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 THREE

by Peter Gabel

III.

In my view, CLS “stopped,” or perhaps “paused,” about fifteen years ago because it lost track of this spiritual and moral foundation. One reason for this was the dissipation of the social movements of the ‘60s themselves, which undermined the intuitive social ground of confirmatory recognition which made this spiritual dimension visible to CLS teachers and writers and audible to our listeners and readers. A second reason influencing the dissipation of the movements themselves was the collapse of socialism and the Marxism that had supported it, which for 150 years provided the principal metaphor for the morally transcendent communal horizon against which the shortcomings of the present society had been measured. A third factor intimately bound up with the other two was the rise of the New Right as a conservative moral response to the social challenge and disruption that the movements of the ‘60s had introduced into public space, with the Reagan Revolution championing deregulation, an attack on entitlement programs, and an originalist, new-federalist constitutionalism that sought to delegitimate the public sphere itself as an arena of collective moral action. Faced with this loss of footing at both the experiential and ideological levels (or at the levels of both intuitive understanding and reflective interpretation), we lost confidence in the forward trajectory that had united us. Deprived of an anchor-point in the future that could unite our project in the present, we tumbled back into the social separation of the wider system–our professional “roles” congealed around us and our social identities were reabsorbed by the hierarchical institutions we had hoped to transform.

The ascendancy of the indeterminacy critique and its separation from the spiritual and moral foundation within which it was originally located was an expression of this social and moral hemorrhage, as CLS became increasingly identified with a specialized analytical technique of doctrinal deconstruction that could be assimilated by the academy as merely a school of legal thought. And robbed of its morally compelling message, CLS has proved no match for the Law and Economics movement as its principal competitor to be the successor to the normative paradigms of the New Deal (Legal Realism and the Legal Process School); for the Law and Economics movement is rooted in the moral ideal of the market as the social realization of individual liberty and popular democracy. Indeed, at the ontological/epistemological level, it is difficult to distinguish the CLS of the indeterminacy critique from the Law and Economics movement because they both presuppose that free of illegitimate constraints, the world is a free competition (or a “democracy of interpretations”) among the free choices (or ideas/convictions) of individual actors, with the CLS critique of the authority of abstraction and any socially binding universal vision being the analogue to the Law and Economics critique of Big Government. Neither point of view apprehends the world as an intersubjective life-world with an intelligible social essence that can be the basis for moral insight and transformative social action.

But it’s not too late! For the way out for CLS is to return to its original instincts as a righteous social transformation movement and this time recognize that there is a spiritual basis for our understanding of the social individual that is rooted not in the materialism of Marxism or state socialism, but in the enlivening mutual recognition, or Love, that was always at the heart of the movement out of which CLS was born. Human beings are bound together not primarily by their relationship to the means of production or any other shaping practical medium, but by the desire for confirmation within a loving community that will have overcome the legacy of alienation and social separation. The work of CLS is both to illuminate how that legacy has created a legal culture that has legitimized this alienation by making it seem natural and just, and by beginning to construct a new legal culture that would strengthen and help to realize the loving bond between us: the bond that actually unites us as social beings.

This calls not for a rejection of past CLS work, but for a reclaiming of the spiritual dimension of that work. And this in turn requires a reunderstanding of the indeterminacy critique as being merely an analytical moment within the synthesis of a moral critique, as a kind of analytical insight that indicates that the world is open-textured but not going nowhere, and that legal reasoning’s claims that would fix the world in idealized, reified abstractions legitimizing injustice and alienation are actually a passivizing defense against the freedom and creative challenge of social vulnerability and uncharted possibility.

But this also requires a new agenda for our movement that cooperates with the world-wide spiritual-political initiatives that have sprung up since the post-’60s era from which CLS first emerged, and that would be tremendously supportive of our efforts. These spiritual-political initiatives include the religious renewal movements that are linking the spiritual ideal of the beloved community to social action and social change; spiritually informed secular movements like the Network of Spiritual Progressives that are trying to invent new forms of spiritual activism while rethinking foreign and domestic social policy reforms to emphasize spiritual transformation rather than merely liberal redistribution of resources and rights; [FN31] and the efforts of the environmental and ecology movements to link the redemption of the planet with social healing and sustainable, cooperative economies.

All of these efforts require a new legal culture that links justice with explicitly spiritual outcomes–outcomes that foster empathy, compassion, and social connection rather than the vindication of liberal rights in a legal order founded upon the fear-based separation of self and other. One lesson that CLS scholarship itself has taught is that it is impossible for a social transformation movement to be successful without an ability to express its own ideals as also ideals of justice that can achieve legitimate political expression through legal culture. Without that, as Karl Klare, Alan Freeman, and many others have shown, [FN32] the movement’s radical ideals will be recast and stolen away by the liberal interpretations those movements will suffer through the prism of legal assumptions that actually contradict them. Thus while the movement must create the “parallel universe” that can affirm the ontological/epistemological validity of the possibility of a society based on love and mutual recognition, the movement also requires a legal expression of itself that declares this same realization of love and mutual recognition to be indispensable to just outcomes of social conflicts.

Such a parallel justice system has already begun to sprout up across the legal landscape, alongside the antagonism of self and other, presupposed and reinforced by the mainstream’s adversary system. Among its manifestations are the truly remarkable restorative justice movement, which understands crime and social violence as expressive of a breakdown in community and aspires to apology and forgiveness through direct encounters between victims and offenders as a means of restoration of the communal fabric; [FN33] the transformative and understanding-based mediation movements that make compassion a central objective to the resolution of civil conflicts; [FN34] the new forms of spiritually-informed law practice that are redefining the lawyer-client relationship as a non-technical, holistic relationship in which lawyers bring a substantive moral and healing vision to bear on the client’s perception of his or her “interests,” and the relation of those interests to the well-being of the larger community; [FN35] and the transformation of legal education away from a focus on the mere manipulation of existing rules and doctrine, toward a more humane and spiritually integrated conception of law and justice.

What these new efforts need from a revitalized critical legal studies movement is a scholarship and pedagogy that provides in every field a critique of existing law and legal culture that reveals the limitations of the liberal world-view out of which the existing order was constructed in the centuries since the Enlightenment, and that points toward the socially connected community that ought to be its successor. It is this intellectual piece of the puzzle that is lacking from all of the recent efforts to transform legal practice in the ways I have just described; all of these efforts without exception, as far as I know, challenge the individualized, antagonistic, and despiritualized character of the adversary system without challenging the substantive content of existing law or the analytical thought process of legal reasoning. Both of these elements of legal culture–the critique of the substance of legal rules and doctrine, and the critique of detached, analytical rule-application through abstract, logical technique resting on a normative foundation–require a cadre of intellectuals to help disassemble what is and point to what ought to be, as a “moment” in the transformation from the individualistic, liberal world we inhabit to a post-liberal socially connected, loving, and compassionate world to which we aspire.

So, for example, a CLS course in Contracts should subordinate its use of the indeterminacy critique to a meaning-centered critique emphasizing how the rules presupposing the legitimacy and desirability of individualistic, self-interested bargains (adjusted by a touch of concern for “the reliance interest”) among an infinite number of socially disconnected strangers bound by no common moral purpose or spiritually bonded social community outside their respective blood relatives are rapidly destroying the planet, in part, by making use of liberal abstractions like freedom of choice that make it appear that this lonely destiny is what people really want. Or a course in Torts should make it clear to students that there is more to the obligations born of our essential connection to each other as social beings than the duty to not pull chairs out from under each other as we are about to sit down to dinner, or not to smash into each others’ cars, or injure each other with exploding Coke bottles–that the bond of recognition itself, and what Emmanuel Levinas calls the ethical demand of the face of the Other, [FN36] means we have a duty to “rescue” each other, that we must take care of each other, including the poor, the homeless, and those who lack health care.

CLS scholars and teachers should extend–and in many instances already have extended–this kind of critical analysis to every area of law, including developing a critical reflection on the Constitution as a liberal and individualistic document that was a great advance in its time but now must be transformed to embrace a newly evolving vision of spiritual community that was not even conceived of as a universal necessity in the late eighteenth century when it was drafted. Concomitant with the transformation of doctrine must come a transformation of remedy, beyond money damages passed between socially separated litigants conceived as interested only in material outcomes, and beyond a due process model of civil and criminal procedure that links justice to merely the vindication of rights through the dutiful monitoring of a fact-based public hearing that leaves the parties as disconnected or more disconnected than when their legal process began. And finally, supporting such a re-visioning of doctrine, remedy, and process must be a rethinking of legal reasoning itself that goes beyond the normative circularity of the application of indeterminate rules presupposing the legitimacy of the secular liberal order toward a morally grounded reflection anchored in the common effort to realize the values of love, compassion, and mutual concern and well-being that are being carried forward by the movement itself as it tries to link the transformative element of its own social being with a new legal knowledge that would be expressive of it.

If CLS would embrace the moral and spiritual agenda that I’m proposing here, it would instantly revitalize itself. Everywhere today there are law students and young legal scholars trying to figure out how to devote their lives and work to addressing the problems of global warming and the destruction of the environment, to overcoming the social violence and irrationality of religious fundamentalism and pathological, secular nationalism, and to challenging the human indifference of corporate globalization and its blind and reeling world markets. But Marxist materialism can no longer speak to these new generations of potential activists who have become aware that these problems require a spiritually grounded solution, and after a thirty-year assault by the New Right, no one believes any longer in the model of regulatory government as morally capable of containing and altering a civil society founded upon Fear of the Other and private self-interest. A new spiritual activism actually connecting Self and Other is clearly what is needed, and it is already coming into being in hundreds of hopeful incarnations. If CLS were to rediscover itself as the legal-intellectual expression of that world-wide effort, it could once again challenge legal education and legal scholarship to become vehicles of the creation of a better world, connecting the worthwhile body of work already produced by its older generations with new, more spiritually confident work yet to be written by the young.

What’s the problem, guys and gals?

–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).

Further Reading:

Critical Legal Studies as a Spiritual Practice, Part One by Peter Gabel, 10/28/09

Critical Legal Studies as a Spiritual Practice, Part Two by Peter Gabel, 10/30/09

Footnotes:

31. See generally The Network of Spiritual Progressives, http:// www.spiritualprogressives.org/ (last visited March 3, 2009).

32. See generally Klare, supra note 22; Freeman, supra note 23.

33. See David Lerman, Restoring Justice, Tikkun, Sept./Oct. 1999, at 13.

34. See, e.g., Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict 14 (rev. ed. 2005) (emphasizing the transformative power of “recognition”); Gary Friedman, Challenging Conflict: Mediation Through Understanding (2009) (discussing “understanding-based” mediation movements).

35. See, e.g., Douglas Ammar & Tosha Downey, Transformative Criminal Defense Practice: Truth, Love, and Individual Rights–The Innovative Approach of the Georgia Justice Project, 31 Fordham Urb. L.J. 49 (2003).

36. Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority (Alphonso Lingis trans., Duquesne Univ. Press 1969).