So Why Hasn't Critical Theory Worked in Law?

By Kristopher A. Nelson in

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I wondered previously why critical theory approaches (like the much-criticized Critical Legal Studies) haven’t had much of an impact on U.S. law or legal analysis.

Maybe “litcrit” has relied too much on the fabled “Death of the Author” (even without realizing it) when trying to analyze case law. If your “author” keeps popping back up to correct your understanding, it’s much harder to wander off into a analyzing binary dichotomies of meaning (à la Lévi-Strauss) since that damn author/judge/court keeps trying to nail down their/your signifieds.

Or perhaps the law has yet to discover/be discovered by literary criticism, and simply got hung up on the oh-so-last-century positivist Frankfurt School approach of critical theory, whose final implications have simply been too radical to carry into the classroom for the conservative and establishmentarian legal world (nonetheless, it seems legal positivism remains perhaps the dominant approach when legal scholars are forced to wax philosophical).

Possibly the litcrit approach feels too Continental in flavor, more suited to a civil law view of the world. But I think leaving it there would be a shame: the common law looks to me to be a perfectly fascinating cultural narrative, full of symbolic meaning and dialectical relationships, perfectly suited to the complex tools developed by those perhaps more used to dining on Kierkegaard and Austin than Posner and Cardozo.

Those of us in law school often view the law as central to our society. Without the law, we would not be a nation. Quite true, I think, in its way. But is it not, well, interesting to also say that there is never any true center to a culture—that the entire construction is so interwoven and so self-referential that beginnings, endings, margins and centers, are places which are impossible to finally nail down. So then, to continue down this path, Jacques Derrida says (in “Structure, Sign, and Play in the Discourse of the Human Sciences“),

it was necessary to begin thinking that there was no center, that the center could not be thought in the form of a present-being, that the center had no natural site, that it was not a fixed locus, but a function, a sort of nonlocus in which an infinite number of sign-substitutions come into play. . . . This was the moment when . . . everything became discourse—provided we can agree on this word—that is to say, a system in which the central signified, the original or transcendental signified, is never absolutely present outside a system of differences. The absence of the transcendental signified extends the domain and the play of signification infinitely.

There. Isn’t that a fun way to start thinking, just for a bit?