Critical Legal Studies in America

Contents:
Legal Realism
Marxist Legal Theory
Critical Legal Studies
Post Modernism

LEGAL REALISM

The origins of critical legal studies are to be found in the American legal realist movement of the 1930s. The underlying contradictions of american democracy were revealed by the worst economic crisis in american history. The reactionary jurisprudence of the US supreme court led President Roosevelt to attempt to "pack" the court. US Supreme court justices enjoy life tenure and cannot be removed from office. However the US constitution is silent as to the number of justices. Since Roosevelt could not remove the justice who's constitutional interpretations were undermining the relief policies of the New Deal (a program to install a modest welfare state in america) he attempted - unsuccessfully - to appoint many new judges.

While the President's attempts to "pack" the court (perfectly legal though unorthodox) failed his message did not. After the court packing incident the interpretations of the court became markedly less hostile to the exercise of federal power in the name first, of ending the depression, and then later of fighting and winning the second world war.

At the same time as these judicial maneuvers were going on - and in part because of them - a new school of thought arose in the United States knowns as "legal realism". Legal realism is the intellectual forbear of Critical Legal studies. The object of this paper is to discuss the relationship among legal realism, Marxism, Critical Legal studies, and post modernism.

Legal Realism proposes a simple yet radical alternative view of legal interpretation. Recognizing the arbitrary character of judicial interpretation, the multiplicity of possible interpretations, and the realpolitik of judicial appointed tenured judicial power, the legal realists stated, quite accurately, that natural law interpretations were in fact defective. This fact reveals positivist influences on legal realism. While legal realism is correctly seen as a "left" legal theory it in fact can be linked to the thought of the arch conservative justice Oliver Holmes. Holmes believed that law was nothing other than the power of the state to coerce behavior. And while Holmes thought was definitely conservative, his positivism represented a radical break in traditional judicial interpretation. Prior theories of interpretation, based on a natural law or natural justice theory of the eternal and unchanging nature of universal justice were, to Holmes, nonsense. However pure positivism replaces natural justice - a moralistic theory that states that all law to be valid and effective must be just - with natural law - that all law is in fact the law of the jungle.

The constant confusion of natural law (the law of the strongest) and natural justice (that only a law which is just can be effective) is one of the most glaring errors of naturalistic theory and explains in part why naturalist theory has been eclipsed by amoral theories which are proposed as purely scientific positivism but which are in fact only variants of Hobbes' theory of natural law - that the natural law is the law of the strongest.

Once the identity of natural law (as opposed to natural justice) and positivist jurisprudence is cognized many of the false debates which characterize twentieth century legal discourse are moved to their proper field - which is a debate between two naturalistic theories; natural law (Hobbes) and natural justice.

Since contemporary legal discourse consistently uses the inaccurate term of "positivism" so will we. However when we use the term "natural law" we are refering to the theory that law is effective because of force or the threat of force. Whereas when we use the term "natural justice" we will refer to the theory that law is effective only when just. Normative theories of natural justice then would be theories that propose that law should only be effective if it is just. While we do not propose to present the debate between theories of normative and positive natural justice such debates do exist and these are correct terms for describing this debate accurately and succinctly.

Returning to the question of legal realism, the legal realists percieved the positivistic nature of legal decision in fact. Legal realism also proposed that if in fact the judicial decision is only a subjective expression of a judges preferences and not an objective expression of "reality". To determine judicial decisions, rather than looking at law books, the legal realist would suggest looking at the class origins of the judge and the litigants. We will use the term class to refer to arbitrary but objective classification of persons according to wealth, race, gender, sex, religion, and sexual orientation. Class is and will be used by this author to indicate the set of the above mentioned classifications, despite the fact that in English class generally refers implicitly to economic class.

As well as introducing class based analysis to legal reasoning the legal realists also introduced psychological analyses. Rather than seeing the judicial decision as a logical and objective expression of truth, the legal decision was seen as a subjective rationalisation of a structure of class relations.

Because of the subjectivist strain of realist interpretation it is often dismissed or mocked as presenting a "breakfast table theory" - that the judicial decision is so subjective as to be the consequence of the judges indigestion.

Incidently the most well known realist is Karl Llewellyn though he had several contemporaries. Unfortunately Llewallyn's radicalism toned down in the post war era and his theories later became a mere affirmation of the american regimes legitimacy.

As we can see the class based analyses used by legal realism recurs later in legal realism and paralells Marxism. However since neither legal realism nor critical legal studies have overtly declared themselves to be neo marxist we shall analyse Marxism seperately in the following section. This schema of analysis is justified by the geographical separation of Soviet Russia though CLS and Stalinism were in fact co-temporal.

MARXIST LEGAL THEORY

Marxist legal theory is unfortunately largely ignored in American legal reasoning. This is hardly surprising though disappointing.

1) Antinomianism

The first principle of Marxist legal theory is a fundamental opposition to law. The law for a Marxist is a barbaric expression of state power and as such must be transformed Proletarian dictatorship is thus intended as a temporary condition to permit the reform of the capitalist class and to allow the state to evolve first towards socialism (collective ownership of the means of production) and then to disappear as it is gradually replaced by voluntary communism.

The teleological framework of historical materialism explains the limitations of Legal Realism. Legal realism could not explain where or why the society was going. Thus when the second inter imperialist war ended, the legal realists failed to realise that the temporary peace and prosperity was founded upon the slaughter of the unemployed. Legal realism failed to identify the historical dialectic which created it and thus disappeared.

2) Socialist Legalism

Socialist legalism is the theory that while laws are only temporary instruments directed to advance towards socialism they must for this very reason be interpreted objectively. The rule of law in the Soviet state was always subjected to the reasoning of dialectical materialism. The law can only be replaced after the evolution of the state toward communism. This evolution must be structured using law in order to avoid reactionary backlash and a recurrence of imperialism. Thus contextualized the Soviet state was based on socialist legalism, that is the rule of law.

The objectivity of the law and its interpretation explain another difference between legal realism and Marxism.

3) Criminal Theory

Marxist theories of law seem most effective in the area of criminal law. Late capitalist regimes fail to provide coherent rationales of their criminal systems. Wavering between theories of deterrence and retribution capitalist systems of criminology at best toy with the idea of rehabilitation. Arbitrary and unequal sentencing conditions, racism, and violence characterize capitalist penal systems. Further prisons offer cheap labor. As a consequence the American prison system is now the largest on the planet. Incarceration reduces unemployment statistics, offers cheap and exploitable labor (who cares if crooks are empoisoned) and provides jobs for construction, "security", and police accessories such as handcuffs. In other words their is big money in repression.

Marxist penal theory has a different rationnale. Rather than punish or exploit the criminal the object is to help the criminal to understand their crime and the antisocial character of their crime. Marxist penology correctly focuses on rehabilitation and reform.

In sum while legal realism succeeded in pointing out the systemic contradictions which plague capitalism it did not determine the correct sources of those contradictions and thus disappeared from roughly 1950 to 1970.

CRITICAL LEGAL STUDIES

The great depression was an example of the failure of capitalism. Business cyclicity led to mass unemployment and unrest. One consequence was legal realism.

The Vietnam war was also a major political upheaval. Here business cyclicity was less important. However the Vietnam war is an example of an imperialist war for raw materials : Vietnam produces oil and rubber. A more recent imperialist war can be seen in Iraq where in order to maintain access to petroleum capitalist economies waged war on the third world.

Both these crises illustrate a serious defect of capitalism: that it encourages wars for profit.

Just as the capitalist crisis of the 1930s led to legal realism, so the failed imperialist war in Vietnam led to Critical Legal Studies.

Critical legal studies starts where legal realism left off: rules are arbitrary and in fact the imposition of the will of one class over another. However it is more strident in tone. If legal realism is looking at symptoms in the judicial system of capitalist failures, critical legal studies is looking at the causes of those symptoms. In other words CLS looks somewhat neo-marxist.

An honest analysis will recognize that capitalism requires an industrial reserve army (Marx; Milton Friedman). Capitalist economies are cyclical (idem). Capitalism also requires wars to guarantee access to raw materials (Lenin). Capitalism also tends to ever larger concentrations of wealth known as monopolies (Marx). Capital tends to monopoly because of economies of scale, and examples of monopoly capital include Rockefeller's Standard Oil , and Gates Microsoft. Unfortunately Smith ignores cyclicity and monopoly. While Smith's competition theory may work in small scale semi feudal economies in large scale industrial economies it does not. This is not to denigrate Smith's genius in pointing out the increases in productivity resulting from specialisation and the mutually advantageous character of trade. Unfortunately Smith and Marx were not contemporaries and Marx seems only indirectly to adress Smith's theories. That said a marx revisionist could say that Smith understimates the power of technology to increase productivity. It seems that Marx believes that amplitude of economic cyclicity grows over time - which is simply untrue. However economic cyclicity seems inevitably part of capitalist economy.

So the question presented is "whither cls?". CLS can only present a truly radical critique of capitalism when it moves beyond mere trashing and starts presenting positive agendas for change. Currently most CLS discourse is negative: it opposes the existing system without proposing alternatives. These alternatives could be "economic" (interest free banks - which are the norm in Islamic states) or "political" (electronic democracy). However unless they consider the inherent problems of a for profit private enterprise economy their critiques will be ineffective. In other words, just as the great prosperity of the 1950s (and McCarthyism) effectively silenced legal realism so the great prosperity of the 1990s may have silenced CLS.

POST MODERNISM

How are the questions of the machinations of radical american legal theory pertinent to post modernism?

Post modernism proposes a world where all values are arbitary and thus where there is no objective morality. In so far as these ideas were proposed by David Hume (who believes that morality is simply a matter of personal taste) Saussure (the arbitary character of the sign), Nietzche (truth may not exist and is all too often merely fabricated), Willard Quine (who proposes that language is indeterminate for every term is defined in by some other term which I would describe as global circularity) and Gödel (some true theorems cannot be proven while some false theorems cannot be disproven, though there do exist theorems which are both true and demonstrable or false and refutable) they are in fact expressions of epistemological puzzles which have plagued modernity since the 18th century.

Post modernism can however distinguish itself from modernity in that the modernistic discourse since the industrial revolution centers upon productivity, "progress" and replication.

Since Marxist theory is not at all morally "neutral" or relativist, and since Marxist discourse correctly focuses on progress as a valid goal (since 3/4ths of the planet is ill housed and ill fed) Marxist theory cannot be considered post modern. This is really a shame for post modernism does offer the opportunity of proposing radical critiques of late capitalism. Specifically:

Post modernism gives a voice to the ordinarily voiceless!
(but then does not listen to that voice since "all opinions are valid, there are no universal values")

Post Modernism places all existing thought structures in question
(by the rejection of moral principles - which deprive the voiceless of real impact)

But for the reasons explained in the parantheses above post modern thought does not and cannot lead to a powerful critiques of the systemic causes of tragedies such as the great depression and the Vietnam war.

Post modernism's best hope then is to be a window for critical discourse which rejects the moral spinelessness which characterizes Hume and his heirs. The error of imperialist thought constructs is not moralism, but the wrong moralism.

Should anyone wish to debate the existence of universal moral principles let them ask themselves how they would react at the violent death of a loved one - say, in the interest of some multinational cartel's board of directors. If seduction and subversion are post modern tactics then marxists should (oh my! Normative disourse!) co-opt these tactics by calling into question the moral emptyness which characterizes relativistic discourse.

Marx even had a term for such emptyness and spiritual rape:
he called it "alienation".