Politics, Top Stories

Beyond All Warnings: The Radical Assault on Truth in the Law

Law is the worst of the bunch…. I had no idea how deep the corruption in law had gotten until last year. I have been talking to law students and professors, and it’s absolutely unbelievable.” Dr. Jordan Peterson, January 2018.

Dr. Jordan Peterson claims left-wing radicals are corrupting legal teaching across the Western world. At first glance, these extraordinary claims about the teaching of law seem unlikely. Jurisprudence is generally considered a dry subject of study, and the relentless application of reason and logic are the hallmark of conventional legal scholars and argumentation.

But there are a few signs that Peterson may be right, and the significant influence of ‘postmodern neo-Marxists’ on the legal academy is undeniable and pernicious.  For more than a generation, a coalition of radical scholars has been schooling students in doctrines they consider above criticism. In doing so, they have successfully smeared their enemies while perverting progressive aims of racial and sexual equality, and have replaced them with a regressive and authoritarian philosophy of power above all.

The philosophy behind this movement, known as Critical Legal Theory, has its roots in the 1970s, when postmodern neo-Marxist radicals began challenging and overturning accepted norms and standards. Officially founded in 1977 at a conference at the University of Wisconsin-Madison, the roots of critical legal theory (also known as Critical Legal Studies) extended back to the protests surrounding civil rights, animated by the ideals of Martin Luther King and the terrible injustices of the Jim Crow legal system.

The fundamental premise of critical legal theory was that the Western justice system was not a neutral or unbiased body of laws and procedures. On the contrary, the system is a tool of power, and pre-existing legal theories and structures were little more than frauds perpetrated by white male heterosexuals to consolidate their own power.

The theory is based on feminist, race and post-colonial concepts, and was pioneered by social justice legal activists within the American university system such as Kimberlé Crenshaw, Derrick Bell, Mari Matsuda and Richard Delgado.

Radical adherents 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. 

Thus, critical legal scholars encouraged students to see the ‘bigger picture’: that law was nested within the context of society. This meant a critical legal education must involve politics, history, philosophy, sociology and culture. But society was not to be analysed primarily through the lens of the classical liberal thinkers of the Enlightenment, such as Hobbes or John Stuart Mill. Rather, critical legal theory scholars turned to Marx and Engels to explain how society worked. Their heroes were Max’s Weber and Horkheimer, Herbert Marcuse of the Frankfurt School, the Italian Marxist Antonio Gramsci, and, of course, postmodernist heroes Foucault and Derrida.

Critical legal theory steadily grew in influence in the 80s and 90s until it became integrated into many law schools and, in the words of Cornell Law School, it “permanently changed the landscape of legal theory.”

Critical Legal Theory spawned its own substrata: Critical Race Theory (CRT), Feminist Legal Theory and Queer Theory. These influential subgroups eventually came to dominate the movement, as the role of gender, race and sexuality rose in prominence. The narratives, ideology, and vocabulary have become familiar to us all: “systemic oppression”, “institutional racism”, and “white, cis-gendered, male privilege”.

Like any set of academic theories, it was once subject to the kind of lively criticism one would expect of enlightened institutions dedicated to the pursuit of the truth. But, sometime in the 1990s, its proponents hit upon a clever way of advancing their case that would place their philosophy above criticism.   When their fellow professors would point out fundamental conceptual flaws, they would simply smear them as racists, sexists and the contemporary equivalent of being alt-right. And it worked beautifully.

The treatment of law professors Daniel Farber and Suzanna Sherry demonstrated their success, even in the face of brilliant critique. In 1997 Farber and Sherry exposed what they saw as the corruption of American legal thinking by postmodernist radicals in their book, Beyond All Reason: The Radical Assault on Truth in American Law.

In terms near identical to Peterson’s evaluation twenty years later, their prescient analysis highlighted how left-wing radicals were perverting the ideals of the law as originally inspired by the Enlightenment. They demonstrated that the radicals’ postmodern theories conflicted deeply with their own laudable goals of racial justice and progressive dialogue. They showed that these theories, particularly identity politics and White Privilege, had anti-Semitic and anti-Asian implications, undermined community relations and impeded dialogue.

Moreover, they charged that radicals were hypocrites, treating discrimination against Jews, whites and Asians as unworthy of the same criticism as against blacks. Among the many problems they highlighted were the radicals’ tendency to reduce argument to the exchange and criticism of personal stories; their inability to separate disagreement with a speaker’s message from attacks on the speaker as a person; and a divisive entanglement in identity politics. Because radicals replaced a belief in objective truth with a focus on power relations, Farber and Sherry found they faced the temptation to “slide away from democratic interchange toward nihilism or authoritarianism.”

What Farber and Sherry did not contend with was that this new order was to be enforced by viciously attacking those who disagreed with the radical thesis as not only blind, but bigoted. For their efforts, the liberals Farber and Sherry were condemned in the most extreme terms. Their peers labelled them racist, sexist, white supremacist bigots, and “secret agents of a very right-wing racial project”. In perhaps the deepest barb of all, they were condemned as “conservatives”, to be treated as outcasts from the otherwise liberal-left tribe. They fought back, detailing their shocking treatment in a follow-up paper: Beyond All Criticism.

What was most stunning to Farber and Sherry was that the radicals considered their scholarship to be beyond criticism. Noticeably absent from the response of the radicals was any solid defence of the positions they originally staked out, or any cogent reply to the questions posed.

Like Peterson, Farber and Sherry repeatedly faulted radicals for politicizing scholarship, for confusing politics with truth, and for rejecting universal values in favour of an “intellectual totalitarianism that privileges the subjective preferences of whoever happens to be in power”. Law Professor Anne Coughlin noted their critique was “devastating, and, from the perspective of traditional liberal scholars, largely unanswerable.” Yet despite this “devastating” critique there was no fundamental review of the critical project and its cornerstone, privilege theory.

Fast forward twenty years and these deep conceptual flaws have still not been rationalised into the radical left analysis, and certainly not to its popular manifestation, the Wikipedia page on White Privilege.  Indeed, the opposite has happened. These ideas have now become mainstream, “institutionalised” if you like, albeit in a highly polarising manner feeding into the expanding culture wars. For instance, the 2017 US Pew Survey found nearly eight in ten Democrats and Democratic-leaning independents said white people benefited from ‘white privilege’, while the views of Republicans and Republican-leaning independents were nearly the exact opposite.

Why have these radical theories taken root in left and liberal popular culture? After all, professors and students inspired by Marxist thinking are hardly a new phenomenon. No two law schools are the same, and it would be absurd to suggest that all law schools are in hock to the radicals. The reason is that in the 1990s conservatives abandoned the US academy, leaving liberals and leftists in the ascendancy, and viewpoint diversity all but vanished.

Jonathan Haidt has demonstrated that in the 1960s US academics voted Democrat over Republican at a rate of 2 to 1. This remained the same until the 1990s, whereupon there was a rapid shift brought on by the baby boomers retiring. By 2016 the ratio was somewhere between 17 and 60 to 1 in favour of Democrats.

Haidt contends this led to an explosion in groupthink, the psychological phenomenon where group members minimise conflict and reach a consensus without critical evaluation of alternatives, and by actively suppressing dissent, all the while isolating themselves from outside influences.

This ideological echo chamber has led today to an explosion in radical left-leaning argumentation supporting identity politics, and the further integration of Critical Race, Gender and Feminist Legal Theory into legal departments. All this happened while those on the left were much less willing to risk the opprobrium that comes with critiquing the theories of fellow tribe members. This led to weak argumentation. A major unattended flaw, for example, was that gender and sex were being studied without any proper understanding of underlying biology — radical social constructionist viewpoints dominated when defining the new “social justice”.

This was a problem because law schools were, in accordance with the need to see the big picture, increasingly interdisciplinary. Warwick Law School, for example, offered its first full year undergraduate module on ‘women and the law’ in 1977, when members of the Law School helped contribute to the establishment of the Interdisciplinary Centre for the Study of Women and Gender. Law departments were now led by professors such as Catharine A. MacKinnon at Michigan, who didn’t just teach black letter law; they also taught gender studies.

Today, it is commonplace to see departments dedicated to “Law and Social Justice” while leading critical legal theorists, including Robert Gordon at Stanford, Morton Horwitz and Duncan Kennedy at Harvard, still practice at top US law schools. Critical legal theory and especially its substrata have been integrated into legal education at schools such as Harvard, Boston, Colombia, UCLA, Georgetown, Melbourne, Glasgow and Kent.

Kent University, England, is a case in point. Kent is proud to be “A Critical Law School” where the course goes way beyond mere jurisprudence. Kent’s website states:

In considering where to study law, you will notice that university law schools vary. Some are ‘black letter’ (focused only on teaching you the legal rules and principles). One of the distinctive things about Kent is that we are a ‘critical law school’…. it gets you thinking about different kinds of legal systems, about power, and about who benefits and loses from different decisions.

Kent recently hosted the Critical Legal Conference, an international leftist legal symposium, hosting speakers such as law lecturer Dr. Kathryn McNeilly of Queen’s University Belfast, who used her powers of legal insight to explain thatSex/Gender is Fluid” and that:

A critical and queer understanding of gender must be accompanied by a critical and queer understanding of rights beyond liberalism which fundamentally grasps human rights as also fluid, non-binarised and unfinished.

Jordan Peterson is not alone in highlighting concerns that the academy has become trapped in Pseud’s Corner. New Real Peer Review (@RealPeerReview) mercilessly mocks scholars through the simple expedient of promoting their absurd conclusions on Twitter.

But this is no joke. A generation of radicals committed to critical legal principles is now playing out with increasingly pernicious effect and disturbingly authoritarian implications.

Professor Janice Fiamengo of the University of Ottawa has demonstrated how core legal concepts such as the burden of proof, presumed innocence and legal certainty are under attack by critical legal theory. Fiamengo explains:

Critical Legal Theorists don’t want to reform the system to make it more fair and neutral. They don’t actually believe in the possibility of neutrality. They advocate re-making the system to advance the interests of the so-called marginalised, and oppressed women and people of color in particular. Their rationale is essentially, although they would never say so: legal and social revenge.

Radical feminist legal theory is already being applied in Canadian courts. During the trial of York University student Mustafa Ururyar for sexual assault, uniform standards of evidence between men and women to determine credibility were set aside, with the judge asserting that women’s contradictory evidence can be explained away by reference to trauma. (Ururyar’s conviction was later overturned on appeal).

As Janice Fiamengo explains:

Part of the thinking behind it all is women and people of colour are always already victims, just by being who they are, and therefore they are especially deserving of belief and compensation, whereas a privileged man…is, by definition, less deserving of belief because he has already had the experience of being thought credible just by who he is.

Indeed, Fiamengo asserts that the feminist theory of “affirmative consent”, cited many times by the judge in the Ururyar case, turns almost all types of sex into rape. It also “codifies vague and capricious rules governing student conduct, shifts the burden of proof to male students accused of sexual offenses, and creates a disturbing precedent for government regulation of consensual sex.”

Elsewhere legislation against crimes intended to protect the “oppressed”, such as “hate speech”, are poorly defined, leading to concerns about free speech since it is difficult to know what can be said. The UK’s definition of hate crime is defined as “Any incident/crime which is perceived by the victim…to be motivated by hostility or prejudice based on a person’s race or perceived race”. Yet the authorities freely admit that, since there is “no legal definition of hostility”, they use the everyday understanding of the word which includes “unfriendliness”. Despite this extremely broad definition, the British left is pushing for hate crime to be extended to misogyny, a politically loaded term which is notoriously hard to define. Meanwhile in Canada, under 16-C the law is used to compel speech.

Human Resources departments, such as those at Google, now allegedly discriminate against “oppressors”, – that is, whites and Asians – and in rejecting the case of James Damore, the lawyers at 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. All this is done in the name of “equality, diversity and inclusion”.

The radical belief that meritocracy is an illusion means that social change is to be manifested using the power of compulsion. The government is required to interfere in areas such as compelled speech, and is to be brought back into the bedroom to regulate consent.

Old-fashioned concepts such as due process are thought to be so imbued with systemic oppression that they can be safely set aside. This mindset is perhaps best exemplified in the design of the kangaroo court system created to adjudicate allegations of sexual misconduct at American universities, so-called Title IX offences.

As part of the Title IX process, the lowest possible burden of proof was adopted, and severe restrictions were placed on the ability of the accused to question the account of the accuser. Ignoring due process, many schools appointed a single staff member to act as detective, prosecutor, judge and jury.

Sexually harassing behaviour was ill-defined and embraced “any unwelcome conduct of a sexual nature”, including remarks. And in defiance of the presumption of innocence, official documents described the complainant as the victim and the accused as perpetrator.

What the story of Farber and Sherry tells us is that the conceptual problems highlighted by Title IX are not new. A generation of legal scholars has been educating students in the fundamentals of justice seen through the uncritical lens of radical postmodernism. Our focus on student revolts is, therefore, a sideshow; it is the professors and the administrations who should be the focus of concern.

Late last year University of Pennsylvania law professor Amy Wax was pilloried after uttering the sacrilege that values such as self-discipline and commitment to marriage should be upheld, while asserting that: “All cultures are not equal.”

No fewer than thirty-three of her fellow professors, nearly half the law faculty, condemned her publicly. Without addressing any of the substantive arguments she presented, they supported students who denounced her as being complicit in, and upholding, white supremacy. We are, as Haidt explained in his defence of Wax, “closer to a world in which academic disagreements are resolved by social force and political power, not by argumentation and persuasion.”

Last month law students at Lewis & Clark College protested Christina Hoff Sommers’ talk critiquing feminist theory. She was shouted down and called a “known fascist” by student groups. But in the end, it was not the students who shut down her talk; it was their law professor, who is also their “Diversity Dean”.

Speaking to Quillette, Daniel Farber, now a law professor at Berkeley, said that critique was not easier today than in 1997. It was harder:

I think there’s still a great deal of reluctance by outsiders to do so [be critical], lest one be enmeshed in controversy and possible accusations of racism or sexism. Sadly, both inside and outside the academy, our culture has been changing due to polarization in ways that make it harder to discuss important issues except with people who already agree with us.

Urgent attention now needs to be drawn to the practical influence of these close-minded and authoritarian practices. Enlightenment concepts of reason, free speech, truth and the meritocratic ideal must triumph over an ideology of power masquerading as “social justice”.

The tragedy is that racism, sexism and homophobia continue to be real evils but, to their shame, the left’s cry-wolf tactics have helped create their own monstrous counterpoint. Steve Bannon’s intolerant call-to-arms “Let them call you racists” is a plea to conservatives tempted by the plausibility that accusations of bigotry are increasingly politically motivated, or examples of partisan hypocrisy.

At the same time the liberal establishment is abandoning conservatives and centrists by discarding meritocracy in favour of an activist state in hock to privilege theory. In doing so they have not only corrupted the law, but also the admirable goals of the civil rights movement. They no longer wish, as Dr. King said, to live in a nation where children “will not be judged by the color of their skin, but by the content of their character”. Rather, they double down on race, gender or sex as the inviolable identity of victimhood.

Conservatives and classical liberals must unite to find a new way to end bigotry without the tribalism of extremist identity politics. The tale of Farber and Sherry is a cautionary message. Twenty years of increasing corruption in the law has passed, and we are now beyond all warnings.

 

Andrew Kelman is a writer of Scots-Canadian descent. @TheUKDemocrat