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August 9, 2007

Why Marx Would Have Despised "Critical Legal Studies"

[Originally posted July 28, 2004 at Leiter Reports]

It has long amused me that many inside and outside law think of "Critical Legal Studies" as a Marxist movement. Plainly, within the parochial context of American life, any ideas on the "left" are viewed as Marxist, but in this case the association is particularly wrongheaded. Herewith what I wrote on the subject in my review essay of Neil Duxbury's philosophically feeble Patterns of American Jurisprudence in the summer 1997 Oxford Journal of Legal Studies:

CLS writers...locate the source of "indeterminacy" in law in one of two sources: either in general features of language itself (drawing here--not always accurately--on the semantic skepticism associated with Wittgenstein and Derrida ); or in the existence of "contradictory" moral and political principles that they claim underlie the substantive law, understood at a suitable level of abstraction. Duxbury himself recognizes this strand of CLS, which he aptly describes as claiming, "...that liberal consciousness is somehow a false or corrupted consciousness, that there exists within liberal thought--liberal legal thought included--a tension so fundamental, so irresolvable, that it must ultimately implode and make way for radical social transformation." (455) This strategy of argument signals the rather curious intellectual pedigree of CLS, a pedigree that Duxbury does not appear to recognize. [Ed.-Most CLS writers don't appear to recognize it either, though I'm sure Unger knows!] For what CLS has done in American legal thought is to revive a certain strategy of left-wing critique that dates back to the Left Young Hegelians of the 1830's in Germany.

Seizing upon the Hegelian notion that ideas are the engine of historical change, the Left Hegelians sought to effect change by demonstrating that the prevailing conservative ideas were inherently contradictory and thus unstable. To resolve these contradictions, it would be necessary to change our ideas, and thus change the world. This strand of Hegelianism was a dead issue by the 1850's--in part because of Schopenhauer's devastating anti-Hegelian polemics, in part because of Marx's criticisms (about which more below), and in part because of the more general "materialistic" and "positivistic" turn in German intellectual life associated with Feuerbach and the so-called "German Materialists." It was not revived until 1922 when Georg Lukács re-introduced Left Hegelian themes into the Marxist tradition of social critique in History and Class Consciousness, especially in the central chapter on "The Antinomies of Bourgeois Thought." CLS, however, acquires the style of argument less from Lukács--though he is a favorite figure in the footnotes of CLS articles--than from Harvard Law School professor and CLS "founding father" Roberto Unger, whose 1975 book Knowledge and Politics is quite obviously a replay of the central arguments and themes of History and Class Consciousness.

What is slightly ironic in this intellectual genealogy--one that most CLS writers seem only vaguely aware of--is that CLS should have revived precisely the tradition in left-wing thought that Marx had so viciously lampooned 150 years earlier! Indeed, with certain obvious emendations, we find Marx and Engels articulating (in The German Ideology ) a critique one often hears, with some cause, of CLS:

"Since [the Crits] consider conceptions, thoughts, ideas, in fact all the products of consciousness...as the real chains of men...it is evident that [the Crits] have to fight only against these illusions of the consciousness. Since, according to their fantasy, the relationships of men, all their doings, their chains and their limitations are products of their consciousness, [the Crits] logically put to men the moral postulate of exchanging their present consciousness for human, critical or egoistic consciousness, and thus of removing their limitations. This demand to change consciousness amounts to a demand to interpret reality in another way, i.e., to recognize it by means of another interpretation....They forget, however, that to these phrases [constituting the old interpretation] they are only opposing other phrases, and that they are in no way combating the real existing world when they are merely combating the phrases of this world."

Showing the right-wing professors that their ideas are incoherent and demanding that they change their ideas is politically irrelevant for Marx: it is, of course, "contradictions" in the material circumstances of life that are the real engine of historical change. What CLS has done is to revive precisely this discredited strand of critical theory--the critique of ideas or "consciousness"--in the legal domain. It is not obvious that these critiques are any more plausible or relevant now than they were in 1840.

Posted by Brian Leiter on August 9, 2007 in The Continental Traditions | Permalink

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