abstract. It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random—in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law—parameters we should reclaim critical legal studies for helping establish—apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political-economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today.

author. Chancellor Kent Professor of Law, Yale Law School; Professor of History, Yale University. Thanks to Justin Desautels-Stein, Ioannis Kampourakis, Amy Kapczynski, Caroline Parker, Akbar Rasulov, Noah Rosenblum, Arun Sharma, Ntina Tzouvala, and John Witt for help. I am grateful, too, to those who have publicly responded to the draft of this piece, and to the Yale Law Journal editors, especially Ding Yuan and Kevin A. Zhang. This Essay is dedicated to Roberto Mangabeira Unger on passing his fiftieth year of teaching.

Introduction

Almost as much as ever, the law is bound up with domination and oppression. As usual, mainstream legal thought remains “one more variant of the perennial effort to restate power and preconception as right.”1 Indeed, neoformalist theory in both public and private law has been ascendant in recent decades, which would make legal realists—let alone those legal radicals who claimed their mantle—blanch.2 At the same time, it is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools between the last such opportunity and now. Most notably, a law-and-political-economy movement has emerged, signaling new organizational spirit on the left, along with new practical and theoretical possibilities.3 This Essay assesses the moment and argues for exploiting an option that risks being lost in early stages of radical discussion about what kind of legal theory to construct.

Scholars and students today are newly interested in how legal regimes reflect and shape social and state power, and in intersecting subordination based on gender, race, sexual orientation, disability, or indigeneity. And inspiringly and rightly so. The nascent law-and-political-economy movement is the most striking evidence of this trend, in part because—unlike some prior leftist or progressive frameworks—it has been alive from the first to the intersectional and multiform character of domination. But such a movement must be theorized persuasively. In particular, it needs to build a new insistence on the subjugating function of law while incorporating insights from earlier traditions—especially the insight that law is itself an element of social order and does not always function in simple ways, given that it is open to interpretative revision.

To that end, this Essay argues for a radical social theory of how law works, taking up where the critical legal studies movement left off. Law is not autonomous and therefore always needs to be situated within the social orders that give it form, meaning, and purpose. Most of the time, and in some way or other, law is involved in the making and maintenance—and, occasionally, remaking and renovation—of social order, albeit never on its own. This view of law—what the Essay calls “functionalism”—conceptualizes and criticizes law in relation to the (generally oppressive) social functions it serves.

But if a radical theory must emphasize that legal orders and rules matter because they institute, legitimate, and reproduce domination and oppression, it must also address the fact that such determination works compatibly with flexibility in interpreting law and plurality in reaching outcomes. Law remains a technology of rule of some over others, but one that is rarely simple and almost never unerring. This insight of critical legal studies—that law’s determination is compatible with plurality of outcomes—is known as “functional underdeterminacy.”4 Likewise, law’s performance of social functions coexists with prevalent underdeterminacy in legal meaning—what I will call “interpretive underdeterminacy.”5 The law allows different readings of constitutions, statutes, and customs. Such readings are manifest in court precedents from the past and historical narratives in the present that choose one meaning over others, not to mention in advocacy strategies that promote some understandings as correct or preferable as a means of achieving desired future outcomes.

The critical legal studies movement sought to assess how the generally troubling purposes that law serves are achieved through underdeterminate law. Even if some leaders of the movement drove too far either in emphasizing determination and subjugation or in highlighting complication and flexibility, the main reason to reconstruct critical legal studies is to show that it is simply not necessary to choose between these two poles. A vision of law emphasizing prevalent determination and determinacy must still make room for residual flexibility and plurality. This conclusion remains momentous for the law-and-political-economy movement and other parallel (including self-styled Marxist) ventures. And today, radical legal theory is being misled from the need to strike the right balance between such options in understanding specific regimes of domination and oppression. The mistake haunting legal theory now is not “false necessity.”6 It is false dichotomy.

Striking the balance is crucial for two urgent reasons. One is to assess just how the domination characteristic of modern political economy—the institutionalization, legitimation, and reproduction of regimes of production, exchange, and distribution—works. The law-and-political-economy movement sees necessity, but it does not yet grasp what legal theory already recognizes—that necessity works in mysterious ways. The other reason to strike the balance, which is even more important, follows directly from the first. Embracing underdeterminacy allows for the recovery of any pathways for change that exist in legally institutionalized and legitimated domination—and the recognition of our agency to pursue them. No credible theory of law could omit the situated freedom of agents to alter the terms of their domination or even, in rare instances, to lift it.

Intellectually, the world of legal theory is changing very quickly. In just a few years, a space has opened for constructing a radical challenge, one that did not seem available before.7 The law-and-political-economy movement’s emergence has already changed a great deal in the intellectual and practical life of law schools, forming groups at numerous institutions in the United States and beyond and influencing daily priorities through its website.8 Thanks to its success, there is also space for reconstructing and remembering critical legal studies, which died as a movement some decades ago but offers adequate and so far unsurpassed starting points for our moment—or so this Essay suggests as its central argument.9 Upon examination, even emergent currents of Marxism in legal scholarship (and the law-and-political-economy movement itself) offer a call to reconstruct the basic project of critical legal studies, not to reject it.

In advancing these perspectives, this Essay urges the law-and-political-economy movement, which has exploded today, to become much less noncommittal theoretically than it has been so far.10 It also responds to recent impulses from that larger movement11 and even more from a narrower but overlapping set of Marxist theorists of law12 to junk critical legal studies. For certain, any reclamation of that movement has to be discriminating. Nothing turns on what radicals label their framework or the historical propriety of their claims about the intellectual past; what matters is the credibility of their theory. But had critical legal studies never existed, it would have to be invented along the lines sketched here. And if I emphasize historic contributions to legal theory and what to take and leave from our heritage, it is not because there is something perfect to revive, but rather because there is no reason to reinvent the wheel, spurning resources useful for our purposes now.

Finally, as the contemporary discomfort with critical legal studies shows, legal theory has some degree of historical self-consciousness, which demands some sense of the relation of any current venture to what has come before. Not least, critical legal studies was the first radical legal theory that placed the conceptualization of domination and the imperative of its unmaking center stage—where both ought to remain today. The essential starting point critical legal studies affords has to be separated from the irrelevant trivia of its articulation and reception, including its own collapse and fissuring as a movement anathematized and banished by conventional legal academics in its time.13 A review of the movement’s contributions is far from being an antiquarian indulgence; it is as current as anything else in legal scholarship, at least for scholars hoping to build a radical theory today.

This Essay begins in Part I by sketching some basic features of a social theory of law as the indispensable framework for any radical theory now or later. High altitude and synthetic, this Part suggests that the central premises of the tradition of social theory can do a great deal of work in setting out a vision for legal theory, one that critical legal studies radicalized.

The Essay then turns in Part II to rebut suggestions that critical legal studies did or must unjustifiably privilege the aleatory, contingent, and indeterminate, as if they defined law exclusively. These suggestions have been made in order to recenter the necessitarian character of past and present legal orders, and usefully so—but, as I hope to show, mainly to restore critical legal studies, and not to transcend its aspirations. A survey of critical legal studies documents that one of its leaders committed to an excessively deterministic account of law and determinate possibilities of legal meaning, while another left the impression of a theory of “indeterminacy” that has dogged the movement’s reputation. Meanwhile, the most promising option its members foregrounded—which sought balance—has been lost to memory.

The Essay then argues in Part III that the law-and-political-economy movement in current scholarship cannot avoid the search for balance that critical legal studies is reconstructed here as achieving, or at least seeking. This is true—perhaps even more true—when the law-and-political-economy movement integrates the pathbreaking insights of movements such as critical race theory and feminist legal theory, and insists on gendered, racialized, and otherwise intersectional accounts of production, distribution, or exchange. No applicable forms of domination, like capitalism or white supremacy, are identically self-repeating no matter what. Instead, they are instituted through constant legal reinterpretation of underdeterminate norms.

Comparably, Part IV aims to show how contemporary Marxists have learned to occupy the middle ground recommended here, to the point that Marxism itself now overlaps substantially with a reconstructed critical legal studies. Though never an explicit presence in legal theory in the United States—not even in critical legal studies—Marxism has returned to global legal theory, often in an evolved form. Current Marxist approaches to capitalist law are intended to be consistent with functional and interpretive underdeterminacy, and thus with critical legal studies rightly understood.