Let me focus on aspects of Robin’s Critical Legal Studies chapter as a way of in part accounting for the disappearance of what Robin calls the “moral brief” in CLS. This may help account for why it is so difficult to achieve today the morally-centered jurisprudence to which her book aspires, but also why new movements may be emerging that will make this possible .
First let me say I very much like the way Robin shows the indeterminacy critique ingesting the moral brief within CLS. I agree with Robin that the indeterminacy critique should only have been an ‘analytical’ lesser included element in the moral critique instead of swallowing it whole by self-referentially rendering the moral critique itself indeterminate (and I said so in my “Critical Legal Studies as a Spiritual Practice” at 36 Perpperdine L. Rev. 515). And I also was intrigued by Robin’s showing how the specifically Foucauldian power-obsession could ultimately give rise to the neo-crit substantive world-view that would ‘amoralize’ the moral critique as itself a mere expression of power. I really liked all that.
But I think perhaps Robin underplays the lived-experience hemorrhage that was the collapse of the 60’s itself, the actual loss of confidence in our moral understanding that was originally an expression of the collective ontological force of the movement itself as a rising up of a group-in-fusion and a dawning of moral awareness grounded in the group’s felt confidence–the “moral glue” that gave way in the whole society, or rather across the movements and within the larger felt moral-support movement that unified us or ‘lifted’ us, like a wave. The return following Reagan’s election (and especially his second election) of ‘atomization’ and the concomitant loss of self that came with that, this return of collective doubt was the key factor to my mind that weakened our moral conviction at the level of our social being, ‘underneath’ the very ideological/cognitive processes that Robin describes as the erasure of the moral brief at the level of thought. In the face of the collective flight that Reagan’s emergence symbolized, a deep-seated fear reasserted itself, Fear of the Other who would no longer be There for me, for each person, as a confirmatory partner in a felt moral universe. By hemorrhaging away from each other, we cast each other back into solitude, with the full-time help and money of the forces of conservative social reaction (as well as the rise of the more centrist liberalism of the Clintons and the liberalized-by-the-60s professional class) to make sure we could no longer recognize each other as a truly transformative moral social force moving toward a radically transformed egalitarian and loving community. The formula for the moral weakening I’m describing was thus Ontological Doubt+Conservative Opposition and even Demonization+Cooptation into a non-transformative centrist-liberal imago of “society”.
Within CLS itself, this loss of confidence was manifested in a quite specific ‘sociology’. The weakening of the erotic-binding or connection-force or affirmation-force that had unified the various identity groups–the weakening of that lifting wave–increasingly led to a kind of identity-terror, the hostility among groups within CLS became predominant over the aspiration to moral transformation of law and society that originally gave birth to us (as Robin shows in her description of the Georgetown conference which I believe she helped to organize). This hemorrhage of the moral force of what had previously brought us all together and given birth to CLS in the first place and then also gave birth to the femcrits and Critical Race Theory was hardly unique to CLS. What took place within Critical Legal Studies was common across all the 60’s movements, and as we ebbed away from each other our moral thought lost (some of) its moral base in experience, a weakening that led the emerging, maturing professors and scholars in CLS—all up against a now post-60s relatively more conservative culture—to become uncertain about their formerly confident critique of alienation, of law as legitimation, and of the moral necessity of a fundamental transformation of social relations and of legal culture as well.
This general point about the historical basis of the weakening of the moral dimension of CLS thought points up an underlying ambiguity in Robin’s book about the relationship of being and thought in general, or more accurately of the relationship between social being and social thought.
For me, the moral dimension of legal discourse and of jurisprudence is inherently linked to the upsurge of mutual recognition and of moral awareness at the level of ‘social being’ that is carried forward by the process of what we call “movement”, the social manifestation of desire, the desire for a better, more affirming, more mutually recognizing social world. This movement is something that is lived out in direct relations between human beings; it is grasped in lived experience and then becomes something that is “thought” in, for example, “normative jurisprudence.” In this sense I would say Robin’s book is a legacy of feminism, which itself is a carrying forward of the liberatory memory of prior social movements and incarnations, and the ‘validity’ of the book is rooted in its implicit evocation of the memory of the lived experience that has made our moral nature known to us. By the same token, the ‘State” itself is not a fixed entity but a partial expression of this lived moral awareness, the moral consciousness prevailing within the group, within society, at a particular moment. When people are pooled up in what I once called “the pact of the withdrawn selves,” when they are withdrawn into themselves, ‘the State’ tends toward becoming a kind of collective otherness, an alien projection of a kind of false collective, and moral discourse becomes rudderless, as it largely is in the present moment in history, when rights with fearful content (the right to bear arms) are overwhelming the memory trace of rights with positive historical meaning (as when the right to equal protection, at a certain moment in the nineteenth century, meant the abolition of the dehumanization of other human beings). But there are moments when the reverse occurs and ‘the State’ becomes infused with the aspiration to authentic community, although in my view constrained by individualist paradigm that at one time had utopian content and now centuries later mainly seals us in separation, although that is another story.
To me this fluid nature of ‘the State’ addresses both the pro-legal-reform aspects of the femcrits and Critical Race Theory…the positive uses of the State whose ambiguity Robin discusses…and the more fear-based view of the State which the neo-crits in my opinion make something of a fetish of to the extent that they tend to locate Power everywhere and are too preoccupied with ferreting out its pernicious influence, in a way that makes them wary, afraid, of any binding moral discourse. Both of these conceptions of Law and the State can be true depending upon the underlying sense of connection or disconnection at the level of social being in the culture. Thus, the important link that needs to be illuminated and furthered in my view is the link between the development of the being of social movement as lived experience and the moral expression of that process in legal discourse. In this I’m wholeheartedly on Robin’s side, the side of moral vision and a morally informed legal discourse—or to use her phrase, the “moral brief” and the cumulative legacy of social movements that support it–but i would not install that moral vision and discourse in the projected entity called the State, but would want to specify, narratively, how it could be HERE, or linked to politics and lived experience.
I think what this means in today’s world is to ally the call for a moral jurisprudence with the developing spiritual-political movement that is trying to be born in many incarnations across the world, a post-Marxist vision of social transformation that affirms the spiritual dimension of human existence and of our connection to each other and roots moral claims in that intuited, invisible awareness of our longing to see and be seen by each other in a life-giving and affirming way. When Martin Luther King said, “Justice is Love correcting that which revolts against Love,” he was pre-figuring a jurisprudence grounded in a new recognition of our common humanity not as mere material beings with economic needs, but as spiritually connected social beings with needs for meaning, recognition, and love. I’d urge Robin to tie her call for a recovery of the moral dimension of law to this emergent spiritual force, and to help teach and inspire a new generation of scholars who can think from this kind of awareness rather than the rudderless, indeterminate analytics that is the dead end of a despiritualized liberal scholarship.