Legal Amnesia

LEGAL AMNESIA: MODERNISM VERSUS THE REPUBLICAN TRADITION IN AMERICAN LEGAL THOUGHT by Andrew Fraser Not so very long ago — that is to say during the late sixties and early seventies — most Left lawyers understood the law as an ideological and repressive force imposed upon oppressed individuals, groups and classes from without. Viewed from the eye of the political storm surrounding the antiwar and Black liberation struggles, the conclusion that the law was a prime instrument of ruling class hegemony seemed obvious. Before the bar of progressive opinion, radicals presented their indictment of the entire juridical apparatus of the American state sub nomine the law against the people. The law was dismissed contemptuously as an elaborate structure of myths, the function of which was to obscure the underlying reality of bitter struggle between social classes. If the forms of legality were obviously ideological shams, the clear remedy was a process of demystification which would strip those illusions away, thus permitting the oppressed classes to abandon the world of legal discourse altogether in favor of popularly-based forms of direct political action. It was all stirring stuff at the time, but nowadays, of course, the New Left has moved off the front pages into the history books and the groves of academe, making it impossible to find anyone who will admit to being a crude instrumentalist. Nevertheless, the radical demand for the abolition of law has lost little of its old ideological potency.' But, then, given the hoary pedigree already attached to radical anti-legal ism in America, why should it have? That particular political nostrum has long been readily available in the intellectual bazaars frequented by the American Left. Radicals seeking a quick ideological high have always been able to denounce the law and all its works as a form of idolatry designed to mystify and confound the forces of popular democracy. But, however perennial its appeal may have been, that radical hostility to law has little to recommend it as an intellectual or political strategy. Too often, the radical impulse to dissolve the bonds of established legal authority in favor of some higher law has restulted in a brand of moral absolutism which offers little in the way of effective solutions to the evils and oppression which it attacks. The abolitionist refusal to recognize a Constitution which recognized slavery is but one example of an American radical movement prepared to overturn established legal institutions in order to vindicate its own sense of righteousness — at the cost, if need 1. Robert Lefcourt (cd.), Law Against the People: Essays to Demystify Law, Order and the Courts (New York, 1971); Cf., David Kairys (ed.), The Politics of Law: A Progressive Critique (New York, 1982). 15 16 ANDREW FRASER be, of abandoning the slaves of the South to their fate. The latest turn in radical legel thought augurs no better for the future. It is true that the crudities of Marxist instrumentalism have apparently lost much of their charm — but for all the wrong reasons. Instrumentalist theory is now regarded as hopelessly inadequate, not because it refuses to recognize the deep-rooted historical relationship between American law and the constitution of republican freedom, but, rather, because it appears to bear a strong family resemblance to ninteenth century bourgeois positivism. Given that intellectual kinship, Marxist instrumentalism is, paradoxically, seen as being too far removed from the traditions of popular militancy which allegedly nourish radical thought. Both positivist and instrumentalist theories treat the law as an expression of a sovereign will standing above and beyond those governed by legal rules. The validity of those rules is, moreover, a matter to be tested by a set of purely formal criteria internal to the legal system. Those criteria direct the officals who administer the legal system to determine merely whether any given rule is a genuine expression of the sovereign will. For the positivist, it follows that the willingness of the population at large to accept the "validity" of a given rule has a purely sociological rather than legal explanation. 2 Similarly, the Marxist instrumentalist would account for the subjective internalization of law exclusively in terms of domination, oppression, and ideological manipulation. For that reason, by the end of the seventies, most radical legal intellectuals had come to reject instrumentalism on the ground that it allowed no room for the role played by all social actors, including even oppressed groups and classes, in the constitution of legal order. Few people would deny that it makes little sense to present the law as a simple tool of the capitalist class. But, having rejected such obvious claptrap, radicals have shown little inclination to question their deeper assumption that formal legal institutions must always act (albeit in a complex and contradictory fashion) as engines of oppression. Instead, contemporary progressive lawyers, true to historical form, continue to insist that an organic link between legal order and the process of emancipation exists only insofar as law can be understood as an aspect of a social praxis which is deeply implicated in the constitution of the entire social order. Having come to conceive law-making as a form of praxis,1 progressive lawyers have insisted that the formalist distinction between legal and political discourse must becomethemajortarget of radical critique. Most critical legal scholars now proceed on the assumption that the historical role of the formalist tradition has been, not only to conceal the real sources of domination and illegitimate hierarchy by maintaining an artificial boundary between the law and politics, but also to repress and deny the element of praxis in law-making 2. For a modern, and more sophisticated, analysis of legal validity in something like those terms, see, H.L.A. Han, The Concept of Law (Oxford, 1961). 3. See, for example, Andrew Fraser, "The Legal Theory We Need Now," Socialist Revieio 40-41 (July-October 1978); Karl Klarc, "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness," (1978) 62 Minessota Law Review 265. 4. Karl Klarc, "Law-Making as Praxis," Trios no. 40 (Summer 1979). LEGAL AMNESIA 17 by assigning that function exclusively to the specialized institutional agencies of the legal process. Formalism rests on "a belief in the possibility of. . . a method of legal justification that can be clearly contrasted to open-ended disputes about the basic terms of social life, disputes that people call ideological, philosophical or visionary." The radical hope of emancipation is therefore made to depend upon the destruction of the formalist claim that doctrinal technique can reveal "the natural legal language of the democracy and the marketplace."5 The intellectual assault on legal formalism denies that the essence of democracy, the family, or of the marketplace can ever be fully or finally embodied in any determinate institutional form. In fact, critical legal scholars insist that the deepening incoherence of legal formalism follows directly from its reliance on a background theory that asserts the existence of certain "natural" forms of the democratic republic and the market, forms which, in American law, were allegedly identical with the already existing forms of corporate and governmental organization and practice. Accordingly, private law was conceived as a regime of property and contract rights geared to facilitate the natural operation of the marketplace, while public law sought to uphold a scheme of ordered liberty based on the concept of private, fixed immunities from governmental action. So long as the market order seemed natural, the scheme of ordered liberty simply incorporated that market system.6 But what happens when the belief that the market (or the democracy or the family) has a natural legal structure no longer seems tenable? In the post-New Deal era, a growing awareness that the form of the marketplace is largely a product of political and governmental action has undermined the basis for the policy of absolute abstention from judicial or legislative interference with the regime of property and contract rights. Rights have come to be conceived as conditional and contingent — no longer "natural." Moreover, they are conceived as conditional and contingent upon the outcome of political and ideological struggle. At that point, its critics assert, the formalist effort to construct an elaborate doctrinal edifice upon the foundation once provided by the assertedly natural forms of the democracy or the marketplace reveals itself as an attempt to crystallize a given set of power relations.7 Once again, radical lawyers have reached eagerly for the obvious conclusion. Legal formalism, they claim, gives doctrinal expression to a reified institutional logic of hierarchy and domination. It represents, in other words, a kind of "frozen politics" which serves only to interrupt and contain the "fighting over the basic terms of collective life." Against that formalist tradition, radical lawyers are now being urged to create the means to enhance the society's capacity for self-revision. No area of social life, it is said, should be allowed to immunize itself from challenge and revision in the course of 5. Robcno Mangabcira Ungcr, "The Critical Legal Studies Movement," (1983) 96 Harvard Law Review 563 at p. 564, 567-70; see also, Duncan Kennedy, "Legal Formality," (1973) IJournalof Legal Studies 351. 6. linger, op. cit., pp. 570-73. 7. Ibid. pp. 567-670. 18 ANDREW FRASER ordinary social activity. Modern legal consciousness, it would appear, now rests upon a vision of radical contingency according to which it is all politics. Everything is up for grabs, including our capacity to evoke anew the spirit of a time when the distinction between law and politics represented something more than a superseded state of false consciousness.8 Modernist Revivalism The radical attack on legal formalism has been spearheaded by a group of academic and practicing lawyers associated with the Conference on Critical Legal Studies. The work of the Conference scholars represents a clear modernist revival of the anti-institutional themes which have been a hallmark of American religious and political radicalism ever since the Great Awakening of the early eighteenth century. Justas the evangelical spirit has always regarded the ordered institutional life of the "legal" religion rooted in a settled parish as a barrier to the true virtue attainable only through the direct and irresistible power of grace, the contemporary critical legal studies movement has become wedded to an "enthusiastic" vision of emancipation in which the reified, institutional life of society will give way to that "indivisible and whole way of being-in-a-group" which, alone, could restore in reality the "disrupted communion" promised in imagination by the law.9 Insisting as it does that the law represents a reified, and hence purely imaginary, form of social cohesion, the critical legal studies movement has generally failed to recognize that the institutional boundaries between legal and political discourse, like the distinction between public and private realms of human experience, might actually serve as a point of resistance to the socially corrosive "dynamics of unopposed capitalism."10 Almost without exception, critical legal scholars have allied themselves uncritically with the evangelical crusade waged by cultural modernists against the dead hand of tradition (legal or otherwise). They have, as a consequence, remained blind to, or breezily dismissive of the republican traditions in American legal thought that might be seen as the only antidote offered by historical memory to the inexorable process of institutional breakdown now identified with the experience of modernity itself. To those who remain skeptical as to the eman8. Ibid., pp. 586, 649-50; Mark Tushnet, "Marxism as Metaphor," (1983) 68 Cornell Law Review 281. 9. Peter Gabel,"Reification in Legal Reasoning," Research in Law and Sociology, Vol. 3(1980), pp. 44-46; Of. Alan Heiniert, Religion and the American Mind: From the Great Awakening to the Revolution (Cambridge, Mass., 1966). 10. The phrase belongs to Stanley M. Elkins. Hiscritiqueof the radical anti-institutionalism which surfaced so powerfully in the abolitionist crusade against slavery is written from a Burkean conservative, raiher than republican, point of view. He is not sufficiently sensitive, therefore, io the possiblity that the well developed institutional life of England, which he contrasts favorably to the widespread institutional breakdown of America, served as a crucial support for the corrupt pretensions of a landed and commercial oligarchy that was both hostile to republicanism and deeply ambivalent in its relationship to capitalist modernization. Not all forms of institutional life will foster the development of a virtuous and well-ordered polity. See Stanley M. Elkins, Slavery: A Problem in American Institutional and Intellectual Life (NewVork, 1963). On the ambivalence displayed by the dominant classes in England towards capitalist modernization, see, Martin J. Wiener, English Culture and the Decline of the Industrial Spirit (Cambridge, 1981). LEGAL AMNESIA 19 cipatory potential inherent in the process of capitalist modernization, it might seem that "the most profound radicalism is often the most profound conservatism." " Such a thought has become utterly alien to the spirit of the contemporary critical legal studies movement which seems bent on destroying the few remaining institutional and cultural obstacles to the ongoing capitalist rationalization of everyday life. Put so baldly, this claim might seem harsh and unfair, if not downright absurd. But if, as seems undeniable, the destabilizing imperative of growth already subordinates every dimension of social, public and private life to its own irresistible logic, is it so obvious that "critical" legal theory and practice should aim for the "disentrenchment" of the "formative contexts" of the whole range of practical and imaginative activity available to us? Roberto Unger, in what amounts to the manifesto of the critical legal studies movement, insists that the radical lawyer must adopt the modernist "aim of permanently weakening all those structures of practice and belief that remain impervious to criticism and transformation in the course of normal social activity." In Unger's eyes, legal formalism amounts to "the idolatrous identification of established order with practical or moral necessity."12 Clearly, then, Unger's vision of universal transformability differs not at all from the imperative of growth which already renders the continued existence of virtually every institution and cultural practice within modern society altogether contingent and conditional. For Unger, the extent to which "an entrenched plan of social division and hierarchy predetermines the practical relations among people and thus narrows the ground for experiment" is a measure of the degree to which a given social order is deficient in what he calls "negative capability."13 He proposes to remedy that deficiency by implanting "structure-revising structures" within the living heart of the social process. In essence, Unger's negative capability aims to provide the administered otherness which has become necessary to further growth and social development in the "age of artificial negativity."14 Whether or not the artifical negativity thesis can be used to provide a general explanation for the structural dynamics of advanced capitalism, it seems undeniable that Unger is responding to a perception that something very much like artificially generated negativity is needed to overcome the systemic limits to self-revision imposed by the one-dimensional logic of legal formalism. From a systemic point of view, moreover, that perception is probably well grounded. The one-dimensionality of even the most sophisticated versions of legal formalism is evidenced most obviously in "the principle of institutional 11. T.J.Jackson Lcars, No Place of Grace: Antimodemism andthe Transformation ofAmerican Culture, 1880-1920 (New York, 1981), p. xviii. 12. Unger,op. cit., pp. 660-61; Cf. William E. Connolly, "Civil Disaffection and the Democratic Party," democracy, Vol. 2, No. 3 (July 1982), pp. 21-22. 13. Unger, op. cit., pp. 650-51. 14. Paul Piccone, "The Crisis of One-Dimensionality," Telos 35 (Spring 1978); Tim Luke, "Culture and Politics in the Age of Artificial Negativity," Telos 35 (Spring 1978). 20 ANDREW FRASER settlement" associated with the influential model of the legal process developed by Harvard law professors Henry M. Hart and Albert M. Sacks in the nineteen-fifties. Asserting that the legal order embodied a set of shared social purposes, Hart and Sacks claimed that "a decision which is the duly arrived at result of a duly established procedure for making decisions . . . 'ought' to be accepted as binding upon the whole society unless and until it has been duly changed."15 In the circumstances of the nineteen-sixties it became apparent that strict official adherence to such a principle would effectively license the annihilation of all forms of social specificity and otherness that, voluntarily or involuntarily, resist incorporation into the routinized processes of consensus formation and dispute resolution which underpin the contemporary corporate welfare state. A legal order which recognized the need for negative capability or articially stimulated negativity would turn the principle of institutional settlement on its head. Every decision, indeed, every established institution, would be open to challenge and revision. Individuals and groups would find themselves empowered by "structures that turn the occasions for their reproduction into opportunities for their correction." For Unger, therefore, the enhancement of a society's negative capability would mean not just the expansion of its productive capabilities. It would also mark the appearance of an affirmative vision of the freedom available to "a self that discovers the divergence between its own transcending capabilities and the limitations of the structures in which it lives and then struggles by every means at its disposal to narrow the gap."16 Forgotten Republics The struggle of the transcendent individual against the artificial constrainst imposed by a world of institutions and fixed social roles is a staple ol liberal thought. Ungcr's manifesto represents, in that sense, and in his own words, a kind of "super! iberalism." His stated goal is "to remake social life in the image of liberal politics." Once that is accomplished, social life will become "a series of conflicts and deals among more or less transitory and fragmented groups." Insofar as it identifies liberalism, conceived both as a mode of consciousness and a type of social organization, as the essential ingredient in the shaping of modern legal consciousness, Unger's work is typical of critical legal scholarship generally.17 But the equation of liberalism with modernity has had the effect of consigning the republican tradition in American legal thought to the dustbin of pre-modernity. By establishing the principle of subjective value, Unger claims, liberalism exposed the hollowness of the republican hope that the particular substantive vision of the good articulated within the republican 15. Henry M. Han Jr., and Albert M. Sacks. The Legal Process (Icmaiive edition. Harvard Law School, 1958), pp. 4-5. 16. Unger, op. (it., pp. 650-51, 662. 17. Ibid., p. 602; see also, Roberto Unger, Knowledge and Politics (New York, 1975) and Roberto Unger, Laic in Modern Society (Now York, 1976). It seems difficult to overstate the extent to which Unger has shaped (or reflects) the philosophical premises of contemporary American critical legal thought. LEGAL AMNESIA 21 polity might overcome the contradiction between self and society. Once that contradiction was opened to view in liberal thought, it was no longer possible to conceive the state, in Aristotelian terms, as "an association ol persons formed with a view to some good purpose." The basic premise of liberal thought is that all values are individual and subjective. They are "individual in the sense that they are always the objectives of particular individuals." They "are subjective in the sense that they are determined by chance. Subjectivity emphasizes that an end is an end simply because someone holds it, whereas individuality means that there must always be a particular person whose end it is."18 Given the subjectivity of values, a liberal jurisprudence can accomplish no more than the balancing and adjustment of competing interests; a republican jurisprudence is no longer even conceivable.1'1 From the standpoint of what Unger calls total criticism, the republican tradition is bound to appear as a species of mythic consciousness. In a disenchanted world, mythology offers no escape from the contradiction between self and society. Any attempt to overcome that contradiction by establishing a regime of shared social values will be trapped, Unger alleges, in a vicious circle. Given the principle that all values are subjective and individual, "the making and application of laws will depend on choices that cannot be justified and therefore have to be perceived as pure domination exercised by some men over others." It is impossible to escape the principle of subjective value withoutfirstchanging the reality of domination. That, however, presupposes, in turn, the prior existence of some regime of shared values. But the liberal principle of subjective value denies the possibility of such a regime.20 In fact, Unger's vicious circle exists only so long as one assumes that the rational justification of a particular subjective value can, in principle, only be expressed in the timeless language of universals. That is an essentially Christian assumption. From the moment the early popes donned the mantle of imperial authority in the name of an universal and general Christian society embracing the whole humanity, Christian social thought was forced to deny the possibility of ever achieving afinalreconciliation of the contradiction between universal and particulars within the worldly boundaries of time and space. By contrast, "the republic or Aristotelian polis, as that concept reemerged in the civic humanist thought of the fifteenth century, was at once universal in the sense that it existed to realize for its citizens all the values which men were capable of realizing in this life, and particular, in the sense that it was finite and located in space and time."21 The republican tradition in American legal thought sought to achieve a similar reconciliation of the universal and particular within the framework of a federal Union governed by a natural aristocracy of talent, virtue and intel18. Unger, Knowledge and Politics, p. 26. 19. Unger, "Critical Legal Studies Movement," pp. 601-2. 20. Unger, Knowledge and Politics, pp. 1-3, 103. 21. Lauro Marlines, Power and Imagination: City-States in Renaissance Italy (New York, 1980), p. 125; J.G.A. Pocock, The Machiavellian Movement: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, 1975), p. 3. 22 ANDREW FRASER ligence. The republican lawyer was necessarily a statesman inasmuch as the unity and identity of the republic through time and across space depended upon the capacity of both bench and bar to develop and nurture the forms of practical intelligence associated with the faculty ofjudgment. The capacity for prudential judgment rests upon a recognition that a choice made between goods which make incompatible claims upon our practical allegiance will not destroy the moral authority of the alternative not chosen. A judge in antebellum America who chose to uphold the Fugitive Slave Act out of a concern to preserve the Union was not necessarily denying the sinfulness of slavery. Rather, he was recognizing that we cannot always do everything we ought to do. The Tightness of a particular choice therefore, could be judged only in terms of some conception of the unity of the life of the republic. That conception of unity would take the form of a historical narrative within which the life of the republic could be seen to occupy a time and space of its own, stretching back to the moment of its foundation and forward to its, perhaps inevitable, end.22 Within American legal thought, the moral force of that republican tradition has been consistently undercut by both the evangelical passions of Protestant Christianity and the vast expansion of mobile property spawned by the spread of capitalist social relations. The anti-institutional spirit of evangelical Christianity has evinced a persistent hostility to the worldly structures of the body politic. The evangelical mind has always located the source of virtue in an experience of grace transcending the secular preoccupations of prudential judgment. While enthusiastic religion worked to loosen the worldy bonds between individuals, the rise of a capitalist market economy threw those same individuals into a desperate scramble after the symbols of material success. Once the evangelical mind managed to interpret material prosperity as a sign of God's redeeming grace, the life of the republican body politic was inevitably subordinated to the imperatives of economic growth and development. The republican tradition spawned by the Italian Renaissance was relatively pure by comparison. It did not understand change as a progression towards ever-higher forms of life. As early as the thirteenth century, "The world in which the good life was possible seemed to stretch not much further than immediate political horizons." According to Pocock "the process of change that the Aristotelian intellect singled out was that by which a thing came to be and then not lobe: physis, the process by which it fulfilled its end, perfected its form, realized its potential, and then ceased — all of which are extensions of theideaofcomingtobeand then not to be. All things come to an end in time." In republican thought the preservation of a particular polity through time depends upon the existence of a citizenry committed to the particular purposes for which the state had been founded. By the eighteenth century, English republicanism recognized that there must exist "a material founda22. Rufus Choate, "An Instrumetcmality of the State," in Charles M. Haar, The Golden Age of American Law (New York, 1965), pp. 20-25; AlasdairMacIn(yre,-4/i«r Virtue: A Study in Moral Theory (Notre Dame, 1981) pp. 144-45, 208-09 LEGAL AMNESIA 23 tion, the equivalent of Aristotle's oikos, for [the] independence, leisure and virtue" of the civic individual.23 Virtue could not reproduce itself from itself. As a consequence, the common law could be interpreted as bulwark thrown up by the ancient constitution to safeguard the material foundations of civic virtue. The traditional logic of property could therefore be conceived, as it was by Blackstone, as the body of rules and principles governing the relationship between men and the external things of the world. By the same token, authority was vested in natural persons, rather than in an impersonal and open-ended process within which one form of social or institutional life would disappear only to be replaced by another. The fate awaiting that republican tradition in America was captured in microcosm by the history of the early American business corporation. The business corporation, after all, did not simply spring into being as a full-blown private economic unit of capital accumulation. In the early years of the American republic, the private corporation, far from representing the dynamic cutting edge of capitalist expansion, was subjected to fierce radical attacks as a bastion of monopoly and special privilege narrowing the range of opportunities available to the upwardly mobile and aggressive entrepreneurial spirit of the times. That criticism was not misplaced. In fact and in law, the private corporation was a body politic in the traditional Aristotelian sense, constituted by special act of the state legislatures. Whether it was chartered for charitable, educational, religious or business purposes, the private corporation stepped forth as a "little republic," an "association of persons formed with a view to some good purpose."25 The particular purposes to be served by a given corporate enterprise were specified in its charter. Because die powers granted by the charter defined the political identity of the body corporate, the common law doctrine of ultra vires could be invoked to block even a voting majority of shareholders intent upon abandoning the original object of the enterprise so as to pursue some other, potentially more profitable, line of business. The ultra vires doctrine was clearly premised on the assumption that the members of the corporate body politic shared a world common to them all and distinguishable from their privately owned places within it. It was taken equally for granted that the prudent management of that common enterprise would require some degree of civic consciousness among the shareholders.26 In order to facilitate the emergence of such a civic ethos, authority within the body corporate generally remained vested in a body of natural persons. As they came together in the public sphere constituted by the general meetings of the body corporate, the shareholders did not usually represent the mere personification of their individual capitals. Rather, particularly in the case of banks and insurance companies, voting rights were often distributed accord23. Pocok, op. cit., pp. 5, 450. 24. William Blackstone, Commentaries on the Laws of England. Vol. 2 (Chicago, 1979; original ed. 1766), p. 2. 25. Andrew Fraser, "The Corporation as a Body Politic," Tetos 57 (Fall 1983). 26. Ibid. 24 ANDREW FRASER ing to regressive schemes limiting the voting power of large shareholders. It was not uncommon to find provisions prescribing the maximum number of votes (often ten) exercisable by any one shareholder.27 So long as the members of the body corporate acted together in their natural capacity, it remained a political institution. The power wielded by the corporation in its external relations was, therefore, in important ways, a species of political, and not merely economic, power. Not surprisingly, then, the identity of the corporation as a body politic represented a direct affront to American radicals afire with the anti-institutional passions spawned by evangelical Protestantism. In the end, the destruction of the corporation as a body politic coincided with the absorption of the private business corporation into precisely that sort of impersonal and open-ended process of capital accumulation that American radicals would come to interpret as a progression towards ever-higher forms of social life. Capitalist Rationalization and the (Social) Science of Law The radical anti-institutionalism which now finds expression within the critical legal studies movement seeks to release the immanent, albeit repressed, logic of the social life-process. The self-proclaimed historical role of the movement is to speak with the voice of an authentic otherness repressed and denied by the reified institutional forms which persuade people that "all the hierarchical relations in which they live and work are natural and necessary."28 Unfortunately, by identifying legal discourse, as such, with mystification and reification, critical legal scholars have simply transmogrified the liberal morality of self-interest into a romantic and now openly irrationahst morality of self-expression.2" It has become an article of faith among leading figures in the critical legal studies movement that to treat any established institution — past, present or future — as a legitimate repository of valid moral authority is to prostrate "the personality to an idol that it mistakes for its own indefinite or even infinite self." Having conceived institutional life as a crystallized form of illegitimate hierarchy, "the only thing to which the personality can give final authority is itself." Once the individual has been so constituted as the ultimate arbiter of moral values, radical critique is transmuted effortlessly into a Nietzchean exaltation of the will to power.30 Modernist lawyers proclaim that all attempts at the rational vindication of morality have failed. It follows that belief in the tenets of morality can only be explained "in terms of a set of rationalizations which conceal the fundamentally non-rational phenomenon of the will."11 It is that same preoccupation 27. Sec, for example, "An Act to incorporate sundry persons by the Name oft he President and Directors of the Union Bank," (June 25, 1792), Laws of the State of Massachusetts, Vol. 2 (Boston, 1780-1807). 28. Robert Gordon, "New Development in Legal Theory," in Kairys, op. cit., p. 287. 29. Cf. Gerald Siourzh, Alexander Hamilton and the Idea ofRepublican Government (Stanford, 1970), pp. 93-4. 30. Ungcr. "Critical Legal Studies Movement," pp. 660-61; Maclntyrc, op. cit., p. 108. 31. Maclntyre, op. cit., p. 111. LEGAL AMNESIA 25 with the phenomenon of the will which has led critical legal scholars to conceive the goal of their projected program of institutional and doctrinal reforms as a process of empowerment. The experience of empowerment involves an open-ended process of self-transcendence which must treat even the distinction between self and other as the product of a reifying logic of domination. Unger's disciples within the critical legal studies movement now look, forward to a form of human discourse which has "ceased to reflect a distinction between self and other, or a preoccupation with that dichotomy or categories derived from that dichotomy."32 Pushed to its logical extremity, the anti-institutionalist ideal of self-expression culminates in the totalitarian impulse to dissolve both self and other into an overarching "ideal of the social." The mature ideal of the social eschews commitment to any particular substantive vision of the good. Instead it is grounded in the image of a fully reflexive legal order — a legal order, that is, which institutionalizes the individual and collective capacity for self-transcendence. Unger's "negative capability" might be conceived, therefore, as an index of the organizational reflexivity which would be necessary to overcome the persistent tension between function and performance within the social subsystems of a functionally differentiated social system. Negative capability, in other words, is a measure of the evolutionary potential inherent in a given legal order. The ideal of the social therefore locates both self and other within the framework of a social evolutionary model of legal and moral development.33 Having said that, it becomes vital to recognize that the Ideal of the social is by no means the exclusive intellectual property of the critical legal studies movement. That ideal was born and grew to maturity in America during the heyday of legal formalism. It found some of its earliest nursemaids in the new professional law schools which sprang up in the late nineteenth century to follow the lead established by Harvard. Paul Piccone has suggested that "the age of one-dimensionality" made notorious by Herbert Marcuse "was only a transition period between entrepreneurial capitalism and the full domination of capital."34 The American law school still belongs to that era. It is quite clear that the Harvard case-study model of legal education represented a direct response to the crisis of authority entailed by the disintegration of the autonomous "island communities" of nineteenth century America. As the rising tide of capitalist rationalization progressively obliterated traditional sources of social specificity and political negativity, members of the traditional gentry class, and lawyers in particular, were forced to recognize that their authority would have to be reconstituted on a solid scientific footing.35 32. Ungcr, "Critical Legal Studies Movement,"passim; Clare Dallon, Review of Kairys(ecl.) The Politics ojljiw, (1983) 6 Harvard Women's Law Journal, 229 at p. 2 4 1 . 33. Cf. G u n t h e r T e u b n e r , "Substantive and Reflexive E l e m e n t s in M o d e r n Law," (1983) 17 Law and Society Review 239. 34. Pitcone, op. cit., p. 45. 35. T h o m a s L. Haskell, The Emergence of Professional Social Science: The American Social Science 26 ANDREW FRASER By the end of the ninteenth century, lawyers could no longer rest their claims to moral and political authority upon the unbroken continuity of professional traditions or the ancient rituals governing the "artifical reason" of the common law. As American society became more interdependent with the growth of a national economy and large-scale corporate enterprise, the isolated "island communities" characteristic of the pre-industrial world came to be more and more influenced, if not dominated by events and persons at a distance from themselves. The search for the effective cause of events occuring in one's own immediate environment necessarily became more complex and mysterious: "One's person milieu which is the source of the average man's entire conception of the larger society, was drained of vitality and made transparent, so to speak, to the play of influences originating far beyond the individual's range of vision." That being so, it became neccsary to expand the range of inquiry and to change the conditions of satisfying explanation. "Common sense fails and the claim of expertise gains plausibility." As Thomas Haskell has shown, members of the traditional professions had to acquire a general understanding of social causation, one which extended beyond the specific circumstances of a given time and place. Only in that way could they continue to perform their traditional social function which "was to ascertain causation and to mediate between the island community and the outside world."3" It followed that "the movement to establish authority required that there be a science of society." The task of promoting the development of such a science was undertaken by the American Social Science Association which (like the American Bar Association which was founded under its auspices) sought to create a community of inquiry which would serve "to identify competence, cultivate it and confer authority on those who possessed it in accordance with universalistic criteria or, more realistically, criteria that were not in any obvious way personal, partisan, or particular." The two best-known proponents of the case-study method of legal education were both active members of the American Social Science Association. As conceived by President Eliot and Christopher Columbus Langdell at Harvard, the case study method was clearly intended to reconstitute the legal profession as an especially select community of the competent. The professional academic practitioners of the case study technique soon set about "enriching" the "artificial reason of the common law" with such "scientific" concepts as causation, will, fault and forseeablity. Langdell's claim that it was possible to discern afinitebody of doctrinal principles beneath the swelling mass of particular cases represented a first step in the effort to establish a science of law which might someday become a vital element within a more comprehensive and developed science Association and the Nineteenth Century Crisis of Authority, (Urbana, 1977); see also, Robert H. Wiebe, The Searchfor Order, 1877-1920 (NewYork, 1967). Wiebejp. xiii) argues that "America during the nineteenth century was a society of island communities. Weak communications severely restricted the interaction among these islands and dispersed the power to form opinion and enact public policy . . . The heart of American democracy was local autonomy." 36. Haskell, op. at., pp. 32-46, 81-89, 2 2 l ' LEGAL AMNESIA 27 of society.37 That effort to reconstitute traditional authority on a social scientific basis clearly placed a premium on the acquisition of formal educational credentials. Admission to the community of scientific, managerial and professional experts who would henceforth shape the evolution of American society could only be gained through a recognized process of certification. Through the early years of the twentieth century the leaders of the American Bar Association waged a determined and successful campaign for higher educational standards within the legal profession. By mid-century a college degree had become the basic prerequisite for admission to law school. At the same time, the Harvard case-study model had become all but universal in university law schools. Taken together those two developments ensured that the most prestigious American law schools would dance to a single time.38 The homogenization of American legal education transformed the republican ethos which had animated the bench and bar of the early nineteenth century into a formalist obsession with legal technique. By asserting that the law could be defined as whatever governments actually do, the legal realists of the nineteen-thirties did not significantly depart from that formalist emphasis on technique. Instead, they helped to usher in the era of one-dimensionality by invoking a set of empirical social science techniques designed to shift the focus of inquiry away from the "law in the books" to the "law in action."39 The fundamental flaw in the early Langdellian scheme was to imagine that the distinctive mode of civic consciousness which had belonged to a republican legal profession could ever be reconciled with the disembodied, depersonalized and decontextualized discursive style sponsored within an advanced capitalist legal system. Once the science of law was tied directly to the science oi society, thelocusof ultimate authority shifted, and was seen to shift, from the polity to the life processes of society itself. The project ofjurisprudential and law reform was therefore inseparable from the wider tasks of social reform and reconstruction. Civic consciousness was replaced by the social conscience. Informed by the techniques of social and administrative science, the social conscience demanded then, as it does now, the progressive erosion of the legal boundaries insulating the public, private and social spheres from each other and from conscious control and manipulation. The tasks of social reconstruction and law reform became the special province of the intellectual. But the appearance of "the intellectual as a social 37. Ibid., pp. 87-89; Anthony Chase, "The Birth of the Modern Law School," (1979) 23 American Journal of Legal History 329. 38. J e r o l d S. A u e r b a c h , Unequal Justice: Lawyers and social Change in Modem America (New York, 1977), pp. 102-129. 39. Cf. John Henry Schlcgcl, "American Legal Realism and Empirical Social Science: From ihe Yale Experience," (1979) 28 Buffalo Law Review 459; John Henry Schlegel, "American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore," (1980)29 Buffalo IMW Review 195; see also, Edward A. Purccll, J r . , The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, Ky., 1973); fora view locaiingthe historical roots of the critical legal studies movement in legal realism, see Note, "Round and Round the Bramble Bush: From Legal-Realism to Critical Legal Scholarship," (1982) 95 Harvard Law Review 1669. 28 ANDREW FRASER type" did not herald the triumph of a New Class of intellectuals over the old class of moneyed capitalists.40 Rather, the process of capitalist rationalization forced both members of the traditional gentry class and capitalist entrepreneurs alike, to become intellectuals in the distinctively modern sense of that word. Even the great moneyed capitalists of the Gilded Age were, as William Appleman Williams has remarked, themselves "intellectuals: individuals who made it their business [literally) to make coherent, inclusive sense out of all the seemingly separate, unrelated facts that came across their desks every day."41 Members of the professional gentry class, faced with the disintegration of their traditional claims to authority, were forced to follow suit. In the process of transforming itself into a properly credentialled community of the competent, the old gentry class, in effect, committed cultural suicide. It was, however, a form of self-destruction made all the more painless by an abiding faith in the existence of a secular hereafter in which the old gentry class could find itself reconstituted as a scientific, managerial and professional elite charged with the task of overseeing a new era of rational social organization. The failure of legal formalism in America is bound up closely with a systemic need to perfect the techniques of effective social administration. The formalist tradition employed private law categories in the service of a social theory which emphasized the dangers and limitations of state intervention. That theory was not just the residual legal expression of the legacy of localism and laissez-faire dating from the ante-bellum era. Nor was it simply an attempt to shift the economic and social costs of business enterprises to powerless and disadvantaged groups. It also reflected a realistic assessment, informed by the "best" social science of the day, of the simple inadequacy, inefficiency and corruption of the bureaucratic machinery available to the federal and state governments, including, in particular, their judicial branches.42 To the extent that large-scale governmental, corporate and even judicial bureaucracies have now developed an arsenal of administrative techniques which convey at least the illusion of effectiveness, the systemic need for an autonomous and self-contained set of private law categories has been thrown into question. The elevation of administrative expertise has also reduced the faculty of judgment to a legal anachronism. Now that the regulation of social life has become the province of managerial technique, the fusion of intelligence and virtue once presupposed by the act of judging has decomposed into its constituent elements. The cultivation of virtue has been delegated to 40. Christopher Lasch, The New Radicalism in America, 1889-196J: The Intellectual as a Social Type (New York, 1967); cf., Alvin W. Gouldner, The Future of Intellectuals and the Rise ofthe New Class (New York, 1980). 41. William Appleman Williams, Empire as a Way of Life (New York, 1980), p. 101. 42. See, generally, Morion Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, Mass., 1979). LEGAL AMNESIA 29 the morally autonomous private individual, while the exercise of political intelligence has been transformed into a quest for administrative efficiency in the pursuit of pre-determined ends. The boundaries separating public from private law no longer signify the existence of distinct realms of human experience, each of which could be expected to provide individuals with a schooling in the virtues and forms of practical intelligence appropriate to the performance of its own function within the wider society. In the post-realist era of legal scholarship, it might therefore seem impossible to deny "that" 'private ordering' presupposes that public power has established a sphere of rules and enforcement agencies, that the 'unregulated' market is afiction,and that private ordering is itself a mode of public regulation."43 The most influential post-war version ol formalism (the so-called "reasoned elaboration" approach developed by Henry M. Han and Albert Sacks) insisted nonetheless that legal technique itself could provide the basis for a coherent and meaningful distinction between private ordering and the various modes of public regulation. For Hart and Sacks, the law could be conceived as an institutionalized process of consensus formation and dispute resolution. Every society, they claimed, is a "common enterprise" which inevitably generates "questions of common concern which have to be settled, one way or another, if the enterprise is to maintain itself and to continue to serve the purposes which it exists to serve." But not "even' question of group concern . . . can be decided by officials." The legal order therefore "assigns many kinds of questions to private decision, and then backs up the private decision, if it has been duly made, when and if it is challenged before officials." To the extent that the legal order presents the sphere of private ordering, it embodies our shared social commitment to the value of personal autonomy. The commitment to private autonomy does not, however, require a policy ol unlimited deference to the outcomes generated within the sphere ol private decision. Rather, private ordering must be regulated in such a way as "to make the most of its virtues while curbing its abuses." It may happen in some circumstances that the value of private autonomy would be better served if private decision were supplanted "entirely with some form or another ol olfical decision." Legal technique defines the "optimum role" of private decision and, in so doing, makes it obvious that private rights exist as a matter ol public policy.1' The formalist regime of shared social purposes sought, in effect, to reconstitute the entire fabric of social life in its own depersonalized and rationalized image. Operating in tandem with Keynesian techniques ol economic management, the very attempt to obliterate all traces of negativity and otherness through legal strategies such as court-ordered school desegregation or state-sponsored collective bargaining has simply displaced crisis tendencies from the social and 43. Karl E. Klare, " T h e Public/Private Distinction in L a b o r Law," (1982) 130 University of Pennsylvania him Review 1358 at p. 1415; M a r k T u s h n c t , "Post-Realist Legal S c h o l a r s h i p , " (1979) 15 Journal of the Society of Public Teachers of'Law 20. 44. H a n a n d Sacks, op. cil. p p . 6-9, 209. JO ANDREW FRASER economic spheres into the administrative system itself.45 The result has been to produce what Habermas calls a "rationality deficit" within the administrative apparatus. "On the one hand the state is supposed to act as a collective capitalist. On the other hand, competing individual capitals cannot form or carry through a collective will as long as the freedom of investment is not eliminated. Thus arise the mutually contradictor)' imperatives of expanding the planning capacity of the state with the aim of a collective capitalist planning and, yet, blocking precisely this expansion, which would threaten the continued existence of capitalism. Thus the state apparatus vacillates between expected intervention and forced renunciation of intervention, between becoming independent of its clients in away that threatens the system and subordinating itself to their particular interests. Rationality deficits are the 45. Court-ordered school desegregation might be understood as an attempt to reduce all of social life (including the social right to choose one's associates and ihe private right over one's children) 10 a single set of terms derived from a principle of equality which, properly speaking, belongs to the public realm alone. See Hannah Arcndt, "Reflections on Little Rock," Dissent, Vol. 1 (Winter 1959), pp. 45-56. Within the present scheme of state-sponsored collective bargaining, the statutory requirement that the parties to a collective agreement bargain in "good faith" could be read as a mandate permitting the National Labor Relations Board to scrutinize the substantive fairness of an employer's ofler. According to Karl Klare, only the persistence of the meaningless and incoherent public/private distinction stands in the way ol such an obviously desirable policy. Klare's vision of a "radicalized" Wagner Act would simply collapse the boundary between the collective bargaining regime and the administrative system. That outcome would no doubt resemble the centralized wage-fixation system established under the Australian industrial arbitration and conciliation system. See Klare, "Judicial Deradicalization." It is difficult to see how a centralized arbitration and conciliation system, which, in ellect, establishes trade unions as a constitute!!! element in the apparatus of a corporatist state, could amount to the "radicalization" of the legal regime governing industrial relations. For an analysis of the distinctly non-radical origins of the Australian arbitration system, seejohn Rickard, Class and Politics: New South Wales, Victoria and the Early Commonwealth 1890-1910 (Canberra, 1976). Habermas claims that the "expansion of the areas of stale planning actually makes problematic matters that were formerly culturally taken for grained." If that is so, one might expect that an extension of the state-sponsored system ol collective bargaining which covered, say, faculty members at private universities, would tend to undermine the vitality of those academic traditions which, in however attenuated a fashion, lend support to practices such as collegial decisionmaking. Such cultural traditions, according to Habermas, can remain living only so long "as they take shape in an unplanned nature-like manner, orare shaped with hermeneuiic consciousness" (Jiirgen Habermas, Legitimation Crisis [Boston, 1975], pp. 70-73). Klare believes that, had the Supreme Court upheld the NLRB decision to recognize faculty members at Yeshiva University as employees" under the National Labor Relations Act, the way would have been open to incorporate demands for "a more authentic, participatory voice in workplace governance" into the collective bargaining process in non-academic settings. The tradition of collegial decision making could then, in other words, be "objectivistically prepared and strategically employed" in the service of an adminstrative program "in which workers' sell-learning and team decision-making emerge as valued productive forces." However, the opposite result seems just as likely: laculty members would develop an "employee" consciousness, while academic administrators continue to hollow out whatever remains of the traditions of faculty autonomy and collegial decisionmaking. Once again, the Australian experience is instructive. Academic staff in Australian universities are free to pursue their "industrial" interests belorc arbitral tribunals. University administrators are equally free to treat their academic staff as "employees" and to promote, by fair means or foul, the growth of a passive, public service mentality which is, il anything, actively hostile to anything like participatory democracy in the academic workplace. Cf. Karl Klare, "The Bitter and the Sweet: Reflections on the Supreme Court's Yeshiva Decision," Socialist Review 71 (September-October 1983). LEGAL AMNESIA SI unavoidable result of a snare of relations into which the advanced capitalist state fumbles and in which its contradictory activities must become more and more muddled."46 In such circumstances, it is hardly surprising that the intellectually advanced sectors of the legal-administrative regime should come to abandon the formalist distinction between legal discourse and the ordinary language of political and ideological conflict. It has become almost a truism of modern political theory "that the realization of private capital is politically mediated down to the last detail." So long as the economic system is "regulated and sustained by permanent political intervention," it is hardly possible to conceive an autonomous sphere of private activity, immunized against state intervention by the legal institutions of property, contract and the family.47 That being so, the critical legal studies movement insists that any attempt to preserve the formal distinction between legal and political or moral discourse can only serve the interests of those whose power or privileges are too well entrenched to be threatened by the ordinary conflicts over the use and control of state power. Indeed, the critical legal studies movement clearly represents a direct response to the rationality crisis which has emerged within an American legal order attempting to preserve thefictionsof formalism in the face of the growing politicization of the law. By stripping away thosefictions,the radical critique of formalism aims to provide all those once denied an effective voice in the making and application of the law the power to make themselves heard. The Critique of Professionalism Given that objective, the rationality deficit within the legal system manifests itself most insistently for radical lawyers on the level of everyday legal practice. The erosion of the republican distinction between autonomous spheres of public and private action has given rise to an ideal of law which seeks to mediate between the individual and collective poles of our social being. That polarity, according to a widely-cited article by Duncan Kennedy, is rooted in the structure of human consciousness. It finds its legal expression in two opposed rhetorical modes of legal argument: individualism and altruism, neither of which represents a self-contained deductive system, corresponding to autonomous realms of human experience, but, rather, appears "as a pole or tendency or vector or bias" in an inescapable contest between sets of values and visions of the universe. In mediating the conflict between our individualist and altruist impulses, lawyers necessarily contribute to the making and unmaking of society.48 But, according to critical legal scholars such as William 46. Habcrmas, op. cit, pp. 62-63. 47. See, ClausOffe, "Poliiical Authority and Class Siruciures" in Paul Conncnon.cd., Critical Sociology (Harmondsworth, 1976) pp. 413, 394-95. 48. Duncan Kennedy, "Form and substance in Private Law Adjudication" (1976) 89 Howard Law Review 1685 at pp. 1732, 1712-17, 1724. Kennedy's claim thai it is the function of law to mediate the "luiulainciual contradiction" between the individual and collective poles of our social being has been translated into the sphere of international legal discourse by David Kennedy, "Theses about International Law Discourse" (1980) 23 German Yearbook of International Law 353. Thai article refers to "a basic quandary which is both familiar and elusive. A first statement pf 32 ANDREW FRASER Simon, that task has been rendered inherently contradictory and self-defeating by the one-dimensional logic associated with the formalist ideology of advocacy. For example, because the legal order is conceived as the embodiment of a set of shared social norms which define, among other things, the institutional role of the advocate, litigants are encouraged "to act not as an individual seeking justice but as a conduit for issues and arguments of public interest." The result, in Simon's view, is that those norms are stripped of their ethical significance for both lawyer and client.49 Assuming a posture of neutrality, the lawyer invites the court to treat the client's personal claim, not "as a particular embodiment of a shared value, but rather as an opportunity for the general furtherance of a variety of social norms." Inevitably, the client, too, must adopt an instrumental approach to those social norms, regarding them simply as a means to his own selfish ends. If, on the other hand, the client is unable to identify some widely shared social norm under cover of which he is able to advance his own personal concern, he soon "learns that social norms are neither shared, nor values." So long as the advocate is expected, as a matter of professional ethics, to adopt that pose of neutrality with respect to his client's concerns and values, he will inevitably subordinate those individual values to the collective norms served by the legal order. At the same time, Simon contends, the ethical canon enjoining the advocate to act as the fearless partisan of his client's interests will encourage him to employ those collective norms as mere facts or tools for the manipulation of the law in the service of his client's selfish purposes.30 Having established its incoherence, at least to his own satisfaction, Simon argues that the persistence of the formalist ideology of advocacy, along with the codes of piofessional ethics which represent its formal doctrinal expression, can only be explained as a means of disguising the power wielded by lawyers over the clients. Professional ethics serve to crystallize a set of power relations thereby institutionalizing yet another form of illegitimate hierarchy and domination. The ideology of advocacy insists, lor example, that the principle of neutrality is necessary if clients are to be guaranteed fair access to legal services. But Simon argues that lawyers who decline, for "ethical" reasons, to inquire too deeply into the relationship between their own goals and values the quandary would be: individual nations find in socialization both the source of their identity and threat totheir existence. Their identity as sovereign stales with legitimate and respected internal authority depends on their participation in an international society which is not compatible with that sovereign authority. They cannot be both internally absolute and externally social. Moreover, their ability to be social depends upon their community membership. This comradiction seems inherent in the idea of a boundary between domestic and international life" (p. 361). It would be interesting to review David Kennedy's abstractly conceived and unprobletnatically posed notion of international "socialization" in the light of Inunanuel Wallerstein's Vie Modem World-System. Vol. 1. Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. (New York, 1974), Vol. II. Mercantilism and the Consolidation of the European World-Economy, 1600-1 TiO (New York, 1980). 49. William H. Simon, "The Ideology of Advocacy: Procedural Justice and Professional Ethics" (1978), Wisconsin Law Review 29, pp. 85-86. 50. Ibid., pp. 36-37, 85-86. LEGAL AMNESIA 33 and those of their clients must, in the end, necessarily adopt the expedient of imputing to the client a standardized set of goals more or less appropriate to the client's legal problem — as defined by the lawyer. The real consequence of professional ethics then is to undermine the client's autonomy and heighten his dependence on the lawyer.51 In place of professional ethics, Simon proposes a form of "non-professional advocacy" which would permit lawyers to inquire into the goals and values of a prospective client and, if necessary, to call upon the client to justify those goals. In essence, Simon's critique of the formalist ideology of advocacy seeks to create a form of legal discourse which will permit the law to penetrate and reconstitute the inner life of both lawyers and clients. His goal is to overcome the "discontinuity between experience in the social world and experience in the world of ostensibly autonomous legal institutions." In its present form, legal discourse is rendered ineffective as a means to personal growth by a code of professional ethics which prevents access to the particular subjectivity of the individual client. Simon therefore suggests a redefinition of the advocate's role which would require "that the problem of advocacy be treated as a matter of personal ethics."52 Simon's focus on the personal ethics of the non-professional advocate represents, in effect, a form of artificial negativity designed to unblock the institutional stasis engendered by the one-dimensional logic of legal formalism. The domination of legal institutions by a "trained occupational minority" disrupts the continuity which should exist between legal and social experience. Because the law is a crucial matrix in the constitution of our social identity, it "should be accessible to those who are governed by it."53 Legal discourse must recognize and accomodate the particular values and ends of the individual client. Both lawyers and clients must, accordingly, make their values and ends the objects of a discourse which serves to expose the hidden, inner life of the individual to the compelling logic of the social. Thefirsteffect of such a discourse would be to dissolve the moral authority of established institutional bonds and affiliations. If the problem of advocacy is "treated as a matter of personal ethics," no claim made by either advocate or client could be validated merely by reference to the speaker's social position or authority. The obligations that arise from personal ethics "apply to people merely by virtue of the fact that they are human individuals. . . they do not follow from social role or station." The relationship between lawyers and clients would become self-grounded and fully reflexive. Like Gouldner, Simon believes that the culture of critical discourse has come to embody the 51. Ibid. Professional ethics may lead the advocate to impute those standardized goals to a client even when the client explicitly repudiates those goals. The advocate's justification would be that the client is not the best judge of his own best interests, legally speaking. The case of Gary Gilmore, a convicted murderer who refused to consent to an appeal against his own death sentence, provides a dramatic illustration of that possibility. The lawyers who had represented Gilmore at his original trial filed such an appeal over his repeated objections. See the account of this case in Norman Mailer, The Executioner's Song (New York, 1980). 52. Simon, op. cit., pp. 114-119, 131. 53. Ibid., p . 117. 34 ANDREW FRASER self-transformative potential of a society rendered open and transparent to itself by the reflexive logic of critical speech. Once the culture of critical speech becomes firmly rooted in the practice of non-professional advocacy, no institution could define the obligations of either lawyer or client in advance. A lawyer bound to take responsibility for his own actions could not simply "defer to institutions with autonomous ethical momentum."54 Critique, as others have suggested, would become "a powerful device for stripping away from us, if we choose, the legal abstractions by which we order our perceptions." A critique of contemporary professional ethics would "stand validated" so long as "it influences the audience's experience of and activity within society, in ways suggested by the critique."55 Lawyers and clients would thus be freed to redefine the role and obligations attached to advocacy whenever the personal ethical committments of either party create the need for such redefinition. Far from representing a critical challenge to the dominant forms of power in the contemporary world, Simon's non-professional advocacy would function, like the social work practices which it strongly resembles, "as a relay, a form of surveillance for those who are denied full discursive rights but who are not sufficiently dangerous to require the rigorous surveillance of the institution . . . . " Non-professional advocacy plays that role by, first of all, uncovering the concrete goals and values of the individual client. Once having revealed the client as a subject, the advocate's task becomes one of integrating that subjectivity with the objectifying characteristics of the law (" ... overcoming the discontinuity between social and legal experience"). According to Clare Dalton, "the advocate has a crucial role to play in... the presentation of new voices to decision-makers." Critical legal work therefore seeks new "ways to tap into social experience in the interests of interim decision-making and future theory." Like the social worker, the non-professional advocate speaks for the subject within the object: "the individual within the madman, the criminal or the dying. He speaks for the subject whom others have ceased to perceive, and he also speaks about someone who can return again to subjective status." But even as he represents the subjectivity of the client to the powerful, the non-professional advocate serves as an agent of surveillance and social control by representing the power of the social to the client. The individual client is to be brought to a recognition of himself as "a social subject: a subject marked by his capacities for self-determination, responsible citizenship, and general sociability."56 In Simon's own words: "Indeed, one of the most important effects of non-professional advocacy should be to increase the client's concern for the impact of his conduct on others, and to enlarge the minimal role which norms such as reciprocity and community now play in attorney-client decisions."57 54. Ibid., pp. 131-132; cf. Gouldner, op. cit. 55. Dalton, op. cit., p. 241. 56. Mark Philip, "Notes on the Form of Knowledge in Social Work" (1979), Sociological Review (New Series), 83, pp. 104, 100-103; cf. Dalton, op.tit., p. 248. 57. Simon, op. at, p. 132. LEGAL AMNESIA ]•> The allegiance of Simon's ethical individual is owed,finally,to the transcendent ideal of the social. As we have already seen, the transformation of property into capital submerges both the private and the public realm in the process of social wealth. Mario Tronti has put the point neatly: "When capitalist production has been generalized to cover all of society — all social production has become capitalist production — only then, on this basis, a truly capitalist society emerges as a determinate historical fact. The social character of production has been extended lo such a point that the eniire society now functions as a moment of production." The generalization of capitalist production realized in the form of social capital reduces even the individual capitalist property owner to "a function ol his own capital, and the direct expression of his private properly." With the rise of social capital, power itself becomes detached from the body politic and becomes an attribute of the social. Considered as social beings, men and women gain the power to produce and reproduce themselves as they learn to make and remake society. The only effective limits to that power depend upon the capacity of the imagination and the will to break free of the illusion that any established set of institutional arrangements or gender identities could exhaust all the possible and desirable forms of human association available to us. On that assumption, power can no longer be understood as "an institution, a structure, or a certain force with which certain people are endowed: it is the name given to a complex strategic situation in a given society." The problem for legal modernists, then, is to understand the way in which the formalist belief that "authoritative legal materials — the system of statutes, cases and accepted legal ideas — embody and sustain a defensible scheme of human association" actually works to freeze a given set of power relations.38 By underwriting otherwise illegitimate hierarchies and fixed social roles, the formalist legal order confers a real strategic advantage upon established institutional actors in the struggle to control the shape and direction of social life. That strategic advantage, according to legal modernists, has been encapsulated in and justified by reference to the fusion of knowledge and power realized in the ordinary techniques of social administration. As Unger remarks, "knowledge changes the object by placing it in the state of subordination that being an object implies." It follows that when "the object is another man, every claim by the subject to know him involves a struggle for power."59 To liberate the capacity for collective self-revision is therefore to insist that the set of power relations constituting the social body, including both its institutional carapace and the tissue of individual cells, be rendered open and transparent to itself. The experience of individual and collective empowerment has thus become a vital factor in the "progressive" evolution of the social life-process. As part of that experience, non-professional advocacy will ensure that legal discourse conies to mediate the conflict between individualized and 58. MarioTromi, "Social Capital," Telos no. 17 (Fall 1973), p. 105; sec also, Andrew Fraser, "The Corporation as a Body Politic," Telos no. 57 (Fall 1983); Michel Foucauli, The History of Sexuality, Vol. 1: An Introduction (New York, 1980), p. 93; Unger, "Critical Legal Studies," p. 565. 59. Unger, Knowledge and Politics, p. 204. 36 ANDREW FRASER artificially stimulated instances of negativity and otherness, on the one hand, and the body of positively enacted collective norms, on the other, so as to the transcendent ideal of the social in its drive to attain ever-higher forms of life. A legal order which restricts the exercise of power to (he maintenance of collective norms will run the risk of technical stagnation. On the other hand, a legal order which empowers individuals to treat collective norms as mere instruments in the pursuit of their own selfish ends will, according to Simon, undermine the moral foundations of collective life.''0 One solution to that dilemma is to constitute the non-professional advocate as a kind of relay switch which allows the currents of power unimpeded access to both the individual and collective polarities of our social being, thereby moving closer to the modernist ideal of a pure and open-ended reflexivity built into the very structure of social life. The problem which remains for the rest of us is to find in that ideal of reflexivity and its oxymoronic offspring, the personal ethics of the non-professional advocate, anything more than an euphemistic effort to put the best possible face on the otherwise sordid reality of cultural and moral disintegration in late capitalist society. Republicanism and Professional Ethics Simon's ideal of non-professional advocacy amounts to a frontal assault on the republican tradition of legal professionalism. Within the republican tradition, the ethics of advocacy could never be conceived legitimately as a personal matter. For all those who regularly act as advocates, the ethics of advocacv would necessarily be a matter ol public and common concern. To the republican lawyer, the practice of law would be understood, in Alasdair Maclntyre's terms, as a "form of socially established cooperative human activity through which goods internal to that activity are realised in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of that form of activity." The goods associated with the practice of advocacy can only be achieved if new practitioners subordinate themselves "to the best standard so far achieved, and that entails subordinating [themselves] within the practice in [their] relationship to other practitioners."61 To offer an effective and authoritative guide to practitioners, any standard of excellence must be embedded in a living tradition. It is only "within the context of some traditional mode of thought" that a rational argument concerning the proper role and function of the professional advocate within a republican polity becomes possible. A tradition of practices, including the practice of advocacy, must, in turn, be sustained by some institution or set o( institutions. Moreover, the integrity of a given practice and its capacity to engender respect for the virtues which enable us to achieve the goods internal to that practice must depend greatly upon the nature of the institution within which it is embedded. The virtues appropriate to the practice of republican advocacy 60. Simon, op. cit., p. 84. 61. Maclmyre, op. cit., pp. 175-178. LEGAL AMNESIA 37 will be "fostered by certain types of social institutions and endangered by others." The sort of institutional matrix out of which one could expect the virtuous advocate to emerge is one which situates the individual within "an historically extended, socially embodied argument. . . about the goods which constitute that tradition" of advocacy.62 That being so, one might also expect a republican legal profession to constitute itself as a body corporate and politic. Once it acquired that formal corporate identity, the profession could, not unreasonably, be regarded as "an association of persons formed with a view to some good purpose." The common life of the profession would then "be partly, but in a centrally important way, constituted by a continuous argument"63 as to the nature of a republican legal profession and what should count as good advocacy. The consequence would be a legal profession possessed of a genuine political ethic and a distinctive mode of civic consciousness. A further consequence, of course, would be to make impossible the identification of the virtuous lawyer with the morally autonomous individual. Unfortunately, that equation of the good lawyer with the morally sovereign individual has deep roots in the American past. The republican ethos has never managed to establish a secure institutional foothold in the American legal profession. In the ante-bellum era of revivalism and reform the tide of radical anti-institutionalism washed over the legal profession with a particularly destructive force. The formal constitution of the bar as a body corporate and politic was utterly inconceivable at a time when some state legislatures were prepared to insist that every citizen, twenty-one years of age or older, was entitled to be admitted to the practice of law merely upon proof of good moral character. The most that could be achieved towards the institutionalization of a tradition of republican advocacy was often the creation of a legal fraternity based on informal networks of social relationships. Such an "inner bar" might then resort to the device of professional ostracism to discourage those who insisted upon flouting professional traditions by entering the profession under statutes prescribing no oraniinimal period of formal training.61 After the Civil War, the disembodied logic of capitalist expansion continued to erode the already weakened foundations for any genuine professional or corporate ethos among lawyers. As we have seen, the socialization of capital effectively destroyed the old propertied gentry class. By the late nineteenth century, members of the college educated liberal professions — law, medicine and the clergy — were practically the only surviving representatives of that vanishing gentry class. Gouldner, Auerbach and Magali Sarfatti Larson have all suggested that the efforts made by lawyers and doctors, in particular, to organize professional associations and establish a system of educational credentialling reflected a highly successful and prototypical attempt to 62. Ibid., pp. 182, 206-207. 63. Ibid., p. 206. 64. Alfred Z. Reed, Training for the Public Profession of the Law (New York, 1921), pp. 89-90. 38 ANDREW FRASER achieve incorporation into the new class system spawned by the rise of corporate capitalism. Larson suggests that the professionalizing project, which for lawyers involved the creation of the American Bar Association and the rise of the university law school, is typically oriented towards achieving both control over the market for professional services and also the conquest and assertion of social status lor members of the profession. That quest for social status allegedly led professional organizations like the A.B.A. to develop strategies aimed at enhancing both the prestige and the income — the prime indicators of social status — of A.B.A. members.63 Like Gouldner, Larson views the ideology of professionalism as a device employed by occupational groups in advanced capitalist societies to maximize their returns on the stock of cultural capital which belongs to them by virtue of an elaborate system of educational credentialling. That control over the accumulated stock of cultural capital supposedly then makes it possible for the New Class of professional intellectuals to undermine and challenge the hegemony of moneyed capital. That analysis ignores the extent to which the American Bar Asssociation (and the system of legal education which it actively promoted) can be "best understood as part of a movement to defend the authority of a gentry class, whose sturdiest foundations lay in the professions."''*' Whatever autonomy the legal profession may have retained in relation to the capitalist interests which dominate the contemporary social economy it owes, not to its culture of critical speech, but rather to the determined efforts of nineteenth century republican lawyers to establish a professional ethos rooted in the tradition of civic humanism. Throughout the nineteenth century American lawyers had claimed that members of their profession were bound to observe a standard of morality which necessarily set them apart from the ordinary citizen. That view was given florid expression by George Sharswood when he asserted that "There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that ol the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. There arc pitfalls and mantraps at every step, and the mere youth, at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction."(>7 That morality was the essential ingredient in the distinctive mode of civic consciousness associated with the practice of law. By the end of the nineteenth century it had become painfully evident that a sustained commitment to high moral principle and civic virtue was not going to emerge as the spontaneous product of professional experience. Leaders of 65. Magali Sarfaiti Larson, The Rise of Professionalism: A Sociological Analysis ("Berkeley, 1977), p p . 166-167; Cf. Gouldner, op. cil. and Auerbach, op. at. 66. Haskcll, op. cit., pp. 77-85. 67. George Sharswood, "An Essav on Professional Ethics," (1907) 32 ABA Reports (reprint of 1857 edition), p. 55. LEGAL AMNESIA 39 the legal profession expressed an anxious concern that "the trend of many is away from the ideals of the past and the tendency more and more to reduce our high calling to the level of a trade, to a mere means of livelihood or personal aggrandizement." In earlier times the sanction of professional ostracism had been "sufficient to keep from serious error the practioner with no fixed ideals of ethical conduct." Those days were gone. A new class of men had appeared for whom the good or bad esteem of their professional ostracism had been "sufficient to keep from serious error the practitioner with no fixed ideals of ethical conduct." Those davs were gone. A new class of men had appeared for whom the good or bad esteem of their professional colleagues meant nothing "provided their itching lingers are not thereby stayed in their eager quest for lucre." The very future of the republic was now at risk. Only a formal code of ethics would be able to preserve the historical role of the legal profession as "the keystone of the republican arch of government. Weaken this keystone by allowing it to be increasingly subject to the corroding and demoralizing influence of those who are controlled by graft, greed and gain, or other unworthy motive, and sooner or later the arch must fall."68 But by adopting a formal code of ethics, the A.B.A. was, in effect, acknowledging that the mode of civic consciousness hitherto associated with the practice of law was in an advanced state of decay. The civic morality of the old republican legal profession had rested upon a traditional sense of honor, not upon a set of formally enacted rules.by It is a mistake to treat the ideal of civic 68. "Report of the Committee on the Code of Professional Ethics" (1906) 29 ABA Reports (Part 1), pp. 600-604. 69. Pierre Bourd'teu, Outline ofa Theory of Practice (u. Richard Nice). (Cambridge, 1977), pp. 1417. A sense of honor has been defined by Pierre Bourdieu as "disposition inculcated in the earliest years of life an constantly reinforced by calls to order from the group, that is to say, from the aggregate of the individuals endowed with the same dispositions, to whom each is linked by his dispositions and interests." The sense of professional honor which bound lawyers together during the ante-bellum period was rooted in a set of "customary rules." Like any system of customary law, the professional code of honor always seemed "to pass from particular case to particular case, from the specific misdeed to the specific sanction, never expressly formulating the fundamental principles which 'rational' law spells out explicitly (e.g. all men are equal in honor)." The "customary rules" of professional honor were the product of a small number of schemes of perception embodied in the bodily and psychological dispositions of such lawyers, enabling them "to generate an infinity of practices adapted to endlessly changing situations, without those schemes ever being constituted as explicit principles." As Bourdieu suggests, "Talk of rules, a euphemized form of legalism, is never more fallacious than when applied to the most homogeneous societies (or the least codified areas of differentiated societies) where most practices, including those seemingly most ritualized, can be abandoned to the orchestrated improvisation of common dispositions: the rule is never, in this case, more than a second-best intended to make good the occasional misfirings of the collective enterprise of inculcation tending to produce habitus that are capable of generating practices regulated without express regulation or any institutionalized call to order." It was precisely the absence of a corporate public sphere within which the legal profession could both rationally articulate its own raison d'etre and also work out the practical implications of that rationale, that left a pre-political code o/Vwnor as the sole repository of the professional ethos. To give a professional ethos the normative force associated with a formal code oflaw, the legal profession would have to be recognized as a constituent element in the heterogeneous fabric of civil society. As things stand now, the effort to articulate that professional ethos amounts to little more than a ritualistic, morally barren, and practically ineffective invocation of the homilectic formulas which once expressed the spirit of a code of professional honor according to which much of what really counted in acquiring the virtues associated with the art of advocacy went without saying. 40 ANDREW FRASER morality inscribed in the A. B. A. code of ethics as a mere ideological "residue" which elite lawyers employed in the service of their professional "status project." Lawyers who urged the adoption of a professional code of ethics were not simply attempting to enhance their incomes and social prestige. The code of ethics reflected instead a defensive effort to check the corruption of that set of common dispositions which had formerly been anchored in an informal code of honor. One need not turn a blind eye to corruption, hypocrisy and ideological manipulation within the highest reaches of the corporate bar or the bench to credit the fear of corruption among elite lawyers. One does need to accept in good faith their desire to preserve certain norms of professional conduct in the face of the temptations generated by a runaway economy. Professional ethics may be more than a contradiction in terms. The effort to preserve an ideal of civic virtue as a feature of professional life should not be seen simply as an attempt to disguise "the potential venality of the transaction of services" or a reflection of the peculiar nature of the "professional commodity" sold by lawyers.70 The historical mission of the A.B.A., as originally conceived, cannot be fully comprehended if one understands the association on the model of a "firm" or "enterprise" engaged in monopolizing behavior in the market for professional legal services. Such an analysis must miss the fundamentally important political dimension involved in the A.B.A's professional project. Lawyers, and especially elite lawyers, were determined to retain their role as guardians of a republican polity fast succumbing to a terminal case of corruption. Larson's purely "sociological analysis" remains blind to that essential dimension of legal professionalism in American. Critical Jurisprudence and the Experimental Life Authority now represents itself as the agent of society and has come to speak increasingly with a voice schooled in a reflexive and self-grounded culture of critical speech. But the fact that authority has become detached from a body of natural persons and lodged instead in a system has not necessarily entailed the abject acceptance of the socially pre-given. The reaction of progessive intellectuals to the disintegration of the nineteenth century republican polity has been, rather, to devise a method of conceiving the system as a certain kind of process, as a "structure — denying structure" whose deep logic is moved by the spirit of total criticism. Modernist intellectuals have been articulating that theme since the late nineteenth century. Lincoln Steffens, for example, asserted that social progress required that the "intellectual culture" of the old middle classes would have to give way to what he called the new "scientific culture." Writing in 1930, he declared that "We have to get rid of our old moral culture and learn the new culture, already here in science and in big business: what I call our experimental culture." That new culture would replace the old "logical" method with the "historical experimental method of 'seeing'." Christopher Lasch has summed up Steffen's position with the 70. Larson, op. at., pp. 220-221,213, 216; see also Richard L. Abel, "Why Does the ABA Promulgate Ethical Rules" (1981) 59 Texas Law Review 639; Richard L. Abel, "Toward a Political Economy of Lawyers," (1981) Wisconsin Law Review p. 1117. LEGAL AMNESIA 41 remark that "Intelligence, in short, would have to replace virtue as the acknowledged aim of social life."71 That theme has been taken up again in the jurisprudential writing of the critical legal studies movement. Roberto Unger, for example, has discovered "in every aspect of society a continuation of politics by other means." The object ol critical intelligence, therefore, is to place "the terms of life in common" within "the reach of the imagination and will." To recognize that it is all politics offers the hope "of enlarging democracy until all social life [has] been made experimental." The question confronting us is whether a critical jurisprudence infused with a modernist ethos, which is itself so clearly a product of bourgeois-Christian society, offers any substantial hope of overcoming the crisis within liberal bourgeois culture. Can the ideal of an experimental society no longer hostage to any particular substantive vision of the good ever replace or replenish traditional sources of meaning and purpose which have decayed or been destroyed? So long as it remained a socially effective cultural bel ief system, the basis of a vital communal tradition, the Christian vision of universal human society and infinite personality could at least offer some support to interpretations which sought to overcome the contingencies of guilt, sickness and death. But we live in an age in which secular knowledge has become detached from traditional and religious world views. And because Unger and other legal modernists decline to counterbalance the painful and lonely contingencies of finite human existence with the hope of spiritual salvation held out by the Christian revelation, insisting that their moral vision must stand on its own philosophical merits, they, in effect, concede Habermas' point that "a theory that could interpret away the facticities of loneliness and guilt, sickness and death is, to be sure, not even conceivable."11 Everything about human life, as experienced in modernist consciousness, is conditional and contingent. Any given experience of value or identity is open to conflict, contestation and even extinction. All "the social worlds that exist and have existed and will ever exist are conditional. They can fall apart or be torn apart." For legal modernists, no less than for bourgeois culture as a whole, "Contingencies that are irremovably attached to die bodily and moral constitution of the individual can be raised to consciousness only as contingency. We must in priniciple live disconsolately with them. 73 Perhaps we need to ask again whether that disenchanted and disconsolate mood is, indeed, the only available rational response to the painfully contingent and finite dimension of our being. Is the only alternative to disenchantment Unger's surreptitious faith that the perfectionist impulse will come to fuel the life process of the species once that process has achieved liberation from the constraints of an assertedly "natural" necessity? Perhaps it is true that, in the absence of some such faith in the final reconciliation of 71. Lasch, op.tit.,pp. 272-273. 72. Habermas, op.tit.,p. 120. 73. Roberto Unger, Introduction to Politics. (Unpublished manuscript. Harvard Law School, 1981), p. 242; Habermas, op. til, p. 120. 42 ANDREW FRASER humanity and its God, we must, as individuals, remain disconsolate in the face of the unexpected, the unforeseen and the contingent. And yet we can also recall a time when at least some men possessed an apparently rational belief in their own capacity to impose a form and order upon a world otherwise governed by the vagaries of fortune. The creation of a public-political realm within which men could speak and act together in their collective capacity made possible that interplay between virtu and fortuna which "indicates a harmony between man and world." Within the classical republican tradition, virtu was conceived as the specifically political "response, summoned up by man, to the world, or rather to the constellation offortuna in which the world opens up, presents and offers itself to him, tohisw'rtM."74The great political act which gave birth to the American republic was one notable affirmation of the possibility that contingency could be mastered and overcome. The efforts of republican lawyers and judges to preserve the coherence and unity of that newly-created body politic throughout the nineteenth century represented yet another. Critical legal scholars have treated the history of that republican tradition as an attempt to freeze time itself. They, on the other hand, have consistently sought to escape the constraints of time altogether. In that respect they do little more than echo ante-bellum advocates of codification who attacked the common law principle of stare decisis as a form of idolatry. Like Unger, one such lawyer declared that once Americans recognized their law for what it was, "a human, not a preternatural institution . . . it will advance with a free and unimpeded step towards perfection." Time itself could be conquered as the "stubborn forms" of the law were "taught to bend to the convenience and exigencies of the people for whose use it subsists. It will be separated from the rubbish and decay of time, and stripped of the parasitical growths that darken and disfigure it."75 Unlike the republican legal tradition which sought to preserve the forms which virtu had imposed upon the matter of fortuna, the critical legal studies movement now seeks to open up the world once more to the free play of contingency. That project is seen, not as the triumph of corruption over virtue, but rather as a progressive victory over the dead hand of tradition. In that modernist view, tradition is conceived "as an indefinite series of repetitions of an action, which on each occasion is performed on the assumption that it has been performed before; its performance is authorized ... by the knowledge, or the assumption, of previous performance."76 But the greatest of the republican lawyers in ante-bellum America managed to transcend the terms of the sterile and ahistorical debate between those who sought to freeze time and those striving to escape its constraints altogether. They understood that the 74. Hannah Arendl, Between Past and Future (New York, 1961), pp. 137-141. 75. William Sampson, "An Anniversary Discourse," in Perry Miller, ed., The Legal Mind in America: From Independence to the Civil War (Ithaca, 1969), p. 123. Unger is at one with the logic of modern capitalism in seeking the "abolition of duration." See, David Gross, "Time, Space and Modern Culture," Telos no. 50 (Winter 1981-82), p. 75. 76. J.G.A. Pocock, Machiavellian Movement, pp. 161, 207-208; Id.; Politics, Language and Time: Essays on Political Thought and History (New York, 1971), p. 237. LEGAL AMNESIA 43 task of preserving the coherence and unity of the republican polity was one which required the application of a sensitive and prudential judgement to the inescapable and unpredictable contingencies of civil and political life. Neither the mechanical identification of tradition with mere prescription nor the invocation of univeisal principles of justice could possibly displace the role played by the faculty of judgement itself in the performance of that task. Judges such asjohn Marshall andjoseph Story recognized that both law and society, and more particularly the Novus Ordo Saedonim which emerged out of the American revolution, were products of human artifice wrought by men ol virtue and intelligence. The survival of the republic could not depend upon the naturally given dispositions of the American people. While the foundations of the republic might have been erected upon the ground o( natural reason, it was "built up and perfected by artificial doctrines adapted and moulded to the artificial structure ol society." Like all products of human artifice, the body politic and the laws which preserve and protect it are designed to outlive us all by providing us with a common world more durable and less subject to the play of painlul contingencies than our necessarily finite and precarious individual lives. The republican legal tradition in ante-bellum America derived its intellectual and moral force from a clear perception that societies "exist in time and conserve images of themselves as continuously so existing."77 So long as the citizens of the American republic could preserve an image of an unbroken continuity stretching back to the foundation of the republic, so long, in other words, as they were able to renew the sources ol the civic virtue which had made possible that founding act, the play of contingency could be mastered and overcome.78 Modernism begins, however, with the passionate embrace of indeterminancy, conceived as an emancipation from false necessity. Contingency no longer appears as a fact of life to be mastered and overcome. Rather, it represents the very essence of the life process. Moral discourse can no longer be solidly anchored by attaching it to the sort of authority which flows from a secure location in some part of a presumptively "natural" physical or social world. There is no such secure location. It is impossible to conceive any aspect of either inner or outer nature in terms of invariant or fixed essences. "Human nature," Unger asserts, "is no more rigidly defined than are the limits to the social worlds that people can imagine and construct." A sound theory of personality, according to Unger, must acknowledge "the indefinition of the person and of his core experiences." The identities of individuals are marked by "contested boundaries."7!) 77. Joseph Siory, "Inauguration Discourse," in Miller, op. cil.. pp. 183-184; Pocock, Politics, Ijinguage and Time, p. 233. 78. Faced will) the novel temptations and moral uncertainties of a rapidly developing market econonivnianv Americans living in the third decade of the 19th cent urv had alrcadvcomctolear that a material prosperity based on mobile lormsol property would inevitablyerodethai civic virtue necessary to link the present to the pristine foundations of the Old Republic. Much ol the rhetoric associated with thejacksonian persuasion sought to restore that image of continuity. See, Marvin Meyers, Thejacksonian Persuasion (New York, 1960) and Fred Soinkin, Unquiet Eagle: Memory and Desire in the Idea of American Freedom, INI 5-IN6O (Ithaca, 1067). 79. Unger, "Introduction," p. 285. 44 ANDREW FRASER In their insistence that there are no fixed, natural boundaries capable of immunizing any aspect of the personality against transformative pressure, modernist lawyers echo the advocates of the androgynous ideal discussed in a recent article by Jean Bethke Elshtain. Like Unger, "a// androgynists propound as an article of faith, an example of right reason, and an instance of scientific truth that human nature is more or less plastic." The ideal human being then is someone who has managed to transcend the limiting and contingent constraints imposed on personal identity by sex and gender differences.80 The human body, for androgynists and Unger alike, is an object bearing only a contingent relationship to our identity as a human personality. And Unger in particular takes no account of how our existence as corporeal and temporal beings "bears powerful imperatives for how we come to know." That omission is a significant one since it does not seem far-fetched to suppose "that our knowing is essentially tied to our experience of ourselves as bodies." If that is so, "the mind and its activities must be conceived in a manner that is "tinged with spatiality is inseparably bound up with the fact of inhabiting this body at this particular time, it would seem that a philosophy which insisted upon the pure indeterminancy of human social and personal identity could only have the effect of objectivating one's body, thereby making it impossible even to conceive genuinely human relations with it. One could avoid that outcome only by recognizing that "The starting point of each and every human being is his or her particular location in space and time; this is, inescapably, the body."81 The modernist notion of theindefiniiion of human personality also blocks the possibility of intuitive access to relations of solidarity within groups or between individuals. That outcome is certainly not intentional. On the contrary, Unger claims that the contemporary experience of "cultural revolution" is transforming our ideas about love and marriage in away that promises to lead to a significant deepening in our conception of community. Cultural revolutionary practice is an assertion of the transcendent character of the personal. The personal is transcendent because no particular social order can exhaust its store of possible and desirable meanings. By attacking the "naturalistic" principles which provide the underpinning for all fixed and hierarchical divisions of social roles, the modern cultural revolution has gone a long way towards overcoming the divided forms of subjectivity characteristic of the traditional patriarchal family. The practice of cultural revolution involves the purely negative process of attempting to emancipate people from the determ80. Jean Bethke Elshtain, "Against Androgyny," Telos, 47 (Spring 1981), p. 9. An explicit defense of the androgynous ideal has been offered by Frances Olsen. Like Clare Daltun (op. cit.) she seeks to ground critical legal though) in the romantic and irraiionalisi ideal of self-expression. Dalton believes that (he dichotomy between self and other is part of the mystifying logic of reifica(ion; Olsen is similarly convinced thai the growth of a deeper self-knowledge will reveal that gender differentiation, far from being immutable, "is contingem and subject lo human control." The last stage in the historical process of deepening self-knowledge would be "the reclamation of the whole self' made possible only by the transcendence of the male/female dichotomy. Frances E. Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," (1983) 96 Harvard Law Review 1497 at pp. 1570-71. 81. Elshtain, op. cit., pp. 15, 12. LEGAL AMNESIA 45 ining background influence of somefixeddivision of social roles. An attempt is made to factor our the power element which gives social roles their determinate form.82 The naive optimism of legal modernists concerning the capacity of "cultural revolutionary practice" to emancipate the transcendent individual from the false necessities imposed by established sexual and social hierarchies and divisions calls to mind the evangelical Christian celebration of that divine love which holds the atoms of creation together. Just as the itinerant evangelical preachers of eighteenth century New England sought to liberate men from the coercive bonds of a stale institutional religion, Unger hopes to disentrench the power order which has crystallized within the patriarchal household. In both the estabished church and the patriarchal household, artificial boundaries and inherited relationships block the natural operation of the "affections." Unger shares the evangelical faith that it is the direct emotional intuition of (divine) love that ultimately binds us together in (holy) communion. Any form of the family or of the church which sets out to subordinate the demands of the heart to the "rational" exigencies of a civil or secular union willfinditself not only beset by internal contradictions. It will also be diverted from the path of "True Virtue" by the idolatrous worship of an entrenched power order.83 But whatever modernists may claim, the collapse of the private sphere is the consequence, not of its own internal contradictions, but of the corrosive impact of a broad range of profesisonal, administrative and philanthropic interventions into the life of the family. Far from representing a semiautonomous power order beset by internal contradictions, the family might now be better conceived as afieldtraversed by a network of force relations and shaped by a series of strategic interventions emanating from domains external to it. The process that Unger heralds as cultural revolutionary practice cannot be divorced from the growing systemic need to map and nurture the sources of national strength. Once the apparatus of power took on the function of administering the life process of society, the conservation of children, among other things, became a major object of professional and administrative concern, with the result that the family soon began to lose its status as a semiautonomous domain. Unger's cultural revolution might be understood better as an aspect of "the transition from a government of families to a government through the family." The family no longer stands within a zone of exclusivity guaranteed by the traditional logic of property. Instead, it has become "a relay, an obligatory or voluntary support for social imperatives, conforming to a process that did not consist in abolishing the family register but in exacerbating its existing tendencies [or "internal contradictions"], in exploiting to the maximum its advantages or disadvantages as perceived by its own members, so as to link together normative requirements and economico-moral 82. See, generally, Olsen, op. cit. 83. Cf. Heimert, op. cit. 46 ANDREW FRASER behaviors."84 The greater the degree to which the family becomes the object, if not the product of the technologies and strategies of power, the less likely it seems that the experiences of marriage and family life hold out hope for intuitive access to relations of solidarity with other persons. The sphere of family and private life will no longer be regulated according to the principle of exclusivity. The right to exclude outsiders remains the ultimate guarantee of privacy. But critical jurisprudence seeks to dissolve the wall of privacy surrounding the family and to govern its internal life according to the contractual principle of choice and the political principle of equality. The critical legal studies movement would reduce the family to a dependent variable in the network of strategic alliances which constitute the map of power within the contemporary corporate welfare state. Like "the liberalization and valorization of the family that occurred at the end of the nineteenth century," Unger's projected transformation of personal relations should be understood "not as the triumph of modernity, the profound mutation of sensibilities," but rather as "the strategic result" of "philanthropic" interventions into the life of the family. Armed with Unger's system of destabilization rights, those interventions will aim to break up any "area of institutional life and social practice that run contrary to the scheme of the new-modeled constitution."85 There is something profoundly ambiguous and more than a little frightening in that vision of "a society cracked open to politics." Unger claims to see society as an essentially moral association of human personalities. He describes freedom, for example, as an overcoming of the apparent conflict between self-assertion and attachment to others. But does Unger's vision of our collective and individual progress toward the "ideal of the social," toward a higher level of collective and moral development, correspond to the real history of "die social"? More specifically, what does the real history of "the social" tell us about the fate of any real political ethic? It is clearfirstof all that "the social" is not society understood as the set of "material and moral conditions that characterize a form of consolidation," as Unger would have it. Instead, "It would appear to be rather the set of means which allow social life to escape material pressures and politico-moral uncertainties; the entire range of methods which make the members of a society relatively safe from the effects of economic fluctuations by providing a certain security."86 The work of critical legal scholars now provides a powerful illustration of the extent to which that representation of "the social" has become "the grid of intelligibility" through which alone we can hope to grasp the meaning of human experience. The "ideal of the social" has become "theyardstick by which political discourses will measure or oppose one another, but also the basis on which they will try to start afresh when its realization has effaced the charm of old promises. 84. Jacques Donzelot, The Policing of Families (New York, 1979), p. 92; see also Christopher Lasch, Haven in a Heartless World: The Family Besieged (New York, 1979). 85. Donzelot, op. at., p. 58; Unger, "Critical Legal Studies Movement," p. 612. 86. Unger, "Introduction," p. 67; Donzelot, op. tit., pp. xxvi. 87. Foucault, op. cit., p. 93; Donzelot, op. tit, p. xxvi. LEGAL AMNESIA 47 The vision of a society no longer hostage to itself is not far removed from the spirit of earlier celebrations of the power of positive thinking. The central task facing the contemporary corporate welfare state is the conquest of scarcity. It follows that the goal of political and social life within the modern nation-state is not freedom, but abundance. The vision of liberation shining in the eyes of Roberto Unger and his acolytes within the critical legal studies movement has even less to do with the foundation of political freedom. For them, the capacity to overcome the fundamental contradictions plaguing the legal order must be lodged, if it is to be found anywhere, in the inner structural dynamic propelling the social system into the future. To identify the goal of politics as "the making and unmaking of society" necessarily entails the repudiation of the republican claim that the power of the people must be grounded in some "stable worldly structure that houses, as it were, their combined power of action."88 In place of such structures, the critical legal studies movement offers "the hope of making something new of our experience." Freedom is to be grounded, not in the enduring structures of the body politic, but in the power to disrupt or transcend every imaginable form of social life. The transformative power of the imagination becomes manifest in a vision of psychic abundance: "Who knows what the people we might be tomorrow would imagine for their own tommorrows." Unfortunately, that hope of spiritual plenitude cannot easily be disentangled from the pervasive reality of a cretinized mass society within which "the wish for plenty" tends to appear, not as "the wish to have one's wishes fulfilled," but rather, as "the wish not to have to wish wishes of one's own at all."89 In that context, Unger's negative capability presents itself as an artificial device designed to breathe new life into an over-administered corporate welfare state no longer able to mold the social world in its own formally rational image. The alternative image of a society "cracked open to politics" would serve notjust the systemic goals of economic growth and social change. The hope clearly is that it might also generate a renewed sense of historic mission among all those legal professionals fated to become the cultural shock troops of the corporate welfare state. The Hope of the Future Critical jurisprudence calls into question the very possibility of a stable collective or personal identity. Given that view, it becomes practically impossible to ask the question: who are "we" and how are "we" to recognize and create a genuinely critical and emancipatory legal discourse? Certainly the mere fact that we are intellectuals or lawyers does not automatically predispose us towards emancipatory action — unless we choose to identify what it means to bean intellectual or lawyer with a pre-given political role. The critical legal studies movement approaches the question of political reform as if it were "logically prior to everything else." In doing so, it has succumbed to 88. Hannah Arendt, On Revolution (Harmondsworth, 1973), p. 175. 89. Dalton, o p . cit., pp. 241 -243; Donald Meyer, The Positive Thinkers: A Study of the American Quest forHealth, Wealth and Personal Power From Mary Baker Eddy to Norman Vincent Peale, (Garden Citv N Y 1966), p. 189. 48 ANDREWFRASER what Benjamin Ginzburg, writing for The New Republic in 1931, called "the anti-intellectualism of the American intellectual, who is overawed by the practial sweep of American life." In its efforts to be ultra-realistic, modernist lawyers have thrown up a subjectivisitic interpretation of reality which transforms political action "into a sort of personal salvation." For Unger, that hope of salvation has been cruelly denied by the perverse indifference of a legal academy, which, "like a priesthood that had lost their faith and kept their jobs," still stands "in tedious embarassment before cold altars."90 But the critical legal studies movement errs profoundly when it seeks salvation through political solutions to problems that are not political but cultural. If the principle of subjective value implies that we have lost our sense of values, we cannot recover those lost meanings "by betting on some plan of economic or political action; it is rather by clarifying our sense of values that we ensure intelligent political action." To stake "individual freedom entirely on a realization of political reform" can lead only to a kind of political messianism "which stakes everythingon the hope of the future." But, as Ginzburg pointed out overfiftyyears ago, it is possible to begin instead "with the affirmation of moral and intellectual freedom in the present" thereby making the goal of politics "the extension of the range of freedom in the future."91 Such an experience of moral and intellectual freedom can, in the nature of things, only be realized within the framework of institutions rooted in the here and now. For Duncan Kennedy and Roberto Unger, however, any effort to conceive existing institutions as associations of persons formed with a view to some good purpose represents little more than a transparent ploy designed to immunize such institutions against transformative conflict. Precisely because no institution on the model of an Aristotelian polity could "emerge from present reality as the outcome of any plausible sequence of political transformation and conceptual adjustments" the very image of such an "idealized communal republic" is said to confirm "the power of the established order in the very act of pretending to deny it."92 The hope of freedom must therefore be staked on a program of political action. A striking example of that antiinstitutional tendency to stake everything on the hope of the future can be found in Duncan Kennedy's "Utopian Proposal" for the reform of the Harvard Law School curriculum. Kennedy's recommendations fall under two headings: one set of proposals is directed at the creation of a new model curriculum; the other set seeks to establish the law school as a"counterhegemonic enclave." Both branches of the proposal reflect both the sense of impotence in the face of the practical sweep of American life and the ingrained anti-intellectualism of the American Left intellectual. Kennedy never questions the prevailing assumption that the major objective of the law school curriculum should be to equip the law student with the sort of skills and clinical experience necessary to the practice of law. Nor does he find it possible to 90. Lasch, New Radicalism, pp. 292-295; Unger, "Critical Legal Studies Movement," p. 675. 91. Lasch, New Radicalism, pp. 292-295. 92. Unger, "Critical Legal Studies Movement," p. 602. LEGAL AMNESIA 49 conceive the objects of practical training apart from a program of political action. Alongside an allegedly "practical" training in doctrinal "manipulation" and clinical experience his new model curriculum would offer an interdisciplinary course "formally distinguished" into left and right political streams. Kennedy simply takes it for granted that the materials of history, jurisprudence, economics, sociology and so on, must be approached with an already developed political perspective in mind.93 The possibility that legal scholarship might be conceived as an end in itself altogether apart from its relevance to a program of political action or the demands of legal practice is not even raised, much less seriously considered. To conceive legal scholarship as a legitimate end in itself would be to open up the possibility that Harvard Law School, like any other academic community, might constitute itself in such away as to serve those scholarly values to the exclusion of other, more political or ostensibly practical, concerns. Professional law schools in America have rarely represented anything that would be recognizable as a community of scholars. One may be sure that they never will, unless critical legal scholars cease to imagine that their role is to train radical lawyers and seek instead to constitute an autonomous tradition of legal scholarship. The cultivation of the virtues appropriate to legal scholarship as a worthwhile activity in its own right will continue to be neglected so long as conservative and radical law teachers alike regard themselves as bound to satisfy the manpower requirements of their respective factional groupings within the legal profession. That subordination of scholarly values to the supposedly more practical task of preparing radical lawyers is all the more surprising given the fairly obvious fact that, whatever else law schools might be able to do, they certainly cannot teach people how to practice law, much less give them a concrete appreciation of what it means to be a "good lawyer." That is a function which, by its very nature, should become the corporate responsibility of the legal profession itself. Critical legal scholars should insist that the legal profession assume that responsibility, thereby freeing the law schools to pursue the goods internal to the practice of scholarship. But to conceive the law school as another republican association of persons formed with a view to some particular good purpose is to locate the possibility of freedom in the here and now. That vision runs head-on into Kennedy's political messianism which leads him to judge the law school solely as a source of "illegitimate hierarchy and alienation." The law school as a "counterhegemonic enclave" seeks to detach authority — including moral and intellectual authority — from natural persons. Academic talent or a committment to the life of scholarship would therefore have to be replaced as legitimate criteria for admission to the academic community of the law school. Instead, "There should be a test designed to establish minimal skills for legal practice and then a lottery for admission to the school; there should be quotas 93. Duncan Kennedy, "Legal Education and the Reproduction of Hierarchy: A Polemic Against the System." (Unpublished paper, 1981), pp. 82 fT. Portions of this paper have been published as an article, "Legal Education as Training for Hierarchy," in Kairys, op. at. 50 ANDREW FRASER within the lottery for women, minorities and working class students." In other words, the admission practices of the law school should be tailored so as to serve the political "goal of modifying the social composition of the Bar."94 Clearly a body of students and faculty selected through a system of lotteries and quotas could only communicate with each other in the disembodied and de-contextualized language of crititical speech (if, indeed, they had anything at all to say to each other). The critical legal studies movement owes its vision of emancipation to the emergence of a culture of critical speech which de-authorizes every traditional form of social and political authority. Unger understands that development as a process of "cumulative insight," as a consequence of which "the formative order of social life" has been "deprived of some of its halo of naturalness and necessity."95 But the disintegration of those traditional forms of authority does not automatically and necessarily lead to the experience of human emancipation. Indeed, as Adorno and Horkheimer have reminded us, the dialectic of enlightenment which generates the ideal of the self-reflexive culture of critical discourse has remained fundamentally "tied to domination, as both its reflection and its tool." The "self-dominant intellect. .. separates from sensuous experience" only "in order to subjugate it."96 If that is so, one might continue to view the emergence of a fully reflexive intelligentsia, "emancipated" from the constraints imposed by fixed social roles as an expression of the one-dimensional logic of an advanced capitalist society which encourages "an immediate identification of the individual with his society and through it, with the society as a whole." Once domination takes the form of a sophisticated, scientific system of social administration the function of reason, according to Marcuse, is to encourage "submission to the facts of life, and to the dynamic capability of producing more and bigger facts of the same sort of life. The efficiency of the system blunts the individual's recognition that it contains no facts which do not communicate the represssive power of the whole. If the individuals find themselves in the things which shape their life, they do so, not by giving, but by accepting the law of things — not the law of physics but the of their society."97 Conclusion The critical legal studies movement regards the law as a transcendent body ofsocial norms. It is through the invocation and renewed articulation of those norms in the light of personal needs and experience that the process of individuation will (and should) take place, according to the modernist credo. The ideal of law, conceived as a fruitful tension between the universal and particular, the altruistic and the individualistic, becomes the primary locus of 94. Ibid. 95. Unger, "Critical Legal Studies Movement," p. 582. 96. Max Horkheimer and Theodor W. Adorno, Dialectic of Enlightenment (tr. John dimming) (London, 1973), pp. 36-37. 97. Herbert Marcuse, One Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston, 1966), pp. 10-11. LEGAL AMNESIA W human identity. A discourse which conceives the law as a transcendent body of social norms must abandon the ancient conception of law as a means of marking the boundary between the private and public realms. Theindividuation of the human subject within the framework of a body ol transcendent norms reflecting the socializing logic ol capital offers no real hope of meeting the crisis of meaning and purpose developing within our civilization. A recovery of meaning and purpose is possible for us only through a form of legal discourse which recognizes that a clear distinction between public and private is essential to a freely developing democratic public lift-. How can we begin to reconstitute autonomous spheres of private and public life in the face of a capitalist economy and state which have lused to locale the source of all normativity in the needs of an expanding and apparently limitless social body:' The first step towards such a positive program of institutional reconstruction would be to rescue the republican tradition in American legal thought from the historical limbo to which it has been relegated by the partisans of legal and cultural modernism. Perhaps by so doing we may find the means 10 resist the Iurther erosion ol both ihe private-familial and the public-political spheres in the name of social efficiency and progress. A rich, various and moral human identity demands both "the continuing presence of specific beloved others" in the private-familial sphere and a public sphere in which we can act, as citizens, in common with others to articulate and realize a set of shared values. The discourses and forms of speech appropriate to familial and political lile, respectively, can and should be distinguished from a legal discourse concerned to preserve the integrity and autonomy ol both private and public experience. Asjean Bethke Elsluain has observed: "To affirm a vision of the private-familial [or oft he public] sphere as having its own dignity and purpose is to insist that particular experiences and spheres of social relations exude their own values and purposes, and have ends not attainable by, or within, other spheres. To assert the continual necessity of such relations and a particular notion of their reconstructed vitality is to recognize that we are all impoverished il all of lile falls under a single set of terms. It is to adopt a perverse version of the Platonic expistemology that calls for other ways of seeing to be suppressed, literally exiled, or taken as inferior when compared with a supreme, powerful way ol seeing beyond and above everyday human existence."'18 The all-pervasive logic of socialized capital has dissolved the boundary between private and public spheres and left in their place a disembodied culture of critical discourse which effectively transvalues fundamental questions of meaning, purpose and identity into problems of social order and social development. The real problem facing us is one of restoring the precarious balance between public and private experience without conditioning participation in public life and identifying autonomous individuality with restrictive and exclusive forms of property ownership. That problem persists 98. Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought, (Princeton, 1981), pp. 329, 334-335. 52 ANDREW FRASER precisely because our moral identity is rooted in pattern of practical intersubjectivity which cannot be reduced 10 the autonomous and instrumental logic of a system of socialized value production without threatening the very foundation of that identity. It may be said, therefore, that the hope of emancipation lies in our willingness to confront anew the problem of regenerating stable, well-ordered and virtuous republican polities within the corrupt and decaying body of Anglo-American civilization. It is not inconceivable that the vision of a regenerated republican polity may yet turn out to be a more "realistic" solution to the "fundamental contradictions" of our social being than a form of critical legal discourse that stands so much in fear of any stable or enduring source of authority that it abandons altogether the hope of achieving real emancipation in the here and now. If so, radical lawyers and Left intellectuals may find that they have much to learn from those who once championed a conservative republican ethos grounded in the "traditional logic of property" against a socially corrosive and spiritually empty process of capitalist rationalization. A genuine legal realism need not necessarily involve an abject capitulation to the disembodied, de-contextualized, and depersonalized logic of total administration. The lottery is a poor substitute for the polis. NEW GERMAN CRITIQUE an interdisciplinary journal of german studies Our current issue (no. 31, Winter 1984), includes: WEST GERMAN CULTURE AND POLITICS Michael Schneider, Fathers and Sons Retrospectively: The Damaged Relationship between Two Generations Sigrid Weigel, Contemporary German Women's Literature Miriam Hansen, Visual Pleasure, Fetishism and the Problem of Feminine/Feminist Discourse Eric Rentschler, Kluge, Film History, and Eigensinn Heinz D. Osterle, Interview with Gunter Grass George Mosse, Bookbwning and the Betrayal of German Intellectuals Martin Jay, Adorno in America DEBATES Jessica Benjamin and Anson Rabinbach, Germans, Leftists, Jews Marion Kaplan, To Tolerate Is to Insult Jack Zipes, The Return of the Repressed New German Critique is the first American journal to develop a comprehensive discus sion of German politics, social theory, art, and literature on an international level. New Ctrman Critiqut German Department Box 413 The University of Wisconsin-Milwaukee Milwaukee, Wisconsin 5S201