Introduction:

Can we begin to speak of a tradition of Critical Legal

Studies? A radical intellectual and political tendency becomes a
movement or a school of thought when it can claim history and a
community or a tradition and an identity. For critical legal studies, this
history is doubly problematic. One problem is that American CLS, for
many acme of critical thought, represents only a starting point. We
should not make mistake of limiting the reach of CLS by constantly
referring it to the “American” moment in legal critique. But there is a
more profound difficulty. History is what CLS has been rebelling against.
Is it correct to impose a tradition on a body of thought that has set its
face against tradition? Can these tensions be negotiated? Can the
authenticity of CLS be found in a realization of its own profoundly
historical and iterative nature?
We will suggest that the defining features of CLS as a critical form of
thought is an anxiety towards its own constitution. In American CLS, the
repeated announcements of its own death have marked this unique
anxiety. Most other jurisprudential schools have a more or less explicit
concern with their continuation, with the updating of their foundational
truths of new times. We will relate this critical anxiety to a broader
concern. The movement of CLS away from its beginnings is also a
transformation of CLS from a restricted to a general jurisprudence. We
will discuss it from the concerns of the American founding fathers, and
feminism to British and European CLS and into the most recent
manifestation of Australian Critical Legal Studies or Oz Crit and South
African CLS. While grappling with their own authenticity, they display a
radical openness that feeds on law’s lack of completion, and welcome a
justice still to come. Here is more of a genealogy than a history. It reads
the past from the concerns and crises of the present. We are concerned
with the beginnings, theories and lines of flight that have led to the
present. What contingencies, what destinies and bad luck have
combines to bring us to where we are?

Beginnings:
CLS did not leap fully formed into the world. Its
beginnings can be found in the radicalization and redefinition of a prior
critical tradition. The European trajectory traces the beginnings of CLS
to Marxist theories of law. The American return to the realist adventure
in legal theory and see it as a break with the past, and opening of new
paths.

In America:
The work of Duncan Kennedy offers a useful insight into
the strengths and weaknesses of American CLS. How does he resolve
the tension between tradition and critique? We will begin with the
celebrated essay, The Structure of Blackstone’s commentaries. The
essay is as much as a statement of a new kind of thinking as it is a
commentary on a commentary. Blackstone was important for American
lawyers in the young republic. He provided a model for the
dissemination of professional knowledge and a foundational fiction for
American law. Blackstone’s presentation of the common law as a
challenge to arbitrary royal power gave an important reference point
for the slaw obsessed American polity. His legal and political theory
offers a defense of liberalism. The commentaries take into account the
perennial problem of the conflict of rights and proposes a process of
legal argument which unlike the work of Blackstone’s contemporaries,
had a pronounced role for the judiciary.
Kennedy reads Blackstone differently. This alternative approach is
prompted by a set of political questions; what social structures and
political ideologies underlie the text of the Commentaries?
This attitude informs the celebrated idea of the “fundamental
contradiction”. The contradiction expresses the troubled nature of
social life. The dominant form of liberal legal scholarship can be
approached from the perspective of the fundamental contradiction.
Legal scholarship has been marked by debates over the correct
classification of legal phenomena. The scholarship was a process of
gradual clarification and refutation of error. This slow, incremental
sifting would one day arrive at the best possible realization of the
shape, the form and the function of the law. The contradiction reflects
deep-seated conflicts in the organization of social life that are reflected
in legal scholarship. Locked in a struggle that can’t be solved, both
position circle around the same trauma.
The best way of describing Kennedy’s approach to this practical and
theoretical question is to understand this phase of CLS as a “critical
phenomenology”. A strategy of American legal scholarship is to place
the author in the position of a Supreme Court justice who examines a
particular doctrine and from his appellate position, suggests ways of
straightening out the law. Kennedy in his freedom and constraint in
adjudication adopts this strategy. He is an interventionist judge who
has to decide a politically hard case.
The hypothetical case involves a bus company that has applied to a
federal court to obtain an injunction against striking drivers who have
staged a sit in protesting against the company’s employment of
non-unionized labor. Can Kennedy the judge refuse the injunction? His
personal politics and his ethical position make him sympathetic to the
union members. He is aware, though, that the law is bent against
unions in a case such as this. The law appears as a kind of substance
that must be worked and shaped in such a way that the workers case
be successful.
The judge faces a conflict between his internal sense of the case, and
the way it will be perceived by others. The institutional position of the
judge is one element in this process. Refusing the injunction might be
might end up being counter-productive. But there is another possibility.
The legal issue itself could be framed in different terms. If the legal
problem is whether the workers can legitimately obstruct the means of
production, then it would be hard to resist the injunction.
But the case could be recast as a ‘first amendment’ prior restraint
problem. Granting the injunction would be an illegitimate interference
with the rights of free speech of those protesting. Effectively, this
would show that the operation of the industry should be limited in the
interests of a more compelling constitutional guarantee. Recasting the
issue in this light shows a further dialectical movement task becomes
different. The judge now has to show that a sit-in can be considered a
freedom of speech issue. The judge’s job is to apply the rules without
prejudice. The point, of course, is to show that this is not a realistic
model. Although interpretation is constrained in some ways, it is also
open to the personal desires of the judge. More precisely, this shows
the ‘grey area’ of rules can be manipulated and influence the way in
which the dispute is perceived, and hence resolved.
But Kennedy warns us not to underestimate the anxious weight of the
tradition. Accepting the court and judge centered work of American
academics, he hails the generations of judges who have contributed to
the ‘collective wisdom’ of the common law. Indeed, the influence of the
judges is so pervasive that their voice appears as your own. In this
sense, a problem that was initially defined as a contrast between
internal and external perspective must be redefined. The tradition is
already present to the extent that you can talk at all. If the individual
can make these feelings present to consciousness, she may be able to
distance herself from the tradition – but this is not a reliable strategy.
Hope lies in the fact that the tradition is itself a multiplicity of voice,
some of which have been silenced, suppressed, forgotten.
Kennedy’s work thus represents something of a continuation of the
realist concern with the tradition and its reinvention.

Feminism and Authenticity in America:

Feminism as
critical legal thought redoubles the dilemma of the critic, we have seen
how critique has to define itself against the tradition. But the feminist
critic must define herself against both the established tradition, and a
critical tradition is as inhospitable as the mainstream. Feminist critical
legal thought this sheds a particularly acute light on the torn being
critical legal thinker. It is as feminism poses the question that haunt this
form of thought: Who am I? Where do I belong?
We can understand this dilemma if we consider the cortex created by
the critique of essentialist feminism by a more problematic and
troubled thinking of gender. Essentialist feminism was to present the
central social and intellectual conflict as between an authentic
oppositional community and a corrupt mainstream: a female ‘us’ and a
male ‘them’. Law’s objectivity, its norms and categories, were shown to
be male standards which effectively enshrine female oppression and
render it invisible because it does not conform with the male
construction of social reality. At the center of this web of oppression,
the state ensures that ‘the rule of law-neutral, abstract, elevated,
pervasive, institutionalizes the power of men over women’.
We will concentrate on the work of Drucilla Cornell, who embodies the
dilemmas of this approach. Cornell’s theory of the law and state is an
explicit critique of gender essentialism and in particular of the work of
Catherine MacKinnon. Cornell sees a danger in returning to fixed
definitions of female nature, which define women solely as mothers or
carers. This is not necessarily negative, ‘if both are understood figure
the desire of intimacy’, and public life is defined differently. Indeed, at
the heart of Cornell’s project is an affirmation of ‘equivalent rights’
which would not assimilate women to men’s standards but would
effectively enfranchise female realities. Rights would cover issues such
as virginity, motherhood, and various strictures that prevent
penalization of celibacy. These rights would move away from merely
attaching criminal sanctions to crimes against women, and would
resemble the great enlightenment made for the rights of man. Cornell
is re-imagining the notion of community. If there is a starting point, it
concerns what is shared, the intimate space as the invitation to live
differently.
This, in turn, leads to a rethinking of the terms of CLS. Cornell reworks
the celebrated critical legal theory of indeterminacy. Her notion of
re-collective imagination is rooted in the refusal of the ideal schema or
the totalizing account. In its original development, the thesis stated
that legal norms and rules are without foundation and their linguistic
openness and inescapable conflict means that no universally acceptable
‘right answers’ exist.
The argument is not that claims to identity or to the foundation of
knowledge are illusory. Rather, the thesis must be re-formulated to
argue that the questions one can ask of an institution do not emerge
from a transcendental or external viewpoint but come from within our
own context.
Cornell thus returns to the question of an unrefined and authentic ‘life’
re-articulating the existential thematic that runs through critical legal
studies. CLS is re-figured and forced to start again with a new agenda
for critical thought. At the same time, there is an anxiety of belonging
that expresses itself through a critique of the mainstream, and urges
the creation of a new intellectual community. This body of ideas would
be both a continuation of, and a break with, CLS. The phenomenology
of judgement that dominated the first wave of CLS becomes
re-configured around a much broader economy and a more plural
encapsulation of the critical task, which now looks towards the
gendered body. The location of bodies in their personal and impersonal
histories comes to the fore and links critical thought with
psychoanalysis, aesthetics and queer theory.

Brit crit:
The diverse forms of British critical scholarship show no
interest in returning to the gamesmanship of ‘names’ or to many of the
positions that define American CLS. Brit crit can be read as a
continuation of a certain disturbance within jurisprudence and a
concern with the pervasive anxiety of influence.
The differences between American CLS and the British CLC are quite
pronounced, although not always acknowledged. CLS was a political
movement with little politics. CLC, on the other hand, is an intellectual
movement with lots of politics. The annual CLC started in 1984 and has
taken place without interruption ever since.
Over the years, these conferences introduced themes, school of
thought and movements unknown or dismissed by legal scholarship.
Western Marxism, postmodernism and deconstruction were the main
theoretical influences of the early conferences but soon the new
radicalism of race, gender, queer and postcolonial theory were
introduced to the legal academy through CLC. Indeed these
conferences were only the academic venues in which such themes
were discussed for so many years before they became respectable and
entered, albeit marginally, mainstream academia. Twenty years after
the first CLC conference, radical theory has slowly but steadily seeped
down to all the levels of legal scholarship and has led to a renaissance
in legal study. Indeed whatever their shortcomings and problems, Brit
Crits have reintroduced legal scholarship where it always belonged, at
the heart of the academy.
What are the peculiar anxieties of Brit Crits? From the beginning, CLC
recognized its roots in a feeling of ‘dissatisfaction’ with many injustices
perpetrated by law, and with the orthodox legal tradition that either
explained away or ignored law’s failures. This explicit combination of
political and theoretical agendas meant that British CLC never had the
coherence of American CLS. An accurate description of the diversity of
CLC stated that “the movement consists of plurality of approaches and
strategies to get at the power in the law”.
The political direction of CLC has led to a question of priorities. Should
critique engage with particular areas of law and legal issues or should it
attempt to produce a general theory? Alan Thomson has drawn a
pertinent distinction between the ‘trashing’ and ‘structuralist’ aspects
of CLC. Whereas the former is content to show the inconsistencies and
contradictions in liberal legal theory, the latter seeks to identify the
‘deep structures of power’, creating links with wider social theory and
developing its own language. This is another expression of the divide
between and intellectual movement that addresses exclusively
professional legal concerns (restricted jurisprudence) and a political
movement that operates in the intellectual interstices of institutional
practices including law (general jurisprudence).
To some extent, this tension was resolved by a Marxism that could
provide a link between specific struggles and interventions and a toal
theory of class power. Marxism provided a palliative to Brit Crit’s
anxiety, offering a central, unifying insight. It promised an account of
the fragmentation of society into ‘its economic and juridical forms of
appearance’ by reference to ‘definite social relations of productions’.
However, CLC’s anxiety was not ultimately salved by Marxism. Indeed, a
general mistrust of the models of classical social and critical thought
came to mark critical legal writing. Feminism was a major force in the
development of new forms of critique. It tended towards a reluctance
to employ meta-theories, preferring to use the term ‘patriarchy’
descriptively rather than as indicator of a fixed entity or indeed, to
concern itself with particular constructions of femininity. Coupled with
psychoanalysis, work began to on the role of language in constructing
both subjects and social spaces. An analysis in terms of class was seen
to lack precision, and could not map the complex conjugations between
linguistic meaning and power relations.
With the advent of postmodernism, this type of critique reached its
apotheosis. The anxiety of critique renewed itself in a desire to start
again – to re-think the terms of critique – to reinvent around a ‘new’
problematic. Postmodernism in critical legal studies represents a
return to the continental tradition.
Perhaps this manifests, in a different way, a critical anxiety: an
awareness that legal philosophy has not been rigorous enough. One of
the great announcements that initiated the postmodern project was
the announcement of the death of a kind of jurisprudence: there was
no longer need to answer the great question ‘what is law?’ Not only
had the traditional debate stagnated into a ‘jaded pedagogy of theory’
or become bogged down into a kind of armed peace between various
warring jurisprudential factions, but, and more importantly, these great
questions represented the end point of a particular mode of enquiry.
The most pressing concern was now the issue of how law is lived in
particular situations, and the focus for critical thinking became the
troubled connections between the lived world and the forms of the
law.
Study shifts from classical analytic scrutiny of the logic of legal
structures – or the abstract categories of legal reasoning – to law’s
involvement with sexed and gendered bodies; to people of race – with
memories and histories different from those licensed by the doctrines
of case law and conventional legal philosophy. The political demand is
to return to the ‘truths’ of lived experience, to the emotions and senses
as they are taken up and are disciplined by law. Responding to this
demand, critical legal scholarship has increasingly looked to a much
broader sense of how the subject is constituted as a product of power.
Power is seen as ‘relational’ and exercised in a diversity of social,
economic and sexual relationships. This approach moves away from the
Marxist location of power in class. The various discourses that create
knowledge of the social world effectively organize, define and deploy
power.
Postmodern feminism and queer theory intensified this analysis,
privileging the body and discourses of sexuality as key area where
power defines people as objects of knowledge to be studies, classifies
and disciplined, for feminists, patriarchy is the principal ‘organizing
framework’ for queer theorists, the ‘genital order’ of heterosexuality.
Integral to both these approaches is the argument that power can’t
simply be escaped or opposed. It is impossible to find the ‘outside’ of
power because it inheres in every form of knowledge. Contestations of
power are, however, possible. Every application of power invites
subversions and oppositions. From this perspective, any mode of
analysis which returns to sovereignty and a concept of power that
‘belongs’ to some person and institution, or is codified and controlled
by constitutional arrangements, misses both the sites where power is
exercised in everyday life and the sites for its subversion.
The end of jurisprudence means that we are in the position of starting
again; the tradition is alive with possibilities; it can no longer be a
question of carrying forwards the old certainties, but of reading anew
and reading differently: from the book text. We have already
encountered this kind of claim in the American work. Its construction,
largely through existentialist thought, however, obscures its own
thinking of its task, and of its wider relationship to the jurisprudential
and philosophical traditions.
Two strategies can be seen as running through the postmodern
position. A return to history and a demand for a revived ethics. The
historical turn places emphasis on the history of English law but not as
the parochial study of an ‘insulant jurisdiction’. It is a profoundly
European philosophy that allows the examination of the condition of
England. If anything the turn to English history is also a turn to the
world. The demand for ethics rises from the melancholy observation
that justice has miscarried the common law. But this can’t be the ethics
of neo-Kantian philosophies of right or of utilitarian policy-makers. The
exhaustion of the moral resources of modernity, acutely witnessed in
law, creates the most pressing intellectual and political obligation: to
imagine a new type of natural law for which justice is both a part and
always still to come. Uniting both the historical and ethical approaches
is an orientation towards the close reading of legal texts and legal
history. This reading traces the omissions, repressions and distortions,
the signs of power and the symptoms of the traumas created by the
institution. Working between the texts themselves, and the effects of
these texts in the ‘real world’, critical theory explores the textual and
institutional organization of the law.
Arguably, the anxieties of Brit Crit towards its constitution were
approached through the return to history; or, rather an attempt to
reclaim history from a critical perspective. In this sense, postmodernism
is ironically marked by a return to the past as a way of creating a place
for itself. The present may be determined by the past, but present
structures, institutions and ideologies can’t claim any greater legitimacy
from this fact. Of central importance are the excluded, whose trace
remains in the archives and the records and can be picked up today. To
understand possibilities that were not realized, potentialities that did
not become actual, one has to return.
Goodrich’s reading of Abraham Fraunce, conjures up the possibility of
returning to an approach rejected from the syllabus of the inn of Court.
Its institutional location makes it a critical resource within the common
law. Fraunce’s radical Aristotelianism sought to return the law to its
‘customary roots’ in the face of a forgetting by lawyers who had
severed its connection with any sense of its history, of law’s time and
place. This localism was not an isolated nationalism, but an attempt to
re-situate the common law within the ‘common law of Europe’, a call
for the study of both English writers and those major Europeans figures
such as Ramus, Hotman, Cujas and Bude.
Fraunce’s rediscovery can be linked to another aspect of common law.
Goodrich revels in the double meaning of the ‘post’: in chronological
terms, it announces the sense of the end time, of being ‘late’ in relation
to modernism. But the ‘post’ also carries the sense of the delivery of
messages, of sending and receiving epistles and texts. These two
meanings come together when one considers the postal rule in the
contract law: an offer is binding once it has entered the post. Although
a product of classical nineteenth century contract doctrine, the rule
offers a paradigmatic instance of law’s operation. Law’s subjects are
bound by texts that they haven’t read. More generally, the institution
pre-exists the subject, who can only enter into the discourses that it
allows by accepting its priority. The individual is always late when it
comes to the law. Taking the place of any direct communication
between parties, the postal rule suggest that the law is the necessary
intermediary. Its language is the ‘relay’ that allows messages to
circulate and be understood.
If we can only speak because the law allows us to do so, does this not
suggest the triumph of tradition over any possibility of critique? This
would be a misreading of the possibilities that history offers. We can
imagine the tradition as a river in which the debris of the past are borne
along by different currents; or we can think of the past as a
conversation in which many voices are drowned out. But the sensitive
ear can choose to listen to different tones, murmurings and
whisperings.
History as the predetermined working out of a pattern, or as something
to which we have access through a central narrative, must be rejected.
We are forced to create our own histories out of the materials that
become available, always with an eye and an ear to the fact that what
appears to be the dominant or licensed view is only so because other
voices have been erased; but nothing is completely forgotten. Only
from this perspective can our historical sense be actively engaged. We
are always grappling with the dilemma, with a specific task that appears
historically located. But we can’t rely on the principles, the values, the
essences that characterize historicism and reduce the different to the
same. Otherwise, we risk remaining within the interpretations
authorized by the tradition and resolving every conflict according to the
terms that authority allows. The encounter with the strange should be
preserved. The forgotten and the repressed are the sources of
authentic thought, and the unhomeliness of home.
These currents of scholarship are marked by the tensions that we have
been describing above. As has been pointed out, the question of the
possibility of a CLS is a question of the institutions in which it takes
place, the lines of filiation and alliance between scholars. Brit Crit raises
the question of the possibility of authentic thought and action, of the
moment when the tradition is defied in the name of the present – in
the name of the personal. There is a risk that this thematic could turn
into a restricted mode of examination; there is always the problem that
the search for what is personally authentic has the effect of denying
other equally compelling values – particularly those of community and
belongings – and of becoming solipsistics. In their ways, these modes of
scholarship open up the question of the legal tradition itself. To what
extent can it be read as offering as offering alternative resources, as
inviting its own re-invention?
This latest manifestation of Brit Crit repeats the critical question: how
can the law be opened to those currents of thought that it resists; or,
how can the law be made different from its present form? At the same
time there is a sense of the difficulty of making the different tendencies
of thought cohere, of finding any sense of a meaningful shared identity.
However, perhaps it is not a question of leaving behind the anguish of
thought; if anything, it is about intensifying it still further. One can hope
to understand the nature of the tradition – of transmission and
reception – and move towards a more informed sense of what this can
offer.