Beyond the Law

Article excerpt

Raymond Aron, the French philosopher, once said that democracy's problem is that democratic regimes tend to undermine themselves unless they can overcome extremism. So the first duty of a democrat is to protect the democratic turf from being poisoned by extremism. To do that we must pay heed to extremists, located for the most part in our universities, especially in the law schools, and examine what it is they are preaching.

For some years now, law schools have been home to a form of sectarianism known as "Critical Legal Studies." The focus of this Marxist-inspired dogma is that the rule of law by which democracies live is really a bourgeois sham so structured as to perpetuate capitalist domination. Today the dogma has become a vehicle for "critical-race studies" driven by a new generation of minority and female professors who have targeted Anglo-American law for subversion. For them the rule of law is befouled by endemic racism and sexism. The evidence for this indictment is to be found in the current issue of Commentary magazine in a review by Heather Mac Donald of a just published book, "Beyond All Reason: The Radical Assault on Truth in American Law" (Oxford). The authors are Daniel A. Farber and Suzanna Sherry.

"The prime target of the critics," writes Ms. Mac Donald, ". . . is the notion that law's defining virtue is rational argument and decision-making. . .For the race-and-gender legal theorists, rationality is a mere tool of white, male oppression, designed to silence and subordinate minorities and women. Rationality, on this view, provides the patina of legitimacy that `patriarchy' needs in order to maintain its rule."

Step number one for the race-and-gender legal theorists in undermining this "white male oppression," writes Ms. Mac Donald, is to persuade editors of law journals "to reject traditional case analysis and instead start telling `stories. …