Faculty of Law University of Helsinki A Menace to Society Radicalism and Legal Scholarship in the United States, Scandinavia, and Finland, 1965─1980 Juhana Mikael Salojärvi ACADEMIC DISSERTATION To be presented, with the permission of the Faculty of Law of the University of Hel- sinki, for public examination in lecture room P III, Porthania, on the 23th November 2013, at 10 am. Helsinki 2013 Cover photo by Niko Kilpi Cover design by Juhana Salojärvi ISBN 978-952-10-9328-9 (pbk.) ISBN 978-952-10-9329-6 (PDF) (ethesis.helsinki.fi) Unigrafia Helsinki 2013 meanwhile, every 2 or 3 years, somebody in the academy, wanting to keep his place in the university structure (and if you think Vietnam is hell you ought to see what goes on between those so-called brains in battles of intrigue and power within their own little cellblocks) brings out the same old collection of glass and gutless poetry and labels it THE NEW POETRY or THE NEW NEW POETRY but it’s still the same marked deck Charles Bukowski This book is dedicated to nobody Preface Something has changed. The building at the other side of my room stares at me through my window as it has for the past three years, but something is different. It might be that the building is the same, but my perception of it has changed. Maybe I have changed. The past four years that I have spent writing this thesis, the first one just around the cor- ner and the last three in this room, have been truly remarkable in my life. It is strange to look back now and think what I was back then and what I have become since. Many things have changed, indeed. One of the most obvious changes, however, is that this book is finally finished, although it turned out to be a very different book from the one I started out to write. While I studied law at the University of Helsinki, I dreamt about writing a doctoral thesis one day, but I was not quite sure whether I believed in that dream. Once I gradu- ated, however, I think that to continue to a doctorate was the only possible choice for me, since I really could not see myself as a lawyer back then. And since I really enjoyed writing my master’s thesis, to do a more serious piece of research seemed like a great idea. So I began my journey. Now that journey is finished. The making of his book has been an educational experience which has left a permanent mark on me. During the years that have passed since I graduated and made the decision to begin this research, I have learned a lot about life, not simply about doing research and writing a book. My undefined feelings, the failures and misfortunes of the past, and the broken dreams and failed expectations, all intertwine as I wistfully look back to that journey. I began this book with youthful enthusiasm and naivety, and ended up with a far more modest book than originally intended. In this case, however, I think that the journey was more im- portant than the destination. Although the writing of this book has mostly been solitary work, many people have helped me, providing support and guidance during the course of the writing, and to them I owe a great debt of gratitude. First and foremost I would like to thank my super- visor, Professor Heikki Pihlajamäki, who has been truly a splendid mentor and advisor, and without whom this project would never have begun. I would also like to express my greatest gratitude to Professor Jukka Kekkonen, who first gave me the inspiration to begin my doctoral work, and who has since provided support and useful advice as well as critical comments. I would also especially like to thank my pre-examiners, Professor Emeritus Kjell Åke Modéer and Dr. Kaius Tuori, the first of whom has also agreed to act as my opponent. I also owe very special thanks to Dr. Mia Korpiola, whose critical comments in the final phase of my work proved very helpful, saving my manuscript from many errors. I would also like to thank my colleagues and co-workers at the legal history department of the University of Helsinki, Markus Kari, Suvi Kokkonen, Raija- Liisa Komulainen, Dr. Toomas Kotkas, Toni Malminen, Aleksi Rantanen, Jussi Sallila, Dr. Jukka Siro, Marianne Vasara-Aaltonen, and Dr. Iisa Vepsä, who all have given use- ful advice and made the work more pleasant. Furthermore, I am very grateful to Profes- sors Niklas Bruun, Lars D. Eriksson, Antti Kivivuori, and Kaarlo Tuori, scholars who actually contributed to the critical scholarship in the 1960s and 1970s and thus were subjects of my study, but who nonetheless were kind enough to comment on my manu- script. I am also greatly indebted to Dr. Roderick McConchie for revising the English of my manuscript. This book is now much better than what it would have been without the help of these and many other people. All the remaining mistakes and errors in the book are entirely mine, of course. I would like to thank the Research Foundation of the University of Helsinki, the Finnish Lawyers’ Society, and the Aili & Brynolf Honkasalo Foundation for providing financial support and thus making this research possible. There are also many people outside the scholarly community who have supported me over the years. Therefore, I would like to thank my family and friends, Niko Kilpi for providing the cover picture, as well as the people at the Artlab Studios. I have unfor- tunately been too devoted to my work to show my gratitude and appreciation in the way I probably should have. Nevertheless, a great Cheers to you all! Last, but most definitely not least, I will thank my wife, Taru Takamaa, who is the most important person in my life. Since I met her, she has given my life a whole new meaning, making me realize the beauty of existence, as well as the fact that life really is easier to bear when it can be shared with someone. I am not sure where I would be without her. All I am and have is because of her, and to her I owe everything; my life and love included. I know I should have dedicated this book to you, Taru, had I not been obsessed with my willful decision to not to dedicate it to anybody. I hope you’ll understand. Helsinki, October 2013 Juhana Mikael Salojärvi Table of Contents Preface vii Table of Contents ix I Introduction 1 1 Jurisprudence against the grain: The focus of the study 1 2 “We are people of this generation”: The sixties and the law 2 3 Defining “critical legal scholarship”: Subject and sources 7 4 The pursuit of legal history 12 5 Critical legal scholarship of the 1960s and 1970s in legal history 17 6 The structure of the study 22 II Background 25 1 Introduction 25 2 A history of legal thought in the United States 26 3 An outline of a history of Scandinavian and Finnish legal thought 30 4 The World the War made 35 4.1 The legacy of the Second World War 35 4.2 Changes in scholarship 36 4.3 The rise of the New Left: Intellectual and social criticism 40 4.4 1968: “The Year that Rocked the World” 42 III Alternative and critical legal scholarship in the United States, 1965–1980 45 1 American society in the 1960s and 1970s 45 2 Alternative legal scholarship and critical lawyers of the 1960s 51 2.1 Introduction 51 2.2 Neutral principles and the dynamics of legal reasoning: A prelude to criticism 52 2.3 Political jurisprudence 56 2.4 The Law and Development movement: A cultural approach to law 64 2.5 The Law and Society movement: A social approach to law 67 2.6 Critical perspectives on law in society 73 2.7 Concluding remarks 77 3 Critique radicalized: The evolution of CLS 78 3.1 The origins of CLS: From sociological jurisprudence to critical legal scholarship 78 3.1.1 Introduction 78 3.1.2 Radicalism and the law school: The evolution of critical thought 79 3.1.3 Crisis meets jurisprudence: Fundamental criticism of legal thought 84 3.1.4 Critical perspectives on legal history 99 3.1.5 Constitutional law and criticism 103 3.1.6 Critical scholarship on criminal law 108 3.2 The creation of CLS, 1977–1980 117 3.2.1 The evolution of critical thought: The Conference on Critical Legal Studies, 1977 117 3.2.2 Critical legal scholarship coming of age: CLS in the late 1970s 120 3.2.3 The emergence of the Critical Race Theory 135 3.2.4 The rise of feminist jurisprudence 138 4 Historical perspectives on CLS 143 5 Conclusions 152 5.1 CLS in Context 152 5.2 A final remark: CLS in the 1980s 154 IV Alternative and critical legal scholarship in Scandinavia, 1965–1980 157 1 Introduction 157 1.1 Scandinavia as a legal area 157 1.2 Scandinavia and the 1960s 159 2 The roots of critical legal scholarship, 1965–1973 164 2.1 Introduction 164 2.2 The rise of sociology of law in Scandinavia 165 2.3 Criticism of legal scholarship in the late 1960s and early 1970s 169 2.4 Alternative legal scholarship in the early 1970s 178 3 The origins of Scandinavian Marxist legal scholarship, 1972–1976 182 4 Changes in criminal law scholarship, 1965─1979 195 4.1 Criminal law and alternative legal scholarship 195 4.2 Criminal law scholarship and criminal policy 201 4.3 Criticism of criminal law in perspective 211 4.4 Concluding remarks 213 5 Alternative views on constitutional law, 1965─1979 215 6 Alternative and critical legal scholarship in the late 1970s 222 6.1 Development of the critical mood 222 6.2 The legal profession and the critical mood 224 6.3 Perspectives on the rights of the citizen 227 6.4 Critical gender studies in law 230 6.5 General problems of jurisprudence 232 6.6 The rules-principles distinction 237 6.7 Marxist legal scholarship in the late 1970s 240 7 Conclusions 245 7.1 A historical perspective on critical legal scholarship 245 7.2 Critical legal scholarship and the 1980s 249