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legal rule would not be mechanical and unfeeling because the rule itself
would have to be justified on utilitarian grounds: “Thus, in contrast to the
model of precedent, the process of justification does not come to an end
once the relevant rule of law has been located and applied. On the
contrary, a legal rule is a valid justification for any particular decision if
and only if that rule is itself justifiable on utilitarian grounds. And unlike
the model of equity, legal rules do play a role in the process of justifica-
tion. Consideration of justice or utility are relevant, but only to the
evaluation of rules of law, not to the decision in a particular case.”18

17
Christie, “Objectivity in the Law,” 1338.
18
R. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (Stanford,
CA: Stanford University Press, 1961), 84.
From Realism to feminist jurisprudence 253
Professor Wasserstrom™s suggestion seems to accomplish the miracle
that has always eluded legal systems, the marriage of objectivity with
doing complete justice to the particularity and contingency of each case:
Requiring the courts to justify their decisions by appealing to legal rules
secures the litigants against judicial arbitrariness. Allowing judges to
disregard precedent and established rules in favor of some other
rules, when the principal of utility requires it, eliminates the drawbacks
of applying general rules. And in assuring such objectivity, Professor
Wasserstrom™s proposal seems to be the very antithesis of political
jurisprudence.
But the conception of law and adjudication that inspires his proposal
makes the contrast somewhat less striking. Professor Wasserstrom™s judge
is not an officer authorized to decide what established rules mean with
regard to particular occurrences. His job is not to decide whether what
some person or persons have said or done conforms to the conditions
stipulated by law. Professor Wasserstrom™s judge is something very dif-
ferent “ an arbitrator of conflicting interests who tries to produce “the
most equitable” consequences for all parties. Far from supposing that
justice has to be blindfolded because it requires deciding only one ques-
tion “ whether obligations laid down by the law have been met “ Professor
Wasserstrom asks the judge to consider whether the consequences of his
decision are “more desirable for the litigants than those of any other
possible decision.” In other words, the judge is not bound to decide
merely whether the accused had exploded a bomb to cause the death of
the alleged victim and in so doing has violated the law; he has to decide
whether using one rule or another will produce “a minimum of discomfort
and a maximum of satisfaction vis-a-vis the two litigants.” That the
decision has to be filtered through a rule does not affect the central point
of Professor Wasserstrom™s jurisprudence, that its concern is with satisfy-
ing the interests of the litigants: “The consequences to them of deciding
the case in one way rather than another are alone relevant to the question
of what shall be regarded as justifiable decisions.”19
The role of a legal rule in such a system is that of a working hypothesis,
whose acceptance or rejection depends on whether its consequences are
found to be satisfactory. That is why, although Professor Wasserstrom
favors using the principle of utility to decide whether rules are desirable,
he does not exclude the possibility of “sociological decisions” that would
use “the best evidence obtainable from all fields of empirical inquiry.”20



19 20
Ibid., 122. Ibid., 114, 115, 114.
254 The idea of law repudiated

Nor does the introduction of rules make the judge less of a legislator in
Professor Wasserstrom™s system than in the other proposals of political
jurisprudence. Indeed, he says explicitly that there is no reason why the
legislator™s question should not also be the judge™s question. His system is
designed to permit the judge to revise the established rule or practice
“whenever it can be demonstrated that the introduction of a new rule or
practice is more justifiable on utilitarian grounds.” To do otherwise, to
refuse to permit rules to be revised by the judge, he points out, “seems
little better than an uncritical acceptance of the moral and social status
quo.”21 Since in his system the courts are not bound to maintain the
established rules, they would not be bound by the errors of earlier pro-
cedure. This means that they would be unhampered by tradition: “They
could meet each case as it came along and feel free to decide it and
nothing more.”22
Professor Wasserstrom has not just refined or supplemented the trad-
itional idea of equity but radically transformed its role in the legal system.
Although it is true, as he says, that Aristotle wrote in praise of equity,
Aristotle understood equity as an occasional qualification on the usual
operation of the law. It is a qualification designed to correct the most
flagrant anomalies produced by adjudicating according to fixed rules,
which for Aristotle constituted the essence of law. Others, however, have
emphasized the dangers of equity. It was denounced by Kant as “a dumb
goddess who cannot claim a hearing,” and by John Selden as “a roguish
thing.” And William Blackstone warned against “the liberty of consider-
ing all cases in an equitable light. . . lest thereby we destroy all law.” But
Professor Wasserstrom, for all the complexity of his two-level system,
reduces the whole of law to equity. As a result, the judge in Professor
Wasserstrom™s system understands himself in much the same way as in all
political jurisprudence “ as a part of the political process. Although he
writes his opinions in a different manner and is required to think in terms
of the interests of the litigants rather than of the goals of the community
or group that he wishes to promote, he is just as remote from the judge
who is obliged to do nothing but interpret established law.

Critical Legal Studies (CLS)
At first, political jurisprudence claimed merely to be answering questions
overlooked by their predecessors. But in the 1970s a more aggressive

21
Ibid., 174 “75. See also: F. V. Harper, “Some Implications of Juristic Pragmatism,”
International Journal of Ethics 39 (1929): 269.
22
Wasserstrom, Judicial Decision, 134, 130.
From Realism to feminist jurisprudence 255
warrior entered the lists “ the Critical Legal Studies Movement (CLS)
whose headquarters was at Harvard and disciples everywhere. Led by
Roberto Unger and Duncan Kennedy, the CLS movement candidly
announced that they were out to prove that the rule of law as we know
it is a fiction. They were not all in perfect agreement. Some were avowedly
Marxists; others were not. But all the Critical Legalists, like all the other
advocates of political jurisprudence, were agreed in opposing what they
call “liberal legalism” “ the view that law is distinct from politics.
CLS scholars focused their attack not on the idea of rule of law directly,
but on the merits of liberal society. They were intent on proving that the
assumed connection between liberalism and the rule of law is erroneous,
and that in reality liberalism creates hierarchical oppression and gross
inequalities. According to Critical Legalists, liberalism places individual
liberty as its central value. Consequently, individuals are free in liberal
societies to choose for themselves what values they will embrace and how
they will live. All values thus become subjective and law functions to
protect citizens from illegitimate power as they go about pursuing their
own self-interest.23
Critical Legal Studies exceeded the efforts of previous critical theories
by moving beyond specific criticisms of various aspects of the legal system
to an all-out attack on the system itself. In Knowledge and Politics (1975),
a chief CLS text, Roberto Unger calls for “total criticism,” as opposed to
the “partial criticisms” of the past.24 He boldly stated that CLS is devoted
to making not merely a legal but also a cultural and political revolution.
He envisioned the birth of a new egalitarian society where the law would
serve to promote equality rather than domination.
Liberalism and the rule of law are inconsistent because liberal political
theory contradicts liberal legal theory. Andrew Altman explains this CLS
postulate: “The legal side is committed to the rule of law. The political
side is committed to neutrality and to moral, religious, and political
pluralism.”25 The pluralism of values extant in liberal states defeats the
rule of law by producing widespread contradictions, inconsistencies, am-
biguities, and gaps in the law. CLS scholars followed the lead of the
Realists by seeking to demonstrate the existence of these difficulties, but
transcended their efforts by linking such problems to a denial of the rule
of law. According to Unger, liberalism creates the problem of deciding


23
Andrew Altman, Arguing About Law: An Introduction to Legal Philosophy, 2nd ed.
(Belmont, CA: Wadsworth, 2001), 302.
24
Roberto Unger, Knowledge and Politics (New York: Free Press, 1975), 2.
25
Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, NJ: Princeton
University Press, 1990), 104.
256 The idea of law repudiated

how the rules that govern society are to be justified. In the midst of
competing and even contradictory values, how can lawmakers create
laws that citizens will find authoritative and binding? Inevitably, Unger
writes, “legislation has to choose among competing individual and sub-
jective values, and to give preference to some over others.”26 The plural-
ism of values will thus be translated into society™s governing rules,
creating a system of law built on conflicting principles. So, Unger says,
“there can be no coherent, adequate doctrine of legislation. . . on liberal
premises.”27 Critical Legalists have produced a substantial body of re-
search that documents the contradictions and inconsistencies prevalent in
all areas of law, both public and private. Obviously, this made more sense
as a critique of those twentieth-century liberal political theories which
found the authority and justification for law in the true moral principles it
embodied, rather than in agreement, as emphasized by other liberal
theories.
Perhaps a more important, and deeper, source of conflict in the law
stems from society™s commitment to totally contradictory philosophies.
Duncan Kennedy™s article, “Form and Substance in Private Law Adjudi-
cation,” argues that the law is shaped by two mutually exclusive ideolo-
gies, individualism and altruism. He describes individualism as the ethic
of self-reliance and self-interest, which he opposes to altruism, the ethic of
self-sacrifice and sharing.28
Kennedy™s discussion of individualism and altruism makes an import-
ant distinction between rules and standards. Laws written in rule form are
advantageous in minimizing judicial lawmaking and in maximizing cer-
tainty, but are disadvantageous in that they engender over- and under-
inclusiveness. On the other hand, standards are flexible and can be altered
to meet specific circumstances, reducing inclusiveness problems; but they
are also more likely to produce arbitrary application and uncertainty. The
virtues of rules are thus the vices of standards, and vice versa. Kennedy
finds a strong association between rules and individualism and standards
and altruism.
What Kennedy calls the rule of law “model” consists of the belief that
legal rules are deduced from first principles like free will and that rules are
mechanically applied to “fact” situations by a strictly neutral judge. The
rule of law is necessary in an environment of individualism to preserve
personal liberties in the face of extensive disagreement over political and


26 27
Unger, Knowledge and Politics, 85. Ibid., 83.
28
Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law
Review 89 (1976): 1767.
From Realism to feminist jurisprudence 257
moral beliefs. Thus, the implied connections that he sees between the rule
of law and individualism are many and various, and not at all unusual.
Both were associated, he says, with laissez-faire and based on the belief
that the less the state intervenes, the better the economic results. Both
individualism and the rule of law reject “result orientation. . . in favour of
an indirect strategy,” that is to say they reject the view that legal decisions
should be shaped so as to achieve desired results.29 Both conceive of the
legal system as a “limited set of existing restraints imposed on the state of
nature” and refuse to “extend those constraints to new situations.”30 Both
emphasize self-reliance “ thus in contract law, since rules are knowable in
advance, anyone who comes out badly from a contract has only himself to
blame.31 In short, the argument for rule enforcement is the twin of the
argument that those who fare badly in the economic struggle should not
be rescued by the intervention of the state. It is because the individualist
wants to restrict sharing and sacrifice that he opposes broadening liability
or liberalizing excuses and prefers a strict enforcement of rules. Individu-
alism thus provides good reasons for choosing rules over standards when
forming law.
The embrace of liberalism by Western culture has resulted in a legal
system dominated by rules. Indeed, Kennedy writes, “The rhetoric of
individualism so thoroughly dominates legal discourse at present that it
is difficult even to identify a counter-ethic.” But Kennedy believes just
such an ethic exists in the philosophy of altruism. Altruism “is the belief
that one ought not to indulge a sharp preference for one™s own interest
over those of others. Altruism enjoins us to make sacrifices, to share, and
to be merciful. It has roots in culture, in religion, ethics and art, that are as
deep as those of individualism.” Altruism™s focus on self-sacrifice and
sharing translates into the redistribution of goods, and its legal equiva-
lent, distributive justice.32 The altruist, as opposed to the individualist,
does not insist on the enforcement of rules, but prefers standards which
only direct the judge to seek certain results. That way, the altruist believes,
the judge will be encouraged to intervene to secure greater distributive
justice and to save the weak from their own folly. The altruist accordingly
denies that the legal arguments can be separated from moral, economic,
and political considerations. He denies also that the judge can avoid
making political judgments. For example, according to the altruist, when
the judge refuses to interfere with freedom of contract, he is not enforcing
the will of the legislature but giving private parties, and usually the
dominant party, what they want.33 This is a political outcome that the

29 30 31
Ibid., 1741. Ibid., 1736. Ibid., 1739.
32 33
Ibid., 1717. Ibid., 1761.
258 The idea of law repudiated

altruist deplores. He believes “that the judge should accept the responsi-
bility of enforcing communitarian, paternalist and regulatory standards
wherever possible.”34
Now that it has become obvious that laissez-faire does not secure the
splendid economic results that were once expected of it and more and
more people have become converted to the altruistic vision, Kennedy
informs us, the law has moved steadily toward altruism. Thanks to
altruist scholarship, judges appear more competent to make “altruistic”
interventions, and “virtually all the rules in our legal system” can be
understood in at least one sense to already impose “altruistic duty” and
are in effect standards and not rules.35 Therefore when the altruist urges
the abandonment of rules for standards, he is not proposing something
new but only recognizing what is already there.
The history of law, according to Kennedy, is a progress to altruism
in the course of a continuous struggle against individualism. Like most
CLS scholars, Kennedy finds the most telling illustration of this in the
development of contract law. It consists, according to Kennedy, of in-
creasingly numerous and successful attempts to compensate for the fact
that contracts are not always or even mainly made between perfectly
equal partners and that the weaker is made to suffer in the name of the
strict enforcement of legal rules. Over the years, judges moved by altruism
have actively enlisted state supervision to ensure that each party gets what
he ought to get, regardless of what was promised or performed. Thus, as
moral sensibility has grown, the law has become increasingly cluttered
with makeshift expedients introduced to remedy inequality. But these
expedients leave the fundamental inequalities untouched and make the
law a jumble of contradictions, containing both individualist rules and
altruist standards.
This dual commitment to rules and standards, individualism and altru-
ism, undercuts the consistency and clarity of the law. Kennedy concludes,
“we are divided, among ourselves and also within ourselves, between
irreconcilable visions of humanity and society, and between radically
different aspirations for our common future.”36 The plurality of both
individual and societal values leads one CLS commentator to describe
law as “a patchwork of irreconcilable ideologies,” which “faithfully
reflects the fragmentation of our political culture.”37

34 35
Ibid., 1767. Ibid., 1721.
36
Ibid., 1685. Kennedy also sees this conflict between individualism and altruism as shaping
the history of law in the modern era; see later discussion.
37
Andrew Altman, “Legal Realism, Critical Legal Studies, and Dworkin,” in Introduction
to the Philosophy of Law, ed. Jefferson White and Dennis Patterson (New York: Oxford
University Press, 1999), 134.
From Realism to feminist jurisprudence 259
Critical Legalists find important implications for the rule of law in the
law™s contradictions. They argue that for the rule of law to serve its end of
protecting liberty in liberal societies, there must be some method of
legal reasoning whereby citizens can come to know the meaning of the
nation™s authoritative laws and resolve their disagreements. Furthermore,
if people are to feel an obligation to obey the law, judges must be able
to justify their decisions on legal grounds, wholly independent of moral or
political reasons. Unger recognizes that “if the law applier cannot justify
his decisions [on purely legal grounds], because they appear to rest on his
own personal and subjective values, liberty will suffer. Those to whom the
law is applied will have surrendered their freedom to the judge.”38 Unger
believes that the plurality of beliefs in liberal societies creates the need for
a formalist method of legal reasoning, which he defines as “a commitment
to, and therefore also a belief in the possibility of, a method of legal
justification that can be clearly contrasted to open-ended disputes about
the basic terms of social life.”39 This vision of adjudication infers a high
level of legal determinacy, allowing people to accurately predict judicial
decisions.
One of the major themes of CLS is that the contradictions within the
law produce a high level of indeterminacy. They argue that if the law is
mostly indeterminate then legal reasoning is a myth and law is merely
politics. Altman explains the CLS argument: “doctrinal rules contain
so many gaps, conflicts, and ambiguities that they must be supplemented
by an appeal to underlying principles in order to attain a degree of
determinacy acceptable to liberalism and consistent with the commitment
to the rule of law.”40 Unger thus reasons that “formalism presupposes at
least a qualified objectivism” for legal reasoning to be possible given the
principles of liberalism.41 This objectivism clearly does not exist given
the conflicting political and ethical principles manifest in the law, leaving
judges to choose by some extralegal method which of several competing
principles to adopt. As there is no prescribed method for judges to choose
between opposing principles, they are left with great freedom to choose
according to the values they personally hold. Unger thus believes that
“the judge will inescapably impose his own subjective preferences, or
someone else™s, on the litigants.”42 The contradictions and inconsistencies


38
Unger, Knowledge and Politics, 89.
39
Roberto Unger, “The Critical Legal Studies Movement,” Harvard Law Review 96
(1983): 564.
40
Altman, Critical Legal Studies, 118.
41
Unger, “Critical Legal Studies Movement,” 565.
42
Unger, Knowledge and Politics, 95.
260 The idea of law repudiated

present in law make it impossible for judges to apply the neutral legal
reasoning that is necessary for the rule of law to exist. “An especially
important conclusion” for CLS scholars then, “is that no coherent theory
of adjudication is possible within liberal thought.”43
Legal historian Morton Horwitz extends the CLS assault on legal
reasoning by dismissing the classical theory of objective causation. He
explains that nineteenth-century Tory law was predicated on the notion
that it is possible, through the application of the objective laws of
natural science, to discover a singular event A that caused event B. This
old notion of “objective causation” has been replaced, according to
Horwitz, by modern theories which deny the “very possibility of
factoring, but one discrete event and seriously viewing it as ˜the cause™
of another.” The truth is that any event is the result of “a multiplicity of
contributing causes” and therefore “to impute a determinate causal se-
quence to any given event is in fact to construct a story that selects its
narrative from a literally infinite range of possibilities. There is no par-
ticular reason to select one narrative over another.” This “acknowledg-
ment of multiple causation” effectively serves to open “the floodgates for
judicial discretion,” leaving litigants subject to the personal biases of the
judiciary.44 Both Horwitz and Peter Gabel ascribe the old emphasis on
objectivity in law to a blindness to human purposes and a misguided
attempt to confuse social science with natural science.
In demonstrating the fiction of the rule of law, Critical Legalists also
desire to expose the illegitimacy of society™s institutions. A recurring
theme of CLS literature is that law preserves society™s unjust power
relationships: “The law™s perceived legitimacy confers a broader legitim-
acy on a social system . . . characterized by power.”45 The CLS attack on
law is thus part of a larger attack on an oppressive social order. They
believe these illegitimate relationships permeate society, including the
“power of capitalist bosses over workers, of judges over litigants, of
lawyers over their clients, of teachers over students, of adults over chil-
dren, of whites over nonwhites, of men over women.” All these relation-
ships “are based largely on might rather than right,” and “all of them
should be dramatically reconstructed so as to create a more egalitar-
ian society in which no one holds illegitimate power over anyone
else.”46 Unger sees liberal legalism as the “guard that watches over the


43
Ibid., 98.
44
Morton Horwitz, “The Doctrine of Objective Causation,” in The Politics of Law, ed.
David Kairys (New York: Pantheon, 1982), 202 (201“13).
45
David Kairys, ed., The Politics of Law (New York: Pantheon Books, 1982), 5“6.
46
Altman, Arguing About Law, 285.
From Realism to feminist jurisprudence 261
prison-house.”47 By exposing law™s role in perpetuating this system, Crit-
ical Legalists hope to bring about a cultural or political revolution that
will free people from illicit domination.
CLS finds in the current system of law personal alienation and the
perpetuation of hierarchical structures. According to Peter Gabel, law is
merely a reflection of “the alienation of persons from themselves.” It
consists, Gabel says, of “moments of interpretive activity arising in con-
crete social situations as an immediate modeling of social existence. This
modeling evokes a structured language that corresponds to exigent rela-
tions of material production, yet struggles against this structure towards
an understanding that would resolve its contradictions.”48 Diane Polan

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