“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.
Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.
My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.
Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean “democratic”) road to justice.
So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.
For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.
I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.
What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.
In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing; and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.
More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.
What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.
Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.