Family Feud or Realpolitik?

WHY HAS AN institution as stable and tradition-bound as Harvard Law School suddenly found its way into the holy trinity of the media--The New Yorker, The New York Times, and Time magazine? Public attention has focused on the "academic feud" between conservative and radical faculty members that has shaken the foundations of the Law School. Cited as the cause of the battle are the self-styled "unholy triumvirate" of professors Duncan Kennedy, Morton Horwitz, and Roberto Unger, and the Critical Legal Studies (CLS) movement they helped start.

What is downplayed in this fetishizing of Harvard Law School, however, is that CLS extends far beyond the arena of veri-turf squabbles. It is a national movement among the legal intelligentsia, drawing over a thousand participants to its annual conference.

We could pause here to marvel at how Harvard University has managed, as always, to corner the market on the best and the brightest--even if they be the most disruptive. On the other hand, we could begin to take a critical view ourselves and ask whether the academic politics at the Law School are real world politics or just intellectual infighting.

CLS is trying to show that academic feuds are not just intellectual bickering, but rather are battles against power structures that perpetuate inequalities and injustices in the social order. These are battles to politicize legal education, to inject debate about illegitimate hierarchy and oppression, about minorities and women and their relation to the law, into the calm logic of legal analysis--in more concrete terms, to get a Black professor onto the Law School faculty.

But CLS does not stop at the law school gates. It is a new radical social vision informed by critical approaches running the gamut from Gramsci to Derrida. Gone are the criteria of "scholarly excellence" and "intellectual integrity," the bywords of the conservatives under attack. In their place is a conviction that the law can never be apolitical, whether in courtrooms or classrooms.

For CLS politicizing the law does not mean adding new radical elements, but rather drawing out into the open what is already there. Conservatives charge that the CLS faction of the Law School faculty has "manipulated" the tenure process to hire more left faculty members. But how can anybody claim that CLS proponents have perverted something for which there is no objective norm, something that is already a debate and a political process? The reasonableness of the tenure process--likewise of the "science" of legal analysis which presumes to logically deduce the one right answer to legal questions--only enshrines existing power relations. That's why there aren't any tenured Black faculty members at the Law School. And only a handful of women among the University's tenured many.

CONSERVATIVES HAVE ONLY recently begun to turn around and attack CLS as the movement has become a force to be reckoned with. Academics and journalists cite the power struggles over tenure at Harvard as evidence of the movement's growing strength. However, they claim that CLS has had little effect on students.

It is true that huge portions of the student body at CLS strongholds like Harvard and Stanford have not suddenly tilted to the left. But they are learning their trade in a politicized environment, in contrast to the atmosphere of academic complacency for which law schools have been criticized. CLS teachers would not, in principle, want to see mass indoctrination of law students into their political perspective; they only want students to recognize that the law has a political perspective. Crits like Kennedy don't teach classes in CLS theory, but in contracts or property rights, the basics of first year law school. They do, however, teach those subjects differently.

Of the meager ten percent of law students at Harvard who do not go into corporate law, some will go into teaching. Of that latter group, Kennedy argues, students who are receptive to the CLS viewpoint comprise a sizeable percentage. By focusing on those students, and sending them out into the world of law school faculties with both CLS leanings and a Harvard or Stanford degree-ticket to a teaching position, CLS has been able to build itself as a national movement.

CLS IS SOMETHING of an anomaly; professional schools are not used to ideological controversy. Law school is a trade school. Law students, like medical students, are supposed to be in training, learning the skills of a profession. According to CLS, however, law schools teach more than objective skills, and hide political indoctrination behind claims of scientistic analysis.

CLS adherents differ from other lawyers who think there's something wrong with society and want to change it. On the one hand, CLS rejects the usual progressive liberal politics whereby cumulative reforms within the legal system, such as fighting for the rights of a minority group in a court case, are supposed to change society for the better. On the other hand, CLS does not strike like a band of intellectual terrorists from the fringes of society to smash legal and cultural icons. It tries to use two apparently contradictory strategies at the same time: fighting for someone's rights while fighting against the notion of property rights that is the basis of our legal system.

The CLS approach brings up two problems. First, fighting for someone's rights while fighting the system of rights is paradoxical. Not all CLS people share the same radical social vision of a society with anarchy built into it, of a state with revolution built into it, but this idea is implicit in their synthesis of radical theory and legal practice. A possible analogy for this notion of internal revolution is that the kind of confrontation and dialogue that goes (or tries to go) on between the government of Harvard University and student protestors should be happening continually at all levels of political life and that there should be laws that give both sides equal bargaining power.

The second problem is a paradox of having your cake and eating it too. How can we take seriously the revolutionary antics of a privileged group like a bunch of tenured law teachers? No matter how many protest marches and real world demonstrations they participate in, can CLS people live in their ivory towers and kick at the foundations at the same time? No one will argue that CLS has not turned Harvard Law School upside-down, but does it offer a viable program for social change?

Paradoxes and problems aside, CLS has sparked debate. The pitting of radicals, who say there is only right and left, against conservatives who say there is right and objective wrong has a broader cultural context. In a culture that has increasingly begun to attack the neutrality and objectivity of its own rational, scientific ways of doing things--a culture in which monoliths like "society" have fractured into class, race, gender and sexual politics--Critical Legal Studies is not out of place.