Law and Hierarchy

By Gabel, Peter | Tikkun, March/April 2004 | Go to article overview

Law and Hierarchy


Gabel, Peter, 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 hook 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. …

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