jurisprudence - second semester

7/31/2019 Jurisprudence - Second Semester

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INTRODUCTION TO SECOND SEMESTER (MICHEL ROSENFELD GUEST LECTURE)

In this lecture Rosenfeld gave an overview of CLS and deconstruction (the two main schools we will be

studying in second semester) and their rebellion against traditional jurisprudence (what we did in first

semester). In what follows, we look first of all at the shortcomings which CLS and deconstruction identify in

formal jurisprudence, and then we look in more detail at the nature of CLS and deconstruction themselves.

1 The limits of formal jurisprudenceTraditional Anglo-American jurisprudence is respectable but it is limited in scope. It asks what can be described

as metaphysical or ontological questions about the nature of law. For example, it asks What is law? and Is

there a necessary connection between law and morality? The response of proponents of Critical Legal Studies

(CLS) and deconstruction is basically to say, These are coherent questions to ask ab out law, but who gives a

shit? These are not interesting questions. We all know we should disobey Nazi laws. So who cares whether we

should do so because they arent really valid laws (as natural law claims) or because they are valid laws which

dont cohere with morality (as positivism, on the other side of the traditional debate, claims )? CLS and

deconstruction concern themselves with a more interesting, fundamental question: What is the relationship

between law and justice? This is the question lawyers really need to ask themselves.

Dworkin was also interested in this question, actually, but he had a really limp answer: basically, I have the

right conception of justice or political philosophy (namely liberal egalitarianism) and I can generate from it a

uniquely correct answer to every legal question. Both CLS and deconstruction find this answer very weak, and

see the relationship between law and justice as highly problematic. To say, for example, that there is one

correct answer to the question of whether abortion is inconsistent with the US Constitutioneven though

there is strong disagreement about the answer and no textual evidence to settle itis obviously misguided.

There is far too much disagreement about values in any society to justify any system of law by saying it is

uniquely generated by a particular, uncontested political morality. So, in answering the fundamental question

we just identified, we need to do a lot better than Dworkin.

CLS says, then, that the laws in a society cannot possibly be deduced from or justified by the communitys

sense of justicethere simply is no single sense of justice shared by any community; societies are far too

divided in their ideologies and conceptions of the good for this to ever be possible. And, crucially, the law is

not and cannot be neutral between these conceptions. That is why CLS is often said to be concerned with the

politics in law, or law as politics; law is the battleground for these competing conceptions of justice.

Deconstruction is a bit more systematic than CLS, but the conclusion it reaches is very similar. In the

foundational text on deconstruction, Force of Law, Derrida writes:

To address oneself to the other in the language of the other is, it seems, the condition of all possible justice,

but apparently, in all rigor, it is not only impossible but even excluded by justice as law, inasmuch as

justice as right seems to imply an element of universality, the appeal to a third party who suspends the

unilaterality or singularity of the idioms.

Derridas point is that we all have our own notion of justicethus making a similar point to CLS, about the

multitudinous competing ideas of justiceand yet we each present it as though it is universal. We all elevateour own understanding of justice and think it is objectively correct and applicable to everyone. But, in fact, we


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can never achieve justice for the other,1

because of course the other does not share our notion of justice.

More importantly for legal theorists, it is the law which is the prime institution which claims universality for

itself, which claims to be objectively rational and the embodiment of societys shared sense of justice. But,

precisely because of this feature of lawthat it presents itself as being universally justit is impossible and

even contradictory to claim to do justice through law. Precisely because the law claims universality for itself,

the law is the antithesis of justice (because justice is not and cannot be universal).

Derrida also shows that justice through law is impossible by drawing on the work of Aristotle.2

For Aristotle,

justice consists in treating equals equally (and, by extension, treating unequals unequally in proportion to their

inequality). But there are different criteria of equality, for example need as opposed to merit, and these might

pull in opposite directions. If we are to do justice through law we need to give effect to these competing

imperatives in terms of general rules. So all general rules may be unfair in particular, exceptional

circumstances. For example, the No vehicles in the park rule will be unfair if a man in the park has a heart

attack and an ambulance must drive to him to save his life. Derrida says that in every case justice requires a

universal rule. This is because all humans are equal in value, and thus all rules must apply to everyone equally.

But, on the other hand, every individual is unique, and rules must in application address themselves to the

individuals unique qualities. Therefore if justice is ever to be achieved, it must be both universal and singular,

both contained in a rule and in its exception. Since these are contradictions, justice is impossible to achieve.

2 CLSThe law is of course a coercive system, a system wielding immense power over its citizens without their

consent. This is highly problematic for legal theorists, who have constantly sought to justify this coercion. They

have tried to point to some feature of law which morally justifies the coercive power it wields. The formal

school thought that laws regulated social and economic interactions in a rational way. For example, contract

law was thought to be rational because it facilitated fair market exchanges, abstracting from the individualsinvolved and seeing them simply as (for example) buyer and seller. Because the law orders human affairs

rationally, it is justified in using coercion over its subjects. (Or, at least, the law is justified when it is rational.)

The utilitarians said that law was justified because it is more bearable to live in a society subject to legal rules,

i.e. law is justified because (or when) it maximizes utility. The law and economics movement, relatedly, said

that law is justified because (or when) it maximizes wealth. And Dworkin said that the law is justified because

(or when) it accords with liberal egalitarian values. The point, really, is that all these theories sought to justify

the law, and felt that they had successfully done so.

CLS sees that there are problems with all of these accounts of the virtue of law. All of these, argued the Crits,

fail to explain adequately the relationship between law and justice. For example, what is wealth or utility ,

and why is that the only thing worth pursuing? And why is it just about maximizing each of those: What about

their distribution? By giving a simplistic and inadequate account of the relationship between law and justice,

all of these accounts fail to justify the laws existence. But, more than that, they conceal the fact that the law is

still in need of justification.

These accounts are also subject to another critique, this time an internalcritique. The basis of this critique is

that all law is indeterminate. This being so, legal reasoning cannot be as constrained as is usually made out.

1

Basically a pretentious way of referring to people other than ourselves. Get used to it because these motherfuckers love the term.2I dont really see what Aristotle adds to this point. My advice is to ignore Aristotle and just understand the basic point that there is

both justice and injustice in the generality of rules.


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Unger showed, for example, that contract lawdespite being always couched in neutral languageis

manipulated by judges, using the various rules and their exceptions, so as invariably to produce the legal

answer which best suits the most powerful group in society. Thus law is pure power politics.

But where does this lead us? Is law a waste of time? Some thinkers have concluded as much, for example the

leaders of the Cultural Revolution in China, who were prompted by their Marxist understanding of law to get

rid of it altogether. But CLS does not require this conclusion, and very few Crits have reached it. CLS is oftenconsidered to be purely negative in its approach, critiquing the orthodoxy but entailing no positive or

constructive conclusions whatsoever. It is true that CLS is purely negative, but this should not be understood

as a bad thing: there is great value in showing the edifice of formal law to be a mirage.

3 DeconstructionWe should note at the outset that there is a debate as to whether deconstruction is a pure methodology,

nothing more than a method of reading texts; or whether it has an additional, normative aspect.

The key underpinnings of deconstruction are as follows. All textsboth written and spokenare open to

more than one interpretation. All texts are inter-textual, i.e. depend for their interpretation on other texts.

All texts have their meaning transformed when they are interpreted. Thus we all give meaning to texts as we

read and then interpret them, and all texts have a future in that they will receive new meanings in time. Even

Roman history, which ended many hundreds of years ago, will be re-understood as the data are interpreted by

future historians. This is even truer of a developing, contemporary system like the law.

Although Derrida was French, his theory seems particularly well-suited to common-law legal systems. When a

judge sets a precedent on a previously-undecided issue, he creates a present law about a past dispute. But this

is not the end of the story: How will the precedent be understood in future? Will a motorized skateboard beunderstood to fall under the No vehicles in the park rule? The meaning of the precedent can never be fully

elucidated and will be continually developed forever.

We can see how difficult it can be, on the deconstructionist approach, to have a coherent view of law and

justice. If all texts are ambiguous, inter-textual and unstable, if we cannot know what laws mean or what they

will come to mean, how can we say that laws are just? Indeed, the core criticism levelled at deconstruction

over the years is that it leads to anarchy or nihilism or crude relativism; law in the hands of deconstruction

becomes pure force and violence without any justification whatsoever.

But there is arguably another side to deconstructionism, which is that it is not only a methodology but also an

ontology and an ethics. Its ontology is that the world is divided into self and other (this division being of

potentially many kinds, according to whichever group you happen to identify). These two can never know one

another. You can never know the pain or perception of another, or the meaning that another attaches to

things. There is thus an insurmountable ontological gulf between self and other.

The ethics of deconstruction is that we ought to endeavour to treat the other as much as possible in his or her

singularity. In other words, we must always try as far as possible to understand and respect the perspective of

the other. We can never succeed perfectly in this task, precisely because of the insurmountable ontological

gulf between self and other, but we ought to keep attempting to do so. One ought to be as inclusive aspossible, to endorse an ethics of difference (which is not crude relativism). It is here, in its ethical dimension,


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that deconstruction becomes positive where CLS is purely negative. The task of law is to try to take account of

the singularity of the other. The insurmountable gap means that perfect justice can never be achieved, but at

least there can be meaningful debate about where the law should lead.

How do the ontological and ethical dimensions mesh with the methodological aspect? Well, if the law is

indeterminate then it must be an instrument of political power. But the ethical dimension of deconstruction

stops this insight from descending into crude relativism; we are not forced into saying that every single legalinterpretation or legal outcome is morally correct. The ethical dimension allows us to say that a legal outcome

is morally better if it respects the singularity of the other, if it recognises plurality and the dignity of difference.

For example, in Bradwell v State of Illinois 83 US 130, decided in 1873, the US Supreme Court upheld a law

prohibiting women from practicing as lawyers. Justice Bradley reasoned that [t]he natural and proper timidity

and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life ... The

paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is

the law of the Creator. In 1996, however, in the case ofUnited States v Virginia 518 US 515, the Court struck

down a law prohibiting women from joining the military, reasoning that women are free to undertake any

occupation they choose. Deconstruction shows us, in its methodological dimension, that there is no definitive

interpretation of equality between the sexes. But at the same time it shows us, in its ethical dimension, that

there can be progress, a good faith attempt to develop a better interpretation, an interpretation which is more

inclusive and plural and open to the other (in this case, women). The past laws have evolved into a present

where no lawyer would ever argue that women were created by God to serve man. We cannot say how sexual

equality will be understood in future, but nevertheless the nihilistic conclusion is avoided.


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MARXIST JURISPRUDENCE

1 Moans about formal jurisprudenceAs Rosenfeld suggested, traditional Anglo-American jurisprudence is concerned with carefully defining what

law is. Harts system of primary and secondary rules will give you an insight into that issue. So will Dworkinstheory of law. But Davis doesnt give a shit about this question. Its much more exciting to ask ourselves how

the set of laws that currently exists came about. In answering this question Daviss job is to destabilise you, to

convince you that what youve learnt for the last three years is absolute nonsense and has no relevance at all

to the real world.

2 The basic point: laws and legal theories are grounded in a particular contextIn the 1977 Harvard Law Review, Peter Gabel wrote a review of Dworkins Laws Empire. In it he made the

point that Harts theory of law reflected a particular moment in the development of libertarian capitalism. The

individual was regarded as paramount, and the role of the State very limited. The law and therefore Harts

theory of lawreflected that particular historical and ideological context. Similarly, Dworkins theory of law is

reflective of a particular set of values, based on welfare capitalism and the liberal egalitarianism that underlies

it. The problem is that these theories, like all traditional theories of law, are presented in the abstract, as

though they are timeless and autonomous of their historical, economic and political context. They are not. We

must understand that all legal systems, and the theories devised to explain them, are tied to a particular

context and a particular ideology. In short, the point of Daviss lectures is to refute the ahistorical and

decontextualized approach of liberal jurisprudence. This is what Marx helps us to do. Marx also influenced CLS

and postmodernism, so Marx is a necessary precursor to what we will do later in the course.

There is a second, related problem: Because our legal education encourages the view that laws are timeless

and independent of their context, we are unable to engage meaningfully with the Constitution. If we are going

to take transformative constitutionalism seriously, and follow through on what ss 8 and 39(2) demand of us,

then we have to scrutinise every single legal principle. It is impossible to do that without realising that all these

principles are historically and economically determined. Roman-Dutch law, the foundation of our private law,

is a colonial importation for fucks sake! It is not neutral or objectively correct. Unless one examines it

critically, aware of its contingent nature, one cannot do what the Constitution requires. Moreover,

constitutional values like dignity, equality and freedom cannot be understood objectively, by looking them up

in the dictionary. They are political terms, deriving from particular historical contexts, and we must learn to

understand them as such. Again, this is what Marxist jurisprudence and related traditions help us to see.

3 Marxs essential ideasMarxism has three related concerns. Firstly, to examine the relations of subordination and domination which

characterise particular historical epochs. In feudalism, for example, there was massive domination by lords of

their serfs. In capitalism, there is massive domination by capitalists of their workers. Secondly, how do these

relations of subordination and domination manage to perpetuate themselves through so many epochs? And,

thirdly, how do we stop them from doing so? Our Constitution envisages a rupture from this pattern, so isnt it

absurd that there we as law students are not engaging with what an emancipated society really is?


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In the Preface to his Contribution to the Critique of Political Economy, Marx writes:

At a certain stage of their development, the material productive forces of society come in conflict with the

existing relations of production, or what is but a legal expression for the same thing with the property

relations within which they have been at work hitherto. From forms of development of the productive

forces these relations turn into their fetters.

Then begins an epoch of social revolution. With the change of the economic foundation the entire immense

superstructure is more or less rapidly transformed.

This is the essence of Marxs economic determinism. This is what we will explain in this section.

In a feudal society, there are certain forces of production: lots of labour, lots of land, and a bit of capital (like

simple tools). These forces of production are used in a particular way, giving rise to particular relationships of

production. These relationships of production are then reflected upwards into the superstructure, i.e. the

societys values, religion, and legal system. And it is this superstructure which in turn reinforces the production

relationships. So the elite landowners are the dominant class; as noblemen, they are seen as having (via themonarch) a divine right of ownership; and the legal institution of vassalage binds peasants to work the land of

their particular lord on his behalf. Thus the particular means of production existing in the society determine

the superstructure, and the superstructure reinforces the relations of production.

But technology then changes, causing a change in the existing means of production so that the new productive

forces come in conflict with the existing relations of production and thus triggers an epoch of social

revolution. So, for example, the steam engine causes the Industrial Revolution and henceforth capital (rather

than land) becomes the dominant productive asset. The relations of production fundamentally alter: the

capitalists become the dominant class, and factory workers bind themselves to work for the capitalists not

through feudal vassalage but through freely-concluded agreements. So technology causes a change in the

means of production, which causes a change in the relations of production, which causes a change in the

superstructure. Thus the fundamental legal institutions of modern lifeprivate property and the law of

contractcome into existence and enable and reinforce the productive relationships in the industrial society.

The change in the economic base (by technological advancement) is what causes the changes in the

superstructure, but the superstructure colours and reinforces the economic base. Thus the base-

superstructure relationship is reciprocal. So:

superstructure

relations of production

collectively, the base

forces of production

Once we understand the base-superstructure relationship, it becomes clear that our ideologies and theories

about the world are determined by the economic base and are historically contingent. Marx does not deny the

claims of the liberal tradition, for example that freedom of contract is a good thing. Nor did he deny the claim

of the classical economists that capitalism was the most efficient system of production yet devised. But he

tried to transcendthese traditions and show how the society which these traditions sought to understand washistorically contingent and determined by the economic base.


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If you accept this, law is left in an unfortunate position: if laws are determined by the economic base and do

nothing except reinforce a particular set of production relations, what is the value of law? Law is then nothing

more than an instrument to reinforce and legitimate particular relations of production and has no intrinsic

value at all. Human rights, for example, are nothing more than an ideological obfuscation of the ruling class:

basically, they make us feel better about the inequalities in societyand, more importantly, make the

oppressed forget their own oppression.

Fortunately Marxs understanding of the law is not quite so simplistic. While he stresses the fact that the

economic base determines the workings of the superstructure, he is not a crude economic determinist. Just

after the quotation provided above, he distinguishes between the material transformation of the economic

conditions of production, which can be determined scientifically, and the ideological forms in which men

becomes conscious of this conflict and fight it out, which cannot. In short, human agency plays a role in the

reciprocal relationship between the base and the superstructure. This means that legal struggle can alter the

relations of production. For example, whether or not workers have a legal right to strike clearly shapes the

distribution of wealth and power within the capitalist system. This is a point well made by the Marxist historian

E.P. Thompson, who states that although Marx is correct about the emergence of fundamental legal

institutions, one can work within these to make real gains; once people have rights they can use them to either

defend existing entitlements or fight for new ones. Law is often oppressive, but its saving grace is that it

creates the space for the oppressed to occasionally make genuine gains. And thus, although lawyers have to

work within the system which has by-and-large been created by economic forces, they do play a truly

important and creative role in shaping that system.

Marxists have at various times reached the following six conclusions, all of which are related:

1. Law is politics, simply and inescapably a sight of political struggle.2. Law and the State are closely connectedin that law is a reflection of the economic base, the Stateensures that the production relations are reproduced, and law is a tool for the State to do this but at

the same time law has relative autonomy and leaves some space for political struggle.

3. Law does no more than mirror existing economic relations.4. Law always potentially coerces; the legal system is a monopoly by the State of the means of coercion.5. The content and procedures of law manifest the interests of the ruling class.6. Law is ideology, legitimating a particular economic system and inculcating the values of the ruling

class.

Although the Marxist analysis might seem to commit one to economic determinism in which law has no

autonomy from the economic relationships, most enlightened Marxists are not so crude. Raymond Williams,

for example, in his Marxism and Literature, argues that you cant use the building metaphor of the

superstructure being built on the economic base to truly understand society. Rather, the economic base and

superstructure react back and forth, shaping one another reciprocally; the law is shaped by economic concerns

but economic relations are also shaped by the law. Such a view allows us to escape crude economic

determinism and carve out a role for law.

But still, this revised Marxist account of law says both too much and too little. It says too much in that it still

maintains that the economic analysis is paramount, which many would dispute. It says too little in that it

doesnt tell us when law is relatively autonomous and when it isntwhich leaves us in no better position to

decide when the law should be reformed and when it should not.


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One of the difficulties is that Marx never actually wrote a book on law specifically: he died before he wrote

Volume 4 ofDas Kapital, which was meant to be about law. Those Marxists seeking to understand law have

therefore been forced to do so from the perspective of the base-superstructure paradigm, or break out of this

and invent a theory of law all of their own. For example, Pashukanis in his Law and Marxism argues that law

must be understood as a tool for the exchange of commodities, i.e. things valued monetarily rather than

according to their actual qualities. It follows that if we move away from capitalismand therefore away fromthe exchange of commoditiesthere is no need for law. Clearly Pashukaniss analysis is his own, not Marxs.

And its pretty fucking stupid.

The more helpful analysis is that legal relationships are exactly what they say: relationships between people.

The law constructs people as bearers of rights; the definition of legal personality is precisely the capacity to

have legal rights. Therefore the law governs relations between rights-bearers. By looking at law in this way we

can see that law shapes and constrains the relationships between people. For example, if the law decides to

recognise the existence of an enforceable contract between two parties, the relationship of those parties will

be changed quite drastically from the position if there was no such contract. If the law says that a worker has a

right to strike, that changes the relationship between the worker and his employer. If the law says that a wife

has a claim to her husbands property upon dissolution of their marriage, that changes the relationship

between the spouses. If the law says that, when person A does action X to person B, person A has committed a

delict (or a crime), that changes the relationship between A and B. The conferral on the members of

companies of limited liability, a celebrated legal institution in the development of capitalism, fundamentally

changes the distributional consequences of all future interactions between the company and other persons.

And so on.

The Marxist analysis of law basically points out the distributional consequences of the law within these

relationships. When we talk about law from the Marxist perspective we are talking about two intertwinedfactors: laws reproduction of a particular economic system, and the capacity of legal rights to determine the

distributional consequences within that system. That is the dialectical quality of law: it is neither entirely

oppressive nor entirely emancipatory.

Lets look at the Marxist analysis from another angle: What gives rise to constitutional law, consumer

protection legislation, and other supposedly progressive legal instruments which protect the downtrodden?

Liberals say its because we are so morally enlightened, hallelujah. Marxists try to see whether these

developments cannot be better explained by economic forces. For example, Marxists stress that slavery was

only abolished when it became uneconomic for slave-owners to have to provide permanent board and lodging

to slaves and their families; that women were emancipated only when it became more economically efficient

to allow them to join the workforce rather than sit at home and bake cookies; that apartheid yielded not

because whites suddenly became morally aware but because the process of industrialisationin other words

economic forcestriggered things like massive urbanisation and the rise of trade unions, in the face of which

apartheid was simply an untenable way to run a society.

So, on the one hand, the Marxist analysis emphasizes the economic forces in society. But, as weve been

saying repeatedly, it does not elevate this emphasis to crude economic determinism. As Engels wrote in 1890:

According to the materialist conception of history, the ultimately determining element in history is the

production and reproduction of real life. More than this neither Marx nor I have ever asserted. Hence, if

somebody twists this into saying that the economic element is the only determining one, he transforms that


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proposition into a meaningless, abstract, senseless phrase. The economic situation is the basis, but the

various elements of the superstructure: political forms of the class struggle and its results, to wit:

constitutions established by the victorious class after a successful battle, etc., juridical forms, and then even

the reflexes of all these actual struggles in the brains of the participants, political, juristic, philosophical

theories, religious views and their further development into systems of dogma, also exercise their influence

upon the course of the historical struggles, and, in many cases, preponderate in determining their form.

There is an interaction of all these elements in which, amid all the endless host of accidents the economic

movement finally asserts itself as necessary.

So economics is important in shaping history, but of course there are other factors at play. Fuck.

So we cant say there is any one clear and well -worked out Marxist position on law. This is because Marx did

not have time to write his complete analysis of law, and the base-superstructure metaphor is on its own

insufficient to explain the law. This metaphor gets into the uncomfortable position whereby we say everything

about the economy and nothing about the law; the law is left passive, which cannot be an accurate description

of reality. When we look at Marx on law we are able to get a sense of the complexity of law and its location in

a broader social analysis. We see its dialectical quality: it emerges in different forms as a result of differenteconomics forms. Feudal law is different to capitalist law is different to 21st century, post-IT revolution law. So

the legal system itself both shapes and is shaped by the prevailing relations of production.

There is clearly something more here, which is tricky to analyze.3

Law reacts backon the economic relations

and confers rights which did not previously exist. Thus the law constitutes an arena of struggle (at the same

time as it allows the ruling classes to exploit the workers). As E.P. Thompson made clear, workers do not just

submit to exploitation; they use the law to resist.

Marxism in its more sophisticated guises explains ideology and how we see the world only through a particular

framework. For example, debates in the press about economic policy invariably turns on certain neoclassical,market-based assumptions and values, which are so endemic to our thought that we simply have no other

toolkit for understanding these issues; we cant notsee things through this market-based framework.

Similarly, the current legal framework, which is inevitably shaped in large part by the economic relations, is

seen as natural, objectively reasonable, and necessary. We are unable to step outside the existing legal

frameworkwhich is why, when the Constitution demands that we do, we are so hopeless at it. Because we

are so deeply embedded in this particular worldview, we are resistant to the Constitutions demands that we

rethink it; we see the Constitution and its fuzzy values as a threatening interference with the coherent

framework which we know and love.

To recap: Economic forces are important in shaping the law. Nevertheless, the law does have a role to play in

shaping society within the constraints set by economic forces. The difficulty, for Marxist lawyers, is trying to

understand the laws role properly. What is clear is that the complexity of the analysis must lie in the interplay

between rights and repression. It is within that interplay that laws value, whatever it is, must be found.

3I know this is blatant repetition. Thats how Davis rolls.


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CRITICAL LEGAL STUDIES

1 Introduction: CLSs four main thesesThus far weve been discussing an external critique of the law, trying to understand legal change in terms of

factors and processes outside the law (economics, politics, and so on). Now we turn to the first significantinternalcritique, which looks at the practice of law from within. This critique is provided by the Critical Legal

Studies school, which draws on both Marxism and American Legal Realism. CLS developed a series of theses:

1. The attack on objective legal reasoningTraditionally legal theorists have stressed the objective nature of legal reasoning, the way the legal materials

determine legal outcomes. Judges must interpret the legal materials objectively, using its ordinary meaning,

and apply them to the facts so as to generate the correct answer. This attitude to legal reasoning that it is

objective and determinateunderlies the whole practice of law, and the separation between law and politics.

But the Crits argued that there is no objective process of legal reasoning, and no objective reading of a legal

text.

Advocates first questionwhen they learn a matter is set down for trial is, Whos the judge? Why would they

care about this if legal reasoning is objective? Furthermore, how can we explain the US Supreme Courts

decisions, where every single matter resolves into a 4-4 split between the conservative and liberal judges (with

Justice Kennedy the swing vote)? Why would the Court invariably split along political lines if legal reasoning is

objective and free of political convictions? They wouldnt, of course. Clearly legal reasoning is notobjective; it

is contested and each judge has his or her own views. Judges reasoning ultimately represents an ideological

choice.

This is not to say that legal materials are totally irrelevant. Clearly they are relevant and do help to shape the

law, especially in easy cases: we all agree, for example, on certain implications of the rule that A will must be

signed by two witnesses. But in adjudication (at least in hard cases), the framing of the issue by and values of

the judge are also highly important.

Let us consider Dworkins theory of law. He claimed there was one right answer to every legal question, even

in hard cases. His theory therefore seems irreconcilable with CLS. But, on closer examination, this is not really

so. The whole point of Hercules4

is that a superhuman judge is needed to come to the single right answer. But

this presupposes that there are a multiplicity of answers, many of which are plausibly correct to normal humanjudgesfor if the one right answer was immediately obvious to everyone, we wouldnt need Herculess

superhuman skills. The point is that even Dworkin accepts that there are many possible and plausible answers

to legal questions. CLS stresses this point about adjudicationthat it is not determined purely by the legal

materialsand its corollary that adjudication is determined at least in part by judges ideological convictions.

Any answer a judge provides is contested: his interpretation of the legal materials and the moral values which

he applies are not neutral or objectively correct.

4Hopefully you remember this cunt from first semester. Basically, Hercules is the hypothetical, omniscient judge who can find the

unique answer which best f its and justifies the legal materials.


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2. Law is indeterminate5Law is a reflection of deep-seated social forces, giving rise to a conflict between different values within the

law. It is therefore impossible for there to be a uniquely-determined right answer. For example, in contract

law, freedom of contract (premised on an individualistic right to drive a bargain at the expense of others) is in

perpetual conflict with altruistic ideas which manifest in such doctrines as duress and unconscionability.

Cowardly judges retreat into the notion of public policy, but this is a silly label which hides the fact that thesedoctrines are located in certain values, a desire to protect the weaker party from the excesses of freedom of

contract. But if these valuesindividualistic freedom of contract and altruistic concerns about fairnessare

mutually opposed, that creates massive indeterminacy in the law; it is impossible to give determinate legal

answers because judges decide cases based on the set of values to which they are attracted. These are points

best made in the seminal article of Duncan Kennedy, Form and Substance in Adjudication in the 1976 Harvard

Law Review. Essentially this tension between competing values underscores what we said earlier: judges must

ultimately make a value-judgment if they are going to reach an outcome. For the legal materials themselves do

not determine an outcome; in fact they point in opposite directions. The judge must inevitably make a value-

judgment in deciding in which direction to go.

These points are understood even by the most stinky, conservative judges. For example, in Sasfin v Beukes

[1988] ZASCA 94, where the Bench included fucking cunts like Rabie CJ and Nestadt JA, these points were

clearly expressed by Smalberger JA:

Our common law does not recognize agreements that are contrary to public policy. This immediately raises

the question what is meant by public policy, and when can it be said that an agreement is contrary to public

policy. Public policy is an expression of vague import (per Innes CJ), and what the requirements of public

policy are must needs often be a difficult and contentious matter. [The judge cites various academic writers

to see what public policy is.] The interests of the community or the public are therefore of paramount

importance in relation to the concept of public policy. Agreements which are clearly inimical to the interests

of the community, whether they are contrary to law or morality, or run counter to social or economic

expedience, will accordingly, on the grounds of public policy, not be enforced.

So even disgusting arseholes like the Appellate Division judges and writers from the fifties realized that public

policy was a vague idea which rests on contested ideas like justice and the interests of the community. Of

course these ideas are not capable of being objectively or uncontroversially defined. Ifthese idiots realize that

the law is indeterminate, it must be true.

Then, speaking about the deed of cession which the Court decided to invalidate, Smalberger JA writes:

It is heavily biased in favour of Sasfin ... It was obviously tailored, from Sasfin's point of view, to cover every

conceivable legal loophole, and to provide for all possible contingencies it sought to ensure maximum

protection of Sasfin's rights while at the same time subjecting Beukes to the most stringent burdens and

restrictions An agreement having this effect is clearly unconscionable and incompatible with the public

interest, and therefore contrary to public policy.

So clearly the Courts decision rests on the burdens and restrictions imposed on Beukesin other words, the

Courts concern for the weaker party. Thus public policy is being used to temper freedom of contract: if the

5Davis conflates the first two theses. I dont think it really matters, since they are obviously closely related. But it does mean that he

just repeats himself here.


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Court had only cared about freedom of contract, there would be no reason to invalidate the agreement. This is

what Duncan Kennedy was saying; that there are competing values in the law of contract (and of course other

areas of law). And judges need to take a side in order to reach an outcome.

If this point was not obvious before, it certainly should be now: public policy is now located in the values of the

Constitution. Again, even conservative pricks like Harms DJP in Breedenkamp accept this proposition. It makes

completely clear that adjudication requires value-judgments.

3. Foundational attack on liberal values6The classic civil rights are the centerpiece of liberal political theory, means by which the individual can resist

State interference and thus preserve his liberty. But the Crits are highly critical of these rights. They argue that

they promote an individualistic conception of the world and are antithetical to a communitarian view. This

point was actually made by Marx in On the Jewish Question. He writes that rights by their nature protect

individuals, and as such only protect those concerned with self-interest; they are egotistic and separate man

from other men in his community.

4. Debunks the division between public and private lawAnother central pillar of classic liberal legal theory is the public/private distinction. The idea is that the State

has immense power, and as such the law must interfere in the public sphere to constrain that power; but that

private parties are equally placed and as such it is unnecessary and illegitimate for the State to regulate the

interactions between such parties.

CLS attacked this distinction. It sought to argue that all law is concerned with the use and abuse of power.

And, moreover, power can be wielded by public orprivate parties. To distinguish public and private law on thebasis that the former is concerned with the control of the States gross power and the latter is concerned with

the interactions between free and equal individuals is spurious. This should be especially obvious nowadays,

where multinational corporations clearly wield far more power than the average government. That is why

administrative law has begun to move into the private realm. The foundational questions, say the Crits, are the

following: When is power being abused? What effects does this have on individuals? And how can we stop this

abuse? The public/private distinction distracts from these questions and obscures the fact that we need to ask

them in relation to allexercises of power, not only public ones. Horwitz writes:

A picture of a decentralised, comprehensive and self regulating market lay at the core of efforts to define

the publicprivate distinction. Just as the analogist division between public and private law presupposedthat voluntary relations of market exchange would usually make coercive regulatory interventions

unnecessary, the more general separation of activities into public and private spheres was also driven by a

conception of a neutral, a political and above all self regulating economic realm The most important

legacy of Realism was its challenge to the orthodox claim that legal thought was separate and autonomous

from moral and political discourse.

Here we see shades of a slightly more radical critique, which argues that the public/private distinction was a

legal fiction deliberately constructed to try and insulate market interactions from regulation.

6This bit was taught horribly and very briefly, but it doesnt seem at all central to the rest of what Davis says so I wouldnt worry.


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2 HaleWe have been trying to get alternative perspectives on the law. The four interrelated propositions we

discussed above and which are central to CLS derive from Marx and Realism. The Realist school is represented

in our reading pack by Hale. He presents an internalcritique of the law; he looks at what rules actually do

(rather than where they come from, which is what Marxism tells us).

Hales article was written in 1923, and was a response to the laissez-faire analysis of society by Carver, who

advocated the classical liberal model of the State in terms of which its laws have a limited role in the socio-

economic and political structure of society. Hale described Carvers preferred political structure as follows:

The government, he thinks, should exercise sufficient constraint to prevent destruction and deception, to

standardize measures, qualities and coins, and to enforce contracts, to conduct certain enterprises (like

lighthouses) which cannot well be carried on otherwise, to regulate monopoly prices and to control the

feeble-minded and the otherwise incompetent in their own interest. It should not coerce people to work,

nor should it, with rare exceptions, undertake to direct the channels into which industry should flow.

So, like most proponents of liberal capitalism, Carver thinks it is desirable for the State to get out the way and

let people engage in economic relations uncoerced. Thus a hallmark of this system is supposedly that it is less

coercive than other systems. Hales response is basically to show how it is a myth that liberal capitalism is

(relatively) free of coercion:

Such a scheme [liberal capitalism] has the appearance of exposing individuals to but little coercion at the

hands of the government and to none at all at the hands of other individuals or groups. Yet it does in fact

expose them to coercion at the hands of both, or at least to a kind of influence indistinguishable in its

effects from coercion.

Hales point is that all legal rules necessarily involve coercion when they are enforced. Davis illustrates this

with reference to the case of Shelley v Kraemer 334 US 1 (1948), a decision of the US Supreme Court. The

landowners in a certain neighbourhood had covenanted to prohibit the sale by any of the landowners of his

property to a black person. This covenant was challenged as being inconsistent with the US Constitution, in

particular its equal protection clause. The defendants argument was obvious: The Constitution only has

vertical application, i.e. application against the State, and in this case there is no State action involved; the

covenant is a private agreement between private parties. Thus, even blatantly racist contracts like this one

cannot be said to be inconsistent with the Constitution. Clearly, then, the defendants argument relied on the

classic liberal distinction between vertical and horizontal application of a supreme Constitution. But the US

Supreme Court rejected this distinction. Their reasoning was that although the contract was concluded

between private parties, the enforcementof any such contract (in terms of contract law and so on) necessarily

involves State coercion; only with the State mobilizing its legal institutions can such a covenant have any

effect. If the State was to enforce the contract, it would be acting inconsistently with the Constitution, so the

contract is invalid and unenforceable. This sort of reasoning is very easy to understand through Hale, who

points out that the well-entrenched liberal distinction between State coercion and private legal interactions is

a myth. The enforcement of every rule, whether it is one of nominally private or public law, necessarily

involves State coercion.

Hale applies this point to liberal capitalism. The idea behind liberal capitalism is that the State stays out ofprivate relations, and so workers are able to enter into freely-concluded agreements with their employers.


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Coercion supposedly doesnt come into the private sphere. But this is not true. The State enforces the rules of

private property, which prevents the worker from using the land to support himself unless he owns it. Since

the worker invariably does not own enough land to support himself, he will starve unless he gets work from an

employer. He is therefore compelled to accept work from employers on whatever terms they are willing to

offer. The employer, who has absolute rights over certain resources, isby virtue of the legal rulesput in

such a position that he can say to the worker: Take it or leave my offer of work. Thus the supposedly free

agreements between worker and employer are actually underpinned by the foundational rules of the legalsystem which afford one party far more power than the other. In effect, the enforcement of those

foundational rules coerces the worker to accept work on the em ployers terms. The State, by enforcing the

rules of private property and contract law, is as deeply implicated in this system as in any other.

So we see that rules of law are necessarily based on a process of coercion, even when (as in liberal capitalism)

the coercion is not obvious or direct. Moreover, and as a result, all legal rules have distributional

consequences; a change to the legal rules changes the balance of economic wealth and political power. If you

were to change property rights such that the employer has less power than he does presently, the entire set of

distributional consequences in the society will change. Hale makes the point succinctly thus:

The distribution of income depends on the relative power of coercion which the different members of the

community can exert against one another.

Daviss own example of this point is provided by the rules of intellectual property law. If drug companies have

absolute rights to their medicines, then they can tell developing countries, even those who are facing a health

crisis, to fuck off if they cant afford the price named by the drug companies. The TRIPS agreement, the

comprehensive trade treaty which regulates international intellectual property laws, used to require very strict

protection of such drugs by member States. But in 2003 an exception was agreed to, whereby developing

countries were able to obtain generics if they are facing a public health emergency. This obviously has a

massive effect on the distribution of drugs. Thus all law uses State coercion to deeply influence the relations

between members of the society. It would be absurd to suggest that prior to the 2003 exception no coercion

was involved, that countries simply made free agreements to exchange drugs as they see fit.

Of course, the rules, in addition to producing certain power relations, are themselves produced within a set of

power relations. In other words, there is a dialectical relationship between law and politics: the law deeply

influences the political process but is also created within a certain political process. So, even though laws have

serious distributional consequences, this does not mean that we can easily manipulate the laws in order to

bring about the desired consequences. We cant easily change them, because changing them requires political

powerand power is of course precisely what the law is able to control and restrict.

It must also be borne in mind that Hale is emphatically not a Marxist. He was not saying that only capitalist

States involves coercion and that we must work towards Communism, where no such coercion exists. His point

was precisely that everylaw in everysociety whatsoever involves coercion. Thus Hale writes:

To take this control by law [over workers] from the owner of the plant and to vest it in public officials or in a

guild or in a union organization elected by the workers would neither add to nor subtract from the

constraint which is exercised with the aid of government. It would merely transfer the constraining power

to a different set of persons.

So law is not neutral and it never is.


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3 Daviss wank building on Hale and drawing on KennedyWhat ss 8 and 39(2) of our Constitution require us to do is to interrogate the distributional consequences of

our legal rules and decide whether they are creating or subverting the kind of society prefigured in the

Constitution. What are our ground rules and how do they affect notions of freedom and coercion?

In this regard consider the case ofPresident of the RSA v Modderklip Boerdery (Pty) Ltd[2005] ZACC 5. About

40 000 poor people were occupying a piece of private land. The owner had wanted an eviction order.

According to traditional, absolute property rights the owner was entitled to such an order. But it would be

impossible in practice for the police to somehow force 40 000 people to move. Therefore the Court reached a

Solomonic compromise: the squatters were allowed to stay on the land but the State had to pay the owner

rent at market rates until it had provided them with housing elsewhere (an obligation imposed on the State by

s 26 of the Constitution). Davis gets rock hard for this clever order. The fundamental point is that the Court has

changed the rules of ownership, which are traditionally absolute, in favour of a more progressive, non-

absolute, accommodating set of rules which fundamentally reconfigures the distribution of wealth and power

in our society. Of course the change to the rules was made for pragmatic reasons (because the police were

simply unable to move the squatters), but it is a change with profound consequences nonetheless. The point is

that each and every ground rule of the legal system has profound distributional consequences. By rethinking

those rules we rethink society. Wow!

When Duncan Kennedy discusses Hale (see prescribed reading) he emphasizes two central points. Firstly, it is

important to acknowledge and interrogate the rules effect on distribution. The rules which make up a given

legal system are not neutral or descended from Sinai or Oxford. They are constructed, and this construction

must be interrogated. Every single rule of law has significant implications for relationships in society. They are

not simply technical or abstract rules without real effects. Whenever a background rule in the society changes,the relationships in that society change. So that is the first point: every legal rule effects distribution, and so

the laws role here must be interrogated.

Secondly, Hales theory of law inverts the Marxist base-superstructure metaphor: where Marx emphasized the

causality running from economic relations to laws, Hale observes the fact that the rules of law actually change

economic relations. This is a point that we easily understand: it is precisely because we understand that laws

can reshape society that we are worried about a stinky, ultra-conservative cunt like Mogoeng J being made

Chief Justice. This is not to say that Hale is incompatible with Marx; as we repeatedly said, Marx understood

that the relationship between law and economic relations was dialectical. Hale simply gives us a deeper insight

into the causality running from superstructure (law) to base (economic relationships).

Now let us consider a real example of this. The case of Maphango (Mgidlana) v Aengus Lifestyle Properties

(Pty) Ltd[2011] ZASCA 100 was decided by the stinky conservatives at the SCA a couple of months ago (but is

now going to the Constitutional Court). A number of poor people were leasing certain premises. The owner of

those premises sold them to the respondent, who terminated the lease on reasonable notice and called on the

occupiers to either vacate the premises or accept a new lease agreement with rent about twice what theyd

been paying under the old ones. It was common cause that the respondent had had a right to terminate the

lease on reasonable notice. However, the tenants came to court arguing that the enforcementof this right was

unfair in the circumstances and therefore contrary to public policy, because it infringed their right to securityof tenure, a sub-aspect of the s 26 right to housing.


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Brand JA discusses the rights of lessees as against the rights of owners. He matter-of-factly points out that

lessees rights end when the lease is lawfully terminated, but that owners rights are eternal:

The duration of the lessees tenure is governed by the terms of the lease ... If the period of the lease is left

undetermined, it can be terminated on notice. If the period of notice is not specifically agreed upon, the

residual rules require that the notice must be reasonable ... Beyond the period of the lease, the lessee hasno security of tenure ...

The position of owners, on the other hand, is quite different. The right of an owner to possession is of

indefinite duration ... In this case, as I have said, the appellants had no security of tenure beyond the

duration of the leases. Put in another way, this security of tenure was circumscribed by the leases

themselves. It therefore cannot be said that termination in accordance with the leases, constituted an

infringement of their right to security of tenure.

On this basis it was said that the lessees had no rights at all against the owner, and so the owner was lawfully

entitled to kick them the fuck off his land on reasonable notice.

This reasoning is of course absolutely correct if you take the existing laws of property as a given . But Hale

shows us that one cannot do that. It is unacceptable to take for granted unquestioningly the background rules

of property law which say that ownership rights are unfettered, and that an owner can terminate a lease and

eject the occupiers as he sees fit. These rules have massive distributional consequences. And it is obvious in

South Africa that there is extreme insecurity of tenure for the vast majority of citizens. The law perpetuates

this position, and to assert and apply the rules of property law without interrogating them in light of these

facts is unacceptable. The SCA blandly asserts the existing grounds rules as though they are neutral. Hale

invites us to say, Whats going on here? The ground rules are reproducing certain patterns in our society, and

if we want to break out of those patterns we need to interrogate and change the rules. Changing the rules ofproperty law fundamentally changes the relations between owners and lessees. The SCA ignores this fact. But,

given our Constitution, do we not have an obligation to interrogate the values underpinning these rules and to

determine whether they are compatible with the values expressed in the Constitution? Hale points us in the

direction of doing this. Sections 8 and 39(2) mandate this interrogation most obviously, but in fact it is

immanent in our legal system more generally. Even the ancient rules of the common law (to take Daviss stock

example, that contracts contrary to public policy must be invalidated) require such an interrogation.

So, to recap: Hale is suggesting that the background rules are not neutral and each and every one of them has

real effects. But it is a point that we tend to miss, at least when discussing private law:

In the liberal model, law plays a major role in the form of the rule of law, a defining element in the liberal

conception of a good society. But the content of the background of legal rules is seen to flow either as a

matter of logic from regime-defining first principles (rights of bodily security, private property, freedom of

contract) or from the will of the people, or from both together in some complex combination. The

distributive issue is present, but understood as a matter of legislative intervention (e.g. progressive

taxation, labor legislation) to achieve distributive objectives by superimposition on an essentially apolitical

private law background.

There lies the point: when we study private law we need to consider politics as much as when we consider

public law and legislation. This is a difficult task, but Hale gives us the first step. We need to ask whether the


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background rules of our legal system comply with constitutional values, and, if not, how do we change them?

Hale is a revolutionary writer because this interrogation is almost never done.

For further reading on the development of Hales ideas by CLS scholars, see the Davis and Albertyn article. Also

see Kennedy (at pp. 327-334), who provides some very valuable further insights.

4 The ten propositions which summarise CLSTen propositions which summarise everything weve learnt about CLS:

1. Legal outcomes are undetermined by legal reasoning.2. Legal concepts are not self-defining and cannot determine outcomes.3. Legal constraint is in effect a process of interpretation.4. Legal norms and outcomes are underdetermined by politics and ideology.5. Judges bear responsibility for the social impact of their decisions.6. Legal rules play a significant role in the construction of social life.7. Rules of law have distributive implications.8. Rules of law reinforce certain cultural and ideological discourses.9. Many legal rules reside in the background.10.From all this flow transformative possibilities for society.

We now discuss these in more detail. Yawn.

1 Legal outcomes are undetermined by legal reasoningThis point flows from CLSs argument that there are pervasive gaps in the law. None of the formalist tools of

legal analysis close these gaps. Most adjudication in hard cases therefore requires a value-judgment to derivean outcome. Choices are therefore to be made in deciding the case, and these choices are influenced by

socially-constructed sensibilities and moral convictions. Of course, these convictions are contested. The

Realists argued that judges must be explicit and rigorous about the values which are guiding their decisions

(though we would now regard the methods they recommended as rather quaint).

This is not a radical claim that anything goes, that judges just say, What the hell . I like the plaintiff, so Ill

decide in his favour. It is a relatively modest claim: it is not saying that the law is totallyindeterminate, or that

the traditional legal tools (precedent, logical deduction) have no effect. It is just saying that theres something

missing between these tools and the outcome. And this missing link must be found outside the traditional

legal tools, in some idea of political or value-based reasoning.

2 Legal concepts are not self-defining and cannot determine outcomesLegal concepts dont simply admit of one meaning in an unambiguous fashion. For example, the law of

contract is fundamentally an attempt to mediate the competing principles ofpacta sunt servanda and freedom

of contract on the one hand, and fairness, communitarianism and good faith on the other. No amount of legal

doctrine tells you which set of values wins. Freedom of contract certainly encapsulates personal dignity and

autonomy, as Cameron JA says in Brisley v Drotsky. But theres another side to it: contracts also constrain the

parties and can thus lead to unfairness. So freedom of contract can get out of control, and duress,misrepresentation, and related doctrines apply the brakes. Thats the whole point of contract lawto strike a


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balance between these two. Were this not soif freedom of contract was the only value at playthen you

could teach contract law in one sentence: All agreements are enforceable, no matter what. But in truth there

are inherent tensions which mean you cannot simply read off an outcome by looking at the legal materials.

Rather, judges need to make a call on which principle must triumph in a given case.

3 Legal constraint is in effect a process of interpretationThe point here is that a judges being constrained by the legal materials (most ob viously judicial precedent) is

often a result of the judge choosing to be constrained, or at least interpreting the materials so as to create a

constraint. Again, this is a modest claim: it is not saying that a judge can abandon the legal materials at will,

but simply that the legal materials dont constrain absolutely or completely. Often the outcome is determined

by the materialsor why have law at all?but at some point the level of constraint yields or dissolves.

Why do we say this? Well, even ignoring the Constitution, the law always changes. For example, when Ewels

brought his delictual action against the police in the 1975 case of Minister of Police v Ewels, his lawyer

wouldve quite correctly told him that he had no delictual cause of action available to him. But the lawyer

wouldve said that the law should change, and so it was worth bringing the case. And in fact the judge did

change the law, abandoning the existing precedent which said that Ewels had no case. In short, the judge

decided to remove the legal impediments which stood in the way of Ewelss victory. So that is why the

constraints imposed by the law are really matters of interpretation.

4 Legal norms and outcomes are underdetermined by politics and ideologyThis point says that, contrary to the crude Marxist analysis, you cant simply read off a legal rule by analy zing

the economic framework. In other words, the set of rules is not uniquely determined by the base. Rather,

there is a dialectic between the law and the base. The law is itself underdetermined by the base, and the legalrules feed back into the material relations and shape them.

5 Judges bear responsibility for the social impact of their decisionsIf you accept the above, then it follows that judges have choices. If the legal materials do not determine

outcomes, if the materials are as plastic as suggested, then it means that judges are making choices to reach

their outcomes. For example, during his JSC hearing Justice Mogoeng was criticized for applying, in a 2004

judgment, a 1988 ruling by Corbett JA. In this ruling Corbett JA had reduced a convicted rapists sentence from

four years imprisonment to one years imprisonment. His reasoning was that the rape was not so bad because

it occurred within the family and thus the victim knew her rapist. Mogoeng defended his own decision, which

applied Corbett JAs ruling to reach a similar conclusion, by saying he had to follow precedent. Let us ignore for

the moment the fact that the 1988 judgment was overruled in 2001, and that the Constitution was enacted in

1994. Even someone as stupid as Mogoeng must have known that minimum sentencing legislation had been

passed in 1997, requiring life imprisonment for rape in the absence of compelling extenuating circumstances.

So Mogoengs decision to nevertheless apply the 1988 judgment was clearly a choice . Mogoeng must have

known that the precedent didnt actually bind him anymore, so he made a choice to apply it anyway. So

Mogoengs defence is extremely weak: CLS scholars will say, But hang on, you made a choice here, you fucking

prick. And the fact that you made that choice shows us something about your worldview (specifically, that you

were happy to endorse Corbett JAs misogynistic reasoning).


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6 Legal rules play a significant role in the construction of social lifeLet us consider two examples demonstrating the truth of this proposition. The first is the economic markets. In

truth, no market can exist without legal rules: at the very least, we need rules to allocate property and

regulate contracting. So the very idea of a market presupposes the existence of the legal rules which

constitute it. There is also no such thing as the market: since the market is structured by legal rules, there are

many different markets which could be created. We must ask: Which rules have we chosen? Which market isthereby constituted?

More interesting is the second example: family life. We tend to regard family life as being part of the private,

non-legal sphere. But in fact we know several examples of a change in the legal rules fundamentally

restructuring family life. When the Constitutional Court ruled that gay marriage was possible, this changed the

whole nature of family life. The same is true of all the preceding cases which had given homosexual couples

various rights. As these cases percolated through the courts, our conception of family life began to change

quite radically. Then in Volks NO v Robinson a woman who had lived in a heterosexual life partnership for

twenty years with a now-deceased man argued that she ought to be in the same legal position as a spouse.

That is, she argued that she ought to have a maintenance claim against the deceaseds estate. To Davis in the

court a quo it seemed obvious that she ought to have such a claim. But the majority of the Constitutional Court

held otherwise, saying that if the man liked it he shoulda put a ring on it. This was a highly ideological decision

and has had a serious effect on family life. If Ms Robinson had been in a homosexual relationship, she

wouldve had such a claim. The crucial difference, according to the Court, was that straight couples had the

choice to get married, but gay couples (at that stage, before the Civil Union Act) did not. What a cunt of a

decision.

7 Rules of law have distributive implicationsHere we come back to Hale. We previously discussed the Maphango case regarding the rights of lessees and

landowners. The SCA said that lessors control over his property is unfettered (except by the lease itself). This

conception of property has serious distributional consequences, as the case showed. If you give allthe rights

to the owner and none to the lessee, no matter how indigent he is, you are going to make bad shit go down. Of

course the existing rules do say that the owner has all and the lessee has none, but there rules are not natural.

That was made obvious in Modderklip, which we also discussed previously. Basically, the law is deeply

implicated in the process of distribution.

Similarly with contract law. We can wank all we want about the circumstances in which public policy requires a

contract to be set aside, but the inescapable point is this: we realize that unfettered freedom of contract has

certain distributional consequences, and we are unhappy with these consequences.

8 Rules of law reinforce certain cultural and ideological discoursesThe legal rules display certain political or ideological frameworks which render natural particular

consequences. When a law has existed for a long time we tend to think, Its like this and always has been, so

this is the natural and immutable state of affairs. For example, the subordinate status of women was

rendered natural by the law for many centuries (and it still is in African customary law). There is nothing

natural about this, but it was made to seem natural because the rules giving rise to it were so embedded. The

rules thus influenced the ideological construction.


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9 Many legal rules reside in the backgroundMany rules reside in the background. This is related to many of the points weve just been making. Denniss

favourite example of this is again family law-related. The rule that parents get to choose where their children

live is basically never asserted in legal argument; no one thinks of this as a rule at all. But its there, and in fact

it fundamentally structures family life. No-one says, Children live with their parents because the law makes itso. We just think thats the way it is, naturally. But then this 16 year old bitch got pissed with her strict parents

and decided she was going to take them to court seeking an order allowing her to live at her friend s house.

Denniss first response was, of course, This is madness! But then he realized, Madness? No. This is the

veneer of normalcy created by the legal rules. We tend to take the rules for granted, so that any challenge to

their validity seems like madness. But its NOT FUCKING MADNESS!!! When we are forced to look closely at the

rules we see how mutable they really are. The childs psychologist said it was in her best interest to move to

her friends house, because her parents really were motherfuckers. So Dennis gave an interim order for a week

allowing her to do so, until the parties returned to court. The details of the order are not important. The point

is that the case took the background rules and pushed them into the foreground. But this hardly ever happens,

so we tend not to notice the background rules. In fact, we dont even realize that they are rules; we just think

that the state of affairs has arisen naturally.

10 From all this flow transformative possibilities for societyIf the law has the characteristics described above, then it is not just a neutral, eternal truth; it has ideological,

political and social consequences for society. It then stands to reason that the constitutional imperatives

encapsulated in ss 8 and 39(2) mandates us to enquire into these consequences. We must engage with the

normative framework of the Constitution to see whether it is consistent with the existing body of law. Does

the current legal system create the kind of society envisaged by the Consti tution? We are not saying itsuncontroversial what kind of society is envisaged by the Constitution. The point is simply that you must test

the laws against the vision you think it envisages, and not complacently assume that the law is perfect as it is.

It should be obvious from all weve been saying that CLS has a lot to offer us in thinking about these

constitutional imperatives.

5 Jaco on Tushnet7CLSs origins lie in Realism, so it is important to look at Realisms central tenets. Realism in its threadbare form

says that judges make decisions based on their personal convictions. (The inaccurate parody of Realism is that

it says that judges make decisions based on what they had for breakfast that morning.) The dominant view at

the time was that legal outcomes could be deduced rationally from various abstract legal concepts like

freedom of contract and property rights, so Realism was at that stage quite radical. The Realists pointed out

that these legal concepts were too vague, or indeed contradictory, to generate unique, rational answers by

themselves.

7

Because this is about CLS, Ive included it under this topic. But beware that what Jaco said here would (presumably) fall und er hissection of the exam, not Daviss. Jacos lecture was heavily based on Tushnet , and that is what the questions are apparently going to be

on, so I have basically summarised Tushnet (or quoted him wholesale) and thrown in Jacos free-styling as appropriate.


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The Realist critique was aimed at the level ofadjudication, not lower levels of legal interaction. Many leading

Realists, in fact, were themselves judges, who had become aware that their role was not simply to apply

deterministically the legal materials. Rather, the legal materials were indeterminate and thus the judge was

not able to adjudicate neutrally; he had to make a value-judgment.

Two strands developed out of this basic realization. Firstly, rule indeterminacy: rules are expressed in

language, which must be interpreted, and so there is no single objective meaning of the legal materials.Secondly, fact indeterminacy: the facts pleaded before a court are themselves indeterminate and come

structured in a particular way.

Can judges therefore never be neutral or independent? To an extent, the Realists indeed said that they

couldnt. But they never denied that judges should strive for objectivity, impartiality, and reasoned thinking. In

fact the Realists recommended that judges do careful policy analysis, making explicit the values and interests

at stake, and weighing these up as logically and rigorously as possible in coming to a decision. The Realists

believed that by and large the values at stake were shared by all members of society, and they had faith that

judges could balance the competing interests in a strictly rational way. They felt, therefore, that their method

of policy analysis would lead to objectively fair and correct decisions. So Realists were highly critical of the

orthodoxy of the time, but they did have a constructive project too.

CLS draws heavily on the Realist school, embracing their intense skepticism about legal rules and legal

reasoning. But the Crits attacked the Realists constructive project, using the critical tools taken from Realism

itself. Their problem was essentially that it is a myth to suggest that there is an objective way to weigh up

values and interests; everyone has different political convictions and the law is the battleground for these

competing convictions. When judges decide cases they are inevitably giving effect to a single, contested

political morality. The Crits attitude was buttressed in their second intellectual source, the work of Marxist

historians like Morton Horwitz, which showed that the law was an instrument of power directed primarilytowards the preservation of economic interests. CLS, then, took these insights and used them to show that law

was inescapably political, that judges are making political judgments and that legal rules are political

constructions. If Realisms supposed motto is Judges decide cases based on what they had for breakfast this

morning, then CLSs motto is that Law is politics. Unlike the Realist critique, CLS did not only look at

adjudication. The Crits also stressed the way the legal rules are created out of power relations, and are in

opposition or contradiction to one another.

It is important to note that the highly skeptical attitude to law adopted by Crits tells us nothing about their

political commitments; saying that Crits think all law is politics doesnt tell us what their politics actually

consists of. Their focus was on interminable critique (see further below), relentlessly reve aling laws and legal

reasoning to be a politically-constructed myth by trashing them (basically a deconstructive method of reading

legal texts) but not actually advancing a unified political agenda of their own.

One of the founders of CLS, Duncan Kennedy,8used the idea of the fundamental contradiction: humans by

their nature are subject to two warring moral impulses: individualism and altruism. Throughout our lives we on

the one hand want to be self-directed and on the other other-directed. This contradiction feeds into the legal

materials (which are obviously constructed by people). We therefore have substantive rules of law that are

individualistic and some that are altruistic.

8This stuff about Kennedy is a Jaco interlude. Im not sure how relevant it is.


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More controversially, Kennedy said that the altruistic/individualistic content of the law is reflected in or is

closely correlated with the form of the law. That is, individualistic laws tend to come in the form of all-or-

nothing rules, and altruistic laws tend to come in the form of flexible standards.9

Kennedy based this

correlation on an analysis of a number of private-law decisions of the US Supreme Court.

Kennedys criticssaid, however, that if the legal materials contentis contradictory or indeterminate then the

same must be true of theirform. In other words, rules in truth can approximate standards and vice versa. Forexample, the rule that every freely-concluded agreement is enforceable is subject to the standard that

contracts contrary to public policy are invalid. Therefore the rule itself really operates like a standard (since a

standard governs the rules non-application).

We said previously that CLS attacked the Realists method of policy analysis, the attempt to do value-based

legal reasoning in a scientific way. The Crits attack must be understood against the form of policy analysis

which was most popular at the time they were writing, namely law-and-economics. Law-and-economics says

that the correct solution to any legal problem is the one that is most efficient, i.e. the one that allows society

to achieve the most of what its members want given the existing distribution of wealth. CLS attacks this

analysis on three grounds:

1. The legal rules shape the distribution of wealth, so one cannot take the distribution of wealth as given;the rule which you choose will define the distribution. To give a simple example, the decision to

enforce a contract (as opposed to invalidating it) has an effect on the distribution of wealth as

between the contracting parties. One therefore cannot say that we must decide whether to enforce

the contract by taking the distribution of wealth between the parties as fixed.

2. Reducing everything to the maximization of efficiency is too simplistic. But if we relax this assumptionand broaden the range of values we ought to pursue, we end up where the Realists began: with a list

of values we ought to think about. In other words, as soon as we try and make law-and-economics

more realistic we end up with the platitude that we need to make a good value-judgment byconsidering a lot of different factors.

3. Legal rules and the distribution of wealth actually shape peoples preferences. Therefore we cannotsay that we must choose the legal rule which satisfies the most peoples preferences; the rule we

choose actually changes the preferences.

We previously gave a broad account of the way that CLS rejects the Realists constructive program of policy

analysis. They pointed out that judges are drawn from an elite, unrepresentative segment of society and have

been socialized into holding a particular set of beliefs. They did not believe, therefore, that judges could

rationally and objectively do policy analysis. This response was particularly firmly rooted in the Marxist class

analysis on which CLS drew.

More fundamentally, the Crits rejected the idea that judges could apply shared values to reach decisions. They

pointed out firstly that social values are too abstract, and indeed contradictory, to yield determinate

decisionsin other words, they are just like the legal concepts which the Realists had critiqued. Moreover,

people disagree on the values. Finally, and most profoundly, the legal rules structure society and its values. It is

therefore impossible to take the values as given and generate legal outcomes therefrom. The values will

change based on the outcome we choose, so we cant decide what outcome we want based purely on the

existing values! We need to know what values we want to create. And if the values are socially and legally

constructed we could simply decide to abandon our existing values.

9The rule/standard distinction is the same as the rule/principle distinction we learnt in first semester.


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What positive stuff can CLS say? Tushnet immediately concedes that, although all Crits had some

recommendations for reform, there is a deep sense in which CLS indeed has no constructive program.

Rosenfeld said something similar in the introductory lecture. And, as Jaco repeatedly says, the tradition which

has spawned CLS and deconstruction is one of interminable critique. But of course there is great value in

critiquing existing society, showing how common understandings of the way the law works are grossly

misleading, and showing how power really works. In fact, it can be argued that CLSs attitude precludes thepossibility of any stable constructive program: the whole point of CLS is to decentre and disrupt whatever

understandings happen to be settled, to criticise the existing order whatever that order is. The whole point of

CLS is to reveal the limits and the abuses of existing understandings and social orderings. It is true that many

Crits are seen as the advocates of socialism or its variants, but that is only because the current orthodoxy

advocates capitalism.

Any critique of the existing order, whatever its formeven a classic legal or social analysisis consistent with

the project of CLS, provided that three conditions are met:

1. The work should not be defended on grounds that suggest that something more enduring thaninterminable critique might result from following it through. In other words, the work must be content

to be nothing more than a purely critical and negative attack on the orthodoxy, and not try to replace

jurisprudence - second semester

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