The CLS Movement thematized domination, contradiction, instability, interpretation, distribution, personal empowerment, interpersonal connections, and the claims of reason. Attitudinally, it had a 70s contrarian and (American) left temperament. Like all movements, networking rather than consistency was its core. Aware of the centrality of legal discourse and actors to social arrangements and outcomes, the movement sought transformative impacts beyond the privileged walls of law schools. CLS lasted as much as any movement can expect to, and it had important (especially pedagogical and curricular) successes.
That was the movement. What about CLS Theory? In Reconstructing Critical Legal Studies, Samuel Moyn offers a fast-paced and yet penetrating inventory of theoretical problems and approaches in order to recommend the “social theory of law” variant of CLS theory.
Of course, a number of writings on CLS focus on the movement while others, like Moyn’s, focus on the theory. For those who study the movement, Princeton University’s Critical Legal Studies Records: 1977-1995 is a new resource, as well as some of the material generated in the 2020 conference that launched that special collection.
To fully credit Moyn’s theoretical intervention, consider two ideal-typical ways of relating to past theories. One is to center attention on collectives such as schools or movements as denser nodules in networks of theorists (see Randall Collins’ The Sociology of Philosophies for a comprehensive analysis of this kind of networking phenomenon). Examples of such schools and movements are many: ancient, medieval or modern natural law; glossators; sources or methods positivism; the historical school; idealism; jurisprudence of concepts; school of exegesis; jurisprudence of interests; sociological jurisprudence; realism(s); rationalism(s); CLS; CRT; feminism; TWAIL; LPE, and so on. Another way of relating to past theories is by identifying and isolating works that help move knowledge further regardless of where they are placed in terms of schools or movements. Moyn’s essay splits the difference between these ideal types: it focuses on works but approaches them as a project of school reconstruction. The effort seems clear: transition CLS from movement to school of thought.
I suspect that the way anyone relates to past theory is less a matter of choice in a vacuum and more akin to the experience of surrendering—sometimes later than sooner—to one’s intellectual dispositions and loyalties. A case in point, I read Moyn’s previous work as historical, with theoretical insights. With this essay, I think he surrenders to theory, with historical insights.
Moyn’s essay is proselytist. With characteristic insight and erudition, he proposes that (all) scholars interested in the “radical” understanding of law elect a version of CLS theory as their framework.
Moyn looked at three early CLS theory variants—Morton Horwitz’s, Duncan Kennedy’s, and Roberto Unger’s—in light of two problematics: the level of determinacy of law by environmental social forces acting upon it and the level of determinacy of interpretation of formal sources of law.
Moyn’s argument is not only that Unger’s social theory of law is superior in addressing those problematics, but also that something like the path Unger charted between causal and interpretative necessity and contingency is unavoidable if jurisprudence is to succeed while being “radical,” explaining that “a radical theory would emphasize that legal orders and rules matter because they institute, legitimate, and reproduce domination and oppression.” (P. 2.)
Indeed, if law is to be able to do all those bad things, it has to be sufficiently functionally and interpretatively determinate. But sufficient determination need not, as a matter of fact about law, be complete determinacy, thus leaving room for resistance and freedom. The takeaway is that “it is simply not necessary to choose between a vision of law emphasizing prevalent determination and determinacy, on the one hand, and one making room for residual flexibility and plurality, on the other.” (P. 2.) Thus, oppression cum residual freedom.
The essay then surveys LPE, Feminism, CRT, and Marxism from the viewpoint of the explanatory burdens legal theory carries and measured against Unger’s social theory of law. They all come short, although in varying manners and degrees. And to the extent that they do not, it is because they already operate within a version of Unger’s midpath.
There is much more in Moyn’s essay as, for example, the important job he envisions for a theory of ideology. And there are points that I think Moyn doesn’t get right or quite right. For example, I think that he overestimates any gain the adjective “radical” offers beyond progress in knowledge about “why the world is the way it is.” (P. 25.) For knowledge, nothing hinges on whether Unger’s greatest book, Law in Modern Society, is labeled radical.
But to my mind the most important contribution of Moyn’s essay is the rejection of the intellectual minimalism of legal academia. “There is no avoiding theory forever,” he writes, adding (in reference to LPE but generalizable) the critique of “autumnal quietism after the ‘summer of theory,’ an aversion to abstract and systematic intellectualism […].” (P. 25.)
There are always ambitious theoretical works coming out legal academia. What I think Moyn correctly challenges is the view that jurists and their students can get away with not studying them, seeking cover under a chronic conflation of clarity with simplicity. Perhaps the continuous mixing of CLS movement (that in time expired) and theory (that stands or falls on movement-independent merit) helps explain why the cover is working for so long in the American academic context?
I end with this thought. The closer to the ground jurists fly, the more law appears as a messy, contingent, and unstable product of interest-guided legislation and class-conditioned adjudication. Jurists flying in mid-altitude, tend to see law as an amorphous blob that is unyielding to systematic theorization, thus only susceptible to localized speculation. Those are remediable altitude problems. For the higher jurists fly, the more law is revealed as a highly complex and formalized phenomenon fully comprehensible only through grand, systematizing theorization. Moyn’s essay is a fine reminder of this truth.
