Robert Gordon – Law, ideology and critical legal studies

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What is CLS?

Critical legal studies (CLS) began in 1977, as a meeting of like-minded law teachers.  The group is critical of mainstream legal thinking, and has gained a foothold in Canada, the UK, Australia, Germany, and the USA.  The presence of CLS scholars has created bitter divides amongst colleagues at many law schools in these countries.  CLS adherents frequently have difficulty finding employment and often fail to be granted tenured positions.

CLS View of the Nature of Law

According to Gordon, while Marxist legal scholars see the law as a machine enabling the projects of the ruling class and liberal scholars see the law as a collection of “good” rules that are sometimes bent out of shape, CLS legal scholars claim that the law is a plastic medium that subtly conditions each person’s experience of the world.  These scholars hold that a person’s existence is composed of many common interactions with the law, which are referred to as legal discourses.  A legal discourse can be anything from interaction with the courts (a formal legal discourse) to the purchase of an item in a store (informal legal discourse).  All of these legal discourses imply constructed roles on their participants, and each role has different expectations of behaviour.  A CLS legal scholar would say that these artificial and arbitrary constructions divide the world into categories that define a person’s experience.

Gordon gives the example of sexual harassment.  Prior to recent times, this behaviour was deemed acceptable.  There was an expectation to tolerate some level of this behaviour for a person in the role of manager and a person in the role of employee.  However, fairly recently, this behaviour has been reclassified as unacceptable.  This has changed the nature of the roles constructed for the participants, which has completely changed the way the employers and employees behave.  The categories created for application to this legal discourse have fundamentally changed – in turn, changing the way those involved in the discourse will experience the law.

For several reasons, the CLS view of law as a collection of legal discourses is seen as a sub-optimal position by adherents of this school of thought.  Although methods of formal legal discourse are technically open to all, use of these methods to suit one’s own needs requires money.  Therefore, the wealthy and powerful are able to make better use of this system.  Another criticism of the status quo by CLS scholars is that participation in legal discourses necessarily requires the participants to accept that the existing social order is just and rational.  All claims must be framed in a way that supports the view that there has been some temporary disturbance in the normal order.  Legal discourses require viewing the world in an ideal way that presents individuals as free and equal – this is seldom the case.  For these reasons, CLS scholars see the construction of law as a collection of legal discourses as a force that inhibits social change and promotes the status quo.  These scholars believe that by disassembling these discourses, they can encourage and accelerate social change.

CLS Critiques of Mainstream Legal Thought

The standard centrist viewpoint is that there is an ideal balance point in every legal dispute.  This balance point should be the choice of any responsible legal professional.  Another common point of view is termed “legal economics”.  This viewpoint involves valuing alternative choices and selecting the more efficient option.  CLS scholars disagree with these standard points of view.

The critiques of these viewpoints by CLS scholars can be put into three general categories.

1)      Trashing

2)      Deconstruction

3)      Genealogy

Trashing is an attempt to show that the current system is not optimal – it has not found the way to make society as free and just as possible.  A scholar using trashing in their critique is likely to try and reveal an alternative way of thinking that they believe is repressed.  Frank’s argument that the non-existence of judge made law is a semi-legal myth would be ideally suited for incorporation into this type of critique.

Deconstruction uncovers the systemic and institutional biases built in to legal structures and procedures and reveals systemic contradictions.  For example, a CLS scholar could argue that there is an institutional bias in most legal discourses that favours moneyed business groups.  These groups have a much easier time organizing than poorer citizens.  A CLS scholar would likely use this strategy to critique the concept of judge made law discussed by Frank.  The ability of judges to make law would give advantage to any person able to afford legal costs to pursue their interests in court.

Genealogy involves exposing the history of legal discourses.  Many legal concepts (such as private property) have never had any agreed upon definition, and have been debated for centuries – any attempt at definition only represents one point in time.  Respecting the issue of judge made law discussed by Frank, a CLS scholar might apply this technique to point out that there has been argument over whether judge made law exists for many years.  Any attempt to state an answer to this question will only represent the consensus of the legal profession at one point in time.

What is it about CLS that makes people so angry?

  • It shows up the manipulability, vacuity and arbitrarily conservative conclusions of legal discourses.
  • It shows how power politics and cultural variation prevent formal legal rules from being enforced and applied in real life the way legal theorists and doctrines predict they will be.
  • It reduces the legitimacy and authority of their elders in the intellectual legal establishment through satyr. As the Norwegian philosopher Jon Elster stated, in a society where the authority is typically legitimized through control of the rational discourses, sometimes the most effective challenges to authority are those of “irony, eloquence and propaganda.
  • Threats to liberal freedoms, those maintained by “the rule of law” – if every right is contingent, what will we rely on to save us from the “fascists” or the “mob”? (one possible counter-argument) Risk of the pretense of the objectivity of law: frozen what people can hope to achieve, so long as their rights are protected they can’t complain and discouraging them from political action aimed to realize the emancipatory potential of law. Vaclav Havel, The Power of the Powerless (1985): establishing respect for laws does not automatically ensure a better life.

Other critics to CLS by Louis Menand’s What is Critical Legal Studies? and Marc Granetz’s Duncan the Doughnut (1986). Merely demystifying law does not lead to a meaningful political action: is a political rhetoric that costs CRITS nothing and gives a false sense of self-commitment and self-importance.

Additionally, another critic is that, in order to be in a standpoint of radical criticism, you have to be at the margin of society: if you don’t get rid of your middle-class privileges, you are forever disabled as a critical intellectual and political actor (i.e. identifying with the proletariat). Furthermore, if you work inside a system you help to reproduce it. CRITS can respond, at this point, using arguments, that there is not a particular central institution of social power, but rather hierarchy is created through hundreds of thousands of particular transactions: everyone through small acts of resistance and reformation is a potential agent of liberation. It is not only good to struggle outside the system, even though the greatest honour in any activist movement must be reversed for those who renounce to their comforts and privileges.

Sania Ahmed, Roseanna Gentry, Arnaldo Mitola and Stephen Shields

Con amicizia letto da Maria Elena Sandalli

Bibliography

Robert W Gordon, “Law and Ideology” (1988) 3:1 Tikkun 14.

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