Vol. 7 No. 11 (November 1997) pp. 496-499.

RADICAL PHILOSOPHY OF LAW: CONTEMPORARY CHALLENGES TO MAINSTREAM LEGAL THEORY AND PRACTICE, edited by David S. Caudill and Steven Jay Gold. Atlantic Highlands, New Jersey: Humanities Press, 1995. 336 pp. Cloth $45.00. Paper $15.00. ISBN 0-391-03862-1.

Reviewed by Helena Silverstein, Department of Government and Law, Lafayette College.
 

For those who have spent many an hour reading and re-reading legal cases, as I have of late, the thought of turning the pages of a book on "radical" legal theory has its appeal. My appetite was whetted and, to some extent, satisfied by RADICAL PHILOSOPHY OF LAW: CONTEMPORARY CHALLENGES TO MAINSTREAM LEGAL THEORY AND PRACTICE. In this edited volume, David S. Caudill and Steven Jay Gold collect a wide variety of essays that, as Caudill puts it, represent "a cross section or sampling of work in contemporary left legal theory" (p. ix). The essays do indeed traverse the disciplines, bringing together left-leaning scholarship from the fields of philosophy, sociology, psychology, political science, and law. This interdisciplinary foray into left legal theory has its merits, but many of the articles and the volume as a whole left me (no pun intended) wanting both more and less.

This collection contains a very brief introduction and fifteen essays, divided into two parts. Part I, comprised of seven essays, focuses on theory; Part II deals with applications. Caudill concedes in his introduction that the division is "artificial," and it is fair to say that the articles in Part II are quite theoretical. In fact, some of the works in Part II might well have been more appropriately placed in Part I. In addition, there might have been other ways to organize the pieces (e.g., by theoretical model). But this is largely inconsequential. While the division of this collection into two parts does not add much for the reader, it is important to note that the organization does not distract from the overall project.

The theoretical approaches elaborated in Part I primarily cover the terrain of Marxism, postmodernism, psychoanalytic theory, and feminism. The first two chapters begin the theoretical explorations, not surprisingly, with Marxism. Raymond A. Belliotti asserts that, with a few notable exceptions, most of philosophers of law these days are Marxist. Exploring "The Legacy of Marxist Jurisprudence" on legal realism, feminism, critical legal theory, and critical race theory, this essay offers a nice overview of Marxist legal theory. Steven Jay Gold takes a different tack, defending Marxist functional explanations. In so doing, Gold encourages legal scholars to use Marxian functional analysis, but he gives little attention to how functional theory might be specifically applied to studies of law.

The authors of the next two chapters move to postmodern and psychoanalytic approaches. In "Postmodern Law and Subjectivity," Dragan Milovanovic begins with Marxism in order to reveal its shortcomings with respect to the conception of the active human subject. Looking then to postmodernism and, specifically, the psychoanalytic semiotics of Jacques Lacan, Milovanovic explores the importance of subjectivity and agency for critical theory of law. He thus raises the connections between Marxism, postmodernism, psychoanalytic linguistics, and critical theory, but in the span of a seven-page article one only gets a basic and preliminary taste of these connections. Like Milovanovic, David S. Caudill turns to psychoanalytic theory for insight, in this case to remedy the shortcomings of Critical Legal Studies (CLS). Caudill, though, looks to Freud, and his comments offer "‘traces’ of the potential for psychoanalytic concepts in critical legal research" (51), including such concepts as desire, roles, cultural self-criticism, and more. Also like the earlier piece, this one introduces the reader to the intriguing junction between critical legal theory and psychoanalytic paradigms, but the surface has only been touched.

Feminist approaches to studying law are taken up in two additional chapters of the theory section. Patricia Smith offers a fine overview of feminist critiques of legal theory, using the illustrative case of equal protection law to survey these perspectives. In addition, drawing on the works of several scholars, Smith clearly explains the goals of feminist legal criticism. While her presentation will be familiar to those well-versed in feminist scholarship, the succinct elaboration of the purpose of feminist challenges to mainstream legal theory is well-done. Bruce A. Arrigo offers a significantly different perspective in his postmodern take on feminist legal theory, contained in "Rethinking the Language of Law, Justice, and Community." Drawing on the work of a host of scholars, including Foucault, Irigaray, Gilligan, MacKinnon, and others, Arrigo seeks to deconstruct and critique prevailing legal jurisprudence. Specifically, Arrigo suggests that the "task of establishing a fundamental feminist jurisprudence simultaneously entails decentering our phallocratically constituted legal reality and reframing the notion of justice as authentically lived experience" (106).

There is one additional essay appearing in Part I, "A Theory of Social Injustice," by Thomas W. Simon. This piece is not easily placed within the theoretical paradigms that frame this portion of the volume. Simon’s essay urges the scholarly investigation of a theory of injustice, as opposed to the more common examinations of justice. Arguing that a theory of injustice takes on a different character than a theory of justice, Simon attempts to provide a "systematic analysis of injustice," especially as it applies to social, or group, injustice (55). Toward this end, he offers a compelling and substantive analysis, providing more depth than most of the articles in Part I. However, he is less convincing in arguing that "the struggle for democracy includes the fight to eradicate social (group) injustice" (55). Still, his thesis is intriguing and worth considering.

The applications of "radical" legal theory that appear in Part II span a wide range, and these essays, it is worth repeating, are largely theoretical. As such, they return to, and in some instances go beyond, the paradigms examined in Part I. There is no real organization to the articles, nor is there any obvious explanation for the particular applications that find their way into this section. Nonetheless, the broad coverage offered here is useful, and readers will find applications to numerous areas, including criminal law, tort law, contract law, labor law, property rights, free speech, abortion rights, gay rights, marriage law, and family law.

Marxist theory and critical theory are specifically taken up in chapters 8, 9, and 10. Jeffrey Reiman revisits Marxist theory in the context of criminal justice. While Reiman does a nice job explaining a Marxist approach to law, the application to the criminal justice system seems secondary and insufficiently developed. David Ingram, in "Legitimation Crisis in Contract Law," moves to a more developed exploration of contract law in his critique of liberal theory. Using insights drawn from CLS and moving beyond those, Ingram criticizes the instrumental definition of rationality upon which contractualism and conflict-oriented models of democracy are based. He recommends, instead, a "dialogical and democratic" approach to rationality that, in part, "consists of the discursive formation of public opinion" (159). Like Ingram, Carl Swidorski approaches his substantive exploration of labor law through the lens of critical theory in "Constituting the Modern State." Swidorski presents a compelling thesis, arguing that since the New Deal era the United States Supreme Court has acted to legitimate corporate-capitalist, liberal democracy. Exploring not only labor law, but also the realm of civil rights, Swidorski nicely defends his argument that we must understand the Court "within the context of the changes in the nature of modern capitalist society, particularly the relationships between corporations, the government, and organized labor" (167).

Two of the contributors return to feminist legal theory in Part II. Nan D. Hunter offers an interesting application of feminist theory, arguing that legal rulings concerning same-sex marriage have been shaped by gendered definitions of the boundaries of marriage. Ruth Colker also takes up the issue of gay rights, as well as the subject of abortion, but from a rather different perspective. Colker argues that abortion and gay rights movements would benefit from a holistic perspective on sexuality, drawn from theology and feminism.

Three other essays round out the applications section. Patricia S. Mann’s "Hate Speech, Freedom, and Discourse Ethics in the Academy" advocates the use of hate speech restrictions on college campuses. Although I am not persuaded by her argument that hate speech infringes upon a right to be heard and recognized as a political agent, she does offer an alternative conception that adds to the debate on free speech issues. Ward Churchill in his essay presents an extremely critical discussion of the settlement of North America, arguing that the United States is an outlaw state that does not possess a legitimate right to occupancy. In addition, Churchill contends that in order to counter this appearance, "its legal scholars and its legislators have persistently and often grotesquely manipulated and deformed accepted and sound legal principles, both internationally and domestically" (p. 219). His conclusion--that the United States must be driven from North America--is certainly suited for a volume addressing radical approaches. Also suited, although not very persuasive, is Denis J. Brion’s application of chaos theory to law in his article "The Chaotic Indeterminacy of Tort Law: Between Formalism and Nihilism."

Several of the essays in this volume do a fine job of introducing alternative perspectives that challenge mainstream thinking about the law. Most useful as introductory theoretical overviews are the pieces by Belliotti, Caudill, and Smith. For more substantive articles, Simon’s discussion of injustice, Swidorski’s examination of the Supreme Court, and Hunter’s piece on marriage are especially notable.

Taken as a whole, this volume is more difficult to assess. A few points, though, are worth noting. First, the essays are variable in terms of their contribution, complexity, readability, and depth. Second, it is surprising that a piece devoted to critical race theory is absent. While some of the articles address critical race theory, a more specific discussion would have been appropriate and useful for such a volume. Third, the essays range not only across disciplines but along the spectrum of what is radical. Certainly the application of chaos theory to law pushes the margins of the radical. But a defense of hate speech restrictions does not necessarily count as radical. It might have been beneficial to introduce this volume with a more substantive discussion of the nature and scope of radical legal theory.

Finally, and most importantly, there is something of a paradox in this compilation of essays. The book is intended to "introduce upper-level undergraduate and graduate students in law, philosophy, social theory, criminal justice, and political theory to the alternative visions of law that coexist alongside mainstream legal theory and practice" (book jacket). I would certainly agree that those are the appropriate target audiences for this text. However, many, though by no means all, of the essays are rather introductory in terms of the depth of analysis and the development of the arguments. At the same time, the terms of the debate and the conceptual substance of the material are complex; as such, many of the articles may elude the grasp of upper-level undergraduates. Thus the paradox: as introductions for introductory readers, several of these essays may be difficult to understand, yet for those who would grasp the complexity, the introductions do not go far enough.
 


Copyright 1997