Law and Radicalism

I've previously blogged about post-structuralism in the context of the liberal arts curriculum.  By the time I got to law school in 1987, the notion that "critical theory" should be taken up by those seeking to challenge established institutions and ways of teaching had infiltrated even legal studies.  This strikes me as extremely peculiar now, with the benefit of hindsight, though at the time it seemed reasonable enough to me.  If radical theories could be brought to bear to tear down ossified intellectual edifices in the undergraduate realm (like structuralism, for instance), why couldn't they inform radical criticism of the legal system?

The three chief approaches back then were "law and economics," which analyzed and legal opinions of judges through the lens of economic efficiency; "critical legal theory," which did the same same thing via left-wing philosophy; and "feminist legal theory," which used disparate strands of feminism to examine the law.   I tormented myself with all three approaches both at law school and in my graduate liberal arts studies.

Now, twenty years on, I believe much of that intellectual effort (and torment) to be wasted.  Why did I bother back then?  I really loved the academy, and I envisioned myself one day ensconced there with tenure.  I ultimately didn't have anything like the credentials to get a good teaching post, so it was to be the work world for me.  But I still felt the call.  A good buddy of mine, far more credentialed -- in fact, brilliant -- never landed a teaching career despite a couple years' trying following multiple graduate degrees.  Whether from bitterness or, as we tell ourselves now, a better grip on reality, we're both firmly convinced that trying to foist new theories upon law students in particular is a dubious enterprise. 
The problem, as I see it, is that no matter how much we might wish to deny it, the law is more or less of a closed system.  It evolves a bit over time, but the work I do each day does not differ in any meaningful way from the work of a 17th Century English lawyer.  I don't accost local judges with feminist critiques of their opinions.  I don't suggest to clients that they challenge existing law with leftist notions of income redistribution.  The law just doesn't work that way.

I have come to believe that many of us -- and especially academics -- end up in particular spheres in our work lives and that these spheres have too much at stake in maintaining their own boundaries to permit significant encroachment from other spheres.  If anything, a given sphere works to expand into other spheres.  Thus,  academic theorists have tried to expand their sphere into ordinary legal practice.   Likewise, lawyers have tried to impose legality and legal structures onto the academy. 
The upshot, in my experience, is that competing spheres may or may not succumb to such outside influence, but that the Normans usually Anglicize rather than the other way around.  That is to say, a sphere under threat inoculates itself with a weakened dose of the serum.  I think that the law has done just that: incorporated a few hollow phrases here and there from the critical theories that have taken aim at it, but largely gone on about its business. 

Day to day, in the practice of law, a lawyer has to work within the norms of the system to be effective.  When I first started practicing, I used to bang my head against the wall trying to incorporate critical theory somehow into what I was doing.  "God damn this patriarchal legal decision!"  But I never found a way to make it happen.  There was certainly no place for it in legal briefs, legal research memos, letters to clients, or hearings before judges.  When I tried another tack, writing articles for legal publications, my colleagues mainly laughed; and the publications rejected the articles. 

Issues in spheres other than the law are important and need to be recognized by the legal system.  In my experience, however, this is done through tried and true procedural mechanisms of the legal system.  No matter how much you may wish to have the judge stick it to the rich, or to the man, or to the chauvinist pig, the only way that's going to happen is through a case following the procedures that lawyers use.   
That doesn't sound very radical, but it can be.  The trick with the legal system is to be persuasive and to prevail.  What really great lawyers do is achieve radical aims by lawyering brilliantly, and that's a skill not to be undervalued.  Thus, great lawyers have persuaded judges to protect animals, abused children, battered spouses, and the like.  Great lawyers have convinced judges to free the innocent.  Great lawyers have achieved radical aims.

It's not just lawyers.  Regular people achieve radical legal results, but by direct political action rather than specifically legal action.  People convince legislatures to change, among other things, the rules of legal procedure and the substantive law itself.  In that way, lawyers have new avenues for bringing argument, evidence, and strategies into the legal process that were not valid prior to legislative changes. 

I'm not current on events in the academic world, and I don't know what has become of critical legal studies.  I assume that they are still taught and that bright-eyed law students still believe that radical theory equals radical change.  I don't believe that anymore, though I'm glad that I believed it once -- it was fun in its way to believe that words alone could make a difference.  In the real world, I have found that radical change results from a lot of sweat from a lot of people.  Pretty words are part of the game but subsidiary to skilled, informed, appropriately directed effort.