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Critical Legal Studies: the Ed Ath of Transcendence and the Rise of the New Langdells Joan C

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Critical Legal Studies: the Ed Ath of Transcendence and the Rise of the New Langdells Joan C University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1987 Critical Legal Studies: The eD ath of Transcendence and the Rise of the New Langdells Joan C. Williams UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Jurisprudence Commons Recommended Citation Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells, 62 N.Y.U. L. Rev. 429 (1987). Available at: http://repository.uchastings.edu/faculty_scholarship/822 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Williams Joan Author: Joan C. Williams Source: New York University Law Review Citation: 62 N.Y.U. L. Rev. 429 (1987). Title: Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells Originally published in NEW YORK UNIVERSITY LAW REVIEW. This article is reprinted with permission from NEW YORK UNIVERSITY LAW REVIEW and New York University School of Law. NEW YORK UNIVERSITY LAW REVIEW VOLUME 62 JUNE 1987 NUMBER 3 CRITICAL LEGAL STUDIES: THE DEATH OF TRANSCENDENCE AND THE RISE OF THE NEW LANGDELLS JOAN C. WILLIAMS* Critical legal scholars' claims that law is ideological and indeterminatehave provoked criticismfrom many sources. Arguing that earliercriticisms of CriticalLegal Studies (CLS) have not understood its significanceas reflecting major currents of twentieth- century thought, Professor Williams putsforward her own critiqueof CLS. She traces a broad range of developments in fields as disparate as physics, anthropology,philoso- phy, and art, and shows how each field reflects a new epistemology that rejects tradi- tional certaintiesand objective truths. CLS's significant contribution is that it seeks to incorporate the new epistemology into law. Yet, Professor Williams criticizes major themes in CLS as inconsistent with the new epistemology, arguing first that CLS's structuralist analysis of law assumes that CLS has access to objective, fundamental truths. Professor Williams also challenges CLS claims that law is ideologicaland in- determinate. Drawingon Ludwig Wittgenstein'sphilosophy, Professor Williams main- tains that, despite the lack of an absolute, objective meaning, languagefixes meaning sufficiently that legal doctrine provides a framework for a particularkind ofpolitical discourse. In the absence of absolutes, she concludes, the new epistemology teaches us that we must take responsibilityfor the ethical choices embodied in it. INTRODUCTION In the 1870s, Christopher Columbus Langdell mobilized the most prestigious sources of intellectual authority available to build a jurispru- * Associate Professor of Law, American University. B.A., 1974, Yale University; J.D., 1980, Harvard University; Master of City Planning, 1980, Massachusetts Institute of Technol- ogy. I am indebted for comments on prior drafts to Carol M. Rose, Robert G. Vaughn, James X. Dempsey, and Sarah Williams. Special thanks to Frank I. Michelman. Though he often did not agree with my conclusions, my work has benefited immeasurably from his incredibly close attention. I also thank Stephen Fotis, Patrick Dahlstrom, Anna Chytla, and Doris Masse for expert research assistance and intellectual companionship over a period of several years. This research was generously supported by the American University Research Fund. 429 HeinOnline -- 62 N.Y.U. L. Rev. 429 1987 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 62:429 dence and an educational program around the model of science.' The strategy proved extraordinarily effective. 2 Over 100 years later, virtually every law school still uses Langdell's "Harvard model" despite the fact that its central tenets no longer seem persuasive. 3 Today, Critical Legal Studies (CLS) 4 is attempting a project as am- bitious as Langdell's-to reinterpret law and legal education in the con- text of the most prestigious and authoritative intellectual currents available. These currents of thought are different from those of Lang- dell's day. Traditional epistemology,5 with its belief in the existence of transcendent, objective truth, has been replaced in the twentieth century by a "new epistemology,"'6 which rejects a belief in objective truth and I See R. Stevens, Law School-Legal Education in America From the 1850s to the 1980s 52-55 (1983). Langdell explicitly linked science and intellectual dignity. "If law be not a science, a university will best consult its own dignity in declining to teach it. If it be not a science, it is a species of handicraft, and may best be learned by serving an apprenticeship to one who practices." Id. at 52. For a discussion of the elitist motivation behind the need to define law as a science rather than a "species of handicraft," see id. at 92-111; J.Auerbach, Unequal Justice 75-80 (1976). 2 See R. Stevens, supra note 1, at 64, 123. 3 The claim that law is a science, and that the case method helps students to discover its principles inductively, began to be challenged as early as 1920. Id. at 134. The case method has survived, however, in large part because "[it] held a trump card-finance. The vast suc- cess of Langdell's method enabled the establishment of the large-size class." Id. at 63. 4 Like legal realism, CLS represents at most a general outlook rather than a unified body of thought. Id. at 155. 5 The term "epistemology" is commonly used to describe the branch of philosophy that inquires into the nature and validity of knowledge. See R. Chisholm, Theory of Knowledge 1- 4 (1966) (discussing the basic concerns of epistemology). This branch of philosophy is the foundational discipline that replaced metaphysics as the "queen of sciences," beginning in the seventeenth century with the French philosopher Ren6 Descartes and culminating in the late eighteenth century with the German philosopher Immanuel Kant. R. Rorty, Philosophy and the Mirror of Nature 132-38 (1979). Rorty writes: "The theory of knowledge [is] the search for that which compels the mind to belief as soon as it is unveiled. Philosophy-as-epistemology [is] the search for the immutable structures within which knowledge, life, and culture must be contained." R. Rorty, supra, at 163. Rorty asserts that philosophy has rid itself of the assumption that any such framework necessarily exists. Id. at 315; see also R. Bernstein, Philosophical Profiles 33-38 (1985) (ex- ploring Rorty's version of the collapse of epistemology). The term "metaphysical" refers to the nature of reality beyond the world of physical appearances. Metaphysics, the search for first principles, was traditionally considered the core of philosopy. For a more detailed account of the issues and history of metaphysics, see Intro- duction to Aristotle (R. MeKeon ed. 1947); R. Collingwood, An Essay on Metaphysics (1940); E. Coreth, Metaphysics (1968). 6 To avert cries of reification, let me state explicitly that I am not asserting that the new epistemology is an objective thing that exists in the outside world. Rather, I am offering a new reading of well-known texts to suggest that connections formerly thought unimportant (or nonexistent) are in fact interesting and instructive. Translating Rorty's terminology into my own, he uses the term "epistemology" to refer to what I call "the picture theory" or the "old epistemology," and the term "hermeneutics" to indicate the set of intellectual tendencies that fall within the rubric of the "new epistemology." Rorty cautions, however, that "use of the terms epistemology and hermeneutics to stand for HeinOnline -- 62 N.Y.U. L. Rev. 430 1987 Imaged with the Permission of N.Y.U. Law Review June 1987] CRITICAL LEGAL STUDIES the claims of certainty that traditionally follow. 7 The new epistemology describes a broad shift in the theory of knowledge; it has permeated such diverse fields as mathematics, physics, anthropology, and literary criticism. Most critical responses to CLS to date have not grasped the impor- tance of its contribution to legal thought. Progressives 8 outside CLS have rarely responded at a level of sophistication equal to that of the most sophisticated critical legal scholars. 9 For example, one of the best known critics of CLS, Dean Carrington of Duke University, has argued simply that CLS, like other schools of thought based on what he sees as "nihilism," is irrelevant to the proper mission of law schools. 10 Anyone interested in pursuing CLS's intellectual project, Carrington has argued, belongs in a graduate school setting.11 This Article responds to that critique by tracing the gradual assimi- lation of the new epistemology into American thought in order to show how the rejection by critical legal scholars of law's traditional claim to objectivity reflects major currents in twentieth-century thought. When these ideal opposites may seem forced." R. Rorty, supra note 5, at 318. 7 CLS has its own version of the relationship between law and the new epistemology, which goes something like this: In the beginning was classical legal thought, the jurisprudence of the Lochner Court, which treated legal reasoning as objective and as a matter of pure deduc- tion from highly abstract principles. Cf. Lochner v. New York, 198 U.S. 45 (1905). Then, both the jurisprudence and the politics of the Lochner Court were overthrown by the legal realists of the 1920s and 1930s, who rejected the claims of classical legal thought to objectivity, and acknowledged that law has stronger links to politics than it has to logic. But in the pro- cess of exposing the flaws of classical legal thought, legal realists came face-to-face with the internal contradictions of the liberalism they espoused.
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