Book Reviews
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1111/j.1467-6478.2003.00272.x |
| Published date | 01 December 2003 |
Book Reviews
IDEOLOGY AND COMMUNITY IN THE FIRST WAVE OF CRITICAL
LEGAL STUDIES by RICHARD W. BAUMAN
(Toronto: University of Toronto Press, 2002, 257 pp., £42.00 (hbk) £18.00
(pbk))
A quarter century after the emergence of critical legal studies, Richard
Bauman offers a liberal critique. I am not interested in defending or attacking
CLS or liberalism. Nor am I among the `legal academics chagrined that their
work is not discussed prominently, or perhaps not cited at all'
1
(it wasn't).
Although I was a founder and long a member of the organizing committee,
helped plan the Los Angeles meeting `The Sounds of Silence' at which
critical race theory took centre stage, and contributed to David Kairys's The
Politics of Law, I was always marginal to CLS: an empirical social scientist
rather than a legal theorist, an unreconstructed materialist not tempted by
fancy French theory. I am sure others better qualified to join the debate over
liberalism will give Bauman's thoughtful book the serious attention it
deserves. Instead, I will use it as an occasion to reflect on what he calls the
four defining characteristics of CLS ± the impossibility of separating law and
politics, the centrality of legal consciousness, the irreducible contradictions
and hence indeterminacy of legal doctrine, and the refusal to imagine future
societies ± and then speculate about the contemporary significance of CLS.
There is a long tradition in American jurisprudence of insisting on the
separation of law and politics: Felix Frankfurter's constricted view of his
role as a Supreme Court Justice,
2
Herbert Wechsler's attack on Brown v.
Board of Education
3
in the name of `neutral principles,'
4
Alexander Bickel's
praise for the `passive virtues' of what he thought should be `the least
dangerous branch,'
5
Henry Hart's and Albert Sacks's elevation of process
over substance.
6
There were many reasons for this delusion. It may not be
incidental that all those named above were sons of Jewish immigrants who
had successfully climbed into elite worlds ± the legal profession and
academia ± that were still openly anti-Semitic (the Ivy League had Jewish
601
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350 Main Street, Malden, MA 02148, USA
1 Bauman, p. 5.
2 See, for example, M.V. Tushnet, Making Civil Rights Law: Thurgood Marshall and
the Supreme Court, 1936±1961 (1994).
3 347 U.S. 483 (1954).
4 `Toward Neutral Principles of Constitutional Law' (1959) 73 Harvard Law Rev.1.
5The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
6 H.M. Hart and A.M. Sacks, The Legal Process: basic problems in the making and
application of law (1958).
quotas until the 1960s; even the Supreme Court could have only one Jewish
member).
7
The view of law as apolitical was, of course, consistent with even
narrower English and Continental conceptions of courts' limited role.
Americans also emphasized their anti-majoritarian character (while ignoring
the corruption of electoral politics by money and the distortion of legislation
by lobbying).
8
The judiciary's tendency to frustrate the popular will had
been all too obvious throughout the first half of the twentieth century, as both
state and federal courts struck down progressive economic legislation.
9
The
Supreme Court's post-war interpretation of civil rights and liberties exposed
it to political attack: no one driving American highways outside the `effete
intellectual' Northeast in the '50s and '60s could have missed the `Impeach
Earl Warren' signs. Liberals hoped the Court would advance their agenda
but believed it could do so only if it successfully masqueraded as value-free.
CLS viewed the pretence of apolitical legality as a particularly distasteful
manifestation of 1950s hypocrisy. The legal realists were our heroes: Oliver
Wendell Holmes, Jr. (`the life of the law has not been logic, it has been
experience',
10
`the prophecies of what the courts will do, and nothing more
pretent ious, are w hat I mean by t he law'
11
), Benjam in Cardoz o's
sociological method of judicial decision making,
12
Karl Llewellyn's cynical
acid,
13
even Jerome Frank's (crude) Freudian reductionism.
14
(I wrote a
paper for Wolfgang Friedmann in 1963 assailing Wechsler's ne utral
principles ± although he had taught me constitutional law and was to teach
me federal courts.) We deplored the post-war era's loss of nerve, its legal
orthodoxy as stifling in a way as McCarthyism had been in the political
domain. Indeed, there were echoes of McCarthyism in Paul Carrington's call
on crits to resign from law faculties, the boasts by some deans that no crit
would ever cross the thresholds of their law schools, and tenure denials at
Harvard, New England, and Pennsylvania (among others).
It is hard to believe that crit insistence on law's inescapably political core
ever provoked dissent, much less condemnation (though I know it still does).
We are all crits now (just as we are all legal realists, and Keynesians). A
Supreme Court boldly `interpreting' a written constitution to nullify
602
7 R. Burt, Two Jewish Justices: Outcasts in the Promised Land (1988); J.S. Auerbach,
Rabbis and Lawyers: The Journey from Torah to Constitution (1990).
8 In the domain of torts, I have argued, courts consistently do a better job of protecting
the public interest than legislatures captured by special interests. `Questioning the
Counter-Majoritarian Thesis: The Case of Torts' (1999) 49 DePaul Law Rev. 533.
9 In addition to the Supreme Court's obstruction of the New Deal until Roosevelt
threatened to pack it, for example, C.H. Pritchett, The Roosevelt Court: A Study in
Judicial Politics and Values, 1937±1947 (1948), see, for example, Ives v. South
Buffalo Ry. Co., 94 N.E. 431 (N.Y. 1911) (striking down workman's compensation).
10 The Common Law (1881).
11 `The Path of the Law' (1897) 10 Harvard Law Rev. 457.
12 The Nature of the Judicial Process (1928).
13 Jurisprudence: realism in theory and practice (1962).
14 Law and the Modern Mind (1930).
ßBlackwell Publishing Ltd 2003
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