1 It's not a dilemma for self-deluded liberals who believe in facts. Lionel Trilling, for example, characterizes Orwell's “discovery” of the failings of communism as being rooted in the notion that “those members of the intellectual class who prided themselves upon their political commitment were committed not to the fact but to the abstraction.” L. Trilling, George Orwell and the Politics of Truth, in The Opposing Self (1979). Trilling goes on to extol Orwell because “he had never believed that the political life could be an intellectual idyll. He immediately put his mind to the politics he had experienced. He told the truth.”Id. at 171 (emphasis added).Google Scholar

2 See, e.g., Kennedy & Klare, A Bibliography of Critical Legal Studies, 94 Yale L.J. 461–90 (1984); Essays on Critical Legal Studies Selected from the Pages of the Harvard Law Review (1986).Google Scholar

3 We learned in law school, for example, to do “doctrinal” analysis and “policy” analysis: “Doctrinal analysis was (as I now recognize) a kind of toned-down legal realism: we learned how to take apart the formal arguments for the outcome of a case and to find the underlying layer of justifications that would really explain the case, a layer of 'principles' and 'purposes' behind the rules. Policy analysis was a kind of quickie utilitarian method for use in close cases-it was supposed to enable us to argue for outcomes that could efficiently serve social policies somehow inhering in the legal system” (emphasis in original). R. Gordon, New Developments in Legal Theory in D. Kairys, ed., The Politics of Law 282 (1982).Google Scholar

4 Polanyi, M., Personal Knowledge 244–45 (paperback ed. 1984), writes: For this is the fact. The recognition granted in a free society to the independent growth of science, art and morality, involves a dedication of society to the fostering of a specific tradition of thought, transmitted and cultivated by a particular group of authoritative specialists, perpetuating themselves by co-option. To uphold the independence of thought implemented by such a society is to subscribe to a kind of orthodoxy which, though it specifies no fixed articles of faith, is virtually unassailable within the limits imposed on the process of innovation by the cultural leadership of a free society. If this is what Lenin meant by saying that “The absence of party spirit (partinost) in philosophy is nothing but despicable and disguised servility towards idealism”, we cannot deny the charge. And we must face also the fact that this orthodoxy, and the cultural authorities which we respect, are backed by the coercive power of the state and financed by the beneficiaries of office and property. The institutions by which their authority is exercised, the schools, universities, churches, academies, law courts, newspapers and political parties, are under the protection of the same policemen and soldiers who guard the wealth of the landowners and capitalists. (Footnotes omitted)Google Scholar

5 E.g., T. Kuhn, The Structure of Scientific Revolutions (1970).Google Scholar

6 Foucault, M., The Archaeology of Knowledge (1972); id, The Order of Things (1971). For a pioneering if ultimately oblique effort, see also S. Pepper, World Hypotheses (1942).Google Scholar

7 See Wittgenstein, L., On Certainty (1969).Google Scholar

8 E.g., A. Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229–49.Google Scholar

9 See E. P. Thompson, The Poverty of Theory or an Orrery of Errors 37–50 (1978); E. K. Trimberger, E. P. Thompson: Understanding the Process of History, in T. Skocpol, ed., Vision and Method in Historical Sociology 211–43 (1984); Gabel & Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N.Y.U. Rev. L. & Soc. Change 369, 371–75 (1982–83); see also Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984); see generally M. Poster, Existential Marxism in Postwar France: From Sartre to Althusser (1975).Google Scholar

10 K. Marx & F. Engels, The German Ideology 47, 64 (1977).Google Scholar

11 The classic text is Marx, On the Jewish Question, in Easton & Guddat, eds., Writings of the Young Marx on Philosophy and Society 216 (1967).Google Scholar

12 Marx, K., Preface, in M. Dobb, ed., A Contribution to the Critique of Political Economy 20 (1970).Google Scholar

13 See Gouldner, A., The Two Marxisms (1980) (esp. first two chapters), for an account of the tensions within Marxism.CrossRefGoogle Scholar

14 See the essays by D. Sugarman, Introduction and Overview; R. Kinsey, Karl Renner on Socialist Legality; and D. Sugarman, Law, Economy, and the State in England, 1750–1914: Some Major Issues.Google Scholar

15 See the essays by M. Cain and Gramsci in The State and the Place of Law (esp. at 106); P. Fitzpatrick, Law, Plurality and Underdevelopment (throughout, but especially at 159–63); M. Ignatieff, State, Civil Society and Total Institution: A Critique of Recent Social Histories of Punishment (at 184–85); and at 215–18.Google Scholar

16 See the essay by R. Warrington, Pashukanis and the Commodity Form Theory (at 49–52 and again at 59); and at 11–13.Google Scholar

17 C. Sumner's essay, Law, Legitimation and the Advanced Capitalist State: The Jurisprudence and Social Theory of Jurgen Habermas (at 146–54).Google Scholar

18 In R. Cotterrell's essay, Legality and Political Legitimacy in the Sociology of Max Weber (at 83, 87–88).Google Scholar

19 See 35–39 and Bankowski's essay, Anarchism, Marxism and the Critique of Law (at 270, 286–89).Google Scholar

20 Cain's and Bankowski's essays overlap in part with the basic argument, but each has something else, important and different, to say as well. See infra last two sections of this essay.Google Scholar

21 These phrases are used throughout Fitzpatrick's essay, but see especially at 160 and 175.Google Scholar

22 Id.Google Scholar

23 Id.: Thus, the private law form of facilitative laws conceals their quasi-public law qualities. In other words, facilitative laws straddle private and public law; in so doing, they illustrate the inadequacy of the public/ private law distinction, that is, its insensitivity to the hybrid and ultimately coercive nature of all law, public and private. Facilitative laws are agencies of state policy in that they define the range of permissible conduct, albeit through the self-directing actions of private individuals. They are also instruments through which individuals may expand or contract their autonomy and, in so doing, promote, qualify or subvert official state policy.Google Scholar

24 For a “pluralist” account of some American legal history that does not even claim to be Left and yet seems utterly consistent with Sugarman's program, see H. Hartog, Pigs and Positivism, 1985 Wis. L. Rev. 899.Google Scholar

25 Sugarman suggests it is; see p. 217.Google Scholar

26 Hart & Sacks, The Legal Process: Basic Problems in the Making and Application of Law (tent. ed. 1958).Google Scholar

27 The rediscovery of substantive pluralism is not just a British phenomenon. See, e.g., T. Skocpol, Political Response to Capitalist Crisis: Neo-Marxist Theories of the State and the Case of the New Deal, 10 Pol. & Soc'y 155–201 (1980). It should be noted that there exists a version of “radical” pluralism that goes well beyond the urge to improve one's theoretical positions by enriching the analysis. That version is the one that I see as the implicit political program of the work of Michel Foucault. Its mission is to smash or transcend the reified Human Subject, recover the “originality of difference,” promote the “insurrection of the subjugated knowledges,” replace “sexuality” with “pleasures of the body,” all the while paying attention to the concrete and local realities of power and domination. See Foucault, M., Two Lectures, and Truth and Power, in C. Gordon, ed., Power/Knowledge: Selected Interviews and Other Writings: 1972–1977, at 78–133 (1980); 1 The History of Sexuality: An Introduction, trans. R. Hurley (paperback ed. 1980). See also G. Deleuze & F. Guattari, Anti-Oedipus, trans., R. Hurley, M. Seem, & H. Lane (1977); A. Katz, Foucault for Lawyers (unpub. manuscript, State University of New York at Buffalo Law Library). See generally M. Poster, Foucault, Marxism & History (1984).Google Scholar

28 For the basic idea, see J. Derrida, Of Grammatology, trans. G. Spivak (1976) (the translator's preface is very helpful, at ix-lxxxvii). For some critical accounts, see T. Eagleton, Literary Theory: An Introduction 127–50 (1983); E. Said, The World, the Text and the Critic 31–53, 158–225 (paperback ed. 1983). For critical legal works showing more or less affinity with the deconstructionist mode or its influence, see J. Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685 (1985); C. Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997 (1985); G. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984); G. Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985). See also G. Frug, Henry James, Lee Marvin and the Law, N.Y. Times (Book Review), Feb. 16, 1986, at 1, col. 1.Google Scholar

29 And it surely can be used to generate moments of liberation. See, e.g., Peller, supra note 28, at 1183–91 (discussing (and deconstructing) “institutional settlement,” and “sexual consent,” respectively). See also D. Cornell, Toward a Modern/Postmodern Reconstruction of Ethics, 133 U. Pa. L. Rev. 291, 297 n.19 (1985).CrossRefGoogle Scholar

30 See, e.g., R. Cover, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). See generally M. Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502 (1985).Google Scholar

31 See Burton, S., An Introduction to Law and Legal Reasoning 188–93 (1985).Google Scholar

32 This issue is similar to the fussing about “nihilism,” at least the version that sees the choice as between empty nihilism (the only kind there is) and some new version of liberal moralism. See Singer, J., The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984). The real choice is between bad nihilism (which I see deconstruction ultimately representing) and good, positive, energetic nihilism. According to Octavio Paz: “The real evil of liberal capitalist societies is the predominant nihilism, not a nihilism which seeks the critical negation of established values, but a passive indifference to values.”Quoted in An Interview with Czeslaw Milosz, N.Y. Rev. Books, Feb. 27, 1986, at 35. See Fraser, D., Truth and Hierarchy: Will the Circle Be Unbroken? 33 Buffalo L. Rev. 729, 762–775 (1984) (calling for “heretical”“abnormal discourse” and “moral terrorism”). See also I. Turgenev, Fathers and Sons, trans. Makanowitzky (paperback ed. 1959), at 20 (a nihilist is not someone who “acknowledges nothing” but someone who “respects nothing”). Finally, I once read or heard a statement (I cannot find the source) that what James Joyce's Ulysses was all about was “the simultaneous negation of value and affirmation of being.” That's “good” nihilism.Google Scholar

33 See Katz, , supra note 27.Google Scholar

34 Gleick, J., The Man Who Reshaped Geometry, N.Y. Times, Dec. 8, 1985, £ 6 (Magazine), at 64, col. 1: Self-similarity can lead to some seeming paradoxes. [Benoit] Mandelbrot put one forward when he asked, in the title of an early technical article, “How long is the Coast of Britain?”“People usually give two answers,” he says. “Either 'I don't know, it's not my field,' or 'I don't know, but I'll look it up in the encyclopedia,'” In fact, it depends on the length of your ruler. As the scale becomes finer and finer, bays and peninsulas reveal new subbays and subpeninsulas, and the length-truly-increases without limit, at least down to atomic scales.Google Scholar

35 Freeman, Truth and Mystification in Legal Scholarship, 90 Yale L.J. 1229–33 (1981).CrossRefGoogle Scholar

36 We may pretend that law is “outside”; alienation itself is in ourselves and nowhere else: “While the law can, however mistakenly, be conceived as something that exists outside of us, alienation can refer only to a quality of our experience that exists inside of us, and whose meaning therefore can be 843 revealed only 'from the inside.' It is precisely the weakness of most existing theories of alienation that they seek to 'explain' our alienation from the outside, as if the quality of an experience could be illuminated or even 'reached' by a set of explanatory concepts that purport to 'account for' it.” P. Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1565 (1984).Google Scholar