Detail from an installation, The Ten Commandments, at Deitch Projects in New York City by Keith Haring, 2009 (original panels 1985). Photo by 16 Miles of String.
CRITICAL LEGAL STUDIES AS A SPIRITUAL PRACTICE, PART ONE
by Peter Gabel
I assume that I was asked to speak on a panel entitled “The Higher Law and Its Critics” because the organizers of this conference believed that as a Critical Legal Studies (CLS) founder and writer, I’d debunk the idea that there is any higher law. They likely felt that CLS stands for the idea that law and the interpretations of law are just an expression of social power, and that any claim that there exists a higher law which the existing legal world somehow exists in relation to would just be regarded by CLS as a form of ideology– mystifying, masking, and rationalizing existing power relations in society.
So let me start by saying that while appeals to a Higher Law certainly can be used to rationalize unjust power relations, I do not at all believe that they must do so; and even more, that I believe CLS was always fundamentally a spiritual enterprise that sought to liberate law and legal interpretation from its self-referential, circular, and ideological shackles. The CLS movement, after all, emerged in response to the moral intensity of the broader social movements of the 1960s, and was an attempt to join forces with the civil rights movement, the anti-war movement, the women’s and workers’ movements to challenge the status quo on behalf of a higher moral vision of what human relations could be like–a vision of a world in which people treated each other with true equality and respect and affection and kindness, and in which people saw each other as fully human and beautiful, rather than as cogs in a machine or as self-interested monads out for their own gain or as any of the other ways of characterizing human beings that seemed to be commonplace within the system as it was. In CLS, we were against the inhumanity of the system as it really was and as it really functioned, and we were against the existing legal system to the extent that it sought, consciously or unconsciously, to rationalize the inhumanity of the existing social world and call it something good, the embodiment of liberty and equality.
Thus there was always a spiritual impulse behind the work and the politics of CLS. But it is absolutely the case that CLS–or at least what came to be known as the dominant strain within CLS–refused to embrace this transcendent spiritual impulse, to stand behind it, or to speak about it. We really were motivated by love, but it was a love that dared not speak its name. And in my opinion, that is because our movement was infected with the same fear of the other that underlay the injustices that we criticized in the wider society. We were motivated by a powerful moral transcendent impulse that was an expression of what this conference is calling a Higher Law, but we would not say so, or to be honest, some of us would not say so. On this point, there was a division inside CLS, and in my opinion the wrong side carried the day–but today is another day.
The view that won out inside CLS is what became known as the indeterminacy critique–the idea that legal principles are so abstract and indefinite that they can be used to rationalize virtually any outcome. The literature of CLS has produced hundreds of articles demonstrating this point, [FN1] but an excellent example not cited so far as I know in existing CLS writing is the legal opinions produced during the rise of the Nazi movement in Germany, in which conventional liberal legal doctrines were reinterpreted by the judiciary to be made consistent with the ideology of the ascendant Nazi party. Thus the German equivalent of the doctrine of “good faith” in landlord-tenant contracts was interpreted not to prevent the otherwise illegal eviction of Jews because Jews were threats to the German people. [FN2] Using the indeterminacy critique, CLS writers showed in article after article that just as the eviction of Jews could be made consistent with contractual good faith, virtually any legal argument could be made consistent, via the open-ended nature of legal interpretation, with virtually any legal outcome. That being so, the actual explanation of legal outcomes must come from outside of legal reasoning itself–from the realm of politics or conviction or commitment to particular values on the part of the person or group doing the interpreting. And wonderful CLS writers like Duncan Kennedy, Mark Tushnet, Gary Peller, or Betty Mensch [FN3]–who contributed to this discussion at the Higher Law Symposium–showed that it was no answer to this critique to find some other supposed “anchor” for legal reasoning in the political or moral principles of the wider society that would shape the legal thought-process–for these political and moral principles could always be shown to be just as abstract and indefinite in their concrete meaning in any particular case and therefore just as indeterminate in their application.
There was much to be said for the indeterminacy critique as an analytical technique that could help a new generation of legal intellectuals and law students to challenge the authority of received justifications for the status quo, especially the authority of those who claimed that things had to be the way they were in late twentieth century capitalist society because the rule of law required it to be so. Many a law student who had come to law school with a longing to contribute to the creation of a more humane and just world had been subtly talked out of their idealism by sophisticated law professors who were better at manipulating concepts than they were and could use the power relations of the law school classroom to make their instinctive idealism appear naïve or childish or dumb. Armed with the indeterminacy critique and backed by the solidarity of other writers, teachers and students who shared their transformative aspirations, these same students could better stand up for themselves and demonstrate that their professors’ pretensions to superiority of reasoning amounted to no more than a preference for the existing system. Certainly a fifty-page opinion by Justice Scalia in his black robes is far less humbling to the radical spirit if one can show that all of its weighty argumentation and compilation of precedential authority amount to no more than a statement by the writer that “I like capitalism.”
But there was a major problem with the indeterminacy critique–namely, that it was a headless horseman, an analytical method without moral content that could not itself point the practitioner in any moral direction. Like all analytical critiques that rely upon logic to challenge claims to conceptual rationality, the indeterminacy critique is indifferent to the meaning of its object–it employs its scalpel at a distance from whatever may be morally compelling about a claim and satisfies itself with the assertion that a claim purporting to be logically valid is actually not so.
This creates three problems that, in my view, are decisive. First, the logical indeterminacy of abstract concepts, legal or otherwise, does not take account of the power of the moral environment in which such concepts exercise social force. To the extent that human beings are inherently moral beings animated by the longing for meaning and the desire to live in a better, more morally resonant world, the power of law and legal concepts will depend upon the social forces that give weight to a particular moral vision and related moral ideas at particular historical moments. If a particular worldview gains sway by virtue of its socially-anchored moral resonance, then the legal arguments that follow from that worldview will be heard and understood as logical to those who embrace the moral dimension of the worldview whether or not the arguments are logically compelled in the abstract. The Supreme Court’s decision in Bush v. Gore deciding the 2000 presidential election seemed to many scholars to validate the indeterminacy critique [FN4] because the Court’s reasoning to the result it wanted seemed to almost randomly change between its first decision (based on Article II’s reservation of power to the State legislatures to choose electors to the Electoral College), [FN5] and the second final decision terminating the Florida vote-count on the grounds of the Equal Protection Clause. [FN6] In addition, the final decision seemed to contradict the Court’s new-federalist deference in other opinions to a state’s right to manage its own elections within broad parameters that should have included the then-unfolding Florida recount. [FN7] But as I showed in What It Really Means to Say Law is Politics: Political History and Legal Argument in Bush v. Gore, [FN8] the significant fact is that the decision was found acceptable by Gore and his constituencies in spite of all the grumbling because of historical factors–including, the rise of Ronald Reagan, thirty years of conservative ascendancy in political and legal thought, and the collapse of the Soviet Union and parallel collapse of any worldwide public sphere in which morally compelling democratic social movements could challenge conventionally legitimated democratic institutions–that made the Supreme Court’s decision plausible enough to the moral self-understanding of the then-existing national constituency. [FN9]
Reduced to a sentence, this is to say that the indeterminacy critique, because of its very abstraction and disconnection from immanent meaning, cannot reach what is morally compelling about a legal argument and, therefore, cannot negate the argument to a really existing historical listener anchored in a web of real social relations.
The second problem with the amoral nature of the indeterminacy critique is that to the extent that human beings are moral beings decisively animated by the longing for meaning, purpose, and a better world, the indeterminacy critique cannot convey a moral vision of how we are to create such a world and therefore cannot gain any true adherents. In other words, the indeterminacy critique is basically a bummer, leaving the listener in a kind of secular liberal hell of scattered and disconnected individuals with no common passion or direction binding us together. Not only did this erasure of moral purpose disarm the CLS movement of its most compelling spiritual feature–namely its link to a powerful, transformative vision of a socially just world–it also seemed to dismiss as unimportant, and even trivial and misguided, the experience of moral dislocation, social isolation, and meaninglessness that is precisely the most spiritually painful aspect of modern liberal culture. While a few writers tried to justify CLS’s “nihilism” as a bracing affirmation of freedom, emphasizing that the critique was only a critique of the authority of reason and not of strongly held, freely affirmed values, [FN10] this defense simply cast the listener back into the spiritual void of his/her liberal solitude rather than purposefully pointing the listener forward toward the moral world that would finally connect us.
The third and final problem with the valorization of the indeterminacy critique and its preeminence within the CLS movement is that it could be and was used against the movement’s own spiritual commitments. Although conservatives were fond of caricaturing CLS writers as a group of radical cynics who didn’t believe in anything, [FN11] most were just the opposite–wonderful, loving, caring people committed to helping others and changing the world in accordance with a moral devotion to mutual affirmation and social equality. But the indeterminacy critique prohibited them from saying so in a universal, visionary language because any such discourse was itself indeterminate, and could be stolen away by the Other and used to rationalize domination. Backed up by Derrida’s in-fashion critique of “phallologocentrism” [FN12]–the historical tendency of abstract male-dominated ideologies to marginalize and dismiss the insights of minority cultures–some CLS writers would just make fun of those of us whose critique of law and legal culture was rooted in a substantive, moral vision of community and equality, as if we failed to grasp that the same critique we ourselves had embraced–the use of abstract universals to legitimize the injustices of liberal society–could be used against ourselves. Did we not see that the Devil can cite scripture for his/her purpose and that any universal ideal with which we purported to ground our critique of law could be used to justify the opposite of the meaning we sought to give it? How did we think that an ideal of spiritual community could be the “basis” of anything at all, since it could as easily entail a society of crystal-gazers or religious fundamentalists as it could the loving and egalitarian world to which we aspired?
It is worth pausing for a moment on this last point because it contains an epistemological confusion–or at least a difference of opinion and orienting attitude toward knowledge–that establishes the groundwork for my turn to a discussion of the existence of a Higher Law and a turn to what could give meaning to a rebirth of Critical Legal Studies as the spiritual practice that I am claiming it always was.
When the practitioner of the indeterminacy critique rejects the idea that an abstraction, like “spiritual community,” can be the “basis” of a critique of the status quo, citing the indeterminacy of the meaning of the abstraction, he or she is thinking within the analytical epistemology embedded in the indeterminacy critique itself–as if the relationship of the abstraction to the concrete manifestation, or the universal to the particular, is a relationship of logical entailment of a concept. Thus from this point of view, the critique of the liberal ideals of freedom and equality that are embedded in all of American law is that their very abstract and universal nature can be manipulated in a way that allows the concrete meaning of these ideals to legitimize the unfreedom and inequality of free market capitalism. The critique is that in liberal society, freedom equals free competition and equality means equality to compete in a universal marketplace that actually reproduces, in real life, the inequalities of class society and the unfreedom of servitude to hierarchy. From this truth (and other analogous ones that can be drawn from the concrete histories of pre-liberal societies, from socialism as actualized in socialist societies, and so on across and throughout history), the indeterminacy practitioner concludes that all abstract universals are similarly manipulable and subject to the same logical abuses in the service of legitimation. Because the indeterminacy critique begins and ends in an attitude of moral detachment from its object and analyzes the unfolding of the object through its merely possible logical expressions, the critique rejects a priori (in other words, as a matter of “belief” and not on the basis of its own critique!) that there could be moral “essence” to the object that gives moral direction to the critique of, say, the liberal conceptions of freedom and equality.
The paradox here is evident and refers back to my initial comments: for CLS is and was animated by a vision of overcoming the inhumanity and injustice of the world, and not by mere analytical cleverness or skill at deconstructing concepts. Caught in the epistemological straight-jacket of their own making, the proponents of the indeterminacy critique managed to make themselves unable to offer any “basis” for their own passionately held moral starting point, declaring that these motivating convictions were “irrational” and outside the realm of rational knowledge, like the relationship of chaos theory to normal science. [FN13] Far from being a bad thing, these CLSers believed that this irrationalism would protect the critical aspect of critical legal studies from absorption into falsifying rationalistic ideologies and maintain a liberated free-space for political action in support of their irrationalist convictions. The politics of this position was then that there should and could be a public, democratic debate among competing convictions–left, right, and center–about what kind of social world and what kind of legal culture we humans should be aspiring to create, a debate unburdened by any transcendent moral claims which appeal to a non-existent, or at least unknowable, transcendent moral authority whose very investiture with social power would reproduce our subordination to some Other that would not be ourselves.
Unfortunately, the validity of this view rested on a “belief” about the very nature of social reality that is, with all due respect to my long-time comrades who hold it, wrong. For the world, as it really is, is suffused with moral longing that pulls upon the conscience of humanity to elevate ourselves from the limitations of what is, toward the realization of what ought to be, and the evocation of precisely that longing has been the decisive force behind every social movement that has advanced the development of humanity toward a loving and humane common existence since the beginning of time. It is equally true that the appeal to this moral longing has been the basis for terrible injustice and suffering. But this struggle over the way forward is a moral struggle anchored in the capacity of every one of us to manifest ourselves to each other in a way that points us in the right direction. A successful critical approach to the present–or in the case of law, to a successful critical legal studies–requires the illumination of the injustice of what is, that is anchored in a transcendent intuition of the just world that ought to be.
Peter Gabel is former President and Professor of Law at New College of California and is Associate Editor of Tikkun magazine. He is also Co-Director with Nanette Schorr of the Project for Integrating Spirituality, Law, and Politics.
Peter Gabel thanks Duncan Kennedy, Michael Lerner, Michael McAvoy, Gary Peller, and Matthew Wilkes for helpful comments and criticisms.
This piece was originally published in a special issue of the Pepperdine Law Review, Vol. 36 (2009).
1. See, e.g., Duncan Kennedy, A Critique of Adjudication (fin de siecle) 84 n.16, 348 n.5 (Harvard Univ. Press 1997). For a sophisticated recent statement of the indeterminacy position emphasizing that legal materials are always mediated by the strategic work of interpretation and therefore have no determinate existence “in themselves,” see Duncan Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation, in Legal Reasoning: Collected Essays 153 (Davies Group 2008).
2. See Die Justiz im Dritten Reich, May 30, 2006, http:// www.123recht.net/printarticle.asp?a=16764 (citing a 1936 Berlin civil court case justifying eviction on grounds that being Jewish “undermined the strength of the tenant-house community”).
3. Elizabeth Mensch, Cain’s Law, 36 Pepp. L. Rev. 541 (2009).
4. See Sanford Levinson, Bush v. Gore and The French Revolution: A Tentative List of Some Early Lessons, 65 Law & Contemp. Probs. 7 (2002).
5. Bush v. Palm Beach County Canvassing Bd. (Bush v. Gore I), 531 U.S. 70, 71 (2000).
6. Bush v. Gore (Bush v. Gore II), 531 U.S. 98, 98 (2000).
7. See, e.g., id. at 135-44 (Ginsberg, J., dissenting).
8. 67 Brook. L. Rev. 1141 (2002).
10. See generally Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984).
11. See Richard A. Posner, The Problems of Jurisprudence 83 (2007); Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222 (1984); Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stan. L. Rev. 413, 433-34 (1984).
12. See Jacques Derrida, Dissemination 75-84 (Barbara Johnson trans., University of Chicago Press 1983).
13. See, e.g., Clare Dalton, The Politics of Law, 6 Harv. Women’s L.J. 229, 234-48 (1983) (book review).