Recently, it came to light that Sen. Ted Cruz (R-TX) suggested that roughly a dozen professors at Harvard Law “would say they were Marxists who believed in the Communists overthrowing the United States government.” Through a spokesman, Cruz doubled down on these comments, saying “Senator Cruz’s substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of ‘critical legal studies’ — a school of thought explicitly derived from Marxism – and they far outnumbered Republicans.”
Not only is Cruz’s follow-up not a defense of his original statement, but it’s wrong in and of itself. Critical Legal Studies (CLS) isn’t “derived from Marxism;”although the movement was influenced by some Marxist ideas, it’s explicitly designed to be a critique of Marxist approaches to the law rather than an extension of them.
First, it’s important to understand how CLS thinkers actually define their own beliefs — remember, Cruz said that they themseves “would say” that they were revolutionary Marxists. ThinkProgress reached out to Georgetown University law professor Louis Michael Seidman, a leading “crit” (the term CLS exponents use for themselves). Here’s what Seidman told us:
I don’t have anything that’s not obvious to say about Cruz’s disgusting comments. A lot of early crit work was designed to refute Marxist theories of law, although some crits were also influenced by Marx. I know of no crit who thought of himself as a communist or who supported the regimes in the Soviet Union or China.
A 1992 article by crit Richard Michael Fischl backs up Seidman. As if anticipating Cruz, he wrote “Those of us associated with cls think it grossly unjust when our critics make an analytically identical move and argue that Stalinist totalitarianism is the ‘best worked-out, most consummated’ version of our position — in the face of the fact that a common intellectual thread that ties together virtually all cls work is its rejection of the authoritarianism and vulgar determinism suggested by the Stalinist label.”
So it’s clear enough: crits aren’t revolutionary Marxists. But Seidman’s suggestion that CLS “was designed to refute Marxist theories” implies that even Cruz’ spokesperson’s reformulation was inaccurate: far from being “explicitly derived” from Marxism, CLS was explicitly seen as a critique of Marxist thought. So not only did Cruz get it wrong, but in a certain sense he got it backwards.
Explaining why requires an account of CLS’ basic tenets and its connection to Marxism. As Harvard Law’s Mark Tushnet puts it, crits generally accept three broad ideas: “that [the law] is in some interesting sense indeterminate; that it can be understood in some interesting way by paying attention to the context in which legal decisions are made; and that in some interesting sense law is politics.” The first idea, the notion that “the law is indeterminate,” can basically be understood as the idea that the law is not like a game with clear rules: there’s no objective system judges use to deduce decisions from, nor is there a single set of values that underpin a legal code that guide judges in the right direction. Rather, law is particular decisions made by particular judges in particular cases, for reasons that aren’t reducible simply to a neutral application of a universally accepted set of rules. When Supreme Court justices disagree, there isn’t an objectively “right” or “wrong” decision on the merits. There’s simply the views that won and the views that didn’t.
Tushnet’s second and third principles explain what, then, judges are doing when making decisions if not following objective rules. Legal decisions, for crits, are much better understood as the result of political struggles between different groups than the neutral application of legal principle. The political values of the judges, the interest groups filing briefs, and the groups bankrolling lawyers are for crits much more important to the outcome of any case than any formal system of law. Law, then, is best understood as an important venue for political struggle rather than an independent check on it.
This broader CLS argument is a sharp break with Marxist legal theory, even though some crits were inspired in part by their interpretation of some Marxist ideas. Marxists understand the law, in one way or another, to be directly determined by the economic structure of society: legal decisions were made by references to the class interest of the bourgeoisie. CLS’ emphasis on the contextual and political character of legal decisions was a direct assault on this idea. Hence why crits like Tushnet conclude that “A Marxist theory of the legal form may be impossible;” it simply makes no sense on CLS premises. Likewise, Duncan Kennedy (another Harvard crit) wrote that “the indeterminacy of the internal criteria of legality is great enough as a matter of fact so that…we must regard [a certain variant of Marxist legal theory] as hopelessly imprecise.”
It is true that crits tend to have more left-wing political commitments than Ted Cruz or even most liberals. But those generally work at the level of principle (“we need a more radically equal distribution of wealth”) and don’t really translate into specific political commitments (“we should replace the capitalist system with socialism or Communism” or “we should have a single-payer health care system”). That’s because the theory is intentionally designed only to do critical analysis of the law, not to point to any ways of fixing the problems they identify. In his angry essay entitled “The Question That Killed CLS,” Fischl labels the “what would you do?” question a fatal one for CLS, because the theory simply doesn’t have an answer. He thinks that’s why some people attempt to position them as secret communists; in his words, critics believe “it does have a ‘vision’ or a program, and that the refusal of its adherents to disclose it strongly suggests that they have something truly awful to hide.” Because they’re left-of-center, the thinking goes, that awful hidden vision must be revolutionary Marxism.
What Cruz’s seemingly offhand remark represents is a particularly crude politicization of that line of thinking. Harvard Law’s alleged Marxist influence on Obama isn’t the first dark disclosure Cruz claims to have found; during the confirmation hearings for Chuck Hagel to become Secretary of Defense, he implied Hagel was taking money from foreign powers and accused him of having some connection to a foreign policy analyst controversial for harsh critiques of Israel and defenses of the Tienanmen Square crackdown.