Patrick Sutton's Weblog

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.

The Source of Law -- A Timely Rejoinder

My ruminations on the source of law were timely — the psychologist Steven Pinker published a feature-length article in the January 13, 2008 New York Times Magazine on precisely the same issue.  In his article, Pinker offers up some very challenging moral dilemmas that challenge the idea that there can be a “universal morality.”  However, Pinker ultimately supports a kind of universal morality grounded in evolutionary biology.  He terms this a “new science of the moral sense.”  The article, entitled “The Moral Instinct,” provoked me to submit a letter to the Times:

The source of morals, a problem addressed by Steven Pinker (“The Moral Instinct”), has bothered me since college, when a philosophy professor of mine raised one of the same moral problems (a commandment to torture a child) on the first day of class.  Like Pinker, I tend to come down on the evolutionary or biological side of things but still squirm at mere biological reductionism.  Something seems irredeemably unacceptable about the torture of a child.  Breaking through our gut feelings here is difficult, and I doubt we’ll ever get access to the mind of the creator – “is this right?”.
One assumes that all conscious beings in our universe will be much like us, fragile, oozy bags of guts and fluids resulting from an improbable process of natural selection rather than from the spontaneous generation of mechanical devices (robots, for example).  Given the high unlikelihood that consciousness should arise at all, and given also the enormous amount of energy and information expended by nature in the processes giving rise to conscious beings, wouldn’t it be bizarre if the resulting consciousness could tolerate, for example, the torment of its offspring? 

I suspect that any process of sufficient duration and energy expenditure would generate a self-correcting mechanism for events that threaten to halt that process.  Morals might be such a self-corrective.  That doesn’t mean that morals don’t still echo the sentiments of a creator, but it does suggest that any creator is more involved up-front in affairs than later on, once the process has been set in motion.

Pinker’s article spurred my thinking on the matter of algorithms as applied to evolutionary biology.  Readers of Stephen Wolfram will recognize this line of reasoning.  I will address this in more detail in another post.

Where do legal systems come from?

In the years before post-structuralism made it to the provinces, my red-cheeked eagerness to be “pre-law” led me into an undergraduate philosophy of law course.  I had no idea what law had to do with philosophy, and also I had done very badly in the freshman philosophy survey course; but I convinced myself this was something I should do.  In the event, the course would alter my trajectory in life.  Not in the obvious way, as in, learning something that I believed in.  Far from it: I rejected then and reject now much that I read that semester.
The teacher was adjunct at that time.  He ultimately didn't win tenure in the philosophy department after years of slogging in the teaching trenches.  He took his graduate philosophy degree with him to law school, went into law practice, had a family, and continued to feed his pedagogical hunger by teaching college kids at night (and still does, I believe). 
He began the first 3-hour night class by posing a simple hypothetical.  Assume, he posed, the most heinous acts imaginable against an infant child – abuse, mutilation, the works.  Now, he asked, can you give me any scenario under which such acts are justifiable?  Further, is there any possible way that such acts are not always and everywhere wrong?  Such questions invoke the doctrine of natural law.  As it developed, the entire semester’s readings reflected, in some way, his interest in natural law.  I didn’t accept it then and don’t now, but I was angry enough to work to refute it. 
The idea, not very politic in the academy of the early-1980’s, was that immutable values and truth existed and that it was possible, with philosophical inquiry, to get at those values and truths.  The answer to the infant child hypothetical is that the acts are always and everywhere wrong, independent of anyone’s cognizance or appreciation of those acts.  That is, there is Wrong and Right.  It takes little intellectual bootstrapping to set these up as reflections of a deity who is the benchmark for the standards, and I suspected that the teacher was a religious person.  At all events, he was something of a throwback as of 1985, though similarly conservative minds would soon come out swinging with fear-mongering attacks on fashionable philosophical ideas.
About a year later, post-structuralism established beachheads in the second and third tier universities like mine, and those of us invited to the party were excited.  This was the whole relativism debate, with critics on the right attacking the universities for promoting godlessness and for abdicating any adherence to “values.”  These attacks were reminiscent, to me, of the philosophy of law instructor’s tenets, though they were stated less forthrightly, less baldly religious in tone. The arguments were not pointedly about absolute right and wrong – natural law – so much as the tenets of “western” culture: truth, beauty, love, those kinds of things, and the great books from classical times to the 19th century that were argued to traffic in these things.
Post-structuralism, variously called post-modernism, deconstructionism, critical theory, or none of these, depending on whom you consult, had to do with validating different perspectives in the evaluation of cultural artifacts (art, books, music, movies, etc.).   That is, people bring different perspectives to the table when interacting with cultural artifacts, and their reactions and interpretations are all of equal worth.  In practice, the critic refers to cultural artifacts other than the one under scrutiny to develop the critical perspective on the work.  Thus, the critic might refer to the works of Marx in explicating a novel by Dickens.  In that instance, we would say that the “perspective” of the critic is leftist.  It often happened, in post-structuralist criticism, that leftist theorists, Freud, and feminists were the chief references -- the critical touchstones -- and this tended to enrage (and engage) the political right and practically demand that post-structuralism be damned as abhorrent. 
Post-structuralism’s seeming dominance in the academy of the mid and late 1980’s galvanized conservatives both inside and outside of the academy.  In the end, Post-structuralism won the cultural wars, but only by becoming defanged and irrelevant.  The critical move of validating differing interpretations of cultural artifacts is now de rigueur and meaningless, a sort of bad warm-up joke before a keynote speech.  Writers clear their throats by acknowledging multiple perspectives on a subject then go on to discredit everyone’s views but their own, in the time-honored tradition of criticism. 
I have long agreed with Stanley Fish, a founder and still the most clear-eyed post-Structuralist, that “post-Structuralist philosophy” is a contradiction in terms.  Post-structuralism doesn’t tell you anything that really matters, for all its deconstructionist glee in knocking down the monuments of Western culture with expositions of their (take your pick) phallocentrism, dialectical materialism, anal retentiveness, and all the rest.  All it really tells you is that people argue by their lights and really do believe in things very deeply.  It should come as no surprise that the critic who uses Marx to explicate Dickens reliably votes Labour; it would be quite surprising to learn otherwise or to hear that same critic praise Margaret Thatcher’s policies.  I doubt that such a critic teaches you anything truly new about Dickens’ work, though you probably do learn a lot about how people on the left wish you to view Dickens; perhaps that is something worth knowing.  Philosophy, however, it is not. 
I long cherished the hope that post-structuralism would provide the answer to my philosophy of law teacher's hypothetical – can heinous acts against a young child ever be justified or ever be right – and only reluctantly did I put post-structuralism aside as inadequate to the task.  I agree with the prof. that it’s impossible for a society to tolerate such harms, so deeply ingrained in us is the sense of their outrageousness and so grievous is their real damage.  The problem for me has always been the project that inevitably follows this conclusion: the construction of a system of rights and wrongs with perfect predictive power – that is to say, a rigid moral system and, finally, a rigid legal system based on that moral system: the doctrine of natural law.  Since I believe, deeply, that any such system is both impossible to construct in a truly pluralistic society and, were it somehow accomplished, profoundly oppressive, I have looked elsewhere for answers.