The Critical Lawyers' Handbook Volume 1
1: Critical Legal Theory
Among law students and practitioners, even radical practitioners, theory tends to have a bad name. Many, reflecting on their experience of jurisprudence or theory courses come to the conclusion that theorising about law is little more than the self-indulgent pastime of a few academics, harmless in itself, but largely irrelevant because it has no impact on the real world. The dominant view appears to be that legal theory and legal practice are extreme poles, with substantive or 'black- letter' law (which is seen as a good deal closer to the practice pole) in between. From this it follows that if one is concerned to change the world in practice a radical lawyer is better advised to master such things as housing law, the legal aid provisions or labour law than to bother with legal theory. How often are we told that to be an effective radical lawyer one must first (and last?) be a good lawyer - an attitude we should note which assumes that law is merely a neutral tool which the good may use to do good even though the bad use it to oppress.
This view of theory as marginal, a mere optional extra for those with intellectual pretensions, may not be an unfair characterisation of many traditional jurisprudence courses and writings, though as I will suggest they are far from simply harmless. One of the main thrusts of the critical legal studies movement, committed as it is to changing the world and rejecting any idea of pure theory out there, is that theory does matter in practice in the real world, for the simple reason that the 'reality' of the real world is sustained in large measure by leaving unchallenged the implicit theories which constitute it as real. In other words the more we treat what passes for the real world and the facts of life as the only possible world and the only possible facts, then the more that acquiring the skills and knowledge on which that world works and which make it what it is (such as lawyers' skills and knowledge of substantive law) will appear as the only things worth bothering about. Conversely, the more we recognise the artificiality of the 'real' world, in the sense of it being an artifact, and the mere orthodoxy of 'the facts of life' (Berger and Luckmann, 2967), the more we are forced to recognise that not only do we sustain this world by playing by its rules, but also that it is not 'black-letter' law but theory which has the capacity to affect practice in more than a marginal way. Quite simply it is only if we adopt a more or less conservative ('realistic') view of the real world and of legal practice, and do not question its implicit theory, that legal theory will appear as irrelevant. One thing critical legal theorists are not is conservative, for their aim is not to support but to subvert the existing order of things, by disclosing by what and how it is supported and sustained.
Critical legal theory
must, therefore, make explicit the implicit theory on which the existing
legal rules, institutions and practices are based, with the aim of showing
that since that theory cannot support what it claims it can, the world
could be otherwise. This is particularly clear in the agenda of the American
Critical Legal Conference. Moreover, it immediately distinguishes critical
legal theory from traditional jurisprudence. While traditional jurisprudence
claims to be able to reveal through pure reason a picture of an unchanging
and universal unity beneath the manifest changeability and historical
variability of laws, legal institutions and practices, and thus to establish
a foundation in reason for actual legal systems, critical legal theory
not only denies the possibility of discovering a universal foundation
for law through pure reason, but sees the whole enterprise of jurisprudence
(and this is what reveals it as not harmless) as operating to confer a
spurious legitimacy on law and legal systems. Furthermore, by treating
law as a discrete and distinct object, jurisprudence reinforces, as does
the concept of 'black-letter' law, the idea of law as having an autonomous
existence separated from politics, morality and everyday conversation.
In denying this separation, along with the claims that would found law
in reason, critical legal theory attempts to reconnect law with everyday
political and moral argument, struggles and experiences, With all their
attendant incoherences, uncertainties and indeterminancies. Most importantly,
in rejecting a view of law as the expression of reason, critical legal
theorists reveal, in different ways, law as the expression and medium
of power. Against those who assert, whether they see themselves as conservative
or progressive, that there is no need for theory because law is obvious,
critical legal theorists assert that law is far from obvious primarily
because its relation to power is not obvious. In short, the need for theory
arises because the relationship of law and power is not self-evident -
the practical point being that if we are to resist Power it is a necessary,
even if not a sufficient, condition that we first try to understand it.
While united in the
importance they attach to theory as a means of realising in practice the
better world to which they are committed, the critical legal theorists
do not endorse a single theoretical position. Rather, as the pieces which
follow illustrate, the movement consists of a plurality of approaches
and strategies to get at the power in the law. Indeed many see in its
denial of any single royal route to truth (contrary to the 'project' of
jurisprudence), and in its celebration of diversity, its most liberating
aspect. For it embraces not only sand theorising about the power relations
behind the law but also micro-analyses of power in particular aspects
of the legal process and of legal discourse. In what follows I attempt
to identify in very broad brush-strokes some of its more influential approaches
The basic strategy is to take law and its claims seriously and, by trying to see if they add up, to reveal the fundamental weaknesses and contradictions in the whole edifice. More particularly the edifice, of which law is seen as a part, is generally identified as the liberal world view. This is based on the premise that it is possible to reconcile and coordinate the different purposes and interests of individuals in a social order which is just in the sense that it transcends relations of power, privileging no particular interests and grounding all obligations on consent. While this has been the promise of the West, finding expression in (inter alia) the rule of law, constitutionality and freedom of contract, again and again it is argued that that promise has not been fulfilled, not only because there is a gap between reality and the ideal, but because the ideal is fatally flawed in that it contains irreconcilable contradictions.
These contradictions, which in some versions are based on a fundamental contradiction between the individual and the social, are, it is argued, reflected at every level of the legal operation. For example, there is the endemic contradiction between deciding on the basis of rules and deciding by reference to standards, or the contradiction between assuming individual actions are based on will and intention and treating such actions as socially determined.
The point that those critical theorists adopting this approach make is that while in practice one pole of these contradictions tends to be privileged, the individual rules and free-will pole, the pull to the other is perennially present. Thus, the contradictions remain, revealing the promise of law to create a just social order as empty.
Politically such work
has shown that if law cannot deliver on its promise to transcend power,
it must be concealing power, and that the power of the law is, therefore,
in large measure ideological, that is to say it makes social relations
based on power appear legitimate and just because they appear to be beyond
power. Practically this approach leads to two political strategies. First,
arguing for shifting the emphasis in legal decision-making towards the
unprivileged, more social pole. For example, emphasising the social responsibility
of acting in good faith as opposed to ideas of individual entitlement
in contract cases, or stressing the social determinants of behaviour in
the criminal justice system. Secondly, seeking to engender real participation
of the community as a whole in the decisions that affect them, for law,
it is argued, oftly appears to be a way of avoiding making, on the basis
of argument, the political and moral decisions that affect any community.
Crudely, by seeking to expose the trick whereby liberal legality claims
to have overcome social relations based on power, the American critical
legal theorists claim to be contributing to resisting power. However,
since they generally eschew presenting any theory of power to set against
liberal theory (as opposed to showing how such a liberal theory of legality
serves the interests of empirically powerful groups such as capitalists,
men and whites), they largely remain within the democratic tradition of
giving power to the people in some unspecified sense.
By far the most influential of such structuralist approaches to law have been Marxist critiques, though some versions of feminism adopt a broadly similar strategy. They are represented in this chapter by Fine and Picciotto, by Adelman and Foster, and are discussed in Bottomley. Broadly, this strategy uses a theoretically constructed map of the real power relations (for example class relations or patriarchy) in a particular society to explain the nature of the legal process, institutions and ideas in that society. Primarily this has taken two routes: first, by showing how dominant groups in society have gained control of and use the legal system to preserve their interests, and secondly, by showing how liberal legality, based on such ideas as equality before the law and individual rights, serves to legitimate inequality by sustaining a superficial and false ideology of equality. In more deterministic accounts this takes the form of showing for example how the ideology of liberal legality and the rule of law, as well as many more particular legal concepts (such as private property and freedom of contract), are the necessary and practically adequate appearances of social relations under capitalism: necessary in the sense that they function to preserve the dominant interests of capitalists or of men, and practically adequate in that they reflect the everyday processes such as market exchange and the marriage relationship which in practice sustain and reproduce existing power relations.
While I will leave
the pieces to which I have referred to speak for themselves I might add
that the great attraction of such accounts is that, potentially, they
enable one to specify much more clearly a critical practice in relation
to law. For example, if one accepts the view that liberal legality, bourgeois
rights and ideas of equality before the law are mere humbug concealing
the real relations of power in capitalism, namely the exploitative relations
between capital and labour, at least one part of the agenda of a critical
practising lawyer may look relatively clear. There is a real dilemma in
using law to fight the system which (theory tells us) law maintains.
Politically inspired largely by the perceived failure of Marxist socialism to deliver its promise of a society that overcomes exploitation, the last two decades have witnessed a growing doubt about the Marxist project and a growing feeling that it is infected with the same weakness as the liberal capitalist system it opposes, and of which, as the counter culture of capitalism, it is arguably a part.
'I'hat weakness is seen by many as the continuing faith, shared with its liberal protagonist, in the capacity of reason to realise progress. Thus, many argue that domination and exploitation are not the monopoly of any one theory, but are characteristic of all theories especially those, such as Marxism, which make claims to truth on a grand scale. The reaction to this doubt, which questions the capacity of any theory, as a set of words or symbols, to represent reality and, therefore, to provide a foundation for a critique of law or anything else, has been complex and multifaceted.
Perhaps one of the
most important early influences of this way of thinking in relation to
law came from the writings of Michel Foucault. In his attempt to free
us from a belief in deep underlying structures, Foucault argues that to
conceive power as something which some possess and use to repress others
is to fail to see that power is not just the localised possession of a
few, but a ubiquitous feature of social life which it positively constitutes,
including for example, us as individuals. In short, there is nothing which
is not the effect of power, and no form of knowledge which is not also
itself a form of power. Contrary to Marxism, there is no essential humanity,
or 'us', to emancipate. The practical import of this is that, while power
cannot therefore be overcome, we can use the resistances it engenders.
The role of the theorist is, therefore, the modest one of exploring the
micro-processes of power - operating in institutions such as the family,
prison and schools - to reveal the possibilities of resistance. The piece
by Fitzpatrick reflects this approach in its attempt, while recognising
law as a form of power, to argue for an idea of law related to particular
situations, which can operate as a form of resistance to the power of
law as a whole.
As many, including
Economides and Hansen in this book, have pointed out, critical legal studies
has dominantly been a movement in the academy and has largely failed to
inform legal practice. In this section I want to explore briefly two questions.
what use is theory in practice, and can legal practice, informed by critical
legal theory, be progressive?