Birds of a feather. Ships passing in the night. Sister species. How should we understand the relationship between LPE and the critical legal traditions? To begin to answer this million dollar question, the LPE Blog has decided to zoom a friend. In fact, we’ve decided to zoom seven.
This Friday, at 2p ET, Libby Adler, Amy Kapczynski, Duncan Kennedy, Karl Klare, Akbar Rasulov, and Talha Syed will discuss their approaches to concepts of “indeterminacy” and “political economy” – reflecting on how they understand these terms, and their investments in them. Expert moderation will be provided by Aziza Ahmed.
You can register for the event here, and at the bottom of this post, the panelists have shared some suggested readings that will orient the discussion. But to further whet your appetite, the LPE Blog asked one of the panelists, Talha Syed, if he’d be willing to share with our readers an off-the-cuff definition of these two weighty terms (would that we all had such definitions at hand!)
I take “indeterminacy” to name a critique that initially targeted legal reasoning in the context of adjudication, and then spread to the critique of legal concepts more generally (e.g., “property”) as well to concepts in political economy (e.g., “markets”) and political philosophy (e.g., “rights”). Despite the name under which it travels, the critique is not so much one of “indeterminacy” strictly speaking—that is, that the relevant materials or concepts provide no constraint—but is better understood as making claims about “under-determinacy,” that the relevant materials or concepts fail to provide sufficiently rigid constraints on meaning or guidance.
The critique can be seen to take two main distinct forms: (a) a “global, maximalist” critique based, typically, on some claim of linguistic indeterminacy; and (b) a “local, minimalist” critique based, typically, on a practice of work on specified ideologically-loaded materials. Both variants, in any case, are internal critiques working from within the materials they critique and, as such, should be distinguished from “external critiques” that focus on the origins or effects of said materials. For present purposes, I understand the core indeterminacy critique to be the “minimalist, local” version, which holds that working from within certain given materials or concepts, one may (often? rarely? usually?) show them to be under-determinate as to meaning or guidance in a specific, ideologically-loaded, context.
To briefly elaborate on its main variants and genealogy, I take these to be two-fold as follows:
- Legal Realist origins: A strand of the Realists argued that the positive legal materials did not disclose only one answer to a dispute but often two, which “hunt in opposing pairs” (Dickinson), as shown most elaborately for both statutes and precedents by Karl Llewellyn. In a nutshell: to interpret or apply the positive legal materials requires recourse to canons of interpretation (construction; application), and these come in opposing pairs of argument bites, enabling one to reach whichever (of at least two) decisions one wishes to rationalize. Thus, legal “reasoning” is more an enterprise of ex post rationalization of a decision that one has arrived at on other (psychological, sociological, “hunch”) grounds, than it is an actual form of ratiocination through which one reaches an answer.
- CLS extensions: CLS, first, resurrected this mode of critique after its post-WWII submersion by legal process; and second, extended it to apply not only to the positive legal materials or “doctrine” of the Realists’ opponents, but now also to the arguments of “policy and principle” advanced by the Crits’ foils, be it of process, rights, or efficiency. Similar moves, it was argued, of internal contradiction can be shown to reveal that policy and principle cannot supply what doctrine was missing. Here, too, more than one answer may be disclosed, making the “reasoning” a cover for something else going on, sub rosa. Though, it should be said, that something else (“ideology”) is likely as indeterminate as the legal reasoning process, and the latter in fact shapes the former and vice versa, in an ongoing back and forth of mutual constitution of respective contradictory blocs of argument jumbles. A “hermeneutic circle,” if you will.
Mainstream or neoclassical economics focuses on an analysis of (a) markets understood in naturalized terms (of “natural liberty” or “private ordering” by homo economoi) (b) in pursuit of allocative efficiency. Responding to this view is a tradition of critical political economy that emphasizes (a) the role of the state in shaping the rules of the game that structure both market activity and group interaction in civil society (b) for the sake of analyzing distributive effects. The mainstream may be called a “Smithian” tradition, and the critical tradition a “Ricardian” one. Key Ricardians include Henry George, Robert Hale and CLS, with the latter, crucially, also incorporating insights from CRT, feminist legal theory, and queer theory, to extend the line of analysis from economic groups to racialized/gendered/sex-normative group conflict as well. On this account, Marx is assimilated as a left Ricardian, extending Ricardo’s property-based rent analysis from landowners to capitalists (with any residues of “materialist” determinacy left aside).
My own view is that a better understanding of Marx’s project, and a better foundation for the PE in LPE, is not as a “critical political economy” but, rather, as a critique of political economy.
Relatedly, my own view is that a better foundation for the L in LPE is not “indeterminacy” but, rather, dereification.
Both of these to be elaborated on Friday.
Kennedy, excerpts from A Critique of Adjudication
Klare & Davis, Critical Legal Realism in a Nutshell
Adler, The Indeterminacy Trap from Gay Priori