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Does LPE Need Theory?


Samuel Moyn (@SamuelMoyn) is the Chancellor Kent Professor of Law and History at Yale University.

The Law and Political Economy movement has already wrought a vast change to the legal academy. In an impressively short time, it has established itself as a presence, built this blog and hosted conferences, imagined curricular change, and strategized about a faculty pipeline. And it has explored its own intellectual premises—most notably in a widely-read Yale Law Journal piece, but also in sundry posts. So it may seem counterproductive or just strange to pose the following question: what is LPE’s theoretical perspective?

This post is a related to a recent piece I wrote on the relation between LPE and the prior critical legal studies movement — a relation that I have never completely understood. Some stress continuity, and others (especially the Marxists who populate the LPE community) discontinuity. One striking difference between the two movements, however, is the relative embrace of theoretical foundations. No one would have ever accused CLS of lacking a theory; if anything, it had too much of it, harboring mutually contradictory theories that require choice and triage, if we are to make use of its legacy in building another radical theory of the law.

As I emphasize in my piece, what “theory” is turns out to be historically flexible and mutable. Not every age needs the same kind of theorizing. I quit grad school (I returned) and went to law school out of exasperation with the altitude and opacity of intellectual discourse in the humanities a generation ago. What one study calls “the summer of theory” has definitively passed. As I also say, the (egotistical male) posturing so common in that climate is not worth recovering. But there has to be space amidst changing expectations for the character of intellectual work to complain about a theoretical deficit in this or that movement. There are downsides to the fact that winter is coming. And I think theory — more of it than LPE agrees about so far — is important for various reasons.

One is the famous adage in legal academy that “it takes a theory to beat a theory.”

Now, I’m not actually sure the adage is actually true; intellectual change rarely happens for exclusively or even predominantly intellectual reasons. But law schools, whatever else they are for (mostly bad things, I think), are or were also sites of theory. And both legal realism and its successors were in a relation of contestation with other schools of thought in their era—especially the (economic) liberal thought they aspired to challenge. They were themselves challenged in turn.

Forgive me if I’m wrong, but I haven’t seen much of that in our time. LPE often talks about law and economics as a malignant force (it is). (Comparably, it treats such words as “democracy” and “equality” favorably, though they are contested in their definitions and implications.) But insofar as LPE has confronted the prescriptions of law and economics—arguing, for instance, that efficiency should not crowd out other values—it has resisted offering a more systematic normative theory. And it has shown essentially no interest in articulating the general social theory of law on which its pluralistic normative claims rest. Does this inhibit our colleagues from taking LPE as seriously as they might? I worry that it does.

One possibility to toy with is that avoiding a contestatory relationship with rival theories in favor of various other strategies is self-protective. It wasn’t just that CLS brought the wrath of the legal establishment, and even the president of the United States, down on itself, incurring its own destruction. It also became fashionable to attack its intellectual premises. LPE hasn’t courted this kind of opposition, which is perhaps a good thing for the moment. But the result does make it harder to teach LPE as an intellectual alternative for theoretical allegiance for the undecided, or just for those who want to identify the terms of choice.

But I see a deeper quandary in theoretical circumspection. There have been, of course, many noble defenses of theoretical quietism amongst theorists themselves, like Richard Rorty or Ludwig Wittgenstein before him. But excessive quietism shouldn’t mean we don’t know what we are signing up for in the first place, or that we don’t have the fights to clarify it for ourselves, as the non-committal weigh their choices. And beyond a sense that our critiques and proposals are rooted in some normative theory of justice or other, I would have thought that radicals in the academy would push beyond such prevalent frameworks to insist on a social theory of how law helps make (and occasionally transform) our relationships. Back to the nineteenth century, such a social theory was regularly the basis of orientation and (self-)understanding for left-wing intellectuals.

Are we liberals or low-key Marxists? This has been a huge unclarity in LPE from the start, yet there was a major global struggle about the difference. Is an analytic of “power” about exploitation in the market, or do we need to orient ourselves to Judith Butler on its psychic life and Michel Foucault on its microforms? Is there such a thing as the “capitalism” that we attack most consistently; if so, what is our theory of it? What are the terms of combining our answers about the nature of political economy with new insights into ableist, gendered, patriarchal, racial, or settler domination (to name a few)? Above all, what is our broadest theory of the role of law in society — in particular, in the making and unmaking of social order? In this regard, are we radical crits, or only reformist progressives, or something else?

To be clear, I think there are a lot of explicit and implicit answers to such questions in LPE work, and I am probably exaggerating LPE’s aversion to theory to sharpen this point. However, I also think that further clarity is disabled by two other commitments, which may well show their limits as time passes. One is a deferential attitude towards grassroots movements, and the other a strategic postponement of potentially divisive controversy.

I get that the deference to movements preempts vanguardism and especially a much worse deference to bloviating theory-heads who will not shut up. Amna Akbar’s brilliant recent Yale Law Journal feature on non-reformist reforms epitomizes the wisdom of our moment that the struggles of ordinary people are our lodestar—and always should have been if they weren’t. But then, the dilemma of leadership in movements has been a stock-in-trade of left theory and practice alike for more than a century, movements are hardly self-authenticating, and fail because of their own mistakes. I’m not saying theorists or theory should play a leading role, but should we envision law schools (especially ones little more than glorified finishing schools for the ruling class) as nothing more than staging grounds for practical servants of the masses?

This is because, even when they perform deference, law professors are inevitably most involved in the knowledge-work of teaching and writing, and therefore in competition for insight (and status) with other knowledge workers. We also know those conflicts matter somehow or other. Law and economics, our bugbear, itself came to hegemony in part because of social mobilization of the rich in society, and the professional ascent of economists who mounted an imperial campaign across the academy—but also because its votaries crafted theories that still dominate private law teaching, so far as if Law and Political Economy had never existed.

I also get that all fledging causes strategically postpone things that could disrupt their success—including by causing schism. A big tent or broad church approach to recruiting people to a more ecumenical or nebulous faith can work like a dream. It can definitely avoid nightmares like the multiplication of denominations, each with their theoretical gurus, that add up to less than the sum of their parts in their prominence and power. Arguably, the dream is working for LPE, without the nightmare. But I do wonder at what point the advantages begin to be outweighed by the drawbacks.