Critical Legal Studies: the radical assault on truth in American law was already apparent many decades ago
I became interested in Critical Legal Studies long ago, in the 1980s. I had been to law school in the 1970s, so it didn’t affect my own legal education. To the best of my recollection, although my law school had conservative and leftist professors, their politics never entered the classroom. There, it was strictly legal reasoning, and a meritocracy.
Critical Legal Studies changed all that and was alarming right from the start. Twenty years or so ago, I bought a book about it called Beyond All Reason: The Radical Assault on Truth in American Law. It had been published in 1997. Here’s an excerpt, which proves how long ago it was possible to see the writing on the wall for those who were looking. And by the way, co-authors Daniel A. Farber and Suzanna Sherry were liberals rather than conservatives. But they were alarmed nevertheless and wrote this:
We can now summarize the fundamental tenets of the new radical multiculturalism. If the modern era begins with the European Enlightenment, the postmodern era that captivates the radical multiculturalists begins with its rejection. According to the new radicals, the Enlightenment-inspired ideas that have previously structured our world, especially the legal and academic parts of it, are a fraud perpetrated and perpetuated by white males to consolidate their own power. Those who disagree are not only blind but bigoted. The Enlightenment’s goal of an objective and reasoned basis for knowledge, merit, truth, justice, and the like is an impossibility: “objectivity” in the sense of standards of judgment that transcend individual perspectives, does not exist. Reason is just another code word for the views of the privileged. The Enlightenment itself merely replaced one socially constructed view of reality with another, mistaking power for knowledge. There is naught but power.
They saw all of that back then.
The next chapter of the book is entitled “Transforming the Law.” It begins with the idea that these movements in the humanities departments of universities were as yet still limited to the universities, which may have been the case in the 1990s but certainly is no longer true, as graduates of such courses have taken the helm in many professions such as journalism. The authors were correct in stating that when the movement spread to law schools, it became far more influential in the immediate sense.
The rest of the chapter is extraordinarily insightful although hard to summarize, but it describes how the Critical Legal Studies proponents teach that law is about power and so reason has little to no place in it and is merely a convenient facade for power plays. For example, here’s a description of the work of Derrick Bell, the first black law professor to get tenure at Harvard and a very influential voice in the movement:
As Derrick Bell puts it, law is “not a formal mechanism for determining outcomes in a neutral fashion – as traditional legal scholars maintain – but rather a ramshackle ad hoc affair whose ill-fitting joints are soldered together by suspect rhetorical gestures, leaps of illogic, and special pleading tricked up as general rules, all in the service of a decidedly partisan agenda that wants to wrap itself in the mantle and majesty of law.” Specifically, Bell argues that although courts proclaim a veneer of high principle, judges rule in favor of black interests only when the interests of whites are thereby served; the ultimate agenda is white self-interest.
This idea of Bell’s and of Critical Legal Studies in general – that law is a sham and only about power – is an excuse for subsequently making it a sham in pursuit of power, as we see today with lawfare. After all, if law is inherently only about power and always was, why not play the game better and boldly use it to empower your team? Of course, you may sometimes have to pretend to fairness and logic for a while, to fool the plebeians. But the left seems to have given up on objectivity and fairness as a goal for which to strive when dealing with one’s political opponents. People such as Alan Dershowitz, a liberal who still believes in those goals – however imperfectly realized – of legal objectivity and fairness to both sides, are considered dinosaurs at best and traitors at worst to the leftist cause, and have been treated as such by the left in recent years.
These trends in law are the result of close to forty years of careful nurturance, and that has borne very ripe fruit. And no, of course law was never anywhere near perfect, but objectivity and fairness were goals towards which most law professors taught their students to respect and strive, and it was often achieved. There are still some professors of that type around, but they are getting more and more rare, and that is no accident.
CLS began at Haavaad.
From Wiki:
“Duncan Kennedy (born 1942) is an American legal scholar and held the Carter Professorship of General Jurisprudence at Harvard Law School until 2015. Now emeritus, he is best known as one of the founders of the critical legal studies movement.”
CLS was founded some 30-40 years ago. General Jurisprudence? Really? The poisoning of young legal minds.
Laws have always been about making criminals out of subjects and/or fellow citizens. Maybe some legal code like the Code of Urukagina started out with good intentions, but in the end it is about making criminals out of subjects and/or fellow citizens.
Most everyone seems to Love ‘Da Law until they become victims of it.
Look at the Rule of Law here in America. Years ago you be sent to prison for possession of a single joint (marijuana). Today I voted Yes on an Amendment that ‘Legalizes recreational marijuana for Floridians and out-of-state visitors 21 and older.’ People in some states in America can operate Marijuana businesses. People in other states are still serving long prison sentences for trafficking marijuana.
Rule of Law has never been about “truth” – it has always been meant to protect BIG Governments and Kings ‘n Such…
Patrick Deneen discusses Strauss’ Three Waves of Modernity essay with The New Thinkery guys (1:04:00): https://directory.libsyn.com/episode/index/show/thenewthinkery/id/33528252
@neo
This idea of Bell’s and of Critical Legal Studies in general – that law is a sham and only about power – is an excuse for subsequently making it a sham in pursuit of power
Oh, well played, I say! Well nailed.
@Karmi
Laws have always been about making criminals out of subjects and/or fellow citizens.
You reject every human attempt in recorded history to achieve fair and even-handed governance? Better read some more.
Insufficiently+Sensitive
Too funny! 🙂 Humans attempting to “achieve fair and even-handed governance”.
There’s gotta be one of those fancy terms in the English language for that quote – ‘oxymoron‘ or one of the other fancy words like it…
Karmi the anarchist.
Who was one of bell and de ungers star pupils barack obama (he included his texts in the syllabi for his civil rights law course, just a praxis on community organizing
@Karmi
So laws against murder are just because you deprive the king of subjects. Laws against theft is solely because if you steal from the king’s subjects they won’t be able to pay their taxes.
You’ve figured it all out.
We have seen everythere they have legalized pot it is a disaster not only california but new york colorado oregon et al thate empirical fact why would we try this here in the last sane state
This is a great post that truly gets to the heart of the matter. For the left to truly assume power, reason itself must be destroyed. In a world where reason reigns, they lose. The crazy thing is they get that better than we do. They are not ashamed of it. Foucault, Derrida, and the rest of their champion philosophers specifically said it.
This is the best book I’m aware of on the subject:
https://www.amazon.com/Explaining-Postmodernism-Skepticism-Socialism-Rousseau/dp/0983258406
Highly recommend. It is important to know one’s enemy!
Miguel says:”why would we try this here in the last sane state”. I infer he perhaps speaks of MA, which is peopled by nutties. No sanity there!
They invert the purpose of government we dont need chaos we need a modicum of order
In praise of insanity (continued)…
“Judge Orders Virginia to Restore 1,600 People to Voter Rolls
Posted”—
https://legalinsurrection.com/2024/10/judge-orders-virginia-to-restore-1600-people-to-voter-rolls/
“Hillary Claims Trump is ‘Reenacting’ the 1939 Nazi Rally at Madison Square Garden Nazi Rally in 1939”—
https://legalinsurrection.com/2024/10/hillary-claims-trump-is-reenacting-the-1939-nazi-rally-at-madison-square-garden-nazi-rally-in-1939/
“ MSNBC’s Mika Brzezinski Says Trump is ‘Killing Women’ “—
https://legalinsurrection.com/2024/10/msnbcs-mika-brzezinski-says-trump-is-killing-women/