Critiquing The Law And Discomfort

This semester, in my philosophy of law class, my students and I have attempted to work our way through a collection of ‘critical legal studies‘ articles; these run the gamut from critical legal histories to feminist legal theory to critical race theory. The reactions of my students to these pieces, and in particular to the second and third members of the list just made note of–represented by the writings of Catharine MacKinnon and Alan Freeman respectively–has been instructive.

Feminism makes men uncomfortable; for different reasons, it also makes women uncomfortable. It induces discomfort in men by reminding them of their privileged position of power; it induces discomfort in women by reminding them of this imbalance, and sometimes, of their own complicity in maintaining it. Both these reactions were on display as we read and discussed MacKinnon in class, especially in her claim that the ‘legal point of view’ is just the ‘male point of view.’ Her discussion of rape law, and especially of how the law understands the crucial notion of ‘consent,’ brought vital aspects of her critique together; no other component of her writing, not even the infamous ‘in a patriarchal, sexist society structured by forces of masculine domination, all sex is rape’ claim, made the students as uncomfortable as this discussion; they might have realized their own implication in the critique they were reading. They might also have imagined, like most other legal subjects, that whatever the messiness and infinite complications and entanglements of human sexuality, those were all magically resolved by the cleansing antiseptic force of legal formulations, categories, and reasoning. Not so; instead, seeking refuge in law as a response to the ‘problem,’ the ‘crime,’ of rape had merely allowed for the further institutionalization and entrenchment of sexism and male prejudice, now disguised as societal reason.

Talk of racial discrimination too, especially in a society like the US, induces discomfort. It reminds some that their assumed positions of merit and power rest on shaky, morally suspect, foundations; it serves notice that a dishonorable history underwrites this supposedly glorious present. And as in feminist legal theory, it points to how a supposed dispenser of fairness and justice is instead, in point of fact, the repository and the engine of social prejudice. The rhetoric on display here is similar: a claim is made to the rational dispensation of justice, to only be guided by ‘logic’ and ‘evidence’; the results as in the case of rape law, are eerily similar: claims of racial discrimination disappear when subjected to the inspection of the legal lens; the perspective or point of view of a central actor, the ‘victim,’ is ignored. Here again, an uncomfortable silence descends over many in the classroom; a reminder has been served that the assumption of a calm working out of an impeccable meritocratic logic serves only to mask the violence done to those finding themselves stuck with the short end of the legal stick.

Sometimes my students are curious and ask about what happened to the ‘critical legal studies movement’; I respond that the discomfort they experienced as ‘mere’ legal subjects in attempting to tackle its claims would only have been a  fraction of that experienced by those on the inside: the practitioners and theoreticians of law themselves. They would have actively sought to assuage their discomfort; the institutional displacement of critical legal studies would have suggested itself as a possibly remedy.

Critical Theory And The Supposed Post-Truth Era: The Ideological Reaction

The tools that critical theory provides enable the undermining and subversion of established structures of power–political, cultural, discursive, technical, material, governmental, architectural, scientific, moral. They expose ideological pretensions and foundations, thus making it possible to see that all that is seemingly permanent and absolute may rest on evanescence. on historical contingency and accident and luck; they enable a corrosively suspicious response to any claims to political virtue. Critical theory is subversive; it should induce a kind of vertigo of possibility, one tinged with both fear and excitement; moreover, if the kind of critical position it points to is available for all dominant systems of cultural and political and intellectual formations, then it should also induce a fierce counter-reaction to its ‘revolutionary’ possibility, a co-opting of its ‘tools’ to be used against it. That is the least you would examine of any sophisticated ideology with a track record of survival; the ability to utilize the features of its opponents to undermine it.

The current brouhaha about how postmodernism made the Donald Trump presidency possible, by clearing the decks for fake news and alternative facts and truth-free daily briefings for the White House Press Corps and Pinocchio-inspired press spokespersons, by inspiring disrespect for ‘truth’ and ‘justification,’ is part of this counter-reaction. It is perfectly predictable; when those in power are subjected to the critique that their claims carry with them their pretensions to power, that they are invested with their own selfish material interests, that their philosophies are but their autobiographies, they will use those critical tools against the critique itself.

The suggestion that tools of critical analysis, the ones used to unmask pretensions of power, are the ones used to prop up an authoritarian regime that plays fast and loose with ‘facts’ and ‘truth’ and all of the other components of a realist, respectable, scientific, naturalistic epistemology is a reactionary one; and a predictable one too. It is of a piece with all those claims that point out problems with the form and content of protests; never the right time, never making its points in the right way, or speaking at the right volume. When directed at critical theory, this reaction says that your kind of protesting, its form, its methods, its techniques have resulted in the creation of a new and deadlier political and cultural monster; cease and desist with your critical analysis at once. It suggests that our tools are being used against us; we should lay them down at once; we should exert no other form of critical analysis to help us make political, cultural, or epistemic judgments. We should have known all along what was coming at the terminus of this ‘critique’: the claim that power in place should not be criticized, that critique has gone bad.

The perfect predictability of this ideological maneuver makes its deployment unsurprising; the personnel recruited for it–philosophers and journalists–are also the expected ones. Their easy acquiescence might be a little worrisome, of course, but all kinds of resistance breaks down when power comes calling.

Horkheimer And Adorno On The ‘Convergence’ Of Art And Science

In Dialectic of Enlightenment: Philosophical Fragments (University of Stanford Press, Cultural Memory in the Present Series, ed. Gunzelin Schmid Noerr, p. 13, 2002) Max Horkheimer and Theodor Adorno write:

The prevailing antithesis between art and science, which rends the two apart as areas of culture in order to make them jointly manageable as areas of cultures, finally causes them, through their internal tendencies as exact opposites, to converge. Science in its neopositivist interpretation, becomes aestheticism, a system of isolated signs devoid of any intention transcending the system; it becomes the game which mathematicians have long since proudly declared their activity to be.  Meanwhile, art as integral replication has pledged itself to positivist science, even in its specific techniques. it becomes indeed, the world over again, an ideological doubling, a complicated reproduction.

Physics and mathematics are often said to find a merger of sorts in string theory, whose speculations dabble in dimensions galore and disdain empirical confirmation. Here, physicists may be found approaching registers of speech only thought to be found in ‘pure’ mathematicians; their work appears to be exclusively concerned with, and expressed through, sign and symbol; the beauty of their creations could be assessed as works of theoretical art. Within such an evaluative dimension might lie string theory’s most coveted prize, once it has disdained the grubby business of verification and correspondence. The arc nears completion here. Elsewhere, art is condemned to realist reproduction, censured for flights of irresponsible fancy. It is asked to leave behind its critical and absurdist and skeptical being in favor of one more firmly anchored in the here and now, all the better to clone it, and faithfully and apologetically do its bit for its continued propagation; art is informed of the need to be reactionary. Such critiques might sound old-fashioned to the worldly-wise in the twenty-first century, but they are never too far from the surface when worries about self-indulgent or narcissistic or navel-gazing art are periodically expressed.

As can be seen, the situation that Horkheimer and Adorno described is as present today as it was when their words were originally penned. Realist art and aestheticist science still converge; the former is urged to stick to the sensible and the apprehensible; the latter seeks to move away from tedious correspondence and to go on flights of symbolic fantasy.  Horkheimer and Adorno urged this observation upon us to make us notice its ideological import: science becomes exclusively positivist, unconcerned with intervention; art becomes implicated in the ‘realities’ it seeks to depict. The standpoint of critique is  lost; science and art are enlisted as allies through various understandings that are not normatively neutral. This ideological maneuver is especially acute because science aspires to epistemic hegemony via its apparent commitment to realism and art aspires to radical critique through its lack of fidelity to that same standpoint. The ‘real’ aspires to fantasy; the fantastic is instructed to conform to the ‘real.’ Both are defanged and removed from the realm of critical theory and its interjections into the world of politics and society.