Monday, January 11, 2010
I rarely sit down and go through an entire law review issue, but I highly recommend reading the recent Pepperdine Law Review issue devoted to the school's recent conference, "Is There a Higher Law? Does It Matter?" The issue includes many strong papers, including particularly interesting ones by (MoJer) Patrick Brennan, Albert Alschuler, and Bill Brewbaker, but I was especially struck by Peter Gabel's "Critical Legal Studies as a Spiritual Practice." The "crits" are often subject to caricature, which is to be expected, I suppose, when a school of thought has built itself by painting caricatures of other schools of thought. Gabel, one of the founders of CLS, writes a very helpful explanation and defense of the movement. He writes that, "while appeals to a Higher Law certainly can be used to rationalize unjust power relations, I do not believe that they must do so; and even more . . . I believe CLS was always fundamentally a spiritual enterprise that sought to liberate law and legal interpretation from its self-referential, circular, and ideological shackles."
As Gabel portrays it, there is actually a great deal of synergy between CLS and the Catholic legal theory project. The indeterminacy critique of law, for example, is "basically a bummer" that leaves "the listener in a kind of secular liberal hell of scattered and disconnected individuals with no common passion or direction binding us together." This flaw helped unravel the movement because:
Not only did this erasure of moral purpose disarm the CLS movement of its most compelling spiritual feature -- namely its link to a powerful, transformative vision of a socially just world -- it also seemed to dismiss as unimportant, and even trivial and misguided, the experience of moral dislocation, social isolation, and meaningless that is precisely the most spiritually painful aspect of modern liberal culture.
Consider this vision of a CLS course in Contracts:
[The course] should subordinate its use of the indeterminacy critique to a meaning-centered critique emphasizing how the rules presupposing the legitimacy and desirability of individualistic, self-interested bargains . . . among an infinite number of socially disconnected strangers bound by no common moral purpose or spiritually bonded social community outside their respective blood relatives are rapidly destroying the planet, in part, by making use of liberal abstractions like freedom of choice that make it appear that this lonely destiny is what people really want.
What CLS must aim for, in Gabel's view, is "a new spiritual activism actively connecting Self and Other." I think the Catholic legal theory project is better equipped to provide substance to the bonds connecting Self and Other, but in terms of orientation, it sounds like CLS and CLT are, if not kindred spirits, at least spirits sharing many of the same concerns about law. Thoughts?