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.

Catharine MacKinnon’s Feminist Jurisprudence In The Classroom

Next week, students in my Philosophy of Law class will read and discuss Catharine MacKinnon‘s ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence‘  (Signs, Vol. 8, No. 4 (Summer, 1983), pp. 635-658). MacKinnon’s writings have featured once before on my reading lists–for my graduate ‘Nature of Law’ seminar at the City University Graduate Center in 2015. She is always a teaching challenge: she is provocative, invariably evoking strong reactions from her readers, and often, a dense read. No matter what the class’ reaction to the assigned reading as students read it on their own, I’m reasonably hopeful that passages like the following will provoke discussion when we gather in the classroom:

Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as  valid the experience of women, the major content of which is the devalidation of women’s experience.

This defines our task not only because male dominance is perhaps the most pervasive and tenacious system of power in history, but because it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its  control as the definition of legitimacy. Feminism claims the voice of women’s silence, the sexuality of our eroticized desexualization, the fullness of “lack,” the centrality of our marginality and exclusion, the public nature of privacy, the presence of our absence. This approach is more complex than transgression, more transformative than transvaluation, deeper than mirror-imaged resistance, more affirmative than the negation of our negativity. It is neither materialist nor idealist; it is feminist. Neither the transcendence of liberalism nor the determination of materialism works for us. Idealism is too unreal; women’s inequality is enforced, so it cannot simply be thought out of existence, certainly not by us. Materialism is too real; women’s inequality has never not existed, so women’s equality never has. That is, the equality of women to men will not be scientifically provable until it is no longer necessary to do so. Women’s situation offers no outside to stand on or gaze at, no inside to escape to, too much urgency to wait, no place else to go, and nothing to use but the twisted tools that have been shoved down our throats. If feminism is revolutionary, this is why.

I hope to write here next week on the how the classroom discussion went.

A Persistent Difficulty In Teaching Philosophy Of Law

This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.

On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.

But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)

I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their  laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural  law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.

Thus far, I have not succeeded in making myself clear though. I’ll keep trying.

Anticipating Another Encounter With Books And Students

This coming fall semester promises to be a cracker: I have the usual heavy teaching load of three classes (including two four-credit classes whose lectures will be one hundred minutes long, thus making for a very exhausting Monday-Wednesday sequence of teaching running from 9:05 AM to 3:30 PM, with an hour break between the second and third class meetings); and I will be trying to make some headway on a pair of manuscripts, both due next year in May and August respectively (one project examines the Bollywood war movie and the Indian popular imagination, another conducts a philosophical examination of the Indian film director Shyam Benegal’s work.)

The three classes I will be teaching this semester are: Social Philosophy, Philosophy of Law, and Landmarks in the History of Philosophy. The following are their reading lists: the first two classes below feature my favored kind of reading assignments–pick a few select texts and read them from cover to cover; this is a slightly risky move, given that my students–and  I–might find out, together, that the text is ‘not working.’ For whatever reason; some works do not bear up well under closer inspection in a classroom, some material turns out to be tougher to teach and discuss than imagined, and so on. When it works though, a detailed and sustained examination of a philosophical work pregnant with meaning can work wonders, allowing my students and I to trace the various strands of complex arguments at leisure, drawing out their many interpretations and understandings as we do so.

Social Philosophy: 

Hannah Arendt, The Human Condition, University of Chicago Press; 2nd ed., 1998,

Herbert Marcuse, One-Dimensional Man, Routledge Classics,

Sigmund Freud, Civilization and its Discontents, W. W. Norton & Company, 1989,

Landmarks in the History of Philosophy:

William James, Pragmatism, Dover, 1995

Mary Wollstonecraft, A Vindication of the Rights of Woman, Dover, 1996,

Thomas Szaz, The Myth of Mental Illness, Harper Perennial

Philosophy of Law: 

‘The Case of the Speluncean Explorers’ by Lon Fuller (to introduce my students–briefly and vividly, hopefully–to theories of natural law, positivism, and some tenets of the interpretation of legal texts.)

HLA Hart, ‘On Primary and Secondary Rules’

Justice Oliver Wendell Holmes, ‘The Path of the Law’

David Caudill and Jay Gold, Radical Philosophy of Law

Besides these three classes, I will also be conducting an independent study with an undergraduate student on the relationship between Nietzsche’s writings and Buddhism; this promises to be especially fascinating. The following is the list of books my student and I will work through over the course of the semester:

Nietzsche and Buddhism: A Study in Nihilism and Ironic Affinities

Nietzsche and Zen: Self Overcoming Without a Self 

Nietzsche and BuddhismProlegomenon to a Comparative Study

Nietzsche and Buddhist Philosophy

Every semester, as always, brings on that same trembling anticipation: books and students and all the promises those encounters hold–the revelations, the surprises, the discoveries, the missteps. What a great way to spend one’s waking hours; I will have ample opportunities to count my blessings in the weeks that lie ahead.

James Cozzens On The Supposed Theater Of The Law

In The Just and the Unjust (Harcourt Brace Jovanovich, New York, 1942, p. 9) James Gould Cozzens writes:

It might be argued that providing spectacles was not now, or ever, the office of a court of law. Good in theory, in practice these arguments overlooked the fact that spectators made anything they watched a spectacle, and those who performed public duties before an audience became willingly or unwillingly actors, and what they did, whether they wanted it or not, became drama. Involuntarily an actor, Abner could not be unconscious of his audience’s expectations, nor unaware that his audience was finding the performance, of which he was part, a poor show compared to what true drama, the art of the theater or the motion picture, had taught them to expect.

Art would not take all day Monday to get a jury. Art never dreamed of asking its patrons to sit hour after hour over an impossible-to-hear lawyers’ colloquy, with no action but the self-conscious walking down of person after person from the panel of petit jurors as the names were called.

Law is commonly described as drama, spectacle, and performance art. As Cozzens notes, one part of this identification is relatively facile: legal affairs are conducted and enacted in public spaces by its agents; they, in turn, keenly aware of the spectators’ gaze involuntarily play to these galleries; and so we have a public, dramatic performance of matters of–sometimes–life and death. In these passages, Cozzens makes note of this common suggestion and dismisses it. His rejection of this identification relies on a commonly noted feature of the law: it can be exceedingly and pointlessly tedious and inefficient.

Law’s spaces–its courts–are indeed dramatic venues as are its trappings: the robes of the judges, the declamations of the bailiffs; the solemn swearings in. But the procedures of law, the specifications of legal business can and is to be conducted, while setting up constraints for the behavior of legal actors both include and exclude too much. They make possible too much interference by legal actors with ‘directors’ cues’; they allow for all manner of interruption of the ‘main act.’ Sometimes all is pantomime as prosecutor and defense spar with the judge in a sidebar conference; sometimes procedural constraint blocks the introduction of dramatic new evidence; there is all too much sand that may be thrown in the wheels of a legal drama. Imagine, by way of an analogy, that a theater performance or a poetry reading is interrupted frequently to adjust the lighting or the sound: technicians rush on stage, the actors cease speaking and wait patiently, the poet halts mid-stanza. Too many of these and the spectators may well head for the exits.

But perhaps legal drama is distinct in that its interruptions and inefficiencies are only imagined as such; they are part of the drama and must be viewed as such. They are not bugs; they are a feature. If so, the nature of the legal drama has been perhaps misunderstood by Cozzens above.  Not all drama or theater or all motion pictures entertain and edify in precisely the same way; some, in order to make us experience a distinctive qualitative aspect of life must incorporate those features. Perhaps law’s dramatic purpose in these tedious inefficiencies is to bring us face to face with their undying presence in our lives, to make us aware of just how much of our lives is lived in precisely that same fashion as the law conducts itself.

Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

I taught Antonin Scalia‘s writings–as found in his court opinions–on three occasions in my philosophy of law class. His theory of constitutional interpretation–originalism–was incoherent. His aggressive rhetoric, directed at those who would dare petition the highest court of the land for redress, was tasteless. He was a bully, and a blowhard. Like Christopher Hitchens, he will be revered by many whose taste runs to the skillful deployment of language for the belittling of others. Among the most frequent targets of scorn were his colleagues on the Supreme Court, who were always unfailingly polite to him, and were rewarded with ample sarcasm and invective. His judgments frequently crushed the weak, denied hope to the condemned (I suspect nothing made Scalia quite as tumescent as denying a stay of execution for someone on death row), and scorned the cries for justice issuing from those who had found themselves on the wrong side of the power equations Scalia found written into the US Constitution.

Because that, in a nutshell, mostly, was Scalia’s theory of constitutional interpretation. Originalism, “the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution,” relies on a wholly imaginary “original understanding”–the attempt to determine and ascertain it convinces, all too soon, those who would so try, that the effort is futile. The best analysis of the futility of such a determination may be found in Paul Brest‘s analysis in  The Misconceived Quest for the Original Understanding. Hint: Whose understanding? Do ratification votes capture ‘understanding’ or do they point to clumsy off-stage power negotiations? And so on.

Originalism, as a political theory of legal interpretation, is generally chosen by those who would like to preserve very particular power relations, those present at the time of the drafting of the US constitution. An ‘originalist’ is a fancy term used to describe those who would prefer the world of 1787, and all the limited political and moral understandings that underwrote its legal arrangements. Those original relations, which did not acknowledge or recognize slavery or the political rights of women, eminently suit the continued maintenance and perpetuation of very particular hierarchies of power.

Those are the ones Antonin Scalia wanted to preserve. He was a true-blue conservative, a hierarchy-loving reactionary who shivered when he contemplated the masses rising up –in any shape, form, or fashion. He was no champion of the people; his writings reeked with contempt for them. (I can remember him caring about the voice of the people when pro-life protesters tried to infringe on the constitutional rights of those who wanted to have an abortion.) When all the fancy dressing of the elaborate rhetoric that Scalia deployed was stripped away–in cases that most starkly brought the legally dispossessed into conflict with those well entrenched in power, corporate or state-what always stood revealed was a veneration of power and fury at those who had dared challenge it.

It’s perfectly alright to speak ill of the dead when they were public figures. Scalia sent many to their deaths, he scorned the struggles of those claiming their legal and political rights; I am not upset his tenure on this earth is over.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.