Critical Legal Studies (James Boyle, NYU Press, 1992)

The International Library of Essays in Law and Legal Theory
Series Editor: Tom D. Campbell
Critical Legal Studies
Schools
Legal Positivism Mario Jori
Natural Law, Vols I & II John Finnis
American Legal Theory Robert Summers
Justice Thomas Morawetz
Law and Language Fred Schauer
Law and Economics, 'Vols I & II Jules
Sociological Theories of Law Kahei
Coleman and Jeffrey Lange
Rokumoto
Critical Legal Studies James Boyle
Rights Carlos Nino
Marxian Legal Theory Csaba Varga
Law and Psychology Martin Levine
Legal Reasoning, Vols I & II Aulis Aamio
Feminist Legal Theory Frances Olsen
and Neil MacCormick
Areas
Administrative Law Denis Galligan
Criminal Law Thomas Morawetz
Child Law Harry Krause
'Tort Law Ernest Weinrib
Family Law, Vols I & II Harry Krause
Contract Law, Vols I & II Larry Alexander
Welfare Law Peter Robson
Anti-Discrimination Law Christopher
Medicine and the Law Bernard Dickens
McCrudden
Commercial Law Ross Cranston
Consumer Law lain Ramsay
Communications Law David Goldberg
International Law Martti Koskenniemi
Environmental Law Michael' Blumm
Property Law Elizabeth Mensch and Alan
Conffict of Laws Richard Fentiman
Freeman
Law and Religion Wojciech Sadurski
Constitutional Law Mark Tushnet
Human Rights Law Philip Alston
Procedure Denis Galligan
European Community Law Francis Snyder
Evidence and Proof William Twining and
Alex Stein
Edited by
James Boyle
Washington College of Law
The American University
Legal Cultures
Comparative Legal Cultures Csaba Varga
Japanese Law and Legal Theory Kiochiro
Law and Anthropology Peter Sack
Fujikura
Hindu Law and Legai'Theory Ved Nanda
Law and Development Anthony Carty
Islamic Law and Legal Theory Ian Edge
Jewish Law and Legal Theory Martin Golding
Chinese Law and Legal Theo11; Michael Palmer Legal Education Martin Levine
Socialist Law and Legal Theory W. Butler
Future Volumes
Labour Law, Common Law and Legal Theory, Civil Law and Legal Theory, Law and Society,
African Law and Legal Theory, Legal Ethics and Cumulative index.
-n
NEW YORK UNIVERSITY PRESS

REFERENCE COLLECTION
This book is dedicated to the memory of Mary Joe Frug, a dear friend and one of the
leading scholars in both the feminist movement and the critical legal studies movement.
Mary Joe's scholarship exemplified everything that was best about 'femcrit' work. Like
Mary Joe herself, her writing was lively and witty, scholarly and irreverent. She was a
person who showed - both in her writing and her life - that many of the limitations we
impose on ourselves are unnecessary. She was kind and thoughtful and endlessly
charming. Her death made the world a smaller and poorer place.
James Boyle 1992. For copyright of individual articles please refer to. the Acknowledgements.
All rights reserved.
Manufactured in Great Britain
First"published in the U.S.A. in 1992 by
NEW YORK UNIVERSITY PRESS
Washington Square
New York NY 10003
Library of Congress Cataloging-in-Publication Data
Critical Legal studies I edited by James Boyle.
p. em. - (The International library of essays in law and
legal theory)
"New York University Press reference collection."
Jncludes index.
ISBN 0-8147-1173-1
1. Critical legal studies. I. Boyle, James, 1959ll. Series.
K235.C755 1992
340' .1-dc20
-~z35 .C755 1992

1 studies
Critical lega
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91-26751
CIP
;f Contents
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Acknowledgements
Series Preface
Introduction
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PART I LEGAL RULES AND LEGAL REASONING
1
2
3
Duncan Kennedy (1979), 'The Structure of Blackstone's Commentaries',

Buffalo lAw Review, 28, pp. 209-21 [Excerpt].
Peter Gabel (1980), 'Reification in Legal Reasoning', Research in lAw and
Sociology, 3, pp. 25-51.
Duncan Kennedy (1986), 'Freedom and Constraint in Adjudication: A
Critical Phen~menology', Journal of Legal Education, 36, pp. 518-62.
3
17
45
PART ll LEGAL mSTORY

4
5
6
Robert W. Gordon (1984), 'Critical Legal Histories', Stanford lAw Review,

36, pp. 57-125.
Elizabeth V. Mensch (1982), 'The Colonial Origins of Liberal Property
Rights', Buffalo lAw Review, 31, pp. 635-60, 733-5 [Excerpt].
Duncan Kennedy (1980), 'Toward an Historical Understanding of Legal
Consciousness: The Case of Classical Legal Thought in America,
1850-1940', Research in lAw and Sociology, 3, pp. 3-24.
93
163
193
PART ill SUBSTANTIVE LAW EXAMPLES
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7
8
Mark Kelman (1981), 'Interpretive Construction in the Substantive

Criminal Law', Stanford lAw Review, 33, pp. 591-673.
Regina Austin (1988), 'Employer Abuse, Worker Resistance, and the Tort
of Intentional Infliction of Emotional Distress', Stanford lAw Review, 41,
pp. 1-59.
217
301
PART IV LEGAL PRACTICE

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Peter Gabel and Paul Harris (1982-83), 'Building Power and Breaking
Images: Critical Legal Theory and the Practice of Law', Review of lAw
and Social Change, 11, pp. 369-411.
363
viii
PART V FROM LEGAL THEORY TO SOCIAL THEORY

10
11
12
13
James Boyle (1985), 'Modernist Social Theory: Roberto Unger's Passion'
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Harvard Law Review, 98, pp. 1066-83.
Duncan Kennedy (1983), 'The Politics of Hierarchy' from Legal Education
and the Reproduction of Hierarchy: A Polemic Against the System Chapter 7
pp. 78-97.
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Gary Peller (1985), 'The Metaphysics of American Law' caz;~-: La
73
,
l.Jomza
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R evzew,
, pp. 1151, 1181-219, 1274-90.
James Bo~le (1985), 'The Politics of Reason: Critical Legal Theory and
Local Soctal Thought', University of Pennsylvania Law Review 133 pp
685-780.
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Acknowledgements
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:
427
447
505
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Name Index
The editor and publishers wish to thank the following for permission to use copyright material.
James Boyle (1985), 'The Politics of Reason: Critical Legal Theory and Local Social Thought',
University of Pennsylvania Law Review, 133, pp. 685-780. Copyright James Boyle.
Buffalo Law Review for the essay: Elizabeth V. Mensch (1982), 'The Colonial Origins of
Liberal Property Rights', Buffalo Law Review, 31, pp. 635-60, 733-5 (Excerpt).
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601
Harvard Law Review for the yssay: James Boyle (1985), 'Modernist Social Theory: Roberto
Unger's Passion', Harvard Law_ Review, 98, pp. 1066-83. Copyright by the Harvard
Law Review Association.
JAI Press Incorporated for essays: Peter Gabel (1980), 'Reification in Legal Reasoning',
Research in Law and Sociology, 3, pp. 25-51 and Duncan Kennedy (1980), 'Toward an
Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in
America, 1850-1940', Research in io.w and Sociology, 3, pp. 3-24.
Duncan Kennedy (1979), 'The Structure of Blackstone's Commentaries', Buffalo Law Review,
28, pp. 209-21 (Excerpt); Duncan Kennedy (1986), 'Freedom and Constraint in
Adjudication: A Critical Phenomenology', Journal of Legal Education, 36, pp. 518-62 and
Duncan Kennedy (1983), 'The Politics of Hierarchy', from Legal Education and the
Reproduction of Hierarchy, pp. 78-97. Copyright Duncan Kennedy.
Review of Law and Social Change for the essay: Peter Gabel and Paul Harris (1982-83),
'Building Power and Breaking Images: Critical Legal Theory and the Practice of Law', Review
of Law and Social Change, 11, pp. 369---411.
University of California Press Journals for the essay: Gary Peller ( 1985), 'The Metaphysics
of American Law', California Law Review, 73, pp. 1151, 118-219, 1274-90. Copyright
1985 by California Law Review Inc. Reprinted by permission.
Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity .
..,
Series Preface
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The International Library of Law and Legal Theory is designed to provide important research
materials in an accessible form. Each volume contains essays of central theoretical importance
:in its subject area. The series as a whole makes available an extensive range of valuable material
which will be of considerable interest to those involved in the research, teaching and study
of law.
The series has been divided into three sections. The Schools section is intended to represent
the main distinctive approaches and topics of special concern to groups of scholars. The Areas
section takes in the main branches of law with an emphasis on essays which present analytical
and theoretical insights of broad application. The section on Legal Cultures makes available
the distinctive legal theories of different level traditions and takes up topics of general
comparative and developmental concern.
I have been delighted and impressed by the way in which the editors of the individual volumes
have set about the difficult task of selecting, ordering and presenting essays from the immense
quantity of academic legal writing published in journals throughout the world. Editors were
asked to pick out those essays from law, philosophy and social science journals which they
consider to be fundamental for the understanding Of law, as seen from the perspective of
a particular approach or sphere of legal interest. This is not an easy task and many difficult
decisions have had to be made in order to ensure that a representative sample of the best
journal essays available takes account of the scope of each topic or school.
I should like to express my thanks to all the volume editors for their willing participation
and scholarly judgement. The interest and enthusiasm which the project has generated is well
illustrated by the fact that an original projection of 12 volumes drawn up in 1989 has now
become a list of some 60 volumes. I must also acknowledge the vision, persistence and constant
cheerfulness of John Irwin and the marvellous work done by Mrs Margaret O'Reilly and
Mrs Sonia Bridgman.
TOM D. CAMPBELL
Series Editor
The Faculty of Law
The Australian National University
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Introduction*
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Most introductions begin by emphasizing the impossibility of the task ahead, presumably
seeking to excuse failure or magnify success. Sadly, this introduction will be no different.
My task in this volume is, in 600 pages, to produce a set of essays which fairly represents
critical legal studies (CLS) - a progressive school of legal theory. The taslC is a difficult one
for a number of reasons. First, :Sheer volume. When the last CLS bibliography was compiled
in 1984, 1 there were 516 articles and books featUred mit. The hwhber has probablydoubled
by now. Second, many virtues could be claimed for 'critical leg~ theorists, -but brevity is
not one of them. A CLS article is more often a 100-page monograph than a 20-page essay.
Since the philosophy of this series is to reproduce complete, unedited versions 6f previously
published essays and to resort only sparingly to the use of selective quotation, I was denied
that crutch of editors everywhere, 'the representative exceq)t'. Third, CLS )s marked by
a diversity of approach ahd a'oreadth of method calculated to drive an editor to distraction
and early senility. A really representative book' on critical legal studies would include examples
of socialist, 2 structuralist, 3 deconstructionist, 4 feminist, 5 phenomenol6gical6 and Hegelian7
critical legal theory - as well as four or five other approaches: It would explore a number
of CLS analyses of race, 8 gender9 and class, 10 and give ample room to the thoughtful
criticisms which hav~ heed made of them. 11 It would also be longer than the Encyclopaedia
Britannica. This is not that oook.
In order to make my task even 'l'emotely feasible, I tried to reduce my field in a number
of ways which I should reveal here. First, I took account of the companion volumes in this
series- most notably Feminist Legal Theory (edited by Frances Olsen) and ConstitUtional
Law (edited by Mark Tushnet}. These works reduced the pr~s~ure on me hr re~rodu.cing
a number of excellent CLS essays which would have had a fair claim to a position here.
Second, I chose works which were frequently cited but not ~asily available, particularly to
those outside the United States. This allowed me td ignore the important CLS work which
has appeared in books rather \han journals.l2 Third, there are now a number of books on
CLS, 13 collectibns of CLS essays, 14 and symposia on critical legal thought.I 5 Each has its
own distinctive slant. By taking such radically different approaches to CLS, they have relieved
me of some of the awful responsibility of beilig 'representative' and I offer my profound
thanks. Fourth, my task here was to give a selection of CLS essays. My coverage of the
critiques of CLS is limifed to the 6ccasional aside and a footnote bibliography. After all these
limitations, the task that remained was merely impossible. I would be 'the last person to say
that the essays included here represent the 'essence' of critical legal studies. They represent
one possible reading of critical legal theory, a reading which attempts to empba~ize and
exemplify a particular set of CLS contribu"tionstb legal and social thought. I offer my profound
apologies to the authors whose work was omitted and invite the reader to make up for the
undoubted deficiences of this collection by ~xploring the pieces described in the notes to this
Introduction.
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Introduction
'Critical Legal Studies' (or CLS) is the unwieldy name given to a 15-year-old movement
in legal theory which began in the United States but has now spread, if that is the right word, ,,
well beyond North America. Though its proponents are a diverse group, they are generally J~
marked by a commitment to a more egalitarian society and a dissatisfaction with current legal
scholarship. Many of them stress the importance of building a strong progressive community
inside law schools and the legal profession, while also being politically active outside the 1
academy.
The idea that academics have a moral responsibility to work for social justice, both inside
and outside of the ivory tower, is not a surprising or even a particularly new one. What is
surprising is that a left-wing academic movement should be expanding dramatically wlien 1
conservative political parties have triumphed in many of the advanced Western democracies ~
and when conservative ideas are dominating public policy and academic debate. Add the fact '
that this is a theoretical movement in legal academia, and surprise might tum to disbelief.
Law is seen by many as one of the most conservative and anti-theoretical of academic
disciplines. A law school is the last place you would expect to find a progressive theoretical
movement, even in more favourable times. The critical legal studies movement is thus triply .J
im~lausible. E pur si muove, as Galileo is supposed to have muttered after recanting his ideas :
about the earth's orbit. 'And yet it does move.' This Introduction will try not only to introduce
the essays which follow but also, in the process, to explain the apparent anomaly of CLS's
succes~. Finally, I will ask whether the reasons for that success are specific to the United
States, or whether critical legal theory has a larger and more international relevance.
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I have divided this volume into five parts - Legal Reasoning, Legal History, Substantive
Law, Legal Practice and Social Theory - each corresponding to an important aspect of
critical legal theory. Being a slave to sequence, I shall discuss them in that order.
I Legal Rules and Legal Reasoning

There is no single, monolithic CLS analysis of legal doctrine. At best, there is a heterodox
collection of theories whose similarities outweigh their differences. Since neither the collection
!lOr this introduction can hope to do justice to them all, I will limit myself to an oversimplified
summary of two of the major themes.
The first theme comes originally from Roberto Unger's brilliant book, Knowledge and
Politics. Unger points out that the liberal theory of the state is premised on the idea that there
are no moral essences, that values are subjective and relative. This idea makes the market
and democracy seem like the only possible social institutions for a liberal society. Neither
institution claims to produce The Good. Each merely adds up the (subjective and arbitrary)
preferences of the citiz~nry as expressed through dollar or vote. It is less clear, however,
where this leaves the legal system. When the judge interprets the law, how can he or she
avoid the imposition of (subjective and therefore arbitrary) pre.ferences? The most obvious
answer to this question is the formalist one. Judges must interpret the l_aw by finding and
applying the core meaning of the words of the rule. This seems to allow the judge to escape
from the fact that there are no moral essences. But as lJnger points out, formalism relies
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on a new kind of essentialism- the belief that there are essential meanings to words. 16 We
cannot merely shift our essentialism from values to words. Formalism does not solve the
dilemma of subjective value; it merely restates it. Attempts to build a new formalism on the
basis of shared purposes, process theory, or law and economics have proved equally
vulnerable. 17 This failure has profound implications not only for the traditional theory of
adjudication, but also for the legitimacy of the liberal state. What has become of the 'rule
of laws and not men'?
To some people, the most important feature of Unger's analysis is the fact that it connects
the theory of adjudication and legislation to the more general topic of the legitimacy of state
power. To others, it is a convenient background theory against which to expose the political
choices involved in apparently 'neutral' legal decisions. To still others, Unger's most important
point is that this is not really a 'philosophical' argument at all. A certain experience of ~ocial
life causes people to feel that values are subjective, or that words Jack essences. Wtthout
this experience of life, the philosophical demonstration of relativism in morals and language
would cause no more of a problem to judges and lawyers than the demonstration of the
arationality of inductive logic causes most of us when we drop something and expect it to
fall. Thus, though we may begin our search in the dry world of analytical jurisprudence,
we are pushed, little by little, to an examination of our experience of daily life. (It is this
inclination which animates Peter Gabel's essay on 'Reification in Legal Reasoning'.)
The second major strand in CLS writing on legal reasoning comes from legal realism. By
legal realism, I do nQJ: mean the caricatured theory that judges decide cases according to what
they had for breakfast. Instead legal realism should be understood as a complicated and subtle
movement which: (i) Expressed scepticism about both the possibility and desirability of
deciding cases by interpreting words; 18 (ii) Argued that the legal fabric could best be
understood as a set of principles and counter-principles, rules and exceptions, policies and
counter-policies. 19 In this view, ambiguity, tension and opposition were not unfortunate and
occasional aberrations; they were constitutive of the life of the law. The motive power behind
legal arguments was the fact that every legal decision sought to reach 'closure' by reconciling
the opposing political and social viewpoints to which legal doctrine gives expression; (iii)
Claimed that there was no bright line separating public and private law, and that the rules
of private law could not be deduced merely from the idea of a free market. 20 The 'private'
rules of contract, property and tort were not qualitatively different from the 'public' rules
of environmental, administrative or civil rights law. Both kinds of rules had to be chosen;
they were not natural or neutral. Both had distributive consequences; both were politically
contentious. Since the rules of private law actually defined the shape of the market, this
argument had the effect of denaturalizing the concept of 'the inherent attributes of property'
or the 'free market'. The argument that we should 'deregulate the free market', with its
overtones that we could restore some pre-existing entity to its natural shape, is revealed to
be merely a preference for one set of 'regulations' over another. We could have a free market
in which workers had property rights in decision-making in the workplace and residents had
the right to veto certain kinds of development in their area. It would just be a different kind
of free market, nothing more.
As the essays in Part I show, critical legal theory takes all of these insights and pushes
further. The excerpt from Duncan Kennedy's essay 'The Structure of Blackstone's
Commentaries', formalizes and generalizes the realist project of portraying the legal system
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as a set of tensions and oppositions rather than a coherent whole. Using methods provided
by structuralist anthropology, Kennedy portrays the law as both 'an effort to discover the
conditions of social justice' and a method of mediating 'the fundamental contradiction between
self and others'. By fundamental contradiction, Kennedy means the pervasive and insoluble
tension posed by our need and fear of others. In this vision law is not a coherent and logical
set of norms yielding concrete answers, but rather a recurring pattern of contradiction and
denial. The drive to mediate this 'fundamental contradiction' literally produces the existing
system of rules. For example, within contract law we wish to allow parties to make benefidal
connections with each other, yet at the same time we also fear that they may lie, cheat, make
misrepresentations, use duress and overreach. The thesis 'a contract is a contract' meets the
antithesis 'except when there is misrepresentation'. But the definition of misrepresentation
simply plunges us back into the same problem, distinguishing between acceptable
misrepresentation (words of advertisement or puffery) and unacceptable misrepresentation.
In this sense the contradiction is never solved; it is merely deferred or moved to a different
level of abstraction.
This kind of scholarship offers several attractions. First, the conflicts which are revealed
'under the doctrine' give legal scholars access to the reified representations of society that
help make legal discourse seem legitimate. For example, the increasing use of 'implied terms'
and 'non-derogable warranties' in contracts allows decision-makers to uphold (and probably
believe) the idea that contracts are mere vessels of private agreement, while simultaneously
appealing to the antinomian idea of contracts as methods of public regulation. Thus we can
affirm the optimistic message of the private sphere (parties settle their own affairs), without
-admitting its accompanying pessimistic message (in the absence of structural, and potentially
limitless, interference by the state, strong parties will misuse their superior bargaining
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power). Studying the twists and turns of the attempts of judges and lawyers to mediate 'the
fundamental contradiction' in legal doctrine offers us a different picture of social theory than
we would receive from the works of Locke or Hobbes or Rawls. It is a much more detailed,
more real kind of social thought: the product of a large number of minds within the social
elite who are trying to achieve the conditions of social justice as well as being driven to create
a convincing web of apologetic thought which justifies the way things are. Yet, as Kennedy
shows, the method is not confined to the fine detail of contract law. It also has implications
for the liberal theory of state and civil society.
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Second, the structuralist method provides a powerful analytic tool which picks apart doctrine
with impressive ease and precision. Thus, CLS offered lawyers and law teachers a method
which had considerable relevance to their daily work. Whereas external criticisms of the legal
sy~stem tended to fall on deaf ears because they failed to deal with the day-to-day realities
of legal academia and legal practice, the early CLS structuralist work was in tu,ne with ideas
which academics and lawyers already held. 'The more sophisticated a person's legal thinking,
regardless of her political stance, the more likely she iS to believe that all issues within a
doctrinal field reduce to a single dilemma of the degree of collective as opposed to individual
self-determination that is appropriate. 22
There is an irony in all of this, however. CLS has often been considered as a realist
movement, par excellence. Yet the structuralist method put critical legal theorists oddly close
to classical doctrinalists such as Williston. Admittedly, one is a deconstructive and the other
a constructive activity, but there are marked similarities. In both the high formalism of Williston
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and the high radicalism of critical legal thought, connections are made between very abstra~t
political concepts and very concrete fragments of legal doctrine. In Williston, the abstract
political concepts are ideas such as the natural legal language of the marketplace; the
connections are deductive chains of logic based on the essential meanings of words, while
the concrete fragment of doctrine is a neutral and unambiguous rule applied with scientific
objectivity. In critical legal thought the abstract political concept may well be the fum;lamental
contradiction betwee,n self and others; the connections may be provid by a structuralist
account of the way that legal doctrine works out that contradiction, while the concrete fragment
of doctrine is a conceptual box full of policy arguments. Thus, despite their disparate aims,
both the high formalism of the 1890s and this structuralist analysis from the 1980s have deep
similarities. Both present a privileged abstraction from a large amount ofjnformation. Both
say, in other words 'this is the true, the essential deep structure'. The tension between this
strong claim and CLS's general anti-essentialist tendency is discussed elsewhere in the
volume. 23
Peter Gabel's essay 'Reification in Legal Reasoning' takes a very different tack from that
suggested by Duncan Kennedy's work. Where the structuralist project produced elegant maps
of the fault lines along which doctrinal fields are organized, Gabel suggests that legal thought
is merely part of,a larger practice of reification - the turning of concepts or social roles into
things. The legal system turns a confrontation between a migrant worker and a multinational
agro-business comp~Jny into a 'contract dispute' in which two 'parties' confront each other,
shorn of reference to class, economic power, available education and so on. The achievement
of such a system is that it can claim to have achieved formal equality. In the eyes of the
law I am 'equal' to one of the Rockefellers in the sense that both of us have the formal right
of access to the courts, the formal right to vote and so on. The danger of such a system is
that by 'reifying' both the migrant worker and the multinational, turning them into things
called 'equal contracting parties', it presents as an accomplished fact an equality which is
completely spurious. Gabel extends_ this line of criticism, which has strong roots in both Marx
and Sartre, 24 into an analysis of social roles in contemporary society.
[ E] ach person experiences himself aS' a thing-like function of 'the system', understood as a semiautonomous strticture which constitutes the group's inertia ... Thus a 'small businessman' experiences
himself as a 'small businessman', a 'secretary' as a 'secretary', a 'child' as a 'child' ..... [T] o say
that each person experiences himself as thing-like is to express the meaning of alienation: each actor
is passivized within a role that denies him recognition as a connected, active, potentiated and
intersubjective person. One is never, or almost never, a person; instead one is successively a 'husband',
'bus passenger', 'small businessman', 'consumer' and so on. 25
Of course, social roles are actually created by human beings, but they appear to have an
objective character - immune to change or personal intention. In Gabel's view, legal
reasoning is a system in which one manipulates concepts that share exactly this reified and
apparently thil}g-like quality. The obvious response is that legal concepts are merely
abstractions and that abstractions are necessary for thought. Confronted with this criticism,
Gabel would apparently agree that the use of abstractions is a necessary feature of life, but
would argue that we must remember that these abstractions were created for a purpose. The
difficulty comes when we 'forget' that legal concepts are abstractions and then repress the
knowledge that we have forgotten. At that point we imagine ourselves actually to be living
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in a world ~frights-holders, legal subjects and formal equality. The language of legal reasoning
and legal nghts comes to be seen as a description of the way things are rather than a moral
and political choice. To use a simple example, if I put a gun to your head and force you
to work for me, we should say that the contract is void because 'there is duress'. On the
other hand, if I am the only employer in town and the choice is 'work or starve', we say
that ~there is n? duress'. We say this because the conceptual system of the law recognizes
physical coercion but not economic coercion. Of course, the choice to recognize one but
not the other is a political and moral decision, but it does not seem like one. It seems instead
that we are simply describing two sets of facts.
The animating idea throughout Gabel's considerable body of work is that this kind of
reification is the barrier which prevents us from expressing a longing for connection and
which conceals a deep feeling of social alienation. Thus, he has argued that the attraction
of interpreting the Constitution according to the intent of the Framers comes from the fact
that it appears to put social choices in the hands of a distant, powerful group of father figures.
To quote Gabel's title, original intent relies on the idea that 'Founding Father Knows Best' .26
Tur~g to the rights debate, Gabel claims that the discourse of rights is actually a way of
calhng up a fantasy community which embodies all of the elements that are lacking in our
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realliveS. Admittedly, Gabel's ideas are controversial within the CLS movement. Some
would disagree with his focus on the psychoanalytic dimension of repression and with his
apparent belief that there is an unalienated existence to be found underneath all those encrusted
layers of social :ole and reified concept. Nevertheless, as will be seen in Part V, in pointing
out the connection between legal and social reification, he has developed one of the most
important lines of theory in the movement.
The final essay in Part I, 'Freedom and Constraint in Adjudication', also by Duncan
Kennedy, presents yet another perspective on legal reasoning, one more reflective of recent
CLS work on le~al ar~ent. !<ennedy's basic premise is that arguments about legal reasoning
s~ould ~e examt~~ m a p:uncular context rather than in the abstract. Thus, Kennedy puts
htmself m the positiOn of a JUdge who has been assigned a case which, at first blush, 'seem [ s]
to present a conflict between "the law" and "how-l-want-to-come-out"'.28 It is from this
perspective th~t. he examines the extent to which 'the law' constrains him from reaching a
particular decision. Is the law an infinitely manipulable mush of signifiers or is it an iron
cage? At the same ~e, Kennedy wants to ask, 'If there is a determinate answer to a particular
case, w~ere does It come from?' From the internal logic of the rule? From community
expectations of the legal profession? From the judge's need to maintain a certain degree of
legitimacy?
. Two o~serva~ons should be borne in mind when reading Kennedy's essay. First, Kennedy's
aim here IS to discuss the degree to which a judge is, as a matter of fact, left free or constrained
by1egal doctrine. At the beginning of the article, Kennedy makes no assumptions about the
motives driving the particular judge. This judge might be a sincere and agonized formalist
who is seeki.ng to discover how milch the law in fact constrains him, or a corrupt judge who
has bee~ bnbed. For the moment, the motive can be put aside. It is Kennedy's app;trent
assumptiOn t?at only by this preliminary analysis of the determinacy of legal reasoning can
we even begm to apJ)roach the question of the proper judicial role. After all, it would not
be much use telling the judge that he or she must 'objectively apply the rule to the facts'
in order to live up to the judicial role, if it turned out that there was no such thing as an
J.
I
!t
J
xix
objective application of a rule to facts. If we fear that some of our judges are actually un?er
the sway of powerful interests, but hoped that 'the law' would prevent them from making
corrupt decisions, then it would be of fundamental importance to discover what kinds of limits
the law in fact imposes on the judge.
The second point is a cultural one. This essay originally appeared in the Journal of Legal
Education, a publication received by every law professor in the United States. Kennedy is
writing for an American, post-realist audience and much of what he says will be inexplicable
without some knowl~ge of the assumptions of that group.
To a greater extent even than the rest of the American legal profession, the professoriate
tends to see legal doctrine as manipulable and indeterminate - principles as always being
balanced by counter-principles, policy arguments as meeting counter-policy arguments, and
so on. They hold this realist view of law because it is deeply coded into their professional
lives. Under the relentless and sometimes painful probing of the Socratic method, the firstyear student learns how to make exceptions devour rules and rules devour exception&. They
are taught to see wprds as solid and immutable and then to tum that method on its head so
that words are merely place-holders for, or short-hand descriptions of, policy goals. For
example, the law impose!!, strict liability on manufacturers of goods and negligence on providers
of services. Asked the question whether blood from a blood bank is a 'good' or a 'service',
many first-year students will struggle desperately to define the 'essential features' of each.
Gas and water are services, so maybe blood is a service because it flows. No, it's a 'good'
because it com~s in a bag. At some point, the ludicrousness of the whole performance will
become apparent to them and they will begin to wonder whether they should look to the reasons
why society might warit to impose strict liability or negligence, and use those reasons to decide
the question.
This fall-back position provides no ultimate relief. Lurking at the back of the student's
awareness will be the knowledge that there is no single, coherent policy or reason to be found
behind a rule of law. 29 Wherever the student finally chooses to make a stand, one thing is
certain; the idea that legal doctrine is determinate, clear and capable of objective interpretation
will have all ,the credibility of Santa Claus.
No rule is automatically immune from this kind of treatment. Does the Constitution's
requirement that the President be 35 refer to actual calendar age, or to the level of maturity
that would have been expected in a person of the 18th century at age 35? The student makes
the argument with a smile, but the smile signifies the knowledge that, absurd though it might
be here, the latter method would sometimes be the 'right' one to apply to a rule.
Having absorbed this vision through law school, confirmed it in law practice (in front of
judges who sometimes act like formalists, sometimes like realists) and used it in their teaching,
professors must decide what implications it has for their theory of law and state. In recent
years many have turned to other disciplines, only to find (in Wittgenstein, Foucault, Derrida
and Lacan) that this vision of language is the common property of most contemporary
intellectual thought. Both inside and outside CLS, a body of work grew up, celebrating or
decrying the free-play of signifiers across the pages of the law reports. Some used this View
of language to show that law and politics could not be separated. If the words were not deciding
the case, if they did not and could not compel a particular result, then surely we must
acknowledge that each decision must reflect conscious or unconscious political choices. Perhaps
this was an opening for political activism and democratic change. (There are difficulties with
XX
this view which I will discuss later.) Others, generally outside CLS, took a tragic modernist
view of things. All was chaos. Nothing could be done but to sit back and make cultured but
cynical remarks.JO
Kennedy's essay has to be seen within the context of the professional culture I have just
described. In his insistence that any analysis of legal reasoning be located in a particular place,
time and personal role, Kennedy is attacking both the traditional jurisprudes who create theories
for all law at all times and the tendency in modem American academia to reason from a
highly theoretical view of language towards particular conclusions about legal reasoning.
Readers from other, more formalistic legal cultures may find his ideas shocking or inexplicable,
perhaps both. At the end of this Introduction I shall have more to say about the relevance of
CLS beyond the United States. For the moment, suffice it to say that Kennedy imagines a large
part of his audience to be those who claim that legal doctrine could never be determinate or
constraining. His point is that, from the perspective of the particular legal actor, doctrine
sometimes does possess an apparent 'objectivity'. His essay sets out to explore the concrete
conditions under which that could be the case. These are his goals. It's another question whether
Kennedy is correct in his assumptions about the total linguistic relativism of the CLS portion of
his audience. In my view the strongest version of the indeterminacy thesis ever put forward by
anyone associated with CLS would be something like this: 'Nothing internal to language
compels a particular result. In every case the judge could produce a wide range of decisions
which were formally correct under the canons of legal reasoning. Of course, shared meanings,
,community expectations, professional customs and so on may make a particular decision seem
inevitable (though that happens less than many people think). But even in those cases, it is not
the words of the rule that produce the decision, but instead a bevy of factors whose most marked
feature is that they are anything but universal, rational or objective. Legal rules are supposed
not only to be determinate (after all, decisions based on race prejudice are perfectly determinate), but to produce determinacy through a particular method of interpretation. That method
of interpretation alone, however, produces indeterminate results and it cannot be supplemented
sufficiently to produce definite results without subverting its supposed qualities of objectivity
and political and moral neutrality.' In a thoughtful liberal critique, Andrew Altman has argued
that my conclusion is wrong because the community norms, language games and fragments
of professional ideology are actually part of the law itself. I would be happy to agree that
they are, indeed, an integral part of what we think of as 'the law', but I fail to see how they
acquire. the universal, neutral qualities necessary to salvage the liberal project. 31
A number of points in the paper bear particular attention. First, notice Kennedy's description
of the process by which a set of cases in a doctrinal field is arranged and then rearranged
by, different legal arguments. This is an expansion and development of the realist work on
legal reasoning exemplified by Llewellyn and, later, Levi. After years of resisting this view
of legal reasoning, or exiling it to the world of practice rather than theory, there are signs
that mainstream Anglo-American jurisprudence is beginning to accept it at a deeper level. 32
Second, Kennedy's account of the predicament of the judge is particularly interesting. CLS
scholars have tended to assume (rightly in my view) that there was altogether too much legal
theory constructed from the existential perspective of imaginary judges confronting the nexus
of interpretive conflict and role anxiety. In this article, however, Kennedy returns to this
very traditional jurisprudential form and argues that the judge has no alternative but to make
moral and political choices during her process of decision.
kn~ws
~,
'
xxi
ini:~a!i:::p;e~;:~o; ~ h~: :!~~~~~;~;s~ ::o~~:d;~~:~~~

1,
The judge
that her
turn out to be stlly' confused
'th ~ initial apprehension no matter how silly or unJUSt
She could choose always to go fWl d e . . g the choices imp'licit in her decision. In doing
. h 1"
"em as a way o ran mmzm
. 1
it ~mg t a.er se '
the risk that her initial apprehensions were unconscious y
thts, she would, of course~rub~
hich would thus be reinforced, or just that they were
structured by a~ unreas~n
tas ~f she re'ects her initial apprehension, Kennedy would
frequently st~ptd and unJU~t. ~venskin the keld of law what it 'says' any more than there
argue,
lS
wh;t they were about to make. The judge could
would be o as ng
.
h
derstood them the values of the oppressed as
ap?ly
valuesfof
eo: idiosyncratic' values, or the
tdentlfied lfl any o ~
uld choose to be contrary and always dectde m the
of some set of foundmg fathers. She ~d h
values What she could not do is to choose
t if only to avm er own
.
fi 1
way she e t was unJUS ' .
. d
ld be unable to decide the case accordmg to
,
1 th 1 , Sometimes the JU ge wou
. . .
to app
~ a:v .h had selected The field of law would present an apparent ObJectlVlty
whatever cnterta s e
' ' . act' would revent her from simply choosing a different
to her. In that tase, Kennedy s comp h
p utcome for which she could not present
outcome anyway. She is bound not to~ o~e t~om: ~hen the internal normative force of the
a good legal argum~nt. There would . so e tm~er initial choice of values was wrong, or
authoritative matenals persuades the JUdge that
.
hi h in Kennedy's
.
d b1guity of this whole process w c ,
1
wrongly applied. It 1s the comp eXlty ~n am
nts which jurisprudes have traditionally
view' precludes the abstract dogmatic pronounceme
made about it:
ther~ ~o w:ypi~! ~tr,i~:S
~o
~e
:~l:~:~s~~:r
c~oose
imagin~ ~alues
b' tive but at the next moment it may appear manipulable.

1 ar ument essentially one thing or the
The rule may at any given moment appear o ~ec .'
It is not, as I apprehend_ it from with~~ t~e ~:;{t~~~:~:~orld ~ere a::e professors of jurisprudence
other ... All over the Umted S~tes an m ee
nature of law. Where are they getting it from?
who think they possess professional knowl~ge ~~kth~ose I have been addressing are just made up
For my own part, I think answers to questions I e
ovin the earth.33
out of whole cloth. Show me your ground before you pretend to be m
g
II Legal History
ld b om lete without mention of legal history. In
No account of critical l~gal theory wou
ec P
CLS The difficulty lies in trying to
1
one guise or another, his~ory h~s been fundam:ta tossa s. My first, rather craven, piece
bring out those many gmses With only two .or ree e y .
and seek out a number of
of advice is for the reader to go beyond thts volu~~ alt~g~ther k Morton Horwitz's The
books which have inspired or influenced all CLS Istorhical' wt oBry. argui'ng that private law
.
La th first book on sue a IS

Transformatwn of Amerzcan w IS e
_ . list subsidies during the industrial
1 al history a non-apologetic
doctrines of tort and contract were used as pr~ c~Ita .
revolution, Horwitz opened u~ a whole new field m ;en~an ~!though ofuers had trodden
study of the institutions of pnvate, .as opposed ~o ,pu IC, aw. de it impossible to ignore.
this path before, the depth and clanty of Horwitz s argu:e~ ~\ tion of wealth Duncan
While Horwitz pursued law's instrume?tal ~f~ects on e . IS n ~the connectio~ between
Kennedy's early work offered a contendmg VISIOn of legal history
.
I mean
. an d socia
1ch ange By legal consciOusness,
legal consciousness and other ideological
.xxii
the legal profession's unreflective ideas about interpretation, legal doctrine, the structure of
the economy, the role of courts and so on. The tension between these two approaches has
both pervaded and animated critical legal history, with some of the most important historical
work offering syntheses of the two sides. Mark Tushnet's books on slavery and the litigation
strategy of the NAACP are excellent examples.34
If there is a pattern to the last ten years, it is that CLS historians have turned to the
ideologi~al, legal ~onsciousness side of the story, driven in part by a realist-inspired argument
that particular social orders do not require particular sets oflegal relations in order to function.
For ~~amp~e, sociologists and economic historians have often claimed that certain legal and
admimstrative forms were necessary for the development of capitalism. The Weberian tradition
in so.cial science has tended to assume that law must be rationalized into formal codes
containing rules of universal applicability, that procedure must be streamlined, administratio~
made pr:<~ictable and the legal profession stripped of its anachronistic trappings. Yet when
Weber himself looked at England, the most developed capitalist nation of his day, he found
a legal ~ystem which was in most ways the antithesis of everything he had predicted. Instead
of a umversal code, there was the common law. Instead of rationalized administration he
found tradition, pomp and ceremony. Instead of universal, general rules, there was a ~ass
of parti:ular doctrines, each keyed to a different procedural form. Where was the necessary
connectiOn between legal form and social form? The argument goes further. According to
~e post-reali~t tradition, 'private property' is merely the name for the bundle of disparate
nghts ~ecogmzed by the legal system. We could parcel out those rights differently without
off~n~ng the 'logic of capitalism' - separating ownership from control, or investment
decisions from operating decisions. In what sense, then, is there a necessary connection
between s?~e particular set of legal rules and a particular type of society? At the same time,
however, It Is clear that both lawyers and lay people have not perceived there to be this much
flexibility and contingency in the relationship of their law to their society. For this reason
much rece~t critical legal history has focused on the historical patterns of perception, th;
legal consciOusness, rather than on the instrumental relation between rules and results.
There were, however, a number of other important strands in the CLS approach to history.
The work ?fa nu~ber of British historians such as E.P. Thompson35 and Douglas Hay36
was ~~tensiVely ~med for conceptual tools and inspiration, and a distinctively British style
of cntic~l legal history de~eloped. David Sugarman is an excellent example. 37 Following
these wnters, CLS legal history has demonstrated a profound (and articulate) ambivalence
to the rule of law, celebrating its position as a human accomplishment of enormous importance
yet also exposing its limitations and pointing out the ways it can be used to defend or obscur;
existing injustice. Another important tendency culled from British historians, particularly from
Thomp~on . has been~ fasc~~ation with the way that powerless groups have used law to argue
for the JUStice of their positions or to suggest new visions of society. American historians
have also played an important role. Eugene Genovese's Roll, Jordan Roll: The World the
8
Slaves .Made3 provided a vision of 'hegemony', the acceptance by all classes in. society of
the bebef-system of the dominant class so that 'the way things are' comes to seem both natural
and necessary.
At the same time, CLS historians have been sensitive to the way that no 'hegemony' is
ever complete. The legal form captures the ideologies of the day like flies in amber the
dominant views together with those of the powerless. Indeed, it is precisely the idea' that
.xxiii
Jaw contains this rich and contradictory collection of normative images that inspires the best
of CLS work, a point those who call the critical scholars 'nihilists' have signally failed to
~~.
Part II on legal history tries to evoke each of these themes in critic~ leg.al scholarsh~p.
Robert Gordon's essay, 'Critical Legal Histories', provides a thoughtful histonography which
uses a critique of functionalist histories to explain why CLS scho1~rs ~ave.follo~ed ~e .P~ths
that they have. Gordon first develops the premises of the functio~s~ hist~ne~ he IS cntlctz~g.
If put together in a single statement, they would sound somethmg hke this: Law an~ so~Iety
are separate social categories. Societies have needs and progress along an objectively
determined evolutionary path. Law responds to these changing needs; thus legal systems s~ould
be described and explained in terms of their functional responsiveness to the vanous,
predetermined stages of social development. ' 39 Gordon delibe.rately pain~s this . set of
assumptions with a broad brush so as to capture both the form~hst an~ r~l.Ist versions of
the evolutionary functionalist perspective. Though the full details of his cnttque cannot be
reproduced here, the animus behind them certainly can.
The notion that law always is, or at least ought to be, functionally adapting to evolving social needs
is so deeply embedded in standard legal speech that one isn't likel~ to make a le~al arg?IDen~ .of
any length without at least mentioning it. Th~s notion p~e&mnabl!' persists because of Its serviceabibty
to the liberal idea of law as the neutral arbiter of social confhct. It tells the managers of the legal
system that their basic instructions are specified by a social process outsi~e of the legal syste~ ~d
that they have no responsibility for that process except to solve ~e t~hnical p~o~l:ms of d~vis~g
functional responses that will help rather than hinder it. Hence, the mevitable ambiguities of legislau~e
command, prior case law, custom or constitutional text ~eed never fo~ce a legal ~ystem to ~e ~am
of political choice because its managers can always claim to be ~ervmg ~~ logic of an histoncal
process or immanent social consensus that exists beyond and pnor to pohtics.
It is the deeply apologetic cast of both the 'law office history' and academic histories thus
constructed that motivates Gordon's critique. The substance of his criticism, and the idea
that he has i~ common with a wide range of other CLS historians, is that the evolutionary
functionalist approach massively overestimates the extent to which society is determined by
inevitable social forces and underestimates both the importance of human action and the range
of possible outcomes.
We invent shorthand labels like 'modernization' as a way of summarizing what has happened in and
trying to generalize about particular societies. Then, by a trick of the mind, we suddenly rei~ ?ur
label into a process that had to happen the way it did. The next thing you know, we start explammg
the whole contingent miscellany of contemporary social practices (especially the nasty ones) as the
natural outcomes of the 'modernization process'. But if there is no such single process, there can't
be any single set of functional responses to it either. 40
Notice the similarity between this argument and Gabel's argument earlier. Each focuses
on a false objectivity produced by a process of abstraction, reific'Ation and denial. For me,
the single most useful way to understand CLS scholarship - whether about legal history,
social roles sexual stereotypes, economic organization or classroom hierarchy - is to
concentrate 'on this critique of reification. In each of these areas, CLS writers say 'things
could be otherwise!' - a message which hardly justifies the 'nihilist' sobriquet conferred
xxiv
upon them by their less thoughtful critics. Gordon uses several CLS contributions to the history
of American labour law as an example of this process in legal history. 4I
[T] he functionalist lawyers who helped to design the ground rules regulating labour-capital conflict
?fter World ~ar II assum~ that the expansion of the total economic pie (which was in everyone's
mten~~t) requrr~ unconstram~ management discretion over investment decisions and general working
conditiOns, leavmg to resolutiOn through collective bargaining only the residual issue of how to divide
up the re~ultin~ surplus: Critical ?istorian~ treat this more or less unexamined background assumption
of a rela~IOnship of ~ocial n~essity ~efficient production requires legal forms preserving managerial
preroga~Ives) as an Ideological practice that helped to produce social necessity because it suppressed
alternative methods of governing production as unthinkable or unrealistic.42
Of course, most contemporary schools of American legal history are marked by a rejection
of some part or other of the functionalist credo. The bulk of Gordon's essay consists of an
examination of each of these variations, with the ultimate conclusion that almost all of them
suffer from the debilitating vices, if not the apologetic tone, of the original. Along the way,
Gordon dutifully points out that history which portrays law as nothing more than a tool of
the ruling class shares all of the functionalist faults. In fact, one of the distinctive features
of critical legal scholarship is its rejection of this vision of history. Almost every CLS article
contains a similar disclaimer, a fact which has done nothing to prevent repeated claims in
both the popular and the scholarly press that critical legal scholarship portrays law as pure
class power.
In conclusion, Gordon puts forward an alternative set of historiographical ideas to the
functionalist ones he has criticized. The central point is that law should be seen as one of the
cluster of images which together constitute social reality. Following this lead, CLS historians
have used history in a number of ways, most importantly to demonstrate the contingency
of social arrangements which now seem both natural and neutral.
These methodological precepts cover a wide spectrum of possible histories. The two papers
that follow Gordon's represent the opposite ends of that spectrum. Duncan Kennedy's essay,
'Towards an Historical Understanding of Legal Consciousness', offers a new vision of
American le~al consciousness at the turn of the nineteenth century. Prior scholars had seen
a group of blatantly class-prejudiced judges striking down 'progressive social legislation'
because it outraged their elite sensibilities. Kennedy, in contrast, sees a complete legal ideology
which explained everything from the relationship between common law rules and the
constitution, to the permitted range of convincing legal analogy. 43 It was the ostensible
autonomy of this structure "from political prejudice and personal feeling which gave it such
power, such an ability to convipce.
In a strange way, it would be more comfortable to imagine that these awful cases from
the turn of the century were simply the product of biased judges, than to imagine that they
were products of a highly formalized legal consciousness. That consciousness was ultimately
to prove too brittle to deal with either the economic challenges posed by the New Deal or
the conceptual challenges posed by legal realists. Yet, even in decay, it exercises a powerful
sway over the imagination of the American legal profession and often defines the terms of
public debate. A society which poses as one of its fundamental questions 'regulation or
deregulation' has not absorbed the legal realists' message that there is no natural legal language
of the marketplace. If the rules of private law are also 'regulations', then the debate becomes
Critical
Studies
XXV
whether to regulate, but how to regulate; not whether to have a free market, but which
of market to have.
,.,-~'""".u"''"'J 's essay has been influential, being frequently cited as a mod~l fo~ s~bsequent
in legal history. 44 Subsequent studies extended and deepen~ the mqmry. mto legal
,_,_.,. "''"V"
in general and classical legal thought in particular. The titles and subject matter
uf the succeeding articles suggest one of the reasons for the influence of ~~S, even ~n ~e
:tcholarship of those who would disagree with its political ideas.45 In part, It 1s the. spec1fic1ty
and precision of the work which commands respect. For example, rather than ma~g gen~ral
claims about the relationship of law to capitalism, Nockelby'~ ':ork ~ses the t~rt of mterfe~g
with contractual relations to analyse the historical contradictiOns mvolved m trans~o~ng
a moralistic, status-oriented vision of contract into the amoral vision of ~r~et .cap1tal1s~.
May's work on antitrust history, Singer's ~al~sis of d~mnum absque zmuna, Peller. s
intellectual history of the changing 'metaphys1cs of Amencan law - each of the~e fi~ls m
part of a picture. 46 The overall result is nothing less than a map of the in!erlocking ideologies of legal, economic and political thought as they were develo~ed m ~e mundane
complexity of particular contexts and doctrinal areas. This concentratiOn on 1deology and
consciousness, raPier than class power and instrumental effect, i~ thoug~t by some to be an
implicit criticism of Marxist histories,47 ~d by others to be ~n mter.estln~ develop~ent ~f
the earlier, 11,1ore Hegelian side of Marx's 1deas. 48 Whatever 1ts relat1onsh1~ to Mar~1sm, .1t
has produced some of the most intellectually challenging pieces of legal h1story wntten m
recent years.
. .
,
Where Kennedy's historical materials are appellate court cases and h1s alffi a rna~ of legal
consciousness' Elizabeth Mensch's work on colonial conceptions of property nghts uses
newspaper revo'ftl;, lawyers' private papers and Crown documents to investigate the conceptions
of property which animated and expressed colonial struggles over the use and control of land
and the role of wage labour. Mensch argues that the contemporary lib~r~ noti~n of pr~pe~y
rights was, in fact, the result of a profound social and intellectual confl1ct m which eg~tanan
ideas about social products and authoritarian ideas about-Crown control were used m both
legal and political arenas by contending sides. The result of that and other struggles wa~ the
uneasy amalgam of the liberal idea of property rights, an idea which now seems entirely
natural and inevitable.
Despite the difference in their materials, Kennedy and Mens:~ have some co~on themes.
Both make a point of stressing the historical contingency of familiar legal and soc1al structures.
It may seem 'natural' or 'obvious' to us that it is an inherent attribute of property to be able
to do X, yet as Mensch shows, our conception of property is hardly the ~nly one. I! may
seem obvious that one's position as to the standard of liability in a tort smt has nothmg to
do with the consideration requirement in contract law, but there was ~ time when those ~o
ideas were both seen as necessary deductions from a central set of prem1ses. As Gordon pomts
out, the demonstration of historical contingency in ideas and institutions that we take for grant~
can be profoundly liberating. For one thing, it indicates that we arrived at our present soc1al
arrangements not because of some inexorable process of historical de~~lopm~nt, but because
of a series of alarums and excursions battles won and lost, opportunities m1ssed and taken.
What was true of the past might be ~e of the present. For another th~ng, as I ~ill argue
later, the lack of 'inevitability' thus revealed could be the key to the kind of soc1al theory
which we urgently need in the world of the 1990s.
xxvi

xxvii
ID Substantive Law Examples

One of the most striking features of critical legal theory is that almost all of it is applied
theory. Where positivist or natural law theories offer contextless discussions of law considered
in the abstract, CLS essays focus on specific doctrinal areas. This substantive focus also
distinguishes CLS from much Marxist scholarship about law. Rather than offering a general
(and sometimes uninformed) external criticism of the legal system, critical legal scholars have
produced a painstaking (and sometimes pedantic) body of work which moves from specific
details of the substantive law to general theoretical speculation. The most influential ideas
in critical legal theory appear in discussions of such issues as the structure of contract doctrine,
the legal regime of plant closures, the pitfalls of anti-discrimination law or the deradicalization
of American labour law.
One consequence of this doctrinal focus has been to make critical legal scholarship harder
for academics to ignore. If you are a labour lawyer, it is easy to dismiss natural law or
positivism as 'too general', and to dismiss Marxist ideas as 'not really law'. It is much harder
to ignore a 50-page article which claims that specific features of American labour law have
made it harder to democratize the workplace, and which then offers three or four possible
strategies for change. Indeed, this may be one of the explanations for the success of CLS,
both as a set of ideas and as an attempt to build a humane and progressive intelligentsia inside
the labyrinthine bureaucracies of American law.
There is something of a paradox involved in trying to generalize about a body of work
which has as its most marked feature a commitment to local and particular analysis.
Nevertheless, there are two recurring themes in CLS work on substantive law. First, critical
legal theorists pay a great deal of attention to legal argument, in the belief that the patterns
of legal discourse reveal a lot about the ideology of the society which has produced them.
At the same time, by showing the manipulable, aporetic and open quality of legal argument,
economic analysis and other languages of decision-making, critical legal scholars have tried
to show that the social world is in fact 'under-determined'. Second, legal doctrine is taken
very seriously but not necessarily viewed as a set of rules which decides cases unambiguously
and without conscious choice. Instead, areas of legal doctrine are mined for their normative
visions - the contradictory images of the good life on which they rely for their
persuasiveness. These utopian visions can then be expanded or transferred, their implications
worked out and applied to some other area of social life. 49 This practice of 'expanded
doctrine' simultaneously challenges the inevitability of the existing order and offers concrete
proposals for change. The contributions selected for Part m exemplify both themes.
~ark Kelman's essay, 'Interpretive Construction in the Substantive Criminal Law', examines
the importance tp criminal law of the stage that comes before legal analysis - the nonrational 'interpretive construction' of the facts into a substantive legal controversy. He argues,
'in essence, that legal argument has two phases, interpretive construction and rational
rhetoricism, and that the former, a vital step which undercuts the authority of the latter, goes
5
virtually unexamined' . For example, the outcome of legal analysis will often depend on
an unconscious 'decision' to set the defendant's act in a broad or a narrow time-frame. A
husband beats, threatens and abuses his wife for a ten-year period. The violence escalates
to the point where she fears for her life. Finally, she stabs him while he is sleeping. If the
act is taken in a narrow time-frame, it seems like murder. If a broad time-frame is used,
her actions may be seen as self-defence. We possess no meta-theory whi~~ te~s us _when
10 resort to a broad as opposed to a narrow time-frame; in that sense, the dectston ts arational.
Kelman argues that this arational interpretive construction of the. e~ent often conceals_ ~ne
of the more explicit political and moral decisions faced by the cnmmal law - the dectston
whether or not to take an intentionalist or determinist view of the defendant.
Often, conduct is deemed involuntary (or determined) rather than freely ~ill~ (or in~~tional) because
we do not consider the defendant's earlier decisiqns that may have put hliD m the_posttion of appare~t
choiceless-ness. Conversely, conduct that could have been viewed. as freely Wt~led or voluntary tf
we looked only at the precise moment of the criminal incident is sometlffies deemed ~voluntary beca~
we open up the time-frame to look at prior events that see~ to com~l or det~rmtne,the defendants
conduct at the time of the incident. The use of time-framwg as ~ mterprettve method blocks the
perception that intentionalist or determinist issues could~ substanttve~y at stake .. If one h~ someh?w
convinced oneself that the narrow time-framed focus ts the appropnate t~chmque for _mterpre~g
criminal law material, there is simply no background data ~ne _can use, ~tther to pr~vtde the gn~}
for a determinist account or to locate a prior sphere of chmce m a seemmgly constncted world.
Thus, Kelman's work provides a useful map oflegal argument, but has broade~ concerns
than mere doctrinal or rhetorical skill. Just as in Bob Gordon's account of lega~ ~story ~d
Peter Gabel's work on legal reasoning, the focus is on the way that moral and political chotces
are concealed by apparently 'technical' concerns. On the level of ideology, Kelman's e~say
offers an answer to a basic question: 'How can a liberal capitalist state, deeply conup1~ed
to the intenti~nalist vision of human action, maintain a criminal law system that contams
within it pockets of determinism - ideas, which if taken seriously, wo~ld appear to c~allenge
the whole structure?' Kelman is at his best describing in great detail the ~~chamsms for
'walling off determinist insights from the rest of the doctrine. _we are ~illmg to look at
alcoholics, the temporarily insane or sufferers from post-trauma~c stress disorder as peop~e
who do not choose to act as they do. It is clearly a matter of JUdgement how far we will
extend that vision to the defendant who comes from the slum, the ghetto. or the world of
structural unemployment. Yet we can deny that choice by 'time-fr~g', taking narrow rather
than broad views of the defendant, preferring disjointed to umfied accou~ts and so on_.
Regina Austin's essay exemplifies the seco~d th~~e in th~ CLS analysts of su?stantive
law - the mining of legal doctrine for normative VlSlons wh~ch can th~n be applied to an
area where it previously 'went without saying' that they were mappropnat~. Her foc~s here
is the tort of 'intentional infliction of emotional distress'. Many of the repnmands or msults
that employers deliver to employees would be c~nsider~ torti~us outside of the workplace.
But, as Austin explains, '[t]he conventional wtsdom ts that, m the workplace: a?u~e ~
be a legitimate instrument of worker con~ol and .an ~ppropriate form ?,f dtsctph~e
Through a largely unconscious pattern of hne-~awmg, ~ the workp~ace It go~s wttho~t
saying' that the employee gives up a large part of his or her nght to emotion:U secunty. Au_stm
challenges this conventional wisdom, discusses the way that workers' own mformal practi~es
of resistance both undermine and support employer tactics, and examines the extent to whtch
structural features of the labour market perpetuate abuse of workers. She then turns to the
possible contribution that tort law could make.
1T 1he final section of the article considers the role that tort law might play in turning the worke~
critique into the normative foundation of an oppositional movement led by :~se w~oe::~-~pp;es.:s'
not only by their race and their sex but also by their class. Movements are u t on r - 1 e s on
xxviii
tha~ teach, inspire, fortify and remind the participants of the justness of their cause. The cultural
resistance of low status minority and female workers represents a rich lode of true tales to fuel a
movement. !he tort of outra~e. would serve a useful pedagogical function if instead of compelling
acco~~ation an~ surr~nder It mcorporated the wisdom of the critique, extolled the dignity of workers
and legitimated therr cl~ms to r~pectful treatment by supervisors. A 'worker-centric' tort of outrage
w~uld not convey anythmg particularly. new to ~e workers; it would merely formulate in a formal,
pomted, coherent statement the emanctpatory themes of the lessons experience has already taught
~ei?. Tort la~ can do no less if employers are to be brought around to the view that intentionally
mflicted emotional distress is an unacceptable tool of worker control. 53
One of the most marked features of this kind of scholarship is the complexity of its vision
of)aw. Leg~l ~octrine is treated, simultaneously, as an alienating social construct which
helps to ~amtam the anaesthetic grip of 'the way things are', as a wellspring of utopian
norms whtch can help us to reimagine the social world, and as a set of symbols which
could be used in mobilizing for political change. A similar vision of law can be found
throughout many CLS articles. Joe Singer's work on plant closings is a particularly fine
r~presentative of this genre. 54 Other examples abound, each adding something a little
differe~t. Fran Olsen's cla~sic article, 'The Family and the Market', links a feminist analysis
of the tdeology of the famtly to a legal realist dissection of the public/private distinction. 55
Alan Freeman'.s magisterial work on anti-discrimination law shows how the jurisprudence
of formal equaltty produces a body of law organized around the perspective of the 'perpetrator'
rather than ~e 'vic~' - thus blinding courts to structural discrimination and reaching only
those c~ses mvol~mg an intentional discriminatory act by an identifiable actor.56 Any
exhaustive analysts would add to this list David Kennedy's work on international law
K~n Casebeer, ~arl Klare and Cathy Stone's work on labour law, Lucinda Finley's and
Rick. A~el's work ~n ~ex discrimination law, Mark Tushnet's prodigious oeuvre on
c~nstttutionallaw, BtU Stmon's work on professional responsibility and on welfare rights,
Ktmberle Crenshaw's work on anti-discrimination, Tom Heller's work in tax law, Clare
Dalton ~d Mary Joe Frog's work on contract law, David Carlson's work on business
la~,. and so on and. so on .57 The list is not endless, but it certainly could not be completed
wtthin the bou~danes of this I~troduction. There is a simple point to this cacophony of
n~es ~nd subject areas, the pomt that I made at the beginning. Despite the fact that most
~tscusstons of CLS concentrate on 'Unger and indeterminacy', the best critical legal theory
ts a~tually applie~ ~eory, rooted in specific areas of legal doctrine and political ideology.
At Its most ambttious,. as in Regina Austin's exploration, it is also rooted in microphenomenologies of social life.
At this point, it might be useful to review the two themes I described earlier. Mark Kelman
showed how i~eolo?ical vision and political choice enter the law even before the process
ofle?al anal~sts begms, at the moment that the incident is 'interpretively constructed'. Regina
~~sttn co~bmed a hegem?nic theory of law (like that described in the section on legal history)
With a behef that substantive law contains utopian ideas that can be used both within the legal
system and as part of a ~arger struggle of mobilization and democratic political action. Together
~es.e two themes provtde a key to much CLS writing on substantive law. In Part IV, ideas
Similar to Kelman's and Austin's will be combined to provide a strategy for using critical
legal theory in legal practice.
xxix
IV Legal Practice
In 'Building Power and Breaking Images', Peter Gabel and Paul Harris present a theory of
law and legal practice signficantly different from both of the other two main theories available
to progressive lawyers.
We reject both the orthodox Marxist view that law is simply a 'tool of the ruling class' and the liberallegalist view that powerless groups in society can gradually improve their position by getting more
rights. Instead, we argue that the legal system is an important public arena through which the State
attempts - through manipulation of symbols, images and ideas - to legitimize a social order that
most people find alienating and inhumane. Our objective is to show the way that the legal system
works at many different levels to shape popular consCiousness towards accepting the legitimacy of
the status quo, and to outline the ways that lawyers can effectively resist these efforts in building
a movement for fundamental social change. 58
In their introductory section, Gabel and Harris reinforce their message that the law is a
system of symbols which represents society through a series of reified constructs 'contracting parties', 'criminal conspirators' and so on. The focus on alienation, reification
and symb9l (rather than class power, force and the relations of production) has obvious
similarities to Gabel's earlier essay, 'Reification in Legal Reasoning' as well as to the historical
studies by Gordon and Mensch. The unique contribution of this work is to provide a number
of concrete examples to suggest how this vision of law could be used in legal practice. Their
examples run the gamut of both visibility and tactics - from the Chicago Eight trial and its
televized Yippie subversion of the legitimacy of the court, to a dispute with a local school
over whether or not students could distribute their own newspaper. Along the way, Gabel
and Harris show how interpretive constructs, like those described by Mark Kelman, can be
used as part of a larger strategy for legal practice.
For example, in the Inez Garcia case a woman who had been raped went after her rapists
with a gun, wounding one and killing the other. Her first defence lawyer chose to present
her as someone who was driven temporarily insane by the shock of the rape. The rape and
the shooting were viewed as two separate occurrences - in Kelman's terms, a preference
for disaggregated over unified accounts - and the action was viewed as that of a person not
acting of her own free will, choosing a determinist rather than an intentionalist construct.
The disadvantage of this defence is not simply that it lost, but that it presented Ms. Garcia
as a helpless, even crazy, victim. On appeal, her second lawyer, Susan Jordan, presented
the case as one of self-defence. Rather than being viewed as a separate and aberrational act,
the shooting was presented as part of the rape, in the same way that a fatal stray bullet fired
in self-defence by a victim during a robbery may be seen as part of the robbery and imputed
to the robber under the felony murder rule. Using psychological evidence and Ms. Garcia's
own testimony, the time-frame was expanded to include both events as a single experience
of assault' and self-defence, rather than separate experiences of trauma and resulting insanity.
In the abstract, this might seem to be merely another clever legal argument. Gabel and Harris
insist that it only acquires meaning when we note that it manage~ to validate Ms. Garcia's
own feelings about the event by expressing them in the language of the legal form and, at
the same time, to link this case to a larger feminist project of challenging the male bias of
rape "laws. The insistence that both scholarship and law should be made to accommodate this
xu
Critical
'double movement' of personal experience and political action is typical of critical legal
theory. 59
Studies
xui
This leads me to the second point. There is an apocryphal story about Michelangelo.
Confronted by a rather stupid nobleman who asked how he could create such perfect statues
. from featureless blocks of marble, Michelangelo responded, 'Actually, it's very easy. The
statues are already inside the marble. All I do is let them out.' In Gabel's work one sometimes
gets the sense that under the repressive roles and false meaning-systems of contemporary
life lies a, pure, unalienated self, needing only the touch of the sculptor's hand to set it free.
I am less sure. To me it seems that there is no pure, non-role-playing self under the layers
of social roles; no completely unreified concept under the layers of reified legal terms. Could
it be that we do not have the choice whether or not to have social roles, whether or not to
reify our legal terms, but instead can choose which social roles to adopt, which legal terms
to reify and when to do so? This is a theme which will be taken up again in Part V, as we
turn to CLS and social theory.
The second thread of Gabel and Harris' essay is that these legal strategies are only relevant
in a larger and more broadly-based social movement. If there is one thing that critical legal
scholars are agreed about it is that social change is not a matter of clever legal arguments
deployed by elite lawyers, but rather a process of democratic organization and mobilization
in which law will play a necessary part. On the other hand, the CLS vision is not that radical
lawyers should stand by like hired guns, ready to use their skills for the benefit of the powerless
rather than the powerful in whatever 'real' political struggle is being fought at that
60
moment. The former vision of legal practice (exemplified by liberal constitutional
litigation) makes law the central arena of political change and lawyers the principal actors.
The latter, exemplified by the 'old left', marginalizes both law and lawyers to the
superstructural fringe, occasionally of some use to the party of humanity, but basically
irrelevant to 'real' political change. Neither allows for the genuine complexity of law and
legal practice, a complexity which ranges from symbolic to practical effects, from the ground
rules which define the distribution of wealth and bargaining power in a society to the legal
terms like 'right' and 'property' through which we filter social reality. It is a complex picture
and the theory which deals with it must be equally complex. As Regina Austin showed in
the section on substantive law, it may be necessary to combine an exhaustive analysis of legal
doctrine with a theoretical understanding of the hegemonic power of the law and a series
of micro-phenomenological accounts of its application.
If one were to sum up Gabel and Harris' argument in a sentence, it would be that, in both
coalition building and courtroom strategy, the place to start is with an increased awareness
of the social meaning of the law and of the fundamental issues presented by even the simplest
case. The suggestions they make - whether about landlord-tenant relations, family law,
criminal defence or entertainment law - all rest on the belief that every dispute is founded
ultimately upon conflicts and contradictions within the system as a whole'.
What is one to make of all this? For me, the stress on the way that legal images help to
constitute social reality is useful, and the extensive use of examples commendable. Ifi disagree
with Gabel and Harris, it is on only two points. The first may be simply a matter of style.
Throughout the essay, law appears almost entirely in a negative light. 6I Yet most of the
tactics which Gabel and Harris suggest are only feasible because legal doctrine contains both
utopian and repressive images, both the fruit of popular struggles as well as the common
sense of the ruling class, ideas of self-reliant individualism and community-oriented altruism.
Contract law presents both the isolated and commendably paranoid monads who figure in
nineteenth-century consideration doctrine, and the trusting, communally responsible subjects
of reliance doctrine. Tort law will sometimes tell victims that they should be hardy and selfreliant and that their injurers can escape liability if they have taken a minimum amount of
care. At other times, however, the law makes an injurer strictly liable, reassuring the victim
that 'between two innocents, the person who causes the harm should pay'. It is this welter
of contradictory moral images which allows the operation of exactly the techniques that Gabel
~nd Harris advocate. Consequently, perhaps they should give more emphasis to the utopian
Images they were able to use, rather than presenting the legal system as merely a set of false
symbols and rituals through which some anthropomorphized state 'attempts ... to legitimize
a social system which most people find alienating and inhumane'.
V From Legal Theory to Social Theory

One of the interesting aspects of critical legal theory is that it has moved beyond the lawyer's
traditional concern with the exegesis of legal doctrine, or even the attempt to wring from
the definition of law an explanation of the obligation to obey legal rules. In large part, this
move reflects a belief that legal theory and social theory are inextricably connected. Each
part of this book evidences that belief.
The CLS analysis of legal reasoning was partly fuelled by the idea that the objectivity
and neutrality of legal reasoning were not merely a lawyer's desideratum; they were
also a prerequisite for the legitimacy of the liberal state. Peter Gabel's 'Reification
in Legal Reasoning' argues that legal reification is not just a 'mistake' but part of a
larger practice of social objectification best analysed by social theorists such as Marx
and Sartre.
Much of critical legal history consists of an attempt to show that there is no inexorable
course of progression along which societies move and thus that the functionalist histories
which explain law as an adjunct to social development are both mistaken and apologetic.
The CLS analysis of substantive law has largely consisted of an effort to tie principles
and leg~l arguments to larger political and social theories, to show that a particular
case presented not only a thorny question of doctrinal interpretation, say,. but a
fundamental clash between individualism and altruism, or social welfare economics
and libertarian property rights. The effort was not merely an analytic one. The next
stage was to challenge the apparent naturalness and inevitability of the status quo by
taking one of the mini social theories revealed by the doctrine and extending it to some
logically indistinguishable situation where it had been thought inapplicable.
The section on legal practice showed a similar concern with social theory. Gabel and
Harris obviously believe that it is difficult if not impossible to formulate a theory of
practice without a theory of society. In their case, it was a theory of the production
of alienated social meaning through the system of legal rules and legal authority.
The extent of this concern with social theory is obvious. It ranges from the intellectual
0
.xxxii
.xxxiii
historian's exegesis of the principles of some political theory found in a line of cases, to
the sociologist's analysis oflegal hegemony and the semiotician's study of the system oflegal
meaning. Given this kind of fascination, it might seem to be an easy job to show how critical
legal thought has developed into social theory. Nothing could be further from the truth.
There are two reasons why the task is so difficult. First, the heterodox make-up of CLS
precludes the production of a simple account. Second, social theory is often thought of as
being rather like a gigantic Heath-Robinson or Rube Goldberg machine - the theory of
psychology connecting to the theory of human nature, the theory of human nature connecting
to the theory of civil society, the theory of civil society connecting to the theory of the state,
the theory of the state connecting to the theory of political transformation, while the theory
of epistemology anchors the whole thing to the ground. Indeed, the highest aspiration of
rationalist social theory was to deduce moral philosophy and social structure from a few
powerful postulates about human psychology. But it is exactly against this view of social
theory that most CLS work is directed. Thus to explain CLS and social theory is to explain
a set of heterodox views which share only one thing - a rejection of the standard categories
o~ soci~l theory. Admittedly, the organization of Part V is traditional enough. It begins with
dtscusstons of human nature, moves to a theory of civil society and of the state, offers a
theory of political transformation, extends the theory to the metaphysics of American legal
thought and ends by reviewing the main currents in critical legal theory and connecting them
to larger movements in epistemology and intellectual history. Given the contents of the section,
however, its traditionality of form is probably best described as ironic.
The first piece is my review of Roberto Unger's 'Passion: An Essay on Personality'. Most
politi~ theorists use the idea of human nature to give determinacy and closure to their political
theones. Unger does exactly the opposite. His thesis is that,the only universal feature of human
nature-is the absence of any universal features of human nature; the only unchanging aspect
of human personality is its ability constantly to transcend any context in which it is, for the
moment, embedded. This modernist idea of context transcendence is the key to Professor
Unger's more general work on social theory.
For Unger, the paradigm of political action is the triumph of the modernist revolt against
classic~l forms in the arts. Like the modernists, we should strive constimtl)t, to revise and
transcend the structures in which we are, for the moment, embedded. Thus, the ideal society
is the one where individuals find their lives least detennined by belonging to a particular
race or sex or class; the ideal state is the one whose institutions make it most open to 'expanded
self-revision'.
For reasons explained in the review, I feel that Unger's project is commendably' ambitious,
but th~t the grand style of his theorizing is in tension with the subversive and localized critiques
typical of modernism- the very doctrine he propounds. Compare Unger's ideas to those
put forward in Chapter 11, an excerpt from Duncan Kennedy's privately published broadside,
'Legal Education and the Reproduction of Hierarchy'. If any single piece of writing can offer
a taste of the strange brew critical legal theory has made out of legal realism, the New Left,
feminism and Michel Foucault, it is this chapter. Kennedy starts by explaining his concentration
on 'hierarchy' rather tQan the more typical categories of oppression based on race or class
or gepder.
By looking at ~1 mental structures as 'contexts', we collapse the boundaries separating the theoretical
from t~e practical, ~he person:U from _the political. It does not matter whether we are talking about
the social constructiOn of reality, the Ideas of Freudian psychiatry, the unspoken hierarchies of the
workpl~ce, ~e implicit structure of a love affair, or the l!beral theory of the state. These are all
arena~ m which "!'e face, wha~ Professor Un?er calls 'the problem of contextuality : the ambivalent
expenence of bemg (necessarily) embedded m a context that defines the possible and the impossible,
or sep~rates s~nse from nonsense,. an~, at the s~me time, of transcending that context - having
momentary glimpses of ways of thmkmg and bemg that cannot even be translated into, let alone
adequately expressed by, the current vocabulary of social power and self-understanding.62
. The insist~nce that it is necessary to collapse the boundaries between areas of thought and
hfe that soctal theory has traditionally seen as separate is typical not only of Unger, but of
most CLS theoretical work. Where Unger differs from other CLS writers is in the breadth
of hi~ theoretical ambition. Like Feuerbach and de Chardin, Unger's work is founded on
a belief in the infinite potential of the human spirit. Unlike them, he seeks to derive from
this belief an entire social theory, complete with institutional plans, discussions of the best
form of research organization and details of rotating capital funds. 63
What I like about the word hierarchy is its vagueness, which makes it useless for the purposes of
'real', hard-edged theory. To use it is to deny that class, or gender, or, say, the relatio~ ofimperi~ist
countries to Third World peoples, is the fundamental category ... Vagueness has a pnce. The notiOn
of hierarchy encompasses lots of relationships that don't seem to me perverse, and ot~ers that seem
ambiguous. The notion itself doesn't itself tell us which .,hierarchies. are okay and which are a~ful.
For example, I think parents should have some authonty ov7r children~ that students son:'etlmes
legitimately revere teachers, and that children should so_metiiDes ~oerc1vely care for their aged
parents ... Hierarchy isn't even an inclusive term to descnbe the evils of our system. There would
be lots wrong (for example, our relation to the environment) even if we cleaned up our unequal
structures. And there are other evils (sexual jealousy) that may be ineradicable. What makes one
a radical, in this view, is not that one is against hierarchy, since we all sometimes ac,:cept it, nor
that one is against 'illegitimate' hierarchy, since we're all against that. Nor is the radical 'the person
with the theory that 'goes to the root'. None of us has such a theory. The radical_is the person who
wants to go further, right now, practically, to dismantle existing structures of hierarchy that look
eyil, and wants to go further, right now, practically, in confronting or subverting the forces that
keep them in place. 64
For some reason, this passage makes me thirik of Andre Malraux's description of the hero
of one of his novels. 'He had ceased to believe in Marxism and now believed only in energy.'
Is Kennedy deserting the intellectual world of traditional social theory and embracing instead
a philosophy of intuitive action? I think the answer is both yes and no. Kennedy's interest
is certainly in doing things rather than merely talking about them, and he 'clearly believes
that theory is more expressive than prescriptive. This does not mean, however, that his work
is atheoretical. It merely rejects a particular model of social theory, the 'grand style' which
Unger had attempted to hold on to, albeit with a modernist tinge. Like Michel Foucault,
Kennedy thinks that our period 'has been marked by the efficacy of dispersed and discontinuous
offensives' and the 'inhibiting effect of global, totalitarian theories' .65 But, also like
Foucault, he thinks that the global theories such as Marxism or Freudianism can -continue
to provide useful tools, provided only 'that the theoretical unity of these discourses was
in some. cases put in abeyance, or at least curtailed, divided, overthrown, caricatured,
theatricalised, or what you will' .66
xxxiv
Even if.we ~ccept the !dea ~at, as a matter of form, theory can consist of a set of snippets
of theor~tiCalideas, tactical hmts and so forth, it still leaves us with the question of content.
What smppe~s of the_ory ~oes Kennedy have to offer? The answer is a rather interesting one.
~fact, despite. the discl~ers at the beginning and the Foucauldian tone of Kennedy's ideas,
~Is work contains a relatively coherent and consistent theory of political action which, despite
Its un~rthodox .content,. covers all the traditional concerns of the genre.
_D~Ike Marxist~ an~ hberals, Kennedy gives no primacy to the working class or the state.
His picture of society Is of a set of inter-linked cells, each 'supporting' the others by analogy.
I can keep an unwelcome commercial salesman out of my house, so why can't a shopping
mall P.r~vent prot~st:rs from distributing leaflets? We accept hierarchical work-definition in
~e ~Itary and m mdustrial organizations, so why not in schools and families?67 These
mter-linked cells c~ot be typed acco~din~ to the traditional categories of state theory. '[T] he
"ddl
state has blurred mto the rest of society JUSt as the proletariat has blurred into th
1
M
d"
e nu e
c ass. any Istmct mterests: not remotely reducible to "capital", have appropriated hunks
of s.tate power and pursue thetr goals through "public" institutions at the local, metropolitan,
regiOnal, s~te and fede~allevels: : [T]he cells that are conventionally categorized as the
state could JUSt as plausibly be divtded up and recombined in a dozen other ways. It is not
even true that w~ c~? s~y that the ~tate's ou~ut is "suppression of change" or "adjusting
th~ system to ~nses , smce sometimes the different cells arbitrarily labelled "public" do
this and sometimes they do the opposite, fostering change and destabilizing other parts of
68
the system. ' The state is not even the central focus of efforts to change the system.
the relationship of law and the market. The most striking thing about such a comparison is
bow similar the Marxist and classical liberal theories are, and how different from the legal
realist. In both the Marxist and the classical liberal versions, the market has a 'natural' or
essential form. Once a society 'picks' the free market (in the classical liberal vision) or is
inexorably brought to it by historical forces (in the Marxist vision), there is little choice or
free play left in the system. The classical liberal believes that the rules of private law are
logically deduced from the simple choice of this type of economic organization. The Marxist
believes that the objective interests of the econpmically dominant class will 'automatically'
be inscribed as law - which comes to largely the same thing, at least as regards the fateful
inevitability of the process and the impression that 'the system is merely following out its
own logic'.
As I pointed out in the sections on legal reasoning and legal history, the realist vision is
very different. First, realists see the market as the result, rather than the cause, of the
constitutive rules of law. The rules of private law define what property is; the rules of tort
define what injuries a manufacturer can inflict without formal responsibility; 71 the rules of
contracts and stock transfers shape the kinds of transactions which develop; the rules oflabour
law determine the relative bargaining powers of workers and capitalists. 72 Since it was not
possible even to define the economic base without using superstructural, legal terms such
as 'property', 'contract' and so on, how could the base be defining the superstructure?73
Realists could undercut any claim that some particular set of legal arrangements could be
logically deduced from the mere idea of decentralized, economic exchange. How could the
classical liberal claim that this particular market, with its particular structural distribution
of wealth and power, was logically necessary? 74 Some realists even challenged the
ideologically loaded language in which the whole discussion was conducted, arguing that
economic freedom was merely the residuum left to individuals by the legal rules of a particular
society.
If a band of revolutionaries, or a band of moderate liberal reformers, were to seize some important
hunk of the state, or eve~ every cell arguably a part thereof, they would be incapable, for all their
?PParent power, of changmg most of what is detestable about our system. The hateful stuff is embedded
m the hu~dreds of t!tousands of little behavior patterns and implicit training programs that constitute
the total1ty . The hberal state is too weak and the totalitarian state too strong for the task of
transformation. Where what we long for is free self-determination within every cell the liberal state
can only re~ulate the power:tUl while the totalitarian state can only tell us what to do and not to do.
The revolutiOn that counts IS ? revolution of civil society, a revolution within each cell, from the
shop floor to the nuclear family to the office to the classroom. 69
For "!': the most interesting thing about this account is its strange mixture of intellectual
and political m?~ements. Much of the ~qtalysis comes straight from the politics of the new
a degree unrivalled in American history, those two groups
left and the fe~mst movem~nt.
focused attention on oppre~sion m the world of civil society as well as the world of the state.
They argued that power did not confine itself to the public sphere or to the marketplace
but suffused every arena of human interaction. The left has often been blind to this fact:
Th~s, for ex~ple, th: earl~ civil rights movement took a courageous stand against the formal
racial apa~etd practised m the South, but was blind to the practical gender apartheid of
sex roles w~ch confined ?ne:half of the .population to a subordinate position in the marketplace
an~ the famtly Kennedy s smgle most Important inspiration was to link the intellectual tools
~hichllelp to sh?~ that 'the personal is political' with a completely (almost jarringly) different
mtellectu~l traditio~ - the legal realist analysis of the state and the market. 10
To .see J.us.t how different Kennedy's realist-inspired analysis is from more traditional social
theones, It IS useful to compare the realist, the classical liberal and the Marxist visions of
!o
..
As a result of the governmental and private coercion under what is mistakenly called laissez faire,
the economic liberty of some is curtailed to the advantage of others, .while the economic. liberty of
all is curtailed to some degree ... Liberty to consume would be restncted far more drastic~ly than
it is were there no restrictions on that other aspect of economic liberty, freedom to abstam from
producing. In our industrial society, an employee works in order to make ~ b~gain ~ith his employ:r
and thus obtain the money with which to free himself from some of the restrictions which other peop!e s
property rights place on his freedom to consume .... Those who own enough property have suffici~nt
liberty to consume, without yielding any of their liberty to be idle. . .. The law endows them WI~
the power to call on governmental authorities to keep others from using what they ?wn. : . n. 1s
with these unequal rights that men bargain and exert pessure on one another. These nghts g1ve nse
to the fruits of unequal bargaining. There may be sound reasons of economic policy to justify. all
the economic inequalities that flow from unequal rights. If so, these reasons must be more specific
than a broad policy of private property and freedom to contract. With different rules as to the assi~ent
of property rights, particularly by way of inheritance or government grant, we c?uld have JUSt .as
strict a protection of each person's property rights, and just as little.gove~ental mterference WI~
freedom of contract, but a very different pattern of economic relatiOnships ... : [In fact,] .~er~ IS
no a priori reason for regarding planned governmental intervention in the econom1c sphere as tnlffilcal
to economic liberty, or even to that special form of it known as free enterprise. We shall ~ave
government intervention anyway, even if unplanned, in the form of the enforcement of property .ngh~
assigned to different individuals according to legal rules laid down by the. government. It IS th1s
unplanned economic intervention which restricts economic liberty so drastically and unequally at
present. 75
xxxvi
What Kennedy does is both to use the realist vision in his analysis of economic relations76
and to gener~lize fro~ ~t to an ~ntire theory of society. Just as the realists encouraged lawyers
to locate their analysis I~ a particular s.ituation, a particular place and time, Kennedy believes
that movements for social transformatiOn need to begin 'within each cell, from the shop floor
to the n~clear family to the office to the classroom'. Thus, the kind of theory that is useful
to ~ ?articular movement is more likely to be a complex evocation of situation sense in the
?ohtics of the shop floor or the hierarchy of law schools than a general theory of the objective
mt~rests of the working class. This realist tinge goes beyond tactics. Just as there is no inherent
logic of the free market which dictates that we should give workers this much bargaining
power and no more, there is no inherent logic of society that dictates that certain kinds of
transformation can or cannot happen.
[I] f we have to abandon the notion of the state as a transformative agent, we can also let go the
fear tha~ th~ sta~ c~ s?mehow repress any attempt at fundamental change. There is no process of
secular r?ttonahzattOJ:! that slowly implants order so deeply that freedom becomes unimaginable
The ocx:ast_?ns of freedom.run lil~e veins of ore through what seem to be the most monolithic institutions;
they extst m pock~ts and mters~tces that escape even a very careful eye. And all occasions of freedom
are ~ndamental; JUSt as there ts no core or basic relation or logic of the system so there is no single
fragtle heart of the opposition. 77
'
Is there any way to link Kennedy's vision, with its blend of legal realism and the new left
to the Sartrean critique of reified concepts and alienated social roles suggested by Pete;
78
G~bel? If there is one, it may lie in the next wave of critical legal thought. In the
~d-1980s, the second generation of critical legal scholarship turned to the connection between
mtel~ectual me~od ~~ political practice. The final two essays in Part V may give some sense
of tltis new ~m m cnticallegal theoryc, a tum which offers a different vision of the relationship
between epistemology and praxis.
The p~nultimate piece consists of two e,xcerpts taken.from Gary Peller's 'The Metaphysics
of Amencan Law'. In ~art I, I described how it was possible to us~ the techniques of literary
~eory ~d deconstructiOn to demonstrate that the iqterpretation of legal texts is necessarily
m~etermtna.te. }n the ~rrst excerpt from his essay, Peller goes further, 'to analyze legal thought
as Itself an mterpre~tion of the "text". of sociru relations'. 79 Peller's argument bears quoting
at length, both for Its own sake and m order to show the connections to Gabel's ideas as
expressed in 'Reification in Legal Reasoning' and 'Building Power and Breaking Images'.
[ L] egal thought is a. representational discourse which purports to re-present social relations in a
neutral .manner. Bu~ like lan?u?ge generally, legal discourse can never escape its own contextuality.
Le~al dts~urse pro;e.cts medtating constructs onto the social events it considers ... Just as one approach
to l.tt~rary mterpretatton pull:'orts to proceed on the basis of an authorial intent to ground interpretative
actiVIty, one mode of legal dtscourse imagines that individuals in society are authors of social relations
~nd con~equently ~reats contractual int~nt ~s a ground for legal practice. Just as one approach to
literary mterpretat10n looks to commurucatlve context to determine the meaning of a text another
legal approach treats s.oci~ context as the primary source of legal results. As with the ~alysis of
language ~d commumcation, the argument here is that legal discourse can present itself as neutral
and determmate o~.Y to the extent that it denies its own metaphoric starting points and instead pretends
to reflect the postttve content of social relations. so
But as Peller's essay shows, this process extends beyond the legal system to the construction
Critical
Studies
xxxvii
social reality as a whole. The larger sweep of his discussion was an attempt to show that
move from the era of 'liberty of contract' to the era of legal realism could be understood
a shift in representative practice from a belief in a transcendental subject to a belief .in
a transcendental object. This might seem about as unconnected to the everyday :world of social
reality as one could possibly get, but a moment's thought indica~es otherwise.
.
First, conservative political discourse ~ontinues to portr~y society as an a~gregation. ~f
subjects, each of whom is the author of his or her own destmy and the~efor~ deserves It .
Both Donald Trump and the bag lady who lives in a cardboard box outside his tower s?ould
be seen as subjects who determined their own fate, rather than victims or bene~ciaries of
current social arrangements. Thus they are 'entitled' to whatever they have received un~er
the current rules of the game. Any adjustment in their positions would either be 'chanty'
or 'theft' both words indicating departures from a norm which need not, itself, be justified.
In Pellerl's terms, power (the grotesque differences in their ability to control their own lives)
is represented in nonpower ('it's just the way things are'). It is the social structure of wealth
accumulation which allows such disparities. It is the legal rules of contract, property, trespas$
and so on which allow Trump and deny the bag lady the help of the state. Nevertheless,
the participation of general social rules in constructing the differences bet:wee~ them is ignored.
We convince ourselves that this is a matter of private, de facto wealth dispanty, not the result
of public, de jure social structure. Ironically, because of her pi~nce from. we~fare, it is .the
bag lady and not Trump who is seen as the ~nworthy beneficiary of socie~ s ge?eros~~
yet to switch the process and represent the difference between them as entirely a public ,
'general' and 'socially constructed' one (as does the language of the social welfare state)
is merefy to impose another set of metaphoric categories, not to escape from metaphor to
'fact'. No political theory gives pure and unmediated access to social reality. We must recreate
reality every minute and take responsibility for doing so.
Second, like Gabel's, Peller's argument goes beyond the formal public discourse of politics
to the unconscious ways in which we structure every social situation. 'The same process of
reification characterizes social life itself in the moments of pacifiction and alienation when
the group sense is lost that things could be otherwise, here. and n~w; that the~e is no
transcendental basis to the existing hierarchies and forms of soctal relations. Legal discourse
is only one area in which the metaphors of alienation are institutionalized. ' 81 Once again,
there is an Ungerian insistence that the large denominations of social life must be changed
into the small coin of personal encounter and experience.
So far, with the exception of a few links to legal realism or Foucault's philosophy, critical
legal theory has been presented in a vacuum. How is it connected to the larger movem~nts
in philosophy and intellectual history? In the essay included here as Chapter 1~, I review
some of the most important developments in critical legal theory and suggests that, m common
with deconstructive literary philosophy,. post-Wittgensteinian linguistics and the contemporary
philosophy of science, they share a concern with the 'politic~ of reason', th~ connection between
epistemology and social power. This epistemological concern can appear ~ the most m~n~e
of contexts. As I pointed out earlier, much of the CLS oeuvre ha~ the basic me~sage, ~mgs
could be otherwise'. Many CLS articles examine a field- be It the economtc analysis ~f
the law, a particular area of legal doctrine, or a set of daims about the developmental logic
of history - and argue that it is possessed of a false determinacy. .
.
..
The difficulty with such an analysis is the same one faced by all social theones: the cntique
xxxviii
Critical
tends to undermine itself. CLS articles generally have two, apparently incompatible, parts.
The d~scriptive part confidently outlines the central ideology ofliberalism, the basic structure
of law and economics, the main fallacy in some area of legal doctrine, the structure of
Blackstone's Commentaries. The second part then uses a variety of critical weapons ranging from Wittgensteinian linguistic philosophy and deconstruction to legal realism and
simple logical analysis - to show that the identified structure is contradictory, confused, selfswallowing or generally indeterminate. The difficulty is that these same weapons would appear
to undermine the first stage, the identification of the structure which is to be criticized.
This tension could be portrayed in an infinite number of ways. I argue that within CLS
it could usefully be described as a tension between a structuralist strand and a subjectivist
strand. 82 The structuralist strand seeks to identify clusters of belief, ideas or economic forces
that organize, shape or explain the subjective experiences ofthose affected by them. Peller's
account of the structure of social representation or Kennedy's description of the structure
of legal consciousness are obvious examples. The subjectivist strand, on the other hand, exalts
individual experience. Its subjects resemble the Sartrean hero. In a world of bad faith and
false necessity, personal choice remains the only lodestone. Thus, Peller ends his essay
speaking out against the 'treachery' involved in accepting the official structure of reality.
_Yet the very tools which demonstrate the subject's freedom seem to undermine the credibility
of the particular structure identified by the theorist. The very constraint and determinacy
- which the structure produces seem to undermine the possibility of the freely acting subject.
The tension is pervasive. Everything, from our theory of language (intentionality versus
reified semantic codes) to a theory of political change (Faustian activism versus bleak
determinism) to a theory of legal doctrine (manipulable mush versus the false closure of legal
consciousness) will be affected by it. Although there are a number of devices to defer or
minimize the tension- immanent critique, Verfremdung, Ideologiekritik, Unger's dialectic
of context reliance and transcendence - there is none which can resolve it. My argument,
expounded at unseemly length in the essay, is that rather than seeking to avoid or resolve
the tension, we should harness it and use it to fuel a practice of 'local theory'. By 'local
theory' I do not mean an impoverished particularism, only capable of describing the world
of immediate experience. Duncan Kennedy puts it very well.
It might s~m to follow from this ch~stened view of the role of theory that we can talk only about
the small shce of !he ~orld about whtch we can be truly knowledgeable. As we generalize, we float
~ree of our expenenttal ground, and our theorizing loses its only possible validation. Yet we live
m the great world as well as in the little. We belong to groups that extend beyond particular places
and we speak a langu~g~ - the con~ptual, sci7ntific,. social theoretical, aesthetic-modernist language
of the world bourgeolSle - that as~rres to umversaltty. If it is to perform its expressive function,
?ur theory must help us to grasp thts transcendent aspect of our experience, as well as our .dispersal
m comers and cul de sacs. It's not a question of grasping an essence of our total situation from which
we could reason to particular proposals. It's more the projection onto the widest screen of the ideas
and images that develop in the course of small-scale, backwater actions that we long to join into
the great stream.s3
To this description, I would add only one thing. One of the great insights of modernist
literature is that our consciousness does not proceed in Cartesian chains of logic, but instead
flashes from language game to language game, from context to context. From moment to
moment we are different persons - at Work, at play; in the formal public discourse of liberal
Studies
xxxix
or legal doctrine, in the world of love and trust, or the world of economic analysis
and each of these 'contexts' has its own tone, its own set of contradictions, its own
,,.la1Jtgmtge. At its best, critical legal theory takes this insight and uses it as the basis for a theory
, of our localities, a kind of theory which is simultaneously more modest and more wide-ranging
than anything else in the current world of academic social theory. For this, if for no other
reason, it deserves our interest.
Summary
In a moment I will try to answer the two questions I set myself at the beginning of this
Introduction. 'Why has the critical legal studies movement been so successful?' and 'Has
it anything to offer outside of the United States?' First, let me sum up.
We have now reached the moment when we can review critical legal theory as a whole,
albeit as a fragmented and heterodox whole. The first and most obvious question to ask is,
what do we expect from a legal theory? For reasons which now seem a little obscure, most
of the legal theories I studied during my legal education were attempting to define 'law'.
Given an intellectual world which does not believe that words or concepts have essences,
this task has little but an unlikely charm to recommend it. If a legal theory does not offer
a definition of the essence of law, what might we expect it to give us instead? Obviously,
the answer depends on what we want to .do with it. At a minimum it seems that a theory
should help us predict, influence and understand the law, and probably also emancipate
ourselves from delusions, false consciousness and simple mistakes in which legal concepts
play an important role. 84 What does this entail?
First, I think, we might legitimately ask of a legal theory that it give us a sophisticated
account of legal rules and legal reasoning. Ideally, this account should be both internal and
external. It should describe and explain legal reasoning from the inside, but it should also
stretch beyond law to connect its analysis to the larger political theories which justify the
power of the state on the one hand, and to the phenomenological description of social life
on the other. It would be a refreshing change if our theory did not claim to be describing
universal features of legal reasoning when it was only codifying the prejudices of a particular
nation's legal profession during a particular period of history. This prejudice against
parochialism would lead us to our second major requirement - an account of legal history
which helped us to understand legal and social change. Here it would be preferable to avoid
theories which explain everything (and therefore nothing) by referring to contentless notions
of 'progress', 'market needs' or 'class interest'. We might also want to broaden our conreption
of legal history beyond a simple timeline of rules to the study of legal ideology, legal
consciousness. Thus our theory would have to explore the connections between legal
consciousness and larger intellectual and apologetic trends in economics, political discourse
and social life. The theory should also be applicable to legal doctrine on the substantive level
- revealing and demystifying the analytic and rhetorical structures of the law. At the same
time, it would be good if the social visions and legal structures revealed by our analysis of
legal reasoning and legal history could be used to generate concrete doctrinal proposals,
applying the utopian blueprints immanent within legal rules to areas of social life where they
had previously been ignored or suppressed. It also seems re~sonable, if unlikely, for this
xl
theory to generate a set of ideas about legal practice. Finally, it should offer the potential
of a connection to social theory and to the larger intellectual and political movements of the
moment. Judged by these unduly harsh requirements for theory, CLS does rather well.
So critical legal theory passes a relatively stringent set of 'intellectual' standards for legal
theory, standards which positivism or natural law or legal realism or law and economics simply
could not meet. Yet beyond these intellectual criteria lies something else - a strong moral
vision, an idea of human potential.
The power to create new forms of human association in discontinuous constitutive moments and in
slow evolutionary practice, is as great a human power as that of creating material sustenance from
nature or that of encoding meaning in artifacts. When that power is dispersed through a hierarchy
of roles, and every person is constrained, by fear of falling lower and the illusory hope of happiness
higher up, to give themselves over to those roles, the power is still exercised. It is exercised, but
n9 one exercises it. Instead of the experience of creation, of freedom, there is the experience of
bondage, though the social totality is transformed in the process of that bondage. What the left offers
is libera,tion from the constraints of hierarchy, the process of bondage, through the conscious practice
of group self-determination, in every area of life. There is no one who lacks an objective interest
in this form of liberation. ss
The assessment Lhave given here is far from complete, of course. There is much wrong
with critical legal theory. It is sometimes pretentious and often difficult to understand. The
lauaable attempt to bring personal experience into legal scholarship has sometimes been the
warrant for self-indulgence. Friendly solidarity can shade into incestuousness; the tum to
social theory occasionally implies the tum to obscurity. Given the difficulties of the project
and the inevitable frailties of those engaged in it, I wonder if it could be otherwise. Despite
these flaws, I must admit to finding it the most interesting and thought-provoking scholarship,
not only about law, but about the structure of political discourse. Which leads me to the
questions which began this essay.
What is the Appeal of, CLS?

I started this Introduction by asking how a leftist, theoretical, academic movement could enjoy
success in the most traditional and atheoretical of, disciplines at a time of conservative triumph.
By saying this, I would not want to leave the impression that there has been no opposition
to CLS. Recent years have seen well-publicised denials of tenure to academics who espoused
feminist and CLS ideas, together with an apparent relaxation of scholarly standards for anyone
who wishes to suggest that critical legal scholars are nihilists, fascists, Marxists or (more
mysteriously) all three. A previously reputable legal scholar has told CLS 'nihilists' (a group
apparently coterminous with those who do not share his vision oflaw) that they have an ethical
obligation to depart the law schools, perhaps to seek a job elsewhere in the academy. 86
Beginning law teachers have been publicly advised at events put on by the American Association of Law Schools to avoid publishing non-mainstream scholarship if they want tenure.
Presumably the idea is that officially encouraged self-censorship is not a violation of academic
freedom. Some schools have announced proudly that they will show their commitment to
the community of ideas by refusing to hire any 'crits', while others have conducted barely
disguised purges of all who are tainted by association with non-mainstream ideas. 87 Yet,
Critical
Studies
xli
despite these McCarthyite reactions, the critical legal studies movement continues to grow
and expand. Indeed, one could compare the experience of repression and expansion met by
. progressive theorists inside the legal academy with that of progressive theorists ~n many other
' disciplines where, sadly, there is little to expand and nothing worth ~epressm~. . . . .
Thus, I must return to my original question. What accounts for the mcrease m VISibility
of the critical legal studies movement at a time and in a discipline which seem uniquely hostile?
Part of the answer, I think, lies in its relevance to three particular features of contemporary
American legal and political discourse.
Legalistic Political Culture
At least since the civil rights movement, the high culture of American politics has been
primarily a legalistic one. To a degree which astounded at least this foreign observer,
sophisticated public discourse on important issues of the day is framed in quasi-legal terms.
Newspaper editorials talk of 'due process' and !equal protection'. Public controversies are
debated in terms of constitutional entitlements and formal equality. The question may be posed
in terms of 'victims' rights' or 'the rights of the accused', 'foetal rights' or 'rights of privacy',
'First Amendment Rights' or 'police power rights'. But one thing is certain: it is discussed
in the language of rights rather than in any other moral or political language.
There are considerable advantages to a public consciousness dominated by rights thinking.
For example, by denying the accused the right to remain silent without prejudice, the
Conservative government in Britain has severely weakened the presumption of innocence
in Scottish law. It is hard to believe this would have passed muster as a political, let alone
a constitutional, matter in a society where political awareness has taken the form of a fixation
on the individual's rights against the government. Fascism and Stalinism provide ghastly
reminders of the fact that rights are an important, though not a sufficient, protection against
tyranny - a fact the left has. recognized for some time. Nevertheless, rights thinking creates
a tunnel vision of social justice. I shall give three brief examples.
First, at least as understood in the United States, the language of rights focuses attention
on excesses of public power, state power. In a world where enormous concentrations of
power are in private hands - Exxon, AT&T, ffiM and the rest - to accept a vision of social
justice which worries only about the dangers posed by the state is to condemn oneself to
wilful blindness.
Second, the overwhelmingly individualistic cast of rights thinking means that it deals poorly
with many of the most important issues of our times. The vision of the individual sovereign
rights-holder is poorly suited to the conceptualization of communal problems, such as the
despoliation of the environment. In a famous Supreme Court environmental law case, Justice
Douglas was reduced to granting a right of standing to trees. Though the idea of bosky rights
holders is an attractive one, it is also a sure sign that the language of rights must be twisted
and warped in order to deal with the problem of pollution. Of course, we could argue for
rights of future generations, rights of flora and fauna, rights of the ecosphere itself. But the
amount of energy required to stretch the language of rights to cover trees seems most likely
to weaken both rights thinking and environmentalism.
Third, if we conceive of injustice as the intentional violation of a victim's righ~ by a defined
individual, we lose sight of the structural injustices caused by racism, seXIsm and class
xlii
:1r'
'
~~I
,.[
~~~:,
!i
'
oppression. The fat Southern sheriff who stands on the courtroom steps with his shotgun
to stop a peaceful contingent of black people from voting is the easy case under rights thinking.
But how does rights thinking deal with the fact that the average black college graduate earns
only as much as the average white high-school graduate? How can it deal with the fact that
those jobs traditionally seen as 'women's work' are paid at a much lower level than 'male
jobs' at a comparable level of skill? In those cases where there is no defined 'bad actor'
where there is no intentional act, rights thinking is not only powerless, but blind.
'
In a society where not just legal discourse, but much of public debate is constructed in
terms of rights, the CLS analysis of rights thinking and formal equality is of considerable
impo~ce. As always, ~here is not one CLS approach but many. 88 Peter Gabel has explored
~e .so~Ial and psychological roots of the rights world-view. 89 Alan Freeman has exposed the
limitatiOns of the 'perpetrator perspective' in anti-discrimination law and has argued instead
for a vision of anti-discrimination constructed from the victim's point of view.90 There is
a ~ongstanding deba~~ on whether we should move towards the creation of communal rights,
With members of cntlcallegal studies taking both sides (sometimes simultaneously).9t Mark
Tus~et has given. extended consideration to the question of whether the indeterminacy critique
of nghts undermmes the central role of rights thinking in the civil libertarian tradition.92
What all of these very different perspectives share is a suggestion that the liberal-left in the
~nited States is bogged down and that - partly for the reasons given above - its political
discourse has both less power to inspire and less bite on concrete injustice.
For the last 35 years, the central project in the liberal conception of justice has been to
universalize a moral and constitutional right against formal inequality. The right of equal
concern and respect should be exended to people of colour, to women, to gays, to the disabled.
Th~t project of universalization of formal rights was a profoundly important one and its
achiev~ments need to be extt::nded and protected. Alas, it is running out of steam and as it
does so, the limitations described earlier are becoming more and more obvious. At least as
contained in the liberal assumptions of individualist formal equality, the legal or political
language of rights cannot even begin to specify many of the things that are most wrong with
the world, let alone express th~t wrongness to a popular movement ..
There is another way of putting it. The liberal political agenda in the United States sees
the in~oduction of improperly obtained criminal evidence as an issue .of principle ~omething not to be allowed, no matter what the social cost. But the progressive decrease
m corporate taxes, or the appalling infant mortality rate in America's inner cities or the
increase in the illiteracy rate, or the widening gap between rich .and poor - jt se:s all of
the~e ~ngs as issues of politics, of expediency .. These are bad things to be..sure, things against
which hberals have sometimes fought, but they are not violations of sacred principle. They
are not the issues by reference to which someone would define himself as a liberal. Does
this make sense?
~ would suggest tha~ one r~on for the success of CLS is that it has interesting and incisive
thmgs to say about this faltenng attempt to conceive justice in terms of universalized formal
rights against the state. 93 Not only has it opened up the channels to .other, less familiar
political traditions - radical republicanism, feminism, democratic socialism, anarchosyndicalism, black nationalism - it has also gone to the root of the problem. It has offered
~ incisive critique of a le~istic political philosophy on its own grounds - in the high
hberallegal theory of constitution and state. To frustrated and burnt-out liberals, tired of
xliii
trying to twist the language of rights to encompass some new social horror, this development
95
has been profoundly threatening94 but also profoundly liberating .
The Rise of Technocracy

A second feature of contemporary American politics is the increasing conversion of social,
political and moral issues into decisions for 'experts'. The nightmare culmination of these
tendencies would be something like B.F. Skinner's world 'Beyond Freedom and Dign}ty'
wher7., since behaviourists can predict and control human behaviour without such concepts
as 'mind', 'dignity' or 'freedom', those concepts are declared never to have existed. The
next step is the turning over of all government to behavioural programmers whose meansends rationality is declared to be apolitical and beyond morality. If this is the nightmare version
of technocracY,, more_ mundane is the tendency for bureaucracies to seize the authority and
prestige of science and use them to cloak decisions based on a set of assumptions which are
actually politically and morally controversial.
Alt!tough there exists a sophisticated literature de(cribing the flaws and fallacies of scientism
and technocracy on an abstract level, 96 not enough work has been done within individual
disciplines and areas of social life to show how those flaws and fallacies manifest themselves
in a particular setting. Critical legal theory offers the most sophisticated available criticisms
, of technocracy as it manifests itself in law. In particular, critical legal theorists have produced
the seminal (and germinal) critigues of the economic analysis of law. Ed Baker has shown
the way that ,economic analysis, or at least Judge Posner's version of it, tends to favour the
97
rich over the poor and the productive user over the consumptive user. Mark Kelman has
highlighted the ideology immanent in economic analysis, and i!J particular in its vision of
free choice and personal utility. 98 Tom Heller has shown how 'law and economics' fails to
99
produce unequivocal answers even in supposedly receptive areas of faw. Duncan Kennedy
has argued that cost-benefit analysis is irremediably vacuous and open-ended without the
insertion of exactly the kind of ad hoc intuition about value that the system was supposed
.
.
I
'
,,
'
...
"
to avoid. 100
Critical legal theory has coupled these formal and carefully worked out analytic critiques
of technocracy in general, and law and economics in particular, with a set of practical legal
and economic proposals that owe much of their inspiration to the legal realist vision of the
market enunciated earlier. Thus, consider Kennedy's work on contract, tort and housing law;
Singer's work ori the legal regime of plant closings; Unger's discussion of investment and
capital markets, and the wide array of proposals from critical labour la~ theory. All give
evidence ~f a vision of a remade social world different from that possessed by either
B.F. Skinner or Judge Posner. This work does not try to obscure the values it is informed
by, and its social imagination stretches beyond the New Deal. Offering both a powerful critique
of its main alternative and a broader vision of the limits of social possibility, critical legal
theory has thus had much to recommend it, particularly during a swing to the right when
the academic left seemed otherwise devoid of ideas.
A Theoretical Crisis in Law Schools

The third factor which has contributed to the timeliness of critical legal theory is a theoretical
crisis in American legal academia. In 1984 Bruce Ackerman published a book called The
xliv
Re-construction of American Law, which advised lawyers, among other things: to learn to
use the tools of empiricism or risk losing their power to men with calculators and white coats.
The passage was not a joke. Since the legal realist movement undermined faith in the neutrality,
consistency and determinacy of law, legal academics have had a hard time coming up with
any convincing and consistent theoretical explanation which maintained the legitimacy of the
legal system. 101 Sometimes this crisis plays itself out only over the question of the
appropriate justification for the judicial review of legislative acts; sometimes it ranges more
widely over the legal system as a whole.
The continued, almost frenzied, oscillation from legal process theory to Rawlsian natural
law, from original intent to law and economics reveals more than a discipline sampling different
theories of interpretation. It may sound strange to say so, but it also marks a problem of
role which legal academics must confront every day. What exactly are you? A social engineer,
cutting beneath the legal verbiage to find the deep social policies which inform a doctrinal
field? A natural lawyer, measuring the court's decision against the rule which would have
been reached behind the Rawlsian veil of ignorance? A hired gun, shootingout arguments
faster th~n your students? A doctrinalist, parsing pluralities and filleting footnotes to find
the Supreme Court's real meaning? An economic analyst of law, seeing every rule as merely
a shorthand version of the injunction to seek an economically efficient solution?
The CLS contribution to both the theoretical and the personal sides of this dilemma was,
first of all, to bring it out into the open in a way that it never had been before and then to
suggest that the question itself might be wrongly phrased. Perhaps we should not start with
the assumption that legal doctrine as it existed was entirely correct and entirelY legitimate,
and then try to fashion a theoretical cover which fitted the status quo like a slipcover on an
overstuffed armchair. Openly acknowledging that their discipline was loaded on every level
with competing moral ideals and political visions had at least the virtue of honesty. Arguing
that this was a situation to be cherished rather than lamented had the virtue of optimism.
Claiming that it meant one could work as an academic or lawyer in a creative and morally
responsible manner that exemplified the humanities rather than the sciences ... well, that
had the virtue of novelty. And perhaps even the ring of truth. Who is to wonder, then, that
even those who disagreed with every aspect of CLS did so passionately? In the end, this
may be the single greatest reason for the rise of CLS. It was an internal as well as an external
critique. It spoke to lawyers and legal_ academics in a way that connected theoretical speculation
to their daily experience of the law, rather than merely their abstract curiosity. It offered
not merely a theory of law but an associated self-conception - the politically active, socially
responsible practitioner of a (potentially) noble calling. But does it have anything to offer
outside of the particular social conditions which gave it birth? Does it have anything to offer
outside the United States?
power, a constitutional tradition unlike any other in the world and a judicial and jurisprudential
tradition which was at once convinced of and concerned about the indeterminacy of the law.
In that country, CLS would have much to offer. Its commentary on the blindness imposed
by rights thinking would be useful. Its practical suggestions for change would be novel. Its
exposure of the indeterminacy and hidden political bias of technocratic and economic decisionmaking would be important. Its focus on law would offer believable strategies for important
social change, and its insistence on confronting the indeterminacy of legal doctrine head-on
would be both threatening and fascinating to the legal profession. Yes, in such a country,
CLS would be of undeniable relevance. But would it be relevant anywhere else?
The answer, I think, could be 'yes'. Critical legal thought could be part of the larger
transformation of our polities which will take place as a result of the great events of the last
few years. I stress the 'could be'. The world in 1991 looks so different from the world of
four years ago that not even the politicians' thesaurus of superlatives has been able to keep
up. The changes in Eastern Europe and in the Soviet Union are a fact, even if only for a
moment. The question now is what they mean. Granta issue number 30, titled simply 'New
Europe', had a series of short articles from European artists, intellectuals and politiciansIsaiah Berlin, Tony Benn, Josef Skvorecky and so on. Each of them was asked to comment
on the state of Europe on Christmas Eve 1989. Jurek Becker, one of East Germany's favourite
authors, had this to say.
CLS outside the United States

Take a country where the range of perceived economic alternatives stretches only as far as
the New Deal, where the language of rights dominates public discourse, and where an
increasing range of issues is being withdrawn from public decision-making to be solved by
technocrats. Imagine also that the country had a legal profession of unprecedented size and
xlv
'Really existing socialism' is on the way out, no question. Good thing, too, if you fix your mind
on the true condition of life in the socialist states, and not the fictional version which their leaders
have passed off as the truth. The West has won- and there's the rub. Here in the West, we live
in societies that have no particular goal or objective. If there is any guiding principle, it's consumerism.
In theory, we can increase our current consumption until the planet lies about us in ruins and, given
current trends, that's precisely what will happen. In spite of everything we knew and understood
about them, we had a hope that the socialist states might find a different path. That hope is gone.
People there are desperate to adopt the principles of the West: the conversion of as many goods
as possible into rubbish (which is what consumption means), and the free expression of all types
of ideas (accompaniedby a growing reluctance to think at all). Converts are liable to be especially
strict and zealous in the observance of their new faith; I expect the same will apply to the people
of the recently converted nations. 102
~orne of what Becker says has proved right already, at least as regards the zealotry. But
what about the rest of his comments? To believe that the drearily brutal societies of Eastern
Europe could be emblematic of any kind of hope, it is necessary to imagine that there are
only two possible types of societies and that the Eastern European states represented one
of them. In other words, the quotation reflects exactly that theory of social types to which
critical legal theory has mounted a powerful challenge. The belief that, as Roberto Unger
puts it, there is 1a limited menu of social forms' is simply undermined by the realist-inspired
work on the structure of the economy, by the CLS tradition in legal history exemplified by
Bob Gordon's article and by the criticisms of the Marxist base/superstructure division. Legal
realism points out that there is nothing natural, logical or necessary about the particular
configuration of social power, or the particular distribution of wealth that we have at the
moment. Nothing inherent in the concept of a 'free market' or the social power of capitalists,
or men, or white people, mandates that our institutions have exactly their present shape. The
xlvi
accidents, defeats, and victories which established the contours of Western economic
institutions need not have normative force for Eastern Europe.
None of this implies that economies do not function better when they are free of centralized
and bureaucratic control. It merely implies that economic and social power can be decentralized
under different plans than those provided by the gurus of monetarist economics. Nor does
it imply that the free market ideology, as an ideology rather than as a coherent economic
strategy, will not be pushed on Eastern Europe by large corporations and creditor nations.
As the people of Eastern Europe look at the changes wrought on their societies in the name
of economic science and classical liberalism, they may wonder whether there was really no
third way between socialism and capitalism. It may be, and again I stress the conditional,
the case that the 1990s will see the beginnings not only of a third way, but a fourth, fifth
and sixth- ranging from worker ownership, through community and workplace decisionmaking, to decentralized local. collectives and regional markets - all operating without
extensive state intervention, but with considerable local self-determination. Ironically, many
of these types of economic organization would be closer to microeconomics' decentralized
world of self-determining actors than is today's 'free-market', subject as it is to so many
layers of bureaucratic governance - from the five-year plans of the giant multinationals to
the quasi-state organizations which interfere at every level of capital formation, deployment
and transfer.
If, through struggle and imaginative vision, any of this comes to pass, we will need a
corresponding revolution in the dogmas now taught about development economics and the
structure of a legal system under a free market. A small part of that revolution has already
been initiated by critical legal theory.
When we tum to Western Europe, it seems to me that critical legal theory has something to
offer the tiring parties of Fabian socialism and union-organized leftism. If the left in the United
States is hampered by the realization that justice cannot be achieved by the universalization
of formal rights against the state, the left in Western Europe seems to have lost mom~ntum
after the building (and now, the partial dismantling) of the great welfare states. Move~ents
like the Greens have had enormous success in Europe in recent years, partly because they
offer an analysis which focuses on something missed by the ruling visions of politics - a
subjugated knowledge, if you like. The ideas put forward by Kennedy's discussion of hierarchy
do exactly the same thing. A transformation of civil society from within, armed rather than
disempowered by the knowledge that there is no one correct line for social change,
concentrating on the world of work and interaction as well as the public arena of the state
- that is a vision which has been missing from European politics for a long time.
All of this is very tentative, of course. Perhaps none of it will come to pass, in which case
we will be the poorer. Yet I cannot help thinking that the idea of local theory, exemplified
by the essays I have included here, is an idea whose time has come. If I have managed to
give a sense of the very different 'local theories' that critical legal thought offers us regarding
legal reasoning, history, doctrine, practice and social theory, then this book has been a sucCess.
Notes
* Introduction copyright James Boyle
1991. Thanks to friends and colleagues for their comments

and to Sonia Bridgman, Editor, Dartmouth Publishing Company. Attentive readers may be puzzled
xlvii
by the unusual citation form used in this volume. Lest I be suspected of the sin of originality, I must
point out that this form ~as impose? by the publishers a~d. does not represent a challenge on my
part to conventional citatiOn forms m law and the humaruties.
12.
13.
14.
15.
16,
17.
18.
19.
Kennedy and Klare (1984), 'Bibliography of Critical Legal Studies', Yale lAw Journal, 94, 461ff.
See for example, Abel (1982), 'A Socialist Approach to Risk', Maryland lAw Review, 41, 695ff.
See for example, Kennedy (1980), 'Theses on International Law Discourse', Gennan Yearbook
of International lAw, 23, 353ff.
-see for example, Dalton (1985), 'An Essay in the Deconstruction of Contract Doctrine', Yale
lAw Journal, 94, 997ff.
See Frug (1985), 'Re-reading Contracts; A Feminist Analysis of the First Year Casebook', American
University Lnw Review, 34, 1065ff; Olsen (1983), 'The Family and the Market', Harvard lAw
Review, 96, 1497ff.
See for example, Gabel (1977), 'Intention and Structure in Contractual Conditions: Outline of
a Method for Critical Legal Theory', Minnesota lAw Review, 61, 60lff.
See Cornell (1989), 'Dialogic Reciprocity and the Critique of Employment at Will', Cardozd lAw
Review, 10, 1575ff. and other articles from the Hegel symposium in that volume.
See Freeman (1981), 'Race and Class: The Dilemma of Liberal Reform', Yale lAw Journal, 90,
1880ff; Peller, 'Race Consciousness'; Kennedy, 'The Case of Cultural Pluralism in Legal Academia'
(forthcoming Duke lAw Journal).
See Olsen, supra note 5; MacKinnon (1982), 'Feminism, Marxism, Method and the State: An
Agenda for Theory', Signs, 7, 515ff.
Galanter (1974), 'Why the "Haves" Come Out Ahead: Speculations on the Limits of~gal C~ge' ,.
Lnwand Society Review, 9, 95ff; Freeman, supra note 8; Klare (1982), 'Labor Law and the Liberal
Political Imagination', Socialist Review, 62, 45ff.
Crenshaw (1988), 'Race, Reform and Retrenchment', Harvard lAw Review, 101, 1331ff; Delgado
(1987), 'Minority Critiques of the Critical Legal Studies Movement', Harv?rd Civil Rtgh~s-Civil
Liberties Lnw Review, 22, 323ff; Holt, 'Recovery by the Worker who Qmts: A Comparison of
mainstream, legal realist and CLS approaches to a problem of 19th century contract law', 1986
Wisconsin lAw Review, 677ff.
The most important examples are M. Horwitz (1977), The Transfonnation of American lAw
178D-1860; R. Unger (1975), Knowledge and Politics; (1988), The Critical Legal Studies
Movement; D. Sugarman (ed.), (1983), Legality, Ideology and the State.
M. Kelman (1987), A Guide to Critical Legal Studies; A. Alttnan (1990), Critical Legal Theory.
D. Kairys (ed.), (1982), The Politics ofl.nw; A. Hutchinson (ed.), (1989), Critical Legal Studies;
Critical Legal Studies: Essays on Critical Legal Studies Selected from the Pages of the Harvard
lAw Review (1986).
(1984), '.Critical Legal Stu~ies Symposi~', Stanford University, lAw Revi~w, 36, ~~~; (1984),
'Symposmm', George Washmgton lAw Revzew, 52, 239ff; (1985), A SymposiumofCntical Legal
. .
Studies', American University lAw Review, 34, 929ff.
SeeR. Unger (1915),Knowledge and Politics, 83-103. This summary does not do JUStice to
Unger's ideas, which apply far beyond the theory of adjudication: For a more detail~d discussion
see Boyle (\985), 'The Politics of Reason: Critical Legal Studies and Local Social Thought',
University of Pennsylvania lAw Review, 133, at pp. 708-715, 757-760, 773-778 ..
See Boyle, Ibid. at 696-708.
See Cohen (1935), 'Transcendental Nonsense and the Functional Approach', Columbia lAw Review,
35; 809ft
SeeK. Llewellyn (1960), The Common lAw Tradition: Deciding Appeals; (1962), Jurisprudence:
Realism in Theory and Practice. E. Levi (1949), An Introduction to Legal Reasoning. Mark Kelman
has argued that it is these internal contradictions of ideology and political vision that accou~t for
legal indeterminacy. Consequently, he feels that I, among others, put too much emphasis on
linguistic and conceptual openness. M. Kehnan, A Guide to Critical Legal ~tudies supra n.ote 1~,
at 12-13 303. This seems to me to represent an important misunderstandmg of the relationship
between fue 'linguistic' and the 'contradiction' arguments. In fact, one of the principal reasons
xlliii
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
why Kelman's mirror-image, contradictory visions cannot be convincingly reconciled by some

grand mediating concept lies in the fact that language just does not work that way. A quick example
may illustrate the point. One of the many conceptual devices used to mediate an individualist,
libertarian vision of tort law and a communalist, altruist vision is the act/no act distinction. There
is no liability for a. failure to act, but once one acts, one is potentially liable. One can walk away
from a drowning child because no 'act' has been taken, but one cannot pull a child to the bank
and leave him there without potential liability for what ensues. The line appears to be neat, definite
and even intuitively satisfying. Yet there is no clear line between 'act' and 'no act' .)s leaving
a broken-down truck on a highway overnight without safety lights ~n 'act' or a 'failure to act'?
Language has been pressed into service to reconcile or at least conceal Kelman's contradictory
visions, butthose contradictions s,eep back into con&eiousness because oflinguistic and conceptual
openness.
See Hale (1943), 'Bargaining and Economic Liberty', Columbia Law Review, 43, 603ff; Cohen
(1933), 'The Basis of Contract', Harvard Law Review, 46, 553ff; Cohen (1927), 'Property and
Sovereignty', Cornell Law Quarterly, 13, 11ff; Jaffe (1937), 'Law Making by Private Groups',
Harvard Law Review, 51, 201ff. For critical legal scholarship which comments on the implications
of the realist attack on the public/private distinction, see Kennedy (1982); 'The Stages of Decline
of the Public/,Private Distinction', University of Pennsylvania Law Review, 130, 1349ff; Boyle
,(1985), 'The Anatomy of a Torts Class', American University Law Review, 34, 1003, 1023-1034.
The best example of the contracts analysis comes in Clare Dalton's elegant and insightful 'Essay
in the Deconstruction of Contract Doctrine', supra note 4. For a pathbreaking application to
international law see David Kennedy's 'Theses on International Law Discourse', supra note 3.
Kennedy (1979), 'The Structure of Blackstone's Commentaries' ;Buffalo Law Review, 28, 209, 213.
See Boyle, 'The Politics of Reason', supra note.16. This discussion is drawn from Boyle (1984),
'Structuralism', an unpublished manuscript presented to the 1984 American University colloquium
on structuralism, semiotics and legal theory. I wish to thank the members of that group for their
comments on my draft. Another member of the group, Joan Williams, later published an article
which drew rather different conclusions from an apparently similar comparison between critical
legal studies and classical legal thinkers. My argument should not be confused with hers. See
Williams (1987), 'Critical Legal Studies: The Death of Transcendence and the Rise of the New
Langdells', New York University Law Review, 62, 429ff.
See Marx, 'On the Jewish Question' in,R. Tucker (ed.), (1978), Marx-Engels Reader, 33-36;
J.P. Sartre (1968), Being and NothingrJess.
Gabel (1979), 'Reification in Legal Reasoning', Researches in Law and Sociology, 3, 25, 28
(footnote omitted).
Gabel (1986), 'Founding Father Knows Best', Tikkun, 1(2), 4lff.
Gabel (1984 ), 'The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves',
Texas Law Review, 62, 1563ff. Gabel's arguJilent is sometimes taken to be a complete rejection
of 'rights' and a dismissal of their use or importance in political struggles. See Delgado, 'Minority
Ctitiques Symposium', supra note 11. This is puzzling, given explicit statements like the following:
'I do not think that we ever are entirely alienated from each other, nor do I think legal concepts
like "rights" by their very nature must have an alienated meaning ... but my emphasis will be
on the alienated meaning of existing legal thought because. this meaning remains dominant in our
culture, and because the failure to fully understand it has played some part in limiting the goals
of potentially eptancipatory social movements[.]' Gabel, Ibid, at 1563.
Ibid.
'The characteristic predicament of the modem lawyer is to argue constantly about policy, as if
rational choice among competing values were possibl~. yet to remain faithful to the idea that values
are subjective and to the political doctrine of which that idea is a part. The purposive doctrine
of adjudication is simply the theoretical statement of this everyday contradiction.' R. Unger (1975),
Knowledge and Politics, 95ff.
Ironically, despite their obvious optimism about making the world a better place, it was the former
group who were called nihilistic, not the latter. Carrington ('1984), 'Of Law and the River', Journal
of Legal Education, 34, 222ff. I cannot recommend too highly the beautifully written and
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
xlix
devastatingly polite response by Robert Gordon (1985), 'Response', Journal of Legal Education,
35, lff.
See A. Altman (1990), Critical Legal Studies.
For example, if you were to compare Dworkin's early writing about legal reasoning with a CLS
article such as Kennedy's, they would appear completely incompatible. Law's Empire on the other
.haQ.d, has distinct resemblances to critical legal theory in general and this article in particular.
There are still differences, and Dworkin tries to make the most of them, but if one compares
the 'right answers' and 'hard cases' of his earlier work to the 'chain novels' of his later work,
the direction of drift is clear. SeeR. Dworkin (1977), Taking Rights Seriously; R. Dworkin (1986),
Law's Empire; Boyle (1987), 'Legal Fiction' (Book Review), Hastings Law Journal, 38, 1013ff.
David Kennedy provided the first and most insightful commentary on the general shift of liberal
scholarship to an interpretive model in his 1985 article, 'The Tum To Interpretation', Southern
California Law Review, 58, 251ff.
Ibid. at 562.
M. Tushnet (1987), The NAACP's Legal Strategy against Segregated Education, 1925-1950; M.
Tushnet (1981), American Law of Slavery. Together with Hotwitz's work, one of the most important
early contributions to the development of critical legal history was Tushnet's review of Friedman's
'A History of American Law'. Ironically, most of the review consists of a radical criticism of the
excessive materialist and instrumentalist tendencies in liberal legal history. The concluding paragraph
illustrates the tension I have just described between visions of critical legal history. 'Professor
Friedman's perspective on American legal history is deficient because it cannot take into account
either the autonomy of the legal order - the influence of tradition and tendencies toward consistency in legal outcomes, or the ideology of the legal order - the way in which autonomy promotes
a neutral system of rules which masks the skewed distribution of actual results. The perspective
offered in this article attempts to correct those deficiencies. It respects the independence of legal
reasoning about particular problems, while taking account of the relation between the legal order
and the social and economic order by defining that relation in terms of its ideological contours
rather than in terms of the unmediated play of pressure groups.' Tushnet (1977), 'Perspectives
on the Development of the American Law' (Book Review)> Wisconsin Law Review, 81, 109ff.
E.P. Thompson (1963), History of the English Working Class; (1975), Whigs and Hunters: The
Origins of the Black Acts.
D. Hay et al (1975), Albion's Fatal Tree: Crime and Society in 18th Century England.
D. Sugarman (ed.), (1983), Legality, Ideology and the State.
E. Genovese (1972), Roll, Jordan Roll: The World the Slaves Made; (1969), The World the
Slaveholders Made. For the origins of 'hegemony' see A. Gramsci in Q. Hoare (ed.), (1971),
Selections from the Prison Notebooks.
Robert Gordon (1984), 'Critical Legal Histories', Stanford Law Review, 36, 57, 60-64.
Ibid. at 71.
In particular, he appears to be referring to the sterling work done by Karl Klare and Cathy Stone.
See Stone (1981), 'The Post War Paradigm in American Labor Law', Yale Law Journal, 90,
1509ff; Klare (1978), 'The Judicial Deradicalization of the Wagner Act and the Origins of Modem
Leg~ Consciousness, 1937-1941', Minnesota Law Review, 62, 265ff.
Gordon, supra note 39, at 70-71 n. 35.
This is part of a larger project of Kennedy's, demonstrating the interrelationship and ideological
power of legal and economic thought in the classical era. See D. Kennedy (1985), 'The Role
of Law in Economic Thought', 14merican University Law Review, 34, 939ff. Perhaps because
of the methodological problems described later in this introduction, Kennedy has published only
fragments of this work, although those parts which have been published have proven to be very
influential. See Mensch (1982), 'The History of Mainstream Legal Thought' in D. Kairys (ed.),
The Politics of Law; Peller (1988), 'The Classical Theory of Law', Cornell Law Quarterly, 73,
283ff. The conceptual scheme Kennedy describes has also been substantiated and elaborated upon
by the most careful recent historical research. See May, infra note 45.
Mensch (1982), 'The History of Mainstream Legal Thought', in D. Kairys (ed.), The Politics
of Law at 18.

45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
63 . R. Unger (1987), Politics: A Work in Constructive Social Theory, 3 volumes; (1986), The Critical
Nockelby (19"80), 'Tortious Interferences with Contractual Relations in the Nineteenth Century:
The Transformation of Property, Contract and Tort', Harvard Law Review, 93, 1510ff; Vandervelde
(1980), 'The New Property of the Nineteenth Century: The Development of the Modem Concept
of Property', Buffalo Law Review, 29, 325ff; May (1989), 'Antitrust in the Formative Era: Political
and Economic Theory in Constitutional and Antitrust Analysis, 1880-1918', Ohio State Law
Journal, 50, 257ff; Peritz (1990), 'Frontiers of Legal Thought 1: A Counter-History of Antitrust
Law', Duke Law Journal, 263ff.
May & Nockelby, supra note 45; Singer (1982), 'The Legal Rights Debate in Analytical
Jurisprudence from Bentham to Hohfeld', Wisconsin Law Review, 975ff; Peller, infra note 80.
See also Bone (1986), 'Normative Theory and Legal Doctrine in American Nuisance Law: 1850
to 1920', Southern California Review, 59, 110lff.
Holt, supra note 11.
Kennedy, supra note 43.
For the germinal description of this idea, seeR. Unger (1986), The Critical Legal Studies Movement,
at 91-108.
Kelman (1981), 'Interpretive Construction in the Substantive Criminal Law', Stanford Law Review,
33, 591,92.
Ibid. at 594.
Austin (1988), 'Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of
Emotional Distress', Stanford Law Review, 41, lff.
Austin, supra note 52, at 5.
Singer (1988), 'The Reliance Interest in Property', Stanford Law Review, 40, 6llff.
Olsen, supra note 5.
Freeman (1978), 'Legitimizing Discrimination Through Anti-discrimination Law', Minnesota Law
Review, 62, 1049ff; Freeman, 'Antidiscrimination Law: The View from 1989' (forthcoming Tulane
Legal Studies Movement.

64. D. Kennedy (1983), Legal Education and the Reproduction of Hierarchy: A Polemic against the
System at 80-81.
65. M. Foucault (1980), 'Power/Knowledge' in C. Gordon (ed.), Selected Interviews and Other Writings
at 78, 80.
66. Ibid. In the same article, Foucault goes on to argue that we should build our theory around
'subjugated knowledges'. He actually uses this phrase to refer to two types of kl)owledge. First,
the ideas and practices which do not fit within some ruling orthodoxy and so are considered to
be unimportant or irrelevant. Foucault's examples mainly concern the anti-psychiatry movement.
Other examples might include the inability of classical economics to deal with rent, <fr the difficulty
legal formalism faced in coming up with a non-circular definition of damnum absque iniuria. The
second kind of subjugated knowledges are literally that: the views of those who are not heard
because of their race, class, gender, status or occupation. Feminist history and workers' history
are the paradigmatic examples. CLS writing concentrates on both types of subjugated knowledge.
Thus, despite their completely different methodologies and subject matter, both Joe Singer's work
on damnum absque iniuria and Regina Austin's use of worker oral histories share one strategy
- the attempt to gain a new view of the cor.e by focusing on what it excludes.
67. In the former case it is the authoritative metaphors of social life that tell us that the relationship
of a management company to commercial space and my relationship to private space are 'the
same' -both 'property relationships' -and that the reasons for the desired entry (public speech
or yrivate profit) are irrelevant. Yet this is, literally, a process of analogy, 'not reason'. In the
latter case, th<? commonly made claim is that democracy is a luxury and that most forms of social
life are strongly hierarchical. Actually, as Roberto Unger points out, the 'elites' of scientific
research, economic organization and even the military tend to be organized in dramatically less
hierarchical ways than ~e mainstream. R. Unger, Politics supra note 63.
68. Kennedy, supra note 64, at 87-88.
69. Ibid. at 89-90.
70. See supra note 20; Kennedy's most extended description of the realist account of power, economy
and state is given an unpublished manuscript called 'The Legal Realist Element or The Stakes
Of Law'.
71. M. Horwitz (1977), The Transformation of American Law.
72. This claim may seem like the worst kind of legalism. Surely, the relative strength of groups in
society is not influenced in any important way by law, but rather by the configuration of economic,
physical and ideological power which they can bring to bear? The realist response was that this
power is generally brought to bear within a matrix of legal rules. In the British miner's strike,
the answers to the question whether or not secondary picketing was illegal, or whether unions
could be sued for their actions, altered the balance of power on both sides, forcing commitment
of forces which might otherwise have gone elsewhere. In fact, since the union and the NCB are
legal entities, it was law that constituted the configuration of the dispute. The obvious response
to this point is that the legal rules themselves are the result of economic power, not the cause
of it. In its weak form ('the relationship between "law" and "economy" is a dialectical relationship
between many kinds of power, each "constituted" by the others'), the realist would agree with
the argument. The stronger form of the argument ('law is superstructural and irrelevant, economy
is substructural and basic') runs up against the problem of circularity and conceptual incoherence.
See supra note 66.
73. For a brilliant but unconvincingly Procrustean attempt to get round this problem, see G. Cohen
(1978), Marx's Theory of History: A Defence.
74. Boyle, supra note 20, at 1023-34; Mensch, supra note 44, at 26-29.
75. Hale, supra note 20, at 626-28.
76. Kennedy, supra note 43; Kennedy (1982), 'Distributive and Paternalistic Motives in Contract
and Tort Law', Maryland Law Review, 41, 563ff; Kennedy and Michelman (1980), 'Are Property
and Contract Efficient?', Hofstra Law Review, 8, 71lff.
77. Kennedy, supra note 64, at 90.
Law Review).
57.
58.
59.
60.
61.
62.
li
D. Kennepy (1988), International Legal Structures; Casebeer (1985), 'Teaching an Old Dog New
Tricks', Cardozo Law Review, 6, 765ff; Finley (1989), 'A Breaking in the Silence: Including
Women's Issues in a Tort's Course', Yale Journal ofLaw and Feminism, 1, 41ff; Abel, 'A Socialist
Approach to Risk', supra note 2; Frug (1980), 'The City as a Legal Concept', Harvard Law Review,
93, 1057ff; Littleton (1987), 'Reconstructing Sexual Equality', California Law Review, 15, 1279ff;
Simon (1985), 'The Invention and Reinvention of Welfare Rights', Maryland Law Review, 44,
lff; (1986), 'Rights and Redistribution in the Welfare System', Stanford Law Review, 38, 1431ff;
(1978), 'The Ideology of Advocacy', WISconsin Law Review, 29ff; M. Tushnet (1988), Red, White
and Blue: A Critical Account of American Constitutional Law; (1986), 'The U.S. Constitution
and the Intent of the Framers', Buffalo Law Review, 36, 217ff; (1984), 'Critical Legal Studies
and Constitutional Law', Stanford Law Review, 36, 632ff; Heller (1983), 'Is the Charitable
Exemption from Local Property Tax an Easy Case?' in D. Rubinfeld (ed.), Essays on the Law
and Economics of Local Government, 183ff; Dalton, supra note 4; Frug, supra note 5; Carlson
(1987), 'The Logic and Limits of Bankruptcy Law', Michigan Law Review, 85, 1341ff; 'Postpetition
Interest under the Bankruptcy Code', University of Miami Law Review, 43, 577ff.
Gabel and Harris (1982-83), 'Building Power and Breaking Images: Critical Legal Theory and
the Practice of Law', Review of Law and Social Change, 11, 369, 370 (footnotes omitted).
For the most dramatic example see Kennedy (1985); 'Spring Break', Texas Law Review, 63, 1377ff.
Space did not permit the inclusion of the best critical discussion oflegal ethics (Simon (1978), 'The
Ideology of Advocacy: Procedural Justice and Professional Ethics', Wisconsin Law Review, 29ff.)
or of the lawyer's role seen from a CLS point of view (Simon (1984), 'Visions of Practice in Legal
Thought', Stanford Law Review, 36, 469ff. With their thoughtful and lucid accounts of the implicit
legal theory unwarrantably presupposed by conventional ideas of professional responsibility, Simon's
articles are now discussed in every legal ethics book in the country. It would not be stretching
a point to say that he has transformed academic discourse about professional responsibility.
But see Gabel, supra note 27.
Boyle (1985), 'Modernist Social Theory: Roberto Unger's Passion' (Book Review), Harvard Law
Review, 98, 1066-67.
0
.,
..
Iii
,,
II
78. The participants' own oblique discussion of this point is to be found in Gabel and Kennedy (1984),
'Roll Over Beethoven', Stanford Law Review, 36, Iff.
79. Peller (1985), 'The Metaphysics of American Law', California Law Review, 73, 1151ff (emphasis
added).
80. Ibid. at 1182.
81. Ibid. at 1290.
82. For a thoughtful commentary on and critique of this idea, see Coombe (1989), 'Room for
Manoeuver: Towards a Theory of Practice in Critical Legal Studies', Law and Social Inquiry,
14, 69ff.
83. Kennedy, supra note 64, at 83. Funnily enough, another writer seems to have had similar ideas. 'We
shall confront the world not as doctrinaires with a new principle: "Here is the truth, bow down before
it." We develop new principles to the world out of its own principles. We do not say to the world:
"Stop fighting, your struggle is of no account. We want to shout the true slogan of our struggle
at you." We only snow the world what it is fighting for.' Marx, 'For a Ruthless Criticism of
Everything Existing' in R. Tucker (ed.), (1978), The Marx-Engels Reader, at 14 (emphasis added).
84. See J. Habermas (1968), Knowledge and Humnn Interests.
86. Carrington, supra note 30.
87. See Raskin, 'Laying Down the Law: The Empire Strikes Back' ih J. Trumpbour (ed.), (1989),
How Harvard Rules; Ftug (1987), 'McCarthyism and Critical Legal Studies" (Book Review),
Harvard Civil Rights-Civil liberties Law Review, ~2, 665ff; reviewing E. Schrecker (1987), No
Ivory Tower: McCarthyism and the Universities. Again one sense!! a difference from other schools
of legal theory. I can conceive of a positivist being told to abjure her beliefs on pain of dismissal,
but only in the same way that I can conceive of bacon on the wing.
88. See generally, (1984), 'Symposium: A Crifique of Rights', Texas Law Review, 62, 1363ff. For
the best discussion of socialiSt rights see T. Campbell ( 1983), The l.:eft and Rights: A Conceptual
Analysis of the Idea of Socialist Rights.
89. Gabel, 'The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves' in
'Symposium', Ibid. at 1563.
90. Freeman (1978), ''Legitimating Racial Discrimination Through Administrative Law: A Critical
Review of Supreme Court Doctrine', Minnesota Law Review, 62, at 1052-57.
91. See Sparer (1984), 'Fundamental Human Rights, Legal Entitlements and the Social Strugg!e: A
Friendly Critique of the Critical Legal Studies Movement', Stanford Law Review, 36, 509ff. Lynd,
'Communal Rights' in 'Symposium', supra note 88, at 1417: 'We need to work at the slow
transformation of rights rhetoric, at dereifying it, rather than simply junKing it'. Kennedy (1981),
'Critical Labor Law Theory: A Comment', Industrial Relations Law Journal, 4, 503, 506.
92. Tushnet, 'An Essay on Rights' in 'Symposium', supra note 88, at 1363.
93. For the most interesting recent critiques of the purported 'universalism' of liberal ideas in otP.er
areas, see Peller (1990), 'Race Consciousness', Duke Law Journal, 758 and Kennedy (1990),
'A Cultural Pluralist Case for Affirmative Action in tegal Acadeini.a', Duke Law Journal, 705.
94. See Carrington, 'Of Law and the River', supra note 30.
95. Compare Frank Michelman's early work which exercises considerable brilliance in pushing rights
discourse to its limits (and sometimes beyond) with his later work, which marks an implicit turning
away from rights thinking. Fbr the former see Micnelman (1973), 'In Pursuit of Constitutional
Welfare Rights: One View ofRawl'!!'Theory of Justice', University ofPennsylvania Law Review,
121, 682ff. For the latter, Michelman, 'Justification (and Justificability) of Law in a Contradictory
World' inNomos:Justificatlon,28, 71ff:ReprinledinJ.R. Pennock&J.W. Chapman(eds.)'; 1986.
96. J. Habermas (1986), Knowledge and Human Interests; 'The Scientization 'of Politics and Public
Opinion' and 'Technology and Science as Ideology' in Towards a Rational Society (1970), 62,
81; C. Mills (1959), The Sociological/mngination.
97. Baker (1975), 'The Ideology of the Economic Analysis of Law', Journa(of Philosophy and Public
Affairs, 5, 3ff.
98. Kelman (1979), 'Choice and Utility', Wisconsin Law Review, 769ff. M. Kelman (1987), A Guide
to Critical Legal Studies.
Critical
Studies
liii
Heller (1976), 'The Importance of Normative Decision-Making: The Limitations of Legal

Economics as a Basis for Liberal Jurisprudence', Wisconsin Law Review, 385ff.
Kennedy (1981), 'Cost-Benefit Analysis of Entitlement Problems; A Critique> Stanford Law
Review, 33, 387ff; cfMarkovits (1984), 'Duncan's Do-nots', Stanford Law ReVIew, 36, 1169ff.
Tushnet (1980), 'Post-Realist Legal Scholarship', Wisconsin Law Review, 1383ff.
Becker (1990), 'The State of Europe', Granta, 30, 133ff.
Part I
Legal Rules and Legal Reasoning
[1]
THE STRUCTURE OF
BLACKSTONE'S COMMENTARIES
DuNCAN KENNEDY
[T]he material relations of production of the capitalist epoch

only are what they are in combination with the forms in which
they are reflected in the pre-scientific and bourgeois-scientific
consciousness of the period; and they could not subsist in
reality without these fo.,:ms of consciousness. 1
INTRODUCTION
his article is a version of the first chapter of a book on the

history of American legal thought. It has two purposes. The
first is to provide an introduction to Blackstone's Commentaries
on the Laws of England, an important 18th century legal treatise
that all legal scholars have heard of but practically no one knows
anything about. The seconfl is to introduce the reader to a method
for tlnderstanding the political significance of,, legal thin~ing, ,a
method that might be called structuralist or phenomenological, or
neo-Marxist, or all three together.
I don't intend to provide any background ,information on
Blackstone, except to say that he published his trea,dse .in England
between 1765 and 1769, and that aside from Chancellor Kent's
Commentaries on the Laws of tl)e United States, published between 1820 and 1825, Blackstone's work is the only systematic attempt that has been made to present a theory of the whole common,
law system. It is the single most important source on English legal
thinking in the 18th century, and it has had as much (or more)
influence on American legal thought as it has had on British.
The method this study exemplifies is, like the Commentaries,
familiar in name but altogether unfamiliar in practice to most
American legal scholars. For this reason, I begin with a methodological excursion. As for the origins of the method, let me say only
Professor of Law, Harvard Law School. Copyright 1979, Duncan KennCdy.

This essay is dedicated to Stanley Sheldon, Edith Caudill and Edward Ryersqn. Numerous
colleagues and friends have commented on this and an earlier draft. I would like to thank
all of them, ahd especially Jerry Frug, Tom Green and Morty Horwitz, for their help.
Errors are mine alone.
l.
K. KoRSCH, MARXISM AND PHILOSOPHY
88-89 (F. Halliday trans. 1970).
209
210
1979]
BUFFALO LAW REVIEW
211
(Vol. 28
that I am trying to apply to legal thought techniques developed

over two centuries in what is sometimes called the "continental"
tradition of philosophy, social theory, history, psychology and anthropology.2 My approach owes a great deal to the work of Peter
Gabel 3 and Roberto Unger/ and to that of AI Katz, whose essay
in this issue of the Buffalo Law Review 5 has greatly influenced my
thinking.
Everything that I will have to say flows from (but is in no
sense logically entailed by) a premise about legal thinking. This
premise is that the activity of categorizing, analyzing, and explaining legal rules has a double motive. On the one hand, it is an
effort to discover the conditions of social justice. On the other, it
is ap attempt to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our
social world. In its ,first aspect, it is a utopian enterprise constituting, in E.P. Thompson's phrase, a "cultural achievement of universal sig~ificance." 6 In its second aspect, it has been (as a matter
of histori~al fact rather than of logical necessity) an instrument of
apology-an attempt to mystify both dominators and dominated
by convin~ing them of the "naturalness," the "freedom" and the
"rationality" of a condition of bondage. I will be concerned in
this paper witJ:t the second aspect-of denial and apology-but I
don't want to ~e understood to deny the first, utopian aspect.
From this perspective, Blackstone is important on three distinct grounds. First, he was a pivotal figure in the development
2. The works that have most influenced me are G. HEGEL, THE l'HILOSOPHY oF
"RIGHT (f. Knox trans. 1952); G. HEGEL, THE PHENOMENOLOGY OF MIND
Baillie trans.
1967); K. MARX, On the jewish Question, in EARLY WRITINGs (R. Livingstone & G. Benton
trans. 1975); 1 KARL MARX, CAPITAL (R. Fowkes trans. 1976); K. MARX, CRITIQUE OF THE
GoTHA PROGRAMME (1875); G. LuKACS, Rei{icalion and the Consciousness of the Proletariat,
in HISTORY AND CLASS CONSCIOUSNESS: STUDIES IN MARXIST DIALECTICS (R. Livingstone trans.
19il); G. KOHLER, GESTALT PSYCHOLOGY (1947); J. PIAGET, PLAY, DREAMS AND IMITATION IN
CHILDHOOD (C. Gattegno & F. Hodgson trans. 1962); C. LEVI-STRAUSS, THE SAVAGE MIND
(1966); K. MANNHEIM, IDEOLOGY AND UTOPIA: AN INTRODUCTION TO THE SOCIOLOGY m
KNOWLEDGE (1936); and H. MARCUSE, REASON AND REVOLL"TlON: HEGEL AND TilE RISE OF
SOCIAL THEORY (1941).
~ Gabel, Intention and St1ucture in Contractual Conditions: Oulliue of a Metl<ocl for
CrztiCal Legal Theory, 61 MINN. L. REv. 601 (1977); Gabel, Book Review, 91 HARV. L. REv.
302 (1978); P. Gabel, Reifi.cation in Legal Reasoning (unpublished ms. 1979).
4. R. UNGER, KNOWLEDGE AND POLITICS (1975); R. UNGER, LAW IN MODERN SoCIETY
u.
(1976).
5. Katz, Studies in Boundary Theory: Three Essays in Adjudication a11d Politics, 28

Bu.FF~LO L. REv. 383 (1?79). Studies in Boundary Theory: Part 1: Six Essays on Crime and
Cnnunal Law (unpublished ms. 1978) has especially influenced me. Although 1 do not
u~e his terminology~ this article is intended to be a "study in boundary theory" in txactl}
Ius sense.
'
6. E.P. TIIOMPSON, \\'HIGS AND Hur.;n:Rs: TIIE ORIGIN OF THE llLACK Acr 265 (1975).
of what I will call the liberal mode of American legal thought.

His work set out together, for the first time in English, all ~h~
theq1es that right to the present day characterize attempts to legitimate the status quo through doctrinal exegesis. Seco)ld, he presented these familiar arguments and categories a.s parts of a larger
structure that is quite unfamiliar to the modern, r~ader. By analyzing that stt::ucture, we can get a sense of the contmgency of our
accustomed 111odes of thought in approaching what s~em the most
elementary legal issues.
. .
Third, Blackstone is supremely unconvmcmg. Altho~gh h_e
made many contributions to t!le utopian enterprise of}egahty,_ h~~
Commentaries as a whole qmte patently attempt to naturalize
purely social phenomena. They ~estate as "freedom" what we see
as servitude. And they cast as ratiOnal order what we see as something like chaos. At least since Bentham's Fragment on G~vern
ment/ critics have linked these traits of the Commentanes to
Blackstone's desire to legitimate the legal status quo of ~he Engl~nd
of his day. Thus Blackstone serves both as a conyement startmg
point for the sub~tantive history of Ame_ri~an le~l th~ught a.nd_ ~s
a relatively easy object for the method of d1scover~~g h1dden pohucal intentions beneath the surface of legal expos1t1on.
PART ONE
METHODOLOGICAL PRELIMINARIES
What makes it so important to have an easy ~arget is tt:at ~~

is quite hard to state either the "painfully c?ntrad1ctory fe~lm?s
to which I have already referred or to explam how legal thmkmg
can effe<;tivcly "deny" them.
The Fundamental Contradiction

Here is an initial statement of the fundamental contradicton:
Most participants in A~erican legal c':lture believe that the g~al
of individual freedom 1s at the same t1me dependent on and m
compatible with the communal coercive action that is necessary
to achieve it. Others (family, friends, bureaucrats, cultural figures,
7. J. BENTHAM, A Co~!MENT ON THE COMMENTARIES: A CIUTICIS~l OF \\'ILLIAM BLACK..
STONE's CoMMENTAIUFS oN 11m LAWS oF ENGLAND (Everett cd. 1928). See also D. Bo01~sn~,
Tm: l\fvsn:RIOllS SCIENCE OF TIIF LW/ (1941); E. BARKF.R, ESSAYS IN GOVERN~Jr.NT !_0-:>3
(.i!d ed. 1960); Dicey, Blachstone's Commentaries, 4 Cambtidge L.J. 286 (1930).
212
BUFFALO LAW REVIEW
1979]
[Vol. 28
the s_tate) are necessary if we are to become persons at all-they

provide us the stuff of our selves and protect us in crucial ways
against destruction. Even when we seem to ourselves to be most
alone, others are with us, incorporated in us through processes of
language, cognition and feeling that are, simply as a matter of
biology, collective aspects of our individuality. Moreover, we are
not always alone. We sometimes experience fusion with others,
in groups of two or even two million, and it is a good rather than
a bad experience.
But at the same time that it forms and protects us, the universe of others (family, friendship, bureaucracy, culture, the state)
threatens us with annihilation and urges upon us forms of fusion
that are quite plainly bad rather than good. A friend can reduce
me to misery with a single look. Numberless conformities, large
and small abandonments of self to others, are the price of what
freedom we experience in society. And the price is a high one.
Through our existence as members of collectives, we impose on
others and have imposed on us hierarchical structures of power,
welfare, and access to enliglitenment that are illegitimate, whether
based on birth into a particular social class or on the accident of
genetic endowment.
The kicker is that the abolition of these illegitimate structur~s, the fashioning o~ an ;tnalienated collective existence, appears
to 1mply such a massive mc-r.ease of collective control over our
lives that it would defeat its purpose. Only collective force seems
capable of destroying the attitudes and institutions that collective
force has itself imposed. Coercion of the individual by the group
appears to be inextricably bound up with the liberation of that
same individual. If one accepts that collective norms weigh so
heavily in favor of the status quo that purely "voluntary" 'movement is inconceivable, then the only alternative is the assumption
of responsibility for the totalitarian domination of other peoples'
minds-for "forcing them to be free."
Even this understates the difficulty. It is not just that the
world of others is intractable. The very structures against which
we rebel are necessarily within us as well as outside of us. We are
implicated in what we would transform, and it in us. This critical
insight is not compatible with that sense of the purity of one's intention which ~eems .often to have animated the enterprise of remaking the social world. None of this renders political practice
213
impossible, or even problematic: we can ident~fy. oppression without having overcome the fundamental contrad1ct10n, and_ do so~e
thing against it. But it does mean proceeding on the bas1s of fa1th
and hope in humanity, without the assurances of reason.
The fundamental contradiction-that relations with others
are both necessary to and incompatible with our freedom-is not
only intense. It is also pervasive. First, it is an aspect of our experience of every form of social life. It arises in the relations of
lovers, .spouses, parents and children, neighbors, employers and
employees, trading partners, colleagues,. a?d so forth. Second,
within law, as law is commonly defined, 1t 1s not only an aspect,
but the very essence of every problem. There simply are n_o _legal
issues that do not involve directly the problem of the leg1t1mate
content of collective coercion, since there is by definition no l~gal
problem until someone has at least imagined that he migl~t. invoke the force of the state. And it is not just a matter of defimtwn.
The more sophisticated a person's legal thinking, regardless of her
political stance, the more likely she. is to ~elieve that all issues
within a doctrinal field reduce to a smgle d1lemma of the degree
of collective as opposed to individual self-determination that is ~p
propriate. And analyses of parti,cular fiel~~ tend themselves to collapse into a single analysis as soon as the thm~er attempts to understand together, say, free speech and econom1c due process, or contracts and torts.
, .
'
The History of the Contradiction (a)

The all-pervasiveness of the sense of contradiction is the endpoint (hy which I do not at all mean the "goal") o~ a long p:ocess
of historical change. It is very difficult to conceptualize that l,ustory.
I propose to begin with a shockingly crude model, ~n~ see w~~re
it will lead. Suppose that the fundamental contradiction has always" existed, in its present degree of intensity and pervasiveness.
We then need to accountfor the ob:vious fact that it has either not
been experienced at all, or not acknow~edged, by any of t~e succeeding generations of Western legal tlunkers between the ume of
the sophists and the very recen~ past. Let us suppo~e that the reason for this has been that durmg that whole penod there have
existed processes of mediation, or denial, that have functioned to
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BUFFALO LATV REV!ETV
[Vol. 28
hide or disguise it from those engaged in the enterprise of legal

thought.
Mechanisms of Denial: (a) Types of Legal Thinking

Here. is a prelimin~ry statement of how legal thinking can be
a mechamsm for de~ymg contradictions: Imagine a description
that portrays the makmg of decisions in our situation of contradictory feelings as involving a tension between conflicting values that
we m~st balance rationally. Such a description is untrue to our
expenence. Indeed, a person who so described the experience
might ~ell appear to be hiding from its reality. The bfand rhetoric
of tensiOn an~ balance is so clearly false that we suspect a person
who employs 1t of wanting to minimize or conceal the elements of
par~dox, stalerr:ate and desperation we experience when we try to
decide what kmd o( collective coercion is legitimate and what
illegitimate.
. There are at least two other modes for describing the situation that ~re eve~ mo~e patently untrue than balancing. The first
of these 1s funcuonahsm. In the functionalist mode we decide
which forms of coll~ctive action are legitimate by iden~ifying tasks
that supposedly must be performed in any so,cial organization. We
c~n the? explam, and either justify or criticize, the types of collec~Ive ~ctlon that actually- occur by asking how well they fit into the
Ideahzed schema of functions thus identified.
A second mode is sometimes called formalism, by which is
meant a system of thought that identifies some forms of collective
intervention, such as the defense of private property and the enforcement of contracts, with the protection of individual freedom.
This. i?ent~fication serves to legitimate some legal rules while
delegltlmatmg others (for example, minimum wacre
legislarion
0
"violates freedom of contract"). That is, formalism r eserhbles bal
ancing and functionalism in that it allows us to deny the contradictory state ?f. our feelings by asserting that there is a proper place
for collectiVIsm, and that that place can be determined by the rational analysis of the content of legal rules.
Mechanisms of Denial: (b) Categorical Schemes

W~ile. modes of legal reasoning are an important aspect of
legal thmkmg, they are no more and perhaps less important than
1979]
215
the structure of categories available at any given moment for classifying different incidents of collective coercion. It is impossible to
think about the legal system without some categorical scheme. We
simply cannot grasp the infinite multiplicity of particular instances
without abstractions. Further, the edifice of categories is a social
con~truction, carried on over centuries, which makes it possible to
kno1v: much more than we could know if we had to reinvent our
own abstractions in each generation. It is therefore a priceless
acquisition. On the other hand, all such schemes are lies. They
cabin and distort our immediate experience, and they do so systematically rather than randomly.
The very existence of historically legitimated doctrinal categories gives the law student, the teacher and the practitioner a false
sense of the orderliness of legal thought, of our practices and of
our reasons for those practices. But the particular schemes adopted
convey more particular falsehoods. The dichotomy of contract and
tort, for example, has for generations conveyed the message that
in the, "private sector," individuals freely structure their relationships so long as they obey a set of ground rules' th~t are enforced
by. the state but prescribed by elementary moral principles. The
segregation of r$!al property law fwm the rest of contract.,~nd tort
law tells us that both limitations on contractual freedom and instances of strict li~bility with respect to land are a historical anomaly. The distinction between public and private law replicates
the hidden message of tort versus contract: that the state stands
outside civil society and is not implicated in the hierarchical outcomes of private interaction.
The notion of "a mode of legal reasoning" ,and the notion of
"a categorical scheme" are not altogether distinct. Categorical
schemes are products of the activity of legal thinkers. When thinkers are creating them, they employ modes of reasoning. Thus a
thinker may find it necessary to justify the maintenance of a distinction between public and private law, and a particular choice
about where to place, say, administrative regulatio~. She will appeal to "the nature" of things, or to the "functions" of the categories, or to a "balancing test," depending on the mode of reasoning then in use. If lawyers consciously made and remade the categories to fit their purposes, there wouldn't be much point in
analyzing them apart from the reasoning process itself.
But even when we profe~s an extreme nominalism of this
kind, we cannot maintain it in practice. Categorical schemes have
J
I
I
10
216
BUFFALO LAW REVIEW
[Vol. 28
a life of their own. Most legal thinkers in any given period take
both the existing structure and myriad particular categorizations
for gr'!nted. They deploy their efforts at reasoning new situations
into the category that will lead to the outcome they desire. The
motives that underlie the structure as a whole are therefore likely
to be buried deep, if not altogether inaccessible. In periods when
there is little self-consciousness about the artificial character of all
categories, even a legal thinker who knows she is engaged in a
major effort to redefine the structure may have no idea how much
choice is implicit in her activity. For these reasqns, the study of
categorical schemes is particularly fertile ground for the method of
interpretation I am proposing.
.I
I
11
T.he History of the Contradiction (b)

Now let us return to our hypothesis about the history of legal
thought as the history of the fundamental contradiction. We left
off with the notion that previous generations did not experience or
did not acknowledge the contradiction because the forms of mediation hid it from them, or allowed them to deny it. We can conceptualize the process that led us to the present impasse as follows.
There have always been many different legal modes of mediation, many forms of legal reasoning, many categorical schemes.
Many modes coexist in a given period; different modes dominate
from pe-r:iod to period. The single constant has been the gradual
accretion of criticisms of each of the modes of mediation. The process of criticism has had two simultaneous tendencies: to reduce the
multiplicity of modes to a smaller and smaller number, and to
undermine the efficacy of the survivors in the very process of demonstrating their generality.
The participants did not experience this process as one of
descent into contradiction. Indeed, they experienced the activity
of discrediting most modes of mediation while developing the survivors into more and more powerful, general, and pervasive mechanisms for ordering the legal universe as enormously fulfilling. It
was unimaginable to them that the very process of abstraction that
maae generalization possible would lead us ultimately to lose the
ability to deny the contradiction.
I will use the term liberalism to describe the mode of mediation or denial that gradually killed off its rivals, before it finally
succpmbed to the problems it was designed to solve. Liberalism
was initially a revolutionary mode not of legal thought, but of
1979]
BLACKSTONE'S. COMMENTARIES
217
thinking about politics. 8 It became, through works like Blackstone's Commentaries, a mode of legal thought as well. The history
of legal thought in our culture is the history of the emergence of
this legal version of the liberal mode, its progressive abstraction
and generalization through the 19th century until it structured all
legal problems, and its final disintegration in the early 20th century.
I will give a series of definitions or descriptions of liberalism,
at various levels of abstraction, as the need arises in the discussion
of the Commentaries. For the momen~, I hope it is enough to
define it very roughly in terms of a .splitting of the universe of
others into two radically opposed imaginary entities. One of these
is "civil society," a t;ealm of free interaction between private individuals who are unthreatening to one another because the other
entity, "the state," fortes them to respect one another's rights. in
civil society, others are available for geod fusion as private individual respecters of rights; through the state, they are available
for good fusion as participant~ in the collective experience of enforcing rights. A person who lives the liberal mode can effectively
deny the fundamental contradiction.
The Apologetic Aspect of Legal Thought

Such a hypothesis about the history of the fundamental contradiction can provide us with a framework for the investigation
of a particular work, such as Blackstone's Commentaries. But there
is more to the enterprise of interpreting legal thought than the
history of mechanisms of denial or mediation. Denial or mediation
is not necessarily apologetic. The element of apology comes in be-
cause legal thought denies or mediates with a bias toward the
existing social and economic order. It asserts that we have overcome
the fundamental contraditt!on through our existing practices. Or
that we can achieve that blissful state through minor adjustments
of a -leJ:{al regime that is basically sound, and needs only a little
tinkering to make it perfect. Or that there are many and serious
flaws in the existing order that we can remedy by bringing our
tawdry practice into line at last with our noble (non-contradictory)
ideals.
8. T. HonUES, LEVIATHAN (Oxford ed. 1957); J. LOCKE, Two TREATISES 'op yOVERN
MF.NT (P. Las)ctt cd. 19u0); see C. B. MACPHERSON, THE POLITICAL THEORY OF PosSESSl\'11:
lNmvmuAusM: HonnEs ro LoCKE
(1962).
218
BUFFALO L'A W REVIEW
[Vol. 28
It i~ important to keep clearly in mind the lack of necessary

co?necuon between the task of mediation and the apologetic enterp.nse. For exampl:, a lot of "revolutionary Marxist theory" conSI~ts of. the dogmatic .de~ial of our contradictory feelings combined
With .vwl~nt denu~c~at10n of the status quo. 9 Seventeenth century
Enghshhberal poht1eal theory (Locke, Harrington, the Levelers)
wa~ a ~ode of mediation or denial, but it was also revolutionary.
It IS simply wrong to insist that because these bodies of thought
are. or on~e were :adical rather than apologetic, they must necessanly avmd the pitfalls of denial. By contrast, the "tragic view of
life" espoused by the leading critics of modernist culture claims
to accept contradiction. It is nonetheless apologetic for all of that. 10
The Connection Between Mediation and Apology
A complete account of legal thought would explain the contingent but historically determinate association between liberal
legalism as denial and liberal legalism as apology. It would get at
~he merger of the two if\tentions in the experience of legal thought
Itself. I would like to do this, hp.t it does not seem -possible to me,
at least for the moment. For the moment, I am content with some
rather vague slogans. The people doing legal thought have always
been memb~r~ of a ruling class. Implicit loyalty oaths have ~lways
been a ~onditlOn of admission to th~ inner circles of legality. The
enterpnse of merely understanding the legal order is not one likely
to be ~a~en up by a person radically opposed to the status quo.
~ppo.s1t1o~ to t?e status quo does not easily survive the kind of
Identlfic~~wn With the legal system that seems to be a psychological
precondltlon for really understanding it.
.In~tead .of trying to turn these ideas into a theory connecting
medtatwn With apology, I intend to sail a more modest tack. I will
show, first, ~ow Blackstone's mode of reasoning and his categorical
structur~s sim~l.taneously mediate an'd legitimate, that is, how they
become mtelhgible when seen as the products of mediating and
legitimating intentions.
Second, I will show that we can understand the evolution of
the specifically liberal mode of mediation as a consequence of attempts by people like Blackstone to use it to legitimate institutions
that seem at first blush inconsistent with it. In order to assimilate
9. See ge11erally K. KoRSCH, supra note 1.
10. E.g., E. L. TRILLING, SINCERITY AND AUTHENTICITY (1!171). Sec get~cral/y G.
RF..-\I.IS~I 1~ OUR TmE (J. l\lamlcr &: i'\. l\ian<ll'r trans. 1!171).
'I
I
I'
'
13
12
LUKA< '
1979)
219
existing English legal practices tothe liberal scheme of justification,_

he had both to reinterpret the institutions and to abstract and
generalize the liberal categories. In the process, the categories became more powerful. Legal thought became both more highly
integrated and more vulnerable should the liberal mode lose its
power of mediation.
Contrast with Other Methodologies

It may be helpful in understanding my method if I try to draw
a sharp contrast between it and the two alternatives that dominate
contemporary legal historiography. The first alternative is the
natural law approach pra'cticed in most law school classrooms. It
consists of analyzing the rationale of a decision to see if it "makes
sense." If it does, we move on to the next. If it does not, ,v-e attempt to formulate an ali:ernative rationale that satisfies us of the
rationality and justice of the outcome. If we carl construct no such
rationale, we conclude that the decisidn was wrong, propose a differe_nt outcome, and explain why it would be better. This !llethod
attempts to use the analysis of past cases 'to advance the enterprise
of discovering the requirements of justice in particular social circumstances.
My method is like the natural law method in that it requires
the analysis of the coherence of judicial explanations of outcomes.
It uses exactly the same critical techniques as the natural lawyers.
But the goal is neither art alternative rationale nor a crl.ticism of
the outcome. It is to discover not what should have been done,
but, first, the apologetic motive that the formal rationale was designed to disguise, ahd, second, the contribution of the reasoning
process to the creation and maintenance of the liberal mode of
mediation. Since the apologetic motive is one the judges could not
admit and still retain their legitimacy, the analysis makes no direct
contribution to the discovery and elaboration of principles of justice. The most it can do is put us on guard against implications of
the rationalizing process that would otherwise have remained unconscious.
The second alternative method is that of instrumental or
interest analysis, and it is common to most academic Marxist and
liberal historians. The goal of instrumental analysis is to show that
the conscious or unconscious motive of the judge was to further
some particular interest, either of the judge himself or of a group
with whom he identified. The point about interests is that they arc
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[Vol. 28
selfish, and that they need no further explanation. For example,

once it is clear that the purpose of the 19th century rule of caveat
emptor was to favor the merchant/capitalist class against,the masses
of agriculturalists and consumers, the instrumentalist rests his case.
The most conclusive evidence of motive, in his view, consists of
effects of decisions on the interests of social groups, with the character of the interests affected treated as largely self-evident to a
person with a cynical view of human nature. The instrumentalist
treats formal rationales of decisions as largely obfuscatory, except
when they inadvertently or naively refer to selfish aims.
My method resembles instrumentalism in that it is concerned
with hidden motives that the judges themselves would treat as
illegitimate if forced to confront them. But the motives that interest
me are those that lfe behind the forms of legal reasoning and
categorization, rather than those that animate the choice between
plaintiffs and defendants acting as stand-ins for social classes. This
is not to say that the latter kind of motives do not exist-it is their
very obyiopsness that distracts us from the deeper patterns I want
to elucidate. What I am after is the logic of obfuscation, rather than
the struggle of conflicting interests that gives it energy.
The motives that guide choices among patterns of rationalization a:r;e both less conscious and less particular than those on, which
the instrumentalists focus. They have to do with maintaining and
legi~imating the general (but biased) ground rules of class struggle
ratfier ~han with outcomes day to day or even decade to decade.
By looking closely at them, I hope to overcome what seems to me a
cripplipg instt:umentalist e~or: that of attributing so much importance to particular outcome~ within the framework that the
framework itself becomes invisible. The blanking out of the framework turns instrumental critical thought itself into a form of apology, becaus~ it denies the current 1eality in our own thinking of
t?e c~ntradictions it is happy to recognize in particular past decisiOns.
Some Disclaimers
My focus on interpreting the larger framework as simultaneous mediation and legitimation means that what I have to say is
descriptive, and descriptive only of thought. It means ignoring the
question of what brings a legal consciousness into being, what
causes it to change, and what effect it has on the actions o those
who live it. My only justification for these omissions is that we need
1979]
221
to understand far more than we now do about the content and

the internal structure of legal thought before we can hope to link
it in any convincing way to other aspects of social, political or
economic life. There are dangers to deferring the task, but I think
them well worth risking.
Given this limitation of focus, it would be a delusion to think
that the study of the history and prehistory of our contradictory
feelings can resolve the contradiction, provide a basis for political
action, or even help us in the task of formulating and reformulating
our goal. Even if we could resolve the contradiction at the level of
theory, we would still be subject to its influence in practice. The
examples of Stalinism and fascism have a force on its behalf greater
than that of any body of abstract speculations. The same is true
of the commonplace that existing bureaucracies, ostensibly under
popular control, develop and pursue interests incompatible with
their public purposes. And it is important to remember that, even
on the level of thought, legal ideology is only a small, though not
insignificant, part of the total complex of ideas that seem to render
egalitarian socialism a utopia.
The enterprise thus appears twice defeated before it is begun:
we cannot resolve the contradiction within legal theory, and even
if we could, the accomplishment would be of limited practical importance. Yet it may nonetheless be worth undertaking. It is true
that the categories of individual and collective, and freedom and
power, represent an insuperable contradiction wi_thin ou: expe:ience. But it is also true that we embrace, generahze and mtens1fy
the contradiction by accepting it uncritically as part of the nature
of things. To some extent, we are the victims of our m~n reification rather than of our historical circumstances. To th1s extent,
"thinking makes it so." The task of criticism is to demys_tify o~r
thinkinrr by confronting us with the fact that the contrad1ct1on IS
a historical artifact. It is no more immortal than is the society
that created and sustains it. Understanding this is not salvation,
but it is a help.
[2]
REIFICATION IN LEGAL
R~ASONING
Peter Gabel
Legal reasoning)s an inherently repressive form of interpretive thought

which, limits our comprehension of the social \YOrld and its possibilities.'
This interpretive thought emerges within sonsciousness at moments of
uncertainty about the legitimacy of the concrete world within which we
find ourselves, and its function is to institutionalize-with the help of such
overpowering psychological symbols as robed judges, quasi-ecclesiastical
schools, the Profession, an,d the Tribunal-the boundaries of a legitimate
rationality. I! is therefore incorrect to say, as does the instrumentalist,
that legal rules and principles directly serve the interest:; of the dominant
class by bringing about certain consequences in the socioeconomic order.
Legal outcomes have only the most marginal effect on the movement of
socioeconomic processes and social actors who have been conditioned to
accept the apparent necessity of these processes do not require anything
so abstract as "legal rul,es" to shape and direct their daily conduct. It is
closer to the truth to say 'that it is action which has an "instrumental"
Research in Law and Sociology, Volume 3, 'pages 25-51.
Copyright 1980 by JAI Press Inc.
All rights of reproduction in any form reserved.
ISBN: o-89232-186-5
25
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PETER GABEL
effect on legal thought, as social actors of every class seek to legitimate to

themselves the experiential world within which they come to know themselves and their relations with others, under definite historical conditions.
This is not to deny lhe reality of class domination; it only emphasizes
that legal domination arises within the consciousness of every person as a
sort of legitimating repression, much like what is called a "resistance" in
psychoanalysis. Legal thought originates, of course, within the consciousness of the dominant class because it is in this class's interest to
bring it into being, but it is accepted and interiorized by everyone because
of the traumatic absence of connectedness that would otherwise erupt
into awareness. This is why the legal form becomes "fetishized'' as
Balbus (1977, p. 582) has put it: people "believe in" the legal order
because the legal order substitutes an Harmonious abstract world for the
concrete alienation that characterizes their lived experience. Thus, while
legal thought represses. it also reassures; it is, so to speak, the s~perego
of the public self at the level of social interpretation.
The character of this repressive thought is accurately described by the
word reification." which is properly understood as a certain sort of
distortion of meaning that occurs within communication. This distortion
is sometimes called the"fallacy of misplaced concreteness" because
when we "reify." we draw an abstraction from a concrete milieu and then
mistake the abstraction for the concrete. (An example is the well-known
expression "law is a means of social control," which suggests that "the
law" is substantial, like a fence.) The "misplaced-concreteness" characterization is descriptively accurate, but it lays insufficient emphasis on
the intersubjective and paradoxical' meaning of reified communication.
For in reification we do not simply make a kind of private error about the
true nature of what we are talking about; we participate in an unconscious
conspiracy with others whereby everyone knows of the fallacy, and yet
denies that the fallacy exists. Mo're specifically, in a reified communication the speaker: (I) mi~understands by asserting that an abstraction is
concr~te; (2) understands that he misunderstands or knows that the communication is "false"; and (3) denies both to himself and to the listener
that he knows either of these things by the implied assertion that the
communication is "true," or concrete. Thus, reification is not simply a
form of distort_ion, but also a form of unconscious coercion which, on the
one hand, separates ~he communicated or socially apparent reality from
the reality of experiettce and, on the other hand, denies that this separation is taking place. The knowledge of the truth is both repressed and
"contained in" the distorted communication simultaneously.
An example relevant to the developll}el.lt of "!ega! reification" can be
found in any first-grade classroom. It is 8:29 and children are playing,
throwing food, and generally engaging in relatively undistorted com-
Reification in Legal Reasoning
27
munication. At 8:30; the teacher (who is replacing the father and who, in
later years, will be replaced by the judge) calls the class to attention: it is
time for the "pledge of allegiance." All face front, aiL suffer the .same
social rupture and privation, all fix their eyes on a striped piece of cloth.
As they drone on, having "not the slightest comprehension of the content
of what they are saying, they are nonetheless learning the sort of distorted
or reified communication that is expressed in the legal form. They are
l~aming, in other words, that they are all abstract "citizens'' of an abstract "United States of America," that there exists "libet;ty and justice
for all." and so forth-not from the content of the words, bt.tt from the
ritual which forbids any rebellion. Gradually, they will come to accept
theseabstractions as destriptive of a concrete truth because of the repressive and conspiratorial way that these ideas have been communicated
(each senses that all the others "believe in" the words and therefore they
must be true).~ and once this acceptance occurs, any access to the paradbxically .fergotten memory that these are mere, abstractions will be
sealed off. And 'Once the abstractions are reified, they can no longer be
criticized because they signify a false concrete.
And yet this false concrete that emerges within reified communication
is not merely a conception of reality, not merely an "ideological representation; the pledge of allegiance is itself a living sequence during
which a ritual of the Other is enacted through everyone. Each child enacts
a humility, as does the teacher. who is merely playing the role of sovereign: each draws the act down upon hirpself: each institutes in every
gesture (even in' the modulation of the vocal chords) an obedience to "a
presence that is everywhere elsewhere"" (Laing, 1967, p. 84), such that
the represented world is also realized in the body, such that the social
body of a collectivity becomes the expression of a gap that gives reality
the feel of pseudo<-reality. in which each movement is lived in the as-if.
The terrible truttr of reification is that it is alive within each of us as the
haunted embodiment of an alienated desire, such that representational
!communication" is itself the expression of an alienated communion in
which everyone is other to himself, knows this, and can do nothing. or
almost nothing, about it. And because appearance floods reality in this
way, intimating a "reality" that is already an absence to itself. it becomes
impossible to divorce the false consciousness that signifies a false concrete from the false concrete itself. There is a dim and intuiti~e comprehension that something is very wrong, but this comprehensionis the only
trace of itself, like the "other side" o( a mobius strip.
In this paper, I want to investigate the way that the alienated communion 'Of a grbup "legalizes" itself in representational thought. MY discussion of alienation will be limited to a brief introductory description of
the organization of groups within capitalism, and of the way in which
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PETER GABEL
living within these groups feels in many ways like the way children feel
when they are "passivized" by the pledge of allegiance. The better part of
the essay describes the way that "the law" emerges within our alienated
culture as a kind of quasi-religious belief-system which simultaneously
compensates for our feelings of loss within these alienated groups and
conceals these feelings from us.
I. LAW AS A DENIAL OF A COLLECTIVE FEELING

OF ILLEGITIMACY, AND AN AFFIRMATION OF
THE LAW-LIKE NATURE OF THE NORMAL
I take it as given at the outset of this essay that human relationships within
contemporary capitalism are characterized by a traumatic absence of
connectedness that does not wish to become conscious of itself. The
source of this absence of connectedness is the passivity, impotence. and
isolation generated by the structure of groups. as those groups are themselves organized by the movement of capital. Within these groups. no one
is normally aware of his or her sense of unconnectedness, passivity.
impotence, and isolation, because this felt reality is denied by the socially
communicated reality. Each person denies to the other that he or she is
suffering, because this collective denial has been made a condition of
what social connection there is. One cannot assert that the pledge of
allegiance is insane and still remain "with" one's friends and family-so
we forget that this pledging is insane and reinforce the collective coercion.
Within these alien collectivities, each person experiences himself as a
thing-like function Of "the system, .. understood as the semi-autonomous
structure which constitutes the group's inertia. Each person experiences
himself this way because each person is recognized in this way by e'(eryone else, and human beings are such that they experience themselves as
they are recognized (Hegel, 1967). Thus, a "smSlll businessman" experiences himself as a "small businessman, .. a secretary" as fl "secretary, ..
a "child" as a "child ... These role-experiences are thing-like in th,at each
is subject to rigid determinations within the group's socially defined and
socially communicated structure. Thus, within an Ame,rjcan family. a
child must experience himself as a child because he is treated as a child
within the family system which constitutes each of its subjects. Yet to say
that each person experiences himself as thing-/ike is to express the meaning of alienation: each actor is passivized within a role that denies,him
recognition as a connected, active, potentiated, and intersubjettive person. One is (lever, or almost never, a person; instead, one is successively
a "husband," "bus passenger, .. "small businessman," "consumer, and
so on (cf., Laing, 1967).
The experiential starting point for understanding the function of "the
29
Jaw" in this milieu is to tecognize, to sense, that this thing-like quality

that pervades each of these groups is felt as il/e~itirrz_ate. ~ve.n as ~e are
passivized into imprisoning roles, and even as th1s re1ficat10n IS demed by
each of us to the other, there is a collective tendency to explode th~ w~o.le
thing. This is true within the smallest sub-group (two peo'ple talkmg trt.a
room), and it is true within the totality within whi~h each sub-group IS
situated. Although each sub-group does have a sem1-a~tonomy ~ro~ the
entire group (from "capitalism"), it is nonetheless Situated .wtt~m t?e
living totality thatis capitalism, and in fact each sub-group ts gtven tts
fundamental determination from the totalizing effect of the movement ~f
capital. Thus, one cannot discover the final intell.igibility of the way dencal workers chat in the halls, or the way busmessmen ex~o~nd. over
lunch, without situating each tone and gesture within the orgamzat1on ~f
the entire human group. The clerical workers secret themselves from thetr
bosses, and this is what it means to move into the hall.and "gossip.~".The
bosses talk too loud at lunch in order to reinstitute thetr nervous pnvtlege
to do so. Each "alienation" is expressive of the totalizing moveme~t of.a?
internal class-struggle, and this class-struggle as a whole is felt as tlle~ttt
mate. because each person is able to experien~e'himse~ ~nly.~s thm~
like, as passivized within a role. And because th1s sense of tllegtttmacy .~s
always threatening to erupt into awareness, there is a n~ed for '.'the lqw.
The function of ".the law" is to give each of us the 1mpress10n that the
system operates according to a normative l~w. The l~w is a ~eni~l .. at the
level of social interpretation, of our collecttve expenence of tllegtttmacy.
Through the law we tell ourselves, through the collective terror'and coercion that I have described, that what is, ought to be-that the system
follows a law. This profound tautology expresses what I mean when I say
that the function of law is legitimation.
II. THE PHENOMENOLOGY OF THE

LEGAL OPINION
When I say that the law represents the system as if th~ system follo.we~ a
normative law, I mean that the law is an .instance of the ~~stem thmkmg
itself the word "thinking'' being use'd in an active, transtttve sense (cf..
Sartr~. 1976). When a judge engages in legal re~s?ning, .he. is, of course, a
person who is thinking. But he is a person passtvtzed wt~hma role. fulfilling what is often called "the judicial function, .. and hts thought corresponds itself to the movement of the system as a whole. Preci.sely to tb~~
extent that the "small businessman" has become a "small busmessman,
the "secretar-y" a "Secretary, .. and so on-p,recisely '.that i~, to the ~x
tent that intersubjectivity has been reduced to a senes of mterlockmg
roles and functions-to that extent .the" judge's legitimating thought be-
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PETER GABEL
31
situation is "like" another. The process of recognizing similarity or difference between two fact-situations is not a matter of'empirically investigating two collections of data, but rather of "recogniting" whether the
two situations reveal the same cultural m~aning. One could say that the
judge "has a feeling" about each situation ana their immanent relationship to one another (a feeling we ordinarily call '"common sense''), an'tl he
applies this feeling to them both, deciding whether the same law applies to
them. It is only on the basis of this feeling or "sense of the fac1s" that th~
judge is able to reason by analogy, and it is o11ly because this feeling is
shared by the entire culture- that the judge s sense of analogy is accepted
as legitimate by the culture within which he is allowed to judge.
On the basis of these two a priori epistemological features of legal
reasoning, we can say that the first movement of the judge's consciousness is the apprehension of the entire social field as .a synthetic activity
that moves like a thing; or, in other words. he has a sense of the whole
culture all at once that he passivizes into the movement of a quasi-bbject,
such that each discrete situation of facts reveal!i itself. to his mirid a~ainst
the background of the total .. factual" context from which the law has
emerged. To take a modem example showing this. suppose that' John's
car and. Mary's car are involved in an accident. John sues Mary for
violation of tort law. In order to decide the case, the judge must re-experience the event as a passivized situation of "facts" (John and Mary
become abstract "parties," their jallopies become abstract "instrumentalities"), a1_1d he must decide by, a process of immanent recognition
whether this fact-situation is like others from which the law of torts has
emerged and to which it applies. He can do this only through his immanent grasp of the total factual context within which each accitlent has a
cultural significance (a' context partially revealed in such concepts as
ownership. speeding. insurance, braking, etc., all o~which the judge must
comprehend pre-conceptually in order- to recognize '"likeness" among
facts). And when I say that the judge grasps this tOtal factual context as a
"quasi-object," I mean that he grasps the totality in terms of its nor.mal
functioning as a system, or in other words as a kind of passive activity
(Sartre, 1976) conforming to our shared common sense of the world as it
is. This "common sense of the world as it is" is quite simply thesocially
communicated reality of advanced capitalism as a synthetic system of
external relations, 'or to put this more precisely. as a synthetic. system of
intersubjective relations that have been mt:tated, through alienation. into
relations of interlocking roles and functions.
This sense of the normal movement of the total .. factual" context,
without which it would be impossible to apply the law to any discrete
situation, has been interiorized by the judge during tile course of his
conditioning. It is a dialectical common-knowledge or common-sense that
comes a sort of carapace which fits itself over those roles in order to think
them legitimatively. In other words, we might say that it is capital that
engages in legal reasoning through the judge, precisely because it is capital which totalizes the objectified interpersonal relations which legal
reasoning interprets.3 One could say that the judge is dissociated or
"decentered" from his own subjectivity by virtue of his own alienation,
and so he is reduced to performing a certain "thinking function" whereby
he represents what is as if it were "legal."
The development of legal thought within the judge can be described in
terms of three movements of his consciousness. These movements are:
(I) the apprehension of the concrete as the synthetic and thing-like
process that it in fact is~ (2) the taking-for-granted of the apprehended
concrete as what I will call a "presupposed norm"; and (3) the generation
of a conceptual analysis that covertly (or "unconsciously") embodies this
norm as its synthetic underpinning. I will describe this process in some
phenomenological detail. using examples wherever possible to make the
description more understandable.
A. The Apprehension of the System as a Whole as a Syntbetic

and Thing-like Process
Legal reasoning is an application of what is ordinarily called the scientific method to the realm of human interaction. Through a process of
induction that is called "reasoning by analogy," certain perceived similarities in a series of. "fact-situations" provide the basis {or an abstract
law which is given the form of an abstract rule or principle. This abstract
law is then applied to other "fact-situations" through a deductive
thought-process known as applying the law to the facts. When a factsituation does not clearly come within a particular rule or principle. the
legal thinker must again reason by analogy in order to decide whether the
rule or princ;iple should btf applied to it. He or she may conclude that the
law does not apply. or that it does apply, or that the raw should apply. in
which case the rule rhay be modified so as to "cover" the fact-situation in
question. This is obviously a highly formalized description of legal reasoning, but it is accurate enough for my purpose here.4
There are two epistemological features of this thought-process which
must be emphasized at the outset. First of all, legal reasoning requires an
a priori "passivization" of human situations, such that a law may be
drawn from them and 'applied to them interchangeably. Each situation
appears as a "set of facts" which can be compared with analogical interchangeability to any other set of facts in order to determine whether the
two situations reveal the same abstract legal features (comract, tort,
crime, etc.}. Second. each situation is imbued, a priori, with a certain
cultural meaning, such that it is possible to know a priori whether one
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PETER GABEL
each of us possesses by virtue of having been raised within the same

culture, as that culture is mediated through concretely experienced social
collectives, such as the family, the school, and the workplace, and
through social collectives that are experienced more abstractly, such as
ones social class and the media. And this common-knowledge or common-sense is itself alienated to the extent that _these collectives which
communicate the .. real" through terror and coercion are themselves
alienated reciprocities, reciprocities passivized within roles that bear a
functional relationship to the system's total functioning. Thus, the judge
as a child .. identifies with the father, to use the familiar Freudian vocabulary, meaning that he grasps himself as other-for-father through the
father's recognition of him as my child." But the father is himself a
member of a social class that bears a functional relationship to the intersubjective totality, and the father embodies this class within his own self
as what Sartre calls his "class being ( 1976, p. 228) (he is "like"' other
fathers within the class and share. their point of view to the extent they
share tqe same practical and functional relationship to the whole). And so
in "identifying with the father. the judge interiorizes his class which is
its.elf defined and constituted as the collective interior negation of the
class against which it struggles, within an intersubjective totality that is
given its organization by certain determinate economic pressures. Thus. it
is accurate to say that the judge knows himself and is "'self-conscious"' by
virtue of his knowledge of the whole. He has what one might call an
historical sense of the normal that must be a common-sense among all
those to whom the same law applies.
The pernicious consequence of this first movement of the judge's
consciousness is that it. reifies the world as it is. Each discrete "factsituation .. is apprehended in relation to a total context that is experienced
as factual a priori. The sense of illegitimacy that everyone feels in response to the system~s normal functioning, and in response to the passivizing violence that thisnormal functioning imposes on our subjectivity,
is denied at the outset by the epistemological assertion that what is. is
inevitable. universal, timeless: the facts of life. And this is not all. The act
of factifying or reifying the real world" also has the consequence of
de.nying that this world is contingent. that it has been created by human
beings. and that it can be changed by human beings. In precisely the same
way that the natural scientist "reifies nature" by treating the physical
world as an object, so the judge as a "legitimation scientist" reifies the
social world as if it too were an object, immutably moving according to its
own intemal dynamic. In his very way of knowing ttie social world, the
judge represents it as natural. and it is precisely his intention to show, in
the manner of the natural scientist. that the social world follows certain
laws.
I
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B-. The Apprehension of the Social Field as a "Presupposed Nann"

When the judge apprehends. a "fact-situation" in order to apply the law
to it, he does so because a "disequilibration" has arisen within the system.s The normal way of describing this disequilibration is to say that a
dispute has arisen between two people, but from the point of view of the
judge's consciousness, this dispute appears to him as an objective problem-as a sort of .. breakdown" in the normal movement of the social
field. The real situation giving rise to the dispute. has occurred in time. and
the judge re-experiences this real and temporal situation as the movement
of animated facts which must be "put right" through the mediation of his
legal freasoning. This is what it means to say that the subjectivelyexperienced dispute appears to him as an objective disequilibration between objectified "parties" within the system as a whole. To return to my
example of the auto accident, John and Mary are engaged in an argument
over money, hurt pride, and so forth; the judge .. on the other hand. is
engaged in an analysis of facts to which the law of torts must be applied.
When the judge apprehends the socialfield as a synthetic and thing-like
process, therefore, he does so according to an equilibrative tendency
imm-anent to the organization of the facts. He recognizes and evaluates
the disequilibration by its relation to what might be called a normal equilibration. For example. an automobile accident gives rise to a justiciable
controversy only within a total context of the normal movement of automobiles, as that normal movement embodies a set of cultural meanings
internalized by everyone in the culture. If the normal movement of automobiles corresponded to the normal movement of bumper cars in an
amusement park, then it would be likely that an "accident" would not
gi.ve rise to a dispute and would not be experienced objectively as a
disequilibration. There would be no cause of action because an accident
would be entirely normal.
As I have already emphasized, the normal equilibration expressed in
the movement of each discrete fact-situation is necessarily also an expression of the norrpal equilibration of the system as a whole. Because the
social field as a whole is internalized by every social actor within the
culture and conditions his sense of possible action from within his role
(which we can describe as the limit that commorr-sense places upon the
realization of his alienated self-interest). each discrete movement of the
social field occurs in a relation of synthetic heterogeneity with every other
movement: each movement is both a complete expression of the system
as a whole and a partial constituent of it, like the relation of an arc to the
entire circle (Gabel, 1977; Sartre, 1976). Thus, the normal movement of
an automobile today expresses the way people drive within advanced
capitalism, and the entire culture of advanced capitalism is expressed
within its movement: each driver knows via the common-sense that she is
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Rei[icati9n in Legal Reasoning
PETER GABEL
an "insured owner" who must get to work by a certain time and who has
left home at an hour which takes account of all the other expectable
drivers. the likelihood of being arrested by the available number of policemen as that has been affected by recent property tax cuts, the degree of
bodily coordination among drivers as that has been affected by the decline
in athletic participation in the schools. owing to the decline in available
open space, and so on and so on. And the judge applies his common-sense
comprehension of the relation between the normal equilibration of these
facts before him and the normal-equilibration of the entire culture in his
search for a legal resolution of the case.
Since this equilibrative tendency derives from the totalizing influence
of the movement of capital upon the movement of intersubjective action.
it is evident that the judge is preparing to make himself the legitimating
voice of capital. His objective is precisely to capitalize on the tendency
toward equilibration that sustains the system and reinstate tbis equilibration in the face of a "dispute." The necessity for this reinstatement
derives from the fact that the system's equilibrative tendency moves in a
delicate balance. Since each of us senses the alienation and illegitimacy of
our normal functioning, each dispute contains the seeds of an "irrational
breakdown." There is a danger that real feeling, like irrational anger,
may erupt through our passivized and repressed ego.s .. creating a dangerous reflection on our collective-individual impotence ("fuck this
bullshit"). In other words, the totality of disputes poses the danger of
an oppositional and liberatory consciousness. In order to perform the
passivizing judicial function, the judge must seize upon. the dispute as a
factual disequilibration, re-experience this disequilibration in relation to
the equilibrative tendency of the system as it expresses itself through
these facts, and then state, this equilibration in the form of a law that
"controls" the outcome of the case.
If these ideas seem difficult to grasp in the abstract. consider the concrete predicament that a law re.view editorfaces in deciding whether to
print "fuck this bullshit" in a law-review article. A law review is a movement of. worked matter that exists in time (it is printed, published, dis.tributed, read, and placed on a shelf). Once it is distributed, it obtains its
cultural meaning through the shared experience of a dispersed collective-that is, through those who experience this worked matter as a
"law review." It places them. in a relation of. reciprocal equilibration, to
the extent that each reader experiences himself in a passiv.ized. role that
expresses the collective's normal functioning (as a "law professor,"
"lawyer," etc.). By "reciprocal equilibration" I mean that eacti reader,
as an "other lawyer" to each of the other lawyers, conforms his response
to the response he attributes to the others, according to a "lawyer norm"
that has come to them from the outside, from the class relations that have
created their collective function (objectively speaking) or role (subjec-
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tively speaking). In this context, ''fuck this bullsl)it" is a disequilibration

precjsely to the extent that ea,ch reader, in imagining how all the others
are responding to it. experiences mild shock. This is not. how law reviews
are supposed to sound if "we lawye(s" are to sustain our lofty analytical
tone. And in a way, the entire system is thrown into question by the
de-reification of law-review language, since lawyers, as a cog" within
the system s equilibration, are partially constituted by their language in
their law reviews. If law reviews don't have to seem like law reviews,
perhaps nothing has to seem like anything.
In qiscovering a sentence like this in a manus~ript from an author. the
editor is forced into a position similar to that of the judge. As an "other"
to all of the others that are synthetically.constituted by the movement of
the law review as worked matter. he knows- that his function within the
dispersed collective is tp make ~ure that the law review follows its law. It
must read normally. If he intends to act in accordance with his interest. he
must enjoin the publication of "fuck this bullshit" if he finds, through
"~easoning by analogy." that the phrase is svft!ciently disruptive to the
noripal movement of its factual context. Considering the expectability,
within this equilibration, of an author saying what she pleases and of a
student-editor being so!Uewhat deferential, he may or may not decide that
an injunctive remedy is appropriate. But his method of deciding requ_ires
precisely an apprehension of the system as a synthetic and thing-like
process. and an equiJibrative evaluation. Were he to publish an opinion. it
would legitimate the law review. whatever the outcome.
Since the system s equilibrative tendency is taken f~r granJed epistemologically in the judge's organization of the facts, l will call it a "pre~up
posec;i norm. What is presupposed is the inevitability of the system as it
is in its normal movement.
C. The Generation of a Conceptual Analysis Tl!at Embodies the
Presupposed Norm
Thus far I have described only the synthetic field from which the law is
drawn and to which it applies. This synthetic field is revealed in the
judge's reasoning by analogy. It represent~ a reification of the social
world as it is. because it presupposes the social world as an epistemological a priori.
The next movement pf the judge s consciousness is the generation of a
conceptual analysis that will embody what has been presupposed. This
movement is the actual "application of the law." It is of central importance to the activity of legitimation because it creates the appearance that
the social order is a consequence of the legal order. The judge, as a
member of a ruling elite, disappears from view; he is merely the conduit of
certain abstract rules and principles that "govern the affairs of men.
The activity of conceptual analysis requires both the derivation of con-
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PETER GABEL
meaningful to the room. Perhaps it would be simpler to say that the

reification of the concept gives the impression that the thing itself is a
subject, instead of being the object of a-shared temporal experience that is
merely "captured" or signified conceptually .6
The significance of this reification of the concept in its ordinary usage is
that an historically contingent social norm is transformed into a timeless
fact about the world. Through our use of normal sentences, we collectively fail to recognize that the thing before us was fashioned by human
labor in order to perform a social function under historically determinate
material conditions; instead, through the repression that the reification of
the concept forces on our awareness, we give ourselves the' impression
that this function is simply "what the thing does ... And if we remember
that the set of cultural meanings seized with the concept "lamp" obtains
its meaningfulness only in relation to the total set of meanings expressed
in the culture's normal functioning, we can see that through language
taken as a whole we generate a disjunction between the sociallycommunicated reality and the reality of experience, such that reality as a
whole is signified as thing-like in its movement. This seems to me to be
the phenomenological-linguistic basis of what Marx called "commodityfetishism" (Marx, 1967, p. 7:!).
In our concepts, we reify not only things; we also reify persons precisely to the degree that they are passivized within roles expresSing their
function. Consider the concept "secretary," an abstract term that freezes
the cultural meaning of certain functions performed by a mfmber of
human beings. When we say, "she is a secretary," we equate a being with
her function. If we say, a good secretary types 60 words a minute, .. we
attrioute'a normative behavior to the concretized concept: It is like saying
a good function types 60 words per minute," but we fail to recognite this
because the function has become a presupposed "fact'" about "whaf
secretaries do ... Her function has been reified as the factual activity of the
concept which envelopes her. And, of course, her functional activity, as it
is determined for her by the technology of the typewriter, the available
supply of secretarial labor and so forth, bears a synthetic relation to
"what manufacturers do," :what welfare recipients do"-in short, to the
reified social field in its totality.
If we now return to the judge whose function it is to construct the law of
this social field, we can more easily see how he will embody. the presupposed norm in a conceptual analysis of the fact-situation. He will abstract
legitimating concepts from the presupposed norm and then reify them. so
that it will appear that the functioning of the system .is simply the factual
activity of the legitimating concepts, thereby representing the system
its'elf as legitimate a priori.
cepts from the synthetic field and their application through the method of
logical deduction. These two operations are in reality unified in the temporal reflection that is called "legal thinking''; the concepts are always in
use. like the material world from which they are abstracted. But, for
convenience, I will address each operation separately here.
1. The Reification of Concepts in Ordinary Language

The word "concept" means "seize with." That which is "seized" with
a concept is a social experience of an object in the world as the object
reveals itself within particular socio-historical conditions. Our social experience of the world is first of all temporal, by which I mean that we
experience everything ih time toward the realization of practical and
meaningful intentions that have been organized or shaped by our conditioning, by our past way of learning the nature of the world 'through our
relations with others. We do not experience the world first of all with
concepts, because concepts are atemporal (Sartre, 1977). It is rather the
case that our concepts derive from practical experience and permit us to
"freeze" this experience in order to signify the experience to ourselves
and to others.
For example, near me sits something that I experience first of all as
towards-lighting-up-a-darkness. Everyone in my culture also experiences
this thing this way. Together we seize this shared experience with the
concept "lamp ... The concept "lamp" is an abstraction from our shared
practical experience of this thing, which signifies the thing's normal function for us. In'the case of the concept "lamp, .. it is perhaps most accurate
to say that the concept signifies a thing which functions towards-lightingup-a-darkness-to-a-moderate-level. If a thing functions toward lightingup-a-darkness-very-brightly, we might conceptualize the thing as a
"beacon" and not as a "lamp."
There is nothing troubling about a concept as long as its abstract nature
is remembered by those who use it. But in the ordinary language that has
emerged within our culture, concepts are concretized. For example. when
we say "the lamp lights up the room," we attribute to the abstraction the
power to perform the function from which it was derived. The concept
"lamp" means towards-lighting-up-moderately; it was abstracted from
our shared experience of a thing's function-for-us. If we now say ''the
lamp lights up" something, we confuse the concept with the concrete
usable thing whose function-for-us we seized with'the concept. The abstract concept "lamp," which originated as a shorthand for our shared
practical experience of a thing, has been "falsely concretized' or reified,
such that ~ormal lightness seems to be created by it. rather than the
converse. According to the grammar of our language. the concept "lamp ..
has become the "subject" of the sentence, as if it were doing something
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2. The Reification of Legal Concepts as a Way of Legitimating

the Status-quo
In order to grasp the way that the judge derives legal concepts from his
apprehension of the social field, we must remember that his intention is to
adjudicate a dispute in such a way that the system will be restored to a
normal and legitimated equilibration in the realm of thought. He has. in
other words, an unconscious legitimating intention and it is towardslegitimating-the-system that he has apprehended the events leading up to
the dispute as a disequilibrated fact-situation in the first place. In order
now to conceptualize the fact-situation "legally," he must abstract legitimating concepts from the normal movement of the facts, cpncretize the
abstractions, and then re-describe the facts with the aid of these abstractions. This is exactly what it means to apply the law to the facts. Simultaneously. the facts become lawful and the law becomes factual.
Since the law as a generality is supposed to apply to everyone in "the
society," the primary legal abstractions drawn from any fact-situation
must be universal. Within the operational reasoning of the physical world
(the laws of physics), an example of such a universal abstraction is the
concept "particle" because it signifies the movement of anything whatsoever, to the extent that the movement of the whole of the material world
is apprehended as being made up of parts. An atom. a photon. an electron
-all of these can be abstracted to higher levels of universality py the
concept "pal;ticle." Within legal reasoning as it is applied to the social
world, the equivalent to this concept is the concept "party." The bailee,
.the tort-feasor, the executor, the trustee-all of these abstractions share
the universal abstract feature of being "parties in dispute." The "party"
is the abstract universal ".particle .. of the social field, and signifies simply
that the social field is comprised of "legal parts" that are. at this highest
level of generality, identical to one another.
In order to legalize the normal movement of the social tield, eacl) party
must be conceptualized as possessing certain universal normative
"properties" signifying that the way people do function together normally
is also tlte way. people should function together normally. These properties are called "rights" and "duties." Within any fact-situation of whatever kind, 'each party is presumed to have a "right" to the other's normal
functioning (e.g., prompt delivery of the goods, driving at normal speed),
anci-each party is also presumed to have a "duty" to function normally
toward the other. If we continue to think of the judge as a "legitimation
sciehtist" who observes the "data" that makes up the social field, we can
say that he conceptualizes what he sees as a mass of moving "parties," all
identical, all linked to one another through the bonding permitted by the
rights and duties possessed by each party. And in so doing,,he reifies the
interaction of the parties as legitimate a priori, since it appears to him that
39
the parties interact because they ought to. From within the legitimating
gaze, a party delivers goods on time, or a party remains within the speed
limit, or a party disposes of net income properly, because he has a duty to
do so and because the other has a right to it. Once the abstractions are
concretized, it appears that this is simplY' how parties interact, or more
precisely, it appears that parties do interact the .way they should. "Is"
and "ought" are fusedjn the very way that the social field is conceptualized.
Within any particular fact-situation, the legal party is reconceptualized
in terms of the particular function that he or she (perhaps ''it"would be
the correct pronoun) is obliged to peform. Suppose, for example. that
party A is in dispute with party B because B delivered some .goods five
days late (A would not transfer money to B, B is upset, etc.). The system
is in disequilibration and the judge is asked to state its law, which. as we
can now begin to see, is nothing more than the legitimating conceptual
representation of its normal functioning. He asks first: ''What was B's
duty?" This is derived by abstracting a concept from B's normal function
within the system, reifying the concept in such a way that the function
becomes "what B is," and then describin'k what B does in normative
terms as identical to what B ought to do. Thus a "party" of the type B is
conceptualized as a "seller." a concept which simply freezes this party's
fllnction as it is dictated by the movement of the commodity; this function
is then factualized as what sellers do (the common-sense may be. in this
case, that sellers deliver goods on time); and then this factualize,d normal
function receives a normative articulation ("sellers have a duty to deliv.er
goods on time"). When a "seller" fails to deliver goods on time to a
"buyer, .. then the buyer's "right" has been "violated." In analyzing the
facts this way. all that the judge actually does is to restate the facts in
terms of their lawful attributes. such that what happened in the facts
appears as a violation of a law immanent to them. And through this
restatement, normal equilibration of the seller-buyer world is restored in
the realm of thought.
It follows from this that a ''rule of law" is merely the normative reification of function-it is a way of describing a normal practice that has been
generated by pressures within the ~ystem in a legitimating conceptual
form. t:he judge needs to construct such a rule because what he wants to
do is to describe what this seller "should have done" by evaluating her
factual conduct in relation to what all sellers "should be doing" within the
system. This can only be accomplished by evaluating what this seller did
in relation to what sellers as a generality (as performers of the "sellerfunction") actually do, and then re-presenting this evaluation in an
"ought" form. For example, the actual rule thatis to be applied in the
case that we are looking at, the prompt-delivery rule, emerged as. a rule
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PETER GABEL
receiving wide acceptance from the socio-economic relations of classical

free-market capitalism. We can infer from the very fact that this rule was
"accepted" and "made sense" that these socio-economic relations generated a normal practice in commodity-exchange transfers that favored
the simultaneous transfer of goods for money.7 Faced with a systemic
breakdown, the judge abstracts from this normal practice a legitimating
rule that "applies" to all sellers: "Prompt delivery by the seller is a
condition precedent to the buyer's duty to pay." When this rule is reified
as a "law," the appearance is created that the "commodity-exchange
transfer-function," as it is supposed to be performed by all sellers within
the system, is caused by "the rights and duties of the parties." The judge
can then deduce whether this seller did what she "ought" to have done by
comparing her factual conduct to what all sellers "ought" to do.
This process of reifying the rule turns the world as it is on its head,
because Jt signifies that a norm of intersubjective action is "caused" by
an ideological appearance that has been drawn from it. The process of
deducing outcome from rule then becomes the process of signifying the
causalityof the law, of signifying that the social order is the consequence
of a legal order' that is immanent to it.
3. The Temporal Structure of Legal Reasoning: "Reliving a TimeSequence" through the Thought Process of Logical Deduction
Whenever I have referred to the normal movements of facts, I have
used the word "movement" as an objectified representation of the
temporal activity of real human actors, working in intersubjective
reciprocity with one another. Each actor, of cour.se, does not at first
experience his activity as that of a moving fact. He lives his activity as
what might be called "projective possibility"-that is, as towards the
realization of some practical intention that has been defined for him by
circumstances. These circumstances are actually a network of coercive
social relations that have been shaped by material objects, each of which
bears, through the inscription imposed upon it by past labor, a social
meaning. The sociat meaning of the commodity, for example, is towards
the network of social relations which constitutes the market. Because the
seller is constituted as a seller'by the social meaning of the commodity, he
adopts its meaning as his own. He experiences the commodity as towards
the possibility of exchanging it for money. To this extent, the person who
sells goods has become passivized and thing-like.
Yet the project of carrying goods to the market is a contingent project
that is pervaded, as I have suggested, by a sense ofillegitimacy. Because
every disequilibration threatens to raise this sense of illegitimacy to a kind
of inchoate awareness, it is the function of the judge to interpret the
contingency of the seller's project as factual necessity. Therefore, his
41
objeetive is to apprehend and express the seller's contingent behavior as

the movement of a fact. The apprehension of the fact-situation as a synthetic and passive activity, which, as I have shown, describes the first
movement of the judge's consciousness, is therefore properly called a
"temporalization"; it seizes upon the alienated temporal project of each
social actor and represents this project as factual movement. I indicated
this implicitly earlier when I described this initial process of apprehension
as a process of re-experiencing" the events that gave rise to the breakdown in order to sense whether they reveal a disequilibration from the
norm.
If we review the thought-process of applying the law to the facts as I
described it in the previous section, we can see that this is also in reality a
"temporalization" of this kind. The process of "deducing the outcome
from the rule'' is in reality a process of re-experiencing the event itself as
that event is signified through legitimating concepts. To return to my sale
of goods examplef what occurred in the real world was an atremP,ted
exchange and breakdown. Through the legitimating prism of the law,
however, this occurrence is re-experienced as a temporal movement of
imaginary figures who apparently actually possess "rights and duties" as
aspects of their being. When I say that the process of deducing outcome
from rule is a process of signifying the causality of the law, I mean that the
judge is literally guiding an imaginary movement of the collective consciousness through the signifying movement of "deducing." He shows
that a particular seller who possesses the universal attribute of ''having a
duty to deliver on time" (as signified through the general rule) has in this
instance mis-acted or violated his attribute by delivering late. The rule
states the imaginary attributes; the so-callt:d "'application of the rule" is
simply a re-experiencing and re-describing of what occurred in the real
world as it is seen through the prism of these attributes. In reaching the
outcome, therefore, the judge is simply reliving the time-sequence that
has given rise to the dispute, but in a wholly imaginary way. His "legal
reasoning" is finally nothing more than a movement of the imaginary-;-an
imaginary that takes on the appearance of the real thrmtgh the process of
reification.
This final aspect of the description has important implications for
understanding the role of the legal outcome in the social system-it means
that the outcome is significant only in its effect on the collective imagination of the culture, because the outcome "is"' nothing more than the
signification of an image. Of course, the result of the legal proceeding
does have a practical consequence-one person tells another to do something and he either does it or is compelled to by somebody with a gun. But
this practical consequence has.to'do with the role of force and not with the
role of law. and it is but an incidental concrete aspect of the ritual through
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PETER GABEL
which law is brought into the world. In the "legal world" that is signified
in the judge s opinion. the signification that the buyer "'win_s .. because her
"right" has been "'violated" is to express the necessary imaginary "outcome" of an imaginary interaction between essentially fictional characters. To the.extent that people share in the judge's experience as it is
signified in the opinion. they come to believe in a "'legal order" that
directs the concrete truth of daily life.
III. THE 11 0NTOLOGICAL" BASIS OF LEGITIMATION;

LEGAL REASONING AS A WAY OF RESTORING THE
UNALIENATED GROUP IN IMAGINARY FORM
A. Tlze Relationship between Legal Reaso1iing and Normative
Political Theory
No matter how much people experience their social relations as relations between things. they do not forget that in reality these relations are
only thing-like (cf. Jameson. 1971: 244-246). For this reason. a law which
reifies .. and legitimates these relations must itself be legitimated by concepts which are abstracted from the subjectivity of those to whom the law
applies. A person who asks why he has a legal duty to do something is not
answered by being told "because it is your function to do it." Such an
answer would suggest that he is actually a thing, which he knows is not
the case. The only effective answer to such a question is to justify the
duty by reference to a "human nature" which, brought the duty into
being. or, in otner words, the law must appear to spring from normative
assumptions about who "the parties" are as real people.
Thes.e normative assumptions are embodied in the abstractions of
normative political theory. The activity of thinking up political theory is
formally identical to the activity of thinking up legal reasoning. It consists
in apprehending the system as a synthetic quasi-object (the presupposed
norm). drawing abstractions from the movement of concrete social actors
as they move in their normal functioning, reifying these abstractions. and
then creating the appearance. through "political reasoning ... that these
abstractions have brought the world as it is into being. In political reasoning, the thinker's intention is to attribute a normative subjectivity to the
members of a culture that is then reified as "human nature," in exactly
the same way that legal reasoning reifies the duties of the seller as an
ingredient or property of what might be called the "seller's nature ... In
each case, we are dealing with areifying thought,but political reasoning
backs up legal reasoning by articulating the relationship between the
seller as functioning-unit and the seller as human being, such that the
duty'" c,orresponding to the seller's function seems to be ultimately derived from his own intentions. Of course. these "intentions" are actually
43
those of the abstract and normative "subject" whose identity has been
grafted as a reified fact onto the seller's being (thus, it is said that he
entered the contract of his own "'free will"); yet the seller feels these
intentions as his (or. in other words, it "makes sense'' to him to call them
his intentions) because his identity as normative subject has been abstracted from his actual alienated functioning in the 'world (engaging in
apparently voluntary transactions in a "private" market).
Thus, it makes sense, in the objective context of a freely competitive
market, to describe the necessary systemic function. of exchange as the
consequence ofan intentional interaction between two "free and equal"
subjects. Seen as quasi-objects. the pa'rticipants in an exchange nre in a
certain sense "free and equal":_that is, in the sense in which atoms as
"mere facts" appear to the physicist as unattached and identical. The
subjective concepts 1are abstracted from the concrete functioning of the
participants, and once reified; they represent the functional interaction as
the consequence of the participants' hun\an natute as subjects. Similarly.
it makes sense, in the objective context of the cooperative market that we
now have, to describe the same exchange as the consequence of an intentional interaction betweentwo "free and equal" subjects "acting in good
faith ... Seen as .quasi-objects, the participants in an exchange today do
"act in good froth" in the same sense that the bonded atoms in a molecule
appear to the physicist as attached to one another. The subjective moral
sentiment is abstracted from the objective functional reality. and reified,
such that it appears that the necessity of objective cooperation irt stateregulated monopoly capitalism is the consequence .of the participants'
subjective intentions. In both cases, the alienated intention which is
forced upon the participants by the movement of the commodity and
which mirrors their function. is represented normatively in the abstract.
These are examples of the way that political theory is used within
judicialopinions. In any historical period there are also full-blown works
of political theory which subjectivize and naturalize the entire system of
social relations from which they are abstracted. Thus, liberal political
theory, as it emerged in the context of a developing competitive market.
described the entire structure of market relations as the consequence of
atomized and self-interested "free wills" (utilitarianism and social contract theory). Its. conceptual structure made the facts of competitive
capitalism "legitimately lawful" by allocating the responsibility for "its
laws to an hypostasized "we" which supposedly brought the world as it
was then into being. This "we" was an abstract collection of free wills
who created an abstract "state" that created the laws by which social
relations were to be governed. Today, liberal political theory has been
modified to conform to the cooperative structure of contemporary capitalism. It is imagined that classical liberal theory was wrong in failing to
include a moral component in each subject's free will that would limit
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PETER GABEL
liberty as license in the interests of a newly conceived notion of the

general welfare. And it is through this new conception of a more moral
we that the laws of corporate liberalism find their political justification.
Seen in this way, a work of normative political theory is a kind of fantastic
fable or myth describing the world as it is in a common-sense mythical
form, and yet hiding its mythic quality beneath the false concretization of
reified abstractions.M
Now if we put this brief description of political reasoning together with
the description of legal reasoning in the previous section, we can see each
judicial opinion as a mythical narrative that restores the system's equilibration in the realm of thought by resolving a dispute according to the
requirements of "human nature." The equilibrative tendency within the
system is apprehended as the movement of a normative political "we," or
in other terms, the intersubjective ltlovement of socio-economic relations
is abstracted as a political communion of normative subjects. Through the
abstract "political process," "we" create the laws which govern "us ...
These laws define the "rights and duties" of normative subjects to one
another. and are "applied" in the resolution of disputes between
"parties." And through the collective fantasy of applying the law. the
resolution of each dispute restores a disrupted communion to its lawful
state. We are reminded that the system itself is the embodiment of our
collective nature.
B. The Trmrsposition of the Real into the Imaginary

And yet this description of legal reasoning, which we should now call
"politico-legal" reasoning, does not explain its efficacy, its psychological
power. If the motive force behind this thought-process is the concealment
of "a traumatic absence of connectedness that does not wish to become
conscious of itself,' it remains for us to understand how~the experience of
thinking this way provides a psychic gratification that temporarily alleviates the trauma when it threatens to erupt, through the dispute or breakdown, into awareness.
The solution to this dilemma is to be found in the ontological meaning
for each person of experiencing the intersubjective movement of socioeconomic relations as a political communion of normative subjects. This
experience is captured in the psychoanalytic concept of a "wisrr fulfillment ... Under the pressure of what Freud called the "return of the repressed, or of what we can here describe as the possibility of becoming
aware of'the social alienation that pervades o~r entire collective experience. we respond by imagining that we are actually disalienated in an
harmonious socio-political connection that is also "the law." No matter
what the particular content of the politico-legal thought (feudal/religious,
capitalist/liberal, etc.), its universal ontological feature is that it generates
45
an imaginary feeling of "with-ness" by restoring the feeling of being-in-a gt:oup in an imaginary way .9 In other words, there occurs something like
wnat Freud called a "cathexis, .. whereby dammed up desire is partially
and momentariJy gratified through images that are signified in thought.
These images are potentiated in such a way that they are able to allow us
to experience, through.an infinite number of historical forms~ what life
would be llke in the absence of alienation. Thus, to imagine a soci'ety of
"free and equal citizens" is to experience, however dimly, a feeling of
collective spontaneity free of interpersonal domination; to imagine a
world in which people have "moral obligations" to one another is to
experience . however'dimly, a feeling of reciprocal recognition and commitment. And even God's harshest commands, as they were embodied in
the politico~legal ideology of feudalism, allowed people to experience a
feeling of genuine love through the image of possible sal'>'ation. It is the
cathexis of these ideal images that provides what we might call the emotional correlate of reification: "belief' in' the law derives not' from mer~
indoctrination, but from a desire to reify, a desire to believe that the
abstract is concrete, that the imaginary is real.
The ti;ason that these ideal images can take an infinite number' of historical forms is that our ontology, our social being, is indivisible. We do
not want freedom and equality and recognition and justice in an additive
fashion; it is, rather, that each of these words signifies an indivisible and
whole way of being-in-a--group that will achieve concrete expression only
with the elimination of alienation. In the ontological sense, freedom implies equality just as equality implies freedom. and bot-h will be realized in
the concrete when either is, neither before the other. There is no limit to
the way that this sense of wholeness and sociality can be expressed, since
the historical development of forms of social expression is nothing other
than an infinite evocation of social being in the course of its becoming.
Thus, from the ontological point of view, we can say that the judicial or
political "ideologist, .. as a social theorist of the imaginary, h<l:s an infinite
variety of images available to hi,m in the construction of his legitimating
thought.
From the socio-historical point of view, however, his options are
strictly limited by what we could call formal and historical constraints.
The "formal" constraint is one that I have emphasized consistently in the
course of this essay-in order for politico-legal reasoning to "make
sense," there must always be a relative correspondence in form between
the imaginary social organization of the legitimating images and the social
organization of toe concrete socio-economic world from which these
images are drawn. Thus, from a purely formal standpoint, for example,
the legitimation of the feudal hierarchies required ari ideology of Divi!Je
Right or any formal equivalent that could represent these hierarchies in an
PETER GABEL
46
39
38
imaginary ideal way. The "historical" constraint on the development of

politico-legal thought is what gives a relatively determinate content to the
particular evocation of the ideal that is possible at a given historical moment. Because there must be an historical continuity to the development
of. ideological forms, the ideological tensions that are continually produced by formal disjunctions between a prevailing ideology and the transforming equilibration of the common-sense must be mediated by a
thought that simultaneously conserves the existing forms and images
while surpassing them toward new imaginary wholes. In this historical
sense, the hierarchies of feudal life, for example, required an ideology of
Divine Right or any mediative equivalent that could have adjusted the
prior cosmology to a new social order. 10
As an historical figure, therefere, the ideologist is perhaps best seen as
a kind of sleight-of-hand man or "bricoleur" (Levi-Strauss, 1966) who
seeks to fuse these ontological, formal, and historical dimensions of legitimatirtg thought in the fabrication of a perpetual illusion that everyone
wants to believe. The group conspires to create him in order to maintain
its collective repression in the face of a perpetual terror that there will be a
'breakdown of law,' which is to say a breakdown of even the imaginary
forms of social cohesion. The only antidote to this perpetual movement of
unconscious conspiracy is the development of a concrete disalienating
social movement that would make imaginary forms of social cohesion
unnecessary. And one feature of the development of such a movement
must be the delegitimation of the law altogether, which is to say tpe delegitimation of the notion that social life is created and enforced by
imaginary ideas.l 1
NOTES
1. This essay is a revised version of a paper given at the second annual Conference on
Critical Legal Studies in November. 1978. It is part of a larger work on the psych~logy of
legal reasoning. I am particularly grateful to Alan Freeman, Duncan Kennedy, Michael
Lerner. Andy Lichterman. and John Henry Schlegel for their detailed comments on earlier
drafts. The main influences on the ideas presented in the essay are the works of Marx ( 1967),
Freud ( 1962, 1964), Heidegger tl962), Jameson ( 1971), Laing (1967), and especially Sanre
(1976). In ll)Y description of the legal thought-process, I have used a number of Sartre's
terms. the meaning of which may be unclear to readers unfamiliar with his later work. Those
that are not adequately defined through their usage in the text are the following: Synthetic is
used in the sense of synthesizing" rather than in the sense of artificial." Our lived
experience of the world is always synthetic because we experience the world in every
moment toward the realization of a coherent and understandable end. Thus a carpenter goes
about fixing a door by experiencing the materials and tools available \.0 her not as inert
"things," but as synthetically unified and directed toward the realization of her objective.
The comprehension of this objective is experientially prior to the analytical thinking that she
will use to reach her goal. Thus, we can say that she apprehends her tools synthetically
toward the comprehended project of fixing the door, and she "thinks about" how to use
I
\
47
these tools analytically on the basis of this prior comprehension. This is also true of the
judge who "intends" to legitimate (comprehension) and who uses legal reasoning analytically for this purpose. The word dialectical describes the movement of consciousness in
action. Human experience is always meaningful action that unifie~ and 'conserves what is
given toward the realization of a novel objective that surpasses what is given. This is what it
means to say that action (or practice) is a dialectical movement. Dialectical reason is the
activity of thought attempting to conform its!'! If to this movement. The terrp,worked matter is
Sartre's way of expressing the signifying movement of material objects in history, and it
represents an attempt to enrich the overly abstract and objectified Marxian concept of
"material conditions ... Any material object alY(ays reveals its!! If to our experience qs already sha(:!ed by past labor toward a use that it signifies in its social appearance. Pa~sivi;;a
tion describes an act of direct or indirect power through which a P.erson or group IS compelled to feel a loss of agency in their social activity (cf. Klein. 1976). This act of power may
be performed by no one in particular: in capitalist society as a whole. for example. it is
"capital as a social power." to use Marx's phrase, or capital as a social organization of
worked matter. to use Sartre's vocabulary. which passivizes the dominant classes as well as
the dominated. I use the phrase "passivized within a role" to describe the way that the
forms of interpersonal recognition generated in alienated groups prevent people from reciprocally eliciting each other's full and active humanity, a humanity which can be elicited o~ly
through the process of realizing an organically generated collective activity. Sartre describes
the collective experience of passivity that is produced'by the "weight" of worked matter as an
inertia. I describe a thought which "factualizes" a passivized situation as a passivizing
thought because it intends to deny the feeling of "illegitimacy" that is produced in the
alienated group.
2. The ritual cadence of the tirst five verses of the pledge of allegiance is identical to that
of the first five verses of the Lord's prayer. To discover this identity. you must recite each of
them in the proper sanctified manner according to the following normal rhythm:
I Pledge Allegiance/
Our Father/
To the Flag/
Who art in Heaven/
Of the United States of
Hallowed be Thy Name.
America.
And to the Republic/
Thy Kingdom cqme/
For which it stands/
Thy Will b~ done/
If we delete "One blation/Under God/Indivisible" as il mere dmwing-out of the dmmatic
rhythm of the prior two verses. we discover the parallel resolutions "With Liberty and
Justice for all ... and "On Earth as it is in Heaven: Compare the following comment of
Marx ( 1975: 146): "It was a detinite advance in history when the Estates were tr.1nsformed
into social classes so that. just as the Christians are equal in heaven though unequal on earth.
the individual members of the people become equal in the heaven of their political world.
though unequal in their earthly existence in soi:iety." {See also Balbus {19(7: 579).)
3. Although this essay describes legal reasoning as form of alienated thought within
capitaism. the description is eqmilly applicable to the legitimating thought of any alienated
group. whether the group thinks of itself as "capitalist."' "communist ... or a divinely
ordered cult. I mean to describe not capitalist law in particular. but a self-justificatory mode
of thought. The description of legitimation at a social level is also applicable to what is
ordinarily called rationalization at a personal level.
4. I would emphasize that this description of legal reasoning is not limited in its application to the late 19th-century conception of law as "science." It is rather a description of the
way that analytical reasoning generally reveals itself in all legitimating thought, of which
classical "legal science ... with its separation of law and morals. its formalistic style. and its
treatment of the parties as atomized units,-is but one example. Thus, if one looks carefully at
48
41
40
PETER GABEL
the thought-process of a patient in psychotherapy who is attempting to legitimate or justify a

particular course-of conduct. one finds the same essential features that appear in all legal
opinions-apprehension of the "'facts" according to an organizing schema that recognizes
similarity and difference (reasoning by analogy), and justification of the "facts" (or fact'')
according to a normative "rule" that is abstracted from the perceived similarities. A patient
wears gloves during therapy sessions for symbolic reasons that he wishes to deny. He
justifies the "fact" of wearing gloves by finding a cultural likeness between this conduct and
that of others in similar situations and by then appealing to the general rule that "everybody
should wear gloves in a room as cold as this one ... This mode of thought is equally characteristic of religious reasoning. which has provided justifications for both personal conduct
and entire social processes for many centuries. I emphasize the relationship between legal
reasoning and what is ordinarily called the scientific method in order to bring home a central
point that is drawn out particularly well by the comparison: all legitimating thought seeks to
natimilize" social phenomena.
5. Equilibration. equilibrative tendency, and disequilibration are terms that I use to
describe the conspiratorial and tenuous effort of an alienated group to maintain' a sense of
raise cohesion in the fact of a perpetual tendency toward collapse and panic. The so-called
"capitalist syst~m" is such a group. as are each of the groups 'Which constitute it. For
example. at a cocktail rarty attended by a certain sector of the academic intelligentsia. the
guests will stand at a particular distance from one another because each imagines that
everyone else imagines this to be the proper distance. This is an example of a fal~e cohesion
or equilibration that is perpetually in danger of disequilibration. (Compare the description of
a "nexus" in Laing, 1967.) To make a more general point that I cannot develop here. what
structuralists call a "structure" is in my view the sedimented residue of an equilibration. or
in other words. an "equilibration" is a way of describing the generation of structures from
within historical time. For more on this last point. see my book review "of Dworkin's Taking
Rights Seriously. note 11 ( 1977bl. Legal reasoning is an example of an equilibrative thought
in that it attempts to "legalize" the false cohesion of a "nation" (an imaginary construct).
6. I do not mean to imply that there would be no social context within which one could
use the concept "lamp" without reifying it. Whether the concept "lamp" becomes reified
depends upon whether or not we are able to "remember" the concept's abstract and provisional character. This. in tum. depends upon whether we are able to actually experience
the thing itself as a temporal object fashioned by human beings for a human use. or whether
we experience the thing in a fixed and factual way as if it simply had an inborn attribute of
"emitting iight. .. As Marx showed in a general way ( 1967) and as Sartre has described very
explicitly( 1976) . when we are passivized by the mediating influence of worked matter upon
our social relationshipS--when we are "alienated" from one another by our "material
conditions"-we are forced to "forget" the human origins of the existing material ensemble.
A consequence of this is that we experience objects in a tixed and factual way as simply
possessing certain properties. like the capacity to emit light. and a further consequence is
that the concepts we use to signify these objects and their "functions" are experienced as
reified. Reification is. therefore. not a quality of the concept itself. but of the way we feel
when we use it. For a brief and very good discussion of the distinction between "objectitication .. and "alienation: see Jameson ( 1971. pp. 138-240).
7. I am not saying that normal practice ever conforms in an empirical way to acwal
practic~ because a variety of factors influence actual practice besides the objective pressures of the market. For example. any given buyer may accept a late delivery in order to
maintain a long-standing relationship with a particular seller. even if his immediate advantage would be served by a substitute purchase in the market. Similarly. any given buyer may
accept late deliveries out of simple kindness. whether or not it is feasible for his business.
since' people who perform alienated socio-economic functions remain human beings. nonetheless. Thus. when I use the terms "normal practice" or "normal function: I am referring
49
to an "ideal" norm rather than an empirical one. as expressive of a tendency within the
system that places a 'determinate pressure on socio-economic actors. ((nan earlier article. I
described these functional pressures as "atomic-substitutional" in the case of the free
market. and "cluster-cooperative" in the case of state-regulated monopoly capitalism (See
Gabel, 1977a, p. 619)). Whenever there is a breakdown in relations between a seller and a
buyer that leads to overt conflict and an' ensuing legal dispute. both of these people become
defensive and wish to rely on their respective interests ... interests that are determined for
them by the system's equilibrative tendency or ideal norm. They expect to "fall back on
their rights ... and it is this defensive posture that accounts for the fact that the legal rule
expressing these "rights" is a representation of "normal practice." understood in an ideal
sense. It has been suggested to me that my description of the legal rule as a "normative
reification of a function .. seems to conform more closely to the traditional Marxist "reflec
tion.. theory of ideology than to the more commonly-held' modem view that law has a
"relatively autonomous"'influence on the movement of socio-economic processes. This is
both true and false. It is false in the sense that the orthodox Marxist position derives from a
positivist methodology that cannot account in any way for how real living human beings
bring law into the world in order to defensively legiti~ate their alienated relationships. Th~
"retlection theory ... in other words. does not understand that it is in order to sustain their
alienation as the only available form of social cohesion that people give their social experience the appearance of being "determined ... The suggestion is true. however. in that the
"relative autonomy theory. at least in some of its many forms. attributes a "causal" or
active force to legal ideas in affecting concrete social conduct that these ideas as mere
legitimating abstractions simply do not have: I am in agreement with the most basic postulate of psychoanalysis that people do not act the way they do because they think they want
to. bul because they feel they must. They feel they must. not because of what they are taught
to think about" the world through law and other ideologies. but because their social. being
is conditioned. through distorted intersubjective experiences traceable to socio-economic
pressures. in such a way as to leave them no "ontological" alternative. It is when this
conditioning is jarred through overt cont1ict that "the law" is brought in to reassure and
re-repress. and legal thought accomplishes this by representing or "retlecting concrete
social relations in a reified and legitimating form. To the extent that the relative autonomy
of law" is meant to refer only to the fact that the dominant classes do not directly use the law
to maintain their power in an instrumental fashion (cf.. Balbus. 1977). I think the idea is
correct. Law serves the interests of the dominant classes not by directly "enforcing their
will. but by legitimating the entire socio-economic system within which they already exercise a dominant position. :r'his version of the relative autonomy" position keeps clear the
distinction between the role of force. which is instrumental and concrete. and the role of
law. which is a form of abstract justification.
8. Well-known contemporary examples of such mythic texts are Rawls (1971) and
Dworkin ( 1977).
9. This. it seems to me. is the ontological basis for Marx's statement that in the legal
state. each person is "the imaginary member of an imaginary sovereignty ... divested of
his real. individual life and infused with an unreal universality" (1978. p. 34).
10. My use of the terms "formal" and "historical" corresponds roughly to my understanding of the terms "synchronic" and diachronic as they are used in structuralist
thought as descriptive of the organization and transformation of concepts (cf., Culler. 1978).
Please note that when I refer to a "formal correspondence .. in the relation of legal thought to
socio-economic practice. I am referring to a correspondence that emerges within existentialhistorical time according to what we might describe as a "legitimation-correspondence rate"
that is felt as necessary by members of the group. It is impossible to line up the so-called
"base" and the so-called "superstructure" by comparing the "economic form" and the
"legal form prevailing in a particular decade or number of decades because real life does not
42
Critical /..,f!gal Studies
50
PETER GABEL
proceed in accordance with the presuppositions about quantities of time that are characteristic of positivist methods. It would require a great deal of research to describe the
phenomenological rate of emergence of even a single legal ideology. which even at its
''high point"" would appear in a transformatlve state of simultaneous construction and
collapse (cf., Kennedy, 1979), but among the influences on this legitimation-correspondence
rate would certainly be the rapidity of transformation in the socio-economic system. the
value for legitimation of retaining the contours of an existing ideology as long as possible
(i.e., its "inertia"), the possibility attributing a new set of meanings to an existing structure
(consider the history of legal positivism from Austin to Hart), the capacity of a particular
social formation to withstand a protracted legitimation crisis (cf.. Habermas. 1975). and
even the "rate .. of fortuitously appearing creative ideologists. The method oi analyzing the
historical development of legal thought as a continual process of mediating contradictions
that emerge within ~xisting conceptual structures is being developed by AI ,Katz ( 1979) and
Duncan Kennedy ( 1979. 1980: Glossary). In addition to their work. the best studies that I
have real personally that show the actual movement of particular legal ideologies in the
service of legitimation are those of Andr~w F~er (1978), Alan Freeman ( 1978a. 1978b),
Eugene Genovese (1974), Douglas flay (1975), Karl Klare (1978), and Andy Lichterman
( 1980). See a1so O,abel ( 1977b) and compare ,Tushnet ( 1980).
I I. This should not be taken to imply that there would be "no law" in a future and more
humane society. To the extent that the transformation of socio-economic life allows for the
development of less alienated personal relationships. it will become both possible ,and important to develop provisional forms of moral consensus that are externalized and communicated as part of a "constitutive" politics (See especially Klare. 1979. and also
Habermas. 1979).
Balbus. Isaac, "Commodity Form and Legal Form: An Essay on the 'Relative Autonomy
of the Law, .. Law and Soc. Review II ( 1977): 571-588.
Culler, Jonathan. Ferdinand de Saussure, New York: Viking Press. 1978.
Dworkin. Ronald. Taking Rights Seriously, Cambridge. Mass .. Harvard University Press.
1977.
Fraser. Andrew. "The Legal Theory We Need Now ... Socialist Rede11 -l()...41 (JulyOctober 1978): 147-187.
Freeman. Ala~. "Legitimizing Racial Discrimination through Anti-Discrimination Law:
University of Minnesota Law Review 62 (1978a): IM9-1119.
- - - - . "School Desegregation Law: Promise, Contradiction. Rationalizaton. Paper
presented at Harvard Law School symposium bn Anti-Discrimination Law. October,
1978b.
Freud. Sigmund. The Ego and the ld, New York: Norton. 1%2 (originalty published in
German, 1923).
- - - - . T h e Fmure of an Illusion, Garden City. New York: Doubleday. I~ <originally
published in German. 1927).
Gabel. Peter. "Intention and Structure in Contractual Conditions: Outline of a Method tor
Critical Legal Theory." University of Minrlesota Law Review 61 ( 1977a): 601-643.
- - - -..aook Review of R. Dworkin. "Taking Rights Seriously ... Harvard Law Redew
91 (1977b): 302-315:
Genovese: Eugene, "The Hegemonic Function of the Law ... in Roll. Jordan. Roll. pp.
35-49, New York: Vintage Books. 1974.
Habermas. Jiirgen, Legitimation Crisis, Boston: Beacon Press. 1975.
- - - - . Communication and the EL"olution of Society, Boston: Beacon Press. 1979.
-~-
-~~-
51
Hay. Douglas. "Property. Authority, and the Criminal Law," in D. Hay. D. f,.inebaugh. J.
G. Rule,. P. Thompson and C. Winslow (eds.) Albion's Fatal Tree. pp. 17-64. :-.lew
York: Pantheon Books. 1975.
Hegel. G. W. F., The Phenomenology of Mind, New York: Harper & Row, 1%7 (originally
published in German in 1807).
Heidegger. Martin. Being and Time. New York: Harper & Row, 1962 (originally published
in German, 1927).
Jameson, Frederic, Marxism and Form, Princeton, N.J.: Princeton University Press. 1971.
Katz, AI, "Studies in Boundary Theory: Three Essays in Adjudication ana Politics," Buffalo
Law Review 28 ( 1979): 383-435.
Kennedy. Duncan, "The Structure of Blackstone's Commentaries." Buffalo La II' Redell' :!8
( 1979): 209-382.
- - - - . "Toward an Historical Understanding of Legal Consciousness: The Case of
Classical Legal Thought in America, 1850-1940, .. inS. Spitzer (ed.) Research in Law
and Sociology. Vol. 3 ( 1980).
Klare. Karl. "Judicial Deradicalization of the Wagner Act and the Origins of Modem Legal
Consciousness. 1937-1941 ... University of Minnesota Lall' Review 62 ( 1978): 265-338.
- - - - . Law-Making as Praxis: Telos 40 (1979): 123-135.
Klein. G .. Psvclwanalytic Theory, New York: International Universities Press. 1976.
Laing, R. D. .' The Politics of rperience. New York: Pantheon Books. 1967.
Levi-Strauss, Claude. The Savage Mind. Chicago: University of Chicago Press. 1966.
Lichterman. Andrew. "Between Natural Law and Total Administration: Rawls. Dworkin.
Kohlberg and the Legitimation of the \=orporate State, .. Unpublished manuscript
(1980).
Marx. Karl. Capital. Volume I. New York: International Publishers. 1%7 (originally published in German. 1873).
----."Critique of Hegel's Doctrine of the State" in Lucio Colletti (ed.) Marx's Early
Writings, Middlesex: Penguin, 1975.
- - - - . "On the Jewish Question" in Robert C. Tucker (ed.) The Marx-Engels Reader,
pp. 26-52 ( 1978) (originally published in German. 1843).
Rawls. John, A Theory of Justice, Cambridge. Mass.: Harvard University Press. 1971.
Sartre, Jean-Paul, Critique vfDialectical Reason: Theory of Practical Ensembles. London:
Humanities Press. 1976 (originally published in French. 1%0).
- - - - . Life/Siwations, New York: Random House, 1977 (originally published in
French. 1975).
Tushnet, Mark, "Truth, Justice and the American Way: An Interpretation of Public Law
Scholarship in the 70s: Texas Lall' Reviell' 59 ( 1979): 201-253.
REFERENCES
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43
............__. . .:.,_____________________
----=~-~-----_
[3]
.}
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518
Freedom and Constraint in Adjudication: A Critical Phenomenology

Duncan Kennedy
This paper attempts to describe the process of legal reasoning as I imagine

I might do it if I were a judge assigned a case that initially seemed to present
a conflict between "the law" and "how-l-want-to-come-out." Such a description, if at all true to experience, may be helpful in assessing the various
claims about and images of law that figute in jurisprudential, political, and
social theoretical discussion. It may also be helpful in assessing what law
teachers teach future lawyers about the nature of the materials they will use
in their profession. But I will have little to say about these implications,
aside from a polemical afterword. 1
I am not sure what difference it makes to the phenomenology of adjudication whether I begin with this situation rather than another. The whole
experience of law may be sufficiently the same thing through and through so
that wherever you start, you end up with approximately the same picture. Or
it may be that there is no experience of legality that's constant without
regard to role and initial posture of the case. What I am convinced of is the
need to start with some particularization. I don't find myself at all convinced
when people start out claiming they can tell us about judging without some
grounding in a specific imagined situation.
The judge is a federal district court judge in Boston. I am from Boston. I'm
more a ruling class elite type than a local politician or notable type, which is
why I choose the federal forum. But what's most important is that the judge
Duncan K~nnwy is Prof~sor of Law, Harvard Law School. A shorter version of this artid~ will
appear as a chapter in AlaQ Hutchinson 8c Patrick Monahan, The Rule of Law: Ideal o[
Ideology (Toronto, 1986).
I. Note on sourc~: I think of this exercise as an extension of the legal realist project, as
exemplified in Felix Cohen, The Ethical Basis of Legal Criticism, 41 Yale L.J. 201 (1931),
Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960), and Edward H.
Levi, An Introduction to Legal Reasoning (1949). The description of legal materials as
presenting a field open to manipulation owes much to Wolfgang Kohler, Gestalt
Psychology: An Introduction to New Concepts in Modern Psychology (New York, 1947).,
Kurt ~in, The Conceptual Representation and the Measur~me"t of Psychological For~.
I Contributions to Psychological Theory, 4 (1938), and jean Piaget, Play, Dreams, and
Imitation in Childhood, trans. C. Gauegno and F. Hodgson (New York, 1962). My
emphasis on work derives from Karl Marx, Economic and Philosophical Manuscripts o[
1844-1845, in Early Works, trans. Benton (New York, 1975). The overall conception and
philosophical premises derive loosely from jeanPaul Sartre, Being and Nothingn~s. trans.
Hazel Barnes (New York, 1956) and Jean-Paul Sartre, Critique of Dialectical Reason, trans.
Alan Sheridan-Smith (London, 1976).
o 1986 by the Association o( American Law Schools. Cite as 36 J. Legal Educ. 518 (1986).
46
Critical Lega(Studies
Critical Phenomenology of Judging
520
519
is responsible for deciding this case, rather than a party or an observer or an

going t~ be loo~ing at law as a person who will have to apply
change It, defy It, or whatever. I will do this in the context of
the legal a_nd lay com~~I_tity that follows what federal district court judges
do, and with the possibility of appeal always present to my mind.
The. more ~o~_ple_x condi~ions of this inquiry have to do with the polarity
between my mtual ImpressiOn of "the law" and my initial sense of how-Iwant-to_-come-out. H~w-I-want-to-come-out might be based on my having
been bnbed and wantmg to keep my bargain, or on a sense of what decision
would be popular with my community (legal or local), or on what I thought
the appeals court would likely do in the case of an appeal. It might be based
on a sense that the ~quities of this particular case are peculiar because they
~avor ~n outcome different from what the law requires, even though the law
IS ~a~Ically a very good one, and even though it was on balance a good
declSlon to frame it.so inflexibly that it couldn't adjust to take account of
these particular equities.
Or it might be that I disagree with the way the law here resolves the
problem of exceptional situations, believing that it could have been crafted
to be flexible to take care of this case. Or it could be that I see the law here as
"unfair" in the sense that, taking the rest of the system at face value, it would
be better to change this rule. This rule might be an anomaly. (Later I will
take up the question of the rules about the judge changing the rules.)
Instead of any of lhese objections, imagine that I think the rule that seems
to apply is bad because it strikes the wrong balance between two identifiable
conflicting groups, and does so as part of a generally unjust overall arran?em_ent that includes many similar rul~s, all of which ought in the name of
JUStice to change. I mean to suggest a "political" objection to the law, and a
how-l-want-to-come-out that is part of a general plan of opposition.
Again, the experience of legality may well be different according to the
character of the "I want" that opposes "the law." All I insist on is this: it is
us_eless to dis~uss the conflict of "personal preference vs. law" without specifymg what kmd of preference we are dealing with.
?d~ocate. I a~
ll, mterpret ll,
H~re's
what I mean by my initial impression that the law requires a

outcome. Suppose there is a strike of union bus drivers going on
m Boston. The company hires nonunion drivers and sets out to resume
service. On the first day union members lie down in the street outside the bus
station to prev<mt the buses from passing. They do not disturb the general
flow of traffic, and they are nonviolent. The local police arrest them and cart
them off, b~t this takes hours. They are charged with disturbi~g the peace
and obstructing a public way (misdemeanors) and released on light baiL The
next day other union members obstruct, with similar results. The buses run,
but only late and amid a chaotic jumble. The company goes into fed..eral
court for an injunction against the union tactic.
When I first think about this case, not being a labor law expert, but having
some g~neral_knowledge, I think, "There is no way they will be able to get
away wuh this. The rule of law is going to be that workers cannot prevent
~articular
Journal of Legal Education
the employer from making use of the buses during the strike. The company
will get its injunction."
I disagree with this imagined rule. I don't think management should be
allowed to operate the means of production [m.o.p.] with substitute labor
during a strike. I think the,re should be a rule that until the dispute has been
resolved, neither side can operate the m.o.p. without the permission of the
other (barring various kinds of extraordinary circumstances). This view is
part of a general preference for transforming the current modes of American
economic life in a direction of greater worker self-activity, worker control and
management of enterprise, in a decentralized setting that blurs the lines
between "owner" and "worker," and "publiC:' and "private" entefprise.
My feeli~g that the law is against me in this-case is a quick intuition about
the way things have to be. I haven't actually read any cases or articles- that
describe what the employer can and can't do with the m.o.p. during a strike.
I vaguely remember In Dubious Battle, a Steinbeck classic I read when I was
16. But I would bet money that some such rule exists.
If there is a rule that the employer can do what he wants with the m.o.p., I
think it will probably turn out to be true that there is relief in federal court
(under the rubric of unfair labor practices?). If relief is available, I have a
strong feeling that the workers threaten irreparable injury to the employer,
so that he can show the various things,_ usually required to justify an injunc~
tion. But I also vaguely remember that federal courts aren't supposed to issue
injunctions in labor disputes.
There is lots of uncertainty here. I am not sure that a federal district court
has jurisdiction under the labor law statutes to intervene on the employer's
behalf when the local authorities are already enf?rcing the local general law
about obstructing public ways. I am not sure that if there is a basis for federal
intervention. an injunction is appropriate. I will have to look into all these
thi~gs befor~ I'm at all sure how this case will or should come out.
On the other hand, I am quite sure the employer can use the m.o.p. as he
pleases. And I am quite, quite sure that if there is such a rule, then the
workers have violated it here. I am sure that what I mean by the rule is that
the employer has both a privilege to act and a right to protection against
interference, and that what the workers' did here was interference.
Since the supposed rule of law that I don't like won't get applied so as to
lead to an injunction unless all the uncertainties are resolved, against the
workers, I do not yet confront a direct conflict between the law and how-lwant-to-come-out. But I already have the feeling of "the law" as a constraint
on me. It's time to ask what that means.
The initial apparent objectivity of the objectionable rule. I liSe the word
objectivity here to indicate that from my point of view the application of the
rule to this case feels like a nondiscretionary, necessary, compulsory procedure. I can no more deny that, if there is such a rule, the workers have
violated it, than I can d~ryy that I am at this minute in Cambridge, Massachusetts, sitting on a chau, using a machine called a typewriter. The rule
just applies itself. What I meant by interfering with the owner's use of the
m.o.p. was workers lying down in the street when the employer tries to drive
47
48
Critical Phenomenolof!:Y of judging
521
the buses out to resume service during the strike. I'm sure from the description that the workers actually intended to do exactly what the rule says
they have no right to do.
Note that this sense of objectivity is internal-it's what happens in my
head. But the minute I begin to think about the potential conflict between
the law and how-l-want-to-come-out a quite different question will arise.
How will other people see this case, supposing that the preliminary hurdles
are overcome?
Sometimes it will seem to me that everyone,(within the relevant universe)
will react to this case as one to which the rule applies. I imagine them going
through the saine process I did, and it is instantly obvious that they too will
see the workers as having violated the rule. If this-happens, the rule application acquires a double objectivity. The reaction of other people is an anticipated fatt like my anticipation that the sun will rise tomorrow or that this
glass will break if I drop it on the floor.
It is important not to mush these forms of objectivity together. It is
possible for me to see the case as "not clearly governed by the rule" when I do
my interior rule application, but to anticipate that the relevant others will
see it as "open and shut." And-it is possible for me to see it as clear but to
anticipate that others will see it as complex and confusing.
522
journal of Legal Education
a "technicality" having no apparent substantive r~levance (e.g., the statute of

frauds, a mistake in the caption of a pleading).
On a more substantive level, I could put my energy into researching the
issues of federal jurisdiction and the appropriateness of an injunction. 1-Jere,
if the, effort paid off, I might be able to move the law in a way favorable to
workers in general, even though the move wouldn't formally address worker
control over the m.o.p. during a strike.
'
But the strategy I want to discuss here is that of frontal assault on the
application of the rule that the workers can't obstruct the company'!! use of
the m.o.p. If this s~rategy succeeds, the result will be both to get the workers
off in this case and to accomplish my law .reform objective. There will b~ a
small reduction in employers' power to invoke the state apparatus, a change
that will be practically useful in future legal disputes over strikes. And the
mantle of legal legitimacy will shift a little, from all out endorsement of
management prerogatives to a posture that legitimates, to some degree,
workers' claims to rights over the m.o.p.
The next thing that happens is that I set to work on the problem of this
case. I already have, as part of my life as I've lived it up to this moment, a set
of intentions, a life-project as a judge, that will orient me among the many
possible attitudes I could take to this work.
It so happens that I s~e myself as a political activist, someone with the
"vocation of social transformation," as Roberto Unger put it. I see the set of
rules in force as chosen by the people who had the power to ma'ke the choices
in accm:d with their views on morality and justice and their own self-interest.
And I see the rules as remaining in force because victimized groups have not
had the political vision and energy and raw power to change them. I see
myself as a focus of political energy for change in an egalitarian, communitarian, decentralized, democratic socialist direction (which doesn't mean
these slogans are any help in figuring out what the hell to do in any particular situation).
What I see as interesting about the si~uation. as I have portrayed it up to

this point is that we are not dealing with a "case governed by a rule," but
rather with a perception that a rule probably governs, and that applying the
rule will very likely produce a particular (pro-employer) result. The judge is
neither free no,r bound. I don't see it that way from inside the situation. From
inside the situation, the question is, Where am L going to deploy the
resources I have available for this case? The issue is how should I direct my
wor;k to bring about an outcome that accords with my sense of. justice. My
situation as a judge (initial perceived conflict between "the law" and how-lwant-to-come-out) is thus quite like that of a la~yer who is brought a case by
a client and on first run-through is afraid the client will lose. The question
is, Will this first impression hold \lP as I set to work to develop the best
possible case on the other side?
Having to work to achieve an outcome is in my view funQamental to the
situation of the judge. It is neither a matter of being bound nor a matter of
being free. Or, you could say that the judge is both free and bound-free to
deploy work in any direction but limited by the pseudo-objectivity of the
rule-as-applied, which' he may or may not be able to overcome.
Given my general orientation, the work I am going to do in this case will

have two objectives, which may or may not conflict. I want these specific
workers to get away with obstructing the buses, and I want to move the law
as much as possible in the direction of allowing workers a measure of legally
legitimated control over the 'disposition of the .m.o.p. during a strike.
If my only objective were to avoid an injunction against lying down in
front of the buses during this strike, I would be tempted toward a strategy
that would allow me to avoid altogether the appa,rent legal rule forbidding
worker'interference. I could just delay, in the hope that the workers will win
the strike before I'm forced to rule. I c~uld focus on developing a new version
of the facts, and hope to deny the injunction on that basis, or I could look for
Isn't what I am doing illegitimate, from the standpoint of legality, right

from the start? One could argue that since I think the law favors the
company I have no business trying to develop the best possible case for the
union. But this misunderstands the rules of the game of legality. All
members of the community know that one's initial impression that a particular rule governs and that when applied to the facts it yields X result is often
wrong. That:s what makes law such a trip. What ~t first looked open anq
shut is ajar, and what looked vague and altogether ind$!terminate abruptly
reveals itself to be quite firmly settled under the circumstances.
So it is an important part of the role of judges and lawyers to test whatever
conclusions they have reached about "the correct legal outcome" by trying to
49
50
523
develop the best possible argument on the other side. In my role as an activist
judge I am simply doing what I'm supposed to when I test my first impression against the best pro-union argument I can develop.
If I manage to develop a legal argument against the injunction, the ideal
of impartiality requires me to test that argument in turn against a newly
worked-out best counterargument in favor of the company. Eventually, my
time will run out, and I'll just have to decide.
What would betray legality would be to adopt the wrong attitude at the
end o the reasoning process, when I've reached a conclusion about "what
the lawrequires" and found it still conflicts with how-l-want-to-come-out.
For the moment, I'm free to play around.
.The euphoric moment in which I conceive legal reasoning as "playing

around with the rule" doesn't last long. What follows is panic as I rack my
brain for any way around the overwhelming sense that if the rule is "workers,
can't interfere with the owner's use of the m.o.p. during a strike," then I
cannot do anything for the union. I am ashamed of this panic. It's not just
that I'm not coming up with anything; I also feel that I should be coming up
with something. It's a disgrace-it shows I lack legal re~soning ability. I feel
like a fool for trumpeting the indeterminacy of doctrine and claiming to be a
manipulative whiz.
As my panic deepens, I begin to consider alternatives. If I can't mount an
attack on the rule-as-applied, maybe I will have to research the earlier
contract between the union and the bus company. I have a strong feeling that
contracts are manipulable if one applies concepts like good faith, implication of terms, and the public interest, all relevant here. Maybe I'll have to try
to "read something in." But this approach is clearly less good than going
right for the rule itself.
Then I start thinking about the federal injunction aspect of the case, as
opposed to the labor tort aspect. I'm sure that the combination of the 1930s
anti-injunction Statute with federal court injunctive enforcement of at least
some terms in collective bargaining agreements (after Lincoln Mills? I can't
quite remember) must have made a total hash of the question of when federal
courts will grant injunctions. If only I could worry just about that, I bet I
could easily come up with a good pro-worker argument. But that move is
also less good than going for the rule.
Then there are the really third-rate solutions based on the qope that the
lacts will turn out to be at least arguably different than they seemed to be
when I first heard about the case, and that the company's lawyers will make a
stupid technical mistake.
All the while I'm desperately racking my brains. I think I have good,
maximS' for legal reasoning, but what are they? The rule represents a
compromise between two conflicting policies, so there must be a gray area
where the terms of the compromise are not clear. But this case seems clear.
There are always exceptions to the rule. But I can't think of any here.
Whm an idea starts to come, it just comes, little by little getting clearer, as
524
I work to tease it out, flesh it out, add analogies. Here it is:

Of course (oh, how I love to feel that reassuring "of course" "tripping off
my tongue at the beginning of an argument), it is not literally true that the
workers are forbidden from "interfering with the owners' use of the m.o.p.
during a strike." They can picket and use all kinds of publicity measures to
dissuade people tom riding the company's buses.
.
Here I begin to lose my grip again. Lying down in the roadway lS a far cry
from picketing, which doesn't interfere at all physically with the company's
use of the buses and is after all justified as an exercise of First Amendment
rights. This exception won't do me any good.
After more false leads and panic (I tty manipulating the concept' of
"owner" to get the wOkers a piece of the action, but that tactic just seems to
push me into the inferior implied contract route) I come back to my exce~
tion. The workers did lie down in the street to block the buses, but they d1d
not intend to and did not in fact use force to prevent them from rolling. After
all, they submitted peacefully to arrest. And the press was everywhere.
Obviously the worker on the ground could not have physically prevented the
bus from rolling, because it could have rolled right over 'him.
Still, on those two days of lie-ins the company failed to resume service in
the fashion it had planned. The workers did physically obstruct the owner's
use of the m.o.p. and were delighted to do so. The disruption wasn't just a
side effect.
On the other hand, maybe I can argue that the demonstration was a
symbolic protest, an attempt to (a) exert moral suasion on ~he c;o~pal}y by
impressing it with the extreme feeling of the workers and theu wllhngness to
take risks, their sense that the company is theirs as much as management's,
and (b) a gesture toward the public through the media.
.
I will emphasize the non-violent civil disobedience aspects: a phys1cal
tactic that could not in fact have prevented the use of the m.o.p. by the
company, artd submission to arrest.
I c~mld hold that because of these factors there should be no federal labor
law injunctive remedy beyond what is accorded under state law (narrow
version). Or that this demonstration is the exercise of First Amendment
rights, so that injunction of a nonviolent civil disobedient protest would be
an unconstitutional restriction of expression, even though it is of course
perfectly permissible for the state to arrest the demonstrators and subject
them to its normal criminal process (broad version).
By this time, I'm getting high. I have no idea whether this line of argument will work. I have even lost track of exactly how this argument can be
brought to bear in the employer's federal court action for an inj.undion.
(This is probably because I've gotten into an argument on the ments before
clarifying in my own mind what the basis of federal jurisdiction may be, and
before getting into the anti-injunction Wagner Act issue.) But I am nonet~e
less delighted. My heart lifts because it seems that the work of legal reasomng
within my pro-worker project is paying off.
What I've tried to do here is to turn this into a First Amendment prior
restraint (or at least a "free speech policy") case. I relied on the idea that there
51
52
Critical Phenomenology of judging
525
526
had to be some limit to the employer's freedom from interference, came up

with picketing by trying to imagine what the workers certainly could do to
him, and then looked for an extension of the picketing idea to embrace the
particular facts of this case.
Another way to put it is that I !'topped imagining the rule of "no interference" as the only thing out there-as dominating an empty field and therefore grabbing up and incorporating any new fact-situation that had
anything at all "sort of like interference" in it. I tried to find the other rules
that set the limits of this one, so I could tuck my case under their wing. Once
I identified those other affirmative rules (protecting picketing and other
First-Amendment-based attacks on the employer's use of the m.o.p.), I restated the facts of the lie-in to emphasize those aspects that fit (nonviolence,
submission to arrest, one prone body can't stop a Sceni cruiser bus unless the
Sceni cruiser wants to be stopped).
chattels" which says that the owner of a chattel can't use force to recapture it
from a person who seized it under a claim of right without using force.
Suddenly I'm w'ondering whether that means the employer would have to
sue in conversion and go through the whole ,trial before there would be an
order for return of the chattel, supposing the union got hold of it in just the
right way. And so on.
The minute I get rolling, new wrinkles occur to me. Maybe we should see
the lie-in as an appeal by union workers to the nonunioo replacement bus
drivers. It is they, not the union members, who actually stop the buses on the
street and fail thereby to carry out the company's plan to resume service. It
would be all right to try to persuade the nonunion replacements with flyers,
to picket them, to threaten them ~ith anger and nonassociation, to guilt trip
them and swear at them. The lie-in is just a small extension of those
tactics. It is a physical statement to them. Will this fly? I have no idea. It is
part of the brainstorming process, rather than a deduction of the rule that
covers the case. It is part of the work of producing lots of alternative ways at
the problem, hoping that one of them will break through. I am already
wondering whether it's even worth the time to pursue this approach further.
As I euphorically contemplate my "breakthrough" from panicked blankness into a swirling plethora of possible legal arguments, I come up against
a disturbing thought. By redefining this as a First Amendment case, I have
not abolished the old rule that once seemed to settle everything. I've just
limited its scope. It is still true that (except in these cases I've been
discussing) the workers can't interfere with the owner's use of the m.o.p.
during a strike. For example, I think, looking now for a core case that will
resist my First Amendment foray into the soft periphery of the rule, if the
workers went into the company's gax:age and physically appropriated the
buses, there would be clear interference of the type the rule was meant to
prevent.
Three reactions to this thought: (a) I'm disappointed that, fantasy aside,
my holding could do no more than chip away a little, though a little is not
nothing, al the owner's power. (b) Then I worry that the hypothetical I've
just constructed is the hypothetical I was afraid the lie-in might be-the
hypothetical in which there is just nothing you can do, because if the rule is
in force, it applies to the case in an objective, ineluctable way. (c) But then I
think, maybe I could unsettle this one too. Let's hypothesize some more
facts. And I have a crazy flash to the tort law doctrine of "recapture of
The question is not whether my initial off-the-wall legal intuitions tum

out to be right. They may eventually generate at least superficially plausible
legal arguments. But maybe it will turn out that the law is so well settled in
another direction that I will have to abandon them and try something else
the minute I get out Gorman o.n Labor Law and Prosser on Torts. Legal
reasoning is a kind of work with a purpose, and here the purpose is to make
the case come out the way my sense of justice tells me it ought to, in spite of
what seems at first like the resistance or opposition of "the law."
Resistance or opposition is the characteristic of the law when I anticipate
it as a constrain.t on how-l-want-to-come-out. But if my initial sense had
been that the law was "oq my side," it would be a resistance or opi:>osition
from the point of view of the company. I would e:cperience it as a protective
barrier I was building around my ppsition, perhaps, or as armor I need to fit
to my particular body so that the other side won't be able to strip it away or
penetrate it. If I had no sense of "which way the law goes on this," so that
each side had an equal opportunity to make a persuasive legal argument, I
might experience the law as a body of raw material out of which to "build
my case," or perhaps ~sa mass of wet clay that two opposing potters are each
trying to shape before it hardens.
The image changes according to how the law initially presents itself in
relation to how-l-want-to-come-out. But in each case I am suggesting that
one of the ways in which we experience law (not the only way, as we'll see) is
as a medium in which one pursues a project, rather than as something that
tells us what we have to do. When we approach it this way, law constrains as
a physical medium constrains-you can't do absolutely anything you want
with a pile of bricks, and what you can do depends on how many you have,
as well as on your other circumstances. In this sense, that you are building
something out of a given set of bricks constrains you, controls you, deprives
you of freedom.
On the other hand, the constraint a medium imposes is relative to your
chosen project-to your choice of what you want to make. The medium
doesn't tell you what to do with it-that you must make the bricks into a
doghouse rather than into a garden wall. In the same sense, I am free to work
in the legal medium to justify the workers' actions against the tompany.
How my argument will look in the end wilHl.epend in a fundamental way
on the legal materials-rules, cases, policies, social stereotypes, historical
images-but this dependence is a far cry from the inevitable determination of
the outcome in advance by the legal materials themselves.
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527
The metaphor of a physical medium does not help us solve the problem of
just how constraining the law is. All it does is suggest that we should' understand both freedom and constraint as aspects ,of the experience of workchosen project constrained by material properties of the medium-rather
than thinking in the back of our mind of a transcendentally free subject who
"could do anything," contrasted with a robot programmed by the law.
One might accept the notion that legal argument is manipulation of the
legal materials understood as a medium and still believe that the medium
constrains very tightly. An absolutely basic question is whether there are
some outcomes that you just can't reach so long as you obey the internal
rules of the game of legal reasoning. These would be "things you just can't
make with bricks," or silk purses you can't make with this particular sow's
ear.
For the moment, make any assumption you want as to how tightly the
medium constrains the message. Perhaps there is only one correct legal result
in most cases, or perhaps there are some results that you simply can't reach
through correct legal reasoning, or perhaps there will be a legally plausible
course of reasoning to justify :my result that you might want to reach.
What I want to ask is how, rather than how tigntly law constrains, when
we underStand it as a medium through which my liberal activist judge-self
pursues social )usuce. When we are clearer about this it will be time to ask,
first, whether it is ever (o'r sometimes, or always) possible i~ the last analysis
to have a conflict between the law and how-l-want-to-come-out, and, if so,
what the ethics of the conflict may be.
My model of constraint is that people (me as a judge) want to back up their

statement of a preference for an outcome (the workers should not be
enjoined) with an argument to the effect that to enjoin the workers would
"violate the law." We can't understand hQw this desire to legalize my position constrains me without saying something about why I want to do it.
First, I see myself as. having promised some diffuse public that I will
"decide acc.ording to law," and it is clear to me that a minimum meaning of
this pledge is that I won't do things for which I don't have a good legal
argument. (This statement says nothing about just how tightly this promise
constrains me as to the merits).
Second, various people in my community will sanction me severely if I do
not oHer a good legal argument for my action. It is not just that I may be
reversed and will have broken my promise. It is also that both friends and
enemies will see me as having violated a role constraint that they approve of
(for the most part), and they will make me feel their disapproval.
Third, I want my position to stick. Although I am free to decide the case
any way I want in the sen~e that no one will physically prevent me from
entering a decree [or either side, I am bound by the appellate court's reaction.
By developing a strong legal argument I make it dramatically less likely that
my outcome will be reversed.
Fourth, by engaging in legal argument I can shape the outcomes of future
528
cases and influence popular consciousness about what kinds of action are
legitimate-as here, for example, I can marginally influence what people
think about worker interference with the m.o.p. during a strike.
Fifth, every case is part of my life-project of being a liberal activist judge.
What I do in this case will affect my ability to do things jn other cases,
enhancing or diminishing my legal and political credibility as well as my
technical reputation with the various constituencies that will notice.
Sixth, since I see legal argument as a branch of ethical argument, I would
like to know for ,my own purposes how my position looks translated into
this particular ethical medium.
I might be able to achieve some of these objectives at least some of the time
without engaging in direct challenges to my initial intuition that th; law is
adverse. I don't want to be absolute about it, since I can conceive situations
in which I think I would go quite unhesitatingly for a "nonlegal" approach.
But there will be many, many situations in which it appears that, if I wish to
achieve my goals, the only )Nay or the obviously best way is to try legal
argument.
Note that I would have to do something even if I wanted to grant the

injunction. When I say that my first impression of the law is that it favors the
employer's case, I mean that I don't anticipate any 'difficulty in working up a
good argument for the injunction. I see that project as easy, as not much
work.
By contrast, deciding not to enjoin involves not just the work of pushing
pencil across paper to get down thoughts already well worked out before I
even begin, but the work of creating something out of nothing. This is a cost
of deciding for the workers, and it has at least two aspects: First, the work of
creating a good legal argument is hard, scary, and time-consuming. I have
limited resources in my life as a judge, and the workers are asking me to
allocate them here, when I could put them into some other hard case or just
spe'nd all my time on easy cases. My limited store of time and energy for the
hard work of creating legal arguments that go against my first impression of
what the law is constrains me from doing all kinds of things I could do as
judge if I weren't constrained.
I don't want this point to sound minor, because it isn't. There are lots and
lots and lots of rules I would like to change or at least reform. If I could do it
by fiat, perhaps I would do a lot of it, do it quite fast, and in a way that might
be called holistic. But if I have to generate a legal argument for every charige,
there is no way I can do a lot, do it fast, or do it holistically.
The second way in which I experience the law as a constraint in my

hypothetical is that it is one of the determinants of what we might call the
"legitimacy cost" o{ deciding for the 'Yorkers. Just as there are competitors
for my time and creativity as a legal arguer, there are also competitors
claiming shares of the mana or charisma or whatever that attends my position as a judge. I have leeways or, to put it another way, the mere fact that I
decide something makes people think it was legally right to decide it that
55
56
529
way. But there are limits to this legitimating power, and every case raises
them.
In our case, assume that everyone has the same initial impression that the
law favors the employer. If I decide for the employer, people who know that
this decision goes against my personal views may grant my _decision some
increased legitimacy. They may see me as more able to indicate what the
correct legal result is in the next case, because they believe I perceived and
followed the law in this one, even when I didn't like it.
This factor aside, no one will be able to say much about "what kind of
judge he is" from my decision to go along with the collective initial impression. Going along would be costless in terms of legitimacy. My legitimating
power is depleted or augmented only when I try to do something out of the
ordinary.
I imagine this effect to be a function of two aspects of the situation. The
first is the degree of "stretch" from our initial impression of the law to the
result I decree. The second is the impact on this distance-we might call it
the obviousness gap-of my opinion defending my out-of-the-ordinary
result.
The greater the initial perception of stretch, the more of my stock of
legitimacy is at stake. Of course, the very notion of legitimating power is that
I can reduce the perceived distance between what the law requires and what I
decree just by decreeing it. That is the nature of my institutional mana or
charisma. But' nothing guarantees that my legitimating power will cause
people to see this result as the one that was right all along. That outcome
depends on how grea~ the stretch was, and in my own case it is likely that the
stretch will' be much greater than I can overcome just because the president
of the United States has put some black robes on me.
If, my automatic legitimating power falls short of fully normalizing the
omcome, I will lose legitimating power for the next case-my stock will be
depleted-unless I devise an opinion (cast .as a legal argument) that makes
up the deficit, or even increases the stock. In order to make up the deficit I
have to write an opinion that,will convince the good faith observer struggling to understand what the law is that in fact my result was not out of the
ordinary at all. Rather it was a correct perception, albeit a minority perception, of what the law really required all along.
In other words, I can build up my legitimating power through instances of
persuading people through legal argument. If they have had the experience
of my "being right" before, experiences of my changing the~r view of the
law, then they will be susceptible in the future to believe what I tell them the
law is, quite independently of the argument I can muster.
The greater the initial distance between my proposed result and what one
would expett, the greater the positive value of persuading the observer
through legal argument. You will attribute power to me just in the measure
that you find yourself saying, "I never thought he could persuade me of
that!" Even if I don't persuade you, I gain power if you say, "He didn't
convince me, but I never thought he could get me to take the proposition
seriously, and here I am arguing hard against it!" On the other hand, if the
distance was small to begin with, persuading you that I was right in my
530
initial impression will do no more than very marginally increase my store of

legitimating power.
I also increase my power to the extent that my persuasive efforts spill over
from this particular case and cause -you to reassess other outcomes you had
thought pre-eminently legally correct. This is my ability to make my case a
"leading case" that will be cited over and over in increasingly distant reache:.
of law-space as the years go by. My name on that opinion is a help the next
time I have an unconventional view on the merits, because it has increased
my legitimating power even if in the next case I don't have much in the way
of an argument.
In this very mechanical model of law as a constraint on the judge, I find

myself in a situation, defined by my initial impressions of what the law is
and of how-l-want-to-come-out. In this situation, I have to decide how ~
want to allocate my energy among "caus.es," and estimate the consequences
for my project as an activist judge of deciding one way or another.
The constraint imposed by the law is that it defines the distance that I will
have to work through in legal argument if I des:ide to come out the way I
initially thought I wanted to. "The law" constrains in that it is an element of
the situation' as I initially experience it. It is the "field" of IllY action.
ttt
In describing the work of legal re!lsoning, I have thus far kept to the
drastically simplified situation in which there is a rule, a case tHat the rule
appears to cover, and a counter-rule that is initially beyond the periphery of
awareness. We need to complicate things.
In my previous examples I treated the rules as autonomous entities that
were there in my consciousness independent of cases. I think this. treatment
corresponds to the way I experience legal rules in real life. It is not true that
tHey are inductive derivations from cases or that" ~hey are predictions of what
the courts will do. They are much less than either of these: they are verbal
formulae I think I know to be "valid" (even though I am often not sure what
that means and always aware that my knowledge may turn out to be superficial) that are present like so many random objects floating around in my
mind.
One can get access to dozens or hundreds of them-such as "the workers
can't interfere with the m.o.p. during a strike" -without having to justify
them independently through any inductive or pragmatic process. They are
just things we learned in law school or from the newspapers or from reading
treatises or from reading cases. They are primary not derivative entities in
legal consciousness.
We cite cases as authority for rules. But we also use cases to fill in the
actual meaning of the rule when it is open to doubt. In other words, though
the rules exist independently of the cases, it is also true that some cases are an
essential part of our understanding of what the law of the field "is." This
means that decided cases are part of the medium I have to shape if I want to
make a persuasive legal argument that the workers shouldn't be enjoined
from lying down in front of the buses.
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The cases that are most obviously part o( the meaning of a rule, rather
than mere applications of it, are those we currently see as marking its boundary with a counter-rule. Suppose we have an earlier labor case in which the
question was whether there was a First Amendment right to mass picketing,
and the courts ruled that there was not, and that the activity should be
enjoined as an unfair labor practice or as a tortious interference with the
employer's right to use the m.o.p. during a strike. That case is "on the
boundary" if it is the "furthest" the employer's right has been extended and
the furthest the workers' right of expression has been cut back. If a mass
picketin? case were followed by a case holding that individual picketing is
also toruous, then that case would be the one on the boundary, if I perceived
individual picketing as at the same time less of an interference with the
employer~ property rights, and more plausibly a protected speech activity.
The process by which we arrange the cases into a pattern along the boundary! and also within the undisputed territory of one rule or the other,
should be understood as a gestalt process. When someone describes the cases,
I nonreflectively grasp them as arranging themselves into a particular
constellation. For example, I might just instantly understand that mass
picketing is more of an interference than individual picketing, and that a
lie-in blocking the street is more of an interference than either.
But it does not always happen that the cases arrange themselves for me
into neat co~s~ellations. For example, I might perceive mass picketing as
more of an mterference than individual picketing, but also think it more
rather than less deserving of First Amendment protection. After all, mass
picketing involves associational as well as speech rights. I might then find it
hard to arrange these two types of cases along the boundary between expressive and pr<~perty rights: maybe they occupy adjoining sectors of the
boundary?
The point of this discussion is that our new case, as it initially presents
itself to consciousness, is situated in a field that contains not only a rule that
appears to cover it (no interference with the m.o.p. during a strike) but also
many instantiating cases. These appear to establish the rule's meaning. For
example, if a case has established that you can't mass picket, then you
"obviously" can't obstruct the buses by lying down in the street.
In my initial example of legal reasoning, all I had to do in order to tuck
this case under the wing o the counter-principle of free speech was restate
both the free speech rule and the facts, until the first covered the second. But
if there are decided cases along the boundary I am trying to "move" through
restatement, I have to deal with theJ?l, unless my restatement of the rule
leaves them "undisturbed." I have to "move" them by restating their facts
and their holdings until they fit my new formulation of the general rule.
"Movement" is possible because these arrangements that seem so objective
as they initially present themselves to consciousness are not in .fact anywhere
near as solid as chairs or tables. It is a common experience that the constellation shifts or dissolves as one contemplates it. It is also much more common
with gestalts of this kind than with the dining room furniture arrangement
that you can persuade me, by mustering images and moral arguments, that
my initial perception was all wrong. Contrary to my first impression, you
532
argue, mass picketing is "really" more protectable than individual picketing. I hope to persuade you that, contrary to both our initial impressions,
the lie-in to block the buses was more worthy of protection than either mass
or individual picketing.
It may be usef~l, or at least amusing, to ~xt~nd the metaphor of the field in

order to distinguish between manipulating the facts of a precedent and
manipulating the holding. I imagine the facts of the case (I learned them
from the opinion or from somewhere else, such as a classroom or a newspaper) as defining t,he position of the case in the field of law. We may grasp
that position as close to a boundary line, or on it, or as so far within the
boundary that these facts seem "easy" and the general rule just "applies
itself" to them. Legal argument with the facts of the case means restating
them so that the case appears in a different part of the field than it did
initially.
Remember that my objective is to make my lie-in look like a case plausibly

covered by the rule permitting speech-type interferences with the m.o.p.,
rather than like a case clearly governed by the rule of no interferences with
the m.o.p. Suppose that a mass picketing case has already gone against the
workers. My first impression is that the lie-in is "even worse" from an
interference point of view, and simultaneously "weaker" as a speech,case. l
will try to restate the facts of the mass picketing case to make it reappear in
the field as more of an interference than the lie-in, and as less plausibly a case
of protected speech.
I will do this by emphasizing that, in the mass picketing case, the court
found that the workers were trying to physically prevent substitute workers
from enterin~ the plant, and that the situation was always on the verge of
violence. I will de-emphasize the opinion's references to the signs and
shouted slogans of the mass picket. By contrast, I will argue that the workers
in the lie-in submitted peacefully to arrest, and could never have physically
prevented passage of the buses by lying in front of them.
My hope is that you will eventually perceive the two cases as located in just
the opposite position from that you saw them in initially, so that I can draw
the boundary between rather than around them. Mass picketing will then
fall on the side of interference, the lie-in on the side of speech.
Changing the position of a prece.dent in the field is, as I've been describing
it, analogous to changing the position o the case before us-the lie-in. But
the analogy is misleading to the extent that the precedent, unlike the lie-in,
comes already equipped with a holding. This complicates matters
considerably.
If the facts. of the precedent are on the boundary, then its holding is part of
the boundary. The holding is a rule, or at least a little sub-rule, defining, in
the abstract manner of any rule, a range of cases beyond this particular
instance of mass picketing. These cases "in the vicinity" or "close to on
point," along ,with any future fact-situation tqat might be "on all fours"
withit, are "settled" by the precedent. In other words, the holding of a case
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structures the field around the point represented by the fact situation of that
case.
I must be able to restate the holding as well as the facts of the mass
picketing case if I want to reposition my lie-in case with respect to the
boundary. The work of restating the holding is closer to the work of restating the general rule than it is to that of repositioning a fact-situation. For
example, after I've restated the facts of the mass picketing case to emphasize
forcible interferences with passage of substitute workers into the plant, I may
want to restate the holding too. I will play down the original opinion's
claim thllt because this was "action" it can receive First Amendment protection only if it was "unequivocally symbolic." I will claim that what the
court prohibited was coercion of substitute workers, rather than an attempt
at persuasion. This statement of the holding will make it easier to restate the
general rule to include nonviolent civil disobedient lie-ins under the rubric
of protected expression.
We might think of the holding of the case as a line extending through the
point represented by the facts. The line defines a set of cases that the holding
has resolved one way or the other. When I redefine the holding, I inflect the
line in some way, changing its direction so that it "covers" a different set of
hypothetical situations. Thus, when the mass picketing case becomes a case
about "coercion vs. persuasion," it helps define the boundary between
forbidden and permitted union activity differently than it did when it was
about how "action" is unprotected unless "unequivocally symbolic."
The inflection of the line is desirable because, once I have done it, I won't
have to spend a lot of time explaining how the lie-in is "unequivocally
.symbolic." I can admit that it is "action." My (much easier) argument will
be that it is clearly persuasive rather than coercive action. Further, my new
holding for the mass picketing case makes a nice little piece of the new
boundary I am drawing between First Amendment cases and interferencewith-property-rights cases. Mass picketing is not closely analogous to
nonviolent civil disobedience, now that we've identified it as problematic
because "coercive." So there is no inconsistency in forbidding it while tolerating lie-ins.
Extending the field analogy yet a step further, we can use it to incorporate
the "broadening" and "narrowing" of holdings into our analysis. Narrowing
the holding, by restating it as a rule that depends for its application on many
potentially' idiosyncratic details of the particular case, is a shortening of the
line that extends through the fact-situation in the field. It means that there
will be fewer hypothetical fact-situations "covered" by the holding, and the
case will therefore have less structuring effect on the field around it. Broadening is the opposite maneuver.
Policies as for.ces in the field. Policy arguments are reasons for adopting a
particular holding or mini-rule. They are aimed more specifically than
philosophical or social theoretical justifications of whole systems and more
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abstractly than appeals to the raw equities immanent in "the facts." Policy
argument is "second order" in relation to rule application or argument from
precedent. It presupposes conscious choice about how the structure of the
field should look, as opposed to simple subsumption of the facts to a norm
that I grasp nonreflectively as part of a gestalt.
The arguer can pick and choose from a truly enormous repertoire of
typical policy arguments and modify what he finds to fit the case at hand.
The arguments come in matched contrary pairs, like certainty vs. flexibility,
security vs. freedom of action, property as incentive to labor vs. property as
incipient monopoly, no liability without fault vs. as between two innocents
he who caused the damage should pay, the supremacy clause vs. local initiative, and so on.
A policy is not invalidated just because I ignore it in a case where it
arguably applies. Our rough notion is that the two sides of the matched pair
"differ in strength" from case to case. We might see the property-asincentive-to-labor argument as very strong if the issue is whether there
should be any private rights at all in mechanisms of interstate commerce, but
as quite weak if the question is whether there should be a right to prevent
peaceful individual picketing of an interstate bus company involved in a
laboniispute.
The moment when I switch from one of the matched pairs to the other in
response to a change in the fact-situation can be q.uite dramatic. In this case,
I might firmly believe that the interests in security and peaceful access to
public spaces strongly support state law criminal sanctions against the liein. I might then turn around and argue against a federal injunction of the
lie-in, on the ground that people should have a right to non.violent civil
disobedient protest, even if it inconveniences the public and the employer,
and that repressive measures will make violence more rather than less likely..
In a typical legal argument, polides are elaborated and strongly asserted
without regard to their matched pairs. When I argue for state law criminal
penalties, I don't have to explain, either as judge or as advocate, the rational
basis of my endorsemellt of "nip it in the bud" here, and my contrary endorsement of "repression breeds violence" when we get to the injunction. In a
sense, then, the practice of legal arguers (lawyers, judges, treatise writers) is
endlessly contradictory. I asser~ my policy as "valid" and as "requiring" an
outcome, and then blithely reject it, and, in the next case, endorse its
exactly matching opposite, without giving any meta-level explanation of
what keys me into one side or the other.
From the inside, however, I know from the beginning that this is just'"the
way we do" legal argument. r'dorl''t take the surface claim that the policy is
"valid" and "requires" the outcome seriously at alL I work with a model of
the opposing policies as forces' or vectors, each of which has some "pull" on
any given fact-situation. They seem logically contradictory (how can I
believe, at the same time, that "there should be no liability without fault,"
and that "as between two innocents he who caused the damage should pay")
or so indeterminate that they can serve only as after-the-fact rationalizations
of decisions reached on other grounds (who knows whether the injunction
will "nip violence in the bud" or "just drive it underground and make it
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worse"?). But there is a sense in which both policies are valid at the same
time, _in every c~se. The question is which one turns out to be "stronger," or
to we1gh more m a "balancing test" applied to these particular facts, rather
than which is correct in the abstract.
~e.can represent the process of arranging cases in a field, and the process
of hxmg a boundary between permitted and forbidden acts, in terms of this
i~agery o_f v~c~ors an~ b~l~ncing. F~r example, the imaginary mass picketmg and md1v1dual p1ckeungcases d1scussed earlier had fact situations and
holdings, but they also "'involved" or "implicated" various policies. The
mass picketing case implicated the general social policy in favor of political
association and the general social policy against the use of force to resolve
disputes. (Each case implicates as many policies as I can plausibly think up.
Those mentioned here are illustrative, not exhaustive.)
Suppose we see the lie-in, in relation to mass picketing, as a "better" First
Amendment case, and as a less serious interference with the employer's use of
the m.o.p. during a strike. The "second order" interpretation of this intuitive orderirr~ ~s that pro-speech policies apply more strongly, and proproperty pohoes.less strongly, than in the mass picketing case. As we move
from fact-situation to fact-situation across the field, the speech policy gets
weaker, and the property policy stronger, until at the boundary they are in
equilibrium. At this point a very small change in the relative forces of the
policies produces a dramatic change in result. We "draw the line" and treat
cases beyond the line repressively.
What t.his means is that we have to,add to our model of the field of law the
notion that, at every point in the field, contradictory policies exert different
levels of fprce. Bo4ndafy lines in the field represent points of equilibrium of
oppo~ing forces. At poipts not on boundaries, one or another set o{ policies
predominates. The policies are to be understood as gradients; they are
strongest in the "core," where a given general rule seems utterly obvious in
its 'application and also utterly "approp~iate as a matter of social policy."
The argument set supporting the general rule diminishes in force as we
move from the core outward toward the periphery, and ultimately to a boundary with another general rule.
. !he ~oundary appears to me as "there" in three quite different ways. First,

1t
1s a hne, a rule that was implicit in the s,tatement of the general rule. For
ex~mpl~,_I m~y see ~he idea that there shall be no laws ag~inst "free speech"
as 1mphcttly mclud1!lg nonverbal expression. Second, fhe boundary is a line

runmng, through all tqe limiting cases. Suppose that individual but not
mass picketing is all right; that threats of nonassociation with substitute
workers but not threats to call deman<,l notes are all right. The boundary
:connects th~ do~s.".Third, as we have just seen, the boundary is like the 'lire
~~ a magneuc held formed by in~n filings exactly balanced between two
distant magnets. State law criminal penalties against a lie-in are desirable
a_nd ~on't vi~late the first amendment, but the addition of a federal injunct~on ~s ~ndesu_able and would be unconstitutional, say, becaus~ the injuncuon 1s Just a ltttle bit "too much."
536
We have already discussed legal argument as the restatement of general

rules and the re-selection of facts so that a case th~t initially appeared
"covered" by rule A turns out to be covered by rule; B. And ~e have discussed
the-manipulation of the facts and holdings of precedents tq redefine the
,boundary. My goal in policy argument is analogous. First, I develop a potential holding for my lie-in case, such as that there shall be no federal injunction of nonviolent civil disobedient protests in labor disputes. Then I
develop some policy arguments as to why this rule is preferable to an a)ternative (usually a straw man) or to the rule proposed by the employer. For
example, I argue that if the workers feel strongly enough to undergo arrest
and criminal charges, they almost certainly feel strongly enough to do something violent if they are not permitted their symbolic protest. !t follows that,
far from "nipping violence in the bud," an injunction will likely lead to
unorganized individual acts of violence, su~h as shooting out bus tires on the
open highway.
But this argument is unlikely to be enough. Once I have taken the step
into the "second order," forsaking the strategy of mere rule application, I
evoke in the mind of my audience the whole force field of this area of law. I
will now have to take steps to preserve the coherence of the overall policy
"picture." This means restating policy arguments in other decided cases. For
example, suppose that in the mass picketing case the court justified a
prohibitory rule on the ground that unless you nip violence in the bud it
develops until it is unstoppable.
_My problem is that in the lie-in case I am arguing that worker anger makes
it important to tolerate civil disobedience, and this position seems inconsistent with a "nipping in the bud" strategy against mass picketing. In order
to restore order to the field, I will "disting\Iish" the mass picketing case as
follows. Mass picketing is essentially uncontrollable and naturally tends to
escalate toward violence. In the civil disobedience case, by contrast, the
police exercise detailed and intense control. Though the initial emotion may
be greater in the lie-in, the setting allows the release of emotion without
escalation. Since the situation is ~lreaay under control but still serving to
release emotion, an injunction is likely to be counterproductive overkill.
[Let me remind the patient reader that I have no idea whether the
preceding policy arguments and distinctions are "any good," that is,
whether they would be persuasive to a person a little knowledgeable in the
field. One begins the work of legal argument envefoped in ignorance of what
the law "is" and with little sense of what may be the conventional wisdom
about how the law works in practice. I will fi,nd out about these matters by
doing research and by asking people. In consequence, I'll flatly abandon
some arguments while I develop others. What I am trying to d.o here is
describe what the work process in its initial stages feels like from the
inside.)
The boundary can be cast either as a rule (a determinate outcome on easily

determined facts) or as a standard (ad hoc judgment required) applying a
value, like good faith or reasonableness, or an abstraction, like foreseeability
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or promotion of competition. When the boundary is cast as a standard

argument that a particular fact-situation meets, it will often look a lot like
policy argument-may indeed merge by degrees into it. There are "formal"
arguments for rules and for standards, against rules and against standards.
These are policy arguments about the appropriateness of using a rule or a
standard in the particular case.
Social and historical stereotypes. These are part of the stock in trade of legal
argument. By a social stereotype, I mean, for example, the raw image of
"worker blocks bus"-an unshaven large burly white man without a tie or
jacket aggressively obstructing i'nnocent third-party passengers (us!) who
have to sit passively until someone comes to their aid. I might reverse the
stereotype by expanding the time frame of the story, a Ia Kelman, and adding
lots of facts, until we get "bus monopoly's intransigence finally breaks
patience 9f Job-like toilers." Historical stereotypes are ideas like "the nineteenth century was a time of agrarian individualism so it was natural for
people then to accept the doctrine of caveat emptor."
Overruling. If policy argument is second order in relation to mere rule

application, overruling is third order. Without question there are some
circumstances in which, as a federal district court judge, I can redraw the
boundary between permitted and forbidden conduct without restating the
facts of cases, so that cases find themselves fooking a~ a boundary where
once they were looking at home, and looking at home across an open space
where once tJtere was a boundary.
There are maxims about overruling. The district court, a trial court,
should be less quick to do it than an appeals court. It is more permissible to
overrule a doctrine riddled with except~ons, and consequently more honored
in \he breach than in tbe observance, than to overrule a vital modern
doctripe that dominates its field like a young Mars. And so forth. There are
cases in which a course of law reform has become the norm, so that not to
overrule a case would appear an abuse of discretion. (Suppose that the
Supreme Court had upheld separate-but-equal public playgrounds facilities
after desegregating schools, P.Ublic accommodations, government offices.)
Whe!l I first began thin,king about this subject, the possiblity of overruling
seemed a dramatically important aspect of the judicial activist's situation.
Indeed, it seemed to mean that there is no such thing as a conflict between
"the law" and how-l-want-to-come-out, since I can change the law by overruling to make it correspond to my heart's desire. On further reflection, this
has come to seem a shallow view.
First, though overruling is a third order practice, it is nonetheless subject
to the calculus of legitimacy l have been describing. I can't overrule with
impunity any more than I can disturb the field with impunity in any other
way. The set of maxims by which the overruling decision will be judged are
pretty vague, but if the decision isn't convincing, I will find myself less able
to persuade the next time around and feeling guilty about violating role
conscraints.
Second, my power to overrule, seen as a kind of ultimate power to reorder
the field, is counterbalanced by the notion of legislative supremacy. I can't
538
"overrule" a statute. But the statute fl:lay be trumped by the state and federal
constitutions, of which I am interpreter here. But though I can use the
constitutions to overrule the statute, I have no power to overrule the constitutions themselves. But even this is not the end of the story, since the constitutions don't seem, a priori, to be any more conceivably self-applying than
any other set of legal norms. Many great cases branch down from the sacred
texts, and these I can overrule.
The upshot of these twists and turns is that I decide aboutoverruling
enmeshed in the field of law, subject to its typical constraint that I argue
persuasively across some perceived obviousness gap, or forfeit my charismatic power and get reversed on appeal into the bargain. It is an added
power; it enhances my freedom to make the law correspond to how-l-wantto-come-out beyond what it would be if I had alwaysto work in the first
order of rule application or the second order of policy argument. But it
liberates me as a technological innovation might liberate a worker in a
medium-as, say, the invention of new casting techniques changes the
possibilities of sculpture. New techniques bring new constraints along with
new possibilities. They change as well as reducing the experience of
constraint. It becomes hari:ler than it was before to say with authority what
can and cannot be done in the medium. But the overruling option does not
make the judge all-powerful.
Typical field configurations. As I initially apprehend it, a legal field is

more than just a collection of general rules, boundaries, precedents, and
vectors. I will almost certainly experience it as patterned, as a field with a
particular configuration. Of course each field is different from every other
one. But in the gestalt process by which we grasp it, we employ-albeit
nonreflectively-what we miglit call "configuration-types." We get a cognitive grip on the particularity of a given field by relating it to one or more of
these types, distorting it in the process.
We can loosely array configuration-types according to how impacted they
are. By this I mean that some fields seem to offer more opportunities for one
kind or another of legal argument than others. Here are my candidates,
beginning with the type that seems to offer least opportunity for overcoming
whatever the initial distance may have been between the law and
how-l-want-to-come-out.
The impacted field. In the impacted field boundaries are long straight
lines, meaning that there are general rules determining the limits of general
rules. For example, we might have a rule that "protected speech," must be
either speech or the dissemination of written texts. The ':Curther we go"
without making exceptions (e.g., we uphold censorship of a dance performance with obvious political content, or of a mime show) the longer the
straight boundary line. In the impacted field, there are a substantial number
of cases distributed in a regular pattern along the boundary, dispelling any
doubt that the rule means what it says. Thedance and mime cases have
actually been decided.
Moreover, the courts deciding them did so with holdings that carefully
incorporated the cases under the most general statement of the general rule,
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in the process reaffirming all the earlier cases along the line, while
predicting that at points in between the decided cases the courts would
adhere to the existing pattern. Behind the lines, there is a nice scatter pattern
of easy cases, and they get easier and easier as you approach the core, all in
accord with the gradient hypothesis about social policies. This pattern
makes it hard to imagine "parachuting in," so to speak, with a surprise case
permitting peacetime national security censorship of a newspaper editorial
criticizing the government.
When I apprehend the field as impacted, I apprehend it as hard to manipulate. Those long straight boundaries, reenforced at regular intervals with
precedents whose holdings exactly track the line, will defy the arts I have
been describing. My initial sense will be that, unless I can do my work on the
facts of the lie-in itself, I am going to be in trouble. But remember that we are
?~t _speaking of ~ctual,, objective properties of the field, but rather of my
mxtlal apprehens10n of it.
When I set to work, for example, at reading a lot of those cases I vaguely
remember, everything may change. I haven't yet tried to restate the rules and
cases and policies in a serious way. My initial impression, that the field is
impacted, is as much a product of my initial fear that I won't be able to come
up with a viable legal argument for the lie-in as it is a cause of that fear. If
you wait a minute, the field may suddenly look a lot different, as happened
above when I finally began to see a way to tuck the lie-in under the wing of
the First Amendment.
The case of first impression. Sometimes the field presents itself as struceverywhere except in the vicinity of the case at hand. The boundary
lme IS vague throughout the area of the lie-in; no precedents appear nearby;
and, significantly, the policy vectors seem to be of about equal force, not just
along a thin line of ,equilibrium, but throughout the border region. If the
vectors are about equal and also relatively very strong, it is not just a case of
firs( impression, but a "great" case. If the vectors are weak, then it is the
routine case of penny-ante judicial creativity.
If the field has this structure, but the lie-in seems to fall outside the area of
indeterminacy, a basic argumentative tactic is to restate the facts to put it
t~ere. This changes the:situation from an adverse one, in which rule applicaU<:>n seems to settle things against me, to a neutral one, in which everyone
Will concede that there are good legal arguments on both sides, and the
whole proceeding has the air of a solemn sports event.
The impacted field and the case of first impression represent constraint
and freedom as they are conceived within the legal tradition itself. The case
of first impression does not threaten that tradition because the freedom
involved. is, first, exceptional, and, second, freedom constrained by its
narrow context. The case is a kind of clearing of freedom in the endless forest
of constraint. Because,we exercise freedom where there is no constraint, it
doesn't threaten constraint. Moreover, the judge's action fills in a part of the
clearing, so that the freedom of cases of first impression can be understood as
self-annihilating. The more times judges exercise ~his freedom the less of it
there will be, as the boundaries get staked out case by case.
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The following configuratioh-types differ from bot!t the imP.acted field and
the case of first impression because of their ambiguity. Rather than presenting themselves either as hopeless (constraint) or as open (freedom), they
present themselves as opportunities whose ultimate meaning we will fix
through the work of argument.
The unrationalized field. Imagine that there are lots and lots of cases in the
general vicinity of the boundary, some coming out for the workers and some
for the employer. But they are decided "on their facts," with minimal argumentation and narrow or conclusory or obviously logically defective holdings. Just because there are so many cases clustered around the boundary,
there are many, many occasions for rearrangement by restatement of facts.
This will be especially true where there are lots of details available for each
precedent (so the res tater has free play in selection) or almost no details at all
(so the res tater can dismiss the case as ambiguous). A field of this kind invites
an opinion proposing a new rule and showing how all the old cases, properly understood, are consistent with it. Because the earlier cases are unrationalized but numerous, the exercise may be particularly convincing as "order
out of chaos," and a great relief to the audience. Or it may fail miserably,
leaving things more disorderly than they were before.
The contradictory 'field. This is the situation in which there are lots of
cases on both sides, but the company has won some that seriously impair free
sgeech, and the workers, have won some that seriously impair employer
control of the m.o.p. during a strike. The courts have prohibit all picketing, say, but have permitted unlimited secondary boycott activity.
In a situation like this, connecting the dots so as to draw the'boundary
requires a zig-zag line th;t cuts deep first into one territory and then into the
other. Each opinion fully restates the policy vectors so that it looks as though
the outcome is "required." But the result is that a given policy appears to
vary widely in force at points that are near each other in the field.
These rapid fluctuations a,long a contorted boundary suggest that "something is wrong." The boundary between strict liability and negligence in the
law of unintentional tort has much this quality. Cases that openly impose
strict liability are only part of the picture (though, as every law student
knows, it is hard to decide what is an "ultrahazardous" activity, given the
precedents and the ambiguous definition). There are also so-called "historical" instances, as with animals and nuisance. There are situations such as
res ipsa loquitur and the manipulation of informed consent in which the
courts impose de facto strict liability behind a screen of fault rhetoric. And
courts interpret the reasonable person s"tandard to permit liability without
fault, right next to cases in which they "individualize" "the standard to
prevent that outcome.
There are lots of arguments for strict liability and lots of arguments for the
fault standard in these cases. The problem is that if one took the arguments
in any of the cases seriously, one ould have to overrule dozens and dozens of
cases based on the opposed policy in the matching pair. Consequently,
67
68
541
almost any case can appear to be of first impression, since virtually all cases
seem to fall midway between cases decided for strkt liability and cases
decided for the fault standard. Instead of a field divided in half by a straight
line that represents an equilibrium of forces, we have an extremely complex
structure shot through with interstices. There really is no boundary. Every
point not occupied by a recent precedent is contestable.
The collapsed field. A field collapses, in this lingo, when the policy arguments on one side of the boundary get restated so as to abolish the boundary.
One of the contending general rules then appears correctly applicable across
the field so as to obliterate the counter-rule.
Collapse is usually an event quickly recognized to threaten the whole
enterprise, so the collapsing argument is not just "accepted." Rather it is
there as a possible, plausibly legal, incontestably legitimate and sometimes
highly persuasive argument in every single case. On the other side are ad hoc
appeals to factual peculiarities, arguments harking back shamelessly to a
more innocent time, mistakes, intuitionistic protests against collapse, but no
coherent argument for a line that would hold against the collapsing
argument.
In Shelley v. Kraemer, if enforcement of discriminatory covenants is state
action, then the private sphere "disappears," since all private arrangements
are dependent for their structure on enforcement of private law ground rules.
In Wickard v. Fillburn, if wheat grown for your own consumption affects
interstate commerce by reducing demand, then it is hard to see what activity
can ever be "intrastate." In Pennsylvania Coal v. Mahon, Holmes points out
that all police power regulations "take property" in the sense of impoverishing some, but proposes to solve the problem only an incoherent test of
"how much taking." In Hoffman v. Red Owl Stores and Drennan v. Star
Paving, the court allows a promissory estoppel recovery where there was no
gratuitous promise and indeed no consideration problem of any kind. There
was merely a failure to comply with the formalities that indicate intent to
make the promise binding. If promissory estoppel applies in such cases, it
potentially abolishes formalities in any case where there was reliance.
The loopified field. The notion of loopification makes people uptight,

and since it's not that important here, I'll just mention it briefly. We apprehend the field as loopified when supposedly easy cases in the heartlands of
the territories of the opposing rules seem closer together (around the back, so
to speak) than cases that are opposite one another along the boundary.
For example, the inti~ate relations of family members arc simultancouslx
those that seem most clearly private (e.g., as .described in Griswold v.
Connecticutt or Roe v. Wade) and those that, because of their implications
for the public weal, are subject to the most intense and intrusive state regulation (as in the standardless determination of child custody in the "best
interests of the child"). Or take promissory estoppel, which now applies
most typically to a business transaction in which there has been a failure to
comply with formalities and in which the measure of damages may actually
542
be the expectancy. This core promissory estoppel case is hard to distinguish

from the core case in which, according to the traditional wisdom of, e.g.,
Baird v. Gimbel, the doctrine simply has no applicability at all.
I hope, as I begin research on the lie-in case, that the field will present
itself in a somewhat disordered configuration-as unrationalized, for
example-~nd I fear that I will confront an impactrd field, with my case
firmly planted behind "enemy lines." One goal of legal argument is to recast
the field so that it will end up looking impacted, but with the lie-in case now
securely where it ought to be.
If the field looked well ordered for me initially but at the end of the
argument the field looks contradictory, I have lost ground, even if I am still
quite plausibly presenting the lie-in case as one that has to be resolved for the
workers. On the other hand, if I begin with an unfavorable impacted field
and end up with a plausible case of first impression, or a plausible case in a
loopified field, I have done quite w~ll.
The reason you want to end up with an impacted field (with your case
favorably placed) is that the impacted field's orderly boundaries, its neatly
disposed precedents, with their congruent holdings and smootp policy
gradients, is the very image of legal necessity. If you persuade your audien~
that the field is like this, the audience will see the decision-maki!lg pr9c<;ss as
a simple exercise in rule application. The case will "decide itself."
By contrast, a case in a contradictory field, no matter how plausibly preseqted, can't seem necessarily to come out your way. The chaotic configuration of the contradictory field-no matter where you are in tJ:le field there are
cases all around that come out all different ways-is a symbolic representation of contingency dressed up to look like necessity. This may be a relief,
given how bad things looked to start with, but it's never the ideal end of the
argument about this case.
Remember, though, that this case is n6t the whole story. In my role as a
liberal activist judge, I have long-term goals with respect to the configuration of the various fields I work in. For example, suppose that I can decide
the lie-in case for the workers if I emphasize one aspect of the facts but in the
process will reenforce a boundary in the field that I see as congealed injustice. My goal of law reform may be to collapse that boundary-say by establishing that there is no a priori distinction between worker rights in the
m.o.p. and ownership rights-so that the concept of ownership cannot
define a core of employer prerogative that must remain immune from worker
meddling during a strike.
I may be willing to sacrifice something in the way of total convincingness
in this particular lie-in case in order to disorder the field. Maybe I will
emphasize the extent to which the holding of my lie-in case conflicts with
holdings in the long string of picketing cases, so as to create a consciousness
of discontinuity that will induce workers and their lawyers to expand the
lie-in into a deep salient extending toward the core of the employer's property rights.
69
70
Critical Legal'Studies
543
Just as I have multiple objectives in constructing my argument, I have

multiple materials and a variety of different kinds of moves I can make with
each element in the field. As I set about the task of argument, these possibilities generate a rough sense of an economy of the field. By this I mean that
there are systems of trade-offs between desired objectives and between the
different kinds of moves I can make with the materials available to me. For
example, I just described a possible trade-off between making the most
convincing possible argument against an injunction in this particular case
and my long-term goal of destabilizing the rule that the workers can't interfere with the owner's use of the m.o.p. during a strike. Trade-offs at the level
of goals are executed through decisions about which elements in the field to
manipulate and how much. These are strategies of execution of a given field
manipulation.
A strategy is a set of choices between, say, distinguishing a given case by
restating its facts and distinguishing the same case by restating its holding.
Or between distinguishing all picketing cases from the lie-in on the basis
that the lie-in is civil disobedience, and distinguishing the lie-in from mass
picketing on the ground that it's noncoercive, while emphasizing its
similarity to individual picketing.
The notion is that there is a rough relationship of substitution between
different manipulative moves. I have a choice between dramatically
redrawing a boundary and dramatically restating the facts of casesso that
they appear on the other side of an unmoved boundary. Moreover, choices
between moves in one part of the field-or with respect to orle element, say,
precedents-influence and indeed constrain the choices that are available in
other parts of the field.
r have been developing through the preceding discussion a particular
strategy for arguing against an injunction of the lie-in. Some elements of the
strategy are: the choice of a First Amendment general defense of the action;
the choice not to attack state law civil and criminal penalties short of injunction; the choice to distinguish mass picketing cases as coercive rather than as
"not speech," and so on. It seems obvious to me that there must be other
possible strategies, tqough for the moment the only one that comes to mind
is that of using the Wagner Anti-injunction Act.
One of the effects of adopting a strategy is a kind of tunnel vision: one is
inside the strategy, sensitive to its internal economy, its history of trade-offs,
attuned to developing it further but at least temporarily unable to imagine
any other way to go.
But a strategy is also a practical commitment. Because it hangs together,
the strategy imposes multiple constraints on how I respond to any ,new
aspect of the case. It's not just a matter of logical consistency: the strategy has
a tone and a style. For example, hard-nosed nip-it-in-the-bud rhetoric about
mass picketing will be in tension with repression-just-makes-it-worse
rhetoric in the lie-in, even though ther~ is no logical problem. Moreover, a
strategy is an investment of time. Once I've put in the work of developing its
many interlocking parts, it will cost me plenty if I respond to a new question
with an answer that would force revision of everything that's gone before.
544
In legal argumen,t as in other production processes, prac~itioners h,av~ an

intuitive idea of efficiency in the deployment of_ the ava1lable -~~tenal~;
'J\nyone who has done legal argument knows w~a~ 1t means to do ~t peatly
or "elegantly," me~ning at a minimum expe~dltl.~re of ... s~methmg._A part
of this complex notion is that if you are mamly m~er~sted m ':"~o ~ms ~he
particular case, you should persuade us that the lie-l~ 1s nonenJomable w1th
the least possible restatement <!_f the facts and hordmgs of other_ cases, the
least possible .rearrangement of policy vectors, and the least _posstble movement of tht:_ boundary between free speech and interference \}'lth property. IJ,
by contrast: you want to "make some law," you should do th~t, ~oo, so as to
accomplish the greatest possible movement of the_ boundary wuh the least
possible disturbance of the other elements of the held ..
A kind of quotient notion emerges. Success at the skill of legal argu~ent
can be measured by how liule you disturb the field in orde~ to persuasively
achieve a given restructuring, whether it 1s <f big restruc~unn? throug~ law
making or a small one by making sure the good guys wm th1s ca_se. Its the
ratio rather than the-absolute amount of movement or of disturbance tllat
counts.
ttt
My uncertainty about whether I will succeed in making a convi~cing
argument. Up to now I have pre'sented the activity of argument as a kmd of
work undertaken in a medium, with a purpose. The p~rpose w~s. to
convince the audience that, contrary to our initial impressiOn, a 'dec1s10~
denying an injunction in the lie-in is in accor~ with t~e law. I undertak~ t_hts
argufuentative labor with a number ? u_ltenor mouves,_ suth as avmdmg
reversal on appeal, fulfilling my obhgauen to the_ pubhc: ~nd s~ forth._ I
hope that by developing a convincing argument agam~t the mJunctiOn_I :-".111
avoid a loss of credibility as a judge (indeed, I hope to mcrease my credtbthty
through a strong opinion).
.
There is an ideal scenario in which I am able to represent the legal held so
that the law corresponds exactly to how-1-want-to-conie-o~t: What was
initially an impacted field with the lie-in ~nequ_ivocally pr?lu~ued (~n easy
case) becomes, to the surprise of my pubhc, an Impacted _h~ld m wh1ch the
lie-in is a case that is clearly permitted (or at least not enJomable). I close a
large obviousness gap by a field manipul_a~ion th~t is n?tably elegant:._~
dramatic change in outcome with surpnsmgly httle disturbance of th
elements of the field.
way, I feel e~~ Iwna,
m
d ee d a mo ment
When my reasoning turns out this
.
dangerous
omnipotence,
delight
at
the
plastiCity
of
tl~e
natural/soo~l
(
0
fi~ld-medium, and narcissistic ecstasy aCthe favorable reacuon of my _pubhc
(not to speak of sober joy at all the good I will be able to _do wnh my
increased credibility). But before you put me down as an egotist, ~ wa~~ to
add that some element of this pleasure is quite legitimate. I had ~n mt~IUOn
about the justice of the situation-how-l-wanted-to-come-out m thi~ case
was in accord with an intuition that the law as I initially apprehended It was
71
72
546
545
.
kinds of uncertainty is that I can never
The consequence of the~e d1~:~~ent ssible to develop a legal argument for
know in advance whether 1t W1 e po d
art of my audience. Somehow-l-want-to-come-out tha~ will persu~ e an~ PI never break through my
times, the problems are obv1~us. fro':s~ ~h:t~~rkers can't possibly win. It
initial panicked sense that th1s 1S a ch
h
can't possibly win emerges
.
h
s that my sense t at t ey
.
d I"ke a promising course of argument.
someumes appen
slowly as I pursue what at h~st seeme 1 .
against the brick wall of the
Sometimes it'.s le~s _dramauc than ru:n~~gi~iurns out that I can make an
experienced ob~e~~tvtty ?f l~~.e::::.::!.;actually convince many people; or
argument that 1S plaus1b .
h I
s a lot more favorable to the
audience that t e aw 1
that I can convmce my

f
ble as to prohibit an.injuncuon
workers than they thought, but not so avora
ith a field-manipulation
.
1 'II
1 action I may come up w
of th1s parucu ar 1 ega

.
that wQUldn't convmce me
.
I msy or just plam wrong-one
1'
that smkes me as c u .
. h h. k will appeal to this pubb 1c as
for a minute of anythmg-but wh1c 1 t m
I will describe below some of the ways things don't turn out ideally. But
first dwell for a bit on my uncertainty, as I begin my argument, about what
will happen during its course. I have an initial estimate, a guess about how
large the obviousness gap is, about the resources I will have to marshal in
order to overcome it, and about the chances that I will fall short to one degree
ot another. But why can't I tell in advance the more or less precise dimensions of my problem, the means at my disposal, and the quality of my
solution? I don't know why. But here is how I don't know in advance.
.1/
,,
,I
II
II
I
/I
I
ll
---
unfair to a particular group. If I have succeeded in making the law fairer to

that group, my pleasure will be in part an altruistic emotion that seems to
me no cause for shame: I will have helped out. Too bad it doesn't always
turn out that way.
Projection. I may have misjudged the way the field will look to other
people. I'm trying to persuade not only myself but also some hypothetical
public. But I have to construct their way of seeing it on the basis of my own
vision: It often happens that the field looks to me at first glance at least
unrationalized and very possibly contradictory, while others see it as at least
close to impacted. In other words, I know I have a bias, measured by the
vision of others, toward seeing the field as undetermined, as unstructured,
as open to all kinds of manipulation. Remember that my initial apprehension of the configuration ~f the field is a gestalt process, very firmly located
in the eye of the beholder, yet dependent on stimuli that are external. Other
people seem to me to see the field as always impacted, and adversely at that,
until they have put an inordinate amount of pain into loosening it up.
Virtu. The skill of legal argument is to close a big obviousness gap with
minimal disturbance of the elements of the field. It is the skill of combining
the different moves-restating facts and holdings and rules and policies and
stereotypes-in such a way as to achieve multiple goals at minimal cost.
There is no way to be sure you will be able to do this the nelj:t time you try.
How much you can change the field through argument is a property of
yours, that is, it is determined by your skill, as well as a property of the field,
but the property of yours is unknowable in advance. There is such a thing as
a good day and such a thing all a bad day. Internal psychic factors like
adrenalin, panic, fatigue, but also. internal factors that seem random, or
psychoanalytically knowable after the fact, all impinge. Life is a gamble,
here as everywhere else.
Hidden properties. My initial apprehension of the field doesn't tell me
that much about it. An analogy is my initial apprehension of a body of water
through which I am going to navigate a boat. I can see the surface of the
water but 4sually not what lies b~neath it. Yet lots and lots of signs on the
surface indicate what is beneath. Some people are terrific at "reading" the
surface; others_not so good. But no matter how good you are at reading, th~re
is lots that just isn't knowable in advance. In legal argument, I have no way
of kno~ing with any precision what is contained in the hundreds of cases I
haven't read that might be relevant to my problem, or in the thousands of
other legal materials scattered across creation waiting to be put to use here.
73
highly plausible.
.
t I don't have and I know I
h
.
h
rse of events as contmgen
.
h h. gh degree of certainty w at
I expenence t e cou
don't have, a techni~ue ~or pred~ctm1 ;~~fl;ct ~etween the law and how-lwill happen to my hrst 1mr~~~~:u~ the actual posture of the l~w by going
want-to-come-out. I can on y Wh '1 it's happening, the situauon seems to
through the work of ~rg~~ent.f
1
outcomes none of which would
open toward a muluphctty o ~oss1 e
,
violate any strongly held theoreucal.~e:ets.
\1
0_
.}
bl o re resent what happened as the

When I've finished, I may be a ef th I p " hen I began. But I won't
f tl e "state o t e aw w
a it did. In particular, if I fail to develop
necessary conseq~ence o l h
really. know why It turned out t. e w y . . nction of the lie-in, I won't know
a plausible legal argument agam~ ~ns~~{~ in manipulating the field o~ that
whether the reason w~s that I~a~. eld" were such that there was nothmg I
I doomed from the start?
the "inherent properues of t e le
could have done. Did I screw up, o~ was
bout the failure. Next week
I am not in a condition of total Ignorance a ment against enjoining the
1 wyer may produce an argu
. d
another JU ge or a
.
d d' 1 thefelt objectivity of the rue,
1 at
lie-in that is highly ~lauslble, an ISSO ~:s I will say to myself, with a lot of
least as applied to this case. If that happe 'r 'I
f skill rather than some( 1 t week was a a1 ure o
.
confidence, that my al 1ure as
f th field Or 1 may discover a
.
d d by the latent structure o
e
. .
thmg preor ame .
I tt mpts to argue the case convmcmg1y
whole series of earher unsuccess u a e h
f I fter all
s not so s arne u a
f 1
and conclude that ~ny. at ~rewa.
with the sense of radical contingency
h I
ldn't do I learn that
Knowledge of tins kmd IS consistent
. I
WI n someone else does w at cou
I am assertmg tere. . te k'11
d there is suggestive evidence in the
my failure was a failure o. s I , an conse uence of the properties of the
failure of others that my failure was a. .
that there was just no way to
f ld But,it isn't possible to prove convmcmg y
le .
.
it can't be done.
make It fly. You can. t prove . . . I
ehension of the objective coverage
I have had many umes the lll1Ua appr
74

547
of a case by a rule. I have many times started out thinking, "no way." And I
have had many times the experience of apparent objectivity dissolving under
the pressure of the work of legal argument. I have no theory that tells me in
advance when that will happen and when it' won't. I just have to try and see.
When it doesn't work, sometimes someone else can do it. And sometimes I
come back to the problem later and succeed where before I seemed to fail
through no fault of my own. From the inside, what happens to my initial
experience of the rule as objective is radically contingent.
I can imagine what it would be like to be able to tell in advance whether or
not the rule's objective self-application will stand the test of time and effort. I
can imagine having a technique, like the technique of a surveyor, say, that
would tell me with great confidence that if I extend a bridge's span at a
particular angle in a particular direction it will eventually hit the other side
of the ravine at a predetermined spot. But that's just not the way it is in legal
argument, at least for me. And in all honesty I have to say that people who
think differently have, in my experience, turned out not to know what they
are talking about.
(The quantitative question. It seems irresistible to ask at this point some

such question as, "How often will the field be impacted or otherwise
unbudgeable through legal argument(" If tqis is a question about the experience of a particular judge or group of judges, then it is at least intelligible.
We could devise an empirical investigation into that experience, perhaps
through interviews about past cases. We could even attempt an historical
inquiry, based on more diffuse and suggestive data, into how the experience
of judging has changed through time. Some of my own work is in this mode.
I would venture the hypothesis that experiences of the manipulability of the
field have become steadily more common in American history since 1776.
But I don't think the question is usually asked with this kind of answer in
mind. It is a question about the nature of the field, about an objective
property of the legal materials in use in a society at a particular moment in
its historY,. That there can be no answer to the question posed in this way
seems to me implicit in what I have already said.
The field is unknowable excepl'through experience, and there is no "value
neutral" perspective from which we can assess the "correctness" of a report
of immovability. Whether judges have the experience may vary with how
hard and how often they try to manipulate the field when it initially appears
impacted. It may vary with the critical techniques available in their legal
culture to dissolve the initial appearance of objectivity. It may change
according to the quantity and the particular quality of the flow of cases they
adjudicate, and according to whether they must habitually consider cases
from many autonomous jurisdictions.
It is probably overdetermined by all of these things at once, and by many
other aspects of judicial reality as well. One of these aspects is probably the
extent to which judges learn in law school to anticipate that socially
constructed systems of meaning, and particularly law fields, will be open to
multiple interpretations. If we decided to "count" experiences of objectivity,
we would have to decide what counts as an instance. But there just isn't any
548
.
od I f the "juge moyen sensuel" to use
"natural" set of assumpuons, any m _e ~ I f ld re "really" like. The
as a standard in dett:rmining what parucu ar aw Ie s a
. .
s simply unanswerable.
.
quanutauve quesuon ~
bod of le hnaterials "itself," considered m
What then can be said of the
y
.ga.
. h articular judges expeisofation from the particular contexts, wlthmt ~~;~ev~ that the field is ever
.
.?N
ch we have no reason o
.
nence It
ot mu :
e of the failure of parucular
unbudgeable otherwise than ~s a consequen~t assert the contrary either: it
judges to find a way to budge It. But we;. can~
i~movable because it was
may be true that a given field was exper~ence as
immovable, and that's all there was to It.]
ttt
The normative power. of the field. Through:;~~~~s ~!~~~!oonu:~nt~~:
point, I have spoken as a Judge wh~ knows hodw Sometimes I apprehend the
.
to bring the law mto accor .
.
.
resistant or even adamant, but
vigorous1Y trymg
law as plastic and cooperauve, so7et11J1~~ a:ame It Ys now time to critique
me and my favored outcome ar~ a 7aysr d~ality. First, however, let's reify it
the how-1-want-.to-come-out po eo ou
with an acronym: Hlw.TCO.
h that comes into the
HIWTCO is not a datum given externally, soll}et .mg
. .
. the
.
IWTCO is relative to the fzeld. This IS true m
picture from outside. H .
WTCO in response to a question posed in
weak sense that I have decided I:II
h . 1 des law I don't want these
terms of the existing social umverse ~ at me ~
und~r a articular set of
particular workers, ~i~ing in our P_aru~ul;r s~~~~ven form~late HIWTCO
I 1 rules to be enJomed from lymg-m. ca
.
;~out referring to this legal conte~~!o give that result a meanJng.
a m u ch more
B t HIWTCO is relative to the law f Ie ld m
. interesting
h . and
. 1
t~atinght~e-!a; [~e~~~\~h~~;~~: ;:;~:a~io~:~y
im;rtant way. I've_ been

medium, day or b_nck~, w e~ w a Iarlier me) about how ethically seriOus
other people (possibly mdu~mg _an e f
fl. t As I manipulate the field, I
people ought to respond to Situauons o c~n IC
ntl addressed to me,
am reading and rereadi~g these dec~rau~';:~t;p::;~tt: do. Indeed, before
ahd trying to absorb their messages a out
I d cable about hundreds of
I ever heard of'this case, I was a~~ad?' lknow ~o~ll how 'to handle conflicts
opinions by judges and lawyers an egis a tors a
roughly analogous tO this o~e.
h t e are not dealing with a confronAs a preliminary matter thts. meanbs t a hw
e" and the law unless we
.
b
"my gut feehng a out t e cas
,
tauon etween "gut" as an organ d eep1y con ditioned by existence inour
d
d
un erstan my
.
.t. ns about social 1ustice that are
. d
1 imply don't 1tave mtm to
.
legahze umverse. s
f h . d
and legislators have done m
independent of my k?owle~ge o w at JU gesme Other actors in the legal
. zled and instructed me,
the past about situatwns hke the o~e before
, l hold is "really"
system have influenced, persuaded, outrag~d,_ P';l;
until I can never be sure in what sense ~n opmwn s;~~:~ ~as an answer.
mine rather. than theirs. I don't.eve? tl~nk ~uc~n~~~ impression o conflict
But the more important pomt ts t _at y b
HIWTCO changes,
between the law and HIWTCO may dtsappear ecause
75
76
Critical Phenomenology of ]udginf5
549
as well as because I manage to change the law

of the l~w to change in the direction of HIWTCbu;:e~, the very resistance
change m the direction of the law I
f d
y Impel HIWTCO to
o_f the materials that my initial ap~re~~si~~ o~~self persuaded by my study
fmd that I now want to come out the w
. I~TCO was wrong. I may
coming out. This is what I me b h
ay I I_mually perceived the law
an y t e normauve power of the field
Studies
Critical
I try to move the law in the direction of HIWT

law is resistant 1 find HIWTCO d
CO, and to the extent the
neither HIWTCO nor the law ~-nl;r pressure_to mov: toward the law. But
"pressure" as I read through the l;e al are P?~si<:l obJects. If I experience
apprehension that the law favors t~ mat~na s, If the very fact of my initial
the field is a message rather th
e e~p oyer ~xerts pressure, it is because
familiar with, a message of a kin~~ a ~ mr I_t IS a message of a kind I'm
the authors of the message.
ve ea t with before. Indeed, I am one of
. Prec~dents come to me as stories called fact si
.
.
m particular ways. What they di.d .
. tuations that JUdges resolved
.
.
.
mterests me m the wa
work might interest a later painte B .
.
y an ear1Ier painter's
II
r. ut mterest IS too weak
d E
cia y when they are put togethe .
a wor . spethat it would have taken me I r m ~atterns, precedents reveal possibilities
a ong time to come up "th
h
.
.
WI . or t at I might
never have come up with at all I 1 k
"Oh, th~y devised a strategy ~f b~~ni~t SIX ou~com_es, and I say to myself,
about any kind of secondary boycott H g alii picketmg, but allowing just
. . .
mm. wonderwhy Oh I t. h
h a d a rough distmctwn between h . II
.
.
, ge It, t ey
~actics. Or maybe they were cdnce~n~~:~t~ confron.tive and nonconfrontive
m the boycott cases, and worried aboutth _wor~ers. freedom no_t to contract
nations if they banned labor
b"
. e Implications for busmess combicom Inauons "
Just studying these patterns may chan .
.
my mind going in directions that it other~i::v~e~b~c~use the study will set
is also the elemental normative ,
f
u n t ave taken. But there
identify with. Because I think t:ower o any outcome reached by people I
whatever they came u with h ~y ~ere up to t?e. s~me thing I am up to,
as m _uhs favor my Initial sense that it's probably what I would havpe co
me up wit too.
.
I place my lie-in in the field amon the
interference than for exam I . dg. "d vano~s precedents, as more of an
.
'
P e, m IVI ual p1ck t
1
analogical weight of the precedents

II
e mg.. mmediately, the
"the law" would I
pu s me toward wantmg to come out as
lave me come out "Giv
h I
werq up to, by inference from the w~
en w at k_now about what they
Y_the~ came out m those cases, I think
they would have come ou.t as foil
out that way then I should
ows ~n t IS case. If they would have come
'
come out that way t00 " Th
.
IS IS the hrst order

normative power of the field.
The second order normative

f
.
that all these judges (and other~o~::e olef~h: field comes f~om the fact
of fact-situations and outcomes The wr s m~r~ than JUSt a record
normative explanations of outco.
by fote opmlOns full of overtly
There are hundreds of particular s:;s y re berence to rules and policies.
ements a out why we should come out
550
in a particular way under particular circumstances, sometimes very particularly defined circumstances, but sometimes how we should come out in large
classes of fact situations quite abstractly defin~d (e.g., the workers can't
interfere with the owner's use of the m.o.p. during a strike).
NC\w the practice of recording outcomes for fact-situations, along with
messages about why those outcomes are ethically and politically and legally
correct, is no great mystery to me, since I do it all the time. I know first-hand
what it means to try to indicate for the future how some future dispute
should be resolved, and I have a good idea of what it is like to succeed. The
person you've tried to influence says to you something like, "I had this
problem, and I wondered what you would have to say about it, so I looked
up your decision in the X case, where you gave your theory of what disruptive tactics labor should be permitted to use during a strike, and I found it
very helpful. In fact, you might sar.'Yhat rdid in theY case was try to apply
your theory. Of course, you may think I botched it completelyY
I believe that it is possible to record messages about liow to deal with
future situations which will be intelligible to actors in the future, that it is
possible for those actors to set out to "follow" the messages or directions, and
that sometimes they do actually do something that is well described as
"following the message." I sometimes feel that the people who S$!1 down all
these messages that together make up the field had in mind something like
the case before me and intended- to instruct me to resolv~ it in a particular
way. They are telling me not only that.this is the rule they would apply,
and here's how to apply it, but also that it is the right rule, that it is the way I
ought to come out.
The.second order normative power of the field comes from the fact that I
identify with these ought-speakers. I respect them. I honor them. Wpen they
speak, I listen. I even tremble if I think I am going against their collective
wisdom. They are members of the same community working on the same
problems. They are old; they are many. They are s,teeped in a tradition of
serious ethical inquiry whose power I have felt on countless occasions, a
traditipn that seems to me a partially valid great accomplishment of the
often cruddy civilization of which I am a tiny part.
It is no good telling me that my reverente for the messages of these

ancients is "irrational." It's not a question of rationality. When I read their
words, it is as though I mysel( were talking. (bf course, when I'm reading my
own earlier opinions, it is me in an earlier incarnation who's talking.) I am
not able to treat their ethical pronouncements about how to decide cases like
this one as though they were a set of randomly generated possible answers to
a math problem. In that case, I test each answer "coldly," so to speak
without any investment at all in its correctness or incorrectness. But as I sit
reading the messages of the ancients about cases like this one (or even, I may
;SOmetimes feel with horror, about this very case neatly anticipated), I can't
remain neutral. I want them to agree with me. And I want to agree with
them. I feel I ought to agree with them.
In this state of mind, I may find myself adopting the voice of the ancients,
knowing what they are talking about when they exto! the sacredness of
77
78
Studies
Critical
551
owner's rights and feeling that what they are saying accurately expresses
something that I think too. I set out to manipulate the field so that the law
would favor the lie-in, but in order to do that I have to enter into the
d~scourse of law. In the process, I have to undergo its intimate prestige. I
discover that I know what they were talking about because I myself am
capable of thinking just what they thought. At that point, the normative
force of the field is just one side in an interior discussion between my divided
selves about who really should win this case anyway.
Who is the field'! The messages that constitute the field are on one level
~ust a set of verbal formulae. On another, they are speech I imaginatively

Impute to the "ancients." On a third level, the resistance of the field is
a_n~ther name for my ambivalenc~ about whether or not I should enjoin the
he-m. To the question "who is the field," the answer has ultimately to be
that the field is me, resisting myself.
!t.
C~nversio~. is possible that I will resolve my ambivalence by adopting

the held as I Imually apprehended it as a correct ethical statement as well as
a correct perception of what the"law is. In other words, I will find that I no
longer want to come out against an injunction, but rather that my intuition
of social justice is now that an injunction ought to issue, just as I initially
thought the law required. But this is only one of many possible modes of
interaction and ultimate equilibration of the law and HIWTCO. Here are
some of the other possibilities.
I move the law and the law moves me. The outcome may be a modification
of HIWTCO that brings it into accord with a new view of the field, one
substantially different from my initial apprehension. Such a compromise
m~ght involve conceding that these workers went too far, though the law
will not enjoin all lie-ins. Or it might involve not enjoining these workers
but conceding that my initial pro lie-in position went much too far, so the
workers better not' take the next step they appear to be contemplating.
A compromise, like restatement of the law to correspond to HIWTCO, or
conversion of HIWTCO to correspohd to the law, has the peculiarity of
resolving the initial perceived conflict. But this may not happen. The law
may .move me, and I may move the law, but the two may end up still in
conflict, albeit less in conflict. It's also possible that the normative pull of
the field. willlea':e me c:;onfused or ambivalent, where I had earlier been quite
clear about HIWTCO. Or the reverse might happen: a vague sense of
HI':VTCO ends up clarified through the imagined dialogue witp the
ancu;nts. As always, from inside the practice of legal argument the outcome
is radically indeterminate.
, How it sometimes doesn't work. What I have just described might be

called the counter-ideal to the scenario in which I manipulate the law-field to
correspond to HIWTCO. Here, the law field manipulates HIWTCO, stimulating first ambivalence and then perhaps outright conversion to the other
side. But the field is no more necessarily normatively powerful than I am
552
necessarily manipulatively powerful.

.
. .
To have normative power, the field must pres.ent I_tself as ~bJecuvely
favoring an outcome. Since normative power resides m the vOice of the
ancients, which is also just the voice of my ambivalent other half, I mu.st be
ble to "read" the field in order to feel its,power. The field must present Itself
:s at least somewhat impacted, rather than as unra~ionali_zed, .c~llapsed,
contradictory, or loopified. What I mean by those conhgu~auons 1~ JUSt. that
1 can't integrate the cacophony of ancient voices int~ a smgle vOice with a
message. The disordered fields may influence me m the sense that after
exposure to them HIWTCO changes in one direction or another. But they
are not exercising normative power, by which I mean the power to persuade
me to a view you are trying to persuade me to.
But even supposing I have a sense of how tl,te Ia~ com~s out w~id~ I can
contrast with HIWTCO, it does not follow that the held will exerCise norll!ative power. The message I apprehend as "the law" is a~ several rem9ves from
a conviction of my own about what I want to do. It IS a message I have to
decode rather than a thought immediately accessible to, me inside my own
mind (without making too much of the mediate/immediate distinct~o~).
There will always be an element of mystery as to whose message 1l Is,
whether I have properly understood it,.whether it is "applicable" here at.all.
Until I "make it my own" and begin to argue the side of the law agamst
HIWTCQ, the message hovers between the life I can give it and the status of
dead formula.
The message is from the past, from people who put it together in th: Ra,st
(including my past self, if I was involved). Even lf_l can understand It and
enter into it, it is yesterday's newspaper, queer-lookmg because so much ?~s
happened that it doesn't and couldn't take into account. The message th~t ~s
the field was not developed by a clarivoyanvas a message to the fut~re; It ~s
the product of judges deciding cases and writing opinio~s to deal w1t,h theu
problems, though. with all' eye toward the shape of the held fo~ fut~re cases.
The way we constructed the field dates it and thereby depnves 1~ of the
normative bite it would have if it spoke in the voice of someone lookmg over
my shoulder as I study the facts of the lie-in.
The message was. composed by other people, though I may have played a
small part myself. I conceded that just about any message I can understand
will have some normative power, if it is a normative message. That I can
understand it at all means that there was another person out there thinking
about this problem, with that degree of community with me ~hat ~ere
personhood alone is enough to establish. From thaL commu~al Idenuh_cation, however limited it r;nay be, comes the power to move me JUSt by saymg
"you ought to do thus and so." But there are othe~s and there;, are others:
I will interepret the field as a message from parucular others of a partiCular historical moment, and, ps l particularize, I may find myself less and less
convinced. The architects of the law of labor relations applicable here were
turn-of-the-century conservative state court judges and New Deal reformers.
79
80

Critical
553
I have mixed feelings about both groups and about the legal structures of
Which these by-ways of labor law form a part. At least, my own evaluation of
the message and its senders seems to have a great effect on how and how
strongly I feel it. Moreover, there are other pulls beside the normarive one
that I know are there but whose individual contributions to the force field
around me are indistinguishable, at least as I initially experience them.
Influences on the relation between HlWTCO and the law other than the
normative power of the field. I have been describing how I ultimately want
to come out as the product of an interaction between my evolving apprehen, sian of the law field and my intuition of social justice. In my experience, this
interaction is partly a series of events that is happening to me. It is also
partly a series of events that I am making happen through my interpretive
construction of the field, which powerfully affects its normative power. But
it turns out that my initial intuition of justice under the circumstances is
' open to other influences than only the normative power of the field.
I consult my "gut" against the background of my situation as a judge. In
that situation there are definite advantages and disadvantages to a rapprochement between HIWTCO and the law as it now appears to me. I have
interests in agreeing with the law and interests in maintaining my disagreement. I worry that these are powerfully m~difying what the outcome would
have been in their absence-what it would have been had I dealt only with
an intuition of justice and a law field capable of exercising normative power.
I also worry about their status: are these influences that should be resisted
or that should be treated as legitimately normative in the same way the voice
~f the ancients is legitimately normative?
Tf\e'principal influences against merging HIWTCO into whatever! think

the law may be-the principal sources of non-normative resistance to the
normative pdwer of the field-are the psychological cost of conversion and
terror of the disaster of false conversion. On the other side, the principal
non-normative i~fluence pushing HIWTCO in the direction of what I see as
the law is fdr that I won't be able to develop a plausible legal argument for
my position, with attendant unpleasant consequences no matter what course
of action I undertake.
I am going to discuss these various cost and benefits as influences on
HIWTCO-that is, as constitutive of my experienced conviction about the
proper outcome. This is odd. It might seem more appropriate to discuss costs
and benefits as elements in my decision about what to do, when and if it
appears there is an irreconcilable difference between the law and HIWTCO.
Indeed, all these costs and benefits o'f divergence will again become relevant
;it the point when "I" have to choose a course of conduct. nut I want to take
'them up here as elements constituting HIWTCO because I believe that they
impinge first at this unconscious level-eliminating or , exacerbating
conflict, rather than setting the terms of its resolution.
These costs and benefits also influence my apprehension of the law. It is
imp6rtant, now that we are in the phase of relativizing HIWTCO,,not to lose
Studies
81
554
k of the extent to which I constitute the field, both through my inter~~
~~~on of its configuration and through the work of legal arg~r:~~~r th:
~estalt procfess off intehrprte~aftli~~s:ngrde:h~i~:~~:~a'::~~:~~tb~of~rcedinto an

mfluence o my ear t a 1
d
f I
ntenable corner of civil disobedience or craven surren~er, or unh erg~ a se
u
.
choice to see the field as, say, contradictory rat
t an
conversw~.
of my CO
mterest m
impacted many unfavorabl e way WI'II be in parta .product
.
eing it that way, given my fear of a sharp confhct wnh HIWT
.
.
se
~r
~s
.
I don't want to be converted to the
I
The costs of converszon.
b view that
ld 'oin the lie-in. My initial opinion that there should e no ltJJu_ncas soon as it occur..s to me I hold it
f
true self Like a collection of knick-knacks, my opmwns, alon_g wn.h
o my
. rk m family, area store of treasures I don't want to gtve.up.
y moreover, is bound up with the ritual of agreemg,
blicly with others' about issues like thts. Other people _se~ me as a J?~rson
holds articular kinds of views,
they like me or
me
y ?n
that basis
lamentable such superficiality ?n theu part .may be). I m
dependent on their good opinion. I I change my VIews, some wtll reg~rd me
. Ied or stupt.d, a fluff-head or, an opportumst.
as a turncoat as weak-wtl
f
bl
.
Those wh; tend to favor management aren'tli~ely t~ form avora .e opm.
h t ill make up for what I lose by conversiOn, smce they won t know
tons t a to
w trust me. Sull
. worse, perh aps, Is
. m y sense that
whether
. those whob holdh the
I'd
. 1 mi ht convert to-that the injunction should tssue-are a ~me
vtew
. . When I think of myself as one of them, I shrmk from
hate, as o fgnow, to JOm.
my imagined turncoat self.
f h
Le al ar ument, in which I take up and work with the message, o t e
field gand r!aybe end up espousing it against my current
osi:ion looks like working in a nuclear plant at the n~~ o ra tauo?
It looks like fooling around with heroin: you .thmk you; have It
under c~ntrol and one morning you wake up already addic~ed. You ve gone
from one (go;d) state to another (bad) state without ever havmg a moment of
h
~ioonuis i:n~haracter:
m~;:~:~ ~~en~ity
~~o
(~owever
de~r ~san emanau~m
~nd
~tshke
par~
cor~ect a~d v~r.tu?us
~ckness,
choice about it.

.
h
h w forced from
I think this fear of being converted without c mce, s~me o
. h I w It
one's own view into another, is deep in almost ev:ryo?,e 1~volved ~It a
.
. ded people to ask things hke, Will law
leads progress1ve-mm
scbwo 1 warp
11
. d?" Or to assert that they think something is legally ngh~ ut tota y
my mltln .
Or that law is made-up noise that reinforces thmgs as
mora y wrong.
. .
(
h
h "t'
are, so 1t
. ' s no t worth the trouble to argue. wtthm Its t~rms even t oug 1 s
. ulable) when the facts cry out for dtrect mor~ resp?nse.
..
if in contemplation I admit that the
mtght be .to a
view" I still don't want it to happen. Just because Its a better v~wb do~s~o
mea~ that moving to it is painless. I don't want .to be con;erte '. now
believe in the possibility of progress in my own views. I bf~l;ev~ tht~n~ been
that I used to think were stupid, and I think I'rn beu~r ~ I ~r lavi fear of
through the process of enlightenment, however pam u . o my . terconverswn
1s
.
. q ualt"fi.ed by my longing for truth and for change and m
esting conflict.
t~ey
ma~~n
conversi.o~
bett~:
u:
82
Critical
555
. I may still be deeply influenced against the normative power of th I

field by the fear of false conversion. Maybe what looks l'k
e _aw
legal m
I
T
.
.
I e a very compelhng
. . ora uu Hanan, pohtical argument against HIWTCO has a flaw a
mile wide. ~aybe the company's lawyers even know it does and rna be I'
be suckered_ mto
it because I lack constructive as' well as
~rgum;nta_uve abthty. (~might be great most of the time but have screwed up
ere, espite my previous record.) If this happens I will e
.
momenta
1
f
.
xpenence a
db
ry p easure o conversion (with attendant mild pains) f 11
a subsequent devastating awakening to my own mistake then h' 0 .l?W~ .Yf
I chan
db
umt Iatlon 1
ge my mm ack, and shame if I find myself unable to adm. t
and forced to persist in pretending my new wrong position is ri~h~y error
My sense
.
Iate It
. agamst
.
f h that
f I'd better hold on tight to HIWTCO msu
the
~wer o t e teld, IS strengthened by my knowledge that it's not only norma
uve
that's
in p 1ay h. ere. Th ere IS
somethmg
. pure and cutely idealisticb power
I'
.
a out Isten~ng to the ancients because one thinks what they have to sa
~.eo~ value_m one's search for the ethically correct resulL But suppos~ ~:~
b;:: b r:n mto a f~l~e ~o~version not by earnest openness to enlightenment
.
y y opportumsuc Interest in avoiding controversy? I resist th
uve power of the field in
b
.
e normafield.
part ecause I distrust my own construction of the
~~lieving
~iti~~
Reas~ns for changing f!IWTCO to correspond to the law (other than the
power
of the f zeld) I t s not t h at a dtvergence
.
(normatzve

between HIWTCO
no IOJ~~cuon) and the obvious legal solution ("of course the em I
get an InJunction") has to produce trouble for me. Where I am o~t ~~~~~~
~ay be able to persuade people that I have the better legal case- indeed the
for me to mcrease
But
'fIvergence
h
. may
. bethe occasiOn
my fund of credibility
I tp ere ts da divergence
m
my position
. . rather than letting myself
be
d h I ' and I persist
. h t, I h ave to be ready for
th ersua
b Te t at was wrong and "the law" was ng
e pos~t. I uy tha~ I will be unable to produce a plausible legal argument for
my ~osfltlton. If thts happens, I will be in a corner. I may not be able to avoid
a pam u controversy.
. Fear of this controversy will influence how I see both HIWTCO d h
field and fl
h
. .
an t e
abl ,t b ~~ ue~e.~ em_m such an mtnnsic, automatic way that I won't be
th e o ~ outst ~ . the mfluence and neutralize it. Sometimes, in spite of
e most mtense
. .vtgtlance on m Y par t, fear h as eroded my opposition to an
o_udtc~me unul without ever being aware of it I have "gone over to the other
s1 e.
The dfevil's compact. I want to discriminate between more and less crass
:~~~~~~nor ;~~nd~ni7g HIWTCO. The less crass is fear of finding myself in'
I
'bl ~
e evt .s compact: that I will either defend my position as
p aust Y m accor~ _wnh law, or change it, or withdraw from the case
I enter~d the devil s compact when I took my oath of office as a judge. The
compact
me
d pu bl'Ic, but It
. Is
. also a rough way
of
describints between
h
. and
. a n tmagme
g w at I thmk wtll be the practice of various real people I know, or
556
Studies
who can communicate with me through newspapers, letters, popular magazines, law reviews, or bar journals.
Many people believe there is a sharp distinction between action according
to law and lawless action. If it appears to them that I have no plausible legal
argument for how I want to come out but, nonetheless persist rather than
changing my view or withdrawing from the case, they will say I have
violated the elementary meaning of the agreement under which I direct the
use of state force.
There are people whose good opinion is important to me whose belief in
the devil's compact is such that they will condemn me for violating it even if
they think the outcome I favor is the just orie. They see it as an aspect of the
judge's job that she is supposed to bring about outcomes that are unjust
when the law is unjust. If you don't like the job, you shouldn't take it. Once
you take it, you either do it or refuse to do it (withdraw from the case).
I was aware when I took office that if I were to publicly reject the compact,
I probably would not be allowed to become a judge. When I took the job
without raising the issues I am about to raise here, I allowed some people to
think that I agreed to the terms of the compact. The fact that many liberals
and some conservatives understand it in a way that modifies it so much as to
make it almost meaningless is irrelevant to my point. People who believe in
the compact were necessary, I imagine, for me to become a judge, and it is
with them that I entered the compact.
On the other hand, I think the popular conception of law is internally
contradictory, embracing the notions that (a) "the law is the law," a determinate result-producing technique, and (b) the law is intrinsically an affair
of justice, so that it is always "for the best," and lacking any theory at all of
how conflicts 'between (a) and (b) are to be resolved. Lay people tend to be
surprised when the law turns out to be plain unjust, and surprised also when
it turns out to be indeterminate or patently determined by "external" factors
such as controversial ethical or political views.
Furthermore, the devil's compact presupposes a view of the relation
between the law and HIWTCO that initiates know is false. The manipulability of the field is much greater than the lay public realizes, even if we
concede that there is no intelligible way to answer the quantitative question,
"How manipulable?" And the point at which the field "sticks," presenting
itself a~ an objective message there's no way to evade, is much more arbitrary
than even the legal profession realizes.
This point, at which I am supposed to refuse to exercise my power in favor
of the workers, is indeed one of perceived objectivity of the field. But I cannot
affirm that it is a point at which the law was "jus~ not on their side," because
the problem may be that I was not suHiciently skillful, or didn't have enough
time, to find their argument. Even if we are at a point of objective field
adversity (I can't prove such points don't exist), it is not a point that is part of
an intelligible pattern.
If the field constrains the judge only in this arbitrary manner, it doesn't
make sense to claim that constraint is the workers' quid pro quo for
accepting an unjust outcome in any particular case. The devil's compact, if I
try to impute it to the litigants rather than to myself as the judge, is vitiated
83
84
Studies
Critical
557
by a mistake as to fundamental terms, a mistake of which I had prior

knowledge.
Su~po~e that I persist in HIWTCO even though it differs from the Jaw as I
perceive It after _exhausting my resources of legal argument against it. I will
then face a choice _such that, whatever I do, I will feel terrible. I therefore
h~ve a strong mouve to somehow reconceive HIWTCO so that it accords
with the law and thereby prevent my painful dilemma from ever reaching
the level of consciousness.
What d~termine~ t~e outcome of the interaction between the field and
HIWTCO. :rom I~s1d~ the practice of legal argument, the only possible
answer to th1s _quesuon 1s that I determine the outcome. As I work to manipulate t~e Ia~ held in the direction of HIWTCO, I have a strong feeling that 1
am a:ctmg m the world, remaking it to fit my intentions. If I manage to
re~tate the law so that it plausibly requires my preferred outcome, I wil-l see
th1s as my accomplishment.
As I devel?P. the case against an injunction of the lie-in, I am restating the
l~w about he-ms. At some point, I may "get the message" of that law and
fm~ ~yself developing it in my own mind as an argument against the
~os,IUon I have been taking, against HIWTCO. Then at some point I may
h~d t~at "I am changing. my mind" a_nd then that "I have changed my
mmd. In that case, I will feel that It was my own decision to bring
HIWTCO into accord with the law.
. It is a little hard to figure out what it means to have an "I" inside me who
IS. capable of changing a "my mind" that is both the same as that "I" and
~1fferent en~ugh so that "I" ca~ determine it rather than just being it. But it
Is my expen~nce that HIWTCO is undetermined right up to the moment
when ~omethmg has happened that moots the question. I can always change
my m~nd about HIWTCO, and I have on occasion found myself changing
my mmd very late in the game.
But this way of pu~tin~ it, though true to occasional experience, overstates
my freed~m by ~akmg It sound as though I were omnipotent. Remember
that even m the hrst moment of confronting the problem I want to come out
one way or anothe~ in the context of my life-project as a judge and of the law
as I_already know It. These contexts are givens that have shaped me before I
beg~n to reshape them. I decide already positioned somewhere, having no
chmce about that somewhere, able to move only by work that takes time.
A_s soon as I set t? work on the particular law field, I undergo its influence,
a_n 1 ~fluence that IS P~rtly no~mative and partly the product of my fear of
fmdmg HIWTCO ultimately m conflict with the law. On the other side are
~II r;ny good reasons for sticking to my initial conviction, reasons whose
mfluence I can never fully neutralize.
As I work on the field, following a strategy that has its own internal
~-conomy and takes time to execute, the field and HIWTCO change and
mfluence on~ another and change and influence one another some more. If I
am lucky, th1s process appears to have an tfnforced inner tendency toward
convergence, so that eventually the law and HIWTCO are the same, one way
or another. But whether and how this convergence occurs is very much a
558
function of aspects of the situation o~er which I ha~e little ~ontr?l. .. "
First,. there is my initial apprehensiOn of the law he~d, wh1ch I JUSt g~t
as impacted, contradictory, or whatever. Then there 1s my strate~y, wh1c?
takes me down a path I can't know in advance. Although I choose It, I don t
control the consequences of my choice, since the field has hidden properties,
and I have particular biases and only w~at skill I can muster for the oc~
sion. Then there is the time factor, which means that sooner or later, If
convergehce does not occur, I will have to stop working on the field, un!iure
whether its current state is an irremediable aspect of its "true nature" or an
artifact of my blundering.
.
I.am now repositioned, so to speak. It's true that I can sull change my
mind about HIWTCO and that I am free to make one of a number of choices
about how to play things, if HIWTCO and the law as I ha_ve reconstr~cted it
are in conflict. But it is also true that I will make these chmces constramed by
where I started and by all my decisions about how to develop the field. What
I have done is irreversible in the sense that I can't just "go back" to the way I
used to see things. And I've run out of time to work the field backward (or
forward): I'm stuck where I am and have to decide from here;
What to do in case of conflict between the law and HIWTCO. My answer

to this question is unhelpful: it depends on the circumstances.
1. Go along with the law. In spite of my conviction that social justice
requires me to deny the injunction, I issue it, along with ~n. opinion
denouncing the law and urging reform. I make the very convmcmg legal
argument for an injunction that comes to mind in an impacted field such as
this one. A crucial question is how I explain my obedience, that is, my
willingness to act as the instrument of injustice.
.
2. Withdraw from the case. I neither issue the injunction nor deny _u. I
withdraw, explaining that I think the law is unjust and that my feehngs
against it make it inappropriate for me to preside and repugnant to me to _be
involved in administering this regime. A crucial question is how I jusufy
begging off while insisting that someone else do the dirty work, if I intend to
stick around for the more attractive assignments.
3. Decide against the injunction on the basis of what the law should _be. I
deny the injunction, honestly explaining my inability to come up with a
plausible legal argument against it. Though I may be reversed on appe~l
(and quickly at that), I exercise what power I have to further HIWTCO. Th1s
may be decisive if the litigants are evenly matched out in the world. I accept
what consequences my bureaucratic superiors and my colleagues and peers
decide to inflict (highly .indeterminate). I appeal to them to accept my
outcome as the correct one in thi~and future cases, thereby changing the law.
A crucial question is who authorized me to take the law into my own hands.
4. Decide against the injunction on the basis of an implausible legal
argument. Maybe it will look good to others, even though I think it stinks; I
can never be sure in advance. Maybe it will turn out in my own hindsight to
be a better argument than I thought. But what about the dishonesty of bad
faith argument?
5, Decide against the injunction on the basis of fact findings I know to be
85
86

Critical Phenomenology of fudging
Studies
Critical
559
false. As the trial judge, I decide to pretend to believe an account of the facts
of the lie-in that I know to be false, and deny the injunction on that basis.
This is obviously an extreme measure.
Afterword
The rule of law. I can imagine hypothetical situations in which each of

these courses of action in the face of conflict would be appropriate. I don't
think any of them can be either endorsed or excluded a priori. But I am
aware that it is often argued that the meaning of the rule of law is obedience
to the devil's compact, and that the only permissible course of action for a
judge confronting a conflict between the law and how he wants to come out
is always to follow the law.
Given the practice of judging as I have just presented it, and especially
given the apparently arbitrary character of eruptions of perceived objectivity
in the course of manipulation, I find this argument unconvincing. But that
is for another time. From within the perspective of my imagined judge, the
story is over when she reaches the moment of decision. Whether she should
always follow the law in cases of conflict is a question that we answer as best
we can through reflection and argument about our political system, about
the actual laws in force within that system, and about particular cases .
Social theory. The judge has to decide what to do from a position. That
position depends on the givens of the judge's life-project, on the body of
legal materials and the facts of the case as grasped at the beginning of the
process, and on the work the judge has done on those materials and facts. In
deciding, the judge risks but may also gain credibility, depending on the
obviousness gap between the common perception of "the law" and
HIWTCO.
On this basis, we might hypothesize that the probability that a judge will
move the law so as to achieve any given result is smaller in proportion as the
work and the credibility risk involved are greater, and that the total quantity
and quality of work available from the judicial labor force limit the total
amount of legal movement we can expect in any direction.
For this hypothesis to be useful in studying the role of law in a given social
formation, we would have to study both the legal materials and the culture
of judges in order to determine, by an essentially imaginative rather than
positive procedure, how they are likely to construct given fields, and how
much work will appear to them to be involved in different kinds of field
manipulations. We would also need to know how often divergences between
their initial apprehension of the law and how-they-want to-come-out will
motivate them to work hard at manipulation and risk credibility. On the
basis of such knowledge, we might speak meaningfully of law as a general
constraint on the exercise of state power in the society in question.
Note that without this "internal" information about how judges perceive
law fields the notion of law as a constraint on state power is essentially
meaningless. We have to know "constrained in what position from moving
what distance" before we know anything at all. Note also that this
hypothesis is merely "inertial." It says nothing about "inherent tendencies"
560
of the legal materials to develop in particular directions. !~e t?t~l available

labor time may be deployed in any way at all, but that tt IS hm1ted means
tqat movement is constrained.
.
Whether this description of judging could form the basis of a t~eor~ of
"ihherent tendencies" or directions of development of legal matenals IS a
very difficult question. On the one hand, the j.udge experiences,the nor~a
tive power of the field as directed toward a part~cular.outcome, a~d we might
develop a social psychology of what this duecuon will be. for a given b?dy of
ma.terials. On the other, the field moves only because the Judge moves lt, a~d
this he does in accord with how-he-wants to come-out, under the constramt
of having to work at manipulation and to risk credibility.
.
A sufficiently complex social psychology might allo~ us to descnbe ~e~n-,
ingfully the way in which a judiciary with a. parucular s~t of pohu~l
commitments will interact with fields -it expenences as havm? normauve
power in particular directions. But the notion that the norma~Ive power of
law fields is directed toward particular patterns of substanuve outcomes
seems to me tenuous, at least at the moment.
.
Ot course, most social theorists simply assume that "law" is one th1~~ or
ano~her and can be treated as a kind of block contributing to a larger edihce.
To the extent the experience of law is as I have described it, this approach
makes little sense.
Jurisprudence. Imagine you are a professor of jurisprudence, in possessi~n

of professional knowledge of the nature of law. Suppose you approach me m
my dark cloud of ignorance of whether or not I will be able to overco,me the
gap between the law and how-I-want:t.o-come-ou.t. You argu~ that legal
rules, like the rule that the workers can't mterfere wnh the owners u.~e of the
m.o.p. during a strike, never determine the outcome of a case. A~d smce the
legal rules are the only things that stand in the way of my commg out the
way I w?nt to come out, I have no problem. Legal th~ory ind~~ates that I ~m
home fr~e or at least that I ought to be home free. If I m not, ll s because~ ve
failed at l~gal argument, not because of any properties inherent to the held
I'm trying to manipulate.
..
'You can expect me, in my role of humble law ~ruhcer, _to ask you how you
can be so sure. You might respond that since Wmgenstem we know that no
rule can determine the scope of its own application. It follows mo~e or less
directly (unless you insist on a detour through semiotics, st_ructurahs~, and
deconstruction) that the mere statement, "the workers can't mterfere wllh the
owner's use of the m.o.p. during a strike," tells us nothing about whether or
not they can lie in to block substitute workers from driving the buses out of
the garage onto the great American highway. There is a who!~ world of
interpretation, inherently subjective and indee~ _per~~ps even mherently
arbitrary (from the standpoint of my lntmble aruhcer ~. 1dea ?,f reason) ...that
we have to go through to get from the rule to "the facts. And of course the
. .
facts aren't any more "just there" than the rule.
My experience with legal argument doesn't allow me to meet your JUfl~
pruqential position on its own ground. What I can say ~s a. l~gal arguer ~~
that sometimes I come up against the rule as a felt obJectivity, and can
87
88

561
budge it: This doesn't mean that I agree with it or that I think anyone would
necessanly condemn me if I disregarded or changed it. All it means is that I
sa~ t? myself, "Here's the rule that applies to this case;" "we all know that
this Is theh rule;" and "here's how it applies"
gomg
and "Everyone IS
to
app Iy Itt at way."
I am perfectl.y ~ware that the rule is not a physical object and that deciding
how to a~ply ~t mvolves a social, hence in some sense a subjective process.
But there IS this procedure I've performed many times in my m 1'nd
d'ff
.
, m many
~ ere~t contexts, of applymg a rule to a fact-situation. I've many times had
discussions wit? others in which we formulated rules together, seemed to
agree about t~elf terms, then engaged in a series of applications, and found
that once. we d agreed on the formula we came up with the same answer to
the question: how does the rule apply here?
I believe that it is possible to communicate with another person so that we
both hav~ roug?ly the same rule in mind. I believe that it is possible to
~om~umcate With another so we both have roughly the same fact-situation
m mmd. ~nd .~ believe that when we both come up with the same answer to
~he question, . How does the rule apply to the facts?" it is sometimes meanmgful to ~escn.be what has happened as "we applied the rule to the facts."
In. the sltuau.on I most fear as a liberal law-reforming judge when I have
studied the van~>Us rules that I think might apply to the lie-in, I conclude
that everyone will agree that the employer has a right to an injunction under
the ~ules as we all understand the~ t? be ;IS of now, and that to change this
paruc~!:U ru~e ~?uld be ~nconstltutlonal. This conviction might be based
on an 1denucal case deCided by the Supreme Court yesterday, or it might
be. based on a rather long and abstract chain of reasoning by analogy But it
might happen. A~d if it happened I would face some pretty tough ~hoices
about what to do m the case.
. As I said, this dec~aration of faith in the possibility of communication and
m the. at least occasiOnal intelligibility of the procedure of rule application
do.esn t meet your fancy arg~ment on its own ground. I have no idea why
~~~s.stu~f hap~~s. As Is~ ll, your fancy argument is that I can't show an
~bJecuve basis or a r~tionale or an explanation of rule application that
will prove that any parucular application was "correct." Indeed, the notion
?f co_rre~tness .atleast as we usually use the word in math or science or logic
JUSt ISO t applicable.
Fro~ my position inside the practice of legal argument, I can't say
anyth~ng one w~y ?r another about this fancy argument. i have no way of
knowmg, fro~ Inside the practice, why it is that sometimes the field gives
way ~~t ~omeumes refuses to qudge at all. Maybe when it seems unbudgeable Its JUSt because I didn't find the catch that releases the seqet panel.
Mayb~ my ~en.~e. that we communicated the rule to one another and then
each apphed It and ~hat that's where the result "came from" is a false
s~nse, a hopeful or senumentalor, in this lie-in case, a paranoid interpretat~on of the random fact that we agreed on the outcome, rather than a reflection. of a common experience. From inside the practice of argument I just
don t know.
'
562
I will be very irritated indeed if you turn around on me now and reveal
that you were just using the fancy argument to make me concede the truth of
some form of positivism or objectivism about law, or at least legal rules. It
was a good trick, but I claim to have evaded it. I have been saying all along
that legal argument is the process of creating the field of law through restatement rather than rule application. Rule application is something that
does happen, but I never experience it as something that has to happen. It is
an outcome as contingent and arbitrary from the point of view of jurisprudence as that in which the field is gloriously manipulable.
I dealt here with a case in which my initial apprehension was that the law
was clear against the workers, but I was able to undermine the perceived
objectivity of the rule (at least in a preliminary way). That was an example
among many possible of how an initial apprehension of ruledness can
dissolve. Sometimes I approach the field in an agnostic frame of mind, and
just can't figure out what the rule is supposed to be; sometimes I can't decide
whether the facts are such that the outcome specified by the rule is triggered
or not. Sometimes it seems there are several possible answers to the question
and I don't have any feeling about which is correct. Sometimes I'm initially
quite sure what the rule is and how to apply it but a conversation with
another person who has reached a different set of conclusions leaves me
feeling neither that I was "right" nor that she was "right," but rather that
the rule was in fact hopelessly ambiguous or internally contradictory all
along.
If you tell me that there is always a right answer to a legal problem, I will
answer with these cases in which my experience was that the law was indeterminate, or that I gave it its determinate shape as a matter of my free ethical
or political choice. It is true that when we are unselfconsciously applying
rules together, we have an unselfconscious experience of social objectivity.
We know what is going to happen next by mentally applying the rule as
others will, and then they apply the rule and it comes out the way we
thought it would. But this is not in fact objectivity, and it is always vulnerable to different kinds of disruption-intentional and accidental-that
suddenly disappoint our expectations of consensus and make people question their own sanity and that of others. This vulnerability of the field, its
plasticity, its instability, are just as essential to it as we experience it as its
sporadic quality of resistance.
The rule may at any given moment appear objective; but at the next
moment it may appear manipulable. It iJ,not, as I apprehend it from within
the practice of legal argument, essentially one thing or the other.
If this is what it is like to ask the nature of law from within the practice of
legal argument, then the answer to the question must come from outside that
practice. All over the United States and indeed all over the world there are
professors of jurisprudence who think they possess professional knowledge
of the nature of law. Where are they ,getting it from? For my own part, I think
their answers to questions like those I have been addressing are just made up
out of whole cloth. Show me your ground before you pretend to be moving
the earth.
89
Part II
Legal History
[4]
Critical Legal Histories
Robert W. Gordon*
Critical legal writers pay a lot of attention to history. In fact,
.they have probably devoted more pages to historical descriptionparticularly the intellectual history of legal doctrine-than to anything else, even law and economics. Such a preoccupation within a
radical movement is at first glance surprising. After all, lawyers
have, by notorious custom, used history conservatively, appealing to
continuity and tradition. 1 And in the less common situations in
which lawyers have used history to criticize the Status quo, they have
usually resorted to social and economic history, to show that the original social ,context of a legal rule reveals it was adopted for wicked or
obsolete reasons, rather than to the history of legal doctrine. 2 What
could conceivably be radical-or, as some unkindly ask, even interesting-about rewriting the history of doctrine?
I will attempt, in this article, to give a, brief account of the impulses that have prompted the Critical scholars to their chosen ways
of writing history (or rather histories, since.the movement has actually spawned several different historiographical practices). I'll start
by trying to describe a vision of law-in-history that has. tended, as I'll
Professor of Law,Stanford University. I am grateful to Paul Brest, Tom Heller, Fred
Konefsky, Elizabeth Mensch, Deborah Rhode, Mark TuslineJ, and especially to Steve Dia
mond, Lawrence-Friedman, Tom Grey, Mark Kelman, jack Schlegel, Bill Simon, and Dave
Trubek for reading earlier drafts and suggesting revisions. Willard Hurst gave the manuscript his usual incredibly close attention, wrote a dozen pages of detailed comments, approved what he could with characteristic generosity, and vigorously challenged what he could
not; this article continues a longstanding conversation with him. I owe a special debt to
David Sugarman, who has gen<;rously shared his ideas with me for years and whose invaluable and (unlike this piece) copiously ,footnoted manuscript, Sugarman, Towards a N~w Histoty
of lAw and Malena/ Soddy in Eng/and, 1750-1911, in LAW, EcONOMY AND SOCIETY: ESSAYS IN
THE HISTORY OF ENGLISH LAw, 1750-1914 (G. R. Rubin & D. Sugarman eds.) (forthcoming), which arrived as I started to think about this article, has impressed its influence on every
page.
I. Horwitz, Book Review, 17 AM. J. LEGAL HIST. 275, 275-76 (1973).
2. Doctrinal history has not always been conservative. Radical legal argument used to
draw upon its own notions of the ancient constitution, which was to be reclaimed by revolution from a corrupt present. Se.., e.g., C. HILL, The Norman Yoke, in PURITANISM AND
REVOLUTION: SoURCES IN INTERPRETATION Of THE ENGLISH REVOLUTION ot TilE 17TH
CENTURY 58 (1958).
57
94
58
"
'"
'II
'II
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STANFORD LAW REVIEW
Critical
[Vol. 36:57
argue, to dominate liberal legal scholarship. I will then outline some

of the Critical insights that have developed-many of them within
liberal scholarship itself--to corrode separate components of that
dominant vision. Next I'll show how Critical writers have tried to
build these insights into a 'more thorough critique and how this critique has affected the ways in which they go about their work. Finally, I will discuss some common attacks on Critical histories, add a
few doubting remarks of my own, and proffer some suggestions and
exhortations for future directions. 3
I have little hope, in the pages that follow, of making a new contribution to the longstanding debates over theory and method in
socio-legal history. 4 I'm really only concerned with summarizing, in
what I would like to think is a clarifying way, some of the main positions in these debates, aware that the outcome of such an effort is
bound to look like a seed catalogue or a Pocket Guide to the Common and
Exotic Varzeties of the Social/Legal Historzes of North America. The audience I would most like to reach is that of liberal lawyers who are
interested enough in Critical legal writing to be curious about it and
who might: find it more persuasive as well as more accessible if
equipped with such a little guidebook. 5
As the bulk of this piece is committed to describing criticisms of a
tradition of historiography called "legal functionalism," I should also
say that this is the tradition that has done most to nurture and in3. The knowledgeable reader will have noticed that this outline follows a format (orthodoxy synthesized-partial critiques--total critique and transcendence-critique of the crilique) that has become almost as stylized in CLS work as the sonata form was in classical
composition. Perhaps it's time for a new format.
4. Still less does this piece try to join the interesting controversies among Marxist historians and theorists. Although these controversies have counterparts in the literature of
American legal scholarship, they are almost never referred to in that literature. Further, any
attempt' to describe the controversies would require introduction to a lot of specialized concepts and jargon. For a useful recent survey of these controversies, see G. McLt::NNAN,
MARXISM AND THt:: METHODOLOGIES OF HISTORY (1981).
5. Mine is hardly the first such guidebook. For exceptionally useful treatments of social/theoretical issues in legal historiography, see A. HuNT, THE SOCIOLOGICAL MoVEMENT
IN LAW (1978); Friedman, Som~ Probl~s and Possibibiia ofAmmcan L~gal Histo')', in THE STATE
OF AMERICAN HISTORY 3' (H. Bass ed. 1970); Holt, Morton Horwitz and th~ Transjimnation of
Ammi:an ugal His!OT)', 23 WM. & MARy L. REV. 663 (1982); Scheiber, At th~ Bor&rla~d of Law
and Econdlnic Histo'}': The Contributions of Willard Hurst, 15 AM. HIST. REV. 744 (1970);
Sugarman, Th~o'J' and Practzi:e in Law and Histo'}': A Prologue to the Stut.(J ofthe R~latirmship Bttuwn
Law and Economy From a Socio-Hislorical P~rspective, in LAw, STATE, ~ND Soci~:TY (B. Fryer, A.
Hunt, D. McBarnet, & B. Moorhouse eds. 1981); Tushnet, A Marxist Analysis of American Law,
1 MARXIST PERSPECTIVES 96 (1978); Abel, Book Review, 80 MICH. L. REV. ?85 (1980);
Diamond, Book Review, 77 MICH. L. REV. 784 (1979); Feinman, Book Review, 78 MICH. L.
REV. 722 (1980); Horwitz, supra note 1.
January 1984]
95
Stlidies'
CRITICAL LEGAL HISTORIES
59
spire my own work and there isn't one of its insights, including those
I have come to think mistaken, that I haven't found useful. Moreover, as is so often true of really good history, the best writing in this
tradition is always grandly overflpwing'its conc~ptual channels; one
could do worse than to keep trying to imitate the practices of the
great functionalist figures even after one has stopped accepting their
theories.
I.
A.
THE DOMINANT VISION: EVOLUTIONARY FUNCTIONALISM
Common Threads
6
Over the last 150 years or so, enlightened American legal opinion
has adhered with remarkable fidelity to what, in broad conception,
looks like a single set of notions about historical change and the relation of law to such change. Stated baldly, these notions are that the
natural and proper evolution of a society (or at least of a "progressive" society, to use Maine's qualificati~1,1 7 ) is towards the type ofliberal capitalism seen in the advanced Western nations (especially the
United States), and that the nat~ral and proper function of a legal
system is to facilitate such an evolution. (The words "n.at~ral~' and
"proper" stress the normative nature of the theory; deviatiOn~ from
the norm are both atypical and bad.) .Let me trY to break this very
generar account down into som~ more manageable pieces, the handful of propositions that compose its core. Readers will, I hope, un<jerstand that wha't I'm constructing is fln "ideal type": a list of the
propositions that one could expect most legal writers within the dominant tradition to accept most of the time, even if one could also
expect that any individual writer would want to qualify or even violently object to one or two .of them. 8
6. I'm speaking here not of the work of professional legal historians but of the bac~
ground assumptions about law-in-history 'that are presen: in mainstream legal scholarship
generally.
.
7. Su H. MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SoCIETY, AND ITS RELATION TO MoDERN IDEAS 21-22 (London 1861).
8. The danger in tryi..,g to set down such a list, of course, is tha! re~d~rs-especially t~e
readers who believe that their own world view is the one about to be made mto a target-will
say,'"Well, who accepts that? I don't know any legal w;iter who subscribes to that view, at
least not in such a simple-minded form.. Who exactly is Gordon talking about here?" O_ne
way to deflect this reaction in advance would be to offer a long list of passages from roamstream legal scholarship that exemplify the~ core propositions. This might indeed be don.e,
but it would take a lot of space to do it, in part because these propositions are rarely found m
the baldly explicit form in which they are stated here. They appear in conventional legal
discourse more as diffuse background assumptions, seemingly too unproblematic to need spelling out. I have decided against trying to document my list in this fashion, less (I hope) out of
Critical
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'~Law" and
((society" are separate social categories, each descnoable

zndependent!J .from the other but related to each other
through vanous mechanisms of causal lin/cage.
1.
Writ~rs in the dominant tradition make an important, though

~sually silent, ~ove. <:ven before they start saying anything substantive ab~ut law-m-history: They divide the world into two spheres
one s?cial and one legal. "Society" is the primary realm of sociai
expenence. It is. "real ~ife": ~hat's immediately and truly important to p~ople, hk~ desire and Its fulfillment or frustration, goes on
there. This realm IS the realm of production, commerce the market
th. e. f:an;u'1Y "Law " or " t h e 1egal system," on the other
' hand, is a'
d1stmctly secondary body of phenomena. It is a specialized realm of
state and professional activity that is called into being by the pri~ary social world in order to serve that world's needs. Law is auxilIary-an excrescence on social life, even if sometimes a useful
excrescence.
. Thoug~ law and society are separate, they are related. And the
b1g theoretical problem for writers who see the world this way is to
work ou:, the secret of that relationship. Thus, they ask questions
su~h as, Is law a dependent or independent variable?" "Is everyth~?g about .law-norms, rules, processes, and institutions-determmed by society, or does law have "autonomous" internal structures
?r logic?" "If it has internal structures, do they enable it to have an
md.epe?de~t ca~sal ~ffect~to act as a positive feedback loop-on
social hfe? Wnters m the hberal tradition (like those in the Marxist
l:.in~ :h~n out of the expectation that the readers and writers of mainstream legal scholar-
s 1P WI
simply rerognize the propositions as belonging to the ordinary, taken-for-granted

To supplement this method of recognition, I actually did
try m anot~er ~r_t~cl~ to gtve concrete examples of writers who accepted this set of views Su
~.rdon, Hutonmm m Legal &holarshi'p, 90 YALE L.J. 1017, 1028-45 (1981) (the d mi~ant
wash' ther: called "adaptation theory" and more sketchily described than it
here)
n m t IS art1c1e I try to pro VI d e many more examp 1es at appropnate
points.
!"s for r_e~ders who ~o recognize their own views in my list of the core propositions of the
d~mm7't VISion but thm~ my account unacceptably reduces, caricatures, or distorts those
:news, propose the followmg procedure: (I) Consider whether the view you want to dt'fend
::~?r~ ac;::u;ately ~tegorized as part of the "dominant vision" or as one of the numerO!,!S
cnuques o that v1s1on that appear later in this article (it may be that you are really a critic
r~ther tha~ an adherent, of evolutionary functionalism as I've described it); (2) if after doin '
t adt yobu sull fi.nd yourself a defender of evolutionary functionalism, but of a far more refine!
an t su ht1e vanety .than
my. caricat ure, as k yourse If w h ether your vanant
bl
.
is or is not vulnerae. 0 t e many crttlq~es (1t may be that the critiques are as good against the so histicated,as
armst
vem?ns); and finally (3) if you have isolated a strain of the
vision
t a~ you e leve to b~ Immune to the critiques (or, naturally, if you think the critiques are all
gar age anyway), wnte a letter or publish an article in response to this one.
co~mon sense of ~hat sch~larship.
Avlsldo~
~s
t~e ~rude
do~inant
January 1984]
97
Studies
~1
tradition) have resolved these questions in wildly different ways and

reached wildly different conclusions,9 but they all assume that these
are the vital questions.
Z. Societies have needs.

This proposition is the functionalist heart of the dominant vision. 10 Social needs may be universal-needs such as survival, stability, maintenance of social order, conflict management, organization
of production, security against foreign enemies, allocation of scarce
resources, or preservation of continuity in the midst of change-or
they may be specific to a given stage of social or economic development. One key need is the need to develop along the appropriate social
e"'olutionary path.
Needs operate both aspressures and as constraints. They are the
motors driving the society to find means for their fulfillment, and
they set the limits on the possibilities of social experimentation-limi(s beyond which lie dysfunction, futility, failure, and chaos.''
There is an objective, determined, progressive social evolutzonary

path.
The general idea here is that the causal responsibility for change
lies with impersonal forces of historical "becoming." More specifically, the histories of certain advanced Western societies, most notably the United States, describe an evolutionary development that is
3.
9. See notes 18-26 i'n.fta and accompanying text.

10. This proposition is probably also the single most dispu_ted one within liberal legal
scholarship: Many writers see the attribution of "needs" to societies as excessively reifying,
and 'they therefore try to break societies down into their constituent individuals or interest
groups. Su text accompanying note 38 infra.
II. For the purposes of this article, I'm reserving the term "functionalism" for the particular type of explanation outlined here, i.e., one that first posits a set of"primary," more-orless objective needs or dynamic processes and then explains "secondary" historical phenomena as responses to those needs or processes.
'
Some legal writers seem to use "functionalism" in a sense different from mine, to mean
any way of explaining legal forms or practices by reference to social "purposes" or "interests"-indeed by reference to anything other than the formal, internal materials of the legal
system. This usage seems to me both too broad and too narrow. It's too broad because any
practice is "functional," and none dysfunctional, if that means it serves somebody's interest or
can be seen as part of a system or pattern or process. And it's too narrow because it arbitrarily excludes attempts to show how the "function" of a legal practice might be to meet the
formal requirements of (i.e., serve someone's "ideal interest" in) the elegance or completeness
of an abstract system. I'd prefer to call this general type of explanation "external" or "contextual" and to label as "instrumental" the particular subset of external explanations that
account for legal practices as products of the desires or demands of social classes, groups, or
individuals.
98

62
Critical
STANFORD LAW REVIEW
[Vol. 36:57
both natural (in the sense that some version of it will happen in every
society unless "artificial" constraints force a deviation) and, on the
whole, progressive.
Different generations have described this evolutionary process
somewhat differently, but the contemporary United States almost always ends up sitting at the developmental summit. The great eighteenth12 and nineteenth-century story (the "Scottish Enlightenment"
story whose general outlines are still so firmly rooted in our culture)
told of the gradual liberation of the individual from the shackles of
feudalism and superstition-from restraints on trade, on free alienation of land, and on free movement of labor; from the oppressions of
feudal dues and tithes and of perpetual subordination to customary
hierarchies of ecclesiastical and noble orders; and from established
religions. According to this story, the concurrent spread of liberty
and commerce yielded a commonwealth of men who were actually or
potentially (with some exceptions such as slaves) politically equal
property-holders, securely owning and freely exchanging land, labor,
and capital. 13
By the start of our own century, the growth of propertyless classes
caused the historians' emphasis to shift away from the concept of
progress as the growth of yeoman freeholders and towards the concept of progress as improvement in technology, organization of prod,uction, and creation of opportunities for immigrants to rise in
society. In our own age of dampened enthusiasms, the labels attached to basic historical changes tend to be more ncutr~l: "industrialization," "modernization," or just "political and economic
development." In usage, however, these labels retain a strong normative flavor and occasionally, as in some legal economists' interpretation of
the history of societies as one long series of "efficiency"
14
gains, an unabashed Victorian optimism.
What all these histories have in common is their determinist tele12. S.,.~ ). BURROW, A LIBERAL DESCENT: VICTORIAN HISTORIANS AND THE ENGLISH
PAST 21-35 (1981); A. HIRSCHMAN, THE PASSIONS AND THE INTERESTS: POLITICAL ARGUMENTS FOR CAPITALISM BEFORE ITs TRIUMPH 81-93 (1977).
13. The story was always ambiguous as to whether an ideal element (the love of liberty)
or a material one {extension of the market) was the driving force behind this liberation.
14. One can take as an example the following statement:
The efficient society is wealthier than the inefficient-that is what efficiency
means--and a wealthier society will support a larger population. This effect of
greater wealth can be decisive in the competitio,n among primitive societies, where
the methods of warfare are simple and numbers of people count for much more than
in modem warfare. Archaic societies sufficiently durable to have left substantial
literary or archaeological remains and primitive societies sufficien1ly durable to
January 1984]
Studies
99
63
1 ges whose elemental parts-the "extension of the market," the

1 '
. . and status h'1e~arc h'1es, "the
"breakdown
of traditional commumt1es
"shift from ascribed to achieved social st~tus~" the "tnumph of th~
ddl lass " the "revolution of product10n m the factory system,
of
administrative state," an_d
of the
multi-divisional form of corporate orgamzat10n '--are all hnked to. I evaI uuon.
. Is
gether in a master process o r soc1a
.
LawyerS once played a moderatel~ _im~ortant r?le ~~ actually
writing these histories. Recent legal wntmg 1s m6re hkely JUSt to assume that some objective, generally understood p~ocess of development has been working away in the background, and to leave the
actual details of the process to vague implication.
0 0
~~ "r~s~ ~he
4.
t~e ::developme~t
Legal systems should be describ~d and explained in terms

functional responsziJeness to soczal needs.
of their
Functionalist sociological legal history has an <:xceedingly distinguished lineage, beginning with Montesquieu and Adam Sm1th, ~on
tinuing through Karl Marx, Ma:x Weber, and _Rudolph vo~ jhen.~g,
and virtually all lesser nineteenth-century wnters on. law, and_ mcluding among twentieth-century lawyers such figures as Ohver
Wendell Holmes, Roscoe Pound, Karl Llewellyn, Franz Neumann,
have survived into the nineteenth century (when serious anthro~logical study began) are likely, therefore, to be societies whose cu~toms are effic1ent.
cie~riy, however, the primitive social equilibrium is less efficient, at l~t in the
long run than that of advanced societies: consider the very s~all_pro~oru?ndof t~e
world's ~pulation that lives in primitive societies today. Th1s snuauon 1s ~e .'n
some art to coercion rather than peaceful competition, from the advanced soc1et1~
'(drar!.tically so in the case of the North American Inc;lians,_ for
10
greater part to the adaptive responses of primitive society to 1ts ec~nom1~ envlro~
rnem. These responses include practices, such as. d~n~ing peop e P~IV~cy an
reventin them from amassing wealth, which are 1nlm1cal to econor~uc progr~ss
in
to population growth. This is a point to give the romantiC anarchist
exam~le), b~t
~nd tu~n
Posn~;u;,eTh~oT)' ofPrimziiw Socitty, Wzih Spmal Rifermc~ to law, 23 J. L. & EcoN. I, ~3 (19~0).
. 1 ;u ose that if Society A inven(s the Maxim gun, which it us~ to mass~cre t e nauves
of
or develops an immunity to its
virulent venereal
among and wipe out the population of ~oc1ety B, we could say t at c1ety
s
cient" Other adjectives also come to mmd.
d ed h
It was of course not a lawyer, but the sociologist Talcott Parsons, who pro uc. t. e
d process. ~,
"~ ~a
N. SMf.LSI::R,
Summa .of modern accounts oft h"Is mtegrate
..,., T . PARSONS & Soc
T EcoNOMY AND Socli-:TY: A STUDY IN THE INTEGRATION Ot' EcoNOMIC AND
IAL. li~
ORY 284-94 (1956). Yet somethmg
hke
t he p arsoman
acco u nt is. remarkably
.
pervas1ve m
.
modern legal scholarship though its optimism is occasionally quahfied wnh a trace of trag1c
Societ~PB,
~wn
tse:~ wh:~ t::r~~~;~~
is
mod~~is~~' t.g.,
P. STEIN, LEGAL EVOLUTCON: THE STORY Ot" AN IDEA 122-27 (1980).
Critical
100
64
STANFORD LAW REVIEW
[Vol. 36:57
and Willard Hurst. The general functionalist method is to ~onstruct

(or, as is rather more common, to assume without much discussion) a
typology of stages of social development and then to show how legal
forms and institutions have satisfied, or failed to satisfy, the functional requirements of each stage. Obviously, an enormous gap in
sophistication and conceptual power separates the best and worst examples of this method. At its best, as in Weber's work, complex bundles of rules are tied through explicit theorizing to elaborate accounts
of social development. At its comically vulgar worst, the method
produces wholly speculative functional rationales for legal rules in
underlying social changes-vacuously ,described rationales such as
"the evolution of the right of privacy was a response to the increasing
complexity and interdependence of modern society." 17
Of all the generalizations produced by this method, one so familiar that it has become a: clich~ of our common discourse is that capitalist development (or as our forebears preferred to put it, the
expansion of commerce) requires legal improvements that increase
the certainty and predictability of exchange relationships. I will
come back to this assettion, but I should first list the final identifying
characteristic of the, dominant vision, namely:
5. The legal system adapts to changing soci'al needs.

This concept expresses the confidence that, in the advanced Western nations and especially in the United States, the legal system has in
fact responded to evolving social needs. Save for egregiously Panglossian writers (Blackstone in some moods is one of these), the proponents of this notion.do not feel a need to attribute a social function to
every piece of law in the system; most writers will concede that even
major legal forms and processes can be dysfunctional for short periods. But a cqmmitted functionalist will maintain that, despite undeniable instances of lag and reaction, adaptation is the normal course.
The perspective thus tends to produce statements such as the following (presented here for the sake of illustration in their simplest and
most unqualified form), which discuss specific changes in legal rules
or forms:
-Tort law rules such as the negligence standard and the fellowservant rule were adopted to meet the needs of early industrial development. (They allowed employers and transportation entrepreneurs
to externalize a portion of their costs.) But as technological change
17. For a marvelous collection of examples, see Kelman, Trashing, 36 STAN. L. REV. 293
(1984); JW also notes 53-60 infta and accompanying text.
January 1984]
101
Studies
65
increased the risks of accidents stemming from empl_oyment and fr~m

the use of consumer goods, the law responded w1th rules of stnct
liability.
.
.
-Warranty rules such as "caveat emptor" reflecte~ a soc1e~y m
which most commercial trading was face-to-face. But with the nse of
mass consumer transactions. between remote sellers and purch~ers
and with increasing ignorance about the risks of defects, the law Implied warranties of merchantability.
_The corporate form developed. in or~er to f~lfill the need for
capital accumulation during the penod of mdustnal take-~ff.
.
-Various features of modern corporate organization, mcludmg
the "business judgment" rule and the rules specifying areas of management "prerogative" exempt from collective bargainin~, _develo~ed
in order to give management broad discretionary ?eclSlonmakl~g
power necessary for efficient maximization of profits m advanced mdustrial societies.
-Courts and legislatures were competent to handle the prob~e~s
of regulating the early nineteenth-century economy of compeuuve
individuals. By the late nineteenth century, however, the concenu:atiOn of corporate enterprise was raising problems of such complexity
that ,administrative agencies were required to handle them.
.
-Professionalization of the bar-the development of bar associations law schools formalized training and entry requirements, the
larg: urban law office, etc.-was necessa~ to enable lawyers to take
on the complex specialized tasks of law m a modern economy.
This perspective also produces some very large cl~ims indeed.
The first two examples listed below were commonplace m legal rhetoric through the end of the last century; the third is asserted by some
lawyer-economists in our own time:
.
_The common law over time tends ,to work Itself pure.
-Progressive improvements in legal scien~e have tend~d to clarify legal doctrine, making it ever more certam and predictable, as
well as more adaptable to social needs.
-Common law rules have tended to become more and more
efficient.
B. Divisions Withzn Functionalism

By now it will be evident that my "dominant tradition" is ~very
broad umbrella, covering legal writers whose views on many 1ssues
differ radically, some of whom would be appalled to find themselves
66
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103
102
[Vol. 36:57
sharing even a limited-purpose category with the others. In particular, I mean to group under the common shelter of "evolutionary
functionalism" both of the great antagonistic parties of modern
American legal thought, labelled here for simplicity's sake "Formalism" and "Realism." Each of these parties has, I think, worked out
contrasting visions of what social development consists of and how
law has adapted to that development without disturbing the fundamental assumption of progressive adaptation that they hold in common. The parties have clashed instead over such issues as the
definition oflaw and the autonomy of legal decisionmaking. IS
The Formalist side has a very restrictive notion of law as judgem~de law: "The legal system is the domain of the legal specialist the
legislature is in general not part of the legal system but a sour~e of
the goals that 'the legal system is to carry out." 19 Legislation and
usually administration as well are thus relegated to the "social"
sphere of the great law/society dichotomy. On the Realist side how. " what officials do about disputes,mo or even ' more
ever, l aw 1s
broadly, the work of anyone, including the private bar whose task is
the administration of public policy.
'
Formalists and Realists also divide over the issue of the "autonomy" of leg~l deti:i~i?nmakl~g processes in re.lation to political, social,
and economic declSlonmakmg. Formalists think that it is both usual
and desirable for legal decisions to follow an internal professional
agenda such as "a taught legal tradition" 21 of the common law. The
idea is that such decisions will best perform their social/functional
task of adaptation if lawyers and judges are not thinking about soci~ty at all but o.nly a~o~t perfect~ng their own craft,, becaus<f a logic of
hberty or efficiency IS mherent m the practice of that craft. Realists
thi~k that th~s proposition is nonsense, that policymaking can't be
socially funct)onal unless it is self-consciously directed towards the
satisfaction of social needs. Realists do, however, have their own no18. ln.cidentally,. the fact that legal Formalism has been politically conservalive and
Legal Reahsm more liberal-reformist is only an accident of our recent history It 1' s
t
d' 1 r.
.
easy o
amagme a ra :ca ormahsm, su~h as the French Revolution's program to remake society in
accordance wath abstract legal nghts, or a conservative Realism, such as German historicism.
19. R. MEANS, UNDERDEVELOPMENT AND THE DEVELOPMENT OF LAw: CORI'ORATI~NS AND C?RPOR~TION LAw IN NINETEENTH-CENTURY COLUMBIA xii (1980) (footnote
omltle~). Thas bo.ok as an exemplary performance in the functionalist/evolutionist mode of
legal hastory (lackmg, however, the normative notions of progress common to that mode).
20 .. K. LLEWELLYN, THE BRAMBLE B\)SH: ON OUR LAw AND ITS STUDY 20 (1951). For
a clear adea of what Llewellyn meant by this famous phrase, see W. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 14B-52 (1973).
21. R. POUND, THE FORMATIVE ERA OF AMERICAN LAW 82 (1978).
January 1984]
67
tion of legal "autonomy": Policymakers ought to be, and sometimes

actually are, insulated from' the immediate pressures of sho~t-ter~
political or economic interests so they can concentrate on the1r soci22
ety's long-run needs.
These differences lead to differing Formalist and Realist approaches to legal history. Formalist legal history focuses exclusively
on the development of legal doctrine, while Realist legal history considers doctrine as one component of a general, if not always wellcoordinated, policymaking enterprise. 23 Further, fo~mali~t le~al.h.is
tory considers phenomena outside the legal' craft as a1stortmg JUdlclal
decisionmaking or as simply irrelevant to the important story to b.e
told; the Formalist hero is the judge or treatise-writer who best clanfies doctrinal categories.. Realist history, on the other hand, takes as
its main subject the relations of function or dysfu~ction b.etween l~w
and major trends of social d~velopment; the.Reahst h~ro 1s th~ so~al
engineer who masterfully w1elds law as an mstrument <Of pohcy.
Naturally these differences lead to funtlament'al ~isagreeme~ts
about the course of recent history. For' many Formalists, the h1gh
point of legal development was reached around the :nd ?f the nineteenth century when the ideal of the rule of law as pnmanly enforced
by judges through an autonomous legal order'was af its peak of i~flu
ence.25 But the Formalists' high is.t:lie Realists' low: At that ttme,
absiraction from concrete social forces had put the legal systern badly
out of synch with the evolving requirements of society, and we only
climbed out of this trough of .dysfunction through the implementa26
tion of the policies of Progrdsivism and the New Deal.
11.
INTERLUDE FOR QUESTIONS ABOUT THE PdiNT OF THIS

PROJECT
Before going on to say something about the attacks that ha~e

been eating away, at the evolutionary-functionalist vision of legal his. tory, it is worth pausing a moment to ask why anyone should bother
22. Su, t.g., j. LANDIS, THE ADMINISTRATIVE PROCESS 111-17 (1938) (di~cussing why
agenties were organized so as to insulate them from the administration that appmnted agency
officials).
.
23. Su, ~.g., W. HURST, THE GROWTH o~ AMERICAN LAw: THE LAw MAKERS 4.l9-46
.
(1950) (adopting a broad view of law and of the tasks of legal history).
24. Su, r.g., Hurst, Alaandtr Harnillo11, Law Maltr, 78 CoLUM. L. REV. 483 (1978).
25. Su gmrra/f; I F. HAYt:K, LAW, LEGISLATION, AND LIBERTY: RL'Lt:S AND ORDER
94-123 (1973).
26. Su, ~.g., W. HURST, LAW AND THE CoNDITIONS o~ FREEDOM IN TilE NlNETEENTHC~:."NTUR\' UNITED STATES 84-108 (1956).
104
Critical
68
STANFORD LAW REVIEW
(Vol. 36:57
to a~tack the :isi?n at all. Social scientists who have heard previous
vers10ns of this piece wonder why I worry so much about evolutionism (our dominant vision's points 3 and 5) and functionalism (2 and
4), the mainstays of the liberal sociology of the 1950's; these views
have been so thoroughly discredited in modern social theory, they
argue, as to be left almost without serious defenders. On the other
~and, s?me of my legal colleagues, who have spent their working
!Ives trymg to sl~y the Formalist hydra that is still powerfully present
m legal-academic and professional thought generally, think it perverse and ungrateful to attack the Realist versions of functionalism
for these versions have proven to be the most reliable weapon~
ag~inst ~he dogma that legal forms can be understood apart from
their social context: If the weapons are broken, won't the hydra stalk
the law schools unafraid?
To the first question, the second is itself a partial answer: Evolutionary functionalism, in both the Formalist and Realist versions has
been kept goi~g ~~ch longer in legal thought than in social tho~ght
ge~erally. Th1s Isn t only because the law schools tend to pick up
mamstream intellectual opinion ten to fifteen years late. The notion
that l.aw -ah~ays is, or at least ought to be, functionally ~dapting to
evolvmg social needs is so deeply embedded in standard legal. speech
that one isn't likely to make a legal argqment of any length without
at l~ast ~~ntioning i~. Thi~ notion presumably persists because of its
serviceability to the hberalidea of law as the neutral arbiter of social
conflict: It tells the managers of the legal system that their basic instructions are specified by a sqcial process outside of the legal system
and that _they have no responsibility for that process except to solve
the techmcal _probl~ms of devising functional responses that will help
rather than hi_nder It. Hence, the inevitable ambiguities of legislative
command, pnor case law, custom, or constitutional text need never
force a legal syste~ to the pain of political choice because its manag~rs can always_ claim to be serving the logic of an historical process or
Immanent social consensus that exists beyond and prior to politicsY
27. ' For' example,
dominant visionaries argue that in "modern" or "developed" SOCIC
t'1es,
'
h
mno~auons m tee nology a~d t~e orga_n_ization of the work force are continually expanding
the s1ze of_the total econom1c p1e. Po!Jtzcal conflict properly takes place only over issues of
secondary Importance, such as how the pie is to be divided; expansion is both the natural
~ourse of development for a modern society and something that is in everyone's interest. The
JOb ofthe_legal sy~t~m, absent (evidently misguided) authoritative political directions to the
contrary, IS to facilitate the needs of the production process (e g "effie' t
"
"" d t . I
'') h' h b
""'"
.. ,
ten management,
m . us na peace , w IC
y definition are universal needs rather than those of a particular
facll~n or class. See, for a fuller description of this example, Stone, Th~ Post- Jj?ar Paradi in
-gm
Ammcan Labor Law, 90 YALE L.J. 1509, 1545 {1981).
January 1984]
105
Studies
CRITICAL LECAL.HISTORIES
69
What's more, not only is evolutionary functionalism still a living

force in traditional legal argument, it has in recent years receive& a
terrific hormone boost from some of the fanciest and most interesting
new work coming out of the law schools: the Chicago law and economics movement, 28 Williamson's "transaction cost" approach tolegal institutions,29 Bob Clark's explicitly evolutionary approach to the
history of the modern corporation,30 and Selznick arid Nonet's theory
'
of "responsive law." 31
Perhaps by now the second question, "Why knock .functionalism
when it's been so good to you?," is on its way to bemg answered.
Realist functionalism has unquestionably been a politically progressive and intellectually liberating force; it has moved us away fr_om
the occasionally useful but ultimately sterile studies of techmcal
forms evolving in a cultural vacuum and from the idea tha_t lawyers
and judges will always and automatically do t?e m?st possib~e good
through complacent inattention to the society m which they hve. Its
empirical investigations of the law "in action" have exploded forever
the Formalist fantasy that a universal scheme of neutral, general
rules controls equally and impersonally the discretion of every class
and faction of civil society. We owe to the Realist tradition of scholarship most of our understanding of variations in the e~ectiveness of
law according to the power and wealth of the people It to~~h~s ~r
who seek to use it, of "legal pluralism" (the fact that real soci~l hfe IS
prodigal of sovereigns-different governments, officials ~t d_Ifferent
levels of government, "private" associations-each makmg Its own
brand of law in cooperation or competition with the others), and of
the complexity and perversity of legal/social relations (how it so
often happens that a legal form seemingly designed to strengt~en A's
at the expense of B's ends up wiping out A's and entrenc~mg B's
more immovably than ever). So much indeed have the Reahst functionalists accomplished that it's hard not to sy~pathize wit~ th~ir
resentment of Critics who seem to be trying to displace them JUSt as
28. See, ~.g., Priest, Th~ Common Law Process and th~ Sdution of E.Jfzciml Rules, 6 J. LEGAL
STUD. 65 (1977); su also Goodman, An Economic Tluory of th~ Ewlution of Common Law, 7 J.
LEGAL STUD. 393 (1978); Rubin, Wlljl Is th~ Common Law Ejjicimt?, 6 J. LEGAL STL'D. 51
(1977); Terrebont,:, A Strictly Ewlutionary Model of Common Law, !0 J. LEGAL STUD. 397 (1981).
29. Su 0. WILLIAMSON, MARKETS AND HIERARCHlt:S: ANALYSIS AND ANTITRUST IMPLICATIONS (1975).
.
30. Set Clark, Th~ Four Stagu of Captialism: RljfLclions on /mxstmmt Ma11agmunt TuattS~s, 94
HARV. L. REV. 561 (1981); Clark, Th~ lnt~rdisciplinary Study of &gal Ewlution, 90 YALE L.j.
1238 (1981).
31. Su, ~.g., P. SELZNICK & P. NONET, LAW AND SOCIETY IN TRANSITION: TOWARD
RESPONSIVE LAw (1978).
106
70
I.
"I
Critical
STANFORD LAW REVIEW
[Vol. 36:57
Law-and-Society studies are be innin

stream lawyers who
"l
g
g to make a dent on the mainRealist empiri.CI.sm , ~Mnti rtecentlly, showed little more than scorn for
us we a ways " th

ingly, "be patronized b l
. ,
e empir~cis~s ask despairand no respect for fact~ ~e; With fancy theones m their heads
dialectical m~ment of .
Ig t not our m~vement be allowed its
ity drag it away?"32 supremacy before the tides ofCritical negativThe Critics can give this cri de coeur
.
Any intelligent Critical a
h .
a straightforward answer:
empirical findings of Realh~~~~~ti:~li=~; use of the insights an.d
aspects even to the R r
.
, but there are apologetic
Critics feel compelled~~ Irset ~etrsiFons of the dominant vision that the
.
SIS . or example by e h . . l
pohcy, Realist functionalism al
, . mp asizmg aw as
what it believes to be the ve rna~~~ lunconscw~~ly reserves even
ence on the direction f ry l hg a opportumties for legal inftu0 SOCia C ange to an elite
f
!"
k
. ~ po Icyma ers:
M ass movements and local stru
makers of legal change 34 B ggl~ are not ordmanly thought of as
.
.
ecause It assumes a nat
I h
mterests
in the fulfillment o f socia
. l nee d s It
. has tr ura
of
bl armony
.
.
I d"
b,
. ou e seemg conft ICt as other than dysfuncti
-with all regard for its herofcn:on:;~~r .ance of eq.uilib~ium. And,
working assumptions misl d" I
.uti~ns, beheve Its essential
contingent developments ea mg y ~bJectify history, making highly
Th C . ,
.
appear to ave been necessary.
e ntics basic argument
l b
d
that by taking the world as
k- e ~ orate more fully below-is
personal social forces evolut::a~~7u~~~s la~~ely ~etermined by imwhich these seemingly ine "t bl
wna Ists o scure the ways in
t~red by people who claim (~~d ~Jroc~ses are actually manufacsively adapting to such
;;re themselves) to be only pasprocesses.
If there are evolutionary
January 1984]
33. I give examples 'of such uses at text accom

.
.
34. How ironic it is that th
panymg notes 61-71 z'!fra.
d
l I
e country whose People by th . ffi . I
gate on y imited powers to their State wh
.. '
. e~r o Cia ideology, have deleorganized by "the people out of doo :,
osed pohtl~a~ ongins lie in revolutionary protests
I I
rna
d h
rs, crow s explicitly cia .
cy; an w ose history is so full of m
r.
lmmg ega status and lcgitiTory legal literature, narrowly focused
r~ o_r7 move_ments should have produced such a
completely indifferent to extra-institutionna~l" Cia agk~ncles, especially the courts, and almost
form " w''th'm " an d "outside" the "syste " . r...w-ma
. mg
. . On the d'aluerent conceptions of reVisions of Practice zit .&gal Thought, 36 S~~~ z.r;~; ~beral and Critical thought, see Simon,
. 35. Eor example, the functionalist law "ers wh . 69 (1984) . .
latmg labor-capital conflict after World W y II
o helped to deslg!' the ground rules regunomi_c pie (which was in everyone's interes~r re ~sumed that th~ expansion of the total ecoover mvestment decisions and general work? qUlr~~. unconstr~med management discretion
ng con lllons, leavmg to resolution through col-
:ss
CRlTICAL LEGAL HISTORIES
71
processes in social life, they are processes whose logic is .one of multiplicity, not uniformity of forms. The social nature of human beings
reveals itself not through constant responses to their environments
but through an astonishing diversity of cultural responses and, most
remarkable of all, a repeatedly demonstrated capacit)l to reimagine
36
their situations so as to generate novel responses still. We invent
shorthand labels like "modernization" ~ a way, of summarizing what
has happened in an.d trying to generalize about the history of particular societies. Then, by a trick of the.mind,. we suddenly reify our
label into a process that had to happen.the way it did. The next thing
you know, we start explaining the whole contingent miscellany of
contemporary social practices (especially the n~ty ones) as the,natura( outcome of the "modernization process." But if there is no such
single process, there can't be any single set of functional responses to
it either. Surely there are other ways of thinking about history that
don't trap us into supposing we're permanently stuck with what we
happen to be used to, with only the tiniest margins for maneuvering.
The hope of getting out of that trap ap.q of exploring the alternatives
is what fuels the enterpris~ of criticizing the dominant vision.
32. Trubek, Cniical .&gal Studz~s and E

...
cially useful statement of the differe
b '7',mczsm, 36 STAN. L. REv. 5 75 (1984) is an espences, ot real and supposed, between CLS and the Lawand-Society movement.
107
Studies
Ill.
PARTIAL CRITIQUES: VARIATIONS ON THE DOMINANT

THEME
I call the sample of views that follow "partial" critiques because

they remain faithful to many elements of the dominant vision while
rejecting others. These critiques come from all colors of the political
spectrum.
A.
Variation # 1: .Collapse "Needs" into "Interests"
This move is so common that it could be called a subtheme rather

lective bargaining only the residual issut of how to divide the resulting surplus. Critical historians treat this more or less unexamined background assumption of a relatio11ship of social
necessity (efficient production requires legal forms preserving managerial prerogatives) as an
ideological practice that helped to produce sqcial necessity because it suppressed alternative
methods of governing production as unthinkable or unrealistic. Thus, in company with many
other social actors, lawyers were more or less unwittingly reproducing the world they were
use~ to-actually helping to create what they imagined to be the given, pre-existing "hard
social reality" of the situation-because they were trapped in a functiom\list logic that told
them the basic conditions of the production process had to remain much as they already were.
36. SuS. GoULD, THE MISMEASURE Ol' MAN 324-34 (1981) (what is biologically determined is a brain capable of creative variation in its cultural environment); Geertz, Tlze
lmpatl of the Concept of Culture on the Concept of Man, in C. GEERTZ, THE INTERPRETATION OF
CuLTURES (1973) (the human species realizes its "nature" not through uniformity but diversity of cultural forms).
'
108
I,I
72
STANFORD LAW REVIEW
[Vol. 36:57
than a variation of the dominant view. It consists simply of breaking

down the universal category of societal needs into the particular conflicting desires or interests of society's members. The function of law
then becomes that of responding to some balance of those, interests.
This variation has an interesting history of appearances in moderr~ legal s~hola~hip. Towards the beginning of this century, a
wnter who tdentlfied the factional pressures behind the the creation
of a le~al fo:m was usually describing either an abnormal and regrettable sttuatwn or one that had happened a comfortably long time
before. Explaining the political and economic origins of old law was
~11 rig~t so long as you made clear that recent law had developed
md~pendently o~ all pr~ssures save the "taught tradition" of the profession. If you dtd attnbute a class or special-interest origin to contempora~ law, you did so in ordet to condemn it. Thus, legal
conser.vattves_condemned wages-and-hours laws as "class legislation,"
and Progresstves condemned judicial invalidation of such laws as
caving in to the Interests at the expense of'the People.
But with time and growing disillusionment with the regulatory
welfa~e state,. one could hear more scholars, of whom perhaps the
most mfluenttal were Lawrence Friedman and Gabriel Kolko explaining not just bad law but a// law as the product of interest-~oup
pressur~. 37 The~e writers were soon joined by the Chicago-school
economists, the s1res of the modern law and economics movement in
rapidly increasing numbers. And if today you hear a voice claiming
that a legal ru~e was adopted because its adoption served the interest
of some :egulated industry, or that a complex procedure exists only
b~cause 1t mak~s money for the legal profession-explanations of a
kmd one~ desptsed by_ mainstr~am lawyers as the paranoid cynicism
of Popuhst ~nd ~arx1st vulgarzsateurs-the voice as likely as not belongs to a nght-wmg economist. 38
There ~re severa_l different ways of characterizing the interests
that law tnes to sattsfy. Right-wing economism says that interests
37. &e, e.g., L. FRIEDMAN, A HISTORY OF AMERICAN LAw (1973); G. KOLKO, THE
TRIUMPH Ot CONSERVATISM: A REINTERPRETATION OF AMERICAN HISTORY 1900-1916
(1963).
'
38. See, e.g., Pashigian, Regulation, Preventiue Law, and the lJutia (}/ A1tom9r, in THE
CHANGING ROLE m THE CORPORATE ATTORNEY 3 0"/. Carney ed. 1982) Stigler The Theory
(J/Eonomi Regulation, 2 BELL]. EcoN. & MGMT. Sci. 3 (1971). The econo:nist ca~ afford this
kind of candor about political pressures on law because he's got the suprapolitical norm of
"efficiency" to fall back on. The left-wing writer, on the other hand, is much more likely to
argue t?at the legal system is "relat~vely autonomous," not completely to be explained by this
sort of mfluence. Su notes 86-88 mfta and accompanying text.
January 1984]
109
Studies
Critical
73
are just the arbitrary desires of individual subjects, revealed through

crude behavioral proxies s~ch as "willingness to pay" or votes. This
school has no theory at all of how such desires origin.ate, exce?t ~er
hapS' a vague notion that people in a given occupattqnal_ or mstltutional role will want to maximize the interes\ the theonst casually
attributes to that role. 39 Centrist-liberal pluralism discovers what interests are by looking at. the programs of organized groups and
largelyexplains legal enactments as compromises among ~hose inte~
ests. While this view is certainly a big advance over the v1ew of society as isolated individuals or roles, its ~ainstream fo~ms have been
famously vulnerable to the charge oflackmg any plaus1bleaccount of
power or social structure that would help explain why some groups
get' their way more than others or why some groups never get t~ be
4
"interests" at all because they can't organize. Finally, vanous
economisms not all on the left, do pay attention tQ power and social
structure and explain law as the instrument of mling gro~ps: These
last merit their own subheading and are treated under Vanauon #2.
But before going on to the rest of the Variations, it's worth pausing to ask if this first one, the reduction o_f need~ ~o interests, represents an intellectual advance over the dommant v1s1on. In some ways
it clearly does: By assuming that conflict is a normal feature of social
interaction this view focuses attention on the distributional struggles
underlying' legal enactment and implementation and helps to identify who wins and who loses from different regimes of law. ~t a~so
enc~JUrages descriptions of law-in-society that are populated w1th mdividuals and groups with aspirations and strategies and that are
thus more concrete than the frequently vague allusions to the impersonal background forces of development that serve as. the pr~ma~
motors of change in tl}e dominant tradition. After long tmmersw~ m
writing that grounds legal change in. the ghostly pressur~ of evo_lvmg
doctrines or in such causes as ' 1increasing social complexity and mterdependence," one feels an amazed and delighted gratitude at coming
across an account that tells you that some piece of law too~ the form
it did because a shipper's lobby, or homesteaders, or a coal company,
or a Senate committee chairman wanted it to.
Almost needless to say, such accounts are often fatal to the nor39. For example; stockholders "want" profit on their investment and easy exit; work.ers
"want" higher wages and benefits; neither "wants" a stake in management of the enterpnse.
40. &e Parker, The Past (}/ Conrtiluti'onal Theory-and zis Future, 42 OHIO ST. L.J. 223
(1981).
74
STANFORD LAW REVIEW
[Vol. 36:57
mative element in legal histories. 41 Yet the switch from needs to interests is by no means all gain. For all its problems, the functionalist
perspective recognizes that societies have to be understood as systems
and structures, not just as a series of collisions among the preferences
and strategies of their constituent members: All these people participate in and are constrained by structures of discourse, ways of thinking about reality and right, cultural inheritance, and political and
organizational forms that shape desire and channel its expression.
The subtler exponents of"instrumental" theories of law (as this Variation's theories are commonly called) have always recognized this.
The more reductionist exponents, principally the economists, seem to
think that one is puncturing all the vagueness involved in reifying
"society" into a thing with "needs" by getting down to the nittygritty reality of concrete individuals and groups. But the "interest
groups" of pluralist theory and the "individuals" of economic theory
are no less reified and no more real entities than is the "society" of
functionalists; they are just as much products of socially created and
maintained categories of thought and conventional practices.
B.
111
110
Variation #2-Transpose "Needs" into "Domzizatzon"
In other words, every time a mainstream writer says a legal rule

or process or institution serves the needs of soc~ety, show instead how
it serves to maintain the power of a dominant class or gn;mp. Opponents of this variation are inclined to call it "Marxist," although the
classical Marxist theory of law is just one highly specific subset of this
variation. 42 In reality, this general proposition would be adopted as
well by many non-Marxists: by elite theorists, including conservatives like Alexander Hamilton, who think the ruling classes ought to
control the legal system, and by fatalists, who think that for good or
ill elites will always be in control and indeed that having control of
41. But not necessarily. It's quite possible, and indeed frequently happens, that a legal
writer may combine an interest-group perspective with a functionalist one. The writer could
argue, for instance, that needs appearing at some stage of historical development generate
interests to assert those needs; the legal system then responds to those interests. Alternatively,
the writer could take the view that the "market" for law-responsive-to-the-demands-of-interests tends toward a long-run equilibrium; and this view could (though it need not) be a normative one such as that of interest-group pluralism, in which the primary if not exclusive
virtue of a legal system consists in its responsiveness to such demands.
42. The classical Marxist theory closely resembles the dominant liberal vision in that it
holds legal institutions to be functionally responsive to the needs of the basic modes of production which define successive stages of a macrohistorical evolutionary process. For a useful
summary account of the theory, see G. McLENNAN, supra note 4, at 3-23, 45-65.
January 1984]
CRITICAl: LEGAL HISTORIES
75
the legal system is one of the things that helps identify those elitesY
On the other hand, modern marxisant theorists of law and the state, ~s
well as most Critical Legal Studies people, have becom~ so dishanted with the project of trying to explain law as nothmg more
~~~n the too'! of the ruling class that their ideas can't be adequately
treated under this subheading.
.
The great contribution of this variation has been to_ put soc1al
structure class and power-whose very existence much hberal legal
writing s~ems ~ 0 astonishingly to deny-back int? our accounts of
law. Histories of legal oppressions-of slavery, Indian Re~ovallaws,
Black Codes, labor injunctions-are indispensable remmders that
there's often nothing subtle about the way the po~er_fu~ depl?y the
legal system to keep themselves organized and their victims ~Isorga
nized and scared.44 But the crude versions of_the l~w-as-an-eht~~tool
theory are as vulnerable as mainstream funct10nahsm to the cr~tique
which points out how incredibly difficult it is to relate events !n the
realm of "law" in any straightforward causal way to those m the
realm of "society."
c.
"ariatzon # 3-- Weaken the Instrumental Lzizks Between Law and
Y(
Society
Instrumentalist theories of law-which here include m_ai~stream
functionalism as well as the right-wing economics of Vanat~on # 1
and the orthodox Marxism of Variation # 2-generally aspire t? a
positivist style of explanation. The ide~ is_ that s?meday (that Jubtlee
when all the data have been gathered m) we will be a~le to ge~~ra
lize convincingly and fairly abstractly about what soctal c?ndiUons
will produce what legal responses and what ,effects upon society those
responses will have in their turn. Yet I think it's f~ir to s~y that o?
the whole such statements of regularity in lega)-soc~al relat10ns don t
.stand up very well to historical criticism. 45 These statements keep
G MOSCA THE RULING CLASS 130-34, 409 10 (1939).
43 s.u, t .g. ,
'
h"
j GAVENTA POWER ANO
.
d
44 An especially fine and subtle work m t ts genre IS
PowE~LESSNESS (1980) (describing use of terror, intimidat~on, con~rol of t~e med_':.' anAm:~
nipulation of the legal and political processes in employers campatgn agamst strt mg'" PP
lachian mineworkers).
ld
re
45 This is a rather large assertion, for which thorough documentat~on wo~ requt
combi~g mainstream legal scholarship for propositions _suggesting functional hnkages ~c~
tween le al forms and material conditions and the~ trym_g to show what was wrong Wit _
gh
What I've done here instead IS to p1ck out some commonplace exam
every sue proposttton.
. h
1 t"1011 that
pies of such propositions, all of them backed by respectable sponso~, m t e suppo~
_
they are representative samples of the whole bulk. Readers who thmk the examp es are un
fairly chosen are urged to produce better ones.
112
Critical

76
STANFORD LAW REVIEW
[Vol. 36:57
runnin&: up ag~i~t (a) comparative studies showing that social and

economic cond1t1ons that are apparently similar in relevant respects46
have actua~ly produced rad_ically different legal responses and (b)
demonstr~tlons that the soc1al effects of adopting a legal form are
neuer p_red1ctable from the form itself, because the interpretation of a
~orm, Its ~n~orcemen~ by l~w~r-level officials, and the response it's
hkely ~o ehc1t (e?t.husiasm, md1fference, resistance) may all vary with
the mmutest particulars of context.47
Take? f~r example, the. once familiar proposition that the neglig~n~ p:mcpl~ was a_funct10nal response to the social needs ofindustnahzauon _I~ Its _earher phases (because it protected infant industry
by externahzmg_ 1ts costs onto farmers, workers, city residents, etc.).
T?e _proble_ms w1th this proposition are that (a) lots of societies industnahzed without the negligence principle or after the principle had
b~en ~ro~d so long that it could hardly be a "response" to industriahzat!on, . and ~) the fact that there was a "negligence principle"
doesn t by 1~sel~ 1mply any ~eterminate set of social consequences be~use the :pnnc1ple can be Interpreted (or ignored) by judges, adminIstrat~rs, }urors, _or . ~mployers so as to produce any imaginable
combmat10n of habll1ty and damages (including none of either).49
~- Of course one ~uld argue that situations are never similar enough in type to alford
a b~~~/or sfuch ~mpanson~, but so strong a form of' historicism would doom forever the
posst t tty o a htstoncal soctology of law along functionalist lines.
. 47. ~ ~hould stress here that the most valuable criticism of this type has not come from
people, but from within mainstream liberal scholarship itselfradtcal cnttcs,_ nor ~rom
f~ot_n (a) funct~o~ahst soctal theorists such as Weber, who conscientiously raise difficulties with
t etr own pos~ttons; (b) legal historians such as Scheiber and Hurst, who seem to have a
gener~l comm;tment to the notion that law responds to social needs, but whose particular
narrattves un ercut any strong version of functionalism by revealing how various the responses hav: been; (~) legal historians who tend to explain law as the product of interest~up conlltct, espectally Friedman, ':"ho has. always emphasized how many different techntq~~ le~al or nonlegal, can serve an economtc function and refused to give any legal form a
pos~tto~ 0 ~u~ necessity. See, e.g., L. FRIEDMAN, .rupra note 37, ai 234 ("It is doubtful that
mdaJesbttfitcl caphttahtsm wo~fild have smothered in its crib without the rule of cawal nn"lo' It is
ou . u weterspectcdoct"
"IIaw were cause, effect, or condition
r
. .
nnes o f commercta
of
Amh" e~can capthtahsmh; or a!l or ~one of these." (footnote omitted)); (d) institutional-economic
work on the role of
htstonans,. sue as t . ose ctted mi:-a
:t" note 62 wh o h ave d one comparauve
t e. state tn promotmg a~~ regulating economic development; (e) the work of the law-andon .the gap between law on the books and the 1aw tn actton,
" stressmg
1h e
society movement
1
stud yo f tmp
0 f Forma I"1St
J" ementatton
of legal rules' and finally (f) the Legal R ea I"IS tS crtttque
conceptua tsm, stresstng the dependency of textual meanfng on context and convention
?LS
~ R:e, ~~S ~:~): ~ Hislonf:al Dtwlopment o.ft/u Faultl+inciple: A Reinterpretation: 15

,., : l ;, , ". 90 y
LJ wanz, Tort Law and tlze &onpmy in Nineteentlz Centun Ammf:a A
nnnnrrt.alzon,
ALE .. 1717 (1981).
-,/
GA
49. "There were and always are rules and counterrules, rules with exceptions of such
scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively
January 1984]
113
Studies
77
These signs of indeterminacy naturally do not -daunt the committed

functionalist; they only spur him on to more refined hypotheses that
will account for most of the variations. But in practice the progressive refinement of genera( statements about causal relationships between legal and social forms tends rapidly to decompose such
statements into the detailed histories of particular societies. One's
brave and sweeping original hypothesis of .the necessary relation between industrialization and a negligence standard of liability gets
boiled down to something like this: "In those places where the negligence principle was recognized and routinely applied in a certain
way, it may have helped somewhat to facilitate capital accum~la
tion; in other places, where there seems to have been lots of capital
accumulation under different legal conditions, (a) some other form
served the same function as the negligence principle, or (b) for various special reasons it wasn't necessary to the accumulation process ~o
liave that function served, or (c) perhaps there would have been still
more accumulation if there had been a negligence principle."
There's not~ing wrong with this modest sort of proposition; it's the
common st~ff of historical writing. Bu~ it is an awfully long distance
from demonstrating that economic requirements produced the form
and that it duly performed its functional services to those
requirements. 50
A Functionalist thus. subdued can continue to argue for a scaleddown determinism: the legal forms that ac~ually emerged in a particu~ar society were necessary to that society's particular requirements. Even if a negligence rul.e was not necessary for
industrialization, p~rhaps the fellow-servant rule, as administered to
workers on the railroads or just the Pennsylvania Railroad in the
1870's, was critical to that indust!)''s ability to finance its expansion.51 One can't disprove such an assertion. Bec;1use everything
on analogies to apparently unrelated areas of law, and so on." Tushnet,.Book Review, 69
CORNELL L. REV. 281, 281 (1983).
50. Of course, lawyers or entrepreneurs of the time often bdieved that a given legal form
was an indispensable condition of material progress or social stability and pressed for its
adoption or retention because of that belief. But the hi~torian :-"ho casts her ~roje~t as that of
reconstructing such beliefs has abandoned functionahsm enttrely for the htstortography of
legal ideology or consciousness. See Variation # 7 in.fta.
51. R. FOGEL, RAILROADS AND EcONOMIC GROWTH (1964) is an extended
cliometrician's tour de force purporting to demonstrate that tlu railroad itself was unnecessary to
nineteenth century economic growth. The thesis is violently controversial, but th~ argumen~s
in its favor are not trivial. And if a leading economic historian doubts the functional contrt
bution of the railroad, are lawyers, equipped with perhaps one percent of that historian's
technical sophistication and empirical data, likely to succeed in making the case for the functional necessity of the fellow-servant rule?
114
Critical
78
STANFORD LAW REVIEW
[Vol. 36:57
that ~as happened in history is causally connected to everything else,

the~e s no wa~ to be sure t~at the connections were not forged by' a
logic of ~ecessity. Even actwns that seem chosen or simply accidental may JUSt look that way because we haven't yet discovered tlte
secret logic underly~ng them. 5 2 Yet, without for a moment disputing
that ~he for~s that mdustrial capitalism and the negligence principle
took I~ the mnetee.nth-century United States might be related, is the
evolutiOnary-functiOnalist hypothesis (law meets the needs of the deve~oping e~onomy) the most p!ausz"b/e means of relating these two
thmgs? It Is.here'that the ~omparative data revealing all the myriad
paths to .capital accu~ulat10n and the legal-realist data revealing all
the mynad permutatiOns that a legal form undergoes in practice
should at least make the functionalist hesitate.
Let me illustrate what I mean through what I mentioned earlier
as probably the ~ost frequently asserted functionalist proposition
about law: the ~laim that various regimes of legal rules were necessary .or at least very useful to capitalist development because they
provided the certamty that facilitated rational calculation. The
st.rongest versions of tliis claim p'ropose, for example, that the rules of
mnet~enth-century contract law functionally responded to the need for
cer~amty: When commerce summoned loud, "Thou mqst! " contract
- '53 but it is
w h Isp~re d Iow, "I can! " One hears this claim all the time,
~ery d~fficult to sustain. Such evidence as we have suggests that tracmg the com~on law doctrines and institutions for enforCing contracts to busmess~en, those .":hom one might expect t<> be society's
pre:erred mouthpiece for voicmg her needs, is very difficult. When
?~smessmen say ":hat they want from an enforcement mechanism,
Its usually somethmg along the lines of an arbitration process. 5 4 To
be sure, t?e legal system may have been wiser than the businessmen
about their tru~ needs: Lawyers undeniably thought so, as they liked
to promote their products-the common law of contracts; treatises,
5_2.
~mpare, for exa~ple, the hypothesis that both
the
negligen~e principle and
the
~rgamzatJOnal structures of 1~dustry were products of a common political/legal ideology that
~lke_d _to preten~ that everythmg that happened in corporations was" the product of voluntary
mdlvldual ch01ce.
53. The claim most recently appeared in P. ATIYAH, THE RISE AND FALL OF FREEDOM
OBF CkoRN~ACT 420-24 (1979). This aspect of Atiyah's work is shrewdly criticized in Mensch
oo
ev1ew, 33 STAN. L. REV. 752 (1981).
'
54. &~, ~.g., J. AUERBACH, jUSTICE WITHOUT LAw: NONLEGAL DISPUTt: SETTLEMENT
IN AMERICAN HISTORY 95-114 (1983); Feinman, Crztica/ Approaches to Con/rae/ Law 30
U.~.L.A._ ~- REV. 829, 847-52 (1983}; Ferguson, Legal ld~ology and Comm~rcia/ /nt~r~sls: Th~
Socza/ Ongms ofth.r Commacial Law Codu, 4 BRIT. J.L. & Soc'y 18 (1977) S
.
note .
, ugarman, supra
January 1984]
115
Studies
79
Restatements, and commercial codifications-for their presumed

tendency to "increase the certainty and predictability" of commercial transactions. Yet, in retrospect, the lawyers' goal of certainty appears to have been largely a legal fantasy. Formal rules framed in
juristic categories, such as "offer and acceptance" and "consideration," that have no regard for the specific usages of real businesses are
. not predictable. Nor are rules phrased in terms of general standards
.
r
h
"
bl
"
d " goo d 1a1
r "th ," so
0 f customary 1atrness, -sue as reasona eness an
a5 to incorporate those usages. And even if such rules were predictable, businessmen don't seem to pay much attention to them until
the rrare) prospect of litigation looms. 5 5
Further, when one looks at the early nineteenth"'Century legal system as a whole, rather than just at contract law, and to the system in
operation, rather than just its formal doctrinal expressions; can one
really say that this system made life more predictable for rational
capitalist planning? Sometimes, perhaps. Other times, surely not.
The law of that time, for example, rapidly divested a whole slew of
previously vested legal rights-rights to monopolize resources, to enjoin nuisances created by new industry, to collect compensation for
"indirect" property damage, and' so forth. 56 Should one therefore
say, "The l!!gal syst~m was a functional response to t}:le capitalist
need to destabilize everyone's expectations, to put all property rights
at the risk of devastation from competition or from exposure to spillovers' from capitalist enterprise?" Early nineteenth-century governments alsd created commons out of large bundles of previously vested
55. Su, .r.g., Gordley, Europ.ran Codu and' Ammcan R.rsla/munl.r: Som.r DijJicultie.r, 81
<i:OLUM. L. REV. 140 (1981); Macaulay, Non-Con/rac(ual &lations in Business: A Prdiminary
Study, 28 AM. Soc. REV. 55 (1963); Gordon, Book Review, 36 VAND. L. REV. 431, 447-49
(1983).
M-;_x Weber, who wrestled with these problems more than anyone else, never claimed
that lawyers, in creating these"rules, were responding to the' functional needs of capitalists. He
argued instead that lawyers were carrying mit their project of legal rationalization for intellectual and status reasons of their own and that the culmination bf their project happily
coincided with the needs of capitalists for predictable rules. But the conscientious Weber had
to back away from even this less deterministic, filore cautious and more convincing theory of
legal/social relations when he confronted the problem of England, a society with lots of capitalist development within an apparently woefully underrationalized legal system. This discovery led him to reflect that perhaps the practical-minlied, business-oriented lawyers of
England had devised a body of rules that was operationally mar~ predictable than the highly
formal rule-schemes of the Continent. Yet if thai were so, his main thesis about the calculability of highly formal rule-schemes was itself thrown into doubt, as he himself acknowledged.
For exceptionally good treatments "'Of these aspects of W,eber's work; see A. KRONMAN, MAX
Wt::Bt:R 118-25 (1983); Trubek, Max'W~ba and th~ Ri.u OjCapztalism, 1972 WIS. L. REV. 720.
56. SuM. HORWIT.l, THE TRANSt"ORMATION Ot" AMERICAN LAw, 1780-1860, at 31-62
(1977).
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individual entitlements, insisting on the community's power to subject property to takings or regulations for public uses. !> 7 Should one
thus say, "The legal system responds to the need to sacrifice individual expectations to capitalist need~ for social overhead capital?" And
what if one takes a closer look at what lawyers actually did for their
commercial clients? One would find, it appears, that one of their
main jobs in their roles as debt-collectors was to mediate in bad times
between their creditor clients and the debtors, not pushing collection
to the limit but trying to reschedule and scale down debts in order to
keep everyone afloat until the upswing of the business cycle-in effect helping to redistribute losses among the whole trading community.58 Should one then conclude, "The legal system responds
functionally to the needs of capitalism not to have legal rules enforced too strictly?" And one,still has to account for what look like a
large number of anticapitalist rules, such as those restricting corporate powers, capitalization, and attempts to limit liability. 59 Perhaps
here the explanation should be, "The legal system responds to the
functional needs of capitalism to make concessions to its anticapitalist opponents." If one should be tempted to dismiss such rules (which
I. think wou~d be a serious mistake) as a?err;ant spasms of dysfunctiOnal Ludd1sm, one can hardly do the same with the entire law of
slavery or with the crop-lien system, which effectively tied farm labor
to the land, that replaced it. 60
It's worth repeating, since arguments like ~hese are so often misunderstood, that this case for the indetermil).acy of legal-economic
relations is directed against certain typical propositions of relations of
functional necessity, usl!ally expressed in statements that some economic process "required" support from the legal system, which then
responded to "meet the needs" of that process. The argument is not
57. See Scheiber, Tlu Road to Munn: Eminmt Domain and th~ Conupt ofPublic Pttrpos~ in th~
Stat~ Courts, in 5 PERSPECTIVES IN AMERICAN HISTORY 329 (1971).
58. Su I THE PAPERS OF DANIEL WEBSTER 101-04 (A. Konefsky & A. King eds. 1982).
59. See, ~.g., J. CADMAN, THE CORPORATION IN NEW jERSEY: BUSINESS AND POI.ITICS
1791-1875 341-62 (1949); E. DoDD, AMERICAN BUSINESS CORPORATIONS UNTil. 1800
373-90 ( 1954); j. HURST, THE LEGITIMACY OF TliE BUSINESS CORPORATION IN THE LAw OF
THE UNITED STATES, 1780-1970, at 12-57 (1970) .
. 60: There is actually a. ~airly strong functional case for slavery's contribution to the
capaahst economy, though It s not one that modem liberal lawyers often make. For one
thing .slavery seems to have been quite an "efficient" system of production in itself, as well as
the ~nma~ generator (through cotton exports) of the foreign exchange that financed Northern mdustnal development. For another, it was slavery that made it possible for whites to be
the independent individual proprietors who are the heroes of the Scottish enlightenment story
of the expansion of liberty and commerce. E. MORGAN, AMERICAN SLAVERY-AMERICAN
FREEDOM (1975).
January 1984]
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81
that "legal" and "economic" practices ~e~r poor purely random relations to one another (though many Cnttcs doubt that these categories are very helpful). Regular, patterned, and modera.tely
predictable (at least in the short-to-~edium-term) causal r~lat10ns
are always springing up between spec1fic legal and economic practices-though the lessons of Realism are that on: has to get down to
very concrete situations before one can ~escnbe w~at t?ey are.
These causal relations seem to contemporaries and to h1stonans who
study them later to work loosely tog~ther in~o som~ s?rt of. system.
Lawyers make their livings from the1r expenenced ms1ghts. mto the
operations of these patterns or systems; policymakers and mvestors
make informed guesses, which are certainly ,not always wrong, th~t
the patterns will continue. to hold .. Th~s Variation's. argument Is
that-though contemporanes and h1stonans often b~heve the co~
trary-all the pieces of the system are very loosely articulated: l~di
vidual pieces, even quite large ones such as t_he ~undamental premises
of civil liability, the organization of enterpnse m the ~o~orate form,
worker's compensation schemes, or even the p~ogresslVe m~ome tax,
could have been even radically different Without drastic ~onse
quences to the master social/economic processes .th~t t~e functiOna~
ist has supposed to require them. The next Vanat1on s argument IS
that the master social-economic processes themselves could have been
different, even radically different.
D.
Vanali'on # 1-Tum Background Soczal N~cesszty into Contingenry
The preceding discussion pointed out t~e pe~ils of matching legal

responses to social needs: You end up havmg either to concede ~hat
the law has responded differently to the same n~eds or to multiply
the number of needs in order to account for the differences. The first
move calls into question the "functional" nature of the legal ~e
spo~ses, the second whether it's ~seful to att~~but.e .:'needs" to societies at all, especially needs emergmg from the log1c of some stage of
historical development.
Let me illustrate this second point by continuing the example I
used in my earlier discussion-the claim that. lega~ rule.s promoted
capitalism by providing certainty. The earher d1scuss1on showed
that -it was dubious that the legal rules provided certainty at all.
That is the rules as implemented often did not have their intended
effect. 'Further, there were many legal rules that actually ~reated
uncertainty. And the functional explanations for these rules mvolve
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a variety of hypothesized social "needs," which are sometimes

conflicting.
The t~ue f~nctionalist, the functionalist sans peur et sans reproche,
may at th1s pomt refine her theory so as to explain how all or almost
all, of these diverse legal phenomena meet social needs.~' But she
may now slide into the position that law just satisfies particular interests, rather than broadly defined needs, unless she can somehow objectify her notion of needs. This task, however-the specification of a
general legal sociology' of economic development-will not be an
easy. one. ~or. she ~il~ immediately run across highly evolved dynamic ~ap1tahst societies that got that way through (despite?) radically different. ~overnment policies towards capitalist enterprise:
refusal of subs1d1es for transport ventures, intolerance towards the
corporate form, state-sponsored insurance of workers against the risks
of unemploy~~nt and industrial accidents, coordination of major inves~ment dec1~1?ns through central bureaucracies, and promotion of
s?cml and poht1cal stability through legal reinforcement of the "feudal"
nghts of great agricultural proprietors. 62 Of course, a nimble mind
can invent a functional explanation for anything, reserving a residual
category of ."dysfunctional law" for the really tough cases, but such
an explana~wn,~ould har~ily square with the original "predictability
of transactwns hypothesis and would be in danger of falling into
C_?mpl.ete b~nal~ty. Banality becomes pure tautology when the functwnahst cla1m s. re?uced. to one that the legal system responded to
the needs of ~ap1tahsm w1th rules securing to individuals large bun~les of excluswn/exploitation/alienation rights that could be traded
m markets because such a legal regime is one of the main characteris. 61: She may now say, for example, that a legal system that is responsive to the needs of
captta~tsm helps to construct both the technological (e.g., subsidies and immunities to trans~ortatton n~tworks) and institutional (commerce-clause-based demolitions of local trade barne~, ne.gouable paper, security devices, and corporations and partnerships to mobilize
~apllal) mfrast~u:tures for the development of enterprise. Such a system also delegates major
mv~t.ment deciSlons_ to decentr~lized firms which are free to respond to market incentives;
entr~prmeunal
expectauons but destroys renti'er ones, b ut"lds tn
a d"~ustment mechastabthzes
.
.
ntsms to relax lis rul~ when st_rict enforcement would pull everybody down; pacifies opponents through strategtc concesstons, welfare palliations, or symbolic gestures; and so forth.
62. &~, ~-.!_ K. BARI$-IN, THE CONTROVERSY OVER GERMAN INDUSTRIALIZATION
1890-1902, pamm ( 1970); C. jOHNSON, MIT! AND THE jAPANESE MIRACLE" THE GROWTH
m INDUSTRIAL POLICY, 1925-1975,passzin (1982); C. KINDLEBERGER, Eco~OMIC GROWTH
~FRANCE AN~ BRITAIN 1851-1950, at 183-208 (1964); A. MILWARD & S. SAUL, THE DEELOPMENT Of THE EcONOMIES OF CoNTINENTAL EUROPE 1850-1914 at 318-22 (1977)
Landes, Th~ Structu~~ of Entffpris~ in th~ ninet~enth Century: the Casu of Britaz~ and Cermafl)', in
RAPPORTS: CoMITE INTERNATIONALE DES SciENCES HISTORIQUES, XL CONGREs iNTERNATIONALE DES SCIENCES HISTORIQUES 107 (1960).
January 1984]
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83
tics most people use to define capitalism. 63 But within that large definitional frame there have been many historical capitalisms. And
there might have been thousands more still.
I won't spend much time on this point because an immense Critical literature has done the job. The governing idea of structuralfunctionalist sociology that all societies have needs to maintain equilibrium has been sufficiently battered out of countenance, and the
grand evolutionary stage theories of eighteenth and nineteenth century social thought have been gradually picked to pieces. As I said
before, legal writers have had too, big an ideological stake in assuming that objective background forces supply the basic directives in
social life to have contributed much to debunking such assumptions,64 but the whole debunking literature is at hand any time we
want to tap into it.65 So let me leave this topic with a couple of quick
examples of functionalist theories that assume objective social necessity ~nd of the critiques that poipt out the contingent nature of that
"necessity."
(1) Some legal writers have recently been captivated by Alfred
Chandler's thesis about the emergence of large, vertically integrated,
66
multi-divisional forms of corporate enterprise in the United States.
This captivation is not surprising: Chandler's thesis in its most unqualified form perfectly suits the criteria of the dominant vision. It
63. The funny thing is that even the definition doesn't reallY' fit the historical experiences from which it was extracted. Sugarman, Law, Economy, and the State in England,
1750-19/1: Som~ Major /ssuu, in LEGALITY, IDEOLOGY, AND THE STATE 223-30 (D.
Sugarman ed. 1983) contains an especially useful discussion of the commonly held view that
"absolute rights of property" are preconditions or defining traits of developed capitalist societies. These authors synthesize the results of many studies of English property, showing that
property forms approached very close to absolute individyal owners~ip in medieval times,
and that a great diversity of restrictions and qualifications on property-holding forms persisted through late phases of capitalist development. See Kennedy & Michelman, Ar~ Property
and Contract EJ!icimt!, 8 HoFSTRA L. REV. 711, 764-69 (1980) (elegant demonstration that
societies claiming to give full legal protection to private property and freedom of contract will
also be found to legally promote (I) zones of unrestricted "states-of-nature," in which people
are privileged to destroy one another's property at will (e.g., competition), and (2) commons,
in which wealth is owned collectively and people are forced" to share in gains and losses).
64. There are distinguished exceptions. Su, e.g., I F. POLLOCK & F. MAITLAND, THE
HISTORY OF ENGLISH LAW 627-34, 653-57, 669-78 (1895) (confounding the conventional
wisdom on the evolution of property from communal to individual forms by asserting the
"individualism" of medieval property).
65. For a representative sample, see the works cited in notes 1-4. Su also Appleby,
Modernization Theory and th~ Formation of Modem Social Theories in England and Ammca, 20 COMP.
STUD. IN Soc'Y & HisT. 259 (1978) (discussing the different ideologies of "modernization"
adopted in England and America and the consequences of those differences for politics, economic policies, and social change).
66. Su A. CHANDLER, THE VISIBLE HAND {1977).
Critical
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STANFORD LAW REVIEW
[Vol. 36:57
hypothesizes that these developments in the corporate form are functional responses to a set of objective-sounding, universalizable historical condi_tions (the attainment of a given stage of develop~ent of
technologies and markets). But Chandler has taken his evolutionary
model abroad and found that, in various European countries at
roughly comparable stages of market and technological development, many of the features of American managerial capitalism were
missing, though some of them did show up much later, after World
War 11.67
,A _determ~ned evolutionist wouldn't be upset by this discovery;
she d JUSt attnbute the late developments in the European experience
t o an evo lu t"10nary "lag " 68 an d mvent
.
. reasons
some a d h oc special
for the missing ones. To his credit, Chandler is not content with such
a solution. He concludes instead that the differences are not entirely
attributable to flaws or deviations in the development of European
capitalism: They stem at least in part. from differences in "cultural
attitudes and values, ideologies, political systems, and social structures."69 The reason that this full range of complex variables wasn't
used in the first place to explain the American experience (and it
wasn't; there is literally not a word about culture or social structure
in !'~e Visible Han~ and only a few sentences about ideologies and
political systems) IS that Chandler is committed to the determinism
of "organizational imperatives." He thinks of the other factors as
affe_cting only_ the_ design det~il~ of the functionally mandated prototypical form m different societies: You can take it with or without
options, soup it up ,or make it ride low; but these alterations are as
. t s say, " superstructura1" : u n d erneath them allis
. the same 'old
M arxis
Chevy. One could have no quarrel with a method that combined the
various element~ of_ the American experience into an "ideal type," a
model of orgamzat10nal change self-consciously constructed for the
sake_ of comparative study; but there's a huge difference between
findmg model explanatory patterns and reifying them into immuta67. Su Chandler, The United Statu: &edbed of Managerial Capzia/ism, in MANAGERIAL HIERARCHIES: COMPARATIVE PERSPECTIVES ON THE RISE OF THE MODERN INDUSTRIAL EN
TERPRISE 37-39 (A. Chandler & H. Daems eds. 1980).
68. To me, however, a more promising sort of explanation might be found for instance
in th~ political/ideological/cultural reasons why French entrepreneurs resi~ted copyin~
Amencans before, but not after, World War II. See gmera//y R. KUISEL, CAPITALISM AND THE
~TATE IN MODERN FRANCE (1981) (discussion of French economic management in the twentieth century).
69. Chan?ler, supra note 67.' at 39. To give due credit to Chandler and the his1ory-of~ntr~preneurshtp ~ho~l from wh1ch he descends, they have always avoided the causal reducuomsm of economiC h1story as the rational maximizing of everything.
January 1984]
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ble laws of historical development. The illegitimate move, the move

that turns history into apologetic ideology, is to start supposing t?at
orte's ideal/typical pattern, actually made up of thousands of tmy
contingent practices, represents a universal historical.force.
(2) There are two basic kinds of determinist stories no"': cir~ulat
ing about the evolution of legal/social forms for the orgamzatiOn of
the labor force in modern American society. The first of these, now
much in vogue among lawyer-economists, stems from neoclass~cal
theories of the firm and "transaction-cost" economics. It theonzes
that rational profit maximizing fuels the search for cost-reduci~g innovations in organizational form as well as in technology. In this account the various hierarchical atrangements that have been used to
organize the work force appear as successions of progressively more
efficient methods of lowering costs of production, such as the cost of
70
monitoring workers to see they are doing as they are told.
.
The other main determinist story comes from the counter traditior~ now almost as venerable as the first, of Marxist accounts of indus;rial capitalism. A school of modern historians following the lea~
of Harry Braverman's pathbrea~ing work 71 has _transposed the optimistic theme of cost reduction mto the dark mmor key of dommation. For these historians, the evolution of work organization is the
story of the breaking of skilled workers' control over the labor t:>ro~ess
in the late nineteenth century and of the inexorable homogemzat10n
of labor through the deskilling of jobs. As it is for the cm;nplacent
functionalists a historical logic is at work here: not the logic of cost
reduction bu; the logic of the subjugation and degradation of labor
under the conditions of monopoly capitalism.
If forced at gunpoint to choose between these two stories, one
should probably choose the second, if_only b~cau_se it's backe_d up by
historical research into a lot of real mdustnes, JOb reorgamzauons,
and labor struggles; it has not'been generated, as the first largely has,
70. Su, e.Jf., Williamson, The Organization of Work: A C~mparatz~ /nstziutional Assusmmt,_ I
EcoN. BEHAV. & ORG. 5 (1980). This story is the latest m a senes now over two centunes
old of complacent functionalist accounts of how it's best for eve~one t~at w?rkc_rs ~re tr~ted
as they are in industrial societies. It even seems to be on the pomt o~ ~1splacmg tts 1m~ed_tate
predecessor, the Weber-Pan.ons-inspired industrial sociology explammg how the spec1ah~ed
work tasks and bureaucratic hierarchies of modern production arc results of_thc pro~r~ss1ve
"rationalization" of social life in modern society. (The sting in this sociologtc~l traditionWeber's own horror at the claustrophobic imprisonment of the freedom of creauvc movement
in the "cage" of rationality-was carefully drawn before export.) Su also ~~nnedy,_Cost Reduction Theory as ugziimation, 90 YALE L.j. 1275 (1981) (discussion of the pohucs oftlus evolu-
J.
tionary world).
71. &e H. BRAVERMAN, LABOR AND MoNOPOLY CAPITAL (1974).
Critical
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STANFORD LAW REVIEW
[Vol. 36:57
a pnori out of a formal model with only a casual smattering of allusions to the abundant empirical literature. The "efficiency" story is
also vulnerable on other grounds. For instance, many of the specific
features of early twentieth-century work organization, such as artificial job ladders fragmenting similar jobs into hierarchies of different
grades or the recruitment of many different ethnic groups followed
by the minute subdivision of departments by race and ethnicity,
seem far more plausibly explained as designed to divide and subjugate the work force than to reduce costs. Indeed, contemporaries
often observed that preventing labor from organizing was management's purpose. 72 In any case, the general thesis that hierarchical
forms of work organization are more efficient because they reduce
transactions costs is oddly inattentive to the possibilities of the
counter hypothesis that the best way to minimize costs of supervision
might be to delegate tasks to people you trust with lots of discretion
to work out the details of the job on their own, or for that matter, to
have them design the tasks in the first place. 73
Yet the story of the degradation of work under the logic of monopoly capitalism has problems of its own. That logic, if it was there
at all, worke9. itself out in remarkably various forms. Many studies
of specific labor-management .struggles have appeared since
Braverman wrote, studies that have stressed the importance of the
relatively underdetermined variable of working-class solidarity, trying to explain why that consciousness (which itself wasn't one thing,
but lots of different things, with different cultural/religious/political
roots) emerged in some settings rather than in others and how its
presence and the variant forms it took affected the counter strategies
of employers and the resultant capital-labor bargain. 74 In addition,
some of the most i~pressive studies we now possess, the historical
contributions of the segmented-labor-market economists, tell a more
72. For discussions of these explanations, see Marglin, What do Bossa Do?, REV. RADI
CAL PouT. EcoN., Summer 1974, at 60; Stone, Th~ Ongin ofJob Structuru in the Stullndustty,
REV. RADICAL POLIT. ECON., Summer 1974, at 113, 127-51; see also D. GoRDON, R. EoWARDS & M. REICH, SEGMENTED WORK, DIVIDED WORKERS: THE HISTORICAL TRANSFOR
MATION Ot" LABOR IN THE UNITED STATES 112-64 (1982) (summarizing the evidence of this
phenomenon).
73. For some interesting empirical support for this counter hypothesis, see, e.g., S.
BOWLES, D. GORDON, & T. WEISSKOPt", BEYOND THE WASTELAND 122-78 (1983) (on high
costs of centralized supervision of the workforce); A. Fox, BEYOND CoNTRACT: WORK,
Po~ER. AND TRUST RELATIONS 66-119 (1974) (on the importance of trust in workplace organtzatwn); C. SABEL, WORK AND POLITICS 220-31 (1982) (on emerging alternatives to
"Fordist" ways of organizing production in decentralized quasi:"cottage" industries).
74. See, e.g., H. GUTMAN, WORK, CULTURE AND SOCIETY IN INDUSTRIALIZING
AMERICA (1976); D. MONTGOMERY, WORKERS' CONTROL IN' AMERICA (1979)'.
January 1984]
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87
complex story than Braverman's, one ~n which employ~~ fm~nd,t_he

strategy of controlling labor by degradmg and homogem~m_g Jobs.mcreasingly futile by the 1930's and_-then promote?, the r~s~zllmg of certain jobs into an "independent pnmary segmen~ of pr_tvtleged labor,
thus both registering concessions to the gathermg umon mov~ment
and effectively limiting its spread. 75 Finally, a glance at t~e comparative evidence casts the usual doubts on whether any smgle set of
forms is req_uired to serve a given social function. If the goal was to
pacify labor movements, other means might have served than. the
degradation of work. The companies could have co-opted _the ~mons
through co-determination, or got the state_ to fold the ~mons mto a
tightly controlled junior role in a corporatist partnershtp, or treated
labor as a fixed rather than variable cost and given workers stable
wages and secure jobs in return for their undeviating discipline and
loyalty.76 Or, for that matter, the unions might actually have won a
measure of control over the labor process that s<,~.tisfied at least some
of their aspirations for honorable work at a decent wage. The unions
didn't win what they hoped for, and one can suggest many reasons
why they didn't (including lots of reasons having to do with law an~
the legal system), but the closer one.}ooks at the process, the harder 1t
is to find an inexorable logic to it.
E.
Variatzon # 5-Fi/1 the Vacuum Left by the Collapse of Functzonalism

with Disengagement, Legitimating Ideologies, or Symbolic
Ritualism
Now that historical experience has turned out to be too pr_odigal

of multiple developmental paths and of multiple leg~l adaptatlo?s to
those paths for the comfort of traditional functionahst explanau~ns,
where can one turn in the hope of finding some coherent explanau~n
of law-in-history? One possibility I've mentioned already: Explam
anything that happens in the legal system by referring t~ someone's
interest (Variation # 1). This method, subtly employed, ytelds narratives that are both subtle and exciting, but sooner or later, as every
legal change is attributed in turn to a different set of ba~gains a~ong
interests, as a form of explanation it's going-to seem dtscouragmgly
ad.hoc. Moreover, one must at some point deal with what's known
75. See D. GoRDON, R. EDWARDS & M. REICH, supra note 72.
76. For a useful analysis of mixed strategies of repression and co-optation adopted by
European states, see C. MAIER, RECASTING BOURGEOIS EUROPE 19-225 (1975); for thejapa
nese variation, see Levine, Labor Mark~ts and Col/~ctiue Bargaining in Japan, in THE STATE AND
EcoNOMIC ENTERPRISE IN jAPAN 633, 647-49 (W. Lockwood ed. 1965).
Critical
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STANFORD LAW REVIEW
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[Vol. 36:57
as the "autonomy" problem-the fact that legal norms and practices

aren't completely plastic and don't alter every time another set of
interests gets its paws on them because they do have some resilience,
some long- or medium-term continuity of inner structure. 77 Indeed,
one of the properties that makes them legal norms and practices is
that they at least appear to stand aloof from the everyday conflicts of
civil society and to provide stable structures for the mediation of
those conflicts. The classic preoccupation of legal sociology has been
to try to pin down what's in this "autonomous" realm and theorize
about its relation to the rest of society. I present three theories that
are especially relevant to the background of the Critical approaches
to legal history.
1. Disengagement.
By "disengagement" I mean beating a retreat to the position that

although law is something that happens within societies, it doesn't
have any important relations with the rest of society. Law is a realm
of its own with its own history and categories and professional habits,
and the only other thing you can compare it to is another legal system. You can't hope to explain anything that goes on in it except by
reference to its own peculiar internal details or to its borrowings from
the details of other legal systems. 78
77. If-just to focus on the most dramatic instance-one wants to explain the content of
the Federal Constitution, the Beardian method of analyzing the class positions and financial
stakes of the Framers is a perfectly valid first approach to the task (however snottily it may
have be~n treated by people who wince to see sacred writings traced to material interests).
But I thmk most people would now concede that this method yields results of strictly limited
value and that one can understand the framers' projects much better after trying to reconstruct the general political language-the categories of thought and the basic assumptions
about reality-in which the Constitution was written. Compar~ C. BEARD, AN EcoNOMIC
INTERPRETATION OF THE CONSTITUTION (1913) with G. WOOD, THE CREATION OF THE
AMERICAN REPUBLIC, 1776-1787 (1969).
In .some of the ve~ best ~ecent work in legal history, even writers thoroughly committed
to placmg legal .forms m soctal and economic context have stressed how important it is to
understand the. mt~rnal structur~ and logics of such forms on their own terms. Su, ~.g.,
McCurdy,Justru Fuld and In~ Junsprud~nc~ of Covemmeni-Businus R~lalions: Som~ Paramdns of
Laism:-Fair~ Constriulionalism, 1863-1897, 61 J. AM. HIST. 970 (1975); Scheiber, The Road to
Munn Eminent Domain and Public Purpose in In~ Stale Courts, in 5 PER.SPECTIVES IN AMERICAN
HISTORY 329 (D. Fleming & B. Bailyn eds. 1971).
78. The "disengaged" have this much in common with the old Formalist doctrinal his~orians; bu~ they've lost the Formalists' confidence that it's the very aloofness of law that gives
1~ central tmportance ~ the functional mainstay of the unfolding norms of property and
hberty. Our modern dtsengaged are a chastened bunch. Alan Watson actually subscribes to
the dominant vision's basic functionalism but believes that the legal system's imperviousness
to any but professionally ingrown practices makes it perpetually dysfunctional. See A. WATSON, SociETY AND LEGAL CHANGE (1977); see also Abel, Book Review, 80 MICH. L. REV. 785
January 1984]
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89
There are grave problems with this approach. For one thing, as
legal sociologists like Friedman and Macaulay point out, these w:iters, writing about the insular lawyer's law of cases, seem to be tal~mg
about awfully tiny corners of the law in any age (compared to legtslation administration decrees, local law and custom, etc.) and espe79
ciall~ in the curren; age of statutes and regulati~ns. If this is t~e
only "law" that legal intelle.ctuals are going to wnte abou.t, they will
weirdly and incomprehensibly restrict their field to topics that,. at
least by their own hypothesis, aren't very important to anyo_ne,. mcluding lawyers themselves, who actually spend most of their time
dealing with statutes and regulations.
More seriously, I believe that disengagement is a? obscur~~tist
approach to the autonomy problem. First, autonomy m my ongi.nal
sense of long-run structural characteristics that '?ake legal p:actices
outlast short-term swings in political pressure IS hardly umque to
lawyer's law. Entire subdisciplines are committed to studying the
(1982) (dissecting not only Watson's thesis but legal functio~alism generally) .. Charles Fried
has lost some of his old conviction that legal rules were denvable from ~nttan n?.rm~ a~d
now seems inclined to think that law doesn't resonate with anything but tts 'Own artt~ctal
reason " and that law's social role is modestly confined to filling in the residual detatls of
regula~ory schemes in the course of settling marginal disputes. See Fried, Th~ Artijicial R~ason
of th~ Law.' or What Lawyers Know, 60 TEX. L. REV. 35 (1981). And Richard Epstein has
recently written a very good (except for its failure to acknowledge any o~ the work of the la~
and-society movement, which has been making similar points for yea_rs m the Law ~ Socuty
R~view) piece on how common law rules don't seem to have any 11~1po~ant ~tal conseqw,:nces and are therefore best understood as bel?nging t~ the transh~stoncal dtscourse of a
peculiar fellowship of specialists, those charged wtth resolvmg those mmor problems that occasionally get tossed to the couns. See Epstein, Th~ Social Cf!nsequences of Common Law Rules, 95
HARV. L. REV. 1717 (1982).
I can't help believing-though of course I can't even begin to prove it--that ~he strategy
of disengagement is partly a reaction to leftwing work (especially Morton Horwttz's, s~e M.
HoRWITZ, supra note 56, and to a Jesser extent Douglas Hay's, su Hay, Propnty, Authonty and
th~ Crimina/ Law, in ALBION'S fATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH ~ENTURY
ENGLAND 17 (D.Hay, P. Rule, P. Linebaugh & E. Thompson eds. 1975)) that dept~ts l.aw.as
an instrument of ruling-class authority; it's the reaction of mainstream scholars saymg mdt~
nantly, "Well if that's the social meaning you're going to give to law, w~'re going to sho": tt
doesn't have any at all." Years earlier, Roscoe Pound had t~e same r~actt~n: confronted wtth
theories that tort law served the capitalist class, the one-ttme functtonaltst retreated to the
stance that tort Jaw was a lawyer's creation irrelevant to anyon~'s needs. s~~ Pound, Th~ Economic Interpretation and the Law of Torts, 53 HARV. L. REV. 365 (1940). An?ther w.ay of attacking the thesis that law serves the interest of ruling classes is, instead of dtsengagt~g law from
outside influence altogether, madly to proliferate outside influences, so that eve~ mterest gets
a crack at shaping the legal system. The "ruling-class-influence" is then burted under an
avalanche of other variables.
79. Se~, e.g., Friedman & Macaulay, Contract Law and Contract T~aching: PC:SI, Present, and
Future 1967 WIS. L. REV. 805. Friedman and Macaulay do agree wtth the dtsengaged that
some law is autonomous lawyer's law and, to that extent; it is socially trivial, being the "law
of leftovers" that nobody cares enough about to regulate in some other way.
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autonomous characteristics of state structures such as bureaucracies

and armies to show how constraints of organizational forms, ingrown
traditions, professional ideologies, etc. affect how political agendas
are formed, options perceived, urged, or suppressed, and so forth. 80
Just as Realism taught us that judging, like legislation and administration, was political policymaking, it ought to have taught us that
legislation and administration were, like judging, relatively autonomous.81 Thus, focusing on the autonomy of law to deny its relevance
seems somehow unsupportable.
Second, I find it very hard to believe that autonomous legal forms
are best understood as the product of a culturally isolated tribe of
beings. Would any society tolerate lawyers as mediators of disputes,
practical problem-solvers, or instruments of legitimate rule if the lawyers' practices didn't resonate at all with anyone else's? It seems
much more probable that the specific legal practices of a culture are
simply dialects of a parent social speech and that studying the speech
helps you understand the dialect and vice-versa. Even a legal system
clotted with arcane technicalities is unlikely to depart drastically
from the common stock 'of understanding in the surrounding culture
in the methods it uses to categorize social realities, the arguments
about facts and values that it recognizes as relevant and persuasive,
and the justifications it gives for its exercises of power.
80. &.,., "-, T. SKOCPOL, STATES AND SOCIAL REVOLUTIONS {1979). I mean to say
much more here than that bureaucrats and legislators have their own "interests" that sometimes cut across, warp, or neutralize, the pressures of "outside" interest groups. I mean that,
like courts, bureaucracies and legislatures develop commitments to "doctrines" and "principles"-that is, to relatively abstract clusters of concepts that constrain their imaginations and
actions. I really think it's pure lawyers' conceit to suppose that courts arefondammtal(y different in this respect from other legal institutions. True, our upper courts by tradition are supposed to be more self-conscious and to publish at least the formal reasons for their dctisions.
Yet if "autonomy" means, among other things, demonstrated capacity to stick to internal
priorities and settled ways of thought in the face of intense short-term political pres5urc, isn't
it likely that, say, the doctrines of the Pentagon's procurement and strategic planning establishments are at least as "autonomous" as those of most appellate courts? Maybe even more
so, because these establishments have more effective ways of suppressing dissenting opinions
for many useful examples of "autonomous" bureaucratic practices, see Tut: POLITICS OF
REGULATION U. Wilson ed. 1980).
81. In fact, the Realists never got that far because most of them turned out to be stuck
as fast to the case-law tarbaby as their Formalist predecessors. It may not be an exaggeration
to say that the relative inattention (despite honorable exceptions and what looks like a growing interest in such subjects) to the "deep structures" cutting across diverse substantive fields
of legislation and administration is the major disgrace of modern legal scholarship. But I
would want to see such studies carried out not on the ground sometimes urged by my law-andsociety friends, that because appellate cases are freaky and exceptional legal scholars should
write about more typical legal products, but on the ground that such other products are in
essential respects no different from appellate cases.
January 1984]
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127
91
The position of the disengaged seems to ~e to rest on tw~ confusions. One is the confusion of a possibly vahd methodological precept with a wholly invalid social theory. The precept is that when you
want to account for a legal form, you should start your search for
explanations in legal materials. This precept makes sense because
the form is bound to be embedded in a whole contextua'l' structur~.
For example, if you want to know what Cicero meant by the pubhc
good" it's a good idea to look for other uses he mak~ of the phras?,
what he contrasts it with, and how other lawyers use It. The theory IS
that discourse that is autonomous in this sense must therefore be peripheral or irrelevant to everything else going on in the society. But
this theory doesn't follow from the precept at all. It's like sayi_ng that
because Cicero has a specialized usage of "the public good" his ~s~ge
must not have anything to do with contemporary Roman poht1cal
controversies.82
The other confusion is between law as particular enactments or
events and law as clusters of practices and packages of enactments,
processes repeated not once but many times over. Law in the .s:nse of
isolated enactments, decisions 'in a single case, or one propositiOn ?n
page 351 of a hornbook, is rarely of any. immediate instrumental significance.83 Epstein is surely right to claim that a few contract or tort
rules more or less in the nineteenth century wouldn't have mattered
82. Sometimes one even hears legal historians argue for ~ method on the ~as~s ~f the
precept alone, claiming that since lots of law has a high techmcal content, the d1sc1phne of
legal hiStory should be confined to explicating the content that lawyers best understand. But
"stuff outsiders can't understand" cannot be seriously proposed as a useful_ category for _the
study of social life especially since laymen do come regularly into contact wnh these partiCUlar bundles of eso;erica. At best, this very narrow view might be appropriate for people -;ho
saw their competence as purely auxiliary, similar to numismatics,
.
ep1grap
h y, o r "quanuta
tive and statistical methods." As legal specialists, they would stand ready to a~t as tCC:hmca
advisors 10 real historians. But the most insular of legal historians, far ~rom b~mg an~1ous to
attach their specialties to general historiography, don't pay any attention _to 1t at all.'
83. This statement itself is confused. There really isn't any. such t~mg as an 1sol~:d
enactment. Every case or statute is just one event in a complex serses l~d1~g up to a~d a Y
from that event as well as a piece of the giant puzzle-structures of soc1al mterpr~tatlon that
categorize the event and give it a meaning in relation to other "like" and "unhke" eve~ts.
Hence, it's not a little misl~ding to speak of the "effect of a legal rule" as if th_e rule we~e JUS!
a single blip on the legal grid; the rule-event wouldn't have happened at all 1f ~~}e ~ th~
social sphere hadn't been preparing for it in some.way. ~uch ~egal enactm~nt just ratifies.
conventions that have already crystallized in socaal relationships. By the t1me ~he rule ap
pears, the social struggle to produce it is already over, so the enactm_ent docsn t appear
have any "effect." For an example in the context of family law, see Fnedman, Law f!ifonn n
Histo11 f:a/ PnsJNcli, 13 ST. LoUIS U.L.J. 351, 362-64 (1969) (passage of the Mamed Women's Property Acts).
:?
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much to anyone. 84 But the whole complex of contract, tort, and

property rules? The whole apparatus of debt collection? Slave codes
and fugitive slave laws? One might suppose, without falling back
into the functionalist position that all this law had to exist in order to
serve the needs of basic economic or evolutionary processes, that it
was pretty important in constituting social life as actually experienced, and that removing any of these big pieces might well have
drastically altered that experience. 85
The disengaged have added persuasively to the critiques of functionalism, at least in the area of lawyer's law. But those of us whom
they have failed to convince of law's total irrelevance to social life
have to look elsewhere for our theory. One obvious place to look for
84. &e Epstein, supra note 78. Individual statutes also may not have mattered, though
Epstein, curiously, distinguishes these. &e id. at 1718-20.
85. lj:ven m9re methodologically questionable than the fragmentation of legal causes
and effects into isolated even{s-hardly of course a problem confined to the disengaged
alone--is the positivist attitude that encourages such fragmentation: the assumption that the
only kinds of statements about reality that are worth coming up with are empirically falsifiable statements about the probabilities under varying specified conditions that certain "legal
behaviors" Will elicit "social behaviors" (or vice-versa) in response. Sometimes this attitude
deepens into the absurd claim that whatever you can't make such a statement about must not
be there at all! This attitude is not confined to the disengaged; indeed, it has recently been
voiced within CLS itself, in an exceptionally interesting piece by Alan Hyde that questio~s
the utility of the concept of "legitimation" in legal sociology, essentially on the ground that
the theory that people obey laws because they think them legitimate lacks convincing empirical support. &e Hyde, The Concept of Legitimation in the Sociolop of Law, 1983 Wis. L. REV.
379.
This isn't the place to attempt a comprehensive critique of Hyde's careful and detailed
argument. But I would like to relate the following story, adapted from John Womack's great
history of the Mexican Revolution: The Revolution started because sugar planters began to
expand their landholdings in order to rationalize the practice of commercial agriculture.
They used force to expel peasants from their lands, but took care to back up every expulsion
with land registration legislation, recording acts, and condemnation proceedings, all ratified
by local courts. The villagers, for their part, saw themselves as defending legal title to their
lands. The chief of the Morelos pueblo passed on to his successor, Emiliano Zapata, the
pueblo's most precious possession, a packet of title documents. Zapata and his followers
joined the revolution because they could not get ~ustice" (true law) through existing forms of
law. They fought to establish national and local governments that would do justice.
Throughout the struggle the villagers would surrender positions held by force in return for
legal guarantees (which if given were always betrayed). See J. WOMACK, ZAPATA AND TilE
MEXICAN REVOLUTION 44, 52-66, 371-82 (1968).
The planters and their political allies would not move except under the forms of law-to
reassure foreign countries, the potentially hostile middle class, and (as much as anyone else)
themselves that the rights of property were on their side. The pueblo rose in revolt because
their rights of property had been violated. I really don't know whether the concept of "legitimation,'' admittedly vague, overused, stretched to fit far too many different purposes, is the
best concept to use in explaining why legal forms mattered so much to these people, but I
can't help thinking that some kindred notion must be.
January 1984)
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Studies
93
a theory of the social relevance of law is at theories of the law as

legitimating ideology.
2. Law as (legitimatz"ng) ideolog.

Like the theory that law serves the interest of domi~ant gr~ups,
this one has come to be associated with the le~ . but ~gam th;re s no
necessary connection. Mainstream liberal funct10nahsm has Its own,
Durkheimian version of the legitimating role ~flaw: r;:gal norms ar~
primary ~xpressions of and means of rep.roducmg .th~ sh~red .~alues
that function as the integrating glue in hberal societi<;s, onentmg e~e
ryone's highly differentiated tasks to~ards a set ?f comm?n social
a6 But concededly it has been the left-wmg theones, theopurposes .
.
db h "
ries that have emerged to deal with the diffic~lties. pos~. Y t e autonomy" problem for any account of law as the dire~t mstrument of
class oppression, that have attracted the most attentio~. Let me, for
convenience's sake, try to arrange some of these theones on ~ sp~c
trum, starting with those closest to straight inst.rumental t~e~nes,
and ending with those emphasizing the most diffu~e and md1rect
ways in which faw makes up the elements of a culture:
.
(1) "All law is pig law dressed up in judges' robes.". That IS, !aw
is a means for organizing the ruling class and for ~oercmg, .cheatmg,
and disorganizing the working class. Thus? Ia~ all~ws captt:':l fr~ely
to collectivize but sets limits on labor combmat10ns; It allows ca~Ital
tr.Ikes" (disinvestment) but restricts labor strikes; it confirms capitals
.
. . .
ist control over the organization of work; It
cnmma
Izes " :agra~cy"
as a means of keeping docile the urban unemployed; and It provides
that employment is "at will" so that the unorganized work force has
no job security.
..
. .
(2) "The ruling class induces consent a~d demob1hzes o~positiOn
by masking its rule in widely shared utopian norms and fa1r procedures which it then distorts to its own purposes." For example, the
, bourgeois legal norms o~ "private p~operty, " "fi:ee con t raet "
classical
"free speech," and "due process" express umversallongmgs for security privacy autonomy, free choice about what to buy and sell an?
whom to w~rk for, the right to speak one's mind f~eely, an~ the umversal desire for protection against arbitrary coerciOn. But m a class
society these supposedly universal norms are deployed for the bentfit
of a particular class. Private property, free c~ntra~~ (complex and
expensive) due process, (well-heeled-and-organized-mterest-group-re86. See, e.g., T. PARSONS, THE STRUCTURE OF SociAL ACTION (2d ed. 1949).
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sponsive) democratic procedures, and even (expensive-and-technology-dependent) free speech operate de facto to reinforce the
advantages of wealth and power. The victims of these outcomes feel
powerless to complain because the outcomes seem to have been produced by legitimate rules and procedures.
(3) "The ruling class confirms its rule by actually making good
on enough of its utopian promises to convince potential opposition
that the system is tolerably fair and capable of improvement, even
with all its faults." Tqis proposition is essentially Machiavellian.
The ruli~g class periodically sets up demonstrations to convince people that 1t really does rule in the univerSal interest. 87
(4) "The ruling class its~lf is taken in by legal ideology; it believes
that it's acting justly when it acts according to law, that everyone is
getting approximately the best possible deal, and that change would
make everyone worse off." This formulation is getting closer to the
meaning of ideology in classical social theory: a partial vision of the
world that appears to its proponents as well as to its victims as a
universal vision. (In fact, in the case of the ideology or' the "rule of
law," middle-class people are rather more sold on it than working or
lower-class people.)
(5) "Law isn't just an instrument of class domination, it's an
arena of ~lass struggle." The content of legal rules and practices is
ideologically tilted in favor of class rule (or, more generally, the reproduction of current modes of hierarchical domination, class-based
87. Some scholars who equate all left-wing legal thought and even "Marxism" with this
~uling-class-conspiracy notion complain about how unfair it is: The ruling class is damned if
screws the underclass and damned again if it treats it justly; what evidence wo'uld show that
the ruling class wasn't oppressive? &e, e.g., Langbein, Albion's Fatal Flaws PAST & PRF..SENT
Fe~. 1983, at 96, 114-15. I would respond to this criticism in several wa~s: First, historicai
rulmg cla:'ses have often behaved exactly as Machiavelli said they should. That is, they have
self:onsciously reformed legal practices, making them more impartial and equitable, for the
precise purpos.e of staving off popular risings or of stealing the wind from political opponents.
The strategy ~s surely ~art .of the ~rudential repertoire of any ruler, although it may not
~lways .fig~re ~n the motivation~ behmd the setting up of any particular regime of apparently
Impartial JUstice. Much more Important, the complaint simply misses the paint of the radi~l's analysi~ of legal p~actic~, which is usually meant not to criticize the rulers for ruling
mce~y or to Impugn t~eir motives, ~ut to help explain how a ruling class (especially a small
one m a large population, or one without a large standing army or police force) maintains its
rule? "By force an~ f~aud," is alwa~s a part of the radical's answer, but especially in advanced Western societies where the direct threat of force is uncommon, the usual answer is
:'by consent (however grudgingly it may sometimes be given)." How does the ruling clas~
mduce consent? B.y persuading people that they are getting, if not a good deal, at least the
best one they a~e hkely to get, or per~aps the best one they are likely to get n;latively easily
(because anythmg better would require much struggle, disruption and above all the risk of
catastrophic failure).
'
It
January 1984]
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Studies
95
or otherwise), but ruling classeS' don't have everything _their own way
when it comes to specifying that content. The concessiOns that cause
legal systems to respond to the interests and ideal aspirations of the
dominated result from bargains struck after hard struggle. The
norms embodied in legal rules therefore are always double-edged:
The underdogs who have won them can also be coopted by them; the
overdogs who concede them in order to coopt are always vulnerable
88
to being undermined by their radical potential.
(6) "The discourse of law-its catego~ies, argum~nts, reasonmg

modes, rhetorical tropes, and procedural ntuals-fits mto a comp~ex
of discursive practices that together structure how people perce1ve
and that therefore act to reproduce or to try to change people's social
reality." Because this assertion goes well b~~ond ,partial critique, and
is one of the core views of many of the Cnttcs, I ll postpone elaboration of it until the next section.
3.
Law as Symbols and Rituals.
This is a catch-all tteading for those writers who see much of what
goes on in the legal system as theatrical or. religious. pu~lic sp_ectacles
and story-telling sessions that infuse ordmary soctal hfe w1th dramatic meanings and messages: the triumph of Virtue over Corruption the marking off of a "sacred" sphere ,of ideals from the
"pr~fane" world of fallen self-inte:est, the purification of: society of
polluting deviance, the proclamations that most economic transactions are fair and decent implicit in the stigmatizing of a few deals as
exceptionally rotten, the instruction that life is a game to be pl~ye?
according to rules, and the trappings that tell you that authonty IS
authority.
I'm not sure why cultural anthropology of this kind, ':"hich seyms
to me to be potentiftlly one of the most exciting and frllltful sources
of new insights about law, is so undeveloped in our scholarship, espek89
.
h .
l
cially since of what little there ts, so muc IS marve ous wor .
88. An important strand of Critical historical writing descends from this set of insights.
E . FOX -GENOVESE & E. GENOVESE , FRUITS OF MERCHANT CAPITAL 337-87 (1983);
s:
E.P. THOMPSON, WHIGS AND HUNTERS 258-69 (1975).
89. See, e.g., T. ARNOLD, THE FOLKLORE OF CAPITALISM 185-88 (1935)(corporate reorganization rituals); M. FoUCAULT, DISCIPLIN,E AND PUNISH (1977) (dra~aturgy of exe.cu"tions); L. FRIEDMAN, THE ROOTS OF jUSTICE: CRIME AND PUNISHMEN"I_" IN ALAMEDA
CouNTY, CALIFORNIA, 1870-1910, at 150-95 (1981) (felony processes m~kmg hapless ~a
grants into cardboard villains); E. K.ANTOROWICZ, THE KING'~ T_wo Bo?IES (1957) (medieval kingship); Hay, supra note 78, at 17-18 (terror-theatre of cnmmal assizes); Leff, Low and,
87 YALE L.J. 989 (1978) (litigation rituals) .
(~)~.g.,
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Doubtless part of the reason is our scholarship's occasionally constricted positivist criteria for its rare excursions into social description, which sometimes suppose that whatever "effects" of law you
can't measure precisely must not be there at alJ; the rest is perhaps
simply that this sort of work is very hard to do.
F.
Van"ation # 6-Drawing upon Diiferent Story-Lines
I have argued that the dominant vision of the meaning of modern

history is an optimistic liberal vision. 90 Its principal story-line is one
of the gradual recession of error before the advance of commerce,
liberty, and science-an advance modestly but invaluably assisted by
ever more efficiently adaptive technologies of law. There have been
failures and setbacks, and work remains to be done; but we have triumphed over the major obstacles, and the remaining work is remedial reform of the details. To be sure, opposing schools within
optimistic liberalism have developed somewhat conflicting stories:
One sees the late nineteenth-century common law as the summit of
legal enlightenment and the regulatory welfare state as a (presumably temporary) slide into Serfdom and Inefficiency; the other sees the
late nineteenth-century as a colossally misguided aberration and the
regulatory welfare state not only as a useful corrective but as a continuation of the true American tradition of positive state interventions in
the interest of the commonwealth.
Such sharply conflicting views even within mainstream functionalism had already shattered the tranquil complacency possible only
to those in possession of uncontested mythic-historical ground, but
this discord was nothing compared to the cries of distress that followed the appearance of Morton Horwitz's The Transformation if American Law. 91 As an event in the history of American legal/intellectual
culture, this book is most interesting for its substitution of some of the
major pessimistzi: story-lines available in our culture for the optimistic
ones of the dominant vision: 92 first, the story of the dark si9e of capi90. The vision, as it has approached our own time, has modulated its optimism into a
kind of grimly resigned complacency, which finds its tragic consciousness of flawed and futile
human capacities an inexhaustible stock of reasons why it would be futile to try to imagine
any better forms of social life than those that we happen to be accustomed to.
91. M. HoRwiTz, supra note 56. For reviews explicitly Critical of the book for its pessimism {though coming to diverse overall judgments), see McClain, uga/ Chang~ and Class /nter~sts: A Reui~w Essqy on Morton Horwitz's The Transformation of American Law, 68 CALn. L.
REV. 382 (1980); Gilmore, Book Review, 86 YALE L.J. 788 (1977); Reid, Book Review, 55
TEX. L. REv. 1307 (1977); Teachout, Book Review, 53 N.Y.U. L. REV. 241 (1978).
92. To my mind, however, the permanent importance of this book to scholarship lies in
its subtlety and richness as a history of legal id~ology- an aspect of Horwitz's argument that
January 1984]
133
Studies
97
.
he destruction of communal bonds and meantahst development-t
.
f milies the abolition of
0
ingful faiths, the wrenchl~~ a~art
w~rk the displacement of
cr~ft~1 t~:a~~n~~~~z:~o~h~:
?i~~est
honorabie
of self-seeking as the
norms o eqU1ta e
f th declension from the Founders VlSJon
good;93 se~on~, the st~ry o rt' ? ation of independent citizens in civic
of Repubhcamsm as t epa lCJ to a business society of profit-maxiassociatio~ fo: t~e. pu?l.lc g~94 third the Populist story of the bemizing pnvatlStlC mdJVldUa s,
.
f' d
by plutocrats who
R
promise o emocracy
1
1Convention managed to wrest the
trayal of the evo utlOn~ .
have, since the first Consutuuona
from ~he People and press it
achinery of law and government away
95
m
. t the service of the wea1t h y and powerful .
.
mo
.
1 f the horror in the Critical reaction to
I ~ttnbute a goo~ dea o b rd label of "Marxism," to his violatHorwJtz, not to menuo:. t.he ~ s~nons of story-telling all at once. Afing so many of the t~~ Jtlo~ad cbeen expressed previously by other
ter all, these story ~es
" . 1 r y" to be instrumental to
writers.96 It was all nght for socla po JC were benign (industrialieco~omic purp~ses so lo~g ~et~:d~:f~~~elopment) and so long as
zatwn, economiC gr~wt '
1 . 1 t es Horwitz however, made
one was mostly talkmg about egJs a ur .
'
ve7
real vulnerabilities as social and

the many hostile reviewers who have pomted out Its!
economic history have chosen to ignore alm~st ;o:pdet:~t story-line see Hirschman, Rival
93 For an excellent survey and analysis o. t IS
20 J ~N LIT. 1463 (1982).
'l" /JestnJ&tzue or re~u.e.,
Jnterpr~tatzons of Market Socuty: 101 zzz~g,

f h'"
bl'can"
themes of the establishment
1
94. For a discussion of ~he ~rslsten~ 0 .t e re~u Ross Th~ Liberal Tradzizon Reuisit~d
of civic virtue and its ~rruptlon m ~m~can~lfe~~~~;N A~ERICAN INTELLECTUAL HISand tlz~ Repu61ican Tradztzon Address~d, m EW IR
Hi ham & p Conkin eds. 1979).
TORY I 16 (J
g
.
.
. . d'.
C BEARD, supra note 77.
.
ch so that I'm
95 The cornerstone work m this tra IUOn IS
earn
Atlantic cu1ture-ro mu
0 mamstr
lied "Marxist." For God's
96 All of these are .staple crops
H
book so constant1y ca
staggered by hearing their use m orwltz
at'lve lawyers talking about how the
.
r t n to the most~ conserv
.
h
.
ethic) and devouon to t e
. m (cra~t
sake at any bar dmner you can IS e
1'
1
of proess1ona 1s
d
,
. )
fellowship of the bar (commumty sense
h
.
flaw has become a busmess eld
.
. ) h
d r ed as t e practice 0
h d sounded these themes as well. Hurst to
public good (repubhcamsm ave ec ~n .
voted to making money. Other legal hlstonan~ a
d'
values as well as the Wisconsin
1
how the capitalist ethic had destroyed pu~hc-~ga~ :T LAw AND EcoNOMIC GRowrH
timberland in the mid-nineteenth centur;k. u f the ~ea ~flaw as expressive of communal
. I' .
t'lon Su W NELSON, AMERI( 1964) Nelson and Reid lamented the sm mg o
.
. . . d" 'd r
r a commerc1a
1zmg na
morality in the atomistic m lVI ua Ism o

I
DEFIANT STANCE (1977); su also
CANIZATION OF THE CoMMON LA~ (1975)~ REI~, ;~tal)' on Changing Pictum of AmeriHartog, /Jistancing Orus~lf.from liz~ .Ezglztuntlz R tui)'~UTION AND THE REVOLUTION IN LAW 229
can ugal Histol)l, in LAw IN THE AMERICAN EVO
rate ente rise had manipulated law
(H . Hartog ed. 1981). Scheiber sh~wed hohwdearly codsrpo co Sche~er Property Law, Expropria
1
ht
as
It
marc
e
onwar
.,...
f
.
to expropriate tra d tttona ng s
H T
( 19 73). But somehow none o
and Ruouru Allocation by Gouemment, 33 J. EcoN. IS .232d'd
tzon,
d
h'
l'ke the hostility that HorwitZ I .
them ever provoke anyt mg 1
c:
! ... '
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98
STANFORD LAW REVIEW
[Vol. 36:57
over the purposes into capital accumulation throu h ex

. .
and p t
f
g
propnat10n
r ro ect10n o. profits from redistribution. He also implicated
1
:~~ha;;;ers
and judges, and with them the common law tradition of
. ey were the curators, as among the ringleaders of this dubi~us busm~s. I~ was even all right (in the Realist tradition) to charge
ammon aw Judges with class-biased rulernaking so Ion as
safely limited the indictment to the ephemeral craziness of l~t ~ne
teenth-~entury Formalism. Horwitz carried the char e back et mneearly nmeteenth century, the period that common law gers had o
ously c~lebrated as their heroically "formative" e YI d ' pdreviand
th
h'
ra.
on t eny
nei er at t IS date would Horwitz himself that th
'
pr?;lems width his
and that some of the
evi
ence
an
conclusions
are sound. But it's hard to account fior t h e
volu
d
t~e
the~is,
I
.I
specifi~ criticisr::~f~~
why ~ea~~~t;~~~ido~ the advehrsedreactions without understanding

ave touc e so manynerves.
dev~~~ ;~as~~- all this matters i~ that_ the_ new availability of major
ry mes about the mam action m modern social/le al his
:ory has t~e effect of re/ativ~:Zing the old story-lines, of making the s~:e :~o~ke uncontro~erst~l
th~y ar~
assumptions but like what

.
. l g_ many possible Interpretive frameworks in which to st' k
JC
h Jstonca evtdence.
G.
Variatiof! # 7-Historicz:Ze Consciousness
The final twist on the dominant traoition that I'd like t

.
o mention
h ere one that ends u
1
simp,ly the "K h .
ay~Cg a ~entral role in Critical thought, is
.
u man
or
ollmgwoodian"98 1'd
h
h
h h
ea t at t e most
bas1c wa
verses in >;~~hwt~~ teoplhe conceive of the natural and social uni1
y Jve, t e most elementary cate.,.o . th
are
and
tion~lism as' we'~ea:~e:;e~~-c ~~liven places and times. Pure func-
f,S
~~~t~o t~~a~izt~;veryday li_~,
~ulturally
hist:~~all~t :o:~fn~
~~=~~~:~n~~~:~ ;~~=~:::;;;.~!:~~~~~~;
w at t~s n~e~s are and whether its social forms efficient! n a society,
The histoncist perspective on the oth h d
y meet them.
conceptual language in which the fi e: a~. ' teaches that even the
u~iversal needs and adaptat"
~ncu~na 1St advances her claim of
guage with a history- t Ions lis a tlme-.and-~ulture-bound Ianno a gent e progressive history in which su97. See
THE STRUCTUR E OF SCIENTU'IC REVOLUTIONS (2d ed 1970)
98.
Se T.
R KUHN,
Co
e .
LLINGWOOD, THE IDEA OF HISTORY (1946).
.
.
January 1984]
135
Studies
99
perstition gradually gives way to science, but a history with

revolutions and disruptions in it.
There are two basic ways of pursuing the historicist approach .
One is simply to write the history of our own modes of thought, to try
to identify when our categories fcir organizing how we speak about
law solidified into something like their present shape. When, for example, did we separate a 'private realm of "market" activity from a
public realm of "state" activity and come to think of the latter as
"intervening" in the former? When does the term "regulation" begin
to be used iq its modern sense? When did tort separate from contract, "corporation" come to mean mostly "private business enterprise," and "efficiency" achieve its presept significance for antitrust
1awyers? When did lawyers start speaking of the the need to "bal99
ance" a multiplicity of "interests" in order to aecide hard cases?
The other technique is the reconstruction of historical or crosscultural modes of thought in such detail as to illustrate (a) that other
societies have not shared the ways of thinking that we believe to be
essential and obvious (they just don't have a counterpart conception
to our idea of a "market" or of a "free individual," they don't think a
"corporation" is legally any djfferent from a family or a city, and
either they don't distinguish between a "public" and a "private"
realm or they mean something completely different by the distinction), and (b) that these views were completely plausible for the people who h,eld them. 100 Such work can have a real political edge to it,
a!} when the historian takes a set of ruling ideological cQnceptions
that his own time condemns as cruel or mistaken-legal rationalizations of slavery, for instance, or the due process Formalism of the
Lochner era-enters into their world with (provisional) sympathy,
and then shows how much sense those conceptions l;Ilake on their
99. Perhaps the closest analogues to the histories of legal consciousness now being written. by many of the Critical legal historians are the histories of economic thought which study
the histqrical emergence of its fundamentals, such as the grounding of social action in i'ndividual subjects rationally pursuing self-interest through exchange. Su, e.g., J. API't.t:BY, EcoNOMIC THOUGHT AND IDEOLOGY IN SEVENTEENT)i CENTURY ENGLAND (1978); L.
DUMONT, FROM MANDEVILLE TO MARX (1977); A. HIRSCHMAN, supra note 12; K. PoLANYI,
Tilt: GREAT TRANSFORMATION (1944).
100. Some of the very best legal/historical writing does exactly this: Maitland's or McIlwain's reconstruction of medieval world-views; Hurst's description of nineteenth-century
American "bastard pragmatism"; Gordon Wood's recreation of the conceptual world of the
Constitution-writers. W. HURST, supra note 96, at 206; C. MciLWAIN, TilE HIGH CouRT Ot'
PARLIAMENT AND ITS SUPREMACY (1910); F. POLLOGK & F. MAITLAND, supra note 64; G.
WooD, supra note 77.
Critical
136
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100
[Vol. 36:57
own terms. 101 The ways in which well-meaning gentlemen justified

their social orde.r-the social order that had so well situated themas just and efficient may look uncomfortably familiar. But the leading edge of historicism cuts deeper still: it tells us that the difficulties
we have in imagining forms of social life different from and better
than those we are accustomed to may be due to the limits on our
conceptions of reality rather than to limits inherent in reality itself.
After all, perfectly smart and forward-looking Americans of about a
century ago habitually believed such things as that social order and
economic prosperity depended absolutely on the maintenance of permanent class divisions or slavery; that it was absurd utopianism to
suppose that blacks and whites could ever associate on terms of social
intimacy or equality (or if they did, the results would be biological
degradation of the species); that the physical constitution of women
unfitted them for attendance at colleges, that unemployment insurance would take all the discipline and will to work out of the labor
force; and that judicial failure to enforce harsh bargains to their rigorously formal letter would bring on the imminent collapse of
capitalism.
Such historicism is not, in its weaker versions, actually incompatible with functionalism. One could continue to suppose that universal processes generate needs for ideally adaptive responses while
conceding that both needs and responses will be perceived at different times and places through different-colored, and more-or-less distorting, conceptual lenses and filters. The strong position, on the
whole that adopted by Critical writers, is that both needs and responses, and indeed the idea of needs-and-responses itself, must be
seen as the cultural products of contingent modes of thought .
.i
I
. I
IV.
GENERALIZING AND DEEPENING THE CRITIQUES: CRITICAL

LEGAL HISTORIES
Having at last completed the catalogue of variations, let me restate in summary form those that have done the most to inform the
varieties of Critical historiography:
1. The conditions of social life and the course of historical development are radically underdetermined, or at least not determined by
any uniform evolutionary path.
101. Su, t.g., E.
114-244 (1969);
LAw Ot' SLAVERY, 1810-1860 (1981); Kennedy, Toward an
1/islonca/ Un_derslanding of .Ugal CoMciousnus: Tht: Cast of Clamcal .Ugal Thought in Ammca,
1850-1910, m 3 RESEARCH L. & Soc. 3 (1980).
GENOVESE, THE WORLD THE SLAVEHOLDERS MADE
M. TUSHNET, THE AMERICAN
January 1984]
137
Studies
101
2. The causal relations between changes in legal and soc~al

forms are likewise radically underdetermine~: Compar.ab.le soc1al
conditions (both within the same and across d1fferent soctettes) have
generated contrary legal responses, and comparable legal forms have
produced contrary social effects.
3. If a society's law can't be understood as an objective response
to objective historical processes, neither can it be un~erstood ~ a
neutral technology adapted to the needs of that part1c~lar soc1ety.
Legal forms and practices are political products that an~e from the
struggles of conflicting social groups that possess very dtsparate resources of wealth, power, status, knowledge, access to armed force,
and organizational capability.
4. Although they are the product of ~olitical conflict, legal
forms and practices don't shift with every reahgnme~t ~f the_ balance
of political forces. They tend to become embedded m relatively autonomous" structures that transcend and, to some e~tent, help to
shape the content of the immediate self-interest of soctal groups.'
5. This relative autonomy means that they can't be ~xplamed
completely by reference to external politic~l/soct~l/eco?omtc fa~tors.
To some extent they are independent vanables 1~ soc1al_ ex~enence
and therefore they require study elaborating the1r pecuhar mternal
structures with the aim of finding out how those structures. feed bac~
upon social life. Given what so often appears to be the mdetermlnacy of instrumental effects, a pro~ising a~proach for ~~ch st~,dy
may be to treat legal forms as ideologies and ntual~ whose _effects :effects that include people's ways of sorting out soctal expenence, gtving it meaning grading it as natural, just, and necessary or as contrived, unjust' and subject to alteration-are in the realm of
consciousness.
6 Our accustomed ways of thinking about law and history are
as c~lturally and historically contingent as "society" and :1~w"
themselves. Though we can never completely escape from the_ hmttations of our environment, we can to some extent protect agams~ the
1
risk of simply projecting .our parochial categoric:' onto the past :V th a
self-conscious effort to relativize our own consciOusness, by trymg to
write the story of its formative context and dev~lopment and ~~ trying to reconstruct as faithful~y as possi~le the d1fferent mentahues of
past societies before translatmg them mto our own.
.
7. It will also help us to relativize our underst~ndmg _of the
past's relation to the present if we ~~e that ou: conventt~nal vtews of
that relation are mediated by famthar narrative story-hnes, that are
138
102
.I
I;
II
/II
,I
1/,
:r,,
STANFORD LAW REVIEW
Critical
[Vol. 36:57
so deeply entrenched in our consciousness that we are often unaware

of their rule. ~ver our conception of reality. These story-lines, like
other mentahu~, have a history filled with ideological purposes, and
the~e alway~ exist-and so we _alw~ys may draw upon-competing
stones that t~press the same h1stoncal experience with radically divergent meanmgs.
Taken en bloc_ ~ather than separately, this set of partial critiques
ad?~ up to a positiOn that most people who see themselves as doing
Cnt1cal legal historiography would probably accept. 102 Many,
thouhgh by no means all, 103 would want to push the critique stili
fiurt er.
A. Blumizg the ~ZawjSocz~ty" lJistzizction
You might think that after the ravages of partial critique there
would not be much left of the dominant tradition. But there is Its
skeletal frame, its division of the world into social and legal sph~r
tend~ to endure. Thus, even the more severe of the partial cnt:
c~ntu~ue ~o assume-although conceding that aU over the landscape
? social l~fe we can see the imprints, some deep and others almost
Imperceptible, of feedback reactions from the "autonomous" out uts
of the legal system-that at bottom the really basic terms of com~u102. I want to be clear that I am t
ki
h
affiliated with the Critical Legal Studt"esnomma ng the absu~ clam that particular people
0
h
ovement ave ongmaud thes
~:~aJ~:~~~f~~:;t:r;:r;;~u~~~ ~~eo~!~a~isto~~l
b~ ;:~~~ui~J:Ie;elto;
standing: to
nsts (e.g. Weber Durkheim G
.
w?r mg assumptiOns of many soctal theoeconomi~ though~ (e.g., Mai;la:~~il~:~~a~t, Giddens, Of!"e); historians of political and
Karl ~olanyi, Hirschman); social historians (:.g. r;~;c~~:::cz,;;cock, Quentin Skinn.er,
::~;I v~~~:!>'p::;;gi:~d(~ng inGte~ertcztuaTl
hpl~ilos~phers :~ie~~e~~-~~~:O~)~:d ~~~
historiaSn;
of
.
. ., ~~ ' urner, a ms) as well
I
I .
specifically among Legal Realists
. 1 .
d h'.
as many ega Intellectuals,

' SOCIO ogJsts an

tstorians (Th.15 .
th'
d"ffi
dosyncrat1c list: others might well put t

IS my own, doubtless
Wh
oge er a 1 erent one)
at some CLS people have done I think is ( )

ing way; (b) to attempt to go somewha; be ond the~ to comb,~e th~e cnuques in an interest~o apply the results to the historiography America~~ s'7~fied_m the n~xt ~ect.ion; and (c)
m these respects their work has been anticipated b
hga r=tnne and msutuuons. (Even
y ot ers: re-read recently a book published nearly 40 years a o that seemed to
calling "Critical" le lgh"
.
h
me_to fit most of the characteristics of what I'm here
ga tstor.ograp y: Lou1s Hartz's .
p. 1.
.
k
Pennsyluama 1176-1860 (1948)) C 1
conomu 11 uy and Dt!111ocratlc Thought:
.
'
nuca wor may thus

h
b
b
.
.
unctive" rather than "original " fi
per aps est e descnbed as "dis' or sure1y 11 was onlr. a m tt
f
b fi
already so well developed in other fields of I
.
.I
a er o lime e ore approaches
because scholars hostile to CLS work so oft earnmg .~ul~ be afplied to law. I mention this
original about that" using (as I see it) th en say, . e ' that~ ~II old hat; there's nothing
.
e accusation of unongmalit
r
engagmg with the substance of the work Le ,
.
.
Y as a reason or not
that it's within a "school" or "t d"t
,;
dt
sl
all
s.mply
supulate
that
it's
not
"original,"
ra 1 Jon, an eave H at that
103. See for example the debates summarized at notes r27-40 l'ifra.
:C
January 1984]
Studies
139
103
nity life are set by conditions and relations we can, and should, describe independently of law: family ties, personal affections, power
struggles, technology, consumption pref~rences, association in interest groups, and the organization of production. These conditions
and relations-the realm of "material life" in some formulations; of
"basic needs" of all societies or of particular evolutionary stages in
evolutionary functionalism; of "the forces of production" in some
Marxisms; of the "interests" of individuals or groups in liberal pluralist theory; and finally of the "preferences" of self-constituting individual subjects in the ultimate reduction of classical and neoclassical
economics-comprise the "real world" which law may serve or disserve or even partially twist out of shape but to which law is ancillary. Thefondamcntal operations of this world originate before law
and go forward independently of it; they fashion in general outline (if
not in tiny detail) the agendas and limits of legal systems and are
beyond the power of law to alter.
Yet, in practice, it is just about impossible to describe any set of
"basic" social practices without describing the legal relations among
the people involved-legal relations that don't simply condition how
the people relate to each other but to an important extent define the
constitutive terms of the relationship, relations such as lord and peasant, master and slave, employer and employee, ratepayer and utility,
and taxpayer and municipality. For instance, among the first words
one might use to identify the various people in an office would likely
be words connoting legal status: "That's the owner over there."
"She's a partner; he's a senior associate; that means an associate with
tenure." "That's a contractor who's come in to do repairs." "That's
a temp they sent over from Manpower." This seems an obvious
point, but if it's correct how can one square it with the standard view
of law as peripheral to "real" social relations? Could one, for example, seriously assert that "the law of slavery has tended to play only a
marginal role in the administration of slave societies"? Slavery is a
legal relationship: It is precisely the slave's bundle of jural rights (or
rather lack of them) and duties vis-a-vis others (he can't leave, he
can't inherit, he has restricted rights of ownership, he can't insist on
his family being together as a unit, etc.) that mak~s him a slave. 104
104. See Finley, Th~ Servile Statuses of Ancient Cruce, in EcoNOMY AND Soclt:TY IN ANCIENT GREECE, 133, 134-35, 148-49 (B. Shaw & R. Saller eds. 1981) (using the "juristic"
method, accompanied by proper cautions about its limits, to analyze the spectrum of servile
statuses in the ancient world). [ see no reason to change this conclusion after reading Orlando
Patterson's important new study anacking strictly "legal" accounts of the master-slave relation. See 0. PATrERSON, SLAVERY AND SociAL DEATH: A CoMPARATIVE STUDY 1-62
140
Critical
104
STANFORD LAW REVIEW
[Vol. 36:57
Change the bundle significantly and you have to call him something
else. And how could one say something like "medieval law bolstered
(or undermined) the _stru~ture of feudal society"? Again, a particular
(~hough concededly m thts case very hazily defined) set of legal relatiOns composes what we tend to call feudal society. If those relations
c~ange_ (~m~~ta~ion of in-kind service to money rents, ousting of
setgnona_l JUnsdtctlOn to punish offenses, etc.) we speak not simply of
changes m "the legal rules regulating feudal institutions " but of the
decline of feudalism itself.
'
I would guess that the notion of the fundamentally constitutive
character of legal relations in social life is probably a lot easier to
understand when made about slave or feudal societies than about
liberal societies. After all, in liberal societies, differences of legal status are not supp?sed to define social relationships, but merely to
channel an? facthtate them. In_ theory, one can, in a liberal society,
c_hoose one s legal status to smt one's underlying, material functiOnal, real purposes: ':ith "fr~e~om of contract," one even ~ets to
create t~at status ~tthm the hmtts set by public law. But a whole
generat10n of Reahsts taught us to see that a regime of free contract
delegates to those w~o contract legal powers, subject to a host of important legal except10ns, to coerce performance according to the contract;~05 and the establishment of private property gives the
pr~pnetor a. set of legal powers, again subject to important legal limitatiOns, to ~tctate to others the terms of access to his property; toG and
t~e ~harten?"~ of a corporation entitles the managerial Few to make
bmdmg declSlons affecting the lives and fortunes of the laboring and
~hareholding M_any. 107 T?e~e bundles of rights and powers, dimintsh?d _by exceptions and hmttations, with which members of liberal
socte~tes ar~ endowed, are Critical determinants of the terms of their
relattons wtth one another. For instance, it usually matters a lot in
an employment relationship whether or not Employee is or is not
(198~)- ~or one ~hing, neither I nor any of the Critics would ever describe a set of social
re1auon_s m e~duswe(l legal terms. For another, Patterson's attack is really only on a particu
larly m1slea~mg legal ac~ount of slavery as "property rights in human beings"; as he truly
~ys, slavery IS only a spec1al c~e, a ~eculiar bundle, of such rights. The real question for him
ts how s~c~ a.~et of l_egal_ relauons IS created, which he argues is by a process of "symbolic
a~propnat1on res~l~mg m the slave's "social death." For the consistency of this approach
wlth that of the Cnucs, see text accompanying notes 115-24 in.fta.
105. &e, e.g., HOHFELD, FUNDAMENTAL LEGAL CoNCEPTIONS (1923).
1?6.. &~, t!-! Cohen, l+op"ty and SoVt!reignty, 13 CORNELL L.Q. 8 (1927); Hale Coercion
and Dzstnou/zon zn a Supposed'! Non-Com:ive State, 38 PoL Set. Q. 470 (1923).
'
107. Jacobson, Tlze l+zva/e Uu of Public Authority, Sovereignty and Associations in the Common
Law, 29 BUFFALO L. REV. 599 (1981).
January 1984]
141
Studies
105
employed at will, a major stockliolder of the ~usine~s, an illegal immigrant, married to Employer, prdtected agamst bemg fired for trying to organize other employees, and so forth. In each case, a
different complex of background legal entitlements facto~ in~o the
power relations between the parties. Of course, nobody ts: gomg to
claim that law explains more than a fraction of the power dtfferences
between these people. The employee may be the only person wh?
understands the filing system, or be irresistibly attractive or physically intimidating or just have been there for ages, or have lots of
alternatives in th~ market (though of course that "market" itself is
importantly structured by the legal regulations of what may be
owned and traded in it, subject to limitations, and by the pr~perty
entitlements of all the traders in it) .108 It is, of course, posstble to
imagine as for example G. A. Cohen has done in his extremely ingenious at~empt to demonstrate that one can describe a "material" core
109
of social relations without any "law" in them at all, a Hobbesian
power balance of force that is destab~lized eve~ ti~e som~b~dy
sharpens a stick or lifts a weight. But m actual htston~al soctetles,
the law governing social relations-even when never mvoked, alluded to or even consciously much thought about-has been such a
key elen:ent in the constitution of productive relations that it is difficult to see the value (aside from vindicating a wholly abstract commitment to "materialist" world views) of trying of describe those
relations apart from law. Power is a function of o~e's abi!ity to form
and coordinate stable alliances with others that wtll surv1ve setbacks
and the temptations of defection to satisfy oppo:tunistic intere~ts.
Such organization and coordination are bou~~ to mvolve someth~ng
legal. Indeed, one is likely to find the condtuons of the ~~bbestan
state of war precisely in those instances where law has exphc1tly or by
108. To give another example, assume two people are havin~ an argument i~ a car.
One says "Get out of my car." The other says, "It's not your car, It's the company scar. I
have as ~uch right to be here as you do." The first: "I'm driving tod_ay, so as far ~s you're
concerned it's my car; and I want you to get out." This is of course ~ fa1rly complex, 1f_uuerly
commonplace legal argument-unusual if at all only in that the_ cla1ms and counterclaims are
very explicit instead of being just silent background assumpuons. Of course, factors other
than legal relations may be involved. One of these guys may be a lot bigger than th_e ot~er ~r
have a long-run stake in the other's amiability or good opinion. But the law of the s1tuatton IS
a potentially critical factor in its resolution.
109. Su G. CoHEN, KARL MARX'S THEORY o~ HISTORY: A DE~ENCE 21_6-48 (~978).
The book as a whole is a brilli11nt attempt to rehabilitate an orthodox-Ma~x1st vers1on of
functionalism in which as in the dominant vision, law is one of the ideolog1cal superstructures called i~to being
the requirements of the material forces of production, which then
reacts upon and mingles with those material forces. For a particularly useful (and to me,
convincing) response to Cohen, see H. COLLINS, MARXISM AND L ..w 81-85 (1982).
by
142
106
I
'I
'd
STANFORD LAW REVIEW
143
[Vol. 36:57
silence established a combat zone in which people are endowed with

(in Hohfeldian terms) privileges to inflict harm upon one another
and are denied any legal means of restricting that harm (as when the
legal regime says a wife can't be raped or that contracts between
husband and wife are not enforceable). Clearly (as Cohen for example points out 110), people can struggle to improve their position vis-avis others by changing the rules that define their entitlements, but that
doesn't alter the fact that the bundle of legal endowments they start
out with positions them for the struggle, and may make all the difference as to whether they win, lose, or get a good compromise deal.
The new deal, when sufficiently stabilized in practice, will simply be
the new legal constitution of their relationship.
More prosaically, the "interests" in the instrumental account that
make demands upon the legal system are not self-constituting prelegal entities. They owe important aspects of their identities, traits, organizational form's, and sometimes their very existence to their legal
constitution. For example, "taxpayers" are partially families, partnerships, or individuals, because of the legal definition of these units;
"New England gas consumers" pressing the Congress for relief from
high prices are partially a "regional interest" because of the legal
form of territorial representation; "Communists" are not an interest
represented as such in labor unions because of legal excommunication; whereas the true identity of the "corporate client" to whom a
corporation's lawyer owes her undivided loyalty is an unsolved mystery, because of conflicts in legal theory. For the most part, the legal
creation of "interests" and the selection of their representatives proceed too quietly for notice-save on those occasions where formal
choice must be made, as in deciding whether the "Sierra Club" may
represent people who care about the environment in class actions or
administrative proceedings. 111
Understanding the constitutive roLe of law in social relationships
is often crucial not only in characterizing societies but in accounting
for major social change. Robert Brenner's remarkable work on
preindustrial Europe, 112 for instance, identifies two general patterns
of social adjustment to the population declines of the late Middle
Ages: a (typically) Western pattern in which the labor shortage re110. G. CoHEN, supra note 109, at 216-48.
Ill. Su, e.g., j. VINING, LEGAL IDENTITY (1978); Katz, Studies in Boundary Theory: Three
Essays in AdJudication and Polliics, 28 BUFFALO L. REV. 383 (1979); Yeazel!, From Group Lziigation to Class Action Part ll/nterest, Class and Representation, 27 U.C.L.A. L. REV. 1067 (1980).
112. Brenner, Agrarian Class Structure and &onomic Development in Pre-lndustnal Europe,
PAST & PRESENT, Feb. 1976, at 30.
January 1984]
107
suited in more favorable labor terms for the peasantry, and a (typically) Eastern pattern in which the_ same shortage, brought about a?
'fi t' of serrdom

a tig~tenmg of the lords control over their
1'
mtensi ca ton
1
'
Brenner's (richly detailed and here much stmphfied) exp anaser f:s.
' bT
. ht
trol
tion for this dichotomy is that the landlords a 1 tty t?_ug en con
tead of having to grant concessions depended cnucally up~n the
ms
'I . h .
t
I
balance of class power that had come to preva1 m t etr par tcu ar
society. A central component of this po~er balance was the set of
h'
that had been established between the classes.
.
h h d
!egaI re lations tps
Where peasant communities were strongly orgamzed, ~ ey a , o~er
th centuries managed to wring concessions from their lords, ':htch
ha~ been in~titutionalized as law. Thus inst~tutionalized ~s nghts,
these concessions could not be withdrawn without provo~mg massive resistance.II3 Brenner goes on to argue that wh~re (as m France
and parts of western Germany) these customary ng~ts of pe~sant
ro rietorship persisted through the early modern p~nod they dtd so
hec~use centralizing states helped to secure these nghts a?a1~st the
lords and thus retarded the process of capitalist c~nsohdauon of
landholdings. In England, by contrast, where _such nghts had been
eroded for a complex of reasons, small propnetors were unable to
resist eviction.
.
Maybe the point that law and society are inextri~ably mtx~d
eems hard for legal writers to grasp because they sometimes restnct
sh
VIeW
f what law is to a bunch

of discrete events . that
occur
t e1r
0
.
.
.
within certain specialized state agencies (in the most restnct~ve vtew,
the courts alone) and therefore assume that the only question for a
social history of law is the relation between _the output _of these agencies and social change. But if that output IS _all there IS to _law, how
on earth are we going to characterize all the mnumerable ng~ts, duties, privileges, and immunities that people commonly recog'?tzc and.
enforce without officials anywhere nearby? Slavery, for mstance,
may well make its first appearance in the temporary e_mergency p~ac
tices of a settlement, harden over the next few plant~~g seas?ns mto
bl
t m and decades later when the locahues dectde they
mvana e cus o ,
'
'
. b
h
b
want the help of centralized enforcement authonty, ecom_e t ~ su ject of legislation in slave codes. When should a socwlogtcally
Whoever objects at this point that the "law" involved in this description is only
113
h
1
the "soc'aal fact" of "organization" will have to try to find some way to
epap enomena to
:r 11

'th ut mentioning the rules whose maantcnance was ns mz o
descnbe that orgamzauon wa 0
"F' ht t 0
d;lre or the institutional forms in which its tasks were carried out-not to menuon
g
Protect Your Rights!" as a means of organization itself.
144
Critical

108
STANFORD LAW REVIEW
[Vol. 36:57
minded historian (as opposed, for example, to a legal-positivist jurispru?en9 start to speak of the emergence in this society of the legal
mstitUtlons of slavery? At any point, I should think, when she finds
the ~rdinary practices. and discourses of that society assuming or appeahng ~o t~e collectively shared and maintained notions of right
and obhgat10n that support that institution, the moment when
P?We~ becomes institutionalized as "right." Thus, the social/legal
histonan who began her account of slave law in these settlements with
!he codifications would rightly be accused of leaving out the most
Important part of the story. 114 Furthermore, even if the historian refused to recognize custom as law until it was ratified by some official
~gency, she won'~ get very far towards understanding the role of law
m social change If she looks only for the immediate social effects of
~arginal changes in discrete enactments and ignores the whole invisIble ~ackgr~und network of rules (like the basic law of property) that
are sllently mcorporated into people's lives.
Again, since it all seems so incredibly obvious once it's said what
~xplains the persisten_t view of law's marginality in social life? Partly,
It comes from the view of generations of disillusioned reformersliberal reformers mostly, I suspect-who have come to doubt
wh~ther more than marginal social change can be achieved through
~ehberate promotion by those in control of the mechanisms of the
~~~eral state. But this proposition is not really about the limits of law
1t Is about the limits of sel~ctive types of attempts to reorient, usuall;
from the top down, selective formal institutions. Most legal change
t~kes place all through civil society, in thousands of small interactiOns usually with ~o official visibly present at all. It's strange, in a
way, that the Reahst and Law-and-Society scholars who taught us
to see the law "in action" as well as the law "on the b~oks," should so
o~ten be the very same people who revert to restrictive Formalist
~Iews of law _when they stress, in Pound's words, "the limits of effective ~egal actio~." There is a real disjunction here between their soci?logtcal analysis ~~ the law constituting the status quo as dynamic,
mformal, an~ polltlcal, and their programmatic analysis of the law
needed t~ bnng about change as static, formal, and bureaucratic.
The VIew that law is marginal in social life probably also registers
1_14. Actual_ historical societies have conveniently simplified her task in some cases b
to the Vi:gmia settlements, for mstance, was by importation of blacks who were already enslaved somewhere else. W. jORD~N, ~HITE OVER BLACK 71-82 (1968); E. MORGAN, supra note 60, at
29~-3.~7. T~e ~.tory mce!y Illustrates the point that when people go about putting to ether
their matenal economies, they use the "ideal" building blocks of legal relations.
g
a~~ptmg prefabncat~d bundles of officially-legal relations. The way slavery came
January 1984]
145
Studies
109
an overreaction to the preceding generation of Formalists, who often

behaved as if once you described the legal form of an institution or
practice, you had described the whole thing. A "corporation" or a
"city" appeared as nothing more than a shell of legal nghts and powers. The Realist successors to these Form~lists yearned to break
through the formal shell to (as they often expre~sed it) the "liv~~g"
reality beneath it: the "realities" of trade pr~ctlces, power pohtic~,
emotional ties, "behavior," and, of course, social needs. But there IS
no way to detach essences from their forms: The law (in th~ catholic
sense that I've been using) was all along a part of the reahty. I_f ~he
program of Realists was to lift the veil of legal Form to reveal hvmg
essences of power and need, the program of the Critics is to lift the
veil of power and need to expose the legal elements in their
compositi~n.
B. Law as Constitutive qf Consciousness

Many Critical writers would, I think, claim not only that l~w
figures as a factor in the power relationships of individuals and _social
classes but also that it is omnipresent in the very marrow of societythat lawmaking and law-interpreting institutions have been among
the primary sources of the pictures of order and diso_r~er, virtue_ an~
vice reasonableness and craziness, Realism and vlSlonary naivete
and' of some of the most commonplace aspects of social reality that
ordinary people carry around with them and use in ordering t~eir
lives. To put this another way, the power exerted b~ a le~al regtme
consists less in the force that it can bring to bear agamst viOlators of
its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in
which a sane person would want to live. "Either this world," legal
actions are always implicitly asserting, "some slightly amended version of this world, or the Deluge."
A familiar example of the way in which legal categories affect
social perceptions would be the carryover into comn_wn speech_ and
perceptions of the legal distinction between Pubhc. and ~nvate
realms of action, the Public being the sphere of collective action for
the welfare of all through the medium of government (and thus the
only realm of legitimate coercion), and the Private bein~ the sp~ere
of individual self-regarding action. 115 Those who have mternahzed
this distinction 3:s part of the natural order of things, as all of us have
115. For representative Critical treatments of the Public/Private distinc~ion as it has
been applied to specific areas of law, see the articles by Paul Brest, Gerald Frug, Morton
110
STANFORD LAW REVIEW
147
146
[Vol. 36:57
to some extent, are perfectly capable of deriving from it conclusions

such as this: It. is an invasio~ of the privacy and autonomy of a (private) corporatiOn for (pubhc) OSHA inspectors to come upon its
premises '_Vithout a warrant, but the same company's management
can post time-study monitors in the workers' washx:ooms because the
workers have (impliedly) consented to this in advance by private
contract.
. I d~n't f~r a moment mean that this particular set of conclusions-In which readers are bound to recognize the classic late nine~eenth century mind-set, recently dusted off for revival-flows
mexorably from the Public/Private distinction. One could certainly
~!so conclu?e, as many people have, that corporations, being organIzed coll~ct~ves e~d.ow:d. b~ law with. effective coercive power over
people Withm their JUnsdictlon (on their property), are like states and
may therefore exercise their power only through politically accountable ~orms. 116 The crucial point here is that both sets of conclusions
are ~nferred from the same Public/Private classification (coercive-coll~ct.Ive states vs. fr~ely choosing individuals) that sets fairly severe
hmits on the ways m which we can imagine the world and how to
change it. 117
Let ~e t~ ano~her, perhaps slightly less abstract, example which
I hope might Illummate some of the differences between functionalist
and CritiCal, styles ~f ~istori:al explanation. A nineteenth-century
state that we II call Wisconsm" enacts a "lumber-lien" law-that is
a statute giving loggers of wood a priority lien for their wages in th;
proceeds fro:n the sale of cut timber. 118 How might an historian approach the mterpretation of this bit of law? 119 A good straightforward functionalist approach would look for the context of a social
"problem" to which the law was an attempted response or solution ..
J:Iorwitz, Duncan Kennedy, and Karl Klare in the recent Pennsylvania Law Review SympoSIUm on the Public/Private Distinction. 130 U. PA. L. REV. 1246 (1982).
116. See, e.g., W. 0. DoUGLAS, DEMOCRACY AND fiNANCE (1940); Berle, For Whom Cor
flt!"ale Managers are r:~lus: A Not~, 45 HARV. L. REV. 1365 (1932); Berle, Conslliulional Lirmialtons on Corporate Acltvtly-- Prolecllon ofPersonal Rights ftom Invasion Through Ecortomic Power 100
U. PA. L. REV. 933 (1952).
. 117. Indeed the separation of law from society in what I have called the dominant visiOn of !ega~ scholarship is itself a product of the Public/Private distinction. No matter how
::'uch. Real~st ~~d post-Realist scholars blur the distinction in their empirical work on the
law m ~cu~~ they usually end up reasserting it when they describe the "limits of effective
legal acuon. See text accompanying note 26 supra.
. II~. As the choice of this example probably reveals, it was developed in conversation
wtth Wtllard Hurst.
119. The followin.g paragraph is not my proposed history of the log-lien law but merely
a sketch of how one mtght approach the task of interpreting its history.
January 1984]
111
Let us suppose that our functionalist hi~torian finds such .a p.roble~

in the circumstance that logging enterpnses were short of hqmd capltal out of which to pay wages but needed to attract labor into the
forests for a long winter's work. The solution to this problem was to
give some additional security for wages in ~he lien, whic.h was somewhat easier to enforce legally and less subJeCt to trumpmg by oth~r
claims than was an ordinary action for breach of contract. There 1s
nothing wrong, it seems, with this explanation as far as it goes. But
then one starts to wonder: Why this solution rather than others one
could think of-others that were actually adopted in nearby times
and places? Here's a quick oflhand list of potential solutions th~t
doesn't even begin to exhaust the possipilities: (1) use slave labor.~~
the forests; (2) use conscript labor-either as part of c~mpulso~ mlhtia service or as a statutory duty of every able-bodied man m the
state; (3) raise the capital fund for wage payments out of taxes; (4)
refuse to "intervene in the private contracts" between logger and employer, and let the loggers contract, if they can, for their secu~ity
interest in the wage bargain; (5) run \ogging as a state enterpnse,
paying loggers out of general revenues or out of an excis~ tax o~ log
sales; (6) make the loggers general partners in the enterpnse, ent1tled
to manage company concerns and to share in ~ompany profits .. In
the perspective created by some.of these alternatives, the lumber-h~n
law appears to have been the product of a political consciousness m
which, .for example, "enterprise" was "private," though the sta~e
might be expected to help it out and even '_'regulate" a b~t, an? m
which labor was "free" but definitely subordmate. The mam pomt I
want to make here is that this statute was not only the product of such
a consciousness but helped to reproduce that consciousness by confirming it. The statute's enactment made some political alternatives
that the society had already discarded as bad or unworkable (slavery,
conscription, state enterprise) just a tiny bit more unthinkable and
nl"ade it a tiny bit more difficult to imagine something altogether
outside the scope of familiar possibilities (such as the option of laborers as equal partners). In short, the legal forms we us.e set limits on
what we can imagine as practical options: Our desires and plans
tend to be shaped out of the limited stock of forms available to us:
The forms thus condition not just our power to get what we want but
what we want (or think we can get) itself. 120 This perspective com120. I have no reason, incidentally, to think that Hurst himself would disagree with this
analysis, since his work has always been devoted to showing how lawmakers' not.ions of t~e
practical and functional have been shaped and constricted by the basic categones of thetr
,ill
I
II
Critical
148
112
STANFORD LAW REVIEW
[Vol. 36:57
pletely collapses the distinction that legal writers sometimes makethat indeed I made earlier in this article when discussing the Variations-between "instrumental" and "symbolic" uses of law. One
never has more power than when one has so successfully appropriated the symbols of authority that one's actions are not seen as exercises of power at all, but simply as expressions of sound pragmatic
common sense. 121
Another way of looking at what seems to be the key difference of
approach between functionalists and their Critical opponents is that
the functionalist examines what has actually happened and explains
how it all "works," how each development fits into the pattern created by all the others, while the Critic takes each event as situated
not on a single developmental path but on multiple trajectories of
possibility, the path actually chosen being chosen not because it had
to be but because the people pushing for alternatives were weaker
and lost out in their struggle or because both winners and losers
shared a common consciousness that set the agenda for all of them,
highlighting some possibilities and suppressing others completely.
How can one identify the counterfactual trajectories, the roads not
taken? From the experience of other societies, from the hopes of
those who lost the struggle, from routine practices that the same society has tried in other spheres of life without ever dreaming they
political consciousness. I think the important difference between him and the Critics is some
thing like this: He takes the consciousness of nineteenth-century lawmakers-consisting of
such_ elements as distrust for executive authority, faith in the market, a Promethean urge to
d?mt~ate natu~e, etc.-as the product of a liberal, middle-class mind-set forged in European
htstoncal confltcts of the seventeenth and eighteenth centuries, and pretty much fixed since
then. To express this perhaps rather too grandly, for him, consciousness ceases to have a
history after it reaches the American shore; it has only a series of instantiations. The view of
many Criti_cs, o~ the other hand, is that: (a) no political consciousness can persist simply
because of merua; enormous energy and effort (though rarely, to be sure, fully self-conscious
e_ffort) m~st be poured into reproducing it and protecting it from competition and disintegratiOn; (b) many case, the content of the basic American liberal ideology has not been constant
over the last two centuries, but has undergone important transformations; and (c) even in
what appear to have been its moments of greatest stability and most widespread consensual
adoption, the liberal ideology was shot through with so many contradictions, so many implications leading the society in opposing directions, that the maintenance of consensus cannot
be explained simply by the dominance of that ideology. These Critics see their task as explaining how the basic political ideology, the unexamined background common sense of the
time, was reproduced and transformed and its centrifugal tendencies kept under control and
they see legal forms and practices as central to these processes. In a nutshell, Hurst sees l~w as
a product of.an ideological consciousness applied to practical problem-solving; the Critics see
l~w as_ a pr~mary producer of that consciousness. The difference is partly one of emphasis, of
dtvergmg vtews of what most urgently needs explaining.
121. Su S. LUKES, POWER: A RADICAL VIEW (1974).
January 1984]
149
Studies
113
might be applied to the situation at hand, and from. imagination disciplined, as one hopes, by the knowledge of past failures.
I take Karl Klare to be practicing something like this method in
his history of the conservatizing Supreme Court interpretations of the
Wagner Act. 122 Klare has been criticized for seeming_to assume that
the Wagner Act was radical legislation to start out_ With. It was, s~y
his critics as mildly reformist (or, if you prefer, designed to coopt) m
inspiratio~ as in later interpretation. 123 _To t~~ extent t~a.t _Klare's
account is one of the corruption of a radical V1s1on, the cnt1c1sm has
some bite. Yet the main problem with the criticism is that it takes for
granted a single-trajectory view of historical change; it assumes that
things must evolve along the path they start out on: In the case _of
legislation, this path is sometimes ide~tified ~y a cunous~y Formahst
method as the "intent" of the enactmg legtslature, as If that legal
construct had both some definite substance and some privileged
claim to set the course of history! Klare, however, situates the Wagner Act at the junction of myriad potential tracks of departure-one
could identify some of these by the programs of labor leaders of the
time, others 'by the experiments of labor movemen~s els~where, a?d
still others by the "corporatist" models being pract1ced m the maJOr
European states and in some American industries-and t~en shows
how the Supreme Court decisions, informed by a per~~1vely ~.~ld
gen~;ral postwar consciousness on how to secure the co?dit1ons of mdustrial peace," systematically helped lead the society down one
124
track rather than any of the possible others.
122. Klare ,Judicial /Jeradicalization of the Wagner Act and the Origins of Modem Legal Consciou.rness, !937-1941, 62 MINN L. REV. 265 (1978).
123. Comment, The Radical Potential oftlu Wagner Act: The Duty to Bargain Collectiuely, 129
U. PA. L. REV. 1392 (1981).
124. Another, and separate, issue raised by the article is whether any important part of
the history of labor relations is revealed by Supreme Court opinions at all: Are these mandarin dictates not absurdly remote from the "real" world of labor struggles? I will try to deal
with this issue in general terms, see notes 127-40 zizfta and accompanying text; for now, l~t me
just say that Klare wouldn't claim to have done anythin~ ~ore than to expl~re a fracu~nal
contribution to the formation of conventional ways of thmkmg among the elttes about the
labor problem." The Justices borrowed from, an? t~us harden~ by t_heir ~uthoritative example, some of the prevailing mentalities of the1r ume. In conjunctt~n wn_h hundreds ~f
other acts of consciousness-formation, these set the agenda for the ways m wh1ch many dec1
sian-makers in that generation framed issues having to do with labor. If on~ wanted to. ex
pand on Klare's work, one could look for other manifestations of the mental~ty he desc~1~es
on the Court in other institutional settings, as well as for deviating and opposmg mentalmes.
Kelman, Trashzizg, 36 STAN. L. REV. 293 (1984) contains a valuable speculative sociology of
high-level legal doctrine.
150
114
STANFORD LAW REVIEW
[Vol. 36:57
C. Indeterminacy Located in Contradiction

. Thde partial. cr~tiques attack the twin determinisms of function 1
1sm
an fi evolut10msm
. .
adrawn
L
1 R mo. st1y b y means of empmcal
counterexamples
rom ega
eahsm and the Law-and-Society movem . t .
the case of functionalism (in practice the effiect of 1
. en m
1 h d'cr
'
aw vanes enorluerences
of power politics ' cultural p red'lSpOSltlOn
..
mous y ' Wlt
h
to
.
accep t lt, strengt of local custom etc) and fi
riography in the case of
(there
opme?t and of legal response; indeed variati n .
eve path Is partly a function of le al variation o m developmental
critiques add up to the ;roposition
m social co~:lt.ext, it varies with variations in that conte:tsl ~~~ aw
r.ecent Critical writing,
aim of laws mdetermmate relation to social !if;
. . fi
cant
step
further.
The
same
body
of
Ia
.
h
e
a
sigm
1
1
w, m t e same conte t
a wa~s .ea~ to contrary results because law is indet
.
x ' c~n
co~e, m Its mception, not just in its applications Thise[~~~ate ~t Its
exists because legal rules derive from t
.
e ermmacy
lective constructs of many minds th ts rucftureds of thought, the colto
W
' a are un amentally contradicot~rs a:da~~r t~::~~~~!oeas, dcolnst~ntly torn between our need for
1d
.
.
' n aw IS one of the cult
mvent m order to establish terms upon which
~ra .evlces we
without their crushing our identities, our fr:~~~ use wtth ot.hers
On~ way, therefore, of writing the histories of le al 's e;en o~r hves.
amme successive attempts to build structu
h g . y te~.s lS to exand prevent bad fusion Such h' t .
res t at will facilitate good
. .
1s ones can reliabl b

exhibit two
properties. First ' b ecause t h e structures
Y ehave
expected IIto
.
usua y
b ~en b mlt by dominant elites (thou h wi h .
glmg from below), their content wiTh be ~de~~~ui~!~om thos: stru~
~ethods of sorting out good from bad i
. g .' That .ls, their
dnteractl.ons wdl contam a bias
m favor of existing orders Second
f~nda~ental contradictio~ betwee~ ~~e :~~~ ~mpfor~ant bedcaus: th.e
Vlduahty has never been (perh
or uslon an for mdlaps can never be?)
1
structures represent unsuccessful and th . h
. overcome, ega!
. us ~n erently unstable mediations of that contradiction 0
tures will tend to become ~ngl:eerd tlmde, t erellfore, these legal struc.
an to co apse.
Accordmg to this vision modern A
.
.
the story of how the lates ,
mencan legal history is in part
legalism " arose and de It of ~~es!! great cultural constructs, "liberal
devices (chief among t~;s~pbeel'nlgtstohwnd:~~ractefristic set of mediating
e 1V1s1on o soci 1 l'f;
.
vate sphere of contracting individuals , e g ., "th e amar1keet,
m,~o and
a pn-a
evolutioni~m
partia~
~~: 7::tc~r~gmal an~ p~werful
151
a~~:~~;~:;~:~;; ;ist~
t~~tT:~~~ ;~get~er, t~ese
ho~ever, ~a~~
January 1984]
115
strictly limited sphere of constitutional/democratic collective coercion, "the state"); how the construct was purified of its preliberal
elements and elaborated to its highest pitch in the late nineteenth
century; and how, at the moment of its perfection, it started to decay
under attacks from without and the pressure of its own internal contradictions--ultimately leaving us where we are now, living in its
ruins, no longer believing in its mediating powers, and clinging to it
still because we have found nothing to replace it, and being faithless
moderns, doubting that we ever can. The general framework of this
story has served as the background to a growing number of histories
of particular bodies of legal doctrine and theory, each of which locates its special set of rules and principles within the fundamental
contradiction and shows how one attempt after another to mediate
125
that contradiction results in failure.
The common thread of these histories is the observation that the
contradiction makes available for the decision of every case matched
pairs of arguments that are perfectly plausible within the logic ofthe
system but that cut in exactly opposite directions. The managers of
the legal sys~em preserve their sense that law is actually relatively
orderly and predictable by assembling a bunch of devices to keep
these oppositions from becoming too starkly obvious (even to themselves). They classify some of the oppositions as "anomalies and exceptions." They stick others in.separate categories (e.g., law/equity).
They rule out still others (the capitalist wage-bargain is invalid, at
least in times of high unemployment, because concluded under duress; the equal protection clause prohibits rationing scarce social
goods by ability to pay) by a separation between law and politics or
simply by arbitrary ideological fiat (interpretations of rules that
would too much alter the status quo are wrong per se). Nonetheless,
these fudging devices are subject to strains that eventually crack
them apart. Enemies of the status quo expose obviously ideological
125. Kennedy, The Structure of Blacalotu's Commenlanes, 28 BUFFALO L. REV. 205 (1979),
th.e pioneer venture in this mode, may be said to have founded an entire school. See e.g.,
Kainen, From Vested lo Subslanliue Rights, 31 BuH'ALO L. REV. (1982); Olsen, The Family and the
Markel: A Study of Ideology and ligal 'Reform, 96 HARV. L. REV. 1497 (1983); Singer, The Legal
Rights Debate in Ana/ylicaiJurisprudenuftom Bentham lo Hohftld, 1982 WIS. L. REV. 975; Vandevelde, The New Property of the Mneleenlh Cmtury: The Development of the Modern Conupl of Property,
29 BUFt'ALO L. REV. 325 (1980); Note, Tortious lnterferenu with Conlrac/ual Relations 1n the Ninel~enlh Century: Th~ Transformation of Property, Conlrad, and Tori, 93 HARV. L. REV. 1510 (1983)
For those unfamiliar with the method, an introduction to it notable for its lucidity and
cleanness of line is Elizabeth Mensch's essay on contract law as a mediator between the contradictory desires to promote freedom of action and to guarantee the security of expectations.
See Mensch, supra note 53.
Critical
152
116
STANFORD LAW REVIEW
(Vol. 36:57
contrivances for what they are and develop arguments based on utopian counterpossibilities of the system. ("Freedom of contract" as
administered is just the rule of the stronger; contracts can't be-really
free unless entered into by parties with "equal bargaining power";
hence, "freedom of contract" norms require regulatory schemes
equalizing bargaining power.) Ordinary lawyers and judges with no
wish whatever to destroy the system lay bare its contradictions in
adversary arguments or dissents. And jurists whose main ambition is
to justify the system by showing how clear and orderly it is at its core
end up expounding it so well that its faults appear in plain view. 126
Anyone who has come to adopt this approach has left functionalism far behind. For if it turns out to be true that law is founded upon
contradictions, it cannot also be true that any particular legal form is
required by, or a condition of, any particular set of social practices.
And, in fact, one of the skills that the fans of this method have developed to an abnormal extent is that of supplying, whenever they hear
a claim of functional relation between a legal rule and a social practice, the standard counterclaim, with counterexamples, for an exactly
inverse relationship.
V.
CRITICIZING THE CRITICS: SOME POINTS OF CONTROVERSY
One of the melancholy truths about Critical Legal Studies generally seems to be that its students, although many of them try hard to
write free of jargon for wide audiences, have for the most part not
succeeded in communicating their ideas clearly enough to attract
much relevant criticism from outside opponents. Most of the interesting controversies that I've become aware of have taken place
within CLS, among people who consider themselves part of the
movement. I will devote the space remaining here to a brief account
of some of these controversies and will scatter remarks here and there
to indicate where I stand on them. These controversies tend to swirl
around the validity of the approach described in the last section: legal historiography as the intellectual history of the rise and fall of
paradigm structures of thought designed to mediate contradictions.127 This special kind of doctrinal history is surely the most dis126. It would be inconsistent with the Critics' inclination to relativize all historical stories for them to claim any privileged status for their own, and they don't. Their story is,
presumably, as time-bound in its assumptions and as subject to displacement by other, more
persuasive stories, as any other historical account.
127. Again, this is by no means the only way in which Critics write history. Every type
of partial- or extended-Critical mode that I've mentioned in this piece has defenders and
adherents; and the chief rival to the intellectual-history-of-doctrinal-contradictions approach
January 1984]
153
Studies
117
tinctive Critical contribution, as well as the one that has caused most
of the arguments.
A. Argument # 1: ((The history of .DOCTRINE? This is the big

liberating move? You've got to be kidding/"
This argument is more complex than first appears and usually

turns out to consist of several different points:
(1) "You're just doing the history of legal ideas; what we need is
the history of the law's effects on actual behavior in the real world."
This point I think has been suffi.ciently addresse~, already: It's !~
other version of the false law/soc1ety d1chotomy. The econom~ 1s
no more "real" than "legal ideas." It's an assemblage of conventions
of which "legal ideas" such as property, co~tract, pr?mi_ssory and
fiduciary obligation, not to mention money 1tself, are md1spensable
elements and propagators.
. . .
.
(2) "But assuming that you're right, that the M~tenal.ls mext~l
cably 'mixed up with the Ideal, isn't all this doctnnal h1story sull
excessively Idealist? For one thing, it seems so _abstract _and bloodless,
so far removed from the world of concrete soc1al expenence. Fo_r another the method makes it look as if the history of these legal/mtellectu~l structures were somehow self-determining-as if the
structures rose and fell because of some objective inner dynamic unrelated to the world of social struggle or, for that matter, to real people of any kind. Doesn't this just sUbst~tu~e anoth_er ~et ~.:
evolutionary determinisms for the social evolut10msm that 1t reJects.
This point is troubling, though it is p~rhaps more a~out appearance than about substance. It's true, I thmk, that the kmd of structuralist historiography that some of the Critics ha~e writte~
sometimes reads as if these impersonal structures had a hfe of the1r
own and human beings were enslaved to the needs of that life-~ycle,
building or demolishing as the Wotld-Spirit might dictate. Th1s appearance is quite unfortunate because I don't believe that these Cntics want to divorce the life-cycle of their structures from human
agency. On the contrary, their point is t_hat p~ople b~ild these ~ys
tems to satisfy their needs for cooperat10n w1th,_ wh1le pro~ectmg
against their terror of, one another. As people bmld, th~y _re1fy, attributing to their own creations an impersonal determmmg force
is probably the history-from-the-bottom-up acco~nt o_f op_pressed. groups strug~li~g against
ruling-class versions of law and for their own verstons, msptred mamly by the bnlhant example of E.P. Thompson's work. Su E.P. THOMPSON, THE MAKING OF THE ENGLISH WORK
lNG CLASS (1963); E.P. THOMPSON, supra note 88.
I
I
I
I
I
I
I
/
I
I
I
I
I
I
;
154
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STANFORD LAW REVIEW
"
.
( the logic of freedom of contrac
.
Critical
[Vol. 36:5 7
.
strictly limiting the stat ,
t requires that legal lines be drawn
e s power to atfe t th
b
.
the bargain") But th C . .
r.
c
e su stantlve terms of
.
e ntlcs .~ar from b r .
tures determine everything s ;nd
h . e ~evmg that these struc11
terminate they are-ho~ ~h
a I t eir time showing how indeconsequences. What the structu;~ "~=:s le:~ to contradictory
set of social consequences but th
.mme IS not any particular
..
e categones of tho h
d d"
wh erem pohtical conflict WI"II b e earned
. out.
ug t an
Iscourse
If you accept, or at least are will in

I"
moment to this defense of th t
g to Isten sympathetically for a
would be hard for the Crit" e s rducturalis~ method, you'll see why it
Ics to o as their opp
k
onents as -to tie in
t h e story of the rise and r. II f
.1a o structures t
social struggles between

.
o narratives of particular
.
concrete mterests Th C ..
e ntics are trying to
d escnbe something that p artl Y transcend .
helps create the conceptu l

.
s concrete Interest because it
struggle. What the part"esa umversel. shared by all parties to the
are strugg mg
h
pret and to have applied . th . r.
over Is t e power to inter.
m e1r .~avor the (
d"
tlons of a common set of
.
contra Ictory) implicapremises. For exa 1 b
actual work of elaborating th b .
mp e, ecause most of the
e asic terms of r . l .
. l
. po Itlca discourse is
d one b y people at the top of th
,. .
e socia pyramid h"
.
, a Istonan would to
a tzmzted extent be able t t II h
'
o e t e story of th .
f
,
. ,
elIte s attemp t to rational"
I"
. .
e nse o a structure as an
1ze e 1te pnv1leg
d h
t h e collapse of the elite's E
.
f
es an t e story of its fall as
d
.
mp1re o Reason
un er siege from the enefiles below. Thus the "clas . l" I
sica ega! tho ht f h I
.
,
century was the creation f I"
ug o t e ate nmeteenth
o e lte, mostly R
bl"
. . epu lean or conservative
M ugwuplp, lawyers and jud es Th
ology did often originate in ~eform e cntiques that e~posed it as ideleft of that elite (left-wing urban Pr movet_n~nts considerably to the
alism, Populism the soc"al pi
. og~essvsm, academic left-liber,
- annmg wmg f th N
o
e ew Deal), which
were expressing .interests and
what further down in th
. plrograms of classes and groups some. .
e SOCia structure y
h"
ample VIVIdly demonstrate\
h
. . et, as t IS particular ex
s', sue
a smpl" t"
.
mcomplete and fundamental!
.I
. ~~ ~~ narrative would be
t"
h
Y m1s eadmg 1f It
.
~ves as t e sole architects of ideolo i I
.
~ast e1Ite conservatively) left-wing critics o
g ~a mystificatiOn and their (relar representatives of 1
earers
of
Critical
truth
S
h
ower social classes as the
b
.
uc an account
ld b
wou o scure the extent
to wh Ich leftists and lower so . I I
"d I
Cia c asses shared th b .
e asic premises of
th e 1 eo ogical structure A d .
n It would ob
h
scure t e role that elite
conservatives themselves-th" k r.
. I
In .~or exampl f H I
Cia reformer!-played in the d
I" .
e0
0 mes, hardly a SON
emo ltiOn of that structure
evertheless, the structuralist historians
I
.
are part y to blame for
January 1984]
155
Studies
119
the ways in which their work has been misunderstood. They do sometimes write the driest possible ldeengeschichte of doctrinal concepts
-evolving and dissolving over time, without paying nearly enough
attention to the applications to which these doctrines were put in
everyday practical reasoning or to the specific controversies or political ey:ents that suddenly opened up the doctrines to question. The
structuralists would, I think, again respond that legal structures, because of their indeterminacy, can't be expected to connect iq any
predictable fashion with the interests of any particular class or group.
Thus, a writer couldn't put the history of structures in the context of
political events in any way that would make a coherent narrative.
"Consideration" doctrine, for example, has played some part in
128
building Anglo-American privat<: law structures,
but it would be
hard to attribute developments in the doctrine very convincingly to
apy one side's political interests. 129 (Nobody would write: "Agrarian
radicals called for popular takeover of the banks and immediate abolition of the Pre-Existing Duty Rule.") One could concede this point
to the structuralists and still ask them to embed their story in a narrative context that would at least supply Ju/ijects and. occaszims to the
narrative to show that it is human beings with reasons and motives,
not disembodied Spirits, who drive the manufacture of legal concepts: Who pushed whic;;h arguments on.what occasions and why?
What happened to set off the arguments? What happened to
destabilize previously stable conventions? 130 We ought to have a rule
of style: no sentence without a subject; no intellectual move without
a reason-even if the particular subject and reason may sometimes
be largely incidental to the grander thematic history of legal
consciousness. 131
128. On the "latent functions" of consideration, see, e.g., D. DAVIS, THE PROBLEM OF
SLAVERY IN THE AGE OF REVOLUTION 1770-1823 (1975).
129. This does not mean, although the people I've called the disengaged think it does,
that "consideration" doctrine has no social importance and should be treated solely as a piece
of legal esoterica; the structuralist approach says that it matters all right, not all by itself, to
be sure, but as a piece of a structure, a complex cultural code.
130. Joseph Singer does this contextualizing very usefully. For example, in the middle
of an extremely abstract history of modern analytical jurisprudence, he uses the context of the
law of labor injunctions to show why it might matter to anyone whether "rights" entailed
correlative "duties" or not. Singer, supra note 125, at 989. A model for this sort of approach
to intellectual history is Q SKINNER, THE FOUNDATIONS OF MODERN POLITICAL THOUGHT
(1978), which takes ancient arguments on authority, its legitimate exercise, proper limits, and
redress for violating those limits, etc. through the successive political crises and controversies
in which the arguments were deployed, warped, bent out,of shape, and finally completely
recast by the strategies of the disputants.
131. When I say "subjects," it should be clear that I don't just mean individual subjects;
156

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Critical
(Vol. 36:57
(3) "All right then, I can see why you want to write legal history
as the ~istory of legal consciousness, and I can even understand why
~ou ~hmk that, although that history is made by real people in social
hfe, It can be told without reference to pressures of immediate interest. But what I can't understand is why you chose to write about
these particular forms of legal consciousness-case law and treatise
literature produced by the high mandarins of the legal system-in
the_ first plac~. After all, isn't part of your theory that everyone in
~ociety-not JUSt lawyers and certainly not just jurists and appellate
judges-produces, applies, and interprets 'law.' And isn't it therefore
perverse of you to stick with the mandarin materials beloved of the
most reactionary of Formalists?"
This is not an easy criticism to answer, but as a start I might say
th~t I've never heard any Critic argue (as some traditional legal his-
tona~s have been known to do) that Critical histories ought to focus
e~clus_we{y on_ mandarin materials. But for an historiographical practice JUSt settmg off on its travels, the choice of these materials does
make a certain amount of sense for several reasons. First, case law
and treatises are relatively accessible. Thus you don't have to do a
lot of digging to get materials to practice the method on, and newcomers, your students for example, can learn the method and
~roduce fini~hed pieces of research in a reasonabl~ time. (In a field
hke law, which doesn't give people a long dissertation period to do
research and develop their ideas, this is a real advantage.)
Second, the mandarin materials are among the richest artifacts of
~ society's legal consciousness. Because they are the most rationalIzed and elaborated legal products, you'll find in them an exceptionally refine~ and concentrated version of legal consciousness.
Moreover, If you c~n crack the codes of these mandarin texts, you'll
often hav~ tapped mto a structure that isn't at all peculiar to lawyers
but that IS the prototype speech behind many different dialect dis. .t h e society.
132 F
courses m
or one example, the elite legal thought of
the late nmeteenth century ("classical" legal thought, as it's somelegal ~ncepts a:e made collectiv~ly, and the makers may be officials, judges, subcultures of
Pn;>f~10nals or mtellect~als, the Ideologues of political factions, workingmen's associations,
rehgiOus .groups, hea;y-.mdustry board chairmen, mass movements, or other collectives of
whose existence our hmJted categories have left us unaware.
. I am uneasy about this formulation even as I utter it. My colleague Tom Heller has
v1gorously ar~ed that my at~achment to narratives with subjects is a sentimental reaction to
a prestructurahst past. For h1s reasons in detail, see Heller, Structuralism and Critiqu~ 36 STAN
L. REV. 127 (1984).
'
.
132. M. TUSHNET,supra note 101, exposes such a structure.
January 1984]
157
Studies
121
times called) is ,strikingly parallel in its basic structure to classical

political economy. 133 For another, the transformat_ions in the structure of legal thought which eventually led to Reahsm and the legal
ideology of the administrative state have very _close an~lo~es in the
rise of institutional economics. 134 But the crucial question IS whether
studying elite legal thought will equip you only to study other elite
dialects or whether it will also help you understand the vernacular,
the common forms of legal discourse. It would take a lot of nerve to
answer this with much confidence because I know of very few attempts so far to apply the structuralist method to legal discourse at
the field levels of lower-order officials, practitioners, or private
lawmakers, but it seems plausible to suppose that the method would
work at that level also. 135 My guess is that field-level studies would
reveal a lot of trickle-down effects--a lot of mandarin ideology reproduced in somewhat vulgarized forms, 136 and doubtless also mixed up
with a lot of foreign elements (as nineteenth-century American labor
organizers, for example, assimilated the mainstream ideologies of
their culture but mixed them up with elements less often found at the
elite levels--evangelical religion, precapitalist i?,eas of work, time,
and community, and some solidarist strains of European socialism 137). Actually, these effects may :qot be trickle-down effects at all,
but rather refracted trickle-up effects. That is, the mandarin ideology
may represent simply an elaborated, purified, and formalized version
o'f a consciousness whose primary producers are to be found all over
the society. If either of these suppositions is even partially correct,
regardless of the actual directions of influence, people interested in
133. See P. ATIYAH, supra note 53, at 660-69; Balbus, Commodity Form and Legal Form: An
EJ"Stl,l on th~ "Re/atiw Autonomy" o/th~ Law, II L. & Soc'v REv. 571 (1977).
134. &e Heller Th~ Po/ziical Economy Ammi:an Federalism, in EuROPEAN ll\'TEGRATION
o/
IN THE LIGHT OF THE AMERICAN FEDERAL EXPERIENCE - (M. Cappelletti ed. 1984)
(forthcoming).
135. See, ~.g., Simon, Legality, Bur~aucracy and Class in the w~{for~ Stak, -.yALE L.j. (1983) (forthcoming) (structural analysis originally developed in context of pnvate law doctrine applied to study of lower-level welfare bureaucrats); s~~ also J. REID, LAW FO~ THE
ELEPHANT: PROPERTY AND SOCIAL BEHAVIOR ON THE 0VERLAN!l TRAIL (1980) (bas1c elements of formal legal rules of property and contract internalized by laypeople an~ r~u~inel~
applied in contexts remote from officials and courts); Katz & Teit~lba~~ PIN~Jurz~diCtlon, th~
Vag.uness Doctrz'ne, and th~ Rule o/ Law, 53 IND. L.J. I (1977-78) (disposition of juvemle offenders)i Weisberg, D~r~gulat1'ng D~ath, 1983 Sur. CT. REV. 303 (1983) (counsels' arguments to
juries in death cases).
136. The common speech of practically-minded people, as Keynes famously remarked,
is often composed largely of the theories of long defunct intellectuals. J. KEYNES, GENERAL
THEORY m EMPLOYMENT, INTEREST AND MONEY (1936).
!37. Su, e.g., H. GuTMAN, supra note 74, at 3-117 (1976); D. MONTGOMERY, BEYOND
EQUAUTY: LABOR AND THE RADICAL REPUBLICANS 237-41 (1967).
158
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Critical
[Vol. 36:57
popular legal consciousness would be making a serious mistake to

ignore studies of elites.
Third, in the particular context of the law schools, it has made
good strategic sense for Critics to focus their energies on the deconstruction of mandarin materials because their method gives each
other ~nd their students alternative ways of thinking about the very
matenals that law teachers have traditionally cared about: the core
doctrinal subjects Of the first year curriculum. Although the Lawand-Society movement tried for years to convince traditional law
t~ac~e~ that thes~ core subj~cts were "irrelevant" because they
dtdn t have anythmg to do wtth the real world," it had very little
effect on the teaching and writing that went on inllaw schools. The
Crities, by contrast, have engaged traditional doctrinalists on their
own turf and ha~e in the process st_irred up a fabulous ruckus. My
guess, however, ts that thts strategtc usefulness will not last much
lon?er; I ~~edict that the forces of the orthodox will simply abandon
thetr tradttional doctrinal ground to the Critics, claiming that "it
doesn't matter anyway, because it doesn't have anything to do with
the real world." Empirical arguments, which used to be the stock in
tr~de_ of le~t-li~eral reformers trying to expose the gap between legal
pnncip_les m htgh-sounding pretension and in seamy operation, will
mcreasmgly be heard from conservatives claiming "there's no evide~c~" that elit~ legal ideology affects anyone's "behavior." Simple
anti-mtellectuahsm, the claim that all these academi"c debates over
doct_rine are doubtless fascinating to the Rapunzels of the ivory tower
but Irrelevant to t~e practical tas~ of lawyering, will also be adopted
by these conservatives. When this happens, the Critics will have to
?nd ne~ ways ~f bringing home to mainstream lawyers the historic~ty and tdeol_ogtcal nature of those lawyers' ordinary ways of thinkmg, and thts need will force the Critics to try to decode the
vernacular.
Th~ _Critics s~ould try to do that anyway. I love the work that
the Cnttcal ~~ctn?al historians have been doing. I think it's among
the most excttmg Intellectual work being done anywhere and that it
?as revolutionized our vision of our legal past. But I also think that
Just as t~e Critical _narrative mode of intellectual history has misled
readers mto supposmg that the Critics have bought into the idealism
of th_e old Formalists who thought that legal ideas just "evolved" accordmg to some mysterious inner dynami'c its focus on mandarin
materi~ls has_ led readers to suppose Critics ~o be trapped in the old
Formahst behef that only specialized-law-stuff-separate-from-politics
January 1984]
Studies
159
123
is law. My point is-and I hope this piece has been persuasive-that

the Critics don't at all think that way about law. As E.P. Thompson
has said about his own work,
I found that law did not keep politely to a "level," but was. at every
bloody level; it was imbricated within the mod7 of produc~1?n and
productive relations themselves (as property-nghts,. defimuo~s of
,agrarian practice) and it was simultane?u~ly p~esent m th~ phtlosophy of Locke; it intruded brusquely w1t_hm a!en categ~mes, reappearing bewigged and gowned in the gu1se of Ideology; 1t danced .a
cotillion with religion, moralizing over the the~ter of T_yburn; It
was an arm of politics and politics wa_;; one o~ 1ts arms; 1t was an
academic discipline, subjected to the ngor of !s ow_n a:utonomous
logic; it contributed to the defi~ition of the self-1dent1ty both of rulers and of ruled above all it afforded an arena for class struggle,
'
' .
within which alternative
nouons
of law were foug ht out. 138
Specialized elites may exercise a disproportionate influence on

the manufacture of the forms that go into the constitution of legal
relations but the forms are manufactured, reproduced, and modified
for speci~l purposes by everyone, at every level, all the tim:. Critics
are not going to get this insight across if they don't swttch their
focus. 139
138. E. P. THOMPSON, THE POVERTY OF THEORY 96 (1978).
139. Some examples of what research into legal consciousness at the fi~ld lev~) mig~t
yield are already available. Leon Litwack's study of Southern planters'. relauons with the1r
newly emancipated slaves after the Civil War contains a wealth of ev1dence of how both
planters and freedmen thought about (legal) "freedo~" and "p~perty" and_ "co~tract" and
of how they tried to put their ideas into practice. For mstance, L1twack descnbes m thorough
detail the kinds of contracts that planters used to bind their freedmen to the land, how planters:freedmen, local courts, and the Freedmen's Bureau in~erpreted thos~ contracts, and what
all sides thought about them. He shows, in short, the soc1al/legal relauons of contract labor
in the very act of their manufacture. L. LriWACK, BEEN IN THE STORM So LoNG: THE
AFTERMATH OF SLAVERY 336-449 (1979). William Sewall's study of French labor movements in the early nineteenth century shows how French workers carried forward from the
Ancien Regime various ideas of workers' "corporations" founded on a sense of craft co_mmunities and how, in the throes of successive political and economic crises, post-~evolut.IOnary
movements converted these traditional ideas into republican, and then revoluuonary, Ideologies of solidary corporate association. This is, in effect, a study of the social/ideological content of the legal form of the "corporation" from a new angle, the angle ofthos~ who borrow_ed
some of their forms and practices from their rulers but refashioned and combmed them wuh
forms of their own to suit their own purposes and special view of their situation. W. SEWALL,
WoRK AND REVOLUTION IN FRANCE: THE LANGUAGE OF LABOR t"ROM THE OLD REGIME
TO 1848 (1980). And Michael Burawoy's extraordinary participant observation study of a
modern industrial factory exposes the microscopic detail of the processes that engage the
workers' consent and loyalty to the way the work place is managed. One of the many_ sets of
such processes are those of what he calls the "internal state," the plan~'s inter~al eqUJ~alent
(grievance procedures and collective bargaining) of the "rule of law" m _th~ w1der so~lety
apparently impersonal institutions through which workers are granted a hmued share _m governing and to whose rules all the "citizens" of the plant, workers and management ahke, are
160
Critical
124
STANFORD LAW REVIEW
(Vol. 36:57
There are already signs of such work being done within Critical
Legal Studies, 140 and more is doubtless to come. The more, the better, not because workers' or freedmen's consciousnesses are somehow
more "real" than Samuel Williston's consciousness (that belief is a
sentimentalization that obscures how much the consciousness of all
these people springs from the same cultural taproots) but because
we'll never understand the power that legal forms hold over our
minds unless. we see them at work up close, in the most ordinary
settings.
B. Argument # 2-The Cniics who do ziztellectual-history-of-doctnizalstructures haoen't got any theory if the causal relations between
legaljdoctrzizal change and other social change, except
their claim that the contradiCtions wzihziz legal
structures ma/ce such relations cpmplete{y zizdetermzizate. But this claim
if zizdetermzizacy is sure{}' exaggerated-there are lots if regulaniies ziz
legaljsoci'al relations
This argument has to be broken down a bit to be responded to. I
think that, at this stage, the response can be very short because much
of it has been answered already. It's true that, for example" the Critics have not produced an analysis along the lines of the traditionalist
functionalist histories or of instrumental Marxism that relates
changes in the legal system to changes in the economy. The whole
point, recall, of the Critics' critique is that the "economy" isn't something separate from the "law," which reacts on law and is in turn
reacted upon by it; the idea of their separation is a hallucinatory
effect of the liberal reification of "state" and "market" (or "public"
and "private") into separate entities. Because the economy is partially composed of legal relations, legal and economic histories are
not histories of distinct and interacting entities but simply different
cross-cutting slices out of the same organic tissue. Again, if the Critexpected to adhere for the common good. M. BURAWOY, MANUFACTURING CoNSENT:
CHANGES IN THE LABOR PROCESS UNDER MONOPOLY CAPITALISM 109-20 {1979).
140. D. KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A
POLEMIC AGAINST THE SYSTEM (1983), for example, is a brilliantly described polemical anthroQOiogy of the micro-society of American law schools, which argues that the micro-society's patterns of hierarchy reproduce and thus reinforce similarly structured patterns of
hierarchy in other social "cells". Elizabeth Mensch, Tlu Colonial OrigiM of Lilm-al l+operty
Rights, 31 BUFFALO L. REV. 635 (1982) is a study of the practical applications of ideologies of
legal property-relations at all levels of colonial New York society, from the highest and most
abstract level of general political theory, through mandarin legal doctrine, down to the most
commonplace contexts of legal/political disputes.
January 1984)
161
Studies
125
ics want to make this point convincingly, they will have to start slicing their narratives out of field-level uses of law.
.
The other argument rests, I think, on a misunderstandmg of what
he Critics mean by indeterminacy. They don't mean-although
~ometimes they sound as if they do-that there are ne~er any predictable causal relations between legal forms and anythmg els~: As
ar ed earlier in this essay, there are plenty of shor~-- a~d me :umu~stable regularities in social life, including regulantles m the mter~retation and application, in given contexts, of le_gal ~ules. La~y~rs,
. fact are constantly making predictions for t~eir chen~s on t_ e . a:?s of t'hese regularities. The C:r~tical claim of mdetermmacy IS simly that none of these regulanties are necessary consequences of the
~do tion of a given regime of rules. The rule-~ystem co_uld also have
en~rated a different set of stabilizing convention~ lea~mg to ex~?tly
~he opposite results and may' upon a shift in the direc~IOn of political
. ds , switch to those opposing conventions at any time.
w1n
v.
CoNCLUSION
As this guided tour.comes to an end, what shall_we say about the

contribution of the Critical historians? Perhaps this: that ~hey hav_e
dded powerfully to the critique of the functionalist-evolutionary Vl:ion that has so long dominated legal stu~i~ and that they ~ve ~r~
duced their own distinctive and excitmg brand of ~ctr~~
historiography and successfully taught others h~w to app y t. eir
method. The Critics are still a long way from bemg _able to de~~e~
the brightest promises of their Cri~ical p~ogram: thickly ddescn e _
accounts of how law has been imbncate? m-and has helpe _to ~tr~~
ture the most routine practices of social hfe. But they are trymg, t y
are getting there.
[5]
THE COLONIAL ORIGINS OF LIBERAL PROPERTY RIGHTS
ELIZABETH
V.
MENSCH*
INTRODUCTION
At )east since the time of Locke, the notion of a "tight" to

property has played a centr81 role in liberal political thought.
Oddly, however, g'iven the subject!s significance, seant attention
has been paid to the emergence of property rights conceptualization in early Americai1 legal history. Often commentators assume,
for example, that whext the framers o( the Gonstitution solemnly
promised to protect "property," they had in mind something with
a clear and commonly understood definition. A close examinq.tion
of colonial law, however, reveals that prior to the Revolution the
notion of property right contained within it more incoherence and
self-contradiction than clarity. Moreover, that incoherence did. not
result simply from the frontiersmen's crude disregard for common
law forms or unenlightened failure to apply rigorous legal reasoning to the task of defining property relations. Instead, the self-contradiction stemmed directly from the fact that the idea of property
in the colonies was inextricably linked to two irreconcilable visions
of social life-vis'ions which were simultaneo~ly moral, political,
and economic. Each contained its own account of the proper role of
property within the social order and its own version of the 'Source
of legitimate title. Since the struggle between thosd visions re Associate Professor of Law, Faculty of Law and Jurisprudence, State University of
New York at Buffalo. J.D., Faculty of Law and Jurisprudence, State University of New York
at Buffalo, 1976; L.LM., Harvard University, 1978.
Thanks are due, first and always, to the faculty at the, State University of New York at
Buffalo Law School-a rare instance of genuine community in an Otherwise secular world.
In particular, Jim Atleson, David Engel, Alan Freeman, Bo6 Gordon, AI Kat, Fred Konefsky, Janet Lindgren, and Jack Schlegel have been an unfailing source of help, inspiration,
advice, encouragement and information. Second, special thanks ar&also due to Morton Horwitz, who with gentle and perceptive criticism iuided the initial research for this proj~ct a"d
read the first draft; and to Duncan Kennedy, whose conversations helped give shape to. parts
of the argument. Finally, the Legal History Workshop at the University of Wisconsin Law
School, under the direction of Bob Gordon, Willard Hurst, Stanley Kutler, and Dave
Trubeck, provided a pleasant and stimulating summer during which to finish this article
and start research for a follow-up project, while also providing an invaluable oppOrtunity to
share ideas and information with other legal historians.
635
164
636
Critical
BUFFALO LAW REVIEW
mai~ed unresolved, a coherent definition of
possible.
(Vol. 31
ORIGINS OF PROPERTY RIGHTS
165
637
property was Im-
For purposes of this Articl th

been labeled hierarchy and vol~~ta o_se tw;hcompeting visions have
herent legitimacy of a securely stru:~m. d e first assumed the incal, economic, and ecclesiastical hi ureh and_ paternalistic politiera~c Y, With a corresponding
structure of semi-feudal
ordained inequality. The ~:~~:~y ~elations premised on a divinely
by proclaiming equality and fr ~Irectly :allenged that hierarchy
tion for a true republican
ee ~m as e only possible foundasettlement and use of lan::m~umtyl ~d ~l~o by regarding actual
The degree to which th s ;. ~n Y egitlmate source of title.
visions dominated colonial eAcon .lC be~ween these two alternative
.merican t ought cannot be overemphasized The stru 1 d
gious debate fnd w!~ ~iv:~am~t one another in ~olitical and relicolonialsettlers. It was withi:~h as part of the dally experience of
idea of rights began to gain "ts e co~text of that struggle that the
pie of American legal thoug~t. ascen ancy as an organizing princi.
The main Purpose of this A t 1
meaning of property rights in
~ Ic.el I~ to examme closely the
nition was especial} r b
p~ovmcia ew York, where its defironBict between th; ~e~~::c a~d closely .hound up with the
organization. As a prelimin~ ~nt ~oluntaris~ ~odels of social
that the New York exper
pom ' owever, It Is worth noting
dilemma well reco ized ~ence was representative of a conceptual
theorists. Indeed, ~uch e!.lth~i:~s~ so~hfsticated of early liberal
creation of mediating conce ~ h. a writmg was devoted to the
irreconcilability of hierarch: ~ Ic~ se~ved to mask the inevitable
modern readers of Adam SmB?th v~ uhntabrism. As one key example,
h smit
h's description ofI a "free"
mig t e struck by th e e~ ten t to
whIc
rated both contradictory models as
_market e~onomy mcorpoels carried with them contradic~ Smith r~cogmzed, those modof law and morality Smith' fi try ~sumptions about the nature
of free exchange ~d coo s ~s mo el was the voluntarist model
Smith explicitly associate~e:~~~ :all~e-e?hanci?g. barter, 1 which
member was a self-reliant prod q a ~tarlan societies where each
the participation of equal i d ucerdan ~h.ere laws were made by
' n epen ent Citizens. Only such socieI. See generally A. SMITH, AN INQUIRY INTO T
NATIONs (R. Campbell. A. Skinner & W Todd dHE NATURE AND CAUSES OF THE WEALTH or
e s. 1976).
1982)
Studies
ties, Smith maintained, were wholly consistent with the "law of nature."1 According to Smith, however, co1.1ditions of completely free
exchange and legal consensualism existed only in parts of the colonies, where ea~y availability of land made each colonist potentially
self-reliant. In other countries, "rent and profit eat up wages,"3
and free exchange is inevitably distorted by the fact that some
members of society are dependent on others.4
Nevertheless, such deviations from the purity of the voluntarist model were inevitable for the sake of promoting Smith's second model: the concentrated accumulation of capital and division
of \abor which was required for the efficient production of goods.
Because that second model was premised on the protection of inequality, it required a legal, religious, and even epistemological system characterized by hierarchical authority rather than pure consensualism, reason rather than passion, aristocracy rather than
republican equality, Anglicanism rather than radical puritanism. 11
Smith never envisioned an economy-or a legal system-premised wholly on the hierarchy which seemed implicit in
the protection of inequality. Such a hierarchy would lead to the
king's monopoly over resources and the stagnation Smith associated with crown regulation, entail and primogeniture, and the monopoly engrossment of the free market. On the other hand, Smith's
system obviously meant deviation from the model in which each
person is an economically self-reliant republican citizen and therefore a truly free bargainer. What Smith envisioned instead was a
complex interaction between hierarchy and voluntarism. Each was
denied in its static, pure form, but elements of each were incorporated into a new and dynamic middle ground.
2. See generally A. SMITH, LECTURES ON JuRisPRUDENCE (R. Meek, D. Raphael & P.
Stein eds. 1978).
3. A. SMITH, supra note 1, at bk. 4, ch. 7, pt. 2, 3.
4. /d. See also 1 K. MARX, CAPITAL 770-71 (F. Engels ed. 1967):
The labourers most distinctly decline to allow the capitalist to abstain from the
payment of the greater part of their labour. . . . What is now . . . the conse
quence of this unfortunate state of things in the colonies? A 'barbarizing ten
dency of dispersion' of producers and national wealth. The parcelling-out of the
means of production among innumerable owners, working on their own account,
annihilates, along with the centralization of capital, all the foundations. of combined labour.
5. See generally A. SMITH, THE THEORY or MoRAL SENTIMENTS (D. Raphael & A. Mac
tie eds. 1976).
6. See generally A. SMITH, supra, note 2.
(
J
166
1/
;I
I!!
'
I'
II
,,
638
BUFFALO LAW REVIEW
Critical
[Vol. 31
This incorporation of extremes within a dynamic middle

ground required a complex set of mediating devices. With respect
to the market, the key mediator was the market price, that single
figure which claimed objectivity and incorporated the effects of hierarchically imposed inequality, while at the same time reflecting
the free play of subjective values on a supply and demand market.
Similarly, theorists inserted the new notion of "self-interest" between the paternalistic authority of reason and the unpredictable
disruptiveness of passion, describing interest as the driving force in
economic and politicallife.7 Smith's own conceptual mediator (still
very crude, compared to later rights formulations) was the "natural
spectator" standard of justice. The natural spectator represented
man's natural feelings of sympathy rather than the outmoded
moral traditionalism of the scholastics and the landed aristocracy.
Therefore, he could be trusted to disapprove entailed estates and
primogeniture, preferring instead that land be on the open market.
On the other hand, the naturally sympathetic impulses of the spectator would be restrained by reason. They would not, for instance,
favor leveling or impulsive benevolence. To those who were poor,
for example, the natural spectator would explain that the protection of inequality, while it resulted in the inescapable poverty of
many, "tended most to the prosperity and order of the whole,
which we ourselves, if we were wise and equitable, ought most of
all to desire. " 8
7. See A. HIRSCHMAN, THE PASSIONS AND THE INTERESTS 43-44 (1977).
8. A. SMITH, supra note 5, at 274-75. The central role of property as mediator was recognized quite early by David Hume, who elaborated more fully than Smith its moral and
epistemological implications. Hume started by postulating a system of subjective values and
"bottom up" epistemology. He stated that reason is, and ought to be, the slave of the passions. See generally D. HUME, AN ENQUIRY CONCERNING HUMAN UNDERSTANDING (C.W.
Hendel ed. 1965). His system was premised on a dramatic ethical relativity; morals were, in
effect, no more than shifting values on a supply and demand marketplace. Hume shrewdly
recognized two points, however. If ethical hierarchies were really collapsed into this complete sea of relativity, then the legal authority built around secured property ownership
would have no logical foundation. Moreover, he recognized, perhaps more clearly than did
Smith, that the logic of completely free exchange could lead in the direction of redistribution: given the marginal utility of the dollar, which he assumed, then real exchange equilibrium (as we now say) meant equality. In tum, Hume associated the movement in this direction with sectarian religion, republicanism, and law as consensualism; and he even admitted
that Sparta and Rome under agrarian laws had been said to benefit from the broad republican distribution of property which accompanied a broad distribution of political power. D.
HuME, AN ENQUIRY CoNCERNING THE PRINCIPLES or MoRALS, in HuME's ETHICAL WRITINGS
44 (A. Macintyre ed. 1965).
167
Studies
1982]
639
to appear
Not tons sueh as the "natural spectator" were bound
tual pclumsy. Part of the genius of liberal theo~ lay m Its eve~ m~st
peal to legal forms as key conceptual ~edtatofrs.
~~ve '~right"
al of these legal forms was the notion o an o ~ec 1
centr
t
hich concealed the fact that decisions about property
tolaptr~per y, wmeVI"tably moral and social choices. This supposed
t" ed
al conre Ions are
.
apolitical objectivity masked the reality of. con mu mor
o
O:e
flict. The purpose of this Article is to examine the emergence of the

notion of an objective right to.propert~wi~ht t~e ct:~~o~~;;~
::~~:~yS:~!~~~o~:~~~~;~-~hen~~:g~on~ct t~:t::~
competing world views was parttcularly mtense.
urmg
.
.
.
H e introduced into his description of law a
To counteract that theoretical d1~ecton, um
b th tandard of ultimate, reahi "J tice"
h 11 art.fi ial virtue "J"ustice,'' which was to be knoym y e s
w o Y 1 c
'
ed Tt f rivate property owners p.
us
'
U~l yN:~ly, the old epistemological hierarchies
soned utility-specificall_y, the reason
Hume announced unequivocally, was prope y.
rting its authority over the natural
were restructured, with artificial reason once agam asse
passions.
Th"
w hierarchy of reasoned utility was to
Hume's point was more subtle, however.
IS ne
1 to
h so high as to include
reach no higher than utility itself-it was -~ot, fo~, ::mp ~ ru:~~ wijh a view to public
outdated ethical constraints. Morals, he 881 .' mus. the;;: moral concerns into contract law.
bined with a more "immeinterest and he criticized the schoolmen for ~mposmg.
. ul . te" ti"l"t
f property protection was com
Moreover, this " tima
u 1 Y0
was needed in a changing market.

diate" utility, which allowed ~or_the_ flenblh:: w~ch rtant distinction between the general
ntrol or, particularly, levelling)
Directly paralleling that diBtmc:tlon was .e Jmpo
legal principle of property protection (as agamst crown co
and specific legal rules:
. of a separation [non-commu[W]e must ever disting~ish ~tween th~ necess~t~ rules which assign particunalism] and cons~cy m mans possThessfirsonst~:aaitye is ob~ious strong and invine
.
b . cts to particular persons.
1
ar o ~e
more light and fnvo1ous...
cible:
the latter may depend on a pubrIC utTty
I I
Id. at 146 n.3.

. ed th t th same capitalism which required the
Indeed, Hume seems to have recognlz
a
e
fi te definition, whose meaning
1
0
protection of "property" also req~ired that it be a ;;:rd ~::n: could affirm the "inviolable"
would change with every change m the econo~y.
any one scruple, in extraordinature of private property and at the ~e time asrt. f "ndividuals and sacrifice to public
all
d to the pr1vate prope Y o
h
_regar
. ed ~ th sake of that interest? . . . All ot er
nary cases, to v1o1ate
interest a distinction which had been ~~bl_IB~ :{ an~ dependent on it." !d. at 48.
demanded by some immediparticular laws are subordinate to (pu IC m res '
Similarly, Hume admitted that, except where chang:S ~e;rtant. Many were based only
ate utility, the actual content of specific .n;_~es ; : r~:e= Id at 125. The important point
on the "taste and imagination" charactens IC o
e h" h . ~ized the bounds defined by
was that these rules were all wit~in a legal sdysteu:..wh IC ro~ private ownership of prop"ultimate" utility-the bounds, m other w?r s, w IC p
erty from the "immediate utility" of levelhtengh. to of property relations in colonial New
9. This is not meant to be a comp e
IS ry
;::.Does
168
640
BUFFALO LAW REVIEW
Critical
[Vol. 31
period when Smith was attempting to resolve the conflict between

contradictory economic and moral models on an abstract and theoretical level, New Yorkers were experiencing that conflict as part of
the reality, sometimes violent, of their daily lives.
Section I of this Article will focus on the competing models
central to the attempts to conceptualize property-title by occupancy and title as derived from a hierarchically situated sovereign.
Those models represented in New York the basic conflict between
hierarchy and voluntarism, which was still, simultaneously, a conflict about law, religion, politics, and economics.
Section II will show how those competing models were incorporated into the policy of a very real sovereign-the crown-still
perceived as embodying the union of virtue and authority. Because
crown policies during this period simultaneously affirmed the
claims of both voluntarism and hierarchy, they contributed to the
unintelligibility of property as a concept.
Finally, Section III will focus on specific legal disputes of the
period, drawing on the papers of John Tabor Kempe, who served
both as attorney general of New York and as counsel for private
land claimants. The duality of his role often placed Kempe on opposite sides of the basic conceptual struggle, and, like other colonial lawyers, he was pressed to formulate a legal definition of property "right" which could serve as a mediator in those struggles and
avoid the most extreme implications of either model.
York. Some of the most useful books on colonial New York history include: P. BoNOMI, A
FACTious PEOPLE: PoLITics AND SOCIETY IN CoLONIAL NEw YoRI{ (1971); E. COUNTRYMAN, A
PEOPLE IN REVOLUTION; THE AMERICAN RVOLlrl"ION AND POLITICAL SOCIETY IN NEW YORI{,
1760-1790 (1981); D. DILLON, ThE NEW YORI{ TRIUMVIRATE; A STUDY OF THE LEGAL AND
POLITICAL CAREERS OF WILLIAM LIVINGSTON, JOHN MORIN SCOTT, AND WILLIAM SMITH, JR.
(1949); M. KAMMEN, COLONIAL NEw YoRK: A HISTORY (1975); S. KIM, LANDLORD AND TENANT
IN CoLoNIAL NEw YoR!I;: MANORIAL SociETY, 1664-1775 (1978); D. LoVEJoY, THE GLoRious
REVOLlrl"ION IN AMERICA (1972); I. MARl{, AGRARIAN CoNFLICTS IN CoLONIAL NEw YoRI{ 17111775 (1940); J. REicH, LEISLER's REBELLION: A STUDY or DEMOCRACY IN NEw You 1669-1720
(1953); G. SMITH, RELIGION AND TRADE IN NEW NETHERLAND (1973); THE POLITICS OF DIVERSITY: EssAYs IN THE HISTORY OF COLONIAL NEw YORK (M. Klein ed. 1974).
My interpretation is based largely on a reading of: 1-4 THE DocuuNTARY HISTORY OF
THE STATE or Nw YORK (E. O'Callaghan ed. 1849-1851) {hereinafter cited as Doc. HIST.]; 114 DOCUMENTS RELATIVE TO THE COLONIAL HISTORY OF THE STATE OF NEW YORK (E.
O'Callaghan & B. Fernow eds. 1853-1887) {hereinafter cited as CoL. Docs.]; 1-6 NEw YoRK
STATE, ECCLESIASTICAL RECORDS OF THE STATE OP NEw YORK (1901-1905) {hereinafter cited
as EccL. REcs.]; and the Papers of John Tabor Kempe, New York Historical Society. My
interpretation is consistent with Countryman's more thoroughly researched work, but not
with Kim's.
1982]
I.
169
Studies
641
THE Two MoDELs: VoLUNTARISM AND HIERARCHY
.
h"1
ews aper articles of Gordon and
The d hberal
g ~m Eng
P 1and d urmg
the 1720s' soon befi t W
blished
d En lish political and economic theory
Trenchar , rs ~u
g
odel for the Independent
came the most Widely rea
in the colonies. They also formedi:~:% the 1750s by New Yo~k's
Reflector, a popular newspapb~rt.wr oung lawyers William Smtth,
,
.
d . "t . virate" of am 1 Ious y
lea mg rm~
d William Livingston. The Reflector mJr., John Morm Scott, anth
t advanced liberal thought of the
troduced New Yorkers ~ .elm?:. ns learned about the commerperiod; in its pages provmcta Cl ~~ nge on an open market, and
cial wonders wrought by fdree ~xc t ~he ever-imminent violation of
were warned to stand guar agau:s
their newly conceived ~ivil lib~tles.terized by the hearty, optimisEarly Whig rhetoric was c arac nal sis to elude precise defitic use of w?rds which te~dleld, ~ponfaromy G~rdon and Trenchard:
r Typical was the 10 owmg,
I d
m ton.
.
. h Efi t of Independency, and n epen" And as Happmess lS t e
ec
p
ert is the Effect of
dency is the Effect of Property; so ce";~ tr;:~ La~s of Liberty."lo
would have disLiberty alone, and can only be s~cure y
Presumably, few liberals ~n t~e::!~~::;::~~~y, property, libdoubted the Gordon-Trenchard
puted the happy connedctlhon h
"d d the conditions
erty and law, nor woul t ey ave
,
. th t those elements in turn provi e
assumption ~
"al development.u Nevertheless, ocnecessary for VIgorous commerc~
.ous elements of "liberty"
casional attempts to define
e vii?
ther than clarity.
tended toward co~fusion a~d cot~~:Sd~~t~~: ;~dependent Refiect~r
For exampl?, m 1753 tye :~ers the meaning and origin of their
set out to explam to New. o t their account (drawn somewhat
right to prope~ty. ~ceo~~~! t~eorists), before civilization, "eveiy
vaguely from t e na ura
h
d "1:& This "Use" led to
Man might take to his Use what e p1ease .
No. 1
28 (Wilkins, Walthoe, Wood10 J TRENCHARD & T. GoRDoN, 1-4 CATO 's LETTERS
f
"ted as CATo's ...,,.,.,.ES
ward & Peele eds. 1724) [herema ter Cl I ed - "free" countries, "{m]en bring out theu
11. As Gordon and Trenchard ; : arand ~ink of all waYs to employ it for their Intert,
d . ented new Trades searched after, new
money for their Use, Pleasure, and p
est and Advantage, New Projects are every ay mv
Manufactures set up. " I d. a~ ~ :. trate's Interfering in Matters of Religion, Pt. 2

12 The Absurd1ty of the CzVI
agzs
W S
Ja. & J ScOTT THE INDEPENDENT
No. XXXVII, Aug. 9, 1753, in W.
MoRE PARTICULARLY
REFLECTOR; OR, WEEKLY ESSAYS ON UNDR(~ Klein ed. 1963) (emphasis deleted) {hereinADAPTED TO THE PROVINCE OF NEW yORK 313
.
LIVIN~STON, ~~~::~T SuBJ~CTs
170
642
BUFFALO LAW REVIEW
[Vol. 31
an origin~} and natural right derived directly from occupancy and
l~bor. Clai~s based on use alone, however, led inevitably to insecurity and"d.Isorde,~. Therefo~e, under the social contract designed to
protect . h~?rty by ~efinmg property relations, all property was
necessari.ly .c~~tered I~ the supreme Head," 13 or sovereign. Thus,
~o man m CIVIbzed society could assume to himself a naturaiuse

rig?t without "breaking in upon the Rights of his Sovereign,"H
which had wholly superseded natural rights. Yet, the triumvirate
also commented, when rights were thus centered in sovereigz}ty,
they seemed always dangerously subject to the "wild and stormy
Ad~inistration" 11 of political power. In New York, that administration meant crown rule, which, to provincial property holders,
s~eme~ always to be on the verge of violating, not protecting, colomal "bberty.me
r:r:he tri~virate's somewhat unsatisfactory discussion of property rights did not stem from a failure to keep abreast of current
legal theory. Indeed, in his great Commentaries on the Law of
England, enormously popular among New York lawyers when it
was published two decades later, Blackstone offered an account of
property which was virtually identical to the triumvirate's. 17 Blackstone, too, located the origin of property in the Lockean natural
and "robust" t~tle by ~cupancy. To avoid the disorder caused by
constant asse~10n of this "robust" title, however, the use right had
been necessarlly superseded by the feudal fiction that the king was
the foun.tain of all property, so that all lands were "therefore
holden either mediately or immediately, of the crown."18 Between
t~10s~. two. extremes was structured the whole "hierarchy of actions which defined property relations in England.1e
after cited as INDEPENDENT REFLECTOR].
13. ld.
14. ld.
~!:
17.
1907).
171
JJ. Elections, and Election-Jobbers, No. XXXII, July 5, 1753, in id. at 283.
2 W. BLACKSTONE, COMMENTARlES ON THE LAws OF ENGLAND 1-15 (W D Le ed
. WIS
18. ld. at sa. See also D. Kennedy, The Structure of Blackstone's Commentaries 28
B UFFALO L. REv. 209, 332 (1979).
'
19. See generally 2 F. PoLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAw 1-I83
(~nd ed. 1898). At the "top," so to speak, was the writ of right, which protected a pu;e right
0
property unconnected to any possessory claim (the claim was not that one was seized but
that o~e sho~ld have been seized); lower in' the hierarchy were all the possessory writs, 'with
the Mit of eJectment close to the bottom. That lower writ was the one most often used in
1982]
643
Despite his insistence upon the conceptual importan~ .o~ centering property in the crown, Blackst;one was careful to cn~tctze all
actual remnants of the feudal tenurial system as opp~esstve, and
decidedly inconsistent with ancient English liberties.S0 In contrast,
the natural ~d "robust" title by occ1,1pancy was indirectly retained
even within the hierarchy of writs, incorporated through the prescriptive notion behind th~ statutes of limitations,11 which, at least
indirectly, allowed for title based on use.
Thus the tension between the "natural" and the feudal conception of property was obscured rather than resolved by Blackstone's lengthy description of the still largely J?rocedural. ca~es of
action which made up English land law. Unlike the tnumvtrate,
however,' Blackstone seemed singularly untroubled by the lack of
resolution evident in his account. He could afford co~placency because, as he commented, the English people were g~ner~y.content
with legal decisions as to title and chose not to mqurre mto the
"original and foundation of this right."11 Moreover, any number .of
delicate questions about ultimate right could be comforta~ly Ignored simply by ensuring that sovereign power be located m parliament, where consent was exercised ohly by those. with prope~y.
As Gordon and Trenchard had earlier observed, Wtth that parhamentary protection, property would be neither "barbrously rob~ed
and engrossed"18 by the crown, nor ravished by a leveling
n1ajority.1 '
That political solution, so conveniently achteved Within the
English parliament, was unavailable to the powerf~ leader~ of ~he
provincial New York bar. Unlike Blackstone, they lived daily Wlth
the direct exercise of crown control over both land use ~d trade.
On the other hand, provincial leaders were also faced ~~h the social reality of leveling republicanism in the form of pohtically u~
ruly provincial townships; and those tOwnships often asserted the~
claims to land and title in the vocabulary of occupancy and use.
New york by owners against wrongful occupiers because of its procedural advantages. However, it was still a trespass action in form, originally brough~ by one who held only for a
term of years and had been wrongfully turned out of possession.
20. 2 BLACKSTONE, supra note 17, at 76.
21. Id. at 266 n.7 (editor's note).
22. ld. at 2.
23. CATO's LETI'ERS, supra note 10, No. 330.
24. ld.
..
d
" hen
25. As will become clear from the description that follows, occupancy an use, w
172
644
173
BUFFALO LAW REVIEW
[Vol. 31
In the land disputes which erupted into violence after the midcentury, therefore, liberal lawyers were pressed to formulate a definition of property which avoided both of the extremes they feared:
property as the direct extension of royal prerogative authority and
property as an extension of the all-too-robust will of an independent republican people. Gordon and Trenchard (among others)
had taught them that both extremes were to be avoided-each, in
some clear sense, was alien to the "laws of liberty"18 and therefore
destructive of both happiness and commerce. Yet the easy rhetoric
of "liberty" provided no clear indication of exactly where or how
the doctrinal line was tO be drawn.
The eighteenth century legal task was not made easier by the
fact that conflicting conceptions of property in New York were
closely identified with two conflicting theories of economic development, and even the most astute provincial leaders found themselves believing in both of those theories simultaneously. On the
o_ne hand there was much talk about the voluntary effort, initiative, and industrious self-reliance required if settlers were ever to
cultivate the vast New York wilderness. Provincial leaders had a
great fondness for the image of the hearty republican farmer cutting his way through the dense New York forest; his was the independent spirit which turned untamed wilderness into settled farmland. Yet the same self-reliant spirit which led to rapid settlement
seemed at odds with another assumed requirement for development-the secured concentration of resources and accumulation of
capital which would allow for a productive work force and investment in new enterprises. Thus, the pleasing image of the independent farmer was countered by the equally pleasing, but contradictory, image of an organized (dependent) work force efficiently
transforming provincial resources into capital for new commercial
ventures. Discussion of that dilemma filled letters, reports to England, and provincial newspapers. The same dilemma was also lodg~d deep at the core of the provincial definition of property, where
It was expressed specifically in the vocabulary of title by occupancy
actually asserted, bore little resemblance to the highly individualistic conception described
by Locke and repeated by Blackstone. Whereas Locke seemed to envision a single person
staking out a private claim in the wilderness, the occupancy and use argument was more
typically asserted by whole townships on behalf of a complex collective vision about the role
of property in community and religious life.
26. CATO's LE"M'ERS, supra note 10, No. 68.
1982]
645
versus title by grant from the crown: the ~t was as~erted as a

(voluntarist) expression of republican self-rehan~e, while th? second was conceived as necessary for the (hierarchical) protectiOn of
concentrated wealth.
.
.
Thus, the dilemma of economic development m the e1g?teen~h
century incorporated by reference the two basic ~odels which ~t1ll
d ted colonial thought-voluntarism and hterarchy. lneVlf:ab~;~~~se models were religious and political as well as econom1c.
Fo; a time, sophisticated provincial leaders be~e fond of an. that New York was dominated by self-mterest,
nouncmg
not
d dmoto
rality unlike Massachusetts Bay, New York was never mten e
be a ~'City upon a Hill."*' Nevertheless, just as ~e moral paradoxes of Massachusetts Bay led to comp~ex ~uestzons. about the
distribution of property, so too the economic ~llemma diScusse~ by
New Yorkers merged with questions of morality. Interest and tdeology, so to speak, were indistinguishable.
. .
. .
N Yorkers tended to associate the first VISion of social hfe,
that o:;ure voluntarism, ~th Ne~ ~gland\ religious dissent, and
radical, leveling republicaniSm. Withm that model, prope~y was
distributed equally to both protect and ~xpress the free Will
fully participatory congregation/townshtp. T_h~ local re~ubli
community, the source of all moral and pohtical author1ty,_ w~
conceived as the source of all property as well. In contras7 Within
the second model authority descended from God to the king, an~
from there ever downward through the levels of a carefully ?r~ere
and essentially static social hierarchy. The ~oal, c~acteriSti~Y
Anglican, was to achieve a single, all-embracmg relig~_ous ~d po!ltical harmony which would reflect, as nearly as possible m an 1mperfect world, the harmony of the Heavenly City..T~at goal could
be obtained only by each person's pea~eful submts~10n to the .assumed reasonableness of divinely ordruned a~~or~ty. Otherwise,
social order would dissolve into the chaos o~ ~1V1l d1scord and u~d
leashed private passion, and a peaceful relig1ous ha;mony wou
fragment into the absurdity of a multitude of separatist sects, each
?:a:
.. ,
ht to romote the Proeperity of his Country, from a sub27"
Tis true, ~very. Man oug
But it ia extremely difficult, for the best of Men,
limer Motive than h1s private Advantag ,. Publ" Virtue to be distinguished by public
to divest themselves of Self-Interest. -
'c
d"
10
of the
H
. The Selling of Offices, which requirea Skill and Confidence, a uma men 12 t
D~~::~~n of a State, No. IX, Jan. 25, 1753, in INDEPENDENT Rul.ECTOR, supra note a
111.
174
Critical
646
BUFFALO LAW REVIEW
[Vol. 31
arrogantly asserting its

.
.
that hierarchical model ~: rarbcularh version of truth. Within
mg, a~ t de top of the divinely ordained worldly hierarchy
s conceive as the fountain of both
justice and property. '
:a
("bo!:~~~.. ~:~= .~:p0~;iou~.1i1fefences
between the models

universal order evangelical wn, . oca and particular will versus
passion versus authoritative reason
and so on) both' sh d
. .
'
'
are an assumed un"t f I
and economics. No liberal wed e h d I ybo ~w. religiOn, politics,
tue and authority law and ft a yet een dnven between virIn New York' the vol :~ Ics, state and civil society.
ma~d within the Long Isl~:d ~~mod~! ~a~ most clearly approxis~e e y early Dutch Calvinist immigrants or separatists f
land was often distributed in l;~m . ew England. In these towns,
based on family size and abTt ~uc\were roughly equal or else
family's land proved to b I; y
cu ti~ate.z" In cases where a
might be added but all ~ 0 poor quality, an additional share
1
ment. Absentee 'landowni:g le~e: rs:~d on condition of settleunimproved land could be voided aoo~heitureal,and contracts to sell
e go was that all should
28. A much fuller elaboration of these

ORDER AND LAw: A STUDY IN PRE-REVOL
models can be found in D. LJTrLE, RELIGION
ous description of the difference in worl~:::;:~NGLAND (1_969), which provides a marvel~
~ee also E. TROELTSCH, THE SOCIAL TEAcH
ween Anghcans and Puritans in England.
Important diatinction between church-t
I~G OP THE CHR~STI~N CHURCH (1931), for hia
~paratist .dis~nction. Weber was influ::nb ~-type, ~hie? IS essentially the AnglicanIsm to capitaliSm. I think Weber's anal . . y oeltsch m hiS attempt to relate Puritanwithin capitalism between accumulatl"o y&ISdlSf:weakened by a failure to explain the tension
n an
. versus "free"
compe t"t"
al .ree exchange an d concentration
1 1on. I n applying Weber to
tween sectarian Puritanism and th anchanall y&ls of England, Little emphasizes the link be

e
enge to estabr h d
econ?mlc pnvdeges. Implicitly, however th t

ls IS e monopobes and aristocratic
conVInced that, at least in New York fr a w: a o a challenge to all inequality. I am
ex~ressed by the most sectarian com~un~~eexc an?e an~ an~i-monopoly sentiments were
qmte notable-but the thrust was I
s-:-durmg Lelsler s rebellion the connection is
power.
a ways agamst all unequal distribution of wealth
d
Th"
an
. e Importance of the republican traditio
studJes, for example, J.G.A. Pocock Th n h~ rece~tly been stressed in a number of
Thought and the Atlantic Republica~ T ~-~achJavelhan Moment: Florentine Political
Modern Political Thought, (1978); G
~~: (197~); Q. Skinner, The Foundations of
1787 (1972). See also T. Schroyer C~lt
l's 1Cre.atJon of the American Republic, 1776
ura urp us m America, 26 NEw GERMAN CRITIQUE
81 ~82).
wO:
ism .. One r~port describes lot numbers being distributed b

.
. Y a child, to ensure no favoritor mequa!Jty. At a Special Court at Town H ll
Docs., supra note 9, at 449.
e a at Kmgston, Apr. 5-6, 1760, in 13 CoL.
30. See generally The beginning and
HJST., supra note 9, at 635.
progress of New Utrecht, Feb. 23, 1660, in 1 Doc.
1982]
175
Studies
647
be "supplied with good and valuable lands to give each man as

content as near may be,"31 but that none should use land for
purely speculative profit81 or to gain power over others.
That township model seems to have implied a complex (and at
times difficult) combination of individualism and community. The
often-repeated desire of township settlers was to labor only for the
sake of themselves and their posterity.S3 As one Long Island petition for township land stated, the petitioners had previously "hired
land of others"84 but now wanted to "settle ourselves whilst we be
in our strength to goe through our labour."11 Otherwise, they said,
they could make "no provision for their agge and families."" This
independent spirit continued until the Revolution. As Colden
wrote to the Lords of Trade in 1761, it explained why farmers preferred independent land ownership, even on stiff mortgage terms,
to tenancy. They wanted "to bestow their labour where they think
their posterity shall enjoy the benefit of it, rather than on lands,
the property of others, however low the rent may be in proportion
to the value of the lands. " 81
That preference, however, was not necessarily individualistic
in the liberal sense. In other words, the desire to use one's labor for
one's own benefit did not lead to a firm private/public line as be31. A Commission to Captain Dudley Lovelace and others, Mar. 24, 1669, in 13 CoL.
32. Stuyvesant, the first governor of New York, vigorously supported absentee landlord
regulations, agreeing that nobody should "seek for pay or profit in such manner as to retard
Cultivation." The beginning and progress of New Utrecht, Feb. 23, 1660, in 1 Doc. HIST.,
supra note 9, at 636. That policy was to be achieved by insuring that "everyone of what
condition or quality 'soever he may be should cultivate, build and live on the lot he had
obtained ..." on penalty of forfeiture. Id. Similarly, as to contracts for the sale of land,
sellers should restore anything over "the true value of his [seller's] fencing, and what he has
expended in his cultivation of his lot, including the value of his own labour." Id. However,
Stuyvesant did not contemplate a prohibition on servant labor or tenancy.
33. Letter from President Colden to the Lords of Trade, May 15, 1761, in 7 CoL. Docs.,
supra note 9, at 465.

34. Petition of the Settlers of Jamaica, New York for Land on Long Island and Leave
to Settle a Town (undated), in 14 CoL. Docs., supra note 9, at 456.
35. ld.
36. Id. Similarly, the New Englanders who settled Jamaica petitioned for land by explaining they were "desirous to [provide] for their posterities, so as their outward comfortable subsistence and their soulles welfare might in the case of suitable means . . . be attained." Letter from Mathew Gilbert to the.JJirector General, Nov. 8, 1661, in 13 CoL.
37. Letter from President Colden to the Lords of Trade, May 15, 1761, in 7 CoL. Docs.,
176
648
BUFFALO LAW REVIEW
[Vol. 31
tween inhabitants and town community. Indeed, land in townships

was. held on .the condition that owners contribute to community
proJects-mamtenance of common pastures, road building, and
even construction of grain mills. 88 This held true even if community purpose included grants to new inhabitants. A case illustrating
that point arose in 1653, in the village of Middleburgh, Long Island. John Gray, defendant, was moved to "insolence and disobedience"88 when asked to forfeit part of his land after the community (apparently by vote of town meeting) invited new inhabitants
from the north. Later he admitted that the disobedience for which
he was imprisone~, was. the result of an "ungovernabie passion,
roused by . . . [hiS] behef that the land belonged to him absolutely, by virtue of patent and conveyance, therefore he had a right
to defend and protect it. "'0 He was brought by the magistrates to
understand that the land was "granted to the village in common"u
and held only on the condition that the owners would when required, "surrender the patents, they had received, and i~ the interest of the community assert no claims of more right and title in the
lands, covered by the patents, than other inhabitants, if more people s~ould come to the village...."u Like his neighbors, Gray was
requx:ed to surrender his patent for the readjustment necessary for
equahty. He was then ordered to ask God, with "uncovered head
and bent knees to forgive him"'8 for his defense of absolute individual ownership."
Despite this (sometimes forced) communitarianism a firm
public/private line seems to have been drawn for the sake ~f negating and excluding inappropriate assertions of private interest. One
could not derive purely private advantage from the community labor of others. The "property" that was to be protected, in other
words, was not abstract ownership, but the willing (even if public)
use of one's labor. Thus, for example, riots broke out in the town
38. See, e.g., The beginning and progress of New Utrecht, Feb. 23, 1660, in 1 Doc.
39. In re John Gray, Charge of the Fiscal, Aug. 17, 1654, in 14 CoL. Docs., supra note
9, at 285.
. 40. Sentance of John Gray by the Director-General Peter Stuyvesant, Aug. 17, 1654,
m 14 CoL. Docs., supra note 9, at 286.
41. Jd.
42. ld. at 286-87.
43. Id. at 287.
44. Jd.
HIST.,
177
1982]
649
of New Castle when magistrates ordered the i~habitants. to help

repair not only a general cartway, but also a ~1ke bel?n?mg ~ a
Mr. Hans Block.'11 Block had requested the m~1strates rud, claiming his dike helped prevent flooding on ~ pubbc footpa\h ~d WB;B
therefore "necessary and convenient"'6 for the ~wn. The inhabitants willingly agreed to build a road and footbridge! and even to
"
the n1ke
wi"th a sufficient sluyce to drame the water
secure

h d "k
outt."'" They would not, however, make further reprurs o_n t e I e
. h they called "not a publique butt a privett Conor flyer, wh IC
d b " 1
.
""
As
they declared, they would
,,. not be force to e s aves
cerne
to Hans Block's particular Interest.
.
_ .
Given the close link between property and soverei?Dt!, I~ IS
to find that the township model of land distribution
not surpnsmg
to
was closely associated with the most direct forms of participa ry
democracy. In early East Hampton, for ex~ple, where lots w~r.e
distributed equally, laws were also enacted duectly by all the citizens assembled at town meeting (called the General Court), ~d
fines were issued for failure to appear.110 Every year ~~ee magistrates were elected to administer laws, but any deciSion by the
magistrates could be appealed to the General Court. In_ an early
history of the town it is reported that these town !!!~etmg~ w~re
frequent and "became burdensome on the people,
for bemg
their own lawmakers they made a multiplicity of ~~~s. for regulat~
ing: the fences to fields pasture~ in comm~n; for diVISIOn of. lands,
making highways; building a mill or meetm_g ?.ouse and th~ took
t 1"me.naz Nevertheless this burdensome freeup much of theu
.
dom to make laws, and especially to try dispu~ by town meeti~g,
was often referred to in petitions as a condition to town sett e45 Petition from the Inhabitants of the District of New Castle Re;;tive to ~a;ing
Two Dikes or Highways Through the Marsh Belonging to Mr. Carr to overnor n ros,
J
1675 12 CoL Docs supra note 9, at 532.
une,
'm I
W. .11. .,T
Clerk of the Court at New Castle to Governor Andros,
46. Letter rom 1 1am om,
June 8 1675 in 12 CoL. Docs., supra note 9, at 535.
.
.
47 ' Peti;ion from the Inhabitants of the District of New Castle Re;;twe to ~a;mg
Two Dikes or Highways Through the Marsh Belonging to Mr. Carr to overnor n ros,
June, 1675, in 12 CoL. Docs., supra note 9, at 532.
48. Id.
~: ~:e John Gardner's Notes and Observations on the Town of East Hampton, Long
Island, Apr. 1798, in 1 CoL. Docs., supra note 9, at 680.
51. /d. at 680-81.
52. Id.
178
Critical
650
BUFFALO LAW REVIEW
[Vol. 31
~ent. This was the. cherished "[l]iberty for the judging of such
difaran~es ~ may [m] any way hapin amongst as to give a final

determmation thereof. . . ."68
This equalitari~ republicanism was, more often than not, also
related to separatism or sectarian enthusiasm. In 'the petition
quoted above, for example, the township founders stipulated that
they ~ere to have "[l]iberty in point of worship"M and th
"[c]h01~e of o_ur owne Ministar and that nothing may be impose~
upon him which may be ofensive unto his Conshence."66 Thi d"d
no~ reflect a de~ire for a civil libertarianism, but for a cohesiv: se~
tarian commu~Ity; the "enlargement of the Kingdom of Christ in
the.Congregation~ way and all other means of Comfort in subordination t~ereunto,' as another petition stated.88
A;t Important tract by John Leydt, a radical Dutch churchman, !llus,~rates the. connection between political' and religious volun~Ism. Leydt duectly challenged the conservative tenets of the
Angh~an and ~utch Churches. Conservative Dutch ministers in
~erica had, hke the Anglicans, always maintained that the mysterlO~S proces~ of redemption was a wholly private and invisible
expe~Ience, With~ut social or political significance. That private
and mward experience, they insisted, was to be carefully separated
from t~e world of external action, where peace and harmony could
be . achie~ed only through submission to a hierarchial structure
~hi~h ultimately linked both church and state. Otherwise, the rad~calimpul~~ to realize here on earth the perfect community of "vis~ble samts could lead to a rejection of all law and earthly authorIty a~ ?~necessary and irrelevant.68 Those who had experienced the
possibility of an unmediated and regenerate relationship with God
and the human community were bound to find that all fixed formal structures (legal, political, or intellectual) were oppressiv~ and
D 53. Petition for a grant of 4000 acres of 1and abot'e and below the fall on the
1
M:;~~rtin~iti:
~~ecfriv~ege of liberty of worship, calling a minister, holding court, etc.,
some "mat~rs"
IOdL. ocsth., suCpra note 9, at 521-22. Here the petitioner recognized that
wou go to e ourt of Assizes.
54. /d. at 522.

55. /d.
56. Letter from Mathew Gilbert to the Director-General Nov 8 166I 13 C

m
OL.
tio!7w.;h LE~, Tru~Liberty the ":'ay to Peace: or an Account to Show how the Negotia
1 a
lew to eace and Umty were Broken Off, and What Retarded the Happy
C
or;::.m~:.on, Aug. 10, 1760, in V EccL. REcs., supra note 9, at 3762-92.
1982]
179
Studies
651
illegitimate. According to the Anglicans, the inevitable result of

such impatience was a frightening social chaos.
During the 1750s John Leydt directly assaulted those traditional assumptions by heading his argument with the startling. title
"True Liberty the Way to Peace." 6' Like the conservatives, Leydt
stressed the importance of peace and harmony in household,
church and state. He insisted, however, that peace could not be
imposed from above, but must be founded on "proper conditions,"
which meant that it must be "wrought by the Spirit of Peace in
the heart,"80 which in turn produces "reconciliation," or unity,
1
with both God and the human community.'
Leydt's definition of peace through individual reconciliation
implied that only reconciled individuals, gathered together in the
"true communion" of love, could establish laws consistent with
8
"true peace"82 and the "Fundamental Law of Christ.'" Since justice was thus conceived as following from the hearts of a loving
people, not as a standard to be imposed by authority, just laws
could best be determined by participatory democracy at the local
level. This "liberty" in the introduction of laws "as each locality
shall require,"" constituted "the yery distinction between the pious laws of the congregation and the tyrannical commandments of
the Pope. " 86 That radical religious conception of law paralleled the
59. /d.
60. ld. at 3764.
61. ld. at 3764-65.
62. ld. at 3764.
63. ld. at 3775.
64. Id.
65. Id. at 3763-87. Leydt was one of a group of Dutch churchmen who caused no end of
trouble to the established Dutch church in New York (which shared with the Anglicans the
distinct privilege of incorporation), and to the classis in Holland, their ecclesiastical overseer. Leydt eventually led the widespread opposition to the established church. Both he and
Reverend Goetschius, another influential radical, were students of Reverend Frelinghuysen,
minister of the Raritan Valley church, who from the time of his arrival antagonized even
members of his own congregation by insisting upon separating out the visibly elect from the
unregenerate. Moreover, he demonstrated an outrageous tendency to find that the true
saints were more likely to be found among the "crushed, lowly, broken in heart ... The
wretched and needy" than among the prosperous landowners of the Raritan community.
J.R. TANIS, DUTCH CALVINISTIC PIETISM IN THE MIDDLE COLONIES 118 (1967).
In many ways Frelinghuysen was the New York counterpart of Jonathan Edwards in
New England. See generally P. MILLER, JoNATHAN EDWARDS (1948). Through Frelinghuysen,
the Great Awakening arrived early in New York, and arrived there first among the Dutch,
who then frequently invited English-speaking New Light ministers from outside the colony
to speak in their churches (the influential Whitefield from England, for example). For an
180
652
Critical
BUFFALO LAW REVIEW
[Vol. 31
republican conception of pro rt Th . . .

on the land, like the indivi::aly.
e. IndiVIdual's willi~g labor
something to be valued prote ted experience of redemption, was
over, that protection e~han ~ t;:nd encouraged. Ideally, morepublic labor and communityce artr~ . er. than destroyed a spirit of
P ICipation.
There were many variations o
h t Ih
an abstract model-Long Island n ~ a h ave here described as
more inequality of land ownersh .re~~r s s ow some to~ships with
tation, more extensive political I~uth:i~th~rs, less. rebgious orienY. Y magi~trates, and so
on. Nevertheless, when New y
communities dangerously infiu~::~; ~escribed leveling r~publican
they clearly meant that c
. . Y New England dissenters,
roughly equal distribution o~~:~att~~
;elf-gov~rnment and
Long Island. Moreover that s ste w. tc . c aracterized much of
of individual initiativ; and y m, ~th Its complex combination
commumty cooperat
.
many ways ideally suited to
.
.
ton, seemed m
possible to trace a continuo!r~mo~ rapid cultivation. Indeed, it is
0
favoring the Long Island model ~e crown and P~ovincial rhetoric
the West India Company' . . ;: purely economic reasons-from
became Governor of New ;:n~s. nee that P~ter Stuyvesant (who
1
16
political restraints on Long ~~ ~ ~7) n_ot Im~ose religious and
cies, 88 to a group of proprietor
ers e~pite thetr ?Druly tendenprofitable settlement in the Gl vestors m 1779 trYing to promote
England system of c
enesee area and describing the New
ideal for that purpos:n::n~n ::dens, equal lots, and so forth as
doubted tha~ Long Island was
more rapidly settled than a o
Th
I
.
ny o er rural area m the colony
.
e vo untarist model so fte

feared. To many of course
o n praised, was nonetheless
property and therefore ~/ ::f:e:~:ed the com~l~te diffusion of
Colden, for example, viewed re ublican~ and po_htt~al authority.
the degeneration of all public a pth 't Ism as privatized anarchy:
u on Y-and therefore all spirit of
:f
Z:
J:
1982]
181
Studies
653
public good, justice, and decency-into an atomized chaos.88 Long

Islanders did, in fact, have a long history of political disruption in
relation to crown authority, opposing trade restrictions,. colonial
administration, crown taxation; monopolies, and forced salary payments to Anglican ministers. Thus, Governor Nicolls in 1666 complained that the citizens of Southold, Southampton, and East
Hampton "distill into ye hearts of his Maties good subjects, such
refractory and mutinous humours, as tend to ye disturbance and
breach of the Lawes Establish't."'" That potentially mutinous
spirit was expressed with special force in a remarkable "Remonstrance"10 the citizens of Flushing directed against an anti-Quaker
law imposed by Stuyvesant. The inhabitants (dissenting, but nonQuaker) admitted that their refusal to prosecute Quakers might
make them "seeme unsensible of the law and the Lawgiver."11
Nevertheless, they explained that the purpose of all civil law was
to "give an outward libertie in the State by the law written in
man's' heart designed' for the good of all.'.,1 ,Given that purpose, it
necessarily followed that any law inconsistent with the "law of loue
peace and libertie" ,. as written in the hearts of the local inhabitants was no law at all.14 As they explained their primary legal obligation to the uncomprehending Stuyvesant: "Maister, wee are
bounde by the Law to doe good unto all men.''711
Fear of this radical potential, however, related not only to disputes between crown and colony. The voluntarist thrust of sectarian republicanism was perceived by provincial leaders as a threat
to all legal continuity and order, leading to Colden's dreaded vi-
account of Dutch ch urch controversies

. the im
by historians, see generally the Ecc~JAS
po!,~nce of which has been underestimated
supra.
TICAL <'~<CORDs, supra note 9 and J R TA NIS.
I
G. SMITH, supra note 9, at 194-96 d

"be
tendency to favor a high degree of political' :scr; ..s at length the West India Company's
both cultivation and free trade To Stu an t're~~ous freedom as a means of encouraging
67. As they added somew~t incide~esan. s Ismay, even Quakers were protected.
being part of a "society laboring togeth ~tIt was also conducive to the "satisfaction" of
tleman to his Friend, Nov. 8, 1779 in~\) tHter V ofT. Romeyn Beck, Esq. {rom a Gen
oc. 1ST., supra note 9, at l146-5I.
66.
68. See, e.g., Letter from Lieutenant-Governor Colden to the Earl of Dartmouth, Aug.
22, 1774, in 8 CoL. Docs., supra note 9, at 486. This view was expressed frequently. For
example, Samuel Johnson, President of King's College, endessly railed against the enthusiastic anarchy and "mere democracy" of New England townships. Letter of Reverend Dr.
Johnson to the Archbishop of Canterbury, May 15, 1761, in 7 CoL. Docs., supra note 9, at
440.
69. Letter from the Governor to Captain Topping, Apr. 19, 1666, in 14 CoL. Docs.,
70. Remonstrance of the Inhabitants of Flushing, Long Island Against the Law
Against Quakers and Subsequent Proceedings By the Government Against Them and
Others Favoring Quakers, Jan. 1, 1658, in 1 EccL. REcs., supra note 9, at 412-14.
71. Id. at 412.
72. Id. at 413.
73. /d.
74. Id.
75. /d. at 412.
182
Critical
654
BUFFALO LAW REVIEW
[Vol. 31
sion of atomized chaos. Furthermore, this much-feared radical voluntarism emerged within specific legal argumentation as well as in
political rhetoric. For example, in a dispute concerning a minister's
salary and glebe, the defendant congregation questioned the legal
enforceability of even voluntarily entered contracts. The minister
claimed that if there had been an initial agreement to the contract
terms (as there had been in this case), then that agreement rendered the terms enforceable "to the end.'.,' Only passion, not reason, could lead to resistance. The congregation however replied
that if the issue were really one of voluntary ~onsent then the
question should be focused, not on the merely "legal:' contract
terms themselves, but on the question of voluntary consent itself-and therefore on the continuing free will of the congregation..,., Since in this case the will had ceased, so also had the contract.'~' That point of view, extended broadly, was no less
destruct!ve ~ the. liberal social contract theory then espoused by
the. Whig triUmvuate of lawyers (William Livingston, William
~m1th, J~., .John ~c.ott) than it was to crown authority. Not surprisIngly, Wilham LIVIngston, a firm believer in the civil libertarian
"right" to freedom of religion, was suspicious of both enthusiasm
and republicanism.
The republican threat to legal authority was also conceived, of
co~e, to be a threat to all secured inequality of wealth. William
Sm1th, Jr. stated the general assumption about the real content of
popular will: "The poor never want will to devour the Rich if it can
be .done with impunity.'.,' By the time of the Revolution this paranoia reached its full intensity, but it was also apparent throughout
the colonial period.80
Moreover, the fear of leveling was a fear specifically about labor as well as land. For example, in the Hans Block case cited
76. Mr. Lewis Ron's Third Memorial, Apr. 10, 1724, in 3 Doc. HisT., supra note 9, at
1175.
77. ld. at 1162-63 (emphasis added).
78. ~d.. This seems to have been a complex and difficult case. There are several references to It m the documents; the question of legal contract as opposed to continuing will was
only one aspect.
79. Quoted in L.F.S. UPTON, THE LoGICM. Wmc: WILLIAM SMITH ov NEw YoRK & QUEBEC 113 (1969).
. ~ The intensity of the paranoia can be seen in the following statement: "[L)eveling
prl?,ciples are held up-the country is convulsed everywhere. God Jmows what the end will
be. E. SPAULDING, NEW YoRK IN THB CRITICAL PERIOD 85 (1932).
Studies
1982]
655
above,'l the inhabitants had made no attempt ~ seize ~lock's

property-they had simply refused to be coerced mto workmg for
him. Yet that refusal was perceived as a direct threat to secu_red
property protection. William Tom, a magistrate of New Town, JUStified his pro-Block stand by invoking, with mounting incoherence,
2
scenes of leveling chaos: When a "plebian faccon"' with "there
frenzicall braynes"88 takes legal decisions into its own hands, the~
"noe man knowes his owne and trade must dye when ?oe man 18
sure of his owne estate, witness former exampl~s as M~!!!ello Jo~
of Leyden Jack Gade and Wat Tyler and DeW1tts. . . . He petitioned Governor Andros that "two fyle of sold.iers may l>e se?t
hither to ly in this river to keepe the people m awe and vs m
security. " 811
William Tom was not wrong in perceiving a link between
"free" labor and legal self-determination, for, from the republican
perspective, the defense of one's title by labor als~ me~t a defense
of the ultimate liberty to decide law by communtty Will: that connection flowed naturally from the perceived unity of property and
sovereignty. AB one township figuratively described the kh~di-jus
tice court the inhabitants had established to defend theu land,
they had "put their hands to the plow an~ would not q~t it till
they had got justice to take place."" Durmg the Revolution, the
notion described by Gordon Wood,'7 that the "people out-ofdoors"88 were the source of all law, was closely linked to the idea
'tors ofl and""
that' "the people at large" were th"
e true propr1e
81. See supra text accompanying notes 45-49.

.
82 Documents Relating to the History of the Dutch and Sweduh settlements on the
Dela~are River, June 23, 1675, in 12 CoL. Docs., supra note 9, at~ Si~ilarly, attempts
were made to quash the influence of both Whitefield and the Moravl8D8 m New York, bethey had "debauched the Minds of the people with Enthusiastical Notions." I d. The
;:a:er was illustrated in part by the fact that they enticed "[s)imple, illit:erate perso.ns, who
were wont to be Content to busy themselves in their Native Country 1n the Ordmary &
humble Occupations they were bred to vixt Brick-layers, Carpente.rs, Woolcom~rs, Taylors
and Such like Mechanical or handy-Craft Trades,'' till they were mfatuated With a dangerous and disruptive degree of "[e)nthusiasm or Folly. - ." ld.
83.
84.
85.
86.
Id.
Id.
ld. at 537.
.
Affidavit of Solomon Boyle of Morris County, May 13, 1747, m 6 CoL. Docs., supra
note 9, at 347 .
87. G. Wooo, THE CREATION
OF
THE AMERICAN REPUBLIC, 1776-1787 (1972).
88. Id. at 319.
D
H
89. See, e.g., Petitions of the Protestants of New York, Dec. 30, 1701, m 4 oc. IST.,
184
656
BUFFALO LAW REVIEW
Critical
[Vol. 31
Both assertions had roots deep in the col . I

The republican tendenc to
oma past.
and not to protect the u:eq ;;rotect freedom of choice in labor
clearly recognized as a threat ~ th accumulation of property was
velopment: se~ured concentration eo~ec:: ~odel.of e~onomic deand a productive work force In th"
dt capital mvestment
IS secon mod 1 h
prot ection was

not
property
as
.
a source and e e w at required
can seIf-rehance, but propert as
xpressiOn of republiaccumulated from the work yf tah source and product of wealth
d
.
o o ers That
d 1
mo e', m turn, reqmre a decidedly anti-republican d fi. r
Since its Dutch founding prov e.~I Ion of property rights.
acterized not only by small r:publi:~I to New !ork had been charland grants which extended f, h d dwnships, but also by huge
0 . . al
or un re s of th
d
rigm ly conferred on a few pol"f all f
ousan s of acres.
gr~ts ~~d once been conceived, es~:~iJ avored. families, those
mamtaimng a hierarchicall t
Y by Tories, as a way of
.
Y s ructured cro
authority, as against an alarmin t
wn-centered political
pant, separatist diversity.eo Man g ren m t~e direction of ramthe authority to conduct man y grant proprietors had been given
or courts and nam
. .
as to coIlect rents. el Such authorit w
e mimsters, as well
of the crown's ultimate prero ativy as un.derstood as an extension
as well as land. During the d!ru :i::thority over ~aw and religion,
generally unexercised prerogativ~ . ~760s, p~oprietors reasserted
Undeniably, a number of
P~IVI eges With renewed vigor
with a paternalistic regard fo:;~prie~~~ exercised their authority
the best of the Anglican tr d"t" e pWu. I.e good which exemplified
. .
a I Ion. Ilham J hns
specia1 mterest in the welfare of th I d"
. o on, who took a
ample.ez Increasingly however s: ~ ~ans, Is an outstanding exthat transcendent vision of the ub~ stlcated _proprietors linked
cate~ at the top of a moral/poli~cali~i!ood whi~h can only be lotractlon of surplus value fr
t
rarchy With the forced ex.
.
om enant labo Th
us, the defense of
h Ierarchical authority became cl I r k r.
tal accumulation.
ose Y m ed to the defense of capi-
d.
I
I
I
I
I
I
i
I
L
One clearly pro-accumulation

d
argument can be found in Judge Ro~~r ther~f~re anti-republican,
per denouncing taxation of unculti t ~ ~ Livmgston's public pava e and {a measure designed
: : :;.e S. KIM, supra note 9, at 1014.
92.
See E. CoUNTRYMAN, supra note 9, at ch. 1.
1982]
185
Studies
657
to discourage the accumulation of land in the hands of a few families, and force it onto the open market)!1 His argument was specifically about the organization of resources and labor. Livingston
noted that the New England system of equal "small parcels"
(gradually made smaller by the rules of partible inheritance) led
townships to be generally "poor and incapable of bringing anything
to market."8 ' It was a system conducive to subsistence farming and
barter rather than either profitable agricultural prod~ctivity or
manufacture: "For when the Farms are small the Husband Man
will consume the whole produce, and a Habit of Idleness and-Sloth
is produced for want of Employment.'0811 Livingston admitted that
the republican tradition of independent self-sufficiency promoted a
hearty m~tial spirit, useful for defense against the French, but he
93. Some proprietors combined tenant farming with the speculative investme11t in uncultivated land. "Selling I am not fond of att all,'' stoutly declared ~hillip Livingston, second Lord of Livingston Manor. P. BoNOMl, supra note 9, at 186. Therefore, there was much
pressure to put more land on the open market. Taxing uncultivated land was one measure
designed with that end in view; not surprisingly, the tax was supported by merchants. It
should be noted, ho;..ever, that. there really was no consistent "landed" viewpoint as opposed
to "market" viewpoint. The real question was where the line was to be drawn between the
two extremes of complete, monopolized concentration and complete diffusion of resources.
From the start, proprietors were interested in the market value of their land. Livingston,
opposing the tax, explained that the lapd's value would increase with an increase in population. The Livingstons' decision to hold rather than sell was an investment decision based on
an obviously rising market. Moreover, as prices did rise and leasing proved increasingly unprofitable, proprietors started to sell. However, they did so at high prices or on stiff mortgage terms and they fiercely resisted official plans to put ungranted land on the open market. Letter from Governor Bellomont to the Lords of Trade, Oct. 17, 1700, in 7 CoL. Docs.,
supra note 9, at 465. (Colden said that mortgages after the mid-century were often given
without down payment which farmers could not afford but at bigh interest rates. As a result,
there were many forfeitures, after which farmers lost even the value of their improvements-something they retained, at least in large part, under leases). In other words, proprietors wanted to take advantage of a market they controlled, while merchants wanted to
enter speculative land ventures at lower than monopolistic prices. Those merchants who did
speculate in land, like DeLancey, were then just as keen as the other landowners to protect
their investment from the threat of even greater diffusion.
Undeniably, the contests between merchants and landowners (the DeLancey faction versus the Livingston-Morrisites) were the subject of much bitter quarreling over specific issues, including tax allocation, fur trade, and defense policies. That quarreling dominated
New York politics in the eighteenth century. Such infighting, however, need not obscure the
broader issues which also were being discu8sed. From a more general perspective, land policies could be viewed as one part of the basic question New Yorkers debated so often: how
best to organize resources and labor in order to promote productivity.
94. McAnear, Mr. Robert R. Livingston's Reasons Against a Land Tax, 48 J. PoL.
EcoN. 63, 88 (1940).
95. Id.
186
Crirical Legal Studies
658
BUFFALO LAW REVIEW
[Vol. 31
warned that self-reliant republican farmers would soon find themselves defending a "[c]ountry scarce worth the Trouble of Defending" because it would be a country with no concentrated wealth."
Attacking the whole potent historical tradition of republicanism,
Livingston asserted that the much admired independent martial
spirit of the early Roman republic had only been achieved at the
expense of productivity:
By dividing the Lands into smaller Parcels the Romans became formidable,
But at the same Time it is evident that . . . they were so far from furnishing
Materials for Trade, that they were frequently in Danger of Starving for want
of Bread, & when this was imported to them from abroad they had nothing
wherewith to purchase. . . ."'
In contrast, Livingston argued that proprietors of large tracts

could force from tenants a production that exceeded subsistence:
"The Proprietors of Large Tracts by parcelling them out in a
proper Manner (i.e., in lots of sufficient size, to tenants) enable, &
by the Rents they insist on, oblige their Tenants to . . . raise more
118
than they consume." Moreover, because landlords had the capital
necessary for investment in mills, over which they held an effective
monopoly to the extent of their own land, the wheat output could
be both efficiently processed and also concentrated in the hands of
a few landlord-merchants for investment on the world market.
With wheat a prime commodity in world trade, the manor system
of farming was viewed as a source of capital needed for further
provincial development. By the 1760s most landlords were, in fact,
also traders on the world market-products included iron from
manor mines and forest products as well as flour and biscuits from
wheat. 1111
Livingston concluded his argument by recognizing more astutely than most writers of the period that "liberty" was a word
capable of holding two contradictory definitions. His purpose was
to warn New Yorkers not to be beguiled by the New England republican definition:
[I]t will be worth every Man's while, who has a proper regard for his Posterity, to consider how dangerous this [policy of discouraging accumulation) may
become to their Liberty for what is a security to the Liberties of the Charter
96. ld. at 88-89.
97. Id. at 89.
98. ld. at 88.
99.
See generally S.
KIM,
supra note 9, at 135-75.
1982]
187
Studies
Critical
659
. the granrmg of toLands

ours as
oo they are setGovernments to the Northward, t.e.,
tied, I have shewn already would be very dangerous
.
. .
l'b rty meant the "Independency" and
According to Ltvmgston! I e .
d self-reliance. 101
"Happiness" of secured mequahty, not sec~e.
erally believed
wth
Nevertheless, the tenancy system was so gen .
to hinder rapid, industrious cultivation and ~opul~o~s gr:as at
~;sas~':p~~~w:e;~~t:r~~::y~~~:~ ~:~:~~c;:~.drdes~hite ~tsy
te v luntary Initiative an a ea
dangers, seemed to promo - o
' comment on the subspirit of self-reliance. Gover~or Bello~o~t s the huge land grants,
ject became well-known: If It were no or
New York
.
M
husetts Province and quickly outdoe them in
would out thnve the assac M G ahm's [the attorney general] expr$!speople and trade ... for to. use r. r n be such a fool to become a base
sion to me and that often too, what manhW1 ~ r crossing Hudson's river that
hty Iandgraves w en o
tenant
to for
a our
man can
songmtg
purchase a good f reehold 1n the Jersies.' 0"
Similarly, in the legal corresponden:do~t~i:~~~:~:~ ~::~tZone reads often that. ~g~ %:c~~~assalage" and "internal weakbly in~roduced ~ spt~It o
w World and there were proposals
ness" mappropriate I~ t~eh~~i s loa The Independent Reflector
for
and glowingly d!praise
. d f eedom as essential for economic
a the same paper
scribed a spirit of unrest~ame r h d'l
if to Illustrate t e I emm ,
. .
h 104 y t
e as
E land model of land dtstrtbugrowt
nce"Ioll of encouragwarned against following t~e ~ew neg
h' h 1 d t the "mtschtevous onseque
.
o
tton,
w tc e without
ing settlement
first provi'd'mg the investment necessary for
.ag~~: '~~wsp~!~!iri~ o;;e~ublicanism
IOO.
McAnear, supra note 94, at 90.
at 72.
101. /d.
102.
Letter
from Governor Be IIomon t t o the Lords of Trade, Nov. 28, 1700, in 4 CoL.
Docs, supra note 9, at 791.
H STORY or AMERICAN LAw 76 (1930).
103. See, e.g., R. MoRRIS, STUDIES. AND -~h the Necessity of instituting Grammar
I04. The Advantages of Education, WI o to their Admission into our intended
Schools for the Instruction of Youth, prepar,Rat ry R supra note 12 at 419-26. See also
8 175 3 INDEPENDENT EFLECTO
'
College, No. L, Nov.
m
I NEw YoRK Resumed and
Conclu d ed N0
The Consideration of the natural Advantages o
ra note 12 at 433-38.
LII, Nov. 22, 1753, in ~NDEP~NDE~T:EI!L:::R:u~~t respect to its natural Advantages: Its
105. A brief Consideration o, ewth neighbouring Colonies, No. VIII, Jan. 18,
Superiority in severallmtances, over some 0
et
12
1753, in INDEPENDENT REFLECTOR, supra note ' a 106.
188
Critical
660
BUFFALO LAW REVIEW
[Vol. 31
the "[r]ise of Arts and useful Manufactures."~ 06 The triumvirate

described "[e]very Town Unemployed in those"~ 01 as a "dead
Weight upon the Public,"106 for inhabitants in such towns would
only "endeavor to support themselves by Barter and Exchange,"108
which by itself can "by no Means augment the Riches of the
Public. " 110
The general view, in other words, was that while republican
equali~y led to the stagnation inherent in completely diffuse resour~es (matching the diffusion of moral and political authority),
~Ive concentration of resources led to the vaguely feudal stag.
nation that comes from sapping voluntary initiative. Put in such
starkly negative terms, the dilemma would seem almost immobilizing. Typically, however, provincial leaders simply incorporated elements of both conceptual models into a vaguely conceived combination, never fully articulated, which would simultaneously draw
on the virtues of both self-reliance and inequality. The combination was inherently unstable, however, and seemed always on the
verge of unravelling into its two contradictory elements.
The depth of the provincial dilemma was underscored by the
fact that crown policy during the provincial period also reflected
both models of development and quite specifically enacted them
into the "law" of title in New York. Thus title was simultaneously
said to derive from occupancy and labor, but also, exclusively, from
crown grant. As a direct result, by the 1760s "property" in New
York was a virtually unintelligible concept.
106. Id.
107. Id.
108. Id.
109. ld.
110. Id.
1982]
189
Studies
733
CoNCLUSION
What emerged from the doctrinal incoherence in the pro~n
cial concept of right to property-from the inabi:lity to ~ither r~J~ct
or fully assert the crown's ultimate authority Without Jeopardtz~ng
the entire structure of property ownership-was an early, tentative
step in the formation of a safe middle ground of "right." That middle ground was protected by the decisions of Ke~pe and ~thers
like him in the provincial legal system. The selecti~e assertion of
crown right and crown policy began, at. least .P.arttally, to secure
title from the claims of both the republican VISion of property .as
an extension of the "robust" will of an independent people and the
hierarchical vision of property as the direct extension of ~o~al pr~
rogative. Nevertheless, as Kempe foresaw, however unwtt!mgly m
his practice, a concept rooted in not~g more substantive than
"selective assertion" was necessarily fragile. ~ a world where morality and politics were inseparable, to deny. the clai~s of crownbased hierarchy might unleash the same union of.VIrtue .and authority steming from a source completely free of hi~rarchical ~n
trol-i.e., from tho free will of a republican co~unity. Cate~ories
like God and king at the top, with their legtttmacy so obVIously
rooted in morality, held open the possibility that pe?ple would ~ee
in those categories the potential for their own sovenegnty and Immediate spirituality. Thus, while Kempe and his c?llea~es. soug~t
to retain elements of both hierarchy and voluntariSm wtthm t~e1r
notion of property rights, their rudimentary efforts were fo~ a time
inadequate. By the time of th~ Revolution, that most radical potential was realized and the connection between people and crown
was dissolved-many settlers then declared that the "people o~t
of-doors" were the only true sovereign, concretely embodymg
within their own local republican communities a new unity of the
ancient categories of custom, virtue, and authority. ~hey found
themselves saying "Damn the King" as they set up theu own local
courts, designed to protect the freedom of their labor. on t~e _land.
Despite the logical and political force of that ra~tcal VISI~n. of
sovereignty and property, a much less threatening mtddle posttion
ultimately prevailed. Through a number of elaborate conceptual
190
Critical
734
BUFFALO LAW REVIEW
[Vol. 31
ploys, and
the dstrategy
. . simultaneously
.
lated
. d thof th e mt'ddle posttlon
assimieme
e extremes of bier h
d
.
end roduct was the formation of whaS:~: hS:ve :~=tartsm. The
co?thception of
individualized rights
ton
Wl
a
potentially
sovereign power-the
model which by th
d f th .oppressive
e en o e nmeteenth century had ttai d
gothic elegance of classical legal'1sm.
a ne the
In the years shortly after th R 1 .
emergence of the elements from e . evo utlon, one can see the
w.hich that elegant structure was
later fashioned First "th
out of the 1
e sovereignty of the people" was lifted
o , concrete community that
t al
thentic republican visi<m. The will of th was cen r to the auabstract idea, embodied in
.
e ~eol?le became only an
tion of which was divorced :ro:::n d~onstlt~tlon, the interpretsostensibly created it-and from th e .~ec: wtll of the people who
any particular time. In effect "th: Wl ~ ~';;' concrete people at
mystical body which stepped' onto f:eop el't'~came
that vaguely
1 1
st:age only once,
distributed its sovereignty with. th pho
constitution and was
m .e sp eres dehneated by the
never seen agam.
. .
. Srmilarly, the notion of property was lifted out f th
mty of voluntary labor d t'
.
o e commuonce derived its
. an Raac tve participation from which it had
will
meanmg.
ther than an expression of
u1ar
S:h:n
?ght was
sition to participation ~or~ peo~-standmg as a right in oppotween property and Iibert wver'
r the. Re~olution the link beof republican communitari' . as ~serted, uomcally, not on behalf
antsm, ut m~st often on behalf of bierarchical wer 1
cal claim~
re atlons-yet without hierarchy's traditional ethi-.
;:nlitabt~ral
pr~vate,
cai
ins~::::~~m
in~!n::o:
'
~~st;~ const~tutional
con~;fually
righ:~:l:~~:::i;!t;b:!ra~::~~dso cru~ial to the liberal model of

r~at~call! new configurations of
elements which were ~nc~
1?Cated wtthm etther the republican or
hierarchical mod Is
e m partiCular the new de I
t f
.
pubhc distinctions. The first ~d
. P oymen o prtvate/
most tmpo~t of these, of
course, was the wedge driven bet
ween state (pubhc) and civil (private) society around wh' h
lC were organized all of th
th d' .
.
'
That initial wedge served to break apart the
eo ld er 'ttstn-f
butlons.
. .
re1tglOn, economics, politics and 1
.
o um y o
formed into negative priva.; ri hts :b The first two were transand law, which now alone lay cf. to e protected from the third;
atm reason and objectivity (even
1982]
191
Studies
735
while renouncing its old link to morality), became the crucial barrier between rights and politics. The virtue of the republic came to
be defined, especially in legal rhetoric, not by the active moral
vigor of the participatory community, but by the strength of that
legal barrier.
This new configuration, in turn, borrowed from both the
Anglican and sectarian models, placing elements of each in dramatically new combinations. For example, from the voluntarist tradition of sectarian independence came the notion of diversity implicit in the "free exercise of religion;" yet from Anglicanism came
the notion that the religious experience (redemption) is, at its core,
so personal, private, and subjective as to pose no threat to existing
structures of economic hierarchy and political authority. The result
was the transformation of the religious experience into a civil right
which was both tolerated and harmless.
In a parallel move, from the hierarchical model of property
came the notion of formal title and protected inequality, from
which property as the protection of free labor and independence
within republicanism came the rhetoric which described property
as a sphere of autonomy and freedom protected from state impostion. Yet that same rhetoric was invoked consistently to justify
rather than condemn the hierarchical exploitation of labor for
"private" gain, serving the needs of capital accumulation. The
public, communitarian potential within the ideal of free labor had
been stripped away. Labor was then treated as no more than a private contract right, an object of "free" exchange on a market. Ironically, the only continuing invocation of labor as participation
emerges in time of war, when the old republican martial spirit
helps to mobilize the people. Otherwise, all that remains of the
public side of property is the assumption that "people" have willed
its protection, a protection which is no more than a negative immunization of hierarchical property relations from the old claims
that both the hierarchical and the voluntarist models once made in
the name of morality and justice.
[6]
TOWARD AN HISTORICAL
UNDERSTANDING OF LEGAL
CON~CIOUSNESS:
THE CASE OF CLASSICAL LEGAL THOUGill
IN AMERICA, 1850-1940
Duncan Kennedy
I.
My subject is the development and disintegration of a form of American
legal thought that emerged between 1850 and 1885 and flourished between
1885 and 1940, allowance made for the spurious precision of dates. Because this way of thinking amounted to a rationalistic ordering of the
whole legal universe, I will call it Classical legal thought. For a crucial
season, that of the transformation of American economic and social life,
the thinking of the legal elite was organized neither around the categories
Research in law and Sociology, Volume 3, pages l-24.
Copyright 1980 by JAl Press lnc.
All rights of reproduction in any form reserved.
ISBN: 0-89232-186-5
194
4
195
DUNCAN KENNEDY
of natural right and utilitarianism, nor in the vaguely instrumentalist or

nationalist mode of the "Formative Era." During this period, treatise
writers, leaders of the bar, Supreme Court Justices, and the like shared a
conception of law that appeared to transcend the old conflicting schools,
and to ally the profession with science against both philosophical speculation and the crudities of democratic politics.
That the "real" alliance influencing legal outcomes between 1865 and
1940 was that of the older conservatism of the profession with a class of
despoiling entrepreneurs and politicians against the working class, the
farmers, and the "public interest" is an article of faith in the liberal
historiography of the period. I believe that the preoccupation with validating this vision of the recent past has hindered understanding of the
dilemmas of modem legal and political theory. We can understand these
only if we recognize and confront the existence of legal consciousness as
an entity with a measure of autonomy. It is a set of concepts and intellectual operations that evolves according to a pattern of its own, and exercises an influence on results distinguishable from those of political power
and economic interest. The autonomy of legal consciousness is a premise;
yet that autonomy is no more than relative. Not only the particular concepts and operations characteristic of a period, but also the entity that
they together constitute, are intelligible only in terms of the larger structures of social thought and action.
This approach denies the importance neither of ideologies like laissezfaire, nor of concrete economic interests, nor of the underlying structure
of political power. It insists only that legal consciousness, which has its
own structure, mediates their influence on particular legal results. The
introduction of a third tier between interest or power and outcomes
greatly complicates the task of historical exposition. This essay is devoted
to outlining the general conceptual apparatus: the language necessary to
describe the form and content of a consciousness. If this is worth the
effort, it is because it makes it possible to learn things about our present
situation which were obscured by the simpler vision of an unmediated
interplay of purposes and outcomes.
Stated in the most general possible way, this is what happened: Before
the Civil War, the legal elite conceived the set of legal relationships that
together comprise the American legal system-i.e., private citizen to
private citizen, private citizen to state. legislature to judiciary. and federal
to state government-as qualitatively distinct from one another and as
operated legally according to qualitatively distinct analytic principlesi.e., the common law, sovereignty limited by written constitutions. the
equilibrium of forces between separate governmental powers, the union
of sovereign states.
During the Classical period. the legal elite conceived these four institu-
Legal Consciousness
tiona! relationships as four particular instances of a ~ingle general legal

relation: each of them was an example of the del.eg~tl?n of .legal powers
absolute within their spheres: T~e role o~ the JU.dl'::la~ (Its sphere of
absolute power) was the apphcatwn of a smgle, d1stmct1Vely legal, analytic apparatus to the job of policing the boundaries of these spheres: !~e
1 system appeared to have synthesized successfully the pos1t1v1st
. IE
.
lega
science of law, natural rights constitutionalism, and Class1ca conom1cs.
After 1900. this highly-integrated system began a process .of further
integration that tended toward the reduction of all legal ac~10n to the
enforcement of intrinsically just ground rules for economic struggle
among private actors. The refinements were a res.po~s.e to attacks by
liberals and progressives on the political role of the JUdiCiary, but proved
ultimately self-destructive. The triumph of a purely fo~al th.eory of
marginal utility in economics and the appearance of Am~ncan phll~s~ph
ical pragmatism undermined the analytic apparatus, l~adm~ ~o the d1ss1~a
tion of faith in the intrinsic justice of the rules, and d1scred1tmg the not1on
that they could be objectively developed or applied. The outcome wa~ a
disintegration of legal thought into mutually autonomous subc~t~gones
different from but somewhat resembling those of the pre-~1vtl War
period, and the recession of the jud~ciary. from the role of guard1an of the
integrity of fundamental legal relatwnsh1ps.
.
The rise and fall of Classical legal thought was an mtegral, necessary
event in the current of development within which we live. l reject the
conception of "formalism" as an aberrational interlude, marring ~hat
would otherwise be a uniform and consistent approach-sometimes
vaguely denominated "instrumentalism"-eq~ally c~aracter~stic ?f the
pre-Civil War and post-1937 periods. As l see 1t, we hve ~ot m a t1me .of
return to the sound practice of 1830, but in a post-Class1cal age of diSintegration.
.
My primary purpose is to write a history of th~ transformations ?f legal
consciousness. I believe that it is possible to 1solate and descnbe the
significant dimensions or aspects of the body of ide.as through ~hich
lawyers experience legal issues. But once legal consciOusness begms to
take on a certain definition, a whole series of hypotheses suggest themselves concerning the relationship between its form and the behavior of
the actors in the legal system.
I am particularly interested in the connection be~ween t~e forms ?f !~gal
consciousness and what I will call judicial activ1sm or mterventwmsm.
Judicial activism is a relative term indicating an unusually great willingness to treat judicial power as an autonomous, creative factor in the
development of economic and political life. I~ pub~i~ law.' it. refers to the
judge's willingness to intervene dmmatically m pohttcal hfe ~~a way that
appears to flout majority sentiment, as represented by the leg1slature and
196
DUNCAN KENNEDY
6
II'
I
''
II
I
II
I
''
d'
''
I'
I,
,I
,I
Critical
executive. In private law, it refers to willingness to change or evolve the

law in ways that upset existing patterns of economic and social advantage. As I use it, judicial activism has no inherent political tendency to the
right or to the left. The conservative critics of the Warren Court have
taught us to see the strong parallel between the right-wing interventionism
of the period 1890-1937 (the rights of property and contract) and the
left-wing interventionism of 1955-1970 (equality). I take this perspective
as a starting point.
The significance of the general phenomenon of activism lies in its
premise. It is that human reason is something more than an instrumental
mechanism for the execution of collective or individual decisions reached
through the clash of interests, passions, or appetites. It is perhaps no
more than an accident of our institutional history that we have put judges
in the position of being at once enormously powerful and without democratic political legitimation. What is important is that their anomalous
position has forced them, generation after generation, to justify their
actions in terms that transcend the rhetoric of 'our political pluralism.
They are carriers of the notion that the ideal of justice is accessible to the
reason of people acting in the real situations of political and economic life.
This is what seems to me valid and worth developing in the theoretical
part of our peculiar political/legal tradition. But my sense is that the study
of the characteristics of legal consciousness holds the key to a large
number of the most puzzling aspects of the intellectual history of law.
II.
IIiII
I'
I'
I
'I
The notion behind the concept of legal consciousness is that people can
have in common something more influential than a checklist of facts,
techniques, and opinions. They can share premises about the salient
aspects of the legal order that are so basic that actors rarely if ever bring
t~em consciously to mind. Yet everyone, including actors who think they
disagree profoundly about the substantive issues that matter, would dismiss without a second thought (perhaps as "not a legal argument" or as
"simply missing the point") an approach appearing to deny them.
These underlying premises concern the historical background of the
legal process, the institutions involved in it, and the nature of the intellectual constructs which lawyers, judges, and commentators manipulate
as they attempt to convince their audiences. Among these premises, there
are often links creating subsystems with their own internal organization
and rules of operation. These change. For example, they expand and
contract to cover-or not cover-a greater or lesser number of the
aspects of legal reality that are within legal consciousness at a given time.
Classicism, in its developed form circa 1900, was a particularly powerful
Legal Consciousness
197
Studies
7
subsystem of this kind. My thesis is that by tracing the transformations

involved in its emergence, flourishing, and decline, we will find a way to
understand the mass of seemingly self-contradictory or plainly mistaken
verbiage that makes up the greater part of our legal tradition. "
Classical legal thought was a way of understanding the whole American
legal system. Its context was the first protracted period in America of the
kind of economic and class conflict that had characterized the Western
European countries during the period of rapid industrialization ..The
issues involved were the concentration of industry and finance combmed
with "cut-throat competition"; the struggle between the farmers and the
railroads; the struggle between unions and employers over working ~ondi
tions and wages; and the relation of state to federal governments m the
regulatory process.
.
The premise of Classicism was that the legal system cons1sted ~fa .set
of institutions, each of which had the traits of a legal actor. Each mstltUtion had been delegated by the sovereign people a power to carry out its
will which was absolute within but void outside its sphere. The justification' of this judicial role was the existence of a peculiar legal technique
rendering the task of policing the boundaries of spheres an objective,
quasi-scientific one.
Classicism consisted of two exactly analogous systems whose common
link was the judiciary. The two systems evolved in parallel fashion, and it
is rarely possible to say with certainty which served as the model for the
other. The first system was that of federalism, the participants being
Congress, the federal judiciary, and the States. Federal and state governments were seen as exercising "sovereignty," a legal concept formally
the same in all cases. The similarity of the respective powers meant that it
was equally meaningful to speak of state usurping state; of state usurping
federal of federal usurping state authority.
The ~econd system consisted of individual property holders, a legislature, and a judiciary. Both the property holders and the legislature were
seen as exercising a formally identical absolute dominion over property.
The difference as among property holders and between them and the
legislature was one of jurisdiction. The physical boundaries between
citizens were like those between states. The non-physical division of
jurisdiction over a given object between legislature and citizen was like
that between state and federal governments. Because all the actors held
formally identical powers of absolute dominion, one could speak equally
of trespass by neighbor against neighbor, by state against citizen, and by
citizen against state.
In' this system, the judge was also conceived as the holder of a power,
whose nature was identical whether the occasion of its exercise was a
quarrel between neighbors, between sovereigns, or between citizen and
198
Critical
DUNCAN KENNEDY
legislature. Its function was to prevent the various kinds of usurpation

already referred to. There was always a danger of the judge, under the
cover of performing this function, himself usurping the authority of the
legal actors whose spheres he was supposed to be defining. What prevented this was that he acted by elaborating general principles. Whereas
the other actors exercised their own wills, he obeyed the will of the people
who had set up the whole system in the first place.
Classical legal thought reflected a state of mind deeply preoccupied
with an opposition between freedom, conceived as arbitrary and irrational, yet creative and dynamic, and restraint, conceived in similar stark
terms, as rigid, principled in an absolutist way, yet necessary as the
antidote to freedom. Activity within the spheres of power represented
liberty, autonomy, and unbridled mastery for legal actors. By the sharp
delineation of boundaries, the virtues of such an unleashing of private
energy were to be secured without the dangers of anarchy, and with only
that minimum of injustice and immorality that are necessary if there is to
be any autonomy at all.
III.
I
I
II
''
'
'
,I
Classical legal thought was an ordering, in the sense that it took a very
large number of actual processes and events and asserted that they could
be reduced to a much smaller number with a definite pattern. What was
ordered was the enormous mass of rules and standards courts applied to
different kinds of cases. The paricular simplification that developed was
influenced by the actual content of the rules it organized and, in tum,
constantly influenced them. In other words, there was a reciprocal action
between the system of premises and practice. The study of the Classical
subsystem within legal consciousness does not aim at a description of
what the practices "actually" were, or of their effects on things like the
distribution of power and resources within society. It is designed to tell us
about the theoretical atmosphere within which practices occurred, and to
tell us about the manner in which the theoretical atmosphere influenced
particular results.
The basic mode of this influence of theory on results is that the ordering
of myriad practices into a systematization occurs through simplifying and
generalizing categories, abstractions that become the tools available when
the practitioner (judge or advocate) approaches a new problem. These
abstractions operate the way a technology operates on the design of
physical objects: the concepts impose limits, suggest directions, provide
one of the elements of a style, but do not uniquely determine outcomes. In
the Classical systematization, the concept that was most significant in this
way was that of a constitutionally delegated power absolute within its
199
Studies
Legal Consciousness
sphere. As time went on, all legally significant action came to_be thought
of as the exercise or creation of such power~, w~ether t_he ~~rttcular actor
was public or private, state or federal, legtslattve or JUdtctal.
One of the functions of systems of legal thought-one of the rea~ons for
their existence-is the reconciliation of what appear to be confltcts between institutions and contradictions among ideas. ~~-other wor~s, system is necessary not just to permit us to deal in a cogmttvely effecttve w~y
WI"th the chaotic mass of rules. It is also necessary because the
. theonst
.
wishes to show that where many perceive confusion, danger, msecun~~
rivalry, and aggressive action, there exists a latent _orde~ that has a legtttmate claim to our respect. This order, once recogmzed, ts both a reassurin fact and a goal for constructive striving.
!classical legal thought (and in particular the concept of a power abs~
lute within its sphere) appeared to permit the resolution o~ the bast~
institutional conflicts between populistic legislatures and pnvate businesses, between legislatures and courts over the legitimacy and ex~ent of
judicial review, and between state and federal governments struggling ~or
regulatory jurisdiction. At the level of ideas, it me~~a~ed the contradictions between natural rights theories and legal postttvtsm, and _b~tween
the democratic theory of legislative supremacy and the Classtcal economic prescriptions about the optimal role of the state in the economy. It
pl<iced judges, lawyers, and legal thinkers in the center_ of the web of
government while shielding them from the charge of havmg usurped the
Constitution.
IV.
The extremely abstract propositions of the last few paragraphs may _become more intelligible applied to one of the most famous of Classtcal
cases that of Lochner v. Nell' York, decided by the Supreme Court
in 1905. The majority and dissenting opinions of Justices Pe~k~am
and Harlan illustrate some of the more striking traits of Classtctsm.
(The dissent by O.W. Holmes, in which he uttered the immo~al
phrase, "the Constitution does not enact Mr. Herbert Spenc~r's So~w/
Statics," is a vital document of the attack on Classicism; we wtll constder
it later.)
.
The issue in Lochner was whether a New York statute fixmg a ten-hour
day for bakers violated the clause of the Fourt_eent~ Amendment forbidding the states to "deprive any person of ltfe, _h~erty ~r. property
without due process of law." Justice Peckham's optmon stnkmg down
the law has been a continuing source of outrage, both because of the
inhumanity of the result and because it contains language that can be
reasonably interpreted as violently hostile to all attempts to use the legal
200
Critical
10
DUNCAN KENNEDY
system as a conscious mechanism to red

. .
workers in their dealings with em lo ers ;ess the bargammg p~sition of
the case serves as a horrible re!in~er . n modern legal consciOusness,
pre me Court justices letting their . 'sub e~i~~~, bad c.?nse_q_ue~~es of_ Sudraw them into a kind of judici 1 . ~ h . and P~htical passions
institutionally suicidal. Mode~ ~~~~w t at IS b~th an~I-democratic and
cases habitually club each othe
. h ehntators discussmg controversial
r Wit t e charge of "L h
,
It seems a good idea to state em hatica
.
. oc nensm.
is neither to add to the debate
t ~ly at this pomt that my purpose
cases lik 't
ou t e correctness of Lochner and
judges sh~~ld ~~~~~etr~~~ :aw co~clusi~ns from it about how modern
the majority opinion. good se pdrovides, m Harlan's dissent as well as in
.
,
evi ence about the struct
f h
consciOusness of the period. The c
.
.ure o t e legal
particular descriptive characteriza~:~p~;~~gal_ consciOusness, and the
assic_al legal thought as a
subsystem within it, should he! .
~~ un~erstandmg what the justices
thought they were doing The
the conceptual limits within w~i~~~heel~m understanding the nature of
suffices to "prove'' anyth'
b
Y orked. Of course, no one case
mg a out a conscious
d
rarely even illustrates more than f,

f.
ness, an a smgle case
will immerse herself in these iona ew o . Its aspects. But if the reader
least with a sense of the period's ~t~~e~tatwns, she may come away at
Peckham frames the issue
.
I . . .
powers. The court (Lochner ~ m':, vmg Individual_ r~ghts and public
position with respect to twov. ewl ork 1905: 53-54) ISm a disinterested
exact Y analogous entities:
:b
,,
,II
,I
.I
'!
I
The statute necessarily interferes with the ri ht

employees, concerning the number of hou~. ~f co~tract between the employer and
1 . h s m which the latter may labor in the
bakery of the employer. The ge
b
.
nera ng t to make 1 co 1
us mess IS part of the liberty of th . d" .d

'
n ract m relation to his
ment of the Federal Constitutio :;; lVI ual prot_e~ted by the Fourteenth Amendgeyer l'. Lowswna, 165 U.S. 578. Under that
provision no State can deprive n.
process of law. The right to purc~~{e pertso~ ~~life, _liberty or property without due
this amendment unless ther
. or o se abor IS part of the liberty protected by
e are Circumstances which ex 1 d h .

exist"
. h
.
c u e t e nght. There arc
owever,
certain
powers
h
mg m t e sovereignty of e h s
.
'
somew
at
vaguely
termed
h
. . tate m . the Union
.
po 1ICe powers the exact d . ac
w h Ich have not been attempted b h ,
escnption and limitation of
hout, at present any attem t Y t e courts Those
powers. b roadly stated and
Wit
.
P a 1 a more spec1fic limitat'

1
'
IOn, reate to the safety,
I h 'morals and general welfare of the u .
heat
such reasonable conditions as m b . p bile. Both property and liberty arc held on
ay e Imposed by th
the exercise of those powers and with su .h

. : governmg power of the State in
was not designed to interfere, M I
Kc conditions the Fourteenth Amendment
US 4
. ug er v. ansta 123 U S 6..,3 I
. . 36; Crowley v. Christensen, 137 U S s6.'
. . ~ ; n re Kemmler. 136
The State, therefore, has power t
. . h :In_ r: Converse, 137 U.S. 624.
f
o prevent t e md1v1dual fro
k"
o contracts, and in regard to them the Fed
. . m rna mg certain kinds
the contract be one which the St t . h e:~l ConstitutiOn offers no protection. If
th
a e. m t e legitimate exe . f
e nght to prohibit, it is not prevented from r . . . :else o Its police power, has
. h p ohlbitmg II by the Fourteenth Amendment. Contracts in violation of a st t t
. a u e. Cit er oft he Federal or state government. or
201
Studies
Legal Consciousness
11
a contract to let one's property for immoral purposes, or to do any other unlawful act,
could obtain no protection from the Federal Constitution, as coming under the liberty
of person or of free contract. Therefore, when the State, by its legislature, in the
assumed exercise of its police powers, has passed an act which seriously limits the
right to labor or the right of contract in regard to their means of livelihood between
persons who are sui juris (both employer and employee), it becomes of great importance to determine which shall prevail-the right of the individual to labor for such
time as he may choose, or the right of the State to prevent the individual from
laboring or from entering into any contract to labor, beyond a certain time prescribed
by the state.
It is worth pausing a moment to dwell on the odd locution by which

Peckham turns the confrontation into one between the "right of the individual'' and the 1 'right of the state." This parallelism of concepts comes
up again five pages later: "It is a question of which of two powers or
rights shall prevail-the power of the State or the right of the individual to
liberty of person and freedom of contract." In the second reference, the
parallelism is reinforced by showing that rights can be seen as powers, as
w~ll as vice versa.
It may seem as though there is an asymmetry between rights and powers implicit in the presentation of the situation as one in which rights are
not "absolute," but rather limited by the police power. But this is an
accident of exposition:
It must, of course, be conceded that there is a limit to the valid exercise of the police
power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy and the legislatures of the
States would have unbounded power, and it would be enough to say that any piece of
legislation was enacted to conserve the morals, the health or the safety of the people;
such legislation would be valid, no matter how absolutely without foundation the
claim might be. The claim of the police power would be a mere pretext-become
another and delusive name for the supreme sovereignty of the State to be exercised
free from constitutional restraint. This is not contended for (Lochner v. New York,
1905: 56).
Both the right and the power are entitled to protection; each overrides and
annihilates the other, and is in that sense absolute, but only within a
"sphere." The two concepts are mutually limiting. The two categories of
right and power could be spatialized as two contiguous areas. They most
certainly do not come across as conflicting "interests" to be "balanced"
within some imagined field of forces.
The Classical conception of the judicial role is stated by Peckham, in
the next stentence after that last quoted, as a deduction from the character of legal rights and powers:
In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the
202
12
II.I,
I
'I
Critical
DUNCAN KENNEDY
question necessarily arises: Is this a fair, reasonable and appropriate exercise of the
police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those
contracts in relation to labor which may seem to him appropriate or necessary for the
support of himself and his family? (Lochner v. New York, 1905: 56).
The notion is that of an objective task of drawing lines or categorizing

actions as though they were objects to be located in the spatial map of
spheres of power. This task constitutes itself a "power" to be exercised
within and only within a limited sphere, as Peckham says in the next
paragraph:
This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State it is valid, although the judgment of
the court might be totally opposed to the enactment of such a law. But the question
would still remain: Is it within the police power of the State? and that question must
be answered by the court.
There are two important traits of Classical legal thought that are not
well illustrated by Peckham's opinion. These are the two large structural
traits. First, the identity of private law (individual-individual) rights with
constitutional law (individual-state) rights is pre~ent only implicitly.
Peckham takes it as established that constitutional "liberty" includes
"contract"; that everyone agrees that the baker-employer relation is
"contract" within the constitutional definition; and that the fixing of
hours abridges "freedom of contract." The nature of the triangular individual-individu~l-state relation becomes clear only when there is some
argument about the correspondence between constitutional freedom of
contract and common law freedom of contract.
Second, the relation of this triangular structure to that of federalism
(state-state-federal government) is missing from the majority opinion, but
suggested in the dissent, as we will see in a moment.
The main point about Harlan's dissent is that it employs exactly the
same conceptual structure as the majority opinion:
Speaking generally. the State in the exercise of its powers may not unduly interfere
with the right of the citizen to enter into contmcts that may be necessary and essential
in the enjoyment of the inherent rights belonging to every one, among which rights is
the right '"to be free in the enjoyment bf all his faculties; to be free to use them in all
lawful ways: to live and work where he will: to earn his livelihood by any lawful
calling: to pursue any livelihood or avocation ... This was declared in Al/1-:eyer t.
Louisiana, 165 U.S. 578. 589. But in the same case it was conceded that the right to
contract in relation to persons and property or to do business. within a State, may be
'"regulated and sometimes prohibited, when the contracts or business conflict with
the policy of the State as contained in its statutes ... (hoc/mer v. New York, 1905:
65-66).
203
Studies
13
Lega( Consciousness
Peckham Harlan argues that the Court's function is to ~arry_ out
th;:~ective task of classification, and that this judicial power ts stnctly

limited:
Whether or not this be wise legislation it is not the province o~ t!~t~~~: ~~~~:r~;
f overmen! the courts are not concerne
.
erminin the question of power to interfere with
Under our s~ste~s o. g
~ether the means devised by the State are
policy of legislation. So that m d~t .
lib'erty of contract, th~ court m:,~:':~~~ :ccomplished and have a real or substantial
germane to an end which may
.
. h dail work of the persons. male
relation to the protection of health, asd mvofilvet~ metrye esta~lishments. But when this
h
gaged in bakery an con ec 10n
I
and fiema e, en
. .
.
n view of common experience, to say t at
~;;.~~::~z~~=i.~B~h~w::.~.:~~~::~~;;.~;~~
he statute has no appropnate or direct connec IOn

Nor ca~ 1 say ~~~~ t hich each State owes to her citizens, Patterson v. Kentucky,
protectiOn to ~e_a w
.
fthe health of the employees in question. Holden v.
su.pra; or that 1t IS not promotive 0
h
prescribed by the State is
.
,
S 1
ra or that t e regu 1a110n
Hardy, Lawton v. tee e, sup '
II arbitra
Gundling v. Chicago,
utterly unreasonable and extrava~nt ~r tw~o ~yond ;~stion a plain palpable
supra: Still l~ss can 1 say that :e ef:~~:~:~l law. Jacobson ~- Massachusetts,
invasion of nfightsl secbur~tdth~ t~is court will transcend its functions if it assumes to
supra There ore su m1
9--70)
annul. the statute of New York (Lochner v. New York, 1905: 6
.
ustices differed, however, and not just about the applicatio~ ~fthe
Peckham stated his test for classtfymg a
statute as follows:
ru~~et~ the facts of this case.
Statutes of the nature of that underhr~vi~w.' lim~~~n~~~: t;:::;~~~:o~~c~t~~;~:c:~

intelligent men may labor to earn t elr IVtng,
. b the
with the rights of the individual, and ~hey are not ~aved ~:~:n~o:d~~~:~~~:bj:ct of
claim that they are passed in the ex~r~lse of ~h: ~~~~ :th unless ~here be some fair
the health of the indi_vidual wh_ose ng ts are m teth:re is ma~erial danger to the public
rt 1 d If this
ground reasonable m and of Itself. to say tha
~r
t~e ~~~~~x~:ts i~~~s~o~;h~: ~~~o;h:~e ~~~~uth:
health
to the health of
:ubject of
be 'not clearly the case, t e m I I
otection of the Federal Constitution regardd the legislature of the State has no
legislative interference, are under the
ing their liberty of contract as well as o person. an
v k 1905 61)
ng
ht as proposed

. t he1r
power to I1m1t
in this statute (Lochner v. New 1 or
r .
Harlan stated the test very differently:

.
f
ct which cannot be violated even under
Granting then that there IS a hberty 0 contra
.
.
ding to settled law
the sanction of direct legislative enactfment. but ~ssumb.lencgt.ta; :~~~r reguhitions as the
h t
h liberty o contract IS su ~
.
we may assume. t a sue .
ood and the well-being of soc1ety.
:~~:~ ::::;::~~:~~~~n~r~~~~~:~~~:~~ecj:i~i~~ygmay _decl~re suhch r~~ula0ti~:~~o f~~
.
.
h . d void'' Upon th1s pomt t ere IS n
. enactment Fedeml or state. is
in excess of leg1slat1ve aut onty an
.
dispute; for, the rule is universal that a 1egis 1auve
' .
204
14
~ritical
DUNCAN KENNEDY
never to be disregarded or held invalid unless it be, beyond question, plainly and
palpably in excess of legislative power.... If there be doubt as to the validity of the
statute, that doubt must therefore be resolved in favor of its validity, and the courts
must keep their hands off, leaving the legislature to meet the responsibility for unwise
legislation. If the end which the legislature seeks to accomplish be one to which its
power extends, and if the means employed to that end, although not the wisest or
best, are yet not plainly and palpably unauthorized by law, then the court cannot
interfere. In other words, when the validity of a statute is questioned, the burden of
proof. so to speak, is upon those who assert it to be unconstitutional. McCulloch v.
Maryland, 4 Wheat. 316, 421 (Lochner v. New York, 1905: 68).
Let me be quick to say that two legal actors can differ about far more
than the placing of a burden of proof and still share a legal consciousness.
Indeed, Pec~ham and Harlan share so much that one might argue that
there were stmply some well-settled legal rules, and a disagreement about
burden of proof. Who needs a pretentious concept like consciousness to
explain the situation? Alternatively, one can see the similar statements I
have quoted from majority and dissenting opinions as a kind of compulsory curtsy to the audience before the "real" battle, which is over
whether the judiciary should favor capital or labor in the struggle for
~ocial justice. As I said a moment ago, a case "proves" nothing. If proof
ts to be had, it is in the eating of the later courses.
. But note, nonetheless, that at the end of the last passage quoted, Harlan
cttes the case of McCulloch v. Marland. He cites it for the proposition
that "whe? the validity of a statute is questioned, the burden of proof, so
to speak, ts upon those who assert it to be unconstitutional."
fv!cCu!loch was a case about the relation of state to federal powers,
dectded m 1819. Marshall's opinion for the Court argued that both state
and feder~l powers are absolute within their spheres, and that the job of
the Court ~ to employ an objective technique of constitutional exegesis to
draw the lme between them. I believe that at the time McCulloch v.
Ma_ryl~nd was decided, it would have seemed, to the overwhelming
maJonty of the_ legal elite, decidedly bizarre to offer the case as authority
about th~ relatiOn between individual rights and state power, whether one
was talkmg about federal or state constitutional law. Harlan very Classically assumes that the concept of a power is essentially the same in the
two systems. The argument is that this kind of change is important.
v.
The emergence of Classical legal thought was an instance of the phenome_non of change in the mode of "integration" of consciousness. lntegrat~on refers to an aspect of legal consciousness at a particular moment in
time: the manner in which the different elements that are in it (e.g., the
doctrine of consideration and the rule against perpetuities) fit together
Legal Consciousness
205
Studies
15
into subsystems. The notion is that we can compare and contrast states of
consciousness with respect to this aspect.
One way to do this is to attempt a kind of map of the subsystems
composing a consciousness. We construct a map by asking whether a
legal actor experiences a particular rule or doctrine as a possibly useful
analogy in an argument about some other particular rule or doctrine.
When we feel that an argument for X can draw on the arguments for Y,
then, by definition, these two are parts of a subsystem. If the arguments
for Y would never come to mind or would be dismissed as absurd in the
argument for X, then they are parts of different subsystems. Another way
of putting the same idea is that if your position about X puts a good deal of
moral and intellectual pressure on you to take a particular position with
respect to Y, then the two are part of a subsystem. If you experience no
such pressure, they are not.
One can test the manner of integration of the parts of a legal consciousness through the answers to questons like the following: We have to
decide whether, in the absence of a relevant statute, the federal government can get an injunction from a federal court against a railroad strike on
the ground that the strike has interrupted interstate commerce. First, is it
relevant that the courts would grant an injunction against a state statute
which discriminated against interstate commerce through unequal taxation?Second, is it relevant that a private party, under the private law of
nuisance, can obtain an injunction against a house of prostitution?
Justice Brewer's opinion in the 1895 case of In re Debs answers these
two questions in ways that seem highly implausible to modem critics, yet
were merely "creative," given the legal consciousness of the time. In
Debs, the initial question was whether the federal government had any
business at all protecting the railroads against invasion of private property
rights of a type usually regulated by the states. Supposing some basis of
federal jurisdiction, it was not clear that the strike leaders had violated
any criminal provision of federal law. If they had not, there was no obvious basis for federal action against them; if they had, then the usual notion
would have been that equity would not enjoin a crime, especially when
the injunction would deprive the accused of the right to a jury trial. The
conceptual problems involved in convicting Debs of contempt make the
head swim.
As Justice Brewer approached the case, there was a single important
fact involved: simply by ordering its members to strike, the union leaders
had had the power, as a practical matter, to interrupt interstate commerce
by railroad. Given this factual premise, Brewer (In re Debs, 1895: 577)
posed two questions:
First. Are the relations of the general government to interstate commerce and the
transportation of the mails such as to authorize a direct interference to prevent a
206
16
Critical
DUNCAN KENNEDY
forc.ibl~ obs~ruction thereof? Second. If authority exists as authorit .
affatrs tmphes both power and duty has a cou
' . . . ~ I? gove~mental
injunction in aid of the perfo
' f
rt of equity Junsd1ct10n to 1ssue an
rmance o such duty?
~is answer to the first question begins by defining the relation of federa to state_ power over commerce. It points out that federal
commerce IS absolute within its sphere of subiect matter . . Pd~w:r over
that th t1 d 1
J
JUns IctJon so
states ~a:ee~e ~ovemment acts directly on the citizen in this regard. The
and "the
dir own sphere of authority' over matters of local police
executed ~nt~e ~=~:~~r::.~!u~~e~h~e~~~=~ excep~ where both cannot b~

tl rth th b .
.
power IS supreme. Brewer sets
ceod I e asic Classical notions about the relation between state and
t'
era powers.
sh~! ~~~~~~~l~ri!~~~:ms ~hatdthe only relevance of this discussion is to

.
:~~o~7:~~ed.
IC Ion ase on the fact that commerce and the mails

But Brewer (In re Debs, 1895: 581) concludes with the
It is curious to note the fact that in a large proportion of the c

.
.
state commerce brou h
h
.
ases m respect to mterlegislation in its be ? t tot IS ~ourt the questiOn presented was oft he validity of state
anngs upon mterstate comme
d h
sion has been to declare that it is not w"th" h rce, an t e umform course of decisuch a manner as to obstruct lnt t II m t e competency of a State to legislate in
ers a e commerce [f a St t
h
.
.
a e wn Its recogmzed
powers of sovereignty is impotent to obstruct . t
mhe~ehvoluntary a.ssociation of individuals wit~~n e;:~a~~:~~:~:~~:s~~~ i~~~ that any
~ IC the State 1tself does not possess?
a e as a power
sta~~e:e;h~e~::~;il~;i~;sp~~a~~e~;~ebof ~~e s~~ereign legislative will of a
~b~~~u~ea~~w:~t~f
govemm~nt :i~~~~z~t: =~~e:;s:~so~~e~~:
the federal
commerce
.respect to eac~. The assertion of the identity of the
viduals, sin~~~~: ~~~~~ ~:~ ~elations gives it definition, as against indifederal-state conflicts over ec raw ~n the whole body of case law about
onomic regulatory powers. Nothing could
be more Classical tha th"
analysis wholly i t n fs hcourse ?f argument. The conclusion from an
. n erms o t e relation of the federal commer
the state poltce power is that "th
f
ce power to
unlawful and forcible interfe e ~~ JO~ahl ~overnment may prevent any
.
renee Wit Interstate commerce
h
transportatiOn
of the mails wheth er pu bl.1c or pnvate.
.
or t e
,
Brewer s second question w
h h
as ':" et er the federal government
granted a ower
roceed byp . tt~ remFove obstructions to interstate commerce, could
P
InJUnc JOn. or contemporar th

his answer was th
es, e most stnkmg thing about
e
assert1on
that
the
"militia") t
.
executive can use the army (and the
o remove a pnvate obstruction without recourse to any ju-
Legal Consciousness
Studies
17
dicial process and without statutory authority of any kind. This seemed to
some like a stirring reaffirmation of the inherent power of the central
government to act quickly and decisively against semi-revolutionary leftwing t~ctics. To others, it seemed an invitation to shoot first and ask the
quesJion of legality afterward. The argument has been with us ever since.
For our purposes, it is less important than the next step: Brewer claims
that if the government can, in the absence of a statute, act directly to
suppress an obstruction, then it should be able, still without a statute, to
act by injunction to the same purpose.
The executive may be able simply to act, but a federal court can grant
an injunction only according to law. By hypothesis, there is no statute
covering the obstruction in hand. So what is the basis of the injunction? In
other words, where can the court go for a definition of which private
activities are lawful and which are unlawful invasions of the governmental
regulatory power?
Brewer's answer was to invoke the law of nuisance. The federal government's entitlement to an injunction was defined by the right of public
authorities to abate as public nuisances obstructions to their highways.
And in case the reader had doubts about this body of law as a basis for a
strike-breaking jurisdiction, Brewer (In re Debs, 1895: 592-93) appealed
to the body of private law doctrines defining the relations of property
holders among themselves:
The difference between a public nuisance and a private nuisance is that the one
affects the people at large and the other simply the individual. The quality of the
wrong is the same. and the jurisdiction of the courts over them rests upon the same
principles and goes to the same extent. Of course, circumstances may exist in one
case. which do not in another, to induce the court to interfere or to refuse to interfere
by injunction. but the jurisdiction, the power to interfere, exists in all cases of nuiscance.
Brewer's opinion supplied the total absence of closely analogous precedents with what he took to be logical inferences from precedents about
the relation of federal commerce power to state police power, about the
power of a state to remove physical obstruction from highways and waterways, and about the abatement by injunction of nuisances in general. I
will argue that his frame of mind in so arguing was different from that of
the judges of 1870. His analogies almost certainly would not have occurred to them; but they would have found his assurance of the objective
character of the method of inference quite natural. His approach was also
very different from that of today's Supreme Court. Modern judges have
easy mental access to Brewer's analogies. but little faith in the possibility
of drawing logical inferences from them.
208
18
DUNCAN KENNEDY
VI.
II
I
'
'
'I
I
As the example suggests, it is often useful to divide the question of the

mode of integration into two more specific subsidiary questions. First,
there is the question of how many of the doctrinal areas or fields within
legal consciousness have been assimilated to a particular integrating subsystem or structure that interests us. In other words, there is a question of
horizontal inclusion and exclusion, of incorporation into a particular
schema. Questions like those just put concerning the In re Debs opinion
are designed to measure this aspect, which I will sometimes call the
breadth of integration.
Second, there is the question of the internal structure of items within a
subsystem. Here, the issue is the nature of the relevance of ideas to one
another, given incorporation or assimilation. There are many possible
modes of organization within a subsystem. For example, we may feel that
the minute we know that the states cannot pass laws impeding commerce,
it follows "logically," " necessarily," "obviously," and as "part of the
nature of things" that the federal government can obtain an injunction
against a strike that disrupts interstate rail traffic. Or we might feel that
the state-federal cases were useful "by analogy," and then want to say
something about their aptness or compellingness as such. Or we might see
the two situations as requiring the application of a single principle to quite
radically different contexts, with the relevance of the state-federal cases
lying in that they establish the principle and illustrate the prudential manner of its application.
Each of these modes of interrelation involves the experience of being
bound, to some extent, to do X as an implication of commitment to Y.
Within a subsystem, the positions we take can influence each other in this
way because they are linked through abstractions. If they are treated as
deductions from a single premise, then that premise is the link. If they
influence each other "by analogy," then we have managed to disentangle
certain key aspects from each for comparison. Over time, there are constant changes in the relationships between the particular, concrete, situationally well-defined rules judges use in real everyday cases and those
more abstract, open-ended maxims, principles, doctrinal categories and
general legal concepts (e.g., "duty," "power") that tie the rules together.
I will refer to this set of relationships as the "vertical" dimension of a
subsystem within legal consciousness.
The vertical dimension has the same structure as the horizontal. In
each, there is a distinction between two experiences. Horizontally, bodies
of doctrine are assimilated to the integrating subsystem, or they are not.
In the vertical dimension, there is either a connection between an abstract
proposition (contract protects will of the parties) and a particular rule
(expectation damages), or there is not. By inquiring about the breadth of
209
Studies
Critical
19
Legal Consciousness
inclusion and the degree of abstraction in the differ~nt subsy~tems within

legal consciousness at different times, we can amve at a history of the
:x erience of judicial boundness. It is this history, _as much as that of
a~icular doctrines or philosophies, that powerfully mfluences the place
~f law and lawyers in social life.
VII.
The notion of a vertical dimension of a subsystem within legal conscious, ay be clarified by a description in those terms of our modern
~~~~r~anding of legal reasoning. We begin with the_ idea that legal actors
enjoy a large number of particular rights and are subject to a l~rge number
of particular duties. For example, the law grants me expectatton dama_ges
for breach of contract. It also grants me an action of trespass for nommal
intrusions on my property, and so forth through a list ~f, say'. 300 other
particular rules of law of which I am beneficiary or_ which obhgate me ..
What do these rules have in common? We o~gamze them for convemence, for reasons of utility into larger categones-e.g., o~ce I have 15
rules that all refer to situations of agreement, I .~ay deci~~ for so~e
purposes, to refer to them collectively as rules of contract. The notion
of this type of classification is not that the contract category a~ds or
subtracts anything, by itself, to or from the 15 rules_ I denot~ by It. If I
learn a new rule, 1 will decide to include it or ~xclu?e It by askmg whether
it is useful to include it. And if my purposes m usmg the word c~ange, I
will feel no hesitation in expelling some of my 15 rules and _addmg new
o~es; the fact that I still use the word "contract" to descnbe my new
collection gives me no qualms at all.
.
..
If you ask me the basis of one of my rules, I might answer tha~ It Is a
maximizer of utility. Or I might answer that it protects a natura~ nght, or
that it is a binding precedent, or that it is a statute. ~h~ ~~e th~n~ ~hat I
would not do would be to justify it on the ground that 1t IS Imphcit m t~e
institution of contract." This would make no sense, since that concept IS
no more than my invented category to group some rules that I often want
to refer to together. Nothing is inclu~ed. in ".c?~~~act," ex~ept what we
have decided to put into it. Nothing IS "Imphcit . m the ex1stence of the
category except some purpose making it convement to r~fer to the :Ules
together. "Contract" as a category won't be c_hanged 1f we abolish a
particular component, except that it will have _14 mstead of 15 membe~s.
In the system 1 have been describing, the umts ofthought . ~he oper~~~~~
wholes are dozens of very concrete rules; the category of. c?.ntrac
'
composite.
But w ha t does "operatiVe mean?
It
non-operative,
art1ficml,
.
means that the rule of expectation damages can be_ used to provide solutions to problems, while the category of contract simply records the out-
210
Critical
20
DUNCAN KENNEDY
comes of solutions. For instance, supposing that I believe that it is the

rule that I get expectation damages, and I justify this on the ground that
such a rule_most efficiently promotes reliance on contracts. Now suppose
that there IS a ~le that a seller of a fungible good injured by a buyer's
br~ach on a falhng market can collect the difference between contract
pnc~ and market price. If asked to justify this rule, I might very well state
that It was 'implicit" in the more general rule about expectation damages.
In any case, I would almost certainly acknowledge a much closer relation
between this rule and the more general rule of expectation damages than I
would acknowledge between the latter rule and the principle that pacta
sunt servanda.
It is possible to imagine a very different state of consciousness of the
body of rules integrated in the subsystem of contracts. An observer
might, and during the Classical period many observers did, see all the
rules gathered under the contract rubric as implications of a general principle of freedom _of contract, or one might conceive them all as the working
out. of the social purpose summarized by the notion of contract, or as
designe~ to r~-~nf?rce a natural right of contract, or as included in a single
compo~1te utihtanan calculation about the enforcement of agreements.
. We Simply do not understand the system this way. We apply the deductive m~de,_ the style of reasoning from general to particular, from maxim
to application, fro~ premises to implications, only from the level, say, of
the rule of expectati~n damages to that of contract price less market price.
We see the expectation rule as quite distinct from the rule about duress
?nd it ~oes not occur to_ us to propose a more abstract category as provid~
~ng a smgle, all-embracmg, compulsive rationale. (Contract protects will;
m ~ases of duress,. there is no will to protect; in case of breach, the
equivalent of the Willed performance is expectation damages.) We treat
duress rules _and damage rules in relation to, say, freedom of contract, the
:-vay a <?Iassical observer might have treated contract, tort, and property
m re_Iat~on to the more abstract category of "private taw."
Withm con:racts, there are two different modes of reasoning and argument, retlectmg the two different forms of relationship that may exist
bet~~en ~he rules. Sometimes, a lawyer attempts to show that the correct
?eci~IOn. m th~ ~ase is compelled because the situation is subsumed by
ImplicatiOn Withm a powerful operative rule or category. (Because we
have adopted the expectation rule, we have also adopted the contract and
mar~et rut~.) Sometimes, the lawyer argues for his proposed solution as
restmg on Its own bottom, as valid without compulsive assistance from
ot~er rules of the contract subsystem. (He may do this in terms of utilitartan _social maximization, or natural rights, or morality, or statutory
authonty.)
The point is that between the operative rule and the more particular
Legal Consciousness
211
Studies
21
subrule, there is structure, direction, influence, finally compulsion. Between two operative rules each justified in its own right, or between an
operative rule and a passive, non-operative conventionally defined category ("contract" in the example given above), there is_no nexus except
the looser sense that it is convenient (or not) to deal with them together
when pursuing some extrinsically determined set of purposes.
Suppose that for purely utilitarian reasons we adopt a particular operative rule of contract law felt to have many implications. Now suppose that
on examination it appears that one of the implied subrules costs more than
it is worth, taken apart. A utilitarian may argue that he can consistently
reject the subrule and replace it with something else, while accepting the
operative rule. If this is so (i.e., if the rule-maker feels that he _c~n consistently enforce both the operative rule and the new antagomstic subrule), then the relationship of downward derivation I have been talking
about never existed in the first place. In other words, what I am referring
to is the psychological fact of the feeling of boundness in moving from
general to particular, so that rejection of the particular would b~ felt
inescapably to mean rejection of thegeneral and vice versa. If the JUdge
decides that the breaching buyer must pay only one-half the contract price
less. the market price, we would simply deny that he was enforcing a rule
of expectation damages. What is involved here is a distinction between
two experiences: that of being bound in all consistency to accept A given
B, and that of being able to consider Bon its own merits in spite of having
accepted A.
It should already be clear that a defining characteristic of Classical legal
thought was the assimilation of a great deal of law to a single subsystem
dominated by the concept of a power absolute within its judicially delineated sphere. A second defining characteristic of Classicism, in contrast to
pre-Classical and modem thinking, was the claim that very abstract propositions were nonetheless operative.
I am speaking of across-the-board changes in the way legal reasoning
operated. Duri.ng the period 1850-1900, as the Classical subsystem expanded, there was a general increase, and since about 1900 we have
experienced a general decrease, in the felt operativeness of constitutional
and doctrinal principles. With the disintegration of Classicism, there has
been something close to a disappearance of an experience that appears to
have been common at the tum of the century: that of the compulsion by
which an abstraction dictates, objectively, apolitically, in a non-discretionary fashion, a particular result. As a consequence, there are claims to
an objective basis for judicial review, and to an objective basis for innovation in private law, that seemed perfectly plausible during the period of
the broadening and tightening of the Classical schema, but seem antidemocratic or merely naive in these days of its decadence.
212
Critical
22
DUNCAN KENNEDY
VIII.
~~ii~:/he leg~~ elite may have experienced these changes in terms of a
opposition between full operativeness and complete lack of nexus
b t
s~o:~e~ abs~~action and subrule, it does not follow that the historian
~sc~ e legal consciousness in these terms. We know that a rule
or
. some quantitative
c "td octnne
f 1s within a subsy s tem on1Y bY applymg

an ~no~ 0 . relatedn~ss, ju~t as we determine operativeness by looking at
ru~ ~~~attv~l~ vanable mteraction between abstraction and concrete
. ldn_ tIt be _better to say that there is a general equilibrium system
o f re 1attonshlps
. Iega! consciousness related to
h
' With every e 1ement m
ftv:; ~t f:er, a~.I_e~~t to that minimal degree necessary to lead us to define
' m ac_t, m rather than out of consciousness?
1 ~ my mam concern were a static analysis, comparing states of a given
sys eml or ~~ d~fferent systems frozen at particular moments then the
genera
model
. ht be t he best. My purpose, however,
'
describ equlhbnum
.
. ~~g
is to
deca e a part_lcular _hlstonc_al process: the emergence, flourishing, and
h'! of _a particular mtegratmg subsystem (Classicism) within a particu1ar IStoncal consciousness (th t f th A
.
and 1940) F
h"
a ~ e mencan
legal elite between 1850
. d
or t IS purpose, the 1mage of the grid or network of forces is
ma equate
d b The
. importa nce 0 f th e matenals
for us is much better con~eye f, Y the Image of a microscopic organism that takes to itself and
/ans ~r~s the biologically distinct organisms around it; finds itself transormlle f: Y the very process of assimilating those foreign bodies and
fi na Y a 11 s apart m
to a set of p1eces
which bear no more than an indirect

a nd su bt Ie resemblance e"th
t
h
1
0
vari
.,
.
er
t etr 10tegratmg predecessor or to the
ous weaKer orgamsms the predecessor fed on
I mean to be vag .
h h
.
its contend .,
ue as tow Y_ t e Classtcal subsystem triumphed over
nte . t" et s. My focus here IS on how it happened on the series of
l . .r.tc tons
h"m legal consciousness rather
'
k" amo ng 1d eas Wit
than on the
vanous
mds
of
energy
th
t
.
II
d
h
.
.
point f
.
a lmpe e t e mteractions. Given this initial
tively ~s~~t;d w~at IS sal~en~ is that particular ideas were initially relagraduall a -'. ~ ough w_ltht_n legal consciousness. Then, abruptly or
y, _dlstmct, qualitatively new process took hold of the . th
were drawn mto the integral"
. b. .
.
. .
m. ey
h
mg su system of ClassiCism. In the process
th
. tey c :mged. In the process of causing those changes inthe p.arts the'
m egrat10g subsy t
h
.
structure a. t" ht s :m ~ent t rough Its own transformation of internal

10
' . lg :mng
the mode of interrelatedness.
Th
. .I allon
. of elements conveys the
t . .e notiOn
. of ,mcorpont"o
' 1 n 1. asslml
rans 1ormatton ol the parts a, th
.
.
. s ey_ came 10 contact with the Classical
subsystem Th,
conce ts 1."' _c notiOn. of change m the level of abstraction at which
as a
lcnT1a10. operattve ~onveys the idea that the subsystem evolved
0
a! thou h .c. . ,o. .some
. mean10gful ex ten t It c hanged autonomously from,
111 'csponse to what happ
g
the h" t . .. I
. .,
ened outstd e of It. The description of
Is OIH.:.t process
ts
th
terms. We can identify, and

us cast 10 orgamc
:h
213
Studies
23
Legal Consciousness
follow through time, clusters of ideas that are entities. They develop,
evolve, transform themselves, but are nonetheless somehow "the same
thing," as opposed to other entities, that they were at the beginning.
A GLOSSARY OF TERMS,
BY WAY OF SUMMARY
Consciousness refers to the total contents of a mind, including images of
the external world, images of the self, of emotions: goals and values,
and theories about the world and self. I use the term only in this vague,
all-inclusive sense. It defines the universe within which are situated the
more sharply-delineated concepts that are the vehicles for analysis.
Legal Consciousness is an only slightly more defined notion. It refers to
the particular form of consciousness that characterizes the legal profession as a social group, at a particular moment. The main peculiarity
of this consciousness is that it contains a vast number of legal rules,
arguments, and theories, a great deal of information about the institutional workings of the legal process, and the constellation of ideals and
goals current in the profession at a given moment.
A subsystem within legal consciousnesses is a kind of structure; that is, a
formal arrangement of some of the elements in consciousness. Subsystems are structures that arrange relatively large numbers of elements; e.g., the Madisonian eqiuilibrium theory of federalism. Any
number of subsystems can exist within consciousness at a given moment. Unlike the concept of consciousness, those of structure and
subsystem can be given precise meaning. They are tools of analysis.
Classical legal thought, pre-Classical legal thought, and modern legal
thought: Pre-Classical legal thought flourished between 1800 and !860
and declined between 1860 and 1885. Classical legal thought emerged
between 1850 and 1885, flourished between 1885 and 1935, but was in
rapid decline by 1940. Modem legal thought emerged between 1900 and
1930 and survives to this day.
A subsystem integrates some number of the elements in a legal consdousness; that is, it includes them in a formal arrangement. Such an
arrangement has a horizontal dimension and a vertical dimension. A
description of the horizontal dimension tells us how many of all the
rules in consciousness are within a particular subsystem, and the manner in which they are related to one another. A description of the
vertical dimension tells us how the more and less abstract elements in a
doctrinal area are related.
Assimilation refers to the transformation undergone by elements in legal
consciousness as they are drawn into a subsystem.
Critical
214
Studies
24
DUNCAN KENNEDY
Operativeness is a property of some rules and principles. It is the ability

to generate subrules, more concrete prescriptions that are felt to be
inescapable once the abstraction is assented to.
One of -the functions of a structure within consciousness, and particularly of a subsystem, is the mediation or'the contradictions of experience. The sense of contradiction arises from the persistent existence
within consciousness of elements which seem mutually exclusive.
These can be inconsistent facts, conflicting emotions, or operative
abstractions whose implication contradict one another. Mediation is
the reduction of the sense of contradiction by an arrangement of the
elements that makes the problem less salient.
ACKNOWLEDGMENTS
I am grateful to Morton Horwitz, R.W. Kennedy, Karl Klare, Fred
Konefsky, Gerta Prosser, Henry Steiner, Larry Tribe, and Roberto
Unger for helpful comments. Cedric Chao and Mark Lauritsen researched
expertly.
NOTE
I. This is a slightly revised version of an essay written in 1975. The works of lhering
( 1883), Pollock and Maitland (1968), Levi-Strauss (1966), Piaget (1962), Mannheim (1936),
Lukacs (1971), and Marcuse (1941) ~ere the main influences on the conception of legal
history put forward. I also profited greatly from reading early drafts of Unger ( 1975. 1976)
and Horwitz (1977). Readers interested in the further development of the ideas outlined here
should consult Kennedy (~976, 1979).
j I
REFERENCES
Horwitz, Morton J., The Transformation of American Law, 1780-1860. Cambridge, Mass.:
Harvard University Press, 1977.
Ihering, Rudolph von, Der Geist des Romischen Recht. Berlin. 1883.
In Re Debs. 158 U.S. 546 (1895).
Kennedy, Duncan, "Form and Substance in Private Law Adjudication,"" Harvard Law
Review 89 (1976): 1685-1778.
- - - - , "'The Structure of Blackstone"s Commentaries, Buffalo Law Rtview 28 ( 1979):
205-382.
Levi-Strauss, Claude, The Savage Mind. Chicago, University of Chicago Press, 1966.
Lochner v. New York, 198 U.S. 4~ (1905).
Lukacs, Georg. "Reification and the Consciousness of the Proletariat ... in History and Class
Consciousness, pp. 83-222. Cambridge, Mass.: The MIT Press, 1971.
Mannheim, Karl, Ideology and Utopia. New York: Harcourt. Brace & World. Inc .. 1936.
Marcuse, Herbert, Reason and Revolution. New York: Oxford University Press. Inc., 1941.
Piaget, Jean, Play, Dreams and Imitation in Cl!ildhbod. New York: W. W. Norton & Co ..
Inc., ,1962.
Pollock, F., and F.W. Maitland, The History of English Law. (Two Volumes) Cambridge,
England: Cambridge University Press, 1%8.
Unger, Roberto M., Knowledge and Politics. New York: Free Press. 1975.
- - - - , Law in Modem Society. New York: Free Press, 1976.
'
II
Part III
Substantive Law Examples
[7]
Interpretive Construction in the
Substantive Criminal Law*
Mark Kelmant
Legal argument has a standard, and putatively rational, form: It
states overarching purposes to the legal system, and from those purposes it deduces answers to specific doctrinal dilemmas. This article
examines the standard doctrinal arguments routinely made by judges
1
and commentators on the substantive criminallaw. I do not wish to
challenge any results these commentators may reach, except insofar
as it is important to challenge some universally held beliefs in order
to counter claims th,at there are easy criminal law cases. Instead, I
want to challenge the falsely complacent sense that the argu.ments,
while grounded in politically controversi~l purposes, are deduced or
derived in a rational and coherent fashion once the purposes are settled.2 I will be contending, in essence, that legal argument has two
The author wishes to thank Paul Brest, Tom H~ller,Joh~ Kaplan, Duncan Kennedy,
Bob Rabin, and especially Tom Grey for their helpful comments on an earlier draft, as well as
Don Creach for his research assistance. Errors remain mine. This research was supported by
the Stanford Legal Research Fund, made possible by a bequest from the Estate of Ira S.
Lillick and by gifts from Roderick E. and Carla A. Hills and other friends of the Stanford
Law School. .
t A.B. 1972, J.D. 1976, Harvard University. Associate Professor of Law, Sta,nford University.
1. This article does not review the traditional rationales of punishment-<leterrence,

retribution, detention, or rehabilitation. For general discussions of these traditional rationales, see, 'i, J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAw 296-324' (2d ed. 1960);
H.L.A. HART, PUNISHMENT AND RESPONSIBIUTY (1968); W. LAFAVE & A. ScotT, HANDlOOK ON CRIMINAL LAw 5 (1972); H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION
9-70 (1968); THE PHILOSOPHY OF PUNISHMENT (H. Acton ed. 1969).
For an analysis of a wide range of doctrine seen through the eyes of a deterrence-oriented
theorist, see G. WILLIAMS, CRIMINAL LAw: THE GENERAL PART (2d ed. 1961); for a retributionist's view, see G. FLETCHER, RETHINKING CRIMINAL LAw (1978).
Nor does this article speculate on the origins of particular proscriptions of any criminal
code. &1, 1.g., L. FREIDMAN, A HISTORY OF AMERICAN LAW 256-58, 508-12 (1973); E.
THOMPSON, WHIGS AND HUNTERS (1~75).
2. For discussions of the complacency-inducing, conserva:tizing impact of the perceived
separatedness of legal and political discourse, see Heller ,Is lite Cltanla6k Exemption .from ProjHrty
Tuation an Easy Case! Cmtral Con&mzs A6oul Legal Economics andJurisprudmu, in EssAYS ON
THE LAw AND EcoNOMICS Of LocAL GoVERNMENTS 183,201-07 (D. Rubinfeld ed. 1979);
Kennedy, Tlu S~n~&lllre of Bitulstor~~'s Commmtan'ts, 28 BUFFAW L. REV. 209, 214-19, 346-50
591
218
Critical
592
April 1981]
STANFORD LAW REVIEW
By interpretive construction, I refer to processes by which concrete situations are reduced to substantive legal controversies: It refers both to the way we construe a factual situation and to the way
we frame the possible rules to handle the situation. What then follows logically, if not chronologically, is rational rhetoricism-the process of presenting the legal conclusions that result when interpretive
constructs are applied to the "facts." This rhetorical process is the
"stufr' of admirable legal analysis: distinguishing and analyzing
cases, applying familiar pol:icies to unobvious fact patterns, and emphasizing the degree to which we can rely on the least controversial
underlying values. These rhetorical techniques are so intellectually
complex that there is a powerful tendency to elevate falsely the importance of intellect in actual legal decisionmaking, to fail to see the
interpretive construction that makes the wise posturing possible. I
will look behind (or unpack) this rhetoric to the selection of "relevant" categories atld "relevant" facts. At the same time, I will try to
understand the appeal of the well-argued case, an appeal dearly felt
by so many of my colleagues and students.
Part I of this article briefly summarizes the various interpretive
constructs that pervade substantive criminal law. These constructs
are sometimes unconscious techniques of sorting out legal material
and are sometimes consciously held political or philosophical beliefs,
although even the consciously held beliefs function so that the users
seem unaware of them. Parts II and III discuss the process by which
conscious and unconscious constructs settle doctrinal issues. I will try
to illustrate how each of these interpretive constructs "operates," how
a legal-sounding argument can be made only afler a situation is characterized nonrationally, so that the advocate seems able to deduce a
single result on principle. For example, I will show that issues of the
volu11tariness of a defendant's conduct can be resolved only afler we
have agreed, for reasons outside of our rational discourse, to include
within the relevant time frame some obviously voluntary act that
contributes to the ultimate harm. I will try to demonstrate the unresolved and unresolvable inconsistency in using such interpretive
constructs in standard discourse; for instance, we neither frame time
the same way in all criminal law settings nor do we ever explain why
Su/ultzm;~
in
PrilJOI~
Law Atl.futlicalion, 89
INTERPRETIVE CONSTRUCTION
593
[Vol. 33:591
phases, interpretive construction and rational rhetoricism, and that

the former,. a vital step which undercuts the rationality of the latter,
goes virtually unexamined.
(1979); Kennedy, Fo1111 and

1760-66 (1976).
219
Studies
HARV.
L.
REV.
1685,
Use one time frame or another. Finally, I will suggest whhat rohle
we
h h
t does w at e
interpretive construction plays--w fy ~ e" mte~~:;..e~o what they do
does although I offer my accounts o w y ana y
f h t
with' more trepidation than I have when I offer my account o w a
they are doing.
1 1 d
Though it may appear to some that I have nonran~om y se ecte.
.
h"ch
1 these interpretive constructs are mvolved, this
the cases m w
f "hard"
charge strikes me as unwarranted. First, thoug~ the group ~ I secases I have selected may seem unrepresentatl~e, I have. ~lmp y
lected nearly all of the issues that I cover teachmg a ~raditwnal ~ubi.
that certam
Y
stantive criminal law course, usmg
a good casebook
,
.
was not edited with my concerns in mind. Second, .and ~ore ~~por
t d in Part IV to extend the discussion of mtertantly,
I have attemphe
retive constructs to t e sorts of"easy" cases that legal .commentators
If
bother to discuss, cases with few aprarent
the interpretations I discuss are at work m these easy
,
are at stake in every case.
~ever
I.
p~zzhn,~ =~ct;hey
A GENERAL SUMMARY OF INTERPRETIVE CONSTRUCTS
Le al argument can be made only afler a fact pattern is characterize! by interpretive constructs. Once these
a
single legal result seems inevitable, a result se~mmg y . e uced on
. . 1e. These constructs appear both m conscious
genera1 prmc1p
an und
conscious forms in standard legal discourse. B~for;, exammi~'g m ~;
tail how interpretive constructs reify subs~antlve textbook law,
will be useful to examine them more precisely.
co~str~ct~ o:era~e,
A.
Four Unconscious Interpretive Constructs
.
. constructs sh ape the .way we view
. ddisUnconscious mterpretlve
.
.
"d
t
but
they
are
never
identified
or
discussed
by
JU
ges
f
on
rupt1ve mc1 en s,
or commentators. There are basically f~ur .:orms o unc~ns~~ous c . th
structs two dealing with "time-frammg and two ea mg WI
prob!e:Us of categorization. I discuss unconscious const~~c.ts bef~re
conscious ones because the former are often used to avOI Issues Inherent in the latter, issues that the legal analysts a~e most ~:~n~ t~ be
aware are controversial, perhaps insol.uble, and highly po ItlClze .
1.
Broad and na"ow time flames.
We put people on trial. People exist over time; they have long,
3. S. KADISH & M. PAULSEN, CRIMINAL LAw AND
ITS PROCESSES
(3d ed. 1975).
220
594
STANFORD LAW REYIEW
Critical
[Vol. .'3.'3:591
involved personal histories. We prosecute particular acts-untoward

incidents--that these people commit. But even these incidents have
a history: Things occur before or after incidents that seem relevant
to our judgment of what the perpetrator did. Sometimes we incorporate facts about the defendant's personal history. 4 Other times, we
incorporate facts about events precedin~ or post-dating~' the criminal incident. But an interpreter can readily focus solely on the isolated c~i.minal incident, ~ if all we can learn of value in assessing
culpabthty can be seen wtth that narrower time focus.
Most often, though not invariably, the arational choice between
narrow and broad time frames keeps us from having to deal with
more explicit political questions arising from one conscious interpretive construct-the conflict between intentionalism and determinism.
Often, conduct is deemed involuntary (or determined) rather than
freely willed (or intentional) because we do not consider the defendant's earlier decisions that may have put him in the position of apparent choicelessness. Conversely, conduct that could be viewed as
freely willed or voluntary if we looked only at the precise moment of
the criminal incident is sometimes deemed involuntary because we
open up the time frame to look at prior events that seem to compel or
deter~ine the defendant's conduct at the time of the incident. The
use o~ "time-framing" as interpretive method blocks the perception
that mtentionalist or determinist issues could be substantively at
stake. If one has somehow convinced oneself that the incident nar-.
'
ro~ .ttme-framed f~cus is the appropriate technique for interpreting
cnmmal law matenal, there is simply no background data one can
use, either to provide the grist for a determinist account or to locate a
prior sphere of choice in a seemingly constricted world. The interpretive "choice" between narrow and broad time frames affects not
only controversial, doctrinally tricky legal cases, but also "easy"
cases, because narrow time-framing fends off, at the methodological
level, the possibility of doing determinist analyses.
2. Dz{joined and unified accounts.

A second unconscious interpretive construct relating to time involves the tension between disjoined and unified accounts of incidents. Many legally significant situations seem to require a
.
~ For example, we incorporate facts about a defendant's personal history in raising the
msamty defense.
5. E.g., in raising the defense of duress.
6. E.g. , in raising the defense of abandonment.
April 1981]
Studies
221
595
somewhat broad time frame, at least in the sense that we feel we

must look beyond a single moment in time and account, in some
fashion, for some clearly relevant earlier moment. The ea~lier "moment" may be the time at which a defendant made some JUdgment
about the situation she was in, some judgment that at least contributed to the ultimate decision to act criminally. For instance, the defendant negligently believes she must use deadly force to defend
herS'elf and then she intentionally kills someone, having formed that
belief. Alternatively, the earlier moment may simply be the moment
at which the defendant initiated the chain of events that culminated
in criminal results. For instance, the defendant may shoot at X, but
the bullet will miss X and then kill Y, an unforeseeably present bystander.
Once we agree to look at these earlier moments, we must decide
wliether to disjoin or unify the earlier moment with the later moment. We can treat all the relevant facts as constituting a single incident, or we can disjoin the events into two separate incidents.
Dnce this arational interpretive decision is made, the question of
criminal culpability is forever biased. Is a negligent decision to kill
followed by an intentional killing a negligent or intentional act? Is
the person who misses X and shoots Y someone who commits two
crimes--attempted murder of X plus, say, reckless homicide of Y-<:>r
one crime-an intentional murder of a person? Sometimes, unifying
two arguably separate incidents allows us to avoid making a hard-tojustify assertion that the arguably second incident or decision was
determined by the first. Often, other interests are at stake in separating or joining a series of incidents.
3. Proad and na"ow lJlews
of intent.
A third unconscious construct involves broad and narrow views of

intent. Each time someone acts, we can say with fair confidence that,
in the absence of some claim of accident, he intended to do precisely
the acts that he has done. But we have difficulty categorizing those
acts, because an individual set of acts may, in the observer's eyes, be
an instance of a number of different categories of acts. For example,
when the defendant intends to undertake certain deeds constituting a
particular crime, it feels both misleading in significant ways, and perfectly proper in others, to assert that the defendant intended the particular crime. On one hand, it is odd to think of actors as viewing the
world in criminal law categories when they act. On the other hand,
it is equally odd to think of actors as focusing in their consciousness
222

Critical
596
STANFORD LAW REVIEW
[Vol. 33:591
only on the most precise physical motions they undertake. Thus,

when we talk of the requisite intent to commit assault wzih intent to
commit murder, it is peculiar to think ~ithn- that the defendant must
have mentally focused his conduct on the broadly interpreted min~ of
murder (with all its complications, e.g. , that he must intend to act
with malice, premeditation, nonprovocation, nonjustification, etc.),
or that it is sufficient that he simply focused on the physical motions
which would predicate the crime (e.g. , pulling the trigger on the gun,
which we may deem murder if, in fact, he acted with what we call
malice, nonprovocation, etc.).
Similarly, a defendant may perform suspicious acts not in themselves criminal or abandon a particular criminal attempt. We wonder whether the defendant, in the first case, can accurately be
thought of as intending only the precise acts he committed or
whether, in some broader sense, he i'ntend~d some apter deeds which
we would deem criminal acts. Likewise, in the second case, we wonder whether the defendant abandoned only the one criminal incident
or abandoned the criminal category of which that incident is but an
instance.
4.
Broad and na"ow oi~ws
of th~ difendant.
A fourth unconscious construct is that the interpreter may view

defendants in broad or narrow terms. Each defendant is a unique
individual, with a unique set of perceptions and capabilities. Every
crime is committed in a unique setting. At the same time, every defendant has general human traits, and is thus a representative of the
broader category of human beings. Similarly, the setting in which a
crime is committed is an instance of those settings in which the crime
is generally committed, and the features of the more general situation
could be ascribed to the particular situation. By varying our interpretive focus, by particularizing at times and categorizing at others,
substantive criminal law reaches all manner of results. Shifts in these
perspectives underlie efforts to make doctrinal categories appear
more cogent than they actually are.
B.
Conscious Intn-pretioe Constructs
Just as unconscious constructs shape the way we view disruptive

incidents, conscious constructs settle doctrinal issues while obscuring
the nondeductive natur~ of legal discourse. I discuss two. forms of
conscious construction: the choice between intentionalistic and deterministic accounts of human conduct, and the choice between stat-
April 1981]
Studies
223
597
ing legal commands in the form of precise rules or vague ad hoc

standards. While judges and commentators seem to b~ awar~ of
these constructs, they discuss them only as genn-al ph1losoph1cal
themes in the criminal law.
But I will argue that any consciously stated "grand" choices elevating intentionalism or rules, determinism or standards, as the solution to legal dilemmas is inevitably partial. The "victory" of one
framework or the other is a temporary one that can never be made
with assurance or comfort. Each assertion manifests no more than a
momentary expression of feelings that remain contradictory an~ ~n
resolved. Most significantly, arguments based on these ~xphc1tly
political issues feel less "legal" than ar~ments grounde~ m ~radl
tional doctrinal categories. Perhaps more Important for ~h1s art1c~~ I
will also argue that the un-se!fconscious assertion of t~e mexorab~hty
of applying one or the other ~oles .in these cqntrovers1es to a pa.rucular setting settles many doctrmal Issues, though the pro~lemauc nature of chosen doctrine would become more appar~nt 1f th~ use of
interpretive consructs surfaced. In this sen~e, these mterpreuve constructs function just like the four unconsciOus constructs. Though
they are conscious political positions when emplo~e~ at a general
level, they may function as unreasoned presuppositions tha~ solve
cases while obscuring the dissonant, fundamentally nondeduct1ve nature of legal discourse.
1.
Intmti'onalism and detmninism.
Intentionalism is the principle that human condu~t r~sults f~om

free choice.7 An intentionalist interpretation of an mc1dent g1ves
moral weight to autonomous choice and expresses t~e in~eterminacy
of future actions. 8 Determinism, on the other hand, 1mphes that ~u.b
sequent behavior is causally cor~nected to p.rior events. A deterr~umst
interpretation considers behavior by lookmg backward, and It_ expresses no moral respect or condemnation of these predetermmed
1. Intentionalism gives "an account of experience which looks forward from the rno
ment of human choice." Heller, supra note 2, at 237.
8. An intentionalist expresses "the indeterminancy of futu~ action, the ~tential. for a

free exercise of intentional action implicit in indeterminate behavior. Necessarily, ~n. ~xsten
tial phenomenology must take seriously the con.ceP_ts. of intentionality and r~~nsbhty and
an ethical theory which gives moral weight to mdtvdual, autonomous cho1ce. /d.
For a fuller account of responsibility-demanding existentialist phenomenology, see H.
fiNGARE1TE, THE SELF IN TRANSFORMATION:
LIFE OF THE SPIRIT 162-69 (1963).
PSYCHOANALYSIS, PHILOSOPHY ANO Tilt::
224

598
STANFORD LAW REVIEW
225
Studies
(Vol. 33:591
acts. 9
M?st ba~ic iss_ues of the ~riminallaw are issues of the applicability

of an mtent10nahst model. Notions of blameworthiness and deterrence'' are both based on the assumption that criminal actors make
intention~!. ~hoices. Of co~~e, c:iminal jurisprudence acknowledges
the plaus1b1hty of a determm1st discourse, but it acts as if the intentio?'alist_ discourse is ultimately complete, coherent, and convincing. 12
It IS qmte apparent, however, that standard criminal law doctrine
?ften. interprets facts in deterministic modes. For example, duress,
msamty, and provocation are determinist excuses for otherwise criminal conduct.
2. Rules versus standards.

An overarching conflict within our legal system pertains to the
form that legal pronouncements should take. 13 Our legal system
bounces fitfully between "clearly defined, highly administrable, gen9. In a determi~ist discourse, the inte~reter "reconsider(sJ our behavior by looking
ba~kward across a senc:s of acts . . . (rearra~gtng) these acts by positing relations or theories
whch ~emo~st~ate th~1r ~nnectedness. Th1s connectedness however implies their necessary
successon,_ t e ete:mmat10n of the later events once the sequence is grasped. . . . What is
predetermmed ments no moral respect or condemnation." Heller, supra note 2, at 237.
10.. T~e standard text writers all must at some point refute the relevance of determinism
to the cnmmal law. See, e.g., G. FLETCHER, supra note I, 6.4.3, 10.3.1; J. HALL, supra note
I, at 455-60; H.L.A. HART, supra note I, at 28-31, 179-85; H. PACKER, supra note 1 at 74-75
G. WILLIAMS, supra note I, 173, at 547-49.
'
'
. ~I. Environmental and genetic factors determine people's relative tastes for criminal
activit~, ~ut they generally do not render. people utterly insensitive to punishment. Thus, a
determm~st who fe~ls ~ncomfortable blammg someone prone to criminality might still find it
worthwhile to pumsh m order to lower the amount of crime. Full-blown deterrence theorists
gene:ally su~p~se _a g:eat d~l of rati~n_a_lity in the de~ision to pursue criminal ventures. E.g.
Ehrhch, Partmpallon zn 11/egz~z"'.a/e Actzuz/us: A Tluore/Jcal and Empirical/nuestigation, 81 j. PoL.
~N. 521 ~1973). ~e~erm1msts are more skeptical about whether many criminals act so
rauonally, sm_ce ~n mdilference to consequences may be one of the prominent determined
effec~ ofd~cpnv;,uon. As a result, the price effects of higher punishment may be dimmed. &e,
e.g.'. ar mer, 'he Purposes if Criminal Punishment, 21 Moo. L. REV. 117, 122-23 (1958) Califor_m~ Assembl~ Committee on Criminal Procedure, Progress Report: Deterrent Eff;cts of
Cnmmal Sancuons 7 (1968).
12. Su~ e.g., State v. ~ikora, 44 N.J. 453, 470, 210 A.2d 193, 202 (1965) ("Criminal
blameworthmess cannot be ;udged on a basis that negates free will and excuses th IIi
h II
ll

"d
e o cnse,
w o y or parua y, on opm10n ev1 ence that the offender . . . was predetermined to a t th
way he did at that time."); id. at 475-76 210 A.2d at 205 1\Aleintraub CJ
c. e)
"[Th
.
'
\..
, .. , concurnng
(
. e psych1atnst] t~a~es. a man_'s every deed to some cause truly beyond the actor's own
~akmg.. : . Now th1~ IS mterest~ng, and ~ will not quarrel with any of it. But the question
IS whether 1t has anythmg to do With the cnme of murder. I think it does not."); H. PACKER
supra note l, at 74-75.
'
13. A fuller acCO!Jnt of this c?nftict, assessing it as central to our legal culture, is given in
Kennedy, Form and Substance m PnlNll~ lAw AdJudication, 89 HARV. L. REV. 1685 (1976).
April 1981]
599
eral rules" 14 and "equitable standards producing ad hoc decisions

with relatively little precedential value." 15
Rules seem, on the positive side, capable of uniform and non prejudicial application. They define spheres of autonomy and privacy
and spheres of duty by giving clear notice to citizens of the legal
consequences of their conduct. The void-for-vagueness and strict
construction doctrines both resonate in the rule-respecting liberal tradition. On the negative side, rules. will inevitably be both over- and
underinclusive according to the purposes reasonably attributable to
the law.t 6 This not only leads to random injustice when particular
culpable parties are acquitted 17 and nonculpable parties are convicted, 18 but it enables people to calculate privately optimal levels of
undesirable behavior that are within the precise confines of the law. 19
Standards alleviate the problems of nonpurposive applications of
legal commands to particular cases. On the other hand, they may be
difficult to administer or may be enforced in a biased, unequal, and
uncertain fashion. The use of standards in the criminal law is rampant. Whether we are talking about requirements of "malice" ~n
homicide law, looking at regulatory statutes that are openly vague m
proscribing unreasonable restraints of trade, 20 or considering the use of
discretion in prosecution and sentencing, it is difficult to deny that
avoiding vagueness is more important as ideology than in practice.
In any argument within our culture, both of these modes of framing
legal commands are simultaneously appealing and unappealing;
14. /d. at 1685.
15. /d.
16. Take a simple example: a statutory rape law designed to protect innocent girls from
the sexual pressures of the sophisticated. In its rule form, the age of consent is given as, say,
16. Some girls under 16 will be perfectly sophisticated, however, and some over 16 will not
be.
17. &.-,~.g., Lewis v. Commonwealth, 184 Va. 69, 34 S.E.2d 389 (1945) (defendant not
guilty of disorderly conduct on a bus when disorderly conduct statute referred only to ?rs,
trains, and cabooses); Rex v. Bazeley, 168 Eng. Rep. 517 (1799) (when embezzlement was not
con\emplated by traditional legal category of larceny, bank teller who approp~iated a note
found not guilty because it was in his possession when he appropriated it).
18. Su, ~.g., Regina v. Dullley & Stephens, [IB84J 14 Q.B. 273, 288 (lifeboat passengers
who killed a sick boy to survive found guilty of murder, because "compassion for the criminal
. . . [must not] change or weaken in any manner the legal definition of the crime").
19. This problem is better recognized in private law than in criminal law. It is perhaps
the dominant problem in tax law, where the courts affirm the rights of taxpayers to minimize
tax liabilities as long as they follow the rules, e.g., Gregory v. Helvering, 293 U.S. 465 (1935),
but recharacterize transactions when taxpayers' characterizations fall outside of what "the
statute intended." Knetsch v. United States, 364 U.S. 361, 365 (1960) (quoting Gregory v.
Helvering, 293 U.S. at 469).
20. &e, ~.g., 15 U.S.C. 45(a) (1976 & Supp. III 1979).
226
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STANFORD LAW REVIEW
Critical
[Vol. 33:591
neither has killer force. 21 Because neither position can dominate the
other, legal arguments about the desirable form of legal commands
are not jus~ oscillating, unsettled, and unbalanced, but the choice of
one r~olutwn o~ the other ultimately feels like a product of whim-a
reflectiOn of one s most recent overreaction to the follies of the previously adopted form.
II.
UNCONSCIOUS INTERPRETIVE CONSTRUCTS
Having examined the interpretive constructs in general, I shall

now ~pply the four. unc~ns:ious constructs to doctrinally "hard"
cases m th_e substantive cnrnmallaw. This part illustrates how each
construct IS used and how certain results are apparently mandated
on_ly aft~r an unwarranted interpretation is made. I shall also try in
this ~ectwn to ac~ount for the appearance of particl.;llar constructs in
particular fact s1tu~tio~ .. Though I am generally skeptical of accounts o~ constructiOn, It 1s n;tost often my belief that interpretive
constructiOn appears to enable the legal analyst to avoid dealing with
fundamental political problems.
A.
Broad and Na"ow Time Frames

1.
601
narcotics because their addiction rendered them choiceless. 23 Since

punishment is inappropriate unless its deterrence or retributory aims
are met, it is inapt here.
Fully addicted people truly rnaynot be deterrable by the prospect of punishment at the moment when they decide to possess or use
drugs. In Judge Wright's narrow view of the relevant legal material,
the defendant may be nondeterrable because his then-pressing desire
makes him oblivious to the costs imposed by state punishment. But
once we broaden the time frame, we can see that even the particular
use by the addict in Moore would have been less likely if addicts were
punished. Assuming, as one must in applying deterrence theories,
that actors calculate rationally and try to avoid pain, we know that if
a person can be punished at any future time he uses drugs, not just in
the pre-addiction period, he will be less prone to start using drugs.
But, of course, if the person who ultimately carne to trial had not
made the initial uses, he would not have become an addict or made
the particular use we are concerned with. 24
Precisely the same objection can be made to Judge Wright's argument that the status of addiction cannot be deemed blameworthy.
Even if we should not blame people for being sick, we may well blame
Na"ow time-:framing.
Gene:ally speak~ng, narrow time frames buttress the traditionally

assert:d mtentwnahsrn of the criminal justice system. In a number of
doctrm_al are~, though, conduct is deemed to be involuntary or
oth~rw1se outs1de the responsibility of the defendant even though, if
we m~erl?ret the relevant legal material as including earlier decisions
(that 1s, 1f we broaden the time frame), we can interpret the course of
conduct that culminates in criminal harm as chosen.
. Status_ ZJersus conduct distinction. The tensions of time-framing are

evident
m the status
versus conduct distinction In Uni'~-J
co, '
M
22 J d
.
~u u.a.es ZJ.
oore '. u ge ~nght, in dissent, argued that a statute proscribing
~arcot1cs possess1?n shoul~ not apply to drug addicts, because possesSIOn merely rn~mfests the1r status of being addicted. He contended
that drug addicts cannot be deterred from or blamed for possessing
.
April 1981]
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~I. Much of the te~nique of Socratic first-year law teaching involves the teacher driv-
m~ the student. t~wards a rule position and countering with a parade of horrible cases in
w ted actors wtthm the culture abuse the precisely framed rules, or driving the student towar
stand ard and countermg
a parade of horrors
b s advocacy
h "
I of a" vague ' purp~stve
wtth
a out t e non egal, fiat-based, btgoted system the student has created
.
22. 486 F.2d 1139 (D.C. Cir. 1973).
' 23. Judge Wright stated, "[R]ecognition of a defense of 'addiction' for crimes such as
possession of narcotics is consistent not only with our historic common law notions of criminal
responsibility and moral accountability, but also with the traditional goals of penologyretribution, deterrence, isolation and rehabilitation.
" . . . [T)he retributive theory of criminal justice looks solely to the past . . . . Revenge,
if it is ever to be legitimate, must be premised on moral blameworthiness, and what segment
of our .society would feel its need for retribution satisfied when it wreaks vengeance upon
those who are diseased because of their disease?
"The most widely employed argument in favor of punishing addicts for crimes such as
possession of narcotics is that such punishment or threat of punishment has a substantial
deterrent effect. . . . [But d]eterrence presupposes rationality . . . . In the case of the narcotic addict however the normal sense of reason, which is so essential to effective functioning
of deterren~e, is over~me by the psychological and physiological compulsions of the disease.
As a result, it is widely agreed that the threat of even harsh prison sentences cannot deter the
addict from using and possessing the drug." /d. at 1242-44.
24. Thus, to use obviously artificial numbers, assume the person on day one prcvalues
all future drug uses at 100 and prevalues punishment for use at (-200). ltowcver, there is
only a I in 4 chance of being caught using before he is addicted. lte may then use the drugs,
since the expected value of use (100) exceeds the negative expected value of punishment (1/4
X (-200) or (-50)). Use may lead to the pressing desire of addiction, so at the time of the
particular use for which he is arrested, drug use may have reached a value of, say, 50,000, so
that, in Wright's terms, he is nondeterrable.
If a potential drug user knows he will be punished even if addicted, he may never use
drugs at all. Thus, even postaddiction drug use is less likely if we broaden the time frame to
include the defendant's earlier decisions to use drugs.
Critical
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STANFORD LAW REVIEW
[Vol. 33:591
them for becoming sick. The addict may seem blameless in the narrow
time frame, but in a broader time frame he may well be blameworthy. Certainly, it is not at all uncommon or bizarre for a parent to
blame (and punish) a child who goes out of the house in a storm
without adequate raingear for getting a cold, even though the same
parent would not punish the child for the "status" of being ill. Venereal disease is another clear case: That VD is generally considered a
disease hardly precludes us from blaming its victims, because they
contracted it through earlier voluntary acts. 25
Judge Wright dismissed, in conclusory fashion, the possibility of
using a broader time frame in assessing retributive demands. 26 Presumably, Judge Wright used a very na"ow time frame here to reach
the determinist result he would like to reach by using the very
broadest one: I surmise that the judge actually believes that the initial
"voluntary" drug uses are themselves determined by social and environmental pressures that predate those early uses. Despairing of the
possibility of applying a very wide time focus and a more general
determinism, he avoided this political confrontation by constructing
the legal "material" in terms of the traditional incident focus, a focus
which the majority implicitly rejected in the foll<?wing conclusory
terms:
The gist of appellant's argument is that "the common law has long
held that the capacity to control behavior is a prerequisite for criminal responsibility."
It is inescapable that the logic of appellant's argument, if valid,
would carry over to all other illegal acts of any type whose purpose
25. In his concurring opinion in Robinson v. California, 370 U.S. 660, 676-78 (1962),
Justice Douglas argued that it is unconstitutionally cruel and unusual to punish a person for
being an addict, since addiction is an illness. But why are we morally duty-bound to treat,
rather than to condemn, sick people, if we believe that having an illness is not an inevitably
disconnected incident, but may be part of an historical process to which the ill person voluntarily contributed?
Besides the time-framing issue, his argument is ambiguous in two other ways: First, what
does it mean to say that addiction is an illness? If, for instance, an illness is something doctors
can treat, would addiction count? Second, even if addiction is an illness and illnesses must be
treated, how do we know that punishment is not a form of treatment or that traditional
"treatment" is not, at least when unwanted, punishment? &e In re De La 0, 59 Cal. 2d 128,
378 P.2d 793, 28 Cal. Rptr. 489 (1963) (uph9lding mandatory civil commitment program for
addicts because it was not deemed punishment under Robinson).
26. Judge Wright noted that "there may have been a time in the past before the addict
lost control when he made a conscious decision to use drugs. But imposition of punishment
on this basis would violate the long-standing rule that '[t]he law looks to the immediate, and
not to the remote cause; to the actual state of the party, and not to the causes, which remotely
produced it.'" 486 F.2d at 1243 (quoting United States v. Drew, 25 F. Cas. 913, 914 (C.C.D.
Mass. 1828) (No. 14,993)).
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603
was to obtain narcotics.2 7
If we take it as given that we must punish the people we are now

punishing-and a lot of those people are stealing to obtain n~r~ot
ics-then we must avoid Judge Wright's incident-based determm1sm.
But this is simply a functionalist complacency, the belief that things
are right because they are done: a world view hardly more or less
acceptable than any other political assertion (e.g. , things ca~ be presumed to be wrong, if done, because the world we see IS pretty
crummy), and hardly the outcome of piercing legal analysis.
The voluntary act requirement. Unconscious shifting between broad
and narrow time frames also arises in applying the criminal law's
voluntary act requirement. In Martin v. State / 8 police officers arrested the defendant at his home and took him onto a public highway, where the defendant used loud and profane language. He was
convicted under a statute prohibiting public exhibition of a drunken
condition. The appellate court ~,;eversed, holding that the defendant
was involuntarily and forcibly carried to the public place by the arresting officers. The court concluded, uncontroversially, that an in30
voluntary act cannot give rise to liability. 29 But in People v. Decina ,
the court sustained the defendant's conviction for negligent homicide, though at the time his car struck the victims, he was _unconscious as a result of an epileptic fit, not voluntarily operatmg the
vehicle. The court held that the defendant was culpable because he
had made a conscious decision to drive, knowing that an epileptic
attack was possible. 31
The hidden interpretive time-framing construct becomes visible
when one tries to square Martin with Decina. In Decina, the court
opened up the time frame, declaring that if the defendant commits a
voluntary act at time one wliich poses a risk of causing an involu~
tary harm later--drives the car knowing he is a blackout-prone epileptic-then the second act--<:rashing while unconscious-will be
deemed voluntary. But the defendant in Martin, as well, may have
done something voluntarily (before the police came) that posed a risk
that he would get arrested and carried into public in his drunken
state. While it is plausible that Martin was arrested on an old war27.
28.
29.
30.
31.
486 F.2d at 1145.

31 Ala. App. 334, 17 So. 2d 427 (1944).
/d. at 335, 17 So. 2d at 427.
2 N.Y.2d 133, 138 N.E.2d 799, 157 N.Y.S.2d 558 (1956).
/d. at 139-40, 138 N.E.2d at 803-04, 157 N.Y.S.2d at 565.
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STANFORD LAW REVIEW
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rant 32 and could not foresee that he would wind up in public on this
occasion, it is quite possible that the defendant was arrested for activity he was engaging in at home: for instance, beating his wife. 33
Why did the court not consider saying that the voluntary act at time
one (wife beating) both posed a risk of and caused a harmful involuntary act at time two (public drunkenness) and assessing the voluntariness of the alleged criminal act with reference to the wider timeframed scenario? It cannot be that the involuntary, harmful act at
time two was unforeseeable: 34 The probability of an epileptic blackout is almost certainly far lower than the probability of ending up in
public after engaging in behavior likely to draw police attention. Arguments that we are less concerned with people "thinking ahead" to
avoid public drunkenness than unconscious driving seem inadequate
32. In a truly intentionalist discourse, the hypothetical fact that Martin did not foresee
arrest on the particular occasion that he was drunk (e.g. , when he was arrested on a past
warrant) would still not preclude a finding of voluntariness, at least if the arrest was valid.
(An invalid arrest, as in Finch v. State, 101 Ga. App. '73, 112 S.E.2d 824 (1960), would make
the p_ublic appearance ~hat follows seem involuntary in a broad time frame as well.) One of
the nsks. one (volunt~nly) takes when one performs acts for which one ultimately may be
arrested ts that one wtll someday be forced to go places with the police, when they want to go
and not when the individual wants to. This sort of broad voluntary reading of human in ten
tion typifies traditional assumption of risk doctrine, in which a worker is deemed to contract
away his rights to a safe workplace when he makes a deal that includes, but makes no explicit
reference to, the abnormal risks of the workplace.
. 33. C::Ourts ?o not examine whether the defendant's voluntary acts brought the police to
hts home JUSt pnor to the arrest. Instead, they unconsciously use a narrow time frame in
assessing voluntariness. Cases where the defendant clearly took such recent acts, e.g., Mar~all v. State, 70 Ga. App. 106, 27 S.E.2d 702 (1943) (defendant arrested after a reported
dtsturbance at a soda plant); People v. Lane, 8 Misc. 2d 325, 32 N.Y.S.2d 61 (1942) (defendant taken from a frien~'s apartment by police after he began fighting with the friend's guest);
People v. Brown, 64 Mtsc. 677, 120 N.Y.S. 859 (1909) (defendant hauled away from a private
house because he had been "licking his horse''), read just like the cases where the root of the
public appearance is unsure or unclear, e.g., Martin v. State, 31 Ala. App. 334, 17 So. 2d 427
(1944); Gunn v. State, 37 Ga. App. 333, 140 S.E. 524 (1927); Reddick v. State, 35 Ga. App.
256, 132 S.E. 645 (1926).
Two recent California cases do broaden the time frame in looking at the voluntariness of
a public appearance. People v. Perez, 64 Cal. App. 3d 297, 134 Cal. Rptr. 338 (2d Dist.
1976)f People v. Olso_n, 18 ?ai. App. 3? 592,96 Cal. Rptr. 132 (2d Dist. 1971) (both deciding
questtons of suppressmg evtdence obtamed after arrest, rather than validity of drunk-in-public conviction).
34. First, one must note that the court made no foreseeability arguments; the interpretive characterization of the situation precluded the need for such an argument. Second in
courts using narrow time frames, a defe~dant who is involuntarily brought into public, e~en
when he could clearly foresee when that mvoluntary appearance would occur, will be acquitted of a drunk-in-public charge. See, e.g., Moody v. State, 131 Ga. App. 355, 206 S.E.2d 79
(1974) (defendant brought by deputy sheriff into public in response to subpoena; court did
not see that although presence in public may not have been voluntary over the short run it
was clearly foreseeable).
'
April 1981]
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as well; the penalties for public drunkenness are presumably set lower
to reflect the relative lack of gravity of the offense. Ultimately, the
Martin finding of voluntariness "works" not because it is "right," but
because all the hard points disappear in the initial interpretive construction of the potentially relevant facts. 35
Hostilz?J to strict lzabilz?J. Commentators who attack the use of

strict liability in criminal law invariably use narrow time-framing.
They imply that the defendant deemed guilty of an offense which
allows no mental state excuses as to some element of the crime is
treated unjustly because he could somehow not avoid criminality.
Look, for instance, at H.L.A. Hart's comments on criminal responsibility:
The reason why, according to modern ideas, strict liability is odious, and appears as a sacrifice of a valued principle . . . is that
those whom we punish should have had, when they acted, the nor mal capacities . . . for doing what the \aw requ~res an~ ~bstai?ing
from what it forbids. . . . [T]he moral protest IS that 1t 1s morally
wrong to punish because "he could not have helped it" or "he
could not have done otherwise" or "he had no real choice."36
But this implication is not valid. Often, the actor could readily avoid
35. The case ultimately may be better understood as involving issues traditionally raised
either as entrapment, see notes 135-36 infta and accompanying text (Z:e., the police may simply be too entwined in this particular violation to sustain a conviction), or justification, see
notes 192-93 infta and accompanying text v:e., we actually want Martin to violate the drunkin-public law in these particular circumstances, beeause, on balance, we like obedience to
police much more than we dislike public drunkenness). The interpretive construction may
obviate the need to apply inevitably vague entrapment and justification doctrines; thus, it
expands the core of the criminal law covered by rules rather than ad hoc standards.
36. H. L.A. HART, supra note I, at 152.
See J. FEINBERG, DoiNG AND DESERVING 111-12 (1970) ("(S)trict liability to impnsonment
, .. 'has been held by many to be incompatible with the basic requirements of our AngloAmerican, and indeed, any civilized jurisprudence.' . . . [T]he reason why strict liability to
imprisonment (punishment) is so much more repugnant to our sense of justice than is strict
liability to fine (penalty) is simply that imprisonment in modern times has taken on the symbolism of public reprobation. . . . We are familiar with the practice of penalizing persons
for 'offenses' th9 could not help. It happens every day in football games, business firms, traffic
courts, and the like. But there is something very odd and offensive in 'pumshing people for
admittedly faultless conduct. .. .'') (second emphasis added) (footnotes omitted).
All the major commentators, with the partial exception of Wasserstrom, Strict Liability in
the Criminal Law, 12 STAN. L. REV. 731 (1960), share this hostility to strict liability. See, e.g.,
G. FLETCHER, supra note I, 9.3, at 717-36; J. HALL, supra note I, at 342-59; H. PACKER,
supra note I, at 121-31; G. WILLIAMS, supra note I, 89; Wechsler, The Challenge of a Model
Penal Code, 65 HARV. L. REV. 1097, 1108-09 (1952). The Model Penal Code predicates criminality only on negligence, recklessness, purpose, or knowledge. MODEL PENAL CODE 2.05
(Tent. Draft No. 4, 1955) provides that any strict liability "crime" can be no worse than a
"violation," with no nonmonetary penalties.
232
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STANFORD LAW REVIEW
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li~b!lit~;--so ~hat all m~taph~rs of '~unobeyable laws," or "helpless

VIC~Ims a_re mappropnate-1f we simply broaden the time frame.
Chief Justice Burger did precisely this in Unzied States v. Park .37 Park
sustained a conviction of a responsible corporate official for shipping
ad~Ite;,ated food.' thoug_h the official had not been "aware of wrongdomg. The Chtef Justice argued that corporate officials voluntarily
assume a duty to ensure that violations will not occur when they take
on managerial responsibility. 38
~he pro~l:~ is further illuminated by one of the classic-and
classically cnticized-applications of strict liability in the criminal
law: statutory rape cases. Assume that the age of consent is 16. Defendant admits having sexual intercourse with a girl who is 15, but
asserts that he reasonably believed she was 16. The narrow timefra~ed argument against liability is that the defendant, at the time
of mtercourse, reasonably perceived the girl to be 16; given the def:ndant'~ re~ona~l~ perception, he did not act in a culpably antisocial fashiOn; smce It IS legally acceptable to have sexual relations with
16-year-olds, to punish the defendant is to punish him when he "did
all that could reasonably be expected of him to avoid criminality."39
T~e narrow time focus o_bliterates the difficulties of deciding what
constitutes a reasonable behef. Should our decision focus on percep37. 421 u.s. 658 (1975).
38. Chief Justice Burger wrote: "Thus Dotlerweich and the cases which have followed
reveal that in providing sanctions which reach and touch the individuals who execute the
corporate mission--:md this is by no means necessarily confined to a single corporate agent or
employee-the Act 1mposes not only a positive duty to seek out and remedy violations when
t~ey oc?ur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible
co~porate agents are. beyond _question demanding, and perhaps onerous, but th9 au no more
strz~gmt than the_publzc has a nght to exjMct of those who voluntan'(p assume posziions of authority in
busmess enterpnses whose services and products affect the health and well-bein of the ublic
that supports them . . . .
g
P
"The Act does not, as we observed in Dotterweich, make criminal liability turn on 'awareness of some wron;'l'doing' or 'co~scious.fraud.' The _?uty imposed by Congress on responsible
c?rporate agents 1s, we_ e~ph~tz~, one that requires the highest standard of foresight and
v1gliance, but the Act, m Its cnmmal aspect, does not require that which is objectiudy impossible "
!d. at 672-73 (emphasis added).
39. For an illustration of this vi~w, sP.e People v. Hernandez, 61 Cal. 2d 529, 393 P.2d
673, 39 Cal. Rptr. 361 (1964), the maJor case reversing a conviction for statutory rape when
the defendant was not allowed to produce evidence that he had a good faith reasonabl b r f
th a t th ~ " VICtim
. . " was ~ast. t he ~ge o f consent. "[I]f [defendant] participates 'in a mutuale act
e te
of
sexual mtercourse, behevmg hts partner to be beyond the age of consent with
bl
1 b . f h
.
,
reasona e
d r
groun
1 s wrk sue 1 e11e
k ,,. w ere 1s his criminal intent? In such circumstances , h e h as not consctous Y ta en any rz.r. !d. at 534, 393 P.2d at 676, 39 Cal. Rptr. at 364 (emphasis added).
April 1981]
233
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tions available at the moment of seduction,40 or do we require that

40. The primary time-framing problem is that if we look at the defendant with a
broader time perspective, we should perhaps demand that he avoid making mistakes of age,
not just that he refrain from sex once he has made them. But let us assume that we are
dealing with a defendant who has been truly duped; the girl produced a forged birth certificate, her parents lied to him about her age, etc. Now the question is, assuming we are trying
to protect rather than undermine statutory rape laws, whether he can legitimately claim that
the legal violation was meaningfully unavoidable, given that the sexual intercourse was fully
voluntary.
As in the imperfect self-defense situation, see notes 58-66 infta and accompanying text,
an interpretive construction as to whether to unify or disjoin two arguably separate inc~
dents-the decision about the girl's age and the decision to have intercourse-can be determinative. As in the imperfect self-defense situation, a unified view favors the defendant: He
would prefer to say, "I innocently perceived the girl to be overage as I had sexual relat~ons
with her." The act of intercourse thus would not be judged separately as a voluntary, avmdable act; rather, it would be the inseparable finish of the morally relevant decision, the decision
about the girl's age. A disjoined perspective (age determined, followed by a separate decision
to have sexual relations) may be far less favorable to a claim of unavoidability: No longer can
the defendant focus solely on the easy way to avoid statutory rape (determining age) without
accounting for this second chance to avoid criminality (avoiding sex).
The interpretive construction of the event swamps policy, though I recognize there are a
number of policy arguments lurking. The dominant legal view in this culture would be that
i~ is not permissible to punish the defendant who reasonably (under some time frame or
another) perceives the girl to be overage, both for reasons of fairness (Unless one punishes all
men who have sexual relations with overage girls, one cannot punish one who is unlucky
enough to discover that the apparently overage girl he had relations with is not. See G. WILLIAMS, supra note 1, 83, at 241.) and legislative accountability (If the legislature views sexual
relations with even overage girls as illicit, it must outlaw them specifically, not just make
them.risky. See, e.g., G. FLETCHER, supra note I, 9.3.3, ~t 727; H. PACKER, supra note 1, at
127.).
On the other hand, proponents of the claim that even a reasonable (broadly timeframed) mistake as to the victim's age is no defense could make the following argument: The
"real" statutory rape law is, "Don't have sex with innocent girls.'' Because we do not trust
state administrators to apply such a vague standard, we name an age (e.g., "Don't have sex
with 16-year-old girls.''). See H. PACKER, supra note 1, at 307-10. Some men may be lucky
enough not to be prosecuted' because the innocent girls they have relatio~s -;ith are_ over~ge.
They are beneficiaries of our desire to restrain state power, like the benefic1anes of cv1denuary
exclusion rules, see, t.g., Mapp v. Ohio, 367 U.S. 643 (1961) (excluding the use of evidence
acquired in violation of the fourth amendment). But there is no reason to acquit the defendant who both causes the harm we worry about and can be convicted without excessive state
discretion. Certainly the plea that injustice has been done because the defendant has done all
he can do to avoid crime is laughable: He has done no more than would the Holmesian "bad
man" tryi~g to take advantage of the inevitably mechanical nature of a legal code, and he has
failed. Holmes, Tlu Path of tht Law, 10 HARV. L. REV. 457, 458 (1897).
Moreover, the fact that the seduced girl is under 16 may simply be treated as concl~
sively presumptive evidence of blameworthy carelessness in perceiving her age. Whether th1s
sort of inevitably imprecise conclusive presumption is appropriate is a policy question. &e
note 46 infta and accompanying text.
Whichever way one resolves this dispute, one should note that it cannot arise if one
unifies the arguably separate incidents of deciding on age and having intercourse, as if the
second is swallowed up by the legally significant act of perception. But this is what the court
did un-self-consciously in Hernandtz when it said that the defendant had "diminattd the risk"
of committing statutory rape by "satisfying himself on reasonable evidence," 61 Cal. 2d at
534, 393 P.2d at 676, 39 Cal. Rptr. at 364 (emphasis added), that his partner was beyond the
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some checks pnor to seduction be taken? 41 If one is generally hostile

to statutory rape laws, 42 one can readily negate them by defining
reasonable perceptzons (negligence vel non) 43 in terms of judgments
that can be made, such as judgments about the girl's appearance, at
the time of the allegedly criminal incident. But a defendant may
deserve little sympathy for being unable to avoid crime when he has
had prior opportunities to discover the girl's true legal age. If one is
interested in using the criminal law to protect the chastity of the
young, one should insist that people talce qffinnative steps to avoz'd mistakes of age. The practical difference between framing this policy in
terms of strict liability and instructing a jury that the reasonable person must take affirmative steps to avoid mistakes of age (which would
almost certainly eliminate the practical effect of the nonnegligent mistake defense) 44 is ultimately insignificant.
What is striking is that a number of reasonably traditional "pol--~--~~~~-------------------------
age of consent. While this unifying step may lead to an acceptable result, the step itself is
nonjustifiable and unreasoned.
41. Note that a person may be duty-bound to take steps to a void sales of obscene materials to mint?rs, even where he is supposedly not strictly liable for sales to minors. E.g. , N.Y.
PENAL LAw 235.22(2) (McKinney 1980) (establishing as an affirmative defense to a charge
of disseminating obscene material that defendant reasonably believed recipient was 17 or
older and that prior to the dissemination, recipient had shown him an official document
verifying his age). &eState v. Kinkead, 57 Conn. 173, 180, 17 A. 855,857 (1889) (defendant
bartender's honest and reasonable belief that minor was over 21 not a defense, because inquiry could "hardly fail to elicit the proper information" and, in cases of doubt, defendant
could, without detriment to his business, remain within the law).
42. E.g., People v. Hernandez, 61 Cal. 2d 529, 536 n.4, 393 P.2d 673, 677 n.4, 39 Cal.
Rptr. 361, 365 n.4 (1964) ("'The crime of statutory rape is unsupportable in its present
form.' ") (quoting Comment, Ford/Jie and Stotuloty Rape: An E.rploration ofthe Operation and Obj~c
tives ofthe Consent Sttmdard, 62 YALE L.J. 55, 82 (1952)). The Hemantla court also noted, "The
assumption that age alone will bring an understanding of the sexual act to a young woman is
of doubtful validity. . . . [A) girl's actual comprehension [may) contradict() the law's presumption . . . . " 61 Cal. 2d at 531, 393 P.2d at 674, 39 Cal. Rptr. at 362.
43. A different way of framing the debate is to consider whether the legal system obun~s
or d!fines the negligence standard. The question is whether the law identifies the "reasonable
man" as behaving the way people would in the absence of legal system norms, or whether the
"reasonable man".should"act according to a different, usually higher, standard announced by
the court. For a v1ew that the negligence standard is created, not simply observed by a court,
see Judge Hand for the court in The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (discussing
~h~ problem of defining negligence in the torts context: "[I)n most cases reasonable prudence
IS m fact common prudence; but strictly it is never its measure; a whole calling may have
unduly lagg~d in the adoption of new and available devices. . . . Courts must in the end say
what IS requ1red; there are precautions so imperative that even their universal disregard will
not excuse their omission.").
44. In Hernandez, for instance, the defendant and the prosecutrix "had been companions
for several months" prior to the date of the illicit intercourse. 61 Cal. 2d at 530, 393 P.2d at
674, 39 Cal. Rptr. at 362. Though the defendant had plenty of opportunity to ascertain her
age, the court noted that "the prosecutrix in the instant case was but three months short of 18
April 1981]
235
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609
icy" arguments for strict liability, arguments lodged in traditional

liberal concerns for promoting rules rather than standards and for
decentralized control of production decisions, simply do not appear
in our legal discourse. Whether any particular politi:al act?r ~ou~d
ultimately deem them to "outweigh" arguments agamst stnct liability is less interesting than that the ar~ments have si~ply been
psychically suppressed by the narrow time-framed assertion _of t~e
supposed "helplessness" of the defendant condemned by a stnct hability statute.
In essence, the legislative "policy" decision whether to condemn a
defendant only where negligence is shown or to condemn wherever
harm is caused is simply a perfectly traditional "balancing" of, interests between rules and standards. If the legislature enacts a neglige-nce standard, so that, e.g., a manufacturer is liable fo~ sendi~g out
adulterated food only if he acted unreasonably, or a hquor hcense
holder is liable for selling to underage customers only if he screened
customers unreasonably, two rather poor, though different, sets of
bad consequences can result. If the negligence standard is vaguely
defined, so that each.jury is simply instru:ted to d~term~ne w~ether
the particular defenqant was reasooable, JUry verdicts wlll be mconsistent, unpredictable and biased--dassic problems of. stan~ards.
Moreover, if the particular jury equates reasonable behav10~ ~~~h ordinary behavior, an ~ntire industry may free itself of responsibility by
uniformly acting less carefully than the legislature would like. On
the other hand,_ the legislature may predefine "reasonable care," setting out a preci~e series of steps which the defendant must take to be
found nonnegligent. The problem is that this centralized comma-?d
may be imperfectly tuned to the precise circumstances each potent_Ial
defendant is in. Each defendant may know a cheaper, more effective
way of averting harm. But it may be in the defendant's selfish interest to adopt the legislature's technique, even if it will cause more social harm. 45
Strict ' liability-that Is, conclusively presuming that causing
years of age" and therefore not of "obviously tender years." /d. at 536, 393 P.2d at 677, 39
Cal. Rptr. at 365.
45. Consider the following case: A liquor store license holder faces a S I 00 fine for each
violation of the sale-to-minors proscription. In a strict liability regime, he would adopt System A, which costs $400 to implement and would result in five violations. His net priv~te and
social cost is $900. In a negligence regime, he might adopt System B-the one pr"?rdam~d as
nonnegligent by the legislature--though it costs $600 to implement an~ res~lts m 10_ VIOlations. If he is certain to be found nonnegligent using System B, and he 1s fa1rly certa~n that
System A, though better in his circumstances at avoiding the socially feared result, w1ll l~d
to his being judged negligent, then given a preordained description of reasonable care, he w1ll
tltill
....I
\Ill\
.n\
""''
1ft
"'...~'
till
Ill; I
~~.
ell
236
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STANFORD LAW REVIEW
Critical
[Vol. 33:591
~arm ~s ~l~meworthy--:-has it~ costs too. Like all conclusive presumptiOns, It IS maccurate m particular cases. There will be cases where
someone46gets blamed who, on closer analysis, we should not have
blamed. Of course, that is true in the "rule-like" form of negligence
too, where we demand that actors take predefined steps. And what
~ay. be worse, t~e "rule-like" form of negligence may induce socially
I~ratwnal ?ehavwr. The standard-like form of negligence may convict some mnocents, too. But it may convict innocents for bad reason~ (e.g., race preju~ice of juries) rather than for no reason (Z:e. , the
accidental ovennclus1veness of the conclusive presumption).
In terms of "expla~ning" the narrow time-framed interpretation
that suppres~es the pohcy complexiti~s of the strict liability issue, one
~ould ~onceivably see the construction in either result-oriented or
I?eological te~ms. One can ~ew this attack on strict liability as a
Simple class-biased, result-onented defense of corporate managers
thos~ perso~s most likely to "unintentionally" harm others through
ro.utme busmess operati_ons. Ce_rtainly, the bulk of strict liability
cnm_es ~re regulatory cnmes which, unlike the traditional common
law Incidental harms, are most likely to be committed by those who
~onro_l the _me_ans ?f production. Of course, thednse of strict liabilIty cnmes Is hkew1se grounded in a political agenda-in an attempt
t"
"h
.
o get
arm_-causm? ~an~?"ers-rather than in abstract "legal"
thought. But smce stnct habihty crimes have rarely been imposed in
ways that threaten corporate managers, the narrow-time-framebased dismissal of str~ct li_abi_li_ty more likely serves ideol'ogical needs.
The opponents of stnct hab1hty may be seen as raising hysterically
exce~s1ve defenses against charges that the criminal justice system
:outme~y blames those who are, in the eyes of more general determinISts, qmte blameless. If one insists loudly enough that punishment
adopt B: Its private cost will be only $600, while System A will cost him $900 th
h
social cost is $1600 rather than $900.
' oug Its
46. ?f course, conclusive presumptions are rampant in the criminal law; it is certain!
not surpnsmg that they are used in the basic mental state definitions. We inevitably lab~
someone more or less blameworthy because his act fits into a cat~gof)' that we deem more or
less blameworthy, whether or not the act shares the traits of the category. To name just
couple of examples fr."m the innumerable instances of conclusive presumptions: A nighttim:
b~rgla_ry may be pums~ed more than a daytime burglary, even when the structure entered at
mght IS not the sort hke~y ~o contain inhabitants to be startled. E.j;. , TENN. CODE ANN.
3~-90 I, -90~ ( 1980). S1mllarly, burglaries of dwellings, structures defined as being capabl~
of bemg occupied by persons, are conclusively presumed to be more serious than burglaries of
other str.uctures, whether or not the dwelling is in fact occupied, or is even known to be
unoccup1ed. E.g., Schwabacher v. People, 165 Ill. 618, 46 N.E. 809 (1897) ARIZ REv STAT
ANN. 13-1501,-1506 to 1508 (1978 & Supp. 1980-1981) CONN. GEN. STAT ANN .53
'
a102, -103 (West 1972).
April 1981]
237
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611
can only be practiced where there is personal fault-if one reacts with
enough horror and shock at the idea of punishing those one defi~es as
faultless without paying much attention to how _faultlessnes~ IS defined-perhaps one can ignore the charge that m our rout1~e accounts of fault in ordinary "intentional" criminal cases, we s1mply
rule out the determinist claim that "crime is unavoidable." The determinists can be warded off by pointing out just how sensitive we
purportedly are to p~~ishing the blameless; the _desired rhetorical
point is that such sensitive people err only on the s1de of the accused.
2. Broad time-framing.
Much criminal law doctrine departs from the traditional incident
focus and opens up the time frame. Broad time frame constructio~ is
most often used when deterministic discourse supplants the usual mtentionalism. The substantive doctrines of duress, subjective entrapmentl provocation, and insanity are examples of such uses of broad
time-framing. 47 These doctrines describe how certain blameworthy
acts are in fact blameless because rooted in or determined by factors
that preceded the criminal incident. The question,_ of_course? is why
the broad time frame is selected in these cases, while It contmues to
be excluded as methodologically inappropriate in most other cases
for no apparent reason.
.
Broad time-framing unrelated to determinism and intentionai_Ism
also occurs in other areas of the substantive criminal law. The time
frame can be opened up to account for events both prior and subsequent to the criminal incident.
Abandonment. The basic decision to allow any abandonment defense follows a wide time-framed interpretive construction. 48 The defendant has already committed some act which, if interrupted by
external forces, would constitute an offense, an attempt of some other
substantive crime. Yet we judge the act innocent because of the defendant's subsequent failure to consummate the harm. Although
many reasons for this widened time frame have been offered, none
overcomes the fundamentally nonrational, interpretive aspect of the
initial broadening of focus. Some deterrence-oriented theorists sug47. Stt notes 128-54 i'!fta and accompanying text.
.
48. Su, ~.g., MODEL PENAL CoDE 5.01(4) (Tent. Draft No. 10, 196?J,_exculpatmg an
actor who completely and voluntarily renounces an unconsummated cnmmal plan, even
though he had already done enough so. that were he interrupted by external forces, he wm~ld
be guilty of attempt. q: People v. Staples, 6 Cal. App. 3d 61, 85 Cal. Rptr. 589 (2d D1st.
1970) (denying that voluntary abandonment is a good defense).
238
612
STANFORD LAW REVIEW
Critical
[Vol. 33:591
gest that an abandonment defense provides incentives to avoid the

consummation of harm. 49 But there are surely a number of "completed" crimes whose harm can be as effectively "undone" as can the
abandoned attempt: An embezzler, for instance, may return money
to victims unaware of their loss 50 and "undo" as much harm as the
person who desists from an assault with intent to commit rape because the victim talks him out of continuing. 5 1
Retributively oriented commentators note that abandonment
makes us reassess our vision of the defendant's blameworthiness or
deviance. 52 Of course, if we admitted evidence of post-criminal conduct (whether remorse, restitution, condonation, or reform) into eoery
trial, we would frequently change our views of the defendant's
blameworthiness. Once more, the act of interpretation, the open
time frame, allows the policy conclusion.
Broad time-framing is used in the abandonment area because the
general rule-oriented natur~ of the criminal law has already stumbled in the less rule-like attempt area. Attempt law is generally problematic in our legal culture because it is inexorably less rule-like than
the law of consummated harms; the actus reus of "attempting" refers
not so much to particular proscribed act~53 as to unavoidably noncategorizable acts which, in the particular case, seem to give evidence of
the particular defendant's subjective disposition to act criminally.
To commit rape is to force carnal knowledge of a woman; to attempt
rape is to do sufficient acts to indicate that one would force carnal
knowledge. Whether the requisite "sufficient" acts include the precise acts of undressing, fondling, cornering, isolating from public
view, using force, and/or simply implying that force will be used is
inevitably a case-by-case determination. I suspect that the use of a
forward-looking broad time frame in considering the blameworthiness of an attempter is the predictable outcome of the breakdown of
the rule-like form. The system demands all available information
49. &e, e.g., W. LAFAVE &A. ScoTT, supra note I, 60, at 450; G. WILLIAMS, supra note
I, 199, at 620-21.
50. G. FLETCHER, supra note I, 3.3.8, at 186.
51. Su LeBarron v. State, 32 Wis. 2d 294, 145 N.W.2d 79 (1966).
52. G. FLETCHER, supra note I, 3.3.8, at 187-88.
53. &e the discussion of distinguishing preparation from attempt, notes 167-80 zi!fta
and accompanying text. H. PACKER, supra note I, at 100 states: "[AJII of us frequently make
moves in the direction of criminal activity, thereby satisfying this essential element of the
attempt concept. It is, therefore, instructive to note the doctrinal mechanisms whose function
it is, baldly put, to keep from making criminals of us all." The difficulties of squaring this
vague doctrine with legalism are discussed in id. at 101; G. FLETCHER, supra note I, 3,3.4, at
157-59.
April 1981]
239
Studies
613
about defendant's blameworthiness, taken from as wide a period as

possible, as soon as it departs from the rule-like form.
The attachment to overtly political Rule of Law ideals precludes a
gerteral broadening of time focus in _the traditional cons~mmated
harm case; the idea is that blameworthmess must be conclusrvely presumed from th~ performance of one of the proscribed acts in one of
the narrow time-framed blameworthy fashions. Once we allow ourselves to recognize the breakdowns in our inevitably imprecise conclusive presumptions', we see the strains of legalism. To recog~ize
that we were probably thinking about the unremorseful, nonrestrtution(J.ry thief when we set out general penalties for larceny is to remind ourselves of the limit of the universalistic model. But we can
avoid overtly political defenses of obviously inapt conclusive presumptions by implying that, as a matter of method, our factual inquiry simply does not go forward once a criminal act is complete.
The undefended, but deviant, broad time frame appears in constructing an abandonment defense because of th~ inevitable b~eak
down of pure legalist form in the attempt area. Smce we cannot mfer
blame from a single act, because no such act is present in attempting,
we move, at the very least, to more partial Rule of Law strictures:
We, try to infer a disposition to perform one of the still automatically
blameworthy acts. But this does not imply, as Fletcher seems to believe,54 the logical necessity of allowing an abandonment. defense:
Once one performs acts indicating a firm intention to commrt blameworthy criminal acts, there is no rational reason not to treat t~e ~er
formance of these acts as conclusively presumed proof of cnmmal
intent. Of course, such a conclusive presumption would be inaccurate, as all conclusive presumptions are; the abandoning defendant
demonstrates that our presumption that defendants who have "at54. Fletcher argues not precisely that the abandonment undermines our sense that the
defendant is a blameworthy harm-causer, but that it undermines the far more specific criminal intent that he feels is required to carry out a crime. G. Fu:TCHER, supra note I, 3.3.8, at
189. This more complex vision, though, is ultimately circular: It is based solely on Fletcher's
notion that consummated harms are more than simply indicators of blameworthiness or need
for reformation, incapacitation, etc., if. MODEL PENAL CODE 1.02(1) (Proposed Official
Draft 1962) ("The general purposes of the provisions governing the definition of offenses are:
. .. (b) to subject to public control persons whose conduct indicates that they are disposed to
commit crimes.") (emphasis added), while attempts, uniquely, are simply indicators. But the
validity of the vision of attempts as indicators of blameworthiness and completed hamlS as
inexorably blameworthy, without regard to the rest of the defendant's revealed attitude about
harming, is precisely the question here; it cannot be used to provide th~ ans~er to the qu~
tion of whether the open time frame used in the abandonment defense umquely appropnate.
240
Critical
614
STANFORD LAW REVIEW
241
Studies
[Vol. 33:591
tempted" are firmly resolved to commit crimes is sometimes wrong.

But the remorseful consummated criminal would equally well
demonstrate that conclusive presumptions about the need to incapacitate, reform, or blame a person because he has committed some
crime can be inapt. The abandonment defense, then, appears not
because a forward-looking broad time frame is logically better suited
to attempt law, but because the always available policy attacks on
rules (and conclusiv~ presumptions) are allowed sway only in an area
where the rule-form is already weakened by the imprecision of the
definition of the act upon which criminal liability is predicated.
Consent. Problems of time-framing also appear in deciding

whether consent has been given to otherwise criminal acts. 5 5 .Assuming, arguendo, that no action is harmful which the subject assents to,
we still can identifj the suppos~dly consenting subject using either a
broad or a narrow time frame. We can look into the subject's past or
just at a single moment of assent. Should that moment be immediately before the act is performed? If the victim at one point did not
assent to the harmful act but has assented to it right before the act is
taken, has he assented to it? When Odysseus demands at one point
to be bound up when the Sirens sing, and later demands to be released, which choice most fulfills his "desires"? When someone goes
on a diet, do you give him the piece of chocolate cake he begs for if
you are trying to do his will? That we have no ready rules of
thumb----e.g., "last statement counts," or "statements made under
oath count"--can be seen not just from these sorts of explicitly ambivalent expressions over time, but by noting that we vary our defini55. Libertarian commentators have long been hostile to the idea that one can convict a
defendant when the purported "victim" has agreed to allow that defendant to treat him in a
cenain way. See, e.g., H. L.A. HART, THE MORALITY Ot' THE CRIMINAL LAw, 37-39 (1965);
j.S. MILL, ON LIBERTY 95-100, 179-89, 206-09 (Everyman American ed. 1951). This hostility is manifested in a generalized opposition both to so-called "victimless crime" legislation,
$U, e.g., E. SCHUR, CRIMES WITHOUT VICTIMS (1965), and to the judicial practice of disallowing consent as a defense in panicular cases of, say, assault. See, e.g., MODEL PENAL CoDE
2.11 (Proposed Official Draft 1962). The libenarian argument is quite straightforward:
The criminal law is designed to deter harm (or blame those who do harm), and it is (definitionally) absurd to say that harm has been done when all parties affected by conduct have
assented to it.
Antilibertarian~ have generally relied on two positions to justify punishing acts that have
been consented to: pure paternalism (the victim's capacity to judge what will be good for him
is not to be trusted), see, e.g., H. L.A. HART, LAw, LIBERTY, AND MORALITY 30-34 (1963);
Dworkin, Paternalism in MORALITY AND THE LAw 107 (Wasserstrom ed. 1971), and a view
that there are broad harmful externalities to the purportedly private interaction, see, e.g., P.
DEVLIN, TilE ENt'ORCEMENT OF MORALS (1965); E. DURKHEIM, THE DIVISION OF LABOR
IN SOCIETY 96-110 (1933).
April 1981]
615
tions of assent to account for implicit suppo~ziions o~ ambiva~ence over

t'me For instance in ordinary commerc1al deahngs, a s1mple nod
:nd ~ grunted, "I'li take that box of strawberries for 59 cents" all~ws
the other actor to consummate a sale without much fear of harmmg
the buyer. But if someone grunts, "I wish y~u~ _kill me," we do ~ot
take the remark as manifesting welfare-max1m1zmg assent on wh1ch
the would-be killer is entitled to act. In terms of broadening the time frame backw~rd, we must also
determine whether the origins of preference formatiOn shoul~ be considered. Does it matter if the ~sent follows threats or bn~~ (re;
stricted determinism) or a warped childhood ~fuller determ1msm).
Does it matter whether the subject chose these mfluences or that, ultimately, no one privately chooses the _most basic influences? Is the
subject we are interested in the developmg person or only that person
who actually developed? 56
Just as significant-and perhaps more operationally sig?ificant to
juqicial efforts to define consent-is whether we ~pen the t1me frame
to account for beliefs held subsequent to the action? too. ?o we require that the subject not regret or disown the ~rher ch01ce before
we ~xculpate the defendant? It is perfectly plausible that a defendant be deemed guilty of a "harmful'1 assault if there is ultimately a
complainant: that the harm may be reve~l~~ only after the fact. A
philosophical scheme that denies the poss1b1hty that. one can harm
those who have consented to one's acts seems mechamcall~ workable
only if we define the consenting subject in the narrow~t time frame,
accounting only for preferences expressed by the subJeCt .at ~he moment of defendant's conduct. This definition of the consentmg_ s~b
ject is h<irdly compelling, however, since it is unlikely that the victim
dissociates himself into a disconnected series_ of assen~ers. More
likely, the subject views himself as a person w1th a co?tmuous personal identity, a person concerned about later reev~luatton of current
decisions and the impact of past pressures on chOice.
.
Ultimately, the narrow time-framed view of ~~nsen~ s~rves a v1tal
z'deological function, though it produces rather tnv1al cnmmal law results. Narrow time-framing here may serve not so r_nu_ch to deny th_e
criminality of otherwise culpable drug sellers, sex_cnmmals, or .prostitutes , but to buttress the ideological argument for the beneficence of
56. See, e.g. , Gintis, Consumer Behavior and /he Concept of Sovereign_ly: Expl~na~ions of_ Social
62 AM EcoN. REV. 267 (1972) (discussing the development m a captahst soc~ty of
ecay,
.
~
"
't " and "meamngful
taste for private appropriation of goods rather than 10r commum Y
f)
work'').
242
616
B.
STANFORD LAW REVIEW
Disjoined and Unified Accounts
[Vol. 33:591
of ''lnczaents"
A second unconscious inter t

.
"disjoined" and "unifi d"
pre Ive construct Is the choice between
tive criminal law unk:owf~c~unts of rflevant _legal facts. Substanment h'ft b
. . g y, or at east Without rational arguincid~~t lors ase:;:::t~~:~::e:t:~ries of significant events as a single
I.
243
lmperflct se(fdeftnse.
!mperfect self-defense doctrine is one exa

1 f
.
chmce between disjoined and u 'fi d
mp .e ~ the aratiOnal
h
m e accounts of mc1dents In th
~~=ki~; h~:e:1t~n~e:~~i~oe;~e ~~li~ves
victim~~
thatbthe ultimate.
counters with deadly force but a cannobtl e warded off unless he
,
..
'
a reasona e person in the d {; d
ants posltlon would not believe this 58 H ld'
.
. e en genu_i~e b_elief, the defendant intenti.onall: k:~; t~hls ~e~hge~t but
homicide mtentional or negligent? On th
h de VICtim. s the
th e k'll'

1 mg mcident
as temporall dis' . de one an
. , we might VIew
the need to kill is.followed b
~ ~o~ne ; a. n~ghgent perception of
the defendant is more bla~=~~~~ntwnal kdlmg. ynder this view,
killer (e.g.. the bad d
59 h
Y than the traditiOnal negligent
'
nver, t e person who la
h
60
cause he has focused on the issue of whether
/~ w~t guns_ ), behas gone ahead and done it On the oth
o ~ e uman hfe and
the need to kill and the co~d t
_er hand, If the perception of
'11
uc are umfied as a si 1 . .d
Wl not see the killing as worse th
h
d' .
ng e _mel ent, we
The Model Penal Code,6' reftecti~n t e tr~ It.!On~l. negligent killing.
trend,62 considers such defe d
g ~tartlal JUdicial and legislative
n ants gm ty only of negligent homicide.
57 .. For a !llOre in-depth discussion of the relationshi b

.
and desires manifested over time in the c I
f
. . P etween smglemoment choices
see Kelman, Choict: and Utilz!J- 1979 WIS o~ eRxt o tradmonal neoclassical welfare economics
58 I 'II
'
EV. 769, 778-87
WI
not discuss whether a reasonable belief .
.
.
behefthe ordinary man would hav h .
m the necessny of self-defense is a
.
e m t e circumstances or a bel" f
I
.
e generated by a reasonable
process, gven the physical and/or e t"
problem is analogous to the proble:o fiO.na perc~ptiOns the defendant actually has. The
0
109- 15 "!r'fJ
.r.
mterpretmg "reasonable provocation."
and accompanying text

Su notes
59 &
.
'1!, .g. Jones v. Commonwealth 213 K

356
60. Su, ~t.g.' State v. Tucker, 865 s.c: 211 ~ S E 5~~1 S.W. 164 (1926).
'
. .
(1910).
61. MODEL PENAL CODE 2 02(
62 &1!
Air
S
.
10) (Proposed Official Draft 1962)
.
, t.g.'
son v. tate, 74 Ark. 444,86 S.W. 409 (1905), S tate v.. Thomas, 184 N.C.
April 1981]
617
The Code does not recognize, if only to deny its importance, the distinction between deliberately taking human life under unreasonable
perceptions and taking life without being subjectively aware of the
risk of death.
In contrast, in Umied States v. Calley ,63 the defendant deliberately
shot Vietnamese villagers after unreasonably believing that he was
lawfully ordered to do so. The court held that Calley committed
intentional murder, even if he belie~ed he was acting under orders,
because: "The acts of a subordinate dohe in compliance with an unlawful order given him by his superior are [not] excused . . . [if] 'the
superior's order is one which a man of ordinary sense and understanding would, under tHe circumstances, know to be unlawful
. . . . " 64 The court, without comment or apparent awareness, disjoined a potentially unified incident, classifying negligent perception
followed by the legally relevant intentional killing as separate incidents, each incident to be judged on its own merits.
One might believe that the intentional killing should be separate
from the perception in this particular case because the Calley "incident" occurred over a longer period than does the typical imperfect
self-defense incident. Calley did have a longer time to consider his
perceptions oe.fore he killed intentionally. But'that reasoning is hard
to fathom: As long as Calley still believed at the time he killed that
he was acting legally, he is like the imperfect self-defender. Both
could say: "At the moment I pulled the trigger, intentionally killing
the victim, I believed that I was legally authorized to kill. Although
my belief was unreasonable, it was not based on a misunderstanding
of legal duties. I simply misapplied these legal norms to the particulars of this case."
We mu~t recognize that disjoined time-framing has made a hard
case seem easy. The unstated, unjustified, disjoined perspective 'of
Calley suppresses the sense that the actor did not kill in the manner
the worst intentional killers do--with a subjective sense of wrongfulness. On the other hand, the Model Penal Code's unified perspective
similarly suppresses the recognition that negligent self-defenders
cause death differently than do ordinary negligent killers in that they
at least sense the presence of death.
The Model Penal Code's perspective is, I would guess, intended
757, 114 S.E. 834 (1972); Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571 (1911); ILL.
ANN. STAT. ch. 38, 9-2 (Smith-Hurd 1979); Wts. STAT. ANN. 940.05 (West Supp. 1980).
63. 46 C.M.R. 1131, a.ffd, 22 C.M.A. 534 (1973).
64. /d. at 1183.
244
618
STANFORD LAW REVIEW
[Vol. 33:591
to preserve the "rule-like" nature of the Code's mens rea categories. 65

The disjoined perspective would require a finding that the defendant
is somewhat "worse" than the typical negligent killer, thbugh perhaps still "better" than the typical purposeful one. Yet the Code's
intermediate categories do not aptly portray the defendant, for he
certainly does not kill "recklessly" or with "knowledge." This implies
that "blameworthiness" is not aptly summarized by the Code's categories, an implication quite unsettling to the politically significant
notion that the blameworthy mental state, a necessary condition to
conviction, a core element of the definition of each offense, can be
precisely described in a rule-like form. 66 Moreover, the disjoined perspective raises, if only metaphorically, the highly unsettling determinist position that it is not enough to know that the defendant
acted intentionally without inquiring into the roots of his intention.
If we treat the negligent self-defender as a partly excused intentional
killer, one partly exculpated because the roots of his intentional decision to kill are clearly less than culpable, we are led to wonder why
we should not always inquire into the temporally separated background of the vicious will. Perhaps we should always ask how culpable the defendant was in becoming an intentional criminal.
Interpret~ve construction suppresses this disturbing question: We
unify when we w,ant to account for but deny that we are looking at
the background of an intentional act; we disjoin and focus on the
"second" incident when we want to obliterate the past altogether.
2.
Voluntary acts.
A second example of the shift between unified and disjoined accounts of incidents appears in the criminal law's voluntary act requirement. Assume that we decide that the drunken defendant in
67
Martin v. State involuntarily appeared in public, that we ignore the
problem that he may have taken earlier voluntary acts ,that might
make us view the appearance as, on the whole, voluntary. The stat65. &e MODEL PENAL ConE 2.02 (Proposed Official Draft 1962) (describing levels of
blameworthiness).
66. See H. PACKER, .rupra note I, at 107: "If one is engaged in drafting a criminal code,
which must prescribe precise()' what has to be proum to convict o.f crime and precise()' what distinctions
separate one crime ftom anollzer when the same external facts are present (as, for example, in
differentiating murder from manslaughter), there can be no doubt that the positive approach
[which "attempts to identify particular states of mind") is much the superior. . . . It is no
accident that the positive approach is adopted in the masterly legislative construct underlying
the American Law Institute's Model Penal Code." (emphasis added) (quoted material in
brackets is from id. at 105).
text.
67. 31 Ala. App. 334, 17 So. 2d 427 (1944); see notes 28-35 supra and accompanying
April 1981]
245
Studies
Critical
619
68
b
ublicly drunk and boisterous.
ute required that perpetrators e ~ .
. that each element of the
f the court's opm10n IS

One interpretatiOn o
l
"l . . that it is unjust to punish a
crime must be performed ~o untan yh.e.' to avoid the crime.69 The
person who has not been _gtve~
~ ancet It found the drunken
court thus joined the dtsshoctlat~ elemteanrys. and exculpated the de.
as a w o e mvo un
puphc appearanc~ .
uire each statutory element to be perfendant. But de~tdmg to req efendant illustrates the ti'?e-f~aming
formed voluntanly by the d
d bt would find viOlatiOnS of
h
esent Courts no ou
.
I
tensiOn t at ts pr
.
"f
sure occurs during an.mvo
h"b" m statutes even 1 expo
d"
pubhc ex t !uoms
7o The exhibitionism is separated or
tsuntary pubhc appe~ra~ce.
blic a earance and judged on
joined from the earher mvoluntary pu
::wever die incidents are
its own.n In _the public d~unken~~s i~~~~ incident: and if that incib
"tted n There is no
unified: "Boisterousness m pubhc
th defendant must e acqm
.
. .
l
l .
h this should be the case.
dent ts mvo untary, e
exacting principle that e_xp_ ams ~- rnin techniques are merely user suspect that the_ umfym~d~~at i; really at stake is a political
ful, dissonance-reducmg ~as . h drunk is less intentional than
.
h t cting bmsterous w en
.
Judgment t a a
.
bl" The exhibitionist can more east1y
h can the -drunkard. For the
exposing oneself once m ~u tc.l.
.
al" " nee m pub lC t an
"avmd cnmm It~' o "
" ~ ortunity to avoid the offense,
drunkard to be gtven _adequate b pd termined externally, because
his appearance in pubhc cannot e e
evd
. drunkenness, N o. 86 , 1885 Ala. Acts (at the

time
bhc
l
d . of the
en
68. An Act to prevent pu
. . 14 120 (1940)). The statute remame mess
Marlin decision, codified. a~ ALA. Coo~ ~\n
by the Comprehensive Criminal Code, No.
977
tially the same form unuln was repea e
.
607, 1977 Ala. Acts 9~1. .

.
. that the boisterous behavior may be mvolun69 The other plaus1ble mterpretauon IS
.
rformed voluntarily.
tary fo~ drunk persons. Thus, no element of the cnme ~~ !:sy case of a person voluntarily
If this interpretation is correct though, the subp~se
ess is involuhtary, a k~y element
l matic If the msterousn
.
.f
appearing in public becomes prob e
.I
. hes public druni{enness on9'
1 I one
b
"d d Yet the legs ature pums
1 b
of the crime cannot e avo e
d
ks . 11 be punished or g<>" free enure Y et ffect is that run WI
h
h
o
Th
1
e ne e
h.
wh"ch we have decided t ey ave n
behaves boisterous Y
d
met mg over
r
cause they have done, or not one, so
.
. "The seventh public drunk a po ICeman
v nth is hardly in his control.
control. It would be as if the statute w_ere wntten.
sees shall be punished." ~hether_one. IS ~~a~:~ ~:~e ~rdinances 37:9-4, cited in. State~70 For instance, Mmneapohs Clly
.
l"ke the Marlin <drunk-m-pubhc
.
W 2d 905 (1955) was wntten '
"
Wilson 244 Minn. 382, 69 N. .
'
d the additional offending acts: Any
,
. d b h th pubhc appearance an
f d.
or
statute. It require
ot
e
.
ex osed lace . . . in a state o nu ty .. .
person who shall appear in any street o~'/pu~hc or nJ:cml e;o.rure of his or her person . . . shall
.10 any .mdecent or Iew d dress ' or shot. moAt any 'h ddr d)
be guilty." /d. at 387, 69 N.W.2d at 907 (e~pd:"'"s ~ te~ ,:" treated as a separate incident
71. Just as Calley's intentional mu.rder IS ISSOCia , .. ,
taking a single act, which is morally
from his judgment about background crcu~stan~
72. Just as the negligent self-~efender Is treate as
dominated by our sense of his neghgence.
'
246
Critical

620
STANFORD LAW REVIEW
[Vol. 33:591
~!~!~is~~~~;sness on~e drun~ is
always partially determined. Of

tute a~ utte~rousn~ Is not ~Iewe~ as so. unintentional as to "Constirather than ffcea:~ltr;.ry b:.lS for l~posmg criminal liability,73 but
~~~~~!J: deht~rmh ine~ (~~~~0~:~ r~~~:~et~~:s~~l~i;:fr:a~~:::~g~i~~

m w lC we recogmze that man th.
still explicable), we simp!; a~:t:
disjunctive or unified accounts of incidents.
s~~ bu~
at~emi:~u:e ~art choy using
C. Broad and Na"ow Views o/ Intent

b
~ thi~d uncons~ious construct is the unstated choice betwee
t~~; th:nac:;r:7 VIews of the actor'~ intent.. A narrow view assume~
br d .
ends only the precise physical act he performs A
oa VIew assumes that the precise
.
.
.
broader category of acts the actor inten~~~ IS an mstance of some
1.
Impossible attempts.
The shifting between broad and

.
occurs in the criminal law is "d na~row VIews that unconsciously
~ttempts. The typical attempt ::ee~~~~ ~~~itoltine of i~p~ssible
swn; the defendant fails to cause ha
e . y te.m~ora dimenis incomplete, interrupted or thwar:~ b~~a~se his ~~lmmal conduct
defendant completes the ~hysical t .
Imp~ssi. e attempts, the
harm occurs.
ac s, yet no cnmmally cognizable
Courts and commentators must deal w h fi
.
.
possibility: pure legal im ossibilit
. I.t our cat~gones of lm~egal/factual impossibilit/ and fa!t~~~~dltion~~ .~~gal Impossibility,
Impossibility the defenda~t aims to . limpossi .I I~Y In pure legal
b
. .
VIO ate a cnmmal pro
ut no cnmmal statute actually proscrib h"
d
scnpuon,
statute proscribe an apter version of h"es. Is co? u~} n?r ~oes any
t d" .
I I
IS mtentiOn
Similar! .
ra ItiOna egal impossibility the d fi d
'
.
y, m
criminal proscription. Howe~er
e en. a~t
not violate a
, an existmg cnmmal
h "b .
. 75 I
. pro I Itlon
d oes narrowly describe the defend ant ' s azm.
n the third category'
sac': ?o
73. That is, the interpretation discussed in note 6

74. For instance defendant poss
I"
9, supra' cannot be correct.
'
esses 1quor believing h b k"
h
'
e IS rea 1ng t e law, though in
f:act P rohibition has been repealed All
A classic example is Wils~n v. s~:~;;~ti:rs ;;~u;pate defendant.
conVIcted defendant of attempting to
. r
8 So. 46 (1905). The trial court

r
commn 10rgery when he ch
d h
.
h
ange t e numbers on a
c h eck. D eendant was unaware that ch
r.orgery. The appeals court, subsequentlyangmg
t e numbers r th
h
h
supported b
II 'h a er t an t e letters, is not a
a t e .~ommentators, reversed.
. _Professor John Kaplan suggested to me that "
h
I enlightened commentators do not share
this Judgment of Wilson. This is an ar
ea w ere am unsure who I am allowed to attack
?5.
April 1981]
247
Studies
621
legal/factual impossibility, the defendant again fails to consummate

the harm. This time, however, it is because of a fairly particularized
76
mistake about the legal attributes of the situation he faces. The mistake preventing harm is not a pure legal mistake-believing it is illegal to receive stolen goods when it is in fact legal-nor a traditional
legal mistake-believing that goods attained through fraud are stolen when the jurisdiction does not describe fraudulently obtained
goqds as stolen for purposes of the stolen goods receipt statute.
Rather the mistake concerns the legal status of the paJ1icular goods-attempting to receive stolen goods that have been "recovered" by the
police. Finally, in factual impossibility the defend~nt fails to cause
harm because he mistakenly perceives the probability of effectiveness
of his conduct. His mistake c9ncems some nonlegal fact. The classic
case involves defendants convicted of attempted larceny when they
77
stick their hands into empty pockets. 1 believe that the lines drawn among, and the arguments separating, these four categories are generally based on submerged interpretive shifts between broad and narrow views of the defendant's intent.
When we view the defendant as intending only precise physical acts,
we'acquit the defendant because these precise acts do not constitute a
crime. On the other hand, when we view the defendant as intending
a broader category of acts; an apter version of the acts he did, we
incJlpate the defendant for attempting a crime. These interpretive
shifts' can be seen if we analyze the doctrinal positions of the major
18
commentators in two paradigm cases--Wilson v. State and People v.
Jajfo. 79 In Wilson, defendant was acquitted of a forgery because he
without being accused of picking on small-fry. The Wilson result is supported by the major
writers, and I have been unable to find it explicitly attacked. G. FLETCHER, supra note I,
3.3.7, at 178; J. HALL, supra note I, at 595-98; G. WILLIAMS, supra note I, 205; Enker,
lmpossibilil)' in Criminal Allnnpts-ugalil)' and the ugall+ocess, 53 MINN. L. REV. 665 (1969);
Hughes, One Further Footnote on Allnnpting the Impossible, 42 N.Y.U. L. REV. 1005 (1967).
76. The classic case is People v. Jaffe, 1!35 N.Y. 497, 78 N.E. 169 (1906). Defendant
attempted to receive what he thought were stolen goods. Actually, police had recovered the
goods. The court exculpated defendant. Some commentators agree, su G. FLETCHER, supra
note' I, 3.3.7, at 182; Enkcr, supra note 75, at 694, but some do not,su J. HALL, supra note I,
at 598; Deusner, The /Joctnne of lmpossibilil)' in the Law of Crinunal Allnnpts, 4 GRIM. L. Bul.L.
398 (1968); Hughes, supra note 75~ at 1009; Sayre, Cnininal Allnnpts, 41 HARV. L. REV. 821,
853-54 (1928).
77. &e, e.g., People v. Fiegelman, 33 Cal. App. 2d 100, 91 P.2d !56 (4th Dist. 1939);
People v. Moran, 123 N.Y. 254,25 N.E.2d 412 (1890). Cf. Mullen v. State, 45 Ala. 43 (1871)
(defendant shot at victim with defective weapon, incapable of causing harm); State v. Morretti, 52 N.J. 182, 244 A.2d 499 (1968) (defendant tried to perform illegal abortion on woman
who was not in fact pregnant).
78. 85 Miss. 687, 38 So. 46 (1905). Su note 75 supra.
79. 185 N.Y. 497, 78 N.E. 169 (1906). &e note 76 supra.
248
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622
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STANFORD LAW REVIEW
Critical
[Vol. 33:591
c_hanged numbers rather than letters on a check-a case f t d"

twnallegal impossibility, since the change in numbe
o ra I 1 1
rs was not ~ mat ena
r
. a teratwn of the check and the cnme
o f wrgery
req
matenal alterations. In Ja"i: the defendant
. d mres
h
f
.
w~'
was acqmtte of a
~ ar;e o attemptmg to receive stolen goods because the stolen good
e t ought he was to receive had been recovered by the police, an~
hence were no longer stolen-a case of legal/factual impossibility.
~~fave and Scott, reflecting both the Model Penal Cod 8o d
tradttwnal commentato 8t
k
.
.
e an
.
. .
. .
. ~ rna e nonratJOnal mterpretive switches
~n dtst~bn~. 1shmg tradttwnal legal impossibility from legal/factual
tmpossJ 11ty. They argue:
In Wilson the defendant may have thought he

. .
b ut t"fhe d"td It
was not because he intended
was commtttmg. a
cnme,
that the criminal law prohibited but rather be to dho some~hmg
t f h
cause e was 1gno~anJ o t e matenal alteration requirement of the crime of

n _affe, o~ t_he other hand, what the defendant intended to ~~g:~
~ec~me anld ~~the f:bacts ha~ been as the defendant believed them to
e wou
ave een gUtlty of the completed crime.82
Lafave a~d Scott sim,ply interpret, without rationale, Wilson's inent _narrow y and Ja~e s mtent broadly. They view Wilson as intendmg the most precise d~ed imaginable-altering the numbers on
the ~heck-rather than as mtending a broader catego of act
.
tendmg to receive money from a bank by aptly alt I}
.s-mt Th
ermg an mstruey VIew Jaffe as intending a broader cate or of

men. . .
recetvmg stolen property-rather than intendt"ng a g Y
acts.
h
prectse act-rece.tvmgd t e particular goods that were actually delivered to ht"m

v tewe narrowly' J a ffie " t h ough t h e was committing a crime" b t
.
u
was not because the criminal law does not proht"b"t
st I
d s .
.
I
recetvmg untho ~n goof~- tmd~ly, vtewed broadly, Wilson intended to violate
ek aw bo korgery; ad he correct(y altered the instrument (so as to
mla eda ~n ~ay him money), he would have been guilty of the com
pete cnme.
t
80. MODEL PENAL CODE 5.0l(a) (Proposed Official Draft 1962)

8 1. s~~~ ~.g.' J. HALL, supra npte 1, at 594-99.
.
82. W. LAFAVE & A. Scorr, supra note I, 60, at 443.
83. The nonrational choice between broad and nar
.
.
I"
.
row Interpretations of intention recurs no matter how one states the
po ICY ISSUe. One might I .
I
wllson IS. harmless
.
b ecause If he keeps changing numbe
h ks h '
c aim t lat
k
rs
on
c
ec
,
e
II
never
take
a
'
t h e p1c pocket keeps sticking his hands in
kets so
,
nyone s money, whereas if
an unwarranted interpretation of W"l
poe
' meday he II steal. Such a claim involves
I son as someone mentall fi d
h
.
rat h er than on getting money One
ld .
.
y xe on c angmg numbers
cou JUSt as plaus1bly say "If

k
. .
nnpl)' pockets, you'll never steal anything, Th
.
h '
you eep st1ckmg hands in
thing will not cause harm foil
~
e e 1aim t at a defendant doing the "same"

ows rom an unwarranted narrow view of what the "same"
April 1981]
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Studies
623
Fletcher, desiring to inculpate on(y factually impossible attempters, sets out a more refined and elegant test than do the earlier
commentators. In essence, Fletcher argues as follows: The general
category of "attempting" must be objectively defined so as to satisfy
constraints proscribing vague statutes. What does it mean, in ordinary language, to attempt or try to do a certain something? To attempt something means that it is part of the rational motivation of
the actor that all conditions defining that certain something be present. How do we know if someone attempts [to fix a faucet on Saturday] when he fixes it on Sunday, believing it to be Saturday? We
know that he attempts the bracketed act only if a rational person's
motivation changes when he is informed of the counterfactual nature
of all the assumptions contained in the brackets. For example, someone who fixes a faucet while mistakenly believing that the capital of
California is Sausalito would not be affected if he were to find out
that Sacramento is the capital; 84 thus, he does not attempt to [fix a
faucet if the capital is Sausalito].
Fletcher's account of "attempting" is interesting,85 but its application to the cases hinges on how broadly or narrowly the crime
which is arguably attempted is defined. 86 Fletcher says the emptypocket pickpocket is guilty of attempted larceny because larceny is
defined as [taking money from a full pocket], and the rational pickpocket would not stick his hand in the pocket if he knew the pocket
were empty. The counterfactual assumption contained in the brackthing is. Narrowly viewed, Wilson repeats precisely the same acts. Yet we imagine the pickpockets as doing more apt versions of some broader category of acts.
One might argue that Wilson should not be convicted because had he obtained money
from the bank by altering numbers, that money would have been a gift from the bank rather
than the proceeds of forgery, whereas the pickpocket's getting money from a pocket is a theft.
Once more, the interpretation of the facts is indefensibly inconsistent. Had the pickpocket
received money through the precise means he used-for instance, after he stuck his hands in
an empfJ' pocket, had the would-be victim said, "You must be desperate. Here's a twenty for
your trouble"-then thai receipt would not have been the proceeds of theft. And had Wilson
received money by altering the instrument effectively, he would have been guilty of forgery.
In Ol!)' impossibility case, the precise means used do not result in harm. Otherwise, we would
not be talking about attempts.
84. G. FLETCHER, supra note I, 3.3.4, at 160-66.
85. Although it is not my main complaint with Fletcher's test, I should note that the test
lcaas to some peculiar results. Take, fer instance, the ease of United States v. Thomas, 13
C.M.A. 278, 32 C.M.R. 278 (1962), in which the defendant had sexual intercourse with a
dead woman. Has he attempted rape? Under Fletcher's theory, the defendant is lt.rs likely to
be convicted of attempted rape if he is indifferent to whether the victim is alive.
86. It is noteworthy that Fletcher makes the categorization errors he makes, since he
seems aware that LaFave and Scott have ignored the categorization issues I have described.
G. FLETCHER, supra note I, 3.3. 7, at 178-79.
250

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STANFORD LAW REVIEW
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eted definition of the crime affects his rational motivation. But

Fletcher says that Jaffe is not guilty of attempting [to receive stQlen
property) because he is indifferent to whether the property is stolen.
If a~rhi~g,_ Jaffe would be more willing to receive unstolen property.
Simdarly, Fletcher says that Wilson does not attempt to
[f~rge a check] because he is indifferent to whether the money is received by way of forgery. 88
Fletc~er engages in the simplest kind of nonrational interpretive

constructiOn her~. To ii?-culpate, he defines the attempted crime in
terms of the precise phys1cal acts consummating the harm. To exculpat:, he defines the att~mpted crime _iri broad, categorical terms, focusmg on the legal attnbutes of the situation. Thus, he does not ask
the c~tegorical question of whether the would-be pickpocket is at~e~pt~ng to [steal money from a pocket]. Of course, the pickpocket
1s md1fferent to whe~her the money received is stolen. Nor does
Fletcher define the cnme of forgery as [getting money from a bank
b~ a~t means] and as_k wh~ther Wilson has attempted that particular
c_nmmal a~t. ~f he d1d, W1lson would be guilty under Fletcher's ratJO~al motivatiOn test: Had Wilson known his alterations were ineffective to get money, he would not have made them.
~he wri~i?g in this field unifor}Uly supports exculpating defendan~s m tr~dltlO~allegal impossibility cases. Thus, a narrow interpretau_on of mtent10n must be used. It probably arises from an unstated
des1re to preserve the rule form of the criminal law in a rather trivial
case. A~l the P?sturing done to ensure that no one is convicted of
atte~~tmg a cnme when his acts do not precisely correspond to the
defimt10n of the consummated crime is charmingly ludicrous. We
tolerate far great~r vagueness in everything from the definition of
mu~der to sentencmg and probation policy. If anyone asserted as a
stra1ghtforw~rd political matter, that these cases were an impo~tant
bulwark agamst governmental arbitrariness and citizen insecurity I
suspect that the statement would be written in an ironic trope 0 '
more, I sense t h at "h
t e 1ady doth protest too much " w . nee
1
e suppress
our rea_ queasmess. about th~ breakdown of legalism by rallying
aroun? Its banner with staggenngly inappropriate gusto in unimportant circumstances.
87. ld. 3.3.4, at 161 62. It is interesting that f1etcher's argument
t
If
h
.
1s wrong on us own
one v1ews t e recetver of goods as wondering whether the good
I
erms.
er d th" 1 1
"b
.
s are sro en or rccov1
e , IS ega attn ute question w1ll matter a great deal ro the pe~~n' "
r" " 0 1
h
.
~ s ra 11ona mouvaIOn.
n Y a rat er self-destructive fence agrees to receive goods he kn
ew were recovered;
the hovering presence of the police deters most.
88. /d. 2.2.1, at 82.
April 1981]
251
625
2. Attempts at crimes unreasonab()' believed to be excused.

A second example,of unconscious shifts between broad and narrow views of intent occurs when the defendaht attempts to commit
an act under the unreasonable beliefthat it is excused. Assume that
the defendant is charged with attempted rape or with assault with
intent to commit rape. The defendant took steps beyond mere preparation 'to have intercourse with awoman he unreasonably believed
had given her consent. 89 Assume that a negligent mistake as to consent is no defense to a rape charge in the particular jurisdiction. 90
Ordinarily, however, an attempt or an assault with intent to commit
a crime requires purpose: that is, the actor must make it his object to
engage in that conduct. 91
The interpretive conflict appears irt decidingwhether purpose or
specific intent existsin this context; Tlie defendant asks the court td
take a broad, categorical view of the intent necessary for conviction.
He says, "I did not intend to commit rape, which is categorically
defined as an unconsentea-to act of intercourse. What I intended
was not rape, but consented-to intercourse."92 Prosecutors counter
that a narrower, act-focused view of int~nt is appropriate. They
state, "You intended only the precise physical acts you took or were
about to take-fondling, undressing, having intercourse-and these
acts would haue constituted rape had you proceeded." The choice between the constructions is ungrounqed; neither construct seems very
compelling. The notion that the defendant must intend the crime
seems unrealistic, since people never really intend crimes, unless they
get a perverse pleasure out of disobedience for its own sake. ;But a
counterclaim that we can convict 'Whenever a defendant intends the
precise physical actions which coqstitute the crime seems equally preposterous, since it implies that people focus in a morally meaningful
89. &, United States v. Short, 4 C.M.A. 437, 16 C.M.R. II (1954}.
90. Su id. at 444-45, 16 C.M.R. at 18-19 (citing ~cQuirk v. State, 84 Ala. 435, 4 So.
775 (1887}). Contra, Regina v. Morgan, (1976) A.C. 182.
91. &, Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935). Purportedly, a
crime of specific intent requires that the actor intend some harm beyond the physical acts
constituting the actus reus of the crime. A general intent is purportedly simply the intent to
do the acts. SuR. PERKINS, PERKINS ON CRIMINAL LAW 762 (2d ed. 1969}. However, the
distinction is problematic. Attempt is a specific intent crime; yet courts and commentators
alternate between more and less categorical characterizations of an actor's intention wtihirz
the attempt category.
92. Su W. LAt"AVE & A. Scorr, rupra note I, 47, at 358: "The crime of assault with
intent to rape clearly sets forth a mental element; the defendant's purpose in assaulting the
woman must be rape. This purpose of intercourse against the woman's will cannot be present
if the defendant believ~ven unreasonably--that the woman is consenting."
Critical
252
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253
Studies
627
way on the most narrow physical movements. 93

. "Policy" arguments are indeed made for choosing one view of
mtent over the other. For instance, even if it is appropriate to convict someone of rape who has intercourse while unreasonably believing that the victim is consenting, 94 one can argue that it is
inappropriate to convict someone of the inchoate crime of attempting
rape, because prior to the consummation of the harm the defendant
can still desist if he becomes aware of his mistake. Since rapes occur
over time, the victim generally has a number of opportunities to
manifest her nonconsent. On the other hand, one can argue that in
the most common attempt situation--one in which the defendant's
plan is thwarted by outside intervention-the simple fortuitous lack
of harm does not indicate the absence of culpability. We ought not
to presume that abandonment was likely. Under this view, the attempt is simply the consummated crime minus the harm. As long as
voluntary abandonment is a defense to criminal attempt in any case,
we need worry about but one group of potential defendants if we
inculpate negligently mistaken attempters. Persons interrupted by
external forces before learning of the victim's resistance will be
treated like rapists even if they would have desisted had they had all
93. As Michael Moore has noted, we can rarely assume when talking of "mental states"
that b~use. someo~e ":ants .x. it is also true that he wants Y, which is equivalent to X.
Thus, m ordmary ~caenufic dascourse, we believe that if X and Yare the same entity, state~ents true for X wall also be true for Y (~.g. , "The farthest planet from th-= sun has a smaller
dtameter than Earth" implies that "Pluto has a smaller diameter than Earth."). But in the
ordinary legal discourse on will, it is not true that if someone said, "I want the biggest room in
your hotel" and the biggest room was the dirtiest room, then one could infer a desire for the
dirtiest room in the hotel. See Moore, Tlu &mantics o/Judging, 54 So. CAL. L. REV. 151
208-14 (1981).
. 94. Beli~ving in "relatively strict liability" for rapistr-that is, believing that it is not
unjust to punash someone severely when he is "merely" negligent as to a material element of a
crim~ (here, the ~bsence of co":sent)-is supported by a disjoined view of the rape incident. If
we vaew the neghgent percept ton of consent as th~ morallly relevant incident and the intentional intercourse as a morally irrelevant incident, we are prone to view the defendant as
som~ne punished quite severely for negligence. If, on the other hand, we view the decision to
have mter~urse where consent is ambiguous as a .uparat~ decision, we are prone to be less
sympa.thetac to ~he defendant. It is not as if the defendant is "trapped" into criminality either
~navmdably ?rIll the course of doing perfectly ordinary or protected ac'". By avoiding sexual
mtercoursc wuh women who are not clearly consenting, the defendant can avoid criminality.
But while criminality is not hard to avoid here, the price--repressing certain vioient
forms of sexual encounters--may be one th:tt, as a matter of political/cultural belief, some do
not want to impose. Depending on how seriously we take the unconsenting victim's plight
and, on the other hand, how worried we are about chilling or suppressing "kinky " somewhat
violent sex, the r~ult in ~cQuirk v. State, 84 Ala. 435, 4 So. 775 (1887) (all~wing only a
defense ofno11-neghgent mastake as to consent), seems more or less justified. &~note 90supra
and accompanying text.
the opportunities the typical rapist gets to learn of the victim's nonconsentOne is more likely, I suppose, to be sympathetic to the po.ssibly
desisting defendant if, as a matter of ideology~ one stress.~ the mtentionalists' favorite capacity, that of the ongomg capab1hty for selfgovernance, or if, taking a result-o~ie_nted perspective, one is mo~e
sympathetic to def~nd~nts than to v1ct1ms ~f sexual ~saults. But ~h1s
"policy" dispute 1s s1mply obscur~d by mterpreuve co?.struct.IO~;
Since actors using standard legal discourse agree on the doctnne
that an attempt requires purpose, framing the intent issue broadly
simply ends the analysis.
3. 'Aiding and abettzng.
A third example of shifts between broad and narrow intent oc~urs
in doctrine relating to aiding and abetting the sale of a proscnbed
good. In People v. Cordon ,95 the defendant referr~d an underco~er
agent to a seller of marijuana and was charged w1th the acce~sonal
crime of 'facilitation. 96 Because neither purchase nor possessiOn of
marijuana by the agent is a felony, the defendant could not be convicted for aiding the undercover agent. Moreover, the appeals court
acquitted the defendant of facilitating the seller's feloni~us sale .because the seller could not possibly have intended to corrtm1t the cnme
97
of selling marijuana to the agent at the time of the referral.
The interpretive problem here is apparent: The court assumes
that when the statute says that the facilitation must aid a party who
"intends to commit a crime," a categorical intent-to sell marijuana
generally, rather than to commit a number of specific crime~is irrelevant. The court implies that even a drug dealer constantly m the
business of making sales never intends to commit a crime until the
moment of commission, because he never intends to sell to the person
he ultimately sells to. But why stop with the identity? Does a drug
dealer ever intend a crime unless he knows beforehand exactly when
and where he will sell, or what the buyer will be wearing? While the
result seems somewhat silly here, the narrow interpretive construct
the court uses is neither uncommon nor attackable in anything but
95. 32 N.Y.2d 62, 295 N.E.2d 777, 343 N.Y.S.2d 103 (1973).
.
96. Se~ N.Y. PENAL LAw 115.00 (McKinney 1975), which provides that a person as
guilty of criminal facilitation when "believing it probable that he is rendering aid to a pers~n
who intends to commit a crime, he engages in conduct which provides such person wuh
means or opportunity for the commission thereof and which in fact aids such person to commit a felony."
97. 32 N.Y.2d at 66, 295 N.E.2d at 780, 343 N.Y.S.2d at 106.
254
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STANFORD LAW REVIEW
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result-oriented terms. 98
4.
Abandonment.
Broad and narrow views of intent also frame our abandonment

doctrine. Suppose a defendant sets out to spoplift from a department
store. _He has taken steps sufficient to constitute an attempt, were he
to be mterrupted by external forces. However, he stops of his own
accord because: (a) he decides that stealing is bad; (b) he decides
that stealing is too risky; (c) he spots a warning that "Shoplifters will
be apprehended and prosecuted"; or (d) he spots the store detective
watching him. Many jurisdictions would exculpate the defendant in
any of the first three situations. But none would allow a voluntary
abandonment defense in the last case. They would find the defendant guilty of attempt if he decided that unpredicted legal consequences would befall him and so decided "to postpone the criminal
conduct until a more advantageous time or to transfer the criminal
effort to another but similar objective or victim."99 In other words
. .
.
'
usmg mterprettve construction language, if the defendant abandons
becau~e of fear of legal consequences on the particular occasion, he
has st1ll demonstr~ted an intent to commit the categorical crime of
theft, but has simply shifted the instance of the category.
The application of this P,~in~iple that re_nunciation motivated by
fear of legal consequences 1s madequate 1s rather uncontroversial.
But the "fear of legal consequences" doctrine expresses an ambivalence of our liberal legal culture about deterrence in criminal law
and more generally, about the purported union of selfish and sociall;
"
98 .. A res~It of con~iction ~ould have been reached by applying an equally arational

broad VIew of mtent, as IS done m cases of transferred intent.
When ~ defen~ant i_ntentionally shoots at X, but hits and kills Y, courts traditionally
hold her gUJlty of mtenuonal homicide, saying the intent transfers from one victim to an-
otl~er. Su, e.g.~ Mayweather v. S~ate, 29 Ariz. 4~, 242 P. 864 (1926). The defendant might
cla1~ that wh1le s~e may be gUJity of attemptmg to kill X, the killing of y was at worst
negl_1gent. That c_laJm gets lost in the interpretive shuffle when the court says that the defenda~H Intended to k1ll a person, and then it defines that intent, rather than the narrow intent to
k1ll X, as the relevant, requisite intent for murder. Similarly, the Cordon court could have
~ound that the defendant displayed the int.,nt to sell drugs and defined that as the requisit.:
an tent.
April 1981)
255
Studies
629
.
d IegaI regtme.
.
too
beneficial behavior attained in a properly destgne
While art avowed purpose of punishment is ~o _influen~e. condu~t b_Y
Itering the relative benefits and costs of cnmmal actlvtty, an mdt:idual who calculates whether the benefits o~ crim~nal condu_ct o~ a
particular occasion outweigh th~ e~pected costs 1s constder~d ant~soctal.
He is deemed to transfer hts mtent to more appropnate :trcu~
stances. Because of our discomfort with the purely calcul~t~ng ct~In we convict the attempter who renounces only because tt ts not m
~~s 'interests this time to proceed with the crime. Of course, though,
this discomfort clashes with the philosophical underpinnings of a cu~t u re tltat exalts selfish calculation and views deterrence as . an ordtnary and acceptable aim of the criminal code. In a norm~tt~e sense,
someone who fails to pursue a criminal plan because cnmmals are
punished is simply re~ponding to. desired signals. We expect and
want calculation; but 1t must remam somewhat general to be decent
and respectable.
The feeling of discomfort that I suspect accompanies this recognition qf ambivalence about when it is appropriate to excuse dete~red
behavior can be avoided through inexplicit interpretive constructwn.
If we view an abandoned attempt as requiring the intent to do the
crime then the defendant who spots the store detective can be inculpated' only if we say that he has not abandoned a generalize? categorical attempt to commit larceny. That is, w_e must treat hts steps
towards crime in the store as steps towards an znstance of the category
of larceny, not as steps in the commission of that particular l~rceny_. We
exculpate the defendant who stops when he spots th~ war~mg sign by
interpreting the relevant requisite intention as an mtentwn to commit only that larceny. Only then are we sure he has abandoned the
malignant intention.
'This particular interpretive constructi~n seems defe~sible, at least
at first blush. The person who reads the stgn has not dtscovered anything unique to the particular situation. !here appe~rs to be no
reason not to equate the abandonment of thts larceny W_tth the<abandonment of larcenies in general, because o,ther larcemes _appear to
pose the same threats. But imagine that one defendant decides not to
crack a safe because he discovers there is an alarm system he cannot
. It ma_Y be fair to presume that peoplegeneral(y set out to kill particular people rather than
~o k1ll, wh1l~ ~e?ple set out to sell drugs rather than to sell them to particular people. But this
IS a p~oba?I~IS!Ic gene_ralization rather than a necessary truth. Some killers are more interested m k1lhng than 1n killing particular enemies; many drug dealers really do select the
people to whom they sell.
99. MODEL PENAL CODE 5.01(4) (Proposed Official Draft 1962).
100
For a fuller account of the significance of unifying the selfless and selfish to the
legitima~ion of capitalist cultures, see Kennedy, Tlw Structure of Blacl.:stone's Commentariu,. 28

BUFFALO L. REV. 205,211-19,258-61 (1979); D. Kennedy & M. Kelman, The I~terpretauon
of Political Dreams: The Search for Efficient Tort Rules Qan. 1981) (unpubhshed manuscript draft on file with Stanford Law Review).
256
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STANFORD LAW REVIEW
Critical
(Vol. 33:591
crack, while another desists when he discovers there are alarm systems in general, none of which he ever can hope to crack. The first
safecracker is looking for an easier safe system to break, the second
for an object of his larcenous desires that is unprotected .. Both could
be seen as simply looking for safer targets. Yet it is implausible. that a
defendant who abandoned his attempted crime because-he read a
sign, "This Safe Protected by Alarms" could be convicted while one
who read a sign, "Safe-crackers will be Apprehended and Prosecuted" would be acquitted. Both are simply being .informed of the
riskiness of their activity. It is simply unwarranted assertive construction to treat these defendants as renouncing larceny because
they renounce this larceny. It is not clear how we would ever know
tha.t someone is moving on to a more advantageous time and place
for his mischief, rather than abandoning a life of crime because he
has at last unsJ.erstood the social signals about the costs of crime. It is
quite plain we cannot know that, because the social signals concerning the propriety of cost-benefit calculation .are ambivalent and
uninterpretable. We suppress the recognition of this ambivalence by
asserting clear cases of total acceptable renunci(\tion and by blocking
the knowledge that in a world where selfish calculation is acceptable,
all renunciations are in significant senses partial.
5. An analogue: mistake doctrine.

An analogous categorization problem involves broad and narrow
views of defendants' mistakes (as opposed to intent). Assume the
mens rea requirement for larceny i.s such that defendant is excused
unless he knowingly or purposely takes the property of another. If
the defendant takes someone else's umbrella, believing it is his because it looks like his-a classic mistake of fact-he will be exculpated. 101 Of course, if the crime required only negligence as to
whether the seized property was that of another and a reasonable
person would not have mixed up the umbrellas, the defendant would
not be exculpated. If, on the other hand, the defendant takes an
umbrella believing that theft is not proscribed-a classic mistake of
101. Mistake of fact exculpates if it negates the purpose, knowledge, or recklessness required to establish a material element of the offense. Su MoDEL PENAL CODE 2.04 (Proposed Official Draft 1962). Thus, if one must knowingly or purposdy deprive another of his
property to be guilty of larceny, entertaining a mistaken belief that the property one takes is
one's own constitutes a defense. If, on the other hand, larceny required only negligence as to
the ownership of the property, the mistake of fact would not be exculpatory unless it were
reasonable. &~. ~.g. , G. WILLIAMS, supra note 1, 32, at 79.
April 1981]
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631
law-then he will be guilty. 102 Finally, if the defendant takes someone else's umbrella because he believes it. to be his own owing to some
legal error---e.g., believing it to have been a gift though the gift was
in fact incomplete-he has made a mistak~ ,of "legal fact." 103 In this
case, legal theorists split on the questio!l of culpability. 104
Tllese traditional accounts are nonsensical without considerable
interpretive construction. 'The mistake ofJegal fac~ category is far
more complex and troublesome than I have indicated. The defendant's mistake of legal fact may not be one th~t is well-integrated into
the dominant culture (e.g., whether one has received a gift or not),
but rather be d~sorientingly deviant fro~ the domin~nt cultural
norms. 105 For example, suppose the defendant claims that he
thought the umbrella was "his" because he believed he was legally
entitled to take an umbrella whenever he-WaS sick and it was raining
hard. The relationship between "legal facts" artd, the "offehse in
chief' may be far more intimate than the Model Penal Code suggests, if one znterprets the legal system as something of a seamless web
rather than a separate series of pronouncements. It is not clear what
it means to know the lawsagainst theft'but to make "big'~ mistakes
about what property belongS' to you and what property does not.
Take mother mistake of legal fact: A defendant accused of bigamy
claims that he knew bigamy is illegal. However, he believed he was
divorced. at the time of his second marriage because he thought phys102. People are generally found strictly liable when they plead mista~es about the content of the law. &e, ~.g., G. WILLIAMS, .rupra note I, 100 (discussing the "doctrine" that
ignorance of the law is no excuse). This general formula is too broad. There are constitutional limits on punishing people unless they actually know a statutory proscription or could
be e"xpected to follow the statutory norm simply by observing the ordinary behavior in the
community. When a statute demands "unusual" steps be taken, a person without actual
notice will be exculpated. &~, e.g., Lambert v. California, 335 U.S. 225 {1957)' (declaring a
law requiring a felon to register upon entering Los Angeles void as applied to someone UQaware of the statute). It seems that people are culpable for negligent mistakes oflaw and that,
for the bulk of "ordinary" offenses, the failure to know the law is simply conclusively pre
sumed to be negligent.
103. "Fhe Model Penal Code describes it as a mistake as to some legal rule other than
the law defining the offense., MODEL PENAL CODE 2.02, Comment, at 131 (fcnt. Draft No.
4, 1955).
104. Id., su State v. WQOds, 107 Vt. 354, 179 A. 1 (1935), where de.fendant was found
guilty of adultery though she was unaware that the personJhe slept with had obtained a
legally improper divorce. While she was aware that adultery is illegal, she was unaware of
some legal fact (whether he was married or not) relevant to applying the statute.
105. For a full~r discussion of disorienting deviance, see A. Katz, Studies in Boundary
Theory 43-71 (Mar. 1976) (unpublished manuscript draft on file with Stanford Law Review).
Some of Katz's method, though not the specific insights into disorienting deviance, can be
seen in Katz;Studzes in Boundal)' Th~ol)': Thru Essays in AdJudication and Polziid, 28 BUHALO L.
REv. 383 (1979).
- -. -
--~--
--~~~---------------------.,.------
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258
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STANFORD LAW REVIEW
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ical separation from his first wife was legally equivalent to divorce.
We may say that the defendant did not respect the bigamy "regime"
if he was unaware of the difficulty of breaking up a marriage.
Despite the temptation to interpret the legal regime as a system to
inculpate in both of these cases, traditional liberal legalist attacks on,
for example, law by analogy or vague proscriptions of wrongdoing
imply that it is inappropnate to talk of hovering "legal regimes" and
general legal principles. In this interpretive tradition, there is no
general law of property/theft, ju~t particular proscriptions againstlarceny, embezzlement, and fraud. And to violate these proscriptions, one must possess a blameworthy mens rea which can be negated by mistakes.
If we look closely at the case of the umbrella "thier' who falsely
believes that umbrellas go to those who need them, we can see the
degree to which results are determined by slightly shifting the
breadth of focus, causing a subtle shift in .our perception of whether
the defendant's error was a particularized error within a settled regime or an error which, if made more generally, would undermine
the regime itself. We should also recognize that we decide the case
not by explicitly defending our focus, but by asserting that the mistake falls into one or another well-settled doctrinal category; we then
get to the bottom-line result, the decision to inculpate or exculpate,
simply by restating the traditional doctrine.
If we take the broadest View, the mistake will be doctrinally labeled as purely legal, and we will intone the principle that ignorance
of the law does not excuse. The defendant must be inculpated because he was unaware that stealing was illegal. How do we convince
ourselves that he thought stealing was legal? He was unaware that
what he did was illegal, and what he did was an instance of stealing.
Even ignoring that this syllogism is illogical, this view is questionbegging, for the defendant's act was not stealing unless the defendant
had a culpable mental state. Whether he had a culpable mental
state depends on the issue at stake-the categorization of his mistake.
Alternatively, using an intermediately broad focus, we can inculpate the defendant not because we convince ourselves he was utterly
ignorant of the offense category, but because he was unaware of the
boundanes of the offense category. That is, the defendant knew that
stealing was wrong, but he did not understand the category well
enough to identify his conduct as an instance of stealing. If we take
this focus, presumably we will also label the mistake a "mistake of
April 1981]
259
Studies
633
law," disingenuously viewing a mistake about the boundari~ ~f the

law as indistinguishable from ignorance of the whole prc:>scnption:
Finally, under the narrowest view, we exculpate, labeling the mistake purely factual. Under this narrow rule, we see t?e defend~nt ~
IS
meone who knew both that stealing is illegal and that stealmght
w
the taking of property that is not one's o~n, but was unaware t a
.
the particular property he took was not h~ own.
To the extent that the last exculpatory mterpretation feekunnato us though it is' a perfectly plausible appfication of the Model
ura1 t
,
r d
k
Penal Code view, it is because we sense that the de1en. ants mis~a e
is unlikely to be confined to this particular factual s"ettmg;-we bel~eve
him dangerous, because there will be a large nu~ber of settm~s
where his deviant views of property would. ~e app~Icabl~; But this
sense is merely a vision that one can recognize _devi~nce when one
sees it," precisely the sort of instinct a l~gal regi.me IS ~eant to suplant. Either of the first two interpretations avmds tne sense that we
have abandoned the strictures of legality, while it gets the sam~ substatltive results we would get in a regime whe:e fact-finders JUdge
conduct without the mediation of legal categones.
D.
Broad and Na"ow Vzews of the Defendant
A fourth unconscious interpretive construct involves shifts between broad and narrow views of the defendant. T~e defend;mt can
be viewed as a person with specific traits or as an mstance of some
broader class of people.
Concu"ence doctrz"ne.
The shift between broad and narrow views of the defendant occurs in concurrence doctrine, which requires a u~ion bet~e:n actus
reus and mens rea. Doctrinally, blameworthiness m the cnmmallaw
is not supposed to be a hovering wickedness; it is su?posed to attach
to particular harmful acts. Thus, in Regz"na v. Cunnzn?ham, ~he co~rt
held that a defendant who negligently broke a gas !me while t_rymg
to steal coins from the gas meter had to have purposely, knowmgly,
106
or recklessly poisoned the victim to be convicted.
The cou~t refused to transfer the requisite mental state from the defendant s attempt to steal coins to the poisoning. Except for felony-murd_er, we
(purportedly) do not transfer or impute the mens rea of one cnme to
another one; on the contrary, the actus reus and mens rea must conl.
106. (1957) 2 QB. 396, 401.
260
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634
(:~d
r:
STANFORD LAW REVIEW
[Vol. 33:591
r:~-~ha~l de)~onstrate, concurrence doctrine can readily be
defendant andl Yh. ee_n mterpreted away by altering the focus on the
IS circumstances.
a A~s~me that larceny and poisoning are the two different crimes in
unnmg. am' and that poisoning can be committed
lessly, or negligently 101 Th b d h f ;
purposely, reckhavior can be ma~ipulate~ ;:at~o owaoy~us: the defendant's bedefend t
d f
sume we want the

gas me:n con~cte o negligent poisoning, believing that breaking a
reasona~~tose an u~~easonable, unjustified risk of poisoning that a
man ~ou not have suffered. The Model Penal Code
. .
definldltlbon of n:ghgence reql,lires that the risk taken must be one th t
wou . t e avoJded
by .a reaso
Th
.
. na bl e person ".m the actor's situationa"
f em erpretive questiOn IS whether to view defendant as am b.
o a narrowly defined class--the class of as meter th.
em er
broader class of persons-those dealin
. hg
. Ieves-or a
those people dealing with poisonous s~b:;:n:: i:eg::~::. g~~eral ror
cus on the
.
h defenda
h
n t's most particularized
situation that of awe
th"tOf
we see t at e may have been as careful as an h" f 'r
.
Ie'
around carelessly-whil f h. .
.
. Y t Ie -tor thieves rush
e 1 IS Situation IS that of the ty ical
terman, he may have been unreasonably careless. If the na~ow v::
107. MODEL PENAL. CoDE 202 (Proposed Official Draft 1962) states
"(I)
a person IS not guilty of an offense unless h
d
recklessly, or negligently, as the law rna

.
. he acte purposely, knowingly,
ment of the offense.
Y reqmre, Wit respect to each material ele-
"(2)
Kinds ofCulpabilzljt .fH.Jind.
"(a)
:;a-pose&.
A person acts purposely . . .
"(I) if . . . it is his conscious object to engage in conduct of that
"(b)
ture or to cause such a result . .

/(;
.
"nowzng&.
na-
"(c)
Reddess&.
"(d)
that the e;;:~:~s;;:~~~t d::~a:~s :i~~bsta~ti;l andh~njustifiable risk

h
resu t rom IS conduct. The
risk must be f
and purpose ~f st~~ a:t::.:u::~c::';;;et~hat .considering the nature
h.
. d.
e Circumstances known to
tm, Its tsregard involves a gross deviation li
duct tht a law-abidin
~om the standard of con":(egligmt&.
g person would observe Ill the actor's situation.
"A
person
h respect to a matenal
. element of an ofwh acts reckless!
.
y w.a
fense
~ person acts negligently with respect to a material element 0 f

o ense when he should be awa
f
b
.
an
that the material element exis::
:;,~ sta~u~l and ~njustifiable risk
risk must be of such a nature and d resu ~ rom hts conduct. The
perceive it, considering the nature andegree t at th~ actor's failure to
circumstances known to hlm .
I
purpose of hts conduct and the
mvo ves a gro d
fi
dard of care that a reasonabl~ perso
ldssb evtat~on rom the stan0 wou
0 serve In the actor's situ~
ation."
:r
April 1981]
261
Studies
635
is appropriate, a seemingly perverse result occurs: Thieves are less

likely to be inculp~ted for negligent poisoning than are gas line repairmen because, if we focus narrowly on their particular situation,
they can be expected to take fewer precautions.
Before dismissing the narrow focus, one should note that ~hrough
a second manipulation of interpretive focus, the defendant can more
readily be convicted through use of this focus. Model Penal Code
definitions of both recklessness and negligence require the cre~tion of
substantial and unjustifiable risk. Risks created by repairmen are
generally justified by the social value of the repairs. But the same
risk may be unjustifiably high if one is talking about the more focused, 11arrower version of defendant's activity-stealzng. Nearly any
nsk of poisoning is unjustifiably high if one weighs the risks against
the benefits of stealing, a presumptively socially valueless activity.
Ultimately, of course, a narrow focus on the defendant's activity
undercuts concurrence doctrine. Nearly any defendant caf! be convicted <?fa higher crime which can be committed negligently as well
as rec;klessly, and many defendants can be convicted where the
high!!r crime must be committed at least recklessly, once one assesses
the justifiability of the actor's risk-taking in the criminal conte?C-t he
actually acted in. A conviction-prone interpreter can apply a methodologically nondefensible broad focus in assessing what constitutes
reasonable precaution and an equally indefensible narrow focus on
the nature of the risk, and thereby interpret away the concurrence
doctrine. 108
108. To illustrate further, assume that there are two different classes of fire offenses,
malicious damage (burning fields) and the more serious offense of arson (burning structures).
The black letter concurrence rule would state that if a person intentionally burns a field,
"unaware" of the possibility that a structure will be burned, he cannot be convicted of arson.
But it isquite clear to me that if we take two person5-{)ne having a marshmallow roast with
his Boy Scout troop and the other deliberately burning a field-who pose equally smail risks
of burning a building and are each aware of this risk, the malicious damager's risk-taking
activity will be interpreted narrowly (and thus be deemed unjustifiably risky or reckless) to
overcome the supposed strictures of concurrence doctrine.
Since the interpretations will be made by fact-finders (prosecutors deciding which crimes
to charge, juries instructed by judges who read them abstractions about "substantial and
unjustifiable risks"), it is not likely that appellate court decisions will show the extent of the
breakdown of formal concurrence doctrine. Nevertheless, one can find ar.pellate cases where
the breakdown is rather overt, see, e.g., Caywood v. Commonwealth, 13 Ky. Op. 576 (1885)
(defendant may be guilty of poisoning though unaware of the poisonous character of the drug
given to excite the animal passions of a girl as part of what was undoubtedly another crime-seduction). Accord, State v. Schaub, 231 Minn. 512,44 N.W.2d 61 (1950) (defendant tried to
commit suicide by gas; when landlord later flicked light switch, spark ignited gas; building
blew up, killing landlord's wife; no issue of mental state vis a vis death considered in discussing conviction for second degree manslaughter); People'v. Vizzini, 78 Misc. 2d 1040, 359
262
636
STANFORD LAW REVIEW
2.
Critical
[Vol. 33:591
Provocation.
pro:a::;i~l~ ~~~:r~:d and narro~ ~ie';s ?f the defendant is explicit in

is p . h d I
e. In many JUriSdictiOns, an intentional homicide
th umsd e ess severely if the defendant was reasonably provoked
e bra e of the crime may be reduced to manslaughter to9 Th~
pro
.
. t h. at there
exist em, as courts''o
. .
. and commentators'" recogmze,
IS
d." s no convmcmg Interpretation of reasonable provocation Th
or. mar man would never be provoked to take another life by. jibese
as:~~~~' ~r e~en the bad fortune of discovering adultery in pro~
gr . .
o w en we say that a defendant was reasonabl
r
k
to kill, .we cannot
p ~vo ed
of
. . mean that the defendant's con d uct wasy typical
peop Ie m simi1ar situations. 11 3 Nor does the
define provocation:
fendant, with all his fears foibles and d" bT
.
d
Isa I Ities, would obvzous{y be
provoked to kill
someone just did. un er t e same pressures he faced, because that
sonablenes~ accept~bly
sor::;:~:~~tv:~k: ~~er~:~
'
proZ~u;;st~~c:~:i:~r i~~~~~1~a~e;~a~~~~i~~:~~~=n~:~~dant
din th_e
to be compared F or mstance,
con
a court may say that t 1uct Is
that a particular defendant is enerall .
I .Is Irre ev~nt
whether a prostitute's taunts on
t~ subje~t ~:p;::;n~~le~:~~~~~
N.Y.S.2d 143 (1974) (firefighter union leaders who d l"b

.
with reckless endangerment for calling a walkout co e I erat~ly falslfie~ ~ strike vote charged
of mental state on reckless endan
' urt susta10ed conv1cuon though the proof
torting strike vote, seems rather ~~:;:;~)as opposed to coercion charge inherent in dis109. Se~, ~.g., MODEL PENAL CoDE . 210 3(1)(b
"Criminal homicide constitutes rna
h
h
) (Proposed Official Draft 1962):
a h "d
h"
.
ns1aug ter w en
be murder IS committed under the . ft
f
. . .
omlcl e w lch would otherwise
. h h
10 uence o extreme mental 0

1 .
T
r emotlona disturbance for
w h IC t ere is reasonable explanation
or excuse. he reasonabl
f
h
.
f
.
eness o sue explanation or
excuse sh all be determined from th .
.
e Vlewpo10t o a person 10 th
t , .
.
e ac or s situatiOn under the
Circumstances as he believes them to b " A d D
MINN. STAT. ANN. 609.20 (West 196~) Nc~r.
EL. CoDE ANN. tit. II, 632,641 (1979);
UTAH CoDE ANN. 76-5-205 (1978). , . . ENAL LAw 125.25(1)(a) (McKinney 1975);
110 See, ~.g., Bedder v. Director of Publi p

.
(impotent defendant insulted by prostit t ,
c r~secutiOns, [1954] I W.L.R. 1119 (H.L.)
f.
u es taunts 1s not reasonabl
k d 'f .
IS 1yplca1 on1y o Impotent men).
y provo e I his reaction
April 1981]
263
Studies
637
ing; 114 commentators respond that the defendant's reaction ought to

115
be cQm.pared to the reasonable impotent man's.
Presumably, everyone tries to exclude from his vision of the typical man to whom the
defendant is to be compared all the narrow-focused traits the defepdant has that the criminal law is designed to alter-hotheadedness,
hypersensitivity, proclivity toward violence-but this line ultimately
collapses. Of course the criminal code is not trying to deter or to
blame impotence itself. But if the impotent as a group pose a menace because impotence is associated with hypersensitivity, if they are
prone to violence when confronted by situations that routinely confront people, it is not clear why we would want to exculpate them.
Ultimately, the real battle here is between our asserted determinist
(excusing) notions of impotence and our intentionalist (inculpatory)
models of hotheadedness. Unconscious interpretive construction
avoids this more openly political battle: As we take a broader, more
categorical view of the typical provoked defendant, fewer and fewer
defeqdants appear to have acted reasonably.
3.
The omission/commission problem.
Broad and narrow views of intent, along with disjoined and unified accounts of incidents, are unconsciously e1pployed in trying to
solve the omission/commission problems in the criminal law .. Sine~,
the criminal law requires that the defen<;lant perform some vpluntary
act, a common issue is whether the defendant has commmitted some
116
act or simply failed to act. Vnless the qefendant has a duty to act,
an qp1ission is not culpable. Of course, the line between. omissions
and commissions is blurry. There is considerable circularity in claiming th~t a defendant can be culpable only if he has committed an act,
when we often describe an event in active conduct terms rather than
passively if we have already (somehow) determined. that the party is
culpable. For instance, a parent who does not fled a child may readily
be said to starve the child-to commit an act-while a stranger would
Ill. .Su' ~g.

. : '. G . FLETCHER, supra note I, 4.2.1, at 247
112. See Withams Pro()OCation and the R.
.
113. We might m~an that the t ical easonable Man, 1954 CRIM. L. REV. 740, 751-52.
FLETCHER, su"ra note I 4 2 I at 248YPW hplerson would be more lik~& to kill. Su e.g G
r
, ,
ec s er & M' h 1 A R.
'
'
II, 37 CoLUM. L. REV. 1261, 1281-82, (1937) ("Wh'l I.e _ae'
. a~tonal~ o.fthe low o.f Homicide
most men do not kill on even the g
. I e It IS true, It IS also beside the point that
ravest provocauon- the po'10 t h
h
'
wou ld b e moved to kill
d
h
'
the
IS t at t e more strongly they
1ess oes [t e actor's]

b
.
succum 10g serve to differentiate his
character from theirs."). But th' r
IS aormu 1a su 1I evades th
. .
.
assess10g thestiuallon the average person"[;
"
I
e categonzauon problem: When
acter part of a quast~atema/ Iliuatti>n or not~ces, are e ements of the particular person's char-
114. See Bedder v. Director of Public Prosecutions, (1954]1 W.L.R. 1119 (H.L.). But if.
Regina v. Raney, 29 Crim. App. 14 (1942) (provocation inherent in knocking out the crutch
of a one-legged man judged by the reaction of one-legged men to the incident).
115. See, e.g. , G. FLETCHER, supra note I, 4.2.1, at 248-49.
116. See Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962) ("There are at least four
situations in which the failure to act may constitute breach of a legal duty. One can be held
criminally liable: first, where a statute imposes a duty to care for another; second, where one
stands in a certain status relationship to another; third, where one has assumed a Contractual
duty to care for another; and fourth, where one has voluntarily assumed the care of another
and so secluded the helpless person as to prevent others from rendering aid.") (footnotes omitted).
'I
i?
':
,, I'I
264
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638
STANFORD LAW REVIEW
[Vol. 33:591
be said to foil to fled-a passive nonact. tt 7

Consider the following case. Defendant, a skid row grocer, routinely sells wood alcohol to chronic alcoholics, knowing that they
drink it with only moderate ill effects. One day, he switches the
brand of wood alcohol at his store to a brand with higher alcohol
contents; he is perhaps knowing, perhaps reckless, perhaps negligent
as to the fact that they will die if they drink it. The bottles, though,
contain warning labels which the chronic alcoholics could, at least in
theory, read.
If we view this as an omissions case, a case in which the defendant
"failed to warn," it is probable that defendant will not have the actus
reus for homicide, since there is no "duty to warn." The legal deduction from the interpreted facts is orderly and rather clear-cut. On the
other hand, if we conceive of this as a poisoning case, then we are more
likely to inculpate the defendant.
Of course, nearly every poisoning case can be interpreted in an
omissions mode (depending on both the time-framing characterization and the breadth of focus). At some point in time after a victim is
likely tp ingest a poisonous substance, the defendant merely "fails to
warn" the victim. Failing to warn is temporal(y most proximate to the
death. Generally, though, we treat the earlz"er placing of the poison as
the more morally relevant act. The grocer, however, is not traditionally held culpable for this earlier act, because it seems to resemble a
"routine" commercial act, placing an item out for sale. But we now
see the unwarranted interpretive construction. If we focus broadly
on the grocer's act-as an instance of the broad category of routine
commercial activities by grocers-it seems unexceptionable. Coupling this broad view of the defendant's conduct with a time-dissociated or -disjoined view of the poisoning incident, we have a routine
sale followed by a morally'but not legally culpable failure to warn.
If, on the other hand, we focus more narrowly on this grocer's acts in
these particular circumstances-making more toxic wood alcohol
available to an unusual group of customers who are likely to ingest
the wood alcohol-and then interpret that sale plus the subsequent
failure to warn as comprising the typical mode of a single unified
poisoning incident (secretly making poison available for ingestion),
117. G. FLETCHER, supra note I, 8.2.3, at 601-02 recognizes this point. Fletcher uses
the active verb form to determine the proper legal results, though the general verb form may
simply reflect probabilistic assumptions about how events usually happen. For example, if
general{r speaking, strangers allow lo drown rather than drown, we may use the passive verb
form as a matter of supposition even when blame is more reasonable in the particular case.
April i981]
265
Studies
639
the defendant appears more culpable. tta

.
The interpretive construction is mo:e entrenched 1? the . co~;
rnonly debated omissions case of the eas1ly saved dr~wnmg ch1l~.
Whether the would-be defendant who stands .ne~rby ~~ c~aracten~ed
as "failing to rescue" or as "drowning" the ch1ld 1s ~gam mte~p~et1ve.
plaus1ble
descnptwn of
THe ac t..1ve verb-form ("drowning") is a. more
if
we
think
of
the
defendant
m
h1s
prec1se
clrcumstancese
t h e seen
.
f h.
1
near the.child, viewing the child-than if we t~mk o 1m s1mp Y as
an znstance of all of mankind unrelated to the ch~ld. ~hen oppone~ts
of liability in the drowning case speak of the ma~1hty to fully discharge a duty to save, t2 they are unconsciously seemg the defend~nt
h"s broadest terms-as a member of the broad class of mankmd
m 1

h
responsible for seeking out whatever drownmg VICtims t ey can
find-rather than as the particular person at the scene of the drowning.
.
I
h
Similarly, applying the ordinary or c~tegoncal r;n~nta ,~tat~ t? t ~
particular defendant may cause confuswn. In typical .omissions
he defendant does not deliberately seek the proscnbed result;
cases, t
I
d d
we are unlikely to use active commission verbs un ess our stan a:
case is one of purpose. If, for instance, someone who st~nds ~y wh~le
a child drowns has said to a parent, "I'll watch your k1d sw1m wh1le
you're away" in order to ensure that the ki? dies? we wo~ld be prone
to call this an intentional killing, not an mtenuonal fa1lur~ to save.
Presumably, mens rea requirements can account for a particular defendant's culpability; it is unnecessary to find the absence of an actus
reusJ2t because most "similarly situated" persons would lack the
.118.
~letcher may acknowledge this, id.
at 602, but I sense he views these cases as more
extraordinary than I am suggesting.

Ges
The Altruistic
119. See, e.g., J. HALL,'supra note I, at 210; Dawson, Negotiorum
uu
Intermeddler 74 HARV. L. REV. 1073, 1101-08 (1961).
~Kl Good &manlanism, 5 PHIL. & Pus. AFt". 381 (1976); Trammel,
120 . .xe,
e.g. '
etmg,
.
F
h t
Toole 'J- Moral .51 mdry ltinciple, 5 PHIL. & Pus. An. 305 (1976) .. or. a response,somcw a
parallel to the : e presented here, see BrOQt, Dischargea!Jllzl)l, Optzonahl)l, and the Dul)lto Saue
.
Liues, 8 PHIL & Pus. AtF. 194 (1979).
121. Fl~tcher actually does argue that whether.~ particular defendant has active 1Y
kill d ought to be answered on the basis of our suppostllons about wh_cther most pcop_lc wh~
do ;he physical deeds that the defendant did are killers. The l)lpual fat lure to. rendc~ atd ~.~cs
form of harm This explains, I believe, the mtUJiwe odd11) of Ill

not constitute a pnmary
h
1 11
dl b t
tending" a particular result by failure to intervene. I agree wtth F1etc er w IO e lear1c Y. u
I draw from his observation the conclusion that intuitions and common verbal practices,
grounded as they are in generalizations that fit particular circumstanc~ poorly, arc a m~st
untrustworthy basis for stable, ultimately legitimated argument. _Makmg ~eoplc rccogm~.c
that they are simply falling back on a probabilistic-but not es)>cc:~lly_ apphca~l~--".~ppos
tion is a standard way of unsettling their sense of making reHecttve rational dt.-ctstons of the
sort that rationalist legal systems are supposed to make.
266
640
STANFORD LAW REVIEW
Critical
[Vol. 33:591
mens rea requisite for conviction.

Drowning incidents Iik
.
ble: In the standard a~tiv e pmsonm~ Incidents, are arguably divisivictim in peril of shovingeh~se~ weh ocus on the act of putting the
,
Im m t e water and I t th .I
rescue, the more temporall .
d'
'
e
e a1 ure to
picture. The categorical f~ Imme Iate cause of death, fade from the
rescue.
cus suppresses the relevance of failing to
The political debate over

d . .
that I need only mention the on:;ss~o?s ~tie~ Is sufficiently familiar
tive battle. At the level of c . u~ ~r. yn~g sigmficance of the interprethe dominant classes are n:tmmat"JU~tice system results, members of
circumscribed charges of fail inpa;o ~~~s~~ threat.e~ed by. inevitably
these charges would like! b g
ge positive duties, though
than most charges At ~h e.md orle r~ndomly distributed across class
e 1 eo og1cal level th
h h
l
'
oug , t e sense of
b amelessness and self righte
correctable suffering o~ oth ~u.sn~ss one can feel in the face of the
rigid distinction between acetts Isd uttressed forcefully by drawing a
s an nonacts Once
h
.
twn between blame and c~.
.
.
more, t e associanance, is solidified: One can~:f~on, c:Iti.cal to conservative domilets things go on as they a
e ~lcnmmal actor when one simply
re, regar ess of the consequences.
4.
An analogue: causation.
Just as unconscious shifts in view in th

tive results so do shifts bet
b g e defendant affect substan.
'
ween road and
.
twn. Here is a standard c
.
narrow views of causaausatwn problem. Th d {; d
.
. .
VICtim on the head and th
. .
.
e e. en ant hits the
.
.
e VICtim ultimately d'
H
..
qmres not JUSt the actus reus d
Ies.
omJcide rean mens rea but a h
. h bl
wort h y blow must cause th d h
,
arm, t e arnevictim does not die on the s ~t beat . Assu~e that this particular
ambulance.
p
ut on the tnp to the hospital in an
The defendant is not cui bl
I
.
and a culpable "proximate'fa e unfeshs he IS both a "but-for" cause
{; d
.
cause o t e death 122 Cl 1
en ant Is the but-for cause of death .
.. .
ear y, the debeen in the ambulance but {; th '~;nee the VI~tim would not have
proximate cause? Ignoring thor . e I o.w. But Is the def~ridant the
e Circu anty of traditional dtjimiions of
122. "With crimes so defined as to
.
of conduct, the defendant's conduct mu~e~~~;~ n~t m~rely conduct but also a specified result
be determined that the defendant'
d
e ega! or 'proximate' cause
[Ijt
. .
s con uct was the
. [;

must
any vanauon between the result inte d d
cause In act of the result [and] . . . that
achieved is not so extraordinary that it: e . . . or ~azarded . . . and the result actual!
the actual result." W. LAFAVE & A S
ould be unfatr to hold the defendant responsibl r, y
of d
1
carr, .rupra note I 35
246 S.
e or
octnna tssues and cases in causatio .J 35
' at
. ""also their discussion
, at 246-51.
n, tu.
April 1981]
267
Studies
641
proximate cause, 123 the interpretive pr,oblem is that everything looks

accidental when looked at too particularly. Moreover, there is no
defensible scheme for aggregating "similar" events. For instance, assume that there is a 50% chance, ex ante, that the victim will die if
hit. This 50% chance is, of cour~e, a sum of many different possibilities. For our purposes, a few possible categories will be sufficient:
There is a 49% chance of dying on the spot or after responsible ambulance and hospital care, a 0.8% chance of dying as a resulrof hospital negligence, a 0.1% chance of dying as a result of malicious care
in the hospital or ambulance, and a 0.1% chance of the ambulance
having a fatal crash.
Of course, from the broadest perspective none of these deaths is
accidental, in that hitting foreseeably leads to death. But is the
broadest category appropriate? What if the victim dies in an ambulance crash, and ambulances crash no more often than do other vehicles? Presumably, at least if we break off that mode of death as a
relevant category, the defendant will not be culpable. 124 But do we
subcategorize further? Assume that ambulances are more dangerous
than normal vehicles because they speed and run lights. What if the
defendant is killed in an ambulance crash that is not of the sort that
makes ambulances more qangerous than other vehicles-for example, what if the ambulance is rear-ended while peacefully stopped in
the hospital driveway, not sideswiped as it dashes through an intersection?
Legal systems devise a number of aggregating and disaggregating
presumptions. For instance, when someone dies after a blow to the
head, it is insignificant which vein burst or where the clot was. Each
of these fimns of death will be aggregated so that they are deemed
predictable and nonaccidental. On the other hand, the condition of
the victim, though it may dramatically affect the chances of deatp
and is thus causally related, is never treated as relevant in deciding
whether a particular death is accidental. A victim in bad shape will
be implicitly disaggregated, precipitated out from the class of victims
123. The Model Penal Code states that a defendant is deemed to cause a result that is
"not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability." MODEL PENAL CODE 2.03(2)(b) (Proposed Official Draft 1962) (brackets in original).
124. In the analogous area of torts, "coincidence" cases do not give rise to liability. Su,
e.g., Berry v. Borough of Sugar Notch, 191 Pa. 345, 43 A. 240 (1899) (no liability when
streetcar, traveling at excessive speed along route, gets hit by: falling tree; negligent conduct
must increase the probability of the harm that occurred, in order to cause it). Sua/so Shave! I,
An Analysis of Causation and the Scope of Liabili'ty in the Law of Torts, 9 J. LECAL STUl>IES 463
(1980).
268
642
STANFORD LAW REVIEW
Critical
[Vol. 33:591
in general, so that the death appears nonaccidental,l25
.
'd But
h conventional aggrega t'mg d evices
are mcomplete-I
hav
1 ea ow our legal culture would deal with the ambul
. ~ no
cases-and arbitrary. It is not sim I tha
. ance ac~I ent
cause standard is circular 126 Th
py
. t the typical proximate
I
. .
e more senous concern is th t

ess subjectively stated standards for "improbable" or "
'da evel~
are m
1 h
acc1 en ta
bread~~:;~o~~s~~; t~ea~~:~ce of ~o~d~ensible interpretations of the
to be ascertained.
egory o t e event whose probability is
III.
CONSCIOUS INTERPRETIVE CONSTRUCTS
Conscious interpretive constructs like the

.
ate to avoid fundamental political ~roblems u~~~scious ones! opertwo conscious constructs to the sub t
.
. . . Is part apphes the
s ant1ve cnmmal law.
A. Intmtzonalism and Determinism

~nglo-American courts and commentators
. .
nal JUStice system is based on the
..
assert that our cnmisupposition of "fi
'II"
tionalistic conduct . 121 Of course t h ough

reeb WI
or mtenallow det~rminist excusing conce;tions of~~: d:f~u; er ofbareas ~e
ered. This residual determinis
. n ant to e considi~g the generally asserted int:~~~:~~~h~ ~Implest claims jus.ti~y
discourse is somehow technicall . .
' that a determimst
plicable to legal contexts. The ~~:d:~ble o~ metho~ologi~all~ inapa more general determinism ar t r ld~etfi odolog~cal objeCtiOns to
rst a s1m I k

e WOIO
a b ~ut the necessiljl of any effect followin fi.
'
p e s eptlcism
a distrust of our capacity to account fog tr;:m any cause, ~nd second,
d
r e roots of particular decisions that explain the p .
recrse con uct th t th
.
gaged in Yet these b' .
a
e actor ultimately en.
'
o ~ectwns apply as
II
h
determinism that we d o to 1erate.
we to t e uses of
125. Was it predictable that "a person" wo ld d .
1 .
hemophiliac would die if tapped? Do we ud e u
~ ~ftapped? ~as it predictable that a
of human beiugs of whom hemophilia J ~ probability by referrmg to the broader group
b
dl
cs are Instances or na
h r
roa y, we are prone to say "H
hT
'
rrow t e lOCUs? If we interpret
caused it."
'
emop I Ia caused the death"; if the latter, "the defendant
126. The logic says a defendant must cause h
.
ant causes a harm when it is not so accid t I a arm to ~e JU~tly punished, and a defend12
en a as to make It UnJust to punish him
7. Su, ~.g.' Heller, supra note 2, at 237.
.
April 1981-]
269
Studies
643
1. ,Apparent determinism: duress, subjective entrapment, and
provocation .
Ordinarily, we judge criminal liability at the moment the crime
occurs. A defendant is guilty if he performs a harmful act in a
blameworthy fashion. The origin of a decision to act criminally is
128
ordinarily of no concern.
At times, though, we open the time frame to look at earlier events
in the defendant's experience and construct deterministic accounts of
the intentional wrongdoing. For instance, a defendant may perjure
himself after being threatened. 129 At the moment the defendant is
perjuring himself, he is intentionally telling a lie. But the decision to
lie under duress may seem normal, expectable, and therefore blameless.
Duress. Some decisions seem explicable, the result of background
pressures that rendered the defendant less deter;rable or less blameworthy. The duress defense represents a severe threat to ordinary
criminal law discourse and is strictly confined, in terms of both time
130
and the pressures that may influence the reasonable defendant.
For the most part, we accept only discrete incidents as forming the
basis of a duress plea, and we demand that these incidents occur close
in time to the arguably criminal incident. 131 Furthermore, the pressures must be 'attributable to a single human agent or group of agents
that focuses his or their efforts on inducing the defendant to commit
the crime. 132 This second restriction maintains the illusion of an intentiomilist discourse, but the relevanfwill is now that of the source of
the duress, not that of the defendant. Of course_, though, from the
vantage point of the defendant on trial, we have shifted to a determinist mode. What is odd is that the "substitution of wills" meta128. s~~. ~.g., G. WILUAMS, supra note I, 21.
129. Regina v. Hudson, (1971) 2 Q,B. 202 (C.A.).
130. For an expression of anxiety about this defenSe, see, ~.g., G. FLETCHER, supra note
I, 10.3.1, at 801 ("It goes without saying that a person's life experience may shape his character. Yet if we excuse on the ground of prolonged social deprivation, the theory of excuses
would begin to absorb the entire criminal law. . . . Now it may be the case that all human
conduct is compelled by circumstances; but if it is, we should have to abandon the whole
process of blame and punishment . . . .").
131. Duress is predicated only on imminent and specific threats, generally of death or
severe bodily injury. Su, <.g., D'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951), uri.
dmi~d, 343 U.S. 935 (1952); Nail v. Commonwealth, 208 Ky. 700 (1925); Regina v. Hudson,
[1971) 2 Q.B. 202 (C.A.); GA. CoDE ANN. 26-906 (1977).
132. Su, e.g., People v. Richards, 269 Cal. App. 2d 768, 75 Cal. Rptr. 597 (1st Dist.
1969) (no defense of duress available when parties threatening prisoner's life did not ask him
to escape).
Critical
270
644
STANFORD LAW REVIEW
[Vol. 33:591
p~or
implies that the defendant is a .

.
.
Without exercising normal rational f: ct~~~ mvoluntanly, or at least
crime. In fact, his conduct rna be .:~ ltes, when he c~mmits the
behavior we can imagine, give: the bac: untary and .s~nsible as any
fendant is not rendered will-less it is . ground conditions. The deexpressions of his will in the t .' II s;mply that the content of the
tive we are suddenly 'using i/dplca ydre evbant broader time perspec'
eeme to e determined. 133
Subjective entrapment. Courts use the sa

d
. . .
the origin of an intentional d . .
hme etermt.mstlc account of
ec1ston w en they ac t d r:
entrapped by government t'
b
.
qm a e1endant
commit the crime. 134 Whil:~~onb. ec~use he lS not predisposed to
be grounded in a desire to deter o ~~ctt.ve entrapment standard may
a subjective standard is b d unh esJra.ble government activity, 135
. .
ase on t e nouon that at 1
.
.
cases, lt lS unsurprising reaso bl
d
'
east m certam
someone solicited by a g~v
na e, an therefore blameless that
t; d
ernment agent would co
.
.
en ant's conduct is deemed determined b
mm.lt cnmes. Deant would not have committ d th
.
y the agent. The defendalong with the plan. Of co e
e cnme ~ad the agent never come
.
. . .
urse, we could gtve equall
termmtstic accounts of other pressures that ca
Y persuasive
deb
ow
we
do
not.
For
instance
.
~e
cnme,
ut
someh .
we Ignore a history of
pnvate party continually ~rging som

.
136
a pestenng
tion in treatment may reflect
~ cr~m~. While this distinctheories of entrapment as it d as ~u~ t e Impact of the objective
oes t e orce of a determinist discourse
133. For a parallel, but more political d'
.
"":oluntariness" of ordinary contractual relati~~u:lon of duress, in the context of assessing the
lihrty, 43 COLUM. L. REV 603 606 (1943) ( . 1ps,hsee Hale, Bargaining, Duress, arvl &nomi~
and reasona ble, g.ven
'
t .at many u n ortunate chou:es
.
the background
d' notmg
.
are willed
1
con mons wh1ch p
134. See United States v. Russell 411 US 423
cope Impose: on one another).
U.S. 369 (1958); Sorrells v. United Sta:es 287 U.S 43J1973); Sherman v. United States, 356
case, the defendant is exculpated if he w:U
. . d' (1932). In a "subjective" entrapment
ment agent procured or planned S b' _not pre lsposed to commit the crime the govern
u ~ecuve entrap
fi
d
actor a mns he has done culpable acts b
1 d ment unctiOns like excuse in that the
blameworthy, not because they justify the :;t;bea ~that the circumstances render him less
nary character.
ut ecause they do not demonstrate his ordi135. The objective view typified b St
focuses on curbing improper l;w en.
y ate v: Mullen, 216 N.W.2d 375 (Iowa 1974)
orcement techmques Th b' .
,
overnment
agent
has
taken
steps
which
ld
.
eo ~ecuve test asks whether the
g
't
.
wou
ensnare
pers
h
com
ons w o would not ordinarily
ml cnmes, not whether the particular d r.
e.g.' Sorrels v.ynited States, 287 U.S. 435, 45; e~~ant would have committed the crime. Su,
refuse to convict persons when govern
( . 32) (Roberts,J., concurring) (courts should
r.or I he purpose of obtaining a defendant).
ment agent 1s exc 1
1 .
esslve y zea ous m- creating criminality
s..
136.
e, e.g., Henderson v. United States 237
settled, of course it is that the doct .
f
'
F.2d 169, 175 (5th Cir. 1956) ("W II
h
'
nne o entrapme 1 d
e
on t e part of a private citizen who is not an ffi n foehs not extend to acts of inducement
o cer o 1 e law.").
April 1981}
271
Studies
645
in these cases, in any nominally subjectivist jurisdiction, we do have

to face the fact that we see the appearance of a purportedly anomalous determinism.
Provocation. Provocation, though not a complete excuse to assault

crimes, also uses determinism to miniJUize culpability. Instead of
looking just at the moment of, say, an intentional homicide, we look
back to the homicide's roots. 137 If we feel that the decision to kill is
grounded in some earlier incident 138 that makes homicides139unusually
likely, that excites the passion of some reasonable.man,
then we
partially excuse.
Any attempt to account rationally for the restrit:tzon of determinist
discourse to these excuses seems doomed. Fletcher's account, as
usual, is the most sophisticated. He makes two different. arguments
to distinguish the presently accepted deterministic excuses from a defense of "harsh background circumstances." First, he argues that an
excuse is appropriate when and only when the conduct the defendant
engages in is rooted in atypical circumstances that do not permit us
to infer a blameworthy character. 140 He further argues that a retribu~ionist punishes because he is certain that the actor's character is
bad, but the principle of legality precludes a generalized inquiry into
character and forces the retributionist to judge character solely on
the basis of a single incident. 141 Finally, he says that when looking at
any incident, we can determine whether it is attributable to "the actor's character" or to "the circumstances that overwhelmed his ca137. For a traditional list of past events that may tause people to be abnormally likely to
kill (e.j., combat, assault, illegal arrest, discovery of adultery), see W. LAFAVE & A. ScoTT,
supra note 1, 76, at 5 74-77.
138. Again, we demand that the incident not be temporally too separate from the
crime, for fear that provocation will expand into a general determinist category. &e, e.g.,
Sheppard v. State, 243 Ala. 498, 10 So. 2d 822 (1942) (adultery discovered several days before
murder not legally cognizable provocation).
139. Nearly all murderers are abnormally an.f'7; presumably we could, if we wished,
trace the roots of the anger. This possibility provides a particularly wide-ranging threat to
ordinary criminal law discourse where, as in MoDEL PENAL Coot: 2.01(3) (Tent. Draft No.
9, 1959), the defendant may be partially exculpated when he kills someone who is not himself
the sourte of the provocation. But if. Dow v. State, 77 Ark, 464, 92 S.W. 28 (1906) (killing
nonprovoking bystander while in a reasonable rage at a provoker held to be murder). Longterm provocation claims are generally noncognizable, even when the victim is the source of
the provocation. &e, e.g., Sheppard v. State, 243 Ala. 498, 10 So. 2d 822 (1942). But if.
People v. Berry, 18 Cal. 3d 509, 556 P.2d 777, 134 Cal. Rptr. 415 (1976) (recognizing that
two-week period when victim alternately taunted defendant and sexually excited him could
amount to provoking event).
140. G. FLETCHER, supra note 1, 10.3.1, at 800-01.
141. !d.
272

Critical
646
STANFORD LAW REVIEW
[Vol. 33:591
pacity for choice." Fletcher stresses the either/or nature of that

attribution question, noting that the broad determinist argument
that ba~kground conditions of deprivation are excusing circumstances mterweaves the two sorts of arguments. 142
His argument, however, is circular. If we hypothesize that people
have "true" characters outside the fortuitous circumstances in which
they live, we should at least search for a full determinist account.
The behavior of the former battered child tells us nothing of the defendant's "true character," just as the behavior of the coerced
thr~atened_ thief tells us nothing of his "real nature." And, if charac:
ter Is nothmg but a summary of actual behavior given actual life circumstances, then it is part of a defendant's "character" that he "is" a
killer if he has, given the pressures he has faced, killed.
. Ultimately, ~letcher relies on ordinary-language blaming conventiOns to rescue h1m. He argues that our culture assumes people are
generally accountable for what they do. 143 But these conventions are
~articularly suspect when the people administering our criminal justice systems, who know they will never (because they already have
not had to) ~ace the pressures of a truly bleak social background, but
who are as likely as anyone to encounter short-run incidental pressures that are legally recognized as excuses, blame those who have
faced long-term background pressures. 144 To note that there are conventi~ns for blaming says nothing about the universal acceptability of
applymg the general practice of blaming to particular cases. The
142. /d.
_143: ~e argues: "The arguments against excusing too many wrongdoers are both moral
a~d _msutut10nal. T~~ r_nor.al or philosophical argument is addressed to the problem of deter-
~mmsm and respo~s1bllny m the standard cases of wrongdoing. Ct is difficult to resolve this
1ssue except ~Y. ~oung that we all blame and criticize others, and in turn subject ourselves to
blam~ a~d cnuc1sm, _on the assumption of responsibility for our conduct. In order to defend
the cr1mmal law agamst the determinist critique, we need not introduce freighted terms like
'freedom of the wi_ll.' No: need we 'posit' freedom as though we were developing a geometric
system o~ the bas1s of ax.oms._ The point is simply that the criminal law should express the
way we hve. Our culture s bUJit on the assumption that, absent valid claims of excuse, we are
acco_u?table for what w~ do. If that cult.ural presupposition should someday prove to be
~mpmca~ly. false, there Will be far more rad1cal changes in our way of life than those expressed
m the cnmmallaw." /d. 10.3.1, at 801-02.
14~.
Take
th~
follow.ing loose analogy: A large social group is setting up a massive
he~l.th. msurance, nsk-~hng _plan. Should treating hemophilia be included? Since hemoP~ha a purely hered_nary aliment, everyone will know whether he faces high bills for the
IS
d1sease. Purely selfish msurance purchasers will exclude the disease from coverage If the
defense ?f duress "insurance" against being blamed or incarcerated, the
social
g~oup will excl~de long-term pressures" as a covered syndrome since they already know they
w1ll not be affi1cted.
i~.
domina~t
April 1981)
Studies
273
647
supposedly exacting legal method, which purportedly tells us w~en

to explain and excuse and when to condemn, ends up as nothmg
more than the proud assertion of complacency. It ~erts no more
than that "our culture" (whose culture?) holds certam people accountable because that's what we have always done.
.
Second Fletcher argues that the traditionally excused acts are m
orne signiflcant sense "involuntary," while acts that might be mo~e
~roadly determined remain "voluntary." 14!'1 Whi~e the argument_ IS
far less lucid than the usual arguments in Fletcher s ~ark, I t_ake h1m
to mean that those acts usually excused are determmed or mvoluntary at the particular level. Fletcher seems to agree that acts performed by the "generally pr.essured" defendant ma_y be morally
'nvoluntary but he thinks the particulars of the cnme are more
I
'
.
freely
chosen
than in the tradit~onal duress case. 146 Th"IS v1~w
~f
Fletcher's interpretive construct IS supported by a statement .m. h1s
earli~r "inference to character" attack on full-blown determ1msm:
"The moral circumstances of an ~cto~'s life may account for sam~ of
his dispositions, but explaining a life of c~im~ ca_nn~t excuse particular acts unless we wish to give up the ent1re mst1tut1on of bla~e and
punishment."t 47 But Fletch~'s ch~ice of a narrow act-~~1ented,
rather than categorical, focus m refutmg the general d~terr~umst plea
cannot be explained. As always, the level of aggregation IS flexb_le.
If a traditionally coercive source of duress orders you to steal h1m
some food, it hardly matters that he leaves you a choice as to which
store to rob or when to rob it. Similarly, if one is under unusual longterm pressures to commit crimes, ~t may not matter mu,~? that th~
precise nature of the crimes committed 1s unknown and mtended.
2. Apparent detmmnism: i'nsani?J and dirmnished capacz?J.

The insanity "defense" is best understood as the port_ion of_ the
trial that determines whether to incarcerate the defendant m a pnson
145. He states: "Another way to approach the rationale of excusing co~ditions is to
start with the premise that law should punish only in cases of voluntary wrongdo_mg. Ex~uses
arise in cases in which the actor's freedom of choice is constri~ed. _His con.duct s not str1ctly
involuntary as if he suffered a seizure or if someone pushed hs km~e-holdmg hand down on
the victim's throat. In these cases, there is rio act at all, no wrongdomg and therefore no need
for an excuse. The notion of involuntariness at play is what we should call moral or normative inv~luntariness. Were it not for the external. pressure, the actor would. no_t ha~e.. performed the deed. In Aristotle's words, he 'would not choose any such act m Itself.
G.
FLETCHER, supra note I, 10.3.2, at 802-03.
146. &1 itl.
147. /d.
274
Critical
648
STANFORD LAW REVIEW
[Vol. 33:591
or a mental institution 14B But fo

.
"theoretical"lso
. . .
r a vanety of both practicaJ149 and
reasons, It IS seen as a
d fi
diminished capacity constitutes a parti'alglenumel e ense. Certainly,
I
.
Y excu patory defense.l51
A ong With the defense of infanc th .
.
minism's most obvious do . . hy, . e _msamty defense is determam m t e cnmmal 1
w h
.
latmg on the cultural history ofth'
. I
aw. . ~t out specunote two things First th h
Is ~articu ar determimsm, I wish to
"hard science" i~
, I e egemo~Ic p~wer of medical models and
our cu ture made msamt
d'
concrete, more thing-like than th
1 ~ ~a Isease appear more
Second, and more interesting Io her eiaai?e forms of deviance. 152
justice system must distinguish sb are
tz s sense that the criminal
who might, in a nonlegal cont t etween two classes of defendants
, Th
ex seem equally "
system will dismiss as insane tho , d fi d
craz~.
e legal
fashion we deem "medicall
sl~ ~~n, an_ts who, while acting in a
practices. Other defendan[ exp Ic~ ~; rez~flrce our abstract social
may be disorientingly devia~t e!ua '! e~~hcable" in their actions,
cial practices and th-" d fi , d ay Im~hcitly attac/c our abstract so._,e e en ants will
t b d'
.
'
tively suppressed, corrected and put away~~3 e Ismissed, but acCo~pare the following hypotheticals Defe
.
legally msane person) says "I killed th . ' . ndant A (a classically
was a snake, about to atta~k me" Th' e VICti.m ~ecause I thought he
the abstract level; the defenda~t's i~s ~e~usiOn IS nondisor_ienti~g at
acceptable. (Once we perceive b.
p ICit rule structure Is socially
o ~ects as snakes, we too shoot them.)
148. See, e.g., itl. 10.4.4, at 835.
.
149.
A defendant "acquitted" b Y reason of msanity
h ld
. .
h
ut t e party may not be civilly committ d
h
.
IS e
mvo1untanly m a facility.
regardless of whether he has bee d . ed or eld m a treatment facility once he is "cured "
.
.
n etame as long as h
ld h
vtcted and mcarcerated in a prison S.

B
e wou
ave been had he been con150. See, e.g..' H PACKE'R ~,',. ee, e.g. , o1ton v. Harris, 395 F.2d 642 (D.C. Cir. 1968)
'"r-a note
at 132 ("Le
verdtct (of not guilty by reaso n o f msamty]

.
. '
t us .. .assume that a
through confinement in an institution
. . .. operates to depnve the person of liberty
(still] put up with th~ bother of the t'n.sa...ttn mdo:t respects very like a prison . . . . We must
11
.
m Y e1ense beca
t
1 d .
cnmma aw of tts chief paradigm of free 'II ")
use o exc u e It IS to deprive the
151
WI
. . . . u, e.g., People v. Conley 64 Cal 2d.310
(dtmtmshed Capacity, an inability t'
.h
'411 P.2d 911, 49 Cal. Rptr. 815 (1966)
'
.
d t .
d
o compre end one's dut t
.
y o_ ~overn ones actiOns under
u y tmpose by law, negates possibilit of findin
first or second degree murder).
y
g mahce requtslte to conviction for either
B
&e' ~g.
. . . .
. 152.
.
. . ' J. H ALL, supra note I at 449-54 466 7
chtatnc defenses because psychiat .
' .
- 2 (cnttctzmg the extension of psyd'

nsts are madequatel
'fi ) "
tsease and criminal responsibility has th .r.
Y sctenu c The problem of mental
merely a matter of finding out which h' erde ore, the appearance of utter simplicity. It is
1
.
arm- oers had a 5
.
re evant ume, and the experts in that kind fd'
enous menta1 dtsease at the legally
1
o tsease are psychi t
ever, t h at a very large number, perha s hal(
. .
a ns~s. . . . t happens, hownot doctors of medicine . . . . , /d.
_' of the pracucmg psychtatrists in this country are
449
153. A. Katz, Studies in Boundary Theory SUra
hr
note 105, at 44-46.
April 1981)
275
Studies
649
Defendant B (a disorienting deviant) says, "I killed the victim because he is an exploitative pig who deserves to die." While in the
culture's ordinary discourse, desert is rooted i'n the law-people deserve punishment if they violate the law, people deserve to own property the law says they are entitled to--disorienting deviants root the
law in their own concept of desert. For the society in general, law is
the universal, applied in particular cases to determine desert. The
disorienting deviant is disorienting precisely because his own sense of
deser.t is the universal; law is just a particular application.
A more general, medically based determinism does not enable us
to screen out and condemn disorienting deviants. Concerning the
insanity defense, it is imporant to realize that we only occasionally
decide to listen to the doctors' accounts of personality. If we were to
admit the possibility of a more general determinism, doctors might
well be glad to descril::fe the psychic roots of all harm-causing behavior. We could not make any good arguments, in terms of the explanatory capabilities of psychiatrists, to restrict the occasions on which
we would listen to their descriptions to those occasions on which a
defendant's atypical thought and moral structure is nondisorienting.
But rather than make difficult explicit political arguments "that we
must condemn the disorienting deviant, whether he ,is psychdlogically explicable or not, we fall back on the pseudo-methodological
claim that we are simply applying the usual rule that determinist
discourse is unavailable. 154
3.
Obscured determi'ni'sm: abandonment.
Defendants will not be exculpated for voluntary abandonment of

a criminal attempt if the purported cause of their abandonment is
either fear of apprehension or some other cause that permits the factfinder to infer that the defendant is merely postponihg the criminal
act. 155 For instance, in Le Ba"on v. State, 156 a defendant 'was found
154. The prototypical defendant excused for duress is likewise exculpated because his
deviant acts are nondisorienting. The acts represent the kind of response that some (dominant) "we" would make to the pressures of sorve "they." The general determinist's duress
plea is unacceptable because it disorientingly switches "we's" with "they's": "We" (who profess at least some sort of control over the social world) become a "they"--a source of horrorwhile "they"--the supposed source of horror--5imply have typical, unexceptionable reactions
to our unwarranted intrusions on their "real" characters.
155. See MODEL PENAL CoDE 5.01(4) (Proposed Official Draft 1962) ("Renunciation
is not complete if it is motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar objective or victim.').
156. 32 Wis. 2d 294, 145 N.W.2d 79 (1966).
Critical
276
650
STANFORD LAW REVIEW
[Vol. 33:591
guilty of attempted rape when he abandoned the crime only after the
victim informed him she was pregnant. The state's attempt statute
inculpated when a crime was not completed as a result of "the intervention of another person or some other extraneous factor." 157
The need to use a supposedly anomalous determinist discourse in
~his area is acute. Just as .we ordinarily do not blame people for crimmal acts that are determmed and understood, we do not give credit
for '"undoing" criminal acts when the "undoing" is determined and
understood. In u Ba"on, the unstated notion must be that "any rapis.t" _facing the situation .the particular defendant faced-a pregnant
VIctlm-~ould have desisted (or at least that desistance is atypically
probable m such a case). The abandonment provides no assurance
that ?ur .initial sense of the party~s culpability (revealed by the acts
const1tutmg an attempt) has been contradicted by subsequent desistance. The defendant in u Ba"on argued that failing to consummate the crime was internal, not due to an "extraneous factor" 158
the court's assumption ,that the failure was a feature of the exter~al
fact si~uati?n, an~logous to a physical impediment to completion of
the cnme, IS nothmg more than a determinist assertion. 159
?ne view of the question is whether the abandonment was purely
p~rtzcular-the defendant ~ay have abandoned only this specific inCident--or a more categoncal renunciation of the crime. We exculpate only if we believe that the defendant has renounced the
categorical activity, yet all we ever know for sure is that he has abandoned the i~cide~t .. A ~eterminist account of the abandonment supports a pa~1culanst1c v1ew of the renunciation by breaking ordinary
mfer~nce hnks betw.een instance and category. (Abandoning this
rape 1s not abandonmg rape, because this rape has special features
that make us think of it as especially "abandonable" and make it
atypical of the broader category of rapes.) But the original "decisio~" ~o use the gener~lly scorned determinist accounts is essentially
unJUStified or unconsciously asserted.
For instance, the "decision" to employ deterministic discourse

might conceivably arise from the high probability of certain effects
following certain causes. But I see no reason to assume that most
would-be rapists desist when their victims are pregnant. Alterna-
651
tively, the decision may be based on a supposition that the defendant

remains "dangerous" because the typical victim does not have the
traits of the spared victim. Thus, a defendant desisting after a woman
explains the special rage, vulnerability, and humiliation she will feel
after being raped would deserve no "credit" for a voluntary renunciation, since the typical victim probably does n_ot try to talk to her
attacker. It is silly to talk about being sure beyond a reasonable
doubt that one person is simply postponing or transferring a categorical criminal intention once he has stopped manifesting the. particularized criminal intention on any occasion, while also talking with
assurance about another person internally and voluntarily renouncing a criminal plan. All renunciatio~s. are accomplished i~ ~nique
fact settings that may not recur. Sh1ftmg between determm1st .and
intentionalist discourse is needed to make this sort of argument even
vaguely plausible.
4. Obscured determinism: negligent crimes.
While many commentators sympathize with predicating liability
on negligent behavior/ 60 many do not. 161 Opponents of negligence
culpability claim that: (a) negligent acts cannot be deterred because
they are, by definition, acts that the perpetrator has not fo~use_? o.n;
and (b) negligent acts are not blameworthy, from a retnbut1o~1st
viewpoint, because tpey are not willed. The remarks of Glanvtlle
Williams are typical:
[T]he deterrent theory . . . finds ~tself in some ?ifficulty when applied to negligence. . . . [T]he threat of pumshi?ent m~st. pass
[the negligent person] by, because he does not reahze that Jt Js addressed to him.
The retributive theory of punishment is open to many objections, which are of even greater force when applied to inadvertent
negligence than in crimes requiring mens rea. Some people are bom
ftcldess, clumsy, thoughtless, inattentive, irresponsible, with a bad memory.
162
and a slow "reaction time."
The first argument-that negligent crimes cannot be d~terred-is

sensible only if we insist on taking a narrow time frame. One may be
unaware of one's harmfulness at the moment one unleashes harmful
forces, and yet still be aware of whether the course of conduct under160.
157. WIS. STAT. ANN. 939.32(2) {West 1958).

158. 32 Wis. 2d at 298, 145 N.W.2d at 81.
159. The court analogized the failure to consummate the harm in u Ba"on to the failure of a defen~ant to consummate a killing ,because the pistol the defendant used was unloaded. 32 W1s. 2d at 300, 145 N.W.2d at 82 (citing State v. Danos 9 Wis 2d 183 100
N.W.2d 592 (1960)).
'
.
'
April 1981]
277
Studies
s~~. ~.g.,
H.L.A. HART, supra n01e I, at 136-57; Fletcher, Tlu Tluory of Cn"mi'nal
Negli'gmu: A Comparati've Analysis, 119 U. PA. L. REV. 401 (1971).

161. ~~.~.g. G. WILLIAMS, supra note I, 43; Hall, Negli'gmt
o~lzavi'or Should B~ Excluded
ftom Penal Li'abi'li'ty, 63 CoLUM. L. REV. 632 (1963).

.
162. G. WILLIAMS, supra note I, 43, at 122-23 (emphasis added) (paragraphs m re-
verse order of original).
STANFORD LAW REVIEW
652
(Vol. 33:591
taken is more careful or less. Even Glanville Williams notes that "it
~s possible f~r punishment to bring about greater foresight, by causmg the subject to stop and think before committing himself to a
course of conduct." 163 One is more pensive when one knows one will
be punished if one does not consider risks that others consider.
More interesting is Williams's seemingly unconscious use of a deterministic (and therefore excusing) discourse in describing the negligent person. In Williams's world, people are born careless or
inattentive. 164 Presumably, this same discourse can be used in
describing purposeful criminals: People are born vicious or are ren?ere~ malicious by environmental factors. Similarly, the intentional1St disCourse generally used for crimes of purpose, knowledge, and
recklessness could readily be applied to negligent crimes: We can
suppose people choose an inadvertent or careless character as much
as th~y cho_?S~ an overtly ho~tile one. What is fascinating is that writers hke W1lhams can so bhthely dismiss deterministic accounts in
~eneral, 165 ~hil.e adopting them wholeheartedly, without explanatiOn, when _It smts some particular program. Once more, the point is
not the ultimate result, but the nonrationality of method in a purportedly rationalistic discourse.
B. Rules versus Standards

Conscious interpretive construction exists in the choice between
rules ~nd standards. At the philosophical level, the liberal state's
commitment to a rule-like criminal law is pervasive and grandiose.
Jerome Hall's comments are typical: "The principle of legality is in
some ways. the ~o.st fundamental of all the principles . . . . The essence of th1~ prmc1ple of legality is limitation on penalization by the
State's offic1als, effected by the prescription and application of specific .rul~s." 166 ~e~, in practice, limiting a legal system to mechanical
apphcatwn of ng1dly defined rules is both practically unthinkable
~nd substantive~y objectionable. We must explore the strong anurule tendency m a supposedly rule-worshipping legal culture.
1.
279
278
Preparation versus attempt.
April 1981]
distinguish between nonpunishable "me.re pre~ara.tion" a~d cul~able

"attempts" to commit crimes. Th~ bas1c te?swn m defimng th1s ~c
tus reus of attempting seems relauvely straightforward. We pumsh
167
attempts (despite the general absence of harm)
for two re.ason~:
first, because the actor has manifested the sam.e blamev.:orthy d_Ispos~
tion' as any other criminal, the lack of harm IS a fortmty ou.ts1de h1s
l.t6B second because we wish to deter people from takmg steps
I
d
con tro ,
,
. 'fi
that ordinarily result in harm, and it may ~dd s1_gn_ ca1~! Y to eterrence to punish people even when they fa1l m the1r a1m.
Of course,
the failure to consummate the harm ma~es us do~bt whether the ache malicious resolve of the typ1cal effective offender. If the
tor had t
ll
defendant is apprehended when we are sun especla y . un~~rtam

about the resoluteness of the criminal plan, we call the acuon preparation."
'My claim is that the tests labeling or defining atte~pts can e~ily be
r gned along a continuum of rule-like to standard-hke. That IS, tests
~~y be framed in terms that are mechanically appli_cable and cat_egorica:l or in terms that are ad.hoc. All these tests w1ll seem unsatisfactory in precisely the way that no rule form or standard form of
doctrine can ever be satisfactory.
Under the most rule-like test, an actor has not attempted a crime
'l he has taken the last possible stepWithin his control to consumt
un
.
l
'h
mate the harm. 17o This test can be applied umform y, WI~ out regard to the defendant's personal qualities. Moreover, 1t leaves
maximum room for people to engage in not-~et-ha_rmful cond~ct
without state intrusion. Unfortunately, the test IS ob~wusly unde_rmclusive-a defendant would be acquitted of attemptmg murder m a
slow poisoning case until the last dose o_f a fat~l series of doses was
given; some significant crimes would be 1mposs1ble to attempt--e.g. ,
rape' and theft where there is always some other act to b~ take~
before the crim~ is complete. Moreover, a regime in which thts test 1s
!67. Some attempts cause an apprehension of harm when t~e.would-be victim is aware
that the attempt is being made, or they cause anxiety when the vcum learns the anempt was
..
.
made. See, ~.g., id. at 218.
168. See, ~.g., Schulhofer, Harm and Puni'shmmt: A Cntzqu~ o/ Emphaszs on ~~~ Ruu/ls "(
,.._ J
oL " ' I , .
122 u PA L REV 1497 1519-21 (1974); MoDEL PENAL CODE,
lAinaucl tn v1~ t.iTlfnlllll
Courts and commentators alike have offered a variety of tests to

163. /d. 43, at 123.
164. /d. 43, at 122.
165. ~e n~tes, "Abandonment of the concept oflegal responsibility . . . would omit the
elements ofJUS~Ice . . . which are an indispensible part of our arrangements." fd. 15, at 33.
166. J. HALL, supra note I, at 25, 28.
-653
I.AW ,
5.01, Comment (Tent. Draft No. 10, 1960).
. .
.
.
169. There may be people who would be willing to endure cnmmal pumshment f.th~y
had the satisfaction of causing the harm they desired. Such persons would not be effecuve Y
deterred unless attempts were criminalized. See H.L.A. HART, supra note I, ~t. 129. .
170. Rex v. Eagleton, 169 Eng. Rep. 766 (1855). The case test was defimuv~ly reJected
in Rex v. White, (1910) 2 K.B. 124 (in a case of slow poisoning, the last dose ofposon needed
to kill need not be administered to constitute the offense of attempted murder).
280
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April 1981]
281
Studies
655
employed will discourage the police from taking preventative a,ction

to stop crimes if they are afraid to "blow" convictions. Furthermore,
this test enables people to plan their harmful conduct in a roundabout fashion so as to eliminate a major purpose of attempt law-it
enables them to assure that they will either cause harm or go unpunished.171 Finally, a rule-like attempt definition puts pressure on the
broader legal regime to establish other rule-like preparatory crimes
(e.g. , curfew violations, loitering) to permit early police intervention.
Thus, to gain the procedural freedom inherent in the rule form-freedom from the arbitrariness of random state enforcement-the society
may end up restricting substantive freedom. If the police cannot stop
nighttime strollers who seem suspicious-because suspiciousness is
too vague a standard-and if citizens deeply fear nighttime breakins, one solution is to ban all nighttime strolling. This would be a
highly intrusive limit on substantive autonomy within a formally free
and rule-like system. 172
The second test is relatively rule-like: An action constitutes an
attempt only if it is unequivocally directed towards the consummation of a crime. 173 Since this test focuses on how the act appears,
without regard to the actor, the test is less likely to be prejudicially
enforced against "criminal types." Of course, whether one can recognize when an act is unequivocally directed at harm without regard to
one's belief about what the actor is likely to do next, a belief based on
suppositions about the actor, not the act, is highly problematic. But
if the test is taken seriously in its most rule-like sense, it is plausible
that no conduct will be deemed unequivocally oriented towards the
consummation of harm. 174 For instance, attempted rape would be
impossible, since no acts prior to intercourse are unequivocally inconsistent with a design tp molest rather than rape. But if the test is read
as proscribing "acts unequivocally directed at harm under the circumstances for that person" it dissolves into the Model Penal Code
test,I 75 with all the problems of a standard-like test.

The third test is moderately rule-like and moderately standard'k
an attempt
l1 e, with the faults or virtues of both. An act constitutes
.
h
hen it reveals a physical or dangerous prox1m1ty to t e consumw ated harml76 or if it would have resulted in the harm but for an
mnforeseen interruption. 177 If we read" prox1m1ty
" as re latmg
t o h ow
ulose we "believe that actor was to causing harm, the test is as stan~ard-like as the Model Penal Code t_est. If v:,e read it in p~ysical
terms, it is as rule-like as the "last poss1ble step test. In applymg the
"unforeseen interruption" test the question is whether, we are all?wed
to consider our belief about the particular defendant s propen~lty to
desist. If we are, the test is like the Model Penal Code's. If "':e sim.pl Y
consider the natural physical.circumstances of acts that are lrretnevably done when judging whether harm would have occ~rred but_ for
unus1,1al circumstances, the test reverts once more to the last possible
step" test.
Under the Model Penal Code test, an act constitutes an attempt
178
if it is strongly corroborative of the actor's criminal intention.
This
test allows no roundabout schemes that are immune from attempt
law. The police need.not wait to intervene until d~nger ri~es in order
to preserve a potential conviction.I 79 People fortuitously mterrupted
before they have taken all the necessary steps to consummate the
harm are not freed. On the other hand, when the fact-finder suspects
the defendant is a "criminal sort" or is simply prejudiced against the
defendant, acts consistent with both criminal and noncriminal plans
180
are likely to be deemeg corroborative of a criminal plan.
N? one
has clear notice about what is and is not permitted when the ultimate
legal standard ~aries so much with the fact-finder's opinion.
Ultimately, I sense that no one is comfortable with any of these
tests. An "argument" for one simply suppresses the terror of the
181
rules/standards dilemma that faces any actor within our culture:
171. Fletcher recognizes the advantages and disadvantages of the tests. G. FLETCHER,
supra note I, 3.3.1, 3.3.2.
172. q. Katz & Teitelbaum, PINS Jurisdiction, Tlu Vagueness Doctniu, and The Rule o.f
Law, 53 IND. L.J. I (1978) (noting that a command from the judge to the teen in need of
supervision that is rule-like and consistent with procedural norms of freedom, like "obey all
parental commands," restricts substantive autonomy more than a command that is a good
deal vaguer and therefore less consistent with procedural norms of freedom, like "obey all
reasonable commands").
175. See notes 178-80 infta and accompanying text.

176. See, e.g., Hyde v. United States, 225 U.S. 347, 387 (1912).
. .
177. Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901) (opmon by Holme~,
C.J.).
178. MODEL PENAL Coo 5.0 I (Proposed Official Draft 1962).
179. G. WILLIAMS, supra note I, 203, at 632, particularly em(1hasizcs this point.
180. E.g., activity described as "casing the joint" may be preparation for a larceny or a
manifestation of curiosity about the way a neighborhood looks.
181. Reading the works in this field, e.g., G. FU."TCHJ::R, supra note I, 3.3.1, 3.3.2;J.
HALL, supra note 1, at 576-86; G. WILLIAMS, supra note I, 201-20~; Wechsler, Jon~s &
Korn, The Treatment o.f Inchoate Cnines in the Model Penal Codt o.f the Ammcan Law lns/1/Uie. Allempt, Solit:~ialion, and Conspiracy, 6! CoLUM. L. REV. 571,585-611 (1961), one senses that the
173. The King v. Barker, (1924) N.Z.L.R. 865 (Ct. App.). Fletcher is fond of this test.
G. FLETCHER, supra note I, 3.3.2, at 142-45.
174. See G. WILLIAMS, supra note I, 202, at 630 (noting that a man approaching a
haystack with a lighted match may simply intend to light his pipe).
282
Critical
656
Studies
STANFORD LAW REVIEW
Critical
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The position ultimately settled on is simply a temporary assertion.

2. Merger of conspzracy with the substantive crime.
The rules/standards dilemma also arises in the issue of whether

the crime of conspiracy is separate from the substantive crime that
was the aim of the conspiracy. The primary practical import of this
question is whether the sentences for a conspiracy and for the crime
that was the object of the conspiracy can be tagged on to each other.
The question is also significant when conspiracy penalties are set
higher than those for the object crime.
One rule-like answer is that a conspiracy penalty should always
be "tagged" to the penalty imposed for committing the crime that
was the object of the conspiracy; 182 another rule-like answer is never to
183
tag.
A standard-like answer, typified by the Model Penal Code, is
that one should not tag "[w)hen a conspiracy is declared criminal
because its object is a crime . . . [because) it is entirely meaningless
to say that the preliminary combination is more dangerous than the
forbidden consummation; the measure of its danger is the risk of such
a culmination," but one should tag at other times because "the combination may and often does have criminal objectives that transcend
any particular offenses that have been committed in pursuance of its
goals."IB4
All of these solutions are profoundly unwarranted. The first rulelike solution, Z:e. , always tag, is, as the Model Penal Code draftsmen
point out, senselessly overinclusive. The supposed purpose of nonmerger doctrine 185 is presumably that many agreements establish
dangerous groups, ongoing engines of social destruction. 186 But
problem is truly exasperating for each commentator, but that each sees the need to assert a
solution. But see H. PACKER, supra note I, at 100-02 (viewing all the tests as nonsensical,
though viewing the effort to avoid punishing preparation as a significant antipreventive detention effort).
April 1981)
283
Studies
657
many agreements do no such thing: Agreements, for insta?ce, of a

woman and her lover to, kill an unwanted husband are typically focused on the single act and create no general "criminal organization." 187
,.
At the other extreme, the standard-like Model Penal Code solution is antithetical to ordinary notions of legality: The fact-finder
decides, presumably on the basis of some gut feeli_ng about the defendants, whether they were planning to do bad ~hu~gs they had not
188
Arbitrariness and preJudice abound; the
Yet actually agreed to.
r
" cnmma
..
1 types. "
jury will clearly searc h 10r
The second rule-like solution, Z:e. , never tag, avoids both the overinclu~iveness of the first rule and the bigotry and uncertainty of the
standard but leaves all other aspects of conspiracy doctrine in muddled sha;e. 189 The reason conspirators are derivati_v~ly liable for a~ts
they could not be said to aid and abet under tradltlonal accomplice
liability analysis 190 is that ''joining" and thus "creating" a conspiracy
is itself a dangerous and culpable act. The conspiracy, the reified
"entity," aids and abets all its members; ~ll t~ose_ who create "it" are
responsible for what "it" does. But the 1mp~1cat10n of a full-fle~ged
merger doctrine, of a decision never to tag, IS that there really IS no
"it," no, thing-like conspiracy to worry ab_out .. Moreover, o~e of the
two usual rationales for punishing consp1rac1es at a more mchoate
stage of criminality than when one would pun_ish in?ividual ~er~e
trators for attempting is that the agreement 1tself 1s an anusoc1al
nal oBject will be succtssfully attained and decreases the prob~b~lity that _th~ individuals
involved will depart from their path of criminality. Group assoc1at10n for c:1mmal pu_rp~ses
. . . mal<es possible the attainment of ends more complex t?an those wh1c? ?ne cru~mal
could accomplish . . . . Combination in crime mal<es more hkely the comm1ss1on of cnmes
unrelated to the original purpose for which the group was formed." An equa~ly unsuppo~ted
assertion of these purported characteristics of "conspiracies" i~ contai~e_d m the oft-c1ted
Note, Tl;e Conspiracy /Ji'lemma: Prosecution of Croup Cnine or Proteclzon of lndwidual /Jifmdants, 62
HARV. L. REV. 276, 283-84 (1948).
182. &e Callanan v. United States, 364 U.S. 587, 593 (1961) ("The distinctiveness between a substantive offense and a conspiracy to commit is a postulate of our law.").
183. See, e.g., WIS. STAT. ANN. 939.72 {West 1958).
184. MODEL PENAL CODE 5.03, Comment, at 99 (Tent. Draft No. 10, 1960). See also
id. 1.07(1)(b) (Proposed Official Draft 1962).
185. Nonmerger doctrine states that a conspiracy does not merge into the substantive
crime that is the object of the conspiracy, but is punished separately. By way of contrast,
attempted murder, which is inevitably factually present when someone murders, "merges"
into a murder and is not punished on top of the murder, when the defendant succeeds in
killing.
188. See Rex v. Morris, [1951) I K.B. 394 (defendants punished for acts of smuggling
,not p;oven at trial).
189. Those who disapprove of the general doctrine of conspiracy-like Johnson, supra
note 187--may well find this result perfectly acceptable.
186. A typical statement of these dangers is in Callanan v. United States, 364 U.S. 587,
593-94 (1961): "Collective criminal agreement . . . presents a greater potential threat to the
public than individual ddicts. Concerted action both increases the likelihood that the crimi-
190. See Pinkerton v. United States, 328 U.S. 640, 645-48 (1946) (defe?dant resp~~sible
for acts by co-conspirator in furtherance of conspiracy, though defendant d1d not paruc1pate
in or know of acts).
187. The notion that "conspiracies" have significant things in common with one another simply because they may all be called conspiracies is, even in familiarly_ reified leg~!
thought, an instance of truly magical thinking. See Johnson, Tlu _Unnecessary Cnme ofConspzrary, pi CALit". L. REV. 1137 (1973) (deriding the "reified" conspiracy category).
284
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act.
That belief implies, of course, that conspiring is itself a dangerous act that should be punished. Thus, the second rule form
works only if we ignore the legal regime of which it would be a part.
In a sense, this second rule is underinclusive, if criminal enterprises
are more dangerous than the plans actually agreed upon at the time
the conspirators are apprehended.
No one could seriously back either the first rule-like position or
the Model Penal Code position without suppressing acceptable interpretations of the desired procedural form of legal pronouncements.
Many commentators (like myself) would happily abolish the conspiracy category because they doubt that conspiracy in and of itself is
ever harmful. These commentators might support the second rule,
but they would do it knowing that the rule-form is underinclusive
under typical factual suppositions regarding "criminal enterprises."
3.
Deftnses and di'scretzon.
A rule-like_ criminal_law punishes persons equally whenever they

perform certam acts With a blameworthy mental state. Departing
from such a system inevitably allows prejudice and arbitrariness and
diminishes the clarity of notice, while adhering to such a system leads
to random injustices. Moreover, the rule-like system is inevitably infirm i': its reliance on categories that nominally include a range of
behaviOr that seems more or less culpable either from the perspective
of rule-appliers enforcing their own values or as one imagines how
the ~ul_e-makers would have dealt with the particular case had they
had It. m ~ront of them. Particularizing conditions enable the system
to mamtam the appearance of a rule-like system while functioning in
a more standard-like way.
The less important particularizing conditions are those that function doctniza!{y, at trial. These are situations in which an actor delibe:ately perfor_med criminal acts but, under the particular
Circumstances~ It was desirable for him to do so. For example, an
ambulance dnver speeds and runs lights to deliver heart attack victims ~o the hospital. The possible strict rules--either "all speeders
~nd hght-runners are punishable" or "ambulances are categorically
Immune from traffic laws"-will be respectively over- and underinc~usiv~ as_to who is punished. Yet a standard negating the criminal
vwlat10n If the benefits of nominal violations substantially outweigh
1?1. The other usual rationale is that conspirators egg each other on and are less likely
to destst when they are at a "preparatory stage" than are individual perpetrators.
the harms 192 is troublingly uncertain and politically tainted in application. 193 Likewise, there are situations in which the defendant,
though clearly violating the terms of a statute and not acting laudably, has acted under pressures (e.g., duress, ent:apment~ that _we ?elieve negate blameworthiness. t 94 Standard-hke particulanzatiOn
may match legal results to purposes. If punishment should hit only
the blameworthy, to punish an unblameworthy person because people who deliberately per~orm acts he ~as p~rfo_rmed are genera!{y
blameworthy is inappropnate. But partlculanzauon leads to vagueness. What pressures does a reasonably firm person give in to? Will
juries find defendants they dislike unreasonably weak in succumbing?
More important as a practical matter, discretion exercised by
prosecutors and judges can negate all ill effe~ts of ~riminal vio~~ti?ns
besides conscience pangs. Naturally, using discretiOn draws cnuctsm
from those making the customary claims for rules, 195 but two critical
facts remain. First, legal categories do not exhaust our apprehension
of conduct: Not everything called burglary or assault is like everything else called burglary or assault. There are significant distinctions between fighting in bars, slugging other lads in school, and
slugging old women in the park, and even between different fights in
bars. Second, the background circumstances in which two equally
bad acts are performed really may affect our perception of the defendant. A defendant who deliberately kills a wife who has assaulted
him on previous occasions and kept her lover in the house 196 may
seem less blameworthy or in need of reform or incapacitation than a
192. S.-e-,
~.g.,
MODEL PENAL CoDE 3.02 {Proposed Official Draft 1962).
't93. This is a major worry of United States v. Kroncke, 459 F.2d 697 {8th Cir. 1972)
{disallowing defendant's contention that jury should have been instructed that his act of interfering with Selective Service might be justified to end the war in Vietnam). Su also. State
v. Wootton, Crim. No. 2685 (Cochise County, Arizona, September 13, 1919) (allowmg as
defense to kidnapping charges the justification that kidnappers who rounded up and deported more than a thousand I.W.W. strikers believed the I.W.W. strikers a threat to life and
property); Comment, Th~ Law of N~cessi'.J' as App!zi:d in the Bisbee D~portation Cas~, 3 ARIZ. L.
REv. 264 (1961).
194. See notes 128-47 supra and accompanying text.
195. &~,~.g., K. DAVIS, DISCRETIONARY jUSTICE 189-95 {1969); M. FRANKEL, CRIMINAl. SENTENC~ (1973); Dershowitz, Background Papn-, in TWENTIETH CENTURY FUND TASK
FORCE ON CRIMINAL SENTENCING, FAIR AND CERTAIN PUNISHMENT 67-124 (1976);
LaFave, Th~ Pros~cutor's Discretion in th~ Umi~d Statu, 18 AM. J. CoMP. L. 532, 535-39 (1970).
196. This is a reference to a presentence report reprinted in F. MILLER, R. DAWSON, G.
D1x & R. PARNAS, SENTENCING AND THE CORRECTIONAL PROCESS 92-101 (1976).
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deliberate killer who kills for profit. 197

. While _the at.ta~k on discretion will always be readily at hand, so
IS the parttculanst s attack on adhering to rules. The assertion of one
position or the other is, once more, the suppression of dissonant
thoughts, not the working through of a rational program.
4.
Vagueness doctnne.
One plausible account of the invalidation of vague statutes is that

the Constitution (or, in Britain, a more general principle of criminal
law~ 198 mandates a rule-like criminal code. Certainly, courts invalidatmg statu_t~ as unconstitutionally vague make the usual pleas for
~learly admm.Istrable rules. In Papachnstou v. Cz?J ofJacksonvz"/le, t99 for
mstance, Justice Douglas wrote that an ordinance is void for vagueness if it:
"fails to give a person of ordinary intelligence fair notice that his
con~emplated cond~ct is forbidden" ... and ... [if] it encourages
arbttrary and erratic arrests and convictions.
. . . It furnishes a convenient tool for "harsh and discriminatory enforcement by local prosecuting officials, against particular .
groups deemed to merit their displeasure." 200
The problem with. vie~ing the vagueness doctrine as "settling" the

rule/standard tension 1s tpat the void-for-vagueness strictures are
rarely used, though so many statutes are undeniably fuzzy. Thus we
must account for the judiciary's occasional i~validation of ambiguous laws. A coherent account focuses on the interaction of a series of
"standards" and "policies" disparaging or supporting vagueness that
are themselves exceedingly vague, rather than on some hypothetical
"quantum" of ~agueness. ~hus, ironically, the "rule system" is upheld only occastonally, and m a very un-rule-like fashion.
A detailed accoun~ of th_e vagueness doctrine is unnecessary given
It is enough to say that the
Professor Amsterdam~ semmal ~ork.
outcome of any case IS unpredictable without at least considering
three factors: facts and values, core conduct, and nearby conduct.
201
1?1. Of course, in some sense, someone so morally unmoored as to find killing for profit
conceovable can scarcely be deemed blameworthy.
198. Su G. WILLIAMS, supra note I, 185, at 578.
199. 405 u.s. 156 (1972).
200. ld. at 162, 170 (quoting, respectively, United States v. Harriss 347 US 612 617
(1953) and Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)).
'
. .
'
20 I. Note, Th~ Void-for- Vagum~ss .Doctn'n~ z'n lh~ Su~>rmz~ Court 109 U PA L R
67
(1960).
'/"'
'
.
. . EV.
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The first factor asks whether the court believes the statute could
have been written more precisely. Statutes may refer to facts, to values-as-facts, or to values. For example, a statute refers to values if it
says, "Don't be obscene"; it refers to values-as-facts if it says, "Don't
say things that the average citizen of Pensacola would consider obscene"; and it refers to facts if it says, "Don't say any of the following
'dirty words.'" Generally, within this culture, values are considered
individual and widely dispersed. 202 Thus, any stat\).~e making reference to values will znevitably seem vague: There can be no precise
understanding of the content of any "value" since that content is not
communally shared. All else being equal, courts are generally more
tolerant of vagueness where value references are inevitable than
203
where the legislature could define facts more precisely.
The second factor asks whether the court believes that the core
conduct described by the statute--conduct clearly fitting withzn its
murky boundaries-is substantively innocent. In Papachrzstou, for instance, the Jacksonville ordinance outlawed "neglecting all business
and habitually spending . . .. time . . , where alcoholic beverages are
sold or served. " 204 This is not a particularly vague description of the
illicit activity unless one assumes, as did Justice Douglas, that it cannot possibly be intended to apply to "members of golf clubs and city
clubs." 205 Vagueness doctrine-a procedure-oriented constitutional
jurisprudence-is in this manner used to strike down substantively
objectionable statutes. 206
Thus, there is a second layer of irony in dealing with vagueness
202. For a discussion of the liberal culture's premise of the subjectivity of values, see R.
UNGER, KNOWLEDGE AND POUTICS 51-55, 76-81, 88-104 (1975).
203. Compar~, ~.g., Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr.
481 (1970) (homicide statute not extended to apply to killing of fetus; statute could readily be
drawn to encompass fetuses) with Johnson v. Phoenix City Court, 24 Ariz. App. 63, 535 P.2d
\067 (1975) (upholding laws against lewd and immoral behavior, presumably because varieties of lewdness would be difficult to specify). Of course, a number of "vague" statutes must
be limited to ensure that conduct protected by the first amendment is not proscribed. &~,
~.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971) (ordinance prohibiting three or more
persons from assembling on sidewalk and annoying passers-by); In r~ Bushman, I Cal. 3d 767,
463 P.2d 727, 83 Cal. Rptr. 375 (1970) (statute prohibiting disturbance of peace; defendant
claimed to be engaging in "symbolic speech'').
204. 405 U.S. at 156 n.l.
205. /d. at 164.
206. &~ Tribe, Th~ Puzzlz'ng P~m'slm&~ of.1+o&ess-Bas~d Constziutional Theorz~s, 89 YALE L.J.
1063 (1980). Tribe discusses the use of ostensibly procedural norms to reach substantive results. In part, of course, one of the traditional "procedural" concerns in vagueness doctrinethat potential defendants know the criminal law-is implicated whenever "generally innocent" conduct is proscribed. Since-few citizens read the statutes to learn the law, a statute
proscribing conduct few would imagine illegal is likely to be unknown. Still, the substantive
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doctrine. It is designed to invalidate generalized statutes like "Don't

do bad things" because what is "bad" is-unknown and unknowable
in a culture premised on the subjectivity of value. Yet a major criterion for invalidating a statute is that the conduct it proscribes is substantively approved, not "bad." The judge must thus know what is
least knowable.
'
The third factor makes this worry even more apparent. Vagueness doctrine is pre._domiizant{p used when the conduct that is ambiguous{p covered by the statute, conduct that the court fears will be
deterred because citizens are unsure whether or not it falls within the
ambit of the statute, is either affirmatively constitutionally protected207 or at least desirable. 208 When this "nearby" conduct is unprot~cted or affirmatively undesirable in the judge's eyes, courts are
209
less hkely to overturn.
Naturally, the court's interpretation of the
breadth of conduct that may be deterred is quite flexible. For instance, does a facially vague statute outlawing vexatious phone-calling210 chill protected "speech" or less protected "telephoning to
strangers"? From the rules/standards vantage point, the critical observation is that the "rule-like" form of law is not preserved in rulelike fashion: Substantive standards are used to define the occasions
on which rules are required.
IV.
THE EASY CASE
Parts II and III delineated the conscious and unconscious use of

interpretative construction in the traditional "hard" cases of substantive criminal law. It would be possible to claim that interpretive con~truc.tion is at work only in the tricky but rare gray area cases which
1mphcate the sort of elevated doctrine that occupies academic commentators and appellate courts. The criminal justice system
predominantly processes much szinpler facts: The harm is consummated, the precise act is "intended," the act and intent concur and
'
aspects of the decision seem powerful; it is unlikely that public announcements would cure
the defects Douglas was getting at in Papadmstou.
207. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); NAACP v.
Butt.on, 37! ~.S. 415 (1963); ~inters v. New York, 333 U.S. 507 (1948) (each discussing a
posstble chtlhng effect on exerctse of the first amendment right to freedom of speech).
. 208. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972) (extolling
vtrtues of strolling and loafing, activities arguably covered by vagrancy statute).
209. See, e.g., Rose v. Locke, 423 U.S. 48 (1975) (upholding a statute proscribing "crimes
against nature," even as applied to cunnilingus).
210. See, e.g., CAL PENAL Coot: 653m (West Supp. 1981): "Every person who with
intmt to annf!J' telephones another and addresses to or about such other person any oiJscme
language . . . [is punishable)." (emphasis added).
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there are no legally cognizable mistakes. Paradigmatic "e.asy c~~"

are ones in which a defendant wishes to kill a non~rovo~mg v1ct~m
and; without the slightest thought that he is defendmg himself, k1lls
the victim, or a thief takes property he knows belongs to an~ther.
This part shows that even to inculpate these de~e~da~ts w1th ~ny
sense of consistency, one must perform all the cntlcal mterp~et1ve
steps illustrated in parts II and III. My purpose is to show that mterpretive constructs are at work in euny case.
A. Conscious Interpretation
Both the basic intentionalist assertion and the purported devotion
to the rule form apply to the "easy case.'' The ~ignificance of r~
jecting a determinist discourse is mad~ most obv1ous by the pamc
that retributionists feel when confrontmg a more full-blown determinism. They worry about the criminal law being "swallowed _up."
It is quite plausible that we could still incarcerate in order to mcapacitate those persons whose unacceptable conduct was perfe~tl~ understood. However, losing the illusion that we are treatmg cnm1~als
justly, rather than simply conveniently, would alter both our b_ehefs
about the cruelty of our punishment practices and our ~ore or?u~ary
beliefs about merit. If we came to conceive of the typtcal cnmmal
act as just one more horror in a lifelong parade of never-~n~ing horrors, we might still decide to conquer an~ subdue the cnmmal, but
we would not self-righteously condemn h1m.
. .
The concern over rule-bound precision in drafting a cnmmal
code is most readily seen in the "easy case" in the context of debates
over punishment policy. 211 Devoti~n to rule-for~ is harde_r to se?,
though more politically significant, m understandmg a key Ideological basis for excluding nondisruptive harms (e.g., u~n~cessary deat~s
caused by routine commercial dealings) f~o~ the cnmmal code. It 1s
difficult to imagine rule-like forms proscnbmg unuasonab{p dangerous
211. For example, there have been many attacks on the broad discretion involved in
"- l!.g. , N. MORRIS, THE FUTURE ot IMPRISONMENT 35-36 (1974);

Bron.xe,
.
. .
paroIe pracucc.
LIUtl!.f
n ' fior naymg
.,, voa,
"--' c 1v . LIB Rt:v ., Summer 1974 at 116, 120; Loewenstem,
Brzngzng
stem
.,
I. .
the Rule of Law to Parole, 8 CLEARINGHOUSE Rt:v. 769, 775 (1975). Contra, Brettel, Contro :rIll
Criminal Law EnforummJ, 27 U. CHI. L. Rt:V. 427 (1960).
. .
The trend toward more rule-like forms in sentencing and parol_e proviSion~ rcftccts. the
hostility toward discretion. Su, e.g., McGee, California's New lJetmmnate Smtnu:mg A~t F_t:D.
PROBATION, Mar. 1978, at 3, 8-9; Taylor, In Search of Equity: Thi! Oregon Parole M_atr:x, FED.
PROBATION, Mar. 1979, at 52, 56. See gmnally Citizens' Inquiry on Parole & Cr~mmal J~s
tice Inc Report on New York Parole: A Sumrnary, 11 CRIM. L. BULL 273 (1975) (urgmg nondscre;iona-:r release provisions); O'Leary, PQTOie Theory and Outeome.r Reexamined, II CRIM. L.
BULL. 304 (1975) (rebuttal).
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conduct, particularly conduct not taken on single discrete occasions

by single actors to whom the harm can easily be attributed. These
may be seen as "easy" cases of noncriminality solely because of an
unshakably strong procedural norm against vagueness.
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a nearly primeval fear of the collapse of the easy c~se: If long-ter~

interactions are appropriate subjects of judicial scrutmy, then there 1s
indeed no certainty in blaming.
2. .Dz{joined and unified accounts.

B.
Unconscious Interpretation
More interesting, though, is the way the more obscured, un-selfconscious interpretive constructs serve to buttress conventional blaming practices. This section applies the four unconscious constructs to
the easy cases.
1.
Broad and na"ow time ftames.
Choosing a time frame is critical for a number of reasons. Most

critically, the interpreter's ability to convince himself of the legitimacy, or better, the necessity of a narrow focus eliminates the more
obvious political tensions inherent in the choice of an intentionalist
account. Narrow time-framing simply excludes all the potentially
exp!anatory background data. 212 For instance, a criminologist's famihar category for homicide-that the crime is fundamentally victim-precipitated213--disappears in ordinary criminal law discourse
except in those rare provocation cases where the victim enrages th~
perpetrator jus_t ~efo:e the killing, rather than over some longer time
penod. The d1stmcton between those who are partially exculpated
because they were enraged once (provoked), and those who are inculpated though they were tortured for years before reacting makes no
. 214 an d on1y superficial sense in terms
sense as a matter o f retn"b ut10n
of deterrence. 215 Ultimately, I suspect, the distinction is grounded in
212. ~o~ instan~'. it excludes the sort of pseudo-scientific analysis of behavior in Delgado, Asmptzon of Cnmznal Staus of Mind: Toward a Ik/mse Theory fir the Coercive!J Persuaded
("Brainwashed") De.fendant, 63 MINN. L. REV. I (1978).
213. See, e.g., M. WOLFGANG, PATI"ERNS IN CRIMINAL HOMICIDE 245-65 (1958)
Gobert, Victim Precipziation, 77 CoLUM. L. REV. 511, 530-34 (1977).
'
214. In ordin~ry discourse, a party who kills after he has been repeatedly provoked
would almost certamly be deemed less culpable than one who boils over and kills the first
time he is so provoked. Somehow, in legal discourse, the fact that the long-term provoked
defendant has ma~age~ to squelch his .violent reactions in the past makes him more culpable
when he finally gves m. The legal d1scourse makes sense only if we assume that a person
should leave rather than slowly build up an uncontrollable rage--an assumption that depends on the exaggerated assertions that the person is aware of his rage and that there are no
other reasons that compel him to stay in spite of that rage.
2~5 .. Deterre~ce theory, I take it, assumes that the short-run provoked party is blind to
the cnmmal law Signals; the longer-run provoked party ought to have time to consider the
jailer and l~ve if he fears he is. being worked into a frenzy. Again, this strikes me as a phenomenologically unsound readmg of many cases of long-run provocation: People may get
Disjoined time-framing eases blaming practices where an exculpatory, broad time-framed determinism pr_esses_on the would-b~ condemnor. The quasi-methodological notion 1s. that. the ult~mate
criminal act, even if comprehensively grounded m pn<:>r exper~ence,
must be separated from its backdrop. While we sometimes umfy an
overt criminal decision with its backdrop,216 our more usual technique is to say, in essence, that the crimi~al moment stands separate,
as a matter of technique, from even obvwusly relevant background.
But while narrow or disjoined time-framing is connec~ed ~ith the
artificial and problematic restriction of"excused" behavwr, t~s.more
politically central role may be in its suppressi~n of the recogmuon of
something akin to the "justification" ofbehavwr. Take our easy-case
thief. It is true that he alters the current holdings of property, but
the legitimacy of these holdings is politieally contingent and problematic. It does not matter, for our purposes, whether these present
property holdings can be satisfactorily justified i~
eyes of some
relevant group or other. The jus~ification of t~e dtst.nbuuon of ?oods
that preceded the "theft" is dectdedly not an 1ssue m _any ~art~cular
criminal trial. The incidental focus that supports this hm1t~t10n of
issues-a focus that blurs the "crime" by freezin? or ~akmg ~or
granted the background conditions in which ~he ':cnme" 1s_ commt~
ted-serves important ideological purposes. Ftrst, 1t n~rm~hzes, samtizes, and decriminalizes the property holdings of domn~atmg ?rou~s,
which are unlikely to be traceable to single, easily identified d_zsrup~t~e
incidents. The dominant rarely appear "criminal" when the '_mphctt
theory of criminality is disruption, when the only sort. of_ cnme we
comfortably discuss is temporally limited. Second, the_ m~td~ntal focu; decontextualizes, delegitimatizes, and thereby cnmmahzes th_e
activities of the dispossessed. Instead of viewing, say, theft and episodic violence as part of a dynamic struggle for control over re" strategy" to
.
sources as one group's more or less sel f-conscious
'
l
"
.
1Y h e ld"
counter another long-term strategy of contro over pnvate
t?e
upset and then find themselves, for a moment that need l":"t. no longer ~han that which the
traditionally provoked party faces, in an unforeseeable qbhv1ous-to-pums~ment rage.
216. For instance, we can ground the decision to kill in the perception of the need to
defend oneself and judge the defendant's blameworthiness as to the whole scene.
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means of production and concomitant definitions of job roles and

productivity, 217 and control over the state and its resources 218 a narrow time-framed focus views each act of theft as occurring ~utside of
history.
Note the implicit disjunctive, nonunified interpretation of time:
Criminal trials implicitly assume that property systems arefollowed by
theft rather than that real property systems are continually being created by ~ social st:uggle t~at includes everything from alternately
encouragmg and discouragmg the flow of illegal aliens 219 to "stealing." The political beliefs flowing from the unified perspective are
naturally by no means unambiguous. On the other hand, if one be~mes fully smugly functionalist and views everything as part of some
smgle, umfied grand scheme, punishing labeled thieves is just another aspect of the ultimate "system" of property. On the other
hand, the unified perspective may be counter-complacent as well: If
"taking" is just another technique for getting distributive shares
straight, "a~titaking" (punishment for theft) seems like a simple act
of force~ a victory for one group in a dynamic struggle rather than a
restoratiOn of some prepolitical equilibrium.
Just as the ordinarily asserted narrow time frame inculpates the
"easy case" defendant by denying him both determinist excuses and
contextual justifications, so an asserted broad and unified time frame
pred~d~ labeling as criminal those who sell unsafe products or those
who msist on the performance of unsafe work. Rather than viewing
the introduction of an unsafe product onto the market as a reckless
act which later causes harm, exculpating interpretations focus on the
act as part of a longer-term process of market interaction. In this
long-term process, the victim's (buyer's) participation is deemed crucial; the focus is precisely opposite that of the typical criminal law
analysis in which the victim's participation (precipitation) is irrelevant. The marketing. of ?angerous products is interpreted simply as
a part- of a genera/(y JUSti.fied system of producing and exchanging
g?ods. .The sale of a particular dangerous product is not viewed as a
disruptive departure from a more narrowly normatively justified sys217. Su, e.g. , Stone, The Origins ofJob Structurt: in tht: Stu/ /ndus/1)', REV. RADICAL POL.
~ON., Su~mer 1974, at 113 (arguing that the extensive division oflabor in the steel industry
~ ~ot techmcally mandated, but serves to immunize steel bosses from effective in-plant opposltlon).
218. St:t:, t:.g., P. BARAN & P. SWEEZY, MONOPOLY CAPITAL (t966).
219. SuS. CASTLES & G. KOSACK, IMMIGRANT WORKERS AN~ CLASS STRUCTURE IN
WESTERN EUROPE (1973) (discussing impact of "guest workers" in d"ampening labor's hopes
for larger share of national income).
April 1981]
667
m in which saft goods are produced and marketed. Instead, it is

te n as one part of a properly equilibrated system of distribution
see
1
where goods, not harms, are deliver~d .. Th_e otherwise cnmma act
ains legitimacy because it need not JUStify ztse(f; one need show only
fhat production is worthwhile, not that this production serves any of
the purposes that generally make production worthwhile. Contr.ast
that account with the typical criminal law account .of t~e t?Ief:
Theft is deemed to represent a departure from a normatively JUStified
general system of property rights rather than as a ~art of the establishment of a normatively justified system. Eac~ mstance of. th~ft
must be justified on its own; it is not enough to claim that the distnbutive scheme that would exist in a wodd without thieves would be
normatively less desirable on the whole than the system that has
emerged in a world with thieves.
3.
Broad and na"ow views
of intent.
Interpretive flexibility in determining the ac~or's intent is. the

ability to oscillate between vi~ws that th~ actor mtended precisely
what he did and views that he mtended some broader category of act
of which his conduct is an instance. This flexibility is critical in
dra~ing the vital, but ultimately un?rounded, lin~ between leg~lly
irrelevant motive and legally relevant purpose. Agam, take our ~h1ef.
The standard, reassuring criminal law view of the act of. grabbmg a
bundle of goods with the expressed intent or purpose of feedmg the. pr~
verbial starving family is to ~teal, whi~e onl~ the. 1rrelevant moti~e IS
to feed.220 But the supposed actual mtentwn IS a sham: ~hile a
defendant may intend acts which constitute theft, he_ need not mte~d
theft. Yet, when the defendant claims the legi~imated but still
broader category for his actions, in this case, fted~ng, the usual response is to narrow the permissible breadth of category. One:s ?recise acts become on(y an instance of the midrange category (cnmmal
takings) rather than of the broader one that might include attempts
221
to better oneself, to survive, etc.
Certainly, there are reasons of expediency' for a~opting. the
midrange categorization: If we want to prevent theft or mcapacitate
people who take other people's goods, we can reassure .ourse_lves that
people who take intend to do what they do, and that IS takmg. But
220. Obviously, justification doctrine, su notes 192-93 supra and accompanying text,
limits the purported irrelevance of motive to some extent.
.
221. Su, e.g., United States v. Berrigan, 482 F.2d 171, 188 n.35 (3d Cr. 1973), for a
typical statement of this midrange categorization.
294

Critical
668
STANFORD LAW REVIEW
[Vol. 33:591
the notion that this is an adequate account of their mental staterather than a deliberately circumscribed, partially blinded account
of their actual "state of mind"-is nothing but comforting iltusion.
To jump from "people who intend to steal are blameworthy" to "this
defendant is blameworthy because he deliberately took actions which
constitute stealing" without recognizing the subtle cat~gory.shift is to
ease the judgment process far too much. The statement that "people
who intend to steal are blameworthy" translates too closely into the
uncontroversial assertion that "people who intend to cause harm are
blameworthy." When one says, "People who intend to steal are
blameworthy," one implies that: First, the person takes the dominant norms on property as given or acceptable 222 and characterizes
his activity predominantly in terms of the norm; 223 second, he flouts
the norm he has accepted, simply for harm's sake. 224 There may be
no distinction between the core blameworthy character who gains
pleasure from harming others and the person who gains pleasure
from the act of stealing or from the stolen goods, not from the harm
to others. But unless one believes these characters are indistinguishable, the ability to categorize intentions serves a mediating function
in blaming. It translates the second account into the reified category
of intending to steal, with all the negative implications about deliberate harming implicit in that category.
There is a further iro11y in all this. The core easy case of blame in
categorization terms may also be a core case of exculpation, in terms
of the intentionalism/determinism line. No one seems truly blameworthy unless he has harmed for harm's sake, yet anyone who does
harm for harm's sake seems clearly pathological, probably insane-a
standard case of a determined and excused actor.
4.
Broad and na"ow oi'ews of the difendant.
The interpretive decision characterizing defendants either in

terms of capacities generally available to people or in terms of their
own capacities is germane to the stability of the "easy case" because
of its connection with the intentionalism/determinism rule. If one
looks back at our first discussioD; of provocation, 225 the relationship of
subcategorization to "easy case" blame is readily apparent. Serious
222. For example, he does no/ simply say, "I intended to get this good which you think is
yours" or "I intend to do what.)'!1u call stealing."
223. That is, he does not simply say, "I intend to put this good in my pocket."
224. Thus, he does not simply say, "I know that a by-product of my activity i~ to steal."
225. .s;, notes 137-47 rupra and accompanying text.
295
Studies
April 1981]
669
crimes inevit~bl~ ~equire me~nin;~~~ c~p:c.: ~~ ~::~:~ =t~e~r:

requisite to habthty. CapacJtybT . g 'hich the defendant, as a
226 or narterms of general human capa 1 Itles w
human, is improperly s~lbl~l~sticaflly parcC:Sltuy~~d ;~e~~s::st be some
I
t' g the poss1 1 1ty o cap
row y' nega m

.
f the defendant to some person
can be inculpatedd_- _Thde kill e_r
wh o kills for money-arguably t h e easles
t case o fpreme
1tate
11.
fi ;rnadd
w
.
'bl
plex were 1t not or an o
cious
someone who kills for
category tnc ~tands the sanctity of life, such that we would say _he
ed his duty to govern his actions in accordrance] wtth
comp .
[
b law ms or to "maturely ,and meanmgfully rethe duty tmpose .Y f hi contemplated act"?229 Presumably, we
categorizing the hired killer as just anfleet upond
get aroun
. 1 t
able like any buyer or seller of goo,ds, to
de:ermining whether they are in his interest.
imh!flo/z~~ ~~:i~;~::tm~o~J:;~s=y~ne
mur~e~-~~:tt c~::;Ftor:~a~ t~o:y th~t
~oneyr~~=d
t~ee~~:~~l~ms ~y
~~~~~tc~~~;~~~:ffe~ ~;;er
V.
CoNCLUSION
.
wn task of deconstructing rhetoric in three
I can mterpret my o
.
'bl fashions First I can view
disti~ct, though not wh~~l~ mc~::gp~t~ea~ist's plea for the' "politicizathe ptece as a rather tra ttlona.
.
ments as having the
tion" oflegal discourse. One mtghtdvtcewommmye~~~ors purport to solve
t re The courts an
6 11
o owm? stlrucdu t nal dilemma but their "solutions" use an unsupthe part1cu ar oc n
'
. . ,
k th ase ap"'
. "
" haractenzauon to rna e e c
portable mterpretatton or be
d . "
d" legal analysis they
ear manageable. Had they een omg goo
'k
p ld ms
. t ead "balance" the substantive policy concerns at
e to
wou
reach a well-reasoned result.
.
. F'
f 11 this
I have very limited sympathy. fihor thls ac~oun~ u~~s:n~ab~e, fact:
account fails to come to gnps wtt a centra an
.
k
Perfectly competent and intelligent commentators contmue to mas
~ta
226. E.g. "Humans have the capacity to con f<orm to ..1aw. Defendant is a human.
h
h
acity to conform to the law.
.
Therefore, defendant as t ,e.cap
. h'
If. Th person did not resist criminahty.
227. E.g.' "Defendant is only truly_hke tmse .
a 1 I l'ke the defendant can resist
Therefore, we have no real reason to ~eheve that someone tru y '
p d
criminality."
918 49 Cal. Rptr. 815, 822
228. People v. Conley, 64 Cal. 2d 31 0 ' 322 ' 411 .2 911 '
'
(1966) (defining malice).
75 40 Cal. Rptr. 271, 287
P d
229. People v. Wolff, 61 Cal. 2d 795, 821 ' 394 . 2 959' 9 '
(1964) (defining premeditation).
It,
'I'll
'
296
670
STANFORD LAW REVIEW
297

[Vol. 33:591
so-called policy with a powerful residual conceptualism. The commentators I have cited are hardly Langdellians, the courts hardly
premodern. I am dealing almost exclusively with the masters of realist ~hinking. Second, and quite related, I sense that the policy-balancmg act that the traditional realist advocates never takes very full
hold, both because it renders all legal outcomes highly ad hoc and
because it makes legal discourse seem less distinct from nonlegal argument. Third, by failing to deconstruct the mechanisms needed to
maintain the persistence of conceptualist solutions, traditional realists are unable to see that the culture's blindness to its constructs is
critical. ~h?ught. takes on a natural, apolitical, noncontingent quality unless It Is subject to ordered deconstruction.
A second plaus~ble accou?'t of my .work is that I am attempting to
account for the existence of mterpreuve construction and that identifying the forms that characterization takes is just' one important
step towards understanding the process of interpretation at a broader
level: At ~arious ~oints I have accounted for the appearance of a
particular Interpretive construct as manifesting a simple class conflict
between those protecting the position that the legal system routinely
allows them from sudden, incidental disruption, and those disfavored
by the routine dis~ortion of benefits that the legal system generates.
Nat~rally, those disfavored by the ordinary legal distributions of eco~omic power are most prone to use means generally considered crimmal.
Interpretive construction could play very distinct roles in this
class con~i~t. It is possible that each construction might correspond
to the political program of a social class. I would call this view "construction det~r~inism": a belief that the interpretive technique an
analyst uses IS Itself a product of the social class he politically supports. Alternatively, e~ch legal result could correspond to the politIcal p~ogram of a social group, and interpretive construction may
serve ~Imply to cover up the result-oriented, overtly political nature of
res~lvmg disputes. I would call this view "result determinism": a
behef that the "bottom line" of any case results from class conflict
~nd the interpretive technique is just a ruse to hide a primitive asser~
t10n of power ~o pron:ote one's selfish interests behind a mask oflegal
?ed~ctiOns. Fmally, It may be that maintaining the appearance (or
Illusi.on) of le?al argument is a si.gnificant political program of any
dommant social class, so that makmg formal arguments which do not
ref~r to the unexplai~able interpretations that actually ground the
arguments may sometimes be more vital than maintaining either the
April 1981]
671
construction or particular results. I would call this "legal form determinism": a belief that the preservation of the faith in an orderly,
nonarbitrary distribution of political and economic benefits is. more
central to dominant classes than either the result of any particular
case or the preservation of the dominance of any one construction.
Throughout the essay, I have proffered all these sorts of explanations. I argued, for instance, in Part IV, that the most basic task of a
dominant group is to identify criminality with disruption, with incidents that break the ordinary flow of distribution of burdens and
benefits. My claim was that certain characterizations or constructions are most compatible with that end. In Part II, I frequently
gave "result-oriented" explanations, made claims that an advocate of
a certain position constructs the legal material simpl~ to reac? a ~e
sired result, and that the result is based on some real mterest m wmniQ.g a certain class of cases, either because they are significant. to
maintaining economic or political control or because they help solidify a certain ideological story that is helpful to maintaining domination. Finally, even in those cases when it seemed as if no one could
possibly care about construction form or results in a particular setting, there is always the fallback claim that a legal system ought not
to have gaps; it ought to look as if every case can be resolved by some
similar "scientific" method.
A third account of my enterprise is that the interpretive constructs I note are not politically meaningful at all, but simply inexplicably unpatterned mediators of experience, the inevitably
nonrational filters we need to be able to perceive or talk at all. If
that were the case, my role would be largely aesthetic: I speak on
behalf of those who no longer like to listen to people making arguments that mask a hidden structure of "nonarguments" with insistent, false rigor. In the preface to their property casebook, Professors
Casner and Leach wrote that, "In order to move the student along
the road of becoming a lawyer, he must be subjected to close analytical testing that rejects generalities or approximations .. We think t~is
must come at the beginning of his law study to get him to recogmze
and abhor superficiality."230 I don't know whether to laugh or c~.
When the unwarranted conceptualist garbage is cleared away, dominant legal thought is nothing but some more or less plausible common-wisdom banalities, superficialities, and generalities, little more
on close analysis than a tiresome, repetitive assertion of complacency
230. A.
CASNER
& W. LEACH,
CASES AND TEXT ON PROPERTY
vii (2d ed. 1969).
298
Critical

672
STANFORD LAW REVIEW
[Vol. 33:591
that "we do pretty well, all considered, when you think of .all the
tough concerns we've got to balance." Legal thought does have its
rigorous moments, but these are largely grounded in weak and shifting sands. There is some substance, but we tend to run for cover
when it appears.
In the criminal law, two substantive concerns recur. Intentional
action and rule-like form are purportedly necessary to construct our
ordinary jurispn~dence. But no one truly believes in absolute intentionalism or in rules, though the departures from the polar positions
are vague and weakly defended. We must avoid the issues in order to
talk like lawyers, partly because we have so little to say about them
that is not deeply contradictory and ambivalent. What is worse for
the lawyer rhetoritician is that when we assert a bottom line, we are
rarely very convincing. We rarely do more than restate some utterly
nonlegal functionalis_t preference, some pompous version of Pollyanna's principles, or some equally norrlegal anger or contempt fora
system in which the comfortable beneficiaries of a rule structure cash
in on their strengths and self-righteously condemn those marginalized by the most central social and 'Collective decisions~the decisions
about how rights, duties, and privileges are created and enforced.
Rather than face our inability to speak, we hide the uses of standards
and determinist discourses, or proclaim, loudly if not clearly, that
when we are oboious{y using them, we are in an "exceptional" circumstance.
Most often, we avoid the issues altogether by constructing the legal material in terms of apparently well-established conceptualist
dogma, looking to concepts that, at some broad level, are doubtless
policy-''justified" (somewhere or other). As best I can tell, we do
these interpretive constructions utterly un-self-consciously. I have
never seen. or heard anyone declare that they are framing time
broadly or narrowly, unifying or disjoining an incident, broadly or
narrowly categorizing a defendant's actual or required intent or a
defendant's being or circumstances, let alone explain why they are
doing it. It is illuminating and disquieting to see that we are nonrationally constructing the legal world over and over again; it is a privilege to discern some structure to this madness, a privilege one gets
when a system feels unjust and unnatural. The outsider sees patterns
that the insider, committed to keeping the enterprise afloat, never
sees; structuring the practices of others is a funny and fun form of
dismissal.
One real conclusion, one possible bottom line, is that I've con-
April 198l]
299
Studies
673
tructed a very elaborate, schematized, and conceptual piece of winkHere's what they say, this. is how far they have gotten.
You know what? There's not much to It.
~ng dismissal:
[8]
Employer Abuse, Worker R~sistance,
and the Tort of Intentional Infliction
of Emotional Distress
Regina Austin*
The conventional wisdom is that, in the workplace, abuse can be a
legitimate instrument of worker control and an appropriate form of discipline.1 By "aouse" I mean treatm~nt that is intentionally emotionally
painful, offensive, or insulting. Rebukes and reprimands are the very
sort of "behavior that one would 'expect from a superior who is dissatisfied with his subordinate's performance." 2 Young black men may indeed be offended by the close surveillance and suspicious scrutiny they
receive in the course of perfoi"Jlling low-paying, unskilled jobs, 3 but
that is "their problem." Furthermore, the white-collar manager who
suffers despair as a result o( an unexplained denial' of the "perks" of
exalted status is supposed to get the message and seek employment
elsewhere. 4
It is generally assumed that employers and 'employees alike agree
that some amount of such abuse is a perfectly natural, necessary, and
defensible prerogative of superior rank. It assures obedience to com;:
mand. Bosses do occasionally overstep the bounds of what is considered reasonable supervision, but, apart from contractually based
understandings 5 and statutory entitlements to protection from harassment,6 there are few objective standards of "civility" by which to judge
Associate Professor of Law, University of Pennsylvania.' B.A., 1970, University of
Rochester; J.D., 1973, University of Pennsylvania. I want 'to thank a host of colleagues for
their helpful comments, guidan~e. aQd assistance, particularly Mary Adams, Malcolm Clendenin, Margaret de Lisser, Christine Hancock, Maria Pabon, Lenny Vinokur, and most especially Gerry Frug, who kept me on course and Derrick Bell, whose encouragement and
support were constant and essential.
I. See e.g., C. BRODSKY, THE HARASSED WoRKER 6, I49-50 (1976).
2. Magruder v. Selling Areas Marketing, Inc., 439 F. Supp. 1155, 1166 (N.D. lll. 1977).
3. See generally AnQ,erson, Some Observations of Black Youth Employment, in YoUTH EMPLOY
MENT AND PuBLIC POLICY 64 (B. Anderson & I. Sawhill eds. 1980) [hereinafter Anderson,
Youth Employment]; Anderson, The Social Context of Youth Employment Pror;rams, in YoUTH EMPLOY
MENT AND TRAtNtNC PROGRAMS: THE YEDPA YEARS 348 (1985) [hereinafter Anderson, Employment Pror;rams ].
4. See,
Wells v. Thomas, 569 F. Supp. 426 (E. D. Pa. 1983); Snyder v. Sunshine Dairy,
87 Or. App. 215, 742 P.2d 57 (1987).
5. Some workers arc protected by bureaucratic safeguards that are codified in union
contracts and employee handbooks. See text accompanying notes 219-236 infra.
6. See notes 46-51 infra and accompanying text.
e.i.
Critical
302
303
Studies
STANFORD LAW REVIEW
November 1988]
[Vol. 41: I
a superior's treatment of a subordin

W
.
pected to respond to s cho .
ate.. orkers for their part are exnot insubordination a~lresi!~gically~amful supervision with passivity,
and resilience If the superva.nce.. . eylmust and do develop stamina
move on to a~other job.
ISlon IS mto erable, they should quit a.nd
In sum, there is little reason for w k
the treatment they receive at
k ~ ers _to ~ake undue umbrage at
they suffer at the hands of emw~r .
e pam, ms~lts, and indignities
with acquiescence and endu p oyeThrs a~d .supervisors should be met
u'Lranee.
at s hfe
n IW believeS this?
My experiences as a "subordinate" d
the "subordinates" who work where I :n7 as an observer oflife amon%
tudes toward, and actions a ainst
o _suggest that employees' attJs':;e:VIsors are frequently at odds
with any concept of deferenc~ t
is reflected in the appellate c o/ut. ~nty. The ~onventional wisdom
0
tiona! infliction of emotional ~~ opm~ons applymg the tort of intenagainst their emplovers and sul;tre~s m s~its. brought by employees
duced in the everyday actions ande~~~~rs. t IS not, however, reproread cases applying the so-called tort
of workers. As _I began to
ployees, a passage from Toni M .
?
outrage to the claims of em. d M .
omson s novel Tar Bab s fi
mm . omson captures the f: T
'Y o ten came to
of black female workers espec~~~ ~~ tenor o~ the_ banter and behavior
boss:
,
y t at occurnng m the absence of the
u:es
[I]f ever there was a black woman's town Ne y

.
ping whips behind the tellers' . d
k." k'w ork was Jt. ... Snapfices, barking orders Jn th wm ows, JC mg ass at Con Edison ofe record comp
h
.
schools. . . . They jacked u me .
. ames, ospJtals, pubhc
luncheons, energized partiet red~~~gs m b?ardr~oms, turned out
~oved lids, cracked covers a~d tumeded fash~on, tipped scales, remto such a diamondhead ofh T
h an enure telephone company
ing to their operators Th osu ~7, t e comp~ny paid you for not talknone ... g
.
e mam esto was Simple: "Talk shit. Take
Sassy rhetoric and a sense of I h II

.
erate the spirit. They are the sorts~f e ~ a enge ~he status quo and libcu ~ural devices that many workers
employ, if not to con uer the
?PpressiOns of the workplace, then at
least to create mome~ts of
resistance and autonomy from employer
7. As a teenager growing up in black W h'
plantation"),
I got J'obs through summer youthas e mgton,
D.C. (what I call "the vast ''cod . 1
ffi
1
er.t
o ~es and laboratories. Now that I am a law r fimp oyment programs. I mainly worked in
ordmate ~han subordinate, but I do not ima
essor, I suppose that I am more of a superengaged m her or his share of "dean-trashing" I ~at there ts an academic alive who has not
ave spent most of my professional life as a
token, one of two or three or four blacks g.d
have felt especially comfortable with and an /or w;men occupying high-level positions. I
per.sonnel, security guards, and housekee i~uppo;te by the secretaries, office help, libr;ry
thetr co~mon s~nse and critical assessme~ts ~:t~ . I shar_e de~p c~ltural ties with them, and
surable mstrucuon and encouragement.
t etr workmg situatiOns have been of immea8. T. MORRISON, TAR BABY (1981)
9. /d. at 222.
rn:
EMPLOYER ABUSE
control. Despite all their feisty vitality, informal discourses, practices,

and understandings neither fully negate the workers' acquiescence to
abusive authority nor fuel sustained warfare against a hierarchical system that differentiates among employees with regard to the oppressiveness of supervisory control. The mechanisms of workplace and group
culture are partial, incomplete, and disorganized. They are no match
for the seeming inevitability of the dictate that abusive authority be
obeyed.
Indeed, the cultural modes and coping mechanisms of minority and
female workers are u~ed to justify discipline and discrimination. Every
day I see young black women and men working behind the counter or
busing tables at fast food restaurants, delivering packages about town,
or otherwise engaging in employment requiring few skills. Their positions are essentially dead-end jobs: pay is poor and supervision is tight;
there is no opportunity for advancement; turnover is high and workers
move from job to job to job without acquiring additional training or an
improvement in working conditions. 10 As hard as they try, the work
experiences of these young people must be demoralizing for them and
others similarly situated. Because of the narrow corridor in which I
travel I see less often the vast number of minority young folks who are
unemployed or have dropped out of the labor market entirely. News
accounts suggest that not only do these prospective minority employees have difficulty satisfying skill requirements, but their demeanor and
commitment to the "work ethic" may also be found wanting. 11 The
panacea seems to be socializing the workers to appreciate auth9rity.
Given the nature of the jobs, and the ubiquity of conflict in the employment relationship, socializing the authority figures to be more respectful and understanding of the ways of young workers would also
facilitate the full participation of minority women and men in the labor
force. 12 Of course, transforming bosses will be no easy matter.
The focus of concern throughout this article will be the working
conditions and experiences of black and Latino employees of both
sexes, and female workers, black, brown and white, all of whom occupy
the lower tiers of the labor force. 13 To be sure, the sources of the rna10. See B. GARSON, THE ELECfRONIC SwEATSHOP 17-39 (1988); Blount, "If You Col Time lo
Lean, You Col Time w Clean.," SoUTHERN ExPOSURE, Winter 1981, at 73-76; Marriot, More jobs,
hut Not Ca.urs.jor Youth, N.Y. Times, March 19, 1988, at 29.
I I. Su Marriott, supra note 10; Daley, For DrofxJuls, Findinl{]ohs Is Tough Task, N.Y. Times,
August I, 1988, at B4, col.l; W. WILSON, THE TRULY DISADVANTAGED 60-61 (1987).
12. See Anderson, Employment Programs, supra note 3, at 355; Teltsch, Helping Least-Employable Findjobs, N.Y. Times, Aug. 21, 1988, at 20, col. I (nat'l ed.).
13. There is no short, concise way to refer to the overlapping categories of workers I will
be discussing. The expressions that are typically used seem to exclude minority women. B.
Hooxs, AIN'T I A WoMAN 7-9 (1981). It should be understood that in this article the term
"minority workers" includes both males and females, while the term "female" includes women who are white and women who are not. My use of"and" to link these words, rather than
"and/or" or an expression such as "minority women and men and white women," is intended
to be fully inclusive.
!
'
11 1
304
STANFORD LAW REVIEW
Critical
[Vol. 41:1
~er!al circumstances of these minority men, minority women, and maJOnty wo~:n are no.t the s~me. There are dangers in ignoring the
particulanties of the Ideological and economic conditions and cultural
responses that separate each group from the others as well as from the
group of white male low status workers. Yet many members of these
gro~ps historically subject to multiple oppressions share a common expe~ence of abusive supervision. For them, it is not isolated and sporadiC rudeness, but a pervasive phenomenon that causes and
perpetuates economic and social harm as well as emotional injury. In
the places where these workers labor, racism and sexism obscure and
are obscured by the perniciousness of class oppression. Mistreatment
that ~ould never be tolerated if it were undertaken openly in the name
of white supremacy or male patriarchy is readily justified by the privileges of status, class, or color of collar. 14 Moreover, minority and female low status workers appear to have little economic clout with which
to combat such supervisory abuse. They do, however, criticize their
work situations and resist them to a limited extent. This article explores how th~ law mig~t be use~ul. in maximizing the affirmative politically progress1~~ potent1~l of their mformal, local, and largely defensive
cultural opposition to mistreatment on the job.
The analysis that follows considers supervisory abuse from three
perspectives. It first describes the approach of courts and commentators in evaluating intentional infliction of emotional distress claims
brought by employees. Although the generality of the tort doctrine betokens the possi.bili~y ?fan expansive remedy, the holding~ generally
support .no~s JUSt~fymg abusive supervision. A second, antithetical
perspective IS supplied by the work and group culture of minority and
female low status workers. Rejecting the view that dominates the tort
ana~ysis, these work~rs criticize a_buse on the job and oppose it through
a Wide range of devices and tactiCs. Through these same mechanisms
howe~er, .the.y ultimately ~cco~modate harsh supervisory oversight:
The ImplicatiOns of the d1spanty between the workers' critical conscious~ess and their acquiescent behavior will be explored in depth.
The third perspective fits authoritative workplace abuse into structural
c.ontext by linking. it to systems of supervisory control and the stratificat~on or seg~entatiOn of t~e la~or force. Whereas the cultural perspective emphasize~ th~ way m which workers create opportunities for the
exerc.Ise of choiCe m the face of hostile supervision, the structural perspective reveals the coercion that limits the real possibility of achieving
freedom through informal means. Because workplace abuse has both a
structural and cultural basis, however, reform might be possible if
small-scale cultural resistance escalated into broad political activity ac14. A~though not specifically invoked elsewhere, "color of collar" includes pink-collar
w.orkers: Pmk-collar w~rkers are those engaged in occupations that are associated with femimne trans and pr~dommantly held by women, such as hairdressers, waitresses, and private
household domestics. See L. HowE, PINK COLLAR WORKERS 11-12 (1977).
305
Studies
EMPLOYER ABUSE
November 1988]
companied by material structural dislocations that shift the balance of

economic factors in workers' favor.
Drawing on the three perspectives of authorita~ive abus~, the fi~al
section of the article considers the role tort law. might play m t~~nmg
the workers' critique into the normative foundatiOn of an oppositiOnal
movement led by those who are oppressed no~ only ~y the~r race ~n?,
sex but also by their class. Movements are b~I~t on real-h~e stones
that teach, inspire, fortify, and remind the participant~ of~hejustness of
their cause.I5 The cultural resistance oflow status mmonty and female
workers represents a rich lode of true tales to fuel a movement. The
tort of outrage would serve a useful pedag<:'~cal function if inst~ad of
compelling accommodation an.d s~rrender It mcorporate?. the w1sdo~
of the critique, extolled the d1gn1ty of workers, and leg~umated their
claims to respectful treatment by supervisors. A "worker-centric" tort
of outrage would not convey anything pa~ticularly new to the workers;
it would merely formulate in a formal, pomted, coherent statement the
emancipatory themes of the lessons experience has already taught
them.t6 Tort law can do no less if employers are to be brought around
to the view that intentionally inflicted emotional distress is an unacceptable tool of worker control.
I.
IN
SuPPORT oF AUTHORITATIVE ABUSE
This section offers a summary of what the courts and commentators

have to say about abuse in the workpl~ce i.n the con.text of the ~ort of
outrage.I7 Legal discourse on. the sub}ect Is,largely 1~ accord with the
widely disseminated "conventional wisdom regardmg employer su15. D. BELL, ANn WE ARE NoT SAVED 253 (1987).
.
16. Cf S. ARONOWITZ & H. GIROUX, EDUCATION UND.ER SIEGE 107-08, !56 (1985) (radi.
cal pedagogy must incorporate aspects of the cultural res1stance of students).
17 There are a number of cases in which the courts have not reached the me';~s ~f t~e
emplo;ees' claims because applicable statutory provisions either preempt the courts JUns~JC
tion or preclude the application of state tort law. Federallabo~ law, for ~x.ample, may provide
the sole form of relief for plaintiffs who are covered by c<_>llectlv~ barg.amm!? a~e~ments. See
note 278 infra and accompanying text. Furthermore, cla1ms ~f mtent~~nal mfhctlon of emo;
tiona! distress have sometimes been defeated by the exclusiv1ty prov1s1ons of state workers
compensation laws. See, e.g., Battista v. Chrysler Corp., 454 A.2d 286, 288_-89 (Del. Super. Ct:
1982) Brown v. Winn-Dixie Montgomery, Inc., 469 So. 2d 155 (Fla. D1st. Ct. App. 1985),
Simm~ns v. Merchants Mut. Ins. Co., 394 Mass. 1007,476 N.E.2d 221 (19~5): Foley v. Polar. corp., 381M ass. 545 , 413 N E 2d 711 (1980) Hood v. Trans World A1rhnes,
648 S.W.2d
010
.
d
167 (Mo. Ct. App. 1983). Many jurisdictions, however, allow such t~rt suns to procee smce
they involve intentional misconduct and emotional (rather than physJCal) h~rm. Se~, e.g._. Russell v. Massachusetts Mut. Life Ins. Co., 722 F.2d 482 (9th Cir. 1983) (ap~ly1~~ C a~~o;~~ l;;J
rev'd on other grounds, 473 U.S. 134 (1985); Ford v.. Revlon, Inc., 153 An~.
.
(1987); Beauchamp v. Dow Chemical Co., 427 M1ch. I, 398 N.W.2d 882 (1986), Hogan v.
Fors th Count Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986). Compar~ ~enn.ett v.
Furr s C a.etenas,
,.
ry I n c., 549 F Supp 887 (D Colo 1982) (sexual harassment
giVIng
to
k
t' nse
) ith
distress claim is too remote from employment to ~e.barred .bY wor er s coml?ensa ton w
K d
E
645 p 2d 1300 (Colo. 1982) (exclustvtty proviSions bar tort acuon where con. employment). See also 2 A A. LI\RSON,
' .
T HE LAw OF WoRKMEN's
CoMan istv.notvans,
duct
in course of
.
PENSATION 68.34(d) (1987) (exclusivity should depend upon whet~er tort.ts addressed to
non-physical i~ury and whether plaintiff seeks recovery for substanttal phystcal harm).
306
Critical
STANFORD LAW REVIEW

[Vol. 41:1
18
perviSlon. As such, it reflects a view that is neither ove

.
of workers, nor instrumentally b" d . f:
rtly supportive
Although employees win cases th tase lm avor of employers.I9
ahead.
'
e emp oyers somehow come out
In delineating the requirem t f
.
. en s o a cause of actton for the intentiona! infliction of emotio
tion 46 of the Restatement ~al d~stress, th~ courts generally rely on Secplaintiff prove that the d~ceecnodna) to(Tortsd. o Section 46 requires that the
"
n s con uct was
so outrageous in character and s
.
all possible bounds of de~enc :n~xtreme m degree, as to go beyond
utterly intolerable in a civilizeJ'
to ~e regarded as atrocious, and
in which the recitation of th c. commumty. Generally, the case is one
.
e 1acts to an average memb
f h
mumty would arouse his resentment a .
er o t e comgamst the actor, and lead him to
exclaim, "Outrageous!"21
If the conduct does not rise to the

. .
. . .
being among those "m
.
1 ~eq~ust_t~ level, It Is dtsmissed as
ere msu ts, mdtgmttes thre t
petty oppressions, or other trivialities" to whtch, th e vtcttm
~ s_, a~noyances,
must nee18. Although judicial opinions and law r .
.
.
group and are not widely disseminated th .
evew arucles are addressed to a small elite
that other institutions are spreading s' elr c~nt~nt bears some relationship to the messages
Po~c~ OF LAw 281, 286-87 (D. Kai ee~ e.g., or ~n, Nnu DevelofJ!nents in Legal Theory, in THE
ony, m id. at 304. It is not claimed he;:~:~~~ 9~2), Gre_er, Anwmo Gramsci and "Legal Hegemover the broad spectrum of societal gro
The ~w ~as mstru~ental or deterministic control
mate," in the minds of those who are p~:; to i~ ~ .s most ~ahent purpose may be to "legitiMERQ.UIOR, THE VEIL AND THE MASK 37-38 Se; er exercses of power over others. See J.
Culture, 1986 Wis. L. REv. 5 ,
.
also Chase, Toward a Legal Theory of Popular

27 54347
. 19. rJ:e analysis in this article draws heavil u
wnh A~tomo Gramsci. See A. GRAMCI SELE
y pon the theory of hegemony associated
G. Smth eds. 1971). See also C Bo~GS GCTIONS ~ROM THE PRISON NoTEBOOKs (Q Hoare &
Ideology in Gramsci, in GRAMSCI A~D MAR~IS~SCI s ~ARXISM (1976); Mouffe, Hegemony and
Material Bases of Consent: Economics alld Politics ill =~RY 6~ ~C. Mouffe ed. 1979); Przeworski.
ORY 21 (1980); C. WEST, PROPHESY DELIVERA
I egemomc yslem, I PoL. POWER & Soc. THE:IANIT.112-212 (1982). Gramsci's theo :~~AN AFRO-~MERICAN REVOLUTIONARY CHRISdeologtcal institutions of the dominant cl7ss ri ~~emony reJects th.e thesis t~at the ideas or
people. See Mouffe, supra, at 195 _96 , 189_
~a ~ structure.a~d dcta.te the hves of ordinary
92
through the organization of force or c
.
t er, the existmg social order is maintained
Anlomo
. Gramsa,. NEW LEFT REVIEW 5-78 (1976-1977)
oercJve power
p ' see' tg
. : An d erson, T.'L
t<e Antinomies of
the manufacture of "active consent .. A G
rzeworsk1, supra, at 25, 58, and through
Mouffe, supra, at 184. See also M
RAMSCI, supra, at 244, or of "a collective will"
1980);]. GAVENTA, POWER AND Po~ER~~~:~~: ci~;,ER/KNOWLEOG~ .~~-108 (C. Gordon ed.
hu":'~n masses, and create the terrain on which
). For Gramsa: deologies ... organize
posi!IO~, struggle, etc... A. GRAMSCI supra at 3~~eoAiet
m~:JVe, ac<!mre consciousness of their
11
nance IS maintained through the as~enda~c of
e deologiCal.level, ~ege~onic domi. Y
a coher~nt world VIew wluch IS unified by
values related to the role of the he
va
..
gemomc c1ass but wh 1ch al ... 1 d [
.
so. me u e s] elements from
rymg sources. Mouffe, supra at 193 Th ffi '
of the subordinate classes may' be sub.tl e ~ .ect. of th~ w?~ld VIe": on the ideas and beliefs
rather than dictating positive affirmatione ;n md~~c~ hmltmg their oppositional potential
WoRKING CLAss Kms GET WORKING C~ssjJs:7f9~7). WILLIS, LEARNING To LABOUR: How
F .
20. RESTATEMENT (SECOND) OF TORTS 46

treme and outrageous conduct intent
II
(1965) reads as follows: "One who by exanother is subject to liability for su:~:a y t<?r r~c~_essly causes severe emotional distress to
results from it, for such bodily harm." mo Iona stress, and if bodily harm to the other
21. ld. at comment d.
November 1988]
307
Studies
EMPLOYER ABUSE
essarily be expected and required to be hardened. " 22 As applied to the

employment relationship, this means that every practice or pattern of
emotional mistreatment except the outrageous, atrocious, and intolerable is treated as the ordinary stuff of everyday work life.
The approach mandated by Section 46 immediately focuses on
whether the employer's or supervisor's coercion was excessive and
skips the threshold issue of whether any amount of emotional mistreatment was justified. In this regard, it differs from the 1948 version of
the section which required that the defendant show that abuse of the
plaintiff was privileged. 23 The legal analysis required by the current
version of Section 46 thus allows courts to avoid elaborate explanations
for their decisions. Beginning with the assumption that some amount
of intentionally inflicted pain is acceptable, they need not and often do
not go much beyond quoting the comments to Section 46 and offering
several conclusory sentences sprinkled with Restatement terminology.
Courts concentrate on the facts of the appeal at hand, and emphasize or
depreciate the nuances that distinguish them from those of previously
decided cases.2 4
The very ad hoc nature of the adjudications casts abuse as a conundrum too amorphous, ephemeral, and slippery to be effectively cured
with judicial relief. Although the courts acknowledge that abuse can be
a problem and invoke an indeterminate test that should be sufficiently
malleable to support broad relief, 25 their vague factual analyses belie
their expressions of concern. Overall, the legal analysis confirms that
abuse cannot really be systematically attacked because it lacks specificity and concreteness. Moreover, in the eyes of the law, abuse seems
less a privilege of employers than an intrinsic predicament of the employment relationship. It is part of the natural disorder of work life that
cannot be changed.
If the indeterminacy and contradictions the holdings reflect are
22. /d. In addition, First Amendment concerns may dictate that insulting language,
slurs, and epithets be immune from liability. See generally Firsl Amendment Limits on Tori Liabilil.~
for Words Intended lo lnflicl Sroere Emotional Distress, 85. CoLUM. L. REv. 1749 (1985) (student
author).
23. The 1948 version of section 46 provided that "[o]ne who, without a privilege to do
so. intentionally causes severe emotional distress to another is liable (a) for such emotional
distress, and (b) for bodily harm resulting from it.'' RESTATEMENT OF THE LAw: 1948 SUPPLEMENT, ToRTS 46 (1948). Daniel Givelber, in his extensive article on the tort, suggests that
the privilege approach was subsequently rejected because it required that "issues such as the
legitimacy of coercion" be directly addressed. Givelber, The Righi to Minimum Social Decency
and lhe Limits of Evmhanded11ess: htlentionallnjliclion of Emotional Distress h.~ Oulragtous Conduct, 82
CoLuM. L. REv. 42, 62 (1982).
24. See. e.g., Zamboni v. Stamler, 847 F.2d 73 (3d Cir. 1988); Salazar v. Furr"s Inc., 629 F.
Supp. 1403 (D.N.M. 1986); Surrency v. Harbison, 489 So. 2d 1097, 1105-06 (Ala. 1986); Dorr
v. C. B. Johnson, 660 P.2d (Colo. App. 1983);jackson v. Sun Oil Co. of Pa., 521 A.2d 469 (Pa.
1987); Hurst v. Farmer, 40 Wash. App. 116, 697 P.2d 280 (1985).
25. Givelber lauds the seeming indeterminacy of the outrageousness standard on the
ground that it "has facilitated [the tort's] development by freeing courts of the necessity of
rationalizing results in terms of rules of universal applicability.'' Givelber, supra note 23, at
43.
308
STANFORD LAW REVIEW
~~~~:a~~;~ioa?c:l t~r::inions are read as

speak the
A.
Critical
[Vol. 41: I
a single body united by
conve~tional wi:!:~~a:~~r;~!~ ::~;~~a!::~~::~erns be-
Traditional Employer Prerogatives
The courts accord empl

d
.
.
loyees, a t' .t.
.
oyers WI e 1atitude m directing their ernP
e IVI Ies m ways that cause th
. al .
courts leave little doubt as to wh . . hem emotiOn distress. The
employer is free to ign
. o ISm c arge of the workplace.26 The
ore any mterest workers may h
.
rfi
.
particular tasks, using particular skills or d .
. ave m pe o~mmg
level of proficiency or ease 27 Th
, k c;>mg a JOb at a particular
decisions
[that do] n~t
':Is, wo~ assignments are "managerial
mental di;t;e~s "28 Similar! qu~~iy ~s mt:~tional infliction of severe
load may "cre~t[e]
.Y w I e ImpositiOn of an inordinate work
an environment which is oppressive to function
26. Employers have attempted to extend the
.
homes and private lives of their emplo
Th lr con.trol beyond the workplace into the
lowed workers a sphere of privacy in wt?-e~s;h e c~urts !n outrage cases have sometimes alChur_ v. Philadelphia Eagles Football c:~b 5~~f2~y~;s conce~s are not given priority. Su
fatal dlness communicated by team h ... '
~5 (3d C1r. 1979) (false diagnosis of

Supp. 992 (N.D. Ill. 1985) (deput:s~;~~ to '6tortswnter); Baltz v. County of Will. 609 F.
ployer); C?llins v. General Time Corp., 549 ;r~~ y r;~oved from home a_n<_l jailed by embadgered m her home about malingering) R I P~.ll (N.D. Ala. 1982) (111Jured employee
Cal. Rptr. 524 (1984) (supervisor demand~d t~:rn- I er_v. IBM, 162 Cal. App. 3d 241, 208
employee of competitor) But see Wo d .
B su~ordmate end personal relationship with
(W.D._Ya. 1986) (plaintiff's job re ui~edn:ff:. n oar of Grand Trust~es, 633 !' Supp. 583
was Widowed); Salazar v. Furr's In~ 629 F
ot outrageous to termmate plamtilf after he
fired for being married to employ~~ f . upp. 1403 (D.N.M. 1986) (pregnant employee
d"
o competitor does not stat
1 c .
e mot10na
1 1stress) Pemberton v Beth! h
e a c a1m .or mfhct10 n of
S
( 1986) (employer's' disclosure of ~nion ~u~m tee1 C~ .. 6~ ~d. App._ 133, 502 A.2d II 0 I
bers and infidelities to wife in retaliation " hn~ss a~~~t s cnmmal conviction to union mem
)
_,_.
tor 1s act1v1t1es was not a t"
bl
.
.
p nvacy,
cert. =uted, 107 S. Ct. 57 4 ( 1986) p
c 10na e as an mvas 10n of
854 (1986) (supervisor fired for fraternizinga~?t~ v. JbC.d~enney Co . 301 Or. 117. 719 P.2d
Ar~JOS v. Corporation of the Presidio Bisho ~f su or mate: no tort acti?n allowed). Cf
Samts, 594 F. Supp. 791 (D. Utah 19~4) ( h ph the Church of Jesus Chnst of L.atter-Dav
sexua1 actiVIties,
contributions to church c durcb employer
not ba rre d firom mqUJring
d"
about
determine fitness for employment) rev'd' an
e lence and allegiance to church leaders 10
27. See, e.g., Cornblith v Firsr' Ma ton o
grounds, 107 S. Ct 2862 (1987).
Rptr. 216 (1968) (injured e.;.ployee dm ~~ance_ Supply Co., 268 Cal. App. 2d 564 74 Cal
work and upon return); Bur ess v
. eme assl~tance of co-workers during abse~ce fro~
(1985) (delivery driver fire~ for. Ce~~~af.o S~n-Times, 132 Ill. App. 3d 181,476 N E 2d 1284
robbed); Frye v. CBS Inc., 671 S. ,J_2d I; ~~~g ~: request for route r~assignment ~ft~r being
o[ cameraman). Nor will loyalty to th
\ Ct. App. 1984) (des1gn artist assigned 10 job
of continued employment su on an ~ emp oye~ or actions .taken in reliance on the prospect
440 (N.D. Ill. 1985); Cautillf~. GAF ~!~age ~~a;n;; See Pudll v. Smart Buy, Inc., 607 F. Supp.
Roberts~aw Controls Co., 67! P.2d 989 ct~Io C . Supp. 71 (E. D. Pa. 1982); Widdifield v.
sumer Fm. Corp., 653 F. Supp. 1184 (S D Oh. t. App. 1983); see alro Crawford v. ITr Conformance rating lowered and is threate~ed wit~od~~6)_ (twenty-t~ree year employee has perto accept firm's promotion/relocation policy from ~~~~n ~nd hdlscharge because she refuses
. 28. Hall v. May Dep't Stores, 292 Or 131
w IC s e I ought she was exempt).
Smith, 628 F. Supp. 283 (M.D. Pa. 198S) (cha~3~~637P.2d_I26, 132(1981);seealwLynnv.
ments of employee active in union doe
. g . g supervisor, headquarters, and assignUniv_ersity v. Best, 484 A.2d 958 (D.C. sl~~~)glve nse ~o emotional distres.s claim); Howard
tendmg workshops, recalling proposals to th ~preventmg department chairperson from atout consultation constituted disa reement
oard o_f ~rust~es, and dismissing faculty withconduct; sexual harrassment how~ver
~r adbml tnlstratlon, not actionable outrageous
'
' was actlona e outrageous conduct).
t/:e..
:v
November 1988]
309
Studies
EMPLOYER ABUSE
within ... it is not the type of action to arouse resentment, by the average member of the community .... " 29
The courts recognize that emotional disturbance is an inherent aspect of being reprimanded, demoted, or discharged. But they allow the
victim no cause of action if the emotional harm is an unintended or
incidental result of an exercise of legitimate workplace authority, civilly
undertaken. so The courts are particularly wary of attempts to use Section 46 to evade the rules sanctioning the summary discharge of at-will
employees.' 1 Assertions to the effect that "if the firing of ... [plaintiff]
was done in an outrageous manner, then every firing that occurs would
be considered outrageous," are quite common.'2
Liability does not always follow, even when the supervisor is rude or
insensitive in carrying out a personnel action." For example, a salesman complained that his supervisor cursed him, took over sales
presentations, and otherwise embarrassed him in the presence of customers and fellow workers. 34 The court condoned the behavior; the
supervisor's "intentions, much as any supervisor's in a similar situation,
were pretty clearly to motivate a recalcitrant employee. " 35 In another
case, the head of an employer's legal department cursed, hollered at,
and fired a secretary for taking the initiative in contacting a person
29. Hooten v. Pennsylvania College of Optometry, 601 F. Supp. ll51, 1155 (E.D. Pa.
1984);seealro Petersen v. First Fed. Sav. & Loan Ass'n, 617 F. Supp. 1039 (D. St. Croix 1985)
(employer not guilty of outrageous conduct where bank branch manager worked late at night
without assistance, used her personal car for bank business, was not paid for overtime, and
lost the opportunity to be with her family).
30. See, e.g., Pelizza v. Readers' Digest Sales & Serv., Inc., 624 F. Supp. 806 (N.D. Ill.
1985); Batchelor v. Sears, Roebuck & Co., 574 F. Supp. 1480 (E.D. Mich. 1983); Crain v.
Burroughs Corp . 560 F. Supp. 849 (C.D. Cal. 1983); Ray v. Edwards, 557 F. Supp. 664 (N.D.
Ga. 1982), modified, 725 F.2d 655 (5th Cir. 1984); Harrell v. Reynolds Metals Co., 495 So. 2d
1381 (Ala. 1986); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Ledl v.
Quik Pik Food Stores, 133 Mich. App. 583, 349 N.W.2d 529 (1984); McKnight v. Simpson's
Beauty Supply, Inc., 86 N.C. App. 451, 358 S.E.2d 107 (1987); Elias v. Youngken, 493 A.2d
158 (R.I. 1985); Bringle v. Methodist Hosp., 701 S.W.2d 622 (Tenn. Ct. App. 1985); Armstrong v. Richland Clinic, Inc., 42 Wash. App. 181, 709 P.2d 1237 (1985); see alro RESTATEMENT (SECOND) OF TORTS 46 comment g, comment i (1965).
31. See, e.g., Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 CoLUM. L. REV. 1404 (1967).
32. Meierer v. E.l. Dupont De Nemours & Co., 607 F. Supp. 1170, 1182 (D.C.S.C.
1985); ste alro Givens v. Hixson, 275 Ark. 370,631 S.W.2d 263 (1982); Santa Monica Hosp. v.
Superior Court, 218 Cal. Rptr. 543 (1985), review granted, 711 P.2d 520, 222 Cal. Rptr. 224
(1986); Heying v. Simonaitis, 126 Ill. App. 3d 157,466 N.E.2d 1137 (1984); Richey v. American Auto. Ass'n, Inc., 380 Mass. 835, 406 N.E.2d 675 (1980); Sperber v. Galigher Ash Co.,
747 P.2d 1025 (Utah 1987).
33. See. e.g., Corum v. Farm Credit Servs., 628 F. Supp. 707 (D. Minn. 1986); Moye v.
Gary, 595 F. Supp. 738 (S.D.N.Y. 1984); Cushing v. General Time Corp .. 549 F. Supp. 768
(N.D. Ala. 1982); Magruder v. Selling Areas Mktg . Inc., 439 F. Supp. 1155 (N.D. Ill. 1977);
Harris v. First Fed. Sav. & Loan Assn., 129 Ill. App. 3d 978,473 N.E.2d 457 (1984); Witkowski v. St. Anne's Hosp . 113 Ill. App. 3d 745,447 N.E.2d 1016 (1983); Reihmann v. Foerstner,
375 N.W.2d 677 (Iowa 1985). But see Intentional Infliction of Emotional Distress in the Employment at
Will Setting: Limiting /he Employee's Manner of Discharge, 60 IND. L.J. 365 (1984-1985) (arguing for
a motive versus methods distinction) (student author).
34. Byrnes v. Orkin Exterminating Co., 562 F. Supp. 892, 895 (E.D. L.a. 1983).
35. /d. at 896.
310
10
STANFORD LAW REVIEW
Critical
[Vol. 41:1
whose qualifications suggested that she might fulfill a personnel need

and passing the pertinent information on to another lawyer in the office.36 Although the supervisor's conduct was "not above reproach,"
the court would not characterize it as "so extreme and outrageous as to
be tortious. " 37
In lieu of the relatively straightforward, aboveboard forms of discipline, supervisors sometimes engage in indirect methods of disapproval
that take their toll on the employee's psyche because they are insidious
and underhanded. Instead of firing an employee, supervisors may undertake a campaign to make the job so unbearable that she or he will
38
resign. The law of outrage poses little or no impediment to the indirect, "constructive discharge" approach. The plaintiff in Beidler v. W R.
39
Grace, Inc.
was subjected to such treatment. He was allegedly excluded from meetings necessary to his job performance and given an
assistant without his consultation. Moreover, he found materials and
papers on his desk rearranged, received no information on his job performance except through nonsupervisory employees and rumors, and
was denied a meeting with his superiors. The plaintiff, who was ultimately fired, thought this conduct atrocious, but the court did not.4
In addition, the outrage cases suggest that an employer generally
has the right to demand obedience to commands, and loyalty to the
enterprise when threatened by outside forces. Notwithstanding the
new wisdom that lauds the benefits of dissent and whistleblowing for
the health of productive enterprises, 41 management can deal harshly
with subordinates who challenge supervisory authority or otherwise impede the work of the firm, however principled their objections.42 The
36. Rooney v. National Super Mkts., 668 S.W.2d 649, 650-51 (Mo. Ct. App. 1984).
37. /d. at 651.
38. See, e.g., Well v. Thomas, 569 F. Supp. 426 (E.D. l'a. 1985) (hospital personnel director lost job title, private office, and secretary; was given first poor performance rating in 25
years; and was told that others would have resigned under similar circumstances); Shewmaker
v. Minchew, 504 F. Supp. 156 (D.D.C. 1980), a.IJ'd, 666 F.2d 616 (D.C. Cir. 1981); Snyder v.
Sunshine Dairy, 87 Or. App. 215, 742 P.2d 57 (1987).
39. 461 F. Supp. 1013 (E.D. Pa. 1978), a./J'd, 609 F.2d 500 (3d Cir. 1979).
40. !d. at 1016.
41. See, e.g., D. EWING, "Do IT MY WAY OR You'RE FIREn!": EMPLOYEE RIGHTs ANU THE
CHANGING ROLE OF MANAGEMENT PREROGATIVES 23-25 (1983). But Jee id. at 30 (noting that
bosses are justified in fiting whistleblowers).
42. Kirwin v. N.Y. State Office of Mental Health, 665 F. Supp. 1034 (E.D.N.Y. 1987)
(psychologist reassigned after cooperating with investigation of hospital unit about which she
had complained); Polson v. Davis, 635 F. Supp. 1130 (D. Kan. 1986) (discharge of employment supervisor who objected to city's failure to abide by anti-discrimination laws and guidelines); Collins v. Gulf Oil Corp., 605 F. Supp. 1519 (D. Conn. 1985) (insurance accountant
discharged for nonpanicipation in concealment of funds); Avallone v. Wilmington Medical
Center, Inc., 553 F. Supp. 931 (D. Del. 1982) (head nurse disciplined after pointing out dangers in patient treatment procedure); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771,
324 S.E.2d 593 (1984) (employee reported alleged defects in experimental tires); Murphy v.
American Home Prods. Corp., 58 N.Y.2d 2!!3, 461 N.Y.S.2d 232,448 N.E.2d 86 (1983) (company officer and assistant treasurer fired after reponing illegal accounting practices); Jet also
Daniel v. Magma Copper Co., 127 Ariz. 320, 620 P.2d 699 ( 1980) (forem"an fired when he
indicated intention to proceed with malpractice action against company-owned hospital de-
November 1988]
311
Studies
11
EMPLOYER ABUSE
few exceptions involve employee disobedie~~e or disloyalty in response

na ement fraud or breach of statute.
investigating theft and dishonesty, employefirs frequdentlyd
to
.
l
h . ues The courts have o ten con one
emotionally dtstressfu tee mq
.
d" - ai that the employees
.
h .
and summary tsmtss s
.
terrogatiOn tee n~ques .
.
humiliatin , embarrassing, and pamhave felt to be arbttrary, m~ultm~, .
few ~ctories.45 The successful
fui.44 But they have also gtven ~~~urn~ a innocent and most have been
claimants have been almo~ um ~trm ~y be that, courts are somewhat
young female s~rvice wor e~s. his :'on text, but a more likely explanamore sympathhette to ~dorke;~:~:male plaintiffs especially deserving of
tion is that t ey const er
~he~
~~~
.
lo ee relations}; Beye v. Bureau of Nat'I.Affairs, 59
h informed on co-workers not gtven assurspite warning that tt would be bad for empl y
Md App 642, 4 77 A.2d 1197 (1984} (emp o_yee w fol
ltytn the context of federal labor law,
ed
} On the tssue o oya
AMERICAN LABOR LAw 84-86 (1983}.
ance of safety and fore to restgn
seej. ALTESON, VALU~S AND J\:SSUMI'TIONS I~U . 1244 (N.D. Ill. 1986} (harassment of~(ac~
43 Pollard v. Ctty of Chtcago, 64 3 F. PP
f
workers supports cause of actton},
d 1 d
a1 harassment o c0
h
ed
male who reporte . raaa. an sexu 91 So 2d 948 (La. Ct. App. 1980} (employee arass
. umma ud ment for defendant reversed);
Maggio v. St. Francts Medical Center, 3
for reponing s~perior's illegal tran;fe: ~~u~~s5; (Mo.t{. A~p. 1986} (fired employee who
Beasley v. Affihated ~osp. _Prods., 1 .. ~ rafHe stated claim}; see also Kassel v. U.S. Veterrefused t? predetermme w~~(~o~a~v~~~8} (psychologist threatened with firing, tran~~~rr~f
ans Admm., 682 F. ~upp. .
: ld} But see Pratt v. Caterpillar Tractor_ Co.,
because misquoted m paper, clan~;h~ h rge in retaliation for refusal to viOlate fe?eral
App. 3d 588, 5?<J N.E.~d lOOd ~oes no/t~~icate state public policy and will not sustam an
statutes regulatmg foret~ tra e
59 1987}.
.
outrage claim}, appeal tfmud, 506 N.E.2~ 9
~9 F. Supp. 1217 (S.D.W. Va. 1?8?} !~tx _dar,
44. See, e.g., McKmney v. K-Mart ~rp., d with interrogator calling plamuff a !tar
investigation of shortage in layaway recetpts e). Jsackson v.J.C. Penney Co., 616 F. Supp. 2~3
and banging his hands on table; not outrageous '
"t
ards followed by summary dts(E.D. Pa. 1985} (accusation in _the presence ::Vf ~~ !~~~:~n';; 4 So. 2d 36 ~, 367. (Ala. 19~0)
missal, not out~geous); Amenc.an RoadhSeed that plaintiff was "harassed, mvestt_gated ~~t~(no cause of actton although evtdence s ow d
t man"ly and terminated wtthout JUStt.
d earm gs ' treate
uncus
1e d
out cause, accused oftmproper
382 So
2do 150 (Fla.
Ct. App. 198O) (caJo.
fication"); Food Fair, Inc. v. Ande~on, b don. threats of discharge); Gibson v. Chemt~al
confessions and consents to polygrap
~eE 2 d 37 (I!J87) (assistance given Secre~ Serv!c.e
Card Serv_Corp., 157 Ill. App. 3d ~II, 5
. ., a ainst husband within employers leglllagent who threatened employee wtthl accus~~~o ;7lN.W.2d 98 (Iowa 1985) (employee who
.,
r of discharging all employees on
mate right) Haldeman v. Total Petro cum,
passed lie detector test nonetheles~ fired pursu:~:~ ~~~c~.W.2d 4, 6 (Mo. Ct. Ap~- 198_5)
shift on which shortfall occurs); Gtbso~ v. H~
th"ng during polygraph sessiOn, hk(employee unable to control foot tapp~ng o~ ee)d s~~ck 'or electrocute her); Todd v. South
ened machine to an "octopus" that she eare 7;5u 321 S.E.2d 602 (Ct. App. 1984) (insurance
2 83
Carolina Farm Bureau Mut.ln~. Co., . .~;-all ~dministered voice stress test; no outrage).
agent falsely accused of consptracy fatls tl g 5~5 F Su p 66 (E.D. Pa. 1983) (26-yea.r e~45 Su Shipkowski v. u.. s. Steel Corp:,
b Pfi
ted court refuses to dtsm1ss
hb ~
t rement ene 1ts ves
.
S W d 681 (1980) (employee fired o~ s~sptployee fired for theft one mom e ore r~
daim) M B M. Co. v. Counce, 268 Ark. 26 596 2
ummary Judgment); Momodts v.
'
h k hh ld court overturns s
h
.
cion of stealing and payc ec 2~Jl21; ci985) (employee forced to undergo polygrap . test.
Cook, 64 Md. Ap~. I, 494 A.
371 Mass. 140, 355 N.E.2d 31 ~ ( 197~) (wattress
claim is stated); Agts v. HowardJ~hnson Co., eft claim is stated); Kaminskt v. Umted Parcel
e fired for theft not reinstated after
fired in alphabetical order upon dtscovery of~) (.
1
Serv., 120 A.D.2d 409, 501 N.Y:S-~d 87l (I~ Hall :m~:y~ep't Stores, 292 Or. 131, 637_1'.2~
actual thief was discovered: claim ts stated),
.
y ted by security officers: claim ts
126 (1981) (employee accused of stealing and tn~~~o~;d
(1981) (employee forced to
657
stated); Bodewig v. K-Mart, Inc., 54 Or. App. 48 '
undergo strip-search).
m1o
Critical
312
12
Critical
Studies
STANFORD LAW REVIEW
[Vol. 41:1
compassion because of the emotional vulnerability that is associated.

with their sex and age.
B. Abuse and Status Group Distinctions
The nature of the employee's work setting, the color of her or his
collar, and the employee's age, sex, race, or ethnicity can explicitly affect the kind and amount of abuse the employee is expected to bear. In
general, the claims that are most likely to survive court review are those
attacking harassment based on race, 46 ethnicity,4 7 national origin, 48
and sex. 49 The cases involving minority group members generally involve overt racist or ethnocentric' slurs. Similarly, the suits of the successful female plaintiffs have included conduct that falls squarely within
the definition of sexual harassment developed by the Equal Employment Opportunity Commission50 under Title VII. 51 The courts will act
positively when there is blatant conduct, but do not extend protection
against forms of discriminatory abuse that are less explicit or
demonstrative. 52
46. Robinson v. Hewleu-Packard Corp., 183 Cal. App. 3d 1108, 228 Cal. Rptr. 591
(1986); Alcorn v. Anbro Eng'g,lnc., 2 Cal.3d 493,468 P.2d 216,86 Cal. Rptr. 88 (1970). See
also Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17
HARV. C.R.-C.L. L. REv. 133 (1982); Denis, Race HaraJsment Discrimination: A Problem That Won't
Go Away~. 10 EMPLOYEE REL. LJ. 415 (1984); Richardson, Racism: A Tort of Outrage, 61 OR. L.
REV. 267 (1982).
47. Gomez v. Hug, 7 Kan. App. 2d 603, 645 P.2d 916 (1982); Contreras v. Crown
Zellerbach Corp., 88 Wash. 2d 735, 565 P.2d 1173 (1977).
48. Agarwal v.Johnson, 25 Cal.3d 932,603 P.2d 58, 160 Cal. Rptr. 141 (1979); Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (1981); Gulati v. Burlington N.R.R., 364 N.W.2d
446 (Minn. Ct. App. 1985), cert. denied, 107 S.Ct. 1616 (1987).
49. See, e.g., Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984); Bowersox v.
P.H. Glatfelter Co., 677 F. Supp. 307 (M.D. Pa. 1988); Clay v. Quartet Mfg. Co., 644 F. Supp.
56 (N.D. Ill. 1986); Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986); Shaffer v. National
Can Corp., 565 F. Supp. 909 (E.D. Pa. 1983); Cummings v. Walsh Constr. Co., 561 F. Supp.
872 (S.D. Ga. 1983); Stewart v. Thomas, 538 F. Supp. 891 (D.D.C. 1982); Rogers v. Loews
L'Enfant Plaza Hotel, 526 F. Supp. 523 (D.D.C. 1981); Ford v. Revlon, Inc., 153 Ariz. 38, 734
P.2d 580 (1987); Howard Univ. v. Best, 484 A.2d 958 (D.C. 1984); McCalla v. Ellis, 341
N.W.2d 525 (Mich. Ct. App. 1983); O'Reilly v. Executone of Albany, Inc., 121 A.D.2d 772,
503 N.Y.S.2d 185 (1986); Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.I-:.2d 116
(1986). See also Hart v. National Mtg. & Land Co., 189 Cal. App. 3d 1420, 235 Cal Rptr. 68
( 1987) (male encounters harassment of a sexual nature from a male supervisor).
50. Guidelines of Sexual Harassment, 29 C.F.R. 1604.11 (1986).
51. 42 U.S.C. 2000(e)(l)-2000(e)(17) (1982).
52. Su, e.g., Oldfather v. Ohio Dep't ofTransp., 653 F. Supp. 1167 (S.D. Ohio 19!16)
(female fired for immoral behavior while supervisor with whom she had extramarital affair was
retained; not outrageous); Hooten v. Pennsylvania College of Optometry, 60 I F. Supp. 1151
(E.D. Pa. 1984) (verbal disparagement and work overload of employee who was a wife and
mother not actionable outrage); Kersul v. Skulls Angels, Inc., 130 Misc. 2d 345,495 N.Y.S.2d
886 (Sup. Ct. 1985) (employee discharged for complaining about specialtreatmem accordecl
employer's lover; court allows claim for sexual discrimination but not outrage); Belanolf v.
Grayson, 98 A.D.2d 353,471 N.Y.S.2d 91 (App. Div. 1!184) (allegation of poor evaluations
and termination following announcement of impending marriage did not satisfy egregiousness standard); Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 1'.2d 430 (19!!7) (em
ployer's tolerance of his son's harassment of employee-plaintiff not sufficiently oppressive).
Sre also A Theory of Tort Liabilit_v for Si'Xual/laraJsmm/ i11 thf ll'orkplau, 134 U. I'A. 1.. REV. 1461,
1481-85 (1986) (student author). With regard to race and ethnicity, compare Patterson v. Me-
November 1988]
313
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13
EMPLOYER ABUSE
The courts' formalistic perspective means that employees_ o~ the

same race or sex who work together and see themselve~ as stmtlarly
abused may be accorded different degrees of legal protection. Ho!fan_ v.
Forsyth Country Club Co.,s3 for example, involved th~ee female p1amuffs
rked in the defendant's dining room. While all were verbally
wh 0 Wo
.
d
.
k
harassed by superiors,s4 one was also subJecte t? sugge~uve remar s
and physical sexual contact.ss The second was gtven as.stgnments she
could not perform because she was pregnant. 56 T_he thtrd had menus
thrown in her face and her duties were interfered wtth,_ but t~ere ~as ':o
specific explanation given for this treatment. 57 _ ~he t~tenuonal mfhction of emotional distress claim of the first pl~muff wtt~st?od ~efend
ant's motion for summary judgment because 1t ~~s easily tde_nt~fied ~s
"sexual harassment."58 The claims of the remammg two p1am~tffs dtd
not. 59 The court suggested that it could n?t draw_ a_ connectt?n
tw.,.en the harassment they encountered and tmpermtsstble sex dts<;:nm,.
. a llegat10ns.
.
6o
ination
in the absence of expI'tCit
Status group characteristics can sometimes increase the. amount of
abusive behavior a worker must tolerate. More enduranc~ ts exp~cted
from males in general and from blue-collar empl_oyees m parttcula_r
than from women, for example. This point is well tllust:at~d by Hams
v. Jones.61 A supervisor mimicked and harassed the plam~tff, an_ automobile assembly line worker who stuttered seve~el~- 6 ~ Tna1 te~ttmon_y
revealed that others at the plant imitated the plamttff s ~peech tmpedtment and that life there included "profanity, namecallmg and ro~~h
housing among the employees."63 The court state~ that [t]n
determining whether conduct is extreme and outrageous, It sho~ld n?t
be considered in a sterile setting, detached from the surroundt~gs m
which it occurred."64 Moreover, it suggested that an employees sex
?e-
Lean Credit Union, 805 F.2d 1143 (4th Cir. 1986) (directed verdi~t agai_nst plai~tiff '."?~ ai
t f domestic duues, pubhc cnucsm,

C
<-d
leged dose supervision, lack o r promouons, assgnmen
r) cerl grantfd 108 S. t. 65 , rearg. scm: ,
b
bl
k
and disparaging remarks about ac s Y sup_ervlso
'
uS 160 (1976))
108 S Ct 1419 (1987) (on whether to recons1der Runyon v. McCrary, 427
. d
and B~adiey v. Consolidated Edison Co .. 657 F. Supp 197 (S.D.N.Y._I 9b 87 ) (s~mmarytJUa!d
1 t"ons harassment JO reassgnmen s,

mentagainstplaintilfwho_aII eged _negauvee~aua
'
F su'
1066 (D. Md. 1985)
PP.
.
. .
disparaging statements) wllh Robmson v. V1tro Corp .. 6 20
<
1 t 1 rassmenl and d1scharge m reta11auon
(plaintiff states claim by allegmg unalr co~p am s, >a
for filing state racial discrimination complamt).

53. 79 N.C. App. 483, 340 S.E.2d 116 (1986).
54. /d. at 490-94, 340 S.E.2d at 121-23.
55. /d. at 490, 340 S.E.2d at 121.
56. /d. at 494, 340 S.E.2d at 123.
57. /d. at 493. 340 S.E.2d at 122-23.
58. /d. at 491, 340 S.E.2d at 121.
59. /d. at 493-94, 340 S.E.2d at 122-23.
60. /d. at 500, 340 S.E.2d at 126-27.
Gl. 281 Md. 560, 3!10 A.2d 611 (1977).
62. /d. at 562, 380 A.2d at 612.
6:i. /d. at 563, 380 A.2d at 612.
, d 74 77 (Okla 1986)
ld at 56u 380 A <ld at 615; Sff aL<o Eddy v. Brown, 715 1'.2
'td
b .
"d
G"
.
o,
b
d 5 hou not e cons ("The outrageous and extreme nature of the condm:l to c examme
.1'
Critical
314
14
STANFORD LAW REVIEW
[Vol. 41:1
and occupation were indications of her or his emotional vulnerability.

It quoted approvingly from an article by William Prosser to the effect
that "'[t]here is a difference between violent and vile profanity addressed to a lady, and the same language to a Butte miner and a United
States marine.' "65
However, where the abuse is racial in form, the rough nature of the
work and the workplace may not suffice to insulate an employer from
liability. That the plaintiff in Alcorn v. Anbro Engineering, Inc. ,66 was a
truck driver (and a Teamster shop steward) 67 did not deprive him of a
cause of action stemming from the behavior of a supervisor who apparently objected to a person of plaintiff's race being in a position of authority.68 The plaintiff informed the supervisor that a nonunion
~ember could not drive a certain truck from the job site, and the superVIsor responded with a string of racial insults uttered "in a rude, violent, and insolent manner" and summarily fired plaintiff.69 The
Supreme Court of California reversed the lower court's dismissal of the
plaintiff's outrage claim. 70 It rejected the "defendants' contention that
plaintiff, as a truckdriver must have become accustomed to such abusive
language." 71 It instead directed die trier of fact to consider plaintiff's
particular sensitivity to racial insult.72
In granting relief to employees, the courts sometimes make refere~ce to the weaker bargaining power of employees as a group, the speCial nature of the employment relationship, and the limitations on the
free mobility oflabor. 711 Said the court in Bwng v. Snyder,7 4 "[p]laintiff's
status as an employee entitled him to more protection from insultive or
abusive treatment than would be expected in interactions between two
strangers. " 75 Hall v. May Department Stores Co. 76 carried the com pariered in a sterile setting, detached from the milieu in which it took place. [footnote omitted].
The salon of Madame Pompadour is not to be likened to the rough-and-tumble atmosphere of
the American oil refinery.").
65. Har:fs. 281 Md. at 568, 380 A.2d at 615 (quoting Prosser, Intentional Infliction of
MentalSujfenng: A New Tort, 37 MICH. L. REv. 874, 887 (1939)). This same language was
invoked in Moniodis v. Cook, 64 Md. App. I, 17, 494 A.2d 212, 220 (1985), on behalf of a
female clerk who was described as being "a middle-aged lady who did not have the hardened
character of a 'butte miner' or a 'United States Marine.' "
66. 2 Cal. 3d 493, 468 P.2d 216, 86 Cal. Rptr. 88 (1970).
67. /d. at 496,468 P.2d at 217,86 Cal. Rptr. at 89.
68. /d. at 498-99, 468 P.2d at 219, 86 Cal. Rptr. at 91.
69. !d. at 496, 468 P.2d at 217, 86 Cal. Rptr. at 89.
70. ld. at 499, 468 P.2d at 219, 86 Cal. Rptr. at 91.
71. /d. at 498 n.4, 468 P.2d at 219 n.4, 86 C:il. Rptr. at 91 n.4.
72. /d.
73. S~t, e.g. Norman v. General Motors Corp .. 628 F. Supp. 702 (D. Nev. 1986). The
generally cued source of this line of reasoning is comment e to section 46 which indicates that
"(t]he e~t~eme and outrageous character of the conduct may arise from an abuse by the actor
of a pOSitiOn, or a relation with the other, which gives him actual or apparent authority over
the other, or power to affect his interests." RESTATEMENT (SECOND) or ToRTS 46 comment
e.
74. 361 N.W.2d 312 (Iowa Ct. App. 1984).
75. /d. at 316.
76. 292 Or. 131,637 P.2d 126 (1981).
November 1988]
315
Studies
EMPLOYER ABUSE
15
sons further in distinguishing outrage claims arising in other contexts:

"In our view, the duty to refrain from abusive behavior in the employment relationship comes closer to that of the physician toward a pati~nt
[in need of immediate emergency treatment] than to that .of the pohce
officers toward a citizen not in custody and free to termmate the encounter."" Drawing on language from a wrongful discharge case, the
court in Milton v. Illinois Bell Telephone Co. 78 argued that, " 'relatively immobile workers who often have no other place to market their skills,' do
not stand on equal footing with the large corporations which. employ
them. . . . It is the alleged abuse of power by a large corporation over
one of its front line employees which aggravates the outrageousness of
the conduct alleged in this case." 79
The language in these cases was invoked to justify minor reforms: 80
The dominant view is still that "in many respects employment remams
an arm's length, adult relationship between parties intent on se.curing
divergent rather than joint interests.'' 81 Worker powerl~ssness 1s considered the exception and not the rule. The abuse that 1s not declared
82
tortious, then, seems to bear the imprimatur of the victim's consent.
'
C. Severe Harm and the Implicit Requirement of Surrender

Whether they agree or not, workers are ?Y an~ large :ex~ected .to
develop the fortitude and stamina to. en~ure 1~tent10nally ~nfhcted distress on the job. Their best protecuon 1s the.lr .own emotional mettle.
In the courts' view, learning to accept abuse 1s necessary becaus: personal liberty and good mental health require th~t emploY.~!s, hke all
individuals, have the "freedom to get mad or be 1mpohte.
Furthermore a certain amount of rudeness simply has to be tolerated.
"[I]n~ivility is so pervasive in our society that it is inappropriate for t~e
law to attempt to provide a remedy for it in every instance.: . : Pubhc
adjudication of common irritations and arguments would d1gmfy most
77. fd. at 138, 637 P.2d at 131; see also Bodewig v. K-Mart, Inc., 54 Or. App. 480. 486,
635 P.2d 657, 661 (1981).
.
78. 101 Ill. App. 3d 75, 427 N.E.2d 829 (1981).
79. fd. at 79, 427 N'.E.2d at 832 (quoting Palmateer v. Internauonal Harvester Co., 85
Ill. 2d 124, 129, 421 N.E.2d 876, 878 (1981)). See also Contreras v. Crown Zellerbach Corp.,
88 Wash. 2d 735, 741, 565 P.2d 1173, 1176-77 (1977) (employee "not .free to leave but
[forced to) remain in physical proximity to others who continually make raCial slurs and comments" has cause of action).
.
80. See generally Kennedy, Distributive and Patemalis~ic Motives in Contract and Tort Law, wtth
Special Reference to Compulsory Terms and Unequal Bargammg Power, 41 Mo. L. REv. 563, 614-24
(1982).
81. Hall v. May Dep't Stores, 292 Or. 131, 141-42,637 P.2d 126, 132-33; s~e also_Bradshaw v. General Motors Corp., 805 F.2d 110 (3d Cir. 1986) (~mployfll;ent relat10nshp n?l
special like that between landlord and tenant or parent and ch1ld); Aqumo v. Somm~r Ma!d
Creamery. Inc., 657 F. Supp. 208 (E.D. Pa. 1987) (nothing about the employment relauonshtp
justifies relaxation of the outrageousness standard).
83. Givelber, supra note 23, at 57.
316
16
STANFORD LAW REVIEW
[Vol. 41:1
disputes far beyond their social importance. " 84 It is best to leave the
"minor annoyances" that are a part of "the field of bad manners" to
"instruments of social control other than the law."85
In order to recover under Section 46, the plaintiff must show that
the extent of her or his harm is exceptional.
The tort of outrage was not developed to provide a person with a rem~dy ~or the trivia~ emotional.distresses that are common to each person
m. ht~ every~ay hfe. Such distress is the price of living among people.
[cttauon om~tted] ... Thus, in order to prevent the tort of outrage
from becommg a panacea for all of life's ills, recovery must be limited
to distress that is severe. 86
In the words of the Restatement, "(t]he law intervenes only where the
distress inflicted is so severe that no reasonable man could be expected
to endure it. "87
The severe harm requirement presents formidable obstacles to recovery. As one court indicated, "(i]f the claimed distress is of the type
that people commonly encounter and endure in their lives, the claim
should not even be submitted to the jury."88 The result of this reasoning is that the .more pervasive the form of abuse, the more ordinary it is,
and the more tt must be tolerated. The humiliation and embarrassment
endure~ by the man_r who are disciplined or dismissed simply will not
be constdered suffiCiently egregious to warrant relief.89 Furthermore,
the injury of the plaintiff who survives without seeking treatment by
doctors or psychiatrists and gets on with her or his life may not satisfy
the standard. 90 If the employee reasonably suffers more than normal
psyc~ic ~arm be~au~e of a pre-existing condition, she or he may be
stymted m estabhshmg a causal connection between even a part of it
and the employer's abuse. 91 Finally, the employee whose suffering ex84. /d.
85. Magruder, Mental and Emotional Disturbmzces in the Law of Torts 49 HARV L REV I 033
1035 (1936).
'
. .
.
'
86. U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1101 (Ala. Civ. App. 1982).
87. RESTATEMENT (SECOND) OF TORTS 46 comment j.
88. Cafferty v. Garcia's of Scottsdale, Inc .. 375 N.W.2d 850,853 (Minn. Ct. App. 1985):
su ?/so Polk v. _Yellow Freight Systems, 801 F.2d 190, 196 (6th Cir. 1986) (being offended,
crymg, and gomg to church more are consistent with common reactions to "an unhappy or
unpleasant work situation": not evidence of severe distress).
89. See, e.g., Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371,379 (Minn. Ct.
App. 1984).
See George v. Hilaire Farm Nursing Home, 622 F. Supp. 1349 (S.D.N.Y. 1985);
Momodts v. Cook, 64 Md. App. I, 494 A.2d 212 (1985): Leese v. Baltimore County, 64 Md.
App. 442,497 A.2d 159 (1985): Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428 (Minn.
1983); Evrard v.Jacobson, 117 Wis. 2d 69." 342 N.W.2d 788 (Ct. App. 1983).
91. Set, e.g.: Green v. A~erican Broadcasting Cos., 647 F. Supp. 1359, 1363-64 (D.D.C.
1986); U.S.A. Otl, Inc. v. Smtth, 415 So. 2d ~098, 1101 (Ala. Civ. App. 1982): Harris v.Jones,
281 Md. 560, 380 A.2~ 611 ( 1977); see also Gtvelber, !upra note 23, at 49 (the suffering attribut~ble. to th~ e~ployer m sue~ cases rna~ not be constdered severe). The employer's or supervtsor s ?bhgat10ns _may b~ mcreased tf she or he knows that the employee "is peculiarly
~us~epttble to emotiOnal dtstress, by reason of some physical or mental condition or peculiartty. RESTATEMENT (SECOND) OF ToRTS 46 comment f. See, e.g., Priest v. Rotary, 634 F.
?O ..
317
November 1988]
EMPLOYER ABUSE
17
ceeds that which the hypothetical reasonable person would incur w~ll be
adjudged maladjusted or supersensitive and denied a recovery. 92 The
psychological frailty of such a person may even be advanced as the explanation for the supervisor's behavior.93
Moniodis v. Cook 94 illustrates how anomalous the results justified by
the severe harm requirement can be. Plaintiff Cook was one of four
employees required to submit to illegal polygraph testing by their employer Rite-Aid, a drugstore chain. 95 A jury _found .tli.at all four had
been the victims of intentionally inflicted emotiOnal dtst'ress, but on appeal the court concluded that only Cook's claim should have survived
defendants' motions for a directed verdict because only she suffered
severe emotional distress. 96 Plaintiff Torres, for example, told her absent husband in letters that "she was going through the worst times of
her life during the period when Rite-Aid was forcing her out," yet she
managed "by herself an entire household includin~ several childr~n
and her father-in-law, as well as tend[ ed] to renovatiOns to the famtly
home." Ms. Cook, by contrast, was so "deeply disturbed" .by-~er employer's conduct that she cried, w~u?g her h~r:ds, took medtcattOn, and
slept most of the time. A pre-extstmg condttton worsened. He~ relatives did the housework and she became a recluse. The court dtd not
find her reaction unreasonable; in fact, her reaction "was in part attributable to her laudable (though in retrospect misplaced) devotic:>n ~o
Rit,e-Aid. Further, the jury properly may have inferred that Mqmodts,
Rite-Aid's agent, was aware of her dedication.wh~n he chose the working conditions that would cause her to leave." 97
Notwithstanding Moniodis, the law will not generally prote~t workers
who are so unquestioning and obedient that they court psychtc collap.se
if they are abused. Although Moniodis penalizes the worker who dtsplayed greater resourcefulness and adaptability, her resilience_ was of
the sort the law generally seeks to encourage through the reqmrement
that the distress experienced be both severe and reasonable .. The cou~t
in Moniodis seems torn between the need to encourage-functiOnal fortitude and the contradictory desire to compensate those individuals who
are truly injured.
Contentious assertiveness and counteraggression are clearly not
preferred reactions. Plaintiffs who immediately replied to their superviSupp. 571, 582-83 (N.D. Cal. 1986): Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312,
315-17 (1984).
92. RESTATEMENT (SECOND) OF TORTS 46 commentj; see, t.g., Cafferty, 375 N.W.2d,at
853-54.
93. Set, e.g., Continental Casualty Co. v. Mirabile, 449 A.2d 1176, 1180, 1187 (Md. Ct.
Spec. App. 1982).
94. 64 Md. App. I, 494 A.2d 212 (1985).
95. /d. at 6-,494 A.2d at 214.
96. /d. at 15-16, 494 A.2d at 219.
97. !d. at 16-17,494 A.2d at 220.
318
18
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Critical
[Vol. 41:1
sors' abuse did_ not fare well in their subsequent tort actions.9s For
exampl~, ~cashier wh~ was a_ccused by her employer's security supervi~or of gvmg unauthonzed discounts became angry and hysterical durmg the course of a polygraph session, and she responded with "strong
language. " 99 In denying her claim the court concluded that her "language and tone of voice were at least as bellicose and lacking in delicacy
as [the supervisor's]." 100 !t appears that the law encourages employees
to a~opt a s~ance of emotiOnal detachment from their jobs and the supervisory mistreatment they may incur.
D.
Conventional Wisdom and Unconventional Warfare in The Workplace
The gist. of the story the courts tell about abuse in the workplace can
be summan~ed as .follows: Only the extraordinary, the excessive, and
t?e nearly bizarre m the way of supervisory intimidation and humiliation warrant judicial relief through the tort of intentional infliction of
emotional distress. All other forms of supervisory conduct that cause
work~rs to experience emotional harm are more or less "trivial" in the
termmology of the Restatement of Torts. The very ordinariness of such
con~uct and t.he ~biq':lity of the experience of pain at the hands of supervisors ~re JUStificatiOn enough for the law's refusal to intervene. At
t~e same time, the genesis of the problem makes it largely inescapable.
Little can be done about the vagaries of human nature. Moreover the
efficient .operatio~ of the workplace depends on employers ha~ing
broad prlVIle~es With regard to discipline and control of the work force.
Thus . abuse Is a predicament that is not susceptible to, let alone demandmg of, a more thoroughgoing legal remedy.
Rather . the solution lies principally in individual workers shrugging
off pet~y msults. Worker self-reliance and stamina are repeatedly
tou~e.d m th~ outrage cases. <:ourts see toughness and strength as such
positive attnbutes th~t they SI~p.ly a~sume that the capacity to tolerate
abuse, and the propnety of d1shmg It out, vary with the nature of the
work, the workplace, and the characteristics of the workers. Males and
b.lue-collar workers, for example, may be subjected to harsher superviSIOn than femal~s .or ~hite-collar workers because of the acceptability of
sex ~nd clas.s d1stmct10ns and the implications of group pride that underlie the disparate treatment.
In_ othe~ respects, howeve.r, self-assertiveness and collective perspectives among workers are discouraged. For example, just as the employers themselves d~nigrate whistleblowers and employees expressing
prefere.nces as. to assignments, the opinions too seem to discourage a
workers affective engagement with her or his work. Furthermore, as
. 98 .. ~ee, e.g., ~fcKinney v. K-Man Corp . 649 F. Supp. 1217 (S.D. W.Va. 1986); Brid es v
Wmn-D1x1e Atlam~, Inc., 176 Ga. App. 227, 335 S.E.2d 445 (1985); Hogan v. Forsyth Joun~
try Club Co., 79 N.C. App. 483, 340 S.E.2d 116, 123 ( 1986)
99. Bridges, 176 Ga. App. at 228, 335 S.E.2d at 446.
.
100. /d. at 231, 335 S.E.2d at 448.
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Studies
EMPLOYER ABUSE
19
Hogan v. Forsyth Country Club 101 and Moniodis v. Cook 1_02 illustrate, the
distinction between the outrageous and the mundane m the way of supervision and between the severe and the mild in the way of emotio_nal
reaction leads to anomalous legal results, and apparently contradicts
the experiences of workers who view their plight as a common ~n~.
Furthermore, the cases give little indication of how employees as mdividuals are supposed to achieve and maintain emotional distance and
passivity.
.
.
.
While the legal community customanly thmks about the Impact of
the law on workers and of workers on the law in vague and global
terms, such an analysis ignores the role that real, ord~nary working people play in perpetuating and attacking abuse on the JOb. Where do the
workers I 'know fit into the courts' ideal of workplace rappro.chement?
"Labor-management conflict" is too abstract and generic a term to provide a full and nuanced description of what occurs on the shopfloors
and in the offices where abuse is actually meted out and experienced.
Although the law may structure the_ employm~~t re~ationship and help
to contain worker dissatisfaction with superviSion, It does not control
life in the workplace in a static and absolute way. Submission, talking
back, and bringing a civil suit do/ not exhaust the arsenal of responses
available to unorganized workers.
Workers are not a monolith, united in interest without regard to
coior of collar or color of skin. Neither they nor their bosses are mere
tools instrumentally driven to fulfill assigned roles in a capitalist economy. Crass economic concerns do not dictate their perceptions of and
03
reactions to abuse any more than they explain the legal story.l Furthermore, sweeping pronouncements of workers'. interests are of qu~s
tionable authenticity. If workers are responsible agents of social
change and not simply stick figures driven by n_ecessity or com~anded
by elites, a detailed analysis is required to explam both how _thei_r op~o
sition is organized and how their legally sanctioned oppres~10n IS mamtained.I04 Consideration must be given to the actual consciOusness ~nd
behavior of workers in the face of abuse. Only after such an exammation will it be possible to speculate about the impact law and other
sources of ideology and legitimated coercion have on what workers
think and do, and vice versa.
There are many versions of the workers' story of abuse. T?e next
section provides an elaboration of one of them. It shows how m some
work environments the legitimating impact of the more or less formal
conventional wisdom is mediated by informal practices and vernacular
discourse and how, despite the economic necessity that keeps some
101. Su notes 53-60 supra and accompanying text.
103. See generally Gordon, Critical Legal Histories, 36 STAN. L. REV. 57 (1984).
104. H. GUTMAN, PoWER AND CULTURE: EssAYS ON THE AMERICAN WORKING CLASS 34445 (1987).
320
~-~--------------------------
Critical
20
STANFORD LAW REVIEW
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workers tied to badjobs with bad supervisors, mistreatment is met with

local resistance.
II.
AUTHORITATIVE ABUSE FROM THE WORKERS' PERSPECTIVE
Workers' opinions about supervisory abuse will not be found in formal manifestos or treatises. Rather, they surface in ethnographic studies by sociologists and anthropologists, as well as in fiction, popular
books employing interview techniques, and newspaper and magazine
accounts. This literature portrays ordinary people responding to and
coping with emotionally painful, degrading, and insulting working conditions and supervision as a matter of everyday life.
The people who are the particular focus of attention here, as indicated in the introduction, are black and Latino women and men and
white women, all of whom hold low-paying, low-status, unskilled, or
low-skilled jobs. These workers theoretically have the least to gain
from adhering to the prevailing wisdom regarding authoritative abuse
but, perhaps, the most to lose from defiance of its message. Their understanding of and response to abuse stand in opposition to the outlook of the law and suggest why anyone interested in justice should be
less tolerant of supervisory abuse than the courts presently are.
The minority and female workers discussed below rely on rich and
complex, but informal, cultural devices to critique the excesses of supervisory control as well as to insulate themselves from its insults and
indignities. Their words and actions (as recounted by social scientists
and journalists) are the product of their cultures and represent the
nearest approximation of a nonelitist view of what oppression on the
job is and what greater freedom would entail. The stories of their
struggles on the job also explain how "consent" to coercive supervision
is achieved through a process that appears to allow the workers a measure of dissent and choice, but ultimately leads them to entrap themselves.105 More importantly, they reveal that workers in even the
lowest tiers of the labor force nonetheless remain resisters, if not guerrilla fighters, in their own cause.
A.
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321
Studies
EMPLOYER ABUSE
21
workers from its impact."I06 "Work culture" h~s a critical component

that is manifested in concrete mundane expenence~ that unself-con. 1 "act to expose and cast into doubt the workmgs of the larger
SCIOUS y
.
h'
f h
h le
ideologies, institutions and structural relatiOns tps o t e w o
society." 107
In addition, minority and female workers in pa_rticular rely on thetr

cultural norms in accommodating and reststmg the demands and
~~~~~se effects of their jobs. The sexual division of_lab?r encourag~s
both females and males to create a sense of group ~ohdanty and supen.
th which to absorb and challenge the stnctures of wor~place
onty Wl
1 t d l th the
authority. The cultural devices that mmontt~s emp oy Q ea WI
racism and ethnocentricity that permeate soc1ety allow t?e~ to endure
low-paying, low-status work. Constantly co1_1fron_te~ wtth _ms~lts and
abuse that are the product of whit~ sup~em~c~st thm~m~, ~monty peole have aeveloped mechanisms for mamtan~mg th~tr ~tgmty and figh,tfng for their self-respect without endangerm~ thetr JObs .. The valu~s
and activities of these overlapping sexual, ractal, and ethmc _c~mmum
ties provide alternative "localized" standards for de~erm~~mg s~lf
worth and the worth of one's work.1os _Group culture s cnttque, hke
that of work culture, is criticism affirmatively hved_ out! not elaborated
in grand theories or systematically formulated radtcaltdeology. .
Workers would agree with the law's assessment that supervtsory
abuse is an ordinary, everyday occurrence in the workplace. They
would, however, part company with the courts and commentat?rs wh~~
the latter argue that it is so mundane and commonplace that It sho~
escape severe censure. On the contrary, from the w?rkers' ~erspecuve,
the frequency with which they encounter supervisory mistreatment
means that it cannot be warranted or justified in the way the law and the
conventional wisdom assert.
.
Among workers, there is widespread condemnation _o_f close,. coercive supervision. It is not acceptable behavior. The hos~thty to thts sort
of abusive authority is manifested in the words and actions of workers
109
performing disparate jobs, in disparate workplaces.
~ t~na ~ct~~~
worker interviewed in Barbara Garson's book All The Lwe ong ay h
elaborated on the techniques used by the line ladies trying to meet t e
The Cultural Critique of Workplace Supervision
The informal practices and values that allow minority and female
workers to tolerate the emotional trauma of workplace mistreatment
have two sources. One is work life itself, while the second is the responses of creative human beings to pervasive group oppression.
For many low-status and blue-collar workers (white males included),
the collective activities, rituals, and informal shared values that are sustained in the workplace create a sphere of autonomous action "which
mediates the formal authority structure of the workplace and distances
105. Set P. WILLIS, supra note 19, at 173-74.
106 Benson '"Th~ Clerking Sisterhood": Rationalization and tM Work Culture of Sale.sw~~f' bn
American. Departm~l Stores, 1890-1960, in WoRKER~' STRUGGLES, PAST AND PRESENT
'
Greened. 1983); su also S. WESTWOOD, Au. DAY, f.vERY DAY 89 {1984).
107. P. WIU.IS, supra note 19, at 125.
E AND IDENTITY IN A CHI
108. R. HOROWITZ, HoNOR AND THE AMERICAN DREAM: CULTUR
CANO COMMUNITY 51 {1983).

L
W KING CLASS FAMILY 168 {1976)
109. Set, e.g., L. RUBIN, WoRLDS OF PAIN: IFE IN Til~ OR
r shoulder); S. TERKEL,
{former file clerk complains someone was always lookmg over he . . s overseein and
WoRKING 202-03 {1971) {bus driver c~mplains ~~ ~on~tant and surre~~~~~uORK AND CH~CANO
of discipline at the "whims of the supenntendent ), P. ZkAVELJ.A:~.'i~:~ose unfair discriminaFAMILIES 104-05, 112-17 {1987) {Chicana cannery wor ers en IC
'
tory, and disrespectful supervision).
110. B. GARSON, AU. THE LIVELONG DAY {1975).
322
22
STANFORD LAW REVIEW
Critical
[Vol. 41:1
day's production quotas. She said that "they figure out who they can
push-the ones who_ really need the job. And believe me they push
the~. They're on their backs .... " She continued, "Now some women
can t work any faster no matter how much they're pushed. They get
upset. You ca!l see t?eir ~yes tearing. Others speed up and those are
the ones the hne ladies will go for." 111 As discipline for not working
fast enough, workers were sent to other lines or made to count bones.
0~ such treatment, the worker said that "you feel like a kid in school
ben~g stepped
out by the monitor" and "[e]veryone knows you're being
112
pumshed."
Studs Terkel's Working 113 describes a black woman employe~ as a telephone solicitor for a newspaper who disliked the way
the chief supervisor treated the women under his command. She said
he was a "bully, a gorilla of a man" who would stomp, holler, harass,
and threaten _to replace the workers with the bums on the street.II4 A
black domest~c worker also interviewed by Terkel expressed her sentiments regardmg close supervision as follows:
;he younger women, they don't pay you too much attention. Most of
em work. The older women, they behind you, wiping. I don't like
nobody checkin' behind me. When you go to work, they want to show
you how to clean. That really gets me, somebody showin' me how to
clean. I been doin' it all my life. They come and get the rag and show
you how to do it. (Laughs.) I stand there, look at 'em. Lotta times I
ask her, "You finished?"ll5
.
:'-s the comments of the domestic worker indicate, abuse can be ob-
Jectw~able to w~r~ers because it does not reflect objective assessments

of the1r productivity. Whereas the law assumes that abuse is utilized
because work~rs are not contributing to the enterprise as they should
be,. workers VIew abuse as a calculated devaluation of themselves and
their work. For example, the clerical employees interviewed by
~oberta Gotdberg for her book Organizing Women Office Workers 116 obJected to the dose supervision of their work and time away from their
desks ~ecause it indicated that th~y were not trusted." 7 They also
compla_n~ed about l~w pay because It meant that their work was conside~ed ~.n~~~~ and ~mmpo:,tant. 118 They resented the demeaning terms
(hke . girl ~nd honey ) others used in referring to them.ll9 They
espeC!~lly objected to being asked to do "menial" domestic chores because It meant that their employers did not take them seriously with
III. ld. at 38.
112.
113.
114.
115.
116.
117.
118.
119.
/d.
S. TERKEL, supra note 109.

!d. at 94-95.
!d. at 117.
R. GOLDBERG, ORGANIZING WOMEN OFFICE WORKERS (1983).

!d. at 74.
!d. at 72.
!d. at 73.
November 1988]
323
Studies
EMPLOYER ABUSE
23
. d to penorm.
r
120
regard to the tasks they were h 1re
In the workers' view, employers deny them due regard and control
over their work lives in order to belittle their worth as productive persons and reinforce their economic dependency on the employers. A
supervisor in a shower curtain factory who points to his supervisees and
says "Look, there are the horses working" is ~reating them as mere laboring objects, and the worker who hears this .comment naturally ~~
sents it. I2I In some workplaces, the productiOn quota.s or ~xpl~cit
commands so regulate workers' time that ~h~y must rest.nct their _tnps
to the bathroom if they want to keep their JObs or avmd sup~rvisory
disapprovai.I22 There are myriad ways that employe~s can r:~md e~
ployees of their vulnerability and dete~ them. from JeopardiZI?g thc::Ir
already inferior status through collective resistance. !he Wisconsm
Education Association Insurance Trust, for example, tned (unsuccessfully) a number of techniques to quell union fervor among it~ clerical
staff, including "direct[ing] the union employees to use the stde door
and the stairway, reserving the front door and the elev~tor for_management " separating the workers with carrels, monitonng their phone
. personal .fa mi'1Y cnses.
.
123
calls, and denying them leave to deal with
The workers did not accept the propriety of any of this conduct.
Minority and female employees have reason to s_usp~ct tha.t the disparagement and mistreatmen_t the_y receive on the JOb I~ motivated by
racial prejudice and sexist ammosity, not merely by a concern ~or productivity and profits or by individualized assessments o_f ment. The
young black men investigated by Elijah Anderson for h1s essay, Some
Obseroations of Black Youth Employment,I 24 in~i~ated t~at they were esp:cially oppressed by the distrust and suspiCion wh1ch pervaded their
working environments. Their supervi~ors and ~o-workers watched
them closely to see if they displayed the madequaCies of the blacks who
. 12s An d erson
had preceded them and to prevent them from steaI mg.
reports that
it is not uncommon for many black workers to be treated as outsi?ers
... even though they have been working on the job for a long_ ume.
Among black workers who face such problems on a common JOb, a
standing phrase is the "can I help you?" routine .... "When a black
120. Jd. at 71; see also E. CASSEDY & K. NusSBAUM, 9 TO 5: THE WoRKING WOMAN's G~m:
To OFFICE SURVIVAL 25-39 (1983). In many workplaces the performance of personal servces
is considered an integral part of the female secretarial role. Set, e.g., R. KANTER, M_EN ANf
WOMEN OF THE CoRPOR.HION 79-80 ( 1977). Because her duties can extend f~om makmg co
fee to running personal errands and providing emotional support, the execuuve secretary has
been dubbed "the office wife ... !d. at !l9-91.
121. B. STOLZ, STILL STRUGGLING 107 (1985)..
.
122. Junkerman, Nissal!, Termesstt, THE PROGRESSIVE, June 1987, at 20; Schoonmaker,
lliaring Duwnthr Workm, IN THESt: TIMEs, july 10-23, 1985, at 10. ,.
.
.
.
123. Costello, "Ilia 're Jl'orth It! .. Work Cultun1 and Conjlirt a/the lhsronsm Eduratzon Assoeta
lion lnsuranu TilLS/, II FEMINIST STU IllES 497, 501-02 ( 1985).
124. Anderson, l'outh Employment, supra note 3.
125. !d. at 73-7 5.
324
24
Critical
STANFORD LAW REVIEW
[Vol. 41:1
~v~~ a~ ~ork, some white employee is ready with 'can I help you''"
e ac s mterpret this question as a "nice" way of saying "wh t b. .
?ess do you have here?" ... It appears to be a device of someo~e ;~:
IS ve~y concerned about outsiders committing a crime on th~ work
premises. To be black and young is to be suspect. Black youth under~~:nt th;,~uanc~ here, and they joke about such slights during lunch or
def:n:~ tel~~go .~~~;oatrhetr t?g:,therd on the jo_b f~r purposes of social
. '
s ones an commumng m wh t h
hostde social and work environment.126
a t ey see as a
The exclusionary treatment about which these workers c
. .
couutrrase, not thhe sort of overt discriminatory behavior
O
ge reac es.
Consider as well the work experienc
f h b
.
secretaries described by Karen Brodkin S~~k~ ~~' eT~ack h~spltal w~rd
were the victims of the compound interactio~
e. war se_cretanes
th~~f~:I7o~~ ~~
~~~u~~-i~~a~~~;~t:~obs ~tt. the ho~pihtal were s~::e;~:~ ~;~~7:; r:~~
further se
posi Ions, w
lC
were allocated to women were
secretarie;r;!;~ew:.r rae~ 'lthehhigher paid adm~nistrative and m~dical

d
I e, w I e t e ward secretanes who were two a
gra es beneath t~e other. secretaries, were predominate! black:.2~
~;;h~::~::l:s:~:~~~s
c~~~d:~atedb
patiecnt care, inte~ated t~ activities
ere Yperwnned functiOns far bey d th

d
.
re~or h~am~na?ce tasks specified in their job descriptions.I30 ~:t de~
:::;~e t eir ~ e~~I~eness and their shared consciousness that the ke t

~he ward secretaries felt that both their positi~ns
th gs movi~g,
e occupatiOnal hierarchy and their abilities were de
d
n
B
f h
meane .
ecause o t eir race, low status, and unreco nized coordi
.
~ole, the ward secretaries were particularly vulne;able to abusen~;~o;
actors, nurses, and supervisors.I32 Sacks quotes the views of
f
the secretaries
as
being
representative
of
their
ceel
.
onle
o
1
mgs m genera :
11
The1r attitudes are really
~.:metimes I just walk.awa/~~~n~~a~~~ b~~~ ~=~~dt~t.c~~~ta~oa~~~~:
at alr~~~~nl;:eouv~~t t speak tom~ without yelling, don't speak tom~
'
y.
~bout somethmg the ward secretaries don't k
a bout. It s really the b1g ones th h k
.
now
shit What th ,
. .
at t m you re, excuse the expression
.
. eyre saymg IS that they think you're ignorant and the'
never apologize when they accuse you wrongly. They don'tt'
I
y
your name; they call us 'hev you.' Ver few sa '
ry ~o ~am
takes everything to keep thi; job.t33
y
. y good mormng. It
126. ld. at 75.

127 Sacks, Computm. lrard Secrrtaries
BLES ARE GOING TO HA\'E TROUBLE WITH
128. /d.
129.
130.
131.
132.
133.
at
at
al
al
/d. at
!d.
ld.
ld.
ld.
, d rr /k
M:J7;
(K~ s'~"'
in
acks & D. R{my eds. 191H).
Ill
173-7-t.
174. 176, 178.
178. 18-t.
180.
181.
a Snutltrm l!fi.IJJI'tal,
!\fy TROll
November 1988]
325
Studies
EMPLOYER ABUSE
25
Abuse was a way of pulling institutional and racial rank on the secretaries. "For some doctors, tantrums and loud abuse were an automatic
response to anything other than instant gratification; they acted as
though they had a right to yell without regard for anyone's feelings and
felt no obligation to apologize when they were wrong."I 34 In other
words, those occupying superior status in the hospital viewed abuse of
subordinates as a prerogative. The ward secretaries also felt that racism accounted for their mistreatment (as well as the disrespect and
negligent care accorded black patients).I 35 The institutional organization of the hospital staff reinforced the racism. Sacks asserts that "[i]t is
not easy to distinguish abuse generated by snobbish attitudes from
abuse generated by racist attitudes. But the systematic underrating of a
complex job by hospital administration could only reinforce racist ideas
about the abilities of black women."t36
In sum, although the law and the conventional wisdom see something wropg with the workers that justifies their abuse, the workers
know that it is the employers, supervisors, and bosses who are wrong,
and on two counts. They are 'wrong in using slurs, close scrutiny, and
onerous or insulting assignments to push workers to work harder, demand less, and know their place. And they are wrong again if they
thin!< that these tactics are wholly effective. The rude, insensitive behavior the courts condone is the very sort of behavior the workers criticize by their words and their actions. The melding of racism, sexism,
class bias, and occupational elitism generates a critique that does not
finely differentiate among the possible sources of worker. oppression.
B.
The Mechanisms of Worker Resistance
Although the workers by and large conform to the dictates of abusive at,nhority, they do not necessarily feel compelled to do so either
because they accept its legitimacy or because there seem to be no alternatives. Relying on cultural mechanisms that allow them to deflect
some of the pain and to resist some of the abuse, they actively turn
compliance with orders into a matter of their own choite. Work and
group culture stand in opposition to abusive authority by creating alternative standards for judging performancet:n and the status and importance of jobs. 138 As redefined, the significance of their work vindicates
134. /d.
135. /d. at 181-82.
136. ld. 185.
137. For example, where Louise Lamphere worked as a sleeve sewer, management prop
aganda about the money one could make under the piece rate pay system was met with doses
of cynicism. Lamphere, Ou tht Shop Floor: .\lulti-Etlutlr l'mty AKaimt /he Congloml'Tale, in Mv
TROUBLES ARE GOING TO HAVE TROUBLE WITII Mt:, mpm note 127, at 247, 253-55. Moreover,
the workers enforced informal rules for distributing the work equitably among themselves
~~cording to garment size. /d. al 259-60. They were !hereby able to reduce some of the
ndividual competitiveness that the pay syslem enrouraged.
138. Dirl)' ll'ork, Ract and Srlf-Estffm is an <'thnographi< study by Edward Walsh of black
326
26
Critical
STANFORD LAW REVIEW
[Vol. 41:1
the workers' acquiescence. Moreover, their infonnal culture supports a

number of resistance tactics that limit the effectiveness of supervisory
coercion. The devices employees use to challenge authority range
39
from shirking
off1 to making a game ofwork 140 to sabotage of various
41
sorts.l
Although the law might not approve of many of these practices, they are significant factors in sustaining worker endurance of insulting supervision and working conditions.
For example, the female office workers about whom Roberta
Goldberg writes were able to recapture a measure of self-esteem and
pride through various infonnal means. 142 Although their bosses
viewed their work as requiring little skill or intelligence, 143 the women
thought of themselves as being knowledgeable and as performing functions essential to the operation of the office. 144 They also opposed
their bosses in various ways. Since the jobs did not encourage a lifetime commitment, the women did not feel obliged to act as if they did.
garbagemen in Ann Arbor, Michigan. E. WALSH, DtRlY WORK, RAcE, AND SELF-ESTEEM
(1975). Despite the racist structures which kept black "G-Men" in low-status jobs, id. at 18-19,
they found internally-defined supports for their self-esteem within their work culture. ld. at
34. Indeed, many concluded that their jobs were relatively good ones for black men in a racist
society. The jobs offered good pay and fringe benefits, short work days, and freedom from
excessive supervision. !d. at 23-24. The workers achieved status within the group, which was
more significant than status in the larger society, through speed and cleanliness, sharp eyes
for at
salvageable
refuse, rhetorical jousting, and critical assessment of the public they served.
ld.
33-42.
139. See S. TERKEL, supra note 109, at 350-51 (secretary feigns incompetence at the
typewriter).
140. Work games are an important source of workplace "freedom." They tend to emphasize choice and de-emphasize compulsion. "On the one hand, they provide a way of absorbing hostility and frustration, diffusing conflict and aggression, and in general facilitating
'adjustment to work' [footnote omitted]. On the other hand, they tend to undermine managerial objectives,
TION
37 {1985).reduce productivity, and waste time." M. BURAWOY, THE Pouncs OF PRoDucTypists situated in pools play racing and synchronization games to break the monotony.
B. GARSON, supra note 110, at 154-56. The jewelry workers with whom Nina Shapiro-Peri
worked hummed in unison and threw jewelry at one another (an activity that reflected the
women's assessment of their employer's product). Shapiro-Peri. Re.ristance Strategies: The Routine Struggle for Bread and Roses, in Mv TROUBLES ARE GOING TO HAVE TROUBLE WITII MF., supra
note 127, at 193, 200. Machine operatives paid on a piece rate basis commonly make a game
out of reaching or exceeding their production quotas (the number of pieces they are expected
to produce in a fixed amount of time). See, e.g., M. BURAWOY, MANUFACTURING CoNSENT 46-73
( 1979). Whether workers hustle or dawdle depends on the case with which they can beat the
clock and cam bonus or incentive pay for going over the quota. /d. at 57; Shapiro- Perl, supra,
at 198-99. Through pacing, the workers seem to be regulating their own output. Work
groups may even put a ceiling on "overproduction" to prevent increases in the quotas. M.
BURAWOY, MANUFACTURING CONSF.NT, supra, at 57-58. Employers arc, of course,
to these
strategies and a<ljust the rates, but leave enough uncertainty about beating the rate to keep
workers in the game. /d. at 87-92.
wi.~c
On the other hand, of course, the employer's techniques and even the workers' games
also produce differences in status among workers and internalization of norms that facilitate
worker exploitation. Srr id. at 64-65.
141. See S. TERKEL, supra note I 09, at 34 (hotel switchboard operator answers with the
name of employer's competitor).
142. SuR. GoLDRERG, supra note 116.
143. /d. at 73.
144. /d. at 74.
November 1988]
327
Studies
EMPLOYER ABUSE
27
..
reciated because they offered vanety and
Temporary p~)SltiOns .were ap~es 145 In addition to the usual resp.onses
the opportumty to skir~ the ru . d conditions (asking for a raise or
to objectionable working te~s dan tion) 146 opposition took the form
increasing one's skills throuJ e ~caboss'~ mail to pick up useful inforof putting salt in coffee, ~ea mg t ~mit the scrutiny of supervisors, and
mation, covering glass wmdo~s towould not work.I47
jamming computers so that t ey
. on the other hand, responded
The black hospital. ward secretane~, or anized fashion. They .were
to their mistreatment m a mor.e ~7:aa, ne~ork of kinship and fnendfortunate in that they were un~~ecial :ctivities like parties and din~ers,
ship that supported not ~m.l~ .
f new employees and an orgamzed
but also the training and lmttatiOn o
148
walkout.
11 . ly because of the strength
. were able to act
thof
at
Ward secretanes
. co ecuvek These were the t1es
their informal work-based so~Ial n~t~o~ s~orth and the worth of the
carried their own understandmgs o t b~lr d with on-the-job training
.
d
d.d s 1 networks com me
work they I oCJa
d'
onscious and collective an prohelped make these understan mg~ ~o risk acting on them.149
vided bonds of trust strong enoug
h t ggle continued as the
lk t however t e s ru
. .
, t usurpation of their trammg
Six years after t h e wa -~u ,
ward secretaries coped With ~a~~g~~~~e (to "ward support"), and the
function attempts to change t elr JO 1 t 150
,
.t' s for advancemen .
d
absence of opportum Ie ..
erson's study pursued yet a thir apThe young men of EliJah And
eillance and oppressive control m
proach_I5l They reacted ~o clo~e surv included poor attitudes and pera more defiant way. Their resistance fi d first) 153 "cussing the boss
formance 152 quitting (if they wer~ n~t reh.
ff:' thereafter if he re' departmg,
.
154 and "nppmg lm wed
o
out" before
155
the employees were o
.
h
h
fused to pay t e wages
'd
to the workplace (sue
t that conduct outs1 ers
b
It should be apparen
ld consider deviant may e a
as the courts deciding outrage cases)lw.out.
terms and conditions of
.
fa'r and exp 01ta 1ve
.
h
l
b a means of defymg aut orreaction to abusive, un I '
employment. Pilferage, for examp e,.can ~t.on Workers resort to pility and checking excessive emp~oyerlimposl ~ns~nsitive supervision and
.
ferage in order to reta rIa te agamst c ose or 1 r and remuneration
enexpress their resentment of the status, powe '
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
155.
/d. at 63.
!d. at 134.
9
!d. at 1.
182 87
See Sacks, sufJra note 127' at
- .
Jd. at 190.
Jd at 187-89.
3
A~derson, l'outh Emplo,vmntt, supra note .
!d. at 75.
!d. at 76.
It/.
!d. at 77.
328
28
STANFORD LAW REVIEW
Critical
[Vol. 41:1
joyed by th~ir sup~riors.I 56 "Ripping off" goods and services frees

wor~ers by mcreasmg their control over the work situation and their
s~lf-Image.I 57 It also adds to their social standing among the family
fihnends, and co-workers with whom they share tales of their exploits and
t e proceeds of the takings. Iss
The: extent to w?ich. pilferage is tolerated depends on the norms
a_nd attitudes operatmg m the particular workplace and within the particular w?rk ~oup. 159 It is_ ~ot u~common for a work group to demand
co~fo~ttr wtth norms leglttmatmg the taking of in-kind wages, to test
a~ soctahze new members in the mandated behavior, and to discipline
t o~e who ~efuse to comply.I60 The work group may also provide protec~1~1_1 agamst
exposure and support for cooperative or coordinated
6
a~tt.vtttes.I I On the othe~ hand, work groups can also effectively in~~btt :~ eft or fo~~s of takmgs that are incompatible with other objecSurpnsmgly perhaps, the responses of supervisors and
esi
emp oyers to ~uch conduct also vary. In some cases, "[s]upervisory
person~el reahze that worker co~p~iance is more likely to be obtained
keepmg a low profile an~ provtdmg workers with unofficial bonuses
m th: form of extra break time and services or merchandise."I63
Pilferage t~us has _an equivocal nature as a means of resistance. On
the one han~, It fun~tiOns in opposition to widespread norms regardin
~~; o~nershtp_ of pnv~te property. In addition, it provides the occasio~
t e exercise of mgenuJty and cleverness and creates solidarity
amon?" work~rs. 0?. the other hand, the informality of pilferage as a
techmque of o~posltwn and resistance may render it compatible with
the employer's mterests. Elijah Anderson reports that in certain workplaces the young black employees he studied were not paid the minimu~ wage on the assumption that they would make up the shortfall by
stealmg.I64
?Y
Af kind of wage-theft system operates, in effect, with the tacit approval

. the employer._ The employer is said to set the youth's wages low
~it~the expectation that the youth will steal a certain amount in mater~a s rom the workplace. In order to make a decent "wage " the y tl
m turn st~als. T_he "self-fulfilling prophecy" is set in U:otion a~~~~~
~mployer s expectations of the youth are met. Open to informal negotiation, unspoken and implicit, the arrangement lends itself to dis0
EMPLOYER ABUSE
29
agreements and fights between employer and employee.I 65
Rather than being a device the workers controlled, pilferage was a tool
manipulated by the employers and as such posed a threat to the workers' job security that could be used against them at any time.
C.
'[,'he
Contradictory Potential of Informal Culture
The ambiguous quality of pilferage is similarly reflected in many of

the informal cultural modes and mores on which low-status minority
an'd female workers rely. The techniques of group and work culture
have a dual potential. They can support either acquiescence and accommodation or resistance and liberation.I 66 Some of the means by
which workers oppose their bosses are inconsistent with their strong
negative critique of abusive authority-they do not bring the message
home to employers and supervisors that abusive conduct is improper
and that it must stop. Clearly, economic and political forces limit the
extent of worker defiance. Workers are also entrapped by the power of
the conventional wisdom, which mutes the thrust of their objections to
mistreatment on the job.
The accommodation that informal cultural defiance can produce is
illustrated by the numerous techniques black workers use to conceal
their true feelings, and to control their employers' access to information which if disclosed might be considered inconsistent with their
subordinate status.I67 These practices are variations on a device known
as "fronting." Fronting enables blacks to respond to racist insults and
abuse with calm, quiescent behavior not expressive of their actual sentiments.I68 Its use may be mandated by compelling reasons like the necessity of keeping one's job. 169 Fronting appears to give black folks a
measure of control over their intercourse with whites. It is an implicit
rejection of white authority disguised as deference. It is a ruse. The
white person is fooled.
Whites do not typically notice when blacks front, since the modeemotionally subdued-is one that whites consider normal, achieve_d as
a matter of course in their cultural development through the habitual
exercise of emotional self-restraint and repression. Consequently they
an; not aware of the conscious effort that blacks mu.st make on a day-to-
156. See Altheide Adler Adle & Altl d Th ,.

AT THE Top D .
'
B '
r
JeJ e,
r .wnrd .l!mmng.rof EmfJ{nJ-rr Tluji in CKIMF
EVIANCE IN USINESS AND TIIF.I'KOFF.SSIONS 90 102-03 (J J J.
& , ))
eds. 1978); R. HOLLINGF.R & T. CLARK, THF.IT IIY ~:MPLC;\.~F~ 7'1-88. 14. .,"-,'.:"(')'~)"';.). oug as
157 See AI h "d
.

_.,,, 0 "
t e1 e, Adler, Adler & Ahhe1de, .<11/JI"fl note 15() ar J 04 l'''l

158. Su id. at 103, 113-14.
'
' -
159. Su id. at 108-19.
I GO. Set id. at 98-99, 100-02.
161. Suid.atl01,113.
162. See id. at 113, 123.
163. !d. at 112.
i.
lf>4. Anderson, l'outh Emplo_rmmt, sufml note 3, ar 77.
November 1988]
329
Studies
165. /d.
166. See C. WEST. supra note 19, at 120 (cultural processes can encompass both hegemonic and counter-hegemonic traits).
167. Judith Rollins. a sociologist, did domestic work herself and interviewed a number
of female domestic workers and female employers of domestics . .J. RoLLINS, BElWEEN W?MEN: DOMESTICS AND TIIEIR [MPLOYF.RS (1985). The domestics reported making phony diSplays of ingratiating deference, id. at 163, lying to satisfy an employer's curi?sity about their
personal li\'es. id. at 165-66, accepting cast-olf personal items that rhey d1~ not want and
promptly discarding them, id. at 190, 194, hiding their home or car ownership from an employer, id. at 196-97. and acting as if thev wt"re not intelligent. id. at 196.
168. T. KocHMAN, BLACK AND WHI'I:E STI'LES tN CoNFLICT 61, 125 (1981).
l!i9. !d. ar 124-25.
1
~
330
30
STANFORD LAW REVIEW
Critical
[Vol. 41:1
day basis to contain their emotions wh

k' .
as a racially hostile environment. 170 en wor mg m what they regard
In addition fronting serves as a criti u
f h
.
characteristic of privileged white cultu;e e.;; t e emotional
~:e; ::o~~~:; n~~e:;:~;ional
~epression
t~ ra~~te~~;'i~i~~?o:h::r~et~~;
response
hand, allows for the ex;~;;r.y rep;essed? Black culture, on the other
that catharsis can produce.'~~on o anger and the emotional harmony
Fronting is part of the
1
h
emotional damage at the ha~~~ :;'::~itt at prot~cts black_ people fr?m
to mask or hide feelings makes th bl ~people m authonty. Choosmg
tional degradation Be t
D ~ ac person less vulnerable to emoconcerned about r~cial ~:: oy _e, a black man who was ambivalently
fi_es as a_ "source of conflict"~~~: r~~~~ c~ltur~~ capitulation, identi0
nment m contem 1
h
. . g
nds great cause for mer.
.P atmg t e ex1stmg codes of etiquette "172 Th
f
o t h e sentiment 1s contempt.
e root
The person . has detached h
If fi
.
it cri_tically, and needs to spen~mss~ ll rom t~e Situation, h~s eva~uated
fendmg or decrying existing conditi:ns.e~otmnal energy either m deupon to use the traditional forms Ifh d e may, or may not, be called
the practice, as at an amusin a.
e oes use t?e fo_rm_s, he plays at
ority And th' . h b
g g me. He feels no mfenonty or superiIS, m t e roadest sens e, IS
the true emancipation of the
.
Negro.l73
Trudier. Harris uses the term "maskin , 174 in
.
.
.
mechamsm as it is employed b black
refen:ng. to this copmg
in representational fiction:
y
emale domestics m real life and
She can bow and scrape and sa . es-um'

.
. .
the circumstances of her exist:n:e in th unul_ eternity ~~she separates
her conception of herself If
. .e white woman s house from
believes in that reality tl~en :~e _mamt~I.ns her cultural reference and
will have less traumati~ effect . ~ .'}~~sltlons that are made upon her
Fronting represents a challen
h'
.
tential to be the basis of tra c ge t? w It~ authorny and has the pur
.
.
nStOrmatiVe reSIStance be

p ICit cnuque of, and a self-aware res

c~use ll Is an 1mprompts it. It is also a cultural me :o~se loh the abusive conduct that
Lain without white interf<erence
c amslm t at blacks create and susor contro.
As a form of resistance and prot .
h
.
tions. The submissiveness th l i e~twn, owevcr, frontmg has limitaa rontmg presents is, to outward appcar170. /d. at 125.
171. /d.
. 17 2. B. Don.E, TilE ETIQ.ur.rrE 0 .- R . R . .
CONTROL 168 (1937).
ACE F.I.ArtONS IN TilE SOt 1TII: A STUIJY IN SOCIAl.
173. /d.
174. T. HARRIS FROM MAMMIES
M
TllRF. 16 (1982).
TO II.ITANTS; DOMF:STICS IN BI.ACK AMF:RIC:AN J.rrt:RA175. /d.; sn also J. Roi.I.INS, supra note 167, at J.l6.
1988]
331
Studies
EMPLOYER ABUSE
31
ances, no different from that which acquiescence would produce.

Moreover, given the exaggerated responses of whites to black self-assertiveness and the consequences that flow from black displays of ag. gression and anger, 176 blacks may not be exercising as much free
choice in fronting as they may think they are. The antiauthoritarian
aspects of fronting would produce more effective resistance if blacks
could directly voice their anger and indignation at white abuse to white
people and still keep their jobs.
While fronting keeps blacks silent, broadly disseminated notions of
sex roles affect the seemingly oppositional behavior of workers of both
sexes (and all races and ethnicities) in a way that makes class distinctions and the division of labor acceptable. Studies have shown that women factory operatives emphasize various aspects of the female role in
family life in creating emotional and temporal space for themselves at
work. ' 77 The jobs of some of these workers exploit characteristics that
are associated with being a housewife and mother. 178 The economic
need to earn a wage fortes women to do such chores in connection with
jobs outside of the home. Yet the similarity between at-home and
outside-the-home duties may make the latter form of exploitation acceptable.'79 For example, the sexual division of labor was found to
produce "contentment" among female workers at a poultry processing
plant:
While many see themselves as doing the messier and more 'difficult
jobs, as compared to the men, they are able to accept that because of
the fact that it is "women's work." Just as a housewife might see her
own responsibilities as being perhaps more demanding and exhausting
than those of her spouse, but accepting such a division of labor as natural, so too do the female workers reconcile themselves to the more demanding, difficult, and seemingly more disagreeable types of work. In
one sense, there is a kind of pride in the fact that "women's work" is
often more difficult and that female workers are more stoic than males
in performing the harder jobs. 180
Similarly, women workers" 'humanize' the workplace ... [by] bringing
family life into the industrial setting." 181 Through birthday parties, bridal and baby showers, retirement parties, the sharing of family picture
albums, and the paying of condolences upon the death of family members, they link work to home. 182
176. T. KocnMAN, supra note 168. at 43-45, 159.
177. See, e.g.. Lamphere. supra note 137, at 256-58; Benson, supra note 106, at I 08-09; S.
WESTWOOD, supra note 106, at 90-97, 111-28.
178. These characteristics arc "service, submission. and the suppression of intellectual
development." L. RUBIN, supra note 109, at 169.
179. /d.
180. Bryant & Perkins, Containing Work Disaffiction: Tht Poultry Processing Worker, in VARIETIES OF WORK 199, 209 {P. Stewart & M. Cantor cds. 1982).
181. Lamphere, supra note 137, at 258.
182. !d. at 256-59.
332
Critical
32
STANFORD LAW REVIEW
[Vol. 41:1
On the positive side it can be said that by experiencing pride in performing valuable but unpleasant jobs that men do not do, the women
are implicitly criticizing their (male) employers' assessment of the
worth of certain kinds of work and advancing an alternative feminine
notion of merit. Moreover, their efforts to connect their domestic and
work lives stand in opposition to a male norm that the public and private spheres should be kept separate. On the other hand, women's reliance on the traditional domestic role of women to make menial work
acceptable does not go very far in opposing employers' efforts to exploit their labor power. 183 These cultural mechanisms are not critical
of the sexual division of labor 184 and furthermore suggest that men in
general and not employers per se are the source of their exploitation as
wage workers. Some working women, then, appear fettered by the prevailing views about women's proper role.
Low-status male workers engage in a comparable process of accommodation. The young men described in Ruth Horowitz's ethnographic
study of life in a Chicano community in Chicago 185 were more explicit
in their opposition to their working conditions and abusive authority,
but they too ultimately accommodated them with the help of male values. The men in the community were bound by a "code of honor"
which governed interpersonal relationships and set the standards for
maintaining their manhood. 186 The "code" distinguished acts of respect and deference from acts of insult, 187 and prescribed what a man
could do to reclaim lost honor. 188 Within this context, the young men
had well-developed notions of what comprised a good job. "[F]reedom
from strict supervision~ was one of the requisites. 189
Independence is consistent with their image of themselves. Moreover,
independence allows them to avoid experiencing lack of"respect, which
can be problematic to a man of honor. Youths are sometimes ~red
after lashing out at a supervisor (either verbally or physically) who has
not demonstrated the proper respect in front of others. Most of the
places they work have no grievance mechanisms. 19
At the same time, good jobs were dirty and required the strength of
183. Westwood considers the emphasis placed on the traditional roles of women in oppositional work culture "collusive." S. WESTWOOD, supra note 106, at 22. 89. Says Westwood,
"this culture fashioned by and for women was a contradictory whole: it resisted management
control and the union hierarchy. but did so by using notions of femininity which colluded with
a subordinate and domesticated version of woman .... " /d. at 88.
184. There are, of course, women workers who object to being required to do blatantly
domestic chores in office and factory settings where their principal tasks are not domestic in
nature. Su, e.g., R. GoLDBERG, supra note 116, at 71; I<:. CASSEDY & K. NussBAUM, supra note
120, at 25-39 (1983).
185. R. HOROWITZ, supra note 108.
186. !d. at 80-81.
187. !d. at 81-82.
188. /d. at 82-86.
189. !d. at 166.
190. !d.
November 1988]
l
333
Studies
E."v!PLOYER ABUSE
33
"A 'real man' ... need[ed] to get dirty in order to

k "IH:.! Consistent with this approach:
hoW that e wor s.
h
s
.
. ed with some ambivalence. On t e one
White-collar JObs arc vtew d
"hustle " a good way of earning
h
h
be evaluate as a
han d ' l ey may
.s viewed as doing little .... On the ot er
money be'cause the_ employe~ ' d l come by and striving for such a job
hand white-collar JObs are ar o
. f 'l
\93
is likely to bnng at ure.
d . d d hite.
b h f riticism and envy' the men en e w
As an expressto? ot o ~
k 194 The young men rated a job that
.
g
1 . bs as bemg women s wor .
. l' . g or creative self-expressiOn as amon
co 1 ar JO
allowed for peer group sc:'oa tzm
an a sense of importance.l95 Bethe better jobs. ~ecause It gave :h;;men instead sought status and ~e
cause such postttons were rar~,
r groups and extended famtly
spect through involvem~nt m pee . 196
b
d. the Chicano commumty.
relations ase m
h'
ales presented by Horowitz
The attitudes of the yound? ~ ICaLanoti:O cultural heritage than of a
h
oduct of a tstmct
k
. o" shared by other low-status wor ers m

seen:t I ess t ~ pr "
generic Anglicized ~ac~ls,r::-7 Their attitudes are similar to those Paul
America and Great Bnt~m.
198 an ethnographic study that exWillis analyzes in Learn~n~ to L~our, lass men seek working class jobs.
plores why young Enghs wor mg c
l!ll
a toug 1 mhan.
.
.
. n is artially re-interpreted into a
Willis concludes that
~th the talk Difficult, uncomthe brutality of the workmg sltuauo_
nly confrontation WI
r
.
.
f
hermc exerctse o rna
..
ot for themselves, but 10r
d
s condtUons are seen, n
uline readiness and hardness.
fortable or a~gerou
their appropnateness. to a mtsc ual work the will to finish a job, the
... (I]n the ma_chts~o od ma':nasculine logic and not as the logic of
will to really work, ts postte as a
. . 199
explmtauon.
191. !d.
192. Jd. at 167.
193. /d. at 166-6 7.
194. !d. at 167.
.
d anaging a bar and serving as a union shop
195. /d. at 168 (examples dscussc were m
steward).
196. /d. at 169-71, 224-25. . .
. IAN 1984). 11te white, male, blue-collar work197. See D. HALLE, AMt:RtCA s ":?RKI~t. ~ rna~" in referring to themselves. l'f- at 204. _A
ers Halle studied emplovecl the term "orkmg
I . g closely supervised physiCal labor m
"working man" is one ..;ho docs dirty. dadnbgertoht~~ >;:p,~e~sion of class consciousness and ~dn
.
'11 trm represente

oJd at 204-07. It was a1so a en_t_que of .overpat
a lactory
setung.
tc. ~.
.
assertion of the supenonty of su~h wo;~~
Although the concept addttwnally t~pheld a
unproductive white-collar jobs. I : ~t. f . b
H lie concluded that this is bec~~mg esds
o 1a or, a's own business, umon
general acceptance o f t h c scxt 1al dvtston

.
or.gamzmg
.
' an
.
t
/d. 21 1 12 llte men constdercd runnmg one
. .
(like truck dnvmg) destrarue.
- .'
I'
(like police work) or no supervtston
h white male
.
. H
witz's book. however, t e
.
positions involvmg sooa tzmg
ble jobs. /d. at Hi5-(i7. Unlike th_e Cluca~osi~~in ,o:omiddle-class status with regard to ~het.~
blue-collar workers enjoyed, to thetr wa): ol th
g. d for the "humiliations and restramts
lives outside the workplace, id. at 51, whtch rompensatc
of their employment. !d. at 29 5 .
I !18. P. Wtu.ts, mjlm note I !l.
199. /d. at 150-51.
o7
334
34
STANFORD LAW REVIEW
Critical
[Vol. 41:1
Willis finds positive and negative as

.
.
riority. On the one hand . d" "fi pects m thts use of masculine supebunks the greater status' n_ tgm es the workers' labor power and depromotes not effici
b gtven to . mental tasks and credentials that
hand "t
ency ut occupatiOnal stratification.2oo On the othe
, 1 encourages aggres
r
ual lines, and produces
ston, sep~ates the _working class along sexbor. 2o t The amount of fia codnsenshu_a affir~atiOn of the division of laree om t ts gen
"
h"
..
further reduced by the use th
h
enc_ mac ~smo generates is
The outra e cas
at t e conventiOnal wtsdom makes of it
it to th g. . es, for exa_mple, tout working-class "machismo" and ti~
e extstmg occupatiOnal hierarch
. .
blue-collar males 202 Th . h
Y so as to JUStify the abuse of
it, and they shouid be p.:~~cof 1~es that they are tough, they can take
In certain circumstances h
h .
.
machismo that is more closeiy i~we;~r,d t ~ ~tber~tmg potential of the
a_nd it becomes a political force t~~/d~fi wtt Latm~ culture is realized,
tttled Myths, Rituals and Symb ls . the Ch. es co-optatton. In an essay enm
lcano Peasant Movement 203 T
ca Ivo Buezas describes theopositive
us
f
.
,
?mas
farm workers movement to foster
..e o m~~hts~o by th~ Chtcano
working conditions The m h. pol~tcal activity atmed at tmproving
grounded in Mexi~an cultu:~l tsmo o which Calvo Buezas writes was
North American setting 204 "I v~l~e~ yet ~eflected the reality of the
ings of machismo is a v~luable :~~u;altt~a~/t~~ilex ranJe of me~nresponse' of a man attacked and wron ed ,;2os
rav~ an ag~resst~e
the movement's leaders and
bl" . g .
Drawmg on thts trait,
resl?onse" that Calvo Buezas~~b;~a~~~~tsh~o~ght, a~d go~, a "~o.llective
haviOr legitimized by the belief that
_ca mac~t~mo, for _n ts a bement which violates fireedo
d hone ts t~e VlCttm of UnJUSt treatm an
uman d
"206 c
argues that, although the basic fu
.
" t!Smty.
. alvo Buezas
meaning ("personal brav ") nctiOn ( reststance to mjustice") and
farm laborers' movement werays c w~r~ pdr~serve~, the machismo of the
emmtze m that It w
.
as non-VIO 1ent, flextbl e, and open to compromise 207 Th
tion that would subvert their c.ultural ~go~! was ~ot. "a. passive integra~anted an active integration from th~ ~~titty (asstmllall~n-fusion); they
m a process that would result .
A I ca~o group (_macho-father')
man ng o-Htspano sooety."2os
200. ld. at 151-52.
20 I. !d.
.

203. Calvo Buezas, Milos, riluales simb
. .
ESPANOLA DE ANTHROPOLOGIA AMERI~NA 2~~s ~~.;~ tovumen_to campesino chicarw, 1.1 REVISTA
Stanford Law Review); see also A. MIRAND T
( ) (Enghsh translation on file with the
SPECTIVE 165-81 (1985) (a reassessment~fnHE.~HICANO E;c:Pt:~J~NCE: AN AI.TERNATI\'E i'ER204. Calvo Bu
lac smo, castmg It m a positive light)
ezas, supra note 203, at 26fi.
205. ld. at 265.

206. ld. at 266.
207. !d. at 267-68.

208. ld. at 267.
November 1988]
D.
335
Studies
EMPLOYER ABUSE
35
Conclusions and Implications
As the creators of informal, local cultural mechanisms that include

patterns of antiauthoritarian resistance, workers cannot be said to buy
lock, stock, and barrel the dominant messages supporting authority and
its excesses. The critique of supervision explicit in workers' discourse
and implicit in much of their conduct is pointed and categorical. From
the workers' perspective, the supervision they encounter reflects distrust and suspicion of their competency and honesty. They are isolated
and constantly demeaned. Moreover, verbal aggression and coercion
are used to push them to work harder or to keep them "in their place."
Although not expressly racist, ethnocentric, or se~ist, the control mechanisms reflect and reinforce negative assumptions about the. workers'
race, et)micity, or sex. Moreover, to the extent that the various forms
of oppression merge, the workers' critique expands in its scope and
generality.
Compared with this strong critique, however, many of the practices
by which workers respond to the treatment they receive from their
superiors are ambiguous and equivocal. In some cases they promote
resistance, and in others they produce acquiescence and accommodation. Moreover, the political message embodied in group and work culture is too informal and partial to counter effectively the sustained,
relatively coherent world views regarding workplace supervision espoused by institutions like the schools, the media, and the courts. Thus
workers remain susceptible to the explicit and pervasive support for the
racial and sexual division of labor and the qualitative differences in the
treatment of skilled versus unskilled workers that the dominant" ideology offers. The workers themselves adopt or reinforce racist and sexist
notions in coping with workplace oppression. Through cultural accommodations, workers of nearly every race, ethnicity, and sex can assert
some. measure of positive status, even in the face of group discrimination. Persistently held notions of white supremacy permit whites of
both sexes to consider themselves better in some way than people of
color, while patriarchy generates in males of every race and ethnicity a
sense of superiority to women. At the same time, females take pride in
doing "women's" work and minorities can boast of their masterful
command of emotional disguises in dealing with a racist society. The
resultant web of posturing reduces rebellion and reinforces hierarchy
in the workplace.
The workers' negative critique justifies a full frontal attack on supervisory abuse. Although the informal cultural mechanisms explored
above may not be aggressively antiauthoritarian, they do represent a
potential challenge to employers, supervisors, and bosses. Willis argues that these mechanisms might be positively viewed as representing
"the creative, varied, potentially transformative working out-not the
suffering-of some of the fundamental social/structural relationships
,I
336
36
,Ill
I
STANFORD LA lV REVIEW
Critical
[Vol. 41:1
209
of society."
As such, they are a starting point for a broader campaign to help workers liberate themselves from supervisory domination. The effectiveness of the informal cultures would be strengthened
and broader political activity generated if the ideology disseminated
from above lent greater acceptability and coherence to the negative critique. The Chicano farm workers movement, for instance, was supported by a nationwide boycott. The formal worker attack on overt
racism and sexism {rather than authority per se) is sustained by the values and mechanisms that are a legacy of the civil rights movement.
The negative critique must, in essence, be turned into an integrated,
consistent antiauthoritarian counterideology. This requires that the
problem of abuse be generalized and its coercive nature exposed. Furthermore, real change in the workplace would seem to require an amassing of power, a countering of the coercive strength that abuse
embodies and symbolizes. The next section looks at the structural significance of abuse with the aim of measuring its prevalence and its vulnerability to political attack.
III.
AUTHORITATIVE ABUSE FROM A MATERIALIST PERSPECTIVE
Debunking the view that abuse is situational in nature, establishing

that the harm it causes is quite substantial, and enhancing the coherence of the workers' critique all require a more objective assessment of
the problem than the cultural perspective alone can provide. A structural analysis should also reveal that the workers discussed in Part II are
inhibited by more than their own values and practices. Significant material constraints limit their critique and localize their resistance. Emotionally painful supervision on the job is a manifestation of the
organization of work institutions and the configuration of the labor
market.
The coercion that authoritative abuse represents nonetheless requires the warrant of a veneer of worker cons,ent. Its use might accordingly be lessened and its structural foundations altered if the vibrant
cultural resistance of the workplace could be enlarged into a highly visible social movement that forcibly proclaimed the opposition of minority and female workers at all levels to the many forms of supervisory
harrassment they experience.
A.
The Role of Coercion in Controlling W01kers
Viewed in the grossest terms, the employment relationship is one of

conflict. The employer atlempts to maximize worker productivity and
firm profitability, and the workers attempt to restrict their labor output
and increase their wages. However much they struggle, to some extent
all workers must obey the directions of their employers in order to keep
209. 1'.
WILLIS, Slljlra
note 19, at 137.
37
EMPLOYER ABUSE
November 1988)
. . bs
337
Studies
. coerCion
.
tes the employment relationEconomic
necesslta
th~tr JO . . h h
t basic and pervasive sort of worker conshT 2 ~~dA~u~:~e~s~a~ :~~ested in his 1943 article, Bargaining, Duress,
tro.
. .
211
and Economtc Ltberty:
compulsiOns
We d 0 not h ave slav e labor but there are nevertheless
.
.
1
.
I
work
In our industnal soetety, an emp oyee
which ~orce peop e to k
in with his employer and thus obtains
works m ord~rhto ~a h\~ f:;!\imself from some of the restrictions
the money Wit w IC
h freedom to
which other people's property nghts place on IS
212
consume.
.
b...
,
The wage dependency that compels workers _to obey tlheir em~-~<_>ye~~
d . but one in an array of mechamsms e~p oyers. u I IZe
comman s IS
Th
control devices vary m the ex-
;~~~etZ'w~~~;;~~::.~?n:::~do:.~d pe~suasion to. extra~t o;~~
ence to workpla~e autho_rity. Lo;:~~a:to~~~~;~st :ro:~~\:b~~ force

coercion/persuasiOn contmuum a
. "
h
d "si'mple" and "bureaucratic control.
ave terme
.
d th
eThe maiority of the workers whose stones are recounte m e pr f
y
.
.. .
1 control."213 "The essence o
v~ous section wer~ SU~J:~~i~~a sm:~r of foremen and supervisors to
Simple control ... ~~ the formr::Ce and to discipline or reward work-
~;:ec~7:::~ ~y~~~~~r!~rthe work:rs in such a ~ystem can ht~e ~ittle
. b.
'ty "214 Supervision 'under a scheme ofsi~ple contr~ IS c oseh,
JO secun .
d 215 The supervisor functiOns muc
direct, informal, and unstructure
.
216 Job assignlike an individual entreprene~r i~ dirdect.n~g op;;:ttl:?t~ the supervisor

ments, wage rates, and termmatJOn ~Cistons
.
d 217
and ar~ used to achieve compliance with her or hts comman s. d' .
. .
Thus simple control capttahzes
on wage d e~e ndency
.
h byd con Itlond of
. ,
:
d
1 menton subordinates' sattsfymg t e eman s
generally lie withi_n the
the supervisor, and there is no higher a~t~~;~~~~~~~i~:: disagree. In a
way of an appeal should the wo~ker. an wer rna not be absolute behierarchical context, the supervisor s bo .
y b quite broad with
cause there is oversight from above, ut. tt m~y e
regard to a partiCular
segment 0 f t h e b u smess 218
219
A Sc.heme of bureaucratic control presents a sharp contra_st. f
f,or th e exerc1se o
Whereas simple control maximizes the possl'bT
I Illes
~~~ ~~~~~n~or~~~n~~ti~ns
210.
211.
212.
213.
214.
215.
216.
217.
218.
219.
SeeM.
BuRAWOY,
THE
PoLITI~S
unilat~=~~~~~:~ ~:
J'
TJON
OF . RO?uc
Hale, Bargaining, Dures.<, and Ecmwrmc Lzb"ty, 43

Id. at 626.
R. EDWARDS, CoNTEsTED TERRAIN 19 (1979).
Id. at 183.
/d. at 33.
/d. at 31-32.
/d. at 35-36.
/d. at 32.
See id. at 13 I.
su"ra note
140, 603
at 31.
L. REv.
(1943).
"wM
Co
.
338
38
STANFORD LAW REVIEW
[Vol. 41: I
arbitrary coercion, bureaucratic control seems to maximize the opportunities for the exercise of rationality in worker supervision. Bureaucratic control is a result of past labor/management struggles,
particularly the industrial union movement which achieved momentum
in the l.930's. 220 The chief components of bureaucratic control are the
legacies of concessions negotiated by unions or unilaterally implemented by employers seeking to curb class conflict at that time.
"[B]ureaucratic control is embedded in the social and organizational structure of the firm and is built into job categories, work rules,
promotion procedures, discipline, wage scales, definitions of responsibilities, and the like."22I
"Rule oflaw"-the firm's law-replaces "rule by supervisor command"
in the direction of work, the procedures for evaluating workers' performance, and the exercise of the firm's sanctions and rewards; supervisors and workers alike become subject to ,the dictates of "company
policy." Work becomes highly stratified; each job is given its distinct
title and description; and impersonal rules govern promotion. "Stick
with the corporation," the worker is told, "and you can ascend up the
ladder." The company promises the workers a career.222
The operation of overt coercion in a scheme of bureaucratic control

is diminished through explicit provisions governing job security, work
assignments, promotions, and the pace and quality of work. These
measures not only reduce the ability of employers to exploit workers'
wage dependency with unrestricted production demands and threats of
ar~itrary dismissal, 223 but also limit the capacity of employers to shift
the bm;den of economic downturns to labor through furloughs and discharges.224 Although employers retain the right to discipline employees, exercise of the prerogative is restricted by the "good cause"
standard and the procedures of the grievance process.22s Furthermore,
seniority systems dictate who will be protected from layoffs and who
will be promoted. 226 Seniority systems also affect how an employer
may define a job or its content. 227 All of these features lend a rigidity
to bureaucratic control that makes it more costly than simple
control. 228
Various aspects of bureaucratic control, such as internal labor markets (which reward skill and seniority within the firm)22!l and quasi-legal
220. D. GORDON, R. EDWARDS & M. REICH, SF.GMENn:u WORK. DIVIDED WORKERS 179-82
(1982); S. BERGER & M. PIORE, DUALISM AND DISCONTINUITY IN INDUSTRIAL SOCIETJt:s 42-43
(1980); Gersuny, Origins of Seniority Provinons i11 Collectiiie Bargai11ing, 33 LAs. LJ. 521-22 ( 1982).
.
221. R. EDWARDS, supra note 213, at 131.
222. /d. at 21.
223. M. BURAWOY, THE POLITICS OF PRODUCTION, supra Jl(l(e 140, at 126.
224. See S. BERGER & M. PJORE, supra note 220, at 43.
225. See id. at 44.
226. See id. at 43.
227. See id. at 44.
228. D. GORDON, R. EDWARDS & M. REICH, supra note 220, at 200-02.
229. See gnu'1"a/ly M. BURAWOY, MANUFACTURING CONSENT, supra note 140, at 95-108.
November 1988]
339
Studies
Critical
39
EMPLOYER ABUSE
overnance mechanisms, ostensibly generate voluntary accep_tance. of

g h 'ty by the work force. The workers appear to have choiCes w1th
aut on
b'l'
o their working conditions 230 and the supervisors a 1 1ty to
respec t t
'
.
b d 231
ercise arbitrary and discretionary power IS apparent1y cur e ..
~he benefits dispensed on the basis of seniority "eng~~der a comr~ut
ment to the enterprise and its su_rvival:" 232 The provlSlOI"_lS governmg
. l'ne and discharge operate m an 1mpersonal way wh1c~ lends the
d ISClp
1
f
233
appearance of consensual legitimacy even to the u~e o co~rCion.
Although the bureaucratic apparatus can b~ q~1te effect1ve at managing conflict and at camouflaging the sup_erv1sor s power over he: or
his workers,234 it does not prevent sup~rv1sory abuse from occu~nng,
nor does it completely stifle worker ~es1stan~e. ~he amount o_f d~cre.
nd authority a supervisor exeroses vanes w1th the orgamzat10nal
uon a
. . 235 s
h
structure and her or his individual capab111t1es.
upe_rv1sors w o
ossess relatively little power and are insecure about the1r status are
P
236
techmques
prone to manifest abusiVe

o f d'1r~ct10n
an d con t r ol .
Thus, simple control represents a ~atenal, structura~ obstacle for
workers contending with abuse on the JOb. Compared w1~h the ~labo
rately obscured coercion of bureaucratic control, the coerc1on of s1mple
control, with its greater potential for supervisory abuse, is patently, and
thereby more effectively, dispensed..
.
,
.
The workers' ability to check the1r supervisors power over them 1s
further decreased because the compulsions of simple cont~ol do n~t
stand alone. They are typically compounded
other workmg conditions and the overall economic, social, and pohucal status ?f tho_se wh?
labor where simple control is employed. Simple control IS. an l~extn
cable component of what might be c_onsidered ~he worst JObs m the
economy: those requiring the least sk1lls and paymg the lowest wages.
?Y
B.
Abuse and Secondary Sector jobs
Labor market segmentation theory is a useful sta~ting point in attempting to establish a roug~ correl~tion _between simple control on
the one hand, and job categones and Identifiable groups of workers ?n
the other. The theory developed in the 1960's out of an effort by hberal economists to explain the perceived relati~ns~ip between _ca_tegories of work and work experience and the ascnpuve charactenstics of
workers, particularly race. The theory considers not only the nature of
230.
231.
232.
233.
126.
234.
235
hl.,
/d. at 116-17.
/d. at 106.
Jd. at 120; Sff a/so M. 1\tTRAWOY, Tilt: I'Ol.ITICS OF PRODUCTION,
SU
ra
note
140
'
at
Sre R. EDWARDS, sufJrtl note 213, at 145.

.
. db
_
Set eg id. at 141 (at Polaroid, supervisor's room to maneuver IS re~tncte
Y 10 P
1
'
.,
120
1
167
73
(managers
power
great
Y
d own management rev1ew); R. KANTER, mpm note
a
affects supervisory style).
236. Su R. KANTER, .lllfJra nole
120,
at
189-205.
340
40
STANFORD LAW REVIEW
Critical
[Vol. 41:1
supervision but also other aspects of a job such as pay, advancement,

job security, occupational status, and quality of work. 2S 7 Based on
these criteria, it divides workers into three distinct, hierarchically related segments: at the top, the independent primary market which consists of white-collar supervisory and mid-level administrative personnel
(such as salespersons, bookkeepers and personal secretaries), craft
workers, and professionals; next, the subordinate primary market which
is essentially composed of the traditional blue-collar manufacturing
groups; and finally, the secondary market which contains unskilled and
semiskilled unorganized workers. 238 In 1970, the primary sector was
composed predominantly of white males, 239 while minorities and women were overrepresented in the secondary sector.24o
Because of changes in the economy, particularly the expansion and
further stratification of the business service sectors, 241 the decline in
union membership, 242 and the partial lowering of color and sex barriers,243 the segmentalists' categories do not accurately portray the contemporary division of the work force. The theory nonetheless retains
descriptive power with regard to the secondary sector as the characteristics of jobs at the bottom of the hierarchy have remained virtually unchanged for roughly two decades.
The secondary market segment includes unskilled or low-skilled,
nonunionized positions in manufacturing, consumer services, retail and
wholesale trade, clerical work, and migrant agricultural labor. 244
What marks these jobs as secondary is the casual nature of the employment. The work almost never requires previous training or education beyond basic literacy. Few skills are required and few can be
237. S. BERGER & M. PIORE, supra note 220, at 17-18; R. EDWARDS, supra note 213, at 236
nn.3-4.
238. SeeS. BERGER & M. PIORE, supra note 220, at 17-21; R. EDWARI>S, supra note 213, at
163-83. See general~v D. GORDON, R. EDWARDS & M. REICH, supra note 220, at 190-227.
239. See D. GORDON, R. EDWARDS, & M. REICH, supra note 220, at 202.
240. !d. at 204-06, 209-10.
241. See Personick, Industry Output and Employmml Through the End of the Cmtury, MONTHLY
LAB. REv., Sept. 1987, at 30, 32-33, 39-40. See gmerally Kasarda, Urban Charw and Minority
Opportunities, in THE NEw URBAN REALITY 33 (P. Peterson cd. 1985).
242. SeeR. FREEMAN &J. MEDOFF, WHAT Do UNIONs Do? 221-45 (1984) (attributing the
decline in union membership to increased management opposition and reduced union organizing). In 1986, only 17.5% of all wage and salary workers aged 16 and over were union
members. BuREAU OF THE CENsus, U.S. DEP'T OF CoMMERCE, STATISTICAL ABSTRACT OF THE
UNITED STATES 402 (108th ed. 1988).
243. In reference to women, sec generally C. TAElJKER & V. VALDISERA, WOMEN IN THE
AMERICAN EcONOMY 18-23 (U.S. Bureau of the Census Current Population Reports, Series P23, No. 146, 1986); 1987 EcoN. REI'. OF THE PRESillf:NT 218-25. Minority workers have also
shown small gains in the white-collar category. For example, in 1970, roughly 8% of black
employed civilians were professional and technical white-collar workers. Tm: SOCIAL & EcoNOMIC STATUS OF THE BLACK PoPULATION IN Tm; U.S.: AN lirSTORICAL VJt:W, 1790-1978 at 75
(U.S. Bureau of the Census, Current Population Reports, Special Series P-23, No. 80). In
1982 their percentage had increased to 11.8%. 1983 HANDBOOK OF LABOR STATISTICS 48. In
1973, 6.!>% of Hispanic employed civilians were in the same white-collar category; by 1982
th<"ir number had risen to 8.5%. /d.
November 1988]
341
Studies
41
EMPLOYER ABUSE
d Such jobs offer low pay and virtually no job security. Th~y
ear~~ ~ther words, typically dead-end ~ob~, with few pros~ects f~r a -
are,
reward for senionty
m the form of
1<
vancement an d !'tie
k either higher
ove
better job With little incentive to stay, wor ers may m.
pay or a
n.over in these .obs tends to be high. The only thm_g
frequendy,kandbnt~nrgs
to a seconJary job is labor power; the worker IS
that a wor er
.
245
treated and paid accordmgly.
.
control is accordingly a salient aspect of se.condary sector wor~.
eQ,J.ployers have little
in matchmg
and
.obs, they feel free to replace or dismiss workers as t elr a or nee
J
"246
secondary market jobs are considered marginhal, not
f secondar market workers may be so c aractenze .
smaller
in highly
arkea:
.
d b
latmg t e1r wor 10rce .
just to fluctuatio':s m deman
y ~:~~ucore of the economy that, by
Others are stand-ms for larger firmsk
k
248 The large firms are
.
h"
ndary mar et wor ers.
subcontractmg, Ire seco
. I .
blems to save on emthereby ~ble to circumvent p~~:~Iae ::.:IC:.::a~~~acture 'or products that,
ployee fn~ge ben~fi~d ~~ds~~ndardi~e. generate difficulties in. supe~is
because t ey are a
I
fi ms that have escaped umomzauon
workers are able to sustain
secondary. sector modes of operatiOn.
k t
I I' eu of union contracts and bureaucratic rules, secondary ~ar e
are dependent on
dency and to weaken the abihty o emp oye~s o
251 the minimum
1
II 250 Unemployment msurance,
conditiOns um atera Y
.
d come maintenance prowage Iaws,252 workers' compensation, 253 an m
~[~1~~e
cha~f~ough
tShoem:mJl~~:; a~e
inves~me?t
c~ncerns
~o~k~r~
th~:
~II ~f
thats~~;
~ompheti~ive
:gt~~r~~~~t!~r~:;~~sr~f ~~:u':~on~!~d
wor~r~
s~a.tuto( proltectio~s t~;~:ec~;~fewo~~f:~
245. /d. at 167-68.

246. /d. at 170.
at 23 . D GORDON, R. EDWARDS & M.
247. SetS. BERGER & M. !'lORE, supra note 220 '
' .
,, . t
REICH, supra note 220, at 191.
. D GoRDON, R. EDWARDS & M.
248. See S. BERGER & M. l'JORt:, supra note 2 - 0 . a 47 ' .
REICH, supra note 220, at 191.
t. 220 at 200-02.
249. D. GoRDON, R. EnWARI>S & M. REICH, supra no c
.
40 at 125-26.
250. Stt M. HuRAwov, Tilt: Pm.ITICS OF I'RODUCI."t~N, supra note I :Oent insurance has
251. 42 U.S.C. 503 (1982). The number of r~Ciplen~s 0~ u~;,~;;P~:: ber of Workers, N.Y.
reached an all-time low. Uchitclk,jobless lmwrm~e .Sy.<lmt_Auis. ~ temporary employment has
Times,juty 26, 1988, at AI, col. 4. The increase m i,>art-uWmc :KING BtiT PooR 107-08 (1988).
b1
ld
lw s 1 fVITAN & I SIIAI IRO, o
.
d
re d uced ehg1 1 1ty. .; see a
.
I ~~ f their income for a max1mum uraThose who do receive compensatiOn col 1eel on} . ' 0
UNPROHCTED 9 (1985).
k j BICKfRM \N UNF.MI'I.OYt.D AND
) ( ) ( )
lion of twenty-six wee s.
'
;.
f I 'I 9 U.S.C. 206, 213(a . c g
2
18
252. Set Fair Labor Standa_rds Act 0 :. I! .' ~ :
The current standard of$~.35
(1982) The real value of the mmlrnum "ag<" h.ls dcdmc [ 1
sumer prices have nscn
d
J
. r'' 19H I even t 11011g11 cor 1
an hour has nol been increase smce. anua ' :
.1.
MINIMtiM WAGE AND PoVERn 1
. penn
d " 1 SHAI'IRO No EscAI't::
HE
. .
e
30 perc em over t h IS
~ .
In 1986 most m1mmum wag
(1987) see also S. LEVITAN & I. SHAI'IRO, SII{Jra note 2 1. 'at 7-8
tcly,high percentage were
'
. men and a dJSproporuona
d.
d
workers were adults, two-t 1ur s were " 0
.'
"Iv affecting those engage 111

. I. S IIAI'IRO, Sll p."' 31 7 f xemptwns
.
bl ack or Hispamc.
r pnman
. ..th
the
law increase t h e num b er
the service industries and retail trade) and noncomp mnce " 1
11
d ..
342
42
STANFORD LAW REVIEW
[Vol. 41:1
254
grams
provid
. d fi nancial assistance, however 255 and do
not
d'
I dd e very rtmite
T~rect .Y a ress the day-to-day reality of workplace ab~se
ere IS a correlation between se
d
.
.
of economically and
os, women, teenagers and und
d .
.
'
'
ocumente Immigrant workers
continue t b d'
labor force~256e A ~t~J:~~~~nbat~~ r~p~es~nted at the l~w. end of the
Rights used the term "mar . y . e ..mte Sta~es Commission on Civil
ondary sector. 257 A mar .~~7~1 J~bs to descnb~ positions in the secless o~ specific vocation! trai~~n w:~done ~equmng three months or
wage m the area in which it was l~cated ~!rng _less t?an th~ ~verage
study reported that in 1980
_llsmg this defimt10n, the

cent f H"
.
,
, 21 .6 percent of black females 18 5 per
~~:bership
po~~~al~;'v~~~~:at~~ ~;~~~:~ ~l~:~e
blackomal~;,a~~f~7.~l~~;c!:toe;~~t of~hite females, B.9.per~ent of

cent of w?ite
~ales,
held marginal job~~~g males, versus only 5.3 per-
min~~~/~~~u~;:~l;~~~~~:~;u;trates that the authoritati_ve abuse that

some extent a phenomenon of t~w status w?rkers com plan~ about, is to
t~tion of the coercion of simple ;o~~:'a~oa~~c ;~ructure. ~tIS da mani~es
tlon of secondary market workin
d' .
e ~nregu ~te explOitaand confined to secondary se tg c~nb ltiO~s. SubJect to stmple control
previous section rei . on inforc or JO s, t e workers described in the
the unilateral impos~tions of smal c~ltur\ to protect themselves from
on-the-job mechanisms availab~~~:~:~;~ ec~use t~ere a~e no formal
Vtewed m thetr structural
context the 0

skilled ~nd lo~ps~~i~t~na1_asp~cts of the group and work cultures of un-
~licable. His to~ su;ge~~n~~~~yr:~~e f;~~:~ :orkers be~ome more. exhke bureaucratic control ( h t
.
d expenstve alternatives
adopted by employers wit~o a tever ~ts absolute merits) will not be
resistance alone seems no rna~ h ~or ~r strug?le, and ~ocal cultural
c or t e coerciOn that Simple control
of workers paid less than the minimum wa e
.
.
54-55.
g !d. S. LF.VITAN & I. SHAPIRO, supra note 251, at
.
253. Se~generally IB A. Larsot~.sujm7 nole 17 4'> 20 2
froost, Worki!Ts. Compmsatiort and Gradual .
.
'- -. 4 ( 1982 & Supp. 1983). See also
(student author) (claims not supported bStre~s ~~~ t~l~ llor~plaa, _133 U. PA. L. RF:v. 847 (1985)
courts).
y p 'YSICa mamfestaltons of stress problemalic for
254. Fe~~rally supported categorical relief is rovided I
. .
. ..
Dependem Ch1ldren program (AFDC)
U S C P
I lruugh the A1d lo hm1hes wilh
fa mT1es m
poveny." S. LEVITAN & 1 S42 , GO I el seq "AFDC paymems leave most
be~efits provide only meager assistar;c~,':~ :~~ sujJ~ note 251, at I 00. AFDC and in-kind
assistance or home relief la'"'s lllay al
"d t wor mg poor. /d. at I 00-0G. Stale general
1I y unemployed who are willing

so prov1 e sorn
to work S
. ~ monelary assistance
to those temporar1980); N.Y. Soc. SERV. LAw 131 (McKin~:
AI:. ~f.I.t". & INST. Co~>E 18504 (West
983
432(3) (Purdon Supp. 1988 ).
& Supp. 1988): PA. STAT. ANN. tit. 62,
Y
255. See notes 251-254 mpra
256. See notes 237-240 sura.and ace
. .
257 US
r
ompanymg text.
.
. . COMMISSION ON CIVIl RICHTs U
AMONC BLACKS , H ISPANICS, AND WOMEN- 7 (198
' . ) NF.MPLO\"MFNT
AND lJNn t:REMPI.O\'M:NT
.
2
258./d.at8,GJ.
,
259. !d. at 8-9.
'f;
Critical
November 1988]
343
Studies
EMPLOYER ABUSE
43
and secondary sector practices embody. As the cultural norms and

practices of those who fill suchjobs sustain structural abuse by generating "consensual" accommodation and acquiescence, they also create
and expand the opportunities for ameliorating and reducing its harshness. This interaction between the structures of authoritative abuse
and the human agents of cultural resistance is a key to escalating the
attack on simple control at the 'Secondary level. 260
C.
The Dialectic of Authoritative Abuse and Cultura! Resistance
The consignment of minority and female workers to low-paying, insecure positions at the bottom of the labor market has been explained
by reference to both cultural and material factors. Minority and female
workers are said to be handicapped by a lack of market information,
lower educational levels anci.job skills, partial commitment to the labor
force, and poor work attitudes. 261 This theory, which attributes primacy to cultural factors, emphasizes the group origins of these traits
and asserts that job segregation and secondary market working conditions' are the response of a competitive market to the workers' poor
"human capital," 262 and to the competition that results from ~n overabundance of unskilled labor. The materialist or structural explanation, by contrast, argues that the characteristics ascribed to minority
and female workers reflect a rational response to the discrimination and
limited employment opportunities the groups face. 263 It finds fault
with the demand side, not the supply side, of the labor market. The
competing theories quite naturally support different policy initiatives.
The cultural primacists would alter the workers with job training and
education, 264 while the structuralists would create high-paying stable
public service employment and redesign jobs to increase the number of
"good jobs" as corrective measures. 265
These explanations apply equally well to the interaction between supervisors and employees in workplaces characterized by secondary
market operations. The resort to authoritative abuse can be justified by
the need to control "bad workers" or "bad jobs" might be said to provok~ worker oppositional behavior. As the discussion of work and
group culture in the preceding section suggests, however, there is a
266
more complex dialectical relationship between structure and culture,
260. See Willis, Cultural Production and Theorirs of Reproduction, in RACE, CLAss ANn EDUCAlOS, 134 (L. Barton & S. Walker eds. 1983).
26t. See Blau &Jusenious, Ecorwmists' Approache.< to Sex Segregation in the Labor Market: An
Appraisal, in WOI\:flo:N AND THE WORKPLACE 181, 185-88 (M. Blaxall & B. Reagan eds. 1976).
262. See Wachter, Primary and Secondary Labor Markets: A Critiq.u of the Dual Approach, in
BROOKINGS PAPERS ON ECONOMIC ACTIVITI 637, 650-65 (A. Qkun & G. Perry eds. 1974).
263. Ste D. GORDON, THEORIES OF PoVERTI AND UNDEREMPLOYMENT 47-49 (1972).
264. Su Wachter, supra note 262, at 675-77.
265. See D. GoRDON, .111pra note 263, at 94.
266. Other theories positing a dialectical relationship between culture and employment
structures arc, or course, conceivable. For example, in his book Tile Truly Disadvantag~d. WilTION"'
344
Critical
44
Studies
STANFORD LAW REVIEW
Critical
[Vol. 41:1
abuse and resistance. The "bad workers" are the victims of a "bad
rap." "Bad jobs" do not simply produce "bad workers"; they require
"bad workers." Employers can count on "bad workers" to produce
and reproduce themselves via work and group culture. Furthermore,
their seemingly "deviant" behavior facilitates their accommodation to
"bad jobs" and is thereby functionally useful from the bosses' perspective. Although the jobs are "bad," they are often good enough (considering the constraints limiting the workers' options) for the workers to
try to alter them through local cultural resistance. Rather than being
mere cogs in a structuralist/functionalist machine, "bad workers" are
engaged in a constant struggle with their employers to make "bad
jobs" better.
While each view has some merit, both the cultural primacy and the
structural explanations err as applied to supervision in positing a simplistic, one-dimensional relationship between culture and structure.
Neither considers the role of cultural politics in shaping working conditions. The cultural primacy explanation makes a point in suggesting
that positions in the employment hierarchy and the nature of work
place control are contingent in some way upon individual or group behavior. Skill levels and work ethics, however, are not the only controllable factors dictating the status accorded a job, although it would serve
employers' interests if the workers thought that were so. Even if, as the
structuralist claim asserts, constraints beyond the control of the segregated groups largely account for their disproportionate confinement to
the secondary sector, there might still be some room for critical cultural
maneuvering and political initiatives. While the structuralist theory
seems somewhat more sympathetic to the plight of the marginally employed, it, like the theory of cultural primacy, presupposes that any
changes in their working conditions must proceed upon terms identified with the conventional wisdom (which is to say employer interests).
Both fail to recognize that groups that have been excluded from full
participation in the benefits of the economy are affirmatively attacking,
through critical oppositional behavior, the dominant mores and strucliam Julius Wilson argues that "[g]hetto-specific culture is a response to ... structural constraints and limited opportunities." W. WILSON, sufJm note II, at 136. Reform efforts should
thus be directed at changing the social and economic situation of t~e undaclass and not it<
cultural traits. /d. at 138. At the same time, Wilson attributes underclass culture to "social
isolation" which he defines as a "lack of contact or of sustained interaction with individuals
and institutions that represent mainstream society." /d. at fiO. rhis isolation is the product of
the departure of middle class residents who on(e resided in segregated neighhorh<><>rh. They
were not simply good role models; their greater economic and educational resources provided institutional stability to segregated communities. !d. at 137-:iR. 144. Wilson's anaJy,is
loses its dialectical quality when he argues that "changes in {the] social and ronomic situations !of the underclassJ will bring about changes in behavior and norms." /d. at 138. I lis
approach also differs from that employed in this article in that he ignores the positive critical
aspects of underclass culture and does not view the underclass as the active agtnt of its own
liberation.
. November 1988]
345
Studies
45
EMPLOYER ABUSE
wra I Const raints that assign

.. their jobs
to the lowest rank in terms_ of
ay prestige, and supervtston.
. . ]
.p ;,Class struggle [is] more than a dispute over wage~ and hours; tt [ts
ultural warfare at the highest level." 267 Through td~?logy, cultu~e,
c d politics that originate and thrive locally ~orkers cnt~que and r~stst
an
dary market working conditions includmg supervisory coercton.
;:~~~dary market workers cann?t be expecte_d to forsake their consciousness of employer exploitatiOn and ~~erc_10n and be won over to
upon
the prevat1mg wt'sdom Their mass mobthzatiOn dependsk first,
1
b
the rejection of the argument that s~mple control and wor p ace a use
are mandated by objective economic concerns, and second, upon the
roclamation that simple control and workplace abuse are _the product
~fan ideology, culture, and politics to which the workerswtll no longer
consent.

k'
op
To be viable, culturally grounded grassroots acuvtty attac mg
ressive working conditions at the secondary market level must have a
P.counter-coercive" component. Class struggle ~s al~o a power struggle.
Although the point is a crucial one, its exploration ts beyond t~;t~pe
of this article. If there were a shortage of workers to fill uns t ~ or
low-skilled jobs, and if finding another job were a real rathe: t?a?J~S~ a
[theoretical] economic possibility,268 those who are mos\ vtctm~~eh Y
the abusive supervision associated with simple contro . wou
a~e
more economic chips to parlay for systemic change: In thts r~spe~t the
Proliferation of entry-level service jobs and the proJected d2~~hnTehm t .e
kers ts
somew h a t encouraging
ere
number of youthful JObsee
f hts
already a growing concern about workers w~o have dropped out o t ~
labor force entirely.270 The power dynamtc betwee? employee_s an
employers should also be affected by the fact that, wtth _the dhe~lme of
. sector, neWJ'ob growth for w tte men
the better-paying manu f:actunng
271
has been concentrated at the low-wage end of the labor spectrum.
267. H. GuTMAN, supra note 104, at36 (from introduction ~y I ~~~~~~- See alJo H. GUTMAS, WoRK CuLTURE & SoCIETI' IN INDUSTRIALIZING AMERICA ,_
268. W. WILSON, supra note II, at 1 0 -04

.
OOO MoNTHLY LAB. REV.,
269. Kutscher, Ovi!TV!ew an~ lmpbcat~oru_ of tlu Projectwns to .!mt Trends to the l'ear 2000,
Sept. 1987 at 3, 6, 8-9; Sllvestn & LukasieWICZ, A Look at ~mploy d
t ge of their growing
'
1987
46 59 To take max1mum a van a
Mo:-~THL\' LA11.
REv . Sept.
at

d La .
kers w1'11 need academic courr
t"o
black an
uno wor
numbers and labor 10rce paruopa 1 n.
h
. S"lvestri & Lukasiewicz, supra, at
sework beyond the high school level. Kutsc cr. supra, at 8 1
6 76
6~-63.
270.
See Lueck, ;\'ew l'ork 's job Market: ll'h) So .Hany A "
slllmg
Out N y Times Aug.
14,
1988, at E24, col. I.

..
. .
,
joB MACIUNE: THE PROLIFERA271. B. BLUESTONE & U. HARRISON, ] m: ~REAl AMERICAN2 1986) (also in ,\:ationa/ GoalJ:
6
1
nos oF Low WAGE EMI'LOVMENT IN THE U:S. EcoNOMY ~ izbo~ and Human Resources, IOOth
Employmrnt and Povrrt\', Hmrings hifore the Senate .Comnut!er 0
pt
implicit in Bluestone
'
1'>3 129 144 45 (1987)) rl1ere 1s an assum 1011

.
Con g .. I st Sess. at -
-
:
ificant and the necess1ty for
and Harrison's study that a social problem Will a_rpe~r mo,~e Sl~~ cks ~en as well as women,
reform more pressing. if the problem alf~cts whites a~ w~ as a They are not alone is this
and the middle class as well as. the workmg class .a~1 ~t ~ Pt ~~
o; w. WILSOI', supra note
5
regard. See alw S. LEVITA_N &_1. Su:"PtRO, !upra not~ 2 b: d. Stt also D. B~:LL, supra note 14. at
II. at 163. The assumpuon IS raost, sex 1st, and c ass 1ase
7 9
346
46
STANFORD LAW REVIEW
[Vol. 41:1
Conditions beyond the confines of the workplace may even have relevance. It is possible that workers' calls for government intervention
aimed at achieving both job and skills upgrading will receive a boost if
the violence and destruction of the underground criminal economy
which has absorbed some of the urban unemployed and the underemployed272 cannot be curbed without massive militarist repression.
Secondary market workers may also benefit from the assistance of
more powerful actors who can supply the resources to support a sustained organizing effort and push for conciliatory reforms. And if the
plight of those in the secondary sector and the resistance they can
mount does not alone propel the issue of supervisory coercion into the
spotlight of public affairs, the primary sector workers who also suffer
from the abuses of simple control may be of aid to secondary market
workers in their efforts to obtain attention. Some view the mistreatment of primary sector workers by employers and supervisors with considerable sympathy.
D. Abuse and the Primary Sector Jobs
The excesses of simple control are not confined to secondary market jobs. Coercive supervision has produced disquiet among employees in what the segmentalists considered the primary sectors of the
labor force. Although it cannot be quantified or concretized in structural terms, the tort cases and commentary provide some evidence of
this unrest among employees at the apex of the labor pyramid.
It is difficult to assess the level of abuse or concern experienced by
those the segmentalists assigned to the subordinate primary sector.
Subordinate primary employees hold unionized production or production-type jobs in manufacturing, transportation, retailing and wholesaling, and utilities. 273 Union contracts typically provide grievance
mechanisms that purport to protect workers from unfair discipline and
other supervisory mistreatment. Furthermore, workers may invoke the
provisions of the federal labor laws if their employer's actions constitute a breach of the collective bargaining agreement,2 74 or an unfair
labor practice, 275 or if their union's representation in the grievance
process is inadequate. 276 The outrage cases provide no barometer of
the success of unionization in eliminating simple control and its abuses
because there arc so few decisions on the merits involving organized
workplaces. 277 Federal law largely preempts the application of the tort
160-177. As an assessment of the political reality, however, it cannot be dismissed. Sre notes
291-317 infra and accompanying text.
272. Srr, e.g., And<>rson, Iouth Employmm/, supra note 3, at 81-85; Daly, supra note II, at
lll,co1.3.
274. Labor Management Relations Act 301(a). 29 U.S.C. 185(a) (1982).
27[>. National Labor Relations Act 8(b), 29 U.S.C. 158(b) (1982).
27tj. Labor Managemelll Relations Act 8(b)(I)(A), 29 U.S.C. 168(b)(I)(A) (1982).
2i7. Srr, r.g.. Blong v. Snyd<>r, 361 N.W.2d 312 (Iowa App. 1984) (machine operator
November 1988]
EMPLOYER ABUSE
347
47
of intentional infliction of emotional distress to claims arising out of

conduct governed by its labor/management regulatory scheme. 278
There is some possibility that unions might nonetheless prove useful
allies to insurgent secondary sector workers because of a desire to increase their membership rolls.
Given the enormous stratification of the white-collar labor force, the
segmentalists' conception of the independent primary category which
ranged from personal secretaries to professionals, 279 has little descriptive utility at this point. It seems reasonable to assume that the contemporary equivalent of the apex of the labor fo~ce would in_clude _f~irly
high-level managers, supervisors, and professiOnals. The1r pos1t10ns
are attributable to their academic credentials, 280 and they also "foster
occupational consciousness; that is, they provide the basis for job-holders to define their own identities in terms of their particular
occupation. " 281 .
Uncontrolled supervisory coercion and threatened job security has
become a source of increased conflict and tension for workers in this
redefined primary independent category. Although bureaucratic control is more generally prevalent in the white-collar work environments 282 some white-collar workers are subject to overt simple
contr~l. 283 Others are subject to simple control but do not know it
until they are disciplined or discharged. At that point the e~ployees
discover that the handbooks and personnel manuals that prov1ded the
trappings of bureaucratic control do not establish rights that the employer will recognize or that the courts will enforce. 284
The combativeness of white-collar workers with regard to their tenure and supervision is strikingly evident in the num~r<?us cases and the
barrage of commentary challenging the rules permlttmg the summary
dismissar of at-will employees. 285 In addition, there are a fair number
of outrage appeals involving high-level professional and management
employees. 286
harassed after manipulating time cards upon supervisor'-s instmctions); Harris v. Jones, 281
Md. 560, 380 A.2d 611 (1977) (assembly line worker harassed because he stuuered). .
278. See, e.g., Truex v. Garrett Freightlines, 784_ F.2d 1347_ (9th Cir. 198?); Olgum v.
Inspiration Consol. Copper Co., 740 F.2d 1468 (9th Car. 1984); Vaestenz v. Flemmg Cos., 681
F.2d 699 (lOth Cir. 1982).
280. /d.
281. /d. at 177.
282. !d. at 181-82.
283. /d. at 178-79.
2"84. See, e.g., McCluskey v. Unicare Health Facility, 484 So. 2d 398 ~Ala. 1986).. .
285. See, e.g., Blades, supra note 31; Summers, Individual Protection Agams: Un;ust DISmiSs~{:
TiTM for a Statute, 62 VA. L. REV. 481 ( 1976); Protecting AI Will Employees Agamsl Wrongful DIScharge: The Duty to Terminate Only in Good Faith, 93 HARV. L. REv. 1_816 {1980) (student author);
Protecting Employees at Will Against Wrongful DIScharge: The Public Polley ExceptiOn, 96 HARV. L. REv.
1931, 1940-41 {1983) (student author).
286. See, e.g., Kirwin v. New York State Office of Mental Health, 665 F. Supp. 1094
(E.D.N.Y. 1987) (psychologist); Reed v. Signode Corp., 652 F. Supp. 129 (D. Conn. 1986)
348
Critical
48
STANFORD LAW REVIEW
[Vol. 41:1
Abuse at the primary independent level can take somewhat different

forms than it does at the secondary market level. Employees who are
accustomed to having autonomy over their work and authority over
others might well suffer emotionally from a loss of independence and
supervisory responsibilities. 287 Moreover, a lack of feedback on their
performance or evaluations not based on the prevailing occupational
norms might also be distressing.2ss
In other respects, the abuse dispensed in the upper stratum of the
labor force does not differ from that heaped out below. For example,
there is a similarity between the complaints black managers are voicing
about subtle, evasive, exclusionary treatment and the complaints expressed by black secondary market workers. Compare the following
statement of black managers' concerns with the quotation taken from
Elijah Anderson's study of marginally employed black youth:289
To get ahead, a person depends on informal networks of cooperative
relationships. Friendships, help from colleagues, customers, and
superiors, and developmental assignments are the keys to success.
Outsiders, or people treated as outsiders (no matter how talented or
well trained), rarely do as well. Black managers feel they are treated as
outsiders, and because of the distance that race produces they don't
receive the benefit of these networks and relationships. Few win bosses
as mentors. Moreover, they rarely get the vote of confidence from
superiors that helps them to move up step-by-step and allows them to
learn the business . . . .290
The racial and sexual nexus may provide a point of linkage between
secondary and primary sector workers. Although minority and female
workers at all levels of the work force seem to suffer similar indignities,
the abuse incurred by highly credentialed, virtually assimilated managers and professionals is more problematic in terms of the American
ideal of equal opportunity. High-level employees may find lawsuits and
lobbying for legislative safeguards attractive alternatives to cultural
resistance and massive disruption. If their own self-interest could be
tied to that of the minority and female workers who labor in the secondary sector, it may be possible to utilize the resources of the former to
(general manager and division vice president); Wells v. Thomas, 569 F. Supp. 426 (E.D. l'a.
1983) (director of hospital personnel); Rinehimer v. Luzerne County Community College,
372 Pa. Super. 480, 539 A.2d 1298 (1988) (community college president).
287. For a situation in which such suffering occurred, see Duerksen v. Transamerica
Tide Ins. Co., 189 Cal. App. 3d 647, 234 Cal. Rptr. 521 (1987) (tort claim dismissed).
288. Plaintiff alleged such distress in Beidler v. W.R. Grace, Inc., 461 F. Supp. 1013
(E.D. Pa. 1978) (tort claim dismissed).
289. See text accompanying note 126 supra.
290. Jones, Black Managm: The Dream Difnred, HARV. Bus. REv., May:June 1986, at 84,
89; ue a/so G. DAVIS 8c G. WATSON, BLACK LIFE IN CORPORATE AMERICA: SWIMMING IN TilE
MAINSTREAM 5-6 (1985); Williams, For the Blade Proftssianal, the Obstacks Rnnain, N.Y. Times,
July 14, 1987, at Al6, col. I; Campbell, Blade Executives and Corporate Stms. N.Y. Times, Dec.
12, 1982, 6 (Magazine), at 37. Su gmn-ally Buckner, IMp Wanted: An Expansivt Definition of
Constructive Discharge Under Tilk 1111, 136 U. PA. L. REv. 941 (1988) (student author).
November 1988]
349
Studies
E1l1PLOYER ABUSE
49
foster an expanded program of grass roots activism by the latter against

the abust!S of simple control.
Conclusions
The coercion that is a feature of simple control and sec~nd~ry sector working conditions cannot but impact greatly on ~he mmonty and
female workers who are subjected to it. ~~ey. ar~ ~1ghly dep~ndent
u on their wage income and their job mo~)lhty lS hmlted .. Lac~mg the
p~otection of union contracts, bureaucratic rules, and leg~.slauve safeuards, these workers rely on an arsenal of informal cu~tural modes and
~ractices in their struggle both to tolerate and .to a~ehorate the ~arsh
ness of work life in the secondary sector. At ~h1s pou~t, the front bne of
the battle against abuse is virtually hidden 1~ the k1tc~ens and stockrooms, and at the word processors and sewmg machmes. Only u_pheaval on a larger scale is likely to produce st~ctural change. To enhst
the resources and cl~ut of primary sector alhes and to gene.rate substantial economic dislocation necessitating employer concessiOn~, the
workers will need a manifesto of their own, o~e that defe_nds the1r cultural practices, asserts the legitimacy of the1r perspe~uve, and .proclaims their entitlement to nonabusive forms of supe~1spry ove~s1g~t.
The next section attempts to translate the cultural cnuque of mmont_y
and female secondary sector workers into a more formal legal denunCIation of simple control.
IV.
A.
FROM OUTRAGE TO A REMEDY FOR "WoRKER HARASSMENT"
Tort Law and Political Struggle to Combat Worker Harassment
If there is to be a reduction in the abuse empl~yed b~ tho~e in ~u

thority in the workplace, it will most likely occur m conJunc~wn ~~t.h
worker struggle that creates or exploits a political and ideological cnsl~
and generates the necessity for compromise _favor~ble to the workers
interest.291 Informal local resistance alone IS unhkely to _be of more
than marginal utility in the effort to curb a~d co':lt.rol prac~1ces that are
embedded in the organization of economtc enuue~ and m the structures of the labor market. Change requires collectiVe protest th.at ex o.penmgs,
d'tsrupts the normal

. or creates matenal
pions
. operation. of
important institutions, and attracts _widespread a~tentw_n. Th& obJ~Ct
must be to build upon informal resistance, to. umversahze the confltct
of the workplace, and to shift the focus of ~~e dtspute from the narrowly
economic to the broadly cultural and poht1cal.
d e o f th e pro bl e m it. should be clear

Gtven
the source and magmtu
that litigation is not the answer to authoritative abuse m the workplace.
virtually
'bl e to d etermme
ho w much of a role the law
Stnce
It ts
tmposst
291. Przeworski, supra note 19, at 55; C. BoGGS, supra note 19, at 40-41, 57.
350
50
STANFORD LAW REVIEW
351
[Vol. 41:1
plays in maintaining and legitimating the coercive status quo, 292 it

seems doubtf~l that ~e.rely modifying the law will have a significant
effect on workmg conditiOns. Legal change is more a response to, than
a product o~, political ferment. Moreover, translating the demands of a
movement mto le~lese tends to reduce their potency, while placing
hope on the prom1se of reform through doctrinal manipulations of the
~~m~on law does _little but ~o-opt movement fervor. Premature "legalIzmg of_the conflict '":ould mterrupt the creative development of grassroots resistance and d1scourage the involvement of ordinary people (as
op~osed to legal elites) whose interest and commitment are required if
last1~g advances are to be achieved. Finally, causes of action are not
the 1~eal structural response to unrestrained supervisory discretion;
what 1s needed are mechanisms operating directly in the workplace and
controlle? by the workers themselves. Litigation is not a realistic chann~l of rehef for workers who are still on the job. Additionally, the margmall_y employed are unlikely to wind up as plaintiffs in tort suits with
sufficient frequency to make the threat of litigation an effective check
on employer mistreatment.
Despit~ these li~itations, common law claims of entitlement might
be useful m e_n~ancmg local worker resistance and fostering broader
movement actlVIty. 293 Legal rhetoric which incorporates the lessons to
be glean_e9 fro~ the informal culture of workers could provide coherent rallymg p~mts aro~n? which the workers' struggle might be more
broadly orgamzed. Judicial assertions of the legitimacy of the workers'
cause would supplement the positive assessment group mores and values alrea?y pro~1de. 294 Even if invoked in a losing effort, legal claims,
comm~mcated m ways that are accessible to a lay audience, might be
useful m spreading the word of resistance among otherwise isolated
communities. Victories, however limited, should"'fuel optimism and
generate greater local participation. 295 Touting the legal merits of info_rmal worker challenges to authoritative abuse might even impel some
ehtes to support the workers' cause.
~ak~. no mistake ab?ut the claims being made here regarding tort
la_w s. utility. Tort law will not be the catalyst for worker organizing, .n.or
~Ill It prompt the restructuring of secondary market working condit~ons. Furth~rmore, a ':"~ole~ale incorporation of the workers' perspective on abusive ~upervi_siO~ mto the _law is not likely to occur anytime
soon. The maxims of JUStice and fairness that the law selectively and
292. See note 18 supra.
. 293. .s~e Sparer, Fundamental Human Rights, Legal Entitlemmts, tmd the Sacral Struggk: A
Fnendly Cntzq~ of. the Critical Legal Studies Movement, 36 STAN. L. REv. 509, 560 ( 1984); Calmore,
~XC~~~g the Szgnijicance of Race and Class in Representing the Black Poor, 61 OR. L. REv. 201, 242
294. F. PIVEN & R. CLOWARD, PooR PEOPLE's MovEMENTS: WHY THEY SuccEED How
THEY FAIL 12-14 (1979).
,
295. D. McADAM, POLITICAL PROCESS AND THE DEVELOPMENT OF BLACK INSURGENCY
1930-1970, at 105-16 (1982).
'
November 1988]
EMPLOYER ABUSE
51
narrowly disseminates do, however, affect the messages disseminated

by other institutions. If the workers' counter-manifesto can be formulated with sufficient coherence in the legal context, similar expressions
in other areas of conflict should follow. At the same time, it must be
recognized that legal controversy is symptomatic of broader political
and ideological struggle. Furthermore, any gains reaped in legal battles will not be sustained unless the successes achieved on the expa!lsive political and ideological front are translated into enduring
economic gains. There is accordingly no real contradiction in hoping
for favorable case rulings and at the same time expecting little to come
of them.
In this vein, then, litigation employing a variation of the tort of intentional infliction of emotional distress might be an adjunct of a movement led primarily by workers from the secondary sector. This would
be particularly true if, rather than being a narrow cause of action curbing only extraordinary supervisory misconduct, it were an expansive
one attacking the whole panoply of abuses that might be characterized
as "worker" or "workplace harassment. "296
B.
Building a Counter-Conventional Wisdom From the Workers' Critique
Whether the goal is to give new content and meaning to the tort of
outrage or to mobilize political activity, there must be a policy statement, a declaration of injustice, an inspirational counter-ideology, or a
righteous, gripping, pro-worker response to the prevailing wisdom regarding authoritative abuse. It is possible to extract from the informal
culture of workers an ideal of an entitlement to a harassment-free workplace that is sufficiently coherent and integrated to serve as a basis for
judicial relief and as an agenda for broader activism.
The quest for freedom from abuse on the job is driven by the material conditions of those workers who are subject to coercive simple control. Whereas the courts in outrage cases consider workplace abuse an
isolated, exceptional, situational phenomenon, the structural analysis
of simple control and conditions in the secondary market attest that it is
sufficiently concrete, widespread, systemic, destructive, and avoidable
to warrant political and judicial reform. It facilitates the exf?loitation of
politically and economically unorganized workers by accentuating their
296. The technical changes that would be required are much like those that confronted
the courts when they rejected customary practice as the standard of due care in negligence
actions, see The T J. Hooper, 60 F.2d 737 (2d Cir. 1932), and when they rejected the rule of
caveat emptor which also emphasized the necessity of self-reliance in contracting. See MacPherson v. Buick Motor Co., 217 N.Y. 382. Ill N.E. 1050 (1916). It is difficult to be more specific
about the formalistic contours of the tort of worker harassment. In some quarters, a failure to
propose a specific rule or right to cure a problem having a legal dimension is considered a
f~ilure to treat the law seriously. A doctrinal rubric that carries technical legal frei!liht is ~ot
hkely to have much impact on the aspirations and activism of ordinary folk. If the hberatton
strategy outlined above has merit, then the law is only useful to the extent that it captures, in a
Phrase or a concept, some aspect of the ordinary critical perspective of workers.
352
Critical
52
STANFORD LAW REVIEW
[Vol. 41:1
wage dependency and belittling the worth of their work so as to undermine their ability to demand betterterms and conditions of employment. Moreover, it is a device of oppression that reproduces economic
inequality by compounding racial, ethnic, and sexual prejudice. Finally, because it is so deeply embedded in the structures of the economy and ingrained in elitist ideology and law, only individual
accountability on the part of employers and supervisors will assure that
it is rooted out of the offices and shop floors.
The workers do not have and do not seem to need the benefit of a
structural or systemic analysis to understand the material impact of the
abuse they endure on the job. Their experiences generate an abiding,
collective negative assessment of supervisory mistreatment. Their culture teaches them to challenge the legitimacy and the propriety of abusive authority, and allows them to indignantly proclaim that an
employer or supervisor has "gone too far," "crossed the line," or
"asked more of a worker than the salary she or he is paid can excuse."
The test of inappropriate supervision is very inexact (although no more
inexact than the outrageousness standard of Section 46), but there
seems little doubt that slurs, insults, threats, ridicule, humiliation, exaggerated disparagement, orders compelling subservient behavior for its
own sake, and insensitivity to the personal and social needs of workers
receive severe condemnation.
The workers understand the necessity for alternative standards of
competency, obedience, and loyalty. In the worker's view, conduct in
conformity with the employer's demands is often unreasonable given
their economic circumstances and their desire to transcend the material
and ideological constraints that ensure their subordination. Employers
are aware of this. When workers' "antiauthoritarian" attitudes and
"deviant" actions reflect such rationality, they should not be the basis
for discipline and harassment justified solely by some abstract notion of
employer prerogatives. Yet workers are penalized for objecting to orders, for socializing on the job, and for otherwise subverting the dictates of workplace authority when they could not possibly do their jobs
and maintain their self-respect if they did otherwise. Furthermore, employers and supervisors can out maneuver workers by invoking the conventional wisdom selectively, or by capitalizing oh the "consent" that
work and group cultures generate.
The quest for freedom from workplace harassment demands constant reference to the workers' critique. The critique must be brought
to bear not only on the structural and ideological mechanisms that
sanction abusive supervision, but also on the cultural devices by which
workers adjust themselves to it. Magnifying the significance of the critique should serve as a reminder to workers that the accommodationist
tendencies of group and .work culture should be jettisoned whenever
possible. The object of the enterprise to secure workplace freedom
from harassment is not simply to replace the formal with the informal,
November 1988]
353
Studies
EMPLOYER ABUSE
53
but to preserve and increase the transformative P?~ential of t?e informal as a dynamic force on the local level. The pohucal potenual ~f the
informal cultural modes of resistance depends not only upon t~e1r oposition to but also upon their consciousness of the ways matenal conp
. d om can tum
ditions and the subtle operation of the preva1'l"mg w1s
..
.
.
297
oppos1t10n mto acqmescence.
.
In order to protect minority and female workers fully, abuse tha~ IS
just!fied by a worker's status, class,_ or color of _collar mu~t be considered on a par with harassment that IS overtly :aost an_d se?'1st. V'f orkers
victimized by supervisory conduct that exphctly mamfe_sts a rac1al, ethnic, national origin, or sexual animus have successfully mvok~d. the tort
of outrage,291:1 but the courts have been reluctant to extend s1mdar protection in cases of treatment of a more subtle sort, such as the close
.
.
d
.
299
supervision and reprimands work~rs attnbut~ t? raosm an . sex1~m.
If tlie ascriptive categories were d1screte, or 1f JOb segregat_10n d1d not
make comparisons impossible, or if the same sort of_abusrQe ~~nduct
were not considered an acceptable feature of the workmg cond1t1~n~ of
secondary market workers whatever their skin color o~ sex, th~n mslsting that objectionable supervisory condu_ct be cat:gonzed as ~1ther the
product of white supremacy or male patnarchy_ m1ght be a fruitful exe~
cise. The reality of the subordination of minor~ty an~ female workers IS
otherwise, and the workers' critique reflects th1s reahty. Moreover, the
absence of a multidimensional anti-harassment challenge furthers employers' ability to avoid judicial regulations.
While linking racial and sexual harassment to "class harass~ent"
would render covertly racist or sexist abuse ~or~ ~ulnerable, 1t may
also have pragmatic political benefits. The ava1lab1hty of cau_s~s ~f action against racial and sexual harassment, a legacy of the CIVIl nghts
movement, has generated expectations that other kin?s of ar~itrary and
capricious employer behavior can be curbed. Protecu~n agamst _worker
harassment should appeal to those who feel that the1r oppress1o? h~s
been ignored because of the attention focused _on t~e cla1ms of mmonties and women. At the same time, however, mmonty and f~male ~?rk
ers should be wary of losing sight of their distinct economic, pohuca~.
and cultural existences. While the resort to class represents a recogmtion of the commonality of poor working conditio~s across colo_r ~nd
gender lines, it is also a deliberate maneuver necessitated by the hmta297. SeeS. ARoNOWITZ & H. GIROUX. supra note Hi, at _105-0~. Cf H. G~AN, Labor
History and th '"Sar/e Question.'" supra note I 04, at 326, 341 (mtervtewer M. Mer~ll hdraws a
distinction between "culture in the sense of tradition'" which is static and "culture m t e sense
of consciousness'" which is dynamic).
h b
298 See notes 46-49 supra and accompanying text. The tort of outrage mtg t e
strength.ened if there were an express acknowledgmen.t of the b_?rr?wing of statutory st~~~
dards Reliance on statutory standards is a well-recogmzed pracuce m tort law. :e~, e-!J.j .
STATE~ENT (SECOND) OF TORTS 286-288(C) (1965) (governing the use 0 egts attve
provisions in determining negligence).
299. See note 52 supra and accompanying text.
354
54
STANFORD LAW REVIEW
Critical
[Vol. 41:1
tions that a strict racist/sexist categorization places on their ability to

denounce the conduct of employers and supervisors (which, as far as
the workers are concerned, remains racist and sexist at its core).
If the full i~plications of the workers' critique are considered, it appears that the Idea of freedom from worker harassment contradicts the
notion, touted by employers and accepted by courts, that the supervisory treatment accorded workers can vary with their sex, race, ethnicity,
and class. For all of their masculine posturing, male employees no
more deserve to be cursed than do female employees. 3oo Blue-collar
factory workers should not be required to tolerate harassing practical
jokes from supervisors any more than white-collar office workers.30I It
is inappropriate to treat female employees as if they were "girls" even
when they refer to themselves by such a term. 302 Moreover, it is wrong
for employers a~d supervi~ors to scrutinize the conduct of young black
employees for stgns of thtevery 303 or to hold their brash demeanors
against them.S04
A~usive behavior that is based on supervisors' supposed understandmg of group modes and mores is improper, and not merely because the underlying assumptions may be e1 ron eo us. 305 It is also
unacceptable because it penalizes workers for their cultural accommodations. to .hostile work and living conditions. Unless they receive
s?methml? m ~~change, workers should not be required to relinquish
etthe.r thetr abthty to adapt to work in a creative and critical way or the
stamma .th~y ~enve when they have succeeded. They should certainly
not be dtsophned for adaptive behavior that is dictated by the dynamics
of ~he work setting. Sanctions attributable to the disparagement of
t~e1r.w<?rk~lace norms and practices should be as subject to scrutiny as
dtscnmmatwn based solely on the supposed inferiority of the cultures
of America's racial and ethni~ minorities. Employers, not employees,
must b~ar the onus f?r changmg patterns of behavior in the workplace
by alten~g the m~t~nal ;~ctors that are characteristic of secondary market workmg cond1t1?ns. 6 For ~xample, if employers want employees
to be more responsive to authonty, employers must use incentives and
not discriminatory punitive measures.
300. Compare B. WILLIAMS, BLACK WORKERS IN AN INDUSTRIAL SUBURB 163, 172 (1987)
(bl.ack factory workers assert masculinity by objecting to abusive language) with text accompanymg notes 61-65 supra.
301. See text accompanying notes 6165 supra; see also C. BRoDSKY, supra note I, at 10.
302. Compare S. WES1WOOD, supra note 105, at 24-25 (term used by female operatives to
emphasize their solidarity) with E. CASSEDY & K. NussBAUM, supra note 120, at 26 (usc of term
by employers means that employees are not being taken seriously). See also J. ROLLINS supra
note 167, at 159-61.
'
. 303. See Anderson, Youth Employment, supra note 3, at 74; Altheide, Adler, Adler & AltheJde, supra note 156, at 118.
304. See Anderson, Employment Programs, supra note 3, at 353-55.
. ~05. See Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment
Dismmmatzon, 21 B.C.L. REv. 345 (1980).
306. See Anderson, Employment Programs, supra note 3, at 355.
November 1988]
355
Studies
55
EMPLOYER ABUSE
The right to freedom from workplace harassment is concerned with

preserving the peace of ~ind an~ emotio~al tra~quility of workers ~y
shoring up the1r economic secunty and remforcmg the power of their
work and cultural alliances. The workers do not and cannot assess the
propriety of supervision based on the amount of individual ~sychologi
cal harm it causes, as tort law does. The severe harm reqmrement of
Section 46 insulates outrageous supervisory conduct from attack and
penalizes those workers who, be~ause of their own personal or social
resources, have the strength to withstand abuse. Thus, the very colle~
tive cultural mechanisms on which secondary market workers rely m
protecting themselves fr~m supervisory ~is treatment become the justification for the perpetuation of authontative abuse. Furthermore, work
and group culture teaches workers that they ought not internalize employers' standards of competency and become too dependent ~pon ~he
approval of the boss. The emotional harm. that results fro~ Ignonng
these lessons should not be encouraged. Fmally, condemnmg an employer's or supervi~or's _ab~sive b~hav~or ~ecause of the e~otional distress it causes carnes wtth It the tmphcatwn that severe dtstress was a
reasonable reaction to the supervisor's or employer's conduct. The attack upon workplace harassment must proclaim the propriety of the
more aggressive responses work and group culture generate. The ~m
phasis must be on the conduct of the empl~yer, not on the suffenn_g
and misery of the aggrieved workers. If thetr mental states are pertinent at all, anger, antipathy, and sullen contempt should suffice. 307
The quest for freedom from workplace har~ss~e~t must look beyond individual harm and address the collect~ve InJUry that a work
group in general may suffer as a result of supervisory abuse. As several
of the outrage cases illustrate, a singl~ strategy of ~yranny and oppression may produce supervisory overstght that vanes from work~r _to
worker and produces different reactions. 308 T~e courts' ~~treme mststence on particularity ignores the fact that abus1ve supe~IsiOn need not
target a single employee but may affect the work group m general. For
example, a group of flight attendants was harassed by passengers after
their employer adopted the advertising slogan, :we re~lly mo~e our
tails for you.":IO!l Yet they had no cause of ~cuon ~gamst thetr employer because none of them was the slogans si:>eCJfic target. Work
groups suffer collectively; they need to act colle~uvely to counter employer exploitation; and they should be permitted to seek redress
collectively.
The demand that work group and minority group attitudes and
307. See, e.g, Richardson, supm note 46, at 269, 275.
308. Ser notes 53-60 and 94-97 supra and accompanying texts.
.
.
309. Doyle v. Continental Airlines, No. 75-C2407 (N.D. Ill. Oct. 29, 1979) (discussed m
Rogers v. Loews L'Enfanl Plaza Hotel, 526 F. Supp. 523, 530 (D.D.C. !981) and ~haffer v.
!'\ational Can Corp., 565 F. Supp. 909,915 (E.D. Pa. 1983)). It is imposs1ble to obtam a copy
of the opinion because the files of the case have been suppressed .
......__________________________
___
-- --
356
56
STANFORD LAW REVIEW
[Vol. 41:1
practices be considered in assessing the impropriety of supervision is

not based on a simplistic assertion of cultural superiority. Young minority workers who are now angry and defiant may drop their emotional defensiveness when material conditions so warrant. Social
activities recognizing the milestones of personal and family life (such as
engagements, weddings, and birthdays) 310 may not be the only occasions on which women workers choose to socialize if they are free to do
so. If the courts were to acknowledge the significance of work and
group culture, those moments of autonomy and the small economic
gains secondary market workers have been able to realize through informal action would be closer to being permanently theirs. Securing
the existing tangible benefits of cultural resistance would not, of
course, mean that the workers' struggle was over. Rather, it should
lead to an expansion of the agenda for freedom in the workplace and
prompt the development of innovations in the informal devices, including the modes of resistance, by which their struggle will escalate.
C. Acknowledging the Interests of Other Allies and Dissidents

Some aspects of the workers' critique of simple control should appeal to primary sector employees. In general primary sector workers
complain about threats to their job security and unfairness in personnel
decisions. These are also among the problems that low-status workers
confront. Whistleblowers and those who have been summarily fired
without just cause from primary independent positions are certainly entitled to a measure of protection.
The common ground low-status workers share with high-level
white-collar employees is limited, however. The claims of supervisors
and managers who have been stripped of authority over others or the
perquisites of superior status are not particularly deserving of the sympathy of secondary market workers.
Moreover, focusing on the claims of those occupying jobs at the lOp
of the occupational hierarchy would disserve the interests of secondary
market workers by perpetuating the notion that job status and the quality of working conditions are inextricably connected. For example,
many workers consider the bureaucratic model of supervision an appealing alternative to the harshness of simple control. :i 11 (Of course,
bureaucratic devices seem preferable to the coercion of simple control
only because they consolidate employer power behind a veneer of consent.312 This hardly recommends them.) There is a tendency to associate the entitlement to bureaucratic safeguards with the skill levels and
professional expertise characteristic of primary sector jobs. Thus, one
organization devoted to upgrading the status and pay of domestic
310. s,~ note 182 supra and accompanying text.
311. See. R. GoLDBERG, sufJrn note 116, at 85-87.
312. Srt text accompanying notes 229-233 supm.
357
Critical
November 1988]
EMPWYER ABUSE
57
advocad~ed tthedcarteastpi~~~f~t~!n~~~~ci~:~::;j;:~~c~~~~
workers
programs tree e
.
.
ts
d
d
ndency and articulated productmty requtremen
reduce wage epde d r
' rk drat is widelu thought to be unskilled
not be deman e lOr wo
r
. . .
f1b
t
can b d b k d The workers' critique of the dtvision o a or mus
must e e un e
b
the
be highlighted with the aim of severing the conneskction r etwe~~n 4
onditions of employment and the nature of the .ta s pe o~e. . .
c It must also be recognized that individual workers ~an be Vl~ttmiz;I~
.
k
wt'th the aid and support of theu supervisors.
by their wor groups
f
k d
up
1 es will reject the accommodauons o . wor an gro
Solme em~ o~~scribe instead to the conventional wisdom regar?ing ~p
cu ture an s
b dinate st6 Such nonconformity With
propriate conductb~y ;ti~~l;~y obje~tionable to the work group if it
group normr.s ma~f re~stance in which they ate collectively engaged. s 17
g
111
~~e~~~n~t~e;:nd, nonconformity rnhight also rethporen~teynt ~:~~~~~;,~

1
d a greater t reat to au
owst~!~ri~~:!:~~~~~ ~~ssident would mean that the group s~t~uldwtooluelrd-
.
. . r d 'ty The converse post ton
ate values that Jeo~ardtze lt_s so. 1 an .
.
Neither choice is parjustify the sup~ress10n of mmond p:~:~fc~:e:;ovetrtent with regard to
~icularly attract;~t ~:~~~:~~een1arge the opportunity and responsi~~~:rg~~u~o~~~r;cf:r creating their own participatory freedom m the
rk h
sment as it
workplace.
The idea of an entitlement to freedom from wo. _er tarals It can do
.
d d to be an orgamzmg oo
is proposed here IS on1y mten e
h .. on of antiauthoritarianism
little more th~n lend c~h.er;,nce ~o t ~ v~~ group culture of unorganthat is exemplified by th~ m o~a.two;nda female workers. The acuity,
iz~d: lo~-skilled, low-~atd ~~~o~ :orkplace critiques cannot possibly
t Furthermore, any gains that
ongmahty, and dy~amtsm o. t e r
be captured by a ~~~gle static st_a~em~n .
roduce must be mainovert political actlVlty or tor~ bugat~on may p k I
There must be
tained through continued resistance m the wor pace.
. l bo~ Racial and Techllological Change, in MY
313. Set Palmer, Howeworlc ond Domestzc A
7 at80 86. Other secondary

T
UBLE
WITH
ME supra note 12
'
f h
TROUBLES ARE GoiNG TO H AVE RO
r
:
, d "SCTI.bl'ng the importance 0 t etr
k
d
h
t
m
"proesswn
m
c
market workers have mvo e .t e e~

. L E ER & L RoLENS, WAITRESS: AMERICAS
work and the amount of skill II reqmres. Su . LD
.
UNsUNG HEROINE 61, 64 (1985).
. .
rem lo ers 10 reduce the level of au314. Furthermore, given the conunumg c!forts of . bp 1.>1 ~tns obvious that workers
ed ~
broad tange o JO s.
~~
h
or a
. 1 rms of their contributions to t e
tonomy and expertise reqmr
should not couch their demands for decent trea~mlendll~thestatus distinctions. Set generally R.
also Th.
assocta., e w
gan'tzc
domestic workers was unProfitability of the enterpnse, a nouon
e euort to or. . n of housework an d 11s re( 1985)
HoWARD BRAVE NEW WoRKPLACE
1
.
.
b
nd
the
comnwrcta
1zauo
dercut by the influx of tmmtgranl 1a ~r aPalmer supra note 313. at 87-89. .
..
moval from the sphere of the home. e~
315. See C. BRODSKY, supra note I, at 147.
ole 300 at 162-65 (describing hosultty
316. !d. at 36-43; JU also B. WtLLIA~S, supra n 've His anic co-workers).
between outspoken black workers and thctr older .fa~s~ 67~ F 2d at 503 (lith Cir. 1982)
317 See e
Mundy v. Southern Bell Tel. & e 0 ,
me)
(harasst~enl foif~WS withdrawal from expense account paddmg sche
358
Critical
58
Studies
STANFORD LAW REVIEW
Critical
[Vol. 41:1
constant local struggle that is an extension of the workers' everyday

existences. The workers must take their critique as they live it and as it
is (re)reflected in the counterideology that is disseminated. from above,
exploit the contradictions thereby created between the real and the
ideal, and extend the vision of what it means to be free of abuse in the
workplace through commonplace cultural activities and attitudes.
V.
November 1988]
359
Studies
EMPLOYER ABUSE
59
red alternatives to the traditional ways of eval~ating the wo~h of~obs

p ld encouraging maximum productivity. Attentwn "!ust be pa to t ose
a~ e endurance and struggle are so much the ordmary stuff of every~ayo~ife that they are too easily taken for granted.
EPILOGUE
As a black person and a woman, I found it extremely difficult to

accept the assumption advanced in the outrage cases that employer
abuse and the emotional pain it causes workers are too subjective,
ephemeral, trivial, and,mundane to warrant judicial relief. Studies of
the working conditions of minority and female workers who hold lowpaying, low-status jobs and are subject to simple control conijrmed my
assessment of the inadequacy of the law's response to the supervisory
mistreatment of ~ubordinates. If the minority and female workers who
experience abuse can, through informal cultural devices, make it sufficiently concrete and objective to denounce it, resist i~. and cleverly subvert it, then the courts are without excuse. The analysis of simple
control and secondary market working conditions adds weight to the
workers' assessments. The courts' view of the inevitability of the status
quo is not universally shared. The workers do not seem to be completely resigned to their fate as harassed subordinates, nor do they appear to be totally beaten down.
To the c~mtrary, there is evidence of resistance everywhere. Two of
my colleagues recently represented a group of black employees who
work in another part of the university and who have been the victims of
racial, sexual, and general harassment at the hands of a white male supervisor. The bureaucratic mechanisms of the university seemed incapable of providing them with much relief. Even threats of physical
violence directed against one of the women did not produce an immediate response. My colleagues report that the employees resorted to
informal mechanisms to make their work lives safer. They had a telephone grapevine by which they alerted each other of the movements of
the supervisor, so"that he would not catch them plotting against him, so
that they could avoid contact with him, and so that they would know
that he was gone for the evening and they had survived another day.
There is no adequate justification for society's abandonment of
these workers. Their critique of their working conditions should have
the benefit of a formal articulation at the highest levels of visibility and
legitimacy, and the overt and covert resistance they are brave enough
to mount on their own behalf should receive the support and sanction
of those interested injustice in the workplace. The workers themselves
have done, and will continue to do, the hard work. They have already
conceptualized the problem and made it discrete. They have also sup-
.a
Part IV
Legal Practice
[9]
BUILDING POWER AND BREAKING IMAGES:
CRITICAL LEGAL THEORY AND
THE PRACTICE OF LAW
PETER GABEL* AND PAUL HARRIS**
INTRODUCTION
Most lawyers on the left have a pessimistic view of their own political
role in bringing about fundamental social change. Some think that the law is
simply a tool used by the ruling class to protect its own e<;onomic interests, a
view which by definition means that no important gains.can be won in the
legal arena. Those who believe this tend to relegate themselvesto the role of
protecting oppressed people against the worst abuses of an unjust system
while awaiting the development of a revolutionary movement "at the base."
Others graduate from .law school believing that meaningful reforms can be
won through legislative and judicial action, and often devote several years
of hard work for little pay to the goal of getting people more rights. But they
then discover that the expansion of legal rights has only a limited impact'on
people's reallives. and that even these limited gains can be wiped out by ;t
change in the political climate. The consequence is that by their mid-thirties
many lawyers have either lost their early idealism or have had their original
cynicism confirmed. And even the most committed find themselves at a loss
as to how to integrate their politics with their everyday work as lawyers.
In -this Article we present a more optimistic- approach to radical law
practice that is based on a view of the legal system different from those
described above. We reject both the orthodox MClrxist view tllat the' law is
simply a "tool of the ruling class" 1 and the liberal-legalist view that power Professor of Law, New College of California School of Law, Sim Frandsco; Mem
b~r. Organizing Committee, Conference on Critical Legal Studies; ).D. Harvard, 1972 .
.. Attorney. San Francisco Community Law Collective; Former President, National
lawyers Guild; J.D. Boalt, 1969.
The authors would like to thank Abby Ginzberg for her valuable substantive suggestions
and for an excellent eait of the final draft.
1. The "orthodox Marxist" view is commonly called "instrumentalist" because it see~
the law as an instrument of power used directly by the State to serve the interests 'Of domimint
grou'ps. This outlook is reflected in claims that judges routinely reach outcomes that favor
the wealthy while pretending to apply the law neuttally to the parties before them. Another
version of the instrumentalist position argues that legislators and judges invent legal rules
that bring about socioeconomic consequences which benefit those already in power. Here the
claim might be, for example, that the developmerit 'of contract law in the nineteenth century
was intended to lend State power to the enforcement of exchange-transactions, thereby
facilitating capital accumulation.
Instrumentalist thinking is false because it misunderstands the relationship between the
elaboratiOn of legal ideas and the maintenance of social hierarchies. Hierarchical social
relations are fashioned and reproduced principally through cultural conditioning rather than
thro\l~:h the direct use of force. One element of this conditioning proces~ is the creation of
legal ;oncepts and doctrines to establish the political legitimacy of the existing order. Judidal
369
364
370
REVIEW OF LAW & SOCIAL CHANGE
365

1982-831
CRITICAL LEGAL THEORY
371
(Vol. Xl:369
less groups in society can gradually improve their position by getting more
rights. I.nstead we argue that the legal system is an important public arena
through which the State attempts-through manipulation of symbols, images. and ideas-to legitimize a social order that most people find alienating
and inhumane. 2 Our objective is to show the way that the legal system works
at many different levels to shape popular consciousness toward accepting
the political legitimacy of the status quo, and to outline the wavs that
lawyers can effectively resist these efforts in building a movement for-fundamental social change. Our basic claim is that the very public and political
character of the legal arena gives lawyers, acting together with clients and
fellow legal workers, an important opportunity to reshape the way that
people understand the existing soc:ial order and their place within it. 1
Our perspective on the nature of the legal svstem has been stronelv
influenced by the work of the Conference on Critical Legal Studies, whlch
over the last five years has been developing a new critical analysis of the role
of law and legal institutions in maintaining the status quo.~ The actual legal
strategies that we propose, however, have emerged principally from the
efforts of practitioners within the National Lawvers Guild who have struegied to discover new forms of legal practice thar" would go beyond a purely
defensive or reformist stance. This Article is a first attempt to link the
theoretical advances made by the Conference with the accumulated practical
experience of creative Guild attorneys, and in so doing to outline a new
opinions play an important part in this process of legitimation because the rules which thev
enunciate assert that existing social norms ar.e the consequence of rights and obligation~
established through legitimate or just political processes. And one means of reinforcing this
appearance of legitimacy is through applying these rules in a more-or-less even-handed wav.
Since the rules express (and help to constitute) existing hierarchical norms. it is the relativeiv
neutral applic.ation of these rules that best serves to reinforce the apparent legitimacy or th~
existing social order in people's minds. The function oi law is thus not so much to en!orce
existing social relations as to legitimize them, so that eniorcemem by State power 1s largeiy
unnecessary. This is not to deny that the constant threat oi force and the occasional use of 1t
play an important part in both the direct control of dissident groups. and in generaumz
feelings of powerlessness that lead people to want to find justifications for the status quo.For an excellent and more detailed critique of the instrumentalist view, see Gordon . .Vew
Developments in Legal Theory, in THE PoLITics OF LAw 281 (0. Kairys ed. 1982).
The "orthodox Marxist" position actually bears little relationship to Marx's own view,
which itself emphasized the ideo1ogical,and mystifying role of law. See Marx. On the Jewish
Question, in THE MAJlX-ENOELS READER 26 (R. Tucker ed. 1978).
2. For a fuller theoretical presentation of this view using phenomenological and psychoanalytic methods, see Gabel, Reification in Legal Reasoning, 3 RESEARCH tN LAw AND
SoctOLOOY 2S (1980), reprinted in MARXISM AND LAW 262 (P. Beirne and R. Quinney eds.
1982).
3. See generally Klare, Law-Making as Praxis, 40 TELOS 123 (1979).
4. The Conference on Critical Legal Studies is a group composed primarily of law
teachers, lawyers, law students, and social scientists who are developing a critique of the legal
system and legal education. The group met first in 1976 and has held conferences at least
annually since then. Those interested in a bibliography or membership information should
write Mark Tushnet, Georgetown University Law Center, Washington, D.C.
theory of practice that can be of value to lawyers who often lack the time or
opportunity to situate their work within a broad politi~al context. .
.
The work of the Critical Legal Studies Conference IS closely aihed wtth
the neo-Marxist social theory that has gained increasing influence in the
United States and Western Europe since the rise of the New Left in the
1960's. A central feature of this strand of radical thought has been a shift of
focus awav from the tendency of classical :vtarxism to explain all aspects of
social life ~s resulting from "underlying" economic factors. such as ownership and control of the means of production. While not disregarding the
importance of economic factors, neo-Marxist theory places much ~rea~er
emphasis on the role of social alienation in shaping the contours ot. soc1a~
life and argues for a theory of politics that makes the overcommg ot
alienation a central political objective. 5 The source of alienation in capitalist
societies (although by no means only capitalist societies) 6 is to be f~un? in
the prevalence of hierarchy as the dominant form of social orgamzauon.
The nature of this alienation is best described as the inability of people ro
achieve the genuine power and freedom that can only come ~rom the sustained experience of authentic and egalitarian social connecuon. Th~ predominance of hierarchy in both public and private life leads ro a protound
loss of this sense of social connection because it breaks down any possibility
of, real community, and forces people into a life-long serie~ of isolating rol~s
and routines within which they are unable to fully recogmze one anorher m
an empowering and mutually confirming way. Instead. people co~e ro
experience one another as powerless and passive in rel~tion to ~he hierarchies within which they live and work, and, because thts collective powerlessness is manifested throughout the social order, individuals internalize
this powerlessness in the formation of themselves. Alienation and powerlessness therefore become a self-generating source of social repression that
leads to the reproduction of class, race and sex hierarchies from generation
to generation.
5. This shiit in emphasis characteristic of neo-Marxist thought IS evidenced ~n the
psychoanalytic Marxism of the Frankfurt School, see. e.g., H. ~ARCUSE. ERos .... No C!\ IL!Z.~
TION ( 1955). and in the existential Marxism of Jean-Paul Sart~e . see ._P . SART_RE: C~m.oc E
OF D!Al.ECTICAL REASON (A. Sheridan-Smith trans. 1976), and IS tmphctt m socta.hst-temmlst
theory, see CAPITALIST PATRLARCHY AND THE CASE FOR SOCIALIST-FEMINISM (Z. E1senstem ed.
1979).
.
. . .
h
6. Although our focus in this article is on the role o~ the legal sy~tem m mamtammg_ t _e
alienated hierarchies of capitalist societies (with emphaSIS on the Umted _States), we behe\e
that our critique probably applies with equal force to the legal syste~s or state-bur:aucra_uc
socialist societies, which are also characterized by the presence of hter~rchy and ~.:o~lecuv~
powerlessness. One reason for the neo-Marxist rejection of the economtsm ch~ractens~lc or
so-called "scientific" Marxism has been precisely the fail~re of revolu~io~s earned out m the
name of this version of Marxism to fulfill their promises in the socteues _where they have
occurred. Although it would 'be wrong to explain the failure of these rev~luuons by reterence
to the inadequacy of theory alone, it is equally f~l~e to blame these fa.t.lu.~es exclustvely on_
practical circumstances (e.g. "the material condmons_ were n.~t npe. . th_e pressures ot
world capttalism forced the adoption of the bureaucrauc state. etc.). Ltke liberal Ideology
366
Critical

372
[Vol. Xl:369
. !he principal role of the legal system within these societies is to create a
d
pohucal culture that can persuade people to accept both the le
b'l'
gmmacy an
th
e a~pare~~ 10e~tta 1 ~ty of the existing hierarchical arrangement. The need
for tht~ leglttmauon anses because people will not accede to the subjugation
of thetr souls through the deployment of force alone. They must be
_
d d
'f. .
per
sua e. even I ~~ IS only a "pseudo-persuasion," that the existing order is
both JUSt and fatr,_ and th~t they themselves desire it. In particular, there
must. be a way
managmg the intense interpersonal and intrapsychic
conflict that a soctal order founded upon alienation and collective powerlessness repeated!~ produces. "Democratic consent" to an inhumane social
orde.r can be ~ash10n~d only by finding ways to keep people in a state of
~asstve com~hance wtth the ~t~tus quo, and this requires both the pacification of confl1ct and the provtston of fantasy images of community that can
compensat.e fo~ the lack of real community that people experience in their
everyday hves.
The le~al s~stem a~complis~es this legitimation in two main ways. First,
aU f~rms ot sen~us s.octal conflict are channeled into public settings that are
h:av~ly laden wtth n~ual and authoritarian symbolism. Each discrete con~tct 1s. treated as an Isolated "case"; the participants are brought before a
JUdge 10 ~ black robe who sits elevated from the rest, near a tl~g to which
everyone m the room has pledged allegiance each day as a child; the archit~ctur~ of the .c?urtroom is awesome in its severity and in its evocation of
htstoncal tradtuon; the language spoken is highly technical and inte!ligible
only to the ~elect few. who ~ave been "admitted to the Bar." This spectacle
of symbols. ts both fnghtenmg and perversely exciting. It signifies to people
that those .10 power deserve to be there by virtue of their very majesty and
vast learmng. 8 When disseminated throughout the culture (through for
example, .the schools and the media), these symbols help to aenerate a belief
not only 10 the authority of the law, but in authority in ge~eral. They lead
o!
in ~apit~list so~i~ties, _scientific Marxism legitimates bureaucratic socialism bv allowine apologists lor S~Ciahst hterarchies tO assert that since the workers now "ow~ the means of
prod~cuon: . the new s~ate appar~tu~ coul_d ~ot but be benign. The critical edge
the neo~a:xlst wnu~gs to ':"h1ch we reter IS the1r msistence on the primacv of liberating human
~stre as the toundauon of_ radica~ p_olitical ~h:ory. As such, the nee-Marxist critique can be
d1r~cte~ as forcefully agamst ex1stmg soc1ahst societies as it can against contemporary
capuahsm.
oi
7. Marx .~.eeme_d to recognize this when he said that in the legal state, each person
?ec_ot?es a~ 1mag_mary me~ber of an imaginary sovereignty . . . divested of his real
mdtvtdual ltfe and mfused With an unreal universality . " Marx On th e Jewts
, h Quesuon
m
'
T HE M ARX ENOELS READER 26 (R. Tucker ed. 1978).
h" 8_. ~ne o~ the finest descriptions of the role of "majesty" in legitimizing social hierarc tests gtven m H~y, Property, AUlhority, and the Criminal Law, in ALBION's FATAL TREE
.17 (D. Hay, P: Lmebaugh, J_.G. ~ule. E.P. Thompson and C. Winslow eds. 1975). For
Important stu?1es of the relattonshtp between identification with authority figures and repr~sse~ sexuaJtty, see generally S. FREUD, GROUP PSYCHOLOGY AND THE ANALYSIS OF THE EGO
(1.21), W. REICH, THE MASS PSYCHOLOGY OF FASCISM (V. Carfagno trans. 1970).
1982-83]
367
Studies
3i3
people simultaneously to fe~l that they are legitimately "underneath" those

who occupy the positions of power, and to admire and identify with these
figures in their fantasy lives. Taken as a whole, this display of legal symbolism lays the deep psychological foundation for a political culture that
substitutes identification with authority for real democratic participation
and that substitutes fantasies of patriotic community for an actual community founded upon love and mutual respect.
Supporting this tableau of authoritarian symbols is legal reasoning
itself, an ideological form of thought whose distinctive legitimizing characteristic is that it presupposes both the existence of and the legitimacy of
existing hierarchical institutions. 9 In a genuinely humane social order, the
law would express provisional forms of moral consensus about all aspects of
social life, arrived at through a genuinely participatory process. I.n our
current system, such discussion is foreclosed by virtue of the abstract or
removed character of the political process. Instead. the legality of hierarchy
is frozen in ahistorical rules which assume that the social relations expressed
through the existing institutions of property, contrac;t, and the modern
corporation are extensions of human freedom. Thus landlord-tenant law
allows one to argue for increasing tenants' rights, but not to challenge the
very existence of landlords and tenants because it has already been decided
(by founding fathers") that freedom requires the protection of private
property in its current form. Labor law allows workers to unionize in order
to improve their bargaining power relative to owners of capital. but not to
challenge the division of people into laborers and capital-owners that generates antagonistic social relations based upon bargaining power. Blacks can
demand legal equality with whites, but they cannot demand the elimination
ofthe societal conditions that produce institutional racism.
other words, the conservative power of legal thought is not to be
found in legal outcomes which resolve contlicts in favor of dominant
groups. but in the reification of the very categories through which the nature
of social conflict is defined. 10 Since these categories are themselves justified
In
9. For an analysis of the role of "presupposed norms" in legal reasoning and their
experiential origins in the consciousness of judges, see Gabel. supra note 2. at 35. Duncan
Kennedy has shown the way that legal thought helps to constitute these norms in his study of
Blackstone's Commentaries. See Kennedy, The Structure of Blackstone's Commentaries, 28
BUFFALO l. REV. 205 (1979).
10. "Reification" is the attribution of a thing-like or fixed character to socially consiructed phenomena. This process is an essential aspect of alienated consciousness. leading
people to accept existing social orders as the inevitable "facts of life". Reification results
from an authoritarian conditioning process through which people "command" one another
to acquiesce to the status quo by denying to one another the possibility of a better and more
authentic form of social connection. In this way obedience to the status quo becomes a
psychological precondition to recognition as a member of the group. R.D. Laing has shown
the way that reification contributes to the formation of both the normal and psychotic sense
of self within the family. See generally R.D. LAING, THE DIVIDED SELF (1960); R.D. LAING
AND A. EsTERSON, SANITY, MADNESS AND THE FAMILY (1964).
368
Critical

374
[Vol. X1:369
by the utopian imagery of politic~! democracy, the legal system can assert
that .the era of freedom and equalay
has already arrived and that th e status
~uo IS the consequence of genuine popular choice. It is through the ass _

t~on of this legitimizing political imagery with the spectacle of authorit~~~an
m~~l th.at the _legal ~yst~m acq~ires its mass-psychological power. like
reh_giOn m previOus h!Stonc_al penods, the law becomes an object of belief
wh1ch shapes popular consciOusness toward a passive acquiescence or obedience to the status quo.
And yet precisely because the hierarchies of the legal system are sustained only by people's belief in them, legal conflicts of every type can
become opportunities to crack the fa<;ade of legitimacy that these hierarchies
project. The State's strategy of legitimation dictates a counter-strategy of
dele~itimation, or what Gramsci called "counter-hegemonic struggle." 11
The 1dea here is to find a way of working in the legal arena that consistentl-Y
challenges the State's control over the way that we are to both feel and think
about the nature of social reality. The remainder of this Article is directed
toward developing such a strategy.
. First, we discuss the difference between a rights-oriented and a poweronented approach to law practice and argue that the latter approach is
essential to a delegitimation strategy. Second, we attempt to show what a
~ower-oriented approach to law practice might look like. We do so primarIly through the use of actual case histories which reveal the possibilities of
exerting "counter-pressure" against the system in cases with high-visibilitv
political content (major political trials or nationally significant Suprem~
Court cases), low-visibility political content (an important criminal trial in a
local community), and cases with only implicit political content (a divorce or
landlord-tenant case). Our basic aim is to present an approach to law
I I. See generally A. GRAMSCI. SELECTIONS FROM THE PRISON NOTEBOOKS 275-276. IQ.
Hoare and G. Nowell Smith eds .. 1971). Gramscis main comribution to ~arxist thOUIZht
was to show how dominant groups maimam their social position through the creation-oi
ideologies that have sufficient appeal to win over important segmems of the lower and
middle classes. The word "hegemony" refers to the dominant sway" that these ideologies
are able to gain over the more fragmented and undeveloped ideologies of potemially revolutionary groups. "Counterhegemonic struggle" was his way of describing the effort to
organize potentially revolutionary sectors of the population around a world-view that could
effectively challenge the legitimizing ideologies of dominant groups. In emphasizing the
struggle for consciousness as something distinct from class struggle defined in a narrow
economic sense, Gramsci was among the first to recognize the partial autonomy of cultural
conflict from conflict based upon economic factors.
Like the term "reification," the term "hegemony" is sometimes criticized as needless
jargon that is unfamiliar to most people and difficult to understand. When jargon is in fact
needless. it obviously should be avoided, but sometimes important social phenomena cannot
be described in ordinary language and new or unfamiliar terms must be found to capture
these phenomena in words. The sense of "dominant sway" conveyed in the word "hegemony" and the sense of the flattening-out of possibilities conveyed in the word "reification"
are qualities of experience suppressed in ordinary language, and for this reason these words
become important to the development of an adequate critique of existing social life.
1982-83]
369
Studies
375
ctice that can overcome the split most radical lawyers currently feel
!ega1 wor k , an d to gtve
concrete examp Ies ot
bpratween their politics and thetr
s~ch an approach in a variety of legal settings.
A PowER-ORIENTED APPROACH TO LAw PRACTICE
A first principle of a "counter-hegemonic" legal practice must be to

subordinate the goal of getting people their rights to the goal of building an
authentic or unalienated political consciousness. This obviously does nor
mean that one should not try to win one's cases; nor does it necessarily mean
that we should not continue to organize groups by appealing to rights. But
the great weakness of a rights-oriented legal practice is that it does not
address itself to a central precondition for building a sustained political
movement-that of overcoming the psychological conditions upon which
both the power of the legal system and the power of social hierarchy in
2 eneral rest. In fact an excessive preoccupation with "rights-consciousness"
Zends. in the long run to reinforce alienation and powerlessness. because the
appeal to rights inherently affirms that the source of social power resides in
the State rather than in the people themselves. As Karl Klare and Alan
Freeman have shown so clearly in their respective studies of the labor and
the civil rights movements, tz the long-term effects of a legal strategy based
primarily on the acquisition of legal rights tends to weaken the power of
popular movements because such a strategy allows the State to define the
12. See Klare. Judicial Deradicalization of the Waf?ner Act and the Origins of .\fodern
Legal Consciousness, 1937-/941, 62 :'vi!NN. L. REv. 265 I 1978); Freeman, Legitimt;:m~ Racial
Discrimination Through Antidiscnmination Law: A Critical Review oj Supreme Court
Doctrine. 62 \It:-::-:. L. REv. 1049 (1978). Each of rhese excellent studies sh0\'1'~ in .:ase-bycase detail how rhe Supreme Court can respond to destabilizing ~ocial movements by .:~e:mng
whole new l:mdies oi law that appear 10 recognize rhe legitimacy of the movements demands.
and yet end up validating the ~-ery soctal conditions that rhe movements originally sought to
transform. In rhe case of labor law. Klare describes how the Court's interpretation oi the
Wagner Act gradually reshaped the labor movement's initial demands for greater control
over the workplace into a set of contractual collective bargaining rights which served to
safeguard management power over labor-time and production. Freeman's parallel effort in
the area of race-law suggests that the Court's interpretation of the fourteenth amendment
following Brown v. Board of Education in fact served to maintain the institutionalized
oppression of blacks (in part obscuring the existence of societal racism by pretending rhat
discrimination is the result of isolated individual acts). In each instance, a transformation in
legal appearances was effected while leaving the underlying power relations more or less the
same.
It is likely that neither Klare nor Freeman would assert that legal victories won on behalf
of workers and minorities have been of no value to the people affected by rhem. But the
deeper point !hey make is that whatever economic and social gains were achieved through
these victories were accompanied by the gradual dissipation of the claim for fundamental
alter~tions in the nature of social relations. This is precisely the bargain that the State hopes
10 st~t~e when confronted with direct political action: more rights in exchange for a return 10
PaSS!vny.
Critical
370
376
[Vol. Xl:369
terms of the struggle. By granting new legal rights that seem to vindicat h
claims of the individuals and groups asserting them, the State can suce t de
h
,
cee
over ume In co-opung t e movements more radical demands while " 1
gitimizing" the status quo through the artful manipulation of legal doct;i:~~
A legal strategy that goes beyond rights-consciousness is one that f _
cuses upon expanding political consciousness through using the legal systeo
.
to Increase
peop I,
e s sense of personal and political power. As we will showm
this can mean many different things depending upon the political visibilit~
of any given case and the specific social and legal context within which ~
case arises. But in any context, a "power" rather than a "rights" approach
to law practice should be guided by three general objectives that are as
applicable to minor personal injury cases as to major cases involving important ~ocial iss~es. First, the lawyer should seek to develop a relationship of
genume equality and mutual respect with her client. Second, the Iawver
should conduct herself in a way that demystifies the symbolic authority. of
the State as this authority is embodied in, for example, the flag, the robed
judge, and the ritualized professional technicality of the legal proceedinsz.
Third. the lawyer should always attempt to reshape the way legal contlic~s
are represented in the law, revealing the limiting character of legal ideoloszv
and bringinsz out the true socioeconomic and political foundations of lesz-~1
disputes. Reaching these objectives may have a transformative impact ~ot
only upon the lawyer and client working in concert, but also upon others
who come into contact with the case, including the client's friends and
family, courtroom participants such as jurors, stenographers, and public
observers, and, in some cases, thousands or even millions of people who
follow high-visibility political cases through the media. Of course, anv
particular lawyer's actions in a single case cannot lead to the development o.f
an anti-hierarchical social movement; we believe, however, that if lawyers as
a group begin to organize themselves around the realization of these goals.
their impact on the culture as a whole can be much greater than they
currently believe is possible.
A precondition for the effective implementation of this strategy is for
lawyers to reconceptualize the way that the legal system itself is organized.
Too many of us have tended to accept uncritically the model of the legal
system that we learned in law school, a model that pictures the legal system
as a set of institutions designed to protect and vindicate people's rights. It is
not a sufficient or even an accurate critique of this model to say that the
ruling class controls the legal system and therefore keeps oppressed people
from getting their rights, because such a critique continues to assume that
the legal system is principally concerned with rights-distribution rather than
with the control of popular consciousness through authoritarian and ideological methods (one of which is the belief in "rights" itselt). 13 This mis13. The point is not simply that rights-consciousness inherently implies the necessity of
social antagonism (since rights are normally asserted against others). It is that this very way
198283]
371
Studies
377
taken assumption leads lawyers to spend too m~c~ time on improv~ng "legal
skills" narrowly conceived, and to devote thetr m~ellectual energtes almost
exclusively to the discussion and mastery of doctnne and procedure.
If one looks at the institutions of the legal system from a poweroriented rather than a rights-oriented perspective, the very nature o~ these
institutions takes on a different appearance from that portrayed In the
conventional model. Instead of seeing the judiciary, for example, as an
integrated hierarchy of trial and appellate courts organized f?r th~ purpose
of establishing the proper scope of procedural and substanuve nghts, one
sees diverse Iocuses .of state power that are organized for the purpose of
maintaining alienation and powerlessness. In this per.spective.t~e lo~er state
courts, for example, are designed primarily to provtde admmtstrau~e. co?trol over the minor disturbances of everyday life in local commumues In
order to maintain social order at the local level. It is for this reason t~at
lower court judges are often indifferent to the intricacies of Jeg.al doctnne
and are more concerned with the efficient management of. ht~h-volu~~
court calendars through plea-bargaining and the inf~rmal ~edtatton of ~tvtl
disputes. One might say that at this level the mamfestauon of_ restramed
force and symbolic authority is much more important than legaltdeology as
such and an excessive concern by judges with "the law" would actually
interfere with the rapid processing and control of street crime, evictions, an~
small business matters. Conversely, the United States Supreme. Court ts
primarily concerned with reinforcing the_ legitima~y ~f the ~omm~nt ~a
tional culture through the publication of tdeas. Its Jusuces wnte the~r opinions not so much to guide the lower courts as to educat~ th~ popul~uon a~ a
whole in the proper legal way to think about the insutuu~nal hte~archtes
that comprise the socioeconomic and political systems. And~~ so dm_ng they
help to constitute and sustain these hierarchies, by interpreting soctal c~n
flict according to a form of thought ("constitutional" interpretation) whtch
presupposes their legitimacy.
.
. .
It is only by reconceptualizing the legal system m terms of_these dtstt~ct
ideological levels or locations that lawyers can struggle effecuvely to butld
of thinking about people involves a bizarre abstracting away from one's true .e~perience of
others as here with us existing in the world. An alternative approach to pohncs based on
resolvine differences through compassion and empathy would presuppose tha~ ~eopl~ can
engasze in political discussion and action that is founde~. upon a felt recogmuon o one
another as human beings. instead of concei,ing of the pohucal realm as a context where one
abstract "legal subject" confronts another
.
.f
A enuinely socialist politics would presumably be based on s~ch a v1~w of group _h e,
but ma~y lawvers on the left insist that the use of r!ghtsrheton~ remams neces~ar~ for
effective political organizine today. This may be so: u probably IS the case that m ~om_e
circumstances the demand f~r rights is the equivalent of a concrete demand for power. ut u
~ a mistake 10 believe that one can think and speak in a false a~d alien_at.ed language Without
reinforcing false and alienated perceptions of the ~ature of soc1al reaht}. That ~ne .~:st u~e
the laneuaee of rights in court does not necessanly mean that one must use It wit one s
clients ;nd~in everyday political acti\'ity.
372

378
373

[Vol. Xl:369
the power of popular movements within any one of them. 14 Only such an
analysis could help to resolve such strategic political issues as, for example,
whether tenant lawyers in a local community should focus on organizing
with tenants to obstruct the processing of evictions through local housing
14. Reconceptualizing the legal system as diverse locuses of power which function in.
radically distinct ways also allows one to make sense of legal phenomena that appear
contradictory when viewed from within the framework of the conventional textbook model.
Plea bargaining, for example, appears in the conventional model to contradict the elaborate
attempts of criminal law and procedure to assure that an accused is convicted only of the
particular crime for which he or she is actually responsible. But this apparent contradiction
evaporates if one realizes that the doctrinal structure of the criminal law is not reallv
supposed to have anything to do with the routine negotiation of guilty pleas that occupies
ninety percent of what goes on in local criminal courts.
The liberal theory of criminal responsibility and its attendant doctrinal manifestations
(for example, the requirement of "mens rea") are simply a particular component of the
structure of liberal thought generally. Like the law of contracts, criminal law doctrine
signifies that the social order is made up of a multitude of discrete individuals. each of whom
is equally free and therefore equally responsible for his or her actions. And like the law of
contracts. it also presupposes the legitimacy of the existing distribution of property, which is
itself justified by the same principles of freedom and equality (unequal distribution resulting
from lack of merit or bad luck). The distinct ideological purpose of the criminal law is to
associate guilt" with voluntary actions that violate the liberal belief-system. The criminal
law is therefore not directed principally to the criminal, but to the law-abiding citizen. It is
not intended to control criminal behavior directly but to foster both a generalized obedience
to existing authority and an identification with this authority through the fashioning of mass
support for "punishment of the outlaw." At this ideological level the criminal law has.
roughly the same function as T.V. cop shows; it transmits images of the guilty and the
innocent mind.
.
At the level of the plea bargaining system, however, the law becomes merely the
currency of an infinite series of "deals" through which the state administers the concrete use
of force. Lower court judges, prosecutors, defense counsel, police, bailiffs and court clerks
are not interested in the liberal theory of justice (except in their private capacities as
"citizens"). They are interested in the processing of local stability. For them an alleged
burglary becomes just another "111.5' . and the manner in which the defendant is processed
is shaped not by ideological abstractions. but by concrete structural relationships among
concrete social groupings which order the flow of people from the "street-system" through
the "court-system" to the "jail-system" and finally back to the "street-system." The police
understand that their role in this process is to direct their resources efficiently so as to keep
the lid on unassimilated communities, to strike the correct balance between random stops on
the streets to check identifications, mere disciplinary observation (car patrols), and actual
arrests. And it would be only a slight overstatement to say that no one cares who is "guilty"
or "innocent" within the meaning of the criminal law because everyone, including defense
attorneys, is preoccupied solely with getting the requisite number of people in and out of the
"force-bureaucracy," or in other words with doing their job. Whereas the criminal law is
aimed at the psychology of the middle classes in their "civic" capacity as "good citizens,"
the plea bargaining system is designed to assure the subdued administration of physical
power in concrete local settings.
The relationship between the criminal law and the plea bargaining system is that the
latter is legitimated by the former-not by its compliance with the principles of the criminal
law but by its psychological association with these principles as they are embodied in the
symbolic authority of the police officer, the robed judge, and the "official" character of the
courtroom itself. Thus, while the defendant is hustled through a series of rooms and
buildings by armed men, the public is meant <o see "The Law" in action.
!982-83]
379
collective bargaining over lease contracts with big

courts, or engage lfn more rights through individual appeals and reform
.
.
d"
.
d l ds or press. or f a priority on an issue like thts
lap
reqmres . . tscusston
. . or
t" on The semng o
b
huga 1g aroups
.
o f I aw yers and tenants in particular communmes
.
d a out
amon "
h will generate more political consc10usness an power
whether one approac h 1 than would another. Similarly, it is doubtful that
among tenants as a whoavee much impact on the Burger Court's shaping of
. . al lawyers can
. 1
cnmm
. o f-the causes of crime so long as they .unreflecuve
opular
percepuon
. Y
h
ng
an
endless
series
of
search-and-setzure
mouons
t. e "tPthetr
. acuons
.
to argut
b f" t' h
l
.lmtmpty courtrooms an d filing invisible amicus briefs for. the
f . ene .lt . o t et
me
. . If the Burger Court is aiming the rhetonc o 1ts optmons a
Court maJ~nty.
I ft lawyers must theorize about how to use their cases
ass consciousness, e
.
d"
d h
m
to contest the Court's world-view m the me ta an ot er
as opportunmes
. . d
d
but in
1s Certainly some of this theonzmg oes go on to ay,

Pubhc contexts.
.
"1
"
lk
I
"
amone:
ay So long as lawyers pnman Y ta
aw
_
an unsystemauc w

f 1 1 d ice
1 and limit their perception of work to the gtvmg o ega a v
themse tvhes
alone,
ey are unwittingly following the State's theory of how they should
prf!Ctice.
0
II
COUNTER-PRESSURE IN HIGH- VISIBILITY POLITICAL CASES
AI h 0 h a central objective of this article is to argue tha~ all legal ca~es

t ~algly empowering the classic political case remams one whtch
are .potenu.d
'
emerges from a social cond ublic attention
because lt
~~~~~~~t~a~s:;:ad~ achieved high visibility in the ~~blic ~onsciousness.
h cases in recent years include the polmcal mals that arose
Examp1es o f sue
d h
Supreme Court
h
f the student and anti-war movements. an t e many
~::e~ that have emerged from the civil rights and women's movements. Sue
n unique possibilities and also difficulties for the lawyers. and
cases coma1
.
n on rhe leaal
clients involved in them, because rhe aim 1s not on1Y to w_1
. "'
.
. d by the case but to speak for the movement Itself. Prectsely
1ssues ratse
1
h has
because the State's objective is in part to defuse the polmca energy t at .
given rise to the case, the legal issue is often one wh~ch deflects attenuon
from and even denies the political nature of the conflict.
IS Right wing lawyers and politicians have done this effectively in <7~ifofrniap,ubuslt"icnlgy
..
al"f
s me Court
as opportunmes or
liberal criminal law dec1s1ons of the <;: 1 ornta u~re
ld .
The consensus formed in
disseminating an anti-crime/pro-family/pro-Amen~ war -~~ew.roposition known as "The
part through this campaign has led to the passage o a state-wl e ~ .
h sco e of the
Victim's Bill of Rights" (significantly restricting bail, p~ea bargammg, a~~ot n~ar-s~ccessful
exclusionary rule), to the election of ~ ultra-conservauve governor a;he campaign against
.
"th the idea
attempts to recall Chief Justice Rose Btrd and three of her colleagues.
Bird, who is a single woman, was used to fuse the idea of being tough on cnme WI
that feminism is destroying the family.
0
374
380
[Vol. XI:369
A. The Chicago Eight Trial

Pe:haps, th~ clearest example of this "deflection" was the so-called
conspiracy tnal of the Chicago Eight, in which the issue as defined bv the

prosecutor was whether the defendants who had h 1 d
antiwar demonstrations outsid
.
e_pe to orgamze the
1968 h d
.
e the Democrauc Nauonal Convention in
olitic:l r:ons?tred. to cross state lines Wtth the intent to incite a riot.~~ The
~ietnam ~:~mg of the de~onstrations was to challenge the moralitv of the
.
and the polmcal process which served to justify it but this
~eantlng wdas, of _course, legally irrelevant to the determination of whether
e a e~e conspiracy had taken place.'7
Usmg a case like this to. increase the power of an existing political
~ho~ehmhentsrequires a sy~tematic refusal to accept the limiting boundaries
Ic Ch
t e tateE'seeks to. tmpose 0 n t he con fl'tct. Had the lawyers and clients
in the
h tcago Ight trial presented a legal defense in a normal prof~ssional
wa~, t ey. would have deferred to the authority of Judge Hoffman and
~?htel~.:ned_ to_ sho~, perhaps with success, that the defendants did not
mten
to mctte a not or did not "conspire" to cross state lines to do so
~ut the lawyers and clients understood very well that even a legal victorv o~
t ese
d terms would have meant a political defeat t'or thetr movement. T.nev
un ersto?d that the p:osecutor's real purpose was to channel the olitic~l
struggle m the str~ets mto an official public chamber, to recharact:rize the
~rote~to.rs as hoohgans, and to substitute a narrow and depoliticized leoal
e_scnpuon of the meaning o~ the Chicago events for their true meaning. "'In
~hishcontext State power consists not so much in the use of direct force- but
l~ t e ~se of the sanctity of the legal process to recast the meaning of the
tsrupuon that took place.
"
Ill
,!li
II
II
II
I
16. United States v Dellinger 472 F .....,d 3n

1972), cerr. denied, 410 U.S. 970
(1973).
""'< 7t h C1r.
I i In rare instances. almost everyone understands the political nature of a .:ase:
.-\11 of us. I think, see the recent Ch
1
.
judicial process. All of us I think s ~cato tn~ as! a defeat tor the integrity of the
system.
,
' ee m t at tna a tawdry parody of our judicial
But it is important to understand th
375
~~rn~~e~;i:~e~:~~:E~:~~u~i~l
0bp~!it~i~da~}v~:ism~~~frc~:r~~~~~c~~t~~= :!i~~
r.
ecomes fundamentally an examin .

f
a ma
innocence becomes almost irreleva~~o;.~ po meal acts and beliefs-then guilt or
opinion instead of legal judgment and th e proce~s becomes a matter of political
open and judicious tribunal beco~es lost~ sense o a courtroom as an independent,
we lost
something
elsel'f too . Wh atever t he ulumate
won And
this case?
Think
of
verdicts, who has really
.
yourse as a young man or woman
. .
..
concern. If you had witnessed wh h
.
.
emergmg mto pohucal
believe that our system was open, f:~r-~r::":d md Chlcagq; whi~h of you .would
come away from this trial with a renewed f~th ~~ o~~lu~~lal~~~~::?f you would
THE TALES OF HOFFMAN ii-iii (M Levin G M N

(quoti g John Lindsay, Mayor of New Yoe;k City).c amee, and D. Greenberg eds. 1970)
381
1982-83)
In concert with their courageous clients, William Kunstler and Leonard

Weinglass were able to reverse the government's strategy and cause it to
backfire. seizing upon the media's coverage of the trial to strengthen the
resistance that had begun in the streets. By openly flaunting the hierarchical
norms of the courtroom and ridiculing the judge, the prosecutor, and the
nature of the charges themselves, 18 they successfully rejected the very forms
of authoritY upon which the legitimacy of the war itself depended. As Judge
Hoffman gradually lost the capacity to control "his" room, he was transformed on national television from a learned figure worthy of great respect
into a vindictive old man wearing a funny black tunic. In the absence of an
underlying popular movement, the tactic of showing continuous contempt
for the proceedings might simply have been an unproductive form of "acting out." But within its concrete historical context, this tactic was the most
effective way to affirm to millions of supporters following the trial that their
version of the meaning of the Chicago protests was right and could not be
eroded by the State's appeal.to a mass belief in autho.ritarian imagery.
B. The Inez Garcia Trial

The importance of this kind of symbolic resistance was demonstrated in
a somewhat different, although equally powerful, way in the two murder
trials of Inez Garcia, which took place almost ten years later during an
intense period in the rise of the women's movement. While the Chicago
Eight defense reveals the way that a total refusal to recognize the legitimacy
of legal aut,hority can in some circumstances be politically effective, the Inez
Garcia trials show that it is sometimes possible to infuse an existing "nonpo19
litical" legal defense with unique and powerful political meaning.
Inez Garcia shot and killed one of the men who helped to rape her.
Twenty minutes after the rape she looked for and found the two men; as one
pulled out a knife she killed him and shot at the other as he was running
away. At her first trial facing a first degree murder charge, she was represented by an excellent male criminal lawyer. He defended her on the
grounds of "impaired consciousness,'' a psychiatric defense which argued
that Garcia was suffering from a temporary loss of conscious control over
her behavior. If successful, such an approach provided a complete defense
to murder. The trial strategy was secondarily aimed at achieving a conviction on a lesser included offense, such as second-degree murder or manslaughter. This strategy was somewhat successful from a legal point of view,
as Garcia was found guilty of second degree murder, and given a sentence
18. See In re Dellinger, 461 F.2d 389 (7th Cir. 1972).

19. !vtost of the details concerning the second Garcia trial come from conversations
between Paul Harris and Susan Jordan. For a discussion of Inez Garcia's first trial and
appeal, see genera_li_v C. GARRY & A. GOLDBERG, STREETFIGHTER IN THE COURTROOM 217-41
(1977).
376

382
Critical
(Vol. XI:369
less severe than the one she would have received for a first-degree conviction.
Politically, however, the defense was a failure: it contradicted the
defendant's belief in the rightness of her own act, and it failed to place
Garcia's conduct in the context of a rising women's movement that was
demanding recognition of the violent effect of rape and sexual harassment
upon women. In her defensive and apologetic posture, Garcia was humiliated by psychiatric testimony that exposed her personal life in a denigrating
way, and offended by the argument, made in her defense, that she was
"sleep~alking" and unconscious of what she was doing. The contradiction
between this legal characterization of her conduct and her true feelings
erupted on the stand when she testified: "I took my gun, I loaded it, and I
went out after them .... I am not sorry that I did it. The only thing I am
sorry about is that I missed Luis." 20 Earlier in the trial, Garcia had reacted
violently to the judge's decision to disallow testimony about the emotional
trauma of rape. She leaped up from the counsel table and said: "Why don't
you just find me guilty? Just send me to jail. ... I killed the fucking guy
because he raped me!"~~ Obviously, after that, the jury could not accept the
attempted portrayal of Garcia as a demure and innocent woman who was so
overcome that she could not be held responsible for her acts.
Garcia's conviction was reversed on appeal because of an improper jury
instruction. ~ 2 In the retrial she was represented by radical-feminist attorney
Susan Jordan. The defense was a creative combination of the traditional
rules of self-defense and the historical reality of the victimization of women
by men. 23 The task Jordan faced was to translate the male-oriented rule of
self-defense into a form that would cap'ture the real experience of a woman
facing possible attack by a man. She also had to combat, within the confines
of the courtroom, the sexist myths that would influence the jurors.
The rule of self-defense is based on one's right to use reasonable force
if, and only if, one reasonably perceives that there will be an imminent
attack. The heart of the defense is the defendant's state of mind-it is
necessary to convince a jury that the defendant acted in a reasonable manner given the circumstances.
20. /d. at 236.

21. /d. at 231.
22. People v. Garcia. 54 Cal. App. 3d 61, 126 Cal. Rptr.- 275. cert. denied, 426 U.S. 911
(1975).
23. See generally Schneider and Jordan, Representation of Women Who Defend Themselves in R.esponse to Physical or Sexual Assault, 4 WOMEN's RIGHTS L. REP. 149 (1978);
Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self Defense, 15 HARV.
C.R.-C.L. L. REv. 623 (1980); Donovan and Wildman. Is the Reasonable Man Obsolete? A
Critical Perspec!ive on Self-Defense and Provocation 14 LoY. L.A. L. REv. 435 (1980-81).
1982-83]
377
Studies
383
In Garcia's situation, the juror's understanding of whether Garcia

d "reasonably" would almost certainly be influenced by cultural myths
acte
h
h
. . .
b ut the act of rape. The rape myt s are t at women mvne It, that they
:n~ourage it, and they like it, and that ultimately the rape is their own fault.
Jordan directly confronted these stereotypes by the creative use of voir dire.
The jurors were questioned individually, one by one in the judge's chambers. Each juror was asked questions which were designed to bring out any
underlying sexist stereotypes. Although this was a painful process, initially
opposed by the judge, and irritating to some jurors, the process paid off.
The final jury of ten men and two women was able to view the rape not as a
sexual act caused by male-female flirting, but rather as a violent assault.
This view of rape as an act of violence was key to the acceptance of the selfdefense theory.
Jordan also faced the problem of Garcia's obvious anger at the men
who raped her. If this anger was viewed by the jury as the motive for her
shooting, then it would negate self-defense and lead to a verdict of manslaughter. The defense, therefore, attempted to show that the anger was a
justified and reasonable response to her rape. Expert witnesses testified to
the psychological effects of rape, especially a rape committed on a latina.
Catholic woman. Instead of the traditional tactic of trying to hide the
woman's anger, the defense affirmed this anger and explained it in human
terms which broke through the male prejudices embodied in the law's
traditional view of the reasonable person. The result was a complete acquittal. 24
The two trials of Inez Garcia demonstrate that in the right circumstances it is possible to win a case with a political approach when a more
conventional legal approach would fail. Inez Garcia took the action that she
did at a time when the women's movement was actively challenging the
forms of patriarchal domination characteristic of man-woman relations
throughout the social structure, and the central symbol of this domination
was the act of fordble rape itself. With a male attorney in her first tri:1i in
effect apologizing for her action and the anger that produced it, Garcia was
separated from the movement supporting her, and indeed from her own
self. In pleading "impaired consciousness" she was forced to deny the
legitimacy of her own action and simultaneously the legitimacy of the
"unreasonable" rage that women throughout the country were expressin.g in
response to their social powerlessness in relation to men. The form of the
first trial turned Garcia into an isolated object of the legal system, a mere
"defendant" requesting mercy from a "masculine" legal structure. Even a
victory in the first trial would have had negative political consequences
because it would have affirmed the wrongness of both her action and the
feeling that provoked it, while legitimizing the authority of a benevolent
State.
24. People v. Garcia, Cr. No. 4259 (Super. Ct. Monterey Cty. Cal., 1977).
378
384
379

[Vol. Xl:369
The most important feature of the second trial was that it reversed the
power relations upon which the first trial was premised. The defense both
affirmed the validity of Garcia's action, and allowed Jordan to join Garcia
as co-advocate for a vast popular movement, to speak to the jury not as a
State-licensed technician "representing" an abstract "defendant," but as a
woman standing together with another woman. Together, the two women
were able to put the act-of rape itself on trial and to address the jurors, not
as ''jurors" but as human beings, about the meaning of being a woman in
contemporary society. The effect of this was to transform the courtroom
into a popular tribunal and to divest the prose~;utor and the judge (who, as
men, could not abstract themselves entirely from the evident signs of their
own gender) of some of the symbolic authority upon which the legitimacy of
the "legal form" of the proceeding depended. This shift in the vectors of
power within the room also allowed the jurors to escape their own reification, to discover themselves as politically responsible for making fl human,
rather than a merely formal, decision based on an application of existing
law. Thus the conduct of the second trial, coupled with the widespread
publicity attendant to it, served to expand the power of the movement from
which the political basis of the case derived, and to delegitimate the apparent necessity of existing legal consciousness. This last point deserves special
emphasis, for breaking through the sedimented authoritarian forms of a
legal proceeding in an overtly political case has radical implications beyond
those of the particular case itself: it signifies that the existing order is merely
possible, and that people have the freedom and power to act upon it. In the
special context of a public trial, such action demonstrates the living disintegration of symbolic State power in a heavily ritualized setting, one that is
normally a principal medium for the transmission of authoritarian imagery.
C. Tinker v. Des lvfoines School District

The conspiracy trials of the middle to late sixties and the Inez Garcia
case illustrate the way that the social relations of the courtroom itself can
become a focus of political struggle, reshaping the way that millions of
people see the authority of the State as well as the political meaning of the
legal issues raised by the trial. A very different type of high-visibility political case is the major Supreme Court decision through which the State
attempts to mediate potentially volatile areas of social conflict ptincipally
through the use of ideas. Of course the manifestation of symbolic authority
is of some importance to the ideological power of Supreme Court decisions
because without the background image of the black-robed Justice sitting in a
far-off chamber, the decisions themselves would lose some of their mystique. But the locus of political struggle in, for example, abortion, affirmative action, and labor cases is essentially different from that of the conspiracy trials because there is no concrete setting, like a courtroom, in which
State authority is manifested directly. Instead, the issues raised in these cases
1982-83)
385
are debated in the media, while the Court itself remains invisible to t~e
ublic eye. Since the locus of struggle takes place at the level of. public
~ b te about ideology per se, lawyers ~ust engage the struggle at this level,
a~dacontest the State's attempt to limit the way the issues raised by these
cases are publicly understood.
.
A good example of how this kind of ideological .struggle might be
waged is suggested by the history of Tinker v.. Des Moinefsdlndepende~t
c munity School District, a case which began m a lower e era court m25
in 1965, but was not finally decided by the Supreme Co~rt until1969.
1
The case arose when the four children of the Tinker !a~Iiy :vore black
bands to their schools to mourn for those who had died m Vtetnam and
arm
. o.fh
to support Robert Kennedy's proposal for an dr
m e mite .extension
t e
<:;hristmas 1965 truce. 26 When the local school board. re~etved word ?t the
protest, it quickly met and passed a regulation forbiddmg the weanng of
armbands in school. The principal legal issue presented by the case was
whether the first amendment's guarantee of freedom of speech protected the
children's right to wear armbands in school. But the symbolic and political
dimensions of the case. when seen in the context of the time, were tar more
significant than this" narrow and abstract statement of the legal issue suggests.
.
In December of 1965, two central political dynamics were occurnng
simultaneously in American fife. One was the developing momentum of the
anti-war movement, which was seeking to break through the wall of silence
on foreign-policy issues that had been a legacy of the anticommunism of the
1950's. The other was the student challenge to authoritarian, administrative
control of the educational system, a challenge that had begun in spectacular
fashion a year before with the rise of the Free Speech Movement at Berkelev. The Tinker case offered a unique opportunity to further both of these
m.ovements because it brought to public consciousness two powerful images
of resistance to the status quo: that of a midwestern family banding together
to peacefully express their opposition to an immoral war and to mili.tarism
in general; and that of innocent and unafraid school children challengmg the
power of fearful adults to control the public space of the school classroom
in the name of order and discipline. To understand the political potential of
a case like Tinker, one must remember that wars like the one in Vietnam do
not result simply from economic or political "interests," narrowly conceived; they result also from the disciplinary hierarchies of the school-
::a
25. Tinker v. Des Moines lndep. Com. School Dist., 258 F. Supp. 971 (S.D. Iowa
1966). a]J'd by an equally divided court, 383 F.2d 988 (8th Cir. 1967), rev'd, 393 U.S. 503
(1969).
26. The four children ranged in age from 8 to 15. The Tinkers' father was a minister
who worked for the American Friends Service Committee. Another.plaintiff. fifteen year old
Christopher Eckhardt. also wore an armband. His mother was an official in the Women"s
International League for Peace and Freedom.
380

386

[Vol. XI:369
system, which train students to become passive recipients of the dominant

ideology through which those interests are justified, and ultimately lead
students to accept their induction notices without protest. During the fouryear period in which their case was litigated in the appellate courts, Mary
Beth Tinker and her siblings became important symbols of resistance to the
passivity and conformism which made the war possible in the first place.
When a case with this kind of political potential reaches the appellate
level, the most important element of a counter-hegemonic strategy is to
expand the base of liberating and oppositional energy generated by the
case's public exposure. This means doing more than writing a brief on legal
doctrine and making a ten minute argument in an empty room. It may
mean, for example, attempting to organize meetings around the country
with progressive high school teachers and student groups, developing support protests, and actively seeking media coverage which gives a progressive
analysis of the underfying issues.
The response of the courts to such potentially controversial cases often
conforms to a two-stage pattern of containment;. first, deny outright the
legitimacy of the plaintiff's claim and hope that the movement dissipates in
the face of a clear assertion of authority; then, if denial fails, grant the claim
so as to appease the challenge to the State's authority, but do so in the form
of a "right" which can be integrated into the dominant ideological framework. To the extent that a left strategy limits itself to a civil liberties
approach without concentrating on the broader antihierarchical potential of
the case, the State will be able to defuse the energy released at the beginning
of the suit regardless of whether the plaintiff's right is ultimately vindicated.
This description of judicial containment arguably explains what happened
in Tinker. The initial response of the federal district court was to firmly
support the school board's ban on armbands in the name of institutional
control. The court emphasized that "the disciplined atmosphere of the
classroom" 27 was entitled to "the protection of the law"; 28 the very fact
that "debate over the Viet Nam war had become vehement in many localities"29 made the school board's action all the more reasonable. Had the
Tinkers not felt the support of an underlying social movement, they might
well nut have appealed, either out of respect for State authority, or because
of legal expenses or simple discouragement. But in 1966, student rebellions
of every type were increasing in number and intensity, from draft-card
burnings to sit-ins to the blockading of troop trains. And the energy reieased
by the movement led to a broadening of student demands that included not
only an end to the war, but a radical transformation of the entire social
order. In this context the Tinkers did appeal, and it was in the midst of this
27. Tinker. 258 F. Supp. at 973.

28. ld.
29. !d.
1982-83)
381
387
generalized crisis of legitimacy that the Supreme Court had to decide the
case.
The majority opinion in Tinker is an excellent example of the ideological limitations of a civil liberties victory. The Court vindicated the Tinkers'
right to wear armbands in school as a form of symbolic expression akin to
pure political speech, but this right is articulated as a narrow exception to
the presumptive authority of school officials to prescribe and control conduct with regard to all other aspects of school activity. Clothing and
hairlength are specifically exempted from the scope of the recognized
right, Jo and even those forms of expression protected by the decision are
subject to suppression if they are a "material and substantial interference
with school work or discipline." 31 The liberal message thata student.may
wear an armband is thus accompanied by a conservative meta-message that
firmly reinstitutes the essential authoritarian structure of the high school.
One could not have expected more from the Supreme <::ourt, since its
function is to preserve rather than to revolutionize existing institutional
arrangements. Regardless of the decision's limitations, the fact that the
Court was compelled to recognize the Tinkers' claim was an important
victory for progressive forces. Whenever the State recognizes even a limited
new right on behalf of a powerless group, new possibilities for action are
created that can no longer be summarily forbidden. 32 Because the State must
30. 393 U.S. at 507-08.

31. !d. at 511.
32. In order to use the law as an effective tool for building power, people must be aware
of their rights, and lawyers must be available to assist them to organize on the basis of those
rights. A .:oncrete example is provided by a controversy at Mission High School in San
Francisco. (The following is based on an interview with attorney Stan Zaks and legal worker
Bernadette A~~:uilar. l
In !970 three-judge federal court, relying on Tinker. held the California Education
Code sections prohibiting the passing out of partisan and propaganda materials on school
2rounds to be unconstitutional. Rowe v. Campbell Union High School: Zc:ltzer v. Campbell
Cnion Hi2h School; O'Reillv v. San Francisco Unified School Dist.. :-Jo. 51060 (N.D. Cal.
1970). Ro'"we and Zelt:er pr~tected the right of high school students to pass out an underground newspaper. O'Reilly protected the right of students at Mission High School .to pass
oflt leatlets.
Approximately a year after the decision, at the same Mission High School involved in
O'Reilly, Iatino students attempted to pass out leatlets against police brutality and in support
of seven young men accused of killing a policeman. The students were part of an attempt to
organize a political youth group at the high school. They had never heard of Tinker or
O'Reillv.
Ev"en though the administration was aware of the court decisions. the vice principal
confiscated the leaflets, and threatened the students with suspension. These students were not
politically experienced, were at the inception of the organizing process. and certainly had
never heard of the ACLU. The only positive contacts they had with the law were the small
youth group meetings they had attended at the San Francisco Community Law Collective
across the street from their high school.
At lunch hour they went to the Law Collective for help. They were scared and intimidated. A test-case. resolved in their favor years later, would have been useless to their twin
goals of developing student power at the school and of supporting the Los Siete defendants.
/;
I
.382

388

[Vol. Xl:369
respect its own rules in order to preserve its legitimacy, progressive lawyers
a~d students have been able to use th_e new breathing space created by
Tmker to foster and protect such previously unauthorized activit
h
f
d
.
Y as t e
.
pu blIcauon o un erground high school newspapers and the passin,.
t"
s OUt 0
. al 1ea fl ets on school property. 33
po1me
Y~t. j_ust ~s the courts at first refuse to recognize new and potentially
~es~abiiiZI?,g n~hts, they resp~nd to the granti~g of such a right by trying to
limit the regiOn of power protected by It through the time-honored
process of distinguishing cases. Distinguishing cases is a central stabilizing
feature of legal reasoning because it allows judges to conceptualize new
as_se~ions of power, sanctioned by the "Creation of the new right, as fitting
wuhm the background hierarchical categories out of which the new right
was granted. For example, when a group of Pawnee Indian students sought
to wear long hair as an expressi_on of cultural identity, the Tenth Circuit ;as
able to i?nore the ~ossibility of protecting their behavior as political speech
under Tmker, and mstead relegate it ro the vast background area of school
34
board control. As a general rule, the more the collective power of a social
~o~em~nt . subsides, the more courts feel able to use the technique of
d!stmguishmg cases to reassert the hegemony of the dominant ideological
framework. In spite of the Tinkers' personal victory, the social hierarch-v of
educational institutions continues to condition and limit the capacit~ of
stude~ts to think freely a~d to express themselves. It -remains an ~pen
question how much of an Impact a case like this might have had if there
existed a left-legal intellectual community that self-consciously sought to
press the range of public debate on such cases far beyond the limits imposed
by existing legal ideology.
Taken together, the Chicago Eight trial, tbe Inez Garcia trial and
Tinker illustrate the importance of understanding what we earlier call~d the
However. the Tinker and O'Reilly decisions. combined with the availabilitv of communitv
lawyers. provided them with immediate leverasze.

Several phone calls later the principal ani vice principal walked across the street to the
Law Collective. They apologized for the "misunderstanding," assured the lawyers that the
students could pass out their leaflets, and exited, commenting about "outside agitators."
The students had a new sense of their power to confront the school authorities. Thev realized
~hey could use the first amendment as a weapon to help them change the power relitionships
m the school and in the Mission community.
33. See, e.g., Bright v. Los Angeles Unified School Dist., 18 Cal. 3d 450, 134 Cai.Rptr.
639, 556 P.2d 1090 (1976). The California Supreme Court in Bright recognized Tinker as "a
landmark decision" in the area of student rights, stating that Tinker "boldly" proclaimed
stu~ents' freedom of speech in the school environment: as contrasted with the "older and
until Tinker, the prevailing view [which) regarded the school administration's authorit;
nearly absolute." I d. at 456.
34. See New Rider v. Board of Educ. of lndep. School Dist. No. 1. Pawnee County,
~kla., _480 F.2~. 693 <,lOth_ Cir.), cerr. denied, 414 U.S. 1097, 1099 (1973) (Douglas, 1.
dissenting) _(pe~mon_ers ha!r-length was meant to "broadcast a clear and specific message
[of] pnde m bemg lnd1an ... clearly bring[ing) this case within the ambit of Tinker").
----
------ -----
1982-83]
383
389
"ideological location" of a given case in formplating an effective political

approach. Because they were all high-visibility cases, each was potentially
capable of influencing the consciousness of very large numbers of peop~e
and of strengthening their confidence in the power of counterhegemomc
public action. But the cases were also very different _in terms ?f how th~
authority of the State was manifested, and each reqmred the discovery ot
widely divergent strategies for realizing a common objective.
lii
CouNTER-PRESSURE IN Low-VISIBILITY PoLmCAL CAsEs
In 1971 the Latin community in San Francisco's Mission District was

experiencing "brown power" and intense organizing by radical and liberal
groups. The most effective radical organization was called "Los Siete"
("The Seven"), named after seven young men who had been acquitted of
murdering a policeman after a long, contested trial. Los Siete ran a communitv clinic, organized a formidable labor caucus, pushed for community
co~trol of police, and published a community newspaper.
Los Siete's members were often harassed by police who operated out of
the then infamous Mission police station. On a busy shopping day, two of
Los Siete's most active members, a latin man and a black woman. were
selling their newspaper Basta Ya, on the sidewalk in front of the largest
department store in the Mission. The store manager called the police. When
the police arrived they berated the young man, called him "wetback" and
told him to go back to Mexico. The police confiscated the papers and
arrested"both the man and the woman for trespass, obstructing the sidewalk,
and resisting arrest. 35
There was no publicity of the arrest. The store owners saw the arrest as
a vindication of their right of private property. The police viewed it as a
demonstration of their power in the Mission district and a warning to
community groups. The district attorney's office treated the case as a routine misdemeanor. The defendants felt the arrests had been an act of intimidation and racism. The woma~ was treated as a prostitute at the City Jail,
examined for venereal disease and put in quarantine for two days while
awaiting the results of the test. The excuse given for such treatment was that
she had been charged with obstructing the sidewalk, an offense associated
with prostitution.
Los Siete asked the Community Law Collective, a local law office
which acted as "house counsel" to many community organizations, to
defend their members and to help them develop a legal-political analysis of
the case. The attorneys explained that although there was a first amendment
35. The defendants were represented by Stan Zaks and Paul Harris, who provided the
details that follow.
384

390
385

[Vol. Xl:369
issue present, it was doubtful that such a right could be vindicated at the
lower court level. At trial, it would be the defendants' testimony against the
testimony of two policemen, a security guard, and possibly the store manager. Even though the defendants had sold their newspapers on the sidewalk
without harassing store customers, the State's witnesses would place them
on store property obstructing customers, and the police would swear the
latin man had pushed them and refused arrest. The jury would be almost all
white and predisposed toward the State's witnesses. If the trial was before
one of the few liberal municipal court judges, the defendants might receive
thirty days in jail if convicted; if before one of the many conservatives, the
sentence would probably be six months in jail. If, on the other hand, the
defendants were to plead guilty, the district attorney would drop all the
charges except trespass, and would offer a sixty-day suspended sentence.
If the lawyers had acted as apolitical professionals in this situation, they
almost certainly would have advised their clients to plea bargain. First, it
makes sense to accept probation in the face of a likely jail sentence. Second,
preparation and trial would be quite time-consuming and remuneration
would be small. But for the lawyers to have given such "normal" advice in
this context would have made them mere extensions of the system. It is not
in the interests of the State in this situation to send defendants to jail and
risk an increase of organized anger in the community. Rather. the State's
strategy is to break the spirit and limit the options of the community
movement. It is the plea bargain which best accomplishes this purpose, by
simultaneously vindicating the police, legitimating the store owner's property rights, and making community activists feel powerless and humiliated.
Moreover, in offering defendants a six-month suspended sentence, the State
is also offering them a two-year probation period, the obvious effect of
which is to inhibit any future activism. In this context the plea bargain
becomes the iron fist in the velvet glove. and the defense lawyer who
passively participates in arranging such an outcome becomes partly responsible for its consequences.
L" nderstanding the dangers of "copping a plea," the lawyers and clients
attempted to define what was really at issue and to explore a radical approach to. the case. The issue was the exercise of political power, in the form
of selling Basta Ya on the streets of the Mission community. Seiling the
newspaper served three purposes. First, the person-to-person contact was an
effective organizing tool for Los Siete, helping them to build support for
their community programs. Second, the street-corner sales were the primary
means of distributing the paper and therefore of getting the information in
the paper out to the community. Third, the very act of selling their paper in
the streets of the Mission district made the activists feel some power in the
face of overwhelming police authority, and the sight of young Iatinos passing out their radical newspaper helped to create a vague but important sense
of indigenous power in the community residents as well. To maintain this
sense of power it seemed necessary to reject the psychological defeat inherent in the plea bargain, and to risk a trial.
!982-83]
391
.
.
f st to empower their
The tasks facing the lawyers. m :hts case were,d tr ' n the trial. Both
s t as an orgamzauon and, secon ' to wt
clients an.~dL~: f~;t~ered bv an overtly political defense, the first becau~~ a
goals wou
would insist that the defendants were right to be reac mg
political defense .
h
ond because this particular trial could only be
.
.
1
h commumtv t e sec
out tot
e
.
h. '
"legal" definition of thetr acuon as cnmma
wo n bv. challengmg t e narrow
the offensive bv filing a motion to
obstruction and tr~spass. .
The lawyers' ftrst tacuc was to go onr: nds that th; arrest and seizure
suppress the seized newspapers ?n th~ g ou no different from one that any
violau;cf the first amendm~t. Tht~::~:~awb~rgaining had been rejected, but
good defense lawyer wou use o h
'ndicate a legal right as such, but
here the ptrp~s~h:~~:::~~~;::d i~~ :~tions. Surprisingly, the municiphal
rather to ore
.
h to the irritation of the district attorney w o
~vo:Sr~;::~~r~;~~::~t:~:d~~~sive postur~ ~~~~~~~~:.~~~:~~~:a~~ \~~~:n~~
lawyers asked a young corporal~e. attoorfnecyotmnmunity lawyers and corporate

,
f
h
peal The coa mon
prepare. t e ap d th~ ideological pressure on the district attorney s of tee.
lawyer
mcrease
brief and argued the
wr ote an excellent
.
-\!though
the corporate attorney
.
ici al court decision was reversed. 36
case. the mun P
. I l
The first strategic issue was whether to try to
Next came the m~ p an.
.
eo Ie Traditional lawyers are wary
pack the courtroom wtth commumty p f ~hi;d world and "radical" people
of this tactic for fear that the presenbce o . us hostilitY However' lawyers
.
h ry and create su conscto
.
.
will fnghten t e JU
h . advantage by dealing wtth the
etr
.
.
d
owded
courtrooms
to
t
f
can o ten use cr
T
d the community presence in votr dtre, an
jury's anxiet_Y and_ hosutty t~w~~e reconceptions the jurors might have in
by openly dtscussmg. any ne.,at~ntt Due to a lack of publicity it was not
.
m with community supporters, but
opening and/or closmg ~rgum
possible in this case to ftll the co~rt~~~endants from feeling isolated. .
enough were pre~ent to pre~ent the clients' participation in the preparation
and
~~~~~~o;t~t~s:~~:~l~~eth:ot:a~itional view of the lawyer-client relation-
De 't Su er Ct San Francisco. Cal.. 1971).

36. People v. Flores, ~o. 1_7 I I (C~l. ~~P c~mm:nt~d th~t he had never been treated
d . d
Young corporate attorneys
The corporate lawyer m this case JUStifiably
so rudely and had never seen such igno~an~, ~':,l'r~~:rc~n~~c~e~f judges in minor state-court
who take "pro bono" cases are often s oc e Y rate clients they are accustomed to the
proceedings. In their appearances on behalf of corpo ers are tr~ated with great respec~ an~
high-culture civility of the federal courts whedre lbawy
of l'lti'gation This sophistication IS
.
d
h form an su stance
...
. n of the federal courts, whiC are
where careful attention 1s pal to t e .
.
1
1
rt s stems and which therefore
both a cause and an effect of the ~~eologica ocatlo
conceived to be higher in the status-hierarchy than sltatel cotuo nayti'onal legal ideals. For the
osewhat
Y

must present an appearance t hat con. forms more
and clost
he believed to be a mentonous
corporate attorney who worked on this appeal
.
ld .
a world view that had not
. to h1s wor -v1ew,
claim. this case presented a sharp contra d 1cnon
yet made room for judges who were rude and unprepared.
386

392
REVTEW OF LAW & SOCIAL CHANGE
387

[V:ol. Xl:369
ship, the lawyer is defined as the professional who "handles" all legal
aspects of the case without client participation. By treating the client as
someone who cannot understand the conduct of her own trial, the traditional approach increases the client's sense of powerlessness in the face of
the intimidating spectacle going on in the courtroom. In this case the
~awyers took the opposite approach, asking the clients to take an_ active part
m a~! aspects of the case where prior legal training was nor absolutely
required. Thus the defendants wrote voir dire questions and assisted in the
selection of jurors. The lawyers discussed each aspect of the case, explaining
their tactics and incorporating many of the suggestions of the clients. In thi;
manner the clients began to feel some control over the process which the
State had forced them into.
As for the trial itself, a traditional approach would have been to argue
the client's version of the facrs against the State's version, relying o~ a
reasonable doubt defense and keeping the content of the newspaper itself
out of evidence. A more liberal approach would have been to focus on the
first amendment aspects of the case, emphasizing the abstract right of
dissenters to freedom of speech. The radical approach was to stress the
political realities involved; to admit and defend the true nature of Basra Ya,
and ro expose the police department's racism and its attempts ro harass and
intimidate members of Los Siete. 37
The trial ended successfully for the defendants despite the judge's
persistent attempts to ridicule the attorneys and to prohibit their making any
mention of the first amendment. Ja Instead of feeling that they had won by
disguising their politics through either the traditional or liberal approaches,
the defendants felt a sense of power and truth because the political meaning
of their actions had been presented and vindicated. After the {rial th~
defendants went back with other members of Los Siete to distribute newspapers in the same location, while the police and storeowner looked on.
"Basta Ya" means "Enough Already." The case delivered to the arresting
officers. the local police station. and the conservative merchants a clea;
message: if you mess with Los Siete, they have the spirit and resources to hit
back.
37. Of course, specific facts must be carefully woven into the radical lawyer's overall
theory of the case. The theory of this case was that the arrests were motivated by police and
merchant hostility toward Los Siete. The specific facts which supported this theory were
often those which rebutted the police version: for example, no customers complained about
being obstructed; one policeman was not in a good position to see what had occurred; and
the police contradicted each other on descriptions and important details. The lawyer handling
a "political case" must not rely on political overview at the expense of. bringing out all
evidence favorable to the defense.
38. For example, when one of the police officers significantly contradicted himself on
cross-examination and weakly attempted an explanation, the judge cut off further crossexamination on that issue. When defense counsel strenuously objected, the judge said, in
front of the jury, "'That's enough, ~r. Harris. You're like a little boy who got caught with
his hand in the cookie jar."
!982-83)
393
The Basta Ya example speaks to. a common misconception of how to

oliticize a case. People mistakenly beli~ve that all political cases are of the
~agnitude of the Chicago Eight trial. They look at the drama of that casethe gagging of Black Panther leader Bobby Seale in court. the political
comm;nts of the defendants and witnesses, the stature and experience of the
!awvers-and they do not believe they can do, a "political trial." But the
Chi~ago Eight, Angela Davis, and Inez Garcia cases are not the only
models.
Low-visibility cases which contain political elements, such as Basra Ya,
are presented in courtrooms throughout the country on a frequent basis.
What is critical to understand is that one can transform a "solely criminal"
case into a political case by making a few simple changes in approach and
technique. This is possible because the courtroom is a small, closed, intensified experience for the jury and for the participants. Everything which takes
place is magnified. Since the district attorney and judge will almost always
define the case as nonpolitical, and will attempt to create an atmosphere of
neutral application of objective laws, any injection of political and social
reality will have a powerful impact. Using the Basta Ya trial, we can look at
voir dire. opening statement and cross examination to illuminate this analysis.
The two young lawyers in the Basta Ya trial had a combined experience
of less than four trials. They could not carry off a week-long ap.tiracist voir
dire as Charles Garry did in many of the Black Panther cases; 39 their clients
faced only misdemeanors and there was very little visible community support in the courtroom itself. An extensive voir dire in this context may have
been viewed as overkill. However, it was simple .to ask a few questions
which had the effect of setting a political tone to the trial. For example, the
first juror was asked the following: "The community newspaper that was
being passed out was called Basta Ya, which means 'Enough Already!' Have
you ever heard of it?" Since the juror's answer was no, the next question.
spoken with enough clarity and strength to grab the attention of all the
jurors. \vas, ''Basta Ya has articles very critical of the police for harassing
Iatinos and Mission residents. Would that prejudice you against Raul
Flores?" By the fourth or fifth juror, this question became shortened to,
"Would the articles criticizing police brutality make it hard ror you to
evaluate the evidence with an open mind?" One of the jurors, an older
Italian man was asked the following series of questions: "Mr. Flores speaks
both English and Spanish. Are you familiar with people who have the ability
to speak two languages?" Answer: "Of course; in my family, my wife and
I, and son do." Question: "Do you take pride in your heritage, your
culture?" Answer: "Very much. It's important." Question: "Would you
think badly of Mr. Flores if, when he testifies, he speaks with a heavy
39. See generally C. GARRY & A. GoLDBERG, supra note 18, at 97-152, 181-216.
'
I
f
\
388

394
(Vol. Xl:369
Spanish accent?" Answer: "No, not if I can understand him." These types
of questions give jurors some understanding of the racial and political issues
behind the formal charges.
In opening statement, one need nor give a political lecture to the jury,
nor are most judges likely to allow such an approach. However, a few
sentences can inform both the jury and the judge as to the actual nature of
the case. For example, the following was one of two or three political
comments in the Basta Ya opening statement: "Raul Flores will take rhe
stand and testify. You will see that he is 23 years old, married, with one
small child. He has been active for many years in community groups,
militantly organizing against police abuse and brutality in the Mission district." At the very least, this type of statement puts the jury on notice as ro
the political context of the trial.
Cross-examination is the most overrated aspect of the trial. In a lowvisibility case it is quite difficult for a lawyer ro be able to expose the racism
and bias of police officers. Consequently, one must try to shed light on that
bias rather than attempt to tear the mask off:
Question: "Officer, you are assigned to the .\-fission police station.
correct?" Answer: "Yes." Question: "For rwo years you have worked our
ofrhe .\tlission station, right?" Answer: "That's right." Question: "You\e
seen people selling Basta Yaup and down the streets of the .\tlission. haven't
you?" .-\nswer: "Yes, I have." Question: "And you have seen Basta Ya in
the little newsboxes on the corners?" Answer: "I've noticed them occasionally." Question: "Before you arrested Mr. Flores and confiscated his papers, you were aware that the front page photo and headline were about
_police brutality in the Mission, weren't you?" Answer: "No, I don't think I
was aware of that." These questions gave the jury some insight into the
political motivations of the police, even though thev did not fit the romanticized notion of a great political cross-exami~ation:
,.
One does not have to be defending the Chicago Eight, or Inez Garcia.
to bring political reality into the courtroom. One does nor have to be a
William Kunstler or a Susan Jordan to use the above examples in triaL If we
remember that behind each case there is a social reality which the law is
trying to hide and suppress, we can find acceptable and practical methods to
politicize our cases. ~ 0
40. Our use of Basra Ya as an example of how to politicize low-visibility cases should
not be taken to mean that we think trials provide the sole or even the most important legal
context within which to build local movements. The aim of each case is to make the kettle
boil and the location of the heat varies with the circumstances. The following comments by
Gary Bellow illustrate the way that discovery and pleading strategy can further political
organization:
If litigation is directed toward the different goal of organizing, the potentials and
methods in pursuing a law suit significantly change. . . . Let me give you an
example: In Tulare County. I was involved in a law suit on behalf of a Tenants'
Union attempting to improve conditions in a farm labor camp by withholding rent.
.. - ..... __ - ..
----=---~-~
389

!982-83)
395
IV
CouNTER-PRESSURE IN "NoNPotmcAt" CAsEs
f overtly political cases is that they provide opportumThe adva~tag~~ real basis of existing social conflict~ and to challenge
ties ro dramauze t
l the way that these conflicts are portrayed
rhe State's
efforts
to
cont~o
. . legal categones. The lawyers and litigants can both .speak for
within ex1stmg
!ready partially constituted and acuve 1y conl" . . .
f h
..
l groups that are a
opposmona
.
of such groups through the po mcizmg o t e
tribute to the formauon
committed but sympathetic supporters can see
lawsuit itself. Thus, as ~~t unts in the case and may internalize this courage
the courage of the paru~Iptahn mselves furthering their own willingness to
of power m e
. .
f
as
a source
identify
with the rnovement' s goals and perhaps to take acuon m support o
them.The vast majority
. . 0 f legal cases do not ' however,_ have
1 this
immediater
.
ublic impact. Ordinary divorce, persona InJ~ry cases o.
potenual
for P
.
. oli"tical in that they involve
ot.
. the mfluence
11
Plovment heanngs are p
unem ~
. d' "d allives but they.are not norma y expertlarge social fo_r~:~hu!o~h~;Y ~~p~ar sim~ly to be minor ruptures in a pr_ienced
as such.ll"fe
vate" persona
1 A' divorce may provoke intense anxiety about economic
..
h d of the Housing Authority which ran the campI took a deposmon from the e~d
and watch I insisted that the deposition be
at a place where ~he tenants cou c~m; could see ~e challenge him. question him.
taken in front ot: those ten~ts so t e had reviously been unable to obtain. They
and get information from him that they lnfrable and that they were not totally
left with the sense that h~ w~ ~o~~v~hem, I think, continue the fight. It ~idn'~
without leverage or protecuor t e
that the Supreme Court denied cemoran
matter that the c~e went on or ~wo
By the time the Supreme Court did rule.
on it and that we m ~act los~ the ega ISS~~ t of the camp, over SS.OOO in money
new housing was bemg bul_lt for the rest
set of rules and procedures had bee~
had been returned to them m back _re~t, fanetaliatorv eviction actions in the future.
agreed upon th~t would bar any let~ ~-/ tion fo~ building the tenant's organizaWhat we dtd there was to use tIe ~~~a s and on the litigation none oi those
tion. Had we focused solely o~ the eg Issue
tenants would be in that housmg today.
Y is seeking an injunction and he
Consider an~t~er example: assume an ~~=~ne relief he will ask of the court.
must make a dectston as to
t1e .o.f p~e An a:c;rney focusing on political orgaWhat criteria should govern t IS eclSIOn h than the broadest ground in seeking
nizing might we_ll delineate the ~arr':'west {atd~rd-tertant dispute he might seek a
preliminary rehef. For :xamp e, 10 a an om \Bin force or selfhelp. This is, of
restraining order prev~nun~ the l~dl~rd fr d the li~elihooct' of obtaining such an
course, a clear legal nght 10 C~fornla, an ? went tenants would go in with the
Y the landlord before he goes
order would be high. Why would lt be sought. T
attorney to court asking that the~ not be thr~w~ ~uth'Z,ds restricting the landlord's
. to
They can go back to
to court. And they'd walk out With a paper 10 t etr
power. More than the protection, they'd have wonda:'a~ .. ~~won our first fight.
the forty other tenants who didn't go to court an
Now we'll try a harder fight."
Comment, The New Public Interest Lawyers, 19 YALE L.J. 1069, 1087-88 (1970) (excerpt
from interview).
rars
th:.
C::
390
396
[Vol. XI:369
security, emotional isolation, and the time and expense of childcare. These
are aU social problems that call for social solutions. But as a result of the
fragmentation produced by the existing social order, each isolated divorce
client experiences these problems as personal in nature and sees the legal
process solely as something that must be paid for to make the break-up
official and
protect property and custody rights. How is it possible to
politicize
suchto cases?
Finding an answer to this question is among the most important tasks
facing attorneys, for several reasons. First, these minor cases comprise the
bulk of every community lawyer's practice. If the lawyer perceives these
cases as routine and politically meaningless, he or she will increasingly
perceive his or her work in this way. Maybe this is a principal reason why so
many lawyers eventually give up their radical aspirations, if they don't quit
legal work altogether. Second, the legal system itself contributes to social
fragmentation by treating conflicts as isolated cases arising in each person's
private life. One way that the dominant ideology contributes to alienation
and powerlessness is by generating a false distinction between public and
private life, a distinction that translates collective social problems into
individual personal matters. Unless lawyers find a way to counter this
perception, they cannot help but reinforce it by relating to their clients
through this ideological framework. Third, the experience of minor lawsuits
is one of the few times that most people actually encounter the public sphere
directly, and the experience almost always intensifies the alienation they
already feel. Tlie degrading and manipulative way that these cases are
routinely processed in the adversary system only increases people's sense of
hopelessness about politics and about human nature in general.
We propose three principal approaches to politicizing nonpolitical cases
which we believe will enable both lawyers and clients to begin to overcome
this alienation. They are: I) the disruption of the State's attempt to individualize and isolate such cases by discovering the inherent political content of
common types of cases. and using this political content to build community
organization; 2) the poiiticization of local courtrooms and other "legal"
public spaces that are currently colonized by government officials; and 3)
the de-professionalization of the lawyer-client relationship at a widespread
level. The unifying objective of aU these approaches is to utilize legal
conflict as a tool to increase the experienced power of all those affected by
the conflict, including lawyers themselves, their clients, and the communities to which they are naturally linked.
A. Discovering the Common Thread

Here are some examples of potential alternative practices that would
have as their objective the politicization of non-political cases:
1. A family law practice might be Grganized with the aim of politicizing
issues the State currently characterizes as purely private or personal in
391
CRITICAL LEGAL THEORy
l982-83)
397
of the following elements:

11
ractice could include any or ~raditional relationships. th~t
nature.
legal forms to SUJ)POrt.
ac are available only wtthm
( 1) creaung n:
that lasting love and mum Y olitical aspect of the gaychalleng:. the
(this is perhaps t?e
center providing
isolated famt yt4l) (2) developing a hohsuc
breaking down under the
rights movemen
assistance to famtte: 1 ce
and
medical and psyc. 1 forces as stress at the
pa '
roaches to tradistrain of
personallife;42 (3)
of separation
~uch
a:
n~n
_mos~l~i-service
-~
~~e~nits"
h~logical
~uc~ so~~
un~mployment,
wo~
de_velopt~g ~~:;~~ess
:~:n~i~~~~~::d child=-~~:; ~~~.;;~:~h(i:~u~ng, ~=~e~:~;.:~

a~~~:~on
for
lawyer-to-lawy;i~;:Ce
as educational
instead of
clinic in which
of face-to-face -forming strategies like the pro se ence of being imprisings,"
can discover their
to change their
women an
or . .
1 family roles while wor mg
h tradmona
and~ro':en
~ommo~. expt~~ether
m
.
.
concentrate on breaking
st8tu~":It~low-level
criminal defense P;.~cnc: ;.:;,~~ular section of an urban
oned
en~\
. . . . of "criminal contro m
.
that repeatedly occur
the rouumzauon ld be to link certain types of
their socioeconomic
area. The aim wou small drug sales by addicts, wn
build conscious-
:~:tt::~ ~:;:k~~: ;.,ith ex;tt;ng.;:,;;;,~~~:~~~! ~r:~~\~ the communii;;;

ness about the way
t~:s: :Ce:n within
the socioecono.nu;s
~~;~~7~r law
pr~blem :'i'nc~;leo~!:e would be to p~etrater::::~g~:~n~hrough increased
:!;::;.y":'oli~t;.~dar;:::~g~~eb~ot~~";dev:r::e~~ oe~~~~~;~s~~~
gutdmg P
. e control by seekmg to
area. One aspect o .

. .ts that would be
community arbitration pro)ec
. destruction of the
estgn
,.....ept of Personnel
Emplovees
v. ..,
Advocates for Gay & Les btan_
A ~il 1983),
asserting tha~ a
Hinman & Su Ct. Sacramento. Cal.. ftle? ri~i~ates against gay.s wtth
Administration. _:-.Jo. 308~68 t~ s~~uses of city employees ~~~clause. The political ~mpor
dental plan avalla~l.e. on -~lation of the state equal pro~ect~~at gays have an equal nght to
"domestic partners ~~ ~~ sly goes beyond the legal c~I~ marriage requirement, th: c~e
tance of such a case o ~lOu the State to publicly de!en \e its challenge to existin~ ~m~y
dental benefits. By fo~cmf~r the gay movement to mt.~n~l ~") which regiment and hmlt t e
ll. See, e.g .
""'d" ., opp~non~y.d<otogioat """""' of "f~ Y
structures (in~lud~ng t e l
lace greater emphasis on t e
expression ot destre.
I bor movement needs to P
for Labor and Mental
. 42. On the theory that
.ans and personal life. the
of local trade
relationship between wo~k co~a lt~~ begun just such a center or
Health in Oakland, Cahform ,
. . and the adversary process,
unions.
.
.
n
of
the
differences
between[
ers
medtauon
Justice
43 For a descnpuo
. Dependence on awy and Courts to Achieve
d' n Reducmg
80)
d the
F<lotmo, M w"o 4248 (R Wm" ot. t9 f .,. <u<h <lbti<, <ondua "
in PEOPLE's
LA~ RIEVIE~mistic des~ription
of by
theJeanne
value oC;arn at the Critical Legal Stu tes
44. A relative Y op.
was iven
Legal Services ln~titute ~~ B~~on~sota,gon May 15, 1981.
Conference in :vtmneapohs, mn
t~~
lns~tut~embers
392

398
393

[Vol. XI:369
"criminals" and the group to which they belong about the social causes of
their own activity. 45
3. An entertainment law practice could strengthen the political base of
community artists, not only by helping them gain legal protection fqr their
work, but also by helping them organize to resist exploitation by publishers.
galleries, and the networks, and by discovering alternative methods of
financing neighborhood cultural centers where groups of artists could both
live and work. 46
4. In a landlord-tenant practice which primarily consists of fighting
evictions on a case-by-case basis, lawyers can politicize cases by encouraging
organizing efforts among tenants and by simply suggesting that people
discuss their common difficulties as tenants. Such a suggestion helps reveal
that the political issue at the root of landlord-tenant conflicts, is not whether
tenants "need more rights," but rather what the destructive effects o-f the
housing market itself are on people's communities and home lives. Moreover, if efforts are made to link newly formed groups of tenants to an
existing local tenants' organizing committee, it becomes easier for people to
overcome the isolation and frustration that is brought about by the sense
that they alone face eviction lawsuits or have trouble with their landlord.
The more that such organization takes place in the private sphere the more
possible it becomes to articulate political claims in the courts, and the more
difficult it becomes for local government officials to ignore such claims as
legally irrelevant. By politicizing a common set of human problems that the
legal system would turn into a series of isolated cases involving the static
categories of "landlord" and "tenant," these efforts expose an arena of
social conflict and thereby expand and deepen the political meaning of a
dispute.
Obviously, these examples are both simplistic and overly utopian if
conceived as isolated attempts by individual lawyers. But if hundreds of
lawyers begin to form networks that make the development of this kind of
practice their self-conscious aim, they will have a real impact. not so much
from the instrumental gains that they will make in individual cases, but
from their contribution to the development of an authentic politics. If every
dispute is founded ultimately upon conflicts and contradictions within the
45. The Community Board Program in San Francisco has been very successful in
presenting an alternative to "crime control." Created in 1976, largely through the vision and
effons of attorney Ray Shanholtz, the program has six offices, and trains laypersons,
including. many community activists, to act as conciliators. Neighborhood problems and
misdemeanors are brought before a "community board" that attempts to deal with the
underlying social issues as they affect the actual panicipants.
46. Columbia College in Chicago has attempted to meet such concerns in its five yearold An, Entenainment and Media Management Depanment. The depanment chairperson,
Fred Fine, suggested to one of us that the remarkable growth in stature of the College's
undergraduate and graduate programs evidences the pressing need for lawyers to address
these issues.
399
.
!982-83]
. .
such dispute raises the potenual for t~emau~mg

system as a .whole, l~ctive action the relationship between pnvate hfe a~d
both. reflect~ on ~~~ ~~tivity of engaging in this politicization of legal pracuce
pubhc totall:;of realizing the liberating politics of a future, more tu~a.ne
is the
ietya~tlVl
m the present . It is the experience .of engaging in this form o po ltlCS
soc
. the true source of its transformauve power.
that IS
eve
B. The Politicization of the Courtroom

h h . le most powerful collective
It is not .a.n exaggera~io~ t~h~~Yo~ ~et c~~~!om. The robed judge who
image of pohucal authont~ IS.
tlte official and hushed character of the
sits elevated from the gat ~nng, of the room the complex procedural
legal proceeding, the archltecturen other featu;es of the courtroom ritual
technicalities-all of these ~n.d rna \
.
f the State and through it the
serve to reinculcate the polmc~ audt onty o h le Beca~se the social power
f h
. economic or er as a w o .
legitimacy o t e soclo.
h
depends upon the continuing acceptance
of hierarchies in the pr~va~e s~ her~ courtroom encodes and symbolizes, a
of the political authonty whlc t e .
f the courtroom can become an
.
ff
ndermine the sancuty o
.
consciOus e ort to u
.
e entire social order into quesuon.
important strategy for throwmg th
as a conscious strategy of the
The dele~itimatio~ of t~ c~urt.r~o~u;it is wrong to think that such a
defense team m the ~hlc.ago 1;1 t t~\~tical cases that receive national attenstrategy is only possible m over Ydp . able for such a strategy to take the
.
N . it necessary or even eslr
.
f
, 47 The strategy proposed here IS a more
non. or IS
form of overt "contempt o court. duration through which a great many
a'rt of their political work to
widespread practice of much longerk .
y kind of case rna e 1t a P
lawyers m ever
. . their local communities, and m so
"aently" deconstruct the courtrooms m .
f the State's authority
"'
"b
oding the symbolic power o
doing conm ute to er
.
mples~s illustrate what is meant
from the bottom up. The followmg two exa
.
by such "gentle" deconstructio~: . Kline a radical healthworker, was
l. Several years ago Step ame
. ' of explosives. Bail was set at
falsely charged with murder and posses~lOnd ced In the Oakland Munici$75,000, and her. lav.;~er. move? ~ ~:~ea~j~~n~ng the holding cell, located to
pal Courts there ts a pnsoner s o
d b h At a bail hearing crowded
the right or left of the judge'~ .elevate encli~e to her dock to the right of
wit~ Kline's supporters, the bruhff :~c~~:~-l~ft of the judge sat her defense
the Judge. Several yards away~~ t . t attorney's table, located to the frontlawyer. Between them was the tstnc
k d the judge to allow the defendright of the judge. The. de~ense.lawTyehr ~u; e refused. Defense counsel then
eJ g
ant to come over and Slt Wlth htm.
61 F 2d 389 (7th Cir. 1972).

L
47. See In re Dellinger, 4
. of the San Francisco Communtty aw

48. These examples are drawn from the pracuce
Collective.
394

395

[Vol. Xl:369
got up and walked between the 0 A

d
.
Neither the bailiff nor the udg and t~e JUdge to the prisoner's dock
1
d f
.
.
e stoppe htm He a
bad standmg next to his client a I
.
. .
.rgue or reduction of
ocauon
whtch
requ
r
d
h
d
.
1
her nght to hear the plea. The D A
. e t e JU ge to turn to
., T
. argued from hts tab!
-. wo codefendants in San Francisco lead
_e.
smugglmg. One was represented by a
NP . ed guilty to marijuana
ney,. the other by a prestigious New ~~~:gdo ~IOnal Lawyers Guild artorheanng, the young lawyer arrived with his r p ,Iaw~er. At th: sentencing
seven and ten. When they walked .
h
c tent s wrfe and children, aged
children to leave stating that .tmto t e courtroom, the bailiff ordered the
'
I was a standin
1 f
.
chI 1dren were not allowed r"n th
g rue o the JUdge that
e
courtroom
This
Id
b
.
1ast opportunity to see their father before he be
wo~
~ the children's
lawyer explained to the bailiff that the ch "ld
gan servmg h_rs sentence. The
th~t they had a right to be there based 1u ren were ~or ?abres ~g and argued
pnvacy of family relationships and to
po_n c~nsmuuonal guarantees to
they were dealing with a standing rule ~~u~hc tnal. The bailiff replied that
to .s~ay. and asked the bailiff to infor~ he ~~yer told_ the ~i~e and children
balltff did. The judoe then entered . h t e JU ge of hts posmon, which the
Wit our ever rais
h
ha d to be made toe allow th h"ld
mgt e rssue. No motion
forciblv removed The othe edct. I dren to stay and the children were not
r e en am's child
.
hall, never seeing their father b
h"
ren remamed m the outside
ecause 1s lawyer ob d h
.
I f we understand the courtroom
.eye t e standmg rule.
~ a symbolically organized public
space that is designed to reprod
collective obedience to po!t"tt" 1 uhce,. t rough repeated visible rituals a
ca aut omy both f h
.
setzure a.nd transformation of th"
'
o t ese examples show the
.
IS space through the
d"
acuons. The lawyers neither prod
d fl
most or mary human
the authority of the proceeding b ucce
ashy legal st~~tagems, nor affirmed
they refused to recognize the
it~~~~mpruously ra~h.ng against it. Rather'
fac;ade by acting in accordance !ith Y ofh the_ offtctal and authoritative
an aut enttc human moralitv against
which this fa,..ade because t"t s
.,.
1 constructed upon
Iess. In _forcing the actors in their false dra

Images: IS always powerand ordmary persons the law
rna to recogmze them as actual
vers were able h

b
the courtrvom with all of its ~h
' owever net1y, to transform
room inhabited only by other odr~ographed style and pretense into a mere
Th .
or marv people
.
e ftrst case shows not onl
1.
. .
.
chent, but also a challenge to th YS a a~yer standmg m solidarity with his
Kline's lawyer walked through ea t~;b~-~~If: to re~ch the prisoner's dock,
acknowledge the meaning of his act"
~ en _corndor; the judge had to
ton y turmng to the right; the prosecu-
1:
. ~9. This does not impfv that the rule h

babies. _On the contrary, babies, toddlers a:d ould have b~e~ observed had the children been
pretensl~n of court proceedings, which is wh o_th~r unsocl~hzed pres_e~ces tend to deflate the
and d~ables: In the absence of adequate stat/f~~d~~ r~~~nely prohibit reading, whispering,
non lsrupuve baby should be recognized
. I . c I . care, the arbitrary exclusion of a
as a VIO anon ot federal civil-rights laws.
!982-83)
401
tor was deprived of the power of his place by the new configuration of space
instituted by the defense counsel. In the second example, a "standing rule"
was reduced to an arbitrary contingency by the simple affirmation of th~
innocence of the children and their love for their father. These kinds of
actions reverse the power relations in the room by dissolving the network of
images through which authority is normally maintained. Had the government officials wished to assert their own control, they could have done so
only through the use of direct force.
There are two related reasons why force was not used in these cases.
The first is that the self-evident justice of the lawyers' actions appealed to
the humanity of the officials themselves. The officials' fundamental desire
for authentic reciprocity, in spite of their efforts to deny it through participation in the courtroom hierarchy' allows them to be reached as human
beings through spontaneous elicitations that escape their defenses. Second,
it is precisely because state officials experience the moral power of the action
which dissolves the legitimacy of their images, that they know it is not in
their interest to use force. In the absence of a revolutionary popular movement, the interest of government officials remains legitimation. and the use
of force to suppress morally authentic action is inherently delegitimating
because it represents an explicit acknowledgement by the officials themselves that their power derives from force rather than consent to their
authority. Thus, from the point of view of legitimation it remains preferable. in the lesser-of-evils sense, to wait out the break in the ritual and even to
show, as best they can, that such a break can be accommodated. When the
attorney walks over to Stephanie Kline, he disrupts the choreography of the
ritual, but once he has arrived, the proceeding continues and gradually
reassumes the character of a "bail hearing"; the argument is made to the
judge and the legitimacy of the law is instituted once again. As long as the
judge does nothing to further the development of the felt power of the
audience, the inertia of the proceeding will gradually regenerate the required
pacification and the ensuing collective isolation. The inevitability of this
process is what accounts for the ''wisdom" of Talleyrand's advice tO rulers:
"When in doubt, do nothing."
But this inevitability of the reinstitution of symbolic authority can only
persist as long as the power of inertia can resist the accumulation of popular
counterpressure. The gentle deconstruction of the courtroom cannot be
limited to a few isolated instances which become inspiring anecdotes ("Only
Kunstler could do that"); the potential for developing a concerted strategy
exists every day on a widespread level. The development of such a strategy
must occur in working groups of lawyers who are in the best position to
understand the available space for action, but there are certain general
principles which are relevant to the conduct of any trial.
The most basic principle refers not to a particular course of action but
to a way of being. In conducting a trial the lawyer must resist the pressure to
identify her being with the role that is allocated to her. This does not
396

402
397

[Vol. XI:369
preclude ac.ting. like .a lawyer in the making of motions or in the conduct of

cross-exammauon; It means maintaining and living out an emotional distance between her true self and her "performance," so that she always
expresses hersel~ as .merely "acting like" a lawyer and not being one. She
must a~~ays mamtam and express, in other words, a moral autonomy from
the official charact_er of the proceeding, and, in so doing, affirm herself as a
source of aurh~~uc power and resistance. As a public actor whom the
government ~fflcials must recognize as one of themselves, as a participant in
~he pr?ceedmg .rat~er than merely as an observer, she can provide an
Impo~tant exp~nenual example to the disempowered people in the roomher chent, the jurors, and all those gathered behind the barrier that svmboli~ally separates the public from the official legal arena. By maintaining this
Internal s.ense of moral autonomy, the lawyer will be ready to seiz; anv
o~portu~lty for authentic action which presents itself in the course of th~
tnal. Wuhout it, she will not be able to discover the strength in herself to
make spontaneous interventions like those made by the lawyers in the two
cases described above.
In adhering to this position of simultaneous detachment and involvement, t.he lawyer will discover her greatest opportunity for honest and
human mterven~ions i~ ~e.r direct and indirect communication with the jury.
Howeve: much jurors mmally want to avoid jury duty, once empaneled thev
usually tee! a degr~e of moral responsibility for doing justice that is impor-tant to them, especially because such a feeling is routinely denied them in the
normal course of their lives. They are the object of great respect in the
courtroom both because of the power that they hold to determine the
outcome o~ the trial, and because they represent an ideological ideal as
representatives ~f "the people." All of these factors help to make the jurors
open to authentic forms of expression and argument. so
The. greatest possibility for reaching the jury occurs in those moments,
o~ten qun~ exten~ed: ~hen .the lawyer has an opportunity to talk co the jury
dtr~ctly wtthout stgmficant Interference from the judge or opposing counsel.
Thts extended communication typically takes place in opening and closing
statements. At these times the lawyer can break the false realitv of th;
courtroom spectacle by telling the truth to the jurors. speaking n~t like a
courtroom orator but like an ordinary person who is serious about what she
has to say The "truth," as we are using the term, is the sociopolitical truth
.so. It is the j?b ?f go~er~J?ent officials to condition the jurors to the maximum extent
fe~tble by .authomauvely hmmng the scope of their role and restricting both the content of
~ at t~ey near an~ t~e manner in which they hear it. This is formally arranged primarilv
t f~ou~ the rules ot evtdence and through the giving of jury instructions by the judge. but
1982-831
403
hich the court normally considers to be irrelevant to the legal res~lutio~ of
~e dispute. This truth must therefore be "gott~n i~," -~hrough the mvenuon
of an innovative approach as in the Inez Garcia mal,> or, even m~re oft~n
by speaking to jurors in a way which relates the "case" to expenences m
societv with which they can empathize.
The "black rage" psychiatric defense provides an example of the latter
technique. This defense was developed by lawyers in the early 1970's . to
a black defendant's criminal behavior in terms
of the oppressive
exp Iam
-2
reality of a black person's life in the United States.~
, .
The basic idea of the defense is to relate the defendant s hfe to the
history of discrimination suffered by black people, and to interpr~t the
defendant's criminal action in this sociopolitical context. Because this defense is not a traditional one, however, it cannot be raised unless it is tied to
a recognized legal theory-the insanity defense. Most state and federal
jurisdtctions now accept the following legal definition. o~ insanity: "A. defendant is insane if ... at the time of the alleged cnmmal conduct. as a
result of mental disease or defect he lacks substantial capacity either to
appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of the law." 53 In the typical black rage case, the defense
characterizes the defendant's anger as a 'transient situational di~turbance ...
a psychiatrically recognized "mental disease" which means that the defe~d
ant temporarily cracked under pressure. The defense can then. present sociopolitical reality to the jury under the legal rubric of evidence relevant to
temporary insanity.
This approach does not put forward a traditional psychiatric defense
relying on a psychiatrist whowill testify to the defendant's memal condition
and a psychologist to interpret a battery of tests. Rather, the lawye_r put~ on
lay witnesses who testify to the racial and cultural day-to-day reahty ot the
defendant's life. In the typical psychiatric case the defendant does not
testify; in a well presented black rage defense the defendant does testify. in
an attempt to give the jury some insight into the social pressures which
drove him to a criminal act. It is only as an adjunct to this testimony that a
psychiatrist or psychologist is called to give expert testimony, and this
witness must be someone who can merge established psychiatric concepts
with the socioeconomic reality the defendant has faced. In opening and
closing statements, the lawyer does not try to persuade the jury that the
defendant was "insane" (the lawyer does not have to frame his argument in
terms of the legal category used to introduce evidence); rather, he fully
explains the meaning of being black in America and how societal discrimina-
th~
~ ec~tvene~s ~f the~e fo~~al device~ depends upon the officials' ability to maintain the
!uror s behe.f m thetr legmmacy. Thts belief derives only from mvstification because the
J~rors are fnghtened by what is going on in the room, they tend to t~ke their cu~s about how
: e~ a~e supp?se_d. ~o be an~ wha~ th:y are supposed to think from the judge as the
m odtment of otftctal authoruy. It ts this conditioning that the lawyer must try to undercut.
51. See text accompanying notes 19-24.

52. See genera/f.v Harris, Psychiatric Defense: Black Rage, in CALIFORNIA ATTORNEYS
FOR CRIMINAL JusTICE, CRIMINAL LAW SEMINAR SYLLABUS, 1-16 (1979).
53. 1 DEVITT & BLACKMAR, FEDERAL JURY PRACTICE AND INSTRUCTIONS 14.17 (1977);
see also People v. Drew. 22 Cal. 3d 333, 583 P.2d 1318, 149 Cal. Rptr. 275 (1978).
398
404
[Vol. Xl:369
tion affected the particular indiv'd I

ment.
1 ua who stands before them for judgThe black rage defense is not a radical
. fantasy. It has been used
successfully on a number of occ .
by thrusring their true life expera1_esn1ons_ presehrvmg the dignity of the clients
defen dam was convicted yet he th ce
k dmto t e co urtroom. In one case the
an e the lawy
d
b
. er an the psychologist for
nngmg the truth into court, and for he! .
had warped his ability to-respond to eo ~mg him to unde~stand how racism
after ~n acquittal, a white juror ph!e/ ~ a~d problems. ~4 In another case,
t e efense lawyer to tell him that
the tnal had been one of th
e most traumati
opened her eyes to the life of black A
. - c evems of her life-it had
of the defense is not based on race b menca. ~s Furthermore, since the heart
ut rather on th
.
e use of socioeconomic
reaI!ties m the framework of a ps h' .
fully on behalf of a white ma:cc 1atnc def~nse,. it has been used successsuffered from having spent his emir~~J~~ l;lt~ f1v~ ba~k robberies who
1 em pnson.~6 It was also used
54. Letter from defendant to Dr D .
.
. amel Goldsune. United States v. Veale C "
Th'
r. . o. ,3.
-
1s mc1dent rook place afr
.
.
:-.io. ?I-64 S~W (N.D. Cal. 1971). er the rna! ot Lester Banks. Cnired Stares v. Banks Cr
-?6 ..Unl!ed Stares v. Schneider Cr :-.1 7
. .
2
~a~~~o~~s e~rfiy thirri~s had allegediy r~bb~d t:~ :rl s~~~NkD:10Cal. 1975). In this .:ase a white
rer the JUdge rejected a 1 b

.
n s a rwo month period whil
twenfh year sentence, the defense was fo~~ed ~~a~~ thich would have allowed a fifteeeno~~
e general psychiatric diagnosis was th
r_l'la . .
~hatbhe. had tw~ personalities: Abderaman a at otl a schJ~o.Jd personality. Schneider testified
ar a!'lan. Dunng the crim AI
gent e. sensmve person and AI
.
!nghthe bank robberies like ~~e w:~~~::o!~:~r a~d Schneider srood'ourside ~:~I; :~:~~t
m t e use of drugs alrhou h h
n PICture. The trial psycholo
heroin addicts and' LSD u:ers, eh~a!:Ser.:;,rew creden.rials outside his clinic~~~~;~~~:~~~
LSD c~~ses flashbacks and extreme an . e to explam that the long term and heavv us f
tranq~lil~er." This framework set the staXlety, and t~at heroin could be used as a s: ~
been m tor eleven our of his past thirtee ge for exposmg the prison system the defendant ~
The pnson svsr
d h .
n years.
.
a
. em an t e disregard socierv h
h
t ~s case. Schneider resnfied to the brutality o.f a~ tor parolees were the political realities in
Pl'lsoners at San Quentin and how it w
. pnson. He explamed the racism amon
~ryan Br?therhoo.d tried to recruit him~e~::~~~ated by the guards: he explained ho! :~:
ecause hi~ best pnson friend was black l
e was German, and how he rejected the
~~~~~!~ w~h prison ~uthorities for s~ea~it:; :nu~ h~~as 1.~1 alone by a!l.sides. and often ~
. . an and descnbed a cult at McNeil lsi
. . nel er also testified to the use of
pam~~gs, d~ne i.n prison, bore witness to thea~:g;~Jch usefd L~D everyday. His psychedelic
' os.es o acid he used.
e mam wnness with regard to the
~~~~ ~edrug rehabilitation center. He restig~e~::~ shslx.dmonths on parole was a man who
c nel er came there for counselin h
w months after his release from .
~f federal funding, Schneider and the ~~~~~~'wbut ~h:r ~hen the center closed down forgl;c:
0602 _WTS (N.D. Cal. 1973).
y'i
fl~~~~=c~~e;n~~~~::~ ~~ ~:sh:~o:~i~ 0t~: tha:r;c~n~i~~:~~~=~yt~l~=v~o ~~r:n:n;i~~~~
~ames Schneider could be depicted buce .the fear a~d Isolation he felt.
~escrlb~ as a pitiful, weak heroin a . y his la~ye~ In rwo contrary ways: he could
fmally flipped our: or he could be
de~~~
petty cr:mmal since the age of fifteen who
h:~
~as. unable to cope with the violence of he:: as ~ fnghrened, talented, sensitive person who
esumony described the tough white
en.vJronment. The lawyer chose the latter Th
gang-onented working class neighborhood in ..;,hie~
399

1982-83]
~OS
successfully on behalf of a white draft resister who could not step forward
for induction because of his outrage at the immorality of the Vietnam
War. 57
Although it is difficult to do effectively, satire or theater can also be
used at times to bring political reality into the courtroom. A woman defendant in a well-publicized political case was in court on International Woman's
Day. The courtroom was filled with her supporters, mainly women. A
liberal male judge presided. It was an established custom to recess court
early on certain holidays, or out 'Of respect for a judge or well-known lawyer
who had recently died. The woman's lawyer made a motion on behalf of his
client to recess early out of respect for International Woman's Day. The
courtroom exploded into applause. The client felt that support and its
power. The district attorney was stunned. In order to avoid confrontation.
the judge called a recess, "taking the motion under submission." Although
the judge later denied the motion, he had been forced by the circumstances
to take it seriously. The power relationships in the courtroom were significantly transformed that day, and a small shift in power was effected for the
remainder of the trial. 38
Many lawyers assume that it is dangerous to be political in the courtroom because it will reduce their chances of winning. This is incorrect as a
general principle, particularly if "political" is understood to mean demonstrating the underlying social reality of the case. Although there are undoubtedly many instances when a traditional legalistic approach is the most
appropriate course of action, it is also true that, as a general rule, judges,
prosecutors, and lawyers feel a loss of power when the roles within which
they exercise control are revealed to be artificial and manipulative. The
greater the extent to which conditioned images of the courtroom are undermined by honest spontaneity and moral authenticity in speech and action.
the more likely it is that the jury will react to the totality of the event with a
free and human response.
Schneider grew up; since he was always the smallest kid, Schneider's father (a small man)
insisted he rake karate lessons so he wouldn't be "chicken." Schneider testified"to raking pan
in gang fightS, always terrified he'd be hurt, but unable to get any supporr for dropping out.
His talent for writing was put in evidence by reading two of his prison poems to the jury. One
poem, "The A-Bomb Generation." expressed his love of people and his fear of destruction:
the other, about drug addiction, explained the psychology of the addict and his self-contempt. (The psychologist made a brief analysis of the poems so they would be admissible).
This defense was offered to the jury to enable them to understand the brutality of prison
life and to see how a basically decent young man was driven to take refuge in drugs. This
understanding created the empathy necessary for the jury to legally excuse the bank robberies. When the jury, relying on the psychiatric justification, found Schneider not guilty. the
judge told them they had been "sold a bill of goods."
57. Interview with James Larson, counsel for defendant, U.S. v. Lee Guse, Cr. No. 71783 O.I.C. (N.D. Cal. 1972).
58. A similar kind of theatrical tactic was used effectively in the Chicago Eight trial
when the defense lawyers tried to have counterculture folksinger Phil Ochs sing one of his
anti-draft songs from the witness stand. See THE TALES OF HoFFMAN. supra note 17. at 11112.
400

406
Critical
[Vol. XI:369
C. The Deprofessionalization of the Lawyer-Client Relationship

There are many people who enter law h
.
.
sc ool With a social conscience
and a desire to transform society .
t"
h
m a more humane and ega!' .
.
Ion, w o later experience a split in th .
Itanan dtrecand their role as lawyers A 1
etr everyday lives between these goals
.
'1
. s awyers they funct"
experts who "represent" oppressed ,
.
ton pnman Y as technical
y~rs working for legal services office:eople m the ~egal system. Many lawctes (such as OSHA or the NLRB) f and_ progr~sstve state or federal agenrpultiply in the face of budg t
Iace mcreasmg pressure as their cases
bureaucratization of their woekcul ts. ~p~ssible caseloads coupled with the
.
d .
r P aces tmpmge heavily
~ r
tty an Independence which th
J
on ee mgs of creativpolitically-oriented legal work ts~ awyer~ had expected to be a part of
little from that performed b . n eed, thetr day to day work often differs
give legal advice, write motfo~~~~~a~e. a~torneys-they do legal research,
ne s, and make legal arguments in
court.
. The split between the motivation of
.
progressive lawyers to change
soctety and the content of th . d .
etr ally legal work
over the long term As port" 1
IS extremely debilitating
directly to transfer~ socie:y~~~capeopleh~hey don't feel they can do anvthing
th ey don ' t experience themselves use t IS must await a mass movement,
- and
they don't feel they can do anYth~s abpart of such a movement. As lawvers
.
mg ecause th ey see t h e legal svstem as

a
ftxed environment in which th
ey are under more o I
b
.
r ess constant pressure
ecause they are almost always on the de
a set of rules which severely limits th . fenstve, and must play the game by
find legal work to be both bori
d ~r options. Furthermore, they often
practice, because in their ca n~ an eeply alienating after a few years of
emotionally starved For tht'spacuy as lawyers they are intellectually and
I .
.
reason many eve t all d
n u Y . rop. out, either by
eavmg law practice altogether or by m k'
cases they take. Whatever idealistic f ~ mgl compromtses m the kinds of
cannot withstand forever the degrad ~e mgs ed them to go to law school
b
auon of their spi t h
mevna le consequence of legal work.
n t at seems to be the
In order to overcome this destructive
.. . .
yers must come to see that this spr f d and depoltucxzmg process, lawfalse consciousness from th . f 'lit un amentally derives from their own
etr at ure to understand th
l I
'
ega system and the possibilitie th
e true nature of the
as political people within the leg~ ;~:re op~n to. ther_n _to ass~rt themselves
where students are condition d
. a. Thts split ongmates m law school
~ 0 Internalize a sens~ of themselves as pro~
fessionally trained experts
what is just and unjust but a o o not ac~ out of their own critical sense of
role of "the lawyer" link ~ repr~se~tattves of others. This idea about the
quence of a democratic le ale ~o t e _Image of. the social order as a conseof "citizens" to one an!he~~ ;~;~~ch estabbs~es the "rights and duties"
~hrough politically legitimate institut' gal r~rde~ ts created and maintained
mg political claims to justice may b I~ns I e t e courtroom where compete eard and evaluated by democratically
w:
401
Studies
407
elected government officials or their appointees. In this setting the citizen

does not speak for himself because the political claim that he is asserting
must be evaluated abstractly, in terms of the democratically constituted law
which determines of its own accord the justice of the claim. The social order
is perceived to be just because it derives from the political order as expressed
through the law. It is for this reason that the citizen becomes a client who is
represeiued by a legal expert: citizens are treated justly through the neutral
and autonomous application of the law to their claims of right, as those
claims are evaluated through a democratically constituted proceeding. The
idea of the lawyer as a professionally trained technical expert, in other
59
words, is an expression of the structure of liberal ideology as a whole.
Few radical lawyers think that they believe in this ideological structure,
but we act as if we do when we behave merely as representatives. In our
private lives we may support major social change, but in our public lives we
often act like agents of the State, which is to say agents of liberal ideology .
We put ourselves at a distance from the political meaning of our clients'
actio_ns and allow this meaning to be redefined as a question of law. This in
tum leads to a definition of the lawyer-client relationship as a relationship
of roles: that of professional expert to private citizen. By conveying this
professional mystique to our clients, and by transforming the action that has
brought them to a lawyer into an abstract legal matter, we contribute to the
clients' powerlessness, and suppress ourselves as political beings.
Once the lawyer becomes a professional and the client becomes a
helpless layperson, the potential for oppositional energy that is produced by
legal conflict will be dissipated, and the system will be the winner whatever
the outcome of the case. The first step in combatting this process is to
politicize the lawyer-client relationship by ridding it of its official and
professionalized characteristics.
If a political lawyer can recoup her being from the role into which she
has fallen and see the system as it really is, her practice can become a source
of political strength for herself and her clients, and a source of opportunity
to further the development of a true political or class consciousness. If the
legal system is understood as nothing more than people in rooms who
deploy their power through authoritarian symbols and imaginary laws,
every social conflict that is channelled into such a room becomes an opportunity to challenge the dominant consciousness in a public setting. Normally
this opportunity is denied to clients in their everyday lives because they are
isolated from one another within powerful bureaucratic structures, but the
i;
59. An excellent critique of the liberal assumptions implicit in the adversary process is
found in Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics,
1?78 Wts. L. REv. 30 (1978). On the contradiction between the requirements of the professional responsibility code and effective public-interest law practice, see Bellow and Kettleson.
From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58
B.U. L. REV. 337 (1978).
402

408
403
[Vol. XI:369
conflict which brings them to a lawyer's office forces them into a cnsts
which disrupts their private routines. This crisis forces clients to come to
terms, in some way, with their relationship to the system, and to the social
order as a whole. The issue for a client is not initially a legal one that can be
addressed by informing him of his abstract legal rights; the issue is a
political one which requires that he assert his human needs in relation to
others with whom he is in conflict. The lawyer is therefore in a crucial
position-not "as a lawyer," but as an ordinary person with special experience-to empathically comprehend these needs and help the client to articulate them in the most effective and meaningful way possible.
In order to do this the lawyer must completely divest herself of the
sense that she is merely a neutral and objective figure. This depends on
perceiving every social conflict that gives rise to a legal proceeding as an
opportunity for both her client and herself to develop a sense of interpersonal power through overcoming the alienation and powerlessness that
normally envelops them both in their daily routines as private citizens. Of
course, a critical aspect to the lawyer's job will be to provide the client with
legal assistance, but this division of labor need not define the lawyer's way
of being in relation to the client.
A description of a landlord-tenant lawyer's practice helps to reveal the
lawyer's potential for creating a new kind of relationship. When a tenant
first comes to the lawyer's office, the lawyer attempts to discuss what the
tenant can do for himself. 60 The lawyer does this, first, in order to resist the
client's tendency to see himself as powerless and to see her (the lawyer) as his
savior, and secondly, because she wants him to understand her whole situation-to understand, for example, that she is a working person who must be
paid for her time. She may ask, for example, if the tenant has met with. other
tenants in his building to discover their common problems in relating to
their landlord, if he is aware of the work of the local tenant union, and so
forth. Putting the client in touch with others in similar situations is itself an
important pan of her work and she brings this out early in her meeting with
the client. If the client arrived feeling powerless and afraid of seeming
foolish in front of an attorney, she hopes he will leave feeling at the center
of a situation that he is competent to shape toward the realization of his own
ends, with her participation and support.
Assuming that the client succeeds in organizing a meeting with other
tenants in his building, he will have already taken a political action more
threatening and more empowering than any he may have taken in his entire
life. It is likely that he will never have spoken to these people before except
in his capacity as an "other tenant," exchanging cliches while passing in the
halls; now he will have spoken to them about a common serious problem
60. Much of this discussion is based on the practice of Ann Juergens in Oakland.
California.
1982-83]
409
.
e s mbol of the established authority to which they
and about challengmg on dy h . landlord When the Iawver attends their
1 ubjugate : t etr
.
'll
feel collecuve
Yally
s held at t hetr
. bUI'ldt'ng rather than her
offtce, she wt
.
.
meeung-, norm
develo ment of the group by outhm~g, on the basts
attempt t~ ~urther the .
P the olitical and legal strategies now open ~o
of her trammg and expenence, d p. I dt'ng herself as a full participant m
.
. , h being understoo as me u
them- t em
.de le al representative. At umes the mere
thei~ action rather th_an as an ot~~I tena:ts rather than the lawyer takes. on
wriung .of a letter stgne~ by f 11 t've power by a formerly unorgamzed
significance, as an asseruon o co ec I
group of individuals. .
h . . . 1 tage of the lawver-client relationship
Thus in this pracuce t e mlt~a s
er and client and, where feasi1
involves the reciprocal strengthenmdgd_o_f a~ty'tnvolves the demystification of
. . f a group In a mon, I
.
f
ble , the ormauon o
. sustame
. dm
part bv- the "professionf cation ts
the legal system, smce my~t~ I
If the situation eventually assumes more
alism" of lawyers as a socta group. d
to trial the already cooperative
of the character of a legal cas~ an g~~e an im~ortant role in the trial's
relationship ~ay enable the~~tet~t :~e ~imself as capable of directing th~
conduct, havmg ~lre_ady ~oh h is im licated. The more the initial stages of
course of eve~ts w!tht~ whi~ e rest friendship, equality' and mm_ual ~e
the lawyer-cltent relauonshtp e~p. .
.
lead to an etfecuve
spect, the more likelv- it is that. mmal
lf at cooperation can
partnership in the courtroom _nse . b made to this deprofessionalized
exam le it is often said that
Obviously, many objecuon_s ca~ e
model of the law~er~client rela~I~~s:~~~;~~at the~ c~n achieve in the legal
clients have unrealtstlc expectauo
d
'mpede the Iawver's effectivehi client deman s can I
system, that unreasona e

.
d that many clients in fact want
ness in serving the cli~nt's own ~n~~::t~~~~g to be involved in the process
wron exactly, but it is usually the case
lawyers to handle th:Ir ~ases wit
themselves. These ?bJecuonsf a_~e ~o~nders;and the political significance of
that those who raise them at t h d arion and even struggle at an interovercoming such obstacles throug ~ ~~e client The most important politif om the fact that a legal conflict
personallevel between the law~er an_
cal message a client may recetve anses r
. .
.
.
because while it is true that not every cas~ can
61 This last pomt IS especially Important . .
,'nal defense committee, there ts no
.
f
roup or an acuvtst cnm
. al
h
lead to the formauon o a tenant g
f client's political/psychologic growt
case which cannot contrib~te to the d~~~:i:~~~~~ss~ess. A personal injury case, as m~ch as
through the challeng~ to hi~ se!'s~ of .P
. e uires the client to come into contact wtth the
an eviction case or a JOb-disc~I.mnau~:m s~lt, rel~mentary school and have shaped the forma" authorities" who have: terronzed him smcef h
thort'tt'es is the lawyer herself. If the
. .. ,,
go " One o t ese au
.
h
d' ry
tion of his phantasmic Su?e.re . essional wizard but conducts herself hke t e ?r t~a
Iawver proves not to be a bnl~tant prof_
.
'th the lawyer can place the chent m a
per~on that she is, th~ expe~tence ~f mt_eracu:::s~ tion about officials in general. Out of
paradoxical relationshiP to his own tmagmary
: the discovery of his actual concrete
this experience o_f. paradox th:.c~e~ ;:~:~:';~~~etermining the contours of his possible
existence as a polmcal person, It
life.
404

410
REVIEW OF LAW & SOCIA!- CHANGE
Critical
[Vol. XI:369
forces the client to come into contact with the public sphere, a sphere which
in his imagination is controlled by governmeiu officials-endowed with virtually magical authoritarian powers. The maintenance of this imaginary
sphere through symbols of psychological terror is the State's principal
weapon against the formation of a radical political consciousness, because it
has the effect of privatizing people's experience of their own daily lives; it
functions to imprison people within isolated worlds and to depoliticize
people's understanding of their true social and economic situations. A
lawyer who merely handles her clients' cases can only serve to reinforce the
imaginary boundary that exists in the client's mind between public and
private life, and in so doing to reinforce the client's conditioned passivity;
regardless of the outcome of the case the client will be grateful to the lawyer
for having championed him in the terrifying public arena.
The client's discovery that.he is capable of taking a public action on his
own behalf is therefore extremely important psychologically, because this
action of itself can make the "public sphere" vanish. By acting on his
situation instead of being a function of it, the client may see "the State"
dissolve before his eyes into a mere group of other persons who are trying to
silence him. Such an experience can have a powerful politicizing impact on
the client's view of his entire life, even if the legal outcome of the specific
case is unfavorable.
For the lawyer, the experience of deprofessionalization can be equally
significant, because it requires giving up the pseudo-power that the State has
bestowed upon her in exchange for the actual power of discovering a way of
working that is expressive of her true political being. The notions held by
many lawyers that one should feel guilty about being a professional, that
political change must be brought about by others, that lawyers "can't do
anything" -all of these are merely expressions of a false consciousness
resulting from a sense of powerlessness. To transcend this image is to
transcend the split between one's authentic being and one's social self that is
the universal basis of alienation, and to side with the power of desire against
the forces which perpetually attempt to contain it.
405
Studies
an and will easily neutralize their isolated efforts. These officials

au th ontY which
system
ctheir power on the basis of a popular fear o f t h eir
exercise
.
'f
f
"
h are able to transform mto a mam estauon o
consent . " This awe.
t ey k passive consent which lies at the heart of contempora~y Ame~tcan
~true racy derives from the reciprocally enforced isolation which ordmary
~~P~~ impose upon one another when they deny their d~sire for act~al
P
1 and political power. Within this orchestrated alienated matnx,
persona
1 strength on a sus isolated lawyers cannot even retain their own po1ltlca
d basis much less communicate this strength to others.
h h
tame
Any transformative movement of lawyers must thus begm wit t e
formation of small working groups, where lawye:s wh~ already know ~a~h
other can begin to discuss what possibilities exist m their local communit_Ies
for delegitimating legal work, and how they can develop a sense of collective
support for one another's efforts. The general o?jective of such groups
should be to break through the privatization of ordmary legal work, so that
an alternative form of law practice like the one that we have begun 10
describe begins to achieve a degree of public legitimacy-so that, for example, a small group of lawyers that forms in Norman, Oklahoma c~n know
that there are other groups of lawyers in Ann Arbor or San Franc1sco who
are trving to realize the same or similar objectives.
Such an initial strategy follows from the theory of law and ~ega! pr.ocesses described above: that the role of the State in its legal or Ideological
capacity is to maintain the legitimacy of collective powerlessness throug? the
authoritarian control of popular consciousness. The State'~ strategy a_tfects
lawyers as much as anyone and a measure of the State s success IS the
cynicism and sense of hopelessness that many progressive lawyers currently
feel. The irony of this position is that it derives as much fro~ .our own false
consciousness as it does from any actual powerlessness that IS Impose~ upon
us from the outside. s2 And with regard to the powerlessness that we Impose
upon ourselves, the way out remains through the door.
v
CONCLUSION
Everything that we have said in this Article depends for its effectiveness
on the development of a movement of lawyers who meet regularly to further
develop the ideas that we have begun to present here, and who give one
another the strength to take the risks that a truly politicized law practice
requires. The possibility of utilizing social conflict to 'transform the legal
arena from its current moribund state into an arena where a struggle for
consciousness is waged obviously cannot be realized through the efforts of
isolated practitioners. The ,network of government officials that is the legal
411
62. See Lerner, Surplus Powerlessness,
SociAL
PoLICY
(Jan., 1979).
Part V
From Legal Theory to
Social Theory
[10]
BOOK REVIEWS
MODERNIST SOCIAL THEORY:
ROBERTO UNGER'S PASSION
PASSION: AN ESSAY ON PERSONALITY. By Roberto Mangabeira Unger.1 New York: The Free Press. 1984. Pp. ix; 300. $14.95.
Reviewed by James Boyle2
On the dust jacket of Roberto Unger's new book, Passion, is a

picture of Adam and Eve, their genitals covered by some fairly implausible greenery, being evicted from the Garden of Eden in considerable distress. At first blush the p'icture evokes the trinity of shame,
self-conscious sexuality, and lust that forms the perimeter of our ideas
about passion. After one has read Professor Unger's book, however,
the.. imag'e is likely to evoke a different vision of passion, perhaps even
a different vision of personality and politics. The main theme of the
book is the conception of "infinite personality": the belief that the
ability to transcend "contexts," to go beyond the current arrangements
of self and society, lies at the very heart of being. Seen in, the light
of this idea, the eviction of Adam and Eve can be understood as a
result of the original act of <;ontext-breaking: an assertion of infinite
possibilities that shatters a finite, if paradisiacal, social world. By
reversing the Sunday school ,story of the Fall, we can begin to understand both the-reverence and the apparent heresy that inform Unger's
radicalism. The apple is the metaphor not simply for knqwledge, but
for the knowledge of contingency: the arbitrary limitations imposed
by structures, whether of personality or of society. But if one puts it
that way, then Eve made the right choice. 3
This is a book writtep by a law professor about personality and
social thought, a book that draws its inspiration from modernism and
Christianity, its method from the great political theories of human
nature, and its power from the compelling stories about "ways of
being" that dot its pages. It begins with an eighty-nine-page methodological introduction and ends with a program for late twentieth
century psychiatry. There are, to put it mildly, a considerable number
of angles fro111 which such a work could be reviewed. I have chosen
three. First, I attempt to summarize the ideas developed in the book
1
Professor of Law, Harvard University.

Assistant Professor, Washington College of Law, American University. Glasgow University,
LL.B., 198o; Harvard Law School, LL.M., 1981.
3 This vision of the Fall has been held both by the more optimistic salvation religions and
by those who believe that discussions of religion actually use the deity as a metaphor for the
infinite potential of the human spirit (pp. 27-28).
2
xo66
Critical
410
411
Studies
ro68
BOOK REVIEW
I067
and to describe how they relate to Professor Unger's larger work on

social theory. Second, I discuss the difficulties of building a political
theory on a conception of human nature, a procedure that modern
philosophy understands as involving the forbidden leap from fact to
value, from description to prescription. Third, I talk about modernism, the apocalyptic and subversive doctrine that gives this work
much of i~ "bite,". but that also seems incompatible with the degree
of abstraction required of a speculative treatise on human nature. In
the conclusion ~ d~al with. the core of Unger's project, his attempt to
fuse the grandiosity of mneteenth century social thought with the
corrosive particularity of modernism.
I.
If there is a single "mood" that seems to unify contemporary visions
of self and society, it consists of the pervasive recognition of contextdependency. 4 The intellectual webs in which we create reality and
the channels of routinized social power through which reality i~ created. for us, have lost at least some of their transparent, natural
quality; they now appear as artificial and largely unchosen restraints
on the ways in which we can think and act. It is important to realize
that this is not merely an intellectual problem. By looking at all
mental structures as "contexts," we collapse the boundaries separating
the theoretical from the practical, the personal from the political. It
does not matter whether we are talking about the social construction
of reality, the ideas of Freudian psychiatry, the unspoken hierarchies
of the workplace, the implicit structure of a love affair, or the liberal
theory of the state. These are all arenas in which we face what
Professor Unger calls "the problem of contextuality": the ambivalent
experience of being (necessarily) embedded in a context that defines
the possible and the impossible, or separates sense from nonsense
and, at th~ same time, of transcending that context - having mo~
mentary glimpses of ways of thinking and being that cannot even be
translated into, let alone adequately expressed by, the current vocabulary of social power or self-understanding.
The idea of the paradoxical status of contexts underscores the
importance of -a more personal, existential dilemma: the awareness
that our relations with others are both necessary and threatening.
"We present to one another both an unlimited need and an unlimited
danger, and the very resources by which we attempt to satisfy the
4
Among the intellectual movements that have "context-dependency'' as one of their central
are Wittgenstei~ian linguistic theory, Mentalite history, hermeneutic philosophy,
th1ck-descnpttve and structuralist anthropology, (some) literary criticism, nonpositiviStic sociology, ethnology, and ethnomethodology. In view of its concehtration on "situation sense " one
might even include legal realism.
'
p~occupa~o~s
HARVARD LAW REVIEW
[Vol. 98:1066
former aggravate the latter" (p. 20). This "problem of solidarity"

could be seen as the cause of the problem of contextuality, 5 but Unger
chooses to" treat< them as separate, though (obscurely) related phenomena, and it is around these t~o paradoxes that Passion revolves.
These paradoxes are also the key to the relationship between this book
and Unger's recent work on social theory. 6 His theory of society which includes a detailed institutional plan describing how we might
open up the state to self-transformation - is premised on the ambiguous status of the contexts in which we confront the Other. Passion
represents his attempt to work out these ideas as they appear in the
interactions of everyday life. Unger needs to transpose the ideas to
the realm of "the personal" because "models of direct relations between
people form the elements of whole schemes of social life. Those
schemes are not realized and cannot be judged until they have been
changed into the small coin of personal encounter and experience" (p.
66).
In the introduction - which takes up the first third of the book

- Unger argues that it is possible to develop a normative conception
of personality, a conception that fuses description and prescription
without succumbing to either logical skepticism or sociological relativism. He begins with a series of extended stories about particular
artistic and theological visions of personality and works his way up
to a description of the Christian-romantic vision that provides the
conceptual raw material for his project. 7
The Christian-romantic vision of personality stresses two main
themes: "the primacy of personal encounter and of love as its res See Kennedy, The Structure of Blackstone's Commentaries, z8 BuFFALO L. REv. 205, ZII2 13 (1979) (discussing the "fundamental contradiction that relations with others are both nec-
essary td and incompatible with our freedom''). On the basis of Kennedy's article, one could
afgue that this fundamental contradiction, in some sense, produces the modes of thought or
contexts (for instance, liberal legal theory) in which we obscure or "mediate" the cognitive
dissonance that the contradiction causes. At the same time, the cpntradiction ensures the
disruption of these contexts by constantly reappearing.
6 Unger, The Critical Legal Studies Move.ment, 96 HARv. L. RE\t. 561 (1983); R. Unger,
Politics: A Work in Constructive Social Theory (forthcoming).
7 Space does not permit a full account of Unger's compelling description of available im~ges
of ~ersonality. These include the heroic ethic (pp. 53-55), the ethic ~f ."fusion wi~ ~~ impersonal absolute" (pp. 57-62), Confucianism (pp. 65-67), and the Chrisuan-romanuc VISion (pp.
2 2-39, 69-76). The first two fail because of their attempt to immunize the self from the d~gers
posed by others (p. 62). Confucianism and the Christian-romantic' vision, on the other hand,
offer us "corrigible" images of personality. Confucianism stresses the connection between the
personal and the political, the idea that others should be treated as ends, not means, and the
need to understand the interrelationship between the individual passions and a central telos, or
mode of being. The Christian-romantic vision is dealt with in the text. Unger takes these
theO:es and subjects them .to "modernist criticism" in order to rid them of their ope major defect:
a 'tendency to give a naturalized picture of the wo,rld, in which the provisional and temporary
arrangements of some social hierarchy are seen as reflective of a divine plan or human nature.
The ideas that remain are used to construct his account of the passions.
412

I98S]
Critical
BOOK REVIEW
1070
demptive moment, and the commitment to social iconoclasm expressive of man's ineradicable homelessness in the world" (p. 24). ~By
connecting personal encounter with "virtue," the first theme supports
the idea of a teleological progress in which "[w]e advance in selfunderstanding and goodness by opening ourselves up to the whole life
of personal encounter rather than by seeking communion with an
impersonal, non-human reality" (p. 24). Unlike the picture offered by
Confucian philosophy - a "natural" order of personal roles, each
with its attendant virtues, through which people could achieve the
good - the Christian-romantic vision depends on "the willingness to
put personal attachments up for grabs" (p. 25).
By emphasizing this aspect of the Christian-romantic vision, Unger
lays the basis for his concentration on context-transcendence rather
than context-dependency. The mainspring of the passionate virtues is
clearly the urge to go beyond the context provided by established
forms of personal relations, intellectual inquiry, and social life. This
idea is picked up in the second theme of the Christian-romantic vision,
the "iconoclastic attitude toward particular social orders" (p. 25). Such
an attitude implies that "[t]he logic of claims that any given set of
social categories establishes must be overridden whenever it clashes
with an opportunity to extend further into personal expression or social
practice the qualities that are most fully realized in faith, hope, and
love" (p. 25).
In conjunction with the Christian-romantic vision, Unger develops
the notions of modernist criticism and context-smashing. The latter
two ideas are supposed to act as safeguards against theoretical complacency. By combining the rich texture of the Christian vision of
personality with the corrosive quality of modernism, Unger hopes to
wall-off the two counterclaims with which theories of human nature
must deal. First, there is the claim that it is not logically possible to
deduce norms from facts. Second, there is the claim that it is not
sociologically possible to give a nonrelativistic description of human
nature. Unger must deal with both of these arguments simultaneously
because their combined force has converted the genre in which he is
writing - the speculative treatise on human nature - from the
universal language for descriptions of the good life, into a literary
curiosity, known best to intellectual historians and first-year philosophy students.
At its most abstract level, the argument Unger uses to deal with
these two critiques is simply a dou,ble negative. He turns the claim
that everything is contingent back on itself. Thus, he can argue that
because no vision of society and no conception of personality can
exhaust or fully express human potential, there does seem to be a
nonrelative facet of personality: its capacity constantly to transcend
the limits of the possible or the desirable - limits demarcated by the
reigning "context" of intellectual and social life. The only noncontin-
413
Studies
HARVARD LAW REVIEW
[Vol. 98:1066
gent phenomenon is contingency itself, and "infinite personality" appears to be contingency clad in the robes of human nature. Whether
this argument actually overcomes the fact/value dichotomy is a more
complex issue, one I will take up in the next section.
In the main part of the book, Unger presents his discourses on the
passions. The passions are the noninstrumental. dealings we have 'v_Vith
other people, the modes of being that orgamze and are organ~zed
around the antinomy of "need and danger" at the heart of our relatiOns
witli others. Unger's account does not present the passions as merely
a "dangerous supplement" to either reason or social life (pp. 101-05).
Rather it is that the passions provide the personal context for the
proble~ of solidarity; they "ring the changes on the relations b~tween
our reciprocal and infinite longing for one another and our reciprocal
and infinite terror" (p. 100). In exploring this context, Unger moves
beyond the method that the bell-ringing anal~gy sugg_est:s; his account
does not simply run through the list of possible vanations on terror
and longing, but develops the passions as biographical and conceptual
mediators of the existential contradiction between our need and our
fear of other people, the mundane incarnations of the antino~y between self and others. These incarnations range from the maJor responses of love and hate, through the "proto-:social passions" of lust
and despair, to the minor variants of faith, hope, and ~ust, envy,
pride, and jealousy. Each passion is describe~ so as to _brmg out not
only its connection to the antinomy of long~ng and Jeopardy. (the
problem of solidarity) but also its expression of both context-dependence and context-tra~scendence (the problem of contextuality). Lust,
for example not only embodies the sense of need and danger with
which we c~nfront others, but also expresses our simultaneous inability to exist without, or to exist completely within, a given context of
personal possibilities.
.
.
From this double dialectic of fear and longmg, conformity and
transcendence, Unger builds to his conclusion. The Siren-songs of
our vices are revealed as ambiguous phenomena that owe much of
their allure to the context-smashing impulses to which they give a
perverse form. Conversely, it is ~e passionate virtueS' ~a~ enable us
to go beyond the limits of current arrangements, to discover the
extraordinary within the ordinary"; it is these on which "the good life"
is founded. The alternative strategy of withdrawal from the shocks
and dangers of social life does not enable us to solve the problem of
solidarity. "The more a person indulges in a concern for defense,
distancing and disinvolvement, the more he denies himself the resources for self-construction and self-transformation; he becomes the
master of an empty citadel" (p. 125). Instead, those who have learned
the lesson of the passions must accept the heightened mutual vulnerability that is the prerequisite to transformation. }n their. "ardor and
gentleness" (p. 271), they have discovered that [s]alvatwn through
414

1985]
BOOK REVIEW
Critical
I07I
the acceptance of vulnerability is the only kind of salvation there

really is" (p. 300).
In the app~ndix Unger provides "A Program for Late TwentiethCentll:ry ~sychiatry." . Threa?in~ his way through the debate between
psychiatnsts and anti-psychiatnsts, behaviorists and neurobiologists
~e uses the pro~lems of contextuality and solidarity, and their media~
tion by th.e passiOns, as the key to an understanding of mental illness.
On:e agrun, need ~d fear, conformity and transcendence, form the
honzontal and vertical axes of explanation.
But recognition of the problems of solidarity and contextuality is
the smallest part of Unger's program. By demonstrating the contingency o~ the conceptual structures within which we define both reality
an.d sanity, th~se problems show that the task of policing the boundaries of a. socially create,? "reason" is an eminently "political" one.
The very Idea of modermst context-smashing on which Unger's essay
depends should make u~ awar~ that the "false-necessities," generated
by the st:ucture of social reahty, will be replicated inside the psychoanalytic theories that we offer as maps to those who have somehow
become es~anged froi? that structure. For example, in most schools
of conve~tional psychiatry the extruded person is encouraged to reintegrate himself into the social framework of understanding through a
co~ceptual m~e ~f explanation that mirrors, and thus rigidifies, the
society to. which It acts as the reentry point. In other words, psychoan~~c. theory offers opportunities to replicate, but not to transform, Individual and social contexts.
!h~s critiqu~ of psychoanalysis closes the circle opened at the
begm~mg ~f this section. We have returned to the central theme of
Un?~r s social theory- an expansion of the possibilities for the selfrev_Ision of s~ructures, whether those structures are conceptual, instituti~nal, or. mte.rpersonal. .The next question to consider is whether
the Idea of mfimte personality and the goal of increasing the plasticity
of structures can somehow be combined in such a way as to allow
U?ger to overcome the apartheid that contemporary philosophy main~~s be.tween fact and value. If he cannot do so, there will be a
dis~~ction be~w~en his descriptions of human personality and his
political prescnptions for the good life.
II.
. . If there is one intellectual debate that rivals in sterility and repetItivene~s the jurisprudential quest for the essence of law, it is the
P.erenmal attempt by moral philosophers to disassemble or at least
Circumvent, Hume's Guillotine. 8 This piece of philosophJcal cutlery
noteworthy ~ent attempt that comes to mind is Alasdair Macintyre's s
19 1
book, Afte-r Vzrtue: A Study 1n Moral Theology, in which the author offers a subtle and powerful
8
The
mo~t
---- --
1072
415
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HARVARD LAW REVIEW
[Vol. g8:1o66
is the metaphor that guards the boundary between the realm of facts
and the realm of values and that asserts that the only passport between
the two is a (logically disreputable) leap of faith. One cannot induce
or deduce a norm (people should not fly) from a fact (people do not
have wings), or vice versa. This makes moral a?~ political theories
based on human nature a rather dubious proposition. An opponent
of one's theory can claim that it links selective description to political
prescription by means of an arbitrary .assumption. .
.
Passion contains both an affirmation and a demal of the Importance of Hume's Guillotine and of the separation that it implies between fact and value and consequently between personality and politics. I will deal first with the element of denial because it is the most
obvious part of Unger's work. On the very first page Unger tells us
that his major methodological concern "is to reconceive and reconstruct the ancient and universal practice of attributing normative force
to conceptions of personality or society so that this practice can better
withstand the criticisms that philosophy since Hume or Kant has
leveled against it" (p. vii)~ One could not ask for a clearer rebellion
against the hegemony of the fact/value dichotomy. Yet, as the next
few paragraphs may show, the way in which this rebellion is to be
brought off is rather more obscure.
In the first section I pointed out that, at the most abstract level,
Unger's argument seems to take the fo~ ~fa do~ble ~egative: The
only noncontingent aspect of personality IS precisely I~ contin?ent
character, the fact that it always transcends the boundaries provided
by the currently possible or imaginable forms of life. On the. level .of
moral theory, Unger uses this double-negative argument as the ?asis,
first of a critique and, then, of a reconstruction. of the avrulable
non~ative images of personality. He argues that if we take these
images of human nature and "purge" them of the ~arts that tend to
deny the infinite quality of personality, we will discover that the
remaining theoretical ideas "converge." By "convergence" Unger
seems to mean that these images .tend to draw .closer together, that
they give us similar answers to our questions. This idea of "convergence" allo,ws him to use the abstract (and definitionally contentl~ss?)
idea that personality is infinite as support for ?t~ concrete ~se~~ons
about vices and virtues offered by the Chnstian-romantic VISIOn.
Viewed this way, Unger's argument about moral theory has two m~n
parts. The concept of infinite personality seems to allow us to skirt
relativism while the idea of "convergence" apparently offers us good
reason to 'believe in the Christian vision and thus allows us to skirt
not only relativism but contentlessness as well.
history of moral philosophy, but follows it with a less powerful attempt to overcome the facti
value dichotomy by appealing to a neo-Aristotelian teleology. See also D. HUME, A TREATISE
OF HUMAN NATURE (London 1740).
416
BOOK REVIEW
417
1073
On the level of moral action, Unger seems to rely on the idea that
we proceed toward the good by (virtuous) context-transcendence (p.
89). If we synthesize the levels of theory and action (which I probably
should never have separated), we are left with the idea that we are
most empowered, most truly ourselves, and thus most truly good,
when we engage in context-transcending activity that is informed by
the virtues embodied in the Christian-romantic vision. In other
words, by knowing "who we are" we will know, in part, what we
should do - this is a perfect example of what Unger calls "the
classical style of argument." In relying on this kind of argument,
Unger is obviously rebelling against the modern conviction that facts
and norms must be kept separate. Why does he do so?
Unger hopes to make three points by using this chastened "classical" style of argument, which attributes normative force to conceptions of personality: first, that there are phenomena in which description and prescription are fused; second, that personality is just such
a phenomenon; and third, that a philosophical method committed to
separating fact and value will consequently be both wasteful of a great
tradition of theories of human nature and ultimately mistaken. The
last point brings us back to the concept of "converging" images of
personality- a convergence that Unger thinks we would be wrong
to ignore.
I believe that, despite their subtlety, neither the argument about
"convergence" nor Unger's defense of the classical style of theorizing
is capable of avoiding the problem posed by Hume's Guillotine. The
argument about "convergence" is particularly fraught with problems.
Unger claims that he is not relying on some idea of an overarching
moral order (p. so), but it is hard to see how one can identify moral
"convergence" without using some sort of noncontingent metaphysical
grid as a measuring device. Compare this idea of convergence to the
type of argument for which Unger criticizes existentialist metaphysicians like Sartre and Heidegger. "[A] metaphysic," he says, "projects
a view of subjectivity and intersubjectivity into a picture of ultimate
reality and then pretends to derive from this projection the very image
of man that had originally inspired the metaphysical account" (p. 82).
Are the problems Unger identifies with the typical metaphysical argument so different from those faced by his own picture of the convergence of "chastened" images of personality? These images were
supposed to converge (though they represent no underlying ultimate
reality), and they are neither reducible to, nor descriptive of, an
essence of human nature (even a "negative" one). Could Unger be
"projecting a view of personality" onto the "corrigible" visions of
human nature - and then pretending to derive from these visions
the very image of personality that inspired the original account?
So much for "convergence." What of Unger's defense of a. revised
form of the classical style of argument, a style that simply attributes
1074
HARVARD LAW REVIEW
[Vol. 98:ro66
normative force to conceptions of personality? I found this part of

Passion confusing. Unger seems to claim that the classical style he
proposes is different from an Aristotelian teleology (p. 45) - which
would assert that "things tend toward a purpose natural to them and
that the achievement of this purpose is their good" (p. 44). Yet at the
end of the introduction, in explaining why we should live in the way
his essay suggests, he gives as reasons the two propositions that "this
is the kind of being we really are and . . . [that] by living in this
fashion we empower ourselves individually and collectively" (p. 8g).
I do not object to the conjunction of these reasons, but when Unger
then argues that both of them "state the same thesis under different
names" (p. 8g), it becomes hard to differentiate his argument from
the Aristotelian one.
If we leave aside Unger's attempt to circumvent the fact/value
dichotomy and we concentrate instead on his direct attack on Hume,
we are left with three main points. The first is an appeal to the
tradition exemplified by the classical style (pp. 39-43). The invocation
of such a tradition would appear ironic in a book devoted to the
transcendence of contexts and conventions were it not for Unger's
apparent desire to revise the classical method in order to rid it of its
closed, naturalistic tendencies. The second part of the argument is
the claim that the problem posed by Hume's Guillotine arises only if
we operate within a paradigm of rationality that divides the world
into a realm of facts and a realm of values (p. 41). Thus, according
to, the third part of the argument, the Guillotine simpJy leaves us in
the position of saying, "Why should we draw normative conclusions
from factual premises?" This is a question to which Unger responds,
in the language of Camus and Didion, "Why shouldn't we?" 9. - and
then twists the knife by adding his suspicion that we cannot help but
do so (pp. 3, 42).
If we look closely at this three-part argument, it seems to share
the defects of Unger's idea of "convergence." Neither the claim that
the only noncontingent phenomenon is contingency itself, nor adherence to a revamped "classical" style, can provide Unger with an
epistemologically unassailable way to bypass Hume's Guillotine. The
former offers an aprioristic basis for theorizing only as long as one
does not give any content to the vision of infinite personality - but
that is exactly what Unger is trying to do. The latter method depends
on a rejection of the fact/value dichotomy as a way of thinking about
the world. This is quite conceivable, but it would seem to be a
dubious basis for authority (all the other theorists could claim the
same rejection) even if Unger did not appear to rely on that dichotomy
elsewhere in the book (pp. vii, 4o-41, 46, 87). I am daring to dismiss
9 A. CAMUS, THE MYTH OF SISYPHUS AND OTHER ESSAYS (1955);
IT LAYS 213 (1970).
J.
DIDION, PLAY IT As
418
BOOK REVIEW
Critical
1075
these complex arguments in so cavalier a fashion only because I

believe that Unger has available to him an alternative set of arguments
that justify his project and that are more compatible with its modernist
ideas. Paradoxically, in order to develop these arguments we need to
turn away from Unger's attempt to avoid Hume's Guillotine and
toward the part of his work that actually seems to support Hume and
Kant in their criticisms of "political theories of human nature."
The standard use of a normative theory of personality is to establish one particular form of social arrangement as "naturally" the best.
Hobbes, for example, argues from an avowedly scientific conception
of human appetites and an analytic conception of power, to a normative conception of the state - a conception that justifies a particular form of government. 10 Because human appetites are potentially
limitless, and because an individual's ability to satisfy her appetites
consists in the excess of her power over everyone else's, we must have
ah unchallengeable central government. The dangling and apparently
uncontroversial value-choice ("if we prefer order over chaos") is tucked
straight back into the conception of human nature. If we are as
Hobbes described us, we cannot help but have that preference.
It is against this kind of. "closed" theory of human nature, which
moves from the fixed properties of personality to the canonical form
of society, that Unger deploys the notion of infinite human potential.
If the most salient feature of personality is its capacity to go beyond
all forms of social life, to transcend any setting in which it is however
briefly embedded, then the resulting attitude has the same corrosive
consequences for closed theories of human nature that Hume's Guillotine had for all theories of human nature.
A' closer analysis of the last point may provide a clue to a possible
alternative justification of Unger's project. One could argue that the
notion of infinite personality deals with the same phenomena on the
existential level that Hume's Guillotine dealt with on the logical level.
By this I mean only that most skepticism about theories of human
nature is actually fueled by the mundane discovery that everyone's
personality is both complex and contradictory. Consider the social
Darwinian theories that purported to deduce a justification for laissezfaire capitalism from an analysis of the "essentially" competitive qualities of human nature. This kind of theory is certainly easy to debunk
by using Hume's Guillotine. But I would claim that such debunking
really owes its convincing quality to our own "lived experience" that
competitiveness is only one of the "golden swarm" of contradictory
qualities that makes up human life. It is this "lived experience," more
than any logical pyrotechnics, that tends to undermine the bridge
between the factual description of human nature and the normative
prescription of moral consequences.
10
See T. HOBBES, LEVIATHAN (London I6SI).
419
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HARVARD UW REVIEW
[Vol. 98:Io66
Thus, it is precisely our personal awareness of the other modes of

being, suppressed by a closed cl:Um abou~ the essence _of human
nature, that gives the fact/value dichotomy 1ts argumentative power.
This is made particularly obvious if one contrasts Hume's m~ral skepticism with his critique of causation and inductive reasomng. The
"problem of induction" - that no amount of prior experience . can
give us logical grounds for predicting the future - was potential_ly
just as debilitating to the empiricist/scientific. project as Hume's ~ml
lotine has been to moral reasoning. But m the absence of ltved
experience to which it could be connected, the problem of ind_u~t~on
remained as merely a philosophical brain-teaser that empmc1sts
warned us to ignore, for without induction "science is impo_ssible." 11
The fact/value dichotomy, on the other hand, is an appealmg argumentative device precisely because it is grounded on the everyday
discovery that our categories for understanding personality or personalities are doomed to be nonexhaustive and thus that any moral or
.
political judgment we draw from them is arbitrarily exclusive.
But how does all this help us? If Unger cannot prove that h1s
moral vision is the right one, can he not simply offer reasons why :ve
should look with sympathy on his attempt to construct a normative
theory? He could, for instance, point out that his theory does three
things that others fail to do. First, it deals with our ev:ry~ay exp:rience of the infinite quality of personality. Second, 1t hnks th1s
experience to an aversion to closed theories of human nat,ure. !hi~d,
it uses the first and second points to explain why Humes Gmllotine
seems to work so well.
Unger however, does not use the form of justification I have just
outlined. 'He rejects the pragmatist method of "offering reasons" (p.
43). He claims that these reasons "achiev: determinancy [si~] o~ly to
the extent that they continue, covertly, to mvoke a s_ubst~tive 1m~ge
of human nature" (p. 43). This argument seems mcons1stent w1th
both the fact that Unger actually does offer such reasons in support
of his vision (pp. 84-87) and the fact that, eve~ if "infin~te. personalit:(
is not a "substantive image of human nature, the Chnstlah-rom~tic
embodiment that Unger gives it certainly is. Consequently, I thmk
Unger should rely not on some reformulated classical style of argument, but on the reasons and the experiences that actually make that
argument convincing.
.
.
In this section I have argued that Unger falls to c1rcumvent
Hume's Guillotine in the sense that he does not prove that his political
vision is required by the nature of personality. But if_ we aba?don
the search for some new source of this proof, we are stlll left w1th a
powerful set of reasons in favor of the attempt to create a normative
conception of personality. And from the range of reasons that Unger
II B. RUSSELL, A HISTORY OF WESTERN PHILOSOPHY 674 (1972).
420

BOOK REVIEW
Critical
1077
c~uld give us, perhaps the most important is that he offers to deal
With the concrete experiences that .expose the procrustean nature of
any closed theory of personality. This is an important offer because
these are the very experiences that have given critical salience to
Hume's a~stract proposition in deontology by weaving multiple instances of Its confirmation into the fabric of social life.
The s~e point could be made in another way. Unger is simply
mo:~ convmcmg when he concentrates on experience and on the
politics of _everyday life,. rather than on the formal logical categories
f?r producmg truth. It IS the small-scale phenomenologies of aspiration that are the most persuasive part of his attempt to undermine
:'clos_ed" theo~es of personality and to erect his own version of the
mfi~ute pot~ntial of the human spirit. I have stressed this small-scale,
anti-form~1st aspect of Unger's argument because it is more than just
a pragmatist moral theory. It provides the raw material for the modernist vision of the world.
ill.
The greate: p~t of P~sion consists of Professor Unger's attempt
to use modermsm m two mterlock.ing ways. He enlists its subversive
tendencies to criticize (and thus strengthen) the Christian and Con~ucian co~ceptions of personality, and simultaneously he employs it in
Its own nght as the source of a flawed but redeemable vision of the
good li~e. But what is the modernist "mood," and how can it provide
the bas1s for a social theory?I2
The modernist picture of society is best captured in the famous
phrase
from the Communist Manifesto- "all that is solid melts into
air " 13 B t
d
u mo _er~!sm se~ms ~o offer a perspective on this picture of

" .
soc1al evaporation that 1s different from the one provided by the
authors of the Manifesto. Rather than concentrate on some particular
~eat~re_ of society- on the interests of a class, or the "nature" of an
mstitu_tion -:- th_e modernist vision focuses on the process of change
and dissolution 1tself. In a similar vein, the modernist movement in
art was _l~ss an argument/or a particular style than a reaction against
the traditional modes of artistic representation. The classical "forms"
of beauty, such as representational painting and the nineteenth .;entury
novel, had once seemed to be the natural and traditional contexts for
12
Some background works on modernism are D. BELL, THE CULTURAL CONTRADICTIONS

OF CAPITALISM 46-84 (1978); M. BERMAN, ALL THAT Is SOLID MELTS INTO AIR (l 8 ); E.
9 2
LUNN, MARxisM AND MODERNISM (1982); MODERNISM 189o-1930 (M. Bradbury & ]. McFarlane eds. 1976); S. SPENDER, THE STRUGGLE OF THE MODERN: AN HISTORICAL STUDY OF
LUKACS, BRECHT, BENJAMIN, AND ADORNO (1963).
13
K. MARx & F. ENGELS, MANIFESTO OF THE COMMUNIST PARTY (1848), reprinted in
THE MARx-ENGELS READER 335, 338 (R. Tuckered. 1972). See generally M. BERMAN, supra
note 12.
1078
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HARVARD LAW REVIEW
421
[Vol. 98:Io66
expression. But modernists portrayed them as rigid and limiting conceptual boxes, impediments to the communication of experience. .
The attack on traditional artistic modes of expression was easily
transferable to social "forms," such as codes of etiquette, moral injunctions, and political or familial institutions. In other words, these
social forms were seen as a barrier to self-realization, just as the
artistic traditions were seen as a barrier to art, and they we~e condemned in the same terms - as an outdated straitjacket that distorted
human potential by repressing instinctual desires. Our available repertoire of metaphors for understanding the social world is chock-full
of these subversive modernist insights. Unger tries todraw on this
shared background of modernist ideas in order to present his argument
abqut forms of life, societies, and particular visions of per:onality. ~ll
of these socially constructed contexts can lay some drum to bemg
necessary for communication; the Tower of Babel offers a metaphorical reminder of what happens when a shared "context" is completely
shattered. Yet as Unger points out, none of these contexts is capable
of adequately expressing the infinite potential of human personality.
Each context can only hint at the possible ways of life suppressed
beneath the glassy sheen of a naturalized social world.
This feeling that the infinite is somehow imprisoned within the
finite gives rise to a deep rage against the existing order - whether
of soc;:iety, or art, or self-understanding.- and to a corresponding ~oy
in undermining that order. Unger wants to incorporate th1s exaltatiOn
of context-smashing into his ideas, but first he .feels he must rid it of
some of its Dionysian and apocalypti<; rage. H.e argues that a person
who adopts such a purely modernist view in.,evitably rejects the possibility of any kind of fulfilling communal life because she cannot
aQ.mit the context-dependency that it would imply, or take the risks
of heightened mutual vulnerability that it would involve (p. 63).
Daniel Bell puts the issue in a more disapproving light as he muses
on the disruption that modernism has implied for "the bourgeois world
view":
The deepest nature of modern man, the secret of his soul as revealed
by the modern metaphysic, is that he seeks to reach out beyond
himself; knowing that negativity - death - is finite, he refus~s to
accept it. Behind the chiliasm of modern man is the megalomania of
self-infinitization. In consequence, the modern hubris is in the refusal
to accept limits, the insistence on continually teaching out; and the
modern world proposes a destiny that is always beyond: beyond morality, beyond tragedy, beyond culture. 14
Where Bell sees a sinfully proud, millenia! fervor that has shattered
the middle-class values of "common sense" and deferred gratification,
t4
D. BELL, supra note 12, 49-50 (1978) (footnote omitted).
422
423
BOOK REVIEW
1079
Unger sees a perverted but corrigible version of "infinite personality"

that has tried - and failed - to solve the problem of contextuality
through resort to total denial. In the place of this total denial, Unger
offers us a chastened brand of modernism - one that accepts the
inevitability (and even the desirability) of the limitations imposed by
the cultural context in which one is embedded, yet insists nonetheless
on the possibility of self-realization, the assertion of the infinite within
the confines of the finite.
This brings us to the first major difficulty Unger has to face. There
is a terrible danger that his ideas are going to be turned into some
kind of cosmic balancing test, in which we weigh context-revision and
context-reliance with our metaphysical thumbs clamped subtly, but
firmly, on the side of revision. It would be tragic to see this trenchant
and subtle thinker relegated to the post-realist law professor's heaven
- a distinctively dispassionate realm where a contentless "freedom"
is forever being "balanced" against an equally con tentless "security."
Those whom the gods wish to destroy, they first make trivial.
Unger escapes trivialization by weaving phenomenological description into the abstract categories of his epistemological and social theory. His overall project is to give content to the concept of infinite
personality through a biographical account of self-assertion, through
a social theory that describes the possibilities for the "expanded selfrevision" of social and philosophical structures, and through a set of
stories that link self-assertion to social theory by means of a "thick
description" of the available ways of thinking about personality. Passion is mainly concerned with the first and third components of the
project: the more general social theory is still to come. But something
about this overall theoretical method seems to contradict the subversive and insurrectionary doctrine that it propounds. To be sure, the
evocative stories about "ways of being" that fill the pages of Passion
are a far cry from the Spinozan latticework of epistemological argument that characterizes Unger's earlier works. 15 Even so, there is a
lurking element of paradox. An enterprise such as Unger's seeks to
translate the interstitial reality of passionate encounter into the.abstract language of social theory and, in doing so, finds itself imaginatively 16
committed to a world of outrageous acts and everyday
rebellions that it can describe, but never create.
Consider, for example, Unger's theory of the state. Oppositional
ideologies such as classical republicanism and revolutionary Marxism
describe a concrete set of arrangements for the state and thus define
the utopian goal of a remade social world. Unger's modernist theory
IS R. UNGER, KNOWLEDGE AND POLITICS (1975); R. UNGER, LAW IN MODERN SOCIETY
(1976).
16 The phrase is Gloria Steinem's, I believe. See G. STEINEM, OUTRAGEOUS ACTS AND
EVERYDAY REBELLIONS (1983).
1080
HARVARD LAW REVIEW
(Vol. 98:xo66
d d
ds on the destabilization rights
of the state, on the other ~~ ' :~~ arrangements and break up
that would undermine eXIs ng s
ld r d fy 11 Whereas the stanstructures of hierarchy ?efore ~:~~ucon~~~t ~f the good life, Unger's
dard oppositional theones speci f
"al change Theoretical shifts
vision specifies only the process .o. s~c~ost-realist legal thought has
such as this may seem unpromismg~ess in a vain attempt to shake
shuffled uneasily fro~ conten}8 tc~~~~eaving aside the analogy to legal
off the specter of contingency.
di onance if one compares this
theory, one is still struck by a va~e sti~on to the localized guerilla
th
f ocial trans1orma
.
f
large-scale eory o . s h
a ed on the small-scale hierarchies o
warfare that modermsts ave w .;tic forms and social conventions. .
the workpla~e,. as wei~ as on arti ate on ihe most abstract side of
Perhaps It IS unfatr to c~~~e~~ turn to the "personal" stories of
Unger's theory. Bu~ even wh h" b autifully allegorical prose seems
.
k
.
th
are times w en IS e
Passton, ere
f th
ete social experiences that It evo es.
to sit uneasily on top o ~ concr f workplace conflict and personal
It is true that o~r expenences o.
b the abstract description of
be 0'1ven new meanmg Y
&
,
It
trauma can . ~;
f the dialectic between "need and 1~ar. .
aft d tories are almost mocking m their
"context-breaking and
is true that Unger's fine y cr. e s .. ns of our own personality that
ability to capture the contradictoryo~=I~me or other. But there is a
we have confidently espoused at
. ate particularity of our own
residual (elt-reality, a trace of the passt_ond by the book yet still ex.
th
ehow unrecogmze
'
.
.
expenences
and subversive
power, like a disgraced relative
.
h dat IS som
ercises a s a owy
.
ra hs must nevertheless be exwhose absence f~ot_n famdy b:oe~gecfed that a book about contextplained. Maybe It lS only: to
ini the "context" of its own style.
smashing sh?uld t~nd ~o undermin Unger's work, I find mys~lf to!n
Confronting this ~Issonanc~
It does seem that the existential
between tw~ contradicto;:e ~:~:is;'modernism" cannot be adequately
e of social theory. Precisely because
truth on which we slap
captured i? the. abstract ~angua~ found only in the actual search for
it is an exzstentzal trut?, ~ c~te:stices of every institution and evel!'
freedom that goes. on !n e
no modernist theses. There. IS
experience of s~ci:U hf~.. ~:f:e7u~al to invest one's hopes in :orne
only the
anarchistic
an JO t commitment to work where one IS future
utopia
and a consequen
17 See Unger, The Critical'Legal Studies Movement, supra note 6 ' a t 6oo . For more on this
VIEW AND THE NATIONAL POLITICAL PROCESS (1980);
point,
1 see id. at 583-602, 6II-15.
s See, e.g.,]. CHOPER, ]UDICIAL RE . H Hart & A. Sacks, The Legal Process (tent. ed.
J ELY DEMOCRACY AND DISTRUST (1980), .
p k
..,he Past o"Constitutional Theory
.
'
..
f
ss theory see ar er, .
'
1958). For the clearest cntique o proce St There is, however, a crucial difference ~tween
and Its Futuf'e, 42 OHIO ST. L.J. 223 (19 .>.
Whereas they use process to deny contingency,
Unger's project and that of the proc~ss th~onsts. 'a! structures are contingent, and thus to open
Unger is trying to heig?ten the feelmg at SOC!
them up to transformation.
I
t
'
Critical
BOOK REVIEW
Io81:
"willingly pay(ing] the pric th .

.
stance., 19 But even as I f:el or e mconformity of vision to circumpractice of these ideas, I am ::::.:f~~~c~ for the ev:eryday, localized
, am ~ot g1Vlng due weight
to a belief in the seductive side of U
theory of small-scale transformation n~~r ~ p;o]ect :- the large-scale
tici~. of .social structures by conve~':glcth rumt!, to ;ncrease the plasstabihty mto a source of chan
. e s te rom a source of
ways of looking at the world ge. ~he differences between these two
anarchism and the abstract d can ~ e~aggerated. The local, joyous
at ieast one thing: they a~re:c~~t ~~ve theory ~f the .s~te do share
measure of Unger's contributi'on th t h pehrsonal IS pohtical. It is a
'd
a e as turned "p , 1
consi ered a mainspring of both (ir ti al)
..
assiO~, ong
personal life, into a bridge betweenr~eo~wo.politics and (sentimental)
IV.
When I started on this review I
thoughts about how one

, _saw It as a chance to refine my
that the grip of the granJ~~~~~oci~ theory to perso~al life. I felt
weakened to such
eones~ such as Mannsm, had been
cussions were domi~~t:xtent that most mtel!ectual and political dismodernism Th t . d by pr?ponents of either "active" or "tragic"
.
e ragtc modermst sees all a ti
bl
the absence of any ultimate grounding ~ ?~ pro ematic, given
left to do is to lean back culti t
er 1. eas. The only thing
play of _signifiers a~ross th~ page:a0~ ~~: ~:r:un~~r:n; 'v:atch the fr;ee
The active modermst on the oth h
evzew of Books.
ing as a liberating r~ther than :rdeandb~~~s the absence of a grounddermining both social and conce . tu~o 1 lZin~ p~en_omenon. By unt~uthontarianism.' this absence
provides a momentary opening ~
fohrms of_ life. In response to the ~u:sti~~ ;.v;~: ~!wbe~~l and kother
w at action to take and wh h
f .
s
we now
active modernist has two d:~ tio~s o. l~e we should support?" the
proceed in the way we hav:p alv;: Simp e ~swers. ~irst, we will
referential discourse that is not co ys done, .m a _partial and selfhave abandoned its pretension t mpbletelly nulli~e.d simply because we
s o a so ute validity Seco d b

.
.
n ' Y concen trating on our own "local'ti "
trutlr, and power we will Ified ~n our concrete experiences of love,
a~ ~e conceptual grandiosity of
abstract philosoph~ and social ~
moral action, and not the most a~~ry ~ ut ote style of thought about
all of this apply to Unger? He i ~c ~e stye at th~t. But how does
question is, is he a moder~ist at ~~?ear Y not a tragic modernist; the
Unger seems to have it both w
H' .
.
?r
,:S
~~e:~e ~~J0t~fi~~~~ st~e o~ninetee:i'~ ~ent~~d~:i~~~:o~~ ;~~r;:!

'
19
ey
so seem qumtessentially modernist; the
Unger, The Critical Legal Studies Movement, supranote 6, at 674
!082
425
Studies
HARVARD LAW REVIEW
[Vol. 98: ro66
"deepest structure" that his work reveals is "the certainty of chance."20

The general thesis of this review is that this tension in Unger's work
is important, and that the aspect of his ideas I have chosen to label
"modernist" is more instructive than his abstract moral philosophy or
his deconstructive social theory. In the main body of the review, I
tried to show how this tension manifests itself. Thus, in the section
on Hume, I argued that Unger would be best advised to abandon his
justification and revision of the classical style of normative argument
and instead to concentrate on the concrete existential experiences that
make Hume's Guillotine a convincing argumentative weapon. When
I turned to modernism itself, I argued that Unger's aim of creating a
large-scale social theory seemed inconsistent with the corrosive, localized critiques more typical of modernist activity in art and politics.
Given the brutal simplifications necessitated by lack of space', a
reader might take me to be saying that there is a "thing" called
"modernism" and that Unger is misusing it. I do not intend to put
forward such a stupid idea; I seek only to offer an opinion on how
Passion is to be read. Are we to see this book as a description of the
essence of human nature, or as a source of aspirational stories through
which we can explain our own local moral and political struggles?
Are we to understand Unger's argument as a quasi-teleology that
avoids the facUvalue dichotomy or as an insider's report on the experiences that undermine "closed" visions of the good life? There is
no uniquely correct reading of a book, and Unger could quite justifiably claim that I am setting up false dichotomies. Neverthetess, for
me the exciting aspect of Passion comes from its ambivalent but
pronounced connection to the politics of everyday life, a conn"ection
that implicitly plays down the esse'nce of human nature, the abstract
social theory, and even the epistemological analysis for which his
earlier work, Knowledge and Politics, is so justly famous.
This is all very well, and the reader may even be convinced by a
few fragments of particular arguments. But why the general preference for the small-scale, localized vision of political and moral theory?
It is hard to answer this question within the dry conventions of
traditional analytic writing. Perhaps the easiest way to do so is to
dissect the actual experience of dealing with political thought. There
is a subliminal awareness that theoretical works such as Passion may
depend on a collective suspension of disbelief. Can a book, the mundane product of the workaday world of an academic (particularly a
legal academic), really be big enough to fit the enormous romanticized
space reserved in our mental classification system for "theories of
20 The "certainty of chance" was the phrase Andre Breton used to describe both modernism
and his own philosophy of life. Breton was a pioneer of surrealism who led the modernist
challenge to the. "context" of traditional writing styles. See A. BRETON, MANIFESTOES OF
SURREALISM (1969); A. BRETON, NADJA (I928).
426

BOOK REVIEW
human nature"? More important, perhaps, can it really mean anything outside the neat to-and-fro of academic debate? One knows, of
course, that there once were people who wrote about human nature
and that their writing did have political consequences- but that was
then, not now. Anyway, they were the famous ones, like Hobbes or
Rousseau, and the disabling feelings of ordinariness that they may
have felt about their work are hidden from us by the ,enabling myths
of history. We have been bequeathed their ideas, and if political
theory seems to be something that is simultaneously intimidating and
irrelevant to our own lives,, we can obscure that vague unease, talk
as though we were "doing it," and still produce truth convincingly by
manipulating the r,eceived learning, Perhaps the book made from our
discussions of Hume's Guillotine and modernism will be read by
others; maybe it will affect them.
The late-night angst of the troubled political theorist that fills the
preceding paragraph actually points out an important truth. There is
no easy way to make sense of your life if you accept a mental division
of labor in .which you produce truth for consumption by others. This
is particularly true if you believe that the "personal" and the "political".
are inseparable, but such a belief cuts two ways. As cynical moderns,
we may have lost the enabling (and pernicious) myth of "the great
thinker tJ:pnking great thoughts," but we have gained "the politics of
everyday life." We, have come to see that our theoretical ideas are
meaningful ,,only insofar as they reflect, and reflect back upon, our
mundane political struggles. These struggles are important because
any comm.itment to social transformation must begin in the fine texture
of our relations with others. The forms of domination against which
the activist lawyer deploys her skills reappear in her workplace and
may even be rrtore secure there because they are covered over by the
protective veil o~ familiarity. The mind/body distinction that a teacher
deconstructs in the classroom reappears in his relation to his secretary.
Power does not tidily confine itself to the public sphere and the pages
of Tlze Washington Post. It suffuses our most intimate relationships
with those we love, for we ar,e all erotic politicians in the end. .If
there is a central insight that guides Roberto Unger's work, it is this.
So Passion should not be seen as merely. the abstract "human nature"
component of an academic social theory. It is an attempt to work out
the elements of morality and power involved in our noninstrumental
dealings. with others. It is a dispatch from the front, not a treatise
on war.
[11]
Chapter Seven
The Politics of Hierarchy
There ar~ at lea~t three diff~~~~t u~~a~~~~ri~~~ . b~~~against leg~l hierarchy .m th~. fo~~r~s thj game is ~tacked in
a~'d u er middle c}ass, ~o
ing it on 1~s own mentocra 1 ~
favor of white males od -the ml~d~~stribut~d according to ment
that p~wer and rewar are ~o a s stem of equal 9PPOrtu:r:JtY.
as ment would be revealed n\ oJn terms it is socially lrtaAgain, t~k~ng the syst.em on Ih~ve as many' differences of capationaJ.:
IS not nec~ssah.r~ to ality of power and reward ~as we
c'ty and Itrole
or as muc mequ
.
n~w have' in order to achieve our social purposes.
,
these criticisms' but J don't think
I subscribe to both. of
.n each case they treat- legal
they go nearly far enough' since 1
426

BOOK REVIEW
human nature"? More important, perhaps, c~n it really mean anything outside the neat to-and-fro of academic debate? One knows, of
course, that there once were people who wrote about human nature
and that their writing did have political consequences - but that was
then, not now. Anyway, they were the famous ones, like Hobbes or
Rousseau, and the disabling feelings of ordinariness that they may
have felt about their work are hidden from us by the enabling myths
of history. We have been bequeathed their ideas, and if political
theory seems to be something that is simultaneously intimidating and
irrelevant to our own lives, we can obscure that vague unease, talk
as though we were "doing it," and still produce truth convincingly by
manipulating the r,eceived learning, Perhaps the book made from our
discussions of Hume's Guillotine and modernism will be read by
others; maybe it will affect them.
The late-night angst of the troubled political theorist that fills the
preceding paragraph actually points out an important truth. There is
no easy way to make sense of your life if you accept a mental division
of labor in which you produce truth for consumption by others. This
is particularly true if you believe that the "personal" and the "political"
are inseparable, but such a belief cuts two ways. As cynical moderns,
we may have., lost the enabling (and pernicious) myth of "the great
thinker t!Vnking great thoughts," but we have gained "the politics of
everyday life." We have come to see that our theoretical ideas are
meaningful only insofar as they reflect, and reflect back upon, our
mundane ;political struggles. These struggles are. important because
any commitment to social transformation must begin in the fine texture
of our relations with others. The forms of domination against which
the activist lawrer deploys her slqlls reappear in her workplace and
may even be rrtore secure there because they are covered over by the
protective veil of familiarity. The mind/body distinction that a teacher
deconstructs in the classroom reappears in his relation to his secretary.
Power does not tidily co~fine itself to the public sphere and the pages
of Tf.t,e Washington Post. It suffuses our most intimate relationships
with those we love, for we are all erotic politicians in the end. If
there is a central insight that guides Roberto Unger's work, it !s this.
So Passion should not be seen as merely the abstract "human nature"
component of an academic social theory: It is an attempt to work out
the elements of morality and power involved in our noninstrumental
dealings with others. It is a dispatch from the. front, ndt a treatise
on war.
[11]
Chapter Seven
The Politics of Hierarchy
There are at least three different reasons for being

against legal hierarchy in the form I have just described.. Taking it on its own meritocrati.c terms the game is ~tacked in
favor of white males of the middle and upper middle class so
that power and reward are -not distributed according to merit
as 'merit would be revealed in a system of ~qual, Qpportun.itY.
Again taking the syst,em on its own terms it is socially irr!ltional: it is not necessary to have as many differences of cap~
a.ity and role or as much inequality of power and reward as we
now 'have, in order to achieve our social purposes.
1,
'
I
I subscribe to both of these criticisms, but l don't think

they go nearly far enough since in each case they, treat legal
I
428
429
Reproduction of Hierarchy
79
hierarchy as in itself socially neutral. Even if the rank orderings of law school applicants, law schools, law students,
and law firms were accurately reflective of merit and optimally
adjusted to achieving the benefits of the division of labor, I
would be against them. The attitudes, behaviors and relationships associated with legal hierarchy constitute, in themselves,
a social perversion.
To the very limited extent that legal hierarchy flows from
the division of labor and from differences in individual talent
(whether we think these have an irreducible genetic base or
are merely the inescapable consequence of the socialization of
children), it may be a necessary evil. But it is something to
be hated even as we enjoy its benefits, and it is an argument
against living in a way that requires those benefits.
As a matter of fact, I don't think we'd lose anything at
all in terms of social product if lawyers, law professors, sec-
retaries, paralegals and law firm janitors were all paid exactly
the same amount. I don't think we'd lose anything if we abolished the hierarchy of law schools by equalizing dollars per
student and al:?signing profe-ssors to schools at random. Or if
we attacked the division of labor and the differentiation of capacities in law firms through training and rotation for everyone through all law jobs. We could and should go further:
we should attack the spirit of hierarchy as it manifests itself
in ideology and in all the details of expressive behavior discussed in the last chapter.
Legal Education and the

These judgments are not logical implications of some more
general social or political theory. I believe that legal hierarchy is an evil and unnecessary on the basis of my own and
my friends' lived experience within it. Both the ethical and
the factual judgments involved. are specific, grounded in late
night conversations, flashes of insight, rebellious moments,
and moments of failure, of self-betrayal and betrayal of others
(dear ones). All of this takes place in a context of interest,
even immersion, in theory. But I have no intention of proposing a New Analysis, based on a New Concept (reproduction
of hierarchy), that might replace tradi~ional thinking in terms,
say, of race, sex or class.
What I like about the word hierarchy is its vagueness,
which makes it useless for. purposes of "real," hard-edged
theory. To use it is to deny that class, or gender, or, say,
the relation of imperialist countries to Third World peoples, is
the fundamental categpry. It's even vaguer than that: it includes forms of meritocratic and gener~tional hierarchy within
organizations that could sustain themse,lves even without the
economic and cultural structures of class, race and sex. It's
the whole. banana we're against, not just one or another slice
of it.
Vagueness has its price. The notion of hierarchy encompasses lots of relationships that don't seem to me perverse,
and others that seem ambiguous. The notion itself doesn't tell
I ,
430
81
82
431
us which ~ierarchies are ok and which are awful. For example I thmk parents should have some authority over children, that students sometimes legitimately revere teachers and
that children should sometimes coercively care for their' aged
parents. Sometimes the only response to what one sees as
false consciousness is to take responsibility for "forcing people
to be free I" and it is self-delusive to pretend that one can do
this without an element of structured inequality creeping into
the relationship.
It's a relational concept. There are no absolute radical's,

just' people bei.ng radical in particular situations. Pedple don't
(at least in my experience) get to be like that 'by deduction
from general principles. There's no more reason to hope you
can convert them by logic than to fear they'll desert if the
theory isn't right. It's more like you wake up one morning
knowing that you aren't going to stand some abus~ or injustice
for another day, not knowing what will happen as a result,
not even sure you can justify whatever it is you're about to
do.
Hierarchy isn't even an inclusive term to describe the

evils of ?ur system. !here would be lots wrong (for example,
our relation to. the environment) even if we cleaned up our unequal structures. And there are other evils (sexual jealousy)
that may be ineradicable.
Sometimes things bubble to the surface in a group of

friends that sound more oppositional than you thought you
were, and they support rather than shun you. Or an opponent treats what you thought was a moderate statement as
advocacy of "socialism" or "radical feminism," and you find
yourself defiantly embracing the label instead of weasling out
of it. It's then one begins to want theo.ry--to want it as a
way to express one's new orientation, rather than to determine
its. content or serve it as an instrument.
What makes one a radical, in this view, is not that one is

against hierarchy since we all sometimes accept it, nor that
one is against "illegitimate" hierarchy, since we're all against
that. Nor is the radical the person with the theory that "goes
to the root." None of us has such a theory. The radical is
t~e person ~h~ wants to go further, right now, practically, to
dismantle ex1stmg str~ctures of hierarchy that look evil, and
wants to go further, nght now, practically, in confronting or
subverting the forces that keep them in place.
I
But if theory is expressive, rather than determinative of

the content of political struggle, what check is there against
error? Against passivity--the influenza of groups dispersed in
the chambers of the belly of the monster? Against murderous
totalitarian self-righteousness should we ever have the power
to do anyone real harm? If a check Iheans a rational mechan-
432
83
ism to confirm that one has not fallen into error, there is
none.
The only check against internal murderousness and
passivity is the criticism of friends. The only check against
the murderousness and passivity of friends is opposition to
them. The will to leave them if necessary.
It might seem to follow from this chastened view of the
role of theory that we can talk only about the small slice of
the world about which we can be truly knowledgeable. As we
generalize, we float free of our experiential ground, and our
theorizing loses its only possible validation.
84
433
existential-Marxist, anarcho-syndicalist, mod~rnist ,point of

view (recognizing that such a conjunction of labels doesn't teU
much).
It is also an attempt to reconstruct the .world- from the
particular perspective ?f th~ radical la~ student or law teacher
whose dilemma I descnbed m the prevwus chapters. Though I
present it in my own subjective, individ~al manner, this wp.y
of seeing things grows out of the collective end~a\{or of radicals in legal education across the country to fmd a mode of
resistance. I don't speak Jor this group, scattered 1n places
like Boston, Buffalo Camden, Madison, Miami, PalQ Alto, but I
do speak from its midst.
I
Yet we live in the great world as well as in the little. We

belong to groups that extend beyond particular places and we
speak a language--the conceptual, scientific, social theoretical,
aesthetic-modernist language of the world bourgeoisie--that
aspires to universality. If it is to perform its expressive
function, our theory must help us grasp this transcendent aspect of our experience, as well as our dispersal in corners and
cul de sacs.
*******
Legal hierarchy is a typical American phenomenon, r~ther
than something peculiar to law or even to the profes~wns.
Law firms and law schools strongly resemble, from the pomt of
view of hierarchy the other' institutions of ou_r society, including state bureaucracies, ser\fice corporatiOns, and in'dustry.
The relationship between legal edu~ation and law
practice is typical of relationships between tne J?arts ?f the
total hierarchical structure that have strong functwnal, mputoutput links. And, the ide?logy of legal h.ierarc~y is n? n:ore
than a specialized application of the general mentocrat1c Ideology of American society.
I
It's not a question of grasping an essence of our total

situation from which we could reason to particular proposals.
It's more the projection onto the widest screen of the ideas
and images that develop in the course of small-scale, backwater actions that we long to join into the great stream. What
follows is an attempt at that kind of general theory from an
434
85
~n accurat~
description of the total hierarchical structure

of which legal hierarchy is a part would have to take into account the following traits: First, the structure is diamona
~haped ~ather than dichotomous or pyramidal, with more people
m the middle than at the top or the bottom.
Second, at a given level, regionalism and the division of
labor, along with race and sex, create sharp cleavages in
tastes, capacities, and values.
'r:hird.' the whole is organized into corporate cells, each
of wh1ch mcludes people from different strata doing different
tasks; to some extent people identify with "their" corporate
cell rather than with their class position.
.
Fourth, each of the corporate cells roughly mirrors the

arrangement of all the others, and of the
hierarchy VIewed as a totality.
n~ternal hie~archical
Fifth, every one of these internally hierarchical elements

supports by analogy the legitimacy of each of the others while
at the same tiq1e contributing to the functioning of the' whole
through what it produces.
. Sixt:h, there are no "primary" or "fundamental" parts of
th1s structure, no part that is "material" as opposed to "super~tructural," and every part is constituted by a complex blendIng of the use or threat of force with ideological cooptation.
86
435
If we see the larger social world this way, we hav'e to

give up the notion that the total system of hierarchy has a
powerful structure that is the key both to understand}ng it
and to changing it. This means renouncing the characteristic
theoretical claims both of orthodox marxist and of left liberal
critics of hierarchy, since neither the organized working class
nor the state has a privileged position in the totality.
Orthodox marxist theorists argue that the proletariat is a

class with an unequivocal interest in revQlution and the particular organizational strengths and strategic position necessf!.ry
tb achieve it. But in the modern structure of hierarchy, the
proletariat has ceased to exist, at least in the 19th century
sense. Those at the very bottom of the diamond of hierarchy
are few in numbers, demor-alized, and functionally marginal to
the totality. Welfare mothers, illegal immigrants and -urban
squatters simply a Fe not a revolutionary class.
The force of an analysis based on the distinction between
productive workers and idle capitalists has faded .along with
the proletariat itself. The main problem is not how to expropriate the capitalist class, but how to overcome the unjust and
unnecessary inequality of power and reward among those who
work or want to work, and the patterns of behav,ior that
reenforce and legitimate that inequality generation after generation.
(I'm not saying that capitalists don't exist, or that
they don't oppress others, but just that this is only one in
436
87
the list of modes of oppression, and no longer, if it ever was,

the central one.)
In both liberal and marxist theory, the state has a crucial
role, in each case as a deus ex rna china. Sometimes, the notion is that the state represents the interests of the ruling
class of capitalists and represses, using brute force or clever
concessions or both, attempts by the masses to free themselves
of exploitation. Sometimes the problem is that the rules of the
game set up in the legal system are biased or discriminatory,
and the goal of political activism is to change them so that
they will be appropriately neutral among the warring groups of
civil society.
The problem with both these points of view is that the
state has blurred into the rest of society just as the proletariat has blurred into the middle class. Many distinct interests,
not remotely reducible to "capital", have appropriated hunks of
state power and pursue their goals through "public" institutions at the local, metropolitan, regional, state and federal
levels. The things these public institutions do are no longer
at all easy to distinguish from the things the other corporate
Gells in the hierarchy do. There are no distinguishable state
f~nctions that aren't sometimes performed by private organizations, and no private functions that aren't sometimes performed
by the state. There are dozens of functions that we don't
think of as distinctly one or the other, such as providing
transportation or communications.
88
437
This means that the state doesn't exis~ any f!10re 0an the
proletariat does. There a.re peo~le ~oosely orgamzed I? cel~s,
internally hierarchical, lmked m mput-outpu.t relationships
with other cells, and the cells that are conventi?nally ca~e~or
ized together as "the state" could just as plau~Ibly be divided
up and recombined in a dozen other .ways. It IS. not even tru~
that we can say the state's output IS "suppres~wn of ch~nge
or "adjusting the system to crises," since ~ornetirnes Jh~ different cells arbitrarily labelled "public" do th1s ?:r:t~ sometime they
do the opposite, fostering change an~ destabihzmg ,other parts
of the system. The nominally public cells sometimes regulate
other aspects of the system but are themselves regulated. as
well.
In this view, rather than a system po~efully struct~r.e9
by the relationship between workers and capitalists, . or b~ the
directive strategies of a state, there is a s~s~~rn Without any
overarching' logic--a congeries of roughly, Slmlla~ly patterned
elements which are just there, as opposed to flowmg out of an
integrating concept .or fact~al. relation. To say that the sys=
tern continues in existence 1s JUSt to sav that most of th~. cor
porate cells manage to keep going, on .~heir:O~ bu~ relyn~~ on
i;
arid competing with other cells, .sometimes Jommg m .coalitions
J consciously designed to protect mterests of the whole system,
sometimes. refusing to do so. As a matter of fact, the system
has survived and adapted, but that didn't have to happen,
and there's nothing to guarantee it will continue to happen
1
438
89
The phrase "reproduction of hierarchy" (as opposed, say,

to "perpetuation of oppression") is meant to convey this per:.
spective--the notion that the system is dis-integrated,
although not utterly chaotic. It is an organic metaphor--the
system is there because it is reborn piecemeal in each
generation, rather than being a conceptually graspable
something that outsiders (capital, the ruling class, the state)
impose and maintain. If you want to explain the status quo,
you have to go into the details of how people, new people in
each generation, learn to be little white middle class males,
teen -aged black welfare mothers living in public housing projects, and so forth. There's more to it than the state, or
one's relation to the means of production. There's all the
stuff that, in the case of lawyers, I tried to describe in the
chapters on the contributions of legal education to the hierarchies of tlie legal prof~ssion.
If a band of revolutionaries, or a band of moderate liberal
reformers, .were to seize some important hunk of the state, or
even every cell arguably a part thereof, they would be incapable, for all their apparent power, of changing most of what is
detestable about our system. The hateful stuff is embedded in
the hundreds of thousands of little behavior patterns and implicit training programs that constitute the totality. The liberal state is too weak and the totalitarian state too strong for
the task of transformation. Where what we long for is free
self-determination within every cell, the liberal state can only
regulate the powerful while the totalitarian state can only tell
us what to do and not to do.
90
439
The revolution that counts is the revolution of c~vil society, a revolution within each cell, from the shop flpor to the
nuclear family to the office to the classroom. Thoug.h revolu
tionary decrees or administra..tive regulations, would be helpful, they would also be dangerous. An offici~!, public, governmental revolution risks impotence unless Its au.,thors are
willing to take it very far indeed,. at which point they ri$k
degeneration into revolutipnary dictatorship.
But if we have to abandon the notion of the state as a
transformative agent, we can also let go the fear that the state
can somehG>w repress any attempt at. f~ndamental chan~e.
There is no process of secular "rationalization" that slowly Implants order so deepiy that f~eedo~ becomes unim.~ginpble.
The occasions of freedom run hke vems of ore through whqt
seem the most monolithic institutions; they exist in pockets apd
interstices that escape even a very careful eye. And all occa.. sions of freedom are fundamental: just as there is no t;:ore or
basic relation or logic of the system, so there is no single,
fragile heart of the opposition.
What has happened is a sim14ltaneous blurr~ng. of lines between classes and institutions that were once distinct (at l~ast
in theory) and a diffusion of social power through the hierarchy that has made it, paradoxically, at once more stable and
more vulnerable. The system runs op training for hier~rchy,
on. the threat and reality of physical violence against d1ssen-
1
.~
.I
4110
Critical Legal Studies ,
91
ters,, and on ever~c;me's sense that those above them will never
:per~t change, w Ile those ~elow them would take everything
If ~Iven half a chance. This sense is confirmed, falsely, by
mynad e~eryday events, from t~e firing ~f workers for trying
to orgamze umons to ghetto nots. It IS confirmed for law
students by the admissions process, competition for grades
relations with teachers and fellow students, and the placement
process. But it is only a "sense," a false sense.
Those at the top of the various hierarchies--dispersed as
they are in the cellular structure--have no better theory of
why they are in power and how to stay there than the left has
of how to get them out. If battle lines were to be drawn, no
one knows where they would fall. Where they fell in fact
would depend on millions of decisions by individuals and
groups animated by conflicting motives of loyalty and hatred of
the existing order, hope and fear about the future. But it is
quite possible that battle lines will never be drawn, that the
~truggle will remain diffuse, pervasive without being organIze~, and that might not be a bad thing. If there is no revolutio~ary class and the state is just an institution among many,
to se1ze power means to transform society pi~cemeal.
* * * * * * *
People differently situated in the structure of hierarchy
receive radically different shares of the social product and
441

exercise radically different degrees of social power: But their
lives differ just as profnundly on dimensions that have nothing
to do with the quantitative issue, How Much? Clas~, sex and
race', along with the more particular cultures of regions and
corporate organizations, g-enerate differences in tastes, capacities and values. The judgment that shares of power and reward are unequal and unjust is therefore a complex one. It
can't be based on a concept like exploitation, since there is no
"natural" value for anyone's labor and no one has an abstract
right to receive any particular thing or to live any 'particular
life'.
It has to be based on the belief that everyone has the
capaCity for the most valuable forms of experience, and on the
processual belief that people can and should collectively determine the conditions of collective life. These beliefs cannot be
grounded in reason, as reason is commonly understood, nor is
it possible to resolve their contradictions otnerwise than in
practice, but that is not to say that they are arbitrary. Because the existing system of hierarchy denies their validity
and .frustrates their realization, we should abolish it.
The left should not pretend that it has a soll;J.tion, especially a proposed institutional solution to the problem of how
substantive (not formal) equalitY of power and reward can
exist in a world where peopl~ are different from one another,
irreducibly and also valuably different. A left movement bent
442
93
on transformJ.ng the system of hierarchy would have to choose,

over and over again, what meaning to give to equality, both in
reward and in power. Because the system creates groups of
people with different tastes, values and capacities, this process of choi~e would involve distinguishing and then accepting
and rejecting the tastes, values and capacities of groups.
It may appear that this is less problematic with respect to
capacities than with respect to values. We all recognize that

one is more likely to learn to read and write easily, and to do
abstract forms of instrumental reasoning, if one has had a
~ddle or upper middle class education as --opposed to a lower
nuddle or working class education. It is not that hierarchical
position guarantees competence, or that a lower position prec~udes it. But it is clear that this system produces .enormous
~Ifferences in actual reading, writing and calculating capacities.
These differences count. One is worse off if one
doesn't have the capacities than if one does.
A!ld yet to designate literacy or calculating ability as
somethmg everyone should have, would still involve a choice
-~to risk the atrophy of other cultural capacities for expresSIOn and interaction that have failed in the past, for whatever
r~~son, to hold their own in competition with the highly cognitive style of the Western bourgeoisie. It is hard to imagine
a world in which this kind of .issue would not cause conflict,
and there are no answers that flow simply from the idea of
94
443
equality. The struggle against hierarchy has to be unde~sto~d

as a struggle for the recognition and then the resolution IJ}
practice of contradictions. of th~ kind, ~ather tha~ as .a
struggle to impose a solution denved analy"Qcally from a polltical philosophy.
With respect to cultural values, the ~ituation is simil~r.
All social classes generate practices and artifacts that we tl}mk
of as "their own. " These are sometimes adopted by other
groups; sometimes they ~eco~e univers~l values of 9-. c~lture
and transcend class. This J!light be said qf rock music m the
1960's, or of the novel form, or of the conception of honor of
the feudal aristocracy. But even where the culture of .a c~ass
remains very much its own, it is never ~ts own creation
Classical music is unimaginable without the eighteenth century
artisa,n class, or without lower middle class musicians. Hegel's
philosophy is unimaginable without his servants, ~odern American black culture without nineteenth century. white slave mpsters.
The left in power would h~ve ~? )udge the ~alues of social
classes however ambiguously Identified, and pick- and choose
among 'them, whether we liked it or not, a~ we do whenever
we choose to .act in the world. Values conflict and even w~en
they don't life is short. Anyone who. wields spcial power, Ipcluding an' lawyers and all law teachers, ,constantly in~l~en~e.s
the choices of others, and no amount of r.espect for diyersJty
444
Critical Legal Studies.
95
can exempt from responsibility for that influence. The situation would be no different in an ideal democracy--for citizens
to be equal they must be engaged with one another, and engagement implies the acceptance of influence.
To meet this responsibility, we have to come to grips with
questions like, "Is it permissible for lawyers, by offering easy
divorce, protection against wife beating, access to contr'aception, abortion, and joint child custody, to destabilize working
class family life, in the name of a conception of women's liberation whose origins are predominantly in middle and upper middle class culture?" I would answer "yes" to this question, for
this time and place, but insist that there is an element of class
violence involved, a choice by one group to impose its values
on another.
This is not to assert that white working class people
overwhelmingly or even by a majority oppose abortion or easy
divorce or favor wife beating, or that the "true consciousness"
of the white working class is sexist. None of this is true.
But in order to make choices of this kind honestly, it seems to
me one must recognize that in the main, the flow of energy in
the women's movement has been downward through the class
hierarchy. And that this is an accomplishment, the creation of
value, by the bourgeoisie, just as was true of the building of
the productive capacity of capitalism. The struggle against
hierarchy has to be a struggle within the movement itself to
I
96
445
Legal .Education and the
recognize and then resolve in practice issues of this kind

however painful they may be.
Our inability to derive a practical program by analysis

from a political philosophy renders the whole enterprise of S9cial transformation problematic, when looked at from the point
: of view of rationalist theories, like the belief in natural rights
or the version of Marxism that sees collective ownership of the
means of production as the purpose of revolution. But even
without a theory in the strong sense claimed by earlier radical
movements, even though we have to make it up as we go
along, it is something to know what one is against. At least
' in a limited sense, the negation of hierarc y generates an
affirmative value, even a universal value.
The power to create new forms of human association in
discontinuous constitutive moments and in slow evolutionary
practice, is as great a human power as that of creating mate. rial sustenance from nature or that of encoding meaning in artifacts. When that power is dispersed through a hierarchy of
roles, and every person is constrained, by fear of falling
lower and the illusory hope of happiness higher up, to give
themselves over to those roles, the power is still exercised.
It is exercised, but no one exercises it. Instead of the experience of creation, of freedom, there is the experience of
bondage, though the social totality is transformed in the process of that bondage.
446
97
What the left offers is liberation from the constraints of

hierarchy the process of bondage through the conscious
practice of group self-determination in every area of life.
There is no one who lacks an objective interest in this form of
liberation.
I
[12]
The Metaphysics of American Law
Gary Peller
TABLE OF CoNTENTS
PAGE
I.
REPRESENTATION, MEDIATION, AND

EVERYDAY POLITICS ..................................... 1159
A.
B.
C
II.
III.
The Social Construction of Knowledge ................. 1160

Literary Interpretation and Original Sources ........... 1171
Ideology and R,epresentation ........................... 1175
LEGAL THOUGHT AS REPRESENTATIONAL ACTIVITY ...... 1181

FROM THE TRANSCENDENTAL SUBJECT TO THE
TRANSCENDENTAL OBJECT ............................... 1191
The Liberty of Contract Era . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The Spatial Metaphors ............................
2. The Temporal Metaphors .. ........................
Legal Realism ........................................
1. Realism as Critique ...............................
2. Realism as Science ................................
1193
1194
1207
B.
1219
1226
1240
IV. THE METAPHYSICS OF PRESENCE IN LEGAL THOUGHT .... 1259
V. THE METAPHORS OF SOCIAL REIFICATION ............ 1274
CoNcLusioN .................................... 1289
A.
446
97
What the left offers is liberation from the constraints of

hierarchy, the process of bondage, through the conscious
practice of group self-determination, in every area of life.
There is no one who lacks an objective interest in this form of
liberation.
[12]
Gary Peller
TABLE OF CoNTENTS
PAGE
I.
REPRESENTATION, MEDIATION, AND

EVERYDAY POLITICS .... - ....... 1159
A.
B.
C
II.
Ill.
The Social Construction of Knowledge . . . . . . . . . . . . . . . . . 1160

Literary.Jnterpretation and Original Sources ........... 1171
Ideology and R,epresentation . .......................... 1175
LEGAL THOUGHT AS REPRESENTATIONAL ACTIVITY ..... 1181

TRANSCENDENTAL OBJECT ......................... 1191
A.
The Liberty of Contract Era. . . . . . . . . . . . . . . . . . . . . . . . . . .

I. The Spatial Metaphors ............................
2. The Temporal Metaphors ..........................
Legal Realism .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .
1. Realism as Critique ...............................
2. Realism as Science ................................
1193
1i94
1207
1219
1226
1240
IV. THE METAPHYSICS OF PRESENCE IN LEGAL THOUGHT .. 1259
V. THE METAPHORS OF SOCiAL REIFICATION ............ 1274
CONCLUSION ........................................... 1289
B.
1182

Gary Peller
* * * * * * * *
1985)
THE METAPHYSICS OF AMERICAN LAW
449
448
1181
* * * * * * * *
II
LEGAL THOUGHT AS REPRESENTATIONAL ACTIVITY
The insights of linguistic and literary theory can be applied to legal

practice by demonstrating the indeterminancy inhering in legal texts,
taking the term "texts" in its commonsense meaning. For example, one
might analyze judicial interpretation of the Constitution, statutes, precedent, contracts, or wills to show that no innocent reading of them is possible. Such applications debunk the claims that legal interpretation is
ruled by objective, determinate meaning residing in a written text.
Rather than pursue such a course. this Article seeks to explicate the
underlying representational constructs of legal ideology tl\rough an
examination of how dominant American legal thought has attempted to
49. The traces of contingency "exist" in time, in the history of institutionalizations of social
practices whose scars "point" to past struggle (the memory, for example. of the violent institutional
ization of the division of labor which exists as a trace that the mind/body principle of categorization
is not universal or natural). They exist also in space, at the margins of current practice, in the loose
ends that always escape the attempts at closure and point elsewhere, to difference and a lack of
necessity (the "other" degraded knowledges, such as "poetic" knowledge in relation to "rational"
knowledge). The exclusions, supplements. llll!fgins, and subjugated knowledges all point to the con
structed qualit) of practices which present themselves as natural or true.
CALIFORNIA LA.W. REVIEW
[Vol. 73:1151
distinguish legal from politit:al ,discourse. The pretension of legal practice to find determinate meaning in written texts is only one aspect of
legal ideology, and one that has largely been surpassed, at least in superficial respects, by the dominant versions of legal thought since the
1950's. 50 As we saw earlier, legal interpretation of written texts cannot
be disinterested. But a similar analysis ordinarily is not extended to a
discussion of the nature of "legal reasoning" as a distinct mode of discourse. Furthermore, such an analysis ordinarily does not cpnsider the
presuppositions. of the belief that disinterested interpretation is a possible
and a valuable enterprise in the first place.
I propose to arlalyze legal thought' liS itself an interpretation of the
"text" of social relations. As such, legal thouglit is a representational
discourse which purports to re-present social relations in a neutral manner. But like language generally, legal discourse can never escape its own
textuality. Legal discourse pr:ojects mediating constructs onto the social
events it considers. And like literary interpretatiorl legal thought establishes itself as a distifict discourse through assertions of closure and
determinacy which are based on metaphysical assumptions of a pure origin of meaning. Just as one approach to literary interpretation purports
to proceed on the basis of an authorial intent to ground interpretative
activity, one mode of leg~ discourse imagines that indivjdurus in society
are. authors of social relations and consequently treats contractual intent
as a ground for legal practice. Just~ one approach to literary interprel<\~ion looks to communicative context to, determine the meaning of a
text, another legal approach trc:;ats social contex~ as the primary source
for legal results. As with the analysis of language and communication,
the argument here is that legal discourse can present itself as neutral and
determinate-only to the extent that it denies its own metaphoric starting
points and instead pretends to reflect the positive content of social relations. Each mode of legal discourse, however, leaves traces of its own
artifactual character which point outside of the expressed contept of legal
analysis.
Legal discourse is a mode Qf representation in m.uch ~he same way
as language itself. Tpe terms of legal discourse, such as "contract,"
"damage," and "criminal intent," denote representational conventions
which purport to reflect some positive content, independent of the terms
themselves. The contractual relation between people, or the occurrence
of a loss, or the criminal's malign state of mind, are supposed to exist
"out there," as characteristics of reality, prior to and independent of the
way reality is represented in legal discourse.
50. See. e.g., H.M. HART & A. SACKS, THE LEGAL PROCESS (tent. ed. 1958); Dworkin\ The
Model of Rules, 35 U. CHI. L. REV. 14 (1967); Fuller, Positivism and Fidelity to Law-A Reply to
Professor Hart, 71 HARV. L. REV. 630 (1958).
450
1985]
1183
For instance, the notion of a "loss" within the Learned Hand negligence formula has meaning in legal discourse because it "goes without
saying" that some consequences of social interactions are not losses. 51
For the Hand formula to be determinate and apolitical, the distinction
between "loss" and "no loss" must exist "out there" in the world prior to
and independent of the judicial application of the negligence calculus.
Otherwise the negligence determination will end up in hopeless circ~lar
ity-the determination of whether something is a legally significant loss
would always depend on whether it resulted from negligence, which
could not be determined until one knew whether it was a legally significant loss. The negligence calculus cannot itself determine what constitutes a cost withoutJlll infinite regress of evaluating the costs and benefits
of counting particular consequences as costs and benefits. 52
By treating the differentiation of "loss" and "no loss" as if it were
ruled by some positive reality existing independent of differentiation in
legal discourse, the Hand negligence calculus (like all assertions of economic "efficiency") effaces its own construction of what it purports simply to represent in a neutral and determinate manner. By suppressing its
own reliance on contingent ways of categorizing the social field, it
presents itself as a legal rather than political inquiry.
This process by which "legal reasoning" suppresses the metaphoric
character of legal discourse can also be illustrated with an example from
jurisprudential theory. Henry Hart and Albert Sacks argue in their
Legal Process materials53 that the proper way to understand law is to
separate the substantive content of social arrangements from the procedures for settling disputes about the arrangements. They contend that
the processes for resolving dispute are separate from and "more fundamental" than disagreement about the content of social arrangements
"since they are at once the source of the substantive arrangements and
the indispensable means of making them work effectively." 54
The Hart and Sacks attempt to fix the understanding of the legal
system around proceduralism and notions of institutional competence is
encapsulated in the "principle of institutional settlement."
Implicit in every such system of procedures is the central ideal of lawan idea which can be described as the principle of institutional settlement . . , . The alternative to disintegrating resort to violence is the
United States v. Carroll Towing Co., 159 F.2d 169 (2d'Cir. 1947).
The issue whether emotional distress should be compensable is merely the tip of the iceberg
with respect to the contingency of any particular convention as to the meaning of loss. This
indeterminancy of the categories of costs and benefits is analogous to the aspect of the debate about
law and economics literature focusing on the content of the category of "externality." See Kennedy,
Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387 (1981).
53. H.M. HART & A. SACKS, supra note 50.
54. /d. at 5 (emphasis added).
1184
CALIFORNIALAW REVIEW
451
[Vol. 73:115f
establishment of regularized and peaceable methods of decision. The

principle of institutional settlement expresses the jy.dgment that decisions
which are tl}e duly arrived at result of duly esta;blished procedures of this
kind ought to be accepted as binding upon the whole society unless and
until they are duly changed.
. . . When the principle of institutional settlement is plainly applicable, we say that the law "is" thus and so, and brush aside further ,discussion of what it "ought" to be. ,Yet the "is" is not really an "is" but a
special kind of "ought"-a statement that, for the reasons just reviewed,
a decision which is the duly arrived at result of a duly established prdcedure for making decisions of that kind "ought" to 'be accepted as binding
upon the whole society unij:ss' and until it has been duly changed. 55
The "principle of institutional settlement" provides the base for the
rest of the Legal Process materials, which largely develop a rationale for
the current institutional framework of American government through a
categorization of kinds of disputes and types of institutions whose procedures are rationally related to resolving t~ particulru:. kinds of disputes.
As such, the "principle of institutional settlement'' occupies a central,
phlce in the project. Hart and, Sacks have utmost confidence that the
principle is not controveJ.1iial; it is either logically self-evident or a matter
of universal consensus that peaceful dispute resolution is prefera9le to
viqlence. 56 And, stated as ~n alternative to violc:nce, peaceful institutiQJlal settlement does s~em noncontroversial. Accorqingly, the,groupd
for the Hart and Sacks project appears as a rational starting p9int for the
analysis of the "legal process," regardless of any disagreement we might
have with their particular working out of the system.
But this app~rent rationality rests on rhetoric. By decpnstructing
the statement "the alternative to disintegrating violence is the establishment of regularized and peaceable methods of decision," one can unpack
tqe metaphoric associations upon which the formulation rests. Und~rly
ing this statement are two dichotomies. One is the peace/violence
dichotomy and the other the order/disorder dichotomy (contained
respectively in the no~ions of "regularized" methods of decision and "disintegrating" resort to violence). The formulation of the principle of institutional settlement not only asks the reader to prefer peace to violence,
the aspect of the principle whicl} establishes its appeal, but further asks
tHe reader to associate violence with dis01;der and neace with order. The
underlying metaphori~ structure groups are law, order, institutionaliza-
51.
52.
55. /d. at 4-5.

56. /d. at 123:
Are the positions . . . taken thus far in these materials conventional and generally
accepted? Might a representative chairman of the Republican tjational Committee, for
example, be expected to agree with them? A chairman of the Democratic National Committee? A representative union leader? . , . A representative member of the Soviet Russian Politburo? A younger professor of anthropology in an American university . . . 1
452
1985]
453
1185
tion, ~nd peace on one side and nonlaw, disorder, noninstitutionalization

and viOlence on the other. These metaphoric connections between the
dichotomies silently exclude the possibility that disorder may be peaceful
and that order can be violent. In the process, the Hart and Sacks rhetoric implicitly delegitimates insubordination as it exalts subordination.
Subordjnation is exalted as the concept of order is ass~ciated with
peace. Order refers to things or people taking their proper places in a
series. As such, it implies the process of subordination, where some are
above or before and others are below or after in the series. But the active
process of subordination implies the possibility of violence to enforce the
instituted order. Accordingly, rationality demands no necessary connection,. sue~ ~s that _dr~wn by Hart and Sacks, between order and peace.
The Imphcit association of peace with regularity is metaphoric.
Moreover, the association of violence with disintegration rhetorically places "order" and "integration" prior to "disorder" and "disintegration." Order thus represents some original peace and violence, a fall
from the presence of peace and unity. This trace of the Hart and Sacks
argu~ent imp~icitly institutes a benign perspective on the status quo. It
associates ordmary, "regular~ social relations with peace and associates
attempts to abolish or change the order with Violence, which "disintegrates" the prior integration. The rhetorical structure of argument
excludes the possibility that the 'Ordinary, regular, '!integrated" order of
things may institutionalize violence. For example, the regular order of
thi_ngs_ inst~tutionalizes violence against women as it "integrates" the
object~~ati~n of women in consciousness through work assignments,
advertismg Imagery, and general codes of gender relations which are
expressed in elevators, street corn'eci, workplaces, and bedrooms. With
gender relations, the "disintegrating" move would be a move from order
toward peace, and against violence, even if the move necessitates the
"violence" of destroying the existing order.
The controversial character of the association of peace with order
and violence with insubordination became obvious soon after the Legal
Process materials were written, in the context of the Vietnam War draft
resistance. The message of the principle .of institutional settlement was
t~at draft resistance was illegitimate. "Decisions wh,ich are the duly
aimed at result of duly established procedures of this kind ought to be
accepted as binding upon the whole society unless and until they are duly
change~ . . . ." Accordingly, a draftee could write his Congressperson,
but u~ttl the war and the draft were "duly" terminated, he was to participate smce he was bound. In that context, the metaphor established by
Hart and Sacks paradoxically associated participation in war with peace
1186
CALIFORNIA LAW REVIEW
[Vol. 73:1151
and avoidance of war with violence. 57

To be sure, the association of violence with disOrder does reflect
some part of our experience. We have sotne experiences in which lack of
formal ordedeads to fistfights, shouts, and disappointed frienCis and lovers. But the association also excludes other possible ways to represent
social life, the knowledge people have ofbrder as violent domination and
of insubordination as legitimate. Our knowledge of the legitimacy <5f
insubordination extends from the general collective memory of French
resistance fighters' insubordination to the Nazi order to familiarity with
more particular and local' resistance to the instituteti order in our workplaces. For example, a knowledge of the legitimacy of the resistance to
authority exists in the-crevices of the instituted ltierarchy of many restaurants where particular servers and kitchen workers resist "the order"
through ridicule and belittlement of the manager, or through hidden evasions of "proper" work procedures. In short, it is not that the association
of order with peace and disorder with violence is never appropriate.
Rather, it is.a contingent and local question, depending on local circumstances and political choices of interpretation. The associations are not
amenable to rational argumentation at the grand level of the relationship
'between the abstract concepts of Peace, Order, Violence, and
Insubordination. 58
The Hart and Sacks metaplrors are posed as real and noncontroversial. But when they are articulated in the' context of the workplace, they
'become the discourse of Management-Speak, ~he orderly authority posed
against "disintegration." The discourse represents the established
order-the division of labor and the distribution of the social productas "peace" and "integration," while it represents worker insubordination,
such as "wildcat" job actions, as "disintegrating" violence. 59 The
cogency of the metaphor depends on the exclusion of the other knowledges of the workplace and on the political choice of one metaphoric
interpretation over another. When the Hart and Sacks argument is contextualized to the workplace, it sides with the instituted division of labor
and work hierarchies.
The principle of institutional settlement is presented in the Hart and
Sacks project as a rational starting point for an analysis of legitimate
57. I do not know the explicit positions taken by either author on draft resistance. I am here
simply trying to provide the metaphysical infrastructure for the argument presented at the time that
the draftee had a duty to obey the law, or at least a duty to serve time in prison, to in.dicate the
ultimate legitimacy of democratic system as a whole.
58. See M. FouCAULT, Truth and Power, supra note 6.
59. Indeed, this is the sense of the application of process theory to labor relations with the
purported aim of achieving "industrial peace." See Klare, Judicial Deradicalization of the Wagner
Act and the Origins of Modern Legal Consciousness. J9J7-/94J, 62 MINN. L. REV. 265 (1978); Stone,
The Post-.War Paradigm in American Labor Law, 90 YALE L.J. 1509 (1981).
454
1985]
455
1187
exercises of official power. But this veneer of rationalism obscures the

exclusion of other know ledges about the world implicit in the metaphors
that get the Hart and Sacks project going. The metaphors Hart and
Sacks implicitly accept exclude the know ledges of waitresses, dishwashers, busboys, and customers that along with the "peace" of the regularity
that freezes and stereotypes their relations is a violence that represses or
marginalizes their urges to break through the order. The "rational"
starting point of the analysis is actually a contingent and partial description chosen by Hart and Sacks.
At this point, the Hart and Sacks argument appears to be at war
with itself. If the association of order and peace reflects a chosen rather
than a universal ground for analysis, it is a choice that is entitled to no
credence according to the principle of institutional settlement. That
principle demands that such choices be made institutionally. That is,
processes for resolving disputes cannot be "more fundamental" than "the
source" of the content of social arrangements since, as posed by Hart and
Sacks, they already contain visions as to the appropriate content of "substantive arrangements." The inside, "the principle of institutional settlement," is invaded by the outside, "the content of substantive
arrangements." Process can only be kept separate from substance by the
reification of the Hart and Sacks metaphors, the assumption of positive
content to the associations of peace/order and violence/disorder and to
the range of each term. Accordingly, since Hart and Sacks propose the
institutionalization of a choice that has not passed the test of institutional
settlement, their argument is an instance of "disintegrating violence"
within the terms of their own discourse. And it's not that the invocation
of order in the formulation of the principle of institutional settlement is
some trivial rhetorical slip. The concept of orderliness, of things in their
proper hierarchical place, is the regulative principle behind the whole
scheme of institutional competence theory, the assignment of the proper
kind of question to the proper kind of institution.
In the Hart and Sacks text, an "absent" representational system
through which peace, violence, order, and disorder are differentiated and
associated serves to provide the positive, "present" facts supposed to
exist prior to the legal representational system. These posited "present"
facts are taken in turn to provide the ground for the representational
practice.
The legal representation of "rape" is an additional example of this
process of reification. In legal discourse rape represents coercive sexuality-sexual intercourse that is not consensual. Rape law constitutes the
realm in which the state will protect the autonomous, private choice not
to engage in sexual intercourse.
Sexual consent, like authorial intent, is presented as a positive entity
1188
[Vol. 73:1151
that preexists the later legal determin~tion of whether consent existed in

a particular instance. The determination of consent, however, faces the
same obstacles as the determination .of authorial intent. Consent can be
e;pressed only in external signals that depend for their meaning on the
preexisting social system of communication. Accordingly, an individual
woman's communication of consent or no consent must be articulated
ihrough objective manifestations which are already inscribed with meaning in the public representational practice. "Consent" can only be determined from the "outside" through particular objective manifestations
whiph are taken to te~present a woman~s self-present consciousness at a
prior time.
But the interpretation of a woman's objective manifestations is
mediated by the interpreter's representational calculus which assigns a
particular meaning to a woman's objective acts. Whether a particular
woman consented to an act of intercourse can be determined only
through the interpret.er's .reconstruction of what the woman must have
"meant" given her objective manifestations. For example, if she said,
"No, I do not want to hav~ intercourse," the words might be taken as a
statement of nonconsent. The interpreter's own constructs, however,
neces~arily filter what p~rticular objective manifestations mean. To cite
one egregious example, if the interpreter holds the once-prevalent belief
that women always say "no," even if they mean "yes," the signifying
effect of the words will be different than if some other int~rpretative construct is held: 60
Thus, the consent which is supposed to determine whether rape
occurred is not the source for the legal interpretation of the sexual event,
but rather the effect of the legal representation. Consent is a construct of
interpretative activity, rather than ~ground for the activity.
The possibility of 9ux;ess, of saying "no" while meaning "yes", or
vice versa, reflects the inherent indeterminacy of language, triggering the
move .to contextualization. If the word "yes" was uttered while a man,.
held a gun to a woman's head, tpe context would suggest to the interpreter that the wpman did not mean "yes" and therefore did not consent.
Meaning becom~s relative to context, so that the word "yes" has a meaning in relation to the gun to the head that is different from "yes" in relation to, say, wine and flowers. The "gun to tlie head" signifies coercion
60. "Obviously a man should not be convicted of this very grave felony where the woman
merely put up a little resistance for the sake of 'appearance," so to speak, taking care not to resist too
much. . . . The absence of consent is necessary for this crime. And even where the resistance is
genuine and vigorous in the beginning, if the physical contact arouses the passion of the woman to
the extent that she willingly yields herself to the sexual act before penetration . . . it is not rape." R.
PERKINS, CRIMINAL LAW 16162 (2d ed. 1969) (citing Adams v. Commonwealth, 219 Ky.'711, 294
S.W. lSI (1924)); see also Reid v. State, 290 P.2d 775 (Okla. Crim. App. 1955); Wade v. State, 37
Ga. App. 121, 138 S.E. 921 (1927).
l
~
l
l
'
456
1985)
1189
rather than consent in the interpreter's representational system. "Wine

and flowers" signifies normal courtship.
Contextualization, however, still requires the screening of the event
through the interpreter's own representational system. By analogy, the
contexts in which the word "yes" was uttered but not "meant" could be
multiplied to include all situations similar to threats of death or severe
injury. Depending on the interpreter's representational system the'analogies with the gun to the head would stop at some point. An opjective
schemata of contexts would be reached whereby some expressions of
"yes" would be taken to really mean yes (the wine and flowers context)
and others as meaning no. But this calculus is not determined by any
positive content of the concepts of consent arid co~rcion. It is determined by interpretative constructs which mediate the attributibn of
meaning. For example, the point where the analogy to fear of severe
injury stops in American law is at the limits of physical'threats. Statutes
that limit the finding of coercion to sitbatfbns where a woman physically
resisted a man's sexual advances or where a women was threatened with
bodily harm seem .coherent because of the interpretative construct of the<
mind/body dichotomy. To the extent this dichotomy is accepted, physical pressure appears qualitatively different from economic, psychological
or cultural pressure. 61
Stopping the play of analogy at any particular context seems an
arbitrary freezing of the difference between consent and cOercion. Any
grouping of contexts amounts to a formalization into general and objective rules of a determination supposedly based on individual, particular
circumstance. The reliance on context is just as formalistic as reliance on
words such as "yes" or "no." The differentiation of contexts also
depends on a priori constructs, such as the mind/body dichotomy or the
conception of sexual violation as limited to physical penetration. The
question purportedly resolved By the interpreter is "did this woman consent," but the only way to answer the question is by reference to a general representational system through which some contexts are viewed as
consensual and others as coercive. This representational system is external to the individual event and yet it -purports to re-preS'ent it.
Thus, the legal interpreter constructs the context which is supposed
to provide the ground for representing the event. The specification of
context, like the attribution of intent, contains traces of its own artificiality which point away from the "positive" event ,to the socially constructed representational conventions on which the determination of
meaning depends.
Finally, any attempt to ground the representationa.l structure for the
61.
See, e.g., MODEL PENAL CODE 213.1 (Proposed Official Draft 1962).
457
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differentiation of consent and coercion by reference to what the relevant

woman believed promises total circularity. To the extent that she hasinternalized the reigning public representational scheme as to .what constitutes consent and coercion, even her expressed consent is already.
invaded by social power. The realm of a woman's manjfested consent is
inseparable from the social meanings as to consent and c<>e<rcion. One
cannot ground the representational system by referen~ to. her pres~nt
understanding of the event, because any such understandmg 1s never stmply present; it always contains traces pointing toward the social language
generally. 62 To the ext~nt that the public r~presentational system .takes
ecQnomic dependence or cultural degradation as, a context con.s~stent
with free sexual consent, a woman's actual agrc;:em~nt at the t1me of
intercourse exists only within the context of that rc;presentational system
@G therefore cannot provide the origin for the repr~entational system
i~lf. To the extent that she has internalized the public representa!ional
system, she also may conceive of her sexual relation~ as consensual simply because there was no physical cqerciop. Sitpilarly: if the rel~vant
woman has internalized the once prevalent soctal behef that bemg a
"wife" entails sex with' the husband as a "wifely duty," then her actual
consent to sexual intercourse. wjth her husbarid cannot be taken merely
as her consent; it is also the expression of the social power reflected in the
language of social roles.
From this perspective, the representational system cannot be said to
re-present some preexisting consent since the social conve~tions provide
the referents through which the "private" actor conceptuahzes the event
in her own mind. There is no way to ground a finding of consent in a
private or present.moment existing Independent of the public system of
differentiation. Every relation between. a "husband" and a "wife" is
social, rather than private, to the extent that it is influenced by the public
meanings of "wife" and"husband." Any consent tQ a sexual encounter
proceeds in the context of the public representational syst~m that defines
consent and coercion.
Thus, "rape" is an artifact of the legal representational process
whereby some sexual relations are called coercive and others are called
consensual. The contingency of the representational process is implicitly
denied by the apparent rationality in the distinctions drawn between contexts. But ultimately these distinctions are metaphysical; they rest on a
particular metaphoric way of dividing up the world. The sphe.re of
duress conceivitbly could be continued indefinitely by, for example, mterpreting the general context of gender relations in American society as
62. This is analogous to the manner in which an author's }ntent is never "original," but always
socially created to the extent that the author conceives of the work in terms of the socially created
conventions for perceiving the world. See supra text accompanying notes 28-30.
458
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coercive given the male domination of women in economic wealth, political power, cultural imagery, etc. But through the prism of the mind/
body dichotomy, physical attacks on a woman's body are represented as
abnormal and exceptional instances of bad, coercive sex, while other sexual acts are implicitly represented as normal and noncoercive.
One ideological message projected by the legal representation of
"rape" is that consensual sexuality is consistent with male domination in
society. The mind/body dichotomy is the metaphysical assumption
which legitimates the run of "ordinary" sexual relations in society. It is
the background convention which establishes the meaning of sexual consent and coercion, since there seems to be no necessary basis for distinguishing the contexts from within the concepts of consent and coercion.
The concepts themselves suggest a never ending relational process
whereby
consent appears as whatever is not defined as coercion and vice
63
versa. The mind/body dichotomy 'serves to freeze this relational play.
But there is no rational reason not to recognize a much greater degree of
coercion in sexual relations than currently is identified; sexual relations
in the typical American marriage also may be coercive. To the extent
that the legal representation is taken as positive rather than socially contingent, this other coercion appears in our conceptual space as consent
and its violence as the norm. The knowledge of particular women that
they are raped in "normal" sexual relations is marginalized as irrational,
ideological,
or emotional, since it depends on a different representational
calculus. 64
III
TRANSCENDENTAL OBJECT
The discussions of the Hart and Sacks Legal Process text and conceptions of rape suggest the dependence of legal thought on metaphors
that are effaced as the attempt is made to ground legal analysis in some
origin or starting point, whether it be the sexual consent of a woman or
the association of peace with order. In this section, I will approach
63.
459
See supra text accompanying notes 10-14.
64. I do not mean to trivialjze in any way the experience of women who are raped (in the
current representational terms) by suggesting that that experience is somehow essentially like the
experience of ordinary sexual relations. I mean to suggest that so-called normal sexual relations may
share attributes with "rape" that are obscured when rape is presented as a naturally distinct category
associated with deviation.
For further discussions of the ideological construction of the category of coercive sexuality, see
MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS
635, 656 n.46 ( 1983); Olsen, Statutory Rape: A Feminist Critique af Rights Analysis, 63 TEx. L. REv.
387, 428 ( 1984); Comment, Shifting the Communication Burden: A Meaningful Consent Standard in
Rape, 6 HARV. WOMEN's L.J. (43, 146-49 (1983).
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American legal thought more systematically in an attempt to describe

the conceptual framework within which the liberty of contract and legal
realist approaches to legal reasoning operated.
My argument is that each historical approach to legal though! rests
on interpretative constructs65 which mediate the legal represe?tatt~n of
social events. These interpretative constructs, such as the pubhc/p~v~te
dichotomy in the liberty of contract era, are metaphors for orga~zmg
what is seen as alike or different in the social world. The representational
constructs can be seen as spatial metaphors in the sense that they constitute, at any particular moment, the available ~tegories for dividing u~
the social world. That is, the metaphors organize the conceptual temtbry of the representational practice or discourse wit~i~ 'which particul.ar
analogies seem persuasive or unpersuasive. In addition to the spa~Ial
metaphors, each legal approach institutes a temporal ~etaphor ~hich
orders the spatial terms into a particular sequence. For I~stance, m the
liberty of contract era the public/private dichotomy constituted a metaphor for organizing perception of the soci.al ~orld in a sp~tial sense. But
the liberty of contract era discourse also mstttuted a particular tem~ral
relation~hip between the terms of the dichotomy, so that the pnvate
realm was seen as prior to and constitutive .of the public. 66
' In additio~, each of the representational oppositions echo other
oppositions within each legal discourse because each is a mediation of a
deeper in!erpretative con~truct, the subject/object dichoton;ty. 67 My thesis is that the transformation of legal discourse from the hberty of contract era to the legal realist approaches occurred within the confin~ of
thi~ representational term, which ..has not itself b~en. tra?sformed.
Rather, the liberty of contract apprqach took the Subjecttve stde of the
dichotomy as primary, and thus instituted withi'n the discourse the m~ta
physical notion of a transcendental subject, the individual. ,Legal reahsm
in large part merely changed the temporal sequence of the terms of the
65. I am borrowing the term "interpretative constructs" from Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591 (1981). I use it to refer to the background metaphoric structures. within which reasoning appears constrained and necessary, as
discussed in Part I.
66. I do not mean to suggest that the space/time manifold exhausts the dimensions in which
representational acti\'ity is constructed, nor that this manif~ld is itself a universal stru~ture of interpretation which stands outside particular representational practices and there~y provi~e:' a ground
for analysis. I have focused on the spatial and temporal aspects of represe~tauonai actiVIty beca~se
they seem to me to be important dimensions of the representational practices considered here With
respect to the issue of the contingency of social relations.
.
.
67. The description of the subject/object metaphor as a "deeper" Interpretative cons~ruct
unfortunately tends to suggest that dichotomy as the source, origin, or r?<'t ~f the repr~ntati.onal
practice. As indicated above, see supra text accompanyin.g notes 43-49, _I Imagme the relationship as
one of imbeddedness rather than priority; the subject/object metaphor IS not therefore the source of
the representational practices, but rather a common metaphor found in various regions of discourse
which have no origin in any particular place.
'i
460
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Critical
1193
dichotomy by projecting objectivity as transcendental. For instance, a

large part of the realist critique of the liberty of contract era consisted of
showing that public rules of law were prior to and constitutive of what
had been formerly represented as "private" market relations. This is not
to say that the transformation in discourse was not impol'tant, or that it
did not signify new possibilities for imagining the contours of a legal
regime. For instance, the rise of administrative agencies as a legitimate
form of regulation seems intimately connected to the transformation in
legal discourse. My argument, however, focuses on the continuity of the
institutionalization of the subject/object dichotomy in legal representational thought. The institutionalization of the subject/object dichotomy,
I contend, symbolizes the social world as existing separate from its social
construction by individuals and groups. Accordingly, it tends to naturalize the status quo, even as it is utilized in reformist practice, such as legal
realism.
A.
The Liberty of Contract Era
[T]he law, in its high and just regard for the contractual rights of
parties, will not permit any contracts to be binding but such as are made
by persons who are entirely free to act in making or 'refusing such
contracts. 68
. . . We do not mean to say, therefore, that a State may not properly
exert its police power to prevent coercion on the part of employers
towar~ employe[e]s, or vice versa. But, in this case, the Kansas court of
last resort has held that Coppage . . . is a criminal . . . under this statute simply and merely because, while acting as the representative of the
Railroad Company and dealing with Hedges, an employe[e] at. will and a
man of full age and understanding, subject to no restraint or disability,
Coppage insisted that Hedges should freely choose whether he would
leave the employ of the Company pr would agree to refrain from association with the union while so employed. . . . [T]he State of Kansas
intends by this legislation to punish conduct such as that of Coppage,
although entirely devoid of any element of coercion, compulsion, duress,
or undue influence, just as certainly as it intends to punish coercion and
the like. . . . 69
These two passages are from the so-called formalist era of American
legal thought. This era is associat.ed with the well-known decisions in
Coppage v. Kansas, where the Supreme Court struck down a Kansas statute forbidding employers to make nonunion affiliation a condition of
employment, and in Lochner v. New York, 70 where the Court struck
68.
(1896).
69.
70.
Hahford Fire Ins. Co. v. Kirkpatrick, DUM & Co. Ill Ala. 456, 465, 20 So. 651, 654
Coppage v. Kansas, 236 U.S. I, 15 (1915).
Lochner v. New York, 198 U.S. 45 (1905).
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down a New York statute limiting the workday of bakers to ten hours.
The era is commonly condemned today on the ground that the Justices
imposed their personal belief in laissez-faire capitalism on their interpretation of the constitution, or that they focused on the forms rather than
the reality of social relations. 71 Either way, the Court was acting "politically" rather than "legally."
Such criticism implies that the Court in Lochner, Coppage, and the
other liberty of contract cases was either result-oriented or simply ignorant in comparison to modem theorists. When critics of the decisions
say that tl1e Court ove~tepped its institutional bounds or failed to conform the law to reality, they imply that there is some method of social
aecisionmaking that would be "legal" as opposed to "political," or "real"
as opposed to ".conceptual." These critics thus adhere -to the fantasy at
the heart of the liberty of contract cases themselves.
The liberty of contract cases were every bit as "legal" as law gets.
While the opinions rested on metaphysical assumptions, within the representational metaphors of the legal discourse the decisions were not subjective or political choices to favor, say, laissez faire ideology over welfare
state ideology, or owners over workers. Rather, the legal representational language gave to the opinions a coherence and a sense of rational
necessity similt:tr to the coherence and rationality that our responses to
the question about the difference between chess and arm-wrestling seem
to embody once the mind/body metaphor is reified in our representational practice. The dismissal of the period with the assertion that it
manifested a "laissez faire" ideology or a "formalist" method ignores the
judges' apparently genuine belief that they were neither ideological nor
formalist. I propose to explain the process by which people can have an
"itleology" and yet believe their discourse is nonideological. My method
will l5e to follow the metaphoric root system of the liberty of contract
discourse in an attempt to discover what representational terms must be
reified for the decisions to feel rational, legal, and necessary. 72
1.
The Spatial Metaphors
There are difficulties in such an explication. From a contemporary

71. See, e.g., J. ELY, DEMOCRACY AND DISTRUST (1980); G. GILMORE, THE DEATH Of
CONTRACT (1974); K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 3840
(1960); L. TRIBE, AMERICAN CONSTITUTIONAL LAw (1978); Pound, Mechanical Jurisprudence, 8
CoLUM. L. REv. 605 (1908). My treatment of the period is greatly influenced by the work of
Duncan Kennedy. See Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L.
REV. 1685 (1976) [hereinafter cited as Kennedy, Form and Substance]; Kennedy, Toward a
Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America.
/850/940, 3 RESEARCH L. & SOC. 3 (1980).
72. In pursuing this approach, I am following the suggestions made supra at text accompany
ing notes 727, 40-49.
462
Critical
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perspective, it simply seems incredible that people could genuinely

believe that an employee was under "no restraint" to accept an unfavorable employment contract and that he was, in the terms of one court,
"entirely free to act in making or refusing such contracts."73 We tend to
see the late nineteenth century employee in the context of a -social structure in which labor and capital generally enjoyed different bargaining
power. We see an employee's "freedom" to refuse a proferred labor contract as restrained by the need to work to support a family, by his limited
access to capital, by the structure of the labor market in the industry and
the region, by his socioeconomic position, and so on. But the liberty of
contract theorists operated within a conceptual space in which individual
intent was seen as the source and origin of social context. The conclusion
that a laborer was "entirely free" within the context of the market
seemed "rational" given that way of organizing perception and
communication.
In current understanding such a structure of interpretation continues to be reflected in the common notion that "normal" sexual relations
result from purely private choices. 74 The dominant understanding of
normal or noncoercive sexual relations is that women are entirely free to
consent or not consent to sexual relations, regardless of the general distribution of power in gender relations. 75 The connection between currently
dominant notions of sexual consent and liberty of contract notions of
contractual consent is captured by the term "private." In each instance,
the,social relations are imagined to take place outside the context of public power, in a private realm in which the individual is self-present. 76 In
this private realm, the individual is at liberty to pursue private ends, no
matter how arbitrary, so long as others are not harmed. This conjunction of freedom and privacy is contrasted with the "public" sphere,
which connotes the absence of self-presence, where we are not free to
simply "be ourselves," but must conform to external demands. The public realm is thus to a certain extent "coercive," regulated by "others.'m
73.
(1896).
Hartford Fire Ins. Co. v. Kirkpatrick, Dunn & Co., Ill Ala. 456, 465, 20 So. 651, 654
74. One way to understand the assertion in Coppage that each party to an employment contract was free to accept or refuse a proferred contract is to substitute for "laborers" the terrn
"women," and substitute tor market context the general context of gender relations today, including
economic power, cultural imagery, and the language of social roles.
75. See supra text accompanying notes 61-64.
76. That is, in this metaphoric context the individual subject is seen to be self-present to the
extent the individual is a source of social meaning, rather than a differentiated effect of social practices. Privacy in these terms has the same connotations.as does the notion of presence in our general
discussion of the metaphysics of representational practice. The individual as self-present does not
depend on a negative social differentiation, but instead is free-standing and positive, separate from
the social practices. See supra text accompanying notes 61-64 ..
77. This image of the public realm as coercive and other-oriented, usually although not always
associated with formal state power, is common to classical liberal representations of political struc-
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The public/private metaphor for representing-the social world was

one of the primary representation~ constructs for the liberty of CQntract
jurisprudence. The representational practice of the liberty of contract
era .assumed that the social worlq was divisible into "public" and "private" spheres of action, implicitly corresponding to the "presence" or
"absence" of the individual's free will. 78 When conduct was "purely"
private, an expression of the autonomous free will of the affected parties,
there was no basis for the imposition of legislative power. Legislation
was limited to "public" concerns: In the words of a state court,
.., When the subject of a contract is purely and exclusively private,
unaffected by any public interest or duty to person, to society, or government, and the parties are capable of contracting, there is no condition
existing upon .which the legislature can interfere for the purpose of
prohibiting the contract or controlling the terms thereof. 79
It was this "purely and exclusively private" space that the Court in
Coppage imagined itself protecting; Hedges was "a man of full age and
understanding, subject to no restraint or disability, " 80 and therefore
lures. See, e.g., ]. HOBBES, LEVIATHAN (Oxford ed. 1957); ], LocKE, Two TREATISES OF
GOVERNMENT (Laslett ed. 1960).
78. SeeM. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 262 (1977);
Kennedy, Form and Substance1 supra note 71, at 1728-30, 1754. The public realm represented the
absence of the individual free will, where the individuiu had to conform to the regulations of others.
In the private realm, the individual's will was present, so that private behavior could be seen directly
to reflect the will of visible l'ctors. As the argument will be developed, the link between the association of the private realm wit)) presence and the public realm ~ith absen~ w~ the institution of the
present, undifferentiated side of the dichotomy as the source or origin for the other side. In the
temporal metaphor, the ptivate side was seen ,to be the original terrn and the public a derivative
supplement to the private. See infra text accompanying 'hotes 122-40.
The centrality of the public/private dichotomy to late nineteenth century legal thought is discussed in Horwitz, The Hist~ry of the Public/Private Distinction, 130 U. PA. L. REV. 1423 (1982);
McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters
of Laissez Faire Constitutionalism, 1863-1897, in AMERICAN LAW AND THE CONSTITUTIONAL
ORDER 246, 261-64 (L. Friedman & H. Scheiber eds. 1978).
79. Leep v. Railway Co., 58 Ark. 407, 421, 25 S.W. 75 (1894) (emphasis added). In Leep, the
Court conducted an extended analysis of the public power to regulate contracts, in each instance
relating the exception to the general liberty of contract to the public nature of the busin~s. the
incapacity of a party, or the possibility of fraud. See Budd v. New York, 143 U.S. 517 ,(1892)
(distinguishing regulable and nonregulable contractual relations on the basis of the presence or
absence of a public interest); Munn v. Illinois, 94 U.S. 113 (1876) (same); Commonwealth v. Perry,
155 Mass. 117, 28 N.E. 1126 (1891); San Antonio & A.P. Ry. v. Wilson, 19 S.W. 910 (Tex. Ct. App.
1892) (striking down legislation interferring with the freedom to contract); State v. Goodwill,
33 W.Va. 179, 10 S.E. 285 (1889) (same).
In Leep, the Court held that a state statute requiring that railroad employees be paid in full
upon discharge violated the constitutional liberty of contract with respect to natural persons but not
with respect to corporations since, unlike natural persons, corporations derive the right to contract
from the legislature which created them and reserved the right to amend the corporate charter.
Needless to say, this specific analysis was not universally adopted. The point here is that, even in
judicial opinions upholding public regulation, the legitimacy of the regulation was seen to depend on
the ability to categorize the subject matter as public rather than private.
80. 236 U.S. at 15.
464
I
I
1985]
Critical
1197
I It
it
.I
,,il
,,il
should be permitted to "freely choose." 81

The Court, in Adair v. United States, 82 faced with a similar Congressional regulation of "yellow-dog" contracts, conceded that contracts
"inconsistent with the public interests or . . . hurtful to the public order
or . . , detrimental to the common good"83 could be regulated or
banned. But so long as no "public" interests were involved, the parties
were in the autonomous private realm. In that realm it "was the right of
the defendant to prescribe the terms upon which the services of Coppage
would be accepted, and it was the right of Coppage to become or not, as
he chose, an employe[e) of the railroad company upon the terms offered
to him." 84 Quoting Cooley on Torts, the Court continued:
"It is a part of every man's civil rights that he be left at liberty to refuse
business relations with any person whomsoever, whether'the refusal rests
upon reason, or is the re5ult of whim, caprice, prejudice or malice. With
his reasons neither the public nor third persons have any legal concern. . . . [I]f he is wrongfully deprived of this right by others, he is
entitled to redress." 8 s
The Adair Court implied that, since the contract was "freely" entered
into and no "public" interests were at stake, the congressional action was
analogous to the common law tort of interference with contractual
relations.
The metaphoric division of the world into "private" and "public"
spaces underlay the conception of the general relationship between individuals and the government. The public realm began where the private
realm ended. The government was accordingly authorized to act in the
"public" sphere of social life. And, just as the private sphere was associated with the presence of individual free will, the public sphere was associated with the absence of individual free will. 86 Accordingly, the Court
in Coppage assumed that if the state legislature were regulating contracts
that were the result of "coercion, compulsion, duress, or undue influence," the legislation would have been constitutional, precisely because,
in such instances, it would not be invading the "private" sphere of action.
The problem with the legislation at issue in Coppage was that
I
I.
[w]e have nothing to do with any question of actual or implied coercion

or duress, such as might overcome the will of the employe[e] . . . .
81. /d.
82. 208 u.s. 161 (1908).
83. /d. at 172.
84. /d. at 17273.
85. !d. at 173 (quoting T. COOLEY, A TREATISE ON THE LAW OF TORTS 278 (1st ed. 1880)).
86. For example, the public realm was implicated in coerced relations discussed in Coppage, in
relations with parties incapable of exercising rational free will, in contracts having external effects or
"public" consequences on others who did not consent, or in areas where individual intent could not
achieve the common good (the construction of public highways and the like). See supra cases cited
at note 79.
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[T]here is nothing to show that Hedges was subjected to the least pressure or influence, or that he was not a free agent, in all respects competent, and at liberty to choose what was best from the standpoint of his
own interests . . . .87
In the private sphere the individual was free and autonomous and
thus government power only would be exercised based on the individual's consent, manifested in a contract, a criminal wrong, or anegligent
tort. 88 Similarly, when the goveniment acted, its actions were legitimate
only to the extent that it stayed within its sphere of power. Since the
governmental realm was defined by its "public" nature, the- government
could not help some "private" parties at the expense of others; such
"class legislation" would invade the private sphere of free will and
amount to coercion. If the state were not neutral, the individual would
be subject to the will of another, aided by the State. The two realms, the
public and the private, were ..conceived as separate from each other and
exhaustive of the social world.
Accordingly, the Court in Lochner saw itself concerned not with the
choice of one ideology or another, but rather with the simple determination whether a particular act fell into the private or public sphere of life.
Justice Peckham began the opinion by excluding "coercion" as one of the
bases for the imposition of public power with respect to employment contracts between bakers and their employers since, like Coppage, 'the case
was not concerned with "physical force being used to' obtain the labor of
an employe[e]." 89 Rather, a "voluntary" eontract "between persons who
aresuijaris (both employer and employe[e))" was at issue, and the "right
to purchase or to sell labor is part of the liberty protected by this [the
Fourteenth] amendmenl, unless there are circumstances which exclude
o the right." 90 Such circumstances defined the power of the government,
limiting it to matters of general public concern or to instances where the
free will was absent. Having established that the contract was not
coerced, the only question for the Lochner Court was whether the contract had public consequences. Unless the uncoerced contract affected
the "s~fety, health, morals [or] the general welfare of t}le public" 91 the
government simply had no power to act.
The modern understanding is that the categories of public and private areas of life constitute a continuum. Consequently, the issue facing
the Lochner court would require a balancing or a line drawing between
poles. We therefore imagine that the Lochner Court implicitly balanced
87. 236 U.S. at 8-9.
88. See Kennedy, Form and Substance, supra note 71, at 1728-30.
89. 198 U.S. at 52.
90. /d. at 53-54.
91. /d. at 53.
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the public and private interests at the point where particular social acts
were categorized as public or private. The liberty of contract discourse,
however, did not treat the terms "public" or "private" as mere metaphors representing matters of degree, alluding to a state of affairs that
never "actually" exists. Instead the terms were taken to re-present qualitative distinctions out there in social life, not merely judgments as to the
relative quantity of factors present more or less in all relations. 92 Contracts were either voluntary or coerced. Hence contracts were made by
people "who are entirely free to act," 93 or there was duress or coercion
which "compels a man to go against his will, and virtually takes away his
free agency."94 A particular issue either concerned the public, or it did
not. Hence it was possible to invoke a subject matter "purely and exclusively private" as opposed to "some object directly affecting the public
welfare." 9 s The statute at i8sue in Lochner was amenable to a similar
either/or analysis: "Is this a fair, reasonable and appropriate exercise of
the police power of the State. or is it an unreasonable, unnecessary and
arbitrary interference with the right of the individual to his _personal liberty . . . ?" 96 The term "reasonable" should be understood in the context of this qualitative, either/or COJ1Struction. "Reasonable" did not
refer, as it does in the modern legal usage, to a judgment as to relative
costs and benefits. Rather, it referred precisely to the question amenaple
to "reason"-whether the statute was within the sphere of governmental
power, the public sphere, or whether it invaded individual rights, the
private sphere.
In the liberty of contract discourse, the terms "public;" and "private" were taken to have a direct, determinate correlation with objective
things. That is, the terms were not considered to be metaphors at all.
They were labels that applied to aspects of social life inherently divided
in a manner that the labels matched... "Priyate" acts were distinct from
"public" acts and shared characteristics with each other. "Private" acts
exhibited the presence of free will and the absence of external effects that
would inhibit the autonomy of others. These shared characteristics made
92. The notion that the liberty of contract discourse projected qualitative as opposed to quantitative distinctions is intended to convey what elsewhere has been characterized as the ''on-off,"'
"deductive, or "vacuum boundaries"" of the discourse. See, e.g.. Katz, Srudies in Boundary Theory:
Three _Essays in Adjudicarion and Polirics, 28 BUFFALO L. REV. 383 (1979); Kennedy, supra note 71;
Mensch, The Hisrory of Mainsrream Legal Thoughr. in THE POLITICS OF LAW (D. Kairys ed. 1982);
Pound, Liberry of Conrracl, 18 YALE L.J. 454 (1.909); Pound, Mechanical Jurisprudence, 8 COLUM.
L. REV. 605 (1908).
93. Hartford Fire Ins. Co. v. Kirkpatrick, Dunn & Co., lll Ala. 456, 465, 20 So. 651, 654
(1896).
94. Joannin v. Ogilvie, 49 Minn. 564, 566, 52 N.W. 217, 217 (1892); see also Hale, Bargaining,
Duress and Economic Liberry, 43 CoLUM. L. REV. 603, 616 (1943) and cases cited therein.
95. Leep v. Railway Company, 58 Ark. 407, 421, 25 S.W. 75, 79 (1894).
96. Lochner v. New York, 198 U.S. 45, 56 (1905).
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all "private" acts essentially alike. The same was true for- the "public"
tealm. Accordingly, the conceptual world and the real world were
merged; the analogies drawn in the legal argumentation were neutral
because they were "real."
Thus, in Lochner it was "not a question of substituting the judgnfent
of the court for that of the legislature. If the act be within the power of
the State[,) it is valid .... " 97 If the bakers were physically c6erced, as
already noted, the statute would be valid. The employment contract
then would not reflect the presence of the wjll of the employee. Similarly, if the bakers were not parties competent to exercise their will, the
legislation would pass muster. But the Court observed there was
no contention that bakers as a class are not equal in intelli~ence and
eapacity to men 1n other trades or manual occupations, or that they are
notable to assert their righ'ts and care for themselves without the protecting arm of the State . . . . They are in no sense wards of the State . . . .
[T]he interest of the public is not in the slightest degree affected by such
an act."98
The same reasoning marked the determination of whether the statute was valid with respect to the health of the bakers. Occupations fell
intd two categories, one presenting the, normal health risks and one
presenting extraordinary health risks. Unless some relevant qualitative
distinction existed between baking and other occupations, no basis
existed for upholding the law as,a health law. But, "looking through
statistics regarding all trades and occupations,"99 the Court found baking
no more unhealthy than the normal nin of occupations. Since every
occupation arguably carries some health risk, the mere presence of a
health aspect could not define the scope of legislative power since legislative power then would be limitless. "It might be safely affirmed that
almost all occupations more or less affect the health. . . . But are we all,
on that account, at the mercy of legislative majorities?" 100 On the other
hand, the limitation of work hours in Holden v. Hardy 101 was distinguished based on the "kind of e,mployment, mining, smelting, etc., and
t}_le character of the employe[e]s in such kinds of labor . . . . "} 02 That
statute applied "only to the classes subjected by their: employment to the
peculiar conditions and effects .attending underground mining . . . ." 103
The Court in Coppage similarly analyzed the constitutionality of legislation forbidding discharge on the basis of union membership in terms
97.
98.
99.
100.
101.
102.
103.
/d. at 56-57.
/d. at 57.
/d. at 59.
/d.
169 u.s. 366 (1898).
Lochner, 198 U.S. at 54.
/d. at 55 (emphasis added).
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THE METAPHY.~fCS OF AMERICAN LAW
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Critical
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of the public/private dichotomy. In the process, the Court demonstrated

its sensitivity to the "formalism" with which liberty of contract practice
commonly is charged. There the state declared that the purpose of the
legislation was to repress coercion, duress, and undue influence of
employers over employees. 104 But the Court refused to be satisfied by the
form of the legislation. The right to contract cannot be violated "by
merely applying to its exercise the term 'coercion.' " 10s "[T]he,decision
is not to depend upon the form of the state law, nor even upon its
declared purpose . . . . Nor can a State, by designating as 'coercion'
conduct which is not such in truth, render criminal any normal and
essentially innocent exercise of personal liberty or property rights
,106
In the Court's view, behind the forms lay the "truth" which was
that the employee was "free to exercise a voluntary choice." 107 Therefore legislative interference with the contract invaded the private realm,
regardless of how -the legislation was formally designated or rationalized.
And the statute could not be saved as an attempt to strengthen unions,
either, since they "are not public institutions, charged by law with public
or governmental duties, such as would render the maintenance of their
membership a matter of direct concern to the general welfare." 108
Unions are "voluntary organizations," like other "voluntary associations,"109 and indeed like the employment relation itself: "[S]ince the
relation of employer and employe[e) is a voluntary relation, as clearly as
is that between the members of a labor organization, the employer has
the same inherent right to prescribe the terms upon which he will consent to the relationship . . . .'' 110 The argument that the legislationwas
necessary to protect the employees' exercise of their free will to join a
union, a " 'personal and private affair' of the employe[e], " 111 simply
proved too much-the employer had the same private right to choose
employees, and therefore the legislation invaded the private sphere of
social life.
The public/private dichotomy relied on in Lochner and Coppage
was not merely concocted for use in constitutional argumentation, nor
simply with reference to employment contracts. Constitutional protection of the "private" realm depended on the assumption that at common
law the courts were merely ratifying individual intent rather than impos104. Coppage v. Kansas, 236 U.S. I, 8-9 (1915).
105. !d. at 9.
106. !d. at 15-16 (emphasis added).
107. !d. at 9.
108. !d. at 16-17 (emphasis added).
109. Jd. at 16.
110. Jd. at 20.
Ill. Jd. at 19.
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ing objective rules. 112 The common law was imagined to be facilitative
rather than regulative through tHe very same public/private representational structure. This dichotomous structure, based on the presence or
absence of free will, was echoed in each of the common law fields.
Private law generally was conceived as the realm where the judiciary
carried out the prior intentions of social actors. Accottlingly, obligations
between individuals could not be objectively imposed in a regulative
manner; instead, judicial power to compel one individual to give 1noney
or specific performance to another was dependent upon the individual's
consent. This consent was manifested in the assent to contractual terms
or the subjective fault of an intentional or negligent tortfeasor. Similarly,
an individual's criminal liability rested on the subjective intent to commit
a crime, which implicitly manifested consent to public sanctions. So long
as the individual made no subjective move outside the "private" sphere,
neither the government nor the courts }).ad gtounds to exert power. In
private law, the judiciary was conceived as a neutral mediator for the
enforcement of individual intent, just as in constitutional law legislative
power was limited to the neutral public interest. The representational
language that shaped constitutional law also ensured neutrality at commQn law as judges simply identified-the presence or absence of free will.
The private/public dichotomy informed the relationship between
private law fields and the doctrinal distinctions within the fields diemselves. For-example,. the categorization of social relations as matters of
either contract or tort echoed the relation between individuals and government generally as it repeated the basic public/private metaphor. Contract represented the area of social life where people knew each other aqd
where their relations were marked by the presence of will; contract law
embodied the "private," self-present side of the public/private dichotomy. Torts, on the other hand, represented the area of social life where
people did not know each other and therefore could not contract, or
where they knew each other but had not contracted. Tort law therefore
was essentially supplementary. It filled in where free will was absent.
Therefore tort law, vis-a-vis contracts, stood on the public side. Just as
the legislature could regulate matters relating to the common welfare,
since individual contracts would be insufficient for such public ends, torts
existed in private law as a public supplement where private contracts
could not govern the relations. Just as the legislature could regulate contracts that were the result of coercion, because in such circumstances free
will was absent, the courts could regulate social relations through the
112. If courts were imposing common law regulative duties in contract cases, constitutional
protection of the contractual realm could not be seen as.the protection of individual free will. For a
discussion of the integration of constitutional and common law contract doctrine that focuses on the
notion of individual free will, see Kennedy, Form and Substance, supra note 71, at 1728-31.
470
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t?rt doctrines o~ as~ault,. false imprisonment, fraud, and misrepresentatlO~,
each of ~htch tdenttfied the absence of free will. 113 And just as the
legtslature actmg beyond its powers would invade the private realm, tort
law had to b~ neutr~ to private ends in its protection of the private
sphere of actton. Thts essential similarity of the relation between the
individual and the government and the relation between contract and
tort was captured by the Adair court's analogy between legislation invading the right to contract and tortious interference with contract.
This representational structure was also reflected in the internal
organization of each field. Within contracts, "[t]he first and most essential element of an agreement is the consent of the parties. There must be
the meeting of two minds in one and the same intention." 114 To determine this consent~ the cou~ presumed the free will of a competent party
~nd w.ould only mterfere m the absence of free will, in circumstances
mvol~ng duress or undue influence. The presence of free will signified
the pnvate self-determination of the party. 115 The absence of free will
signified that assent had been gained by the infliction of pressure frotn the
~outside," from s?meone else's will, say someone who threatened instigatiOn of prosecutton to induce another to settle an insurance claim
(duress) 116 or so~eone who exerci~ed a peculiar power over the party
because of a spectal nonmarket relationship (undue influence). 117 Thus
the free will/coercion dichotomy, like the general constitutional divisio~
between the purely "private" and the "public", was based on a qualitative
presence or absence of the "private" individual, who was free from the
domination of ~he wi~l of others. Each contrast either revealed the prese~ce of free wtll or tts absence, just as' each piece of social legislation
etther reflected public concerns or invaded the purely "private" realm.
The judicial decision to enforce some contracts accordingly was con113. See 2 T. CooLEY, A TREATISE ON THE LAW Of TORTS 346-67 (D. Haggard 4th ed.
1?32). The point is not that torts or the other common law areas were organized in a radically
?trerent way than they are today; rather, it is that the perceived logic of that ordering derived from
m~ded metaphors for the representation of social life. In other words, the categorization of tort
doctnnes could be seen as sharing unifying characteristics with more general notions of social
ordering.
114. SeeS. WILLISTON, PRINCIPLES Of CoNTRACT AT LAW AND IN EQUITY 3 (3d ed. 1906).
115. Free will characterized "persons who are entirely free to act in making or refusing such
contracts." Hartford Fire Ins. Co. v. Kirkpatrick, Dunn & Co. Ill Ala. 456 465 20 So 651 654
( 1895).
'
'
'
.
'
116. !d.
117. "The influence which suffices for the avoidance of a conveyance . . . is such as dominates
the grantor's will and coerces it to serve the will of another . . . ." Adair v. Craig, 135 Ala. 332,
335, 33 So. 902, 903 (1902). "The undue influence . . . must be such . . . that the party making it
has no free will . . . . " Conley v. Nailor, 118 U.S. 127, 134-35 (1886). See generally S. WILLISTON,
supra note 114, at 732-47; Dawson, Economic Duress-An Essay in Perspective, 45 MICH. L. REV.
253 (1947).
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ceived as neutral and apolitical, the result of objective classification

rather than policy balance.
The determination of contractual competency involved similar reasoning. Certain categories of people were competent by virtue of the
presence of rational free will; others, such as infants, lunatics, and
drunken persons, were incompetent because they lacked the capacity for
rational.consent. These qualitative differences existed in the categories
themselves.
[T]o set aside any act or contract on account of drunkenness, it is not
sufficient that the par;ty is under undue excitement from liquor. It must
rise to that degree which may be called excessive. drunkenness, where the
party is utterly deprived of the use of his reason and understanding; for in
such a case, there can, in no just sense, be said to be a sepous and deliberate consent on his part . . . . us
Torts reflected a similar division. For private acts with no general

public consequences, liability would not be imposed without negligence.
Negligence was conceived of as subjective fault and thus an implicit
consent to public sanctions. 119 For activities having general public consequences, such as the business of common carriers or ultrahazardous
activities, strict liability, an objective and publ!c standard, w~
imposed. 120
This general survey of common law tort and contract should reveal
how the spatial public/private dicliotomy organized. brpad ar~ of legal
discourse, integrating the vision of the world in the representational practice. The sense of this practice at the constitutional level was reinforced
by its reproduction at common law. Just as "private" and "public" were
oppositional metaphors in constitutional political theory, the common
law was built upon the same dichotomies. In constitutional theory the
dichotomies defined the relation between the individual and the state,
while at common law it defined the boundaries of contract and tort. At
common law each field in turn was internally organized according to the
118. Cook v. Bagnell Timber Co., 78 Ark. 47, 51, 94 S.W. 695, 697 (1906) (quoting I J. STORY,
COMMENTARIES ON EQUITY JURISPRUDENCE 231).
119. See generally 3 T. COOLEY, supra note 113, 478-501; Ames, Law and Morals, 22 HARV.
L. REV. 97 (1908) (arguing that the negligence standard is an individual fault standard that reflects
modem ethical notions of moral blameworthiness); 0. W. HOLMES, THE COMMON LAW 77-84, 81!96 (1881) (arguing that, just as damages in contract are based on consent, tort damages under a
negligence standard are bfSed on choice, henCe the requirement that consequences be foreseeable).
Professor Morton Horwitz has suggested that in his early work Holmes viewed custom as a .:nediat
ing category between individual choice and social regulation; given the view that custom consisted of
individually chosen behaviors that had become near-universals. Horwitz, Rosenthal Lectures at
Northwestern University Law School (1981) (unpublished lectures on file with the author.)
To the extent that custom was viewed as rooted in individual choice, there was no inconsistency
in basing obligations in private law on consent and in instituting negligence on the standard of care
theory where there was no explicit contractual relatitm. SeeM. HoRWITZ, supra note 78, at 202-03.
120. See generally 3 T. CooLEY, supra note 113, 45377.
472
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same dichotomy. Within contracts there were doctrines representing

both the presence and the absence of free will. Within torts, social activities were divided by their private or public nature, roughly corresponding
to the imposition of an objective or subjective standard of liability.
the spatial metaphor was reflected at each level of legal consciousness as it was a deeply engrained convention about the proper way to
re-present social relations. Its plausibility in any particular doctrinal
field was confirmed by the organization of the other areas along the same
metaphor. In tum the other areas were confirmed by its presence in any
particular area. In some way, then, each part of the discourse was a
microcosm of the totality of the representational structure as it pointed
toward that totality for its claim to "reason." The public/private dichotomy itself was never demonstrated to be the appropriate way to categorize social activities; the dichotomy existed as part of "what goes without
saying." In short, it was an interpretative code for the re-presentation of
social life that was not itself subject to question in the cases. The dichotomy was imbedded into the texture, the grammar, of the discourse. It
was part of the background structure within which argument took place
and within which particular assertions of likeness and difference
appeared "real" as opposed to "merely" metaphoric.
Accordingly, the Court in Lochner approached the constitutional
issue by resorting to the stages of a common law analysis. It first determined whether the contract was the "private" expression of free will by
determining the existence of an offer and acceptance, the competency of
each party, and the lack of any duress or coercion. In Adair, it was relevant to cite tort law when discussing the relationship between the public
power of government and the private power of the individual. Tortious
interference with contractual relations was an appropriate analogy for
the constitutionality of legislation because the issues were essentially the
same-the relation of private to public, free will to coercion, contract to
tort, negligence to strict liability.
The general relation of spatial terms provided the grounds for determining what in the conceptual space looked alike and what looked different. Thus, within the background representational conventions, the acts
of joining a union and obtaining employment analogized in Coppage
shared essential attributes. In each case, the individual was "privately"
assenting to the terms and conditions of a particular relationship. And in
Adkins v. Children's Hospital, where the Court struck down minimum
wage legislation, the employment relationship was essentially like the
relationship between a shopkeeper and a customer. As Justice Sutherland wrote:
In principle, there can be no difference between the case of selling labor
and the case of selling goods. If one goes to the butcher, the baker or
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grocer to buy food, he is morally entitled to obtain the worth of his

money but he is not entitled to more. If what he gets is worth what he
pays he is not justified in demanding more simply because he needs more;
and the shop~eeper, having dealt fairly and honestly in that transaction,
is not concerned in any peculiar sense with the question of his customer's
necessities . . . . [A] statute which prescribes payment . . . solely with
relation to circumstances apart from the contract of employment, the
business affected by it and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to
stand under the Constitution of the United States. 121
This reification of metaphoric terms within the liberty of contract

era legal discourse made any particular decision appear nonideological,
at least in the, s~nse that no fully conscious political choice was being
made; rather, each decision seemed natural within the texture of the; representational language. Within that language, cerytin analogies seemed
based in objective reality rather than mere legal interpretation. The similarity of joining ~ union and working for a railroad, the similarity of
buying food and buying servants, or the similarity of the relation between
the individual and the government, contract apd tort, and the opposition
of free will and coercion, or private and public activities, seemed necessary, ruled by qualitative differences and likenesses existing in objective
reality. The legal representational language mediated the re-presentation
of the world. This re-presentation, then was treated as the neutral and
determinate meaning of social events. The participants in the legal discourse socially constructed a language of representation and then collectively imagined that the metaphors were real.
But the explication of the public/private representational categ~ries
doesn't fully explain the "rationality" of the liberty of contract decisions
within the representational practice. Given only the spatial metaphors,
each liberty of contract case could have been "rationally" decided the
other way. Since every occupation affects health, the Lochner Court,
consistent with the public/private representational practice, could have
held that all employment relations were in the public sphere of health,
safety, and morals. And in Coppage, the Court recognized that protection of employees' private decisions to join a union would infringe on the
free choice of the employer. The Court just as rationally, within the spatial categ<?ries, could have concluded that the exer;cise of "private" rights
contradicted one another. The Court then could have endorsed legislative mediation, since the exercise of the "private" free will of one person
infringed the ;'private" free will of another, establishing "public" consequences. Yet the fact that all occupations have health aspects was used
121. Adkins v. Chi1dren"s Hosp., 261 U.S. 525, 55859 (1923), overruled, West Coast Hotel Co.
v. Parrish, 300 U.S. 379, 400 (1937); see also Charles Wolff. Packing Co. v. Court of Indus. Re1atio!>S,
262 u.s. 522 ( 1923).
474
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as a reason to forbid the maximum hour legislation in Lochner. The fact

that protection of the employees' private choices infringed the employers'
free will was used as a reason to strike down the labor legislation in
Coppage. In order to comprehend how these arguments could have been
taken as rational and persuasive rather than as totally citcular and vacuous, it is necessary to examine another dimension of the representational
practice, the dimension of time.
2.
The Temporal Metaphors
The representational language of legal discourse served not only to

place things in their proper taxonomic places. It also established a sense
of social relations in time, a sense of history. Accordingly, the public/
private dichotomy did not merely describe social regions external to and
exclusive of each other in a spatial sense. The representational practice
also projected a particular temporal relation between the two realms.
One realm was seen as a source of the other. An extended passage from
Coppage is instructive in this regard.
No doubt, wherever the right of private property exists, there must and
will be inequalities of fortune; and thus it naturally happens that parties
negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts, and. not merely to that between
employer and employe[e]. Indeed, a little reflection will show that wherever the right of private property and the. right of free contract co-exist,
each party wh,en contracting is inevitably more or l~s influenced by the
question whether he has much property, or little, or none; for the contract is made to the very end that each may gain something t.hat he needs
or desires more urg~ndy than that which he proposes to give in exchange.
And, since it is self-evident that, unless all things are held in common,
some persons must have more propertY. than others, it is from the nature
of Jhings impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those
inequalities of fortune that are the necessary result of the exercise of those
rights.zz
Now, it is possible simply to dismiss this passage as apologetic rlietoric. The issue in Coppage was whether the legislature could forbid
employers' from refusing to employ union members. Such a proscription
would increase the bargaining power of union employees generally. On
one level, th.en, the Court's response here 'was entirely circular; it was
question begging to say that the bargaining power of employers and
employees cannot be changed b~cause it is "inevitable" that "some persorts must have more property than others." The very issue in the case
was who would have more and who would have less. And the inevita.bil122.
Coppage v. Kansas, 236 U.S. I, 17 (191S) (emphasis added).
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ity of inequality of fortune whereby some contracting parties were "more

or less influenced" by the distribution of property suggests that each contract was in the public sphere since each assent to contract would occur
within the context of such "external" influ~nces.
This recognition of circularity in the Coppage argument depends on
the modem undetstanding that the distribution of wealth and bargaining
power is asocial decision. Accordingly, we see the legislative attempt to
alter the balance of bargaining power as simply another social decision,
not qualitatively different from the status quo. Snch an interpretation,
however, reverses the temporal order of representational terms in the liberty of contract discourse. Within the metaphoric structure in which the
private realm is considered as the origin and source of the public realm,
the Coppage argument was not circular, but dramatically logical. The
distribution of wealth between employers and employees did not coerce
the individual because the individual created the economic context. So
long as contracts were ,products of individual intent, "purely and exclusively private," the inequalities of wealth and bargaining power between
employers and employees were simply the derivative effect of individual
choices, rather than objectively imposed conditions restraining
individuals.
Accordingly, the inequality of bargaining power between employer
and employees could not justify ameliorative labor legislation because "it
is from the nature of things impossible to uphold freedom of contract and
the right of private property without at the same time recognizing as
legitimate those inequalities of fortune that are the necessary result of the
exercise of those rights." 123 Social context was 'seen to flow from individual intent, not the other way around. Prior and "purely private" subjects freely engaged in contractual relations from which inequality of
fortune resulted. Since free subjects were the cause of the market context
in which inequality of bargaining power existed, that inequality could not
itself be the cause of their consent to contract. Bargaining inequality was
not a prior objective restraint limiting the freedom of subjects, but was
instead a result of the' freedom of subjects. As such it was a derivative
and supplementary context, derivative of a prior, pure freedom.
This temporal relation between the spatial terms of "public" and
"private" oriented the representation of social relations. The temporal
metaphor provided a structure for an integrated, mythic history of society, which, like the spatial metaphor, was echoed and reinforced in each
doctrinal subdivision.
The historical myth began with the temporal priority of free, unregulated individuals. Original and unsituated private subjects came before
123.
/d.
476
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the formal public realm and created that realm, just as private, free individuals created the economic context. The public realm therefore
derived from a place where the individual was self-present, free from
external influence. This temporal relation made it possible to see the
government as the intended result of a broad social contract-formerly
free individuals came together and rationally agreed to forego some of
their unbounded freedom for the fruits of social cooperation. The public
realm of government therefore was secondary and derivative of the original private realm. This causal view of society was reflected in the notion
that the Constitution embodied the original social contract and "caused"
the governr_nent to exist.
This representation of the origin of the public sphere provided the
basis for the distinction between coercive and legitimate public power.
Coercion was rooted in the subordination of the self to the will of the
other. When the social contract was made, private individuals gave up
their formerly unbounded freedom on the condition that government
would not favor some persons over others {"class legislation"), but rather
would be neutral to the private sphere. The governmental sphere was
supplementary, necessary to achieve public ends that the succession of
individual contracts could not accomplish.
If, however, the government (here either the legislature or the judiciary)
was
nonneutral, and thus favored some private interests over others,
.
tt became coercive. Thus legitimate, noncoercive public action would
simply be a re-presentation of the self-present will of the private individuals who brought the government into being at the constitutional level,
and a re-presentation of the self-present will of parties in common law
124 w h
practtce.
tt respect to tasks that the social contract had delegated
to the formal government, the individual was not coerced. With respect
to such public activities, the government represented the original will of
the private realm, just as a contract re-presented the prior intent of a
contracting party. When the government overstepped its bounds, however, it no longer re-presented the self-present free will of formerly private individuals. Instead, government then subordinated the private will
to the will of others; the government became the source of duress as it
overcame rather than re-presented the will of the individual.
This vision of the distinction between legitimate and coercive public
power clarifies why economic context could not be coercive. Coercion,
conceived as the subordination of one will to another, had to be rooted in
another's will. But no one willed the economic context. It was not
124. Re-presentation, in this context, as in the context discussed in the beginning of this Article,
refers to a process whereby the positive object being represented is not differentiated in the representation. To the extent that differentiation is associated with absence and external power, re-presentation is associated with freedom from social coercion.
------
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477
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analogous to the overbearing will of party using duress, the u~du~ in~u
encer, the defrauder, or the-overreaching State. Instead, the dtstnbutton
of bargaining power was analogous to the legitimate formal government,
where social power originated in self-present free will and was a re-presentation of that free will. Like government operating within its public
bounds the economic context within which employers and employees
bargai;ed was itself a neutral medium that re-presented the origina~ free
will of private parties. Economic context was the result of the exerctse of
privately held rights.
This temporal metaphor for the representation of social life o.rdered
the perceived relationship between the individual and the econo~tc co~
text, as evidenced by the Coppage discussion, as well as the relattonshtp
between the public and private spheres generally. The temporal convention was reflected at each level of legal discourse. Like the spatial public/private dichotomy, it provided an orienting point for the
representation of particular social relations. The _te~~oral metaph~r
appeared in the representation of the primacy of the mdlVldual over soctety; of contract over tort, of free will over coercion, of c?mp~te~~y over
incompetency, and the primacy of negligence over stnct habthty. In
practice, the temporal convention served as a principle of construction a
judge could use to distinguish the two realms in each of the fields. 125
This temporal ordering of the spatial metaphors was reflected in the
subdivisions of the private and public spheres themselves. In the governmental sphere, the subdivision of state and federal powers reft_ected this
metaphoric order. The state, closer to individuals, was.vis-a-vts the federal government closer to the private realm. Accordingly, the states possessed the general power to legislate for the public good. 126 A.nd just as
the governmental realm itself supplemented individual will, picking
125. I do not mean to suggest that the "principle of construction" provided any determinate
answers in particular cases. To the contrary, as I suggested earlier, the terms "public" and "private"
themselves could have been used to reach exactly the opposite results in Coppage and Lochner. The
addition of the temporal priority of the private side of the analytic only gives a sen_se of ho~ the
spheres might be generally conceived. Its application in any particular case was m~etermmate.
Compare Lochner v. New York, 198 U.S. 45 (1905) with New York Cen~. R.R_. v. W_hrte: 2~~ U.S.
188 (1917) (holding that the New York Workmen's Compensation Law, tmposmg stnct habthty on
the employer and limiting recovery by employees, did not violate freedom ,ol contract bec_ause_ It
related to a public interest in the health and safety' of individual workers); compare also Whue wuh
Ives v. South Buffalo Ry., 201 N.Y. 271, 296, 94 N.E. 431, 440 (1911) (striking down the! same
statute as violating the due process clause by ''taking the property of A and givi~g it to B". based
simply on the "legislative fiat" that an occupation is "inherently dangerous."). In hght of Whue, the
symmetry of the constitutional and common law that I have descnbed was not total. The baste
common law contract doctrines were incorporated into constitutional law, and thus the common law
doctrines of incompetency, duress and fraud generally overlapped the legislative regulatory po~er.
However, the basic common law tort structure that distinguished negligence (as consent and applicable to private relations) and strict liability was never so constitutionalized at the federal level, though
it was in some states.
126. There are many statements of this general police power to legislate with reS;>ect to the
478
1985]
479

1211
where individual agreements could not generate publicly desired goods,

the power of the individual states could not reach some generally desired
goods, such as the regulation of interstate commerce and the conduct of
foreign affairs. The federal government therefore had the same relationship vis-a-vis the states as the government generally had vis-a-vis the
individual, namely as a supplement to a primary source. 127
The representation of the private sphere was similarly constructed.
The division between tort and contract mirrored the public/private and
federal/state divisions. Contract, reflecting the self-present will of the
parties, was primary and private. Tort law operated where the contract
realm functionally could not. The Court's sympathetic treatment of
attempts to avoid tort liability by contract reflected this temporal division. 128 Just as governmental power began where the private sphere
ended, tort began where the contractual sphere ended. Tort accordingly
included general doctrines relating to the imposition of one party's will
on another (fraud, misrepresentation, false imprisonment, etc.) and doctrines that defined extra-contractual relations (the general duty to refrain
from negligence in private-type activities, the imposition of strict liability
for public-type activities).
Tort was internally organized along the same temporal metaphor.
Negligence, conceived as the fault of the individual, was the primary
standard for private activities. Strict liability was limited to public activities, which had to be neutral to the private sphere and therefore could
not impose costs on private actors. Most activities were assumed to be
private. The public category consisted of'clearly defined and exceptional
activities (for example, transport by common carriers and ultrahazardous
businesses). This structure accorded with the generai primacy of the private sphere and supplementarity of the public sphere.
health, safety, and morals. See, e.g., Douglas v. Kentucky, 168 U.S. 488 (1897) (state under its
police powers, may revoke lottery grant to protect public morals),
127. This interpretation is consistent with the Court's relatively strict reading of the commerce
clause during the liberty of contract era. See, e.g.. Carter v. Carter Coal Co., 298 U.S. 238 ( 1936);
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Hammer v. Dagenhart, 247 U.S. 251
(1918), overruled, United States v. Darby, 312 U.S. 100, 117 (1941); Kidd v. Pearson, 128 U.S. I
(1888); see also United States v. Butler, 297 U.S. I (1936) (similar analysis with respect to the spend
ing power); Child Labor Tax Case, 259 U.S. 20 (1922) (taxing power).
128. Such contracts could be either explicit or implied. See, e.g., Hartford Fire Ins. Co. v.
Chicago, M. & St. P. Ry., 175 U.S. 91 (1899) (contract for excluding liability from negligently
ignited fires held enforceable); Bush v. Bremner, 36 F.2d 189 (8th Cir. 1929) (provision absolving
carrier from liability for injury to passenger riding on free pass held valid). Sometimes such contracts were implied, normally through an assumption-<>f-risk theory. See. e.g.. Narramore v. Cleveland, C.C. & St. L. Ry., 96 F. 298 (6th Cir. 1899); Quinn v. Recreation Park Ass'n, 3 Cal. 2d 725,46
P.2d 144 (1935) (voluntary spectators assumed risk of being hit.by batted ball); Standard Steel Car
Co. v. Martinecz, 66 Ind. App. 672, 113 N.E. 244 (1916); Ehrenberger v. Chicago, R: I. & P. Ry.,
182 Iowa 1339, 166 N.W. 735 (1918); O'Maley v. South Boston Gaslight Co., 158 Mass. 135,. 32
N.E. 1119 (1893); Scanlon v. Wedger, 156 Mass. 462,31 N.E. 642 (1892) (voluntary spectaio.>
assumed risk of danger of fireworks).
1212
[Vol. 73:1151
Contract incorporated the. same temporal ordering. The spatial

division between public and private wa,s identified ,by the presence or
absence of free will as reflected in ~he duress and undue influence doctrines. This spatial division was temporally ordered so that free will w~
primary and lack of free will was exceptional lVld derivative. Accordingly, the individual's will was presumed to be free, unless someont~
affirmatively restrained it. 129 The sam~ temporal ordering held ',Vith
respect to competency doctrine. Sip.ce the presence of free will wa,s pri~
mary, its absence was exceptional and secondary. Thus in general, parties were presumed .to be competent. Only in exceptional, delineate,d
groups would lack of contractual competency be found. 130
This temporal construct of priority and supplementarity explains
how the arguments in the liberty of contract cases could be perceived as
noncircular. Against a background construction of the priority' of private .over public, the Lochner Court could view the potential of all occupations to affect health as placing occupations generally in the private
rather than the public sphere. Just as common law contract practice presumed free willand competency in the absence of some exceptional and
qualitatively different circumstances, occupations were presumptively
private unless some exceptional and qualitatively different attribute distinguished a particular occupation from employment. generally. The
ultrahazardous mining activity in Holden v. Hardy 131 satisfied this test of
qualitative difference. The "ordinary" health aspects of baking, however,
eould not justify public legislation without reversing the temporal metaphor. Such a reversal would have placed public power over the general
run of social activities, rather than limiting such power to a supplementary, exceptional, 'and derivative role. And in Coppage, the fact that the
employer's private choice to hire whom he pleased affected the
employee's private choice whether to join a union could not justify the
exercise of public power to protect the employee's choice. Otherwise it
wpuld have reversed the temporal orientation that posited that all such
choices had their source in private, individual intent, not in public con-'
text. Analogously, the fact that all contractual consent was influenced by
the distribution of wealth was not a basis for the .exercise of public power
129. See generally S. WILLISTON, supra note 114, at 727-71. The effect of the narrow and categorical duress doctrine' conversely ~as, to represent ordinary contradual relations as products of free
will, in much the same way as the delineated' categories of coercion in rape law represent ordinary
sexual relations as consensual. See supra text accompanying notes 61-64.
130. See generally S. WILLISTON, supra note 114, at 57-147. Parties deemed incompetent
included minors, married women, lunatics, drunken persons, and convicts. As with duress doctrine
presumptions, the limited exceptions for those deemed unable to exercise the rational free will placed
other parties at the norm, where contracts were presumed to be the result of rational free will.
131.
169
u.s. 366 (1897).
480

1985]
1213
so long as the distribution of wealth could be seen as originating in private rather than social choices.
The spatial metaphor, which provided the available categories for
representation, and the temporal metaphor, which ordered the relationship between the categories, were unstated rules of construction for the
representation of social life in liberty of contract legal discourse. When a
judge approached a new area, his perception was mediated by these representational metaphors so that, in a sense, the area already was constructed before the judge approached it. The judge already knew how to
organize perception and representation of different regions of social life.
He did not have to make "subjective" judgments or "ideological" choices
or ignore the "reality" of the social relations. The representational language constructed reality itself. 132 The integration of the spatial and
temporal metaphors into the texture of the legal discourse provided a
source of confidence for legal actors. The existence of the metaphors in
one area confirmed their reality for each other area of law. Each legal
relationship--between individual and government, contract and tort, free
will and coercion, competency and incompetency, negligence and strict
liability, state power and federal power-was analogous to each. of the
other legal relationships since each was organized around the same metaphoric categorization. The relation of the individual to the government
in constitutional law was premised on the same considerations as the
determination of coercion or duress in common contracts. Legislative
power to regulate was supplementary to the basic private nature of social
relations. Analogously, imposition of tort duties was essentially supple~e~ta~ to the presumption of the primacy of contracts. Finally, the
d1stmct10n between negligence and strict liability standards of care mirrored the distinction between free will and duress in contracts and
between public and private interests at the constitutional level.
This representational language thus served to distinguish legal language from political language within the liberty of contract era. Law was
not political because it was not ideological-it contained no bias toward
any particular societal group. Legal decisions flowed rationally once the
particular spatial and temporal metaphors were imbedded in the representational discourse. The right to contract, as the courts continually
emphasized, protected the free will of both employers and employees.
And, as the Coppage opinion makes clear, the judges were aware of the
dangers of formalist interpretation. But they were convinced that they
were in touch with 'the true meaning of the social relations with which
they dealt, the truth about whether coercion or free will existed in particular instances.
132.
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[Vol. 73:ll51
The point of explicating this metaphorical discourse is to demonstrate that the judges' assertion of access to the determinate and neutral
meaniQg of social events actually rested on the institution.ali2;ation of
contingent and socially created metaphors. These metaphors constructed the "reality" that within the legal discourse was supposed to
exist out there, in social relations themselves. This reification of repre&entational practice denied the manner in which legal discourse actually
constructed the world it purported to represent. 133
The purity of legal representational practice rested on the projection
of a pure source for that practice, an individual self-present at the
moment of contracting, free from external influences. This self-present
individual provided the representational category through which dramatically different social experiences-buying groceries, joining a union,
obtaining a job, forming a government, investing in futures contractsappeared "[i]n principle" 134 the same. The term "contract" related these
various experiences through their essential similarity, the immediate selfpresence of the contracting party. And the form of association referred
to as "contract," while metaphoric in that it grouped different experiences together and asserted they were alike, was itself not merely metaphoric. In a significant sense the form of association was "real" in that it
was grounded in the identical self-presence of the individual that characterized all such experience. 13 s
In order to appreciate the metaphysical infrastructure of the liberty
of contract consciousness, it is useful at this point to see that the legal
representational language projected a particular relationship between the
more general representational metaphors of subjectivity and objectivity.
Each concept associated with the "private" realm-the self, the individ133. This social construction of reality proceeded on much the same basis as a literary interpretation that focuses on the intent of an author, or a linguistic theory that is organized by a conception
of the adequation of signifier to signified. In each case, the representational practice embodies the
"metaphysics of presence" described above. For the representation of social relations in the liberty
of contract era to be seen as legal rather than political, rational rather than poetic, and neutral rather
than ideological, representational practice had to purport merely to re-present aspects of social reality that were self-present and not merely the result of particular metaphors for representing and
communicating about social life. The source of this self-presence in the liberty of contract era was
projected as the private realm of free will, in which the individual was imagined to exist prior to any
social context as the source for social contexts generally. This stable source provided a ground from
which to identify presence and absence--the qualitative differences between realms of public and
private, free will and duress, and the like.
134. Adkins v. Children's Hosp., 261 U.S. 525, 558 (1923), overruled, West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 400 (1937).
135. Thus, while contract law abstracted from the particularities of various social experiences so
that, doctrinally, they were all the same, as long as there was an offer and acceptance of terms
between competent parties, see M. HoRWITZ, supra note 78, at 262-65, this abstraction need not
have been viewed as a formalist suppression of the "reality" of the social relations. Instead, it rested
on a particular metaphysical infrastructure for which the most "real" aspects were the identity ofth'~;:,
contracting subject and the contractual form of association across contexts.
i
1
;
Critical
482
1985]
1215
ual, presence, free will, contract, negligence, and the state---correlated

with the subjective, internal side of each dichotomy in which it was
found. Each concept associated with the "public" side of the dichotomies-the other, society, absence, coercion, public space; tort, strict liability, and the federal government-correlated with objectivity and
externality. Thus, vis-a-vis the self, the other is objective; vis-a-vis eontracts, tort is objective, and so on. Each term associated with the private
realm suggested subjectivity in the sense of internality, of self-presence
uncontaminated by external influence, of self-direction unregulated by
social relations. Each term associated with the public side suggested
objectivity in the sense of externality, of outside influences restraining the
free subject. The priority of the subjective side in liberty of contract representational practice made each objective term seem essentially supplementary to the subjective term. The objective term appeared to add on
to the already self-contained subject without being contained in the subjective term itself.
This division of the conceptual categories along the lines of subject
and object suggests more general metaphysical roots of the discourse.
The relation between man and nature and mind and body mirrored the
relation between private and public as it reproduced the general subject/
object metaphor. Man was subjective and nature represented the objective limitations of the social world. The mind was subjective and the
body was objective, a part of the natural, material world and thus subject
to restraint. Restraint and coercion in oontract doctrine thus seemed
analogous to the natural limits on social freedom, or to the subordination
of the physical self to the material world. This infrastructure of dichotomies provided the sense for the manner in which the individual could be
prior to social relations and therefore presumptively free, while at the
same time subject to objective limitations to his exercise of will. Just as
nature provided an outside limit to the social world but was not itself
implicated in the core of social relations, and just as the body provided
an outside limit to the mind's free choice without itself constituting
choice, the individual's self-presence was limited by objective constraint.
But such limits were at the margins. They were not implicated in the
private sphere itself.
The qualitative distinctions between the subjective and objective
realms, together with the temporal priority of the subjective realm,
implied a belief in "transcendental subjectivity." The subject was
believed to exist prior to social context and therefore was not constituted
by context but instead was.the source and origin of context. 136 Given the
vision of the individual as a transcendental subject, every social relation
136. The subject was transcendental in this sense insofar as the subject transcended context and
accordingly was unaffected by it.
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[Vol. 73:1151
was translated as a creation of individuals, who were free to join or not to

join the social relation. This perspective on the relation b~tween soc:i.~l
actors and their relationships gave sell$e to the analogtes drawn m
Coppage, for example, between joitling a union and agree~ng to co~t.ract
terms with an employer. Earlier nineteenth-century practtce had dtvtdro
up legal categories according to the subject matter of the relation (for
example, master/servant, landlord/tenant, bailor/bailee). Each relation
was conceived to carry substantive rights and obligations. In con~rast,
each relation in the liberty of contract era was conceived as essentially
the same, unified around contract as a universal form ot: social relation.
Social relations were supposed to flow from the subject. rather than to
preexist the subject as a social context with pr~~t content. The _vision of
the transcendental subject was accordingly a vtston of consumptton. The
individual was seen to choose social relatiorts as he chose products in a
grocery store-each social relation, while ~ro~~ded in s~bjectiv~ inte~t,
was qualitatively different from that subject1Vlty. Soctal relatt~ns_h~ps
appeared objective, existing outside of and independent from the md1Vldual, to be consumed. 137
The universalizing aspects of the metaphoric structure of liberty of
contract discourse reflect the formalism of the liberty of contract discourse. At first glance, the metaphor of the individual contractor as the
source and origin of social context seems to establish social causation and
agency at: an extremely local and particular level, in ~he ~riv_ate a~d
unique will of visible social actors. The sou~ces ~ft~e.soctal relatt~nshtps
in society were individuals close at hand, the mdtvtduals carrymg out
those relations, rather than the distant, external forces of "the economy,"
or the "subconscious" structures of individual psychology, or a socialization process-sources attributed by twentieth-century explanatory structures. 138 But the grounding of representational practice in the metaphor
of the transcendental subject actually generalized and universalized the
attribution of meaning to social relations as it centralized the finding of
intent and free will. Localization required the effacement of external
influence. This effacement of externality tended to create the opposite of
localization-a universal subject purged of situatedness in place and
time.
The positing of the subject as transcendental-as the source of the
social relations unaffected by particular context-was consistent with a
137. See Lukacs, Reification in the Consciousness of the Proletariat, in ll1STORY AND CLASS
CONSCIOUSNESS: STUDIES IN MARXIST DIALECTICS (R. Livingstone trans. 197\); H. MARCUSE,
ONE-DIMENSIONAL MAN: STUDIES IN THE IDEOLOGY OF ADVANCED INDUSTRIAL SociETY
(1964).
138. In such structuralisms, the individual subject is seen as the effect rather than the source of
larger structures of social life. See generally THE STRUCTURALISTS: FROM MARX TO LEVI
STRAUSS (R. de George & F. de George eds. 1972). See supra notes 9, 12 & 34.
'
1
J
1
484
1985]
. 139. See S. WILLISTON, supra note 114, at 307-20. Professor Horwitz explains that the objective. theory of contracts emerged from the will theory as a result of a desire for predictability in
deahngs among the commercial classes brought about by the emergence of uniform national mar~ets. M. HORWITZ, supra note 78, at 194-201. This, in turn, left a glaring contradiction in the legal
tdeol~gy.. On the one hanq, substantive decisions at both the common and constitutional law levels
wer~ justlfi~ as ~ ?n t~e ratification of the subjective free will of the individual. This provided
the tdeologtcal rattonalJZatlon for abandoning notions of just price and objective value. But on the
other hand, the manner of.~ning the subjective intent within the terms of objective contract
~heory. was external to subjective mtent and appeared more like objective regulation. Indeed, this
mconstste?cy was one of the p~mary means utilized by the legal realists to debunk this legal ideology. See mfra text accompanymg notes 142-99.
One way to explain the contradiction would be to see constitutional law and the common law as
out-of-sy~c. The <:<>n.stitutio_nal _Ji~rty of contract practice assumed that at common Jaw the judiciary was ~l.mp.ly raufymg subjective mtent, but the objective theory of contracts was regulative rather
than faethtatlve.
II
I think the relationship was more subtle than this theory of contradiction suggests. That is, I
SCC: the congruenc~ ~tween the objective contracts theory and the notion that subjective free will
gutded ~th constitutional and common law practice as explicable from within the terms of the
metaphystca! st.~cture of .leg~l. ideology. Within the reigning metaphysics of the relationship
betwee~ subjectlvlt~ and ?bJ~tl~ty, there was no contradiction at all. The objective theory of contracts dtd not restr~m ~Ubjectlve m~e_nt because objective manifestations of meaning were subjectively
~hosen .by the part1~ hke commodttles and were ultimately rooted in subjective choices, like custom
m neg!tgence analysts, see supra note I 19, or the inequality of bargaining context in the Coppage
analysts, see supra text accompanying note 122.
I
II
,,
lnde~, there is a deep link between the objective theory of contract construction, the negligence
,,
I
I
st~ndard m tort, narrowly-drawn duress and incompetency doctrines, and the notion that law
existed to ~rot~! subjective free will by delineating private and public spheres. If individual free will
was '.he cntenon, .one would have expected an individualized inquiry into whether free will was
ex.ercsed or capacity existed. The will of some individuals-for example, thin-skulled plaintiffsmtght w.ell be overborne by conduct falling short of that proscribed in duress doctrines. Similarly,
some mmors, mo.re mature than others, might well have the functional capacity to contract. In
short, all t~e baste elements of contract doctrine should conceivably have been individualized in
order. to sausfy the subjectivist premi~ of contract practice. Similarly, the general negligence standard 10 ton could be seen to be regulative rather than facilitative to the extent it imposed nonconsen~ua! dut~ throug~ the external, customary notions of the reasonable man. Here also, an
1
_ndtvl~uahzed P~~tlce: focused on the capabilities of the particular defendant, might seem more in
h~e wuh the legtlmaung premise that private law was concerned with facilitating individual free
Will.
.
10
..
;I
1217
belief that the forms through which individuals related were essentially
the ~e, regardless of context. A contract was a contract, whether for
groce~e.s, futures, or employment, because it was a universal form of
assocrat10n correlated with .the transcendental subjectivity of the individual: Similarly, the meaning of the words of the contract and the determina~o~ of wh~ther the contract was consensual also were amenable to an
objectrve, umversal practice. Accordingly, the objective theory of contractual construction, which generally forbade contextual evidence of
contractual intent, could be viewed within the liberty of contract meta~ho.rs a.s consistent with the notion that the judiciary was realizing subJective mtent rather than imposing tort-like obligations on parties who
had used language which might induce reliance. 139 The metaphor of
,I
485
Bu~ ~uch an individualized practice would have contradicted the notions of equality contained
the VISion of the rule of law. Equity and discretion would have predominated. An individualized
1218
[Vol. 73:1151
qualitative differences between the subject and the objective context,

inclutling tlie available forms of communication, suggested that the sub~
jective intent was not constrained or regulated by the necessity o( using
language that carried "formal" and objective legal meaning separate
from the meaning intended by the individual.. The subject chose the language as a neutral medium for communicating intent. The objective
manifestations of intent in contractual language could thus be read in a
rule-like, nortdiscretionary fashion by the judges since the manifestations
of intent chad objective, determinate meaning, just as the gun to the head
had objective, determinate meaning in the determination whe~her the
contract was the result of free will. Objective manifestations of intent
had "positive" meaning; they were noncontextual because they were
nonrelational-meaning filled up the tenhs with content and thus context was simply irrelevmt. 140 Words directly referred to things "out
there" regardless of context, just as the subject was the same regardless
of social context, and contract as a form of association was essentially the
same regardless of context. Since the subject preceded and created objective structures, he was not restrained by the necessity to communicate
contractual intent in objective manifestations. Instead, the subject chose
objective manifestations of meaning, just as the subject chose forms of
relations.
There appears to be no source except the metaphysical ass~mptions
themselves for the particular representation of social life created by the
liberty of contract era legal actors. It is not as if the spatial and temporal
metaphors were established as valid or useful in one area and thereby
practice would have belied the image of law as the mediating form between self and other, between
private and public. The rule form, reflected in the categorical structure of duress and incompetency
doctrines and in the objective approach to contractual interpretation, was more deeply intertwined
with the metaphysical representation of social life than the attribution of contradiction in the liberty
of contract discourse suggests. In order for the collectivity, here judges as state officials, to represent the subjective free will of contracting parties, the judicial practice could not be discretionary;
it had to be contained jn a rule structure. Delineated rules were necessary within the terms of the
ideology in order to ensure free will. The individual could choose on the basis of terms known in
.advance and thus consent to any imposition of public enforcement power. See Kennedy, Farm and
Substance, supra note 71 (discussing the relationship between. the rule form and the ideology of
individualism).
The "contradiction" between the objective theory of contracts and the subjectivist premises of
legitimacy was not perceived as such within the terms of the liberty of contract ideology since the socalled objective meaning was subjectively chosen. In this respect, the objective theory of conracts
rested on a vision of consent similar to that which was used in tons where the negligence standard
was seen to be rooted in choice rather than external regulation. Objectivity, whether the reasonable
man standard in ton or contractual interpretation, was" rule-like, knowable in advance, and ultimately derivati'le of subjective consent. And just as categorization of duress and competency doctrines was not regulative to the extent it reflected things "out there," so the objective theory of
interpretation was conceived to reflect meanings "out there," preexisting judicial practice.
140. See supra text accompanying notes 6-27. The indeterminacy of the process of negative
differentiation is imagined to be halted by the attribution of positive content to words.
'
486
487
1985]
1219
assumed to be valid analogies for the interpretation and representation of

other areas of social life. Nor does it appear that one area was primary,
and the other areas followed in the construction of the representational
scheme. The integration of the representational language .did not flow
from, say, a decision to achieve a particular result with respect to constitutional questions or with respect to the relationship between labor and
capital. Rather, it appears that the metaphors were part of a metaphysical root system that had no particular origin. No part of the discourse
demonstra.ted that it was positive and freestanding without the rest of the
representational practice to orient and confirm it. Each analogy pointed
to another, which itself pointed to another.
Thus, while the metaphoric representatjon of the social world was
consistent with the broad outlines of the political theory of Lockean liberalism, it would completely miss the mark to simply describe the period
as an attempt to-institut~ classical liberal political theory. It is more
accurate to say classical social contract theory itself depended on the
metaphoric root system described above. 141 The liberty of contract
approach was not a deduction from the premises of a political theory, but
rather was an embedded representational structure for perceiving and
communicating about the world.
141. Explaining libeny of contract discourse as simply an attempt to institute cla.~sical liberal
political theory fails to explain why such a political theory would be persuasive visit.vis its competi
tors, or how the abstract terms of such a political theory could be applied in more concrete settings.
Indeed, the abstract and general requirements of a }>Olitical theory could not be applied in
concrete situations without such conventions of application providing the means to categorize public
and private, free will and coercion, etc. My conclusion that legal knowledge about the world was
organized around the public/private representational metaphor is not meant to suggest that the
terms were in some sense operative, as if the words themselves denoted specific realms of social life
or kinds of social relations. As the discussion of language suggested, see supra Pan I, Section A,
there is nothing within the words of a language that determines what is signlied by them. The
distinction between public and private was a legal 'construction, not a reflection of some code preexisting the legal practice. Rather than explicate a determinate structure which animated the dis
course. I have offered what may be best described as a table of contents or an indexing system.
However described, the framework I have proposed is meant only to suggest the manner in which
the general organizational forms of representational practice influenced the conception of what
social life was about. There are.- of course, many loose ends that escape this panicular metaphoric
structure and point to other ways to read the libeny of contract texts.
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v
THE METAPHORS OF SOCIAL REIFICA TION
To this point, the discussion of the metaphysical infrastructure of

legal and other liberal representati?nal pr~cti~es ~as .proce~ded ~~r~el~
with the assertion that representations of soc1al hfe m ratiOnal diSCIplines," such as lf!w, economics, or sociology, are actually co~tingent and
political interpretations. The argument has been that the cla1ms of these
discourses to knowledge or rationality and to superiority pver "mere"
myth, opinion, or superstition are false becaus~ all such d.is~ourses .themsefves depend upon metaphors and projectiOns of ongmal umty or
source. The discourses of law, reason, and knowledge are the myths of a
particular historical time and of a ~articu~ar place in the geography of
social struggle and differentiation. Accordmgly, the argu~ent has gone,
the division of discourses according to the reason/passiOn, or ~nowl-
1985]
489
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edge/power, or law/politics differentiations is actually an act of power

through which other ways or understanding and experiencing the world
are marginalized as "personal," "ideologiCal," "emotional," or "primitive." The authority of the discourses of "reason" depends on the subjugation of other knowledges of the world as inferior. The authority of law
and reason are actually effects of a contingent political struggle whose
temporary truce line has become frozen through a retranslation of social
struggle into individual choice or objective necessity.
The stark nature of the politics of this translation can be captured by
comparing liberty of contract's representation of working life and the
union movement as simple products of individual consumptive decisions
with tlie lived struggles of Eugene Debs and the railroad workers of the
1890's. The politics of translation is no less obvious when one compares
the discourse of productive efficiency underlying rationalizations for the
division of labor or the private property/free contract regimes with the
barroom conversations of the factory workers who are the objectifications of the discourse. In other words, the discourse of reason and liberal
authority are not simply one retranslation among many. Rather, they
reflect collective motivations to reproduce existing forms of power and
collective choices to side with institutionalized authority over social
resistance. But the dimensions of power are no less real when there is no
obvious resistance, when there is no Brotherhood of Railway Workers
demonstrating the contingency of the reigning interpretation of social
life. This power of the metaphysic of authority, which is all the more
successful to the extent that it appears as non-power, will be considered
in this Section.
The assertion that the "disciplines" of rationality are contingent
interpretations of social life may suggest that they are somehow separate
from the actual conduct of social life. It may seem as if there could be
two moments, one the experience of social life, the other the representation of social life according to a particular language, to a particular way
of representing similarity and difference, the Same and the Other. From
such a perspective, the "problem of language," the inevitable mediation
of the "present" with the grid of representational structure, would be
limited to "language," to attempts to reproduce and communicate about
social life through linguistic signs.
I have tried to suggest, however, a conception of language broader
than the linguistic notion. In this conception, language is itself only a
metaphor for social processes of distributing significance. The refusal to
limit "language" (or "negation" or "differentiation") is motivated by an
interpretation of social life opposed to the metaphysics of presence. The
denial that the "problem of language" can be limited to something called
"representation" that could exist at a separate and later moment from
1276
[Vol. 73:1151
"the present" is a denial that we are ever in such a "present" divorced

from absent traces of social construction. 111 other words, the argument
that we are always in language and that language is always interpretation
in the sense of a contingent and social process of ascribing meaning to
events cannot be limited to the sense claimed by the official qiscourses of
knowledge and authority. Language also constitu_tes the sense of e~peri
ence itself even as we create the language for making sense of expenence.
Accordin~ly, the metaphors of authority discussed to this point cannot
simply be limited to some "representational" or "ideological" level.
' They are also the metaphors of the authority of good sense constituting
the existential feel of everyday life.
The spatial representation of social ~e according to the sub~ect/
object metaphor, and the temporal projection of a ~lace of _unm~tated
presence, appear in the phenomenology of ~v~ryday life ~ altenatt?n. In
the experience of social alienation, the contmgency of soctal rol~ ts suppressed as they are perceived and repres~nted as existing separate fr?m
the subjects who create and reproduce them. Thus, th~ extent to whic~.
the "present" is socially constituted and therefore subject. to. chang~ IS
denied as socially created things are taken, through the subject/obJect
metaphor and the metaphysic~ of presence, as objects existing apart .from
subjects. We then feel alien in the social relations we have created a~ we
imagine them to be ruled by forces external and autonomous from
ourselves. 270
The existential ramifications of the subject/object ~ichotomization
may be summarized at the abstract level as follows. 'The subject/object
representational scheme entails a general exteriorization of all "otherness." Exteriorization occurs as objectivity is seen as independent of the
subject. This exteriorization is manifested in a di~tinction betwe~n Man,
an intentional being, and Nature, the given, arbitrary, and umntended
otherness. Nature (the object without consciousness) is exteriorized as
external and unrelated to Man (the subject possessing consciousness);
This exteriorization of Nature is rooted in the perception that Man does
not see himself in Nature. Nature exists as an objec~ive necessity standing against the freedom. of the subject and possessing la'":s of it~ own,
independent of Man's will and to which Man must subordmate htmself.
The distinction between Man and Nature is reproduced within the subject/object representation~! scheme in the dichotomization be~ween. mind
and body. The body lives in the sensuous, natural world ~n~ ts su~Ject.to
the demands of natural laws existing independent of Man s mtenttonahty
and over which he has no control. The body is irrational in the same way
that Nature is irrational. This representational scheme is further
270. This discussion is influenced by Gabel, Reification in Legal Reasoning, 3 Research L. &.
Soc. 25 (1980); J. SARTRE, THE CRITIQUE OF DIALECTICAL REASONING, supra note 6.
490
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I
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I
I
I
I
I
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1277
reflected in the dichotomizations betwee

.
mind, and desire, associated with th b dn reason, assoctated with the
.
e o y.
Thts exteriorization of the world ou .d
.
tst ~ consctou~ness ~ontinues
with respect to the other "ob'ects"
"subjects " who l'k
~
of consciOusness, tncludmg other
, t e nature, are presented t

.
.
nomenal states, as objects-to-cons .
o co~sctOusness tn their phethe self. The self does not see .tsc~o~ness outstde and independent of
other is an other, an object rese~ti: f tn the other p~eci~ely because the
the freedom of the self. Sin~ the ot:e::e t~t of ObJec.ttve constraint to
ness, it is represented in conscio
. PP h as an object to consciousdefined by the social conventionsU:;~ tn p eno~enal, formal categories
the other is never immediately " r
e ~rceptton. of the other. That is,
the self in subject/obiect dichotpo ~entt. to. consciousness the way that
.
~
mtza ton ts taken to b
ed'
present tn self-consciousness Whil
If.
.
. e tmm tate1Y
d
e se -consctousness ts tak
~n pnor to consciousness of the other (at least in i

. en as pnvate
ttonal modes), consciousness of the othe .
.
dealtst representaresentational categories the oth . r IS medtated through public rep'
er ts re-presented rather than present.
Hence the oth
'
er appears as parent st d t
employee, colleague, lover, husband, w'ife ~teen Th~~c~ler, . frien.d, b~ss,
of the other is reduced in
.
'
u extstenttal bemg
self in the grammar of soc:n:~:~;~~s to the other's role vis-a-vis the
The priority of the self befor th
h
the subject/object dichoto

. e e ot. er tn t?eahst manifestations of
which can be reversed by s : Its aan Ia~bttrary tnte~J'r~tative construct
ness of th 0 th
p ~ PP Ytng the descnptton of consciouser to self-consctousness Th
e
reversed by emphasizing th
. . . e temporal order can be
.
e manner tn whtch a d' d 1
sctousn:ess is mediated throu h cate . .
~ ~~ tvt ua s self-conpractice. An individual's self-~nderst=~~es ~n .extstmg repr~s~ntational
roles and relations Just as
. d. 'd tnlg ts tn terms of extstmg social
an tn tvt ua 's e
~~~r;: :~;~~~~rp~~~xisting classificatio~s. Fo:r::~~=. ~he ~~~;,~e;:l~~
is created as a s;cial b:~~~nan ~bstrac:to~ a~d objectification as the self

for whom the self a
rectproca re attOn to the gaze of the other,
ject/object dichoto~::a~:~~a~: othe~ The. ot~er represents in the subself in the world accordin t ht to. t e s~bject s freedom to create herself, in the context of an ob~ ~fi ~ tntentton beca~se the other sees the
tion system. The other tu~~ct~ e l;?rld reflec~ed tn the social significaintemalizes the other's per t. e se tnto an Object for another. The self
cep ton as self-idenft
constitute the only available r fi
.
t. y, smce external referents
~ erents wtth ~ht~h to. represent the self to
the self. Accordin 1 t
vate" sphere of thg y hb~ publtc sys.tem of stgmficatton invades the "prie su ~ect, reverstng the id r t d
. .
sugges.ting that the self is constituted by the ot~a IS ~rb er of pn~nty by
.
er,an y externality generally tn the very moment of If
se - consciOusness. Thus there is no private
1278
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[Vol. 73:1151
sphere or moment of immediate self-presence; self-consciousness is

already inscribed with the public representational system.
The public system of signification contains not only categories for
perception and self-percepti6n, but also codes for behavior. Each of the
social categories in which the other and the self are represented to consciousness carries the baggage of formal, specified limits for the given
relationship. A parent, child, boss, employee, etc., act in ways defined by
the social category. The social categories and the boundaries for social
relationships associated with them in tum demand the objectification of
the self in social relations. The subject is constrained to fit her own
behavior into the bounded categories for social relationships in order to
have social relationships.
This abstract description of the process by which the social world is
perceived as alien to the subject may be clarified by consideration of more
concrete social relations. We come into society faced with a preexisting
grammar of social relations which defines the various social hierarchies.
The existing forms of relations between parents and children, men and
women, managers or owners and workers, teachers and students, etc.,
"reign" in the social consciousness as normal modes of relations which
exert a force over the relations' current embodiment. These social relations are each marked by a dichotomous structure of representation
whereby one side of the relation is privileged over the other as a sovereign who enjoys subjectivity over the realm of the relationship. This subjectivity, however, is only apparant as a power when the relation is
viewed from the inside of the relation or from within the subject/object
mode of symbolization. From an external view, the mode of relation
itself appears to be a mediating subject which transforms both the sovereign of the relationship (the parent, man, manager, teacher) and the
other (those who are subject to the sovereign) into its objects, to be
ordered and organized according to the relation's dynamic.
For example, students enter a classroom and assume a certain mode
of behavior; they act like "students". The teacher enters the classroom
ami assumes the role of "teacher"; she stands in front of the classroom
and teaches the students. Viewed internally, it would appeAr that the
teacher is exercising a sovereign role, determining the nature of the classroom relations by acts of her subjective will. And in fact, in this relation,
the teacher is in a favored position in the social grammar as the recognized subject of the relationship. But to end the analysis here would be
incomplete, for the teacher is also constrained by her role as teacher and
therefore is not actually a sovereign. Her sovereignty is only formal, subject to the mediating sovereignty of the teach~r/student relation itself.
This relation is a historical social product which preexists the appearance
of both the teacher and the students in the particular classroom. As
492
Critical
1985]
Critical
1279
such, the teacher/student roles appear to particular students and teache~s as something outside of themselves and not intended by them as indivtd~als. I~ ~hort,_the roles appear as otherness, as objective facts within
whtch thetr mtenttonality is to be exercised. The roles, consisting of various norms of appropriate behavior for each of the actors, form a structure or grammar for the relations which transcends any particular acting
out of the roles.
!h~ students perceive themselves as students of the teacher and have

mtenonzed the "normal" (as both regular and prescriptive) behavior
expected of them as students. Without having experienced the immediate, particular instance of the teacher/student relation, the students
know that ~hey ?Iu~t abstrac_t from their full existential beings and present a certam Objectdied verston of themselves which matches the social
conventions of how students act. The teacher is under a similar constraint. Generally stated, the social grammar dictates that the form of
the relationship be defined by rationality rather than desire, so that intimacy, empathy, anger, and the other manifestations of desire are to be
repressed according to the demands of the public representational
scheme.
:I
)I
I
I
'I
The categorical structures of social relations thereby come to stand

bet~een the ~articipa~~ in the social setting as an invisible distancing
devtce, ensunng the hmtts of the relations. A student doesn't speak to
the teacher as he would to another student since the teacher is the other
the exterior in which the student does not see himself. Instead, the stu~
dent grants the teacher the deference signified by the structure of the
r~lation, a !'rocess of subordination which continues beyond any functional reqUirements for the transmission of the knowledge purportedly
taught by the teacher to the student. The social conventions of the
tea~her/student relation, a historical product created by past social
actwn, come t? be seen as an objective thing, as artless and natural, since
they ap~ear Wtthout the imprimatur of any particular subject's intention.
The basts of the social conventions as a social construction is collectively
forgot~en~ and thus t~e ~ossibilities for social transformation repressed as
the_ retgnmg categon~twns_ for social life achieve an anesthetic grip on
soctal_ actors. The restgnatwn to the status quo, in short, is not even
percetved as a de~ision ~he~ the status quo appears as an objective fact
rather than a soctal, subjective construction.
. The ~mn:ercial world reveals a similar objectification of institution~hzed soctal hterarc~ies. For ~xample, the typical working relationship
m a r~staurant conststs of a hterarchy running from the manager, the

soveret~n of the sphere, to the dishwasher or busboy, the most
subo_rdmate. Each. pe~on in the hierarchy assumes his role in the productiOn process, wtth tts appended social significance. The manager is
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"in charge" of the others by virtue of his formal autho~ty, which is sig~i
fied at various levels. The manager, for instance, typtcally wears a sht~
d tie the attire of social respectability which signifies that deference ts
:
The others wear uniforms or functional clothing.
ager's clothing serves to distinguish him as a subj~t in connection w~th
the customers, who also appear in respectable clothmg when they arnve
to be served.
The manager's status in the hierarchy is further signified by the fact
that he receives a salary rather than an hourly wage.
salary su~ges~s
subjectivity according to the ideology of freely negotiated pay, whtch m
turn implies qualitative differences between manage?. By c~ntra~t, the
pay of dishwashers and busboys depends on the stnct qu~nt~fication of
the timeclock; it is not negotiated and is based upon quantttativ~ asp~ts
rather than the quality of the person's work. ("A _dishwa~he~ ~~ paJd x
per hour.") The manager is further distinguis~ed m the stgntfymg system by his possession of private work space, m contrast to the others,
who work in public view of each other or the customers.
The waiters and waitresses are subject both to the sovereignty of the
manager and the sovereignty of the customers. T~ th_e _custome_rs, th~y
appear as objects subordinate to the customer's subjectlVlty.. The_tr soc~al
significance is indicated by their u~i~orms which _sugges~ the~ u_mformtty
and therefore their interchangeabthty. The wrutresses objecttve status
vis-a-vis the customer is confirmed by the nature of their uniforms, ~hich
typically invite the customer to view the waitr~ ~ a ~ex~al object, _a
sterile nurse-like figure, or a little girl. The watters objecttve status ts
ordinarily manifest in clothing by an exaggeration of various forms of
respectable clothing (tuxedo-like, suggesting the butler) or the costume of
some mythic figure (cowboy clothing).
The subordination is further reflected in the colloquial "where is our
waiter/waitress," the symbolic representation of a proprietary relationship. The proprietary aspect of the relationship exten_ds to _the manner of
pay. The waiter/waitress typically depends on the dtscretwn of the customer for the tip. The waiter/waitress must be "nice" ~o the _custom_er
according to the social conventions as to what being a m_ce watter/wa~t
ress means. This ordinarily means maintaining a subordmate role whtle
being "personable," that is, acting /i~e a person _(rat_her than mere~y carrying out the functional duties of takmg a~d ~e~tvenng orders) whtle not
presuming to be subjects equal to the subjecttvtty of the custome_r.
Of course, the customer's subjectivity is only apparent. Ltke the
teacher's subjectivity, it is only sovereign from within the context of t~e
relation between the customer and the waiter/waitress. The c~stomer ts
also constrained by the grammar of the social roles to act hke a c~s
tomer. He is reciprocally objectified by the waiter/waitress who sees htm
ord~r.
~e m~
!he
494
1985]
Critical
1281
in tel1I_ls of his function in the social system of signification and who

ac~rdmgl.y abst~acts from his total being to "size him up" and determm~ the l~kely stze of the tip and possible ways to adjust the manner of
servtce to mcrease the tip.
Like ~he teacher/student hierarchy, the restaurant hierarchies reveal
~he soveretgnty of the structures of relations. The social grammar preexIsts t~e a~peara~ce of any particular manager, waitress, or dishwasher as
an obJective soctal product to which the various social actors must conform by a proce~s of abstra~tion, so that they "play their part" according
to the soctal sen pt.. The pomt of all the signalling devices, such as attire
or manner ?f pay, 1s that the social actors are not to express themselves
~hen ~a~mg out the role, but instead are to express the role itself. The
mtent10nahty of the social actors must occur within the constraints of the
rol~~ so t~at t~ere may be "friendly" or "bossy" managers, "personable"
or s~rly Watters, etc. From within the subject/object mode of represen~tiOn, however,. the ~ork. categories themselves are perceived as
outstde t.he realm ~f mtenttonahty, as just the way things naturally are in
the particular settmg. The split between management and ownership
furth~~ accentua.t~ the objectivity of the structure as given from "out
~hen:, a~ a post.tl~e term rather than as the relational product of the
mtet10nahty of vtstble social actors.
.Moreover, the notion of playing a part in the public system of signification of the work world extends into, and comes to constitute the
"priva~e" world after work as the social actors begin to identify themsel~es m te~s of th~ public representational system. Accordingly, in the
soctal relatiOns outstde the restaurant, it is not unusual for a waitress for
example, to use the work hierarchy when choosing dating partners, 'and
therefore to see the manager as more desirable than the dishwasher and
convers~ly for the dishwasher to view himself as unworthy of a waitress
above him on the hierarchical order.
.These pat~erns of self-objectification through the grammar of social
r~lat10ns hold m other areas. In corporate and governmental bureaucracies, t?e message that the worker is filling rather than creating the role is
estabhsh~d by ~anuals which seek to impose uniformity in the way that
the role.Is earned out. In industrial production, division oflabor on the
production .line transmits the same social meaning. The worker is
p~esented With ~he demands of a machine to which he must subordinate
?Imself and which appears to exist prior to and independent of the subJect. In. relations between men and women, the gender-based social
expe~tat10ns form the structure which acts as a social power in particular
relatiOns.
. In sum, the hierarchies of social relations are represented in consciousness through a language which serves to order perception of and
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communication within the realm of social relations, and which establishes the categories through which the relation with the social other is
mediated. This latlguage is expressed by physical structures, such as the
assembly line or the arrangement of seats in a classroom, and by "interior architecture" or materialized social relations, which establish the
structural homology of. patterns of dress and communication with status
in the hierarchies. As a language, these aspects of social ideology establish in advance of immediate experience the categories in which the experience will be translated, and the boundaries for the possibilities of
particular relations. Thus, just as the assembly line orders social relations in the factory according to stations ort the machine, objectified
social relations, presenting themselves from the viewpoint of subject/
object dichotomization as divorced from the intentionality of social
actors and therefore as alien objects to the self, work to order the possibilities for social relations as they become frozen in consciousness. Like
the classroom architecture, the objectified social forms mediate social
relations as social actors view themselves as objects fulfilling the pregiven
role. To the extent that social relations ar.e projected as external to the
self, the self must adapt to the relations, just as Man generally must
adapt to external Nature. The self, therefore, must become an object to
place himself in the external, objective world .
Social roles are taken as objective to the same extent that they are
seen to signify some positive, rather than merely relational, term. The
teacher is socially created as "teacher" only in relation to the way "students" are socially created. There is no posjtive content to the roles
themselves outside of their relational status. From within the subj'ect/
object dichotomization, however, the roles are seen to have positive content, and to exist as objective terms with fixed natures, which foreclose
alternative possibilities for social organization. In short, they are reified.
'Socially created relations between people are perceived as things having a
nature and ruled by unintended laws like objects.- in the natural world .
They are viewed as alien to the self, just as the worker's products within
the capitalist ownership system and the division of labor are viewed as
alien to the worker, since he does not see himself reflected in the objectifi-.
~tions of his labor and comes to see them as having a life of their own, a
"phantom objectivity." 271
The process by which social roles and relations are reified on an
experiential level is analogous to the manner in which they are reified in
interpretive practice. In each instance, language (whether it be linguistic
or the codes of social roles) is effaced in favor of the metaphysics of presence. The contingent, relational and socially created aspects of meaning
271. G.
LUKACS,
Reification and the Consciousness of the Proletariat in HISTORY AND CLASS

Livingstone trans. I971).
CONSCIOUSNESS: STUDIES IN MARXIST DIALECTICS 83 (R.
II
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1283
~re s~ppress~d in f~vor of a determinate signification within which, it is

1magmed, thmgs s1mply are. Things are made to appear autonomous
fro~ any connection to social practices, which mediate meaning and
whiCh hold t~e knowledge that things are not simply present but are cre~ted and. su?Ject to change.. When the language of social roles is experIenced w~thm_ the m~~phy~1cs of presence, its dependence on temporal
an~ sp~ttal_ ddferenttat10n 1s suppressed. Thus, reified social roles lose
the1r h1stoncal roots as the products of contingent social constructions
and appear simply as givens. And the sense that roles exist as manifestations of power in the social geography is suppressed in favor of a view
that the. fo~s of ~ssociation are simply the noncontingent means for
~ccomphshmg particular and necessary social tasks. From this perspective, the lang~.age ?,f ~ocial_roles is projected to have positive content, just
as the word tr~e 1s proJected to have positive content as its socially
produ~d. status IS suppressed. The language of social relations assumes
an objective and transcendental status, acting as the absent third that
m~diates relations between the self and the other, the subject and the
object.
. T~e reification of social roles appears in other regions of institutiOnal hfe as the various subject/object structures of representation come
to form a complex web of relations which contextualize each other. For
exam~le, the _teacher/student relation is only one of many in the school.
Focusmg on JUSt th~t relation reveals the students as apparent objects to
t~e ~eacher as subject. But the teacher/student dichotomy operates
Wlthm the parameters of broader dichotomizations. In a university context, for example, there are within the class of teachers various hierarchical statuses follo~ing along a general subject/object continuum (e.g.,
tenured/untenured), and there are various dichotomizations among the
s~udents the~selves .(e.g., white/black, rich/poor, male/female, attractlv~/un~tt:actlve, northern/southern, normal/nerd), each imbued with
soc~al ~~~mficance. Moreover, the teachers and students form a unity of
subjectivity when compared with others in the university, say maintena?ce workers, _who appear vis-a-vis teachers and students as pure
objects. Companng the teacher/student dichotomization to the intellectuall"_tanual dichotomy reveals that within the teacher/student relation
there IS a greater degree of intersubjective recognition than that which
occurs at the intellectual/manual level. Teachers see themselves in part
~ past student, and thus see themselves in the students, and students see
m teac~ers t~e possibilities of becoming teachers. Each group tends not
~o see Itself m the maintenance workers, so that the typical personal
mterchanges between student and teacher, however circumscribed by the
reification of the roles of teacher and student, will be fuller than
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[Vol. 73:1151
interchanges between teachers and maintenance workers or students and

maintenance workers.
Moreover, it should be noted that the language of social relations is
itself not positive and simply existing; it cannot be captured by a determinate representation of the hierarchies of social life. Thus, to the extent
that the above description implies that we are totally circumscribed by
reigning social structures when we relate to each other, it is misleading,
for there are loose ends that exist as traces of resistance and insurrection
in each of the social regions that have been described.
In the classroom, a lingering sense of the artificiality of the relation
appears in the uneasiness that is felt even when carrying out the particular roles. Occasionally the teacher is not perceived to represent subject
and authority, but rather is constructed by the student as an object of
ridicule. The students may not be perceived as subordinate, but rather
feared to the extent that they constitute the means of self-recognition for
the teacher. In the restaurant, the appreciation of the artificiality of the
relations appears in the form of evasion of work procedures or the episodic sense that everyone in the restaurant is both stuck in the roles and
dramatically tied together by the mutuality of being stuck.
To do something like a "sociology of social roles" by analyzing the
language of social intercourse one must always choose some metaphors
of representation to the exclusion of others. Thus, the extent to which
social life has been cabined out and yet cannot be so reduced is lost. For
example, according to the public/private metaphor as typically applied,
sexuality is private and not public. To the extent that this representation
is internalized by .social actors as an external requirement of social life,
social actors repress their sexuality in one sphere as they repress the
extent to which their sexuality is socially constituted in the other. But
the social language is never total. The public sphere contains traces of
desire-invading in momentary glimpses of the erotics of social life and
then immediately repressed-and the private sphere contains traces of
public .power-gender stereotypes, for example. To the extent that the
representation of social life excludes these traces by claiming to re-present social life "as it is," it simply reproduces as its own representational
metaphors the reific.ations of social life itself. Such representation
ignores the extent to which the feeling of the cold air on the dishwasher's
skin while waiting for a bus after the night shift, and the feeling of the
muck from the bus trays as it is being absorbed into his skin even as
clothes are changed and baths taken, are not "personal" experiences
unrelated to the social relations within the restaurant, but are themselves
constitutive of the reproduction of the restaurant relations. The "meaning" of social roles in the restaurant as relations between subjective and
objective spheres depends on the exclusion of these other traces of, for
!I
-~
498
1985}
1285
example, the a.ll-night bus stop. These margins of experience are consti-
tut~ as ma~gmal to the very extent that the core of social life invites
their repression.
The dialect~cal ~ature of the relationship of social roles and social

actors may. at this.pomt ~e summarized as follows. On the one hand, the
ro~es pr~exist the Immediate experience of social actors. They appear as
O~jects I~ the subject/object mode of symbolization since they appear
~Ithout ln~ks to any subjective intention and as forms in which the particular subjects d~ not see themselves reflected. Yet, on the other hand,
the. forms of relations can only be reproduced by the action of particular
~oci~l actors, and therefore their continued existence depends on subjects
tn history..The role is constituted as a role and reproduced in the very
s~me expenence in which it is presented as a preexisting, given form.
Like ~e ~tructures o~ lan~uage, the social role has no existence apart
from Its I~plementatlon tn concrete experience. Moreover, like language, ~octal roles ~re transformed each time they are performed. They
are subject to the history of the groups fulfilling them and thus have no
transcendental status.
T?e ~istorical dimension of the structure of social relations reveals
.
is subjective both in the sense of its origin in the
Its ~ubjectl~e aspects.
~ocial. cr~~lO~ of relations by past historical actors and in the sense that
Its objeCtlVlty IS ~ontingent and depends upon its being taken as an object
and therefore faithfully recreated like an actor's role.
!t
499
The s.ubjecti~e aspect of the grammar of social roles, however, is lost
I? the sub~ect/object mode of symbolization and the concomitant reifica-
tlon .descnbed above. ~n the subject/object mode of symbolization, the

con.tmgency of the social roles and their dependency on fulfillment by
sub!ects ar~ suppr~ssed th~ough the process by which the givenness of the
social role IS associated Wit~ ~themess and nonintentionality. The object
thus as.sumes .the charactenstics of a sovereign, directing the social actors
accordmg to Its own dynamic.
The ~enial of the contingent, historical, and socially created nature
of the. social structure gran~s pa~icular forms of association autonomy
~nd divorces them from their social construction. The forms of associatiOn b:co~e ~p~osed to the persons whose practice constitutes them as
an obJective hmit to the possibilities forsocial intercourse. The social
~r~mmar th~n acquires an anesthetic grip as it assumes a phantom objectiVIty col.l~ttvely fantasized according to the mode of symbolization to
have positive content. . Because the forms of social relations are objectified as othe~ to the subject, the subject must objectify himself to fit within
the ~nstramts of the perceived natural, objective world, and treat himset~ Instrumentally as a means to deal with the given social reality. The
socially created aspect of forms of association recedes in a process of
1286
[Vol. 73:1151
collective symbolization. 6roup processes are perceived as ruled by

forms of association which have a positive existence separate from the
group's practice and which rule the possibilities for group association.
The rejection of this social reification occurs only at the further risk of
losing even the tenuous group bond accorded by participation in the collective fantasy of reified social life.
Liberal interpretative practice has no category which could comprehend the subject/object nature of the structure of social roles. Liberal
interpretive practice must remain internal to the process of social alienation because its methodological assumptions share with the existential
experience it purports to interpret the grammar of subject/object dichotomization. Moreover, liberal representational practice cannot analyze its
own status because it must apply its own interpretative constructs, the
only ones available, to itself. It accordingly must suppress the subject/
object interpretative construct as a contingent, social, and rhetorical projection and instead view its representational scheme generally as objective and positive, given its independence from any identifiable
intentionality. Thus, the subject/object dichotomy is taken as natural, as
common sense, while the rhetorical bases in the game of analogy (from
"a person is different from a desk" to the social system generally) are
suppressed.
The myth of the transcendental subject thus represents the various
forms of social relations as subjectively intended by the social actors who
participate in them. It ignores the historical structure of relations that
precedes the particular actors and within which they act. The subject
pole of the dichotomy is privileged. The representational scheme is built
on the metaphor of self-presence at some moment prior to social engagement as the social field is explained in consensual, contractual terms.
The myth of the transcen9ental object represents social relations as
a natural process, not the product of social power and therefore not contingent on social recreation. The object pole of the.dichotomy is privileged as the social field is represented on a broad analogy to the natural
world as prior to the subject. While idealist representation posits the
subject as prior to and the creator of the social field, materialism treats
the subject as an effect of the structural laws which preexist the subject.
Both the idealist and materialist representations reproduce at the interpretative level the pacification experienced at the existential level by, on
the one hand, failing to. acknowledge the constraints of past historical
practice, and on the other hand, failing to acknowledge the contingency
of the status quo forms of social relations.
When viewed from within the subject/object dichotomy, the externality of the categories of social relations suggests that they are natural,
objective, transcendental mediators of social relations. They order social
500
1985]
Critical
1287
relations into a given form in similar fashion to the way language generally orders. re~resentations to consciousness. The entire social world
assumes ~bJecti_ve~ constraining characteristics, opposing the subject as a
natural, giVen_ h~It to the exercise of the subject's freedom. Liberal freedo~, defined I~ hberal consciousness as the freedom from objective const~amt, accordmgly comes to be associated with a constant search for
pnv~cy and s_elf-pre~en~e, ~ith the total isolation of the self from social
relatw~s. ~?Is extenonzatwn of the world outside the self implies a failure_or I~~bibty to see one's own actions as constitutive of that world, and
an. ma~Ihty to see one's self in relation to the world except as another
object m the objective world.
~~ failure of liberal interpretative theories, whether idealist or

ma~enahst, to come ~o _terms with the dialectical nature of the power of
social form~ of as~oci~tion correlates with the failure of liberal political/
legal the~nes. to. JUstify these forms of social power. Their continual
r~tran_slatwn m hberal interpretative schemes back into individual intentionality or natural proces~ ~s a~omplished in political/legal theory at
the abstract level by the distmctwn between public and private de jure
an~ de f~ct~.. These distinctions attempt to retranslate social po~er into
pnvate, mdlVld~~l. choice or natural group processes as they purport to
refl~ct the possibd_Ity _that the formally recognized social power, demo-
cra~Ic rule, has Objective, _transcen~ental limits and may exist independent of whatever happens m the pnvate spheres of social life.
. The s?cial power exercised through the ideological grammar of
social relatwns constitutes a significant public force. Moreover, it consti~utes a threat to the liberal definition of freedom as the subject's
I~dependence from objective restraint. Insofar as the social power of the
gi~en forms of association and the mode of their representation in consci~us~e~s acts as a structural limit on the.possibilities for the exercise of
subje~ti~It_y, the subject in liberal societies is constrained rather than free.
Th~ lD~Ividual freedom that is supposed to reside in private realms of
soci~l hfe, where _the stat_e has been excluded, is itself constituted by a
pubhc force mamfested m the objective system of signification. The
search for some self-present private realm free from public force founders
~s any self-p_resent r~lm may be seen, from within the assumptions of '
hberal consciOusness Itself, as already invaded by public ideology.
Furthermore, this public constraint seems to return the limits of
freedom to feudal conceptions, since the limits are created by the givenness ~f the sta_tus quo, by mere tradition. The contradiction of liberal
consciOusness_ Is that liberalism's distinction between subject and object
ma~es all social power appear alien to the self and therefore as a constramt ?n the subject, since the subject cannot see himself in the historical social products constituting forms of social intercourse. Freedom,
1288
501
Studies
[Vol. 73:1151
the hallmark of liberal social ideology, can therefore only be conceived as

pure subjectivity, as the subject apart from and prior to any historical
situatedness. Liberalism has no conceptual mechanism for representing
the social power of historical social products and no organizational
mechanism for controlling this social power, short of the antithesis of
liberal organizations, i.e. the totalitarian state, which would regulate the
social power of language in all its mani(estations. Liberalism therefore
must engage in a denial of social power as a social, rather than individual
or natural, force.
The private/public distinction encompasses the strategy of denial
because it denies the "social" aspects of the range of social relations by
labelling them "private." This strategy preserves the liberal promise of
freedom by fictively expanding the private realm from total isolation to
any social relation not subject to governmental egulation. This characterization is made plausible by translating social power as only that
power in which the inqividual subject can see himself reflected. The
democratic political practice is the formal representation of this realm
and is represented as having a monopoly on social power. Everything
outside the purview of this realm, conversely, is not viewed as an exercise
of social power. Thus, at one time, economic relations were considered
outside the realm of democratic practice and were translated as the exercise of private, individual wills. At another time, the de facto decisions
of private entrepreneurs to exclude particular groups, of people from
housing, employment, and accomodations were represented as a series of
discrete private choices rather than an exercise of social, group power.
To the extent that an analysis of social relations suggests that a si!fiilar
group power operates in every realm of social intercourse, the notion that
the democratic state is the embodiment of social power in which the individual may see his subjectivity reflected would imply that every social
relation presents political questions. The arbitrary and social process of
categorizing social roles extends to the process of categorizing as political
or nonpolitical those issues purported to be without social significance.
This implication can be avoided only by resting democratic political theory on the ultimate metaphor. The voter becomes a transcendental subject who freely determines his own fate regardless of the constraining
structures of "private" power relationships.
While the idealist represents the force of historical social products as
asocial and individual, the materialist mode of interpretation accepts the
constraining aspects of these social products but ignords their historicity
and hence their contingency. Here the public/private and de jure/de
facto strategy is pursued by defining a nonpublic, de facto realm in which
"natural" group processes, such as consumer marla:t behavior, form the
502
1985]
Critical
1289
private realm independent of the coercion of subjective social power,

again formalized in the state.
In both idealism and materialism, the state is formalized as the
realm in which the only subjective and contingent social power is exercised in a manner which does not alienate the individual subjects
because, by the vote, they can see themselves reflected in the democratic
process of state governance. Nevertheless, since each approach fails to
see the coercive and contingent social force of de facto social relations,
each becomes in the end an apology for the status quo social organization. Each denies the political and contingent character of relations.
Each conceptualizes nonalienated exercises of social power as occuring
within further subject/object hierarchies in the political realm, like the
relation of representee and represented. The abstraction of the formally
recognized social power, the democratic state, from the existential coercion of everyday life and from the immediate possibilities in concrete
relations for the exercise of group self-determinacy, dictates that it too
appear as an objective force, standing apart from the subjects and pacifying their potential power into the constrained role of "voter".
In short, the mediation of the public/private, subject/object, and
fact/value metaphors, and the metaphysical projection of a source of
social relations that exists apart from contingent social differentiation,
are not peculiar to the "intellectual" as opposed to the "experiential"
aspects of social life. We are never in an immediate, self-present space
where we are not re-presenting to ourselves or others. The experience of
alienation in liberal societies resembles the representation of social life in
elite discourses of authority to the extent that social alienation, the feeling of being strangers in a world we have created, also encompasses the
internalization of the subject/object metaphysic. Within that metaphysic, we suppress the extent to which we create the social language
that mediates our social relations, and accordingly we subordinate ourselves to our own creations, which we mistake for objective things
existing in the world.
CONCLUSION
American legal thought institutionalizes a particular myth structure

for representing the social world. At the most general level, the representational structure is characterized by the subject/object metaphor and by
the metaphysit;s of presence. Because of these two,features, the distinction between law and politics, like the liberal distinctions between knowledge and power, or between reason and passion, is a particular myth
abo!lt the social world. Legal thought is inevitably political to the e_xtent
that it institutionalizes socially created metaphors for the representation
of social life. This political act of power is suppressed within the dis-
1290
Studies
course by reifying the particular metaphors, by po~raying the metaphors

.
as independent of the play of language and rhetonc.
But this manner of legitimating authority is not peculiar to law.
The same process of reification characterizes social life it~elf in the
moments of pacification and alienation when the gro.up sense ts lost that
things could be otherwise, here and no~, that th~re ts n~ transcenden~
basis to the existing forms and hierarchies of soctal relation~. U:gal dtscourse is only one area in which the metaphors of ahenatton are
institutionalized.
The transformation of American legal discourse from the lib~rt~ of
contract approach to the assimilated realist practice ~cc~rred Wt~hm a
broader practice of inscribing a determinate and aut~ontatt~e meam~g !o
social events by suppressing the contingency of soctal relat~ons. ~tth~n
this practice, there is a collective denial that we are ~ngage.d m pohtt~s, m
the social construction of our world, with no stoppmg pomt, ~o ~otnt. at
which we are simply present divorced from the traces .of soctal mscnption, and no point at which social inscription could extst separate from
us.
.
.
Accordingly, the "problem" is not language, or the subject/obJ~ct
metaphor, or the objectification of the other. The process by ~htch
power is reproduced through its representation as nonpower ~nn?t Itself
be determinately represented by locating some source for pactficattOn and
alienation in some such marked-off aspect of the discourse of authority.
Rather the task is to face the inevitability of politics in the fullest sense,
to rec;gnize the extent to which we are inevitably. th.rown into social
struggle as either reproducers or resisters of the retgmng ~rder and t_o
face the prospect that we have no guarantees that any spectfic course ~s
the correct one. We inevitably align with one group or another; there ts
no place free from the play of social practice, where we cou~d flee fr~m
the existential condition that we create our world on the basts of a pnor
context that we can never fully grasp. The myth of the subject/object
metaphor is the projection of some place, either in the subject o~ the
structure of things, that is outside social inscription. But there ts no
point beyond social inscription, no law separate from po~itics: no. knowledge separate from power, no reason separate from, tmagmattOn, ?o
things underneath mere words, and no free subjects separa~e from soctal
language. The myth of presence is the treachery of self-demal as we fil~er
our perception and communication about social life through the offictal
metaphors of validity.
503
[13]
University of Pennsylvania
Law Review
FOUNDED 1852
Formerly
American Law Register
VOL.
133
APRIL
1985
No.4
THE POLITICS OF REASON: CRITICAL LEGAL THEORY

AND LOCAL SOCIAL THOUGHT
JAMES BOYLEt
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
THE LINEAGE OF THEORY. . . . . . . . . . . . . . . . . . . . . . . .
687
691
c Copyright 1985 by James Boyle. All rights reserved.

_
t Assistant Professor, Washington College of Law, American University. LL.B.
1980, Glasgow University; LL.M. 1981, Harvard University. Some of the research for
this project was completed while I was a Frank Knox Fellow at Harvard Law School.
The Washington College of Law Research Fund gave valuable assistance throughout
the preparation of the manuscript. Parts of this Article were prefigured in a set of
introductory materials prepared for the Eighth National Conference on Critical Legal
Studies, held in Washington, D.C., March 15-17, 1984. I would like to thank everyone
who took the time to make comments on those materials. In particular, Anthony Chase
and L.H. LaRue gave me the benefit of thoughtful written criticisms. Mark Tushnet,
Burt Wechsler, and the rest of the D.C. Planning Group helped with suggestions, encouragement, and deadlines. Andy Lichterman taught me about Habermas, and Gunther Frankenburg gave me the (probably misplaced) confidence to write about him.
The Kennedys, Duncan and David, provided more help and support than I can acknowledge here. Gary Peller supplied endless reassurance, adrenalin, friendship, and a
vision of Lukacs "on the wild side." He was also kind enough to show me his (as yet
unpublished) manuscript, The Metaphysics of American Law, which greatly influenced
this Article. Deborah Rhode, Bill Simon, David Trubek, Toni Pickard, Frances Moran, and Mark Tushnet were kind enough to comment on an unfinished draft. My
colleagues at Washington College of Law gave hc:lpful suggestions, and my jurisprudence students inspired me. Don Pongrace researched expertly. Errors are mine.
(685)
I
I
506
686
I
f
I
I
I
I
I
I
II.
B.
I
I
C.
First Trace: . The D~~~. s~;~c~~~~ . ~i Liber~

alism-Total Critique and Faith .......... . 757
3. Second Trace: Phenomenology, Structuralism,
and the Limited Sphere .................. . 760
4. Third Trace: The Sartrean Synthesis ...... . 761
Departures from A1arxism ................... . 762
1. Introduction ............................
762
2. First Trace: Transformations m Marxist
Thought .............................. . 763
2.
D.
687
3. Second Trace: Irrationalist Legal Thought

4. Third Trace: Consciousness and Closure ....
What the Tension Tells Us ..................
Dealing with the Tenswn ... ................ ..
1. Immanent Critique" and Local Theory ......
2. Mediation and the Theoretical Toolkit .....
CoNCLUSION
0.
.
.
.
.
.
764
765
7.66
769
769
7_73
778
INTRODUCTION
736
736
Legal Realis~ : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : 746
1. Introduction ............................
746
2. First Trace: Neutral Law and Legitimation .. 747
3. Second Trace: The Critique of Technocracy .. 751
4. Third Trace: Legal Scholarship ........... . 753
Linguistic Theory .......................... . 756
1. Introduction
756
Introduction
507
THE POLITICS OF REASON
E.
F.
LINKING UP THE TRACES
A.
I
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1985]
[Vol. 133:685
Introduction .............................. . 691

Legal Realism ............................. . 691
1. Introduction
2. First Trace: Neutral Law and Legitimation .. 691
3. Second Trace: Technocracy and Legitimation. 696
697
4. Third Trace: Contemporary Legal Scholarship
and the Concept of Reason ............... . 702
5. Summary ............................. . 705
C. Linguistic Theory ..................... .
708
1. Introduction
708
2. First Trace: The Two-Edged Sword of AntiEssentialism
713
3. Second Trace: Varieties of Irrationalism ..... 715
4. Third Trace: Reification in Legal Reasoning . 718
5. Summary ............................. . 720
D. A1arxist Thought ........................... . 721
1. Introduction .. .
721
2. First Trace: Fro~ c~~~~ir~~~ .Th~~;; ~~ R~l~~
tive Autonomy (and Back Again?) ......... . 722
3. Second Trace: The Irrationalist Approach-Sturm und Drang, Mush, and Zap. 725
4. Third Trace: Consciousness and Closure .... . 727
5. Summary ............................. . 730
E. Conclusion ................................ . 730
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
A.
B.
In this essay I pursue two different and potentially" incompatible

goals. In the first part of the Article I try to give a sense of the types of
theory that are commonly lumped together under the tabH "critical legal scholarship" 1 and thus to describe and, to som'e extent, explain the
body of writings produced by the lawyers, law students, and law teachers associated with the Conference on Critical Legal Studi'es (CLS). 1
1
Most articles describing critical legal theory are more or less straight, discursive
accounts of a supposedly unified body of work about doctrinal indetenninacy,.Ieg~tima
tion, and political action. See ~urces cited infra note 2. In this -essay I have tped to
come at the problem from the other end. Instead of searching for a "unifie<!, body o~
work," I offer a fragmentary set of 'accoui1ts about critical legal theories. Most of the
theories are drawn from the: publications of those associated with the Conference on
Critical Legal Studies (CLS); some are developed from my own teaching and writing.
Then, rather than limiting myself to description, I analyze a' constitutive tension that
runs through critical legal thought and that can be used to understand ana 1o cre~te
everyday social theory. l run two major risks by p,ursuing this descriptive/prescriptive
strategy. First, I am stereotyping a body of scholarship \hat tends to wriggle out of any
classificatory structure, and th&s I put my f'riends and colleagues in the Conference into
categories with which they are at least unfamiliar and at worst unhappy. Second, I am
adopting a structure for the Article that is itself implicated in the dichotomies i_t discusses: Can one discuss a romantic, avowedly irrationalist phenomenology as an idealtype? I offer sincere apologies, pleading lack of ability and a Scottish love of both
system and contradiction. See, e.g., D. HUME, A TREATISE OF HUMAN NATURE
(1888). I hope my good intentions, jf not my results, will provide an excu~eJor all of
ili~
For a general exposure to critical legal theory, see THE PoLITICS OF LAw (D.
Kairys ed. 1982), and in particular, Robert Gordon's excellent essay, New Developments in Legal Theory, in id. at 281, which inspired much of this Article. A ,fur~h.er
exposure to critical legal thought can be gleaned from the book reviews of The Pol1t1cs
of Law. ln.particular, see Dalton, Book Review, 6 HARV. WOMEN's ~-J. 2~9 (19~3);
Forbath, Book Review, 92 YALE L.J. 1041 (1983); Levinson, Escapmg L1beralzsm:
Easier Said Than Done (Book Review), 96 HARV. L. RF.v. 1466 (1983). It would be
lese majeste to ignore Note, 'Round and 'Round the Bramble"Bush: From Legal Realism to. Critical Legal Scholarship, 95 HARV. L. REV. 1669 (1982~ . whiclt-does for
critical legal studies what lettuce did for Peter Rabbit. Unger, The Cnt1cal Legal Studies Movement, 96 HARV. L. REv. 563 (1983), provides a rare programmatic vision for
critical legal theory. Set generally Kennedy & Klare, Bibliography of Critical Legc:l
Studies, 94 YALE L.J. 461 (1984). For an application of .Orne of the ideas developed IJl
this article to theories of personality, see Boyle, Modernist Social Theory: Roberto Unger's Passion (Book Review), 98 HARV. L. REv' 1066 (1985).
I. II
1/
I
I
II
/I
III
I
II
rl
I
I
I
II
III
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508

688
509

(Vol. J33:685
My argument is that all of these theoretical projects share at least a

certain assumption about the politics of reason: the social power of apparently rational discourse. In the second part of the Article, I try to
explain why someone would find it interesting or even liberating to
produce this kind of theory or to think this way. Having examined, and
rejected, the claim that critical legal theorists can be usefully divided
into a rationalist and an irrationalist camp, I offer an alternative heuristic tool: the tension in critical legal thought between the subjectivist,
personal, phenomenological strand and the structuralist, patterned, impersonal strand. I am happy to say that this tension is absolutely useless for classifying or categorizing theorists. It does seem, however, to
offer some insights on how to theorize. The unifying aim of the Article
is to develop a way of thinking that helps us both to confront the standard problems of social thought and to act: to deal with the most mundane exercises of power in the workplace as well as the baroque structure of liberal state theory. Consequently, it differs from much of the
recent writing about CLS in that my aim is to develop a toolkit for an
ongoing project rather than to chronicle the rise of an academic
movement.~
One can describe the scholarship produced by those associated

with the Conference on Critical Legal Studies in a number of ways. In
fact, the multiplicity of theoretical entry points is both a strength and a
weakness: the fortner because of the richn<;ss and depth that the scholarship has acquired and the latter because of the corresponding increase
in inaccessibility, paradox, and self-referential obscurantism.
Fr?m the outside, critical legal scholarship appears to be a strange
blend of legal realism, the New Left, and literary criticism. It oscillates
between wildly esoteric European philosophy and painstaking descriptions of the fine texture of mundane social interaction. It is left-wing,
yet it is deeply critical of Marxism. It is avowedly against hierarchy,
yet it is often accessible only to those at the top of the educational pyra'mid. It is generally criticized as being too theoretical, yet its protagonists seem to believe that it informs an immediate and concrete type of
political actiop, both within and outside the law school. Finally, ir is
antiformalist, yet it probably takes doctrine more seriously than any
other contemporary school of legal scholarship. I do not seek to unravel
all of these paradoxes in. this essay, since that task is probably both
undesirable and impossible. Instead, my strategy in the first part of the
Article will be to describe some of the intellectual ancestors of critical
legal scholarship and then to give a rough typology of that scholarship
1
See, e.g., Critical Legal Studies Symposium, 36 STAN. L. REv. I (1984).
1985)
689
.
h
. ms simultaneously' without beI have adopted a method
itself. In attemptm~ to ~u~sue t ese ~~
coming either too Slmphstlc or t~ o scure,
that deserves some .brief explanation. ch of the bodies of thought that
While developmg a su~~aryl ofleah
have ttied to draw out
1 k
as cnt1cal ega t eory 1
are collectiVe Y
nown
,
"loose. end s , w h'lCh 1 weave together in the
f "
a number o traces ~r
h
h ; discussion of the difficulties insecond part of the ~rtlcle t ro~g h method may not solve the paravalved in "doing" socla~ theory. uc oa that it will minimize them. In
doxes that I have mentioned, but I h
h seek an introduction to
win those who are
particular, I hope that it willallow. t ose W: o.
CLS to skim off the exegetical sectiOns, whde allo
~the "archaeolmore interested in the blueprint for theory to uncove
~:.. b I am heading so
.
h'
f tl}e pomt towar s WulC
Let me glve a fmt
myo argument w1'11 be easiel"' to follow. Critical
that the tra_]ectory o
.
f claims about the naturalness,
legal theory has reac~ed .ll?amst a :~: : litical quality of 'Various dispo, because the critiques that
the.neutrality, the objectlVlty, a~~d'
h
term
1scourse
f . . l l l thought have been mounted
courses. l use t e vague
form much of the substan~e o cntlca ~ga ractices. There are critiques
against a diverse range of Ideas al}d stc~al ; te II of "essentialism," of a
of formalism, of the liberal_ the~ry ~- t e ~e~ti~ts., of law and econombelief in the neutral expertise o po ley SCI . e , d f the "mass psy-
ogy" of
t~e suggestions that I put. forward. d
ics, of the hierarchy ?f cl_assr~~B~tt~~a~~::ca:: th~ substante of the

h .
nd the immutability that the
chology of the new federahsm.
critique has been to deny the ~-ut onfer: on the practice in question.n
h t "things could be otherappeal to naturalness or neutra Ity con
Critical legal theory thus asserts t a
See, e.g., R UNGER LAW IN MoDERN
SociETY (1976); Kennedy, Legal .For)
(1975) Boyle, Ideals and Thmgf:
mality, 2 J. LEGAL STUD. 351 (1973.
See
R.
UNGER,
KNOWL~DGEdA~D
~~~:~~oust
o/Language, 26 HARV. INT L
International Legal Scholarship an t e
L.J. 327 ( 1985 ).
See
See RN.ote,
UNGLER,lsuTp:e:ryno~en!'
ega
t~};,3~ducation,
o
79 YALE L.J. 1153, 1172-78
E
. Analysis of Law, 5 J. PHIL. &
(1970).
See, e.g., Baker, The Ideology of the co.no~:ience or Politics1, 8 HoFSTRA L.
Pus. AFF. 3 (1975); Horwitz, L_aw and E~o_noml_c:;9 WIS L. REV. 769; Kennedy, CostRiv. 905 (1980); Kelm~n. Cholet and,Ut111J~t' ue, J3 STAN. L. REv. 387 (1981).
Benefit Analysis of Entitlement P~oblems. . . 11/fi Hierarchy, in THE PoLITICS OF
See Kennedy, Legal Education as Tralmng or
LAW supra note 2, at 40.
h N
;o See Gabel, The Mass
Court's Political Imagery LegJtlmiZes t e "
WASH. L. REV. 263 ( 1984).
" See Gordon, supra note 2, at 289-92.
Federalism How the Burger

of Everyday.Life, 52 GEO.
!'~~bolo~ o~ ~v:tiza~on
II~
~ ,,
510

690
Critical
[Vol. 133:685
1985)
511
Studies
691
12
wise," and in working out the reasons how or why "things could be
otherwise" it has had to grapple, albeit unconsciously, with the fundamental questions of contemporary social and philosophical thought.
One way of describing these fundamental questions is to say that they
center around the politics of reason: the extent to which our ideas of
rationality are themselves incoherent, authoritarian, or politically tilted.
Yet this grappling with concepts of rationality goes on subtextually.
Sometimes it is literally subtextual, as when the names of European
philosophers are invoked in the footnotes to signal a commitment to one
13
position or another; sometimes positions can be inferred, as when an
attempt to provide a small-scale critique of the politics of the classroom
seems to imply a rejection of large-scale rationalist theories abour the
relationship of law and society. 14 Thus debates about the politics of
reason are not limited to the objects of the CLS critique, such as rule
formalism. These debates are also carried on inside critical legal
thought with respect to its own methodology; indeed, every critical legal
studies conference seems to feature a discussion between the rationalists
16
and the irrationalists. One of the principal aims of this essay is to
bring to the surface some of these epistemological issues in critical legal
theory, by tracing their progr~ss in the intellectual traditions on which
11
One can trace critical legal theory's stress on the contingency of all societal
arr.tngements-its claims that we need not see societal arrangements as external things
that we are powerless to change-and its insistence on die necessity of choice, to a large
number of sources. See, e.g., M. ABRAMS, THE MIRROR AND THE LAMP: ROMANTIC
THEORY AND THE CRITICAL TRADITION {1953); j. ANOUILH, Antigone, in FIVE
PLAYS 3 (L. Galantiere trans. 1958); R.D. LAING, THE POLITics OF EXPERIENCE
(1967); H. MARCUSE, AN EssAY ON LIBERATION (1969); H. MARCUSE, COUNTERREVOLUTION AND REVOLT (1972); J. SARTRE, CRITIQUE OF DIALECTICAL REASON
(A. Sheridan-Smith
trans. 1976); ]. SARTRE, THE REPRIEVE (E. Sutton trans. 1947).
11
See, e.g., Kennedy, The Structure of Blaclr.stone's Commentaries, 28 BUFFAt.o
L. REv. 205, 210 n.2 (1979) (citing authors who most influenced devc:lopment of article-for example, Lukacs, Levi-Strauss, Piaget, Kohler, Mannheim, Marx, and
Hegel).
that theory draws.

ment in this piece can be
The thematic deve;op~en~ o~ :Itf ~~e Article, I concentrate on
summarized a~ follows: . n the Ir~
litics of reason must attract our
description. First, ~ claim ~ ~~
fstinction between justified authorattention if we are mtereste
d I
. ne particular theories proity and arbitrary power. Secon ' _exa~~m arguments about the seduced by critical lega.l scholars,_ ~~gmg f Marxist theories of law and
miology of legal discourse to cnticisms o.
h" ch criticallegal .thought
1 d
I study the ways m w I
d
state. Whi e omg so,
.
camps of rationalists an
has ?een _or co~ld be divide: ~~~t ~K~:~~~nalist/irrationaliSt division
irratiOnalists'. Fmally I argu
d half of the Article, 1 offer an
. . 1
useful one In the secon
. . . .
IS simp y not a. .
...
al thou ht: that between the subjectivist
alternative tension m cnticalleg.
h" g t nsion to unify the traces deand structural strands. After usmg t Isth~ for social and legal theory.
vel oped in .the first part, I suggest a me
:h:
I.
THE LINEAGE OF THEORY
A.
Introduction
com Heated lineage both within and

Critical legal theory, has a If P
k inside legal thought the
outside traditional legal thought..
w~ 1~- m 11 and as is generally
most obvious point of departure IS 1eg~ re. I~b~ous te~ds to lead to a
h
fact that the connection IS
..
the case, t e very
h
h mena connected. To mitigate
reductionist _picture of. bo_th ofl t b: ~n e~o discussing legal realism and
this coarsemng reductiOn~sm, . ~ li/ istic theory and its influence
then move to a parallel discussiOn ~ 1 d~ussion because I attempt to
on legal thought. I call it a para ~ I~ a different context. Finally,
h
ideas and progressions m
I 1
present
t
e same
. . 1 1egal thought and Marxist ega
I discuss the
difference between cntica
theory.
14
See, e.g., Kennedy, How the Law School Fails: A Polemic, I YALE REv. L. &
Soc. ACTION 71 (1970); Kennedy, supra note 9, at 40; see also D. KENNEDY, LEGAL
EDUCATION
AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST Tilt:
SYSTEM
(1983).
B.
1.
11
The rationalist/irrationalist split has been one of the central discussions in

CLS. Rationalists are supposed to work according to the model of 19th century social
thought; in other words, they make far-reaching claims about what is really going <!n.
M. HoRWITZ, THE TRANSFORMATION OF AMERICAN LAw 1780-1860 (1977) has
been held up as an example of rationalist critical legal theory. Irrationalists, on the
other hand, are supposed to be relentlessly nihilistic, trashing everything because they
know that no "positive" claim can be defended. See, e.g., Kc:lman, Trashing, 36 STAN.
L. REv. 293 {1984). Duncan Kennedy's quasi-structuralist depiction of liberal legal
theory is hailed as one of the central irrationalist texts. See Kennedy, supra note 13; see
also Dalton, supra note 2, at 234-48 (arguing for irrationalist position, and stressing
role of "fundamental contradiction" developed in Kennedy).
Legal Realism
Introduction
.,
n lace that to understand critical legal tho~ght _one
1s aunderstand
commo P legal reahsm.
. 17 Th"IS .IS not as easy as tt might
must Itfirst
1
11
See Note supra note 2.

'
.
h
Legal realism .ts muc
ood
. t llectual movement. See Schlegel,

.
28
the Yale Expe~nce, .
.
d rst
as an m e
mlsu~
.e :t Social Science: Fr01TI
American Legal Realum andOE(7t;~)A large part of this misunderstandmg IS /jrediBuFFALO L. REV. 459, 459-6 .
. .
d detractors See E. PuRCELL, THE RISIS
cated on the apocalyptic fears of ItS nvals ~n TURALISM .& THE PROBLEM OF VALUE
OF DEMOCRATIC THEORY: SCIENTIFIC
513
Critical Legal S!udies

512
693

692
[Vol. 133:685
seem. When I recently asked a group of students what they knew about
legal realism their response was that "the realists were the people who
told us that judges put on their trousers one leg at a time, just like
everybody else."
If I understand this slightly sexist statement correctly, it refers to
the ineradicable subjectivity brought to the legal system by the very fact
of the judge's humanity. This kind of argument has been a favorite of
off-the-cuff jurists and after-dinner legal theorists for quite some time.
They can quickly adduce examples of rough (but fair) commonsense
justice and its negative counterpart, irresponsible judicial meddling. But
the realists actually went far beyond this type of postprandial legal theory by developing a set of ideas that seemed to imply the impossibility
of separating law from politics, not merely because of the judge's subjectivity but also because of the impossibility of constructing a set of
rules that could be applied in a neutral or objective manner. Indeed, the
vision of the realists that emerges from critical legal studies could be
summarized in the following imaginary intellectual biography:
Legal Realists b. 1900(?) d. 1940(?). Much misunderstood

group of legal scholars who are remembered as having made
vulgar conspiracy-theory charges about bias in the judiciary
but who actually did something much more important. The
realists started off by pointing to the vacuity, circularity, and
medieval' silliness of legal reasoning and by stressing the role
of policy rather than rules in judicial decisions. (Some of
them had a naive faith in the power of social science and
advocated a legal elite made up of enlightened technocrats).
The implications of their critique were more corrosive than
they imagined, however, and seemed to undermine belief in
the "rule of law" and thus to destabilize the whole legitimating story on which the liberal state depended. At that point
the realists backed off, abandoning a treasury of critical and
argumentative tools that were rediscovered by bright, young
radicals in the early 1970's. This was the beginning of CLS.
159-78 (1973). For an example of such a misunderstanding, and of its rebuttal, see
Pound, The Call for a Realist Jurisprudence, 44 HARV. L. REV. 697 (1931); Llewellyn, Some Realism about Rea[ism-Responding to Dean Pound, 44 HARV. L. REv.
1222 (1931). My own understanding of legal realism is particularly dependent on K.
LLEWELLYN, jURISPRUDENCE: REALISM IN THEORY AND PRACI'ICE (.1962), and on j.
FRANK, LAW AND THE MODERN MIND (1930). Interestingly, the latter text represents
an early working-out of ideas concerning the politics of rationality in the context of the
judicial system. For a brief but comprehensive introduction to the diverse intellectual
approaches subsumed under the term "legal realism", see Note, supra note 7, at 115772.
!985\
f the importance of th(, reahsts to

The best way to get a sense o .
to develop sev~ral of the traces
or this piece is .to wqrk
. t. cal legal theory and at the same ume .
en I
the last sect10n r...
f d
h l rship In his be;tutifully era te
that are woven together m .
through an example of. reahst s; a:~ the Functior&ql Approat(h,ll ~eck
the apartheid that classical
. le Transcendefl.tal Nons~
. l reahst atta on , . .
..
h' s
artIC ,
Cohen
mounts
a
typica
h
ne
hand and pohucs, et tc '
x
l1
b
law on t e o
.
d
legal thought set up etwe~n After dealing with corporate law, tra. e~ss he continues ~ith a sectlOn
or empirical data on the ot er.
marks, fair, market value., and due prnse , ,which m~kes clear the bac~'tl d "The Nature of Legal Nonse , . r 't vision of th~ social
;~:~u~d claims about languaged and d~e tmp lCl
world o~ which hi~ argument epen .
..
ery field
.
rolong our survey, m ev
.
It would be tedtous to P
h b't of ignoring practtcal
of law we should find the s~e facti and' taking refug~ in
of postuve a
.
questions of va1ue or
l
be answered by mampu"legal problems" which can ~ ways
d ways "In every field
'n certam approve
.
d
1
r ohcepts which
are not elating legal concepts
o law we should find pecu ~a: cl f ct or in terms of ethics
fined either in terms of empt~ca . ~ l ana ethical questions
f
d t0 answer empmca
but which are use
to inteiligent investigation ~ s?alike and thus bar the way
t entity property nghts,
ciaf fact and social policy. Corpora e h con~epts. So too are
d due process are sue
d ll
fair va lue, an
.
l' proximate cause, an a
title contract, conspracy. ma ue,d , of traditional jurispru " olvmg wor s
'
the rest of the magtc s
h d . these terms are necessadence. Legal arguments couc e m themselves creations of
these terms are

rily circu1ar, smce
ts add precisely as much to .our
law and such argumen h . . 's d'Iscovery that opium
'
M r p ystcian
1e
knowledge as
o teres .
. a dormitive principle.
l p because It contams
puts men to s ee
1 to an under.
ints that are centra
Cohen is making two baste ~ F' t he is pointing out that law
standing of critical legal scholarship. Irts m' of discourse that takes the
.
12o system a sys e
is a separate semiO1ogtca
'
.
" Cohen, Transcendenta
R~v.
. l Approach 35 CoLUM.
l N nsense and the Functwna . 1
'nd its encapo C hen's article because of .'~s c anty a h in later
(~;~~ !f~~:e !~~~nthe~es,
2~::~~~~f:~~~~::~~
L.
8?9
and rcau;
the starth.
jurisprudence class, use
sulauon o so
~ocial theory. In te~c '~! :evelop my own ideas.
mg place from which
t the correct usage of
Id. at 820.
I fruitless literature devoted o
T HAWKF.S,
so There is. a \;lrg,~, .~:~~:~~ce,r "semioti~al," and so onC~~~R~tTIO~S TO THE
the terms "semiology,
s
ti3-50 (1977); T. SEBEOI_t, .
m" to mean a
STRUCI'URALISM & SEM~~~ICS(1976). 1 use the term "semwloglca1 syste
DocrRINE oF SIGNS 47
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
.I
I
I
I
I
I
I
)
514

694
Critical
[Vol. 133:685
" rea1". Pheno~~na o~ the soc_ial world 21 (a woman called Mrs. Palsgraf
suffen~g an InJury m a railway station) and translates them into a
f?rmahzed realm of abstract concepts, with defined functional properties ("t~rts," "~laintiffs," "defendants," "foreseeability," and so forth).
Cohen IS argumg that since we created these abstract concepts for a
purpose, we shoufd loo~ to that purpose22 and the factual and political
phenomena related to It when a legal dispute arises. We should not
attempt_ to settle the dispute by defining or interpreting words. For example, If we' wish to decide whether a corporation is liable for certain
~cts done
a partic~Ia: stat~ we _sho~ld look at the "policies" and
purposes mvolved m Imposmg habihty rather than attempting to
':deduce" the result from a definitional analysis of whether the corporatio~ has entered into the jurisqiction. 23 Cohen's demonstration of these
pomts can be reduced to the idea that the "legal world" is an autonomous system of concepts and that arguments within that system will
therefore be circular, unlike arguments that refer back down to the
"real worl~" of_s?cial facts. Critical legal scholarship has accepted some
parts of this cntJque and rejected others. To understand which parts
were accepted, and why, we must look to the second premise of Cohen's
argument, a premise that is not as weiJ worked out as the first.
!he stand~rd realist attack on the meaningfulness of traditional
d~ctn~al analysis, argumentation, and i,nterpretation depends on a cer~am VIew of language: Copen's point about the circularity of arguments
m the closed system of legal concepts is simply not true if language can
,!n.
f:tllec;ion of s~g~s that, through their patterns of relationship and difference, are capa. e ?fi tr~nsm~tung messages. Thus, semiology is the general study of the systems of
~gm tcatlon t rough which human beings attempt to communicate. See R. BARTHES
LEMENTS OF SEMIOLOGY (A. Lavers & C. Smith trans. 1968)
'
21 1
" 1, .
.
h
put rea In quotation marks because any discussion of rationality and social
t e~rj must grapple w~th the _question of the "reality" of phenomena. This is neither a
~~ ~ nor a. metaphystcal qutbble. After all, our experience of Mrs. Palsgrars injury
.
e perceived or understood only as part of an enormously complex pretheoretical
mte!!e~.t.u~l construct through which we interpret the social world The ideas of "ruor'
son
In u
"
d " f' "
r- .
. " ry, _an
~u enn~ are al! abstractions from, and filters on, experience.
Mamtam~d by tdeologtcal, ~ptstemologtcal, and social power, they and their kin literally constztf!le our ~orld. Dtvergent ways of viewing (or creating) "reality" will at least
~~us~ us.. dtffi~~lty m,communicating and at worst may lead others to brand us as
~vt~nt or msane. How, then, can we say that the legal world is any more an
arufictal construct than the social world? Both are "systems of thought" that were (and
~re) create~ by people but that appear to be thing-like-immune to human intervention. Bot_h, I_n a se_nse, create the world they purport to describe. In the text 1 brush over
~hese obJections smce _I want to save them for the second part of the Article. See also
mfra text accompanymg notes 108-110; see generally P. BERGER & T. LUCKMANN
THE 1~CX"IA~ CONSTRUCTION OF REALITY ( 1967).
'
. See 1njra notes 88-89 and accompanying text (discussing Lon Fuller and purposive 1egal thought).
u Cohen, supra note 18, at 809-10.
!985]
515
Studies
695
act as a bridge, as a connection, between the "real world" of social life

and the "legal world" of what he disparagingly refers t~ as "transcendental nonsense." 24 If I wish to find out whether a particular group of
individuals pursuing some joint enterprise is in fact a corporation and I
can only look within the world of legal concepts for my answer, the~
Cohen is right; the process would be necessarily circular. As he says, ~t
would be the same as saying that "opium puts men tO sleep because It
contains a donhitive principle." 211 But ~f the term "corpc:)ration" co~ld
be defined authoritatively by a court in such a way as to trans~~te ~ts
abstract legal properties into t~e concrete pheno~ena ~f the social
world " then it seems that Cohen's point would be mvahd. To use the
opiu~ example again, it is as if we had" defined the "dormitive princi~
" 1 terms. ZG
ple" of' opium in phys1cal
or chem1ca
.
Yet Cohen denies the possibility that legal Concepts are de~ned 1?
nonlegal terms. 21 In part, this denial aris_es from t~e case stud1es tha~;
precede the section on which I am focusmg. But It see_ms to ~e that
Cohen's denial ultimately rests on a simple but corros1v~ beh_ef: t~at
language is not neutral. 28 There is no ob~ective tra~slat10n of s~c1al
phenomena to legal phenomena, no neutral mterpretat10n of unambiguous doctrine.ze At each stage of the legal process a subjective and esse~
tially political act of interpretation is required. ~is politi~l. choice IS
involved in the wording of rules, in the construction and mamtenance
of the "legal world " and it is involved in the process of "decoding," in
the application of ;he legal system of signs to "reality.:' This idea will
be more fully explained in the next section, but.we have ~ow reachedthe point where we can begin to draw out the traces t_hat w1ll be woven
together in the conclusion of this essay. One could thmk of these traces
as distinctions between legal realism and critical legal theory ~hat may
serve to illuminate both and that also express some of the tensiOns over
the politics of reason to which I alluded in the introduction.
I d. at 811.
!d. at 820.
/d.
24
27
See id. at 820-21.
,
.
I deal with this idea more fully later. The basic work that informs my.dtscussion of language is the ubiquitous L. Wn1GENSTEIN, PHILOSOPHICAl. INVESTIGA
TIONS (G. Anscombe trans. 1958).
.
. .
b h
Cohen's argument is that the dogma of objectivi~y that ts mamtamed. Y. t. e
formalistic use of language in lega~ reasoning_ ~erves to obscure the fact that J_udtctal
opinions arise from a matrix of soctal and pohucal forces. Rath~r t~~n advocau~g the
purification of a formalism infected with foreign e~ements of su?Jectlvtty, C_o~en ~con
clusion is that we should study the ways in whtch these soctal and !J?ht~c?l ?rces
impinge on judicial decisionmaking. Thus, he seems to assume that subJe~uvtty IS an
inevitable concomitance of language, no matter how carefully language IS used. See
Cohen, supra note 18, at 842-47.
516
696
2.
517

[Vol. 133:685
1985]
697
First Trace: Neutral Law and Legitimation
First, Cohen is less concerned than critical legal theorists have

been with the reason for the construction of this legal world, this set of
signs that is apparently so divorced from the social reality we all expe80
rience every day. It could be argued that in terms of liberal political
theory it is in some sense necessary that we translate the struggles, conflicts, and politically contentious values of everyday life into the supposedly neutral semiological system of the law. 81 The restraint of a potentially coercive state power ard the defense of individual freedom both
seem to require a set of neutral rights existing "above" the Hobbesian
appetites that liberal theory imputes to us. 82 In this view, law must be
neutral twice. First, law must be ne4tral in the process of translation.
Otherwise we would politically "distort" Mrs. Palsgrars accident simply by turning it into "a tort case." Secondly, it must be neutral in the
process of decision. In other words, once translated, the confused situation in the hot railway station, the radically different sets of values that
could be applied, our empathy for the victim as opposed to the railroad-aU of this
is turned into an equation made up o( formal, opera88
tional-symbols. And, because of this translation, we can deduce a neutral and correct answer, or balance the policies, and come out with an
ao It seems that this point remains to be answered even if we decide that I am
correct in suggesting that there is no qualitative difference between the conceptual
framework that gives us the "real world" on the one hand and the framework that
produces the world of "transcendental legal nonsense" on the other. See supra note 21.
103. at For the germinative expression of this idea, see R. UNGER, supra note 5, at 8812
Tushnet,
Legal Scholarship: Its Causes and Cure, 90 YALE L.J. 1205,
(1981
).
1206-07See
For an excellent description of this process in the Palsgraf case, see ]. NooNAN, PERSONS AND MAsKs OF THE LAw Ill-51 (1976). Noonan's basic position
seems to be a sort of humanistic post-realism. His ideas seem to depend on two basic
assumptions: that no objective decision is possible, and that even the most rigid rule will
have problems of formal realizability. Consequently, he argues that the legal profession
should adopt a practice of benevolent and empathetic humanism. I believe that this is
an important and, in many senses, admirable attitude, but I am more interested in the
way that the legal system embodies the general practice of social reification: the process
by which choice can be denied because the political judgment is hidden within the
reified concept itself. Seen in this way the problem that Noonan identifies (the depersonalization of Mrs. Palsgraf by legal categories) is linked to all the other examples of
social reification, ranging from the maintenance of sexist stereotypes of men and
women to the feeling of constraint when one is urged to "think like a lawyer." In each
case the role becomes more important than the person. The political or moral choice is
hidden away inside the golden calf of an alienated social construct. Thus we are only
required to provide acquiescence and adulation; the responsibility for our actions has
been taken out of our hands by our own creations. This is the connection between
idolatry and reification. See R. UNGER, PASSION: AN EssAY ON PERSONALITY 25-26
(1984); Boyle, supra note 2; Gabel, Reification in Legal Reasoning, in 3 RESEARCH IN
LAW AND SOCIOLOGY 25 (S. Spitzer ed. 1980).
~-
----
objective result.
.
make the first trace we can draw out
So the first pomt we could
d' the realists generally were not
of legal realism, is that. ?ohen ~nscholars in the role that "transcen. nearly as interested as cnu~al le~a . . the picture of "a government
dental legal nonsense" has ~~ mamtalm.ng the legitimacy of the liberal
of laws not men" and thus m suppo~m~ns1sts of a series of complistate.u Much critical-legal_ scholarshhiP.d that law cannot be interl .
lanauons of t e 1 ea
d.
cated and eru lte exp
law/ litics distinction and the. egltpreted neutrally and. t~us that t~i~eral ':ate depends must inevltably
imating story on whlch the . . t have turned away from a focus on
C
ollapse. Other ctitical legal theom_s
.
flaw and toward a focus
h "hterpretauon o
1
the failure of neutrahty m t e ~
h" h 1 al doctrine re-presents SOCia
0 n the politically "tilted" way m .w lC
eg
posium "The objective
b 1 t "t in. a recent sym
.
reality.all As Peter Ga e pu I .
n
thr<rugh the mediatwn of a
of the Supreme Court is to paofy cf~nd let and images about the world
.
tern a set o 1 eas
.
'
uivalent of religious ideology ~~ prefalse social-meamng sys
,f.
the politics of legal mterwhich serve today as the secula: eq
. d ,aa Thls move rom
k
vious historical peno s.
.
s contin~ed by the CLS wor
pretation to the politics of l:~~:l:a~~.~~al meanings and belief clusthat concentrates on other, n
g
. t to which I will return later.
ters-a pom
3.
(on
Second Trace: Technocracy and Legltlma
1
1 al realism and critical legal theThe second difference b!,!tween egh

1" t were obsessed with the
d
h first T e rea IS s
.
ory is intimately relat:, to ~ e. I . ~ " the wanted them to admit that
fact that ju~ges wer~, malpnglicl.~'YSometrmes this belief in ?etter. polfact and so to make better po y
dl objective social science
icy was shored up by an a~peal.:o t~~Pfao~e sc~ool; it had moved next
y the choices that were to be
data.s7 Truth no longer resided I
door into the economics departm~nt. et l"t"cally loaded as they had
d JUSt as po 1 I
made using these data remame'b I . " reified "interests" and no
t of ' a ancmg
t"
would put the Humpty
always been. No amoun
forma1
amount of pro/con po rICY argumenta wn In place of the
Dumpty of legal neutrality back togethe; tga~nianguage of the marketists' claim to have identified t~e natubra_ ~g: an equally questionable
1
some Of the legal reahsts su stltu e
pace,
.,
L REV. 243, 248-49 (1984).

I..
WASH.
See Kairys, Law and Po lliCs, 52 GEO
36-J7
Gordon,. supra note 2, at 288 .
See, e.g., Gabel, supra note 33, at
'
Gabel supra note 10, at 265.
See S~hlegel, supra note 17' at 463.
518

698
519

[Vol. 133:685
claim to neutral expertise in social engineering. 38 Both of these claims

had the effect of removing politically contentious disputes from the public realm of political debate and putting them into the hands of a small
elite, who, as a matter of sociological fact, would generally have been
white, middle-class males. 311 It does not seem as though one needs a
sophisticated anti-positivist critique of "value free social science" to see
that there was a potential "legitimacy-deficit. "tO Yet critical legal scholars have tended to draw from anti-positivist writing, and by doing so
they have been able to expose the choices that are suppressed by positivist rhetoric. This is particularly dear if one looks at the elitist personal imagery promoted by the legal realist's metaphoric statement that
the lawyer should act as a "social engineer":
The danger in such a metaphor is its definition of the social
function of reason as prediction and control; it "substitute[s]
a technocratic slogan for what ought to be a reasoned moral
choice . . . [and] assume[s] the bureaucratic p~rspective
within which-once it is fully adopted-there is much less
moral choice available. " 41
As the quotation points out, when reason is defined as prediction and
control, the2 moral and political choices that constitute "practical"
knowledge" are squeezed out by the apparent neutrality of technical
knowledge. "[P]olitics," as Jiirgen Habermas writes, "now takes on a
See t.g., THE Poucv SCIENcis viii (D. Lerner & H. Lasswell eds. 1951);
Lasswell & McDougal, Legal Educatron and Public Policy: Proftssional Training in
the Public
Interest, 52 YALE L.J. 203, 205 (1984).
11
But cf. johnson, Do You Sincerely Want to Bt Radical1, 36 STAN. L. REv.
247, 280 n.88 (1984) (claiming that a similar argument that points to the fact that
judges are " 'mostly white, male, professional, and relatively wealthy' is true but misleading. The legal elite is a group in which one finds enthusiastic support for feminism
and affirmative action, as anyone who teaches at a prestigious law school cannot help
but be aware.") (quoting Brest, Interpretation and Interest, 34 STAN. L. REv. 765,
771 (1982)). Johnson's point actually has a certain plausibility if you compare judges
to members of the electoral political elite, as he is doing in this excerpt. I would point
out, however, that the women and minorities in these "prestigious law schools" have
tended to disagree (for example, the Third World Coalition at Harvard). A vulgar
empiricist's head count of tenured women and minority faculty tends to back up the
assertion that the "enthusiastic support" mysteriously disappears around hiring time.
In judges.
any event, a Burkean trusteeship of policy scientists is even less attractive than one
of
For an account that explains the role of tech'nocracy in depoliticizing "the public realm," see ]. HABERMAS, Tht $cientization of Politics and Public Opinion, in
TOWARDS A RATIONAL SociETY 62 U- Shapiro trans. 197p);]. HABERMAS, Techno/.
ogy
and
Science as "Ideology," in id. at 81.
41
Note, supra note 7, at 1165 (footnote omitted) (quotin& C.W. MILLS, THf:
SOCIOLOGICAL
IMAGINATION 131 (1959)).
41
For a definition of "practical" knowledge, see infra note 49.
699
THE POUTICS OF REASON
!985)
.
For it is oriented toward the elimmauon
peculiarly negauve character.
( . k that threaten the system: not,
of dysfunctions and the avoidan~~ o tim
practical goals but towards
in other words, toward the rea aza ..~~ ; a pearing to be neutral to
the solution of technical problems.
p~e selected ends, the idealends or by merely offering means to reha tatu~ quo. Cost-benefit anal,
t ally buttresses t e s
ogy of technocracy ac u .
.d an excellent example. 4 4
ysis' in law and economtcs pro~t ~s~~ roved that anything can be facThe post-Coasean revoluho~ p
th wishes of future gener. 1 d' g psychtc upset or. e
f
tored in as a cost, me u m
. .
f titlements can generate e atiohs and that all initial distnbubttOns o fentransaction costs. One~ the
'
. the a sence o
h
ficient solutions, assummg
h
facts will be obscured, but t e
analyst starts juggling the figures. t es; taking the existing entitlements
. of a perfeCtly efficient
basic point remains. The analyst ts no
ffi .
.
licate the operatton
as fixed and trymg to rep
.
t the replication of an e tctent
rhark~t because, given tran~acttOn _cols s, ts Nor is the analyst putting
. 1ves changmg, enut
.
market often mvo
f . emen
. g in. social alienauon,
the "h.1dall entitlements "up for grabs, . acthonn_ k 4& Instead, the analyst takes
. . . f
class , and the kttc en sm .
.
den mJUrtes
u
if
ch
._ J
.
HABERMAS, Technology and Samet
as "Ideology"
supra note 40, at 102ed
o~ probeble~~zing
Ken~ h~
eco~~mlcsl
3
.
with this kind of theory, see
y,
0 . For the best description the
only liberal law and
bears on the wea t
Wh'l K nnedy clatms to
en
..
1 use to make the inisupra note 8. .
argument that
~ar~'Kelman's
h~s cn_uque~:r
::l~f!t~:.:~t~rinci~l1e tha\;o;;;'"i~~::OS:p~~s~~:~kfs~
Ldw
n.;8 ~u~;:e~f~;~)~
at 2R94
tial distribution of entlt emen
. n
46 U. CHI. L. EV.
d A b ts oif Economus 1
Some Uses an
us
.
.
all of the wealth m
.
h' h a smgle man owns
f h
If one starts with a sys~em ~~ w ~~rces that is efficient in the li~ht o ~a~
the society, the allocation o r~
from what it would be If ?ne a
distribution will probablyl~.s~~~~~~i~~- nevertheless, both allocahtlo~s-~:~
started with a more equa I
.' I takes for granted t e tnl
efficient. Thus, if the commo? lawi s~~pa~d duties in such a way. as to
distribution
of wealth
use . a~d
g1venasshlgnsd~
t at 1sgtribution the resulting allocation of
. . resource
opt1m1ze
resources will be efficient.
. costs and assuming

. h absence of transaction
' .
h oods
.. Coase's theorem. stat~s that m. \~al distribution of !?oods in:.a S~lety \e Set
rational economic behaviOr, giV~~ anr.JI~~~ utility-maximizing solution IS reac e .
~~d~~d~e':!h;j ;;~a~ Co~t. ~
~N. (tci~~~n
J.L. &
!s
. examp le of . this mdetermmacy
The class1c
"'c'ill
be
oase,
Kennedy's ironical
"proor that capitalism is inefficient:

t f the efficiency of capiI would like to propose t he r.oIIOWlng assess
cesmen
that owould occur. un der th e
talism: (I) Take the ai~O!:a:tlon. of r~~:~fttements, in the abs~nc~ of transexisting definition and dlstnbutlon o . .
(2) Value the subjeCtive experaction costs, and given .perfect competl!:o:ould De ge~erated by the r~~ult
iences of envy' frustration and ~age th basis what it would cos! to buy
. d'strl'bution of w'elfare, usmg as a .
(3) Value the l:ienelits to
mg 1
f
h
expenences.
.
1 f
out" the right to be free rortl .t esef b . ing them to the median 1eve o
the poorer half of the population o nng
520

700

{Vol. 133:685
a middle g.round that conceals her choice of which entitle

ment.s to
change. This strategy confers the legitimacy of science o
=-~::'i:='~;:i:~~t~h~,=~q:::
:,,~~.<=:0;.:~~
~am~
fro t e
rhetoncal structure. Both abstract certain reified entities

b'
~~a~~!~~:e~~e~ these entities, they pretend to neutraiity by' su~:~~:=~tl;
fairly ob ~ t em. Bbeut whereas the value choice in a balancing test is
VIOus, cost- nefit analy t
and thus .
. . . .
. s s can smuggle m their preferences
~ve thfeir .tm~enng With the existing distribution of wealth
the sh
am ngor o scientific rationality.
~social hfe, be they "interests" or "externalities" and h .
witho~;~~s:~~h~;cralt.ic co~s~iousncss manages to defend the status quo

just life Th.
po Icy c Oices on some utopian vision of.the good and
Is apparently "ideal-less" quality makes it different .
.
.
m an
mponant way from other contem
. ,.
power. Liberal legal thou h ~ porary syste~~ for the JUstification of
pretending that E
gd th, or example, legitimates social reality by
xxon an t e street-person are both e 1 f
~erso~s pursuing rational private goals. Much of the qua, refe, l~gal
tlsm hes in its claim to be free of any such t . power
. . o. SCientechnocratic thought claims mer 1
u opi~n VISion; mstead,
end Wh'l
.
e y to provide us With a means to an
.
I e creatmg the fantasy that
.
f
about which d
b
a pnor, ull, and frank debate
en s are to e pursued ha I d
k
sha rea ! .t~ en place, technocratic thought actually helps t d
bate oc
.
. .. o estroy t e possibility of any such deby exp~~;,!n?. Thbeldebpohtficization .of a social reality "only understood
Is su t e ut ar-reachmg It 1 d
1
transforms the old ideolo ical .
:
ea s us a ong a road that
"Public opinion , "th g bl' Imahges mto cooler, less passionate ones.
,
e pu Ic sp ere , and " bl. d . .
.
'
pu IC ecisionmaking"
give way to " pu bl'Ic opm1on
resea h " " b)'
.
ity. "~7 Finall
r~ ,
pu IC relations," and "publicy, we are presented with the irony that the presence of the
health, clothing, housing, education
.
security about the future A . ,hnu~tll_on, power m the workplace and
would cost to buy out ali ol~~~~et ;elf:sts of .v?luat!on is how much it
defined as rights. (4) Value the losses
re ~Stllon~ tf they were legally
from the interferences with th~ rna k to th~ ~~~her half of the population
. r ~t e~tat e In redefining rights as in 2
and 3 above The basis of val
ers, after th~ chan e to et b uatwn IS ~ a~ t_he losers could pay the gainand subtract 4. (l) 'If thg
ack _to the.1 ~ ongm~l positions. (5) Add 2 & 3
.
e sum ts pos1t1ve cap1t r
. ffi .
g1ven perfect competition and
b . . a Ism Is me 1c1ent, even
demands its abolition.
cost 1ess argammg, and economic science
D. ~ennedy, AHistory of Law and Economi
uscnpt on file with the University of Pe
l cs 9?-1 00 (Sept: 1978) {unpublished mangoes on to point out that "(aJil of th' n~sy van_la Law Revuwj. Kennedy immediately
sc!ence cannot possibly demand, it is t~/:~~~lstake. If _the_re i~, one thing economic
mistake is the same one that devotees of Ia tll~n of capl_tahsm. !d.. at 100. But the
n See J. HABERMAS, THEORY AND P:A~I~;o~~~~cs 7a;e7makmg all the t_ime.
,
- 8, 104-05 0. VIertel
!985]
52'1
701
scientific analytic technique actually ensures the absence of the value

decision on which the technique is supposedly premised. By ptivileging
"means" we c'reate a vacuum around the choice of "ends," a vacuum
that is immediately filled by the uncritical assumptions of the existing
power structure. And since there is no legitimating picture of the good
and just life woven into the technocratic ideology, it cannot even be held
up to its own standards'in the way that liberalism, for example, can.
It is for these reasons that Jiirgen Habermas!a one of the most
influential anti-positivist social theorists, claims that the ideology of
technocracy violates our "anthropologically deep-seated interests" in'
two particular types of rationality-our practical interest in understanding ourselves and each other in social interaction, and <;mr
emancipatory interest in freeing ourselves from social constraints or belief structures that are no longer necessary (if they ever were) to individual or group survival.~' By subordinating both these interests to our
tran~.
1973); T. McCARTHY, ~HE CRITICAL THEORY OF JURGEN HABERMAS 11-15;

381 (1978).
Habermas is one of the leading lights of the Frankfurt school of philosophy.
His works are supposed to support the rationalist position in CLS, presumably because
of their broad sweep and their extensive foundational claims. But cf Kennedy, supra
note 13 (making an "irrationalist" claim about the essence of every legal dispute). Introductory works on Habermas have burgeoned recently. Unfortunately, the most lucid,
popular, and widely quoted one is also the most misleading and 'inaccurate. See R.
GEUSS, THE IDEA OF A CRITICAL THEORY: HABERMAS AND THE FRANKtURT
ScHOOL (1981). Geuss misunderstands Habermas's view of science, misstates the role
of the ideal speech situation, tries to apply a crude correspondence theory of truth to
social consciousness, and generally resorts to a sort of philosophical Bowdlerization in
order to accomplish his objective of translating continental social philosophy into the
familiar language of English analytic thought. For" a less readable but more accurate
introduction to Habermas's ideas, see G. "KORTIAN, METACRITIQUE (I 980), and particularly the introductory essay, Montefiore & Taylor, From an Analytical Perspective,
in id. at 1-21. A comprehensive summary of Habermas's ideas is given in T. McCARTHY, supra note 47, and the recent debate between Habermas and his critics provides
important material on the development of his ideas, see HABERMAS: CRITICAL DEBATES 0: Thompson & D. Held eds. 1982). I would strongly recommend three of
Habermas's books: j. HABERMAS, TOWARDS A RATIONAL SOCIETY (j. Shapiro trans.
1970); j. HABERMAS, LEGITIMATION CRISIS (T. McCarthy trans. 1975); J.
HABERMAS, THEORY AND PRACTICE
Viertel trans. 1973). The first develops critical theory in the context of the student movements of the sixties; the second traces both
a history of social legitimation and a theory of contemporary crisis tendencies; and the
third connects Habermas's concerns to the more familiar agenda of classical politics.
Habermas's most recent work, I J. HABERMAS, THEORY OF CoMMUNICATIV~: AcTION: REASON AND THE RATIONALIZATION OF SOCIETY (T. McCarthy trans. 1984),
reworks these themes to bring them in line with his recent tendency to use language
rather than work as the most fundamental trope in his epistemological armory.
"Practical" is used here in the Gteek sense of practical kno~ledge that is concerned with living morally and participating in the political life of the community. See,
e.g., A. MAciNTYRE, AFTER VIRTUE: A STUDY IN MoRAL THF,ORY 161-62, 222-25
(2d ed. 1984) (defining practical reason in terms of virtues achieving the good' for the
individual and for the community). This practical interest can only be satisfied through
o.
.,I
II
I
I
I
I
I
I
II
I
I
I
I
I
I
.I
I
522

702
[Vol. 133:685
interest in expanding the power of technical control, scientism transcends previous ideologies that justified the oppression of one class by
another. It actually justifies our oppression of ourselves by ourselves. 50
4.
Third Trace: Contemporary Legal Scholarship and the Concept

of Reason
There is a third trace that comes from the realists and forms part
of the context for contemporary critical legal theory. Legal realism has
provoked a response in the legal thought succeeding it. 51 Most of that
reaction seems to have taken the form of a compulsive attempt to sublimate, deny, trivialize, or reinterpret the conclusions about the "subjectivity" of legal decisionmaking that the realists had reached. This attempt has involved the search for new sources of objectiv}ty such as
Wechsler's "neutral principles," 52 Posner's wealth-maximizing "efficommunication and understanding, both within and between cultures, as well as by the
individual's understanding of herself. It is this interest in 'undistorted communication
that provides the epistemological orientation behind the historical, hermeneutic, or interpretive methods of gathering knowledge. These methods try to capture the meaning
of a situation for the actor concerned rather than reducing the situation to a network of
stimuli and responses, as scientistic theories of society tend to do. The emancipatory
interest, the idea that reason contains within itself the will to be free of dogma, depends
on the methods of self-reflection, such as psychoanalysis or critical social theory, that
we have developed to rid ourselves of false necessity. The idea of belief structures that
were once n~ssary to group survival but are now merely empty and repressive traditions has definite Freudian overtones. See S. FREUD, CIVILIZATION AND ITS DISCONTENTS 33-92 U. Strachey trans. 1961). It has also received strong, if historically unconvincing, support from such neo-conservative sociologists as Daniel Bell. See D.
BELL, THE CULTURAL CONTRADICTIONS OF CAPITALISM 59-60 (1976) (Puritan values, restrictive sexual mores, and community discipline areno longer "functional" today but were needed in pre-revolutionary America when small towns were cut off from
communication with others and surrounded by a potentially hostile world). Habermas's
own
explanation of the cognitive interests is given in J. HABERMAS, supra. note 47, at
191-213.
6
For writers in the Marxist and Weberian traditions this proposition reveals a
major problem. Critical theory is normally dependent on the idea of an historical subject (for example, women, or the working class) whose interests are being suppressed
and to whom the critique of existing institutions is addressed. Habermas, however, has
to address his critique to the whole human race by appealing to political values that are
also epistemological; he is claiming that a form of life (decentralized democracy in
which history is made with will and#consciousness) is being suppressed under a form of
knowledge (technocracy and the fetishism of science). In doing so he is carrying on the
Weberian tradition that explored the "iron cage" of the rationalized social world, every
corner of which has been rearranged to rellect the "logic" of productive' relations. See,
e.g., H. MARCUSE, Industrialization and Capitalism in the Work of Max Weber, in
NEGATIONS: ESSAYS IN CRITICAL THEORY 201 (1968); T. McCARTHY, supra note
47, at 382-86; M. \-'{EBER, THE PROTESTANT ETHIC AND THE SPIRIT O.F CAP'tTALISM
27 (T. Parsons trans. 1958). See generally M. WEBER, ECONOMY AND SOCIETY (G.
Roth & C. Wit~ich eds. 1968)
11
11
See Tushnet, Post-Realist Legal Scholarship, 1980 Wrs. L. REV. 1383.

See Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L.
1985]
523
Studies
Critical
703
"53 or Michelman's Rawlsian reinterpretation of rights.~~~ It a~so.

crency'
'f
. If in the attempt to turn dr'sputes about substance mto
. . drs.
d Ch
)cui or about process and Jurrsdrc-.
mam ests use
putes about. process (El~ anB
oh~r r the nature of the particular
ut w a eve
f l l
. (Hart and Sacks).
tl9n
.
.
ega
1. clear the contemporary modes o
manifestatron, one thmg ~
f. th political right and the political
e
.
)
h that express the vrews o
thoug t
.
d liberal natural law, respectively are
center (law and economrcsf afin d:
~n objective basis for legal
devoted to the task o
m mg
<
decisionmaking.57
b of ways in which one could explain the fact
There. are a num er.
o anal ze the "subjective" side of law
that left-wmg scholars wrsh. t
. : to ignore that subjectivity or to
while centrists and conse~a~~::iv:rys The simplest explanation would
.
I by aP.search for new ,sources o o ~
. d .m dr'scussing the first and second traces: on y
.
be the one rarse
REV. 1 (1959).
OF LAW (2d ed. 1977). For a discussion
.. Set R. PosNER, EcoN.o.MIC ANA~:.!~tive economic analysis, see Posner, sup:a
of the distinction between posltlve and n
I f policy oriented economic stud1es
the B;by Shortage, 7 ]. LEGAL
note 44, at 284-87. For a Kafk~%qu;,~~~=lcse
analysis,.see Landes &. Po;ner, l ~ b b'es from natural to adoptive parents). But s~e
STUD. _323 (1978? (argumg or sa t ? ah~t li recommendations based on economiC
Posner, supra note 44, at 286 (argulhng.t
pof tcyhe adequacy of economics as a norma. d
.. . . nescapably t e ISSUe 0
rI
h
t' functl'ons of economtc analysts o aw, see
analysis o not raise I
") F
't' es of t e norma 1ve
d
b.
uve system . or Cr1 lqu
_98
(1977);
Kennedy,
Form
an
u
97
R. DwoRKIN, TAKING RI?~ ~ER!~~~~ RV L REv 1685 (1976); Michelman, A
stance in Private Law Adjud~eatwn, f ~ ... 'n L~w 46 U CHI. L. REv. 307
Comment on Some Uses and Abuses o
. !lo~~cs t~e Eco~omic Theory of Law, 62
(1979); Michelman, Norms a;d Norm~t~~~q~es of the politically "tilted" nature of
MINN. L. REV. 1015 (19~8). or ge~era cn . see Baker, supra note 8; Horwit~,
both positive and normauve economic am~~sls, p
te 8 Leff Economic Analysu
supra note 8; Kelm~n, supra note~;~~:
~A.r~.n~Ev . 451, '477-81 (1974).
of Law: Some Realum About Nom~na u , titutional Welfare Rights: One View of
.. See Michelma~, fn PursUit ofLC~:v 962 (1973). Michelman's cultured atRawls' Theory of Justice, 121 U. P~. . to c~nstitutional law actually does grapple
tempt to apply an abstr~c;t m~r.al} eo;y b'ectivit The most fascinating successor to
with the questions of pohucal .ult Dan ~~ ~I m/;here are clear, unambiguous, and
legal realism is Ronald Dworkm. . wor m c/:hat 'ud es enforce. Since the legal. syscoherent political rights that pre-e~tsdt law ahn
t Jble gconllicting and indetermmate
I. p emue on t e uns a ,
.
d
tern's need for neutra lty IS r
D
k' ,
ve Is breathtaking in Its au acuy
I I d ments
wor m s mo
d
d
nature of non-lega v~ ue JU g . '
hilosophers of science ha answere.
and implausibility. ~t Is. ~lmo~t a~ t.f co~te~J:~~~y fo have received their knowledge dlskepticism about sctenuftc obJeCtlVlty y
g53 t 81-130
a
od S R DwoRKIN supra note

rectly from G et
'
HE NATIONAL PoLITICAL PROCESS
See J. CHOPER, juDICIAL REVIEW AND T980 . see also Parke'r, The Past of
(1980); j. ELY, DEMOCRACY AND DISTRUST ( S . J 223 (1981) (criticizing proConstitutional Theory-and Its Future, 42 OHIO 1. . .
:r
lo'
)L
cess theory).
THE LEGAL PROCESS: BASIC PROBLEMS IN THE
See H. HART & A. SACKS,
d 1958)
MAKING AND APP~IC.ATION OF LAW. 3-6 h~t~n~h~s ~as ha~pc:ned, see Tushnet, supra
.. For a descnpuon of the way m w tc
note 32, at 1210-14; Unger, supra note 2, at 574-76.
524

704
[Vol. 133:685
pear_ing to be objective could law appear to be ~eparate from politics.

Leftists have tr~ditionally seen this search for objectivity as merely another way to re1fy the current arrangements of society so that they appear to be both natural and neutral, and thus to remove social and
political choice from individuals. 118 Centrist and right-wing scholars, on
the other hand, have always nursed dark, Hobbesian fears of the slippery slope to anarchy or fascism, a slippery slope that is at present
walled off by a fragile belief in a government of "laws not men."G& It is
these fears that form the anxious counterpoint to their paeans of praise
for the rule of law.
On this view critical legal scholars recognize, while other schola
.
.
rs
eny, mmJmJze, or Ignore, the "politics of law." Thus the tension in
today's legal theory can be understood simply by looking to the lib 1
r 1 .
era
po 1t1ca VISion that sets the stage for this conflict by insisting
0n a
H bb
60
o es1an VIew of human nature, a subiective theory of value e1 d

f "
:.J
,
an
a VISion o neutral law" to reconcile the two. 62 But if we go still f _
th "" " h l"b I
ur
er mt~ ~ e 1 era world view, we can say that the tension in legal
scholarship Is not so much that between law and politics as it is between reason and passion, or reason and will. 83 After all, politics is
seen as the clash of passions, while law has long been identified with
rea~on, artificial ~r not. ~ur explahation might claim that the postEnl~ghtenme_nt epistemological paradi?m6 had promoted a politically
factiOnal
notiOn of reason, a notion of mstrumental rationality based on
66
d.
pre IctJon and control. Such a view of rationality would define it If
b
..
h
se
Y oppositiOn to_ t e transcendental, superstitious, or mythical view of
the world t_hat Jt spent most of its time attacking. Consequently, it
would
?Im? _to the way that a demystified, rationalized society could
constram
Its
Citizens in exactly the same way that a barbarous and su _
..
perstitJOus
world had done:
d
?e
supra note 33 at 28-29 .

sSeeee Gabel,
Wechsler, supra note '52 at 12.
..
'
See MacPherson, Introduction to T. HOBBES, LEVIATHAN at 9-63 (1968)

See R. UNGER, supra note 5, at 88-103.
See id. at 167-70.

81
h. ~ee Forbath, supra n?te 2, at 1043, 1048-49 (mentioning tension in legal scholars 'P tween reason and will and concluding that element of reason in law has rad'
cal. t:ansfor?tatory potenti.al that could be redeemed by critical legal scholarship an~
poht~~al acuon); see also znfra note 106 and accompanying text.
For the role played by paradigms in the evolution of scientific research see T
KuH:,, THE.STRUcruRE OF SCIENTIFIC REVOLUTIONS 10-22 (2d ed. 1970). ,
.
..The Idea th.at re~son ha~ be~me reified as prediction and control is only one of
the cnuques .o_f rauonahty. I bnng It out here because of its connection to the second
tr~~e-the cnu9ue o_f techn~racy in legal decisionmaking. For a discussion of the other
critiques of rauonahty, see znfra notes 99-100 & 141-44 and accompanying text.
THE POliTICS OF REASON
1985)
525
705
In the enlightened world, mythology has entered into

the profane. In its blank purity, the reality which has been
cleansed of demons and their conceptual descendants assumes
the numinous character which the ancient world attributed
to demons. Under the title of brute facts, the social injustice
from which they [sic] proceed is now as assuredly sacred a
preserve as the medicine man was sacrosanct by reason of
the protection of his gods. It is not merely that domination is
paid for by the alienation of men from the objects do~inated:
with the objectification of spirit, the very relatiOns of
men-even those of the individual to himself-were bewitched. The individual is reduced to the nodal point of the
conventional responses and modes of operation expected of
him. Animism spiritualized the object, whereas industrialism
objectifies the spirits of men. Automatically, the econ~~ic
apparatus, even before total planning, eqm_ps co~od1t~es
with the values which decide human behavior. Smce, with
the end of free exchange, commodities lost all their economic
qualities except for f~tishism, the latter has extended irs arthritic influence over all aspects of social life. Through the
countless agencies of mass production and its culture the conventionalized modes of behavior are impressed on the individual as the only natural, respectable and rational ones. 66
If as Horkheimer and Adorno suggest, the very concept of reason

a political tilt, then scholarship that searches for objectivjty
may merely be conferring an extra authority on social practices whose
contingent character is obscured by the very reasons ~~ed to support
them. Thus to understand the projects undertaken by critical legal theorists we need to understand more than the liberal ideal of "a government of laws and not men." We need to understand the metaphysics of
twentieth-century thought and the politics of reason itself. How ironic
that this conceptual explosion should be pro.voked in legal thoug~t by _a
group of scholars, some _of. whom Il1erely w1~hed to ,:epla~e _the artJfi,~
cia! reason" of a formalistic common law with the predictive reason
of an enlightened policy science.
assum~s
5.
Summary
Legal realism provided critical legal scholars with many of their

88
M. HORKHEIMER & T. ADORNO, DIALECTIC OF ENLIGHTENMENT 28
Cumming trans. 1972).
u.
r .
526

706
Criticlzl
[Vol. 133:685
arguments and the CLS

.
had already been "infect~~?~e:tit;as ~~de easi_e~ because the legal elite
. hrea rsm. Cntrcal legal studies, however, has transcended re I"
.
a rsm m t ree ways ea h 0 f h" h
trace to be taken up a . . h
c
w rc provrdes a
F"
..
gam m t e second part of this Article
rrst, cntrcal legal scholars have
h d b
. .
cial-theoretical analysis of the r . pu; le eyond reahsm into a sotwo
.b
.
po urcs o aw. They have done this in
:Way~. Y analyzmg the role that the myth of "neutral Jaw" 1
1egurmatmg legal discourse and by e
. .
h
p ays m
system translates a politically loaded ::~~~mg I~ e. way that the legal
~~::!~i~~~k~~ger:~i:n~sseig1n1_ sk orLidehologi~;~;~;;~~s:n;~ :t;:~r~o~~s~e~

.
oc ner v Hew y0 k'7
~las and bad logic; critical legal theory ~ould alsor
Id
wou h see class
~~~h~f s:~et ~f con~r~dictions that beset the liberal ~~:v~~ ~h~ :;~t:e:~
cal system ~/~~e ~~:I:~~;~al the~rist~ have argued that the semiolo~i
clusters" that function to "cleoa~~ yhze a~ merely one of many "beliefse t e social world b
k"
natural or neutral.'
Y rna mg u seem
Second, critical legal theorists have re"ected th
. ,
tempt to reconstitute the ne t I"
f h 1
e legal reahsts atu ra Ity o t e legal s t
.
argument balancing of
ys enr around pohcy
mterests, or the supposed! b" .
.
.
7o I
.
y o ~ective expertrse
of pohcy scientists trained as I
brought a varied set of .. awyers. n particular, CLS writers have
cntrques to bear on th
.
. e current 1aw and economics scholarship to ex ose the
politically contentious pr~posal ~~y ~n whrch that scholarship masks
of microeconomic analysis.n ;h:l ai~ e ;upposedly _neutral legitimacy
show that an appeal to "w Ith
. _o these cntrques has been to
ea
maxrmr t "
tion of a set of signs de . d
za IOn Is JUst another invocasrgne to convert po
h .
h we: _mto aut orny, another
appeal to false necessity In th.
.
rs sense t e cnucal arguments are the
u.s. 45 (1905).
s198
ee Kennedy, Toward an
87
Historical U d
.
The Case of Classical Legal Thought in Am n_ ersta8ndmg of Legal Consciousness:
LAW AND SOCIOLOGY 3 (S. S itzer ed 19 enca, _1 50-/940, in 3 RESEARCH IN
demonstrates how classical legapl
.
SO) (ar~um~ that examination of Lochner
t r .
consciOusness provld d
. fi f
ua lzmg, and thus limiting contrad t"
d
e specl IC ramework for concep
.

'
1c 10ns an tensio
h
h
to pe~.ce1ve
m legal systems).
ns t at t e 1egal elue were likely
See Gordon, supra note 2 at 281 287 92
70
SeeRU
' - A. U
. NGER, supra note' 5 at 88-103
d
.
.
s nger escnbed u:
T
. .
'
he charactensuc predicament of the
.
stan~ly about policy, as if rational choi~odern lawyer ~~ to argue conpoSSible, yet to remain faithful to th "d
among compeung values were
the political doctrine of which th ~dl e~ that values are subjective and to
.
d"
.
at
1
ea
1s
a
pan The
d
.
of a d~u 1cauon is simply the th
.
purpos1ve octrme
contradiction.
eoretlca1 statement of this everyday
/d. at 95.
"S
ee, e.g., supra note 8 (sources criticizing law and economics scholarship).
1985]
527
StudieS.
701
same as those directed against the ideology of neutral law. However,

the particular characteristics of technocratic as opposed to formalistic
argument demand more localized sources of theoretical inspiratidn.
Jiirgen Habermas's work on cognitive interests seems to be a good
starting place.
Third and finally, among the descendants of legal realism, only
critical legal scholars are attempting to deal with the politics of reason.
They alone appear to be concentrating on the idea that is the common
obsession of feminist theorists,n literary critics,73 and philosophers of
science, 74 language,71 and art: 78 that the, very concept of rationality has
become problematic. This may seem to be a very abstract and philosophical preoccupation for legal scholars, particularly those supposedly
concerned with political action. Yet our three "traces" have already
given us one good reason to believe that such a focus is both necessary
and desirable. After all, the ideas that CLS carries on from legal realism are those that deal on a very mundane level with rationality and
the social construction of knowledge. The two central legal realist arguments depended upon a critique of essentialist rationality in linguistic
interpretation and a,defense of the essential rationality of science. Thus
the judge was supposed to give up playing with words and to begin
71 See, e.g., C. GlLUGAN, IN A DIFFERENT VoiCE:. PsYCHOLOGICAL THEORY
AND WoMEN's DEVELOPMENT (1982); MacKinnon, Toward Feminist jurisprudence,
34 STAN. L. REV. 703 (1982).
71 For an example of literary criticism questioning the concept of rationality, 'See
generally DECONSTRUcriON AND CRmCISM (G. Hartman ed. 1979).
14 See P. FEYERABEND, REALISM, RATIONAUSM, AND SCIENTIFIC METHOD
(1981); Macintyre, Epistemological" Crises, Dramatic Narrative, and the Philosophy
of Science, in PARADIGMS AND REVOLUTIONS 54, 55-59 (G. Gutting ed. 1980).
I draw ideas about the breakdown of rationality in the study of linguistic philosophy from an interpretation of Wittgenstein's later works, an interpretation that
Wittgenstein did not seem to share. See L. WITTGENSTEIN, supra note 28. Other contemporary understandings of a-rationalism in the philosophy of language draw more
heavily on J. DERRIDA, OF GRAMMATOLOGY (G. Spivak trans. 1976); M. FouCAULT,
THE ORDER oF THINGS (1970); M. FouCAULT, LANGUAGE, CouNTER-MEMORY &
PRACTICE (D. Bouchard ed. 1977). In fact, it seems that the success that such writers
as Foucault and Derrida have had in Britain and the United States is partly due to the
particularly corrosive effect that the post-Wittgensteinian view of language has had on
all the academic discourses within those countries. Paradoxically, philosophers of language seem to be largely unaware of the role that an anti-essentialist linguistic theory
plays in "dectntering the S'ubject." In a forthcoming essay, I attempt to deal with the
breakdown of. essentialist theories in jurisprudence, science, art, and mathematics. In all
of these areas, one could say that the anaesthetic hold of essentialism is broken at precisely the moment when it is realized that the question "What is law, art, science,
etc.?" is literally meaningless. Wittgenstein's "Outstanding contribution was that he
flushed the medieval fascination with essences from its most secure hiding-place~right
under our noses-iii the everyday objectification of linguistic meaning.
7 See, e.g. D. BELL, supra note 49, at 46-51J; Bullock, The Double Image, in
MoDERNISM 189Q...1930, at 58, 62-64 (M. Bradbury & J. McFarlane eds. 1978); see
also S. SPENDER, THE STRUGGLE OF THE MODERN 189-206 (1963).
528
Critical

708
[Vol. 133:685
529
Studies
709
THE POUT/CS OF REAS.ON
!<laS)
78
~laying with policy s~ience .. The realists did not consider the possibility
s~;t the same corros~on might be eating away .at both language and
~ ence
~~L
at the same time, although science gave less indication of this

.
If this is. true t?en the latter-day realist and the law-and-econom-
~~s devotee Will try 10 vain to shift the intellectual foundations of their
lscourse from ~anguage to technocracy. Or worse still they will appear

to succ~ed, establishing a new natural law of unq~estionable truths
su~~rtl~~ of the status quo. On either of these analyses critical legal
sc o ars lp ~ust confront the question of the politics of reason-whether 10 terms of language, of science, of literary theory or in
t~rms ofdthe ~ne network of mini-ideologies that sustain the hier~rchies
o every ay _hfe.. ~ith this in mind I turn first to the question of language and hnguistJc philosophy.
C.
Linguistic Theory
1.
Introduction
in s People w ho "d. o". Iaw spend a lot of time arguing about the mean. g of words, so It IS hardly surprising that linguistic philosophy is
17~ortant to legal theory. At the moment legal thought, like most areas
~- u~a~ knowledge,_ IS. slowly assimilating the post-Wittgensteinian
lew o anguage. '!'his IS actually not a fancy set of ideas; ve few
no seventy-five-cent words are needed 7o exp a~n lt. . he di_fficulty in understanding it lies, rather, in the f~ct that
sue ld a simple Idea has so many ramifications. In this short ~ssay I
cou not even hope to summarize the maze of arguments and counterarguments that s~rround this area of semantic theory. Instead I tr to
how a particular vision of language has influenced le al
leav10g to another article the task of defending that vision. g
y,
Eno.ug.h prologue; here is the view to whl'ch I have referred, expressed 10 Its four most simple forms:
fi[t~-c~nt;nd ~ractJcally
sho~
the~r
(1) Words do not have "essences."77

(2) Words do not have "core meanings."
(3) Language is, or can be, used in an infinite number
77
For a recent debate rovin that es

sance, see Kripke, Naming a!t Ntc~ssity . ~enuahsm undergoes a perpetual renais(D. Davidson & G. Harman eds 197 ,' m EMANTICS OF NATURAL LANGUAGE 253
at ~f'
CHo~sK~, R~FLECTIONS ON LANGUAGE
36-77 (1975). In particular see
ism, Chomsky finds Katz's 'positivistic (a~l~ Despite his cnti~is~ o~. Kripke's essentialunobjectionable set id at 42 h' h
pparently essenuahst) semantic markers"
w IC seems rather stran

S J K
T
PHY OF LANGUAGE (1966) j KATZ S
T ge. et ATZ, HE PHILOSO' '
EMANTIC HEORY (1972).
id
of ways: it is a malleable instrument for communication.

(4) That a word is most commonly used to mean X does
not mean that X is the "core," or "plain," or "essential"
meaning of that word. To look to the "plain meaning" of a
word as its "real meaning" is a special type of reification,
since it ignores the purpose for which the word is actually
being used. 78
The caveat that language can be used this way is necessary because there is
another side to the story. One of the continuing incentives to understanding the way in
which language is dependent on intention is the persistent experience of reification, the
conversion of words into things. This obviously has political as w_ell as epistemological
importance. For example, the ordinary" language meaning of "woman" may contain
sexist assumptions. Contentious political arguments can be concealed in a definitional
ascription of value: "America needs patriots, not traitors-Support the Draft." But if
one cr~ates a theory that concentrates on the possibility of linguistic freedom from these
encrustations of political meaning, does this deny the equally important experience of
reification that gave rise to the theory in the. first place? In our desire to assert the
possibility of using language with will and consciousness, we may be running the danger of contradicting, or at lea~t underplaying, the structured, pattemed, and hypostatized nature of our linguistic actions. Even the people who think about words for a
living have not dealt with this tension in an interesting way.
Both Anglo-American and Continental linguistic philosophers have been either
unable or unwilling to deal with a phenomenon that is at once structured and malleable, intentional and constrained. The French structural linguists have focused on the
reified and constraining aspects of language. Set, e.g., R. BARTHES, supra note 20; J.
CULLER, FERDINAND DE SAUSSURE 48-50 (1976). The ordinary language philosophers
have done the same, but without the element of political disapproval, while also focusing upon the role of purpose in language use. Set, e.g., J. AUSTIN, How TO Do
THINGS WITH WORDS 24-38 (2d ed. 1975); C. MUNDLE, A CRmQUE OF LINGUISTIC
PHILOSOPHY 78-90 ( 1970); Austin, The Meaning ,of a Word, in PROBLEMS IN THE
PHILOSOPHY oF LANGUAGE 151 (T. Olshewsky ed. 1969}; Austin, A Plea for Excuses,
57 PROC. ARISTOTELIAN Soc'Y 1 (1956). Wittgenstein straddled the boundary between the structuralist and intentionalist aspects of language, providing conceptual tools
to both sides. See C. MuNDLE, supra, at 158-65. Derrida has reiterated the phonetic,
Saussurean argument that it is the differences between words that allows for the possibility of ling~.aistic meaning (bat vs. pat). See J. DERRIDA, supra note 75, at 27-73. He
has placed this claim next to Levi-Strauss's argument that it is epistemological differentiation that allows for the construction of social meaning (male vs. female, raw vs.
cooked, mind vs. body, natural vs. artificial). /d. at 101-40. However, he has provided
no connection between these arguments that would, deal with the political aft by which
the signifier i> joined to the signified. In fact, he seems to think that such a connection
is neither possible nor desirable. See id. at 50. It is exactly this tension that we will
meet throughout critical legal theory.
70 The "plain meaning" doctrine in legal interpretation has a very rough analogue
in the work of the so-called ordinary language philosophers. Although these philosophers seem to recognize that the use of an utterance in context predetermines its meaning, they often speak of a "normal" usage. See, e.g., J. SEARLE, SPEECH ACTS 74
(1969). The basic criticism I would make of their insistence on common usage is that
they frequently move f~om claims about "normal" usage to claims about normatively
correct usage without realizing the extent to which this involves them in the naturalistic
fallacy. Set infra notes 154-57. Stanley Fish puts the same point in a different way. Stt
Fish, How Ordinary is Ordinary Language7, 5 NEW LITERARY HisT. 41, 45 (1973)
("Once you've taken the human values out of the language, and yet designated what
530

710
UNIVERS/1Y OF PENNSYLVANIA LAW REVIEW
[Vol. 133:685
As I sa!d, the working out of the implications of these ideas for legal
theory IS a slow task. On the most basic level this view of language
seems to undermine the picture of the neutral interpretive function of
the judicia~. eo Let. us start with a little background. Formalist theory
conceptualized the Judge as merely a conduit through which the "General Will" of statutory law flowed to reach the case at bar. 81 Alternatively, she was an objective logician who merely deduced the common
law fr?m a few uncontentious, aprioristic features of society, such as
the existence of_ a free market system. 82 Finally, if directly bound by
precedent, the judge was once more viewed as the neutral conduit
through which the words of the precedential rule were channeled into
.the case at hand. Of course, as cynical moderns, our reaction to all of
these claims _is. appropriately leery. It is not clear, however, exactly
wh~t othe~ VISIOn we have to replace the formalistic one, a point to
wh~ch I wlll return later. Critical legal thought has claimed that the
cym~l modern response is, in part, a copsequence of the popularized
vers10n of the post-Wittgensteinian view of language to which I referred, but that the full implications of that view of language have not
been realized. 83
Some. CLS scholarship ha~ asserted that liberal political theory has
as one of tts central tenets the idea that there are no moral essences. 84
Such a view makes all value judgments subjective and arbit~ary-"p~rely a matter o_f taste." How, then, could the legal system
gJVe the kmds of neutral dedsions expected of it? The formalists had
~rie~.to get around the problem that this posed for the legitimacy csf the
JUdtctal role by covertly relying on another kind of essence-the essential me,aning of words. 811 The judge was not imposing her values, or
anyone s values, but was merely interpreting the words of the law. Yet
~h~ ~ore closely one looked at law or at' language, the more the formalIstic 1dea of interpreting the core meanings of words seemed to fall
apart. The realists imagined that we could easily desert a narrow forremains as the norm, the. separated values become valueless, because they have been
removed f~om the nor?Iauve center. That is to say, every norm is also a morality, and
~hateve.r IS defined m opposition to it is not merely different ' but inferior and
messenual. ").
'??st ~gent discussion of how the subjectivity of language affects the
of JUdiCial mterpretation, see R. UNGER, supra note 5, at 92-94.
Ste B. DE MON'fi:sQUIEU, THE SPIRIT OF THE LAWS bk. XI ch. 6 at 159 (T
Nugent trans. 1949) <:'[J)ud.ges a~e no more than the mouth tbat pro~ounce~ the word~
of th~law, mere pass1ve be~ngs, mcapa~le of moderating either its force or rigor.").
Ste Mensch, The Htstory of Mamstream Legal Thought, in THE Pouncs OF
LAw, supra note 2, at 18, 23-26.
: See R. UNGER, supra note 5, at 92; Tushnet, supra note 51, at 1388.
Set R. UNGER, supra note 5, at 76-81.
" Set id. at 88-1 03.
.
~ .For t~e
ObJ~!vity
531

1985]
711
malism once we realized that there was no real meaning of a word.

Instead we would simply look to purpose more often. There was, however; a gradual realization that "looking to purpose" did not seem to fit
very ~ell with the role of apolitical decisionmaking that the liberal theory of the state had supposedly assigned to law.86 This realization was
fatal to the separation of law froln politics. Thus the line between legal
and social theory ho longer seemed self-evident-one more factor tending to collapse all discussions of legal doctrine into arguments about the
myriad conflicting visions of th<! "good life" that were prefigured in
legal rules and concepts.
. .
As I suggest in the preceding discussion, legal thought has assimilated this corrosive view of language in two main stages. I will now try
to sketch out those stages-the move to purposive interpretation and the
collapse of the law /politics distinction-and then develop tlre traces relating to the politics of reason, which will be woven together at the end
of the piece.
As I pointed out earlier,87 an insistence on purposive interpretation lay behind many, of the realist critiques. It was -by insisting} tl;tat
one always needed to look to purpose in order to interpret even the
plain meaning of words that the realists unfroze rules, shattering their
brittle rdfied form and dissolving therrr back into their constituent policy goals. The standard example was provided by an exchange between
H.L.A. Hart and Lon Fuller. Hart had tried to inoculate legal thought
against realism." As with a medical inoculation, lhe patient Was going
to be given a weakened form of the disease-linguistic indeterminacy-in order to acquire a,. resistance to it. Hart's attempt at inoculation theory accepted that words were sometimes indeterminat_e but insisted that there was a "core meaning" to every word and, provided the
judge only dealt with cases that fell in the "core," no subjectivity or
discretion was involved. Thus the rule of law was safe, if weakened,
and the judge need only have recourse tq political factors such as policy
argument in the "penumbra" of legal rules.
The example that Hart used to support his argument seemed t~e
simplest and most unproblematic of rules: "No ~ehicles are ~llowed m
the park." Surely if a quasi-formalism could be defended, th1s w~s ~he
ground most favorable for its defense. All of the problem,s of confltctmg
rules, policies, and principles, all of the problems of indefinit~ ~anguage
in other cases, and all of the difficulties involved in analogtzmg from
one case to another seemed to be avoided. In fact, it seems that one
See supra text accompanying notes 30-33 & 58-59.
07
Set supra text accompanying note 22.
Set H. HART, THE CoNCEPT oF LAW 121-32 (1961).
5j,2
712
533
Criticdl Legal Studies

(Vol. 133:685
could argue that Hart's example would prove nothing, since it ignores
all of the factors with which we would expect a theory of judicial decision to deal. But one thing seems obvious. If the formalistic picture of
adjudication cannot be defended in the application of a rule forbidding
vehicles in the park, then it cannot be defended at all. Yet it was on this
example that Lon Fuller based his counterattack.
Fuller's argument" was really quite simple. He challenged Hart's
theory of the plain meaning of words by pointing out the contextual
and purposive elements of language use. His basic point could be explained by saying that if we wished to decide whether an electric golf
cart can enter the park, we would not look for the "plain meaning" or
the "penumbra" of the word "vehicle," but would rather find out
whether the city council was worried about noise, pollution, or knocking people down. What is more, Fuller argued, if we are sure that an
automobile should be denied entrance, it is not because "automobile" is
clearly within the "core meaning" of the word "vehicle" but because,
whatever the purpose behind the rule, an automobile would appear to
be prohibited. Fuller's argument cannot be marginalized by claiming
that it is just another technique for judicial decisionmaking. He claims
that his theory; desctibes the way linguistic meaning actually works. If
he is right, then a judge who applies the ~'plain meaning" of the word
is committing the falla~y of reification 90-abstracting a meaning from
its context and purpose and treating it as though it were an external
thing, capable of value-free investigation.
Once the step to purposive interpretation had been taken, it appeared that there was no going back. "Purposes" and "intentions" were
obviously just as conceptually reified as "plain meanings." Who knows
what Congress intends? What if there are conflicting viewpoints? Can
we not take policies apan into smaller, more localized aims? In other
See Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71
HARV. L. REV. 630, 661-69 (1958).
10
~eificat~o~ or obje':li~cation is the fallacy of regarding an abstraction as a matenal thmg. Th1s IS endem1c m l~gal thought on the most mundane level. For example,
a _rule can. ?e regard_ed as a senes of reified policies, a policy can be regarded as a
re1~ed pohucal co~fl1ct, and the reification of words is a lawyer's stock in trade. In
soc1a~ thought th~ tdea was best developed by Marx. See Marx, Economic and Philosqphac Manuscnpts of 1844: Selections, in THE MARX-ENGELS READER 52 (R.
~ucker ed: 1972). In these manuscripts, Marx describes the process by which the acuons of objects come to rul~ the producers, instead of being ruled by them. Cardozo and
Humpty-DUJ~npty both pomt~d out that the word starts out being a slave to thought
and en.ds _up tts master. ~n. domg so, they ~ere.expressing the unity that binds together
!he. fetts?1sm of commod1ttes and essenuahsm m language, the power exercised by objectlfi~uon. See Berkey v. Third Ave. Ry., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926)
(speakmg of metaphors); L. CARROLL, Through the Looking-Glass, in THE ANNOTATED ALICE 269 (M. Gardner ed. 1960).
1985)
713
words, this view of language subverts the possibility of a method of

adjudication that is separable from political argument in general, since
the court must go beneath the words into the political struggles producing them. This argument is basically a caricature of _the much more
subtle thesis put forward by Roberto Unger in Knowledge and Politics.'1 It appears to- challenge the fundamental basis of the 'law /poli!ics
distinction and the liberal theory of the state. It also appears to leave
critical legal .thought at a crossroads-a choice between two kipds of
theory, oommonly referred to as rationalist and irrationalist. The first
trace that I develop here deals with the tensions within the argument
that brought critical legal theory to this. crossroads. It cona:ntrates on
the conflicts between Roberto Unger's view of,language an~ his view of
liberalism. The second and third traces could be understood as attempts
to justify the taking of one road rather than another. Whereas the second trace concentrates on the so-called irrationalist side of critical legal
thought, the theory developed in tjle third trace seems to rely on the
apparently rationalist notions of undistorted communication and the
unalienated subject.
2.
First Trace: The Two-Edged Sword of Anti-Essentialism
I have just outlined 'o11e of the standard arguments in critical legal

thought. The argument is that the theory that justified the liberal state
had a specific role for law to play, and that if words did not have essences law could nbt play that role. Law, in other words, had a certain
essential role in liberal theory. But what was liberal theory and how
could one make an anti-essentialist claim about words and an essentialist claim about law having to be neutral, objective, and so on? Let us
look to th~ most sophisticated version of this critique.
Roberto Unger's book Knowledge and Politics92 claims to describe
the "deep structure" of libe_ral thought, a structure 'that subsumes the
problems with which liberal thought is concerned, the methods "it"
uses to solve them, and the experi~nce of the world within which those
problems arid methods became intelligible. Such a structure limits the
number of philosophical positions availa~le and determines their relationships to the system as a whole.es Unger's purpose in attempting to
describe this structure is to achieve a "total critique" that is not undermined by the latent assumptions of the sratus quo that inevitably suf11
R. UNGER, supra note 5.
ld.
"/d. at 8.
534

714
[Vol. 133:685
fuse any partial criticism. 84 The power and scope of the ideas developed in the book are breathtaking; the experience of empowerment that
comes from applying its insights is undeniable. Yet by postulating a
"d
. seems to be relymg
. on a metathe eep st ruet ure, u nger sometimes
oretical essentialism to make liberalism "hold still" while the corrosive
skepticism of nonessentialist linguistic theory is poured on it. Can one
both use and deny "essences" in the same work?' Unger is aware of
these problems and attempts to overcome them. He rejects the easy
claim that he is simply developing an "ideal type," or that he is engaged in structuralist or dialectical analysis: 1111
When we proceed in such a manne~ . . . we easily delude
ourselves into thinking we are masters of a method that is in
fact still little more than a mystery. In exchange for the meretricious expedients of the dialectic, we sacrifice the chaste
and powerful weapons of logical analysis.
. . . The dismal consequence for the study of society
has been whim masquerading as revolution, for what is it
that the dialectic will not show? No wonder social theory
stands discredited in the eyes of the friends of reason. 116
Instead Unger proceeds by "analogizing the relationships among the
doctrines of liberalism to logical entailments and the conflicts among
them to logical.contradictions, with an awareness that the analogy is a
crutch to be cast off as, soon as we start to walk. " 117
It would be an overstatement to say that the argument in the book
"ne:er does learn to walk," but equally untrue to say that it completely
avotds the blask hole of irrationalist social theory that its quasi-Spin?zan style seeks to fence off. Unger is quite rig~t to argue that any
dtscourse on the theory of knowledge is also a discourse on politics, and
that any discourse on politics cannot limit itself to the social world in
which it is imbedded. Thus he is also quite right to oscillate 'between
the "here and now," ~hich is expre~sed by the antinomies of liberal
tho~ght (theory and fact, self and others, rule and value, re~son and
destre), and the "there and then" of a tentative utopia-a different soc.ial w~rld a~d a. diffe~ent mode of knowing. Yet given his "freezing" of
hberahsm, hts ~nalogtcal method, and the contingency of his oscillation
between liberalism and the theory of organic groups, he cannot hope to
avoid moving beyond the ideas with which "the friends of reason" are
..
"
..
See id. at 1-3.

See id. at 14-15.
/d. at 15 (emphasis added}.
/d ..
535

19851
715
comfortable.
So when we come t<rthe tiny portion of Unger's argument that I
describe here, we must deal with a paradox. If we are rejecting essences, we cannot< claim to have discovered the canonical, essential
structure of thought from which liberal theorists depart at their peril.
Thus we cannot claim that the structure of liberal thought contains a
sort of San Andreas fault within its jurisprudential s~ion, rendering
the whole edifice unstable. On the other hand, Unger's critique is extraordinarily powerful; the experiente of those who have applied it fes,tifies to that. 111 So what status does Unger's deep structure of liberalism
have and what does it tell us about the politics of reason? I will leave
those questions largely unresolved for the moment, hoping to 'answer
them better when I pull all of the traces together at the end of the
Article.
3.
Second Trace: Varieties of lrratfonalism
Leaving aside the tensions within the argument that brings critical
legal thought to a crossroads, it appears that, having gotten to this
point, theorists could go in one of two' directions. The' irrationalists,
those people who stress the incoherent and politically represS'ive nature
of reason, believe the breakdown of the law/politics distinction to be
emblematic of a general disintegration. One lineof argument that could
be made would emphasize the way that the law'/politics distinction
mirrors the other oppositions central to the liberal view of things, such
as the public/private and the reason/passion distinction." Thus the
collapse of these boundaries could be seen as part of an inevitable descent into a passionate, modernist ~iew of the world from which reason
is banished. Af!er all, the categories that were considered basic to our
theory of knowl.edge appeared to revolve, or could be made to look as
though they revolved, around dichotomies. Without essences (whether
of words, personality, or science), how can reason justify the lines that
it must draw between each side of these dichotomies? Deprived of a
world where law was separated from politics, form from substance, art
from science, public from private, and self from other, it seems as
tho~gh we must challenge not only liberal legalism but our very notion
.. Set, e.g., Cornell, Toward a Modern/ Postmodern Reconstruction of Ethics,
133 U. PA. L. REV. 291 (1985) (favorably contrasting Unger's critique of liberalism to
Macintyre's).
.
" This argument is derived from conversations and discussions a~ the annual t~S
conferences and from occasional lines in articles. It is intended as an 1deal-type, and m
order that this ideal-type does not also become a stereOtype I would like to point out
that no one article typifies it.
'l
,,
I'
II''I
~ ..
'I
t,,
lI.
536

716
[Vol. 133:685
of rationality.
An alternative line of irrationalist argument saw all of the boundaries and distinctions as examples of conceptual repression developed in
an unconscious attempt to mediate a "fundamental contradiction," such
as that between Self and Other. 100 In liberal legal thought and political
theory the state appears to mediate this contradiction. The institution of
civil society will enable the state to separate the good connections that I
have with other people (contracts, gifts) from the bad connections
(crimes, torts). 101 The state will step in to allow the former and forbid
or discourage the latter. It will create a set of entitlements-let us call
them "rights"-to invoke state power, hand them out to citizens, and
proceed to enforce them between citizen and citizen and between citizen
and state. Thus, by limiting itself functionally, the state attempts to
look as though it occupies a neutral intermediate position between Self
and Others.
The trouble is that the development of the mediations becomes
progressively more difficult. How can we prevent the state from having
all of the threat.ening aspects of the Other? Row can the state merely
be seen as allqwing or enforcing good interactions, such as contracts,
when it must constantly go beyond the will of the parties to rewrite
terms, imply intent, or make agreements void for public policy reasons?
When the state is penalizing bad interactions, such as torts, how can it
separate the decision about causation of harm from a decision about
. who ought to be liable? How can the state maintain its image as the
protector of pre-existing property rights when it also creates, defines,
100
537
The fundamental contradiction-that relations with others are both necessary to a?d in<;Omp~ti?Ie with our freedom-is not only intense. It is
als~ p~rvastve.. Ftr~t, It ts an. aspect of our experience of every form of
s~tal hfe. It anses m the relauons of lovers, spouses, parents and children,
netghbors, empl~ye;-; and employees, trading partners, colleagues, and so
forth. Second, wnhm law, as law is commonly defined, it is not only an
aspect, but the very essence of every problem.
Kennedy, supra not~ 1.3. at 213. See also Dalton, supra note 2, at 234-48 (placing
fundamental contradtcuon at heart of. irrat~onalist position within CLS); Kennedy,
supra.n~te 5~,,at 1725-37, 1776-77 (dtscussmg individualistic and altruistic modes of
rh.etonc m pnvate law adjudication); David Kennedy, Theses about International Law
Dtscou;se, 23 <?ERMAN Y.B. INT'L L. 353, 361-64 (1980) (claiming that international
!ega! dtscourse ts structured by a fundamental contradiction between egotistic and cooperative aspects of state sovereignty). But see Gabel & Kennedy, Roll Over Beethoven,
~6 STAN. L. REv. I, 15-16 (1984) ("I renounce the fundamental contradiction. I recant
It an~ I also recant the whole idea o.f individualism and altruism, and the idea of legal
co~sctousnes.s ..... I mean these thmgs are absolutely classic examples of 'philosophical abs.tracuon.s whtch you can manipulate into little structures."). At a later stage in
the Arucle I wtll dai.m ~h~t this renunciation can be seen as (Jn attempt to create a new
bal~nce bet~een. ~UbJecuvtsm and structuralism. The recanted ideas continue to play a
maJor role m cnucal legal thought despite their "orphan" status.
101
I take this formulation from Gordon, supra note 2, al 288.
1985]
717
and regulates property rights? In all of these examples the neutrality,

or naturalness, or intermediate quality of the state's action becomes
problematic. 101 The mediating devices that deal with these problems
are diverse and richly textured: constitutionalism and the rule of law,
will theory, reliance theory, and the doctrine of objective causation103-all of these concepts attempt to safeguard the state's role as a
neutral mediator between Self and Other. Yet once we are aware of die
unity of purpose underlying all'of the doctrinal mediations, any particular mediation is bound to seem less convincing. Just as an overuse of
special effects in a film actually functions to destroy the suspension of
disbelief, so each new doctrinal "resolution" actually. affirms the existence of the contradiction.
If we apply these ideas beyond theboundaries of legal thought we
could argue that the fundamental contradiction functions as the driving
force behind all of reason's cOnstructs and thus as the driving force
behind the construct of reason itself. In this view reason is engaged in a
Sisyphean task, perpetually plugging holes in the w~lls of our discourses, only to see the omnipresent awareness q,f the fundamental contradictio.n burst through somewhere else. People have all but been removed from the stage and the fundamental contradictiol) "thinks itself
through" using us as its instrument. Liberal theory begins to sound like.
a gigantic and insoluble chess proplem, an endless maze of set gambits
and responses, while the theorists seem to ~e relegated to the position of
the functionaries who move the pieces-a .. Blackstone to make "t:he
rights move," an Austin to try "uti}itarian formalism." This is the famous "dehumanizing" tendency. of structuralist thought, 104 a tendency
that is balans:ed by an insistence that the contr.adiction can ~nly be understood by focusing on the personal experience of the actual people
101 SeeR. UNGER, supra note 5, at 88-100 (the threat of personal domination in
the "neutral" liberal state).
101 See Horwitz, The Doctrine of Objective Causation, in THE PoLITICS OF LAW,
..
1 . . See R. de George & F. de George, Introduction to THE STRUCTURAUS~ xu
(R. De George & F. De George eds. 1972). Despite his disavowals of structur~hsm,
Michel Foucault is the "author" of the most famous statement about the decentenng of
the subject. It seems to apply by analogy to the general tradition ori which the "fundamental contradiction" scholarship draws:
One thing in any case is certain: man is neither the oldest nor the most
constant problem that has been posed for huma~ kno~ledge: . . As the
archaeology of our thought easily shows, man ts an mvenuon of recent
date. And one perhaps nearing its end.
If those arrangements were to disappear as they appeared, . . . th~n
one can certainly wager that man could be erased, like a face drawn '"
sand at the edge of the sea.
Foucault, Tht Human Sciences, in THE STRUCTURALISTS, supra, at 256, 285.
.p
538

718
UNIVERSI7Y OF PENNSYLVANIA LAW REVIEW
[Vol. 133:685
concerned. 1011
4. Third Trace: Reification in Legal Reasoning

. Another possible position in these arguments over rationality is to
VIew the collapse of boundaries, like that between law and politics as
merely the collapse of a particular view of the world and thus of ;eason. I~ ~rder to support this position one can argue that reason is not
;on~hthlc. and that there are strains of rational thought and of legal
t:nne w1th profo~ndly. emancipatory potentiaJ.loe By understanding
processes of relficatlOn, the way in which the social
ld .
"closed ,
.
. .
. .
wor 1s
w~ ~n res1st the mev1table hmaing of possibilities that resu1ts. On thls VIew, the move away from a belief in the core meanin s
~! ~?rds ~arallel~ the. reje~tion of a reified and alienating social worl~.
b I~f ~de Rei.ficatwn m Legal Reasoning, Peter Gabel provides a
eauti, u example of this kind of rejc;_ction:
~n example relevant to the development of "legal reificatlOn" ~n be tound m

any first grade classroom. It is 8:29
and. chddren
'are
.
. playing. throwing food , and generaII y engagtng m rel~tively undistorted communication. At 8:30 the
te~cher (who lS replacing the father and who, in later years
~dl be repla~~d by the judge) calfs the class to attention: it i~
time for the. pledge of 'allegiance." All face front, all suffer
th~ same .~oclal rupture and privation, all fix their eyes on a
st~ped piece of cloth. As they drone on, having not the
~hghtest comprehension of the content of what they are say~ng, they are ~on~theless learning the sort of distorted orrelfied commumcauon that is expressed in the legal form
~~~y ar~. learning, in other words, that they are all abstrac~
Citizens of an abstract "United States of America , th t
ts "l'b
a
there exls
1 erty and justice for all," and so forth-not
f~om the content of the words but from the ritual which forbids any rebellion. Gradually, they will come to accept these
101
When I pull together the t

h 1h
the tension between the ex erie . races t at
ave been developing, I hope to show
this kind of theory. For th/mom~~~l/Grsona~ and the stru~ural(impersonal sides of
dealing with the specific attempts m~d rl~lze fo~ prese~Ung thiS argument without
their thel)rizing. The general tende cy ~f t e. aut ors I cite t9 resolve this tension in
tial side of the picture. However nth~ If t ere IS one, seems to be tow~rd the experiencontradiction certainly de-emphasi~es th ocuh s on struct~re a~d. the bhnd workings of
1.,. F
e uman part m all th1s
or an example of at least the latter
Kl
..
tio11 of tht Wagntr Act and tht Ori ns oifM rmt, see are,judlctal Dtradica{izaMlNN. L. REv. 265 (1978) stt a'f:. F
o t~ L~g~l <:;o'!scw~ntss, 19J7-4J, 62
Review, in THE PoLITICS 0 ~ LAW,s;up;~e:o~~ , ::~~~~~mmatwn Law: A Critical
539

1985)
719
abstractions as descriptive of a concrete truth because of the

repressive and conspiratorial way that these ideas have been
communicated (each senses that all the others "believe in"
the words and therefore that they must be true), and once
this acceptance occurs, any access to the paradoxically forgotten memory that these are mere abstractions is sealed off.
And once the abstractions are reified, they can iio longer be
criticized because they signify a false concrete. 107
Although it may caricature Gabel's position to look at i~this way,
if seems as though we must haye some notion of undistorted communication before we can label something as "distorted" cominunication.
Admittedly, "playing and throwing food" hardly fits 'irito a Cartesian
rationalist's notion of undistorted communication. Yet in his focus on
alienation, on the lack of connectedness in ou'r society, and on the production of social myths that deny both of these phenomeha, Gabel is
working from a conception of the unalienated subject, which, in orie
sense, reflects the Enlightenment notion that reason is grounded in the
search for emancipation. 108
Gabel's quandary is this: On the one ha~d, he believes that any
legal theory must contain a phenomenology, a set of accounts that decode the Jlleaning of the situation is the subject experienced that situa.tion, instead of converting it into the reified form required by some
frozen social role. His account of the pledge of allegiance reveais the
subjective feelings that would be ignored and suppressed by more formal discourse, su,ch as a presidential announcement that sil~nt school
prayer and increased time for civics classes would. "take America back
to its roots." Similarly, we should not repress the judge's feelings of
alienation from her office, or the professor's feeling that she has to act
in a particular authoritarian manner, because "that's the way 'it' is
done." These are all parts of .social life that are excluded because the
discourse in which we deal with tl;lat aspec,t of, social reality has no
space for them. Gabel's project is to end this political exclusion of subjectivity. On the other hand, "the method must also be more than this;
lest it fall back upon the illusions of a pure and ahistorical
subjectivism. " 109
By creating a dialectical analysis that relies heavily on Sartre's
Critique of Dialectical Reason, 110 Gab~l tries to capture both the objecGabel, supra note 33, at 26-27.
Stt, t.g., M. HoRKHEIMER & T. ADORNO, supra note 66, at 3-5.
1. . Gabel, Intention and Structure in Contractual Conditions: Outlint of a
Method for Critical Legal Thtory, 61 MINN. L. REv. 601, 602 (1977).
110
J. SARTRE, supra note 12.
107
101
l'l
I
720
(Vol. 133:685
tive structures of apparent necessity and the subjective moments shaped

by those structures:
A whole grasp of the legal moment cannot be forged from a
mechaniqtl materialism that speaks of the law as merely a
"forn( "reflecting" the rigors of necessity, nor from an intuitive apprehension sittil}g smugly outside of history, ignoring
the weight of .its structured direction. It is this intervalence
toward which each movement in the theoretical investigation
must tend. 111
It is within thjs context that we must unde"fstand his account of
distorted communication or reification in legal reasoning. It seems to
me that such an account tends more to the rationalist than the irrationalist side of criticallegaJ thought, but that to put it in either category is
to restrict its meaning. Instead, I believe his work reflects, more acutely
than most, the importance to critical legal theory of the tension between
structuralism and subjectivism. I shall return to this point in part II. 111
5.
Summary
The rise of the anti-essentialist view of language was originally

seen ~ m~rely a threat to the formalistic picture of legal rules. Yet by
ushermg m an age of purposive interpretation, linguistic .relativism
see~~ to have undermined the pre-reflective notions about purposes and
pohc1es that were necessary for purposive interpretation to be credible.
Indeed, the theorists who advocated purposive interpretation were not
the only ones to underestimate the two-edged quality of such a view of
language, a I;J<>int that was amply demonstrated in the traces of this
section.
The critique of essentialism was originally conceived of as a tool
left lying around in the post-medieval linguistic deconstruction kit
which did wonderful t~ings when you plugged it into the liberal theor;
of law and state. But the tool had a nasty way of turning on its users.
After .all, essenti~lism does not happen only in language. People want
to beheve that obJeCts, events, science, social classes, genders, races, history, as well as words-that all of these things have essential qualities.
~he~ we challenge the belief in essences we do more than change the
d1re~t10n of legal theory. We open ourselves up to the fragility of the
stones we tell, the contingent, could-be-otherwise character of the film
of meaning that we project onto the social world.
111
111
See Gabel, supra note 109, at 602-03.

See infra notes 150-269 and accompanying text.
541
Critical Legal Studies ,
540
THE POUTICS Of REASON
1985)
721
In this section I derived three traces from the interaction between

this anti-essentialism and the critiques that originally depended on it.
The first trace concentrated on the idea that the absence of essences oJ
words implied the collapse of the lib~ral theory of adjudication, and
thus the legitimating theory of the modern state. Yet this idea itself
seemed to depend on a sort of essentialism; after all, i~ did invoke the
"deep structure" of liberalism. Th!ls the status of the linguistic ?"itique
of liberal legalism appears to be in doubt. Is it an attack on a dominant
mode of justificatory rhetoric? Is it a critical tool to open up space in
classroom dialogue that will not be immediately fill~d by ~ncritical liberalism? Or is it a claim to have really undermined the legitimating
theory of liberalism? I attempt to answer these questions in part II.
The second trace was an analysis of the way in which the antiessentialist critique appears to support a number of attacks on reason
itself. One possible attack relies on the argument that, without essences,
all of the current categories of reason must collapse. Another variant of
the irrationalist attack claims that reason is simply the m~sive pile of
intellectual detritus left by the collapse of prior attempts to mediate a
fundamental ,contradiction. Rather than being the musings of a Cartesian ego, reason is to be understood as a series of stories told by a
schizophrenic Hegelian world spirit, "full of sound and fury but signifying nothing."
The third trace developed in this section tried to put forward a
picture of something that might be called rationalist critical legal the11
ory. Peter Gabel's Rei.fication in Legal Reasoninlf represents an
analysis of distorted communication that has a close analogy, i~ n~t direct philosophical root~, in the critique of essentialism and obJeCtification in language. In its presupposition of an unalienated state where we
have broken free from the mythical constructs that we use at present to
suppress_rage, it provides a completely different picture than that provided by the potentially depersonalizing irrationalism of "fundamental
contradiction" scholarship. 11 ' Yet the rationalist "feel" seems more -to
do with its concentration on the individual subject than with any epistemological belief i~ trans-historical reason.
D.
Marxist Thought
1.
Introduction
Marx did not produce a large amount of legal theory and much of
Gabel, sv.pra note 33.
"' But see Gordon, supra note 2, at 288-89.
" 1
542

722
[Vol. 133:685
what he did produce sounaed like either vulgar conspiracy theory or

mechanistic determinism. 1111 Of course~ a far richer seam can be uncovered if one traces the influences of Marxist theory through a host of
other theorists, Weber and Pashukanis being the two outstanding examples that come to mind. 118 That is not my intention in this Article.
Instead I wish to give some sense of the degree to which critical legal
theory has moved away from Marxist thought and to trace the conflicts
implicated in this movement.m
2.
543
First Trace: From Conspiracy Theory to Relative Autonomy

(and Back Again?)
.
~he initial straw person against which radical legal theory defines
Itself 1s often, perhaps usually, the conspiracy theory view of law. In
this v~sion powerful groups control the state and legal system, and the
law stmply promotes their aims:
Through the emancipation of private property from the community, the State has become a separate entity, beside and
outside civil society; but it is nothing more than the form of
organization which the bourgeois necessarily adopt both for
internal and external purposes, for the mutual guarantee of
their property and interests. . . .
Since the State is the form in which the individuals of a
ru~ing class assert their common interests, and in which the
whole civil society of an epoch is epitomized, it follows that
~he Stat.e mediates in the formatfon of all common institutions and that the institutions receive a political form. Hence
1985]
723
the illusion. that law is based on the will, and indeed the will
divorced from its real basis-on free will. 118
But a vulgar Marxist conspiracy theory is incapable of making sense
out of law. Its.naive instrumentalist view of legal discourse renders it
biind to the other aspects of the legal system: the complex totality of
action and interacti9n within a normatively, meaningful discourse of
power. This deficiency provides the impetus for the -second standard
position in Marxist legal thought. This is the move away from a focus
on the wishes of the individuals who make up the ruling class and toward a focus on the objective struct~ral interests of that. class. 1111 This
view sees the econom)) as a ~ind of primal calculator and the legal system as the printm,lt. Th<;re are different accounts of the process by
which .the economic..substructure deterniines the ideological superstructure of law, morals, religion, and aesthetics, but all tend to stress the
one-way nature of the relationship ..Ecqnomy determines law and not
vice versa. "Religion, fam,ily, state, law, morality, science, a!"~ etc., are
only particular modes o( production, and fall-)Jnder its generallaw." 11ll
One respon~e to these theories of law has been to, say that they
underestimate the ~xtent to which law is relatively autonomous from
the economic base. 121 F;ollowers oE this type of theory argue that the
economic substructure does not completely determine law. According to
them, in fact, law would not have as important a role in legitimating
state power if it did not occasionally run counter to the interests of the
ruling class. 122
This response produces several possible visions, one of which is
that law is a sort of Frankenstein monster. While it was created by the
Dr. Frankenstein of the economic substructure, it nevertheless has a life
: Admittedly, part of the problem was the scarcity of references to law in
~arx s works. Marxist !~gal scholars have the option of giving a scholastic interpretauon of every word or usmg the Iext as a Rorschach blot into which anything can be.
read. See Marx, Th4 German Ideology: Part /, in THE MARXENGEL.S RFADER
suP_ra note 90, at 1,10, 118, 151-152. However, there are elements of Marx's though;
alxiu~ law that seem much.les's deter~inisti~. See Marx, On thl! jewish Question. in id.
at 24, Marx, The Econom1c and Ph1losoph1cal Manuscripts of 1844: Selections, in id.
at 52; see a!so K: MARX, T!"fE GRUNDISSE 70-73 (D. McLellan ed. 1971). For a
~ho'-!ghtful discussion of ~arx1st th.eory by a prominent member of critical legal studIes, see Tushn~t. A Marxzst Analyszs of American Law, 1 MARXIST Pt:RSP. 96 (1978)
see also H. CoLLINS, MARXISM AND THE LAw (1982); Tushnet, Book Review, 6S
CoR~1~LL L. REv. 281 (1983) (reviewing H. CoLLINS, MARXISM & LAw (1982)).
.
See, e.g., PASHUKANIS: SELECTED WRITINGS ON LAW AND MARXISM (P.
Be1r~e ~ R. Sharlet eds. ~980); M .. ~EBER, ON LAw IN ECONOMY AND SOCIETY (M.
Rhemstem ed. 1954); Cam, The L1m1ts of Idealism: Max Weber and the Sociology of
Law, 3.RE;SEARCH IN L. & Soc. 53 (1980); Trubek, Max Weber on Law and the Rise
of Capztalzsrn, 3 W1s. L. REV. 720 (1972).
11
,:
~or ~n. ~x<;?llent. int~oduc.t~ry discussion of the tension between the "Marxist''
and anu-posi!IVlst strams m crttical legal studies, see Gordon, supra note 2.
111
Marx, The German Ideology: Part I, in THE MARX-ENGELS READER, supra
note 90, at 1 10, 151. Of course, divergent interpretations can be put dn this passage.
110
The Althusserian structuralist school of Marxism now seems to have revived
the claims of Marxism as "true science." See L. ALTHUSSER, FoR MARX 182-93 (B.
Brewster trans. 1969). Instrumentalist theories of law, which see law as the instrument
of a class or form of dominatioh, often waver between conspiracy theory language and
abstract economic determinism. See geileratly R. MILIBAND, THE STATE IN CAPITALIST SociETY ( 1969).
120
Marx, supra note 90, at 71.
121
See, e.g., I. BALBUS, THE DIALECTICS OF LEGAL REPRESSION (1 977); Balbus,
Commodity Form and Legal Form: An Essay on The Relative Autonomy of the Law,
1 I LAW & Soc'y REv. 571 (1977); Trubek, Complexity and Contradiction in the
Legal Order: Balbus and the Challenge of Critical Social Thought About Law, I 1
LAw & Soc'y REV. 527 (1977). M. HoRWITZ, supra note 15, seems to straddle the
relative autonomy arid instrumentalist positions by providing a "thick description" of
modes of legal rhetoric and their use by an ascendant, as opposed to an .entrenched,
class.
111
See Gordon, supra note 2, at 286.
544

724

(Vol. 133:685
of its own and its creator only controls it within very broad parameters.121 Other visions see more of a dialectical interactiOn between superstructure and substructure, with the bourgeois ideologies of universali.ty and neutrality forcing certain structural requirements on law,
wh1le law in turn may influence economic development because the unplanned configurations of some legal form (a corporate structure or a
rule on patents, for example) pushes production in a certain
direction. 124
.
Several caveats might be addressed to this relative autonomy theory. The first caveat comes from critical legal theory's fascination with
the indeterminacy of legal doctrine. If our understanding of legal realism and of linguistic theory shows us that legal rules are wildly indefi~ite and incapable of precise application, how can the legal system be
tdted (even to a relative extent) in favor of any group or form of economic organization? The second caveat is of a more serious nature and
seems to 'entail a transformation in the theory itself. In an arti~le to
which I have referred throughout this essay, Robert Gordon gives a
fascinating account of the anti-positivist tendencies in critical legal
1211
thought. Instead of the vulgar Marxist picture that there is one layer
of reality, the economy, that is the most real and the most determinative, he suggests that reality is socially constructed. 1211 "[W]hat we experience as 'social reality' issomething that we ourselves are constantly
111
See, e.g., G. LUKACS, Reification and the Consciousness of the Proletariat in
HIS'".~:y AND Cuss CONSCIOUSNESS: STUDIES

,
IN MARXIST DIALECTICS 103 (1977).
See D. HAY, P. LINEBAUGH, J. RULE, E.P. THOMPSON & C. WINSLow, Ar.-
BION S fATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH CENTURY ENGLAND

(1 975); E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK Acr
258. (1975) ..I us~ !hompson more as an example of a Marxist theorist who turned
ag":mst .the s1mphsu~ no~wn o~ determinacy than as a believer in "relative autonomy,"
whrch, m Enghsh h1stoncal crrcles at least, was taken to mean merely an interaction
between ~h~ two levels of base and superstructure. Thompson attacked this notion with
charactensuc elegance and vitriol:
ke~p.politely to a "level" but '!Vas of every

was rmbrrcated wuhm the mode of production and product~ve reiatl?ns the~selves (as property rights, definitions of agrarian practice) and It was Simultaneously present in the philosophy of Locke it intruded ~rusquel~ wit~in alien categories, reappeared bewigged and
~~wned rn the gurse of rdeology; it danced a cotillion with religion, morallzmg o~er the th~atre of Tyburn; it was an arm of politics and politics was
one of Its arms; It w~s ":n acad~mic discipline, subjected to the rigor of its
own autonofllous l~g1c; It contnbuted !o the definition of the self-identity
both o.f r~lers ~nd of rule~; above all, n afforded an arena for class struggle, wnhm wh1ch alternative notions of law were fought out.
I found .that la_w di? not
~loody le~el;
It
E.P. THOMPSON, The Poverty of Theory or an Orrery of Errors, in THE POVERTY OF

THEORY
AND OTHER EssAYS I , 62 (1978).
liD
Su
Gordon, supra note 2.
110
See supra note 21.
1985]
THE POLITICS.OF REASPN
545
725
constructing; and this is just as trqe for 'economic conditions' as it is for

'legal rules.' " 127 The economy ceases to have the appec.trance of fateful
objectivity that a Marxist theory attributes to it. History and world
become the creation of social subjects acting collectiv~ly, rather than
being the result of ill).personal structpral determinants.
Inspired by the in~ights of phenomenolQgy, existentialism, and the
discoveries of comparative history, anti-positivist social theorists see the
Marxist efforts to locate "the engine of history" as merely another attempt to deny contingency, to take choice out of human hands and to
put it into the hands of some external, implacable forct. 128 The thinglike, immovable quality that the social worlsl assumes and that Marxist
and other determinist theories attempt t.o express must in the last instance stem from the actions of individual subjects. If all attempts to
demonstrate the logic of capitalism have failed, if efforts 'tO, link the
form of legal rules with the form of the market seem to be synthetic,
definitional, and circular, rather than analytic, empirical, and scientific,
then surely we must accept the fact that history dissolves back into the
beliefs and actions of individual people. If one is convinced by the argument so far, then ohe can see ,the truth in lhe idealist position that a
change of these belief-clusters will be an actual change of the World.
It is from this point of tension between subjective belief and objective determinacy that I will develop the second and third traces in this
section: the former being an account of "irrationalist" thought, the latter being an attempt to chart the legal profession's consciousness at a
particular historical moment and thus to explore the interaction 'of consciousness and determinism.
3.
Second Trace: The Irrationalist Approach-Sturm und Drang,

Mush, and Zap. 129
The irrationalist finds legal rules too marginal in their
effects and too indeterminate and incoherent in their content
to be instrumentally necessary for any particular social formation. Doctrine embodies contradictory ideals of freedom
for the self and security from the other so that any right to
be free from social regulation violates a right to be free from
127
Gordon, supra note 2, at 287.

See id. at 285-86.
Sturm und Drang (storm and stress): "(A] late 18th century Ge~man.literary
128
movement characterized by works containing rousing action and high emouonahsm that
often deal with the individual's revolt against society." WEBSTER's NEw CoLLEGIATE
DICTIONARY (1980). Mush and Zap, 20th century legal movement, ditto.
,1
1
'
546

726
[Vol. 133:685
social harm. Nothing in the content of the rules dictates

which side of the liberal contradiction between community
and autonomy will prevail 'in any particular instance.
Rather, legal "rationality" is based on underlying structures
of meaning, the cultural codes of "common sense" which
limit the play of analogy by categorizing similarity and difference. Legal reasoning is ultimately irrational because
there is no way to justify these categories for perception and
communication; it's just a metaphor that property is something in the world with necessary traits. . . . "Rationality"
in general refers only to a felt necessity once particular structures for categorizing the world have become frozen. The irrationalist wants to unfreeze the social structure of meaning,
to free up the possibilities for new ways to think and act in
the world. 130
In this quotation, Gary Peller makes many of the arguments said
to constitut~ the irrationalist position within CLS. He also demonstrates the way in which the irrationalist label can be misleading. This
passage contains arguments about the effect, the content, and the contradictory, irrational, and oppressive nature of legal doctrine. But the
f~undation for all of these arguments is a profoundly rationalist critique, or at least, so it seems to me. The basis for the argument is that
there is no way to justify the way that reason or law divides up the
world. To,use another of his examples, it is only rational to believe that
selli~g bonds on Wall Street and being evicted from a housing project
are, m some sense, the same, if you accept the fact that the legal metaphor ?f property links both situations. 131 Can this belief be rationally
grounded? In his insistence that rationality would have to be based on
an aprioristic meta-metaphorical system if it were to be able to play the
role claimed for it as a neutral medium in which the operation of social
power is justified, Peller is, in one sense, carrying on the rationalistic
project that has been neglected since Kant. To make this argument
clearer, I shall try to develop it in the context of the concrete assertions
in his piece.
Peller's claim is that legal reasoning is not a logical system for
deducing propositions from within the system of legal concepts. Rather,
it is a process of analogy and metaphor in which the grounding or the
Peller, IJ_tbatts Ab~ut T_htory Within Critical Legal Studies, 1 LIZARD 4-5
(1984) [on file with the Unzvtmty of Pennsylvania Law Rtviewl.
111
_G. Peller, -rhe MetaJ?hysi~ or American Legal Thought 94 [unpublished
manuscnpt on file with the Umvtrs1ty of Pennsylvania Law Rtviewl; set also Gordon
supra note 2, at 287-88 (providing similar example).
'
110
547

"FHE POLITICS OF REASON
19851
727
basis of the acceptable arguments and convincing analogies comes from

our pre-theoretical and politically constraining <;onceptions of the s~cial
world. 182 Carried to its logical conclusion this argument becomes, m a
sense an extension into the social world, and thus into the very structure ~f rationality, of Cohen's comments about the circularity of arguments within the closed system of legal concepts. 183 Such arguments, he
pointed out, will be meaningless pretisely because they are circular.. Yet
if we look closely at the social world could we not say exactly the same
thing? We have no way of grounding or justifying- the validity of th~
conceptual map that produces our perception of .the world except
within that world itself. Yet any such grounding is circular. Absent a
Cartesian or Kantian aprioristic premise that links our conceptual
structure to some transcendental base!Gust as Cohen wants to link "'ur
184
discussion of corporate liability to the real world ,of social fact),
we
remain trapped in the so-called "hermeneutic circle." 1311 Consequently,
any exercise of political power founded on the closure of metaphors (as
the legal system is) is vulnerable to the critique that "things could be
otherwise."
Whether one calls this picture of constraining metaphors in both
legal and social worlds a rationalist or an irrationalist argtJment, _the~e
is something about it that seems to contradict the idea that doctnne IS
marginal in effect and indeterminate in application. If the froze? _metapnors truly do constrain our understanding of. texts o~ our v1s~on of
political possibilities, how can doctrine be perce1ved as &~determmate?
It would seem that the objectified categories of thought'elther do or do
not limit the boundaries of acceptable argument~ The const:raint we are
now describing looks like the missing ingredient that would turn doctrine into the system of precise application that it is suppose~ to be. "'! et
the ideas of subjective indeterminacy and structural constramt are simply counterposed here, a point to which I will ~eturn in part II.
4.
Third Trace: Consciousness and Closure
Any critical legal theory that purports to explain the pro.cess of

legal argument and decision has to deal with the intersection of the
critiques given above and the anti-essentialist picture of language. The
words of the law themselves cannot be politically tilted in the abstract;
See G. Peller, supra note 131, at 32-33, 172.
See supra notes 23-28 and accompanying text.
See supra text accompanying note 21.
... For a definition or this term, see R. BERNSTEIN, BEYOND OBJECTIVISM AND
RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS 131-39 (1983).
112
133
548

728
UNWERSITY OF PENNSYLVANIA LAW REVIEW
[Vol. 133:685
our understanding of language has shown us that. Yet viewed on its

own this analysis seems to be meaningh:ss, since it implies that a rule
saying "Capitalists should always win any legal dispute" would not be
tilted. There is a confusion that must be avoided here. Law has no
interior rationality; nothing in the rules themselves dictates any particular result. But content enters law through the back door, not through
the pure linguistic connections envisaged by formalist theory but
through the limitations imposed by a deeply political set of assumptions
about the social world.
To put it another way, the. Marxist picture of law had two tiers, a
determining substructure and a determined superstructure. When we
add in an intermediate tier, the collective consciousness of the interpreting community, then we can begin to understand what counts as an
acceptable legal argument or analogy. In other words, we have to understand the socially constructed reality that filters the infinite meanings we could derive from a text. This reality is composed of two interlocking cultural codes, one social and one legal. By limiting the possible
meanings of a text, these codes provide us with something we see as the
actual meaning. The social/legal "mind-set" acts as the bridge between
indefinite words and closure of a finite, albeit fuzzy, social world. Now
it seems likely, as Gary Peller puts it, that we cannot justify the set of
categories through which we interpret the legal or the social world. 136
Thus they are "a-rational" in the Enlightenment sense of rationality.
But this does not mean that doctrine interpreted through these categories will be experienced as indeterminate or that its effects will be as
marginal as the irrationalist position suggests. 137
The scholarship that has dealt with this question has focused
mainly on the legal "mind-set" rather than the social one in which it is
embedded: 138
"Legal consciousness" . . . refers to the particular form of
consciousness that characterizes the legal profession as a social group, at a particular moment. The main peculiarity of
this consciousness is that it contains a vast number of legal
rules, arguments and theories, a great deal of information
about the institutional workings of the legal process, and the
constellation of ideals and goals current in the profession at a
given moment.
ue See G. Peller, supra note 131, at 153.
t.~. Fish, ln~erpreting the Variorum, 2 CRITICAL INQUIRY 465, 484
... s_ee,
549
(1976) (dtscussmg the relative stability of interpretive communities).

118
~ signific~nt exception is provided by G. Peller, supra note 131, which deals

wJth the mterlockmg metaphors of the social and the legal world.
1985]
729
A subsystem within legal consciousness is a kind of

structure . . . that arrange[s] relatively large numbers of elements; e.g. the Madisonian equilibrium theory of federalism.
A subsystem integrates some number of the elements i~
a legal consciousness . . .. Such an arrangement has a honzontaJ. dimension and a vertical dimension. A description of
the horizontal dimension tells us how many of all the rules
in consciousness are within a particular subsystem and the
manner in which they are related to one another. A description of the vertical dimension tells us how the more and less
abstract elements in a doctrinal area are related. . . .
One of the functions of a structure within consciousness,
and particularly of a subsystem, is the mediation_ o~ the c~n
tradictions of experience. The s~ns~ of con~radiction anses
from the persistent existence withm consciOusness ~f ~le
ments which seem mutually exclusive. These can be mconsi~tent faCts conflicting emotions, or operative abstractions
whose implications contradict one another. Mediation is die
reduction of the sense of contradiction by an arrangement of
elements that makes one proolem less salient. 139
The point I am trying to make, and with wh.i~h t.his d.escription of
legal consciousness attempts to deal, is t~at :he Irr~twnahst approa~h
cannot simu1taneously claim that our objectified. ptct~re. of t~e social
world radically curtails our freedom and that this ~b~ectificat.IOn actually does not limit the indeterminacy of doctrine as It IS expenenctd by
lawyers and judges. As a general matter irrationalists see~ t~ b~ awa~e
of this. The problem is that in order to understan~ that limitatiOn," we
have to investigate patterns of historical legal consc10usnes~. Yet by doing so we seem to risk exactly the same kind of essentialism t~at I
discussed in the context of Roberto Un~er's attempt to ana~rze. t~e
"deep structure" of liberal thought. 140 We would h.ave to s~y, . Th1s IS
the decisive structure of legal consciousness producmg the IllusiOn that
there is manifest certainty immanent in legal texts." But w_e ~o ~ot
seem to be able to say this without abandoning the ~nti-~ssen.tl.ahst side
of the story. This seems to me to b,e a crucial tensiOn .m cntlcal leg~l
theory-perhaps a productive tension, per:_ha~s not. I will return to t_his
uo Kennedy, supra note 68, at 23-24. But set Gabel & Kenn~dy_, supra note ~~~
at 15-16 (disavowing legal consciousness because, as a concept, tt ts too structu
abstract, and manipulable).
140 See supra text accompanying notes 93-99.
I!
II
f
''R
II
II
;!
550

730
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551

[Vol. 133:685
1985)
731
issue in part II.

from within; subjugated knowledges have risen in rebellion against the
5.
.I
I
Summary
As I suggested in di~cussing the first trace, Marxist theories of

l~w, whether of the conspiracy theory, structural determinist or rela
tlvely autonomous varieties, all seem to be vulnerable to
,. .
-f
the p
a cntique o
. n~acy given to economic phenomena. Paradoxically, Marx himself Is, m no small part, responsible for this critique. After all Ma
~ore tdan anyone else, heightened our awareness of the social n~tur/:;
now e ge: the lack of a clear window through whi"ch "
,
" h
1
,
a person can
see t e rea world and thus the way in which our ideas of "th
~e~, and :'the ~orld" are both parts of the same interpretive stru:t::e~
. by domg this he tended to undermine the status of his theo
least one version of h" h
H
ry, or at
. .
. Is. t eory. ow can we imagine that there is an
ob;;.ctzve set of descnptiVe/prescriptive historical laws that act on th
~u ')ects ?f t~ose laws, if "object" and "subject" are both sociall that i~
mter~u_bJectzvely,. produced categories? This switch from struc;~ral determm}sm to social creation will be further discussed in
rt II
.
The _second trace in this section took its startin
i~: fr~~ the
Ideas, wh~le ~rtraying both legal doctrine and comm~::ense as fund:~
rentally l'IrratlO.nal ways of thinkiog by which we close off possibilities
or. trans,ormatiOn
of the social world . I n d"Iscussmg
.
. trace I
d
h
th e third
poh_mtel out "tf e need to map out the legal consciousness that produces
t IS c osure I we wish to und t d h r- 1
. that makes doc.
ers an t e 'e t necessity
:~me appearb to be determinate. In other words, this trace works from
et.ensiOn .. etween the claim that legal reasoning and common sense
re_stn~t _pohucal _and social possibilities, and the claim that legal doct~ms: .Is mdetermmate and applied in wildly fluctuating ways. This tension IS not fatal to the theoretical proiect but it does
k
t d "I 1
rna e us want to
s u y e~a consciOu~~ess," and such a study appears to be rendered
problematic by the cnuque of essentialism and objectification.
E.
Conclusion
this part
I have frequently referred to the crisis of
. Throughout
.
.
ratwnahty. The corro~Ive skepticism of the modernist era, the break~~wn of ou~ metaphysical foundations, the decline of essences as credie trumps I_n the game of argumentation-all of these have been ortrayed as epistemological ravens, croaking "Nevermore"
h
p
of reason 141 At th
.
over t e corpse
.
e same ume the rationalist project has been assailed
lU
F
h
or t ~ purpose of clarity I simply mak~ this ass~nion in th~ t~xt. For thos~
who a~ int~~ted in the context oLthese suggestions~ I offer this caricatured intellectual history complete with ritual disclaimers. One way to expl;t.in this swan song of
reason is to b~ak it down to its constituent intellectual or_philosophical themes and
then to work out the variations between them. I believe that although this form of
~xplanation is imP9nant as a type of conceptual shorthand it tends to ~duce social
history to a debate between ,dead people's texts. In this footnote I have unashamedly
ta~en advantage of the shorthand quality of such an account by offering a summary of
what I take to be the "standard story" about the collapse of reason ahd. the standard
procedure of invoking theorists' names as signifie~ for a particular conceptual twist. I
try to mlnimize "tlie fallacy of intelleCtual history!' by pointing out the more glaring
problems with such a method but, due to the limitations of space, the name-as-concept
type of explanation is all I can offer he~. Being ethnocentric I start with Hume.
Hume's guillotine cut the logical links bet<veen descriptive and prescriptive arguments, at the same time that his critique of 'causality cut the links between scientific
observation and general scientific laws. One could not go from facts to truths, nor from
factJI to norms. Set generally D. HuME, supra note 1. For the most famous att~mpt to
get around Hume's critique, see B. RussELL, A :AISTORY OF WESTERN PHILOSOPHY
659-674 (19.72) (arguing that we must accept induction as independent logical p_rinciple
or science is doomed). But set E. NAGEL & J. NEWMAN, GO'DEL's PROOF 23-25
(1958) (undermining Russell's logicism in mathematics and disposing of the logieoempiricist attempt to circumvent Hume). In continental philosophy, the most famous
attempt to' refute Hume's skepticism was Kant's "critique of pu~ reaSon." Rather than
simply tacking on a resigned empiricism to the skeptical project, as Hume had done,
the Kantian and neo-Kantian philosophies attempted to crea(e an aprioristic epistemolOgy on which knowledge could be construCted. But the aprioristic categories we~ unconvincing, and the resort to pu~ lOgic seemed to ~no!mce not only contingency, but
also content or usefulness. Set, e.g., I. KANT, THE ClurtQUE OF PuRE REASON 43-45
(N. Smith trans. 1965); W. WALSH, REASON ANb EXPERIENGE (1947). Nietzsch"e's
rhetoric link~d this failu~ to the decline 'of Christianity as bOth a moral and a metaphysical/philosophical system. His biting thaxims made explicit the connection between
epistemological critique and socia1 life; in fact, the feeling of modernity that has sustained his popularity seems td' come from the feeling that both pers<)nality and society
have lost their veil of naturalness. Set, l.g., R. HouJNGDALE, NIETZSCHE: THE M.<N
AND HIS PHILOSOPHY (1965) (general review of Nietzsche's life and work); F. NIETZSCHE, BEYOND GdoD AND EVIL t9-30:(w. Kaufmann trans. 1966); F. NIETZSCHE,
Thus Spalct Zarathustra, in' THE PORTABLE NIETZSCHE 103 (W. Kaufmann ttans.
1968); F. NIETZSCHE, Twilight of the Idols, in id. at 4d3. But Nietzsche's writing also
points out tile moral dilemma~ of a thofoughgoing irrationalism, as the following gnomic comment indicates: "'Knowledge for its owfl sake:-that is the last 'snare of morality: with ihat one b~m~s completely entangle'd in it once mor~." F. NIETZSCHE, BEYOND Gooo AND EviL, supra, at 79. In thi~.remark Nietzsch~ manages to explain the
threat that relativism was going to pbse fdr the epistemological, social, and moral
proj~cts of thic time.
Two of the most -important ingr~dients of the ~ra of "relativism" were Marx's
account of the economic bas,is of consciousness and a popularized version of the Freudian vocabulary. See D. BELL, supra note 49, at 62-64 (describing importance of Freudian vocabulary); M. BIDDIS, THE AGE OF THE MASSES 58-60, 202-220 (1977)
(d~scribing impact of Marxist and Freudian ideas on popular consciousness). See generally S. FREUD, A GENERAL INTRODUCTION TO PsYCHOANALYSIS U- Riviere ed.
1953); Marx, supra note 90. But this relativism was not solely the pres~rve of radicals,
artists, and other undesirables; in fact, it was ev~ntually carried into the b~st-defended
citadels of rationality by such" intellectual developments as Wittgenstein's later linguistic
theories, GOdel's mathematics, and the physics of Heis~nberg and Einstein. See generally B. HOFFMAN, THE STRANGE STORY OF THE QUANTUM (1963); E. NAGEL & j.
NEWMAN, supra; L. WITTGENSTEIN, supra note 28.
552

732
)I
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ill
/I
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(Vol. 133:685
The moder~ist movement in art took these ideas and wove them into the fabric of
cu~tu~e by breakmg down the "forms" of rationalistic beauty, such as representational
pa~nung or the !'9th century novel. In the place of these "forms" and their conceptual
cla1ms .to repre~ent. the underlying essence of beauty, it put the "unconscious art" of
surreahs~,. t~e mstmctual liberation of Dadaism, and the unstructured poetics of free
ve~e: V1~1ma ~oolrs writing shows the epistemological revolution that this artistic
sh1ft 1mphes; the stream of consciousness" has come to replace the calm objectivities of
an untroubled narrator. Set, e.g., V. WOOLF, To THE LIGHTHOUSE (1955). Perhaps
the best known example of this process is James Joyce's Ulysses which deconstructed
the rationalist notions of both the self and the novel. Stt J. joYcE: ULYSSES (1961). Set
generally A. BARR, FANT~STIC .ART: J?ADA, SURREALISM {1936); D. BELL, supra
note 49, at 45-84 (general d1scuss1on of hterary and artistic modernism as well as popular cultu~e); .M. BERMAN~ ~LL THAT IS SOLID MELTS INTO AIR (1982) (discussion
of moderm~t hte:ature, pohucal theory, and urban architecture); M. BIDDIS, supra, at
275-312 (diSCUSSIOn of turn-of-the-century artists); A. BRETON, MANIFESTOES OF SuRREALISM (~96?) (programmatic statement by the "founder" of the French Surrealist
m?vem~nt In hterature); W. jAMES, THE PRINCIPLES OF PsYCHOLOGY 146-87 (1952)"
(d1scuss10n of stream-of-consciousness in psychology); E. LUNN, MARXISM AND MoDERNISM (19~2) (~xamination of the "mec;ting" between modernism and Marxism
through. a d1scuss1on of the work on modernism by Lukacs, Brecht, Benjamin, and
A?orno), MoD~NISM 1890-1930, supra note 76 (overall discussion of modernism,
wah an emphas1s upon the literary movements).
Aft~r 1?4~ everything is portrayed as a mopping-up operation-weeding out pocket~ of soenusuc re~JSta.nce and attempting to make the connections from this general
epistemology to SOCial hfe. Sa~re and Camus, Heidegger and Hamsun-these are only
a .few of the apostles of contmgency, those who realize that there is no reason that
thmgs should~ the way they are. Set generally A. CAMUS, THE MYTH OF SISYPHUs
(1955) (collectiOn of essays on Camus's existentialist philosophy); K. HAMSUN, HuNGER (1920); M. HEIDEGGER, BEING AND TIME 0. Macquarrie & E. Robinson trans.
SAR.T~E, BEING ~ND N~THI":fGNESS (1956); J. SARTRE, ~AUSEA (1965)
1962);
(Sa~re s nove.hsuc presentation of h1s phtlosophy of contingency). Thomas Kuhn's seductive p~rad1gms ensure .that historical relativism is finally accepted into the philosop~y of ~c1ence, b~t t~e prtce ?f.admission is a watered down "truth community" idea:
sc1ence IS what SCientists say It IS, and Kuhn believes they are worthy of our trust. See
supra_
64
the idea of the "essence" of science and replacm~ It by parad1g~s -?lst?rtcally and sociologically derived community definitions or
m1pd-sets that gUide sc1enufic research); see also PARADIGMS AND REVOLUTIONS
s'!'p~a .note 74 (collection of essays assessing the effect of Kuhn's theory upon variou~
d1sc1phnes). In the field of anthropology Levi-Strauss shows that "primitive" cultures
use conceptual tools that are as complicated as differential equations. See, e.g., C.
LEVI-STRAU&S, THE SAVAGE MIND (1966); C. LEVI-STRAUSS, STRUCTURAl. ANTHROPOLOG_Y (C: Jaco~son & B. Schoepf trans. 1963). Thus the standard-bearers of
Western rattonahsm, SCience, and the teleological notion of "Civilized Progress" no
longer s:em to po~sess. the transcendental impressiveness that has supported them up to
now. It IS almost mevnable that the late Michel Foucault, searching for a new apocalypse, should f?O one better than Nietzsche's cry that "God is dead" and proclaim the
death of man mste~d. See Foucault, supra note 104, at 256. By "man" he means that
the concept~al ~UbJect ~round whom our discourses are constructed rather than the
act~al ~hys1cal m~r~auon of subjeo-ivity, but the result is held to be just as fatal to
ra~JOnahsm. Dernda s. ~layful dogmatism recreates the whole story of philosophy as
bemg an atte~pt to prt~l~ef?e speech over writing, and thereby effectively legitimates the
hegemony of hterary cnuc1sm even more than the cry "il n 'y a pas de hors texte" had
done. See J. DERRIDA, supra note 75, at 6-26. See generally F. DAti.MAYR Tw
1
LIGHT OF SUBJECTIVITY (1981); P. FEYERABEND, supra note 74; R. RORTY, CoNsEQUE~CES OF PRAGMATIS~ (EsSAYS 1972-1980) (1982) (essays on contempor.ary philosophical problems and phtlosophers, such as Derrida).
,J
! ~UHN:,
not~
5un~ermining
1985]
553
733
conventional view of mind and world. 1411 Feminist theorists showed that
the accepted stages of moral development were actually the stages of
male development. 143 Instrumental rationality has been attacked a~ a
factional and depoliticizing mode of thought. 144 The reason/passiOn
distinction suddenly appeared to be the organizing principle for a regime of conceptual apartheid; rather than an u?problemati~ division of
self-evident spheres. In fact, the general story hne sounds hke the prolegomenon to a philosophical apocalypse.
In one sense this vision explains the CLS oeuvre ver"ll well. It
seems undeniable that at any given historical period, reason is going to
exclude certain forms of knowledge as irrelevant or irrational, and that
this exclusion will have bad political consequences. Sexism and racism,
for example, have long been defended on the grounds that. the excluded
Other lacked the essential components of reason. This tendency towards
1 think it is fair to say that the progression that. I have j~st s~etched out is a
recognizable version of the standard story about the dechne of rat10nahsm. ,S_tt,. t.g: D.
BELL, supra note 49, at 45-84; M. BIDDIS, supra, at 315-5~. Bell and B1dd1s .d1ffer,
both with each other and with me, but it seems that they gtve a roughly equ1valent
account to the one I offer here. Of course, convergence does not guarantee truth. Nor,
for that matter, does it insulate a descripti9n of this type from its own blatant ,methodological faults. Some of the most gllri~gly. obvi?us problems :Vith such an account .are:
its arbitrary selectivity, its Western b1as, Its failure to explam. when, or .why, an 1dea
will "take," its complete denial of social ~ntext, ":nd its. red~cuon of passiOnate hu~an
striving to the dry taxonomies of the ep1stemolog1cal hl.stonan .. Nevert.heless, I beheve
that it dots convey the philosophical background agamst wh1ch SOCial thought and
moral action at present proceed. This obviously does ,not me":n that most people go
around with this cluster of names inside their head, and it certamly does no~ me":n that
rationalism lias ceased io exercise social power. What it does mean, I thmk, IS that
there is an ambiguous, but general, awareness that. "correct knowledge" does not come
from an essentialist cosmic discourse, but from the JUdgment o( human actors. In order
to stave off the nihilistic implications of relativist skepticism, eff~rts .seem ~o. h~ve been
made on both a popular and a philosophica~ leve_l to ":love the cnte~~a of vahdJty away
from an abstract essentialism toward the mforrned JUdgment of t'hos~ who should
know." "Truth" has passed from Science to scientists, from Art to artists, from t~e
Essential Meaning of Words to ordinary language usage, from Rl\les of Law to prediCtions about judges, from the Novel to the author, to the readers, ~nd.then alas, to the
critics. Of course, there are problems with these ideas too. As ~ cntenon for truth, the
"informed judgment of professionals" is.not much more def~~s1ble than th~ knowledge
of Platonic Guardians, and it can be just as much of a defimuonal stop as the Eternal
Verity." Nevertheless, the closed wall of rational discourse has been brea~he~, and even
if the foppish obscurantism that has burst through 1he gap '"Seems unsausfymg, or the
recourse to truth-communities seems unbelievable, we do not have the luxury of re.
.
turning to an innocent natural slate.
, .. Michel Foucault is the originator of this useful anthropomorphic rephrasmg of
the sociology of knowledge. See M. FoUCAULT, PowER/KNOWLEDGE 79-84 (C.
Gordon ed. 1980).
.
, .
14
See C. Gn.liGAN, supra note 72; see also N. CHODOROW, THE REPRO~~c
TION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER (I 8);
Chodorow Mothering Male Dominance and CapitaliSm, iii .CA~ITAI.IST PATRIARCHY A,;D THE CAS~ FOR SOCIALIST FEMINISM 83 (Z. Eisenstein ed. 1979).
144
Set supra text accompanying notes 41-50.
''I
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closure and exclusion is the basis on which many of the CLS critiques
are founded. By exploring the connection between the accepted categories of rationality and the conventional vision of politics, critical legal
theorists have sought to fuse social theory and political practice. This is
not an entirely new approach. Georg Lukacs has written about the way
that reification obscures the interdependency of epistemology and politics.ua Karl Mannheim's studies in the sociology of knowiedge deal with
the same sort of topic; he explores the ways in which group life and the
background of cultural meaning come to shape the topographical contours of our mental world. 146 Gramsci's writings on hegemony provide
yet another example. His work investigates the process by which the
dominant common sense of a ruling class creates the boundaries of acceptable rational thought. 147 But critical legal theory is novel in two
respects~ First, it is legal thought, and, secondly, it is supposed to have
practical implications. Thus these ideas are being applied to a field traditionally resistant to all but the most mainstream of intellectual techniques, and they are linked to an insistence that theory should have
.
relevance for everyqay life.
In order to explore the implications of these novelties and to provide a toolkit for theorizing, I believe that we have to move away from
the rationalist/irrationalist dichotomy in critical legal thought. There
are three main reasons for this. First, the terms "rational" and "irrational" have become so reified that once you move beyond the kind of
analysis I have been doing up until now, they would impede rather
than aid the inqui'ry. It is one thing to try to demonstrate that technocratic decisionmaking gains political power from its implicit and explicit claims to scientific rationality. It is quite another thing to argue
whether rationalism or irrationalism is involved in Duncan Kennedy's
account of the fundamental contradiction. Is rationality supposed to refer to the accepted arguments in a particular historical period (for example, the sexist belief that women are irrational), or is it supr9sed to.
refer to some trans-historical (and unidentifiable) essence of thought?
We seem in danger of moving away from the relatively concrete claims
made by, for example, policy scientists about the neutrality of their
methods, toward a vague game of "theorist-labelling."
Second, to the extent that rationalist and irrationalist do have any
140
555
See G. LUKACS, supra note 123.

See K. MANNHEIM, IDEOLOGY AND UTOPIA (L. Wirth & E. Shils eds. 1936);
see also
P. BERGER & T. LUCKMANN, supra note 21.
14
~ See A. GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS (Q. Hoare &
G. Smith eds. 1971); J. joeL, GRAMSCI (1977) Greer Antonio Gramsci and ''Legal
Hegemony," in THE PoLITICS or LAw, supra 'note 2,' at 304.
1985)
735
useful meaning when referring to critical legal thought, they might be

expected to correspond to something like constructive and deconstr.uctive. Yet while all of critical legal theory is in one sense deconstruct1ve,
few liberal theorists h~ve made claims that are so generalized and integrated as those involved in Roberto Unger's work. 14 ~ To ~se an.ot~er
example, Duncan Kennedy's theory of the fundal~e.ntal ~on~rad1~t.10?
supposedly rests at the heart of the irrationalist posltlon w1thm cn~1cal
legal studies. Yet he goes so far as to make claims about the essence of
every legal proolem. 1411 If irrationalists are suppose~ not to make any
positive claims, then such a theory can hardly quahfy.
Third the rationalist/irrationalist dispute simply does not explore
the constit~tive tensions in a theory. At best it provides for an e~ post
facto classification in one or other of two reified' categories. It tells us
little or nothing al:iout how to theorize, or about the central problems of
social thought. Consequently, it is of little use in pulling th~. trac~s together or in providing the model for social theory t~at I .promised. 1? th.e
introduction. Thus although the subject of 'this Art1cle IS the pohtics of
reason, we are faced with the apparent par~dox that, as explanatory
categories, rationalism and irrationalism do not get us very far ..
All i~ not lost, however. Our method is to be found, not m the
abstract realm of rationalism and irrati~n~lism, but in the concrete details of the traces that I d.eyeloped in each section. If we turn back. to
these traces we can see that they all exhibited some form of confl1ct.
Roberto Unger relies on a non-essentialist vision of language, to disrupt
the essence of liberalism. Marxist theories seem to cover up one problem only to have anotper one appear, and each of ~he probl~~s seems
in some way related to the t~nsi~n between economic determm1sm, and
the conscious actions of social subjects. Duncan J(ennedy produces an
existentially based theory th51t sounqs as if it ~queezes out the po~si~il
ity of personal experience. Peter G'!-bel attempts to balance a sub~ecu~e
and an objective account of the. legal moment. Legal doctnne 1s
presented as though it is both infinitely manipulable and firmly .constrained by the reified metaphors of common sen.se and le~al consciOusness. The key to the second half of the Article IS the cla1m that all of
these conflicts can be usefully understood as in some sense the same,
and that it is by understanding, the way, in which the traces po~tpone or.
resolve such conflicts that we will be ablt; to develop a theoretical toolkit, a way of thinking about social theory and, moral action in an age of
inherently political reason.
140
140

See supra note 100.
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II.
[Vol. 133:685
LINKING UP THE TRACES
A.
Introduction
In this part of the Article I draw together the traces that I developed in the first part. I do this in two interdependent ways. First, I try
to _show how these fragments of critical legal theory could relate to anythmg so grandiose as the politics of reason or anything so mundane as
everyday moral choice, workplace activity, or political action. Second, I
argue that all of the traces are animated by a core tension between the
subje~ivis~ and the structuralist strands in critical legal thought. Apart
~ro~ helpmg us to understand or use critical legal theory, this tension
IS Important for three other reasons. It throws light on the infamous
discussions of "tilt" or "rationalism versus irrationalism" that I men1110
tioned earlier.
It is, moreover, a useful link between critical legal
thought and other social theory because it represents a tension that all
social theory must confront. Finally, it reminds us that these theoretical
problems and philosophical contradictions are only relevant in so far as
they reflect (and reflect back upon) our basic experiences of social life.
To deal with the question "Why the politics of reason?" I am
gomg to start With the na1ve experiential story of how someone might
co~e to think about this question and then work my way up (?) to
cnt1cal legal theory.
It is fairly easy to get anyone to agree that there are no aprioristic
or ~ranscen~entally neutral principles on which our knowledge or our
soc1al pract1ces are based. Easy, that is, if one keeps the claim to an
abstract level. If one gets more concrete and claims that there are no
neutral principles on which the Supreme Court can base its decisions
or that t~ere is no objective justification for the degree and extent of
power Wielded by a partner in a law firm, a teacher in a classroom or
by white, middle-class males in society as a whole, then 'the abst;act
agreement that everything is contingent is likely to be withdrawn. In its
place appe_ars a "metaphysic~ of the second-best": a grab bag of justificatory dev1ces, each appropnate to a different (and artificially delineated) sphere of action.
. Workplace hierarchies, for example, can be explained by a combination of arguments from "functional necessity," "market imperatives"
"implied consent," "property rights," and "time-honored custom." The
possible contradictions among or between these arguments-and the re0
(."'
See suP_ra ~ote IS and accompanying text. The tension also shows the truth as
well ~s the fal.sny m the arguments of those who have attacked the project of deconstructlng doctnne.
100
557

1985)
737
lation that they hold to the initial concession .that there are no uncontentious neutral principles-are not appropriate subjects for discussion.
This. metaphysics of the second-best may convince those whose
subordinate position is being justified, but there are always flashes of
denial, traces. of counter-hegemony. In the abstract, at least, i}s complacent, apologe,tic quality should have little appeal to those of us who
were reared on the theme that morality, political p.ction, and !he q4es~
for truth are inseparably intertwined. The obvious counter-strategy that
it suggests is one of "immanent critique." 1111 Every day, in c;very way,
you try to point out to the people around you that things do not h~ve to
be the way they are. As a tactic, this seems fairly respectable. After all,
it is the message of Western r~tionalism since the Enlightenment. 1112 It
offers a coherent moral position vis-a-vis the world and seems to have
the edge over the Burkean conservative thesis that things should remain
the same. 1111 Somehow it even seems more attractive than the alternative
task of developing one's cynical ennui the way 'other people develop
their suntans. Best of all, it works.
If one takes this general belief in immanent critique and connects
it to a supposedly impractical set of ideas such as social theory, a
strange thing happens. The more one "does" social theory ~nd reads
hard books, the more one comes to believe that it is actually useful and
liberating to find out about the philosophical structures behind .the
richly textured justifications for "the way things are" in every area of
social life. Even when this belief is discounted by the inexorable tendency to rationalize the worth of one's own activities, an unmistakable
feeling of empowerment remains. To use an example that interests me;
a great deal, the moves by which the ordinary language philosophers.
tried to defend their scholarly project 1114 are routinely. to be found in
101
Immanent critique, or internal critique, seeks to ~ake the c~ns~raining .assumptions of an argument, a theory. or a way of life and to pomt out their mt~rnal mconslstencies, with the aim of O(JS:n,ing up new possibilities for thought and act.ton. Because 1l
seeks to blow the argument apart from within, it seems to be less contentious than more
expansive, or positive theories. But see infra text accompanying notes 162-63.
102
See, e.g., G. BRYSON, 1MAN AND SociETY: THE SCOTTISH INQUIRY OF THE
EIGHTEENTH CENTURY (1945)~ E. CASSIRER, THE PHILOSOPHY OF THE ENLIGHTENMENT (F. Koelln & j. Pettegrove trans. 1951); j. STAROBINSKI, THE INVENTION OF
LIBERTY 1700-1789, at 10-12 (B. Swift trans. 1964).
101
Or, more accurately, that things should stay the same or ch~nge to .the.extent
necessary to maintain the stability of the system. In its purest form. th1s ~octnne IS even
emptier than the purest of radical exhort.ations to constant revolution, smce the nature
of the system is unknowable, except ex post facto wh~n history can be.retold to produce
a retrospective essentialism. True Burkean conservatism knows what IS to be con~er~ed
only after it has been conserved. See Tushnet, supra note 32, at 1215 n.38 (s1m1lar
comments about Burkeanism, with a slightly different conclusion); set also E. BURKE,
REFLECTIONS ON THE REVOLUTION IN FRANCE (1968).
104 The ordinary language philosophers tried to establish a secure basis for au-
'
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court decisions, 11111 in workplace disputes, 1118 and even in presidential

announcem~nts of "covert" wars in Central America. 1117 Knowing these
argumentative moves helps one in a limited but important way to be
more morally responsible as well as more politically effective in all of
these arenas of social power. In one sense it is the constantly repeated
experience of this kind of empowerment thatexplains an interest in the
po~itics of reason far better than a tale spun from the dry thread of
epistemology and embroidered with the appropriately impressive names
of "famous dead Europeans who once wrote about ideology." 1118
From what I have said so far, it seems as though the lack of ultimate r~t~onal grounding for our ideas is compatible with the Enlightenment VISIOn of reason: a reason that is used to break down the illusion
of necessity and that is thus "tilted" towards a love of freedom.I 119 The
thoritative linguistic meaning by concentrating on ordinary patterns of language use.
See supr~ notes 77 -7_8. Their argu~ent was that the everyday usage of English words
w~s no~ JUSt a fact; It was normative for what can, ,or should, be said. This seems a
~nfle bizarre_. Whose ordinary usage is to become the master-speak? Why should the
'fact" of pnor usage constrain th~ :ought" of future usage? As an argument, this
seems to embody the same ~aturahstic. fallacy as the claim that our absence of wings
~cans we should not fly. In Jts conversiOn of what has been said into what can be said
It exe{Ilpli~es reification-the freezing of possibilities that results when a concept be~
comes a thmg..
The judicial. ~endency to reify words is ~lmost too well known to require explanation. The defimtional stop, so b~l?ved of ?rd1~ary language analysts, is frequently
used to ~lose off or obscure the pohucal chmces mvolved in a decision. "Commerce
su~?eds. to manufa~ture, and is not a part of it," says the Supreme Court, happily
ev1sceraung the antitrust statutes. United States v. E.C. Knight Co., 156 US 1 12
~1895) (Fuller, C.J.). The argument that a monopoly of 97% of all the sugar ~r~d~ced
m !he coun.try does not affect commerce can seem reasonable only to those who see
words as thmgs, forged by the collective fiat of ordinary language users and unchanged
by purpose, context, or'even "common" sense~
110
Ad'.1spute a bo ut whether or not a woman was right to get angry about sexual
harassm~nt '? the ~orkplac~ can be "dosed" by the statement, "Well, that's a woman
fcfi' Y.ou. . It !~ prec1sely because the ordinary language understanding of "woman" is
nothmlf ltke a ~erson of female gender" that the statement can end the discussion by
appeahng
to sexJst stereotypes while appearing to state a fact .
117
P:esident Reagan could publicly discuss whetfter to announce the covert war
a~amst Nu;aragua, beca.use "covert" had becom~ a "thing" separate-from secrecy or
disclosure; m. the Orwellian la?guage of White-House-speak, it refers us away from the
present conflict ~o ~n absent time when the formal ideals of liberal democracy did not
allow overt admiSSIOn ?f such acts. Reagan can S'peak to us from his public (informal)
r_ole and ~sk for. our (mformal) prognostications about what our (formal and citizen~ Ike) reactions Will be. The roles have been emptied of real significance and the resuhmg.vacuum has sucked o~t the meanings of the words that surrounded them, leaving an
?rdmary-!a?guage meanmg that entrenches the political status quo within language
Itself. Th1s rs the same process evoked by Orwell's less audacious prophecy for the same
year, 1&8
"War is Peace."
See G. ORWELL, t984 , at 7 (1949).
I
owe
thts
phrase,
a~d m~ch more besides, to Andy Lichterman.
110
See I. KANT, What IS Enltghtenment, in KANT oN HISTORY 77 (L. Beck ed.
1963 ). McCarthy sums up Kant's position as follows: "Thus the idea of Reason encompassed the will to be ration'al, the will to achieve Milndigkeit, autonomy, and responsi11
."
559

1985]
739
ideas are compatible because you can break down a claim to correctness, naturalness, or neutrality without asserting that you have the pure.
truth yourself. Put more simply, you can claim that someone else is.
wroqg without claiming that you, yourself, are right.
If we assumed that this way of thinking was the basis of critical
legal theory, then it would be fairly easy to link up tlle traces an'd: to
explain the importance of the politics of reason. Under this assumptiq,n
the traces could all be seen as examples of deconstruqion, which seek to
slibw how the perceived rationality of justificatory structures exercises a.
political function. 180 By criticizing those justificatory structures we
"open up space to think and act in the world." 181 This method is powerful because there is legitimating rhetoric surrounding everything from
the liberal state or the social power of science, to the most mundane
work place hierarchy. But it is not only, powerful, it is also far-reaching
because it tends to suggest that "being political" should not involve a
fixation with large-scale manifestations of power, such as the state, but
instead that it would involve a merging of the large a,nd the small, the
public and the private, international politics and work, place cooP,era;tion.182 All of this would spring fairly directly from a modernist conception of knowledge, an existentialist conception of morality, and a
belief that "false closure" restricts human potential.
Presented in this way, the idea of political action through. immanent critique seems to make sense out of the bewildering variety of critical legal theory (and thus unify the traces) as well as to explain how
the theory has been constructed (<)nd thus provide the "toolkit" I promised). Nevertheless I am going to suggest that things ,are a little more
complicated and that in order to, understand critical legal thought, its
relationship to other social theory, and the fights over the politics of
reason within CLS, one must come at ..criticallegal theory from another
angle. In the end, this angle may lead us back to the idea of immanent
critique, but it will do so in a very different manner.
So far I have presented the idea of immanent critique as a powerful tool for teaching, thinking, writing, and for moral and political action. I now want to pn;sent again the same idea, but this time, instead
of using it as the starting point of our discussion, I am going to show
how it can be seen as .a mediation of a prior tension: that between
bility in the conduct of life." 1'. McCARTHY, supra note 47, at 77. But, as McCarthy
points out, this is inconsistent with Kant's other ideas. /d. Habermas has attempted to
get rid of this contradiction with his ideal speech situation. See infra note 186.
100
See Kelman, supra note IS.
111
Peller, supra note 130, al 5.
11
.'
See D. KENNEDY, supra note 14, at 76-119.
II
~
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Critical
[Vol. 133:685
subjectivism and structuralism. I do this not to devalue it, although

some people may think my argument has that effect, but to show the
rich and complex set of choices suppressed or unified beneath the monolithic fronting of legitimation theory. One way of doing so is to go
back through the argument that I presented in the first part and to
point out the places where that argument suppresses its own mediating
role.
The starting point remains the same: in the absence of a coherent
set of neutral or aprioristic premises, reason seems inescapably political.
If we think of reason as comprising all of the arguments that claim to
be correct, the modes of discourse that claim to be privileged, then it
seems that we must acknowledge that reason has a political effect. That
effect may be one of conscious justification or legitimation, or-perhaps
more importantly-of an unconscious justification that closes off sets of
possibilities before any judgment is made. A political practice founded
on immanent critique or trashing tries to expose both the political effect
and the incoherence of these legitimating belief structures. One way to
explain the astonishingly consistent success of these critiques is to reiterate the point from which we started-there is no transcendental
gr?u~ding-and thus all rational constructs can be deconstructed. Yet if
thu u true, how does the critical legal theorist difend her own construct1 Of course, she might claim merely to be doing an immanent
critique of a pre-existing belief structure, but how can she prove that
the belief structure she attacks is actually the one supporting or justifying the social practice in question? Legitimating ideologies do not come
to us ready-labelled as such, and thus all deconstructive efforts must be
based on a prior construction of the phenomena to be taken apart. In
fact, this problem is simply one manifestation of the latent tension in
the critical project between the constructive and the deconstructive sides
of the endeavor.
This tension has bedeviled most radical social theory. In each new
theoretical project it appears in a different incarnation, and it is the
local incarnation, rather than the abstract and ahistorical picture of an
essential tension, that interests me. In critical legal thought the contradiction between construction and deconstruction is manifested as a tension between what I will call a structuralist strand and 'l subjectivist
stran~.. Of course, these are only two of the infinite number of binary
oppositiOns that could be used to explain or understand critical legal
theory. I am not claiming that they constitute the "real" opposition or
anything like that. My thesis is simply that these two strands represent
a good way of "getting at" what seem to me to be some of the most
important philosophical issues and some of the most important existen-
19851
561
Studies
741
tial experiences with which social theory and political action have to
deal. 183
On the philosophical level, the subjectivist strand stresses the importance of the individual's subjective exp~ience. It develops its picture
of the social world through phenomenological descriptions of that experience.1~ A phenomenological account of a cockfight, for example~
,., In order to avoid a morass of definitions and methodological disclaimers, the
text drasticallysimplifies the constituent methods within each strand. For those who
are interested in_ the intellectual geneal~ of these ideas, I offer an abbreviated account
in the footnotes.
,.. Phenomenology is the knowledge of phenomena as opposed to that of being

(ontology), but this definition is more confusing than helpful unless it is placed in context. My understanding of the worth of phenomenology to the theoretical project draws
on Husser!, Heidegger, Merleau-Ponty, Sartre, and Schutz. Set generally F;
DALLMAYR, BEYOND DOGMA AND DESPAIR 97-98 (1981).
The original philosophical method, developed by Brentano and Husser!, was remarkable mainly for its claim that p~ilosophy could be based on a precise form of
introspection: an analysis of cognitive processes that "brackets out" wider questions of
cause, implication; or consequence. Set, e.-g., E. HUSSERL, IDEAS (1931). Through the
work of Heidegger and Sanre, this method, came to be seen as a principal component of
existentialist philosophy; it was the: everyday framework withi_n which questions of
choice:, morality, and good or bad faith were resolved. Stt J. FELL, HEIDEGGER AND
SARTRE 1-30 (1979); M. HEIDEGGER, THE BASIC PROBLEMS OF PHENOMENOLOGY
(A. Hofstadter trans. 1982); R. WATDH()USE, A HEIDEGGER CRmQUE (1981) (general introduction to Heideggc:r and a critical discussion of his works). Merleau-Ponty
explored the: mental importance of immediate subjective: perception, before that perception had been cleaned up by the filters that social convention puts on re-presentation.
See, e.g., j. MERLEAU-PONTY, THE VISIBLE AND THE INVISIBLE (1968). In addition,
Sanrc:'s ontological metaphysics made: phenomenological negation a primary constituent
of being. See, e.g., J.. SARTRE, BEING AND NOTHINGNESS, ~pra note: 141. A shorthand way to describe: what this means is to say that, in place of Descanes's "I think
therefore: I am," Sartre had erected a system of methodological doubt. As human beings
we arc: to find the source: of both our kn<lwlc:dgc: and our morals in the power of negation, the ability to negate and to reimagine existing phenomena, physical and social.
This stress on the: individual subject and on personal choice was balanced in Sanre's
work by a Marxist countc:rstrand that concentrated on the objective, external structures
of social life:. See, e.g., j. SARTRE, CRITIQUE OF DIALECTICAL REASON, supra note:
12. Thus freedom from the: overwhelming facticity or givc:nness of the: world is
presented as a basic component of being, and the abstract concept "facticity" is given
content by the specific historical description contained in Marxism.
In the handsof Alfred Schutz, the: Husserlian method underwent a further transformation. Set, e.g., A. ScHUTZ, THE fHENOMENOLOGY OF THE SOCIAL WORLD
(1967). In a parallel development to Karl Mannhc:im's investigation of the: sociology of
knowledge, Schutz used phenomenological techniques to build up a picture: of "co.nm~n
sense": the: inaniculatc: major premises that defend and reproduce the: status quo m
social life: by putting certain topicsout of the circle: of possibilities.
Out of this potpourri of phenomenologies comes the method in which I believe and
that I have "read into" critical legal studies. It has been my experience that we feel
flashes of incongruity, rebellion, cand Kafkaesque: humor c:vc:n in those situat!ons where
we: consider ourselvc;s to be most complc:tc:ly the: puppets of an abstract soc1al role.
After the: faculty meeting, "we:" 'all joke: about the way that "we:" stopped ourselves from actually being anything like: "us." The: collective: production and maintenance: of personas that we: collectively recognize to be anificial and, in some sense:,
deformed, leaves traces of rebellion that can be pulled together by a phenomenological
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[Vol. 133:685
would give us not one cockfight, but many. In fact, such an account
would give us as many different coc~fights as there were people in the
r~m. The different perspectives of owner, bettor, visiting anthropologist, the old, the young, and so on would literally constitute a set of
parallel universes, congruent narratives from which no master narrative
could be drawn. Added to, and reinforcing, this philosophical preference for phenomenological accounts is the idea of personal liberation.
By "personal liberation" I mean the vision of an individual who expresses and affirms her personhood by bu~ting free of the constraints
imposed by the reified structures of social life. In one sense, the attraction of phenomenology is that it allows us to get at the momentary
flashes of rage or denial that exist in the moment before our experience
of a situation is reformulated into the "appropriate" way of thinking.
Phenomenology thus links up our experiences of constraint or bad faith
so as to negate them in the act of liberation. And this philosophical
depiction of liberation is in turn only meaningful insofar as it manages
to evoke the actual experience of freedom, the feeling of the transcendence of constraint-not in its ethereal idealist form but as' a minor
flash o(empowerment in a factory, or a hospital, or~ law school.
Conversely, the structuralist strand focuses, unsurprisingly, on
structures. I use "structuralist" in a broader sense than its technical
usage to mean a focus on .clusters of beliefs, ideas, or economic forces
~hat supf>?sedly have their own internal logic and that somehow organIze, explam, or are reflected in the subjective experiences of those who
1811
are affected by them. To return to the example .I used earlier, Clifacc?unt. It i~ ~his phenomenology that allows us to regain the naive positiOn from
W~I_ch we ongmally asked, "Why do things have to be this way?" This apparently
tnvi~i ex~mple_ ~eveals the elements of the phenomenological method that I consider to
be VItal: Its ability to negate and reimagine, its approach to collective social contexts
throug~ ~he eyes of particip~ting subjects _(rather than through the lens of some prior,
dete~mmg structure), and Its archaeological power in unearthing the artifacts of yes~~rday s forgott~n rebellion. See ~abel & Kennedy, supra note 100, at 3 (advocating
s_mall-scal~: microphenomenological evocation of real experiences in complex contextuahzed ways ); Peller, Cultural Terrorism and tlu Faculty Cocktail Party 2 LIZARD 3
(~ 984) (example of phenomenologically based account of the politics of social
Situations).
The more es~teric sense of structuralism implies a commitment to the methods
devel~ped by such wrners. as Barthes: Levi-Strauss, Lacan, Piaget, and Althusser. In a
w~rk ~n progress I de~! WI~h th_e panicular problems, epistemological and political, that
this ~md ~f structuralism Imphes for social theory. After having written the first draft
of this Article I w~s lucky enough to see the proofs of Tom Heller's excellent piece on a
closely related ,subJect. Se~ Heller, Structuralism and Critique, 36 STAN. L. REv. 127
(1984). Helle~s method IS>to analyze the tension between esoteric structuralism and
pos~-structurahsm. One of the ~entr~l themes of his article is the decentering of the
subJ~ that a focus on structure 1mphes, a theme that he links to post-modernist deconstructiVe efforts. I tend to disagree with his arguments about the breakdown of the self
but I have reserved those disagreements for a later article. In this piece I have at:
1985]
563'
743
ford Geertz's famous description of a Balinese cockfight provides a

reading of the event that may have been far from the individual feelings
of the participants and yet that purports to capture the cultural meahing of the fight. 188 In a similar way, a Marxist description of a legal
dispute, or a feminist description of.a classroom interaction, or Duncan
Kennedy's account of the fundamental contradiction all offer a picture
of "what went on" that draws on the participant's awareness and yet
transcends it. By un.covering "what is really going on," the structuralist
strand in critical legal studies tries to exposethe constraining quality of
the structures of everyday life, which are embedded in legal decisions,
standard arguments, or in the unproblematic assumptions on which a
discussion is based. And this philosophical description of structure is
only meaningful insofar as it manages to evoke the actual experience of
constraint-the profane feeling of ijmitation by the illusion of necessity.
Notice that even to explain what the structuralist strand is, I have
to postulate some subject to whom the knowledge of structural contempted to bring out the constitutive nature of the tension between subjects and structures on a less es,oteric level, partly because I want to offer a toolkit for theory to those
with little experience (or interest) in the convoluted \ropes of French literary criticism,
and partly becaus~ I believe that an analysis rooted ih the categorits of liter:ur; theory
tends to undervalue the importance of existentialist phenomenology. But see 1d. at 13538 & 136 n.15. On structuralism, see generally T. HAWKES, supra note 20; C. LEVISTRAUSS, STRUCTURAL,.ANTHROPOLOGV, supra note 141; P. Pmrr, THE CoNCEPT
OF STRUCTURALISM: A CRITICAL ANALYSIS (1977) (theoretical discussion of the extension of the structurillisf model to fields other,than linguistics); J. PIAGET, STRUCTURALISM (C. Maschler trans. 1970) (account of structuralism in the broad context of
developments in linguistics, mathematics, biology, among other disciplines); THE
STRUCTURALISTS: FROM MARX TO LEVI-STRAUSS, supra note 104. On post-structuralism and its (arguable) relationship to other "post-isms," see generally J. CuLLER,
ON DECONSTRUCTION: THEORY AND CRITICISM AITER STRUCTURALISM (1982)
(general review of the literary movement of deconstruction); J. DERRiDA, supra note
75; I. HASSAN, POSTmodern/SM: A Paracritical Bibliography, in PARACRITICISMS:
SEVEN SPECULATIONS OF THE TIMES 39 ~1973) (a somewhat idiosyncratic review of
post-modern movements); j. KRISTEVA, DESIRE IN LANGUAGE (L. Roudiez ed. 1979)
(representative work of postmodern psychoanalytical criticism); Heller, supra, at 15598. The post-structuralist critiques that Heller explains are in one sense similar to the
subjectivist revolts against structuralism, that I describe later in this Article. See,. e:g.,
infra text accompanying notes 234-54. Heller's post-structuralism, however, exp~Ic1tly
rejects the connection of subjugated knowledges to the self and to personal expenence,
and thus refuses to put the same reliance on phenomenologically unearthed traces of
denial. See Heller, supra, at 156-57.
111
C. GEERTZ, Deep Play, in THE INTERPRETATION OF CULTURES 412 (1973).
I chose this example to emphasize the fact that I am using the term "structur~list" very
broadly. Geertz's "tltick description" is normally thought of as the opposite of the
structuralist abstractions. However my interest here lies in the claim to have penetrated
to the most basic level of what is going on. Consequently, I used the Geertz exampl~ to
emphasize that even a thick descriptive phenomenology will have to face the te~s10~
between SUbjectivism and 'structuralism and deploy mediating devices to defer It, ~f
"thick description" is coupled with an attempt to produce the lowest common denominator of subjective accounts.
564

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[Vol. 133:685
straint will be useful. Similarly, to describe the subjectivist strand I had

to rely on the vision of transcending or breaking through a repressive
structure. Yet the subjectivist strand seems to devalue structural theories py the primacy it gives to immediate personal experience and the
associated existentialist idea that, given the contingency of all philosophical and social arrangements, personal choice is the only lodestone.
The structuFalist strand takes the opposite path. By offering a convincing account of knowledge, power, and life that is largely independent of
the "intentionally acting subject," it seems to undermine the central
role that the subjectivist strand has held in the Western epistemological
and political tradition. 187 Each strand, in other words, both contradicts
and relies on the other. 188 Each contains the dangerous supplement, the
trace, of its opposite. 188
1 7
At the very least one could say that the individual will be de-emphasized by a
focus on ideological structures rather than on the "subjects" who purportedly create
them, or the "objects" that they purportedly represent. In this Article I am not going to
go beyond this point into the debate about "the death ofthe subject." But set F.
DALLMAYR, supra note 141; M. HEIDEGGER, Letter on Humanism, in MARTIN
HEI'oEGGER, BASIC WRmNGS 193 (D. Krell ed. 1977); C. LEMERT, SociOLOGY AND
THE TWIUGHT OF MAN (1979); W. PERCY, LosT IN THE CosMos (1983); Heller,
supra note,'t65, at 147-51; see also supra note 104.
1
"
In practice, all critical legal tjteories seem to me to contain both of these
strands. Thus the question is not whether a pa(licular theory is subjectivist or structuralist. Instead, the differences between the theories depend on the question of which
strand is giv~n priority, either epistemologically or temporally. By "epistemological priority," I mean that the theorist tilts tqe balance of importance towards one strand
rather than another; for example, a theory that claims to expose a deep structure of
legal ideology that, determines the consciousness of the legal elite is obviously giving
epistemological priority to the structuralist strand. By "temporal priority," [mean only
that the theorist begins her analysis by focusing on one strand and then works toward
the other; for example, an analysis of the ideology of Jaw schools that is developed.out
of a phenomenological depiction of classroom experience from a student's perspective
gives temporal priority to the subjectivist strand. The question of temporal priority is
simply the question of the starting place for an analysis. The question of epistemological priority is the question of which strand of the theory is supposed to be philosophically more fundamental.
tee Set J. CuLLER, supra note 165, at 85-225; J. DERRIDA, supra note 75, at
242-57, 269-316. Derrida's term "dangerous s1;1pplement" injects a vaguely anthropomorphic metaphor into the concept of an antinomy-two propositions that both contradict and depend on each other. The supplementarity is "dangerous" because the truce
lin.es between the two concepts are never permanently settled. We cannot define "male
qualities" except with reference to "female qualhies," but thus we incorporate a trace
of female within the male-a dangerous supplement that is always threatening to revolt
against its marginalized status. Lawyers are familiar with dangerous supplementarily
in the context of dichotomies ,such as public/private, form/substance, administration/
adjudication, and interpretation/application. For an example of legal scholarship that
uses t~e idea of dangerous supplementarily, s,ee Frug, The Ideology of Bureaucracy in
Amtncan Law, 97 HARV. L. REV. 1276, 1288-92 (1984). For examples of scholarship
that deals with these dichotomies without the Derridian metaphors, see Kennedy, supra
note 53; Kennedy, The Stages of the Decline of the Public I Private Distinction, 130 U.
PA. L. REv. 1349 (1982); Olsen, The Family and the Market: A Study of Ideology and
!985)
565
Studies
745
Earlier I said that all social theory was faced with some v.e~io~ of
this antinomian relationship and that immanent crit~que or legltlmatlon
theory was the conceptual tool by which the tensiOn was m~st often
mediated in critical legal th~ry. I hope it has now become obVlous why
this is the case. Critical legal thought oqers accounts of structures of
thought with the aim of liberating subjective potential. These structures
are postulated by the theorist and then. criticized or exploded. Yet the
critical weapons employed in the second stage could just as we_ll be u~ed
to undermine the first, structure-creating stage. In order to ~umze
the constructive part of the endeavor from its own deconstrucuve sequel
.t seems as though we might have to imagine that there are self~roclaiming structures of ideology immanent in. legal .texts. The ~eo
rist, therefore, would not be creating the repressive ~ehef stru~~re, she
ould merely be describing a pre-existin~ structur~. But th1s 1dea of
w
"self-revealing structures" appears to be parad~.
ox1 , g1ven. ~~~
.
h
h
"
I
m
meanmg
gal theory's opposition to analogous 1deas .s~c as ~ e. R.a
_
of words" or the "obvious functional requlsltes of mstttutlOnal co;ct
tence." I believe that this paradox cannot be underst~ as ~n abs a
philosophical mistake, but instead that it .must be e~ammed ~~ the coiftext of the traces that I developed in my discusslon of cnttcal legal
thought. By taking each trate and dealing with it in (differ~nt degrees
of) detail, I hope to fulfill my pro~ise to link up the tra~es m a second
and more profitable way and at the same time to deal Wlth some of the
most persistent criticisms of critical legal theory.
If we look back at all of the traces that I developed in the ?rst part
of this Article, it becomes obvious that all of them sh~re a parttcul_ar ~et
of metaphorical devices for mediating the opposition be.twee~ sub~ectlv
ism and structuralism. At the same time, each theory ts umque m the
way that it actually tries to re~olve this tensioo. Consequ:~tly' the
~or'"domg
" pohttcal thetraces present us with a number of blueprmts
ory, writing legal history, or taking. apart the social worl~. I~ or~er to
get the advantages of comprehensive "blueprint-explanauon wtthout
the disadvantage of excessive length I will concentrate on the mo_st rep ... an d will merely summanze the
. . eac h secttou
resentative traces wlthm
mediating strategies in the remaining ones.
Legal Refonn, 96 HARV. L. REv. 1497 (1983).
'i,.
I.
I.
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Critical

746
[Vol. 133:685
B. Legal Realism
1.
Introduction
In the first trace drawn out of the legal realist section, 170 I discussed the contentions that law is neither a neutral system of signs for
representing reality nor a neutral system of rules for settling social disputes. The realists tried to offset the legitimacy deficit left by these
critiques with their advocacy of technocratic decisionmaking. Yet, as I
tried to show in my discussion of the second trace/ 71 there is a powerful set of arguments to the effect that the prestige of science and the
narrowness of means-end rationality tend to depoliticize social reality
in a manner reminiscent of dogmatic theological systems. These themes
of, rationality, politics, and legitimation were repeated in the third
trace, 171 where I argued that ,one of the main splits in contemporary
legal scholarship is between those who wish to revamp the concept of
objective, neutral legal thought and those who deny that such a revamping' is either possible or desirable.
In each of these traces the subjectivist and the structuralist strands
are in tension. Two mediating concepts are used in each trace to make
the tension disappear. The first is the idea of immanent critique. Put
another w~y, the theorist claims to be merely describing a pre-~xisting
delusion. The second is the idea that by making a belief structure visible one can destroy its po,wer over the subjects concerned. We lack an
English word for this idea so I will use Brecht's term , "Verfremdung. " 178 So Verfremdung (exegesis) and immanent critique
(deconstruction) link together the individual feelings of oppression that
170

se~ supra text accompanying note 3i-SO.
1
, . See supra text accompanying notes 51-66.
, m Vnfre'!'dung (?r ~ore properly, Verfremdungseffekt) and its Russian counterpart, Ostrannue, both stgmfy the sudden feeling of alienation when one becomes aware
of the artifici~lity or u~,reality of a context. Thus Brecht's plays are full of events that
suddenly force the audtence out of the thrall of suspended disbelief by referring to the
fact that it is only a play. See F. jAMESON, THE PRISON-HousE oF LANGUAGE 58-59
(1972). By, analogy, the dc;scription of an ideological structure to the subject "affected"
by that structure, IS su~posed to render opaque what had previously been transparent,
and lhus make the subject aware that there is an element of choice suppressed beneath
the prereflective understanding that "this is the way things are." See W. BENJAMIN
What is Epic Theater, in ILLUMINATIONS i47 (H. Arendt ed. 1969); T. HAWKES:
supra note 20, at 62-63. With its associated ideas of' alienation, self-referential deconstruction, the playful deformation of basic assumptions, the making visible of the invisible, the revolt against form, and the dissolution of the barriers that separate life from
art, Verfremdung is perhaps the paradigmatic modernist idea. See generally D. BELL,
supra note 49, at 46-52. For a work that could be understood to have made Verfremdung the basis of an entire social theory, see R. UNGER, supra note 33.
171
1985)
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Studies
747
we had previously been able to grasp only in isolated ~he?om~no_l~gical

accounts. What is more, the "linking up" of these subJective, mdl'v.~d.ual
feelings of oppression is supposed to happen on the ~level of pohtlcal
organization as well as that of conceptual explanatiOn. ~b<:<>ry and
practice are not merely connected to each other by the mediatwn, they
are, to an important extent, fused. For example, supposs: I try to explain the individual experiences of first..year law students by a st~c;
tural account of the politics of law.' I might claim that .the paranm~,
loss of self-esteem and roller-coaster oscilla~ions of the firJ~t year are, m
part, caused by the structural contradictiot:ts o~ a~ ~lite ~ncepti~ of
law that on the one hand insists that legal d~nne IS mfimtely r.nampulable mush, and on the other hand offers a pictqre of the rule of law as
being both apolitical and nondiscreti9nary. By exposing the con~ra~ic
tions in such a conception and the way in which these coqtradictwns
are presented in the inscrutablemixed message~of_those large fi~t-year
classes I link up individual experiences of oppressiOn, hurt, and mcomprehe~sion and, supposedly, clear a space for political action in the
dark tangled underbrush of the ideology of law schools. Structural ex'
1'7'
planation e~velops subjective alienation: theory genera~es. practice.
In order to understand the operation of. t?ese meshatmg.concepts I
will go throu'gh each of the traces developed in ,t~e .s~ction o~ legal
realism and examine how the tension between subjectiVISm amt structuralism is lessened, if not resolved.
2.
First Trae: Neutral Law and Legitimation
The Cohen article1711 that I used as an. example of legal realism is

mainly concerned with deconstruction rather than construction. ~t aims
to show that the comforting structure of formalist legal thought 1s actually illusory, that its arguments are circular, and that it forces fact patterns that are "subjectively" very different into the same na)"row c~n
ceptual bbx. Critical legal theory allows one to take this d:constructlve
argument and turn it into the foundation ~f t~o constr_uctlve or st~uc
turalist projects. First, from a mass of subjeCtive expene?ce~ and httle
phenomenologies (conversations, treatises, newspaper ed1tona_ls.'. cl~ss
room experiences and so on) one can extract a structure of leg1t1matmg
rhetoric and poli~ical theory' that seems central to the liberal vis~ on. of
law and society. Having built a structuralist account on a ~ubjectlve
grounding, one can then claim that the l~gitimating struct~re ts undermined by the.awareness that law is not in fact neutral. 'Yh1s postulated
174
171
For the classic example, see D. KENNEDY, supra note 14.

Cohen, supra note 18.
568

748
Critical
[Vol. 133:685
struct~ral failure can then be turned back on the world of subjective

expenence. For example, it helps one to explain, uncover and build
u~~ peo~le's actual reactions to the assertion that law is ine~capably
pohtical, If one has some idea that such an assertion does not stand on
its own but that it is conceptually linked to a whole cluster of other
ideas. Dependi_ng on the way in which it is presented, the idea of political law may either evoke the cynical-modernist cluster ("we've known
that for yea:s") or the apocalyptic-liberal cluster ("you are advocating
the destruction of Western civilization as we know it"). Without a
s~ructuralist understanding, these wildly oscillating reactions would
simply appear to be the symptoms of advanced mental illness.
In a similar manner the second structuralist project emanating
fro~ :e~list deconstr:'-ction uses the metaphor of language to show the
artificiahty and contmgency of the process of translation from "real
world" to "legal world." Mrs. Palsgrars accident 176 is not neutrally represen~ed wh~n w~ describe it as a tort case. The subjective experience
of an mdustnal dispute cannot be converted into the "labor relations
case" that supposedly signifies it by any apolitical transmutation. And
although we have, in a sense, "always known that this was the case "
the political nature of the translation seems to make it much harder f~r
us to compartmentalize our "legal life" and our "real life." The metaphor of translation strips the legal system of the dense fog of familiarity
~h~.t surrounds and protects it. Like languages, the systems do not "exIst apart from our collective construction and reconstruction of them
"We" are the ones who recreate the "legal world" and the "real world".
~very d~r Consequently, we ~a~not use the thing-like quality of these
. wo~lds to d~ny the set of political choices that we are constantly makmg I~ order. to _reproduce them. The linguistic trope allows us to systematize subjective. experiences in a way that actually changes the nature ?f those expenences. A structural exegesis that purports merely to
descnbe "the way things are" reintroduces an element of individual
mo~al an~ political choice that had been excluded by t]le closure of
social reality.
So t~e first trace resolves the tension between the subjectivist and
~tructurahst strands by using the idea of immanent critique and the
Ide~ of Verfremdung with the hope that, once revealed, structures lose
their anaesthetic "grip." But, like all mediations, these concepts do not
s?lve the problem; they merely defer it. Even as I am convinced of the
nghtness of these ideas, I am aware of their hidden limitations their
postponed aporias. What about all the other structures that co~ld be
171
See Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928).
1985)
569
Studies
749
used to explain or construct the subjective reality of the legal world? To

return to the example I used earlier, eould we not explain the alienation and depoliticization of l<iw school education as being the result of
the fact 'that the first-year curriculum must continually deny the politically "tilted" nature of market economics? One could claim that the
whole structure of bourgeois law is based on the obfuscation of the way
in which surplus value is "skimmed off," 177 and then use this immanent critique 1o explain tl:te same subjective experiences that I explained earlier as part of the false ideology of neutral law. In other
words, how do we know our structure is the right structure1171 Is it to
be defended by conventional rationalist argumentation? By appeal to
the experiences of the group to which it is addressed? Or are we to
renounce altogether the possibilityof produCing a kind of theory that
can be "privileged" as more correct than any other theory?
The questions about the privileging of theory are not the only ones
raised in this trace by the tertsion between subjectivism and structuralism. So far I have argued that the principal conceptual devices used to
lessen this tension are the ideas of immanent critique and Verfremdung. Both of these can be understood as products of the sociology
of consciousness or the analysis of ideology. Like Marxism or feminism,
or Freudian social analysis, they seem to postulat~ general delusional
ideologies rooted in some basic feature ..of social life, which are reflected
in mass consciousness. As such theY" seem to fit neatly into the mold of
large-scale social and legal theory. Yet there are considerable problems
if we understand them this way. For example, one obvious application
of the post-realist insights about the political quality of legal rules
would be a study of the way in whiclvthe facade of neutrality in a
particular doctrinal area legitimated a set of social pract,ices. In labor
177 Surplus value is the difference between the value of work and' the value paid
for it. Marx assumed that all things are valuable in !'roportion to the amount of labor
invested in them. Thus profits are made because workers infuse products with (true)
labor value but are only paid according to the (false) market value of their !abo~. According to Marx, the systematically created differl!ntial between these two _value.s ts the
fuel of capitalism and tht cause of explbitation. See"M'arx, Capital: Selit:tums, m THE
MARX-ENGELS READER, supra note 90, at 191, 232-64. It is this economistic measure
of suffering that formed the basis of the vulgar and scientistic forms of Marxism. See
Engels, Socialism: Utopian and Scientific, ;n id. at 605, 622. On this !"~ad_ing of ~atx,
the function of law is the same as the function of all other bourgeots tdeologtes: to
obscure the skimming-off of surplus value. Critical legal scholars have been averse. to
this kind of legal theory for the reasons given earlier. See supra text accompanymg
notes II 5-39.
178 Tom Heller describes the general problem as follows: "[The) multipl~city. of
structuralisms quicklyreveals a massive overdetermina~ion (the apparent determma~10n
of a single practice by multiple su;uctures, each of whtch purports to ?ffer a suffictent
explanation) of any specific phenomenon and tears apart the presumptive value o~ each
individual structural explanation." Heller, supra note 165, at 157 (footnote omttted).
570

750
571
Critical Lega( Studies

[Vol. 133:685
law, for instance, the legal rigidification of a set of bargaining arrangements and practices might seem to defuse radical energies because of
the apparently apolitical character of law. 178 And, as I said this fits the
classi~ idea of the sociology of consciousness-we analy;e ~he power
of certam kinds of discourse (such as law) in affecting the political attitudes of those who are presented with those discourses. But are union
members or union leaders sufficiently aware of the way in which labor
law is interpreted for it to have any credible legitimating force? Is there
a. danger that in following the pattern of large-scale legitimation theones, we may be attributing too much general social impact to the ideology of neutral law? Tony Chase makes a similar point in his criticism
of CLS writing about labor law. "Entirely without fanfare, Klare's and
Kennedy's 'demobilized' working class has become an ideologically
mesmerized ensemble of lawyers and law professors." 180
So if this kind of critical legal theory is to be seen as an equivalent
of ~he large-scale analysis of ideology performed by nineteenth-century
soaal thought, we need some kind of convincing link between the struct~:al analysis of doctrine and the .actual subjective consciousness of pohtl~ actors other than lawyers and judges. If the ideolog}: of neutral
law IS to be seen as important in diverse socio-legal interactions on a
concrete level, the,n people have actually to know what judges are doing
(or wh_at -they say they are doing). Whereas the first set of questions
~as ra1sed by the privileging of theory, by the epistemological connection between the structuralist and the subjectivist strands, the second set
of ques~ions is conce~ed with a related but more mundane question of
connect~on: ~amely, dtd anyone actually have the subjective experiences
of mystificatiOn that the structural analysis purports to explain? 181 I try
170
Se~ Kennedy, _G_riticdl Labor Law Theory: A. Comment, 4 INDUS. REL. L.J.
503 (1981), Klare:, Cntical Theory and Labor Relations Law, in :rHE PoLITICS or
LAW, supra note:. 2, ~t 65; Klare:, supra note l06; Klare:, Labor, Law as Jdeolor;y:
[t~~~}~ a New Hutonography of Collective Bargaining Law, 4 INDUS. REL. L.J. 450
. .'~.Chase:, A Challenge to Workers' Rights, 8 NOVA L.J. 671, 684 n.46 (1984)
(cn~l~lzmg No~c:, ~ubjects of Bargaining under the NLRA and the Limits of Liberal
P_ol1t1cal _Imagma~on, 97 HARV. L. REv. 475 (1983)). As I understand Chase's critiCism,. he IS.,not saymg that labor law ideology is irrc:levant to the demobilization of the:
workmg class. lnst~d, he: is saying that the: claims of demobilization are merc:lr tacked
on to a post-modermst legal theory as an aftc:nhought, id. at 684, that there arc: other
more rc:lc:vant factors to be: considered, id. at. 680~}!1, and that, if the: critical legal
theory dces accu.ratc:ly rc:prc:sc:nt anyone's structural delusions, it is those: of lawyers and
law professors, id. at 684 n.46.
101 F
.
f
. or cnuquc:s o CLS mc:thod<_>l?gy ~hat .bear on this question, sc:c: Chase:, supra
note: 180, _fl ydc:, The Concept of LegJtJ"!~twn m the Sociolor;y of Law, 1983 Wis. L.
REv. 379! F.. Munger /k. C. Sc:rron, Cntlcal Legal Studies vs. Critical Legal Theory:
An ~xammauon of the: Role: of Empirical Research in the: Confc:rc:ncc: on Critical Legal
StudJc:s Uuly 21, 1983) [unpublished paper on file: with the: Universi~J of Pennsylvania
THE POUT/CS OF REASON
1985)
751
to answer these questions, as well as the ones raised in the subsequent

traces, in section F .181
3.
Second Trace: The Critique of Technocracy
I introduced the critique of scientism by commentipg on the real-.

ists' metaphor that the lawyer should act as a "social engineer." 188 I
tried tq make the point that th~ technical interest in prediction and
control was not the only, and certainly not the sovereign, form of reason. What is more, I suggested, by wit.hdrawing political questions
from the public sphere and giving them over to expert decisionmaking,
technocratic.rationality actually dimini~hes the possibilltY of democratic
debate over ends, in the name of an improved analysis of means.
The basis for my analysis, was a reading of Jiiz:gen Habermas's
theory of cognitive interests. 184 Although I did not try to spell out the
details of this argument, I hope that it was fairly clear that the foundation of most objections to scientism is the idea that the empirical-analytic form pf knowledge is being expanded beyond its appropriate
sphere, reducing debates about values to equations about methods.
Even in this necessarily curtailed and caricatured form, one can see that
Haberma~'s analysis depends on the notion of social needs for certain
forms of knowledge, the "anthrogologically deep-seate.d interests" in
predictiQn and control, in individual and-group understanding, and in
freedom from the illusion of necessity. 1111 These technical, practical, and
emancipatory interests form a sort of epistemological trinity that acts as
a mediating deyice between the subjectivist and structuraljst strands in
Habermas's thought.
Habermas is presenting a profoundly democrati<! political theory.
The basis for his epistemological, historicltl, and political researcnes is
the "ideal speech situation," a utopian vision of democratic discussion
in which individual subjects defide their destiny unconstrained by internal neurosis or external oppression. 186 This vision is used as a benchLaw Reviewj.
_
181
See infra tc:xt accompanying notes 255-69.
181
See supra tc:xt accompanying note: 41.
,.. See supra notes 43-50 and accompanying tc:xt.
110
See infra note 189 and accompanying tc:xt.
. .
.
(Sjtructllrc: is frc:c: from constraint only,whc:n for all pan1c1pants there: ts
a symmetrical distribution of chancc:s 'to sc:lc:ct and employ spc:c:ch acts,
when there: is an c:ffc:ctivc: equality of chancts to assume: dialogue: roles. In,
paniculaF, all participants must have: the: same: chance: to initiate: and perpetuiltc: discourse, to put forward, calt into quc:sti~n, and giv~ r~ason~ for
and against statements, explanations, intc:rprc:tauons, and JUStifications.
Funhermorc:, thc:y must have: the: same: chan'l:e to c:xprc:ss attitu?c:s, fec:lings, intentions and the like, and to command, to oppose:, to permit, and to
572

752
[Vol. 133:685
~ark or standard against which we can judge contemporary institu-
~~o~s.. Yet ~abermas _is also presenting a theory that implies that
mdlVIduals m contemporary society are actually diverted from their
human interests by the effects of large-scale, structural "disturbances to
communication" -the ideologies of consumerism, sexism, racism, and
technocracy being examples of such "disturbances."1117
In order to mediate the tension between this structural-ideological
element and the vision of subjects making history "with will and con.
" H abennas uses two complicated intellectual maneuvers.
s~ousness,
First,_ he postulates the "anthropologically deep-seated interests" in
techmcal ~n~ol, practical political discourse, and in emancipation
from the IllusiOn of necessity!88 These interests have a "quasi-transcendental status" rooted in species history and in the basic experiences
of work and interaction. 189 They govern both our modes of knowing
~orbid, ~tc. ~ese last r~uireme.nts refer directly to the organization of
mteracuo~, st~ce the frcemg of dtscourse from the constraints of action is
~nly posstble _m the context of pure interaction. In other words, the condit!ons for the tdeal speech situation must insure not only unlimited discusston but al~ discussion which is free from all constraints of domination
wh~her thetr so~r~ be conscious strategic behavior or oommunic'atio~
b~mers secured m tdeology and neurosis. Thus, the conditions of ideal
dtscou~ a~ _connected wi_th ~nditions for an ideal form of life; they in~u~e h~~utstlc ~nceptuahzauons of the traditional ideas of freedom and
JUStice. T~th, therefore, cannot be analyzed independently of "freedom" and ~ustice."
M~arthy, Introduction to ]. HABERMAS, LEGITIMATION CRISIS supra note 48 at

XVll.
'
'
:: See J. HABE~MAS, THEORY AND PRACTICE, supra note 47, at 12-13.

/d. at 8; see 1d. at 7-32.
1. .
p
tt su ra notes 48-50 and accompanying text; see also T. McCARTHY supra
~ote 47, at 53-91. McCarthy provides the most succinct explanation of the c~gnitive
mterests:
Haberm.as. classi.fi~s processe~ of .inquiry (Forschungsprozessen) into

three catego~tes. en_rp1nca~-analytzc scunces, including the natural sciences
and the ~~a~ sct~nces msofar ~s th~y aim at producing nomological
k( no~ledg~, hutoncal-hermeneutlc sczences, including the humanities
Geute_SWJ.Sse':schaft~) and the historical and social sciences insofar as
they a~~ at mte;prettve ~nderstanding of meaningful configurations; and
the. cnt~eally o."!nted ~czences, including psychoanalysis and the critique
of tde~logy (critical soctal theory), as well as philosophy understood as a
reflectt~e an~ critical ~iscipline. For each category of inquiry he P9sits a
connectlo~ WI~h a S~Ific cognitive interest: "the approach of the empiric~l-a~alyuc SCiences Incorporates a technical cognitive interest; that of the
htstoncal-he~~eneutic. sciences incorporates a practical one; and the ap~roa~h ,of c~!Ically oriented sciences incorporates the emancipatory cognit!ve mterest. These connections are to be demonstrated through an analysts of fun~amental categories ;md of the methods of establishing testing
and ~pplymg the s~s~em~ of propositions proper to the type of idquiry i~
~uesuon. ~he ~gnn,t,ve I~terests appear-as Habermas later puts it-as
general Orientations or general cognitive strategies" that guide the vari-
1985]
<753
and pur forms of life~ Habermas uses this meta-epistemology to justify

political choices between alternative types of rationality. Without the
meta-epistemology these forms of reason would .be literally incommensurable-they would "talk past each other" -:-and thus the structural
side of Habermas's theory woq)d appear to rest on an arbitrary preferepee for one form of reason, one way of life.
Secondly, .Habennas reintroduces the ideal speech situation as: being the standard.against which we measure how the emancipatory interest is fulfilled. 190 In other words, the emancipatocy interest could be
said to govern the other two interest$; it offers a method for ,critical
reflection about the appropriate harmonization of ow: need to predict
and control and our need to communicate ,with ourselves and each
other.
Perhaps the best way of understanding this mediation between
subjectivism and structuralism is to think of the analogy to psychotherapy. Like the analyst, the critical theorist presents both a body of
knowledge and a process for discussing that knowledge. IL the subjects
Qf the theory deny that- they ard structurally deluded about their real
interests, and if this denial takes place in a situation,that is as close .as
possible to the ideal speech~situation, the theorist> must revise the theory, rather than attempt to overwhelm opposition by some claim to scientific knowledge. 1e:r Of course, the ultim!J-te correction to the bloodily
Leninistic tendencies. of all structural theories cannot be provided by
theory itself; nevertheless, the ideal speech situation does incorporate
the possibility for individual subjects to revise the picture of structural
delusion with which they are presented. This is the point at which the
psychoanalytic analogy. must be deserted; the doctor/patient vision is
inappropriate because, as Habermas puts it, "[i]n a process of enlightenment there can only be participants.ms
4.
Third Trace: Legal Scholarship
At the end of an article called Legal Scholarship: Its Cquses and

Cure, 1113 Mark Tushnet, having argued that the- main types of legal
ous modes of inquiry. As such they have a "quasi-transcenpental" status.
ld. at 58 (footnote omitted) (quoting j. HABERMAS, KNOWLEDGE AND HUMAN INTERESTS 308 U.. Shapiro trans. 1971 )).
1"
See supra note 186.
,
. .
111 See j. HABERMAs, THEORY AND PRACTICE, su~ra .note 4~, at 1-40. 'S!ahmst
praxis has furnished the fatal proof that a Party orgamzauon whtch procc:eds mstrumentally and a Marxism which has degenerated into a science of apologetics complement each other only too well." /d. at 36 (footnote omitted).
ld. at 40.
'"' Tushnet, supra note 32.
574

754
Critical
[Vol. 133:685
s~ol~hip are unable to get around the realist critique, finishes by

dtscussmg t?e. ~urses of action available to scholars. After suggesting
sev~ral posstbthttes thaf he deems unlikely to be taken up, such as the
fuston of legal and social theory, he concludes as follows: "Finally,
[scho~ars] ~ continue to do conventional legal scholarship, knowing
that Its premtses are unsupported and indeed insupportable, precisely
be~use It makes no less sense than anything else in the world. There is
an Intellectual tradition here too. For my purposes I can say that it
begins with Kierkegaard. " 1 H
This i~, in a sense, no less of a social theory than the much
gran~er cl.a~ms ~hat have been made about liberal legal theory and its
:ole m legttt'?atmg the modern state. Tushnet identifies a group of subJects and clatms that their actions are conducted within a structural
id~logical"framework that makes those same actions meaningless. One~
agam, the mediating devices of immanent critique, and Verfremdung
are. used to hold the t~? strands together. In order for those mediating
devtces to work, the-cnttque mu~t be truly "immanent." Do legal scholars believe in th~ .i~ea of neutral law that both realists and critical legal
scholars have cnttctzed so powerfully? Is their work based on the transcendence of the subjective/objective division in the way that Tushnet's
1 11
article suggests? ' If they are revealed to be producing advocacy rather
than neutral legal scholarship, will they have the subjective feeling of
a~sur~ity. and meaninglessness evoked so powerfully by the Kierkegaardtan tmage?
My answer to. all of these questions is as equivocal as one might
expect, or at least, tt must appear to be equivocal until the conclusion
of the piece. It is certainly true that there is a reified social role called
"~ega! scholar" and an appropriate "rationality"'-an 'accompanying
?Iscourse that "fits" the husk of the professional persona. When we are
m that role, it seems to act through us, and one of the main determina?t~ of its actions is a sort of watered-down, neo-Lockean, melioristic
s~nvmg after .objectivity. This role and its discourse are in evidence inSide and outside the pages of law reviews. There seems to be no doubt
that people do experience. cha~l~nges to the role as being more important than a mere. acade~mc, cnuque. Consider the following quotation
from the Federalist Society s newsletter:
There. is ~oday ~ growing crisis in the American legal
system whtch IS mamfested in many ways, most notably in
the emergence of the Critical Legal Studies Movement. The
, .. /d. at 1223.
'"' Set, e.g., id. at 1208, 1210, 1222.
1985)
575
Studies
755
Critical Legal Studies Movement, which is neo-marxist and

radical in outlook, views the American legal system as a tool
of oppression and seeks by its manipulation to effect a revolutionary "utopian" change iri American society. Although
this movement has had considerable success in its own right,
what we as conservatives, libertarians and classical liberals
find far more insidious and alarming 'is the increasingly pervasive acceptance amongst academia of its theoretical underpinnings. Such concepts as the impossibility (and indeed, the
undesirability) of the rule of law and the disparagement of
the very idea of neutral, non-partisan scholarship are bruited
about ever more frequently and meet but rarely with serious
challenge. The Federalist Society utterly rejects those propositions, as well as other similar axioms, and in order to
more fully reaffirm its commit1nent to the traditional philosophical bases of the legal system, it is proud to announce its
third annual symposium . . . .1"
To the extent that Tushnet's critique is aimed at these manifestations of the role of scholar I think that it is fairly accurate. But, on the
other hand, there are times when most scholars will also say that they
have always known that lawis incoherent and totally political, and that
their work is only clad in the redeeming robes of neutrality because
"that is the way 'it' is done." Many 'critical legal scholars see this as an
even more basic and more dangerous kind of sublimation: an apparent
post-realist cynicism, which is actually deeply conpnitted to a new kind
of formalism. I do not propose to take ~ither ..side of the deb.ate beca~se
I believe that two claims are being confused here. The first IS the clatm
that there is a justificatory discourse for law and legal institutions that
both depends on and denies the objectivity of legal decisionmaking and
,.. Haroard Symposium to Examine Legal Educa.tion, Federalist Papers, Feb.
1984, at 1, col. I. The third annual symposium was held m February .1984.. Apart f"?m
demonstrating a belief in the: possibility of truly neutral .scholarshtp, ,t?s quotation
shows a commitment to the view that the critical legal studtes movement IS neo-Marxist. Despit~ the occasional' use of neo-Marxist ideas (as i? the ~~t section) I would
argue that this is 1 in fact, not true. Certainly, the neo-Marxtst posmon has been repeatedly criticized both in print and at the conferences. See frug, supra note .169, at. 1~86
(criticizing neo-Marxist legitimation theorist~ and th~ir ~PP?,nents ~?r mak~~.a dtstmction between the: "real world of bureaucratic orgamzauon and the law ), Gordon,
supra note 2, at 285-92 (criticizing large-scale neo-Marxist ideas); P~lle~, supra note
130 (irrationalist position opposed to views that resemble neo-Marxtst tdeas). For a
similar argument about the viability of a distinction between "real world" and "legal
world" see supra note 21; see also R. UNGER, supra note 5, at 15 {criticizing aspects
of Marxism); Dalton, supra note 2, at 229-45 (same:); Kennedy, supr'a. note 9, at 49-50
(same).
,
'
q* ;
'
t
! I
t
576
Critical

756
[VoL 133:685
scholarship. The substance of the critique of this discourse is "You

can't have it both ways." The second is the claim that all of the social
roles that play themselves out through law professors in the legal acade~y ar~ d~pendent on the same latticework of logical argument that
exists Withm the justificatory ideology of liberal legalism. I believe that
the first claim has considerably more truth than the second.
On the one hand it seems fair, almost morally necessary, to point
out the contradictions and the political effects of formalist and neo-formali~t i~eas .. on the other hand, it is ludicrous to imagine that the
apon~ m this structural ideology play a role in the total existential
expenence of the people who spend time in law schools that is even
v~guely si~ilar to .the role of ideologies postulated by large-scale theon~s of SOCial consciOusness, such as Marxism or feminism. Once stated,
this seems,too obvious to have been worth saying. But, if it is true, we
must develop a way of theorizing that allows us to recognize that our
mediating d~vices br~ak dow~ when we expand our theory to a largescale analysts of social experience. Yet, at the same time, we need to
allow for the validity of something like the "total critique" that Roberto
Unger directs at liberalism. 197 I will come back to this problem in the
final section.
C.
Linguistic Theory
1.
Introduction
.
In the section on linguistic theory 198 I discussed the modernist or
mtentionalist vision of language and its corrosive effects on liberal theory and on rationality itself. Thus the organizing theme of the section
wa~ a theory of semantics that m'ade subjective intention the true or
~est~ual or privileged source of meaning. Consequently, the struduraiIst stde of the story, whic~ .concentrates on the importance of ordinary
language usage or retfted semantic codes, was considerably
downplayed. 199
Having explored the paradoxes that this modernist view of langua~e .im~lied for Roberto Unger's theory, I used the general anti-essentt~hs.t Ideas generated by it as a transition to Duncan Kennedy's
descnpt10n of the fundamental contradiction, 200 a description that could
almost be ~ee? .as t~e opposite of Unger's approach. Whereas Unger
uses a subJeCtiVISt, mtentionalist theory of meaning to undermine the
757
THE ?OLITICS OF REASON
1985)
deep structure of liberalism~ Kennedy argues that, despite their subjec;tive. perceptions of the meaning of their own efforts, liberal legal scholars are merely mediating a pervasive structural contradiction between
Self and Other. Thus the structure of liberal legal thought serves as a
medium for scholars, lawyers, and judges to work out their real subjective feelings of fear of the Other and as a mechanism of denial by
which they can repress the fact that there is a cover-up going on, at
all. 101 Finally, in the third trace, Peter Gabel produced a view of a
genuine subjectivity that is alienated from itself by the reified structures
and collective myths of our society and argued for a Sartrean approach
th'at accepted the necessary dialectic between personal phenomenologies
and structural theories of ideology. 101
Each of these traces mediates the tension betweell" subjectivism and
structuralism in a different way. Each provides.different resources for a
theoretical toolkit, and eacll rais~ different questions about the building materials that we might use in constructing a legal or social theory.
2.
First Trace: The Deep Structure of Liberalism: Total Critique

and Faith
..
The tension in Roberto Unger's argument is evident from the beginning. 01'\ the one hand he offers us an int.enti?nalist, subjectiv~st,
and anti-essentialist picture of language. Meamng ts dependent on mtention; there are nd essences of words, nor, one might imagine, of anything else. On the other hand he tries to describe an essentia1ist deep
structure of liberalism, a meta-theory defining the bo,undaries of liberal
argumentation in every discipline. Because of the intensity and obviousness of the contradiction between the essentialist and anti-essentialist sides of the story, the mediating devices are richer and ~ore complex
than those we met in the first set of traces, although there are substantial similarities.
In his desire not to sacrifice "the chaste and powerful weapons of
logical analysis," 205 Unger at first appears to be relying on the notions
of immanent critique and Verfremdung that characterized the traces
drawn out of the legal realist section. 104 Admittedly, his aim is more
comprehensive; he wants a total critique that will allow u~ to. get a
conception of the whole system of liberal thought. 200 Nevertheless, Un101
1 01
:: See supra text accompanying note 94.

'" See supra notes 77-114 and accompanying text.
Set supranote 78.
100
See Kennedy, supra note 13, at 211-13.
577
Studies
/d. at 209-14.
See Gabel, supra note 109; Gabel, supra note 33; Gabel & Kennedy, supra
note I 00, at t -5.

101 R. UNGER, supra note 5, at 15.
104 See supra text accompanying notes 92-98.
101 R. UNGER, supra note 5, at 7.
,,
578

758
579

[Vol. 133:685
ger still appears to be describing the contents of a belief structure held

by others-his structuralist strand can be defended as a mere description of what liberals believe. But Unger goes further. He claims to have
uncovered the deep structure of liberalism, a structure that retains its
status, even if particular liberals do not believe all of it. soe In this case,
there is no doubt that the structural strand is epistemologically "privileged" over the subjective one. Thus the two questions raised in the last
section reappear. First, what status does the deep structure have ?207 Is
it the deepest stratum in the accumulated sediment of liberal rhetoric?
Is it the idealized picture of our contemporary individual experiences of
101
social life ? Is it the lowest common denominator in the beliefs "of
great liberal theorists?101 Or is it the World Spirit's most recent diary
110
entry? The answer to this question appears to be that it is an amalgam of all of these, which Unger invites us to hold together by- faith
... /d. at 8-9 (deep structure is more than the beliefs of particular thinkers since it
defines all of the possible variations in theory building).
107
The term "deep structure" reveals little in and of itself. Unger does not use the
term in the same way as its originator, Chomsky, does. /d. at 296 n.2. And Chomsky
himself has warned that "deep" should not'be understood in the nontechnical sense of
the word-that is, as the antonym of superficial or unimportant. N. CHOMSKY, supra
note 77, at 82.
oe It would be a dangerous illusion to suppose that a mere revision of our
philosophical ideas could'suffice to accomplish the objective of giving force
t? the _1dea. of shared values. Th~ seriousness of the .political premises of
hberal1sm 1s a consequence of the accuracy with which they describe a
form of social ex~rience that theory alone cannot abolish. It is the experience of the precanousness and contingency of all shared values in society.
R. UNGER, supra note 5, at 103.
oe "Th~ liberal doctrine described in these pages was embraced with varying degrees110
of fidehty by many of the most revered modern philosophers." /d. at 7.
In i~s ideas about itself and about society, as in all its other endeavors,
the. m1~d _goes from mastery to enslavement. By an irresistible movement,
wh1_ch lmllates. the attraction death exercises over life, thought again and
agam uses the Instruments of its own freedom to bind itself in chains. But
whe?ever the mind breaks its chains, the liberty it wins is greater than .the
on~ It ha~ lost, a_nd _the splend?r of its triumph surpasses the wretchedness
of liS .earher subJection. Even lis defeats strengthen it. Thus, everything in
the history of thought happens as if it were meant to remind us that
thou%h d.eath lasts forever, it is always the same, whereas life, which i~
fleetmg, 1s always something higher than it was before.
1~. at I ~~eems va~~ely similar to progress of Hegel's Worfd Spirit through stages of
h1story). Why .Sp1~ll ha~ to go through these stages is not clear. One is tempted to
suppose that Spmt IS trymg to understand Hegel, and at each stage rashly objectifies
what it has been reading." B. RUSSELL, A HISTORY OF WESTERN PHILOSOPHY 784
(1972). See also G: HEGEL, THE PHrLOSOPHY OF HISTORY 17-79 0. Sibree trans.
1956) (an explanation of the nature of the World Spirit); Kronman, Book Review, 61
MINN. L. REv. 167, 182 (1976) (claiming Unger uses Hegelian methodology). However, Unger adamantly denies the truth of Kronman's claim. See letters from Professor
Unger to Professor Kronman (Sept. 22, 1976, Oct. 4, 1976), reprinted in Kronman, id.
at 200-01, 203-04 app.
1985]
THE POliTICS OF. REASON
759
long enough to have the experience of total critique. .

The second question is dependent on the first. As .. m the last section, we must discover to whom this critique is addressed and to what
extent.they experience the world through the lens of the ~tructure..~e
deep structure is partly. constructed .. from the actual expertences of md~
viduals, but otherwise, it does not fit" easily. into the moldOf the classic
Ideologie-Kritik produced by nineteenth-century social tho~ght. 111 One
could not imagine using Unger's structure to make the ki?d -of tota~
izing claims about subjective experience that Marx used his economic
structuralism to make. Once again, we are given reason to believe that
critical legal thought may be distorted if we put it into the conceptual
t heory.I l l
boxes provided by the grand sty1e of 1eg~timation
.
These two questions, status and experiential content, give rts~ to a
third. Assuming we concede the existence of a structure, what IS the
relationship among or between its po~tulates? 211 If we believe, _for example, that the structure is ultimately a distillation of our expe:Ience of
social life , how can we separate out the experiences that conshtute
. . our
structure from those that contradict it and thus demonstrate Its mcapacity to justify the way we organiz~ social. life!'14 In ord~r to settle
this question one would need to begm the mfimte re~ess mto metaprinciples, meta-meta-printiples, and so on.
. .
The pattern is repeated. Linguistic meaning depends on sub;ectzve
au On the one hand Unger's argum~t is concerned with our_political.~d psy
chological ideas, with the basic questions of eth!cs fa~ng us, a~d w1th our VlSlon of a
remade social world. On the other hand he deals wtth these 1deas at the level of a
philosophical and political argument t~at is h~ghly fo~alized and abstract and that
does not purport to be a general analysis ,of SOCial cons~ousness: Another way of making the same point is to compare Unger s deep structure and 1ts .suppo~ effects ~n
people's feelings to Nancy Chodoro":''s fe~inist ~al psy~hoana!ys~s, ~~1ch deal~ w1th
mother-monopolized child-rearing and its effect m producmg sex1st mdlvtdual attitudes.
See N. CHODOROW, supra note 143.
.
.
.
.
us I am not supposing that Roberto Unger cla1ms that 1}1s th~ry .u a fundamental'account of social consciousness or a legitimation theory. I am pomtmg out that the
standard understanding of social theory. may cause his. account t.o be interpreted t.hat
wav, but that, in fact, it is not, and that, consequently, It uses a different set of mediating. devices between the subjectivist and structuralist .st.rands. .
.
u See'R. UNGER, supra note 5, at 15 (analog1zmg relat1onsh1p l:le~ween postulates to that of logical entailment, but making the point that the analogy w1H have ~o be
discarded once the deep structute has been described and the argument has ~stabhshed
itself as total critique).
. .
u One way of separating the structure-constltutmg ~nd the. ~tru~ure-contr~
dicting experiences would be to believe that there are essential quahtles 1mmanen_t m
the experience that mark the experience as part of the structure. But sue~ an Idea
merely brings back the problem of essences. "Were we to make any concess1on to the
doctrine of intelligible essences in our view o~ na~ural facts, there seems to be no way
that we could keep the doctrine from penetrating mto the s~~eres of langu.age, conduct,
and values." /d. at 79. But what is true for "natural facts surely goes m spades for
social experiences.
580

760
(Vol. 133:685
intention, but this picture coexists uneasily with the idea of reified semantic codes, preexisting structures of meaning encrusted with political
2111
judgments.
Liberalism is presented as .having a deep structure, a
structure that is somehow relatively autonomous from the beliefs of liberals. In order to be able to draw an objectively correct line between
these conflicting strands we would have to be able to bootstrap our w&y
out of a bog of metaphysics. Yet if we reject Unger's leap of faith, we
will never be able to experience the total critique for which he argues
so persuasively. 216
3.
581
Second Trace: Phenomenology, Structuralism and the Limited

Sphere
Duncan Kennedy's work on the fundamental contradiction portrays ali liberal legal discourse as an attempt to mediate between Self
and Other using the state and civil society as intermediary terms. 117 On
the one h~nd, legal thought, doctrine, and the theory of the state appear
to be highly structured, almost along the lines of a classical depiction of
the legal system. The patterned nature of the master narrative makes it
seem as t9ough the contradiction proceeds by itself, relying on the lawyers, judges, and legal theorists only for its articulation. On the other
hand, the contradiction is presented as experiential, rooted in and
driven by the cognitive dissonance experienced by individual members
of the legal elite on a day-to-day level. 218 This tension between structuralism and subjectivism is mediated by a kind of reductionist sociology of knowledge. Another way of putting the _same point is to say that
the essentialist and phenomenological sides of the story are held together by the idea that it is possible to reduce myriad individual feelings of disquiet to the experience of the Self-Other dichotomy. The
"psychic click" as an argument seems to fit, the disappointment as an
analogy does not seem to work, the dissonance as a doctrinal tension
seems irresoluble-all of these can be captured in the conceptual net of
"" Su supra note 78.
"' I am aware that despite my disclaimers the reader will end up with a fundamentally nawed idea of my impression of Unger. In this piece I have used his early
ideas. as an example of mediation between subjectivism and structuralism. Consequently, I have ignored his brilliant insights, his amazing ability to systematize, and the
liberating experience that comes from total critique. I believe that Knowledge and
Politics is one of the great work~ of social theory produced in the last twenty years.
Comparing it to, say, Dworkin's work is like comparing Wordsworth to McGonagall.
Compare R. UNGER, supra note 5, with R. DWORKIN, supra note 53; compare also
Wordsworth (good) with Mc;Gonagall (not quite so good) (suS. PILE, THE BooK OF
HEROIC FAILURES 123-124 (1979)).
117
Kennedy, supra note 13, at 244, 368-82.
111
See supra notes 100-05 and accompanying text.
1985)
THE POLITICS OF m:ASON
761
the fundamental contradidion.

.
.
Kennedy privileges his reductionist process by usmg th~ ~dea o
local immanent critique. Talking of the fundamental contradtct~on,: he.
argues that it is an aspect of our experience of every f~rm of s<><;!al_ h~e.
Then, switching to his more structural mode, he clatms that w1thm
law, as . . . commonly defined, it is not only an aspect, but the very
essence of every. problem."218 The phrase "law, as . : . ~o~monl' _de-..
fined" points to the partial, localized quality of the med1atmg devtces
he is using. If the fundamental contradiction w_ere ~x~rien~ as a
conscious antinomy in all of the sph(fres of soaal hfe m w_htch law
played any role, we could maintain the idea that _the t~eory IS mere~y
an immanent critique. But the powerful structurahst cla1ms se~m dubtous. If everyone is aware of .the.contradiction's role, how can 1t be the
concealed essence of a problem? Conversely, if we concentrate on the
structuralist master pattern, then the individual experiences _that. supposedly give rise to it are devalued. By narrowing the area of mqutry to
the social activity of producing doctrinal arguments, Kennedy can
piggy-back on the formalist idea pf law and thus produce both a strong
structural explanation of doctrine and a large-scale phenomenology of
personal experience.
4. Third Trace: The Sartrean Synthesis
Peter Gabel's work on r.eification in legal reasoning clearly exhibits the tension between structuralism and subjectivism.22a In fact, as I
pointed out earlier,m he explicitly raises the tension as being_ at. t~e
heart of a method for critical legal theory.uz For him the subJectlVlst
strand is represented in the kind of phenomenology that Sartre_ deri~~d
from Husserl...and Heidegger and that remained. part of all of h1s pohttcal and philosophical writings, dellpite the waxing and waning of the
Marxist, structuralist counter-strand. 125 Thus _it is Sartre's "search for
a method" that most directly influences Gabel's attempt to steer a
. . . 224
course between blank determinism and a pure sub~ectlVlsm.
111
Kennedy, supra note 13, at 213.

Gabel, supra note 109.
nt See supra text accompanying notes 106-11.
111
See Gabel, supra note 109.
121
See sources cited supra note 164; J. SARTRE, SEARCH F?~ A METHOD ~H.
Barnes trans. 1968); see also Gabc:t, supra note 109, at 602 r..1 (c1t1ng methodological
110
H"
innuences).
G L-J' "d
... I must repeat the caution that I made earlier about Peter auc s I ea~. IS
work should be seen as an effort to evoke the possibilities for the transfo.~auo~ ~!
social rdations rather than a traditional rationalist attempt to ~pture the good ~fe
within a set of structural reformulations or conceptual categonc:s. See Gabel & en-
582
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(Vol. 133:685
One way of summarizing Sartre's problem in Search for a

Method""" is. to use his much quoted remark about Marxist analyses of
poetry an.d hterature: "Valery is a petit bOurgeois intellectual, but not
every ?et1t bourgeois intellectual is Valery."u ~ut it is not just the
reductiOn of the subject to the "effect" of structural determinants
against which Sartre is reacting; to say that would be to reduce his
work to the eclectic immobility of more cautious writers. Burning
throughout his work is the childlike glee he felt when he first discovered that phenomenology would even allow one to philosophize about
apricot cocktails,sn or, one might say, about law school classrooms.
The thing that makes political phenomenology so attractive is its insistence that the subjective, immediate moment contains within itself vast
possibilities, which are no sooner experienced than they are covered
over by the cloying film projected by a "thingified" set of social roles.
The multiplicity of these roles and their associated discourses will form
the basis for my attempt to provide a toolkit for theory.
D.
Departures from Marxism

1.
Introduction
Earlier in this Article I discussed the ways in which critical legal

thought has departed from Marxist theory. 228 The first trace described
a progress~on fro~, "conspiracy theory" through the idea of "objective
s~ructural mterests to the concept of "relative autonomy;" it then outhoed Robert Gordon's anti-positivist critique of all these notions.ue
~he second trace presented an "irrationalist" depiction of both legal
discourse. a.nd everyday reality. 230 The third offered a detailed project
for descnbmg the cont~nt of "legal consciousness. " 231 As 1 will now
show, each trace provides us with evidence about the transformative
effects .of the tension between structuralism and subjectivism. By transf?rmatlve effects I mean the internal dynamics of theoretical produc~wn-the struggles that the theorist must face before the final amalgam
IS presented to the reader. Walter Benjamin once said that "the work is
nedy, supra note 100, at 2.
.., J. SARTRE, supra note 223.
... /d. at 56.
117
See S. DE BEAUVOIR, THE PRIME
MADSEN, HEARTS AND MINDS 59 (1977).
Set supra text accompanying notes
... See supra text accompanying notes
uo Set supra text accompanying notes
111
Set supra text accompanying notes
OF LIFE 112 (P. Green trans. 1963)

; A.
115-39.
118-28.
129-35.
136-40.
583
1985]
763
the death-mask of its concepti<?n."131 My hope is that by using the tension we can also 'see something of the formative process, the Bildungsroman of theoretical development.133
2.
First Trace: Transformations in Miifxist Thought
The historical subject to which Marx's theory is adqressed (tpe

working class) could not be captured or closed off within th~ economic
structuralism tha~ he offered. Even. within Marx's own work and his
own time, subjugated flashes of subjectivity would suddenly rise up,
marring the smooth surface of economic determinism. The wonderful
description of individual alienation within the, Economic and Philosophical Manuscripts, 114 the discovery (or invention) of a "humanistic"
Marx,1311 the failure of the working class to perform in the way the
theory demanded 211-all of these were little earthquakes generated by
the slippage between the continental plates or' subjectivism and structuralism. In t~e same way the "moves" in Marxist l~al theory can be
understood as a series of attempts to deal with the subjectivist/structuralist tension. The transition I described was "consp~racy theory," to
"structural requisities," to "relative autonomy," to "socially constructed
reality." 117 One could chart this progression and its relationship tc;> the
tension as .follows.
Does the conspiracy theory of law seem unbelievable because one
cannot imagine so many individual ,.subjects accurately perceiving their
long-term self-interest and acting in concert to institutionalize it as
law? The obvious response is to switch the determining power away
from the individual wills of capitalists towards the structural requisite of capitalism. Does thi.,s move, in tum, seem to make the structure
too deterministic? Th~n make law and other ideological syst~ms "relatively autonomous," leaving room for dialectical interaction between
multiple sets of structures (economy, law, philosophy, for example) and
thus .hacking out a space in which one could imagine the possibility of
111
W. BENJAMIN, REFLECTIONS 81 (1978).
See DtcriONARY OF WoRLD LITERARY TERMS 30 O Shipley ed. 1970) (defining Bildungsroman as "(a] novel such as Goethe's Wilhelm Meisters Lehrjahre
110
(1796), presenting a person's formative years and awakening").

... Marx, supra note 90.
111 See E. FROMM, MARx's CoNCEPT oF MAN, 19-58 (1961) .
101 Mark's eronomistic teleology specifies increased production, exhaustion of
markets, cutthroat competition, increasing oppression of labor, polarization of the classes, and finally, revolution. See Tucker, Introduction to THE MARX-ENGELS READER,
supra note 90, at xxvi. But the teleology has not been fulfilled: "the subjects of the
critique of political economy have not responded in the way that the structural analysis
predicts.
117
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[Vol. 133:685
free action by historically informed subjects. Yet if our ideas of "the

subject" and "the economic structure" are both socially or intersubjectively produced categories, where is the grounding for our critique? If
both118
ideas come from within the social world, isn't the argument circular ?
When I discussed this point earlier I used a quotation from
Robert Gordon: "what we experience as 'social reality' is something
that we ourselves are constantly constructing; and . . . this is just as
true for 'economic conditions' as it is for 'legal rules.' au Notice that
whereas the Marxist theory makes structuralism the dominant or determining strand, this argument reverses the position to make all of social
reality an intersubjectively created phenomenon.
So each of these four theories forms a new amalgam of the strands
in order to eradicate the fault lines perceived in the last amalgam. The
claim that reality is subjectively created is dangerously supplemented by
our awareness of the apparent objective reality of structural constraints
and the thing-like quality of social institutions. Similarly, the Marxist
claim that our reality is structurally determined is dangerously supplemented by all of the subjective elements I mentioned earlier, such as the
importance of individual alienation, the intransigence of the working
class as an historical subject, and so on. Any amalgam of the strands
will be unstable (in fact, it is their decay that, in some sense, "drives"
the theoretical project), and yet we need to amalgamate them in order
to create a social theory. What is to be done? Like Lenin, I defer the
answer until the end.
3.
Second Trace: "Irrationalist" Legal Thought
The second trace in this section takes its departure from the same
place and thus produces the same set of tensions. Gary Peller240 undermines one set of structural claims (that law is definite, apolitical, or
neutral) by appealing to another set of structural determinants ("the
underlying structures of meaning, the cultural codes of 'common serise'
which limit the play of analogy by categorizing similarity and differ.
ence ")241 . H e t hen un dermmes
the second set of structures by pointing
out that they are irrational. Thus, if there is an apparent order to legal
argument, if there are cases that seem easy or analogies that seem obvious, it is because of an arbitrary set of social assumptions that freeze
the possibilities. Having argued that "[r]ationality in general refers
1985)
only to a felt necessity _once particular structures for categoriz~ng. t?e

world have become frozen," 141 he can introduce the deferred subjectiVISt
. k an d act m
the world"l41
element, the freedom for "new ways to thm
that will result once the structures are broken down. This is not simply
a description of the workings of legal discourse; it is a polemic against
the experience of structural constraint everywhere in social life. Peller
is not trying to balance two metaphysical tendencies on some Archimedean point of rhetoric; he is arguing that we ate limited, disempowered,
denied, frustrated, warped, and deranged by the thing-like quality of
our own constructs .. If we wistr to express this constraint and the corresponding liberty resulting from its negation,1 " we seem to be faced by
an epistemological contradiction between the two st~ands h~ve be~n
describing. It seems to me that the task of surmquntmg th~s contradiction is not that of "getting our sums right" in a new set ofphilosopl)ical
mediations, but of describing or evoking the tension in the fllll ~nowl;
edge that one's description is partial, nondefinitive, and very likely to
be turned into a "cluster of pods"1411 by the seemingly inexorable process of reification. I will develop this picture of theory in the final
section.
4.
Third Trace: Consciousness and Closure
The third trace focused on the analysis of legal consciousness, the

communal mind-set or worldview of the legal profession, and the ways
in which this consciousness determines the shape of the legal world. 1 "
This theoretical project tries to capture the feelings o~ contradiction that
individual lawyers or judges experience, by tracing the ways in which
the collective structural consciousness mediates these experiences. In
this respect it is similar to the idea of the fundamental contradiction we
examined earlier. 2 n But whereas the fundamental contradiction can be
viewed as the engine driving the process of doctrinal and theoretical..
creation, the analysis of historical legal consciousness giveS> us more of a
frozen cross-section of legal ideology at one particular time. Like all of
the other traces, this theory represents the te,nsion between structuralism and subjectivism. More importantly, it is itself an attempt to reUl
fd.
~u
144
110
See supra note 21; supra text accompanying notes 133-35.

Gordon, supra note 2, at 287.
141 See Peller, supra note 130; see also supra note 130 and accompanying text.
See Peller, supra note 130, at 5.
140
765
Ste supra note 164 (dealing with phenomenological negauon in Sanre's

d A
philosophy).
10
' The reference is to the film Invasion of the Body Snatchers, Alhe
rusts
(1956), remade by, United Anists (1978). See Gabel & Kennedy, supra note 100, at 7,
54-55.
140
147

'1
...
586

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UNIVERS11l' OF PENNSYLVANIA LAW REVIEW

[Vol. 133:685
1985)
spond to a prior tension within critical legal theory. As I tried to point

out earlier, it seems paradoxical to argue that we have a restrictive
and reified understanding of the social world and at the same time to
argue that doctrine is completely indeterminate, fuzzy, and non-limited.
The persistent "thingification" that the first argument criticizes is evidenced precisely by the feeling of constraint that the second argument
denies. For those two sets of claims to coexist, as they do in Gary
Peller's work, for example, we need an account of the way in which the
world appears to be thing-like or objective, together with a critique of
that appearance. We need, in other words, a version of the structuralist
strand that ,deals with the felt necessity of legal discourse. And, as I
ar_gued in the last section, while the analysis of historical legal consciOusness appears to fill this need, it seems also to contradict the antiessentialist, individual, subjectivist side of the story. Once again, the
main goals of theoretical creation seem to involve the mediation of the
tension.
E.
What the Tension Tells Us
What does all of this tell us? No matter which trace one looks at
the tension between subjectivism and structuralism seems to occup;
cente~; stage. It does not matter whether one focuses on the ideology of
neutral law or the compatibility of Unger's theory of language with his
theory of liberalism. It is immaterial whether one is interested in the
internal dynamics of Marxist legal theories or in the conflict between
doctrinal indeterminacy and ideological constraint. One can concentrate
on the social power of technocracy, the workings of the fundamental
contradiction, or the idea of legal consciousness. The tension seems to
run through all of these theories, like a geological fault line generating
patterns of secondary cracks. But apart from unifying the traces and
thus making critical legal theory a little easier to understand how does
this dichotomy help us?
'
First, it helps to dispel some of the confusion over rationalist and
irratio~alist modes of theory. As- I pointed out earlier, 248 the irrationalist theories were far from embodying the relentless, nihilistic critique
that was expected of them. Duncan Kennedy's work on the fundamental contradiction has been hailed as the core of the irrationalist position
110
within CLS, yet it is distinctly nonnihilistic in that it goes so far as
141
141
110
Set supra text accompanying notes 136-40.

See supra text accompanying note 148.
See Dal.ton, supra note 2, at 234 n.23, 235 & n.27.
..
587
767
to make claims about the essence of every legal problem. 2111 In fact, its
generalized and abstract <assertions about the universality of the fundamental contradiction are' almost reminiscent of classical legal thought,
which supposedly represented the high point of confidence in the power
of reason to abstract. out the essence of social situations.' So by switching
the focus over to structuralism and subjectivism, we avoid the conceptual baggage carried by rationalism or its opposite. Thus we can get
some jdea of what the theorist is actually doing. How much information is explained, or .explained away, by the structural side of the theory? Which subjective perceptions constitute the belief structure in
question, which ones represent the momentary flashes of "true con-..
sciousness," and which are to be dismissed as delusion? What "status"
does the theory have? ,The subjectivist/structuralist tension allows one
to get at these questions unimpeded by the accumulated strata of reified
connotations that seem unavoidable when one discusses the alternative
dichotomy.
Second, the tension provides a connection between critical legal
thought and other kinds of social theory, a connection that highlights
both similarities and differences and that provides the key to the third
advantage: the toolkit of mediations and maxims that the traces reveal
when confronted by the subjectivist/structuralist opposition. It is to
these issues that I now turn, as I compare the strategies offered by the
different traces, and conclude by arguing in favor of a certain vision of
the connection of theory to practice.
Subjectivism and structuralism seem to be necessary, almost definitional components of any kind of legitimation theory or consciousness
analysis, perhaps of any theory abo\lt. ideology and the social world.
We need to root our theory, .on some level, in the experience of subjectsin the social world. Yet at the same time we must set up a belief structure that converts those supposedly raw experiences into true and false
consciousness, 2112 constituent parts of- the episteme and subjugated
101
See Kennedy, supra note 13, at 213.
,
It is this part of consciousness analysis against which the most heated 'llrid,
initially, most persuasive forms of liberal criticism are normally directed. The basic
argument is that any theory that claims to expose "false consciousness" is inherently
tilted towards Stalinism or fascism. The attempt to go beyond individuals' perceptions,
of their own interests is doomed to end by people being forced to conform to the prescriptions of the theory. In the terms of this debate "negative; freedom" (tq .do what you
want to do) is counterposed against "positive freedom" (to do what you ought to want
to do), and when it is described this way all of us have a strong preference for the
former over the latter. Obviously, I could hardly hope to resolve the debate in a foot-
note, but there are good reasons to believe the point is moot, al least insofar as we are
concerned with the relativ~; worth of liberal political thought versus that of ~me other
kind. I saythis because liberal thinking relies on the very notions of "real interests" or
"positive freedom" that it purports to deny.
'
101
588

768
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[Vol. 133:685
1985)
589
769
201
The first axis of the tension involves the privileging of one side
over the other. The second axis of the tension comes from the need to
evoke two opposed experiences: the feeling of freedom when. the struct~re dissolves, and the feeling of constraint when it appears as an objective, external force. On eac~ axis the dominant strand is dangerously
supplem~nted by the r~siVe one. A work of social theory can only
f:eeze this proce.ss of penlous supplementarity by using mediating dev~~s. ~he theonst may present her work as a scientifically correct legitn~atwn_ theory, .as ~he description of a pre-existing delusion, or as the
rea!Ity of mtersubjectively produced meaning that is obscured by reified
sooal ~orms .. Yet each of these mediations merely restates the tension,
defers Its obviOusness for one more argumentative move. We come back
again to the question I raised at the end of the Marxist section. 204 How
can we create a moral and political theory that will help us think and
act in the social world?
To answer this question we have to look at the mediating devices
One of the ~ost admir~ble features of liberal political discourse is its strong antipathy toward se~sm and raasm. In everyday discussion most liberals would agree that
fxlsm ~n? rac1sm ~re pe~t.u~ted by st!f-oppression as well as by external prejudice.
n faa, It IS by f~ran~ an mdiv1dual or a class to internalize and reproduce an image of
t~emselves as bemg mferi.or, or politically incompetent, or "not suited" to particular
kinds of _work~ that these 1deol<>g~es exercise much of their power. But even to understand th1s not1o~ of the s~ct~ral promotion of self-delusion, one has to move outside
the. ~orld of ~atlonal, atomtstlc monads postulated by the abstract rhetoric of liberal
pohtlcal theonsts.
. Cons~quently, it seems that if "liberal thinking" is made up even in part of what
l~berals t~1~k, then "libe~al thinking" ~as long ago accepted the premise that the excluSive defimtlon of hum~n Interests as bemg self-interests is a definition that makes non~ense out ,?four .~xpen~nce ~f the social world. We are still left with the well-grounded
~ar that .close~ t~eon~s will be used to justify the imposition of force to bring subjective expe~le.nce m hn_e With the structu::-al postulates of the theory. This fear, which has
been a driVIng for~~ In bot~ ~ew Left and liberal thinking, seems to be directfy related
to t~e ~mount of closure In a theory-the extent to which opposing views will be
demed If they do not fit the theory. Interpreted this way, the question can be seen as to
wh~t e:ctent the. structural strand of the theory is going to be privileged over opposing
subjectl~e expenence. But, as the racism and sexism examples make clear, both liberals
and lefus.ts ~e~m to agree that one cannot have a meaningful political vision based on
pure subjectiVIsm or pure negative freedom. Thus the picture seems to be more confus~~ than one would_ imagine if one looked only at the neat line drawn alon the
posltlve freedom/n~a.uve_ fre~d~m division. Conceptual self-denial will not make ~ense
of th~ wo~ld,_ and sctenu~c! closed" political theories will change it for the worse.
S~en m thts h~ht, the med~a.uon of the subjectivist and the structuralist strands is one of
t e ~urrent Issues of pohucal t~ought and not just a problem in the esoteric theories
of lefust law I?rofes~rs. For a dtfferent formulation of this issue, see I. BERLIN, Two
Conc:f.ts of Liberty, m FouR EssAYS ON LIBERTY 118 (1969).
The terms come from .~ichel ~~>Ucault. SuM. FoUCAULT, THE ORDER OF
THINGS, supra not~ ?5, at xxu (defimuon of episteme); M. FoUCAULT, supra note
142, 1~ 7984 (defimuon of "subjugated knowledges").
actually used by critical legal theorists in the traces I discussed. Are

those devices merely there tQ obscure the contradictions riddling a work
of theory, or do they actually fulfill some function beyond mere window
dressing? I am going to argue for the absurdly optimistic position that
not only do they have some use, but the structuralist/subjectivist tension provides a key to understanding their extensions, perversion, and
failures as well as their profitable application and hidden successes.
F. Dealing with the Tension

1.
Immanent Critique and Local Theory
As I pointed, out repeatedly while discussing the traces, the easiest

way to mediate the two strands is to say that you are merely criticizing
a pre-existing delusion in order to liberate those who labor under it.
The idea of Verfremdung gives ~he concept a little extra "spin" by
postulating that the most powerful ideological constraints are those that
are invisible; people are unaware that they believe anything at all-it
appears to them that "things have to be that way." I also pointed out
the problems with these devices-the possibility of multiple structures
to explain the same beliefs, or of different beliefs being the constituent
parts of the "real" structure, or the difficulty of reconciling the picture
of the brainwashed cipher before and the ~oratio Alger after the structural exegesis, and so on.
Most of the main criticisms of CLS spring from these difficulties.
There are two main types of critique. The first claims that the so-called
belief structure simply does not exist and thus that the CLS critique is
most certainly ,not immanent. 2011 The second claims that even if the belief structure does exist, it exists in too few people or the wrong kind of
people for it to be of any use as a social theory. 206 I believe that both
critiques make the same mistake. Overcome by the resemblance that
this kind of immanent critique has to large-scale nineteenth-century so Precisely because this criticism t~nds to disparage the importance of liberal
state theory, or of the neutrality of legal decisions, it is normally found outside the
pages of law reviews. See infra text accompanying notes 257-58 (arguing that the ideology of neutral law is only important in certain reified social roles). But see Hyde,
supra note 181, at 389-418 (arguing that the postulated legitimating function of the
belief structure criticized by CLS cannot be quantified and roay be negligible); Johnson, supra note 39, at 248-50 (arguing that the CLS critique contains little that is not
al"ready known); F. Munger & C. Serron, supra note 181 (arguing that critical legal
theorists have not done enough empirical research on existence or effect of belief
structures).
..._ "Entirely without fanfare Klare and Kennedy's 'demobilized' working class
has become an ideologically mesmerized group of lawyers and law professors." Chase,
supra note 180, at 684 n.46.
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[Vol. 133:685
cia! theory, they expect the deconstruction of law's purported neutrality, the attacks on reification in a particular doctrinal area, or an argument that contemporary scholarship is Kierkegaardian to play the same
role as Marx's account of the material foundations of consciousness.
Their mistake, in short, is the vice of grandiosity. 267 Admittediy, there
are plenty of reasons for this mistake, and critical legal scholars frequently talk as though they were doing nineteenth-century social
~hought, but, to the extent that the CLS project is defensible, I believe
tt must be concerned with more "modest" tasks. I will give two examples to show what I mean, one relating to the critique that "no one
actually believes that law is apolitical," and the other to the critique
that "these beliefs are held, but by the wrong people for any deconstruction to be valuable as an exercise in social theory."
Nothing is more certain to enrage a critical legal scholar than the
claim that "we are all realists now," or that all lawyers know that law
is not neutral. I am going to offer an exaggerated version of the standard responses to this claim, in order to make my point:
The liberal justification for state power simply cannot stand
if law is political. Any argument to the contrary is merely a
claim that the emperor is not naked, but that he is wearing a
skintight, see-through suit. The separation of law and politics is one of the central beliefs on which all liberal discourse
proceeds. Once it is undermined everything depending on it,
ranging from the style of student-teacher interaction in the
classroom to the private property system, must collapse. It is
because the law /politics distinction is a conceptual linchpin
to all of these other exercises of social power that it is defended so strongly.
We are not ail realists now. Many students, lawyers, and
teachers will never be exposed to the details of the realist
arguments, let alone the CLS arguments.
All of your habits, arguments, articles, and ideas depend on

some separation between law and political discourse. That
you can "believe" that law is political during this discussion
will not change the way you teach your constitutional law
class this afternoon.
101
See Kennedy, First Year Law Teaching as Political Action, 1 LAW & Soc.
~ROBS. 4~ <,!980~ .<commentin~. on vice of grandiosity in picture of preconditions to
worthwhile pohucs). The cnuques of large-scale social thought offered by Duncan
Kennedy, ste D. K~NNEDY, supra not~ .14, and Robert Gor~on, see Gordon, supra
note 2, were strong mfluences on the VISIOn of theory offered m this Article.
THE POUTICS OF REASON'
1985]
771
You did not seem 'like a realist last week. In fact, you accused me of undermining Western civilization, simply because 1- told you that all textual interpretation was arbitrary
and that policy argument and rule formalism were equally
"political" forms of discourse, etc., etc.
While I believe most of these counterarguments, I think that lhe
first and most general one implies a vision of subjects and of ideological
structure~ that i~, quite simply, false. The modernist picture of personali'ty shows us that our beliefs. ar.d ideals are not a unified Cartesian
system' of interlocking and consistent rational arguments. "W'e believe
different things at different times; we inhabit multiple discourses, each
of which has its own mini-constellation of obligatory beliefs. I pointed
out earlier. that one will often get violently conflicting reactions from
the same person when she is conftonted with the claim that law is political. 2118 But this oscillation from bland acceptance to thunderous denunciation is not' the symptom of some deep personality disorder.
Rather it is that, witQin certain reified social roles, it becomes absolutely vital that law be "neutral (for example, the teacher who affirms to
a class tltat the only alternative to constitutional liberalism is anarchy),
while in other roles the matter is of supreme unimportance (for example, when die same teaclier" tells worldly-wise stories about the bias of
judges and the irrelevance of rules).
The mistake of the large-scale social theories, which is replicated
by tfie mediating devices of immanent critique and Veifremdung, is to
confuse the coherent structure of formal reasoning in the abstract version of the situation for the reality of myriad, dverlapping clusters of
belief. This explains,why the "law-is-political" story has more bite in
the 'Contracts classroom than on the stfeet (or even than in the constitutional law classroom). It even explains why the story can be rendered
"harmless" simply by the teacher signalling (with a smile or a shrug)
that we have all stepped outside our. formal roles (as teacher, student)
and their -appropriate reified discourses into our "real, cynical selves"
(as worldly-wise Fred, ennui-laden Joan) and their reified discourses.
The amazing thing is not the "let's pretend" aspect of it, but the collective violence wrought on those who dare to mention the shift, or who
simply did not read the signals right. Once the role ceases to speak
through us, we no longer have to be threatened by an attack on its
mode of discourse; the argumentative shaft misses us because "we" are
no longer "there." It is this experience of the contradictory repressions
engendered by myriad social roles that phenomenological theory en208
See sufn:a notes 193-98.
592

772
(Vol. 133:685
abies us to grasp, a point that Sartre's philosophical method demonstrates, but does not sufficiently stress.
. I am not trying to say that our beliefs should be arbitrarily contradlctor_y. N_or am I arguin_g that social power should be entrenched by
allowmg Its defenders s1mply to change the social role "speaking
through them" whenever the contradictions become too blatant. What I
am saying is that it is a mistake to confuse the neat Spinozan lattice of
an argument about legitimation with the dense tangle of our actual experience of social life. It is ridiculous to believe that one could disrupt
the massively entrenched set of power relations and collective fantasies
that "constitutes" repression in our society simply by attacking one of
the more formalized and abstract fantasies and claiming that the rest
are "dependent" on it. The lines of logical entailment are not the
threads that hold together the patchwork of social reality. To believe
otherwise is to make a tactical as well as a theoretical error.
Of course, the picture of a jurisprudential. fault line rendering
"liberalism" unstable is more thap just a seductive illusion. It is true
and morally liberating to think this way when one is within those social
discourses where the highly formalized picture of libt:ra!ism defines the
ground rules of discussion. It helps one to understand arguments produced throughout the public sphere of society because of the "trickle
down" of formalized liberal discourse. But to claim that the belief in
neutral law is a general social ideology like those attacked by feminism
or Marxism would be ludicrous. This is the element of truth and of
falsity in Anthony Chase's claim that CLS has replaced the '~historical
subject" of Marxist theories (the working class) by an "historical subject" made up of lawyers and law students. 2119 The Judgment implicit in
this. kind of criticism-that any radical theory must deal with (lots of)
su~Jects w~o are oppressed according to the measures of the grander
soc1al theor1es-appears at first to be both convincing and demobilizing.
It holds us to the standards of a kind of theory that has long seemed to
be impossible (and perhaps undesirable) to produce, and thus it offers
us no possibility of meeting our own, apparently self-imposed, criteria.
By doing so it partakes of the vices of grandiosity 280 without its virtues.
In its structural meta-theorizing it ignores a .very important subjective
experience: the experience that it is important to do analyses of "the
judicial de-radicalization of the Wagner Act" even if the only people
whose belief structures are shaken up are lawyers, law students, and
judges. It is important because these people are social actors too, and
"" See Chase, supra note 180, at 684 n.46.
110
See supra note 257.
593

1985]
773
because a local critique couched in the terms of their professional discourse may affect them more profoundly than a general social history of
labor law, be it never so scientific. The successful theory, the oneholding its subjectivist and structuralist strands together long enough to
have critical "bite"on the social world, is likely to be a local critique.
The greater the claims that we make for our belief structure, the wider
its supposed application, the more we will have to "privilege" or "armor" it against countervailing subjective beliefs. 'The more we privilegeit, the moie ossified it becomes. From there the road branches into futility and murderousness respectively.
How does all of this affect the other mediating devices that the
traces exhibited? I think that the answer is not quite the one we would
expect. In fact, it strikes me that it has unusually productive implications. I will recap briefly the mediating devices we encountered and
then describe what I mean by "local" critique.
2.
Mediatioh and the Theoretical Toolkit
The variety of mediating devices is striking. I have already described the notions of immanent criticism and Verfremdung. The critique of technocracy that l outlined depends on a notion of anthropologically deep-seated interests and ideal speech situations. Unger's
theory depends on a leap of faith and a quasi-logical depiction of the
deep structure af liberalism to achieve its goal of total critique. Duncan
Kennedy can reduce both professional cognitive dissonance and legal
theory to the workings of the fundamental contradiction by implicitly
relying on the formalist idea of law to localize the focus of his immanent critique. Peter Gabel's work on reification uses the Sartrean notions of phenomenology and personal choice on the subjectivist side and
objectivity and constraint on the structural side. Marxist theories have
been continuously transformed by the changes in mediating devices. At
first, the "engine of ideological production" was depicted as being the
concerted activity of the capitalist class. Then it was the objective determinacy of an economic structure that shaped the social world. Next,
ideological structures were depicted as relatively autonomous, depending on the substructure only "in the last instance." Finally, these pictures were turned on their head by Robert Gordon, who argued that
"in the last instance" everything depends on the individual subject.
Gary Peller's description of irrationalism and Duncan Kennedy's account of historical legal consciousness simply counterpose the two
strands as contradictory, but basic, features of our experience.
If we accept the "desirability of "local" critique, and if we believe
that our social theory should not be based on the analysis of large-scale
594

774
Critical Legal Studies.

[Vol. 133:685
ideologies, then which of these mediating devices will be useful for a

theoretical toolkit? The obvious answer-and, I believe, the wrong
one-would be to take "large-scale" and "local" at face value. One
could certainly say that Unger's theory, like Marx's, is perverted by its
urge for totalization. Similarly, the critique of technocracy seems about
as large-scale as one could get, postulating, as it does, not only "anthropologically deep-seated interests" but also an ideal speech situation that
represents both. the conditions of truth and the good society. On the
opposite side of things, Robert Gordon's disavowal of large-scale theories like Marxism in favor of a mapping-out of subjective beliefs appears to embody the kind of localized critique that I advocated. But I
think that this set of interpretations of "local" and "large-scale" simply
misses the point. Perhaps this rather overlong quotation from Michel
Foucault will help the reader to capture the experience I mean to
evoke:
I would say, then, that what has emerged in the course
of the last ten or fifteen years is a sense of the increasing
vulnerability to criticism of things, institutions, discourses. A
certain fragility has been discovered in the bedrock of existence-even, and perhaps above all, in those aspects of it that
are most familiar, most solid and most intimately related to
our bodies and to our everyday behavior. But together with
this sense of instability and this amazing efficacy of discontinuous, particular and local criticism, one in fact also discovers something that perhaps was not initially foreseen,
something one might describe as precisely the inhibiting effect of global, totalitarian theories. It is not that these global
theories have not provided, nor continue to provide in a
fairly consistent fashion, useful tools for local research:
Marxism and psychoanalysis are proofs of this. But I believe
these tools have only been provided on the condition that the
theoretical unity of these discourses was in some sense put in
abeyance, or at least curtailed, divided, overthrown, theatricalised, or what you will. In each case, the attempt to think
in terms of a totality has proved a hindrance to research.
So the main point to be gleaned from these events of the
last fifteen years, their predominant feature, is the local
character of criticism. That should not, I believe, be taken to
mean that its qualities are those of an obtuse, naive or primitive empiricism; nor is it a soggy eclecticism, an opportunism
that laps up any and every kind of theoretical approach; nor
does it mean a self-imposed ascetism [sic] which taken by
1985)
595
775
itself would reduce to the worst kind of theoretical impoverishment. I believe that what this essentially local character of
criticism indicates in reality is an autonomous non-centralized kind of theoretical production, one, that is to say, whose
validity is not dependent on the approval of the established
regimes of thought. 111
Taken this way, the idea of "local" critique has a dis#nctly ambigu9us aura. On the one hand, it refers to critiqu~s of parti~lar localities and their assO.Ciated discourses: mental hospttals and psychoanalytic theory, la~ scilools and the ideology of law as jt appears within
law schools-not merely the b~lief in apolitical legality, but the styles
of diction and types of analysis tqat are reward~d in the .classroom, or
the implicit messages as to which social problems are a~en~ble to fegal
amelioration. On the other hand, it can refe,r to the w1dest and !pOSt
totalizing kind of theory, provided one realizes the "limits" within
which this theory operates.:111 Unger's Knowledge and Politics2" gives
us a total critique of liberalism that tells us ~~othing about s_exual harassment in the workplace, racial discr!mination in the classroom,_ o~ the
multiple oppressions of a weifare office. It is a total. th~ory wtthm ~
fairly narrow locality, narrow because it~ ex~llence he.s. m th~ way tt
takes apart the formalized st~cture behmd hbera! pohttcal dt~cours_e,
and liberal p6litical discourse as narrow. For example, Unger s argument helps to deconstruct the reification inhere~t in our. ~otions o~ the
public and private spheres. Yet, to be a recogmzable cnuque of hb~r
alism, Unger's work must be in the very 'same public ~pher~, the ,artificiality of which it seeks to demonstrate. If l!~ger h~d wn~ten a boo~
about workplace relations and the social rellhttes of JOb asstgnments, ~t
would not have been seen as a work of political theory, because It
would be about the supposedly uncontentious realm of'private power.
M. FoucAUI,.T, supra note 142, at 80-81.
.
.
I certainly am not claiming 'that. t~e pr?bl.em~ o~, theoret,l,cal creauon can be
solved by giving each theory absolute vahd1ty w1thm 1ts sphere; such ~~ approach
would merely cause relativism to migrate from content to boundary-defim~10n. In the
rest of this section I try to explain what I mean by "limits"-not fipn spaual bo_undaries but instead the shifting patterns of discourse that make sense to people m the
diff~rent social r~les that they assume. Of course, the same dangers. a~e -posed by t~e
term "roles" as were posed by "limits." I am not imagining a pre~xuhng set of soc1al
categories, each with an instruction manual as to how one should behave. Role~ ~uch as
"law professor" or "student" come to seem like th~t (~ence th~ powe! of the c~ltlque of
social reification), but by even naming them, or the1r asso:1ated d1s~ourses, we run
the risk of reinforcing this disempowering appearance. (Nouce. that t~1s problem could
be described as the reappearance of the subjectivist/structuralist tensiOn on the metatheoretical level.)
R. UNGER, supra note 5.
596

776

[Vol. 133:685
So Unger's total critique is best read as local critique because it is

(and must be) implicated in the artificial categories it helps to explode.
Of course, there are many occasions in which people Gudges, teachers,
editorial writers, politicians, people involved in ethical arguments) produce the mode of discourse that Unger deconstructs. But the claim to
"totality" can be misunderstood because of the strong prejudice that
emanates from within liberal thought-the prejudice that the deepest
and most important level of what is going on is the theory of the state
with its attendant moral, p!lychological, and legal postulates. The point
is that such a structural prejudice, and the diminished visibility that it
implies for all the other little exercises of power going on in the world,
is part of the problem and not the solution.
In the same way, the other traces that make totalizing claims can
be seen to be local critiques provided we rid ourselves of the fantasy
that the limited structure of reason completely encloses our subjective
experiences of the social world. For example, within the rhetorical paradigm in which science is defended, a critique of technocracy, such as
was laid out eru:Iier, can provide invaluable tools for understanding and
deconstruction. One of the mediating devices used to constitute that critique was the so-called, ':ideal speech situation"-a rather good description of one way to test a theory in practice, which certainly avoids the
murderous te_ndencies of Leninistic vanguard theories. But, like all the
rest, it is only a partial mediation of the structuralist/subjectivist tension-among other things, it ignores the "Feuerbachian . . . bittersweet taste" of Marxism, its concern with "[t]he sensuous, the needing,
the feeling human being. " 264 Even if the ideal speech situation represents something more attractive than the law professor's heaven on
earth-endless debate, purged of emotion-it is but one tool to open up
the iron cage of a rationalized social world, merely one skeleton key for
the prison house of language. 2811
But just as the supposedly large-scale rationalist structured theories can be used in a)ocal manner, so the avowedly local, irrationalist,
and subjective theories can become reductionist, or can surreptitiously
seek the kind of "privileging" that they deny to others. For example,
Robert Gordon ~sserts that Marxist inquiries into the objective determinants of social reality are meaningless, precisely because it is social
realitY., that is, a reality constructed by subjects, by us, and not by
... Heller, Habennas and Marxism, in HABERMAS: CRITICAL DEBATES, supra
note 48, at 22.
- The phrase comes from a quotation by Nietzsche. Stt F. jAMESON, supra note
173 (epigraph).
19851
597
777
structures.288 But, as I argued earlier, this merely switches the privileging from the structuralist strand of hidden economic determinism to the
subjectivist strand of hidden personal choice.
This switch does not appear to be "a switch," merely a dissolution
into the activity of the primal subject. It does not seem to be an argument for a particular kind of knowledge; merely a critique of positivist
pretensions to objective truth. As chastened modernists, we might therefore be expected to accept the direction of the progression. If we cannot
"get to" objectivity, we must fall back into our subjectivity and its collective constructs. But if there has been one dominant strain in recent
philosophical thought, it is that the "subject" is by no means as natural,
as obvious, or as l:iasic a term as it appears. 287 The subject can appear
merely to be the crossroads of time and culture. The "selr' can appear
to be the artificial construct necessitated by a particular way of viewing
the world. We cannot merely sink back into the "residual" category of
subjectivity and claim that this view allows us to base our theories on
something uncontentious, if limited. So Robert Gordon's claim that
structures are created by social subjects is on the same epistemological
level as the claim that subjects' are.. created by social structures. But if
this is so, and if he is aware of it (as he obviously is), how are we to
understand his description of social theory, his stress on the choosing
subject? The wrong interpretation, I believe, would be to imagine that
this is the real description of social life, a "deeper cut" than that of
Marxism or any other theory. Instead I think that his argument, or
Peter Gabel's Sartrean synthesis of radical subjectivity and fateful objectivity, or Duncan Kennedy's local evocation of the existential foundations of a structured discourse all try to reweight the balance between
subject and structure, to capture momentarily our experience of the
world in such a way to permit us to act in it.
At this point the usefulness of the subjectivist/structuralist tension
runs out. Philosophy is always supposed to take the Olympian view, to
give the trans-historical- narrative of the oscillations of theory. And we
can certainly create such a narrative by watching the oscillation between structuralism and su~jectivism. We might even feel a sort of condescending superiority towards the poor theorists who frantically struggle to fix the correct boundary between the two. But that vision of the
philosophical enterprise is a pernicious one. We are in history. We all
need theory, we all already use theory, whether as scholars, or lawyers,
or students, or activists. The important question is, given the available
"" See Gordon, supra note 2, at 287; set also supra text accompanying notes
117-27.
Set supra note I 04.
598

778

[Vol. 133:685
tools of our time anq our individual situations, how will we manage to
"realize the unalienated relatedness that is immanent within our alienated situation," 1. . how will we manage to "make the kettle boil ?"111' So
if the subjectivist/structuralist tension provides us with a toolkit but
seems to deny us the possibility of ever constructing a perfect finished
product, we should not be dispirited because what we need is makeshift
work surfaces, not Platonic tables.
CONCLUSION
I attempted to do two main things in this Article. First, I described

and, in part, created a very idiosyncratic kind of critical legal theory.
The criteria for inclusion were that the ideas qad proved useful to me
in my teaching, scholarship, and political action, and that they had
some relationship to the people involved in the Conference on Critical
Legal Studies. My intention was not to objectify a body of thought
called critical legal theory and then cut it open for the edification of
some imaginary audience. Instead, I have tried to explain why someone
might want to think this way, and if they did, what they might find of
use in the ideas associated with CLS. Second, I tried to relate all the
issues raised in this Article (critical legal theory, its possible uses, the
discourses it deconstructs, the problems confronting social thought) to
the politics of reason. In the first part of the Article I concentrated on
the so-called rationalist and irrationalist tendencies in cr!tical legal
thought. In the second part I rejected this dichotomy in favor of the
tension between subjectivism and structuralism, which seems to me to
explain the difficulties and successes of social theory better than the
emotionally loaded and epistemologically reified rationalist/irrationalist
split. After attempting to unify the traces by explaining the experience
of the world that gives rise to the kind of theory described in the first
part of the Article, I used the subjectivist/structuralist tension to locate
and describe the mediating devices and theoretical tools that the traces
contai?~d. Finally, I sketched out a. vision of "local" theory-a partial,
nonprlVlleged account of particular areas of life that is informed by the
mediating devices that the tension had uncovered. ,Such a theory could
make use of immanent critique and Verfremdung, total critique and
the leap of faith, but it would do so in the realization that these devices
do not resolve the tension, they only defer it, and thus that they would
never ~reate the closed theory that wo~ld take ~istory out of our hands.
Here 1s a summary of my argument by way of an epilogue.
... Gabel & Kennedy, supra note 100, at 1.
Id. at 5.
1985)
599
779
Most of the important arguments in legal thought are epistemological in nature. The critique of law and economics scholarship, the debate over neutral pr-inciples or pure interpretation, the study of legal
language- and the Controversy over the possibility of apolitical decisionmaking can all be portrayed as epistemological at base. In other words,
legal scholarship, like all of our discourses, revolves around the questions of what it is to be reasonable and how it is that one can "know"
something. But it is not only Jegal theory that produces epistemological
arguments; .the most impoJ1ant disputes in social theory and some of
the most important conflicts in life revolve around the.politics of reason.
My claim was that the politics of rea5on, or the 'relationship between knowledge and power, is fundamental to any jdea of moral and
political action. The claim to authoritativeness is often, if not alwaY.s,
linked to a'claim to be producing truth or objectivity. Thus our moral
and political stance vis-a-vis the structures of power thal we "confront
on an everyday level must be based on an understandipg of the techniques for appearing to produce truth. This is true in the classroom as
well as the courtroom, in the workplace as well as irl the rarified atmosphere of social theory.
But if this is true, we need a mode of thinking about the power of
knowledge that avoids the bleak determinism of external structures or
the romantic exaltation of the passionate (but isolated) individual, the
Faustian, history-creating subject. The tension between these two tendencies is pervasive and inescapable. Everything from a theory of language (intentionality versus reified semantic codes) to a theory of political change (conscious transformation versus unconscious co-optation by
the structure) to a theory of doctrine (manipulable mush versus the
false closure of legal consciousness) will be affected by it. Yet the pervasive skepticism of a modernist conception of knowledge makes it hard to
believe that we have struck the point of essential balance between the
two. How did the traces get around this? The answer is that they used
a variety of mediating devices, each of which postponed but did not
resolve the tension. Perhaps the clearest example of this was the fourfold transformation in Marxist thought, as theorists tried to fine-tune
the su,bjectivist counterweight to structural economic determinism. Finally, the dominant strand was simply "flipped" for the subdominant
one and economic structures became the creation of acting subjects.
On one reading, this leaves social thought and moral and political
action in terribie shape. But I argued that this was not the case. Certainly it is fatal to the grandiose picture of a totalizing rational theory
that will both describe and prescribe social life and that rests on "neutral'' features of biology, or human nature, or historical progress. But
600
780
(Vol. 133:685
for other kinds of theory, it merely brings our expectations into line
with what we have been doing all along: making up partial, local maps
that sometimes seem to work and sometimes do not. If something
"drives" this kind of theory, it is not the progress of the World Spirit,
or the "real" implications of the Rawlsian "original position." It is
more like the tinkering pleasure of the bricoleur, 270 the artisan who
uses the materials that come to hand to create an artifact that is thus
shaped both by intention and by the constraints of circumstance. Critical legal thought is like that; it is shaped by the multiple constraints of
class bias, law review style, tenure requirements, and personal ability.
It is aimed at the transcendent fantasies of liberal state theory as well
as at the mundane objectification of workplace existence; and it evokes
our most basic, and most basically opposed, experiences of social
life-the personal impoverishment as we kowtow to a structure that we
ourselves have made, and the elusive moment of freedom when the feeling of necessity dissolves.
A bricoltur is somewhere in between a handyman, an artisan, and a jack-ofall-trades. The term "bricolagt" has been used by structural anthropologists to describe
the way in which social reality is "created." See Gabel, supra note 33, at 46. It seems
apt beeause the bricoltur',s expertise is based on the dialectical interaction of the available resources and the tasks to be performed, and this suggests the operation by which
we make sense of the' world-using the available reservoirs of cultural meaning for
purposes that both shape and are shaped by the process in which we are engaged.
"
Name Index
Adorno, T. 525
Alger, Horatio 589
Amsterdam 286
Anderson, Elijah 323, 327, 328, 348
Andros, Governor 183
Foucault, Michel 594

Freeman, Alan 369
Freud, Sigmund 36-7
Friedman, Lawrence 108, 125
Fuller, Lon 531-2
Balbus 18
Bell, Daniel 421
Bellomont, Governor 187
Benjamin, Walter 582
Bentham, Jeremy 5
Blackstone, Sir William 3-5, 11-12, 15, 100,
17Q-1, 537
Block, Mr Hans 177, 182-3
Braverman, Harry 121-3
Brecht, Bertholdt 566
Brenner, Robert 142-3
Brewer, Justice 205, 206, 207
Burger, Chief Justice 232
Gabel, Peter 4, 517, 538-9, 541, 555, 577,

581, 593, 597
Gade, Jack 183
Garcia, Inez 375-8, 382, 387, 388, 397
Garry, Charles 387
Garson, Barbara 321
Geertz, Clifford 562-3
Goldberg, Roberta 322, 326
Gordon, Robert 169, 171, 172, 544, 582, 584,
593, 594, 596, 597
Gramsci, A. 368, 554
Gray, John 176
Calley 243
Calvo Buezas, Tomas 334
Camus, Albert 417
Casner, A. 297
Chandler, Alfred 119-20
Chase, Anthony 570, 592
Choper, J. 523
Cicero 127
Clark, Bob 105
Cohen, Felix 513-17, 547, 567
Cohen, G.A. 141, 142
Colden, President 175, 180, 181
Cook, Ms 317
Coppage 464
Habermas, Jiirgen 518, 521, 527, 571-3

Hale, Robert 337
Hall, Jerome 278
Hamilton, Alexander 110
Hand, Learned 450
Harlan, Judge 199, 200, 202, 203, 204
Harrington 12
Harris, Trudier 330
Hart, Henry L.A. 231, 450-4, 458, 523,
531-2
Hedges 460, 463
Hegel, Georg 443
Heidegger, Martin 416, 581
Hobbes, T. 418, 426
Hoffman, Judge 374, 375
Holmes, Oliver Wendell 68, 99, 199
Horkheimer, M. 525
Horowitz, Ruth 332, 333
Horwitz, Morton 132-4
Hume, David 414-20, 425, 426
Hurst, Willard 100
Husser!, Edmund 581
Davis, Angela 387

Debs, Eugene 488
DeWitt 183
Didion 417
Douglas, Justice 286, 287
Doyle, Bertram 330
Ely, J. 523
Epstein 127
Fletcher 239, 249, 250, 271, 272, 273
Flores, Raul 387, 388
Jaffe 250
Jhering, Rudolph von 99
Johnson, William 184
Jordan, Susan 376, 377, 388
Name Index
Adorno, T. 525
Alger, Horatio 589
Amsterdam 286
Anderson, Elijah 323, 327, 328, 348
Andros, Governor 183
Foucault, Michel 594

Freeman, Alan 369
Freud, Sigmund 36-7
Friedman, Lawrence 108, 125
Fuller, Lon 531-2
Balbus 18
Bell, Daniel 421
Bellomont, Governor 187
Benjamin, Walter 582
Bentham, Jeremy 5
Blackstone, Sir William 3-5, 11-12, 15, 100,
11o-1, 537
Block, Mr Hans 177, 182-3
Braverman, Harry 121-3
Brecht, Bertholdt 566
Brenner, Robert 142-3
Brewer, Justice 205, 206, 207
Burger, Chief Justice 232
Gabel, Peter 4, 517, 538-9, 541, 555, 577,

581, 593, 597
Gade, Jack 183
Garcia, Inez 375-8, 382, 387, 388, 397
Garry, Charles 387
Garson, Barbara 321
Geertz, Clifford 562-3
Goldberg, Roberta 322, 326
Gordon, Robert 169, 171, 172, 544, 582, 584,
593, 594, 596, 597
Gramsci, A. 368, 554
Gray, John 176
Calley 243
Calvo Buezas, Tomas 334
Camus, Albert 417
Casner, A. 297
Chandler, Alfred 119-20
Chase, Anthony 570, 592
Choper, J. 523
Cicero 127
Clark, Bob 105
Cohen, Felix 513-17, 547, 567
Cohen, G.A. 141, 142
Colden, President 175, 180, 181
Cook, Ms 317
Coppage 464
Davis, Angela 387
Debs, Eugene 488
DeWitt 183
Didion 417
Douglas, Justice 286, 287
Doyle, Bertram 330
Ely, J. 523
Epstein 127
Fletcher 239, 249, 250, 271, 272, 273
Flores, Raul 387, 388
Habermas, Jiirgen 518, 521, 527, '571-3

Hale, Robert 337
Hall, Jerome 278
Hamilton, Alexander 110
Hand, Learned 450
Harlan, Judge 199, 200, 202, 203, 204
Harrington 12
Harris, Trudier 330
Hart, Henry L.A. 231, 450-4, 458, 523,
531-2
Hedges 460, 463
Hegel, Georg 443
Heidegger, Martin 416, 581
Hobbes, T. 418, 426
Hoffman, Judge 374, 375
Holmes, Oliver Wendell 68, 99, 199
Horkheimer, M. 525
Horowitz, Ruth 332, 333
Horwitz, Morton 132-4
Hume, David 414-20, 425, 426
Hurst, Willard 100
Husserl, Edmund 581
Jaffe 250
Jhering, Rudolph von 99
Johnson, William 184
Jordan, Susan 376, 377, 388
602
Kant, Immanuel 415, 418, 546

Katz, AI 4, 274
Kempe, John Tabor 168, 189
Kennedy, Duncan 554, 555, 563, 570, 576-7,
580-1, 586, 593, 597
Kennedy, Robert 379
Kent, Chancellor 3
Kierkegaard, Soren 574
Klare, Karl 149, 369, 570
Kline, Stephanie 393, 394, 395
Kolko, Gabriel 108
Kunstler, William 375, 388, 395
Lafave 248
Leach, W. 297
Lenin 584
Leydt, John 178-9
Livingston, Judge Robert R. 184-7
Livingston, William 169, 182
Llewellyn, Karl 99
Locke, John 12, 159
Lukacs, Georg 554
Macaulay 125
Maine, H. 95
Mannheim, Karl 554
Marshall 204
Marx, Karl 29, 99, 541, 550, 579, 583, 590,
594
Mazinello, John of Leyden 183
Michelman, F. 523
Montesquieu, Charles de 99
Morrison, Toni 302
Neumann, Franz 99
Nicholls, Governor 181
Nonet, P. 105
Palsgraf, Mrs 516, 568
Pashukanis 542
Peckham, Judge 199-202, 203, 204
Peller, Gary 546, 548, 584-6, 593
Posner, Richard 522
Pound, Roscoe, 99, 144

Prosser, William 314
Rousseau, Jean Jacques 426

Sacks, Albert 450-4, 458, 523
Sacks, Karen Brodkin'324-5
Sartre, Jean-Paul 24, 416, 539, 581-2, 592
Scott, John Morin 16~. 182, 248
Seale, Bobby 387
Selznick, P. 105
Smith, Adam 99, 164-6, 16S
Smith, William, Jr. 169, 182
Spencer, Herbert 199
Steinbeck, John 47
Stuyvesant, Peter 180, 181
Sutherland, Justice 472
Talleyrand 395
Terkel, Studs 322
Thompson, E.P. 4, 159
Tinker, Mary Beth 380
Tinker family 379-82
Tom, William 183
Torres 317
Trenchard 169, 171, 172
Tushnet, Mark 573, 574, 575
Tyler, Wat 183
Unger, Roberto 4, 48, 409-26, 533-5, 549,
555, 576, 577-80, 586, 593, 595-6
Valery 582
Weber, Max 99, 542
Wechsler 522
Weinglass, Leonard 375
Williams, Glanville 277-8
Williamson, 0. 105
Willis, Paul 333-4, 335
Williston, Samuel 160
Wilson 248, 250
Wood, Gordon 183
Wright, Judge 226, 227, 228, 229

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Series Editor: Tom D. Campbell

Critical Legal Studies

NEW YORK UNIVERSITY PRESS

-~z35 .C755 1992

PART I LEGAL RULES AND LEGAL REASONING

Duncan Kennedy (1979), 'The Structure of Blackstone's Commentaries',

PART ll LEGAL mSTORY

Robert W. Gordon (1984), 'Critical Legal Histories', Stanford lAw Review,

PART ill SUBSTANTIVE LAW EXAMPLES

Mark Kelman (1981), 'Interpretive Construction in the Substantive

PART IV LEGAL PRACTICE

Critical Legal Studies

PART V FROM LEGAL THEORY TO SOCIAL THEORY

James Boyle (1985), 'Modernist Social Theory: Roberto Unger's Passion'

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I Legal Rules and Legal Reasoning

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b' tive but at the next moment it may appear manipulable.

La th first book on sue a IS

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ID Substantive Law Examples

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V From Legal Theory to Social Theory

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What is the Appeal of, CLS?

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The Rise of Technocracy

A Theoretical Crisis in Law Schools

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CLS outside the United States

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* Introduction copyright James Boyle

1991. Thanks to friends and colleagues for their comments

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why Kelman's mirror-image, contradictory visions cannot be convincingly reconciled by some

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Legal Studies Movement.

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