REVIEWS
| Published date | 01 May 1984 |
| Date | 01 May 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01657.x |
REVIEWS
CRITICAL LEGAL STUDIES
THE POLITICS
OF
LAW. Edited by DAVID KAIRYS.
[New
York: Pan-
theon Books. 1982. x and 321 pp. Paperback $9-95.1
LAW, STATE
AND
SOCIETY. Edited by
BOB
FRYER, ALAN HUNT,
DOREEN MCBARNET and BERT MOORHOUSE. [London: Croom
Helm. 1981.234 pp. (including name index). Hardback €14.95.1
THE
idea
of
“critical” studies in. the social sciences is by no means new.
After all, critical theory as associated with the work
of
Jurgen Habermas
and the Frankfurt School’ and, more narrowly, critical criminology’ are
already plotted on the theoretical map. But, what about critical legal
studies? According to Roberto Mangabeira Unger “[tlhe critical legal studies
movement has undermined the central ideas
of
modern legal thought and
put another conception
of
law in their place.’13 If Unger is correct in his
claim, and
if
critical legal studies
is
unfamiliar territory, then we should
waste no time in getting to grips with this latest theoretical development.
An obvious starting point, on the face
of
it, is Unger’s mammoth article
“The Critical Legal Studies M~vement.”~ But Unger’s intention is not to
write a gentle exposition
of
the leading ideas
of
critical legal studies. His
paper is offered more in the way of “proposal than description,”’ and it is
a brilliantly imaginative and complex proposal at that. For anyone who
prefers to jump in at the deep-end Unger’s article is certainly the place, and
for the benefit
of
such persons we begin by offering a few preparatory notes.
Unger’s argument is stunning both for its breadth and its depth. However,
if we gut it, the salient steps seem to*be as follows:
(i) Critical legal studies builds on two sceptical ideas. First, it rejects
formalism (by which Unger means the idea that legal discourse “can
be clearly contrasted to open-ended disputes about the basic terms
of
social life, disputes that people call ideological, philosophical, or
visionary”)
(Zbid.,
p.564); and, secondly, it rejects objectivism (here
meaning “the belief that the authoritative legal materials-the system
of statutes, cases and accepted legal ideas-embody and sustain a
defensible scheme
of
human association” (p.565)).
(ii) Rather than respond to these sceptical foundations by evasive and
“endless moves of confession and avoidance,” perhaps fearing that
“carried to the extreme, the critique of objectivism and formalism
would leave nothing standing,” critical legal studies takes “the
negative ideas relentlessly to their final conclusions” by pursuing
“the critical attack
u
outrance”
(p.576).
(iii) If we are to convert this scepticism into a constructive critical
programme we must recognise legal discourse as a discourse that
concerns the basic terms of social life without this reducing into
See
e.g.
David Held,
Infroduction
fo
Critical Theory
(Hutchinson, 1980).
See
e.g.
I.
Taylor,
P. Walton and
J.
Young,
Crifical Criminology
(Routledge and
’
R.
M. Unger, “The Critical Legal Studies Movement” (1983) 96
Harvard Law Review
Kegan Paul, 1975).
561, 563.
See note 3
supra.
Op.
cif.
note 3
supra,
at p.564.
359
360
THE
MODERN LAW REVIEW
(Vol. 47
either a dogmatic defence
of
the existing social order
or
“the
inconclusive contest
of
political visions” (p.577).
(iv) The method underlying such reconstructed legal discourse is one of
immanent critique, or as Unger variously calls it “deviationist
,”
“enlarged,” or “expanded doctrine.” This “maintains the minimal
characteristics
of
doctrine” by exhibiting “the willingness to take the
extant authoritative materials as starting points and [to accept their]
claim to normative authority” (p.577). Given such starting points
“the crucial feature
of
deviationist doctrine is the willingness to
recognize and develop the disharmonies of the law: the conflicts
between principles and counterprinciples that can be found
in
any
body of law.”6 The weaknesses of the method are conceded: “its
dependence upon the starting points provided by a particular tradi-
tion” (p.580); its “revisionary reach can in the end be limited solely
by institutional considerations lacking any higher authority”; and it
“lays claim to no privileged status [for legal discourse] capable
of
distinguishing it clearly from ideological dispute.” On the other
hand, “it promises only what it can deliver: its looser and more
contestable rationality requires
no
mixture
of
bold theoretical claims
and saving ad hoc adjustments” (p.582).
(v) The seminal programmatic idea is located
in
“the great secular
doctrines
of
emancipation
of
the recent past-liberalism, socialism,
and communism-and [in] the social theories that supported them.”
The idea is “the belief that the weakening
of
social divisions and
hierarchies would reveal deeper individual and collective identities
and liberate productive and creative powers” (p.584). As the guiding
social ideal this translates into the aim
of
freeing “the practical and
passionate relations among people from the constraining effect
of
some background plan of social division and hierarchy and [recom-
bining] the experiences and opportunities associated with different
social or gender categories” (p.671).
As
Unger sums it up “plasticity
[is] the secret
of
worldly success” (p.594).
(vi) The social ideal yields a new conception
of
law and constitution.
Within critical legal studies law and constitution “become the denial
rather than the reaffirmation
of
the plan
of
social division and
hierarchy. The ideal aim
of
the system
of
rights
. . .
is to serve as a
counterprogramme to the maintenance or re-emergence of any
scheme
of
division and hierarchy that can become effectively insu-
lated against the ordinarily available forms
of
challenge” (p.585). In
short, the constitution should make “each crucial feature
of
the social
order effectively visible and vulnerable to controversy, conflict, and
revision” (p.673). It should nurture “negative capability,” that is,
“the practical and spiritual, individual and collective empowerment
made possible by the disentrenchment of formative structures.” For,
“[a] thesis
of
this Article is that the formative contexts
of
the present
day impose unnecessary and unjustifiable constraints upon the growth
of negative capability” (p.650). The constitution,
so
reconstituted,
would serve the minimal democratic ideal that “the state must not
fall permanently hostage to a faction” (p.588); it would constitute an
“empowered democracy” (p.592).
(vii) One
of
the fundamental strategies for securing an empowered
Ibid.
at p.578. and
see
Unger’s astute application
of
this
to
the
Law
of
Contract at
pp.616-648.
To continue reading
Request your trial