The Critical Lawyers' Handbook Volume 1

1: Critical Legal Theory

Foreword: Critical Approaches to Law, Who Needs Legal Theory?

by Alan Thomson

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.


The Diversity of Critical Legal Theory

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 and strategies.



Trashing the Liberal Edifice


This approach, which has centrally informed the American Critical Legal Conference (see Kairys in this chapter), essentially involves showing, sometimes in very broad terms, sometimes in very particular areas, that the claims law makes cannot be sustained. For example, the claim that law is a means of resolving disputes which is politically neutral in that it does not reflect particular interests, or the claim that law consists of rules which form a clear and coherent system and which are capable of determining, without relying on external value preferences, answers to all but perhaps the most exceptional of hard cases.

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.


Structuralist Approaches


In contrast ,what distinguishes what I call structuralist approaches is precisely that they do offer a theory of power relations. Thus, while largely accepting the critique of liberal legality as creating false appearances, structuralist critiques seek to go further, and to reveal theoretically the real power relations which those appearances conceal. In short, they claim that there are deep structures of power which theory can draw out and represent.

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.

'Post' Approaches

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.

While Foucault represents one reaction to the doubt of reason and the consequent suspicion of theory, particularly in its grander and more imperialist versions, that doubt is revealed in many other ways which impact on our understanding of law. First, following from a rejection of an idea of theory as something out there which can be taken off the shelf to decode the world and reveal its true structure, comes a rather different conception of theory, namely of theory as essentially reflexive, the product of reflection on lived experience, and an attempt to give voice to understandings which have been suppressed in large measure by the dominant grand narratives of truth. Feminist writing which argues for feminist theories of law, rather than merely fitting women into male theories, as discussed in Bottomley, exemplifies this approach, as does much writing on law in relation to racism and imperialism .


Secondly, rejoicing under the wilfully paradoxical label of postmodernism, and represented by the piece by Douzinas and Warrington, we find a position that seems to bring the discussion of theory full circle, for on one reading: it is a theory that seeks to establish the impossibility of theory. Certainly a law student encountering much of this postmodern writing may be forgiven for thinking that he or she had stumbled upon some old-fashioned self-indulgent jurisprudential theorising joyfully celebrating its innocence in relation to the 'real' world. On another reading, however, such writing, by insistently demonstrating that no text can ever sustain the basis on which it makes a claim to truth, that all forms of thinking are constraints, and that all readings of texts are just that, namely particular readings (none of which can sustain a claim to be privileged as an authoritative reading), is essentially liberating. Certainly, by inviting us to read law and other texts anew to discover new and suppressed meanings opens up a brave new world of possibilities. While structuralist accounts such as Marxism have the capacity to liberate us from the 'real' world by showing us that it is merely the surface appearance of a deeper reality of power, a merely dictated orthodoxy, are we not more liberated when we recognise there is no orthodoxy at all and no privileged interpretation of reality? If words do not mean anything and only how we use them matters, everything is politics because everything is open. But is it? I leave it to you to read Douzinas and Warrington for yourself.


Critical Theory and Legal Practice

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?

Let me begin by saying that critical theory cannot do what I suspect many busy radical practitioners would dearly like it to do, namely provide ready-made, off-the-peg answers to practical dilemmas, such as which areas of practice to concentrate on, or which strategies to adopt in particular cases. It can only indicate some of the wider implications and consequences of certain courses of action, and in particular reveal that, unless legal actions are seen in the context of larger political action, they may well be counter-productive, at least in the long term. It may enable the practitioner to keep the broader picture in sight, but it would be counter to the whole spirit of such theory to treat it as a source of answers as opposed to a resource which people in real situations may use to create reflectively their own particular answers. Indeed, a central argument of critical legal theory is that one of the most significant, sources of domination and oppression is the belief that there is only one correct answer and objective truth. Certainly this is what the critical theorist seeks to dispel in the classroom.


More positively, what critical legal theory can do is demonstrate the possibilities. By disclosing the multitudinous operations of power in the law and legal process which sustain existing reality, one reveals that reality is only one possible world, thereby bringing other possibilities into view. For example, by trying to understand better (than those who defend it) the edifice of liberal legality, and thereby revealing its incoherences and contradictions, one acquires a means of resisting its arguments; by demonstrating how private property comes to be seen as natural, other forms of social relation become imaginable, and by showing that the official reading of any legal text, such as a case, is only one possible reading, one is freed to argue for other readings.


The great attraction of the postmodernist stance is that it apparently maximises those discovered possibilities. Under its wand all that is solid melts into air for it reveals that there are no truths in the way of anything. Nihilism becomes everythingism. While this liberation is clearly wonderfully exhilarating for a few academics (see the piece by Douzinas and Warrington.), it is a good deal. less clear that it is so for the rest of the world. Not only can it be taken as a charter for anything goes (Douzinas and Warrington see it as the new neutrality which favours no particular politics), it also rejects (as I cannot) the view that among the multitudinous forms of power which constitute our present reality there are certain dominant structures of power - most centrally, in my view, those of capitalism. Quite simply, while I do not believe that overcoming capitalism, or indeed making any other structural change, will overcome all forms of power and exploitation, there are nevertheless priorities in the choice of forms of power to resist now, and capitalism, along with male and racial oppression, is one of them.


Indeed in my view the structuralist versus postmodernist debate is largely phoney: one needs a structuralist analysis to resist and challenge the constituted dominant structures of power, but deploying such an analysis does not necessarily entail accepting that it is a privileged truth, or that it is not therefore a form of knowledge which is also a form of power. Just as using scientific knowledge, unless one is a committed metaphysician, does not imply that one accepts that the foundations of science are secure. On the one hand, postmodernism, which looks initially like the most liberating position, seems, because it explains too little, laughably impotent in the face of the realities as they are constituted by the dominant structures of power. On the other hand, postmodernism rightly warns us to be suspicious of trying to explain too much. More particularly, postmodernism leads us to recognise that to remain critical, critical legal theory must resist simply replacing the liberal theory it criticises with a theory of its own, which is complete, coherent and determinate. This means that liberal legality can be no more totally rejected than it can be totally accepted.


This brings me to my second question: whether, informed by critical legal theory, legal practice can be progressive. 'The dilemma here is whether critical legal theory, which goes beyond the sort of theorising called for by Hansen and Economides (namely identifying, in the sociolegal tradition, the broader consequences of adopting particular legal strategies), can justify using the law. For, as Kairys points out, critical legal theorists tend to see law as part of the problem and not part of the solution. On one view, best represented by certain Marxists, and until recently by a significant section of the trade union movement, law is such an integral part of the system of capitalist exploitation that to use it even for the immediate benefit of disadvantaged groups such as workers, women and the unemployed, is merely to perpetuate in the longer term the underlying system of exploitation which it seeks to justify (see Edie et al. in this book). For example, to struggle for employees' rights or women's rights, it is argued, merely reinforces a system which exploits people precisely by seeing them merely as bearers of rights rather than as real people with individual needs and experiences. 'There are numerous variants of this position. For example, the view that equal rights, because they are merely the expression of the surface appearance of capitalist production relations (that is, of exchange relations) conceal underlying oppression and exploitation; the view that rights thinking is essentially a male world view; the view that law itself is not the source of exploitation but merely hides the source of exploitation which lies elsewhere; the view that since law is so essentially uncertain and indeterminate any short term legal gain will be rapidly offset by the dominant groups changing the law, or the view that since law reduces people to isolated individuals it runs counter to the only possible basis for radical change, namely collective action.


Against this position is levelled the charge of utopianism, of passing up the chance of alleviating some suffering and exploitation now in the name of an uncertain possibility in an indefinite future. For those who identify themselves with the postmodernist banner, utopias are impossible dreams, and historically much suffering has been inflicted in their name. Further, they remind us that, just as in their critique of reason from the standpoint of reason, we can never escape the system of which we are a part, and there is no independent 'outside' from which liberal legality can be seen aright. Moreover, as Fine and Picciotto pragmatically point out in the context of the struggles of the labour movement, to simply refuse to play the legal game, while all the others are playing it for all they are worth, is to be clobbered by it. Similarly for women not to pursue the liberal the grounds that women's oppression involves much more is to reject a vital platform from which to struggle for that much more.


In different ways all the pieces in this chapter confront this dilemma, a dilemma which Bottomley, considering the situation of the feminist lawyer, aptly calls a double bind. All (except perhaps Foster and Adelman, who press for a 'politics of abolition' in relation to law) recognise that in some cases law can be used progressively, while sharing the view that we have to reject what Peter Fitzpatrick calls the 'surpassing' dimension of law. This I interpret, following Lukacs (1968), as meaning not being mystified by the claims of law as a whole in either  totally rejecting or totally accepting them.


In conclusion, in my view the primary role of critical legal theory, like Marcuse's idea of the role of art, is to continuously keep alive other readings of the world in the face of the deadening orthodoxy of 'reality'. That does not mean that, while it stands opposed to 'reality', critical theory is a theory against legal practice, for legal practice too can be a practice against 'reality'. Critical legal theory can contribute to make it such.