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Law and Hierarchy
Peter Gabel
Printed by permission from Legal Education and the Reproduction
of Hierarchy: A Polemic Against the System: A Critical
Edition, by Duncan Kennedy, which will be published by NYU
Press in July, 2004. Peter Gabel is the Associate Editor of TIKKUN.
However much we at TIKKUN insist
that deep down we all long for a
loving and caring world and are optimistic
advocates for a new spiritual approach to
politics that would speak to this need, we
also recognize that these are often very
difficult times. We all ask ourselves at one
time or another why people don't revolt
against the pain and isolation of the existing
system, why so many seem to go along
with business as usual even when it so
manifestly appears to be against their own
deepest spiritual needs.
In the piece that follows, TIKKUN
Associate Editor Peter Gabel helps us
understand the answer to that question in
the form of a commentary he has written
for the forthcoming republication of Legal
Education and the Reproduction of Hierarchy,
a book by Harvard Law Professor
Duncan Kennedy originally self-published
twenty years ago after the fashion of Mao's
"little red book" during the rise of the
Critical Legal Studies (CLS) movement in legal education.
Born of the social movements of the 1960s, Critical Legal
Studies launched a powerful critique of law and legal education
as institutions that actually legitimized the injustices of
American society. However, like so many of the radical
attempts of that time, it was ultimately largely defeated by the
conservative forces whose ideas dominate law and society as a
whole today.
Gabel and Kennedy were both founders of the CLS movement
and have continued their efforts to transform the legal
system in a more humane and egalitarian direction. But while
Kennedy's work has emphasized what he sees as the emancipatory
possibilities of postmodernism and deconstruction,
Gabel has sought to create a new spiritual-political approach to
law, an approach that places much greater emphasis on law as
a potential vehicle for fostering empathy and compassion as
part of a larger effort to create a new universalist vision of a
loving and caring world.
In the essay that follows, you will learn much about the
relationship and tension between these two approaches to
transforming law, and to transforming human relations generally.
And you will gain insight into why we can become
addicted to the pain of deference to the way things are, even
though our deepest longings are to free ourselves of this very
pain and discover the possibility of creating a world based on
love, solidarity, and mutual recognition.
When Duncan Kennedy published Legal Education
and the Reproduction of Hierarchy in
1983, Ronald Reagan had been in office for
three years, and the dominant culture's ultimately
(largely) successful war against the 1960s was in full
swing. But at that time our fate was not sealed, and in the
world of legal education, the Critical Legal Studies movement
was "hot"—the subject of serious legal symposia in the
Stanford and Texas Law reviews, a cause for extensive
hand-wringing and outrage by icons of the legal establishment,
the subject of major (largely denunciatory) articles in
the New Yorker, the New Republic, and national newspapers
concerned that the Harvard and Stanford Law Schools
in particular were being taken over by radicals. We were
also a source of real energy and hope for ourselves—young
law professors who had been shaped by the utopian aspirations
of the 1960s for a democratic and egalitarian society
and who wanted to carry our insights forward toward the
transformation of legal education and the whole world—as
well as for the generation of law students following us who
could still feel in the air the idealism, and basic rightness of
that idealism, that was pulsing through us and pushing us
all forward. Hundreds of people attended our annual conferences
that took place at a different leading law school
each year; men, women, and increasingly men and women
of color engaged in intense intellectual debate during the
day and danced late into the night to the Rolling Stones and
Aretha Franklin; and week-long summer camps became
exhilarating annual gatherings full of serious study and fun.
Although the planning for them may have been in the
works in some Washington think-tanks, the Federalist
Societies had not yet taken their place as campus institutions,
societies which were eventually publicly blessed and
thanked by Mr. Reagan himself toward the end of his second
term for having decisively defeated the plague to our
national well-being known as Critical Legal Studies.
Duncan's "little red book" was thus flung into an historical
moment ripe with hope, and yet with storm clouds on
the horizon that would eventually overwhelm us. Those
storm clouds were not by any means exclusively the creation
of our opponents—they were in significant part the result of
the limitations of our own vision and of the movements of
the 60s themselves, including our own. In my opinion, some
of those limitations are reflected in Duncan's book, and I
will address them momentarily. But first I want to state what
is brilliant and important about the book, and how the ideas
in it accurately express the relationship between the revelations
unveiled by the movements of the 60s and the critique
of legal education as one embodiment of the reproduction of
hierarchy that, to use Duncan's word, "maims" all of us by
depriving us of our capacity for freedom and collective selfdetermination
... as well as (and this prefigures my critique
of the book) our spiritual capacity to become fully present to
ourselves and to each other in relations of loving human
connection and mutual recognition.
• • •
When I say that Duncan published his book in the
midst of a war waged by the dominant culture against
the movements of the 60s, what I mean by "war" is not primarily
a struggle to control who will run the economic system
or the institutions of American society, but a war over
the nature of consciousness, and the nature of reality itself.
The 60s was fundamentally not a movement for reform or
revolution according to the inherited meaning of those
words, as if what the world needed was a reordering of the
external relationships of reality to make economic and political
"systems" more equal, or to overthrow the power of the
ruling class and replace it with some kind of externally pictured
mass democracy, or anything of that kind. The movement
was rather a movement of desire, of aspiration, an
opening up of closed space that allowed millions of people
to come to see and feel something invisible—namely, the artificiality
and even unreality of the inherited world and the
possibility of a better, more humane, and more real one.
Many, many forces contributed to this opening up of
desire, among them the civil rights movement of the 50s,
Elvis, the Beat Poets, the evocative lyricism of JFK, the
insufferable lack of oxygen in the atmosphere of the post
World War II kitchen culture of the 1950s. But the main factor
was the Vietnam War and the growing awareness among
millions of young people in particular that something insane
was taking place, and it was taking place not because the war
was in the economic interests of General Motors but
because in some sense the whole world was out of its mind,
out of touch with Being itself, living out scripts that rationalized
the mass murder of millions of human beings.
There is an album from that period by a rock group called
the Electric Flag that illustrates what I mean by this. The
opening song begins with then-president Lyndon Johnson
saying in the southern drawl that we heard every night on the
news "My Fellow Americans ..." followed by a few words,
and then a mass of people bursting into laughter. The point
was that out of the passive confusion that characterized the
initial years of ambivalence toward the war, and out of the
contradiction that the draft was posing for all of us of
whether we were going to ... die ... because it was our "role"
to do so, and out of countless televised images of human suffering
and death that acquired a surreal character as all of us
faced with this contradiction gradually grasped that real people
and not televised images were dying without any plausible
narrative intelligibility (without any story we could tell
ourselves of why this made sense)—out of all this came the
genuine insight that Lyndon Johnson was in some way merely
playing the role of "president" and that things were happening,
real events were occurring, that were the outcome of
large masses of people all playing one role or another in the
reproduction of a society that was unable to stop this war
precisely because they were entrapped in these roles.
I say that this insight was an expression of the opening up
of desire because it emerged through a liberating process of
mutual discovery, in which each of us was suddenly brought
into a palpably more authentic contact with others through
a dawning "shock of recognition." Out of the drifty isolation
of our passive conditioning, in which we were to simply play
out the passive roles assigned to us by accident of birth and
the cultural predestinations that followed from our class,
race, gender, and a multitude of other social attributes, we
suddenly felt galvanized into a movement of more connected
and more real human beings who could, must,
actively shape a more authentic destiny for ourselves and a
more just and loving world. Through this phenomenal ricochet
of mutual recognition that spread rapidly across the
entire face of the earth, what had been invisible became visible
and a kind of authentic, elevating love and joy spread
across the psycho-spiritual energy field that was social existence
itself. That turning of the spirit outward toward the
other is the true meaning of the word "movement," since of
course nobody physically moves anywhere except during
demonstrations or when dancing to music.
But this process of revelation did not instantly change the
inherited world and its institutions, values, loyalties, and distributions
of power and wealth. On the contrary, although
we eventually stopped the war, the patterns of social identity
that shaped American institutions kept grinding along, and
the farther one was from the liberating experience of the
movement, the more one resisted and was even enraged by
the movement's challenge to the legitimacy of everything
that one's conditioning had led one to feel was the basis of
one's very social existence and connection to others.
Furthermore, the conflict about the very nature of social
reality existed within the heart of everyone who was "in" the
movement as well as those outside it—we ourselves were
threatened by our opposition to the parents who had raised
us and whose love and values and ways of life we had internalized,
and in any case we had no idea how to create our
own new world whole-cloth out of nothing but a powerful,
blinding insight when the weight of history had produced
the institutions and the means of material subsistence that
were the only ways of life that were "really there" in front of
us. Thus the "war" that the movement(s) of the 1960s
sparked in the culture was a war between two consciousnesses
of reality existing not "between" different collections
of individuals but side by side within the whole of social
consciousness that was still, for the most part (for there were
many, many radical experiments that tried to start over from
scratch), the inherited world suffused with the norms, ideas,
and values of prior generations. Thus the origin of the
German radical Rudi Dutschke's famous injunction to all of
us who became activists determined to change the world in
accordance with our new-found insights: "We've had the
60s. Now for the long march through the institutions."
Legal Education and the Reproduction of Hierarchy is an
expression of one ingenious mind's attempt to bring what
was authentic in our awareness to an unveiling of the
encrusted and "maiming" patterns of passive alienation in
one of the institutions that as a totality generated the
Vietnam War (55,000 Americans, two million Asians dead,
for "nothing") and that was trying to continue on indefinitely
reproducing this social alienation in future generations.
Duncan's book is not mainly about law school, but
about the reproduction of hierarchy within the society as a
whole in a way that actually constitutes the society by
recruiting each new generation to become passive actors,
role-players, in relationship to a self-legitimating set of ideas
and patterns of deference and authority. It is about law
school only in the sense that it is a detailed phenomenological
description of one particular such institution that
Duncan himself is immersed in and in the sense that his
"theory" is precisely that it is through telling the story of his
world in enough detail to make it uncontrovertibly recognizable
to the reader that one can "recognize" the nature of
society as a whole as a consciousness-war more or less corresponding
to the big war of the 60s I've just described in
larger societal terms. In other words, it is about law school
in the very specific sense that law school is training for hierarchy
generally, and that law school is one very important
hierarchy itself insofar as its training has as its specific aim
teaching the "legitimating ideology" that serves to legitimate
all of the others. This last point is in fact hardly
touched on in this book—it appears only in the description
of the role of the curriculum in transmitting the presupposed
legitimacy of the basic rules of the "private" capitalist
marketplace in contracts, torts, and property during the
first year and the center-left consensus of modest reforms of
capitalism institutionalized in the New Deal during the second
year—but it is a major theme of the rest of most Critical
Legal Studies writing, and its minor presence here is an
important bridge to that writing. The vast majority of the
book in the first six descriptive chapters is devoted to the
first main idea of revealing, mainly through the use of concrete
expressive examples, how the hierarchy itself reproduces
itself as an alienation factory, as a process of bondage.
To understand the book and its relationship to the consciousness-
war theory of our society that I am claiming it is
an expression of, it is important to grasp that the book was
written against the received views of the Left about the role
of law and legal education in maintaining the existing order
of things. In 1983, the received view prevalent within the
National Lawyers Guild and the Left in general was either
that law is an instrument of the ruling class, "used" by those
in power to maintain their class superiority in relation to an
economic system that is the true locus of social struggle, or
that law is a potential tool of gradual change through statutory
or common-law liberal reforms that will give space to
the oppressed to fight for more fundamental change.
Duncan spells out his critique of both of these positions in
the book itself, mainly by emphasizing, for example, that
the market and the State are now so interpenetrated that it
is meaningless to say one is "more fundamental" than the
other, or that the idea that today's "proletariat" of the marginalized
poor (he names welfare mothers, illegal immigrants,
and the homeless) is going to lead the revolution is
just implausible, or that the reform strategy just can't work
because external modifications of the System remain encapsulated
within the internal reproduction of hierarchical patterning
that is the system. And he shows how both of these
theories serve as rationalizations that actually disempower
law students from engaging in struggle right now to transform
law schools as part of the anarcho-syndicalist, workplace-
by-workplace organizing that the book advocates as
the cell-by-cell way to actually change the world.
But through the consciousness-war lens of the historical
period that I am emphasizing, the most important error in
the received Left views of law was precisely that they picture
law and legal education as instrumental "tools" of
domination within an "entity" called society that actually
does not exist—because what does exist is the consciousness-
war between authenticity and alienation that is masked
and denied precisely by "the reproduction of hierarchy"
that keeps spreading itself across the face of the networks of
human interaction we call society. Duncan is not denying
the existence or importance of economic inequality and
injustice or of other forms of inequality and injustice that
CLS, as one incarnation of the Left, was/is fighting against.
But he is writing a work of expressive revelation that makes
a demand on the reader to recognize that the source of the
problem is not "out there" but right in front of him or her,
a condition of existential servitude to a great nothing (the
hierarchy with no heart or center to it) masked by a kind of
universal fealty that is just self-deception and "false consciousness."
Thus the strategy in the last chapters of the
book calls not for changing "society" as if there were some
External Thing outside of us that we had to somehow
manipulate into democracy and egalitarianism and as
lawyers (law professors, law students) "using" law as a
"tool" to do so, but rather for cellular organizing to resist
the pain right now of having one's existence as a free being
"maimed" by a distortion of social consciousness that is
always occurring where we are, right now. Within this
effort, law is not a "tool" but a part of the consciousness,
encoding values legitimating hierarchy that are masked by
claims to neutrality and mere craft ("legal reasoning") that
can and should be exposed and contested just as the institution,
law school, that teaches that law should be.
What is ingenious about the book is not the correctness
of this point of view stated abstractly as I have just done,
but the revelatory power of the description of law school
itself. Every detail of life in law school—from the way the
interaction of the hard case and the soft case seduces the
student into accepting, and the way each is taught draws the
student into believing in, the power of legal as opposed to
"non-legal" reasoning; to the way that fatuous attacks on
law professors in the law school student paper actually help
to constitute the pedestal upon which the very meanest of
professors must be located (as does the mercy dispensed by
these very professors: "his Clark is worse than his Byse"); to
the way that the tiniest of gestures serve as modeling displays
made coercive by the fact that everyone watching
everyone else follows them (the
students seeing "'secretaries'
treating 'professors' with elaborate
deference, as though her
time and her dignity meant
nothing and his everything, even
when he is not her boss," and
that humane relations between
them when they occur, "are a
matter of the superior's grace,
rather than of humane need and
social justice"); to the role of law
review ("An instant ('the lightening
of grades') converts jerks
into statesmen; honored spokespeople
retire to the margins,
shamed"); to the micro-details of
social coercion students learn to
impose on themselves that both
reinforce and erase class and
race hierarchies ("Lower-middle
class students learn not to wear an undershirt that shows,
and that certain patterns and fabrics in clothes will stigmatize
them no matter what their grades," while "Black students
learn ... that their very presence means affirmative
action, unless it means 'he would have made it even without
affirmative action'"); to literally a hundred other examples—
every detail of law school life is subjected to Duncan's x-ray
vision and made transparent as a more or less unified way of
life that seems impossible to escape from and serves as training
for the later hierarchies of the Bar, whose saints come
marching in, as Duncan also describes, beginning with the
interview process of the second year and the fancy hotels
you will be invited to fly out to stay at and the denial of
humiliation that is manifested in the 'ha, ha' mass posting of
one's rejection letters in the dorms, and so on and so on and
so on right up through one's poignant death (this part is not
in the book but is implied by it), when one may realize for
the first time that one has lived a life imprisoned in masks
that turned into a false self, a life without freedom, authentic
personal dignity, and the integrity of self-determination.
As a way of showing both the strengths and limitations
of the book as I see it, and of establishing the relation of the
book to the work of Critical Legal Studies as a whole, let me
again call Duncan's method "expressive revelation" and
separate this method into two consciousnesses: Duncan's
own consciousness, which I will call the seeing consciousness,
and the consciousness that he is attempting to expressively
reveal or unveil, which I will call the seen
consciousness, that of the role-player caught up in the
drama of the reproduction of law school hierarchy. In my
view, the seeing consciousness as it is manifested in all of the
book's examples of training for hierarchy is brilliantly
insightful and is aligned with what I earlier described as the
liberating consciousness of the
movements of the 60s. The seeing
consciousness purports to be
free and is making a powerful
appeal to the seeing consciousness
in the reader to identify
with this freedom through the
unveiling of the "false consciousness"
of the seen consciousness.
And it proposes concrete strategies
(cell-by-cell organizing, the
Left Study Group) where possibilities
of resistance to the
enveloping power of the seen
consciousness can be "cracked
open," resisted, and effectively
contested.
So far so good.
But the problem, as I see it,
comes with the seen consciousness,
for a central characteristic
of the seen consciousness is that it does not wish to be seen.
Indeed, the entire point of the book is to show that this consciousness
comes into being through an elaborate process
of "imprisonment," in which each act of modeling deference
to hierarchy—together producing a kind of unified
ubiquity of social interactions, as well as mystifying ideas
that cement this hierarchy in the group's self-reflection—is
designed both to keep reproducing the hierarchy and to
prevent this intention from becoming visible. As Duncan
puts it, what is initially a mask becomes the self. His point is
precisely that the reproduction of hierarchy is elaborated
through what I would call a "circle of collective denial," or
through what he on several occasions calls a denial of "false
consciousness" that is coercively made unaware of its own
falseness. This aspect of what I am calling the seen consciousness
provides the link between the unveiling insight
of the movements of the 60s, its insight into the unreality of
a society of people playing roles that are mistaken for "who
we really are," and Duncan's own insights into legal education
as one important arena where this process takes place
and reproduces itself, like an amoeba.
The reason that this aspect of the seen consciousness is a
problem is that the book assumes that the seen consciousness
can be resisted and eventually undone by a spreading
of the seeing consciousness's discovery of its own freedom—
through revealing the seen consciousness for what it is and
engaging in forms of political organizing that oppose the
hierarchy's false claims in the name of freedom and true collective
self-determination. In my view, however, this contradicts
the very social nature of the reproduction of hierarchy,
in which people gain recognition and their personal identity
as social beings connected to others by accommodating to
the world of others that surrounds them. Indeed the only
plausible explanation for why law students don't spontaneously
resist and reject their assimilation to a hierarchy
that "maims" them and deprives them of their authentic
selfhood is that the reproduction of hierarchy is the reproduction
of our own social alienation, to which, absent some
liberating social movement that frees us for a more authentic
form of social connection, we have no choice but to succumb.
To apply this very insight to the revelatory power of
the seeing consciousness, Duncan's own capacity to see
through and express the alienated character of legal education
and the reproduction of hierarchy generally is not the
result of the freedom and insight of a singular individual
(here, Duncan himself), but rather the expression of the
insight of an era that is itself an expression of an inherently
social movement of inherently social beings liberated (only
partially, alas) from their social alienation and inherited
conditioning by the affirming gaze of the Other, with each
serving as the Other for the Other. Just as the coercive
denial spread throughout the law school hierarchy is made
coercive by making accommodation serve as a condition of
social membership and identity, so also the capacity for
freedom from the hierarchy—the capacity to even see it as
social alienation—requires the Other: others who form the
more real and more present and more free and more
authentically connected consciousness of the movement.
The limitation of Duncan's book is that it does not, in
my opinion, accurately analyze the cause of the very "sickness"
he describes, a limitation that links the book to what
became the dominant point of view in Critical Legal Studies
and that must be transcended if we are to pick up where we
left off. The work of CLS was always divided into two main
strands: what might be called the critique of alienation on
the one hand and the neo-legal realist/deconstruction critique,
which became known as the "indeterminacy" critique
on the other. In part because of the influence of virtually all
of Duncan's other writings about law, the indeterminacy critique
became the dominant one within CLS and was
devoted almost exclusively to demonstrating in a myriad of
specific instances—in hundreds of articles—what is merely
alluded to in the first chapter of Legal Education and the
Reproduction of Hierarchy—namely, that all legal reasoning
as well as justifications for the alleged legitimacy of legal
reasoning (e.g. the work of Ronald Dworkin) can be shown
to be sufficiently vague, circular, self-contradictory, or
manipulable so as to not provide any plausible justification
claming to legitimately dictate the outcomes of cases.
Although in its phenomenological or descriptive aspect,
Legal Education and the Reproduction of Hierarchy is mainly
Duncan's very best published description of the alienation
critique, in its separation of the Seeing consciousness and
the Seen consciousness the book is also consistent with the
indeterminacy critique. For the indeterminacy critique is
fundamentally not a critique that uses the social-phenomenological
method of "expressive revelation" to unveil the
alienated character of legal thought and culture, but is
rather what I would call a neo-formalist analytical mode of
critique that seeks to affirm the freedom of the reader from
the alleged determinacy of legal doctrine and justifications
for doctrine. In this respect, the indeterminacy critique
spilled into and joined forces with post-structuralism, identity
politics, and deconstruction that more or less took over
CLS and the academic Left as a whole with the collapse of
socialism and Marxist criticism.
The problem with the indeterminacy critique is that it
wants to argue for democracy and egalitarianism by showing
that we are all free from any purported state of bondage
to legal rules and the political justifications for them, but it
leaves us each alone in our freedom—it does not want to
come to grips with the social nature of the alienation critique,
which accounts for the illusion of bondage by its
recognition that the Seen consciousness clings to the determinacy
and the purported legitimacy of law and legal institutions
because it does not wish to become conscious of itself.
Whether or not it's a denial of false consciousness, people
are just not going to give up their attachment to the alienated
networks of passive role-performances, or their belief
in the legitimacy of legal reasoning and legal education, if
maintaining their allegiance to these modes of alienation is
their only apparent source of social identity and self-worth
as inherently social beings, that bowing to this alienation is
even the seemingly necessary condition of group membership.
The relationship of Duncan's book to the indeterminacy
critique in CLS scholarship is that both covertly
assume that people will want to reclaim their freedom, from
hierarchy, as well as from the supposed objectivity that
rationalizes the legitimacy of legal reasoning, if their freedom
from the "false necessity" of following the rules can be
shown to them (in the case of hierarchy, through this particular
book's method of demystifying "expressive revelation";
in the case of legal reasoning, by the analytical
deconstruction of the purported rationality of the thoughtprocess).
But this is not the case if freedom's just another
word for nothing left to lose, and if un-freedom is the only
source of fulfilling the longing for mutual recognition and
social connection that inheres in the nature of social existence
itself.
It was Martin Luther King who most fully grasped this
truth in relation to law when he defined justice as "Love
correcting that which revolts against love." The point of this
idea in relation to the reproduction of hierarchy is that the
"sickness" of the "maiming" hierarchies of legal education
that Duncan so brilliantly describes is a spiritual sickness
that must be healed by new methods of educating lawyers
that bind them to the moral ideal of creating a loving and
caring society. Like Duncan's book itself, the 60s provided
my generation with a glimpse of King's insight, a glimpse of
our essential possibility for authentic and loving connection
that could transcend the spiritual distortion of our forced
allegiance to the legacy of social
alienation that we inherited from
prior generations and that were
indeed, as Duncan says, a form
of collective denial of "false consciousness."
But the glimpse
turned out to be too brief and
too frightening in its very radicalism
to allow us to develop the
way out of the claim that our
prior conditioning made upon
our loyalties; and within both
CLS and the 60s themselves, we
were not yet able to link the
experience of the possibility of
liberation-through-each-other
with what many spiritual traditions
call The Way, the details of
the spiritual strategy to successfully
transform our servitude to
hierarchy into an authentic,
beloved community.
What would this mean in relation to the transformation
of legal education in a more "just" direction within the
meaning of King's definition? Paradoxically, I am in substantial
agreement with a core element of the last chapters
on "Strategy in Legal Education" and the "Reproduction
of Hierarchy"—the vision of an existential, cell-by-cell
transformation of the whole in which concrete groups of
students, teachers, and lawyers see the hierarchies before
them as an unnecessary network of mutually legitimating
denial of authentic human longing that rationalizes alienation,
domination, and even cruelty and that must be overcome
piecemeal, rather than, say, seizing control of the
State or the means of production or any of the other
"totalizing" strategies that in 1983 were part of the dominant
Left fantasy about replacing the current order of
things. I also think there is some appropriate and limited
value to the indeterminacy critique of legal reasoning as an
intellectually helpful part of this process in showing that
no political or legal concept, no matter how lofty (liberty,
equality, democracy), can be shown to entail a particular
result, which is to say, to entail the realization of the ideal
claimed by that concept. As one moment of the spiritual
awakening that leads our students and ourselves to move
toward correcting that which revolts against Love, it is
helpful to see that this has nothing to do with the concept
of love, which is of course indeterminate in what it entails,
but rather with the undistorting, the healing, and the
resacralization of our experience of one another as social
beings whom we can come to recognize as the source of
each other's completion.
But in order to "correct" in King's sense what should
have been the main theme of CLS (i.e., that the legal system
legitimates social alienation)
and what is the main accomplishment
of Duncan's book as a
critique of legal education as an
instance of reproducing social
alienation, this path of cellular
transformation must be reunderstood
as a morally compelling,
spiritual activity rather
than merely an intellectual/political
revolt of free individuals
against a surrounding false consciousness.
The work of transformation
must offer those who
engage in it the kind of social
healing and legal wisdom that is
capable of healing the underlying
motivation for the maiming
collective denial upon which the
book places so much emphasis, a
denial that otherwise will not be
capable of becoming conscious of itself by overcoming the
counter-influence of the processes of social coercion that
institutionalize this denial and keep reproducing it, as they
have successfully continued to do from 1983 until today.
• • •
The Project for Integrating Spirituality, Law and Politics,
of which I am a member, is a group of lawyers, law
teachers, and law students who are trying to do precisely
this: to engage in the piecemeal spiritual disalienation and
transformation of the legal profession, of which legal education
is a very important part. I also work in one cell of legal
education, New College of California's public-interest law
school, and in a cell within that cell, the first-year course in
Contracts that I have taught for almost thirty years.
In that cell within a cell within a cell, every year I teach
the case of O'Neal v. Colton School Board of the State of
Washington. Mr. O'Neal was a long-time school teacher in
Colton High School who had developed diabetes and
found late one spring that he could no longer read well
enough to see his students' papers, read their writing, and
read the board in his classroom. During the summer following
the end of that year, he reluctantly decided that he
had no choice worthy of his students and his school but to
inform the School Board that he could not return the following
year, although he was "under contract" to do so.
The School Board shocked Mr. O'Neal by replying that he
had no justification for "refusing to perform" and rejected
his attempted resignation, denying him in the process his
request for his accumulated 27 1/2 sick days. The legal issue
presented to the students by the casebook and the case
itself is whether Mr. O'Neal was excused from "performing"
under the doctrine of impossibility of performance.
It is possible to teach this case in many ways. One is to
ask a student from a position of superior knowledge,
backed by the threat of humiliation and non-recognition of
the student's legal talent, a question designed to test the student's
capacity to see that Mr. O'Neal should have foreseen
the risk of his disabling illness prior to entering his contract
and that to excuse him under these circumstances would
both undermine personal responsibility for assumed risks
and bring inefficiency and instability into market transactions
where no transaction costs are present that might
justify governmental interference in the market (a law-andeconomics
method of conditioning students to embrace the
legitimacy of competitive individualism and a materialist
conception of value popular today, although largely
unheard of in 1983). Another certainly more common
approach would be to use the same interpersonal methods
to compare Mr. O'Neal's resignation to, say, a deep-sea
diver's refusal to go through with an agreement to dive for
valuable pearls for fear of being attacked by sharks, an exercise
in distinguishing cases involving foreseeable risks that
eliminates the fancy philosophy (if law-and-economics can
be considered such) and reduces legal reasoning to more of
a trade involving cleverness but transmitting the same values
to students. Still a third, more liberal approach would
be to adopt the same superior stance as the teacher but treat
O'Neal v. Colton as just an easy case to get across the rule
that serious illness forms the basis for a valid impossibility
defense in employment cases, but focus on the Court's formalistic
refusal to allow him the sick days, which the Court
in fact says fell through because accumulated sick days must
be claimed before the end of one's employment, and the
contract was terminated at the moment of impossibility
when the diabetes disabled Mr. O'Neal from performing.
Even more "political" would be an effort to bring out the
labor movement's long struggle to win the granting of accumulated
sick days at all for workers in a market characterized
by inequality of wealth and power and the injustice of
the opinion's formalism in light of the length of Mr.
O'Neal's employment.
Personally, in my cell, I have used all of the foregoing
methods, although to the extent that I employ the
"Socratic" posture in my egalitarian school, I do it playfully,
to remove the (in my opinion) absurd implication that it is
humiliating not to know the fancy (1) or clever (2) or historically
informed (3) answer. And I explicitly bring out at
the end of this portion of the discussion what the rule is in
employment cases.
But then I ask a question that addresses what I honestly
deeply feel about Mr. O'Neal as I have thought about him
and his family over the years. I ask a student how a local
community ought to respond with justice to a long-time,
perhaps venerated high school teacher who has taught most
if not all the children in the town of Colton, many of whom
are now grown, many of whom now have children of their
own who benefited from Mr. O'Neal's teaching. Under all
of the traditional approaches to teaching the case described
above, the very best treatment Mr. O'Neal receives means
going home alone with a little money to at most his wife and
children, if he has a wife and children, to rattle around in
retirement half-blind until he dies. Might it be our legal
obligation—that is, the legal obligation of the School Board
as the embodiment of the community—to keep him on as an
elder, to make sure he is venerated and appreciated and
taken care of and even given an active mentoring role in the
school that doesn't require the eyesight acuity of everyday
teaching? Mightn't this elevate the later years of Mr.
O'Neal's life, give great pleasure to his former students,
bring a greater sense of community to the high school as a
whole, and strengthen the high school's ties to the rest of
the town?
In my view, it is this sort of approach, writ large and
reimagined toward transforming the whole moral and spiritual
nature of the curriculum as well as informing the
teaching of the very nature of the social interventions one
might consider trying to make as a lawyer in the school's
clinics and later as a lawyer in practice, that undermines the
reproduction of hierarchy and carries forward the promise
of Critical Legal Studies. The reason is that this approach
touches on the longing for a beloved community, and of law
as a path to the creation of such a community, that exists in
each of us—indeed even consciously in virtually all law students
on the first day of law school before they are conditioned
to become clever, cynical arguers for the materialist
self-interest of clients at the expense of their brothers and
sisters. Or to put it differently, in my view there is no
"opposite" of the reproduction of social alienation and
hierarchy except for the experience of love and community,
and then the reproduction of the experience until it
becomes confident of itself. As Duncan's dear and lifelong
friend, I actually am confident that this is the inspiration
behind his "Polemic Against the System"—his brilliant and,
at the time of publication, daring little red book.
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