NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Joshua Kleinfeld, Professor of Law at Northwestern Pritzker School of Law. Professor Kleinfeld teaches and writes in legal and political philosophy; legislations and statutory interpretation; and criminal law and procedure. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What is Critical Legal Studies? When did it become popular? What are its main tenets? Critical legal studies is the movement in law that emerges from the scholarly and political concern with issues of race and gender and sexuality, and to some extent class, that emerged from the 1960s and 1970s and continues today. In a way, it's a movement that's familiar to all of us. It's this part of the left. It's a self-consciously leftist movement, a proudly leftist movement, that is concerned with fighting for the rights and interest of the people they conceive to be at the bottom of society, the people who are either poor or are minorities of various stripes, or are women. At that level of generality, we're all familiar with critical legal study. Of course, it's the legal manifestation of that particular concern, so it's the people who are in, who are lawyers or judges, or above all, law professors, who are sort of challenging traditional conceptions of law and politics on the basis of these programmatic concerns with identity. At that level of generality, we're all familiar intuitively with critical legal studies. But what I think is interesting is to try to delve into the philosophers of the movement, to identify the core ideas, the building block ideas that make sense of this. And the two I've always drawn the most inspiration from, and found the most fascinating, are Catharine MacKinnon and Roberto Unger. In Unger's work, he talks about legal formalism, legal objectivism, and social construction. So what are those ideas? Well, legal formalism, he does not use the way the realists used the term legal formalism. For them, legal formalism was the attempt to make law a deductive science, where there is doctrine, which gives you premises, and you reason from it, and if you reason correctly, like geometry, you come to determinate certain legal outcomes. And the realists emphasize the policy character of legal judgment. Essentially, Unger and others on the CLS movement radicalized that sense of legal indeterminacy. They argue that law is not just, legal doctrine is not just moderately indeterminate, it is illusion. It is a veil pulled over the realities of power. Programmatically, the apparently objective claims of legal doctrine do not actually resolve legal disputes or determine the behavior of courts. What does is, preferences that are based on existing power structures. So you could see that as a radicalization of the realist movement, where the realist movement looks at law as modestly indeterminate, maybe considerably indeterminate, but not as nothing, not as pure illusion. The Critical Legal Studies folks, the Crits, as they're called, see it as totally indeterminate, as total illusion, and this can be very subversive in the context of law school. Think about what we do when a student comes to law school. You take a class. The class is called contracts. You learn a bunch of doctrine. The doctrine will be on the bar exam. Now, if you're in a more realist classroom, you'll have a lot of policy discussions alongside the doctrinal discussion. If you're in a less realist discussion, maybe the volume knob on the policy will get turned down a little bit. But if you're in a Crit classroom, all of that doctrine is sort of illusory. What we're teaching you is a set of rationales that power uses to disguise itself. And underneath those doctrinal claims or purportedly, a superficially rational argument on the surface of the opinions, is something much uglier and darker about the realities of power in society. So you might still learn some doctrine in that Crit classroom, because you need to be equipped to wield the tools of power effectively, if you're going to fight them. But there's an unreality to the whole discourse. There's an illusory character to the whole discourse. The next building block is, Unger calls his target here objectivism. And the way I read him on objectivism is: What he's objecting to is the notion that the legal order that we have constructed is generally rational and entitled to a measure of sort of defeasible respect. That is, it's generally rational, but it has its holes and its problems and needs to be sort of corrected along the edges to maximize its... the degree to which it's doing justice or increasing welfare in the world. That view is sort of the realist view. I mean, the realists are not generally, certainly the New Deal realists, were not radical revolutionaries. They were technocratic policy wonks, who wanted to tinker with the system, with the tort system, to make it more efficient, to tinker with the regulation of medicine, let's say, to make it more safe and efficacious. But they were not trying to overthrow the system. They didn't think it was corrupt from its roots. But the Crit perspective, the Crit philosophical perspective, really does see it as corrupt at its roots. And it's corrupt for a very specific reason that I think MacKinnon brings to light more vividly than Unger. It's corrupt because at the base of it, there are different groups who are vying for power. At the very heart of the philosophical point of view is a perspective on society in which people are organized within groups, largely identity groups based on social class, wealth, or race, or gender, or sexuality, and those groups are competing for power. And the dominant groups have constructed the law not as an exercise in reason or justice, as the law purports to be, and certainly not as something objective, but as an instrument of power over the groups that they dominate. So rather than looking at the legal system we have as entitled to a kind of defeasible respect, the goal is to see how very corrupt the legal system we have is, how it reifies these power structures that keep the people at the bottom at the bottom, and to try to overthrow those power structures. So that, the goal of critical legal studies lawyering is to try to use these instruments of oppression, the legal tools, the doctrinal tools that are the instruments of oppression, to overthrow the system of oppression. Finally, there's this notion of social constructedness. Unger is particularly interesting on this point. He wrote a book called False Necessity, which is fixated on this idea. And it's the notion that many of the categories that organize our thought in the social world, categories like male/female, straight/gay, or indeed, categories that don't go to identity, things like speech versus conduct, many of these categories, all of these categories, purport to be something natural or necessary about the world. But in fact, it is, to use his title, a false necessity. They are socially constructed, and once we see how contingent they are, and not innocently contingent, but really, they are constructed by those in power as an instrument of power, then we can start to realize how oppressive they are, and we can start to overcome them. So the goal as Unger sees it, and I think this is true of MacKinnon, too, to some extent, is to overcome these false necessities. For MacKinnon, there is again, this particular emphasis on groups and power, like the concatenation of two chemical elements, where the groups that are in power construct a way of looking at the world in terms of male/female, for example, which is designed to oppress one group. And you have to overcome the power structures before you can even start to see what's on the other side of them. Critical Legal Studies sounds more political than some of the other jurisprudence concepts we discussed in other episodes. Does it involve a more explicit policy agenda than other theories? So I think it is difficult for people to talk about their Critical Legal Studies project without starting from a standpoint of agreement or disagreement with its aims. Unger is quite explicit that critical legal studies is a leftist effort. It's a politically left effort. That makes it different from legal realism. You could be a conservative realist or a liberal realist, but that does not seem to be the case with Critical Legal Studies. Critical Legal studies, it is a project of the political left. And what I found with my students is, those who are on the politically left like it, and those who are on the political right dislike it. I'd like to try to appreciate it, regardless of one's personal politics or personal agreement with it. What I like about this body of thought is, first of all, its enormous creativity. There's a sense in which standard legal classrooms are, there's a lot of policy analysis of the kind you might find at a school of government, where you're trying to figure out what the most efficient policy is. That's interesting, and I welcome it, and there's a certain kind of lawyerly doctrinal analysis you find in America's classrooms, where you're trying to think about some issue of doctrine as clearly and cogently as possible, maybe to advance the work of courts. But the Critical Legal Studies movement is looking at all of society in this comprehensive way, and trying to ask fundamental questions about how we construct our social world view, and making very creative interventions in the intellectual construction of our social world. They are thinking deeply and creatively about the intellectual construction of our social world. Among other things, it makes culture an object of legal interest. You could say that before the realists, doctrine was the issue of legal interest. And after the realists, it was doctrine and policy. Policy moved into center stage. But after the Crits, culture moved into center stage as an object of law professors' interest, of legal interest, because they're interested in how culture is constructed, they're interested in the way in which culture's construction reflects power relations. I also think we can admire the creativity and the scope. I personally share the Crits' fascination with culture. But there's something else, which is the sense of mission. It's a little frightening, but it's also very admirable, isn't it, that you have these people who are trying to reform society and they have a sweeping, comprehensive vision of how to reform society, and they are fighting for it? Again, I don't always agree. I rarely agree with the fight. But I often look at the soldiers and admire their courage, admire their sense of moral urgency and justice and mission. So I think we can do better than to just love the movement because we share its goals, or hate the movement because we reject its goals. I do think there's much to challenge and much to disagree with in it. To speak of myself, I'm essentially a Burkean, and a Burkean is also extremely interested in culture, also interested in the way in which culture constructs legal categories, also interested in the way in which power functions in society. Now, the Burkean perspective is that much of what we've built, much of what we've sort of evolved over time in culture, is not the product of oppressive power relations, but the product of wisdom over time. It's a sort of social learning process, to find forms of life that advance human flourishing more or less. So there's a sense that what we have inherited, the social order that we have inherited, and the political and legal order that we've inherited, is largely wisdom. It is imperfectly wisdom, and in need of reform in various locations. But the basic difference between a sort of Unger and, in a sense, Unger and MacKinnon on one side and Burke on the other side are perfect opposites. They're both looking at the same thing. They're looking at our cultural and legal inheritance. The one side is looking at that cultural inheritance and saying, "It is corrupt, and we should emancipate ourselves from it. It's inspired by this sort of emancipatory ideal." The other side is looking at the cultural inheritance and saying, "It is mostly wisdom, and we should try to understand its wisdom and perfect its wisdom, but we shouldn't reject it altogether." So I always find the confrontation between these perfect opponents intellectually interesting. So would you characterize Critical Legal Studies as having a historical approach? I think that's a clear yes. Because a lot of what critical scholars do is examine the way in which our cultural categories, like gender, for example, the he/she, the concepts of masculinity and femininity that attach to our gender categories, for example, they examine the ways they were historically constructed precisely to see how contingent those constructions were, how they could have been otherwise, but also to see the forms of power that were deployed in the construction of those categories, and how they might be oppressive. The Crits, one of the things that makes them so interesting is, at least the philosophically-minded among them, the Ungers and MacKinnons are great theoretical figures, but they are very concerned with how ideas function in the social world as opposed to as purely abstract entities, as what Hegel called, mere concepts. So again, I find that really interesting about them. I feel like they are engaged in a methodological project that I admire and share. But they just have a whole set of convictions about that which is uncovered when you start scrutinizing society's construction, which I do not share. So the difference is, we're both looking at the way in which cultures are built, categories are built and deployed, the motivations of the various actors in the legal system and the broader political and cultural system. But we have very different senses of what is motivating them and what would build a better society. I look at our cultural inheritance the way Burke did, that through struggle and failure, we learned ways, as a society, of living together that largely work to secure human flourishing. Then if we lost them, we would be, as he thought of the French Revolution, if we lose them, we will unleash some sort of terrors. Burke was anxious to defend the English cultural inheritance from the revolutionaries within. He was not opposed to our reform. The fascinating thing about Edmund Burke is, how the person who is the opponent of the French Revolution could be a friend to the American Revolution and a friend to the rights of Indians in colonized India, sort of critic of the English colonial project in India. How can that be combined in one person? My answer to that question is, this one person saw something clearly. He saw that societies cannot flourish, and individuals in societies cannot flourish, unless they have a sort of thick, robust, shared ethical life. And that ethical life is inscribed in their social practices and institutions, and reflect a process of adaptation of society over time. So in the American Revolution, what he saw is a group of people who were of English inheritance and who were being denied the traditional rights of Englishmen. And he thought that was oppressive and needed to be overcome. In the French Revolution, he saw a group of people who weren't just fighting for freedom and equality within their cultural inheritance, but were trying to cut away their cultural inheritance, the sort of rich fabric of values and ideas, right down to things like the calendar. They were trying to invent a new calendar, a rationalized French Revolutionary calendar. It was supposed to be a total, rationalist re-thinking of the entire fabric of their society from the ground up, and he thought that would end in violence and folly, and I think he was right. What he saw about India is that the English were showing a lack of respect for the inherited Indian cultural fabric that needed to be preserved. So if Burke were in a conversation with Unger or MacKinnon, the three of them would recognize what one another was talking about. They would be speaking, in some sense, on all fours with each other. They would have very different takes on what it is we inherit via our law and via our culture from the past. But that is precisely what makes the Crits so interesting to me, is that they're contending with that heritage. I think there's one other thing of a somewhat historic nature to say about the Crits, which is, it's become common in the American academy to say that somehow, CLS has failed or ended, that the movement ran aground. Roberto Unger himself published an article about how CLS is dead. I just don't agree with that interpretation. It is true that, notwithstanding critical critiques, the CLS critiques, law schools keep right on teaching Contracts and Torts and the other standard subjects, in more or less the standard ways. The revolution has not come to law schools, yet. But at every law school in America, there are slots for faculty who think and talk this way. There are people who are more or less critical legal studies thinkers, and are focused on issues of identity and have imbibed and are working within this body of thought that focuses on oppressive power structures. Although it hasn't totally taken over, these ways of thinking, in our curriculum or the substance of law itself, it has certainly led to a lot of legal reform and sexual harassment law, rape reform, or a number of other areas. It has changed the way classroom teaching unfolds in some sense. It has also, CLS is the legal wing of a broader cultural wars conflict. The identity-oriented side of that cultural wars conflict has been very, very influential in the university structure as a whole, and in society as a whole. And as a consequence, even if much of a traditional faculty is not Crit, most students are, at least many, many students are. It has made much more headway among students than it has among faculty, and that could just be a generational thing. So it could be, we're a generation away from the critical legal studies vision really overtaking the law schools and reforming mainline curriculum. Or it might be happening around us right now. So I think the old adage, the old saw that critical legal studies is dead was never true, was not true when it was said, it isn't true now. It's alive and well. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!