In Defence of Critical Legal Theory: A Reply to Andrew Kelman
The pursuit of collective ‘social justice’ at the expense of evidentiary standards would have a tremendously negative impact on the legal system.
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.
Jonathan Kay
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 the “enumeration 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.
