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Critical Legal Theory and Local Social Thought

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Critical Legal Theory and Local Social Thought University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 133 APRIL 1985 No. 4 THE POLITICS OF REASON: CRITICAL LEGAL THEORY AND LOCAL SOCIAL THOUGHT JAMES BOYLEt TABLE OF CONTENTS INTRODUCTION .................................... 687 I. THE LINEAGE OF THEORY .......................... 691 Q Copyright 1985 by James Boyle. All rights reserved. t Assistant Professor, Washington College of Law, American University. LL.B. 1980, Glasgow University; LL.M. 1981, Harvard University. Some of the research for this project was completed while I was a Frank Knox Fellow at Harvard Law School. The Washington College of Law Research Fund gave valuable assistance throughout the preparation of the manuscript. Parts of this Article were prefigured in a set of introductory materials prepared for the Eighth National Conference on Critical Legal Studies, held in Washington, D.C., March 15-17, 1984. I would like to thank everyone who took the time to make comments on those materials. In particular, Anthony Chase and L.H. LaRue gave me the benefit of thoughtful written criticisms. Mark Tushnet, Burt Wechsler, and the rest of the D.C. Planning Group helped with suggestions, en- couragement, and deadlines. Andy Lichterman taught me about Habermas, and Gun- ther Frankenburg gave me the (probably misplaced) confidence to write about him. The Kennedys, Duncan and David, provided more help and support than I can ac- knowledge here. Gary Peller supplied endless reassurance, adrenalin, friendship, and a vision of Lukacs "on the wild side." He was also kind enough to show me his (as yet unpublished) manuscript, The Metaphysics of American Law, which greatly influenced this Article. Deborah Rhode, Bill Simon, David Trubek, Toni Pickard, Frances Mo- ran, and Mark Tushnet were kind enough to comment on an unfinished draft. My colleagues at Washington College of Law gave helpful suggestions, and my jurispru- dence students inspired me. Don Pongrace researched expertly. Errors are mine. (685) 686 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 133:685 A. Introduction ............................... 691 B. Legal Realism .............................. 691 1. Introduction ............................ 691 2. First Trace: Neutral Law and Legitimation .. 696 3. Second Trace: Technocracy and Legitimation. 697 4. Third Trace: Contemporary Legal Scholarship and the Concept of Reason ................ 702 5. Summary .... : ......................... 705 C. Linguistic Theory ........................... 708 1. Introduction ............................ 708 2. First Trace: The Two-Edged Sword of Anti- Essentialism ............................ 713 3. Second Trace: Varieties of Irrationalism ..... 715 4. Third Trace: Reification in Legal Reasoning. 718 5. Summary .............................. 720 D. M arxist Thought ............................ 721 1. Introduction ............................ 721 2. First Trace: From Conspiracy Theory to Rela- tive Autonomy (and Back Again?) .......... 722 3. Second Trace: The Irrationalist Ap- proach-Sturm und Drang, Mush, and Zap. 725 4. Third Trace: Consciousness and Closure ..... 727 5. Summ ary .............................. 730 E. Conclusion ................................. 730 II. LINKING UP THE TRACES ........................... 736 A. Introduction ............................... 736 B. Legal Realism .............................. 746 1. Introduction ............................ 746 2. First Trace: Neutral Law and Legitimation.. 747 3. Second Trace: The Critique of Technocracy.. 751 4. Third Trace: Legal Scholarship ............ 753 C. Linguistic Theory ........................... 756 1. Introduction ............................ 756 2. First Trace: The Deep Structure of Liber- alism-Total Critique and Faith ........... 757 3. Second Trace: Phenomenology, Structuralism, and the Limited Sphere ................... 760 4. Third Trace: The Sartrean Synthesis ....... 761 D. Departuresfrom Marxism .................... 762 1. Introduction ............................ 762 2. First Trace: Transformations in Marxist Thought ............................... 763 1985] THE POLITICS OF REASON 3. Second Trace: Irrationalist Legal Thought ... 764 4. Third Trace: Consciousness and Closure ..... 765 E. What the Tension Tells Us ................... 766 F. Dealing with the Tension ..................... 769 1. Immanent Critique and Local Theory ....... 769 2. Mediation and the Theoretical Toolkit ...... 773 CONCLUSION ...................................... 778 INTRODUCTION In this essay I pursue two different and potentially incompatible goals. In the first part of the Article I try to give a sense of the types of theory that are commonly lumped together under the label "critical le- gal scholarship"1 and thus to describe and, to some extent, explain the body of writings produced by the lawyers, law students, and law teach- ers associated with the Conference on Critical Legal Studies (CLS).2 I Most articles describing critical legal theory are more or less straight, discursive accounts of a supposedly unified body of work about doctrinal indeterminacy, legitima- tion, and political action. See sources cited infra note 2. In this essay I have tried to come at the problem from the other end. Instead of searching for a "unified body of work," I offer a fragmentary set of accounts about critical legal theories. Most of the theories are drawn from the publications of those associated with the Conference on Critical Legal Studies (CLS); some are developed from my own teaching and writing. Then, rather than limiting myself to description, I analyze a constitutive tension that runs through critical legal thought and that can be used to understand and to create everyday social theory. I run two major risks by pursuing this descriptive/prescriptive strategy. First, I am stereotyping a body of scholarship that tends to wriggle out of any classificatory structure, and thus I put my friends and colleagues in the Conference into categories with which they are at least unfamiliar and at worst unhappy. Second, I am adopting a structure for the Article that is itself implicated in the dichotomies it dis- cusses: Can one discuss a romantic, avowedly irrationalist phenomenology as an ideal- type? I offer sincere apologies, pleading lack of ability and a Scottish love of both system and contradiction. See, e.g., D. HuME, A TREATISE OF HUMAN NAT-ME (1888). I hope my good intentions, if not my results, will provide an excuse for all of this. 2 For a general exposure to critical legal theory, see THE PoLrrcs OF LAW (D. Kairys ed. 1982), and in particular, Robert Gordon's excellent essay, New Develop- ments in Legal Theory, in id. at 281, which inspired much of this Article. A further exposure to critical legal thought can be gleaned from the book reviews of The Politics of Law. In particular, see Dalton, Book Review, 6 HARV. WOMEN'S L.J. 229 (1983); Forbath, Book Review, 92 YALE L.J. 1041 (1983); Levinson, Escaping Liberalism: Easier Said Than Done (Book Review), 96 HARV. L. Rv. 1466 (1983). It would be lse majest to ignore Note, 'Round and 'Round the Bramble Bush: From Legal Real- ism to Critical Legal Scholarship, 95 HARV. L. REv. 1669 (1982), which does for critical legal studies what lettuce did for Peter Rabbit. Unger, The CriticalLegal Stud- ies Movement, 96 HARV. L. REv. 563 (1983), provides a rare programmatic vision for critical legal theory. See generally Kennedy & Klare, Bibliography of CriticalLegal Studies, 94 YALE L.J. 461 (1984). For an application of some of the ideas developed in this article to theories of personality, see Boyle, Modernist Social Theory: Roberto Un- ger's Passion (Book Review), 98 HARV. L. REv. 1066 (1985). 688 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 133:685 My argument is that all of these theoretical projects share at least a certain assumption about the politics of reason: the social power of ap- parently rational discourse. In the second part of the Article, I try to explain why someone would find it interesting or even liberating to produce this kind of theory or to think this way. Having examined, and rejected, the claim that critical legal theorists can be usefully divided into a rationalist and an irrationalist camp, I offer an alternative heu- ristic tool: the tension in critical legal thought between the subjectivist, personal, phenomenological strand and the structuralist, patterned, im- personal strand. I am happy to say that this tension is absolutely use- less for classifying or categorizing theorists. It does seem, however, to offer some insights on how to theorize. The unifying aim of the Article is to develop a way of thinking that helps us both to confront the stan- dard problems of social thought and to act: to deal with the most mun- dane exercises of power in the workplace as well as the baroque struc- ture of liberal state theory. Consequently, it differs from much of the recent writing about CLS in that my aim is to develop a toolkit for an ongoing project rather than to chronicle the rise of an academic movement.3 One can describe the scholarship produced by those associated with the Conference on Critical Legal Studies in a number of ways. In fact, the multiplicity of theoretical entry points is both a strength and a weakness: the former because of the richness and depth that the schol- arship has acquired and the latter because of the corresponding increase in inaccessibility, paradox, and self-referential obscurantism. From the outside, critical legal scholarship appears to be a strange
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