Critique, Contradiction and the Law: Brit Crit History – The 1986 CLC

In 1986, people were wearing shoulder pads, watching Neighbours, and listening to Bananarama. Spain and Portugal had just joined the EEC (there was no EU), the London Stock Market had its big bang (massive deregulation), computers looked like the one below, and Margaret Thatcher was at the height of her powers, declaring a year later that ‘… there is no such thing as society …’

1986

1986 was also the year of the first major Critical Legal Conference (CLC). Archive documents kindly released by Kent Law School show details of the first discussions, committee meetings, and organisational questions, and that it eventually went under the title ‘Law, Critique and Social Transformation’. One text in particular stands out entitled ‘… on Critique, Contradiction and the Law’ and has been reproduced below. It is a proposal that the CLC ad hoc committee considered prior to the first event and which, despite a few objections, was generally supported. No named author is attributed to the text.

The text is of special interest insofar as it shows how certain themes continue to define the CLC while, at the same time, it allows one to appreciate how these and other themes have developed over the years.

At its inception the CLC appeared to resist a static self-identity and rigid predetermined aims in favour of fluidity and movement. This is still the case today though some might draw upon other terms to describe it, such as ‘inoperativity’ or ‘community to come’. (This is not to say that, in a moment of critical self-reflection, once the beautiful ‘Idea’ materializes, it remains pristine and totally immune to the operations of power – but is any ‘community’?)

The text also shows the centrality of critique conceived in terms of contradiction, while today some would recognise critique in a much more sophisticated, tentacular, and antinomic way. Capitalism is still central, but with more of a focus today on neoliberal ideology. The critique of legal formalism and positivism in favour of a much more expansive (social theory, philosophy, critical theory, inter/trans-disciplinary) approach to law also remains central. And there is still an emancipatory element, with the more recent turn to the political as exemplified by this blog (as opposed to previous turns to aesthetics and ethics).

The original text was typed using a typewriter. We scanned the text using optical character recognition. We further took advantage of modern technology and silently corrected the typos that the spell checker highlighted. We’re sure the original authors would approve.

CLT
First CLC LOGO

Conference to be held at the University of Kent, September 1986, on ‘Critique, Contradiction and the Law’

INTRODUCTION

As the first major conference of the C.L.C. it seems appropriate to place at the centre of the agenda the question of what generates the nature and limits of the Critical legal movement. By focussing on the ideas of critique and contradiction it is suggested that one is addressing what have been, and arguably must be, the driving forces of the movement.

Critical legal studies, in our view, is a movement, not only in the loose sense of a cohering of concerns and interests, but in the literal sense of a ‘moving’ or dynamic. Thus it is not, in our view, a position, a stance or a presence, a point which its detractors, who feel secure in a world of defined positions, even if they differ from their own, find difficult to grasp. Any attempt to give identity to this movement by reference either to particular practical goals, or to any particular intellectual position in the abstract, is to freeze the movement by reducing it to self-identity. What we should be concerned with is what generates movement, rather than identifies stasis, and this it is suggested, is to be found in the dialectical ideas of critique and contradiction.

From the earliest days of what has now acquired self-consciousness as ‘Critical Legal Studies’, the idea of contradiction has been a central moving force. For example, from the 1960s onwards, the contradictions between ‘Law in the books’ and ‘Law in action’, between formal and substantive notions of justice, between police powers and police practice, between legal ideology and legal actuality, for example in relation to the provision of legal services, have generated a body of more or less radical critiques based on the underlying motif of a contradiction between appearance and reality. Initially the critique that emerged took the form of an uncovering, a penetration of ‘the chains of illusion’ employing such master concepts as power, interests, class, gender etc., and was directed towards putting things right in the sense of restoring unity. The legal text or reading was the ‘partial’ text of reality and the recognition of its partiality, in both senses of the word, provided the possibility of a critical reading, thereby giving a provisional identity to the critical legal studies movement, namely as the negative critique of legal formalism.

From this new positivities arose, underlying schemes of the legal order, offering the apparent possibility of decoding law as the product, consequence or expression of something else — liberal values, market economics, or various historical determinants. These appeared to offer the possibility of’ resolving the apparent contradictions in the legal sphere. What distinguishes such approaches, which essentially involve the reception of a preexisting body of social theory and its ‘application’ to the object law, is that they seek for coherence in the abstract, that is to say they seek to dissolve the contradictions in reality through the construction of non-contradictory theoretical formulations, using such familiar devises in the academic analytic tradition as classification and qualification. For example the contradiction between the autonomy of legal thought and development, and the fact that this can be revealed as in some sense dependent, seeks reconciliation through the creation of concepts such as ‘relative autonomy’. Necessary though such conceptual constructions may be in the process of academic development, it is in our view essential that they do not gloss over the real contradictions in things, and therefore the possibilities of change.

In our view the central task of Critical Legal Studies is to disclose the contradictions in, and in relation to, legal phenomena in such a way as to realize the possibility of liberating change within them, for one of the crucial connotations of the concept of critique, as it has been developed through the philosophy of the Enlightenment, is the close connections, or in some cases identity, between truth, reason and freedom. While there is of course major controversy over whether law ever constituted a critique, that is, is a form of reason connected with an authentic if limited version of freedom from domination, in our view it is essential to assert for critical legal studies, that connection with freedom which liberal legalism claimed for itself.

While the exposure of contradiction has been central to the the critical project both generally and in relation to law two broad approaches have emerged. In one view, and this seems to have strongly influenced the U.S. Critical Legal Conference, the revelation of contradiction has essentially taken the form of a negative ideology critique. In Europe where the influence of Marx and Freud has been greater, the view that it is necessary and possible to supplement a negative critique aimed at penetrating illusions, and ideologies, by a positive critique aimed at understanding the constitutive conditions of knowledge has had a greater following. While differing on the possibility of positive critique both views share a deep distrust of reductionist forms of knowledge and recognize the necessity of both understanding law in an expansive way as part of a totality, and taking on the epistemological issues on which knowledge claims are based. Most crucially the critical movement distances itself from positivism, not only in its legal form but in general and rejects the fragmentation of knowledge specialisms that positivism justifies.

As critical legal studies is increasingly drawn into these larger issues of the possibilities of knowledge and the human condition, and hence into the major intellectual and political debates of our time, it would seem timely to hold a conference to sign post some directions. The organizers see the conference as having two principal tasks, firstly considering the negative critique of legal ideologies, and secondly discussing various possibilities of positive critique. To put it another way one can identify various targets of critique and various methods of critique. Among the various legal ideologies or targets of critique it is suggested, that rather than concentrate on the well worn ground of legal formalism, it is politically more important to focus on the legal ideologies which in contrast to legal dogmatics are presented as progressive, for example the law and economics school, which seems to have acquired the status of being the official version of progressive legal scholarship in the U.S., the law and society movement which under the law in context label is the equivalent ‘official’ progressive movement in the U.K., and the new liberal movement represented in the revival of rights theory and the writings of authors such as Hayek and Nozick.

In the present political climate when economism appears as the natural bedrock of human existence perhaps to a greater extent than at any other time in human history, the critique of economism as it appears through the law and economics movement is to take on a dominant ideology and hence by revealing the contradictions on which it is based to open. a space for truth committed to freedom. The target of ‘law in context’ offers the same possibility in relation to the ideologies of efficiency and ‘man management’.

On the second issue of constituting a positive critique it is suggested that papers and discussion be principally directed to five possibilities. The Marxist critique of Political Economy, the development of the Frankfurt School, the Feminist critique, the Freudian critique, particularly as it appears through the previous two versions, and finally what could be called post critical thought, that is to say the criticism of the critique of reason for example in the work of French ‘post structuralists’. This latter paradoxically puts once again on the agenda, through a maximal denial of reductionism, the consideration of Iaw as itself a form of critical thought.

While it is planned to hold general sessions on those suggested targets of critique and methods of constituting positive critiques it is hoped that these general considerations will centrally inform the proposed workshop sessions on particular areas of law, for it is our belief that the search for liberating forms of understanding must be solidly grounded in the possibilities of particular and specific areas. Central on the agenda of each workshop session it is hoped will be the question of what forms of understanding have a liberating potential and hence enable one to identify genuinely progressive forms of intervention, e.g. in relation to the prison system, the welfarist encroachment of private rights, the public legal regulation of bureaucracies etc. In our view one of the characteristic features of the critical tradition is that theory is not to be imposed from above onto the particulars of the world but realized from developing an adequate understanding of the way in which particulars are organized and represented in reality.

Underlying a conference on the theme of critique, contradiction and the law there is the hope that the visibility of contradiction in late capitalism suggests not only the possibility of critique but the imminence of crisis. Discussants no doubt will hold strong views on this issue, however we hesitate in putting the question of crisis at the centre of the stage, while we doubt the adequacy of our critical theories to ensure crisis can be equated with progress. Our more modest hope would be that we can begin to transform the awareness of the contradictions in, and in relation to, law in late capitalism into the basis of critique of law that is a movement to freedom. The first step in establishing the identity of the movement is through negation, by opposition to the official progressive ideologies, the second step is the realization of positive concrete possibilities.

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