¹ The discussion of “rationalism” and “irrationalism” never quite surfaced in those terms in the CLS literature. For a brief discussion, see Dalton, Book Review, 6 Harv. Wm's L. J. 229, 231-39 (1983). This suggests that a preliminary caution about the discussion that follows is important: Any map of “positions” within CLS distorts what people actually say and think, by imposing an order to assist others who seek a general orientation to the discussions. Nonetheless, providing that sort of orientation seems useful, even if doing so does make discussions within CLS appear more orderly than they actually are.Google Scholar

² An alternative formulation of the subject of these discussions would be that they concerned the relative usefulness of structural and subjectivist orientations in understanding social life and providing guidance for political action.Google Scholar

³ I regard this examination as my effort, as a participant in the first generation of CLS arguments, to come to grips with developments, refinements, deepening, and elaborations that have been provided by a second generation of CLS authors. This gives my discussion a certain distanced quality, with which I am not entirely comfortable. It should be noted as well that many people associated with CLS find that their work converges with, and is influenced by, some aspects of contemporary feminist theory. Because I am less familiar with discussions among feminist theorists, I have not attempted to do more than suggest that the map offered here may correspond to a map of feminist discussions.Google Scholar

⁴ See “Round and Round the Bramble Bush”: From Legal Realism to Critical Legal Scholarship, 95 Harvard Law Review 1669 (1982). For a contrary view of the relation between CLS and Legal Realism, see Critical Legal Studies as an Anti-Positivist Phenomenon, 72 Va. L. Rev. 983 (1986).Google Scholar

⁵ Johnson, Examples are, Do You Sincerely Want To Be Radical?, 36 Stan. L. Rev. 247, center-right (1984); see also Owen Fiss, The Death of the Law?, 72 Corn. L. Rev. 1 (1986).Google Scholar

⁶ See Fiss, supra, note 5, at 15 (“feminism … (must) recognize the claim to sexual equality as an expression of the ideals and values we hold in common”).Google Scholar

⁷ For an example, see Donald Brosnan, Serious But Not Critical, 60 Southern California law Review 259 (1986).Google Scholar

⁸ Even in this relatively superficial sense, these criticisms underestimate the degree of diversity within CLS.Google Scholar

⁹ In some CLS writings, this contribution is phrased as an insistence on “pragmatism” as the proper philosophical grounding for CLS. A cogent, and to me convincing, criticism of this insistence is John Stick, Can Nihilism Be Pragmatic?, 100 Harvard Law Review. 332 (1986). I should emphasize that the criticism is cogent only to the extent that pragmatism is offered as a foundational philosophical theory; Stick clearly knows that pragmatism is fundamentally non-foundational, and when used appropriately does link CLS to one philosophical tradition.Google Scholar

¹⁰ Here I address only the criticism from “the left”, for liberals, centrists, and rightists are not interested in providing criteria for successful leftist political action. The entire range of criticisms is, however, addressed in the map that concludes this discussion.Google Scholar

¹¹ For those with a historical bent, the difficulty might be suggested by invoking the political career of Benito Mussolini.Google Scholar

¹² I should note that I am sympathetic to all four of the tendencies described in the text, but also that I present them in order of what seems to me their increasing plausibility.Google Scholar

¹³ Singer, Joseph William, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L. J. 1, 54 (1984).Google Scholar

¹⁴ Gabel, Peter & Kennedy, Duncan, Roll Over, Beethoven, 36 Stan. L. Rev. 1, 1 (1984).Google Scholar

¹⁵ Mangabeira, Roberto, Unger, Passion: An Essay on Personality, 275-300 (1984).Google Scholar

¹⁶ Herbert Marcuse, Eros and Civilization: a Philosophical Inquiry Into Freud, 217-51 (1955).Google Scholar

¹⁷ Cornell, Drucilla, Toward a Modern/Post-Modern Reconstruction of Ethics, 133 U. Pa. L. Rev. 291, 298, 365-72 (1985).Google Scholar

¹⁸ Peller, Gary, The Metaphysics of American Law, 73 Cal. L. Rev. 1151, 1187-91 (1985).Google Scholar

¹⁹ Olsen, Frances, From False Paternalism to False Equality: Judicial Assaults on Feminist Community, Illinois 18691895, 84 Mich. L. Rev. 1518, 1541 (1986). This position seems to be common ground in feminist discussions of such issues as the regulation of pornography and, as Olsen indicates, maternity/paternity/parental leave for workers.Google Scholar

²⁰ Kennedy, Duncan, Legal Education and the Reproduction of Hierarchy (1982); Simon, William H., Legality, Bureaucracy, and Class in the Welfare System, 92 Yale L. J. 1198, 1267-68 (1983).Google Scholar

²¹ It is possible, but not necessary, to take this sort of contextualized judgment as the model offered by this tendency for all legal decision-making. It is not necessary to do so because the emphasis within this tendency on the importance of context means that it is difficult to project a model of appropriate action very far beyond the immediate horizon.Google Scholar

²² I understand the invocation of ideas like the “dangerous supplement” to perform this revaluation. See Clare Dalton, An Essay on the Deconstruction, of Contract Doctrine, 94 Yale L. J. 997, 1007 (1985); Frug, Gerald, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1288 (1984).Google Scholar

²³ See Trubek, Michael, Where the Action is: Critical Legal Studies and Empiricism, 36 Stanford Law Review 575 (1984); Whitford, William, Lowered Horizons: Implementation Research in a Post-CLS World, Wisconsin Law Review 755 (1986).Google Scholar

²⁴ See Gabel, & Kennedy, , supra, note 14, at 4.Google Scholar

²⁵ Another version of this point is that it would seem necessary to provide some explanation of why the experiences, even if shared in some sense, should be characterized as (joint, intersubjective) experiences of oppression.Google Scholar

²⁶ Conversations have convinced me that people often misread such works as Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976), and Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Equal Bargaining Power, 41 Md. L. Rev. 563 (1982), to provide policy-oriented suggestions that the law would be straightened out permanently if we made altruism and paternalism the primary values promoted by law. Such conversations indicate that the revaluation suggested by works in the local pragmatic tendency can be taken as offering an end to politics in the senses described in the text.Google Scholar

The statement in the text about the “fundamental” nature of contradiction might seem to contradict Kennedy's “renunciation” of “the fundamental contradiction”, in Gabel & Kennedy, supra, note 14, at 15. Although the renunciation can be read in other ways, I take it to be a locally pragmatic judgment that the term had become reified and was no longer functioning to sustain or generate an oppositional politics, rather than a statement about ontology or philosophical anthropology.Google Scholar

²⁷ See, e.g., Kennedy, David, The Turn to Interpretation, 58 So. Cal. L. Rev. 251 (1985).Google Scholar

²⁸ Unger, Robert Mangabeira, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 600, 611-15 (1983).Google Scholar

²⁹ In this sense, the significance of Unger, supra, note 28, lies as much (or almost as much) in its title as in any of its particular arguments.Google Scholar

³⁰ Plainly, sustaining this sort of alliance may call for some rather difficult political action within the CLS movement, but there is no reason to think that an alliance among the tendencies cannot be sustained with some effort.Google Scholar