Title

Deep Cuts: Four Critiques of Legal Ideology

Document Type

Article

Publication

Yale Journal of Law & the Humanities

Year

2021

Abstract

This Article begins an effort to rekindle the intellectual tradition of critical legal theory. The context for the project is significant. On the one hand is the grip of a social crisis, the contours of which continue to confound the commentariat. Racism, xenophobia, gendered violence, migration and nation, climate change, health pandemics, political corruption. The parade is as intimidating as it is spectacular. On the other hand, the very tools of criticism we depend upon in identifying these characters in the parade, much less the spectacle of the parade itself, are themselves in crisis. There is, in a word, a crisis for critique itself. The working assumption of this Article is that these crises—crises in society and the crises of critique—are not unrelated. It is in this context that we believe in the need to revitalize the tools of critical legal studies, an intellectual songbook from the 1970s that deserves a 21st century reboot.

The argument is as follows. Among the crises of our time is the sense that law is either too marginal or too political to be of any use in the work for social justice—social justice rendered in any one of the crises mentioned above. We all know only too well, according to this sensibility, how to criticize judges, lawyers, and the academic elite. And these criticisms, of which everyone so easily partakes, all seem to bottom out in the same thing: law is either corrupt or ineffective. This Article suggests that this defeatist sensibility, and its affiliation with a popularized notion of legal criticism, is itself a legal ideology. Strangely enough, this ideology of defeat is the result of decades worth of ideology-critique that have now calcified into a block on our ability to see beyond them. That is, over the course of the twentieth century there emerged four traditions for criticizing the ideology of law, and today, these four traditions exhaust our collective abilities to formulate novel critical approaches. This Article names and evaluates these four critiques of legal ideology, but not with an eye toward rehabilitation. Rather, it is our hope that in making explicit our traditions of ideology-critique in law, we put ourselves in a better position for the next step: to imagine what the critique of legal ideology might yet become.

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