03 April 2018

Mark Tushnet Hops in the Hot Tub Time Machine

I can assure folks that I have never seen the 2010 comedy "Hot Tub Time Machine" where three middle-age buddies get into a hot tub and come out in their youthful heydays in 1986.  I am reasonably confident Harvard law prof Mark Tushnet hasn't seen it either. Yet Tushnet's essay, Critical Legal Studies and the Rule of Law (download here) brought the movie to mind.

Critical Legal Studies (CLS) were, so I thought, a relatively short-lived phenomenon in the legal academy that began in the late 60's and had pretty much petered out by the mid-80's. CLS purported to be a radical critique of law in America. Subjecting all modes of then-contemporary schools of legal thought, dominated by various strands of liberalism, to criticism in terms of vaguely defined "ideology" permitted the Crits to assume to successively more radical postures of "no one before me knew what was really going on" in America. Their discovery? Law had been merely a means of oppression by Those With Power.

While notoriously short on actually prescriptions of what the law should be (or at least cogent arguments for their preferred solutions), CLS enabled a generation of graduates from some of America's elite law schools to disregard notions of fidelity to texts or history or even (dismissively termed Western, imperialist) notions of logic in argumentation or honesty in legal discourse. Taking some forms of Legal Realism to their logical end, manipulation of the law in the service of the powerless was not a problem because Those With Power had been doing it since time immemorial. Tu quoque writ large.

CLS fell from its perch of prominence for several reasons. First, it had little on-the-ground utility when compared to the more fine-grained tools of analysis provided by law and economics. Second, CLS could be understood as an elite form of virtue-signalling designed to let folks who actually suffered from deep-rooted oppression know that the Crits were on their side--and permitting CLS-influenced graduates to gain and hold the levers of power with a clean conscience. Third, many of the Crits seemed not to have spent time coming to grips with the European philosophers of the Frankfurt School whose names they would cite in support of their program of radical skepticism about the law. And finally, CLS didn't interact meaningfully with the resurgence in Conservative (virtue-centered) legal criticism. In other words, addressing oppression and victimization is all well and good but what about doing so in terms of capital-J Justice?

Thus, Tushnet's piece provides a means to discover afresh what adjective I think best characterizes CLS thirty years on: banal. In his essay Tushnet takes issue with the valorization of the concept of the rule of law by organizations like the World Justice Project. Tushnet does a good job of explaining the historical origins of CLS and notes that its proponents never wrote much about the concept of the rule of law. Why? Because the rule of law was a plank in the platform of mid-20th century liberalism and mid-20th century liberals hadn't done enough to further the Civil Rights movement and--more importantly--had taken America into the war in Vietnam. "And, because they [the Crits] found that landscape unattractive, they were interested not in examining the rule of law on its own terms, but only in examining it as an ideological project." In my words: CLS represented the New Left movement described by Italian philosopher Carlo Lancellotti here.

Then, and now in Tushnet's piece, the bogeyman of CLS is "ideology." Rarely clearly defined, ideology functioned for Crits much like "worldview" does for conservative Evangelicals (here, here, and here): a simplified grid that works as a preemptive take-down of everyone else and frees its users from the need to consider deeply the arguments of those whose positions they reject on pre-theoretical grounds. In this respect CLS can be distinguished from the remnants of Old Left like Margaret Radin who still make principled arguments for her conclusions. (Go here, here, and here for my three-parter on Radin's work on "contract degradation.")

To be fair, Tushnet's essay is only thirteen pages and shouldn't be expected to do the work of a lengthy article. And within those pages Tushnet does a fine job of poking holes in the thin mid-20th century proceduralist arguments. The Crits were correct to observe that there's more to the rule of law than "generality, publicity, and prospectivity." Under such a standard one could plausibly argue that the Soviet Union and even Nazi Germany enjoyed something approaching the rule of law.

The added sauce is not, however, an undifferentiated ideology of redressing imbalances of power. The rule of law requires that the relevant law be measured against a standard of justice and without prolonging this post I submit that it was the failure of CLS to ground justice in more than hand-waving in the direction of New Left ideology that ultimately accounts for its banality.

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