Vol. 8 No. 1 (January 1998) pp. 5-8.

RADICAL CRITIQUES OF THE LAW, edited by Stephen M. Griffin and Robert C. L. Moffat. Lawrence, Kansas: University Press of Kansas, 1997. 337 pp. Cloth $45.00, Paper $25.00 ISBN 0-7006-0846-X.

Reviewed by Mark Kessler, Department of Political Science, Bates College.

This volume is composed of fifteen chapters (plus comments and replies) written for the 1992 conference, "Radical Critiques of the Law," held by the American Section of the International Association for Philosophy of Law and Social Philosophy. Four substantive sections divide this work, prefaced by an introductory essay by the editors. The first section includes an essay on the relation of critical legal studies to legal realism by Richard Nunan, an analysis of the idea that law is indeterminate by Lawrence B. Solum, and descriptions of the projects of Habermas and Pashukanis by Norman Fischer and Larry May. Emily Gill, Patricia Smith, and Diana Tietjens Meyers discuss various elements of feminist legal theory in a second section. A third section offers liberal critiques of feminist and other critical theories by Richard T. De George, Wade L. Robison, and Joseph Ellin. A final section focuses on current issues of legal reform, including an essay by Joan L. McGregor on feminist analyses of rape law, James F. Doyle and Randall R. Curren on punishment, and Thomas W. Simon and David M. Adams on hate speech regulation.

Because this volume ranges so broadly over such a great variety of legal and theoretical issues, it is not easy to summarize or review. Indeed, this review can not capture all (or even most) of the issues, arguments, and debates discussed in this collection. As is often the case for collections produced by conferences of this sort, the selections do not consistently address common, overarching themes (the last section on punishment and hate speech seems particularly disconnected from the rest of the volume).

In a useful introduction, the editors seek to make sense of the diverse chapters. In general, the selections are described as a philosophical response (17 of 21 authors of chapters and comments reside in college and university departments of philosophy) to critical scholarship of the past two decades, especially feminist legal theory, critical legal studies, and critical race theory. According to Griffin and Moffat, the question guiding analyses in this collection emerged from the major concern of the conference-- "whether the critiques advanced in the recent legal theory were critical enough to be called truly radical critiques of the law." This question, according to the editors, raised another concern regarding "what a radical critique of American law should look like" (p. 1).

Most of the selections that address these questions argue that recent critical works are not "radical" and, in some important ways, are consistent with liberal legal theory. One exception to this argument is found in Patricia Smith's review of feminist legal theories. She shows how theories that initially employed liberal ideals grew more radical over time. According to Smith, "in recent decades women have discovered that the liberal program has serious limitations and that discovery has led many feminists to a more radical evaluation of law and also to some of the greatest intellectual contributions feminists have made to legal analysis..." (p. 145). One crucial insight of this work is that norms reflected in law "are often systematically biased in ways that reinforce the subordination of women to men by assuming a male standard of what is normal, or a male perspective of what is real and then entrenching these assumptions by characterizing them as neutral" (p. 148). Because these norms have become so deeply woven into the culture, social change benefiting women will require "the eventual transformation of our most fundamental institutions" (p. 158). In a comment, Bruce Landesman finds this reading questionable, arguing that most feminist legal theory accepts key elements of liberal theory and that "impartial reason" can be employed to address feminist concerns with law. According to Landesman, "liberalism, impartiality, and rights can be allies, not opponents, in the cause" (p. 191).

Landesman's comment clearly expresses the volume's theme as stated by the editors-- "the claim to radicalism" in recent critical legal theories "is highly problematic." According to Griffin and Moffat, "few, if any, of the radical critiques ... could not equally well be offered within the confines of a liberal critique" (p. 15). What, then, is required of work that is truly "radical?" The editors rely on a chapter by De George ("Are Feminist and Critical Legal Theory Radical?") to develop criteria. To De George, Marx should be viewed as the "paradigm example of a truly radical approach" (p. 5). Such an approach is revolutionary, implying fundamental change, a willingness "to change things at the root" (203). Three stages are necessary: (1) identifying problems that are the targets of critique, referred to by De George as "consciousness-raising," (2) proposing an alternative structure, and (3) outlining a plan of revolution. Recent critical theories, according to De George, generally do an adequate job meeting the first criterion, but few have made much progress on the second and third stages. Since these recent theories do not meet these criteria, the editors point to chapters on Habermas and Pashukanis as alternative critiques that embody considerably greater promise of being truly radical" (pp. 15-16).

Some of the selections contained in this collection make reasonable arguments that certain ideas in recent critical work could be used in ways that are consistent with basic tenets of liberal theory. For example, Solum shows that law's indeterminanc--a central idea in some strands of critical legal studies--may not necessarily undermine the liberal belief in the "rule of law." Developing Aristotle's notion of "equity," he demonstrates how explicit recognition of equity concerns as a departure from legal rules "may serve to increase the regularity and predictability of rule application in the legal system as a whole" (p. 61).

In general, however, the conclusion that recent critical legal theories are fundamentally liberal is unpersuasive. In several chapters and comments, this conclusion appears to be based on a very selective reading of ideas from these works that are interpreted from a modernist perspective. This perspective largely ignores the postmodern influences on critical legal theories. While the descriptions of theorists like Habermas and Pashukanis are useful and may be employed to construct alternative "radical" theories within a modernist paradigm more in line with Marx, much of the best work in critical legal theory is informed by postmodernism's reluctance to construct grand narratives or metatheories of the kind represented by Marxism.

Indeed, those elements of critical legal theory largely neglected in this volume are crucial to consider, given the questions posed by the editors, since they carry with them the most "radical" implications, in De George's sense of "changing things at the root." Many who write from the perspective of critical legal studies, feminist theory, and critical race theory (a body of work that is barely mentioned in this volume) view law as ideology, as one significant element that is constitutive of social relations and social reality. Law, from this perspective, plays an important role in perpetuating hierarchy, inequality, and oppression. Exposing law's complicity in producing and reinforcing inequality is not "merely" consciousness-raising, as De George implies, but a necessary step in changing relations of domination. Many of the new critics would not accept the distinction between "ideas" and "reality" in the following statement by De George: "if one thinks that ideas change reality, rather than vice versa, one may operate at the level of theory or law. But, for Marx, this is an idealistic approach and will produce no significant effects" (pp. 197-98). For many of the newer critics, "ideas" and "reality," as well as "law" and "society" are mutually constituting and, thus, fighting oppression, hierarchy, and inequality require critiques of assumptions embedded in law.

If the problem, as many critical legal scholars suggest, is a culture that encourages ways of thinking about the world that legitimate, render invisible, and/or naturalize relations of domination, then this "reality" must be critiqued and changed. Such change, for many of the new critics, will come about locally as spaces for resistance to dominant ideologies are identified and exploited. It is a discussion of these crucial strains of recent critical legal theories, strains approaching law as part of a cultural and ideological critique, that is missing from most of the analyses in this collection. The assumptions of much of this new critical work, far from being consistent with liberal legalism, challenge liberal beliefs in individual rights, neutral and impartial government and law, and even rationality itself (Joseph Ellin does provide a brief, provocative discussion and critique of skepticism in critical legal studies about the possibility of identifying objective and universal principles). Indeed, another recent liberal critique of critical legal theories summarizes (in a somewhat exaggerated and colorful way) the theme of these works as follows:

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 ... 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 (Farber and Sherry, 1997, p. 33).
In sum, this book's general inattention to postmodern theory's influences on much recent critical theory weakens the overall effort. It may be the case that one could find ideas in postmodern strains of critical legal theory emerging from or consistent with liberalism, rather than challenging it. And it might lead one to conclude that the new critical theories do not warrant the label "radical." But, by and large, chapters in this volume do not evaluate or criticize these important strains in current critical work. While several of the selections may stand alone as contributions to discussions about other aspects of critical legal theory (for example, Nunan's discussion of critical legal studies and legal realism, Solum's excellent review of debates over law's indeterminancy, Smith's review of feminist legal theory's history, and Meyers' analysis of Martha Minow's work on difference and social relations) they do not contribute much to an assessment of its relationship to liberalism, its status as "radical," or its potential utility in movements for fundamental social change.

REFERENCES

Farber, Daniel A. and Suzanna Sherry. 1997. BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW. New York: Oxford University Press.