Book Reviews
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00157 |
Book Reviews
A CRITIQUE OF ADJUDICATION (FIN DE SIE
`CLE) by DUNCAN
KENNEDY
(Cambridge, Mass.: Harvard University Press, 1997, 424 pp, £29.99 (hbk);
1998, £14.50 (pbk))
Duncan Kennedy’s Critique of Adjudication is a lively, accessible and, at
times, deliciously irreverent book. It is also a very serious scholarly attempt
to explore and theorize the adjudicative process in North America. The book
is a culmination of many years work by a scholar who (and I hope he will
forgive me) has been around long enough to have picked up a few things
worth saying. Therefore, even if one disagrees with his thesis about the
character and implications of judicial decision-making (and thesis there is),
one cannot fail to find much in this book that is interesting and informative,
not to mention stimulating, thought-provoking and, occasionally, out-
rageously provocative. Apart from anything else, it is a wonderfully clear
account of the intellectual premises underlying much of the work
characterized in American legal scholarship as ‘CLS’, an account which
locates CLS scholarship historically (as the intellectual inheritance of the
American Realist movement), politically (as a particular version of the ‘left
project’ which Kennedy styles as ‘left/mpm’
1
) and, finally, theoretically, that
is in terms of CLS’s relationship with Marxist, Weberian, and other social
theoretical traditions (see, in particular here, chapter 11). The book also
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1 Where ‘mpm’ stands for ‘modernism/postmodernism’. Kennedy fleshes out the
political contours of this stance at various points in the book, seemingly combining a
perception of injustice derived from the social privileging of some interests over
others, with a rejection of attempts systematically to explain or track this privileging,
other than in terms of mechanisms, such as law, which contribute to it. This rejection
of ‘totalizing’ social theories is accompanied by a sceptical ‘attitude to rightness’ (p.
341), an adapted notion of objectivity as ‘revelation’ (pp. 14–18), and an ‘ethos of
post-ness’ (p. 339) in which critique is deployed in order to induce ‘the modernist
emotions associated with the death of reason – ecstasy, irony, depression and so forth’
(p. 342). The concrete political prescriptions flowing from Kennedy’s left/mpm
position include: ‘localised’ interventions aimed at disrupting and delegitimating
those mechanisms, such as law, which produce/constitute the belief systems
underpinning various forms of injustice; and seeking to bring about fairer and more
equitable rule changes by exploiting the uncertainties of the legal process. The
potential conflict which can arise from the dual pursuit of delegitimation and reform
strategies at the same time is identified as ‘the dilemma of liberal legalism’ (pp. 113–
17) and Kennedy’s theory of adjudication is, in part, offered as a response to this
dilemma.
includes an excellent discussion of the ‘rights critique’ in CLS and the
subsequent ‘critique of the critique’ offered by feminists and critical race
scholars (chapters 12 and 13), in which Kennedy endeavours to explain how
the continued deployment of rights arguments in legal discourse is not
inconsistent with a ‘loss of faith’ in rights ontologically.
The book is well structured and signposted throughout so that, although
densely argued and full of (generally highly diverting) sub-themes, one can
usually find one’s way back to the main thread of the argument without
much difficulty. Kennedy’s main contention is that the adjudicative process
in the United States of America is best understood as a site for the disposal of
‘ideological stakes’, and the persistent denial (in the psychoanalytical sense)
2
of this by the legal and political establishment has consequences in terms of
the impact of adjudication on the political system. Thus, Kennedy’s focus is
not just on the ideological character of judicial decision-making but also on
the political consequences of the widespread failure to acknowledge this.
It might be tempting to dismiss Kennedy’s claims as banal, yet another
variation of the oft-repeated left truism that ‘law is political’, but that would
be wrong. Kennedy’s book is a serious endeavour to explain precisely and in
what ways law (or, rather, the adjudicative process in the United States) is
political; at the same time it is a remarkably canny account of ‘lawyering’ –
of how legal arguments are constructed, hierarchically arranged, and
successfully deployed. His highly analytical account of key concepts in
the legal advocate’s armoury – deductive reasoning, policy, ideology,
coherence, rights – effectively captures the narrative and representational
techniques which lawyers deploy in the courtroom, and judges in their
opinions. Kennedy’s picture of the adjudicative process is convincing
because it corresponds strongly with our sense of ‘what is really going on’.
As a consequence, students will learn a lot more about what ‘lawyering’
entails from reading Kennedy than Dworkin.
Kennedy combines his practical sense of law as a series of tactical
manoeuvres with a highly theoretical analysis of the intersection of law and
politics in the judicial decision-making process. Invoking a notion of
ideology
3
as:
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2 Kennedy’s notion of ‘denial’ is elaborated at some length (pp. 191–212) but
essentially comprises of a characterization of judges as ‘bad faith’ actors who deny,
even to themselves, that they do ideological work. This denial is not a deliberate,
conscious misrepresentation; it is rather a ‘half-conscious’ (‘the ego wills its own
unconsciouness’ (p. 200)) ‘refusal to acknowledge’ the nature of the process in which
they are engaged.
3 Kennedy takes pains to distinguish his notion of ideology as a universalization project
of (particular groups of) the intelligentsia from the neo-Marxist invocation of
‘ideology’ as the appearance which masks the underlying truth. In other words, he
rejects the notion that there is something ‘behind’ ideology which ‘causes or explains
it’ (pp. 290–6). The political implications of this position are considered further
below.
ßBlackwell Publishers Ltd 2000
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