Critical Theory And The Nature Of Law

My graduate seminar on ‘The Nature of Law‘ read and discussed critical race theory this past week. I’ve–along with my students–been thinking about the relationship of critical material like this–along with the critical legal studies readings we did over the last two weeks–to the definitional and foundational debates that so occupied us in the beginning of the semester. Certainly, we seemed to be distant, in our concerns and preoccupations, from the question of what law is ‘–at least in the way that, for instance, the folks engrossed in the natural lawpositivism debate were. In one dimension. For instance, precisely because critique seizes upon normative failings, we were often discussing what the law ought to be as opposed to what it is. But in another, we aren’t.

For note that in providing the sort of critique critical race theory and critical legal studies are advancing,  the kind that informs us it is an agent of social construction and reification, an instrument of ideological control, a diversion away from radical political and social change, toward change more palatable to the established orders, we are also being told a great deal about what the law is not. It is not an impartial dispenser of justice, and neither is it a reliable instrument of social change. The critical race theorist is able to remind us of law’s limitations and circumscriptions: the inability of its remedies to redress some kinds of particularly pernicious wrongs, its helplessness in the face of entrenched, ‘internal’ racism, the kind which deeply implicates every social, political, and economic reality it interacts with, its being frozen into accepted trajectories of reasoning and categorization that prevent it from playing the kind of role most optimistically envisaged for it by a certain species of liberal theorizing. For instance, the critical race theorist’s advancement of an argument for reparation shows how current legal reasoning and analysis is inflexibly locked into presumptive modes of inquiry and understanding about guilt, responsibility, and even the ontology of groups and persons, that lead to a reflexive rejection of such claims. Law constructs many social facts, and there are many others that construct it in turn.

The critical theorist also–most crucially–adds color and depth to the earlier bloodless debates about whether law is understood as a system of rules, the command of a sovereign or the imperfect realization of a social morality. Critical theory informs us that the identity, the placement within social and political orderings and hierarchies, of legal actors–and those subject to them–is a crucial determinant of the content of law; it is a crucial force in determining the trajectories and workings out of a legal system. (Feminist legal theorists, who we will begin reading in two weeks time, will obviously bolster such identification.)

The nature of law remains crucially undertheorized unless its definitions are bolstered by critique. For it is only by means of the latter that the history of law can be seen and examined. And that, of course, is how we bring its coherence and incoherence to light.

Beware the Easily Defined Philosophical Term

Over the course of my philosophy career, I’ve come to realize I sometimes use technical philosophical terms without an exceedingly determinate conception of their precise meaning. But I do, however, know how to use them in a particular philosophical context that will make sense to an interlocutor–reader, discussant, student–who has a background similar to mine. (Perhaps this is all that is required with just about any word? What more could be required after all? But I digress.) Thus, I muddle through, talking about philosophy, writing on it, teaching it, debating it. Heck, I’ve made a career out of it.

A classic example of an ambiguous, yet useful and widely used term is ‘humanism.’ I made heavy use of it in the first paper I wrote in graduate school, in a paper on Marx and Feuerbach‘s views on religion. I described Marx and Feuerbach (and possibly Hegel) as humanists, referred to the Young Marx as an arch-humanist in distinguishing him from the Later ‘Das Kapital‘ Marx, and so on. Over the years though, I’ve come to sense that I don’t have a real handle on the term other than to say it refers to ‘human-centered philosophies.’ When asked to explicate that term, I launch into various examples: early Marxism, existentialism, secularism–stress its affinities–philosophical naturalism, for instance–and point to other schools of thought that employ the term, like, say, renaissance humanism. Within the context of these examples, I am then able to try to clarify what is meant by ‘human-centered.’ This past fall, when introducing students to existentialism via Sartre–besides the obvious import of the slogan that ‘(human) existence precedes (human) essence’–I stressed his claim that Sartrean existentialism is humanism because it emphasizes, centrally, the human freedom and ability to make choices. And as I’ve mentioned affinities above, it is worth mentioning humanism’s affinities with pragmatism. In particular, William James, who took ‘humanism’ to describe his pragmatism, offers us some wonderful characterizations of it:

[I]t is impossible to strip the human element out from even our most abstract theorizing

[T]o an unascertainable extent our truths are man-made products.

The ambiguity of philosophical terms should not be too shocking: many philosophical terms have been employed in a wide variety of disciplinary contexts; they have extensive histories of usage and thus resist precise definition (as Nietzsche usefully pointed out a long time ago); they are used to clarify, extend, and resolve philosophical debates in more than one arena of disputation; sometimes, they are drawn from different languages and then encountered in translation; they often enjoy extensive deployment in non-philosophical contexts, and thus create ambiguities between antecedent and  current usage. Furthermore, philosophical traditions that stress conceptual analysis can sometimes exacerbate the confusion: by emphasizing necessary and sufficient conditions for usage, they risk smoothing out, by force and fiat, the rough, serrated edges of meaning that make the term as useful and ubiquitous as it has been.

A philosophical term that is all too easily defined should make us just a little suspicious about its  usefulness.