As I explained in a previous post, “Critical Race Theory,” with its denial of objective morality and neutral principles of justice, is essentially metaphysical materialism applied to race relations. While CRT has received a lot of media attention in recent days, “critical studies” of various stripes have been around for a long time. I was first exposed to them when I was in law school in the 80’s and learned about critical legal theory (“CLT”). Proponents of CLT (often called “Crits”) assert that the law is just another tool oppressors use to victimize the oppressed. Harvard’s The Bridge project summarizes CLT as follows:
A family of new legal theories, launched since 1970, share commitments to criticize not merely particular legal rules or outcomes, but larger structures of conventional legal thought and practice. According to critical legal scholars, dominant legal doctrines and conceptions perpetuate patterns of injustice and dominance by whites, men, the wealthy, employers, and heterosexuals. The ‘Crits’ argue that prevailing modes of legal reasoning pretend to afford neutral and objective treatment of claims while shielding structure of power from fundamental reconsideration. Critical theorists also maintain that despite the law’s claims to accord justified, determinate and controlled expressions of power, law fails on each of these dimensions and instead law mystifies outsiders in an effort to legitimate the results in courts and legislatures.
Sound familiar? CLT, like its sister CRT, is in its essence applied metaphysical materialism. Only instead of race, CLT is applied to law. Crits assert that while the law pretends to apply neutral legal principals, it does not. Indeed, “neutral legal principle,” like “objective moral principle,” is a meaningless phrase. In a universe devoid of ultimate meaning and objective morality, there cannot be such a thing as an objective legal principle. There is only power and those who have it and those who don’t, and the law is nothing but a power game used by oppressors to keep their victims down.
In practice CLT plays out in predictable ways. Instead of applying neutral legal principles to the facts of a case, Crits decide cases by reference to which party “should” win based on whether they are a member of a marginalized group. Crits have a problem though. American law requires judges to write opinions justifying their decisions by reference to pre-existing legal principles. And since “the defendant was __ [pick your oppressor: “white, male, wealthy, an employer, heterosexual, etc.”] and therefore had to lose” is not yet a recognized legal principle, Crits must pretend to apply real legal principles to reach their preordained result. Quite often this process results in opinions that are vast word salads filled with gobbledygook masquerading as legal reasoning. But Crits don’t care that their opinions are filled with non sequiturs and contradictions, because, as I noted in my previous post, under critical theory, rationality itself must be subordinated to the goal of achieving politically desirable outcomes.
As one might imagine, very often judges who apply CLT-type “results first, reasons later” methods bump up against other judges who apply the neutral legal principles developed over the course of centuries. Again, Crits don’t care; they just keep coming. The late Ninth Circuit Judge Stephen Reinhardt was one of the most famous judges who routinely ignored binding legal principles in arriving at lawless outcomes. The Supreme Court reversed him many times, and when this was pointed out to him, he famously replied, “they can’t catch ‘em all.” And of course, he was correct. The Supreme Court has a limited capacity to review cases, and it is easy for a lawless judge to overwhelm its ability to catch and reverse all his escapades into CLT land.
Whenever one of my clients has the misfortune of drawing a radical leftist judge (unsurprisingly, CLT finds its expression exclusively on the left), I must go through a by now all-too-familiar litany. I give the client the bad news and explain there is a near 100% certainty they will lose at the trial court level, and therefore they should be prepared to either see the case through to an appeal or drop it immediately. (I suppose that what the legal rule “the party whom the judge favors always wins” lacks in subtlety, it makes up for in near certain predictability.) Some clients bail out; others soldier on. I have never been wrong in my prediction. I lost all of those cases at the trial court level, but I often won on appeal.
CLT is not, strictly speaking, a theory of law at all. It is a repudiation of the very concept of “law” as most people understand it. If “law” is defined in a commonsense way as a set of pre-existing rules that are applied dispassionately and in a rigorously logical way to the facts of cases to arrive at politically neutral results, the fundamental animating principle of CLT is that law in that sense does not – indeed cannot – exist. And while Crit judges understand they must “play the game,” they never lose sight of the central gnostic insight of CLT – the law is just that, a game with arbitrary rules based on nothing but power relationships.
CLT was once considered outlandish by most legal scholars, but it is becoming increasingly mainstream. That should worry anyone who values the rule of law. Under CLT, the law does not exist. It follows that the “rule of law” is a convenient fiction oppressors use to victimize the weak. The most perfect expression of a legal system based on metaphysical materialism was found in the Soviet Union. Sure, there were judges and lawyers and trials and appeals and all of the other procedural trappings of a legal system. But everyone understood the game was rigged. The lower-case party who was favored by the upper-case Party always won.
This is what the Crits want for us. Indeed, like the Soviet Union, they are candid about the fact that their theory is based on Marxist principles. One needn’t be conservative or religious to understand the danger here. CLT fails at the most basic application of Kant’s categorical imperative (“act only in accordance with that maxim through which you can at the same time will that it become a universal law”). How would CLT play out if it were adopted as a universal law? This is not hard to predict. If the rule in all cases were “the party whom the judge favors always wins,” the people would very quickly come to understand that the law is a scam and respect for the law would plummet to zero. After all, what sense does it make to play by the rules of a game you know is fixed?
In the West we take respect for the rule of law for granted. We shouldn’t, because the blessing of living in a society governed by law is the exception in history, not the rule. Many cultures think of the law as an impediment to be gotten around, not as binding rules of conduct. I once litigated a contract case with a foreign party who acted this way. I will never forget the maxim that governed contracts in that person’s culture: “A contract is in no sense binding; it is merely a snapshot of the negotiations at a particular point in time.” An approach to law like that might be advantageous to a particular party in a particular case, but it is disastrous for a society as a whole. When no one can enter a contract with any firm expectation that it will be performed, transaction costs increase exponentially with a predictable drag on economic output and thus overall prosperity. It is no coincidence that the wealthiest nations tend to be those with the greatest commitment to the rule of law.
Yet Crits and their fellow travelers expend enormous time and effort chopping away at the very concept of the rule of law. And the superstructure is becoming increasingly wobbly, as the increasingly fractious fights over the confirmation of judges attests. The left wants Crit judges or at least judges who act like Crits. President Obama said he wanted to appoint judges who displayed empathy. This is exactly what judges should not do. If the law dictates that a party for whom the judge has great empathy must lose, then far from expressing that empathy, the judge must suppress it and rule for the other side. Justice Sotomayor famously observed that she hoped “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Blithering nonsense on a stick. A judge’s ethnic background, gender, and life experience have absolutely zero relevance to the application of politically neutral legal principles to the facts of a case in a logically rigorous manner. Yet the left went gaga over her statement.
As a nation we are becoming increasingly divided over fundamental things. One of the lines of demarcation is whether we will be ruled by law or ruled by, in Justice Scalia’s famous phrase, our “robed masters.” That a significant plurality of our fellow citizens affirmatively desires to be ruled by a committee of unelected, unaccountable, life-tenured lawyers just so long as the committee “gets it right,” is both heartbreakingly sad and exceedingly shortsighted. Sad, because we are on the verge of squandering the rule of law birthright bequeathed to us by the founders for a mess of progressive pottage. Shortsighted because if it ever becomes widely understood that judges are merely imposing their policy preferences on us under the guise of interpreting the Constitution, that will be the end of our Republic as we have known it.