A Menace to Society

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 corner 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 graduated, 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 important 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 useful 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 manuscript. 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

V Alternative and critical legal scholarship in Finland, 1965─1980 251 1 Finland and the 1960s: The great structural change in society 251 2 Criticism of legal scholarship 254 2.1 A prelude to the problems of legal scholarship in the 1960s 254 2.2 The rise of critical legal scholarship in the late 1960s 257 2.3 The elaboration of critical legal thought, 1970─1976 267 3 Criticism of constitutional law, 1967─1978 283 3.1 Constitutional law and scholarship 283 3.2 Criticism of the judiciary 294

3.3 Concluding remarks 299 4 Alternative criminal law scholarship, 1965─1979 300 5 Alternative legal scholarship on private law in the 1970s 314 5.1 General remarks 314 5.2 Labor law 315 5.3 Family law 318 5.4 Contract law 320 6 Criticism and reform of legal education, 1968─1979 324 7 Alternative legal scholarship at the end of the 1970s: From radical criticism to alternative analysis of law 332 8 Conclusions 339 8.1 A historical perspective on critical legal scholarship 339 8.2 The 1980s and critical legal scholarship 343

VI Conclusions 345 1 A theoretical perspective on critical legal scholarship 345 2 Comparative perspectives on the United States, Scandinavia, and Finland 347 3 Scandinavia v. Finland 352 4 Critical legal scholarship as a historical phenomenon 354

Bibliography 361

Index 429

I Introduction

1 Jurisprudence against the grain: The focus of the study

Legal scholarship investigates law and its functions in society. Law creates the state, settles conflicts between individuals and between individuals and the state, provides a structural framework for public and private institutions and organizations, and pro- nounces what is permitted, required, and denied in society. There are many forms of legal scholarship, but “conventional research is primarily, though not exclusively, focused on doctrine ─ cases, statutes, and treatises.” “Doctrinal analysis…is undertaken to establish a particular interpretation of case law on the basis of arguments and authority which would be acceptable to an appellate judge.”1 In the Continental European sense, doctrinal analysis produces information about and systematizes the law,2 which, although different on the surface, is basically the same as the previous definition. Every once in a while, however, movements appear which criticize the traditional legal scholarship and try to trash both traditional scholarship and its object, the law. The criticism can be so radical that the most traditional scholar may feel that “the nihilist who must profess that legal principle does not matter has an ethical duty to depart the law school.”3 This study explores one of these occasions. The 1960s and 1970s witnessed a major critical attack on law and legal scholarship in various countries. The focus of this study is the critical legal scholarship of the 1960s and 1970s in the United States and the Nordic Countries. The countries considered are the United States and Finland individually, and the Scandinavian countries, Denmark, Norway, and Sweden collectively. Finland has been chosen for various reasons. First of all, it is my home country. In addition, the history of the Finnish jurisprudence of the latter half of the twentieth century is still an unexamined field and thus in need of historical research. Furthermore, critical legal scholarship is a particular topic that needs a thorough examination because it can be considered as a truly significant epoch in the development of modern legal scholarship. The United States has been chosen because of its global significance and because it provides an excellent point of comparison. Scandinavia, which will not be dealt with in such detail as Finland and the United States, follows naturally because it helps to understand Finland in context and

1 Frank Munger and Carroll Seron, Critical Legal Studies versus Critical Legal Theory: A Comment on Method, 6 Law & Policy 257, 260 (1984). 2 Aulis Aarnio, Essays on the Doctrinal Studies of Law (Dordrecht: Springer 2011), 19. Aarnio uses the expression “doctrinal studies”. Here the terms “doctrinal studies” and “doctrinal analysis” are used as synonyms. 3 Paul D. Carrington, Of Law and the River, 34 Journal of Legal Education 222, 227 (1984).

1 because of the need to explore the development of the critical legal scholarship of the 1960s and 1970s there as well. The time frame is from the mid-1960s to the end of the 1970s because these were the pivotal years in the emergence of the critical scholarship. The study has three main purposes. First, I will reconstruct the historical development of critical legal scholarship. I will analyze how it emanated within the social and scientific circumstances and how it responded to them. The purpose is to understand critical legal scholarship in its context, as well as to analyze the reasons for its emergence. Because this is a study of legal history, not of legal theory, I will concentrate on the historical development of critical scholarship and not examine its theoretical merits. In addition, because this is a study of academic legal scholarship, the changes in law are not considered. Only regarding Finland will I use a couple of noteworthy law reforms, the reform of the Constitution and the criminal law, as examples of the dimensions of critical legal scholarship and its impact on law. Second, I shall compare the movements of the various countries and analyze the factors explaining the differences and similarities between them. The comparative analysis is rather general and abstract, but it will help us to understand the dimensions of critical legal scholarship. Relating to the two previous questions, I will investigate the main influences and the substance of critical scholarship in order to understand its purposes and to analyze the possible motives for the critical literature. I will not analyze all of the literature the critical scholars referred to in detail because the basis of their influence is vast and diversified. Rather, I will examine at a very general level the most important influences in order to clarify the development and the substance of critical scholarship. The third purpose and the overall goal relating to my two questions is to understand the “essence” of the critical legal scholarship of the 1960s and 1970s. The essence of this critical scholarship is crucial in understanding it as a historical phenomenon and in relating the three different areas to each other.

2 “We are people of this generation”: The sixties and the law

“We are people of this generation, bred in at least modest comfort, housed now in universities, looking uncomfortably to the world we inherit.”4 Thus wrote the Students for a Democratic Society in their famous statement at Port Huron, Michigan, in June 1962. The world had recovered from the atrocities of the Second World War, and the 1960s was about to become the culmination of widespread social protests and a decade of turbulence. The decade marked the formation of the New Left, a movement of young, often academic people against the conventional values and institutions of society and struggling for a new and better utopian society, as well as the culmination of a counter- culture which also abandoned the traditional life-style and struggled against the conven-

4 Port Huron Statement of the Students for a Democratic Society, 1962. (last visited 23.9.2011).

2 tional social mores.5 The turbulence of the 1960s developed into a student revolt on a previously unseen scale, when students protested violently against the authorities,6 and the most turbulent year, 1968, came to be remembered as the “year that rocked the world.”7 The 1960s was also a time of various civil rights movements and social reforms.8 The protest movement in the universities was not simply a movement of students revolting, but scholars also protesting against their tradition. Legal scholarship also faced an attack under which the authority of tradition was disputed and rejected. The roots of modern legal scholarship both in the United States and Scandinavia are in the late nineteenth-century conceptualism which regarded law as science, stressing the fact that law can be conceptualized in abstract concepts from which solutions can be derived.9 The conceptual tradition was contested by various sociological traditions around the turn of the century, and legal realism prospered within the universities in the 1920s and 1930s. Realism criticized conceptualism’s metaphysical nature and its assertion that legal reasoning could be understood in abstract and scientific terms. Real- ism saw law as a man-made, positivist enterprise, and therefore legal scholarship ought to be social engineering exploring the social functions of law. The Second World War, however, brought changes, and Realism lost much of its authority. The realist lessons were domesticated and integrated into postwar legal scholarship, which hence was not conceptualist in the nineteenth-century sense, but it was neither realist in the extreme sense.10 The roots of modern Finnish legal scholarship are also in nineteenth-century Ger- man conceptualism, but realism did not make significant headway in Finland in the

5 Conventional stories of the emergence of the American New Left include Maurice Isserman, “If I had a Hammer…”: The Death of the Old Left and the Birth of the New Left (New York: Basic Books 1987); James Miller, “Democracy is in the Streets”: From Port Huron to the Siege of Chicago (New York: Si- mon and Schuster 1987). For a revision of the movement, see John McMillian and Paul Buhle (eds.), The New Left Revisited (Philadelphia: Temple University Press 2003). On the New Left in Denmark and Sweden, see, e.g., Thomas Ekman Jørgensen, Transformations and Crises: The Left and the Nation in Denmark and Sweden, 1956–1980 (New York: Bergham Books 2008). On the Finnish new left, see, e.g., Marja Tuominen, “Me kaikki ollaan sotilaitten lapsia”: Sukupolvihegemonian kriisi 1960-luvun suomalaisessa kulttuurissa (Helsinki: Tammi 1997). 6 On the student protests, see Cyril Levitt, Children of Privilege: Student Revolts in the Sixties (Toronto: University of Toronto Press 1984); Sven-Olof Josefsson, Året var 1968: Universitetskris och studentrevolt i Stockholm och Lund (Göteborg: Avhandlingar från Historiska institutionen i Göteborg 1996); Ta- pani Suominen, Ehkä teloitamme jonkun: Opiskelijaradikalismi ja vallankumousfiktio 1960- ja 1970- lukujen Suomessa, Norjassa ja Länsi-Saksassa (Helsinki: Tammi 1997). 7 Mark Kurlansky, 1968: The Year that Rocked the World (London: Jonathan Cape 2004). 8 Edward P. Morgan, The 60s Experience: Hard Lessons about Modern America (Philadelphia: Temple University Press 1991); Søren Hein Rasmussen, Sære alliancer: Politiske bevægelse i efterkrigstidens Danmark (Odense: Odense Universitetsforlag 1997); Terttu Pesonen, Vallatonta valtaa: Tutkielma 1960- luvun radikalismista Suomessa (Helsinki: Helsingin Yliopisto 1992). 9 William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886– 1937 (New York: Oxford University Press 1998); Lars Björne, Den konstruktiva riktningen: Den nordiska rättsvetenskapens historia, Del III, 1871–1910 (Lund: Rättshistorisk bibliotek 2002). 10 Morton J. Horwitz, Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press 1992), 169–268; Lars Björne, Realism och skandinavisk realism: Den nordiska rättsvetenskapens historia, Del IV, 1911–1950 (Stockholm: Rättshistorisk bibliotek 2007).

1930s.11 Finland thus remained more or less within the conceptualist framework of the nineteenth-century throughout the first part of the twentieth. The 1950s and 1960s witnessed the birth of the Finnish analytical school of jurisprudence, which was a sophisticated version of conceptualism, deriving its motives from the Scandinavian realist’s criticism of metaphysics and postwar linguistic philosophy, and dividing legal concepts into finer parts and examining their meaning in legal practice.12 In the 1960s and 1970s, critical legal scholarship entered the stage by arguing, roughly speaking, that law and legal scholarship were political. The criticism took various forms. In the United States, for example, it was total criticism of knowledge, 13 criticism of the rational basis of legal reasoning,14 or analysis revealing the economic and political purposes of legal doctrine with respect to its historical development.15 In Scan- dinavia, critical scholars opined that legal scholarship ought to be socially oriented,16 or Marxist analysis of law,17 or historical study revealing the economic and political purposes of law.18 In Finland, critical legal scholars developed a program for a political jurisprudence paying attention to the political and social functions of law,19 argued that legal reasoning was merely rhetoric,20 or explored the historical development of law in order to reveal its social and economic purposes.21 As can be seen, there was no uniform basis of critical legal scholarship, but rather there were many critical legal theories. By and large, critical legal scholarship in the various countries shared many similarities. At the center of the criticism was liberal legalism.22 Critical scholars argued that

11 See, e.g., Toni Malminen, So You Thought Transplanting Law Is Easy? Fear of Scandinavian Legal Realism in Finland, 1918─1965, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki (eds.), Nordic Law: Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 75–87. 12 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luentoja oikeustieteen historiasta (Helsinki: Helsingin yliopisto 1996), 127–137. 13 Roberto Mangabeira Unger, Knowledge and Politics (New York: The Free Press 1975). 14 Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685– 1778 (1976). 15 Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Massachusetts: Harvard University Press 1977). 16 Per Olof Bolding, Juridik och samhällsdebatt (Stockholm: Almqvist & Wiksell 1968); Carl August Fleischer, Grunnlovens grenser: For lovregulert fastsettning av erstatning ved eksproriasjon, ─ særlig ved verdistigning som ikke skyldes grunneiers innsats (Oslo: Universitetsforlaget 1968). 17 Göran Elwin & Dag Victor, Rättsteori och dialektisk materialism, HfKS 4/1973, 21─38; Anders Fogel- klou, Den orättfärdiga rätten: En studie över Hegels rättfärdigande och marxismens kritik av den moderna rättsordningen (Stockholm: P.A. Nordstedt & Söners förlag 1978). 18 Torben Wanscher, Forsamlingsfriheden og “fælledslaget”: Studier til belysning af statens fastlæggelse af grænserne for arbejderbevægelsens forsamlingsfrihed 1872─1874 (Århus: Modtryk 1979). 19 Antti Kivivuori, Politische Rechtswissenschaft (Helsinki 1971). 20 Lars D. Eriksson, Rättslig argumentering och den dialektiska logiken, JFT 1966, 445–482. 21 Antero Jyränki, Perustuslaki ja yhteiskunnan muutos: Tutkimus varallisuusoikeuksien ja taloudellisen toiminnan vapauden perustuslainsuojan kehittymisestä tulkinnan avulla v. 1863─1919 (Helsinki: Tammi 1973). 22 Critical scholars have had several conceptions of “liberalism” and have labeled people with different opinions as “liberal”. Here the concept of “liberal legalism” means that individual liberties are protected, everyone is equal before the law, the rule of law is considered necessary to protect liberties and to establish a government, law is not inherently biased toward any potential interests, and is a potential tool to change society. (On the definition of “liberal legalism”, see, e.g., Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press 1996), 42–43, 265 n. 52. She prefers the phrase

4 the rule of law was fundamentally flawed and structured to protect particular interests, and traditional legal scholarship was criticized for its inability to realize the ideological elements of law. According to the critics, traditional scholarship was influenced by social ideology and the biases of the scholar and could thus not provide realistic information about the law. They thought that since legal reasoning was also influenced by social ideology and personal biases in addition to the fact that law was contradictory, it had no rational basis. Critical scholars emphasized the importance of analysis of the biases of law. The development of critical scholarship was also basically the same. Criticism of law and the politicization of legal research, especially studies on criminal law, were significantly boosted in the 1960s. The critical criminology and sociology of law of the 1960s were important antecedents to the more critical legal scholarship which emerged in the late 1960s and the 1970s, when the criticism took more organized and sophisticated forms, turned more toward a philosophical criticism of law, and when critical scholars established forums for discussion on critical scholarship. In the United States, this appeared in the development of the Critical Legal Studies movement (CLS)23 and in the Nordic Countries as the rise of Marxist legal scholarship and the establishment of critical law reviews.24 The nuances and details of the critical legal theories of the various countries become clearer after a comparative analysis, only after which can we achieve an understanding of the movements. For instance, CLS has often been criticized for its nihilism and lack of alternatives.25 It is true that it was more a movement of philosophical criticism, whereas Scandinavian critical scholarship was often more constructive and political, providing alternative views for reforms. However, as will be seen, the conception of CLS as a merely critical and destructive movement is exaggerated and simplifies the theories.26 To a certain extent at least, American critical legal scholarship believed more in the deconstruction of doctrine than in the radical social reform through law, but this is

“legal liberalism” instead, however. On the problem of liberal legalism in leftist scholarship, see, e.g., Wendy Brown and Janet Halley, Introduction, 5–7, in Wendy Brown and Janet Halley (eds.), Left Legal- ism/Left Critique (Durham: Duke University Press 2002), 1–37.) 23 In general on CLS, see Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Massachusetts: Harvard University Press 1987). CLS has since become one of the most influential jurisprudential “schools”. On the various symposiums held on the subject, see 36 Stanford Law Review 1–674 (1984); 34 American University Law Review 927–1262 (1985); 6 Cardozo Law Review 691–1032 (1985); 52 George Washington Law Review 239–287 (1985); 35 Journal of Legal Education 1–122, 157–298 (1985) [Symposium on legal education]; 31 St. Louis University Law Journal 1–132 (1986); 14 Journal of Law and Society 1–198 (1987); 81 Northwestern University Law Review 589–952 (1987) [Symposium on Unger’s theory]; 22 Harvard Civil Rights-Civil Liberties Law Review 297–702 (1987) [Minorities critique of CLS]; 90 Georgetown Law Journal 127–252 (2001) [Symposium on the scholarship of Mark Tushnet]; 22 Cardozo Law Review 701–1190 (2001) [symposium on Duncan Kennedy, A Critique of Adjudication: {fin de siècle} (Cambridge, Massachusetts: Harvard University Press 1997)]. 24 In general, see Göran Elwin & Dag Victor (eds.), Rätt och marxism: Introduktion och material (Stock- holm: Kontrakurs 1978). 25 Phillip E. Johnson, Do You Sincerely Want to be Radical? 36 Stanford Law Review 247, 249 (1984). 26 See, e.g., Mark Kelman, Trashing, 36 Stanford Law Review 293, 299–300 (1984). As will be noted, the “mainstream” CLS was mostly critical, but at the periphery of the movement scholars often provided alternatives to improve the situation.

5 not the whole picture. In addition, when we set the development in context, we will see that CLS grew out of an atmosphere in which critical and realist legal scholarship had a position,27 and the critical scholars were thus not the first to revive realist notions. Fur- thermore, the fact that the criticism in Finland was relatively more radical than elsewhere follows from the historical circumstances of Finnish society and scholarship. The critical legal scholarship of the 1960s and 1970s has to be understood in context, which is the first and foremost purpose of this study. The 1960s and 1968 in particular did not come out of nothing;28 neither did critical legal scholarship. It was a segment in a process, reflecting various levels of development and change. It is therefore important to understand this critical scholarship against its historical context and against its place in the history of legal scholarship because it was the jurisprudential tradition that the critical scholars attacked. Of course, critical legal scholarship was not a particular phenomenon of the 1960s. On the contrary, in the course of history there have been several critical scholars and jurisprudential movements similar to those of the 1960s. In the late eighteenth century, Jeremy Bentham criticized the law of England in a radical manner by arguing that the whole common law system ought to be changed.29 Well-known attacks on legal scholarship occurred in late nineteenth-century Germany, when the jurisprudence of concepts was criticized for being completely detached from reality. The critical scholars argued that legal scholarship should focus on the interests of law,30 and that legal reasoning ought to be free in accordance with social needs.31 In the United States, Roscoe Pound criticized the legal tradition in the early twentieth century,32 and in the 1920s and 1930s the legal realists launched heavy attacks on traditional scholarship.33 In fact, legal historian Harold Berman writes that late-medieval humanistic jurisprudence “was a fifteenth- century parallel to the radical attack against traditional legal scholarship by ‘realist’ and

27 See, e.g., Arthur S. Miller and Ronald F. Howell, The Myth of Neutrality in Constitutional Adjudica- tion, 27 University of Chicago Law Review 661─695 (1960); Charles A. Reich, Toward the Humanistic Study of Law, 74 Yale Law Journal 1402─1408 (1965). 28 Arthur Marwick has spoken about “the long 1960s”, ranging from the late 1950s to the mid-1970s, 1968 being merely a part of the period. (Arthur Marwick, The Sixties: Cultural Revolution in Britain, France, Italy, and the United States, c.1958–c.1974 (Oxford: Oxford University Press 1998), 7–8, and see id. at 535, 656). His thesis, nevertheless, is that there was a period called “the sixties” in which several considerable cultural changes occurred. 29 Jeremy Bentham, A Fragment on Government (Edited with an Introduction by F. C. Montague, Lon- don: Oxford University Press 1931) (1776). 30 Rudolf von Jhering, Der Zweck im Recht (Hildesheim: Georg Olms Verlag 1970) (1877─1883). 31 See in general, e.g., Franz Wieacker, A History of Private Law in Europe ─ with particular reference to Germany (Oxford: Clarendon Press 1995), 453–458. 32 Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, I–III, 24 Harvard Law Review 591–619 (1911), 25 Harvard Law Review 140–168, 489–516 (1912); Roscoe Pound, Mechanical Juris- prudence, 8 Columbia Law Review 605–623 (1908). 33 Karl N. Llewellyn, A Realistic Jurisprudence ─ The Next Step, 30 Columbia Law Review 431─465 (1930); Karl N. Llewellyn, Some Realism About Realism ─ Responding to Dean Pound, 44 Harvard Law Review 1222–1264 (1931); Jerome Frank, Law and the Modern Mind (London: Stevens & Sons 1949) (1930).

‘critical’ movements in American jurisprudence of the twentieth century.”34 Different times have had their share of critical legal scholarship, and the 1960s was no exception. Critical theories always reflect the currents of their time, and studies on particular times and places reveal something new about the dynamics of legal scholarship, which is the purpose of my historical reconstruction. The analysis of the “essence” of critical legal scholarship of a particular time, however, requires another perspective.

3 Defining “critical legal scholarship”: Subject and sources

This study concerns critical legal scholarship, but the concept of critical scholarship is broad and ambiguous. One could even argue that all scholarship is critical in some sense. Our subject, however, is scholarship that is somehow “more” critical than the usual sense of the word. What we are seeking here is a certain kind of “radical” criticism of law. In a dictionary sense, the word “radical” can mean going to the root of the problem or opinions far beyond the norm,35 and this is especially what we mean when speaking of radical or critical legal scholarship. Critical legal scholarship thus criticizes the fundamentals of law and legal scholarship. It goes to the root of the problem, and if it provides alternatives to change the situation, which it does not necessarily do, these are usually extreme proposals. Critical legal scholarship is therefore critical in a fundamental sense.36 In this study, we are concerned with the way the critical discourse was manifested within the legal discourse. The conflict between traditional and critical scholarship can be illustrated by particular scientific concepts which reflect the ideas of the critical legal scholars. The theories below are used simply to clarify and explain the situation, and to illuminate the difference between traditional and critical scholarship. This is also necessary in order to understand critical scholarship as a historical phenomenon, as will be noted. The theories used were originally developed for the natural sciences and do not therefore apply straightforwardly to legal scholarship. Their uses as examples, however, help to demonstrate our subject and to understand the scholarly controversy that was at stake. In his well-known book, The Structure of Scientific Revolutions, Thomas Kuhn launched the concept of the paradigm into the scientific language. Simply put, a paradigm is the intellectual framework of a scientific community; its shared concepts, values, methods, and beliefs. A paradigm determines the way scientific problems are

34 Harold J. Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, Massachusetts: The Belknap Press of Harvard University Press 2003), 103. 35 http://www.websters-online-dictionary.org/definitions/radical (last visited 27.4.2012). 36 On the various forms of legal criticism and its problems, see Kaarlo Tuori, Law, Power and Critique, 22–28, in Kaarlo Tuori, Zenon Bankowski, Jyrki Uusitalo (eds.), Law and Power: Critical and Socio- Legal Essays (Liverpool: Deborah Charles Publications 1997), 7–29. As noted, this study is not concerned about the theoretical merits or potential of critical scholarship.

7 viewed and defined, and offers methods for solutions.37 Traditional legal scholarship can be seen as the paradigm against which the critical scholars rebelled. The critical scholars viewed facts differently than the traditional scholars, which caused anomalies in their thought.38 These anomalies, however, did not follow discoveries which the paradigm could not explain, following rather the different style of perception, or epistemology, of the critical scholars. To illustrate this kind of anomaly, we can use another theory by another philosopher of science, Ludwik Fleck,39 and his theory on thought collectives and thought style, because it provides a better view of the historical, cultural, and social dimensions of scholarship. According to Fleck, a thought collective is the common intellectual background of a scientific community, and a thought style is its particular way of scientific observation. Scientific facts are construed within a historical and social process. A thought collective makes scientific observation and discourse possible, and a thought style determines the observation of problems.40 The nature of perception thus becomes important, because one has to distinguish essential from inessential and the image from the background. One has also to recognize the category to which the object belongs .41 The critical scholars thus departed from the conventional though styles and viewed the subject of their scholarship with thought styles alien to the thought collective. The change in thought styles and thought collectives occurs in an extensive context.42 Cognition consists rather of what we learn than what we acknowledge, and prior knowledge conditions the formation of newer knowledge. A new epistemology has to be adapted to its social and cultural-historical context so that it will not fatally contradict the history of consciousness and practical every-day life.43 Studying critical legal scholarship in context provides us information on the ways the critical scholars received the scholarly tradition and their education, and how the consciousness they acquired through their education responded to the changes in society, culture, economics, and politics. The interplay between the thought collective and the context is therefore at the heart of the critical epistemology, since, Fleck claims, “[a]lthough the thought collective

37 Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: The University of Chicago Press 1996), esp. at 10–13, 23–42, 92–95. 38 Id. at 52–65. An anomaly occurs when the dominant paradigm is unable to provide solution to a problem. 39 Fleck’s theory was originally published in 1935, but was mostly ignored and forgotten because it was published by a small Swiss publishing company, and furthermore, because most of his other writings were published in Polish. Nevertheless, Fleck's ideas did influence the theory of Kuhn. The theories of both Kuhn and Fleck are used here simply to illustrate the epistemological aspects of critical legal scholarship. 40 Ludwik Fleck, Genesis and Development of a Scientific Fact (Chicago: The University of Chicago Press 1979), esp. at 9–11, 37–51, 64, 84–111. 41 Ludwik Fleck, To Look, To See, To Know, 130, in Robert S. Cohen & Thomas Schnelle (eds.), Cogni- tion and Fact: Materials on Ludwik Fleck (Dordrecht: D. Reidel Publishing Company 1986), 129–151. 42 The problem of how various thought styles come to exist is more a problem of theory of science rather than legal history, and therefore goes beyond the scope of this study. 43 Ludwik Fleck, On the Crisis of ‘Reality’, 47–49, in Cohen & Schnelle (eds.) 1986, supra n. 41 at 47– 57.

8 consists of individuals, it is not simply the aggregate sum of them. The individual within the collective is never, or hardly ever, conscious of the prevailing thought style, which almost always exerts an absolutely compulsive force upon his thinking and with which it is not possible to be at variance.”44 The story of critical legal scholarship is a story of scholars adopting alien thought styles and thus challenging the scientific community. By criticizing the paradigm of law, one stepped beyond the conventional boundaries of criticism. Within a paradigm, law was understood and approached in approximately the same fashion, but the criticism of the paradigm, on the other hand, meant criticism that did not approve the fundamental premises of law and legal scholarship. Critical legal scholarship thus deviated from the basic features of traditional scholarship. If we assume that traditional scholarship focuses on explaining the way the law responds to particular legal problems, assumes the autonomy of law to some extent, uses legal material, such as cases and statutes etc., as sources, and excludes considerations of values and policies, then critical legal scholars perceived both the subject and the functions of scholarship in a different way than traditional scholars. This is what will be called the nucleus of critical or radical-critical legal scholarship. It disliked simple doctrinal analysis and rejected the possibility of objectivity, neutrality and rationality in legal research, reasoning, and law, and therefore encouraged the use of values and policies in these regards. Since critical legal scholarship often sought the problems of law in its roots, it can be called radical scholarship because it did not aim to correct details on the surface, but aimed to change the fundamentals. These were the simple characteristics of critical legal scholarship, but there were differences. For instance, CLS, the form of American critical legal scholarship of the 1970s, did not always have an instrumental view of law. Rather, it was characterized by pessimism about law as an agent of social change, and instead of social sciences it applied philosophical analysis to law. American critical legal scholarship before CLS bore a closer resemblance to the instrumental, social-scientific legal research. Nevertheless, critical legal scholarship in a more radical or more modest sense meant an alternative perspective on law. The difference between critical scholars and traditional scholars often originated from the epistemological differences between them. Critical and traditional scholars had a different way of perceiving legal phenomena, different way of dealing with their observations, and a different view of what the law ought to be. These fundamental differences in observation and consciousness laid the basis for critical legal scholarship. Jurisprudential “schools” or “movements” are hardly ever unambiguous.45 Critical legal scholarship was not a unified theory but a network of scholars sharing a common basis.46 Critical scholars developed their own theories and often disagreed on details.

44 Fleck 1979, supra n. 40 at 41. 45 N.E.H. Hull, Networks & Bricolage: A Prolegomenon to a History of Twentieth-Century American Academic Jurisprudence, 35 American Journal of Legal History 307–322 (1991). 46 A Conversation with Duncan Kennedy, 2/24 The Advocate 56, 56 (1994).

Furthermore, there were various scholars at the time who disagreed with the traditional scholarship to a certain extent but who did not adopt a radical view. The forms of scholarship that sought to change the nature of the tradition without however departing from it in a fundamental sense will be called alternative legal scholarship. If a paradigm refers to methods of research, and thought styles refer to perception, then alternative scholarship sought to change the paradigm and critical scholarship perception and consciousness. Thus, the core of critical legal scholarship took a radical distance from the tradition, and the periphery of critical scholarship sought to change certain aspects of the tradition while remaining more or less true to its fundamental tenets. In this study, the CLS movement and Marxist legal scholarship are at the core, and in the periphery are the various forms of sociological and realist jurisprudence. The core will be called “critical legal scholarship”, and the periphery “alternative legal scholarship”. The sources consist of the published legal literature of the 1960s and 1970s, from which I have sifted the literature which adopts a critical stance toward law and traditional legal scholarship in the sense of this study. With respect to the United States, my starting-point is naturally CLS, even though it is very difficult to define it.47 The main focus is the literature listed in the CLS bibliography,48 although, as the authors write, the list is a bibliography only of the movement and does not include critical legal literature beyond that.49 CLS was not the only critical legal movement in the postwar United States, but since it was the most radical and influential, it is crucial here. In placing CLS in context, I have included much critical legal literature of the 1960s outside the list, but as the study progresses toward the 1980s, I will stick more closely to the literature it provides. At the heart of American critical legal scholarship were C. Edwin Baker, Peter Gabel, John Griffiths, Morton Horwitz, Al Katz, Mark Kelman, Duncan Kennedy, Karl Klare, Mark Tushnet, and Roberto Mangabeira Unger. Many others might be included as well. CLS expanded tremendously in the 1980s, but I will focus on the earlier scholarship. Furthermore, there were many critical scholars in the 1960s and 1970s outside CLS, such as the radical Arthur Kinoy, the progressive liberal Charles Reich, the post- realist Arthur Selwyn Miller, the radical activist Ralph Nader, the nihilist Arthur Leff, and many others who will be accorded less attention. Various schools of alternative and critical legal scholarship preceded and surrounded the CLS movement. I will note that the rise of feminist jurisprudence and critical race theory were important aspects of critical legal scholarship, but these are also left somewhat aside. Scholarship such as political jurisprudence and law and society are considered as alternative scholarship and therefore play a smaller part in the book. For instance, Stewart Macaulay, a scholar of the law and society movement, is included in the bibliography of CLS and was a founding member of the Conference on the Critical

47 See, e.g., Kennedy 1997 supra n. 23 at 8–11. 48 Duncan Kennedy & Karl E. Klare, A Bibliography of Critical Legal Studies, 94 Yale Law Journal 461– 490 (1984). 49 Id. at 462.

Legal Studies, but in this study he is considered rather as an alternative scholar than a critical scholar because of his stress on empiricism and lack of radical criticism. The case of Finland and Scandinavia is somewhat challenging since there is no list of “Scandinavian critical legal scholarship”. There were, however, critical law journals, such as the Nordic Retfærd or the Finnish Oikeus, which help to define our subject. In order to sift the critical legal scholarship, I have leafed through the published legal literature of the time and selected as critical legal scholarship the literature that adopts a critical stance toward law or legal scholarship in the radical or alternative sense. In sorting out the critical legal literature, my main sources have been, in addition to the critical journals, the most prestigious law reviews of the Nordic Countries, Lakimes, Svensk Juristtidning, Juristen, and Lov og rett. The further division between the core and the periphery of the critical legal scholarship is based on whether the scholar fundamentally criticized some aspect of the law, as well as on the amount of published literature. Therefore, a scholar who did not publish much critical literature may fall into the periphery despite having radical notions. With respect to Scandinavia, all Marxists are considered as critical scholars, whereas that alone does not suffice in Finland. Among Scandinavian legal scholars, Swedish Per Olof Bolding, Göran Elwin, An- ders Fogelklou, Håkan Hydén and Dag Victor, Danish Peter Blume, Ole Krarup, Torben Wanscher and Henrik Zahle, and the Norwegians Carl August Fleischer and Nils Kris- tian Sundby are considered as critical scholars. The post-realists such as Vilhelm Aubert and Torstein Eckhoff, and sociological legal scholars such as Nils Christie, Jørgen Dal- berg-Larsen and Thomas Mathiesen have a place as alternative scholars. Scandinavian Marxist legal scholarship was more encompassing than the names given would lead one to assume,50 but I have focused on the most essential literature because a detailed analysis of Marxist legal scholarship in Scandinavia would have required space beyond the scope of this book. Alternative and critical legal scholarship in the Nordic Countries also includes various smaller “sub-schools”. There was no critical race theory in the Nordic Countries since there was no race problem. Feminist jurisprudence began to arise in Scandinavia in the 1970s, but not on any major scale. In Finland, however, feminist jurisprudence did not emerge until the 1980s. It is difficult to define the critical Finnish legal scholars because of the radical character of the scholarship. Nevertheless, the essential critical legal scholars in Finland are Lars D. Eriksson, Antero Jyränki, and Antti Kivivuori. Though not a legal scholar, Raimo Blom can also be included because of his considerable contribution to the criticism of law. There is a fine, thin line between radicals and not-so-radical critical scholars, and further problems follow from scholars who did not produce much literature. Close to the core in one way or another were Eero Backman, Niklas Bruun, Matti Mik- kola, Olli Mäenpää, Esko Riepula, Juha Tolonen, and Kaarlo Tuori. In addition, sociological jurisprudence and alternative legal scholarship became more common in these years, which expands the list, and many scholars will not receive a detailed analysis.

50 See, e.g., the authors of Juristen og samfundet (Udgivet af Fagkritisk Front ved Aarhus Universitet på Forlaget MODTRYK 1973). See also Elwin & Victor (eds.) 1978, supra n. 24 at 173–184.

Critical criminologists are considered as alternative legal scholars, although they are not to be identified with the critical scholars. As noted, my sources consist almost exclusively of the published legal literature of the time. I have not conducted any interviews during my research. Some of the Finnish critical legal scholars have commented upon my text,51 but besides the comments, I have not relied on any oral information. The reason for this is that the literary sources on the subject are so vast that a historical reconstruction of the events on its basis is possible. Moreover, memory is never a very reliable source when studying events that occurred over three decades ago. The literary sources exist as they were, but the authors may remember the reasons and motives behind the texts somewhat inaccurately. It is true that conversations with the authors may bring important information about the background of the scholars and open up their theories, as James Hackney’s brilliant interviews with the American legal scholars of the latter part of the twentieth century demonstrate.52 Nevertheless, regarding the purposes of this study, all the relevant information can be found in the published materials.

4 The pursuit of legal history

The purpose here is not to write a history of legal scholarship, 1965–1980, but to study one aspect of it; critical legal scholarship. As the Swedish historian Kim Salomon notes, much happened in the 1960s but it is the social turbulence of that decade that is often remembered.53 This study is also on the radical aspect of the 1960s and 1970s, and many interesting aspects regarding the development of legal scholarship are left out. In addition, the critical legal scholarship we are focusing on sprang mostly from the left in political terms. Radicalism and criticism can, of course, be either right or left in political terms, either conservative or reformist,54 but the critical scholarship that interests us was mostly leftist and reformist. In the 1960s, when the ideology of the left became more common within culture and politics, it became a mode of protest, antagonism, and re-

51 I am very grateful to the critical comments that Niklas Bruun, Lars D. Eriksson, Antti Kivivuori, and Kaarlo Tuori made on my manuscript. Their comments helped me to understand the context as well as some of the theoretical details of the critical scholarship. 52 James R. Hackney Jr., Legal Intellectuals in Conversation: Reflections on the Construction of Contem- porary American Legal Theory (New York: New York University Press 2012). Hackney’s book contains a few interviews which are interesting from the perspective of my study. These are especially Duncan Kennedy and Morton Horwitz, as well as Austin Sarat, Catherine Mackinnon and Patricia Williams. These interviews would be especially interesting if writing a personal history of the scholars involved in CLS. However, in a study such as this, they do not provide much further data that cannot be inferred from the published primary and secondary sources. 53 Kim Salomon, Det mytiska 1968, 27–29, in Kjell Å. Modéer & Martin Sunnqvist (eds.), 1968 och därefter: De kritiska rättsteoriernas betydelse för nordisk rättsvetenskap (Københavns Universitet: Muse- um Tusculanums Forlag 2010), 27–42. 54 See, e.g., John A. Andrew III, The Other Side of the Sixties: Young Americans for Freedom and the Rise of Conservative Politics (New Brunswick, New Jersey: Rutgers University Press 1997). Andrew focuses on the “New Right” and the origins of modern conservatism in the postwar decades.

12 formism. Our subject is therefore the leftist, academic, critical scholarship of the 1960s and 1970s. Various aspects have to be taken into account in reconstructing the history of critical legal scholarship. The rise of the criticism has to be situated within the context of society, politics, and the economy, on the one hand, and the tradition of jurisprudence as well as the changes in scholarship, philosophy, and culture on the other. In the pursuit of history, various interpretations are thus possible. For example, ever since Charles Beard argued that the drafters of the Constitution of the United States acted out of selfish interests to protect the capitalist economy,55 the scholars of American constitutional history have had to deal with the question of whether the Constitution was an economic document protecting capitalism or political document establishing a true republican regime.56 The conflict between material interests and intellectual goals therefore lies at the heart of legal history. These factors, of course, usually converge, and it is often difficult to stress one over another. This is particularly true when one considers the history of legal scholarship because it is different than legislation as the latter relates more closely to societal interests. The variety of the historical analyses of CLS can be used as illustrations. For example, CLS has been analyzed against its intellectual context,57 and has been depicted as a post-modern movement.58 It is true that critical legal scholarship was an application of the recent developments in various other disciplines in legal scholarship. The critical science that developed in the first half of the twentieth century became more popular in philosophy and social sciences in the postwar world and, from the 1960s onwards, Marxism was revived as a theoretical basis in various disciplines. The new trends in scholarship often emphasized the context of observation and knowledge. Legal scholarship followed these trends selectively and with a certain lag, but the critical scholarship nonetheless contested the validity of empirical observations and stressed the importance of the structures of the observation. As Marxism entered the universities extensively, legal scholarship followed. Intellectual sources usually influence scholarship, but the scholars do not write in a vacuum. The legal historian G. Edward White notes that both

55 Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Free Press 1965) (1913). 56 Pope McCorkle, The Historian as Intellectual: Charles Beard and the Constitution Reconsidered, 28 American Journal of Legal History 314, 314–319 (1984); Shlomo Slonim, Motives at Philadelphia, 1787: Gordon Wood’s Neo-Beardian Thesis Reexamined, 16 Law and History Review 527, 527–528 (1998); Gordon Wood, “Motives at Philadelphia”: A Comment on Slonim, 16 Law and History Review 553–562 (1998). 57 James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 University of Pennsylvania Law Review 685–780 (1985); Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells, 62 New York University Law Review 429–496 (1987). 58 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York: New York University Press 1995), 1–2. But see Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage (New York: Oxford University Press 2000), 131–132. Feldman argues that CLS was a modernist movement.

13 the rise of the continental theory and the New Left politics affected the formation of CLS.59 The political and social context has to be included as well. The political and social context has been present in various depictions of the history of CLS, which is commonly linked to leftist politics. CLS has been described as a “political location” of leftist legal scholars60 and as a movement of utopian socialism.61 It has often been viewed as an outcome of the radicalism of the 1960s,62 although it is also argued that the circumstances of the 1950s had more influence.63 It is obvious that the radicalism of the 1960s influenced the rise of critical legal scholarship, but the fundamental questions would be, however, what caused the radicalism in the first place, and why these particular scholars undertook that critical enterprise. I cannot delve deeply into these questions, but I will analyze the relationship between the critical legal scholarship and the radical ideas of the 1960s. Indeed, critical legal scholarship was in part a response to the social turmoil. Its methods and purposes aimed to criticize the established norms and institutions of society. By applying the language of social criticism of the time, critical legal scholars challenged and ridiculed the authorities. In addition, as the labor movement gained a stronger foothold in society and the postwar economic growth descended into crisis, critical scholars explored the doctrines of law, pointing out the conflict between labor and capital and how the apparently neutral law protected the interests of capitalism. In general, just as the “other side” of society was recognized and pronounced more openly in the 1960s, critical legal scholars contested the power hierarchies and sided with the underdog. It is obvious that critical scholarship had political connections, but it should not be reduced simply to political jurisprudence. Many of the impulses of scholarship come from outside academia, but the literature is produced within academia. In order not to reduce critical scholarship to its political assumptions, it has to be seen within the field in which the critical discourse took place. The academic structures in which this happened are thus also important. CLS was mostly an academic movement.64 Critical scholars contested the prevailing forms of scholarship and education and sought to replace them with their own methods. As noted, student radicalism was a major aspect of the social turbulence of the 1960s. Critical scholars were rarely student radicals, but they represented the junior faculty, which ob-

59 G. Edward White, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 South- western Law Journal 819, 837–838 (1987). 60 Mark Tushnet, Critical Legal Studies: A Political History, 100 Yale Law Journal 1515, 1516 (1991). 61 Michael A. Foley, Critical Legal Studies: New Wave Utopian Socialism, 91 Dickinson Law Review 467–496 (1987). 62 Guyora Binder, On Critical Legal Studies as Guerrilla Warfare, 76 Georgetown Law Journal 1, 23 (1987); John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 Stanford Law Review 391, 406–407 (1984). 63 Tushnet 1991, supra n. 60 at 1535. 64 James Boyle, Introduction, xiv, in James Boyle (ed.), Critical Legal Studies (Aldershot: Dartmouth 1994), xiii–liii.

14 viously sympathized with the radical students and, for one reason or another, identified with the radical cause.65 As an academic movement, CLS has been depicted as “an episode in the history of American legal education”66 and as a radical academic movement67 or simply as radicalism.68 As Bourdieu argued, academic discourses are parts of struggles for academic capital, which determines the authority and respectability of theories and scholars. Critical scholarship is thus often a struggle for a new theory and academic power.69 Critical legal scholarship can also be seen as part of an academic power struggle, the pursuit of a new legal theory replacing the traditional paradigm and changing the generational structure of the academic elite, as a struggle of the junior faculty against the old, competing for university positions and governance, and methods of education, scholarship, and theory. Critical legal scholarship was an all-encompassing method of grasping and criticizing society, scholarship, and academia. Seen in this way, it was more an attack on the academic tradition and establishment than on the society and politics, and the critical scholars sought more to acquire academic reputation than legal or social change. The academic power struggle is, however, only a part of the story, even if a considerable part, and critical legal scholarship should not be reduced to it either. Reconstructing the history of critical legal scholarship of the 1960s and 1970s involves several aspects. One problem in this regard is the search for rationality, or as Albert Camus wrote in 1951, “it is the desperate appeal for order that rings through this insane universe.”70 Thus, to ignore the irrational aspects simplifies the view. Critical legal scholarship was not a group of scholars with patterned behavior, driven by the same motives and seeking the same goal. They often shared a political viewpoint but that alone does not explain critical scholarship. The subject then needs to be understood in a context which can include all the relevant aspects. A problem of legal history is that it often sees behavior as patterned and explains situations in abstract and general terms. Of course, people often act upon their immediate material needs and their behavior is patterned, but this is not always the case. People can see that there is something wrong with the world and act altruistically without having any direct interest in the issue. People can do something simply because they think it is right, or cool, and sometimes their behavior is inexplicable even to themselves.71 The

65 See Duncan Kennedy in Hackney 2002, supra n. 52 at 28–29. 66 Robert Gordon, Critical Legal Studies as a Teaching Method, 35 Loyola Law Review 383, 385 (1989). 67 Albert P. Cardarelli & Stephen C. Hicks, Radicalism in Law and Criminology: A Retrospective View of Critical Legal Studies and Radical Criminology, 84 Journal of Criminal Law & Criminology 502–553 (1993). 68 Johnson 1984, supra n. 25. 69 Pierre Bourdieu, Homo Academicus (Stanford, California: Stanford University Press 1988), esp. at xvii–xix, 6–35, 61–62, 84–127. 70 Albert Camus, The Rebel (London: Penguin Books 2010), 72 (1951). 71 Take a look, for instance, at the words of J.D. Salinger. “A lot of people, especially this one psychoana- lyst guy they have here, keeps asking me if I’m going to apply myself when I go back to school next September. It’s such a stupid question, in my opinion. I mean how do you know what you’re going to do till you do it. The answer is, you don’t. I think I am, but how do I know? I swear it’s a stupid question.” (J.D: Salinger, Catcher in the Rye (Harmondsworth: Penguin Books 1958), 220 (1951) (Italics original).

15 simple act of doing can be the goal in itself without any concrete interests or goals, and the interest a person has might even be the image the other acquires of the person. The ultimate motives of the action are then self-realization and recognition in the eyes of the other. A scholar might thus become a critical scholar for various reasons. For instance, one may develop an alternative theory because one realizes that traditional scholarship is simply untenable or that it favors some interests at the expense of others, or one may simply want to create a new theory. A scholar might became a critical scholar because of political biases, because of the literature one reads, or out of the feeling that there is something wrong with the world and the traditional scholarship is partially to blame. One can choose the literature one reads because of one’s biases, or one’s interests may follow the literature one reads. One may even feel offended in the first year at law school by a professor and become a critical scholar because of a yearning for revenge against the tradition. We can never tell what the reason is for a particular scholar unless we psychoanalyze each and every scholar we are dealing with individually, and even then we could only have more or less convincing hypotheses. Generalization is thus necessary, but we should find a point of reference that could summarize most of the relevant factors. The 1960s witnessed many things, but one of the most remarkable was the gulf between world views that caused a completely new way of perceiving reality. Robert Pirsig aptly describes this gulf writing in 1974 that “in recent times we have seen a huge split develop between a classic culture and a romantic counterculture ─ two worlds growingly alienated and hateful toward each other with everyone wondering if it will always be this way, a house divided against itself.”72 It was this split between the cultures, a split that also manifested itself within the tradition of legal scholarship, which was at the heart of critical legal scholarship, because the crucial issue was the difference in perceiving the law and scholarship. If the concept of “culture” is used to mean “the network or totality of attitudes, values and practices of a particular group of human beings”,73 then critical legal scholarship was an academic counter-culture rivaling the traditional culture. Since the split between the traditional and critical scholarship occurred in the academic field, it could be viewed as a battle for academic capital. As Bourdieu writes, “the university field is, like any other field, the locus of a struggle to determine the conditions and the criteria of legitimate membership and legitimate hierarchy, that is, to determine which properties are pertinent, effective and liable to function as capital so as to generate the specific profits guaranteed by the field.”74 However, as Faulkner wrote, “no battle is ever won… They are not even fought. The field only reveals to man his own folly and despair, and victory is an illusion of philosophers and fools.”75 In the universi-

The quotation clarifies the fact that human behavior is not always rational and cannot be predicted in simple terms. Behavior can sometimes be inexplicable even to the actor. 72 Robert M. Pirsig, Zen and the Art of Motorcycle Maintenance (New York: William Morrow 1974), 75. 73 Marwick 1998, supra n. 28 at 11. (Inverted commas omitted.) 74 Bourdieu 1988, supra n. 69 at 11. 75 William Faulkner, The Sound and the Fury (London: Chatto and Windus 1931), 74.

16 ty the scholar faces his or her “folly and despair” and is forced to find a way to get along. Critical scholarship was not a calculated plot or conspiracy against the traditional scholarship, but an outcome of the changes in society, culture, and intellectual life, and of the drive of the scholars identifying themselves within the changed circumstances. In a sense, critical legal scholars were rebels against the system of law and legal scholarship, pursuing authenticity and self-realization. The final problem concerns the placing of the historical reconstruction into the comparison. In his study on the 1960s student radicalism in America, Seymour Lipset writes that “[a]ny effort to interpret the changing political behavior of American students in recent years is subject to the difficulty that it is dealing with a local aspect of a worldwide phenomenon.”76 This is a problem I am facing too, because the rise of critical legal scholarship was a common phenomenon in the western world in the 1960s and 1970s, meaning that I am also dealing with particular aspects of a universal phenomenon. In a comparative analysis, the historical reconstruction of critical legal scholarship has to be situated in the various contexts. The comprehensive perspective and the com- parisons that follow will help us to understand the essence of the critical scholarship.

5 Critical legal scholarship of the 1960s and 1970s in legal history

As we saw, CLS has been subjected to a vast amount of literature. However, it deals mainly with its theory, and the studies on the history of the movement are rather fragmentary and partial accounts. I will thus provide a comprehensive account of the history of CLS as well as of critical legal scholarship in the Nordic Countries. At the moment, the most comprehensive account of the historical origins of CLS seems to be Neil Duxbury’s,77 who has analyzed the new left and the scholarly origins of the movement. In addition, to mention a few, there is a detailed account of the people and their relationships in the founding of the Conference on Critical Legal Studies,78 various studies on the intellectual origins of the movement,79 and a sketch for a political history.80 The development of the movement has also been explained against the context of the law

76 Seymour Martin Lipset, Rebellion in the University: A History of Student Activism in America (Lon- don: Routledge & Kegan Paul 1972), 3. (Footnote omitted.) 77 Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press 1995), 421–509. 78 Schlegel 1984, supra n. 62. 79 Mark Tushnet, Critical Legal Studies: An Introduction to its Origins and Underpinnings, 36 Journal of Legal Education 505–517 (1986); G. Edward White, The Inevitability of Critical Legal Studies, 36 Stan- ford Law Review 649–672 (1984); White 1987, supra n. 59; Stuart J. Russell, The Critical Legal Studies Challenge to Contemporary Mainstream Legal Philosophy, 18 Ottawa Law Review 1–24 (1986). A comprehensive analysis on the theoretical basis of CLS literature is David Kennedy, Critical Theory, Struc- turalism and Contemporary Critical Scholarship, 21 New England Law Review 209–289 (1985). Theoret- ical aspects of some CLS literature are analyzed in detail in Donald F. Brosnan, Serious But Not Critical, 60 Southern California Law Review 259–396 (1987). 80 Tushnet 1991, supra n. 60.

17 school of the 1960s,81 the rise of the leftist faculty in the 1970s,82 as a radical academic enterprise,83 in its epistemological context,84 and as a movement toward a new construction of reason in law.85 Important preliminary studies on the institutional86 and jurispru- dential87 context of the development of CLS have also appeared. There are also several general introductions to CLS theory which often take a stand on the historical development of the movement in one way or another.88 In addition to the reconstruction of the history of CLS, this study is a synthesis of the previous literature. With respect to Scandinavia and Finland, the situation is quite different because there seem to be relatively few studies on the subject. A valuable collection of autobio- graphical essays by the scholars who participated in the critical scholarship has been published,89 but it seems that no comprehensive study has been done. There is a short but informative introduction to Scandinavian Marxist legal scholarship,90 a good account of the theories of Danish critical legal scholarship, without a historical analysis however,91 and general introductions to the critical legal scholarship92 and the legal science of the time.93 The Finnish legal culture of the 1960s and 1970s has been thorough-

81 Binder 1987, supra n. 62. 82 Nathan Glazer, Marxism and the Law School: A Nonlegal Perspective, 8 Harvard Journal of Law and Public Policy 249–253 (1985); Maurice J. Holland, A Hurried Perspective on the Critical Legal Studies Movement: The Marx Brothers Assault the Citadel, 8 Harvard Journal of Law and Public Policy 239–247 (1985). 83 Cardarelli & Hicks 1993, supra n. 67. 84 Williams 1987, supra n. 57. 85 Boyle 1985, supra n. 57. 86 Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: The Univer- sity of North Carolina Press 2005), 281–291. 87 Kalman 1996, supra n. 22 at 82–88. 88 As will be seen later, there is no theory of CLS, but rather a range of various theories. There is a tremendous amount of literature on CLS. The most comprehensive account of the theory of CLS is Kelman 1987, supra n. 23, but its interpretation of the theory has been contested. (Richard Michael Fischl, The Question that Killed Critical Legal Studies, 17 Law & Social Inquiry 779–820 (1992)). A good one is also Minda 1995, supra n. 58 at 106–127, who links CLS to the postmodern tradition of late twentieth-century scholarship. See also Boyle 1994 supra n. 64. For critical accounts on CLS, see, e.g., Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, New Jersey: Princeton University Press 1990); Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review 413– 464 (1984); Johnson 1984, supra n. 25; Foley 1987 supra n. 61. For an attempt to resurrect CLS from its criticism, see, e.g., Richard Michael Fischl, Some Realism About Critical Legal Studies, 41 University of Miami Law Review 505–532 (1987). For recent attempts to resuscitate CLS see E. Dana Neacsu, CLS Stands for Critical Legal Studies, if Anyone Remembers, 8 Journal of Law and Policy 415–453 (2000); Motoaki Funakoshi, Taking Duncan Kennedy Seriously: Ironical Liberal Legalism, 15 Widener Law Review 231–287 (2009). 89 Modéer & Sunnqvist (eds.) 2010, supra n. 53. 90 Elwin & Victor (eds.) 1978, supra n. 24 at 173–184. 91 Jørgen Dalberg-Larsen, Dansk retsfilosofi: Udviklingslinjer og portrætter (København: Jurist- og Økonomforbundets forlag 2006), 85–183. 92 See, e.g., Jørgen Dalberg-Larsen, Four Phases in the Development of Modern Legal Science, 23 Scan- dinavian Studies in Law 77, 97–101 (1979); Rune Slagstad, Norwegian Legal Realism Since 1945, 35 Scandinavian Studies in Law 215–233 (1991). See also Jørgen Dalberg-Larsen, Retsvidenskab som sam- fundvidenskaben: Et retsteoretisk tema i historisk og aktuel belysning (København: Juristforbundets forlag 1977), 506–545. 93 See, e.g., Stig Strömholm (ed.), Svensk rättsvetenskap, 1947–1997 (Stockholm: Nordstedts juridik 1997).

18 ly examined,94 and there are fragmentary notions about the critical legal scholarship of the 1960s and 1970s in a general introduction to the Finnish legal science of the twentieth century.95 There are also several shorter comments on the debates on the nature and functions of legal scholarship in the 1960s and 1970s,96 but a larger examination is lacking. Moreover, the characterizing feature of all of the literature is that it has been written by scholars with personal experiences of the time. A study from an outsider’s perspective is required to explore the critical scholarship without any personal biases. Whereas the history of CLS needs a synthesis, the history of Finnish and Scandinavian critical legal scholarship needs a complete reconstruction. As to the question of the historical analysis, my purposes are twofold. Regarding the United States, I will analyze and evaluate the previous studies on the history of CLS in order to sort out whether they can be considered plausible. With respect to the Nordic Countries, on the other hand, I will conduct an authentic historical reconstruction and compare it to the analysis of CLS. The vast amount of literature on CLS seems to be based more on the personal intuition of the authors than a historical interpretation of the sources, and, furthermore, the writers always stress one factor over the others in explaining the rise of the movement. I, on the other hand, will conduct an extensive analysis of the original literature in order to provide a historical interpretation. I will also show that the best way to understand critical legal scholarship is to see it as a cultural movement, and not to reduce it to one single factor. It is one thing to have an opinion about something, whether based on personal experience or intuition, but quite another to conduct thorough and authentic research on it. The same applies to the Nordic critical legal scholarship, but here the question is more about the fact that there are no previous studies. This book thus lays the foundation for historical analysis of critical scholarship. A purpose of this book is to examine whether the previous literature on CLS is correct and whether the several intuitions about the critical legal scholarship in the Nordic Countries actually hold true. In addition, there is no comparative history between critical legal scholarship in the United States and Scandinavia, although there are few short articles focusing mostly on theoretical aspects and the scholarship of the 1980s.97 Therefore, I will also create a

94 Jukka Kekkonen, Suomen oikeuskulttuurin suuri linja 1898–1998 (Helsinki: Suomalainen lakimiesyhdistys 1998), 100–126. 95 See Urpo Kangas (ed.), Oikeustiede Suomessa 1900─2000 (Juva: Werner Söderström Lakitieto 1998). See also Lars D. Eriksson, Mina Metoder, in Juha Häyhä (ed.), Minun metodini (Porvoo: Werner Söder- ström Lakitieto 1997), 57–73; Antero Jyränki, Toiset työt, toiset metodit, in Häyhä 1997 id. at 74–89. 96 A good one is Jaakko Husa, Oikeustieteen suuresta tieteellisyyskeskustelusta: Julkisoikeudellinen nä- kökulma, Oikeus 1992, 367–380, which examines the various arguments on the paradigm of Finnish legal scholarship in 1960s and 1970s and provides a sketchy analysis for the context. The debates are also analyzed in various jurisprudential doctoral dissertations of the 1970s. See, e.g., Eero Backman, Rikoslaki ja yhteiskunta I: Teoreettinen erittely rikosoikeuden tieteenkäsityksistä 1800-luvulla ja sen konkretisointi moraalin, uskonnon ja rikoslain suhteisiin Suomessa vuosina 1894─1917 (Helsinki: Suomalainen lakimiesyhdistys 1976), 1–14. See also the chapters on relevant scholars in Juha Pöyhönen (ed.), Suomalaista oikeusteoriaa I–II (Helsinki: Yleisen oikeustieteen laitoksen julkaisuja 1977–1978). 97 Juha Pöyhönen, The Critical Legal Studies Movement ─ yhdysvaltalaista vaihtoehtoista lainoppia, Oikeus 1984, 90─106; Martti Koskenniemi, Superliberalismin oikeusteoriaa, Oikeus 1987, 303─307;

19 comparative history through the reconstruction of the historical development of critical legal scholarship in the United States, Scandinavia, and Finland in the 1960s and 1970s. The comparative analysis will provide fruitful insights into the nuances of and the similarities and differences between the movements. The historiography of the 1960s has been placed under revision in the twenty-first century. Various studies have, for instance, pointed out that the civil rights movements were not systematic strategies aiming at civil rights and that there were activists outside the major organizations.98 Regarding the New Left, the revision argues that the radicalism of the 1960s should not be reduced to the New Left because the protest movement was diversified and broad phenomenon consisting of various groups.99 In a certain sense, this study is also a revision, because the point is to show that even if the 1960s was a major break from the tradition, it did not come out of nothing but was rather a culmination of a long process after the war. The dynamics of change intensified considerably in the 1960s. Critical legal scholarship arose out of a long process in which the 1960s and 1970s were the most significant decades, and it too was a diversified phenomenon. For example, CLS radicalized the previous critical notions partly because civil rights activism was frustrated, the critical scientific consciousness increased, and the scholars wanted to create a new critical legal theory. A further problem confronting any study focusing on relatively recent occurrences is that of distance. The 1960s was relatively short time ago, and it is therefore not easy to find the right distance from the subject. Moreover, there are people among us who experienced those times. The history of the critical legal scholarship of the 1960s and 1970s is largely written by people with personal experience of the issue, and who will often be skeptical about the re-interpretations of that decade.100 In aiming at a historical reconstruction, one has to bear in mind the brief time that has elapsed since the 1960s, the presence of the people who made the decade, and the presence of the ideas emanating from those days. It is easy to glorify the sixties as a golden age in which the young challenged the establishment and created the modern world, but it is just as easy to picture the radicalism as a pointless rebellion of privileged youngsters with nothing better to do than to rebel just for the sake of it.101 The sixties were a complex decade and it should be treated neither with nostalgia nor the criticism of hindsight. Only a comprehensive analysis that includes a variety of perspectives will do justice to the subject. By

Kaarlo Tuori, Vaihtoehto vai kritiikki, suppea vai laajennettu doktriini? in Ari Hirvonen & Kaarlo Tuori (eds.), Oikeus, kieli ja kritiikki (Helsinki: Helsingin yliopiston julkisoikeuden laitoksen julkaisuja 1990), 49 97. 98 Laura Kalman, Introduction, 26 Law and History Review 319, 320–322 (2008). 99 John McMillian, “You Didn’t Have to Be There”: Revisiting the New Left Consensus, 6, in McMillian and Buhle (eds.) 2003, supra n. 5 at 1–8. On historicizing the radicalism of the 1960s in Europe, see Axel Schildt and Detlef Siegfried (eds.), Between Marx and Coca-Cola: Youth Cultures in Changing European Societies, 1960─1980 (New York: Berghahn Books 2006). 100 Kevin Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism, 1945– 1970 (University Park, Pennsylvania: The Pennsylvania State University Press 2002), 4; Tuominen 1997, supra n. 5 at 3. 101 See, e.g., Marwick 1998, supra n. 28 at 3–4, 8–10.

20 situating critical legal scholarship within a detailed and comprehensive historical analysis, we can obtain a historical perception of it and understand it in a proper context. Even if I do not examine its theoretical merits, the historical reconstruction will provide a more detailed and nuanced understanding of the critical legal scholarship in its early phase and help us to comprehend the underpinnings and purposes of the critical theory.102 The hypotheses of this book are as follows. Critical legal scholarship of the 1960s and 1970s is best understood as a cultural phenomenon that comprehends all of the aspects of the time. It should not be reduced to a single factor, such as political activism, scholarly renewal, or academic radicalism. Critical legal scholarship was all of these combined, a cultural phenomenon that drew all these elements in, the most important factor being different for every scholar. The epistemological difference between the traditional view and the critical view was, however, the one aspect that covered all the others and was common to all scholars. The basic premises of critical legal scholarship were the same in the United States as in the Nordic Countries, but the differences in theories and argumentation varied depending on the local social, political, and scholarly circumstances. The approaches to legal problems were nonetheless the same. Common aspects in all of the countries studied here were the rise of leftist thought, the focus on the rights of the citizen, criticism of the social and economic order, the expansion of the methods of legal scholarship, the social and political orientation of scholarship, and the division of the academy into the traditional and the critical blocs. All these were apparent in the rise of the critical legal scholarship of the 1960s. At the beginning, critical legal scholarship was socially oriented jurisprudence that endeavored to reveal social problems and provide arguments for reform. Later it transformed into a philosophical criticism of legal scholarship, law, and society. The political aspect, the pursuit of change in society, never vanished, always remaining in the deep structures of the critical scholarship. The biggest differences were that the critical legal scholarship of the 1970s in the United States kept most distance from the sociological jurisprudence of the 1960s and turned more toward a philosophical criticism of doctrine. In the Nordic Countries, critical legal scholarship remained closer to sociological and empirical jurisprudence than in the United States, even if there also the 1970s marked a turn toward a more theoretical

102 Although this is not a book on legal theory, the historical analysis will also illuminate the theoretical aspects and thus help to understand the theory of critical jurisprudence. This is also needed since beyond the experts on legal theory, the general image of CLS in Finland seems to be somewhat simplified. See, e.g., Anne Alvesalo, Critical Legal Studies: Kriittinen lähestymistapa oikeuteen (Helsinki: Kauppakaari Oy ─ Lakimiesliiton kustannus 1997). The book is the most comprehensive analysis of CLS in Finnish thus far, providing a good introduction to the topic. However, because of its heavy reliance on secondary sources and slight use of primary sources, it gives a rather simple and caricaturized image of the movement, merely repeating what have been said in other studies and lacking an original perspective. A Finn- ish reader may thus begin with this but is advised to look for further studies as well. My book will hope- fully encourage more Finnish scholars to familiarize themselves with the original literature of CLS in order to understand it as an alternative theory of law. On the other hand, critical legal scholarship in the Nordic Countries lacks a systematic presentation, and my historical account will provide a useful insight into the theory as well.

21 criticism of law. And during the 1970s, scholars began more explicitly to explore the possibilities of Marxism in legal scholarship. Sociology of law eventually diverged into an individual discipline. The critical legal scholarship in Finland was closest to political radicalism.

6 The structure of the study

The time frame of this study is from the mid-1960s till the end of the 1970s. I will not examine the critical legal scholarship that preceded the radical scholarship emerging in the latter part of the 1960s or the development of critical and alternative legal scholarship in the 1980s in any detail. A study that dealt with the alternative legal scholarship of the United States, Finland, and Scandinavia from the end of the Second World War to the beginning of the twenty-first century would require volumes. Thus, in order to keep the book a tolerable length I will have to be strict with the time exclusions. The structure of the study is as follows. Before going into the actual study, I shall take a short and sketchy look at the history of legal thought in the United States and the Nordic Countries because an understanding of this helps the analysis. I shall also take a quick look at the social, cultural, and scientific development of the postwar world in order to understand the historical context of the development of critical legal scholarship. In chapters three, four, and five, the main chapters of the book, I shall reconstruct the development of critical legal scholarship in the United States, Scandinavia, and Fin- land respectively. The three main chapters are rather individual because this is the easi- est way for the reader to understand the history of the movements. The chapters can also be used separately as guides to the histories of the critical movements in these countries. First, in chapter three, I will examine the history of CLS, exploring the social and legal turbulence of the 1960s and analyzing the law school context in which the critical mood was developed. We shall see how students unsatisfied with legal education, growing up in a culturally, scientifically, and socially unstable atmosphere, adopted an alternative perspective on law and, by applying various theories, elaborated a critical view that eventually came to be known as the critical legal studies movement. The movement radicalized the preceding criticism, established a distance from the empirical underpinnings of alternative legal scholarship, and developed into a complete philosophical criticism of law. The examination of the history of CLS and the analysis of the literature on the subject will function as a basis for the historical reconstruction of critical legal scholarship in the Nordic Countries. Thus, after reviewing its history, I will examine the critical legal scholarship in the Nordic Countries. In chapter four, I will examine the development of Scandinavian critical legal scholarship. We shall see that the postwar legal world inherited a methodological eclecticism and a sociological view of legal scholarship, and that these were blended with a new sociological approach that was very influ-

22 ential in criminology. The 1960s thus witnessed a rise in sociology of law, critical criminology, and eventually critical legal scholarship, which developed into Marxist legal scholarship in the 1970s. Chapter four is less detailed and more general than chapters three and five. Third, in chapter five, I explore the development of the Finnish critical legal scholarship. We will see that Finnish legal scholarship in general was more traditional and less realist than in Scandinavia, but alternative views became more common in the 1960s. Hence, Finland in the late 1960s witnessed a radical attack on the traditional legal scholarship, an attack that was more radical than in the other countries at the same time. In Finland, too, sociological jurisprudence and critical criminology in particular, as well as a critical discourse on the purposes and functions of legal scholarship and education emerged in the 1960s. In the 1970s, the theoretical basis of critical scholarship became refined and the critical movement took more organized forms. By the end of the decade, however, the radical tone of the criticism was attenuated. Fourth and finally, chapter six will compare the development of critical legal scholarship of the countries concerned and summarize and conclude the study. The comparative analysis is rather general and abstract, but it provides productive insights into the “essence” of critical legal scholarship, which the theoretical aspect will also illuminate. It will be shown below that critical legal scholarship of the 1960s and 1970s was a complex phenomenon consisting of social, political, cultural, scientific, academic, and legal factors; it was an effort of scholars realizing themselves, their scholarship, and their position within it at the intersection between these fields, and doing their best to achieve something in life. Critical legal scholarship was therefore not simply a reflection of the social changes of the sixties but also a philosophical and cultural movement and a form of academic criticism and antagonism. Some scholars later gave up the critical enterprise whereas others continued, the reasons for this being just as diversified as the reasons for adopting the critical attitude in the first place. The end of the story, however, goes beyond the scope of this book and will not be dealt with in any detail. Never- theless, there was no “rise and fall” of critical legal scholarship, even if it lost much of its popularity in the eighties and nineties, earlier in Scandinavia than in the United States. Many of the themes of the critical legal scholarship have continued to our time, even if not on a major scale. In a sense, critical legal scholarship became domesticated and absorbed into the traditional scholarship, and has become a part of the tradition. The historical reconstruction aims at understanding the rise and the substance of critical legal scholarship without evaluating its significance. Thus, words such as reformist, progressive, conservative, and traditional bear no reference to any value except those in the eye of the beholder. Reformist and progressive simply mean that one prefers change to tradition and, accordingly, to call someone traditional or conservative refers only to the preference for tradition, nothing more. Nevertheless, since books do belong to the reader as much as they belong to the author, the pages that follow are also meant to provoke, stimulate the reader to think and, despite whether he or she agrees or disagrees with them, to encourage a search for the truth. As to whether the “truth” is an

23 objective or rather a socially constructed concept103 is not a concern of this study. In order to do justice to the subject, however, one has to aim at the truth.

103 On the problem of “truth” as an objective concept or something relating to power, see Michel Fou- cault, Truth and Power, 67–75, in Paul Rabinow (ed.), The Foucault Reader (New York: Vintage Books 2010), 51–75.

II Background

1 Introduction

In this chapter we shall take a look at the historical origins of the critical legal scholarship of the 1960s and 1970s. I will provide an outline of the development of legal thought and society in the United States and the Nordic Countries. As will become obvious later, the critical legal scholarship of the 1960s and 1970s and the differences between the movements in the different countries have to be understood in the context of the history of scholarship, culture, and society. Because the critical legal scholarship of the 1960s originated within a historical process, we need to understand the forces of change in scholarship in order to understand the dynamics within which the critical scholars grew up and acquired their scholarly identity. The chapter runs as follows. In the second section I will briefly review the history of American legal thought, and in the third section I shall provide an outline of the history of Scandinavian jurisprudence. In the last section, I will take a brief look at the social, cultural, and scientific currents that followed the aftermath of the Second World War. These years witnessed many changes, when new forms of scholarship were developed and older forms elaborated. The development of the New Left changed the political arena, and the development of the youth culture and counter-culture changed culture and society. The short sections below will provide a general understanding of the context of the world of the 1960s so that we can begin the more detailed account of critical legal scholarship. The descriptions of the histories of legal thought that follow are inevitably sketchy, general, and rather conventional. Although there were no pendulum swings in legal thought,1 the focus will be on the changes, as well as on the general “schools”, even if the jurisprudential theories represented various scholars with differences in opinion and approach.2 The characterizations of the main the trends simply help us to understand the development of the legal thought.

1 Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press 1995), 2. 2 N.E.H. Hull, Networks & Bricolage: A Prolegomenon to a History of Twentieth Century American Academic Jurisprudence, 35 American Journal of Legal History 307, 308–310 (1991). Hull points out that categorizing may distort our images of the theories and, furthermore, that scholars often put old ideas to new uses.

2 A history of legal thought in the United States

American law originates from European law, mostly from the English common law that was adapted to the colonies during the seventeenth and eighteenth centuries. The intellectual background of legal thought followed the natural law theory and enlightenment philosophy, which gained their most explicit expression in the revolutionary ardor of the late eighteenth century. The backbone of American legal thought was thus engraved in the Declaration of Independence, the Constitution, and the political writings of the founding fathers.3 The early nineteenth century was a time of growing enterprise and the rise of capitalism, which were reflected in the changes in law. As the new republic took its first steps as an independent nation, the common law was Americanized and adapted to the new constitutional order, and the modern legal doctrines and the legal profession were established.4 Legal thought began to take a modern shape in the late nineteenth century. This was in general a time of massive economic expansion, urbanization, and labor union activity.5 It was also the time of legal formalism, which involved both the academic scholarly tradition of conceptualizing law and the laissez faire constitutionalism of the judiciary.6 Academic legal scholarship began in the 1870s when the dean of Harvard Law School, C.C. Langdell, developed the case method to suit the purposes of legal education.7 Formalism in this sense meant a scientific conception of law. Langdell’s purpose was to create a teaching method for academic legal education. He elaborated a conception of law as a scientific discipline which constructed fundamental legal principles from which neutral and logical solutions to particular cases could be derived through Socratic logic.8 The formalism of the case method instilled the modern notion of neutrality and rationality into American legal thought. Even if the formalists of the late nineteenth century did not consider law simply as a comprehensive system of ab-

3 G. Edward White, Law in American History, Volume 1: From the Colonial Years Through the Civil War (New York: Oxford University Press 2012), 16–108; Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage (New York: Oxford University Press 2000), 49–50. 4 Lawrence M. Friedman, A History of American Law (Third Edition, New York: Touchstone 2005), 105–249. 5 Id. at 254. 6 Duxbury 1995, supra n. 1 at 11. American late nineteenth-century jurisprudence has been called “formalism”, “classical legal thought”, “legal classicism”, and “legal orthodoxy”. (William Wiececk, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press 1998), 3). I have decided to use the word formalism despite its negative connotations. On the various uses of the word “formalism”, see Frederick Schauer, Formalism, 97 Yale Law Journal 509–548 (1988). Laissez faire constitutionalism means that the courts, particularly the U.S. Supreme Court, invalidated legislation that constrained the liberty of private persons. 7 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York: New York University Press 1995), 13. 8 Duxbury 1995, supra n. 1 at 15–25; Minda 1995, supra n. 7 at 13–16: Wiecek 1998, supra n. 6 at 79– 122; Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: The University of North Carolina Press 1983), 52–54; Feldman 2000, supra n. 3 at 91–94.

26 stract principles from which one could logically deduce the correct solution to every case in an absolutely neutral and rational way,9 they significantly strengthened the idea of legal reasoning as logic rather than rhetoric, which has since dominated American legal thought. The formalism of the judiciary meant a rigid judicial review of the constitutionality of legislation in order to preserve the fundamental principles of the Constitution. The main trend was to protect the freedom, liberty, and equality of the citizen, and thus to minimize all kinds of redistribution. The courts also sought to maintain a strict division between the state powers, as well as between the federal and the state governments.10 The formalist legal reasoning and the idea of the fundamental legal concepts converged in the laissez faire practice of the courts, abandoning instrumental reasoning and approaching legal problems as questions of fundamental principles and categories. Law and politics thus became detached both at the practical and the scholarly level. The basis of American legal thought and scholarship was established in the late nineteenth century. Whether formalism originated in the desire to create an academic science of law,11 the efforts of the courts to protect and preserve the economic and political ideals,12 the morals and ideologies of the legal profession,13 or even the ante-bellum slavery cases,14 it was a modern way to understand and teach law, providing a rational basis for legal reasoning that conformed to the values and ideals of society. Moreover, it gave a permanent characteristic to American legal thought. As Robert Stevens has noted, “[t]he lasting influence of the case method was to transfer the basis of American legal education from substance to procedure and to make the focus of American legal scholarship ─ or at least legal theory ─ increasingly one of process rather than doctrine.”15 Case method has persisted as the dominant teaching method to our days, and it has molded American legal thought extensively. Whereas the modern doctrines of

9 Brian Tamanaha has recently argued that the formalists held many realist notions. (Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Priceton: Princeton University Press 2010).) Although many of his arguments are convincing, he seems to put too much emphasis on the details and forget the big picture. The formalists of the nineteenth century were not formalist in the extreme sense but they did realize the fact that courts make law and legal reasoning is not purely logic. However, they sought to depict it in as rational terms as possible, and thus push the balance within legal reasoning in a more formal direction. Thus, even if Tamanaha’s book is excellent in clarifying the formalist-realist divide, he seems to have a rather narrow conception of realism in focusing simply on the aspects of adjudication, apparently giving too much weight to details without placing them in their historical context, and he seems to have a narrow conception of “balanced realism”, because he seems to ignore the fact that one can be more realist or formalist in balanced realism depending on how much weight one puts on either the process or the substance of adjudication. 10 Michael Les Benedict, Laissez Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Lais- sez Faire Constitutionalism, 3 Law and History Review 293, 327–331 (1985); Matthew J. Lindsay, In Search of “Laissez Faire Constitutionalism”, 123 Harvard Law Review Forum 55, 70–77 (2010). 11 Thomas C. Grey, Langdell’s Orthodoxy, 45 University of Pittsburgh Law Review 1–45 (1983). 12 Benedict 1985, supra n. 10. 13 Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (DeKalb, Illinois: Northern Illinois University Press 2004). 14 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press 1975). 15 Stevens 1983, supra n. 8 at 56.

American law were basically created during the first part of the nineteenth century, the basis of modern legal thought and jurisprudence were created during the latter half. As the nation grew wealthier and the working class and other non-elite groups of society became stronger, the old order of the previous century faced a serious threat. This was the beginning of the progressive era. The conflicts between the old and the new ways of thinking were seen in the rise of sociological jurisprudence and in the criticism of certain Supreme Court decisions that were seen to represent the unrealistic formalism of the nineteenth century,16 the most notorious decision being Lochner v. New York.17 In this case, the court invalidated a maximum hours law for bakery workers because it violated the liberty of contract and because bakery work was not considered to be in need of public protection. A central argument of the sociological jurisprudence of the early twentieth century, as articulated by Roscoe Pound, was that law was a social instrument and hence was to be studied and taught accordingly.18 Since Pound drew heavily on German jurisprudence,19 his criticism probably followed the critical thought of the time more than the legal reality, but it nevertheless reflected the social, political, and legal tensions. A broader attack on the traditional legal scholarship and law emerged after the First World War. The 1920s produced a major economic growth. Legal scholars responded to the changed circumstances by encouraging empirical legal research, particularly in the law schools of Columbia and Yale. This empirical research led to the emergence of the jurisprudential school, or mood as Neil Duxbury calls it, which was to be known as American legal realism.20 Legal realism was another effort to attack the traditional paradigm and initiate a program of legal scholarship that would bring law and legal research closer to social reality. It was not a uniform theory, but an approach to law including various aspects. At the heart of realism was criticism of traditional jurisprudence and adjudication. The realists argued that the notion of adjudication as neutral, rational, and apolitical was unfounded because law was political from the beginning and, furthermore, the biases of the judges had a considerable impact on judicial decision-making. Thus, they concluded, there was no legal certainty because rules could be

16 G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 Virginia Law Review 999, 1000–1012 (1972). On the jurisprudence and the Supreme Court in the early twentieth-century America in general, see Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 North Carolina Law Review 1– 111 (1991); Paul Kens, The Source of a Myth: Police Powers of the States and Laissez Faire Constitu- tionalism, 1900–1937, 35 American Journal of Legal History 70–98 (1991); Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921, 5 Law and History Review 249–279 (1987). See also David E. Bernstein, Lochner's Legacy's Legacy, 82 Texas Law Review 1–64 (2003). 17 Lochner v. New York, 198 U.S. 45 (1905). Lochner is indeed one of the most controversial decisions in the legal history of the United States. For a synthesis and revision of the case and the scholarship on it, see Bernstein 2003, supra n. 16. 18 Roscoe Pound, The Need of a Sociological Jurisprudence, 19 Green Bag 607–615 (1907). 19 James E. Herget, The Influence of German Thought on American Jurisprudence, 1880–1918, 221–227, in Mathias Reinmann (ed.), The Reception of Continental Ideas in the Common Law World, 1820–1920 (Berlin: Duncker & Humblot 1993), 203–228. 20 Duxbury 1995, supra n. 1 at 79–93.

28 applied to provide conflicting results.21 The realists thus criticized the ideal that legal reasoning could produce logical conclusions from principles without being affected by any extra-legal factors. In addition to the critical aspect, there was also a more constructive, reformist aspect of realism. As was the case with the critical notion, a basic tenet was also to bring law and society in touch with each other. The problem was not so much that law was political, but rather that it ought to pursue different kinds of political aims. Legal realism was also a project of integrating empirical social sciences into legal scholarship to provide data for progressive legal reforms,22 and of changing legal education and its academic context to create lawyers as social engineers.23 In this respect, it followed the sociological jurisprudence of the early century24 but was more critical and a more general movement. Realism was not simply legal criticism, but a mood, an approach to law that sought to strip away the myths and create an instrumental concept of law that could promote particular political goals. It was an enterprise of adjusting legal scholarship to the forms of society, the economy, and scholarship of the early twentieth century. Besides realism, the inter-war era also marked a more general change in legal thought. Although the origins of realism were in the prosperous times of the 1920s, its ideas achieved new purposes with the great depression of the 1930s and in New Deal politics. Although the connection between realism and the New Deal is problematic and sporadic at best, many of the realists did find a place in the Roosevelt administration during the depression years.25 The Great Depression and its treatment required a political conception of law that could be used as an instrument to put the wounded economy back on track and help the nation back to the path of prosperity. Even if the realists of the law schools were not the architects of the New Deal, the ideas of the new politics and legal scholarship coalesced. Thus, the origins of the modern regulatory state and legal liberalism emerged in the late 1930s. The Supreme Court withdrew from the formalism of the laissez faire notions and began to uphold economic regulation by refraining from reviewing the purposes of legislation and paying attention instead to its factual circumstances. The reasons for the change of the Supreme Court may have been the political turbulence or in

21 Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press 1992), 193–208; Joseph William Singer, Legal Realism Now, 76 California Law Review 465, 477–499 (1988). Legal Realism was also influenced by German legal scholarship. See James E. Herget and Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 Virginia Law Review 399–455 (1987). 22 John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: The Univer- sity of North Carolina Press 1995). 23 Laura Kalman, Legal Realism at Yale, 1927–1960 (Union New Jersey: The Law Book Exchange 2001). 24 This is so even if the appearance of realism is often seen in the debate between Roscoe Pound, a sociological legal scholar, and Karl Llewellyn, a famous protagonist of realism (Horwitz 1992, supra n. 21 at 170–172). 25 Duxbury 1995, supra n. 1 at 149–158. Duxbury notes that the realists who entered the New Deal administration did not bring their realist theories with them.

29 the changes in legal doctrine, but the change occurred nonetheless.26 Many noteworthy trends in the development of law were set in motion during the inter-war years. The connection between legal scholarship and the social sciences was strengthened, traditional legal education was questioned and reconsidered, the idea of formalistic legal reasoning was weakened, the modern conception of legal instrumentalism and the regulatory state were consolidated, and legal liberalism, the idea of law as a tool to organize society and to help the people in need, was becoming a reality. Although the general line of development continued after The Second World War, many changes also occurred. The atrocities of the War and the fascist governments turned the academic mind against the extremism of realism which was accused of nihilism and of being a “might makes right” ideology.27 Postwar jurisprudence sought to correct the extreme arguments of realism and to bring rights and liberties back to the center of legal thinking. Scholars began once again to stress the importance of the rule of law as a guarantee of rights and a free society. Essential topics for scholarship were rights and the processes with which they were to be protected. Whereas realism had emphasized the role of the legislator and the unpredictable nature of adjudication, postwar legal thought began to stress the inalienable rights inherent in law and to define clear boundaries of legal reasoning.28 The postwar legal thought revitalized the claims of rationality and neutrality. There was no return to formalism, but the old ideas were resuscitated in the changed circumstances. The mainstream postwar legal thought simply emphasized the rationality of legal reasoning and the fact that certain rights followed naturally from the structure of society and the rule of law.

3 An outline of a history of Scandinavian and Finnish legal thought

The basis of Scandinavian legal scholarship was established in the nineteenth century, when the elements of positive science and law pushed aside the natural law theory of earlier times. The nineteenth century was a time of industrialization and population growth on the one hand, and nationalism and romanticism on the other. The old order of absolute monarchy was dethroned and parliamentarism and democracy began to develop, and the old community of the estates was transformed into a class society. Democra- tization and rule by the people began when economic growth helped the bourgeoisie to claim a strong social position and to challenge the rule of the monarchy and the nobili-

26 For two different interpretations of the constitutional change of the 1930s, see William E. Leuchten- burg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press 1995); Barry Cushman, Rethinking the New Deal Court: The Structure of Con- stitutional Revolution (New York: Oxford University Press 1998). 27 Edward A. Purcell Jr., The Crisis of Democratic Theory: Scientific Naturalism & the Problem of Value (Lexington, Kentucky: The University Press of Kentucky 1973), 159–178. 28 Horwitz 1992, supra n. 21 at 250–252; Minda 1995, supra n. 7 at 33–36; G. Edward White, The Path of American Jurisprudence, 124 University of Pennsylvania Law Review 1212, 1248–1249 (1976).

30 ty.29 Changes in the economy, society, and governance led to the liberalization of the economy, which created a need for a clear and predictable law.30 Following the trends in society, culture, and science, historical and pragmatic legal philosophy, particularly in Denmark and Norway, made its way to the center of legal scholarship in the first half of the century.31 Legal positivism strengthened its position in the latter half of the century. The times also witnessed the rise of the German-based conceptual jurisprudence, the purpose of which was to construct a comprehensive system of abstract legal concepts from which one could draw more particular rules. It emphasized coherence, systematics, logic, predictability, and reason at a time when society required a rational law and the positive law became the sole legal authority. Although constructivism achieved a dominant position, mostly in Norway and Denmark, it was threatened by various forms of sociological jurisprudence by the turn of the century.32 Despite variations in nation and in degree, conceptual jurisprudence brought an element of logic to Scandinavian legal thought. Being a part of Sweden, fundamental elements of Finnish legal culture had their origins in the Swedish tradition. For instance, the strong position of the state, national law, and legalism were adapted to Finnish legal thought before the nineteenth century.33 The tradition of legal scholarship was practically nonexistent in Finland until the late eighteenth century, and early legal thought followed the Swedish tradition by placing emphasis on national positive law with the justification of natural law.34 The centuries- long unity between the countries established a strong link between their legal systems, which however the later events shaped. Finland was annexed by Russia in 1809 which did not, however, mark any obvious change for law or legal scholarship because the established institutions were preserved.35 The first half of the nineteenth century was a time of slow change in Finland

29 T.K. Derry, A History of Scandinavia: Norway, Sweden, Denmark, Finland and Iceland (Minneapolis: University of Minnesota Press 1979), 220–248. 30 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luentoja oikeustieteen historiasta (Helsinki: Helsingin yliopisto 1996), 81. 31 Lars Björne, Brytningstiden: Den nordiska rättsvetenskapens historia, Del II, 1817–1870 (Lund: Rätts- historiskt bibliotek 1998), 31–43, 109–119, 229–348, 427–433. Swedish legal scholarship was in a poor condition from the beginning of the nineteenth century to the 1870s (id. at 151–159) and, since Danish culture had a significant position in Norwegian scholarship until the latter half of the nineteenth century (id. at 111), Denmark was the leading country in legal scholarship in the nineteenth century (id. at 428– 429). In addition, the stress on pragmatic and historical factors did not mean an uncritical acceptance of the historical school (id. at 234–241). 32 Lars Björne, Den konstruktiva riktningen: Den nordiska rättsvetenskapens historia, Del III, 1871–1910 (Lund: Rättshistoriskt bibliotek 2002), 208–230, 240–335, 454–460. To a certain extent, constructivism was in its turn a counter-reaction against the dominant traditions of the first half of the century. (Id. at 33, 85, 456.) 33 Pihlajamäki & Pylkkänen 1996, supra n. 30 at 2. 34 Lars Björne (ed.), Suomalaista oikeustiedettä Caloniuksesta Zittingiin, osa I (Turku 1981), 1–2; Hannu Tapani Klami, A History of Finnish Legal Science: An Outline, XIX Oikeustiede ─ Jurisprudentia 125, 137–174 (1986); Pihlajamäki & Pylkkänen 1996, supra n. 30 at 68–77. 35 Jukka Kekkonen, Suomen oikeuskulttuurin suuri linja 1898–1998 (Helsinki: Suomalainen lakimiesyhdistys 1998), 21. Hannu Tapani Klami has emphasized the significance of the relationship with Russia to

31 because of the lack of parliamentary activity.36 Legal scholarship took on a historical orientation by focusing on the study of the history of positive law in Sweden and Fin- land.37 Social and economic development in Finland lagged that of its Scandinavian neighbors, but in the latter half of the nineteenth century Finland also began to industri- alize. In 1855–1880, the economic structure of Finland was liberalized, and the growth of the economy and industry was set in motion.38 The latter part of the century was also significant for the development of legal scholarship. Finland followed the Scandinavian example and turned toward German conceptual jurisprudence as the basis of legal scholarship. Because of the lack of a strong national basis for jurisprudence, constructionism became very influential. It helped the legal scholars to systematize the law into a comprehensible whole that could be adapted to the needs of the growing industry, and it also suited the needs of science and scholarship.39 Finland had long been a relatively backward country and it remained so even after the reforms of the late nineteenth century. Conceptual jurisprudence, nevertheless, conformed to the complex problems of industry, and suited the legalistic tradition of Finland. Whereas the Scandinavian countries adopted forms of sociological jurisprudence in the late nineteenth century, Finland remained closer to the conceptualist tradition.40 Because of the legalist tradition of legal scholarship, the political tensions with Russia, and the relative backwardness of the society, Finnish legal scholars were not ready to adopt sociological perspectives in legal scholarship. Thus, whereas Scandi- navian legal scholarship moved toward pragmatism, Finnish legal scholarship maintained a more formalist approach. Scandinavian legal scholars had paid increased attention to empirical and social facts in legal studies from the late nineteenth century onwards. The early twentieth century witnessed a more extensive transformation of the methodology and basis of legal scholarship, when a remarkable new school of jurisprudence, which became to be known as Scandinavian legal realism, was developed in Sweden.41 The early twentieth century and the inter-war era were marked by the growing welfare measures in Scandi-

Finnish legal scholarship of the nineteenth century. (Hannu Tapani Klami, Oikeustaistelijat: Suomen oikeustiede Venäjän vallan aikana (Porvoo: Werner Söderström osakeyhtiö 1977); Klami 1986, supra n. 34 at 192.) 36 Henrik Meinander, Suomen historia: Linjat, rakenteet ja käännekohdat (Helsinki: Werner Söderström Osakeyhtiö 2006), 104–138. 37 Björne 1981, supra n. 34 at 12–13; Björne 1998, supra n. 31 at 199–203. 38 Jukka Kekkonen, Merkantilismista liberalismiin: Oikeushistoriallinen tutkimus elinkeinovapauden syntytaustasta Suomessa vuosina 1855–1879 (Helsinki: Suomalainen lakimiesyhdistys 1987). 39 Björne 2002, supra n. 32 at 169–179, 230–239; Klami 1977, supra n. 35 at 68–81; Björne 1981, supra n. 34 at 24–25; Klami 1986, supra n. 34 at 202–205. 40 Klami 1977, supra n. 35 at 173–174. 41 Lars Björne, Realism och skandinavisk realism: Den nordiska rättsvetenskapens historia, Del IV, 1911– 1950 (Stockholm: Rättshistoriskt bibliotek 2007), 1–5. Björne distinguishes between realism, i.e., Danish- Norwegian realist legal scholarship, and Scandinavian realism, i.e., the realism of the Uppsala school.

32 navia.42 The development of Scandinavian realism responded to the needs of society as well as to the changes in philosophy and science. Scandinavian realism was based on the early twentieth century Swedish realist philosophy, known as the Uppsala School, which sought to purge philosophy of metaphysics.43 The purpose was to analyze reality without subjective values or inconsistencies in thinking and language, and hence to analyze concepts logically in order to reveal their true meaning in objective reality. Realists also criticized the position of values in observation because values were derived from emotions and therefore had no place in objective reality.44 With the emergence of realism, Scandinavian legal scholarship distanced itself from the conceptual jurisprudence of the nineteenth century. The focus was shifted from the construction of concepts to the analysis of whether concepts corresponded to empirical reality. This was important since otherwise, the realists argued, the concepts had no significance. Scandinavian realism rejected natural law theories as metaphysics because there were no natural laws or rights. It also rejected positivist legal theories because the will of the legislator could not determine the meaning of law alone.45 Law was seen as an institution, as an organized man-made force to arrange social life and to influence the behavior of people.46 There was no law beyond the will of the legislator because there was no metaphysical reality and the will of the legislator did not create any independent “legal reality”. Realists stressed the fact that law was something observable from the behavior of the people, on which legal scholarship should focus. There was thus an instrumental relationship between law and society, and since law was not metaphysics, legal studies and arguments ought to be based on the realities of life.47 Realism bolstered the pragmatic elements of Scandinavian jurisprudence. By the first half of the twentieth century, there was a strong realist tradition within Scandinavi- an legal scholarship, which Finland, however, remained mostly outside. The impact of realism on Finnish legal scholarship was very different than in the Scandinavian countries. There were relatively realist legal scholars in Finland in the early twentieth century, who endorsed sociological or realist notions and criticized the conceptualist tradition

42 Sven Olson, Sweden, 4–7, in Peter Flora (ed.), Growth to Limits: The Western European Welfare States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Berlin: Walter de Gruyter 1986), 1–116; Stein Kuhnle, Norway, 120–121, in Flora (ed.) 1986, id. at 117–196; Lars Nørby Johansen, Denmark, 296–300, in Flora (ed.) 1986, id. at 293–381. 43 Jes Bjarup, The Philosophy of Scandinavian Legal Realism, 18 Ratio Juris 1, 1–4 (1/2005). 44 Markku Helin, Lainoppi ja metafysiikka: Tutkimus skandinaavisen oikeusrealismin tieteenkuvasta ja sen vaikutuksesta Suomen siviilioikeuden tutkimuksessa vuosina 1920–1960 (Helsinki: Suomalainen lakimiesyhdistys 1988), 11–15, 19–44; Eero Backman, Oikeustiede yhteiskuntatieteenä: Tutkimuksia oikeustieteen luonteesta erityisesti rikosoikeuden kannalta (Helsinki: Lakimiesliiton kustannus 1992), 181–190. 45 Bjarup 2005, supra n. 43 at 6–7. 46 John U. Lewis, Karl Olivecrona: “Factual Realism” and Reasons for Obeying a Law, 5 University of British Columbia Law Review 281, 285–288, 291, 296 (1970). 47 Helin 1988, supra n. 44 at 52–129; Björne 2007, supra n. 41 at 295–309. Realists disagreed over whether logical positivism was metaphysics or meaningful scientific method. (Bjarup 2005, supra n. 43 at 10.)

33 of legal scholarship, but their ideas received a hostile reception from the legal profession. Their influence thus remained rather insignificant at the time.48 The recent developments in Scandinavian legal scholarship found no firm ground in Finland, where the immediate influence of realism was rather in the counter-reaction it caused. Therefore, the Finnish jurisprudential tradition remained more conceptualist than the Scandinavian tradition. Several reasons can be advanced for the rejection of realism in Finland in the first part of the twentieth century. Because of the history of Finland, there was not much “authentic” national legal scholarship, the tradition of Finnish legal scholarship being based on German tradition.49 Furthermore, the social history of Finland differs significantly from that of the Scandinavian countries. In 1918, in the aftermath of independence, a civil war broke out in Finland between the working class and the bourgeoisie. The war ended in the defeat of the working class, and despite the few social reforms of the inter-war era, Finland remained largely a conservative country with a hostile attitude to any socialist tendencies.50 Realism has also been seen as an expression of the pragmatic nature of the legal profession,51 and the Finnish legal profession has been less pragmatic than the Scandinavian ones. Many factors thus distinguished Finland from other Nordic countries. Because of the civil war, private property was paramount and socialism was abhorred. Finland was also religiously more conservative than other Scandinavian countries, and the legal profession was more insensitive to the problems of the lower social classes. Therefore, realistic jurisprudence had no place in Finnish legal tradition before the Second World War.52 Because of the historical development of Finnish society, and the legal tradition and profession, realist jurisprudence and legal scholarship as social engineering were not adaptable. Conceptualism had a strong position in the scholarly tradition, and sociological jurisprudence suited neither the Finnish society nor the legal profession. Despite the few efforts to change the paradigm, Finland remained mostly constructivist.

48 Björne 2007, supra n. 41 at 223–226, 310–315, 350, 489–490, 562; Heikki Pihlajamäki, Rättskämpar och protorealister: Den tidiga kritiken mot konstruktivismen i Finland, JFT 2000, 344–349; Back- man1992, supra n. 44 at 3–4. On the impact of realism on Finnish legal scholarship between 1920 and 1950, see Helin 1988, supra n. 44 at 261–422. 49 Urpo Kangas, Brusiin ja moderni, Oikeus 4/1996, 264–265. 50 Matto Alestalo and Hannu Uusitalo, Finland, 200–201, in Flora (ed.) 1986, supra n. 42 at 197–292; Tapani Valkonen et al., Suomalaiset: Yhteiskunnan rakenne teollistumisen aikana (Porvoo: Werner Sö- derström osakeyhtiö 1985), 78–100. The civil war had a considerable influence on the polarization of Finnish society, but it also marked a break in the legalist tradition of the legal culture, since in the aftermath of the war, the rebels were convicted in special courts which often neglected various procedural standards in order to obtain the convictions. (Jukka Kekkonen, Laillisuuden haaksirikko: Rikosoikeuden- käyttö Suomessa vuonna 1918 (Helsinki: Lakimesliiton kustannus 1991).) 51 Heikki Pihlajamäki, Against Metaphysics in Law: The Historical Background of American and Scandi- navian Legal Realism Compared, 52 American Journal of Comparative Law 469, 487 (2004). 52 Toni Malminen, So You Thought Transplanting Law is Easy? Fear of Scandinavian Legal Realism in Finland, 1918–1960, 82–87, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki, (eds.), Nordic Law ─ Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 75–87; Heikki Pihlajamäki, Den rättsliga formalismen och kritiken av den: En rättsjämförande granskning av den finska rättsveten- skapen under 1900-talets första decennier, Retfærd 1997, 64–66.

The first half of the twentieth century was marked by pluralism in Scandinavian legal scholarship.53 Some scholars remained more conceptualist, whereas others adopted a more realistic approach. In general, however, Finland remained more formalist than other Nordic Countries, in which a more pragmatic and realistic orientation in legal studies and theory prevailed. After the Second World War, realism began to have more influence in Finnish legal scholarship, which began to pay more attention to the particular circumstances of practical legal problems.54 The Second World War, however, stripped all the extreme forms from society and science, and the scholarly tradition was headed in a more consensual direction. A couple of decades had to elapse before severe criticism could once again strike the tradition of law.

4 The World the War made

4.1 The legacy of the Second World War

The world was in a confused state after the Second World War. The atrocities of the war and the totalitarian governments that had arisen before it forced the leaders of the allied nations to consider the means to prevent any recurrence of such an event. Europe was in ruins and in need of social and economic reconstruction. And so was the international community that had realized its weakness before machinery that could turn a national policy into a world disaster. Thus, the war and its aftermath turned out to be a significant turning point in the history of the world.55 Not too long after the war, the economy of the Western world began to prosper. The United States stood out as the economic giant, while the ruined economy of Europe stagnated at first but began to grow in the 1950s. The Soviet Union also rose to prominence with a different economic system than that of the Western World. The postwar economic expansion brought with it the growth of large transnational business and international economic organizations, which transformed the economic and industrial basis of the world.56 Market capitalism and consumer society were about to bloom. In addition to economics, internationalization involved global politics. In a need of a strong international organization for cooperation, the United Nations was founded to maintain peace and international cooperation.57 Europe began to structure the European Community in order to create close ties to the politics and economies of the European

53 Björne 2007, supra n. 41 at 562. 54 Helin 1988, supra n. 44 at 284–290. 55 Tony Judt, Postwar: A History of Europe since 1945 (London: Vintage Books 2010), 13–40. 56 Anthony Sutcliffe, An Economic and Social History of Western Europe since 1945 (London: Longman 1996), 6–96. 57 Stanley Meisler, United Nations: The First Fifty Years (New York: The Atlantic Monthly Press 1995), 1–20.

35 great powers and to maintain peace.58 Internationalization and the legacy of the war awakened a sense of universal community and equality. The organizations established after the war later became important sources for international human rights, although it took some time before the dream came to materialize. World politics also faced a serious challenge. The winning nations of the war were driven into the conflicting camps of the Western and Eastern parts of the world, led by the United States and the Soviet Union. The two super-powers had conflicting visions of dealing with postwar Europe. The Soviets aimed at strong control over politics and the economy and a socialist ideology, whereas the United States promoted democratic governments and an international, free-market economy and a capitalist ideology. Be- cause of this inability to agree, Europe was divided into two blocs, with the military treaty organizations NATO and the Warsaw Pact as the images of the divided world. Thus began the Cold War and the world became divided between the liberal-capitalist and socialist ideologies. The nuclear threat, the emerging arms race, and the liberalization of the colonial world only intensified the conflict that was about to have a major impact on world politics in the following decades.59 The Cold War and the balance of terror between the superpowers marked much of what happened during the postwar decades, and the events of the times were often dressed in ideological rhetoric following the conflict. The Cold War had its impact on both cultural and political issues. The United States sought to create an atmosphere amenable to its culture in order to prevent the spread of socialist ideology. Thus, besides the imperialist policies preventing the spread of communism, the American mass culture and the trend known as Americanization followed.60 American influences intruded with various aspects of social life and mass culture and consumption became essential elements of the Western world.

4.2 Changes in scholarship

In addition to society, politics, and the economy, philosophy, science, and scholarship also changed significantly. During the war, there was a mass emigration of European scholars to the United States, which had by then become an influential center of scholarship. Furthermore, during and after the war, scholars increasingly participated in handling social problems, which meant new purposes for the sciences. The growing en- couragement for cross-disciplinary research contributed to the development of research methods, and the social sciences began to emphasize the importance of theory and posi-

58 Judt 2010, supra n. 55 at 156–157. 59 John Lewis Gaddis, The Cold War (London: Penguin Books 2007), 7–65, 98–106, 121–143; Norman Friedman, The Fifty-Year War: Conflict and Strategy in the Cold War (London: Chatham Publishing 2000), 43–122. 60 Judt 2010, supra n. 55 at 348–353.

36 tivism in their pursuit of dealing with reality.61 The times marked a reorientation of the social sciences, which became a major part of academic scholarship with the purpose of investigating social reality in order to provide data for reform. Important philosophical changes also occurred. The coming of the linguistic turn directed the interest from reality toward language. Whereas realism had stressed that reality could be comprehended through empirical observations, the new direction began to emphasize that reality could be comprehended only through language; because there was no truth beyond it, the focus ought to be placed on the concepts of language instead of nature as such.62 Mere observations were not adequate because they were linguisti- cally constructed.63 After the linguistic turn, the main interest of philosophy was in language instead of nature, but the turn acquired new dimensions when it faced other developments in philosophy and scholarship. A remarkable scientific development was that of anthropology. Its status before the War was ambiguously somewhere between archeology and ethnology, and linguis- tics and phonology. After the war, however, the interest in primitive tribes increased.64 Anthropology contributed to the understanding of differing societies and cultural relativity, and it encouraged seeing the contingency of the social order. A significant school was structuralist anthropology, which combined the analysis of language and cultural studies into a theory of structures, meaning that the notion of reality was within structures, beyond the individual reason.65 Structuralism became highly influential in the early 1960s, arguing that language was a mechanism that was its own truth. “Society was hence decentered from the whirl of human subjectivity and shifted to the objectivity of structure.”66 Structuralism pointed out that reality could not be comprehended through simple observation but one had to comprehend the structures of observation. The image of the transformation of scholarship after the war would not be complete without two further occurrences. These were the rise of Critical Theory and neo- Marxism. It is difficult to describe briefly the Marxist scholarship that follows the theories that the German philosopher, sociologist, and historian Karl Marx67 developed in

61 Roger E. Backhouse and Philippe Fontaine, Toward a History of the Social Sciences, 184–190, 198– 200, 222, in Roger E. Backhouse and Philippe Fontaine (eds.), The History of the Social Sciences since 1945 (Cambridge: Cambridge University Press 2010), 184–233. 62 Thomas Baldwin, Contemporary Philosophy: Philosophy in English since 1945 (Oxford: Oxford Uni- versity Press 2001), 11. 63 Stanley Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (New York: Oxford University Press 1979), 129–243. 64 Adam Kuper, Social Anthropology, in Backhouse and Fontaine (eds.) 2010, supra n. 61 at 136–154. 65 Terence Hawkes, Structuralism and Semiotics (New York: Routledge 2003), 19–43. 66 Mark Poster, Existential Marxism in Postwar France: From Sartre to Althusser (Princeton, New Jersey: Princeton University Press 1975), 306–314, quotation at 311. 67 Karl Marx was born in 1818 to a middle class family. He studied in Bonn and later in Berlin; first law, which he later changed to philosophy. During his studies he became interested in Hegelian philosophy and history. Though critical of its idealism, at first he was interested in Hegelian philosophy. Later his criticism would become stronger. Having completed his educations, he worked as a journalist and had to move to Paris because of the censorship his journal faced. He moved to London in 1849, where he remained for the rest of his life. His theory had started to develop in the 1840s, but he wrote his most signif-

37 the latter half of the nineteenth century. Roughly speaking, the essential concepts of Marxist theory are dialectical historical materialism, class struggle, the relation between the basis and the superstructure, and the relation between being and consciousness.68 The central tenets of Marxism can be summarized as follows. In a central position is history, which is dialectical and driven by materialist motives. Historical change follows from the conflict of opposing motives that derives from the materialist reality, and because materialist interests are the main motives of change, economic relations are the most influential motor of development. Economic development had created the modern relations of production that had initiated the struggle between the modern social classes, namely, the owners of the means of production and the working class. Economics and the class struggle form the basis, the civil society, on which the superstructure, the state, is built. Because the role of the state is to guarantee the reproduction of the economy and the social order, it legitimizes the status quo by making it appear rational, just, and necessary. This leads to reification and false consciousness, which mean that social relations appear as something other than what they actually are. Western Marxist scholarship had been already revived in the inter-war years.69 These were also the times of the emergence of the Frankfurt School following the establishment of the Institution for Social Research in 1923 in Frankfurt, often linked with the names of Max Horkheimer, Theodor Adorno, and Herbert Marcuse. Scholars working at the institute developed Marxist theories during the 1920s and 1930s but, because of their mostly Jewish background, their work became practically impossible after the Nazis came to power. This led to their emigration, eventually to the United States. Dur- ing and after the War, the scholars of the Frankfurt School developed the Critical Theo- ry that was based on Marxism. Essential to the theory was the abhorrence of idealism, closed philosophical systems, and doctrinaire research. According to the theory, there was no absolute truth, which was rather something that was constructed in society according to social values and norms. Social analysis was a part of society, and a scholar was always conditioned by the society within which he or she worked. Thus, the critical element of the theory was that a scholar was to disclose and analyze the influences the society imposed on him, and thenceforth to critically review the influences.70

icant works after his move to London. For a biography of Karl Marx, see David McLellan, Karl Marx: His Life and Thought (London: Macmillan/Papermac 1987). 68 The literature on Marx is voluminous and there is no point in listing it here. For a systematic account, see Allen W. Wood Karl Marx (2nd Edition, New York: Routledge 2004). 69 Martin Jay, Marxism and Totality: The Adventures of a Concept from Lukács to Habermas (Berkeley: University of California Press 1984), 102, 128–132; Leszek Kolakowski, Main Currents of Marxism, Vol. 3: The Breakdown (New York: Oxford University Press 1981), 253–255, 308; Poster 1975, supra n. 63 at 42–49. 70 David Held, Introduction to Critical Theory: Horkheimer to Habermas (Berkeley: University of Cali- fornia Press 1980), 29–39, 176–225; Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923─1950 (London: Heinemann Educational Books 1973), 3–85; Kolakowski 1981, supra n. 69 at 341–357.

Critical Theory provided a framework for scholarship to study social ideologies and their influence on science and scholarship. A scholar was not an outsider, a neutral observer of empirical facts but rather a participant in the creation of social reality. Ob- servations were preconditioned by social values and also contributed to their creation. The legacy of the Frankfurt school for science was persistent skepticism towards facts and the adaptation of Marxism to contemporary circumstances. It was an interpretation of Marxism without its orthodox or communist grip, which therefore provided a useful basis for social criticism from various perspectives. Critical Theory was, however, only a part of the wider turn in philosophy and the social sciences. From the 1960s onwards, there was a general reaction against positivism and the use of the methodologies of the natural sciences in social science.71 Scien- tific positivism began to lose its position at the center of the social sciences, and scholarship such as structuralism, hermeneutics, and psychoanalysis became more popular. In the 1960s and 1970s, structuralism was in turn criticized for being conservative and more radical criticism of positivism appeared. An important development was the Kuhnian theory of the paradigm, which pointed out the historicism of knowledge. Vari- ous theories began to place structuralism under a critical historical and social analysis.72 The new theories helped to understand the connection between science and social development. Although the impossibility of comprehending reality was realized earlier, the new critical scholarship began to analyze the construction of reality against its particular historical and social context. During the first postwar generation, scholars began to turn to explore the reality behind empirical reality. Knowledge was thus not only constructed, it was argued, but was constructed for a purpose. Although the significance of the turn was not unambiguous,73 the feature its fol- lowers shared was the emphasis on “the importance of the local and the contingent, a desire to underline the extent to which our own concepts and attitudes have been shaped by particular historical circumstances”.74 Thus, besides the linguistic turn there was also an “epistemological turn” that followed the fact that reality could not be comprehended as such but was constructed through the use of language which in turn was also a social and cultural construction. After the epistemological turn, the world was not simply to be observed but the observation was to be reviewed against the context. In addition, Marxist scholarship was adapted to various philosophical branches.75 Various forms of existentialist and structuralist Marxism emerged in France,76 and new developments in Marxism also occurred in Germany and Italy.77 The new epistemology

71 Quentin Skinner, Introduction: The Return of Grand Theory, 5–6, in Quentin Skinner (ed.), The Return of Grand Theory in the Human Sciences (Cambridge: Cambridge University Press 1985), 1–20. 72 Backhouse and Fontaine 2010, supra n. 61 at 201–206. 73 Martin Jay, Should Intellectual History Take a Linguistic Turn? Reflections on the Habermas-Gadamer Debate, in Dominick LaCapra and Steven L. Kaplan (eds.), Modern European Intellectual History: Reap- praisals and New Perspectives (Ithaca: Cornell University Press 1982), 86–110. 74 Skinner 1985, supra n. 71 at 12. 75 Perry Anderson, Considerations on Western Marxism (London: Verso 1979), 49–74. 76 Poster 1975, supra n. 66 at 209–360. 77 Jay 1984, supra n. 69 at 423–509.

39 and Marxism proved to be a suitable combination. Marxism became a popular method that could be adapted to many kinds of theories, a method of criticism that could be used in evaluating the causes and impacts of the flaws in modern society. Scholars and intellectuals who were interested in the leftist agenda and the critical potential of science advocated Marxist methods in their scholarship to meet the social and scientific needs. The postwar years witnessed a considerable change in philosophy and scholarship. Society needed new kinds of engineering in the form of scholarship, which led to the development of the social sciences. Positivism followed the need to provide data for social engineering, and the cooperation between scholars in different disciplines developed the methods of scholarship further. The linguistic turn in philosophy, scholarly schisms, and the rising social turbulence, however, gave rise to critical views of positivism. The world was not to be taken at face value, but the limits and preconditions of observation were to be analyzed in search for authenticity. Following the changes in society, politics, and culture, the young turned toward radicalism, leftism became a powerful force in society, and hence Marxism became an important method in scholarship. Revision of Marxism provided tools for criticizing capitalist society without however idealizing Soviet socialism. In order to fully understand the scientific change and, furthermore, the change in postwar society, we still need to take a look at the change in political ideology.

4.3 The rise of the New Left: Intellectual and social criticism

The Cold War divided the world between the liberal capitalist and socialist blocs. The conflict had a considerable impact on western politics as well. In the postwar Western Europe, communist parties became stronger than they had been before the war. In the United States, on the other hand, the 1950s marked the anticommunist hysteria and witch-hunts which significantly paralyzed radical leftist activities. However, the problem of the western left was that it sought to find a forceful opposition and alternative to the liberal capitalism but did not want to succumb to the socialism of the old left, the Soviet Union, or orthodox Marxism. The New Left therefore emerged in the late 1950s. Although it was also the beginning of modernization, secularization and moral liberalization, the first full decade following the war was a relatively conservative time and marked a general distrust of socialism.78 What came to be known as “the New Left” arose out of the tension between the communist and non-communist left. Already in the late 1940s and early 1950s, intellectuals in the universities of Western countries criticized the American-dominated liberal capitalism of the western world, while they also avoided glorifying Stalinism and

78 Ronald Fraser, 1968: A Student Generation in Revolt (London: Chatto & Windus 1988), 13–28; Judt 2010, supra n. 55 at 373–389.

Soviet authoritarianism.79 In these times, the movements promoting peace and opposing nuclear weapons, as well as the civil rights struggle also began to emerge.80 Powerful impulses for the development of the new left were also the Hungarian revolt and the Suez Crisis of 1956, which demonstrated the imperialist tendencies of both the Western and Eastern super-powers and encouraged the dissenters of capitalism to find a third solution between the ideologies. The emergence of the New Left culminated in Great Britain with the founding of the New Left Review.81 The people of the Western nations, and most of all intellectuals and writers, noticed the failure of the promises of the postwar society in the 1950s and the early 1960s, since poverty and misery persisted despite national economic prosperity. In addition, the growth of international big business alienated the working class from their labor and exposed the inequalities of social power structures. The dissatisfaction with society grew, and the tensions of decolonization and the fear of the nuclear disaster inflamed the dissent.82 A critical mood toward the political establishment developed all over the western world. The upheaval began from the peace protests and domestic dissatisfaction, and the international crises intensified the antagonism. An atmosphere critical of the political and social order continued to grow, and the political elite became unable to tame the critical mood. The New Left thinkers were particularly irritated by the liberal rhetoric and the End of Ideology debates. Conservatives presented the American society and culture as being the best without any real alternatives, and critical thought did not accept this. Thus, in his Letter to the New Left, C. Wright Mills criticized the ideological rhetoric that saw no alternative to the liberalism of the west and encouraged the young intelligentsia around the world to fight for a utopian future. He also gave his definition to the terms right and left. According to him, right meant “celebrating the society as it is…”, while the left meant “structural criticism and reportage and theories of society…”. Hence, “[t]o be ‘Left’ means to connect up cultural with political criticism, and both with demands and programmes.”83 Leftism meant not taking society at face value but criticizing it from various points of view and then connecting these criticisms with agendas of political change. The search for reform had begun, but it had to wait for a more appropriate moment to finally burst out at its maximum capacity.

79 Kevin Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism, 1945– 1970 (University Park, Pennsylvania: The Pennsylvania State University Press 2002), 28–41, 52–69; Poster 1975, supra n. 66 at 209–239. 80 Maurice Isserman, “If I had a Hammer…”: The Death of the Old Left and the Birth of the New Left (New York: Basic Books 1987), 127–169; Lawrence S. Wittner, The Struggle against the Bomb, Volume 2: Resisting the Bomb: A History of the World Nuclear Disarmament Movement, 1954─1970 (Stanford, California: Stanford University Press 1997), 41–82. 81 Fraser 1988, supra n. 78 at 47–62; Stuart Hall, Life and Times of the First New Left, 61 New Left Re- view 177, 177–186 (2010). See also http://www.newleftreview.org/history (last visited 24.5.2012). 82 Jeremi Suri, Power and Protest: Global Revolution and the Rise of Detente (Cambridge, Massachusetts: Harvard University Press 2003), 96–99; Kristin Ross, May ‘68 and its Afterlives (Chicago: The Universi- ty of Chicago Press 2002), 40–64; Poster 1975, supra n. 66 at 361–369. 83 C. Wright Mills, Letter to the New Left, New Left Review 5/1960, 18–23, quotations at 20–21.

By the beginning of the 1960s, critical leftist thought and various theories associated with it had developed.84 One of the most influential writers of the New Left was Herbert Marcuse, whose One-Dimensional Man (1964) became the image of the rebellion against the liberal capitalist society.85 In the book, he articulated how society dictated and imposed the notions of freedom and the criteria of good life on the people, and how the false idea of freedom had overwhelmed everyone beyond the capacity of authentic thinking.86 Although the direct impact of the book on the social protests was not decisive,87 it nonetheless described the dissident thought and the angst about society well. The book painted the image of a society that had absolute values, reified reality, and where everyone was indoctrinated into the social consciousness. In addition, it argued that modern science was one-dimensional in the same way the people and society were,88 reflecting the critical science that was on the rise in the early 1960s. The book depicted the critical image of the liberal western society well. The people who were not willing to adapt to society felt alienated and were thus urged to find another possibility that could guarantee the potential for real freedom and personal authenticity. The critical mood was present in the first part of the 1960s but the most radical events were yet to come.

4.4 1968: “The Year that Rocked the World”

The sixties were indeed a transformative decade in many ways. The rising counter- culture and the critical atmosphere toward the authorities and social order that had emerged in the aftermath of the Second World War reached their zenith in 1968. After the postwar economic growth and the baby-boom, the sixties were times of economic prosperity, but they were also times of struggles against the dominance of capitalism and for civil rights. Despite the great expectations, western societies had not succeeded in establishing a truly equal and free society. The sixties were also times of the youth and alternative culture. Rock music, free love, drugs, and rebellion against authority were parts of the new culture of the young that the conservatives abhorred. Literature

84 Mattson 2002, supra n. 79 at 230–240; Poster 1975, supra n. 66 at 304–305. 85 Douglas Kellner, Herbert Marcuse and the Crisis of Marxism (Basingstoke: Macmillan 1984), 1; Mil- ton Cantor, The Divided Left: American Radicalism, 1900–1975 (new York: Hill and Wang 1978), 196. 86 Herbert Marcuse, One-Dimensional Man (New York: Routledge Classics 2002), 4–17, 25–37, 52–82. 87 Mattson 2002, supra n. 79 at 7–8 n. 8; Ross 2002, supra n. 82 at 191. The impact of Marcuse on New Left thought is problematic. Gitlin, for instance, emphasizes his influence. (Todd Gitlin, The Sixties: Years of Hope, Days of Rage (New York: Bantam Books 1993), 246). In addition, Marcuse’s impact might have been greater in Germany than in France. (See Suri 2003, supra n. 82 at 126–127.) 88 Marcuse 2002, supra n. 86 at 168–203.

42 like Beat and existentialism represented the yearning for authenticity and alienation of the society. The resistance was cultural, intellectual, and political.89 The year 1968 was the culmination of the rising turbulence. The decade was marked by the conflicts beginning with the Cuban revolution, but no event raised such a general protest movement as the Vietnam War, which provided the final spark for the radical protests of the late 1960s.90 The War symbolized the capitalist oppression of the poor and the imperialism of the American hegemony, and the media disseminated the images of U.S. planes bombing the fields of Vietnam and the sufferings the war caused. In 1968, violent and massive protests occurred not only in the United States and Western Europe, but also in Eastern Europe, the Soviet Union, China, Japan, Brazil, and Mexico. In addition to the Vietnam War, the protests also concerned domestic and academic affairs.91 The protest movement was worldwide and involved the dominant ideology. As an American New Left activist and a future critical legal scholar, Karl Klare noted, the New Left struggle in the Western world emerged “as a resistance to advanced, welfare-state capitalism, and in Eastern Europe as a revolt against bureaucratic and authoritarian regimes.”92 The Soviet suppression of Prague in August, 1968, turned the radical youth more against the socialist imperialism. What began as mostly student rebellion at the universities turned into widespread protest against the society, the most radical example being France, where a nationwide strike was initiated to support the protests.93 The turbulent 1960s came to a violent end in 1968. The youth rebellion reflected the serious dissatisfaction with social politics and the hatred of imperialism and warfare. The dominant ideologies in both capitalist and socialist countries were challenged and the social consciousness was not what it had been for the previous couple of decades. It goes beyond the scope of this study to contemplate the reasons of the rebellions of the 1960s, but some suggestions can be made. Historians have stressed the significance of the large generation that abandoned its respect for traditional authorities, the war in Vietnam and the nuclear confrontation, the strengthening civil rights movement and the recognition of the other side of the society, and the media that brought the visions of miseries and the actions of the rebels to the eyes of the whole world.94 The university is also important, because the student population grew rapidly from the late fif-

89 Fraser 1988, supra n. 78 at 63–72, 98–101; Judt 2010 supra n. 55 at 324–353, 394–398; Arthur Mar- wick, The Sixties: Cultural Revolution in Britain, France, Italy, and the United States, c.1958–c.1974 (Oxford: Oxford University Press 1998), 41–193, 316–358, 404–454. 90 Suri 2003, supra n. 82 at 4, 88–89, 162; Ross 2002, supra n. 82 at 90; Cyril Levitt, Children of Privi- lege: Student Revolt in the Sixties (Toronto: University of Toronto Press 1984), 39–49. 91 Mark Kurlansky, 1968: The Year that Rocked the World (London: Jonathan Cape 2004), 81–84, 118– 128, 149–157, 196–208, 218–237, 331–344; Fraser 1988, supra n. 78 at 121–232; Marwick 1997, supra n. 89 at 584–675. 92 Karl E. Klare, The Critique of Everyday Life, the New Left, and the Unrecognizable Marxism, 14, in Dick Howard and Karl E. Klare (eds.), The Unknown Dimension: European Marxism since Lenin (New York: Basic Books 1072), 3–33. On the dissenter culture of the 1960s in Russia and China, see Suri 2003, supra n. 81 at 105–121. 93 Kurlansky 2004, supra n. 91 at 218–237, 290–305. 94 Isserman 1987, supra n. 80 at xvii; Kurlansky 2004, supra n. 91 at xviii; Suri 2003, supra n. 82 at 164.

43 ties onwards and because it was the students in particular who rebelled. Higher education institutions were places where critical notions were introduced to young people, and where a large number of them could communicate and organize groups.95 Universi- ties provided a fertile ground for radicalism to grow. Young people of the sixties read critical literature, talked with each other, and formed groups. Thus, the radical spirit was further cultivated in the universities. The radicalism and the student rebellion of the 1960s were not simply cultural but also political events.96 They were complex phenomena arising out of the social, political, cultural, and scientific changes in the postwar world, converging with the events of the period as well as with the large generational cohort and student population, which contributed to the scale of the radicalism and protests.97 1968 was the culmination of a long process, a point where the radicals had simply had enough and resorted to action. By idolizing rebels like Che Guevara, people not pleased with the contemporary society felt like freedom fighters rebelling against an unjust system. Whatever caused the unrest, the period produced a remarkable gulf between the old and the new generation, a gulf that caused a huge difference in the perception of the world between the traditional and the alternative cultures, a gulf that was not simply about age, but rather about world view and orientation toward life and society. As a consequence of the changes in society, culture, politics, and scholarship, the three decades after the Second World War produced two opposing perspectives on the world. The sixties ended with a ray of hope when the pictures of the earth taken from space were shown through a satellite to the whole world.98 The decade had raised many hopes and left a troubled legacy. Student radicalism dissolved around the change of the decade from 1960–1970, but its political, social, cultural, and intellectual commitments survived in the forms of social and political activism.99 Otherwise, the following decades meant a slight but steady return toward a more conservative politics.100 With respect to legal scholarship, too, critical scholarship blossomed in the 1970s. The following chapters deal with the evolution of critical legal scholarship in the United States, Scandinavia, and Finland. The year 1968 is a beacon for the study. I shall concentrate on the years that preceded it and then continue through the years that followed.

95 Suri 2003, supra n. 82 at 92–93, 129, 292 n. 15. See also Levitt 1984, supra n. 90 at 47–92. 96 Ross 2002, supra n. 82 at 8–17. In an early historical analysis of the American Left, Massimo Teodori writes that the development of the New Left occurred at three levels, psychological, social, and political. The common feature among those involved in the movement was that they all rejected the traditional form of American life. (Massimo Teodori, (ed.), The New Left: A Documentary History (London: Jona- than Cape 1970), 73–75.) 97 See, e.g., Marwick 1998, supra n. 89 at 24–25, 36–38, 42. 98 Kurlansky 2004, supra n. 91 at 381–383. 99 Levitt 1984, supra n. 90 at 9; Fraser 1988, supra n. 78 at 285–313. 100 Judt 2010, supra n. 55 at 453–464, 477–478.

III Alternative and critical legal scholarship in the United States, 1965–1980

1 American society in the 1960s and 1970s

The United States entered the 1960s as the most powerful nation in the world. The postwar baby-boom and economic growth had produced considerable wealth and prosperity for the nation, whose infrastructure had escaped the devastation of the war. Alt- hough the economic expansion was slowing in the 1960s, the decade was marked by prosperous big business and profits, general increase in wealth, and urbanization and sub-urbanization. Mass culture developed as more and more people had the opportunity for mass consumption and the general living and working conditions were improved. Increasing crime rates, juvenile delinquency, unemployment, and inequalities in distribution of wealth were, however, the downsides of this development.1 Foreign affairs were more problematic from the outset. The Cold War emerged as a legacy of the Second World War, disrupting the foreign politics and the ideological atmosphere of the United States.2 The red scare and the anticommunism that followed tamed any leftist tendencies and produced a more conservative atmosphere.3 The Cuban revolution produced a communist regime near the American border, and the missile crisis drove the world close to a nuclear war.4 The crisis was a terrible reminder of the potential for super-power conflict exacerbated by nuclear weapons. In addition, international conflicts arising out of the ideological schism occurred further from the borders. The Korean War troubled Asian affairs in the fifties,5 but the sixties brought the Vi- etnam War that had remarkable political effects across the entire western world. The war had begun in the decolonization after the Second World War with the United States supporting the French troops in their former colony in the struggle against the North Vietnamese communist regime.6 The United States entered the war in 1964 and re-

1 James T. Patterson, Grand Expectations: The United States, 1945–1970 (New York: Oxford University Press 1996), 10–12, 59–70, 77–78, 312–326, 333–336, 345–348, 450–454, 467–468, 533–538. 2 In general on the Cold War and its impact on world policies, see John Gaddis, The Cold War (London: Penguin Books 2007); Norman Friedman, The Fifty-Year War: Conflict and Strategy in the Cold War (London: Chatham Publishing 2000). 3 Richard M. Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press 1990), 1–36, 59–202. 4 Michael R. Beschloss, Kennedy v. Khrushchev: The Crisis Years, 1960–1963 (London: Faber and Faber 1991), 91–117, 420–663; Friedman 2000, supra n. 3 at 213–214, 275–282. 5 Patterson 1996, supra n. 1 at 208–242. 6 Stanley Karnow, Vietnam: A History (New York: Penguin Books 1984), 135–239; George C. Herring, America’s Longest War: The United States and Vietnam, 1950–1975 (New York: McGraw-Hill 1996), 2– 79.

45 mained in the field till the mid-1970s.7 The war became the most hated war in history and an image of the 1960s, when mass protests against American participation were held world-wide.8 The War was an image of capitalist oppression and a reminder of the imperialist past of the western world, and the expansion of the media brought the images of the war home so that everyone could watch the massacres. On the home front, poverty and racism were especially pressing problems.9 The war on poverty was initiated in the 1960s to bridge the gap between the rich and the poor, and many legislative and social welfare measures were enacted aiming to improve the conditions of the poor.10 African Americans, on the other hand, had struggled against inequality and discrimination at least since the beginning of the century.11 Their social status had improved somewhat since the war but the situation was still bad in the fifties.12 The United States Supreme Court invalidated racial segregation in 195413 and raised hopes for a better future, but the situation did not improve as expected. In protesting against discrimination, African Americans became pioneers in the civil rights struggles. The peaceful protests of the 1950s and early 1960s became more violent as the situation persisted.14 The federal government sought to improve the situation with civil

7 Karnow 1984, supra n. 6 at 365–426. The Tonkin incident, in which the United States accused the Viet- namese of attacking U.S. ships at the Gulf of Tonkin, was rather an excuse for entering the war. (Herring 1996, supra n. 6 at 133–137.) 8 Maurice Isserman, “If I Had a Hammer…”: The Death of the Old Left and the Birth of the New Left (New York: Basic Books 1987), 166–167; James Miller, “Democracy is in the Streets”: From Port Huron to the Siege of Chicago (New York: Simon and Schuster 1987), 214–217, 228–234; Mark Kurlansky, 1968: The Year that Rocked the World (London: Jonathan Cape 2004), 54–56. 9 Organizations such as the American Civil Liberties Union (ACLU), the National Lawyers Guild (NLG), and the National Association for the Advancement of Colored People (NAACP) were important in the legal struggles against poverty and racism. These organizations were, of course, founded much earlier. The NAACP was founded in 1909, ACLU in 1920, and NLG in 1937. Furthermore, the civil rights struggle was not simply the activity of these organizations. 10 John A. Andrew III, Lyndon Johnson and the Great Society (Chicago: Ivan R. Dee 1998), 63–72, 101– 104, 114–123, 132–141, 163–182. The effects of the efforts were, of course, more problematic. (Id. at 72– 94, 104–107, 145–158.) 11 For the early struggles of the NAACP, see Gilbert Jonas, Freedom’s Sword: The NAACP and the Struggle against Racism in America, 1909–1969 (New York: Routledge 2007), 8–134. For the non- NAACP civil rights struggles in inter-war era, see Glenda Elizabeth Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: W. W. Norton 2008). 12 Manning Marable, Race, Reform, and Rebellion: The Second Reconstruction in America, 1945–1990 (Jackson: University Press of Mississippi 1991), 13–39. After the War, voting rights were improved, public offices were more open, and segregation in sports leagues and higher education was abolished. 13 Brown v. Board of Education of Topeka, 347 U.S. 438 (1954). The case is indeed one of the most well- known cases in the history of the U.S. Supreme Court. The history of the case is depicted in Richard Kluger, Simple Justice: History of Brown v. Board of Education and Black America’s Struggle for Equal- ity (New York: Vintage Books 2004); Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press 2004). The struggles for racial equality after Brown are reviewed in James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy (New York: Oxford University Press 2001). Kluger can be considered as traditional, whereas Klarman is a revision, emphasizing the fact that the decision was not a legal innovation but rather a reflection of the social and political development, and that its impact was not significant. 14 Marable 1991, supra n. 12 at 61–148; Patterson 2001, supra n. 13 at 118–146. The deaths of the civil rights leaders, Martin Luther King Jr. and Malcolm X intensified the violence of the protests.

46 rights legislation. Improvement was achieved, but the problem remained unresolved.15 Social problems and the responses to them were significant aspects of the sixties. The war on poverty was a sign of the recognition of the “other side” of American prosperity, which showed that social problems at least were not ignored. Civil rights struggles and the policies that followed made an important contribution by pointing out the realization of social problems, the activism of the citizen, and the willingness of the government to try to correct the social evils. Another important aspect was the revitalization of the American left.16 The left was, indeed, in a need of new impulses, since there had never been a strong political working-class coalition in the United States despite a few upward periods and strong labor unions,17 and “[t]he postwar years frustrated the American Left, which faced increasingly harsh Red-baiting after 1945.”18 After the war, the left began to prosper, especially among intellectuals. Social dissenters began to criticize the fact that suburbani- zation created circumstances which turned people into uncritical, conformist mass- consumers without a notion of individuality19 and, during the late fifties, the generation that had grown in the anti-communist and conservative postwar society began to feel alienated from the traditional norms and institutions of society.20 These disaffected youth identified themselves more with the otherness of the social misfit than with the lifestyle of their parents and thus deviated from that lifestyle. Labor unions also did quite well, even if the anti-communism did tone down the leftist tendencies of the unions, and the civil rights legislation of the 1960s improved the conditions of the workers and kept them quiescent.21 Since there was no strong working class left in America at the beginning of the 1960s, the left had to find another place to prosper. The leftist tendencies were most apparent in the radicalism that emerged. The New Left emanated from the civil rights movement and social dissatisfaction. It was a movement of radical students criticizing the university administration and society. Campus activism had begun in the late forties and intensified in the early sixties in the protests against the red witch-hunts, racial discrimination, and restrictions on freedom of speech on the campuses.22 The Students for a Democratic Society organization was

15 Andrew 1998, supra n. 10 at 23–55; Hugh Davis Graham, The Civil Rights Era: Origins and Develop- ment of National Policy, 1960–1972 (New York: Oxford University Press 1990), 125–277. 16 Kevin Mattson, Intellectuals in Action: The Origins of New Left and Radical Liberalism (University Park, Pennsylvania: The Pennsylvania State University Press 2002), 7; Milton Cantor, The Divided Left: American Radicalism, 1900–1975 (New York: Hill and Wang 1978), 173–174; Paul Buhle, Marxism in the United States: Remapping the History of the American Left (London: Verso 1987), 206–213. 17 Buhle 1987, supra n. 16 at 19–183. Buhle argues that there has been no universal consensus on the virtues of capitalism in the United States but the socialist tradition has not been persistently sustained either (id. at 10–11) and concludes that “[c]ommunism in America… was a culture essentially for the intellectuals, the foreign born, and the exceptional autodidact.” (Id. at 188.) It seems that there has not been a strong, uniform leftist movement in America but rather various forms of social antagonism. 18 Patterson 1996, supra n. 1 at 41. 19 Id. at 337–340. 20 John Partick Diggins, The Rise and Fall of the American Left (New York: W. W. Norton 1992), 219– 221; Isserman 1987 supra n. 8 at 58–65, 98–102. 21 Melvyn Dubofsky, Labor in America: A History (Wheeling, Illinois: Harlan Davidson 2010), 209–324. 22 Isserman 1987, supra n. 8 at 58–60, 144–168, 173–198; Cantor 1978, supra n. 16 at 182–202.

47 founded in 1960, and in 1962 its members gathered in Port Huron to create a project for the future. Thus, the American New Left emerged, distancing itself from the Marxism of the old left, emphasizing participatory democracy, and trying to adapt the leftist ideology to modern circumstances.23 The escalation of the Vietnam War only intensified the activism. The zenith of radicalism was reached in the siege of Chicago in August 1968 when the leftist radicals protested at the Democratic Party convention. The protests ended up in a violent confrontation with the police.24 Besides student radicalism, women also became more aware of their oppression. The rising gender consciousness contributed to the legislation regarding equality between the genders, but the radical branch of feminism went further in its criticism of the male domination of society. Women within the New Left and civil rights movement were resentful because of male domination and because the radicals cared more about Vietnam or the civil rights of African Americans than the deprived status of women. As a consequence, modern radical feminism rose during the sixties.25 The New Left was mostly a movement of radical students who protested against the inequalities of the society. It did not succeed in cooperating with the labor unions or the civil rights movements because of its agenda, but it was a culmination of the protest atmosphere and cultural rebellion. The critical spirit of the 1960s did not last long. In general, “[t]he late sixties was a time of strong antibusiness sentiment in the United States,”26 and movements such as consumer protection and environmentalism emerged.27 People were dissatisfied with the way things were governed and dealt with, and various dissenting movements began to demand changes in politics. The end of the 1970s, however, meant a slow but steady general turn toward more conservative politics.28 Since the liberal reforms of the 1960s had not been radical, no fundamental change had occurred in spite of the many chang-

23 Miller 1987, supra n. 8 at 41–217; Isserman 1987, supra n. 8 at 116–123, 202–219; Buhle 1987, supra n. 16 at 232–242; Mattson 2002, supra n. 16 at 13–14, 230–253. The Port Huron Conference is typically seen as the origin of the New Left. In the revision of the New Left it has, however, been argued that the Port Huron Conference was not particularly significant for the future of the New Left. Smith, for instance, argues that the SDS did not distance itself so far from the old left that it would have created something special for the future in Port Huron. (Allen Smith, Present at the Creation... and Other Myths: The Port Huron Statement and the Origins of the New Left, 25 Peace and change 3/2000, 346, 348–350, 353 356– 357.) 24 Diggins 1992, supra n. 20 at 228–231; Todd Gitlin, The Sixties: Years of Hope, Days of Rage (New York: Bantam Books 1993), 319–336; Cantor 1978, supra n. 16 at 207–216; Miller 1987, supra n. 8 at 226–306. 25 Ruth Rosen, The World Split Open: How the Modern Women’s Movement Changed America (New York: Penguin Books 2000), 69–164, 267–294. 26 Andrew 1998, supra n. 10 at 171. 27 Patterson 1996, supra n. 1 at 712–713, 725–729; Andrew 1998, supra n. 10 at 164–177. 28 Bruce J. Schulman, The Seventies: The Great Shift in American Culture, Society, and Politics (New York: The Free Press 2001), 193–194. In many respects, the 1970s was a continuation of the trends of the 1960s. It was not until the end of the decade and the beginning of the 1980s that the conservative turn was clear. For instance, despite conservative social policy, efforts to improve social security also continued throughout Nixon's first presidency, and it is thus questionable whether Nixon was the “last liberal” or the “first conservative”. (Schulman 2001, id. at 24–35.) Nevertheless, the political agenda of the 1980s was also strengthened in the 1970s, which thus marked a significant decade for the new conservatism.

48 es.29 Nonetheless, widespread radicalism and New Left activism came to an end in the early 1970s.30 It was also a time of an economic downturn, largely due to the Vietnam War and the oil crisis, and the economic recession increased unemployment and income disparities, encouraging labor union activity and strikes.31 Workers, however, never identified themselves with the radical left.32 The conservative turn was also reflected in the Supreme Court. The sixties had been the heyday of the liberal Court known as the Warren Court. School desegregation in 1954 was the first significant liberal decision and along with the 1960s came several decisions which improved the protection of civil rights and the procedural rights of the accused.33 At the early 1970s, the Court also began slowly to withdraw from its liberal stance. Of course, liberal decisions, such as the legalization of abortion in 1973, continued sporadically.34 The liberal decisions of the Warren Court were reflections of society that contributed to the people’s awareness of rights,35 but the rulings, and in particular the decisions concerning the rights of the criminal procedure, were also severely criticized.36 Nevertheless, the Court both reflected the social atmosphere and influenced it. Whatever were the causes of the decisions, they reflected the liberal spirit of the 1960s and strengthened the citizen’s awareness of rights, but they also caused a counter- reaction, which contributed to the decline of the liberalism. Neither social, intellectual, and cultural criticism from the left, nor the liberal activism, of course, ended in the 1970s even though the large-scale radical-liberal front faded. Liberalism and radicalism continued in many forms of activism in later years,37 although what was known as the New Right emerged more strongly in the 1970s. The deeply hated Vietnam War ended in 1973, and the Watergate scandal produced a widespread distrust of public authorities. People were still struggling for their rights but ma-

29 Patterson 1996, supra n. 1 at 590. 30 Cantor 1978, supra n. 16 at 217–222; Cyril Levitt, Children of Privilege: Student Revolt in the Sixties (Toronto: University of Toronto Press 1984), 53. 31 Richard Moser, Autoworkers at Lordstown: Workplace Democracy and American Citizenship, 290– 298, in Van Gosse and Richard Moser (eds.), The World the Sixties Made: Politics and Culture in Recent America (Philadelphia: Temple University Press 2003), 289–315. 32 Diggins 1992, supra n. 20 at 265; Cantor 1978, supra n. 16 at 221–222. 33 Morton J. Horwitz, The Warren Court and the Pursuit of Justice (New York: Hill and Wang 1998), 15, 32–52, 61–62, 65–73, 83–95, 106–111; G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (New York: Oxford University Press 2007), 305–316. The name “Warren Court” comes from Earl Warren who served as the Chief Justice of the Supreme Court from 1953 to 1969. In many ways, he was the leader of the Court and its liberal icon in the 1960s. 34 Roe v. Wade, 410 U.S. 113 (1973); Horwitz 1998, supra n. 33 at 4. In Roe, the Court invalidated laws criminalizing abortion during the first trimester of pregnancy. The case is still one of the most controversial decisions of the Supreme Court. 35 Patterson 1996, supra n. 1 at 568. 36 Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books 1993), 302. 37 Van Gosse, Postmodern America: A New Democratic Order in the Second Gilded Age, 5–7, in Gosse and Moser (eds.) 2003, supra n. 31 at 1–36; Richard Moser, Was it the End or Just a Beginning? Ameri- can Storytelling and the History of the Sixties, 37, in Gosse and Moser (eds.) 2003, supra n. 31 at 37–51; Levitt 1984, supra n. 30 at 9; Cantor 1978, supra n. 16 at 222–226.

49 jor protests were rare. The cold war also thawed in the 1970s, and although the conflict continued, the all-encompassing ideological tension became more moderate.38 The sixties had a significant impact in academia and intellectual life, which was seen in the 1970s. Critical thought in American academia was rare before the 1960s. The academic counter-culture of the sixties rebelled against traditional values and sought to create a new, critical intellectual establishment,39 but it was not until the 1970s that a broad critical tradition emerged. For instance, Marxism made its way into American scholarship in the 1960s, but it was widely contested and was often a disadvantage in academic competition. In the 1970s, however, Marxism became a more common form of critical scholarship.40 The New Left found a new home in academia and adopted neo-Marxism as its method of criticism.41 The rise of Marxist scholarship also encouraged conflicts within the universities, which became divided. The gap between the liberals and the conservatives that was so immense within society also became marked within the universities, as the scholars who identified themselves with the radicals sought to create new theories and fields of research to criticize and surpass the academic tradition. The two decades of the 1960s and 1970s were remarkable, indeed. The United States experienced a revival of its left after the politically conservative period of the fifties, but the radicalism faded slowly at the end of the decade. The war raged for over a decade in Asia, and it was hated around the globe and ignited unexampled protests everywhere. Liberalization of society had begun in the fifties and continued at an accel- erating scale in the 1960s, but at the beginning of the seventies, the problems of the poor and the minorities persisted. Although social radicalism faded, critical scholarship of the 1960s and the 1970s continued the radical project in the universities. Neverthe- less, radicalism was a counter-culture, even if it became more popular and influential. The majority were not campus radicals, leftists, or social critics and, moreover, the majority supported the Vietnam War till the late 1960s and voted for Nixon in 1968. Thus, despite the fact that the 1960s did change society considerably, the liberal and pro- social-justice tendencies were currents of criticism.

38 Schulman 2001, supra n. 28 at 6, 42–52, 54–72, 159–189, 194–205. 39 Lewis Perry, Intellectual Life in America: A History (New York: Franklin Watts 1984), 417–424. 40 Russell Jacoby, The Last Intellectuals: American Culture in the Age of Academe (New York: Basic Books 1987), 130–141; Bertell Ollman & Edward Vernoff, Introduction, 1–6, in Bertel Ollman & Edward Vernoff (eds.), The Left Academy: Marxist Scholarship in American Campuses (New York: McGraw- Hill 1982), 1–8. For the rise of Marxist scholarship in various disciplines in general, see the articles in Ollman & Vernoff (eds.) 1982. 41 Diggins 1992, supra n. 20 at 289; Levitt 1984, supra n. 30 at 5, 118–126.

2 Alternative legal scholarship and critical lawyers of the 1960s

2.1 Introduction

In this section I will analyze some currents of alternative legal scholarship of the 1960s and 1970s in order to reconstruct the context in which the Critical Legal Studies movement (CLS) emerged, and to bridge the gap between legal realism and CLS. As we saw, realism lost much of its prestige in the postwar years, but this does not mean that there was no alternative legal scholarship before the 1970s. I will demonstrate that there was no unanimity on legal thought, and that alternative legal scholarship emerged as a counter force to the tradition that remained mostly doctrinal and emphasized rationality and neutrality. However, the alternative jurisprudential movements of the 1960s only rarely challenged the basis of law or legal scholarship, or society. The field of jurisprudence was far from simple in the 1960s. I will examine this complex situation in the following sections. First, I shall examine the nature of the legal thought of the 1960s. As will be shown, there was mainstream thought, but there was also serious disagreement regarding it. Second, I will briefly explore the alternative legal scholarship. The “schools” of jurisprudence analyzed here are political jurisprudence, law and development, and law and society respectively, which reflected the intellectual and social changes of the postwar decades. Political jurisprudence was a diversified and nuanced movement which applied political and behavioral sciences to legal research. The law and development movement related to the development mission in the third world and investigated law in different cultures, thus contributing to the cultural and structural understanding of law. The law and society movement focused on law in its social context and was important in the development of interdisciplinary and sociological jurisprudence. These movements encouraged legal studies beyond doctrinal analysis with the application of social sciences. They also developed a social theory of law that could bridge the gap between law in books and law in action. In a certain sense, they paved the way to a more critical legal scholarship, and the last two particularly had a more or less direct relationship with it. Furthermore, in the last sub-section I will point out that some lawyers of the 1960s also adopted critical and even radical perspectives on their profession. In general, then, there was a widespread dissatisfaction within the legal profession with the tradition and various alternative ways to practice the profession were sought. The movements dealt with below were of course much more diversified and nuanced than the descriptions indicate, but my purpose is to analyze the general situation. In addition to examining the main currents of alternative legal scholarship, I will clarify the context of the development of CLS. I will demonstrate that the radical critical legal scholarship grew up amid a legal crisis, but efforts to alter the fundamental basis of the profession were rare. I will show that many of the realist insights survived the

51 postwar retreat from extreme realism, and that the state of legal scholarship was complicated and far from formalist. CLS developed in a kind of consensus in which the realist notions were domesticated and where radical notions of law were largely neglected.

2.2 Neutral principles and the dynamics of legal reasoning: A prelude to criticism

American jurisprudence needed revitalization after the Second World War. Realism had dethroned classical legal thought in the inter-war years, but after the war realism was in a crisis. The postwar era witnessed a revival of reasoned theory on judicial decision- making and, during the 1950s, jurisprudence known as the process theory, or reasoned elaboration, arose. This theory stressed the rationality of the legal process and the fact that judicial decisions ought to be reasonably elaborated in order to guarantee just outcomes and the maintenance of the rule of law.42 At the heart of reasoned elaboration was the process through which judicial decisions were reached. Its essential elements were principled and reasoned decision-making, judicial restraint, technical and professional abilities in reasoning, and an emphasis on strict separation of state powers, but it nevertheless encouraged the interpretation of law in context.43 Besides meeting the social and jurisprudential challenges, reasoned elaboration was also a response to the liberalism of the postwar Supreme Court. A problem of legal scholars was that the decisions appeared morally just but “jurisprudentially unsatisfacto- ry.”44 Thus, an important task was to define rational boundaries for judicial review. In 1958, Learned Hand published his lectures on constitutional adjudication in which he endorsed strict judicial restraint and argued that the courts should not intervene in the business of the legislator.45 In a response that was to become the best-known expression of reasoned elaboration, Herbert Wechsler developed his theory of neutral principles that permitted judicial review if it occurred according to neutral reasoning and an analysis of constitutional law that would transcend contemplation on the results of the deci-

42 G. Edward White, The Path of American Jurisprudence, 124 University of Pennsylvania Law Review 1212, 1246–1249 (1976); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press 1995), 233–241; Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press 1995), 33–36; Anthony Sebok, Legal Positivism in American Jurisprudence (Cambridge: Cambridge University Press 1998), 113–138. Process theory was not an invention of the postwar years but an older tradition in American jurisprudence. (Duxbury 1995, id. at 205– 206, 298.) Nonetheless, it attracted much more attention after the war. 43 G. Edward White, The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 Virginia Law Review 279, 286–291 (1973); Michael Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts, 71 Boston University Law Review 609, 619–623 (1991); Richard H. Fallon Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vander- bilt Law Review 953, 957–958, 964–966 (1994); Sebok 1998, supra n. 42 at 138–159, 176–177. 44 Duxbury 1995, supra n. 42 at 266. 45 Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (Cambridge, Massachusetts: Harvard University Press. 1958), 1–30, 56–77.

52 sion.46 The purpose of neutral principles was to base judicial decision-making on rational grounds so that decisions would appear neutral and objective without the personal input of the judge. Wechsler’s article was followed by an intense debate.47 While many scholars accepted the theory to a certain extent,48 many also criticized it. Among the fiercest critics were Arthur Miller and Ronald Howell, who argued that neutral principles were a traditional way to mask the arbitrary nature of judicial decision-making, which was always affected by values and considerations on the result. Therefore they endorsed a teleological jurisprudence that would focus on the results rather than doctrine because it was “more useful to search for the values that can be furthered by the judicial process than for allegedly neutral or impersonal principles which operate within that process.”49 Mil- ler and Howell represented the post-realist jurisprudence that paid attention to the policy implications of law.50 They did not like the formalist tone of neutral principles that neglected the aspects of policy under legal adjudication. Whereas Wechsler was arguing for the rationality of principle and doctrine, his realist critics were denying the possibility of neutrality of principle and arguing for the rationality of policy and consequence. The controversy over neutral principles reflected the conflicting views of adjudication the legal scholars espoused in the early 1960s. Those who criticized the concept of

46 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review 1–35 (1959). Anthony Sebok has argued that Wechsler’s theory was a conservative interpretation of reasoned elaboration and has thus given a conservative character to the whole theory. Moreover, the theory of Wechsler gained the attention it did because of its critical review of the civil rights decisions. (Sebok 1998, supra n. 42 at 180, 183. See also Duxbury 1995, supra n. 42 at 267–268.) The creative and understanding aspect was thus more pronounced in process theory than in neutral principles, but it is difficult to define every detail of the theory. (For differences in interpretation of the theory, see, e.g., Wells 1991 supra n. 43 at 627–628, 641–642, and compare to Fallon 1994, supra n. 43 at 973 n. 85, n. 86.) 47 Barry Friedman, Neutral Principles: A Retrospective, 50 Vanderbilt Law Review 503, 507–530 (1997); Sebok 1998, supra n. 42 at 179–199 48 Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 University of Pennsylvania Law Review 1, 5 (1960); Henry M. Hart, The Time Chart of the Justices, 73 Harvard Law Review 84, 99, 125 (1959); Erwin N. Griswold, Of Time and Attitudes ─ Professor Hart and Judge Arnold, 74 Harvard Law Review 81, 88 (1961); Louis Henkin, Some Reflections on Current Constitutional Controversy, 109 University of Pennsylvania Law Review 637, 652–655 (1961). Pollak, for instance, accepted that decisions ought to be based on neutral principles but disagreed as to whether the civil rights decisions Wechsler criticized were incompatible with the idea. (Pollak 1960, id. at 2, 5.) Later, however, Pollak turned to criticize the concept of neutral principles. (Louis H. Pollak, Constitu- tional Adjudication: Relative or Absolute Neutrality, 11 Journal of Public Law 48, 61 (1962).) Wechsler did not criticize the decisions but the way they were reasoned. Henkin, too, argued that the civil rights cases were, in fact, neutrally reasoned. (Henkin 1961, id. at 653–654.) Hart and Griswold were writing about constitutional adjudication in general and both called for rational and neutral decision-making, while only Hart referred to Wechsler’s article. 49 Arthur S. Miller and Ronald F. Howell, The Myth of Neutrality in Constitutional Adjudication, 27 University of Chicago Law Review 661, 661–664, 671–672, 684, 690–693 (1961), quotation at 661. Pur- posive jurisprudence was not “a device to provide the answers to a given set of circumstances. Rather, it is a method ─ a mode of inquiry, a way to approach constitutional questions.” (Id. at 693.) It is interesting that in Sweden, Ekelöf was also developing a teleological jurisprudence in the early 1950s. 50 See Harold D. Lasswell, and Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale Law Journal 203–295 (1943). Miller and Howell wrote that they were influenced by McDougal’s literature. (Miller and Howell 1961, supra n. 49 at 663, 690–692.)

53 neutral principles argued that the theory either ignored the social effects of law51 or could not take into account the complex context of judicial decision-making.52 They noted that legal cases sometimes involved such important civil rights problems that they required contemplation on values and policies and could not be left to simple logic,53 and that principled decision-making was not effective in protecting constitutional rights.54 The old realist Charles Clarke and David Trubek, a contemporary sociological legal scholar, argued that blind faith in neutrality mystified judicial decision-making and stabilized it into a conservative force. Therefore, in order to make law evolve according to social change, the judges should openly contemplate values and policies.55 Scholars more favorable toward the idea of neutral principles argued that since judicial decision-making was supposed to be strictly principled and restrained in order to avoid arbitrary decisions,56 principled decision-making was the only way to guarantee the legitimacy of the courts.57 The disagreement as to the nature of the judicial process was evident. The critics of neutral principles thought that contemplation on the factual social circumstances guaranteed that decisions would be socially just, whereas those who favored principled decision-making opined that law dictated what was just and the meddling of the courts could only produce arbitrary decisions. The debate also reflected scholarly views on constitutional decision-making. If the Supreme Court was viewed, as Martin Shapiro did, “as part of the American political process, rather than as a unique body of impervious legal technicians above and beyond the political struggle,”58 then judicial decision-making ought to be understood in its political context.59 As will be seen in the following sections, in the 1960s scholars began to develop theories of judicial decision-making that would pay due regard to its context to an increasing extent. Legal scholarship in general became more socially oriented. The debate on neutral principles pointed out that the legal profession was divided regarding legal reasoning and there were differing views with respect to legal theory. The division between traditional scholars and scholars searching for new approaches was also obvious. The proponents of neutral principles emphasized the importance of process while the critics were more concerned about the substance. The

51 Eugene V. Rostow, American Legal Realism and the Sense of the Profession, 34 Rocky Mountain Law Review 123, 138 (1962). 52 Thurman Arnold, Professor Hart’s Theology, 73 Harvard Law Review 1298, 1310─1313, 1317 (1960). 53 Addison Mueller and Murray L. Schwartz, The Principle of Neutral Principles, 7 UCLA Law Review 571, 587–588 (1960). 54 J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 Harvard Law Review 769, 799–803 (1971). 55 Charles E. Clark and David M. Trubek, The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition, 71 Yale Law Journal 255, 271, 275–276 (1961). 56 Griswold 1961, supra n. 48 at 92–93; Henkin 1961, supra n. 48 at 654–655. 57 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Indiana Law Journal 1, 4, 6 (1971). 58 Martin Shapiro, Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (London: The Free Press of Glencoe, Collier-Macmillan 1964), 15. 59 Martin Shapiro, The Supreme Court and Constitutional Adjudication: Of Politics and Neutral Princi- ples, 31 George Washington Law Review 587, 603–605 (1963).

54 question was not about the typical formalist-realist controversy. Scholars of reasoned elaboration were well aware of the fact that judges made law but they wanted to create definite boundaries for it.60 They sought to “incorporate legal realist intellectual sophistication into the mainstream of American legal discourse while avoiding the most corro- sive aspect of the realist message ─ that there was no analytically defensible way to distinguish law from politics.”61 Even Wechsler admitted that law evolved within society, and thus Theodore Becker argued that the critics had “cast Wechsler into a traditionalist form, where he does not belong.”62 Reasoned elaboration was, of course, a traditional response to radical realism and an effort to underline the rational aspects of legal reasoning. It was neither formalism nor realism in any extreme form. Nevertheless, virtually every legal scholar in the 1960s acknowledged the personal input of the judge in the development of law, and disagreement arose as to whether this was to be principled and restrained or open. There were scholars who were more realist or formalist, although the extremes were rare. In any event, process theory could be characterized as the dominant form of legal thought of 1950–1980.63 American jurisprudence of the 1960s was more about process than substance and more about reason and principle than value and policy, and at the end of the decade scholars were still trying to define the boundaries of legal discretion.64 As noted, however, the legal profession was far from unanimous on the place of neutrality and rationality in legal reasoning and, as will be noted in the following sections, the 1960s brought various forms of alternative legal scholarship that challenged the dominance of principle, doctrine, neutrality, and rationality in legal reasoning. It was, nonetheless, this context where the law students of the 1960s were educated. The educational aspect is important. It is a common observation that the legal process school and the anti-leftist atmosphere of the 1950s affected many of those who

60 Sebok 1998, supra n 42. at 118. 61 Gary Peller, Neutral Principles in the 1950s, 21 University of Michigan Journal of Law Reform 561, 567 (1988). 62 Theodore L. Becker, Political Behavioralism and Modern Jurisprudence: A Working Theory and Study in Judicial Decision-Making (Chicago: Rand McNally 1964), 60. Becker argues further that Wechsler, Pollak, and Hart could all be “placed in the realist camp since they accept the necessity of tempering the amorphous, highly abstract principles of law as the times demand.” (Id. at 56.) This seems to be a very moderate conception of realism, since Wechsler particularly denied the analysis of results, which the realists, on the other hand, often stressed. The definition of realism is thus very ambiguous. This also shows that the concept of balanced realism is one of degree, since both Wechsler and Miller could be labeled as balanced realists but no one could argue that they were at the same place within it. 63 It has been argued that the theory lost much of its vitality during the 1960s and early 1970s due to the social activism of the Supreme Court. (Vincent A. Wellman, Dworkin and the Legal Process Tradition: The Legacy of Hart & Sacks, 29 Arizona Law Review 413, 473 (1987).) Yet in 1976 it was claimed that the process theory of Hart and Sacks was the most influential theory not published, and were it to be published, it was a “denial of the equal protection of the laws to confer a law degree on a student who had not been exposed to it.” (J.D. Hyman, Constitutional Jurisprudence and the Teaching of Constitutional Law, 28 Stanford Law Review 1271, n. 70 (1976).) Moreover, it was argued in 1994 that process theory is still the “reigning paradigm” in federal law. (Fallon 1994, supra n. 43 at 954–956, 979.) 64 Elliott M. Abramson, Those Still Elusive Neutral Principles ─ A Further Groping, 7 Duquesne Law Review 245─257 (1969); Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois Press 1976 ).

55 studied then and later became critical scholars.65 Education and mainstream jurisprudence obviously were very conservative and this did disturb those students who yearned for a more critical and reformist perspective on law. The legal profession at large, however, was not unanimously traditional, more critical and realist tones already prevailing in the late 1950s and early 1960s. The leap from reasoned elaboration to critical legal scholarship was not straightforward, but a process which involved the evolution of social awareness as well as the jurisprudential thought. The following sections will illuminate this process in more detail.

2.3 Political jurisprudence

Political jurisprudence was a movement that focused on the behavioral and political aspects of judicial decision-making.66 Although its foundations were laid in the realism of the early twentieth century, studies of political jurisprudence began in the late 1940s, increased during the 1950s and became quite popular in the 1960s.67 The Supreme Court had always been an interesting and controversial topic for American legal scholarship, but only by the fifties did systematic studies on Supreme Court decision-making from the perspectives of social and behavioral sciences and policy analysis gain solid ground.68 The new approach considered judicial decision-making in its political context systematically and with a theoretical basis. Even if earlier scholars acknowledged the connection between politics and the courts, it was not until the postwar years that this connection came to the forefront of the research on the judiciary.

65 James R. Hackney Jr., Legal Intellectuals in Conversation: Reflections on the Construction of Contem- porary American Legal Theory (New York: New York University Press 2012), 6. 66 Political jurisprudence was not a uniform school but a diversified movement with various approaches. According to Nancy Maveety, there were three main methodologies within behavioral judicial research; namely, attitudinal, strategic, and historical-institutional, which all had differing methods and approaches. (Nancy Maveety, The Study of Judicial Behavior and the Discipline of Political Science, 5, in Nancy Maveety (ed.), The Pioneers of Judicial Behavior (Ann Arbor: The University of Michigan Press 2003), 1–51). In this study, however, the term “political jurisprudence” refers to all of the approaches to judicial behavior, because the essentials of the schools were basically the same despite the differences in approach; they all studied the courts as human activity participating in policy-making. The different approaches are dealt with in Maveety (ed.) 2003, id., and see also Glendon Schubert, Academic Ideology and the Study of Adjudication, 61 American Political Science Review, 106–129 (1/1967). 67 Maveety 2003, supra n. 66 at 6–17; Tracy E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 Ohio State Law Journal 1635, 1645–1655 (1998); Joel B. Grossman & Joseph Tanenhaus, Toward a Renascence of Public Law, in Joel B. Gorssman & Joseph Tanenhaus (eds.), Frontiers of Judicial Research (New York: John Wiley and Sons 1969), 3–25. Maveety writes that “C. Herman Pritchett’s benchmark study of the Roosevelt Court in 1948 was the continuation and a culmination of the long-cherished objective of discovering the political values that underlie judicial decisions,” but with new tactics. (Maveety 2003, id. at 8.) It has been noted that realism was highly influential in the American academy when Pritchett began his scholarship on judicial behavior, and that Pritchett himself was a moderate realist. (Lawrence Baum, C. Herman Pritchett: Innovator with an Ambiguous Legacy, 60, in Maveety 2003 (ed.) supra n. 66 at 57–77.) 68 See Policy-making in a Democracy: The Role of the United States Supreme Court: A Symposium, 6 Journal of Public Law 275─508 (1957).

By the mid-1960s, political analysis of the courts was relatively popular and its methods and purposes were more specifically defined. Martin Shapiro, for instance, wrote that political jurisprudence was “essentially an extension of certain elements of sociological jurisprudence and judicial realism, combined with the substantive knowledge and methodology of political science.”69 A prominent scholar of behavioral studies on judicial decision-making, Glendon Schubert noted that the behavioral approach was interested in theoretical realistic jurisprudence and empirical fact gathering, combining these in a scientific manner.70 Political jurisprudence was a mixture of sociological jurisprudence, realism, and new social and behavioral sciences. It thus sought to revise old themes in a modern context. Besides scholarly innovations, political jurisprudence was also a critical enterprise against the establishment. Shapiro wrote that political jurisprudence represented “a revolt against the traditional approach to the Supreme Court through the study of history and Constitutional law”71, although Schubert noted that “[t]here is nothing novel in the idea that the decisions of judges on questions of public policy are strongly influenced by their personal beliefs.”72 Even if the profession at large acknowledged that judicial decision-making was also influenced by other sources than law, the approach was not unanimously accepted, at least not at face value. The critics of the behaviorist approach argued that it drew unconvincing generalizations on judicial decisions and downplayed the role of law.73 Political jurisprudence sought to bring to the forefront of research the notion of political influence on law. The legal profession was aware of this notion but did not want to stress it. Legal scholars were balancing between more and less realist views on legal reasoning and political and social scientists were eager to promote alternative views on legal scholarship. In the pursuit of expanding the methodologies of legal studies, various forms of political jurisprudence became widespread during the 1960s.74 Cross-disciplinary scholarship was making its way into legal research, which meant that legal phenomena were not simply examined from a legal point of view according to the traditional methods, but rather as parts of the society. In Justice in America,75 Herbert Jacob conducted a

69 Martin Shapiro, Political Jurisprudence, 52 Kentucky Law Journal 294, 294 (1964). 70 Glendon Schubert (ed.), Judicial Behavior: A Reader in Theory and Research (Chicago: Rand McNally 1964), 3. In addition, Schubert was not too enthusiastic about the methods of political research because they focused on policy-making and group interests, whereas the behavioral approach he endorsed emphasized the personal characteristics of the judges. (Glendon Schubert, The Political Role of the Courts: Judicial Policy-Making (Glenview Illinois: Scott, Foresman, and Company 1965), 165–183.) 71 Shapiro 1964, supra n. 58 at vii. 72 Schubert 1964, supra n. 70 at 306. In fact, Pritchett had already introduced a similar notion in 1941. See C. Herman Pritchett, Divisions of Opinion among Justices of the U.S. Supreme Court, 1939–1941, 35 American Political Science Review 890, 890 (1941). 73 James L. Blawie and Marilyn J. Blawie, The Judicial Decision: A Second Look at Certain Assumptions of Behavioral Research, 18 The Western Political Quarterly 579–593 (1965). 74 Literature on political jurisprudence up to 1968 as compared to traditional studies on constitutional law is reviewed in C. Herman Pritchett, Public Law and Judicial Behavior, 30 Journal of Politics 480–509 (1968). 75 Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process (Boston: Little, Brown and Company 1965).

57 political analysis of the administration of justice in America in a text-book manner, but instead of simply describing the system he also placed it in its social and political context. Thus, the reader learned about the social and political aspects of the legal system, not simply about its normative function. At the heart of political jurisprudence was the understanding that courts were not simply deciding legal conflicts. The courts were also political arenas in which one could pursue one’s interests and power,76 and there was no judicial objectivity because courts, like legislatures and executives, responded to social pressures, although indirectly and to a lesser degree.77 Therefore, judges were often analyzed on the basis of their past decisions by collecting quantitative data to predict their decisions,78 scaling them on a liberal-conservative axis,79 or analyzing their opinions as value-responses to the social stimuli the cases brought up.80 The purpose was to understand the ideological and political values and attitudes of the judges according to how they responded to the cases. According to political jurisprudence, one had to go beyond the written opinions in order to understand judicial decisions. The problems of political jurisprudence became more evident as the scholarship expanded. Even if it was noted that the attitudes of the judges were difficult to infer from the decisions, studies of political jurisprudence were regarded as useful.81 There were various approaches to judicial behavior with both benefits and problems.82 Judicial decisions were reviewed, for instance, against the social background of the judges,83 according to behavior as members of groups,84 according to game theories,85 and as responses to certain combinations of facts.86 The various aspects sought to establish a distance from the traditional method and extend the scope of judicial research with social sciences in the background of the decisions. But legal scholars were not convinced

76 Schubert 1965, supra n. 70 at 75. 77 Jacob 1965, supra n. 75 at 4–14. 78 Stuart Nagel, Predicting Court Cases Quantitatively, 63 Michigan Law Review 1411–1422 (1965). 79 Glendon Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946– 1963 (Evanston: Northwestern University Press 1965). The name of the book was originally intended to be Liberal Mind but it was changed because the purpose was not to study political ideology and the mind of everyman, but rather a special mind and an aspect of political ideology. Thus the name was changed to stress the fact that the study concerned judicial behaviour in particular. (Glendon Schubert, The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology (New York: Oxford University Press 1974), 17.) 80 David J. Danelski, Values as Variables in Judicial Decision-Making: Notes Toward a Theory, 19 Van- derbilt Law Review 721–740 (1966). 81 Joseph Tanenhaus, Cumulative Scaling of Judicial Decisions, 79 Harvard Law Review 1583, 1590– 1594 (1966). 82 See the symposium on social science approaches to the judicial process in 79 Harvard Law Review 1551─1628 (1966). There the various methods were critically reviewed with the notion that they, nevertheless, were useful in understanding the dynamics of the judicial process. 83 See Joel B. Grossman, Social Backgrounds and Judicial Decision-Making, 79 Harvard Law Review 1551–1564 (1966). 84 See Walter F. Murphy, Courts as Small Groups, 79 Harvard Law Review 1565–1572 (1966). 85 See Samuel Krislov, Theoretical Attempts at Predicting Judicial Behavior, 79 Harvard Law Review 1573–1582 (1966). 86 See Fred Kort, Quantitative Analysis of Fact-Patterns in Cases and Their Impact on Judicial Decisions, 79 Harvard Law Review 1595–1603 (1966).

58 of the usefulness of the social sciences in analyzing the judicial process. The legal philosopher Lon Fuller criticized these approaches, arguing that since they could not explicate the motives behind the written decisions, the scholars were merely imposing their own views on those of the judge.87 For legal scholars with a traditional perspective, it seemed absurd to argue simply on the basis of the decisions that they were motivated by extra-legal factors. The difference between the legal and non-legal perspective on the judiciary was that the former stressed normative aspects and doctrine, whereas the latter stressed political and social aspects. In any event, legal scholars also endeavored to understand the judicial process beyond doctrine. Theodore Becker, a scholar of political jurisprudence with a more legal perspective noted that the “legal scholar tends toward a far more normative posture than the political scientist-behavioralist.”88 Since Becker also had a legal education, he sought to combine aspects of political jurisprudence with traditional jurisprudence89 because he opined that the combination was also useful for lawyers in understanding the judicial process.90 Political jurisprudence was mostly an enterprise of scholars of political and behavioral sciences, but the cross-disciplinary approach was gaining more ground. When legal scholars became acquainted with the movement, they took the analysis closer to the legal perspective instead of emphasizing simply the behavioral and political aspects. Even scholars of political science noted that political factors could not directly explain the decisions, and the scholarship itself was placed under scrutiny.91 Jacob wrote that there was no certainty regarding judicial discretion, “but when judges consistently favor one principle over another, it becomes clear that they are employing their own values and attitudes as well as their expertise.”92 According to Shapiro, courts were supplementary policy-makers who made policies within the context of law.93 Scholars knew that there was more to judicial decision-making than simply law, but the problem concerned the way the extra-legal factors and their impact was to be examined and how far they were to be stressed, as it did in the neutral principles debates. Traditional scholarship realized the problem but sought to rationalize legal reasoning as far as possible, whereas the alternative scholars stressed the irrational aspects.

87 Lon L. Fuller, An Afterword: Science and the Judicial Process, 79 Harvard Law Review 1604, 1619– 1622 (1966). As Fuller also noted, the scholars of political jurisprudence were aware of the problems their methods included. 88 Becker 1964, supra n. 62 at 40. 89 See id. 90 Theodore L. Becker, The Fall and Rise of Political Scientific Jurisprudence: Its Relevance to Contem- porary Legal Concerns, 45 North Carolina Law Review 642, 643, 646–647, 653–654, 657–568 (1967). 91 Richard S. Wells & Joel B. Grossman, The Concept of Judicial Policy-Making: A Critique, 15 Journal of Public Law 286–310 (1966); Sidney S. Ulmer, The Dimensionality of Judicial Voting Behavior, 13 Midwest Journal of Political Science 471–483 (1969). 92 Herbert Jacob, Editor’s Introduction, xiv, in Herbert Jacob (ed.), Law, Politics, and the Federal Courts (Boston: Little, Brown and Company 1967), ix–xx. 93 Martin Shapiro, The Supreme Court and Administrative Agencies (New York: The Free Press 1968), 21–22.

As the sixties progressed, political jurisprudence began to resemble balanced realism more than the behaviorist determinism of its early phases. The scholars argued that since qualitative or quantitative analysis alone missed certain elementary aspects, research needed both of the approaches.94 Furthermore, court decisions had to be examined in context,95 and not simply according to the stare decisis as the taught tradition did.96 In short, one was not to study what the judges ought to do but what they were most likely to do.97 Although the approaches varied,98 political jurisprudence aimed at understanding law and court decisions in the context of the society and politics within which they functioned. This was important during the time of social turbulence and the controversial court-cases, because these provided the scholars with interesting topics to deal with. The recent controversial decisions of the Supreme Court and the public opinion on them increased interest in studying the context of the decisions. Scholars who tackled the problems argued that public opinion regarding the judiciary mattered more than the opinion of professionals.99 Studies showed relatively low confidence in the Supreme Court;100 confidence in the Court as such but disrespect for particular cases,101 and the fact that people of high social status appreciated the Court more than the lower classes.102 The impact of the rise of empirical and behavioral sciences was obvious in the studies, but so were the socioeconomic changes that increased the need to have a grass- roots perspective on elite institutions. As the prestige of legal doctrine and principle diminished in the late 1960s, studies regarding elite institutions such as the Supreme Court began to pay more attention to the impact the institutions had on society and the way people understood them. Reflecting the importance of social and cultural elements, as well as the internationalization of scholarship, comparative studies on judicial behavior became more

94 J. Woodford Howard Jr., On the Fluidity of Judicial Choice, 62 American Political Science Review 43– 47, 55–56 (1968). 95 Joel B. Grossman, A Model for Judicial Policy Analysis: The Supreme Court and the Sit-In Cases, 422–423, in Grossman and Tanenhaus (eds.) 1969, supra n. 67 at 405–460. 96 Shapiro 1968, supra n. 93 at 67–73. See also Martin Shapiro, Toward a Theory of Stare Decisis, 1 Journal of Legal Studies 125–134 (1972). 97 Reed C. Lawlor, Personal Stare Decisis, 41 Southern California Law Review 73–118 (1967). 98 See, e.g., Lee Epstein and Jack Knight, Walter F. Murphy: The Interactive Nature of Judicial Decision Making, 206–207, in Maveety (ed.) 2003, supra n. 66 at 197–227. The authors analyze the differing approaches in the social-psychological paradigm to distinguish it from strategic analysis, writing that the “approaches differ from one another at the margins. But because they draw from the same paradigm (social-psychological), they are complementary in their core beliefs about the way people make decisions.” (Id. at 207.) 99 Joel B. Grossman & Richard S. Wells, Constitutional Law and Judicial Policy-Making (New York: John Wiley & Sons 1972), 827. 100 Kenneth M. Dolbeare, The Public Views the Supreme Court, 196–198, in Jacob (ed.) 1967, supra n. 92 at 194–212. 101 Walter F. Murphy & Joseph Tanenhaus, Public Opinion and the United States Supreme Court: A Pre- liminary Mapping of Some Prerequisites for Court Legitimation of Regime Changes, 286–294, in Gross- man and Tanenhaus (eds.) 1969, supra n. 67 at 273–303. 102 Herbert Jacob, Judicial and Political Efficacy of Litigants: A Preliminary Analysis, 262, in Grossman and Tanenhaus 1969 (eds.), supra n. 67 at 255–271.

60 common in the late 1960s.103 Besides creating international connections and networks and increasing their academic credibility, scholars sought to point out that studies on judicial behavior were common elsewhere too and could therefore be endorsed within the American universities, in addition to the fact that comparative data could be used in legal politics. Comparative studies also reflected the rise of anthropology and cultural studies in political and legal scholarship. Scholars with alternative perspectives on legal problems became more interested in their specific meaning in an international context. The expansion of the studies to the comparative field also brought up the disciplinary controversies. Schubert, for instance, wrote that contributions of legal sociology by legal scholars had not yet been noteworthy either to law or to sociology, although this was the case in other countries.104 Although legal scholars were becoming more interested in the sociology of law in the late 1960s, scholars of political and behavioral sciences argued that they carried the burden of the new discipline. The stakes here were the scholarly schism between legal scholars and political scientists who sought to downplay the role of legal scholars in modern research by pointing out their lag in sociological studies on law and emphasizing their own success in the field. As the scholarship was growing in the early 1970s, its significance to legal scholarship increased.105 The foreword of a 1973 symposium on the subject noted that “[u]nlike legal scholars, who have approached the judicial role from a normative perspective, political scientists have sought to understand the judge as a behavioral organ- ism whose input has a discernible effect on the law.”106 Thus, it was argued, since adjudication was also law-making, and since there was discretion allowing various factors to affect the decision-making,107 studies on the impact of extra-legal and personal factors could bring new perspectives on the courts.108 Recent research had shown that certain characteristics of judges explained the variability in criminal sentencing109 and that the influence of political attitudes was an ordinary aspect of judicial discretion.110 Some judges, however, criticized political jurisprudence, arguing that it was uncertain specu-

103 See, e.g., Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of the Unit- ed States, England, and France (New York: Oxford University Press 1962); Glendon Schubert & David J. Danelski, (eds.), Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in the East and West (New York: Oxford University Press 1969); Grossman and Tanenhaus 1969 (eds.) supra n. 67 at 43–195; Theodore L. Becker, Comparative Judicial Politics: The Political Functionings of Courts (Chicago: Rand McNally 1970). 104 Glendon Schubert, From Area Study to Mathematical Theory, 5, 11, in Schubert & Danelski (eds.) 1969, supra n. 103 at 3–17. 105 David J. Danelski, Toward Explanation of Judicial Behavior, 42 University of Cincinnati Law Review 659, 666 (1973). And see the symposiums in 1971 Washington University Law Quarterly 169─383 and 42 University of Cincinnati Law Review 589─677 (1973). 106 Empirical Approaches to Judicial Behavior, 42 University of Cincinnati Law Review 589, 589 (1973). 107 Beverly Blair Cook, Sentencing Behavior of Federal Judges ─ Draft Cases of 1972, 42 University of Cincinnati Law Review 597, 597–599 (1973). 108 Harry Kalven Jr., Toward a Science of Impartial Judicial Behavior, 42 University of Cincinnati Law Review 591, 592–593 (1973). 109 Cook 1973, supra n. 107 at 630–633. 110 Sheldon Goldman, Conflicts on the U.S. Courts of Appeals 1965–1971: A Quantitative Analysis, 42 University of Cincinnati Law Review 635, 656–657 (1973).

61 lation,111 and distorted the general image by concentrating on unanimous decisions.112 Judges, of course, had a different perspective on the issue, because they were the subjects of the studies and felt that their profession was being ridiculed. Although they were aware of the discretion of adjudication, they regarded themselves as as loyal to the law as possible. Political jurisprudence was a cross-disciplinary, court-centered jurisprudence, and it reflected the conflict of the 1960s between the traditional and the alternative approach to legal reasoning. Its basic tenets were that the courts were political institutions serving particular functions in society113 and the presumption was that the personality of the judge affected the decisions.114 Studies on judicial roles showed that the judges differed in their opinions about their role as the interpreters of law. In these survey studies, some judges replied that they would make law when it was appropriate while others saw that they ought merely to interpret the law.115 While Becker noted that the studies had pointed out merely a “scant correspondence between any judicial role position and any general political orientation,”116 studies on the political background of the judges became more common nonetheless, and it was argued that there was a connection between political attitudes and judicial roles.117 Political jurisprudence rose to prominence in the late forties, gained more support during the fifties, and established its position among the schools of judicial research during the sixties. It was a part of the rise of cross-disciplinary118 research and the “behavioral revolution” that occurred in American political sciences in the 1950s and 1960s.119 It focused on the behavior of judges in context, theorized it, and sought empirically to verify the theories by using elements of sociology, psychology, and political science. The purpose was to understand the judicial process and to predict the outcome of legal cases by defining the theoretical framework in which the judges operated and made their decisions. It also responded to the controversial decisions of the Supreme Court and to the expanding demands of the people to participate in public affairs. Be-

111 Marvin E. Frankel, Comments of an Independent, Variable Sentencer, 42 University of Cincinnati Law Review 667, 668–671, and n. 8 (1973). 112 Henry J. Friendly, Of Voting Blocs, and Cabbages and Kings, 42 University of Cincinnati Law Re- view 673, 673–674 (1973). 113 Grossman & Wells 1972, supra n. 99 at 3–4; David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making (San Francisco: W. H. Freeman and Company 1976), 4–9, 70–78. 114 See, e.g., Schubert 1974, supra n. 79 at 18–20; Rohde & Spaeth 1976, supra n. 113 at 137–155. 115 Kenneth N. Vines, The Judicial Role in the American States: An Exploration, 467–477, in Grossman & Tanenhaus 1969 (eds.), supra n. 67 at 461–485; Thomas D. Ungs & Larry R. Baas, Judicial Role Per- ceptions: A Q-Technique Study of Ohio Judges, 6 Law & Society Review 343, 349–363 (1972); John T. Wold, Political Orientations, Social Backgrounds, and Role Perceptions of State Supreme Court Judges, 27 Western Political Quarterly 239, 240 (1974); J. Woodford Howard Jr., Role Perceptions and Behavior in Three U.S. Courts of Appeals, 39 Journal of Politics 916, 918–293 (1977). 116 Becker 1970, supra n. 103 at 51. (Emphasis original.) 117 Wold 1974, supra n. 115 at 241, 246–247; Howard 1977, supra n. 115 at 923–925. 118 Roger E. Backhouse and Philippe Fontaine, Introduction, 12, in Roger E. Backhouse and Philippe Fontaine (eds.), The History of the Social Sciences since 1945 (Cambridge: Cambridge University Press 2010), 1–15. 119 Robert Adcock and Mark Bevir, Political Sciences, 74–79, in Backhouse and Fontaine (eds.) 2010, supra n. 118 at 71–101.

62 cause of these impulses, political jurisprudence was more a scholarly methodology than reality, but it grasped parts of the contemporary opinions and criticism of the functions of the courts. In general, political jurisprudence endorsed and encouraged the notions of sociological jurisprudence and realism in judicial studies. It sought to define theories of judicial decision-making that could transcend the normative approach of traditional jurisprudence and then test these theories in practice in order to make them scientific. It was a response to the postwar changes in scholarship and society, and sought to participate in jurisprudential controversies and hence to legitimize its position in the field between law and political science. The aim of the studies was to describe and explain the human and political aspects of judicial decision-making. By going beyond the written opinions and emphasizing the factors behind them, new concepts of courts and judicial decision- making were needed. The concepts came from the realists, but in the sixties the legal profession was not as ready as the political scientists to adopt extremist views on the courts. By adapting the realist agenda in the contemporary research, the scholars of political jurisprudence became pioneers of judicial behavior and contributors to the sociology of law. Legal scholars were also struggling with the problem of how much realism there ought to be in legal scholarship in the 1960s. They, too, were to an increasing extent adopting the methods of realism in their scholarship. Their concerns, however, had a different emphasis. As Maveety notes, legal scholars paid relatively little attention to political jurisprudence because of its “law avoidance”.120 The realism of the legal profession of the 1960s was not extreme, and although realist legal scholars considered the literature of political jurisprudence interesting,121 they nevertheless considered behavioralism as “half-Freud and half-fraud.”122 As legal scholars were elaborating their own theories of judicial-decision making in the 1960s, the literature on behavioral and political sciences began to seem ever more determinist and absurd. Moreover, political jurisprudence was court-centered. Its focus was simply on judicial decision-making, which made its perspective relatively narrow and hence not very interesting to legal scholars who needed a more comprehensive theory of law and society. Thus, although political jurisprudence contributed to the studies of the courts, its significance for legal scholarship remained slight. Legal scholars looked elsewhere for influences for new theories, and to these we shall now turn.

120 Maveety 2003, supra n. 66 at 18. 121 Arthur Selwyn Miller, Book Review [Judicial Behavior], 43 Texas Law Review 996, 998 (1965). 122 Arthur Selwyn Miller, The Law School as a Center for Policy Analysis, 47 Denver Law Journal 587, 590 (1970).

2.4 The Law and Development movement: A cultural approach to law

Law and development was a movement relating to the American efforts to aid the development of the third-world countries in the 1950s and 1960s. The scholarship matured in the 1960s when legal scholars began to take a great role in the process. The purpose of the project was to support social and economic development through improving the legal institutions of the third-world countries, and the purpose of the scholarship was to investigate the potential for social development through law. What began as an optimistic effort at improvement turned into skepticism in the late 1960s, and by the early 1970s the majority of the law and development scholars realized that their project was in crisis. Rising in the wake of the postwar reconstruction and Cold War atmosphere, law and development was an image of its time; in part honest humanitarian assistance, legal missionary work, international power struggle, and cultural imperialism.123 At the center of law and development was an instrumental conception of law. Its focus was on the possibilities of law as a tool in promoting social and economic development.124 As the events of the 1960s weakened optimism for improvement, scholars also became more critical of their efforts and particularly of the formalist conception of law. They noted that law had long been a tool of imperialism, and since Western legal institutions were difficult to manage in foreign countries, westernized law was a more stabilizing than stimulating factor.125 Even if the development perspective was more optimistic, the difficulties of development without fundamental reforms in the legal system and education were acknowledged.126 There were also difficulties in making the changes in formal law effective in legal practice, besides the fact that there had to be a balance between legal reform according to the foreign model and indigenous law.127 Experience proved that the potential of law as an instrument of change was rather vague and facing particular difficulties in foreign cultures. Even the less critical views noted the differences between the legal systems of different societies, which meant that law was to be understood in its cultural and social context. Changes in legal institutions were not possible without fundamental changes in society, and Western law could not be adapted to countries with fundamentally different social and cultural structures. Scholars realized that transplanting law was not simple and good intentions often led to negative outcomes, which made them reconsider the basis of their task.

123 James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madi- son, Wisconsin: The University of Wisconsin Press 1980), 6–12, 27–52, 231–235, 282–288. 124 Law and development literature is reviewed in Elliot M. Burg, Law and Development: A Review of the Literature & a Critique of “Scholars in Self-Estrangement”, 25 American Journal of Comparative Law 492–530 (1977). See also Gardner 1980, supra n. 123, in which both the project and the scholarship are analyzed, although from a critical perspective. 125 Lucian W. Pye, Aspects of Political Development (Boston: Little, Brown and Company 1966), 113– 125. 126 Kenneth L. Karst, Law in Developing Countries, 60 Law Library Journal 13–20 (1967). 127 Marc Galanter, The Modernization of Law, 172–179, in Myron Weiner (ed.), Modernization: The Dynamics of Growth (Voice of American Lectures 1966), 167–179.

The mixed motives of both the aid and the scholarship caused further problems in the enterprise. While acknowledging the problems of development but encouraging the research nonetheless, Seidman and Thome wrote in the late 1960s that there were serious business interests in the third world which also affected the scholarship because, as they argued, “the researcher usually hopes the results will contribute to the solution of actual problems.”128 The scholarship was advanced more in the universities and dealt with important issues, but it also faced problems that drove the scholars to criticize and to elaborate their work. The problems of cultural differences were indeed pressing. This became obvious once the scholars began consistently to contemplate the conception of legal culture. One of the most promising young scholars of sociological jurisprudence, Lawrence Fried- man, wrote that if the legal scholar “believed completely in the cultural relativity of law, he would know he had no business abroad.”129 There were ambiguous concepts such as “development”, “legal system,” and “modern,” the meaning of which was uncertain. Furthermore, scholars had merely assumed the impact of law on society without thorough cultural analysis.130 Here the scholars faced the problem of investigating a particular phenomenon in various contexts. This revealed the importance of the structures within which the law operated, and increased the awareness of the fact that law was the construction of a society rather than something that could be instilled into it. Thus, the concept of legal culture became important. As we saw, anthropology rose to prominence in the postwar years, and hence in the 1960s, together with the problems of law and development, legal anthropology was also attracting more interest.131 Studies on the anthropology of law reflected the notion that different people perceived reality, and law, differently. Law was therefore not to be regarded as formal rules with specific consequences, but rather as something that depended on the structures of the society it was part of. Studies on the law of foreign societies required specific information on that society and culture. This, then, led to the more specific elaboration of the concept of legal culture.132 Scholars began to attend more to the prerequisites of the

128 Robert B. Seidman and Jospeh R. Thome, The Foreign Law Programs: The Wisconsin Idea in a World Context, 1968 Wisconsin Law Review 362, 362–365, quotation at 365. The authors proposed a model for a law and development project that was aware of the problems relating to the enterprise. 129 Lawrence M. Friedman, On Legal Development, 24 Rutgers Law Review 11, 13 (1969). 130 Id. at 11–64. 131 Laura Nader (ed.), The Ethnography of Law (Menasha, Wisconsin: American Anthropological Asso- ciation 1965); Laura Nader (ed.), Law in Culture and Society (Chicago: Aldine Publishing Company 1969). See also Laura Nader, Klaus F. Koch and Bruce Cox, The Ethnography of Law: A Bibliographical Survey, 7 Current Anthropology 267–294 (1966). According to Schubert, legal realism had an idiosyn- cratic tie with legal anthropology but the real influences came from postwar anthropologist ethnog- raphers. (Schubert 1969, supra n. 103 at 5–6.) Critical legal scholars, when they began to apply anthropological methods in their studies, often stressed the importance of legal realism to legal anthropology. (Richard L. Abel, A Comparative Theory of Dispute Institutions in Society, 8 Law & Society Review 217, n. 26 (1973).) The emphasis depends on the interests of the scholar in question, but it seems nonetheless that the influence of legal realism on legal anthropology was not as great as the influence of general anthropology and ethnography. 132 Lawrence M. Friedman, Legal Culture and Social Development, 4 Law & Society Review 29–44 (1969).

65 functioning of law and to the unconscious impacts of law. It also encouraged cross- disciplinary and comparative studies of law because it broadened the perspective on the function of the law. In the early 1970s, law and development scholars became more critical of the possibilities of development and were often either very pessimistic about their scholarship or sought to elaborate their theories.133 Reformers sought to create more nuanced theories that would be more particular about the circumstances of society, expand the distinction between law in books and law in action in the governmental agencies, and place the public in a structural and behavioral context.134 This kind of theory was useful because rules that worked in some legal systems did not necessarily have the same effects in others.135 The problems with development had pointed out that what was needed was a theory of law that was sensitive to the law in action in particular structures. Simple observation was not adequate, a more critical and comprehensive perspective being needed. A devoted law and development scholar, and a future critical legal scholar, David Trubek, took the critique of law and development to a more fundamental level, noting that there was a serious need for a fundamental analysis of law and society. Since law had failed to produce the desired effects, it was rather the social circumstances than law that was to be investigated.136 The failures of the development programs had revealed the inability of law to have an impact on social structures. Rather, Trubek noted, law reflected the social, political, and economic power structures of society and then contributed to their preservation. Law did not produce change but, consciously or unconsciously, protected the existing structures, and the fact that problems were characterized as legal only denied the fact that they also included political questions.137 Trubek’s fundamental analysis of law and society took the structural biases into account. A major problem for the scholars studying law in different cultures was to elaborate a theory of law that would be generally applicable. The realization of the structural connections made the critical scholars examine the construction and manifestation of legal phenomena in different cultures. Thus, by the early 1970s, the attention of critical legal scholars was shifting towards the preconditions of the legal system. The failure of law and development was thus reflected back on the paradigm of law. Trubek and Marc Galanter, both of whom had been disappointed by the experiences in law and development, argued that a reason for the failure was the faith in liberal legalism that underlined the consciousness of the United States. They thought that scholars had uncritically assumed that law could bring social change, even though law

133 See, e.g., the Symposium in 1972 Wisconsin Law Review 684–923. 134 Robert B. Seidman, Law and Development: A General Model, 6 Law & Society Review 311, 316–338 (1972). 135 Robert B. Seidman, The Communication of Law and the Process of Development, 1972 Wisconsin Law Review 686, 697. 136 David M. Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale Law Journal 1, 1–10, 21–22 (1972). 137 Id. at 15, 30–39.

66 in fact had certain economic and political biases and therefore unwanted and undesirable effects.138 The failure was thus more in the consciousness of the legal scholar than in the efforts as such, since, as Trubek and Galanter argued, law and development scholars sincerely believed in liberal legalism, and it took some time to understand this false belief. “Law and development scholars did not, however, create the critical perspective on the social role of law in the United States; they merely responded to it.”139 As will be seen later, there was a crisis of law in the early 1970s, which law and development formed part of. Scholars within the movement came to realize that their work was preconditioned by ideological factors to an extent they scarcely credit. The criticism sought to point out that development itself was an open concept determined by the western consciousness. One of the notions with which law and development was particularly influential was that law and legal ideals were products of a particular society. At a time when former colonies gained independence, western countries sought to provide assistance with benevolent, political, and economic reasons. The hopes were, however, proven false with the continuous failures. At the same pace as the disappointment with the developing mission, the critical consciousness of law spread. Even if law and development did not produce the critical perspective on law, it nevertheless contributed to it. It failed many young leftist scholars140 and encouraged the creating of alternative paradigms to modern law.141 It also contributed to the evolution of legal anthropology, studies on legal culture, comparative legal studies, the structural conception of law, and the notion of law as imperialism. Scholars lost their faith in the neutrality of law and began to observe legal matters in a different way. Critical scholars were set to search for a completely new understanding of law in society.

2.5 The Law and Society movement: A social approach to law

Law and society was a jurisprudential movement that examined law in its social context. Although theories within the movement varied, its fundamental premises were that law was a human product which served certain functions in society, and the purpose of scholarship was to understand these functions.142 The movement developed in the 1950s and early 1960s as a counter movement to the more doctrinal and value-neutral schools

138 David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 Wisconsin Law Review 1062, 1070–1080, 1083–1084. 139 Id. at 1088, 1091, quotation at 1091. 140 Gardner 1980, supra n. 123 at 211–230. Among them were at least Roberto Unger (see id. at 79–81, 119–122) and Duncan Kennedy (see id. at 227 and n. 43 on p. 351) besides Trubek and Galanter, of course. 141 Duxbury 1995, supra n. 42 at 440. 142 Lawrence M. Friedman, The Law and Society Movement, 38 Stanford Law Review 763, 763–764 (1986). As a general introduction to the law and society scholarship, see also Lawrence M. Friedman, Law and Society: An Introduction (Englewood Cliffs, New Jersey: Prentice-Hall 1977).

67 of jurisprudence. Its purpose was to bring more realist notions into legal scholarship and examine law in its social context as an instrument mediating conflicting social interests and arranging social institutions.143 The movement developed at the same time as sociology of law was becoming a major discipline. The cradle of law and society is nonetheless often seen to be the University of Wisconsin Law School, where the scholarship of James Willard Hurst was particularly important. At least from the 1950s onwards, he had emphasized the instrumental conception of law and combined elements of realism and modern process jurisprudence, thus creating what has been termed “an alternative process tradition in American jurisprudence”.144 The interest in inter-disciplinary studies in law led to the establishment of the Law and Society Association in 1964. A section in Wisconsin Law Review functioned as its publication channel at first, and its own journal, Law & Society Review, was founded in 1966.145 The law and society movement was born during a time when the impact of legal realism was waning because it was absorbed into the mainstream scholarship, and its interest in the early days was concentrated on the civil rights struggles and liberal reforms of contemporary society.146 Research responded to the changes in science and society, bringing sociological and realist elements back into legal scholarship and focusing on the important contemporary social and legal problems. Among other things, the development of law and society relates to the rise of the sociology of law, whose origins are in the late nineteenth and early twentieth centuries, but it did not emerge as a systematic field of study until the postwar years. By the mid- 1960s, there was a lively and sophisticated tradition of sociology of law in America.147 Even if sociology of law had a firm basis, many legal scholars and lawyers either argued that it was not very useful for legal scholarship,148 or that they had difficulty in understanding the rambling expressions of sociology.149 Legal scholarship had thus to adapt itself to sociological studies in order to create a comprehensive sociological theory of

143 Bryant Garth & Joyce Sterling, From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State, 32 Law & Society review 409, 409 (1998); G. Edward White, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 Southwestern Law Journal 819, 830–832 (1987). 144 Duxbury 1995, supra n. 42 at 441; Garth & Sterling 1998, supra n. 143 at 413–455. Wisconsin was the most important place for the development of the Law and Society Association. For instance, the Center for the Study of Law and Society at the University of California, Berkeley, was another important place which, however, relates more to sociology of law than to law and society scholarship. 145 Robert B. Yegge, The Law and Society Association to Date, 1 Law & Society Review 3–4 (1966). 146 David M. Trubek, Back to the Future: The Short, Happy Life of the Law and Society Movement, 18 Florida State University Law Review 1, 20–21, 39, n. 76 (1990). 147 Jerome H. Skolnick, The Sociology of Law in America: Overview and Trends, 13 Social Problems 4– 39 (1965, special issue). Skolnick writes that “[v]irtually all empirical studies directly in the sociology of law in America ─ that is, work by professional sociologists that is not mainly criminological ─ began later than 1950.” (Id. at 5.) Although Skolnick’s conception of sociology of law was contested as being too narrow (Carl A. Auerbach, Legal Tasks for the Sociologist, 1 Law & Society Review 91, 98–103 (1966)), his historical interpretation seems quite accurate because most of the literature Auerbach would include in the sociology of law dates from 1950 onwards. On the methodological controversies between Berkeley and Wisconsin, see Garth & Sterling 1998, supra n. 143 at 459–460. 148 Harry W. Jones, A View from the Bridge, 13 Social Problems 39, 41–44 (1966, special issue). 149 Saul Cohen, Can Sociologists Talk to Lawyers? 2 Law & Society Review 341–343 (1968).

68 law that could be used in legal studies, and in the 1960s legal scholars combined sociology, sociological jurisprudence, legal realism, behavioral and political jurisprudence, and various social theories into their sociological approach to law.150 Legal scholarship had to meet the social changes, and law and society scholarship was a response to them. Since legal scholars felt the need to pay closer attention to the ways law corresponded to social institutions and norms, they had also to adopt alternative methods for research. By stepping beyond the boundaries of traditional scholarship, the sociologically oriented scholars sought to analyze the ways law responded and reacted to social practices. Law and society was also a critical movement. Its purpose was to investigate the functions of law in society in realistic and critical terms, as well as to explain the gap between law in books and law in action. As the war on poverty and the Great Society program were initiated in the 1960s, legal scholars examined the problems of poverty and the inability of law to bring relief. They noted that “[t]he contention is that today as in the past the law primarily serves to protect and enhance the rights and interests of property holders and those in positions of wealth and authority.”151 The critical view of the 1960s held that problems of inequality originated in society, law often maintained these inequalities, and when the law set out to correct the evils, the reality was something else. Alternative scholars opined that traditional doctrinal analysis ignored these problems but the alternative studies explored them. For instance, racial discrimination and inequality were serious problems in the 1960s with which the alternative legal scholars struggled.152 The Supreme Court had invalidated racial segregation in 1954, but segregation and racial discrimination were still the reality in the mid-1960s. In this regard, then, law did not have a marked impact.153 Studies also pointed out that the racist atmosphere of southern societies affected the judges in a way that made it difficult to enforce civil rights law.154 The scholars argued that even if formal law forbade discrimination, it continued in social reality, and although the law was not biased toward the powerful, it in fact preserved the discriminatory and unequal practices. Alternative legal scholarship sought to reveal the problems that lay behind legal doctrines and principles, which were seen as incapable of solving social problems alone. Thus, the “life of law” was at the center of law and society scholarship. As one study pointed out, the rules of contract law were not often followed in relations of busi-

150 See, e.g., Edwin M. Schur, Law and Society: A Sociological View (New York: Random House 1969). The book synthesizes the sociological theories of law of the 1960s. 151 Jerome E. Carlin, Jan Howard, Sheldon L. Messinger, Civil Justice and the Poor: Issues for Sociologi- cal Research, 1 Law & Society Review 9, 12 (1966). The authors noted at least three ways in which law was biased toward the powerful. Law might be favorable toward parties that were typically in a better position, there might be dual systems of law such as racial segregation, and there was de facto bias when law was neutral in books but discriminatory in action. (Id. at 12–26.) 152 See the Symposium on Affirmative Integration: Studies of Efforts to Overcome De Facto Segregation in the Public Schools, 2 Law & Society Review 11─104 (1967) and Reflections on Recent Studies in Race and Education, 2 Law & Society Review 105─165 (1967). 153 Carlin; Howard; Messinger 1966, supra n. 151 at 19–21. 154 Charles V. Hamilton, Southern Judges and Negro Voting Rights: The Judicial Approach to the Solu- tion of Controversial Social Problems, 1965 Wisconsin Law Review 72, 74.

69 ness exchange, and legal practice did not thus necessarily follow the normative aspects of law.155 Research also concerned the impact of law in society,156 the behavior of judges,157 and the effects of various kinds of regulations in order to evaluate their appropriateness.158 Alternative legal scholars considered it important to study the way the decisions of the courts were actually met in social reality because “[a] particular decision may rest upon a legally impeccable rationale; at the same time it may be rendered nuga- tory or self-defeating by contingencies imposed by aspects of social reality of which the lawmakers are themselves unaware.”159 The aim was to provide information on the actual social functions and effects of law. At stake in the law and society scholarship was that if legal rules and principles on paper did not match the rules and principles of action, there was something wrong with the system that had to be revealed. Law and society was also responsive to other alternative legal scholarship, which can be seen, for example, in the importance of legal culture to it. Law and development with its emphasis on the law in action in cultural and social contexts was closely similar to law and society scholarship,160 but even if many of the law and development scholars continued their careers in the law and society movement, the latter did not directly grow out of the former.161 They developed at the same time, and law and development simply contributed to the evolution of law and society. In addition, survey studies on legal culture which contributed significantly to the amount of information on people’s conceptions of law grew significantly after the mid-1960s162 contributing to the understanding of law as a relative phenomenon. Many of the scholars of political jurisprudence were also in contact with law and society and became even more attached to the movement when the competition within political science and political jurisprudence became more intense.163 Schubert, who was advertising behavioral studies for legal scholars, wrote that for a long time “the science of law has been a dull esoteric subject, with traditional logic its long suit and the syllo-

155 Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 American Socio- logical Review 55–67 (1963). 156 Richard Lempert, Strategies of Research Design in the Legal Impact Study: The Control of Plausible Rival Hypotheses, 1 Law & Society Review 111–132 (1966). 157 Theodore L. Becker, Surveys and Judiciaries, or Who’s Afraid of the Purple Curtain? 1 Law & Society Review 133–143 (1966). 158 William C. Whitford, Law and the Consumer Transaction: A Case Study of the Automobile Warranty, 1968 Wisconsin Law Review 1006–1098. 159 Abraham Blumberg, The Practice of Law as Confidence Game: Organizational Cooptation of a Pro- fession, 1 Law & Society Review 15, 16 (1967). 160 There was a symposium on law and development, especially concerning India, in 3 Law & Society Review 195─468 (1969), and the more critical symposium in 1972 Wisconsin Law Review, see supra n. 133. 161 Duxbury 1995, supra n. 42 at 440. 162 Austin Sarat, Studying American Legal Culture: An Assessment of Survey Evidence, 11 Law & Socie- ty Review 427–488 (1977). Studies on legal culture, when culture means the conceptions the people have of law, began in the 1950s, but its volume grew tremendously in the latter half of the 1960s. Legal realism provided the justification for the survey studies because it had stressed the arbitrary nature of the law. (Id. at 428.) 163 Garth & Sterling 1998, supra n. 143 at 463–464.

70 gism its ace in the hole.”164 He concluded that recent currents in political science could be used in legal scholarship to turn it into a science with cross-disciplinary theories, empirical research, and sophisticated scientific analysis.165 A common feature of the various forms of alternative legal scholarship was the fact that they encouraged cross- disciplinary research and sought to go beyond legal doctrine in order to analyze law in action. Differences between law and society and political jurisprudence were that the latter focused on the judiciary and speculated on the behavior of the judges, whereas the former focused more on the social functions and the effects of law in a broader sense. Whereas political jurisprudence applied behavioral and political sciences to judicial studies, law and society was an effort to elaborate a systematic theory and research on the social functions of law. History, society, and culture were all important to law and society scholarship, but it was nonetheless legal scholarship. Lawrence Friedman noted the importance of legal rules for research since they were “important social facts.”166 There were different kinds of rule formulations, and studies on the historical and social context of rules were important in explaining the purposes of the rules.167 It was also considered important to study the concept of legalism which, according to Friedman, was a dynamic type of legal reasoning and a part of all kinds of legal systems, followed social trends, provided reasons for difficult decisions, and served “to legitimize arbitrary decisions where preference for particular alternatives is difficult to justify through reason or policy.”168 In addition, in an empirical, historical, and realist analysis of a legal doctrine in action, Stewart Macaulay analyzed the contractual duty to read the private terms of a contract with respect to cases of credit card losses, and considered the relationship between social policy, contract law, and private business terms.169 Thus, historical and social dimensions helped to analyze legal rules and doctrines. As Friedman and Macaulay argued, one could obtain a critical perspective on the legal practices through interdisciplinary research on law in society.170 This was important because in reality legal rules were discretionary and law might be biased in fact,171 and

164 Glendon Schubert, Behavioral Jurisprudence, 2 Law & Society Review 407, 407 (1968). (Footnote omitted.) 165 Id. at 409–411, 420–428. 166 Lawrence M. Friedman, Law, Rules, and the Interpretation of Written Documents, 59 Northwestern University Law Review 751, 751 (1965). 167 Id. at 751–755. Interestingly, Friedman distinguished rules as mandatory and discretionary. The former gave the solution directly whereas the latter were less stringent. (Id. at 753–754.) Not many steps would have been needed to elaborate a theory strikingly similar to that Dworkin developed a couple of years later. At least in his 1966 article Dworkin does not refer to Friedman. Nevertheless, it would thus indeed be interesting to analyze the context in which the theory of rules and principles was developed. 168 Lawrence M. Friedman, On Legalistic Reasoning ─ A Footnote to Weber, 1966 Wisconsin Law Re- view 148, 148–154, 161–163, 167–171, quotation at 171. 169 Stewart Macaulay, Private Legislation and the Duty to Read ─ Business Run by IBM Machine, the Law of Contracts and Credit Cards, 19 Vanderbilt Law Review 1051–1121 (1966). 170 Lawrence M. Friedman and Stewart Macaulay, Law and the Behavioral Sciences (Indianapolis: The Bobbs-Merrill Company 1969), viii–x. 171 Lawrence M. Friedman, Legal Rules and the Process of Social Change, 19 Stanford Law Review 786, 791–794, 803, 806 (1967).

71 new regulations might prove insignificant.172 While the critical aspect was fundamental to the research, the purpose was to understand how law functioned, not to criticize it. The formulation of rules and their application both described the way law reflected society and an analysis of law in context pointed out the fallacies of law and helped to understand the legal reality. The academic aspect was also important, since teaching law in context was an elementary part of law and society from the beginning. The educational aspect was advanced in a book published in 1961 that was meant to be an introduction to the legal system for law students and other advanced students interested in law. The book gathered cases and materials from American law combined with legal literature, much of which was realist literature, the purpose being to provide an introduction to law in its social context, “not to teach legal doctrines in any particular area of substantive law, but rather to present methods and processes… common to all areas… examined in action.”173 The aim was to provide a comprehensive account of the legal system in its historical and social context so that the reader could understand the causes and purposes of legal institutions. The publication of the book reflected the nascent expansion of the alternative legal scholarship as well as the emergence of law and society. The purpose of the alternative legal scholarship was to point out the use of other sciences in legal studies. Arising in the University of Wisconsin, history was in a critical position in law and society scholarship apart from sociology.174 History was often used in law and society legal analysis, and was also an important factor in the dynamic that was significant in the evolution of critical legal studies, as will be seen later. In addition, other disciplines, such as social and behavioral sciences, were mixed in with legal studies in law and society scholarship. The combination of disciplines was seen in the study book by Friedman and Macaulay, published in 1969,175 in which the authors issued a collection of studies on law that applied some alternative methods to doctrinal analysis, aiming to show that alternative approaches revealed important facts about legal reality and were therefore important for lawyers. Law and society, a movement of legal scholarship that applied interdisciplinary methods in legal analysis, developed during the fifties and reached an established position in the sixties. Its development occurred just as political jurisprudence and law and

172 William C. Whitford, Strict Products Liability and the Automobile Industry: Much Ado about Noth- ing, 1968 Wisconsin Law Review 83–171. 173 Carl A. Auerbach, Lloyd K. Garrison, Willard Hurst, Samuel Mermin, The Legal Process: An Intro- duction to Decision-making by Judicial, Legislative, Executive, and Administrative Agencies (San Fran- cisco: Chandler Publishing Company 1961), vi. 174 Legal history, and more precisely the instrumentalist view of legal history, was indeed a major part of law and society, which comes naturally from the huge influence of J. Willard Hurst on the development of the movement. Hurst, after all, was a legal historian. His view of law as a tool of social change is aptly depicted in his monumental treatise on American legal history in which he wrote that “[w]e shall get a more realistic grasp of the part law has played in United States history if we keep in mind this readiness of Americans to use it as a means to bring about immediate practical results.” (James Willard Hurst, The Growth of American Law: The Law Makers. Little, Brown and Company. Boston 1950, 4). (For Hurst’s methodology in general, see id. at 3–19.) 175 Friedman and Macaulay 1969, supra n. 170.

72 development were pushing forward. Law and society shared much with them, but it was more “legal” than political jurisprudence and more specific than law and development. It did not reduce law to values and ideologies but rather examined it in its historical, social, and cultural context. It also extended the field of research away from the judiciary to society more generally. Political jurisprudence was court-centered and investigated the behavior of judges and the policy implications of decisions, but law and society explored various aspects of law, analyzing legal doctrines in action. Law and society also challenged the tradition of legal scholarship by denying the neutrality of law, perceiving it as a human product, an instrument of social organization. With its emphasis on context, it distanced itself from the postwar urge toward reasonability and the logic of process, being thus more a jurisprudence of substance than process. It had a critical aspect, but it did not stretch the criticism to the extreme, seeking rather to understand the purposes and functions of law. As law and development, law and society also had an education agenda through which it tried to challenge the mainstream legal education with a more realist curriculum. Of the alternative legal scholarship of the 1960s, law and society related most closely to the actual social problems. It thus contributed to the awareness of social failings as well as to the critical understanding of law, society, and scholarship.

2.6 Critical perspectives on law in society

Problems of the 1960s caused new concerns for the legal profession. Social problems, the war on poverty, and the project for a great society gave new ideas to both young and more experienced lawyers. As the interests of the underdog became recognized, lawyers began seriously to contemplate alternatives to deal with the social problems and to provide legal services to those who needed them but lacked the means to obtain them.176 Courts had been used as forums of social change before, but the sixties brought a remarkable change,177 when the needs of the poor were better recognized,178 and groups of radical lawyers dedicated their careers to assisting them.179 The new orientation of

176 Edgar S. Cahn and Jean C. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale Law Journal 1317–1352 (1964). Government, for example, established the Legal Services Program to provide legal counseling for the poor. 177 Jules Lobel, Courts as Forums of Protest, 52 UCLA Law Review 477, 493–510 (2004). Early efforts to litigate for social change involved the abolition of slavery and women’s rights in the nineteenth century. The twentieth century brought various organizations into the picture. From the perspective of the 1960s, the important ones were the National Association for the Advancement of Colored People that had worked for the rights of racial minorities since the early century and its Legal Defense Fund, established in 1930, the American Civil Liberties Union that had litigated for civil rights since 1920, and the National Lawyers Guild that had also worked for the rights of the less privileged since 1937. 178 See, e.g., the symposium in 12 UCLA Law Review 279–509 (1965). 179 See Jonathan Black, Radical Lawyers: Their Role in the Movement and in the Courts (New York: Avon Books 1971); Robert Lefcourt (ed.), Law Against the People: Essays to Demystify Law, Order, and

73 lawyers was an exception to the tradition, since the legal profession was traditionally skeptical of the efforts to extend the basis of legal aid because it was concerned with protecting its own interests.180 Lawyers were traditionally an elitist group, close to the powerful classes, so that they had not in general been concerned about the rights of the less-privileged. The civil rights struggle transformed the self-image of the lawyer who felt alienated from the traditional profession or wanted to work for the rights of the citizen. The changes in the practical legal profession reflect the wider transformation of society and consciousness, which were significant in shaping its critical consciousness. Part of the dynamic leading to the formation of the critical thought was therefore the rising critical attitude of the practical lawyer. The lawyers who were concerned for inequality with respect to legal representation argued that inequality meant a denial of justice. They claimed that the problem was not simply a matter of income, but consisted of complex socio-structural problems that needed fundamental reform.181 Various changes were needed in order to make legal services available to the poor. Among the new alternatives were neighborhood law firms,182 group legal services,183 communal law firms184 and public interest lawyers.185 Even if legal representation was not a “panacea for poverty”, there were many things lawyers could do for a more equitable society,186 and even if lawyers had faith in assisting the needy, they were aware of the limits of civil litigation.187 Social problems gave rise to legal problems, and a portion of the profession was not satisfied with the way the problems were typically dealt with. From the 1960s onwards, lawyers began to take a larger role in social activism. New methods were needed in the struggle for the rights of the citizen. Lawyers, for instance, attacked public agencies in order to change the system.188 At first, government had been part of the struggle against inequality, but as matters evolved, radical lawyers

the Courts (New York: Vintage Books 1971). The radical attitude toward law and the traditional legal profession is well described in the articles in the books. 180 Jerome E. Carlin, Lawyer’s Ethics: A Survey of the New York City Bar (New York: Russell Sage Foundation 1966), 180. See also Murray L. Schwartz, Group Legal Services in Perspective, 12 UCLA Law Review 279, 284 (1965); George E. Bodle, Group Legal Services: The Case for BRT, 12 UCLA Law Review 306, 306 (1965). The articles concerned the decision in Brotherhood of Railroad Trainmen v. Virginia ex rel Virginia State Bar 377 U.S. 1 (1963), which granted the labor unions the right to provide legal counseling for their members, a provision which the American Bar Association opposed. 181 Jerome E. Carlin & Jan Howard, Legal Representation and Class Justice, 12 UCLA Law Review 381, 382–429 (1965). 182 Cahn and Cahn 1964, supra n. 176 at 1334–1336. 183 Schwartz 1965, supra n. 180 at 284–286. 184 Robert Lefcourt, The First Law Commune, 310–312, in Lefcourt 1971 (ed.), supra n. 179 at 310–326; Paul Biderman, The Birth of Communal Law Firms, 281–282, in Black 1971 (ed.), supra n. 179 at 280– 288. 185 The New Public Interest Lawyers, 79 Yale Law Journal 1069, 1069–1070 (1970). 186 Carlin & Howard 1965, supra n. 181 at 437. 187 Geoffrey C. Hazard Jr., Social Justice through Civil Justice, 36 University of Chicago Law Review 699–712 (1969); Geoffrey C. Hazard Jr., Law Reforming in the Anti-Poverty Effort, 37 University of Chicago Law Review 242–255 (1970). 188 Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stanford Law Review 207, 227 (1976).

74 realized that the government was part of the system and thus part of the problem. In addition, new strategies of litigation, such as consumer protection189 and environmental- ism190 came into existence as the interests of consumers and the environment began to attract public interest. Critical lawyers and scholars went to the root of the problem in order to bring change about. They noted that the problems were fundamental and attacked it in various ways. The critical lawyers of the 1960s and 1970s sought to fight social inequality in the courts, which indicates that they still had faith in the potential for reform through litigation. The changes in the profession also left their marks on scholarship. Charles Reich, a liberal scholar with an alternative perspective, noted that the rise of the welfare state had expanded the government and caused undesirable side-effects, since governmental control over private life had increased in an inequitable manner, burdening the poor more than the rich. Privacy and governmental largess did not enjoy the protection that private property rights did. Therefore, in order to increase equality, the interests of the poor should be regarded as the new property.191 He also argued that the myth of neutrality of law distorted the purposes of the public interest because the values and policies underlying the concept were hidden behind the ostensible neutrality of law.192 The alternative concepts of property were aimed at attaining the reality behind the legal doctrine. The concerns of the scholars were precisely those that concerned the law and society scholars as well, and the Zeitgeist of the alternative scholar was to study law in action as a response to social problems. Scholars elaborated new legal concepts to make law correspond with modern society and paid more attention to the previously neglected social problems. Legal scholarship on social problems was also increasing significantly. In addition to the Law & Society Review, The Harvard Civil Rights-Civil Liberties Law Review was founded in 1966 to promote scholarship on the rights of the citizen,193 and the Columbia Survey of Human Rights Law, later the Columbia Human Rights Law Review, was founded in 1967. Civil rights issues were important and scholarship on them was lively. As noted, racial inequality was an especially serious concern. For instance, Paul Brest criticized the national government for its inability to protect the rights of African Amer- icans in Southern societies,194 and McCarty and Stevenson analyzed the effects of the 1965 Voting Act by examining the actual problems concerning the voting of African Americans in the southern states, reviewing the changes the new law had made, and

189 Mark L. Rosenberg, Class Actions for Consumer Protection, 7 Harvard Civil Rights-Civil Liberties Law Review 601–629 (1972): 190 Donald W. Large, Is Anybody Listening? The Problem of Access in Environmental Litigation, 1972 Wisconsin Law Review 62–113. 191 Charles A. Reich, The New Property, 73 Yale Law Journal 733–777 (1964). 192 Charles A. Reich, The Law of the Planned Society, 75 Yale Law Journal 1227, 1233–1238 (1966). 193 Morton J. Horwitz, A Brief History of the Harvard Civil Rights-Civil Liberties Law Review, 37 Har- vard Civil Rights-Civil Liberties Law Review 249, 249 (2002). 194 Paul Andrew Brest, The Federal Government’s Power to Protect Negroes and Civil Rights Workers Against Privately Inflicted Harm, 1 Harvard Civil Rights-Civil Liberties Law Review 2–59 (1966).

75 considering the potential for policy change.195 These studies were concerned with the legal problems in society, but the interest in the functions of the profession also increased. An expression of the growing self-awareness of the legal profession was Je- rome Carlin’s sociological study on the ethics of the legal profession, which aimed at understanding the position of the lawyer in society.196 Studies on the contemporary concerns were popular in the 1960s, and the problems were often approached from an alternative perspective with alternative methods. Alternative legal scholarship was a methodology of criticism and reform. The 1960s was still marked by a reliance on social planning, as long as the planning was done right.197 Later the critical bloc of the younger generation became more pessimistic about the possibility of reform. During the latter half of the sixties, several reform-minded, leftist young lawyers started to work for a better society by denouncing the traditional practice and seeking to work for the oppressed and the less privileged. These lawyers noted the political aspect of law and acted upon it in order to change society.198 They struggled against the myths of the heroic nature and neutrality of law199 and, whereas the traditional purposes of legal work were to solve conflicts and analyze doctrine, the radicals thought that “[t]he major objective of work in law, however, ought to be to clarify its outside limits and its history; to show that bourgeois law is not only hypocritical, but based on inequality and therefore, in our eyes, illegal.”200 Social unrest and the awakening of the “other side” of society had left their mark on the legal profession. Students had protested with an increasing intensity since the beginning of the decade, and African Americans had protested throughout the century. In the late 1960s, the legal profession was finally ready to respond to the social upheav- als on a large scale. Lawyers had fought for the rights of the less privileged for a long time, but the decade brought a remarkable change in the situation. Because of the large profession and the larger number of radically minded lawyers, there were better opportunities for the legal profession to develop a radical branch to serve the radical aims. Truly radical lawyers were students of the sixties starting their professional careers at the end of the decade. Youthful enthusiasm drove them to take a more critical stand on the law than their older colleagues.

195 L. Thorne McCarty & Russell B. Stevenson, The Voting Rights Act of 1965: An Evaluation, 3 Har- vard Civil Rights-Civil Liberties Law Review 357–421 (1968). 196 See Carlin 1966, supra n. 180. 197 See Reich 1966, supra n. 192 at 1257–1270. 198 Jonathan Black, Introduction: A Slight Case of Contempt, 14–17, in Black 1971 (ed.), supra n. 179 at 11–23; Stephen Wexler, Practicing Law for Poor People, 79 Yale Law Journal 1049, 1049–1054 (1970). 199 Kenneth Cloke, Law is Illegal, 27, in Black 1971 (ed.), supra n. 179 at 27–43. 200 Id. at 42. Cloke is a good account of the Marxist conception of law in the United States. See also Mi- chael E. Tigar, Socialist Law and Legal Institutions, in Lefcourt (ed.) 1971, supra n. 179 at 327–347.

2.7 Concluding remarks

The decisive point for American jurisprudence of the 1960s was the pursuit of rationality and neutrality in legal reasoning. Although the most radical notions of legal realism had faded, it had left a permanent legacy with which the postwar legal scholars had to cope, and which had to be adapted to the tradition. Legal interpretation and the creative input of judges had thus to be set in the context of a rational process in order to enable the development of law in accordance with social change. At the same time, however, arbitrariness had to be avoided, neutrality maintained, and the protection of individual and fundamental democratic rights guaranteed. There were also scholars who criticized the common consensus on rationality. The mainstream was not without an opposition and the profession at large was not unanimous about the nature and purposes of jurisprudence. The 1960s had also changed the field of legal scholarship to a significant extent and various forms of alternative legal scholarship and practice had an established position by the mid-decade. Political jurisprudence worked on the impact of the personal and political biases of judges on judicial decision-making since the late 1940s and its literature increased considerably during the succeeding years. However, it was a movement of political and behavioral sciences. Interdisciplinary legal studies had also begun to prosper. Law and society had grown since the 1950s, examining the relationship between the law and various social phenomena. In many ways it was critical scholarship, but it did not go beyond the observable reality or endorse any extreme notions. Studies on culture and law as well as on legal anthropology were encouraged by the American projects in developing countries, which had also revealed the imperialistic nature of law and the fact that law had relatively little direct impact on society. In addition, practicing lawyers were paying more attention to the impact of their profession. Lawyers were finding ways to help people in need of assistance and change society through their practice, and lawyers and legal scholars began to pay more attention to the fundamental rights of the citizen. The legal tradition was challenged from various directions as the social turbulence was reaching its peak and law schools were also becoming forums for student rebellion. Despite the alternative scholarship, mainstream jurisprudence and legal education in general emphasized the rationality and neutrality of the legal process and failed to pay attention to the relationship between law, society, and politics. Moreover, in spite of the fact that the tradition was criticized, the critical scholarship of the 1960s only rarely challenged the ideology informing the tradition. With the exception of the radical lawyers who thought that bourgeois law was illegal, the alternative scholarship of the 1960s simply tried to expand the methodological basis of legal scholarship and to acquire a better understanding of the social functions of the law. The interplay between the tradition, jurisprudential criticism, social radicalism, and changes in scholarship was at the

77 center of the radical critical legal scholarship of the 1970s, and it will be the focus of the following section.

3 Critique radicalized: The evolution of CLS

3.1 The origins of CLS: From sociological jurisprudence to critical legal scholarship

3.1.1 Introduction

In the previous sections we have seen that there were realist elements in legal scholarship in the 1960s and 1970s, but that these were not in a major position. The law school tradition remained more true to the process theory than to any policy analysis. However, society was in continuous turmoil and civil rights movements were on a roll, cultural radicalism and leftism marked the critical intellectual thought, and social sciences made their way into legal scholarship. As the 1960s progressed, realist elements and alternative approaches began to get more attention from legal scholars. The Critical Legal Studies Movement (CLS) was thus a movement with several connections. Its basis was in the radicalism of the 1960s, it had law and development and law and society as sources of inspiration, and the taught tradition was its enemy. In this section, I shall explore the development of CLS in the 1970s. As Duxbury notes, CLS grew out of the conflict between the alternative legal scholarship of the 1960s and the more radical-left orientation that eventually became CLS.201 It is true that CLS was a reaction to the failures of the alternative jurisprudence of the 1960s to meet the needs of legal reality, as well as the failures of reasoned elaboration to come to terms with the problems of legal reasoning. However, it was also much more, and this can be seen precisely in the conflict if we take into account the various aspects relating to culture, epistemology, world-view, and consciousness. The general account on CLS does not include the larger, cultural element in the development of the movement. Therefore, my purpose is to demonstrate how CLS was a complex phenomenon of combining various aspects within the academic field. In this section, I will demonstrate how the various transformations culminated in the CLS movement in the late 1970s. I will begin at the law school, because it was the place where the radical scholars acquired their identities as scholars and where the classical tradition was most pronounced. A central thesis is that some of the law students of the 1960s and 1970s felt alienated from the tradition and began to seek an alternative paradigm. I shall then analyze the development of the criticism of legal thought and critical scholarship in legal history, constitutional law, and criminal law. The first conference on critical legal studies, held in 1977, can be seen as the birth of the CLS

201 Duxbury 1995, supra n. 42 at 435–447.

78 movement. That will also function as a point of departure in the study, and our analysis will cease at the beginning of the 1980s. After taking a brief look at race and feminist scholarship, the analysis turns to the historical perspective at the end of the section.

3.1.2 Radicalism and the law school: The evolution of critical thought

The best manifestation of the spirit of the 1960s was campus radicalism. Radical students attacked the structures and administration of the university. Radicalism also in- vaded the law school in the late 1960s. Although relatively late and small as compared to the other disciplines,202 the discomfort with legal education was nonetheless widespread, in particular among first-year students.203 Like their fellow students, law students protested against the grading system and their lack of power in the university administration.204 The law student population had increased greatly during the postwar decades. By the 1960s, a significant portion of the law students were liberal leftists who supported civil rights and social justice, whereas the majority of the legal profession remained rather conservative.205 Law students also adopted the critical spirit of the time and wanted their education accordingly. Since law has been traditionally a relatively conservative and elitist field, law students were not at the forefront of the student radicalism, but as the number of the liberal students increased and the disappointment with education grew, radicalism entered the law school as well. The critical spirit of the 1960s changed the law school atmosphere significantly. Unsurprisingly, CLS has often been linked to the experiences of the leftist students in the law schools of the time. Common observations are that CLS “was born during the late 1960s among a group of student activists and younger faculty at Yale Law School who believe that using legal reasoning to justify the rules of society can make outcomes that are oppressive appear to be inevitable, logical and inherently fair,”206 and that its origins are in the “dissonance between the student political experience of the sixties and the law school curriculum of the sixties and seventies.”207 One of the most important figures of critical scholarship, Duncan Kennedy, wrote in 1991 that “I started law school in 1967 with a sense that the ‘system’ had a lot of injustice in it, meaning that the distribution of wealth and income and power and access to knowledge seemed unfairly skewed along class and race lines. I thought law was important in the skewing process

202 Paul N. Savoy, Toward a New Politics of Legal Education, 79 Yale Law Journal 444, 444 (1970). 203 Lawrence Silver, Anxiety and the First Semester of Law School, 1968 Wisconsin Law Review 1201– 1208. 204 Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: The Univer- sity of North Carolina Press 2005), 28–31, 84–105, 122–135, 145–157. 205 Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: The University of North Carolina Press 1983), 234–235. 206 Are Lawyers Really Necessary? Barrister Interview with Duncan Kennedy, 14 Barrister 11, 11 (4/1987). 207 Guyora Binder, On Critical Legal Studies as Guerrilla Warfare, 76 Georgetown Law Journal 1, 23 (1987).

79 and in efforts to make distribution fairer, but I had no clear idea how or why.”208 As the students felt disbelief in the society, they also felt betrayed by the law school and pow- erless within the university. The law school thus provides the arena for the synthesis of the critical thought that eventually led to the formation of the critical legal studies movement. It was the place where the traditional and the new models of legal thought collided. It was not simply student radicalism that stirred the law school atmosphere. Alongside the rise of student unrest, the faculty also debated education. Legal education had been widely debated since the time of legal realism, and the 1960s intensified the debates. Although the curriculum was revised, no fundamental changes occurred, and the education at least during the first year was still based on the case method.209 Prob- lems of legal education were widely acknowledged. Even professors who were pleased with the education opined that there ought to be some social material in the curriculum,210 but the more critical scholars endorsed more fundamental changes. A common concern among the critics of legal education was that the students were not prepared for real-life circumstances. What was needed, then, was more attention to the substance,211 a functional approach to law,212 or more material on the social consequences of law in the text-books.213 Students were also often irritated by the emphasis on rationality and the apolitical nature of the education.214 The criticism of the traditional education clearly reflected the disagreement on the methodologies of legal research. The focus on law in action was becoming more common in the 1960s, and the alternative approach was clearly articulated in the critical arguments about legal education. The criticism of the education thus emanated more from the alternative scholarship than from the radical students. Besides the substance of education, the scholars criticizing it also endorsed the methods of alternative legal scholarship. A common argument was that there ought to

208 Duncan Kennedy, The Stakes of Law, or Hale and Foucault! 15 Legal Studies Forum 327, 327 (1991). 209 Stevens 1983, supra n. 205 at 210–212. The debates on legal education before 1964 are summarized in Note: Modern Trends in Legal Education, 64 Columbia Law Review 710–734 (1964), where it is stated that the case method was rare after the first year, but the majority of faculty thought that it was useful, even necessary, in the first year. (Id. at 716, n. 52.) Nevertheless, criticism of legal education continued from the realist period. On the realist critique of legal education, see Laura Kalman, Legal Realism at Yale, 1927–1960 (Union, New Jersey: The Law Book Exchange 2001), 68–119; Stevens 1983, supra n. 205 at 155–171. 210 Edward H. Levi, Law Schools and the Universities, 17 Journal of Legal Education 243, 248–249 (1967). 211 Charles A. Reich, Toward the Humanistic Study of Law, 74 Yale Law Journal 1402, 1402–1406 (1965). 212 Robert B. Yegge, The Future Legal Practitioner in the United States: What Training He Must Receive, 44 Denver Law Journal 12, 21–22 (1967, special issue). 213 Lester Mazor, Cases and Materials on Constitutional Rights and Liberties, 49 Minnesota Law review 1202, 1210 (1965). 214 Robert W. Gordon, Critical Legal Studies as Teaching Method, Against the Background of the Intel- lectual Politics of Modern Legal Education in the United States, 1 Legal Education Review 59, 64–66 (1989).

80 be more interdisciplinary education in legal training.215 Because of the stress on the social problems, law was not to be understood as a closed and autonomous discipline. On the contrary, there ought to have been more philosophy,216 history,217 social science,218 and empirical data219 in legal education, because these would help the would-be lawyers to understand legal classifications and social functions and the effects of the law. It was often scholars with connections to law and society scholarship who most encouraged the inclusion of social science in legal education. The critical opinion of the 1960s was that law was an integral part of society and therefore could not be understood inde- pendently. The functional approach toward legal education also concerned policy issues and social planning. The radical activist lawyer Ralph Nader argued that legal education traditionally promoted the needs of the big corporations and therefore often served to maintain the status quo.220 Many scholars argued that legal education did not pay due attention to contemporary problems221 although the purpose of education should be to inform the students of the potential for using law as a tool of social reform.222 The post- realist scholar Arthur Miller even argued that law schools ought to be turned into centers of policy analysis where the potential of law to promote human values and solve contemporary problems could be analyzed.223 And since urban problems were pressing, David Cavers argued that law schools should pay attention to the contemporary urban crisis in both research and education.224 Specialized education was also proposed so that students could obtain deeper knowledge on certain topics.225 The functional approach and the emphasis on values and policies were parts of the alternative perspectives on law. Critical scholars and lawyers worked to resolve social problems and promote liberal values, and these insights were accentuated in the criticism of education.

215 Lawrence M. Friedman, Contract Law and Contract Research (Part I), 20 Journal of Legal Education 452, 459–460 (1968). Friedman noted that the education in criminal law, for instance, had been revised more but the education in contract law was still very conservative. (Id. at 452.) 216 James E. Wallace, Philosophy and the Future Law School Curriculum, 44 Denver Law Journal 24, 26– 27, 34 (1967, special issue). 217 Lawrence M. Friedman, History and the Future Law School Curriculum, 44 Denver Law Journal 43, 45–46 (1967, special issue). 218 Wilbert E. Moore, Social Science and the Future Law School Curriculum, 44 Denver Law Journal 49, 50–54 (1967, special issue). 219 Stewart Macaulay, Contract Law and Contract Research (Part II), 20 Journal of Legal Education 460, 467–468 (1968). 220 Ralph Nader, Law Schools and Law Firms, 54 Minnesota Law Review 493, 493–496 (1970). 221 Quintin Johnstone, Student Discontent and Educational Reform in the Law Schools, 23 Journal of Legal Education 255, 255–258 (1970); Steven H. Leleiko, Legal Education – Some Crucial Frontiers, 23 Journal of Legal Education 502, 503–506 (1971). 222 Reich 1965, supra n. 211 at 1405; Yegge 1967, supra n. 212 at 13, 16–17; Moore 1967, supra n. 218 at 53; Stewart Macaulay, Law Schools and the World outside Their Doors: Notes on the Margins of “Pro- fessional Training in the Public Interest”, 54 Virginia Law Review 617, 635 (1968). 223 Miller 1970, supra n. 122. 224 David F. Cavers, Legal Education in Forward-Looking Perspective, 143–148, in Geoffrey C. Hazard Jr. (ed.), Law in a Changing America (Englewood Cliffs, New Jersey: Prentice-Hall 1968), 139–156. 225 Abraham S. Goldstein, The Unfulfilled Promise of Legal Education, 164–165, in Hazard (ed.) 1968, supra n. 224 at 157–166.

The concern over legal education involved broad aspects of alternative legal scholarship. Miller, for instance, encouraged a very realistic education that would include the impact of extra-legal factors in judicial decision-making and the way judges in fact decided cases, as well as the aspects of law as a tool of social control.226 The criticism marked a more dramatic shift in the paradigm of legal education. The aim of the criticism was to combine recent trends in alternative scholarship in legal education and bring the level of realism in the behavioral sciences into the law. Alternative legal scholarship of the 1960s challenged the traditional scholarship, and the struggle struck at the essence of legal education. A major vice of legal education, the critics claimed, was the Socratic method. Many of the students found the method very stressful,227 and Paul Savoy noted that a real interaction between teachers and students would “never happen until we remove our academic masks and put an end to those degrading ceremonies we politely call the ‘Socratic method.’”228 Notwithstanding the realist period, American legal education had done well until the mid-1960s, and no major reforms had occurred.229 Part of the critical thought of the 1960s, however, was to demonstrate that the case method was boring and reifying, and thus had to be replaced by more realistic approaches. The alternative legal scholars endorsed alternative methods to traditional scholarship and heard the cries of the student radicals, and they attacked the legal tradition in the effort to change it. The critical debates show that legal education and legal paradigm are intertwined. The problem was deeper than simple controversies over educational policies. Friedman argued that legal education had long been a closed discipline and recent times had witnessed a counter-revolution following the realist period, which had moved legal theory and education in a more conservative direction.230 In an unsigned article titled “Legal Theory and Legal Education” it was argued, after noting that studies on law in action had again become common, that “[m]any of the current proposals to establish empirical research about particular socio-legal problems in the law schools carry with them an implicit paradigm which attempts to serve these general professional functions.”231 As the debates on neutral principles showed, there was an urge to maintain the traditional prestige and rationality of the profession even though the alternative bloc was present. A problem concerning change was, however, that the “genius” of American democracy was the “readiness with which its legal institutions and practices have accommodated

226 Arthur Selwyn Miller, On the Interdependence of Law and Behavioral Sciences, 43 Texas Law Re- view 1094–1101 (1965). 227 Andrew S. Watson, The Quest for Professional Competence: Psychological Aspects of Legal Educa- tion, 37 University of Cincinnati Law Review 91, 124 (1968). 228 Savoy 1970, supra n. 202 at 456–457. 229 Robert Stevens, Two Cheers for 1870: The American Law School, V Perspectives in American Histo- ry 403, 405 (1971). 230 Friedman 1968, supra n. 215 at 457–459. 231 Legal Theory and Legal Education, 79 Yale Law Journal 1153, 1156 (1970). According to the CLS bibliography, the article was written by Rand Rosenblatt. (Duncan Kennedy & Karl E. Klare, A Bibliog- raphy of Critical Legal Studies, 94 Yale Law Journal 461, 484 (1984).)

82 shifting objectives without profound or radical change in the fundamentals.”232 Society and legal scholarship were in turmoil but fundamental changes were difficult to achieve. Because of the turmoil and the criticism, scholars were talking about a crisis in legal education in the early 1970s.233 Those who were very critical of the education felt that there was a need for fundamental reform,234 but the proposals varied and some noted the difficulty of combining them.235 The rising resistance within both the faculty and among the students had in any event transformed the law school, even if major changes had not occurred. Many law students grew up and received their education in the critical atmosphere of the 1960s and, as has been noted, the new left found an afterlife in the American academy in the 1970s.236 The crisis of education was thus a culmination of scholarly and student discomfort with the traditional paradigm. While emphasizing the connection between the disappointing experiences with legal education of the 1960s and the origins of CLS, Robert Gordon writes that “[m]ost activist students of the 1960s who were involved in radical or left-liberal politics found the studiedly antipolitical teaching of that time simply irrelevant to their concerns. They scrounged such slim practical pickings from law school as they could, got the degree, and moved on. But the 1960s law students who went on to form the core of CLS mostly became teachers themselves and so were motivated to engage with the content and style of orthodox doctrinal teaching and scholarship.”237 For some students, radicalism was a passing phase, a part of youth, which passed when the period of studying was over. For others, however, radicalism became a part of identity, and they continued their critical enterprise in their professional lives. Critical legal scholarship was partly an expression of the student dissatisfaction with the law school experience and a willingness to improve, or simply criticize, the system they felt was seriously flawed. The crisis in legal education and the critical social ideology built a fertile ground for critical legal scholarship. Duncan Kennedy, who later became one of the most eminent critical legal scholars, noted the inconvenient atmosphere in his criticism of the law school. According to him, professors were often narcissistically self-assured of the superiority of the legal method over other disciplines. The worst part was, however, the hostility of the law school, because many students “feel the socratic method… is an assault” and, furthermore, they “see professors as people who want to hurt them; profes-

232 William T. Gossett, Balances and Controls in Private Policy and Decision-Making, 26, in Hazard (ed.) 1968, supra n. 224 at 26–42. 233 Arthur Kinoy, The Crisis in American Legal Education, 271, in Black (ed.) 1971, supra n. 179 at 271– 280; Robert Borosage, Can the Law School Succeed? A Proposal, 1 Yale Review of Law & Social Action 92, 92 (1970). 234 Savoy 1970, supra n. 202 at 502–504. See also Johnstone 1970, supra n. 221; Miller 1970, supra n. 223; Leleiko 1971, supra n. 221; Edward R. Cohen, Toward Radical Reform of the Law School Curricu- lum, 24 Journal of Legal Education 210–220 (1972). 235 Lawrence M. Friedman, Some Thoughts on the Relationship between Law and Political Science, 1971 Washington University Law Quarterly 375, 380. 236 Diggins 1992, supra n. 20 at 290. 237 Robert W. Gordon, Critical Legal Studies as a Teaching Method, 35 Loyola Law Review 383, 393 (1989).

83 sors’ actions often hurt them, deeply.”238 People felt alienated in both the society and the university. Traditional structures of power and authority were felt to be oppressive, suffocating, and humiliating, something that a better world would not include. And as was typical of the critical mind, the fault was seen in the structures of the system. The problem was not about certain old, egoistic professors who would not tolerate the young and acted as if they could do as they pleased. Nor was the problem about the young people themselves being unable to adapt to society like many people had done before them and many people still did. The problem was in the structures, and that is what critical scholars realized, and therefore Kennedy attacked the institution in his criticism.

3.1.3 Crisis meets jurisprudence: Fundamental criticism of legal thought

By the end of the 1960s, the crisis in the social order had become evident. The crisis in legal education of the early 1970s reflected the wider crisis of the legal profession,239 which also concerned the law and the legal system. In general, for the anti- establishment people the crisis concerned also the ecological and economic system of the world.240 Law, too, was a field which faced the problem of adapting the tradition to the changed circumstances. The critical notions of the realists were emphasized once again, and by the late 1960s the critical legal scholars noted that the legal profession had learned hardly anything from the lessons of legal realism of the 1920s and 1930s which “was a short-lived enthusiasm that in fact has left a legacy of expectation rather than accomplishment.”241 Scholars who in the 1960s endorsed the realist agenda, such as Arthur Miller, argued that realists had done much to “pierce the fog of ritual and myth” that surrounded the legal profession, yet the Blackstonian theory still “ruled from the grave”. Therefore, the tradition had to be changed to deal with the inevitable connection between law and politics.242 Indeed, scholars of political jurisprudence stressed that it had become virtually impossible to maintain the distinction between law and politics,243 and professors of law with an alternative perspective argued that because values were connected to facts, legal research needed empirical science.244 In the eyes of the alternative scholar, traditional legal scholarship was in crisis, and the baggage that thwarted the realization of the connection between law and politics had to be stripped out and replaced by new methods.

238 Duncan Kennedy, How the Law Schools Fails: A Polemic, Yale Review of Law & Social Action 71, 72–73 (1970). 239 Kinoy 1971, supra n. 233 at 272. 240 See, e.g., Donella H. Meadows, Dennis L. Meadows, Jørgen Randers, William W. Behrens III, The Limits to Growth (London: A Potomac Associates Book 1972). 241 Goldstein 1968, supra n. 225 at 158. 242 Arthur Selwyn Miller, Science vs. Law: Some Legal Problems Raised by “Big Science”, 17 Buffalo Law Review 591, 595–596 (1968), quotations at 596, footnotes omitted. 243 Joel B. Grossman and Austin Sarat, Political Culture and Judicial Research, 1971 Washington Univer- sity Law Quarterly 177, 177. 244 Harry Kalven Jr., The Quest for the Middle Range: Empirical Inquiry and Legal Policy, 71–72, in Hazard (ed.) 1968, supra n. 223 at 56–74.

Although the crisis was obvious, legal scholars responded to it in various ways. In the late 1960s and early 1970s, legal professionals were increasingly discussing the current situation of law and legal scholarship.245 In general, faith in the law among the legal profession and the public at large was waning. People within and outside the legal profession considered law as conservative and protecting the social and economic status quo,246 and demystification of the law, meaning the efforts to understand it as it is without its ideological mystique, became more popular.247 The problems of law were widely recognized, but the solutions were far from clear. The critical thought that was emerging both theoretically and in practice was about to challenge the majority who remained true to the tradition. Critical scholars, however, were about to search for alternative ways to think about society and law. The Yale law professor Charles Reich grasped the spirit of the crisis of law and modern society very well in his The Greening of America,248 first published in 1970. Here he pictured the gloomy image of the corporate state that had turned people into mindless machines and spread false consciousness that upheld the consumption capitalism on which society was based. People had become mere consumers, indoctrinated into the system through education to serve the machine. Production and consumption had destroyed the authenticity of the self and nature, and had thus led to the decline of man and society. Reich’s book was indeed an image of the critical mind of the late sixties; a jeremiad of the mind of a rock-and-roll dissenter in a modern society. It was a philosophical analysis of the system, law, and the consciousness of the people. By using the theories of Marx, Marcuse, and Galbraith, and by referring to contemporary literature, such as Catcher in the Rye, Reich developed an image of the society where life had lost its meaning and everything served production. He was, however, neither a nihilist

245 There was lots of polemical literature published during the years around the turn of the decade which reflect, in one way or another, the crisis of the time. See, e.g., Hazard (ed.) 1968, supra n. 224, which was a product of the American Assembly on Law and Changing Society, and dealt with the problems law and legal scholarship faced in contemporary society in a broad perspective but in a constructive manner. Some of its essays are more critical than others. Black (ed.) 1971, supra n. 179 and Lefcourt (ed.) 1971, supra n. 179, were critical, even radical, and quite similar books. They both were products of the National Lawyers Guild and dealt with the contemporary problems of law and society concerning the poor, racial minorities, and women. See also Robert Paul Wolff (ed.), The Rule of Law (New York: Simon and Schuster 1971). Its essays deal with the problem of legitimacy of the legal system, and its authors are mostly non-lawyers. Some of its essays are quite critical whereas others are more constructive. See also Eugene V. Rostow (ed.), Is Law Dead? (New York: Simon and Schuster 1971). It was a product of the 100th anniversary symposium of the Association of the Bar of the City of New York, and is somewhat more conventional book of essays which deal with the moral responsibility to obey the law and the capacity of the American legal system to respond to the contemporary problems. These books show that there were many problems concerning law and society and legal scholars offered various responses to them. 246 Howard Zinn, The Conspiracy of Law, 20–35, in Wolff (ed.) 1971, supra n. 245 at 15–36; Edgar Z. Friedenberg, The Side Effects of the Legal Process, 37–41, in Wolff (ed.) 1971 id. at 37–53; Robert Lefcourt, Law Against the People, 26–35, in Lefcourt (ed.) 1971, supra n. 179 at 21–37. 247Lefcourt (ed.) 1971, supra n. 179 at viii. 248 Charles A. Reich, The Greening of America (Harmondsworth: Penguin Books 1971).

85 nor a socialist,249 but a liberal progressive who had faith in the potentiality of change in American society. According to Reich, law in modern society, although capable of transforming, was a medium of power and a guardian of the status quo.250 More radical scholars than Reich also made this argument, for the role of the radical scholar was, as Arthur Kinoy put it, to study the particular contradictions within law in order to understand the way law operated in society and reproduced social inequality, and hence to defend the true purposes of law.251 Critical scholars considered law as a conservative force and a hindrance to social reform,252 and biased against the poor,253 racial minorities,254 and women.255 They felt that law, like American democracy, had betrayed its original purpose of protecting freedom and equality and turned instead to preserve the system and the powerful. The purpose of radical action was to expose the fallacies of law and, if possible, contribute to change. The unrest confused the legal profession and produced an all- encompassing tension within it. The political and social turbulence and the conflict between the tradition and the alternative were evident in the law faculties. As noted, it was often the younger faculty who endorsed alternative education and scholarship. The tension became clear in the early 1970s when Yale law school failed to offer tenure to six young faculty members on an occasion that became to be known as the “purge.”256 Many of the participants in the incident in fact shared leftist sympathies and endorsed alternative approaches. David Trubek and Richard Abel were obviously critical scholars and became later founding members of CLS, and John Griffiths can also be considered as a critical scholar.257 Now, it has been argued that the denial of tenure was due to the leftist and critical nature of these scholars.258 Although the occasion may not be so simple,259 it nevertheless sug- gests the tensions within the law school. Young scholars eager to change the curriculum and scholarship did not always receive a hospitable reception, and the disappointments that students felt while studying continued in the early phase of their academic careers.

249 Reich criticized the New Left for its unawareness of the repressive nature of socialism and for not providing an alternative vision of change. (Reich 1971, supra n. 248 at 263–264.) 250 Id. at 102–112. Reich did not propose abolishing law or government. Rather, they were to be changed to serve humane ends. (Id. at 296–297.) 251 Arthur Kinoy, The Role of the Radical Lawyer and Teacher of Law: Some Reflections, 29 Guild Prac- titioner 3, 4 (1970). 252 Richard Wasserstrom, Lawyers and Revolution, 79, in Black (ed.) 1971, supra n. 179 at 74–84. 253 Wexler 1970, supra n. 198 at 1052, 1060; Kinoy 1970, supra n. 251 at 5. See also Harry P. Stumpf, Law and Poverty: A Political Perspective, 1968 Wisconsin Law Review 694–733. 254 Haywood Burns, Racism in American Courts, 38–39, 50–54, in Lefcourt (ed.) 1971, supra n. 179 at 38–54. 255 Ann M. Garfinkle, Carol Lefcourt and Diane B. Schulder, Women’s Servitude under Law, 105, in Lefcourt (ed.) 1972, supra n. 179 at 105–122. 256 Kalman 2005, supra n. 204 at 239. 257 Others were Lee Albert, Robert Hudec, and Larry Simon. 258 Mark Tushnet, Critical Legal Studies: A Political History, 100 Yale Law Journal 1515, 1530–1534 (1991). 259 The incident is thoroughly reviewed in Kalman 2005, supra n. 204 at 234–267. It seems that in the case of Abel, Griffiths, and Trubek, the reasons might relate to questions of personal relationships and scholarship.

The tension was also obvious in legal theory. In the 1960s and 1970s, various forms of interdisciplinary legal scholarship came to prominence, as did theories of rights revitalizing the liberal paradigm.260 Indeed, rights entered the core of legal theory in the 1970s. The journal Human Rights was founded in 1970. It was considered appropriate because human rights were threatened by “extremists who show contempt for society’s laws”, “the politics of polarization”, and politicians who push “repressive laws which erode constitutional and individual liberties.”261 Rights were a concern of the whole legal profession, and all kinds of extremist politics were considered as threats to them. Legal scholars thus became interested in human and civil rights in the late 1960s and, as the crisis of law and society intensified in the early 1970s, these aspects became even more important. The perceptions of and responses to the crisis varied, however. A major response was the theories emphasizing rights.262 One of the reformers in the rights direction was Ronald Dworkin. According to him, both the radical and the conservative perspective on the crisis were based on a positivist conception of law. He thought, therefore, that an alternate theory of law was needed that could connect law to the social and ethical institutions and reduce the ideological conflict. Everyone would thus be committed to the same social convention and principled argument.263 The alternate theory would recognize the distinction between rules and principles and be flexible when needed,264 and place the greatest emphasis on individual rights.265 Dworkin’s attack on positivism was an attempt to point out the impossibility of strict rule positivism and the inevitable amount of discretion, and to synthesize these assumptions in a way that would preserve the idea of the rule of law, adapt judicial discretion within rational boundaries, and produce liberal outcomes. It was a theory of legal liberalism maintaining the faith both in the rule of law and in the glories of the Warren Court. The reactions to the contemporary problems revealed the tension within the profession. Many legal scholars developed alternative theories but remained true to the claim of neutrality and rationality. Even if the majority accepted the fact that there was discretion in judicial decision-making and that the courts did sometimes legislate, they sought to elaborate objective standards for the reasoning in order to minimize subjective

260 Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press 1996), 60–82. 261 Jerome J. Shestack, Foreword, 1 Human Rights vii, vii (1970). The Harvard Civil Rights-Civil Liber- ties Law Review and Columbia Survey of Human Rights Law were also founded in the late 1960s. See section 2.6 above. 262 See, e.g., John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press 1971); Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell Publishing 1974). The former is a liberal theory and the latter is a libertarian theory. 263 Ronald Dworkin, Philosophy and the Critique of Law, 147–149, 153–157, 166–169, in Wolff (ed.) 1971, supra n. 245 at 168–194. 264 Ronald M. Dworkin, The Model of Rules, 35 University of Chicago Law Review 14, 22–29, 32–40 (1967). 265 Ronald Dworkin, Taking Rights Seriously, 180–181, 193–194, in Rostow (ed.) 1971, supra n. 244 at 168–194.

87 discretion.266 Even if many of the realist insights were incorporated into legal thought, the emphasis on the neutrality and rationality of the legal process was great, and legal theory aimed at minimizing the personal input in legal reasoning. The persistent commitment to neutrality and rationality provoked more critical responses, too. Critical scholars labeled the defense of the tradition as liberal legalism, and attacked the foundations of legal thought. Those who were more willing to revise the tradition argued for a more realistic scholarship, and were skeptical of the possibility of neutrality in judicial decision-making.267 Arthur Miller argued that values and ideologies were necessary parts of law and legal scholarship and therefore had to be openly explicated.268 With respect to legal theory and reasoning, faith in liberal legalism distinguished radical scholars from alternative scholars. The frustration with legalism was evident in Lester Mazor’s critique, for whom legalism was “a law-worship which ma[de] law into ideology,” and hence law was “equated with justice and order or it [was] at least assumed to be the principal vehicle of their accomplishment.”269 Accord- ing to the critical view, the “crisis of liberal legalism” followed the fact that law and social ideology were connected and law was thus part of the problem rather than a solution. As legal scholars were developing theories to make law a powerful tool of rights, critical scholars became pessimistic and argued that the problems of law could not be overcome if the problems of society were not resolved first. For the radicals, the crisis of contemporary law was fundamental. As scholars of law and development had realized, law followed the development of society and created a framework for capitalist ideology.270 Thus, the critical scholars argued that there were more fundamental problems to solve than to figure out how law could guarantee peace and equality.271 With the help of the theory of Max Weber, David Trubek pointed out that since modern Western law was an outcome of the development of capitalism and a major contributor to its preservation, it opposed democratic interests.272 The rise of the Marxian-Weberian scholarship and social criticism, as well as the disappointments with the social reforms and the development mission led to the realization of the fundamental bias of law towards the interests of capitalism. The critical notion, then, encouraged elaboration of a theory that could decode the structures of the legal system. The 1960s had been a time of the development of critical thought, and in the early-1970s, critical

266 George C. Christie, Objectivity in the Law, 78 Yale Law Journal 1311, 1312–1314, 1326–1327, 1333– 1334, 1349 (1969). 267 Jan G. Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 Stanford Law Review 169, 192–195 (1968); Graham Hughes, Rules, Policy, and Decision Making, 77 Yale Law Journal 411–439 (1968). 268 Arthur Selwyn Miller, The Myth of Objectivity in Legal Research and Writing, 18 Catholic University Law Review 290, 290–298, 302–306 (1969). 269 Lester Mazor, The Crisis of Liberal Legalism, 81 Yale Law Journal 1032, 1034 (1972). 270 Trubek 1972, supra n. 136 at 15–16. 271 Mazor 1972, supra n. 269 at 1044–1049. 272 David M. Trubek, Max Weber on Law and the Rise of Capitalism, 1972 Wisconsin Law Review 720, 734–745, 749–750.

88 legal scholars began to analyze the fundamental problems of law in order to point out the futility of the liberal paradigm. The critical attitude of the 1960s, the legacy of the New Left, and the vast crisis of society, the economy, science, and law produced the rise of the critical legal academy. By the early 1970s, there were many young scholars who grew up during the turbulence of the previous decade, and acquired a strong basis of critical theoretical knowledge. The revision of Marxist and critical scholarship occurred later in America than in Eu- rope, and European Marxism was still relatively unknown to the American intelligentsia in the early 1970s. When the American scholars realized the need of neo-Marxism for critical thought, they began to introduce the European revision to their colleagues,273 since it was considered as a useful basis for a critical theory that could analyze the elements of society in a critical and dialectical fashion. As the young neo-Marxist scholar, New Left activist, and a future CLS scholar, Karl Klare, wrote in reviewing Marxist science and the conception of totality within it, “[d]ialectical analysis discovers the essence, the universal content or meanings implied in concrete existence.” This was important because “[t]he whole gives meaning to the parts, which are the particular determinants of the whole.”274 Dialectical analysis was essential to critical legal scholarship because the problem of liberal legalism regarded “precisely the combination of formal legal equality and extreme economic inequality which is the distinctive characteristic of the liberal state.”275 Recent scholarship had produced lots of evidence on the social problems, but the reasons for the problems needed further clarification. As activism was waning and the radicals were building careers at the universities, the theoretical understanding of the deep structures and consciousness became the key word of the critical enterprise. The recent development in legal scholarship, debates about legal education, and the social and legal crisis converged in critical legal scholarship. Richard Abel, for instance, called for a legal scholarship that would explore the gap between law in books and law in action, be open with values, and advocate inter-disciplinary methods,276 because “an explanation of change in legal standards must involve not only the element of behavior outside the legal arena, but also behavior inside it, the structure of legal institutions, ideology, attitudes toward law, and the social and political structure of the larger society.”277 The fundamental elements resembled law and society scholarship, but the stress on the ideological and structural factors as well as the relative autonomy of law brought more critical elements to the theory. The transformation of the thought struc-

273 See Dick Howard and Karl E. Klare (eds.), The Unknown Dimension: European Marxism since Lenin (New York: Basic Books 1972). On the development of American academic Marxism, see Bertell Ollman & Edward Vernon (eds.), The Left Academy: Marxism on American Campuses, Vols. I–III. 274 Karl E. Klare, The Critique of Everyday Life, the New Left, and the Unrecognizable Marxism, 9, in Howard and Klare (eds.) 1972, supra n. 272 at 3–33. (Emphasis original). 275 Isaac D. Balbus, The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts (New York: Russell Sage Foundation 1973), 5. 276 Richard L. Abel, Law Books and Books About Law, 26 Stanford Law Review 175, 184–189, 199– 222, 228 (1973). 277 Id. at 221.

89 tures of the critical scholars directed their interest in the construction of law as well as the legal consciousness both within and outside the legal profession. In emphasizing the deep structures of law and consciousness, the constitutive aspects of law also became important. In a lengthy article on the institutions of dispute resolution, Abel analyzed the structures and functions of the Western judiciary, arguing that the western dispute resolution system produced social isolation, depersonalization and abstraction of social relations, and inequalities in access to justice.278 He noted that structural analysis and comparative studies “compels us to recognize the contingency of our own ways, and leads us to look for explanations.”279 Western law was pictured as a social construction which contributed to the preservation of social ideology. The combination of the sociological approach to law with the notion of law as a cultural construct and a perspective on the law's ideological aspects was an important theoretical element on the way toward fundamental criticism of law. It directed the attention toward the notion that law was contingent, yet it served certain purposes, and the relationship between these needed examination and explanation. The irrationality of law and its ideological nature were the two most fundamental points of the critical legal scholarship that was developing in the early 1970s. These were the times when Duncan Kennedy began his criticism of legal reasoning. In 1973, he articulated the view that there was no rational basis for judicial decision-making. Since adjudication was also an act of legislation, there was no justification for the coercive action of the courts. Rules were simply the standards of the mechanics of compromising conflicting interests and had no individual purpose.280 Kennedy’s article was one of the first steps toward a sophisticated philosophical critique of legal reasoning. Using a detailed analysis he sought to point out the inconsistencies in the concept of law and rules and the irrationality of their application. The claim of the irrationality of law was becoming a theory instead of simple criticism. Kennedy’s article was innovative at least in a certain sense. The idea of the irrationality of legal reasoning of course followed from the realists, but Kennedy also reflected on the coercive nature of the legal process, writing that “[t]he process of rule application itself has nothing to do with ‘justice’ or ‘right.’” Rather, it was merely “an unfortunate necessity of the perverse structure of the state of nature, and can neither generate nor implement any value except the value of abiding by the results of the sub- stantively rational postulated legitimate legislative compromise.”281 Here Kennedy was pointing out the circular character of the legitimacy of law. Besides being irrational, Kennedy declared, a purpose of law was also to compel its self-proclaimed legitimacy through the process of rule application. Thus, besides criticism, he also participated in

278 Abel 1973, supra n. 131 at 265, 289–303. 279 Id. at 219. 280 Duncan Kennedy, Legal Formality, 2 Journal of Legal Studies 351, 356–359, 362–365, 367–371, 378– 391 (1973). 281 Id. at 370.

90 the recent debates on the nature of law282 by criticizing the efforts to create rational boundaries for judicial discretion.283 As we saw, the contemporary efforts to place legal reasoning within rational boundaries caused a serious counter-reaction from the radical side. The insistence on rationality appeared to be an effort to maintain the legitimacy of liberal legalism which, for the critical scholars, was the origin of the problem. The radicals aimed at the roots of the legal system since the problems were seen to originate there. Law and poverty was a common topic for legal scholars in the 1960s. While the critical theory was acquiring a more fundamental character, the critical observation that law was structurally biased against the poor became more powerfully explained.284 Marc Galanter, who had learned about the repressive nature of law in the law and development enterprise, also followed the criticism, arguing that since the position of the parties, institutional settings, and the construction of rules all favored those in a better social position and made it more difficult for the less privileged to achieve their rights, equal opportunities required a fundamental restructuring.285 Scholars of the previous decade had already noted that there was structural bias against the poor, and the critical scholars of the 1970s continued this tradition with more theory in their research and more fundamental reforms in their sights. As the criticism was becoming fundamental, it also attacked the new paradigms of legal scholarship which were alternatives to the tradition. Besides rights theories, law and economics was another major jurisprudential trend of the 1960s and 1970s,286 its purpose being to use economic theories in legal analysis.287 Critical legal scholarship responded to these schools of jurisprudence by pointing out their impossibility. As we saw, the argument against rights theories was that they were unable to provide a rational basis for adjudication. C. Edwin Baker, who was about to attack law and economics, noted that both traditional utilitarianism and modern rights theories legitimized state intervention in the market economy in order to promote social equality. Thus, he thought that these two approaches combined could provide a theoretical justification for delimiting individual wealth maximization for the sake of the general good.288 This social theory only preceded the more critical response to law and economics which was seen as a justification of modern capitalism. The nihilist Arthur Leff argued that law and economics were based on irrational social observations and on its self-

282 See Motoaki Funakoshi, Taking Duncan Kennedy Seriously: Ironical Liberal Legalism, 15 Widener Law Review 231, 243–245 (2009). 283 Kennedy 1973, supra n. 280 at 391–398. 284 Lawrence E. Rothstein, The Myth of Sisyphus: Legal Services Efforts on Behalf of the Poor, 7 Uni- versity of Michigan Journal of Law Reform 493, 494–507, 515 (1974). 285 Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Society Review 95, 103–104, 114–124, 135–151 (1974). 286 Kalman 1996, supra n. 260 at 77. Here we are speaking about the modern law and economics that developed in the 1960s. Economic analysis of law dates back at least to the time of legal realism. 287 See, e.g., Duxbury 1995, supra n. 42 at 301–419; Minda 1995, supra n. 42 at 83–105. 288 C. Edwin Baker, Utility and Rights: Two Justifications for State Action Increasing Equality, 84 Yale Law Journal 39, 48–56, 59 (1974).

91 proclaimed values,289 while Baker, continuing his social theory, argued that if efficiency was the determining criterion, the rich had the most rights, and law and economics favored them. Moreover, values within economic analysis of law were derived from market capitalism, which meant restrictions on individual freedom and its subordination to capitalism.290 In addition, Thomas Heller noted that in environmental questions, the emphasis on efficiency excluded essential aspects of values and policies which had to be included to make legal analysis rational in this respect.291 With the analysis of policies and rights it became usual to consider law and economics as just as irrational as traditional jurisprudence and, furthermore, as a guardian of the dominant ideology since it derived its values from it and applied them in legal analysis. In tracing the one- dimensionality and false consciousness of modern legal thought, critical scholars saw that the criteria of values used in traditional jurisprudence and in law and economics were embedded in the social and economic structures. According to the critical scholars, these schools thus simply legitimized the status quo and excluded the possibility of criticism beyond the structures. A crucial point was to go beyond the standards of society so that one would not be constrained by its norms. In touching the fundamentals, the criticism of ideology and structures of law became central propositions of critical legal scholarship. In the search for authenticity, the critical legal scholars aligned themselves with the New Left intelligentsia at the academy. At the heart of critical scholarship was the need for a new legal consciousness; just as at the heart of the counter-culture was the emancipation of the consciousness of the self. The Beats, existentialists, and hippies, for example, yearned toward authenticity and nature.292 The non-conformist wanted to escape the madness of society, become free, and acquire an authentic awareness of the self. Law and economics and the rights theories were critical in pointing out the inadequacy of traditional scholarship, but they did not criticize the inner logic of law itself or the whole basis on which it was constructed. The fundamental questioning of the values of society in critical legal scholarship reflected the divergence from the traditional way of life of the counter-cultures. For some part of critical legal scholarship, then, there was a move from structures to consciousness. Charles Reich wrote in 1970 that the “real target [was] not a structural enemy but consciousness”, and therefore “[t]he creation of a new consciousness [was] the most urgent of America’s real needs.”293 Echoing this notion, Lester Mazor called for a “renewed understanding of our common humanity” that could lead toward a “definition of freedom which is not merely a liberty from, but liberation to; a definition of

289 Arthur Allen Leff, Economic Analysis of Law: Some Realism about Nominalism, 60 Virginia Law Review 451, 456–459, 466–470, 474–481 (1974). 290 C. Edwin Baker, The Ideology of the Economic Analysis of Law, 5 Philosophy and Public Affairs 3, 9–22, 27–46 (1975). 291 Thomas C. Heller, The Importance of Normative Decision-Making: The Limitations of Legal Eco- nomics as a Basis for a Liberal Jurisprudence ─ As Illustrated by the Regulation of Vacation Home De- velopment, 1976 Wisconsin Law Review 385, 394–399, 438, 450–451, 458–459, 467–489, 497–499. 292 Jacoby 1987, supra n. 40 at 65–71, 140–141. 293 Reich 1970, supra n. 248 at 264, 292.

92 equality which does not rest with the evenhanded administration of opportunity to une- quals, but demands a distributive justice which compensates for inequalities, whatever their origin; a definition of participation which is not satisfied with representation, but claims the right to direct involvement in the determination of common good.”294 In the same spirit, Baker wrote that there was a need to develop a “new understanding as to how law can be used to structure the social arena in a way that promotes human welfare and human sovereignty.”295 The shift toward consciousness meant a new understanding of humanity, and law in the pursuit of it. A central tenet was to criticize the traditional legal consciousness and develop a new one. The fundamental element of the critique required a concept that could grasp the consciousness of the legal profession and relate it to society. One of the most famous conceptions of legal consciousness was the one Duncan Kennedy developed in the mid- 1970s in The Rise and Fall of Classical Legal Thought,296 which remained unpublished. According to him, legal consciousness was “a set of concepts and intellectual operations that evolve[d] according to a pattern of its own, and exercise[d] an influence on results distinguishable from those of political power and economic interests.”297 The concept referred to common legal thinking, which was essentially a legal consciousness, but its autonomy was relative to the extent that it mediated law with political and economic ideologies. Legal consciousness was thus a concept that unified the legal profession, and linked it to the political and economic elite.298 Legal consciousness was a concept with which one could describe the traditional legal thought, and incorporate the dominant economic and political values into legal thinking while maintaining its autonomy. It also helped to analyze the differences in legal reasoning within the dominant legal thought, since scholars and lawyers could disagree on particular problems while sharing the fundamental thought structure. The concept of legal consciousness reflected structuralism and the contemporary studies on the genealogy of ideas. In the 1970s, Thomas Kuhn’s concept of the paradigm was a trend, and talk about “paradigm shift” was popular in law and other disciplines.299 Legal consciousness was a means of grasping the shared concepts of the profession within its context and point out the structural biases of the profession, and it thus was a necessary concept for critical scholarship. It was a part of the elaboration of a conceptual apparatus that could grasp the totality of the social order and place it under investigation.

294 Mazor 1972, supra n. 269 at 1052. 295 Baker 1975, supra n. 290 at 48. 296 Duncan Kennedy, The Rise & Fall of Classical Legal Thought (Washington, D.C.: Beard Books 2006). The book was written in the mid-1970s but was not published till 2006. The manuscript, however, circulated in academia and was widely read and cited. (See id. at vii–viii.) References here are to the published edition. Duncan Kennedy has left some other interesting papers unpublished. (Duxbury 1995, supra n. 42 at 456; James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 University of Pennsylvania Law Review 685, n. 46 (1985).) 297 Kennedy 2006, supra n. 296 at 2. 298 Id. at 1–7. 299 Kalman 1996, supra n. 260 at 99.

The criticism of the consciousness behind the law as well as the project of so- called total criticism became crucial tasks for critical legal scholarship. The books Rob- erto Mangabeira Unger published in the mid-1970s represent essential stages in the development of new way of thinking and criticism of contemporaneous.300 Unger’s Knowledge and Politics began with a proclamation: “I have written this essay as an act of hope. It points toward a kind of thought and society that does not yet and may never exist.”301 Unger developed a full critique of the society that could reveal its ultimate irrationality and ideology and establish a context for an alternative ideology for a better society. He argued that liberalism contained antinomies, or paradoxes that caused contradictions and conflicts within consciousness, society, and law.302 These “antinomies ar[o]se out of an identical conception of the way universals (theory, reason, and rules) [we]re related to particulars (fact, desire, and values).”303 Unger’s theory was a synthesis of the critical thought of the 1960s, expressed in philosophical language. At the heart of his theory was the notion of polarities between the universal and the particular, and the fact and the value, and the contradictions, or antinomies, between them. Unger sought to demonstrate that liberal consciousness kept the form and the substance of thought and political activity separated, and this caused paradoxes that were impossible to resolve. Unger argued, however, also that there could be no particular without the universal, and vice versa, and there could be no facts without values. Hence the legal system was also both substance and process, and these two could not be kept separate without logical inconsistencies. The purpose here was to tie all of the elements of law and society together, and thus to produce a theory of total criticism. The aim of the total criticism was to point out that the legal process could not function the way it was supposed to under modern western liberal democracy. As Unger explained, the antinomy of rules and values in legal justice was that it could neither dis- pense values nor be made compatible with them. Adjudication in the sense of the rule of law was thus a paradox, because values, which were subjective, were always present within it and there were no standards of rational decision-making. The subjectivity of values ought to be included in law so that it could promote the true good of human nature.304 By pointing out that rules and facts as well as the processes of thought in which they were connected were always tied to values, Unger sought to demonstrate that legal rules and principles were always preconditioned by the person applying them and by the society that created them. This total criticism was an articulation of the idea that law was bound by the social structures and consciousness, and therefore an understanding of the deep structures and a fundamental alteration was needed to provide real alternatives.

300 Jonathan Turley, The Hitchhiker’s Guide to CLS, Unger, and Deep Thought, 81 Northwestern Univer- sity Law Review 593, 607 (1987). 301 Roberto Mangabeira Unger, Knowledge and Politics (New York: The Free Press 1975), vi. 302 Id. at 1–18, 31–41, 51–55, 61–62, 67–76, 108–109. 303 Id. at 105. 304 Id. at 88–100, 145–190, 237–247.

Besides being the most ambitious effort to produce a critical legal theory, Unger’s book also demonstrated the problems of criticism. The theory was difficult to understand and its reception varied from skeptical to critical. Some scholars argued that Un- ger stretched his criticism too far,305 or that he did not take his analysis far enough.306 In a very critical response, the book was called confusing, superficial, unconvincing, and too abstract and thus empty.307 In addition, the critics noted that Unger had used subjective values of good and bad in assessing modern consciousness, and drawn conclusions without solid logic,308 and that he had delved into basic problems of philosophy without however providing any novel solutions to them and thus falling into the traps of which he accused liberal thought.309 Total criticism involved a new mode of thinking, but Un- ger’s critics claimed that he was not able to build his theory on a basis any more convincing than the liberal tradition he criticized. Nevertheless, Unger’s book was the first attempt to elaborate a systematic and sophisticated theory of total criticism of society and law. Despite the critical response, Unger developed his theory further by concentrating on the role of law in modern society in a book titled accordingly. Its fundamental premise was that modern society required a certain kind of formalist and rational law. The development of society and the paradoxes within law, however, had turned the law into a threat to the prerequisites of society and to the rule of law which, nonetheless, mystified and legitimized the prevailing inequalities. Hence there was “the sense of being surrounded by injustice without knowing where justice lies.”310 The relationship between the form of society and law was crucial because the form of social life “is a meaningful whole of the most comprehensive kind. Each embodies an entire mode of human existence. And for each the law plays a crucial role in revealing and determining

305 Karsten Harries, The Contradictions of Liberal Thought, 85 Yale Law Journal 847, 852, 854 (1976). 306 Philip Soper, Book Review [Knowledge and Politics], 75 Michigan Law Review 1539, 1547–1552 (1977). 307 David A.J. Richards, Book Review [Knowledge and Politics], 44 Fordham Law Review 873, 873–874 (1976). 308 Arthur Allen Leff, Memorandum, 29 Stanford Law Review 879, 881–882, 886–888 (1977). Leff criticized Unger by arguing that there was no justification of why the society Unger described was somehow better than the contemporary one. A curious thing about Unger’s book is that there is an analysis of God at the end, and the book ends with words “Speak, God”. (Unger 1975, supra n. 301 at 295.) It is difficult to say what in fact was his purpose in this ending, but it seems that he was referring to the fact that all knowledge is context-bound. According to Unger, people cannot obtain knowledge of the true essence of things, all knowledge being related to the context of observation. To know the “true essence” of something would be God-like knowledge and that is possible only through divine revelation. Thus, if God never spoke, people were always limited in their knowledge. Now, Unger criticized contemporary law and defined his concept of “good”. Because the knowledge of good was always limited, the analysis had to be stopped at its natural boundary, which was the waiting for God. 309 Anthony T. Kronman, Book Review [Knowledge and Politics], 61 Minnesota Law Review 167, 194– 199 (1976). Kronman’s review is a comprehensive critique of the philosophy of Unger. In the appendix to the review (id. at 200–205) is an interesting correspondence between Kronman and Unger, which, among other things, opens up the religious dimensions of Unger’s philosophy. 310 Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory (New York: The Free Press 1976), 166–223, quotation at 175.

95 the relationship of belief to organization.”311 Traditional social theories had either reified consciousness or disregarded it. Therefore, there was no way to escape the dilemma of the fact that the rule of law could not keep its promises. Social theory had thus to become both metaphysical and political.312 Criticism of Unger’s theory pointed out the huge split in the ways of thinking. The famous sociologist, Talcott Parsons, argued that Unger’s conception of the relation between law and the state, and the significance of formalism for the rule of law were too rigid and not completely applicable to modern society. Unger had not understood the development of society or the role of law within it.313 Unger’s theories were interesting depictions of their time and legal scholarship. Unger reflected the general social criticism and the concepts of false consciousness and one-dimensionality, and sought to point out that the modern liberal theory in its simplest sense was untenable. He dressed these thoughts in very sophisticated and scientific language, and analyzed the scientific aspects of law and society instead of simply criticizing them from his subjective point of view although, according to his critics, he was not able to completely detach himself from subjectivity. Sometimes even labeled as the “master theoretician” of CLS,314 Unger managed to capture many of the essentials of the critical thought of the time in his theory. His books represented the most systematic and sophisticated form of critical legal thought at a time when it was turning into a broader academic movement. By using a multi-disciplinary analysis, Unger sought to point out that the institutions of modern society were based on relative values, and that the legal system that was meant to protect these values was in fact in contradiction to them. Criticism of law was thus moving from the stress on the

311 Id. at 252. 312 Id. at 243–268. 313 Talcott Parsons, Roberto Mangabeira Unger, Law in Modern Society, 12 Law & Society Review 145, 148–149 (1977). 314 Stephen B. Presser, Some Realism about Orphism, or, the Critical Legal Studies Movement and the Great Chain of Being: An English Legal Academic’s Guide to the Current State of American Law, 79 Northwestern University Law Review 869, 873 (1985). Schlegel, on the other hand, argues that Unger’s contribution to CLS has not been great. (John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 Stanford Law Review 391, 400 (1984)). While it is probably true that Unger did not do much for the Conference on Critical Legal Stud- ies, the theories of his early books (Unger 1975, supra n. 301; Unger 1976, supra n. 310) belong among the most systematic and sophisticated CLS theories. It is thus unfortunate that they are not that familiar. As Duxbury writes, Unger’s first two books were “frequently cited, but seldom discussed.” (Neil T. Duxbury, Look Back in Unger: A Retrospective Appraisal of Law in Modern Society, 49 Modern Law Review 658, 658 (1986)). For reviews of Unger's theory, see Allan C. Hutchinson and Patrick J. Mo- nahan, The “Rights” Stuff: Roberto Unger and Beyond, 62 Texas Law Review 1477–1539 (1984); Hugh Collins, Roberto Unger and the Critical Legal Studies Movement, 14 Journal of Law and Society 387– 410 (1987); Russell Pannier, Roberto Unger and the Critical Legal Studies Movement: An Examination and Evaluation, 13 William Mitchell Law Review 647–683 (1987); Duxbury 1986 id.; William Ewald, Unger’s Philosophy: A Critical Legal Study, 97 Yale Law Journal 665–756 (1988); William P. Alford, The Inscrutable Occidental? Implications of Roberto Unger’s Uses and Abuses of the Chinese Past, 64 Texas Law Review 915–972 (1986). See also the symposium on Unger’s theory in 81 Northwestern Uni- versity Law Review 589–952 (1987).

96 biases of law towards the notion that law was not simply political, but also contradictory beneath the surface of apparent rationality. From the mid-1970s onwards, the major tenet of criticism was to articulate the impossibility of the modern system and to call for a thoroughgoing alternative. Duncan Kennedy also elaborated his theory on the contradictions and inconsistencies of law. These consisted of the fact that values were inherent in law and their presence depended on the form. Therefore, values and rules, and form and substance were connected. This resulted in the contradiction between individualism and altruism in law. The former was manifested in formal and neutral rules which supported freedom of individual choice, while the latter was manifested in flexible standards which were used to promote the common good. The problems were, however, that, first, there was no rational way to choose between these two and, second, both of them could be used in similar cases to obtain contradictory results.315 In this “indeterminacy thesis”, Kennedy sought to demonstrate the inherent irrationality of legal reasoning. At the basis of his argument was the notion that both rules and standards, both individualism and altruism, were biased and, moreover, could be used in similar cases to obtain contradictory results. Thus, legal arguments could be manipulated to mean contradictory things. This was a response to the legal theories that sought to construct a rational basis for legal reasoning since, as Kennedy wrote, “we cannot ‘balance’ individualist and altruist values or rules against equitable standards, except in the tautological sense that we can, as a matter of fact, decide if we have to.”316 By arguing that conflict was inherent in law and contradictory decisions could always be made, critical scholarship could point out that recent theories had not solved the problems of formalism but had merely brought new, apparently neutral but equally irrational ideas to legal thought. Critical scholars analyzed the irrationalities of the modern legal system and thought in various respects, although not always in the radical sense of Duncan Kenne- dy. They argued that alternative dispute resolution should be used in assisting the poor because the flaws in the system made traditional legal aid inefficient,317 and that the relationship between law and society caused both the inequalities in the health care services and the inability of the government to deal with the issue.318 In addition, James Atleson, who focused on labor law, noted that traditional policy and scholarship had neglected the realities of labor319 and supported the biases of the law.320 The early criti-

315 Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685, 1710–1724, 1751–1776 (1976). 316 Id. at 1775. 317 Marc Galanter, The Duty Not to Deliver Legal Services, 30 University of Miami Law Review 929, 930–932, 939–945 (1976). 318 Rand E. Rosenblatt, Dual Track Health Care ─ The Decline of the Medicaid Cure, 44 University of Cincinnati Law Review 643, 659–661 (1975). 319 James B. Atleson, Work Group Behavior and Wildcat Strikes: The Causes and Functions of Industrial Civil Disobedience, 34 Ohio State Law Journal 750, 752–754, 759–775, 792–809 (1973). 320 James B. Atleson, Threats to Health and Safety: Employee Self-Help Under the NLRA, 59 Minnesota Law Review 647, 656–664, 667–675, 686–699, 702–703 (1975).

97 cal legal studies reflected the “law is politics” argument by suggesting that legal standards originated in political processes which in turn reflected social and economic interests. It was then further argued that law forced the legitimacy of the existing biased institutions and reshaped the consciousness of people. By demonstrating that law was a social construct but also had a constitutive aspect, the critics reflected the New Left ideas of one-dimensional society and the alienation of the individual. Critical legal scholarship was a diversified phenomenon, but at its heart lay the idea of analyzing the paradoxes and inconsistencies of modern law. Critical legal scholars did not consider the prevailing legal theory formalist in the extreme sense but they nonetheless noted that the formalist elements in legal reasoning maintained the idea of the neutrality and rationality of law.321 Rather than formalism, it was the structures and the consciousness that had to be criticized. As noted by David Nelken, whereas the various forms of sociological jurisprudence analyzed law in context, critical scholarship analyzed the context by studying the ways law created rationality from irrationality and by analyzing the values and policies underlying legal doctrine.322 For the critics, the relationship between law and society was complex and the ideological functions of law had to be studied as well, because the rule of law, as Morton Horwitz declared, created formal equality but promoted substantive inequality, encouraged the wealthy to oppress the weak by endorsing procedural justice, and depersonalized human relations through rational legality.323 Critical analysis was set to extirpate these contradictions reflected in law which then shrouded them in the language of formality. By the mid-1970s, critical legal scholars had become convinced that modern law was unable to fulfill its promises, and they took it as their task to reveal this situation. Critical legal scholarship developed during the 1970s when the general social atmosphere was becoming more conservative following the radicalism of the 1960s. This reflected the legacy of the New Left in the academy. Just as the New Left had searched for a participatory democracy that would fulfill the promises of the American Revolu- tion, critical legal scholarship sought to transcend the false consciousness of liberal legalism. As the young would-be scholars who grew up in the New Left atmosphere matured, they began to set out their critical thoughts in the form of scholarship. As Duncan Kennedy has since described the situation, he was a bohemian youngster in a black tur- tleneck reading French existentialism and philosophy, and then, as a young teacher he was influenced by the critical scholarship of Roberto Unger, Morton Horwitz, Karl Klare, and Al Katz.324 Critical scholars were people identifying with the New Left cause and the non-conformist ideology of the 1960s. The impulses of critical scholarship came from society, and the development of the theory reflected the currents of philosophy and science. The question was also of young scholars who were disappointed with the tradi-

321 Unger 1976, supra n. 310 at 193–196; Kennedy 1976, supra n. 313 at 1731–1732. 322 David Nelken, Critical Criminal Law, 14 Journal of Law and Society 105, 110 (1987). 323 Morton J. Horwitz, The Rule of Law: An Unqualified Human Good? 86 Yale Law Journal 561, 566 (1977). 324 A Conversation with Duncan Kennedy, 2/24 The Advocate 56, 59 (1994).

98 tional academy and wanted to challenge the authority of the old faculty and traditional scholarship. As the critical scholars began to pay attention to the causes of the legal crisis, they started to examine the dynamics of legal thought and to criticize its ideological aspects. Critical legal scholarship did not simply criticize law but sought to analyze its deep structures and to point out their impact on the social reality and the law. The radical criticism was a synthesis of social radicalism and the recent critical and alternative scholarship both in law and the academia in general. It developed in the early 1970s by turning critical and sociological jurisprudence into a more systematic critical theory, and even though there still were only a few articles in the mid-1970s, the latter part of the decade witnessed a tremendous increase in the critical legal literature and the organization of the critical movement. Nevertheless, the image of the development of critical legal scholarship would be inadequate without a look at some particular aspects of its development. Thus, I shall briefly examine the development of the critical thought in legal history, constitutional law, and criminal law, because these insights provide further perspectives.

3.1.4 Critical perspectives on legal history

Since alternative scholarship endorsed inter-disciplinary legal studies, legal history was an important part of the law and society movement. It was also important for critical legal scholarship because of the need to point out the development of law in order to reveal its social functions. Sociological legal history had been developing since the 1950s, and by the 1970s, there was a tradition of alternative legal history that studied the history of the social functions of law325 and the general context in which the legal changes took place.326 Willard Hurst, law and society scholar, and a remarkable figure in American legal history, criticized traditional legal history for its emphasis on courts and doctrines and for its neglect of social factors, arguing that legal history had to focus on law in action and relate law to other spheres of society, such as the economy, religion and social class.327 Hurst, however, distanced himself from the Marxist tradition. The difference between the history of law and society on the one hand, and Marxist history on the other, was that the former “stress the economic (in the broad sense) but do not ignore the complementary role of other factors.”328 The difference between the critical-dialectical method of Marxism and the functionalism of law and society scholarship was not tremendous, but it reflected the dynamic between sociological and critical jurisprudence. It was this dynamic from which critical legal history originated.

325 William J. Chambliss, A Sociological Analysis of the Law of Vagrancy, 12 Social Problems 67–77 (1964). 326 See William J. Chambliss (ed.), Crime and the Legal Process (New York: McGraw-Hill 1969), 8–10. 327 James Willard Hurst, Legal Elements in United States History, V Perspectives in American History 1, 14–36 (1971). 328 Auerbach; Garrison; Hurst; Mermin 1961, supra n. 173 at 86.

Critical legal history emerged from the notion that law withheld aspects of consciousness and power which sometimes functioned autonomously and sometimes reflected the tensions from which law originated back on society. For instance, in an article on the emergence of the instrumental conception of law in Antebellum America, Morton Horwitz argued that law did not simply respond to social change, but judges had also used law to encourage social change and promote commercial interests.329 In addition, in an analysis of the theory of law and society legal history, Mark Tushnet noted that Willard Hurst’s conception of law was based on an optimistic presumption of social consensus and ignored the relation between the social class struggle and law.330 Critical analysis of the history of law had to acknowledge the complex interdependence between law and society because the functional perspective, it was argued, provided too rational an image of legal history. As in critical legal theory, legal consciousness and the structures of law were essential aspects of critical legal history. This was clear in the scholarship of Morton Horwitz, the most important figure in the critical legal history of the 1970s. He thought that traditional legal history was very conservative because it focused on the doctrine and the profession, emphasized origins and continuity, and had neglected the relationship between law and politics, as well as the various conflicts that had characterized the history of law. Thus, wrote Horwitz, traditional legal history “never conceives of legal change as the result of political struggle but only as a result of changes in the received tradition brought about as jurisprudential thought progressively unfolds new truths.”331 Horwitz criticized traditional legal history, not law and society legal history, but the point was that legal history should analyze the inner conflicts of law and see law as a result of social and political conflicts. In the course of the decade, Horwitz continued his project of combining the instrumental conception of law with Marxist elements. He noted that the changes in property law responded to the needs of the developing economy in the early nineteenth century,332 and that the changes in contract law reflected the rise of market capitalism at the same time.333 If Marxism means stress on the economy and class struggle in explaining social inequities,334 then Horwitz’s legal history was Marxist to a large extent even though he did not underline the fact. He analyzed the changes in law against their economic background and noted that as the instrumental conception of law developed, legal

329 Morton J. Horwitz, The Emergence of an Instrumental Conception of American Law, 1780–1820, V Perspectives in American History 285, 291 (1971). 330 Mark Tushnet, Lumber and the Legal Process, 1972 Wisconsin Law Review 114, 115, 119, 121–123, 127, 132. 331 Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 Ameri- can Journal of Legal History 275, 275–283, 292 (1973), quotation at 283. 332 Morton J. Horwitz, The Transformation in the Conception of Property in American Law, 1780–1860, 40 University of Chicago Law Review 248, 251–252, 255–261, 270, 275–278 (1973). 333 Morton J. Horwitz, The Historical Foundations of Modern Contract Law, 87 Harvard Law Review 917, 946–955 (1974). 334 See, e.g., Michael Merrill and Michael Wallace, Marxism and History, 209, in Ollman & Vernoff 1982, supra n. 40 at 202–241.

100 doctrines were changed to promote the interests of the markets and to support economic growth. The studies on the historical origins of the law propped up the critical argument that the law favored the rich over the poor. American historiography in general was changing at the time. There was a long tradition of critical revision of the past of the republic,335 and in the 1970s, historians revised Marxism to suit the modern circumstances and to cleanse it from the stigma of socialist demagoguery.336 Largely because of the scholarship of Hurst,337 legal history also had turned toward social history to a significant extent,338 which led “one to doubt Horwitz’s conclusion that the conservative tradition is dominant in the writing of Amer- ican legal history.”339 Moreover, the early response to Horwitz’s articles was relatively positive.340 The target of the criticism seems to have been more the general scholarly tradition than contemporary legal history in fact. Horwitz felt that the legal history writing in general was conservative, and his scholarship inspired students who felt the same way.341 His methods were unconventional, at least to the extent that there was no similar legal historian in the 1970s even if socially oriented legal history in general was becoming more widespread. It is obvious that critical scholars viewed the tradition in caricaturized terms but this followed from the way they felt the tradition at the time. Whatever the state of the general scholarship in the 1970s, the connection between modern capitalist consciousness and law became pronounced in the critical history writing. Horwitz focused on the modern origins of the connection, noting that the formalism of the latter part of the nineteenth century resulted from the convergence and synthesis of the professional need to create scientific jurisprudence, the need of the economic elite

335 Charles Beard was a pioneer who in the early twentieth century reviewed the drafting of the constitution, concluding that the Constitution was drafted to protect economic interests. (Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Free Press. New York 1965) (1913).) In the 1960s, Gabriel Kolko argued that much of the progressive legislation of the early twentieth century was passed in the interests of corporate capitalism, and thus the “progressive” era was in fact an era of conservatism. (Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916 (New York: The Free Press of Glencoe 1963).) 336 See, e.g., Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books 1972), 25–49. 337 Robert W. Gordon, J. Willard Hurst and the Common Law Tradition in American Legal History, 10 Law & Society Review 9, 11–12, 45–55 (1975). 338 William E. Nelson, Legal History, 1973 Annual Survey of American Law 625–640 (1974). 339 Id. at 626. 340 Wythe Holt, Now and Then: The Uncertain State of Nineteenth-Century American Legal History, 7 Indiana Law Review 615, 616–617, 620, 624, 626, 632, 640–641 (1974); Peggy Rabkin, The Origins of Law Reform: The Social Significance of the Nineteenth Century Codification Movement and its Contri- bution to the Passage of the Early Married Women’s Property Acts, 24 Buffalo Law Review 683, 684– 686; Edward M. Gaffney Jr., History and Legal Interpretation: The Early Distortion of the Fourteenth Amendment by the Gilded Age Court, 25 Catholic University Law Review 207, 207–212 (1976). Holt noted that although Horwitz’s thesis was convincing he needed further support for his arguments. (Holt 1974, id. at. 632.) Of course, Holt was himself a critical scholar, as will be seen later. 341 See Laura Kalman, Transformations, 37 Tulsa Law Review 849, 849 (2002). Kalman writes that she decided on her career because of the inspiration the critical and unconventional articles of Horwitz brought to her. It thus seems plausible that the scholarly tradition of the 1970s in general was more conservative than the recent scholarship has been led to assume.

101 to stabilize the law, and the fact that the interests of these two groups coincided.342 His- torical development had also produced the radical separation between law and politics and the unfounded belief in neutral legalism.343 Historical studies expanded the critical notions on the conflicting nature of law. Thus, the biases and inconsistencies beyond the apparent neutrality and rationality were seen as historical consequences. The literature and approaches of critical legal history increased after the mid- 1970s, the purpose often being to go beyond the social context of the law and society history.344 In a Marxist analysis of the employment at will rule, Jay Feinman argued that the rule had developed apart from contract law in order to promote the domination of the labor force by the capitalists.345 Marxist analysis was often used to point out the myth of neutrality and the class biases of law, as was evident in the study by Mark Tushnet, who analyzed the inner dynamic of law. Relying on Weber, he pointed out that the law on slavery evolved from complex situations into a unified body of law. A concept of formal rationality emerged, allowing the judges to apply the law in the best interests of the slave-owners while maintaining a humane ideology.346 The purpose of the analysis of the connections between the relative autonomy and inner dynamic of law on the one hand, and the social circumstances and ideology on the other, was to point out how law affected people’s consciousness and was a reason for false consciousness. Crit- ical legal history acquired the aspect of ideology and the relative autonomy of law, both of which marked its difference from the functionalist histories. The clash between a modern, functionalist legal history and critical legal history came into the open after the mid-decade in the wake of the publication of Lawrence Friedman's A History of American Law. Friedman, himself a law and society scholar, sought to write a history of law in its social context. According to him, law was a “mir- ror of society”, and hence legal history took “nothing as historical accident, nothing as autonomous, everything as relative and molded by economy and society.”347 This, however, did not please the critical scholars. Lester Mazor argued that Friedman provided “neither a social history of law in the United States nor the means from which we might construct one.”348 And Mark Tushnet criticized Friedman for neglecting the relative

342 Morton J. Horwitz, The Rise of Legal Formalism, 19 American Journal of Legal History 251, 256 (1975). 343 Morton J. Horwitz, The Legacy of 1776 in Legal and Economic Thought, 19 Journal of Law and Eco- nomics 621, 624–627, 631–632 (1976). 344 Gordon 1975, supra n. 337 at 51–55. Gordon has called the legal history of Hurst realist-functionalism, thus characterizing it as a variation of the traditional legal history. (On the differences between realist- functionalist and critical legal history, see Robert Gordon, Critical Legal Histories, 36 Stanford Law Re- view 57, 64, 67, 100–102, n. 120 (1984).) 345 Jay M. Feinman, The Development of the Employment at Will Rule, 20 American Journal of Legal History 118, 131–134 (1976). 346 Mark Tushnet, The American Law of Slavery, 1810–1860: A Study in the Persistence of Legal Auton- omy, 10 Law & Society Review 119, 152–153, 160, 177–180 (1975). 347 Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster 1973), 10. 348 Lester Mazor, Book Review [A History of American Law], 60 Minnesota Law Review 147, 158 (1975).

102 autonomy and the ideological function of law and for applying a certain kind of vulgar Marxist theory that provided only partial explanations.349 We saw that structures and consciousness were essential to critical legal scholarship and history, and the neglect of them was what differentiated sociological approaches from it. Tushnet concluded that Friedman’s book was to be regarded as “the last great work of the 1950’s, not as the first work of the 1970’s or 1980’s.”350 Critical legal history marked another turn in the writing of American legal history. It was an important part of the development of critical legal scholarship, providing many arguments on the history of modern legal institutions. Its purpose was to analyze the history of the rule of law, but, as Horwitz wrote, it was to do more than “simply to pile on evidence of the hypocritical character of its claims to political neutrality.”351 Critical legal history analyzed the development and changes in law in a complicated manner in order to reveal its true nature, origins, and purposes. It was not scholarship simply for the sake of history, but had a role in contemporary times as well. It pointed out the origins of modern institutions and thus contributed to the demystifying of ideology. It did not seek to legitimize the authority of the modern state but to delegitimize it. Critical legal history developed within the dynamic of legal thought in the late 1960s and during the 1970s. The realistic instrumentalism of law and society and recent historiography contributed to its development, and it rose out of the conflict between the different approaches. Critical scholars were dissatisfied with the functionalism of the law and society legal history, and pursued a more complicated theory of the development of law. Critical legal history did not simply criticize, but also sought to explain the development and changes in law in order to gain a better understanding of them. In doing so it applied the methods of Marxism and critical revision of history, and thus related the methods of history to the recent trends in critical legal scholarship. Horwitz greatly developed the methodology and substance of critical legal history in a series of articles published in the 1970s and, as will be seen later, his book became one of the most important pieces of critical legal studies literature.

3.1.5 Constitutional law and criticism

The situation in constitutional law was quite confused in the mid-1960s.352 Constitu- tional law was often at the center of jurisprudential debates because of the central position of the Constitution and the Supreme Court. Recent Supreme Court decisions had provoked lots of comment, such as the debate on neutral principles which had exposed the vulnerable state of constitutional doctrine. Scholars could thus lament that even after

349 Mark V. Tushnet, Perspectives on the Development of American Law: A Critical Review of Fried- man’s “A History of American Law”, 1977 Wisconsin Law Review 81, 82–103. 350 Id. at 83. 351 Horwitz 1977, supra n. 323 at 566. 352 Arthur Selwyn Miller, Presidential Power to Impound Appropriated Funds: An Exercise in Constitu- tional Decision-Making, 43 North Carolina Law Review 502, 515–519 (1965).

103 a thousand years of history there was “no accepted conception of the nature of the judicial process.”353 At least since the time of legal realism, almost every legal scholar acknowledged that courts made law in accordance with the changes in society. Howev- er, the traditional view nonetheless held that the courts should declare “as law only the most widely shared values” or principles that will “gain general assent,”354 and maintained the ideals of the rule of law and neutrality of law because of their important sym- bolic functions.355 The Warren Court era made the traditionalists stress the division between legislative and judicial functions,356 as well as reason and consistency in judicial decision-making,357 while a more critical view held that the faith in neutrality and rationality merely perpetuated many myths,358 and thus jurisprudence and the courts ought to advocate value arguments to promote social good.359 There was no extreme formalism in constitutional scholarship but, according to the traditional view, law was to be as rational and neutral as possible. While the traditionalists wanted to maintain these notions, alternative scholars of the 1960s and 1970s endorsed a more social jurisprudence. Critical legal scholarship emanated from the tension between the traditional and the alternative views. Although comprehensive critical constitutional theory was not developed until the end of the 1970s, there were critical constitutional scholars before that.360 The criticism of constitutional law evolved during the 1960s and 1970s through a series of various forms of criticism and articles pointing out the flaws in the traditional constitutional theory and thus contributing to the development of the critical thought. Realist notions with respect to constitutional law were clear in the late sixties. For instance, Arthur Miller, who participated widely in the legal debates of the time and

353 Arthur Selwyn Miller, Some Pervasive Myths about the United States Supreme Court, 10 Saint Louis University Law Journal 153, 170 (1965). 354 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indian- apolis: The Bobbs-Merrill 1962), 239. 355 Paul J. Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harvard Law Review 56, 62–70 (1965). 356 Philip B. Kurland, Toward a Political Supreme Court, 37 University of Chicago Law Review 19, 20– 22 (1965). 357 Alexander M. Bickel, The Supreme Court and the Idea of Progress (New Haven: Yale University Press 1978), 45–100, 176–177. The book was originally published in 1970. In 1962, Bickel held more realist notions about law but had become more conservative by 1970. 358 Miller 1965, supra n. 353 at 153–157. 359 Arthur Selwyn Miller & Alan W. Scheflin, The Power of the Supreme Court in the Age of the Positive State: A Preliminary Excursus Part One: On Candor and the Court, or, Why Bamboozle the Natives? 1967 Duke Law Journal 273, 279–282, 296–299. 360 A good example of realist and alternative constitutional theory of the late 1960s is Arthur Selwyn Miller, The Supreme Court and American Capitalism (New York: The Free Press 1968). It can be seen as a synthesis of his post-realist constitutional jurisprudence. Its specific purpose was to analyze the relationship between Supreme Court decisions and the economic order and between corporations and the Consti- tution, and its basic tenets could be described as follows. The constitution and the Supreme Court are mixed with the political and economic fields. Thus, the Constitution is a living document responding to the felt necessities of the time. Constitutional decision-making is not purely arbitrary, although personal biases of the judge and the pursuit of political balance affect it. Moreover, the Court is rather an instrument than a cause of change. In addition, the division between state powers as well as the public and the private domain has been blurred during the constitutional development.

104 who was one of the most prominent realist and critical constitutional scholars of the 1960s, encouraged an impact analysis of the Supreme Court decisions.361 Later he developed a jurisprudence of consequences that would openly allow policy considerations in judicial decision-making and incorporate the Universal Declaration of Human Rights into the Constitution of the United States.362 The realist insight on the Supreme Court stressed the impact of the Court’s decisions on society and therefore encouraged policy analysis over certainty and neutrality. Political jurisprudence was the main realist analysis of the courts, but legal scholars became more interested in the issue as well. Policy analysis of the Supreme Court increased in the 1960s. Scholars of political jurisprudence had suspended “belief in the whole web and myth of specialty, mystery and tradition that surrounds and supports the judge.” Rather, the purpose was to consider the judge as “one of many government employees, operating in a bureaucratic structure, performing certain governmental services and generally engaging in the same political processes as his fellow public servants.”363 Legal scholars were not, however, pleased with the behavioralism or political determinism of political jurisprudence because the Supreme Court was “concerned with formulating and promulgating juristic theories of politics.”364 Legal scholars had to pay attention not only to the policy functions of the courts but also to their legal limits and formulations. Critical constitutional theory was about to be formed as the notions of the political scientists were adapted to the contemporary legal debates. The constitutional status of contemporary problems was naturally an interesting topic for legal scholars and communitarian values became important arguments. Popular subjects were the typical problems of concern, such as welfare rights,365 poverty,366 and the discrimination against the African Americans367 and women.368 Scholars were often concerned with the ambiguous status of the constitutional protection of the rights of the less privileged classes, arguing that constitutional adjudication in fact discriminated against them or that the law should be changed to guarantee equal rights better. The concern of the alternative scholars was that the traditional doctrinal analysis did not examine the law in action while emphasizing rationality. They therefore took the factual problems as their subjects and developed methodologies to explore them.

361 Arthur Selwyn Miller, On the Need for “Impact Analysis” of Supreme Court Decisions, 53 Georgetown Law Journal 365–401 (1965). 362 Arthur Selwyn Miller, Toward a Concept of Constitutional Duty, 1968 Supreme Court Review 199– 246. 363 Shapiro 1964, supra n. 69 at 297. 364 Miller 1968, supra n. 360 at 30. 365 Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale Law Journal 1245–1257 (1965). 366 Frank I. Michelman, On Protecting the Poor through the Fourteenth Amendment, 83 Harvard Law Review 7–59 (1969). 367 Arthur Kinoy, The Constitutional Right of Negro Freedom, 21 Rutgers Law Review 387–441 (1967). Critical race theory will be dealt with later in the book. 368 Barbara A. Brown, Thomas I. Emerson, Gail Falk, Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale Law Journal 871–985 (1971). Feminist legal theory will be dealt with later in the book.

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Critical scholars were not pleased with the pursuit of rationality and neutrality in judicial decision-making because they thought that it concealed the motives for the decisions and thus contributed to the persistence of the problems. For instance, Mark Tushnet argued that inconsistent doctrines and discriminatory practices followed the policy motives behind the decisions369 and the need to obtain a majority for the conservative ideology.370 David Shapiro also considered the conservative ideology behind the decisions,371 and William Clune analyzed how individualist and formalist interpretation weakened the protection of the constitutional rights of the poor.372 The proposition following the criticism was that the courts should not simply protect but also promote economic equality.373 According to the critical scholars, the apparent neutrality of legal reasoning exacerbated social inequality because law and legal thinking were structured to favor the powerful classes. Constitutional scholars followed the critical argument that since there was no rational basis for the judicial decision-making which always promoted certain interests, policy considerations should be taken into account. The schism between the traditionalist’s drive toward rationality and the critics’ urge toward policy analysis became obvious in the commentaries on the Supreme Court’s opinions. Indeed, the rights of the individual citizen and the right to personal liberty were very controversial issues. The abortion case, in which the Court had opined that it violated the Constitution if abortion during the first trimester of pregnancy was criminalized, was probably the most controversial decision of the 1970s, bringing up the controversies over rational and arbitrary decision-making.374 While the point of the traditionalists criticizing the Court was to limit the revival of substantive due process and create rational and neutral structures for judicial decision-making, the alternative and critical scholars sought to put legal reasoning on terms with modern society. It was argued, for example, that the abortion decision was distinguished from the infamous substantive due process decisions of the early twentieth century by the fact that it conformed to the opinion of the majority of the people.375 Furthermore, although not writ-

369 Mark Tushnet, “…And Only Wealth Will Buy You Justice” ─ Some Notes on the Supreme Court: 1972 Term, 1974 Wisconsin Law Review 177, 178–182, 189–191, 194, 196–197. 370 Mark Tushnet, The Constitutional Right to One’s Good Name: An Examination of the Scholarship of Mr. Justice Rehnquist, 64 Kentucky Law Journal 753, 763–766 (1976). 371 David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harvard Law Review 293, 293, 299, 307, 341–343 (1976). 372 William H. Clune III, The Supreme Court Treatment of Wealth Discriminations under the Fourteenth Amendment, 1975 Supreme Court Review 289, 302–303, 333–334, 344–352. 373 Lawrence E. Rothstein, Business as Usual? The Judicial Expansion of Welfare Rights, 50 Journal of Urban Law 1, 16–19 (1972). 374 See Roe v. Wade 410 U.S. 113 (1973). For criticism of the case, see, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale Law Journal 920–949 (1973); Richard A. Epstein, Substantive Due Process by any Other Name: The Abortion Cases, 1973 Supreme Court Review 159– 185. For defense of the decision, see, e.g., Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 Boston University Law Review 765–784 (1973). Much of the criticism of the decision did not concern the opinion per se but the way it was reached. 375 Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A preliminary Inquiry, 61 Virginia Law Review 1187, 1228 (1975). The

106 ing about the abortion case, Tushnet sought to create standards for substantive due process, claiming that it was acceptable when the right in question was socially important, recognized in practice, had close connections to constitutional rights, was ordinarily exercised in legal analysis, and was important in terms of common sense.376 Alternative scholarship encouraged flexible legal reasoning that would acknowledge the values and policies the case concerned. Whereas traditional legal scholarship sought to increase the rationality and neutrality of legal reasoning, alternative legal scholarship sought to adapt the policy and value aspects into terms of a more just society and, whereas the former was concerned with the flaws in legal reasoning, the latter paid attention to the motives behind the reasoning. The critical notions entered the constitutional analysis in the various studies. Al- ternative constitutional scholarship took a stand on many modern topics. Some scholars stressed the obligations of man toward nature,377 while others noted that the increase in presidential powers was harmful to democracy.378 Environmentalism began to interest legal scholars in the 1970s, and participatory democracy was still an important topic. The ideological elements also became apparent in some of the critical analyses. Com- menting on freedom of expression and commercial interests, C. Edwin Baker argued that commercial speech should not be constitutionally protected because it was not involved in the self-realization of the individual that freedom of speech was meant to protect and, furthermore, it coerced people and promoted selfishness and inequality.379 Even critical scholars stressed the significance of individualism, but their concept of individualism differed from the traditional one, and they also emphasized the communitarian context in which it was pursued. Following the spirit of Marcuse, they argued that modern individualism was coerced by the economic structures and was therefore not authentic. Critical scholars thus reconsidered old concepts, such as freedom of expression, in the changed context so that they could be used in the pursuit of true individual rights and equality. The critical constitutional literature of the 1960s and 1970s was closer to realism and progressive liberalism rather than radical. Nevertheless, the connection between critical legal scholarship and constitutional law was clear. Traditional scholarship was criticized for its urge toward rationality and neutrality which, the critical scholars insisted, masked the real motives and impact of the law. Critical scholarship was not simply destructive but also sought to develop alternative doctrines that would promote the val- point of the article was to show that the information on which the decisions of the Supreme Court were based was derived from various sources. 376 Mark Tushnet, The Newer Property: Suggestion for the Revival of Substantive Due Process, 1975 Supreme Court Review 261, 277–288. 377 Mark Sagoff, On Preserving the Natural Environment, 84 Yale Law Journal 205–267 (1974); Laurence H. Tribe, Ways not to Think about Plastic Trees: New Foundations for Environmental Law, 83 Yale Law Journal 1315–1348 (1974). 378 Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Adminis- trative Law Review 299, 324 (1976). 379 C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa Law Review 1, 3–10, 15–16, 23–25, 35, 54–56 (1976).

107 ues and policies the scholars considered important, and thus it often took a stand on controversial contemporary problems. Criticism of constitutional law reflected the critical thought of the time in various ways and, by the mid-1970s, the elements of the ideology of constitutional law were obvious in the discourse.

3.1.6 Critical scholarship on criminal law

Criminal law was an important part of legal scholarship in the 1960s and 1970s. This was largely due to the growing crime rates and juvenile delinquency. Aside from the war on poverty there was a war on crime.380 In addition, the Supreme Court made some of its most controversial decisions with respect to criminal procedure.381 Thus, at the time of social turbulence, rising crime, controversies over criminal policy, and the rise of alternative scholarship, problems of crime became an interesting topic for academia. During the 1960s, alternative criminology became popular. The first decades of the century had already witnessed efforts to produce sociological criminal law scholarship, but no fundamental change of paradigm occurred until the 1950s, when the combination of legal scholarship and social science was once again on the rise.382 The rise of “critical criminology”, which occurred with the rise of critical sociology, criticized both the scholarship and its object, having a critical perspective on crime both as a social and as a legal phenomenon.383 Although critical criminology expanded enormously in the 1970s,384 critical legal scholars remained relatively uninterested in criminal law.385 Crit- ical criminal law scholarship, mostly a scholarship of sociology and criminology, focused more on the functional and procedural aspects of law than on doctrine. In any event, changes in the scholarship provide a valuable perspective on the development of the critical thought. Critical scholarship on crime and criminal law was boosted in the 1960s. The increased attention to the biases of law against the poor was also apparent in criminal law scholarship. A common notion amongst the alternative scholars was that “in reality the law regularly works to the disadvantage of the already more disadvantaged classes.”386

380 The national project against crime was called “The Challenge of Crime in a Free Society”. The findings of the project were originally published in ten volumes, but selections have been issued in Robert W. Winslow, Crime in a Free Society: Selections from the President’s Commission on Law Enforcement and Administration of Justice (Belmont, California: Dickenson Publishing Company 1968). 381 Probably the most controversial decision was Miranda v. Arizona, 384 U.S. 436 (1966), which held that the accused must be informed of his rights if his testimony is to be admissible in court. On the criminal cases and the Warren Court, see, e.g., Horwitz 1997, supra n. 33 at 91–98; Friedman 1993, supra n. 36 at 300–302. 382 Richard Quinney, Introduction: Toward a Sociology of Criminal Law, 1–4, in Richard Quinney (ed.), Crime and Justice in Society (Boston: Little, Brown and Company 1969), 1–30. 383 Gresham M. Sykes, The Rise of Critical Criminology, 65 Journal of Criminal Law and Criminology 206, 206–210 (1974). 384 Robert M. Bohm, Radical Criminology ─ An Explication, 19 Criminology 565, 565–566 (1982). 385 Nelken 1987, supra n. 322 at 105. 386 Richard D. Schwartz. & Jerome H. Skolnick, Two Studies of Legal Stigma, 10 Social Problems 133, 142 (1962).

108

The scholars noted that poor people were more likely to be incarcerated because they were often unable to raise bail,387 were discriminated in hearings and bail settings,388 and the defense system was unfavorable to them.389 It was also noted that the sentence often depended on the race of the accused.390 Studies on self-reported crime had revealed that crime is general in all social classes, which directed attention to discretion in the administration of justice,391 the general notion being that there were various disparities within the administration of criminal justice, some of which were unjustified.392 Empirical studies supported the critical opinion by pointing out that the “perception of unequal treatment [was] the single most important source of popular dissatisfaction with the American legal system.”393 The studies reflected the rising importance of social equality and the rising awareness of the biases of law as well as the fact that empirical and sociological studies were appearing more frequently. Alternative scholars wanted to apply alternative methods in legal research, criticize the system, and participate in political debates. The discrepancy between the ideal and the reality of the administration of criminal justice was the main concern of the critical studies. The critical argument held that “[t]he reality of sanctioning in the American criminal court, in short, is a far cry from an idea-typical formal-rational administration of justice in which a determination is reached by measuring the facts of the case against the sole yardstick of an abstract, general category of legally proscribed acts.”394 An empirical study on the impact of the notorious Miranda decision on the interrogation procedure revealed that in fact the decision had very little impact.395 Furthermore, another study pointed out that the psychological context of the interrogations undermined the effects of simple information on rights which meant that an advocate was needed to make the rights of the suspect effective.396 Besides discrimination, the researchers sought to point out that the rights of the suspect did not hamper the criminal procedure. Since the structures of the administra-

387 Anne Rankin, The Effect of Pretrial Detention, 39 New York University Law Review 641–655 (1964). 388 Mark Berger, Police Field Citations in New Haven, 1972 Wisconsin Law Review 382–417. 389 Jules B. Gerard, A Preliminary Report on the Defense of Indigents in Missouri, 1964 Washington University Law Quarterly 270–332. 390 Henry Allen Bullock, Significance of the Racial Factors in the Length of Prison Sentences, 52 Journal of Criminal Law, Criminology and Police Science 411–417 (1961). 391 Winslow 1968, supra n. 380 at 106–107; David F. Greenberg, Marxist Criminology, 165–166 in Ber- tell Ollman & Edward Vernoff (eds.), The Left Academy: Marxist Scholarship on American Campuses, Vol. III (New York: Praeger 1986), 164–207. See also Wayne R. La Fave, Police Discretion, in Quinney (ed.) 1969, supra n. 382 at 109–125. In general on the “discovery of hidden crime” and its consequences, see Janne Kivivuori, Discovery of Hidden Crime: Self-Report Delinquency Surveys in Criminal Policy Context (Oxford: Oxford University Press 2011), 39–122. 392 Stuart S. Nagel, Disparities in Criminal Procedure, 14 UCLA Law Review 1272, 1296 (1967). 393 Sarat 1977, supra n. 162 at 434. 394 Balbus 1973, supra n. 275 at 22–23. 395 Michael Wald, Richard Ayres, David W. Hess, Mark Schantz, Charles H. Whitebread II, Interroga- tions in New Haven: The Impact of Miranda, 76 Yale Law Journal 1519, 1523, 1536, 1539, 1550–1556, 1565–1567, 1577–1578, 1613–1616 (1967). 396 John Griffiths & Richard D. Ayres, A Postscript to the Miranda Project: Interrogations of Draft Pro- testers, 77 Yale Law Journal 300, 315–319 (1967).

109 tion of criminal justice caused problems that were difficult to solve on the surface level, the studies and further measures were needed. The functions of punishments were also analyzed, since the fundamentals of the criminal justice system were concerned. Scholars studying the impact of punishment argued that the stigmatizing effect of legal sanctions varied according to the social status of the defendant.397 They also noted that the deterrent effect of punishment varied according to the type of crime and offender, but the criminal system imposed the most severe punishments on those least likely to be deterred while punishing those who could be deterred more leniently.398 Thus, the whole basis of the criminal system was placed under scrutiny, general deterrence often being an important topic.399 A critical notion was that the direct deterrent effect of legal sanctions was modest, and the indirect effect through informal control mechanisms was much stronger. Therefore “the imposition of severe sanctions is a visible sign of action in response to failure in the system of social control.”400 Critical studies revealed that severe sanctions did not have decisive effects in preventing crime, social factors being more important in crime control. Thus, the alternative scholars could argue against harsh punishment and for a more flexible system of criminal sanctions. Studies on the deterrent effects of sanctions were frequent since they illuminated the functioning of the system. There were studies on the deterrent effects of the severity of sanctions in general401 and in particular on such as parking violations402 and tax laws.403 Whereas the conservative view maintained the faith in the deterrent effect of capital punishment,404 the alternative view denied its practicability, morality, and efficacy and argued for abolishing it.405 The question was not simply about general deterrence, but rather its conformity to social policies and its relation to other forms of social

397 Schwartz & Skolnick 1962, supra n. 386 at 133–134, 136–137, 139–142. 398 William J. Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wisconsin Law Review 703, 712–716; Marc Ancel, Some Thoughts on the Problem of Deterrence, 378, in Marvin E. Wolfgang (ed.), Crime and Culture: Essays in the Honor of Thorsten Sellin (New York: John Wiley & Sons 1968), 375–385. 399 One of the most prominent spokesmen of the time for the cause was the Norwegian Johs Andenæs, whose writings were also influential at the time in the United States. (See Johs. Andenæs, The General Preventive Effects of Punishment, 114 University of Pennsylvania Law Review 949–983 (1966), and see, e.g., Chambliss 1967, supra n. 398 at. n. 1.) As will be seen in the following chapters, Scandinavian criminal law scholars often endorsed general deterrence whereas their American colleagues were critical of it. This was mostly due to the differing conceptions of deterrence, since the main themes in the criticism of punishment were basically the same in the United States and Scandinavia when analyzed in detail. 400 Richard G. Salem & William J. Bowers, Severity of Formal Sanctions as a Deterrent to Deviant Be- havior, 5 Law & Society Review 21, 21–23, 26–28, 33–37, quotation at 37, footnote omitted. 401 Charles R. Tittle, Crime Rates and Legal Sanctions, 16 Social Problems 409–423 (1969). 402 William J. Chambliss, The Deterrent Influence of Punishment, 12 Crime and Delinquency 70–75 (1966). 403 Richard D. Schwartz & Sonya Orleans, On Legal Sanctions, 34 University of Chicago Law Review 274–300 (1967). 404 Ernest Van Den Haag, On Deterrence and the Death Penalty, 60 Journal of Criminal Law, Criminolo- gy and Police Science 141–147 (1969). 405 Hugo Adam Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal of Criminal Law, Criminology and Police Science 539–548 (1970).

110 control. A conservative view was more willing to uphold severe punishment given the faith of their effect on deterring people and decreasing crime, whereas the reformist view approached the problem from a different perspective and sought to find alternative ways because crime was a social problem in need of social responses. The general trend of alternative scholarship was to move away from a legal point of view and toward a more social approach to punishment. The criticism of the criminal justice system reflected the rising critical consciousness towards law and society. On some occasions, the faith in the modern criminal system was very low. A psychiatrist noted that law was not able to encourage social order or morals, and faith in criminal law in these respects was a “cynical disregard of the individual which has so frequently permitted the official institutions of the administration of criminal justice to become more immoral, more irresponsible, and more unjust than any single criminal would dare to be.”406 The lack of faith in the criminal system followed in part from the notion that the traditional system and scholarship were based on false assumptions. Al Katz, for instance, noted that the question of punishment ought not to be what the criminal sanction is for, but rather for whom the criminal sanction is. In this sense, “the existing structure of the criminal law is useless, and… only a structure consistent with a rehabilitative model makes any sense.”407 The felt crisis of law was evident, and the legal scholars who noted this began to develop theories for restructuring the system to fit the modern needs. Al Katz was one of the critical legal scholars who contemplated on the theories of completely remodeling the criminal law. To him, the traditional system of criminal justice was logically inconsistent and socially inefficient and lacked a legitimate basis for punishment. Therefore, criminal law was to be based on the concept of dangerousness, meaning a “direct threat to the person or property of others”, and the function of punishment was to eliminate potentially dangerous behavior in the future,408 the crucial point being that criminal law ought to promote social solidarity.409 The traditional system excited feelings of helplessness, rejection, solitude, and hostility, but to be socially appropriate and legitimate, the criminal system ought to excite feelings of solidarity and rehabilitate the wrong-doer back into society.410 Katz’s theory was a comprehensive, critical theory of law, including the aspects of fundamental, conceptual criticism and social reformism. He began with the notion that the traditional law was inconsistent and without a legitimate basis because it could not serve the functions it was supposed to, and then he fostered liberal social values by encouraging rehabilitation and social soli-

406 Bernard L. Diamond, Book Review [The Insanity Defense], 56 California Law Review 920, 922–923 (1968), quotation at 922. 407 Al Katz, Book Review [The Limits of the Criminal Sanction], 117 University of Pennsylvania Law Review 640, 640–641 (1969), quotation at 641. 408 Al Katz, Dangerousness: A Theoretical Reconstruction of the Criminal Law Part I, 19 Buffalo Law Review 1–33 (1969), quotation at 22. (See the definition of dangerousness in id. at 21–22.) 409 Al Katz, Dangerousness: A Theoretical Reconstruction of the Criminal Law Part II, 21 Buffalo Law Review 603, 611 (1972). 410 Katz 1972, supra n. 409 at 611–613, 619–625, 639–640; Katz 1969, supra n. 408 at 17–20; Katz 1969, supra n. 407 at 643–644.

111 darity as the main purposes of criminal law. The reconstruction of criminal law proceeded from conceptual criticism to social politics. By the end of the 1960s, criminal law theorists were also adapting to the critical thought, in which context the idea of total criticism appeared. John Griffiths also attacked the traditional criminal law scholarship. He did not simply criticize the law or scholarship in general, but also Hebert Packer in particular, a legal scholar who represented traditional scholarship.411 Griffiths argued that both law and traditional scholarship were constrained by the prevailing ideology. It did not matter whether the criminal process was “modeled” according to crime control or due process; it was always a battle between the state and the offender and it always promoted the ideology of modern society and degraded the defendant. Therefore, he argued, criminal process should be combined with the purpose of criminal law so that individual needs could be taken into account. The “fundamental change in criminal procedure must begin with the development of ideological self-consciousness and speculation about the possibilities of ideological change.”412 Griffiths sought to demonstrate that the connection between law and the prevailing social ideology limited the opportunities for change and distorted legal ideals; differences in process that appeared to be fundamental turned out to be minimal when perceived critically, since different models of process pursued the same ideological goals. The element of ideology was important for the critical legal scholars because they opined that traditional scholars could not go beyond the contemporary society, and thus merely maintained the existing circumstances. The pursuit of an alternative ideology was evident in Griffiths’ harsh criticism. The legal profession in general appreciated Packer’s scholarship and its realism,413 and his book “received the triennial Coif Award, the highest honor that can be bestowed on a work of legal scholarship, in 1970.”414 It was thus no futile scholarship which Grif- fiths attacked, although Packer himself wrote that his book was “somewhat old- fashioned.”415 Griffiths, nonetheless, argued that because of its logical inconsistency, lack of intelligence and sophistication, conceptual ambiguity, and unsystematic approach the book was “very, very bad indeed”.416 Furthermore, argued Griffiths, Packer did not even try to understand the problems of criminal law outside the traditional mode and proceeded in the lawyer’s fashion, “as if anthropology and sociology, political theo-

411 On Packer’s scholarship, see Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, Cali- fornia: Stanford University Press 1968). 412 John Griffiths, Ideology in Criminal Procedure, or, A Third “Model” of the Criminal Process, 79 Yale Law Journal 359–417 (1970), quotation at 417. 413 Kalman 2005, supra n. 204 at 251. 414 Memorial Resolution: Herbert L. Packer (1925–1972), http://histsoc.stanford.edu/pdfmem/PackerH.pdf, (last visited 26.6.2012). Packer died in 1972 at the age of 47. 415 Packer 1968, supra n. 411 at 5. The book nevertheless reflected the spirit of legal realism, since it drew “on law, on philosophy, on economics, and on some of the behavioral sciences, but it [did] not pretend to be a technical treatise about any of them.” (Id.) 416 John Griffiths, The Limits of Criminal Law Scholarship, 79 Yale Law Journal 1388, 1388 (1970). There are hardly any pages in the review in which criticism does not appear, but one could mention id. at 1394–1397, 1406, 1414–1417, 1470–1473.

112 ry and psychology, even history and philosophy and theology, barely existed.”417 Alt- hough Griffiths has later expressed a dislike of being associated with the critical legal studies movement,418 his articles did represent critical thought. He criticized the ideological basis of law and legal scholarship, and criticized traditional scholarship for neglecting social realities and furthering only the lawyer’s perspective on the issue. Grif- fiths’ fierce critique was after a total overhaul of the criminal system and criminal scholarship. Moreover, the question was also both about the methods and the goals. Packer was a supporter of general deterrence and, although he did encourage decriminalization, his views on social and criminal policy were more conservative than those of Griffiths, who also endorsed rehabilitation as the basis of criminal sanction.419 Critical scholars considered traditional scholarship as conservative. Critical scholars, if they took a stand on values and policies, attempted to promote social reform and liberal politics. They saw that the formalist conceptualism of traditional scholarship prevented any review of the problems in modern society and in their individual circumstances. In any event, scholars of criminal law reflected the critical spirit in many ways. Both Katz and Griffiths criticized traditional law and their scholarship constructed fundamentally new approaches. They argued that the contemporary system was fundamentally flawed, unjust, and inefficient and wanted to elaborate a system of criminal law that would promote liberal values. Whereas Katz wrote about criminal punishment, Griffiths wrote about the process, and whereas Katz began from the inconsistency of law, Griffiths began from law’s ideological connections. In the end, they focused on the basis of the system, which was a general concern of critical scholarship. The focus on the basis of the criminal system became evident in Marxist criminology. Marxist theory was revived in criminal studies in the late 1960s and early 1970s.420 In his study on the legal repression of the ghetto revolts of the 1960s, Isaac Balbus developed a critical theory of criminal repression. According to him, the dilemma of liberal law was the conflict between repression and legalism; the state had to frustrate as much violence as possible but at the same time minimize the revolutionary potential of the violent behavior. Therefore, the criminal system depoliticized and delegitimized collective violence and made riots appear as a set of individual crimes. This then influenced the awareness of the public and the rioters.421 The impact of Marxist theory in criminal law directed attention towards the notion that law was a major contributor to the preservation of ideology, not simply a reflection of it. In the critical sense, repres-

417 Id. at 1391. (Footnote omitted.) 418 Kalman 2005, supra n. 204 at 250–251. Griffiths was one of the six young Yale faculty members not receiving tenure in the early 1970s, and his harsh criticism of Packer probably influenced the decision on his account. (Id. at 253–254.) This is not meant to imply that Griffiths was a proto-CLS scholar, but his critical approach nevertheless recalled the critical thought of the 1970s. Thus, he was a critical legal scholar of the 1970s even if he should not be identified with CLS. 419 Griffiths 1970, supra n. 416 at 1417–1432, 1466–1470; Packer 1968, supra n. 411 at 35–102, 296–363. 420 Ian Taylor, Paul Walton, Jock Young, The New Criminology: For a Social Theory of Deviance (Lon- don: Routledge & Kegan Paul 1973), 221. 421 Balbus 1973, supra n. 275 at 2–4, 12–15.

113 sion had to seem legitimate, and the legal system was a mediator between law and society. The Marxist turn was apparent in criminology and the social theory of crime. Crit- ical theory held that criminal law protected certain interests and repressed others, and this conflict was a pervasive factor in the administration of criminal justice.422 Crime was a social construct reflecting the power relations,423 and the task of scholarship was to analyze the functions of law in this regard.424 Critical scholarship gained more significance at the turn of the decade,425 and critical criminology and theory of crime were major contributors to critical thought in the early 1970s. Criminal law scholarship had long analyzed discretion and discrimination in law, but there was not much systematic critical theory of criminal law. Criminologists then accepted the challenge. Politics was at the center of the critical theory in viewing crime as a social construct and as an expression of conflicts. For the critical scholars, law-making represented “the translation of specific group interests into public policy”, and the administration of justice was “by its very nature political.”426 Consciousness upheld the myths that law represented the values of the society and was neutral,427 but the critical theories challenged the notion of objective reality and thus sought to force people to “consider libertarian ideals.”428 At the turn toward a more radical theory of crime, scholars began to concentrate more on the way crime was constructed. Since both the contemporary form of society and the conception of crime were created in the course of history, the critics endorsed an analysis of the fundamental dynamics of the concept of crime in society. The turn of the decade extended the basis of critical scholarship on crime. Many of the characteristics of the changes reflected the turn in critical thought towards a more comprehensive one. Radical Marxism entered criminology in the 1970s.429 Critical theorists saw that the need for a radical theory was great because the control over crime was tighter and social thought had become more conservative.430 The purpose of radical criminology was “one of demystification, the removal of the myths ─ the false con-

422 Quinney 1969, supra n. 382 at 1–4, 8–9, 25–30. 423 Richard Quinney, The Social Reality of Crime (Boston: Little, Brown and Company 1970), 15–25. 424 See, Chambliss (ed.) 1969, supra n. 326 at 5–11, 84–98, 360–378. 425 Chambliss (ed.) 1969, supra n. 326; Quinney (ed.) 1969, supra n. 382; Quinney 1970, supra n. 423; William J. Chambliss & Robert B. Seidman, Law, Order, and Power (Reading, Massachusetts: Addison- Wesley Publishing Company 1971). The first two are collections of articles representing the field. The last two are general introductions to the theory. Although from a different theoretical perspective, both books pointed out that society consisted of conflicting interests, law often promoted the interests of those in power and was thus not value-free, justice was discretionary, and, furthermore, the administration of justice was biased toward the values of the powerful classes. 426 Quinney 1970, supra n. 423 at 43, 138. 427 Chambliss & Seidman 1971, supra n. 425 at 502. 428 Quinney 1970, supra n. 423 at v. 429 Greenberg 1986, supra n. 391 at 167–171. 430 Harvey A. Silverglate, The 1970s: A Decade of Repression? 127–128, 136–146, in Richard Quinney (ed.), Criminal Justice in America: A Critical Understanding (Boston: Little, Brown and Company 1974), 127–146.

114 sciousness ─ created by the official reality.”431 The conflict approach perceived crime as a result of conflicting social interests and law as the mediating factor432 but radical criminology saw law as a tool of oppression which contributed to the preservation of the dominant ideology.433 Critical theorists argued that modern consciousness rejected thoroughgoing reforms as utopian,434 and the “lack of a historical and dialectical perspective” had weakened the critical potential of the scholarship.435 Marxist theory was needed to “break out of the ideology and conditions of the age.”436 By the mid-1970s, critical criminology had an established position.437 Neo-Marxism had become an accepted albeit marginal methodology in academia, and alternative scholars were applying various theories in radical criticism of the society. The radical turn in the theory of crime followed the general trends in critical thought. The purpose of the critical criminal theory was to analyze the consciousness of modern society and to point out the factors that created and maintained false consciousness, and that the law oppressed the poor and the minorities and criminal law supported these ends. As society was turning in a more conservative direction, critical scholars became still more radical. The 1960s had laid the foundation for radical scholarship and the 1970s was a time for it to enter the academic field. This turn occurred in various disciplines, reflecting the frustration of the radical intellectuals with the politics and the university, both of which had failed to realize the dreams of a better future that had arisen during the turbulence of the 1960s. In addition, critical scholars noted the fact that the attack on the prevailing paradigm required more weighty means than had been used earlier. Now the field was ready for such an attack and there were ambitious scholars taking the task on. Research also participated in the resolution of contemporary problems. For instance, studies pointed out that crime reflected relative poverty, which meant that fundamental social changes were needed to combat crime.438 Furthermore, it was argued that criminal concepts should be replaced with human-rights oriented concepts, and vio-

431 Richard Quinney, A Critical Theory of Criminal Law, 16, in Quinney (ed.) 1974, supra n. 430 at 1–25. See also Anthony Platt, The Triumph of Benevolence: The Origins of the Juvenile Justice System in the United States, 362, in Quinney (ed.) 1974, supra n. 430 at 356–389. 432 William J. Chambliss, Functional and Conflict Theories of Crime: The Heritage of Emile Durkheim and Karl Marx, 7, in William J. Chambliss and Milton Mankoff (eds.), Whose Law? What Order? A Con- flict Approach to Criminology (New York: John Wiley & Sons 1976), 1–28. 433 Alan Wolfe, Political Repression and the Liberal Democratic State, 50–53, in Quinney (ed.) 1974, supra n. 430 at 49–61; Richard Quinney, Crime Control in Capitalist Society: A Critical Philosophy of Legal Order, 192–193, in Ian Taylor, Paul Walton, Jock Young, Critical Criminology (London: Routledge & Kegan Paul 1975), 181–202. 434 Platt 1974, supra n. 431 at 359. 435 Anthony Platt, Prospects for a Radical Criminology in the USA, 98, in Taylor; Walton; Young (eds.) 1975, supra n. 433 at 95–112. 436 Quinney 1975, supra n. 433 at 192. 437 See Quinney (ed.) 1974, supra n. 430; Chambliss and Mankoff (eds.) 1976, supra n. 432; Taylor; Wal- ton; Young (eds.) 1975, supra n. 433. The last-mentioned gathered American and British critical criminology within the same covers. See also Taylor; Walton; Young 1973, supra n. 420, which is a general introduction to alternative criminology. 438 C. Ronald Chester, Perceived Relative Deprivation as a Cause of Property Crime, 22 Crime & Delin- quency 17, 23–24, 30 (1976).

115 lations of economic, sexual, and racial equality should also be considered as crimes.439 Poverty was a pressing problem despite the efforts of the government. Critical studies thus sought to point out the need to reform the structures of society in the fight against crime. Another concern was the crimes that occurred behind the official stage, namely, crimes against equality. Scholars attempted to point out the arbitrariness of the concept of crime that focused simply on the traditional crimes but ignored the modern crimes against equality. As the struggle against inequality intensified in the 1970s, scholars also began to stress equality in their theories. Criminal law provides an interesting perspective on the development of critical thought in legal scholarship. Critical scholarship on criminal law began to flourish in the 1960s. Studies on the reality of crime and the administration of criminal justice focused on law in action and sought to point out that the reality of criminal law was not the ideal of neutrality, equality, rationality, and efficiency. The aim of these studies was to reveal that the social inequalities were reflected in law which then contributed to the preservation of the problems. As in all critical scholarship, studies on criminal law sought to demonstrate how law reflected social structures and ideology, and the critical scholars argued that law was not an efficient way to change society without fundamental reform. Although radical criticism was mostly by criminologists, the scholarship of Katz and Griffiths shows that criminal law scholars also shared the critical consciousness. They focused on the illogical and irrational aspects of criminal law and elaborated theories to transform the system of criminal justice to meet the needs of modern society. The radical criminology following the Marxist turn of the 1970s reflected the more nihilist and destructive nature of the radical criticism of the 1970s, whereas earlier critical studies and theories on crime, including those of Griffiths and Katz, had been more constructive. Criticism of criminal policy and criminal law scholarship followed the same pattern as the development of critical legal thought in general. Early forms of alternative scholarship focused on the gap between law in books and law in action and studied law in context in order to point out the arbitrary and discriminatory nature of criminal law. Critical theories of the early 1970s tried to restructure both the law and the scholarship, and the radical criticism focused on the fundamental basis of society. The basic premises of critical thought were present in criminal law even if it was not at the heart of critical legal scholarship.440 Nevertheless, by the mid-1970s, critical legal scholarship had developed to the point where it was about to become a considerable part of the academic legal profession.

439 Herman Schwendinger and Julia Schwendinger, Defenders of Order or Guardians of Human Rights? 132–138, in Taylor; Walton; Young (eds.) 1975, supra n. 433 at 113–146; Platt 1975, supra n. 435 at 103. 440 The question of whether legal scholars were interested in criminal law depends on the definitions. Scholars who later became associated with CLS did not develop much critical criminal law theory. How- ever, as we saw, problems of crime and criminal law were of interest to many scholars advocating alternative methods and theories, and the radical criminology of the 1970s was indeed a critical theory.

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3.2 The creation of CLS, 1977–1980

3.2.1 The evolution of critical thought: The Conference on Critical Legal Studies, 1977

Critical legal scholarship developed in turbulent times. Sociological studies on law had continued since the realist period on a small scale and intensified in the 1960s. At the same time, social and political turmoil and the student protests also increased. People studying law in the late sixties grew up in an atmosphere in which a large part of the student population was raging and realist scholarship was increasing, but the dominant jurisprudence remained relatively traditional. Social inequalities persisted and even escalated, and the war in Vietnam ravaged the world and expressed the imperialist nature of the nation. In addition, the scholarly tradition was expanding and covering new areas of research as well as new methodologies. Critical legal scholarship was about to bloom by the mid-1970s. The 1960s laid the ideological foundation of CLS, and its theoretical basis was elaborated in the 1970s. The experiences of the 1960s had considerable effects on the young and even older jurists and law students, who eventually began to seek a career outside the traditional path. As David Kairys, a civil rights lawyer of the 1970s, wrote in 1978 in explaining his motives for becoming a critical lawyer and a scholar: “[t]he ability of our leaders and the society as a whole to justify or accept extreme poverty in the midst of extreme affluence, racism and the slaughter and terror we visited on the peoples of Indochina led me to seek an explanation and understanding of our society that goes beyond established thinking, which could explain neither what our society was doing nor why it was so difficult to change.”441 Reasons may vary depending on the scholar in question, but ultimately it was the complete disappointment in the established order and the law that drove scholars to seek alternatives. The dominant consciousness was seen as a legitimizing ideology for the status quo, and this notion forced these scholars to go beyond the traditional concepts. In a sense, critical legal studies consisted of scholars who shared the radical views of the 1960s because during that decade they realized or were convinced that there was something very wrong with the society and the law had something to do with it. The 1970s was a complicated decade for academia. In general, it marked a step in a more conservative direction. Student radicalism and the New Left waned, law and economics became a powerful paradigm, and the conservative student bloc became stronger.442 In 1978, Harvard Journal of Law and Public Policy was founded “to provide a forum for alternatives to the liberal establishment law review perspectives.”443

441 David Kairys, Book Review [Law and the Rise of Capitalism], 126 University of Pennsylvania Law Review 930, n. 38 (1978). See http://www.law.temple.edu/Pages/Faculty/N_Faculty_Kairys_Main.aspx (last visited 27.5.2013) for a profile of Kairys. 442 Kalman 1996, supra n. 260 at 77–84. 443 E. Spencer Abraham & Steven J. Eberhard, Preface, 1 Harvard Journal of Law and Public Policy vii, vii (1978).

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On the other hand, Marxist theory was revised,444 and emerged as a theory in various academic disciplines.445 Critical legal studies (CLS) grew out of the conflict between the fading radicalism of the 1960s and the conservative counter-criticism of the 1970s. In many respects, it was a synthesis of the critical and radical thought of the 1960s combined with the revision of Marxism and the antagonist spirit of the 1970s. CLS has often been linked to the radicalism of the 1960s,446 although Mark Tush- net has emphasized the importance of the 1950s.447 Both of these matter because scholars built their identity in different times and for different reasons. In general, however, the 1960s was the formative period because it was then that the critical scholars entered the legal profession from which they later felt alienated. During the decade, the would- be critical scholars matured into early adulthood and adopted their critical attitude toward society, law, academia, and scholarship. Critical scholars built their scholarly identity during the turbulence of the 1960s, and they built their professional identity during the more conservative 1970s and within the academic controversies. In the wake of the radical 1960s, there were many scholars yearning for a critical legal scholarship but the academic world had become a difficult place for alternative traditions. Law and society was an alternative establishment, but many critical scholars were displeased with it because of its ties with the tradition.448 In the early 1970s, then, radical scholars sometimes had difficulty in finding a position in the university.449 Criti- cal legal thought thus grew in an atmosphere where it was difficult to find a place. But it grew nonetheless, and “[b]y 1977, there existed in the American law schools a small but significant group of tenured professors who identified with the political left but who did not align themselves with the law and society tradition.”450 Various factors had contributed to the evolution of critical legal scholarship, but in the late 1970s it had reached the point where it felt alienated from many of its influences but where there was also a significant amount literature that could meet the needs of the critical scholar. Critical legal scholarship had expanded, but it was still fragmented and incoherent and without a forum of intellectual exchange. Thus, a need arose to bring the scholars with critical inclinations together to discuss critical scholarship. The first conference on critical legal studies was held at the University of Wisconsin law school in May, 1977, gathering young critical legal scholars, law and society scholars, and legal scholars with realist or leftist perspectives. The organizing committee of the conference consisted of Richard Abel (b. 1941), Thomas Heller (b. 1944), Morton Horwitz (b. 1938), Duncan Kennedy (b. 1941), Stewart Macaulay (b. 1931), Rand Rosenblatt (b. 1945), David

444 See, e.g., Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge: Cambridge University Press 1968). 445 In general, see Ollman & Vernoff (eds.) 1982, supra n. 40. 446 Binder 1987, supra n. 207 at 13–25. 447 Tushnet 1991, supra n. 258 at 1534–1535. 448 White 1987, supra n. 143 at 832–835. 449 Tushnet 1991, supra n. 258 at 1530–1534. 450 Duxbury 1995, supra n. 42 at 446.

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Trubek (b. 1935), Mark Tushnet (b. 1945), and Roberto Unger (b. 1947).451 Obviously, most of them were active in alternative and critical legal scholarship during the years before the conference. Abel and Trubek participated in law and development and later in law and society scholarship, Macaulay was a law and society scholar, Kennedy and Unger were well-known critics of legal reasoning, Horwitz was known for his critical legal history, as was Tushnet, who had also written about constitutional law. Although CLS was a combination of scholars with diversified backgrounds, they all shared sympathy for the radical left,452 and most of the participants at the conference were in some kind of connection with each other.453 From the beginning, CLS was a gathering of scholars sharing a similar world view, albeit differing on methods and theories. As Mark Tushnet writes, more than a movement, critical legal studies was “a political location for a group of people on the Left who share[d] the project of supporting and extending the domain in the Left in the legal academy.”454 At first it was probably more a gathering of scholars discussing similar intellectual interests, but it later evolved more into a political location. The radical element of CLS was evident in the diversity of the conference. The people of the older law and society branch especially were not radicals like the younger critical scholars, which came to mark the split between the alternative and the critical legal scholarship. The conference had a sociological approach focusing on the gap between law in books and law in action, an ideological approach focusing on the indeterminacy and inconsistency of law, and a Marxist approach. Many of the critical scholars disliked empirical social science, however.455 The conference continued many of the preceding forms of critical scholarship but also departed from them.456 At the foundation of the conference, critical legal scholarship was moving in a more radical direction, abandoning empiricism and endorsing an analysis of ideology and consciousness. This move was apparent in the critical legal literature of the early 1970s and was strengthened as the decade approached its end. The evolution of CLS was closely connected to the radicalism and critical theories of the 1960s that were reflected in the rise of the Marxist academia in the 1970s. As CLS scholars have noted, “[t]he work of the Critical Legal studies Conference is closely allied with the neo-Marxist social theory that has gained increasing influence in the

451 The letter of invitation to the conference on critical legal studies, reprinted in Lizard, Vol. 1 page 7, available at http://thecritui.com/wp-content/uploads/2011/02/lizard1.pdf (last visited 26.6.2012). See also Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Massachusetts: Harvard University Press 1987), 1, n. 1; Schlegel 1984, supra n. 314 at 392–396; Duxbury 1995, supra n. 42 at 447–450. Biograph- ical data on the scholars of the organizing committee is provided in Schlegel 1984, id. at n. 3, n. 4, n. 15– 21. 452 Kennedy in Hackney 2012, supra n. 65 at 29. 453 Schlegel 1984, supra n. 314 at 392–396. 454 Tushnet 1991, supra n. 258 at 1516. 455 Schlegel 1984, supra n. 314 at 396–399, 408. 456 David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stanford Law Re- view 575, 615 (1984).

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United States and Western Europe since the rise of the New Left in the 1960’s.”457 By 1977, American critical legal scholarship had reached the stage where it had enough proponents and substance to assemble a conference on the themes and theories of critical scholarship, and it was at this point that the so-called Critical Legal Studies Move- ment came of age. At the first conference scholars could gather and talk about the agenda for changing legal scholarship and academia, and the core of CLS scholarship was about to crystallize. The development of the critical legal scholarship culminated in the foundation of the conference. CLS arose out of the legal debates of the 1960s, during a time of political and social turbulence. Many law students were dissatisfied with an education that seemed to give an unrealistic picture of law, and even if education was reformed, the mainstream curriculum remained more or less traditional without a critical approach. Dissatisfied with legal education, critical students and scholars of the 1960s developed later theories which questioned the rational basis of modern social order and law. These scholars sought to point out that since the dominant consciousness prevented people and the legal profession from understanding the true nature of law, it was the traditional legal consciousness that was to be attacked. CLS scholars developed theories pointing out the irrationality of modern law, and in doing so were more constructive than is often assumed. The conference of 1977 was only the beginning of the movement, and in the following sections we shall take a look at CLS in the last years of the 1970s.

3.2.2 Critical legal scholarship coming of age: CLS in the late 1970s

Critical legal scholarship had evolved during the 1970s from sociological and realist jurisprudence into more philosophical critical theories of law. The first conference on critical legal studies marked the beginning of the movement but did not mean much to the scholarship; it turned from fragmentary literature into an organized conference but there was no unified school or anything that could be called the theory of CLS. Never- theless, critical scholarship was distancing itself from its realist predecessors and focusing more on the deep structures of law and on legal consciousness and ideology. In the late 1970s, critical legal literature began to blossom and various theories were elaborated. In general, critical legal scholarship was moving toward criticism of the deep structures of law. Belonging to the empirical wing of CLS, David Trubek had been a participant in the law and development project and had contributed to the social theory of law. Thus, his “Critical Social Thought about Law” represented a synthesis of critical theory, neo-Marxism, and empirical approaches to law. Beginning from the premises that law mediated social conflicts and formal rationality covered the contradictions within law, Trubek concluded that legal scholars had to study legal ideals and the gap

457 Peter Gabel and Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. Review of Law and Social Change 369, 371 (1982).

120 between them and reality as well as the social structures that caused the gap.458 Trubek had based his theory partly on the criticism of a study by Isaac Balbus, who then criticized Trubek for the fact that his theory accepted the values of capitalism as standards of criticism and therefore conformed to the prevailing ideology.459 With a background in the more traditional forms of alternative scholarship, Trubek represented the more empirical branch, whereas Balbus as a neo-Marxist scholar stressed the ideological functions of law. According to the latter view, the simple criticism of the way law functioned was insufficient because the ultimate point of criticism was the motives behind it. The general trend among alternative legal scholars and lawyers of the 1970s was to seek alternatives for the legal system. For instance, the public interest law movement continued its efforts to provide legal aid for the general public,460 and, in addition, there was an increased interest in alternative dispute resolution461 and access to justice462 which all sought improvements to the legal system outside the traditional methods. Since scholars had become more skeptical toward the idea that law could bring social change, alternative solutions to legal problems came under scrutiny, as well as the social structures and the causes of those problems,463 while the attitude toward the simple instrumental conception of law became more skeptical.464 Trubek argued that critical legal scholarship had to be “critical without being cynical, empirical but not positivistic, normative but not subjective, detached yet not disinterested.”465 However, critical legal scholarship was often pessimistic about empiricism and interest was then directed toward the legal structures and ideologies. The philosophical and theoretical basis of CLS developed and expanded at the end of the decade as scholars elaborated new theories and developed older theories further. Various philosophical analyses became useful in examining law beneath the surface. They also meant a break in the previous realist tradition. In a phenomenological analysis of law, Peter Gabel wrote that the realist focus on what judges did in fact mis- took “the behavior for the meaning within which the behavior [was] lived.”466 The basis of his theory was, then, the interpretive structures within which the behavior of judges

458 David M. Trubek, Complexity and Contradiction in Legal Order: Balbus and the Challenge of Critical Social Thought about Law, 11 Law & Society Review 529, 541–555, 566–567 (1977). 459 Isaac D. Balbus, Commodity Form and Legal Form: An Essay on the “Relative Autonomy of the Law”, 11 Law & Society Review 571, 581–582 (1977). 460 Rabin 1976, supra n. 188. 461 John C. Cratsley, Community Courts: Offering Alternative Dispute Resolution within the Judicial System, 3 Vermont Law Review 1–69 (1978). 462 Mauro Cappelletti and Bryant Garth, Access to Justice: The Newest Wave in the Worldwide Move- ment to Make Rights Effective, 27 Buffalo Law Review 181–292 (1978). 463 Marc Galanter, Delivering Legality: Some Proposals for the Direction of Research, 11 Law & Society Review 225, 228–229, 241–245 (1976). 464 John Griffiths, Is Law Important? 54 New York University Law Review 339–374 (1979). Experiences with law and development were important in that some scholars realized that law could not bring social development. (Id. at 350, and see Trubek 1972, supra n. 136; Trubek and Galanter 1974, supra n. 138; Galanter 1974, supra n. 285.) 465 Trubek 1977, supra n. 458 at 529. 466 Peter Gabel, Intention and Structure in Contractual Conditions: Outline of a Method for Critical Legal Theory, 61 Minnesota Law Review 601, 602 (1977).

121 was conducted and perceived. Since law was manifested in these structures, which were reified to suit the needs of traditional legal discourse, a philosophical analysis helped to understand and analyze the behavior within them.467 The emphasis on continental philosophy introduced new elements into American critical legal scholarship. By applying the philosophy of Sartre and Heidegger, Gabel defined an existentialist- phenomenological context within which legal discourse and practice took place, and which pointed out the limits of interpretation and the process of reification and alienation. Critical scholars did not regard law simply as arbitrary behavior, but rather as a manifestation of social-legal phenomena within certain structures, and it was not simply the behavior that was to be analyzed but the preconditions of that behavior. Paradoxes and contradictions in legal thought remained an interesting topic for critical scholars. Karl Klare demonstrated how the necessity to conform to legalism turned legal reasoning into a formalism that excluded the possibility of radical reform. Modern legal consciousness was thus a kind of “social conceptualism” which noted the social circumstances but preserved the formalist conceptualism that maintained the distinction between law and politics. This “characteristic of modern legal consciousness”, Klare argued, preserved and obscured “the contradictions of legal thought, which reflect[ed] the contradictions of social life in late capitalist society.”468 The point was to show that realist reforms were more apparent than real and that the necessities of the capitalist economy still had great significance in legal reasoning. In the late 1970s, as left ideology was fading, scholars felt the need to show that liberal ideology had produced a false consciousness that stimulated faith in law. They thought that modern legal thought was aware of the impact of social factors on legal reasoning, but nonetheless maintained the ideals of legal rationality and neutrality and thus contributed to the preservation of the ideology of the ruling class. The focus on structures brought up the complicated relationship between CLS and Marxism. CLS scholarship was closely related to neo-Marxism, but the scholars did not often regard orthodox Marxism as useful in legal analysis469 although there were also more hospitable approaches.470 Nonetheless, despite ambiguities in interpretation,471 a

467 Id. at 624–642. 468 Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Con- sciousness, 1937–1941, 62 Minnesota Law Review 265, 280, 291–292, 306–310, 329–336 (1978), quotation at 336. 469 See, e.g., Balbus 1977, supra n. 459 at 571–572; Gabel 1977, supra n. 466 at 614–616; Klare 1978, supra n. 468 at 269, n. 13; Trubek 1977, supra n. 458 at 555–561. 470 Kairys 1978, supra n, 441 at 940. Kairys, however, noted that even if law reflected social class conflict and was biased toward bourgeois ideology, it did not favor the capitalist interests on every occasion. (Id. at 946, n. 55.) 471 Critical legal scholars have used arguments similar to those of Marxism but they have been very ambiguous about their theoretical basis on the issue. (Richard W. Bauman, The Communitarian Vision of Critical Legal Studies, 33 McGill Law Journal 295, 311–312, n. 43 (1988).) For the problematic relationship between CLS and Marxism, see, e.g., Jennifer C. Jaff, Radical Pluralism: A Proposed Theoretical Framework for the Conference on Critical Legal Studies, 72 Georgetown Law Journal 1143, 1145–1147 (1984); Alan Hunt, The Theory of Critical Legal Studies, 6 Oxford Journal of Legal Studies 1, 8–13 (1986).

122 revision of Marxism that had occurred in other social sciences since the late 1960s was part of the development of CLS. Critical scholars had to explain the relationship between the basis and the superstructure without however being deterministic, and they had to analyze the relative autonomy of law and give it meaningful substance.472 The studies of the legal structures and consciousness reflected the neo-Marxist pursuit to avoid economic determinism and any other kind of simple explanation of legal phenomena. Recent years had witnessed several efforts to help the underprivileged, which itself spoke against the simple concept of law as a ruling-class tool of oppression. Critical theory thus faced the problem of explaining the relationship between law and society. The relative autonomy of law was a concept with which one could avoid determinism and reductionism. According to Tushnet, a theory of the relative autonomy of law had to explain the relationship between social conflicts and the contradictions in the economy and law on the one hand, and the relationship between these contradictions and the instrumentalist and structuralist view of law on the other.473 Since law was a part of the incomplete hegemony of capitalism, analysis on the ideological functions of law could explain the contradictions.474 Klare emphasized that ideological functions of law also alienated people from their real-life circumstances. Through law, people balanced the conflicts between social interests and hence created and defined the society, but the form of modern law prevented them from realizing this.475 For instance, since labor law legitimated the un-freedom of the work place, “the struggle to emancipate labor must also be a struggle to emancipate law itself.”476 A serious problem for the critical scholars was the question of whether law legitimated unequal and unjust circumstances, and their goal was to demystify law to realize the potential of reform. Since the critical scholars wanted to distance themselves from the Soviet Union, they did not use socialist rhetoric in criticizing the capitalist hegemony. Nevertheless, they argued that in capitalist society freedom and democracy were possible only to the extent that they suited capitalism, and thus they wanted to disclose the ties between ideology and law. Because of the drive to emancipate law from its structural chains, critical scholars attacked the liberal legal theory that appeared to defend the rights of the citizen. For the critical scholars, however, the liberal defense of rights was more apparent than real. In

472 See Mark Tushnet, A Marxist Analysis of American Law, 1 Marxist Perspectives 96–116 (1978); Karl Klare, Law-Making as Praxis, 40 Telos 123–135 (1979). According to Tushnet, the relatively late revision of Marxism in legal scholarship was due to the structures of legal education which did not encourage theoretical or critical learning, and also to the changed circumstances in the university, which encouraged more people to study law. (Tushnet 1978, id. at n. 1.) 473 Tushnet 1978, supra n. 472 at 102–104, 108–111. See also Balbus 1977, supra n. 459 at 572–573, 583–586; Trubek 1977, supra n. 458 at 557. For criticism of the concept of relative autonomy, see Grif- fiths 1979, supra n. 464 at 360–361, n. 49. 474 Mark Tushnet, Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 Texas Law Review 1307, 1346–1353 (1979). 475 Klare 1979, supra n. 472 at 132. 476 Klare 1978, supra n. 468 at 337–339.

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1977, Ronald Dworkin’s Taking Rights Seriously,477 a book that developed a non- positivist legal theory to protect rights, was published, but the liberal ethos of the book did not please the critical scholars. According to Gabel, Dworkin’s theory was “a justification of contemporary American legal practice expressed in abstract and universal terms.”478 The critics thought that the problem of the liberal scholars was that they neglected the analysis of values and policies in their efforts to provide a rational basis for legal theory. Values, however, derived from the preferences of the powerful classes and law often protected these preferences.479 Fact-value analysis was necessary because “[j]ustice, freedom and equality have no meaning outside of a particular system of social relations.”480 Liberal scholars, however, took the present as given and thus “they confuse a historically contingent social experience with human nature, reifying ‘man’ in their own alienated self-image and constructing imaginary ‘communities’ which are simply idealized representations of the alienated social relationships they have known in their own lives.”481 From the critical perspective, liberal theory was a justification and a mystification of the contemporary social and legal order and made the values of modern society seem inevitable and natural. Like the radical spirit of the 1960s, the theory was going beyond the observable reality and challenged the standards of modern society. Society and its institutions were not seen simply as the subjects of observation but rather as something that was constructed in history and society. The problem of values was of central importance to critical legal theory, and its basic premises held that facts and values were connected.482 Baker noted that modern rights theorists had not been able to develop a theory that could convincingly argue why some values ought to be preferred to others. Therefore, the inequalities in social structures were reflected in the inequalities in policy-making.483 Indeed, the critics continued, there were no absolute values, although that was often assumed by the traditional theory, values being socially constructed,484 and because there was no consensus on values in society, there could be no uniform theory of justice.485 The problem of values took the critical legal scholarship beyond the surface of legal problems. The critical notion was that legal reasoning did not pay attention to the fundamental problems, whether it was understood in formalistic or realistic terms. For the critical understanding, values

477 Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press 1977). 478 Peter Gabel, Book Review [Taking Rights Seriously], 91 Harvard Law Review 302, 302 (1977). 479 Kenneth Casebeer, Escape From Liberalism: Fact and Value in Karl Llewellyn, 1977 Duke Law Jour- nal 671, 684–702. 480 Kairys 1978, supra n. 441 at 941. 481 Gabel 1977, supra n. 478 at 315. 482 See Unger 1975, supra n. 301 at 67–81. 483 C. Edwin Baker, Counting Preferences in Collective Choice Situations, 25 UCLA Law Review 381, 383–393 (1978). Baker developed a theory that focused on liberty and equality and stated that the preferences ought to be determined in collective decision-making where everyone’s preference would count. (Id. at 393–412.) 484 C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA Law Review 964, 974– 976 (1978). 485 Tushnet 1979, supra n. 474 at 1307–1308, 1316–1321.

124 were always contingent and biased, but they were expressed in neutral terms. Further- more, values were always present in legal reasoning. Thus reflecting the ideology of the counter-cultures, the critical scholars sought to demonstrate that values could be anything, but the traditional legal consciousness took the contemporary system as given and neglected any possibility of real alternatives. The fundamental attack on the tradition of legal thought was evident in the criticism of values. This can be seen in Kenneth Casebeer’s analysis of judging. He argued that values were inherent in legal materials, as well as in perception and interpretation, and these values reflected certain social interests. Thus the dynamics of legal reasoning could not be understood correctly if values were neglected.486 This fundamental criticism distanced CLS from the other critical schools of jurisprudence. Duxbury writes that CLS “evolved as a reaction against the individualism and consensus-orientation” of the postwar American jurisprudence.487 As the debate on neutral principles demonstrates, CLS was rather a radicalization of the dissenting voices than a reaction against a complete consensus. Although there were competing schools, none of them questioned the basis of jurisprudence. CLS, however, emerged from a different kind of intellectual background, and as a result of a complex process, it ended up criticizing the very basis of law. In the search for the roots of the problems of law, CLS scholars sought to show that other alternative schools of jurisprudence shared the same fundamental problems as the tradition. Another major school, law and economics, was also criticized for its inability to provide a rational basis for legal analysis. Mark Kelman worked to demonstrate that law and economics was illogical and false in reality. He debunked the Coase Theo- rem,488 and argued that the law and economics premise that freedom of choice maxim- ized welfare was incorrect because people were not similar atomistic concepts but individual persons, and, moreover, several factors affected the choices in market situations. In addition, there was no universal concept of welfare.489 Further, C. Edwin Baker argued that law and economics was flawed in analyzing whether a law was “efficient.” This was so because law and economics took the existing distribution of wealth, desires, and values as given, and therefore simply legitimized the status quo, reified reality, protected the interests of the economy and big business, and excluded the possibility of alternatives.490 The elements of neo-Marxism and critical theory were evident in the critical pursuit to point out the way the traditional legal scholarship reified reality and protected the contemporary system. These aspects encouraged the critical scholars to analyze the origins and purposes of values and ideologies in the law.

486 Kenneth M. Casebeer, The Judging Glass, 33 University of Miami Law Review 59, 78–80, 101–103, 110–111, 118–123 (1978). 487 Duxbury 1995, supra n. 42 at 424. 488 Mark Kelman, Consumption Theory, Production Theory, and Ideology in the Coase Theorem, 52 Southern California Law Review 669, 673, 678–685, 697–698 (1979). 489 Mark Kelman, Choice and Utility, 1979 Wisconsin Law Review 769, 778–782. 490 C. Edwin Baker, Posner’s Privacy Mystery and the Failure of Economic Analysis of Law, 12 Georgia Law Review 475, 482–483, 489, 493–494 (1978).

125

A central argument was that values were construed and built into law in history, as became evident in critical legal history. Indeed, one of the most remarkable events in the critical legal scholarship of the late 1970s was the publication of Morton Horwitz’s book The Transformation of American Law, 1780─1860 in 1977.491 Horwitz had conducted critical studies on legal history throughout the 1970s, and the book was a culmination of his scholarship thus far, gathering the most important elements of some of the already published articles and providing new insights and data. The treatise was a thorough analysis of the historical development of American law during its constructive period in the antebellum years, its central arguments being that the development of the legal doctrine conformed to the economic interests of the time, courts were the motors driving change, and that there was a connection between the legal profession and the economic interests the law promoted.492 The book was typical critical legal studies literature. Through historical analysis, it sought to point out that the law was biased toward the economic elite and that the legal profession also conformed to these interests. Be- sides being a manifestation of the critical notions in actual cases, the significance of the book was also in the discussion that followed its publication.493 The response of the legal profession in general toward Horwitz’s book was critical. Indeed, reviewers noted that a “[c]ynical criticism, economic determinism, and academic nihilism have come of age in legal-history writing,”494 depicting a view of law as a ruthless battle for selfish interests in a “dark and Dostoyevskyan” world.495 Horwitz was criticized for ascribing legal changes simply to economic factors, creating thus a plot in which the legal profession together with the economic elite shaped the law to fit their interests.496 The critics of Horwitz argued that the development of law was more autonomous than instrumental,497 and that he had generalized and simplified issues beyond the scope of his research.498 As a neo-Marxist scholar even argued, he had “walked into a reductionist trap,”499 which had turned his interpretations into economic

491 Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Massachusetts: Harvard University Press 1977). 492 Id. esp. at 99–101, 210, 228, 253–266. 493 For more detailed accounts of the debate, see Wythe Holt, Morton Horwitz and the Transformation of American Legal History, 23 William and Mary Law Review 663–723 (1982); Kalman 2002, supra n. 341. Both writers, however, support Horwitz’s thesis, albeit not uncritically. In addition, I shall focus only on the debates that took place in the late 1970s, although they continued into the 1980s. 494 John Phillip Reid, A Plot too Doctrinaire, 55 Texas Law Review 1307, 1307 (1977). 495 Stephen B. Presser, Revisiting the Conservative Tradition: Towards a New American Legal History, 52 New York University Law Review 700, 700 (1977). 496 Reid 1977, supra n. 494 at 1311–1320. 497 R. Randall Bridwell, Theme v. Reality in American Legal History: A Commentary on Horwitz, The Transformation of American Law, 1780–1860, and on the Common Law in America, 53 Indiana Law Journal 449, 472, 496 (1978). 498 Presser 1977, supra n. 495 at 720–724; Maxwell Bloomfield, Book Review [Transformation of Ameri- can Law, 1780–1860], 30 Vanderbilt Law Review 1102, 1105 (1977); Willard Hurst, Book Review [Transformation of American Law, 1780–1860], 21 American Journal of Legal History 175, 178–179 (1977). 499 Eugene D. Genovese, Book Review [Transformation of American Law, 1780–1860], 91 Harvard Law Review 726, 730 (1978).

126 determinism500 or ideological history.501 With respect to history, the critics argued that Horwitz’s material did not support his conclusions,502 and that he had failed both on evidence and analysis at numerous points.503 The critical response towards Horwitz’s book describes the cliff between the traditional and the critical legal thought well. Most of Horwitz’s critics disagreed with his methods of emphasizing economic factors in legal development. Since legal history is an interpretative discipline, disagreement comes naturally, but it was the economic determinism that was so obvious in the book which particularly attracted the criticism of legal historians. Although most of the profession agreed that economics had influence on the development of law, they could not accept the argument that it was the most important or even the only factor. The criticism pointed out the vulnerability of the critical theory’s thesis of the economic biases of law, which was precisely why critical scholars were developing more nuanced theories at the same time. The criticism also concerned evaluations in legal history. In an otherwise relatively hospitable review, Grant Gilmore criticized Horwitz for presenting the transformation as a “bad” thing,504 and others also noted that it was highly questionable as to whose benefit the legal changes aided.505 Blackmar also emphasized that because of the significance of legal doctrine, the legal profession was not systematically biased toward any one interest.506 In order to highlight the impact of history on the present day, critical scholarship stressed social conflicts and their impact on legal change. By doing this, the critical scholars obviously sought to contextualize contemporary problems, but also to expand the basis of legal scholarship. The fiercest critique expressed the general attitude of the traditional profession toward critical legal scholarship. Teachout criticized the “new school” for misunderstanding and downgrading the role of the rule of law in history and in society by reducing law to an instrument of economic repression.507 John Reid considered Horwitz’s book

500 Reid 1977, supra n. 494 at 1313–1317; Tushnet 1978, supra n. 472 at 105. Tushnet also criticized Horwitz’s analysis even if he was also a critical scholar. The disagreement was over their differing views on Marxism. 501 Peter R. Teachout, Light in Ashes: The Problem of “Respect for the Rule of Law” in American Legal History, 53 New York University Law Review 241, n. 131 (1978). Teachout in fact reviews another book, but he also takes a stand on the Horwitz’s book in his lengthy review essay. 502 Stephen F. Williams, Book Review [Transformation of American Law, 1780–1860], 25 UCLA Law Review 1187, 1188–1200, 1208, 1214–1215 (1978). 503 Bridwell 1978, supra n. 497 at 450. 504 Grant Gilmore, From Tort to Contract: Industrialization and the Law, 86 Yale Law Journal 788, 794– 795 (1977). 505 Morris S. Arnold, Book Review [Transformation of American Law, 1780–1860], 126 University of Pennsylvania Law Review 241, 244–245; Charles B. Blackmar, Book Review [Transformation of Ameri- can Law, 1780–1860], 22 St. Louis University Law Journal 228, 230 (1978); Presser 1977, supra n. 495 at 719–721; Reid 1977, supra n. 494 at 1318–1320. 506 Blackmar 1978, supra n. 505 at 230–231. 507 Teachout 1978, supra n. 501 at 272–284. Teachout noted that critical legal studies, or the “new school” as he called it, was useful in criticizing the liberal assumptions and hence keeping the full potentiality of liberalism alive, but he criticized the pessimism of the school. (Id. at 277, n. 124.) He also noted that the new legal history relating to that of Horwitz was a widespread phenomenon, but the “dark pessimism” toward the rule of law was not shared by everyone applying those methods. (Id. at n. 3.)

127 as desacralizing, “conspiratorial materialism” without evidence. Therefore, he continued, the scholarly profession was to be aware of it, because “[a] generation of law students, many predisposed to arguments of Machiavellian intrigue explaining business success or rights of private property, are about to be subjected to a legal history that must be made to prove its case or be driven from the marketplace.”508 Traditional scholars did not like the cynicism and pessimism that critical scholars often represented. Since they thought that critical legal scholarship attacked fundamental legal premises without solid evidence for its arguments, they demanded rationality from it. Although not completely rebutted, Horwitz’s book raised lots of criticism and many scholars were eager to debunk his thesis.509 There was something about the book that horrified the legal profession because another book of Marxist legal history was also published in 1977, but which attracted much less attention. In Law and the Rise of Capitalism, Michael Tigar and Madeleine Levy argued that the development of law followed the development of capitalism. By going through the development of law from medieval times, the authors sought to point out that the modern legal ideology and the state were meant to protect the interests of the ruling class and to maintain the existing economic system.510 In a review, Judith Kofler, herself a critical scholar, was pleased with the idea of the book but disappointed in its execution because of the lack of historical evidence and the synthesis of the forces of legal change.511 It was not simply Marx- ist legal history but Horwitz’s book in particular that raised the criticism. Laura Kalman has argued that the critical reaction toward Horwitz’s book pointed out that the spirit of process jurisprudence was still strong and that the legal profession disliked the idea that law was structurally flawed.512 These arguments seem plausible. Horwitz indeed argued that law was not neutral but promoted certain interests at the expense of others, and that the biases of law followed from judicial decision-making and were structured into legal thinking. It was also a part of the critical legal studies which at this point did not get the attention the Transformation did. Neither diffuse theory nor abstract generalizations bothered legal scholars, but Horwitz’s book did because it was written in plain language and it concerned the American judiciary in the age of the building of American law. It was a critique of doctrine, analyzed in the light of its

508 Reid 1977, supra n. 494 at 1321. 509 Of the reviews dealt with here, Reid 1977, supra n. 494; Bridwell 1978, supra n. 497; Williams 1978, supra n. 501 were essentially critical. Arnold 1977, supra n. 505; Blackmar 1978, supra n. 505; Bloom- field 1977, supra n. 498; Genovese 1978, supra n. 499; Gilmore 1977, supra n. 504; Hurst 1977, supra n. 498; Presser 1977, supra n. 495; Teachout 1978, supra n. 501 were relatively “ordinary” book reviews with a more or less critical tone and thus disagreeing on certain interpretations, with the exception, of course, of Teachout’s criticism of the pessimism over the rule of law. 510 Michael E. Tigar & Madeleine R. Levy, Law and the Rise of Capitalism (New York: Monthly Review Press 1977), 287. 511 Judih S. Kofler, Book Review [Law and the Rise of Capitalism], 59 Boston University Law Review 423, 423–425, 430–432 (1979). For another review, see Kairys 1978, supra n. 441, which is a positive review but its purpose seems to be more to promote Kairy’s critique of legal ideology than to review the book. 512 Kalman 2002, supra n. 341 at 853, 855.

128 historical development. The book thus hit the weak spot of the legal profession in a way that could not have been ignored. The significance of the critical legal studies of the late 1970s was precisely that they pictured serious problems in everyday matters. Another significant event of the early CLS literature was the publication of Duncan Kennedy’s The Structure of Black- stone’s Commentaries.513 The article continued Kennedy’s theories on the indeterminacy of legal reasoning514 and on the collective consciousness that structured legal thought.515 The article was particularly important because it introduced the concept of fundamental contradiction, which meant that the freedom of the individual was at the same time both dependent and incompatible with the others, and this contradiction both constituted and distorted the relations between people. With respect to law, it was the “very essence of every problem.”516 For years, the critical scholars had worked to show the fundamental flaw in modern law, and Kennedy’s postulate was a powerful and con- cise articulation of this notion. Kennedy sought to demonstrate how modern legal and social consciousness both included the fundamental contradiction and denied it. He argued that in modern liberal thought, “civil society” was considered as “a realm of free interaction between private individuals who are unthreatening to one another because the other entity, ‘the state’, forces them to respect one another’s rights. In civil society, others are available for good fusion as private individual respecters of rights; through the state, they are available for fusion as participants in the collective experience of enforcing rights. A person who lives the liberal mode can effectively deny the fundamental contradiction.” Thus, according to Kennedy, legal thought subdued by the fundamental contradiction was apologetic because law was biased toward certain social interests, and this affected the way law mediated and denied the fundamental contradiction.517 Fundamental contradiction was at the heart of law and of legal scholarship, not only reflecting the inner contradictions and incompatibilities within society, law, and legal thought, but also involving every aspect of human consciousness and interaction. Ac- cording to Kennedy, the purpose of critical legal scholarship was to realize the contradiction and analyze its impacts on law and consciousness.518 Fundamental contradiction was a milestone in critical legal scholarship because it combined much critical potential into one concept. The concept covered the relative autonomy of law by pointing out the structural biases within it, and through it one was able to point out how the legal consciousness made the reality seem natural and just, but also justifying inequalities. In a

513 Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buffalo Law Review 205–382 (1979). 514 Kennedy 1973, supra n. 280; Kennedy 1976, supra n. 315. 515 Kennedy 2006, supra n. 296. 516 Kennedy 1979, supra n. 513 at 211–213, quotation at 213, emphasis original. This fundamental contradiction is the “most-often cited of all passages on critical legal studies” (Kelman 1987, supra n. 451 at 17). 517 Kennedy 1979, supra n. 513 at 217. However, law was not necessarily apologetic. It was apologetic only when it was biased toward particular interests. (Id. at 217–218.) 518 Id. at 219–221.

129 sense, these were not novel ideas in critical thought but it was not until this point that the idea was expounded in a lucid, albeit rough, concept. In addition to the concept of fundamental contradiction, Kennedy’s article had at least two dimensions. First, in his historical analysis, Kennedy sought to explicate how Blackstone’s Commentary legitimized the status quo and distorted the reality to appear rational, and how it still affected modern American legal thinking.519 The purpose was to point out that even if law and legal theory had changed greatly since the days of Blackstone, his defense of liberalism still had a major impact on the American legal consciousness. Second, Kennedy’s analysis contributed to the CLS critique of rights, since, according to him, the defining characteristic of liberalism was that rights mediated the fundamental contradiction. Rights made conflicts and the solutions to them seem rational.520 In the critical thought, rights were only a way to reify capitalist oppression and social inequalities, and an acceptance of rights would have turned one into a supporter of the prevailing order. The criticism of rights was thus fundamental criticism of law and society that did not accept the premises of the society at face value. It was a reminder of the radical critique of the 1960s at a time when the society in general was moving in a more conservative direction and an acceptance of the status quo through the emphasis on rights. The consensus on the superiority of modern American society was a major motive behind the urge to point out the impossibility of distinguishing between right and wrong. The problem of choosing between alternatives in law, which reflected the indeterminate and conflicting nature of law, was an important feature of critical legal thought. In an analysis of the contradictory relationship between the vagueness of law and the rule of law, Al Katz and Lee Teitelbaum argued that law regulated complicated situations with imprecise language. The vagueness of law and the conflict between formal and substantive justice on the one hand and the rule of law on the other caused antinomies in law which threatened the personal autonomy of people.521 Katz developed this notion further in his boundary theory, in which he argued that whenever there was a legal conflict, it was resolved either by balancing the contradictory alternatives or by choosing one of them. In either case, however, the solution was made without an objective method, and hence always represented moral absolutism and

519 Id. esp. at 236–237, 240–244, 247, 255–258, 261–264, 266, 268, 272–273, 288, 301, 303, 307, 311– 312, 334–335, 348–350, 353, 365–366, 372–373, 376, 380–382. For a criticism of Kennedy's historical interpretation of Blackstone, see John W. Cairns, Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State, 4 Oxford Journal of Legal Studies 318, 350–352 (1984). Cairns seems to argue that, first, there is not enough evidence for Kennedy’s conclusions, and second, Kennedy has not completely understood the historical context of Blackstone. In addition, Harold Berman has pointed out that on some occasions Blackstone did expose the conflicts in English law. (Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, Massachusetts: Harvard University Press 2003), n. 81 at 483). 520 Kennedy 1979, supra n. 513 at 265. See also id. at 259–260, 294–295, 297–298, 355–358. 521 Al Katz & Lee E. Teitelbaum, PINS Jurisdiction, the Vagueness Doctrine, and the Rule of Law, 53 Indiana Law Journal 1, 5–6, 11–17, 27–32 (1977).

130 the irrationality of decision-making, both of which the modern consciousness denied.522 The general presumptions behind both Kennedy’s and Katz’s recent theories were that “law is relative to social theory and social practice; that contemporary jurisprudence is an obfuscating apologetic” and, furthermore, “that the notion of legal autonomy is a lie.”523 In order to point out the indeterminacy of law and the impossibility and irrationality of modern values, critical scholarship was moving from structures to consciousness and from philosophy to psychology, but the basic conceptions were the same as they had been throughout the 1970s. By the end of the decade, however, CLS literature had grown to a considerable degree and its theories had become more diversified and sophisticated. Critical legal scholarship had come a long way from the utopian idealism of the early 1960s to the pessimism of the late 1970s. The question was not so much whether the courts ought to promote certain values and policies, but rather how these values and policies should or could be defined in the first place. The nihilism of the 1970s stressed the impossibility of determining the content of law and rights. As Arthur Leff argued, neither critical nor any other positivist legal theory had defined the basis of law, which was always arbitrary and open to discussion.524 Traditional legal scholarship, whether conservative or liberal, often sought to define a definite basis for rights, but the critical scholars denied the possibility of such a basis. Critical legal scholarship, as distinguished from the nihilism of Leff, however, sought to point out the ways legal structures and consciousness limited the freedom of choice. Nevertheless, critical scholars struggled against the general trend towards a rational basis for modern law. Despite the fact that the nucleus of CLS was theoretical criticism, critical scholars also focused on practical matters with a more constructive approach. Since legal scholars had accepted that their profession had been one factor in allowing the economy to rule society,525 they had to struggle against the traditional norms. The critical insights, however, forced them to seek the solutions outside the conventional boundaries of legal reform. In any event, fundamental reforms were needed; for instance, with respect to legal aid.526 Richard Abel, who had previously analyzed the structures of the legal sys-

522 Al Katz, Studies in Boundary Theory: Three Essays in Adjudication and Politics, 28 Buffalo Law Review 383–435 (1979). Katz’s boundary theory and Kennedy’s fundamental contradiction are very close to each other. In fact, Kennedy’s theory was influenced by the boundary theory. Kennedy wrote that his essay on the fundamental contradiction was “intended to be a ‘study in boundary theory’” in Katz’s sense. (Kennedy 1979, supra n. 513 at n. 5). On certain occasions, CLS scholars were influenced by each other’s writings. An irony is, however, that the fundamental contradiction is a well-known concept whereas boundary theory is far less familiar to legal scholars. Alan Hunt writes that Katz “has precisely the same theoretical structure as that advanced by Kennedy,” and therefore “I do not intend to examine it separately.” (Hunt 1986, supra n. 471 at n. 46.) 523 John Henry Schlegel, Introduction, 28 Buffalo Law Review 203, 203 (1979). These notions might have been written by Katz. (See Duxbury 1995, supra n, 42 at 467 n. 273.) 524 Arthur Allen Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke Law Journal 1229–1249. 525 David M. Trubek, Book Review [Balancing the Scales of Justice], 1977 Wisconsin Law Review 303, 304. 526 Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Scarcity and Fairness in Public Interest Practice, 58 Boston University Law Review 337–390 (1978).

131 tem, noted that redistribution of legal services was often inefficient and, in addition, sometimes contributed to the preservation of the myth that social justice could be ob- tained under capitalism. Reforms thus required fundamental analysis and consideration, since the problems of social inequalities were within the structures of society and law.527 William Simon, on the other hand, criticized the ideology of advocacy which, he argued, alienated the parties from the process, furthered social inequality, and helped to maintain the status quo. He concluded that advocacy should pay attention to ethics and the individuality of others so that dispute-resolution would be closer to the people and promote social equality and justice.528 As the general trend in alternative legal scholarship and the profession was toward an alternative dispute resolution, critical scholars also emphasized research into and reform of social and legal structures, because the legal system, even in its most liberal sense, was seen to be constrained by the dominant ideology and thus excluded profound changes. In these cases, however, critical legal scholarship was often constructive and provided alternatives for the legal system even though its premises were based on radical criticism. A major concern of the critical scholars was legal education, which was still haunted by the same problems that had haunted it for the whole century.529 Despite the reforms of the 1960s, case books dominated the curriculum,530 legal education lacked a thorough analysis of the relationship between law and society and therefore conformed to the dominant ideology,531 and it focused mostly on abstract skills which promoted social inequalities.532 To make good lawyers, the critics argued, students should be prepared with theoretical training and with a “wide range of historical, socio-economic, and political literature” as well as “diverse modes of political analysis and argument.”533 Of course, legal education was a wider problem in the late 1970s,534 not just a concern of the critics, and there were scholars favoring a more traditional education.535 Neverthe- less, problems of legal education were the same as they were almost two decades, even half a century earlier, and the responses thereto were still basically the same. While the

527 Richard L. Abel, Socializing the Legal Profession: Can Redistributing Lawyer’s Services Achieve Social Justice? 1 Law & Policy Quarterly 5, 7–15, 19–24, 27–28, 36–41 (1979). 528 William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis- consin Law Review 29, 36–38, 42–46, 52, 56, 74–89, 94–102, 112–119, 130–144. 529 Wythe Holt, A Radical Law School, 2 ALSA Forum 25, 25 (2/1977). 530 Karl E. Klare, Contracts Jurisprudence and the First-Year Casebook, 54 New York University Law Review 876, 876 (1979). 531 Jerold S. Auerbach, What has the Teaching of Law to Do with Justice? 53 New York University Law Review 457, 457–458, 466–467, 472–474 (1978). 532 Rand E. Rosenblatt, Supporting Advocacy for Social Change, 53 New York University Law Review 623, 624 (1978). 533 Klare 1979, supra n. 530 at 895. 534 See, e.g., Francis A. Allen, The Causes of Popular Dissatisfaction with Legal Education, 62 A.B.A Journal 447–450 (1976). See also the symposium in 53 New York University Law Review 293–676 (1978). 535 Francis A. Allen, The New Anti-Intellectualism in American Legal Education, 28 Mercer Law Review 447, 454–461 (1977).

132 tradition stressed doctrine, critical scholars argued that lawyers did not understand the function of their profession. The conflict between traditional and radical legal education became most obvious in Wythe Holt’s radical polemic. Holt argued that since legal education was a part of the dominant power structure, there was a need for a radical law school that would “expose the myth of law”536 and which would “shake off all the shackles of liberal ethos”537 and the “harsh arbitrariness of the so-called Socratic method.”538 Radical law school would have no formal requirements or hierarchies, and the students would be educated to understand the connection between law and society, think authentically, and decide the course of their profession without indoctrination into modern society.539 Holt’s criticism reflected the earlier responses to the crisis of legal education but it radicalized them. It was also inspired by the radical thought of the 1970s that stressed the ideological character of law and therefore encouraged radical reforms. Although the majority of the profession did not recognize the crisis of law of the early 1970s even by the end of the decade, it was still existent for the critical scholars who were also becoming more radical about it. On certain occasions, the critical scholars were very radical, whereas on others they modified the radical argument to suit a more constructive approach. Besides the legal profession and education, the critical scholars also dealt with other problems. For instance, in an empirical study on the court structure, Wolf Heydebrand argued that they functioned in a social, political, and economic context, and the changes in the structures of the context were reflected as changes in the function of the courts.540 Rosenblatt continued his criticism of the health-care system by pointing out that the gaps between the regulation and the practice followed from structural biases.541 The structures of the administration of justice were naturally an important object of research, because the argument was that law in action could not be understood without understanding the context of the action. Although the premises were basically the same, the approaches varied. In the respects dealt with here, Heydebrand’s analysis was closer to critical law and society scholarship whereas Rosenblatt's article was more of a structural criticism. Criticism of law was moving from the simple demonstration of the indeterminacy of law to analysis of the origins and nature of the problem and the possibility of change. Janet Lindgren analyzed the structure of judicial decision-making which, she claimed, included an inherent choice, but the theories and values on which the choice was based were never articulated. On the contrary, the basis of decision-making was assumed to be

536 Holt 1977, supra n. 529 at 50. 537 Id. at 30. 538 Id. at 40. 539 Id. at 28–50. Holt’s radical proposal recalled the radical spirit of the 1970s. In addition, it resembles that of Duncan Kennedy. (See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York: New York University Press 2004) (1983)). 540 Wolf V. Heydebrand, The Context of Public Bureaucracies: An Organizational Analysis of Federal District Courts, 11 Law & Society Review 759–821 (1977). 541 Rand E. Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 Yale Law Journal 243–336 (1978).

133 given, although it was, in fact, chosen. Her alternative theory related the public and the individual interests to the particular interests of a person in a particular case, and the decision was to be made directly for the parties because courts determined the special and particular meaning of the general decision of the legislator.542 Lindgren’s analysis reflected the impossibility of giving a precise meaning to the law and choosing between conflicting alternatives. However, it was also an effort to show that critical premises could function as a basis for alternative doctrines. In addition, critical scholars tackled many contemporary legal problems from a critical yet constructive perspective. They argued, for instance, that judicial decisions had undermined the possibility of prison reform and authorized discrimination within the processes of prison administration,543 tax deductions in fact helped the rich although the tax system ought to redistribute wealth,544 juries ought to be composed of people with the same backgrounds as the parties to the case to guarantee understanding of the circumstances,545 and that the connection between society and jurisprudence had contributed to the uncertainty of the legal protection of racial equality.546 Critical scholarship always concentrated on the vagueness of doctrine and on the gap between law in books and law in action which followed from the argument that law was conditioned by social structures and consciousness. On some occasions, these theoretical premises were used to construct alternative theories, doctrines, and models for law and jurisprudence. Hard-core critical legal scholarship was not often constructive, but the periphery was, even though they shared the basic assumptions on the theoretical basis. The crisis of law that was obvious in the mid-1960s and became widely acknowledged at the turn of the decade continued till the end of the 1970s. At the same time, critical legal scholarship changed from realistic critique and sociological legal studies to fundamental criticism and philosophical critical theory. It had also acquired a central organization, the CLS movement, which was developing its own identity and establishing a position within the field of jurisprudence. The 1970s was the formative period of CLS, but it kept expanding and transforming throughout the 1980s. Before analyzing the critical legal scholarship of the 1960s and 1970s historically, I will extend our scope for a bit to fully understand the dynamics of critical legal thought. In the following two sections, I will lay out the basic outlines of critical legal scholarship on the problems of race and gender. These were problems that the legal scholars tackled in the 1960s and 1970s, were submerged into the general critical legal scholarship in the late 1970s, and developed into individual theories in the 1980s.

542 Janet S. Lindgren, Social Theory and Judicial Choice: Damages and Federal Statutes, 28 Buffalo Law Review 711, 711–714, 179–727, 749–750, 754–763 (1979). 543 Elizabeth Alexander, The New Prison Administrators and the Court: New Directions in Prison Law, 56 Texas Law Review 963–1008 (1978). 544 Mark Kelman, Personal Deductions Revisited: Why They Fit Poorly in an “Ideal” Income Tax and Why They Fit Worse in a Far from Ideal World, 31 Stanford Law Review 831–883 (1979). 545 Lewis H. LaRue, A Jury of One’s Peers, 33 Washington and Lee Law Review 841–876 (1976). 546 Morton J. Horwitz, The Jurisprudence of Brown and the Dilemmas of Liberalism, 14 Harvard Civil Rights-Civil Liberties Law Review 599–613 (1979).

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3.2.3 The emergence of the Critical Race Theory

The central point in Critical Race theory is the element of color in law.547 The problem of race in America originates from the time of slavery, and hence racism and racial inequality were one of the most pressing social problems in the United States in the twentieth century. Thus, too, the civil rights movement that escalated in the 1960s was one of the most important elements of the decade. Besides the civil rights struggle, race consciousness within various academic disciplines had developed during the twentieth century,548 and enthusiastic black students who had entered the law schools in the 1960s and 1970s were willing to adapt to the critical atmosphere of the turbulent university and learn from the methods of critical scholarship.549 A central tenet for them was, however, the assumption that formal equality reinforced racist attitudes. The evolution of race consciousness in this respect was a response to the conservative atmosphere and emphasis on the color-blindness of law.550 Thus, Critical Race Theory (CRT) emerged “in the mid-1970s with the realization that the Civil Rights Movement of the 1960s had stalled and that many of its gains, in fact, were being rolled back.”551 The roots of critical race theory are in the mid-1970s, although the theory as such developed only in the early 1980s.552 The increasing scholarship on the relationship between race and law with the civil rights movement in the 1960s553 also contributed to the general awareness of the race problem. However, people of color were not always pleased with the civil rights movement because they thought it did not completely understand their problems.554 At the beginning of the 1970s, African American scholars noted that, despite the promises of the 1960s, society had not been able to transform

547 Cheryl I. Harris, Critical Race Studies: An introduction, 49 UCLA Law Review 1215, 1216–1217 (2002); Minda 1995, supra n. 42 at 167. History and development of Critical Race Theory (CRT) have been of interest in a vast amount of literature. See, e.g., Kimberlé Williams Crenshaw, Twenty Years of Critical Race Theory: Looking Back to Move Forward, 43 Connecticut Law Review 1253–1353 (2011); Kimberlé Williams Crenshaw, The First Decade: Critical Reflections, or, “A Foot in the Closing Door”, 49 UCLA Law Review 1343–1372 (2002); Richard Delgado, Liberal McCarthyism and the Origins of Critical Race Theory, 94 Iowa Law Review 1505–1545 (2009); Athena D. Mutua, The Rise, Develop- ment, and Future Directions of Critical Race Theory and Related Scholarship, 84 Denver University Law Review 329–394 (2006). See also the symposium on CRT in 94 Iowa Law Review 1497–1701 (2009). 548 Crenshaw 2011, supra n. 547 at 1257. 549 Delgado 2006, supra n. 547 at 1515–1518, 1533–1543. 550 Mutua 2006, supra n. 547 at 334–337. 551 Richard Delgado and Jean Stefancic,: Critical Race Theory: An Annotated Bibliography, 79 Virginia Law Review 461, 461 (1993). The article contains a comprehensive bibliography of CRT up till 1993. 552 The name “critical race theory” was created at the “New Developments in Race and Legal Theory” convention, held in 1989. (Crenshaw 2002, supra n, 547 at 1359–1361.) Development of critical race consciousness within the law schools and the emergence of race discourse within the Critical Legal Stud- ies Movement in the early 1980s are analyzed in Crenshaw 2002, id. at 1344–1359; Crenshaw 2011, supra n. 547 at 1264–1297. 553 Bullock 1961, supra n. 390; Brest 1966, supra n. 194; McCarthy & Stevenson 1968, supra n. 195; Arthur Larson, The New Law of Race Relations, 1969 Wisconsin Law Review 470–524. 554 Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 Uni- versity of Pennsylvania Law Review 561, 566–573 (1984); Minda 1995, supra n. 42 at 168.

135 itself. A journal was thus needed to focus on the current problems of the blacks, and the Black Law Journal was founded in 1971, focusing on scholarship on legal problems and race.555 Critical Race theory developed parallel to CLS. There was the increased civil rights activism and scholarship on the one hand, and the continuing social inequality of racial minorities despite the civil rights legislation on the other. In addition, there was the critical scholarship emphasizing the ideological function of law. Race consciousness had arisen within scholarship, and the African American scholars were highly interested in legal problems, especially as the civil rights movement was fading. Scholars interested in civil rights issues and wanting to explain why the efforts had failed had much to deal with, and they could use the methods of critical legal theory in explaining the situation. Critical race theory thus borrowed from other critical disciplines of the time, such as critical legal studies and critical criminology, and applied these approaches to the problems of race. In the opinion of the critical race theorists, it was not simply the liberal ideology that distorted the images of reality, it was also the racial aspect. The fundamental concerns of CLS and critical race scholars were very close to each other. Indeed, at first, critical scholars interested in race problems could participate in the general critical legal scholarship, but soon realized that their white colleagues were often looking at the problems from a non-minority perspective.556 Derrick Bell, the most significant of the early race theorists, who was familiar with the critical approaches, noticed the systematic racial bias of law in the early 1970s and argued that the traditional scholarship had denied the fact that the aspects of slavery were still present.557 He also noted that discrimination within the judicial process was so pervasive that it was impossible for blacks to receive fair treatment.558 Whereas traditional civil rights scholarship had faith in legal doctrine and the courts in combating racial discrimination,559 critical race scholars were more pessimistic about the ability of law to bring improvement and went beyond the doctrine in their analysis of the legal situation. According to Bell, the administration of justice was unable to promote equality560 and legal reforms were merely statements in the interests of white people to make the situation look better.561 Furthermore, he continued, legal remedies were modest attempts in the struggle

555 Editorial, 1 Black Law Journal 3–4 (1971). 556 Mutua 2006, supra n. 547 at 343–348; Crenshaw 2011, supra n. 547 at 1263–1264. 557 Derrick A. Bell Jr., Black Faith in a Racist Land: A Summary Review of Racism in American Law, 17 Howard Law Journal 300–318 (1972). 558 Derrick A. Bell Jr., Racism in American Courts: Cause for Black Disruption or Despair? 61 California Law Review 165–203 (1973). 559 See, e.g., Paul Brest, In Defense of the Antidiscrimination Principle, 90 Harvard Law Review 1, 52–54 (1976). 560 Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegrega- tion Litigation, 85 Yale Law Journal 470, 514–516 (1976). 561 Derrick A. Bell Jr., Racial Remediation: An Historical Perspective on Current Conditions, 52 Notre Dame Lawyer 5–29 (1976).

136 for equality because law had no serious impact on reality and could be interpreted to mean various things.562 Race consciousness was the most important thing for the critical legal scholars who were interested in race problems. Just as the critical legal scholarship stressed the fact that law reified reality to seem rational, critical race theory stressed that the traditional legal consciousness created the illusion of color-blind law and a racially equal society. This, however, was regarded as a mere illusion, since the irrationality and indeterminacy of law functioned to produce systematic discrimination against racial minorities because of the inherent ideological and structural biases. For the race theorists, racism in law was much more than few discriminating practices and some bias within the administration of justice; it pervaded the whole system. Therefore, one had to study the historical and social context of particular circumstances in order to understand the dynamics of racism. As the vagueness of legal remedies intended to improve racial inequality became more obvious in the late 1970s, critical race theorists also turned toward pessimism, and began to consider the legitimizing aspect of law. Alan Freeman argued that antidiscrimination law was constructed from the perspective of the perpetrator instead of the victim, and therefore paid no due attention to the circumstances of the victim which, however, were crucial. Thus, the law legitimated the prevailing situations and made things appear as if discrimination and inequality were being dealt with.563 Just like the critical legal scholars, critical race theorists also argued that law reified reality to appear as if improvement was achieved. The critical argument in this regard was that law shaped the consciousness of the people to believe in equality. Critical race theorists simply turned this Marxist argument to concern the problems of race. Critical race theory arose out of the dynamics of race problems in America and the rising critical thought. Race problems and the law had been pressing questions for a century, and the postwar years had only intensified them. What the 1960s changed was that there was a legal doctrine invalidating racial segregation and civil rights acts pro- hibiting discrimination. There were also more African Americans in the universities receiving higher education and prepared to do scholarly work. The 1960s had been a time of great expectations for the African American but, by the beginning of the 1970s, those hopes had proven false. Scholarship had pointed out the fact that the administration of justice discriminated against the blacks, but, according to the critical race scholars, the traditional civil rights scholarship focused too much on the formal aspects of the problem which was not a solution for the minorities experiencing the inequality. There- fore, racial problems demanded more explicit and critical research. The critical legal scholarship rising at the time provided a temporary solution but the critical scholarship was not sufficiently concerned with racial inequality. In the 1970s, critical race theorists

562 Derrick A. Bell Jr., Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 Califor- nia Law Review 3, 16–19 (1979). 563 Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minnesota Law Review 1049, 1051–1057 (1979).

137 still cooperated with CLS. The frustration came in the 1980s when scholars wanted to develop a theory that would take the problems of race seriously in legal analysis.

3.2.4 The rise of feminist jurisprudence

Another important branch of critical legal theory also arose out of the turbulence of the 1960s, namely, feminist jurisprudence. The legal status of women was long deprived. After a long and fluctuating struggle toward equality between the sexes, the social up- rising of the 1960s brought new forms of women’s movement. Women’s consciousness of their role in society was rising during the postwar decades,564 but it was not until the 1960s that the large-scale women’s movement appeared.565 Women’s activism brought changes in the legislation concerning women’s rights in the 1960s and especially in the 1970s with the help of women’s rights litigation.566 Women had also had difficulty in obtaining legal education, but by the early 1970s they had full access to all law schools in America, which meant improved opportunities for a legal career both in a practice and in academia.567 Discrimination had caused trouble for women in beginning a career, which, partially inspired by the civil rights struggle, had increased the critical consciousness of women.568 Thus, inspired by the political movement, feminist jurisprudence was developed in the universities during the 1970s.569 Women’s status in the society, academia, and professional life was poor, and as women became more aware of this fact they started to struggle against inequality between the sexes. The rise of the women’s movement in the 1960s increased the concern for equality, and encouraged studies on the legal status of women in society570 and within the legal profession.571 As the critical attitude toward the neutrality of law in general intensified, critical feminists noted that “[t]he popular assumption that the law is even-

564 A major factor in the birth of modern feminism was The Second Sex by Simone de Beauvoir, published in 1948. It was translated into English, although poorly, and published in 1953 and became very influential in the United States as well. (Rosen 2003, supra n. 25 at 56–58.) Blanche Crozier had criticized sex discrimination in the 1930s. (Blanche Crozier, Constitutionality of Discrimination Based on Sex, 15 Boston University Law Review 723–755 (1935).) 565 Deporah L. Rhode, The “No Problem” Problem: Feminist Challenges and Cultural Change, 100 Yale Law Journal 1731, 1745 (1991). 566 Ellen Marrus and Laura Oren, Feminist Jurisprudence and Child-Centered Jurisprudence: Historical Origins and Current Developments, 46 Houston Law Review 671, 680–683 (2009). 567 Donna Fossum, Women in the Legal Profession: A Progress Report, 67 Women Lawyer’s Journal 1–5 (4/1981). 568 Audrey Wolfson Latourette, Sex Discrimination in the Legal Profession: Historical and Contemporary Perspectives, 39 Valpraiso University Law Review 859, 883–884 (2005). 569 Marrus and Oren 2009, supra n. 566 at 674; Minda 1995, supra n. 42 at 128–130. 570 Leo Kanowicz, Women and the Law: The Unfinished Revolution (Albuquerque: The University of New Mexico Press 1969). See also Ruth B. Cowan, Women’s Rights through Litigation: An Examination of the American Civil Liberties Union Women’s Rights Project, 1971–1976, 8 Columbia Human Rights Law Review 373, 377 (1976). 571 James J. White, Women in the Law, 65 Michigan Law Review 1051–1122 (1967); Doris L. Sassower, The Legal Profession and Women’s Rights, 25 Rutgers Law Review 54–66 (1970).

138 handed does not hold true in the area of women’s rights.”572 The poor status of women became apparent particularly to those going for a career in the male-dominated business. A Harvard graduate, Brenda Fasteau, noted that only after she had entered the Harvard Law School did she “became fully aware of the extent to which women are oppressed in this country.”573 Critical scholarship was thus an attractive choice for those who wanted to go beyond the problems and analyze their causes. Scholarship on women’s rights intensified in the 1970s. The Women’s Rights Law Reporter was founded in 1971 and the Harvard Women Law Journal in 1978.574 In the late 1970s, female scholars participated actively in the work of critical legal studies. However, as were the critical race scholars, critical scholars on the status of women also became frustrated with the male aspects of CLS.575 In general, “feminist radicals challenged not only liberalism but also the gender hierarchies imbedded in both theory and practice on the Left,”576 which was also what they did in legal scholarship. Feminist jurisprudence attacked legal formalism and the apparent neutralism that were seen to protect and reinforce male domination.577 For feminist jurisprudence, too, law was an aspect of power, but this power was dominated by men. At its heart were the presumptions that, first, society was dominated by men and therefore gender was more a social than biological construction, and second, that because women were subordinated to men in society, law protected and reproduced this subordination. From the beginning, feminist jurisprudence struggled toward equality between the sexes. Women’s rights scholars had noted the ambiguity in the legal status of women and wanted to end the discrimination by creating a doctrine and praxis of equal treatment.578 An important topic for women’s rights scholars was an equal rights amendment to the Constitution.579 They argued that the discrimination against women both in law and in practice was so pervasive that constitutional reform was needed,580 and that gen-

572 Faith A. Seidenberg, The Submissive Majority: Modern Trends in the Law Concerning Women’s Rights, 231, in Black (ed.) 1971, supra n. 178 at 231–239. 573 Brenda Fasteau, Law and Women, 239, in Black (ed.) 1971, supra n. 179 at 239–248. 574 See Why a Women's Law Journal, 1 Harvard Women’s Law Journal viii (1978). Women Lawyers Journal had, of course, already been founded in 1911. On the rise of feminist legal scholarship, see Katharine T. Bartlett, Feminist Legal Scholarship: A History through the Lens of the California Law Review, 100 California Law Review 381–429 (2012). 575 Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education, or “The Fem-Crits Go to Law School”, 38 Journal of Legal Education 61, 63–64, n. 7 (1988). 576 Sara M. Evans, Beyond Declension: Feminist Radicalism in the 1970s and 1980s, 57, in Gosse and Moser (eds.) 2003, supra n. 31 at 52–66. 577 Marrus and Oren 2009, supra n. 566 at 682–683. 578 Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 George Washington Law Review 232, 237–241 (1965). 579 Brown; Emerson; Falk; Freedman 1971, supra n. 368. See also the symposium on the Equal Rights Amendment in 6 Harvard Civil Rights-Civil Liberties Law Review 215–287 (1971). 580 Norman Dorsen and Susan Deller Ross, The Necessity of a Constitutional Amendment, 6 Harvard Civil Rights-Civil Liberties Law Review 216, 216–221 (1971). The most deprived were the African American women because they were under double discrimination. (Pauli Murray, The Negro Woman’s Stake in the Equal Rights Amendment, 6 Harvard Civil Rights-Civil Liberties Law Review 253, 253–254 (1971).)

139 der was not a necessary legal category for individuals.581 Traditional scholars who supported equality but were skeptical of the equal rights amendment opined that differentiated treatment of the genders was sometimes reasonable and amending the Constitution would only cause further problems.582 Feminist theory was still optimistic about reforms through law and thus pushed a radical reform. Traditional scholars, on the other hand, were concerned about doctrine and were therefore modest regarding reform. Besides illuminating the rise of women’s consciousness, the controversy over the equal rights amendment reflected the split between the traditional and the critical points of view, since the critical scholars appealed to the ideological and constitutive elements of law. To the critical feminist scholars, the problem of gender was of such fundamental importance that only extreme measures would do. As Barbara Cavanagh argued, the subordinated status of women was so deep within the structures of the society that the law protected and reproduced the images of women as weak and fragile people, destined to child-rearing and house-work and therefore incapable of doing the men’s work. Thus, legal changes were needed to delegitimize the repression and to contribute to the cultural change.583 The feminists did not, however, take law at face value. Even the laws meant to protect women were often regarded as paternalistic measures upholding the traditional image of women, or their influence was seen to be undermined in practice.584 Historical, social, cultural, and psychological data were often used to point out the pervasive factors behind the law that prevented change having the desired effects. The emphasis on the context was essential because the problems were not in the letter of the law. Critical feminist legal scholarship utilized the recent trends in legal scholarship to analyze the deep structures of law. Constitutional analysis was also an important topic for the feminist scholars because in the 1970s the Supreme Court handed down many decisions concerning sex as a reasonable criterion for different standards.585 Feminist scholars criticized the Supreme

581 Thomas I. Emerson, In Support of the Equal Rights Amendment, 6 Harvard Civil Rights-Civil Liber- ties Law Review 225, 225 (1971). 582 Paul A. Freund, The Equal Rights Amendment is not the Way, 6 Harvard Civil Rights-Civil Liberties Law Review 234, 234–235, 238, 240–241 (1971); Philip B. Kurland, The Equal Rights Amendment: Some Problems of Construction, 6 Harvard Civil Rights-Civil Liberties Law Review 243, 243, 246–247, 249–252 (1971). 583 Barbara Kirk Cavanagh, “A Little Dearer than His Horse”: Legal Stereotypes and the Feminine Per- sonality, 6 Harvard Civil Rights-Civil Liberties Law Review 260, 260–271, 278, 284–287 (1971). 584 Dorsen and Ross 1971, supra n. 580, at 218; Cavanagh 1971, supra n. 583 at 262; Nancy S. Erickson, Women and the Supreme Court: Anatomy Is Destiny, 41 Brooklyn Law Review 209, 212 (1974); Nancy S. Erickson, Kahn, Ballard, and Wiesenfeld: A New Equal Protection Test in “Reverse” Sex Discrimina- tion Cases? 42 Brooklyn Law Review 1, 11–12, 53 (1975). 585 See John D. Johnston Jr., Sex Discrimination and the Supreme Court ─ 1971–1974, 49 New York University Law Review 617–692 (1974); Erickson 1975, supra n. 584; Ruth Bader Ginsburg, Gender and the Constitution, 44 University of Cincinnati Law Review 1–42 (1975). The literature on the topic is vast and there is thus no opportunity to delve into it any deeper here. The problem, nonetheless, was whether men and women could be treated differently in any situation. For some, legislative protection of women was an honest effort to improve the situation of women after a long period of inequality, whereas for others the differentiation of the sexes was a reminiscent of paternalist society. Therefore, opinions could have gone either way. A liberal judge might have either validated or invalidated “protection” statutes depending on whether he preferred equal treatment of the sexes or substantive equality between them, but

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Court for exercising paternalistic notions toward women and refusing to attend to the real motives behind the laws or to the real-life circumstances of modern society.586 Fem- inist jurisprudence of the 1970s often endorsed formal equality. According to the feminists, although the Court noted “realities”, it did this in a conservative and out-of-date style. Women were not to be treated differently because that upheld the image of women as housewives. Critical scholars thus favored a doctrine according to which gender would be no basis for classification because it would affect the ideology behind the law. To the feminists and critical scholars, the problem of discrimination was deeper than simply in the physical differences between the sexes. In a call for emancipation, John Johnston noted that law was not supposed to coerce people to live by some by- gone roles,587 and in a more radical feminist sense, everything, even sports, was to be integrated under equal rights.588 Equality, however, required more than changes in doctrine. It required fundamental changes in law and society,589 and the aspects of sex- based discrimination should be included in legal education.590 Critical feminists had adopted critical thought and applied it to the gender issue. Legal change was considered as merely one step toward emancipation, and changes in the society and consciousness were also required. Scholars considered various legal remedies in seeking equality. As affirmative action became important in the late 1970s, scholars of critical gender studies tackled the issue. They argued that affirmative action ought to be permitted when its purpose was to improve the access of women to social positions they had difficulty entering because of historical circumstances.591 Women’s rights were considered to be in a need of special critical scholarship that could understand the problem because old-school realism592 and the Supreme Court593 were indifferent to them. By the late 1970s, the critical feminist thought in law had become obvious. Women felt that traditional theory as well as critical theory without awareness of gender was insensitive to their problems.

in any event he would have supported equality. A conservative judge could have also decided either way depending on whether he preferred differentiation of the sexes or legal formality. “Protection” could have therefore been seen to mean either promoting equality or paternalism. The problem was that if gender was a reasonable criterion for distinction, and protection was thus valid, gender could also be used as a criterion to discriminate against women, or at least maintain the image of women in need of protection. The case was a double-edged sword. 586 Erickson 1974, supra n. 584 at 230, 236–238, 242–255, 260, 278–281; Ruth Bader Ginsburg, Some Thoughts on Benign Classification in the Context of Sex, 10 Connecticut Law Review 813, 816–818 (1979). 587 Johnston 1974, supra n. 585 at 691–692. 588 Barbara A. Brown and Ann E. Freedman, Sex Averaging and the Equal Rights Amendment, 2 Wom- en’s Rights Law Reporter 35, 42–46 (1975). The argument was that much of the differences between the genders derived from social and cultural factors. (Id. at 43–47.) 589 Erickson 1975, supra n. 584 at 17–18. 590 Ginsburg 1975, supra n. 585 at 31. 591 Nancy Gertner, Bakke on Affirmative Action for Women: Pedestal or Cage? 14 Harvard Civil Rights- Civil Liberties Law Review 173, 209–124 (1979). 592 Erickson 1974, supra n. 584 at 217–218. 593 Gertner 1979, supra n. 591 at 195.

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Indeed, the problem was pressing because, as the eminent feminist lawyer Nancy Gertner noted, “distinctions drawn solely on the basis of sex are not treated as wholly impermissible, as are distinctions drawn solely on the basis of race.”594 Interest in women’s rights and gender studies in law had increased in the 1970s,595 but women still felt discriminated against as the decade approached its end, and scholars noted problems of discrimination regarding such matters as pregnancy596 and work.597 For the feminists, it seemed obvious that sex-based discrimination was a pervasive problem that could not be dealt with in traditional ways. By the late 1970s, critical feminist jurisprudence had developed greatly. In 1979, Catharine MacKinnon published her book Sexual Harassment of Working Women, in which she argued that harassment equated to sex-based discrimination and had been long tolerated because of the social and legal structures.598 Although the response was not totally uncritical, MacKinnon’s book was a major step in the development of feminist jurisprudence.599 Her book was a thoroughgoing critique of ideology since, as was typical of critical gender studies in law, she pointed out that the contemporary consciousness was male-based and therefore law could not understand problems of women. The target was the traditional practices of the societies which were seen to produce harmful effects. Women, like African Americans, struggled for equality in the 1960s and 1970s. This struggle was also seen in civil rights legislation, formation of movements, and litigation. The problem and its legal hindrances also initiated some lively scholarship. Feminist jurisprudence grew out of the critical scholarship on the legal status of women and the ambiguity of the legal doctrine on gender issues. According to the feminists, the inequality of the sexes was so pervasive that traditional scholarship simply could not grasp it, and the roles of the genders were inherent in the structures of the society and consciousness of the people, thus preventing change and causing ambiguities in law. The critical feminist scholars sought to elaborate theories that could transcend the law and analyze the factors behind it by taking the problem of gender into account. Like critical race theorists, scholars of the early critical gender studies were often associated with the critical legal studies movement, but they were disappointed at the male dominance of that movement too, and were later to set up a movement of their own. Both

594 Id. at 181. (Footnote omitted.) 595 See the symposium “Law and the Status of Women” in 8 Columbia Human Rights Law Review 1–412 (1976). The symposium reflects the rise of the global women’s rights consciousness as well as the need for comparative and cultural studies on the problem. 596 Nancy S. Erickson, Pregnancy Discrimination: An Analytical Approach, 5 Women’s Rights Law Re- porter 83–105 (1979). 597 Mary Joe Frug, Securing Job Equality for Women: Labor Market Hostility to Working Mothers, 59 Boston University Law Review 55–103 (1979). 598 Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press 1979). 599 See Nadine Taub, Book Review [Sexual Harassment of Working Women], 80 Columbia Law Review 1686–1695 (1980).

142 critical race theory and feminist jurisprudence were adaptations of critical thought to particular problems.

4 Historical perspectives on CLS

The development of critical legal scholarship from the 1960s to the end of the 1970s has now been analyzed. It should be obvious that the theoretical reorientation and the matur- ing of the scholars in the 1970s radicalized sociological jurisprudence and the benevolent thought of the 1960s. The historical analysis of the development involves, however, several aspects, which will all be dealt with in this section. Furthermore, I will review the conventional accounts of the history of CLS in order to make a critical analysis and a synthesis of them. I will point out that we should not reduce CLS to any one single factor, nor should we criticize it as sheer radicalism. Rather, it should be understood as a complicated cultural movement, pursuing an authentic understanding of the law in both a practical and scholarly sense. The origins of the CLS movement are in the law school of the 1960s. As Robert Gordon has written, CLS “started for most of us in the late 1960s or early 1970s out of a sense of extreme dissatisfaction with our own legal education.”600 These disappointed students then wanted to find alternative ways to practice law that would respond better to the inequalities in society.601 Although it has been argued otherwise,602 CLS scholars had a background in the university radicalism of the 1960s which had some resemblance to the style of the critical literature.603 By the 1970s, there already were radical blocs in the faculties of the humanities and social sciences, and thus in an institutional sense, CLS was a collection of young, radical scholars forming a bloc in the law school

600 Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 Florida State University Law Review 195, 196–197 (1987). 601 Robert W. Gordon, New Developments in Legal Theory, 282–283, in David Kairys (ed.), The Politics of Law: A Progressive Critique (New York: Pantheon Books 1982), 281–293. 602 Anthony Chase writes that “[t]he frequent characterization of CLS professors as 1960s hippies or radicals who have gotten tenure in the law school could not be farther off the mark.” (Anthony Chase, A Note on the Aporias of Critical Constitutionalism, 36 Buffalo Law Review 403, 418 (1987).) This is because “most leading CLS scholars were either too old or too young in the period of critical resistance to the Vietnam War, about 1967–1972, to have been undergraduate college students involved in groups like Students for a Democratic Society.” (Id. at n. 32.) In a sense this is true, but it seems to be an over- interpretation. CLS scholars obviously were not typical “student radicals”, but this does not mean that they were not identified with the radical spirit of the time. Just because they did not participate in radical activities does not make them non-radicals. Furthermore, in my opinion the ages between 16 and 32 are neither too young nor too old to participate in radical activities. Perhaps the CLS scholars were not members of SDS but they might nevertheless have identified with similar causes. Besides, the founding members of SDS were basically the same age as the early CLS scholars. 603 Maurice J. Holland, A Hurried Perspective on the Critical Legal Studies Movement: The Marx Broth- ers Assault the Citadel, 8 Harvard Journal of Law and Public Policy 239, 243–244 (1985); G. Edward White, The Inevitability of Critical Legal Studies, 36 Stanford Law Review 649, 658–660 (1984).

143 faculty,604 since it consisted of those radical students who made careers as teachers.605 Traditionally, law professors were mostly lawyers who taught, but the institutional changes in the universities led many scholars of other sciences to law schools “to fulfill their academic inclinations as law professors.”606 Society and academia were in turmoil, but legal education was mostly traditional, and students identifying with the radical cause felt that it did not conform to their notions about justice and right. Some students might have also been disappointed with the anxious, conservative atmosphere and with their stressful experiences of the case method. The critical legal scholarship of the 1970s thus originates from the social circumstances and radicalism of the 1960s and from the student experiences with legal education. Whatever the reason, some law students of the 1960s just could not see any rationality in traditional jurisprudence. When the disappointed students graduated and entered the faculty, they took their experiences with them and, determined to change the tradition, they continued their critical enterprise but often found it hard to do critical scholarship. They nevertheless did not want to jump on the traditional bandwagon and therefore continued to antagonize it. However, the fact that the origins of the critical legal scholarship are in the radicalism of the 1960s does not mean that it explains this scholarship entirely. The bad experiences with legal education, social turbulence, and the ideological orientation of the critical scholars were only the beginnings of the movement. Because of the experiences of the 1960s, critical legal scholarship developed from realist criticism and sociological jurisprudence into radical critique. Even if weakened after the Second World War, realism had left a permanent mark on American jurisprudence. Realism was then revised to a certain extent, as the interest in sociological and cultural legal research, and criticism of the society and law, increased in the 1950s and early 1960s. The tradition of alternative legal scholarship of the 1960s stressed the connection between law and society but did not challenge the fundamental basis of the tradition or the society. There was thus a shift in critical thought in the 1970s. As G. Ed- ward White notes, experiences with the Vietnam War pointed out that consciousness was more important than expertise.607 Critical scholars began to move away from social engineering to philosophical analysis. As noted by Jaff, the faith in reform was lost because it did not go to the root of the problem.608 Critical scholars had to begin a project of total criticism, for, as Bickenbach wrote, “[t]he Realists were concerned to change laws and legal institutions to live up to the ideal of the rule of law; the CLS-ers [we]re concerned to convince us that the Rule of Law is a political trap we must escape.”609 Radicals had lost their faith in the system and sought the roots of the problems in the

604 Nathan Glazer, Marxism and the Law School: A Non-Legal Perspective, 8 Harvard Journal of Law and Public Policy 249, 249 (1985). 605 Gordon 1989, supra n. 237 at 393. 606 Holland 1985, supra n. 603 at 244–245, quotation at 245. 607 White 1984, supra n. 603 at 669–670. 608 Jaff 1984, supra n. 471 at 1145. 609 Jerome E. Bickenbach, CLS and CLS-ers, 9 Queen’s Law Journal 263, 266 (1984).

144 structures of law and society, as well as in the human and legal consciousness. Because of the loss of faith in the civil rights struggle and the utopian ideals of the 1960s, critical legal scholarship turned toward the deep structures and total criticism. This also turned attention from the reality of law to critical analysis of it. Critical legal scholarship turned toward total criticism, but the project was difficult and has been one of the most controversial aspects of CLS. Unger writes that “one can begin to imagine the rudiments of a better alternative to the liberal doctrine, but this alternative should not be mistaken for the liberal view set upside down.”610 Because many of the radical CLS scholars had not defined the elements of the alternative, they have often been criticized for criticism without offering alternatives.611 Many CLS scholars have pointed out that this is not true,612 and rightfully so, for much of the early literature relating to the movement was in fact reformist.613 Hard-core CLS was often mostly critical, but the periphery was not. However, as Richard Fischl has emphasized, the point of this radical criticism was rather to examine the basis of law in order to find the potential for alternatives, not to provide the alternatives.614 In a certain sense, critical legal scholarship followed the trend in Kuhnian paradigm studies, and tried to create a “scientific revolution”. Scholarly conventions and the modes of scientific observation were of intellectual interest during these times and naturally influenced the young scholars who disliked the tradition. Total criticism helped to expose the ideology that lurked beneath the surface of law and also provided a way to participate in the discourse on paradigms. The turn toward philosophy and total criticisim distinguished CLS from its predecessors and from the contemporary critical movements. For instance, CLS has often been linked to realism,615 but it has also been argued that it was in fact antagonistic to realism.616 The usual account, which seems plausible on the evidence piled up above,

610 Unger 1975, supra n. 301 at 7. 611 Philip E. Johnson, Do You Sincerely Want to be Radical? 36 Stanford Law Review 247, 281 (1984). 612 Guyora Binder, Beyond Criticism, 55 University of Chicago Law Review 888, 889 (1988); Mark Kelman, Trashing, 36 Stanford Law Review 293, 299–300 (1984). See also Ed Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 Stanford Law Review 509, 511, 568, n. 5, n. 6, n. 161 (1984). 613 See the references in supra n. 612, and see, e.g., Heller 1976, supra n. 291; Rosenblatt 1975, supra n. 318; Atleson 1975, supra n. 320; Lindgren 1979, supra n. 542; Alexander 1978, supra n. 543; Kelman 1979, supra n. 544. 614 Richard Michael Fischl, The Question that Killed Critical Legal Studies, 17 Law & Social Inquiry 779, 802, n. 51, n. 61 (1992). According to Fischl, much of the misunderstanding of CLS follows from the fact that CLS literature has been read with the question, what would you put in its place? in mind. (Id. at 782, 784–785.) CLS was, however, a paradigmatic movement and did not therefore seek an alternative vision. (Id. at 802.) Thus, many of the accusations that CLS has endorsed a socialist utopia have been construc- tions of the critics of CLS rather than of CLS scholars. (Id. at 790–792, 795–805, 810–818.) 615 Russell, for instance, writes that “[CLS] does have a very pronounced ancestral relationship with Legal Realism.” (Stuart J. Russell, The Critical Legal Studies Challenge to Contemporary Mainstream Legal Philosophy, 18 Ottawa Law Review 1, 5 (1986).) See also Duxbury 1995, supra n. 42 at 424–426. 616 Jeffrey A. Standen, Critical Legal Studies as an Anti-Positivist Phenomenon, 72 Virginia Law Review 983–998 (1986). The argument, in general, is that legal realism was a positivist movement emphasizing empirical observations, but CLS was an anti-positivist movement stressing the connection between facts and values and thus had a metaphysical orientation. Therefore, these movements were, in fact, opposed to

145 goes that CLS radicalized the realist project and turned it from reformism to a radical political agenda.617 Thus, to say that “[i]n many ways CLS is a direct descendant of American Legal Realism,”618 means that it was a critical, academic movement with similarities in methods, purposes, and theories to those of realism, but these differed because the context of the movements was different, and, moreover, the differences between these movements were noted.619 According to Tushnet, the similarity was that CLS “too attack[ed] from the left the complacency of the existing center; it too denie[d] that law is autonomous; it too insist[ed] on the contradictions within the rule system,”620 but this was “not what the Realists actually did, but what they should have done had they carried out the implications of their insights.”621 CLS was an heir of realism in a sense, but the differences were obvious and the inheritance involved the movement more than the theory.622 They both were critical academic movements, attacking the traditional profession and challenging the dominant paradigm. Realism was not particularly influential, but it had to be taken into account because of its legacy for legal scholarship. Scholars did not become enlightened after each other. In many ways this is true, but it reduces CLS to one theoretical premise and does not take into account the fact that there have been several contradictions and diversifications within the movement. 617 ‘Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harvard Law Review 1669, 1677–1681 (1982). 618 Mark Tushnet, Critical Legal Studies: An Introduction to its Origins and Underpinnings, 36 Journal of Legal Education 505, 505 (1986). 619 CLS scholars have interpreted legal realism and noted how they have been construing some arguments. See Gary Peller, The Metaphysics of American Law, 73 California Law Review 1151, 1226 (1985); Mark Tushnet, Post-Realist Legal Scholarship, 15 Journal of the Society of Public Teachers of Law, New Series 20, n. 4 (1980), and see Schlegel 1984, supra n. 314 at 407–408. G. Edward White writes that “[t]he self-conscious identification of Realism as a progenitor of, or an inspiration for, the CLS movement seems to be a grasp at legitimacy.” (White 1984, supra n. 603 at 650.) A detailed and comprehensive study of the differences between realism and CLS is Wouter de Been, Legal Realism Regained: Saving Realism from Critical Acclaim (Stanford, California: Stanford University Press 2008). One needs to note, however, that these differences have been observed, and the argument that “[t]he CLS claim on the legacy of Legal Realism, on the whole, has been uncritically accepted” (id. at 13), is simply not true, since the fact that CLS has interpreted realism to pursue its own ends has been noted. (See Kalman 1996, supra n. 260 at 82–83, and see Standen 1986, supra n. 616, who sees realism and CLS as contradictory movements.) Of course, it can be disputed whether CLS was an heir of realism because the answer depends on the definition of these movements and what it means to say that “realism was the predecessor of CLS”. The book by de Been is excellent in the sense that it points out important facts about these movements and especially illuminates the image of realism, but its picture of CLS is quite simplified. 620 Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 Stan- ford Law Review 623, 626 (1984). Tushnet refers to both realism and law and society. 621 Id. at n. 16. 622 Duxbury writes that in their challenge to the tradition, “critical legal scholars have re-invoked the realist tradition of challenging accepted jurisprudential wisdom” but CLS was “not simply realism repeat- ed,” and, furthermore, “while realism was a mood, critical legal studies has evolved very much as a movement.” (Duxbury 1995, supra n. 42 at 424–425.) In addition, “[t]here was no great coup de grâce which brought realism to an end; it just faded away. The problems to which it had pointed, furthermore, remained unresolved.” Thus, “[c]ritical legal studies embodies a recognition of the fact that important realist lessons have been conveniently ignored, and it endeavours to teach these lessons to American academic lawyers yet again.” (Id. at 427. Italics original.) There was no radical attack on American jurisprudence in the 1960s because realists had already done that. Moreover, the 1960s was a culmination of a steady increase in critical legal scholarship. CLS was a culmination of several lines of development and a reinterpretation and re-application of the realist insights.

146 reading realism and felt compelled to fulfill its mission, but rather they had to settle accounts with it because of the similarities in theories. Nevertheless, critical theory has always to be adapted to the times it prospers in and therefore two movements of very different ages can hardly share anything but the basis. It was thus natural that critical scholars of the 1970s reinterpreted the realism of the 1930s. The interest in metaphysics and fundamental criticism also distinguished CLS from other critical movements of the time. Law and society was criticized for its emphasis on empiricism. As White argues, “[o]f all the issues that were to demarcate Criti- cal Legal Studies from the Law and Society movement, the association of objective empiricism with positivism was the most explosive and the most clearly joined.”623 Since critical scholars were interested in the connection between ideology, values, and facts, they were not interested in empirical approaches. Of course, empirical sciences mattered to the less radical critical scholarship. Critical scholars did not pay much attention to political jurisprudence, but obviously its determinism in behaviorist or political terms was much too simple for a detailed legal analysis and could not provide a basis for legal scholarship.624 Law and economics and rights theories were attacked on the basis that they accepted the dominant ideology at face value. Therefore, the critical scholars thought that they provided the most useful methodology to analyze law without any ideological baggage. The purpose was to transcend the contemporary society in order to explore the origins of the values and policies behind the law and to emancipate both the law and the people from the chains of modernity. The theoretical basis of CLS was diversified, which was also reflected in, and a consequence of, its complicated and comprehensive aims. In general, the theory of critical legal scholarship was a combination legal realism, critical theory, neo-Marxism, Hegelian philosophy and continental philosophies such as structuralism and existentialism, New Left radicalism, liberal sociology and empirical social sciences, and neo- progressive historiography.625 Critical legal scholarship developed at a time when science and scholarship in general were changing, which provided considerable theoretical potential, combining several elements with no one single element being superior to any other. It was an elaboration and a mixture of philosophical pieces and concepts integrated into the critical thought of the 1960s and 1970s. In addition, different scholars favored different theories and drew influences from many sources that could contribute to the critical arguments. Criticism itself both followed the influences and encouraged more; some scholars were critical before reading the philosophy and thus chose the literature to get more inspiration for their ideas, whereas others became critical because of the literature they read.

623 White 1987, supra n. 143 at 835. 624 See Tushnet 1980, supra n. 619 at 29. 625 David Kennedy, Critical Theory, Structuralism, and Contemporary Legal Scholarship, 21 New Eng- land Law Review 209, n. 1 (1985). See also Donald F. Brosnan, Serious but Not Critical, 60 Southern California Law Review 259, 268–270 (1987); Russell 1986, supra n. 615 at 4–5; Turley 1987, supra n. 300 at 597–598, 604. The references, of course, also include the literature of the 1980s.

147

Ideas and theories often resembled those of the Frankfurt School, and it is obvious that it had some impact on the development of critical legal scholarship, but the extent of the impact is difficult to explicate. David Kennedy notes that the impact of critical theory has not been marked in American jurisprudence,626 John Schlegel writes that the members of the first conference on critical legal studies had read very little of its literature,627 and Pierre Schlag argues that “the tenor of most early CLS thought owed much more to the activist and existentialist ethos of Sartre than to the pessimistic theories of the Frankfurt School.”628 It is true that the references to the Frankfurt School were in- frequent and there were no systematic efforts to build theories on it. Nevertheless, even if the direct impact of the Frankfurt School was not great, it might have had more indirect impact because it contributed to the critical postwar scholarship notion on the connection between research and ideology, and laid the foundation for the criticism of naturalism and positivism. Critical theory was a scholarly background that to a certain extent at least structured the critical thought. The criticism of epistemology and the construction of facts also followed the general trends in the philosophical and cultural criticism. Continental philosophy started to influence American legal scholarship in the 1970s,629 and the critical scholars were often greatly inspired by it. Although continental thought has influenced American legal scholarship at least since the late nineteenth century,630 critical legal scholars of the 1960s and 1970s were in the forefront in introducing new continental theories to Ameri- can jurisprudence and hence following the recent intellectual trends. Joan Williams has argued that the epistemology of CLS followed the trends in continental philosophy, where the conception of reality through empirical observations was criticized and the focus was directed to the roles of the observer, culture, contingent conventions, and interpretation.631 In addition, as noted by James Boyle, critical legal scholarship was also a response to the decline of reason to which postwar continental philosophy contributed. Critical legal scholars attempted to show that reason was contingent so that one needed to understand the structures of consciousness to understand the manifestation of social

626 Kennedy 1985, supra n. 625 at 244–245. 627 Schlegel 1984, supra n. 314 at 403. 628 Pierre Schlag, Critical Legal Studies, 297. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1632981 (last visited 29.6 2012). 629 Donald H.J. Hermann, Phenomenology, Structuralism, Hermeneutics, and Legal Study: Applications of Contemporary Continental Thought to Legal Phenomena, 36 University of Miami Law Review 379, 380–381, 385–386, 393, 405 (1982). Unger is the only CLS scholar Hermann includes in his analysis (id. at n. 11), but he could have also included Peter Gabel, Al Katz, and Duncan Kennedy, because now it seems that he has included only works that build on continental philosophy, not those that have been considerably influenced by it. 630 See James E. Herget, The Influence of German Thought on American Jurisprudence, 1880–1918, in Mathias Reinmann (ed.), The Reception of Continental Ideas in the Common Law World, 1820–1920 (Berlin: Duncker & Humblot 1993), 203–228; James E. Herget and Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 Virginia Law Review 399–455 (1987). 631 Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Lang- dells, 62 New York University Law Review 429, 438–439, 445–448, 471–485 (1987). Williams concludes, however, that CLS has departed from the new epistemology in the faith that its theories could transcend the problem of observing reality. (Id. at 473–474.)

148 rationality.632 The emergence of critical legal scholarship indeed followed the linguistic and epistemological turns which directed perception to the construction of reality. The possibilities of describing reality were constrained by the limits of language as well as by the context of culture, society, and politics. CLS philosophy sought to point out the deficiencies in the mainstream thinking so that the essence of being could be redefined. Whatever the impact of philosophy and social theory was, the sources were always read freely and interpreted to suit the purpose. Schlag writes that “[t]o the extent that Marx, Weber, Sartre, Levi Strauss (and later Nietzsche, Derrida, and Foucault) played any role in shaping cls thought, it was either as deep background or as interstitial insight.”633 Although greatly overstated, the argument is substantially correct. As already noted, critical scholars applied various influences, which were adapted to the interest of the scholar. At the beginning, critical legal scholarship was rather a search for authenticity than a theoretical movement. It had neither a definite theoretical basis nor solid influences. It followed the social upheaval and the personal drives of the scholars more than any intellectual or jurisprudential agenda, but this does not mean that theoretical or intellectual sources did not matter. It seems that the fundamental point in the radical- critical legal scholarship was primarily to surpass the collective consciousness of modern man and to examine the authentic self-consciousness of the individual, and various influences were used to a greater or lesser extent, sometimes very superficially, in the endeavor. Furthermore, of course, the scholars were affected by each other’s writings. CLS was a “network of scholars” writing in the law reviews, reading each other’s texts to a varying extent and thus having reciprocal influence on the development of the various theories.634 A common factor between critical scholars was a particular attitude rather than theory. They developed ideas and others were influenced by them and developed them further. The diversity of the influence of critical legal scholarship reflected the diversity of the scholars; they had different emphases and therefore theories differed as well. And as the literature expanded and the critical thought became stronger, the critical scholars felt the need to gather for a conversation. The conference on critical legal studies gathered scholars with similar attitudes, theoretical backgrounds, political orientation, and research interests together. Critical race theory and critical feminist legal scholarship developed with a similar pattern but with some lag. They were intertwined with the movement but grew apart when they become disappointed with it.635 Racial and gender-based inequalities were pressing problems and subjects of social activism. Both women and African Americans had had difficulty in obtaining higher education and tenure in the universities. As these groups increasingly entered the academy, the scholarship also increased. The rising crit-

632 Boyle 1985, supra n. 296, esp. at 690, 730–735, 743–745, 757–762, n. 141. 633 Pierre Schlag, U.S. CLS, 10 Law and Critique 199, 202 (1999). 634 Barrister Interview with Duncan Kennedy 1987, supra n. 206 at 12; A Conversation with Duncan Kennedy 1994, supra n. 324 at 56. 635 See the Minority Critiques of the Critical Legal Studies Movement Symposium, 22 Harvard Civil Rights-Civil Liberties Law Review 297─447 (1987).

149 ical legal studies provided theory and methods that could transcend the limits of traditional scholarship, analyze the connection between ideology, consciousness, and law, critically examine the legal situation in context, and find alternatives to contemporary policies. The critical scholarship on race and gender issues began, of course, outside and parallel to the rise of critical legal studies, but the movements were intertwined in the late 1970s. Race and gender problems were, however, mostly of interest to racial minorities and women. So when it turned out that critical legal studies were not so concerned with these problems, they developed theories of their own. Although it is extremely difficult to pinpoint the actual origins of CLS, it seems that it is best described as an academic counter-culture that pursued various ends. It originated in the counter-culture identity of the 1960s, the disappointments with legal education at the same time, the feelings that the law and society had failed the great expectations, and in the postwar changes in scholarship, science, and jurisprudence. The origins of the counterculture, social radicalism and civil rights movements, the New Left, and the changes in scholarship are of course in the 1950s, but in the 1960s and 1970s legal scholars realized the indefensibility of the legal tradition. CLS was an academic response to the social, cultural, and intellectual changes, that grew out of the combination of the dissatisfaction with the law and the academic legal tradition and the personal drive to criticize and change the tradition. Its theories emanated from the critical thought and alternative jurisprudence of the 1950s and early 1960s. When the scholars who matured during the turbulence of the sixties reached the point at which they were ready to depart both from the traditional and the alternative branch of jurisprudence, they began to develop comprehensive critical theories. The 1970s then registered the evolution of radical-critical legal thought. Radical legal thought developed in the 1970s because that was a time of transformation. The 1960s was a strange decade in which the criticism of the social system sought to point out that apparently benevolent institutions had pernicious effects. In the 1970s, however, the critique turned to adapt these institutions to conform to the rights of the citizen. In a sense, then, CLS was a remnant of the thought of the sixties because at a fundamental level it still aimed to reveal the paradoxes of modern institutions and to show that the modern rights consciousness simply protected the status quo. However, it was not simply the sixties thought adapted to the seventies, but rather new thought changed according to the needs and ideas of the new decade. In the late 1970s there was a movement called Critical Legal Studies. There was no single or unified theory of CLS, although the main points of the movement were basically the same. It is difficult to summarize the theoretical premises because of the diversified literature and, moreover, because Unger seems to be the only one who has tried to develop a systematic theory. Although there is no “theory of CLS,”636 its most

636 For a general review of the “CLS agenda”, see Russell 1986, supra n. 615 at 8–13, and see also Frank Munger and Carroll Seron, Critical Legal Studies Versus Critical Theory: A Comment on Method, 6 Law & Policy 257, 262–272 (1984). For a construction of CLS theory, see Hunt 1986, supra n. 471 and, for criticism of Hunt's analysis, see Martin Krygier, Critical Legal Studies and Social Theory ─ A Response

150 essential elements, as they were in the late 1970s, can be summed up as follows. First, there is no rational basis for legal reasoning. Law is indeterminate and differing decisions deriving from the same facts are always possible. Second, law is related to the dominant social ideology. There are no natural, logical, or necessary solutions within a society, everything being conditioned by ideology. The third premise, following from the second, is that rights and values are socially constructed and thus open to debate, not natural or inevitable. Fourth, following from those above, legal activity is conditioned by the personality of the actor and the structures within which he or she acts, and neither the actor nor the context decides the outcome of a case alone. Fifthly and finally, law is a product of history, and the contemporary circumstances are created and restrained by historical development. These are of course not the only criteria of CLS scholarship but are essential to it. Critical scholars worked on these assumptions and developed various theories. And, furthermore, the more reformist branch of critical scholarship advocated these methods to bring about improvements in law. The response to CLS reflects its image. Despite the radical agenda, early critical legal literature passed mostly unnoticed and it was not until the 1980s that a major reaction began.637 Only Unger’s and Horwitz’s first books attracted serious attention in the 1970s, but it was not until critical scholarship had a firm foothold in academia that it began to attract the attention of the profession. Traditional scholars then argued that CLS merely rewrote old ideas,638 its philosophy was too vague and ambiguous to build any comprehensive theory,639 its arguments were ambiguous and poor,640 and its target was a straw-man.641 It is obvious that critical scholarship caricatured and misinterpreted law and traditional scholarship but that was based on the experiences of the scholars since people with different world views may perceive things differently. Critical legal scholarship followed from the epistemological differences between the critical and traditional scholars. Criticism originated from bad experiences with the society and the law school, but the pursuit of radical criticism drove the scholars further and also contributed to the creation of their enemy. It is impossible to say which was the true state of the law, but the critical scholars perceived only its flaws, set them in ideological context, and criticized the totality. This was a project in which honest and sincere efforts to improve society and update the paradigm were mixed with the pursuit of academic fame and taking revenge on the tradition.

to Alan Hunt, 7 Oxford Journal of Legal Studies 26–39 (1987). For CLS scholars’ synthesis of the theory, see Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harvard Law Review 561–675 (1983); Kelman 1987, supra n. 451. 637 Duncan Kennedy, Psycho-Social CLS: A Comment on the Cardozo Symposium, 6 Cardozo Law Re- view 1013, 1014–1015 (1985). 638 Louis B. Schwartz, With Gun and Camera through Darkest CLS-Land, 36 Stanford Law Review 413, 425, 440, 442, 452–453 (1984). 639 Michael A. Foley, Critical Legal Studies: New Wave Utopian Socialism, 91 Dickinson Law Review 467, 484 (1986). 640 Schwartz 1984, supra n. 638 at 444–448. 641 Williams 1987, supra n. 631 at 485–487; Foley 1986, supra n. 639 at 487; Schwartz 1984, supra n. 638 at 447.

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It has been argued that critics of CLS have often misunderstood the movement and simplified its theories.642 Early critical legal scholarship was not deterministic, simply destructive, nihilistic, or playing only the “law is politics” card. The scholarship was not reductionist, but sought to define law in a highly complex manner and thus to define theories of jurisprudence that could determine the true meaning of law. The purpose of the criticism was to go beyond legal rules and principles to reveal their real purposes and functions. Therefore, the scholarship was centered on the project of total criticism because it was thought that it was the only way to transcend the boundaries of consciousness. CLS was a response to the social problems, but it was also an effort by the scholars to acquire academic capital, and, furthermore, it was a philosophical and political enterprise to create a theory of law and society that could guarantee authentic human essence and freedom beyond the capitalist and socialist state. It was an academic movement of total criticism of the tradition in search of authenticity and originality.

5 Conclusions

5.1 CLS in Context

CLS was an outcome of various factors and the result of long process of development. Its conceptual basis developed in the 1960s and 1970s alongside social and intellectual criticism. Although mainstream jurisprudence took a more conservative and traditional direction after the war, there were forms of realist and alternative legal scholarship during the decades of transformation. Critical legal scholars of the 1970s, however, identified with the antagonistic spirit and radicalized the critical scholarship of the 1960s. They drew influences from the postwar sciences, neo-Marxism, and critical social thought, combined these with the lessons of legal realism, and brought a dash of individuality. After the mid-1970s, there were enough critical scholars to organize a conference and create a semi-formal critical society within the law schools. In the first place, critical legal scholarship was a response to the social changes and hence a product of its time. The 1960s was a decade of transformation, although the changes had begun earlier and the decade mostly marked a revision, resurgence, and radicalization of older ideas. In the 1960s, however, a considerable part of the generation adopted a critical attitude toward society, noted the social inequalities and the injus- tices the modern order created and upheld, and began to struggle against the traditional authorities. The Vietnam War that represented capitalist oppression both home and abroad was the last straw that marked the beginning of the mass radicalism. Critical

642 Collins 1987, supra n. 314 at 397–398; Gordon 1987, supra n. 600 at n. 1. See also Fischl 1992, supra n. 614; Richard Michael Fischl, Some Realism about Critical Legal Studies, 41 University of Miami Law Review 505–532 (1987).

152 legal scholars were students or scholars who were critical and leftist before the 1960s or adopted these ideas during the years of turbulence, and thus identified with the radical students and the leftist agenda. Their literature pointed out that law was part of the social hierarchies of power and therefore contributed to their preservation. Lawyers and legal scholars had looked for alternative ways to practice their profession during the sixties, which was seen as the development of the law and society scholarship and in the creation of the various forms of alternative advocacy as well as in the willingness of lawyers to change the society. Critical legal scholars were the most upset segment of the legal profession who wanted to pursue an academic career. They were interested in philosophy and theory and wanted to elaborate jurisprudence that would suit their interests. Critical legal scholarship was thus a combination of the New Left ideology, the critical attitude of the critical lawyers, and postwar critical theories and continental philosophy. Critical scholars had identified themselves with the radical youth of the 1960s, and they continued the critical work within academia. The critical movement was in many ways like the New Left; it was an academic movement criticizing the dominant consciousness and seeking an alternative theory, and whereas the New Left aimed at participatory democracy, CLS tried to elaborate legal theory that would be true to the actual needs of the people. Critical legal scholarship also followed the general intellectual and scientific trends. The postwar years witnessed the rise of the criticism of positivism and naturalism in science, the linguistic turn, and the transformation of epistemology. Neo- Marxism and critical theories entered the studies of history, sociology, economics, culture, and literature. Furthermore, interdisciplinary legal scholarship became more popular in the 1960s and 1970s. Critical legal scholars applied the new sciences in legal studies and created a philosophy of law that could transcend the pursuit of rationality and the neutrality of traditional jurisprudence. It was a legal theory that denied the superiority of the values and policies of modern society and emphasized the fact that people created the image of reality, the values and norms that were part of it, and constructed social institutions. Critical legal scholarship sought to emancipate law, jurisprudence, and people from the repression of consciousness and to understand the freedom of creation. In the last resort, however, critical legal scholarship was an academic movement. Although many critical legal scholars participated in social practices, an academic career was their primary goal. They were radicals who disliked all the other forms of contemporary jurisprudence and wanted to create a legal theory that could transcend the ideological chains of scholarship. Critical legal scholarship was a way to acquire academic fame, even if indirectly, because criticism itself was a way of self-realization. CLS was a methodology of criticism, combining philosophical thinking into traditional forms of criticism, and stretching the critical potential to the extreme. It was a philosophy of law designed to explore the authenticity of the relation between the individual and law in modern society. Reasons for adopting a critical stance might vary from social benevolence and altruism to philosophical and theoretical interests or from the disappointments of being a student to the willingness to distinguish oneself from the masses.

153

Whatever the reason, the critical scholars found the traditional scholarship unsatisfacto- ry and wanted to create an alternative tradition. The impulses of the critical theory often came from the society and influences came from philosophy and scholarship. The variety of influences indicates that there was no common theory, even if the basic premises were very close to each other. Critical legal scholarship was also a struggle toward authenticity and originality. While stressing one factor in the rise of the CLS movement, scholars are missing some elementary aspects of its development. It is important to understand the rise of the movement as an academic response to the changes in society, culture, and legal scholarship. It is also important to perceive CLS scholars as scholars who were frustrated with the tradition in several ways, and hence expressed their personal world views through their scholarship. Their activities were meant to change the legal scholarship, law, and society, but they were also meant to attack the tradition and create something new. Crit- ical legal scholarship was an expression of a different world view and lifestyle.

5.2 A final remark: CLS in the 1980s

As we have seen, the critical legal scholarship of the 1970s, culminating in the establishment of the Conference on Critical Legal Studies in 1977, was a complex phenomenon combining various aspects of the 1960s and 1970s. There was critical scholarship in the 1960s, but the more radical from of criticism came into existence in a series of fragmentary articles during the early 1970s and, with a more weighty amount of literature published in the latter half of the decade, critical legal scholarship became one of the most influential forms of legal scholarship of the decade. Critical Legal Studies was anything but over as the 1970s came to its close. In fact, it was only entering the most productive and fertile era, and as Duxbury writes, “[a]lthough critical legal studies grew out of the New Left-inspired academic disaffec- tion of the 1970s, it will probably be remembered as the jurisprudence of the 1980s.”643 CLS scholars continued to write on several topics, and in the 1980s it became internationally well-known and a very influential form of jurisprudence. Critical scholars wrote on various topics such as contract,644 labor,645 constitutional646 and criminal law.647 In addition, legal reasoning,648 education,649 rights,650 and law and economics651 were all

643 Duxbury 1995, supra n, 42 at 468. 644 Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Refer- ence to Compulsory Terms and Unequal Bargaining Power, 41 Maryland Law Review 563–658 (1982). 645 Karl E. Klare, Labor Law as Ideology: Toward a New History of Collective Bargaining Law, 4 Indus- trial Relations Law Journal 450–482 (1981). 646 Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Princi- ples, 96 Harvard Law Review 781–827 (1983). 647 Mark Kelman, Interpretative Construction in the Substantive Criminal Law, 33 Stanford Law Review 591–673 (1981). 648 Peter Gabel, Reification in Legal Reasoning, 3 Research in Law and Sociology 25–52 (1980).

154 placed under the radical microscope. CLS also sought to cooperate more with the Guild than it had in the previous years 652, and it expanded in size tremendously.653 In the 1980s, CLS reached the point at which it became known. Whereas the CLS movement faded in the early 1990s,654 critical race theory and feminist jurisprudence prospered, probably because they were more constructive and had a clear agenda. Since the decline of CLS is not, however, the primary concern of this study, we cannot delve any deeper into that problem. The 1980s was, nonetheless, a golden age for CLS. It seems that the philosophical basis, the opportunities the scholarship provided, and the conservative atmosphere of the decade provided a fertile ground for CLS scholarship to flourish in. Moreover, CLS never died. Although it lost lots of its appeal and was eventually absorbed into the dominant paradigm, it has given and continues to give much inspiration, and influences modern legal scholarship. The development of CLS provides an interesting perspective not only on the critical legal scholarship in the United Sates but also a more universal phenomenon of the Western world. The United States was a significant locus of scholarship in the postwar world, which was influenced by European currents but which also had a considerable influence on the development of European scholarship. In the following chapter, we turn to the development of alternative legal scholarship in Scandinavia, because it provides a more particular perspective on the issue.

649 Kennedy 2004, supra n. 539. 650 Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Texas Law Review 1563–1599 (1984). 651 Morton J. Horwitz, Law and Economics: Science or Politics? 8 Hofstra Law Review 905–912 (1981). 652 See Kairys (ed.) 1982, supra n. 598, which was a product of the cooperation of the National Lawyers Guild and CLS. 653 See Kennedy 1985, supra n. 637. 654 John Henry Schlegel, CLS Wasn’t Killed by a Question, 58 Alabama Law Review 967, 967–969 (2007).

155

156

IV Alternative and critical legal scholarship in Scandinavia, 1965–1980

1 Introduction

1.1 Scandinavia as a legal area

In the previous chapter we noted how alternative legal scholarship arose in the United States during the 1960s and evolved into critical legal studies in the 1970s. We noted how various aspects of society, culture, and scholarship affected its development. In this chapter I will examine the alternative and critical legal scholarship of the 1960s and 1970s in the Scandinavian countries, Denmark, Norway, and Sweden,1 which are studied collectively and in less detail than the United States was in the previous chapter, and then Finland in the following one. The intention is a general overview, and the comparison will mainly be done between the Scandinavian countries and Finland on the one hand and the United States and the Nordic Countries on the other. The Scandinavian countries share a relatively similar, albeit not identical, political culture,2 and law and legal scholarship also have many similarities. A general analysis is thus both possible and practical.3 As the Norwegian legal scholar Johannes Andenæs wrote in 1968, “[w]hen it comes to details, there are many differences from one country to another in Scandinavia, but I imagine that the similarities are so great that a foreign observer would easily recognize their legal systems as belonging to the same family.”4 As noted in chapter II, although the Continental legal tradition has had a considerable influence on Scandinavian law and legal scholarship, the historical development has both distanced the Scandinavian countries from the Continental tradition and unified the Nordic legal tradition.5 Because of the historical inheritance and the similar languages,

1 The word “Scandinavia” usually refers to these countries. The phrase “Nordic Countries” is used when Finland and Iceland are included, but Scandinavia can also be used to refer to all five Nordic Countries. Here “Scandinavia” means only Denmark, Norway and Sweden, and “Nordic Countries” includes Fin- land, but the adjective “Scandinavian” can also refer to the Nordic Countries. Iceland will not be a part of my analysis. 2 Øystein Sørensen and Bo Stråth, Introduction: The Cultural Construction of Norden, 7, in Øystein Sørensen and Bo Stråth (eds.), The Cultural Construction of Norden (Oslo: Scandinavian University Press 1997), 1–24. 3 See Ulf Bernitz, What is Scandinavian Law? Concept, Characteristics, Future, 50 Scandinavian Studies in Law 13–29 (2007). 4 Johs. Andenæs, The Legal Framework, 9, in Scandinavian Studies in Criminology, Volume 2 (Oslo: Universitetsforlaget 1968), 9–17. 5 Ditlev Tamm, The Nordic Legal Tradition in European Context ─ Roman Law and the Nordic Coun- tries, 17, in Pia Letto-Vanamo (ed.), Nordisk Identitet: Nordisk rätt i europeisk gemenskap (Helsingfors: KATTI 1998), 15–31. See also Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki, Nordic Law: Between Tradition and Dynamism, 10–38, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki (eds.), Nordic Law – Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 1–39.

157 legal scholars of the Scandinavian countries have always been aware of the currents of their neighboring countries and there has always been close communication between them. The Scandinavian countries have also long been cooperating in law and politics,6 cooperation which has involved legislation as well as legal scholarship. Many of the laws of the Nordic countries have been prepared together and therefore legislation is quite similar, in certain cases even identical.7 The countries have followed each other’s legislative reforms and followed the example if considered reasonable. Furthermore, the lawyers’ associations of these countries have held conferences in which they have been able to contemplate contemporary legal problems. Cooperation itself, of course, creates uniformity, but the basis of the Scandinavian cooperation is also the historical connections between the countries and their closely related legal cultures. The cooperation has therefore been based on their cultural closeness, and has created and reproduced more closeness. During the turbulent times of the 1960s, similar associations for similar causes were established in the Nordic countries. For example, the associations for criminal political research and reform were founded in the late 1960s.8 There were also law journals that were read in all of the countries and in which contemporary problems could be reviewed, such as Tidsskrift for rettsvitenskap (Journal for Legal Scholarship), Nordisk tidsskrift for kriminalvitenskap (Nordic Journal for Criminal Legal Scholarship), and Scandinavian Studies in Law. The last was founded in 1951 to publish Scandinavian legal studies in English. The 1960s increased the common cause. For example, Scandi- navian Studies in Criminology was founded in 1965 to gather and publish Scandinavian criminological research in English. Scandinavian legal scholars did not work within strict national boundaries but cooperated with each other, and the rise of critical jurisprudence boosted the common scholarship. In this chapter, I shall explore the rise of the Scandinavian alternative and critical legal scholarship in the 1960s and its development in the 1970s. I will here use the word critical legal scholarship in referring to Marxist jurisprudence and to fundamental criticism of law and legal scholarship, whereas alternative legal scholarship refers to the various schools of sociological and non-traditional jurisprudence, even if clear distinctions between the extremes cannot be drawn. After I have briefly described the social

6 An influential factor in the common legislation in the postwar era has been the Scandinavian Council, which was founded in 1952 as a formal organization for cooperation between the Nordic Countries. (T.K. Derry, A History of Scandinavia: Norway, Sweden, Denmark, Finland & Iceland (Minneapolis: Universi- ty of Minnesota Press 1979), 374–376.) 7 On the legislative cooperation, see Leif Sevón, Några reflexioner kring det nordiska lagstiftningssamarbetet, TfR 1988, 509–523. 8 The Swedes were the first to establish “The National Swedish Association for Penal Reform”, KRUM in 1966. Denmark and Finland followed the next year, and the Norwegian Association for Criminal Reform (KROM) was founded in 1968. These organizations then cooperated in conferences and research. (Hans Nestius, Förord, 7, in Hans Nestius (ed.), Behandling som Straff: 23 debattinlägg om nordisk kriminalpolitik (Stockholm: Bokförlaget Prisma 1969), 7–13; Thomas Mathiesen, Politics of Abolition: Essays in Political Action Theory (Scandinavian Studies in Criminology, Volume 4, Oslo: Universitetsforlaget 1974), 40–44.)

158 circumstances of the period, I will, first, briefly analyze the rise of the sociology of law and alternative legal scholarship in the 1960s. As will be seen, there was a realist tradition within Scandinavian legal scholarship, but in the 1950s and 1960s the interest in sociological jurisprudence increased and legal scholars began to take a more critical view of their profession. Second, I will explore the development of Marxist legal scholarship in the 1970s. Marxist legal scholarship, which reflected the trends in social and intellectual criticism, was the most critical form of legal scholarship. There were differences and similarities in the Marxist legal scholarship of the Scandinavian countries, but the general trend was the same. Third, I will examine the alternative and critical legal scholarship in the late 1970s and consider a few particular topics. Because there are three countries under consideration, this chapter is not as detailed as chapters three and five. Nonetheless, the general account illuminates interesting and important aspects of the critical legal scholarship of the 1960s and 1970s and is thus useful for the comparative analysis.

1.2 Scandinavia and the 1960s

Scandinavian countries were in a different position after the Second World War, but when the war was over and the reconstruction began, they took a relatively similar path toward modernization. Denmark and Norway had been occupied by Germany, and therefore had to settle their accounts with the war-time administrations. As a result of their war-time experiences and the political situation, they both joined NATO as founding members. Sweden, on the other hand, had not participated in the war and was therefore untouched by its ravages. She also decided to remain neutral in Cold War power politics and declined to align militarily. The decades before the Second World War were a time of slow but steady transformation of the Scandinavian countries, which remained mostly agrarian despite industrialization. The great depression of the 1930s did not hit the Scandinavian countries, which also avoided the rise of fascism, particularly hard. The Second World War interrupted the steady development, but the postwar reconstruction re-started it again. Dur- ing the two decades after the War, Scandinavian countries witnessed a tremendous economic growth, and urbanization and industrialization of the society, all boosted by the population growth.9 The construction of the welfare state was one of the most significant social changes in Scandinavia. Although this began in the late nineteenth and early twentieth centuries, welfare legislation blossomed from the 1950s onwards.10 Sweden was the best- known with its “Swedish model” economy and “People’s Home” welfare politics. Their

9 Mary Hilson, The Nordic Model: Scandinavia since 1945 (London: Reaktion Books 2008), 59–75. 10 Derry 1979, supra n. 6 at 365–370; Hilson 2008, supra n. 9 at 91–106.

159 internationally admired combination of capitalism and socialism was created, and the social security system took care of every citizen.11 Norway too had a considerable welfare system by the 1960s,12 whereas the Danish system was not as extensive.13 A postwar goal of Scandinavian countries was to create an equal society in which differences of class and income would not be significant and where every citizen would be taken care of by the society. The governments sought to create stability and happiness in society through significant redistributive measures. Significant characteristics of Scandinavian politics in the twentieth century as well as powerful factors in the construction of the welfare state were political consensus, cooperation between opposing political parties, and the dominant social democratic ideology. Labor unions and the working class have been relatively strong throughout the century and have had a significant influence on the postwar politics.14 Especially in Norway and Sweden, labor market relations were peaceful until the late 1960s.15 De- spite the class divisions, the interaction between political consensus, the welfare state, and peaceful labor market relations brought stability to the society and decreased national tensions. The political and social trends were both influenced by and contributed to the fact that the moderate left dominated the Scandinavian political field from the inter-war era to the beginning of the 1970s.16 There was of course no absolute consensus or unanimity about politics, but the first quarter of a century after the war was nevertheless marked by a relatively high level of political and social stability, and Scandinavia thus avoided serious political tensions. Despite the political consensus, prosperity, and growth, the age of anxiety was coming. Criticism of society and liberation from the conservative values had begun in the 1950s, but the 1960s was the beginning of turbulent times in Scandinavia.17 The revolutionary left was revitalized in the late 1950s and early 1960s, and following the

11 Sven Olson, Sweden, 7–12, in Peter Flora (ed.), Growth to Limits: The Western European Welfare States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Berlin: Walter de Gruyter 1986), 1–116; Göran Hägg, Välfärdsåren: Svensk historia 1945─1986 (Stockholm: Wahlström & Widstrand 2005), 47–55, 153–156. “People’s Home” (folkhemmet) was originally a conservative concept but the leftists adopted it in the late 1930s. (Sørensen and Stråth 1997, supra n. 2 at 16.) 12 Stein Kuhnle, Norway, 122–125, in Flora (ed.) 1986, supra n.11 at 117–196. 13 Lars Nørby Johansen, Denmark, 300–304, in Flora (ed.) 1986, supra n. 11 at 293–381. 14 Henrik Stenius, The Good Life Is a Life of Conformity: The Impact of the Lutheran Tradition on Nor- dic Political Culture, 170, in Sørensen & Stråth (eds.) 1997, supra n. 2 at 161–171; Derry 1979, supra n. 6 at 367. 15 Hilson 2008, supra n. 9 at 71. 16 Derry 1979, supra n. 6 at 361–362; Hilson 2008, supra n. 9 at 40–46. Social Democratic dominance has been mostly a Swedish story. In Norway and Denmark Social Democrats have had to cooperate more with other political parties. As will be seen in the next chapter, Finland has differed from Scandinavia with respect to both politics and labor market relations. 17 Recent Scandinavian historiography has presented the radicalism of the late 1960s and the year 1968 as the zenith of the “long sixties” that covered the period of approximately 1958–1974. (Kjell Östberg, Swe- den and the Long ‘1968’: Break or Continuity? 33 Scandinavian Journal of History 339, 339–340 (2008); Anette Warring, Around 1968 ─ Danish Historiography, 33 Scandinavian Journal of History 353, 354 (2008); Laura Kolbe, From Memory to History: Year 1968 in Finland, 33 Scandinavian Journal of Histo- ry 366, 366 (2008).)

160 international trend, the old communist parties distanced themselves from Soviet socialism and created a new left agenda for socialism in a western democracy.18 The revolutionary communist left had never disappeared from the political map although it could not compete with the moderate left. As both international and domestic politics changed, the socialists had to renew in order to form a powerful alternative to the political establishment, and communism became thus a powerful political ideology in the 1960s and 1970s. Alongside the radicalization of the society and politics, critical and radical counter-cultures were formed, which questioned the traditional lifestyle and social mores.19 Furthermore, students became radicalized and more involved in politics. The 1960s in general was a time when everything was politicized, and students too perceived the problems at the university in terms of politics. They also struggled against the university hierarchies, administration, and curriculum, and formed critical study groups and movements for social action.20 Students were the major impetus in youth radicalism and in the development of the youth counter culture. Universities were places were young people could interact and acquire theoretical knowledge about social and scholarly criticism. It was therefore the students who were the most receptive to global controversies and who were also the most active participants in constructing the image of them. The Vietnam War was a major factor in the process of radicalization, and mass protests against the war occurred everywhere.21 Radicals were not simply concerned with the issues at home, but protested against the global capitalist system and oppression that the war represented in its most outrageous form. It was not like the other wars in history because it was seen to be a direct consequence of capitalism.22 Protests against the war were also targeted against the Scandinavian countries because of their support for the system, even if the official foreign policy often disapproved of the war. Sweden in particular was extremely critical of the war. Because of NATO membership,

18 Thomas Ekman Jørgensen, Transformations and Crises: The Left and the Nation in Denmark and Swe- den, 1956–1980 (New York: Berghahn Books 2008), 32–51. Orthodox communism survived the crisis of the late 1950s but it was not very popular and therefore remained quite insignificant in national politics. 19 In general on the counter-cultures of the 1960s and 1970s in Scandinavia, see, e.g., Morten Bendix Andersen & Niklas Olsen (eds.), 1968: Dengang og nu (København: Museum Tusculanums Forlag 2004); Tor Egil Førland & Trine Rogg Korsvik (eds.), 1968: Opprør og motkultur på norsk (Oslo: Pax forlag 2006); Kjell Östberg, 1968 när allting var i rörelse: Sextiotalsradikaliseringen och de sociala rörelserna (Stockholm: Prisma 2002). 20 Sven-Olof Josefsson, Året var 1968: Universitetskris och studentrevolt i Stockholm och Lund (Göte- borg: Avhandlingar från Historiska institutionen i Göteborg 1996), 124–130, 135–137, 142–144, 186– 189, 213–216; Steven L.B. Jensen & Thomas Ekman Jørgensen, Studenteroprøret i Danmark, 101:2 His- torisk tidsskrift 435–469 (2001). 21 Vietnam protests in Scandinavia are dealt with in Kim Salomon, Rebeller i takt med tiden: FNL- rörelsen och 60-talets politiska ritualer (Stockholm: Rabén Prisma 1996); Johs. Nordentoft & Søren H. Rasmussen, Kampagnen mod Atomvåben og Vietnambevægelsen 1960–1972 (Odense: Odense Universi- tetsforlag 1991); James Godbolt, Den norske vietnambevegelsen (Oslo: Unipub forlag 2010). 22 Jørgensen 2008, supra n. 18 at 89, 92.

161 the situation in Norway and Denmark was different. Nonetheless, they too were ambas- sadors of peace and adopted a critical attitude on the war.23 The radicalism of the 1960s was in any event a rebellion against the traditional values, norms, and the authorities. Radical counter culture was born out of the frustration with the bourgeois society, and the cold war nuclear threat and balance of terror, combined with student dissatisfaction within the universities, which was exacerbated by the explosion of the student population.24 The youth rebellion that culminated in 1968 was a global phenomenon adapted to national circumstances.25 The student revolts of 1968 were thus not as dramatic in Scandinavia as they were, for example, in France, West Germany, and the United States. In addition, the national governments were more supportive and understanding toward the restless students.26 Although the rebellion was the same at a basic level, theoretical stresses and underpinnings varied. Communism became popular among the radicals even if Soviet communism was not supported. In Denmark, radicalism was based more on Marxist thought than in Sweden and Norway, where the radicals adopted more Maoist approaches toward socialism.27 Although social radicalism followed more contemporary politics and the development of the youth counter culture, it needed a theoretical boost. Since capitalism was the public enemy number one, counter culture needed socialist ideology, and since the Soviet Union had shown its oppressive side, the radicals turned towards Cuba and China. The critical perception of the establishment was also seen in the rise of critical scholarship. Logical positivism was criticized and scholars became more interested in critical theories such as the Frankfurt School and Marxism. Scholarly traditions were criticized for being ideological and biased toward capitalism.28 Scholarship was also seeking theories to criticize the tradition and the hierarchies of academic scholarship,

23 James Godbolt, Chris Holmsted Larsen, Søren Hein Rasmussen, The Vietnam War: The Danish and Norwegian Experience 1964–1975, 33 Scandinavian Journal of History 395–416 (2008). 24 See, e.g., the analysis in Josefsson 1996, supra n. 20 at 25–33. 25 Terry H. Anderson, 1968: The American and Scandinavian Experiences, 33 Scandinavian Journal of History 491, 492–493 (2008). 26 Thomas Ekman Jørgensen, The Scandinavian 1968 in a European Perspective, 33 Scandinavian Journal of History 326, 327 (2008); Steven L.B. Jensen, “Youth Enacts Society and Somebody Makes a Coup”: The Danish Student Movement between Political and Lifestyle Radicalism, 237, in Axel Schildt and Detlef Siegfried (eds.), Between Marx and Coca-Cola: Youth Cultures in Changing European Societies, 1960─1980 (New York: Berghahn Books 2006), 224–238; Thomas Etzemüller, A Struggle for Radical Change? Swedish Students in the 1960s, 241–243, in Schildt and Siegfried (eds.) 2006, id. at 239–257. 27 For Swedish Maoism, see Anne Hedén, Röd stjärna över Sverige: Folkrepubliken Kina som resurs i den svenska vänsterradikaliseringen under 1960- och 1970-talen (Lund: Sekel 2008); Lars Åke Au- gustsson & Stig Hansen, Maoisterna: En historia berättad av några som var med (Stockholm: Ordfront förlag 1997). For Maoism in Norway, see Hans Petter Sjøli, Mao, min Mao: Historien om AKPs vekst og fall (Oslo: Cappelen 2005). For a comparative view of the new left in Sweden and Denmark, see Jørgen- sen 2008, supra n. 18. As will be noted in the following chapter, Finland differed from the Scandinavian countries in that orthodox Marxism was more influential. 28 Svante Nordin, Från Hägerström till Hedenius: Den moderna svenska filosofin (Lund: Doxa 1983), 198–201, 205–206; Josefsson 1996, supra n. 20 at 263–267; August Aronsson, Mellan kritisk vetenskap och revolutionär teori: Den marxistiska samhällsvetenskapens utformning i Häften för Kritiska Studier 1968–1971, C-uppsatts VT 2007, Institutionen för idé- och lärdomshistoria, Uppsala universitetet, 17–27 (available at http://uu.diva-portal.org/smash/record.jsf?searchId=1&pid=diva2:291946 (last visited 31.1.2013)).

162 and the new trends in critical theory and Marxism proved very productive in criticizing the academic tradition. As society was criticized for its apparent neutrality, traditional scholarship also came under the attack of critical perceptions. The turn of the 1970s was in many ways a continuance of the preceding decade, but it also meant transformation. The decade registered an economic downturn and a series of strikes which interrupted the otherwise peaceful labor market relations. Alt- hough student radicalism faded in the early 1970s, leftist ideology was still strong in politics and its focus turned away from global politics toward the working class at home. Hence, for example, new labor legislation was enacted during the 1970s.29 The economic crisis also sharpened the criticism of the welfare state by the political left. It had been already noted in the 1960s that the welfare state had been incapable of promoting equality and struggling against poverty, and the criticism intensified in the 1970s when several studies pointed out the persistent inequalities in Scandinavian societies.30 As a countervailing force to the continuance of the strong left, the neo-conservatism that had been on the rise since radicalism came to prominence as a powerful alternative to the social democratic hegemony.31 However, many of the issues that had begun in the late 1960s were promoted in the 1970s, and thus movements such as feminism and environmentalism became stronger.32 New problems emerged as the old conflict between labor and capital was slowly fading into the background, and problems such as economic efficiency and global integration on the one hand, and national authenticity on the other became more important. Membership of the EC was one of the most controversial topics of the early 1970s. Denmark joined the community, whereas Norway declined because of the powerful opposition that had struggled against EC membership since the 1960s. Sweden also decided to continue its policy of neutrality and did not apply for membership.33 The decade after the turbulent 1960s thus registered a continuation of old issues as well as a change. At the end of the 1970s, the left lost its momentum. Just like its rise, the fall of the new left was a consequence of many things. First, socialism as an ideology lost its appeal because of its global downfall. Second, the radical left could not find a new ideology and the new generation was not all that interested in the old radicalism; the young became more interested in career and property than in utopian ideology. Third, society changed and the traditional industrial working class that had been the core of socialist ideology both shrank and was not that interested in the socialist cause, and the new working class in the service sector did not identify with socialism.34 Be-

29 Jørgensen 2008, supra n. 18 at 132–136. 30 Hilson 2008, supra n. 9 at 106–107. 31 Claes Arvidsson, Ett annat land: Sverige och det långa 70-talet (Stockholm: Timbro 1999), 329–337, 349–356; Hägg 2005, supra n. 11 at 328–355; Berge Furre, Norsk historie 1914─2000: Industrisamfunnet ─ frå vokstervisse til framtidstvil (Oslo: Det Norske Samlaget 1999), 364–367; Ebbe Kühle, Danmarks historie i et globalt perspektiv (København: Gyldendal 2008), 311–313. 32 Östberg 2008, supra n. 17 at 345–346. 33 Furre 1999, supra n. 31 at 300–313; Kühle 2008, supra n. 31 at 296–314. 34 Jørgensen 2008, supra n. 18 at 165–178.

163 cause socialism lost its momentum both at global and national level, and because radicalism lost its momentum as the driving force of the young, the radical left vanished. Leftism, of course, continued but it was different in the 1980s.

2 The roots of critical legal scholarship, 1965–1973

2.1 Introduction

Scandinavian critical legal scholarship emerged in the late 1960s and reached its most critical phase in the 1970s with the rise of Marxist legal scholarship. In order to understand the history of the critical legal scholarship of the 1970s, it is important to situate it in the context of society and scholarship. Therefore, in this section I shall deal with the forms of alternative legal scholarship of the 1960s which gave a theoretical and methodological grounding to the more critical scholarship of the 1970s. Of particular importance is the rise of sociology of law in Scandinavia in the 1960s. As compared to the United States, there was then no firm tradition of sociology of law in Scandinavia. The rise of the discipline nevertheless performed the same functions as it did in the United States. Sociology of law of the 1960s thus provided a strong basis for the studies of the social functions and effects of law as well as the gap between law in books and law in action, and it also provided tools for criticism. The first steps toward sociological jurisprudence had been taken during the times of realism, in the late nineteenth and early twentieth centuries and in particular during the inter-war years, but it was only during the 1960s that influential and expansive tradition was formed around the discipline. As will be noted, like their American colleagues, Scandinavian legal scholars began to emphasize the importance of investigating the roles law actually played in social relationships. What the 1960s brought was a functional understanding of law as well as the realization of the very ambivalent character of law. The purpose of this section is to illuminate the changes in legal scholarship in the 1960s. I will first briefly examine the rise of the sociology of law in Scandinavia in the 1960s, paying particular attention to its critical aspects. Second, I will study the rise of the critical legal scholarship in the late 1960s. It is important to understand that the jurisprudential tradition of Scandinavia was quite realistic, and the critical scholars sought to stretch the tradition a few steps more in a realist and critical direction.

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2.2 The rise of sociology of law in Scandinavia

The rise of sociology of law was an international phenomenon after the Second World War. The dramatic changes in social and economic structures and the new currents in scholarship created new needs for legal research, and the scholars who were willing to take the challenge began to work on a scholarship that could explore the social functions of law.35 Scandinavian legal sociology rose in the wake of the international discipline.36 A general trend in legal research was to find alternative methods to the traditional doctrinal analysis in order to transcend the level of law and provide data on the actual function of law in society. In addition to the social and theoretical interests, the rise of the new scholarship also reflected the increased interest in cross-disciplinary research, and the increased international cooperation of scholars intensified the global aspect of the new field of study. The methodological transformation of Scandinavian legal scholarship in the 1960s followed international currents. An essential figure in the rise of the sociology of law was the Norwegian scholar Vilhelm Aubert, whose contribution to introducing the methods of sociology of law in Scandinavia was significant,37 and who has since been credited with laying the theoretical basis for the Scandinavian critical legal scholarship of the 1970s.38 Even if the credits for the theoretical basis may be a matter of debate, Aubert’s contribution to Scandinavian alternative legal scholarship was significant. He had begun his project on legal sociology in the late 1940s by calling for studies on the social origins of law, the causes of legal conflicts, and the social effects of law.39 In the 1950s, he participated in the first study of modern legal sociology in Scandinavia by co- authoring a study on the effects of the law on domestic help with Torstein Eckhoff and

35 Renato Treves, Introduction, 1–10, in Renato Treves and J.F. Glastra van Loon (eds.), Norms and Ac- tions: National Reports on Sociology of Law (The Hague: Martinus Nijhoff 1968), 1–20. 36 A good account of Scandinavian sociology of law between approximately 1947 and 1965 is Torstein Eckhoff, Sociology of Law in Scandinavia, in Treves and van Loon (eds.) 1968, supra n. 35 at 21–50. See also Britt-Mari Persson Blegvad, The Systematic Position of Sociology of Law in Current Scandinavian Research, in Britt-Mari Persson Blegvad (ed.), Contributions to the Sociology of Law (Copenhagen: Munksgaard 1966), 2–19. A brief but well-documented history of Norwegian sociology before the Sec- ond World War is Gunn Elisabeth Birkelund, The Genesis of Norwegian Sociology: A Story of Failures and Success (University of Oxford: Sociology Working Papers 2006–05) (available at http://www.sociology.ox.ac.uk/documents/working-papers/2006/2006-05.pdf (last visited 17.9.2012)). 37 Vilhelm Aubert (1922–1988) first studied law in Oslo and then sociology in New York, where he received the theoretical background to his scholarship. After returning to Norway, he became a very influential figure in the rising sociology of law in Scandinavia. A biographical essay on Aubert appears in http://snl.no/.nbl_biografi/Vilhelm_Aubert/utdypning (last visited 17.9.2012). There were other important figures with respect to sociology of law in Scandinavia in the 1950s besides Aubert, but he was the most significant. For a more detailed description of the early phases of sociology of law in Scandinavia see Persson Blegvad 1966, supra n. 36 at 2–13; Eckhoff 1968, supra n. 36 at 21–50. 38 Nils Kristian Sundby, Innledning, 12, in Anders Bratholm & Nils Kristian Sundby (eds.), Kritisk juss (Oslo: Pax forlag 1976), 9–17. 39 Vilhelm Aubert, Noen problemområder i rettssosiologien, TfR 1948, 432–465.

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Knut Sveri,40 and he later investigated the functions of criminal law in his PhD dissertation.41 The development of the methods of legal sociology in the 1950s thus directed the interest of legal scholars in the legal reality behind the rules. This can be seen as the beginning of the postwar Scandinavian alternative legal scholarship in which the focus went beyond doctrinal analysis. The roots of the criticism of law and legal scholarship lay in the sociological approach. In developing his methods, Aubert also began to criticize traditional legal scholarship for its alleged value-neutrality.42 According to Aubert, who by the mid- 1960s had already conducted a considerable number of sociological studies on law, law was a method of structuring the society and the problems between people within it, and, furthermore, law in action always differed from law in books. Therefore, he considered an analysis of the values and policies behind law essential for legal research because it helped in understanding legal reality and one’s perspective on it.43 The realistic approach to law made scholars aware of the fact that law in action did not directly correspond with the law in books. Although this notion had already been acknowledged, it took some time before Scandinavian legal scholars really began to contemplate the problem. The critical aspect in sociological jurisprudence emphasized that, first, law was a system of values and was therefore always promoting certain social interests, and second, formal equality produced factual inequality, and the latter was related to the former. Thus, sociology of law paved the way for the critical analysis of law. The interest in sociology of law grew considerably in the 1960s.44 The decade did not initiate such research but it meant that more and more scholars became interested in it and that its theories and methods were developed. The first Scandinavian conference on legal sociology arranged by the Scandinavian Association for Sociology of Law was held in December 1967 in Denmark. The purpose of the conference was to give a chance for sociology of law scholars to discuss its research and education.45 Sociologi- cal studies in law were the first studies in the 1960s to have a critical grasp of the rela-

40 Vilhelm Aubert, Torstein Eckhoff, Knut Sveri, En lov i søkelyset: Socialpsykologisk undersøkelse av den norske hushjelplov (Oslo: Akademisk forlag 1952). 41 Vilhelm Aubert, Om straffens sosiale funksjon (Oslo: Akademisk forlag 1954). 42 Vilhelm Aubert, Likhet og rett (Oslo: Pax forlag 1964), 8, 99. 43 Vilhelm Aubert, The Hidden Society (Totowa, New Jersey: The Bedminster Press 1965), 22, 59–60, 65–75, 83–115. Aubert had conducted studies on law and society from the fifties, and occasionally with some American scholars. Some of his essential studies are collected in The Hidden Society. The purpose of the book was to examine unfamiliar aspects of society, and in particular the effects and functions of law in society not explicitly observed by the people or scholars of traditional legal scholarship. Aubert’s studies covered a vast area of legal problems in society. 44 Per Stjernquist, Rättssociologi som examensämne i Sverige, JFT 1964, 318–335. Stjernquist lamented that sociology of law was not integrated into legal education as was done in the United States. He then explained the possible uses of sociology of law according to American examples. 45 Britt-Mari Persson Blegvad (ed.), Retssociologi i norden: Indlæg på den første nordiske konference i retssociologi 1967 (Handelshøjskolen i København: Institution for Organisation og Arbejdssociologi 1968), 3 [foreword]. The studies presented at the first conference were gathered in Persson Blegvad (ed.) 1968, id.

166 tionship between law and society.46 Thus, these studies were conducted in investigating such issues as the potential of legal interpretation and argumentation,47 the effects of legislation,48 legal behavior,49 and arbitration as a method of conflict-solving.50 The development in this regard was remarkably similar to that of the United States. Scandi- navian sociology of law can be seen as law and society scholarship that focused on the actual social functions and effects of law. Its scholars were interested in critically examining the reality of law in order to reveal problems and consider reforms. It was a branch of scholarship which provided opportunities to apply alternative approaches, criticize law, participate in contemporary legal debates, and develop theories on law. Just like the American scholars of political jurisprudence, law and development, and law and society, the Scandinavian sociological legal scholars developed scholarship that tackled contemporary problems and provided explanations and propositions for reform. A scholar who reflected many of the aspects of this trend was Sten Edlund, who combined the sociological approaches with a somewhat more traditional legal research. In his treatise on the negotiation procedures in labor disputes, he criticized traditional legal scholarship for its narrow and normative perspective. He argued that since contractual relations were totalities in which individual and social factors were important, legal research should focus on the personalities of the judges and the behavior of the parties so that the significance of extra-legal factors could be taken into account.51 The critical mood was rising, as was seen in the dislike of the normative perspective of traditional legal scholarship, and the focus was moving to the law in action instead. The methodological basis of legal scholarship was expanding, and the sociological approach was becoming more popular. Besides the increased interest in sociology of law,52 the late 1960s also witnessed the publication of the first systematic efforts to bring out and expound its methodologies. In a textbook on sociology of law, Aubert explained that research on the social functions and effects of law were important because it affected people differently, and people had differing perceptions of it.53 One of the earliest notions in sociological studies on law had been that courts sometimes applied the same rules in varying ways de-

46 Aubert wrote that because of the heterogeneity of the research it would be better to talk about Law and Society than legal sociology, as had been done in the United States. (Vilhelm Aubert, Symposium rettssosiologi: Oppsummering, 18, in Persson Blegvad (ed.) 1968, supra n. 45 at 7–18.) 47 Per Olof Bolding, Samhällsvetenskapliga data, common sense och juridisk argumentation, in Persson Blegvad (ed.) 1968, supra n. 45 at 29–41. [Later referred to as Bolding 1968(a).] 48 Bernhard Gomard & Jan Hellner, Retssociologi og erstatningsret, in Persson Blegvad (ed.) 1968, supra n. 45 at 42–52. 49 Jaakko Uotila, Raimo Blom, Per Norseng, Allmänhetens inställningar till rättsväsendet, in Persson Blegvad (ed.) 1968, supra n. 45 at 53–66. 50 Per Olof Bolding, Britt-Mari Persson Blegvad, Ole Lando, Skiljeförfarande som konfliktlösning, in Persson Blegvad (ed.) 1968, supra n. 45 at 67–79. 51 Sten E:son Edlund, Tvisteförhandlingar på arbetsmarknaden: En rättslig studie av två riksavtal i till- lämpning (Stockholm: P.A. Nordstedt & Söners förlag 1967), 13–26. 52 Persson Blegvad (ed.) 1966, supra n. 36; Persson Blegvad (ed.) 1968, supra n. 45; Jette Møller Nielsen (ed.), Retssociologi i norden II: Indlæg på den tredie nordiske forskerkonference i retssociologi 1969 (Handelshøjskolen i København: Institution for Organisation og Arbejdssociologi 1970). 53 Vilhelm Aubert, Rettssosiologi (Oslo: Universitetsforlaget 1968), 11–15, 31–32, 57–67, 76–84.

167 pending on the case in hand.54 It was therefore an essential task of the legal sociologist to explore the factual inequalities which followed from the apparently equitable law. The notion concerning the gap between law in books and law in action was one of the tenets on which critical theory of law could be built once the theoretical basis was laid. A critical turn in sociology of law occurred at the beginning of the 1970s. In a Swedish revised edition of Aubert’s textbook that appeared four years after the original one, the methodology had become far more critical, to a certain extent even Marxist. In 1972, Aubert wrote about the Marxist theory on social class conflicts and their influences on law.55 This critical turn followed the social radicalism and the rise of the critical theories in academia. Sociology of law had noted the ambivalent nature of law and the differences between theory and practice, and by the early 1970s, the functional approach of sociological jurisprudence was moving towards a critical approach. Combined with the radicalization of society and theoretical reorientation of alternative legal scholarship, sociology of law turned from critical analysis to criticism of law. Aubert’s books on sociology of law were realistic insights into law, its place in society, and legal scholarship, including the distinction between law in books and law in action and focusing on the latter. There were critical perspectives on law but the law per se and the legal system as a whole were not criticized. Nevertheless, sociology of law directed the interest from legal rules toward legal reality and promoted a critical perspective that would not take law at face value. The road toward radical criticism of law was paved when this methodology was combined with a Marxist analysis of the origins and functions of law. As can be seen in the methodological turn, Marxism was becoming popular in the early 1970s, opening up new critical opportunities for legal research. The rise of sociology of law in Scandinavia reflected the same currents as it did in the United States. It was an outcome of the expansion of the methodological basis of legal scholarship and of the growing interest in social organization and planning through law. Furthermore, the increasing interest in the rights of the citizen was also considerable, since the postwar scholars wanted to analyze whether the law in fact did what it was supposed to do. In the pursuit of examining whether law can promote social good, the scholars had to focus on the law in action. Both in the United States and Scandinavia, scholars extended the methodologies and subjects of legal scholarship, and began to participate in the debates on contemporary concerns. The rise and development of legal sociology was an elementary factor in the development of critical legal scholarship, since it provided the methodological basis for critical approaches. Rune Slagstad has analyzed the continuity between realism, Scandi- navian realism, sociology of law, and post-realism in postwar Norway. He points out that sociology of law followed realism in the 1950s and early 1960s, but empiricism

54 Aubert 1964, supra n. 42 at 112–129. 55 Vilhelm Aubert, Rättssociologi (Stockholm: Bokförlaget Aldus/Bonniers 1972), 81–91, 95–97. Aubert did note, however, that economic relations do not completely explain law, being merely one part of it. (Id. at 89–91, 98.)

168 turned toward realism on the judiciary and law in the late 1960s and 1970s.56 These were the times of the birth of modern critical legal scholarship. The roots of the critical legal scholarship of the 1960s and the 1970s are a combination of the rise of the sociology of law in the 1950s, the inheritance of Scandinavian realism and the adoption of parts of American legal realism, the postwar tradition of critical scholarship that attacked scientific positivism, and the nascent social and academic dissatisfaction. In this very brief account of the rise of the sociology of law, I have tried to demonstrate the development of the sociological method. In the following sections, I shall point out the rise of the critical legal scholarship and its relation to the sociology of law.

2.3 Criticism of legal scholarship in the late 1960s and early 1970s

Besides sociology of law, the 1960s witnessed a revival of critical legal scholarship. Realism had attacked the metaphysical foundations of legal scholarship in the first half of the century. The interest in social studies of law, the rise of critical scholarship, and the increasing social dissatisfaction, however, contributed to the rise of a new kind of critical legal scholarship that would critically analyze the origins and functions of law. Unlike the realism of the 1930s, the “new realism” did not try to purge legal discourse of values and policies, but acknowledged their existence and then analyzed them openly. I will explore the rise of the critical legal scholarship that developed together with and, to a certain extent, emanated from the sociology of law of the 1960s. There was no strict legal formalism in Scandinavia in the 1960s because realism had left a legacy of pragmatic jurisprudence. Traditional jurisprudence was contested again in the 1950s, and theories were elaborated that would consider the goals and policies of law,57 but the mainstream legal scholarship was mostly normative. Nonetheless, many legal scholars realized the discretion in legal reasoning by the mid-1960s and were calling for a more flexible approach to it.58 Contemporary legal problems also raised other responses, such as a call for closer cooperation between legal scholarship and social sciences,59 and a semantic analysis of legal rules.60 Especially in Norway,

56 Rune Slagstad, Norwegian Legal Realism since 1945, 35 Scandinavian Studies in Law 215–233 (1991). 57 Björn Ahlander, Är juridiken en vetenskap? (Stockholm: Hugo Cebers Förlag 1950); Per Olof Ekelöf, Är den juridiska doktrinen en teknik eller en vetenskap? (Lund: C.W.K. Gleerup 1951). 58 Magnus Aarbakke, Harmonisering av rettskilder TfR 1966, 514–518; Johs. Andenæs, Høyesterett som politisk organ, Lov og rett 1965, 23; Aubert 1964, supra n. 42 at 113; Frede Castberg, Utviklingslinjer i den juridiska tenkning i Norge siden 1814, TfR 1964, 126–127; Frede Castberg, Menneskerettighetene, grunnloven og domstolene, TfR 1965, 392; Nils Herlitz, Politik i rättslivet, TfR 1966, 162–164; Aksel H. Hillestad, Rettens eksistens, TfR 1965, 156; Ole Lando, Domstolene og billighed: Nogle retssammenlignende betragtninger, SvJT 1967, 1, 4–6. 59 Kurt Grönfors, Företagarbegreppet i konkurrensbegränsningslagen, SvJT 1965, 81. 60 Per Olof Ekelöf, Semantik och juridik, SvJT 1966, 497–505.

169 legal scholars began to emphasize the importance of court practice as a legal source,61 which reflected the realistic tendencies of legal scholarship of the 1960s. Various factors affected the pragmatic grip on jurisprudence, but no critical paradigm prevailed. The mainstream jurisprudence acknowledged that legal reasoning was not completely logical or formalist, but the majority of scholars endorsed a more realistic standpoint simply in order to maintain the rationality of legal reasoning. There was a trend away from strict rule adherence and logical deduction, but there was no major drive toward political or value-oriented argumentation. The emphasis on realist arguments meant simply an urge to make legal reasoning correspond with contemporary problems while still keeping it rational, neutral, and unbiased. Despite the pragmatic trend in Scandinavian jurisprudence, more critical voices were also heard. In 1966, the Norwegian legal scholar Anders Bratholm argued that politics was everywhere in law, including legislation, adjudication, and scholarship. The relation between law and politics was thus to be critically analyzed, he continued, because social motives and their preferences had an impact on legal activity.62 Bratholm was inspired by the postwar sociology of law and the ongoing debates on the constitutional law in Norway.63 His article reflected the emerging critical view that since law and politics were inevitably connected, the political motives behind law were to be analyzed if one was to have an accurate image of law. By the mid-1960s, the critical mood was not yet mature but it was evidently there waiting for more influences and proponents to carry it further. A significant impetus for Scandinavian critical legal scholarship emerged in the most turbulent year, 1968, when a Swedish and a Norwegian scholar both published books with alternative methods and theories on law. These were Juridik och sam- hällsdebatt (Jurisprudence and Social Debate) by Per Olof Bolding64 and Grunnlovens grenser (The Limits of the Constitution) by Carl August Fleischer.65 Although these books were of quite different character, they both expounded an alternative theory of law that would be oriented toward contemporary social problems from a leftist perspec-

61 Tore Sandvik, Entreprennørrisikoen (Oslo 1966), 68; Arvid Frihagen, Villfarelse og ugyldighet i forvaltningsretten (Oslo 1966), 190. See Slagstad 1991, supra n. 56 at 227. 62 Anders Bratholm, Jus og politikk: Refleksjoner etter en diskusjon, Lov og rett 1966, 102–103, 106– 112, 114–117. 63 There was an intense debate on the Norwegian constitutional law in the mid-1960s, which will be analyzed in section 5 of this chapter. 64 Per Olof Bolding, Juridik och samhällsdebatt (Stockholm: Almqvist & Wiksell 1968). Bolding participated in the early studies on sociology of law and wrote the first book in Scandinavia with a systematic theory of critical legal scholarship. Otherwise his contribution to the critical scholarship was inconsidera- ble. 65 Carl August Fleischer, Grunnlovens grenser: For lovregulert fastsetting av erstatning ved ekspropriasjon, ─ særlig ved verdistigning som ikke skyldes grunneiers innsats (Oslo: Universitetsforlaget 1968). Fleischer was a lone wolf in Norwegian critical legal scholarship. He did not participate in the general projects and he was not a Marxist legal scholar. However, he contributed a vast amount of literature on realist legal reasoning and endorsed an alternative view of constitutional law. His literature will be dealt with in more detail in the section on constitutional law.

170 tive. They represented the first expressions of the new legal realism that was about to develop into critical legal scholarship. Per Olof Bolding, who in the late 1960s was a professor of procedural law at the University of Lund, had studied the law of evidence and arbitration during his early career and was by no means unaware of the problems of judicial decision-making in the late 1960s. In fact, he had participated in sociology of law, and argued in 1965 that both judicial decision-making and legal scholarship should pay more attention to the social facts of the case.66 In 1968, he took his critical arguments further and developed a social theory of law. Law, he claimed, always responded to particular social problems and therefore it was necessary to have knowledge of the society in order to understand the law. Furthermore, he argued, legal rules were simply an end to reasoning that could always be manipulated to reach one of many contradictory possibilities. Thus, to make judicial decision-making correspond with social reality, it had to be made both social and open. One had to discuss social problems and all the possible solutions, and legal rules should merely circumscribe those solutions.67 Bolding’s book was applied sociological jurisprudence with a critical perspective, and the argument that law and society were inevitably connected was taken to the extreme. Sociology of law had already paid attention to the association between society and judicial decision-making and legal reasoning, but now they were intertwined in a way that made it impossible to keep them separate. It is difficult to analyze Bolding’s influence because there was no detailed documentation in his book, but it obviously built on Scandinavian realism and the recent debates on social problems.68 Bolding was a post-realist, influenced by the rise of the sociology of law, and taking an active part in the contemporary discussions. His theory was sociological jurisprudence par excellence: since neither law nor legal scholarship was autonomous, sociological data should be integrated into them. His comprehensive criticism covered the whole area of law, endorsing a fundamental revamp of the tradition. Bolding’s theory attracted some attention that pointed out some controversial issues in legal thought. Legal theorist Stig Strömholm criticized Bolding’s theory for going too far. He argued that since the rule of law required a degree of formalism, Bolding’s theory led to arbitrary judicial decision-making.69 In addition to judicial decision-making, the problem of the relationship between sociology and legal scholarship also surfaced. Strömholm argued that legal scholarship was to be mostly normative, although sociology was useful to a certain extent, although least of all for adjudica-

66 Per Olof Bolding, Den felaktiga domen, SvJT 1965, 469, 475. 67 Bolding 1968, supra n. 64 at 18–27, 50–63, 70, 78–88. Bolding’s theory of argumentation was built on Bolding 1968(a), supra n. 47. See also the theory in English, Per Olof Bolding, Reliance on Authorities or Open Debate? Two Models of Legal Argumentation, 13 Scandinavian Studies in Law 59–71 (1969). 68 Bolding had participated in social debates in the 1960s. (See Bolding 1968, supra n. 64 at 121.) Other- wise the list of explanations in id. at 121–124 refers mostly to literature on Scandinavian realism, Swe- dish court cases, and newspaper articles. 69 Stig Strömholm, En märklig metodlära: Anteckningar till en nyutkommen bok, SvJT 1969, 660–661.

171 tion.70 Staffan Rylander replied to Strömholm by arguing that sociology helped to understand the nature of law better than traditional legal scholarship.71 The conflict between the traditional view that social sciences simply assisted legal scholarship, and the critical view that social sciences were elementary to it, concerned the nature of legal scholarship in the first place. Traditionalists wanted to maintain the autonomy of legal scholarship whereas the critical scholars sought to displace it with the integration of social sciences. By the early 1970s, the conflict had become more evident. The problem was also about the nature of adjudication. The critical mood that was appearing denied the possibility of formalism altogether. Although even the more conservative scholars such as Strömholm agreed that sociology could be of assistance to legal research in certain cases, they nonetheless wanted to maintain a minimum amount of formalism because that was needed lest law became arbitrary and biased. For the critical scholars, however, since law was already arbitrary and biased, the integration of sociology into legal scholarship would only make it more honest, critical, and realist. Here again the problem was differing perceptions about adjudication. Just as the Ameri- can scholars debating the neutral principles disagreed on the nature of judicial decision- making, the Swedish scholars disagreed on it while debating sociology of law. The problem was the same, but the Scandinavian scholars simply approached it from a different perspective. Judicial decision-making was indeed an important problem for legal scholars. The Norwegian Carl August Fleischer also developed a comprehensive alternative theory of judicial decision-making. Whereas Bolding had tackled every possible problem from legal education to adjudication, Fleischer concentrated on adjudication in constitutional problems, although his theory touched several aspects of law indirectly. According to him, to put it simply, constitutional interpretation and adjudication changed in the course of time, but indoctrination and education had stabilized them. Thus, whenever a problem regarding the constitution arose, one had to take into account all the relevant social issues that the problem concerned in order to devise an appropriate solution. The constitution was therefore a developing institution.72 It is important to note that this theory was targeted toward practical problems relating to the interpretation of the Norwegian Constitution in the 1960s.73 The purpose of the flexible interpretation was to guarantee the protection of social values over private property rights. Fleischer constructed a realist theory that would take account of social values and facts instead of sticking to the letter of the constitution and maintaining loyalty to the legal principles it seemed to protect on the face of it. He did not rely on con-

70 Stig Strömholm, Något om sociologiens betydelse för juridiken, SvJT 1970, 101, 105, 117–121. 71 Staffan Rylander, Strömholm och rättssociologin, SvJT 1970, 484–487. See Strömholm’s reply to Rylander, Stig Strömhom, Genmäle, SvJT 1970, 488–491. 72 Fleischer 1968, supra n. 65 at 21–57, 86–91, 152–177. 73 As will be seen later, there were intense debates concerning the interpretation of the constitution in Norway in the 1960s. One major problem concerned the natural areas surrounding Oslo, the capital city of Norway. The owners wanted to construct buildings but activists such as Fleischer thought that the area should be protected because of its environmental values.

172 temporary critical theories, however, constructing his theory on Norwegian constitutional scholarship and legal theory and seeking to point out their inconsistencies and inadequacies in modern society. His ideas obviously reflected the social ideology and optimism over the social planning of the time. Fleischer sought to facilitate constitutional interpretation that would have allowed the legislator to regulate society without being overly restricted by the constitutional standards which, he claimed, were mostly relics of an ancient society without perfect correspondence to contemporary times. It is good to keep in mind that the theory sought to modify the fundamental premises and principles of the legal system of Norway to respond to the values that the political left considered important in the 1960s. In spite of the political preferences, his theory indicated a flexible and realistic legal interpretation and reasoning in which social data was more important than the letter of the law. The problem of legal interpretation and its potential was becoming pressing by the early 1970s. Legal scholars generally realized that neither adjudication nor jurisprudence was formalist but both involved extra-legal material that was to be taken into account. Thus, scholars endorsed scientific analysis of values in law74 or supported legal scholarship with political goals.75 The fundamental point, however, was to maintain the rationality of law and legal scholarship, even though they were to be mixed with elements of values and politics. The Norwegian legal scholar Torstein Eckhoff, who strongly supported sociological analysis of law, argued that although extreme theories such as Bolding’s went too far in their claims, legal reasoning needed more flexibility.76 Jørgen Dalberg-Larsen, a Danish scholar who was also to become an eager proponent of sociological jurisprudence, wrote in 1969 that although there was no point in abandoning the traditional methods of legal scholarship, there was a need to consider the connection between theory and practice further and to use social science more in legal scholarship.77 Many legal scholars in the early 1970s argued for openness in legal reasoning so that judicial decision-making could respond to legal problems better.78 Agneta Charpen- tier, who participated in the Scandinavian cooperation in sociology of law, wrote that since various factors affected judicial decision-making, behavioral studies on the judges would be useful in analyzing the ways the judges responded to the social facts presented

74 Stig Jørgensen, Argumentation and Decision, 269–270, 284, in Festskrift til professor, dr. jur. & phil Alf Ross (København: Juristforbundets forlag 1969), 261–284. 75 Jan Hellner, Syften och uppgifter för rättsvetenskaplig forskning, 222–223, in Festskrift til Alf Ross 1969, supra n. 74 at 205–229. 76 Torstein Eckhoff, Bokanmeldelse [Juridik och samhällsdebatt], TfR 1969, 639–640. 77 Jørgen Dalberg-Larsen, Er der grundlag for en juridisk metodelære? Om forholdet mellem retsvidenskab, retspraksis og den juridiske metode, TfR 1969, 575–576, 582, 584, 598–603. 78 Harry Guldberg, Om brottspåföljder och samhällsskyddet, SvJT 1971, 170–174; Harry Guldberg, Om differentieringen inom kriminalvård, SvJT 1973, 242; Nils Herlitz, 1974 års regeringsform? Kommenta- rer till grundlagberedningens förslag, SvJT 1973, 242; Carl Martin Roos, Tvetydigheter i avtal, SvJT 1972, 626–627, 638.

173 in the cases.79 The changed social circumstances had given rise to new problems which required new methods in solving them, and the new theoretical interests provided new opportunities for legal research. Legal scholars had to contemplate how to make legal practice and theory more rational by modern standards. In this respect, realist and behavioral approaches were seen useful in explicating the nature of the law. The problem was thus not whether there was a need for social legal reasoning and use of the social sciences in legal research but to what extent and how it was to be achieved. The more traditional scholars wanted to maintain the autonomy of legal scholarship and the logical nature of legal reasoning as far as possible, whereas the more critical scholars wanted to integrate legal scholarship with social sciences and turn legal reasoning into applied sociology. The critical thought that was becoming more widespread in the early 1970s was influenced by this controversy, whereas the majority of the legal scholars balanced between the two extremes. For instance, Stig Jørgensen developed an analytical-hermeneutical theory of law throughout the early 1970s that would maintain the fundamental premises of traditional legal scholarship but modify them to include aspects of social science, values, and politics. According to him, law was not simply a system of rules but part of a wider context.80 A judicial decision was thus the outcome of an interpretation of legal rules and principles, affected by values and ideologies to a certain extent.81 This also applied to legal scholarship.82 Therefore, he argued, it was important to analyze the effects of extra-legal materials on legal language.83 Jørgensen was following many of the theoretical and philosophical currents of the time. His theory was not radically critical, but it denied the possibility of autonomous legal scholarship and reasoning. With the help of linguistic philosophy, sociology, and history, he sought to define a theory that could surpass the formalist language of legal rules and principles and analyze the reality behind them. It was normal at the time to point out the inaccuracies of legal language and to construct theories to criticize it. A frequent strategy in the early 1970s was to point out the problems of strict definitions and to emphasize interpretation. One important topic that was of interest to legal scholars was the concept of justice. This, like so many other scholarly problems of the time, emanated from the concept of justice defined by the Danish legal philosopher Alf Ross, who was considered to

79 Agneta Charpentier, Undersökningar av rättspersonal, 103–104, 109, in Møller Nielsen (ed.) 1970, supra n. 52 at 103–110. 80 Stig Jørgensen, Ret og samfund (København: Berlingske forlag 1970), 7–9, 20–25. 81 Stig Jørgensen, Norm og virkelighed, TfR 1970, 498–502; Jørgensen 1970, supra n. 80 at 90–102. 82 Stig Jørgensen, Grundtræk af de danske retskilders historie, TfR 1971, 201. 83 Stig Jørgensen, Hermeneutik og fortolkning, TfR 1973, 626, 632. Jørgensen himself labeled his theory analytical-hermeneutical. (Stig Jørgensen, Idealisme og realisme i retslæren, JFT 1976, 4.) Dalberg- Larsen writes that it is difficult to define Jørgensen’s theory because it has such a wide basis, but it nonetheless combines elements of philosophy, history, and sociology. (Jørgen Dalberg-Larsen, Dansk retsfilosofi: Udviklingslinjer og portrætter (København Jurist- og Økonomforbundets forlag 2006), 137.) The basis of his theory is to be found in Jørgensen 1970, supra n. 80, and the articles complement and define particular aspects of his theory. Nevertheless, the hermeneutical tradition combined philosophical elements with doctrinal analysis. There was also an influential tradition of analytical hermeneutics in Finnish legal scholarship of the 1970s, as will be seen later.

174 be the most influential legal theorist at that time. He was a Scandinavian realist whose later theory sought to draw sharp distinctions between law and morals on the one hand and legal scholarship and politics on the other. His willingness to expunge out unrealistic metaphysical considerations from law turned his theory into a form of positivism that did not please the critical scholars of the time.84 Ross’s theory was labeled the “ruling theory” in Scandinavian legal scholarship,85 so that those legal scholars who wanted to criticize the dominant paradigm of jurisprudence often chose Ross as their target. According to Ross, justice was not a natural, metaphysical concept. Nor was it a general political goal. Justice was always the practical application of a legal rule in an actual case.86 Aubert had criticized this conventionalist-positivist definition of justice in the mid-1960s by arguing that the positivist construction of justice excluded the possibility of analyzing justice scientifically. Therefore, wrote Aubert, justice had to be understood in terms of values and policies because it could then be placed under critical scientific scrutiny.87 The difference in perspective was already apparent in the 1960s. Traditional legal scholarship observed legal concepts in the context of legal rules and judicial decisions and sought to exclude the influence of values, ideologies, and policies from the analysis. The alternative, on the other hand, argued that the values, ideologies and policies were such fundamental parts of law that to ignore them distorted the image of law and excluded the possibility of scientific analysis. Writing in the 1960s and from

84 On Ross’s theory, see Alf Ross, Om ret og retfærdighed: En indførelse i den analytiske retsfilosofi (Nyt nordisk forlag Arnold Busck 1971) (1953). 85 Peter Blume, Kritik og forandring, Juristen 1974, 235; Anders Fogelklou, Materialistisk strukturförklar- ing eller viljans dialektik: Sovjetiska aspekter på den marxistiska rättsteorin, TfR 1973, 88; Preben Stuer Lauridsen, Studier i retspolitisk argumentation (København: Juristforbundets forlag 1974), 127; Nils Kristian Sundby, Naturrettslig legitimasjon for normativ kompetanse, TfR 1975, 344; Henrik Zahle, Kritik af en retsteori: Om Alf Ross’ opfattelse af retsvidenskaben, TfR 1974, 333–334. Labeled the “ruling legal theorist”, Ross became the target of the critical legal scholars of the 1960s and 1970s. As Dal- berg-Larsen writes, the period after the 1960s is characterized by a plurality of legal theories but these shared the criticism of Ross, albeit from different points of view. (Dalberg-Larsen 2006, supra n. 83 at 201–202.) Of course, Ross’s theory was first published in 1953 and was already criticized then. (Vilhelm Aubert, Begrepet “gjeldende rett”: Noen sosiologiske synspunkter i tilknytning til Alf Ross’ “Om ret og retfærdighed”, TfR 1954, 376–394.) Aubert criticized the way Ross constructed the concept of “the law in force” through studying court practice without however providing an adequate theory for including the personal biases of the judge in the analysis; his theory thus failed to be useful for reforming legal scholarship and to be of interest from a social scientific perspective. This was so because Ross wanted to maintain legal science as an autonomous science within the social sciences and because he was a devoted positivist. (Id. at 384–385, 388–390, 393.) The later criticism of Ross’s theory was also largely built on these premises. It is indeed an interesting question why it was particularly Ross who was criticized. Dalberg-Larsen writes that it is odd why so much effort went into criticizing a theory that was already somewhat outdated when it was first published. (Dalberg-Larsen 2006, supra n. 83 at 202.) It seems that criticism often needs a face, and it was Ross who was chosen probably because he was an influential and considerable figure in Scandinavian legal scholarship. The purpose of the criticism of Ross was probably to criticize traditional legal scholarship. It has to be remembered that, even if Ross’ theory did not represent the paradigm of law in every detail, it nonetheless was probably the closest expression of it. Realism had made its way into Scandinavian legal thinking, as has been noted, and there was a paradigm mixed with elements of traditional conceptualism and empirical realism. 86 Ross 1971, supra n. 84 at 365. 87 Vilhelm Aubert, Rettferdighet i sosiologisk belysning, Tidsskrift for samfunnsforskning 1966, 101, 104–117.

175 the position of a sociologist, Aubert was promoting his concept of sociological jurisprudence. In any event, he had set the path for the criticism of the realist exclusion of values from legal analysis. Scholars of the 1970s continued this tradition and brought some new aspects to the problem. The notions of the concept of justice reflected the transformation of legal scholarship. Karen Dykjær Hansen analyzed the various concepts of justice, concluding that respect for humanity was the only constant principle. Otherwise the precise definition depended on argumentation, which, however, ought to be done on the basis of legal principles.88 Although her starting-point was the legal system and legal principles, she stressed the ambiguity of legal argumentation and the impossibility of incontrovertible definitions. Torstein Eckhoff examined the concept of justice from a very different point of view. According to him, the concept of justice was ambiguous because it depended on the perspective, and therefore he studied people’s conceptions of justice and their impact and effects on the strategic behavior and market transactions.89 Eckhoff’s post- realist conception of law and justice was empirical and included values and their practical presentation in legal reality. Moreover, on the basis of his study, Eckhoff defined justice as a form of equal distribution found in between the free pursuance of selfish interests on the one hand and collective ownership and an absolutely equal distribution on the other.90 Eckhoff was thus trying to find a balance between competing social ideologies. Despite the differing approaches, both theories emphasized the impossibility of defining justice in accurate and definite terms and encouraged diversified argumentation in defining it. Values and open argumentation were becoming essential for legal scholarship. The rise of the new realism that emphasized an open discourse on values in law was making its way in other areas of jurisprudence too. An important topic was the doctrine of legal sources and the concept of valid law in this respect. Here again, Torstein Eckhoff was innovative. In his doctrine on legal sources, Eckhoff distanced himself from the traditional distinction between finding the sources and revealing their meaning. He also emphasized the possibility of interpretation and the influence of personal bias in judicial decision-making, arguing further that realistic considerations and values were a part of legal reasoning.91 It has been noted that this was the first time that considerations on circumstances were explicitly analyzed as a part of a legal doctrine, although Eckhoff was not constructing a radically deviant or new theory, but simply placing these considerations

88 Karen Dykjær Hansen, Kan retfærdighed defineres? TfR 1970, 67–98. 89 Torstein Eckhoff, Rettferdighet ved utveksling og fordeling av verdier (Oslo: Universitetsforlaget 1971), esp. at 12–25, 37–52, 58–118, 124–128. An English and slightly modified version is Torstein Eckhoff, Justice: Its determinants in social interaction (Rotterdam: Rotterdam University Press 1974). Unique to Eckhoff’s study was its method. (Mogens Blegvad, Litteratur [Rettferdighet], Tidskrift for samfunnsforskning 1972, 371–373.) 90 Eckhoff 1971, supra n. 89 at 375–389. 91 Torstein Eckhoff, Rettskildelære (Oslo: Johan Grundt Tanum forlag 1971), 13, 16–21, 28–29, 85–108, 312–329.

176 among legal sources.92 Eckhoff’s theory on the sources of law represented the new realism that was coming to the fore of Scandinavian legal scholarship, but it was not radical. His purpose was to point out the widely acknowledged fact that judicial decision- making contained various elements and was not logical formalism. It is important, however, that scholars were at pains to develop a theory that would suit the modern needs and particularly the relationship between law, values, and politics. A point of origin of critical legal scholarship was the dissonance between alternative and critical perspectives on law. Karen Hansen also distanced herself from Ross’s theory and constructed a theory of valid law that combined traditional legal scholarship with contemporary legal practice. According to her, law was those rules that were applied in legal practice, but it was also important to analyze legal arguments because they raised the ideological elements within law.93 She thought that her alternative method was useful in analyzing the relation between law and politics.94 Hansen’s was a post- realist theory, aiming to bridge the gap between theory and practice, and replacing Ross’s theory with one that could be used with respect to values and politics. It thus reflects the broader change in legal scholarship, although it was not a critical theory. The gulf between critical scholars and those who wanted to modify the tradition without changing its fundamental basis was apparent. Critical scholars were displeased with the loyalty to the tradition displayed by the alternative legal scholarship. Preben Stuer Lauridsen had already criticized Hansen’s theory for its ambiguity,95 but the problem also concerned a more fundamental point. Hansen had noted that there was an element of indoctrination in legal scholarship which could, however, be overcome since contradictory arguments were logically possible.96 A young Marxist legal scholar, Peter Blume, was more critical of the indoctrination involved in legal education and argued that Hansen’s notion was self-contradictory.97 The problem between an alternative and a critical view was that the former sought to change certain premises of the tradition while maintaining it as far as possible. A critical view, on the other hand, held that the basis of traditional scholarship was fundamentally false. The unwillingness of the majority of the profession to recognize the fundamental flaw was a major factor for the critical legal scholars in the development of their arguments. The late 1960s and early 1970s was a transformative period for Scandinavian jurisprudence. The realism of the early twentieth century had left a legacy of pragmatism, and by the early 1970s, new realism had emerged and established a strong position. The new realism held that since law had to be understood in practical circumstances, normative legal scholarship was not meaningful, and unlike its predecessor, the new realism, rather than being anti-metaphysical, accepted the position of values and politics in law

92 Slagstad 1991, supra n, 56 at 229–230. 93 Karen Dykjær Hansen, Gældende ret og juridisk metode, Juristen 1971, 253–263. 94 Karen Dykjær Hansen, En REPLIK vedrørende spørgsmålet om gældende ret og juridiske metode, Juristen 1971, 494–498. 95 Preben Stuer Lauridsen, Retsbegrebet, Juristen 1971, 367–374. 96 Hansen 1971, supra n. 93 at 263. 97 Peter Blume, Det juridiske studium: Kritik og analyse, Juristen 1972, 170, n. 50.

177 and sought to analyze them openly. The Scandinavian debates on legal reasoning strongly resembled the American debates on neutral principles, the question being about the nature and extent of the impact of extra-legal factors on judicial decision-making. Both in the United States, as mentioned in the previous chapter, and in Scandinavia, as will soon be seen, the disagreement on legal reasoning intensified the dynamics of change and eventually led to the emergence of a radical critique of law. In a theoretical sense, the critical thought developed from the combination of the methods of sociology of law and new realism on the one hand, and from the conflict between the traditional faith in the rationality of legal scholarship and the radical argument on the political nature of law on the other.

2.4 Alternative legal scholarship in the early 1970s

Realistic insights and alternative theories of law had made their way into legal scholarship by the beginning of the 1970s. The alternative branch that had continued the legacy of legal realism had grown during the postwar decades, and now it was coming to be a part of the mainstream. As Eckhoff and Jørgensen noted, by now at least it was generally accepted that a legal decision was not based simply on rules but also on various considerations on facts and values.98 A central concern of the legal scholars of the early 1970s was to develop theories to make both adjudication and legal scholarship meet the needs of the new society. The rise of the new realism, social turbulence, and the emergence of the critical academic tradition drove the development of critical legal scholarship. The rising interest in the critical analysis of the reality of law was evident in the increasing attraction of sociological jurisprudence. The interest in sociology of law continued to increase in the early 1970s. A collection of both classic and contemporary articles was translated into Swedish,99 and a Swedish anthology on the fundamental aspects of sociology of law was published as an introduction to the discipline.100 In addition, Dalberg-Larsen wrote a systematic and comprehensive textbook on the topic.101 Socio- logical studies of law were important, as the Norwegian legal sociologist Thomas Mathiesen wrote, since they helped to examine law as an outcome of social power and as a tool of masking and legitimizing social power relations.102 Sociological studies concerned, for example, the possibility of changing social behavior through legal regu-

98 Eckhoff 1971, supra n. 91 at 195; Jørgensen 1970, supra n. 80 at 97. 99 Vilhelm Aubert (ed.), Lag, samhälle, individ (Stockholm: Rabén & Sjögren 1972). The collection was originally published in English in 1969. 100 Stig Edling & Göran Elwin (eds.), Rättssociologi: Om lag, konflikt och behov (Stockholm: Wahlström & Widstrand 1973). 101 Jørgen Dalberg-Larsen, Retssociologi: Problemstillinger og teorier (København: Akademisk forlag 1973). 102 Thomas Mathiesen, Inledning, 9–10, in Edling & Elwin (eds.) 1973, supra n. 100 at 9–14.

178 lation, the effects of the administration, and the functions and effects of legal aid.103 Because of the critical potential, legal sociology was often used as a means for critical, or even Marxist, insights into law. The nature of the alternative scholarship was thus acquiring a more critical tone. The new movements were not uncritically accepted. One of the defenders of a more traditional legal scholarship was Jes Bjarup, who wrote that sociological legal scholars had exaggerated the role of the person of the judge and values in judicial decision-making because, he argued, judges mostly sincerely followed legal materials while deciding cases. He also criticized the recent attempts to change the methodology of legal scholarship to include values because, according to him, the values that had been included in law were “legal values”.104 Bjarup criticized the new realism both for its premises on the theory on legal reasoning and its claims for integrating legal scholarship into social science. He thus represented the most normative branch of traditional legal scholarship by emphasizing the fact that legal scholarship should focus on the “ought” in law. The traditionalist view held that legal phenomena could be studied from a purely legal perspective without mixing any personal elements into the analysis but still keeping it rational and objective. Despite the theoretical details, it was the claims for rationality and objectivity of the traditional legal scholarship which the critical scholars attacked. In 1974, Henrik Zahle, a young post-graduate student on procedural law, published his lengthy criticism of Ross’s legal theory, attacking the strict separation between legal scholarship and politics in particular. According to him, the fact that values and policies were excluded from legal scholarship did not mean that they had no effect on it. On the contrary, they always had effect on research but the traditional scholarship simply denied this fact. Thus, Zahle argued, without considering the effects of the economy, politics, and ideology, one could not obtain a realistic picture of the law.105 The rising critical legal scholarship abhorred the sharp division between law and politics. Zahle’s analysis was already pointing in the critical direction where all kinds of social values would be included in legal studies in order to make both law and legal scholarship correspond with the social

103 See the articles in Edling & Elwing (eds.) 1973, supra n. 100. 104 Jes Bjarup, Retskildelære, TfR 1974, 145–174. Bjarup’s article was basically a critical review of Eck- hoff’s doctrine on legal sources (Eckhoff 1971, supra n. 91), but he also presented his theory on the issue. Bjarup was positivist in the Kelsenian sense, endorsing a highly normative legal scholarship that sought to minimize the position of extra-legal factors. Bjarup also criticized Ross’s doctrine on legal sources. See Ross’s reply, Alf Ross, Kort bemærkning om retskildelære, TfR 1974, 329–332. 105 Zahle 1974, supra n. 85 at 335–336, 344, 362–36, 399–402. Zahle has since argued that Marxist and critical legal scholarship attacked not so much the traditional legal scholarship as Ross’s conception of it. (Henrik Zahle, 1968 og derefter: Kritisk retsteori på Københavns Universitet: Et tilbageblik med spejl, 67, in Kjell Å. Modéer & Martin Sunnqvist (eds.), 1968 och därefter: De kritiska rättsteoriernas betydelse för nordisk rättsvetenskap (Købehavns Universitet: Museum Tusculanums Forlag 2010), 61–85). In 1974, however, he seems to have related the problems of Ross’s theory to traditional legal scholarship, arguing that education has been based on Ross’s theory for two decades. (Zahle 1974, id. at 333–334.) It thus seems that, especially in Denmark, Ross was chosen as the representative of traditional legal scholarship despite whether he actually represented it or not, and the criticism concerned both the tradition and Ross’s conception of it.

179 reality. The greater social dissatisfaction and knowledge of contemporary critical theories induced the critical scholars to contemplate the fundamental premises of legal scholarship. In the first half of the 1970s, many legal scholars were commenting on the tradition in order to change it. The concept of legal rules became an interesting subject of analysis since the definition of a rule was of importance to legal sociology.106 In 1974, the Norwegian Nils Kristian Sundby107 tackled the problem of legal rules in his study Om normer (On Norms). His purpose was to construct a new definition of legal rules so that cross-disciplinary research on them as well as an analysis of the values within the rules would be possible. He encouraged a structural examination of the rules because, he argued, the values within the rules were more significant than personal values regarding them.108 Sundby’s purpose was to redefine the concept of norm to correspond with the contemporary society and law. He had earlier endorsed thorough analyses of the legal system and the combination of legal philosophy and sociology in order to study the critical potential of legal scholarship and the political connections of law.109 Thus, his study related to the larger project of redefining the system in order to construct theoretical tools for criticism. The most significant aspect of Sundby’s theory will be dealt with later, but here it is important to note a few methodological details in his book. His theory was not radical, his obvious intention being to contribute to the new realistic legal thought and practice which would promote social equality and make more flexible and open argumentation and interpretation possible. At the beginning of the book, Sundby wrote that he was politically socialist and sympathized with the recent critical legal scholarship, but he noted that radical criticism and Marxism were often theoretically untenable.110 Here Sundby was representing the critical premise of openly stating the political biases of the scholar, yet he nonetheless distanced himself from the radical and Marxist tradition. Another scholar who developed alternative theories from within the system but from a far more traditional and conservative point of view was the Danish Preben Stuer Lauridsen. He elaborated a theory in which political argumentation would be included in legal scholarship so that there would be no need either to maintain strict divisions between legal and political argumentation or to make law and legal scholarship into politics. He defined scientific standards for political arguments which then would be tested in a collegial forum of jurists.111 His theory was a counter-reaction to the critical

106 On the importance of the definition of the legal rule in legal sociology, see, e.g., Dalberg-Larsen 1973, supra n. 101 at 21. 107 Nils Kristian Sundby was born in 1942 and acquired his doctorate in jurisprudence in 1974 with his treatise on legal rules. He became a significant participant in critical legal scholarship, although he was not a Marxist scholar. He died in 1978. 108 Nils Kristian Sundby, Om normer (Oslo: Universitetsforlaget 1974), 1–3. 109 Nils Kristian Sundby, Benthams betydning for vår tids rettstenkning, TfR 1973, 714–715. 110 Sundby 1974, supra n. 108 at 9–15. See also id. at 135–136. 111 Lauridsen 1974, supra n. 85. See esp. at 52–56, 68–77, 92–103, 363–368, 470–498. Lauridsen criticized Ross for the fact that his complete exclusion of political arguments led to behavioralism. (Id. at 142–182, 234–235, 248–249, 309–311.) Lauridsen was originally a follower of Ross but distanced him-

180 claims of integrating legal scholarship into social science, but he nevertheless sought to fit political arguments into legal argumentation. The idea was that social science could not provide any more realistic data than traditional legal scholarship could. His purpose was to make political arguments “scientific”, meaning that they could be included in legal scholarship without compromising the nature of the scholarship. According to the critics, however, his theory stabilized the argumentation.112 Obvious in the revisions of legal scholarship was the attempt to come to terms with the relationship between politics and scholarship. In general, the trend of the early 1970s was to analyze the problematic relationship between academic research and politics.113 Thus, legal scholars of the 1970s were concerned with the problem of the relationship between law and politics and provided various theories to overcome it. This was also the purpose of both Sundby’s and Lauridsen’s treatises.114 There were various efforts to distance theories from the realist tradition and bring values and politics into the ambit of legal scholarship in one way or another. Some scholars were more favora- bly disposed toward social science and the critical potential of scholarship, whereas others tried to maintain the autonomy of legal scholarship while still bringing it closer to politics and social realities. Even conservative scholars noted the problems legal scholarship faced in the changed atmosphere. Changes in society and scholarship had caused various new problems regarding both theory and practice that legal scholars had to deal with. Stig Strömholm, a Swedish legal scholar with relatively conservative views, also noted the need for political research within legal scholarship but did not want to turn jurisprudence into political activity,115 and, furthermore, he criticized the recent arguments for more flexible judicial decision-making for being too ambiguous.116 Thus, in 1975, asking whether jurisprudence had a future, he acknowledged that legal scholarship was about to change but argued that traditional scholarship had to be preserved as far as possible because it was beneficial for the legal profession.117 The changed circumstances forced many legal scholars to reconsider the boundaries between law and politics and between jurisprudence and social science, but the traditional element of the profession did not want to change its basis. By the mid-1970s, the tradition of Scandinavian legal scholarship had been opened up to various alternatives. In a quite similar way to the United States, alternative legal scholarship developed from sociological and cross-disciplinary jurisprudence into alternative theories of law. self in the 1970s. Because Lauridsen remained loyal to tradition while criticizing it, Ross called him “a tradition-loyal image crusher” (en traditionstro billedstormer) (Dalberg-Larsen 2006, supra n. 83 at 90– 92). 112 Helge J. Thue, Litteratur [Studier i retspolitisk argumentation], TfR 1978, 469–470. 113 See, e.g., Sverker Gustavsson, Debatten om forskningen och samhället: En studie i några teoretiska inlägg under 1900-talet (Stockholm: Almquist & Wiksell 1971). 114 For a review of the books, see Stig Strömholm, Litteratur [Om normer & Studier i retspolitisk argumentation], SvJT 1975, 282–291. 115 Stig Strömholm, Rättsvetenskap och rättspolitik, SvJT 1973, 657–675. 116 Stig Strömholm, Vad är sakens natur? JFT 1974, 221–233. 117 Stig Strömholm, Har juridiken en framtid? SvJT 1975, 604.

181

Scandinavian legal scholars also became frustrated with the pursuit of rationality and the neutrality of the traditional legal thought, as well as its insistence on the autonomy of legal scholarship. Furthermore, both in the United States and Scandinavia, there were scholars who sought to update the tradition without however abandoning it, and there were scholars who were readier for more fundamental changes. The dynamic between the alternative and the critical perspective was crucial for the development of critical legal scholarship. According to Dalberg-Larsen, Danish legal philosophy from the 1960s onwards was characterized by criticism of logical positivism, increasing interest in legal sociology, and the rise of Marxist legal scholarship. Moreover, after 1969 there was not only a conflict between proponents and opponents of Ross but also between the various types of opponents of Ross.118 The same applies to Scandinavia at large, because the same trends were dominant, albeit with differences in methods and emphasis. The time from the sixties onwards was indeed a time of methodological pluralism in legal scholarship and many of the new methodologies criticized the traditional positivism in one way or another. Alternative legal scholarship was not a uniform or coherent movement, but the traditional legal scholarship, or its image, was attacked with varying intensity from different angles. The new theories took a stand on the same problems from various perspectives and provided various answers depending on the interests and perspectives of the scholars. A common theme, however, was to provide a theory that would account for the relationship between law and society. As the alternative scholarship turned towards critical scholarship, criticism of the tradition became the unifying theme. The criticism of traditional legal thinking became most obvious in Marxist legal scholarship. There were clear connections between realistic, sociological legal scholarship and flexible legal argumentation on the one hand and Marxist legal scholarship on the other. Marxist legal scholarship applied many of the ideas and methods of sociological jurisprudence but set them in the context of Marxist theory and was thus much more critical of the prevailing legal system. It shared the same basis as the various forms of alternative legal scholarship but it took criticism to a more radical level. The rise of Marxist legal scholarship thus represents the culmination of the critical legal scholarship in Scandinavia.

3 The origins of Scandinavian Marxist legal scholarship, 1972–1976

The 1960s was a crucial period for the development of Marxist legal scholarship in Scandinavia. As we saw, the interest in the sociology of law increased the studies on the relationship between law and society, and legal scholarship in general began to pay more attention to the relationship between law and politics. Alternative legal scholar-

118 Dalberg-Larsen 2006, supra n. 83 at 87–89.

182 ship rebutted both the traditional distinction between legal scholarship and social science and the realist distinction between law and metaphysics. The new realism that developed in the late 1960s sought to place values and ideologies under open scrutiny and also to bring law and politics into common consideration. The changes in social, academic, and scholarly life were also important for the development of critical legal thought. The sixties in general was a time of the rise of the new left and social criticism, which meant that traditional social values were attacked and questioned and social institutions were placed under critical examination. In the late 1960s, cultural radicals criticized social and cultural authorities and students rebelled against the university hierarchies. In addition, the critical thought according to which both society and scholarship were ideologically structured began to rise. As the interest in Marxism spread, together with the interest in cross-disciplinary research, critical scholars put the problem of the class society and class oppression on the table from various perspectives.119 The problem of values and objectivity was becoming more and more pressing, for instance, in social and economic scholarship,120 and Marxism and critical notions began to have their influence on sociology.121 Critical theory on the prerequisites of scholarship began to interest scholars who opined that traditional scholarship was bound up with the social ideologies. During the 1960s, a critical bloc arose within the universities, attacking the authority of the traditional scholarship. The critical scholars often adopted Marxism as their theoretical basis, which then became a critical method. As critical scholarship grew, scholars became more interested in the critical theory of the Frankfurt School and its potential for scholarship.122 The rise in critical scholarship initiated a conflict over the place of values in and freedom of academic scholarship.123 The juxtaposition only encouraged the critical scholars who continued to challenge the tradition, and critical theory was both analyzed124 and introduced to the academic public.125 Scholars became more interested in the recent currents of critical thought and theory and began to work on theories in various disciplines which could help to transcend the dominant paradigm. Critical theories sought to demonstrate that

119 Andreas Murray (ed.), Det svenska klassamhället (Halmstad: Bokförlaget Prisma 1967); Carl-Gunnar Janson, (ed.), Det differentierade samhället: Studier i social stratifiering (Stockholm: Bokförlaget Prisma 1968). 120 Gunnar Myrdal, Values in Social Theory: A Selection of Essays on Methodology (London: Routledge & Kegan Paul 1958); Gunnar Myrdal, Objektivitetsproblemet i samhällsforskningen (Stockholm: Rabén & Sjögren 1969). 121 Joachim Israel, Alienation: Från Marx till modern sociologi: en macrosociologisk studie (Stockholm: Rabén & Sjögren 1968); Joachim Israel, Välfärdssamhället – och därefter? (Stockholm: Bokförlaget Al- dus/Bonniers 1969). 122 Gerard Radnitzky, Contemporary Schools of Metascience (Göteborg: Akademiförlaget 1968). 123 Aant Elzinga & Gerard Radnitzky, Anglosaxisk kontra kontinental vetenskapssyn, HfKS 1–2/1968, 37–47, 68; Aant Elzinga & Gerard Radnitzky, Debatt om intolerans och forskningens frihet, HfKS 1– 2/1968, 57–59; Anders Wedberg, Om Radnitzkys avhandling, HfKS 3/1969, 42–43. 124 Björn Eriksson, Kritisk samhällsvetenskap ─ uppgifter och möjligheter, HfKS 5/1969, 8–13, 50. 125 Ragnvald Kalleberg (ed.), Kritisk teori: En antologi over Frankfurter-skolen i filosofi og sosiologi (Oslo: Gyldendal norsk forlag 1970).

183 since traditional scholarship was ideology-bound, its observations were more or less flawed. Thus the critics sought to establish a basis of scholarship that could comprehend the nature of reality better. Academic life changed too, and critical study circles and journals for critical scholarship were established. One of the outcomes was Häften för kritiska studier (Journal for Critical Studies) which was founded in Sweden in 1968 as a forum for critical scholarship. It was argued that there was a need for such a journal because the tradition was dominated by conservative bourgeois ideology.126 The left in general became more radical in the late 1960s,127 which was also a time of the elaboration of the critical theory in Scandinavian scholarship.128 Analytical philosophy was considered as dominant in the academy, but the critical theories in the 1960s began to drive a wedge into the tradition. Critical scholars struggled for academic emancipation even to the extent that it was argued that one could make a career of being “critical”.129 By the early 1970s, there was general academic strife between positive and critical scholarship, between traditional and Marxist scholarship.130 There was a group of young scholars who had grown up in the radical atmosphere of the 1960s and adopted critical thought from the emerging schools of critical and Marxist scholarship. These young scholars were interested in an analysis of the relationship between ideology and scholarship. Thus, as the alternative legal scholarship had gained a strong foothold in the legal academia, and when critical and Marxist scholarship had risen to a prominent place, legal scholarship was also about to take a new turn. As we saw, there was a Marxist turn in sociology of law during the change of the decade. The same turn, which began to be seen during the 1970s, occurred within jurisprudence. Critical legal scholarship was an extreme manifestation of the scholarly change in the 1960s and 1970s, representing a new cultural image of the legal academia. The interest in Marxist legal theory had expanded enormously since the beginning of the 1960s. A new wave of Marxist legal theory began in Germany, France and Italy, and spread from there to the Nordic Countries.131 Marxism entered legal scholarship first through radical social thought, sociological jurisprudence, and critical theory, and later it took on a unique tone as scholars became more familiar with Marxist literature. As noted in the previous chapter, Marxist scholarship in general arose in the United States in the 1960s and achieved an established position in the 1970s, but it did not

126 Ledare, HfKS 1–2/1968, 1–2. 127 Martin Wiklund, I det modernas landskap: Historisk orientering och kritiska berättelser om det moderna Sverige mellan 1960 och 1990 (Stockholm: Brutus Östlings bokförlag Symposion 2006), 184. 128 Aronsson 2007, supra n. 28 at 17–46. 129 Göran Therborn, Från revolutionär teori till akademisk metafysik: Till den kritiska teorins historia I, HfKS 1/1969, 14. 130 Ingvar Johansson, Ragnvald Kalleberg, Sven-Eric Liedman, Positivism, marxism, kritisk teori: Rikt- ningar inom modern vetenskapsfilosofi (Stockholm: P.A. Nordstedt & Söners förlag 1972). The conflict was not, of course, simply between traditional and Marxist scholarship, there being various forms of scholarship. Neither the Marxist nor the non-Marxist side was uniform. 131 Göran Elwin & Dag Victor (eds.), Rätt och marxism: Introduktion och material (Stockholm: Kontra- kurs 1978), 163.

184 flourish in legal thought as such. American critical legal thought was close to Marxism, but it built on various theories and philosophies. In the Nordic Countries, the situation was somewhat different. In Finland especially, Marxist-inspired critical legal literature began to emerge in the late 1960s and acquired a wide basis by the early 1970s, as will be seen in the following chapter. In Scandinavia, Marxist legal scholarship began in the early 1970s as a response to the general scholarly trends. In general, critical legal scholarship was a radicalization of the alternative legal scholarship. Legal sociology had had a Marxist tone at least since the 1960s. Vilhelm Aubert had noted in the early 1960s that the idea of formal equality often masked the actual class inequalities in society,132 and after the Marxist turn he argued that despite the apparent neutrality, legislation sometimes functioned as a tool of class domination.133 Aubert, however, had always distanced himself from orthodox Marxism. Thus, Marxist sociologists criticized him for his superficial analysis of the legitimizing function of law in the class conflict and for neglecting an analysis of the relationship between economic, political, ideological, and legal structures.134 The Marxist turn also meant a need for a more radical and critical theory to analyze the social power structures. With respect to law, the turn meant a move from empirical studies on the gap between law in books and law in action towards a structural and ideological analysis, and from reconsiderations of particular topics to a fundamental analysis. In 1973, the young Swedish legal scholars Göran Elwin and Dag Victor sketched a systematic theory for Marxist legal scholarship. Their theory was mostly based on the literature on Marx and Marx-related matters, but they also cited the recent alternative legal literature and critical scholarship, as well as Finnish Marxist legal scholarship.135 According to Elwin and Victor, since law was mostly an ideological superstructure, it was important to examine both its origins and functions. Law emanated from society and was a tool in the social power structure, always serving particular material social interests. The study of these interests was the material side of the law. However, law had also an autonomous inner structure which had an impact on society, particularly in reproducing ideology. The dialectical aspect of legal scholarship should therefore investigate the ideological functions of law.136 Finnish scholars criticized the article for its generality and for the lack of a historical aspect,137 to which the Swedish replied that their theory was mostly a sketch for the future.138 The debate shows that Marxism was in its early phase but its basis was being elaborated. Its two most important aspects were the examination of the material origins and purposes of law and its ideological functions

132 Aubert 1964, supra n. 42 at 70–71. 133 Aubert 1972, supra n. 55 at 82–91. 134 Lena Lindgren & Åke Norborg, Aubert och rättssociologin, HfKS 4/1973, 50–51. 135 Finnish, albeit Swedish-speaking legal scholar Lars D. Eriksson had developed Marxist legal theory a year earlier in the same journal, and Elwin and Victor commented upon his theory. Finland will be discussed in the next chapter. 136 Göran Elwin och Dag Victor, Rättsteori och dialektisk materialism, HfKS 4/1973, 31–35. 137 Lars D. Eriksson och Antero Ignatius, Marxistisk rättsteori och eklektisk, HfKS 1/1974, 48–50. 138 Göran Elwin & Dag Victor, Replik om rättsteori, HfKS 6/1974, 57–58.

185 in society. Scholars of course disagreed on details but the common theoretical basis was laid. Marxist legal scholarship criticized the very basis of law and traditional legal scholarship. Law schools were the places where, according to critical scholars, the indoctrination into the tradition began, and thus the critique began from there. Bolding had already criticized legal education in the late 1960s for the fact that it reproduced the tradition, and had called for a practical and sociological education.139 The Marxists, however, stressed the ideological aspects of indoctrination. Young Danish law student and future Marxist legal scholar, Peter Blume, argued that contemporary legal education was uncritical toward the ideological aspects of law, and he called for alternative views on the legal system in education so that the students would realize the possibility of alternatives.140 The concern of the critical scholars was that the dominant paradigm141 excluded any real alternatives and preserved the status quo, and that the possibility of alternative views should therefore be included in the education. As was the case in the American critical legal scholarship, as noted in the previous chapter, the talk of paradigms and legal consciousness entered the Scandinavian legal discourse through this critique. In their ideas on indoctrination, critical scholars began to pay attention to the fundamental consciousness behind law. The fundamental criticism and the ideas on ideology caused conflicts between critical and alternative legal scholars. Stig Jørgensen criticized Marxist scholarship for its simplistic behaviorism and misunderstanding of the role of law in society. According to him, one did not have to be Marxist to analyze the relationship between law and society.142 In addition, he argued, Marxism often turned legal scholarship into ideology.143 Blume replied that the traditional legal scholarship simply denied the ideological content of legal practice and scholarship, whereas Marxism tried to examine it. Ideology was everywhere and it was pointless to neglect it.144 The split between the critical and the more traditional view concerned the nature of law and legal scholarship. According to the former, ideology was inherent in law, whereas it played only a part according to the latter. The critical legal scholars worked on these fundamental problems in the early 1970s when the Marxist legal theory was being developed. This was also the period in

139 Bolding 1968, supra n. 64 at 116–118. There was a reform of the legal education in Sweden in the 1960s. 140 Blume 1972, supra n. 97 at 167–169. 141 Marxist legal scholars acknowledged that modern jurisprudence was depicted by methodological pluralism and there was no one dominant school. However, they argued that this did not mean that there was no dominant paradigm common to the various schools within the tradition, and that this paradigm denied the possibility of Marxist legal thought. (Elwin & Victor 1973, supra n. 136 at 24.) This is basically what Duncan Kennedy meant by “legal consciousness” (see the previous chapter). Critical legal scholars thus did not argue that there was only one form of “traditional legal scholarship”. They meant that the various schools and movements within the tradition shared a common basis. 142 Stig Jørgensen, Ret og samfundsdebat: Kroniksamling (København Juristforbundets forlag 1972), 50– 53. 143 Stig Jørgensen, Ideologi og Retsvidenskab, Juristen 1973, 186–191. 144 Peter Blume, Et par retsfilosofiske bemærkninger, Juristen 1973, 318–319, 321.

186 which Denmark was becoming the center of Scandinavian Marxism. Young critical legal scholars at the University of Aarhus, the Critical Front, worked on a publication in which the basic themes and theories of Marxist legal theory were laid down. The scholars thought that education was the beginning of the indoctrination into the tradition that protected the prevailing social structures. Even the alternative forms of traditional scholarship missed the ideological functions of law, and thus were unable to criticize the tradition. Therefore, critical scholarship had to work toward a radical alteration in the education, and reveal the origins of the tradition in order to analyze the relation between its specific concepts, methods, and functions and the contemporary society.145 A Marxist establishment was formed within the universities at the late 1960s, and in the early 1970s it was ready to attack the tradition and criticize the dominant legal thinking. For the critical scholars, it was the basis of the traditional legal thought that was to be analyzed and criticized, and this fundamental division marked the split between the radical and the traditional blocs. Marxist legal scholars argued that since every aspect of law was affected by values, one had to be either critical or traditionalist, and the critical function was to inquire the impact of ideology in law.146 The critics of Marxist scholars argued that their arguments were tautological and lacked a viable basis,147 but the Marx- ists often shrugged this argument off by defining it as political.148 The problem was in the different points of view the various scholars had. Indeed, where the Marxists saw ideology the traditionalists saw law, where the Marxists saw politics the traditionalists saw scholarship, and where the Marxists saw indoctrination the traditionalists saw education. These differences in perspective meant that the dialogue between the opposing schools was often difficult if not impossible. Marxism was often self-assured in its criticism of the tradition, but that followed its theoretical premises; it was critical by definition. In any event, the Marxist endeavor continued, and the criticism specified the controversial points. Blume argued that scholarship had to be rid of all the “word- fetishism” and concentrate on the historical and social origins of legal rules, institutions, and arguments. In order to make a difference, nothing was to be taken at face value.149 Ole Krarup argued that since legal concepts were often ambiguous and protected hidden values, they had to be analyzed in their historical and social context as related to class

145 Juristen og samfundet (Udgivet af Fagkritisk Front ved Aarhus Universitet på Forlaget MODTRYK 1973), 8–24, 47–48, 78–80, 84–104. The book was an outcome of a course on critical jurisprudence held at the university in 1973. The authors included Lillian Bonde, Lars Helms, Hans Kjellund, Ebbe Madsen, Flemming Meyer, Claus Valeur Nissen, Anna Marie Poulsen, Nicolai von Schilling, Lis Sejr, and Torben Wanscher. Ole Krarup wrote an afterword. Of these, only Wanscher and Krarup seem to have been active participants in the critical legal scholarship in the 1970s, at least on the basis of the published literature. In any event, Marxism as an academic enterprise was a much broader phenomenon than the published literature reveals. 146 Flemming Deleuran, Om kritiske jurister (og studenter) og kritisk retsvidenskab, Juristen 1973, 414, 419, 421–422. 147 Bent Feldung, Kritik af et såkaldt kritisk studium, Juristen 1974, 182–183. 148 Flemming Deleuran, Svar på en politisk kritik, Juristen 1974, 185–186. 149 Blume 1974, supra n. 85 at 234–237.

187 conflict.150 Alf Ross criticized Krarup for doing simply abstract sociology,151 and Krarup saw Ross’s criticism as an effort to maintain the division between legal scholarship and sociology.152 Ross was naturally upset at the materialist conception since he had done much to purify legal concepts of metaphysics and now the critical scholars were maneuvering the metaphysics back into them. The critical scholars, however, argued that since there were no legal concepts without material interests, legal analysis had to consider social interests and values. The major difference between the traditional, realist-based legal scholarship and critical legal scholarship was the mode of analysis of legal rules. Anders Fogelklou, for example, criticized the semantic-logical analysis of law, endorsing a dialectical- materialist analysis instead.153 Critical scholars opined that logical analysis of legal rules without an analysis of their social aspects was not adequate in sorting out the true meaning of law. Here they also faced the problem of Soviet legal theory and legal practice. Fogleklou represented a middle way by arguing that Soviet legal theory provided useful lessons for Scandinavian legal scholarship, but was not suitable because of its apologetic nature.154 Finnish scholars were more optimistic about the potential of Soviet legal theory,155 while scholars who were skeptical about socialist law noted that it was often seriously reactionary.156 In criticizing the institutions of western society and deriving inspiration from a theory that was strongly related to socialist societies, the critical scholars also had to take a stand on the socialist practice while focusing on the theoretical aspects of Marxism. Critical scholars were often theoretical and did not specify any practical implications of their work. Scandinavian Marxist legal scholars, however, were not uncritically inclined toward socialism. Their main objective was to explore the basis of western legal institutions theoretically in order to construct opportunities for criticism and change. At the heart of the criticism was the notion that in its persistent efforts to maintain a division between law and values, traditional jurisprudence missed the point that law always promoted the values that were built into it. Whereas the more traditional scholars criticized Marxist scholars for tackling problems relating rather to sociology or history than law,157 the critical scholars argued that it was precisely these problems that were at the roots of the legal problems. Erling Albrechtsen argued that the traditional “pure jurisprudence” missed the point that material wealth meant more freedom and power in legal terms. Thus, he declared, since lawyers were often close to the rich, the

150 Ole Krarup, Om den offentlige rets grundbegreber, Juristen 1974, 349, 354, 359–364. 151 Alf Ross, Brev til Ole Krarup, Juristen 1975, 1–2. 152 Ole Krarup, Om materialistisk retsteori, Juristen 1975, 3–5. 153 Fogelklou 1973, supra n. 85 at 88–89. 154 Id. at 102. 155 Raimo Blom, Litteratur, TfR 1975, 282. 156 Andreas Ådahl, Civilrättens regleringsområde: Gränsdragningsproblematiken i olika rättssystem ─ ett öst-västperspektiv, TfR 1975, 272. 157 Lauridsen 1974, supra n. 85 at 45–48.

188 legal profession contributed to the unequal distribution of rights and legal power.158 Critical thought was moving toward the notion that law protected some values while neglecting other values, which could have just as well been protected. Hence, the interest was focused not simply on legal matters but also on the context of the origins of law. In the endeavor to reveal the true nature of law, the theoretical basis and practical usability of the Marxist theory had to be specified. Torben Wanscher analyzed the various forms of Marxism and neo-Marxism to explicate them in detail.159 Lisbet Roep- storff, on the other hand, examined the relations between various levels of society and the capitalist mode of production. According to her, the economy created the preconditions for all the other levels, which were only relatively autonomous and which had a feedback effect on the economy. Nevertheless, since economic values dominated modern society, justice and humanity were reflections of the economy.160 The Marxist argument that the contemporary conception of justice and the system of values emanated from the economic basis of society and thus protected the interests of the rich reflected the radical leftist thought of the 1960s. The left opposed capitalism and struggled for a society that was not controlled by business interests. The Marxist legal scholars brought these ideas to legal theory and attacked the legal establishment. The notion that values were not simply metaphysics but had a material basis in society followed from the epistemological turn and Marxist thinking. This was also one of the most essential aspects of critical legal scholarship. The critical scholars constructed a link between the social order and the legal profession, and worked to unravel it. Specific aspects of the relationship between law and class struggle were brought out especially in studies concerning labor law. Marxist history had been done in Scan- dinavia before the 1970s,161 but the critical legal scholars brought new elements to it and enhanced the research. In 1971, Gösta Hultén argued that labor law had long been used to curb worker activity and protect the interests of the economy. Furthermore, he claimed, despite recent developments, labor law was still a tool to protect the employers.162 The study was Marxist scholarship par excellence without however explicitly emphasizing this. The central elements were, nonetheless, present in it; the contemporary situation was explained in the light of historical dialectical materialism with an emphasis on the class struggle. The central message of the book was that law was determined in the last resort by the interests of big money, and details of superficial regulation did not alter its basis. Per Eklund also conducted a thorough analysis of labor law from the Marxist standpoint. On methodology, he noted that it was futile to argue that law promoted ma-

158 Erling H. Albrechtsen, Kritikk av den rene jus I–II, Tidsskrift for samfunnsforskning 1974, 5–7, 14– 15, 19–20, 87–90, 95–97, 101–102, 107. 159 Torben Wanscher, Materialistisk retsteori: Et forsøg på en introduktion, Politica 1/1974, 1–32. 160 Lisbet Roepstorff, Det juridiske systems dominans i den kapitalistiske ideologi, Kurasje 10/1074, 79– 84, 89–101. 161 See Per Nyström, Historieskrivningens dilemma och andra studier (Stockholm: Kontrakurs 1974). 162 Gösta Hultén, Arbetsrätt och klassherravälde: Kring strejklagarnas historia (Stockholm: Rabén & Sjö- gren 1971), 219–226, 238.

189 terialist interests, because understanding the particular interests behind the law was more useful. Laws did not necessarily promote particular interests directly, but sometimes were compromises between conflicting interests. Nevertheless, he concluded, labor law had mostly been used to support conservative values and the interests of the employers, and the legal system often legitimized an otherwise unequal situation.163 Eklund was a typical neo-Marxist who stressed the relative autonomy of law and did not want to succumb to economic determinism. He represented the structuralist branch of Marxism, explaining law in terms of historical-dialectical materialism while acknowledging the structures of society. The structural approach was typical for Scandinavian Marxism in the 1970s, because it helped to avoid being labeled either as orthodox or determinist. Eklund’s study also exposed the difficulties in Marxist history. The Swedish legal historian Stig Jägerskiöld argued that Eklund had drawn abstract generalizations without adequate historical evidence, and had exaggerated the role of the class conflict in the history of the law.164 Eklund replied that Jägerskiöld’s criticism was largely political and defended his methods by arguing that an analysis of the economic position of the law-makers was useful because it helped to overcome the otherwise assumed social consensus.165 Wanscher, another Marxist legal scholar, also criticized Jägerskiöld for his bourgeois ideology in the interpretation of historical data, but he also criticized Eklund for his narrow perspective. According to Wanscher, Eklund had reduced class conflict to parliamentary struggles over legislation and thus neglected several other important aspects, such as the judiciary.166 As there was disagreement on the contemporary law, there was also disagreement about the history of law. Marxist scholars interpreted historical material in the light of the class conflict, arriving at conclusions that did not convince more traditional legal historians. In addition, as Marxist scholarship increased, the scholars themselves had to define the meaning of Marxism more precisely, which was by no means a simple task. Nevertheless, Marxist legal scholarship was about to mature. By the mid-1970s, there was a large group of legal scholars who distanced themselves from the tradition, criticized contemporary legal institutions, and sought to develop a radical alternative theory to the traditional jurisprudence. The time was now ripe for a symposium on Marxist legal scholarship in the pages of the Journal for Legal Scholarship (Tidsskrift for rettsvitenskap). The purpose of the symposium was to introduce Marxist legal scholarship and the problems with which it dealt to a wider audience. The potential of Marxist theory in jurisprudence had increased in the few years that had elapsed since the beginning of the decade, and it was applied in various contexts. The Finnish scholar Lars D. Eriksson criticized the concept of legitimacy which,

163 Per Eklund, Rätten i klasskampen: En studie i rättens funktioner (Stockholm: Tidens förlag 1974), 6– 10, 28–31, 347–354, 365–366, 369–374. 164 Stig Jägerskiöld, Anmälan [Rätten i klasskampen], SvJT 1975, 212–216. 165 Per Eklund, Samhällsklasserna och rätten, SvJT 1975, 689, 701, 706, 710–711. 166 Torben Wanscher, “Rätten i klasskampen” i klassekampen, Retfærd 1/1976, 177, 180–184.

190 according to him, was reactionary. He argued that instead of an abstract and general concept, legitimacy should be considered in the context of particular society so that it could be analyzed and criticized accordingly.167 Eriksson’s theory was an application of Marxist theory to a particular topic, encouraging a more particular analysis of the concept of legitimacy. That was a concept the critical scholars thought was also uncritically accepted in the tradition, so that they wanted to reconsider its meaning in contemporary society. The reconsideration of traditional concepts was a major feature of critical legal scholarship, as was noted in the symposium. In the general analyses, critical theory was contrasted with traditional theory to point out the weaknesses of the latter. Krarup continued his criticism on the impersonal and neutral way traditional legal scholarship examined legal phenomena,168 and Wanscher was concerned about the way traditional legal history reproduced the dominant ideology, arguing that Marxist theory could bring a more authentic perspective to studies of legal history.169 The common argument of the critical scholars was that the traditional scholarship could not grasp the true nature of legal phenomena without setting them against their background and surroundings. Marxist scholarship made the materialist aspects of law into the primary concern of research. Specific analyses brought the general theory to a more concrete level, while still stressing the materialist aspect. The general argument, nonetheless, was that the seem- ingly neutral law hid some less noble intentions than the apparent ones and Marxist theory helped to purge the law of its ideological excrescences and to reveal its actual purposes. Thus, Henrik Bang argued that social law was mostly meant to secure peace and order and to shape people in a market-fashion,170 Ulla Paabøl wrote that the formal equality of labor law in fact supported the interests of those who owned the means of production,171 and Henrik Zahle linked the evolution of the law of evidence to the development of capitalism.172 The purpose of the analysis was always to go beyond the level of legal rules and concepts and to link them to something more practical. For the Marxist scholars, materialism was the most essential element of legal scholarship. It also distinguished their theory from all the other forms of critical theory because it helped them to analyze the relation between the base and the superstructure on the one hand, and the authentic nature of the legal phenomena on the other. Accord- ing to Wanscher, for example, this kind of critical inquiry was necessary to emancipate law from its contemporary chains.173 The critical scholars argued that the contemporary law originated in the material interests of the ruling social class, namely, the economically powerful class. By relating law, as well as conceptions of right and justice, to eco-

167 Lars D. Eriksson, För et dynamiskt legitimitetsbegrepp, TfR 1975, 145–157. 168 Ole Krarup, Marxistisk retsteori contra borgerlig jura, TfR 1975, 158–168. 169 Torben Wanscher, Teori og retshistorie: Til kritikken af retshistorien, TfR 1975, 169–192. 170 Henrik Bang, Bidrag til en socialretlig relationsanalyse, TfR 1975, 193–227. 171 Ulla Paabøl, Arbejdsretlig regulering ─ i historisk materialistisk belysning, TfR 1975, 228–247. 172 Henrik Zahle, Bevisretlige stadier ─ en skitse, TfR 1975, 248–254. 173 Torben Wanscher, Tendenser i nyere marxistisk retsteori, Kurasje 12/1975, 129–153.

191 nomic interests, they aimed to reconsider the old concepts and to contribute to a real change. The materialist emphasis of Marxist legal scholarship was, of course, contrary to the view of traditional legal scholars, and Marxism also had its critics. Jes Bjarup argued that Marxist legal scholarship was mostly abstract, ambiguous generalization, and that while it may have been correct on some issues, it was false regarding the big picture. Thus, Marxism was mostly ideology and its theoretical premises should be in- quired into critically.174 Frede Castberg, a proponent of natural law theory, criticized the Marxists for reducing law to an ideological superstructure and over-emphasizing the class conflict because thus they missed several other important aspects. He nonetheless gave credit to critical legal scholarship for bringing up many important topics.175 Stig Jørgensen, a legal philosopher, noted that a major problem of Marxism was that it was often political or ideological and, moreover, it was very difficult to verify.176 Non- Marxist legal scholars were not convinced of the materialist and ideological emphasizes, because they had a different conception of law. Problems were often matters of interpretation, and the Marxists could not prove their point beyond doubt. Marxism was in any event moving rapidly to the center of legal scholarship. Alt- hough Vilhelm Aubert was never an orthodox Marxist, he had always been theoretically close to it,177 and in his work in the 1970s he drew even closer. In his noteworthy general analysis of the social functions of law, he wrote that law was always in a close relation to the social class conflict and could never abolish it completely. Thus, he argued, class conflict had an important role in legal analysis even if it alone could not explain every legal phenomenon.178 Although Marxism was criticized for offering a one-sided image of law in society,179 it had become a major player in legal scholarship. Beginning as an interest of study groups of critical young scholars in the universities in the late 1960s and early 1970s, it had become a legal theory among others. By the mid-1970s, Marxist scholarship had evolved from a critical concept into a school of jurisprudence, and the legal scholars within the movement wanted to have more cooperation. Thus, the first Scandinavian journal for Marxist legal scholarship, Retfærd, was founded in 1976. Critical legal scholars thought that Marxist analyses of society had become more frequent given the need for a struggle against capitalism and for socialism, and thus Marxist legal scholarship was also essential. The purpose of Ret- færd was to be a forum for Marxist legal scholarship, which meant a combination of theory and political practice. There was a need for such a law review since no such

174 Jes Bjarup, Til kritik af marxistisk retsteori, TfR 1975, 169–176, 181–189, 194–195. It seems fair to say, as Dalberg-Larsen has done, that even if Bjarup was a fierce critic of Marxism he was nevertheless willing to negotiate with it. (Dalberg-Larsen 2006, supra n. 83 at 139–140.) 175 Frede Castberg, Forsvar for jussen, Lov og rett 1977, 28–29, 32–33. 176 Jørgensen 1976, supra n. 83 at 28. 177 According to Jon Elster, it was difficult to call Aubert a Marxist even in the broadest sense of the word. (Jon Elster, Statens rolle i marxistisk teori: En vitenskapsteoretisk analyse, Tidsskrift for Sam- funnsforskning 1977, 113.) Elster’s argument is very critical and thus somewhat overstated. 178 Vilhelm Aubert, Rettens sosiale funksjon (Oslo: Universitetsforlaget 1976), 7–11, 308–312. 179 Fridtjof Frank Gundersen, Rätten som klassekamp, Lov og rett 1977, 121–130.

192 journal yet existed in Scandinavia.180 Retfærd was initially a Danish invention because of the lack of a Danish organization of progressive jurists, but the core of the journal was to be constructed around Nordic cooperation.181 The purpose of the journal was stated on the opening page of the first issue as follows:

RETFÆRD shall work as a forum for the promotion of theoretical and strategic analysis of legal matters on a broad Marxist foundation of social studies. This entails a strategic union of theoretical work and political practice. We aim at a legal science which can contribute to the working class’ fight against capitalism and in favour of socialism.182

The foundation of Retfærd demonstrates both the relationship between politics and theory in Scandinavian Marxist legal scholarship and its expansion in the 1970s, as well as relating the Scandinavian Marxist legal scholarship to the international context. As Perry Anderson argues, Western Marxism was detached from political agitation during the interwar years, and “it was to speak its own enciphered language, at an increasingly remote distance from the class whose fortunes it formally sought to serve or articulate.” After the war, Marxism moved more towards philosophy and became interested in various new fields, but the 1960s and 1970s reopened the possibility of the combination of Marxist theory and political practice.183 During its foundation there were controversies as to whether the journal should be more scholarly or be politically oriented.184 In the end, however, the open political tone of the journal was clear, though not surprising, since critical legal scholarship was openly political. Furthermore, by the mid-1970s critical legal scholarship had become more widespread and had more proponents, and, finally, there was a forum for critical legal scholars to disseminate their ideas to readers who shared the same interests. The first issue of Retfærd was dedicated to labor law, which suited the purpose well. First there was a Danish translation of the German legal scholar Thomas Blanke’s general Marxist theory on labor law,185 and then the Scandinavian scholars considered

180 Introduktion, Retfærd 1/1976, 5–6. 181 Leder, Retfærd 1/1976, 8–11. The first editors of the journal were Henrik Bang, Peter Blume, Flem- ming Deleuran, Lars Helms, Hans Kjellund, Claus Valeur Nissen, Helmuth Schledermann, Torben Wans- cher and Henrik Zahle. The contact people were Dag Victor in Sweden, Albert Holand in Norway, and Niklas Bruun in Finland. 182 Introduktion, Retfærd 1/1976, 5. Translation from: http://www.retfaerd.org/content/journals-history (last visited 14.12.2012). The original reads: “RETFÆRD skal virke som et forum til fremme af teoreti- ske og strategiske analyser af retsforhold på et bredt marxistisk samfundsvidenskabeligt grundlag. Dette indebærer en strategisk forening af teoretisk arbejde og politisk praksis. Der tilstræbes en retsvidenskab, der kan indgå i arbejderklassens kamp mod kapitalismen og for socialisme.” 183 Perry Anderson, Considerations on Western Marxism (London: Verso 1979), 49–74, 95–96, quotation at 32. 184 Niklas Bruun, the Finnish contact person of Retfærd during the time of its foundation, provided this information for me in a conversation on July 2nd 2013. 185 Thomas Blanke, Problemer i arbejdsretsteori, Retfærd 1/1976, 12–29.

193 more specific issues, noting, for instance, that labor law was at the heart of the class conflict that was a central element in Marxist theory and thus was unique.186 There were many strikes in the 1970s and legal scholars were particularly interested in them because there was much talk about a general crisis of labor in modern society.187 Marxist legal scholars thus investigated the use of non-union workers to break strikes,188 and the use of police force in taming them.189 Scandinavian critical legal scholarship thus jumped on the European bandwagon in examining legal problems from a Marxist perspective and having a law journal for the purpose.190 Labor law was a natural starting- point because of the importance of labor to Marxist theory and the leftist cause. The purpose was to deal with contemporary social and legal problems from a perspective that could be helpful in clarifying the problems from the critical point of view and perhaps even provide alternative solutions. Despite the foundation of Retfærd and the expansion of Marxist studies of law, Marxism in general was beginning to fade after the mid-1970s. As an academic phenomenon, it interested the critical scholars in the late 1970s.191 They noted that once Marxism had risen to prominence in the late 1960s, the disunited scholarship of the 1970s had led to its withering and the distance between academic research and political activity had increased. The political deactivation and theoretical impoverishment had reduced Marxism to an alternative theory among many others.192 They argued further that it was politics and academic repression that had suffocated Marxism theoretically and with respect to practice.193 By the late 1970s, there was a Marxist bloc at the universities in Scandinavia, but the movement had not succeeded in establishing a firm position in the university curricula, a uniform theory, or a steady connection with politics. There was still both a practical and theoretical need for critical leftist scholarship, but its charm and utility had weakened since the beginning of the decade. Scandinavian critical legal thought matured and developed during the 1970s. Marxist legal scholarship was the most radical scholarly endeavor in Scandinavia in the 1970s. The critical thought in the universities had spread during the 1960s, and when it came together with the theories and methods of sociology of law, and the critical theory and Marxism at the turn of the decade, it developed into Marxist legal scholarship. It was a theoretical form of the critical thought, pursuing a critical view of the law as an outcome of the class conflict. Whereas sociological jurisprudence discussed the rela-

186 Peter Blume, Arbejdskraftens organisering ─ om eksklusivaftaler: Ansatser til en retsteori, Retfærd 1/1976, 53–54; Niklas Bruun, Arbetsrätt och civilrätt ─ några utvecklingslinjer, Retfærd 1/1976, 33. 187 Per Jacobsen, Krise for det arbejdsretlige system? Juristen og økonomi 1977, 97–111. 188 Lars Helms, Om arbejdet frit, Retfærd 1/1976, 44–51. 189 Jørgen Jepsen, Arbejdskonflikter og “den offentlige ro og orden”, Retfærd 1/1976, 77–156. 190 The German journal Kritische justiz was founded in 1968 for critical and Marxist legal scholarship. 191 Issues 2–3/1977 of Häften för kritiska studier were dedicated to academic Marxism in the Nordic Countries. The tone of the issues was somewhat wistful, as if Marxism was coming to its end. 192 Marxistiska studier i norden, HfKS 2/1977, 2. 193 Den akademiska marxismens dilemma, HfKS 3/1977, 2–5. It was noted that Finland was an exception in which the connection between scholarship and politics was relatively close even though the academic repression of Marxism had been especially severe.

194 tionship between law and society, Marxist legal scholarship paid attention to the relation between law and class conflict, the ideological functions of law, and its materialist interests. By the mid-1970s, the Marxist bloc had grown to the extent that they founded a law journal and to tried to find a solid basis for cooperation. Although Marxism in general was losing its momentum, it still had extensive support in academia. Marxist legal scholarship was a kind of radicalization of the alternative legal scholarship and a theoretical representation of the radical and antagonist thought similar to CLS in the United States. The origins of the movements were in the social turbulence of the 1960s, the theoretical transformation of jurisprudence and academic scholarship, the leftist thought, the efforts to improve the rights of the citizen, and the pursuit of authenticity among the critical scholars. In the 1970s, the critique was set in the framework of theory and philosophy. In a sense, Scandinavian Marxist jurisprudence was also a reaction against the sociological jurisprudence, as was the critical legal scholarship in the United States. However, the difference was rather about the way the legal sociologists analyzed and interpreted the empirical material than about the approach as such. The radicals argued that sociological jurisprudence neglected the ideological aspect of law, and thus missed the way law created people’s conceptions of society and reality. The basic premises of Scandinavian Marxist legal scholarship and American CLS were also much the same. They both analyzed the relationship between law and society critically, and emphasized the position of values in law and the ideological functions of law. The rhetoric used and the theoretical basis marked the differences. Scandinavian critical scholarship was based on Marxism, whereas the American scholars applied several theories and often avoided socialist rhetoric. Thus the Scandinavians also had a common basis for critical scholarship, although with differing interpretations, whereas the Amer- icans operated with various approaches. After the mid-1970s, both movements organized; Scandinavian scholars founded Retfærd, American scholars founded CLS. The evolution of the organized forms of the criticism reflects their position within the academic controversies; critical legal scholarship was also a tool of criticism and an attempt to change the tradition. In the following sections I will discuss the dimensions of the criticism in order to illuminate its characteristics.

4 Changes in criminal law scholarship, 1965─1979

4.1 Criminal law and alternative legal scholarship

Criminal law scholarship and criminology in particular were important parts of the alternative legal scholarship of the 1960s and 1970s, being one of its first and most influential forms. Alternative criminological research related to the rise of the sociology of law and also affected its development. Alternative criminology in the 1960s regarded

195 crime as a social phenomenon, relating rather to social structures than to the deviant personality of the offender. Furthermore, the concept of crime was considered as a social construct, a manifestation of social power rather than the expression of a natural state. Alternative criminal legal scholarship thus began to investigate crime as a phenomenon of social reality and focused on the reasons why crime occurred and why it was understood the way it was. In this section, I will examine the rise of the alternative criminology and criminal legal scholarship in the 1960s. Besides sociology of law, criminal law was the first branch of law in which a noteworthy school of alternative scholarship emerged, and was therefore an essential element in the development of critical legal scholarship. Since a comprehensive analysis of the subject would require a book of its own, I will concentrate on its main features. I shall explore the alternative views of the concept of crime, methods of investigating it, and the efforts of the scholars to influence criminal law. Criminal law scholars were those who most actively participated in legal and political debates and tried to influence the legal-political practice. The lasting influence of the alternative criminal law scholarship of the 1960s and 1970s was the heavy emphasis on criminology that the Scandinavian criminal law scholarship exhibits even today. The origins of the alternative criminal law scholarship of the 1960s are in the postwar sociology, criminology, and social science. Survey studies of American and British scholars in the late 1940s and early 1950s revealed that crime was much more widespread in society than was traditionally believed. Social-psychological, sociological, and structural criminology were established when these notions were combined with the new currents in social studies concentrating on social structures. Scandinavian scholars often studied in the United States in the 1950s and brought the new methodologies of criminology with them, and alternative criminology began to flourish in the late 1950s and early 1960s. The social upheaval of the 1960s intensified the need and the desire to study crime as a reflection of social power structures, and the Scandinavian ministries of justice were often interested in criminological research as a basis for their policies. Criminology and sociology of law in Scandinavia thus took the same path in the 1960s, and cooperation between the scholars in the Nordic Countries began. The “Scandinavian Studies in Criminology” study series was established in 1965 in order to expose Scandinavian criminological research to an international audience.194

194 Johannes Andenæs, Foreword, 7–9, in Scandinavian Studies in Criminology, Volume 1 (Oslo: Univer- sitetsforlaget 1965), 7–11. For a description of Scandinavian criminology before the 1960s, see Nils Christie, Scandinavian Criminology, Sociological Inquiry 1961, 93–104, and for a description of Scandi- navian criminology in the 1960s, see Nils Christie, Scandinavian Criminology Facing the 1970’s, in Scandinavian Studies in Criminology Volume 3 (Oslo: Universitetsforlaget 1971), 121–149. Before the Second World War, Scandinavian criminology was founded on the European tradition, but it combined with the sociological elements of American tradition after the War. (Christie 1961, id. at 93; Christie 1971, id. at 121.) A reason for the postwar dominance of Anglo-American scholarship was the fact that scholarship programs made it easier to go to New York or London to study than to the cities of the Euro- pean continent. (Christie 1971, id. at 121.) There was also criminological and sociological scholarship in Scandinavia in the 1930s and 1940s. (Lars Björne, Realism och skandinavisk realism: Den nordiska rätts-

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Critical criminology had established itself as a school of criminal jurisprudence by the mid-1960s, investigating the social factors of crime. It shared the trends in alternative legal scholarship in discrediting doctrinal analysis. Aubert, for instance, argued that the traditional studies did not give a realistic account of crime because they ignored the social context.195 Preben Wolf and Erik Høgh, on the other hand, conducted a thorough statistical analysis of crime, concluding that since crime originated mostly from social circumstances, criminal policy should include aspects of social, welfare, and cultural politics.196 Like sociological jurisprudence, the alternative approach to crime emphasized contextual studies, cross-disciplinary research, and a focus on law in action. The new approach encouraged various studies on particular aspects of the control system from a realistic and empirical perspective. These studies concerned such things as the social role of the public prosecutor,197 the psychological aspects of the influence of social experiences on the statements of witnesses,198 and problems regarding the probation system.199 There was a serious interest in the functions and effects of the system, and the structural and the functional approach were seen as helpful in understanding its reasons and motives. As the general atmosphere was critical of public authorities and the government had optimistic faith in social planning, scholars paid more attention to the realities of the state institutions. A significant study on the control system was Thomas Mathiesen’s The Defences of the Weak, published in 1965. Mathiesen was a sociologist who studied in the United States in the 1950s and contributed to the Scandinavian sociology of law and criminology in the 1960s. In his doctoral dissertation he explored the informal structures of power within a Norwegian correctional institution and the experiences of the inmates regarding the treatment and the punishment within the facilities. He developed a theory of censo- vetenskapens historia, Del IV, 1911–1950 (Stockholm: Rättshistoriskt bibliotek 2007), 64–65, 82, 185– 187.) Traditional wisdom says that American influences brought a more sociological tone to Scandinavi- an criminology. In 1976, however, Leif Persson argued that Scandinavian criminology lost its sociological grip because of the American influences which were mostly social-psychological, stressing individual behaviorism. (Leif Persson, Sociologin som försvann, NTfK 1976, 97–98, 108–115, 117–119.) It is difficult fully to agree with his arguments. True, research was theoretical, and the perspective of the group and the individual was often stressed. However, the purpose was to relate the individual to a social context, and society and the individual were connected in many respects. Methodologies, however, varied, so that the overall estimation of the issue depends on the perspective and methodologies of the reviewer. Moreover, there might be a difference of opinion as to what could be meant by a sociological perspective. The perspective of social psychology might seem less “sociological” for one than for the other. Ragnar Hauge, reviewing a book gathering the career of Nils Christie, noted that Christie’s scholarship, like Norwegian criminology in general, had developed from the early fifties to the late seventies from an empirical, social psychological view to emphasizing the aspects of social philosophy more. (Ragnar Hauge, Vandring gjennom norsk etterkrigskriminologi, Lov og rett 1979, 166.) 195 Aubert 1964, supra n. 42 at 20–21; Aubert 1965, supra n. 43 at 60–69. 196 Preben Wolf & Erik Høgh, Kriminalitet i velfærdssamfundet (København: Jørgen Paludans forlag 1966), 10, 25, 63. 197 Klas Lithner, Åklagarrollen, TfR 1965, 85–116. 198 Berl Kutschinsky, Nogle vidnepsykologiske problemer belyst ved et eksperiment: Narkomanen der afbrød statsadvokaten, TfR 1969, 341–368. 199 Ragnar Hauge, Institutional Dilemmas in Probation and Parole, in Scandinavian Studies in Criminolo- gy, Volume 2 (Oslo: Universitetsforlaget 1968), 41–52.

197 riousness which referred to the reactions weak people felt in relation to their superiors. According to him, there was a consensus on the established norms but the ruled often felt that the rulers deviated from them. Power in this context referred to the ability to control the distribution of burdens and benefits within the established structure of relations. Although the theory was constructed in relation to the correctional institution, Mathiesen argued that censoriousness worked in society as well.200 The study reflected the sociological and empirical orientation of alternative scholarship, in which the official rules were in the background and the unofficial control and the power structures were more important. Although the study concerned a correctional institution, the theory was also applied to social structures. The leap seems to have meant that the society was also a kind of a prison in which the ordinary citizen was subjected to the higher stratum and control was mostly exercised through unofficial methods. Criminology was thus linked to the larger discourse on the nature of society and control. Alvar Nelson reflected the radical attitude when he criticized the Swedish criminal code for being conservative and biased against the traditional crimes. He argued that criminal law was a remnant of the class society and thus the system had to be seriously revised.201 The radical view of crime caused the tension between conservative and radical criminology, as the Finnish sociological legal scholar Inkeri Anttila called them, the latter of which saw crime as an expression of social conflict and criminal policy as a mean of balancing these conflicts.202 This notion was criticized for neglecting the good aspects of the conservative criminology.203 Just as there was a conflict between traditional and alternative scholarship, there was a conflict between traditional and alternative criminal policy, the latter arguing more for reform. The problem here was also a matter of debate, because the scholars had different perspectives on the problems and therefore interpreted them differently. Alternative legal scholarship was closely related to politics. Some scholars, for instance, exhibited political biases in their studies,204 thus reflecting the argument that the relationship between politics and scholarship had to be openly reviewed. Besides the politicization of scholarship, cross-disciplinary research was another issue in the strife over political scholarship. The Norwegian legal scholar, Johannes Andenæs, who also participated actively in sociological and criminological studies, noted that cross- disciplinary research was necessary in providing social data for political reform205 and

200 Thomas Mathiesen, The Defences of the Weak: A Sociological Study of a Norwegian Correctional Institution (London: Tavistock Publications 1965), esp. at 3–18, 70–72, 150–151, 228–230. 201 Alvar Nelson, Brottsbalken och klassamhället, 75–82, in Murray (ed.) 1967, supra n. 119 at 75–83. 202 Inkeri Anttila, Konservativ och radikal kriminalpolitik i Norden, NTfK 1967, 245–251. Anttila meant by the distinction between conservative and radical the pace of reform in criminal policy. (Id. at 237.) Thus, what once was radical was now considered as conservative. Inkeri Anttila was a major figure in critical criminology in Finland. 203 E. Hoeck-Gradenwitz, Kriminalpolitik: Ud fra socialpsykologiske synspunkt, NTfK 1968, 40–43. 204 Aubert 1964, supra n. 42 at 8; Mathiesen 1965, supra n. 200 at vii. 205 Johs. Andenæs, Kriminologi og kriminalpolitikk, 40, in Johs. Andenæs, Anders Bratholm, Nils Chris- tie, Kriminalitet og Samfunn: Artikler og foredrag (Oslo: Pax forlag 1970), 33–45.

198 modifying legal scholarship to correspond to contemporary problems.206 In many ways, alternative scholarship made it possible to participate in academic, social, and political debates. It was reformist scholarship which also took social and political problems seriously and provided data for reform. Critical criminologists regarded themselves as experts on contemporary problems and thus pointed out the utility of their scholarship. An important topic on which the political orientation of the alternative methodology was obvious was recidivism. Studies on recidivism claimed to provide useful information about criminal offenders and the factors that either increased or decreased the probability of recidivism.207 It was thought that this data enabled analysis of the efficiency of the criminal justice system and its punitive aspects. In addition, studies sup- plied information on the sociological structure of crime. Thus, there was both a sociological and a political aspect to the studies since they afforded data on crime as a social phenomenon and on the measures meant to combat it. Although criminology was the emerging methodology of crime studies, the scholars were not completely unanimous on the methods and purposes of criminology. The 1960s and 1970s witnessed various efforts to explicate the methods of criminology in a modern way. Nils Christie provided his view on criminology in 1965 in a book which was based on the analysis of the relation between norm-abiding and deviance. Accord- ing to Christie, the legislator defined crime, which was thus a manifestation of social power, and criminology studied the social reflections of this power structure.208 Christie was laying down an outline of the methods of alternative criminology. Later he criticized the standard account of criminology, Stephan Hurwitz and Karl Christiansen’s voluminous book,209 for its lack of sociological perspective. Christie argued that criminology was meaningless without a solid connection with society.210 Because of the stress on the sociological elements in studying crime, alternative criminology sought to point out that criminology was not an autonomous discipline but cross-disciplinary scholarship. Besides reflecting the politicization of scholarship and the transformation of the methodologies, the attack on traditional scholarship and the emphasis on cross- disciplinary work was also an effort to dethrone the tradition and to replace it with the new approach. The schism between the traditional and alternative approaches was evident in criminology, as it was in jurisprudence. One of the authors of the standard criminology

206 Johs. Andenæs, Skjebne, skyld, straff, 70, in Andenæs, Bratholm, Christie 1970, supra n. 205 at 46– 70. 207 Inkeri Anttila & Achilles Westling, A Study in the Pardoning of, and Recidivism Among, Criminals Sentenced to Life Imprisonment, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 13–34; Karen Bentsen & Karl O. Christiansen, A Resocialization Experiment with Short-Term Offenders, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 35–54; Karl O. Christiansen, Mimi Elers- Nielsen, Louis Le Maire, George K. Stürup, Recidivism among Sexual Offenders, in Scandinavian Studi- es in Criminology, Volume 1 (Oslo 1965), 55–85; Sv. Gram Jensen, Fængsel på livstid: Danmark 1933─57, NTfK 1972, 81–89. 208 Nils Christie, Kriminalsosiologi (Oslo: Universitetsforlaget 1965). 209 Stephan Hurwitz & Karl O. Christiansen, Kriminologi I–II (København: Gyldendal 1968–1971). 210 Nils Christie, Litteratur [Kriminologi], NTfK 1971, 349.

199 and a mentor of many Scandinavian criminologists, Karl Christiansen, criticized a Finn- ish text book on criminology, titled Criminology from the Perspective of Criminal Poli- tics,211 for its policy-oriented view, arguing that the book could just as well have been named “criminal politics from the criminological perspective”.212 The more traditional scholars did not like the politicization of scholarship that was an important part of the alternative criminology. By bridging the gap between research and politics, alternative scholars sought to bring academia closer to society. Criminology was thus a clear example of the academic controversies and the urge to transform the tradition. The endeavor to bring the new elements into criminological research was in part an effort to deprecate the tradition in order to support the alternative cause. Alternative criminology did bring various new elements into criminal law scholarship, but it was not radical criticism of the system. Whether functionalist, sociological, realist, or political, the minor branch of radical criminologists criticized the alternative criminology for being bourgeois. A Finnish radical criminologist, Klaus Mäkelä, for example, argued that the recent Scandinavian critical criminology was too abstract and lacked a context. According to him, critical criminologists had universalized the concept of crime and missed the significance of class conflict in this regard. He argued that criminological studies should be related to the legal system as a whole.213 Marxist or radical criminology differed from critical or alternative criminology in that the former sought to change the whole social and legal structure, whereas the latter focused rather on the structure of criminal law. In addition, whereas critical criminology saw crime as a reflection of social power relations, radical criminology related crime directly to the economic basis of society. In Scandinavia, Marxist criminology was, however, a marginal phenomenon and did not have the significance that critical criminology did. Critical criminology developed in the 1950s and began to establish itself as a school of criminal jurisprudence in the 1960s. The rise of the sociology of law and the recent trends in scholarship influenced its development, but it was also driven further by the social turmoil and the academic conflict between the traditional and the alternative professions. Critical criminology contributed greatly to the development of alternative legal scholarship, providing data and arguments for criticism of law and society. It was cross-disciplinary scholarship responding to the contemporary social needs and to the planning optimism of the 1960s. Its prime objective was the analysis of crime as a social phenomenon, reflecting the social power structure, as will be clarified in the following sub-section.

211 Inkeri Anttila & Patrik Törnudd, Kriminologi i kriminalpolitisk perspektiv (Stockholm: P.A. Norstedt & Söners förlag 1973). The book was a Swedish translation and slightly modified version of a Finnish book by the same authors. 212 Karl O. Christiansen, Litteratur [Kriminologi i kriminalpolitisk perspektiv], NTfK 1974, 188. 213 Klaus Mäkelä, The Societal Tasks of the System of Penal Law, 47–53, 61–64, in Scandinavian Studies in Criminology, Volume 5 (Oslo: Universitetsforlaget 1974), 47–65.

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4.2 Criminal law scholarship and criminal policy

Critical criminal law scholars adopted a realistic perspective on the functions of the administration of criminal justice in order to reveal the ways it actually functioned in society. Their critical notions and the results of their studies encouraged them to reconsider some of the fundamental premises of the criminal system. Important in the respect were the studies on self-reported crime. Becoming more common during the 1960s and 1970s, they sought to point out that crime was much more widespread in society than was normally assumed but the system functioned selectively against the lower social classes.214 The moral standard of the critical thought of the time stressed that people were not that different, but it was the system that caused the differences. In order to transform the criminal system to meet the critical standard, Nils Christie, for instance, argued that one should not polarize people into saints and sinners, but approach crime as a social problem.215 The studies on self-reported crime adhered to the fact that people of all classes committed crimes, but the official statistics revealed only the tip of the ice- berg that the official control system was able to solve, and that the system discriminated against the lower classes. Critical criminology thus directed its research to the reform of criminal policy, and the struggle to a humane criminal policy became the slogan of the 1960s and the 1970s. The arguments against the treatment ideology and special deterrence and for general deterrence related to the studies on self-reported crime. The critical criminology attacked the treatment ideology that functioned as a basis of the contemporary system of punishment.216 While the defenders of the treatment ideology argued that its critics did not have an accurate image of it,217 critical scholars kept piling up evidence on the bad effects of treatment and the idea of special deterrence it was based on. They argued that sentences based on individual treatment ideology caused much uncertainty and feelings

214 Johs. Andenæs, Knut Sveri, Ragnar Hauge, Kriminalitetshyppigheten hos ustraffede I: Norsk un- dersøkelse, NTfK 1960, 97–112; Nils Christie, Johs. Andenæs, Sigurd Skirbekk, A Study of Self- Reported Crime, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 86–116; Kerstin Elmhorn, Study in Self-Reported Delinquency among Schoolchildren in Stockholm, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 117–146; Inkeri Anttila & Risto Jaakkola, Piiloon jäävä rikollisuus (Helsinki: Kansalaiskasvatuksen keskus, Monistesarja 12/1966); Birgit Werner, Den faktiska brottsligheten, NTfK 1971, 106–141; Birgit Werner, Socialgruppsfördelning vid självdeklarerad brottslighet, NTfK 1971, 191–215; Vagn Greve, Kriminalitet som normalitet: En studie i den ikke- registrerede kriminalitet i Danmark (København: Juristforbundets Forlag 1972); Ragnar Hauge, Hverdagsvold i Norge, Lov og rett 1972, 259–264; Leif Lenke, Den dolda våldsbrottsligheten i Stock- holm ─ en sjukhussurvey, NTfK 1973, 136–145; Helge Røstad, Noen betraktninger om kriminalstatistikk og om kriminalitetsutviklingen i Norge gjennom de siste 20 år, NTfK 1974, 1–41; Peter Sigsgaard, Voldsskader og skjult vold i en arktisk by, NTfK 1974, 266–277; Emma Vestergaard, Om voldtægtsofre: Victimologi, NTfK 1974, 151–179; Anne-Birgitte Westh, Skadestuebehandlede ofre for vold: Frederiks- berg Hospital 1972, NTfK 1974, 64–76. 215 Christie 1965, supra n. 208 at 9; Christie 1971, supra n. 194 at 126–127. 216 Anttila 1967, supra n. 202 at 239–243. 217 Hoeck-Gradenwitz 1968, supra n. 203 at 40–41.

201 of injustice among the convicts,218 and that it could not contribute to the preservation of general morals in society, which ought to be the primary function of the criminal system.219 They argued further that special deterrence had caused marked diversity in the criminal system which was bad for equality and justice.220 Therefore the criminal system should be based on general deterrence because then punishments would be measured according to the gravity of the crime.221 The pursuit of a humane system of criminal law was a clear reflection of the social activism of these decades. The arguments against the individual and for unified standards of punishment were reactions to the liberalization of society, as well as against the tradition of criminal law scholarship. In the attempt to change the tradition, the alternative scholars adopted the role of a utopian politician, and criticized the basis of the system. In arguing against harsh punishments and special deterrence, scholars began to criticize the prison system. Studies had already shown in the late 1950s and early 1960s that treatment was not especially effective in curbing recidivism,222 but the ground- breaking study in Scandinavia was Bengt Börjeson’s detailed treatise, which concluded that recidivism was often higher after incarceration than surveillance and control in freedom.223 Since the time was now ripe for a thorough criticism of the treatment ideology and reform of the system of punishment, the studies of the 1960s on the subject were seeds sown on fertile land. Thus, scholars argued that punishment should aim at re-socializing the convicts,224 and that the methods of rehabilitation after punishment should also be reformed accordingly.225 In addition, Christie noted that incarceration was such a harsh intrusion into the personal liberty of the citizen that it should be used only for serious offences.226 Since crime was to be understood as a social phenomenon, social policy measures would be the most appropriate in upholding general morals against crime and improving the social deficits which caused crime.227 The criminal justice system of the 1960s was based on incarceration, treatment ideology, and special deterrence and the critical legal scholars were at pains to point out their inefficiency and inappropriateness. Since the alternative thought of the 1960s saw crime as a social phenomenon, it also reviewed the administration of criminal justice against its social functions.

218 Mathiesen 1965, supra n. 200 at 93–94, 153, 166–178, 180. 219 Johs. Andenæs, Straff og almenprevensjon, TfR 1966, 1–47; Johs. Andenæs, The General Preventive Effects of Punishment, 114 University of Pennsylvania Law Review 949–983 (1966). 220 Johs. Andenæs, Om virkningen av forskjellige reaksjoner mot lovovertredere, NTfK 1966, 117–120. 221 Eva Nordland, Allmennprevensjon og disiplin i oppdragelsen, NTfK 1966, 243–244. 222 Ragnar Hauge, Straffens begrunnelser (Oslo: Universitetsforlaget 1996), 263–264. 223 Bengt Börjeson, Om påföljders verkningar: En undersökning av prognosen för unga lagöverträdare efter olika slag av behandling (Stockholm: Almqvist & Wiksells 1966), 137–138. 224 Gunnar Marnell, Fängelsesamhället, NTfK 1967, 206–225. 225 Hauge 1968, supra n. 199; Inkeri Anttila, Kriminalvård i frihet ─ social service eller kontroll? NTfK 1973, 24–36; Barbro Schillander-Lundberg, Kriminalvård i frihet: Service – kontroll, NTfK 1973, 113– 119. 226 Nils Christie, Changes in Penal Values, 161–162, 172, in Scandinavian Studies in Criminology, Vo- lume 2 (Oslo 1968), 161–172. 227 Göran Hultkranz, Några synpunkter på brott och straff, SvJT 1967, 285–292.

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Crime was such an important topic that the link between political practice and alternative scholarship on crime was easy to form. The Scandinavian associations for criminal reform were established in Sweden in 1966, Denmark and Finland in 1967, and Norway in 1968. These associations combated the penal system and fought for reform. The research of the time was closely connected to the operation of these movements, and many of the critical legal scholars on criminal law were actively involved in the associations. The associations were obvious signals of the seriousness of the scholar’s intention to alter the paradigm, but also of the benevolent aspects of the scholarship. Alternative scholarship on crime was not simply academic scholarship or a method of criticism, but also a tool of political activism and reform. In 1968, a conference on the reform of criminal policy was held in Sweden. The scholars of alternative scholarship on criminal law could discuss the recent scholarship on the problems of crime and contemplate the potential for reform. The conference, which was filled with familiar names of alternative legal scholarship and critical criminology, dealt with relevant topics regarding both politics and scholarship.228 Nestius, Nelson, and Hecksher argued for closer cooperation between social care and criminal after care,229 and Mathiesen and Gustavsen criticized the prison institution for its stigmatizing and incapacitating influences.230 Many scholars argued that criminal law was biased against the so-called traditional crimes and thus against the lower social classes, even though studies had pointed out that crime was much more common in society.231 The gathering was a perfect place for the scholars to point out that the criminal system was outdated and biased. Alternative and critical legal scholarship had become so common by the end of the 1960s, in particular with respect to criminal law, that it was possible to organize a conference to discuss problems and reform. The purpose of the conference seems to have also been to create a connection between scholarship and practice that would encompass all the aspects of the system. Thus, the pursuit of the humane criminal policy was a common aspect of both politics and scholarship. The humane perspective on criminal law changed the critics’ perception of crime, which was not to be tolerated, but was to be understood.232 As noted by the organizers of a Swedish symposium on social change and criminality, crime was a part of a complex totality of social problems, and thus could be comprehended as a symptom among

228 See Nestius (ed.) 1969, supra n. 8. 229 Nestius 1968, supra n. 8 at 9–12; Alvar Nelson, Straff ─ eller erbjudande om hjälp? 168, in Nestius (ed.) 1968, supra n. 8 at 163–168; Sten Heckscher, Reformkrav ─ i längre och kortare perspektiv, 170, in Nestius (ed.) 1968, id. at 169–174. 230 Thomas Mathiesen, Vakt och vård ─ kan det förenas? 144–149, in Nestius (ed.) 1968, id. at 139–150; Nils Gustavsson, Frälsningen ─ och de totala institutionerna, 151–160, in Nestius (ed.) 1968, id. at 151– 160. 231 Lars D. Eriksson, Olikheten inför lagen, 58–61, in Nestius (ed.) 1968, id. at 58–65; Torstein Eckhoff, Straffens sociala slagside, 68–70, in Nestius (ed.) 1968, id. at 66–73; Kettil Bruun, Kontrollpolitik och frihetsberövande, 76, in Nestius (ed.) 1968, id. at 74–78. 232 Hauge 1972, supra n. 215 at 211; Knut Sveri, Våldet i samhället, NTfK 1974, 42–44.

203 many of the consequences of the social changes.233 It was typical, as done in the symposium, to gather scholars of various disciplines to discuss crime and its control in all its possible social aspects,234 since the emphasis on cross-disciplinary analysis reflected the pursuit of the comprehensive perspective of alternative legal scholarship. Arguments for the class-biased nature of the criminal control system were more shrill in the mid-1960s. A significant figure was Aubert, who conducted sociological studies and developed critical theory on the concept of crime.235 On the basis of Aubert, Gunnar Olofsson conducted a master’s thesis study on the impact of the social status on punishment in traffic crimes, concluding that there was a certain amount of status-based discrimination in the judicial process.236 The study might have passed unnoticed had it not been used as evidence of discriminatory criminal adjudication in a TV program. It is indeed odd how significant this little study became to the Scandinavian scholarship on the issue, but because of the wide publicity of the study, Malmer, a more traditional legal scholar, criticized it for result-oriented interpretation of the empirical material and for an inaccurate description of the criminal justice system.237 Interpretation of empirical statistics was obviously a matter of debate and often reflected the world-view of the interpreter, but the attention the study attracted also shows the different perceptions of the competing views. Critical scholars, nonetheless, argued for a realistic analysis of criminal law. For instance, Andenæs and Hauge researched the sentencing practice of the Norwegian Su- preme Court, finding that it did not follow its own principles, which caused a serious breach in legal reality.238 Mogens Moe also noted that there were clear and serious differences between sentencing of the various judges,239 and Göran Elwin argued that the traditional legal scholarship masked many relevant aspects of judicial decision-making in criminal cases.240 The critical arguments followed the notion concerning the gap between law in books and law in action. Although criminal adjudication was often thought to be different than civil law adjudication, the critical scholars noted the discretion in adjudication which in their opinion caused inequitable legal practice. The difference between theory and practice led the scholars to contemplate the ideological function of law. The critics argued that the gap between law in books and

233 Åke Daun, Bengt Börjeson, Stig Åhs (eds.), Samhällsförändringar och brottslighet (Stockholm: Tidens förlag – Folksam 1974), 7. 234 See in general id. 235 Aubert 1964, supra n. 42 at 70–96. 236 Gunnar Olofsson, Status och dom i trafikmål ─ en beskrivning av 506 trafikbrottslingar jämte en analys av domsskillnaderna, särskilt med tanke på statusfaktorer (Lunds Universitet: Sociologiska Institut- ionen 1965), 3–6, 49. Olofsson’s study was mostly based on Aubert’s work with a few references to American literature. 237 Gustav Malmer, Status och dom i trafikmål, SvJT 1971, 571–576. The study was significant in Fin- land, where Raimo Blom referred to it frequently in his studies on the impact of social status in the criminal process. 238 Johs. Andenæs & Ragnar Hauge, Uaktsomt drap, NTfK 1966, 24–25, 28. 239 Mogens Moe, Milde og strenge højesteretsdommere, NTfK 1970, 169. 240 Göran Elwin, Några frågor angående lagtillämpning och domskrivning i straffrätten, 250–251, in Festskrift till Per Olof Ekelöf (Stockholm: P.A. Nordstedt & Söners förlag 1972), 224–251.

204 law in action was maintained by myths and ideologies which laid the basis for the criminal system.241 The official “myths”, for instance, gave an unrealistically humane and efficient image of the prisons although the reality was very different.242 Dag Victor thus argued that criminal politics should be studied as a part of society in order to avoid the myths and conservative ideology.243 The general atmosphere among the radical left and progressive social circles was against the traditional social institutions. With the help of the critical scholarship, critical legal scholars sought to point out that there was a disparity between the official and the actual position. What was then needed, according to the critical scholars, was a total reform of the criminal system. As noted, there was widespread skepticism about the prison system,244 which, in accordance with Foucauldian history, was considered to protect the prevailing capitalist ideology.245 The critical scholars investigated its various aspects in order to demonstrate the flaws in the system. Prison sentences of indeterminate duration were widely criticized because they were not good for general deterrence, against the rehabilitative ideal, and caused uncertainty.246 In addition, the reformers often argued that short prison sentences could be replaced by fines because they had been proved better in re- socializing the criminals.247 In general, the inefficiency of the criminal justice system was widely acknowledged, and scholars contemplated ways to improve it. Common themes were decriminalization of traditional crimes and criminalization of modern crimes and finding a balance between the penalties imposed on the various crimes.248 The critical opinion was that the modern system of criminal justice did not conform to social standards, but was conservative and inequitable. The contemporary social standards were, of course, defined by the critical scholars who nevertheless argued that they had revealed the ideology behind the system. Stig Edling and Göran Elwin, who contributed significantly to the development of sociology of law and critical criminal law scholarship, also stressed the conservative and outmoded nature of the criminal system in their comprehensive analysis of the offi-

241 Stig Edling & Göran Elwing (eds.), Samhällskontroll och mytbildning: Åtta inlägg om nordisk kontrolpolitik (Stockholm: Wahlström & Widstrand 1972), 5 [foreword]. 242 Odd Wormnæs, Om myter och mytbildning i kriminalpolitiken, 10–19, in Edling & Elwing (ed.) 1972, supra n. 241 at 9–33. 243 Dag Victor, Vilka myter får vi slåss mot i framtiden? 106–109, in Edling & Elwin (ed.) 1972, supra n. 241 at 106–115. 244 See Vilhelm Aubert, Forskning om almenprævention, 10–13, in Møller Nielsen (ed.) 1970, supra n. 52 at 5–24. 245 Thomas Mathiesen, Fängelseväsendets ideologi 1600─1970, 42, 53–57, in Edling & Elwin (ed.) 1972, supra n. 241 at 34–57. 246 Göran Elwin, Är tidsobestämda straff ändamålsenliga? SvJT 1972, 139–142; Bent Unmack Larsen, Strafferettens forfald: Bemærkninger til straffelovrådets forslag om de strafferetlige særforanstaltninger, Juristen 1973, 122, 124–126, 128. 247 Anders Bratholm, Bør adgangen til å anvende bøtestraff utvides? Lov og rett 1967, 193–216; Erland Aspelin, Böter i stället för frihetsstraff, NTfK 1973, 53–72; Erland Aspelin, Det korta frihetsstraffet under debatt, SvJT 1974, 532–538. 248 Johs. Andenæs, Kriminalitet, kriminologi og strafferett ved inngangen til 1970-årene, Juristen 1970, 469–477; Mogens Moe, Erstatning, afgifter og andre ikke-pønale retsfølger som alternativer til bødestraf: kriminalpolitiske synspunkter, NTfK 1974, 224–235; Erland Aspelin, Utvecklingslinjer i svensk kriminalpolitik efter brottsbalkens införande, NTfK 1975, 97–122.

205 cial report on the prison reform.249 They analyzed the political composition of the committee and its memorandum in detail, concluding that the proposed reform would not change the system of punishment as expected, would maintain the conservative nature of the prison institution and the uncertainty and inequality of law, and contribute to the myths of the efficiency and appropriateness of the modern system. The analysis reflected both the realistic, sociological and political analysis of criminal law and the thoroughgoing reforms the critical scholars often stressed. The critical scholars also tackled the problem of juvenile delinquency. Mathiesen criticized the juvenile detention centers for anti-socializing and stigmatizing impacts,250 and Bratholm argued that the juvenile delinquency system should be reformed in accordance with the general trends by emphasizing humanity, rehabilitation, and general deterrence.251 Ulla Bondeson conducted an empirical and multi-disciplinary research study on the community of the inmates within correctional centers, particularly dealing with juvenile delinquents. She concluded that the treatment within the centers and the ideology of individual prevention had failed.252 By emphasizing universal arguments in studies on particular subjects, the critical scholars sought to point out the fundamental flaws of the criminal law system. Since the ultimate target was the system of criminal law, an important topic was the purpose and function of criminal punishment. And since the alternative scholars were against the traditional system and for the reformist agenda, the argument was that criminal law ought to be based on general deterrence. According to the general opinion, it would treat criminals equally, be certain, diminish harsh penalties, provide better opportunities for re-socialization and rehabilitation, and educate people to avoid criminal behavior.253 Not everybody was, of course, straightforwardly optimistic about general deterrence. It was, for instance, argued that the criminal system should be based on economic theory.254 For the critical scholars, the concern was the fact that general deterrence often raised the level of punishment. Nils Christie noted this, calling for more research on the impact of general deterrence.255 Andenæs, the most prominent spokesman for general deterrence, argued on the other hand that it was the most appropriate basis for criminal law.256

249 Stig Edling & Göran Elwing, Obduktion av en död utredning: Om förslaget till ny fängelselag (Stock- holm: Wahlström & Widstrand 1972). 250 Thomas Mathiesen, Bør ungdomsarrest innføres? Lov og rett 1969, 228–238. 251 Anders Bratholm, De strafferettslige reaksjoner mot unge lovovertredere, 149–150, in Andenæs; Brat- holm; Christie 1970, supra n. 205 at 138–151. 252 Ulla Bondeson, Fången i fångsamhället: Socialisationsprocesser vid ungdomsvårdsskola, ungdoms- fängelse, fängelse och internering (Malmö: P. A. Nordstedt & Söners förlag 1974), 560. 253 Hauge 1996, supra n. 222 at 265–270, 300–303. 254 Göran Skogh, Analys av allmänpreventionen med utgångspunkt från ekonomisk beslutsteori, NTfK 1972, 296–301. 255 Nils Christie, Forsking om individualprevensjon kontra almenprevensjon, Lov og rett 1971, 50, 54, 57–58. 256 Johs. Andenæs, Forsking om individualprevensjon og almenprevensjon: Noen kommentarer til professor Christies artikkel, Lov og rett 1971, 61–64, 69.

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The difference of opinion followed from the difference in perspective. Although they were fundamentally on the same side, Christie had more social perspective on the issue at least partly because of his sociological education. Thus, he argued that law alone could not decrease crime, but it could contribute to social structures that would.257 Elwin, on the other hand, encouraged more nuanced discussion on general deterrence. He thought that sometimes it might function merely as an ideology, hiding the real causes of criminalization, such as was the case with property crime, and as an ideology it also legitimized harsh punishments.258 Since the common catchphrase of the time was that social policy was the best criminal policy, the more critical the scholar was, the more emphasis he or she placed on the social structures. Although the general trend was towards general deterrence, the scholars had differing conceptions about it and emphasized different aspects of it. In any event, Andenæs’s faith did not fade as the 1970s went on. In 1974, he published two collections of his articles advocating general deterrence.259 He argued that it deterred, built morality, created general law-abiding behavior, and could thus form the basis for both legislation and sentencing practice.260 One of his most powerful arguments, covering a wide area of criminal law, was that “[p]unishment on the basis of general prevention is ethically defensible, both in legislation and sentencing, if the penalty is in reasonable proportion to the gravity of the offence and does not violate the principle of equality before the law.”261 And even in 1977 as the general enthusiasm faded, Andenæs supported general deterrence by noting that there was now more research on the topic which had increased knowledge of it and discouraged any radical arguments in one direction or another.262 General deterrence was one of the most important aspects of the alternative criminal law scholarship, and the policies in this regard often changed to a certain extent in favor of it. It was a fundamental principle which, according to many alternative scholars, could function as a guide-line directing the criminal system in a more just direction. The effects of the treatment ideology and the inequalities in the system were felt as deficiencies in need of correction, and the critical scholars were in the front line in pro-

257 Nils Christie, Strafferett og samfunnsstruktur, NTfK 1973, 1–2, 20. 258 Göran Elwin, Teser om allmänpreventionen, 92–93, 95–102, in Edling & Elwin (ed.) 1972, supra n. 241 at 85–105. 259 Johs. Andenæs, Straff og lovlydighet: Artikkelsamling (Oslo: Universitetsforlaget 1974); Johs. An- denæs, Punishment and Deterrence (Ann Arbor: The University of Michigan Press 1974) [later referred to as Andenæs 1974(a)]. The first was a collection of seven Norwegian articles, and the latter was a collection of six articles in English. The books were not identical, though very similar, and four of the articles were more or less the same, i.e., translations or modified versions. 260 Andenæs 1974(a), supra n. 259 at 8, 41–44, 112. 261 Id. at 147. 262 Johs. Andenæs, Nyere forskning om almenprevensjonen ─ status og kommentar, NTfK 1977, 95–97. Andenæs noted that in Scandinavia the concept of general deterrence referred both to preventive and moral-building aspects, whereas in the United States the concept normally referred only to preventive aspects. (Id. at 64–65.) There seems to have been a difference in legal cultures in the regard. The moral- building aspect was less important in the United States because law there is considered to be more about conflict resolving and of a pragmatic nature, whereas in Scandinavia law is also considered to include aspects of general policy.

207 moting the reform. General deterrence was also a general trend in criminal policy, not simply a matter for the alternative scholars. However, as the enthusiasm of the 1960s and early 1970s waned and the scholarship expanded, people became more moderate and less eager for radical reform. Whether the interest of a legal scholar regarding criminal policy was criminal law or other social measures, the purpose of the alternative scholarship was also to observe crime as a consequence of social relations and structures. Scandinavian critical criminologists were not particularly enthusiastic about the criminal system of the socialist countries because they normally held that an authoritarian society was too great a price to pay for the diminished criminality.263 This did not mean, however, that the literature lacked Marxist rhetoric. Many critical legal scholars in the field approached crime from the perspective of class conflict. As we saw, Alvar Nelson criticized criminal law for its class bias,264 and Aubert argued that criminal law often preserved the dominant social ideology.265 Furthermore, as we saw, it was argued that sentencing was in fact sometimes biased against the lower social classes. Although there was no glorification of socialism, the general rhetoric of the criticism stressed the class character of modern society and the social inequalities that followed. The general rhetoric of critical legal scholarship was thus present in criminal law. In Uppsala, for instance, a discussion group on matters of criminal law and policy was established in the late 1960s. Professor Alvar Nelson led the group, which consisted of the young scholars Nils Jareborg, Göran Elwin, Sten Heckscher, and Dag Victor, who discussed the need for openness and change in legal concepts. The point was to see that legal policy and legal theory could not be understood separately, since the theory needed policy considerations and policy needed theories.266 Students and would-be-scholars debated the nature and origins of legal concepts and the need for political research in criminal law. Alternative and critical legal scholarship also grew within the universities among eager students and in study circles in which the students could read theoretical literature and discuss the state of law and scholarship. One of the young legal scholars who was active both in Marxist legal scholarship and criminal law scholarship was Göran Elwin who, with Sten Hecksher and Alvar Nel- son, wrote a textbook on criminal law that was meant to provide a comprehensive account of criminal policy. The perspective was naturally critical, and the authors condemned Swedish criminal policy overall. For example, they argued that criminality was more common than the official “myth” claimed, incarceration was an ineffective mode

263 Johs. Andenæs, Anders Bratholm, Nils Christie, Inntryk fra kriminologi og strafferett i Sovjetunionen: Rapport fra en studietur, NTfK 1968, 112–114, 120–122. 264 Nelson 1967, supra n. 201; Holger Romander & Alvar Nelson, Är brottsbalken redan omodern? NTfK 1970, 217–219 [Nelson]. 265 Vilhelm Aubert, Om klasselovgivning, 62–72, in Bratholm & Sundby (ed.) 1976, supra n. 38 at 61–88. 266 Dag Victor, 1968 och “den nya Uppsalaskolan”, 174–177, in Modéer & Sunnqvist (ed.) 2010, supra n. 105 at 171–183.

208 of punishment, and that treatment ideology did not work.267 The book reflected the scholarly orientation of the authors. It was politically oriented to the extent that a reviewer noted that it should have been called “A critique of Swedish criminal policy”, and that it was mostly one-sided.268 The adverse criticism did not seem to bother the authors, since the book was revised four years later with a more pronounced Marxist tone. Now the authors stressed the connection between criminal policy, and not only social structures, but also capitalism, which was seen as the origin of the modern criminal policy. In addition, the attitude toward general deterrence was more critical than it had been four years earlier.269 The Marxist turn of the early 1970s was also obvious in the criminal law scholarship. Furthermore, the purpose of the book was to show that crime and criminal policy emanated from society and their particular forms reflected the power structures in society. The sophistication in critical theories made the theoretical basis of the book clearer and highlighted the points of the book. The construction of a comprehensive social theory of crime and the methods of controlling it was an important theme in the alternative criminal law literature of the 1970s. Thomas Mathiesen, who was an active scholar and a participant in the reform associations, worked on a theory of a society without prisons. In his The Politics of Abo- lition, published in 1974, he laid out its general outline, arguing that criminal policy was largely unreasonable and unjust and was thus to be mostly abolished. This was to be achieved through continuous struggle and partial reform, so-called negative reforms, which unmasked the unjust institutions and abolished them piece by piece.270 For Mathiesen, the continuous scholarship on revealing the legitimizing façade of the criminal justice institutions and the persistent dismantling of the system made the revolution. Abolitionism was indeed a radical argument, but Mathiesen managed to construct it in a way that made it seem like a realistic possibility. Whether its purpose was to produce reform or merely raise discussion, abolitionism was the most radical expression of the reformism of alternative legal scholarship. It was also a demonstration of a comprehensive strategy and a social theory of crime. Nils Christie also worked on a social theory of crime. His starting-point was that crime was fundamentally linked to society, arguing that the contemporary society had

267 Göran Elwin, Sten Heckscher, Alvar Nelson, Den första stenen: Studiebok i kriminalpolitik (Stock- holm: Tidens förlag 1971), 214–230. 268 Stina Holmberg, Litteratur [Den första stenen], NTfK 1973, 181, 184, 186, 189–190. Holmberg mostly criticized those parts of the book that were written by Elwin. 269 Göran Elwin, Sten Heckscher, Alvar Nelson, Den första stenen: Studiebok i kriminalpolitik (Fjärde omarbetade upplagan, Stockholm: Tidens förlag 1975). Compare, for example, the first edition, supra n. 264 at 43–91 with the revised edition at 41–89. Note that the Lefebvre quote in the first edition, at 43 is changed to a Marx quote in the revised edition, at 41. For a more critical perspective on general deterrence, see revised edition, at 235–259. 270 Mathiesen 1974, supra n. 8 at 9–10, 13–28, 198–212. The book consisted of two previous books published in Norwegian. Det uferdige (The Unfinished) was published in 1971, in which he elaborated his theory of change. Pressgruppe og samfunnsstruktur (Pressure Group and Social Structure) was published in 1973, and here he depicted the activities of KROM. Elements of abolition were thus the fundamental theory of change, theory of research and research in practice, practical actions, short term reforms, and the ultimate goal that was never fully to come.

209 increased wealth and distanced people from each other, which created the basis of common criminality, and hence official crime control had become significant. Crime was a social phenomenon defined by the powerful classes of society through legislation. He then defined conditions for a closely integrated society in which the administration of criminal justice and the system of criminal law would be brought closer to the people actually involved in the issue. The standards of a good criminal system were that it be approved by the people, simple, open, and clear. It was also supposed to cause as little suffering as possible, and people should be able to contribute to it as much as possible.271 The connection between the general criticism of capitalism and mass- consumption was reflected in Christie’s critique of the faceless, impersonal society, which had also created the atomistic law. He therefore sought to reform the system of crime control through changing the nature of the society and thus constructing a new legal system that would be accessible to and understandable by lay people. Besides commenting on the common themes, Christie was also adding some new elements to his work. He argued that culture, including legal culture, had professional- ized along the development of faceless society. This had turned people into roles, which had distorted the legal process. Hence there was a need for a victim-oriented process that would pay attention to the needs of the victim of the crime.272 Much of the criminal legal literature had revolved around the criminal, but the perspective of the victim was not forgotten. The purpose of the victim approach was also to create a closer relationship between people and let the parties take more charge in the process. The transition from a systemic functional approach to a humane approach was also evident. The common theme in the theories was to create a system of criminal law that was equitable and just. Critical scholars argued that most registered criminals were young, male, and from the lowest social classes, but there also was a major problem of modern economic crime that was not dealt with appropriately.273 The people of lower class were simply more prone to be caught in the machinery of criminal control.274 Therefore, education was often considered more efficient than harsh punishment.275 All the main themes relating to the general concern were gathered in Christie’s book, which was a collection of articles from two and a half decades of his career. The main message of the book was, as its title, Like Most of the People (Som folk flest), suggested, to understand crime in its social context. Criminals were usually not some kind of monster, Christie argued, but people created by their interactivity with society.276 Since the purpose was to see crime as a reaction to social circumstances, an approach to social psychology and sociology was important in understanding crime and creating a system that would fight against crime best and be just in responding to it.

271 Nils Christie, Hvor tett et samfunn? (Oslo: Universitetsforlaget 1975), 15, 38, 47–48, 64–72, 162–224. 272 Nils Christie, Konflikt som eiendom, TfR 1977, p. 113─132 273 Thomas Mathiesen, Kriminalitet, straff og samfunn (Oslo: Aschehoung & Co. 1974), 15–17. 274 Christie 1975, supra n. 271 at 99. 275 Agnete Weis Bentzon, Tugt, vold og voldtækt i Grønland, NTfK 1977, 27. 276 Nils Christie, Som folk flest: Artikler (Oslo: Universitetsforlaget 1978).

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Christies’s book was described as a cross-section of Norwegian postwar criminology.277 Indeed, it was. Criminology had come a long way during the previous two decades and the scholars had participated in various kinds of discussions. The main points of the critical scholars were that crime was common in society, it mostly originated in social structures, the administration of criminal justice was selective in terms of social classes, and that treatment and harsh penalties were ineffective in preventing it. The alternative scholars on criminal law participated in the contemporary debates, modified the basis of scholarship, and struggled against the traditional scholarship. The emphasis on the connection between scholarship and politics and on the cross-disciplinary approach was common methods that furthered the alternative cause.

4.3 Criticism of criminal law in perspective

So far, alternative criminal law scholarship has mostly been about the social nature of crime, and about criminological research and its political significance. The focus of critical scholarship was indeed the endeavor to understand the social causes of crime and the activity of changing the system. However, the scholars also contemplated matters less directly relating to the political consequences of their scholarship. I will now briefly discuss a couple of examples of criticism of the concepts of criminal law and criminal law scholarship in order to clarify the connection between critical legal scholarship and criminal law. As was often the case in general jurisprudence, criticism was targeted at Alf Ross’s concepts. According to Ross, the concepts of general and special deterrence were useless in defining the basis of criminal law because of their ambiguity and because they were based on social interests. Whether punishments served a social function, he argued, was an empirical question. Therefore, prevention was the goal and retribution the reason for punishment.278 Ross’s realism, in which concepts had to have a specific point of reference in empirical reality, did not please the scholars whose jurisprudential views were more sociologically oriented. Andenæs criticized Ross for ignoring the fact that criminal law might have various reasons and goals,279 and Christie argued that Ross’s theory would lead to unreasonable consequences and disproportionately harsh

277 Hauge 1979, supra n. 199 at 166. Hauge also wrote that many of Christie’s ideas were executed in Norwegian criminal policy during the recent decade, which was both satisfying and terrifying. It was satisfying because criminal policy had moved in the so-called humane direction. It was terrifying because some of the ideas were misused. For example, general prevention had become an important part of the whole criminal system, although Christie was critical of it. (Id. at 165–166.) An interesting question, although beyond the scope of this research, would be to ask about the reasons for the changes in criminal policy. It seems that the association for criminal reform and the research conducted in more or less close connection with it had their influence on political decision-making. 278 Alf Ross, “Straffens formål”, TfR 1969, 409–410, 423–424. 279 Johs. Andenæs, “Straffens formål”: Et tilsvar til professor Alf Ross, TfR 1971, 153–155.

211 punishments because it did not pay attention to the social influence of criminal law.280 Ross, nonetheless, maintained his views that the question of the motives and goals of criminal law were categorically of different character281 and that the critical scholars had over-emphasized the role of politics and the ill consequences of special deterrence.282 The problem between the new and the traditional criminal law scholarship related to the more general problem between realism and the “new realism”, which placed values and policies at the center of legal analysis. Ross was interested in the logical connections between problems and concepts, whereas the alternative and critical scholars were more interested in the social and political values and consequences of the legal concepts. Since they regarded law as inherently pertaining to politics, they opined that legal concepts should not be understood without considering their political motives and consequences. Furthermore, Ross’s theory excluded the possibility of general deterrence being the basis of criminal law, which was a central argument of the alternative legal scholarship. The general problem was also seen in Nils Jareborg’s philosophical analysis of values in law, in which he argued that values always reflected the general theoretical background of the analysis.283 According to the new realism, values were neither true nor false but conformed or did not conform to a theory or an ideology. A more comprehensive criticism of traditional criminal law scholarship was Nils Kristian Sunby’s critical review of Johannes Andenæs’s textbook on criminal law. The book, published in 1974, was intended to update the criminal law education.284 Accord- ing to Sundby, however, Andenæs did not pay due attention to all of the relevant changes of the past couple of decades although it was an improvement over the older books. Especially problematic were the sections regarding criminal psychiatry and criminology. In addition, a few significant topics such as the prison institution were neglected, and the effects of punishment were dealt with in a highly abstract manner with a one- sided over-emphasis on general deterrence. Moreover, Andenæs had not considered the class character of criminal law and had also neglected all consideration of values and scholarship.285 Andenæs’s alternative view with Sundby’s more critical view collided in this controversy. Two points are obvious in Sundby’s critique. First, even if Andenæs was a reformist scholar who endorsed the sociological view on criminal law, his text-book was a compromise between alternative and traditional views, and therefore did not take the social aspect far enough. Second, Andenæs did not consider values. This was one of

280 Nils Christie, Ross om straff, TfR 1975, 357–361. 281 Alf Ross, Endnu en gang “straffens formål”: Et gensvar til professor Johs. Andenæs, TfR 1971, 391– 396; Alf Ross, Straffens formål ─ modkritik og replik, TfR 1977, 401–405. 282 Alf Ross, Christie om straffens negative individualpræventive virkning, TfR 1978, 482–489. 283 Nils Jareborg, Värderingar (Stockholm: P.A. Nordstedt & Söners förlag 1975). 284 Johs. Andenæs, Alminnelig strafferett (Oslo: Universitetsforlaget 1974). 285 Nils Kristian Sundby, Strafferetten og dens begrensninger, Lov og rett 1976, 53–56, 63–76, 79–91. Sundby justified his critique on two grounds. First, since Andenæs had monopolistic authority over the scholarship, his views had to be critically reviewed. Second, the practicality of the abstract theory of critical legal scholarship had to be pointed out. (Id. at 51–52.)

212 the main points on which the critical legal scholarship differed from the tradition, and from alternative scholarship as well. The critical legal scholars claimed that all law and legal scholarship, either explicitly or implicitly, was influenced by values, and therefore they had to be taken into account in legal studies. Sundby also emphasized the class character of law, whereas Andenæs’ perspective on society was less conflicted. Sundby’s critique thus brought up the difference between alternative and critical legal scholarship. Whereas alternative scholarship balanced between tradition and new insights, critical scholarship endorsed a completely new view of law and legal scholarship.

4.4 Concluding remarks

The basis of alternative legal scholarship on criminal law was formed in the early 1960s from sociology of law. Studies on the social reality of crime suggested that crime could be a more complex social phenomenon than had previously been assumed. Research approaching crime as a social phenomenon became more common during the sixties, and from the middle of the decade onwards, Scandinavian scholars cooperated on research and participated in associations to change the criminal law. Alternative criminal legal scholarship considered crime as a reflection of social circumstances and power structures. There was also a more radical, Marxist movement in criminology but it was quite a marginal phenomenon. In general, alternative criminologists were not critical scholars, rather representing the opening up of legal scholarship towards social science. In any event, some alternative legal scholars did stress the fact that criminal law was a product of class society and was thus related to the class conflict. The criticism of treatment ideology and the emphasis on certainty and equality in criminal law as well as on the reform of the law and the system of punishment were general social and political trends of the time and not just the business of the legal scholars. Nordic Countries did change their criminal policies following the alternative agenda in the late 1970s,286 but the causes of the change are completely another matter. The scholarship obviously had some influence in this regard, but it is as obvious that it too was influenced by the general critical atmosphere and the political demands of the left. Moreover, in the late 1970s, the alternative scholars began to criticize the neo- classical trend in criminal politics because it had been used to increase the punishments and because its effects on reality had not been taken into consideration.287 Reforms are

286 See, e.g., Annika Snare, Kursändring i nordisk kriminalpolitik, HfKJ 2/1979, 45–56. 287 Ulla Bondeson, Vad är nytt i Nytt Straffsystem? Några kritiska synpunkter på nyklassisk straffilosofi, NTfK 1978, 121–146; Nils Christie, Ny-klassisismen i kriminalpolitikken, NTfK 1979, 5–20. Neo- classicism refers to the criminal policy by which the punishment is measured according to the severity of the crime, not according to the personality of the offender. In the latter half of the seventies, Nordic criminal policy turned towards neo-classicism, particularly in Finland and Sweden, and to less extent in Nor- way and Denmark. (Hauge 1996, supra n. 222 at 315–318.)

213 usually compromises between conflicting opinions, and that was also the problem in the 1970s. Critical scholars were after a more humane criminal policy, and the effort succeeded to some extent. In many respects, alternative criminology and scholarship on criminal law reflected the general approach of critical legal scholarship. Even though views varied between scholars, the main points were often the same. Alternative legal scholarship endorsed the understanding that crime was a social phenomenon caused by social circumstances and defined and conceptualized by law that reflected social power structures. Therefore, crime was to be seen in its social context, and scholars had to be aware of their political biases and values. Critical criminal law scholarship was thus also political scholarship which encouraged arguments about values. The emphasis on policies and value arguments, as well as the endorsement of cross-disciplinary research were both reflections of the changes in society and scholarship and methods in the academic struggle. Critical scholars sought to change the society, but they also pursued academic positions and power over scholarship. Criminal law scholarship also had close contacts with political practice, and the scholars participated actively in the associations for criminal reform. Their studies provided information for reform, but studies were also inspired by the efforts of the associations. In criminal law, thus, the contact between theory and practice was most apparent. This was obviously so because crime was a major part of society and criminal reform was an important social topic in the critical atmosphere of the 1960s and 1970s. Many people, both politicians and social activists, were interested in crime. It thus provided a field of research with a tremendous number of opportunities, a chance to develop new theories and methodologies, and a significant opportunity to participate in contemporary political debates. Both in the United States and Scandinavia, a critical criminology emerged in the 1960s, observing crime as a social phenomenon and trying to change the contemporary system of the administration of criminal justice. The basic ideas were the same; the critical criminology tried to show that the system discriminated against the lower social classes, severe punishments were not effective in preventing crime, and the system constituted and protected social ideologies and the prevailing circumstances. The differences in detail followed the differences in the social circumstances. A major and interesting difference is, however, that Marxist criminology was stronger in the United States than in Scandinavia, even though Marxism had a stronger position in the critical legal scholarship in Scandinavia than in the United States in general. It would be interesting to delve deeper into this question, but it seems that the strong position of Marx- ism in American criminology was a consequence of British influence and of the fact that the American criminologists were more theoretical than their Scandinavian colleagues, who also worked for the ministries of justice and for the reform organizations. Marxism was the backbone of Scandinavian criminology, but the scholars maintained a close connection between political practices and thus avoided extreme arguments, despite the emphasis on abolition.

214

5 Alternative views on constitutional law, 1965─1979

Legal scholars were naturally interested in many practical topics, and on some occasions there were heated debates about some legal problem. In Finland especially, debate raged about the reform of the Constitution in the 1970s. In Scandinavia, however, the debates on constitutional law were not as intense. In Denmark, the constitution was reformed in the 1950s and in Sweden in the 1970s. These reforms did not provoke especially vehement debates among the legal scholars, although politically they were controversial.288 In Norway, the old Constitution of 1814 was still valid in the 1970s; in fact, it is still valid today, but serious debates about the Constitution and its interpretation emerged in the 1960s and 1970s.289 Therefore, in this section I will explore the Norwegian discussion on constitutional law in the 1960s and 1970s. I will concentrate on the discussion of judicial review and the constitutional protection of private property because these were the most controversial topics and they illuminate the dimensions of critical legal scholarship. It seems that two things made constitutional law more controversial problem in Norway than in Sweden and Denmark. First and foremost, the Norwegian Supreme Court had in fact applied its powers of judicial review. In the 1960s and 1970s, no Scandinavian constitution had any explicit mentions of judicial review, but it had been approved in theory or in practice in each of the countries. Norway, however, was the only country where the Supreme Court had invalidated laws.290 Thus, legal scholars contemplated the problem in the 1960s and 1970s. Second, Norwegian constitutional law revolved greatly around Carl August Fleischer, a professor of law and a controver- sialist who had quarrels with many of the prominent figures in the Norwegian academy, whom he accused of bad jurisprudence.291 Fleischer developed a flexible constitutional theory which incorporated the social circumstances and made progressive and reformist interpretations possible. Thus, because of the different constitutional situation and because of the personality of Fleischer, the debates on constitutional law were more heated and critical in Norway than in Sweden and Denmark. The common opinion in Norway in the early 1960s approved judicial review and endorsed the independence of the judiciary. According to Eckhoff, judicial independence was a cornerstone of the legal system. Problems arose, however, as to the exact substance of this independence and the acceptable extent of judicial review because the

288 The Swedish reform is analyzed in detail in Karl-Göran Algotsson, Medborgarrätten och regeringsformen: Debatten om grundläggande fri- och rättigheter i regeringsformen under 1970-talet (Stockholm: Nordstedts 1987). 289 See Herlitz 1966, supra n. 58 at 137–159. 290 Nils Herlitz, Elements of Nordic Public Law (Stockholm: P.A. Norstedt & Söners förlag 1969), 236– 238. 291 For a biographical sketch of Fleischer, see http://snl.no/.nbl_biografi/Carl_August_Fleischer/utdypning (last visited 1.10.2012).

215 impartiality of the courts was to be protected and guaranteed.292 Although a major concern was to find a balance between judicial review and impartiality, the fact that judicial practice reflected political currents was also acknowledged.293 Disagreement arose as to whether the Supreme Court was essentially a political or legal organ. On the basis of his historical researches, Jens Seip argued that the Supreme Court was a political institution and that the idea of neutral judicial decision-making was a mere myth.294 Andenæs criticized Seip for not understanding the context of judicial decision-making which, An- denæs argued, was not political even if extra-legal factors had a certain influence on it.295 Seip responded that Andenæs represented the illusion of neutral legal reasoning and the arrogant attitude of legal scholars whenever a scholar of some other discipline tried to analyze law.296 Andenæs replied once again that Seip had misunderstood his points on judicial interpretation.297 Contrasted were a legal perspective of balanced realism and a historian’s perspective of extreme realism. According to the former, shared by the majority of the legal profession in the 1960s, judicial decision-making was not formalistic logic but a multifaceted process in which many perspectives had to be taken into account. It was nevertheless rational and rather legal than political. Seip, on the other hand, stressed the political context of the decisions and propounded a theory of radical realism in which judicial decision-making was rather political than legal, and in which the decisions were outcomes of political pressures rather than simply being influenced by them. Although supporting the sociological perspective in criminology, Andenæs was closer to the traditional legal scholarship than alternative legal scholarship in constitutional law. Despite his realistic notions, he supported the general notion that judicial decision-making was rational and not simply politics. The question over the political role of the Court brought up the problems regarding the nature of balanced realism in judicial decision-making. Although Seip’s arguments were understood to an extent,298 they were also criticized for being over-statements because judicial discretion fitted within the margins of the rule of law.299 Anders Bratholm noted that the political biases of the judges occasionally decided legal cases but these were relatively rare,300 and in a study on judicial behavior Andenæs and Kvamme concluded that it was difficult to analyze the impact of extra-legal factors on judicial deci-

292 Torstein Eckhoff, Noen refleksjoner om domstolenes uavhengighet, 109, 123–131, 142–46, in Festskrift tillägnad Karl Olivecrona (Stockholm: P.A. Norstedt & Söner 1964), 109–147. 293 Castberg 1964, supra n. 58 at 130–134. 294 Jens Arup Seip, Den norske høyesterett som politisk organ, Lov og rett 1965, 1–2, 15–16. The article was originally published in 1964 in Historisk tidsskrift. 295 Andenæs 1965, supra n. 58 at 23–26; Johs. Andenæs, Grunnlov og menneskerettigheter gjennom 150 år, Lov og rett 1965, 51. 296 Jens Arup Seip, Jus og politikk, Lov og rett 1965, 399–402, 420–423. 297 Johs. Andenæs, Jus og politikk, Lov og rett 1965, 458. 298 Henry Østlid, Rettspleie og politikk, Lov og rett 1966, 118–127. Østlid was a judge who wrote that he was stunned by the response of the legal profession toward Seip’s article because he found it very interesting. (Id. at 122.) 299 Terje Wold, Domstolenes deltakelse i juristforvaltningen, Lov og rett 1964, 394–396. 300 Bratholm 1966, supra n. 62 at 112.

216 sions but they obviously had some influence.301 Moreover, according to Eckhoff the majority of the legal profession felt positively about the fact that judges made law.302 Legal scholars were irritated by the extreme realism of Seip and the fact that a historian intruded into their businesses. The question was also about the use of social science in legal studies over which there was no unanimous agreement. The problem was how far extra-legal factors could influence constitutional interpretation without making it irrational and biased or into politics and without violating the fundamental principles of the Constitution and the rule of law. Hardly anyone supported extreme formalism on the issue, but the majority opined that legal reasoning and interpretation could occur within reasonable boundaries set by the law. The problem was pressing regarding not only legal theory but also practice because it had very thoroughgoing implications for actual cases. One of these problems was the constitutional protection of private property and its social and political consequences. Constitutional protection of private property rights was a serious point of controversy in Norwegian constitutional law in the 1960s. The most prominent spokesman for a flexible interpretation of the Constitution was Fleischer, who elaborated a theory of constitutional interpretation that would make the Constitution into a progressive social force. He claimed that property rights were merely standards, and the legislator could regulate the use of property within reasonable limits without violating the constitution.303 His views were criticized for turning questions of constitutional law into questions of values and for violating legal certainty.304 The more traditional scholars argued that constitutional law required clear, strict, and certain boundaries so that the rule of law could be guaranteed.305 Fleischer, however, also argued that, rightly understood, his theory was important to social development,306 but he was again criticized for bringing economic arguments into legal reasoning.307 To Fleischer, however, the problem of compensation in cases in which regulation caused damages was not as unequivocal as his critics argued.308 There was a clear conflict between conception of property, interpretation of the constitution, and legal argumentation. Constitutional law was changing between the dialectic of the traditional view and the new critical view. The critical view that Fleischer represented saw property as a social thing, not absolutely protected against the

301 Johs. Andenæs & Helge Kvamme, Reasons for Difference of Opinion on Questions of Law: An Anal- ysis of Dissenting Opinions in the Norwegian Supreme Court, 15 Scandinavian Studies in Law 29, 56 (1971). 302 Eckhoff 1971, supra n. 91 at 193, 195. 303 Carl August Fleischer, Tomtemarkedet som juridisk problem, Lov og rett 1965, 348–350. 304 Olaf Trampe Kindt, Ekspropriasjonsartede rådighetsinnskrenkninger over fast eiendom, Lov og rett 1967, 57–60. 305 Id. at 59; Per Odberg, Grunnlovens §§ 97 og 105, Lov og rett 1967, 232–236. 306 Carl August Fleischer, Hva er en ekspropriasjonsartet rådighetsinnskrenkning over fast eiendom? Lov og rett 1967, 257–261, 263–265, 267. 307 Olaf Trampe Kindt, Ekspropriasjonsartede rådighetsinnskrenkninger over fast eiendom, Lov og rett 1968, 79–80. 308 Carl August Fleischer, Friluftslovens § 31 og andre bestemmelser som viser til ellers gjeldende erstatningsregler, Lov og rett 1968, 324–326, n. 7.

217 measures of society for the sake of the public good. The critical conception of property did not completely overthrow the traditional conception, but rather adopted a social perspective on it. With respect to constitutional law, the critical conception endorsed dynamic interpretation in accordance with economic and social changes, changes which were also regarded as valid arguments in legal reasoning. The traditional conception, on the other hand, endorsed the view that legal and political issues were to be kept separate, and the protection of private property was strict and administered by clear rules. For the traditional conception, dynamic interpretation was ambiguous and a threat to legal certainty. Fleischer’s comprehensive theory of constitutional interpretation led him to conclude that the Constitution had to be interpreted in accordance with social changes and the specific circumstances of actual cases, because there was no point in holding on to the principles of natural law which characterized the 1814 Constitution. The Constitu- tion encompassed such a large area of social life that it could not fulfill its functions without a certain degree of elasticity.309 The book, which was originally a brief for the Norwegian apartment construction association, received a relatively positive response, although Fleischer was criticized for expressing subjective opinions in an otherwise theoretically sophisticated book.310 Fleischer’s book was not a radical critique of the legal system but a theory of realistic and dynamic constitutional interpretation, favoring strongly progressive and reformist social planning. Another example of the problems of private property was that of expropriation. The Norwegian law on expropriation was reformed at the late 1960s, the new regulation providing better opportunities for land regulation without full compensation. Audvar Os criticized the new law and supported a theory of full compensation.311 Fleischer, however, supported the will of the legislator.312 Fleischer’s theory was clear at least in cases where legislation supported his views, since the courts were then not to step outside the purposes of the law. For him, it was an important part of the more realistic conception of property that the right to compensation could be withdrawn if the value of the property had risen because of factors not dependent on the owner.313 Fleischer strongly supported the idea of social planning and the reformist social ideology. Since the reformist side considered expropriation and full compensation as hindrances to reform, it was clear that his theories supported easier expropriation and proportional compensation. In

309 Fleischer 1968, supra n. 65 at 77, 88–92, 119–123, 180–203. 310 Fl. Tolstrup, Anmeldelse [Grunnlovens grenser], Lov og rett 1968, 280. See also Anton Koch-Nielsen, Ejendomsrettens beskyttelse i planlægningssamfundet, TfR 1971, 322–351. 311 Audvar Os, Ekspropriasjon og ekspropriasjonserstatning, Lov og rett 1969, 473–480. 312 Carl August Fleischer, Ekspropriasjon og ekspropriasjonserstatning: Noen Bemerkninger til kommuneadvokat Audvar Os’ artikkel i Lov og rett nr. 10 for 1969, Lov og rett 1970, 288–289. For Os’ reply to Fleischer, see Audvar Os, Ekspropriasjon og ekspropriasjonserstatning nok en gang: Et tilsvar til professor dr. juris Carl August Fleischers bemerkninger i Lov og Rett nr. 6 for 1970, Lov og rett 1970, 458– 461. 313 Carl August Fleischer, Husaas-Komitéens forslag til lovbestemmelser om skjønnsordning og erstatningsfastsettelse ved ekspropriasjon, Lov og rett 1970, 30; Carl August Fleischer, Strandlovdommen, Lov og rett 1970, 213, 216 [later referred to as Fleischer 1970(a)].

218 this regard, it is also clear how the critical scholars comprehended the connection between law and politics. For them, law was often politics expressed in legal terms, and the new conception was set to unravel the relationship. In any event, expropriation brought up interesting legal problems. For instance, Andenæs emphasized the role of the judiciary in applying the law of expropriation,314 whereas Eckhoff and Wilberg favored the letter of the law.315 Andenæs was also criticized for conservative legal theory,316 which, according to Andenæs, was based rather on a political than legal view.317 Andenæs’s theories indeed supported his political views, since he was a reformist in criminal law scholarship but more conservative regarding constitutional law. The theories obviously largely corresponded to the political views of the scholar in question. Only rarely did someone note that his theoretical views contradicted his political views. Traditional scholars, of course, saw the connection between scholarship and politics meager, whereas it was the most important thing for critical scholars. Sometimes the political connection was the obvious purpose. Fleischer applied his theory in a case on the use of the Oslomarka, i.e., the natural areas surrounding the capital city of Norway. The problem was whether the owner had the right to build in the area or whether it should be protected as a natural environment. According to Fleischer, there was no point in legal formalism that would allow the owner to do whatever was not forbidden by the law because the problems concerned such an important area. The situation was about protection of a unique natural area, not simply about property rights. Public rights had to be weighed against private economic rights, and when the unique circumstances were taken into account the environment was to be protected.318 Social interpretation of the Constitution did not please the traditional profession, Fleischer once again being criticized for stretching his arguments too far and not having enough respect for legal certainty.319 This time he was also criticized because of his historical interpretation. Fleischer argued that there was no historically established private ownership of the area,320 but historians argued the contrary.321 Indeed, Brækhus commented that Fleischer’s article was so ambiguous and poorly documented and that its conclusions were so flawed that it ought not to have been published.322 The new con-

314 Johs. Andenæs, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975, 272–274. 315 Torstein Eckhoff & Ingeborg Wilberg, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975, 365– 366, 369–370. 316 Jens Haugland, Grunnlov og politikk, Lov og rett 1975, 370–371, 373–374; Bjørn Unneberg, Professor Andenæs og grunnloven, Lov og rett 1975, 377. 317 Johs. Andenæs, Grunnlov, politikere og domstoler, Lov og rett 1975, 380. 318 Carl August Fleischer, Makt og rett: Om sikring av Oslomarka (Oslo: Gyldendal Norsk Forlag 1972), 11, 18–26, 34–43, 134–135, 152–153, 174, 204. 319 Audvar Os, Oslomarka ─ en kommentar til professor Fleischers betenkning, Lov og rett 1973, 439– 442, 444, 446, 451, 455–456. 320 Fleischer 1972, supra n. 318 at 115–134, 158, 186. See also Carl August Fleischer, Oslomarka ─ eiendomsretten til det såkalte “Løvenskiold-gods”, Lov og rett 1972, 194–211. 321 Sjur Brækhus, Eiendomsretten til Nordmarksgodset, Lov og rett 1973, 463–490; Stein Tveite, Misbruk av historie: Fleischer og Nordmarka, Lov og rett 1973, 458–462. 322 Brækhus 1973, supra n. 321 at 490.

219 ceptions of property and constitutional interpretation were easier to sell to the legal profession, but the historical analysis of the situation caused troubles because Fleischer’s interpretation was obviously motivated by his goals. Environmentalism was on the rise in the early 1970s and the new conception of property provided better opportunities for the protection of the environment. Fleischer’s interpretation of history supported his interpretation of constitutional law, both of which conflicted with the traditional view. Despite the criticism, Fleischer continued to build his theories of a more dynamic concept of property by arguing for more dynamic land regulation323 and for a theory according to which the legislator could withdraw from public contracts more easily.324 In each case, however, his arguments were rebutted on the basis that he had placed his own opinions in the place of law.325 Even though his arguments were not radical at face value, they deviated from the tradition to the extent that they were unacceptable to the majority of the profession. Critical scholarship met the needs of reform, but it collided with the tradition. Another problem of private property in which Fleischer actively developed reformist theory was the question of industrial democracy, which was a widely debated topic in the sixties.326 According to Fleischer, it was not rational to assume that the Con- stitution protected a particular kind of economic system. This meant that rights relating to the modern economy were not absolutely inviolable.327 Therefore, he argued, the concept of property should be brought up to date. The rights of the owner would not be completely abandoned, but a system of industrial democracy would enforce the modern concepts of welfare and freedom better.328 Fleischer’s ideas were widely criticized because they were regarded as mixing law with politics and violating the basis of property rights,329 even if Asbjørn Eide understood Fleischer’s ideas from the perspective of so-

323 Carl August Fleischer, Misvisende om den nye ekspropriasjonslov: En kommentar til byråsjef Rolf Hellesylts artikkel i Lov og rett 1973 s. 243 flg. om den nye ekspropriasjonslov, Lov og rett 1974, 219– 226; Carl August Fleischer, Den nye lov om erstatning ved ekspropriasjon av fast eiendom ─ hovedinnhold, bakgrunn og forholdet til grunnloven, 11–13, in Carl August Fleischer, Ekspropriasjon, ulempe, skjønn (Oslo: Universitetsforlaget 1974), 9–34. 324 Fleischer 1972, supra n. 318 at 204–221. 325 Rolv Hellesylt, Om forlatels, C. A. Fleischer, om forlatels! Lov og rett 1974, 228–234; Johs. Andenæs, Er staten som lovgiver bundet av sine egne kontrakter? Lov og rett 1977, 435–452. Fleischer argued that Andenæs’s criticism was so off the mark that it could not be taken seriously. (Carl August Fleischer, Striden om statens kontrakter, Lov og rett 1978, 373.) As a curiosity it could be mentioned that Fleischer and Andenæs had a quarrel within University which ended up in a libel action. The case, however, was settled out of court. (http://snl.no/.nbl_biografi/Carl_August_Fleischer/utdypning, last visited 1.10.2012.) 326 See Aake Anker-Ording, Bedriftsdemokrati: Eiendomsretten og grunnloven (Oslo: Universitetsforlaget 1965). 327 Carl August Fleischer, I hvilken utstrekning er det etter Grunnloven adgang til ved lov, uten erstatning å gjøre inngrep eller fastsette begrensinger i private rettsobjekters eierrådighet? Lov og rett 1964, 247– 248. 328 Carl August Fleischer, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 71–73. 329 Jens Bugge, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 223–226; Bjørn Gustavsen, Be- driftsdemokrati, aksjelov og grunnlov, Lov og rett 1965, 231–233; Per Odberg, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 314–316; Christian P. Platou, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 237; Sverre Thon, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 234–236.

220 cial rights.330 Fleischer, on the other hand, criticized his critics for formalist legal theory and noted that he merely reconsidered the concept of property without abandoning it.331 Fleischer’s arguments suggested that the concept of freedom and welfare should be reconsidered in modern society. Here it is easy to see the connection with the critical argument that values were social constructs, and thus subjective and open to debate. For many of the traditional profession, these ideas were too radical, which explains the general and hostile response to Fleischer’s theories. According to the critical notion, the problem was about conceptualization and interpretation, whereas the traditional view held that the question involved such fundamental premises of the legal system that they could not be left to personal discretion. From the perspective of critical legal scholarship, political arguments were valid whereas they were unacceptable from a traditional perspective. Furthermore, industrial democracy had a heavy socialist connection, which people without socialist sympathies could not tolerate. The difference between traditional and critical scholarship was clear in the debates on industrial democracy. Although traditional constitutional scholarship was aware of the fact that constitutional interpretation changed with time,332 Fleischer criticized it for being restrictive and formalist with respect to property rights333 and endorsed greater freedom from the constitutional boundaries for the legislator.334 Andenæs did not fully comply with Fleischer’s radical arguments, noting that a certain amount of industrial democracy might be possible.335 Fleischer was beyond the margins of the tradition and therefore his opinions were too radical. He resembled American realism in his persistent endorsement of the powers of the legislator over fundamental principles of constitutional law which he considered as natural law. For the critical scholars, since law was a social construct, it had to be treated accordingly. In this persistent defense of social interpretation of the Constitution, Fleischer’s arguments were also similar to those of the critics of the neutral principles. Fleischer was simply more openly and obviously political in his critique than his American colleagues. As we see, at the most basic level the Norwegian debates on constitutional law did not consider the Constitution per se but the nature of the interpretation of the constitution. In the first place, the question was whether judicial review was political or legal. Critical insight held that it was political, and, according to traditional scholarship, it occurred within judicial discretion. The same theme was present in the discussion of the interpretation of the constitution on actual cases, such as expropriation and industrial

330 Asbjørn Eide, Aake Anker-Ordings bedriftsdemokrati, Lov og rett 1966, 34, 37. 331 Carl August Fleischer, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 317–324. 332 See, e.g., Andenæs 1965, supra n. 58 at 35; Frede Castberg, Norges statsforfatning 1 (Oslo: Universi- tetsforlaget 1964), 63; Finn Hiorthøy, Om frihet: Noen betraktninger i et minneår, Lov og rett 1965, 153. 333 Fleischer 1970(a), supra n. 313 at 222. 334 Fleischer 1968, supra n. 65 at 12–13, 77, 91, 119–122, 203, 211, 273; Carl August Fleischer, Prinsip- per for grunnlovsfortolkning, Lov og rett 1969, 441–450. 335 Johs. Andenæs, Bedriftsdemokratiet, eiendomsretten og grunnloven, Lov og rett 1970, 113–138; Johs. Andenæs, Strandlovdommen og den juridiske teori: Noen bemerkninger til professor Fleischers kommentar, Lov og rett 1970, 434–435; Johs. Andenæs, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975, 243–274.

221 democracy. The problem in these respects concerned the constitutional protection of property rights. Fleischer’s realistic theory preferred the public interest and social welfare to private property rights, whereas the traditional theory emphasized legal certainty and fundamental principles of law. There was no formalism, but the traditional scholarship stressed the protection of private rights, and hence a more formalist interpretation of the constitution than the critical scholarship. Fleischer, for instance, placed the highest priority on the changes in society and the political will of the legislator. His alternative theory promoted social planning, public interest, reconsideration of property rights, and material welfare and equality. Many of the fundamental points of Marxist theory were obvious in Fleischer’s scholarship although he did not explicitly support any particular theory. Meanwhile, Scandinavian critical legal scholars were not developing a comprehensive Marxist constitutional theory,336 although they did deal with some contemporary problems, such as conscientious objection337 and the state governance of people’s private lives through anti-terrorist laws,338 and a symposium on Marxism and public law was organized.339 Scandinavian Marxist legal scholars brought up the problems of constitutional law in their analyses of other legal problems and were not concerned over a fundamental reform of the Constitution. The practical application of the constitution was important, not the constitution as such. The Norwegian debates on constitutional law recalled the American debates on neutral principles. Both occasions concerned the question of whether legal reasoning was supposed to be rational and neutral, or whether it ought to conform to social realities. Otherwise, constitutional law was not particularly important for critical scholars either in the United States or in Scandinavia, the scholars being more concerned about its interpretation and practical application. However, through the conception of rights, constitutional law was indirectly significant for critical scholarship.

6 Alternative and critical legal scholarship in the late 1970s

6.1 Development of the critical mood

Alternative and critical legal scholarship developed in the 1960s and started to attract more attention in the early 1970s, when more students and scholars became interested in the critical activities. Old trends continued and new ideas were advanced. Critical legal

336 See Elster 1977, supra n. 177. In Finland, the situation was somewhat different, as will be seen in the following chapter. 337 Nils Kristian Sundby, Militærnekting på politisk grunnlag, Lov og rett 1968, 385–409. 338 Göran Elwin, Den svenska terroristlagen ─ en importerad kuliss, Retfærd 4/1977, 7–26. 339 See Retfærd 4/1977.

222 scholars worked towards changing the society and the nature of scholarship and founded various associations and journals.340 The new trends of the 1970s included the efforts to bring legal aid to people previously unable to obtain it, such as the Norwegian “Juss- buss” project,341 as well as the efforts to gather the theories and studies on legal aid,342 sociology of law,343 critical legal scholarship,344 critical criminal law scholarship,345 and Marxist legal scholarship346 into comprehensive editions available to a wider audience. In addition, scholarship on practical legal behavior became more common,347 and legal scholarship entered fields of citizen activism, such as women’s rights.348 Alternative and critical legal scholarship activities became more common, spreading to cover a vast number of social problems. In addition, people participating in the activities wanted to organize their actions more and to make their studies more generally available. Alterna- tive legal scholarship became common practice and it pursued more practical utility. Moreover, although the 1970s was a time of increased interest in Marxist theory, it was also a time when Marxism was widely criticized. Some legal scholars who in general favored critical and Marxist theory thus sought to distance themselves from orthodox Marxism and develop the theory to make it more productive from a less radical perspective.349 The late 1970s thus meant change for Marxist legal scholarship, because

340 Sundby 1976, supra n. 38 at 10–13. 341 Gunnar de Capua, Juristbussen - redogörelse för ett försök, in Edling & Elwin (eds.) 1973, supra n. 100 at 204–218; Gunnar de Capua, Juss-buss – Et rettshjelpstilbud for “vanlige folk”, in Arild Eidesen, Ståle Eskeland, Thomas Mathiesen (eds.), Rettshjelp og samfunnsstruktur (Oslo: Pax forlag 1975), 72– 94. See also Ståle Eskeland och Just Finne, Allmänhetens behov av rättshjälp, in Edling & Elwin (eds.) 1973, supra n. 100 at 172–203. “Juss-buss” was a project initiated by legal students in Oslo in 1970─1971, the purpose of which was to provide legal aid for under-privileged people, conduct behaviorist research in law, and to give practical education to law students. Scholars participating in the project argued that the Norwegian Lawyers’ Association was hostile toward the project, which revealed the conservative nature of the profession. (Ole Jakob Bae, Progressiv advokatvirksomhet ─ en illusjon? in Bratholm & Sundby (ed.) 1976, supra n. 38 at 156–172; Capua 1973, id. at 215–217.) Juss-buss was an actual project of assisting the poor and providing realistic research and education. The legal profession at large was probably concerned about what might happen to its reputation if students were to give free legal assistance. It also might have been concerned about its power in the field. 342 Ståle Eskeland & Just Finne, “Rettshjelp”: En analyse og empirisk undersøkelse av tradisjonell rettshjelps muligheter og begrensninger ─ særlig for folk som lever under vanskelige økonomiske eller sosiale kår (Oslo: Pax forlag 1973); Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341. 343 Edling & Elwin (eds.) 1973, supra n. 100; Aubert (ed.) 1972, supra n. 99. Norwegian sociology of law was strongly inspired by American legal realism and law and society scholarship in the 1960s. Marxism became more influential in the 1970s. (Jon T. Johnsen, Kritisk juss i arbeidet mitt som rettsforsker, 217– 218, in Modéer & Sunnqvist (ed.) 2010, supra n. 105 at 201–225.) There was an obvious Marxist turn in scholarship in the 1970s. 344 Bratholm & Sundby (eds.) 1976, supra n. 38. 345 Elwin; Heckscher; Nelson 1971, supra n. 267. Here too Marxist theory was more obvious in the revised edition of 1975, supra n. 269, than in the original of 1971. 346 Elwin & Victor (ed.) 1978, supra n. 131. 347 Thorbjørn Axelsen & Arnstein Finset (eds.), Aksjonsforskning i teori og praksis (Oslo: Cappelens almabøker 1973). 348 Tove Stang Dahl, Kjersti Graver, Anne Hellum, & Anne Robberstad, Likhet og urett, in Bratholm & Sundby (eds.) 1976, supra n. 38 at 89–127. 349 Aubert 1976, supra n. 178 at 10–11; Torstein Eckhoff, Jus og politikk, 26–27, in Bratholm & Sundby (ed.) 1976, supra n. 38 at 18–60; Sundby 1976, supra n. 38 at 15. Malt has documented the development of Norwegian critical legal scholarship quite well, describing it partly as a response to the problems of

223 some scholars tried to impose qualifications on it in order to take it out of its original form and others were modifying it to respond to contemporary society better. In any event, the decade was still a prosperous one for alternative and critical legal theory and scholarship. In this section, I will deal with the currents of Scandinavian alternative and critical legal scholarship in the late 1970s. The scholarship expanded at the end of the decade to a considerable extent, and I will provide a general outline of this development up to the 1980s. First, I will take a look at the practical connections of the scholarship, such as legal aid, the rights of the citizen, and feminism. I will then briefly examine some problems of general jurisprudence, the emergence of the distinction between rules and principles, and the development of Marxist legal scholarship. The movement of alternative legal scholarship that culminated in the latter half of the 1970s was a relatively extensive phenomenon, emanating from the changes in society and scholarship and deriving from the same influences, but the differences in theory and detail derived from the interests of the particular scholars. Critical legal scholarship was a radical manifestation of the wider movement.

6.2 The legal profession and the critical mood

Organizing was an important element of the critical legal activities. According to Thomas Mathiesen, a Norwegian scholar of sociological jurisprudence, it was difficult though not impossible to use the law as a tool of social change, but this required, among other things, organized activity in close contact with those in need of the change.350 Al- ternative legal activity was needed because, as Ole Bae noted, there were people whose social situation was not as good as it was supposed to be in a society that was based on human rights and an equal distribution of social benefits and rights. The activities of the alternative jurists, or progressive jurists as Bae called them, aimed at improving their status.351 Alternative legal scholarship focused on the reasons for the gap between law in books and law in action, and their practical work aimed at bridging this gap. Their work increased in the 1960s and early 1970s and intensified in the late 1970s. The practical orientation was needed because the critical scholars saw that law and society shared a fundamental connection. Mathiesen argued that law had effects on society beyond the intentions of the legislator because law consolidated and legitimized the existing social structures and made them seem natural and rational. Alternative theories and scholarship were needed to reveal the legitimizing function of law and to work

scientific orthodox Marxism and the need of the critical scholars to apply their theory in practice. (Gert- Fredrik Malt, Kritisk rettsteori i Norge, Retfærd 7/1978, 40–47, 53–56.) 350 Thomas Mathiesen, Kan juristen arbeide progressivt? 151–152, in Bratholm & Sundby (ed.) 1976, supra n. 38 at 147–155. 351 Bae 1976, supra n. 341 at 156.

224 towards change.352 Although some other legal sociologists criticized Mathiesen’s theory for its materialism, undervaluing of law, and drawing empirical conclusions from its theoretical premises,353 it did describe the nature of the alternative legal scholarship. Critical legal scholars were after a theory that could help to explore the indirect and unseen functions of law and provide tools for criticism. In the latter part of the 1970s, critical legal scholarship stressed the ideological and constitutive elements of law more. However, the theories and studies had to be taken to the practical level, critical scholarship being not enough alone. This meant either grass-roots activity or research on practical matters. Organizing and practical orientation were major trends in the 1970s. Critical and alternative legal scholarship had started mostly as academic movements, but as they acquired more proponents, their research expanded and the project was oriented more toward everyday practice. As noted, the alternative movement in criminal law had already been organized into political associations in the late 1960s. Alternative scholarship on crime had prospered throughout the 1960s and the associations founded at the end of the decade aimed to bring the critical notions into practice. On these occasions, scholars were not satisfied with mere research, wanting to have practical utility for their scholarship and participation in political activities. Organizing thus concerned critical legal scholars and scholarship in general. There were legal movements with practical orientation in the late 1960s and early 1970s, which contributed to critical scholarship and literature and gained a stronger foothold in social matters as the 1970s progressed. Among the organizations were Swedish FiB lawyers who were interested in fundamental rights. There was also the critical law movement in Norway with its general interest in critical scholarship and legal work. It was influenced by the critical sociology of law and transformed from a general endeav- or in legal aid into the Norwegian Legal-Political Association (Rettspolitisk forening). In Denmark, there were the critical front and the law and society movement, which were interested in Marxist theory and sociological jurisprudence.354 In the latter part of the 1970s, these movements founded law journals for critical articles dealing with contemporary social and legal problems. Finland was the forerun- ner, when the Association of Democratic Lawyers founded the journal Oikeus (Law) for critical legal literature in 1972.355 Their Scandinavian colleagues soon followed, and the Norwegian Hefte for kritisk juss (Journal for Critical Jurisprudence) was founded in

352 Thomas Mathiesen, Rett og samfunn: Utkast til en rettssosiologi (Oslo: Pax forlag 1975), 56–58, 62, 66–68, 76–78. 353 Jon T. Johnsen, Materialitetstenkningen i rettssosiologien, Lov og rett 1979, 261–272. 354 Hefte for kritisk juss 3/1976, 1–10 (Ingemar Folke, FiB-juristerna: För folkets rättigheter, HfKJ 3/1976, 3–5; Peter Blume, Kritisk retsvitenskap i Danmark, HfKJ 3/1976, 6–7; Torben Wanscher, HfKJ 3/1976, 8–10); Per Persson, FiB juristerna, Sverige, Retfærd 3/1977, 108–110; Fagkritik-Jura, Århus Universitet, Retfærd 3/1977, 110–112; Øyvind Solberg, Rettspolitisk forening og progressiv juss i Norge, Retfærd 4/1977, 96–98. 355 Helge Rontu, Finlands demokratiska jurister och det internationella samarbetet, Retfærd 4/1977, 99– 103. The Association of Democratic Lawyers was founded in the 1950s but its activities were reformed in the 1970s to meet the needs of the contemporary left. The Finnish case is the topic of the next chapter.

225

1975, and the Swedish Tidskrift för folkets rättigheter (Journal for the Rights of the People)356 was founded in 1977. The Danish Retfærd, established in 1976, was to become a Nordic journal for Marxist legal scholarship. Thus, there were Scandinavian journals for critical legal scholarship in which critical scholars could participate in contemporary social debates and offer their theories on law and society. Retfærd was a scholarly journal including mostly theoretical articles relating to practical problems. The Swedish and Norwegian journals were more directed to the ordinary reader and aimed at dealing with practical matters in an easily accessible style. For example, the journal of critical jurisprudence, a publication of the Norwegian Legal-Political Association, was a small, pamphlet-like journal that contained articles regarding contemporary legal problems, such as legal aid, housing, criminal law, labor law, and minorities' rights. The journal was aimed at reformist politics and was clearly leftist and anti-imperialistic. The plain and unscholarly nature of the essays encapsulat- ed the idea of making them accessible to everyone, not just jurists. The close cooperation of the people working at the Juss-Buss and in the Legal-Political Association made the journal close to the legal problems of ordinary people. It was, after all, these organizations that narrowed the distance between critical legal scholarship and lay people. Critical legal scholarship was not simply a theoretical academic movement, many of its activities actually working for the benefit of the underdog. A part of the reformist project was the studies on legal aid. The sociological and critical legal movement accelerated the interest in studying the real need for access to justice and the consequences of the lack of it.357 In a study on legal aid in 1973, Ståle Eskeland and Just Finne argued that the people most in need of legal assistance had the least opportunity to obtain it.358 The study was an empirical and participatory study based on actual legal problems that showed that people were not aware of their rights or had serious difficulty in obtaining them. The authors applied the methods of critical legal scholarship, namely, Marxist theory and empirical observation, and they criticized the whole legal aid system. Legal aid was mostly a benevolent effort to improve society, but it was also a field of study, providing theoretical opportunities. A purpose of a compilation of studies on legal aid was to examine its function in society and whether it could be used as a tool of social reform.359 Scholars argued that the serious inequalities in legal aid corresponded

356 One issue of Fib-juristbladet was published in 1976, but the name of the journal was changed the year after. The name FiB lawyers follows from the movement of cultural radicalism of the 1960s called “Fol- ket i bild/kulturfront” (“People at the picture/cultural front”), and the lawyers associated with the movement adopted its radical thought into law and legal scholarship. The association is still active. 357 Studies in legal aid were not an innovation of the critical law movement. Problems of legal aid have probably been examined as long as the institution has existed. For instance, there was some discussion about it in Sweden in 1970 when the legislation on legal aid was reformed. See Ulla Jacobson, Likhet inför lagen i kostnadsfrågor, SvJT 1970, 549–558, in which the purpose is to show that legal aid regulation can have undesired consequences. 358 Eskeland & Finne 1973, supra n. 342 at 153, 200. 359 Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341 at 7.

226 with the social class divisions.360 Thus, they revised the concept of legal aid from pas- sive assistance into an active and comprehensive political struggle for social reform.361 Other problems were also observed. Scholars noted that the reform of legal aid did not pay due attention to the actual circumstances of the poor and could not therefore effi- ciently guarantee their right of access to justice.362 Since inequalities in access to justice were seen to derive from the inequalities in society, wide-ranging reforms were needed.363 The critical notion was that not only did the law protect the interests of the rich, but also provided better opportunities for the rich to protect their rights. This notion made the critical scholars assume that the law was systematically biased in favor of the rich, and thus it directed the interest to the structures of law. The critical scholars sought to demonstrate that legal aid was to be understood as a legal mechanism with considerable functions and effects in society, and as a legal tool in organizing and reforming society, not in a traditional, normative sense. Studies in legal aid were sociological studies aiming at revealing the actual situation so that the problems could be realized and corrected. Critical legal scholars were also interested in legal aid because of the new legal ethos. They thought that the legal profession was in general a conservative social force on the side of the upper social classes, but it could become an active reformist force siding with the lower social classes and promoting social welfare and equality. Critical legal scholars wanted to distance themselves from the tradition in various respects. They did not want to identify with the image of the legal profession they had, and they created a new identity according to which the legal profession worked for the poor and the under-privileged, as well as working for a more equal society. In the 1970s, various legal journals were founded to support the critical cause and studies on the law in action increased. Alternative scholarship was regarded as a progressive force that contributed to the social change. In the efforts to criticize the traditional legal thought and struggle toward change, the rights of the people became more interesting to the legal scholars.

6.3 Perspectives on the rights of the citizen

As people in general began to demand more equality and rights, and as scholarship had persistently argued that the law treated people inequitably because of the differences in social status, the rights of the people became more and more significant in the scholar-

360 Erling H. Albrechtsen, Om advokater og advokatsøking, 23–24, 33–34, in Eidesen; Eskeland, Mathie- sen (ed.) 1975, supra n. 341 at 23–71. 361 Id. at 71; Ståle Eskeland, Innledning, 15, in Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341 at 10–22. 362 Jon T. Johnsen, Den norske rettshjelputredningen: En kritisk kommentar, Retfærd 8/1978, 23–25. 363 Helmuth Schledermann, Information eller understrykkelse? Rettsinformation til ressourcefattige, Ret- færd 5/1977, 75.

227 ship. The critical legal scholarship of the 1970s placed ever heavier emphasis on the rights of the citizen although they had already been important to legal scholarship in the 1950s and 1960s. In the 1970s, however, rights became special arguments with which to analyze and criticize the social order. The problem of rights had been crucial to legal scholarship at least since the time of legal realism. The realists had argued that rights were mere metaphysics without a point of reference in empirical reality. In the 1960s, natural law theorists such as Frede Castberg had criticized realism for its lack of interest in rights.364 Marxist theory, on the other hand, was skeptical of the traditional conception of rights because it saw that their purpose was to protect bourgeois society, and it thus focused typically on the materialist and ideological aspects of rights.365 Rights analysis had been of interest to critical legal scholars in the late 1960s366 and, by the mid-1970s, Sundby argued that natural law was still used to legitimize legal phenomena.367 Rights were important to critical legal scholarship, not only because of their social significance but also their theoretical interest. Realism had sought to extract values from legal scholarship, and natural law theory took certain values at face value. Critical scholarship, on the other hand, wanted to expose values and policies into an open discussion in jurisprudence. Scandinavian Marxist legal scholars did not develop a comprehensive theory of rights although there was a need for it368 and there were efforts at doing this elsewhere.369 The problem of rights, however, was that the traditional concept derived from the bourgeois values of the nineteenth century, and it was still presented as natural and rational.370 For instance, with respect to legitimacy, Marxist legal scholars denied the existence of universal categories of legitimacy and emphasized its function in a particular society.371 Critical scholarship concerned the various concepts of rights and their practical expressions, seeking to place their considerations in a context in which the rights could be examined against their functions and origins. The critical understanding was that rights were not universal or metaphysical, but served particular material interests and purposes. Critical theory on human rights was mostly seen in studies concerning freedom of speech and political activity. Critical legal scholars in general became more interested in the political suppression of revolutionary activity and the public efforts to tame the radical political left.372 Political rights were naturally of importance to the critical legal

364 Castberg 1965, supra n. 58. 365 Eide Asbjørn, Menneskerettigheterne i teori og praksis, TfR 1969, 98–99, 103–107, 120–121. 366 Nils Kr. Sundby, Legal Right in Scandinavian Analyses, 13 Natural Law Forum 72–107 (1968). 367 Sundby 1975, supra n. 85 at 353–354. 368 See Asbjørn 1969, supra n. 365. 369 Jószsef Halász (ed.), Socialist Concept of Human Rights (Budapest: Akadémiai Kidaó 1966). 370 Herman Klenner, The Marxist Conception of Human Rights, Retfærd 6/1977, 8–13, 17. 371 Strange Beck, Hanne-Birgitte Jensen, Jørgen Lokdam, Torben Wanscher, Om legalitetsbegrebet i den marxistisk-leninistiske rets- og statsteori, Retfærd 6/1977, 75. This article was a review of a German translation of a Soviet book on the general theory of law and the state. 372 Arbejdsretsgruppen under Fagkritik Jura, Århus: Fysiske blokæder, Retfærd 7/1978, 96–118; Peter Blume & Inger Høedt-Rasmussen, Om kriseret, Retfærd 7/1978, 89–95; Kirsten Gamst-Nielsen, Stats-

228 scholars because free political activity was a precondition of social and political change as well as of their scholarship. Marxist theory stressed the fact that freedom and rights mostly supported the contemporary society, and the state therefore often reacted violently to activities which threatened the existing source of protection. Although the problem was a matter of debate, the critical scholars had their theoretical point of view from which they observed the state actions. General political rights were also interesting in the 1970s, when the problems of human rights especially were brought into the spotlight of legal scholarship. FiB lawyers were established in Sweden in 1972 to promote freedom of expression and publishing, legal aid for the rights of the people, and anti-imperialism. Göran Bodin and Staffan Rylander, who participated in the organization, investigated the limits of the freedom of expression, coming to the conclusion that this right was often ambiguous, which led to uncertainty and arbitrariness.373 Bodin and Rylander studied the gap between law in books and law in action in a historical, sociological, and empirical perspective with a critical theoretical background. Besides the critical pursuit, they also participated in contemporary discussion by focusing much of their criticism to the formulation of the new Constitution.374 The study was thus both critical and political. It advanced various methods in analyzing legal reality and used its findings to point out the need for reform, from the critical point of view of course. Critical legal scholarship was moving from the analysis of the gap between law in books and law in action to the analysis of the reasons for the gap, as well as to analysis of ideology. Critical scholarship thus represented a critique of the value-neutrality of the traditional scholarship, and sought to reintroduce the question of values to legal scholarship. Scholarship was also directed toward other socially important problems. Critical scholars were interested in such things as law concerning labor and housing,375 minority rights,376 and women’s rights.377 Studies on legal aid related to access to justice and equal protection of the poor. Studies on political rights concerned mostly reformist political activity, public opinion-building, radicalism, and freedom of expression, and thus related to the political opposition and critical scholarship. Studies on labor law, housing,

magtens anvendelse af politivedtægten mod politisk aktivitet i Danmark, Retfærd 6/1977, 98–106; Peter Germer, Berufsverbot i forfatningsretlig belysning, Retfærd 6/1977, 87–92. The symposium in Retfærd 6/1977, 87–106, was dedicated to the legal suppression of political freedom, and the symposium in Ret- færd 7/1978, 69–132, was dedicated to crisis law. Blume and Høedt-Rasmussen noted that since on many occasions a crisis was something that threatened the capitalist system, crisis law was sometimes to be understood as a tool in the class struggle, not simply as a legitimate means in situations of political crisis. Hence they criticized the Finnish contribution to the symposium for an overtly narrow concept of crisis law. (Blume & Høedt-Rasmussen 1977, id. at n. 1. The Finnish article in the symposium was Tommi Kivilaakso & Mikko Könkkölä, Krislagstiftningen i Finland, Retfærd 7/1977, 77–88.) 373 Göran Bodin & Staffan Rylander, Yttrandefrihetens gränser: Om rätten till folklig opinionsbildning ─ En praktisk handledning (Stockholm: Wahlström & Widstrand 1974), 40–64, 109–121. 374 Id. at 37. The Swedish Constitution was reformed in 1974. (On the debate on the fundamental free- doms and rights during the drafting of the new Constitution, see Algotsson 1987, supra n. 288.) 375 See the symposium in Hefte for kritisk juss 2/1976. 376 See the symposium in Hefte for kritisk juss 2/1979. 377 See the symposiums in Retfærd 10/1979; Hefte for kritisk juss 3–4/1979.

229 and minorities concerned people otherwise in a less-privileged social position. Although it is impossible to estimate the practical impact of these studies, they contributed more or less to the idea of equality and to the construction of welfare legislation. However, it was especially the studies on women’s rights which were important because they contributed to the rise of a new branch of legal scholarship.

6.4 Critical gender studies in law

Feminist criticism of law also began to attract more attraction in the 1970s. The feminist movement had arisen in the 1960s, and with the emergence of the sociology of law and critical legal scholarship, feminist jurisprudence appeared, focusing on the legal status of the women. Critical gender studies in law established itself as an academic discipline in Norway in the early 1970s and spread rapidly to the other Nordic Countries.378 Its theoretical basis was materialism, with the difference that it placed the heaviest emphasis on the male dominance of society.379 This laid the foundations for scholars interested in the status of women to elaborate a theory to analyze the situation in its legal and social context. The critical feminist movement in law was a part of the critical legal movements and Marxist scholarship, and its theories were relatively similar with the exception of the main focus. Feminist jurisprudence was thus an expression of the rise of the female profession within the alternative establishment. Critical feminist scholars dealt with various legal topics, both theoretical and practical. For instance, they criticized the Norwegian law on equality because it was built on the ideal of equality before law without sufficient account of the actual social situation of women. Therefore, they argued, there ought to have been a law against discrimination against women rather than one on equality between the sexes because the presumption of equality was the biggest hindrance to improvement.380 Jes Bjarup, who also criticized Marxist legal scholarship, argued that the feminist scholars had drawn conclusions from their theoretical premises and exaggerated the need for radical change.381 Since feminist legal scholars used the same theoretical basis as the critical legal scholarship, it faced the same problems. According to critical gender theory, society was structurally biased against women, and thus minimal changes and reforms could not overcome the problem, whereas traditional thought emphasized the legislation that protected women. The difference was in the mode of perception. The connection between Marxism and feminist jurisprudence was obvious on some occasions. For example, Karin Widerberg applied a theory of structuralist Marx-

378 Anne Hellum, Kvinnerett ─ radikal feministisk fagkritik, HfKJ 3–4/1979, 3. 379 Ruth Nielsen, Kvinders retsstilling og materialistisk retsteori, 315–327, in Inger Dübeck, Jytte Lind- gård, Ruth Nielsen, (eds.), Jura og kvinder: Festskrift i anledning af 100-året for kvinders adgang til juridisk embedseksamen (København: Juristforbundets forlag 1975), 314–330. 380 Dahl; Graver; Hellum; Robberstad 1976, supra n. 348 at 91–92, 124–127. 381 Jes Bjarup, Anmeldelse [Kritisk juss], TfR 1977, 99–100.

230 ism in exploring the development of the legal and social status of women in Sweden. However, she had to revise the theory because, she claimed, structuralism was gender- neutral and had a male perspective on society. Despite the switch of perspective, her arguments reflected critical thought. She argued that in order to maintain the development of capitalism, the state had to reproduce hierarchies between the sexes, so that women were subordinated both to men and to capitalism. Her conclusions were also typical of critical scholarship, focusing on fundamental social change. She noted that the formal equality of capitalist society could not produce actual equality. There was thus a need to struggle for a society in which politics, not the economy, would determine the measures of equality, which meant a struggle toward socialism.382 The feminist theory of structuralism was also a theory of fundamental criticism of law because, according to the theory, the traditional legal system was not able to fulfill its own requirements. Feminist theory also sought fundamental social reform. The theory was basically the same as Marxist theory, but instead of capitalist oppression, the emphasis was on gender-based oppression, which nonetheless related to the economic structures. Together with the rising interest in the social problems of women and critical gender studies, particular problems, such as rape, for example, were also brought to the attention of legal research. Bertil Falconer conducted empirical research on rape and its impact on the social status of women.383 Carstensen and Larsen, on the other hand, focused on the ideological and constitutive aspects, arguing that the traditional concept of rape as an expression of individual mental problems and sexual frustration could not explain rape as a social phenomenon. The problem was rather of a structural kind, relating to the economic structure of the society and in particular to the power structure of the genders.384 Structural explanations were popular at the time because they focused on factors outside the individual. According to critical thought, social problems originated in the social and economic structures, and the fault was in the system. The interest in gender studies in law increased as the 1970s approached its close.385 Gender studies had a multifaceted program for its methods and purposes. It sought to reveal the oppressed status of women in society and to tear down the hierar-

382 Karin Widerberg, Kvinnans rättsliga och sociala ställning i Sverige 1750─1976 (Lund University Sweden: Department of sociology of law, Report series 3 –1978), 1–8, 37–42, 67–68, 92, 108–116, 147– 148, 162–163, 218–219, 285–286, 300. In the revised version of 1980, the theoretical part is left out, otherwise the book is basically the same but easier to read. (See Karin Widerberg, Kvinnor, klasser och lagar 1750─1980 (Stockholm: LiberFörlag 1980).) 383 Bertil Falconer, Våldtäktsbrottet, SvJT 1975, 161–207. 384 Gitte Carstensen & Sidsel Larsen, Voldtæktsoppfattelser ─ Præmisser og konsekvenser, Retfærd 10/1979, 49–66. 385 In 1975, at the 100th anniversary of the entrance of women into legal education a festschrift “Legal Scholarship and Women” (Jura og Kvinder), was published, including several articles regarding the legal status of women. (Dübeck; Lindgård; Nielsen (ed.) 1975, supra n. 379). The series for Gender Studies in Law (Kvinderetlig skriftserie) was established in Copenhagen in 1976, and the first “Yearbook of Gender Studies in Law” (Årbog for Kvinderet) was published in 1978. Symposiums for gender studies in law included Hefte for kritisk juss 3–4/1979; Retfærd 10/1979. The literature on gender studies in law and other branches of social science expanded greatly during the latter half of the seventies. The early seventies marked a rise in gender studies in other sciences than law as well. (See, e.g., Politica 2–3/1974, for a symposium on gender studies in political sciences.)

231 chies within the legal system. It favored cross-disciplinary research to obtain various kinds of social data. It stressed the political nature of scholarship and sought to make it openly political, the fundamental purpose being to change the legal system and to emancipate women from their legal oppression.386 Feminist jurisprudence assumed systematic oppression, wanted to expose the myth of apolitical research, and sought to make scholarship openly political. Just like Marxism, it aimed at emancipating the oppressed group from its systemic oppression by changing the system. Ideological and structural factors were important for research that emphasized the critical and reformist aspect of the movements. Critical gender studies in law were an outcome of the liberalization of women, social radicalism, and critical scholarship. The interest in the rights of women and the gender-related social problems arose everywhere hand in hand with the general interest in social oppression and the rights of the underprivileged. Criticism of the social order was targeted at the structures of society because, the critics argued, inequality was inherent in the structures of modern society and the economy. Critical gender studies, along with other projects for specified social problems, were also an expression of the social dissatisfaction. The society, and hence the scholarly activity, endeavored to achieve better consolidation of rights.

6.5 General problems of jurisprudence

The 1960s and the 1970s were a time of marked social change, and this was also seen in the changes in the nature of legal problems and the new regulation that followed. Alt- hough a vast amount of new legislation was enacted, the legislator could not grasp every new legal problem that came up. Problems in the markets and consumer activity raised the need for new methods to deal with them, and legal scholars contemplated various questions. Alternative legal scholarship thus flourished in many branches of law, and became quite popular by the end of the 1970s. Although much of the alternative scholarship was not particularly radical or critical, the following analysis helps us to understand critical legal scholarship in context; the 1970s marked a general change in legal scholarship, and the critical scholarship was an extreme cultural expression of the transformation. Alternative analysis of law evolved for nearly two decades, reaching maturity in the late 1970s. Stig Jørgensen had already noted by the mid-1960s that the expansion of commerce had created new legal problems to deal with, especially concerning equality.387 Many problems of contract law thus interested the legal scholars of the 1970s. Carl Martin Roos, for instance, endorsed a semantic interpretation of legal rules in ac-

386 Anne Hellum, Wenche Kverneland, Kirsten Langseth, Margrethe Lysaker, Kvinnerettslig teori og metode, Retfærd 10/1979, 75–80, 83. 387 Stig Jørgensen, Aftalen som form, TfR 1965, 406–407.

232 cordance with the empirically verifiable facts of the case to make legal decision-making more realistic.388 Although he was criticized for not being specific enough with his new methods of interpretation,389 he worked for a theory of interpretation that would suit the needs of contemporary society better.390 Because of the changed social circumstances, legal scholars often considered an interpretation that would go beyond the letter of the law and find a point of reference from the actual circumstances. Indeed, the new currents of contract law emphasized the importance of the specific circumstances of the case in legal interpretation and legal decision-making. Legal scholars argued that standard contracts should be interpreted against the facts of the case to guarantee consumer protection,391 and that aberration from a contract ought to be more flexible on a case basis.392 Besides developing practical methods for realistic interpretation, scholars also encouraged empirical and politically-oriented research.393 In particular, new legal fields, such as environmental law, provided fruitful topics for alternative use of legal sources.394 The urge for legal studies taking a stand on controversial topics and for realistic argumentation was a general, though not dominating, trend. Radical theories, such as Bolding’s described above, were simply extreme presentations of the general trend. Marxist legal scholars were not generally bothered by specific problems of contract law because they mostly dealt with general issues of jurisprudence or some other more general aspects of law. The Finnish legal scholar Thomas Wilhelmsson, however, argued that the general trend to regulate through general clauses transferred power from the legislator to the judiciary, which was often very conservative. He therefore endorsed studies on the meaning and interpretation of general clauses so that their purposes would not be lost in practical cases.395 The apparent motive behind the realist and Marx- ist scholarship was that law was often meant to protect the weaker party in contractual relations, but practical solutions diverged from this. Scholarship began to pay more attention to the actual cases and solutions in order to analyze the law in action and to reveal the possible deficiencies and inequalities. Scandinavian scholars also criticized the courts, even if they were not their primary concern. Although Scandinavian legal scholars did not attack on the judiciary in such

388 Roos 1972, supra n. 78 at 625–627, 638. 389 Anders Victorin, Dissens och tolkning, SvJT 1973, 57–61. 390 Carl Martin Roos, Behövs det nya grepp i tolkningsläran? SvJT 1973, 153–154. 391 Ulf Bernitz, Utvecklingen mot en standardavtalsrätt I: Standardavtalen i rättstillämpningen, SvJT 1972, 401–455; Ulf Bernitz, Utvecklingen mot en standardavtalsrätt II: Avtalsvillkorslagen, SvJT 1974, 81–134; Jan Hellner, Konsumentskydd och generalklausuler, TfR 1976, 145–167. 392 Anna Christensen, Förutsättningar och misstag, TfR 1973, 311–340; Anna Christensen, Regler om misstag rörande faktiska förhållanden, TfR 1973, 482–513. 393 Jan Hellner, Civilrättsforskningen och framtiden, TfR 1975, 393–401; Jan Hellner, Argumentation de lege ferenda, SvJT 1975, 401–420. 394 Staffan Westerlund, Miljöfarlig verksamhet: Rättstekniska studier av de centrala tillåtlighetsreglerna i miljöskyddslagen på grundval av teori och praxis (Lund: P.A. Nordstedt & Söners förlag 1975). 395 Thomas Wilhelmsson, Kontraktsrättens generalklausuler, Retfærd 3/1976, 28–37; Thomas Wilhelms- son, Kontrakträttens generalklausuler, Oikeus 2/1975, 9–14.

233 a radical way as Finnish legal scholars did,396 the criticism of inequitable judicial decision-making and the call for a realistic interpretation referred to the notion that courts were not a progressive or reformist force. Bolding, for instance, argued that legal education and the fact that judges mostly came from conservative upper class families contributed to this “upper class ideology”. Thus, judicial decision-making was mostly conservative and had to be changed to make it more equitable.397 Traditional scholars, on the other hand, argued that the critics gave a distorted and one-sided image of the courts and could not support their claims with evidence. They argued that, contrary to the critical arguments, judicial decision-making often favored the poor.398 In addition, Carl Hamilton wrote that judges often were in contact with the lower social classes.399 The controversial opinions about the judges reflected the controversies with respect to legal scholarship. Critical scholars thought that the judges favored the upper classes and could not understand the problems of the lower classes, whereas traditional scholars emphasized laws that balanced the problems and the process. Even if the problems regarding the legal process were noted, critical scholars did not often study them. An exception was the Danish Henrik Zahle. During the 1970s, he had criticized the law of evidence by arguing that legal language masked the true meaning of the concepts and thus prevented ordinary people from understanding law,400 and that the social ideology and consciousness affected the interpretation of evidence.401 In 1976, he published his voluminous doctoral dissertation on legal evidence, which was nearly rejected and in which he sought to neutralize the impact of ideologies on the interpretation of evidence.402 In short, Zahle argued that the traditional theory of the law of evidence left considerable room for subjective interpretation and evaluation because it was based on a calculus of probabilities. To correct the situation, he argued, there should be no formal rules concerning either the procedural or material side of the evidence. Rather, the parties to a case should present all the evidence possible without re- striction, and the case should be decided on the basis of comprehensive evaluation of the evidence presented and the behavior of the parties during the whole process.403 Alt- hough Zahle started from the premises of traditional legal scholarship, his theory was a

396 In Finland there was indeed a radical attack on the judiciary, as will be seen in the next chapter. Finn- ish traditional legal scholar Erkki Havansi lamented in a Swedish law review to his Scandinavian colleagues about the radical criticism of the courts and the undemocratic manner the reform was progressing. (Erkki Havansi, Finlands domstolar inför omvälvning? SvJT 1973, 63–78.) 397 Per Olof Bolding, Domarens sociala tillhörighet, SvJT 1974, 459–473. 398 Bertil Adèll, Ej mindre den fattige än den rike, SvJT 1973, 331–340. 399 Carl Hamilton, Domarkårens isolering ─ en enkät, SvJT 1973, 525–528. 400 Henrik Zahle, Om processuel forkyndelse, Juristen 1973, 307–308. 401 Zahle 1975, supra n. 172 at 250. 402 Zahle 2010, supra n. 105 at 77–78. Zahle was an openly leftist legal scholar and held a course on procedural law, the methods of which have been described as an alternative. (Id. at 62, 73–74.) 403 Henrik Zahle, Om det juridiske bevis (København: Juristforbundets Forlag 1976), esp. at 1–4, 126, 138–139, 152–153, 160–161, 230, 244–247, 299–304, 396–401, 409–445, 485–491, 573–586, 641–648, 691–693. It is very difficult to explain the theory briefly because it is very complicated and covers nearly eight hundred pages, and, furthermore, because in order to fully understand it one would have to know a lot about the Scandinavian law of evidence in the 1970s. In any event, his purpose was to elaborate a theory on the evaluation of evidence which would minimize the room for subjective interpretations.

234 kind of fundamental criticism since he criticized the whole basis of the law of evidence and sought to replace it with an alternative system. He noted that ideologies and subjective values had a significant effect on law, but differed from the general trend of critical scholarship by trying to take ideology out from the legal process instead of making it open. In a certain sense, Zahle was a moderate fact skeptic404 because he criticized the traditional notion of the neutral observation of facts. He thought that the traditional methods of evaluating facts were incapable of making objective observations and sought to elaborate a theory that could overcome the problems of these methods. How- ever, Bolding criticized his theory for being presumptive and ambiguous and also leading exactly to the same problems it tried to avoid.405 Criticism was always easy, but constructing alternative theories was not. Nevertheless, Zahle’s fact skepticism reflected the general notion that facts were always related to values, and his critical theory sought to avoid this problem. The problem of facts and values became apparent on several occasions concerning practical legal problems. A problem arose upon a proposition for a foundation for employees to secure better wages. Stig Strömholm argued that the proposition violated the fundamental principles of Swedish law to the extent that if the law was to be enacted, it was to be done in accordance with the constitutional order.406 Other legal scholars did not like Strömholm’s formalist interpretation. Joachim Nelhans opined that Strömholm’s interpretation reflected a conservative world view, and argued that the Constitution should be interpreted in accordance with contemporary society and thus the employee foundation was legal.407 Marxist legal scholar Per Eklund also criticized Strömholm for his conservative natural law theory, arguing that the problem revealed how the economic system determined the substance of the law.408 Fritz Kaijser, on the other hand, supported Strömholm’s view and noted that there were serious legal problems in this regard, even if politically he agreed with Eklund.409

404 “Fact skepticism” was another strand of critique of judicial decision-making by the American legal realism. The other was “rule skepticism”. According to the first, the facts of a case were uncertain to the extent that they could be construed in various ways in order to reach a desirable decision. Despite how certain the legal rules were, the result was thus always uncertain. (See, e.g., Jerome Frank, Law and the Modern Mind (London: Stevens & Sons 1949), viii–ix.) Zahle did not approve extreme fact skepticism because he thought that there were certain rules that had to be followed in deciding the facts. (Zahle 1976, supra n. 403 at 64–65.) 405 Per Olof Bolding, Bevisprövning utan sannonlikhetuppskattning? TfR 1978, 535–538. In addition, Zahle labelled Eckhoff, Ekelöf, and Bolding as the representatives of the Swedish-Norwegian theory of law of evidence that was, in his view, the dominant theory, and to which his theory was an alternative. (Zahle 1976, supra n. 403 at 230, 485, 648.) Bolding, on the other hand, did not think that this was true because there were differences in the theories of the three scholars. (Bolding 1978, id. at 530.) 406 Stig Strömholm, Förslaget om s.k. löntagarfonder i rättslig belysning, SvJT 1976, 468. According to Strömholm, general rules of expropriation and taxation did not apply to this situation. Therefore the question was of fundamental principles of law implicitly protected by the Constitution. 407 Joachim Nelhans, De Meidnerska löntagarfonderna i Strömholms rättsliga belysning, SvJT 1976, 649. 408 Per Eklund, Juridiken som samhälleligt styrmedel, SvJT 1976, 586–588, 594. 409 Fritz Kaijser, Om de s.k. löntagarfondernas grundlagsenlighet ─ ett genmäle, SvJT 1976, 650–651, 654–656.

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Various problems arose in this brief debate. Strömholm did not take a stand on the relation between law and power. He regarded the protection of private property as of such importance for the legal system that it was to be constitutionally protected. Nel- hans, on the other hand, emphasized different aspects. For him, the rights of the workers in a joint stock company were equal to those of the stock holders and had to be protected too. From the Marxist perspective of Eklund, the problem represented the struggle between social, political, and economic power. He saw that law was an outcome of the struggle and so was legal scholarship. Critical legal scholars stressed the connection between law and politics and the fact that scholars often reproduced the status quo if they were not aware of the political element in law and legal scholarship. The fundamental differences in interpretation between the critical and traditional followed the fundamental differences in perceiving the problems. For alternative scholarship, the relationship between law and personal biases was of fundamental importance. Torstein Eckhoff, who could be defined as a sociological scholar and a neo-realist, noted that it was obvious that personal biases affected judicial decision-making and legal scholarship but it was difficult to specify the degree and nature of the impact.410 Ole Krarup presented a somewhat more radical tone in his criticism of judicial decision-making, arguing that the courts could often reach their decision arbitrarily and then present it in rational terms. The extra-legal reasons behind the decision were camouflaged by legal rhetoric and the decision was simply written in formalist terms to appear neutral and legally sound.411 Since Krarup’s critique was based on an actual case where he was one of the representatives of the losing side,412 it is quite easy to understand his frustration. Nevertheless, the critical opinion was that judicial decision-making was mostly personal and the traditional methods permitted the courts to hide the real motives of a decision behind the legal language. Although many legal scholars held realist notions on the issue, radical criticism was rare. The problem of the nature of law and legal scholarship remained significant, and in the late 1970s, several efforts to elaborate comprehensive conceptions of it were made. In general, scholars were interested in alternatives to traditional scholarship so that legal studies could contribute to the general policy-making.413 More theoretical analyses were also popular. Lauridsen sought to construct a general doctrine of jurisprudence by reforming the tradition,414 and Sundby and Eckhoff constructed a systemic

410 Eckhoff 1976, supra n. 349 at 18, 26–27, 47–49, 56–57. 411 Ole Krarup, Om retlige og begreber retsgrundsætninger, Juristen og økonomi 1979, 461–465, 475. 412 The article considered the Christiania Case of 1978, which concerned the status of the free town of Christiania in Copenhagen, which had been founded in the early 1970s as a free town area. Krarup was one of the representatives of Christiania in the case, in which the Danish Supreme Court eventually enti- tled the state to alter the conditions it had provided for the city in 1971. However, the state did not intrude in the city administration, probably because of the public support for the town, and has let the city flourish since. 413 Staffan Westerlund, Rättsvetenskap inom tvärvetenskaplig forskning, TfR 1976, 117–124. 414 Preben Stuer Lauridsen, Retslæren (København: Akademisk forlag 1977). In a critical review of the book, Jareborg argued that Lauridsen did not give an accurate account of previous legal theory, was ambiguous with his words and concepts, concentrated on Danish discussion, neglected many theories of law,

236 theory, according to which law was a part of the social system.415 In 1977, Danish sociological legal scholar Jørgen Dalberg-Larsen published his massive study Retsviden- skaben som samfundsvidenskab (Legal Scholarship as a Social Science), in which he analyzed the efforts to bring jurisprudence closer to social science during the previous two hundred years and concluded with the recent debates on the problem. According to him, changes in society, the economy, politics, and scholarship caused new kinds of legal problems and thus new needs for legal scholarship, which therefore had to participate in political discourse, and yet retain its neutral, even scientific nature. Thus, in order to respond to contemporary problems but remain neutral and rational at the same time, legal scholarship had to adopt the methods of social science without however completely abandoning traditional doctrinal analysis.416 Dalberg-Larsen’s analysis was a synthesis and combination of the recent, and older, efforts to integrate social science into legal scholarship and make it more realistic. He conducted a thorough examination on the issue but did not bring much new insight to it. Strömholm thus criticized him for not being constructive and argued that social sciences were only rarely useful to legal scholarship.417 The situation had not changed much during the decade of debates. There were still those who argued that elements of social science had to be included in legal scholarship in order to make it correspond with reality and to make it more “scientific”. Then there were those who thought that legal analysis was mostly doctrinal and should not be mixed with politics or social science because otherwise the scholarship would lose its rationality. According to the traditional view, the social sciences were only of very limited use to legal scholarship. Traditional and alternative legal scholars perceived legal problems differently and thus provided different answers to them.

6.6 The rules-principles distinction

During the debates on the nature and methods of legal scholarship, theoretical problems with practical relevance were also discussed. One of these was the construction of a legal rule and its specific meaning in actual situations. This is important from a modern perspective because the origins of the distinction between legal rules and principles in Scandinavian legal scholarship can be seen in it. Scandinavian legal scholars naturally followed international trends, but they adapted the literature to their context and shaped

and ignored several interesting problems. (Nils Jareborg, Litteratur [Retslæren], TfR 1979, 333–340.) Lauridsen replied that Jareborg had misunderstood his points. (Preben Stuer Lauridsen, Kommentar til en anmeldelse af “Retslæren”, TfR 1979, 598–603.) 415 Torstein Eckhoff & Nils Kristian Sundby, Rettssystemer: Systemteoretisk innføring i rettsfilosofien (Oslo: Tanum-Norli 1976). 416 Jørgen Dalberg-Larsen, Retsvidenskaben som samfundsvidenskab: Et retsteoretisk tema i historisk og aktuel belysning (København: Juristforbundets forlag 1977), esp. at 21–27, 476–477, 491–503, 534–549. 417 Stig Strömholm, Hur många rättsvetenskaper finns det? TfR 1978, 625, 644, 646, 653.

237 the theories to fit their needs. The problem thus illuminates several important aspects of the alternative legal scholarship of the 1970s. As noted, the Danish legal philosopher Alf Ross was considered the most influential legal theorist in the 1970s. Regarding the conception of legal rules, too, it was Ross’s semantic-logical analysis of the structure of legal norms418 that the young legal scholars attacked. The young Norwegian legal scholars Nils Kristian Sundby and Ole Rømer Sandberg were not pleased with Ross’s deontic analysis of norms, arguing that he had been unable to construct a concept of legal rules which was realistic and defini- tive in various situations.419 Alternative legal scholars abhorred logic that disregarded actual circumstances and focused on the normative aspects of legal rules. Even though Sandberg’s and Sundby’s analysis was philosophical, it nonetheless obviously sought to place legal rules in a more social context. The interest in legal sociology contributed to the need to create a concept of the legal rule that would fit into multi-disciplinary research and the social reality. Thus, there were problems regarding rules, their application in adjudication, and their explanation in legal research. Sundby had developed his conception of norm in 1974. He also elaborated a distinction between legal rules and principles which he then called “guiding standards” (retningslinjer).420 The construction of the concept of legal rule and its particular meaning in actual cases thus meant the beginning of the discourse on legal rules and principles and their significance in judicial decision-making.421 The problem related to the debates on legal reasoning and the use of arguments on facts and values.

418 Alf Ross, Directives and Norms (London: Routledge & Kegan Paul 1968). 419 Ole Rømer Sandberg & Nils Kristian Sundby, Språk og direktiver, TfR 1970, 384–439; Ole Rømer Sandberg & Nils Kristian Sundby, Direktiver og logikk, TfR 1971, 17–68. Lauridsen criticized the criticism of Sandberg and Sundby. (Preben Stuer Lauridsen, Kommentarer til et normbergeb, TfR 1972, 99– 111.) 420 The word principle was not originally applied because it was used in so many different connections. Therefore, Sundby used the Norwegian word retningslinje to describe principles in legal decision-making. In an English article, Eckhoff used the term guiding standard which was, according to him, the most appropriate English translation for retningslinje or German Richtlinie. (Torstein Eckhoff, Guiding Standards in Legal Reasoning, 29 Current Legal Problems 205, 206–207 (1976).) In Finland, the term “guiding standard” was first translated as oikeusohje (Timo Konstari, Harkintavallan väärinkäytöstä: Tutkimus tarkoitussidonnaisuudesta hallintoviranomaisten harkintavallan rajoitusperiaatteena (Helsinki: Suomalai- nen lakimiesyhdistys 1979), 68), and later as suuntaviiva (Aulis Aarnio, Laintulkinnan teoria (Juva: WSOY 1989), 79). Eriksson used the Swedish terms riktlinje and princip. (Lars D. Eriksson, Om olika argumentationsmodeller, JFT 1979, 35–37.) Since then, however, the word principle (periaate) has become the normal term. 421 The discussion on legal principles is commonly linked to the names of Ronald Dworkin and Robert Alexy. In the late 1960s and early 1970s, it was particularly Dworkin whose literature stimulated the discussion in the Nordic Countries, and the scholars commented upon his work while elaborating their ideas on legal principles. Robert Alexy, a German, entered the stage later, but in Germany there seem to be deeper roots for the discussion on principles in judicial decision-making. The pioneer was Josef Esser, whose first contribution to the subject was probably his book of 1956 (Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (Tübingen 1956).) This, however, is not within our ambit. Oddly enough, there seems to be no reference to Esser in Scandinavian legal literature on principles in the 1970s, although there were references to him in other connections. This raises the interesting question of where the most significant influences to Scandinavian legal scholarship came from. It seems that during the first two postwar decades, influences came mostly, in addition to Scandinavian literature, from the United States and England, and since the mid-sixties Germa-

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The problem of rules and standards related to the nature of judicial decision- making. Sundby argued that there were rules that gave the solution for a legal problem directly, and there were also guiding standards which merely indicated the factors which were essential in deciding the case and provided arguments for the decision. A conflict between rules was decided by prioritizing them, whereas a conflict between guiding standards was decided by weighing the arguments the standards invoked.422 Eckhoff also emphasized the role of the guiding standards, writing that a judicial decision could always be made to appear as a logical deduction, even if it in fact was arbitrarily made. Therefore, the concept of guiding standards could help in understanding the particular factors in legal reasoning.423 Sundby and Eckhoff used the concept of guiding standards in pointing out the inability of rules to provide a definite solution in a particular case and the inevitability of interpretation and evaluation. To them, guiding standards were legal standards which laid out the relevant factors of a case and the arguments pertaining thereto. The standards were thus theoretical gates through which one could bring social data into legal arguments while keeping their nature legal. The need for the concept of guiding standards divided legal scholars. Lauridsen argued that the distinction was inconsistent and did not bring much new to the already- existing distinction between clear rules and rules that were open to interpretation.424 Sundby replied that guiding standards pointed out the facts which were relevant in reaching a decision, and vague rules merely completed them.425 Nils Jareborg, on the other hand, argued that guiding standards were unclear and useless in practical reasoning,426 to which Eckhoff replied that they were useful because they pointed out relevant facts and values which otherwise would have been missed.427 It is obvious that more ny made some kind of “come-back” in Scandinavian legal literature, although it never acquired the significant position it had had before the War. This has also been Strömholm's view. He writes that there was nothing particularly new in German legal scholarship during the first twenty years after the War, and the interest seems to have arisen when German scholarship reoriented itself theoretically. (Stig Strömholm, Anmälan [Rechtsystem und Rechtsdogmatik], SvJT 1975, 295–296.) One should not, of course, exaggerate or downplay the significance of any particular country, because different scholars were influenced by different sources. There clearly was a shift in influence, but it was not complete. In any event, it seems that the modern theory of principles in legal decision-making has two branched roots. The origins of the Dworkinian theory are in the American jurisprudence of the 1950s and 1960s. On the other hand, there is the German theory which also has its origins in the 1950s. These two branches then collided in the 1970s and 1980s. The purpose here is not to trace the origins of the theories of legal principles, however, but to analyze the meaning and purpose of the principles issue for the legal debates of the 1970s. In addition, the theme was brought up in Norway by Ragnar Knoph in 1939 (Ragnar Knoph, Rettslige standarder: Særlig grunnlovens § 97 (Oslo: Grøndahl & Søn 1939)), which was widely read in Scandinavia. 422 Sundby 1974, supra n. 108 at 190–306, esp. at 197–204, 254–262, 273–274, 285–287. Eckhoff had brought up problems regarding guiding standards in judicial decision-making in 1971 without, however, any detailed analysis. (Eckhoff 1971, supra n. 91 at 16, 24–25.) 423 Eckhoff 1976, supra n. 420 at 205–208, 214–218. Sundby and Eckhoff stressed guiding standards in their systemic theory of law. (Eckhoff & Sundby 1976, supra n. 415 at 128–156.) 424 Preben Stuer Lauridsen, Om jus og normer, TfR 1978, 125–128. 425 Nils Kristian Sundby, Sondringen mellom regler og retningslinjer ─ en replikk, TfR 1978, 140–145, n. 7. 426 Nils Jareborg, Regler och riktlinjer, TfR 1979, 387–388, 394–395. 427 Torstein Eckhoff, Retningslinjer og “tumregler”, TfR 1980, 152–163.

239 traditional scholars were interested in definite concepts and clear theories, whereas alternative scholars were interested in the relationship between argumentation, interpretation, and social circumstances. Since guiding standards emphasized the circumstances of a particular case, they interested legal scholars who stressed the role of values and policies in judicial decision-making. Guiding standards were both a way of pointing out how personal biases did in fact influence legal reasoning and a method of getting policy considerations into legal argumentation in a controlled and orderly fashion. Aubert, for instance, brought a Marxist perspective to the issue, arguing that the influence of values entered law through legal standards. In criminal law adjudication, values played a role when, for example, a judge had to decide whether the accused posed a threat of forthcoming criminal behavior, and thus criminal adjudication was not simply deductive logic. In addition, he wrote, there were many open standards in law, such as “the benefit of a child”, which all left room for interpretation and values.428 Furthermore, Sundby had endorsed thorough analyses of the legal system in order to change it429 and an analysis of the still relevant natural law in contemporary law,430 and was also actively involved in critical legal scholarship.431 Guiding standards thus suited his efforts to make legal scholarship more realistic and social well without however transforming it into social science or politics. The distinction between rules and principles emerged at a time when strict legal positivism was criticized and the need for a social theory of law was serious. The distinction thus corresponded with the idea of constructing the concept of a norm in a way that would be accordant with the functions of law in society. Principles were a way to avoid strict legal positivism and natural law, and brought rationality into legal reasoning. As the awareness of discretion in judicial decision-making had increased, it became necessary to develop a theory that would bring order into legal reasoning. Furthermore, principles made it possible to bring social data and policy considerations into law through legal discourse while keeping the discourse “legal.” With principles, one could criticize judicial decision-making, strict legal positivism, and natural law without however trashing law and legal scholarship from a purely subjective perspective.

6.7 Marxist legal scholarship in the late 1970s

During the 1970s, Marxist legal scholarship had developed into a lively literature, and a law journal was founded to publish Marxist legal literature. The scholarship, however, was not very innovative, mainly simply analyzing legal phenomena from a materialistic perspective and pointing out the connection between the economic system and the law.

428 Aubert 1976, supra n. 178 at 20–22. 429 Sundby 1973, supra n. 109 at 714–715. 430 Sundby 1975, supra n. 85 at 343–344, 353–354. 431 Sundby 1976, supra n. 38 at 9–17.

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Not surprisingly, then, Lauridsen criticized Marxist legal scholarship for being merely a theory of law and not providing tools for analyzing fundamental legal concepts, nor being capable of providing the means of knowing what was valid law or how legal problems ought to be solved.432 Furthermore, as we saw, the 1970s was in general a turn towards more conservative social politics. The combination of scholarship and politics had always been problematic, and the change in the times only made the situation hard- er.433 Marxist legal scholars had to reorient their scholarship to find more relevance in the academic and practical world. Many of the young critical legal scholars who wrote articles in the early 1970s completed doctorates later in the decade, and their theoretical orientation often provided a background for the more comprehensive studies. Moreover, Marxism had become a jurisprudential school, which meant that its proponents talked more about its theories and concepts. The late 1970s thus meant a significant development for Marxist legal scholarship. Dag Victor was one of the first to contemplate the potential of Marxism in legal scholarship. His doctoral dissertation from 1977 dealt with the old problem of whether legal scholarship could be regarded as science. According to him, law was a system within the social system. The legal system was also, first, a structure consisting of various sub-structures, such as social ideology, language, and speech, and second, both an ideological and social system. Law was indeterminate, but because of the structural connections legal rationality was always system-bound. Thus, social ideology was more important than individual ideology, and legal scholars had to be aware of the social ideology in order to make legal scholarship more “scientific”.434 Victor was distancing himself from orthodox, materialist Marxism and was moving toward a structural, systemic theory. The criticism of the possibility of scientific objectivity and the emphasis on the connection between ideology and law was evident. Victor’s structuralist theory was an effort to combine Marxist theory of law with the recent legal debates and to adapt it to a theory of law and legal scholarship. The theory brought up interesting questions on the nature of legal scholarship and Marxist legal scholarship. Traditional scholars did not pay much attention to the book.435 Marxist scholars, however, were more interested in it, and their responses illuminate the controversies within the school. Peter Blume criticized Victor for bourgeois legal scholarship, noting that Victor had not considered dialectical analysis of the development of legal scholarship, had an idealistic conception of scholarship, and had detached his theory from social reality.436 Victor replied that Marxism was not simply materialism, and because there was no uniform basis for it, there was no point in trying to create one interpretation but rather to construct various interpretations. Furthermore, Victor argued, the theory explained false consciousness, covered the historical context

432 Lauridsen 1977, supra n. 414 at 110–112. 433 See supra notes 191–193 and accompanying text. 434 Dag Victor, Rättssystem och vetenskap: Studier kring en analysmodell för ideologiska system (Stock- holm: P.A. Norstedt & Söners förlag 1977), esp. at 13–17, 102–126, 194–195, 203–232, 261–267. 435 Tore Strömberg, Litteratur [Rättssystem och vetenskap], SvJT 1978, 135–138. 436 Peter Blume, Retsvidenskabens problematik, Retfærd 8/1978, 100–104.

241 of legal phenomena, analyzed the reciprocity between the economy and law, was neutral with respect to the models of interpretation, and was aware of the difference between perception and analysis.437 Victor had diverged from economic determinism and sought to place the theory into a more complicated framework, but the more orthodox Marxists thought that he was giving in to the traditional legal scholarship. The time had come to specify the premises of Marxist theory, since it had been criticized for its economic determinism and for turning legal scholarship into ideology. Critical legal scholars were aware of the deficiencies of their theories, and began to develop them further. Marxism as such was not yet out of fashion; it was just to be modernized. Sociology of law was also a context in which Marxist theory had significance. The Swedish Håkan Hydén conducted a thorough analysis of the social functions of law from a Marxist perspective in his doctoral dissertation, Rättens samhälleliga funktioner (The Social Functions of Law). He also began from the premise that law was in an elementary relation to society. The purpose of law was to mediate the fundamental functions of society, namely, production, distribution, and consumption, as well as the practices which executed the fundamental functions, meaning the economy, politics, ideology, and scholarship. Thus, law reproduced the fundamental social functions and made them seem natural. It also had an independent function, but this was preconditioned by the fundamental functions.438 Hydén relied heavily on Althusserian theory, representing thus a structuralist interpretation of Marxism. Although economic factors were emphasized, they and law existed within a complicated system of social structures. The theory was somewhere between legal sociology and theory, and involved many contemporary legal topics. In the pursuit of a vital critical theory of law, critical scholars became more interested in the relevance of Marxist theory to modern law and legal scholarship. The Swe- dish scholar Anders Fogelklou noted that Marxism could be merely used in partial criticism of specific branches of law.439 The Finnish scholar Markku Kivinen criticized Fo- gelklou’s analysis because the relations between the rule of law and the form of law on the one hand, and between historical materialism and criticism of political economy on the other, were lost. Hence the meaning of criticism was also lost.440 In the late 1970s, Marxist legal scholars began to debate the potentiality and methods of critical theory. Since Marx himself never wrote a specific theory of law, the construction of such a theory from his voluminous literature was difficult and required interpretation. In a comprehensive treatise on various forms of Marxist theory, Fogelklou analyzed the critical potentiality of Marxism and its possible consequences. After examining the theories of Pashukanis, Hegel, and Marx, he noted that the theory was relatively ambiguous as to the ways the revolutionary utopia was to be achieved. Marxism was

437 Dag Victor, Kommentarer i anslutning til en anmälan, Retfærd 8/1978, 109–116, 122. 438 Håkan Hydén, Rättens samhälleliga funktioner (Lund: Studentlitteratur 1978), esp. at 16–32, 83–88, 120–122, 127–134, 195–202, 214–217, 235, 364–379. 439 Anders Fogelklou, Marx och rättsteorin, Retfærd 7/1978, 6–28. 440 Markku Kivinen, Vad handlar Wajdas film om? Randanmärkningar till Fogelklous artikel i Retfærd nr. 7, Retfærd 8/1978, 94–98.

242 skeptical of changes through law, and thus its revolutionary potential was meager.441 Fogelklou’s interpretation was appreciated in general, although it was noted that he did not pay attention to the difference between political and theoretical aspects of the theories.442 The purpose was to contribute to the contemporary efforts at sorting out the relevance of Marxist theory to modern jurisprudence by analyzing it and its interpretations in detail. The intention was obviously to understand the various forms of Marxist jurisprudence and to contribute to the understanding of the basis of critical theory. Despite the rigorous examination, Fogelklou’s contribution to critical scholarship was rather in the fact that it exposed the differences between varying interpretations. Three young Finnish critical legal scholars, Eero Backman, Markku Kivinen, and Juha Pöyhönen, argued that, despite the respectful work, the book was full of misinterpreta- tions and flaws. They argued that Fogelklou was ambiguous with his concepts, neglected several relevant problems, and did not paid due attention to the actual meaning of Marx’s writings.443 As the theorizing about Marx went further, differences between the scholars became more evident. Scholars disagreed on the interpretations, depending on their reading and their scholarly ambitions. Finnish scholars were more optimistic on the potentiality of Marxist and Soviet theory than their Scandinavian colleagues. Never- theless, scholars did not want to reduce Marxism to economic determinism or total criticism, but wanted to sort out its particular meanings and usability in constructing a critical legal theory. The dialogue between traditional and Marxist legal scholarship also became more serious when the critical scholars began to explicate their theoretical foundations. Tor- ben Wanscher elaborated a theory of Marxism, which focused on the various aspects of society. According to him, it was important to understand the social totality that came into being through the dialectics of the history of social conflicts. Since a scholar was both a product of and an actor within the society, and law was partially subjected to and relatively autonomous of the social totality, it was important to study the aspects of the functions of law within the various social sectors and to criticize the difference between the ideal and the real.444 Here, too, the purpose was to point out the nuances of critical theory and the fact that one should not focus simply on economic repression. Reflecting the retreat from orthodox Marxism and determinism, many scholars began to view law as an outcome of the dialectical history of class conflict, not just a tool of oppression. Class conflict was in any case a major part of Marxist legal theory. It was also central to Wanscher’s historical study on the freedom of assembly of organized workers in Denmark in the 1870s. Wanscher sought to indicate that the freedom of assembly was restricted beyond the constitutional boundaries because of political motives, and that the courts had legitimized this practice. Class conflict was thus an essential aspect in defin-

441 Anders Fogelklou, Den orättfärdiga rätten: En studie över Hegels rättfärdigande och marxismens kritik av den moderna rättsordningen (Stockholm: P.A. Norstedt & Söners förlag 1978). 442 Daniel Tarschys, Litteratur [Den orättfärdiga rätten] SvJT 1978, 694–696. 443 Eero Backman, Markku Kivinen, Juha Pöyhönen, Objektiv Marx-tolkning? Retfærd 11/1979, 94–108. 444 Torben Wanscher, Marxistisk videnskab som aspektvidenskab, Retfærd 7/1978, 29–38.

243 ing the limits of fundamental rights.445 The point was the historical dimension of the dialectics of the class conflict in relation to law. The critical scholars thought that the gap between law in books and law in action followed from the class conflict and was manifested in the actions of the public authorities. Through its various applications, Marxist legal scholarship sought to point out the problems and biases of law and its ideological and social functions. Although Marxism was mostly of interest to the Marxists themselves, scholars outside the school also criticized it. In his alternative interpretation of Scandinavian legal theory,446 Jacob Sundberg criticized the critical enterprise for being a scholarship of power and lacking a concept of law. He argued that Marxism was ideological scholarship, falling into the same failure it criticized traditional legal scholarship for.447 Alt- hough Dalberg-Larsen argued that there were many differences between Soviet and Western Marxist legal theory,448 Sundberg’s criticism indicated that the emphasis on class struggle and the absolutist conception of “just” society often led Marxist scholars to ignore the fact that in the criticism of the ideological function of traditional law they missed the other side of the coin. Critical legal scholarship was critical by definition, and it was much more difficult to construct an alternative theory of law that could overcome the problem of values. Criticism was at the heart of Marxist legal scholarship, but at the end of the 1970s it had been interpreted and developed in various directions. Marxist legal literature was expanding, the pages of Retfærd were filled with articles, and scholars were using it as a basis of their theories in more comprehensive studies. Nevertheless, there was no unique or even a systematic theory of Marxist jurisprudence. At the end of the decade, however, the Finnish legal scholar Lars D. Eriksson was finishing his theory, which also held that the relationship between law and productive relations was many-sided and complex, but that ideology always imposed boundaries on law.449 In 1980, he published his doctoral dissertation Marxistisk teori och rättsvetenskap (Marxist Theory and Legal Scholarship) which consisted of his thirteen articles published in 1966–1979 and a conclusion summarizing his arguments. In short, his theory emphasized the historical and sociological aspect of a particular legal system and the difference between the real and

445 Torben Wanscher, Forsamlingsfriheden og “fælledslaget”: Studier til belysning af statens fastlæggelse af grænserne for arbejderbevægelsens forsamlingsfrihed 1872─1874 (Århus: Modtryk 1979), esp. at 5–9, 23–47, 56–67, 129–179. 446 According to Dalberg-Larsen, contemporary Scandinavian legal theory revolved around the concepts of legal realism and analytical philosophy, but Sundberg distanced himself from these notions in many ways. (Jørgen Dalberg-Larsen, Retskilder, naturret og socialisme, TfR 1979, 480.) Sundberg seems to have been at the other extreme of critical theory. He was highly critical of the nihilism of realism and the socialist ideals it led to, whereas the other extreme, called here critical legal scholarship, endorsed the socialist ideals in particular. 447 Jacob W.F. Sunberg, fr. Eddan t. Ekelöf: Repetitorium om rättskällor i norden (Malmö: Studentlittera- tur/Akademisk förlag 1978), 191–285, esp.at 194–198, 224–227, 258, 268–271. 448 Dalberg-Larsen 1979, supra n. 446 at 488. 449 Lars D. Eriksson, Utkast till en marxistisk jurisprudens, Retfærd 11/1979, 40–54. Eriksson’s theory was of course much more complicated, but we cannot delve any deeper into it here. Marxist legal scholarship in Finland will be dealt with in more detail in the next chapter.

244 the possible. This criticism revealed the ideological aspects of law and breaches between the ideal and the real, and thus provided an opportunity for reform.450 According to critical legal scholarship, nothing was to be taken at face value, but everything was to be reflected against its context and the origins and functions were always essential. Thus, although the theories had become more numerous and nuanced, the basic arguments of critical legal scholarship had not changed much during the decade. Our story of Scandinavian critical legal scholarship conveniently ends here. Marx- ist legal scholarship had begun at the early 1970s with a few articles and enthusiastic criticism without a definite theoretical basis, and at the beginning of the 1980s it had a systematic explanation for an alternative legal theory. Not everybody was, of course, straightforwardly pleased with Eriksson’s insights,451 and Marxist scholarship continued.452 Marxist legal scholarship developed from a marginal group into an academic bloc, but because of the lack of organization and political practicability, and because the critical and leftist thinking lost their momentum, it eventually began to fade as the 1980s progressed. Just as in the United States, Scandinavian legal scholars of the 1970s worked to find alternative ways to deal with the problems the new times had brought. This encouraged more cross-disciplinary research and alternative theories, the aim being to acquire a realistic and comprehensive image of law in society. Responses to the changed circumstances varied, but critical legal scholarship, CLS in the United States and Marxist jurisprudence in Scandinavia, were the most radical responses. Not only did they reflect the changes in society and scholarship, but also radical leftist thought and the academic power struggle. Various forms of cross-disciplinary research, an emphasis on flexible argumentation, and the elaboration of principles were reflections of the larger transformation of legal scholarship, and the critical legal scholarship was the most extreme, and most culturally bound and politically oriented new current in jurisprudence. Critical legal scholarship was an extreme manifestation of alternative legal scholarship, representing the most radical aspect of academic legal scholarship.

7 Conclusions

7.1 A historical perspective on critical legal scholarship

Now that the most essential aspects of the Scandinavian critical legal scholarship have been examined, it is time to summarize them and place them in a historical perspective.

450 Lars D. Eriksson, Marxistisk teori och rättsvetenskap (Helsinki: Juridiska föreningen i Finland 1980). 451 Jørgen Dalberg-Larsen, Retsdogmatik, legalstrategi og marxisme, Retfærd 12/1979, 80–92; Thomas Mathiesen, En marxistisk jurisprudens? Retfærd 15/1980, 70–74. 452 Håkan Hydén, Marxistisk rättsteori, Retfærd 12/1979, 56–79.

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As noted in the previous chapter, scholars on the history of CLS have stressed one aspect over another without providing a thorough account of the history. CLS was a reaction to the fact that the postwar jurisprudence, whether traditional or alternative, formalist or realist, did not focus on the analysis of the fundamental basis of law and legal scholarship or on the relationship between values and policies and law. It was also a response to the dramatic changes in scholarship, society, and culture. Thus, it was a cultural movement. In the following analysis, I will apply the same approach to the Scan- dinavian critical legal scholarship as was used regarding CLS, pointing out that at the fundamental level these two movements were similar kinds of cultural reactions to law and scholarship. Alternative legal scholarship arose slowly in the 1950s and 1960s. At first, it was mostly sociology of law, intended to analyze the social functions of law. Alternative criminology also emerged, investigating crime as a social phenomenon and focusing on the functions of the criminal system. By the mid-1960s, alternative legal scholarship had an established position within the academic legal profession. Furthermore, important social problems such as industrial democracy and expropriation and their legal regulations were widely debated. Those who endorsed a change often advanced sociological and value-based argumentation. Alternative legal scholarship in the first place was thus socially oriented jurisprudence which sought to understand the functions and effects of law and to provide information for reform. The changes in legal scholarship and the rise of the alternative schools were consequences of the changes in scholarship and society. Postwar scholarship was marked by the interest in sociology and cross-disciplinary research. Many of the leading figures of Scandinavian alternative legal scholarship, such as Vilhem Aubert and Thomas Mathiesen, studied in the United States and acquired their theoretical basis there. The new methodologies suited the needs of society to acquire more accurate data to deal with the new social problems. At the heart of alternative legal scholarship were the methods of the empirical social sciences with which it analyzed the social functions and effects of law, having mainly two purposes. First, it criticized law for its formal character and the emphasis on formal equality, the gap between law in books and law in action, and its political and ideological connections. Second, through the criticism it sought to change the law. Its perspective was mostly leftist. It was especially the leftist aspect of alternative legal scholarship that contributed to its radicalization and to the rise of critical legal scholarship. Critical and Marxist legal scholarship were the continuation of the alternative legal scholarship of the 1960s, but they also transformed its theories and methods. Marxist theory was used to disclose the social class-struggle which, according to the Marxist scholars, was a major source of the legal system. The purpose was still to examine the actual functions and effects of law, but the perspective was changed. Critical legal scholarship was critical by definition, because its assumption was that law emanated from the class conflict and was mostly a tool of the ruling elite, thus supporting its interests and oppressing the lower social classes. Marxist legal scholarship quickly advanced to the heart of jurisprudence during the

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1970s. First, Marxist legal scholarship was pieces of writing and academic work groups, but by the end of the decade, it had grown into a jurisprudential school, had a Nordic law journal, and there were several comprehensive treatises on its theoretical foundations. Despite the expansion and unification, however, there was no unified theory of Marxist legal scholarship. Critical legal scholarship reflected the radicalization of scholarship in the 1970s. Early influences on the sociology of law and critical criminology came mostly from American scholarship, but at the end of the 1960s, critical theory and continental Marx- ism began to have more impact. Marxist legal scholarship of the 1970s was based mostly on Continental neo-Marxism. Alternative and critical scholars often also drew influence from the contemporary topics, and used Marxist rhetoric to grasp them. Various aspects of contemporary philosophy and social theory were also applied. Despite the disagreements in theories, alternative and critical legal scholars also worked partially for a common goal and shared similarities in substance. Critical legal scholarship was also in line with the socially and politically oriented studies. It tackled problems relating to capitalist society, its purpose being to disclose the weaknesses of bourgeois welfare state and to point out that the problems could not be solved by traditional measures. Both the sociological jurisprudence and critical criminology on the one hand and the more radical Marxist legal scholarship on the other provided data for social planning. They also sprang from the rising rights consciousness, their aim being to improve the conditions of the less-privileged. Although there were differences as to the appropriate reform measures, alternative and critical legal scholars shared a background in leftist politics. Leftism was the critical thought at the time. Critical legal scholarship developed when law students became interested in the counter-culture, sociology of law, and in critical scholarship. They fought the authorities of law and legal scholarship and elaborated a jurisprudence that could transcend doctrinal analysis and expose law in action. Many of the alternative and critical legal scholars sympathized with leftism before they entered the critical path, but for some the leftist ideology followed the critical scholarship. Leftism was an ideology of antagonism, criticism, and radicalism. It was a counter-force against the establishment. Just as the new left and the cultural radicals of the 1960s wanted to show that there was an alternative to the modern liberal society, the critical legal scholars wanted to point out that there were alternatives to modern law, and that the alternatives would better guarantee welfare and democracy. Besides the social and political aspect, critical scholarship was also a scholarly enterprise. Alternative and critical legal scholarship were forms of criticism of the scholarly tradition. They criticized logical positivism in science and formalist, normative orientation in legal scholarship. The critical thought denied the presumption that one could obtain reality through empirical observation because perception was always structured by ideology. Therefore one should be aware of one’s biases to understand the meaning of the perception. Thus, critical legal scholarship was also criticism of Scandinavian realism, or the critical scholars’ definition of it. In the 1960s, realism was a major

247 school of jurisprudence, and the majority of the legal profession accepted the fact that legal scholarship should not contemplate values or policies. The critical scholars, however, wanted to bring values, ideologies, and policies back into the legal discourse. Crit- ical legal scholarship was legal positivism, because it considered law as a man-made system, but it criticized the sharp distinction between law, values, and politics. In a sense, then, critical thought sought to bring metaphysics back into legal scholarship. Moreover, critical legal scholarship was also realistic, since it emphasized law in action. Critical scholars disagreed in many respects, but they all endorsed legal argumentation that was open with values and policies. The question was also about the criticism of the autonomy of legal scholarship. Traditional legal scholars opined that their profession could use social science to an extent, but doctrinal analysis was nevertheless the core of the scholarship. The alternative and critical legal scholars, on the other hand, argued that legal scholarship should be transformed into a mixture of jurisprudence and social and political science. Whereas the attack on positivism was an attack on a more general tradition of scholarship, the attack on the autonomy of legal scholarship was an attack on the academic legal profession in particular. Critical legal scholarship thus had a social-political and a scholarly aspect. How- ever, there was yet another aspect, the academic aspect. Critical legal scholars were after an academic reputation, notwithstanding whether it was their material advantage. By attacking the tradition, the critical scholars disrespected authorities, lifted themselves above the crowd, and pursued an authentic self. Critical and radical thought was a lifestyle of academic scholarship. To an extent, the campus radicalism of the 1960s was an expression of the authentic self just as it was an expression of the frustration with the system. Some of the critical legal scholars were radical students while some merely sympathized with them, but most were either pursuing their authenticity in scholarship or were frustrated with the tradition of scholarship, university administration, faculty, or all of them. In part, critical legal scholarship was an enterprise to provide help for the underdog by improving their legal and social status, and in part it was an exercise in updating the theories and methodologies of legal scholarship. Nevertheless, in part it was also an academic movement toward originality and authenticity in scholarship. In short, American and Scandinavian critical legal scholarship were similar in many respects. They both arose as a radicalization of the sociological jurisprudence of the 1960s as reflections of the rise of Marxist scholarship. They were both new left academic movements of those students who did not want to conform to the tradition and sought to replace it with a comprehensive alternative. They contemplated significant social problems and sought to trace them in the structures of law, society, the economy, and the consciousness of the people. Scandinavian critical scholarship adopted a Marx- ist basis, while the American critical scholars kept their distance from Marxism and applied various approaches. The Scandinavians, however, disagreed as to the exact interpretation of Marxism and developed various differing theories.

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7.2 Critical legal scholarship and the 1980s

Critical legal scholarship grew out of the postwar scholarship and society. Legal scholarship was marked by the criticism of positivism, the emergence of sociology of law, and policy-oriented legal argumentation. Critical legal scholars wanted to expose social and legal reality, criticize the reasons that caused the problems, and propose reforms for a better society, better as defined by the scholars themselves. Alternative legal scholarship grew steadily during the 1960s; it was radicalized and turned into critical scholarship at the turn of the decade, reaching its height in the 1970s. Marxism became the common theoretical background on which to construct more specific legal analyses and theories. Alternative legal scholarship was, however, much more than simple criticism. It was also empirical studies on the legal status of the poor and women, for example, and practical suggestions to improve their situation. Although there was a vast amount of theoretical and empirical literature, critical legal scholarship faded slowly in the 1980s. As Kristian Andenæs wrote on the tenth anniversary of the Juss-Buss movement in 1981, critical legal scholarship and practice were not doing as well as they had ten years ago, since older scholars had become office clerks and students were not that interested in legal sociology or other alternative legal activities.453 Marxist legal scholarship of course continued in the pages of Retfærd, but it too was slowly waning and, moreover, turning into a critical analysis of the welfare legislation. As the 1980s progressed, there was ever less Marxist literature, but studies on the problems of the law of the welfare state and on the problems of the rights of the citizen prospered.454 The 1980s was in general a turn toward more conservative politics. It thus seems that Andenæs was right in saying that most of the older scholars were fatigued by their professional responsibilities, whether in the academy or in their practices, and the students were no longer that interested in critical scholarship. Criticism drift- ed out of fashion. Critical and Marxist legal scholarship did not vanish completely, but the major radical bloc faded. Because of these changes in the nature of critical legal scholarship, our analysis will stop at the beginning of the 1980s. We have now seen how alternative legal scholarship arose in Scandinavia in the 1960s, how a more critical stance emerged at the same time, and how Marxist legal scholarship was elaborated in the 1970s. An interesting aspect in the context is the development of alternative and critical legal scholarship in Finland, because in many ways it recalled its Scandinavian neighbors but at the same time was also different from them and formed a unique and interesting, more radical critical legal thought. Since we now have examined the rise of critical legal scholarship in the United States and in Scandi-

453 Kristian Andenæs, Ender vi alle opp som systemets skjödehunder? Noen betraktninger om Kritisk Juss-bevegelsens status i Norge, HfKJ 2–3/1981, 10. 454 See, e.g., Retfærd 14/1980; Retfærd 18/1981. The turn is evident from reading through the volumes of Retfærd of the 1980s.

249 navia, our next focus is in the small country at the borderline between the West and the East.

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V Alternative and critical legal scholarship in Finland, 1965─1980

1 Finland and the 1960s: The great structural change in society

In the previous chapters we have seen how critical legal scholarship arose in the United States and Scandinavia in the 1960s as a result of the changes in society, politics, and culture. In this chapter, I shall deal with the Finnish critical and alternative legal scholarship in the 1960s and 1970s, which in many ways followed the international context. During the quarter of a century approximately from the late 1950s to the early 1980s, Finland underwent a relatively late but rapid and marked social change, known as the great structural change, and it is important to begin the examination with an introduction to the social circumstances. Finland was transformed from a relatively backward and agricultural society into a modern industrial welfare state in the 1960s. Efforts at improving social welfare had begun in the 1930s but were halted by the Second World War. After the War, Finnish politics took a new course in order to pay the war reparations and to modernize society.1 The most dramatic change occurred in the 1960s. The postwar baby-boom increased the population of Finland considerably, and there was massive migration both from the countryside to the urban areas and to Sweden, when vast numbers of people moved to the cities in search of a better future.2 Thus, the 1950s and 1960s were marked by industrialization, economic expansion, and urbanization. This altered the social and class structure of Finland. A society that had previously been predominantly agricultural became an industrial one, and the size of the industrial working class grew rapidly.3 The social change and the growth of the urban working class altered the political arena as well. The working class became a major player in politics as a consequence of the structural change and the active organization of workers. Support for the moderate left increased significantly, and politics moved towards the left. This was unprecedented in the history of independent Finland, since the left had been on the margin of politics

1 Pekka Haatanen, Suomalaisen hyvinvointivaltion kehitys, 43–50, in Olavi Riihinen (ed.), Sosiaalipoli- tiikka 2017: Näkökulmia suomalaisen yhteiskunnan kehitykseen ja tulevaisuuteen (Juva: Werner Söder- ström osakeyhtiö 1993), 31–67. 2 Tapani Valkonen, Väkiluvun ja ikärakenteen kehitys, 20, 28–29, in Tapani Valkonen, Risto Alapuro, Matti Alestalo, Riitta Jallinoja, Tom Sandlund, Suomalaiset: Yhteiskunnan rakenne teollistumisen aikana (Juva: Werner Söderström osakeyhtiö 1985), 10–35. 3 Pertti Alasuutari, Toinen tasavalta: Suomi 1946–1994 (Tampere: Vastapaino 1996), 62–65; Hannu Soikkanen, Miten 1960-luvun raju elinkeinorakenteen murros syntyi ja miten sitä hallittiin? 581–582, in Tie tulkintaan (Juva: WSOY 1997), 578–602; Matti Alestalo, Yhteiskuntaluokat ja sosiaaliset kerrostumat toisen maailmansodan jälkeen, 103–107, 184–185, in Valkonen et al. 1985, supra n. 2 at 101–200.

251 after the civil war. Leftism was suppressed by extreme-right activism during the Inter- War era and communism was banned in Finland. In the 1960s, however, the left had a significant position in Finnish politics,4 but it also had a difficult position because of its controversial relations with the Soviet Union.5 The relationship between Finland and the Soviet Union was difficult after the Second World War, and the Finnish left was in an awkward position. Nevertheless, leftism became an ideology of reform and a powerful component of social and political rhetoric in the 1960s. Changes in social and welfare policy followed the social transformation, while urbanization and industrialization revealed existing social problems and created new ones. The 1960s and the 1970s were times of intense debates on social and legal politics, and people became more aware of their rights than before. The increased wealth of the nation and the changed social circumstances both encouraged the people to demand more from the state and the state to regulate society and take care of the nation. The social policy of the 1960s trusted social planning, and a considerable amount of welfare legislation was enacted. The social security system and labor law, as well as regulation on housing and public subsidies were reformed.6 Governmental regulation created the basis for the welfare state, but the society was transforming in other ways as well. Social problems and people’s awareness of them gave rise to social criticism. The so-called single cause movements criticized the status of the poor and the unemployed, women, and minorities, as well as prisoners and institutionalized people. Social activism, as well as ideas such as pacifism and feminism began to emerge. The social movements hoped to improve the status of the less- privileged and create increasing social equality.7 Thus, control and criminal policy were reformed to become more humane and modern and the legal security of the citizen was improved. Many old offences were decriminalized and penalties were moderated.8 In addition to the criticism of politics, the social atmosphere of the 1960s was antagonistic in general. Mass protests against the Vietnam War and the poor conditions in

4 Heikki Ylikangas, Käännekohdat Suomen historiassa: Pohdiskeluja kehityslinjoista ja niiden muutoksista uudella ajalla (Juva: Werner Söderström Osakeyhtiö 1987), 175–188, 205–206; Alestalo 1985, supra n. 3 at 186–194; Olavi Riihinen, Sosiaalipolitiikka ja legitimiteetti, 278–281, in Riihinen (ed.) 1993, supra n. 1 at 257–290. 5 See Kimmo Rentola, Vallankumouksen aave: Vasemmisto, Beljakov ja Kekkonen 1970 (Helsinki: Ota- va 2005). 6 Matti Alestalo & Hannu Uusitalo, Finland, 203–228, in Peter Flora (ed.), Growth to Limits: The Wes- tern European Welfare States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Ber- lin: Walter de Gruyter 1986), 197–292; Katri Hellsten, Muuttuva yhteiskunta ja sosiaalipolitiikan keskeiset arvot ja päämäärät, 144–145, in Riihinen (ed.) 1993, supra n. 1 at 131–168; Jukka Kekkonen, Suomen oikeuskulttuurin suuri linja 1898–1998 (Helsinki: Suomalainen lakimiesyhdistys 1998), 107–112; Alasuutari 1996, supra n. 3 at 108–111. 7 Marja Tuominen, “Me kaikki ollaan sotilaitten lapsia”: Sukupolvihegemonian kriisi 1960-luvun suomalaisessa kulttuurissa (Helsinki: Otava 1991), 130–215, 222–235; Matti Virtanen, Fennomanian perilliset: Poliittiset traditiot ja sukupolvien dynamiikka (Hämeenlinna: SKS 2001), 296–302; Tapani Suominen, Ehkä teloitamme jonkun: Opiskelijaradikalismi ja vallankumousfiktio 1960- ja 1970-lukujen Suomessa, Norjassa ja Länsi-Saksassa (Helsinki: Tammi 1997), 165–167; Terttu Pesonen, Vallatonta valtaa: Tut- kielma 1960-luvun radikalismista Suomessa (Helsinki: Helsingin Yliopisto 1992). 8 Kekkonen 1998, supra n. 6 at 104–106.

252 the developing countries occurred, which marked the socialist and anti-imperialist tone of radicalism. Demonstrations became frequent after the mid-1960s.9 A counter-culture arose together with social radicalism, in which the traditional values, mores, and hierarchies were criticized and people began to seek alternative lifestyles. Everything was questionable. Mass protests were targeted against the power structures and conservative nature of the society, and people demanded more democracy, power, and liberty.10 Just as the society was in turmoil, so was the academy and scholarship, and academia changed significantly in many ways in the 1960s. Many social and political scientists studied in the United States in the 1950s, which in general was a period of Amer- icanization of scholarship.11 In the 1960s, however, critical theory made its way into Finnish scholarship and Marxism began to emerge. At the beginning of the 1970s, Marxism became a powerful, though often scorned, paradigm in social science. Marxist scholarship distanced itself from the positivist paradigm that prevailed and sought to analyze the social reality critically.12 Students also became a powerful source of radicalism. The 1960s was a time of massive student expansion at the universities, which made the poor conditions of students more obvious. As the problems increased, the number of students grew and their social backgrounds became more various, they became politically active group.13 The student protests culminated in 1968 in the occupation of the Old Student House, where the students demanded democratization of the university administration, critical studies in the curriculum, and closer cooperation with the trade unions.14 As elsewhere in the world, Finnish students adopted the counter-culture of the 1960s and aligned with the political left, thus creating the new left, and became a motor of social radicalism. An economic downturn and growing unemployment marked the 1970s.15 Trade unions and leftism were still powerful, and student radicalism adopted a more Marxist tone and moved even more towards the left,16 but society in general was becoming more conservative. Although the trends of the 1960s continued and new trends such as envi-

9 Tuominen 1991, supra n. 7 at 158–178, 218–222; Suominen 1997, supra n. 7 at 172–174. 10 Johan von Bonsdorff, Kun vanha vallattiin (Helsinki: Tammi 1986), 68–86, 104–142; Tuominen 1991, supra n. 7 at 344–382. 11 Erik Allardt, Suunnistuksia ja kulttuurishokkeja (Helsinki: Otava 1995), 74–82; Marja Alaketola- Tuominen, Jokapojan amerikanperintö: Yhdysvaltalaisia kulttuurivaikutteita Suomessa toisen maailmansodan jälkeen (Helsinki: Gaudeamus 1989), 61, 64. 12 Matti Alestalo & Teuvo Räty, Sosiologian 1960- ja 1970-lukujen kriisi väitöskirjojen valossa, 223, in Pekka Ahtiainen, Teuvo Räty, John Strömberg, Jukka Tervonen, (eds.), Historia, sosiologia ja Suomi: Yhteiskuntatutkimus itseymmärryksen jäljillä (Helsinki: Hanki ja jää 1994), 217–243; Antti Eskola, Sep- po Toiviainen, Matti Alestalo, Risto Alapuro, Marxilainen tutkimus, 222–223, in Suomalaisen sosiologian juuret (Porvoo: Werner Söderström Osakeyhtiö 1973), 194–225. 13 Laura Kolbe, Eliitti, traditio, murros: Helsingin yliopiston ylioppilaskunta 1960–1990 (Helsinki: Otava 1996), 177–202, 387–389. 14 Kolbe 1996, supra n. 13 at 327–364; Tuominen 1991, supra n. 7 at 322–339; Bonsdorff 1986, supra n. 10 at 9–31; Virtanen 2001, supra n. 7 at 309–318; Suominen 1997, supra n. 7 at 176–198. An interesting point is that the Finnish students occupied a building that belonged to the students’ union, not one belonging to the University. Thus, although student radicalism in Finland followed the international trends, it was somewhat more moderate than elsewhere in the Western world. 15 Alestalo & Uusitalo 1986, supra n. 6 at 205, 213, 234, 250. 16 Kolbe 1996, supra n. 13 at 409–501.

253 ronmentalism emerged, more conservative voices were also heard,17 and the structures of the welfare state were criticized for being too costly.18 By the end of the 1970s, radicalism had faded and politics sought consensus rather than conflict, and students had lost most of their interest in politics.19 Despite the change, the 1960s and 1970s had left a permanent mark on Finnish society. The remainder of this chapter examines its impact on legal scholarship.

2 Criticism of legal scholarship

2.1 A prelude to the problems of legal scholarship in the 1960s

Finnish legal scholars began to modify legal scholarship to meet the needs of the changing society during the postwar years.20 Despite the changes, Finnish jurisprudence of the 1960s was still based on nineteenth-century conceptualism. No extreme formalism, however, prevailed, since legal scholars recognized the fact that law was open to interpretation, as well as the personal input of the judges in judicial decision-making. Never- theless, legal thought sought to maintain legal reasoning within rational limits and to keep it as neutral and logical as possible.21 In general, jurisprudence was dominated by doctrinal analysis, the purpose of which was to interpret and systematize legal rules. Other forms of legal scholarship, such as legal history and sociology, were considered as auxiliary disciplines.22 Doctrinal analysis, on the other hand, was divided into conceptual and analytical approaches. The former emphasized the importance of legal concepts, whereas the latter, the analytical school that developed in the 1950s, sought to

17 Virtanen 2001, supra n. 7 at 318–339. 18 Jukka Pekkarinen, Keynesiläinen hyvinvointivaltio kritiikin ristitulessa, 104–107, in Riihinen (ed.) 1993, supra n. 1 at 97–108; Hellsten 1993, supra n. 6 at 148–150. 19 Kolbe 1996, supra n. 13 at 529–539. 20 Urpo Kangas (ed.), Oikeustiede Suomessa 1900–2000 (Juva: Werner Söderström Lakitieto 1998), 172– 173. 21 See, e.g., Aatos Alanen, Yleinen oikeustiede ja kansainvälinen yksityisoikeus (Porvoo: Werner Söder- ström Osakeyhtiö 1965), 101–177. Alanen wrote that although the personal input of a judge in adjudication had long been acknowledged (id. at 167), legal education guided judges toward objectivity and impartiality (id. at 172). Alanen stressed these points as early as the late 1940s. (Aatos Alanen, Yleinen oikeustiede (Porvoo: Werner Söderström Osakeyhtiö 1948), 112, 115.) It is, of course, a matter of debate as to whether Alanen’s points of views can be regarded as representative of the majority of the legal profession. It nevertheless seems apposite to use them as guides to the legal thought of postwar Finland because his books were used as text books on general jurisprudence. In any event, he emphasized the pursuit and the possibility of neutrality and objectivity in legal reasoning while acknowledging the exercise of discretion. Therefore, it is fair to conclude that Finnish legal scholarship of the 1960s emphasized the logical and formal aspects of legal reasoning. 22 Simo Zitting, Valtioelämän oikeustieteellinen, historiallinen ja sosiologinen tutkimustapa, Politiikka 1961, 36–39.

254 distinguish concepts into more definite and detailed parts.23 Legal scholars were aware of the fact that legal scholarship had a partial law-making aspect, but the focus was on normative aspects.24 Text-books often stressed the fact that a legal decision was a logical deduction,25 and conceptualist jurisprudence was also supported, especially in public law.26 The characteristics of legal scholarship thus were its normative nature and its emphasis on legal rules as well as its pursuit of neutrality and objectivity, the taught tradition being more formalist than legal scholarship in general. The transformation of Finnish legal scholarship had thus begun after the Second World War, but the 1960s marked a more intense period of change. Despite the formalist tradition, the openness of legal reasoning was acknowledged,27 and legal scholars were calling for more empirical legal research,28 and studies concentrating on the problems of legal interpretation.29 One especially significant occasion in Finnish legal theory was the doctoral dissertation of Kaarle Makkonen, published in 1965, which concerned the problems of judicial decision-making. Makkonen criticized the traditional notion that a judicial decision was a logical deduction from general principles and argued that in cases with discretion, the judge always put his opinion in the place of law and made an evaluative argument about what the law ought to be.30 Although the book did not raise general attention at the time of its publication, it became significant for later scholarship since it pointed out the problems the legal scholars were facing and encouraged seeing adjudication from a new perspective. Moreover, traditional legal scholars did not approve the central arguments of the book, suggesting that Makkonen went too far with his arguments. They thought that it was useful to present judicial decision-making as a logical deduction at least for study purposes.31 Even if the traditional profession was not willing to change the basis of their scholarship, legal scholars developed new methods of making legal scholarship meet the needs of society and respond to the contemporary legal problems. An important school of the 1960s was the new analytical jurisprudence, which the young legal scholar Aulis Aarnio (b. 1937) developed on the basis of the older Finnish analytical jurisprudence. The analytical-realistic school, which was mostly interested in dividing legal concepts into smaller units, was transformed into an analytical-hermeneutical school,

23 Simo Zitting, Omistajan oikeuksista ja velvollisuuksista I─II, LM 1952, 387–401, 501–531. 24 Zitting 1961, supra n. 22 at 36–37. 25 Tauno Tirkkonen, Suomen siviiliprosessioikeus II (Porvoo: Werner Söderström Osakeyhtiö 1966), 292–295. 26 Olavi Rytköla, Hallinto- ja finanssioikeudessa sovellettavista oikeusnormeista, LM 1965, 172–185. 27 Jan-Magnus Jansson, Grundlagsutskottet som grundlagstolkare, JFT 1955, 277–297; Simo Zitting, Teoreettisen tutkimuksen merkityksestä juridiikassa, LM 1960, 861–868. 28 Martti Federley, Laintulkinnasta deskriptiivisenä tulkintaoppina, LM 1965, 296–302; Jaakko Uotila, Normitieto ja reaalitieto, LM 1967, 839–847. 29 Kaarle Makkonen, Luova ajattelu oikeustieteessä, LM 1965, 844. 30 Kaarle Makkonen, Zur Problematik der juridischen Entscheidung: Eine strukturanalytische Studie (Turku: Turun yliopisto 1965), esp. at 175–195. 31 Tauno Tirkkonen, Mietteitä erään väitöskirjan johdosta, LM 1966, 128.

255 focusing on the linguistic uses of the concepts as well.32 Aarnio argued that it was not meaningful to operate simply with the concepts, but one ought to examine their practical meaning.33 His doctoral dissertation thus brought the elements of linguistic philosophy and deontic logic into the analytical theory, and sought to explain the meaning of the concepts, their sub-concepts, legal rules, and legal pronouncements in reality. The purpose was to sort out the meaning of legal rules in practical legal situations.34 Aarnio’s analytical jurisprudence sought to make legal scholarship and reasoning more realistic but it was not an attempt to abandon the traditional characteristics of legal scholarship. Rather, with the help of linguistic philosophy he endeavored to respond to the contemporary problems of legal reasoning and scholarship. Another young legal scholar, Hannu Tapani Klami, for instance, criticized Aarnio for not being able to define the new method of legal scholarship and argued for more nuanced and realistic legal argumentation.35 By the mid-1960s, many legal scholars opined that the old conceptualist jurisprudence was outdated, and began to elaborate more realistic methods of reasoning. The theoretical premises of new methods, however, were open to debate and criticism. As we saw in the previous chapters, postwar jurisprudence struggled with the pursuit of rationality. By the second half of the 1960s, Finnish legal scholarship was also facing new challenges. The legal profession had traditionally been quite conservative, and so was academic jurisprudence. Although there never was any realist tradition in Finland, its elements had made their way into Finnish jurisprudence since the late 1940s when legal scholars began to pay more attention to the social realities of legal problems,36 and the analytical jurisprudence of the 1950s shared certain elements of it.37 In the 1960s, legal scholars were becoming more interested in the methodological problems of their scholarship. As Zitting noted, Aarnio’s treatise combined doctrinal analysis with legal philosophy and thus complemented, not invalidated traditional scholarship.38 During the 1960s, legal scholars became more interested in other methods considering legal phenomena than doctrinal analysis, and the problems of analyzing judicial decision-making were becoming more pressing. New currents in philosophy and social

32 Kaarlo Tuori, Oikeuden ratio ja voluntas (Helsinki: WSOYpro 2007), 190–196. According to Tuori, Makkonen was a mediator between the two schools. Finnish analytical jurisprudence was originally developed in the 1950s by Simo Zitting. 33 Aulis Aarnio, Avio-oikeuden käsitteestä, LM 1965, 592, 594–595. 34 Aulis Aarnio, Perillisen oikeusasemasta (Helsinki: Suomalainen lakimiesyhdistys 1967), esp. at 23–59, 104–133. See also Aulis Aarnio, Några tankar om oskiftat dödsbo som juridisk person, JFT 1968, 342– 368. 35 Hannu Tapani Klami, Kan lagfart beviljas oskiftat dödsbo? En studie i frågeställningar, JFT 1969, 219– 227. See also Aarnio’s reply Aulis Aarnio, Några tankar om oskiftat dödsbo som juridisk person II: Svar till Hannu Tapani Klami, JFT 1969, 228–243. 36 Markku Helin, Lainoppi ja metafysiikka: Tutkimus skandinaavisen oikeusrealismin tieteenkuvasta ja sen vaikutuksesta Suomen siviilioikeuden tutkimuksessa vuosina 1920–1960 (Helsinki: Suomalainen lakimiesyhdistys 1988), 261–422. 37 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luentoja oikeustieteen historiasta (Helsinki: Helsingin yliopisto 1996), 136–138. As noted, Otto Brusiin had developed Finnish legal realism in the 1930s but his theories were widely discredited. (Id. at 113–124.) 38 Simo Zitting, Perillisen oikeusasemasta [book review], LM 1968, 611.

256 science interested legal scholars. Finnish legal thought was about to change, but it was also about to face a challenge of previously unseen magnitude.

2.2 The rise of critical legal scholarship in the late 1960s

As legal scholarship was facing general problems regarding the phrasing of questions, reasoning, and argument, a more critical trend was also developing. The 1960s in general was time of radicalization of youth and culture. Students at the universities were getting more involved in politics, and scholarship was drawing influences from the critical theories of Western Europe. At the same time, young legal scholars were also developing alternative methods with which to approach legal problems. The interest in philosophy and the rising social unrest then contributed to the development of critical legal thought. Legal philosophy was not in the mainstream of Finnish legal education or scholarship in the 1960s. It was practiced but not on a major scale, although the interest in philosophical questions had increased during the 1960s. Thus, a young, Swedish- speaking legal scholar in his late twenties, Lars D. Eriksson became seriously interested in legal philosophy during his study year in the United States in 1966. This was a time when American campuses were already places for radicalism. Besides the rising interest in legal philosophy, Eriksson was fascinated neither by the capitalist nature of the Unit- ed States nor by the lack of program of the American radicals.39 Finnish scholarship was in a need of new ideas, and international currents provided considerable influence that had to be adapted to the Finnish circumstances. The weak progressive legal profession and the conservative scholarship provided a fertile ground for counter-cultural elements in the legal academia. Critical and philosophical trends in Finnish jurisprudence became apparent by the mid-1960s. The first critical analysis of legal reasoning was Eriksson’s article on legal argumentation and dialectical logic in which he argued that legal reasoning was not logic but dialectical argumentation, or simply rhetoric. According to him, solutions followed from the values and premises of the decision-maker, and the process of the decision was structured within the inner logic of law. The arbitrary and evaluative character of legal reasoning was simply obscured by the legal language. Therefore, he concluded, legal argumentation ought to be open, and legal scholars ought to analyze the inner structure of legal reasoning.40 Mostly on the basis of the recent philosophy of Perelman and Viehweg and American legal realism, Eriksson applied philosophical methods to legal reasoning in order to point out its openness and impermanence. Besides the philosophical innovation, the radical tone of the analysis was striking. Legal discretion was

39 On Eriksson’s thoughts on his visit to America, see Lars D. Eriksson, Dyre Broder…, FBT 1–2/1966, 71–73. 40 Lars D. Eriksson, Rättslig argumentering och den dialektiska logiken, JFT 1966, 459–482.

257 recognized and scholars had called for more nuanced argumentation, but Eriksson argued that law was merely rhetoric, based on values and premises which were partly built into the legal structures. Thus the indeterminacy thesis, meaning that with the right arguments legal decisions could turn either way, entered Finnish jurisprudence. Another alternative trend, emphasizing methodological plurality and the value- bound nature of legal scholarship grew alongside the theory of legal indeterminacy. An important figure in this regard was Antero Jyränki, a legal scholar in his early thirties. During the 1960s, he stressed the importance of legal history for legal scholarship,41 and research on law in action instead of law in books.42 In his doctoral dissertation, which otherwise was a traditional analysis on the powers of the President of Finland over the military forces, he stressed the fact that legal interpretation was inevitably value- bound.43 Later he elaborated this notion further, pointing out that eclectic analysis of the Constitution could open up countless dimensions in sorting out the legal reality.44 Obvi- ous in the literature were the emphasis on the inherent position of values in law and in legal scholarship, as well as his support for eclectic and open research. Jyränki was also critical of the tradition of constitutional scholarship in Finland because of its formalist nature and the neglect of values and social aspects. In these respects, Jyränki was following American realism and the recent Scandinavian alternative legal scholarship. Critical legal scholarship was thus heading in two directions in the latter half of the 1960s. On the one hand, there was the critical analysis of legal reasoning, arguing that legal decision-making was not logic but indeterminate and rather a question of argumentation and rhetoric. On the other hand, there was the criticism of doctrinal analysis, arguing that instead of law in books, scholarship should focus on law in action from various perspectives using various methods. The criticism of traditional legal scholarship was thus evident. Although there was no single definition of traditional legal scholarship, it was mainly characterized by doctrinal analysis and the pursuit of rationality and neutrality. In the last resort, then, it was the common faith of the legal profession on legal certainty and the autonomy of legal scholarship that was being questioned. Critical legal scholars thus adopted a completely different perspective on law and legal scholarship than the traditional profession in Finland, as they did in the United States and Scandinavia, as we saw in the previous chapters. The late 1960s was a time of debate on the rights of the citizen and on rationality of the administration of justice in general. In 1967, Eriksson edited a political pamphlet criticizing the arbitrary and discriminatory character of the system of treatment in which people were institutionalized “for their own good,”45 and in 1968 the publishing company Tammi founded the Huutomerkki (exclamation mark) series that was to become a

41 Antero Jyränki, Ministerimyötävaikutuksen historiallisesta taustasta ja kehityksestä Suomessa ja Ruot- sissa, JFT 1963, 30–53. 42 Antero Jyränki, Yhdysvaltain ja Suomen presidentin aseman vertailua, Politiikka 1962, 208–244. 43 Antero Jyränki, Sotavoiman ylin päällikkyys: Tutkimus tasavallan presidentille HM 30 §:n nojalla kuuluvasta toimivallasta ja sen käyttämisestä (Helsinki: Suomalainen lakimiesyhdistys 1967), 302–303. 44 Antero Jyränki, Näkökohtia Suomen perusoikeusjärjestelmästä, LM 1968, 982–999. 45 Lars D. Eriksson (ed.), Pakkoauttajat (Helsinki: Tammi 1967).

258 publishing channel for pamphlets of social, political, and legal criticism.46 On the other hand, 1968 also marked the Finnish translation of Hans Kelsen’s Pure Theory of Law.47 There was also a need for positivist, normative analysis, since traditional scholarship maintained the ideals of legal autonomy and rationality. The critical thought, however, questioned the old authorities, and since the general atmosphere provided encouraging circumstances, the criticism was becoming harsher. The idea of autonomous jurisprudence irritated the critical legal scholars, who thought that jurisprudence had to open itself up toward society in order to fulfill its functions. In the pursuit of socially oriented legal scholarship, Eriksson followed the recent Scandinavian theories on sociological jurisprudence but was not pleased with them. He nonetheless did recognize the need for flexible argumentation in judicial decision-making which, he claimed, was already replete with value arguments, which were simply not explicitly articulated.48 Therefore, he declared, legal scholarship and argumentation had to contemplate the social circumstances together with social scientific data in order to become realistic and respond to contemporary needs.49 Distinctive of the alternative perception of legal scholarship was the willingness to take the social functions of law seriously and pay attention to its realities. In Scandinavia, legal scholars hoped to systematize the alternative approach in the late 1960s, and there was interest in this in Finland as well. What was lacking, however, was a systematic analysis of the theoretical premises of critical legal theory. Critical legal scholarship thus needed a program because, according to the criticism, traditional scholarship was unable to respond to contemporary needs. Eriksson laid the basis for critical legal scholarship in the 1960s, arguing that the social sciences, including legal scholarship, were based on assumptions which were concealed or presented as facts. According to Eriksson, traditional legal scholarship was based on three premises, which were the autonomy of jurisprudence, its neutrality, and the harmony of the legal system. Therefore, traditional scholarship was static and conservative, and critical scholarship was needed to disclose the values and ideologies in law.50 Although his short article was rather a proclamation than a systematic examination of the theoretical basis, Eriksson described all the fundamental elements for a critical legal scholarship project. The article was also typical of the critical thought of the late 1960s, since it described the traditional scholarship as uncritical, formalist, and unrealistic, thus ridiculing the tradition.

46 The books in the series took critical positions on contemporary domestic and international problems. Legal critiques included Jyrki Tala (ed.), Kantajana kansalainen: Raportti oikeusturvasta (Helsinki: Tam- mi 1969); Heikki Karapuu (ed.), Harvojen tasavalta: Perustuslain epädemokraattisuus (Helsinki: Tammi 1970). 47 Hans Kelsen, Puhdas oikeusoppi (Helsinki: WSOY 1968). 48 Lars D. Eriksson, Samhällstillvänd juridik, JFT 1968, 565–583. Eriksson reviewed the books of the Swede Per Olof Bolding and the Norwegian Carl August Fleischer. These books are dealt with in chapter four. Despite the critical response of Eriksson, Finnish legal scholars followed the Scandinavian legal scholarship and drew influence from that. 49 Eriksson 1968, supra n. 48 at 578, 582–583. 50 Lars D. Eriksson, För en kritisk rättsvetenskap, Contra 1/1969, 12–14.

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Critical legal thought was thus emerging in the late 1960s. Finnish legal scholarship was opening up towards international and philosophical influences in general, some of which were used to develop more critical theories about jurisprudence. A crucial event in the development of this critical thought was the publication of the doctoral dissertation by Antti Kivivuori (b. 1940) in 1969. The treatise was about the Finnish law of torts in the nineteenth century. For our purposes, however, its most interesting part was the introduction in which the methods were explained. Kivivuori argued that the traditional question of Finnish legal scholarship, namely what was the correct solution to a given legal problem according to the law in force, was not a meaningful scholarly question, because the purpose of law was to control and direct human behavior. Mean- ingful scholarly problems, therefore, related to the explanation of legal behavior, and the purposes, functions, and effects of law.51 Besides giving a powerful impetus to the debates on legal scholarship, the publication of the Kivivuori dissertation was the beginning of behaviorist and political jurisprudence in Finland. The influences of the theory came mostly from philosophy, the most important influence being the Finnish philosopher Georg Henrik von Wright, and its idea was to explain the behavior of the legislator. It was also noteworthy that alternative methodology and criticism of traditional legal scholarship were explicitly highlighted in a doctoral thesis. It was possible to point out the usefulness of the new methods by dismissing traditional scholarship as scientifically meaningless. The controversy over the methods of legal scholarship was also clear in the emphasis on the use of social science in legal research. These critical notions an- ticipated an academic quarrel that had been simmering for the previous couple of years. The smoldering controversy over the nature of legal scholarship flared up after the publication of Kivivuori’s dissertation. Eriksson and Kivivuori criticized the jurisprudential tradition, calling for alternative scholarship to purge jurisprudence of its inconsistencies and absurdities. The tradition, however, was not ready to accept such critical arguments. The spokesman for a more traditional legal scholarship was Aarnio. For him, the question as to whether legal scholarship was a science was not appropriate because of the conventionality of the criteria of science. He admitted that jurisprudence involved much argumentation and interpretation, but denied that legal scholarship, especially analytical jurisprudence, was unrealistic or conservative.52 Aarnio’s reply attempted to maintain the autonomy of legal scholarship and the rationality of law to a certain extent. Although he admitted that there was a place for alternative scholarship, and that jurisprudence was argumentation to a considerable extent, he did not consider them to be in the mainstream of jurisprudence. This defense was an attempt to distinguish law from politics at a general level, pointing out the major controversy between the critical and traditional views, since the critical scholars were not willing to accept the distinction.

51 Antti Kivivuori, Suomen vahingonkorvauslainsäädännön kehitys I: Rikoslainsäädäntö 1809–1875 (Hel- sinki: Helsingin yliopiston yksityisoikeuden laitoksen julkaisuja 1969), 25–26. 52 Aulis Aarnio, Juridisen tutkimuksen näköaloja, JFT 1969, 374, 376–382, 384–404.

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Aarnio’s reply thus fuelled the debates. According to Kivivuori, the problem never was about the scientific nature of legal scholarship, but about its meaningfulness and rationality. He argued that Aarnio had simply shown the weaknesses of analytical jurisprudence while stating that legal behavior was a subject of jurisprudence and assimilat- ing the process of political and legal decision-making, but then denying the role of explaining the behavior and making a strict distinction between law and politics.53 Eriks- son argued that analytical jurisprudence focused on trivial questions while examining legal concepts and did not concentrate on the questions beyond the concepts. The narrow perspective of traditional scholars neglected structural aspects relating to values and interpretation.54 The defense of a more traditional legal scholarship pushed the critical debates further by offering counter-arguments to which the critical scholars could respond and thus criticize the tradition even further. The quarrel clarified the controversy that was about the nature and purposes of legal scholarship. The critical scholars were not that far removed from Aarnio’s views, because in his reply, Aarnio demonstrated that analytical jurisprudence did not exclude any problems from research and that Eriksson had simply over-emphasized the role of values in judicial decision-making.55 In addition, he argued that Kivivuori’s critique was based on misreading and misunderstanding and was therefore off the mark.56 Regarding the major parts, however, the controversy was clear. Critical legal scholars were after a political and “critical” legal scholarship, whereas the more traditional view was that these were simply parts of legal scholarship at best. The critical scholars also disagreed on some points. Eriksson criticized Kivivuori for his descriptive approach,57 Kivivuori replying that descriptivism also had political goals and criticizing Eriksson for ambiguity.58 The debate was expanding into an exchange about the nature and purpose of law and legal scholarship. Many of the scholars shared a theoretical basis to some extent, but disagreed on its purposes. Critical legal scholarship attacked the traditional concept of law and legal scholarship because they thought that these could not be used in a meaningful way in modern society. The rebellion on the methods of legal scholarship was open and apparent by the end of the 1960s. Following European, Scandinavian, and Finnish debates on alternative legal scholarship, Jyränki proposed a few critical theses about jurisprudence. According to him, legal scholarship had to be integrated with social science and had to consider all the socially relevant legal institutions. Legal scholarship needed various methods and perspectives because of the complexity of legal phenomena and because of their ele-

53 Antti Kivivuori, Oikeustieteen ongelmia, JFT 1969, 407–411. 54 Lars D. Eriksson, Värderingar, fakta och juridik, JFT 1969, 419–423. 55 Aulis Aarnio, Om rättsvetenskapens satser: Replik till Lars D. Erikssons kritik, JFT 1969, 558–560, 566–572. 56 Aulis Aarnio, Muutama oikaisu oikeushistorioitsijan mietteisiin, JFT 1969, 573–578. Kivivuori had indeed criticized Aarnio quite harshly, which may have contributed to the fact that Aarnio criticized him more than Eriksson who had been more restrained in his criticism. 57 Eriksson 1969, supra n. 54 at 427–428. 58 Antti Kivivuori, Rättsvetenskapens problem: Svar till Lars D. Eriksson, JFT 1969, 580–581.

261 mentary ties with society, which the traditional analysis could not grasp.59 The international aspect and the central elements of the critical legal scholarship were apparent in this article. The critical thought regarded traditional legal scholarship as serving the interests of the old, conservative element of the legal profession, as well as capitalist interests. Critical scholars sought to expose the connection between society and the law and the fact that the law and traditional legal scholarship were biased towards powerful social interests and unable to go beyond the surface. Depicting traditional jurisprudence as conservative and thus stressing the reforming aspects of the alternatives was evident in the critical pursuit. Critical scholars pursued change. To picture the legal profession as a guardian of social hierarchies was thus a major aspect of critical scholarship. This was also the purpose of Raimo Blom’s study on national confidence in the judiciary. This was an empirical survey on what people thought about the impartiality of the judiciary, which showed that there was a general lack of confidence in the courts.60 In his speech given before the public examination of the dissertation, Blom straightforwardly announced that social status had an impact on the decisions of the courts and that the judiciary’s treatment of the people was inequitable.61 The study provoked serious discussion,62 and even though the traditional scholars argued that it revealed more about people’s attitudes than about the reality of the judiciary,63 it was often regarded as an expression of class-based law. Critical scholarship sought to disclose the biased nature of law and the legal system. By turning the facts of research into facts about the administration of justice, the arguments could be used as a criticism of the legal system. Methods of research were one thing, and their use was another. Since critical scholarship often reflected a perspective on law that deviated from the tradition, its results were used to criticize the prevailing circumstances. An empirical survey as such was not particularly radical, but it provided ammunition for criticism. The treatise by Blom pointed out the rising trends in Finnish alternative and critical legal scholarship. As a study, it was an empirical survey, demonstrating that people did not have great confidence in the judiciary. It reflected the rise of the empirical legal research and the combination of jurisprudence and social science. As a criticism, it reflected the leftist antagonism against social hierarchies and the structures of power. It was also an expression of the international trends in Finnish legal scholarship, because studies on the impacts of social status on judicial decisions were popular in Scandinavia and the United States, as we saw earlier, and Blom referred to these in his book. It can thus be considered as an empirical, sociological-political jurisprudence. Critical and alternative legal scholarship, as well as the rebellion on the methods of jurisprudence,

59 Antero Jyränki, Teesejä juridiikasta ja juristeista, LM 1969, 887–891. 60 Raimo Blom, Luottamus oikeuslaitokseen (Tampere: Tampereen yliopisto 1970). 61 Raimo Blom, Luottamus oikeuslaitokseen, Lakimiesuutiset 2/1970, 6–7. 62 See Lakimiesuutiset 2/1970, 10–16. 63 Jaakko Uotila, Lakimiesuutiset 3/1970, 5–6 [untitled article].

262 were general international trends, and Finnish legal scholarship followed them, adapting them to its own circumstances. As the 1960s turned into the 1970s, debates on legal scholarship became more general, as well as more intense and nuanced, and more and more scholars participated. Jyränki argued that law, and hence legal scholarship as well, was not some special field but part of social totality. Thus, legal scholarship should use all kinds of social science methods and should focus on law as part of social totality.64 Hannu Tapani Klami (1945–2002), an exceptionally talented young legal scholar who had specialized in legal history and philosophy, criticized traditional positivism and analytical jurisprudence for their one-sided perspective, and the recent critical legal scholarship for its political orientation. He argued that legal scholarship should use historical methods in pursuit of the purposes of law, thus obtaining a teleological analysis determining the consequences of law.65 Juha Tolonen (b. 1941) argued that both traditional positivism and recent empiricism had good qualities but were insufficient alone. He stressed the fact that since law was always human activity in pursuit of certain goals, legal scholarship should continu- ously criticize, not only legal rules but also the understanding of the rules, in order to improve the system.66 Aarnio replied that the critics of analytical jurisprudence had misunderstood it. He continued to emphasize the significance of semantic analysis in legal scholarship because many problems followed from linguistic inaccuracies.67 The criticism always reflected the image of traditional jurisprudence of the alternative scholars, who were dissatisfied with contemporary legal scholarship and encouraged broader perspective for it. Whether the tradition was as formalist as the critics depicted it is a matter of debate, but there was a genuine frustration with it. The extent of the debates indicates the general willingness to change the tradition. Alternative views on legal scholarship were thus quite common, and the critical aspect was an extreme articulation of the more general trend. Legal scholars became more interested in judicial decision-making as political activity in the early 1970s,68 and the criticism of legal scholarship was also becoming more strident. Kivivuori argued that analytical jurisprudence was the follower of conceptualism, and that it had been unable to produce clear questions for legal scholarship. It ignored the preliminary works of law drafting, thus neglecting important sources, and it also analyzed legislation and argumentation impersonally, thus masking the political biases of law and legal scholarship.69 Aarnio was upset that the criticism was directed against analytical jurisprudence, arguing that Kivivuori’s methods were often meaningless in sorting out solutions to practical legal problems. He also argued that legal interpretation was not absolutely free, as Kivivuori had argued, and that issues of private law

64 Antero Jyränki, Valtio-oppi ja oikeustiede, Politiikka 2/1970, 117–123. 65 Hannu Tapani Klami, Historialliset aspektit positiivisoikeudellisessa tutkimuksessa, LM 1970, 51–60. 66 Juha Tolonen, Muutamia näkökohtia oikeustieteen nykytilasta, LM 1970, 141–153. 67 Aulis Aarnio, Sananen “lakipositivismista”, LM 1970, 276–288. 68 Heikki Jokela, Tuomari lainsäätäjänä, LM 1970, 840–850. 69 Antti Kivivuori, Suomalaisen oikeustieteen virheet I, LM 1970, 422–429.

263 were not political.70 Kivivuori replied that Aarnio had missed the politically relevant substance in legal problems and thus masked the political nature of law in the way traditional legal scholars tended to do.71 Although interpretation and discretion were widely acknowledged, critical scholars were more convinced about their pervasive and political nature than the more traditional scholars. Furthermore, the critical scholars were not particularly pleased with the attempt to explain the legal language because they opined that it simply masked the real problems. According to the critical argument, since the problems of law and legal scholarship were embedded in the legal structures and the ideology on which the law was based, there was a need for a more thorough and critical analysis. Just as the debates on legal scholarship were heating up at the beginning of the 1970s, a considerable boost was provided. The President of Finland, who had been in office since 1956, had his 70th birthday in September 1970, and there was an interview in the most prestigious Finnish law review, Lakimies, later continued on radio. President Kekkonen, an authoritative figure in Finland in the 1970s, was known for his tight control of both domestic and foreign affairs and his continuous meddling in them. The interview was, however, an extraordinary criticism of the Finnish legal system. Kekkonen took a stand on the national lack of confidence in the judiciary, commenting that the law and the courts produced inequality. He also tackled the problems of legislation, the conservative nature of legal scholarship and education, the political nature of the judiciary, discrimination in the administration of justice, and noted the need to reconsider the division of state powers in modern society.72 The interview had a wide-ranged agenda on various important contemporary topics, and since the President was a significant figure, his opinions on the issues interested many people. More important than the questions were the answers, which indeed were intri- guing. By referring to Blom’s study, for example, President Kekkonen argued that Finn- ish law was in many ways outdated and treated people unequally on the basis of their social status.73 He also said that legal scholarship was mostly conservative, lacked an empirical approach, and was often political, although mostly unconsciously.74 The Pres- ident thus said what the critical scholars had argued for the past couple of years, namely that legal scholarship was ideological and political, but because of its formalist nature and the denial of the scholars, the political character was masked, and hence legal scholarship was conservative. The President’s harsh words confused the legal profession, and a crisis in law seemed to be in the offing. However, there was a catch. The questions of the interview were carefully framed by three legal scholars, Aulis Aarnio, Matti Savolainen and Ilmari Ojanen, all members of the Social Democratic Party. In addition, before replying, the President talked with a

70 Aulis Aarnio, Analyysistä, käyttäytymisen selittämisestä ja vähän muustakin, LM 1970, 569–578, 584– 588. 71 Antti Kivivuori, Suomalaisen oikeustieteen virheet II, LM 1970, 934–937. 72 Urho Kaleva Kekkonen, Kansanvallasta ja sen toteutumisesta lainkäytössä, LM 6/1970, i–xxi. 73 Id. at iii–vii. 74 Id. at xii–xiv.

264 group of legal scholars, who were Antero Jyränki, Lars D. Eriksson, Antti Kivivuori, Raimo Blom and Olavi Heinonen, also all members of the political left.75 Furthermore, as should be obvious by now, the scholars behind the interview were active participants on the critical side of the debates on legal scholarship. The framers of the questions were all young legal scholars favoring alternative perspectives on legal scholarship, even if Aarnio’s position was problematic, since he rejected the most critical arguments. Those who advised the President, on the other hand, were active proponents of critical or alternative legal scholarship and strongly on the left in politics. Needless to say, the questions conformed precisely to the agenda of the critical legal scholars, and the Presi- dent’s answers mirrored their arguments. Whatever the truth behind the interview was, it pointed out the turbulent situation in legal scholarship and stirred the already restive atmosphere. The majority of the legal profession disagreed with the President’s insights.76 Although closely managed by the critical legal scholars, the President reflected the general critical atmosphere of the time and probably wanted to ginger up debates on social reforms.77 The interview was nonetheless a sharp criticism of the legal system, expressed in tough and uncompromising terms. Its purpose was obviously to provoke discussion and to contribute to the possible changes in the legal system and in academic legal scholarship. Because of the authority of the President and the severe tone, the interview was very difficult to ignore. Legal scholarship was facing new problems which had to be dealt with. Indeed, the interview intensified the discussion. For some, it pointed out the need to observe the values and social functions of law in legal scholarship and education.78 Traditional scholars, however, responded that the critique was exaggerated and missed the point in many ways. Paavo Kastari argued that the President’s critique was so harsh that it rather closed than invited discussion.79 Juha Vikatmaa noted that there was a need to reform legal scholarship, but it nevertheless was an exaggeration to talk about ideological one-sidedness or lack of empirical research.80 Simo Zitting also greeted discussion about scholarship but criticized the critical scholars for turning scholarship into ideology.81 The need to change legal scholarship was generally acknowledged but the critical scholars took the reform to an extreme. Whereas the critical view saw that legal

75 Jyränki has revealed the background of the interview in his memoirs. (Antero Jyränki, Kolme vuotta linnassa: Muistiinpanoja ja jälkiviisautta (Juva: Werner Söderström Osakeyhtiö 1990), 258–265.) 76 Jussi Pajuoja & Kaijus Ervasti, Suomen lakimiesliiton historia (Jyväskylä: Lakimiesliiton kustannus 1994), 147–151. 77 Kekkonen 1998, supra n. 6 at 113, n. 113. Although the actual impact of the “preparation” on the outcome of the interview is doubtful, it obviously had some influence on it since the replies were precisely those that the critical scholars endorsed. The president was himself a jurist by education, but by 1970 he had been involved in politics for decades, which meant that his criticism was probably more political than legal. It is therefore possible that the interview served different purposes, being beneficial for both the President and the legal scholars. For the President it was opportunity to rap the knuckles of his political opponents, while the critical legal scholars gained an authoritative advocate for their cause. 78 Eero Routamo, Rättsvetenskaplig forskning och undervisning, JFT 1970, 417–427. 79 Paavo Kastari, Oikeuslaitos, politiikka ja ideologia, LM 1970, 993. 80 Juha Vikatmaa, Uudistusta tarvitaan, mutta mihin suuntaan? LM 1970, 1013–1015. 81 Simo Zitting, Eräitä ajatuksia oikeustieteen uudistuspyrinnöistä, LM 1970, 1111, 1114.

265 scholarship was ideological and should be openly so, the more traditional scholars argued that it was not and was not supposed to be. At the beginning of the 1970s, scholars were willing to discuss reform, but the difference between critical and traditional scholars was in their perception of the world and thus fundamental. Critical legal scholarship represented a completely different cultural attitude towards law. Legal scholars were, in any event, interested in the presidential interview, and some of them brought more reformist views to the issue. Some scholars paid attention to judicial decision-making. Eero Backman continued the argument that a judicial decision was not a logical syllogism but was dependent on the choice of the premises of the decision and the interpretation of the facts of the case, as well as the legal rules. The interpretation was further structured by personal experience and social ideology.82 Makko- nen wrote that evaluations had an impact on judicial decision-making although it was difficult to specify this in particular cases.83 Some scholars were interested in general issues. Ojanen argued that there was a clear division between normative arguments and descriptions of facts, and the former could not be derived from the latter. Therefore, legal scholars had to realize that their profession was also a part of politics.84 Tolonen argued that legal scholarship should not focus simply on valid law but rather on the development of legal institutions in a broad socio-political context in order to improve the system.85 Alternative legal scholars were fascinated by this asperity and wanted to point out the reasons for the criticism. Although the majority of the academic profession remained traditional, the spirit of reform was widespread. Various arguments for alternative scholarship were offered, the critical notions being the most radical. Finnish legal scholarship was moving in a realistic direction in the 1960s, which obviously reflected the trends in the United States and Scandinavia. Since the American and Scandinavian jurisprudential traditions were much more realist than the Finnish tradition at the beginning of the decade, Finnish critical scholarship was more radical from the beginning. Finland lacked a powerful alternative to the tradition, and thus the critical bloc was small but aggressive. During the 1960s, various sociological approaches as well as criticism of legal reasoning and scholarship emerged, and by the end of the decade, a rebellion against the tradition had begun. The major scholarly motors of the rebellion were the various philosophical schools, including American realism and political jurisprudence, and Scandinavian alternative legal scholarship, but the critique obviously also followed the radicalization of society. Young legal scholars thought that the jurisprudential tradition was out of touch with the social reality and wanted to reform the tradition. By and large, however, the rise of critical legal scholarship at the end of the 1960s in Finland was similar to the United States and Scandinavia. The central elements of

82 Eero Backman, Oikeudellisen ratkaisun loogisista perusteista, LM 1970, 1039–1041, 1050–1054. 83 Kaarle Makkonen, Lainkäyttö ja maailmankatsomus, LM 1970, 1066. 84 Ilmari Ojanen, Staattisesta dynaamiseen oikeuteen ─ Ajatuksia oikeustieteen ei-normatiivisesta ja normatiivisesta kielestä, LM 1970, 1083–1095. 85 Juha Tolonen, Oikeustieteen puutteista, LM 1970, 1100–1108.

266 critical scholarship and its ideological background in the critique of formalist jurisprudence, the emphasis on the historicity and the ideological nature of law, and the emphasis on the rights of the citizen, were established in the 1960s. As we saw, the basic premises of critical legal scholarship were similar in the United States, Scandinavia, and Finland. Although Finnish legal scholarship was more conceptual and formalist than the legal thought in the United States and Scandinavia, Finnish legal scholars were adopting more realist tendencies in the 1960s. With both the application of various philosophical theories and social sciences and the rise of the social radicalism, jurisprudence was acquiring a more critical voice in the late 1960s. The critical legal scholars, then, attacked the traditional conception of legal reasoning and scholarship, depicted them in a very formalist sense, and argued for a total alteration of the basis of the tradition. In Finland, the 1960s was the first time that such a wide-scale attack on the tradition occurred. Thus, the critical scholars of the 1960s made all the critical arguments at once, and the critique was very radical. By the late 1960s, the major schools of alternative and critical legal scholarship, political-behaviorist jurisprudence, empirical and social scientific legal research, and the critique of values had all emerged in Finnish legal scholarship. Within a few years, the more critical notions about legal scholarship had entered the stage of legal discourse. By the mid-1960s, Finnish legal scholars became more interested in the problems of legal scholarship and reasoning. Their theoretical literature was increasingly directed at the indeterminate and political nature of legal scholarship and practice. In the late 1960s, critical legal scholars attacked this notion by arguing that law was completely indeterminate and that traditional jurisprudence was doomed to fail. Thus, both legal scholarship and practice had to change. There were vehement articles spreading the critical arguments which were, then, gathered up in the interview with Kekkonen, which exacerbated both the defense of the traditional law and jurisprudence and their criticism. The atmosphere was congenial for legal polemic, and the following decade proved fertile for alternative and critical scholarship.

2.3 The elaboration of critical legal thought, 1970─1976

The 1960s had created the basis for the time of change in the early 1970s. In the 1960s, law students had become radicalized and active in university politics,86 and although lawyers were not the prime mover of social radicalism and reform, they did participate in the activities of the single cause movements.87 A major event describing the new, alternative thought of the jurists in the 1970s was the revival of the Association of Democratic Lawyers. It was originally founded in 1954 to associate with international

86 Mia Korpiola, Ystäviä, politiikkaa ja oikeustieteen opintoja: Pykälä Ry 1935─2010 (Helsinki: Edita 2010), 154–193. 87 Heikki Pihlajamäki, Kansan ja esivallan välissä: Suomalaisen asianajajakunnan historia (Helsinki: Edita 2009), 229.

267 leftist lawyers and human rights associations and to promote democracy in Finland.88 By the beginning of the 1970s, the association had withered. However, there was a lot of discussion about extending its ideological basis because many of the leftist lawyers of the 1970s felt that the Association of Finnish Lawyers was ideologically one-sided and conservative.89 Thus, the Association of Democratic Lawyers was reformed and revitalized, and began to acquire lots of new members.90 The revival of the association contributed to the organization of reformist lawyers and legal scholars and therefore also to the discussions about law and politics.91 As more and more lawyers and legal scholars had become interested in politics, reform, leftism, and alternative legal scholarship, a need was felt to have an organization for the common cause. That organization already existed, but it simply needed some adjustments. Critical thought was about to expand. Another major trend in the 1970s, though it had begun earlier, was the reorientation of philosophy and the rise of the theory of science. Finnish philosophy and social sciences were dominated by the analytical tradition and logical positivism, but in the 1960s and 1970s, competing schools of thought emerged to explain social phenomena, and scholars became increasingly critical of explaining the social reality through simple observations.92 Among the new trends was Marxism, which became influential, especially in sociology, but in other disciplines as well.93 Following Kuhn and the concept of the paradigm, scholars began to examine the basis of their scholarship.94 Finnish philosophy, sociology, and social and political sciences expanded in the wake of international philosophical trends. New schools of thought appeared and the traditional schools were being criticized. These also had their impact on legal scholarship. The changes in scholarship and especially the debate on the nature of legal scholarship that began at the end of the 1960s produced thoroughgoing changes in legal scholarship. An obvious expression of the transformation was the establishment of legal research and education at the University of Tampere. Legal education was not located in the law faculty, and cross-disciplinary methods came to mark the research, which set out to explain the human behavior underlying the law, not simply the law itself.95 The scholarship at Tampere was a clear attempt to challenge both the traditional legal schol-

88 Markku Fredman, DEMLA RY – Vähän yli 50 vuotta, Oikeus 2005, 436–438. 89 Jyränki 1990, supra n. 75 at 269–270; Pajuoja & Ervasti 1994, supra n. 76 at 156–158. 90 Fredman 2005, supra n. 88 at 440–444. 91 Per Lindholm & Heikki Seppänen (eds.), Oikeus ja politiikka (Jyväskylä: K.J. Gummerus 1971). 92 See Sosiologia 3/1971, 97–180; Ilkka Heiskanen, Sosiaalitieteitten “uudesta” metodologisesta keskustelusta ja sen merkityksestä politiikan tutkimukselle, Politiikka 1/1971, 27–53. 93 Antti Eskola, Länsimainen ja marxilainen sosiologia, Sosiologia 4/1970, 211–216; Antti Kasvio, Timo Kyntäjä, Ilkka Nousiainen, Marxilaisen sosiologian näkökulmia: Teoreettisesta yhteiskuntatutkimuksesta (Helsinki: Gaudeamus 1974). 94 Jyrki Hilpelä, Metodien valintaan ja teorian muodostukseen vaikuttavista tekijöistä, Sosiologia 1974, 178–185. 95 Teuvo Pohjolainen, Johdatukseksi lukijalle, 9, in Jukka Kultalahti (ed.), Tampereen koulun oppihistoria: Julkisoikeus yliopistojen oppiaineen 1965–2011 (Tampere: Tampereen yliopisto 2011), 9–14; Esko Riepula, Mikä henki meitä kantoi? Miten ns. “Tampereen koulu” syntyi? 23–26, in Kultalahti (ed.) 2011, id. at 17–32; Jyränki, Antero: 60-luku ja Tampereen oikeustiede, 46–47. In: Kultalahti (ed.) id. at 45–52.

268 arship and the dominant position of the capital city, Helsinki, thus becoming a fertile place for the currents of radical policy of research and alternative methodologies. It was also a continuation and an expansion of the behaviorist approach that emerged in the late 1960s, best represented by Kivivuori. This new perspective on law and legal scholarship had acquired a strong position during the late 1960s, and the early 1970s, as the critical and alternative scholars of the 1960s were gaining positions at the universities, the new approach was becoming more widespread. The change in the basis of jurisprudence at the early 1970s was a general phenomenon. As we saw, Finnish legal scholarship had been interested in the relationship between reality and language in the 1960s. The early 1970s, however, was a time in which Finnish jurisprudence took many steps towards methodological eclecticism and more inclusive argumentation. Although it remained largely true to the fundamental aspects of the tradition, changes did occur. Legal sociology was developing and becoming more general in Scandinavia in the 1960s. Although Finland lagged this trend, legal sociology made a slow but steady appearance in the early 1970s. Raimo Lahti, whose major contribution concerned scholarship on criminal law, noted the usefulness of legal sociology in studying the legal reality and thus helping traditional scholarship and legislation as well.96 The Association of Law and Social Sciences was founded in 1970 to promote sociology of law and socially oriented legal research.97 The interest in sociology of law fitted comfortably with the pursuit of sociological and empirical jurisprudence and the general interest in examining society. Traditional scholarship was often considered old-fashioned, and alternative legal scholars of the 1970s wanted to expand the basis of their scholarship. According to critical legal scholars, however, sociology of law did not examine the roots of the social functions of law. Eriksson criticized the recent trend in Scandinavian sociology of law, noting that legal sociology alone did not suffice to criticize law. Criticism also had to concentrate on the power structures pertaining between society, the Constitution, and legislation.98 The difference between simply analyzing the gap between law in books and law in action and its causes distinguished critical legal scholarship from the various forms sociological and alternative jurisprudence. The theoretical reorientation and the critical epistemology and analysis of the theory of science provided almost limitless possibilities for analyzing the deep structures of the relationship between law and society. Besides the theoretical reorientation, legal scholars in general became more interested in law in action and the relationship between law and politics. They also became more interested in the nature of their scholarship and its position in society and politics. For instance, Eero Routamo empirically analyzed the relationship between theory and

96 Raimo Lahti, Oikeussosiologian opetuksesta ja tutkimuksesta pohjoismaissa, Contra 3/1969, 26–29, 42–43; Raimo Lahti, Mitä on oikeussosiologia? in Kriminaaliklubi 1920─1970 (Oulu: Pohjois- Pohjalaisten kriminaaliklubi 1970), 55–72. 97 Raimo Lahti, Oikeus- ja yhteiskuntatieteellisen yhdistyksen perustaminen ja oikeussosiologian esiinnousu, Oikeus 2001, 92–93. 98 Lars D. Eriksson, Den konstitutionella lagstiftningen och maktstrukturen, Contra 3/1971, 32–34.

269 practice,99 and in 1971, Blom continued his empirical analysis of law in a study concerning the position of the legal profession in society. He concluded that the profession in general was conservative and identified with the higher social classes.100 Although Blom was more a sociologist than a lawyer, the legal profession, or at least a part of it, was reflecting itself against the society and reconsidering the basis of its scholarship. The trend in the 1970s was to review the theoretical basis of the tradition and contemplate potential for reform. The pursuit of the critical self-reflection and reconsideration of legal scholarship was also apparent in Aarnio’s study on the basis of legal thought from 1971. By now he was much more willing to accept the place of values in legal reasoning and the role of social science in legal scholarship.101 His new book represented the openness towards political elements in law and the comprehensive argumentation of the beginning of the 1970s. Aarnio was not a radical critic of the profession and thus never accepted the critical claim of the utter irrationality of legal reasoning or the integration of legal scholarship into social sciences. However, he too had become more aware of the argumentative and interpretative nature of law and thus stressed them in his new book. Methodological eclecticism and the openness towards new ideas were obvious trends in the early 1970s in Finnish legal scholarship. However, Aarnio never distanced himself completely from traditional scholarship although he tried to reform it. As a legal philosopher, he was interested particularly in Wittgenstein’s philosophy of language and its applicability to legal theory. Thus, he sought to bring legal theory closer to legal practice by acknowledging the uncertainty in legal reasoning. By analyzing the meanings of legal concepts and their practical use from an intentional perspective, he sought to develop a legal theory that could comprehend legal practice in action.102 Aarnio’s practical model of judicial decision-making103 was criticized, however, for presenting judicial decisions as certain, once the intentions of the judge were recognized.104 Since Aarnio combined various aspects, it is difficult to summarize his thinking. In any event, his comprehensive legal theory understood the legal system as a systemic whole within social structures. As he did in the 1960s with his analytical jurisprudence, he still tried to explicate the meaning of legal language in practice, but now his perspective was more open to society. The change in his theory reflected the political debates of the late 1960s and the influence of linguistic philosophy. The more critical influences were seen in the simple, yet elegant and radical theory of legal scholarship of Antti Kivivuori. In 1971, he published his “little red book”, a

99 Eero Routamo, Vaasan läänin lakimiesten suhtautumisesta oikeustieteeseen, LM 1971, 667–680. 100 Raimo Blom, Lakimieskunta ja yhteiskunta (Tampere: Tampereen yliopiston sosiologian laitos, N:o 33/1971). 101 Aulis Aarnio, Oikeudellisen ajattelun perusteista (Helsinki: Suomalainen lakimiesyhdistys 1971), esp. at 26–36, 85–89, 183–199. 102 Aulis Aarnio, Oikeustieteen vieraantuminen, LM 1971, 460–471, 475–479. 103 Aarnio 1971, supra n. 101 at 10–22, 75–85, 104–182. 104 Risto Hilpinen, Praktinen päättely ja oikeuskysymyksen ratkaiseminen, LM 1972, 208–217.

270 pamphlet titled Politische Rechtswissenschaft (Political Jurisprudence), in which he summarized and developed the theory that he had begun a couple of years earlier in his doctoral dissertation. He argued that since law was human activity intended to influence people’s behavior, the purpose of legal scholarship was to study the origins and influences of law. Investigating the relationship between law and politics was especially important, because it had to be assumed that people pursued material interests. People were not to be regarded as atomistic individuals but as components of social classes. In addition, in exploring law in its political context, no distinctions between legal and social science were to be made.105 Political jurisprudence was a combination of the political-behaviorist approach, social science, and critical thought. In a sense, too, it was Marxist legal scholarship, although there were no explicit references to it. The emphasis on social class and law as a means of mediating between them were obvious reflections of the Marxist rhetoric of the early 1970s. Although this short piece did not attract much attention, it reflected several aspects of the 1970s. And although Kivivuori’s political jurisprudence was not Marxist per se, it represented the leftist political rhetoric of the critical legal scholarship of the early 1970s. It also encouraged legal scholarship as part of society and politics, endorsed the material concept of equality, and a teleological approach towards legislation, expressed in brusque terms. This theory made Kivivuori one of the most active and innovative participants in the legal debates of the time. In the early 1970s, then, critical thought was being elaborated, and Marxism was also beginning to have more influence on Finnish legal scholarship. Eriksson was the scholar who most persistently developed the Marxist theory of law. In 1972, his purpose was to distance himself from the analysis of language and develop a structural- materialistic analysis of law, in which law, society, and the state were in a reciprocal structural relationship. He argued that phenomena within the structures developed both as a consequence of external factors and as a consequence of their internal logic, and a dialectical analysis was needed to examine them. Law within the structures followed the trends of the economy and society and the interests of those who benefitted, and legal research had to focus on law as part of this complex process.106 Even though Eriksson combined various aspects, his article was criticized for its determinism.107 Economic factors were indeed significant, and many saw that relations between people were far more complex. In any event, the article was the first explicit and detailed analysis of Marxist theory in legal scholarship. Eriksson was also a pioneer in the Scandinavian context, for, as we saw in the previous chapter, Scandinavian Marxist legal scholarship was also taking its first steps at the time and Eriksson’s article was a source of inspiration, and criticism, for Scandinavian legal scholars.

105 Antti Kivivuori, Politische Rechtswissenschaft (Helsinki 1971). 106 Lars D. Eriksson, Rakenneselitykset marxilaisessa oikeusteoriassa, LM 1972, 151–161. 107 Jaakko Blomberg, Dialektinen päättely ja rakenneanalyysi, LM 1972, 163–165; Reijo Wilenius, Mar- xilaisesta ja hermeneuttisesta oikeusteoriasta, LM 1972, 169–170.

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Marxist elements became relatively apparent in the efforts to develop alternative legal theories in the 1970s. Materialism, values, and ideologies became important concerns for the critical scholars who examined their position in law and legal scholarship in various ways. Tolonen emphasized the study of the historical development of legal phenomena, maintaining that materialism was an important aspect,108 but he was criticized for failing to distinguish between social theory and law.109 Eero Backman, on the other hand, conducted a detailed and theoretical criticism of analytical jurisprudence, arguing that analytical jurisprudence missed the most essential aspect of law; namely, that language was socially constructed and was thus manifested in social structures. He thought that deciphering the linguistic quasi-problems was simply an aspect of scholarship, but it was most important to explore the social structures of law because law and legal scholarship were political to a certain extent and the intentions of the legal actors often emanated from those structures.110 As Marxist thought began to have more influence in jurisprudence, legal scholars began to scrutinize the historical and structural aspects of law. This was a way to affirm the importance of the system and the structures within which the scholars operated and which had unconscious effects on their work. There was an urge to expand the basis of legal scholarship into society and politics. The need to have more alternatives for traditional legal scholarship was manifested in the establishment of the new law journal Oikeus (the Law), published by the Associa- tion of Democratic Lawyers and the Association of Law and Social Sciences in 1972. In the first issue, Aarnio explained the new journal had been founded because there was a general need for critical and open-minded legal research that was free from prejudic- es.111 There were many young, and even older, legal scholars in the early 1970s who were frustrated with the Finnish legal culture, which they found conservative and oppressive. As Aarnio wrote, since the traditional scholarship was too theoretical and fragmented, there was a need for more organized, practical and realistic legal scholarship.112 In the first issues of the journal, scholars dealt with contemporary legal and political problems, such as those of legal scholarship,113 legal education reform,114 criminal law reform,115 and recent court practice.116 The journal thus participated in contemporary debates on scholarship and politics. It also had a difficult beginning, because the Association of Finnish Lawyers refused to give its address file to the editorial board of

108 Juha Tolonen, Oikeusjärjestyksen käsitteestä, LM 1972, 176–188. 109 Juha Manninen, Oikeusjärjestyksen käsittämiseen liittyvistä ongelmista, LM 1972, 200. 110 Eero Backman, Mietteitä analyyttisen oikeusteorian johdosta, II Oikeustiede ─ Jurisprudentia 315, 323–324, 327–340 (1972). 111 Aulis Aarnio, Oikeus-lehdestä, Oikeus 1/1972, 3–4. 112 Aulis Aarnio, Tieteen vapaus ja kokonaisvaltainen tutkimuspolitiikka, Oikeus 1/1972, 11–13. 113 Aarnio 1972, supra n. 112; Esko Riepula, Oikeudellisen tutkimuksen näköaloja, Oikeus 2/1973, 3–8. 114 Olli Mäenpää, Mitä on opiskella oikeustiedettä, Oikeus 1/1972, 4–8; Olli Mäenpää, Opintojen uudistamiskomitea on puhunut, Oikeus 3/1973, 6–9; Niklas Bruun, Vetenskapsmän eller teknokrater? Oikeus 3/1973, 10–13; Kauko Wikström, Mietteitä opintojen uudistamisesta, Oikeus 4/1973, 41–44. 115 Kauko Aromaa, Rikosoikeuskomitea ja uudistukset, Oikeus 1/1972, 44–46; Antti Kivivuori, Kriminaa- lipolitiikka? Kontrollipolitiikka? Oikeus 1/1972, 41–43. 116 Olavi Sulkunen, Mamian juttu ─ työtuomioistuin 63/1971, Oikeus 1/1972, 53–58; Olavi Sulkunen, Chix-puvun juttu ─ Vaasan hovioikeus 13.6.1972. I/116, Oikeus 1/1972, 58–59.

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Oikeus for marketing purposes.117 The traditional profession wanted to maintain the neutrality of the profession and disliked the political tone of the alternative currents, which marked the difference between the tradition and the alternative thought. In any event, the alternative legal scholarship was expanding at the beginning of the 1970s. Now there was an association for lawyers and legal scholars who wanted to promote leftist ideology and politics, and there was a law journal for scholars who endorsed alternative and critical scholarship. Alternative legal scholarship entered a vigorous phase when legal scholars began to question the basis of traditional scholarship to an increasing extent and more and more new theories and methodologies emerged. In addition to Oikeus, the publication series Forum ─ Oikeustiede (Forum ─ Jurisprudence) was initiated in 1971, which became a channel for alternative legal scholarship.118 As the 1970s progressed, the debates on the purposes and methods of legal scholarship expanded and new scholars participated in them. The aggressive edge of the late 1960s was toned down, but the criticism became more theoretical and, moreover, the critical scholars began to debate more with each other. Alternative theories were also elaborated further and applied in research. One of the major new trends of the 1970s was Esko Riepula’s sociological jurisprudence. He argued that legal scholarship should apply more empirical data and methods of social sciences in its analysis.119 Traditional legal scholarship, he thought, was scientifically questionable and socially insignificant. The way to rescue legal scholarship from the crisis was to expand its field of research to encompass social relations.120 Riepula was taking the debate on legal scholarship into the question of whether legal scholarship could be considered as science. He pointed out that the debate of the late 1960s and early 1970s had caused a crisis in jurisprudence, which was to be solved by extending its methodological basis to include the social and behavioral sciences. The early debates had not explicitly dealt with the problem of whether jurisprudence was “science”,121 but now it was coming to the fore.122 The problem concerned the subject of research and the methods of acquiring data and analyzing what had been observed.

117 Aulis Aarnio, Lainvalmistelunäkymiä, Oikeus 2/1972, 4. 118 Eero Backman, Oikeustiede ei välttämättä ole oikeistotiedettä: Forum-oikeustiede-sarjan esittelyä, Sosiologia 1973, 91. In the early 1970s, the editorial board of the new series consisted of Aulis Aarnio, Lars D. Eriksson, Olavi Heinonen, Antero Jyränki, Heikki Karapuu, Antti Kivivuori, and Matti Savo- lainen, most of whom were either critical or alternative scholars at the academy or otherwise represented critical thought. 119 Riepula 1973, supra n. 113 at 5–8. 120 Esko Riepula, Eduskunnan perustuslakivaliokunta perustuslakien tulkitsijana: Valtiosääntötutkimus eduskunnan perustuslakivaliokunnasta perustuslakikontrollia ja perustuslakien tulkintaa harjoittavana toimielimenä vv:n 1907─1972 valtiopäiviltä (Helsinki: Suomalainen lakimiesyhdistys 1973), 58–59. 121 Aarnio had mistakenly criticized Kivivuori for bringing up the question because, he thought, there was no point in debating the scientific nature of legal scholarship since the “criteria of science” were conventional. (Aarnio 1969, supra n. 52 at 373–374.) Kivivuori responded that he was not talking about whether legal scholarship was “scientific” but whether it was meaningful. (Kivivuori 1969, supra n. 53 at 407.) 122 Aulis Aarnio, Oikeustiede ja “oikeustiede”, Oikeus 2/1973, 9–13.

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The idea behind the alternative methodologies was that they would provide more accurate information about law. In his doctoral dissertation, Riepula applied his methods while examining the practice of the constitutional committee of the parliament in interpreting the Constitution. He related the practice to the political context and to the political composition of the committee, concluding that its interpretation did follow the political biases and interests of its members to a certain extent.123 The treatise was an obvious expression of combining social science with legal scholarship. It was an empirical, realistic study on constitutional interpretation, which was not seen simply as a legal activity, but first and foremost as a political activity. It was a continuation of the political-behaviorist jurisprudence of Kivivuori and an application of American political jurisprudence in the Finnish context as well. The treatise was thus also an expression of the influence of American political jurisprudence and judicial realism on Finnish legal scholarship. Since there was no judicial review in Finland, the interpretation of the Con- stitution was the business of the constitutional committee of the parliament, and thus a realist study on the practice of the committee was a version of Finnish realism and political jurisprudence. Although no realist legal theory was adopted in Finland, the legal scholars generally took steps in that direction during the 1960s and 1970s. Until the 1960s, the dominant opinion was that there was only one correct solution to a legal case, and the purpose of the courts was to reach that decision.124 The doctrine of single correct solution was criticized in the 1960s,125 and by the 1970s, more legal scholars acknowledged that there was room for discretion and interpretation in legal decision-making to the extent that the idea of one right decision seemed untenable.126 Thus, by the mid-1970s, the single correct solution doctrine was widely discredited.127 Finnish legal scholars abandoned the idea of legal reasoning as simple logic, but their general opinion should be depicted

123 Riepula 1973, supra n. 120 at 119–129, 136–146, 172–180, 200–218, 224–231, 245–274, 280, 285– 286, 301–303. 124 See, e.g., Veli Merikoski, Vapaa harkinta hallinnossa (Helsinki: Suomalainen lakimiesyhdistys 1958), 46–47. 125 Kauko Sipponen, Yhden ainoan oikean tai tarkoituksenmukaisen ratkaisun periaatteista, LM 1965 197–212; Makkonen 1965, supra n. 30; Eriksson 1966, supra n. 40. 126 Aimo O. Aaltonen, Havaintoja lainkäytöstä, LM 1971, 578; Aarnio 1971, supra n. 101 at 70–75; Matti L. Aho, Tuomioistuimen harkintavalta ja tuomarin sosiaalinen rooli, DL 1969, 465–467; Backman 1970, supra n. 82 at 1037–1038; Jokela 1970, supra n. 68 at 849–850; Paavo Kastari, Tuomioistuinten riippumattomuus ja demokraattisuus, LM 1971, 421; Hannu Tapani Klami, Johdatus oikeustieteelliseen analyysiin (Turku: Turun kauppakorkeakoulun julkaisuja 1973), 4, 58–59; Makkonen 1970, supra n. 83 at 1057– 1058, 1063–1068; Kari S. Tikka, Veron minimoinnista: Tutkimus tulo- tai omaisuusverosta vapautumisen tarkoituksessa tehdyistä toimista lainsoveltamisongelmana erityisesti silmällä pitäen verotuslain 56 §:ää (Helsinki: Suomalainen lakimiesyhdistys 1972), 54–80. Finnish legal scholars have long been aware of the discretion in legal reasoning and the personal input of the judge in adjudication. (See Susanna Lind- roos-Hovinheimo, Miten lakia tulkitaan? ─ Erään oikeusteoreettisen kysymyksen suomalaista historiaa, LM 2011, 278–298.) The fact that extra-legal factors can have an influence on judicial decision-making was thus not an invention of the 1960s but it was more important than it had been. Theories hardly ever come out of nothing, but the fact that similar arguments have been advanced before does not mean that they have been dominant or even widespread at that time. 127 Max Oker-Blom, En enda riktig lösning trots allt? ─ Dworkin mot finländsk bakgrund, JFT 1978, 252–253.

274 rather as balanced realism than realism proper, because only a very few spoke for complete indeterminacy or structurally biased judicial decision-making. The majority emphasized that there were reasonable limits for legal discretion, and that legal education helped the legal decision-maker to stay within a legally sound interpretation. The situation was somewhat similar in Finland to that in the United States and Scandinavia in that scholars admitted the margin of error in legal reasoning, but disagreed as to its nature and extent. The critical scholars, of course, went further and sought to reveal the irrationality of legal reasoning. In this regard, then, the fundamental characteristic of the critical thought was clear. Criticism of the pursuit of rationality became obvious in the critique of legal concepts. Tolonen argued that even analytical jurisprudence took legal concepts as given and did not analyze their historical origins or their functions in modern society, even though these aspects were essential for legal analysis.128 Besides history, he also stressed the significance of theory in sorting out the meaning of the legal concepts.129 Marxist legal scholars also stressed the importance of history for understanding the actual purpose of the legal concepts and their contemporary relevance.130 Eriksson thus criticized the artificial distinction between public and private law, arguing that purely legal perception of concepts such as freedom of contract and property rights blurred the fact that these concepts incorporated aspects of social power and enabled the creation of new law through interpretation.131 Even if analytical jurisprudence explained the meaning of concepts in actual cases, it was not realistic according to the critical scholars because they wanted to study the reality behind the concepts as well. Historical and social analysis was regarded as important, and the more the scholar endorsed Marxist theory, the more he emphasized the significance of the social power structures underlying law. Marxism was becoming a common framework for critical legal scholarship in the 1970s, but the Marxist scholars were not unanimous about every aspect. For instance, both Eriksson and Helge Rontu, a slightly older lawyer who had been active in legal politics, studied corporate liability from a Marxist perspective but drew differing conclusions. Rontu supported corporate liability from a social point of view,132 but Eriksson disagreed, arguing that it hid personal liability behind the corporate veil and enabled the corporations to reallocate the damage to the consumer following the punishment. There- fore it was just another way to protect capital.133 The former argument was a direct response to the problems of capitalism whereas the latter sought to analyze the effects of

128 Juha Tolonen, Siviilioikeuden yleisten oppien kriisi, Oikeus 1/1973, 12–15; Juha Tolonen, Om begreppet rättshandling inom det traditionella rättssystemets ram, JT 1973, 359–360. 129 Juha Tolonen, Teoreettisesta tutkimuksesta ja sen merkityksestä oikeustieteessä, Oikeus 4/1974, 37– 40. 130 Helge Rontu, Oikeus luontoon, Oikeus 1/1973, 21–24. 131 Lars D. Eriksson, Kritik av den rena civilrätten, Oikeus 3/1974, 23–25. 132 Helge Rontu, Yhteisörangaistukset ja liberaali kriminologia, Oikeus 2/1973, 25–26. Rontu was born in 1924 and was an active leftist jurist in the 1950s, before the rise of critical legal scholarship in the 1960s. In the 1960s and 1970s, he participated in the critical debates but was involved more in politics than in academic scholarship. 133 Lars D. Eriksson, Bör samfund straffas? Oikeus 2/1973, 27–32.

275 law further. Critical legal scholarship was interested in the social functions of legal concepts and directed analysis to them, but the argument among the scholars differed in detail. The reconsideration of the relationship between consciousness and social and legal awareness was a consequence of the rise of Marxism, as well as of critical epistemology, the theory of science, and the new ways of comprehending social reality. All these were clear in the theory that Juha Tolonen elaborated in his doctoral thesis, in which he analyzed the relationship between empirical observations and theories and concepts, because, he argued, the former needed the latter in order to be comprehensible, whereas the latter needed the former in order to have relevance. He argued that since society created criteria against which the appropriateness of legal institutions was measured, scholarship needed a historical conception of legal phenomena in order to understand their true essence and functions in society.134 The most important aspect was the elaboration of a new legal theory according to critical epistemology. The implications of the book were the pursuit of a critical understanding of reality and legal institutions. There were obvious Marxist traits without however any specific emphasis. The rising interest in Marxism and the theoretical sophistication of critical scholarship opened up new potential for criticism. As in the United States and Scandinavia, the critical scholars began to debate their theories among themselves. As we saw in the previous chapter, Scandinavian Marxist legal scholars debated the basis of Marxism in the 1970s when the scholarship began to expand. This happened in Finland as well. Eriks- son criticized Tolonen’s theory for its structuralism and idealism and the lack of critical potential, pointing out that the analysis was simply technical if the development of law was not seen in the context of the social and economic power structures.135 As compared to Scandinavia and Western Europe, Finnish legal scholars were more concerned with Soviet legal theory and Marxism-Leninism. Thus, Marxist and Socialist legal theory were often presented in a good light, emphasizing their scientific aspects.136 The Finnish political left in general was relatively accommodating towards socialism. Nei- ther did the critical scholars hesitate in viewing Soviet scholarship and socialist society positively. Socialism was part of the critical rhetoric and a powerful counter-argument in Finnish society, and thus it was applied in scholarly discourse as well. The use of Marxism opened up many opportunities but also caused controversies between scholars. Olli Mäenpää related Marxist scholarship to the question of what was considered as legal science. He argued that since the relationship between law, society, and the economic basis of society determined the content of law in the last resort, legal scholarship had to concentrate on these in order to be science. Consideration was also to

134 Juha Pentti Tolonen, Der allgemeine Erklärungshintergrund der wirtschaftlichen Ordnung und seine Anwendung auf das Aktiengesellschaftsrecht: Rechtsvergleichende Untersuchung (Helsinki: Suomalainen tiedeakatemia 1974), esp. at 12–16, 23–27, 30–31, 34–35, 43–44, 92–106. 135 Lars D. Eriksson, Ekonomisk teori och aktiebolagslagstiftningen, Sosiologia 1975, 157–160. 136 Antero Ignatius, Neuvosto-oikeustiede ─ Edistyksellisten lakimiesten ensyklopedia, Oikeus 3/1973, 29–38; Timo Lahelma, Pari sanaa sosialistisesta oikeuskäsityksestä, Oikeus 1/1972, 73–75; Raimo Blom, Valtion ja oikeuden tieteellinen käsittäminen, Oikeus 4/1974, 40–46.

276 be given to the division between the form and substance of law, as well as to the notion of law as an ideology and superstructure.137 Mäenpää was criticized for not being able to produce any valid theory of scientific legal scholarship or verification of interpretation.138 Furthermore, Antero Ignatius pointed out that Mäenpää’s analysis was seriously flawed. He argued that Mäenpää had neglected dialectical materialism in his theory and was ambiguous in his notions on the relationship between theory and practice.139 Elabo- rating a solid critical theory of law that would be both practical and scientific was well intent but difficult in practice. Young Marxists were eager to develop new theories that would respond both to the contemporary need to reform legal scholarship and to the critical thought of the time, but the task was hard. Nevertheless, Marxism interested critical legal scholars because of its critical potentiality especially in a Western, liberal- bourgeois state that was based on a capitalist economy. Besides the critical scholarship, Finnish legal scholarship was in a dynamic state in the 1970s. Thus, to illuminate the context of the critical scholarship, it is important to take a look at the change that surrounded it. Legal scholars developed many theories that could overcome the problems of traditional positivism but which would not succumb to critical thought. The emphasis on values and policies became more frequent although traditional scholars warned about the dangers of the politicization of scholarship.140 The creation of the new approaches was nonetheless widespread. One of the new currents was a system theory of law which, as Kauko Sipponen had already argued in 1970, could help to understand law in its social context and its relations with social phenomena.141 Alternative legal scholars saw the system theory as a valuable alternative to traditional scholarship because it could open law up to society in various practical matters, such as judicial decision-making and legislation.142 Non-legal scholars also participated in developing the theory by arguing that system theory could help to analyze judicial decision-making.143 System theory was a method of locating law in context and placing values in legal analysis without however making any radical arguments about the irrationality of law. It was also an expression of applying non-traditional methods in legal scholarship and thus widening its theoretical basis. The social orientation of alternative legal scholarship was also of practical use. Both legal scholarship and law-making were opening up more toward society. The idea of directing social and economic development through active regulation originated in

137 Olli Mäenpää, Oikeustieteen tutkimuskohteesta, Oikeus 4/1974, 30–34. 138 Markku Helin, Edellisen johdosta, Oikeus 4/1974, 35–36. 139 Antero Ignatius, Kommentaari oikeustieteen kohteeseen, Oikeus 1/1975, 9–15. Mäenpää replied only partially to the criticism, arguing that legal scholarship can and should pursue the truth, since, according to Helin it was impossible, and according to Ignatius it was meaningless. (Olli Mäenpää, Kritiikin johdosta, Oikeus 1/1975, 16–17.) 140 Simo Zitting, Juridiikka ja politiikka, LM 1973, 84–90. 141 Kauko Sipponen, Oikeuslaitos systeemiteorian kannalta tarkasteltuna, LM 1970, 619–628. 142 Rauno Halttunen, Markku Helin, Heikki Mattila, Matti Mikkola, Ahti Saarenpää, Oikeustiede ja systeemiteoria, LM 1972, 115–133. 143 Seppo Laakso, Systeemimalli oikeudellisen ratkaisu- ja tulkintatoiminnan kuvaajana, LM 1973, 661– 691; Heikki Heiskanen, Oikeusoppia systeemiteoreettisesti tarkasteltuna, IV Oikeustiede ─ Jurisprudentia 185–275 (1973).

277 the early 1960s.144 The social policy of the 1970s followed the optimism over social planning,145 and social data and values had ever more influence in legislation.146 A reflection of the social planning of the 1970s, as well as of the rising interest in sociology of law and social sciences in legal research, was the foundation of the National Re- search Institute of Legal Policy, OPTULA (Oikeuspoliittinen tutkimuslaitos) in 1974, which replaced the Institute of Criminology which had been established in 1963.147 Its foundation encouraged socially-oriented legal scholarship by providing work for legal scholars and markets for research. The readiness to reform both law and legal scholarship was widespread, the critical and the leftist thinking being simply its most obvious articulations. In addition to the increased interest in empirical legal research, legal scholars were also concerned about the theoretical aspects of jurisprudence. Theoretical jurisprudence was modified to fit the new needs of society and the profession. Aarnio participated actively in the critical debates and elaborated new ideas on legal theory and scholarship. He thought that it was important to reconsider the premises of legal scholarship because to a certain extent they depended on the social circumstances.148 He argued that values did have a role, but not a decisive one in legal scholarship,149 which thus always had an element of politics but was never entirely political.150 In a study published in 1975, he summarized the concepts he had developed during the 1970s, pursuing a thorough understanding of law in its social and scientific context, an understanding legal theory.151 His point of departure was the analytical tradition of Finnish jurisprudence, which he modified with Scandinavian realism, linguistic philosophy and deontic logic, and hermeneutics, and which he sought to adopt into the contemporaneous critical debates. He also relied heavily on the literature of Otto Brusiin, a realist Finnish legal philosopher whose ideas were widely discredited in the 1930s when they were first published. Aar- nio sought to demonstrate how legal decision-making and scholarship were simultane- ously dependent on both social structures and the inner structures of the legal system. Not being a critical scholar, he debunked the thoroughgoing formalism as well as the notion of the complete irrationality of law, thus balancing between traditional and critical scholarship.

144 Pekka Kuusi, 60-luvun sosiaalipolitiikka (Porvoo: Werner Söderström Osakeyhtiö 1963) (1961). 145 Kekkonen 1998, supra n. 6 at 111–112. 146 Markku Tyynilä, Lainvalmistelukunnan ja lainvalmisteluosaston vaiheita 1884─1984, 76–77, in Antti Kivivuori & Leena Vettenranta (eds.), Lainvalmistelun historiaa: Lainvalmistelukunnan ja oikeusministe- riön lainvalmisteluosaston vaiheita 1884–1984 (Helsinki 1984), 9–90. Kivivuori worked as the chief of the legislative department of the ministry of justice from 1971 onwards, and brought the more social and critical tone into law-making. 147 For a critical review of the foundation of the institute, see Markku Tyynilä, Syntyneitä: Oikeuspoliit- tinen tutkimuslaitos 1.3.1974, Oikeus 1/1974, 37–42. 148 Aulis Aarnio, Suomalaisen oikeusteorian kehityspiirteitä, LM 1973, 339–340, 370–373. 149 Aulis Aarnio, On the Role Played by Social Values in Jurisprudence, JFT 1975, 34–50. 150 Aulis Aarnio, Vad är rättspolitisk forskning? JFT 1975, 122–140. 151 Aulis Aarnio, Laki, teko ja tavoite: Tutkimus tavoitteellisuudesta lain tulkinnassa ja sen soveltamisessa. (Helsinki: Lainopillisen ylioppilastiedekunnan kustannustoimikunta 1975).

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Recent trends in jurisprudence and philosophy were apparent in Aarnio’s combination of contradictory perspectives. Although he acknowledged that judicial decision- making could be arbitrary, he suggested that the theory on judicial decision-making had to be based on rationality.152 He argued that Finnish legal scholarship was based on a positivist paradigm and doctrinal analysis of law, but he also recognized the usefulness of other methods and wanted to scrutinize the premises of positivism critically without however abandoning the tradition.153 He also argued that teleological theory, sociological jurisprudence, and Marxist legal scholarship served important interests but could not form the basis of legal scholarship alone.154 Aarnio was distancing himself from the subjectivity of legal reasoning he had stressed before. Now he was elaborating a systematic theory of law in which the goal- oriented reasoning and the obscurities of law would be understood in the context of the legal system. The pursuit of synthesis and objectivity did not, however, please critical scholars. Tolonen criticized Aarnio for missing the structural connections of law. In addition, he argued that there could have been no objective systematization because concepts were always one-sided, and hence ideological, descriptions of reality.155 Marx- ist scholars criticized Aarnio for his idealistic subjectivism and neglecting the social construction of law and reality. Backman and Mäenpää argued that Aarnio had missed the way society constituted the knowledge of the individual. This idealist conception of reality ignored the fact that human consciousness was subordinated to objective reality. Marxist legal scholarship was practical precisely because it considered law as a social construction.156 The fundamental difference between Marxist scholarship and what was labeled as traditional was that Marxist legal scholarship stressed the importance of dialectical analysis of the relationship between society and law, whereas traditional legal thought, or bourgeois as the Marxists often called it, sought to mask that relationship.157 Apart from the sociological aspect that marked the critical enterprise, the criticism of values and ideologies was another fundamental element of critical scholarship. Criti- cal scholars argued that society created boundaries for individual consciousness and imposed some values on them while excluding others. Thus, they thought that legal theory that stressed the importance of subjective values but neglected their social origins missed an essential aspect of legal analysis. The question was not simply whether values influenced law, but rather what values, how they were constructed, and why it was just these particular values that mattered. Critical scholars understood law as a positive system, but they were dissatisfied with the understanding of law at face value, without considering the motives behind its goals and values. They thought that the traditional pursuit of rationalizing of what they thought was ambiguity was a denial of the ideology underpinning law, and therefore contributed to the mystification and reification of law.

152 Id. at 120. 153 Id. at 33–36, 208–377. 154 Id. at 247–261, 289–290. 155 Juha Tolonen, Laki, teko ja tavoite [book review], LM 1976, 105, 107. 156 Eero Backman & Olli Mäenpää, Todellisuus vai tavoite? Oikeus 1/1976, 31–39. 157 Ignatius 1975, supra n. 139 at 10, 15.

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In the mid-1970s, critical legal scholarship was acquiring new dimensions, and its basis was being explained. As in other disciplines, Marxism was becoming a worthy method of legal research, not just a tool of criticism. The origins and functions of values within law were precisely relevant for critical legal scholarship. Critical scholars clarified the meaning of Marxism in jurisprudence158 to show that it was not simply an ideology. Eriksson was also elaborating his thinking further by building his premises on a more nuanced philosophical basis. For him the relevant question was not what was or what ought to have been, but rather what the essence of the legal phenomena was. The essential point was thus to construct the dynamic of the inner logic of law in its historical and social context.159 According to Eriksson, law turned material relations into legal concepts and hence into an ideology, and the purpose of the critical legal scholarship was to unmask this ideology,160 because only by realizing the social connections of law and its inner logic could people be emancipated and create real alternatives to the existing law.161 The focus was moving from values to their origins and purposes. Critical scholars considered even legal realism as “unrealistic” because it did not pay due attention to the factors underlying the values in law. Critical scholarship thus adopted a perspective on law that diverged from the traditional one completely. The philosophical addition to Marxism turned the analysis towards the essence of society. Critical legal scholarship went beyond the efforts of empirical and sociological jurisprudence, since they were simply concerned with the law in action, not about its ultimate motives. Law was a human activity, but it was it for a purpose. According to Eriksson, the purpose of law was to promote the interests of the ruling social class, namely the economically powerful class. Critical legal scholarship therefore explicated the structural dependencies and contradictions within law, unmasked and demystified its ideological elements, and provided alternatives.162 The basis of critical legal scholarship was still the same but, as Eriksson became more familiar with Marxist literature, he was able to enhance and hone his arguments. Finnish Marxist legal scholarship of the mid- 1970s was no longer simply an ideology, but was becoming more of a theory, or rather a set of theories. The discussion of the methods and purposes of legal scholarship continued, and legal scholars became interested in the foundation of their scholarship.163 Marxism, on the other hand, became a method of critical or realist legal scholarship. Tolonen continued elaborating his theory by stating that Marxism did not replace traditional scholarship but complemented it by correcting its flaws and inadequacies. Dialectical materialism was a method of analyzing the gap between law in books and law in action as an

158 Juha Tolonen, Om förhållandet mellan rättsordningen och det ekonomiska systemet, JFT 1976, 100– 107. 159 Lars D. Eriksson, Hegel och rättsfilosofins förnyelse, JFT 1975, 70–76. 160 Lars D. Eriksson, Kritisk rättsteori såsom ideologikritik, JFT 1975, 326–333. 161 Eriksson 1975, supra n. 159 at 77. 162 Lars D. Eriksson, Om rättens samhälleliga förankring, JFT 1976, 86–94. 163 Aulis Aarnio, Teoreettisen tutkimuksen merkityksestä oikeustieteelle, LM 1976, 547–581; Juha Pöy- hönen, Om forskning om rättsvetenskap, JFT 1976, 456–483.

280 ongoing process. Thus critical scholarship avoided a basic flaw of traditional scholarship, in which conceptions of the scholar masked the subject and excluded the possibility of alternative perspectives.164 Blom also combined the aspects of theoretical and empirical research by arguing that scholarship aimed to renew reality as it was understood and conceptualized. He thought that research had to take the historical and social development of concepts into account and analyze their relationship with empirical reality.165 By the mid-1970s, critical legal scholarship had established its position as a method of analyzing theoretical and empirical material. It was not a major paradigm, but it was a paradigm for those who were not content with the traditional scholarship. Although no major transformation of the paradigm had occurred, the methodological basis of legal scholarship had expanded. The paradigmatic nature of the critical thought reveals a lot about the critical debates. There was no predominant paradigm of legal scholarship in the late 1970s, or if there was, it was very difficult to adumbrate it. Nevertheless, the critics chose analytical jurisprudence as their target,166 despite Aarnio arguing that it was not the dominant paradigm.167 The critics needed a target and they chose analytical jurisprudence because it was a modern and a widely-used method of legal scholarship. Although their criticism often concerned the methods of conceptualism, there was no point in criticizing it because that had already been done, not least by the proponents of analytical jurisprudence. Criticism needed a target that could be labeled as conservative in order to make the alternative appear progressive. The critical scholars of course felt that traditional legal scholarship was conservative and out of touch with reality because of their different perspective on the problems. Critical legal scholarship was about new conceptions of law, society, and scholarship, its basis being the way the critical scholars understood society and the role of their profession within it. Indeed, the critical scholars wanted to change their profession, and the elaboration of alternative legal scholarship continued. In 1976, Backman noted the insufficiency of the critical debates and sought to develop alternative legal scholarship by specifying its theoretical basis and the use of the social sciences as well by focusing on those elements of social science which were meaningful for legal scholarship. He suggested that the purpose of legal scholarship was to investigate law and the state because law was dependent on the type and the form of the state. The state, however, was a subject of legal research only to the extent that it created and supported law, because, just as it was a mistake to detach law from its political connections, it was a mistake to draw a parallel

164 Juha Tolonen, Marxilaisesta oikeustieteestä, 38–50, in Arvo Myllymäki & Annikki Parhakangas (eds.), Oikeudellisen tutkimuksen problematiikkaa (Tampere: Tampereen yliopisto 1975), 36–53. 165 Raimo Blom, Ajatuksia oikeuden tutkimusmetodologiasta, 24–26, 30–33, in Myllymäki & Parhakan- gas (ed.) 1975, supra n. 164 at 24–35. 166 Backman 1972, supra n. 110; Eriksson 1969, supra n. 54; Kivivuori 1970, supra n. 69. 167 Aarnio 1973, supra n. 148 at 371.

281 between them.168 Those who wanted to integrate legal scholarship into social science were not particularly concerned about the various schools of social sciences or their practical applicability to legal scholarship. As the time went on, however, they had to be more specific about their arguments lest they repeat the same ones over and over again. Alternative legal scholarship had developed greatly since the mid-1960s when the arguments against traditional legal scholarship began to be heard. The rebellion on methods was fully apparent by the end of the decade, and the critical scholars called for a jurisprudence that would be open with values and policies in law and apply the social science methods in legal research. They argued that the tradition was dominated by formalism which detached law from social reality and presented rules and concepts as natural. The interview with the President Kekkonen in 1970 brought the critical arguments clearly before the legal profession, and the debates on the methods and purposes of legal scholarship continued. The 1970s also brought Marxist theory into critical legal scholarship, although elements of it had been apparent in the 1960s. By the mid-1970s, critical and alternative legal scholarship had a sophisticated and well-defined theoretical basis. The development of the critical legal scholarship was similar in Finland to that in the United States and Scandinavia. The fundamental arguments and the ideological background were established in the 1960s, and the theoretical basis was elaborated and the scholarship became more widespread during the 1970s. Like their Scandinavian colleagues, the Finnish scholars found a common basis in Marxism, and with varying interpretations. Finnish scholars also became interested in political and behaviorist jurisprudence. Critical legal scholarship thus acquired two main currents; empirical and sociological jurisprudence on the one hand and the criticism of values and ideologies on the other. Critical legal scholarship reflected the broader transformation of legal scholarship, being its most extreme and radical demonstration. In addition, the Finnish critical scholars organized themselves, but this occurred earlier than in the United States or Scandinavia, and in closer cooperation with the profession itself. Of course, the Nation- al Lawyers Guild in the United States had functioned as an alternative professional organization for decades before the 1970s. Nevertheless, Finnish critical legal scholarship was radical and socially active. The development of the critical legal scholarship, however, involves several aspects besides jurisprudence, and these will be dealt with in the following sections.

168 Eero Backman, Rikoslaki ja yhteiskunta I: Teoreettinen erittely rikosoikeuden tieteenkäsityksistä 1800-luvulla ja sen konkretisointi moraalin, uskonnon ja rikoslain suhteisiin Suomessa vuosina 1894─1917 (Helsinki: Suomalainen lakimiesyhdistys 1976), 12–27.

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3 Criticism of constitutional law, 1967─1978

3.1 Constitutional law and scholarship

The intense discussions of constitutional law in the 1960s and 1970s in Finland provide insights into social radicalism and alternative and critical legal scholarship. The Consti- tution of Finland was enacted in 1919, in the aftermath of the civil war once the revolutionary left had been defeated. Thus, the Constitution established a liberal-bourgeois society in which the strong powers of the President were meant to maintain a stable buffer against radical reforms.169 Nevertheless, full democracy and the freedom of expression and assembly were guaranteed.170 Finland was by no means a fascist country. Rather, its society was based on contemporary Western liberal-bourgeois ideals of the rule of law and equality before law. However, it was precisely the bourgeois-liberal society that the radicals of the 1960s criticized, arguing that it protected the freedom and values of the economy while suppressing the values of the less-privileged classes. The critical argument was that formal equality masked the actual inequality, and it was precisely in the criticism of constitutional law in which this argument was most pronounced. In this section, I will therefore discuss the critical analysis of constitutional law and the judiciary, because these were the most radical parts of the critical legal scholarship, and those in which the connection between theory and practice was the most obvious. The basis of the criticism of constitutional law was established in the late 1960s. The Constitution was placed under critical scrutiny after the mid-decade,171 and in 1967, Lars D. Eriksson explained all the critical objections the political left had to it in legal terms. According to Eriksson, the Constitution was a political document that established a capitalist society, since no real democracy could exist without democracy in the economy. The formalist-legalist bourgeois hegemony had masked the fact that the judiciary was biased towards the capitalist interests and that the system of legislation protected the status quo. Thus, only fundamental changes could bring reform.172 Evident in the criticism was the socialist rhetoric that demonstrated the evils of capitalism. It also illus- trates the political connections of critical thought. Critical scholars argued that law was inherently related to the economic basis of society, which created social inequalities, and the traditional scholarship masked and legitimized the prevailing circumstances.

169 Risto Alapuro, State and Revolution in Finland (Berkeley: University of California Press 1988), 202– 208; Kekkonen 1998, supra n. 6 at 65–66. The original Finnish Constitution consisted of four documents enacted in between 1919 and 1928, the most important being the Form of the Government of 1919. 170 Kekkonen 1998, supra n. 6 at 59–64; Ylikangas 1987, supra n. 4 at 169–172. Some liberal reforms had already been executed in 1917, the year of independence, before the civil war, such as franchise without property limits and a law on an eight-hour work-day. (Kekkonen 1998, id. at 47.) 171 See “Keskustelu Suomen valtiosäännöstä”, Politiikka 1/1967, 16–30. 172 Lars D. Eriksson, Politisk demokrati och socialism, FBT 1/1967, 9–14.

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The purpose of critical scholarship, on the other hand, was to disclose reality, the openly political tone being a fundamental feature of critical scholarship. Besides the fundamental aspects of the Constitution, the rights of the citizen were another concern of the critical scholars. Jyränki noted that the traditional conception of rights as protection against the state was very static. Since they concerned questions of values, however, rights played an important social role, and a social conception of them would improve equality as well as social conditions.173 Important for Jyränki was to reconsider the conception of rights and their functions in society, since the simple fact that they were stipulated in the Constitution could not guarantee their actual significance. Later he took these arguments further, arguing that legal practice had increased the importance of property rights as related to other rights,174 and that the law on national broadcasting led to factual limitations on the freedom of expression.175 Essential in the critical thought was the argument that constitutional ideology delimited the execution of rights, which then became the object of research, for which the radical social thought provided further impetus. Critical legal scholarship essentially meant a critical comprehension of law, an alternative way to determine the legal and social reality. The criticism of the Constitution intensified at the end of the 1960s. The cause of the critical legal scholars was popularized in collections of addresses and pamphlets in which the arguments for the inherent inequality of constitutional law were put forward.176 The problem with the constitution was that it reflected the social power structures and the relations of production, but this was obscured by traditional legal consciousness.177 A general argument was that the Constitution was deliberately conservative to obviate any real social reform.178 Critical scholarship was radical in the sense that it went to the roots of the problem, which in this case were in the constitutional system and social structures. Criticism was therefore to be directed at the system. To the critical scholars, the Constitution was not simply a legal document but a tool of social organization.179 Since the criticism reflected leftist thought, the criticism of the constitutional system was related to the concept of private property and its constitutional protection. Hence, Riepula argued, the ideology of the bourgeoisie had been insinuated into the Constitution,180 and Jyränki explained that this was so because the

173 Jyränki 1968, supra n. 44 at 978–993, 999. 174 Antero Jyränki, Valtiosäännön säätäjien tarkoitukset ja noudatettu käytäntö, Sosiologia 1/1968, 20–28. 175 Antero Jyränki, Yleisradio ja sananvapaus: Tutkimus valtionvalvonnasta ja sananvapaudesta yleisradiotoiminnassa (Helsinki: Tammi 1969), 133–146. 176 Antero Jyränki & Esko Riepula (eds.), Mitä muuttaisin hallitusmuodossamme: Puheenvuoroja Suomen hallitusmuodon 50-vuotispäivän johdosta (Tampere: Tampereen yliopisto ─ Oikeustieteen laitoksen monistesarja 4/1969); Tala (ed.) 1969, supra n. 46; Karapuu (ed.) 1970, supra n. 46. 177 Lars D. Eriksson, Staten och samhället: Till den marxistiska demokratikritiken, Sosiologia 6/1970, 313–321. 178 Antero Jyränki, Perustuslain muuttamismahdollisuudet, 93, in Karapuu (ed.) 1970, supra n. 46 at 93– 99; Ilkka Saraviita, Eduskunnan vallan tarpeettomat rajoitukset, 31–33, in Karapuu (ed.) 1970, supra n. 46 at 25–44. 179 Lars D. Eriksson, Jugoslaviens socialistiska demokrati, Oikeus 3/1973, 25. 180 Esko Riepula, Näkökohtia valtiosääntömme arvomaailmasta ja valtasuhdejärjestelmästä (Tampere: Tampereen yliopisto ─ Oikeustieteen laitoksen monistesarja 3/1969), 13–20.

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Constitution was drafted in accordance with the interests of the bourgeoisie as a consequence of the civil war.181 This led to the reconsideration of the concept of rights and their constitutional protection. The critical opinion was that private property had a dominating position in Finnish society, and that democracy in the economy was needed in order to produce genuine democracy.182 The Constitution was obviously drafted during controversial times, but whether it incorporated a particular kind of society and economic system is a matter of debate. The arguments of the critical scholars reveal more about their interpretation than about the Constitution as such. Their perception conformed to the radical leftist thinking of the 1960s and differed from the traditional view that considered the Constitution rather as a legal document. In attacking the fundamentals of constitutional law the question of industrial democracy was also debated. The critical scholars opined that industrial democracy would contribute to the real sovereignty of the people. Eriksson wrote that since the sanctifica- tion of private property caused problems of democracy and equality,183 decision-making should be brought closer to the citizen instead of being concentrated in the hands of the ruling elite,184 and the conceptions of share-holding and joint-stock companies should be reconsidered.185 Jyränki explained that the constitution stabilized the situation so that the minority which held the economic power could avert any fundamental changes. The contemporary society was a society of inequalities, which the law protected. Constitu- tional scholarship had also contributed to the maintenance of the bourgeois consciousness, which masked the true nature of social relations.186 For the critical scholars, the constitution was a fortress of indoctrination of false consciousness, and thus minor changes would not produce any real reform. What was needed, rather, was a fundamental change in the Constitution and in the traditional legal consciousness. The split between the critical and the traditional scholars was obvious in their conception of property. A traditional response was that the critical scholars had exaggerated the meaning of property. Although a more flexible concept was needed, property rights were still to be strictly protected.187 Traditional scholars argued further that the critics had misinterpreted the purpose of the protection of rights while relating property rights to personal liberties.188 To view property as a social concept was a radical break from the tradition, which obviously seemed irrational to traditional legal scholars. It was a

181 Antero Jyränki, Kriittinen katsaus perustuslakiemme syntyvaiheisiin, 15–23, in Karapuu (ed.) 1970, supra n. 46 at 11–24. 182 Kettil Bruun & Antti Eskola (eds.), Taloudellinen valta Suomessa (Helsinki: Tammi 1969). See also Antti Eskola, Taloudellinen valta demokratiaan pyrkivässä yhteiskunnassa, in Bruun & Eskola (eds.) 1969, id. at 205–222. 183 Lars D. Eriksson, Arbete eller saker? Contra 4/1969, 8–9. 184 Lars D. Eriksson, taloudellinen demokratia ja sosiaalinen vallankumous, in Karapuu (ed.) 1970, supra n. 46 at 100–109. 185 Lars D. Eriksson, Aktiebolaget ─ en dödsdömd institution, Contra 1/1971, 16–20. 186 Antero Jyränki, Valta ja vallan siirto (Helsinki: Kirjayhtymä 1971), 9–23, 32–34, 39. 187 Mikael Hidén, Omaisuuden perustuslainsuoja ─ nykynäkymiä ja näkökohtia, LM 1971, 99–134. 188 Toivo Holopainen, Säänneltävän arvo ja perustuslainsäätämisjärjestys, LM 1970, 672–680.

285 notion of the 1960s and 1970s to argue for personal liberty and against property rights, and thus the perceptions on the matter differed fundamentally. The complex and not unambiguous view of the critical scholars on the problem of rights was seen in their endorsement of social rights. The critics argued that it was easier to intervene in the personal liberty of a person than on private property rights.189 However, they also encouraged more state activity in the protection and enforcement of social rights. The view of the early 1970s was still relatively strongly on the side of the welfare state and was optimist about the public potential to provide free services for the people, such as housing, education, and culture.190 This is why the critical legal scholars also argued that the rights of the poor were not effective, and that the general increase in wealth sometimes produced more misery. The state should thus be stronger in imple- menting the actual effectiveness of rights.191 In general, the radical thought was critical of the welfare state because it was seen as a guardian of the status quo and a re-producer of false consciousness. With respect to redistribution and social rights, however, the critical scholars often favored a strong state. They demanded more power for the parliament over the government and the president, and they also demanded more power for the public authorities to redistribute economic welfare, but not in intervening in the private life of the citizen. The state emphasis on economic matters and rights was part of the criticism of formalism. For instance, in an analysis of rights-consciousness in modern society, Blom argued that since formal rights were detached from their economic basis, they caused actual inequality. Law and rights reflected and protected economic relations and masked and legitimized the resultant inequality.192 People were becoming more interested in their rights as the welfare state improved and the debates on the Constitution continued. The Marxist perspective on rights encouraged study of their structural relations and the consequences. Once the rights consciousness had made its way to the center of legal thought, critical scholars began to place even heavier emphasis on them. Blom, for example, argued that to be effective, social rights and their enforcement should be strictly stipulated in the Constitution.193 Social rights often conflicted with private property rights,194 so the critical scholars argued that property rights should not be interpreted as a hindrance to the enforcement of social rights.195 The emergence of social rights as well as critical thought required a more flexible understanding of the concept of proper-

189 Jyränki 1968, supra n. 174 at 20. 190 Klaus Mäkelä (ed.), Ilmaiseksi (Helsinki: Tammi 1973). 191 Risto Laakkonen, Työntekijän oikeusturva, in Tala (ed.) 1969, supra n. 46 at 146–160; Heikki Kara- puu, Riiston turvaaminen ja työväestön perusoikeudet, in Karapuu (ed.) 1970, supra n. 46 at 82–89; Jeja- Pekka Roos, Hyvinvointi yhteiskuntapolitiikan tavoitteena, Oikeus 4/1973, 28–33; Raimo Blom, Kapita- lismi ja työväenluokan TSS-oikeudet, Oikeus 3/1975, 3–10. 192 Raimo Blom, Perusoikeustajunta ja perustuslaki, IV Oikeustiede ─ Jurisprudentia 83, 90–97, 167–169 (1973). 193 Raimo Blom, Perusoikeudet kapitalismissa, Oikeus 4/1977, 194, 199–201. 194 Paavo Reinikainen, Taloudellisista, sosiaalisista ja sivistyksellisistä perusoikeuksista, Oikeus 3/1978, 164. 195 Antero Jyränki, Omistaminen perusoikeutena, Oikeus 2/1978, 74–75.

286 ty which the critical scholars argued was an absolute concept. They wanted to see rights in a more social context. Changes occurred in constitutional scholarship at a more general level as well. In a text-book on constitutional law, published in 1972, Jyränki and his co-authors stressed the Marxist aspects of the Constitution and the alternative aspects of legal scholarship in the recent years.196 These changes followed the methodological turn in general, following the revision of Finnish history and its impact on the law in particular. As we saw, Jyränki endorsed methodological eclecticism and the focus on law in action. In a study concerning the Constitution and social change, he examined the history of particular constitutional occurrences, analyzing their impact on contemporary constitutional law. In brief, he argued that constitutional interpretation mostly reflected the needs of the economy, and that the protection of property was crucial in constitutional law. Follow- ing the American classic, Charles Beard, he concluded that the Finnish Constitution created a system in which no social class could ever control all of the state powers, and the system overall was thus stabilized.197 Historical examination of practical cases thus proved, according to Jyränki, the inevitable connection between law and economic power. This study was one of the first critical legal histories in Finland in the 1970s with its emphasis on the social and ideological aspects of constitutional interpretation. It reflected the elements of critical and alternative legal scholarship in various ways, and was therefore a considerable deviation from the traditional scholarship. The critical interpretation of history also highlighted the controversies in legal thought. The older and more traditional constitutional scholar, though not extremely so, Paavo Kastari198 criticized Jyränki for over emphasizing the class conflict and therefore making subjective interpretations which the sources did not support.199 From the critical perspective, the history of law involved the struggle between the social classes. Thus it was important for the critical scholar to understand law in its historical and social context, which brought new dimensions to the analysis but also caused problems of interpretation and argumentation. As was the case in Scandinavian Marxist legal scholarship, the more traditional scholars criticized the Marxist analysis for distorting the sources. The critical perspective on history was nonetheless a fundamental characteristic of critical scholarship, marking the difference between the critical and traditional scholars. Besides being an important aspect in the critical legal scholarship on constitutional law, the revision of history was an essential aspect of the more general transformation of scholarship in the 1970s. From a critical perspective, the revision of history was

196 Antero Jyränki, Juhani Perttunen, Eero Vilkkonen, Valta, valtio ja kansalainen (Helsinki: Tammi 1972). 197 Antero Jyränki, Perustuslaki ja yhteiskunnan muutos: Tutkimus varallisuusoikeuksien ja taloudellisen toiminnan vapauden kehittymisestä perustuslain tulkinnan avulla v. 1863─1919 (Helsinki: Tammi 1973), esp. at 12–14, 86–88, 104–106, 133–136, 221–226. 198 Paavo Kastari was a traditional scholar, but as we saw, he also endorsed a sociological approach to constitutional law. In the 1940s his studies reflected a non-traditional, sociological jurisprudence which was rare in Finnish legal scholarship in those days. 199 Paavo Kastari, Perustuslaki ja yhteiskunnan muutos [book review], LM 1974, 292–294, 296.

287 needed because those historical events which were considered as a menace to the contemporary society were often regarded negatively.200 For the critical scholars, the historical dimension helped to understand law instead of taking it at face-value.201 This also raised the problems of the civil war. Nieminen, for instance, noted that the revolutionary constitution of 1918 was not as socialist as was commonly assumed, but rather a truly democratic one.202 The point was to show that the Finnish communists were not the same as the Soviet communists. In addition, Jyränki demonstrated that the drafting of the Constitution in 1917–1919 was a break with legality and tradition, and that the interpretation of the Constitution had changed in the course of time.203 Jyränki obviously argued that the common faith in legalism and continuity in Finnish constitutional law was rather a myth with only a faint correspondence to reality. This notion enabled a contribution to the reform of the Constitution that was going on at the time and gave impetus to a more thorough reform. Because of the emphasis on the connection between scholarship and politics, alternative and critical legal scholarship bore a close connection to relevant contemporary topics. The emphasis on history and class conflict reflected the general politicization of scholarship in the 1970s.204 Research often took a stand on controversial political questions. Jyränki thus argued that the Finnish Constitution was a semi-presidential system in which the powers of the parliament were restricted,205 and that the powers of the President had increased in practice.206 The purpose was obviously to articulate the strong position of the president in relation to the parliament. Since the political left considered the strong presidential powers as a hindrance to reform, scholarship focused on analyzing the evolution and the meaning of these powers. Non-traditional scholarship was politically oriented, as evident in the choice of methods and subjects as well as in the use of the findings. History and reality also related to Marxist theory which stressed the relationship between law and the state. Eriksson noted that the Constitution was not simply a tool of the power of the ruling class, but a mediator between conflicting social interests. Scien- tific determination of its exact meaning was impossible since interpretations varied according to the perspective.207 Therefore, constitutional concepts had to be analyzed in particular contexts.208 A central tenet of the critical thought was that there were no ob-

200 Leena Mäntynen, Käsityksiä valtiosta ja valtiosäännöstä, Oikeus 3/1976, 121–126. 201 Rontu 1973, supra n. 130 at 21; Tolonen 1973, supra n. 128 at 12–15. 202 Ari Nieminen, Punaisen Suomen “punainen” perustuslaki, Oikeus 1/1974, 3–14. The legislative documents of the national delegation of the revolutionary party from 1918 were published in Oikeus 2/1978, 112–131. 203 Antero Jyränki, Kontinuiteetti, legaliteetti, stabiliteetti: Suomalaisen perustuslakikäsityksen ääriviivo- ja, V Oikeustiede ─ Jurisprudentia 5, 22–24, 29–33, 38–40, 43–44 (1974). 204 Jussi Raumolin, Valtiosääntöuudistus, puolueet ja politiikan tutkimus, Politiikka 2/1974, 126–141. 205 Antero Jyränki, Vallanjako vai eduskunnan valta? Suomalaisen presidialismin juuria v. 1906─1919, IX Oikeustiede ─ Jurisprudentia 75–119 (1977). 206 Antero Jyränki, Presidentti: Tutkimus valtionpäämiehen asemasta Suomessa v. 1919─1976 (Helsinki: Suomalainen lakimiesyhdistys 1978), 83–89, 96–97. 207 Lars D. Eriksson, Legalstrategins möjligheter, Oikeus 2/1975, 3, 7. 208 Lars D. Eriksson, För ett dynamiskt legitimitetsbegrepp, TfR 1975, 145–157.

288 jective interpretations, and the social context and the values of the interpreter affected them. Since the Constitution was a significant legal institution, performing a fundamental role in society, the critical scholars emphasized the importance of seeing it in a social context instead of simply as a normative institution. Criticism of constitutional law and critical legal scholarship progressed hand in hand in this regard, influencing and being influenced by each other. It is no surprise that the Marxist theory of the state also emerged in Finnish scholarship in the late 1970s. According to the critical scholars, the law and the state were in an organic relationship, and there could be no law without the state and no state without the law.209 The emergence of the state followed the emergence of the economy, and the economically powerful class controlled the state as a way to protect and reproduce the relations of power. Law was a product of the state and it made social relations appear abstract and formal in order to mask the reality.210 In modern society, however, the political reality had to delimit democracy in order to maintain the capitalist mode of production.211 Therefore, the state mystified the democratic process by presenting the parliament as the most significant power and by reducing democracy to voting in order to make the people accept the situation.212 Critical scholarship sought to reveal that the apparently democratic institutions of the state were empty in practice, thus minimizing the power of the people and maximizing the power of capital. Marxist rhetoric and analysis were used to disclose what was called the ideological function of law, and hence to provide data for legal change. The fundamental nature of the analysis reflects the radicalism of the critical scholarship, and the use of the Marxist theory reflects the evolution of the critical scholarship as well as the importance of leftist rhetoric to it. Even before the Marxist turn of the 1970s, critical scholars were interested in how the law contributed to social failings. A central theme in this regard was the criticism of the process of legislation. The critics argued that the power to legislate had moved from the parliament to various committees to a large extent, which was harmful for social development because the committees paid attention rather to technicalities than social issues,213 were often closed and thus excluded open discussion,214 and relied on the expertise of traditional legal scholars whose conservatism thus influenced the law greatly.215 The President of Finland confirmed these arguments in the notorious interview in 1970, in which he also endorsed a socially and politically more diversified composition

209 Olli Mäenpää, Staten och rätten, Retfærd 7/1978, 59. 210 Raimo Blom, Valtio, oikeus ja yhteiskunta: Luentoja materialistisesta valtioteoriasta (Tampere: Tam- pereen yliopisto 1976), 133–140. 211 Kaarlo Tuori, Om inskränkningen av demokratin, Retfæd 4/1977, 27–53. 212 Raimo Blom, Perustuslaki ja kapitalismin kehitys (Helsinki: Tutkijaliiton julkaisusarja 1978), 58–59. 213 Olavi Heinonen, Kenellä on lainvalmisteluvalta Suomessa? 47–50, in Karapuu (ed.) 1970, supra n. 46 at 47–58; Risto Jaakkola, Esimerkki lainvalmistelusta, 59–60, in Karapuu (ed.) 1970, supra n. 46 at 59– 65. 214 Jacob Söderman, Laiha keskustelu köyhän oikeusturvasta, Sosiologia 6/1970, 322–324. 215 Eero Backman, Milloin lakia pitäisi muuttaa? Contra 1/1970, 14–19; Esko Riepula, Juridisesta asiantuntijavallasta yhteiskunnallisessa päätöksenteossa, Contra 3/1970, 6–10.

289 of the committees as well as more sociological expertise in them.216 Backman also argued that whenever a problem was to be regulated, it had to be thoroughly analyzed in open discussion on the potential goals and the means to achieve them.217 The question of legislation was also one of social and academic power. For the critical legal scholars, the major problems regarding legislation were that its drafting was undemocratic and mostly controlled by conservative legal scholars who did not understand society. Their response was that legislation and its drafting were to be open, and legal scholars should have more understanding of society. Since their scholarship was based on social, political, and behavioral sciences, alternative and critical legal scholars considered themselves as lawyers for the society, having a better understanding of the social functions of law than the traditional profession. Relating to the process of legislation was the problem of its constitutionality. Crit- ical scholars were skeptical about judicial review and the constitutional court because they thought that the courts were a very conservative social institution.218 Some traditional scholars, on the other hand, favored an establishment of a constitutional court because of its potential to protect rights.219 This was also the opinion of the political right, which considered such a court necessary because of the rise of Marxism and the repressive use of the law by the radical left.220 An important factor in the conflict was that for the traditional view, the control of the constitutionality of legislation was a legal, not a political issue, whereas for the critical view it was precisely a political issue. For instance, Riepula argued that control of the constitutionality of law could not be made apolitical by delegating it to the courts, and it should be opened up to a more diversified discussion.221 Since the process of legislation was a question of social power, it should not be masked behind the mist of legal rhetoric.222 When the law was considered as politics, as the critical scholars did, there was nothing apolitical about law. Part of the criticism might have been sheer trashing of the traditional symbols and values, but some of it related to genuine concern for the possibility of reform and enforcement of equal rights. Critical scholarship thus involved several aspects of society, politics, and scholarship. The criticism of the inability of the legal system to enforce the rights of the citizen was also apparent in the criticism of the Chancellor of Justice. An entire issue of Oikeus was dedicated to this problem. The critics argued that the Chancellor was guided by his political biases and that he had neglected his duties towards the citizen while focusing on matters of legislation.223 Eriksson related the problem to the blind faith in legalism in

216 Kekkonen 1970, supra n. 72 at vii–xi. 217 Backman 1970, supra n. 215 at 19. 218 Lars D. Eriksson, Luokkayhteiskunnan tuomioistuimet, 36–37, in Tala (ed.) 1969, supra n. 46 at 18– 42; Riepula 1973, supra n. 120 at 350–359. 219 Veli Merikoski, Valtiosääntötuomioistuimen tarpeellisuus, LM 1973, 91–105. 220 Oikeus kysyy ─ työnantajat vastaavat, Oikeus 1/1975, 50. 221 Riepula 1973, supra n. 120 at 353. 222 Esko Riepula, Säädösvalvonta Suomessa [book review], LM 1974, 635. 223 Tuula Autio & Tarja Hyvönen, Oikeuskansleri ja työsuojelu, Oikeus 4/1976, 194–198; Antero Jyränki, Oikeuskanslerin harjoittama ennakkovalvonta tasavallan presidentin ja valtioneuvoston päätöksenteossa,

290

Finnish legal thought, arguing that legal problems were traditionally understood in formalist way, which blurred the realities behind them and caused inequalities and problems.224 The trashing of authority and the radical critique of traditional institutions were evident in every aspect of critical legal scholarship. By the mid-1970s, critical and alternative scholars had formed a strong front which attacked every aspect of the law. Criticism of constitutional law reflected various aspects of social radicalism and critical legal scholarship. The polarization of the Finnish society of the early 1970s between the working class and the bourgeoisie was clear in the critical rhetoric. The critical scholars perceived the Constitution as part of a historical and social totality, origi- nating and functioning in a context with specific purposes. Because their point of view was typically a Marxist and a leftist one, they argued that the Constitution was part of the legal myth which created a capitalist society and protected and reproduced its institutions. Their scholarship advocated the methods of history and social science in order to produce data for reform. In this regard, theory and practice were close to each other. In order to illuminate this relationship, we shall now take a brief look at the reform of the Constitution of Finland in the 1970s. The Constitution was debated in the 1960s, and there was a general agreement on the need for reform, which was initiated in 1970. The reform committee published its first interim report in 1974. It was unanimous about increasing democracy and improving the rights of the citizen, but disagreement arose as to the extent of increasing the powers of the parliament and the scope of these rights. The radical side, represented by Jyränki, who was the vice-chairman of the committee, was willing to concentrate more power in the parliament, whereas the more moderate side wanted to maintain a balance between the state branches and proceed with the reform cautiously.225 I shall not discuss the reform in detail but provide some examples related to the critical constitutional scholarship. We have seen that the critical legal scholars argued that the Constitution was based on the interests of capitalist society and was conservative. They therefore endorsed a total reform of the system. The radicals had their own proposal for the Finnish Constitu- tion, which would have turned Finland into a soviet republic in which all the power would belong to the people, and where the courts would be subjected to democratic control.226 This radical proposal was meant to provide a framework for a more democratic society and would have altered the whole basis of constitutional law. It was obviously

Oikeus 4/1976, 179–189; Hannu Tapani Klami, Oikeuskansleri ja laki, Oikeus 4/1976, 190–193; P.O. Träskman, Landets högste åklagare, Oikeus 4/1976, 199–206. 224 Lars D. Eriksson, Justitiekansler ─ legalitetens väktare? Oikeus 4/1976, 170–178. 225 Valtiosääntökomitean välimietintö 1974:27, 9–22, 24–32, 50–56, 66–72; Suomen valtiosäännön uudistaminen 1974: Tausta, tavoitteet ja mahdollisuudet (Tampere: Tampereen yliopisto ─ Oikeustieteen laitos B-raportteja 1/1974), 49–55, 86–87. Jyränki has also described and analyzed the work of the committee. (Antero Jyränki, Perustuslakiuudistus (Helsinki: Tammi 1974).) The perspective of the book is, however, radical. 226 Lars D. Eriksson & Heikki Karapuu, Luonnos uudeksi perustuslaiksi, in Karapuu (ed.) 1970, supra n. 46 at 116–120; Klaus Mäkelä, Kaikki valta neuvostoille, in Karapuu (ed.) 1970, supra n. 46 at 110–115.

291 meant to provoke discussion, but its substance was illustrative of the critical thinking. In any event, the radical agenda was real and it did have lots of significance in practice. The radical notions were also the basis of the radical wing of the committee, which adopted the view that the since Constitution was drafted on the basis of class conflict, it protected the interests of the bourgeoisie and stabilized the prevailing social order.227 The greatest controversy over the reform followed from this notion. The radicals proposed a flexible, social concept of private property, endorsing an amendment that would have made expropriation for public purposes easier. They sought to enable the realloca- tion of large portions of the economic structure and big corporations to social control if it was considered appropriate in improving social inequalities that the economic relations caused, the ultimate goal being in the establishment of the prerequisites for a planned economy.228 These proposals were extreme, but they have to be understood in the context of the 1970s. As political matters they were radical indeed, but they suited the political rhetoric and conflict of the time and were not exceptional by the standards of the time. The critical legal scholars endorsed a new, more social and less formal concept of property, a concept which correlated with the goals of the radical left. Critical legal scholarship reflected the radical social thought, but it also contributed to it by making it clearer and providing it with more practical utility. In connection with the reform, the critical scholars could demonstrate the ideological restrictions of legal practice. After the report was published, critical legal scholars argued that the information on it was inadequate and that the political right had tried to undermine the proposals of the left.229 Eriksson noted that the practice of the moderate reformers was contrary to the fundamental principle of the reform, which was to improve the sovereignty of the people.230 The politics and rhetoric were closely linked, the central point being that there were noble concepts which were not acted upon in reality. This was an effort to demonstrate the influence of ideology on the discourse over the Constitution, and it also reflected the critical perspective on law, which emphasized its actual functioning in the social reality. The way the critical scholars mixed political and scholarly rhetoric and how this was incomprehensible to the traditional scholarship was also obvious. The defenders of the moderate reform argued that the problem concerned such fundamental issues that there was no reason to hurry.231 The radicals were also criticized for their proposals. A professor of constitutional law, Veli Merikoski argued that centralization of power to the parliament was harmful for democracy,232 and Mikael Hidén, a young but traditional

227 Valtiosääntökomitean välimietintö 1974:27, 17–19. 228 Valtiosääntökomitean välimietintö 1974:27, 113–123; Jyränki 1974, supra n. 225 at 88–90. (On the disagreement about the provisions on expropriation and the protection of private property, see Jyränki 1974, id. at 146–153.) 229 Esko Riepula, Huomioita valtiosääntökomitean työskentelystä, Politiikka 2/1974, 161–168. 230 Lars D. Eriksson, Den delade folksuveräniteten, Politiikka 2/1974, 115–123. 231 Presidentti Aarne Nuorvalan puhe valtiosääntökomitean mietinnön luovutustilaisuudessa, LM 1975, 399, 403. 232 Veli Merikoski, Vastuuperiaate valtiosääntöuudistuksessa, LM 1975, 409–414, 417–419.

292 legal scholar argued that the concept of property of the radicals was ideological and legally unsound.233 The critical scholars often criticized the traditional scholars for ignoring the ideological biases in law and not understanding its social context, and now they faced the same criticism. The traditional point was that property was to be approached from a purely legal perspective without paying attention to any ideological factors. Because of the differences in perspective, the traditional and critical legal scholars were in a continuous merry-go-round on the issue. The critical insight of the state institutions differed fundamentally from that of the traditional one, and since they perceived problems differently, they had difficulty in finding a common language. Thus the debates on the Constitution clearly reflect the radicalism of the critical thought and the huge gulf between the traditional and critical epistemology. Since the critical thought was all-encompassing, the critical scholars attacked a variety of the state institutions. The state administration was also one of the authorities to which Marxist analysis could be appropriately applied. In this respect, too, the critical scholars wanted to go beyond the apparent reality. Legal scholarship on administrative law followed the general trends of jurisprudence with a lag of a few years. In the 1970s, scholars of administrative law became interested in analytical jurisprudence and began to criticize the conceptual tradition.234 In this regard, however, the critical scholars attacked the thoroughgoing effects of the structure of the state, not analytical jurisprudence. A general argument was that the powers of the parliament were reduced in favor of the executive,235 which was harmful to democracy,236 and an effort of the capitalist state to maintain its legitimacy.237 The aim was once again to go beyond the meaning of concepts and to examine the reasons and purposes of the law in action. In the pursuit of the real essence of the executive branch, a theory was needed, and for the critical scholars it was Marxist theory that was the most appropriate. Marxist theory on administrative law followed the familiar patterns of critical legal scholarship. A significant person in this regard was Kaarlo Tuori, a young, promising scholar of administrative law in the mid-1970s. He was also interested in Marxism and critical legal scholarship, on the basis of which he developed a critical theory of the administration of the state. According to him, administration mediated the politics of the state which emanated from the class conflict and society. It was therefore important to understand the dialectical development of both the form and substance of law in the regard in its historical, social, and political context. One could then understand the character of the authority of the state as a class power and the law as a legitimizing and mys-

233 Mikael Hidén, Näkökohtia omaisuudensuojasäännöstöstä uudistuskaavailujen kohteena, LM 1975, 440–441, 448–457. 234 Heikki Kulla, Valtio-oikeudellisen positivismin synty ja vallanjako, Oikeus 2/1975, 27. See also Matti Nieminen, Den senare analytiska rättsteorin och den förvaltningsrättsliga forskningen i Finland, JFT 1976, 266–279. 235 Olli Mäenpää, Eduskunnan HM 28 ja 65.1 §:ään perustuva organisaatiovalta, VIII Oikeustiede ─ Ju- risprudentia 37, 42–43, 61, 75–76 (1976). 236 Tuori 1977, supra n. 211. 237 Blom 1976, supra n. 210 at 281–282.

293 tifying institution.238 Critical self-reflection on theory was also required, since scholarship on administrative law also legitimized and reproduced the system.239 The debates on the constitution faded in the latter half of the 1970s.240 By 1977, the total reform of the constitution was at a temporary standstill, and the focus moved towards reform of the protection of the rights of the citizen.241 While the criticism of the Constitution was fading in the mid-1970s, and while critical legal scholarship in general was becoming theoretically more sophisticated, critical legal scholars began to analyze more particular aspects of law. Nevertheless, as long as the critical debates on both the Constitution and constitutional scholarship were intense, critical scholars propounded the same arguments in these respects. For example, Jyränki, one of the most prominent proponents of critical legal scholarship and who also sat on the reform committee, promoted the same arguments in both his scholarship and his political activity. Scholarship was indeed politicized in the 1970s. For the critical scholars, there were not simply legal rules, principles, and doctrine to analyze, but they all related to the complex totality of the society which had to be taken into account. Another example that illuminates this aspect was the criticism of the judiciary which is the topic of the next section.

3.2 Criticism of the judiciary

Courts are the organs that apply law and transform law in books into law in action. It is therefore no surprise that the critical legal scholarship also concerned itself with the judiciary and its position in the legal system. Legal protection and the administration of justice were also under serious scrutiny in the 1960s and 1970s, and the judiciary was also subjected to reform. The criticism of the judiciary was another aspect which points out the connection between critical legal scholarship in theory and in practice, as well as the difference in the perception of law between the critical and traditional scholars. The radical criticism of the courts began in the 1960s. Ensio Hiitonen had already pointed out in his study in the 1950s that the courts had adjudicated political cases and followed the hegemony of the political right in their decisions.242 In 1965, Kaarle Mak- konen had argued that adjudication was often irrational.243 The criticism of the courts

238 Kaarlo Tuori, Hallintokoneiston ja hallinto-oikeuden kehityksestä, Oikeus 2/1975, 29–43; Kaarlo Tuori, Om förvaltningsapparatens och förvaltningsrättens utveckling, HfKS 1976, 24–40. 239 Kaarlo Tuori, Hallinto-oikeustieteen tutkimuskohteesta, Oikeus 1/1976, 3–16. 240 See Max Oker-Blom (ed.), Millaiseksi perustuslaki? (Helsinki: Kirjayhtymä 1976). 241 Lars D. Eriksson, Författningsdebattens nuläge, Oikeus 3/1977, 167; Antero Jyränki, perusoikeusuudistuksen tavoitteet, Oikeus 4/1977, 191–192. The reform was finally completed in 2000 when the new Constitution came into effect. The powers of the parliament were strengthened whereas the powers of the President were restricted, protection of the rights of the citizen was also improved, and the protection of private property remained strong. The reform was thus a moderate compromise between contradictory opinions. 242 Ensio Hiitonen, Vääryyttä oikeuden valekaavussa (Hyvinkää: Vapaa Pohjola 1953). 243 Makkonen 1965, supra n. 30.

294 was intensified by the controversial suits in the 1960s, the most famous being the case against the author Hannu Salama for blasphemy,244 and the case against Erik Schüller in the late 1960s for inciting conscientious objection.245 Although the cases had their greatest influence on criminal law, they also contributed to the critical argument that the courts preserved the conservative social order. Thus, when the critique of legal reasoning and scholarship was already intense in the late 1960s, Eriksson argued that the independence of the judiciary was simply a myth. On the contrary, he wrote, courts were political organs using political power, and in a class society they protected the interests of the ruling class. The political nature of the courts had to be recognized and be placed under democratic control.246 Since the critical thought identified legal institutions with the social power structures in this respect as well, it was radical regarding both perception and its political implications. The beginning of the 1970s marked a dramatic turn. As we saw earlier, the studies by Blom revealed a serious lack of confidence in the courts,247 and, as on so many other occasions, the President gave a further impetus to the clamor over the judiciary. In his birthday interview, he pronounced that since the courts often made political decisions, there was a need to reconsider the concept of the separation of state powers.248 Although the need to reform the judiciary was recognized,249 President Kekkonen’s comment was the one the legal profession was most hostile about. The President was criticized for endorsing ideological elements and exaggerating the political power of the courts.250 The critical scholars, on the other hand, chided the criticism as political, saying that the question was about increasing democracy.251 The politicization of the courts, nevertheless, became a major legal problem of the 1970s.252 The critical scholars promoted radical arguments with respect to the courts too, arguing that the judges should be elected either by a popular vote or by the parliament for fixed periods, all social classes should be fairly represented in the judiciary, and the parliament should regularly monitor judicial practice.253 The argument for subjecting the courts to democratic control was in a stark contradiction to the Finnish legal system, which was based on the independence of the judiciary. The idea behind the radical al-

244 Kekkonen 1998, supra n. 6 at 117. 245 See Ilpo Halonen & Matti Mykkänen (ed.), Tapaus Schüller (Helsinki: Tammi 1970). In February 11th 1969, Erik Schüller publicly encouraged those whose objection to military service was denied to continue their objection, and was charged with inciting conscientious objection, which was a crime back then. Later, nearly two thousand people signed a similar petition which was presented to the police. The trial of the objectors then turned into a farce. The signatories included Lars D. Eriksson and Kaarlo Tuori. 246 Eriksson 1969, supra n. 208 at 18–24, 40. 247 Blom 1970, supra n. 60. 248 Kekkonen 1970, supra n. 72 at xv–xviii, xx–xxi. 249 Martti Miettinen, Oikeudenhoitomme uudistusten toteuttamisesta, LM 1970, 1005–1010. 250 Kastari 1970, supra n. 78 at 996–1004; Vikatmaa 1970, supra n. 79 at 1016–1019; Paavo Rautkallio, Suomalainen poliisi ─ yksi meistä, LM 1970, 1023–1027. 251 Helge Rontu, Epäpoliittisuuden harhakuvat, Contra 1/1971, 21. 252 See, e.g., Oikeuslaitoksen politisoiminen: Mitä se on, miten se vaikuttaa ja mitkä ovat sen hyvät ja huonot puolet? (Porvoo: Werner Söderström osakeyhtiö 1972). 253 Eriksson 1969, supra n. at 218 at 40; Lars D. Eriksson, Tuomioistuinten poliittinen valta, 76–77, in Karapuu (ed.) 1970, supra n. 46 at 66–77; Blom 1970, supra n. 61 at 9–10.

295 teration in the basis of the judiciary was to create a kind of people’s court, however infamous the concept, and hence to bring the administration of justice closer to the people. The concept was obviously very radical, but it raised discussion about the judiciary, the legal system and democracy, and reflected the polemical atmosphere of the 1970s as well as the socialist rhetoric of the criticism. The administration of justice was also an aspect in which the critical scholars could invoke their arguments in practice. The reform of the judiciary was initiated in the early 1970s and its first report was published in 1971. The report was quite radical, pro- posing major changes which followed the radical arguments. The committee consisted of three members, Olavi Heinonen, Aulis Aarnio, and Henrik Grönqvist, all members of the Socialist Democratic Party. Heinonen (b. 1938) and Aarnio (b. 1937) were young legal scholars with leftist tendencies. Although Aarnio defended more traditional views in the debates on legal scholarship in the late 1960s, he was one of the interviewers of the President and endorsed progressive views on legal scholarship, despite not wanting to turn it into politics. Heinonen also sympathized with the alternative views and was active in criticizing criminal law, as will be seen later. Grönqvist was not active in the debates on legal scholarship. Critical legal scholarship perspectives were obvious in the report of the committee for the reform of the judiciary. Its assumption was that since the courts were part of the society and wielded considerable social power, they should reflect social change. Ac- cording to the committee, the courts should be impartial in individual cases but in general conform to the current social politics. It then proposed that the judges should serve for a fixed period and should be appointed on political terms to represent the political power relations.254 A critical perception of the courts was written into the report by reviewing their development in the historical and social context and then relating this process to the contemporary circumstances. The judiciary was reviewed in a general context, considering its social role and function, and little attention was given to technical issues and details. The report ignited a heated response defending the traditional judiciary,255 and the legal profession at large condemned the report. The conservative part of the profession wanted reforms too, but they wanted to maintain the structure of the judiciary. The majority of the lawyers and judges as well as traditional legal scholars thus criticized the report for its ideological statements without due veracity and for trashing the basis of Finnish democracy and the administration of justice.256 The committee attacked such

254 Oikeuslaitostoimikunnan mietintö 1971: B 112, 3–20, 30–31, 38–39, 68–70, 77. 255 The criticism of both the report and the radical criticism of the judiciary, as well as some of their de- fenses, are gathered in Erkki Havansi (ed.), Tuomioistuinuudistus ─ millainen? (Porvoo: Werner Söder- ström osakeyhtiö 1972). 256 Suomen Lakimiesliitto r.y:n lausunto, 18–19, 22–25, in Havansi (ed.) 1972, supra n. 255 at 18–31; Suomalainen Lakimiesyhdistys r.y:n lausunto, 34–43, in Havansi (ed.) 1972, id. at 32–51; Suomen Asi- anajajaliiton lausunto, 79–85, in Havansi (ed.) 1972, id. at 76–89; Suomen Tuomarien Liitto r.y:n lausun- to, 92–98, in Havansi (ed.) 1972, id. at 252 at 90–98; Erkki Havansi, Oikeuslaitostoimikunnan mietinnön kritiikkiä, LM 1972, 1–35; Veli Merikoski, Oikeuslaitosuudistus, näkökohtia, LM 1972, 435–446. Arti-

296 fundamental aspects of the Finnish legal system that its arguments were not acceptable to the traditional profession to any degree. Criticism of legal scholarship on the pages of law journals was often mostly ignored or scorned. When the criticism appeared in the official report of a reform committee however, a widespread and hostile response followed, which illuminates the general opinion of the legal profession about the critical legal scholarship. The profession at large was mostly conservative with respect to the fundamental elements of the legal system, and considered the critical scholars as being too radical. The general rebuttal of the report only meant more fuel on the flames of the critical scholars. Aarnio, who was a member of the committee, criticized the critics of the report for their conservative notions.257 Aarnio was most likely upset because of the harsh criticism the committee had received. Otherwise the critical scholars often turned the questions of law into questions of politics, because their general perspective on the legal problems was political. In this vein, Niklas Bruun argued that the book in which the criticism of the report was published was a bourgeois response intended to halt the reform.258 The elements of ideology and politics were always crucial to the critical legal discourse. It sought to demonstrate the conservative nature of traditional scholarship and it reflected the fundamental difference in perception between traditional and critical approach. The difference in perspective between traditional and critical scholars was pervasive. The critical perspective saw politics everywhere because there were structural relations between class conflict, the state, law, the courts, and the legal profession. Thus, the critical scholars argued, there was no impartial justice since it was always biased. The traditional view disagreed and had faith in the impartiality of justice. For instance, the professor of constitutional law, Paavo Kastari, noted that Finnish courts did not make political decisions and that judicial discretion was restricted. The courts in socialist countries on the other hand, he argued, did not provide very desirable examples.259 The traditionalists therefore wanted to preserve the fundamental structure of the courts.260 The question of the political nature of the courts, however, appeared completely different in a non-traditional perspective. To the critical scholars, since the courts were part of the social structures, they were always preconditioned by them and reproduced the inequalities within them.261 Judicial decision-making required social knowledge,

cles by Havansi and Merikoski are also included in Havansi (ed.) 1972, supra n. 255 at 105–135, 136– 146. 257 Aulis Aarnio, Oikeuslaitostoimikunnan “historialliset erehdykset”, DL 1972, 246. 258 Niklas Bruun, Tuomioistuinuudistus ─ millainen? [book review], JFT 1973,74–75. 259 Kastari 1971, supra n. 126 at 422–436. 260 See, e.g., Paavo Salervo, Tuomioistuimet valtiokoneistossa, in Oker-Blom (ed.) 1976, supra n. 240 at 145–173. 261 Raimo Blom, Tuomioistuimien oikeudenkäytön ─ erityisesti rikostuomioiden tasapuolisuuden ─ tutkimus: Tutkimussuuntausten sekundaarianalyysi (Tampere: Tampereen yliopiston sosiologian ja sosiaalipsykologian laitosten tutkimuksia 1973), 1–3, 9–10, 32–34, 74, 103–105.

297 unawareness of which meant conservatism.262 Indeed, the independence of the judiciary was a myth for the critical scholars. According to Backman, the courts were not and could not have been apolitical. Therefore there could only be discussion about disclos- ing their already political nature and hence being open about it and change it, not simply about the politicization of the courts.263 The dialogue between the traditional and the critical scholars was difficult because their perceptions differed. Whereas the former opined that judicial decision-making should not be politicized and values should not have any place in legal scholarship, the latter argued that since politics and values were already present in them, the question was completely different. Despite the sharp controversies that marked the early 1970s, the debates on the judiciary also faded as the decade approached its end. The radical notions about democra- tizing and politicizing the administration of justice faded, and even though the efforts to change the courts continued, the arguments became more moderate. The question was brought up in the reform of the Constitution, but the committee wanted to preserve the independence of the courts.264 Kivivuori had argued that the judicial process could be democratized through increasing the role of the lay members of the courts in 1974,265 and by the end of the decade even Heinonen wrote that broadening the social basis of the recruitment of the judges as well as educating them more about society might be appropriate in the effort.266 The courts were an obvious target of criticism because of their central position in the administration of justice. In the radical atmosphere, the courts were regarded as conservative bastions that guarded and maintained the prevailing social structures. The connection between criticism of legal reasoning and the judiciary was also obvious. The critical scholars argued that legal reasoning was ideological and politically biased, and the courts were the organs which turned law in books into law in action. Here again the radical scholars attacked the roots of the problem and called for a complete change in the administration of justice. Their criticism was not merely theory, since they were able to put their critical acclaims forward at the committee for judicial reform. And as was the case with the reform of the Constitution, the first report was greeted with hostility and the debates waned as the 1970s went on.

262 Klami 1973, supra n. 126 at 1–5, 22–25, 74–75. 263 Eero Backman in Oikeuslaitoksen politisoiminen, 1972, supra n. 252 at 86, n. 2. 264 Jyränki 1974, supra n. 225 at 71–76. The committee was unanimous as to the independence of the courts and the judge’s right to stay in office. Disagreement arose as to whether the parliament should appoint the judges and have the right to supervise the general trends of the courts. The reformers were in a minority, but their proposals would not have changed the basis of the judiciary radically. 265 Antti Kivivuori, Tuomioistuimet ja kansanvalta, Oikeus 3/1974, 43–46. 266 Olavi Heinonen, Tavoitteena hyvä tuomari vai hyvä tuomioistuin, Oikeus 1/1979, 37–40.

298

3.3 Concluding remarks

The criticism of constitutional law reflected many aspects of the critical legal scholarship and marked a relationship between legal theory and political practice. Finnish critical legal scholars were most actively involved in politics and legal reform of the countries examined here. They were members of reform committees and political parties and worked for the practical realization of their notions. Criticism of the Constitution and the judiciary was radical, and the radical proposals found their way into the official reports on reform. However, despite the efforts, the reforms never occurred as the radicals envisioned, because reforms are always compromises between conflicting points of view, and individuals cannot force their proposals through. In any event, the critical legal scholars created a link between theory and practice, despite whether their actions were deadly serious or acts of provocation. The fundamental nature of the critical thought became obvious in this respect. For critical legal scholars, the Constitution of Finland was based on false premises, establishing and preserving a capitalist society, but it could have been something else just as well. Their examinations of the historical origins of the Constitution and its actual effects in contemporary society sought to demonstrate the inequalities it caused and maintained. The criticism of the judiciary reflected the same arguments. The radical aspect of the criticism has been brought up here because it was not simply a few laws that were criticized but rather the system on which the Constitution and every individual law was based. The relationship between society and critical legal scholarship was also clear. Alt- hough we should not take everything that was written at face value, it is obvious that the criticism reflected the radicalism of the 1960s and the militant leftism of the 1970s, and since there were scholars who criticized both jurisprudence and constitutional matters, we can conclude that the critical legal scholarship in general reflected the radical thinking. To an extent, without depreciating the importance of theory, critical legal scholarship was an expression of the leftist counter-culture that criticized the traditional system of social norms, values, and life-style as well as the economic system. The criticism of constitutional law was much more radical and fundamental in Fin- land than in the United States and Scandinavia. Although the American and Scandinavi- an critical scholars advanced similar arguments in their general criticism of law, they did not grasp the whole idea of the Constitution in the way the Finnish scholars did. Furthermore, they were not as detailed and concrete in their criticism of the judiciary. Although the same arguments appeared in the criticism of judicial decision-making in the United States and Scandinavia, the Finnish scholars were the most explicit and radical in their critique of the courts and the urge to reform them. Constitutional law and the judiciary also highlight the very political nature of the critical legal scholarship in Fin- land. The scholars used openly political, Marxist, and socialist rhetoric in their criticism, and on some occasions even tried to realize them in practice. Because of the social

299 polarization, the legacy of the civil war, and the conservative nature of the legal profession, Finnish critical legal scholars made a radical break from the tradition and attacked the very foundations of the legal system. Criticism of constitutional law went hand in hand with critical legal scholarship. It began in the latter half of the 1960s and reached its climax at the turn of the decade, and the interview with the President gave an additional boost to the debates. Critical scholars attacked the Constitution, constitutional scholarship and the judiciary, which were seen as ideological and conservative. The critical scholars opined that the Constitution was based on social values which traditional scholarship neglected and therefore protected. Thus, a reconsideration of the system was needed. Besides illuminating several aspects of the critical legal scholarship, the criticism of constitutional law also reflected several important aspects of critical and alternative scholarship. Some of the particular topics will be examined in the following sections.

4 Alternative criminal law scholarship, 1965─1979

Scholarship on criminal law and criminology in particular were important elements in the development of the alternative legal scholarship in the 1960s. They also formed a gateway through which sociological jurisprudence could enter legal scholarship as well as a clear connection between Finnish and Scandinavian legal scholarship. Research on crime was in close contact with society and had a productive perspective on law in action. It proved to be an excellent field for alternative and critical scholars to argue that law discriminated against people of the lower social class and preserved the existing social structure. Furthermore, crime and its control in particular were hotly debated social concerns. Crime thus provided relevant issues where alternative methods were especially important. Although critical criminology was a major factor in the transformation of Finnish legal scholarship in the 1960s and 1970s and shared many aspects with critical legal scholarship, it is important to note that the alternative criminologists of these decades represented the alternative front that preceded and surrounded the critical enterprise, rather than critical legal scholars. Criminology had made its way into Scandinavian legal scholarship during the twentieth century, establishing a secure position in the 1960s.267 In Finland, too, the tradition of criminology was weak before the 1950s when scholars began to reorient criminological research to modern society. During the first part of the 1960s, Finnish scholars followed the example of their Scandinavian colleagues and became interested in criminology. The rising interest was seen in establishment of the Criminological Re-

267 See chapter IV section 4 above. The roots of Scandinavian criminology, of course, go beyond the 1960s, but only then did it become an established discipline.

300 search Institute in 1963.268 By the mid-decade, criminological research was about to become one of the liveliest forms of legal literature in Finland. The rise of criminology in the 1960s had considerable effects on the conception of crime as a social phenomenon and on the methods of researching it, as well as on criminal policy. However, alternative criminology was also a consequence of the changes in politics and social discourse on the rights and legal security of the citizen. Criminology encouraged discussions on reforming criminal policy, but social activism also encouraged more research on the social causes of crime and criminal policy. In any event, critical criminology supported the ideas of alternative legal scholarship, as well as the reconsideration of the causes of crime and the premises of criminal policy. Critical criminology concerned various aspects of crime and its control and provided alternatives for policy change. Studies on self-reported crime sought to reveal the criminality that was not reported in official statistics. The purpose was to point out that people were not neatly divided into criminals and law-abiding citizens, but that delinquency was more common than usually assumed.269 Studies on detention institutions also sought to demonstrate that incarceration was not especially effective in controlling crime and recidivism. Inkeri Anttila (1916–2013), an important figure in the Finnish criminology, investigated juvenile detention centers,270 and the sociologist Paavo Uu- sitalo concluded that prisons were not especially effective from the perspective of general deterrence.271 The implications of these arguments were that criminals were to be treated humanely and that harsh penalties did not have the deterrent effect they were assumed to have. The need to reform the administration of criminal justice and criminal policy was a hotly debated topic to which the recent research and the interest in Swedish reforms gave impetus. In the mid-1960s, the rights of the accused, particularly concerning pretrial investigation, were debated.272 According to the traditional view, this was an aspect of “Americanization”. There was rather a need for “common sense in dealing with criminals” and the police should not be demonized in their work against crime.273 The conservative response then stimulated the debate on the improvement of the rights of the accused. The majority of the profession recognized the need to improve the rights, but the measures to take were open to question.274 The majority of the legal profession was

268 Kangas (ed.) 1998, supra n. 20 at 338–339. The Criminological Research Institute was transformed into the National Research Institute of Legal Policy in 1974. 269 Inkeri Anttila, Piilorikollisuus ja ilmirikollisuus, LM 1966, 412–421; Inkeri Anttila & Risto Jaakkola, Piiloon jäävä rikollisuus (Helsinki: Kansalaiskasvatuksen keskus, Monistesarja 12/1966). In general on the studies on self-reported crime and their influence on criminology and criminal policy in the Nordic Countries, see Janne Kivivuori, Discovery of Hidden Crime: Self-Report Delinquency Surveys in Crimi- nal Policy Context (Oxford: Oxford University Press 2011), 126–150. 270 Inkeri Anttila, Tarvitaanko nuorille rikoksentekijöille uusia laitosmuotoja? LM 1965, 678–687. 271 Paavo Uusitalo, Vankila ja työsiirtola rangaistuksena (Helsinki: KK:n kirjapaino 1968), 140–150. 272 Valto Riekkinen, Syytetty ja hänen asemansa, LM 1964, 1077–1082; Timo Tuominen, Näkökohtia syytetyn oikeusturvasta, LM 1965, 456–466, 273 Allan Viranko, Tervettä järkeä rikollisten käsittelyyn, LM 1965, 628–629. 274 Matti Ylöstalo, Lisänäkökohtia syytetyn oikeusturvasta, LM 1965, 831–834; Matti Ylöstalo, Tervettä järkeä rikollisten käsittelyyn? LM 1965, 919–920; Matti Olavi Norri, Syytetyn asemasta ja puolustukses-

301 aware of the need to improve the status of the accused during the criminal process, but there was no general willingness to make the system more lenient or provide the accused with the opportunity to forestall the investigation. The radical social thought, however, turned heavily against the contemporary system in the latter half of the 1960s, when criticism of institutionalization and treatment ideology became severe.275 Whereas the legal professionals were talking about procedural rights, critical social opinion was turning against the system. Thus, the basis and direction of criminal policy turned out to be one of the most important topics of the period. Alternative criminologists of the late 1960s criticized treatment ideology and harsh penalties.276 Anttila argued that instead of having a very punitive criminal system, it would be more efficient to make people aware of the criminal norms.277 The most traditional scholars, such as Bruno Salmiala, were against the reform efforts because of their possible harmful effects on society.278 Alternative scholars, however, argued that criminalization and harsh punishments were major problems of Finnish criminal policy. The basis of the reforms should therefore be in the conception of crime as a social phenomenon, emanating mostly from the social structures.279 The sociologist Patrik Törnudd depicted the spirit of alternative criminology well in explaining that traditional criminology could not explain the causes of crime. The interpretation of social phenomena, such as crime, was dependent on values and policies which thus had to be included in criminological research.280 He also defined the purpose of the alternative criminal policy, which, he declared, should aim at minimizing the costs and damage caused by criminality and allocate them in a just and equitable fashion in society.281 The juxtaposition between traditional and alternative views greatly concerned the theoretical as well as political orientations, the difference between the perspectives being all-encompassing. At the beginning of the 1970s, comprehensive criticism of the criminal policy was widespread,282 and various problems were tackled in criminological studies. Scholars reconsidered the conception of criminal guilt,283 examined the development and status

ta, LM 1965, 1026–1028; Paavo Soukka, Oikeudenkäynnin julkisuus Englannissa ja Suomessa, LM 1966, 39–59. 275 See Eriksson (ed.) 1967, supra n. 45. 276 Inkeri Anttila, Konservativ och radikal kriminologi i Norden, NTfK 1967, 239–245. 277 Inkeri Anttila, Rikosoikeudellisen normijärjestelmän tiedotusongelmia, LM 1967, 39–47. 278 See, e.g., Bruno A. Salmiala, Onko pätevää aihetta luopua nykyisestä vapausrangaistujärjestelmästä ja siirtyä yksilajiseen vapausrangaistukseen? DL 1965, 437–464 [opposing the abandoning of individual institutionalization in favor of a single form of incarceration]; Bruno A. Salmiala, Jumalan pilkka rikoksena, DL 1965, 57–59, 164–165 [opposing the decriminalization of crimes against religion]; Bruno A. Salmiala, Onko rikoslainsäädäntömme uudistamisen suunta oikea? DL 1966, 146–149 [opposing the recent trend to reforming the criminal justice system]. 279 Olavi Heinonen, Kriminaalipolitiikka muuttuvassa yhteiskunnassa, Contra 2/1969, 42–43; Lauri Ke- rosuo, Paha pois juurineen, Contra 2/1969, 39–41; Hannu Tapani Klami, Kriminaalipolitiikan perusongelmista, Contra 4/1969, 19–23. 280 Patrik Törnudd, Syytutkimus ─ kriminologian umpikuja, Sosiologia 3/1969, 119–125. 281 Id. at 126. 282 Kaarlo Helasvuo, Ken oikeutta maassa saa: Kriminaalipolitiikan tarkastelua (Jyväskylä: K.J. Gumme- rus 1969). 283 Inkeri Anttila, Syyllisyysvastuuta kohti, LM 1969, 625–648.

302 of offences in office284 as well as crimes against religion,285 and analyzed the rules against abortion with the intention of clarifying and liberalizing the regulations.286 The new criminology was closely related to criminal policy because the scholars opined that criminological data ought to be used in legislation.287 The politicization of scholarship was obvious. As Jyrki Tala argued, the division between politics and research was unrealistic, and since the Finnish criminal policy was hopelessly outdated, alternative and reformist scholarship was needed to change it.288 Alternative criminology was scholarship for the society of the future, and it progressed along with the criticism of criminal policy. It sought to provide data for reform by pointing out the deficiencies of the system and that it failed to meet the social reality. Alternative scholars argued that values and policies were always part of research, and thus politics and scholarship were inherently connected in the alternative scholarship. Despite the social and political orientation of research and the new perspectives on crime and law, alternative criminology was not after a complete re-make of the system, seeking rather to modify it. An important political issue in which the scholars could also participate was the isolation of dangerous criminals,289 which, according to the alternative scholars, was an expression of the brutal criminal system and the fact that Finland had the highest incarceration rate in Nordic Countries. The critics argued that the contemporary system was arbitrary290 and caused institutionalization amongst the offenders.291 They argued further that isolation followed from the old conception of the criminal as insane, which, however, was against the reformist spirit.292 The new conception of crime and criminals emphasized social structures as the cause of crime. In this vein, criminals were to be treated as normal human beings in need of guidance rather than treatment, not considered as abnormal and therefore hospitalized. The new concept of crime had its effects on criminal law scholarship and politics. The concepts of crime and criminal policy were changing in the 1970s. Raimo Lahti, a young legal scholar and an enthusiast proponent of legal sociology and criminology, argued that since criminal policy should aim at general democratization of society, social policy measures would be the most appropriate way of tackling criminal pol-

284 Paavo Uusitalo, White Collar Crimes and Status Selectivity in the Law Enforcement System (Helsinki: Helsingin yliopiston sosiologian laitoksen tutkimuksia 1969); Eero Backman, Eräitä näkökohtia rikoslain 40 luvun 20 ja 21 §:ssä säännellyistä virkarikoksista, LM 1970, 486–497. 285 Eero Backman, Uskontorikokset ja eduskunta, LM 1972, 597–609. 286 Raimo Lahti, Raskauden keskeyttämistä koskevista rangaistussäännöksistä de lege ferenda, LM 1969, 417–431. 287 Inkeri Anttila & Patrik Törnudd, Kriminologia (Porvoo: Werner Söderström Osakeyhtiö 1970), 203– 227. 288 Jyrki Tala, Tutkimuksen ja politiikan suhteista, Sosiologia 1/1971, 44–46. 289 The criticism and reform of the system of preventive institution in the 1970s is examined in Heikki Pihlajamäki, Pakkolaitokseen eristäminen 1971–1986 (Helsinki: Oikeuspoliittisen tutkimuslaitoksen julkaisuja 1987). 290 Jacob Söderman, Förbrytare på burk, JFT 1967, 399–402. 291 Olavi Heinonen & Paul Perovuo, Vaarallisten rikoksenuusijain valikoituminen, JFT 1969, 443. 292 Inkeri Anttila, Vaaralliset vaarattomiksi, LM 1971, 444.

303 icy.293 The idea of “social policy as the best criminal policy” was, of course, much older, but in Finland it was not seriously advanced until the radicalism and alternative scholarship of the 1960s. During the early 1970s, it became a standard argument of the alternative scholars who canonized the thesis that criminal policy should aim at minimizing the costs and damage of crime and allocating them equitably in society.294 Tradi- tional scholars such as Havansi criticized the new conception because of its many ambiguities,295 but the concept nonetheless became stronger in Finland and also attracted international interest.296 Criminology became an established discipline during the 1960s and 1970s. Schol- ars noted the rise of the new methodologies and their suitability in dealing with contemporary problems of crime. Alternative criminology focused on various contemporary problems and endeavored to point out the connection between crime and society on the one hand and the inappropriateness of the contemporary criminal justice system on the other. This then led to the new concepts of crime and criminality. Criminals were no longer regarded as insane, but were to be understood in their social context. The changes in the concepts and methods of scholarship corresponded with the changes in the general reformist atmosphere of criminal policy, and criminological research was fundamentally linked to politics. Several elements of alternative legal scholarship were thus obvious in alternative criminology. It applied social science methods, perceived law as a tool of social control in a particular social context, was open about values, focused on relevant, contemporary topics, and sought to have an effect on politics. In addition to criminology, criminal law scholarship was changing in other ways as well. Scholars elaborated alternative models of argumentation and interpretation. Although criminal law adjudication is different as compared to private law adjudication, in that the interpretation of facts and rules does not play as much role, there nevertheless is discretion, and that is which legal scholars debated in the late 1960s. The margin of discretion and interpretation and the wide perspective on law and judicial decision- making formed a subject of criminal law scholarship that provided theoretical and political possibilities. The change in the scholarly approach to criminal law adjudication was obvious in the late 1960s. One of the topics that the criminal law scholars debated was whether the definition of petty crime ought to be in accordance with the legislation or according to a case-specific appreciation. The formalist interpretation was that those crimes were to be considered as petty in which the maximum penalty was six months of incarceration at

293 Raimo Lahti, Rikollisuudesta johtuvien kustannusten vähentämisestä ja jakamisesta: Kriminaalipolitii- kan tavoitteiden ja keinojen tarkastelua, II Oikeustiede ─ Jurisprudentia 221, 223–228, 236–254 (1972). 294 Anttila & Törnudd 1970, supra n. 287 at 181–191; Olavi Heinonen, Varkautta koskevat uudet sään- nökset, DL 1972, 461–462; Inkeri Anttila, Olavi Heinonen, Pekka Koskinen, Raimo Lahti, Rikollisuus ongelmana: Kriminaalipolitiikan perusteet (Helsinki: Tammi 1974), 33–45. 295 Erkki Havansi, Rikollisuus ongelmana [book review], LM 1974, 850–851. 296 Raimo Lahti, Rikollisuus tutkimuksen ja päätöksenteon kohteena, LM 1976, 537–538.

304 most.297 There was no general agreement on this, even among traditional scholars,298 and the question was discussed in the 1960s. Some legal scholars thought that the formalist definition was insensitive to special characteristics of the misdemeanor, and therefore the question ought to be determined individually in each case, without however compromising the rule of law.299 The question was not completely about traditional and alternative approaches, since even some traditional scholars endorsed case-specific definition.300 Nevertheless, the polemic reveals that scholars of criminal law were distancing themselves from the formalist, conceptualist tradition and moving toward a more analytical, or realistic tradition. Traditional scholars often stressed legal certainty and the verbatim interpretation of the law. The new trend, however, was to stress the circumstances and a more flexible interpretation. Alternative and critical scholars considered traditional law and legal scholarship reactionary. Criminal legal scholarship was changing in many ways, and the transformation did not always require alternative approaches. For instance, conceptualism in criminal law was criticized because it formalized judicial decision-making and neglected the unique characteristics of a special situation.301 Even in criminal law, alternative scholars began to criticize the myth of the judicial decision as a logical deduction. Ac- cording to Klami, the fact that there was discretion in criminal law adjudication did not, however, mean that it was supposed to be arbitrary. Indeed, more open reasoning would bring more consistency into it.302 For the scholars with reformist views, the sensational criminal cases also demonstrated the outdated nature of the Finnish criminal law. Lahti commented upon the infamous Schüller case, in which lots of people had signed a petition supporting conscientious objection and were tried for a crime. Lahti noted that criminal legislation left much

297 Reino Ellilä & Tauno Ellilä, Mikä on vähäpätöinen rikos? Suomen poliisilehti 1967, 397; Reino Ellilä, Syyttämättä jättäminen ja tuomitsematta jättäminen liikennerikoksista, 60–62, n. 8, in Juhlajulkaisu Tau- no Tirkkonen (Helsinki: Suomalainen lakimiesyhdistys 1968), 51–63; Tauno Ellilä, Keskustelua vähäpä- töisestä rikoksesta, LM 1968, 575–578; Tauno Ellilä, Rikosoikeus ja rikosprosessioikeus, LM 1970, 505, n. 15. 298 See, e.g., the debate between Kurvinen and Honkasalo, which seems to have been based on misinter- pretation, since they both endorsed an interpretation according to which the definition of petty crime was to be made in actual situations. (Pekka Kurvinen, Näkökohtia rikoslain 38 luvun 6 a §:n tulkinnasta, LM 1965, 586; Brynolf Honkasalo, Toisen irtaimen omaisuuden luvatonta käyttämistä koskevien lainkohtien tulkintaa, LM 1965, 966.) 299 Per Lindholm, Till frågan om påföljdseftergift enligt strafflagen, JFT 1968, 549–554; Timo Tuominen, Eräitä mietteitä rikosoikeuden käsitelainopista ja vähäpätöisen rikoksen käsitteestä, LM 1968, 548–549, 558–561; Olavi Heinonen, Toimenpiteistä luopuminen rikosten seuraamusjärjestelmässä, LM 1970, 661 n. 6. 300 According to Lahti, there was no established definition of petty crime in the early 1970s. (Raimo Lah- ti, Toimenpiteistä luopumisesta rikosten seuraamusjärjestelmässä: Erityisesti silmällä pitäen tuomitsematta jättämistä (Helsinki: Suomalainen lakimiesyhdistys 1974), 364.) Legal practice, however, supported the case-specific definition. (Id. at 492.) 301 Tuominen 1968, supra n. 299 at 548–549, 552–553; Timo Tuominen, Vielä vähäpätöisestä vähäisen, LM 1968, 757–758; Pekka Koskinen, Syyteoikeuden vanhentumisesta I: Jatketun rikoksen vanhentumisesta, LM 1968, 379–380; Raimo Lahti, Ns. yhdistetystä rikoksesta, DL 1969, 481. 302 Hannu Tapani Klami, Logiikka ja oikeusturva: Lainanalogiaprobleemasta, DL 1968, 379–381, 386; Hannu Tapani Klami, Nulla poena sine lege ─ mietteitä rikosoikeudellisesta tyyppipakosta, LM 1969, 178–188.

305 room for interpretation and discretion which created the possibility of political and value-based decision-making.303 The crimes against religion were considered to conflict with freedom of expression and religion.304 The argument was that decisions were out of touch with the contemporary society if the decision-making did not pay attention to social considerations. Alternative scholars pointed out that conceptualism made criminal adjudication too formalist and hindered reasonable solutions. With respect to legal reasoning, alternative scholarship endorsed realistic and case- specific argumentation. The new, practical definition of petty crime, for instance, suited alternative scholarship because it enabled the judge to consider social circumstances. The criticism also facilitated making the standards of sentencing practice more humane. Anttila and Heinonen argued that the appropriate penalty in the cases of petty crimes would be a fine or in exceptional cases a very short prison sentence.305 Scholars endorsing an alternative or social perspective on sentencing criticized individualist sentences based on treatment ideology, arguing that the punishment in general should be measured against the level of guilt and the seriousness of the crime,306 and that the actual social consequences of punishments should also be taken into account.307 The criticism of individual prevention and treatment ideology, and the argument for sentencing according to the gravity of the crime followed the criminological observations that the less the punishment imposed on the person, the less the possibility of recidivism.308 The increased interest in sociological research directed attention towards the social consequences of the crime on the one hand and the punishment on the other. Alternative scholars criticized the conceptualist tradition in criminal law for its neglect of the social facts and focusing simply on the letter of the law. They thought that even criminal adjudication could be more open to society while maintaining its special character as a guarantee of legalism and the rule of law. The sociological approach and the criticism of criminal law adjudication were obvious in the studies concerning the equality of sentencing. Raimo Blom’s treatises were the best-known in the regard. He had pointed out the lack of national confidence in the administration of justice,309 and argued that social status had an impact on sentencing.310 He continued the survey studies on criminal sentencing, but did not reveal any significant variation based on the social status of the accused. Nevertheless, he argued that there was a certain amount of discrimination at every level of the administration of

303 Raimo Lahti, Rikoslain 16 luvun 8 ja 9 §:stä, erityisesti niiden uudistamisesta, JFT 1969, 492–494. 304 P.O. Träskman, Korkein oikeus taidearvostelijana? Oikeus 2/1974, 40–42. 305 Inkeri Anttila & Olavi Heinonen, Rikos ja seuraamus: Rikosoikeuden perusteet (Helsinki: Tammi 1974) 32–39, 177 (1971). 306 Inkeri Anttila, Rangaistuksen valitseminen lainsäätäjän ja tuomarin tehtävänä, LM 1973, 381–382; Olavi Heinonen, Rangaistuslajin valinta, LM 1976, 140–143. 307 Anttila & Heinonen 1971, supra n. 305 at 136; Anttila & Törnudd 1970, supra n. 287 at 246–249; Heinonen 1970, supra n. 299 at 664; Lahti 1972, supra n. 293 at 284–291. 308 Klaus Mäkelä, Om straffens verkningar, VI Oikeustiede ─ Jurisprudentia 235, 249 (1975). 309 Blom 1970, supra n. 60 at 33–34. [Thesis] 310 Blom 1970, supra n. 61 at 6–7. [Lectio]

306 criminal justice, which then accumulated into a more serious inequality.311 He also argued that the selectivity of the criminal process followed and preserved the existing social structures and power relations.312 Another sociologist, Klaus Mäkelä also pointed out the correlation between social status and punishment.313 These studies marked the increasing interest in sociological and behavioral research on the judiciary,314 but they also articulated the criticism of selectivity and discrimination in the criminal process. Critical legal scholars argued that legal reasoning was uncertain and arbitrary and that the courts were biased against the lower social classes. These arguments were also advanced in the studies on criminal adjudication in which alternative methods enabled the scholars to go beyond the written decisions and analyze the real motives behind them. This literature was, of course, speculative at best but it did direct the focus to important topics, such as the motivation of court decisions, the rights of the citizen, and equality before the law. These were also the general considerations of alternative scholarship on criminal law. Alternative scholars endeavored to demonstrate that criminal law played an important social role and therefore had to be understood in its social context. Criminal law scholarship underwent some significant changes in the 1970s. The social aspects of crime, the connection between scholarship and politics, and the new tradition of criminal law which emphasized general deterrence and the moral building function became more pronounced. The pioneer of the sociological movement, Inkeri Anttila, and her students wrote a series of text books on criminal law which reflected the new trends during the decade. Books dealing with the basics of criminal law,315 various crimes,316 and the basics of criminal policy317 were published, and a general introduction to all of the issues318 appeared as well. All these books naturally reflected the opinions of their authors and the alternative, reformist thought in criminal law in general. Individual prevention and treatment ideology was condemned and general deterrence and the moral building function of criminal law was emphasized. The social basis of crime was articulated, and criminal policy was linked to social policy.319 The new

311 Raimo Blom, Tuomioistuimien toiminnan puolueettomuus rikosasioissa: Tutkimusmenetelmä ja tuomioperusjoukon erittelyyn perustuvia tuloksia (Tampere: Tampereen yliopiston tutkimuslaitos 1970), 30, 40–41. 312 Blom 1973, supra n. 261 at 101–105. 313 Klaus Mäkelä, Oikeuskäytäntö ja yleinen oikeustajunta, LM 1969, 75, 85. 314 Blom frequently referred to American political jurisprudence as well as to Scandinavian literature on the topic. One of the most influential references was Gunnar Olofsson’s master’s thesis (Gunnar Ol- ofsson, Status och dom i trafikmål ─ en beskrivning av 506 trafikbrottslingar jämte en analys av domsskillnaderna, särskilt med tanke på statusfaktorer (Lunds Universitet: Sociologiska Institutionen 1965), see chapter IV section 4.2 above), which Blom cited as an authoritative study. (See, e.g., Blom 1970, supra n. 60 at 49 n. 9; Blom 1970, supra n. 311 at 11; Blom 1973, supra n. 261 at 78.) 315 Anttila & Heinonen 1971, supra n. 305. 316 Inkeri Anttila & Olavi Heinonen, Rikosten lajit: Rikosoikeuden erityisen osan perusteet (Helsinki: Tammi 1972). 317 Anttila; Heinonen; Koskinen; Lahti 1974, supra n. 294. 318 Inkeri Anttila & Olavi Heinonen, Rikosoikeus ja kriminaalipolitiikka (Helsinki: Tammi 1977). 319 See id. at 30–86.

307 trends that the liberal thought and the alternative scholars had supported were clarified and made explicit. Alternative scholarship was making its way into mainstream jurisprudence, and the basis of criminal law scholarship was changing to some extent. Although traditional professors did not like Anttila’s liberal, sociologically based lectures, they were apparently quite popular among law students.320 Furthermore, Juha Vikatmaa greeted the new text books, with which Anttila had played an important role, for updating the studies of criminal law warmly, praising the books for being progressive in a realist sense and not radical.321 By the end of the decade, the new books had made their way into the requirements of the law degree.322 Criminal law scholarship did change, but no radical alteration of its basis occurred. For instance, the new text books reflected the critical and reformist social thought without being radical. They were critical of the tradition but kept the criticism within reasonable limits, which is what concerned the change in criminal law scholarship in general. Criminological research and the social perspective gained more prominence, and concepts were analyzed more specifically by paying attention to the particular circumstances of actual cases. The conceptual tradition was widely abandoned, if it even existed in the 1960s. Despite the fact that alternative scholarship was victorious in the 1970s, critical scholarship remained on the margins of criminal law scholarship. Since the reformers of criminal scholarship and policy were not critical in a radical sense, the critical legal scholars sometimes noted the lack of reformist potential in the alternative scholarship and thus criticized the “critical”, alternative school of thought. According to Eriksson, the new criminology was utilitarian and functionalist because it saw crime as a necessary part of society, abandoned the concept of the criminal as abnormal, and sought to humanize criminal policy. Marxist criminology, on the other hand, perceived crime as a reflection of the capitalist mode of production, the aim being to change the structures of society, not simply criminal policy.323 Klaus Mäkelä also noted that the recent criticism of criminal policy had focused on decriminalization and humanization of the policy without considering the purposes informing these measures. Crime, however, occurred mostly within the lower social classes, not between these and the upper classes. There was thus a need to reconsider the criminal policy measures in a wider context and sometimes contemplate whether new forms of criminalization would be necessary to regulate the economy.324 Per Ole Träskman also stressed the connection between economic structure and criminality and the social construction of crime which followed from it.325 The perspective on crime became more critical when the Marxist element was added to it. Here the focus was more on the way the criminal justice system reproduced

320 Korpiola 2010, supra n. 86 at 220. 321 Juha Vikatmaa, Rikos ja seuraamus [book review], LM 1971, 537–539; Juha Vikatmaa, Rikosten lajit [book review], LM 1972, 964–966. 322 Oikeustieteellisen tiedekunnan opinto-opas 1977─1978 (Helsingin yliopisto 1977), 58. 323 Lars D. Eriksson, Radikal kriminologi och marxistisk kriminologi, Oikeus 1/1973, 27–32. 324 Klaus Mäkelä, Straffrättssystemets samhälleliga uppgifter, Sosiologia 1973, 3–15. 325 P.O. Träskman, Samhällets produktionssätt och brottsligheten, Oikeus 4/1974, 17–24.

308 the prevailing structures than on the methods of controlling and minimizing crime and its costs. The point of the Marxist arguments was that alternative criminology had focused on crime as a social phenomenon but ignored reconsideration of the society that produced it. Eriksson was a hard-core Marxist and therefore endorsed a criminology that would seek to change the social structures, whereas Mäkelä wanted to analyze the causes of criminal control and consider other measures than the “alternatives” that had been promoted during the previous decade. Träskman encouraged research on the definitions of crime and on the dynamic interplay between the controllers and the controlled. The general trend in the 1970s was to change the official course of the system, but the more critical insights emerged when the interest in Marxism arose. It is important to note that the criminologists and “alternative” criminal law scholars were not critical scholars in the sense of this study, but rather represented the broader transformation of Finnish legal scholarship. The more critical notions on crime and criminal law aimed at changing the basis of society and the criminal system rather than simply the criminal law. Although critical notions on criminal law were rare, the alternative and the sociological view on crime were becoming widespread. There were differences of opinion, nevertheless. Around the mid-1970s, Backman and Lahti elaborated theories for the study of crime, both of which were based on different, albeit sociological theories. In his doctoral thesis, Lahti combined traditional legal scholarship with the recent trends in critical scholarship, sociology of law, and alternative criminology. The predominant element was to understand the purposes of law in their historical and social context.326 Backman provided another theory that bore a close resemblance to that of Lahti but with a Marxist character. Essential for him was to study the connection between law, the state, and the society that surrounded them.327 He thought that social conflicts and controversies were also important in the history of criminal law.328 Although theoretically different, the purpose of the scholarship was political, since it sought to understand the contemporary situation and provide data for change. Since crime was seen as a fundamental part of society in the alternative theory, doctrinal analysis was considered insufficient for a thorough understanding of the law. Social understanding was important for the alternative criminal law scholarship of the 1970s although there were variations in the perspective and purposes of the scholarship. Although a unique effort at its time, Backman’s Marxist theory of crime also had its problems. Klami criticized Backman for not defining his theory clearly enough,329 and Träskman noted that he had not applied his theory to an actual research.330 Back- man’s book was officially the first part and the second volume was supposed to follow. However, it never came. Marxist legal scholarship was difficult because of the ambigui-

326 Lahti 1974, supra n. 300 at 1–41. 327 Backman 1976, supra n. 168 at 14–26. 328 Eero Backman, Rikosoikeus yhteiskunnallisen kehityksen kuvastajana: Huomioita feodaalisesta rikosoikeudesta, VIII Oikeustiede ─ Jurisprudentia 5, 9–13 (1976). 329 Hannu Tapani Klami, Rikoslaki ja yhteiskunta [book review], LM 1976, 654–656. 330 P.O. Träskman, Straffrätten och samhället, Oikeus 4/1977, 258–259.

309 ty of the authentic literature on law and the various possibilities of interpretation that followed. As noted in the previous chapter concerning Scandinavian scholarship, Marx- ist scholars elaborated various theories and often disagreed on what were the most essential aspects. Criminal law was not the most important topic for Marxist scholars, but there were nevertheless efforts to provide general theories on it both in Finland and in Sweden. In the early 1970s, when the criticism of the criminal system had been going on for a while and alternative criminal law scholarship was at the top of its career, the government decided to reform the criminal law completely. The reform was initiated in 1972 and naturally attracted a lot of attention among scholars of criminal law, who both worked on the reform committee and commented on its work. The reform of the criminal law was a part of the more extensive legal reforms of the 1970s that sought to modernize the legal system of Finland. Criticism of the criminal law reform began at an early stage, and scholars stressed the various ways in which they thought the work had gone wrong. A couple of partial reforms had been conducted before the full reform, and there were critical notions regarding the measures already implemented and the direction of the forthcoming ones. Kauko Aromaa noted that the emphasis should be more on decriminalization and humanization than there had been thus far,331 and Backman, commenting on labor crime, argued that the proposed reforms did not pay due attention to the social realities behind the law.332 Marxist legal scholars were sometimes a bit more ambitious about the goals. Eriksson argued that mass criminality could be abolished through abandoning capitalism, and the concept of criminality ought to be redefined.333 Helge Rontu criticized the moderate steps the reform had taken.334 Since criminal law was an important part of the legal system, its reform was not insignificant. The legal scholars who endorsed alternative or critical insights also emphasized these aspects of the reform, pointing out the disparity between the reform and society, or calling for more thorough changes. The total reform of the criminal law took a first major step in 1976 when the reform committee published its first report.335 Alternative legal scholars had a considerable position on the committee, as was evident in its work. Those included were Antti Kivivuori, Inkeri Anttila, Raimo Blom, Olavi Heinonen, Klaus Helminen, Mikko Kämäräinen, Klaus Mäkelä, and Patrik Törnudd. As is obvious, there were four alternative legal scholars, two of whom, Kivivuori and Blom, were also critical, and Heinonen had proposed radical changes in the judiciary while working for the reform committee. In addition, Törnudd and Mäkelä were sociologists, promoting alternative insights. Al- ternative legal scholarship was not simply academic action, but it was also socially influential and provided opportunities for the scholars to participate in governmental jobs,

331 Aromaa 1972, supra n. 115 at 44–46. 332 Eero Backman, Työrikostoimikunnan I mietinnön esittelyä ja arviointia, Oikeus 4/1973, 34–40. 333 Eriksson 1973, supra n. 323 at 32. 334 Helge Rontu, Rangaistusjärjestelmän uudistus, Oikeus 2/1975, 15. 335 Rikosoikeuskomitean mietintö 1976:72.

310 the best example being Antti Kivivuori, who worked as the chief of law drafting from the beginning of the 1970s. Alternative legal scholarship had achieved an influential position in criminal law in the mid-1970s, as the scholars sat on the committee. They influenced the report and the direction of the reform considerably. They wrote in the report that crime was a social phenomenon, and that the goals and policies that the criminal law was to promote had to be analyzed in the context of reform. They rebutted treatment ideology and individual prevention and emphasized the importance of social policy in crime prevention. Furthermore, they wrote, criminal sanctions should intervene in the rights of the criminal as little as possible considering the situation.336 The arguments that the alternative scholars had highlighted since the mid-1960s had found their way into the pages of an official report of the government. Criminal law in Finland was about to take several steps towards modernization. The publication of the report was an interesting topic for the legal profession, not just for alternative scholars although they obviously were especially interested in it because their scholarship was often politically oriented.337 Eriksson, who was known for his radical insights, criticized the committee for focusing on liberal ideals and not analyzing the structure of society critically. Therefore, he argued, the draft was too moderate.338 Backman and Takala criticized the committee for not considering criminal law as an elementary part of the state in its historical and social context.339 Jaakkola and Träskman noted that the reform most likely would not have decreased the number of inmates.340 Raimo Lahti, who mostly was satisfied with the sociological perspective of the committee, noted that it had not paid due attention to social policy and decriminalization.341 The criticism quite naturally followed the scholarly insights of the commenta- tors. The more critical scholars argued that the committee had ignored the analysis of the social structures while dealing with criminal law. Their emphasis in this regard was more thoroughgoing social change because they seemed to have opined that law alone could not bring much change. In general, since the reform was a part of the wider reconsideration of the legal system, alternative scholars stressed the need to see it in the context of the humanization and democratization of society at large. The reform was obviously not a simple task and many conflicting opinions had to be balanced while making it. Kivivuori, who was the chairman of the committee, noted this while defending the work of the committee, and criticized Eriksson for not making any constructive suggestions about how to conduct the reform.342 Törnudd also defended the work of the committee by noting that the awareness of the relationship between

336 Id. at 3–6, 38–60, 62–67. 337 The issue of Oikeus 2/1977 was dedicated to reviewing the report. 338 Lars D. Eriksson, Straffrättskommitténs anatomi, Oikeus 2/1977, 72–79. 339 Eero Backman & Hannu Takala, Rikosoikeus, yhteiskunta ja rikosoikeuskomitean yhteiskuntakäsitys, Oikeus 2/1977, 86, 89–92. 340 Risto Jaakkola & P.O. Träskman, Rikosoikeuskomitean rikoskatalogi, Oikeus 2/1977, 84. 341 Raimo Lahti, Rikosoikeuskomitean kriminalisointeja koskevat ehdotukset, LM 1978, 809, 823–824. 342 Antti Kivivuori, Eräs luento rikoslakimietinnöstä, Oikeus 3/1977, 156–159.

311 crime and society had increased during the recent years and had been taken into account in the work, even if disagreement arose as to the nature of the relation.343 On the other hand, Blom, who was the most radical representative on the committee, had left a dissenting opinion in the report criticizing its superficial historical analysis and its neglect of the class conflict and criminal law as a protector of the status quo.344 There was of course much more disagreement as to the details of the reform, but the fundamental difference was in the perception of crime as a social phenomenon. Critical legal scholars usually argued that criminal law was a reactionary factor in society and the trend to humanize it was simply another apology for the social structures and their preservation. Since the purpose of the critical legal scholarship was to go beyond the law to see its ultimate motivation, the critical scholars were not pleased with a reform that was in many ways a considerable change. In many respects, the reform of the criminal law conformed to the progressive debates of the 1960s and 1970s, and thus also to the alternative legal scholarship on criminal law. To the legal scholars who endorsed or sympathized with these, the reform set out good guidelines on which to build the future.345 The same also concerned the reform of imprisonment.346 However, the traditional profession was not as convinced about the direction of the reform as many scholars were. For instance, the Finnish Bar Association thought that the report on the reform was one-sided and overstated in many ways, since criminal law was supposed to be a relatively conservative branch of law. Therefore, a partial reform might have been better than a total one.347 Although the progressive spirit was strong in society, the legal profession in general was still conservative. The traditional profession wanted to maintain the fundamental characteristics of the legal system and, even if it realized the need for reforms, it always insisted on moderate and cautious progress. The alternative and the more progressive sides of the profession were manifested in the activities of the Association of Democratic Lawyers. The legal profession in general was not particularly enthusiastic about social radicalism, which is precisely what the alternative scholars attacked. The reform of the criminal law aptly represented the alternative spirit of the 1970s. It was not a simple triumphal march of the alternative legal scholars although it conformed to their arguments, but a result of varying impulses and conflicting arguments.348 Nevertheless, it conformed closely to the alternative scholarship that sought to

343 Patrik Törnudd, Rikoslakiuudistus ja periaatemietintö, Oikeus 3/1977, 163. 344 Rikosoikeuskomitean mietintö 1976:72, 37, 41–42. Backman and Takala referred to Blom’s dissent in their criticism. It was, of course, explained in the report that it had to settle on superficial historical analysis because of the extent of the subject and the ambiguity of its interpretations. (Rikosoikeuskomitean mietintö 1976:72, 13.) 345 Pekka Koskinen, Rikosoikeuden viimeaikaisista uudistuksista ja kehitysnäkymistä I–II, DL 1979, 83– 95, 185–189. 346 Pekka Koskinen & Raimo Lahti, Vapausrangaistusjärjestelmän uudistus (Turku: Turun ylipiston julkisoikeuden laitos, Rikos- ja prosessioikeuden julkaisusarja B n:o 2 1977). 347 Rikoslainsäädännön kokonaisvaltainen perusuudistus? [Asianajajaliiton lausunto] DL 1978, 31–38. 348 Jukka Kekkonen argues that it is too simplistic to see the reforms of the Finnish criminal policy as a direct outcome of the scholarship and politics of the 1960s, and pursues a broader perspective on the

312 perceive crime as a social phenomenon and to provide measures for minimizing the costs and damage caused by crime and distribute them justly and equally in society. Data on alternative criminology was applied in the reform in order to justify and moti- vate the reforms, which reflected the general critical arguments of the time and aimed at making punishment simpler and milder, terminating the effects of treatment ideology and individual prevention, and establishing a criminal system that would be based on general deterrence and equal and humane treatment of criminals. Much disagreement arose as to the details of the reform, and critical legal scholars were dissatisfied with its moderation, but in general there was relative unanimity about its goals. The reform was not finished until the beginning of the twenty-first century and by then the idea of totality had been abandoned and the reform was executed in parts. Just as in the United States and Scandinavia, criminal law proved to be an arena in which scholars could use the methods of social sciences and present a critique of society and legal practice in Finland as well. And as in Scandinavia, criminal law was also one of the first branches of law in which the alternative and critical insights began to acquire a strong position in Finland in the 1960s. Alternative criminology criticized the old concepts of criminality, criminal law, and criminal policy, and began to pile up data for a change of thought. It sought to demonstrate that crime was more common than was usually assumed, emanating mostly from social structures, and that criminals often were not deviant people. Therefore, the alternative scholars argued, criminal policy ought to be seen as a part of general social policy, which should promote social equality and democracy. Criminal law scholarship was also an area in which the arguments for alternative legal scholarship had significance in the practice of research, in which scholarship and politics were closely connected. And because much of the alternative legal scholarship conformed to the general progressive social thought, it had practical relevance. Many of the insights of alternative criminology followed the social criticism, but they also helped to define and conceptualize it. Criminal law scholarship changed to an extent in the 1970s in Finland. Sociology of law and alternative criminology achieved an established position in Scandinavian legal scholarship in the 1960s when they also began to have a considerable influence in Finland. Because the alternative scholarship fitted well with the critical spirit of the 1960s, it was easy to adapt to the new circumstances. Nevertheless, alternative criminologists were not critical scholars, representing the non-radical, alternative thought of the 1960s and 1970s. During the 1960s, criminological data was used to support the criticism of society. The end of the decade was a time of active social debate and criticism, and the alternative criminologists found a place within the discourse. By the 1970s, the new currents of criminal law scholarship were popular among students and young scholars, new text books emerged in addition to the massive amount of literature, and the alternative scholarship had political significance. The paradigm of criminal law change in criminal policy. (Jukka Kekkonen, Suomalaisen kriminaalipolitiikan menestystarina ─ tarua vai totta? in Jukka Kekkonen, Muutos ja jatkuvuus: Näköaloja oikeushistoriaan (Helsinki: Talentum 2003), 182–196.)

313 scholarship did change, even if not radically. Although the change of paradigm was most obvious in criminal law, other branches, and even legal education, experienced similar changes. The following sections should place the rise of the alternative legal scholarship in the 1970s in a larger context.

5 Alternative legal scholarship on private law in the 1970s

5.1 General remarks

In this section I will analyze the role of alternative and critical legal scholarship on particular branches of private law; labor law, family law, and contract law respectively. My analysis is rather brief and will not provide a thorough account of the changes that occurred. Rather, I will focus on critical notions and alternative scholarship and provide sketches of the changes. In addition, legislation in these areas was extensively reformed during the 1960s and 1970s, but since my focus is on academic legal scholarship, I will not consider the legislative change. Since the 1970s marked a serious number of alternative approaches to legal research,349 a brief account of them will provide insights into the development of alternative scholarship and critical thought on law. My analysis will further demonstrate that critical legal scholarship was a radical aspect of the transformation of Finnish legal scholarship in the 1960s and 1970s. Legal scholarship in general was embracing towards new ideas, and the radical critique, the critical legal scholarship, was an extreme and a counter-cultural academic manifestation of the times. Alternative scholarship and criticism of private law were not especially radical. The trend in this respect was more to perceive the problems in a social context and to understand the origins and functions of legal rules. Just as was the case in criminal law, alternative scholarship on private law was not radical criticism of the tradition, but an alternative to traditional scholarship, emphasizing such things as the empirical, social, and political aspects of scholarship. This was so because radical scholars put their arguments within a more general criticism of either legal scholarship or constitutional law. Thus, for instance, freedom of contract was an essential part of critical scholarship even if it was not especially mentioned. Alternative scholars on contract law noted that the doctrine on freedom of contract was far more problematic when this was considered in law in action instead of law in books. In much of the alternative scholarship on private law, however, the sociological approach and the critique of ideology relating to it revealed several interesting issues that were close to the radical critique without however taking the next step.

349 Kangas (ed.) 1998, supra n. 20, esp. at 187, 195–197, 265, 271, 316, 320, 374, 393, 400.

314

By the early 1970s, there were many young scholars at the university who wanted a scholarly identity. For one reason or another, the descendants of the 1960s wanted to pursue something new in scholarship and adopted an alternative perspective on legal scholarship. Alternative legal scholars on private law were thus mostly young, left- leaning scholars who wanted to participate in contemporary debates on relevant social and legal problems, on which their studies mostly focused. These reflected the radical thought in many respects without however adopting a particularly radical stance on the law or traditional legal scholarship.

5.2 Labor law

Because critical legal scholarship was essentially Marxist and leftist, labor was obviously an important topic for it. The industrial working class became more powerful in the 1960s and 1970s and acquired a sizable representation in the parliament. Hence labor legislation was reformed during these years. As we saw, several work-related issues were also brought up in the criticism of the Constitution. Scholars argued that political democracy without industrial democracy was inadequate and called for a reconsideration of the concept of property in order to make the rights of the working class more efficacious. Problems regarding labor and its legal regulation thus pertained to the reform of the Constitution to some degree.350 Industrial democracy was an important part of acquiring equal rights for the workers,351 but this required an alternative perspective on the issue because the traditional, bourgeois perspective was considered to distort the perception of reality.352 In order to be effective in fact, workers’ rights required fundamental changes in the Constitution and society.353 Labor law had a central position in critical legal scholarship, but the scholars often thought about the problems in some other connection. The rise of critical legal scholarship in the late 1960s contributed to the emergence of structural and critical perspective on the research on labor law. The Marxist emphasis on the conflict between labor and capital led many scholars to criticize the law. Work accidents, for instance, were considered as structural violence the risk of which was distributed unequally to the workers.354 Kai Kalima criticized the common notion of political strikes as illegal, which, he claimed, followed from the fact that they were a threat to the prevailing social order.355 Vaajala criticized the identification of strikes and

350 See, e.g., Perustuslain uudistaminen. Työväen kulttuuriviikko ─ Jyväskylän talvi 1974. 351 Olavi Sulkunen, Olavi Kämäräinen, Kimmo Kevätsalo, Jukka Sädevirta, Yritysdemokratia ─ demokratia työelämässä (Helsinki: Kansan Sivistystyön Liiton kirjeopisto 1973). 352 Jukka Gronow, Yritysdemokratia ja taloudellinen demokratia, Politiikka 1/1970, 82–91. 353 Kimmo Sädevirta, Työ perusoikeutena, 6–8, in Perustuslain uudistaminen 1974, supra n. 350. 354 Matti Lahti, Työtapaturmat ─ onnettomuuksia vai rikoksia, Oikeus 1/1972, 46–53. 355 Kai Kalima, Poliittiset työtaistelutoimenpiteet ─ työväestön oikeus yhteiskunnalliseen hätävarjeluun? Oikeus 1/1973, 5–10.

315 lockouts because the latter was an expression of ruling class power. Thus, for example, salaries should be paid during the lockouts.356 The alternative perspective of the 1970s regarded labor problems differently than the traditional perspective, the alternative conception being that labor problems were not simply questions of law but social problems. The alternative perspective was needed because, according to the critical thought, traditional legal consciousness mystified and reified labor relations and thus made them seem different than what they in fact were.357 While turning the perspective, scholars argued that restrictions on the right to strike were not a solution because they did not concern the reasons for striking. Rather, the legislator should apply restrictions on lockouts,358 and stipulate the right to strike and its scope in the Constitution.359 Even if the perspective was not radical in the sense that it sought to alter the basis of the society or legal scholarship, it nevertheless drilled down to the core of the problem. Alternative scholarship regarded labor law as a reflection of the society and therefore pursued a more comprehensive image of it. A Marxist perspective on labor law also emerged alongside the alternative view. The most prominent Finnish Marxist labor law scholar was Niklas Bruun, who had already published noteworthy writings in his mid-twenties, and who was the Finnish contact person for the Nordic Marxist law journal, Retfaerd. A key to his work was the notion that since labor law had developed into a special branch of law emanating from the conflict between capital and labor, it concerned special problems and was to be examined in accordance with its special characteristics.360 The Marxist approach brought a useful perspective to research on labor law, but this did not mean that labor relations were seen as completely determined by the class conflict, or that there was to be a complete alteration in the structure of labor. As the example of Bruun demonstrates, Marx- ism could be applied as constructive criticism of the prevailing law and as a tool for politically oriented legal scholarship. Bruun’s studies were alternative legal scholarship, seeking to provide alternative interpretations of the existing system and contemplate the potential for reform. He examined the right of an employee to abstain from work in cases in which the employer had violated certain regulations. In a realistic and social analysis of the law, he concluded in favor of the employee in practically every situation.361 He also analyzed the right to salary of an employee who was willing to work during a strike,362 the problem of company housing in the context of housing production in Finnish capitalism,363 and pointed out why there had to be a specific consent to do overtime at work on every oc-

356 Hannu Vaajala, Työsulun oikeudellisesta asemasta, Oikeus 2/1976, 72–76. 357 Sädevirta 1974, supra n. 353 at 2–3. 358 Vaajala 1976, supra n. 356 at 77. 359 Jorma Saloheimo, Työtaisteluoikeuden perustuslainturvasta, Oikeus 4/1977, 221, 235–239. 360 Niklas Bruun, Arbetsrätt och civilrätt ─ några utvecklingslinjer, Retfærd 1/1976, 32–34. 361 Niklas Bruun, Työntekijän oikeudesta pidättäytyä työstä (Helsinki: Helsingin yliopiston yksityisoikeuden laitoksen julkaisuja 1975). 362 Niklas Bruun, Om arbetsvillig arbetstagares rätt till lön vid strejk ─ än en gång, JFT 1975, 166–178. 363 Niklas Bruun, Om bostad i anslutning till arbetsförhållande, JFT 1975, 415–463.

316 casion.364 By analyzing the facts of the matter and the effects of the law realistically, alternative scholars criticized the prevailing law and legal scholarship and argued for better protection for the employee. Whereas traditional scholarship focused on concepts and rules, alternative scholarship examined their social functions and the effects on the people they concerned. The alternative approach to labor law had become more common in the late 1970s. Bruun summarized his critical scholarship in his doctoral thesis on the influence of ideology on collective agreements. He sought to demonstrate that the conflicting ideologies of the labor parties were incorporated into collective agreements, were reified by legal concepts, influenced the practice of labor law, and were missed by traditional legal scholarship.365 The treatise was a particular study on the general argument of critical legal scholarship that ideologies affected law and created structural limitations on its application. In the case of collective agreements, Bruun argued, the employer as the stronger side could create the ideological context and hence prevent change. Therefore, labor law scholarship had to account for the ideological element of law and analyze the structural and systemic relevance of values in addition to open argumentation.366 The impact of values on law was also evident in the doctoral thesis by Matti Mik- kola who analyzed the terms of unemployment benefits from the perspective of values and policies and argued that they affected the practice of granting benefits. Thus, he too encouraged research on values in order to explicate the law in action.367 This was also a study on a then relevant social problem, pointing out the inadequacies of traditional legal scholarship as well as the problems of law in the welfare context. Unemployment was a pressing problem in the late 1970s, and its handling within the context of the welfare state, which was also being criticized, was a further problem. The studies by Bruun and Mikkola, alternative legal research on the labor law issues in the late 1970s, reflected the critical thought and the political orientation of alternative legal scholarship. They both encouraged more open research on values, policies, and ideologies, and sought to reveal problems relating to both legal practice and scholarship. Alternative legal scholarship was partly work on new social and legal problems relating to the development of the modern welfare state in the 1960s and 1970s as well as inter-disciplinary scholarship applying new approaches and methods in dealing with legal problems. Although labor had a central position in the critical thought, there were not particularly many specific critical examinations of it. Critical legal scholars were more concerned with general problems and their relations to labor law, whereas scholars who wanted to pursue a career in the field were concerned about more traditional measures, although from an alternative perspective.

364 Niklas Bruun, Om arbetstagares samtycke till övertidsarbete, JFT 1976, 189–199. 365 Niklas Bruun, Kollektivavtal och rättsideologi: En rättsvetenskaplig studie av de rättsideologiska premisserna för inlemmandet av kollektivavtalet och kollektiva kampåtgärder i finsk rättsordning efter år 1924 (Helsinki: Juridica 1979). 366 Id. at 369. 367 Matti Mikkola, Työttömyysturvan ehdoista: Oikeustieteellinen tutkimus työttömyyskorvauksen hakijan asemasta ja oikeussuojasta (Helsinki: Suomalainen lakimiesyhdistys 1979).

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5.3 Family law

Family law provides an interesting perspective on alternative legal scholarship and the transformation of Finnish legal scholarship in the 1970s in general. Since it was Aar- nio’s major field, his analytical hermeneutics had a significant influence on scholarship in this area. Furthermore, as a young professor in the early 1970s, he established a study group on law and philosophy, known as “Aarnio’s Circle”, where law students and young legal scholars discussed legal philosophy and the practices of sociological jurisprudence.368 Aarnio and Ahti Saarenpää had noted in 1969 that lawyers had lamented the fact that legal literature was often theoretically oriented even though more practical research was needed,369 and the 1970s witnessed several studies on practical problems and on law in action.370 Family law thus proved to be in a significant position for a realistic and sociologically oriented legal scholarship. Part of alternative scholarship was to perceive law in action in its social context. This was evident in much of the alternative scholarship on family law. In an empirical analysis based on statistics applying to typical situations, Rauno Halttunen explored how inheritance functioned in practice. His study was politically oriented and provided data for reforms intended to modernize law.371 In an empirical analysis of court decisions and social functions and the effects of alimony, Markku Helin renounced the use of the logical syllogism in this area.372 The studies did not simply systematize and interpret legal rules, but sought to comprehend their functions and effects. Sometimes they had more of a comprehension purpose, and sometimes they sought to have an impact on law. In any event, they kept apart from traditional scholarship in the endeavor to see law in context. The new text books also marked the transformation of legal scholarship on family law. Aarnio wrote a book on wills with the intention of providing a contextualized, realistic account. He also emphasized the significance of subjective interpretations in practice and criticized the conceptualist tradition.373 In a book on custody, Ahti Saarenpää, Heikki Mattila, and Matti Mikkola criticized the traditional text books for their normative approach, as well as for neglect of social circumstances and their systemic significance for law. They examined custody in its historical development and discussed its

368 Kangas (ed.) 1998, supra n. 20 at 196–197. 369 Aulis Aarnio & Ahti Saarenpää, Testamenttiasiain käytäntöä, DL 1969, 432–433. 370 Aulis Aarnio & Urpo Kangas, The Family Law Research in Finland during the 1970s (Helsinki: Hel- singin yliopiston yksityisoikeuden laitoksen julkaisuja 1978); Kangas (ed.) 1998, supra n. 20 at 306–307, 310–312, 315–316, 320. 371 Rauno Halttunen, Perimysoikeuden laajuudesta: Tutkimus kuolinpesien varallisuudesta ja perillisten ikärakenteesta, I Oikeustiede ─ Jurisprudentia 195–245 (1971). 372 Markku Helin, Puolisolle avioeron yhteydessä tuomittavasta elatusavusta ─ Tutkimus Helsingin raastuvanoikeuden käytännöstä, II Oikeustiede ─ Jurisprudentia 131–183 (1/1972). 373 Aulis Aarnio, Jälkisäädökset: Testamenttioikeuden oppikirja (Helsinki: Lainopillisen ylioppilastiedekunnan kustannustoimikunta 1972), see esp. at v–vii, 17–19, 48–57. The analysis of the relationship between social and economic structures and inheritance resembles Marxism.

318 social functions.374 While the book was a progressive text book applying alternative approaches on custody,375 to radical scholars it merely extended the basis of scholarship but was traditional in its substance.376 The book thus reflected several aspects of alternative legal scholarship, but was not critical in a radical sense. It rather aimed at examining the historical origins and social functions of legal institutions in order to understand them, and to bring legal scholarship closer to social sciences. Seeking to understand law in its social context provided the potential for slightly more critical arguments. Referring to the Marxist conception of society, Mikkola argued that the western concept of marriage was an economic institution, based on male- dominance and aiming at maintaining social hierarchies, whereas the socialist conception was based on equality and reciprocal love.377 In a treatise on the position of illegitimate children he concluded that the Finnish law was totally outdated and ineffectual. He argued that the law was structured to protect the existing social structures and that scholarship on it focused on the concepts and neglected the reality behind them.378 He also criticized the new legislation on child support because it treated illegitimate children unequally and did not guarantee public responsibility for taking care of children in need.379 The comprehensive account of law in its historical and socio-economic context was also used to criticize the contemporary legal system. Mikkola used this approach on some occasions to criticize the basis and structure of law. His book on the position of illegitimate children was a realistic study of empirical data, based on a historical and social context, and analyzing values and policies openly. The emphasis on history, social sciences, and values marked a clear connection with alternative and even critical legal scholarship, but the book was interesting to legal scholars with a less critical perspective as well.380 Furthermore, he focused on the form, content, and basis of the law in his criticism of the law on child support. The critique thus emanated from the criticism of the structure and the basis of law. The interest in understanding the system was expressed in several ways. Sami Mahkonen, for instance, studied the history of child protection,381 and Heikki Mattila compared child law in socialist and Western countries.382 Mattila’s comparative analysis aimed at understanding the law in different social structures, which was important because law reflected its social connections. Comparative studies helped to understand the

374 Ahti Saarenpää, Heikki Mattila, Matti Mikkola, Holhous ─ yhteiskunnallinen ongelma: Luentoja holhousoikeudesta yhteiskunnallisen kontrollin osana (Helsinki: Tammi 1972). 375 Matti Savolainen, Holhous [book review], LM 1972, 543–545. Savolainen wrote that in certain respects the authors could have been more critical. 376 Mäenpää 1972, supra n. 114 at 6. 377 Matti Mikkola, Marxilaisuus ja kristillinen avioliitto, Contra 4/1970, 21–23. 378 Matti Mikkola, Avioton lapsi (Helsinki: Tammi 1972). 379 Matti Mikkola, Lapsipaketti, Oikeus 1/1973, 39–41. 380 See, e.g., Pirkko-Liisa Aro, Kirja-arvio [Avioton lapsi] LM 1972, 969–971. 381 Sami Mahkonen, Köyhä lapsi: Selvitys lastensuojelulainsäädännön historiasta vuosina 1849─1936 (Helsinki: Helsingin yliopiston yksityisoikeuden laitoksen julkaisuja 1974). 382 Heikki E.S. Mattila, Kansandemokratia, laki ja lapsi (Helsinki: Helsingin yliopiston yksityisoikeuden laitoksen julkaisuja 1972).

319 differences in law because they could be seen in relation to their origins and purposes. It also brought an aspect of alternative to the analysis by presenting socialist legal system as a possible point of reference. By reviewing socialist law as a possible alternative to the Finnish legal system, alternative legal scholars sought to demonstrate the humane aspects of socialism. The alternative pursuit of understanding and criticizing law was clearly evident in Markku Helin’s study on divorce law, which analyzed its development as a series of compromises between the church and the state on the one hand and between conservative and liberal notions on the other. He then examined the law in action, emphasizing the purposes and effects of law which, seemed to him to have been to forestall divorce.383 The obvious purpose of the book was to promote liberal notions on marriage and divorce. It aimed at an egalitarian society where divorce would not have been a ta- boo, but where its consequences would have been evenly distributed on every account. Its methodology, nevertheless, was a manifestation of alternative scholarship. History and society were important, and legal rules were scorned whereas legal practice was stressed. As has been demonstrated above, family law was a fertile ground for alternative legal scholarship in the 1970s, providing important contemporary topics to study and on which to take a stand and provide data for reforms. Aarnio’s interest in philosophy and comprehensive legal scholarship was obviously important in this regard, and he also managed to gather several young scholars who were enthusiastic about alternative approaches to research and liberal about society. The liberalization of the society, the struggle for equality between the sexes, the pursuit of the welfare state, as well as the interest in analytical hermeneutics and sociological and critical jurisprudence all paved the way for family law to be a significant area for alternative legal scholarship.

5.4 Contract law

Critical legal scholars did not pay particular attention to special problems of contract law because their criticism of freedom of contract and its consequences for the legal system was manifested through their general critique of law and legal scholarship. Nev- ertheless, contract law scholarship also moved from traditional scholarship and towards alternative approaches in the 1970s. Whereas the traditional jurisprudence emphasized the contract as a free, binding instrument which executed the combination of the individual will of the parties, the alternative approach of the 1970s began to see contract as a social instrument fulfilling social purposes as well. Alternative scholars were particularly interested in the social aspects of contract law. In the 1970s, scholarship was changing to the extent that the contract was being

383 Markku Helin, Suomalainen avioeroprosessi (Helsinki: Tammi 1974).

320 detached from its conceptual background and seen as a social institution,384 and alternative scholars began to view particular problems in their special contexts.385 Scandinavi- an scholarship had moved towards a more social perspective on contract ever since the time of realism of the 1930s, and particularly during the postwar years. Finnish jurisprudence, however, had remained closer to the conceptualist tradition. In the 1970s, Finnish scholars also began to take alternative approaches, partly because of the Scan- dinavian influences. This meant that contract law was linked to its social and economic background and more flexible methods of argument were applied. The emphasis on discretion and interpretation followed partly from the increased use of standard contracts and general clauses in legislation on contractual relations. The openness of legal rules had been recognized before of course,386 but the thinking of the 1970s on consumer protection and the weaker party in general attracted the interest of increasing numbers of scholars of the problem. For instance, Pirkko Aro noted that both legal practice and the common opinion of the scholars favored the interpretation that there was a general principle on adjusting contracts even if there was no special provision.387 General clauses and their interpretation and application were particular problems of the 1970s.388 For alternative legal scholars, however, they presented a problem of promoting social values through law. Thomas Wilhelmsson argued that since general clauses created an illusion of equality, there was a need to elaborate doctrines guaran- teeing that the open clauses would be interpreted in favor of the weaker party.389 An aspect of alternative legal scholarship was to integrate policies into sociological jurisprudence, and general clauses on contract law provided an interesting subject. Here one could analyze the reality between contractual relations and argue for case-specific argumentation in which the needs of the parties would be taken into account while making sure that the weaker party’s interests were protected. The changes in society and contractual relations in the 1960s and 1970s changed the law as well as legal scholarship. The 1970s was a time of much progressive legislation on contractual relations,390 and the new problems also encouraged a considerable amount of research. While comparative studies between Finland and the Soviet Union were important in this respect as well,391 most of the alternative research was concerned

384 Lars Erik Taxell, Avtal och rättsskydd (Åbo: Åbo akademi 1972). 385 Thomas Wilhelmsson, Några synpunkter på bensinbranschens dealeravtal, JFT 1973, 375–416. 386 L.E. Taxell, Norm och prövning, JFT 1964, 369–379. 387 Pirkko-Liisa Aro, On tillämpning av SBL § 8 ─ några reflexioner med anledning av et rättsfall, JFT 1974, 179–185. 388 Terttu Apala-Arlander, Yleislausekkeista: Oikeussäännösten muotoamiseen ja soveltamiseen liittyviä kysymyksiä (Helsinki: Suomalainen lakimiesyhdistys 1972). The problem of general clauses was, of course, noted at least in the early 1950s. (T.M. Kivimäki, Yleislausekkeet oikeusvarmuutta heikentävinä tekijöinä, LM 1950, 302–318.) In this article, however, the concern was their possible harmful impacts on legal certainty. 389 Thomas Wilhelmsson, Kontrakträttens generalklausuler, Oikeus 2/1975, 12. 390 See, e.g., the proposal for the consumer protection law (Oikeusministeriön lainsäädäntöosaston julka- isu 12/1974). 391 Juha Tolonen, De rättsliga grunderna för licensiering, särskilt i handeln mellan Finland och Sovjetun- ionen, JFT 1974, 336–353.

321 with contemporary domestic problems, particularly concerning the changed social circumstances, standard contracts, and freedom of contract.392 Consumer protection was of special importance since such problems had increased, and the first consumer protection law was enacted in 1978. Alternative scholars noted many problems with respect to consumer protection, since courts, which were often a very conservative element in society, had an especially large margin of discretion in this area.393 Furthermore, Tala stressed that legislation might have had different influences on different people, and this was an important aspect to take into account.394 The notion of flexible argumentation and legal reasoning that would pay particular attention to the special needs of the parties was often elaborated in the late 1970s. It was an outcome of the earlier critical legal scholarship and of the fact that consumer problems and standard contracts had become pressing legal problems. In this respect, both sociological jurisprudence and alternative reasoning suited the case. The politicization of research and the endeavor to have an impact on social reform were obvious in the alternative legal scholarship, which often aimed to explicate the purposes and functions of law and then to provide data with arguments on values and policies in order to influence the possible reforms. Thus, the late 1970s was an obvious continuation of the critical scholarship of the late 1960s. A notable scholar was Thomas Wilhelmsson, who encouraged research on the motives of the legislator.395 In his doctoral dissertation, he examined the possible dissonance between the goals and the consequences of insurance law, concluding that the law left great scope for interpretation and discretion and that the goals of the legislator were not often achieved in practice.396 The purpose here was to point out the uncertainty of law and the gap between law in books and law in action that followed. The emphasis on behavioral and political aspects of law was also apparent in the study. Besides the methodological aspects, Wilhelmsson also pointed out that the freedom of contract was problematic in insurance contracting. According to him, if this freedom was understood as the power of the individual to govern the terms of the contract, then an individual consumer had no such freedom in contracting with an insurance company because the terms were determined by the insurer by and large.397 This then raised the problem of the actual non-freedom of contract and the possibility of controlling it.398 This was also a problem which consumer protection was meant to regulate.399

392 Aulis Aarnio, Sopimusvapaustutkimuksesta, XI Oikeustiede ─ Jurisprudentia 5–8 (1978). 393 Thomas Wilhelmsson, Om tro och heder i finsk avtalsrätt: Avtalslagens § 33 i rättstillämpningen, XI Oikeustiede ─ Jurisprudentia 35, 41 (1978). 394 Jyrki Tala, Kuluttajansuoja ja sopimusvapaus: Sopimuskäyttäytymisen ohjaamismenetelmiä kulutta- jansuojalainsäädännössä, XI Oikeustiede ─ Jurisprudentia 159, 252, 304–305 (1978). 395 Thomas Wilhelmsson, Konsumentskyddet, försäkringsrätten och rättsvetenskapen, JFT 1977, 401– 407. 396 Thomas Wilhelmsson, Om styrning av försäkringsvillkor: En rättsvetenskaplig studie angående avtalsfriheten vid frivillig skadeförsäkring (Helsinki: Suomen lakimiesliiton kustannus 1977). 397 Id. at 63–65. 398 Jyrki Tala, Vakuutussopimuslain tavoitteet ja vaikutukset, Oikeus 2/1978, 99. 399 Tala 1978, supra n. 394 at 172, 304.

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Wilhelmsson argued that because of the actual inequality of the parties, freedom of contract could sometimes function as a guardian of the prevailing power relations.400 The problem of freedom of contract was seen as a structural problem relating to society and thus causing further problems for regulating it in action. It was noted that the inequalities in power to negotiate the terms of the contract whittled the content of the freedom away to the extent that in some cases there was no such thing. Freedom of contract was also brought up in the criticism of the absolute protection of private property, since it was often understood that the protection also covered contractual freedom.401 Jyränki argued that freedom of contract had escaped the economic regulation of property, but there ought to be consideration of limitations with respect to this as well.402 Critical legal scholars thus brought up the problem of freedom of contract in their general criticism of legal scholarship as well as in the criticism of the constitutional protection of private property, whereas alternative scholars paid attention to it in specific cases, such as standard contracts. It indeed was an essential element of the legal system, but it was not in any special position in the critical legal scholarship. Criti- cal scholars were more interested in general problems, such as jurisprudence, the Con- stitution, or criminal law, probably because these were more pressing social problems and easier to relate to the social deficiencies, and the problems of contracts were dealt with in passing. Moreover, contract law was not the most essential aspect of Finnish legal thought, because the Finnish legal system was diversified into specific branches, all with their unique characteristics. The most radical scholars attacked the social structure underlying law, whereas alternative scholars dealt with specific problems. Several interesting problems arose out of contract law in the 1970s that required new research methodologies and more dynamic argumentation to be dealt with appropriately. Consumer protection, standard contracts, and general clauses formed a fertile area in which to promote new insights. Alternative scholarship on contract law focused on the contemporary problems and advocated sociological methods in analyzing them. Problems were to be understood in their social context. Furthermore, scholars often took a stand on the potential policy change. Sociological jurisprudence and the protection of the underdog were the explicit catch-phrases of the alternative scholarship. Hence it was possible to participate in contemporary political debates, promote material equality and welfare, and point out the usefulness of the alternative scholarship. This was essential because their expertise and writings could then be used in political decision-making as well as in legal education.

400 Thomas Wilhelmsson, Sopimusvapaudesta, XI Oikeustiede ─ Jurisprudentia 9, 26–27 (1978). 401 Heikki Kulla, Sopimusvapauden perustuslainsuojasta, Oikeus 1/1976, 104. 402 Jyränki 1978, supra n. 195 at 75.

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6 Criticism and reform of legal education, 1968─1979

Legal education was an essential objective for critical legal scholarship because that was where the lawyers of the future were taught and where the theoretical scholarship was put to practical use. Legal education thus provides an overall perspective on critical scholarship. In the previous sections, we have seen the criticism of law and legal scholarship as well as the changes that occurred in legal research. The criticism of education and its reform in the 1970s will provide a point of view in which this all can be summarized and concluded. The 1960s were times of change, indeed. Various societal and legislative reforms took place, and the backward Finnish society was transformed into a modern, industrial society. The optimism in planning and reform also involved higher education, which was in a state of turmoil because of the massive expansion of the student population. At the mid-decade, the discussion about the need to reform the university intensified, and the government decided to initiate the reform.403 Students were also becoming anxious about the problems at the universities, and law students criticized the conservative nature of their education and called for a more socially oriented curriculum.404 In 1968, Jyränki wrote that to overcome the degradation of legal scholarship, legal education must change as well.405 By the end of the decade, the reform of legal education was in motion.406 The need to reform higher education in Finland was general, and the course of the reform followed well-worn paths. The actual reform of each individual discipline, however, was conducted individually, which meant that scholars at the academy had a considerable say in the process. The late 1960s was a time of radicalization of the Finnish universities as well as of legal scholarship. The manifestation of this radicalism was the occupation of the Old Student House in November 1968, an event in which even law students participated. The students had called for, among other things, democratization of the university administration and extension of the ideological basis of the curriculum.407 In 1969, radical law students founded the journal Contra to contribute to the alternative and critical insights on law, legal education, society, and politics.408 Radicalization of law students was a part of the change in atmosphere since, as noted, the late 1960s had in general been time of criticism of legal scholarship and activation of the alternative profession. Criticism of legal education became more intense in 1969, once the process of reform

403 Martti Häikiö, Tutkinnonuudistuksen taustaa: Järjestelmäkeskustelua ja tutkintoasetuksia, 13–14, in Martti Häikiö, Hannu Rautkallio, Paula Tuomikoski-Leskelä, Juha Vuorinen (eds.), Korkeakoulut ja tutkinnonuudistus (Helsinki: Werner Söderström Osakeyhtiö 1977), 12–29. 404 Korpiola 2010, supra n. 86 at 218–219. 405 Jyränki 1968, supra n. 59 at 890–891. 406 Kangas (ed.) 1998, supra n. 20 at 110–111. 407 von Bonsdorff 1986, supra n. 10 at 26–28; Tuominen 1997, supra n. 7 at 333. 408 Korpiola 2010, supra n. 86 at 170–186. The journal existed only for three years, and was closed down in 1971 because of financial problems.

324 had been initiated. Radical students and critical legal scholars often argued that law was the most conservative discipline and therefore in serious need of reform.409 The young scholars Aulis Aarnio and Matti Savolainen forwarded their proposal for reform in which social science had a strong position at the beginning of the course, but the proposal was quickly turned down.410 The arguments about the conservative nature of the legal education were not completely groundless, but scholars speaking for a more thoroughgoing change were facing a difficult task. The criticism of legal education and the process of reform were launched in the 1960s and the interview with the President Kekkonen in 1970 gave further impetus for a more thorough change in the basis of legal education. As we saw, the interview was conducted by legal scholars who favored critical and alternative views of legal scholarship, and with respect to education, the President once again supported their cause.411 He chided the law professors for their conservative attitude, arguing that students did not acquire a decent knowledge of social sciences or law in action.412 Kekkonen criticized both the traditional legal profession and education. Whether his arguments were influenced by the scholars who conducted the interview or not, they obviously had a significant impact on the course of the reform. The debates on the reform intensified at the beginning of the 1970s. There was unanimity about the need for reform but disagreement arose about its content and structure. Although the need to update study materials and to provide relevant contemporary lessons for the students was recognized,413 the precise purpose of the reform was the point of controversy. The criticism of legal scholarship was already widespread and intense, and the same arguments were advanced in the context of education. It was generally argued that law students needed more information about the social reality, as Matti Louekoski noted, and in order to achieve this he called for cross-disciplinary courses. He also opined that the freedom of the students should be increased.414 Ilmari Ojanen argued that contemporary education incorporated the dominant bourgeois ideology and was thus ideologically one-sided. Therefore, different social systems and ideologies had to be taught.415 Students had complained about the lack of social material and freedom for a couple of years, and as the alternative thinking spread among the legal profession, more scholars promoted these arguments. In accordance with the alternative scholarship, the reformist scholars argued that the methods of legal scholarship and its

409 Reijo Lehtinen, Nyt se alkaa, Contra 1/1969, 24; Juha Vikatmaa, Juristit yhteiskuntakeskustelussa, Contra 2/1969, 35; Pertti Lammi, Eräs asennetutkimus, Contra 4/1969, 26; Markku Uomola, Opintojen uudistuksesta, Contra 1/1970, 22–23; Patrick Zilliacus, Undervisning i juridik/politisk konservatism i misstag, Contra 3/1970, 20–23. 410 Aulis Aarnio, Vastahankaan: Muistikuvia (Helsinki: Siltala 2009), 362–363. According to Aarnio, the reason for the failure was the fact that they had quoted Mao Zedong on the cover of the draft, although the draft itself was in fact based on the Yale Law School curriculum. 411 On the interview in more detail, see section 2.2 above. 412 Kekkonen 1970, supra n. 72 at xii–xiii. 413 Aulis Pöyhönen, Missä viipyy oikeustieteellisten opintojen uudistus, Lakimiesuutiset 12/1970, 5–8. 414 Matti Louekoski, Eräitä näkökohtia oikeustieteellisen tiedekunnan tutkintojen uudistamisesta, Laki- miesuutiset 12/1970, 12–14. 415 Ilmari Ojanen, Oikeudesta ja oikeuden tekemisestä, Lakimiesuutiset 1/1971, 19–21.

325 relation to social values and ideologies had to be apparent in the courses. The idea behind the revision was to educate the students to understand the social significance of their profession. The task of revising the law school curriculum was far from simple, however. Aarnio criticized the pointlessness of the debates. According to him, since the reform had to begin from deliberation on what kind of jurists society needed, there was a need for a fundamental change in both the substance and structure of legal education. How- ever, non-legal material should not be over-emphasized.416 The traditional profession also recognized the need for reform, but wanted to maintain the basic aspects of traditional education and did not want to give too much stress to non-legal material,417 especially not wanting to include any ideological elements.418 A particular problem was procedural law, which the radical students and alternative scholars often regarded as the most conservative subject,419 some scholars thought about eliminating it as a separate subject and integrating it into other courses.420 This was unthinkable for the professor of procedural law of course.421 Procedural law was probably the most difficult course in law school and not very popular among the students.422 It is therefore no surprise that the junior faculty often suggested that it should be dropped as an individual subject.423 Although the reform was inevitable, the conflict between the traditional and the critical profession was pervasive. Everyone seems to have acknowledged the need for the “lawyers for the future”, but there was no consensus on what they might be like. The pressure to reform legal education was particularly pressing at the University of Helsinki, the capital of Finland. It had been the sole academy for legal education in Finland till the beginning of the 1960s, when another law school was opened in Turku. The purpose of the new school was to have a broader base for legal education, but the pressure from the practical profession watered down any noteworthy educational innovations.424 Nevertheless, a need was felt to revise the course at the University of Helsin- ki in order to maintain its prestige and modernity. In addition, since the poor situation of legal post-graduate studies had become evident in the lack of resources for research and education,425 the pressure of change was immediate. There was a large number of students demanding reform, and the transformation of society set new requirements for law and the legal profession. The times of change were obvious in the thoughts of the alter-

416 Aulis Aarnio, Ei ainoastaan muodoista…, Lakimiesuutiset 2/1971, 33–36. 417 P.J. Muukkonen, “Niissä on totta toinen puoli”, Lakimiesuutiset 1/1971, 8–9; Matti Ylöstalo, [an interview], Lakimiesuutiset 1/1971, 10–14; Edward Andersson, Opintojen kokonaisuudistus, Lakimiesuuti- set 3/1971, 4–8. 418 Andersson 1971, supra n. 417 at 5. 419 Allan Rosas, Prosessioikeuden opetuksesta, Contra 4/1970, 24–25. 420 Tapio T.J. Takki, Sananen prosessioikeuden asemasta yliopisto-opetuksessa, LM 1970, 942. 421 Jouko Halila, Prosessioikeuden asemasta yliopisto-opetuksessa, LM 1971, 153–156. 422 Korpiola 2010, supra n. 86 at 215. 423 See Lauri Hormia, Aineellinen oikeus ja prosessioikeus, LM 1971, 157. 424 Pöyhönen 1970, supra n. 413 at 5; Muukkonen 1971, supra n. 417 at 8. 425 Kangas (ed.) 1998, supra n. 20 at 84–89.

326 native and critical legal scholars, who considered themselves as the representatives of future legal scholarship. As was society, the university was in a turbulent situation in the early 1970s. Stu- dents had been a major motor of the radicalism of the 1960s, and the division between the traditional world-view and the new, radical one was seen at the faculty level as well. Young radical scholars considered traditional scholarship and university administration as reactionary and conservative, supporting the bourgeois hegemony and capitalist mode of production. At the beginning of the 1970s, then, the university was divided between the traditional and the radical bloc,426 and the controversies over academic power were manifested on many occasions. The radicals criticized the politics of tenure nominations for their secrecy and conservative nature,427 and academic research was criticized for its commercial dependence and lack of responsibility. Critical scholars opined that scholarship should be independent and focus on relevant social problems.428 The academic conflict over the methods and policies of research was obvious in the two simultaneous research projects on democracy and equality. Whereas DETA represented the traditional research, the TANDEM project represented the critical and radical thought. It approached the causes and consequences of social inequality from the Marx- ist perspective in order to demonstrate the deficiencies of Finnish society. Needless to say, the traditional bloc criticized the research for its one-sided, ideological point of view.429 It was evident in the conflict that every aspect of academic life was colored by the conflict over traditional and alternative points of view. The radical students who were among the most enthusiastic reformers of the university also criticized the capitalist education ideology and wanted to increase critical thinking and freedom of scholarship.430 With respect to law, they conformed to the ideas of the alternative scholars and the Association of Democratic Lawyers.431 The rise of Marxism and critical scholarship both followed and contributed to the controversies at the university. They represented the critical thinking that, according to the radical scholars, transcended the bourgeois hegemony and provided an alternative perspective on social structures, institutions, and consciousness. This all-encompassing conflict took more or less radical forms, but it was everywhere. Alternative scholars sought to modify the tradition, whereas radical scholars wanted to abandon it. With respect to the university administration, critical scholars wanted to open up the old hierarchies and increase

426 Kari Immonen, Suomen akatemia suomalaisessa tiedepolitiikassa 1970-luvulla (Helsinki: Otava 1995), 237–246. 427 Antero Jyränki, Yrjö Littunen, Eino S. Repo, Miten professoria tehdään: Kiistakirjoitus akateemisesta nimitysjärjestelmästä (Helsinki: Otava 1971). 428 Kettil Bruun, Katarina Eskola, Matti Viikari (eds.), Tiedepolitiikka ja tutkijan vastuu (Helsinki: Tam- mi 1975). 429 Immonen 1995, supra n. 426 at 174–188, 210–237. The TANDEM project is summarized in Demokra- tian rajat ja rakenteet: Tutkimus suomalaisesta hallitsemistavasta ja sen taloudellisesta perustasta (Juva: Werner Söderström Osakeyhtiö 1977). 430 SOL:n taisteluohjelma Suomen opiskelijoille (Helsinki: Kirjapaino Kursiivi 1973). 431 Id. at 149.

327 democracy in decision-making and independence in research. The split within the university was pervasive, which was obvious in the reform of legal education. This reform took a step forward in 1973 when the reform committee published its report. The committee had worked from September 1971, and more than twenty people had worked in it, including Aulis Aarnio, Raimo Blom, Olavi Heinonen, Antero Jyrän- ki, Lars D Eriksson, and Kaarlo Tuori.432 Alternative and critical scholars were well represented on the committee, which was apparent in its work. The committee spent over three hundred pages in analyzing the status of legal education. In short, it explained that one purpose of higher education was to train critical thinking. Since concepts, theories, and methods were often based on values, law students should be made aware of the connection between law, legal scholarship, and society, as well as critical of it. There- fore, the committee proposed courses in social science and general jurisprudence in the first semester, as well as a new subject division in which subjects were classified and named in accordance with the social problems the law regulated. Procedural law as an individual subject was removed and integrated into the other courses.433 The proposal for reform complied with the critical and reformist side of the academy and thus conformed to the agenda of alternative and critical legal scholarship. Since it would have been a considerable change, it was no surprise that the traditional profession rejected it quite bluntly. Traditional scholars, judges, and lawyers were unanimous that the new subject division was disorganized and meant a serious break in an international tradition.434 Furthermore, the traditional profession was also unanimous that the committee had over-emphasized social material at the expense of legal material.435 The professor of procedural law, Tauno Tirkkonen, argued that the committee was ideologically one-sided and that it proposal would lead to fragmented and impractical courses which would be very difficult to realize.436 The gulf between the traditional and the critical perspective on law was obvious in the reception of the report, and the most essential reforms were thus immediately shot down. The scholars behind the reform were obviously promoting their academic interests, as well as reflecting the trends of the time. Although they did not alter the basis of legal education, but rather adjusted it to suit the interests of alternative scholarship, the

432 Oikeustieteellisten opintojen uudistuskomitean mietintö, 1973:30, 3–4. The composition of the committee changed in the course of its work. 433 Id. at 29–50, 150–205. The new subjects proposed by the committee were organization and function of public authorities, financing of public communities, legally punishable behavior, family, relations of production and exchange, labor, and the physical environment of people. 434 Lassi Kilpi, Oikeustieteellisten opintojen uudelleenjärjestelystä, LM 1974, 668–669; Korkeimman oikeuden lausunto oikeustieteellisten opintojen uudistamiskomitean mietinnöstä, LM 1974, 695–696; Korkeimman hallinto-oikeuden lausunto oikeustieteellisten opintojen uudistamiskomitean mietinnöstä, LM 1974, 700–701; Suomalaisen Lakimiesyhdistyksen lausunto oikeustieteellisten opintojen uudistamiskomitean mietinnöstä, LM 1974, 704─705, 707–708. 435 Arvo Helminen, Opintouudistus vanhan juristin näkökulmasta, LM 1974, 676–678; Kilpi 1974, supra n. 434 at 664–666; Risto Piepponen, Oikeustieteellisten opintojen uudistaminen elinkeinoelämän kannalta, LM 1974, 682; Suomalaisen lakimiesyhdistyksen lausunto 1974, supra n. 434 at 704–706. 436 Tauno Tirkkonen, Eräitä mietelmiä oikeustieteellisten opintojen uudistamiskomitean mietinnön johdosta, LM 1973, 637–654.

328 proposal for reform deviated from the tradition too far to be uncritically accepted. The traditional profession was aware of their professional prestige and was therefore hesitant to accept any such thoroughgoing changes, even if the proposal merely broadened the basis of education and did not turn it into ideological preaching. For the traditional profession, legal rules and principles were more important to the jurist than social data. Despite the reformist character, the report was a compromise between alternative and traditional insights. Its main focus was still on the education of a jurist, even though the structure of the curriculum was revised and non-legal material was increased. Radi- cals thus criticized it for not being reformist enough.437 Bruun, on the other hand, noted that the report was simply a proposal for a reform that was to be realized in practice, and he worried that the reform would be torpedoed because the law faculty and the profession were against it.438 The opposition to the reform was fierce, so the worries about it being watered down were not unfounded. Therefore, too, the committee could not have seriously made any more a radical proposal. General trends followed the politics of the time, but the legal profession at large remained loyal to the tradition. The final say in the execution of the reform was left to the faculty, which in general was not especially well-disposed towards alternative scholarship. The conflict between the traditional and the alternative factions of the faculty became apparent in 1975 with a conflict over a text book. Several alternative scholars had participated in writing the book, which was meant to be used in the admission tests. The authors included Blom, Eriksson, Jyränki, and Tuori.439 The authors stated that legal rules were contingent, emanating from material social relations, and that their ultimate purpose was to preserve the existing social power structures. Furthermore, the role of discretion and interpretation were emphasized in judicial decision-making.440 In many ways, the book was a summary of alternative legal scholarship. Its disposition complied with the new subject division proposed by the legal education reform committee, and its substance conformed for the most part to the alternative and critical insights. It gave a realistic, or critical, perspective on law and legal scholarship and often stressed the alternative views and arguments. Legal rules were often in the background and the emphasis was on the social functions of law. The faculty, however, rejected the book, which was divided into two parts in the hope that at least the second part, which was much less critical than the first, would be accepted. Eventually, however, both parts were turned down, which naturally upset the authors.441 The book was a continuation of the series of legal text books with the alternative approach that had been published during the 1970s in criminal,442 constitution-

437 Mäenpää 1973, supra n. 114 at 7–8. 438 Niklas Bruun, Opintojenuudistus tienhaarassa, Oikeus 1/1975, 37–40. 439 Aulis Aarnio, Olavi Heinonen, Kaarlo Tuori (eds.), Suomen oikeus 1–2 (Helsinki: Tammi 1975), 16. 440 Id. at 21–65. Because so many scholars had participated in the writing, not all the parts of the book were especially critical. Nevertheless, its major character was alternative to the traditional text book. 441 Aulis Aarnio, Olavi Heinonen, Kaarlo Tuori, Suomen oikeudesta, Oikeus 1/1976, 46–48. 442 Anttila & Heinonen 1971, supra n. 305; Anttila & Heinonen 1972, supra n. 316; Anttila, Heinonen, Koskinen, Lahti 1974, supra n. 294; Anttila & Heinonen 1977, supra n. 318.

329 al,443 and family law,444 for example. Many of these had been included in the law school requirements but here the faculty drew the line. A general introduction to the legal system meant to be used in admission tests must have been too much because of its significance for the law students. Besides the rejection of the book, the reform was going down in other ways as well. The Association for Legal and Social Sciences complained that the faculty had markedly reduced the books on philosophy, history, and society in the general phase of legal studies.445 The ambitious reform was coming to a halt as it faced the educational realities. Legal tradition could not have been changed in a short time, and traditional scholars were still the majority in the faculty. The viability of alternative scholarship was tested when the reform was taken from principle to practice. At the end of the decade, the intense debates over legal education began to fade. The reform was being executed and scholars still disagreed over the details, but the major course was determined and the demagogic criticism was losing its impetus. Once the hero of alternative legal scholars, Kaarle Makkonen, who over decade before had rejected the traditional ideas on legal reasoning, was now speaking for a more traditional education. He argued that superficial knowledge of theory and philosophy would not be of much practical use or interest to the students, and therefore the amount of non-legal material should be kept to a minimum.446 Toivo Holopainen also noted that since students needed practical skills, legal rules should be the core of education.447 Klami, on the other hand, defended the position of legal history,448 and also argued that education should focus on the goals and consequences of law.449 Although the struggle over education was not completely over, the majority of the profession had realized that legal education was brief and that its major purpose was to train lawyers, and that it was not possible to include much extra-legal material in the curriculum. Even if the social sciences in legal education were not criticized per se, their impracticality had been widely recognized. As was the case in the general criticism of jurisprudence, the problem was also about the nature of the social relations of law. For Eriksson, the struggle over the reform was like whistling in the wind since the traditional scholars could not understand the point. He criticized Makkonen and Holopainen for promoting a legalist and extremely positivist view on law that neglected the ideological use of rules and did not train the students to assess the relationship between law and society critically.450 Holopainen responded that the emphasis on rules did not mean extreme legalism but simply the

443 Jyränki, Perttunen, Vilkkonen 1972, supra n. 196. 444 Saarenpää, Mattila, Mikkola 1972, supra n. 374; Helin 1974, supra n. 383. 445 Opintojen yleisvaiheen suunnittelu: Oikeus- ja yhteiskuntatieteellisen yhdistyksen lausunto, Oikeus 3/1976, 137–138. 446 Kaarle Makkonen, Ns. yleisteoreettiset aineet oikeustieteen kandidaatin tutkinnossa, LM 1977, 307– 309, 312–315. 447 Toivo Holopainen, Normin mukaista vai tavoitteiden suuntaista, LM 1977, 639. 448 Hannu Tapani Klami, Oikeushistorian asema oikeustieteen kandidaatin tutkinnossa, LM 1977, 822– 824, 828–829. 449 Hannu Tapani Klami, Oikeustieteestä, LM 1977, 359–364. 450 Lars D. Eriksson, Kamp mot väderkvarnar, Oikeus 1/1978, 3–5.

330 practicalities of the profession,451 but for Eriksson, this view did not pay due attention to the ideological justification of law.452 To the critical scholars, the problem was not simply about interpretation or discretion, but rather about the factors behind them. In their view, legal reasoning and decision-making always promoted some further goal that was unseen in most situations, which was why law had to be critically analyzed. This point of view, however, was in such radical conflict with the traditional perspective, that it did not have a chance even in the political atmosphere of the 1970s. Legal education was reformed before the end of the 1970s. It has been argued that the reform succeeded in general quite well in Helsinki, although many of the younger scholars were displeased with the fact that the extra-legal material was not increased as much as expected, and although students were divided on the issue.453 The structure of the education changed and materials of philosophy and social sciences were added to the first year of the studies. Some of the alternative text books made their way into the requirements, but the substance in general remained rather traditional.454 In the end it seems that the reform was tamed because of practical problems. Criti- cal scholars often had overly radical ideas without considering how they would function in practice. Scholars who reviewed the reform immediately after its execution noted that the criticism of the traditional education and the proposals for reform concentrated too much on the goals without paying enough attention to the methods of achieving them,455 and that the goals were too ambitious.456 The faculty also wanted to maintain the traditional subject division, and had to give up on many reforms because of lack of resources.457 Some of the reforms were too radical for the traditional profession to accept, while others failed because of the educational realities. The reform was not a complete failure, but for many alternative scholars, and especially critical scholars, it was disap- pointingly moderate. The struggle over legal education lasted for a decade and ended in a compromise based on traditional thought. The problems regarding legal education were acknowledged in the late 1950s, and the discussion on reform began. In the 1960s, students complained about the education and the government deliberated on the general course of reform of the university, which was also initiated. Reformist scholars began to argue for a more thorough alteration of the form and substance of the law school curriculum in the late 1960s, and the interview with the President gave the final push to the debates. The reform committee, which was manned mostly by young, reformist people, proposed

451 Toivo Holopainen, Taistelusta tuulimyllyjä vastaan, Oikeus 3/1978, 183–185. 452 Lars D. Eriksson, Med anledning av ovanstående muller, Oikeus 3/1978, 186. 453 Korpiola 2010, supra n. 86 at 222–223. 454 One can see this by comparing the study guides of the law school of the University of Helsinki between the early and late 1970s. 455 Kauko Wikström, Piirteitä viimeaikaisesta oikeustieteellisestä keskustelusta Suomessa, LM 1979, 467. 456 Heikki Halila, Eräitä oikeustieteellisestä tutkinnosta annetusta asetuksesta aiheutuvia ongelmia, LM 1980, 425, n. 16. 457 Edward Andersson, Oikeustieteiden tutkinnonuudistuksen tausta ja toteuttaminen, 46–47, in Häikiö et al. (eds.) 1977, supra n. 403 at 44–51.

331 relatively major changes in the curriculum, but these were moderated in practice. Legal education was reformed but not to a major extent. The criticism of legal education shows the magnitude of alternative and critical legal scholarship and its connections with university politics and research in the 1960s and 1970s. With respect to legal education, alternative and critical scholars naturally endorsed the insights they had on law and sought to promote them in the curriculum. They argued, alongside the radical students, that the connection between law and society should be critically analyzed, the ideological basis of education ought to be exposed, and more materials on social sciences and philosophy should be included. These were the arguments the scholars advanced in their particular subjects. Education was the field where scholarship could be put to practical use and where its academic significance was partly determined. The question was also about the power over scholarship and administration at the university. The alternative bloc was against the traditional hierarchies and politics of research which they wanted to dethrone and replace with their own ways. Critical legal scholarship thus involved several aspects of the 1960s and 1970s. And although it reflected the reformist spirit of the time, its ideas were not to be inserted into legal education without compromises, since its perspective on law deviated fundamentally from that of the tradition.

7 Alternative legal scholarship at the end of the 1970s: From radical criticism to alternative analysis of law

The time from the late 1960s to the last quarter of the 1970s was a continuing battle over the dominance of jurisprudence. Critical scholars fought to strip the credibility and viability from traditional scholarship. At first, critical legal scholarship had been pas- sionate trashing of the traditional methods of scholarship and conceptions about law, and later it matured into more theoretical and sophisticated literature. Besides scholarship, the criticism also concerned the corner-stones of the Finnish legal system, such as the Constitution, the judiciary, criminal law, and legal education, which were all under pressure of change, as the critical scholars manned the reform committees and worked towards a radical alteration of the law. The late 1970s, however, marked a period of change. Society was becoming more conservative, the optimism in the welfare state was waning, the conflict between labor and capital became less pronounced, and student radicalism was fading. Despite the intense criticism, many things were either the same or had changed but not as much as the critics had hoped for. At the end of the 1970s, critical legal scholarship was facing new problems. The critical enterprise had not been a failure, however, for Finnish legal scholarship had been transformed to some extent. Empirical material and value-based analysis were typically excluded in traditional scholarship, but the heated debates on jurisprudence and the changes in the policy of scholarship and research had encouraged alterna-

332 tive approaches in legal scholarship. In addition to the studies on criminal law,458 collective agreements,459 and unemployment benefits,460 which were obvious expressions of alternative and critical legal scholarship, methodology and perspective changed in the more traditional scholarship as well. Matti Niemivuo applied an historical, empirical, and realistic approach in his study on the state subsidies,461 criticism of ideology and a sociological approach prevailed in Timo Konstari’s treatise on the publicity of documents in the state administration,462 and the study by Kirsti Rissanen on trademarks was clearly cross-disciplinary.463 Kauko Wikström’s analysis of legal reasoning was an attempt to revise legal realism in Finland as well as the criticism of analytical jurisprudence,464 and there was still interest in analyzing the “scientific” basis of legal scholarship and its potential as an empirical science.465 As the various treatises at the end of the decade show, alternative legal scholarship had become practically a commonplace in Finnish jurisprudence. Several textbooks with an alternative approach had also been published and included in the law school curricula. The waning of critical legal scholarship, on the other hand, was seen in the text-book on constitutional law, where the radical second edition had been revised in 1979 to create a far more traditional book.466 The methodological basis of legal scholarship had broadened nevertheless. Empirical analysis was now more common and doctrinal analysis less dominant, although it was still the most common form of legal scholarship. Alternative legal scholarship had become less of an “alternative” and more of a sub-paradigm. Critical legal scholarship, then, had to find new ways to revive its relevance in the ever-changing social and academic atmosphere. The optimism in social planning and reform had faded significantly by 1978, when scholars contemplated their achievements in legal policy in a symposium on the “change of the legal policy”. By then, the debates on legal policy had faded to a large extent, and alternative scholars disagreed on their consequences. They noted that the three most important aspects of the critical debates of the 1960s and the 1970s were the criticism of legal scholarship and education, the reconsideration of the Constitution, legislation, and the courts, and the revival of the Association of Democratic Lawyers,

458 Backman 1976, supra n. 168. 459 Bruun 1979, supra n. 365. 460 Mikkola 1979, supra n. 367. 461 Matti Niemivuo, Valtionavut kunnille ja kuntainliitoille: Oikeustieteellinen tutkimus valtionapuinstituutiosta julkisten palvelujen, erityisesti perus- ja keskiasteen koulutuksen määrällisen sääntelyn keinona (Helsinki: Suomalainen lakimiesyhdistys 1976). 462 Timo Konstari, Asiakirjajulkisuudesta hallinnossa: Tutkimus yleisten asiakirjain julkisuudesta hallinnon kontrollivälineenä (Helsinki: Suomalainen lakimiesyhdistys 1977). 463 Kirsti Rissanen, Kilpailu ja tavaramerkit: Kilpailunrajoituslainsäädännön soveltaminen tavaramerkin yksilöimiin järjestelyihin (Helsinki: Suomalainen lakimiesyhdistys 1978). 464 Kauko Wikström, Oikeuskäytännön tulkinnasta: Erittely oikeusnormien soveltamistoiminnasta esitet- tävien väitteiden teoreettisista perusteista ja oikeuskäytännön rakenteesta (Helsinki: Suomalainen lakimiesyhdistys 1979). 465 Juha Pöyhönen, Oikeusteoria, yhteiskunta ja yhteiskuntatieteet, Oikeus 1/1979, 41–51. 466 Compare Jyränki, Perttunen, Vilkkonen 1972, supra n. 195 with its fourth edition of 1979.

333 but the actual reforms had been moderate, and now the criticism was muted.467 The legislative reforms of the 1970s were respected although some were disappointed with their inadequacies, as well as with the current state of the legislation.468 In the symposium, the fact that the scholars still endorsed alternative scholarship and political activism but the society around them had changed was revealing. In spite of the changes in the social atmosphere, some things were the same. Rai- mo Blom, for example, continued his empirical analyses on the impartiality of the administration of justice. He had been unable to point out any systematic discrimination in the criminal process, yet he still argued that it existed at every stage of the process and thus produced inequality in the administration of criminal justice.469 The fact that more people refused to reply to his survey studies in the changed situation because they thought that the study was prejudiced against the legal system and social order of Fin- land was revealing, however. One person, for instance, replied that “I did not reply because a study that clearly aims at a predetermined and ready-made goal is not science to my knowledge, but rather a badly concealed promotion of the ideological purposes of the scholar,” and another one commented that “I have talked with about twenty people who have all received your letter, and without exception each and every one of them has been of the opinion that once again the legal and social order of Finland is under attack.”470 The radical attack at the late 1960s was still in the minds of the legal professionals, and they did not want that to happen again now. Critical legal scholarship had obviously irritated the majority of the profession despite reactions to it being few. The traditional profession tried not to be bothered by it, and traditional scholars responded whenever they felt a need for it. The colorful decade and a half that had passed had left a mark on the profession, and at the end of the 1970s, it wanted to go back to normalcy. Critical legal scholarship was going out of fashion but it was not over. As the ideological enthusiasm of the 1960s had turned towards the realities of the late 1970s, Eriks- son recalled the need for thorough discussion about the fundamental principles of law and the legal system, lest the noble ideas be buried under bureaucracy and technical corrections.471 As the decade approached its close, however, the tone had changed. In the opening to the first issue of Oikeus in 1977, he wrote that the political atmosphere had changed and the time of total reform was over. Now it was time to consider the possibility of change and to develop a new kind of legal argumentation.472 Many things had indeed changed. The optimism over the welfare state had dissipated and society in general had become more conservative. Besides the moderation of politics, there was a

467 Oikeuspolitiikan murros, Oikeus 4/1978, 196–198. 468 Id. at 199 [Nikula], 201 [Lång]. 469 Raimo Blom, Rikostuomiot ja Suomen tuomioistuinlakimiehet (Tampere: Tampereen yliopisto 1979), 22–26, 61–86, 98–128, 170–184. 470 Id. at 298. Translations mine. 471 Lars D. Eriksson, Begravas reformerna? Lakimiesuutiset 3/1971, 15–16. 472 Lars D. Eriksson, Oikeus 1/1977, 3–4 [untitled introduction].

334 strong rightist trend in student politics.473 The great plans to reform the constitution, criminal law, and legal education were over; while the first had been temporarily halted, the second was split into various partial reforms, and the last was receiving its final touch with a compromise between conservative and radical opinions. And although methodologies had expanded and arguments had become more flexible, Finnish jurisprudence was still mainly normative. Radicalism was over but alternative legal scholarship was alive and kicking. Eriksson’s opening is illustrative of the jurisprudential situation of the latter half of the 1970s. The radicals of the 1960s had grown and found jobs in the administration or at the universities, and their time was now consumed by their responsibilities. Their youthful enthusiasm for radical criticism had dissipated, their theoretical sophistication had grown, and their world-view had become less idealistic. Moreover, as the time in general had become more conservative, students were not all that interested in critical scholarship. The age of radical criticism was over, and alternative legal scholarship had to find new ways to maintain its viability without repeating the old ideas or being absorbed into the mainstream. Alongside the changed circumstances, Eriksson’s opening also referred to his article in the journal. The focus of critical scholarship thus moved from general jurisprudence and the Constitution toward legal argumentation in practical cases. In the late 1970s, Eriksson was the scholar who most enthusiastically elaborated new thoughts of critical and alternative legal scholarship. In the pursuit of developing an alternative model for argumentation, he found new influences from Italian jurisprudence. He re-stated that legal rules withheld value choices, adjudication was political in the last resort, law was not autonomous, and that the traditional doctrine on the separation of state powers did not correspond to reality. The new element in the theory was, however, that these points were to be linked to judicial decision-making, which was to be based on the sovereignty of the people. The political nature of adjudication was to be recognized, and the courts were not to become guardians of the ruling class. By contrast, law was to be adjusted to reality in order to promote equality.474 This could be seen as the beginning of the Finnish alternative analysis of law, although similar arguments had been put earlier in the 1970s. Nevertheless, the purpose here was to provide models of argumentation and interpretation of law which would promote material equality. The idea of the alternative jurisprudence of the late 1970s was that social equality could be promoted through argument in actual cases instead of pursuing fundamental changes in the Constitution. Eriksson’s theory was also a fore- runner in the application of Italian legal theory in the Finnish and Scandinavian contexts. By noting that alternative solutions could be made by a non-traditional mode of

473 Marja Järvelä-Hartikainen, Några anteckningar om student-rörelsens historia i Finland, HfKS 3/1977, 79. 474 Lars D. Eriksson, Magistratura democratica och den italienska juristoppositionen, Oikeus 1/1977, 37– 43.

335 reasoning, the purpose was to elaborate a theory of reasoning that could transcend formalism without any radical alteration. The times also required changes in adjudication. Eriksson noted that fundamental rights had become important and that courts were their main executors and protectors. Because legal problems often concerned conflicts of interest which required being weighed against each other, the traditional forms of reasoning did not correspond with the reality. This required frank consideration of values, interests, and goals in judicial decision-making, as well as integrating the courts more closely with society.475 Alt- hough the reform of the judiciary still lurked within the article, the main point was in the alteration of legal argumentation. Since the rights of the citizen had become critical in law and society during the 1970s, it was important to attend them in legal theory because, it was argued, the execution of rights could not be left to logic but required a comprehensive understanding of the situation. Indeed, a new model of legal argumentation was needed to solve the complex problems of modern society. Eriksson had also noted the Scandinavian debate on the distinction between legal rules and principles, as well as Dworkin’s formulation of the problem.476 He argued that to understand the dynamics of legal argumentation, one had to be familiar with its historical dimensions, because legal ideology and culture restricted the margin of error. It was important to consider what circumstances were relevant in the case. In this regard, Eriksson provided a goal-rational model of argumentation in which the judicial decision-maker took the goals of law as well as the goals and needs of the parties to the case into account. The purpose was to decide legal cases according to a comprehensive assessment of the relevant data and the consequences of the decision.477 Eriksson’s alternative analysis developed greatly in a couple of years. By following the debates on legal principles, he could find a method of flexible legal reasoning in which all the relevant issues could be taken into account, and where the decision could be based on consideration of consequences and policies. In general, then, alternative legal scholarship was moving from radical criticism towards alternative analysis of law and legal argumentation. The basic themes were still the same, but the radical enthusiasm had changed into theorizing on more practical matters. The basis for alternative analysis was laid in the late 1960s and early 1970s. Now, however, the older critical scholars were elaborating new theories as were the younger scholars, who were not particularly Marxist albeit influenced by it. Alternative legal scholarship had become widespread and accepted in the 1970s, although the radical

475 Lars D. Eriksson, Domstolarnas förändrade roll, 58–64, in Juhlajulkaisu Paavo Kastari (Helsinki: Suomalainen lakimiesyhdistys 1978), 55–66. 476 On the Scandinavian debates, see Chapter IV section 6.6. 477 Lars D. Eriksson, Om olika argumentationsmodeller, JFT 1979, 25–26, 35–36, 42–44. Eriksson referred to a U.S. Supreme Court decision, Regents of University of California v. Bakke, 438 U.S. 265 (1978), which dealt with affirmative action. The Court did not approve racially based quotas as such, but it did approve race being taken into account in some cases as a criterion for admission to university if it was meant to promote the equality of minorities. Eriksson referred to that case because he saw that it might provide reasons for affirmative action in Finland regarding the Swedish-speaking minority.

336 claims were never approved. The critical debates had contributed to the rise of methodological eclecticism and balanced realism in jurisprudence. Despite the fact that the focus was on a new style of argumentation, there still was a need for thorough changes in legal scholarship. For example, the emphasis on values and policies in legal scholarship and practice was evident in the Mikkola’s treatise of 1979. He encouraged examination of the values within law as one aspect of legal scholarship because a critical inquiry into the values was considered necessary in order to contemplate reform.478 The theory was a combination of traditional and alternative legal scholarship, because the social problems of the 1970s still required an analysis of the policies that lurked behind law and thus also influenced legal practice. Alternative legal scholarship had long pursued a comprehensive image of law in society, and various studies had opened up various parts of the legal system, but a major theory of critical legal scholarship was still lacking. Eriksson was also reaching the point where he could synthesize his ideas into a comprehensive theory. There was a need to reconsider the basis of legal scholarship because, as he argued, the positivism that dominated Finnish jurisprudence ignored the values which nevertheless played a significant role in adjudication. This drive towards rationality in scholarship, however, led to irrationality in judicial decision-making. The connection between social interests and the legal system was to be analyzed because it was the only way to criticize and develop law in the struggle for equality.479 Eriksson had worked on critical legal theory for over a decade, and his philosophical sophistication as well as his familiarity with Marxism had increased greatly during that time.480 By the end of the 1970s, the time was ripe for a Marxist theory of law that would meet the needs of both scholarship and practice. Eriksson defined these fundamentals in an article in 1979 in which he sketched the context for a more comprehensive theory. Law, he argued, was both a means of directing social behavior and an ideology for social structures, and Marxist legal scholarship sought a thorough understanding of society and law. The focus of legal scholarship was legal reality, meaning the various ways law was used as a social tool as well as the complex relationship between law, politics, and the economy.481 The purpose was thus not to analyze law but its actual functions in society. There was also a practical function. Legal argumentation was also important because social structures and ideology defined its rationality. Therefore one should study the possibilities between the “is” and the “ought” of judicial decision-making in order to emancipate it from its ideological boundaries.482 Marxist legal scholarship set out to reveal the reality of law both as a system and in action, and to analyze the poten-

478 Mikkola 1979, supra n. 367 at 6–36. 479 Lars D. Eriksson, Lakipositivismi ja oikeuspositivismi, Tiede & Edistys 1/1978, 45–50. 480 Eriksson has explained in his own words the development of his critical theory in Lars D. Eriksson, Den kritiska teorins utvecklingsgång: En sen Egotripp, in Kjell Å. Modéer & Martin Sunnqvist (eds.): 1968 och därefter: De kritiska rättsteoriernas betydelse för nordisk rättsvetenskap (Københavns Universi- tet: Museum Tusculanums Forlag 2010), 99–114. 481 Lars D. Eriksson, Utkast till en marxistisk jurisprudens, Retfærd 11/1979, 40–42. 482 Id. at 42–52.

337 tial for reform. In this sense, jurisprudence served not merely the needs of theory or legal practice but also the needs of political change. In 1980, Eriksson summarized his theory in his doctoral dissertation, which consisted of thirteen articles published in 1966–1979 and a summary part of one hundred and thirty six pages in which he adumbrated the theory of Marxist legal scholarship.483 There was, however, a problem. The University of Helsinki did not want to approve it because it was not a typical dissertation but a collection of articles and a summary. Thus, Eriksson decided to defend his thesis at the University of Turku which had a record of producing dissertations on legal philosophy and theory.484 The fact that the Uni- versity of Helsinki declined to grant permission to defend the thesis probably does not say much about the state of jurisprudence at that time or that there was some kind of hostility towards Marxism. It seems that the University wanted to maintain its standards on doctoral thesis, which were conservative to an extent. In any event, Eriksson’s thesis was approved in 1980, the first systematic analysis of Marxist legal scholarship in Finland. The premises of the theory were those that had been emphasized for a decade; now they were presented in a more systematic and sophisticated fashion. According to Eriksson, the purposes of Marxist legal scholarship were to seek structural connections and conflicts within law, reveal its interest-bound nature, and present emancipatory alternatives. It investigated the tendencies of the development of law in its historical, political, and social context. And while recognizing the relative autonomy of law and legal scholarship, the main focus was on their social connections.485 In its historical-materialist sense, Marxist theory perceived law as a social construct for particular purposes, which were to be analyzed. Through this kind of research one could obtain a realistic image of law in order to proceed to the next phase which was the critical analysis of law in action. The purpose of the critique of ideology was to show how ideology masked the real relations and restrained practice. Critical analysis of law redefined the traditional legal concepts, such as freedom and equality, and reconsidered their meaning and purpose in contemporary society. The ultimate goal was to create a sketch for the concept of justice, which was always linked to society. In this sense, legal scholarship was practical activity on practical cases.486 Marxist legal scholarship was not merely criticism of law, but was critical analysis of law in action, searching for alternatives for the contemporaneous law. It also sought to demonstrate that the gap between law in books and law in action followed a purpose and then to reveal that purpose. The argument that legal concepts masked and legitimized this gap was fundamental; concepts had to be reconsidered and re-defined. Just as the critical legal scholars in the United States argued that law protected certain values which could have been something else just as well, the

483 Lars D. Eriksson, Marxistisk teori och rättsvetenskap (Helsinki: Juridiska föreningens i Finland publi- kationsserie Nr 48 1980). 484 Aarnio 2009, supra n. 410 at 278–279. 485 Eriksson 1980, supra n. 483 at 1–4, 33–37, 65–75. 486 Id. at 75–95, 106–107, 114–132.

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Finnish Marxist legal scholarship pointed out that legal concepts protected the values and interests of capitalist society, although they could protect some other values as well. The emancipatory and alternative aspect of critical legal scholarship was to point out the ideological limitations of law, of which people often were unconscious, and then to demonstrate that law could be something else. Eriksson’s thesis was indeed the most systematic and comprehensive demonstration of the practical use of critical legal scholarship in Finland thus far. It also marked the culmination of the alternative analysis of law,487 which created the basis for the later alternative legal scholarship. At the beginning of the 1980s, the demagogic criticism was over and the alternative scholars of the previous twenty years were either working outside the academy or making a career in it. In the latter case, their aging and their mounting academic responsibilities forced them to do something else besides criticize. Eriksson’s dissertation is a perfect example of turning a long career of critical scholarship into a systematic piece of legal theory. Meanwhile, critical scholars had to find new inspiration. Time and the generation had changed, and new trends were ahead. Legal scholarship had changed, but not markedly. However, critical legal scholarship was not over. The new decade proved to be a good time for it although in a different way than before.

8 Conclusions

8.1 A historical perspective on critical legal scholarship

As I noted in the previous chapter, I applied the analysis of the history of CLS on the history of Scandinavian critical legal scholarship, because it reflected the same issues and involves the same problems. In this section, I will apply that same analysis to the Finnish critical legal scholarship for the same reasons and because there is no research on the subject. In the following, I will point out that various aspects have to be included in this history, and that it should not be reduced simply to one factor. Finland experienced a relatively late but radical debate on the nature and purposes of legal scholarship in the late 1960s. In the middle of the decade, Finnish jurisprudence was already in a state of change. The old conceptualism was being pushed aside, the analytical school was gaining ground, and legal scholars began to pay more attention to the particular meanings of legal concepts. The analytical school reflected realism in its criticism and analysis of legal concepts, but it was not particularly realistic regarding

487 “Alternative legal scholarship” in Finland usually means that form of legal scholarship that Eriksson developed in the late 1970s and early 1980s (see Eriksson 1977, supra n. 474; 1978, supra n. 475; 1979 supra n. 477; 1979, supra n. 481; 1980, supra n. 483). I refer to it as alternative analysis of law, since alternative legal scholarship means the non-traditional legal scholarship in general in this study.

339 judicial decision-making. The Finnish legal scholars were aware of judicial discretion and the personal input of the judge in the decisions, but these were not emphasized, and legal theory in general tried to minimize the impact of extra-legal factors and present legal reasoning as being as rational and neutral as possible. The later analytical school brought aspects of hermeneutics and linguistic philosophy into the picture and focused on the verbal phrasing of legal rules. However, the formalist elements of legal reasoning were important and the attention was given to legal rules and principles. Moreover, the majority of the profession remained more or less loyal to the traditional conceptualism. It was this relative formalism and conceptualism which the critical scholars attacked. Critical legal scholarship emerged in the latter half of the 1960s, and developed within a few years into a critical front of legal scholars. Legal discretion and interpretation were well known facts, but Eriksson began to focus on the utter indeterminacy and the structural biases of legal reasoning. Eriksson’s criticism of legal reasoning was soon accompanied by the sociological approaches of Jyränki and Kivivuori, who worked on the gap between law in books and law in action and sought to demonstrate the irrele- vance of traditional scholarship. According to them, legal scholarship needed a broader methodological basis and openness on the values and policies that were inherent in law. Jyränki took this direction during the 1960s, and by the end of the decade, he declared the rebellion on methods. Kivivuori, on the other hand, pursued a behavioral account of law. The turn of the decade then witnessed the transformation of the alternative and critical legal scholarship into a mood of legal scholarship that sought to replace the tradition. The interview with the President of Finland gave an impetus to the debates on law and legal scholarship. The interview was indeed a curious case. As we saw, critical legal scholars drafted the questions and prepped the President, whose answers then complied precisely with their critical agenda. The critical notions that were brought up in the interview were not, of course, inventions by the scholars, but reflected the social radicalism and criticism of the 1960s. These ideas already existed, but the statements of the President made the legal profession hear them loud and clear. Social radicalism was thus officially translated into legal discourse. Kekkonen would not have participated in the occasion without a personal cause, which means that he obviously wanted to stir the political pot and provoke discussion. The legal scholars, on the other hand, acquired an authoritative statement for their cause and also provoked discussion. The 1970s was then the time of widespread alternative and critical scholarship. Critical legal scholarship was elaborating into a philosophical criticism of legal reasoning, and alternative legal scholarship became relatively popular among young scholars who studied contemporary social problems and wrote legal treatises from sociological and empirical points of view. In many respects, the alternative approach was accepted as a sub-paradigm within the tradition, and despite the relative popularity of the alternative scholarship, the mainstream remained traditional. By the end of the decade, much of the radical criticism had waned, as had any major scale utopian reforms of the legal system.

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A close connection between theory and practice, between jurisprudence and politics existed in Finland. Since the alternative and critical legal scholars also participated in legal politics, their scholarship was not simply academic theory. They worked on the reform of the Constitution, criminal law, and legal education, and promoted their insights in these areas. Their scholarship was politically oriented, and because it conformed to the radical social thought of the 1960s and 1970s, it had social relevance. Furthermore, a vast amount of progressive legislation was enacted during the 1970s, which was a consequence of the critical and alternative scholarship to a certain extent. The debate on the nature of legal scholarship sparked a series of events which transformed the basis of Finnish legal scholarship. However, the debate itself was more a symptom of the wider transformation of society, scholarship, and culture, than an individual event within jurisprudence. The debate was a consequence of the transformation of the legal epistemology that the critical scholars adopted. Thus, the changes in legal scholarship need to be understood in the context of the wider social and cultural changes and as related to the cultural nature of critical scholarship. Critical legal scholarship was an academic counter-culture, reflecting the changes in society and culture. The 1960s was a time of the rise of social and cultural radicalism in Finland as well as elsewhere. Finnish society changed dramatically in the 1960s, following the massive growth of population, and the industrialization and urbanization that followed the migration from the country side to the cities. Youth culture began to bloom, the working class and unions became powerful political players, and social institutions and structures were criticized. Critical legal scholars of the 1960s were young scholars, who for one reason or another, though not always, often adopted a leftist perspective on society. Leftist ideology of the 1960s was an ideology of criticism and reform, and thus the critical scholars began to point out the connection between social problems and law in their scholarship. Social radicalism emphasized these problems and saw them as consequences of the structures of the economy and power. Scholarship was politicized and adopted these notions. In many ways, critical legal scholarship was an aspect of the cultural radicalism of the 1960s. Critical scholars questioned traditional hierarchies and institutions and wanted to replace them with new ones which, they thought, were more democratic and realistic. Critical legal scholars were mostly young, searching for a position in the university structures during the turbulent 1960s, and they therefore sympathized and identified with the radical students. The generation of the 1970s was obviously a consequence of the radicals of the 1960s acquiring a position, but the earlier generation simply identified with the radical thought or considered it the most appropriate in the changing academia. Thus, they attacked the old structures and elaborated alternatives to replace them. The fact that the critical legal scholarship was both theoretically and practically relatively radical in Finland can be understood against the social and academic context. First, Finnish society had been polarized since the civil war, and in the 1960s the previously marginalized left became powerful. There were thus many things to criticize in

341 society. The cold war situation gave powerful arguments to the left which they could apply as socialist rhetoric in the criticism. Second, there had not been a realist tradition in Finnish jurisprudence which was more or less conceptualist despite the few realist influences. It was therefore easier to attack the traditional scholarship. These social and academic circumstances then provided the context for the international currents of critical scholarship. The theoretical basis of critical and alternative scholarship followed the rise of philosophy and cross-disciplinary research in the 1960s. The critical scholars did not share a theoretical basis, and were not influenced by any one single theory, but they all gathered up various strands of influences that suited their purposes and elaborated theories and arguments. Influences came from recent philosophical trends, Scandinavian alternative legal scholarship, American legal realism and political jurisprudence, and European Marxist literature. In addition, philosophical interest in the theory of science also interested legal scholars in reflecting on the “criteria of science” of their profession. These general trends led to a variety of critical legal theories, all emphasizing different aspects. To mention the most productive scholars, Eriksson was a philosopher and a Marxist scholar, and his literature was the closest to the American critical legal scholarship although there was no direct connection between them. Jyränki, Kivivuori, and Riepula were sociological jurisprudents with more or less Marxist elements, emphasizing historical, sociological, behavioral, and empirical aspects to various extents, To- lonen was a theoretical scholar with similar emphases to the previous three, and Blom was a critical empiricist and a realist. Yet there were many more, and even more appeared in the 1970s when legal scholars became more interested in and aware of Marx- ism and its potential and debated its theories. The critical theory of the Frankfurt School was not especially influential in Finnish jurisprudence, and Scandinavian influences were the most obvious in alternative criminal law scholarship and in encouraging methodological eclecticism in legal scholarship. Of course, here too the influences were also usually of an indirect kind. Nordic scholars, for instance, participated in seminars and held study sessions, which obviously influenced the elaboration of the critical thought. Despite the close connection between scholarship and politics, critical and alternative legal scholarship emerged in university in the middle of social and cultural turmoil. Thus, the most important aspect was the scholar’s pursuit of academic fame. Although much of the alternative scholarship aimed sincerely at revealing the social failures, the ultimate motive of the scholars was obviously to transcend the tradition and to be unique. Critical scholarship was an indirect consequence of the social transformation and turmoil. It was an expression of individuality and academic antagonism, a way of self-realization and counter-culture, a method of provoking, criticizing, and creating something new. In its most extreme forms, it was a total discarding of the tradition. In Finland, the scholars had the opportunity to promote their cause and acquire actual academic significance in the reform of legal education, but succeeded only to some extent. In any event, many of the alternative legal scholars did acquire academic capital and

342 tenure, and continued their careers. Some of them remained to alternative scholarship, whereas others moved closer to traditional scholarship. Critical legal scholarship was also a marginal phenomenon, and the majority of the profession remained relatively traditional. Alternative legal scholarship centering on the critical enterprise was much wider. It emanated from the same sources as the critical legal scholarship, but its individual motives were more modest. Moreover, it was not a specific school or movement, but a new mood, a way of thinking about law and legal scholarship. Critical legal scholarship was simply the radical aspect of the alternative branch. Of course, critical scholarship was more than simply the published literature, being also a mood, including seminars and study groups. It was a legal thought, a critical consciousness of legal phenomena. The critical scholars perceived legal phenomena differently than the traditional scholars. They were left in the minority because their perspective was too radical for the mainstream of the profession to accept. The far more moderate alternative strand was more popular because it did not threaten the basis of law, but simply extended the scope and methodology of legal scholarship. Finnish law did change in the 1970s, largely because of the alternative and critical scholarship. It is curious how effectively the critical and alternative scholars were represented on the reform committees. Indeed, they infiltrated the various committees and had a considerable impact on the course of the reforms. However, because they alone could not implement the reforms, these did not materialize according to the critical views in the end. Many laws were, however, reformed to conform to the critical thought of the time. Alternative views had also a considerable impact on criminal law, but that was because these notions reflected the general reformist social thought the most.

8.2 The 1980s and critical legal scholarship

Radical criticism and the insistence on altering the basis of the Finnish legal system and legal scholarship came to an end as the 1970s approached their close. By then, alternative legal scholarship had a firm position in Finnish jurisprudence, and education had changed and criminal law was changing. However, no radical break from the tradition had occurred. Whatever the motives of the critical legal scholars, it seems that the waning of their scholarship was a consequence of many things. Critical legal scholarship lacked a uniform theoretical basis and was therefore fragmented into various sub- disciplines. In addition, the times had changed by the late 1970s, and there were few young scholars willing to continue the demagoguery of critical scholarship, which thus fell out of fashion. Finally, the critical scholars of the 1960s and 1970s were making their careers at the university or elsewhere and became fatigued by their responsibilities. The utopian idealism of youth was over, and the realism of adulthood prevailed. The time of great reforms was over. Critical legal scholarship did not disappear altogether, however, but it changed.

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Indeed, there was no “rise and fall” of critical legal scholarship, even if the radical criticism came to an end as the 1980s progressed. Although the radical criticism was over, “critical legal scholarship” was still considered useful in pointing out the inequities in law,488 and scholars still debated the nature of legal scholarship.489 Furthermore, Finnish legal scholars became more interested in the American Critical Legal Studies Movement and its potential influences on Finnish jurisprudence.490 In general, the interest moved towards the rights of the citizen,491 alternative interpretation of legal sources, and alternative argumentation. Old issues remained important and several new problems appeared. The emergence of the social private law in the late 1980s was the most obvious consequence of the alternative and critical legal scholarship of the 1970s. In this regard, legal scholars applied alternative analysis and argumentation to make the private law correspond with the actual circumstances of the parties,492 and to place the doctrines of contract law into the context of reasonability.493 The purpose was to elaborate alternative methods of reasoning and argumentation that could help promote material equality through law, not to point out the irrationality of law. Radical criticism was missing, but critical consciousness was in the background of the research. The critical scholarship of the 1980s would be another story completely because of the new orientation, and thus falls beyond the scope of this study. In any event, the radical criticism of the earlier decades faded away, and new methods of critical and alternative scholarship arose instead. Critical legal scholarship in the 1960s and the 1970s did change the basis of Finnish legal scholarship and law, although not to any radical extent. These decades were, nevertheless, the liveliest time of debate on legal scholarship in Finland and were important for the way legal scholarship is understood today.

488 Thomas Wilhelmsson, Uppgifter för en kritisk civilrättslära, Oikeus 2/1982, 119–124. 489 See Oikeus 3/1982. 490 Juha Pöyhönen, The Critical Legal Studies Movement ─ yhdysvaltalaista vaihtoehtoista lainoppia, Oikeus 1984, 90─106. 491 See Oikeus 4/1984. 492 Thomas Wilhelmsson, Social civilrätt: Om Behovsorienterade element i kontraktsrättens allmänna läror (Helsinki: Lakimiesliiton kustannus 1987). 493 Juha Pöyhönen, Sopimusoikeuden järjestelmä ja sopimusten sovittelu (Helsinki: Suomalainen lakimiesyhdistys 1988).

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VI Conclusions

1 A theoretical perspective on critical legal scholarship

In this final chapter I will conclude the arguments of the book and respond to the questions asked in the introduction. First, I will assess the nature of the critical legal scholarship theoretically and thus demonstrate its essence. I will point out that critical legal scholarship ought to be viewed as a wide, cultural phenomenon, not reduced to a single factor. Second, I will compare the critical scholarship of the United States, Scandinavia, and Finland. I will first compare the Nordic Countries and the United States and then the Scandinavian countries and Finland. By analyzing the substance and the influences of these movements, I will show the similarities and differences of the critical legal scholarship in these countries. Third, I will reconstruct the historical development of critical legal scholarship. I will point out that it was a product of many currents of the postwar era, and rather a continuation than a break in the development of the jurisprudential tradition, although it meant intensification in the dynamic of that development. This historical reconstruction will further illuminate the essence of critical scholarship. The central argument of this book is that the critical legal scholarship of the 1960s and 1970s can best be described as a cultural movement. It is precisely the neglect of the cultural and epistemological aspects of critical legal scholarship that has prevented the previous studies from seeing it in a perspective which would allow a thorough understanding of the movement. Since critical legal scholarship represented a counter culture to the traditional legal scholarship, not simply politics or radicalism, it differed from the tradition in fundamental respects. At the heart of the critical legal scholarship was a different kind of perception and comprehension of legal phenomena. Because this was so, critical legal scholars argued for fundamental changes in law and legal scholarship. This also meant that the dialogue between traditional and critical scholars was extremely difficult. There was a collision between two fundamentally different views of law, set in the specific context of academic legal scholarship. The difference in epistemology was the most significant aspect of critical legal scholarship. As we saw, this study uses the concept of alternative legal scholarship in referring to the effort to make the basis of traditional legal scholarship more sociological, empirical, and philosophical. Critical legal scholarship, on the other hand, refers to jurisprudence which attempts to demonstrate the fundamental flaws in law and traditional legal scholarship. Although no strict division can be made, these conceptions help us to understand critical scholarship. The alternative legal scholarship that surrounded the critical enterprise emanated from the same sources but had more modest goals. Al-

345 ternative scholarship was quite common during the 1960s and 1970s, critical scholarship being a radical expression of the alternative thought. Alternative scholars noted that there were problems the traditional legal scholarship could not resolve, but they were not after fundamental change, rather seeking to expand the methodology of legal scholarship. The critical legal scholars, on the other hand, argued that since law was tied to the fundamental social controversies, minor changes would not suffice. Rather, a complete change in society, law, and consciousness was needed. The situation can also be seen in the context of the theory of science, using the examples and concepts provided in the introduction to this book. If a thought collective is the common intellectual background of a profession, and thought styles are the methods of observation, then a paradigm is the model of research and argumentation between the thought collective and thought styles. Thus, the alternative legal scholars were after a paradigmatic change, whereas the critical scholars sought to change the thought collective and thought styles. The critical conception of perception also illuminates the difference in epistemology. For the critical scholars, empirical observations as such were neither true nor false, but were understood in accordance with values, conceptions, and presuppositions, which, however, were contingent. They were subjective to a certain extent, but often restricted by the social and legal consciousness. The emphasis on the structural connections of knowledge was important for critical scholarship, because social and legal consciousness was seen to impose presuppositions on perception and comprehension and determined the validity of values and concepts. Personal knowledge and consciousness were thus structurally conditioned. The critical scholars sought to demonstrate the restrictive and hidebound character of modern legal thought, as well as its impact on law and the knowledge of law. In a sense, then, the controversy was about differences in epistemology and consciousness. Since the thought styles of the critical legal scholars were different than those of the traditional scholars, their images of legal phenomena differed fundamentally. The critical scholars thought that the traditional thought collective had been driven into a crisis because its thought styles could not access the true essence of law. Critical legal scholarship followed this realization and sought to expose the fallacies of the traditional scholarship and reveal the true essence of law beneath the ideological surface. Since the ultimate goal was to alter the fundamental notions about law, the critical scholars attacked the fundamentals of law, legal scholarship, the rule of law, and legal education, and sought the causes of the modern deficiencies in the roots of the problems. Because of this ambitious endeavor, a complete change was needed, which is why their criticism was so comprehensive.

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2 Comparative perspectives on the United States, Scandinavia, and Finland

Realist legal scholarship and sociological jurisprudence had a firm position in the Unit- ed States in the early 1960s. The legal realism of the 1920s and 1930s had pointed out the discretionary nature of law and the importance of the gap between law in books and law in action, even if realism was stripped of its most extreme elements and submerged into the elements of traditional scholarship during the postwar years. At the beginning of the 1960s, there already was a realist and to a certain extent even critical tradition, which the debate on neutral principles demonstrated. In the 1960s, then, the majority of the profession was traditional, but there were also alternative legal scholars emphasizing more critical notions. The growth of critical legal scholarship followed basically the same path in the United States and the Nordic Countries. Legal scholarship was oriented towards social and political sciences and philosophy during the postwar years, and critical scholarship was a radicalization of the alternative perspectives that emerged before and during the 1960s. The 1960s also witnessed the emergence of critical legal literature, to which more philosophical and theoretical elements were added during the 1970s, making the criticism more fundamental. After the mid-1970s, the critical scholarship had become so popular that organizations were needed and established for it. The United States did not witness such an attack on legal scholarship as occurred in Finland, even if scholars talked about the crisis in law. This was so because alternative legal scholarship was more familiar in the United States in the 1960s. Legal realists had already launched an attack on jurisprudence, and their legacy persisted. Although the criticism toward law and legal scholarship increased in the late 1960s, there was no need to repeat the realist attack. Critical scholarship was furthered by the cooperation between the critical scholars in all of the countries. In a certain sense, the Nordic Countries were quicker than their American colleagues in establishing organizations and law reviews for their cause, since by 1977, when the first conference of critical legal studies was held, every Nordic Country had a law journal for critical legal scholarship. This probably follows from fact that the United States is a large country where cooperation between scholars is more difficult than in the Nordic Countries where cooperation had been going on for decades. However, Scandinavian movements such as the Democratic Lawyers in Finland or the FiB-Jurists in Sweden were closer to the National Lawyers Guild than to CLS, the Ret- færd being the closest to CLS. In a sense, then, the Scandinavian critical scholars organized faster but to a lesser degree than their American counterparts. The fundamental characteristics of critical legal scholarship were similar in the United States and the Nordic Countries. The emphasis was on the social construction of law and legal consciousness, the conservative character of traditional legal scholarship, the historical analysis of the development of law, and the indeterminacy and irrationality of legal reasoning. The criticism of legal education in the United States and Finland

347 serves as an example. Despite the differences in legal culture and education, the Ameri- can and Finnish scholars promoted relatively similar arguments regarding education, the Americans during the 1960s, and the Finns in the late 1960s and the 1970s. In short, they both argued for more social data and social sciences in legal education and for a functional, problem-centered approach. Furthermore, both the American and the Scan- dinavian studies on access to justice and legal aid pointed out that law was systematically biased toward the rich. The arguments emanated from the basic aspects of alternative legal scholarship, namely, the emphasis on the gap between law in books and law in action and the cross-disciplinary methods in legal scholarship. Alternative and critical legal literature was substantially the same but differed in both form and detail in many senses. Critical legal scholarship claimed to expose the politics in law and legal scholarship and thus demystify law in all of the countries studied here. For the traditional view, this meant politicization of legal scholarship, but the critical scholars considered it simply as acknowledging an already existing situation. The similarities in the fundamental premises reflect the similarities in the deep background and the theoretical basis of critical legal scholarship. Critical jurisprudential movements always aim at demonstrating the incompatibility of the traditional scholarship with the social reality. Thus, reflecting their times, alternative and critical legal scholarship of the 1960s and 1970s articulated the arguments about the flaws in the capitalist order and emphasized the nascent human rights rhetoric. At the bottom of the critical thought was the idea of the structural inequality of society and law, the most essential argument being that the traditional legal scholarship could neither grasp the reality of the problems of law and society nor help to improve the existing circumstances. In the pursuit of grasping the legal reality, critical legal scholarship reflected similar trends. The use of the social sciences in legal analysis represented a renewed interest in legal realism. However, since critical legal scholarship was also a response to the criticism of realism that emerged after the Second World War, it extended the methods and reconsidered the arguments of realism. Unlike realism, however, critical legal scholarship was openly political, and brought structural elements as well as the consideration of values into legal analysis. In this vein, critical scholarship was an attack on the value-neutrality and positivism of traditional scholarship as well. The critical scholars emphasized the position of values and policies in legal scholarship and questioned their traditional basis. These fundamental tenets reflected the rise of the critical academic scholarship and social criticism. Critical scholars represented the counter-culture of the tradition both in scholarly and social-political fashion. Thus, too, critical legal scholarship was part of the polarization of academia in the 1960s and 1970s. Critical scholars rebelled against the tradition intellectually, politically, and with respect to scholarship and academic hierarchies. The sources of alternative and critical legal scholarship were also basically the same in the United States and the Nordic Countries. The emergence of alternative legal scholarship followed the rise of cross-disciplinary research and the development of so-

348 ciology of law and criminology. These new trends encouraged an understanding of law in context. The rise of critical legal scholarship in the late 1960s and during the 1970s reflected the radicalization of the alternative movements. The radicalization of the criticism followed the adoption of the Marxist and Weberian theories as well as the recent trends in Western philosophy in legal analysis. During the 1970s in particular, legal scholars began to apply various forms of philosophy to an increasing extent, the influences varying between the scholars, of course. On the basis of philosophy and social theories, critical scholars claimed to have found a fruitful way to analyze law and its relation to society. Critical scholars distanced themselves from the simple empirical analysis of law and began to analyze its essence and its connections with ideologies, values, and politics. The critical legal scholarship movements in the United States and the Nordic Countries did not influence each other, although they derived relatively from the same sources. With respect to the rise of alternative scholarship, the Nordic Countries followed the American example, and American sociology of law and critical criminology had an impact in Scandinavia. American political jurisprudence also influenced the constitutional scholarship in Finland, and some Scandinavian scholars, such as Aubert, Eckhoff, and Andenæs, were occasionally read in the United States. The rise of the alternative legal scholarship in the Nordic Countries thus reflected the extension of the basis of sources of legal scholarship, as well as the turn towards American influences. The rise of the critical legal scholarship, however, mostly reflected the interest in philosophy and the radicalization of society, and the critical legal movements of the conti- nents were not in touch with each other before the 1980s. Nordic legal scholars, of course, held conferences and read each other’s literature, the foundation of Retfærd being the culmination of the Nordic cooperation. Even if the American critical scholars did not explicitly build on Marxism and some Nordic scholars did not refer to it, the basic tenets and arguments of critical legal scholarship relate it to the tradition of Western Marxism. Critical and Marxist legal scholarship of the 1970s was a continuation of the expansion of Western Marxism into the new fields of research, and it was also an attempt to bridge the gap between theory and politics. The cooperation between theory and practice was closest in Finland. It was a bit more problematic in Scandinavia, since there were serious efforts to close the gap between theory and political practice, yet the scholars were not as active politically as their Finnish colleagues. In the United States, the critical scholars implemented some measures to put their theoretical thoughts into practice but they were not politically as active as the Nordic scholars. As contradictory as it may seem, then, critical legal scholarship both opened and closed the gap between theory and politics. Some scholars worked actively with practical matters in order to fulfill their theoretical ambitions, whereas others were more interested in constructing theory than changing society. Considering critical legal scholarship as a cultural phenomenon, we find another unifying element in the deep background of critical thought. The critical scholars brought the element of the unification of the interpreting subject and the interpreted

349 object into the picture. The critical legal scholars sought to point out that the law was being constructed by the scholars who interpreted it. As the critical scholars realized the possibility of transcending the tradition, they took the task of transforming it as the purpose of legal scholarship. Since the critical legal scholars emphasized the position of legal scholars as parts of the tradition in both the United States and the Nordic Coun- tries, they argued that the purpose of the scholars should be to unravel and change the tradition. A major difference between the critical legal scholarship in the Nordic Countries and the United States was that the American critical scholars in general put more emphasis on the philosophical analysis and criticism of law, whereas the Nordic scholars were more interested in the political use of scholarship. The explanation is that the political culture of the Nordic countries was more hospitable to socialism and the connection between political radicalism and legal scholarship was thus easier to achieve. American critical legal scholars did cooperate with the National Lawyers Guild but the tone of their radicalism and activism was less socialist than in the Nordic countries. This does not mean that all Nordic critical legal scholarship was politically motivated. Rather, it simply means that the political rhetoric was more familiar to the Nordic scholars than to the American scholars. In any event, the connection between social and political activism on the one hand and academic scholarship on the other was closer in the Nordic Countries than in the United States. Furthermore, critical legal scholars in the United States did not have much faith in empirical legal scholarship, whereas the Nordic scholars were more prone to see the usefulness of empiricism. This can be explained through the development of the critical legal scholarship. In the United States, critical legal scholarship was a radical counter reaction to the sociological jurisprudence that had been on the rise since the late fifties. In the Nordic Countries, however, critical legal scholarship was more a radical extension of the sociological jurisprudence, which had much shorter roots in Scandinavia than in the United States. In the Nordic Countries, critical legal scholars were closer to the development of the sociology of law than their American colleagues who matured during the late 1960s and early 1970s in an environment in which sociology of law already had a firm ground and was not as powerful tool of criticism as it had been. Be- cause critical legal scholarship was an expression of cultural radicalism and individualism against the grain, the American critical legal scholars turned towards philosophical criticism of law instead of empirical research. In the Nordic Countries, empirical and politically oriented research had more potential as a tool of criticism. Of course, Nordic critical scholars did question the usability of empiricism without an analysis and criticism of ideology. This supports the conclusion that Scandinavian Marxist scholarship and American CLS were the most radical expressions of the critical legal scholarship and can be seen as equivalents. Another major difference, or similarity depending on the point of view, was the exiguity of Marxist and socialist rhetoric in the American critical scholarship. At a fundamental level, however, the American critical legal scholarship could be characterized

350 as neo-Marxist. Nevertheless, no major Marxist front arose in the United States, whereas the opposite was the case in the Nordic Countries, since almost every critical legal scholar advanced some aspect of Marxism, major Marxist fronts arising to stand up against the tradition. The Nordic scholars debated the various versions of Marxism as well as its precise meaning, whereas the Americans used various philosophical literature and theoretical approaches. And although the basis of critical legal scholarship rested on Marxism, scholars developed various theories, came to different conclusions, and criticized each other’s works. Moreover, Marxism was a background on which critical theories were raised, and no scholar besides Eriksson elaborated a systematic legal theory based on it. Thus, even if the premises of critical scholarship were shared, scholars differed in several respects. The differences in theories and arguments as well as the differences in the use of Marxism in the United States and the Nordic Countries can be explained if we understand critical legal scholarship as a cultural phenomenon. Because the criticism emanated from the same sources, and because the general aim of the criticism was the same, critical scholarship was the same at its most basic level. Its arguments were basically the same as was its image of the law, society, and legal scholarship. However, when the general characteristics are seen in more detail, the differences become clear. Marxism lacked a strong basis in the United States, becoming a tool of the critical academy only in the 1970s. Thus, even critical scholars wanted to look for other directions while pursuing a critical method. Even the American New Left was neither Marxist nor Com- munist. In the Nordic Countries, however, both Marxism and socialism had stronger roots than in the United States, and thus the critical scholars were readier to use Marxist rhetoric. Moreover, the approach of the scholars was basically the same since they shared the perspective on the law and the world, but the differences in their theories followed their interests and scholarly facilities. The differences in emphasis followed the national circumstances as well. For example, since race discrimination was a particular problem in the United States, much of the early alternative legal scholarship focused on racial problems, and a specific branch of scholarship developed for that cause later. Crime and its control were problems everywhere, and scholars tackled it in each of the countries and brought up problems that were domestically relevant. The similar fundamental basis of alternative and critical legal scholarship thus differed depending on the personal interests of the scholars and the local circumstances. Stressing the differences of the scholarship in the countries, one might argue that the movements were more different than similar, but in general terms it seems that the critical legal scholarship in each country had a relatively similar basis.

351

3 Scandinavia v. Finland

Alternative and critical legal scholarship in Scandinavia and Finland originated from the same basis but were shaped by the specific social, cultural, and scholarly circumstances of the individual countries. Roots always go further back, but sufficient is to say that the theoretical basis of alternative legal scholarship was created in postwar philosophy and social and political sciences. Many Scandinavian scholars studied in the United States and brought the methodologies of sociological jurisprudence with them. Scholars such as the Norwegians Vilhem Aubert and Thomas Mathiesen were pioneers in promoting sociological jurisprudence and cross-disciplinary legal research in Scandinavia, and sociology of law eventually became a strong discipline. During the 1960s, legal scholars became more interested in the social functions and effects of law, and in the causes of the gap between law in books and law in action. Besides the theoretical influences, the changes in society during the late 1950s and early 1960s encouraged more sociological jurisprudence. Criminology in particular provided a fertile ground for alternative legal research. By the beginning of the 1970s, there was a strong alternative criminology and sociology of law establishment in Scandinavia. Critical legal scholarship arose when elements of philosophy and the counter-culture of the 1960s were mingled with the alternative mood. It was then further molded by the strong left ideology and the rise of Marxism in the early 1970s. The basic features of alternative and critical legal scholarship in Finland and Scan- dinavia were the same. Alternative legal scholars used social science in legal scholarship, advocated empirical and sociological approaches, and concentrated on the social functions and effects of the law. Scholars often also worked in practice and tried to further their arguments by improving the legal status of the less privileged social classes. Similarities in scholarship were obvious in criminology, since this was the field in which the cooperation was the most marked. Critical legal scholarship, on the other hand, sought to demonstrate the inevitable connection between social structures and law. During the 1970s, Marxism made a strong entrance into legal scholarship and had a significant impact on Scandinavian critical legal scholarship. Scholars of course disagreed on the details but shared the theoretical basis. The most striking difference was that critical legal scholarship was more radical and political in Finland than in Scandinavia. In addition, Finnish scholars participated more actively in political matters. Although Scandinavian critical legal scholars spoke for socialism and social change, they were not as radical and enthusiastic as their Finn- ish colleagues, who advocated the establishment of a Soviet government in Finland and subjecting the courts to parliamentary control. Scandinavian legal scholars were not as concerned about the establishment of a socialist regime, although they did, particularly in Norway, argue for industrial democracy and a social conception of private property. In short, Scandinavian critical legal scholarship focused more on Marxist analysis of

352 law and on the means to adjust society, whereas the Finns were more radical and were apparently after a more thorough social and legal change. What might explain the radical character of critical legal scholarship in Finland? First, there was the scholarly tradition. Legal realism was on firmer ground in Scandi- navia than in Finland. Sociological jurisprudence began to make its way in the early twentieth century, and during the 1920s and 1930s it made a serious breakthrough in Scandinavian legal scholarship. Thus, at the beginning of the 1960s, traditional legal scholarship was quite realist and, furthermore, it had already faced a radical attack. In Finland, however, realism had not had such an impact. The efforts to introduce realist elements into Finnish legal scholarship in the first half of the century were largely rejected or ignored, and in the mid-1960s, although realist elements were brought to Finn- ish jurisprudence, traditional legal scholarship in Finland was more conceptualist and normative than in Scandinavia where methodological eclecticism was far more common. Furthermore, there had not been any radical attack on the jurisprudential tradition in Finland, and thus the field was ripe for one. The radical attack on the traditional methods of legal scholarship and law that began in the late 1960s was therefore an expression of frustration with a relatively old-fashioned and conservative legal culture. The scholarly situation provides, however, only a partial explanation since it is also in need of explanation. In explaining the situation of traditional scholarship in the 1960s, we will have to shift our historical perspective to the time of Finnish independence and the civil war, which had divided the society and suppressed leftist tendencies. By the 1960s, then, Finnish society was polarized. The social circumstances, as well as the fact that the Finnish Constitution was drafted in the aftermath of the civil war, provided a rhetorical field for the scholars where the legal profession could be related to the dominant class on which all the blame for the social shortcomings could be put. The leftist rhetoric was, of course, a feature of the counter-culture everywhere, but in Fin- land it had a unique position because of the historical circumstances. The historical and geo-political relationship with the Soviet Union and the Cold War rhetoric that followed provided further impetus for the Finnish scholars. In this respect, too, anti-capitalism and pro-socialism were common features of the critical rhetoric, but in Finland the historical-political circumstances gave them further weight. In spite of the differences, it is important not to exaggerate the Finnish uniqueness. The fundamentals were basically the same. In all of the Nordic Countries, critical legal scholars stressed the structural connections between social power structures and law, the importance of historical analysis of the construction of law, and the indeterminacy and the structural limitations of legal reasoning. The central argument was that law was a social construct, reflecting the structures of the economy and power, and therefore non- autonomous and non-neutral. Different scholars had different emphases, and there were differences between the Scandinavian countries and between them and Finland, but the basic ideas were the same. The development of the alternative scholarship also showed similar traits. Scandi- navian countries were the pioneers in sociology of law and alternative criminology, and

353

Finland followed them in this, acquiring most of its direct influences from them. How- ever, regarding critical legal scholarship, the development was parallel, depending on the perspective. Norwegian scholars had debated the relation between law and politics since the mid-1960s, and in 1968, the Swedish scholar Bolding and the Norwegian scholar Fleischer published their jeremiads on critical legal scholarship. In Finland, Eriksson had been developing a critical theory of law since 1966, and the rebellion on methods burst out at the end of the decade, which was a time of intense debate on the nature of legal scholarship. The dissertations by Kivivuori and Blom were especially important in intensifying the debates that continued in the pages of law journals. The Finnish critical scholars were also the first to publish a manifesto on the wrongs of the control policy in 1967 and the first to found a critical law journal in 1972. However, such matters had been discussed in Scandinavia since the beginning of the 1960s at least, and the association for penal reform was founded earlier in Sweden than in Fin- land. In many ways, the movements overlapped, and it is therefore difficult, and pointless, to argue about who was first.

4 Critical legal scholarship as a historical phenomenon

Critical legal scholarship was an academic manifestation of the counter-culture of the 1960s, molded and transformed by the events of the 1970s. The social transformation thus provides the basis for the analysis. The 1960s was a time of social turbulence. The society was industrialized and urbanized to the extent that the industrial working class became stronger and the problems within the urban proletariat became more obvious. Counter-cultures had made their way since the war, and by the 1960s, the time was ripe for a radical break with the past. There was a large generation of young people, many of whom were not adapted to the social norms, an obvious gap between the official policies of the state and the social reality, and a super-power conflict at the global level, the leader of the Western world storming a poor country far away in Asia. Youth people thought that there was something amiss with the world-order, and resistance was about to arise. Besides the social changes, academia also witnessed dramatic events. Scholarship had changed since the war, and by the 1960s, alternative legal scholarship such as sociology of law and political jurisprudence were popular. In addition, the universities boomed with students, some of whom identified with and contributed to the counter- culture. These students read critical scholarship, Marxism, existentialism, philosophy, and Beat, and talked about these things and what was wrong with the world and society. They adopted the identity of a misfit, of a person who antagonized the traditional authorities, fought for a better society, and pursued authenticity. The New Left was a political expression of the counter culture, a product of the youth frustration with the world, and an effort to make a difference in politics. Since the economic and social or-

354 der was capitalist, the political left became a notion and rhetoric of criticism and alternative solutions. The leftist perspective of alternative and critical legal scholarship was linked to their reformist aims. Although one did not have to be a leftist in order to become an alternative or a critical scholar, most of them were, since leftism was the critical thought of the time, representing the social, political, and cultural counter-culture. And since critical scholarship often resembled leftism and counter-culture, many of the critical legal scholars adopted a leftist perspective whether they originally sympathized with it or not. This then led to the revitalization of Marxism. The young people of the 1960s generation took Marxism as their own, whether they actually read it or not, and took much inspiration from it. The pattern of the development of the critical thought was basically the same in the United States and the Nordic Countries, but every nation had its own unique characteristics that influenced the particular elements and details of the critical scholarship. Critical legal scholarship thus emanated in the latter half of the 1960s out of and as a reaction to the sociological jurisprudence that had become widespread during the decade. The alternative legal scholarship prior to the 1960s had sought to point out that law was unable to solve social problems as well as legal flaws. The aim was to improve the law so that it could be used as a tool to organize society. Some parts of the alternative legal scholarship were more critical than others, but the overall impression was the same nevertheless. The alternative scholars wanted to integrate the elements of the social sciences into legal scholarship. By the end of the decade, however, a more critical branch of scholars emerged who thought that the simple sociological analysis did not suffice because it could not grasp the problems behind the observable reality. These scholars then began to pay attention to the structures of law and society as well as to legal consciousness. The critical turn in jurisprudence occurred in the first half of the 1970s. In the United States, this meant that scholars began to emphasize the utter irrationality of legal reasoning as well as the way observation was structured by social consciousness. Be- cause of these notions, the critical scholars argued, even the realist movements were unable to fathom the problems of law and society. In Scandinavia, the 1970s meant the Marxist turn, meaning that legal scholars began to use Marxism in analyzing the empirical data on law. These scholars stressed that despite the efforts that were made to improve social equality, the problems continued because the legal and social structures prevented any serious changes from occurring. Thus they began to critically analyze the structures within which law operated, so that they could understand the social functions and effects of law in a more critical sense than their sociological predecessors. The basis of the critical legal scholarship was thus laid in the 1960s, but its theories and arguments were elaborated and shaped during the 1970s. Legal scholars were generally exploring alternatives to the traditional scholarship in the 1960s and 1970s, and critical legal scholarship was the most radical and critical expression of this reformist thought. Critical legal scholarship was an intensification of change, a radical exten-

355 sion of the criticism that already existed, not a radical break from the postwar development of legal scholarship, although it meant a greater move away from the tradition in Finland than in the United States and Scandinavia. Nevertheless, critical legal scholarship was more philosophical and political than any of the critical movements that preceded it, and its tenets and arguments were too radical for the tradition to approve. In a scholarly sense, critical legal scholarship was a mixture of postwar developments. The emergence of empirical social sciences on the one hand, and the philosophical interest in the metaphysics beyond observable reality on the other coalesced in the development of critical legal scholarship. The alternative legal scholarship that developed during the 1950s and 1960s was an empirical movement, following the trends of empirical science and cross-disciplinary research. The emergence of the critical legal scholarship in the late 1960s and during the 1970s, on the other hand, was a radicalization of the alternative movement, following the radicalization of society and the transformation of scholarship. It was then more philosophical and cynical than its predecessors, and it sought to analyze the “truth” beneath the observable reality. The changes in society and academia that occurred parallel with the scholarly changes were also important. The general democratization of society, the rise of the human rights rhetoric, and the recognition of the poor status of the social underdog all encouraged a more social approach to legal research. They also provided new career opportunities in the academy. The social changes facilitated the rise of the alternative and critical legal scholarship in the 1960s. As we saw, these were all common traits in the development of the critical scholarship, which sought to demonstrate the inequality of the modern system and the law within it. Academic scholarship responded to the many changes in society, and the student explosion accelerated the transformation of academia. The orientation toward social sciences and the interest in promoting social rights were apparent. The development of critical scholarship marked the rise of the radical left and the radical criticism of the capitalist order, the Marxist-Weberian criticism of society, and the rise of the student radicalism and the counter-culture, which abandoned the existing lifestyle, authorities and hierarchies, and sought to establish a complete alternative to the modern system. It is precisely the academic arena where all the other elements of the critical scholarship are gathered. Although there was much diversification regarding the theories and arguments of the critical legal scholars, the unifying character was often leftism. How- ever, this does not mean that we should reduce the whole critical enterprise to politics. Even though the political aspect was significant in the formation of the scholarly identity of the critical scholars, it was not the only reason for the rise of the critical scholarship, which was a gathering of those with similar ideas about law, society, politics, and scholarship. Although they often pursued political ends, these could not have been their sole purpose, because then it would have been more obvious for them to act in practice. Leftism was also rhetoric, not simply politics. Factors in the changes of scholarship were thus the scholarly tradition, the changes in society, culture, politics, and science, and the world view of the scholar. The political

356 biases of the scholar did not determine the direction of his or her work, because a scholar had to balance between the scholarly tradition and his or her world view. Some scholars wanted to engage in changing the world and thus in politically oriented scholarship, while others wanted to put their personal preferences aside and concentrate on more traditional scholarship, and yet others wanted to alter the scholarly tradition without any extra-scholarly reason. Thus, critical legal scholarship should not be reduced to a single factor, but has to be understood as a collection of ideas manifested in academic scholarship and the theoretical enterprise. Critical legal scholarship was partially a sincere attempt to reveal legal and social problems and to revise them in order to create a better society. It was also an academic enterprise of scholars who were, for one reason or another, frustrated with the university or the law faculty and wanted to have their say on the issues. Thus, they tried to acquire academic reputation, which was not necessarily of immediate benefit to them. They were rather after an original and authentic self as a legal scholar. In the most fundamental sense, critical and radical thought was an academic life-style, and critical legal scholarship was an academic counter-culture. Fundamentally, critical legal scholarship emanated from the same sources in the United States and Scandinavia. On the one hand, critical legal scholarship was a response to the social and political problems which were identified in the radical upheaval and in the demands of participatory and economic democracy. On the other hand, it was a response to the epistemological criticism of the liberal capitalist state, which took the values of the contemporary society as given and excluded all consideration of alternative values. The critical scholars sought to demonstrate that social values and institutions were conventional and contingent and these impulses were then realized within academia in the critical pursuit to transcend the tradition. The motives of the scholars to engage in critical activities might have varied to a significant extent. Some wanted to pursue a just society, whereas others were interested in revising legal scholarship and elaborating a more competent theory. Yet, for some the whole enterprise was simply for the sake of criticizing the academic and scholarly traditions. To analyze the personal motives of each scholar would require thorough biographical examination, but for our purposes a more general analysis will suffice. Critical scholarship originated in the realization of the discrepancy between legal education and the personal world view of the scholars. It is therefore the academic field that provides the common background of the alternative and critical legal scholarship and helps us to understand them as related to the general social and scholarly context and to the personal motives of the scholars. In the Nordic Countries, the signs of the fading of the critical scholarship were evident in the late 1970s, whereas in the United States the critical scholarship was becoming more popular. Critical scholarship slowly waned when the original scholars became too preoccupied with their professional responsibilities or otherwise lost their interest in the critical enterprise, and when society changed to the point where the criticism of the fundamental basis of social values and institutions became less interesting and signifi-

357 cant. Of course, new generations of critical scholars emerged but these were not of the same magnitude as the one studied here. Critical legal scholarship continued but not at the same level. In the United States, however, the 1980s registered the zenith of CLS which lost its momentum only when the scholars were unable to find a unified basis for their theory and when the critical scholarship began to lose its significance. Critical scholarship of course still continues, but in a more marginal form and subsumed under the general paradigm. Alternative legal scholarship that was a wider response to the social and cultural change, and the critical legal scholarship which was a more extreme manifestation of the period, did change the character of legal scholarship by opening it up towards methodological eclecticism, even if no radical transformation occurred. The rise and development of critical legal scholarship reflected various social traits, but the movements should not be seen simply in the light of the social and political changes. It is important to take the scientific and scholarly changes into account as well. Besides the social and political changes, and besides the expansion of the methodology of legal scholarship into the social sciences, philosophy, and Marxism, critical legal scholarship also represented a new kind of epistemology and world view. The problem of the previous accounts of CLS has been that they have focused on one aspect of the movement and neglected the encompassing, cultural aspect. Thus, the historical reconstruction of critical legal scholarship also answers the question concerning the essence of the criticism. Critical legal scholarship is best understood as a cultural phenomenon, because it grasps all of the aspects and brings them together in a way that creates a synthesis of the various currents of change. Critical legal scholarship was a counter culture that embraced the alternative lifestyle, the promotion of the rights of the citizen, the transformation of the basis of legal scholarship, the urge to develop new theories, philosophical interests, and intellectual criticism of the social order. The personal motives of the scholars varied, but the overall theme was the same for them. They wanted to pursue a counter-cultural identity in general and some individual element within it in particular. A problem of looking back to the 1960s and interpreting the critical scholarship is that the perspective often determines the outcome. Some see critical scholarship simply as political agitation, whereas others want to emphasize its theoretical and philosophical implications. For some, the critics were rebels without a cause, whereas others claim that they created the basis of modern legal scholarship. As my analysis demonstrates, however, critical legal scholarship was a broad cultural phenomenon incorporating various aspects, and only through an extensive analysis can we understand the essence of the movement. Critical legal scholarship of the 1960s and 1970s was a part of the wider transformation of culture, society, scholarship, and jurisprudence. It was an endeavor of scholars within a historical period, aspiring after an academic career, and responding to the changes that surrounded them. We may never fully comprehend the motives of each scholar, but a thorough understanding is possible through a comprehensive historical analysis. As my historical analysis demonstrates, irrational motives may sometimes be the reasons for historical change. Furthermore, retrospective views may change our

358 conceptions of the epochs of the past, and villains of the past may become heroes in the future and vice versa. Thus, the evaluation of the critical scholarship depends on the perspective of the interpreter. I have demonstrated that the critical legal scholarship of the 1960s and 1970s was a sum of various and complex factors, and that the critical scholars were neither anarchists nor heroes. I hope I have done justice to my subject and encouraged the reader to seek the truth. For it does not matter whether the truth is “out there” or something we construct; what matters is that we keep searching for it.

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Index Bell, Derrick 136 Bjarup, Jes 179, 179 n. 104, 192, 192 n. 174, 230 Aarnio, Aulis 255–256, 260–261, 261, n. Blom, Raimo 11, 204 n. 237, 262, 264–265, 56, 263–265, 270, 272, 273 n. 118, n. 121, 270, 281, 286, 295, 306, 307 n. 314, 310, 278–279, 281, 296–297, 318, 320, 325– 312, 312 n. 344, 328–329, 334, 342, 354 326, 325 n. 410, 327 Blume, Peter 11, 177, 186–187, 241 Aarnio’s Circle 318 Bodin, Göran 229 Abel, Richard 86, 86 n. 259, 89–90, 118– Bolding, Per Olof 11, 170–173, 170 n. 64, 119, 131 171 n. 67, 68, 186, 233–235, 235 n. 405, Alanen, Aatos 254 n. 21 259 n. 48, 354 Albrechtsen, Erling 188 Bondeson, Ulla 206 Americanization 36, 253, 301 Bourdieu, Pierre 15–16 Analytical jurisprudence in Finland 255– Bratholm, Anders 170, 206, 216 256, 256 n. 32, 260–261, 263, 270, 272, Brest, Paul 75 275, 281, 293, 333 Bruun, Niklas 11, 12 n. 51, 193 n. 181, n. Analytical philosophy 184, 244 n. 446 184, 297, 316–317, 329 Andenæs, Johannes 157, 198, 204, 206, 207, 207 n. 262, 211–213, 212 n. 285, 216, Camus, Albert 15 219, 221 Civil rights struggle 41, 46, 46 n. 9, n. 11, Andenæs, Kristian 249 47, 68, 74, 135, 138, 145 Anthropology 37, 65, 112 Cold War 36, 40, 45, 50, 64, 159, 162, 342, impact on legal scholarship 61, 65, 65 n. 353 131, 67, 77, 117 Conceptual jurisprudence 6, 31–33 Anttila, Inkeri 198, 198 n. 202, 301–302, Conceptualism 3–4, 34, 113, 122, 175 n. 306–308, 310 85, 254, 263, 281, 305–306, 339–340, 352 Aro, Pirkko-Liisa 321 Conference on Critical Legal Studies 17, Aubert, Vilhelm 11, 165–168, 165 n. 37, 78, 96 n. 314, 118, 119 n. 451, 120, 148, 166 n. 43, 175, 175 n. 85, 176, 185, 192, 149, 154 192 n. 177, 197, 204, 204 n. 236, 208, 240, Constitutional law 52, 57, 57 n. 74, 78, 99, 246, 349, 352 103–104, 107–108, 119, 170, 170 n. 63, n. 65, 215–222, 283–294, 283–285, 287–289, Backman, Eero 11, 243, 266, 272, 279, 281, 287 n. 198, 291–292, 297, 299–300, 314, 290, 298, 309–311 333 Baker, C. Edwin 10, 91–93, 107, 124–125, Consumer protection 48, 75, 233, 321–323, 124 n. 483 321 n. 390 Balbus, Isaac 113, 121 Continental philosophy 122, 148–149, 148 Beard, Charles 13, 101 n. 335, 287 n. 629, 153 Beat 43, 92, 354 Contract law 69, 71, 100, 102, 154, 167, Becker, Theodore 55, 55 n. 62, 59, 62 220, 232–233, 314, 320–323, 344, 326, Behavioral sciences 51, 56–57, 59–61, 71, 333–336, 357 72, 77, 82, 112 n. 415, 273, 290 Counter culture 2, 25, 42, 50, 92, 150, 161– Behavioralism 63, 105, 180 n. 111 162, 247, 253, 353–356 Behavioralist jurisprudence 56 n. 66, 57, 57 critical legal scholarship as 16, 92, 125, n. 70, 61–63, 69, 70, 173–174, 307, 322, 150, 299, 341–342, 345, 354, 357 340, 342

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Criminal law 2, 78, 81 n. 215, 99, 108–116, 292, 295, 295 n. 245, 308–311, 328–331, 154, 166, 195–214, 219, 223, 225, 226, 334–339, 336 n. 477, 339 n. 487, 340, 342, 240, 272, 295, 296, 300–314, 323, 332– 351, 354 333, 335, 341–343 Esser, Josef 238 n. 421 Criminology 5, 23, 108, 113–116, 116 n. Existentialism 43, 98, 147, 354 440, 136, 158, 195–201, 196 n. 194, 203, 211–214, 216, 246–247, 278, 300–304, Faulkner, William 16 308–309, 313, 349, 352, 353 Feinman, Jay 102 Critical gender studies in law 141–142, Feminism 48, 138 n. 564, 163, 224, 252 230–232 Feminist jurisprudence 10–11, 138–143, Critical Race Theory 10, 11, 135–137, 143, 155, 230, 232 149, 155 Fleck, Ludwik 8, 8 n. 39 Fleischer, Carl August 11, 170, 170 n. 65, Dalberg-Larsen, Jørgen 11, 173, 174 n. 83, 172–173, 172 n. 73, 215, 217–222, 259 n. 175 n. 85, 178, 182, 237, 244, 244 n. 446 48, 354 DETA-project 327 Fogelklou, Anders 11, 188, 242–243 Duxbury, Neil 17, 28, 29 n. 25, 78, 96 n. Formalism 26–30, 26 n. 6, 55, 96–98, 101, 314, 125, 146 n. 622, 154 104, 122, 139, 169, 171–172, 177, 217, Dworkin, Ronald 71 n. 167, 87, 124, 238 n. 219, 222, 254, 278, 282, 286, 334, 340 421, 336 Frankfurt School 38–39, 148, 162, 183, 342 Freedom of contract 28, 275, 314, 320, Eckhoff, Torstein 11, 165, 173, 176–178, 322–323 179 n. 104, 215, 217, 219, 236, 238 n. 420, Friedman, Lawrence 65, 71–72, 71 n. 167, 239, 239, n. 422, n. 423, 349 81 n. 215, 82, 102–103 Edling, Stig 205 Fundamental contradiction 129–130, 129 n. Edlund, Sten 167 516, 131 n. 522 Eklund, Per 189–190, 235–236 Elwin, Göran 11, 185, 185 n. 135, 204–205, Gabel, Peter 10, 121–122, 124, 148 n. 629 207–208, 209 n. 268 Galanter, Marc 66–67, 67 n. 140, 91 Empirical approach to law 21, 28–29, 71, Griffiths, John 10, 86, 86 n. 259, 112–113, 81–82, 84, 109, 120–121, 133, 147, 176, 113 n. 418, 116 185, 197–198, 197 n. 194, 204, 206, 226, Guiding standards 238–240, 238 n. 420, 229, 231, 233, 249, 255, 262, 264–265, 239 n. 422, n. 423 269–270, 273–274, 278, 281–282, 318– 319, 332–334, 340, 342, 345–346, 350, Hauge, Ragnar 197 n. 194, 204 211 n. 277 352, 356 Havansi, Erkki 234 n. 396, 304 Environmentalism 48, 75, 107, 163, 220, Hefte for kritisk juss 225 253–254 Heinonen, Olavi 265, 273 n. 118, 296, 298, Epistemology 8–10, 21, 39, 78, 148–149, 306, 310, 328 148 n. 631, 151, 153, 269, 276, 293, 341, Helin, Markku 277 n. 139, 318, 320 345–346, 358 Heller, Thomas 92, 118 Epistemological turn 39, 149, 189 Heydebrand, Wolf 133 Eriksson, Lars D. 11, 12 n. 51, 185 n. 135, Holt, Wythe 101 n. 340, 133, 133 n. 539 190–191, 244–245, 244 n. 449, 257–261, Horwitz, Morton 10, 12 n. 52, 98, 100–103, 259 n. 43, 261 n. 56, 265, 269, 271, 273 n. 101 n. 340, n. 341, 118–119, 126–128, 127 118, 275–276, 280, 283, 285, 288, 290, n. 500, n. 507, 151

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Hultén, Gösta 189 Krarup, Ole 11, 187–188, 187 n. 145, 191, Hurst, James Willard 68, 72 n. 174, 100– 236, 2436 n. 412 101, 102 n. 344 Kronman, Anthony 95 n. 309 Hydén, Håkan 11, 242 Kuhn, Thomas 7, 8 n. 39, 39, 93, 145, 268

Ignatius, Antero 277, 277 n. 139 Labor law 97, 123, 189–191, 193–194, 226, Industrial democracy 220–222, 246, 285, 229, 252, 315–317 315, 352 Lahti, Raimo 269, 303, 305, 305 n. 300, 309, 311 Jacob, Herbert 57, 59 Lauridsen, Preben Stuer 177, 180–181, 180 Jareborg, Nils 208, 212, 236 n. 414, 239 n. 111, 236, 236 n. 414, 239, 241 Juss-buss 223, 223 n. 341, 226, 249 Law and development movement 51, 64– Jyränki, Antero 11, 258, 261, 263, 265, 265 67, 70, 70 n. 160, 72–73, 78, 88, 91, 119, n. 75, 284–285, 287–288, 291, 294, 323– 120, 167 324, 328–329, 340, 342 Law and economics 91–91, 91 n. 286, 117, Jägerskiöld, Stig 190 125, 147, 154 Jørgensen, Stig 174, 174 n. 83, 178, 186, Law and society movement 10, 51, 67–73, 192, 232 78, 81, 89, 99–100, 102, 103, 118–119 Leff, Arthur 10, 91, 95 n. 308, 131 Kaijser, Fritz 235 Leftism 40–41, 48, 78, 163–164, 247, 252– Kairys, David 117, 122 n. 470 253, 268, 273, 299, 341, 355–356 Kalima, Kai 315 Legal aid 74, 97, 121, 131, 179, 223–227, Kalman, Laura 101 n. 341, 128 223 n. 341, 226 n. 357, 229, 348 Kastari, Paavo 265, 287, 287 n. 198, 297 Legal education 22, 26–30, 73, 77, 79–84, Katz, Al 10, 98, 111, 113, 116, 130–131, 89, 120, 132–133, 133 n. 539, 138, 141, 131 n. 522 143–144, 150, 166 n. 44, 177, 186, 186 n. Kekkonen, Urho Kaleva 264, 265 n. 77, 139, 234, 257, 272, 324–332, 341, 342, 267, 282, 295, 325, 340 346, 347–348, 357 Kelman, Mark 10, 125 Legal realism 3, 28–29, 32–34, 51, 68–69, Kennedy, David 148 77, 80, 84, 104, 145–146, 145 n. 615, 146 Kennedy, Duncan 10, 12 n. 52, 67 n. 140, n. 619, 147, 159, 164, 168–169, 171, 178, 79, 83–84, 90, 93, 97–98, 118–119, 129– 181, 228, 247, 257, 278, 280, 333, 342, 131, 130 n. 519, 131 n. 522, 133 n. 539, 347–348, 353 148 n. 629, 186 n. 141 Legal sociology 61, 165–168, 179–180, Kinoy, Arthur 10, 86 182, 185, 238, 242, 269, 303 Kivivuori, Antti 11, 12 n. 51, 260–261, 261 Lindgren, Janet 133–134 n. 56, 263–264, 265, 269, 270–271, 273 n. Linguistic turn 37, 39–40, 153 118, n. 121, 274, 278 n. 146, 298, 310–311, Linguistic philosophy 4, 174, 256, 270, 340, 342, 354 278, 340 Klami, Hannu Tapani 31 n. 35, 266, 263, Lipset, Seymour Martin 17 305, 309, 330 Klare, Karl 10, 43, 89, 98, 122–123 Macaulay, Stewart 10, 71–72, 118–119 Knoph, Ragnar 239 n. 421 MacKinnon, Catharine 142 Kofler, Judith 128 Mahkonen, Sami 319 Kolko, Gabriel 101 n. 335 Makkonen, Kaarle 255, 256 n. 32, 266, 294, Konstari, Timo 333 330

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Marcuse, Herbert 38, 42, 42 n. 87, 85, 107 Oikeus 225, 272–273, 334 Marx, Karl 37, 37 n. 67, 85, 149 Olofsson, Gunnar 204, 204 n. 236, 307 n. Marxism 13, 37–40, 48, 50, 88–89, 99–103, 314 113–116, 118–123, 125–126, 128, 147, Os, Audvar 218 152, 162–163, 168, 180, 182–183, 214, 222, 223, 225, 229, 231, 240–241, 253, Packer, Herbert 112–113, 112 n. 414, 113 268, 290, 327, 337, 349, 354–355 n. 418 and critical legal scholarship 89, 100, 102, Paradigm 7–10, 8 n. 38, 15, 28, 34, 39, 60 118, 119–123, 122 n. 471, 123 n. 472, 125, n. 98, 66–67, 78, 82–83, 87, 89, 91, 93, 147, 153, 179, 179 n. 105, 208, 222, 223, 108, 115, 145, 145 n. 614, 151, 170, 175, 226, 230–232, 235–236, 246–249, 271– 175 n. 85, 186, 186 n. 141, 203, 253, 268, 272, 275–277, 286–289, 293, 308–310, 279, 281, 313–314, 346, 358 315–316, 319, 327, 342, 349 Parsons, Talcott 96 Marxist legal scholarship 10–11, 158–159, Phenomenological analysis of law 121–122 164, 182–195, 208, 223–224, 226, 228, Pirsig, Robert 16 240–245, 246–249, 275, 279–282, 337– Political jurisprudence 10, 51, 56–63, 69– 339, 342, 350–352 73, 77, 84, 105, 147, 167, 260, 262, 266, Marxist turn 114, 116, 184–185, 209, 223 271, 274, 342, 349, 354 n. 343, 289, 335 Positivism Mathiesen, Thomas 11, 178, 197–198, 203, legal 31, 87, 240, 247, 249, 263, 337, 348 206, 209, 224–225, 246, 352 scientific 36–37, 39–40, 147–148, 153, Mattila, Heikki 318–319 162, 169, 175, 182, 247–248, 263 Mazor, Lester 88, 92, 102 Pound, Roscoe 6, 28, 29 n. 24 Merikoski, Veli 292 Poverty 41, 46–47, 69, 73, 108, 116, 117, Metaphysics in law 33, 33 n. 47, 147, 183, 163 188–189, 228, 248, 356 and critical legal scholarship 69, 91, 105, Mikkola, Matti 11, 317–319, 337 115 Miller, Arthur 10, 53, 55 n. 62, 81–82, 84, Private property 34, 75, 128, 172, 215, 88, 104, 104 n. 360 217–218, 220, 222, 236, 284–286, 292, Mills, C. Wright 41 323, 352 Mäenpää, Olli 11, 276–277, 277 n. 139, Process jurisprudence 52, 52 n. 42, 55, 55 279 n. 63, 71, 78, 128 Mäkelä, Klaus 200, 307, 308–310 Reich, Charles 10, 75, 85–86, 86 n. 249, n. Nader, Ralph 10, 81 250, 92 Nelson, Alvar 198, 203, 208 Retfærd 11, 192–194, 226, 244, 347, 349 Neutral principles of law 52–54, 53, n. 46, Riepula, Esko 11, 273–274, 284, 290, 342 n. 48, 59, 82, 103, 125, 172, 178, 221–222, Rissanen, Kirsti 333 347 Roepstorff, Lisbet 189 New Deal 29, 29 n. 25 Rontu, Helge 275, 275 n. 132, 310 New Left 2, 14, 40–43, 44 n. 96, 47–50, 83, Roos, Carl Martin 232 89, 92, 98, 117, 120, 147, 150, 153–154, Rosenblatt, Rand 118, 133 161, 163, 183, 247–248, 253, 351, 354 Ross, Alf 174–5, 175 n. 85, 177, 179, 179 New realism 169, 176–179, 183, 212 n. 104, n. 105, 188, 211–212, 238 Niemivuo, Matti 333 Rylander, Staffan 172, 229

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Salmiala, Bruno 302 Tushnet, Mark 10, 100, 102–103, 106–107, Salomon, Kim 12 118–119, 123, 123 n. 472, 146 Sartre, Jean-Paul 122, 148, 149 Törnudd, Patrik 302, 310–311 Scandinavian studies in criminology 158, 196 Unger, Roberto 10, 94–96, 95 n. 308, n. Scandinavian Studies in Law 158 309, 96 n. 314, 98, 118, 145, 150–151 Schlag, Pierre 148–149 Schubert, Glendon 57, 57 n. 70, 61, 70 Vaajala, Hannu 315 Seidman, Robert 65 Victor, Dag 11, 185, 185 n. 135, 205, 208, Seip, Jens 216–217 241–242 Self-reported crime 109, 201, 301 Vietnam War 43, 45, 48–50, 117, 144, 152, Shapiro, David 106 161, 252 Shapiro, Martin 54, 57, 59 Vikatmaa, Juha 265, 308 Simon, William 132 Sociological jurisprudence 28–29, 31–32, Wanscher, Torben 11, 187 n. 145, 189–191, 34, 51, 57, 63, 65, 69, 98–99, 143–144, 193 n. 181, 243 164, 166–168, 171–173, 176, 178, 182, Warren Court 49, 49 n. 33, 87, 104 184, 194–195, 197, 224, 225, 247, 248, Wechsler, Herbert 52–53, 53 n. 46, n. 48, 259, 273, 279–282, 300, 318, 321–322, 55, 55 n. 62 347, 350, 352–353, 355 Welfare state 75, 159–160, 163, 247, 249, Structuralism 37–39, 93, 147, 231, 276 251–252, 254, 286, 317, 320, 332, 334 and legal scholarship 123, 190, 230, 241– White, G. Edward 13, 144, 146 n. 619, 147 242 Widerberg, Karin 230 Strömholm, Stig 171–172, 181, 235–237 Wilhelmsson, Thomas 233, 321–323 Sundberg, Jacob 244 Sundby, Nils Kristian 11, 180–181, 180 n. Zahle, Henrik 11, 179, 179 n. 105, 191, 107, 212–213, 228, 236, 238–240, 238 n. 234–235, 234 n. 403, 235 n. 404, n. 405 420 Zitting, Simo 256, 256 n. 32, 265 Systemic theory of law 236–237, 241, 277

Tala, Jyrki 303, 322 “Tampere school” 268–269 TANDEM-project 327 Teleological jurisprudence 53, 53 n. 49, 263, 271, 279 Thought collective 8, 346 Thought style 8–10, 8 n. 42, 346 Tidsskrift för folkets rättigheter 226 Tigar, Michael 128 Tolonen, Juha 11, 263, 266, 272, 275–276, 279–280, 342 Trubek, David 54, 66–67, 86, 88, 118–119, 120–121 Träskman, P.O. 308–309, 311 Tuori, Kaarlo 11, 12 n. 51, 293, 295 n. 245, 328–329

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