The Critical Legal Studies movement is heavily influenced by the deconstruction movement. Jack Balkin explains how deconstruction as a literary and philosophical tool migrated into the law, in his 2005 Cardozo Law Review article Deconstruction's Legal Career:
Deconstruction began as a series of techniques invented by Jacques Derrida, Paul de Man, and others to analyze literary and philosophical texts. These techniques, in turn, were connected to larger philosophical claims about the nature of language and meaning. . . .
When deconstruction moved from literature departments to the legal academy, it was modified further. Legal academics on the left, particularly feminists and members of the Critical Legal Studies (CLS) movement, saw deconstruction as a way of challenging legal orthodoxies. They assumed pretty much without question that they could adapt deconstructive techniques to critique unjust legal doctrines and advocate more just arrangements. Once again, this assumption is rather puzzling. It is true that many literary deconstructionists identified with the political left. But they were using deconstruction to show the impenetrability, mutability, and conceptual incoherence of all texts, not simply the texts produced by political conservatives.
So the indeterminacy of texts is a double-edged sword, which ultimately can be wielded by conservatives against cherished liberal principles. My friend and colleague Mike Seidman elaborates, in his excellent recent article Critical Constitutionalism Now (now published in the Fordham Law Review):
[The Critical Legal Studies movement's] indeterminacy claim was that standard legal materials -- statutes, constitutions, and precedent -- often failed to dictate a single outcome. Critical scholars demonstrated over and over again that legal rules and conventional methods of interpretation could, in the right hands, produce wildly different results. Some scholars went beyond this claim to assert that not just legal materials, but also underlying ideologies, were indeterminate . . . .
Events of the last six years provide a stunning confirmation of the claims critical constitutionalists made during the last century . . . . In a wide variety of contexts -- from the legal defense of an aggressive war, to the assertion of constitutional power to hold American citizens indefinitely without legal process, to the claim that the president has inherent constitutional power to utilize torture and warrantless wiretapping, to assertions that the filibuster is unconstitutional and that mid-decade gerrymandering of congressional districts is constitutionally permissible, to the unprecedented search of the office of an incumbent congressman -- the Bush administration and its allies have used legal rhetoric to hold and consolidate power. . . .
Although they can take small comfort from this fact, this complex interaction of legal consciousness with politics vindicates the key claims of critical constitutionalists. It turns out that constitutional principle is sufficiently elastic easily to accommodate the Bush revolution . . . .
And, of course, critics of this "Bush revolution" (rightly or wrongly) pile a lot of blame on one particular Executive Branch actor: John Yoo.
Perhaps this view (that the indeterminacy critique of constitutionalism can easily cut in a conservative direction), together with its associated warning (that progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end), deserves a name. I suggest: the Yoo-De Man thesis.
That the Bush administration was able to use legal texts to justify its actions wasn't a case of the deconstructionist child devouring its parent--it was precisely how CLS scholars predicted law would operate. The positive application of post-modern legal theory, as I understand it, is that turnabout is fair-play--since neither conservative nor liberal interpretations of law are based on "objective" foundations of what the law "is", liberals should not feel skittish about utilizing legal principles to secure their political ends; much as conservatives were already doing in the disguise of "rule of law."
Now maybe "rule of law" was always kind of fake. But maybe it also really constrained people in real life. So in the third generation, conservatives come back and violate rule of law principles openly and not secretly, and liberals are deprived of an important argument that they formerly (in the first generation) used against that.
This is essentially Seidman's point: The Bush revolution shows (1) how deconstruction was right from the start, and (2) how liberals shouldn't say so! Because the important project is to oppose the Bush revolution, and you can do that more effectively if you use the weapon of rule of law arguments.
There's nothing new to this technique, however, and I'm not sure it's really "deconstructionism" qua deconstructionism. Marcuse and the Frankfurt School posited the idea of capturing language to capture institutions in the early thirties, which makes this a pretty intensely political project, regardless of Derrida's and DeMan's (and Fish's etc) pose that it's just an interpretive technique. It is more like radical politics posing as grammar. So which came first - the capitalism and traditional social order-hating left wing chickens (Marcuse, Derrida), or the ethnic supremacist humanity hating right wing nazi (DeMan and his progeny)?
This roughly parallels Straussian arguments regarding natural law. Where it goes off the rails is that the "not saying so!" is fundamentally illiberal. If you want liberalism, you have to deny the truth of the deconstructionist thesis point blank, not simply sweep it under the carpet.
John Hasnas has a great article that tracks the contours of the determinacy debate and concludes that the true legal realists would heed public choice and other disciplines that tend to support skepticism of government.
See Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45 Duke Law Journal 84 (1995). If you Google John, you'll find his website, which contains a link to the full text of the article.
Hope all is well.
The real problem here is that it isn't possible to have a significant idea on one side of the ideological spectrum that doesn't end up on the other side as well. Thus, we see the right embracing radical crit-lit rhetoric; Hezbollah using street protests to attack democracy; fundamentalists (both Christian and Islamic) gaining strength from tv and the internet; Napoleon putting Enlightenment rationalism to the service of conquest, etc. It's a Hegelian dialectic of political strategies.
As a corollary, IMHO, it is a fundamental error for anyone to believe that developing a new political tactic will help their cause rather than hurt it in the end. The crit-lits were unusually forgetful of this.
Yep. Once you open up the meta-narritive it is then open to the counter meta-meta-narritive. Ad infinium. i.e. turtles all the way.
De Man's brand of deconstruction was different from Derrida's, and it's the latter that surely must have influenced CLS -- there's a sort of gleeful anarchy (an-arche, right?) in Derrida's work that would appeal to a certain brand of leftist.
By contrast, de Man's was a rather gloomy approach, a sort of negative theology of meaning perhaps, that grew up out of very specific &esoteric questions in literary theory. He was interested in broadening its application to political texts in his last work, but didn't get very far with that.
De Man's deconstruction is completely inapposite to legal studies, insofar as law has to be practical by its nature -- we have to pretend that there are determinate meanings, even if the de Mans "prove" there aren't. ("What is proof?" asked Pilate.) To borrow Nietzsche's formulation, the will to power wins out over the will to truth.
In the 80's, the proponents of CLS recognized that they were opposed to both Liberalism and liberalism. I can't say whether that has changed since I stopped paying attention about 20 years ago.
The thing is, we aren't taking about some legal facade that was erected wholesale and passed off as infallable. Rather it is a legal tradition that evolved with these difficulties in mind. There are methods and procedures that exist in a common law system, and rules of interpretation that if followed, produce rule of law despite the indeterminacies that crop up.
Sure, the traditions of the legal system don't perfectly produce rule of law, and they depend to some degree on good faith, but their occassional failure is not grounds for abandoning the whole project, since those traditions of interpretation were assumed by the writers of our constitution and thus are themselves a part of the meaning of the texts they are used to interpret.
So it should be no surprise that aboandoning rule of law creates indeterminacy — of course texts become wildly indeterminate when you slough off the unwritten, but entirely intended, aspects of their meaning.
In my experience at a top-ranked liberal arts college in the early '00s, Critical Lit, Critical Race, and related illiberal theories are now the tail that wags the dog of the campus Left. More mainstream and moderate liberals are sometimes uncomfortable with it, but they go along with it out of either apathy or fear of ostracism.
Yes!
Best,
Matt
In other words, Derrida should be warned: without the punch line, this post means Foucault.
With respect to political spin, that's been around forever. I believe that Upton Sinclair remarked almost a century ago that it is hard for people to believe things when their job depends on them not believing them. Yoo worked for an administration which wanted to torture; he came up with arguments that would, ostensibly, let them do it.
The other aspect of it is the fact that even though I believe strongly in my profession, the fact is that not every lawyer takes his or her obligation to use only those means that are consistent with the law seriously. What that means is that we aren't allowed to advocate anything that might serve our clients' interests; rather, we are required to say "no" to our clients when they ask us to do things that are not justified either by existing law or some good faith argument regarding the recognition of new law. Many lawyers ignore this entirely; if the client asks them to argue something is legal that is illegal, they figure that their job is to do so and to let the courts reject the argument. (The problem, of course, is that the Bush Administration maneuvered things so that it is possible that no court will ever rule on the merits of Yoo's arguments.)
Neither of these things have anything to do with deconstruction, and they have both been around a long, long time. Of course, if Yoo had followed the precedents establishing what constitutes torture rather than the precedents as to how to engage in political spin and be an unethical lawyer, we'd be better off.
I would disagree. The fact that people fail to agree on the meaning does that mean that there are multiple meanings; just that some of them are wrong. The extremes of deconstruction - that there is no meaning to anything - are total nonsense. If something is deliberately ambiguous, you don't need critical theory. And if not, it has a meaning; if people are incapable of realizing it, that just means they are wrong. Roe v. Wade is not an instance where multiple meanings were possible - it's simply a bad decision.
Groan. In that spirit, I'll offer my title for a book on probate law: "Where there's no will, there's a way out".
Nevertheless, I'm confused. Many CLS scholars point to indeterminacy not as a technique to advocate for just outcomes, but as an explanation for legal outcomes favorable to the powerful. For example, crits have theorized that legal decisions regarding race and education tend to favor white elites, and only offer victories to minorities where the interests of those minorities and the establishment align. See Derrick Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980). The indeterminacy of law, according to CLS, allows those with more resources and connections to exploit the extra-legal influence purchased with their money and power more effectively than would be the case where law dictated an outcome in a formal sense. If this is truly the crits' argument, I could hardly see them being surprised by the Bush Administration's legal tactics. If I'm wrong, and CLS focuses primarily on the exploitation of indeterminate laws to reach their favored outcomes (use of substantive due process to obtain reproductive rights is one such real world possibility), please enlighten me.
Please do not construe this post as a wholesale agreement with CLS, an assumption that law is indeed indeterminate, or a rejection of a superb joke. I'm just confused about the "turnabout is fair play" argument.
Seidman's first point is that for those who weren't already convinced (perhaps because they were born too late to see the previous conservative ascendancy), recent events do illustrate the theory.
His second point is that to the extent people were won over by CLS and stopped believing in the rule of law, CLS weakened the Left by making rule-of-law arguments less powerful; because CLS people who (rightly) doubt the rule of law need to ally with traditional liberals who (wrongly) still believe in the rule of law, they should keep their arguments to themselves.
Not that I think the term "Nazi" has any meaning.
Thanks--totally clear now.
So which came first - the capitalism and traditional social order-hating left wing chickens (Marcuse, Derrida), or the ethnic supremacist humanity hating right wing nazi (DeMan and his progeny)?
The Nazis hated capitalism and the traditional social order, too. No contrast here. Humanity-hating is the end point of hard Left - we need to create New Man because the ones we have aren't fitting into our Plan as we'd like. Ethnic supremacy comes and goes among movements that are tagged as "Right" (Nazis were ethnicist; Italian fascists weren't) and "Left" (Soviet's Russo-centrism and anti-Semitism).
In sum, many people glided easily between the so-called right-wing extremes and the left (e.g., Mussolini himself) because those so-called right-wing extremes are, at root, just offshoots of the Left that adopted a few superficial "rightist" clothes and got mis-grouped with the older, traditional right. Once those movements proved to be so evil, the "right" label became popular with leftists who had a hard enough time explaining away Stalin, so it was a two-fer to expel Hitler from their ranks and assign him to their enemies on the Right.