Rights and Left

Rights discourse is internally inconsistent, vacuous, or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make it almost impossible for it to function effectively as a tool of radical transformation. Rights are by their nature ‘formal,’ meaning that they secure to individuals legal protection for arbitrariness—to speak of rights is precisely not to speak of justice between social classes, races, or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of ‘civil society’ in which atomized individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualize radical proposals such as, for example, decentralized democratic worker control of factories.

Because it is logically incoherent and manipulable, traditionally individualist, and willfully blind to the realities of substantive inequality, rights discourse is a trap. As long as one stays within it, one can produce good pieces of argument about the occasional case on the periphery where everyone recognizes value judgments have to be made. [ Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 598 (1982)]

Duncan Kennedy spoke for a large portion of the Critical Legal Studies movement when he wrote these words in 1982. CLS scholars were, at the time, launching a left-wing Marxist attack on the traditional structures and assumptions of legal institutions. Critical Legal Studies attempted to subvert the supposed coherence of our dominant legal categories, exposing them to be actually chaotic and incoherent, and then examine what sorts of entities would have the interest in (arbitrarily) constructing legal reality as we now find it. One of their favorite targets was the idea of "rights", which they thought were (to say the least) overrated. CLSers dedicated themselves, in fact, to "trashing" rights -- exposing them as indeterminate, inchoate, and manipulable to whatever ends desired by the empowered classes.

The Critical Race Theory movement grew out of CLS, and agreed with many of its observations. The writings of Derrick Bell, in particular, took the legal world by storm as an indictment of some deeply held assumptions about the utility of the legal system as a tool for effected civil rights reforms -- particularly given Bell's history as a front line attorney for the NAACP's Legal Defense Fund during the height of the civil rights era. Most Critical Race Theorists agreed with Bell that the efficacy of rights talk had been wildly overstated by self-congratulatory White folks, and that progressives needed to reevaluate their options.

Nonetheless, fissures rapidly began to appear between the largely White CLS movement and the more integrated CRT wing. These came to a head in 1987, when the Harvard Civil Rights-Civil Liberties Law Review published a symposium entitled, simply enough, Minority Critiques of the Critical Legal Studies. One of the primary angles of attack, ironically enough, was that CLSers had gone too far in their dismissal of rights, legal remedies, and formal legal protections. In her contribution, Patricia Williams -- one of the most important contributors to Critical Race Theory -- told the following story, which has stuck with me for a long time:

Some time ago, Peter Gabel [a founder of Critical Legal Studies] and I taught a contracts class together. Both recent transplants from California to New York, each of us hunted for apartments in between preparing for class and ultimately found places within one week of each other. Inevitably, I suppose, we got into a discussion of trust and distrust as factors in bargain relations. It turned out that Peter had handed over a $900 deposit, in cash, with no lease, no exchange of keys and no receipt, to strangers with whom he had no ties other than a few moments of pleasant conversation. Peter said that he didn't need to sign a lease because it imposed too much formality. The handshake and the good vibes were for him indicators of trust more binding than a distancing form contract. At the time, I told Peter I thought he was stark raving mad, but his faith paid off. His sublessors showed up at the appointed time, keys in hand, to welcome him in. Needless to say, there was absolutely nothing in my experience to prepare me for such a happy ending.

I, meanwhile, had friends who found me an apartment in a building they owned. In my rush to show good faith and trust-worthiness, I signed a detailed, lengthily-negotiated, finely-printed lease firmly establishing me as the ideal arm's length transactor.

As Peter and I discussed our experiences, I was struck by the similarity of what each of us was seeking, yet in such different terms, and with such polar approaches. We both wanted to establish enduring relationships with the people in whose houses we would be living; we both wanted to enhance trust of ourselves and to allow whatever closeness, whatever friendship, was possible. The similarity of desire, however, could not reconcile our very different relations to the word of law. Peter, for example, appeared to be extremely self-conscious of his power potential (either real or imagistic) as a white or male or lawyer authority figure. He therefore seemed to go to some lengths to overcome the wall which that image might impose. The logical ways of establishing some measure of trust between strangers were for him an avoidance of conventional expressions of power and a preference for informal processes generally.

I, on the other hand, was raised to be acutely conscious of the likelihood that, no matter what degree of professional or professor I become, people would greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational and probably destitute. Futility and despair are very real parts of my response. Therefore it is helpful for me, even essential for me, to clarify boundary; to show that I can speak the language of lease is my way of enahncing trust of me in my business affairs. As a black, I have been given by this society a strong sense of myself as already too familar, too personal, too subordinate to white people. I have only recently evolved from being treated as three-fifths of a human, a sub-part of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor, black tenants, and demanded that rent by paid in cash; although superficially resembling Peter's transaction, such "informality" in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in a struggle to set up transactions at arms' length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce, rather than to be manipulated as the object of commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and that he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. In contrast, the lack of a formal relation to the other would leave me estranged. It would risk figurative isolation from the creative commerce by which I may be recognized as whole, with which I may feed and clothe and shelter myself, by which I may be seen as equal--even if I am stranger. For me, stranger-stranger relations are better than stranger chattel. [Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 406-408 (1987)]

Williams story evokes part of the general CRT discomfort with the CLS/Marxist attack on "rights" as a concept. People of color, Williams argued, are well aware that rights aren't all they're cracked up to be. They are not a panacea, and they can be manipulated to support near-infinite policy ends -- including brutally oppressive ones. But at the same time, Williams knows well the difference between even nominally being part of the rights-world and being excluded from it. One has the luxury to be alienated by legal formalities only when can be secure that informality will still accord you basic respect and dignity -- a luxury not held by people of color of all classes and backgrounds. The right to hold rights at least provides an foothold -- an avenue which the dispossessed can pivot from and assert claims against those wronging them; the pages upon which one can write a counter-narrative to the dominant conception of rights interpreted solely to protect the privileged.

Even losing a rights-claim is superior to not being allowed to assert the claim in the first place. The act of “[n]aming violence inside and outside the courtroom bears witness to it and preserves the possibility of judging it.” Undoubtedly, the forces of the legal system will attempt to refract the claims and stories so as to ratify the existing order. But stories are fickle things – they are not always read the way their authors intended them to be. Martha Minow points out that even losing arguments can still remain quite powerful “if they continue to represent claims that muster people’s hopes and articulate their continuing efforts to persuade.” One can lose a lawsuit, but still win “pages in the works of historians and anthropologists, and a chance at reviving and recasting memories." [ Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860 (1987); Martha Minow, Not Only For Myself: Identity, Politics & the Law 82 (1997)]

Critical Race Theory today remains a vibrant field; Critical Legal Studies, by contrast, is nearly moribund. The reason, I submit, is because the groups it thought it was speaking on behalf of still saw a use for rights, for legal formalities, for contracts, and for law -- all entities that CLS was seeking to "trash". Elsewhere, Williams wrote:

To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.... [Patricia J. Williams, The Alchemy of Race and Rights 163 (1992)]

The promises rights hold out: to speak freely, to bargain equally, to be treated fairly -- these are powerful things. Even when dominant legal discourse seeks to squash them of any life, the concepts they represent do not die so easily. The seeds of life are always there, yearning to germinate.

One More Quote of the Day

Same source as the last one:

Legal scholars can perform an edifying role by broadening the perceived scope of legitimate institutional alternatives. One way to do this is to demonstrate the contingent and malleable nature of legal reasoning and legal institutions. The greatest service that legal theorists can provide is active criticism of the legal system. Criticism is initially reactive and destructive, rather than constructive. But out mistaken belief that our current ways of doing things are somehow natural or necessary hinders us from envisioning radical alternatives to what exists. To exercise our utopian imagination, it is helpful first to expose the structures of thought that limit our perception of what is possible. Judges rationalize their decisions as the results of reasoned elaboration of principles inherent in the legal system. Instead of choosing among available descriptions, theories, vocabularies, and course of action, the official who feels "bound" reasons from nonexistent "grounds" and hides from herself the fact that she is exercising power. By systematically and constantly criticizing the rationalizations [*59] of traditional legal reasoning, we can demonstrate, again and again, that a wider range of alternatives is available to us.

Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 58-59 (1984).

Quote of the Day

I distinguish nihilism both from what I call rationalism and from my own position, which I prefer not to label but which for clarity's sake I will here call irrationalism.... Rationalism encompasses two fundamental assumptions, neither of which I accept. The rationalist believes that a rational foundation and method are necessary, both epistemologically and psychologically, to develop legitimate commitment to moral values; she also believes that such a rational foundation and method either already exist or can be discovered or invented. Nihilism is only a partial rejection of rationalism: The nihilist rejects the second assumption, but not the first. Thus a nihilist would argue that a rational foundation is necessary to sustain values but that no such foundation exists or can be identified. This sort of nihilism leads directly to psychological feelings of impotence and despair, and to the sense that nothing matters, because what we desperately require to make our lives meaningful is impossible to achieve. My position rejects both assumptions. We do not have a rational foundation and method for legal or moral reasoning (in the sense that traditional legal theorists imagine such rational foundations to be possible); we do not, however, need such a foundation or method to develop passionate commitments and to make our lives meaningful. This formulation removes the dilemma that is the basis for the despair of the middle position. I prefer not to describe my position as "irrationalism" ... for the same reason I decline to adopt nihilism as a way to describe myself. It would be misleading and confusing to appear to be advocating that decisions be made "irrationally" -- without connection with discernable goals. A better term might be pragmatism. I would prefer, as would Mark Tushnet and Richard Bernstein and Gerald Frug, that we stop thinking about moral, political, and legal choice in terms of the dichotomies between reason and emotion, law and politics, rationality and irrationality, objectivism and relativism. These dichotomies are inadequate to express the dilemmas of social life.

Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 4 n.8 (1984).

A friend once asked me a question that was premised on this very dilemma -- she feared that without rational foundations everything ceases to have meaning. The premise, as Singer shows, is not necessarily correct: we don't need objective foundations to engage in meaningful lives. Hence, his epigraph, which I offer as a bonus quote:

After they had explored all the suns in the universe, and all the planets of all the suns, they realized that there was no other life in the universe, and that they were alone. And they were very happy, because then they knew it was up to them to become all the things they had imagined they would find.

Lanford Wilson, 5th of July 127 (1978)

Unger-neath the Cork Tree

Also interesting: this article on Roberto Unger -- one of the key figures in Critical Legal Studies -- in the Chronicle of Higher Education.

Fun/demoralizing fact: at the age of 22 (i.e., my age), he was already an assistant professor at Harvard Law School.

At 22, I was already rejected by Harvard Law School. The parallels are astounding!

But it is a really neat article, and reinforces my somewhat dormant desire to actually read some of his work.

Minow on Difference and Categories

From the start of Martha Minow's fantastic book, Making All The Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell UP 1991):

When we analyze, we simplify. We break complicated perceptions into discrete items or traits. We identify the items and call them chair, table, cat, and bed. We sort them into categories that already exist: furniture and animal. It sounds familiar. It also sounds harmless. I do not think it is.

I believe we make a mistake when we assume that the categories we use for analysis just exist and simply sort our experiences, perceptions, and problems through them. When we identify one thing as like others, we are not merely classifying the world; we are investing particular classifications with consequences and positioning ourselves in relation to those meanings. When we identify one thing as unlike the others, we are dividing the world; we use our language to exclude, to distinguish—to discriminate. This last word may be the one that most recognizably raises the issues about which I worry. Sometimes, classifications express and implement prejudice, racism, sexism, and anti-Semitism, intolerance for difference. Of course, there are ‘real differences’ in the world; each person differs in countless ways from each other person. But when we simplify and sort, we focus on some traits rather than others, and we assign consequences to the presence and absence of traits we make significant. We ask, ‘What’s the new baby?”—and we expect as an answer, boy or girl. That answer, for most of history, has spelled consequences for the roles and opportunities available to that individual. And when we respond to person’s traits rather than their conduct, we may treat a given trait as a justification for excluding someone we think is ‘different.’ We feel no need for further justification: we attribute the consequences to the [*4] differences we see. We neglect the other traits that may be shared. And we neglect how each of us, too, may be 'different.'(3-4).

This doesn't mean we can avoid categorizing things. As Angela Harris notes at the start of her own article, Race and Essentialism in Feminist Legal Theory [42 Stan. L. Rev. 581 (1990)], the world would collapse into incoherence if we did. It merely means that categorizing things is problematic. It has moral implications that we need to be aware of, and potentially pernicious effects that we need to be prepared to counteract. That can only happen if we're cognizant of the problem.

Of Law and Langauge

Yale Law Professor Jack Balkin has a really fantastic post up on the "other side" of the Critical Legal Studies movement. A good deal of CLS scholarship was based around "trashing" liberal conceptions of rights and "neutral" procedures. They argued that law and legal texts were inherently malleable, and would always be bent to serve the interests of the socially powerful at the expense of the weak. Even the very language of the law--centered high-minded ideals like "justice" and "equality", could be manipulated to serve the interests of ruling elites. So it is that many people now understand, say, Affirmative Action as a violation of the equality principle, rather than its instrument. Thus, while CLS thinkers often believed that law is simply another form of politics, law actually has a particular danger not present in other forms of politics. Law, far more than ordinary politics, has the potential to corrupt our very moral categories themselves.

There is more than a grain of truth to this. But as CLS evolved and began to dialogue with its offspring in the race and feminist movements, a counterthread began to emerge. This talk of rights and justice and ideals is certainly not immune to being enlisted in the service of regression. But, as many veterans of the civil rights movement noted, the fact that legal discourse was constructed around these categories meant that they had grounds to at least make claims. Rights were something Black people could stake out, and it is an inherently superior frame for the debate than "pure" power politics. Because law channels elite discourse into terms like justice, advocates can choke them with those words. "How can you do this?" can easily be responded to with "Because I can." "How can you call this just?" is not as easy to dodge out of.

The relative autonomy of law from politics-- rather than its complete autonomy-- simultaneously posed a threat and a promise. The threat was that law would fail to do much more than ratify and legitimate the interests of the powerful; the promise was that it could hold off the worst excesses of power by giving people discursive and institutional tools to talk back to power, to restrain its selfishness and inhumanity, and to imagine finer, better visions of human association.

The threat and the promise of law were joined together inseparably. What gave law its power to legitimate was its ability to re-describe unjust and unfair events, social practices and institutions in terms of valued ideals of human association like consent, freedom, equality and fairness. In the hands of lawyers and politicians, law could disguise, mystify and legitimate great injustices using the very ideas and ideals we admire. But law could only do this because it appealed to these values and claimed to be trying to put them into practice through law. That is, the recourse to law forced the powerful to talk in terms in which the powerless could also participate and could also make claims.

The CLS critique of law was thus Janus-faced. On the one hand, powerful people used law to subordinate others and secure their own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human dignity. On the other hand, by choosing to speak in the language of law, powerful people and interests could be called to account because they tried to legitimate what they were doing in these terms. The people they took advantage of could always argue that this was a misuse of law, an illegitimate attempt at mystifying rhetoric. They could then appeal to the values that law sought to protect to promote better, juster, and more humane practices and forms of human association.

Law is often overstated as a tool for liberation. But then, it is often underestimated as well. Law has the ability to force the discussion into terrain advantageous for liberators. It does not guarantee results, but it may make the fight just a little fairer.

Lucy In The Sky

Sasha Volokh points to a new article by Mike Seidman, Critical Constitutionalism Now [75 Fordham L. Rev. 575 (2006)], which argues that the arguments of the Critical Legal Studies movement have been vindicated--by President Bush's, er, creativity in interpreting legal texts and norms to justify some of his more extreme policies on the war on terror.

I think that's true, although I hardly think it strikes a mortal blow against the CLS movement. Much the opposite, I think this is precisely what modern CLSers would predict--conservatives mask their policy preferences as "rule of law," when in reality they are just contorting law to fit the policy. This is how law can be enlisted so easily to impede social change--it's content never is unambiguous and thus no conservative will ever feel compelled to make any earth-shaking or radical reform to society via law.

In sum, I feel like Seidman's understanding of the history and "ideology" (such as it is) of CLS and successor movements is weak, although the prescriptive portions of his paper are better. However, he does score significant points for this passage, explaining why CLS scholars think the discourse of rights can actually be harmful towards achieving social reform:

The rhetoric of rights tended to objectify and distort the actual situation in which people found themselves. Rights were abstract, alienating, and individuating rather than concrete, liberating, and unifying. 12 These deficiencies were, in turn, reinforced by what might be called the "Lucy-and-the-football" phenomenon. The possibility of vindicating legal rights was endlessly dangled before the dispossessed. Rights were in fact vindicated frequently enough so as to keep people in the game. However, the indeterminacy of rights allowed courts to yank them away just when any truly meaningful reform seemed within reach. Consequently, endless time and energy were wasted in the pursuit of legal remedies, when the time might better have been spent organizing nonlegal popular resistance. (578)

Agree with it or no, I certainly think that portrays the argument in a delightful, succinct, and lucid manner.

Incidentally, Volokh-the-younger also links to Jack Balkin's Deconstruction's Legal Career [27 Cardozo L. Rev. 719 (2005)], which is a spectacular piece and one I cannot recommend highly enough.