THE SPIRIT OF SARTRE

The Spirit of Sartre

by Peter Gabel

Taken as a whole, the work of Jean Paul Sartre is that of a sensitive man with a good heart gradually coming to understand the distinctly social aspect of human reality—that while we appear to ourselves as alone and struggling to make sense of things from within our own isolation, we are actually always powerfully connected in our very being to each other and, through the networks of reciprocity that enable our material and spiritual survival, to everyone on the planet.

Sartre’s early work for which he is best remembered in mainstream liberal culture–the period in his thirties and forties which produced the novel Nausea, the philosophical work Being and Nothingness, and the plays The Flies and No Exit among many, many other writings—were all addressed to “the man alone” struggling to find authentic meaning in a world without God and in a world pervaded by false images and false conceptions of what matters in life.  To a young person like me gradually emerging into the radical awareness of the 1960’s, this work was thrilling.  I was brought up within the image-world of upper middle-class New York culture, taught by word and gesture to accept that artificial world of the bourgeoisie as if it conformed to some real “essence,” as if the right thing to do in life was to do well in school, dress nicely, acquire my share of wealth by entrepreneurship or inheritance, get married, fit well and admirably into this or that pre-given role, and have a solid obituary. But to use the famous phrase drawn from one of his lectures, Sartre showed that “existence precedes essence”—that all of these pre-constructed forms or identity, worth, and value were actually made up, that it was “bad faith” to allow our longing for superficial security to rationalize draping them over ourselves as if they would safely install us in some kind of “reality,” that we are free to accept or reject every form of received wisdom and, even more that we are personally responsible to make these choices and by these choices to give our own stamp to reality and take our own stand for all of humankind about the kind of world we ought to be creating.

As important as these insights were—as empowering as they were to me as a young man trying to find the strength to choose to align myself with the idealistic aspirations of the movements of the 60’s and take the risk of rejecting the class destiny to which I was bound by the erotic ties of family loyalty and devotion—Sartre himself came to realize that they were skewed and limited by the liberal individualism of his own upbringing; these early insights illuminated the world from within the pathos and solitude and psycho-spiritual struggles and relative material privilege of the floating or unanchored bourgeois intellectual. Thus his early philosophical understanding of “relations with Others” as elaborated in Being and Nothingness and in his early plays reflected the Fear of the Other that he came to see later as the unconscious foundation of “individualism” itself. To the early Sartre, the Other is mainly a threat whose gaze “steals my freedom” by pinning me in an image-for-the-Other that is colored with pride or shame and from which I must recover myself as a free being through a kind of ontological struggle, a struggle captured in the famous concluding line from No Exit: “Hell is Other People.”  In many ways, as radical as Sartre’s early ideas were in rejecting the conformity of inauthentic social life and its mores, roles, and hierarchies, they remained quite consistent with the aspect of liberal Western society that defined “man” as a free being inherently separate from and in conflict with the freedom of the Other—no doubt one reason that his “existentialism” is today taught in every liberal university while his later conversion to Marxism and social commitment and his brilliant reconciliation of the insights of existentialism with those of Marxism are almost nowhere to be studied and learned.

That later integration began to take place when Sartre served in the French army in World War II and through his conscription began to grasp that he was involuntarily bound to others by social forces much larger than the mainly two-person interactions that he was in those very years exploring in his philosophy, and his deepening awareness of the inherently social nature of each individual’s existence was accelerated by the encounter that every serious intellectual had with Marxism and its “really existing” embodiment in the Soviet Union following World War II.  But in spite of the sympathy that Sartre had for the Soviet Union’s egalitarian ideal in the face of McCarthyism and the increasingly reactionary cast of western capitalism in the early 1950’s, he knew that the Soviet Union was grossly distorted manifestation of Marxist ideals and that its distortions were in no small part the result of the limitations of the state of Marxist theory itself—indeed, of its very failure to give sufficient ontological priority to the subjective, qualitative experience of actual human relations that was the central concern of his own work.  Thus he felt it fell to him as a kind of moral responsibility to throw himself into showing how Marxism had become false to its own human aspirations by the hyper-objectivity of its own pseudo-scientific theory, how its transformation from a culturally complex and human historical materialism into a mechanistic and externalized “dialectical materialism” had led it to rationalize a new form of class society and social oppression as if it were a near-messianic embodiment of social progress.

Published in 1960, Sartre’s Critique of Dialectical Reason was an effort to show that while Marxism was correct in giving primacy to materialism—to the need for food, clothing, and shelter as being the key shaping force that had thus far connected all humans to each other and mediated their relationships to one another in a milieu of material scarcity and the struggle for survival—it had to incorporate into itself the relatively independent longing for human freedom and the transcendence of the inter-subjective and distinctively social facts of oppression, exploitation, and alienation of self from other to accurately understand and portray the truth of social life and offer a path to improving it.  In this later philosophical work and in his later plays like The Devil and the Good Lord and The Condemned of Altona as well as several volumes of essays and a three-volume biographical study of Flaubert, Sartre replaced his earlier emphasis on the “man alone” struggling for freedom and authenticity with the social individual bound to all living others through the necessities of economic production and also to prior generations through the medium of the world of “worked matter” that we have inherited from them and which directs and limits our possible forward motion.  In place of the floating and unanchored individual seeking to recover his or her authentic being from the inauthenticity of a fallen society living in bad faith and in flight from itself through a kind of ubiquitous personal and moral inadequacy, Sartre makes a powerful and original argument for a collective, intersubjective, distinctively social recovery of our authentic human capacities through the “praxis” of collective action to transcend class society and the alienating reciprocal conditioning through which we have enslaved ourselves and each other to dehumanizing socio-economic forces over which no one has control.

John Gerassi’s new book Talking with Sartre is a transcription of a fascinating series of interviews conducted with Sartre by Gerassi over the period from 1970-74, just as Sartre himself was coming to question whether his own later theory of existential Marxism was adequate to either offer a new path to human liberation for the Left or account for the extraordinary dynamics that had been sweeping the world in the form of “the 60’s” during the previous decade.  Gerassi, the son of longtime family friends of Sartre and Simone de Beauvoir and already an established independent left intellectual in his late 40’s at the time of these interviews, serves as a comradely inquisitor of Sartre. The great philosopher was approaching his 70th birthday and could not but see the shortcomings of the social movements of the 60’s beginning to manifest themselves in historically decisive ways. The interviews are in a certain sense a first-person evaluation of the state of the Left world-wide, as they reflect Sartre’s thoughts on his own visits to the Soviet Union, Mao’s China, and Castro’s Cuba, as well as his own participation in the radical groups in France—in particular the gauche proleterienne whose newspaper, La Cause du Peuple, Sartre had become the editor of.

To readers of Tikkun who today are working toward the creation of a spiritual-political progressive movement, the most important sections of the book deal with Sartre’s evaluation of his own ideas about how we are to overcome the social alienation that at the time of these interviews and still today seems to separate us from each other and disable us from banding together to create a more loving, egalitarian, solidaristic world. In the Critique of Dialectical Reason, Sartre had developed two important ideas that remain relevant to us to day as we try to build a new movement and understand the psycho-social dynamics that inhibit our efforts.   One is the idea of “seriality”—the idea that when we are thrown by socio-economic forces into relationships based on competition for survival and are conditioned by the weight of historical traditions and social ideologies to accept our situation as necessary and even desirable, we each become stuck in a kind of social quicksand in which other people seem to be constantly receding away from us like threads in an inside-out shirt and in which we ourselves each become “one of the others” to each receding other, collectively casting one another into a mutually distancing, one-and-one separation that we can’t seem to get out of. Whether we are languishing in the passive rituals of family life, or passing each others with blank gazes on the street, or carrying out the repetitive routines of work in offices or on assembly lines, when we are trapped in the one-and-one “series”, we exist as passive occupiers of social slots without a common active or creative purpose that unites us in any sort of original collective project:  We cannot seem to translate our longing for vitalizing social connection into any form of meaningful action that would allow us to recover our spontaneity and freedom. A key question for Sartre in the Critique had been what form of collective action was possible through which we could manage to lift ourselves out of this self-reproducing separation that actually was the central dynamic reproducing capitalism itself, an anti-human system that we all feel trapped in as if it were coming from “outside” us, like a non-human force over which we have no control.

Sartre’s answer to this question in the Critique had been that under certain favorable conditions combining the right material circumstances with the right spark of cultural (or countercultural) inspiration and also the irreducible power of human freedom exerting itself against its own self-reproducing constraints, human beings could break through reciprocal imprisonment of “the series” to form what he called “the fused group”—a movement toward mutual freedom and solidarity would overwhelm the external conditioning that renders us passive, atomized, anonymous (in the sense of lacking in authentic presence and lost in robotic roles and routines), and interchangeable. Drawing on the inspiration of revolutionary historical moments such as the seizures of the Bastille and the Winter Palace, the rebellion of the Kronstadt sailors, and the spontaneous sit-down strikes through which workers during the labor movement suddenly reclaimed their own sense of collective power and agency from the factory machines and their owner-operators that had turned them into passive objects, Sartre’s description of the emergence of the group coming into fusion provides a social- ontological and intersubjective foundation for the possibility of transformative social change that goes beyond the external categories of much of social theory—for example the external category of “class struggle” within the history of Marxist theory itself which could not account for how the revolutionary class would recover its agency as a living social process.  And Sartre’s new concept prefigured exactly what would take place five to ten years later during the upsurge of the 60’s, when human beings (like myself) who had been trapped in the passivity and distance of our socially separated and artificial lives, would emerge into authentic groups in which our essential Presence to each other could suddenly become visible, and through which we could generate an extraordinary, social energy that could “move” into a movement, ricocheting invisibly but decisively from Berkeley, to Mexico City, to Prague, to the general strike of Paris ’68.

The social paralysis of being trapped in and of being an unwitting agent of “the series”, and the always potential transformation of the series into the group-in-fusion through which we can overcome our alienation and recover our reciprocal presence to one another as Here and as One (or as “the common individual” in Sartre’s terms)—these are very important ideas that Sartre has contributed to establishing the link between the transformation of spirit and the egalitarian and ecological transformation of the material world.  But as Gerassi brings out in his interviews, there was something essential that was lacking in these later formulations that was becoming apparent in the world itself in the early 70’s—in the very decay and gradual dissolution of the movements of the 60’s that was beginning to take place at the time of the interviews and that is palpable in them.  In one key exchange, Sartre has been describing as a kind of illustrative mini-example of the group-in-fusion a bus ride in which a group of bus passengers who had previously been merely a disconnected series, a line of people waiting for the bus at the bus stop, had transformed themselves into a fused group by persuading the driver to go off his normal route and to drop each of them at their destinations, which in turn leads to the able-bodied passengers taking pleasure in assisting an old woman in a wheelchair to get off the bus and get into her home, and to an overall atmosphere of joy and free conversation erupting into the dead space where there had previously been merely a collection of anonymous strangers. Gerassi responds by saying, in effect, that’s that’s all well and good, but those passengers will inevitably go home and the next day they’ll be back in line, the weight of historical forces will again overwhelm and condition them, and their hot moment will go cold—just as the sans-culottes of the French revolution returned their power to the elites and lost their transformative energy, just as Paris Commune had failed to sustain itself, and just as the youth of the 60’s were seeing their groups dissolve into internal squabbles or get coopted by the political parties or become overwhelmed, as we would say in Tikkun, by the legacy of generations of Fear of the Other that is more powerful than the momentary unity made possible by the moment of fusion.  “To avoid defeat the group-in-fusion must remain in fusion, “says Gerassi: “But how?…If the group-in-fusion is always bound to fail, no matter how much of a residue it leaves around the edges for historians to contemplate, why risk starting it again?”

It is difficult to read these words and not feel that this is exactly the world-wide dilemma of the present moment, that because of the failures of prior social movements and the defeats or distortions of the fused groups that these movements were formed by and inspired, we are unable to risk starting it again and to surrender to the radical hope that this requires of us without a new step in theory to guide and express some new form of social practice.  Sartre’s own answer to Gerassi is that the process is not circular or hopelessly repetitive, that each such transformative experience is internalized as a historical memory that is passed on, however silently in the culture and moves the ball forward and furthers the liberatory development of humanity.  But even if there is some hope and validity to be found in that response, it seems clear to me that the Sartre of the early 1970’s could not yet have grasped that his own thinking was inherently limited by the secular nature of his own conditioning, by his failure to realize that the breakthrough permitted by the fused group can only truly be sustained if it is accompanied by a distinctly spiritual elevation of the heart that requires other another and deeper form of communal self-recovery than is conveyed by the idea of the revolution, the rebellion,  the instantaneous and sudden rupture of the artifice of the status quo.  What is needed is a theory and practice of human connection that has sufficient spiritual depth to gradually heal the Fear of the Other that has been installed in our hearts by the shocks of our generational and personal conditioning and to elevate the fused group into a beloved community. Sartre helped us by showing that we are always connected even when imagine we are most separated and that by turning toward each other in meaningful, life-giving social action we can become the source of each other’s completion.  When will we have gone far enough beyond his formulations to actually take the next decisive steps toward this redemptive end to “risk starting it again”?

–Peter Gabel

Peter Gabel is former President and Professor of Law at New College of California and is Associate Editor of Tikkun magazine. He is also Co-Director with Nanette Schorr of the Project for Integrating Spirituality, Law, and Politics.

This piece was first published in the September/October issue of Tikkun magazine. It is reprinted with the author’s permission.

CRITICAL LEGAL STUDIES

KeithHaring_TenCommandments

Detail from an installation, The Ten Commandments, at Deitch Projects in New York City by Keith Haring, 2009 (original panels 1985). Photo by 16 Miles of String.

CRITICAL LEGAL STUDIES AS A SPIRITUAL PRACTICE, PART ONE

by Peter Gabel


I.

I assume that I was asked to speak on a panel entitled “The Higher Law and Its Critics” because the organizers of this conference believed that as a Critical Legal Studies (CLS) founder and writer, I’d debunk the idea that there is any higher law. They likely felt that CLS stands for the idea that law and the interpretations of law are just an expression of social power, and that any claim that there exists a higher law which the existing legal world somehow exists in relation to would just be regarded by CLS as a form of ideology– mystifying, masking, and rationalizing existing power relations in society.

So let me start by saying that while appeals to a Higher Law certainly can be used to rationalize unjust power relations, I do not at all believe that they must do so; and even more, that I believe CLS was always fundamentally a spiritual enterprise that sought to liberate law and legal interpretation from its self-referential, circular, and ideological shackles. The CLS movement, after all, emerged in response to the moral intensity of the broader social movements of the 1960s, and was an attempt to join forces with the civil rights movement, the anti-war movement, the women’s and workers’ movements to challenge the status quo on behalf of a higher moral vision of what human relations could be like–a vision of a world in which people treated each other with true equality and respect and affection and kindness, and in which people saw each other as fully human and beautiful, rather than as cogs in a machine or as self-interested monads out for their own gain or as any of the other ways of characterizing human beings that seemed to be commonplace within the system as it was. In CLS, we were against the inhumanity of the system as it really was and as it really functioned, and we were against the existing legal system to the extent that it sought, consciously or unconsciously, to rationalize the inhumanity of the existing social world and call it something good, the embodiment of liberty and equality.

Thus there was always a spiritual impulse behind the work and the politics of CLS. But it is absolutely the case that CLS–or at least what came to be known as the dominant strain within CLS–refused to embrace this transcendent spiritual impulse, to stand behind it, or to speak about it. We really were motivated by love, but it was a love that dared not speak its name. And in my opinion, that is because our movement was infected with the same fear of the other that underlay the injustices that we criticized in the wider society. We were motivated by a powerful moral transcendent impulse that was an expression of what this conference is calling a Higher Law, but we would not say so, or to be honest, some of us would not say so. On this point, there was a division inside CLS, and in my opinion the wrong side carried the day–but today is another day.

The view that won out inside CLS is what became known as the indeterminacy critique–the idea that legal principles are so abstract and indefinite that they can be used to rationalize virtually any outcome. The literature of CLS has produced hundreds of articles demonstrating this point, [FN1] but an excellent example not cited so far as I know in existing CLS writing is the legal opinions produced during the rise of the Nazi movement in Germany, in which conventional liberal legal doctrines were reinterpreted by the judiciary to be made consistent with the ideology of the ascendant Nazi party. Thus the German equivalent of the doctrine of “good faith” in landlord-tenant contracts was interpreted not to prevent the otherwise illegal eviction of Jews because Jews were threats to the German people. [FN2] Using the indeterminacy critique, CLS writers showed in article after article that just as the eviction of Jews could be made consistent with contractual good faith, virtually any legal argument could be made consistent, via the open-ended nature of legal interpretation, with virtually any legal outcome. That being so, the actual explanation of legal outcomes must come from outside of legal reasoning itself–from the realm of politics or conviction or commitment to particular values on the part of the person or group doing the interpreting. And wonderful CLS writers like Duncan Kennedy, Mark Tushnet, Gary Peller, or Betty Mensch [FN3]–who contributed to this discussion at the Higher Law Symposium–showed that it was no answer to this critique to find some other supposed “anchor” for legal reasoning in the political or moral principles of the wider society that would shape the legal thought-process–for these political and moral principles could always be shown to be just as abstract and indefinite in their concrete meaning in any particular case and therefore just as indeterminate in their application.

There was much to be said for the indeterminacy critique as an analytical technique that could help a new generation of legal intellectuals and law students to challenge the authority of received justifications for the status quo, especially the authority of those who claimed that things had to be the way they were in late twentieth century capitalist society because the rule of law required it to be so. Many a law student who had come to law school with a longing to contribute to the creation of a more humane and just world had been subtly talked out of their idealism by sophisticated law professors who were better at manipulating concepts than they were and could use the power relations of the law school classroom to make their instinctive idealism appear naïve or childish or dumb. Armed with the indeterminacy critique and backed by the solidarity of other writers, teachers and students who shared their transformative aspirations, these same students could better stand up for themselves and demonstrate that their professors’ pretensions to superiority of reasoning amounted to no more than a preference for the existing system. Certainly a fifty-page opinion by Justice Scalia in his black robes is far less humbling to the radical spirit if one can show that all of its weighty argumentation and compilation of precedential authority amount to no more than a statement by the writer that “I like capitalism.”

But there was a major problem with the indeterminacy critique–namely, that it was a headless horseman, an analytical method without moral content that could not itself point the practitioner in any moral direction. Like all analytical critiques that rely upon logic to challenge claims to conceptual rationality, the indeterminacy critique is indifferent to the meaning of its object–it employs its scalpel at a distance from whatever may be morally compelling about a claim and satisfies itself with the assertion that a claim purporting to be logically valid is actually not so.

This creates three problems that, in my view, are decisive. First, the logical indeterminacy of abstract concepts, legal or otherwise, does not take account of the power of the moral environment in which such concepts exercise social force. To the extent that human beings are inherently moral beings animated by the longing for meaning and the desire to live in a better, more morally resonant world, the power of law and legal concepts will depend upon the social forces that give weight to a particular moral vision and related moral ideas at particular historical moments. If a particular worldview gains sway by virtue of its socially-anchored moral resonance, then the legal arguments that follow from that worldview will be heard and understood as logical to those who embrace the moral dimension of the worldview whether or not the arguments are logically compelled in the abstract. The Supreme Court’s decision in Bush v. Gore deciding the 2000 presidential election seemed to many scholars to validate the indeterminacy critique [FN4] because the Court’s reasoning to the result it wanted seemed to almost randomly change between its first decision (based on Article II’s reservation of power to the State legislatures to choose electors to the Electoral College), [FN5] and the second final decision terminating the Florida vote-count on the grounds of the Equal Protection Clause. [FN6] In addition, the final decision seemed to contradict the Court’s new-federalist deference in other opinions to a state’s right to manage its own elections within broad parameters that should have included the then-unfolding Florida recount. [FN7] But as I showed in What It Really Means to Say Law is Politics: Political History and Legal Argument in Bush v. Gore, [FN8] the significant fact is that the decision was found acceptable by Gore and his constituencies in spite of all the grumbling because of historical factors–including, the rise of Ronald Reagan, thirty years of conservative ascendancy in political and legal thought, and the collapse of the Soviet Union and parallel collapse of any worldwide public sphere in which morally compelling democratic social movements could challenge conventionally legitimated democratic institutions–that made the Supreme Court’s decision plausible enough to the moral self-understanding of the then-existing national constituency. [FN9]

Reduced to a sentence, this is to say that the indeterminacy critique, because of its very abstraction and disconnection from immanent meaning, cannot reach what is morally compelling about a legal argument and, therefore, cannot negate the argument to a really existing historical listener anchored in a web of real social relations.

The second problem with the amoral nature of the indeterminacy critique is that to the extent that human beings are moral beings decisively animated by the longing for meaning, purpose, and a better world, the indeterminacy critique cannot convey a moral vision of how we are to create such a world and therefore cannot gain any true adherents. In other words, the indeterminacy critique is basically a bummer, leaving the listener in a kind of secular liberal hell of scattered and disconnected individuals with no common passion or direction binding us together. Not only did this erasure of moral purpose disarm the CLS movement of its most compelling spiritual feature–namely its link to a powerful, transformative vision of a socially just world–it also seemed to dismiss as unimportant, and even trivial and misguided, the experience of moral dislocation, social isolation, and meaninglessness that is precisely the most spiritually painful aspect of modern liberal culture. While a few writers tried to justify CLS’s “nihilism” as a bracing affirmation of freedom, emphasizing that the critique was only a critique of the authority of reason and not of strongly held, freely affirmed values, [FN10] this defense simply cast the listener back into the spiritual void of his/her liberal solitude rather than purposefully pointing the listener forward toward the moral world that would finally connect us.

The third and final problem with the valorization of the indeterminacy critique and its preeminence within the CLS movement is that it could be and was used against the movement’s own spiritual commitments. Although conservatives were fond of caricaturing CLS writers as a group of radical cynics who didn’t believe in anything, [FN11] most were just the opposite–wonderful, loving, caring people committed to helping others and changing the world in accordance with a moral devotion to mutual affirmation and social equality. But the indeterminacy critique prohibited them from saying so in a universal, visionary language because any such discourse was itself indeterminate, and could be stolen away by the Other and used to rationalize domination. Backed up by Derrida’s in-fashion critique of “phallologocentrism” [FN12]–the historical tendency of abstract male-dominated ideologies to marginalize and dismiss the insights of minority cultures–some CLS writers would just make fun of those of us whose critique of law and legal culture was rooted in a substantive, moral vision of community and equality, as if we failed to grasp that the same critique we ourselves had embraced–the use of abstract universals to legitimize the injustices of liberal society–could be used against ourselves. Did we not see that the Devil can cite scripture for his/her purpose and that any universal ideal with which we purported to ground our critique of law could be used to justify the opposite of the meaning we sought to give it? How did we think that an ideal of spiritual community could be the “basis” of anything at all, since it could as easily entail a society of crystal-gazers or religious fundamentalists as it could the loving and egalitarian world to which we aspired?

It is worth pausing for a moment on this last point because it contains an epistemological confusion–or at least a difference of opinion and orienting attitude toward knowledge–that establishes the groundwork for my turn to a discussion of the existence of a Higher Law and a turn to what could give meaning to a rebirth of Critical Legal Studies as the spiritual practice that I am claiming it always was.

When the practitioner of the indeterminacy critique rejects the idea that an abstraction, like “spiritual community,” can be the “basis” of a critique of the status quo, citing the indeterminacy of the meaning of the abstraction, he or she is thinking within the analytical epistemology embedded in the indeterminacy critique itself–as if the relationship of the abstraction to the concrete manifestation, or the universal to the particular, is a relationship of logical entailment of a concept. Thus from this point of view, the critique of the liberal ideals of freedom and equality that are embedded in all of American law is that their very abstract and universal nature can be manipulated in a way that allows the concrete meaning of these ideals to legitimize the unfreedom and inequality of free market capitalism. The critique is that in liberal society, freedom equals free competition and equality means equality to compete in a universal marketplace that actually reproduces, in real life, the inequalities of class society and the unfreedom of servitude to hierarchy. From this truth (and other analogous ones that can be drawn from the concrete histories of pre-liberal societies, from socialism as actualized in socialist societies, and so on across and throughout history), the indeterminacy practitioner concludes that all abstract universals are similarly manipulable and subject to the same logical abuses in the service of legitimation. Because the indeterminacy critique begins and ends in an attitude of moral detachment from its object and analyzes the unfolding of the object through its merely possible logical expressions, the critique rejects a priori (in other words, as a matter of “belief” and not on the basis of its own critique!) that there could be moral “essence” to the object that gives moral direction to the critique of, say, the liberal conceptions of freedom and equality.

The paradox here is evident and refers back to my initial comments: for CLS is and was animated by a vision of overcoming the inhumanity and injustice of the world, and not by mere analytical cleverness or skill at deconstructing concepts. Caught in the epistemological straight-jacket of their own making, the proponents of the indeterminacy critique managed to make themselves unable to offer any “basis” for their own passionately held moral starting point, declaring that these motivating convictions were “irrational” and outside the realm of rational knowledge, like the relationship of chaos theory to normal science. [FN13] Far from being a bad thing, these CLSers believed that this irrationalism would protect the critical aspect of critical legal studies from absorption into falsifying rationalistic ideologies and maintain a liberated free-space for political action in support of their irrationalist convictions. The politics of this position was then that there should and could be a public, democratic debate among competing convictions–left, right, and center–about what kind of social world and what kind of legal culture we humans should be aspiring to create, a debate unburdened by any transcendent moral claims which appeal to a non-existent, or at least unknowable, transcendent moral authority whose very investiture with social power would reproduce our subordination to some Other that would not be ourselves.

Unfortunately, the validity of this view rested on a “belief” about the very nature of social reality that is, with all due respect to my long-time comrades who hold it, wrong. For the world, as it really is, is suffused with moral longing that pulls upon the conscience of humanity to elevate ourselves from the limitations of what is, toward the realization of what ought to be, and the evocation of precisely that longing has been the decisive force behind every social movement that has advanced the development of humanity toward a loving and humane common existence since the beginning of time. It is equally true that the appeal to this moral longing has been the basis for terrible injustice and suffering. But this struggle over the way forward is a moral struggle anchored in the capacity of every one of us to manifest ourselves to each other in a way that points us in the right direction. A successful critical approach to the present–or in the case of law, to a successful critical legal studies–requires the illumination of the injustice of what is, that is anchored in a transcendent intuition of the just world that ought to be.

–Peter Gabel

Peter Gabel is former President and Professor of Law at New College of California and is Associate Editor of Tikkun magazine. He is also Co-Director with Nanette Schorr of the Project for Integrating Spirituality, Law, and Politics.

Peter Gabel thanks Duncan Kennedy, Michael Lerner, Michael McAvoy, Gary Peller, and Matthew Wilkes for helpful comments and criticisms.

This piece was originally published in a special issue of the Pepperdine Law Review, Vol. 36 (2009).

Footnotes:

1. See, e.g., Duncan Kennedy, A Critique of Adjudication (fin de siecle) 84 n.16, 348 n.5 (Harvard Univ. Press 1997). For a sophisticated recent statement of the indeterminacy position emphasizing that legal materials are always mediated by the strategic work of interpretation and therefore have no determinate existence “in themselves,” see Duncan Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation, in Legal Reasoning: Collected Essays 153 (Davies Group 2008).

2. See Die Justiz im Dritten Reich, May 30, 2006, http:// www.123recht.net/printarticle.asp?a=16764 (citing a 1936 Berlin civil court case justifying eviction on grounds that being Jewish “undermined the strength of the tenant-house community”).

3. Elizabeth Mensch, Cain’s Law, 36 Pepp. L. Rev. 541 (2009).

4. See Sanford Levinson, Bush v. Gore and The French Revolution: A Tentative List of Some Early Lessons, 65 Law & Contemp. Probs. 7 (2002).

5. Bush v. Palm Beach County Canvassing Bd. (Bush v. Gore I), 531 U.S. 70, 71 (2000).

6. Bush v. Gore (Bush v. Gore II), 531 U.S. 98, 98 (2000).

7. See, e.g., id. at 135-44 (Ginsberg, J., dissenting).

8. 67 Brook. L. Rev. 1141 (2002).

9. Id.

10. See generally Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984).

11. See Richard A. Posner, The Problems of Jurisprudence 83 (2007); Paul D. Carrington, Of Law and the River, 34 J. Legal Educ. 222 (1984); Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stan. L. Rev. 413, 433-34 (1984).

12. See Jacques Derrida, Dissemination 75-84 (Barbara Johnson trans., University of Chicago Press 1983).

13. See, e.g., Clare Dalton, The Politics of Law, 6 Harv. Women’s L.J. 229, 234-48 (1983) (book review).