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Critical Theory, Structuralism and Contemporary Legal Scholarship Critical Theory, Structuralism and Contemporary Legal Scholarship. The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation David W. Kennedy, Critical Theory, Structuralism and Contemporary Legal Scholarship, 21 New Eng. L. Rev. 209 (1986). Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:16084569 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA Critical Theory, Structuralism and Contemporary Legal Scholarship David Kennedy * TABLE OF CONTENTS I. BEFORE CRITICAL THEORY AND STRUCTURALISM ............ 210 II. CRITICAL THEORY .......................................... 216 A. Moments of Reinterpretation........................ 217 B. A Process of Development .......................... 223 C. Critical Theory Refuses Positivism and Naturalism .... 226 D. Critical Theory Aspires to be Liberating and Cognitive 230 E. The Content and Domain of a Critical Theory ........ 235 F. Critical Theory and the Law ....................... 244 III. STRUCTURALISM . ...................................... 248 A . Linguistics ........................................ 249 B. A nthropology ..................................... 252 C . L iterature ........................................ 259 D . L a w . .. .. 2 6 6 IV. BEYOND CRITICAL THEORY AND STRUCTURALISM ............. 271 A. Some Similarities and Differences ................... 271 B. A Common Problem ............................... 274 C. Some Departures From Critical Theory and Structuralism ..................................... 276 • Assistant Professor of Law, Harvard Law School; A.B., 1976, Brown University; M.A.L.D., 1977, Fletcher School of Law and Diplomacy; J.D., 1980, Harvard Law School; Ph. D., 1984, Fletcher School of Law and Diplomacy. The author would like to thank Nathaniel Berman, Jamie Boyle, David Charny, Clare Dalton, Guther Frankenberg, Jerry Frug, Mort Hor- witz, Duncan Kennedy, Trevor Nagel, Anne Ronnel and Dan Tarullo for their helpful criticism and research assistance. NEW ENGLAND LAW REVIEW [Vol. 21:2 I. BEFORE CRITICAL THEORY AND STRUCTURALISM After several decades of interdisciplinary nourishment, one can hardly pe- ruse a law journal without encountering references to what once seemed the obscure texts of divergent disciplines: economics, sociology, philosophy, anthro- pology, literary criticism and beyond. In the years since the New Deal, legal theory has become more sophisticated and the methods of legal scholarship more eclectic. This article explores this expanding eclecticism by introducing two lines of thought which have influenced some legal scholars who have de- parted from mainstream legal thought: critical theory and structuralism.' I I. The rather summary treatment given these traditions in this article is intended to whet the reader's appetite for further reading. In order to fit these very diverse projects into a single story line, I have not selected texts and authors for consideration primarily for their representative quality or "historical importance." Instead, I have, throughout, indicated other secondary litera- ture which I find useful for readers who seek alternative accounts of these traditions. I have se- lected these works either for their clarity or because they tell a different story about the authors I discuss. My hope is that legal scholars who have not yet dipped into these literatures, but who have been at least somewhat intrigued by recent critical strands of legal scholarship, will go be- yond these secondary accounts to develop their own understanding of the underlying texts. To assist readers who want to go further, I have tried to indicate the major works of authors I discuss as well as essays or portions thereof which I have found particularly accessible. Many legal schol- ars who have relied upon these two intellectual traditions are to be found in the critical legal studies movement. Generalizations about the Conference on Critical Legal Studies, founded in 1977, are difficult. The conference has no definitive methodological approach but rather seems a somewhat unstable coalition of legal academics united by their commitment to a form of radical eclecticism reappraising basic approaches to legal scholarship. Some of the conference's work seems grounded in Legal Realism. See, e.g., Freeman, Truth and Mystification in Legal Scholar- ship, 90 YALE L.J. 1229, 1230, 1233 (1981) [hereinafter Freeman, Truth and Mystification]; Parker, The Past of Constitutional Theory and Its Future, 42 OHIO ST. L.J. 223 (1981); Tushnet, Post-Realist Legal Scholarship, 15 J. Soc'Y PUB. TCHRS. L. 20, 21 (1980). The intellectual legacies of the school extend beyond Legal Realism and include inter alia: (l) Marxism, see, e.g., Fraser, The Legal Theory We Need Now, 40-41 SOCIALIST REV. 147 (1978); Klare, Law-Making as Praxis, TELOS (no. 40) 123 (1979); (2) New Left anarchism, see, e.g., DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM (1983); (3) Sartrean existentialism, see. e.g., Gabel, Intention and Struc- ture in Contractual Conditions: Outline of a Method for Critical Legal Theory, 61 MINN. L. REV. 601 (1977); (4) Structuralism, see infra notes 90-143 and accompanying text; (5) Neo-Progressive historiography, see. e.g., M. HORWITz, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 (1977); (6) liberal sociology, see, e.g., Galanter, Why the "Haves" Come Out Ahead: Specula- tions on the Limits of Legal Change, 9 LAW & Soc'Y REV. 95 (1974); (7) radical social theory, see, e.g., R. UNGER, KNOWLEDGE AND POLITICS (1975); R. UNGER, LAW IN MODERN SOCIETY (1976); and (8) empirical social science, see, e.g., Macaulay, Private Legislation and the Duty to Read - Business Run by IBM Machine, the Law of Contracts and Credit Cards, 19 VAND. L. REV. 1051 (1966); Trubeck, The Construction and Deconstruction of a Disputes-Focused Ap- proach: An Afterword, 15 LAW & SoC'Y REV. 727 (1981). For a more extensive list of the writ- ings of the critical school, see A Bibliography of Critical Legal Studies, 94 YALE L.J. 461 (1984). Much of the scholarship of this group develops a critique of the legal discourse of "rights." See, e.g., Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057 (1980); Gabel, Reification in Legal Reasoning, 3 RES. L. & Soc. 25 (1980); Klare, Labor Law as Ideology: Toward a New Historiography of Collective Bargaining, 4 INDUST. REV. L.J. 450 (1981); Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. REV. 29. This strand of the movement is associated with a critique of legal scholarship which is not 1985-19861 CRITICAL THEORY argue that although these complementary disciplines provide useful leverage against liberal legal thought, in many ways their use in legal scholarship has repeated the difficulties which motivated their importation. The final section of the article suggests that the diverse work of "post-structuralists" might prove suggestive and provocative for legal scholars who have heretofore foraged in critical theory and structuralism. Legal scholars who look to the literatures of critical theory2 and struc- turalism' share a sense of the difficulties faced by contemporary legal scholar- ship. Indeed, their perception of the problems faced by post-war legal scholars differs very little from the perception of other scholars who have turned to foreign disciplines. All seem to feel that legal theory and doctrine have become increasingly fragmented since the era of realist scholarship before the Second World War. Although legal theory and doctrine have become more pervasive over the past decades, they seem paradoxically also to have become weaker and less persuasive. Doctrinal argument seems increasingly complex and ever less able to determine outcomes. The normative moorings of the most basic doctrinal discourse by lawyers, scholars and judges seem infirm. Despite their contin- ued, if muted claims to account for events and behavior either proscriptively or prescriptively, legal principles, rules and policy arguments seem to dissolve far too easily into thin disguises for assertions of interest. The more diverse the sphere of an argument's application, the thinner it seems to become until its manipulability becomes more apparent than its persuasive clout. The result has been ever more polarized arguments, ever more sophisticated doctrinal di- directed at breaking down this ideology. See, e.g., Freeman, Truth and Mystification, supra note I; Gordon, Historicism in Legal Scholarship, 90 YALE L.J. 1017 (1981); Trubek, Scholars in Self-Estrangement: Reflections on the Crisis in Law and Development Studies in the United States, 1974 WIs. L. REV. 1062 [hereinafter Trubek, Scholars in Self-Estrangement]; Tushnet, Legal Scholarship; Its Causes and Cures, 90 YALE L. J. 1205 (1981). This strand of the move- ment exists in some tension with more program-related strands. For a fuller discussion of these splits, see Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. PA. L. REV. 685 (1985); Critical Legal Studies Symposium, 36 STAN. L. REV. I (1984). The movement has devoted some attention to criticism of law and economics from both directions. See, e.g., Baker, Starting Points in the Economic Analysis of Law, 8 HOFSTRA L. REV. 939 (1980); Horwitz,
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