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In Defence of Critical Legal Theory: A Reply to Andrew Kelman

I read Andrew Kelman’s recent Quillette article “Beyond All Warnings: The Radical Assault on Truth in Law” with interest and some appreciation. Kelman characterises his article as an attack on ‘critical legal theory.’ Invoking Jordan Peterson, Kelman connects the emergence of critical legal theory in the law school with the broader academic fad of what Peterson has called “postmodern neo-Marxism.” These relativistic philosophies, Kelman argues, have undermined the belief that there can be neutrality and truth in any field, including the law. Drawing on postmodern philosophy, critical legal theorists and their followers, convinced that all law is about power, seek to use the legal system to redistribute power to those groups they feel have been traditionally marginalised in society.

Kelman argues that the influence of critical legal theorists has been pernicious. Under their influence, judicial officials have become more concerned with the pursuit of ‘social justice’ and identity politics, and less concerned with the neutral application of legal rules based on the evidence presented in a case. Moreover, critical legal theorists have engendered an increasingly authoritarian culture in law schools and the legal field, as they shame and clamp down on the expression of opinions which allegedly demonstrate prejudice towards the ‘oppressed.’  Against these trends, Kelman calls for a renewed emphasis on the neutral pursuit of truth in legal analysis, and on classical liberal principles in law more generally, such as meritocracy.

There is a lot to admire in Kelman’s article. The pursuit of collective ‘social justice’ at the expense of evidentiary standards would have a tremendously negative impact on the legal system. To invoke Kant, treating the individuals involved in a legal dispute as a mere means to pursue one’s conception of social justice whatever the actual facts of their case, would be a great wrong. I also have some sympathy with Kelman’s more general criticisms of postmodern philosophy. However, I think he has made some serious errors in his characterization of critical legal theory’s fundamental challenge to the ideal of neutrality.

In this article, I will suggest that critical legal theory poses deeper challenges for the pursuit of neutrality and truth in the law than Kelman acknowledges. To be tenable, any argument for neutrality and the pursuit of truth in legal analysis will have to deal with these challenges. I will also argue that Kelman’s commitment to classical liberal principles – particularly meritocracy – is somewhat anachronistic given the current state of legal and political theory. This is true even in liberal circles.

Variety in the Critical Legal Studies Movement

Kelman characterises critical legal theory as emerging out of ‘postmodern neo-Marxist’ philosophy. Critical legal theorists, he says, “believe that the logic and structure attributed to the law grow out of the power relationships of society. Thus, the law exists simply to support the interests of the dominant group and is merely a collection of beliefs and prejudices that legitimise injustice in society.” Since the logic and structure of the law emerge from oppressive power relationships, the job of the critical legal theorist is not to pursue a true interpretation of the law through the neutral analysis of legal rules. It is to overturn these power relations using any means necessary, including eschewing evidentiary standards and twisting “core legal concepts” to pursue a ‘social justice’-oriented political agenda.

Like all generalisations, Kelman’s doesn’t hold for all cases. Many famous critical legal scholars – Costas Douzinas, Martti Koskenniemi, and Roberto Unger, to name a few – do not fit neatly into his account. For instance, Roberto Unger has argued that law should engender what he calls “super-liberalism.” He has also been sharply critical of postmodernism’s skepticism towards truth. Indeed, Unger’s most recent major work was a fascinating book on physics co-authored with the Perimeter Institute’s Lee Smolin entitled The Singular Universe and the Reality of Time. So Unger is hardly abandoning science and truth for postmodern relativism, and he is hardly unique amongst critical legal theorists in this respect.

But what about those critical legal theorists who do fit Kelman’s characterisation? For example, Harvard University’s Duncan Kennedy and Osgoode Hall’s Allan Hutchinson have invoked both postmodern and Marxist philosophy to claim that law is primarily a way to reinforce power relationships privileging certain groups in society. And these authors are certainly critical of the claim that one can conduct legal analysis in a manner that is neutrally committed to true interpretation of legal rules. So there is indeed something to Kelman’s account. But Kelman’s characterisation falls apart because he fails to deal with the central philosophical claim of critical legal theorists: that the neutral pursuit of truth is not just impossible due to biases established by power relationships, but because the terms in legal language are themselves often indeterminate. This a considerably deeper challenge for those, like Kelman, who advocate the neutral pursuit of truth in legal analysis.

The Problem of Legal Indeterminancy

What critical legal theorists mean when they say that legal language is indeterminate is that in many hard cases it isn’t obvious how a Judge is to interpret and apply many of the linguistic terms which appear in legal rules. This poses substantial challenges for those committed to the ideal of neutral legal analysis, wherein Judges simply look at the evidence in an individual case and apply legal rules, either as they are written or by drawing from the common law. If it isn’t obvious how Judges are to interpret the terms which make up legal rules, one cannot just neutrally apply them in a determinate way. This means that in hard cases the ideal of neutral legal analysis cherished by Kelman and others, even if desirable, is impossible.

The challenge of legal indeterminancy didn’t actually originate in critical legal theory. Legal realists such as Justices Oliver Wendell Holmes and Jerome Frank noted that “the life of the law is not logic: it is experience.” Drawing on the philosophies of language developed by skeptical American pragmatists, they argued that many of the terms which make up legal rules are semantically vague and cannot be neutrally applied. Of course, this isn’t true of all terms. The terms that make up some legal rules are easy enough to interpret. For instance, Article II Sec I of the US Constitution stipulates that the President of the United States must be over 35 years old.

But is that true of the Ninth Amendment, which stipulates that theenumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”? Or the (in)famous Fourteenth Amendment guaranteeing “equal protection of the law”? In these cases, the linguistic terms making up legal rules are not easily interpreted. Determining what constitutes an unenumerated right or, for that matter, what constitutes “equal protection of the law,” is extremely difficult and ambiguous. Invoking equality is often the starting point rather than the end of a debate about a judgement. This is why, according to the legal realists, in hard cases where such ambiguous terms make up legal rules a Judge will always bring their personal convictions on politics and morality to bear.

The problems posed by legal indeterminancy in hard cases have proven so intractable that even legal positivists, once the high priests of the neutrality in the law, have largely accepted them. The most influential legal positivist of the 20th century, H. L. A Hart, distinguished between what he called the “core” and the “penumbra” of law. The “core” were those legal rules whose terms could be readily interpreted and neutrally applied. But Hart observed that, in numerous “penumbral” cases, a Judge is faced with deeply ambiguous linguistic terms. Influenced by Ludwig Wittgenstein and the speech act theory of John Austin, Hart argued that this often occurred when the meaning of the terms in question was not settled in a given community. In these penumbral cases, Judges were under an obligation to settle the meaning of terms for the purposes of establishing a relatively clear legal rule. So, they brought their own personal convictions to bear on what, say, ‘equality’ or ‘liberty’ or ‘privacy’ should mean. These interpretations were in no sense neutral, but they were necessary to establish clarity for the subjects of legal rules.

Critical legal theorists have largely drawn on these antecedent arguments concerning legal indeterminancy and radicalised them. Critical legal theorists like Allan Hutchinson have observed that high-ranking Judges are very often presented with penumbral cases; in fact, many of them are amongst the most famous in legal history. These are cases where Judges decided on the meaning of ‘free expression,’ ‘privacy,’ and a host of other terms which are deeply connected to important but highly contentious moral values. Given the contention surrounding the meaning of these terms, Judges cannot in good faith claim to be just neutrally applying legal rules.

This is where Kelman’s claims about critical legal theorists’ obsession with power relationships comes in. Many critical legal theorists argue that, since many of the terms making up legal rules cannot be neutrally interpreted, Judges tend to interpret legal rules to protect the interests of privileged groups in society. They do so because most Judges themselves come from privileged backgrounds and are brought up and educated in elite institutions, the social function of which is to protect the interests of the powerful.

Kelman could certainly contest this last claim. Many Judges would argue that their background does not determine whether they rule one way or another. But that isn’t the deep challenge. The deep challenge for those who want legal analysis to be the pursuit of truth through the neutral interpretation and application of rules is the problem of indeterminancy. How does one make judgements in important hard cases where legal terms are indeterminate and do not readily permit a neutral interpretation? Unless one can answer this, critical legal scholars will always be tempted to look at the often privileged background of Judges for insight about what they will decide. And, in some senses, this seems as plausible a strategy as any. Maybe coming from a privileged background makes one favour the powerful, maybe not. But if background cannot tell you what a Judge’s personal convictions are likely to be, then what can?

Conclusion: Dworkin’s Response

There is a legal theorist who seems to provide an answer to the challenge of indeterminancy. Ronald Dworkin, former Oxford Chair of Jurisprudence and author of Law’s Empire, spent a lifetime arguing that there was “one right answer” to all legal questions. He claimed that the skepticism underpinning both legal positivism and critical legal theory was misplaced. Moreover, Dworkin famously argued that law is a deeply moral enterprise aimed at “integrity.” Interpreted correctly, it would establish a more just society for all.

However, it is unlikely that Kelman would support Dworkin’s vision of a more just society. This brings me to my final criticism of Kelman’s analysis. Kelman concludes his article with a call for “conservatives and classical liberals” to unite and buck the influence of critical legal thinking and its postmodern identity politics. Apparently, this would mean emphasizing not just neutrality, but also liberal values like meritocracy. What Kelman doesn’t acknowledge is that many contemporary liberals, including most notably Dworkin, are highly skeptical of meritocracy. Influenced by John Rawls’s Theory of Justice, many liberals, including legal theorists such as Dworkin and Martha Nussbaum, have argued that merit is a highly ambiguous idea that cannot be justified when the initial distribution of goods and talents in society is morally arbitrary. The goal of a just legal system aimed at getting the right answer to legal questions is to establish a more fair and equitable distribution of goods across society.

Far from appealing to postmodernism, these liberals cite Kant, Mill, and others as influences. So if Kelman is truly interested in re-entrenching principles and virtues like meritocracy in the legal system, he might have to acknowledge that his opponents aren’t just limited to postmodern neo-Marxist relativists anymore. These days, it includes many who proudly associate with the liberal tradition itself.

 

Matt McManus received his L.L.M in International Human Rights Law from the National University of Ireland and his PhD in Socio-Legal Studies from York University. He is currently Visiting Professor of Politics and International Relations at TEC de Monterrey and is writing his first book “Overcoming False Necessity: Making Human Dignity Central to International Human Rights Law” for the University of Wales Press. He can be reached at garion9@yorku.ca

 

9 Comments

  1. John says

    “The goal of a just legal system aimed at getting the right answer to legal questions is to establish a more fair and equitable distribution of goods across society.”
    Since when? This is simply arbitrary assertion based on nothing more than the authors preferences, certainly nothing solid enough to build a legal system on.
    Amazing; a closely argued essay that ends in bald, arbitrary assertion.

    • I agree – at first I was excited, because it seemed that there was going to be a reasoned argument from two sides (first the Kelman article, then this one). But there isn’t enough detail here to really know what the author is arguing for, or against. It’s true that Kelman’s article did talk about meritocracy, but the term was first introduced in relation to the legality of hiring practices: “the National Labor Relations Board thought so strange the idea that biology can explain some differences between men and women that they placed the word “science” in scare quotes”.

      On the other hand, McManus asserts that ‘The goal of a just legal system aimed at getting the right answer to legal questions is to establish a more fair and equitable distribution of goods across society’ – like John, I find it strange that ‘the fair and equitable distribution of goods’ should be a goal of the legal system (outside of rulings on hiring practices). Some more information, maybe a pointer to a book or an article, would be useful.

  2. Dave says

    The author seems to run together legislating, with ajudicating. Whether we continue with liberal values like the merit system, is a legislative function….and has nothing to do with interpreting the law as objectively as is possible.

  3. ga gamba says

    To better understand the Hart-Dworkin debate, one of the most famous in law, I think this article (PDF) lays out the arguments, and their fluidity, well.

    Critical legal studies (CLS) are based on the notion that law is neither rational nor coherent and just, but is, in reality, arbitrary, incoherent, and substantially unjust. Critical studies are based on the idea that behind the facade of neutrality, law serves and imposes the hierarchy of power regardless of it being economic, gender based, heteronormative, or racial.

    In the US with its 52 legal jurisdictions (50 states, DC, and the federal court), and approximately 32,000 judges, I’m sure there are plenty of individual cases that may be cited as evidence the legal system is capricious and stacked against this group or that. Yet, are laws and legal judgments predominately arbitrary, incoherent, and substantially unjust? Does law serve power only?

    Prior to the creation of CLS anti-trust laws were enacted and courts dissolved trusts. One of the first cases was filed in 1917 against United Shoe Machinery Company. Through a series of acquisitions United Shoe controlled about 98% of the US market and also, through exports to more than 50 countries, was the major player overseas – these machines stitched the upper’s leather, attached the outsole to the midsole and the upper, and formed the upper to the last (the three-dimensional wooden or plastic mould upon which a shoe is constructed). Most of United Shoe’s machines were leased rather than sold, and the contract included maintenance provisions and a sharing of profits based on royalties tied to output. United Shoe required its machines be used exclusively by the makers, so this kept the few remaining competitors locked out. The mechanisation of these processes reduced the assembly time – for example attaching a sole by hand skivving a holdfast in the leather and stitching would take a skilled cordwainer 90 to 120 minutes, but using a McKay or Goodyear welting machine it was completed in less than 30 seconds. This disrupted the shoe making guilds and the apprentice system, yet it also allowed low-skilled immigrants with agricultural backgrounds to find work in factories. It also made shoes much more affordable.

    United Shoe didn’t rest on its laurels; it introduced 800 new and improved shoe machines and patented more than 9,000 inventions. It was important not only in the production of military footwear in both world wars, it also manufactured armaments, so it had close links to the Pentagon. During the Great Depression the company flourished – an exception during that dire period. At one point its factory was the world’s largest in square footage; the shoe industry was a main proponent and funder of the electrification of New England. And it was a major employer in Massachusetts.

    United Shoe underwent a series of anti-trust court cases from 1917 to 1967, the last of which the US Supreme Court ordered United Shoe to be broken up. By 1976 the company was heavily in debt and sold off. Outcomes included retired workers at the former United Shoe’s UK operation losing their pensions.

    Looking at the history of United Shoe its power waxed and waned. At certain points it was incredibly powerful. Did this power insulate it from adverse outcomes in the court that set in motion its decline? No. Was its power always malevolent? For example, by mechanising shoe manufacturing didn’t this help end the dominance of the master-apprentice system? Remember, it was usually children who were apprenticed and lived with their masters. Mechanising the process made it much easier for unskilled adults to make shoes too. Sure they didn’t obtain expertise using it in a day or two, but it still was many years faster than one had to devote to become a journeyman and later master. Further, this allowed many more shoe makers to be established which increased competition, improved efficiencies, and lowered prices. It also helped establish electrical power plants and the distributive grid, which grew to include all. By introducing a leasing system this reduced the cost of entry into the market, but by forbidding customers to bring in competitors’ machines to their shop floors this restricted trade.

    I suppose you may have learnt more about the shoe machine business than necessary, but my point is to show that power, which is fluid and varies in context, in and off itself isn’t the problem. The abuse of it is. This is what Derrida’s critical theory and the later postmodernists miss. They structure a dichotomy of powerful and powerless, and the powerful always abuse the powerless. Life is not this simple; it’s filled with nuance. Relationships can be adversarial in some aspects but also complementary in others.

    They do so because most Judges themselves come from privileged backgrounds and are brought up and educated in elite institutions, the social function of which is to protect the interests of the powerful.

    Could the same be said of professors and holders of PhD’s? McManus is male, so he has that privilege. A google of him finds he’s white, or at least white passing. Another privilege. And I presume he’s European, so a lot of privilege comes with that. He’s a native speaker Anglophone in a world where that language holds asymmetrical power, and disproportionately so given global demographics. Globally, he’s in the top 1%, and he’s in the top 0.1% if he earns about Mex$ 814,786 (US $45,000) per annum. I suppose he recognises his privilege, and he may even advocate reversing the injustice of it, but are words and personal inactions really enough to counter how he’s benefitted from the arbitrary, incoherent, and substantially unjust construct that puts him at the top of the pecking order ? I’d like to be fair to him and recognise his achievements, but wouldn’t it also be just to hold him to the rules he advocates? He’s taken a less privileged person’s place, right? By maximising his privileges he exerts power over others less fortunate, even if it’s not his intent. By the postmodernist rules I don’t even need to prove this by documenting specific infractions and aggressions – what’s truth, right? I simply just assert that he is white European Anglophone male, i.e. the most powerful of all, and we already know he’s stained by the sins of that group.

    He’s relinquished nothing to further equality and justice, yet he expects others to do so. These postmodernists are the Jimmy Swaggarts of the 21st century.

  4. First of all, sure, laws can sometimes be difficult to interpret. And sure, there may be implicit biases effecting judges’ decisions under some of these circumstances. That’s why there’s precedent in case law (to guide judges in how to apply ambiguous law), appeals court (to give the defendant the ability to argue the judge’s interpretation was biased), and the legislature (to clearify laws being misinterpreted). The conclusion that the solution to a sometimes biased justice system is to simply fiat *your* own preferred outcomes instead is absurd on its face, and becomes its own overwhelming power inbalance. But don’t worry, right? Because *you’ll* for sure apply that power completely neutrally and free from any possible bias?

  5. Larry says

    It would seem to me that there is clear counter-evidence to the claim that judges will act in their group’s interests. Who is arguing these points? A lot of privileged people. And even when they are not privileged people, many privileged people have accepted these arguments. How is this possible if one simply acts in one’s group’s interests?

    While it is undoubtedly true that there is a high degree of indeterminacy in legal statutes, etc. — indeed in all communication — and that the receiver of a message draws their own inferences to construct the intended meaning, that doesn’t mean that there wasn’t an intended meaning that shouldn’t be respected. For example, suppose I ask someone “Do you know what time it is?” and they answer “2:30 am”. In this case they’ve interpreted my question as a request for the time, but suppose instead my question was rhetorical and I wanted to point out that it is late and we should be headed home. Now clearly there are different plausible ways of interpreting my question and indeed, it was entirely reasonable for my conversation partner to interpret my question as they did. But the fact remains that I did not intend the interpretation that my conversation partner gave to it. More importantly though it’s entirely appropriate for me to then correct the person and say something like “I know that, but my point was that it’s getting late, so maybe we should leave”. It would strike me as bizarre at that point for my conversation partner to persist and argue 1) there are several ways of interpreting my question, 2) no interpretation is to be privileged, and 3) in adopting our own interpretations were are asserting out respective group interests. That #1 characterizes all communication, legal statues included, does not mean that #2 and #3 inevitably follow or even that they are reasonable ways of resolving the matter.

  6. An interesting if backasswards interpretation. If we look at Ibn Khaldun and Gumplowicz and related sociological accounts, State formation is based in the subordination of an agricultural population typically under nomadic pastoralist herders or pirate/merchants. That is to say, the State is a ranked, ethnic-based hierarchy who legitimacy is based on might and protected with violence. However, with time and interbreeding, and the wastefulness of violence, hierarchy becomes codified into law, and law is used to address social grievances between groups instead of violence. At this point, law while remaining a supporter of the social order, begins to make increasing concessions to the subordinated populations.

    Obviously, if you are a Marxist, the goal is to violently overthrow the ruling class, put yourself into power and become the new ruling class, and turn the nation into a maximum security prison to prevent subversion, so the law and the rule of law will not do.

    But if we look at the real world, with the extension of the franchise, civil rights laws, etc., what we seem to see is the law increasingly trying to accommodate the subordinated and oppressed segments of the population. The law functions to mediate disputes between classes and identity groups in a democratic society, typically in a way that is intended to decrease violence and civil unrest. To pretend it is some reactionary institution is a farce, except in the sense that any institution designed to prevent violence and civil unrest is reactionary.

  7. The main problem of the law in multicultural societies is how to address ethnic nepotism. People who share the same social identity will inevitably try to fill limited positions of power with other people with the same identity. People with other identities will attempt to fill positions of power with people of those other identities, creating a zero sum battle for power on identity lines, the kind of battles that if allowed to escalate, can result in genocide.

    Urban politics in America has been, for a long time, based on forming ethnic-based coalitions and awarding power based on ethnicity and loyalty. Progressive reforms enacted in the early 20-th Century intended to curb the excesses of Jacksonian democracy have been rolled back on the federal level. Meritocracy sounds like a neutral position, but we all know that men were not created equally, and that merit-based rules benefit some groups more than others. So we are left with a big mess, and the fact that Trump is President would suggest that the modern liberal pieties in favor of ethnic nepotism for some may be counterproductive if not positively corrosive.

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