Legal Realism and CLS from an LPE Perspective

Abstract

What is the role of law in political economy? And what is the role of political economy in law? And in both cases, when we speak of “law” and “political economy,” are we speaking of academic disciplines or social realities? This tangle of questions constitutes the orienting research agenda of the emerging “law and political economy” movement in legal academia. Questions concerning not so much the interaction as the interrelation of law and political economy, with each of these understood simultaneously as fields of study and arenas of social life. And within that agenda the legacy of two prior efforts at grappling with these questions—Legal Realism and Critical Legal Studies (CLS)—looms large. This Article seeks to take stock of that legacy, and to advance a critique of central aspects of the received traditions of Realism and CLS, for the sake of developing new foundations for the analysis of both law and political economy.

 

The best way to understand Legal Realism and CLS, this Article contends, is along two dimensions: (1) the first concerns the critique of legal reasoning; (2) the second the role of law in society. After setting out the central Realist and CLS claims on both fronts, I offer critiques on each, that seek to push further in the same direction as the Realist/Crit views but in ways that ultimately repudiate the premises underlying these views. The main lines of Realism and CLS are, I contend, hostage to formalist premises in legal theory and liberal ones in social theory. This owes to the posture of internal critique that both adopted as their dominant strategy. Yet a central claim of the present Article is that the method of critique is always already a method of construction, both in the critique of law and the critique of political economy. To think the two may be separated is perhaps the fundamental flaw in the dominant strands of Legal Realism and CLS.

 

In that vein, the Article then offers a set of contrasting ideas for the development of legal, political, and social theory. In political economy, our critical and constructive aims should be less to point the hidden hand of the state in the market than to denaturalize the market itself, by showing it be a realm of irreducibly social relations. In law, our critical and constructive aims should be less to show the indeterminacy of law than to dereify it, by showing it to be a human artifact answering to human interests. Finally, in political theory, our critical and constructive aims should be less to show the internal contradictions of liberalism than its ideological blind spots and limitations, as revealed from the vantage point of an alternative political morality, that of democratic equality.

Keywords: legal realism, critical legal studies, law and political economy, legal theory, social theory, political theory