embeddedness in a supportive community is the highest good; that some desires are healthier or higher-order or more natural than others; and that heredity and environmental influence frequently, if not invariably, determine behavior.
This philosophical ambivalence is reflected in a systematic tension within the law: i.e., between rules and standards, the two main forms of legislation. Rules are precise and allow for a minimum of interpretation (e.g., “motorists must always observe posted speeds and stop at red traffic lights”). Standards are flexible and allow for maximum interpretation (“motorists must exercise reasonable caution at all times”). Both forms have disadvantages: shouldn’t it be permissible to go through a red light on a deserted street at 3 AM? And what if a judge or jury takes a dislike to a defendant—isn’t the open-endedness of “reasonable caution” practically a license to indulge their prejudices? This is an elementary example; Kelman provides dozens of more interesting and complicated ones from contract law, property law, tort law, etc. “It is not possible, in fact,” he claims, “to conceive of a legal dispute in which the choice of form is not implicated.”
What is the significance of this “fact”? It is that the law is so full of quirks, inconsistencies, and ad hoc solutions because it must try to incorporate, while concealing, the secondary, non-individualistic strain of liberalism. The legal system must incorporate this version of liberalism, because the primary, individualistic version is too rigid, too brittle, to accommodate all of reality. But it must conceal this incorporation, because atomistic individualism is the moral and psychological underpinning of competitive capitalism, and the legal system must pretend to enshrine it. To reduce an enormously complex phenomenon to a single strand: CLS, at least in Kelman’s version, is the exposure, in one area of the law after another, of the coexistence and contradiction of the two strains of liberalism, together with an explanation of what this discovery implies, not just for capitalism but for any conceivable social system.
What it implies—to simplify, once again—is that no comprehensive legal system can be neutral and consistent; that it is impossible to avoid some degree of paternalism and coercion; and that ultimately the only effective check on domination is not procedural but substantive, not an illusory fairness but rough equality of social power.
This is, in a way, a tragic conclusion; Kelman wisely and generously identifies a utopian element in liberal capitalist ideology. But even the good faith of the privileged is bad faith: they are self-deceived, however innocently, to their own advantage; the rest of us are deceived to our disadvantage. Echoing an earlier theorist of ideology—also a tragic thinker—Kelman concludes: “Ongoing attempts to reassert the coherence and comprehensiveness of doctrine, of whatever web of legal rules purports to describe social relations, are part of a collective effort to pacify and reassure us that we have been delivered from existential tragedy. Rules are the opiate of the masses.”