Studies in Moral, Political, and Legal Philosophy

A Liberal Critique

Andrew Altman

• Publisher: Princeton University Press
• Year: 2021
• ISBN:
  9781400828401
• Topic: Philosophy
• Subtopic: Political Philosophy

Scholars in the "Critical Legal Studies" movement have challenged some of the most cherished ideals of modern Western legal and political thought. CLS thinkers claim that the rule of law is a myth and that its defense by liberal thinkers is riddled with inconsistencies. This first book-length liberal reply to CLS systematically examines the philosophical underpinnings of the CLS movement and exposes the deficiencies in the major lines of CLS argument against liberalism.

FIVE

LAW AND SOCIAL REALITY

Some of the most fundamental claims within the CLS literature concern the character of social reality. These claims are connected in important ways to the CLS positions examined in previous chapters on the liberal conception of the rule of law and the nature of legal doctrine in contemporary liberal states. The claims also expose the deepest divisions within the CLS movement itself. A liberal critique of CLS must come to grips with these claims about the character of social reality. In this chapter, I complete my critique by examining certain key CLS contentions regarding social reality.

Rules and Social Reality

A useful way to gain access to CLS claims about social reality is to begin with an approach to the study of society that was widely influential in the social sciences from before World War II until the early 1960s.¹ The CLS claims about the character of social reality are part of a broader movement in social theory that rejects that approach and should be understood in that context.

The approach in question regards societies as systems whose basic building blocks are rules. Such rules mold, channel, and constrain individual action, thought, and desire. Moreover, rules are regarded as having explanatory primacy within social theory in this sense: The social behavior of individuals must be explained by reference to the rules that constitute their society. Of course, behavior in violation of a rule is possible, but insofar as it has a social meaning, such behavior must be explained by reference to some rule or other (e.g., a rule of some subculture within the society). Social reality is thus taken to be fundamentally constituted by rules, and social behavior is to be explained with reference to such rules. Let us call this view the rule conception of society.

This conception of social reality and social behavior is not limited to its most obvious manifestation in the work of those theorists who adopted some version of structural-functionalism. The elements of this conception can be separated from functionalist ideas about social equilibrium and can be incorporated into a theory that allows more room than traditional functionalism did for social conflict. Indeed, structuralist Marxism proceeds on the basis of a rule conception of society. Moreover, ethnographic accounts of alien cultures, largely innocent of explicit social theorizing, often appear to presuppose the rule conception by focusing their inquiry on the norms which presumably constrain and channel the behavior of individuals and mold their thoughts and desires. A methodological corollary of the rule conception is that the fundamental aim of social inquiry should be the discovery and understanding of the rules constituting a society, since neither rule-abiding nor rule-breaking behavior can be explained unless the rules are understood. In the philosophical literature, the classic postwar presentation of the rule conception of society is in Peter Winch's The Idea of a Social Science.²

There have long been students of society who have had their doubts about the rule conception and/or its methodological focus on discovering and understanding social rules. Malinowski argued vehemently against the methodological focus on rules, pointing out that in the cultures he studied, the rules were often bent, stretched, evaded, and even blatantly disregarded without social sanctions being visited upon those who treated the rules in that way. Freedom from the prescriptions of the rules, he argued, was as important an element of social reality as conformity to rules, and a culture could not be understood without giving both phenomena a central place in any ethnographic account.

In Crime and Custom in Savage Society, Malinowski subjected to devastating criticism the then prevalent view that individual members of primitive cultures automatically and effortlessly obeyed the dictates of their culture's norms.³ He insisted that norm breaking was a central element of cultural life and could not be marginalized by ethnographic studies without seriously distorting the cultural picture. However, in the final analysis, Malinowski's methodological prescriptions are not at all incompatible with the rule conception of society. It is perfectly consistent to point out that rulebreaking behavior is pervasive in all cultures and that no good ethnographic account can ignore or marginalize the extent of such behavior while claiming that such rule-breaking behavior, like all socially meaningful behavior, must be explained by reference to a rule. The former point is Malinowski's; the latter claim is that of the rule conception of society.

To join the issue with the rule conception, one must deny the claim that socially meaningful behavior must be explained by reference to social rules. This denial became more and more frequent in the 1960s and 1970s. The view became widespread that social rules must be explained by reference to individual presocial motivation. According to this view, rules do not constrain and channel individual behavior at all or do so only in sporadic and marginal ways. By and large, rules are resources and instruments that individuals manipulate to get what they want or think good, and what they want or think good, at the most fundamental level, is not determined by social rules. Rules exert no power (or little power) of their own over individual thought, desire, and action; they are mere words. Nonetheless, rules can be invoked by those who wield power to rationalize their actions and even to convince those over whom they exercise power that their subordination is right and proper. Let us call this the instrumentalist view of social rules. Edgerton summarizes the influence of this view on contemporary thinking:

In most social theory today, rules are seen as ambiguous, flexible, contradictory, and inconsistent; they are said seldom to govern the actions of people, much less to mold these people by being internalized by them. Instead, they serve as resources for human strategies.⁴

The CLS literature is united in rejecting the rule conception of society, and one important strand of the literature consists of the instrumentalist view applied to the formal legal institutions of our culture and carried out in a manner designed to expose the implications for the rule of law. If rules cannot constrain and channel conduct, the rule of law must be a fiction. If rules are just instruments of manipulation, then liberal legal philosophy, by its stubborn insistence that legal rules protect us from the state and from one another, is responsible for helping to hide the manipulation of law by judges and other powerholders.

There are numerous passages in the works of leading CLS authors that exemplify the instrumentalist approach. Kairys's account of the rule of stare decisis (the prescription that precedents are to be followed) is representative:

While seeming to limit discretion and to require objective and rational analysis, stare decisis in fact provides and serves to disguise enormous discretion. . . . Precedents are largely reduced to rationalizations, not factors meaningfully contributing to the result; they support rather than determine the principles and outcomes adopted by judges.⁵

In other words, judges manipulate the doctrine of precedent and the rules that can plausibly be attributed to precedents in order to provide legal rationalizations for decisions reached on other grounds. This is the instrumentalist view applied to the judge.

The presence of the instrumentalist approach in CLS stems in part from the influence of the law-and-society movement, a movement devoted to the empirical study of legal behavior and part of the social scientific rejection of the rule conception of society. But the crucial influence on CLS, and on the law-and-society movement itself, stems from American legal realism of the 1920s and 1930s.

Part of the realist view of law is a position known as rule skepticism. The label actually covers two distinct theses, one quite moderate, the other quite radical. The moderate thesis is that legal officials often do not behave in the way called for by the rules inscribed in the authoritative legal texts. This position was articulated by a leading spokesman for realism during its heyday in the 1930s, Karl Llewellyn:

We know that precedents have no [absolutely binding] force. But force they have. We know the doctrine of precedent, and the effect of rules, as studiously ambiguous. Yet ambiguous within margins which in the main are reasonably defined. Rules guide, although they do not control, decision. The rule of the case or the code does lay its hand upon the future, though one finger or several may slip or shift position.⁶

The radical thesis associated with rule skepticism challenged the very existence of legal rules, at least when they were thought of as capable of constraining and channeling individual behavior. The thesis denied that rules were capable of exercising such constraint. Of course, the radical realists would acknowledge the existence of verbal formulations that could be found in legal materials and identified semantically as rules. Their point was that rules were simply such paper formulations and could exercise no power over individual behavior. Jerome Frank, the most prominent of the defenders of this radical view, argued that legal rules were just summaries of past judicial decisions; they were "merely words" that aided in the prediction of decisions but were incapable of exercising any constraint over them.⁷

Legal realism's radical version of rule skepticism was an early and undeveloped form of the instrumentalist view of rules. Those realists who accepted the radical position were quite prepared to agree that people in robes could incant the words of some paper rule and other legal mumbo jumbo, and thereby convince some poor soul that the law required that x be done. But this was simply the employment of the rule as a tool to produce the desired effect. It was not the rule that exercised power but the judge who exercised power and who used the rule both to help him do it and to hide the fact of his power.

The implications for the rule of law of radical rule skepticism are not difficult to fathom. If radical rule skepticism was true, then the rule of law would be impossible. People would always govern; the law never could.⁸ Our faith in the law as a protection against overweening power would be groundless. Our legal rights could no more stop government officials or private centers of power from wreaking havoc with our lives than a toy gun could destroy a tank.

The radical realists, however, did not explicitly draw these conclusions. Along with their moderate colleagues, the radical realists were largely content with liberating state power from the stranglehold of judges and other powerholders who were opposed to the growth of the administrative-regulatory state. Those judges and powerholders had rationalized their opposition by invoking the requirements of the existing legal rules. The basic legal rules of property, tort, and contract, they argued, did not allow for the sort of policies favored by those intent on creating a full-fledged administrative-regulatory state. The realists, both radical and moderate, aimed to defeat these arguments, but the radicals avoided the implications of their rule skepticism for the very idea of the rule of law and the viability of the liberal legal tradition.

In sharp contrast to the realist strategy of avoidance, an important part of the CLS project has been an insistence not only on radical rule skepticism but also on its implications for liberal legal thought. Tushnet, who accepts radical rule skepticism, summarizes the CLS view of the implications of that position for liberalism and the rule of law. He tells us that, given liberal premises about the human tendency to oppress and exploit others, "if the Realists were right, nothing stood between us and the abyss in which the strong dominated the weak, for the law, which liberals thought was our guardian, provided only the illusion of protection."⁹

However, not all CLS figures have adopted radical rule skepticism. Unger, for example, has clearly rejected the radical realist view and has recently formulated the main points of a social theory that rejects both the instrumentalist conception of rules and the rule conception of society. He suggests that neither approach can do justice to both the power of norms to constrain individual thought, desire, and action and the power of individual thought, desire, and action to transcend, break, and create norms.

As we will see, Unger's social theory is fully consistent with the rule of law and the liberal idea that the law can protect us from the power of the state and from one another. This represents a significant departure from his earlier arguments for the impossibility of the rule of law. Even more striking, the political program that he has proposed as the complement to his social theory relies on the implementation of the rule of law for its success and utilizes the rule of law for the liberal aim of protecting individuals from oppression and persecution. In addition, there are a number of other thinkers associated with CLS who have formulated proposals for legal reconstruction that similarly rely on the rule of law and so tacitly presuppose the falsity of both rule skepticism and the instrumentalist view of social reality.¹⁰

There is, then, a central dispute within CLS about the character of social reality and the place of rules within it. But it would be a mistake to think that the dispute is just a replay of the disagreement between the moderate and radical realists or between socialscientific advocates and opponents of the rule conception of society. As it has proceeded in CLS, the dispute has revolved around both the logical and the political implications of the idea that society is a human artifact. Both sides of the CLS dispute have accepted the idea; they have disagreed over its meaning and implications. The dispute has revealed facets of the issue of the place of rules in social reality that lay unexposed by the previous debates in law and social science.

Unger has contributed more than any other scholar to the task of formulating the issues that divide CLS thinkers in terms of the idea that society is a human artifact. He has also provided the most sophisticated explication and defense of the idea to be found in the CLS literature. Let us turn, then, to his treatment of the idea of society as a human artifact.

Unger: Society as an Artifact

The idea of society as an artifact can bes...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• One: Critical Legal Studies v. Liberalism
• Two: Liberalism and Legality
• Three: The Possibility of the Liberal Rule of Law
• Four: The Contradictions of Law
• Five: Law and Social Reality
• Index