The Neoliberalism and the Crisis of Critical Legal Studies/ O neoliberalismo e a crise dos Critical Legal Studies.
| Autor | de Almeida, Philippe Oliveira |
| Cargo | Texto en ingles - Ensayo |
1 Introduction
This study aims to offer a historical reconstitution of the rise and fall of North American Postmodern Legal Movements, specially the Critical Legal Studies. First, it will analyze the dawn of Critical Legal Studies within the context of postmodern Critical Legal Thinking (as opposed to the hegemonic view of Legal Education). In sequence, it explores possible reasons for crits (name given to participants of Critical Legal Studies movement) recrudescence. Although situated in the Anglo-Saxon Legal System (characterized mainly by customs and precedents as sources of Law), the crits movement provides important insights that can be used by legal scholars in the Romano-Germanic Legal System (characterized mainly by positive codifications and doctrine).
Nowadays, one lives undeniably in a moment of ideological crisis. Since the fall of the Berlin Wall, neoliberalism has sought to impose itself as the only feasible ethos in a globalized context, marked by both the decay of dictatorial political systems in the Second and Third Worlds and the affirmation of cultural diversity. The progressive intelligentsia strove to adjust itself to the demoliberal system and to the logic of the market (1), adopting paradigms of "weak reformism," (2) such as those promoted by social democracy. However, advancing conservatism (stimulated by the economic recession) is a sign that the paradigms of "savage capitalism" and "capitalism with a human face" spread over the last few years are not enough to afford the needs of the population. Therefore, the failure of the Soviet Union did not represent the "end of history," (3) the triumph of the United States, and the pax americana achievement. Nevertheless, the theoretical indigence of established political parties (right-winged and left-winged in the political spectrum) prevents the community from enjoying new models of social organization able of overcoming the aporias of the Democratic Rule of Law.
Legal education has its share of the blame in this process: presenting the normative order as an autopoietic, rational and necessary system, devoid of contradictions or gaps (and not as the result of contingent and reversible political decisions, commitments assumed in the struggle for power), law schools eventually convinced their students that this would be the best (or "least worst") of possible worlds, the inevitable consequence of a logical evolution. This process explains the success, in recent years, of doctrines such as the Economic Analysis of Law, which seeks to naturalize the most harmful characteristics of the bourgeois legal order and to represent man as "eternal rational utilities maximizer" (4). In such a scenario, it is necessary to rehabilitate critical legal thinking in order to foster the transformative and emancipatory dimension of Law. Considered by many as the most radical view of postmodern legal movements, Critical Legal Studies can bring fundamental contributions to the transformation of the current institutional arrangement.
2 Critical Theories of Law
According to Antonio Carlos Wolkmer, critical theories of Law (5) have begun to emerge in Europe and the Americas since the 1960s, in face of the inability of normativist doctrines to respond to elementary questions--notably of moral and ideological nature indispensable to comprehend the legal universe (6) in force during that period. Its rise was driven by the decolonization of Africa and Oceania, the demonstrations against the Vietnam War, the social customs revolution and the counterculture. Events, such as the rise of hippies communities, confronted the imposed Law from an imaginary Law perspective: before being lived, the legal system was conceived and, at that moment, it was imperative to call into question the theoretical framework of traditional doctrine (7). Kelsen's definition of the legal norm as a coercive command aimed at social pacification begins to be questioned (8). Gradually is restored the perception conforming to which in the collective life exists a diverse range of spontaneous forms of conflicts resolution, beyond positive Law (9). Thereby, some scholars become more aware to the historicial and political views of Law (moving away from the belief of a transcultural "legal rationality", capable of justifying jurisdictional decisions at any time or place).
Wolkmer refers to a transcontinental wave of legal criticism, "heterogeneous plurality of insurgent movements," which despite procedural differences, faces common gnosiological and political-ideological problems: in an effort to rescue the sociopolitical sense of the Law, all these currents will oppose legal positivism, jusnaturalism and sociological realism. The three main approaches to the legal phenomenon that have developed in the history of Western civilization share the common effort to "deideologize" the jurisdictional activity, to interpret it as a technical (the belief that the sentence would represent a syllogistic operation, etc.) or prudential activity (the practical reason, the Aristotelian phronesis applied to the lawsuit). Legal Dogmatism is based on "founding fictions of truth"--such as the belief according to which legal knowledge would be neutral and impartial, standing above the conflicts of interest that cross the social body. For the critical theories of Law, the desacralization of normative myths has revealed itself as a necessary stage in affirming the primacy of politics, that is, the revelation of legal discourse as a discourse of power, operationalized by specific groups in order to maintain their own ambitions.
Wolkmer identifies four major methodological axes of critical legal thinking: a) the Association Critique du Droit; b) the Alternative Use of Law; c) the Epistemological Approaches to Legal Pluralism; and d) Critical Legal Studies. Founded in the United States in the late 1970s, the Critical Legal Studies movement assembled phenomenology, social historicism, legal realism, frankfurtian Marxism, French structuralism and interdisciplinary analysis. In the face of Common Law, it assumed a demystifying stance: aimed to break with the classical rationality of Western legal culture. Its many supporters include Morton Horwitz, Duncan Kennedy, Mark Tushnet, Karl Klare, Robert Gordon, Peter Gabel, Mark Kelman, Richard Abel, Thomas Heller, David Trubek, Willian Simon and Mangabeira Unger. At this point, a brief picture of the genesis and structure of Critical Legal Studies may be of some value.
3 Post-Modern Legal Movements
Traditionally refractory to political and social tensions, American law schools were eventually affected (in degree, of course, inferior to that of other college spaces) by the vanguards of the 1960s and 1970s. The Socratic Method (10), proposed by Chistopher Columbus Langdell at the end of the nineteenth century, dominated the legal education scenario almost incontestably. Supported by a formalist perspective--which sought to stimulate "legal reasoning" in students, it set aside moral and political-ideological issues associated with the normative universe--the Socratic method seemed to be the most appropriate for a liberal cosmovision. It shared the belief that for every legal problem there would be a single adequate, technical and accessible solution to any rational subject. In its question-and-answer game, it would stimulate hierarchy, paternalism, and alienation (11). In the wake of counterculture and student insurgencies (stimulated by the Civil Rights Movement and the reaction against the Vietnam War), Ivy League students and young teachers will revolt against the established pedagogical model (12).
In this way, "postmodern legal movements" (in the definition of Gary Minda) are born, marked by eclecticism, diversity, fragmentation, competition and rivalry. Postmodernism is defined, first of all, by the refutation of the idea, disseminated in Classical Modernity, that all individuals, regardless of time and place, would be endowed with the same mental structure: the self, transparent to itself, (cogito, ergo sum), could thus serve as a starting point for the elaboration of an objective knowledge (undoubtable, clear and distinct) (13). Modern rationality, aspiring to impose the same exacting demands of mathematics and physics upon all the dimensions of human life, will seek in the epistemic subject (which permanently bends itself, fostered by certainty about its own mental representations) a solid foundation for the construction of knowledge. The rationalist and empiricist ramifications of modern philosophy, in spite of their uncountable divergences, are united in the attempt to recognize in the (solipsist) self the source of universal truth. The collapse of this perspective, stimulated by the awareness that different forms of subjectivation and rationality are possible (if we take into account the plurality of existing cultures), will guide Western intellectuality towards the postmodern. It would be decisive, by the way, the claim that the "great narratives" (the effort to interpret the trajectory of humanity within the framework of a univocal analytical grid) would have ended. The very question of quiddity--which means quid est, "what is," the essence--remains committed, in an age that embraces moderate and radical forms of epistemic and moral relativism. There is no single truth, as there is no pre-established set of basic values shared by all men.
In this scenario, Minda highlights five aspects that, appearing almost simultaneously, compete for space in American law schools: a) Law and Economics; b) Critical Legal Studies; c) Feminist Legal Theory; d) Law and Literature; and e) Critical Race Theory. Despite the countless theoretical and practical differences, these currents share similar pluralistic, contextual and non-essentialist conceptions of Law. The element of faith, typically modern in a self-transparent and self-legitimating juridical consciousness, the basis for...
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