Introduction: History, Ideology, and the Crisis of Legal Critique

Abstract

This symposium occupies the intersection of recent developments in the vicissitudes of critique. One is the ongoing discussion across the humanistic disciplines about whether critique—the standard mode of humanistic argument for decades—has had its day, or is in need of critique itself. And, more particularly, the symposium asks: how has this discussion been received in the domain of critical legal theory, if it has been received at all? A prominent thread in the pages that follow is a renewed question about the viability of Marxism—perhaps the ur-version of critique.

Ironically, Marxism has had a complex or even distant relation to the dominant modes of critique in recent decades, both inside and outside the legal academy. With another wave of interest in the 1960s, the Marxist theories that were emphasized as time passed tended to represent Marxism’s culturalist forms (pre-eminently the work of the Frankfurt School). But all varieties of Marxism suffered in relation to post-Marxist social thought, including various forms of poststructuralism. Yet especially since the economic crisis of 2008, many believe Marxism needs to come back—and in its economistic and even materialist forms—for legal critique to be “truly” possible.

The contemporary manifestation of the “critique of critique” dates at least as far back as Bruno Latour’s question in 2004: “Why has critique run out of steam?”1 Since then, a number of voices among literary critics—Rita Felski’s most notably—have gone further, flirting with the resuscitation of an appreciative mode of engagement with even deeply compromised works from the past. This approach is grounded on the notion that treating canonical works as irredeemable loses touch with the original purposes of literary study, all while forsaking constructive impulses and normative grounding. For some, that concern courts an even worse risk of restoring a status quo ante of belletristic complacency. But there is no doubt that— especially in an age of declining interest in critical theory—such arguments have had a powerful effect. The positions pro and con are, of course, only partly applicable to legal scholarship. It had never been in the business of a kind of pre-critical model of scholarship grooming its readers to appreciate law in the same way aesthetic discourses did. But legal scholarship certainly had its canon of cases, and its doctrinal and historical work could imaginably return to fashion if it were decided that legal critique has had its day.