Note on the tasks of a critical legal theory

The last sophisticated, concerted effort of critical legal thinking goes under the name of Critical Legal Studies, or CLS. The most powerful expressions of this diverse “school” of thought can be found in the works of Duncan Kennedy (though the more recent A Critique of Adjudication: fin de siecle (1997) is an extension of his earlier work, it marks something of a break in a new direction, which I will probably take up at some point), Peter Gabel, Gary Peller, and, arguably, Roberto Mangabeira Unger (I say “arguably” because Unger is more properly a philosophical social theorist than a legal theorist – see, for instance, his ontological-metaphysical study, Knowledge & Politics). As an excrescence, of sorts, of the Frankfurt school (notably Herbert Marcuse), the crits were known for their neo-Marxian inflections. Additionally, the Sartre of Search for a Method (they seem never to have made it past this introductory essay to the proper work itself, Critique of Dialectical Reason) is especially important for many adherents. The central thematic is always the pivotal role of the law and the legal institution in a late capitalist regime, and the ways in which they oppress, repress, and compress the masses and the marginalized – the law as an apologetics for the status quo. Against this, the constructive effort is usually socialist in nature.

I’m becoming less and less satisfied with thinking in such categories as capitalism, socialism, the symbolic, and so on, at least with regard to legal theory. There is a hint of this in my comments on Law & Psychoanalysis. What is needed is a legal theory that takes seriously micropolitical analysis and its “flows of desire and belief,” group formation or collective individuation, and concrete problems of exploitation or expropriation, legal and political. This came to a head when I thought about contemporary music via Einstürzende Neubauten, where the earliest compositions are direct assaults upon “capitalism” – which in reality has little content. Perhaps this is the mark of the failure of that earlier work, not, as I initially suggested, the incomplete character of its critique. Complete critique may be a fantasy. Perhaps it ought to be traversed.

It seems to me that a pragmatic analytic will refrain from making capital judgments, condemnations on “capitalism” tout court, straight-up condemnations of the law as collapsed into the political, and the rest. Rather, such a course of study would center on the conditions required for real social change and the details (and details of details) describing the present status of the elements of those conditions – for instance, what intensive factors (types of rhetoric, methods of goal-setting both internal and external, economic phenomena such as interest rate fluctuations, interactions between markets, the widening of the gap between haves and have-nots, legal fictions such as those embodied in contract law, corporate law, etc.) coordinate to bring about the individuation of collectivities and help organize their functions?

The flipside of this is the imperative to keep in close communication with the “big problems” of legal-cultural studies. We need to continue to thematize the role of law in a control society. We need to continue to study the paradigm of the state of exception and the biopolitical. My proposal is that these things can only be really gotten to if we move away from allowing our representations and reifications to determine our inquiries. A chain of inferences can always be traced from a given instance of social or economic oppression or expropriation all the way back to the “capitalist regime.” And I don’t exactly dispute the validity of such a chain. What I challenge is its use. Isn’t it more productive to direct our attention to the present status of the elements conditioning real social change, i.e., not the overwhelming autonomy of capital but its emissions, the leaks in its plaster?

I’ll end this very brief reflection with another quote from one of the most polarizing figures in 20th century thought, Arendt:

“At the moment, one prerequisite for a coming revolution is lacking: a group of real revolutionaries. Just what the students on the left would most like to be – revolutionaries – that is just what they are not. Nor are they organized as revolutionaries: they have no inkling of what power means, and if power were lying in the street and they knew it was lying there, they are certainly the last to be ready to stoop down and pick it up. That is precisely what revolutionaries do. Revolutionaries do not make revolutions! The revolutionaries are those who know when power is lying in the street and when they can pick it up.”

“Thoughts on Politics and Revolution,” in Crises of the Republic, 206.