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.
