A recent workshop on the “Jurisprudence of Distribution” invited the opening panelists each to provide a five-minute overview of what a contemporary approach within left legal theory might offer. Other speakers covered Critical Race Theory, Feminism, Vulnerability Theory, left political economy, and so on. I took socialism and critical legal theory. Here are my five minutes (with some slight modifications for bloggability).
Socialism, with a positive valence, is making a comeback in left discourse, see, e.g., the LPE Blog’s burgeoning series on “socialist constitutionalism.” The New Left engaged in a project to rediscover socialism fifty years ago, but we haven’t heard much about it in recent decades. Now once again people are asking: what of value endures in the socialist tradition? What does socialism have to teach us, and what might it mean in the 21st century? Refreshing features of the new conversation are an emphasis on the moral dimension of socialism and the primacy of politics; a realization that markets can be uncoupled from capitalist power-relations; and a decided lack of interest in divining the supposed “laws of historical motion” and/or identifying the privileged agents of social change. The label “socialism” is no longer essential and is meant only to invoke the best of anti-capitalist tradition. In time we will adopt a new name or names for this cluster of values, preoccupations, and analytics, whether “democratic socialism,” “advanced social democracy,” “radical democracy,” “post-liberal democracy,” or whatever.
I am interested in the interface between anti-capitalist politics (understood from the perspective of heterodox post-Marxism and non-Marxist critical social theory) and anti-formalist legal theory. (I brought my vintage ‘sixties New Leftism to law school with me in the 1970s just in time to participate in the birth of Critical Legal Studies and its rediscovery and radicalization of American Legal Realism.)
Anti-capitalist tradition offers two main ideas to the jurisprudence of distribution.
Our goal should be more caring and solidaristic forms of social coordination that will better enable us to treat other humans as moral agents entitled to respect and self-determination rather than just as means to satisfy our ends.
First, our political horizons must reach beyond the contemporary left’s two great preoccupations – mutual recognition and distributive justice – toward new and qualitatively better ways of living. Our goal should be more caring and solidaristic forms of social coordination that will better enable us to treat other humans as moral agents entitled to respect and self-determination rather than just as means to satisfy our ends. This entails providing all people with the socio-economic conditions necessary to authentically experience self-realization. This is not simply a question of ameliorating material inequality, maldistribution, and absolute deprivation but of confronting and undoing the power-relations that generate and entrench them.
Humans lose touch with their agency in shaping the world. They come to experience their lives as largely determined by forces beyond their control. Socialists believed that this has something to do with the structure and power-relations of existing societies. They aspired to transcend alienation: to recover and nurture our self-realizing capacities, to end exploitation and illegitimate hierarchy, to reduce coercion in social life to the extent possible, and latterly to accomplish this in a sustainable, harmonious relationship with nature. Twentieth century political events leave us skeptical about the possibility of a complete end to alienation. In our postmodern condition we doubt that the webs of significance in which we are embedded and the practices in which we are engaged can ever be fully transparent to us. But surely we can do better than we are doing now.
Second, however fervently it is to be desired, the extension of liberal democratic politics, representation, civil rights, and formal equality to the working class, subordinated identities, and other oppressed groups will not by itself bring about more solidaristic, more participatorily-democratic, less estranged ways of living. Representation and liberal political rights are necessary but insufficient to achieve distributive justice, abolish illegitimate domination, and establish the social preconditions of human self-determination. Such will require not only massive economic redistribution but also some as yet unchartered structural, cultural, and psychological transformations, in both the civic and private spheres. It is a question of contesting domination and potentiating freedom in every dimension and space of life.
As for critical legal theory, these are the key, relevant ideas:
• Legal rules, practices, and outcomes are underdetermined by legal reasoning, and likewise they are undetermined by social structure, ideology, interest, and identity.
• Legal rules and practices often play a significant role in constructing social life, institutions, and experiences. They dispose distributive stakes in the transactions, relationships, and institutions that implicate the pursuit of well-being. They dispose cultural and ideological stakes by contributing to the store of culturally available symbols, artifacts, and relationships that comprise the medium in which people interpret their experiences.
• Accordingly, interrogation of and contestation over legal rules and practices opens transformative possibilities.
Marx grasped that economic relationships are legally and culturally constructed, but he remained a legal formalist, never got the indeterminacy point, and therefore greatly underestimated capitalism’s capacity for flexible adaptation.
We could use more effort at systemic thinking, but this must be accomplished without abandoning the insights of critical, indeterminacy theory. Socialism erred in imagining that emancipatory ways of life can be achieved by replacing existing institutions and practices with new ones, brought in from the outside (so to speak). Marx grasped that economic relationships are legally and culturally constructed, but he remained a legal formalist, never got the indeterminacy point, and therefore greatly underestimated capitalism’s capacity for flexible adaptation. Socialist and other emancipatory traditions assumed that the old social practices – capitalist exploitation, systemic racism, patriarchy, heteronormativity – are each expressions of a deep and internally coherent organizing principle (such as private ownership of the means of production or white supremacy). They yearned to believe that we can extricate ourselves from all that by substituting new institutions and practices that would be given to us by alternative but equally fundamental and coherent organizing principles (such as public ownership or anti-racism). The founding fathers of socialism imagined that new forms of social coordination would arise spontaneously from the grass roots or, alternatively, arrive on the grand day when the oppressed would take political power by democratic election or proletarian seizure. But institutions, practices, and ways of life cannot be replaced. They must be reconstructed through countless, always provisional, local contestations. Apart from hopeless naïveté about the generations of cultural change that must occur, the socialist notion of transformation wrongly assumed that freedom comes with ready-made, in-built steering principles that can determine its institutional and legal instantiations.
My conclusions are:
First, formalism, liberal legalism, rights-fundamentalism, and similar approaches that treat law as an unproblematic working out of first principles greatly understate the complexity of legal practices, thereby depriving us of access to transformative opportunities and possibilities in legal work. Second, we must equally avoid political and philosophical formalism. Our ideals give us direction and moral intuitions, but in fighting for a better world, there is no escape from endless, thickly contextualized conflicts, choices, tradeoffs, and uncertainties.