LAW: RHETORICAL PRETENCE OR APOLITICAL REALITY ?A discussion regarding the validity of critical explanations about the nature of law

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TOM HORDER – 300071807

LAW: RHETORICAL PRETENCE OR APOLITICAL REALITY ?

A discussion regarding the validity of critical explanations about the nature of law

ESSAY

LAWS330 JURISPRUDENCE

Word Count: 1793 excluding footnotes and bibliography

LAW FACULTY

VICTORIA UNIVERSITY OF WELLINGTON

2005

[1] In discussing the validity of the explanations of law offered by Critical Legal Theory (“CLT”) we must first elucidate upon what such explanations are, bearing in mind the ideological conflict existent within the theories themselves. Secondly, we should question their accuracy and usefulness both in terms of the present context and that from which they were conceived. It is the author’s general submission that critical theories do possess a substantial degree of validity as they serve to raise awareness of issues within our society that would otherwise be obscured by the facade of objective rhetoric.

[2] Jurisprudential movements throughout the centuries have sought an identifiable unity of law, whereby in determining the source of law we may make generally applicable statements about the nature of law itself. CLT is different in that, primarily, it does not seek to describe the law or prescribe what it ought to be. Instead it challenges the law from within by ‘legal insurgency’, seeking to expose by analysis and deconstruction, the assumptions existent within the system that are disguised by the laws neutral aesthetic.

[3] CLT was spawned by the failure of the great debate between Hart and Fuller to reach a finite conclusion. Following the Marxists and American Legal Realists, CLT rejects formalism and the concept of “one truth”. CLT rejects the existence of neutrality in law. It rejects the purported ‘natural order of things’, suggesting it to be a mere reflection of the white male middle-class Anglo-Saxon protestant agenda. CLT has a profound scepticism toward the institution of law as it proposes that law disguises its political nature and functions; that the reality of power is obscured while the existing order is rationalised in the rhetoric of equality, rights and the rule of law. Law is therefore not the gapless, logical, amoral, apolitical and internally coherent mechanism it has been portrayed as.

Marxist Legal Theory (“MLT”)

[5] MLT suggests that it is no coincidence that the law operates to the advantage of the powerful or that access to the law is directly related to socio-economic class. Law is seen as an instrument of domination used by the ruling class to maintain power and subjugate the ruled. The economy is the base of society and law is a mere superstructure that must only be maintained until the flame of capitalism is extinguished. However this dismissal of law has never been substantiated as its impracticality was apparent right from the Russian Communist Revolution in 1917 to the fall of the Soviet Union in 1991. But this failure does not undermine orthodox MLT completely as communism never had a true chance to flourish as arguably it was distorted under the Stalinist regime. The path to perfect communism was obstructed by the necessity to maintain defences, which required a form of positive law.

[6] MLT is presented as a scientific model of social development based on real phenomena. It sceptically rejects the idealistic assumptions of formal positivism as merely a disguise of the reality. However MLT also takes on a utopian optimism that falls victim to the same scepticism that it is itself possessed of as that the grandiose notions a classless, lawless, stateless, society are no more than impracticable. Further, MLT disregards the other dimensions of stratification that form the basis of other critical theories, such as race and gender.

[7] The validity of MLT may be difficult to comprehend in the context of current western society as the reasons behind its emergence are no longer as apparent. MLT was developed during the Industrial Revolution when the antipathy of the working class towards the system flowed naturally from its relative destitution. MLTs notion of law appears more valid then it does presently due to the dramatic change in access to justice in recent times.

[8] The view of law as a tool of coercive suppression of the proletariat not only makes unchallenged assumptions, but it also neglects both the multi-functional nature of law and the fact that a communist society, even in its teleological state, still requires laws to plan and regulate the economy. After all, the proposed ‘administration of things’ is merely law by another name. However MLT highlights the failings of the law under a capitalist regime and although its accuracy as to the nature of law may be lacking somewhat, it is useful as a tool for analysis and criticism of the status quo.

Critical Legal Studies (“CLS”)

[9] CLS evolved out of the decline of MLT and the political context of the 1970s. CLS sees law as based on power relationships and it seeks to look behind legal concepts that make the social world seem neutral and inevitable to determine what interest they serve. The law is chaos, it is globally indeterminate and the pretension of objectivity that separates law from politics is a sham. It exists to covertly maintain the status quo. In response to a suggestion that this cannot be true as the supposed ‘victim’ of law does win in many cases (as did the pauper May Donoghue in Donogue v Stephenson), proponents of CLS suggest that such instances are small concessions enabling successful concealment of law’s truly hegemonic nature.

[10] Like the realists, CLS proposes that in making decisions, the judge is not merely interpreting the words of the law that exists neutrally and independently of themselves. Rather, judges inevitably impose their own political values in making a decision. The validity of this suggestion is dependant on the ‘core’ or ‘penumbral’ nature of the case at issue. These similarities beg the question of whether CLS is merely an anachronistic attempt to reconstitute the Realist movement. This contention is wholly incorrect as the two theories are fundamentally different as, while Realism accepts the distinction between law and politics and the concept of neutral ...

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[11] CLS is often accused of nihilism in that it fails to go beyond deconstruction to create a new conception of law resolving the problems it identifies. Against this, Roberto Unger’s ‘Super Liberal State’ is often wedged as evidence to the contrary. But this supposed solution seems no more practical than that offered by MLT. In fact it distracts one from the true solution that CLS offers. Unlike MLT, the real aim of CLS is not the complete abandonment of current structures. Rather it is the improved internal awareness of systemic inconsistencies. This may not aid the perhaps-necessary social illusion that the law is somehow disembodied from its administrators, but it does prevent the passive acceptance of laws that may well be incoherent, inconsistent, and perhaps ripe for reform.

[13] Perhaps generally, CLS exaggerates the indeterminacy of law, perhaps it raises unsolvable problems, unsolvable due the fact that the system is, and can only be, administered by humans. But CLS does offer insight as it both illustrates the illusory nature of the separation between law and politics and highlights systemic contradictions so that we may take steps to reform, and thereby promote a coherent system of law. CLS has indeed played a large role in revealing the gap between rhetoric and reality.

Feminist Legal Theory (“FLT”)

[14] Generally, FLT sees law as reflecting the male perspective. Anne Scales’ ‘Tyranny of objectivity’ suggests that social patriarchy is so pervasive that it is absolutely invisible. This argument is justified in light of the role of women throughout history. Indeed among the first pages of the bible, within the text that arguably forms the basis of the ideology from which western society and its laws are derived, ‘woman’ is described as a ‘helper fit for [man]’. This divine historical account even suggests that woman was created from the rib of man. Even if purely metaphorical, this portrays women to be subject to man both in their creation and in their continued existence. This could explain why law is by nature patriarchal.

[15] Historical evidence of gender inequality within the law is abundant. However in the currant age of egalitarianism, the validity of FLT may have expired as gender inequality is widely recognised and the ‘problem’ may have been rectified. Indeed, the top offices of New Zealand, both public and private, are presently occupied by females. Furthermore, one is hard pressed to find a clear example of overt gender inequality in a current Act of Parliament. This is clearly an artificial notion however for two reasons. Firstly, it fails to recognise that in order to ‘succeed’ in this sense, women must often adopt traits more akin to the masculine persona. Secondly, the focus of FLT is not so much the formal legal equality between the sexes, rather the underlying ‘structural sexism’ that exists within the law.

[16] FLT is often the subject of the ‘no concrete solutions’ criticism. However the aim and solution of FLT is not ‘concrete’ revolution, rather it is empowerment: both in terms of raising female awareness of rights, and resistance against forces that constrain female identity within society. Such empowerment encourages society to progress with gender inequality in mind. Indeed, FLT has had a profound impact on the legal system. However the apparent lack of unity within FLT undermines the impact of the theory. If the solution offered by FLT is to raise awareness so that gender discrimination may be eliminated, the movement must unite and disassociate itself from its radical wing which has alienated many from the theory generally. Maximised support for FLT is the most effective cure for systemic sexism.

Critical Race Theory (“CRT”)

[18] CRT proposes that racism is endemic in law and society. CRT is sceptical of objectivity and naturally rejects the notion of ‘one law for all’, suggesting that more than formal liberal equality is necessary to eliminate systemic racial discrimination within the law. CRT identifies both the pervasive racism within law, and the lack of recognition that racial minorities views receive in mainstream discussion of law. In New Zealand, the such claims are historically valid. However, recently there has been a surge in recognition of Maori interests both by Government and its citizens.

[19] CRT suggests that racial minority interests will only be given credence within law where the price is low or where such interests are aligned with those of the dominant class. Perhaps racially progressive policies adopted by New Zealand are merely examples of ‘interest convergence’. However, this proposition is overly cynical as Maori perspectives are now a substantial consideration within the legislative process.

Conclusion

[21] CLT is often subject to the criticism that its explanation of law is too abstracted to be of practical value; that it offers no pragmatic solutions to the problems it identifies. This fundamentally misinterprets the theory. The primary purpose of CLT is not to describe or prescribe the law. Rather its purpose is to raise awareness of underlying contradiction, from which social change will naturally develop. The creation of awareness is the solution. However, if CLT is to have a greater effect on law and society, the various branches of the theory must seek to generalise a critique of the inherent domination existent within the system encompassing race, gender, class and ideology. CLT must unify its theory and practice as it is through such unity that it will transcend the sterility of the traditional schools of jurisprudence and make a real contribution to social life.

Bibliography

In order of use.

Cases

Donghue v Stephenson [1932] AC 562.
R v R [1991] 3 WLR 767.
Wi Parata v Bishop of Wellington and the Attorney-General [1877] 3 NZ Jur (NS) 72.

Texts

Carol Smart Feminism and the Power of Law (Routledge, New York and London, 1989).
Ian Grigg-Spall and Paddy Ireland (ed) The Critical Lawyer’s Handbook (Pluto Press, London, 1992).
Dennis M. Patterson (ed) A companion to Philosophy of Law and Legal Theory (Blackwell Publishers, Oxford, 1996).
Raymond Wacks Jurisprudence (5ed, Blackstone Press, London, 1999).
R.W.M. Dias Jurisprudence (5 ed, Stevens 7 Sons, London, 1985).
Hilarie McCoubrey & Nigel D. White Textbook on Jurisprudence (Blackstone Press, London, 1993).
Andrey Y. Vyshinsky The law of the Soviet State (Macmillan, New York, 1948)
Lord Lloyd of Hamstead and M.D.A. Freeman Lloyd’s Introduction to Jurisprudence (7ed, Sweet & Maxwell, London, 2001).
John M. Kelly A Short History of Western Legal Theory (Oxford University Press, New York, 1993).
H.L.A. Hart The Concept of Law (2ed, Oxford University Press, Oxford, 1997).
Ronald Dworkin Law’s Empire (Fontana, London, 1986).
David Kairys (ed) The Politics of Law : a progressive critique (Pantheon Books, New York, 1990).
Brian Bix Jurisprudence: Theory and Context (Sweet & Maxwell, London, 1999) 207.
Patricia Smith (ed) Feminist Jurisprudence (Oxford University Press, New York, 1993).
The Gideons International The Holy Bible (National Publishing Company, London, 1985).
Stephen Offei Basic Jurisprudence and Legal Philosophy (University of South Pacific, Suva, 1998).
Hilaire Barnett Introduction to Feminist Jurisprudence (Cavendish, London, 1998).
M. J. Matsuda, C. R. Lawrence, R. Delgado, K. W. Crenshaw (eds) Words that Wound: Critical Race Theory, Assaulive Speech and the First Amendment (Westview Press, Boulder, 1993).
Wendy Brown and Janet Hally (ed), Left Legalism / Left Critique (Durham, Duke Press, 2002).

Websites

Internet Encyclopaedia of Philosophy (www.iep.utm.edu)

Other

Anatole France Crainquebill (Argosy, United Kingdom, 1928).

The theories discussed herein discussed all subscribe to the ‘critical’ deconstructive approach. However it is false to suggest that they themselves are not to some degree normative as they all assert the need for a greater legal recognition of the issues to which they direct their concern. Also it must be understood that within the umbrella of CLT there is significant disagreement regarding substantial theoretical issues. For our purposes here, it will be necessary to examine only the more prominent views existent within the different schools so as to gain insight into the critical movement generally.

Carol Smart Feminism and the Power of Law (Routledge, New York and London, 1989) 69.

Ian Grigg-Spall and Paddy Ireland (ed) The Critical Lawyer’s Handbook (Pluto Press, London, 1992) ch 1.7.

Dennis M. Patterson (ed) A companion to Philosophy of Law and Legal Theory (Blackwell Publishers, Oxford, 1996) 270-271. The American Legal Realists such as Oliver Wendell Holmes took a critical approach in attempting to determine what Judges were actually doing in making their decisions. They believed that principles and rules do not decide cases as law is rationally indeterminate in that such directives may be interpreted many ways. They believe, not that deductive reasoning is making the decision, rather that judges go on a hunch derived from their idiosyncrasies and sociological background and justify it either way.

Be it race, class, gender or ideology.

Grigg-Spall and Ireland, above n 3, ch 1.7 .

Raymond Wacks Jurisprudence (5ed, Blackstone Press, London, 1999), 219.

Grigg-Spall and Ireland, above n 3, ch 1.7.

As Anatole France once wrote “the law in its majestic impartiality forbids both rich and poor alike to sleep under bridges, to beg in the streets and steal bread”. Anatole France Crainquebill (Argosy, United Kingdom, 1928) as quoted in Grigg-Spall and Ireland, above n 3, ch 1.7.

R.W.M. Dias Jurisprudence (5 ed, Stevens 7 Sons, London, 1985) 398 – It was believed that once capitalism had been defeated, once perfect communism was achieved, the law and state would ‘wither away’. See also John M. Kelly A Short History of Western Legal Theory (Oxford University Press, New York, 1993) 372.

Which was founded on the idea of “capitalist encirclement”- the awareness of the existence of hostile ideology in the surrounding states. Hilarie McCoubrey & Nigel D. White Textbook on Jurisprudence (Blackstone Press, London, 1993)114.

Andrey Y. Vyshinsky The law of the Soviet State (Macmillan, New York, 1948) 59-70. Vyshinsky suggested that utopia would be achieved only when the danger of capitalist encirclement disappears.

Hilarie McCoubrey & Nigel D. White Textbook on Jurisprudence (Blackstone Press, London, 1993)107.

Such scepticism towards MLT stems perhaps from its naïve view of human nature, which assumes that conflict is simply a product of divergent class interests and that if such interests, as perpetuated by law and state, were removed, utopia would ensue.

Lord Lloyd of Hamstead and M.D.A. Freeman Lloyd’s Introduction to Jurisprudence (7ed, Sweet & Maxwell, London, 2001) 986.

Widespread social ignorance of the law during this period meant that the privileged classes with a knowledge of legal matters were in position susceptible to abuse and manipulation of the law. Today however, with the development of information technology, the individuals of the populous are both more informed and steadfast in maintaining their rights as equal citizens before the law.

See Dias, above n 10, 402. Law has a number of roles including giving expression to the balance between interests, satisfaction of the hunger for justice and restraint on oppression by classes/individuals.

Wacks, above n 7, 206.

Dias, above n 10, 403.

CLS’s rejection of the apparent neutrality of law is understandable once viewed within the context of its inception. During the 1970s a theory of law suggesting a deep social consensus would have appeared inconsistent with the political reality of the day, where active social division existed on issues of race and foreign policy (Lord Lloyd, above n 15, 792). Even if the rejection of neutrality is not entirely valid in today’s perhaps relatively more convergent society, it was in decades past and therefore is worthy of historical analysis.

Lord Lloyd, above n 15, 796. The rule of law for example. See also Wacks, above n 7, 220.

Internet Encyclopaedia of Philosophy “Philosophy of Law” (www.iep.utm.edu)- The class of legal materials available rarely ever logically entails a unique outcome. There is no “one truth”.

John M. Kelly A Short History of Western Legal Theory (Oxford University Press, New York, 1993) 432.

[1932] AC 562.

Lord Lloyd, above n 15, 988.

Lord Lloyd, above n 15, 1046.

H.L.A. Hart The Concept of Law (2ed, Oxford University Press, Oxford, 1997) 263.

If the case deals with an unambiguous regulatory or ‘core’ legal matter, the judge’s actions are likely to be more mechanical. However in situations that are more contentious or ‘penumbral’ it is indeed inevitable that the judge will look to more amorphous sources to make the decision that may import an element of subjectivity into the decision.

Ronald Dworkin Law’s Empire (Fontana, London, 1986) 272

Wacks, above n 7, 223.

David Kairys (ed) The Politics of Law : a progressive critique (Pantheon Books, New York, 1990) 47.

Wacks, above n 7, 223.

Kelly, above n 23, 432-433. The concept involves a decentralised system of universal equality through the prevention of the development of insulated structures. The idea is explained by the following passage as quoted by Kelly at 433:

“an institutional structure, itself self-revision, that would provide constant occasions to disrupt any fixed structure of power and coordination in social life. Any such emergent strcture would be brocken up before having a chance to shield itself from the risks of ordinary conflict … [It would be] a polity …open to self-revision and more capable of dismantling any established or emergent structure of social division and hierarchy”.

CLS rejects the notion of ‘one truth’ therefore any further normative suggestion as to the nature of law would be automatically contradictory. McCoubrey and White, above n 13, 211.

It is a more indirect method of socio-legal change in that it seeks to alter the collective view of law, enabling its natural evolution to progress in a more self-aware manner.

It is difficult to analyse the validity of CLS’s view of law briefly as there exists within the movement itself, disagreement on major issues such as the value of the rule of law and whether law serves the interests of the powerful. See Brian Bix Jurisprudence: Theory and Context (Sweet & Maxwell, London, 1999) 207.

Lord Lloyd, above n 15, 104.

Within FLT, different approaches have been adopted, namely traditional liberal, Cultural, Radical and Post-modern. It focuses on areas of law such as pay equity, sexual assault and rape where this imbalance is most apparent. See Wacks, above n 7, 225-230.

Patricia Smith (ed) Feminist Jurisprudence (Oxford University Press, New York, 1993) 95-97.

The Gideons International The Holy Bible (National Publishing Company, London, 1985) 2. Genesis 2:18.

For example, the doctrine of Coveture.

Portia does not represent gender equality. There is of course debate as to whether there is such a thing as ‘masculine’ and ‘feminine’ essence, or whether these notions are merely patriarchal constructs.

Stephen Offei Basic Jurisprudence and Legal Philosophy (University of South Pacific, Suva, 1998) 162.

FLT has also been criticised by other theorists for purporting to express the view of women generally when in reality it expresses that of the white middle-class. Hilaire Barnett Introduction to Feminist Jurisprudence (Cavendish, London, 1998) 191.

Except in some ultra-radical theories.

Offei, above n 43, 162.

Patricia Smith, above n39, 101. Anne C Scales quoting Katherine MacKinnon: “The test in any challenge should be ‘whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status”.

This is exemplified through both the re-evaluation of the role of women under the amendments to the Property Relationships Act 1976 and the broadening of the concept of rape to include marital situations in R v R [1991] 3 WLR 767.

Wacks, above n 7, 231.

M. J. Matsuda, C. R. Lawrence, R. Delgado, K. W. Crenshaw (eds) Words that Wound: Critical Race Theory, Assaulive Speech and the First Amendment (Westview Press, Boulder, 1993) 5.

Lord Lloyd, above n 15, 1335.

Brian Bix Jurisprudence: Theory and Context (Sweet & Maxwell, London, 1999) 214

As can be seen through decisions such as Wi Parata v Bishop of Wellington and the Attorney-General [1877] 3 NZ Jur (NS) 72- there Prendergast CJ declared the Treaty of Waitangi “a simple nullity”.

This is illustrated by the implementation of affirmative action scheme regarding university enrolment.

The foreshore and seabed dispute supports this theory- In that situation, ninety percent of New Zealanders opposed the decision of the Court of Appeal to allow Maori to claim rights to the foreshore and seabed in the Maori Land Court. Parliament eventually overturned the decision.

In terms of giving New Zealand a unique cultural identity on the international plane.

However the general CRT explanation of law is useful in ensuring that minority interests receive the consideration necessary for the healthy development of this, our modern multi-cultural society.

As evidenced by the success of the Maori Party at the most recent election.

Wendy Brown and Janet Hally (ed), Left Legalism / Left Critique (Durham, Duke Press, 2002) 1-10. Here it is explained that the argument is often utilised that “[CLT] is so far removed from the language of the courtroom or everyday politics that it can’t be of practical value…[it] is a luxury we can’t afford”.

Grigg-Spall and Ireland, above n 3, ch 1.7.