November 16--Critical Studies II
Professor William R. Long
The Flavor of the Stew
I don't suppose that many of you will spend too many hours reading in critical legal studies, but these scholars bequeathed important principles to the study of law. I will only mention two here--law as text and law as power.
Law as Text
Deconstruction entered into American life from France in the late 1970s primarily as a literary critical movement. When it entered, it met the new Anglo development called "reader response criticism," the primary contribution of which was to stress that a text is not an objective meaning-bearing phenomenon but that meaning is "created" by the reader as s/he encounters the text. Texts don't have determinate meanings, but they acquire meaning based on the context of the reader. Deconstruction, somewhat similarly, wanted to talk about the plethora of meanings inherent in a text. Rather than emptying texts of all meaning, as some have erroneously characterized deconstruction (i.e., that it is akin to a nihilistic movement), deconstruction was overwhelmed with the literary possibilties inherent in texts.
Each sentence reflected authorial choice; almost each sentence was suffused with metaphor or other literary/rhetorical devices to massage and create meaning; and, to rush ahead to the second point, each idea assumed or tried to promote power relations.
Text as Power/Law as Power
I think I can best illustrate the point of langauge as a power-bearing instrument through brief mention of a book I recently read: Lost Words: Narratives of Language and the Brain, 1825-1926, by medical historian L.S. Jacyna. His interest was to understand how medical science came to its understanding of the cause of aphasia (inability to speak even though you know what you want to say and try to speak) by localizing it in the third frontal convolution of the brain. In order to understand this as a historical process, he had to go back and investigate old autopsy reports and case histories, the "stuff" of medical knowledge. By using deconstructionist techniques, he posited that earlier "narratives" of the function of language (such as its being a divine gift) were gradually "overpowered" by other explanatory paradigms (localizing the power in the brain) by a combination of scientific experiment and the resulting prosaic language of medical narrative. The modern understanding of aphasia, therefore, emerged out of the triumph of language over language. Certain formerly "privileged" accounts were now relegated to secondary status.
The deconstructionist therefore sees language usage as an assertion of power. This was a particularly attractive point for legal philosophers, who then began to delve into legal opinions to discover modes of narrativity or expressions of metaphor that served to "privilege" one approach over another or "silence" someone at the expense of someone else. By arguing that each privileged category also implies its opposite, the deconstructionist is able to get behind the simple language of the text and to expose the struggles of power in the simplest appellate opinion.
An example might help at this point. We have learned in basic contract law that contracts are entered into by autonomous parties who freely agree to be bound by the express, and sometimes implied, language of an (preferably written) agreement. A deconstructionist reading of a contract would probably try to expose the real nature of the power relationships-- that in fact contracting parties are not equal, coercion is a real category even if it is not done at the point of a gun and people do not share or even have access to equal amounts of information in contract formation. If you don't believe me, think about how "equal" you will be to your first employer when they offer you an employment contract.
Law and Text, Law and Power
The implications of this approach are pretty vast for law. You as a "deconstructionist" then become hyper aware of the way that language is used to express and reinforce relationships of dominance/submission. You become aware of how language is used to bolster flagging fortunes of companies or people or to obfuscate when clarity is really needed. In addition, you are able to sort through some of the verbiage by relentlessly asking, "What is really going on here?" Now, you may say, "Isn't that what lawyers have been doing all along?" And, of course, the answer is "Yes." But, now you do so with a more sophisticated understanding of the way language functions to uphold the power structures in our society. It doesn't mean, necessarily, that you are trying to tear them down. It does mean, however, that by being a "critical studies" lawyer you will be able to show the rather flimsy linguistic foundation on which many things rest. You may want to shore up that foundation with new language or you may want to try to undermine the institution.
Now I think you can understand how the first generation of critical legal scholars provoked huge reactions. The "legal establishment," as represented by the Dean at Duke Law School (see previous essay) was incensed at these "punk professors" who seemingly wanted to use language to try to expose how fragile were law's foundations. They didn't believe in anything, was the outraged response. But, then again, they hit a nerve. There must be something there.....
I need one more essay to describe a few "isms."
Copyright © 2004-2007 William R. Long