This post is part of a series on whether LPE needs theoretical foundations, and, if so, what kind of theory it needs. Read the rests of the posts here.
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Sam Moyn’s recent blog post urging a renewed interest in a radical theory of law, and his accompanying article’s reconstruction and defense of (a part of) CLS, are timely and valuable contributions. Now, I would say that, since, like Sam, I too was raised by CLS and feel deeply indebted to its leading lights. Moreover, I am currently working on a large-scale attempt to reconstruct and critique received critical traditions in legal and social theory to help develop a distinctive LPE approach, an effort that Sam generously cites to as a foil to his own approach.
But unlike Sam, I think the way forward for LPE lies more in learning from key CLS failed efforts than in reviving key CLS insights. And a central CLS failed effort, in my view, was with respect to theory: far from having too much of it, there was rather too little. In fact, let me put the point in even starker terms: I believe that, upon closer inspection, CLS did not have (much of) any theory at all in the relevant respects.
I realize just how wild such a claim will seem. And for a full-scale defense of it I can only refer interested readers to my forthcoming article. Here, I’ll simply rely on the evidence internal to Sam’s own reconstruction and partial defense of CLS to advance a three-fold claim: First, as a matter of both legal and social theory, once implausible variants of CLS claims are out of the way, what is left is little more than gestures toward a theory, with few analytical tools or substantive contributions to one, either for an account of legal reasoning inside fields of law (“legal theory”) or for an account of law’s relation to external social factors (“social theory”).
Second, a principal reason for this lies in the fact that, in the course of rejecting classical Marxism, the Crits failed to engage seriously with a critical Marxian tradition that actually provides real analytical tools for the construction of both social and legal theory. While Unger’s work came closest in this respect (here I agree with Sam), alongside Horwitz’s (here we disagree), upon examination it too reveals a set of promissory notes to redeem, rather than analytic tools to build from. So, finally, if LPE wants a social, political, and legal theory adequate to its ambitions, we will have to look elsewhere.
A Golden Mean?
Sam’s argument, stripped to its core, consists of the following three claims: First, that received views of CLS have been marred by unduly emphasizing extreme positions on two fronts: (1) either crude functionalism or radical contingency in the understanding of how external social factors shape law; (2) either little malleability or radical indeterminacy in the understanding of how internal legal reasoning works. Second, that in between these extremes—represented, respectively, by Morton Horwitz and Duncan Kennedy—lies a better middle course charted by Roberto Unger on both fronts. Finally, that this middle course is necessary for any radical theory of law, and thus ignored at their peril by feminist, critical race, or Marxist scholars, all of whom need some such theory and so would have to reinvent it if it did not already exist courtesy of CLS.
Yet when we turn to find out what this judicious middle way consists of, it turns out to be surprisingly thin, to the point of vanishing. Thus, to take up the social theory claim first—that law is “functionally underdeterminate” in its relation to external social factors, rather than either fully determinate or radically contingent—Sam offers the following articulation of Unger’s position:
‘We have placed at the top of the agenda the following problem,’ Unger wrote in closing ‘The Critical Legal Studies Movement.’ ‘On the one hand, there are practical and imaginative structures that help shape ordinary political and economic activity while remaining stable in the midst of the normal disturbances that this activity causes. On the other hand, however, no higher-level order governs the history of these structures or determines their possible identities and limits.’ In short, the domination and oppression of social orders are real; its forms and paths are underdetermined. Unger repeated this mantra over and over. If it is the only credible framework for a radical legal theory, we should, too.
What needs to be noticed is how little actual substance is offered here (or in surrounding pages), either in terms of characterizing what precisely “functional underdeterminacy” is—besides simply a “middle way” compromise between two undesirable extremes—or how precisely Unger (or anyone else) proposes to analyze law through that lens. There is simply no account here of the content of Unger’s (or any alternative desirable) social theory of law. Indeed, Sam states as much when he says that he will not provide any account of Unger’s theory but simply “restrict” himself “to providing evidence of Unger’s aspiration.” But showing that Unger “apires” to tack halfway between social “freedom” and “necessity” is simply not enough: all the action lies in specifying what are the sources of constraint or necessity in the social shaping of law and what are the spaces or tools of freedom. “Repeat[ing] this mantra over and over,” as Sam counsels, simply won’t do.
What we need rather is some indication of what plausible explanatory accounts of the social shaping of law might look like. That is, some sense of: (1) what social factors are plausibly thought to be explanatorily significant for law; (2) in what way—how and to what extent—those factors shape law (e.g., by directly pouring in legal content, by constraining allowable content ex ante, by filtering out impermissible content ex post, what?); and (3) how those factors themselves, in turn, are shaped or constituted. That is the minimum content of any social theory of law.
At least it is if we accept that a social theory should aim to provide explanatory accounts of social dynamics. While that is my own view, it remains a highly contested one in the literature on social theory, where alternative guiding aims to “explanation”—principally, those of merely “understanding,” or “interpretation,” or “critique”—are often touted as more feasible or desirable aims. Now to some extent we can simply set aside the point here, since the premise that explanation is the point of social theory is one shared by Sam in his article and Unger in his work. Yet there remains an important issue to flag, one that Ntina Tzouvala put her finger on with characteristic acuity: for many within CLS, the aim of theory seemed less to be the cognitive one of explanation than an aesthetic one of celebrating complexity for its own sake. Indeed, that a “cult of complexity” took hold within CLS and related postmodernist currents was a point forcefully made and pushed back upon by Morty Horwitz. The appeal to complexity is a sign of defeat in intellectual analysis, masquerading as sophistication. This is because the starting point of any analysis is to confront a complex problem, with the entire point of said analysis being to wrestle that complexity into generative insight. To end an analysis with “it’s all very complex” is simply to put up one’s hands.
Turning now to legal theory, or the CLS account of legal reasoning, parallel difficulties face Sam’s discussion of “interpretive underdeterminacy” as the right way forward between the extremes of “little malleability” versus “radical indeterminacy” of the legal materials. First, it is not clear what “interpretive underdeterminacy” amounts to: at one point it is said to be “enough underdeterminacy” (enough for what?), at another, “prevalent underdeterminacy.” Let us call it “some underdeterminacy” for short. But then a second difficulty is that Sam himself states that:
Everyone agrees law is sometimes interpretively indeterminate and routinely underdeterminate. This underdeterminacy cannot have been the main contribution of critical legal studies because the consequences of ambiguities, conflicts, and gaps in the law have been known to legal theory for so long.
But in that case, what’s the claim? What, precisely, is CLS’s contribution on this front? Unger, Sam states, “beat a retreat to the view that undeterminacy is enough both as a general proposition about legal interpretation and as an element of some future theory of law and ideology no one has yet built.” But if “some underdeterminacy” is a banal commonplace in legal theory, as Sam suggests, then how can defaulting back into it be a contribution? (I should add that I myself do not think it a banality, but that’s because I think the entire notion of indeterminacy—be it “some,” “radical,” or “none”—is a fundamentally misguided starting point for the analysis of law, one that partakes in precisely the mistaken and mystifying premises of a formalism that critics unwittingly share as part of an internal critique. A better critique would simply jettison the premises.)
Thus, both in the legal theory of interpretation and social theory of explanation, we have a parallel set of moves: in both cases, CLS is sought to be distanced from implausible extremes, but then its sole contribution is said to be to settle on a somewhat platitudinous middle-ground between said extremes, without any indication of the substantive content of such a position.
I hasten to add that the fault here may lie less with Sam’s reconstruction of CLS than with the material he has taken such pains to excavate. Indeed, one of the signal contributions of Sam’s article is to show just how little constructive analysis from CLS can be churned up even by a sophisticated defender. How can this be so? Simply put, the twin CLS commitments to complexity for its own sake and a flight from explanatory theory fostered an atmosphere of unclear thought, whereby a mix of abstruse formulations and laundry-list descriptivism masked an absence of any actual analysis. Even for those who eschewed complexity for its own sake, such as Horwitz and Unger, there remained a wariness toward explanatory social theory, since its most prominent instance, classical Marxism, had been discredited in their eyes. The result? With the lowering of explanatory ambitions often came, unnecessarily and unfortunately, a loosening of analytic rigor.
In Search of Lost Directions
This takes us to the issue of alternatives: if not CLS then where else might we look for LPE foundations? The alternative that has featured most prominently in this exchange is Marxism. It was of course the “historical materialism” of classical Marxism that provided a principal bête noire and contrast for CLS (along with, from the other side, liberalism). The Crits took a jaundiced view of many of its central theses, and in particular argued that claims from law’s autonomy, constitutive role, and indeterminacy served to undermine their validity. And so I will close by making three points about the relationship of Marxism, classical and critical, to CLS. These will obviously have to take highly compressed form here, but a fuller elaboration of each may be found in my piece.
First, in my own view, none of the following theses of classical Marxism are, in fact, in good working order: (1) a theory of “the laws of history” in terms of the succession of “modes of production” corresponding to developing the “forces of production”; (2) a theory of society in terms of “base/superstructure” dynamics determined, in the last instance, by “material” economic factors; (3) a theory of “the laws of motion” of capitalist society anchored in “the labor theory of value”; and (4) a theory of social change as the wholesale structural substitution of one mode of production (capitalism) by another (socialism), principally by the abolition of private property in “the means of production.” And so I hope nothing in my argument here is taken to imply that the apt alternative to CLS for social theory is a return to classical, “materialist” Marxist analysis.
Yet, and second, the reasons for classical Marxism’s flaws have little to do with Crit claims from law’s autonomy, constitutive role, and indeterminacy. In fact, classical Marxism can defend itself quite well against these criticisms—indeed, it already did, avant la lettre of CLS. No, the problems with classical Marxism lie elsewhere, and were best exposed by a critical Marxian tradition. The fundamental flaw of classical Marxism, or “historical materialism,” was its mistaken projection onto history as a whole of what are the historically-specific products of capitalist social relations, namely a strong tendency toward “autonomous” (sic) technological development. In fact such technological dynamics are historically-specific to capitalist social relations. More generally, the classical tradition—anchored in a materialistic conception of history in which “modes of production” rise and fall in accord with transhistorical “material” factors—failed to follow through on what was Marx’s most truly breakthrough, Copernican insight: namely, that social forms are the foundational unit of analysis, to be approached in their historical specificity. In the place of a “materialistic conception of history,” we need, rather, a historicist conception of materialism.
The analytic tools for coming to grips with such social forms were also, finally, first forged by (Hegel and) Marx and then, after lying fallow for some decades, picked up and rejuvenated by two lines of critical Marxian analysis, one emphasizing the fundamentality of social relations as the unit of analysis, the other emphasizing the centrality of historical specificity in their form. And here is where CLS took a fateful wrong turn: while the Crits passingly cited to some of this critical literature on their way to rejecting classical Marxism, they never stopped even properly to state, much less further develop, the content of these critiques, let alone consider their upshots for constructive work going forward. The result? A desultory failure to build upon, instead of leaving fallow, the one genuine theoretical alternative to the naturalizations of liberal individualism.
Where does this leave us? With a two-fold task, I believe, to build on the legacy of Legal Realism and CLS in a new direction. That legacy I take to be, fundamentally, a two-fold aspiration: to denaturalize political economy and to dereify law. In both cases, the main Realist/Crit strategy was to advance internal critiques of mainstream views, of formalism in law and individualism in political economy: where the mainstream saw legal necessity, the critics claimed contingency, and where the mainstream deferred to the choices of individuals, the critics pointed to the hidden hand of the state. In so doing the critics adopted, willy nilly, the same premises as their liberal targets, namely that of the self-evident authority of legal sources and a liberal ontology of individuals plus the state. And this led to critical blinders, as if nothing can be wrong with laws apart from internally unstable meanings (“indeterminacy”) or market processes apart from the role of the state (“legal constructivism”). It also led, more obviously, to the lack of any constructive upshot, either of how legal reasoning can and should work or of the dynamics of political economy.
To move past these limits requires not reconstructing CLS, but leaving behind its internal critiques that accept liberal premises. It requires rolling up one’s sleeves and embarking on two interlocking projects of developing more thoroughgoing critiques that attack the premises themselves, by denaturalizing political economy as an arena of irreducibly social relations and dereifying law as a human artifact answering to human interests. Such critiques would bring in tow their own systematic, hence constructive, alternatives—or theories. Developing these would help LPE to realize the two-fold aspirations that I take it we share with—indeed have inherited from—our predecessor critical traditions.
