A Menace to Society - Helda - Helsinki.fi
A Menace to Society - Helda - Helsinki.fi
A Menace to Society - Helda - Helsinki.fi
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Faculty of Law<br />
University of <strong>Helsinki</strong><br />
A <strong>Menace</strong> <strong>to</strong> <strong>Society</strong><br />
Radicalism and Legal Scholarship in the United States, Scandinavia, and<br />
Finland, 1965─1980<br />
Juhana Mikael Salojärvi<br />
ACADEMIC DISSERTATION<br />
To be presented, with the permission of the Faculty of Law of the University of <strong>Helsinki</strong>,<br />
for public examination in lecture room P III, Porthania,<br />
on the 23th November 2013, at 10 am.<br />
<strong>Helsinki</strong> 2013
Cover pho<strong>to</strong> by Niko Kilpi<br />
Cover design by Juhana Salojärvi<br />
ISBN 978-952-10-9328-9 (pbk.)<br />
ISBN 978-952-10-9329-6 (PDF)<br />
(ethesis.helsinki.<strong>fi</strong>)<br />
Unigra<strong>fi</strong>a<br />
<strong>Helsinki</strong> 2013
meanwhile, every 2 or 3 years, somebody in the academy,<br />
wanting <strong>to</strong> keep his place in the university structure<br />
(and if you think Vietnam is hell you ought <strong>to</strong> see what goes on between those<br />
so-called brains in battles of intrigue and power within their own little cellblocks)<br />
brings out the same old collection of glass and gutless poetry and labels it THE<br />
NEW POETRY or THE NEW NEW POETRY but it’s still the same marked deck<br />
Charles Bukowski
This book is dedicated <strong>to</strong> nobody
Preface<br />
Something has changed. The building at the other side of my room stares at me through<br />
my window as it has for the past three years, but something is different. It might be that<br />
the building is the same, but my perception of it has changed. Maybe I have changed.<br />
The past four years that I have spent writing this thesis, the <strong>fi</strong>rst one just around the corner<br />
and the last three in this room, have been truly remarkable in my life. It is strange <strong>to</strong><br />
look back now and think what I was back then and what I have become since. Many<br />
things have changed, indeed. One of the most obvious changes, however, is that this<br />
book is <strong>fi</strong>nally <strong>fi</strong>nished, although it turned out <strong>to</strong> be a very different book from the one I<br />
started out <strong>to</strong> write.<br />
While I studied law at the University of <strong>Helsinki</strong>, I dreamt about writing a doc<strong>to</strong>ral<br />
thesis one day, but I was not quite sure whether I believed in that dream. Once I graduated,<br />
however, I think that <strong>to</strong> continue <strong>to</strong> a doc<strong>to</strong>rate was the only possible choice for<br />
me, since I really could not see myself as a lawyer back then. And since I really enjoyed<br />
writing my master’s thesis, <strong>to</strong> do a more serious piece of research seemed like a great<br />
idea. So I began my journey. Now that journey is <strong>fi</strong>nished. The making of his book has<br />
been an educational experience which has left a permanent mark on me. During the<br />
years that have passed since I graduated and made the decision <strong>to</strong> begin this research, I<br />
have learned a lot about life, not simply about doing research and writing a book. My<br />
unde<strong>fi</strong>ned feelings, the failures and misfortunes of the past, and the broken dreams and<br />
failed expectations, all intertwine as I wistfully look back <strong>to</strong> that journey. I began this<br />
book with youthful enthusiasm and naivety, and ended up with a far more modest book<br />
than originally intended. In this case, however, I think that the journey was more important<br />
than the destination.<br />
Although the writing of this book has mostly been solitary work, many people<br />
have helped me, providing support and guidance during the course of the writing, and <strong>to</strong><br />
them I owe a great debt of gratitude. First and foremost I would like <strong>to</strong> thank my supervisor,<br />
Professor Heikki Pihlajamäki, who has been truly a splendid men<strong>to</strong>r and advisor,<br />
and without whom this project would never have begun. I would also like <strong>to</strong> express my<br />
greatest gratitude <strong>to</strong> Professor Jukka Kekkonen, who <strong>fi</strong>rst gave me the inspiration <strong>to</strong><br />
begin my doc<strong>to</strong>ral work, and who has since provided support and useful advice as well<br />
as critical comments. I would also especially like <strong>to</strong> thank my pre-examiners, Professor<br />
Emeritus Kjell Åke Modéer and Dr. Kaius Tuori, the <strong>fi</strong>rst of whom has also agreed <strong>to</strong><br />
act as my opponent. I also owe very special thanks <strong>to</strong> Dr. Mia Korpiola, whose critical<br />
comments in the <strong>fi</strong>nal phase of my work proved very helpful, saving my manuscript<br />
from many errors. I would also like <strong>to</strong> thank my colleagues and co-workers at the legal<br />
his<strong>to</strong>ry department of the University of <strong>Helsinki</strong>, Markus Kari, Suvi Kokkonen, Raija-<br />
Liisa Komulainen, Dr. Toomas Kotkas, Toni Malminen, Aleksi Rantanen, Jussi Sallila,<br />
Dr. Jukka Siro, Marianne Vasara-Aal<strong>to</strong>nen, and Dr. Iisa Vepsä, who all have given useful<br />
advice and made the work more pleasant. Furthermore, I am very grateful <strong>to</strong> Profes-
sors Niklas Bruun, Lars D. Eriksson, Antti Kivivuori, and Kaarlo Tuori, scholars who<br />
actually contributed <strong>to</strong> the critical scholarship in the 1960s and 1970s and thus were<br />
subjects of my study, but who nonetheless were kind enough <strong>to</strong> comment on my manuscript.<br />
I am also greatly indebted <strong>to</strong> Dr. Roderick McConchie for revising the English of<br />
my manuscript. This book is now much better than what it would have been without the<br />
help of these and many other people. All the remaining mistakes and errors in the book<br />
are entirely mine, of course.<br />
I would like <strong>to</strong> thank the Research Foundation of the University of <strong>Helsinki</strong>, the<br />
Finnish Lawyers’ <strong>Society</strong>, and the Aili & Brynolf Honkasalo Foundation for providing<br />
<strong>fi</strong>nancial support and thus making this research possible.<br />
There are also many people outside the scholarly community who have supported<br />
me over the years. Therefore, I would like <strong>to</strong> thank my family and friends, Niko Kilpi<br />
for providing the cover picture, as well as the people at the Artlab Studios. I have unfortunately<br />
been <strong>to</strong>o devoted <strong>to</strong> my work <strong>to</strong> show my gratitude and appreciation in the way<br />
I probably should have. Nevertheless, a great Cheers <strong>to</strong> you all!<br />
Last, but most de<strong>fi</strong>nitely not least, I will thank my wife, Taru Takamaa, who is the<br />
most important person in my life. Since I met her, she has given my life a whole new<br />
meaning, making me realize the beauty of existence, as well as the fact that life really is<br />
easier <strong>to</strong> bear when it can be shared with someone. I am not sure where I would be<br />
without her. All I am and have is because of her, and <strong>to</strong> her I owe everything; my life<br />
and love included. I know I should have dedicated this book <strong>to</strong> you, Taru, had I not<br />
been obsessed with my willful decision <strong>to</strong> not <strong>to</strong> dedicate it <strong>to</strong> anybody. I hope you’ll<br />
understand.<br />
<strong>Helsinki</strong>, Oc<strong>to</strong>ber 2013<br />
Juhana Mikael Salojärvi
Table of Contents<br />
Preface<br />
Table of Contents<br />
vii<br />
ix<br />
I Introduction 1<br />
1 Jurisprudence against the grain: The focus of the study 1<br />
2 “We are people of this generation”: The sixties and the law 2<br />
3 De<strong>fi</strong>ning “critical legal scholarship”: Subject and sources 7<br />
4 The pursuit of legal his<strong>to</strong>ry 12<br />
5 Critical legal scholarship of the 1960s and 1970s in legal his<strong>to</strong>ry 17<br />
6 The structure of the study 22<br />
II Background 25<br />
1 Introduction 25<br />
2 A his<strong>to</strong>ry of legal thought in the United States 26<br />
3 An outline of a his<strong>to</strong>ry of Scandinavian and Finnish legal thought 30<br />
4 The World the War made 35<br />
4.1 The legacy of the Second World War 35<br />
4.2 Changes in scholarship 36<br />
4.3 The rise of the New Left: Intellectual and social criticism 40<br />
4.4 1968: “The Year that Rocked the World” 42<br />
III Alternative and critical legal scholarship in the United States, 1965–1980 45<br />
1 American society in the 1960s and 1970s 45<br />
2 Alternative legal scholarship and critical lawyers of the 1960s 51<br />
2.1 Introduction 51<br />
2.2 Neutral principles and the dynamics of legal reasoning: A prelude <strong>to</strong> criticism 52<br />
2.3 Political jurisprudence 56<br />
2.4 The Law and Development movement: A cultural approach <strong>to</strong> law 64<br />
2.5 The Law and <strong>Society</strong> movement: A social approach <strong>to</strong> law 67<br />
2.6 Critical perspectives on law in society 73<br />
2.7 Concluding remarks 77<br />
3 Critique radicalized: The evolution of CLS 78<br />
3.1 The origins of CLS: From sociological jurisprudence <strong>to</strong> critical legal scholarship 78<br />
3.1.1 Introduction 78<br />
3.1.2 Radicalism and the law school: The evolution of critical thought 79<br />
3.1.3 Crisis meets jurisprudence: Fundamental criticism of legal thought 84<br />
3.1.4 Critical perspectives on legal his<strong>to</strong>ry 99<br />
3.1.5 Constitutional law and criticism 103<br />
3.1.6 Critical scholarship on criminal law 108<br />
3.2 The creation of CLS, 1977–1980 117<br />
3.2.1 The evolution of critical thought: The Conference on Critical Legal<br />
Studies, 1977 117
3.2.2 Critical legal scholarship coming of age: CLS in the late 1970s 120<br />
3.2.3 The emergence of the Critical Race Theory 135<br />
3.2.4 The rise of feminist jurisprudence 138<br />
4 His<strong>to</strong>rical perspectives on CLS 143<br />
5 Conclusions 152<br />
5.1 CLS in Context 152<br />
5.2 A <strong>fi</strong>nal remark: CLS in the 1980s 154<br />
IV Alternative and critical legal scholarship in Scandinavia, 1965–1980 157<br />
1 Introduction 157<br />
1.1 Scandinavia as a legal area 157<br />
1.2 Scandinavia and the 1960s 159<br />
2 The roots of critical legal scholarship, 1965–1973 164<br />
2.1 Introduction 164<br />
2.2 The rise of sociology of law in Scandinavia 165<br />
2.3 Criticism of legal scholarship in the late 1960s and early 1970s 169<br />
2.4 Alternative legal scholarship in the early 1970s 178<br />
3 The origins of Scandinavian Marxist legal scholarship, 1972–1976 182<br />
4 Changes in criminal law scholarship, 1965─1979 195<br />
4.1 Criminal law and alternative legal scholarship 195<br />
4.2 Criminal law scholarship and criminal policy 201<br />
4.3 Criticism of criminal law in perspective 211<br />
4.4 Concluding remarks 213<br />
5 Alternative views on constitutional law, 1965─1979 215<br />
6 Alternative and critical legal scholarship in the late 1970s 222<br />
6.1 Development of the critical mood 222<br />
6.2 The legal profession and the critical mood 224<br />
6.3 Perspectives on the rights of the citizen 227<br />
6.4 Critical gender studies in law 230<br />
6.5 General problems of jurisprudence 232<br />
6.6 The rules-principles distinction 237<br />
6.7 Marxist legal scholarship in the late 1970s 240<br />
7 Conclusions 245<br />
7.1 A his<strong>to</strong>rical perspective on critical legal scholarship 245<br />
7.2 Critical legal scholarship and the 1980s 249<br />
V Alternative and critical legal scholarship in Finland, 1965─1980 251<br />
1 Finland and the 1960s: The great structural change in society 251<br />
2 Criticism of legal scholarship 254<br />
2.1 A prelude <strong>to</strong> the problems of legal scholarship in the 1960s 254<br />
2.2 The rise of critical legal scholarship in the late 1960s 257<br />
2.3 The elaboration of critical legal thought, 1970─1976 267<br />
3 Criticism of constitutional law, 1967─1978 283<br />
3.1 Constitutional law and scholarship 283<br />
3.2 Criticism of the judiciary 294
3.3 Concluding remarks 299<br />
4 Alternative criminal law scholarship, 1965─1979 300<br />
5 Alternative legal scholarship on private law in the 1970s 314<br />
5.1 General remarks 314<br />
5.2 Labor law 315<br />
5.3 Family law 318<br />
5.4 Contract law 320<br />
6 Criticism and reform of legal education, 1968─1979 324<br />
7 Alternative legal scholarship at the end of the 1970s: From radical criticism <strong>to</strong><br />
alternative analysis of law 332<br />
8 Conclusions 339<br />
8.1 A his<strong>to</strong>rical perspective on critical legal scholarship 339<br />
8.2 The 1980s and critical legal scholarship 343<br />
VI Conclusions 345<br />
1 A theoretical perspective on critical legal scholarship 345<br />
2 Comparative perspectives on the United States, Scandinavia, and Finland 347<br />
3 Scandinavia v. Finland 352<br />
4 Critical legal scholarship as a his<strong>to</strong>rical phenomenon 354<br />
Bibliography 361<br />
Index 429
I Introduction<br />
1 Jurisprudence against the grain: The focus of the study<br />
Legal scholarship investigates law and its functions in society. Law creates the state,<br />
settles conflicts between individuals and between individuals and the state, provides a<br />
structural framework for public and private institutions and organizations, and pronounces<br />
what is permitted, required, and denied in society. There are many forms of<br />
legal scholarship, but “conventional research is primarily, though not exclusively, focused<br />
on doctrine ─ cases, statutes, and treatises.” “Doctrinal analysis…is undertaken <strong>to</strong><br />
establish a particular interpretation of case law on the basis of arguments and authority<br />
which would be acceptable <strong>to</strong> an appellate judge.” 1 In the Continental European sense,<br />
doctrinal analysis produces information about and systematizes the law, 2 which, although<br />
different on the surface, is basically the same as the previous de<strong>fi</strong>nition. Every<br />
once in a while, however, movements appear which criticize the traditional legal scholarship<br />
and try <strong>to</strong> trash both traditional scholarship and its object, the law. The criticism<br />
can be so radical that the most traditional scholar may feel that “the nihilist who must<br />
profess that legal principle does not matter has an ethical duty <strong>to</strong> depart the law<br />
school.” 3 This study explores one of these occasions.<br />
The 1960s and 1970s witnessed a major critical attack on law and legal scholarship<br />
in various countries. The focus of this study is the critical legal scholarship of the<br />
1960s and 1970s in the United States and the Nordic Countries. The countries considered<br />
are the United States and Finland individually, and the Scandinavian countries,<br />
Denmark, Norway, and Sweden collectively. Finland has been chosen for various reasons.<br />
First of all, it is my home country. In addition, the his<strong>to</strong>ry of the Finnish jurisprudence<br />
of the latter half of the twentieth century is still an unexamined <strong>fi</strong>eld and thus in<br />
need of his<strong>to</strong>rical research. Furthermore, critical legal scholarship is a particular <strong>to</strong>pic<br />
that needs a thorough examination because it can be considered as a truly signi<strong>fi</strong>cant<br />
epoch in the development of modern legal scholarship. The United States has been chosen<br />
because of its global signi<strong>fi</strong>cance and because it provides an excellent point of comparison.<br />
Scandinavia, which will not be dealt with in such detail as Finland and the<br />
United States, follows naturally because it helps <strong>to</strong> understand Finland in context and<br />
1 Frank Munger and Carroll Seron, Critical Legal Studies versus Critical Legal Theory: A Comment on<br />
Method, 6 Law & Policy 257, 260 (1984).<br />
2 Aulis Aarnio, Essays on the Doctrinal Studies of Law (Dordrecht: Springer 2011), 19. Aarnio uses the<br />
expression “doctrinal studies”. Here the terms “doctrinal studies” and “doctrinal analysis” are used as<br />
synonyms.<br />
3 Paul D. Carring<strong>to</strong>n, Of Law and the River, 34 Journal of Legal Education 222, 227 (1984).<br />
1
ecause of the need <strong>to</strong> explore the development of the critical legal scholarship of the<br />
1960s and 1970s there as well. The time frame is from the mid-1960s <strong>to</strong> the end of the<br />
1970s because these were the pivotal years in the emergence of the critical scholarship.<br />
The study has three main purposes. First, I will reconstruct the his<strong>to</strong>rical development<br />
of critical legal scholarship. I will analyze how it emanated within the social and<br />
scienti<strong>fi</strong>c circumstances and how it responded <strong>to</strong> them. The purpose is <strong>to</strong> understand<br />
critical legal scholarship in its context, as well as <strong>to</strong> analyze the reasons for its emergence.<br />
Because this is a study of legal his<strong>to</strong>ry, not of legal theory, I will concentrate on<br />
the his<strong>to</strong>rical development of critical scholarship and not examine its theoretical merits.<br />
In addition, because this is a study of academic legal scholarship, the changes in law are<br />
not considered. Only regarding Finland will I use a couple of noteworthy law reforms,<br />
the reform of the Constitution and the criminal law, as examples of the dimensions of<br />
critical legal scholarship and its impact on law. Second, I shall compare the movements<br />
of the various countries and analyze the fac<strong>to</strong>rs explaining the differences and similarities<br />
between them. The comparative analysis is rather general and abstract, but it will<br />
help us <strong>to</strong> understand the dimensions of critical legal scholarship. Relating <strong>to</strong> the two<br />
previous questions, I will investigate the main influences and the substance of critical<br />
scholarship in order <strong>to</strong> understand its purposes and <strong>to</strong> analyze the possible motives for<br />
the critical literature. I will not analyze all of the literature the critical scholars referred<br />
<strong>to</strong> in detail because the basis of their influence is vast and diversi<strong>fi</strong>ed. Rather, I will examine<br />
at a very general level the most important influences in order <strong>to</strong> clarify the development<br />
and the substance of critical scholarship. The third purpose and the overall goal<br />
relating <strong>to</strong> my two questions is <strong>to</strong> understand the “essence” of the critical legal scholarship<br />
of the 1960s and 1970s. The essence of this critical scholarship is crucial in understanding<br />
it as a his<strong>to</strong>rical phenomenon and in relating the three different areas <strong>to</strong> each<br />
other.<br />
2 “We are people of this generation”: The sixties and the law<br />
“We are people of this generation, bred in at least modest comfort, housed now in universities,<br />
looking uncomfortably <strong>to</strong> the world we inherit.” 4 Thus wrote the Students for<br />
a Democratic <strong>Society</strong> in their famous statement at Port Huron, Michigan, in June 1962.<br />
The world had recovered from the atrocities of the Second World War, and the 1960s<br />
was about <strong>to</strong> become the culmination of widespread social protests and a decade of turbulence.<br />
The decade marked the formation of the New Left, a movement of young, often<br />
academic people against the conventional values and institutions of society and<br />
struggling for a new and better u<strong>to</strong>pian society, as well as the culmination of a counterculture<br />
which also abandoned the traditional life-style and struggled against the conven-<br />
4<br />
Port Huron Statement of the Students for a Democratic <strong>Society</strong>, 1962.<br />
(last visited 23.9.2011).<br />
2
tional social mores. 5 The turbulence of the 1960s developed in<strong>to</strong> a student revolt on a<br />
previously unseen scale, when students protested violently against the authorities, 6 and<br />
the most turbulent year, 1968, came <strong>to</strong> be remembered as the “year that rocked the<br />
world.” 7 The 1960s was also a time of various civil rights movements and social reforms.<br />
8 The protest movement in the universities was not simply a movement of students<br />
revolting, but scholars also protesting against their tradition. Legal scholarship<br />
also faced an attack under which the authority of tradition was disputed and rejected.<br />
The roots of modern legal scholarship both in the United States and Scandinavia<br />
are in the late nineteenth-century conceptualism which regarded law as science, stressing<br />
the fact that law can be conceptualized in abstract concepts from which solutions<br />
can be derived. 9 The conceptual tradition was contested by various sociological traditions<br />
around the turn of the century, and legal realism prospered within the universities<br />
in the 1920s and 1930s. Realism criticized conceptualism’s metaphysical nature and its<br />
assertion that legal reasoning could be unders<strong>to</strong>od in abstract and scienti<strong>fi</strong>c terms. Realism<br />
saw law as a man-made, positivist enterprise, and therefore legal scholarship ought<br />
<strong>to</strong> be social engineering exploring the social functions of law. The Second World War,<br />
however, brought changes, and Realism lost much of its authority. The realist lessons<br />
were domesticated and integrated in<strong>to</strong> postwar legal scholarship, which hence was not<br />
conceptualist in the nineteenth-century sense, but it was neither realist in the extreme<br />
sense. 10<br />
The roots of modern Finnish legal scholarship are also in nineteenth-century German<br />
conceptualism, but realism did not make signi<strong>fi</strong>cant headway in Finland in the<br />
5 Conventional s<strong>to</strong>ries of the emergence of the American New Left include Maurice Isserman, “If I had a<br />
Hammer…”: The Death of the Old Left and the Birth of the New Left (New York: Basic Books 1987);<br />
James Miller, “Democracy is in the Streets”: From Port Huron <strong>to</strong> the Siege of Chicago (New York: Simon<br />
and Schuster 1987). For a revision of the movement, see John McMillian and Paul Buhle (eds.), The<br />
New Left Revisited (Philadelphia: Temple University Press 2003). On the New Left in Denmark and<br />
Sweden, see, e.g., Thomas Ekman Jørgensen, Transformations and Crises: The Left and the Nation in<br />
Denmark and Sweden, 1956–1980 (New York: Bergham Books 2008). On the Finnish new left, see, e.g.,<br />
Marja Tuominen, “Me kaikki ollaan sotilaitten lapsia”: Sukupolvihegemonian kriisi 1960-luvun suomalaisessa<br />
kulttuurissa (<strong>Helsinki</strong>: Tammi 1997).<br />
6 On the student protests, see Cyril Levitt, Children of Privilege: Student Revolts in the Sixties (Toron<strong>to</strong>:<br />
University of Toron<strong>to</strong> Press 1984); Sven-Olof Josefsson, Året var 1968: Universitetskris och studentrevolt<br />
i S<strong>to</strong>ckholm och Lund (Göteborg: Avhandlingar från His<strong>to</strong>riska institutionen i Göteborg 1996); Tapani<br />
Suominen, Ehkä teloitamme jonkun: Opiskelijaradikalismi ja vallankumous<strong>fi</strong>ktio 1960- ja 1970-<br />
lukujen Suomessa, Norjassa ja Länsi-Saksassa (<strong>Helsinki</strong>: Tammi 1997).<br />
7 Mark Kurlansky, 1968: The Year that Rocked the World (London: Jonathan Cape 2004).<br />
8 Edward P. Morgan, The 60s Experience: Hard Lessons about Modern America (Philadelphia: Temple<br />
University Press 1991); Søren Hein Rasmussen, Sære alliancer: Politiske bevægelse i efterkrigstidens<br />
Danmark (Odense: Odense Universitetsforlag 1997); Terttu Pesonen, Valla<strong>to</strong>nta valtaa: Tutkielma 1960-<br />
luvun radikalismista Suomessa (<strong>Helsinki</strong>: Helsingin Yliopis<strong>to</strong> 1992).<br />
9 William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–<br />
1937 (New York: Oxford University Press 1998); Lars Björne, Den konstruktiva riktningen: Den<br />
nordiska rättsvetenskapens his<strong>to</strong>ria, Del III, 1871–1910 (Lund: Rättshis<strong>to</strong>risk bibliotek 2002).<br />
10 Mor<strong>to</strong>n J. Horwitz, Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy<br />
(New York: Oxford University Press 1992), 169–268; Lars Björne, Realism och skandinavisk realism:<br />
Den nordiska rättsvetenskapens his<strong>to</strong>ria, Del IV, 1911–1950 (S<strong>to</strong>ckholm: Rättshis<strong>to</strong>risk bibliotek 2007).<br />
3
1930s. 11 Finland thus remained more or less within the conceptualist framework of the<br />
nineteenth-century throughout the <strong>fi</strong>rst part of the twentieth. The 1950s and 1960s witnessed<br />
the birth of the Finnish analytical school of jurisprudence, which was a sophisticated<br />
version of conceptualism, deriving its motives from the Scandinavian realist’s<br />
criticism of metaphysics and postwar linguistic philosophy, and dividing legal concepts<br />
in<strong>to</strong> <strong>fi</strong>ner parts and examining their meaning in legal practice. 12<br />
In the 1960s and 1970s, critical legal scholarship entered the stage by arguing,<br />
roughly speaking, that law and legal scholarship were political. The criticism <strong>to</strong>ok various<br />
forms. In the United States, for example, it was <strong>to</strong>tal criticism of knowledge, 13 criticism<br />
of the rational basis of legal reasoning, 14 or analysis revealing the economic and<br />
political purposes of legal doctrine with respect <strong>to</strong> its his<strong>to</strong>rical development. 15 In Scandinavia,<br />
critical scholars opined that legal scholarship ought <strong>to</strong> be socially oriented, 16 or<br />
Marxist analysis of law, 17 or his<strong>to</strong>rical study revealing the economic and political purposes<br />
of law. 18 In Finland, critical legal scholars developed a program for a political<br />
jurisprudence paying attention <strong>to</strong> the political and social functions of law, 19 argued that<br />
legal reasoning was merely rhe<strong>to</strong>ric, 20 or explored the his<strong>to</strong>rical development of law in<br />
order <strong>to</strong> reveal its social and economic purposes. 21 As can be seen, there was no uniform<br />
basis of critical legal scholarship, but rather there were many critical legal theories.<br />
By and large, critical legal scholarship in the various countries shared many similarities.<br />
At the center of the criticism was liberal legalism. 22 Critical scholars argued that<br />
11 See, e.g., Toni Malminen, So You Thought Transplanting Law Is Easy? Fear of Scandinavian Legal<br />
Realism in Finland, 1918─1965, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki (eds.), Nordic Law:<br />
Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 75–87.<br />
12 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luen<strong>to</strong>ja<br />
oikeustieteen his<strong>to</strong>riasta (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong> 1996), 127–137.<br />
13 Rober<strong>to</strong> Mangabeira Unger, Knowledge and Politics (New York: The Free Press 1975).<br />
14 Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685–<br />
1778 (1976).<br />
15 Mor<strong>to</strong>n J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Massachusetts:<br />
Harvard University Press 1977).<br />
16 Per Olof Bolding, Juridik och samhällsdebatt (S<strong>to</strong>ckholm: Almqvist & Wiksell 1968); Carl August<br />
Fleischer, Grunnlovens grenser: For lovregulert fastsettning av erstatning ved eksproriasjon, ─ særlig ved<br />
verdistigning som ikke skyldes grunneiers innsats (Oslo: Universitetsforlaget 1968).<br />
17 Göran Elwin & Dag Vic<strong>to</strong>r, Rättsteori och dialektisk materialism, HfKS 4/1973, 21─38; Anders Fogelklou,<br />
Den orättfärdiga rätten: En studie över Hegels rättfärdigande och marxismens kritik av den moderna<br />
rättsordningen (S<strong>to</strong>ckholm: P.A. Nordstedt & Söners förlag 1978).<br />
18 Torben Wanscher, Forsamlingsfriheden og “fælledslaget”: Studier til belysning af statens fastlæggelse<br />
af grænserne for arbejderbevægelsens forsamlingsfrihed 1872─1874 (Århus: Modtryk 1979).<br />
19 Antti Kivivuori, Politische Rechtswissenschaft (<strong>Helsinki</strong> 1971).<br />
20 Lars D. Eriksson, Rättslig argumentering och den dialektiska logiken, JFT 1966, 445–482.<br />
21 Antero Jyränki, Perustuslaki ja yhteiskunnan muu<strong>to</strong>s: Tutkimus varallisuusoikeuksien ja taloudellisen<br />
<strong>to</strong>iminnan vapauden perustuslainsuojan kehittymisestä tulkinnan avulla v. 1863─1919 (<strong>Helsinki</strong>: Tammi<br />
1973).<br />
22 Critical scholars have had several conceptions of “liberalism” and have labeled people with different<br />
opinions as “liberal”. Here the concept of “liberal legalism” means that individual liberties are protected,<br />
everyone is equal before the law, the rule of law is considered necessary <strong>to</strong> protect liberties and <strong>to</strong> establish<br />
a government, law is not inherently biased <strong>to</strong>ward any potential interests, and is a potential <strong>to</strong>ol <strong>to</strong><br />
change society. (On the de<strong>fi</strong>nition of “liberal legalism”, see, e.g., Laura Kalman, The Strange Career of<br />
Legal Liberalism (New Haven: Yale University Press 1996), 42–43, 265 n. 52. She prefers the phrase<br />
4
the rule of law was fundamentally flawed and structured <strong>to</strong> protect particular interests,<br />
and traditional legal scholarship was criticized for its inability <strong>to</strong> realize the ideological<br />
elements of law. According <strong>to</strong> the critics, traditional scholarship was influenced by social<br />
ideology and the biases of the scholar and could thus not provide realistic information<br />
about the law. They thought that since legal reasoning was also influenced by<br />
social ideology and personal biases in addition <strong>to</strong> the fact that law was contradic<strong>to</strong>ry, it<br />
had no rational basis. Critical scholars emphasized the importance of analysis of the<br />
biases of law.<br />
The development of critical scholarship was also basically the same. Criticism of<br />
law and the politicization of legal research, especially studies on criminal law, were<br />
signi<strong>fi</strong>cantly boosted in the 1960s. The critical criminology and sociology of law of the<br />
1960s were important antecedents <strong>to</strong> the more critical legal scholarship which emerged<br />
in the late 1960s and the 1970s, when the criticism <strong>to</strong>ok more organized and sophisticated<br />
forms, turned more <strong>to</strong>ward a philosophical criticism of law, and when critical<br />
scholars established forums for discussion on critical scholarship. In the United States,<br />
this appeared in the development of the Critical Legal Studies movement (CLS) 23 and in<br />
the Nordic Countries as the rise of Marxist legal scholarship and the establishment of<br />
critical law reviews. 24<br />
The nuances and details of the critical legal theories of the various countries become<br />
clearer after a comparative analysis, only after which can we achieve an understanding<br />
of the movements. For instance, CLS has often been criticized for its nihilism<br />
and lack of alternatives. 25 It is true that it was more a movement of philosophical criticism,<br />
whereas Scandinavian critical scholarship was often more constructive and political,<br />
providing alternative views for reforms. However, as will be seen, the conception of<br />
CLS as a merely critical and destructive movement is exaggerated and simpli<strong>fi</strong>es the<br />
theories. 26 To a certain extent at least, American critical legal scholarship believed more<br />
in the deconstruction of doctrine than in the radical social reform through law, but this is<br />
“legal liberalism” instead, however. On the problem of liberal legalism in leftist scholarship, see, e.g.,<br />
Wendy Brown and Janet Halley, Introduction, 5–7, in Wendy Brown and Janet Halley (eds.), Left Legalism/Left<br />
Critique (Durham: Duke University Press 2002), 1–37.)<br />
23 In general on CLS, see Mark Kelman, A Guide <strong>to</strong> Critical Legal Studies (Cambridge, Massachusetts:<br />
Harvard University Press 1987). CLS has since become one of the most influential jurisprudential<br />
“schools”. On the various symposiums held on the subject, see 36 Stanford Law Review 1–674 (1984);<br />
34 American University Law Review 927–1262 (1985); 6 Cardozo Law Review 691–1032 (1985); 52<br />
George Washing<strong>to</strong>n Law Review 239–287 (1985); 35 Journal of Legal Education 1–122, 157–298 (1985)<br />
[Symposium on legal education]; 31 St. Louis University Law Journal 1–132 (1986); 14 Journal of Law<br />
and <strong>Society</strong> 1–198 (1987); 81 Northwestern University Law Review 589–952 (1987) [Symposium on<br />
Unger’s theory]; 22 Harvard Civil Rights-Civil Liberties Law Review 297–702 (1987) [Minorities critique<br />
of CLS]; 90 George<strong>to</strong>wn Law Journal 127–252 (2001) [Symposium on the scholarship of Mark<br />
Tushnet]; 22 Cardozo Law Review 701–1190 (2001) [symposium on Duncan Kennedy, A Critique of<br />
Adjudication: {<strong>fi</strong>n de siècle} (Cambridge, Massachusetts: Harvard University Press 1997)].<br />
24 In general, see Göran Elwin & Dag Vic<strong>to</strong>r (eds.), Rätt och marxism: Introduktion och material (S<strong>to</strong>ckholm:<br />
Kontrakurs 1978).<br />
25 Phillip E. Johnson, Do You Sincerely Want <strong>to</strong> be Radical? 36 Stanford Law Review 247, 249 (1984).<br />
26 See, e.g., Mark Kelman, Trashing, 36 Stanford Law Review 293, 299–300 (1984). As will be noted, the<br />
“mainstream” CLS was mostly critical, but at the periphery of the movement scholars often provided<br />
alternatives <strong>to</strong> improve the situation.<br />
5
not the whole picture. In addition, when we set the development in context, we will see<br />
that CLS grew out of an atmosphere in which critical and realist legal scholarship had a<br />
position, 27 and the critical scholars were thus not the <strong>fi</strong>rst <strong>to</strong> revive realist notions. Furthermore,<br />
the fact that the criticism in Finland was relatively more radical than elsewhere<br />
follows from the his<strong>to</strong>rical circumstances of Finnish society and scholarship.<br />
The critical legal scholarship of the 1960s and 1970s has <strong>to</strong> be unders<strong>to</strong>od in context,<br />
which is the <strong>fi</strong>rst and foremost purpose of this study. The 1960s and 1968 in particular<br />
did not come out of nothing; 28 neither did critical legal scholarship. It was a segment<br />
in a process, reflecting various levels of development and change. It is therefore<br />
important <strong>to</strong> understand this critical scholarship against its his<strong>to</strong>rical context and against<br />
its place in the his<strong>to</strong>ry of legal scholarship because it was the jurisprudential tradition<br />
that the critical scholars attacked.<br />
Of course, critical legal scholarship was not a particular phenomenon of the 1960s.<br />
On the contrary, in the course of his<strong>to</strong>ry there have been several critical scholars and<br />
jurisprudential movements similar <strong>to</strong> those of the 1960s. In the late eighteenth century,<br />
Jeremy Bentham criticized the law of England in a radical manner by arguing that the<br />
whole common law system ought <strong>to</strong> be changed. 29 Well-known attacks on legal scholarship<br />
occurred in late nineteenth-century Germany, when the jurisprudence of concepts<br />
was criticized for being completely detached from reality. The critical scholars argued<br />
that legal scholarship should focus on the interests of law, 30 and that legal reasoning<br />
ought <strong>to</strong> be free in accordance with social needs. 31 In the United States, Roscoe Pound<br />
criticized the legal tradition in the early twentieth century, 32 and in the 1920s and 1930s<br />
the legal realists launched heavy attacks on traditional scholarship. 33 In fact, legal his<strong>to</strong>rian<br />
Harold Berman writes that late-medieval humanistic jurisprudence “was a <strong>fi</strong>fteenthcentury<br />
parallel <strong>to</strong> the radical attack against traditional legal scholarship by ‘realist’ and<br />
27 See, e.g., Arthur S. Miller and Ronald F. Howell, The Myth of Neutrality in Constitutional Adjudication,<br />
27 University of Chicago Law Review 661─695 (1960); Charles A. Reich, Toward the Humanistic<br />
Study of Law, 74 Yale Law Journal 1402─1408 (1965).<br />
28 Arthur Marwick has spoken about “the long 1960s”, ranging from the late 1950s <strong>to</strong> the mid-1970s,<br />
1968 being merely a part of the period. (Arthur Marwick, The Sixties: Cultural Revolution in Britain,<br />
France, Italy, and the United States, c.1958–c.1974 (Oxford: Oxford University Press 1998), 7–8, and see<br />
id. at 535, 656). His thesis, nevertheless, is that there was a period called “the sixties” in which several<br />
considerable cultural changes occurred.<br />
29 Jeremy Bentham, A Fragment on Government (Edited with an Introduction by F. C. Montague, London:<br />
Oxford University Press 1931) (1776).<br />
30 Rudolf von Jhering, Der Zweck im Recht (Hildesheim: Georg Olms Verlag 1970) (1877─1883).<br />
31 See in general, e.g., Franz Wieacker, A His<strong>to</strong>ry of Private Law in Europe ─ with particular reference <strong>to</strong><br />
Germany (Oxford: Clarendon Press 1995), 453–458.<br />
32 Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, I–III, 24 Harvard Law Review<br />
591–619 (1911), 25 Harvard Law Review 140–168, 489–516 (1912); Roscoe Pound, Mechanical Jurisprudence,<br />
8 Columbia Law Review 605–623 (1908).<br />
33 Karl N. Llewellyn, A Realistic Jurisprudence ─ The Next Step, 30 Columbia Law Review 431─465<br />
(1930); Karl N. Llewellyn, Some Realism About Realism ─ Responding <strong>to</strong> Dean Pound, 44 Harvard Law<br />
Review 1222–1264 (1931); Jerome Frank, Law and the Modern Mind (London: Stevens & Sons 1949)<br />
(1930).<br />
6
‘critical’ movements in American jurisprudence of the twentieth century.” 34 Different<br />
times have had their share of critical legal scholarship, and the 1960s was no exception.<br />
Critical theories always reflect the currents of their time, and studies on particular times<br />
and places reveal something new about the dynamics of legal scholarship, which is the<br />
purpose of my his<strong>to</strong>rical reconstruction. The analysis of the “essence” of critical legal<br />
scholarship of a particular time, however, requires another perspective.<br />
3 De<strong>fi</strong>ning “critical legal scholarship”: Subject and sources<br />
This study concerns critical legal scholarship, but the concept of critical scholarship is<br />
broad and ambiguous. One could even argue that all scholarship is critical in some<br />
sense. Our subject, however, is scholarship that is somehow “more” critical than the<br />
usual sense of the word. What we are seeking here is a certain kind of “radical” criticism<br />
of law. In a dictionary sense, the word “radical” can mean going <strong>to</strong> the root of the<br />
problem or opinions far beyond the norm, 35 and this is especially what we mean when<br />
speaking of radical or critical legal scholarship. Critical legal scholarship thus criticizes<br />
the fundamentals of law and legal scholarship. It goes <strong>to</strong> the root of the problem, and if<br />
it provides alternatives <strong>to</strong> change the situation, which it does not necessarily do, these<br />
are usually extreme proposals.<br />
Critical legal scholarship is therefore critical in a fundamental sense. 36 In this<br />
study, we are concerned with the way the critical discourse was manifested within the<br />
legal discourse. The conflict between traditional and critical scholarship can be illustrated<br />
by particular scienti<strong>fi</strong>c concepts which reflect the ideas of the critical legal scholars.<br />
The theories below are used simply <strong>to</strong> clarify and explain the situation, and <strong>to</strong> illuminate<br />
the difference between traditional and critical scholarship. This is also necessary in order<br />
<strong>to</strong> understand critical scholarship as a his<strong>to</strong>rical phenomenon, as will be noted. The<br />
theories used were originally developed for the natural sciences and do not therefore<br />
apply straightforwardly <strong>to</strong> legal scholarship. Their uses as examples, however, help <strong>to</strong><br />
demonstrate our subject and <strong>to</strong> understand the scholarly controversy that was at stake.<br />
In his well-known book, The Structure of Scienti<strong>fi</strong>c Revolutions, Thomas Kuhn<br />
launched the concept of the paradigm in<strong>to</strong> the scienti<strong>fi</strong>c language. Simply put, a paradigm<br />
is the intellectual framework of a scienti<strong>fi</strong>c community; its shared concepts, values,<br />
methods, and beliefs. A paradigm determines the way scienti<strong>fi</strong>c problems are<br />
34 Harold J. Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western<br />
Legal Tradition (Cambridge, Massachusetts: The Belknap Press of Harvard University Press 2003), 103.<br />
35 http://www.websters-online-dictionary.org/de<strong>fi</strong>nitions/radical (last visited 27.4.2012).<br />
36 On the various forms of legal criticism and its problems, see Kaarlo Tuori, Law, Power and Critique,<br />
22–28, in Kaarlo Tuori, Zenon Bankowski, Jyrki Uusitalo (eds.), Law and Power: Critical and Socio-<br />
Legal Essays (Liverpool: Deborah Charles Publications 1997), 7–29. As noted, this study is not concerned<br />
about the theoretical merits or potential of critical scholarship.<br />
7
viewed and de<strong>fi</strong>ned, and offers methods for solutions. 37 Traditional legal scholarship<br />
can be seen as the paradigm against which the critical scholars rebelled. The critical<br />
scholars viewed facts differently than the traditional scholars, which caused anomalies<br />
in their thought. 38 These anomalies, however, did not follow discoveries which the paradigm<br />
could not explain, following rather the different style of perception, or epistemology,<br />
of the critical scholars. To illustrate this kind of anomaly, we can use another<br />
theory by another philosopher of science, Ludwik Fleck, 39 and his theory on thought<br />
collectives and thought style, because it provides a better view of the his<strong>to</strong>rical, cultural,<br />
and social dimensions of scholarship.<br />
According <strong>to</strong> Fleck, a thought collective is the common intellectual background of<br />
a scienti<strong>fi</strong>c community, and a thought style is its particular way of scienti<strong>fi</strong>c observation.<br />
Scienti<strong>fi</strong>c facts are construed within a his<strong>to</strong>rical and social process. A thought collective<br />
makes scienti<strong>fi</strong>c observation and discourse possible, and a thought style determines<br />
the observation of problems. 40 The nature of perception thus becomes important,<br />
because one has <strong>to</strong> distinguish essential from inessential and the image from the background.<br />
One has also <strong>to</strong> recognize the category <strong>to</strong> which the object belongs . 41 The critical<br />
scholars thus departed from the conventional though styles and viewed the subject of<br />
their scholarship with thought styles alien <strong>to</strong> the thought collective.<br />
The change in thought styles and thought collectives occurs in an extensive context.<br />
42 Cognition consists rather of what we learn than what we acknowledge, and prior<br />
knowledge conditions the formation of newer knowledge. A new epistemology has <strong>to</strong><br />
be adapted <strong>to</strong> its social and cultural-his<strong>to</strong>rical context so that it will not fatally contradict<br />
the his<strong>to</strong>ry of consciousness and practical every-day life. 43 Studying critical legal scholarship<br />
in context provides us information on the ways the critical scholars received the<br />
scholarly tradition and their education, and how the consciousness they acquired<br />
through their education responded <strong>to</strong> the changes in society, culture, economics, and<br />
politics.<br />
The interplay between the thought collective and the context is therefore at the<br />
heart of the critical epistemology, since, Fleck claims, “[a]lthough the thought collective<br />
37 Thomas S. Kuhn, The Structure of Scienti<strong>fi</strong>c Revolutions (Chicago: The University of Chicago Press<br />
1996), esp. at 10–13, 23–42, 92–95.<br />
38 Id. at 52–65. An anomaly occurs when the dominant paradigm is unable <strong>to</strong> provide solution <strong>to</strong> a problem.<br />
39 Fleck’s theory was originally published in 1935, but was mostly ignored and forgotten because it was<br />
published by a small Swiss publishing company, and furthermore, because most of his other writings<br />
were published in Polish. Nevertheless, Fleck's ideas did influence the theory of Kuhn. The theories of<br />
both Kuhn and Fleck are used here simply <strong>to</strong> illustrate the epistemological aspects of critical legal scholarship.<br />
40 Ludwik Fleck, Genesis and Development of a Scienti<strong>fi</strong>c Fact (Chicago: The University of Chicago<br />
Press 1979), esp. at 9–11, 37–51, 64, 84–111.<br />
41 Ludwik Fleck, To Look, To See, To Know, 130, in Robert S. Cohen & Thomas Schnelle (eds.), Cognition<br />
and Fact: Materials on Ludwik Fleck (Dordrecht: D. Reidel Publishing Company 1986), 129–151.<br />
42 The problem of how various thought styles come <strong>to</strong> exist is more a problem of theory of science rather<br />
than legal his<strong>to</strong>ry, and therefore goes beyond the scope of this study.<br />
43 Ludwik Fleck, On the Crisis of ‘Reality’, 47–49, in Cohen & Schnelle (eds.) 1986, supra n. 41 at 47–<br />
57.<br />
8
consists of individuals, it is not simply the aggregate sum of them. The individual within<br />
the collective is never, or hardly ever, conscious of the prevailing thought style,<br />
which almost always exerts an absolutely compulsive force upon his thinking and with<br />
which it is not possible <strong>to</strong> be at variance.” 44 The s<strong>to</strong>ry of critical legal scholarship is a<br />
s<strong>to</strong>ry of scholars adopting alien thought styles and thus challenging the scienti<strong>fi</strong>c community.<br />
By criticizing the paradigm of law, one stepped beyond the conventional<br />
boundaries of criticism. Within a paradigm, law was unders<strong>to</strong>od and approached in approximately<br />
the same fashion, but the criticism of the paradigm, on the other hand,<br />
meant criticism that did not approve the fundamental premises of law and legal scholarship.<br />
Critical legal scholarship thus deviated from the basic features of traditional scholarship.<br />
If we assume that traditional scholarship focuses on explaining the way the law<br />
responds <strong>to</strong> particular legal problems, assumes the au<strong>to</strong>nomy of law <strong>to</strong> some extent,<br />
uses legal material, such as cases and statutes etc., as sources, and excludes considerations<br />
of values and policies, then critical legal scholars perceived both the subject and<br />
the functions of scholarship in a different way than traditional scholars. This is what<br />
will be called the nucleus of critical or radical-critical legal scholarship. It disliked simple<br />
doctrinal analysis and rejected the possibility of objectivity, neutrality and rationality<br />
in legal research, reasoning, and law, and therefore encouraged the use of values and<br />
policies in these regards. Since critical legal scholarship often sought the problems of<br />
law in its roots, it can be called radical scholarship because it did not aim <strong>to</strong> correct details<br />
on the surface, but aimed <strong>to</strong> change the fundamentals.<br />
These were the simple characteristics of critical legal scholarship, but there were<br />
differences. For instance, CLS, the form of American critical legal scholarship of the<br />
1970s, did not always have an instrumental view of law. Rather, it was characterized by<br />
pessimism about law as an agent of social change, and instead of social sciences it applied<br />
philosophical analysis <strong>to</strong> law. American critical legal scholarship before CLS bore<br />
a closer resemblance <strong>to</strong> the instrumental, social-scienti<strong>fi</strong>c legal research. Nevertheless,<br />
critical legal scholarship in a more radical or more modest sense meant an alternative<br />
perspective on law. The difference between critical scholars and traditional scholars<br />
often originated from the epistemological differences between them. Critical and traditional<br />
scholars had a different way of perceiving legal phenomena, different way of<br />
dealing with their observations, and a different view of what the law ought <strong>to</strong> be. These<br />
fundamental differences in observation and consciousness laid the basis for critical legal<br />
scholarship.<br />
Jurisprudential “schools” or “movements” are hardly ever unambiguous. 45 Critical<br />
legal scholarship was not a uni<strong>fi</strong>ed theory but a network of scholars sharing a common<br />
basis. 46 Critical scholars developed their own theories and often disagreed on details.<br />
44 Fleck 1979, supra n. 40 at 41.<br />
45 N.E.H. Hull, Networks & Bricolage: A Prolegomenon <strong>to</strong> a His<strong>to</strong>ry of Twentieth-Century American<br />
Academic Jurisprudence, 35 American Journal of Legal His<strong>to</strong>ry 307–322 (1991).<br />
46 A Conversation with Duncan Kennedy, 2/24 The Advocate 56, 56 (1994).<br />
9
Furthermore, there were various scholars at the time who disagreed with the traditional<br />
scholarship <strong>to</strong> a certain extent but who did not adopt a radical view. The forms of scholarship<br />
that sought <strong>to</strong> change the nature of the tradition without however departing from<br />
it in a fundamental sense will be called alternative legal scholarship. If a paradigm refers<br />
<strong>to</strong> methods of research, and thought styles refer <strong>to</strong> perception, then alternative<br />
scholarship sought <strong>to</strong> change the paradigm and critical scholarship perception and consciousness.<br />
Thus, the core of critical legal scholarship <strong>to</strong>ok a radical distance from the<br />
tradition, and the periphery of critical scholarship sought <strong>to</strong> change certain aspects of<br />
the tradition while remaining more or less true <strong>to</strong> its fundamental tenets. In this study,<br />
the CLS movement and Marxist legal scholarship are at the core, and in the periphery<br />
are the various forms of sociological and realist jurisprudence. The core will be called<br />
“critical legal scholarship”, and the periphery “alternative legal scholarship”.<br />
The sources consist of the published legal literature of the 1960s and 1970s, from<br />
which I have sifted the literature which adopts a critical stance <strong>to</strong>ward law and traditional<br />
legal scholarship in the sense of this study. With respect <strong>to</strong> the United States, my<br />
starting-point is naturally CLS, even though it is very dif<strong>fi</strong>cult <strong>to</strong> de<strong>fi</strong>ne it. 47 The main<br />
focus is the literature listed in the CLS bibliography, 48 although, as the authors write,<br />
the list is a bibliography only of the movement and does not include critical legal literature<br />
beyond that. 49 CLS was not the only critical legal movement in the postwar United<br />
States, but since it was the most radical and influential, it is crucial here. In placing CLS<br />
in context, I have included much critical legal literature of the 1960s outside the list, but<br />
as the study progresses <strong>to</strong>ward the 1980s, I will stick more closely <strong>to</strong> the literature it<br />
provides.<br />
At the heart of American critical legal scholarship were C. Edwin Baker, Peter<br />
Gabel, John Grif<strong>fi</strong>ths, Mor<strong>to</strong>n Horwitz, Al Katz, Mark Kelman, Duncan Kennedy, Karl<br />
Klare, Mark Tushnet, and Rober<strong>to</strong> Mangabeira Unger. Many others might be included<br />
as well. CLS expanded tremendously in the 1980s, but I will focus on the earlier scholarship.<br />
Furthermore, there were many critical scholars in the 1960s and 1970s outside<br />
CLS, such as the radical Arthur Kinoy, the progressive liberal Charles Reich, the postrealist<br />
Arthur Selwyn Miller, the radical activist Ralph Nader, the nihilist Arthur Leff,<br />
and many others who will be accorded less attention.<br />
Various schools of alternative and critical legal scholarship preceded and surrounded<br />
the CLS movement. I will note that the rise of feminist jurisprudence and critical<br />
race theory were important aspects of critical legal scholarship, but these are also<br />
left somewhat aside. Scholarship such as political jurisprudence and law and society are<br />
considered as alternative scholarship and therefore play a smaller part in the book. For<br />
instance, Stewart Macaulay, a scholar of the law and society movement, is included in<br />
the bibliography of CLS and was a founding member of the Conference on the Critical<br />
47 See, e.g., Kennedy 1997 supra n. 23 at 8–11.<br />
48 Duncan Kennedy & Karl E. Klare, A Bibliography of Critical Legal Studies, 94 Yale Law Journal 461–<br />
490 (1984).<br />
49 Id. at 462.<br />
10
Legal Studies, but in this study he is considered rather as an alternative scholar than a<br />
critical scholar because of his stress on empiricism and lack of radical criticism.<br />
The case of Finland and Scandinavia is somewhat challenging since there is no list<br />
of “Scandinavian critical legal scholarship”. There were, however, critical law journals,<br />
such as the Nordic Retfærd or the Finnish Oikeus, which help <strong>to</strong> de<strong>fi</strong>ne our subject. In<br />
order <strong>to</strong> sift the critical legal scholarship, I have leafed through the published legal literature<br />
of the time and selected as critical legal scholarship the literature that adopts a<br />
critical stance <strong>to</strong>ward law or legal scholarship in the radical or alternative sense. In sorting<br />
out the critical legal literature, my main sources have been, in addition <strong>to</strong> the critical<br />
journals, the most prestigious law reviews of the Nordic Countries, Lakimes, Svensk<br />
Juristtidning, Juristen, and Lov og rett. The further division between the core and the<br />
periphery of the critical legal scholarship is based on whether the scholar fundamentally<br />
criticized some aspect of the law, as well as on the amount of published literature.<br />
Therefore, a scholar who did not publish much critical literature may fall in<strong>to</strong> the periphery<br />
despite having radical notions. With respect <strong>to</strong> Scandinavia, all Marxists are<br />
considered as critical scholars, whereas that alone does not suf<strong>fi</strong>ce in Finland.<br />
Among Scandinavian legal scholars, Swedish Per Olof Bolding, Göran Elwin, Anders<br />
Fogelklou, Håkan Hydén and Dag Vic<strong>to</strong>r, Danish Peter Blume, Ole Krarup, Torben<br />
Wanscher and Henrik Zahle, and the Norwegians Carl August Fleischer and Nils Kristian<br />
Sundby are considered as critical scholars. The post-realists such as Vilhelm Aubert<br />
and Torstein Eckhoff, and sociological legal scholars such as Nils Christie, Jørgen Dalberg-Larsen<br />
and Thomas Mathiesen have a place as alternative scholars. Scandinavian<br />
Marxist legal scholarship was more encompassing than the names given would lead one<br />
<strong>to</strong> assume, 50 but I have focused on the most essential literature because a detailed analysis<br />
of Marxist legal scholarship in Scandinavia would have required space beyond the<br />
scope of this book. Alternative and critical legal scholarship in the Nordic Countries<br />
also includes various smaller “sub-schools”. There was no critical race theory in the<br />
Nordic Countries since there was no race problem. Feminist jurisprudence began <strong>to</strong><br />
arise in Scandinavia in the 1970s, but not on any major scale. In Finland, however, feminist<br />
jurisprudence did not emerge until the 1980s.<br />
It is dif<strong>fi</strong>cult <strong>to</strong> de<strong>fi</strong>ne the critical Finnish legal scholars because of the radical<br />
character of the scholarship. Nevertheless, the essential critical legal scholars in Finland<br />
are Lars D. Eriksson, Antero Jyränki, and Antti Kivivuori. Though not a legal scholar,<br />
Raimo Blom can also be included because of his considerable contribution <strong>to</strong> the criticism<br />
of law. There is a <strong>fi</strong>ne, thin line between radicals and not-so-radical critical scholars,<br />
and further problems follow from scholars who did not produce much literature.<br />
Close <strong>to</strong> the core in one way or another were Eero Backman, Niklas Bruun, Matti Mikkola,<br />
Olli Mäenpää, Esko Riepula, Juha Tolonen, and Kaarlo Tuori. In addition, sociological<br />
jurisprudence and alternative legal scholarship became more common in these<br />
years, which expands the list, and many scholars will not receive a detailed analysis.<br />
50 See, e.g., the authors of Juristen og samfundet (Udgivet af Fagkritisk Front ved Aarhus Universitet på<br />
Forlaget MODTRYK 1973). See also Elwin & Vic<strong>to</strong>r (eds.) 1978, supra n. 24 at 173–184.<br />
11
Critical criminologists are considered as alternative legal scholars, although they are not<br />
<strong>to</strong> be identi<strong>fi</strong>ed with the critical scholars.<br />
As noted, my sources consist almost exclusively of the published legal literature of<br />
the time. I have not conducted any interviews during my research. Some of the Finnish<br />
critical legal scholars have commented upon my text, 51 but besides the comments, I<br />
have not relied on any oral information. The reason for this is that the literary sources<br />
on the subject are so vast that a his<strong>to</strong>rical reconstruction of the events on its basis is possible.<br />
Moreover, memory is never a very reliable source when studying events that occurred<br />
over three decades ago. The literary sources exist as they were, but the authors<br />
may remember the reasons and motives behind the texts somewhat inaccurately. It is<br />
true that conversations with the authors may bring important information about the<br />
background of the scholars and open up their theories, as James Hackney’s brilliant interviews<br />
with the American legal scholars of the latter part of the twentieth century<br />
demonstrate. 52 Nevertheless, regarding the purposes of this study, all the relevant information<br />
can be found in the published materials.<br />
4 The pursuit of legal his<strong>to</strong>ry<br />
The purpose here is not <strong>to</strong> write a his<strong>to</strong>ry of legal scholarship, 1965–1980, but <strong>to</strong> study<br />
one aspect of it; critical legal scholarship. As the Swedish his<strong>to</strong>rian Kim Salomon notes,<br />
much happened in the 1960s but it is the social turbulence of that decade that is often<br />
remembered. 53 This study is also on the radical aspect of the 1960s and 1970s, and<br />
many interesting aspects regarding the development of legal scholarship are left out. In<br />
addition, the critical legal scholarship we are focusing on sprang mostly from the left in<br />
political terms. Radicalism and criticism can, of course, be either right or left in political<br />
terms, either conservative or reformist, 54 but the critical scholarship that interests us was<br />
mostly leftist and reformist. In the 1960s, when the ideology of the left became more<br />
common within culture and politics, it became a mode of protest, antagonism, and re-<br />
51 I am very grateful <strong>to</strong> the critical comments that Niklas Bruun, Lars D. Eriksson, Antti Kivivuori, and<br />
Kaarlo Tuori made on my manuscript. Their comments helped me <strong>to</strong> understand the context as well as<br />
some of the theoretical details of the critical scholarship.<br />
52 James R. Hackney Jr., Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary<br />
American Legal Theory (New York: New York University Press 2012). Hackney’s book contains<br />
a few interviews which are interesting from the perspective of my study. These are especially Duncan<br />
Kennedy and Mor<strong>to</strong>n Horwitz, as well as Austin Sarat, Catherine Mackinnon and Patricia Williams.<br />
These interviews would be especially interesting if writing a personal his<strong>to</strong>ry of the scholars involved in<br />
CLS. However, in a study such as this, they do not provide much further data that cannot be inferred from<br />
the published primary and secondary sources.<br />
53 Kim Salomon, Det mytiska 1968, 27–29, in Kjell Å. Modéer & Martin Sunnqvist (eds.), 1968 och<br />
därefter: De kritiska rättsteoriernas betydelse för nordisk rättsvetenskap (Københavns Universitet: Museum<br />
Tusculanums Forlag 2010), 27–42.<br />
54 See, e.g., John A. Andrew III, The Other Side of the Sixties: Young Americans for Freedom and the<br />
Rise of Conservative Politics (New Brunswick, New Jersey: Rutgers University Press 1997). Andrew<br />
focuses on the “New Right” and the origins of modern conservatism in the postwar decades.<br />
12
formism. Our subject is therefore the leftist, academic, critical scholarship of the 1960s<br />
and 1970s.<br />
Various aspects have <strong>to</strong> be taken in<strong>to</strong> account in reconstructing the his<strong>to</strong>ry of critical<br />
legal scholarship. The rise of the criticism has <strong>to</strong> be situated within the context of<br />
society, politics, and the economy, on the one hand, and the tradition of jurisprudence as<br />
well as the changes in scholarship, philosophy, and culture on the other. In the pursuit of<br />
his<strong>to</strong>ry, various interpretations are thus possible. For example, ever since Charles Beard<br />
argued that the drafters of the Constitution of the United States acted out of sel<strong>fi</strong>sh interests<br />
<strong>to</strong> protect the capitalist economy, 55 the scholars of American constitutional his<strong>to</strong>ry<br />
have had <strong>to</strong> deal with the question of whether the Constitution was an economic document<br />
protecting capitalism or political document establishing a true republican regime.<br />
56 The conflict between material interests and intellectual goals therefore lies at the<br />
heart of legal his<strong>to</strong>ry. These fac<strong>to</strong>rs, of course, usually converge, and it is often dif<strong>fi</strong>cult<br />
<strong>to</strong> stress one over another. This is particularly true when one considers the his<strong>to</strong>ry of<br />
legal scholarship because it is different than legislation as the latter relates more closely<br />
<strong>to</strong> societal interests.<br />
The variety of the his<strong>to</strong>rical analyses of CLS can be used as illustrations. For example,<br />
CLS has been analyzed against its intellectual context, 57 and has been depicted<br />
as a post-modern movement. 58 It is true that critical legal scholarship was an application<br />
of the recent developments in various other disciplines in legal scholarship. The critical<br />
science that developed in the <strong>fi</strong>rst half of the twentieth century became more popular in<br />
philosophy and social sciences in the postwar world and, from the 1960s onwards,<br />
Marxism was revived as a theoretical basis in various disciplines. The new trends in<br />
scholarship often emphasized the context of observation and knowledge. Legal scholarship<br />
followed these trends selectively and with a certain lag, but the critical scholarship<br />
nonetheless contested the validity of empirical observations and stressed the importance<br />
of the structures of the observation. As Marxism entered the universities extensively,<br />
legal scholarship followed. Intellectual sources usually influence scholarship, but the<br />
scholars do not write in a vacuum. The legal his<strong>to</strong>rian G. Edward White notes that both<br />
55 Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York:<br />
Free Press 1965) (1913).<br />
56 Pope McCorkle, The His<strong>to</strong>rian as Intellectual: Charles Beard and the Constitution Reconsidered, 28<br />
American Journal of Legal His<strong>to</strong>ry 314, 314–319 (1984); Shlomo Slonim, Motives at Philadelphia, 1787:<br />
Gordon Wood’s Neo-Beardian Thesis Reexamined, 16 Law and His<strong>to</strong>ry Review 527, 527–528 (1998);<br />
Gordon Wood, “Motives at Philadelphia”: A Comment on Slonim, 16 Law and His<strong>to</strong>ry Review 553–562<br />
(1998).<br />
57 James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 University<br />
of Pennsylvania Law Review 685–780 (1985); Joan C. Williams, Critical Legal Studies: The Death of<br />
Transcendence and the Rise of the New Langdells, 62 New York University Law Review 429–496<br />
(1987).<br />
58 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York:<br />
New York University Press 1995), 1–2. But see Stephen M. Feldman, American Legal Thought from<br />
Premodernism <strong>to</strong> Postmodernism: An Intellectual Voyage (New York: Oxford University Press 2000),<br />
131–132. Feldman argues that CLS was a modernist movement.<br />
13
the rise of the continental theory and the New Left politics affected the formation of<br />
CLS. 59 The political and social context has <strong>to</strong> be included as well.<br />
The political and social context has been present in various depictions of the his<strong>to</strong>ry<br />
of CLS, which is commonly linked <strong>to</strong> leftist politics. CLS has been described as a<br />
“political location” of leftist legal scholars 60 and as a movement of u<strong>to</strong>pian socialism. 61<br />
It has often been viewed as an outcome of the radicalism of the 1960s, 62 although it is<br />
also argued that the circumstances of the 1950s had more influence. 63 It is obvious that<br />
the radicalism of the 1960s influenced the rise of critical legal scholarship, but the fundamental<br />
questions would be, however, what caused the radicalism in the <strong>fi</strong>rst place,<br />
and why these particular scholars under<strong>to</strong>ok that critical enterprise. I cannot delve deeply<br />
in<strong>to</strong> these questions, but I will analyze the relationship between the critical legal<br />
scholarship and the radical ideas of the 1960s.<br />
Indeed, critical legal scholarship was in part a response <strong>to</strong> the social turmoil. Its<br />
methods and purposes aimed <strong>to</strong> criticize the established norms and institutions of society.<br />
By applying the language of social criticism of the time, critical legal scholars challenged<br />
and ridiculed the authorities. In addition, as the labor movement gained a stronger<br />
foothold in society and the postwar economic growth descended in<strong>to</strong> crisis, critical<br />
scholars explored the doctrines of law, pointing out the conflict between labor and capital<br />
and how the apparently neutral law protected the interests of capitalism. In general,<br />
just as the “other side” of society was recognized and pronounced more openly in the<br />
1960s, critical legal scholars contested the power hierarchies and sided with the underdog.<br />
It is obvious that critical scholarship had political connections, but it should not be<br />
reduced simply <strong>to</strong> political jurisprudence. Many of the impulses of scholarship come<br />
from outside academia, but the literature is produced within academia. In order not <strong>to</strong><br />
reduce critical scholarship <strong>to</strong> its political assumptions, it has <strong>to</strong> be seen within the <strong>fi</strong>eld<br />
in which the critical discourse <strong>to</strong>ok place.<br />
The academic structures in which this happened are thus also important. CLS was<br />
mostly an academic movement. 64 Critical scholars contested the prevailing forms of<br />
scholarship and education and sought <strong>to</strong> replace them with their own methods. As noted,<br />
student radicalism was a major aspect of the social turbulence of the 1960s. Critical<br />
scholars were rarely student radicals, but they represented the junior faculty, which ob-<br />
59 G. Edward White, From Realism <strong>to</strong> Critical Legal Studies: A Truncated Intellectual His<strong>to</strong>ry, 40 Southwestern<br />
Law Journal 819, 837–838 (1987).<br />
60 Mark Tushnet, Critical Legal Studies: A Political His<strong>to</strong>ry, 100 Yale Law Journal 1515, 1516 (1991).<br />
61 Michael A. Foley, Critical Legal Studies: New Wave U<strong>to</strong>pian Socialism, 91 Dickinson Law Review<br />
467–496 (1987).<br />
62 Guyora Binder, On Critical Legal Studies as Guerrilla Warfare, 76 George<strong>to</strong>wn Law Journal 1, 23<br />
(1987); John Henry Schlegel, Notes Toward an Intimate, Opinionated, and Affectionate His<strong>to</strong>ry of the<br />
Conference on Critical Legal Studies, 36 Stanford Law Review 391, 406–407 (1984).<br />
63 Tushnet 1991, supra n. 60 at 1535.<br />
64 James Boyle, Introduction, xiv, in James Boyle (ed.), Critical Legal Studies (Aldershot: Dartmouth<br />
1994), xiii–liii.<br />
14
viously sympathized with the radical students and, for one reason or another, identi<strong>fi</strong>ed<br />
with the radical cause. 65<br />
As an academic movement, CLS has been depicted as “an episode in the his<strong>to</strong>ry of<br />
American legal education” 66 and as a radical academic movement 67 or simply as radicalism.<br />
68 As Bourdieu argued, academic discourses are parts of struggles for academic capital,<br />
which determines the authority and respectability of theories and scholars. Critical<br />
scholarship is thus often a struggle for a new theory and academic power. 69 Critical legal<br />
scholarship can also be seen as part of an academic power struggle, the pursuit of a<br />
new legal theory replacing the traditional paradigm and changing the generational structure<br />
of the academic elite, as a struggle of the junior faculty against the old, competing<br />
for university positions and governance, and methods of education, scholarship, and<br />
theory. Critical legal scholarship was an all-encompassing method of grasping and criticizing<br />
society, scholarship, and academia. Seen in this way, it was more an attack on the<br />
academic tradition and establishment than on the society and politics, and the critical<br />
scholars sought more <strong>to</strong> acquire academic reputation than legal or social change. The<br />
academic power struggle is, however, only a part of the s<strong>to</strong>ry, even if a considerable<br />
part, and critical legal scholarship should not be reduced <strong>to</strong> it either.<br />
Reconstructing the his<strong>to</strong>ry of critical legal scholarship of the 1960s and 1970s involves<br />
several aspects. One problem in this regard is the search for rationality, or as<br />
Albert Camus wrote in 1951, “it is the desperate appeal for order that rings through this<br />
insane universe.” 70 Thus, <strong>to</strong> ignore the irrational aspects simpli<strong>fi</strong>es the view. Critical<br />
legal scholarship was not a group of scholars with patterned behavior, driven by the<br />
same motives and seeking the same goal. They often shared a political viewpoint but<br />
that alone does not explain critical scholarship. The subject then needs <strong>to</strong> be unders<strong>to</strong>od<br />
in a context which can include all the relevant aspects.<br />
A problem of legal his<strong>to</strong>ry is that it often sees behavior as patterned and explains<br />
situations in abstract and general terms. Of course, people often act upon their immediate<br />
material needs and their behavior is patterned, but this is not always the case. People<br />
can see that there is something wrong with the world and act altruistically without having<br />
any direct interest in the issue. People can do something simply because they think it<br />
is right, or cool, and sometimes their behavior is inexplicable even <strong>to</strong> themselves. 71 The<br />
65 See Duncan Kennedy in Hackney 2002, supra n. 52 at 28–29.<br />
66 Robert Gordon, Critical Legal Studies as a Teaching Method, 35 Loyola Law Review 383, 385 (1989).<br />
67 Albert P. Cardarelli & Stephen C. Hicks, Radicalism in Law and Criminology: A Retrospective View<br />
of Critical Legal Studies and Radical Criminology, 84 Journal of Criminal Law & Criminology 502–553<br />
(1993).<br />
68 Johnson 1984, supra n. 25.<br />
69 Pierre Bourdieu, Homo Academicus (Stanford, California: Stanford University Press 1988), esp. at<br />
xvii–xix, 6–35, 61–62, 84–127.<br />
70 Albert Camus, The Rebel (London: Penguin Books 2010), 72 (1951).<br />
71 Take a look, for instance, at the words of J.D. Salinger. “A lot of people, especially this one psychoanalyst<br />
guy they have here, keeps asking me if I’m going <strong>to</strong> apply myself when I go back <strong>to</strong> school next<br />
September. It’s such a stupid question, in my opinion. I mean how do you know what you’re going <strong>to</strong> do<br />
till you do it. The answer is, you don’t. I think I am, but how do I know? I swear it’s a stupid question.”<br />
(J.D: Salinger, Catcher in the Rye (Harmondsworth: Penguin Books 1958), 220 (1951) (Italics original).<br />
15
simple act of doing can be the goal in itself without any concrete interests or goals, and<br />
the interest a person has might even be the image the other acquires of the person. The<br />
ultimate motives of the action are then self-realization and recognition in the eyes of the<br />
other.<br />
A scholar might thus become a critical scholar for various reasons. For instance,<br />
one may develop an alternative theory because one realizes that traditional scholarship<br />
is simply untenable or that it favors some interests at the expense of others, or one may<br />
simply want <strong>to</strong> create a new theory. A scholar might became a critical scholar because<br />
of political biases, because of the literature one reads, or out of the feeling that there is<br />
something wrong with the world and the traditional scholarship is partially <strong>to</strong> blame.<br />
One can choose the literature one reads because of one’s biases, or one’s interests may<br />
follow the literature one reads. One may even feel offended in the <strong>fi</strong>rst year at law<br />
school by a professor and become a critical scholar because of a yearning for revenge<br />
against the tradition. We can never tell what the reason is for a particular scholar unless<br />
we psychoanalyze each and every scholar we are dealing with individually, and even<br />
then we could only have more or less convincing hypotheses.<br />
Generalization is thus necessary, but we should <strong>fi</strong>nd a point of reference that could<br />
summarize most of the relevant fac<strong>to</strong>rs. The 1960s witnessed many things, but one of<br />
the most remarkable was the gulf between world views that caused a completely new<br />
way of perceiving reality. Robert Pirsig aptly describes this gulf writing in 1974 that “in<br />
recent times we have seen a huge split develop between a classic culture and a romantic<br />
counterculture ─ two worlds growingly alienated and hateful <strong>to</strong>ward each other with<br />
everyone wondering if it will always be this way, a house divided against itself.” 72 It<br />
was this split between the cultures, a split that also manifested itself within the tradition<br />
of legal scholarship, which was at the heart of critical legal scholarship, because the<br />
crucial issue was the difference in perceiving the law and scholarship. If the concept of<br />
“culture” is used <strong>to</strong> mean “the network or <strong>to</strong>tality of attitudes, values and practices of a<br />
particular group of human beings”, 73 then critical legal scholarship was an academic<br />
counter-culture rivaling the traditional culture.<br />
Since the split between the traditional and critical scholarship occurred in the academic<br />
<strong>fi</strong>eld, it could be viewed as a battle for academic capital. As Bourdieu writes, “the<br />
university <strong>fi</strong>eld is, like any other <strong>fi</strong>eld, the locus of a struggle <strong>to</strong> determine the conditions<br />
and the criteria of legitimate membership and legitimate hierarchy, that is, <strong>to</strong> determine<br />
which properties are pertinent, effective and liable <strong>to</strong> function as capital so as <strong>to</strong><br />
generate the speci<strong>fi</strong>c pro<strong>fi</strong>ts guaranteed by the <strong>fi</strong>eld.” 74 However, as Faulkner wrote, “no<br />
battle is ever won… They are not even fought. The <strong>fi</strong>eld only reveals <strong>to</strong> man his own<br />
folly and despair, and vic<strong>to</strong>ry is an illusion of philosophers and fools.” 75 In the universi-<br />
The quotation clari<strong>fi</strong>es the fact that human behavior is not always rational and cannot be predicted in<br />
simple terms. Behavior can sometimes be inexplicable even <strong>to</strong> the ac<strong>to</strong>r.<br />
72 Robert M. Pirsig, Zen and the Art of Mo<strong>to</strong>rcycle Maintenance (New York: William Morrow 1974), 75.<br />
73 Marwick 1998, supra n. 28 at 11. (Inverted commas omitted.)<br />
74 Bourdieu 1988, supra n. 69 at 11.<br />
75 William Faulkner, The Sound and the Fury (London: Chat<strong>to</strong> and Windus 1931), 74.<br />
16
ty the scholar faces his or her “folly and despair” and is forced <strong>to</strong> <strong>fi</strong>nd a way <strong>to</strong> get<br />
along. Critical scholarship was not a calculated plot or conspiracy against the traditional<br />
scholarship, but an outcome of the changes in society, culture, and intellectual life, and<br />
of the drive of the scholars identifying themselves within the changed circumstances. In<br />
a sense, critical legal scholars were rebels against the system of law and legal scholarship,<br />
pursuing authenticity and self-realization.<br />
The <strong>fi</strong>nal problem concerns the placing of the his<strong>to</strong>rical reconstruction in<strong>to</strong> the<br />
comparison. In his study on the 1960s student radicalism in America, Seymour Lipset<br />
writes that “[a]ny effort <strong>to</strong> interpret the changing political behavior of American students<br />
in recent years is subject <strong>to</strong> the dif<strong>fi</strong>culty that it is dealing with a local aspect of a<br />
worldwide phenomenon.” 76 This is a problem I am facing <strong>to</strong>o, because the rise of critical<br />
legal scholarship was a common phenomenon in the western world in the 1960s and<br />
1970s, meaning that I am also dealing with particular aspects of a universal phenomenon.<br />
In a comparative analysis, the his<strong>to</strong>rical reconstruction of critical legal scholarship<br />
has <strong>to</strong> be situated in the various contexts. The comprehensive perspective and the comparisons<br />
that follow will help us <strong>to</strong> understand the essence of the critical scholarship.<br />
5 Critical legal scholarship of the 1960s and 1970s in legal his<strong>to</strong>ry<br />
As we saw, CLS has been subjected <strong>to</strong> a vast amount of literature. However, it deals<br />
mainly with its theory, and the studies on the his<strong>to</strong>ry of the movement are rather fragmentary<br />
and partial accounts. I will thus provide a comprehensive account of the his<strong>to</strong>ry<br />
of CLS as well as of critical legal scholarship in the Nordic Countries. At the moment,<br />
the most comprehensive account of the his<strong>to</strong>rical origins of CLS seems <strong>to</strong> be Neil<br />
Duxbury’s, 77 who has analyzed the new left and the scholarly origins of the movement.<br />
In addition, <strong>to</strong> mention a few, there is a detailed account of the people and their relationships<br />
in the founding of the Conference on Critical Legal Studies, 78 various studies on<br />
the intellectual origins of the movement, 79 and a sketch for a political his<strong>to</strong>ry. 80 The<br />
development of the movement has also been explained against the context of the law<br />
76 Seymour Martin Lipset, Rebellion in the University: A His<strong>to</strong>ry of Student Activism in America (London:<br />
Routledge & Kegan Paul 1972), 3. (Footnote omitted.)<br />
77 Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press 1995), 421–509.<br />
78 Schlegel 1984, supra n. 62.<br />
79 Mark Tushnet, Critical Legal Studies: An Introduction <strong>to</strong> its Origins and Underpinnings, 36 Journal of<br />
Legal Education 505–517 (1986); G. Edward White, The Inevitability of Critical Legal Studies, 36 Stanford<br />
Law Review 649–672 (1984); White 1987, supra n. 59; Stuart J. Russell, The Critical Legal Studies<br />
Challenge <strong>to</strong> Contemporary Mainstream Legal Philosophy, 18 Ottawa Law Review 1–24 (1986). A comprehensive<br />
analysis on the theoretical basis of CLS literature is David Kennedy, Critical Theory, Structuralism<br />
and Contemporary Critical Scholarship, 21 New England Law Review 209–289 (1985). Theoretical<br />
aspects of some CLS literature are analyzed in detail in Donald F. Brosnan, Serious But Not Critical,<br />
60 Southern California Law Review 259–396 (1987).<br />
80 Tushnet 1991, supra n. 60.<br />
17
school of the 1960s, 81 the rise of the leftist faculty in the 1970s, 82 as a radical academic<br />
enterprise, 83 in its epistemological context, 84 and as a movement <strong>to</strong>ward a new construction<br />
of reason in law. 85 Important preliminary studies on the institutional 86 and jurisprudential<br />
87 context of the development of CLS have also appeared. There are also several<br />
general introductions <strong>to</strong> CLS theory which often take a stand on the his<strong>to</strong>rical development<br />
of the movement in one way or another. 88 In addition <strong>to</strong> the reconstruction of the<br />
his<strong>to</strong>ry of CLS, this study is a synthesis of the previous literature.<br />
With respect <strong>to</strong> Scandinavia and Finland, the situation is quite different because<br />
there seem <strong>to</strong> be relatively few studies on the subject. A valuable collection of au<strong>to</strong>biographical<br />
essays by the scholars who participated in the critical scholarship has been<br />
published, 89 but it seems that no comprehensive study has been done. There is a short<br />
but informative introduction <strong>to</strong> Scandinavian Marxist legal scholarship, 90 a good account<br />
of the theories of Danish critical legal scholarship, without a his<strong>to</strong>rical analysis<br />
however, 91 and general introductions <strong>to</strong> the critical legal scholarship 92 and the legal science<br />
of the time. 93 The Finnish legal culture of the 1960s and 1970s has been thorough-<br />
81 Binder 1987, supra n. 62.<br />
82 Nathan Glazer, Marxism and the Law School: A Nonlegal Perspective, 8 Harvard Journal of Law and<br />
Public Policy 249–253 (1985); Maurice J. Holland, A Hurried Perspective on the Critical Legal Studies<br />
Movement: The Marx Brothers Assault the Citadel, 8 Harvard Journal of Law and Public Policy 239–247<br />
(1985).<br />
83 Cardarelli & Hicks 1993, supra n. 67.<br />
84 Williams 1987, supra n. 57.<br />
85 Boyle 1985, supra n. 57.<br />
86 Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: The University<br />
of North Carolina Press 2005), 281–291.<br />
87 Kalman 1996, supra n. 22 at 82–88.<br />
88 As will be seen later, there is no theory of CLS, but rather a range of various theories. There is a tremendous<br />
amount of literature on CLS. The most comprehensive account of the theory of CLS is Kelman<br />
1987, supra n. 23, but its interpretation of the theory has been contested. (Richard Michael Fischl, The<br />
Question that Killed Critical Legal Studies, 17 Law & Social Inquiry 779–820 (1992)). A good one is also<br />
Minda 1995, supra n. 58 at 106–127, who links CLS <strong>to</strong> the postmodern tradition of late twentieth-century<br />
scholarship. See also Boyle 1994 supra n. 64. For critical accounts on CLS, see, e.g., Andrew Altman,<br />
Critical Legal Studies: A Liberal Critique (Prince<strong>to</strong>n, New Jersey: Prince<strong>to</strong>n University Press 1990);<br />
Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review 413–<br />
464 (1984); Johnson 1984, supra n. 25; Foley 1987 supra n. 61. For an attempt <strong>to</strong> resurrect CLS from its<br />
criticism, see, e.g., Richard Michael Fischl, Some Realism About Critical Legal Studies, 41 University of<br />
Miami Law Review 505–532 (1987). For recent attempts <strong>to</strong> resuscitate CLS see E. Dana Neacsu, CLS<br />
Stands for Critical Legal Studies, if Anyone Remembers, 8 Journal of Law and Policy 415–453 (2000);<br />
Mo<strong>to</strong>aki Funakoshi, Taking Duncan Kennedy Seriously: Ironical Liberal Legalism, 15 Widener Law<br />
Review 231–287 (2009).<br />
89 Modéer & Sunnqvist (eds.) 2010, supra n. 53.<br />
90 Elwin & Vic<strong>to</strong>r (eds.) 1978, supra n. 24 at 173–184.<br />
91 Jørgen Dalberg-Larsen, Dansk rets<strong>fi</strong>loso<strong>fi</strong>: Udviklingslinjer og portrætter (København: Jurist- og<br />
Økonomforbundets forlag 2006), 85–183.<br />
92 See, e.g., Jørgen Dalberg-Larsen, Four Phases in the Development of Modern Legal Science, 23 Scandinavian<br />
Studies in Law 77, 97–101 (1979); Rune Slagstad, Norwegian Legal Realism Since 1945, 35<br />
Scandinavian Studies in Law 215–233 (1991). See also Jørgen Dalberg-Larsen, Retsvidenskab som samfundvidenskaben:<br />
Et retsteoretisk tema i his<strong>to</strong>risk og aktuel belysning (København: Juristforbundets forlag<br />
1977), 506–545.<br />
93 See, e.g., Stig Strömholm (ed.), Svensk rättsvetenskap, 1947–1997 (S<strong>to</strong>ckholm: Nordstedts juridik<br />
1997).<br />
18
ly examined, 94 and there are fragmentary notions about the critical legal scholarship of<br />
the 1960s and 1970s in a general introduction <strong>to</strong> the Finnish legal science of the twentieth<br />
century. 95 There are also several shorter comments on the debates on the nature and<br />
functions of legal scholarship in the 1960s and 1970s, 96 but a larger examination is lacking.<br />
Moreover, the characterizing feature of all of the literature is that it has been written<br />
by scholars with personal experiences of the time. A study from an outsider’s perspective<br />
is required <strong>to</strong> explore the critical scholarship without any personal biases. Whereas<br />
the his<strong>to</strong>ry of CLS needs a synthesis, the his<strong>to</strong>ry of Finnish and Scandinavian critical<br />
legal scholarship needs a complete reconstruction.<br />
As <strong>to</strong> the question of the his<strong>to</strong>rical analysis, my purposes are twofold. Regarding<br />
the United States, I will analyze and evaluate the previous studies on the his<strong>to</strong>ry of CLS<br />
in order <strong>to</strong> sort out whether they can be considered plausible. With respect <strong>to</strong> the Nordic<br />
Countries, on the other hand, I will conduct an authentic his<strong>to</strong>rical reconstruction and<br />
compare it <strong>to</strong> the analysis of CLS. The vast amount of literature on CLS seems <strong>to</strong> be<br />
based more on the personal intuition of the authors than a his<strong>to</strong>rical interpretation of the<br />
sources, and, furthermore, the writers always stress one fac<strong>to</strong>r over the others in explaining<br />
the rise of the movement. I, on the other hand, will conduct an extensive analysis<br />
of the original literature in order <strong>to</strong> provide a his<strong>to</strong>rical interpretation. I will also<br />
show that the best way <strong>to</strong> understand critical legal scholarship is <strong>to</strong> see it as a cultural<br />
movement, and not <strong>to</strong> reduce it <strong>to</strong> one single fac<strong>to</strong>r. It is one thing <strong>to</strong> have an opinion<br />
about something, whether based on personal experience or intuition, but quite another <strong>to</strong><br />
conduct thorough and authentic research on it. The same applies <strong>to</strong> the Nordic critical<br />
legal scholarship, but here the question is more about the fact that there are no previous<br />
studies. This book thus lays the foundation for his<strong>to</strong>rical analysis of critical scholarship.<br />
A purpose of this book is <strong>to</strong> examine whether the previous literature on CLS is correct<br />
and whether the several intuitions about the critical legal scholarship in the Nordic<br />
Countries actually hold true.<br />
In addition, there is no comparative his<strong>to</strong>ry between critical legal scholarship in<br />
the United States and Scandinavia, although there are few short articles focusing mostly<br />
on theoretical aspects and the scholarship of the 1980s. 97 Therefore, I will also create a<br />
94 Jukka Kekkonen, Suomen oikeuskulttuurin suuri linja 1898–1998 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys<br />
1998), 100–126.<br />
95 See Urpo Kangas (ed.), Oikeustiede Suomessa 1900─2000 (Juva: Werner Söderström Lakitie<strong>to</strong> 1998).<br />
See also Lars D. Eriksson, Mina Me<strong>to</strong>der, in Juha Häyhä (ed.), Minun me<strong>to</strong>dini (Porvoo: Werner Söderström<br />
Lakitie<strong>to</strong> 1997), 57–73; Antero Jyränki, Toiset työt, <strong>to</strong>iset me<strong>to</strong>dit, in Häyhä 1997 id. at 74–89.<br />
96 A good one is Jaakko Husa, Oikeustieteen suuresta tieteellisyyskeskustelusta: Julkisoikeudellinen näkökulma,<br />
Oikeus 1992, 367–380, which examines the various arguments on the paradigm of Finnish legal<br />
scholarship in 1960s and 1970s and provides a sketchy analysis for the context. The debates are also analyzed<br />
in various jurisprudential doc<strong>to</strong>ral dissertations of the 1970s. See, e.g., Eero Backman, Rikoslaki ja<br />
yhteiskunta I: Teoreettinen erittely rikosoikeuden tieteenkäsityksistä 1800-luvulla ja sen konkretisointi<br />
moraalin, uskonnon ja rikoslain suhteisiin Suomessa vuosina 1894─1917 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys<br />
1976), 1–14. See also the chapters on relevant scholars in Juha Pöyhönen (ed.), Suomalaista<br />
oikeusteoriaa I–II (<strong>Helsinki</strong>: Yleisen oikeustieteen lai<strong>to</strong>ksen julkaisuja 1977–1978).<br />
97 Juha Pöyhönen, The Critical Legal Studies Movement ─ yhdysvaltalaista vaih<strong>to</strong>eh<strong>to</strong>ista lainoppia,<br />
Oikeus 1984, 90─106; Martti Koskenniemi, Superliberalismin oikeusteoriaa, Oikeus 1987, 303─307;<br />
19
comparative his<strong>to</strong>ry through the reconstruction of the his<strong>to</strong>rical development of critical<br />
legal scholarship in the United States, Scandinavia, and Finland in the 1960s and 1970s.<br />
The comparative analysis will provide fruitful insights in<strong>to</strong> the nuances of and the similarities<br />
and differences between the movements.<br />
The his<strong>to</strong>riography of the 1960s has been placed under revision in the twenty-<strong>fi</strong>rst<br />
century. Various studies have, for instance, pointed out that the civil rights movements<br />
were not systematic strategies aiming at civil rights and that there were activists outside<br />
the major organizations. 98 Regarding the New Left, the revision argues that the radicalism<br />
of the 1960s should not be reduced <strong>to</strong> the New Left because the protest movement<br />
was diversi<strong>fi</strong>ed and broad phenomenon consisting of various groups. 99 In a certain<br />
sense, this study is also a revision, because the point is <strong>to</strong> show that even if the 1960s<br />
was a major break from the tradition, it did not come out of nothing but was rather a<br />
culmination of a long process after the war. The dynamics of change intensi<strong>fi</strong>ed considerably<br />
in the 1960s. Critical legal scholarship arose out of a long process in which the<br />
1960s and 1970s were the most signi<strong>fi</strong>cant decades, and it <strong>to</strong>o was a diversi<strong>fi</strong>ed phenomenon.<br />
For example, CLS radicalized the previous critical notions partly because<br />
civil rights activism was frustrated, the critical scienti<strong>fi</strong>c consciousness increased, and<br />
the scholars wanted <strong>to</strong> create a new critical legal theory.<br />
A further problem confronting any study focusing on relatively recent occurrences<br />
is that of distance. The 1960s was relatively short time ago, and it is therefore not easy<br />
<strong>to</strong> <strong>fi</strong>nd the right distance from the subject. Moreover, there are people among us who<br />
experienced those times. The his<strong>to</strong>ry of the critical legal scholarship of the 1960s and<br />
1970s is largely written by people with personal experience of the issue, and who will<br />
often be skeptical about the re-interpretations of that decade. 100 In aiming at a his<strong>to</strong>rical<br />
reconstruction, one has <strong>to</strong> bear in mind the brief time that has elapsed since the 1960s,<br />
the presence of the people who made the decade, and the presence of the ideas emanating<br />
from those days. It is easy <strong>to</strong> glorify the sixties as a golden age in which the young<br />
challenged the establishment and created the modern world, but it is just as easy <strong>to</strong> picture<br />
the radicalism as a pointless rebellion of privileged youngsters with nothing better<br />
<strong>to</strong> do than <strong>to</strong> rebel just for the sake of it. 101 The sixties were a complex decade and it<br />
should be treated neither with nostalgia nor the criticism of hindsight. Only a comprehensive<br />
analysis that includes a variety of perspectives will do justice <strong>to</strong> the subject. By<br />
Kaarlo Tuori, Vaih<strong>to</strong>eh<strong>to</strong> vai kritiikki, suppea vai laajennettu doktriini? in Ari Hirvonen & Kaarlo Tuori<br />
(eds.), Oikeus, kieli ja kritiikki (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong>n julkisoikeuden lai<strong>to</strong>ksen julkaisuja 1990),<br />
49 97.<br />
98 Laura Kalman, Introduction, 26 Law and His<strong>to</strong>ry Review 319, 320–322 (2008).<br />
99 John McMillian, “You Didn’t Have <strong>to</strong> Be There”: Revisiting the New Left Consensus, 6, in McMillian<br />
and Buhle (eds.) 2003, supra n. 5 at 1–8. On his<strong>to</strong>ricizing the radicalism of the 1960s in Europe, see Axel<br />
Schildt and Detlef Siegfried (eds.), Between Marx and Coca-Cola: Youth Cultures in Changing European<br />
Societies, 1960─1980 (New York: Berghahn Books 2006).<br />
100 Kevin Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism, 1945–<br />
1970 (University Park, Pennsylvania: The Pennsylvania State University Press 2002), 4; Tuominen 1997,<br />
supra n. 5 at 3.<br />
101 See, e.g., Marwick 1998, supra n. 28 at 3–4, 8–10.<br />
20
situating critical legal scholarship within a detailed and comprehensive his<strong>to</strong>rical analysis,<br />
we can obtain a his<strong>to</strong>rical perception of it and understand it in a proper context.<br />
Even if I do not examine its theoretical merits, the his<strong>to</strong>rical reconstruction will provide<br />
a more detailed and nuanced understanding of the critical legal scholarship in its early<br />
phase and help us <strong>to</strong> comprehend the underpinnings and purposes of the critical theory.<br />
102 The hypotheses of this book are as follows. Critical legal scholarship of the 1960s<br />
and 1970s is best unders<strong>to</strong>od as a cultural phenomenon that comprehends all of the aspects<br />
of the time. It should not be reduced <strong>to</strong> a single fac<strong>to</strong>r, such as political activism,<br />
scholarly renewal, or academic radicalism. Critical legal scholarship was all of these<br />
combined, a cultural phenomenon that drew all these elements in, the most important<br />
fac<strong>to</strong>r being different for every scholar. The epistemological difference between the<br />
traditional view and the critical view was, however, the one aspect that covered all the<br />
others and was common <strong>to</strong> all scholars. The basic premises of critical legal scholarship<br />
were the same in the United States as in the Nordic Countries, but the differences in<br />
theories and argumentation varied depending on the local social, political, and scholarly<br />
circumstances. The approaches <strong>to</strong> legal problems were nonetheless the same.<br />
Common aspects in all of the countries studied here were the rise of leftist thought,<br />
the focus on the rights of the citizen, criticism of the social and economic order, the expansion<br />
of the methods of legal scholarship, the social and political orientation of scholarship,<br />
and the division of the academy in<strong>to</strong> the traditional and the critical blocs. All<br />
these were apparent in the rise of the critical legal scholarship of the 1960s. At the beginning,<br />
critical legal scholarship was socially oriented jurisprudence that endeavored <strong>to</strong><br />
reveal social problems and provide arguments for reform. Later it transformed in<strong>to</strong> a<br />
philosophical criticism of legal scholarship, law, and society. The political aspect, the<br />
pursuit of change in society, never vanished, always remaining in the deep structures of<br />
the critical scholarship.<br />
The biggest differences were that the critical legal scholarship of the 1970s in the<br />
United States kept most distance from the sociological jurisprudence of the 1960s and<br />
turned more <strong>to</strong>ward a philosophical criticism of doctrine. In the Nordic Countries, critical<br />
legal scholarship remained closer <strong>to</strong> sociological and empirical jurisprudence than in<br />
the United States, even if there also the 1970s marked a turn <strong>to</strong>ward a more theoretical<br />
102 Although this is not a book on legal theory, the his<strong>to</strong>rical analysis will also illuminate the theoretical<br />
aspects and thus help <strong>to</strong> understand the theory of critical jurisprudence. This is also needed since beyond<br />
the experts on legal theory, the general image of CLS in Finland seems <strong>to</strong> be somewhat simpli<strong>fi</strong>ed. See,<br />
e.g., Anne Alvesalo, Critical Legal Studies: Kriittinen lähestymistapa oikeuteen (<strong>Helsinki</strong>: Kauppakaari<br />
Oy ─ Lakimieslii<strong>to</strong>n kustannus 1997). The book is the most comprehensive analysis of CLS in Finnish<br />
thus far, providing a good introduction <strong>to</strong> the <strong>to</strong>pic. However, because of its heavy reliance on secondary<br />
sources and slight use of primary sources, it gives a rather simple and caricaturized image of the movement,<br />
merely repeating what have been said in other studies and lacking an original perspective. A Finnish<br />
reader may thus begin with this but is advised <strong>to</strong> look for further studies as well. My book will hopefully<br />
encourage more Finnish scholars <strong>to</strong> familiarize themselves with the original literature of CLS in<br />
order <strong>to</strong> understand it as an alternative theory of law. On the other hand, critical legal scholarship in the<br />
Nordic Countries lacks a systematic presentation, and my his<strong>to</strong>rical account will provide a useful insight<br />
in<strong>to</strong> the theory as well.<br />
21
criticism of law. And during the 1970s, scholars began more explicitly <strong>to</strong> explore the<br />
possibilities of Marxism in legal scholarship. Sociology of law eventually diverged in<strong>to</strong><br />
an individual discipline. The critical legal scholarship in Finland was closest <strong>to</strong> political<br />
radicalism.<br />
6 The structure of the study<br />
The time frame of this study is from the mid-1960s till the end of the 1970s. I will not<br />
examine the critical legal scholarship that preceded the radical scholarship emerging in<br />
the latter part of the 1960s or the development of critical and alternative legal scholarship<br />
in the 1980s in any detail. A study that dealt with the alternative legal scholarship<br />
of the United States, Finland, and Scandinavia from the end of the Second World War<br />
<strong>to</strong> the beginning of the twenty-<strong>fi</strong>rst century would require volumes. Thus, in order <strong>to</strong><br />
keep the book a <strong>to</strong>lerable length I will have <strong>to</strong> be strict with the time exclusions.<br />
The structure of the study is as follows. Before going in<strong>to</strong> the actual study, I shall<br />
take a short and sketchy look at the his<strong>to</strong>ry of legal thought in the United States and the<br />
Nordic Countries because an understanding of this helps the analysis. I shall also take a<br />
quick look at the social, cultural, and scienti<strong>fi</strong>c development of the postwar world in<br />
order <strong>to</strong> understand the his<strong>to</strong>rical context of the development of critical legal scholarship.<br />
In chapters three, four, and <strong>fi</strong>ve, the main chapters of the book, I shall reconstruct<br />
the development of critical legal scholarship in the United States, Scandinavia, and Finland<br />
respectively. The three main chapters are rather individual because this is the easiest<br />
way for the reader <strong>to</strong> understand the his<strong>to</strong>ry of the movements. The chapters can also<br />
be used separately as guides <strong>to</strong> the his<strong>to</strong>ries of the critical movements in these countries.<br />
First, in chapter three, I will examine the his<strong>to</strong>ry of CLS, exploring the social and<br />
legal turbulence of the 1960s and analyzing the law school context in which the critical<br />
mood was developed. We shall see how students unsatis<strong>fi</strong>ed with legal education, growing<br />
up in a culturally, scienti<strong>fi</strong>cally, and socially unstable atmosphere, adopted an alternative<br />
perspective on law and, by applying various theories, elaborated a critical view<br />
that eventually came <strong>to</strong> be known as the critical legal studies movement. The movement<br />
radicalized the preceding criticism, established a distance from the empirical underpinnings<br />
of alternative legal scholarship, and developed in<strong>to</strong> a complete philosophical criticism<br />
of law.<br />
The examination of the his<strong>to</strong>ry of CLS and the analysis of the literature on the subject<br />
will function as a basis for the his<strong>to</strong>rical reconstruction of critical legal scholarship<br />
in the Nordic Countries. Thus, after reviewing its his<strong>to</strong>ry, I will examine the critical<br />
legal scholarship in the Nordic Countries. In chapter four, I will examine the development<br />
of Scandinavian critical legal scholarship. We shall see that the postwar legal<br />
world inherited a methodological eclecticism and a sociological view of legal scholarship,<br />
and that these were blended with a new sociological approach that was very influ-<br />
22
ential in criminology. The 1960s thus witnessed a rise in sociology of law, critical criminology,<br />
and eventually critical legal scholarship, which developed in<strong>to</strong> Marxist legal<br />
scholarship in the 1970s. Chapter four is less detailed and more general than chapters<br />
three and <strong>fi</strong>ve.<br />
Third, in chapter <strong>fi</strong>ve, I explore the development of the Finnish critical legal<br />
scholarship. We will see that Finnish legal scholarship in general was more traditional<br />
and less realist than in Scandinavia, but alternative views became more common in the<br />
1960s. Hence, Finland in the late 1960s witnessed a radical attack on the traditional legal<br />
scholarship, an attack that was more radical than in the other countries at the same<br />
time. In Finland, <strong>to</strong>o, sociological jurisprudence and critical criminology in particular,<br />
as well as a critical discourse on the purposes and functions of legal scholarship and<br />
education emerged in the 1960s. In the 1970s, the theoretical basis of critical scholarship<br />
became re<strong>fi</strong>ned and the critical movement <strong>to</strong>ok more organized forms. By the end<br />
of the decade, however, the radical <strong>to</strong>ne of the criticism was attenuated.<br />
Fourth and <strong>fi</strong>nally, chapter six will compare the development of critical legal<br />
scholarship of the countries concerned and summarize and conclude the study. The<br />
comparative analysis is rather general and abstract, but it provides productive insights<br />
in<strong>to</strong> the “essence” of critical legal scholarship, which the theoretical aspect will also<br />
illuminate. It will be shown below that critical legal scholarship of the 1960s and 1970s<br />
was a complex phenomenon consisting of social, political, cultural, scienti<strong>fi</strong>c, academic,<br />
and legal fac<strong>to</strong>rs; it was an effort of scholars realizing themselves, their scholarship, and<br />
their position within it at the intersection between these <strong>fi</strong>elds, and doing their best <strong>to</strong><br />
achieve something in life. Critical legal scholarship was therefore not simply a reflection<br />
of the social changes of the sixties but also a philosophical and cultural movement<br />
and a form of academic criticism and antagonism. Some scholars later gave up the critical<br />
enterprise whereas others continued, the reasons for this being just as diversi<strong>fi</strong>ed as<br />
the reasons for adopting the critical attitude in the <strong>fi</strong>rst place. The end of the s<strong>to</strong>ry, however,<br />
goes beyond the scope of this book and will not be dealt with in any detail. Nevertheless,<br />
there was no “rise and fall” of critical legal scholarship, even if it lost much of<br />
its popularity in the eighties and nineties, earlier in Scandinavia than in the United<br />
States. Many of the themes of the critical legal scholarship have continued <strong>to</strong> our time,<br />
even if not on a major scale. In a sense, critical legal scholarship became domesticated<br />
and absorbed in<strong>to</strong> the traditional scholarship, and has become a part of the tradition.<br />
The his<strong>to</strong>rical reconstruction aims at understanding the rise and the substance of<br />
critical legal scholarship without evaluating its signi<strong>fi</strong>cance. Thus, words such as reformist,<br />
progressive, conservative, and traditional bear no reference <strong>to</strong> any value except<br />
those in the eye of the beholder. Reformist and progressive simply mean that one prefers<br />
change <strong>to</strong> tradition and, accordingly, <strong>to</strong> call someone traditional or conservative<br />
refers only <strong>to</strong> the preference for tradition, nothing more. Nevertheless, since books do<br />
belong <strong>to</strong> the reader as much as they belong <strong>to</strong> the author, the pages that follow are also<br />
meant <strong>to</strong> provoke, stimulate the reader <strong>to</strong> think and, despite whether he or she agrees or<br />
disagrees with them, <strong>to</strong> encourage a search for the truth. As <strong>to</strong> whether the “truth” is an<br />
23
objective or rather a socially constructed concept 103 is not a concern of this study. In<br />
order <strong>to</strong> do justice <strong>to</strong> the subject, however, one has <strong>to</strong> aim at the truth.<br />
103 On the problem of “truth” as an objective concept or something relating <strong>to</strong> power, see Michel Foucault,<br />
Truth and Power, 67–75, in Paul Rabinow (ed.), The Foucault Reader (New York: Vintage Books<br />
2010), 51–75.<br />
24
II Background<br />
1 Introduction<br />
In this chapter we shall take a look at the his<strong>to</strong>rical origins of the critical legal scholarship<br />
of the 1960s and 1970s. I will provide an outline of the development of legal<br />
thought and society in the United States and the Nordic Countries. As will become obvious<br />
later, the critical legal scholarship of the 1960s and 1970s and the differences between<br />
the movements in the different countries have <strong>to</strong> be unders<strong>to</strong>od in the context of<br />
the his<strong>to</strong>ry of scholarship, culture, and society. Because the critical legal scholarship of<br />
the 1960s originated within a his<strong>to</strong>rical process, we need <strong>to</strong> understand the forces of<br />
change in scholarship in order <strong>to</strong> understand the dynamics within which the critical<br />
scholars grew up and acquired their scholarly identity.<br />
The chapter runs as follows. In the second section I will briefly review the his<strong>to</strong>ry<br />
of American legal thought, and in the third section I shall provide an outline of the his<strong>to</strong>ry<br />
of Scandinavian jurisprudence. In the last section, I will take a brief look at the social,<br />
cultural, and scienti<strong>fi</strong>c currents that followed the aftermath of the Second World<br />
War. These years witnessed many changes, when new forms of scholarship were developed<br />
and older forms elaborated. The development of the New Left changed the political<br />
arena, and the development of the youth culture and counter-culture changed culture<br />
and society. The short sections below will provide a general understanding of the context<br />
of the world of the 1960s so that we can begin the more detailed account of critical<br />
legal scholarship.<br />
The descriptions of the his<strong>to</strong>ries of legal thought that follow are inevitably<br />
sketchy, general, and rather conventional. Although there were no pendulum swings in<br />
legal thought, 1 the focus will be on the changes, as well as on the general “schools”,<br />
even if the jurisprudential theories represented various scholars with differences in opinion<br />
and approach. 2 The characterizations of the main the trends simply help us <strong>to</strong> understand<br />
the development of the legal thought.<br />
1 Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press 1995), 2.<br />
2 N.E.H. Hull, Networks & Bricolage: A Prolegomenon <strong>to</strong> a His<strong>to</strong>ry of Twentieth Century American<br />
Academic Jurisprudence, 35 American Journal of Legal His<strong>to</strong>ry 307, 308–310 (1991). Hull points out that<br />
categorizing may dis<strong>to</strong>rt our images of the theories and, furthermore, that scholars often put old ideas <strong>to</strong><br />
new uses.<br />
25
2 A his<strong>to</strong>ry of legal thought in the United States<br />
American law originates from European law, mostly from the English common law that<br />
was adapted <strong>to</strong> the colonies during the seventeenth and eighteenth centuries. The intellectual<br />
background of legal thought followed the natural law theory and enlightenment<br />
philosophy, which gained their most explicit expression in the revolutionary ardor of the<br />
late eighteenth century. The backbone of American legal thought was thus engraved in<br />
the Declaration of Independence, the Constitution, and the political writings of the<br />
founding fathers. 3 The early nineteenth century was a time of growing enterprise and the<br />
rise of capitalism, which were reflected in the changes in law. As the new republic <strong>to</strong>ok<br />
its <strong>fi</strong>rst steps as an independent nation, the common law was Americanized and adapted<br />
<strong>to</strong> the new constitutional order, and the modern legal doctrines and the legal profession<br />
were established. 4<br />
Legal thought began <strong>to</strong> take a modern shape in the late nineteenth century. This<br />
was in general a time of massive economic expansion, urbanization, and labor union<br />
activity. 5 It was also the time of legal formalism, which involved both the academic<br />
scholarly tradition of conceptualizing law and the laissez faire constitutionalism of the<br />
judiciary. 6 Academic legal scholarship began in the 1870s when the dean of Harvard<br />
Law School, C.C. Langdell, developed the case method <strong>to</strong> suit the purposes of legal<br />
education. 7 Formalism in this sense meant a scienti<strong>fi</strong>c conception of law. Langdell’s<br />
purpose was <strong>to</strong> create a teaching method for academic legal education. He elaborated a<br />
conception of law as a scienti<strong>fi</strong>c discipline which constructed fundamental legal principles<br />
from which neutral and logical solutions <strong>to</strong> particular cases could be derived<br />
through Socratic logic. 8 The formalism of the case method instilled the modern notion<br />
of neutrality and rationality in<strong>to</strong> American legal thought. Even if the formalists of the<br />
late nineteenth century did not consider law simply as a comprehensive system of ab-<br />
3 G. Edward White, Law in American His<strong>to</strong>ry, Volume 1: From the Colonial Years Through the Civil<br />
War (New York: Oxford University Press 2012), 16–108; Stephen M. Feldman, American Legal Thought<br />
from Premodernism <strong>to</strong> Postmodernism: An Intellectual Voyage (New York: Oxford University Press<br />
2000), 49–50.<br />
4 Lawrence M. Friedman, A His<strong>to</strong>ry of American Law (Third Edition, New York: Touchs<strong>to</strong>ne 2005),<br />
105–249.<br />
5 Id. at 254.<br />
6 Duxbury 1995, supra n. 1 at 11. American late nineteenth-century jurisprudence has been called “formalism”,<br />
“classical legal thought”, “legal classicism”, and “legal orthodoxy”. (William Wiececk, The<br />
Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford<br />
University Press 1998), 3). I have decided <strong>to</strong> use the word formalism despite its negative connotations.<br />
On the various uses of the word “formalism”, see Frederick Schauer, Formalism, 97 Yale Law Journal<br />
509–548 (1988). Laissez faire constitutionalism means that the courts, particularly the U.S. Supreme<br />
Court, invalidated legislation that constrained the liberty of private persons.<br />
7 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York: New<br />
York University Press 1995), 13.<br />
8 Duxbury 1995, supra n. 1 at 15–25; Minda 1995, supra n. 7 at 13–16: Wiecek 1998, supra n. 6 at 79–<br />
122; Robert Stevens, Law School: Legal Education in America from the 1850s <strong>to</strong> the 1980s (Chapel Hill:<br />
The University of North Carolina Press 1983), 52–54; Feldman 2000, supra n. 3 at 91–94.<br />
26
stract principles from which one could logically deduce the correct solution <strong>to</strong> every<br />
case in an absolutely neutral and rational way, 9 they signi<strong>fi</strong>cantly strengthened the idea<br />
of legal reasoning as logic rather than rhe<strong>to</strong>ric, which has since dominated American<br />
legal thought.<br />
The formalism of the judiciary meant a rigid judicial review of the constitutionality<br />
of legislation in order <strong>to</strong> preserve the fundamental principles of the Constitution. The<br />
main trend was <strong>to</strong> protect the freedom, liberty, and equality of the citizen, and thus <strong>to</strong><br />
minimize all kinds of redistribution. The courts also sought <strong>to</strong> maintain a strict division<br />
between the state powers, as well as between the federal and the state governments. 10<br />
The formalist legal reasoning and the idea of the fundamental legal concepts converged<br />
in the laissez faire practice of the courts, abandoning instrumental reasoning and approaching<br />
legal problems as questions of fundamental principles and categories. Law<br />
and politics thus became detached both at the practical and the scholarly level.<br />
The basis of American legal thought and scholarship was established in the late<br />
nineteenth century. Whether formalism originated in the desire <strong>to</strong> create an academic<br />
science of law, 11 the efforts of the courts <strong>to</strong> protect and preserve the economic and political<br />
ideals, 12 the morals and ideologies of the legal profession, 13 or even the ante-bellum<br />
slavery cases, 14 it was a modern way <strong>to</strong> understand and teach law, providing a rational<br />
basis for legal reasoning that conformed <strong>to</strong> the values and ideals of society. Moreover, it<br />
gave a permanent characteristic <strong>to</strong> American legal thought. As Robert Stevens has noted,<br />
“[t]he lasting influence of the case method was <strong>to</strong> transfer the basis of American<br />
legal education from substance <strong>to</strong> procedure and <strong>to</strong> make the focus of American legal<br />
scholarship ─ or at least legal theory ─ increasingly one of process rather than doctrine.”<br />
15 Case method has persisted as the dominant teaching method <strong>to</strong> our days, and it<br />
has molded American legal thought extensively. Whereas the modern doctrines of<br />
9 Brian Tamanaha has recently argued that the formalists held many realist notions. (Brian Z. Tamanaha,<br />
Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Price<strong>to</strong>n: Prince<strong>to</strong>n University<br />
Press 2010).) Although many of his arguments are convincing, he seems <strong>to</strong> put <strong>to</strong>o much emphasis on the<br />
details and forget the big picture. The formalists of the nineteenth century were not formalist in the extreme<br />
sense but they did realize the fact that courts make law and legal reasoning is not purely logic.<br />
However, they sought <strong>to</strong> depict it in as rational terms as possible, and thus push the balance within legal<br />
reasoning in a more formal direction. Thus, even if Tamanaha’s book is excellent in clarifying the formalist-realist<br />
divide, he seems <strong>to</strong> have a rather narrow conception of realism in focusing simply on the aspects<br />
of adjudication, apparently giving <strong>to</strong>o much weight <strong>to</strong> details without placing them in their his<strong>to</strong>rical<br />
context, and he seems <strong>to</strong> have a narrow conception of “balanced realism”, because he seems <strong>to</strong> ignore<br />
the fact that one can be more realist or formalist in balanced realism depending on how much weight one<br />
puts on either the process or the substance of adjudication.<br />
10 Michael Les Benedict, Laissez Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez<br />
Faire Constitutionalism, 3 Law and His<strong>to</strong>ry Review 293, 327–331 (1985); Matthew J. Lindsay, In<br />
Search of “Laissez Faire Constitutionalism”, 123 Harvard Law Review Forum 55, 70–77 (2010).<br />
11 Thomas C. Grey, Langdell’s Orthodoxy, 45 University of Pittsburgh Law Review 1–45 (1983).<br />
12 Benedict 1985, supra n. 10.<br />
13 Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court,<br />
1860–1910 (DeKalb, Illinois: Northern Illinois University Press 2004).<br />
14 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University<br />
Press 1975).<br />
15 Stevens 1983, supra n. 8 at 56.<br />
27
American law were basically created during the <strong>fi</strong>rst part of the nineteenth century, the<br />
basis of modern legal thought and jurisprudence were created during the latter half.<br />
As the nation grew wealthier and the working class and other non-elite groups of<br />
society became stronger, the old order of the previous century faced a serious threat.<br />
This was the beginning of the progressive era. The conflicts between the old and the<br />
new ways of thinking were seen in the rise of sociological jurisprudence and in the criticism<br />
of certain Supreme Court decisions that were seen <strong>to</strong> represent the unrealistic formalism<br />
of the nineteenth century, 16 the most no<strong>to</strong>rious decision being Lochner v. New<br />
York. 17 In this case, the court invalidated a maximum hours law for bakery workers because<br />
it violated the liberty of contract and because bakery work was not considered <strong>to</strong><br />
be in need of public protection. A central argument of the sociological jurisprudence of<br />
the early twentieth century, as articulated by Roscoe Pound, was that law was a social<br />
instrument and hence was <strong>to</strong> be studied and taught accordingly. 18 Since Pound drew<br />
heavily on German jurisprudence, 19 his criticism probably followed the critical thought<br />
of the time more than the legal reality, but it nevertheless reflected the social, political,<br />
and legal tensions.<br />
A broader attack on the traditional legal scholarship and law emerged after the<br />
First World War. The 1920s produced a major economic growth. Legal scholars responded<br />
<strong>to</strong> the changed circumstances by encouraging empirical legal research, particularly<br />
in the law schools of Columbia and Yale. This empirical research led <strong>to</strong> the emergence<br />
of the jurisprudential school, or mood as Neil Duxbury calls it, which was <strong>to</strong> be<br />
known as American legal realism. 20 Legal realism was another effort <strong>to</strong> attack the traditional<br />
paradigm and initiate a program of legal scholarship that would bring law and<br />
legal research closer <strong>to</strong> social reality. It was not a uniform theory, but an approach <strong>to</strong><br />
law including various aspects. At the heart of realism was criticism of traditional jurisprudence<br />
and adjudication. The realists argued that the notion of adjudication as neutral,<br />
rational, and apolitical was unfounded because law was political from the beginning<br />
and, furthermore, the biases of the judges had a considerable impact on judicial decision-making.<br />
Thus, they concluded, there was no legal certainty because rules could be<br />
16 G. Edward White, From Sociological Jurisprudence <strong>to</strong> Realism: Jurisprudence and Social Change in<br />
Early Twentieth-Century America, 58 Virginia Law Review 999, 1000–1012 (1972). On the jurisprudence<br />
and the Supreme Court in the early twentieth-century America in general, see Stephen A. Siegel,<br />
Lochner Era Jurisprudence and the American Constitutional Tradition, 70 North Carolina Law Review 1–<br />
111 (1991); Paul Kens, The Source of a Myth: Police Powers of the States and Laissez Faire Constitutionalism,<br />
1900–1937, 35 American Journal of Legal His<strong>to</strong>ry 70–98 (1991); Aviam Soifer, The Paradox<br />
of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921, 5 Law and<br />
His<strong>to</strong>ry Review 249–279 (1987). See also David E. Bernstein, Lochner's Legacy's Legacy, 82 Texas Law<br />
Review 1–64 (2003).<br />
17 Lochner v. New York, 198 U.S. 45 (1905). Lochner is indeed one of the most controversial decisions in<br />
the legal his<strong>to</strong>ry of the United States. For a synthesis and revision of the case and the scholarship on it,<br />
see Bernstein 2003, supra n. 16.<br />
18 Roscoe Pound, The Need of a Sociological Jurisprudence, 19 Green Bag 607–615 (1907).<br />
19 James E. Herget, The Influence of German Thought on American Jurisprudence, 1880–1918, 221–227,<br />
in Mathias Reinmann (ed.), The Reception of Continental Ideas in the Common Law World, 1820–1920<br />
(Berlin: Duncker & Humblot 1993), 203–228.<br />
20 Duxbury 1995, supra n. 1 at 79–93.<br />
28
applied <strong>to</strong> provide conflicting results. 21 The realists thus criticized the ideal that legal<br />
reasoning could produce logical conclusions from principles without being affected by<br />
any extra-legal fac<strong>to</strong>rs.<br />
In addition <strong>to</strong> the critical aspect, there was also a more constructive, reformist aspect<br />
of realism. As was the case with the critical notion, a basic tenet was also <strong>to</strong> bring<br />
law and society in <strong>to</strong>uch with each other. The problem was not so much that law was<br />
political, but rather that it ought <strong>to</strong> pursue different kinds of political aims. Legal realism<br />
was also a project of integrating empirical social sciences in<strong>to</strong> legal scholarship <strong>to</strong><br />
provide data for progressive legal reforms, 22 and of changing legal education and its<br />
academic context <strong>to</strong> create lawyers as social engineers. 23 In this respect, it followed the<br />
sociological jurisprudence of the early century 24 but was more critical and a more general<br />
movement. Realism was not simply legal criticism, but a mood, an approach <strong>to</strong> law<br />
that sought <strong>to</strong> strip away the myths and create an instrumental concept of law that could<br />
promote particular political goals. It was an enterprise of adjusting legal scholarship <strong>to</strong><br />
the forms of society, the economy, and scholarship of the early twentieth century.<br />
Besides realism, the inter-war era also marked a more general change in legal<br />
thought. Although the origins of realism were in the prosperous times of the 1920s, its<br />
ideas achieved new purposes with the great depression of the 1930s and in New Deal<br />
politics. Although the connection between realism and the New Deal is problematic and<br />
sporadic at best, many of the realists did <strong>fi</strong>nd a place in the Roosevelt administration<br />
during the depression years. 25 The Great Depression and its treatment required a political<br />
conception of law that could be used as an instrument <strong>to</strong> put the wounded economy<br />
back on track and help the nation back <strong>to</strong> the path of prosperity. Even if the realists of<br />
the law schools were not the architects of the New Deal, the ideas of the new politics<br />
and legal scholarship coalesced.<br />
Thus, the origins of the modern regula<strong>to</strong>ry state and legal liberalism emerged in<br />
the late 1930s. The Supreme Court withdrew from the formalism of the laissez faire<br />
notions and began <strong>to</strong> uphold economic regulation by refraining from reviewing the purposes<br />
of legislation and paying attention instead <strong>to</strong> its factual circumstances. The reasons<br />
for the change of the Supreme Court may have been the political turbulence or in<br />
21 Mor<strong>to</strong>n J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy<br />
(New York: Oxford University Press 1992), 193–208; Joseph William Singer, Legal Realism Now, 76<br />
California Law Review 465, 477–499 (1988). Legal Realism was also influenced by German legal scholarship.<br />
See James E. Herget and Stephen Wallace, The German Free Law Movement as the Source of<br />
American Legal Realism, 73 Virginia Law Review 399–455 (1987).<br />
22 John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: The University<br />
of North Carolina Press 1995).<br />
23 Laura Kalman, Legal Realism at Yale, 1927–1960 (Union New Jersey: The Law Book Exchange<br />
2001).<br />
24 This is so even if the appearance of realism is often seen in the debate between Roscoe Pound, a sociological<br />
legal scholar, and Karl Llewellyn, a famous protagonist of realism (Horwitz 1992, supra n. 21 at<br />
170–172).<br />
25 Duxbury 1995, supra n. 1 at 149–158. Duxbury notes that the realists who entered the New Deal administration<br />
did not bring their realist theories with them.<br />
29
the changes in legal doctrine, but the change occurred nonetheless. 26 Many noteworthy<br />
trends in the development of law were set in motion during the inter-war years. The<br />
connection between legal scholarship and the social sciences was strengthened, traditional<br />
legal education was questioned and reconsidered, the idea of formalistic legal<br />
reasoning was weakened, the modern conception of legal instrumentalism and the regula<strong>to</strong>ry<br />
state were consolidated, and legal liberalism, the idea of law as a <strong>to</strong>ol <strong>to</strong> organize<br />
society and <strong>to</strong> help the people in need, was becoming a reality.<br />
Although the general line of development continued after The Second World War,<br />
many changes also occurred. The atrocities of the War and the fascist governments<br />
turned the academic mind against the extremism of realism which was accused of nihilism<br />
and of being a “might makes right” ideology. 27 Postwar jurisprudence sought <strong>to</strong><br />
correct the extreme arguments of realism and <strong>to</strong> bring rights and liberties back <strong>to</strong> the<br />
center of legal thinking. Scholars began once again <strong>to</strong> stress the importance of the rule<br />
of law as a guarantee of rights and a free society. Essential <strong>to</strong>pics for scholarship were<br />
rights and the processes with which they were <strong>to</strong> be protected. Whereas realism had<br />
emphasized the role of the legisla<strong>to</strong>r and the unpredictable nature of adjudication, postwar<br />
legal thought began <strong>to</strong> stress the inalienable rights inherent in law and <strong>to</strong> de<strong>fi</strong>ne<br />
clear boundaries of legal reasoning. 28 The postwar legal thought revitalized the claims<br />
of rationality and neutrality. There was no return <strong>to</strong> formalism, but the old ideas were<br />
resuscitated in the changed circumstances. The mainstream postwar legal thought simply<br />
emphasized the rationality of legal reasoning and the fact that certain rights followed<br />
naturally from the structure of society and the rule of law.<br />
3 An outline of a his<strong>to</strong>ry of Scandinavian and Finnish legal thought<br />
The basis of Scandinavian legal scholarship was established in the nineteenth century,<br />
when the elements of positive science and law pushed aside the natural law theory of<br />
earlier times. The nineteenth century was a time of industrialization and population<br />
growth on the one hand, and nationalism and romanticism on the other. The old order of<br />
absolute monarchy was dethroned and parliamentarism and democracy began <strong>to</strong> develop,<br />
and the old community of the estates was transformed in<strong>to</strong> a class society. Democratization<br />
and rule by the people began when economic growth helped the bourgeoisie <strong>to</strong><br />
claim a strong social position and <strong>to</strong> challenge the rule of the monarchy and the nobili-<br />
26 For two different interpretations of the constitutional change of the 1930s, see William E. Leuchtenburg,<br />
The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York:<br />
Oxford University Press 1995); Barry Cushman, Rethinking the New Deal Court: The Structure of Constitutional<br />
Revolution (New York: Oxford University Press 1998).<br />
27 Edward A. Purcell Jr., The Crisis of Democratic Theory: Scienti<strong>fi</strong>c Naturalism & the Problem of Value<br />
(Lexing<strong>to</strong>n, Kentucky: The University Press of Kentucky 1973), 159–178.<br />
28 Horwitz 1992, supra n. 21 at 250–252; Minda 1995, supra n. 7 at 33–36; G. Edward White, The Path of<br />
American Jurisprudence, 124 University of Pennsylvania Law Review 1212, 1248–1249 (1976).<br />
30
ty. 29 Changes in the economy, society, and governance led <strong>to</strong> the liberalization of the<br />
economy, which created a need for a clear and predictable law. 30 Following the trends in<br />
society, culture, and science, his<strong>to</strong>rical and pragmatic legal philosophy, particularly in<br />
Denmark and Norway, made its way <strong>to</strong> the center of legal scholarship in the <strong>fi</strong>rst half of<br />
the century. 31<br />
Legal positivism strengthened its position in the latter half of the century. The<br />
times also witnessed the rise of the German-based conceptual jurisprudence, the purpose<br />
of which was <strong>to</strong> construct a comprehensive system of abstract legal concepts from<br />
which one could draw more particular rules. It emphasized coherence, systematics, logic,<br />
predictability, and reason at a time when society required a rational law and the positive<br />
law became the sole legal authority. Although constructivism achieved a dominant<br />
position, mostly in Norway and Denmark, it was threatened by various forms of sociological<br />
jurisprudence by the turn of the century. 32 Despite variations in nation and in<br />
degree, conceptual jurisprudence brought an element of logic <strong>to</strong> Scandinavian legal<br />
thought.<br />
Being a part of Sweden, fundamental elements of Finnish legal culture had their<br />
origins in the Swedish tradition. For instance, the strong position of the state, national<br />
law, and legalism were adapted <strong>to</strong> Finnish legal thought before the nineteenth century. 33<br />
The tradition of legal scholarship was practically nonexistent in Finland until the late<br />
eighteenth century, and early legal thought followed the Swedish tradition by placing<br />
emphasis on national positive law with the justi<strong>fi</strong>cation of natural law. 34 The centurieslong<br />
unity between the countries established a strong link between their legal systems,<br />
which however the later events shaped.<br />
Finland was annexed by Russia in 1809 which did not, however, mark any obvious<br />
change for law or legal scholarship because the established institutions were preserved.<br />
35 The <strong>fi</strong>rst half of the nineteenth century was a time of slow change in Finland<br />
29 T.K. Derry, A His<strong>to</strong>ry of Scandinavia: Norway, Sweden, Denmark, Finland and Iceland (Minneapolis:<br />
University of Minnesota Press 1979), 220–248.<br />
30 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luen<strong>to</strong>ja<br />
oikeustieteen his<strong>to</strong>riasta (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong> 1996), 81.<br />
31 Lars Björne, Brytningstiden: Den nordiska rättsvetenskapens his<strong>to</strong>ria, Del II, 1817–1870 (Lund: Rättshis<strong>to</strong>riskt<br />
bibliotek 1998), 31–43, 109–119, 229–348, 427–433. Swedish legal scholarship was in a poor<br />
condition from the beginning of the nineteenth century <strong>to</strong> the 1870s (id. at 151–159) and, since Danish<br />
culture had a signi<strong>fi</strong>cant position in Norwegian scholarship until the latter half of the nineteenth century<br />
(id. at 111), Denmark was the leading country in legal scholarship in the nineteenth century (id. at 428–<br />
429). In addition, the stress on pragmatic and his<strong>to</strong>rical fac<strong>to</strong>rs did not mean an uncritical acceptance of<br />
the his<strong>to</strong>rical school (id. at 234–241).<br />
32 Lars Björne, Den konstruktiva riktningen: Den nordiska rättsvetenskapens his<strong>to</strong>ria, Del III, 1871–1910<br />
(Lund: Rättshis<strong>to</strong>riskt bibliotek 2002), 208–230, 240–335, 454–460. To a certain extent, constructivism<br />
was in its turn a counter-reaction against the dominant traditions of the <strong>fi</strong>rst half of the century. (Id. at 33,<br />
85, 456.)<br />
33 Pihlajamäki & Pylkkänen 1996, supra n. 30 at 2.<br />
34 Lars Björne (ed.), Suomalaista oikeustiedettä Caloniuksesta Zittingiin, osa I (Turku 1981), 1–2; Hannu<br />
Tapani Klami, A His<strong>to</strong>ry of Finnish Legal Science: An Outline, XIX Oikeustiede ─ Jurisprudentia 125,<br />
137–174 (1986); Pihlajamäki & Pylkkänen 1996, supra n. 30 at 68–77.<br />
35 Jukka Kekkonen, Suomen oikeuskulttuurin suuri linja 1898–1998 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys<br />
1998), 21. Hannu Tapani Klami has emphasized the signi<strong>fi</strong>cance of the relationship with Russia <strong>to</strong><br />
31
ecause of the lack of parliamentary activity. 36 Legal scholarship <strong>to</strong>ok on a his<strong>to</strong>rical<br />
orientation by focusing on the study of the his<strong>to</strong>ry of positive law in Sweden and Finland.<br />
37 Social and economic development in Finland lagged that of its Scandinavian<br />
neighbors, but in the latter half of the nineteenth century Finland also began <strong>to</strong> industrialize.<br />
In 1855–1880, the economic structure of Finland was liberalized, and the growth<br />
of the economy and industry was set in motion. 38<br />
The latter part of the century was also signi<strong>fi</strong>cant for the development of legal<br />
scholarship. Finland followed the Scandinavian example and turned <strong>to</strong>ward German<br />
conceptual jurisprudence as the basis of legal scholarship. Because of the lack of a<br />
strong national basis for jurisprudence, constructionism became very influential. It<br />
helped the legal scholars <strong>to</strong> systematize the law in<strong>to</strong> a comprehensible whole that could<br />
be adapted <strong>to</strong> the needs of the growing industry, and it also suited the needs of science<br />
and scholarship. 39 Finland had long been a relatively backward country and it remained<br />
so even after the reforms of the late nineteenth century. Conceptual jurisprudence, nevertheless,<br />
conformed <strong>to</strong> the complex problems of industry, and suited the legalistic tradition<br />
of Finland. Whereas the Scandinavian countries adopted forms of sociological<br />
jurisprudence in the late nineteenth century, Finland remained closer <strong>to</strong> the conceptualist<br />
tradition. 40 Because of the legalist tradition of legal scholarship, the political tensions<br />
with Russia, and the relative backwardness of the society, Finnish legal scholars were<br />
not ready <strong>to</strong> adopt sociological perspectives in legal scholarship. Thus, whereas Scandinavian<br />
legal scholarship moved <strong>to</strong>ward pragmatism, Finnish legal scholarship maintained<br />
a more formalist approach.<br />
Scandinavian legal scholars had paid increased attention <strong>to</strong> empirical and social<br />
facts in legal studies from the late nineteenth century onwards. The early twentieth century<br />
witnessed a more extensive transformation of the methodology and basis of legal<br />
scholarship, when a remarkable new school of jurisprudence, which became <strong>to</strong> be<br />
known as Scandinavian legal realism, was developed in Sweden. 41 The early twentieth<br />
century and the inter-war era were marked by the growing welfare measures in Scandi-<br />
Finnish legal scholarship of the nineteenth century. (Hannu Tapani Klami, Oikeustaistelijat: Suomen<br />
oikeustiede Venäjän vallan aikana (Porvoo: Werner Söderström osakeyhtiö 1977); Klami 1986, supra n.<br />
34 at 192.)<br />
36 Henrik Meinander, Suomen his<strong>to</strong>ria: Linjat, rakenteet ja käännekohdat (<strong>Helsinki</strong>: Werner Söderström<br />
Osakeyhtiö 2006), 104–138.<br />
37 Björne 1981, supra n. 34 at 12–13; Björne 1998, supra n. 31 at 199–203.<br />
38 Jukka Kekkonen, Merkantilismista liberalismiin: Oikeushis<strong>to</strong>riallinen tutkimus elinkeinovapauden<br />
syntytaustasta Suomessa vuosina 1855–1879 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1987).<br />
39 Björne 2002, supra n. 32 at 169–179, 230–239; Klami 1977, supra n. 35 at 68–81; Björne 1981, supra<br />
n. 34 at 24–25; Klami 1986, supra n. 34 at 202–205.<br />
40 Klami 1977, supra n. 35 at 173–174.<br />
41 Lars Björne, Realism och skandinavisk realism: Den nordiska rättsvetenskapens his<strong>to</strong>ria, Del IV, 1911–<br />
1950 (S<strong>to</strong>ckholm: Rättshis<strong>to</strong>riskt bibliotek 2007), 1–5. Björne distinguishes between realism, i.e., Danish-<br />
Norwegian realist legal scholarship, and Scandinavian realism, i.e., the realism of the Uppsala school.<br />
32
navia. 42 The development of Scandinavian realism responded <strong>to</strong> the needs of society as<br />
well as <strong>to</strong> the changes in philosophy and science.<br />
Scandinavian realism was based on the early twentieth century Swedish realist<br />
philosophy, known as the Uppsala School, which sought <strong>to</strong> purge philosophy of metaphysics.<br />
43 The purpose was <strong>to</strong> analyze reality without subjective values or inconsistencies<br />
in thinking and language, and hence <strong>to</strong> analyze concepts logically in order <strong>to</strong> reveal<br />
their true meaning in objective reality. Realists also criticized the position of values in<br />
observation because values were derived from emotions and therefore had no place in<br />
objective reality. 44 With the emergence of realism, Scandinavian legal scholarship distanced<br />
itself from the conceptual jurisprudence of the nineteenth century. The focus was<br />
shifted from the construction of concepts <strong>to</strong> the analysis of whether concepts corresponded<br />
<strong>to</strong> empirical reality. This was important since otherwise, the realists argued, the<br />
concepts had no signi<strong>fi</strong>cance.<br />
Scandinavian realism rejected natural law theories as metaphysics because there<br />
were no natural laws or rights. It also rejected positivist legal theories because the will<br />
of the legisla<strong>to</strong>r could not determine the meaning of law alone. 45 Law was seen as an<br />
institution, as an organized man-made force <strong>to</strong> arrange social life and <strong>to</strong> influence the<br />
behavior of people. 46 There was no law beyond the will of the legisla<strong>to</strong>r because there<br />
was no metaphysical reality and the will of the legisla<strong>to</strong>r did not create any independent<br />
“legal reality”. Realists stressed the fact that law was something observable from the<br />
behavior of the people, on which legal scholarship should focus. There was thus an instrumental<br />
relationship between law and society, and since law was not metaphysics,<br />
legal studies and arguments ought <strong>to</strong> be based on the realities of life. 47<br />
Realism bolstered the pragmatic elements of Scandinavian jurisprudence. By the<br />
<strong>fi</strong>rst half of the twentieth century, there was a strong realist tradition within Scandinavian<br />
legal scholarship, which Finland, however, remained mostly outside. The impact of<br />
realism on Finnish legal scholarship was very different than in the Scandinavian countries.<br />
There were relatively realist legal scholars in Finland in the early twentieth century,<br />
who endorsed sociological or realist notions and criticized the conceptualist tradition<br />
42 Sven Olson, Sweden, 4–7, in Peter Flora (ed.), Growth <strong>to</strong> Limits: The Western European Welfare<br />
States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Berlin: Walter de Gruyter<br />
1986), 1–116; Stein Kuhnle, Norway, 120–121, in Flora (ed.) 1986, id. at 117–196; Lars Nørby Johansen,<br />
Denmark, 296–300, in Flora (ed.) 1986, id. at 293–381.<br />
43 Jes Bjarup, The Philosophy of Scandinavian Legal Realism, 18 Ratio Juris 1, 1–4 (1/2005).<br />
44 Markku Helin, Lainoppi ja metafysiikka: Tutkimus skandinaavisen oikeusrealismin tieteenkuvasta ja<br />
sen vaikutuksesta Suomen siviilioikeuden tutkimuksessa vuosina 1920–1960 (<strong>Helsinki</strong>: Suomalainen<br />
lakimiesyhdistys 1988), 11–15, 19–44; Eero Backman, Oikeustiede yhteiskuntatieteenä: Tutkimuksia<br />
oikeustieteen luonteesta erityisesti rikosoikeuden kannalta (<strong>Helsinki</strong>: Lakimieslii<strong>to</strong>n kustannus 1992),<br />
181–190.<br />
45 Bjarup 2005, supra n. 43 at 6–7.<br />
46 John U. Lewis, Karl Olivecrona: “Factual Realism” and Reasons for Obeying a Law, 5 University of<br />
British Columbia Law Review 281, 285–288, 291, 296 (1970).<br />
47 Helin 1988, supra n. 44 at 52–129; Björne 2007, supra n. 41 at 295–309. Realists disagreed over<br />
whether logical positivism was metaphysics or meaningful scienti<strong>fi</strong>c method. (Bjarup 2005, supra n. 43 at<br />
10.)<br />
33
of legal scholarship, but their ideas received a hostile reception from the legal profession.<br />
Their influence thus remained rather insigni<strong>fi</strong>cant at the time. 48 The recent developments<br />
in Scandinavian legal scholarship found no <strong>fi</strong>rm ground in Finland, where the<br />
immediate influence of realism was rather in the counter-reaction it caused. Therefore,<br />
the Finnish jurisprudential tradition remained more conceptualist than the Scandinavian<br />
tradition.<br />
Several reasons can be advanced for the rejection of realism in Finland in the <strong>fi</strong>rst<br />
part of the twentieth century. Because of the his<strong>to</strong>ry of Finland, there was not much<br />
“authentic” national legal scholarship, the tradition of Finnish legal scholarship being<br />
based on German tradition. 49 Furthermore, the social his<strong>to</strong>ry of Finland differs signi<strong>fi</strong>cantly<br />
from that of the Scandinavian countries. In 1918, in the aftermath of independence,<br />
a civil war broke out in Finland between the working class and the bourgeoisie.<br />
The war ended in the defeat of the working class, and despite the few social reforms of<br />
the inter-war era, Finland remained largely a conservative country with a hostile attitude<br />
<strong>to</strong> any socialist tendencies. 50 Realism has also been seen as an expression of the pragmatic<br />
nature of the legal profession, 51 and the Finnish legal profession has been less<br />
pragmatic than the Scandinavian ones.<br />
Many fac<strong>to</strong>rs thus distinguished Finland from other Nordic countries. Because of<br />
the civil war, private property was paramount and socialism was abhorred. Finland was<br />
also religiously more conservative than other Scandinavian countries, and the legal profession<br />
was more insensitive <strong>to</strong> the problems of the lower social classes. Therefore, realistic<br />
jurisprudence had no place in Finnish legal tradition before the Second World<br />
War. 52 Because of the his<strong>to</strong>rical development of Finnish society, and the legal tradition<br />
and profession, realist jurisprudence and legal scholarship as social engineering were<br />
not adaptable. Conceptualism had a strong position in the scholarly tradition, and sociological<br />
jurisprudence suited neither the Finnish society nor the legal profession. Despite<br />
the few efforts <strong>to</strong> change the paradigm, Finland remained mostly constructivist.<br />
48 Björne 2007, supra n. 41 at 223–226, 310–315, 350, 489–490, 562; Heikki Pihlajamäki, Rättskämpar<br />
och pro<strong>to</strong>realister: Den tidiga kritiken mot konstruktivismen i Finland, JFT 2000, 344–349; Backman1992,<br />
supra n. 44 at 3–4. On the impact of realism on Finnish legal scholarship between 1920 and<br />
1950, see Helin 1988, supra n. 44 at 261–422.<br />
49 Urpo Kangas, Brusiin ja moderni, Oikeus 4/1996, 264–265.<br />
50 Mat<strong>to</strong> Alestalo and Hannu Uusitalo, Finland, 200–201, in Flora (ed.) 1986, supra n. 42 at 197–292;<br />
Tapani Valkonen et al., Suomalaiset: Yhteiskunnan rakenne teollistumisen aikana (Porvoo: Werner Söderström<br />
osakeyhtiö 1985), 78–100. The civil war had a considerable influence on the polarization of<br />
Finnish society, but it also marked a break in the legalist tradition of the legal culture, since in the aftermath<br />
of the war, the rebels were convicted in special courts which often neglected various procedural<br />
standards in order <strong>to</strong> obtain the convictions. (Jukka Kekkonen, Laillisuuden haaksirikko: Rikosoikeudenkäyttö<br />
Suomessa vuonna 1918 (<strong>Helsinki</strong>: Lakimeslii<strong>to</strong>n kustannus 1991).)<br />
51 Heikki Pihlajamäki, Against Metaphysics in Law: The His<strong>to</strong>rical Background of American and Scandinavian<br />
Legal Realism Compared, 52 American Journal of Comparative Law 469, 487 (2004).<br />
52 Toni Malminen, So You Thought Transplanting Law is Easy? Fear of Scandinavian Legal Realism in<br />
Finland, 1918–1960, 82–87, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki, (eds.), Nordic Law ─<br />
Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 75–87; Heikki Pihlajamäki,<br />
Den rättsliga formalismen och kritiken av den: En rättsjämförande granskning av den <strong>fi</strong>nska rättsvetenskapen<br />
under 1900-talets första decennier, Retfærd 1997, 64–66.<br />
34
The <strong>fi</strong>rst half of the twentieth century was marked by pluralism in Scandinavian<br />
legal scholarship. 53 Some scholars remained more conceptualist, whereas others adopted<br />
a more realistic approach. In general, however, Finland remained more formalist than<br />
other Nordic Countries, in which a more pragmatic and realistic orientation in legal<br />
studies and theory prevailed. After the Second World War, realism began <strong>to</strong> have more<br />
influence in Finnish legal scholarship, which began <strong>to</strong> pay more attention <strong>to</strong> the particular<br />
circumstances of practical legal problems. 54 The Second World War, however,<br />
stripped all the extreme forms from society and science, and the scholarly tradition was<br />
headed in a more consensual direction. A couple of decades had <strong>to</strong> elapse before severe<br />
criticism could once again strike the tradition of law.<br />
4 The World the War made<br />
4.1 The legacy of the Second World War<br />
The world was in a confused state after the Second World War. The atrocities of the war<br />
and the <strong>to</strong>talitarian governments that had arisen before it forced the leaders of the allied<br />
nations <strong>to</strong> consider the means <strong>to</strong> prevent any recurrence of such an event. Europe was in<br />
ruins and in need of social and economic reconstruction. And so was the international<br />
community that had realized its weakness before machinery that could turn a national<br />
policy in<strong>to</strong> a world disaster. Thus, the war and its aftermath turned out <strong>to</strong> be a signi<strong>fi</strong>cant<br />
turning point in the his<strong>to</strong>ry of the world. 55<br />
Not <strong>to</strong>o long after the war, the economy of the Western world began <strong>to</strong> prosper.<br />
The United States s<strong>to</strong>od out as the economic giant, while the ruined economy of Europe<br />
stagnated at <strong>fi</strong>rst but began <strong>to</strong> grow in the 1950s. The Soviet Union also rose <strong>to</strong> prominence<br />
with a different economic system than that of the Western World. The postwar<br />
economic expansion brought with it the growth of large transnational business and international<br />
economic organizations, which transformed the economic and industrial basis<br />
of the world. 56 Market capitalism and consumer society were about <strong>to</strong> bloom.<br />
In addition <strong>to</strong> economics, internationalization involved global politics. In a need of<br />
a strong international organization for cooperation, the United Nations was founded <strong>to</strong><br />
maintain peace and international cooperation. 57 Europe began <strong>to</strong> structure the European<br />
Community in order <strong>to</strong> create close ties <strong>to</strong> the politics and economies of the European<br />
53 Björne 2007, supra n. 41 at 562.<br />
54 Helin 1988, supra n. 44 at 284–290.<br />
55 Tony Judt, Postwar: A His<strong>to</strong>ry of Europe since 1945 (London: Vintage Books 2010), 13–40.<br />
56 Anthony Sutcliffe, An Economic and Social His<strong>to</strong>ry of Western Europe since 1945 (London: Longman<br />
1996), 6–96.<br />
57 Stanley Meisler, United Nations: The First Fifty Years (New York: The Atlantic Monthly Press 1995),<br />
1–20.<br />
35
great powers and <strong>to</strong> maintain peace. 58 Internationalization and the legacy of the war<br />
awakened a sense of universal community and equality. The organizations established<br />
after the war later became important sources for international human rights, although it<br />
<strong>to</strong>ok some time before the dream came <strong>to</strong> materialize.<br />
World politics also faced a serious challenge. The winning nations of the war were<br />
driven in<strong>to</strong> the conflicting camps of the Western and Eastern parts of the world, led by<br />
the United States and the Soviet Union. The two super-powers had conflicting visions<br />
of dealing with postwar Europe. The Soviets aimed at strong control over politics and<br />
the economy and a socialist ideology, whereas the United States promoted democratic<br />
governments and an international, free-market economy and a capitalist ideology. Because<br />
of this inability <strong>to</strong> agree, Europe was divided in<strong>to</strong> two blocs, with the military<br />
treaty organizations NATO and the Warsaw Pact as the images of the divided world.<br />
Thus began the Cold War and the world became divided between the liberal-capitalist<br />
and socialist ideologies. The nuclear threat, the emerging arms race, and the liberalization<br />
of the colonial world only intensi<strong>fi</strong>ed the conflict that was about <strong>to</strong> have a major<br />
impact on world politics in the following decades. 59<br />
The Cold War and the balance of terror between the superpowers marked much of<br />
what happened during the postwar decades, and the events of the times were often<br />
dressed in ideological rhe<strong>to</strong>ric following the conflict. The Cold War had its impact on<br />
both cultural and political issues. The United States sought <strong>to</strong> create an atmosphere<br />
amenable <strong>to</strong> its culture in order <strong>to</strong> prevent the spread of socialist ideology. Thus, besides<br />
the imperialist policies preventing the spread of communism, the American mass culture<br />
and the trend known as Americanization followed. 60 American influences intruded<br />
with various aspects of social life and mass culture and consumption became essential<br />
elements of the Western world.<br />
4.2 Changes in scholarship<br />
In addition <strong>to</strong> society, politics, and the economy, philosophy, science, and scholarship<br />
also changed signi<strong>fi</strong>cantly. During the war, there was a mass emigration of European<br />
scholars <strong>to</strong> the United States, which had by then become an influential center of scholarship.<br />
Furthermore, during and after the war, scholars increasingly participated in handling<br />
social problems, which meant new purposes for the sciences. The growing encouragement<br />
for cross-disciplinary research contributed <strong>to</strong> the development of research<br />
methods, and the social sciences began <strong>to</strong> emphasize the importance of theory and posi-<br />
58 Judt 2010, supra n. 55 at 156–157.<br />
59 John Lewis Gaddis, The Cold War (London: Penguin Books 2007), 7–65, 98–106, 121–143; Norman<br />
Friedman, The Fifty-Year War: Conflict and Strategy in the Cold War (London: Chatham Publishing<br />
2000), 43–122.<br />
60 Judt 2010, supra n. 55 at 348–353.<br />
36
tivism in their pursuit of dealing with reality. 61 The times marked a reorientation of the<br />
social sciences, which became a major part of academic scholarship with the purpose of<br />
investigating social reality in order <strong>to</strong> provide data for reform.<br />
Important philosophical changes also occurred. The coming of the linguistic turn<br />
directed the interest from reality <strong>to</strong>ward language. Whereas realism had stressed that<br />
reality could be comprehended through empirical observations, the new direction began<br />
<strong>to</strong> emphasize that reality could be comprehended only through language; because there<br />
was no truth beyond it, the focus ought <strong>to</strong> be placed on the concepts of language instead<br />
of nature as such. 62 Mere observations were not adequate because they were linguistically<br />
constructed. 63 After the linguistic turn, the main interest of philosophy was in language<br />
instead of nature, but the turn acquired new dimensions when it faced other developments<br />
in philosophy and scholarship.<br />
A remarkable scienti<strong>fi</strong>c development was that of anthropology. Its status before<br />
the War was ambiguously somewhere between archeology and ethnology, and linguistics<br />
and phonology. After the war, however, the interest in primitive tribes increased. 64<br />
Anthropology contributed <strong>to</strong> the understanding of differing societies and cultural relativity,<br />
and it encouraged seeing the contingency of the social order. A signi<strong>fi</strong>cant school<br />
was structuralist anthropology, which combined the analysis of language and cultural<br />
studies in<strong>to</strong> a theory of structures, meaning that the notion of reality was within structures,<br />
beyond the individual reason. 65 Structuralism became highly influential in the<br />
early 1960s, arguing that language was a mechanism that was its own truth. “<strong>Society</strong><br />
was hence decentered from the whirl of human subjectivity and shifted <strong>to</strong> the objectivity<br />
of structure.” 66 Structuralism pointed out that reality could not be comprehended<br />
through simple observation but one had <strong>to</strong> comprehend the structures of observation.<br />
The image of the transformation of scholarship after the war would not be complete<br />
without two further occurrences. These were the rise of Critical Theory and neo-<br />
Marxism. It is dif<strong>fi</strong>cult <strong>to</strong> describe briefly the Marxist scholarship that follows the theories<br />
that the German philosopher, sociologist, and his<strong>to</strong>rian Karl Marx 67 developed in<br />
61 Roger E. Backhouse and Philippe Fontaine, Toward a His<strong>to</strong>ry of the Social Sciences, 184–190, 198–<br />
200, 222, in Roger E. Backhouse and Philippe Fontaine (eds.), The His<strong>to</strong>ry of the Social Sciences since<br />
1945 (Cambridge: Cambridge University Press 2010), 184–233.<br />
62 Thomas Baldwin, Contemporary Philosophy: Philosophy in English since 1945 (Oxford: Oxford University<br />
Press 2001), 11.<br />
63 Stanley Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (New York:<br />
Oxford University Press 1979), 129–243.<br />
64 Adam Kuper, Social Anthropology, in Backhouse and Fontaine (eds.) 2010, supra n. 61 at 136–154.<br />
65 Terence Hawkes, Structuralism and Semiotics (New York: Routledge 2003), 19–43.<br />
66 Mark Poster, Existential Marxism in Postwar France: From Sartre <strong>to</strong> Althusser (Prince<strong>to</strong>n, New Jersey:<br />
Prince<strong>to</strong>n University Press 1975), 306–314, quotation at 311.<br />
67 Karl Marx was born in 1818 <strong>to</strong> a middle class family. He studied in Bonn and later in Berlin; <strong>fi</strong>rst law,<br />
which he later changed <strong>to</strong> philosophy. During his studies he became interested in Hegelian philosophy<br />
and his<strong>to</strong>ry. Though critical of its idealism, at <strong>fi</strong>rst he was interested in Hegelian philosophy. Later his<br />
criticism would become stronger. Having completed his educations, he worked as a journalist and had <strong>to</strong><br />
move <strong>to</strong> Paris because of the censorship his journal faced. He moved <strong>to</strong> London in 1849, where he remained<br />
for the rest of his life. His theory had started <strong>to</strong> develop in the 1840s, but he wrote his most signif-<br />
37
the latter half of the nineteenth century. Roughly speaking, the essential concepts of<br />
Marxist theory are dialectical his<strong>to</strong>rical materialism, class struggle, the relation between<br />
the basis and the superstructure, and the relation between being and consciousness. 68<br />
The central tenets of Marxism can be summarized as follows.<br />
In a central position is his<strong>to</strong>ry, which is dialectical and driven by materialist motives.<br />
His<strong>to</strong>rical change follows from the conflict of opposing motives that derives from<br />
the materialist reality, and because materialist interests are the main motives of change,<br />
economic relations are the most influential mo<strong>to</strong>r of development. Economic development<br />
had created the modern relations of production that had initiated the struggle between<br />
the modern social classes, namely, the owners of the means of production and the<br />
working class. Economics and the class struggle form the basis, the civil society, on<br />
which the superstructure, the state, is built. Because the role of the state is <strong>to</strong> guarantee<br />
the reproduction of the economy and the social order, it legitimizes the status quo by<br />
making it appear rational, just, and necessary. This leads <strong>to</strong> rei<strong>fi</strong>cation and false consciousness,<br />
which mean that social relations appear as something other than what they<br />
actually are.<br />
Western Marxist scholarship had been already revived in the inter-war years. 69<br />
These were also the times of the emergence of the Frankfurt School following the establishment<br />
of the Institution for Social Research in 1923 in Frankfurt, often linked with<br />
the names of Max Horkheimer, Theodor Adorno, and Herbert Marcuse. Scholars working<br />
at the institute developed Marxist theories during the 1920s and 1930s but, because<br />
of their mostly Jewish background, their work became practically impossible after the<br />
Nazis came <strong>to</strong> power. This led <strong>to</strong> their emigration, eventually <strong>to</strong> the United States. During<br />
and after the War, the scholars of the Frankfurt School developed the Critical Theory<br />
that was based on Marxism. Essential <strong>to</strong> the theory was the abhorrence of idealism,<br />
closed philosophical systems, and doctrinaire research. According <strong>to</strong> the theory, there<br />
was no absolute truth, which was rather something that was constructed in society according<br />
<strong>to</strong> social values and norms. Social analysis was a part of society, and a scholar<br />
was always conditioned by the society within which he or she worked. Thus, the critical<br />
element of the theory was that a scholar was <strong>to</strong> disclose and analyze the influences the<br />
society imposed on him, and thenceforth <strong>to</strong> critically review the influences. 70<br />
icant works after his move <strong>to</strong> London. For a biography of Karl Marx, see David McLellan, Karl Marx:<br />
His Life and Thought (London: Macmillan/Papermac 1987).<br />
68 The literature on Marx is voluminous and there is no point in listing it here. For a systematic account,<br />
see Allen W. Wood Karl Marx (2nd Edition, New York: Routledge 2004).<br />
69 Martin Jay, Marxism and Totality: The Adventures of a Concept from Lukács <strong>to</strong> Habermas (Berkeley:<br />
University of California Press 1984), 102, 128–132; Leszek Kolakowski, Main Currents of Marxism, Vol.<br />
3: The Breakdown (New York: Oxford University Press 1981), 253–255, 308; Poster 1975, supra n. 63 at<br />
42–49.<br />
70 David Held, Introduction <strong>to</strong> Critical Theory: Horkheimer <strong>to</strong> Habermas (Berkeley: University of California<br />
Press 1980), 29–39, 176–225; Martin Jay, The Dialectical Imagination: A His<strong>to</strong>ry of the Frankfurt<br />
School and the Institute of Social Research, 1923─1950 (London: Heinemann Educational Books 1973),<br />
3–85; Kolakowski 1981, supra n. 69 at 341–357.<br />
38
Critical Theory provided a framework for scholarship <strong>to</strong> study social ideologies<br />
and their influence on science and scholarship. A scholar was not an outsider, a neutral<br />
observer of empirical facts but rather a participant in the creation of social reality. Observations<br />
were preconditioned by social values and also contributed <strong>to</strong> their creation.<br />
The legacy of the Frankfurt school for science was persistent skepticism <strong>to</strong>wards facts<br />
and the adaptation of Marxism <strong>to</strong> contemporary circumstances. It was an interpretation<br />
of Marxism without its orthodox or communist grip, which therefore provided a useful<br />
basis for social criticism from various perspectives.<br />
Critical Theory was, however, only a part of the wider turn in philosophy and the<br />
social sciences. From the 1960s onwards, there was a general reaction against positivism<br />
and the use of the methodologies of the natural sciences in social science. 71 Scienti<strong>fi</strong>c<br />
positivism began <strong>to</strong> lose its position at the center of the social sciences, and scholarship<br />
such as structuralism, hermeneutics, and psychoanalysis became more popular. In<br />
the 1960s and 1970s, structuralism was in turn criticized for being conservative and<br />
more radical criticism of positivism appeared. An important development was the<br />
Kuhnian theory of the paradigm, which pointed out the his<strong>to</strong>ricism of knowledge. Various<br />
theories began <strong>to</strong> place structuralism under a critical his<strong>to</strong>rical and social analysis. 72<br />
The new theories helped <strong>to</strong> understand the connection between science and social development.<br />
Although the impossibility of comprehending reality was realized earlier,<br />
the new critical scholarship began <strong>to</strong> analyze the construction of reality against its particular<br />
his<strong>to</strong>rical and social context. During the <strong>fi</strong>rst postwar generation, scholars began<br />
<strong>to</strong> turn <strong>to</strong> explore the reality behind empirical reality. Knowledge was thus not only<br />
constructed, it was argued, but was constructed for a purpose.<br />
Although the signi<strong>fi</strong>cance of the turn was not unambiguous, 73 the feature its followers<br />
shared was the emphasis on “the importance of the local and the contingent, a<br />
desire <strong>to</strong> underline the extent <strong>to</strong> which our own concepts and attitudes have been shaped<br />
by particular his<strong>to</strong>rical circumstances”. 74 Thus, besides the linguistic turn there was also<br />
an “epistemological turn” that followed the fact that reality could not be comprehended<br />
as such but was constructed through the use of language which in turn was also a social<br />
and cultural construction. After the epistemological turn, the world was not simply <strong>to</strong> be<br />
observed but the observation was <strong>to</strong> be reviewed against the context.<br />
In addition, Marxist scholarship was adapted <strong>to</strong> various philosophical branches. 75<br />
Various forms of existentialist and structuralist Marxism emerged in France, 76 and new<br />
developments in Marxism also occurred in Germany and Italy. 77 The new epistemology<br />
71 Quentin Skinner, Introduction: The Return of Grand Theory, 5–6, in Quentin Skinner (ed.), The Return<br />
of Grand Theory in the Human Sciences (Cambridge: Cambridge University Press 1985), 1–20.<br />
72 Backhouse and Fontaine 2010, supra n. 61 at 201–206.<br />
73 Martin Jay, Should Intellectual His<strong>to</strong>ry Take a Linguistic Turn? Reflections on the Habermas-Gadamer<br />
Debate, in Dominick LaCapra and Steven L. Kaplan (eds.), Modern European Intellectual His<strong>to</strong>ry: Reappraisals<br />
and New Perspectives (Ithaca: Cornell University Press 1982), 86–110.<br />
74 Skinner 1985, supra n. 71 at 12.<br />
75 Perry Anderson, Considerations on Western Marxism (London: Verso 1979), 49–74.<br />
76 Poster 1975, supra n. 66 at 209–360.<br />
77 Jay 1984, supra n. 69 at 423–509.<br />
39
and Marxism proved <strong>to</strong> be a suitable combination. Marxism became a popular method<br />
that could be adapted <strong>to</strong> many kinds of theories, a method of criticism that could be<br />
used in evaluating the causes and impacts of the flaws in modern society. Scholars and<br />
intellectuals who were interested in the leftist agenda and the critical potential of science<br />
advocated Marxist methods in their scholarship <strong>to</strong> meet the social and scienti<strong>fi</strong>c<br />
needs.<br />
The postwar years witnessed a considerable change in philosophy and scholarship.<br />
<strong>Society</strong> needed new kinds of engineering in the form of scholarship, which led <strong>to</strong> the<br />
development of the social sciences. Positivism followed the need <strong>to</strong> provide data for<br />
social engineering, and the cooperation between scholars in different disciplines developed<br />
the methods of scholarship further. The linguistic turn in philosophy, scholarly<br />
schisms, and the rising social turbulence, however, gave rise <strong>to</strong> critical views of positivism.<br />
The world was not <strong>to</strong> be taken at face value, but the limits and preconditions of<br />
observation were <strong>to</strong> be analyzed in search for authenticity. Following the changes in<br />
society, politics, and culture, the young turned <strong>to</strong>ward radicalism, leftism became a<br />
powerful force in society, and hence Marxism became an important method in scholarship.<br />
Revision of Marxism provided <strong>to</strong>ols for criticizing capitalist society without however<br />
idealizing Soviet socialism. In order <strong>to</strong> fully understand the scienti<strong>fi</strong>c change and,<br />
furthermore, the change in postwar society, we still need <strong>to</strong> take a look at the change in<br />
political ideology.<br />
4.3 The rise of the New Left: Intellectual and social criticism<br />
The Cold War divided the world between the liberal capitalist and socialist blocs. The<br />
conflict had a considerable impact on western politics as well. In the postwar Western<br />
Europe, communist parties became stronger than they had been before the war. In the<br />
United States, on the other hand, the 1950s marked the anticommunist hysteria and<br />
witch-hunts which signi<strong>fi</strong>cantly paralyzed radical leftist activities. However, the problem<br />
of the western left was that it sought <strong>to</strong> <strong>fi</strong>nd a forceful opposition and alternative <strong>to</strong><br />
the liberal capitalism but did not want <strong>to</strong> succumb <strong>to</strong> the socialism of the old left, the<br />
Soviet Union, or orthodox Marxism.<br />
The New Left therefore emerged in the late 1950s. Although it was also the beginning<br />
of modernization, secularization and moral liberalization, the <strong>fi</strong>rst full decade following<br />
the war was a relatively conservative time and marked a general distrust of socialism.<br />
78 What came <strong>to</strong> be known as “the New Left” arose out of the tension between<br />
the communist and non-communist left. Already in the late 1940s and early 1950s, intellectuals<br />
in the universities of Western countries criticized the American-dominated<br />
liberal capitalism of the western world, while they also avoided glorifying Stalinism and<br />
78 Ronald Fraser, 1968: A Student Generation in Revolt (London: Chat<strong>to</strong> & Windus 1988), 13–28; Judt<br />
2010, supra n. 55 at 373–389.<br />
40
Soviet authoritarianism. 79 In these times, the movements promoting peace and opposing<br />
nuclear weapons, as well as the civil rights struggle also began <strong>to</strong> emerge. 80 Powerful<br />
impulses for the development of the new left were also the Hungarian revolt and the<br />
Suez Crisis of 1956, which demonstrated the imperialist tendencies of both the Western<br />
and Eastern super-powers and encouraged the dissenters of capitalism <strong>to</strong> <strong>fi</strong>nd a third<br />
solution between the ideologies. The emergence of the New Left culminated in Great<br />
Britain with the founding of the New Left Review. 81<br />
The people of the Western nations, and most of all intellectuals and writers, noticed<br />
the failure of the promises of the postwar society in the 1950s and the early 1960s,<br />
since poverty and misery persisted despite national economic prosperity. In addition, the<br />
growth of international big business alienated the working class from their labor and<br />
exposed the inequalities of social power structures. The dissatisfaction with society<br />
grew, and the tensions of decolonization and the fear of the nuclear disaster inflamed<br />
the dissent. 82 A critical mood <strong>to</strong>ward the political establishment developed all over the<br />
western world. The upheaval began from the peace protests and domestic dissatisfaction,<br />
and the international crises intensi<strong>fi</strong>ed the antagonism. An atmosphere critical of<br />
the political and social order continued <strong>to</strong> grow, and the political elite became unable <strong>to</strong><br />
tame the critical mood.<br />
The New Left thinkers were particularly irritated by the liberal rhe<strong>to</strong>ric and the<br />
End of Ideology debates. Conservatives presented the American society and culture as<br />
being the best without any real alternatives, and critical thought did not accept this.<br />
Thus, in his Letter <strong>to</strong> the New Left, C. Wright Mills criticized the ideological rhe<strong>to</strong>ric<br />
that saw no alternative <strong>to</strong> the liberalism of the west and encouraged the young intelligentsia<br />
around the world <strong>to</strong> <strong>fi</strong>ght for a u<strong>to</strong>pian future. He also gave his de<strong>fi</strong>nition <strong>to</strong> the<br />
terms right and left. According <strong>to</strong> him, right meant “celebrating the society as it is…”,<br />
while the left meant “structural criticism and reportage and theories of society…”.<br />
Hence, “[t]o be ‘Left’ means <strong>to</strong> connect up cultural with political criticism, and both<br />
with demands and programmes.” 83 Leftism meant not taking society at face value but<br />
criticizing it from various points of view and then connecting these criticisms with<br />
agendas of political change. The search for reform had begun, but it had <strong>to</strong> wait for a<br />
more appropriate moment <strong>to</strong> <strong>fi</strong>nally burst out at its maximum capacity.<br />
79 Kevin Mattson, Intellectuals in Action: The Origins of the New Left and Radical Liberalism, 1945–<br />
1970 (University Park, Pennsylvania: The Pennsylvania State University Press 2002), 28–41, 52–69;<br />
Poster 1975, supra n. 66 at 209–239.<br />
80 Maurice Isserman, “If I had a Hammer…”: The Death of the Old Left and the Birth of the New Left<br />
(New York: Basic Books 1987), 127–169; Lawrence S. Wittner, The Struggle against the Bomb, Volume<br />
2: Resisting the Bomb: A His<strong>to</strong>ry of the World Nuclear Disarmament Movement, 1954─1970 (Stanford,<br />
California: Stanford University Press 1997), 41–82.<br />
81 Fraser 1988, supra n. 78 at 47–62; Stuart Hall, Life and Times of the First New Left, 61 New Left Review<br />
177, 177–186 (2010). See also http://www.newleftreview.org/his<strong>to</strong>ry (last visited 24.5.2012).<br />
82 Jeremi Suri, Power and Protest: Global Revolution and the Rise of Detente (Cambridge, Massachusetts:<br />
Harvard University Press 2003), 96–99; Kristin Ross, May ‘68 and its Afterlives (Chicago: The University<br />
of Chicago Press 2002), 40–64; Poster 1975, supra n. 66 at 361–369.<br />
83 C. Wright Mills, Letter <strong>to</strong> the New Left, New Left Review 5/1960, 18–23, quotations at 20–21.<br />
41
By the beginning of the 1960s, critical leftist thought and various theories associated<br />
with it had developed. 84 One of the most influential writers of the New Left was<br />
Herbert Marcuse, whose One-Dimensional Man (1964) became the image of the rebellion<br />
against the liberal capitalist society. 85 In the book, he articulated how society dictated<br />
and imposed the notions of freedom and the criteria of good life on the people, and<br />
how the false idea of freedom had overwhelmed everyone beyond the capacity of authentic<br />
thinking. 86 Although the direct impact of the book on the social protests was not<br />
decisive, 87 it nonetheless described the dissident thought and the angst about society<br />
well. The book painted the image of a society that had absolute values, rei<strong>fi</strong>ed reality,<br />
and where everyone was indoctrinated in<strong>to</strong> the social consciousness. In addition, it argued<br />
that modern science was one-dimensional in the same way the people and society<br />
were, 88 reflecting the critical science that was on the rise in the early 1960s. The book<br />
depicted the critical image of the liberal western society well. The people who were not<br />
willing <strong>to</strong> adapt <strong>to</strong> society felt alienated and were thus urged <strong>to</strong> <strong>fi</strong>nd another possibility<br />
that could guarantee the potential for real freedom and personal authenticity. The critical<br />
mood was present in the <strong>fi</strong>rst part of the 1960s but the most radical events were yet<br />
<strong>to</strong> come.<br />
4.4 1968: “The Year that Rocked the World”<br />
The sixties were indeed a transformative decade in many ways. The rising counterculture<br />
and the critical atmosphere <strong>to</strong>ward the authorities and social order that had<br />
emerged in the aftermath of the Second World War reached their zenith in 1968. After<br />
the postwar economic growth and the baby-boom, the sixties were times of economic<br />
prosperity, but they were also times of struggles against the dominance of capitalism<br />
and for civil rights. Despite the great expectations, western societies had not succeeded<br />
in establishing a truly equal and free society. The sixties were also times of the youth<br />
and alternative culture. Rock music, free love, drugs, and rebellion against authority<br />
were parts of the new culture of the young that the conservatives abhorred. Literature<br />
84 Mattson 2002, supra n. 79 at 230–240; Poster 1975, supra n. 66 at 304–305.<br />
85 Douglas Kellner, Herbert Marcuse and the Crisis of Marxism (Basings<strong>to</strong>ke: Macmillan 1984), 1; Mil<strong>to</strong>n<br />
Can<strong>to</strong>r, The Divided Left: American Radicalism, 1900–1975 (new York: Hill and Wang 1978), 196.<br />
86 Herbert Marcuse, One-Dimensional Man (New York: Routledge Classics 2002), 4–17, 25–37, 52–82.<br />
87 Mattson 2002, supra n. 79 at 7–8 n. 8; Ross 2002, supra n. 82 at 191. The impact of Marcuse on New<br />
Left thought is problematic. Gitlin, for instance, emphasizes his influence. (Todd Gitlin, The Sixties:<br />
Years of Hope, Days of Rage (New York: Bantam Books 1993), 246). In addition, Marcuse’s impact<br />
might have been greater in Germany than in France. (See Suri 2003, supra n. 82 at 126–127.)<br />
88 Marcuse 2002, supra n. 86 at 168–203.<br />
42
like Beat and existentialism represented the yearning for authenticity and alienation of<br />
the society. The resistance was cultural, intellectual, and political. 89<br />
The year 1968 was the culmination of the rising turbulence. The decade was<br />
marked by the conflicts beginning with the Cuban revolution, but no event raised such a<br />
general protest movement as the Vietnam War, which provided the <strong>fi</strong>nal spark for the<br />
radical protests of the late 1960s. 90 The War symbolized the capitalist oppression of the<br />
poor and the imperialism of the American hegemony, and the media disseminated the<br />
images of U.S. planes bombing the <strong>fi</strong>elds of Vietnam and the sufferings the war caused.<br />
In 1968, violent and massive protests occurred not only in the United States and<br />
Western Europe, but also in Eastern Europe, the Soviet Union, China, Japan, Brazil, and<br />
Mexico. In addition <strong>to</strong> the Vietnam War, the protests also concerned domestic and academic<br />
affairs. 91 The protest movement was worldwide and involved the dominant ideology.<br />
As an American New Left activist and a future critical legal scholar, Karl Klare<br />
noted, the New Left struggle in the Western world emerged “as a resistance <strong>to</strong> advanced,<br />
welfare-state capitalism, and in Eastern Europe as a revolt against bureaucratic<br />
and authoritarian regimes.” 92 The Soviet suppression of Prague in August, 1968, turned<br />
the radical youth more against the socialist imperialism. What began as mostly student<br />
rebellion at the universities turned in<strong>to</strong> widespread protest against the society, the most<br />
radical example being France, where a nationwide strike was initiated <strong>to</strong> support the<br />
protests. 93 The turbulent 1960s came <strong>to</strong> a violent end in 1968. The youth rebellion reflected<br />
the serious dissatisfaction with social politics and the hatred of imperialism and<br />
warfare. The dominant ideologies in both capitalist and socialist countries were challenged<br />
and the social consciousness was not what it had been for the previous couple of<br />
decades.<br />
It goes beyond the scope of this study <strong>to</strong> contemplate the reasons of the rebellions<br />
of the 1960s, but some suggestions can be made. His<strong>to</strong>rians have stressed the signi<strong>fi</strong>cance<br />
of the large generation that abandoned its respect for traditional authorities, the<br />
war in Vietnam and the nuclear confrontation, the strengthening civil rights movement<br />
and the recognition of the other side of the society, and the media that brought the visions<br />
of miseries and the actions of the rebels <strong>to</strong> the eyes of the whole world. 94 The university<br />
is also important, because the student population grew rapidly from the late <strong>fi</strong>f-<br />
89 Fraser 1988, supra n. 78 at 63–72, 98–101; Judt 2010 supra n. 55 at 324–353, 394–398; Arthur Marwick,<br />
The Sixties: Cultural Revolution in Britain, France, Italy, and the United States, c.1958–c.1974<br />
(Oxford: Oxford University Press 1998), 41–193, 316–358, 404–454.<br />
90 Suri 2003, supra n. 82 at 4, 88–89, 162; Ross 2002, supra n. 82 at 90; Cyril Levitt, Children of Privilege:<br />
Student Revolt in the Sixties (Toron<strong>to</strong>: University of Toron<strong>to</strong> Press 1984), 39–49.<br />
91 Mark Kurlansky, 1968: The Year that Rocked the World (London: Jonathan Cape 2004), 81–84, 118–<br />
128, 149–157, 196–208, 218–237, 331–344; Fraser 1988, supra n. 78 at 121–232; Marwick 1997, supra<br />
n. 89 at 584–675.<br />
92 Karl E. Klare, The Critique of Everyday Life, the New Left, and the Unrecognizable Marxism, 14, in<br />
Dick Howard and Karl E. Klare (eds.), The Unknown Dimension: European Marxism since Lenin (New<br />
York: Basic Books 1072), 3–33. On the dissenter culture of the 1960s in Russia and China, see Suri 2003,<br />
supra n. 81 at 105–121.<br />
93 Kurlansky 2004, supra n. 91 at 218–237, 290–305.<br />
94 Isserman 1987, supra n. 80 at xvii; Kurlansky 2004, supra n. 91 at xviii; Suri 2003, supra n. 82 at 164.<br />
43
ties onwards and because it was the students in particular who rebelled. Higher education<br />
institutions were places where critical notions were introduced <strong>to</strong> young people,<br />
and where a large number of them could communicate and organize groups. 95 Universities<br />
provided a fertile ground for radicalism <strong>to</strong> grow. Young people of the sixties read<br />
critical literature, talked with each other, and formed groups. Thus, the radical spirit was<br />
further cultivated in the universities.<br />
The radicalism and the student rebellion of the 1960s were not simply cultural but<br />
also political events. 96 They were complex phenomena arising out of the social, political,<br />
cultural, and scienti<strong>fi</strong>c changes in the postwar world, converging with the events of<br />
the period as well as with the large generational cohort and student population, which<br />
contributed <strong>to</strong> the scale of the radicalism and protests. 97 1968 was the culmination of a<br />
long process, a point where the radicals had simply had enough and resorted <strong>to</strong> action.<br />
By idolizing rebels like Che Guevara, people not pleased with the contemporary society<br />
felt like freedom <strong>fi</strong>ghters rebelling against an unjust system. Whatever caused the unrest,<br />
the period produced a remarkable gulf between the old and the new generation, a<br />
gulf that caused a huge difference in the perception of the world between the traditional<br />
and the alternative cultures, a gulf that was not simply about age, but rather about world<br />
view and orientation <strong>to</strong>ward life and society. As a consequence of the changes in society,<br />
culture, politics, and scholarship, the three decades after the Second World War produced<br />
two opposing perspectives on the world.<br />
The sixties ended with a ray of hope when the pictures of the earth taken from<br />
space were shown through a satellite <strong>to</strong> the whole world. 98 The decade had raised many<br />
hopes and left a troubled legacy. Student radicalism dissolved around the change of the<br />
decade from 1960–1970, but its political, social, cultural, and intellectual commitments<br />
survived in the forms of social and political activism. 99 Otherwise, the following decades<br />
meant a slight but steady return <strong>to</strong>ward a more conservative politics. 100 With respect<br />
<strong>to</strong> legal scholarship, <strong>to</strong>o, critical scholarship blossomed in the 1970s. The following<br />
chapters deal with the evolution of critical legal scholarship in the United States,<br />
Scandinavia, and Finland. The year 1968 is a beacon for the study. I shall concentrate<br />
on the years that preceded it and then continue through the years that followed.<br />
95 Suri 2003, supra n. 82 at 92–93, 129, 292 n. 15. See also Levitt 1984, supra n. 90 at 47–92.<br />
96 Ross 2002, supra n. 82 at 8–17. In an early his<strong>to</strong>rical analysis of the American Left, Massimo Teodori<br />
writes that the development of the New Left occurred at three levels, psychological, social, and political.<br />
The common feature among those involved in the movement was that they all rejected the traditional<br />
form of American life. (Massimo Teodori, (ed.), The New Left: A Documentary His<strong>to</strong>ry (London: Jonathan<br />
Cape 1970), 73–75.)<br />
97 See, e.g., Marwick 1998, supra n. 89 at 24–25, 36–38, 42.<br />
98 Kurlansky 2004, supra n. 91 at 381–383.<br />
99 Levitt 1984, supra n. 90 at 9; Fraser 1988, supra n. 78 at 285–313.<br />
100 Judt 2010, supra n. 55 at 453–464, 477–478.<br />
44
III Alternative and critical legal scholarship in the United<br />
States, 1965–1980<br />
1 American society in the 1960s and 1970s<br />
The United States entered the 1960s as the most powerful nation in the world. The<br />
postwar baby-boom and economic growth had produced considerable wealth and prosperity<br />
for the nation, whose infrastructure had escaped the devastation of the war. Although<br />
the economic expansion was slowing in the 1960s, the decade was marked by<br />
prosperous big business and pro<strong>fi</strong>ts, general increase in wealth, and urbanization and<br />
sub-urbanization. Mass culture developed as more and more people had the opportunity<br />
for mass consumption and the general living and working conditions were improved.<br />
Increasing crime rates, juvenile delinquency, unemployment, and inequalities in distribution<br />
of wealth were, however, the downsides of this development. 1<br />
Foreign affairs were more problematic from the outset. The Cold War emerged as<br />
a legacy of the Second World War, disrupting the foreign politics and the ideological<br />
atmosphere of the United States. 2 The red scare and the anticommunism that followed<br />
tamed any leftist tendencies and produced a more conservative atmosphere. 3 The Cuban<br />
revolution produced a communist regime near the American border, and the missile<br />
crisis drove the world close <strong>to</strong> a nuclear war. 4 The crisis was a terrible reminder of the<br />
potential for super-power conflict exacerbated by nuclear weapons. In addition, international<br />
conflicts arising out of the ideological schism occurred further from the borders.<br />
The Korean War troubled Asian affairs in the <strong>fi</strong>fties, 5 but the sixties brought the Vietnam<br />
War that had remarkable political effects across the entire western world. The<br />
war had begun in the decolonization after the Second World War with the United States<br />
supporting the French troops in their former colony in the struggle against the North<br />
Vietnamese communist regime. 6 The United States entered the war in 1964 and re-<br />
1 James T. Patterson, Grand Expectations: The United States, 1945–1970 (New York: Oxford University<br />
Press 1996), 10–12, 59–70, 77–78, 312–326, 333–336, 345–348, 450–454, 467–468, 533–538.<br />
2 In general on the Cold War and its impact on world policies, see John Gaddis, The Cold War (London:<br />
Penguin Books 2007); Norman Friedman, The Fifty-Year War: Conflict and Strategy in the Cold War<br />
(London: Chatham Publishing 2000).<br />
3 Richard M. Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University<br />
Press 1990), 1–36, 59–202.<br />
4 Michael R. Beschloss, Kennedy v. Khrushchev: The Crisis Years, 1960–1963 (London: Faber and Faber<br />
1991), 91–117, 420–663; Friedman 2000, supra n. 3 at 213–214, 275–282.<br />
5 Patterson 1996, supra n. 1 at 208–242.<br />
6 Stanley Karnow, Vietnam: A His<strong>to</strong>ry (New York: Penguin Books 1984), 135–239; George C. Herring,<br />
America’s Longest War: The United States and Vietnam, 1950–1975 (New York: McGraw-Hill 1996), 2–<br />
79.<br />
45
mained in the <strong>fi</strong>eld till the mid-1970s. 7 The war became the most hated war in his<strong>to</strong>ry<br />
and an image of the 1960s, when mass protests against American participation were<br />
held world-wide. 8 The War was an image of capitalist oppression and a reminder of the<br />
imperialist past of the western world, and the expansion of the media brought the images<br />
of the war home so that everyone could watch the massacres.<br />
On the home front, poverty and racism were especially pressing problems. 9 The<br />
war on poverty was initiated in the 1960s <strong>to</strong> bridge the gap between the rich and the<br />
poor, and many legislative and social welfare measures were enacted aiming <strong>to</strong> improve<br />
the conditions of the poor. 10 African Americans, on the other hand, had struggled<br />
against inequality and discrimination at least since the beginning of the century. 11 Their<br />
social status had improved somewhat since the war but the situation was still bad in the<br />
<strong>fi</strong>fties. 12 The United States Supreme Court invalidated racial segregation in 1954 13 and<br />
raised hopes for a better future, but the situation did not improve as expected. In protesting<br />
against discrimination, African Americans became pioneers in the civil rights struggles.<br />
The peaceful protests of the 1950s and early 1960s became more violent as the<br />
situation persisted. 14 The federal government sought <strong>to</strong> improve the situation with civil<br />
7 Karnow 1984, supra n. 6 at 365–426. The Tonkin incident, in which the United States accused the Vietnamese<br />
of attacking U.S. ships at the Gulf of Tonkin, was rather an excuse for entering the war. (Herring<br />
1996, supra n. 6 at 133–137.)<br />
8 Maurice Isserman, “If I Had a Hammer…”: The Death of the Old Left and the Birth of the New Left<br />
(New York: Basic Books 1987), 166–167; James Miller, “Democracy is in the Streets”: From Port Huron<br />
<strong>to</strong> the Siege of Chicago (New York: Simon and Schuster 1987), 214–217, 228–234; Mark Kurlansky,<br />
1968: The Year that Rocked the World (London: Jonathan Cape 2004), 54–56.<br />
9 Organizations such as the American Civil Liberties Union (ACLU), the National Lawyers Guild (NLG),<br />
and the National Association for the Advancement of Colored People (NAACP) were important in the<br />
legal struggles against poverty and racism. These organizations were, of course, founded much earlier.<br />
The NAACP was founded in 1909, ACLU in 1920, and NLG in 1937. Furthermore, the civil rights struggle<br />
was not simply the activity of these organizations.<br />
10 John A. Andrew III, Lyndon Johnson and the Great <strong>Society</strong> (Chicago: Ivan R. Dee 1998), 63–72, 101–<br />
104, 114–123, 132–141, 163–182. The effects of the efforts were, of course, more problematic. (Id. at 72–<br />
94, 104–107, 145–158.)<br />
11 For the early struggles of the NAACP, see Gilbert Jonas, Freedom’s Sword: The NAACP and the<br />
Struggle against Racism in America, 1909–1969 (New York: Routledge 2007), 8–134. For the non-<br />
NAACP civil rights struggles in inter-war era, see Glenda Elizabeth Gilmore, Defying Dixie: The Radical<br />
Roots of Civil Rights, 1919–1950 (New York: W. W. Nor<strong>to</strong>n 2008).<br />
12 Manning Marable, Race, Reform, and Rebellion: The Second Reconstruction in America, 1945–1990<br />
(Jackson: University Press of Mississippi 1991), 13–39. After the War, voting rights were improved,<br />
public of<strong>fi</strong>ces were more open, and segregation in sports leagues and higher education was abolished.<br />
13 Brown v. Board of Education of Topeka, 347 U.S. 438 (1954). The case is indeed one of the most wellknown<br />
cases in the his<strong>to</strong>ry of the U.S. Supreme Court. The his<strong>to</strong>ry of the case is depicted in Richard<br />
Kluger, Simple Justice: His<strong>to</strong>ry of Brown v. Board of Education and Black America’s Struggle for Equality<br />
(New York: Vintage Books 2004); Michael J. Klarman, From Jim Crow <strong>to</strong> Civil Rights: The Supreme<br />
Court and the Struggle for Racial Equality (New York: Oxford University Press 2004). The struggles for<br />
racial equality after Brown are reviewed in James T. Patterson, Brown v. Board of Education: A Civil<br />
Rights Miles<strong>to</strong>ne and its Troubled Legacy (New York: Oxford University Press 2001). Kluger can be<br />
considered as traditional, whereas Klarman is a revision, emphasizing the fact that the decision was not a<br />
legal innovation but rather a reflection of the social and political development, and that its impact was not<br />
signi<strong>fi</strong>cant.<br />
14 Marable 1991, supra n. 12 at 61–148; Patterson 2001, supra n. 13 at 118–146. The deaths of the civil<br />
rights leaders, Martin Luther King Jr. and Malcolm X intensi<strong>fi</strong>ed the violence of the protests.<br />
46
ights legislation. Improvement was achieved, but the problem remained unresolved. 15<br />
Social problems and the responses <strong>to</strong> them were signi<strong>fi</strong>cant aspects of the sixties. The<br />
war on poverty was a sign of the recognition of the “other side” of American prosperity,<br />
which showed that social problems at least were not ignored. Civil rights struggles and<br />
the policies that followed made an important contribution by pointing out the realization<br />
of social problems, the activism of the citizen, and the willingness of the government <strong>to</strong><br />
try <strong>to</strong> correct the social evils.<br />
Another important aspect was the revitalization of the American left. 16 The left<br />
was, indeed, in a need of new impulses, since there had never been a strong political<br />
working-class coalition in the United States despite a few upward periods and strong<br />
labor unions, 17 and “[t]he postwar years frustrated the American Left, which faced increasingly<br />
harsh Red-baiting after 1945.” 18 After the war, the left began <strong>to</strong> prosper, especially<br />
among intellectuals. Social dissenters began <strong>to</strong> criticize the fact that suburbanization<br />
created circumstances which turned people in<strong>to</strong> uncritical, conformist massconsumers<br />
without a notion of individuality 19 and, during the late <strong>fi</strong>fties, the generation<br />
that had grown in the anti-communist and conservative postwar society began <strong>to</strong> feel<br />
alienated from the traditional norms and institutions of society. 20 These disaffected<br />
youth identi<strong>fi</strong>ed themselves more with the otherness of the social mis<strong>fi</strong>t than with the<br />
lifestyle of their parents and thus deviated from that lifestyle. Labor unions also did<br />
quite well, even if the anti-communism did <strong>to</strong>ne down the leftist tendencies of the unions,<br />
and the civil rights legislation of the 1960s improved the conditions of the workers<br />
and kept them quiescent. 21 Since there was no strong working class left in America at<br />
the beginning of the 1960s, the left had <strong>to</strong> <strong>fi</strong>nd another place <strong>to</strong> prosper.<br />
The leftist tendencies were most apparent in the radicalism that emerged. The New<br />
Left emanated from the civil rights movement and social dissatisfaction. It was a<br />
movement of radical students criticizing the university administration and society.<br />
Campus activism had begun in the late forties and intensi<strong>fi</strong>ed in the early sixties in the<br />
protests against the red witch-hunts, racial discrimination, and restrictions on freedom<br />
of speech on the campuses. 22 The Students for a Democratic <strong>Society</strong> organization was<br />
15 Andrew 1998, supra n. 10 at 23–55; Hugh Davis Graham, The Civil Rights Era: Origins and Development<br />
of National Policy, 1960–1972 (New York: Oxford University Press 1990), 125–277.<br />
16 Kevin Mattson, Intellectuals in Action: The Origins of New Left and Radical Liberalism (University<br />
Park, Pennsylvania: The Pennsylvania State University Press 2002), 7; Mil<strong>to</strong>n Can<strong>to</strong>r, The Divided Left:<br />
American Radicalism, 1900–1975 (New York: Hill and Wang 1978), 173–174; Paul Buhle, Marxism in<br />
the United States: Remapping the His<strong>to</strong>ry of the American Left (London: Verso 1987), 206–213.<br />
17 Buhle 1987, supra n. 16 at 19–183. Buhle argues that there has been no universal consensus on the<br />
virtues of capitalism in the United States but the socialist tradition has not been persistently sustained<br />
either (id. at 10–11) and concludes that “[c]ommunism in America… was a culture essentially for the<br />
intellectuals, the foreign born, and the exceptional au<strong>to</strong>didact.” (Id. at 188.) It seems that there has not<br />
been a strong, uniform leftist movement in America but rather various forms of social antagonism.<br />
18 Patterson 1996, supra n. 1 at 41.<br />
19 Id. at 337–340.<br />
20 John Partick Diggins, The Rise and Fall of the American Left (New York: W. W. Nor<strong>to</strong>n 1992), 219–<br />
221; Isserman 1987 supra n. 8 at 58–65, 98–102.<br />
21 Melvyn Dubofsky, Labor in America: A His<strong>to</strong>ry (Wheeling, Illinois: Harlan Davidson 2010), 209–324.<br />
22 Isserman 1987, supra n. 8 at 58–60, 144–168, 173–198; Can<strong>to</strong>r 1978, supra n. 16 at 182–202.<br />
47
founded in 1960, and in 1962 its members gathered in Port Huron <strong>to</strong> create a project for<br />
the future. Thus, the American New Left emerged, distancing itself from the Marxism<br />
of the old left, emphasizing participa<strong>to</strong>ry democracy, and trying <strong>to</strong> adapt the leftist ideology<br />
<strong>to</strong> modern circumstances. 23 The escalation of the Vietnam War only intensi<strong>fi</strong>ed<br />
the activism. The zenith of radicalism was reached in the siege of Chicago in August<br />
1968 when the leftist radicals protested at the Democratic Party convention. The protests<br />
ended up in a violent confrontation with the police. 24<br />
Besides student radicalism, women also became more aware of their oppression.<br />
The rising gender consciousness contributed <strong>to</strong> the legislation regarding equality between<br />
the genders, but the radical branch of feminism went further in its criticism of the<br />
male domination of society. Women within the New Left and civil rights movement<br />
were resentful because of male domination and because the radicals cared more about<br />
Vietnam or the civil rights of African Americans than the deprived status of women. As<br />
a consequence, modern radical feminism rose during the sixties. 25 The New Left was<br />
mostly a movement of radical students who protested against the inequalities of the society.<br />
It did not succeed in cooperating with the labor unions or the civil rights movements<br />
because of its agenda, but it was a culmination of the protest atmosphere and cultural<br />
rebellion.<br />
The critical spirit of the 1960s did not last long. In general, “[t]he late sixties was a<br />
time of strong antibusiness sentiment in the United States,” 26 and movements such as<br />
consumer protection and environmentalism emerged. 27 People were dissatis<strong>fi</strong>ed with the<br />
way things were governed and dealt with, and various dissenting movements began <strong>to</strong><br />
demand changes in politics. The end of the 1970s, however, meant a slow but steady<br />
general turn <strong>to</strong>ward more conservative politics. 28 Since the liberal reforms of the 1960s<br />
had not been radical, no fundamental change had occurred in spite of the many chang-<br />
23 Miller 1987, supra n. 8 at 41–217; Isserman 1987, supra n. 8 at 116–123, 202–219; Buhle 1987, supra<br />
n. 16 at 232–242; Mattson 2002, supra n. 16 at 13–14, 230–253. The Port Huron Conference is typically<br />
seen as the origin of the New Left. In the revision of the New Left it has, however, been argued that the<br />
Port Huron Conference was not particularly signi<strong>fi</strong>cant for the future of the New Left. Smith, for instance,<br />
argues that the SDS did not distance itself so far from the old left that it would have created something<br />
special for the future in Port Huron. (Allen Smith, Present at the Creation... and Other Myths: The Port<br />
Huron Statement and the Origins of the New Left, 25 Peace and change 3/2000, 346, 348–350, 353 356–<br />
357.)<br />
24 Diggins 1992, supra n. 20 at 228–231; Todd Gitlin, The Sixties: Years of Hope, Days of Rage (New<br />
York: Bantam Books 1993), 319–336; Can<strong>to</strong>r 1978, supra n. 16 at 207–216; Miller 1987, supra n. 8 at<br />
226–306.<br />
25 Ruth Rosen, The World Split Open: How the Modern Women’s Movement Changed America (New<br />
York: Penguin Books 2000), 69–164, 267–294.<br />
26 Andrew 1998, supra n. 10 at 171.<br />
27 Patterson 1996, supra n. 1 at 712–713, 725–729; Andrew 1998, supra n. 10 at 164–177.<br />
28 Bruce J. Schulman, The Seventies: The Great Shift in American Culture, <strong>Society</strong>, and Politics (New<br />
York: The Free Press 2001), 193–194. In many respects, the 1970s was a continuation of the trends of the<br />
1960s. It was not until the end of the decade and the beginning of the 1980s that the conservative turn was<br />
clear. For instance, despite conservative social policy, efforts <strong>to</strong> improve social security also continued<br />
throughout Nixon's <strong>fi</strong>rst presidency, and it is thus questionable whether Nixon was the “last liberal” or the<br />
“<strong>fi</strong>rst conservative”. (Schulman 2001, id. at 24–35.) Nevertheless, the political agenda of the 1980s was<br />
also strengthened in the 1970s, which thus marked a signi<strong>fi</strong>cant decade for the new conservatism.<br />
48
es. 29 Nonetheless, widespread radicalism and New Left activism came <strong>to</strong> an end in the<br />
early 1970s. 30 It was also a time of an economic downturn, largely due <strong>to</strong> the Vietnam<br />
War and the oil crisis, and the economic recession increased unemployment and income<br />
disparities, encouraging labor union activity and strikes. 31 Workers, however, never<br />
identi<strong>fi</strong>ed themselves with the radical left. 32<br />
The conservative turn was also reflected in the Supreme Court. The sixties had<br />
been the heyday of the liberal Court known as the Warren Court. School desegregation<br />
in 1954 was the <strong>fi</strong>rst signi<strong>fi</strong>cant liberal decision and along with the 1960s came several<br />
decisions which improved the protection of civil rights and the procedural rights of the<br />
accused. 33 At the early 1970s, the Court also began slowly <strong>to</strong> withdraw from its liberal<br />
stance. Of course, liberal decisions, such as the legalization of abortion in 1973, continued<br />
sporadically. 34 The liberal decisions of the Warren Court were reflections of society<br />
that contributed <strong>to</strong> the people’s awareness of rights, 35 but the rulings, and in particular<br />
the decisions concerning the rights of the criminal procedure, were also severely criticized.<br />
36 Nevertheless, the Court both reflected the social atmosphere and influenced it.<br />
Whatever were the causes of the decisions, they reflected the liberal spirit of the 1960s<br />
and strengthened the citizen’s awareness of rights, but they also caused a counterreaction,<br />
which contributed <strong>to</strong> the decline of the liberalism.<br />
Neither social, intellectual, and cultural criticism from the left, nor the liberal activism,<br />
of course, ended in the 1970s even though the large-scale radical-liberal front<br />
faded. Liberalism and radicalism continued in many forms of activism in later years, 37<br />
although what was known as the New Right emerged more strongly in the 1970s. The<br />
deeply hated Vietnam War ended in 1973, and the Watergate scandal produced a widespread<br />
distrust of public authorities. People were still struggling for their rights but ma-<br />
29 Patterson 1996, supra n. 1 at 590.<br />
30 Can<strong>to</strong>r 1978, supra n. 16 at 217–222; Cyril Levitt, Children of Privilege: Student Revolt in the Sixties<br />
(Toron<strong>to</strong>: University of Toron<strong>to</strong> Press 1984), 53.<br />
31 Richard Moser, Au<strong>to</strong>workers at Lords<strong>to</strong>wn: Workplace Democracy and American Citizenship, 290–<br />
298, in Van Gosse and Richard Moser (eds.), The World the Sixties Made: Politics and Culture in Recent<br />
America (Philadelphia: Temple University Press 2003), 289–315.<br />
32 Diggins 1992, supra n. 20 at 265; Can<strong>to</strong>r 1978, supra n. 16 at 221–222.<br />
33 Mor<strong>to</strong>n J. Horwitz, The Warren Court and the Pursuit of Justice (New York: Hill and Wang 1998), 15,<br />
32–52, 61–62, 65–73, 83–95, 106–111; G. Edward White, The American Judicial Tradition: Pro<strong>fi</strong>les of<br />
Leading American Judges (New York: Oxford University Press 2007), 305–316. The name “Warren<br />
Court” comes from Earl Warren who served as the Chief Justice of the Supreme Court from 1953 <strong>to</strong><br />
1969. In many ways, he was the leader of the Court and its liberal icon in the 1960s.<br />
34 Roe v. Wade, 410 U.S. 113 (1973); Horwitz 1998, supra n. 33 at 4. In Roe, the Court invalidated laws<br />
criminalizing abortion during the <strong>fi</strong>rst trimester of pregnancy. The case is still one of the most controversial<br />
decisions of the Supreme Court.<br />
35 Patterson 1996, supra n. 1 at 568.<br />
36 Lawrence M. Friedman, Crime and Punishment in American His<strong>to</strong>ry (New York: Basic Books 1993),<br />
302.<br />
37 Van Gosse, Postmodern America: A New Democratic Order in the Second Gilded Age, 5–7, in Gosse<br />
and Moser (eds.) 2003, supra n. 31 at 1–36; Richard Moser, Was it the End or Just a Beginning? American<br />
S<strong>to</strong>rytelling and the His<strong>to</strong>ry of the Sixties, 37, in Gosse and Moser (eds.) 2003, supra n. 31 at 37–51;<br />
Levitt 1984, supra n. 30 at 9; Can<strong>to</strong>r 1978, supra n. 16 at 222–226.<br />
49
jor protests were rare. The cold war also thawed in the 1970s, and although the conflict<br />
continued, the all-encompassing ideological tension became more moderate. 38<br />
The sixties had a signi<strong>fi</strong>cant impact in academia and intellectual life, which was<br />
seen in the 1970s. Critical thought in American academia was rare before the 1960s.<br />
The academic counter-culture of the sixties rebelled against traditional values and<br />
sought <strong>to</strong> create a new, critical intellectual establishment, 39 but it was not until the<br />
1970s that a broad critical tradition emerged. For instance, Marxism made its way in<strong>to</strong><br />
American scholarship in the 1960s, but it was widely contested and was often a disadvantage<br />
in academic competition. In the 1970s, however, Marxism became a more<br />
common form of critical scholarship. 40 The New Left found a new home in academia<br />
and adopted neo-Marxism as its method of criticism. 41 The rise of Marxist scholarship<br />
also encouraged conflicts within the universities, which became divided. The gap between<br />
the liberals and the conservatives that was so immense within society also became<br />
marked within the universities, as the scholars who identi<strong>fi</strong>ed themselves with the<br />
radicals sought <strong>to</strong> create new theories and <strong>fi</strong>elds of research <strong>to</strong> criticize and surpass the<br />
academic tradition.<br />
The two decades of the 1960s and 1970s were remarkable, indeed. The United<br />
States experienced a revival of its left after the politically conservative period of the<br />
<strong>fi</strong>fties, but the radicalism faded slowly at the end of the decade. The war raged for over<br />
a decade in Asia, and it was hated around the globe and ignited unexampled protests<br />
everywhere. Liberalization of society had begun in the <strong>fi</strong>fties and continued at an accelerating<br />
scale in the 1960s, but at the beginning of the seventies, the problems of the<br />
poor and the minorities persisted. Although social radicalism faded, critical scholarship<br />
of the 1960s and the 1970s continued the radical project in the universities. Nevertheless,<br />
radicalism was a counter-culture, even if it became more popular and influential.<br />
The majority were not campus radicals, leftists, or social critics and, moreover, the majority<br />
supported the Vietnam War till the late 1960s and voted for Nixon in 1968. Thus,<br />
despite the fact that the 1960s did change society considerably, the liberal and prosocial-justice<br />
tendencies were currents of criticism.<br />
38 Schulman 2001, supra n. 28 at 6, 42–52, 54–72, 159–189, 194–205.<br />
39 Lewis Perry, Intellectual Life in America: A His<strong>to</strong>ry (New York: Franklin Watts 1984), 417–424.<br />
40 Russell Jacoby, The Last Intellectuals: American Culture in the Age of Academe (New York: Basic<br />
Books 1987), 130–141; Bertell Ollman & Edward Vernoff, Introduction, 1–6, in Bertel Ollman & Edward<br />
Vernoff (eds.), The Left Academy: Marxist Scholarship in American Campuses (New York: McGraw-<br />
Hill 1982), 1–8. For the rise of Marxist scholarship in various disciplines in general, see the articles in<br />
Ollman & Vernoff (eds.) 1982.<br />
41 Diggins 1992, supra n. 20 at 289; Levitt 1984, supra n. 30 at 5, 118–126.<br />
50
2 Alternative legal scholarship and critical lawyers of the 1960s<br />
2.1 Introduction<br />
In this section I will analyze some currents of alternative legal scholarship of the 1960s<br />
and 1970s in order <strong>to</strong> reconstruct the context in which the Critical Legal Studies movement<br />
(CLS) emerged, and <strong>to</strong> bridge the gap between legal realism and CLS. As we saw,<br />
realism lost much of its prestige in the postwar years, but this does not mean that there<br />
was no alternative legal scholarship before the 1970s. I will demonstrate that there was<br />
no unanimity on legal thought, and that alternative legal scholarship emerged as a counter<br />
force <strong>to</strong> the tradition that remained mostly doctrinal and emphasized rationality and<br />
neutrality. However, the alternative jurisprudential movements of the 1960s only rarely<br />
challenged the basis of law or legal scholarship, or society.<br />
The <strong>fi</strong>eld of jurisprudence was far from simple in the 1960s. I will examine this<br />
complex situation in the following sections. First, I shall examine the nature of the legal<br />
thought of the 1960s. As will be shown, there was mainstream thought, but there was<br />
also serious disagreement regarding it. Second, I will briefly explore the alternative legal<br />
scholarship. The “schools” of jurisprudence analyzed here are political jurisprudence,<br />
law and development, and law and society respectively, which reflected the intellectual<br />
and social changes of the postwar decades. Political jurisprudence was a diversi<strong>fi</strong>ed<br />
and nuanced movement which applied political and behavioral sciences <strong>to</strong> legal<br />
research. The law and development movement related <strong>to</strong> the development mission in the<br />
third world and investigated law in different cultures, thus contributing <strong>to</strong> the cultural<br />
and structural understanding of law. The law and society movement focused on law in<br />
its social context and was important in the development of interdisciplinary and sociological<br />
jurisprudence. These movements encouraged legal studies beyond doctrinal<br />
analysis with the application of social sciences. They also developed a social theory of<br />
law that could bridge the gap between law in books and law in action. In a certain sense,<br />
they paved the way <strong>to</strong> a more critical legal scholarship, and the last two particularly had<br />
a more or less direct relationship with it. Furthermore, in the last sub-section I will point<br />
out that some lawyers of the 1960s also adopted critical and even radical perspectives<br />
on their profession. In general, then, there was a widespread dissatisfaction within the<br />
legal profession with the tradition and various alternative ways <strong>to</strong> practice the profession<br />
were sought. The movements dealt with below were of course much more diversi<strong>fi</strong>ed<br />
and nuanced than the descriptions indicate, but my purpose is <strong>to</strong> analyze the general<br />
situation.<br />
In addition <strong>to</strong> examining the main currents of alternative legal scholarship, I will<br />
clarify the context of the development of CLS. I will demonstrate that the radical critical<br />
legal scholarship grew up amid a legal crisis, but efforts <strong>to</strong> alter the fundamental basis<br />
of the profession were rare. I will show that many of the realist insights survived the<br />
51
postwar retreat from extreme realism, and that the state of legal scholarship was complicated<br />
and far from formalist. CLS developed in a kind of consensus in which the realist<br />
notions were domesticated and where radical notions of law were largely neglected.<br />
2.2 Neutral principles and the dynamics of legal reasoning: A prelude <strong>to</strong> criticism<br />
American jurisprudence needed revitalization after the Second World War. Realism had<br />
dethroned classical legal thought in the inter-war years, but after the war realism was in<br />
a crisis. The postwar era witnessed a revival of reasoned theory on judicial decisionmaking<br />
and, during the 1950s, jurisprudence known as the process theory, or reasoned<br />
elaboration, arose. This theory stressed the rationality of the legal process and the fact<br />
that judicial decisions ought <strong>to</strong> be reasonably elaborated in order <strong>to</strong> guarantee just outcomes<br />
and the maintenance of the rule of law. 42 At the heart of reasoned elaboration<br />
was the process through which judicial decisions were reached. Its essential elements<br />
were principled and reasoned decision-making, judicial restraint, technical and professional<br />
abilities in reasoning, and an emphasis on strict separation of state powers, but it<br />
nevertheless encouraged the interpretation of law in context. 43<br />
Besides meeting the social and jurisprudential challenges, reasoned elaboration<br />
was also a response <strong>to</strong> the liberalism of the postwar Supreme Court. A problem of legal<br />
scholars was that the decisions appeared morally just but “jurisprudentially unsatisfac<strong>to</strong>ry.”<br />
44 Thus, an important task was <strong>to</strong> de<strong>fi</strong>ne rational boundaries for judicial review. In<br />
1958, Learned Hand published his lectures on constitutional adjudication in which he<br />
endorsed strict judicial restraint and argued that the courts should not intervene in the<br />
business of the legisla<strong>to</strong>r. 45 In a response that was <strong>to</strong> become the best-known expression<br />
of reasoned elaboration, Herbert Wechsler developed his theory of neutral principles<br />
that permitted judicial review if it occurred according <strong>to</strong> neutral reasoning and an analysis<br />
of constitutional law that would transcend contemplation on the results of the deci-<br />
42 G. Edward White, The Path of American Jurisprudence, 124 University of Pennsylvania Law Review<br />
1212, 1246–1249 (1976); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press<br />
1995), 233–241; Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End<br />
(New York: New York University Press 1995), 33–36; Anthony Sebok, Legal Positivism in American<br />
Jurisprudence (Cambridge: Cambridge University Press 1998), 113–138. Process theory was not an invention<br />
of the postwar years but an older tradition in American jurisprudence. (Duxbury 1995, id. at 205–<br />
206, 298.) Nonetheless, it attracted much more attention after the war.<br />
43 G. Edward White, The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social<br />
Change, 59 Virginia Law Review 279, 286–291 (1973); Michael Wells, Behind the Parity Debate: The<br />
Decline of the Legal Process Tradition in the Law of Federal Courts, 71 Bos<strong>to</strong>n University Law Review<br />
609, 619–623 (1991); Richard H. Fallon Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vanderbilt<br />
Law Review 953, 957–958, 964–966 (1994); Sebok 1998, supra n. 42 at 138–159, 176–177.<br />
44 Duxbury 1995, supra n. 42 at 266.<br />
45 Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (Cambridge, Massachusetts:<br />
Harvard University Press. 1958), 1–30, 56–77.<br />
52
sion. 46 The purpose of neutral principles was <strong>to</strong> base judicial decision-making on rational<br />
grounds so that decisions would appear neutral and objective without the personal<br />
input of the judge.<br />
Wechsler’s article was followed by an intense debate. 47 While many scholars accepted<br />
the theory <strong>to</strong> a certain extent, 48 many also criticized it. Among the <strong>fi</strong>ercest critics<br />
were Arthur Miller and Ronald Howell, who argued that neutral principles were a traditional<br />
way <strong>to</strong> mask the arbitrary nature of judicial decision-making, which was always<br />
affected by values and considerations on the result. Therefore they endorsed a teleological<br />
jurisprudence that would focus on the results rather than doctrine because it was<br />
“more useful <strong>to</strong> search for the values that can be furthered by the judicial process than<br />
for allegedly neutral or impersonal principles which operate within that process.” 49 Miller<br />
and Howell represented the post-realist jurisprudence that paid attention <strong>to</strong> the policy<br />
implications of law. 50 They did not like the formalist <strong>to</strong>ne of neutral principles that neglected<br />
the aspects of policy under legal adjudication. Whereas Wechsler was arguing<br />
for the rationality of principle and doctrine, his realist critics were denying the possibility<br />
of neutrality of principle and arguing for the rationality of policy and consequence.<br />
The controversy over neutral principles reflected the conflicting views of adjudication<br />
the legal scholars espoused in the early 1960s. Those who criticized the concept of<br />
46 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review 1–35<br />
(1959). Anthony Sebok has argued that Wechsler’s theory was a conservative interpretation of reasoned<br />
elaboration and has thus given a conservative character <strong>to</strong> the whole theory. Moreover, the theory of<br />
Wechsler gained the attention it did because of its critical review of the civil rights decisions. (Sebok<br />
1998, supra n. 42 at 180, 183. See also Duxbury 1995, supra n. 42 at 267–268.) The creative and understanding<br />
aspect was thus more pronounced in process theory than in neutral principles, but it is dif<strong>fi</strong>cult <strong>to</strong><br />
de<strong>fi</strong>ne every detail of the theory. (For differences in interpretation of the theory, see, e.g., Wells 1991<br />
supra n. 43 at 627–628, 641–642, and compare <strong>to</strong> Fallon 1994, supra n. 43 at 973 n. 85, n. 86.)<br />
47 Barry Friedman, Neutral Principles: A Retrospective, 50 Vanderbilt Law Review 503, 507–530 (1997);<br />
Sebok 1998, supra n. 42 at 179–199<br />
48 Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply <strong>to</strong> Professor Wechsler, 108<br />
University of Pennsylvania Law Review 1, 5 (1960); Henry M. Hart, The Time Chart of the Justices, 73<br />
Harvard Law Review 84, 99, 125 (1959); Erwin N. Griswold, Of Time and Attitudes ─ Professor Hart<br />
and Judge Arnold, 74 Harvard Law Review 81, 88 (1961); Louis Henkin, Some Reflections on Current<br />
Constitutional Controversy, 109 University of Pennsylvania Law Review 637, 652–655 (1961). Pollak,<br />
for instance, accepted that decisions ought <strong>to</strong> be based on neutral principles but disagreed as <strong>to</strong> whether<br />
the civil rights decisions Wechsler criticized were incompatible with the idea. (Pollak 1960, id. at 2, 5.)<br />
Later, however, Pollak turned <strong>to</strong> criticize the concept of neutral principles. (Louis H. Pollak, Constitutional<br />
Adjudication: Relative or Absolute Neutrality, 11 Journal of Public Law 48, 61 (1962).) Wechsler<br />
did not criticize the decisions but the way they were reasoned. Henkin, <strong>to</strong>o, argued that the civil rights<br />
cases were, in fact, neutrally reasoned. (Henkin 1961, id. at 653–654.) Hart and Griswold were writing<br />
about constitutional adjudication in general and both called for rational and neutral decision-making,<br />
while only Hart referred <strong>to</strong> Wechsler’s article.<br />
49 Arthur S. Miller and Ronald F. Howell, The Myth of Neutrality in Constitutional Adjudication, 27<br />
University of Chicago Law Review 661, 661–664, 671–672, 684, 690–693 (1961), quotation at 661. Purposive<br />
jurisprudence was not “a device <strong>to</strong> provide the answers <strong>to</strong> a given set of circumstances. Rather, it<br />
is a method ─ a mode of inquiry, a way <strong>to</strong> approach constitutional questions.” (Id. at 693.) It is interesting<br />
that in Sweden, Ekelöf was also developing a teleological jurisprudence in the early 1950s.<br />
50 See Harold D. Lasswell, and Myres S. McDougal, Legal Education and Public Policy: Professional<br />
Training in the Public Interest, 52 Yale Law Journal 203–295 (1943). Miller and Howell wrote that they<br />
were influenced by McDougal’s literature. (Miller and Howell 1961, supra n. 49 at 663, 690–692.)<br />
53
neutral principles argued that the theory either ignored the social effects of law 51 or<br />
could not take in<strong>to</strong> account the complex context of judicial decision-making. 52 They<br />
noted that legal cases sometimes involved such important civil rights problems that they<br />
required contemplation on values and policies and could not be left <strong>to</strong> simple logic, 53<br />
and that principled decision-making was not effective in protecting constitutional<br />
rights. 54 The old realist Charles Clarke and David Trubek, a contemporary sociological<br />
legal scholar, argued that blind faith in neutrality mysti<strong>fi</strong>ed judicial decision-making<br />
and stabilized it in<strong>to</strong> a conservative force. Therefore, in order <strong>to</strong> make law evolve according<br />
<strong>to</strong> social change, the judges should openly contemplate values and policies. 55<br />
Scholars more favorable <strong>to</strong>ward the idea of neutral principles argued that since judicial<br />
decision-making was supposed <strong>to</strong> be strictly principled and restrained in order <strong>to</strong> avoid<br />
arbitrary decisions, 56 principled decision-making was the only way <strong>to</strong> guarantee the legitimacy<br />
of the courts. 57 The disagreement as <strong>to</strong> the nature of the judicial process was<br />
evident. The critics of neutral principles thought that contemplation on the factual social<br />
circumstances guaranteed that decisions would be socially just, whereas those who favored<br />
principled decision-making opined that law dictated what was just and the meddling<br />
of the courts could only produce arbitrary decisions.<br />
The debate also reflected scholarly views on constitutional decision-making. If the<br />
Supreme Court was viewed, as Martin Shapiro did, “as part of the American political<br />
process, rather than as a unique body of impervious legal technicians above and beyond<br />
the political struggle,” 58 then judicial decision-making ought <strong>to</strong> be unders<strong>to</strong>od in its political<br />
context. 59 As will be seen in the following sections, in the 1960s scholars began<br />
<strong>to</strong> develop theories of judicial decision-making that would pay due regard <strong>to</strong> its context<br />
<strong>to</strong> an increasing extent. Legal scholarship in general became more socially oriented. The<br />
debate on neutral principles pointed out that the legal profession was divided regarding<br />
legal reasoning and there were differing views with respect <strong>to</strong> legal theory.<br />
The division between traditional scholars and scholars searching for new approaches<br />
was also obvious. The proponents of neutral principles emphasized the importance<br />
of process while the critics were more concerned about the substance. The<br />
51 Eugene V. Ros<strong>to</strong>w, American Legal Realism and the Sense of the Profession, 34 Rocky Mountain Law<br />
Review 123, 138 (1962).<br />
52 Thurman Arnold, Professor Hart’s Theology, 73 Harvard Law Review 1298, 1310─1313, 1317 (1960).<br />
53 Addison Mueller and Murray L. Schwartz, The Principle of Neutral Principles, 7 UCLA Law Review<br />
571, 587–588 (1960).<br />
54 J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 Harvard Law<br />
Review 769, 799–803 (1971).<br />
55 Charles E. Clark and David M. Trubek, The Creative Role of the Judge: Restraint and Freedom in the<br />
Common Law Tradition, 71 Yale Law Journal 255, 271, 275–276 (1961).<br />
56 Griswold 1961, supra n. 48 at 92–93; Henkin 1961, supra n. 48 at 654–655.<br />
57 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Indiana Law Journal 1, 4,<br />
6 (1971).<br />
58 Martin Shapiro, Law and Politics in the Supreme Court: New Approaches <strong>to</strong> Political Jurisprudence<br />
(London: The Free Press of Glencoe, Collier-Macmillan 1964), 15.<br />
59 Martin Shapiro, The Supreme Court and Constitutional Adjudication: Of Politics and Neutral Principles,<br />
31 George Washing<strong>to</strong>n Law Review 587, 603–605 (1963).<br />
54
question was not about the typical formalist-realist controversy. Scholars of reasoned<br />
elaboration were well aware of the fact that judges made law but they wanted <strong>to</strong> create<br />
de<strong>fi</strong>nite boundaries for it. 60 They sought <strong>to</strong> “incorporate legal realist intellectual sophistication<br />
in<strong>to</strong> the mainstream of American legal discourse while avoiding the most corrosive<br />
aspect of the realist message ─ that there was no analytically defensible way <strong>to</strong><br />
distinguish law from politics.” 61 Even Wechsler admitted that law evolved within society,<br />
and thus Theodore Becker argued that the critics had “cast Wechsler in<strong>to</strong> a traditionalist<br />
form, where he does not belong.” 62 Reasoned elaboration was, of course, a traditional<br />
response <strong>to</strong> radical realism and an effort <strong>to</strong> underline the rational aspects of legal<br />
reasoning. It was neither formalism nor realism in any extreme form. Nevertheless, virtually<br />
every legal scholar in the 1960s acknowledged the personal input of the judge in<br />
the development of law, and disagreement arose as <strong>to</strong> whether this was <strong>to</strong> be principled<br />
and restrained or open. There were scholars who were more realist or formalist, although<br />
the extremes were rare.<br />
In any event, process theory could be characterized as the dominant form of legal<br />
thought of 1950–1980. 63 American jurisprudence of the 1960s was more about process<br />
than substance and more about reason and principle than value and policy, and at the<br />
end of the decade scholars were still trying <strong>to</strong> de<strong>fi</strong>ne the boundaries of legal discretion. 64<br />
As noted, however, the legal profession was far from unanimous on the place of neutrality<br />
and rationality in legal reasoning and, as will be noted in the following sections, the<br />
1960s brought various forms of alternative legal scholarship that challenged the dominance<br />
of principle, doctrine, neutrality, and rationality in legal reasoning. It was, nonetheless,<br />
this context where the law students of the 1960s were educated.<br />
The educational aspect is important. It is a common observation that the legal process<br />
school and the anti-leftist atmosphere of the 1950s affected many of those who<br />
60 Sebok 1998, supra n 42. at 118.<br />
61 Gary Peller, Neutral Principles in the 1950s, 21 University of Michigan Journal of Law Reform 561,<br />
567 (1988).<br />
62 Theodore L. Becker, Political Behavioralism and Modern Jurisprudence: A Working Theory and Study<br />
in Judicial Decision-Making (Chicago: Rand McNally 1964), 60. Becker argues further that Wechsler,<br />
Pollak, and Hart could all be “placed in the realist camp since they accept the necessity of tempering the<br />
amorphous, highly abstract principles of law as the times demand.” (Id. at 56.) This seems <strong>to</strong> be a very<br />
moderate conception of realism, since Wechsler particularly denied the analysis of results, which the<br />
realists, on the other hand, often stressed. The de<strong>fi</strong>nition of realism is thus very ambiguous. This also<br />
shows that the concept of balanced realism is one of degree, since both Wechsler and Miller could be<br />
labeled as balanced realists but no one could argue that they were at the same place within it.<br />
63 It has been argued that the theory lost much of its vitality during the 1960s and early 1970s due <strong>to</strong> the<br />
social activism of the Supreme Court. (Vincent A. Wellman, Dworkin and the Legal Process Tradition:<br />
The Legacy of Hart & Sacks, 29 Arizona Law Review 413, 473 (1987).) Yet in 1976 it was claimed that<br />
the process theory of Hart and Sacks was the most influential theory not published, and were it <strong>to</strong> be published,<br />
it was a “denial of the equal protection of the laws <strong>to</strong> confer a law degree on a student who had not<br />
been exposed <strong>to</strong> it.” (J.D. Hyman, Constitutional Jurisprudence and the Teaching of Constitutional Law,<br />
28 Stanford Law Review 1271, n. 70 (1976).) Moreover, it was argued in 1994 that process theory is still<br />
the “reigning paradigm” in federal law. (Fallon 1994, supra n. 43 at 954–956, 979.)<br />
64 Elliott M. Abramson, Those Still Elusive Neutral Principles ─ A Further Groping, 7 Duquesne Law<br />
Review 245─257 (1969); Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University<br />
of Illinois Press 1976 ).<br />
55
studied then and later became critical scholars. 65 Education and mainstream jurisprudence<br />
obviously were very conservative and this did disturb those students who yearned<br />
for a more critical and reformist perspective on law. The legal profession at large, however,<br />
was not unanimously traditional, more critical and realist <strong>to</strong>nes already prevailing<br />
in the late 1950s and early 1960s. The leap from reasoned elaboration <strong>to</strong> critical legal<br />
scholarship was not straightforward, but a process which involved the evolution of social<br />
awareness as well as the jurisprudential thought. The following sections will illuminate<br />
this process in more detail.<br />
2.3 Political jurisprudence<br />
Political jurisprudence was a movement that focused on the behavioral and political<br />
aspects of judicial decision-making. 66 Although its foundations were laid in the realism<br />
of the early twentieth century, studies of political jurisprudence began in the late 1940s,<br />
increased during the 1950s and became quite popular in the 1960s. 67 The Supreme<br />
Court had always been an interesting and controversial <strong>to</strong>pic for American legal scholarship,<br />
but only by the <strong>fi</strong>fties did systematic studies on Supreme Court decision-making<br />
from the perspectives of social and behavioral sciences and policy analysis gain solid<br />
ground. 68 The new approach considered judicial decision-making in its political context<br />
systematically and with a theoretical basis. Even if earlier scholars acknowledged the<br />
connection between politics and the courts, it was not until the postwar years that this<br />
connection came <strong>to</strong> the forefront of the research on the judiciary.<br />
65 James R. Hackney Jr., Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary<br />
American Legal Theory (New York: New York University Press 2012), 6.<br />
66 Political jurisprudence was not a uniform school but a diversi<strong>fi</strong>ed movement with various approaches.<br />
According <strong>to</strong> Nancy Maveety, there were three main methodologies within behavioral judicial research;<br />
namely, attitudinal, strategic, and his<strong>to</strong>rical-institutional, which all had differing methods and approaches.<br />
(Nancy Maveety, The Study of Judicial Behavior and the Discipline of Political Science, 5, in Nancy<br />
Maveety (ed.), The Pioneers of Judicial Behavior (Ann Arbor: The University of Michigan Press 2003),<br />
1–51). In this study, however, the term “political jurisprudence” refers <strong>to</strong> all of the approaches <strong>to</strong> judicial<br />
behavior, because the essentials of the schools were basically the same despite the differences in approach;<br />
they all studied the courts as human activity participating in policy-making. The different approaches<br />
are dealt with in Maveety (ed.) 2003, id., and see also Glendon Schubert, Academic Ideology<br />
and the Study of Adjudication, 61 American Political Science Review, 106–129 (1/1967).<br />
67 Maveety 2003, supra n. 66 at 6–17; Tracy E. George, Developing a Positive Theory of Decisionmaking<br />
on U.S. Courts of Appeals, 58 Ohio State Law Journal 1635, 1645–1655 (1998); Joel B. Grossman &<br />
Joseph Tanenhaus, Toward a Renascence of Public Law, in Joel B. Gorssman & Joseph Tanenhaus (eds.),<br />
Frontiers of Judicial Research (New York: John Wiley and Sons 1969), 3–25. Maveety writes that “C.<br />
Herman Pritchett’s benchmark study of the Roosevelt Court in 1948 was the continuation and a culmination<br />
of the long-cherished objective of discovering the political values that underlie judicial decisions,”<br />
but with new tactics. (Maveety 2003, id. at 8.) It has been noted that realism was highly influential in the<br />
American academy when Pritchett began his scholarship on judicial behavior, and that Pritchett himself<br />
was a moderate realist. (Lawrence Baum, C. Herman Pritchett: Innova<strong>to</strong>r with an Ambiguous Legacy, 60,<br />
in Maveety 2003 (ed.) supra n. 66 at 57–77.)<br />
68 See Policy-making in a Democracy: The Role of the United States Supreme Court: A Symposium, 6<br />
Journal of Public Law 275─508 (1957).<br />
56
By the mid-1960s, political analysis of the courts was relatively popular and its<br />
methods and purposes were more speci<strong>fi</strong>cally de<strong>fi</strong>ned. Martin Shapiro, for instance,<br />
wrote that political jurisprudence was “essentially an extension of certain elements of<br />
sociological jurisprudence and judicial realism, combined with the substantive<br />
knowledge and methodology of political science.” 69 A prominent scholar of behavioral<br />
studies on judicial decision-making, Glendon Schubert noted that the behavioral approach<br />
was interested in theoretical realistic jurisprudence and empirical fact gathering,<br />
combining these in a scienti<strong>fi</strong>c manner. 70 Political jurisprudence was a mixture of sociological<br />
jurisprudence, realism, and new social and behavioral sciences. It thus sought <strong>to</strong><br />
revise old themes in a modern context.<br />
Besides scholarly innovations, political jurisprudence was also a critical enterprise<br />
against the establishment. Shapiro wrote that political jurisprudence represented “a revolt<br />
against the traditional approach <strong>to</strong> the Supreme Court through the study of his<strong>to</strong>ry<br />
and Constitutional law” 71 , although Schubert noted that “[t]here is nothing novel in the<br />
idea that the decisions of judges on questions of public policy are strongly influenced by<br />
their personal beliefs.” 72 Even if the profession at large acknowledged that judicial decision-making<br />
was also influenced by other sources than law, the approach was not unanimously<br />
accepted, at least not at face value. The critics of the behaviorist approach argued<br />
that it drew unconvincing generalizations on judicial decisions and downplayed<br />
the role of law. 73 Political jurisprudence sought <strong>to</strong> bring <strong>to</strong> the forefront of research the<br />
notion of political influence on law. The legal profession was aware of this notion but<br />
did not want <strong>to</strong> stress it. Legal scholars were balancing between more and less realist<br />
views on legal reasoning and political and social scientists were eager <strong>to</strong> promote alternative<br />
views on legal scholarship.<br />
In the pursuit of expanding the methodologies of legal studies, various forms of<br />
political jurisprudence became widespread during the 1960s. 74 Cross-disciplinary scholarship<br />
was making its way in<strong>to</strong> legal research, which meant that legal phenomena were<br />
not simply examined from a legal point of view according <strong>to</strong> the traditional methods,<br />
but rather as parts of the society. In Justice in America, 75 Herbert Jacob conducted a<br />
69 Martin Shapiro, Political Jurisprudence, 52 Kentucky Law Journal 294, 294 (1964).<br />
70 Glendon Schubert (ed.), Judicial Behavior: A Reader in Theory and Research (Chicago: Rand McNally<br />
1964), 3. In addition, Schubert was not <strong>to</strong>o enthusiastic about the methods of political research because<br />
they focused on policy-making and group interests, whereas the behavioral approach he endorsed emphasized<br />
the personal characteristics of the judges. (Glendon Schubert, The Political Role of the Courts:<br />
Judicial Policy-Making (Glenview Illinois: Scott, Foresman, and Company 1965), 165–183.)<br />
71 Shapiro 1964, supra n. 58 at vii.<br />
72 Schubert 1964, supra n. 70 at 306. In fact, Pritchett had already introduced a similar notion in 1941. See<br />
C. Herman Pritchett, Divisions of Opinion among Justices of the U.S. Supreme Court, 1939–1941, 35<br />
American Political Science Review 890, 890 (1941).<br />
73 James L. Blawie and Marilyn J. Blawie, The Judicial Decision: A Second Look at Certain Assumptions<br />
of Behavioral Research, 18 The Western Political Quarterly 579–593 (1965).<br />
74 Literature on political jurisprudence up <strong>to</strong> 1968 as compared <strong>to</strong> traditional studies on constitutional law<br />
is reviewed in C. Herman Pritchett, Public Law and Judicial Behavior, 30 Journal of Politics 480–509<br />
(1968).<br />
75 Herbert Jacob, Justice in America: Courts, Lawyers, and the Judicial Process (Bos<strong>to</strong>n: Little, Brown<br />
and Company 1965).<br />
57
political analysis of the administration of justice in America in a text-book manner, but<br />
instead of simply describing the system he also placed it in its social and political context.<br />
Thus, the reader learned about the social and political aspects of the legal system,<br />
not simply about its normative function.<br />
At the heart of political jurisprudence was the understanding that courts were not<br />
simply deciding legal conflicts. The courts were also political arenas in which one could<br />
pursue one’s interests and power, 76 and there was no judicial objectivity because courts,<br />
like legislatures and executives, responded <strong>to</strong> social pressures, although indirectly and<br />
<strong>to</strong> a lesser degree. 77 Therefore, judges were often analyzed on the basis of their past<br />
decisions by collecting quantitative data <strong>to</strong> predict their decisions, 78 scaling them on a<br />
liberal-conservative axis, 79 or analyzing their opinions as value-responses <strong>to</strong> the social<br />
stimuli the cases brought up. 80 The purpose was <strong>to</strong> understand the ideological and political<br />
values and attitudes of the judges according <strong>to</strong> how they responded <strong>to</strong> the cases.<br />
According <strong>to</strong> political jurisprudence, one had <strong>to</strong> go beyond the written opinions in order<br />
<strong>to</strong> understand judicial decisions.<br />
The problems of political jurisprudence became more evident as the scholarship<br />
expanded. Even if it was noted that the attitudes of the judges were dif<strong>fi</strong>cult <strong>to</strong> infer<br />
from the decisions, studies of political jurisprudence were regarded as useful. 81 There<br />
were various approaches <strong>to</strong> judicial behavior with both bene<strong>fi</strong>ts and problems. 82 Judicial<br />
decisions were reviewed, for instance, against the social background of the judges, 83<br />
according <strong>to</strong> behavior as members of groups, 84 according <strong>to</strong> game theories, 85 and as<br />
responses <strong>to</strong> certain combinations of facts. 86 The various aspects sought <strong>to</strong> establish a<br />
distance from the traditional method and extend the scope of judicial research with social<br />
sciences in the background of the decisions. But legal scholars were not convinced<br />
76 Schubert 1965, supra n. 70 at 75.<br />
77 Jacob 1965, supra n. 75 at 4–14.<br />
78 Stuart Nagel, Predicting Court Cases Quantitatively, 63 Michigan Law Review 1411–1422 (1965).<br />
79 Glendon Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946–<br />
1963 (Evans<strong>to</strong>n: Northwestern University Press 1965). The name of the book was originally intended <strong>to</strong><br />
be Liberal Mind but it was changed because the purpose was not <strong>to</strong> study political ideology and the mind<br />
of everyman, but rather a special mind and an aspect of political ideology. Thus the name was changed <strong>to</strong><br />
stress the fact that the study concerned judicial behaviour in particular. (Glendon Schubert, The Judicial<br />
Mind Revisited: Psychometric Analysis of Supreme Court Ideology (New York: Oxford University Press<br />
1974), 17.)<br />
80 David J. Danelski, Values as Variables in Judicial Decision-Making: Notes Toward a Theory, 19 Vanderbilt<br />
Law Review 721–740 (1966).<br />
81 Joseph Tanenhaus, Cumulative Scaling of Judicial Decisions, 79 Harvard Law Review 1583, 1590–<br />
1594 (1966).<br />
82 See the symposium on social science approaches <strong>to</strong> the judicial process in 79 Harvard Law Review<br />
1551─1628 (1966). There the various methods were critically reviewed with the notion that they, nevertheless,<br />
were useful in understanding the dynamics of the judicial process.<br />
83 See Joel B. Grossman, Social Backgrounds and Judicial Decision-Making, 79 Harvard Law Review<br />
1551–1564 (1966).<br />
84 See Walter F. Murphy, Courts as Small Groups, 79 Harvard Law Review 1565–1572 (1966).<br />
85 See Samuel Krislov, Theoretical Attempts at Predicting Judicial Behavior, 79 Harvard Law Review<br />
1573–1582 (1966).<br />
86 See Fred Kort, Quantitative Analysis of Fact-Patterns in Cases and Their Impact on Judicial Decisions,<br />
79 Harvard Law Review 1595–1603 (1966).<br />
58
of the usefulness of the social sciences in analyzing the judicial process. The legal philosopher<br />
Lon Fuller criticized these approaches, arguing that since they could not explicate<br />
the motives behind the written decisions, the scholars were merely imposing their<br />
own views on those of the judge. 87 For legal scholars with a traditional perspective, it<br />
seemed absurd <strong>to</strong> argue simply on the basis of the decisions that they were motivated by<br />
extra-legal fac<strong>to</strong>rs. The difference between the legal and non-legal perspective on the<br />
judiciary was that the former stressed normative aspects and doctrine, whereas the latter<br />
stressed political and social aspects.<br />
In any event, legal scholars also endeavored <strong>to</strong> understand the judicial process beyond<br />
doctrine. Theodore Becker, a scholar of political jurisprudence with a more legal<br />
perspective noted that the “legal scholar tends <strong>to</strong>ward a far more normative posture than<br />
the political scientist-behavioralist.” 88 Since Becker also had a legal education, he<br />
sought <strong>to</strong> combine aspects of political jurisprudence with traditional jurisprudence 89<br />
because he opined that the combination was also useful for lawyers in understanding the<br />
judicial process. 90 Political jurisprudence was mostly an enterprise of scholars of political<br />
and behavioral sciences, but the cross-disciplinary approach was gaining more<br />
ground. When legal scholars became acquainted with the movement, they <strong>to</strong>ok the analysis<br />
closer <strong>to</strong> the legal perspective instead of emphasizing simply the behavioral and<br />
political aspects.<br />
Even scholars of political science noted that political fac<strong>to</strong>rs could not directly explain<br />
the decisions, and the scholarship itself was placed under scrutiny. 91 Jacob wrote<br />
that there was no certainty regarding judicial discretion, “but when judges consistently<br />
favor one principle over another, it becomes clear that they are employing their own<br />
values and attitudes as well as their expertise.” 92 According <strong>to</strong> Shapiro, courts were<br />
supplementary policy-makers who made policies within the context of law. 93 Scholars<br />
knew that there was more <strong>to</strong> judicial decision-making than simply law, but the problem<br />
concerned the way the extra-legal fac<strong>to</strong>rs and their impact was <strong>to</strong> be examined and how<br />
far they were <strong>to</strong> be stressed, as it did in the neutral principles debates. Traditional scholarship<br />
realized the problem but sought <strong>to</strong> rationalize legal reasoning as far as possible,<br />
whereas the alternative scholars stressed the irrational aspects.<br />
87 Lon L. Fuller, An Afterword: Science and the Judicial Process, 79 Harvard Law Review 1604, 1619–<br />
1622 (1966). As Fuller also noted, the scholars of political jurisprudence were aware of the problems their<br />
methods included.<br />
88 Becker 1964, supra n. 62 at 40.<br />
89 See id.<br />
90 Theodore L. Becker, The Fall and Rise of Political Scienti<strong>fi</strong>c Jurisprudence: Its Relevance <strong>to</strong> Contemporary<br />
Legal Concerns, 45 North Carolina Law Review 642, 643, 646–647, 653–654, 657–568 (1967).<br />
91 Richard S. Wells & Joel B. Grossman, The Concept of Judicial Policy-Making: A Critique, 15 Journal<br />
of Public Law 286–310 (1966); Sidney S. Ulmer, The Dimensionality of Judicial Voting Behavior, 13<br />
Midwest Journal of Political Science 471–483 (1969).<br />
92 Herbert Jacob, Edi<strong>to</strong>r’s Introduction, xiv, in Herbert Jacob (ed.), Law, Politics, and the Federal Courts<br />
(Bos<strong>to</strong>n: Little, Brown and Company 1967), ix–xx.<br />
93 Martin Shapiro, The Supreme Court and Administrative Agencies (New York: The Free Press 1968),<br />
21–22.<br />
59
As the sixties progressed, political jurisprudence began <strong>to</strong> resemble balanced realism<br />
more than the behaviorist determinism of its early phases. The scholars argued that<br />
since qualitative or quantitative analysis alone missed certain elementary aspects, research<br />
needed both of the approaches. 94 Furthermore, court decisions had <strong>to</strong> be examined<br />
in context, 95 and not simply according <strong>to</strong> the stare decisis as the taught tradition<br />
did. 96 In short, one was not <strong>to</strong> study what the judges ought <strong>to</strong> do but what they were<br />
most likely <strong>to</strong> do. 97 Although the approaches varied, 98 political jurisprudence aimed at<br />
understanding law and court decisions in the context of the society and politics within<br />
which they functioned. This was important during the time of social turbulence and the<br />
controversial court-cases, because these provided the scholars with interesting <strong>to</strong>pics <strong>to</strong><br />
deal with.<br />
The recent controversial decisions of the Supreme Court and the public opinion on<br />
them increased interest in studying the context of the decisions. Scholars who tackled<br />
the problems argued that public opinion regarding the judiciary mattered more than the<br />
opinion of professionals. 99 Studies showed relatively low con<strong>fi</strong>dence in the Supreme<br />
Court; 100 con<strong>fi</strong>dence in the Court as such but disrespect for particular cases, 101 and the<br />
fact that people of high social status appreciated the Court more than the lower classes.<br />
102 The impact of the rise of empirical and behavioral sciences was obvious in the<br />
studies, but so were the socioeconomic changes that increased the need <strong>to</strong> have a grassroots<br />
perspective on elite institutions. As the prestige of legal doctrine and principle<br />
diminished in the late 1960s, studies regarding elite institutions such as the Supreme<br />
Court began <strong>to</strong> pay more attention <strong>to</strong> the impact the institutions had on society and the<br />
way people unders<strong>to</strong>od them.<br />
Reflecting the importance of social and cultural elements, as well as the internationalization<br />
of scholarship, comparative studies on judicial behavior became more<br />
94 J. Woodford Howard Jr., On the Fluidity of Judicial Choice, 62 American Political Science Review 43–<br />
47, 55–56 (1968).<br />
95 Joel B. Grossman, A Model for Judicial Policy Analysis: The Supreme Court and the Sit-In Cases,<br />
422–423, in Grossman and Tanenhaus (eds.) 1969, supra n. 67 at 405–460.<br />
96 Shapiro 1968, supra n. 93 at 67–73. See also Martin Shapiro, Toward a Theory of Stare Decisis, 1<br />
Journal of Legal Studies 125–134 (1972).<br />
97 Reed C. Lawlor, Personal Stare Decisis, 41 Southern California Law Review 73–118 (1967).<br />
98 See, e.g., Lee Epstein and Jack Knight, Walter F. Murphy: The Interactive Nature of Judicial Decision<br />
Making, 206–207, in Maveety (ed.) 2003, supra n. 66 at 197–227. The authors analyze the differing approaches<br />
in the social-psychological paradigm <strong>to</strong> distinguish it from strategic analysis, writing that the<br />
“approaches differ from one another at the margins. But because they draw from the same paradigm (social-psychological),<br />
they are complementary in their core beliefs about the way people make decisions.”<br />
(Id. at 207.)<br />
99 Joel B. Grossman & Richard S. Wells, Constitutional Law and Judicial Policy-Making (New York:<br />
John Wiley & Sons 1972), 827.<br />
100 Kenneth M. Dolbeare, The Public Views the Supreme Court, 196–198, in Jacob (ed.) 1967, supra n. 92<br />
at 194–212.<br />
101 Walter F. Murphy & Joseph Tanenhaus, Public Opinion and the United States Supreme Court: A Preliminary<br />
Mapping of Some Prerequisites for Court Legitimation of Regime Changes, 286–294, in Grossman<br />
and Tanenhaus (eds.) 1969, supra n. 67 at 273–303.<br />
102 Herbert Jacob, Judicial and Political Ef<strong>fi</strong>cacy of Litigants: A Preliminary Analysis, 262, in Grossman<br />
and Tanenhaus 1969 (eds.), supra n. 67 at 255–271.<br />
60
common in the late 1960s. 103 Besides creating international connections and networks<br />
and increasing their academic credibility, scholars sought <strong>to</strong> point out that studies on<br />
judicial behavior were common elsewhere <strong>to</strong>o and could therefore be endorsed within<br />
the American universities, in addition <strong>to</strong> the fact that comparative data could be used in<br />
legal politics. Comparative studies also reflected the rise of anthropology and cultural<br />
studies in political and legal scholarship. Scholars with alternative perspectives on legal<br />
problems became more interested in their speci<strong>fi</strong>c meaning in an international context.<br />
The expansion of the studies <strong>to</strong> the comparative <strong>fi</strong>eld also brought up the disciplinary<br />
controversies. Schubert, for instance, wrote that contributions of legal sociology by<br />
legal scholars had not yet been noteworthy either <strong>to</strong> law or <strong>to</strong> sociology, although this<br />
was the case in other countries. 104 Although legal scholars were becoming more interested<br />
in the sociology of law in the late 1960s, scholars of political and behavioral sciences<br />
argued that they carried the burden of the new discipline. The stakes here were the<br />
scholarly schism between legal scholars and political scientists who sought <strong>to</strong> downplay<br />
the role of legal scholars in modern research by pointing out their lag in sociological<br />
studies on law and emphasizing their own success in the <strong>fi</strong>eld.<br />
As the scholarship was growing in the early 1970s, its signi<strong>fi</strong>cance <strong>to</strong> legal scholarship<br />
increased. 105 The foreword of a 1973 symposium on the subject noted that<br />
“[u]nlike legal scholars, who have approached the judicial role from a normative perspective,<br />
political scientists have sought <strong>to</strong> understand the judge as a behavioral organism<br />
whose input has a discernible effect on the law.” 106 Thus, it was argued, since adjudication<br />
was also law-making, and since there was discretion allowing various fac<strong>to</strong>rs <strong>to</strong><br />
affect the decision-making, 107 studies on the impact of extra-legal and personal fac<strong>to</strong>rs<br />
could bring new perspectives on the courts. 108 Recent research had shown that certain<br />
characteristics of judges explained the variability in criminal sentencing 109 and that the<br />
influence of political attitudes was an ordinary aspect of judicial discretion. 110 Some<br />
judges, however, criticized political jurisprudence, arguing that it was uncertain specu-<br />
103 See, e.g., Henry J. Abraham, The Judicial Process: An Introduc<strong>to</strong>ry Analysis of the Courts of the United<br />
States, England, and France (New York: Oxford University Press 1962); Glendon Schubert & David J.<br />
Danelski, (eds.), Comparative Judicial Behavior: Cross-Cultural Studies of Political Decision-Making in<br />
the East and West (New York: Oxford University Press 1969); Grossman and Tanenhaus 1969 (eds.)<br />
supra n. 67 at 43–195; Theodore L. Becker, Comparative Judicial Politics: The Political Functionings of<br />
Courts (Chicago: Rand McNally 1970).<br />
104 Glendon Schubert, From Area Study <strong>to</strong> Mathematical Theory, 5, 11, in Schubert & Danelski (eds.)<br />
1969, supra n. 103 at 3–17.<br />
105 David J. Danelski, Toward Explanation of Judicial Behavior, 42 University of Cincinnati Law Review<br />
659, 666 (1973). And see the symposiums in 1971 Washing<strong>to</strong>n University Law Quarterly 169─383 and<br />
42 University of Cincinnati Law Review 589─677 (1973).<br />
106 Empirical Approaches <strong>to</strong> Judicial Behavior, 42 University of Cincinnati Law Review 589, 589 (1973).<br />
107 Beverly Blair Cook, Sentencing Behavior of Federal Judges ─ Draft Cases of 1972, 42 University of<br />
Cincinnati Law Review 597, 597–599 (1973).<br />
108 Harry Kalven Jr., Toward a Science of Impartial Judicial Behavior, 42 University of Cincinnati Law<br />
Review 591, 592–593 (1973).<br />
109 Cook 1973, supra n. 107 at 630–633.<br />
110 Sheldon Goldman, Conflicts on the U.S. Courts of Appeals 1965–1971: A Quantitative Analysis, 42<br />
University of Cincinnati Law Review 635, 656–657 (1973).<br />
61
lation, 111 and dis<strong>to</strong>rted the general image by concentrating on unanimous decisions. 112<br />
Judges, of course, had a different perspective on the issue, because they were the subjects<br />
of the studies and felt that their profession was being ridiculed. Although they<br />
were aware of the discretion of adjudication, they regarded themselves as as loyal <strong>to</strong> the<br />
law as possible.<br />
Political jurisprudence was a cross-disciplinary, court-centered jurisprudence, and<br />
it reflected the conflict of the 1960s between the traditional and the alternative approach<br />
<strong>to</strong> legal reasoning. Its basic tenets were that the courts were political institutions serving<br />
particular functions in society 113 and the presumption was that the personality of the<br />
judge affected the decisions. 114 Studies on judicial roles showed that the judges differed<br />
in their opinions about their role as the interpreters of law. In these survey studies, some<br />
judges replied that they would make law when it was appropriate while others saw that<br />
they ought merely <strong>to</strong> interpret the law. 115 While Becker noted that the studies had pointed<br />
out merely a “scant correspondence between any judicial role position and any general<br />
political orientation,” 116 studies on the political background of the judges became<br />
more common nonetheless, and it was argued that there was a connection between political<br />
attitudes and judicial roles. 117<br />
Political jurisprudence rose <strong>to</strong> prominence in the late forties, gained more support<br />
during the <strong>fi</strong>fties, and established its position among the schools of judicial research<br />
during the sixties. It was a part of the rise of cross-disciplinary 118 research and the “behavioral<br />
revolution” that occurred in American political sciences in the 1950s and<br />
1960s. 119 It focused on the behavior of judges in context, theorized it, and sought empirically<br />
<strong>to</strong> verify the theories by using elements of sociology, psychology, and political<br />
science. The purpose was <strong>to</strong> understand the judicial process and <strong>to</strong> predict the outcome<br />
of legal cases by de<strong>fi</strong>ning the theoretical framework in which the judges operated and<br />
made their decisions. It also responded <strong>to</strong> the controversial decisions of the Supreme<br />
Court and <strong>to</strong> the expanding demands of the people <strong>to</strong> participate in public affairs. Be-<br />
111 Marvin E. Frankel, Comments of an Independent, Variable Sentencer, 42 University of Cincinnati Law<br />
Review 667, 668–671, and n. 8 (1973).<br />
112 Henry J. Friendly, Of Voting Blocs, and Cabbages and Kings, 42 University of Cincinnati Law Review<br />
673, 673–674 (1973).<br />
113 Grossman & Wells 1972, supra n. 99 at 3–4; David W. Rohde & Harold J. Spaeth, Supreme Court<br />
Decision Making (San Francisco: W. H. Freeman and Company 1976), 4–9, 70–78.<br />
114 See, e.g., Schubert 1974, supra n. 79 at 18–20; Rohde & Spaeth 1976, supra n. 113 at 137–155.<br />
115 Kenneth N. Vines, The Judicial Role in the American States: An Exploration, 467–477, in Grossman<br />
& Tanenhaus 1969 (eds.), supra n. 67 at 461–485; Thomas D. Ungs & Larry R. Baas, Judicial Role Perceptions:<br />
A Q-Technique Study of Ohio Judges, 6 Law & <strong>Society</strong> Review 343, 349–363 (1972); John T.<br />
Wold, Political Orientations, Social Backgrounds, and Role Perceptions of State Supreme Court Judges,<br />
27 Western Political Quarterly 239, 240 (1974); J. Woodford Howard Jr., Role Perceptions and Behavior<br />
in Three U.S. Courts of Appeals, 39 Journal of Politics 916, 918–293 (1977).<br />
116 Becker 1970, supra n. 103 at 51. (Emphasis original.)<br />
117 Wold 1974, supra n. 115 at 241, 246–247; Howard 1977, supra n. 115 at 923–925.<br />
118 Roger E. Backhouse and Philippe Fontaine, Introduction, 12, in Roger E. Backhouse and Philippe<br />
Fontaine (eds.), The His<strong>to</strong>ry of the Social Sciences since 1945 (Cambridge: Cambridge University Press<br />
2010), 1–15.<br />
119 Robert Adcock and Mark Bevir, Political Sciences, 74–79, in Backhouse and Fontaine (eds.) 2010,<br />
supra n. 118 at 71–101.<br />
62
cause of these impulses, political jurisprudence was more a scholarly methodology than<br />
reality, but it grasped parts of the contemporary opinions and criticism of the functions<br />
of the courts.<br />
In general, political jurisprudence endorsed and encouraged the notions of sociological<br />
jurisprudence and realism in judicial studies. It sought <strong>to</strong> de<strong>fi</strong>ne theories of judicial<br />
decision-making that could transcend the normative approach of traditional jurisprudence<br />
and then test these theories in practice in order <strong>to</strong> make them scienti<strong>fi</strong>c. It was<br />
a response <strong>to</strong> the postwar changes in scholarship and society, and sought <strong>to</strong> participate<br />
in jurisprudential controversies and hence <strong>to</strong> legitimize its position in the <strong>fi</strong>eld between<br />
law and political science. The aim of the studies was <strong>to</strong> describe and explain the human<br />
and political aspects of judicial decision-making. By going beyond the written opinions<br />
and emphasizing the fac<strong>to</strong>rs behind them, new concepts of courts and judicial decisionmaking<br />
were needed. The concepts came from the realists, but in the sixties the legal<br />
profession was not as ready as the political scientists <strong>to</strong> adopt extremist views on the<br />
courts. By adapting the realist agenda in the contemporary research, the scholars of political<br />
jurisprudence became pioneers of judicial behavior and contribu<strong>to</strong>rs <strong>to</strong> the sociology<br />
of law.<br />
Legal scholars were also struggling with the problem of how much realism there<br />
ought <strong>to</strong> be in legal scholarship in the 1960s. They, <strong>to</strong>o, were <strong>to</strong> an increasing extent<br />
adopting the methods of realism in their scholarship. Their concerns, however, had a<br />
different emphasis. As Maveety notes, legal scholars paid relatively little attention <strong>to</strong><br />
political jurisprudence because of its “law avoidance”. 120 The realism of the legal profession<br />
of the 1960s was not extreme, and although realist legal scholars considered the<br />
literature of political jurisprudence interesting, 121 they nevertheless considered behavioralism<br />
as “half-Freud and half-fraud.” 122 As legal scholars were elaborating their own<br />
theories of judicial-decision making in the 1960s, the literature on behavioral and political<br />
sciences began <strong>to</strong> seem ever more determinist and absurd. Moreover, political jurisprudence<br />
was court-centered. Its focus was simply on judicial decision-making, which<br />
made its perspective relatively narrow and hence not very interesting <strong>to</strong> legal scholars<br />
who needed a more comprehensive theory of law and society. Thus, although political<br />
jurisprudence contributed <strong>to</strong> the studies of the courts, its signi<strong>fi</strong>cance for legal scholarship<br />
remained slight. Legal scholars looked elsewhere for influences for new theories,<br />
and <strong>to</strong> these we shall now turn.<br />
120 Maveety 2003, supra n. 66 at 18.<br />
121 Arthur Selwyn Miller, Book Review [Judicial Behavior], 43 Texas Law Review 996, 998 (1965).<br />
122 Arthur Selwyn Miller, The Law School as a Center for Policy Analysis, 47 Denver Law Journal 587,<br />
590 (1970).<br />
63
2.4 The Law and Development movement: A cultural approach <strong>to</strong> law<br />
Law and development was a movement relating <strong>to</strong> the American efforts <strong>to</strong> aid the development<br />
of the third-world countries in the 1950s and 1960s. The scholarship matured<br />
in the 1960s when legal scholars began <strong>to</strong> take a great role in the process. The purpose<br />
of the project was <strong>to</strong> support social and economic development through improving the<br />
legal institutions of the third-world countries, and the purpose of the scholarship was <strong>to</strong><br />
investigate the potential for social development through law. What began as an optimistic<br />
effort at improvement turned in<strong>to</strong> skepticism in the late 1960s, and by the early<br />
1970s the majority of the law and development scholars realized that their project was<br />
in crisis. Rising in the wake of the postwar reconstruction and Cold War atmosphere,<br />
law and development was an image of its time; in part honest humanitarian assistance,<br />
legal missionary work, international power struggle, and cultural imperialism. 123<br />
At the center of law and development was an instrumental conception of law. Its<br />
focus was on the possibilities of law as a <strong>to</strong>ol in promoting social and economic development.<br />
124 As the events of the 1960s weakened optimism for improvement, scholars<br />
also became more critical of their efforts and particularly of the formalist conception of<br />
law. They noted that law had long been a <strong>to</strong>ol of imperialism, and since Western legal<br />
institutions were dif<strong>fi</strong>cult <strong>to</strong> manage in foreign countries, westernized law was a more<br />
stabilizing than stimulating fac<strong>to</strong>r. 125 Even if the development perspective was more<br />
optimistic, the dif<strong>fi</strong>culties of development without fundamental reforms in the legal system<br />
and education were acknowledged. 126 There were also dif<strong>fi</strong>culties in making the<br />
changes in formal law effective in legal practice, besides the fact that there had <strong>to</strong> be a<br />
balance between legal reform according <strong>to</strong> the foreign model and indigenous law. 127<br />
Experience proved that the potential of law as an instrument of change was rather<br />
vague and facing particular dif<strong>fi</strong>culties in foreign cultures. Even the less critical views<br />
noted the differences between the legal systems of different societies, which meant that<br />
law was <strong>to</strong> be unders<strong>to</strong>od in its cultural and social context. Changes in legal institutions<br />
were not possible without fundamental changes in society, and Western law could not<br />
be adapted <strong>to</strong> countries with fundamentally different social and cultural structures.<br />
Scholars realized that transplanting law was not simple and good intentions often led <strong>to</strong><br />
negative outcomes, which made them reconsider the basis of their task.<br />
123 James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison,<br />
Wisconsin: The University of Wisconsin Press 1980), 6–12, 27–52, 231–235, 282–288.<br />
124 Law and development literature is reviewed in Elliot M. Burg, Law and Development: A Review of<br />
the Literature & a Critique of “Scholars in Self-Estrangement”, 25 American Journal of Comparative Law<br />
492–530 (1977). See also Gardner 1980, supra n. 123, in which both the project and the scholarship are<br />
analyzed, although from a critical perspective.<br />
125 Lucian W. Pye, Aspects of Political Development (Bos<strong>to</strong>n: Little, Brown and Company 1966), 113–<br />
125.<br />
126 Kenneth L. Karst, Law in Developing Countries, 60 Law Library Journal 13–20 (1967).<br />
127 Marc Galanter, The Modernization of Law, 172–179, in Myron Weiner (ed.), Modernization: The<br />
Dynamics of Growth (Voice of American Lectures 1966), 167–179.<br />
64
The mixed motives of both the aid and the scholarship caused further problems in<br />
the enterprise. While acknowledging the problems of development but encouraging the<br />
research nonetheless, Seidman and Thome wrote in the late 1960s that there were serious<br />
business interests in the third world which also affected the scholarship because, as<br />
they argued, “the researcher usually hopes the results will contribute <strong>to</strong> the solution of<br />
actual problems.” 128 The scholarship was advanced more in the universities and dealt<br />
with important issues, but it also faced problems that drove the scholars <strong>to</strong> criticize and<br />
<strong>to</strong> elaborate their work.<br />
The problems of cultural differences were indeed pressing. This became obvious<br />
once the scholars began consistently <strong>to</strong> contemplate the conception of legal culture. One<br />
of the most promising young scholars of sociological jurisprudence, Lawrence Friedman,<br />
wrote that if the legal scholar “believed completely in the cultural relativity of law,<br />
he would know he had no business abroad.” 129 There were ambiguous concepts such as<br />
“development”, “legal system,” and “modern,” the meaning of which was uncertain.<br />
Furthermore, scholars had merely assumed the impact of law on society without thorough<br />
cultural analysis. 130 Here the scholars faced the problem of investigating a particular<br />
phenomenon in various contexts. This revealed the importance of the structures<br />
within which the law operated, and increased the awareness of the fact that law was the<br />
construction of a society rather than something that could be instilled in<strong>to</strong> it.<br />
Thus, the concept of legal culture became important. As we saw, anthropology<br />
rose <strong>to</strong> prominence in the postwar years, and hence in the 1960s, <strong>to</strong>gether with the problems<br />
of law and development, legal anthropology was also attracting more interest. 131<br />
Studies on the anthropology of law reflected the notion that different people perceived<br />
reality, and law, differently. Law was therefore not <strong>to</strong> be regarded as formal rules with<br />
speci<strong>fi</strong>c consequences, but rather as something that depended on the structures of the<br />
society it was part of. Studies on the law of foreign societies required speci<strong>fi</strong>c information<br />
on that society and culture. This, then, led <strong>to</strong> the more speci<strong>fi</strong>c elaboration of the<br />
concept of legal culture. 132 Scholars began <strong>to</strong> attend more <strong>to</strong> the prerequisites of the<br />
128 Robert B. Seidman and Jospeh R. Thome, The Foreign Law Programs: The Wisconsin Idea in a World<br />
Context, 1968 Wisconsin Law Review 362, 362–365, quotation at 365. The authors proposed a model for<br />
a law and development project that was aware of the problems relating <strong>to</strong> the enterprise.<br />
129 Lawrence M. Friedman, On Legal Development, 24 Rutgers Law Review 11, 13 (1969).<br />
130 Id. at 11–64.<br />
131 Laura Nader (ed.), The Ethnography of Law (Menasha, Wisconsin: American Anthropological Association<br />
1965); Laura Nader (ed.), Law in Culture and <strong>Society</strong> (Chicago: Aldine Publishing Company<br />
1969). See also Laura Nader, Klaus F. Koch and Bruce Cox, The Ethnography of Law: A Bibliographical<br />
Survey, 7 Current Anthropology 267–294 (1966). According <strong>to</strong> Schubert, legal realism had an idiosyncratic<br />
tie with legal anthropology but the real influences came from postwar anthropologist ethnographers.<br />
(Schubert 1969, supra n. 103 at 5–6.) Critical legal scholars, when they began <strong>to</strong> apply anthropological<br />
methods in their studies, often stressed the importance of legal realism <strong>to</strong> legal anthropology.<br />
(Richard L. Abel, A Comparative Theory of Dispute Institutions in <strong>Society</strong>, 8 Law & <strong>Society</strong> Review<br />
217, n. 26 (1973).) The emphasis depends on the interests of the scholar in question, but it seems nonetheless<br />
that the influence of legal realism on legal anthropology was not as great as the influence of general<br />
anthropology and ethnography.<br />
132 Lawrence M. Friedman, Legal Culture and Social Development, 4 Law & <strong>Society</strong> Review 29–44<br />
(1969).<br />
65
functioning of law and <strong>to</strong> the unconscious impacts of law. It also encouraged crossdisciplinary<br />
and comparative studies of law because it broadened the perspective on the<br />
function of the law.<br />
In the early 1970s, law and development scholars became more critical of the possibilities<br />
of development and were often either very pessimistic about their scholarship<br />
or sought <strong>to</strong> elaborate their theories. 133 Reformers sought <strong>to</strong> create more nuanced theories<br />
that would be more particular about the circumstances of society, expand the distinction<br />
between law in books and law in action in the governmental agencies, and place<br />
the public in a structural and behavioral context. 134 This kind of theory was useful because<br />
rules that worked in some legal systems did not necessarily have the same effects<br />
in others. 135 The problems with development had pointed out that what was needed was<br />
a theory of law that was sensitive <strong>to</strong> the law in action in particular structures. Simple<br />
observation was not adequate, a more critical and comprehensive perspective being<br />
needed.<br />
A devoted law and development scholar, and a future critical legal scholar, David<br />
Trubek, <strong>to</strong>ok the critique of law and development <strong>to</strong> a more fundamental level, noting<br />
that there was a serious need for a fundamental analysis of law and society. Since law<br />
had failed <strong>to</strong> produce the desired effects, it was rather the social circumstances than law<br />
that was <strong>to</strong> be investigated. 136 The failures of the development programs had revealed<br />
the inability of law <strong>to</strong> have an impact on social structures. Rather, Trubek noted, law<br />
reflected the social, political, and economic power structures of society and then contributed<br />
<strong>to</strong> their preservation. Law did not produce change but, consciously or unconsciously,<br />
protected the existing structures, and the fact that problems were characterized<br />
as legal only denied the fact that they also included political questions. 137 Trubek’s fundamental<br />
analysis of law and society <strong>to</strong>ok the structural biases in<strong>to</strong> account. A major<br />
problem for the scholars studying law in different cultures was <strong>to</strong> elaborate a theory of<br />
law that would be generally applicable. The realization of the structural connections<br />
made the critical scholars examine the construction and manifestation of legal phenomena<br />
in different cultures. Thus, by the early 1970s, the attention of critical legal scholars<br />
was shifting <strong>to</strong>wards the preconditions of the legal system.<br />
The failure of law and development was thus reflected back on the paradigm of<br />
law. Trubek and Marc Galanter, both of whom had been disappointed by the experiences<br />
in law and development, argued that a reason for the failure was the faith in liberal<br />
legalism that underlined the consciousness of the United States. They thought that<br />
scholars had uncritically assumed that law could bring social change, even though law<br />
133 See, e.g., the Symposium in 1972 Wisconsin Law Review 684–923.<br />
134 Robert B. Seidman, Law and Development: A General Model, 6 Law & <strong>Society</strong> Review 311, 316–338<br />
(1972).<br />
135 Robert B. Seidman, The Communication of Law and the Process of Development, 1972 Wisconsin<br />
Law Review 686, 697.<br />
136 David M. Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development,<br />
82 Yale Law Journal 1, 1–10, 21–22 (1972).<br />
137 Id. at 15, 30–39.<br />
66
in fact had certain economic and political biases and therefore unwanted and undesirable<br />
effects. 138 The failure was thus more in the consciousness of the legal scholar than in<br />
the efforts as such, since, as Trubek and Galanter argued, law and development scholars<br />
sincerely believed in liberal legalism, and it <strong>to</strong>ok some time <strong>to</strong> understand this false belief.<br />
“Law and development scholars did not, however, create the critical perspective on<br />
the social role of law in the United States; they merely responded <strong>to</strong> it.” 139 As will be<br />
seen later, there was a crisis of law in the early 1970s, which law and development<br />
formed part of. Scholars within the movement came <strong>to</strong> realize that their work was preconditioned<br />
by ideological fac<strong>to</strong>rs <strong>to</strong> an extent they scarcely credit. The criticism sought<br />
<strong>to</strong> point out that development itself was an open concept determined by the western<br />
consciousness. One of the notions with which law and development was particularly<br />
influential was that law and legal ideals were products of a particular society.<br />
At a time when former colonies gained independence, western countries sought <strong>to</strong><br />
provide assistance with benevolent, political, and economic reasons. The hopes were,<br />
however, proven false with the continuous failures. At the same pace as the disappointment<br />
with the developing mission, the critical consciousness of law spread. Even if law<br />
and development did not produce the critical perspective on law, it nevertheless contributed<br />
<strong>to</strong> it. It failed many young leftist scholars 140 and encouraged the creating of<br />
alternative paradigms <strong>to</strong> modern law. 141 It also contributed <strong>to</strong> the evolution of legal anthropology,<br />
studies on legal culture, comparative legal studies, the structural conception<br />
of law, and the notion of law as imperialism. Scholars lost their faith in the neutrality of<br />
law and began <strong>to</strong> observe legal matters in a different way. Critical scholars were set <strong>to</strong><br />
search for a completely new understanding of law in society.<br />
2.5 The Law and <strong>Society</strong> movement: A social approach <strong>to</strong> law<br />
Law and society was a jurisprudential movement that examined law in its social context.<br />
Although theories within the movement varied, its fundamental premises were that<br />
law was a human product which served certain functions in society, and the purpose of<br />
scholarship was <strong>to</strong> understand these functions. 142 The movement developed in the 1950s<br />
and early 1960s as a counter movement <strong>to</strong> the more doctrinal and value-neutral schools<br />
138 David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in<br />
Law and Development Studies in the United States, 1974 Wisconsin Law Review 1062, 1070–1080,<br />
1083–1084.<br />
139 Id. at 1088, 1091, quotation at 1091.<br />
140 Gardner 1980, supra n. 123 at 211–230. Among them were at least Rober<strong>to</strong> Unger (see id. at 79–81,<br />
119–122) and Duncan Kennedy (see id. at 227 and n. 43 on p. 351) besides Trubek and Galanter, of<br />
course.<br />
141 Duxbury 1995, supra n. 42 at 440.<br />
142 Lawrence M. Friedman, The Law and <strong>Society</strong> Movement, 38 Stanford Law Review 763, 763–764<br />
(1986). As a general introduction <strong>to</strong> the law and society scholarship, see also Lawrence M. Friedman,<br />
Law and <strong>Society</strong>: An Introduction (Englewood Cliffs, New Jersey: Prentice-Hall 1977).<br />
67
of jurisprudence. Its purpose was <strong>to</strong> bring more realist notions in<strong>to</strong> legal scholarship and<br />
examine law in its social context as an instrument mediating conflicting social interests<br />
and arranging social institutions. 143 The movement developed at the same time as sociology<br />
of law was becoming a major discipline. The cradle of law and society is nonetheless<br />
often seen <strong>to</strong> be the University of Wisconsin Law School, where the scholarship<br />
of James Willard Hurst was particularly important. At least from the 1950s onwards, he<br />
had emphasized the instrumental conception of law and combined elements of realism<br />
and modern process jurisprudence, thus creating what has been termed “an alternative<br />
process tradition in American jurisprudence”. 144<br />
The interest in inter-disciplinary studies in law led <strong>to</strong> the establishment of the Law<br />
and <strong>Society</strong> Association in 1964. A section in Wisconsin Law Review functioned as its<br />
publication channel at <strong>fi</strong>rst, and its own journal, Law & <strong>Society</strong> Review, was founded in<br />
1966. 145 The law and society movement was born during a time when the impact of legal<br />
realism was waning because it was absorbed in<strong>to</strong> the mainstream scholarship, and<br />
its interest in the early days was concentrated on the civil rights struggles and liberal<br />
reforms of contemporary society. 146 Research responded <strong>to</strong> the changes in science and<br />
society, bringing sociological and realist elements back in<strong>to</strong> legal scholarship and focusing<br />
on the important contemporary social and legal problems.<br />
Among other things, the development of law and society relates <strong>to</strong> the rise of the<br />
sociology of law, whose origins are in the late nineteenth and early twentieth centuries,<br />
but it did not emerge as a systematic <strong>fi</strong>eld of study until the postwar years. By the mid-<br />
1960s, there was a lively and sophisticated tradition of sociology of law in America. 147<br />
Even if sociology of law had a <strong>fi</strong>rm basis, many legal scholars and lawyers either argued<br />
that it was not very useful for legal scholarship, 148 or that they had dif<strong>fi</strong>culty in understanding<br />
the rambling expressions of sociology. 149 Legal scholarship had thus <strong>to</strong> adapt<br />
itself <strong>to</strong> sociological studies in order <strong>to</strong> create a comprehensive sociological theory of<br />
143 Bryant Garth & Joyce Sterling, From Legal Realism <strong>to</strong> Law and <strong>Society</strong>: Reshaping Law for the Last<br />
Stages of the Social Activist State, 32 Law & <strong>Society</strong> review 409, 409 (1998); G. Edward White, From<br />
Realism <strong>to</strong> Critical Legal Studies: A Truncated Intellectual His<strong>to</strong>ry, 40 Southwestern Law Journal 819,<br />
830–832 (1987).<br />
144 Duxbury 1995, supra n. 42 at 441; Garth & Sterling 1998, supra n. 143 at 413–455. Wisconsin was the<br />
most important place for the development of the Law and <strong>Society</strong> Association. For instance, the Center<br />
for the Study of Law and <strong>Society</strong> at the University of California, Berkeley, was another important place<br />
which, however, relates more <strong>to</strong> sociology of law than <strong>to</strong> law and society scholarship.<br />
145 Robert B. Yegge, The Law and <strong>Society</strong> Association <strong>to</strong> Date, 1 Law & <strong>Society</strong> Review 3–4 (1966).<br />
146 David M. Trubek, Back <strong>to</strong> the Future: The Short, Happy Life of the Law and <strong>Society</strong> Movement, 18<br />
Florida State University Law Review 1, 20–21, 39, n. 76 (1990).<br />
147 Jerome H. Skolnick, The Sociology of Law in America: Overview and Trends, 13 Social Problems 4–<br />
39 (1965, special issue). Skolnick writes that “[v]irtually all empirical studies directly in the sociology of<br />
law in America ─ that is, work by professional sociologists that is not mainly criminological ─ began<br />
later than 1950.” (Id. at 5.) Although Skolnick’s conception of sociology of law was contested as being<br />
<strong>to</strong>o narrow (Carl A. Auerbach, Legal Tasks for the Sociologist, 1 Law & <strong>Society</strong> Review 91, 98–103<br />
(1966)), his his<strong>to</strong>rical interpretation seems quite accurate because most of the literature Auerbach would<br />
include in the sociology of law dates from 1950 onwards. On the methodological controversies between<br />
Berkeley and Wisconsin, see Garth & Sterling 1998, supra n. 143 at 459–460.<br />
148 Harry W. Jones, A View from the Bridge, 13 Social Problems 39, 41–44 (1966, special issue).<br />
149 Saul Cohen, Can Sociologists Talk <strong>to</strong> Lawyers? 2 Law & <strong>Society</strong> Review 341–343 (1968).<br />
68
law that could be used in legal studies, and in the 1960s legal scholars combined sociology,<br />
sociological jurisprudence, legal realism, behavioral and political jurisprudence,<br />
and various social theories in<strong>to</strong> their sociological approach <strong>to</strong> law. 150 Legal scholarship<br />
had <strong>to</strong> meet the social changes, and law and society scholarship was a response <strong>to</strong> them.<br />
Since legal scholars felt the need <strong>to</strong> pay closer attention <strong>to</strong> the ways law corresponded <strong>to</strong><br />
social institutions and norms, they had also <strong>to</strong> adopt alternative methods for research.<br />
By stepping beyond the boundaries of traditional scholarship, the sociologically oriented<br />
scholars sought <strong>to</strong> analyze the ways law responded and reacted <strong>to</strong> social practices.<br />
Law and society was also a critical movement. Its purpose was <strong>to</strong> investigate the<br />
functions of law in society in realistic and critical terms, as well as <strong>to</strong> explain the gap<br />
between law in books and law in action. As the war on poverty and the Great <strong>Society</strong><br />
program were initiated in the 1960s, legal scholars examined the problems of poverty<br />
and the inability of law <strong>to</strong> bring relief. They noted that “[t]he contention is that <strong>to</strong>day as<br />
in the past the law primarily serves <strong>to</strong> protect and enhance the rights and interests of<br />
property holders and those in positions of wealth and authority.” 151 The critical view of<br />
the 1960s held that problems of inequality originated in society, law often maintained<br />
these inequalities, and when the law set out <strong>to</strong> correct the evils, the reality was something<br />
else. Alternative scholars opined that traditional doctrinal analysis ignored these<br />
problems but the alternative studies explored them.<br />
For instance, racial discrimination and inequality were serious problems in the<br />
1960s with which the alternative legal scholars struggled. 152 The Supreme Court had<br />
invalidated racial segregation in 1954, but segregation and racial discrimination were<br />
still the reality in the mid-1960s. In this regard, then, law did not have a marked impact.<br />
153 Studies also pointed out that the racist atmosphere of southern societies affected<br />
the judges in a way that made it dif<strong>fi</strong>cult <strong>to</strong> enforce civil rights law. 154 The scholars argued<br />
that even if formal law forbade discrimination, it continued in social reality, and<br />
although the law was not biased <strong>to</strong>ward the powerful, it in fact preserved the discrimina<strong>to</strong>ry<br />
and unequal practices. Alternative legal scholarship sought <strong>to</strong> reveal the problems<br />
that lay behind legal doctrines and principles, which were seen as incapable of solving<br />
social problems alone.<br />
Thus, the “life of law” was at the center of law and society scholarship. As one<br />
study pointed out, the rules of contract law were not often followed in relations of busi-<br />
150 See, e.g., Edwin M. Schur, Law and <strong>Society</strong>: A Sociological View (New York: Random House 1969).<br />
The book synthesizes the sociological theories of law of the 1960s.<br />
151 Jerome E. Carlin, Jan Howard, Sheldon L. Messinger, Civil Justice and the Poor: Issues for Sociological<br />
Research, 1 Law & <strong>Society</strong> Review 9, 12 (1966). The authors noted at least three ways in which law<br />
was biased <strong>to</strong>ward the powerful. Law might be favorable <strong>to</strong>ward parties that were typically in a better<br />
position, there might be dual systems of law such as racial segregation, and there was de fac<strong>to</strong> bias when<br />
law was neutral in books but discrimina<strong>to</strong>ry in action. (Id. at 12–26.)<br />
152 See the Symposium on Af<strong>fi</strong>rmative Integration: Studies of Efforts <strong>to</strong> Overcome De Fac<strong>to</strong> Segregation<br />
in the Public Schools, 2 Law & <strong>Society</strong> Review 11─104 (1967) and Reflections on Recent Studies in<br />
Race and Education, 2 Law & <strong>Society</strong> Review 105─165 (1967).<br />
153 Carlin; Howard; Messinger 1966, supra n. 151 at 19–21.<br />
154 Charles V. Hamil<strong>to</strong>n, Southern Judges and Negro Voting Rights: The Judicial Approach <strong>to</strong> the Solution<br />
of Controversial Social Problems, 1965 Wisconsin Law Review 72, 74.<br />
69
ness exchange, and legal practice did not thus necessarily follow the normative aspects<br />
of law. 155 Research also concerned the impact of law in society, 156 the behavior of judges,<br />
157 and the effects of various kinds of regulations in order <strong>to</strong> evaluate their appropriateness.<br />
158 Alternative legal scholars considered it important <strong>to</strong> study the way the decisions<br />
of the courts were actually met in social reality because “[a] particular decision<br />
may rest upon a legally impeccable rationale; at the same time it may be rendered nuga<strong>to</strong>ry<br />
or self-defeating by contingencies imposed by aspects of social reality of which the<br />
lawmakers are themselves unaware.” 159 The aim was <strong>to</strong> provide information on the actual<br />
social functions and effects of law. At stake in the law and society scholarship was<br />
that if legal rules and principles on paper did not match the rules and principles of action,<br />
there was something wrong with the system that had <strong>to</strong> be revealed.<br />
Law and society was also responsive <strong>to</strong> other alternative legal scholarship, which<br />
can be seen, for example, in the importance of legal culture <strong>to</strong> it. Law and development<br />
with its emphasis on the law in action in cultural and social contexts was closely similar<br />
<strong>to</strong> law and society scholarship, 160 but even if many of the law and development scholars<br />
continued their careers in the law and society movement, the latter did not directly grow<br />
out of the former. 161 They developed at the same time, and law and development simply<br />
contributed <strong>to</strong> the evolution of law and society. In addition, survey studies on legal culture<br />
which contributed signi<strong>fi</strong>cantly <strong>to</strong> the amount of information on people’s conceptions<br />
of law grew signi<strong>fi</strong>cantly after the mid-1960s 162 contributing <strong>to</strong> the understanding<br />
of law as a relative phenomenon.<br />
Many of the scholars of political jurisprudence were also in contact with law and<br />
society and became even more attached <strong>to</strong> the movement when the competition within<br />
political science and political jurisprudence became more intense. 163 Schubert, who was<br />
advertising behavioral studies for legal scholars, wrote that for a long time “the science<br />
of law has been a dull esoteric subject, with traditional logic its long suit and the syllo-<br />
155 Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 American Sociological<br />
Review 55–67 (1963).<br />
156 Richard Lempert, Strategies of Research Design in the Legal Impact Study: The Control of Plausible<br />
Rival Hypotheses, 1 Law & <strong>Society</strong> Review 111–132 (1966).<br />
157 Theodore L. Becker, Surveys and Judiciaries, or Who’s Afraid of the Purple Curtain? 1 Law & <strong>Society</strong><br />
Review 133–143 (1966).<br />
158 William C. Whitford, Law and the Consumer Transaction: A Case Study of the Au<strong>to</strong>mobile Warranty,<br />
1968 Wisconsin Law Review 1006–1098.<br />
159 Abraham Blumberg, The Practice of Law as Con<strong>fi</strong>dence Game: Organizational Cooptation of a Profession,<br />
1 Law & <strong>Society</strong> Review 15, 16 (1967).<br />
160 There was a symposium on law and development, especially concerning India, in 3 Law & <strong>Society</strong><br />
Review 195─468 (1969), and the more critical symposium in 1972 Wisconsin Law Review, see supra n.<br />
133.<br />
161 Duxbury 1995, supra n. 42 at 440.<br />
162 Austin Sarat, Studying American Legal Culture: An Assessment of Survey Evidence, 11 Law & <strong>Society</strong><br />
Review 427–488 (1977). Studies on legal culture, when culture means the conceptions the people have<br />
of law, began in the 1950s, but its volume grew tremendously in the latter half of the 1960s. Legal realism<br />
provided the justi<strong>fi</strong>cation for the survey studies because it had stressed the arbitrary nature of the law. (Id.<br />
at 428.)<br />
163 Garth & Sterling 1998, supra n. 143 at 463–464.<br />
70
gism its ace in the hole.” 164 He concluded that recent currents in political science could<br />
be used in legal scholarship <strong>to</strong> turn it in<strong>to</strong> a science with cross-disciplinary theories,<br />
empirical research, and sophisticated scienti<strong>fi</strong>c analysis. 165 A common feature of the<br />
various forms of alternative legal scholarship was the fact that they encouraged crossdisciplinary<br />
research and sought <strong>to</strong> go beyond legal doctrine in order <strong>to</strong> analyze law in<br />
action. Differences between law and society and political jurisprudence were that the<br />
latter focused on the judiciary and speculated on the behavior of the judges, whereas the<br />
former focused more on the social functions and the effects of law in a broader sense.<br />
Whereas political jurisprudence applied behavioral and political sciences <strong>to</strong> judicial<br />
studies, law and society was an effort <strong>to</strong> elaborate a systematic theory and research on<br />
the social functions of law.<br />
His<strong>to</strong>ry, society, and culture were all important <strong>to</strong> law and society scholarship, but<br />
it was nonetheless legal scholarship. Lawrence Friedman noted the importance of legal<br />
rules for research since they were “important social facts.” 166 There were different kinds<br />
of rule formulations, and studies on the his<strong>to</strong>rical and social context of rules were important<br />
in explaining the purposes of the rules. 167 It was also considered important <strong>to</strong><br />
study the concept of legalism which, according <strong>to</strong> Friedman, was a dynamic type of<br />
legal reasoning and a part of all kinds of legal systems, followed social trends, provided<br />
reasons for dif<strong>fi</strong>cult decisions, and served “<strong>to</strong> legitimize arbitrary decisions where preference<br />
for particular alternatives is dif<strong>fi</strong>cult <strong>to</strong> justify through reason or policy.” 168 In<br />
addition, in an empirical, his<strong>to</strong>rical, and realist analysis of a legal doctrine in action,<br />
Stewart Macaulay analyzed the contractual duty <strong>to</strong> read the private terms of a contract<br />
with respect <strong>to</strong> cases of credit card losses, and considered the relationship between social<br />
policy, contract law, and private business terms. 169<br />
Thus, his<strong>to</strong>rical and social dimensions helped <strong>to</strong> analyze legal rules and doctrines.<br />
As Friedman and Macaulay argued, one could obtain a critical perspective on the legal<br />
practices through interdisciplinary research on law in society. 170 This was important<br />
because in reality legal rules were discretionary and law might be biased in fact, 171 and<br />
164 Glendon Schubert, Behavioral Jurisprudence, 2 Law & <strong>Society</strong> Review 407, 407 (1968). (Footnote<br />
omitted.)<br />
165 Id. at 409–411, 420–428.<br />
166 Lawrence M. Friedman, Law, Rules, and the Interpretation of Written Documents, 59 Northwestern<br />
University Law Review 751, 751 (1965).<br />
167 Id. at 751–755. Interestingly, Friedman distinguished rules as manda<strong>to</strong>ry and discretionary. The former<br />
gave the solution directly whereas the latter were less stringent. (Id. at 753–754.) Not many steps would<br />
have been needed <strong>to</strong> elaborate a theory strikingly similar <strong>to</strong> that Dworkin developed a couple of years<br />
later. At least in his 1966 article Dworkin does not refer <strong>to</strong> Friedman. Nevertheless, it would thus indeed<br />
be interesting <strong>to</strong> analyze the context in which the theory of rules and principles was developed.<br />
168 Lawrence M. Friedman, On Legalistic Reasoning ─ A Footnote <strong>to</strong> Weber, 1966 Wisconsin Law Review<br />
148, 148–154, 161–163, 167–171, quotation at 171.<br />
169 Stewart Macaulay, Private Legislation and the Duty <strong>to</strong> Read ─ Business Run by IBM Machine, the<br />
Law of Contracts and Credit Cards, 19 Vanderbilt Law Review 1051–1121 (1966).<br />
170 Lawrence M. Friedman and Stewart Macaulay, Law and the Behavioral Sciences (Indianapolis: The<br />
Bobbs-Merrill Company 1969), viii–x.<br />
171 Lawrence M. Friedman, Legal Rules and the Process of Social Change, 19 Stanford Law Review 786,<br />
791–794, 803, 806 (1967).<br />
71
new regulations might prove insigni<strong>fi</strong>cant. 172 While the critical aspect was fundamental<br />
<strong>to</strong> the research, the purpose was <strong>to</strong> understand how law functioned, not <strong>to</strong> criticize it.<br />
The formulation of rules and their application both described the way law reflected society<br />
and an analysis of law in context pointed out the fallacies of law and helped <strong>to</strong><br />
understand the legal reality.<br />
The academic aspect was also important, since teaching law in context was an elementary<br />
part of law and society from the beginning. The educational aspect was advanced<br />
in a book published in 1961 that was meant <strong>to</strong> be an introduction <strong>to</strong> the legal<br />
system for law students and other advanced students interested in law. The book gathered<br />
cases and materials from American law combined with legal literature, much of<br />
which was realist literature, the purpose being <strong>to</strong> provide an introduction <strong>to</strong> law in its<br />
social context, “not <strong>to</strong> teach legal doctrines in any particular area of substantive law, but<br />
rather <strong>to</strong> present methods and processes… common <strong>to</strong> all areas… examined in action.”<br />
173 The aim was <strong>to</strong> provide a comprehensive account of the legal system in its his<strong>to</strong>rical<br />
and social context so that the reader could understand the causes and purposes of<br />
legal institutions. The publication of the book reflected the nascent expansion of the<br />
alternative legal scholarship as well as the emergence of law and society.<br />
The purpose of the alternative legal scholarship was <strong>to</strong> point out the use of other<br />
sciences in legal studies. Arising in the University of Wisconsin, his<strong>to</strong>ry was in a critical<br />
position in law and society scholarship apart from sociology. 174 His<strong>to</strong>ry was often<br />
used in law and society legal analysis, and was also an important fac<strong>to</strong>r in the dynamic<br />
that was signi<strong>fi</strong>cant in the evolution of critical legal studies, as will be seen later. In addition,<br />
other disciplines, such as social and behavioral sciences, were mixed in with legal<br />
studies in law and society scholarship. The combination of disciplines was seen in<br />
the study book by Friedman and Macaulay, published in 1969, 175 in which the authors<br />
issued a collection of studies on law that applied some alternative methods <strong>to</strong> doctrinal<br />
analysis, aiming <strong>to</strong> show that alternative approaches revealed important facts about legal<br />
reality and were therefore important for lawyers.<br />
Law and society, a movement of legal scholarship that applied interdisciplinary<br />
methods in legal analysis, developed during the <strong>fi</strong>fties and reached an established position<br />
in the sixties. Its development occurred just as political jurisprudence and law and<br />
172 William C. Whitford, Strict Products Liability and the Au<strong>to</strong>mobile Industry: Much Ado about Nothing,<br />
1968 Wisconsin Law Review 83–171.<br />
173 Carl A. Auerbach, Lloyd K. Garrison, Willard Hurst, Samuel Mermin, The Legal Process: An Introduction<br />
<strong>to</strong> Decision-making by Judicial, Legislative, Executive, and Administrative Agencies (San Francisco:<br />
Chandler Publishing Company 1961), vi.<br />
174 Legal his<strong>to</strong>ry, and more precisely the instrumentalist view of legal his<strong>to</strong>ry, was indeed a major part of<br />
law and society, which comes naturally from the huge influence of J. Willard Hurst on the development<br />
of the movement. Hurst, after all, was a legal his<strong>to</strong>rian. His view of law as a <strong>to</strong>ol of social change is aptly<br />
depicted in his monumental treatise on American legal his<strong>to</strong>ry in which he wrote that “[w]e shall get a<br />
more realistic grasp of the part law has played in United States his<strong>to</strong>ry if we keep in mind this readiness<br />
of Americans <strong>to</strong> use it as a means <strong>to</strong> bring about immediate practical results.” (James Willard Hurst, The<br />
Growth of American Law: The Law Makers. Little, Brown and Company. Bos<strong>to</strong>n 1950, 4). (For Hurst’s<br />
methodology in general, see id. at 3–19.)<br />
175 Friedman and Macaulay 1969, supra n. 170.<br />
72
development were pushing forward. Law and society shared much with them, but it was<br />
more “legal” than political jurisprudence and more speci<strong>fi</strong>c than law and development.<br />
It did not reduce law <strong>to</strong> values and ideologies but rather examined it in its his<strong>to</strong>rical,<br />
social, and cultural context. It also extended the <strong>fi</strong>eld of research away from the judiciary<br />
<strong>to</strong> society more generally. Political jurisprudence was court-centered and investigated<br />
the behavior of judges and the policy implications of decisions, but law and society<br />
explored various aspects of law, analyzing legal doctrines in action.<br />
Law and society also challenged the tradition of legal scholarship by denying the<br />
neutrality of law, perceiving it as a human product, an instrument of social organization.<br />
With its emphasis on context, it distanced itself from the postwar urge <strong>to</strong>ward reasonability<br />
and the logic of process, being thus more a jurisprudence of substance than process.<br />
It had a critical aspect, but it did not stretch the criticism <strong>to</strong> the extreme, seeking<br />
rather <strong>to</strong> understand the purposes and functions of law. As law and development, law<br />
and society also had an education agenda through which it tried <strong>to</strong> challenge the mainstream<br />
legal education with a more realist curriculum. Of the alternative legal scholarship<br />
of the 1960s, law and society related most closely <strong>to</strong> the actual social problems. It<br />
thus contributed <strong>to</strong> the awareness of social failings as well as <strong>to</strong> the critical understanding<br />
of law, society, and scholarship.<br />
2.6 Critical perspectives on law in society<br />
Problems of the 1960s caused new concerns for the legal profession. Social problems,<br />
the war on poverty, and the project for a great society gave new ideas <strong>to</strong> both young and<br />
more experienced lawyers. As the interests of the underdog became recognized, lawyers<br />
began seriously <strong>to</strong> contemplate alternatives <strong>to</strong> deal with the social problems and <strong>to</strong> provide<br />
legal services <strong>to</strong> those who needed them but lacked the means <strong>to</strong> obtain them. 176<br />
Courts had been used as forums of social change before, but the sixties brought a remarkable<br />
change, 177 when the needs of the poor were better recognized, 178 and groups<br />
of radical lawyers dedicated their careers <strong>to</strong> assisting them. 179 The new orientation of<br />
176 Edgar S. Cahn and Jean C. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale Law Journal<br />
1317–1352 (1964). Government, for example, established the Legal Services Program <strong>to</strong> provide legal<br />
counseling for the poor.<br />
177 Jules Lobel, Courts as Forums of Protest, 52 UCLA Law Review 477, 493–510 (2004). Early efforts <strong>to</strong><br />
litigate for social change involved the abolition of slavery and women’s rights in the nineteenth century.<br />
The twentieth century brought various organizations in<strong>to</strong> the picture. From the perspective of the 1960s,<br />
the important ones were the National Association for the Advancement of Colored People that had<br />
worked for the rights of racial minorities since the early century and its Legal Defense Fund, established<br />
in 1930, the American Civil Liberties Union that had litigated for civil rights since 1920, and the National<br />
Lawyers Guild that had also worked for the rights of the less privileged since 1937.<br />
178 See, e.g., the symposium in 12 UCLA Law Review 279–509 (1965).<br />
179 See Jonathan Black, Radical Lawyers: Their Role in the Movement and in the Courts (New York:<br />
Avon Books 1971); Robert Lefcourt (ed.), Law Against the People: Essays <strong>to</strong> Demystify Law, Order, and<br />
73
lawyers was an exception <strong>to</strong> the tradition, since the legal profession was traditionally<br />
skeptical of the efforts <strong>to</strong> extend the basis of legal aid because it was concerned with<br />
protecting its own interests. 180 Lawyers were traditionally an elitist group, close <strong>to</strong> the<br />
powerful classes, so that they had not in general been concerned about the rights of the<br />
less-privileged. The civil rights struggle transformed the self-image of the lawyer who<br />
felt alienated from the traditional profession or wanted <strong>to</strong> work for the rights of the citizen.<br />
The changes in the practical legal profession reflect the wider transformation of<br />
society and consciousness, which were signi<strong>fi</strong>cant in shaping its critical consciousness.<br />
Part of the dynamic leading <strong>to</strong> the formation of the critical thought was therefore the<br />
rising critical attitude of the practical lawyer.<br />
The lawyers who were concerned for inequality with respect <strong>to</strong> legal representation<br />
argued that inequality meant a denial of justice. They claimed that the problem was<br />
not simply a matter of income, but consisted of complex socio-structural problems that<br />
needed fundamental reform. 181 Various changes were needed in order <strong>to</strong> make legal<br />
services available <strong>to</strong> the poor. Among the new alternatives were neighborhood law<br />
<strong>fi</strong>rms, 182 group legal services, 183 communal law <strong>fi</strong>rms 184 and public interest lawyers. 185<br />
Even if legal representation was not a “panacea for poverty”, there were many things<br />
lawyers could do for a more equitable society, 186 and even if lawyers had faith in assisting<br />
the needy, they were aware of the limits of civil litigation. 187 Social problems gave<br />
rise <strong>to</strong> legal problems, and a portion of the profession was not satis<strong>fi</strong>ed with the way the<br />
problems were typically dealt with. From the 1960s onwards, lawyers began <strong>to</strong> take a<br />
larger role in social activism.<br />
New methods were needed in the struggle for the rights of the citizen. Lawyers, for<br />
instance, attacked public agencies in order <strong>to</strong> change the system. 188 At <strong>fi</strong>rst, government<br />
had been part of the struggle against inequality, but as matters evolved, radical lawyers<br />
the Courts (New York: Vintage Books 1971). The radical attitude <strong>to</strong>ward law and the traditional legal<br />
profession is well described in the articles in the books.<br />
180 Jerome E. Carlin, Lawyer’s Ethics: A Survey of the New York City Bar (New York: Russell Sage<br />
Foundation 1966), 180. See also Murray L. Schwartz, Group Legal Services in Perspective, 12 UCLA<br />
Law Review 279, 284 (1965); George E. Bodle, Group Legal Services: The Case for BRT, 12 UCLA<br />
Law Review 306, 306 (1965). The articles concerned the decision in Brotherhood of Railroad Trainmen<br />
v. Virginia ex rel Virginia State Bar 377 U.S. 1 (1963), which granted the labor unions the right <strong>to</strong> provide<br />
legal counseling for their members, a provision which the American Bar Association opposed.<br />
181 Jerome E. Carlin & Jan Howard, Legal Representation and Class Justice, 12 UCLA Law Review 381,<br />
382–429 (1965).<br />
182 Cahn and Cahn 1964, supra n. 176 at 1334–1336.<br />
183 Schwartz 1965, supra n. 180 at 284–286.<br />
184 Robert Lefcourt, The First Law Commune, 310–312, in Lefcourt 1971 (ed.), supra n. 179 at 310–326;<br />
Paul Biderman, The Birth of Communal Law Firms, 281–282, in Black 1971 (ed.), supra n. 179 at 280–<br />
288.<br />
185 The New Public Interest Lawyers, 79 Yale Law Journal 1069, 1069–1070 (1970).<br />
186 Carlin & Howard 1965, supra n. 181 at 437.<br />
187 Geoffrey C. Hazard Jr., Social Justice through Civil Justice, 36 University of Chicago Law Review<br />
699–712 (1969); Geoffrey C. Hazard Jr., Law Reforming in the Anti-Poverty Effort, 37 University of<br />
Chicago Law Review 242–255 (1970).<br />
188 Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stanford Law<br />
Review 207, 227 (1976).<br />
74
ealized that the government was part of the system and thus part of the problem. In<br />
addition, new strategies of litigation, such as consumer protection 189 and environmentalism<br />
190 came in<strong>to</strong> existence as the interests of consumers and the environment began <strong>to</strong><br />
attract public interest. Critical lawyers and scholars went <strong>to</strong> the root of the problem in<br />
order <strong>to</strong> bring change about. They noted that the problems were fundamental and attacked<br />
it in various ways. The critical lawyers of the 1960s and 1970s sought <strong>to</strong> <strong>fi</strong>ght<br />
social inequality in the courts, which indicates that they still had faith in the potential<br />
for reform through litigation.<br />
The changes in the profession also left their marks on scholarship. Charles Reich,<br />
a liberal scholar with an alternative perspective, noted that the rise of the welfare state<br />
had expanded the government and caused undesirable side-effects, since governmental<br />
control over private life had increased in an inequitable manner, burdening the poor<br />
more than the rich. Privacy and governmental largess did not enjoy the protection that<br />
private property rights did. Therefore, in order <strong>to</strong> increase equality, the interests of the<br />
poor should be regarded as the new property. 191 He also argued that the myth of neutrality<br />
of law dis<strong>to</strong>rted the purposes of the public interest because the values and policies<br />
underlying the concept were hidden behind the ostensible neutrality of law. 192 The alternative<br />
concepts of property were aimed at attaining the reality behind the legal doctrine.<br />
The concerns of the scholars were precisely those that concerned the law and society<br />
scholars as well, and the Zeitgeist of the alternative scholar was <strong>to</strong> study law in<br />
action as a response <strong>to</strong> social problems. Scholars elaborated new legal concepts <strong>to</strong> make<br />
law correspond with modern society and paid more attention <strong>to</strong> the previously neglected<br />
social problems.<br />
Legal scholarship on social problems was also increasing signi<strong>fi</strong>cantly. In addition<br />
<strong>to</strong> the Law & <strong>Society</strong> Review, The Harvard Civil Rights-Civil Liberties Law Review was<br />
founded in 1966 <strong>to</strong> promote scholarship on the rights of the citizen, 193 and the Columbia<br />
Survey of Human Rights Law, later the Columbia Human Rights Law Review, was<br />
founded in 1967. Civil rights issues were important and scholarship on them was lively.<br />
As noted, racial inequality was an especially serious concern. For instance, Paul Brest<br />
criticized the national government for its inability <strong>to</strong> protect the rights of African Americans<br />
in Southern societies, 194 and McCarty and Stevenson analyzed the effects of the<br />
1965 Voting Act by examining the actual problems concerning the voting of African<br />
Americans in the southern states, reviewing the changes the new law had made, and<br />
189 Mark L. Rosenberg, Class Actions for Consumer Protection, 7 Harvard Civil Rights-Civil Liberties<br />
Law Review 601–629 (1972):<br />
190 Donald W. Large, Is Anybody Listening? The Problem of Access in Environmental Litigation, 1972<br />
Wisconsin Law Review 62–113.<br />
191 Charles A. Reich, The New Property, 73 Yale Law Journal 733–777 (1964).<br />
192 Charles A. Reich, The Law of the Planned <strong>Society</strong>, 75 Yale Law Journal 1227, 1233–1238 (1966).<br />
193 Mor<strong>to</strong>n J. Horwitz, A Brief His<strong>to</strong>ry of the Harvard Civil Rights-Civil Liberties Law Review, 37 Harvard<br />
Civil Rights-Civil Liberties Law Review 249, 249 (2002).<br />
194 Paul Andrew Brest, The Federal Government’s Power <strong>to</strong> Protect Negroes and Civil Rights Workers<br />
Against Privately Inflicted Harm, 1 Harvard Civil Rights-Civil Liberties Law Review 2–59 (1966).<br />
75
considering the potential for policy change. 195 These studies were concerned with the<br />
legal problems in society, but the interest in the functions of the profession also increased.<br />
An expression of the growing self-awareness of the legal profession was Jerome<br />
Carlin’s sociological study on the ethics of the legal profession, which aimed at<br />
understanding the position of the lawyer in society. 196 Studies on the contemporary concerns<br />
were popular in the 1960s, and the problems were often approached from an alternative<br />
perspective with alternative methods. Alternative legal scholarship was a methodology<br />
of criticism and reform.<br />
The 1960s was still marked by a reliance on social planning, as long as the planning<br />
was done right. 197 Later the critical bloc of the younger generation became more<br />
pessimistic about the possibility of reform. During the latter half of the sixties, several<br />
reform-minded, leftist young lawyers started <strong>to</strong> work for a better society by denouncing<br />
the traditional practice and seeking <strong>to</strong> work for the oppressed and the less privileged.<br />
These lawyers noted the political aspect of law and acted upon it in order <strong>to</strong> change society.<br />
198 They struggled against the myths of the heroic nature and neutrality of law 199<br />
and, whereas the traditional purposes of legal work were <strong>to</strong> solve conflicts and analyze<br />
doctrine, the radicals thought that “[t]he major objective of work in law, however, ought<br />
<strong>to</strong> be <strong>to</strong> clarify its outside limits and its his<strong>to</strong>ry; <strong>to</strong> show that bourgeois law is not only<br />
hypocritical, but based on inequality and therefore, in our eyes, illegal.” 200<br />
Social unrest and the awakening of the “other side” of society had left their mark<br />
on the legal profession. Students had protested with an increasing intensity since the<br />
beginning of the decade, and African Americans had protested throughout the century.<br />
In the late 1960s, the legal profession was <strong>fi</strong>nally ready <strong>to</strong> respond <strong>to</strong> the social upheavals<br />
on a large scale. Lawyers had fought for the rights of the less privileged for a long<br />
time, but the decade brought a remarkable change in the situation. Because of the large<br />
profession and the larger number of radically minded lawyers, there were better opportunities<br />
for the legal profession <strong>to</strong> develop a radical branch <strong>to</strong> serve the radical aims.<br />
Truly radical lawyers were students of the sixties starting their professional careers at<br />
the end of the decade. Youthful enthusiasm drove them <strong>to</strong> take a more critical stand on<br />
the law than their older colleagues.<br />
195 L. Thorne McCarty & Russell B. Stevenson, The Voting Rights Act of 1965: An Evaluation, 3 Harvard<br />
Civil Rights-Civil Liberties Law Review 357–421 (1968).<br />
196 See Carlin 1966, supra n. 180.<br />
197 See Reich 1966, supra n. 192 at 1257–1270.<br />
198 Jonathan Black, Introduction: A Slight Case of Contempt, 14–17, in Black 1971 (ed.), supra n. 179 at<br />
11–23; Stephen Wexler, Practicing Law for Poor People, 79 Yale Law Journal 1049, 1049–1054 (1970).<br />
199 Kenneth Cloke, Law is Illegal, 27, in Black 1971 (ed.), supra n. 179 at 27–43.<br />
200 Id. at 42. Cloke is a good account of the Marxist conception of law in the United States. See also Michael<br />
E. Tigar, Socialist Law and Legal Institutions, in Lefcourt (ed.) 1971, supra n. 179 at 327–347.<br />
76
2.7 Concluding remarks<br />
The decisive point for American jurisprudence of the 1960s was the pursuit of rationality<br />
and neutrality in legal reasoning. Although the most radical notions of legal realism<br />
had faded, it had left a permanent legacy with which the postwar legal scholars had <strong>to</strong><br />
cope, and which had <strong>to</strong> be adapted <strong>to</strong> the tradition. Legal interpretation and the creative<br />
input of judges had thus <strong>to</strong> be set in the context of a rational process in order <strong>to</strong> enable<br />
the development of law in accordance with social change. At the same time, however,<br />
arbitrariness had <strong>to</strong> be avoided, neutrality maintained, and the protection of individual<br />
and fundamental democratic rights guaranteed. There were also scholars who criticized<br />
the common consensus on rationality. The mainstream was not without an opposition<br />
and the profession at large was not unanimous about the nature and purposes of jurisprudence.<br />
The 1960s had also changed the <strong>fi</strong>eld of legal scholarship <strong>to</strong> a signi<strong>fi</strong>cant extent<br />
and various forms of alternative legal scholarship and practice had an established position<br />
by the mid-decade. Political jurisprudence worked on the impact of the personal<br />
and political biases of judges on judicial decision-making since the late 1940s and its<br />
literature increased considerably during the succeeding years. However, it was a movement<br />
of political and behavioral sciences. Interdisciplinary legal studies had also begun<br />
<strong>to</strong> prosper. Law and society had grown since the 1950s, examining the relationship between<br />
the law and various social phenomena. In many ways it was critical scholarship,<br />
but it did not go beyond the observable reality or endorse any extreme notions. Studies<br />
on culture and law as well as on legal anthropology were encouraged by the American<br />
projects in developing countries, which had also revealed the imperialistic nature of law<br />
and the fact that law had relatively little direct impact on society. In addition, practicing<br />
lawyers were paying more attention <strong>to</strong> the impact of their profession. Lawyers were<br />
<strong>fi</strong>nding ways <strong>to</strong> help people in need of assistance and change society through their practice,<br />
and lawyers and legal scholars began <strong>to</strong> pay more attention <strong>to</strong> the fundamental<br />
rights of the citizen.<br />
The legal tradition was challenged from various directions as the social turbulence<br />
was reaching its peak and law schools were also becoming forums for student rebellion.<br />
Despite the alternative scholarship, mainstream jurisprudence and legal education in<br />
general emphasized the rationality and neutrality of the legal process and failed <strong>to</strong> pay<br />
attention <strong>to</strong> the relationship between law, society, and politics. Moreover, in spite of the<br />
fact that the tradition was criticized, the critical scholarship of the 1960s only rarely<br />
challenged the ideology informing the tradition. With the exception of the radical lawyers<br />
who thought that bourgeois law was illegal, the alternative scholarship of the 1960s<br />
simply tried <strong>to</strong> expand the methodological basis of legal scholarship and <strong>to</strong> acquire a<br />
better understanding of the social functions of the law. The interplay between the tradition,<br />
jurisprudential criticism, social radicalism, and changes in scholarship was at the<br />
77
center of the radical critical legal scholarship of the 1970s, and it will be the focus of the<br />
following section.<br />
3 Critique radicalized: The evolution of CLS<br />
3.1 The origins of CLS: From sociological jurisprudence <strong>to</strong> critical legal scholarship<br />
3.1.1 Introduction<br />
In the previous sections we have seen that there were realist elements in legal scholarship<br />
in the 1960s and 1970s, but that these were not in a major position. The law school<br />
tradition remained more true <strong>to</strong> the process theory than <strong>to</strong> any policy analysis. However,<br />
society was in continuous turmoil and civil rights movements were on a roll, cultural<br />
radicalism and leftism marked the critical intellectual thought, and social sciences made<br />
their way in<strong>to</strong> legal scholarship. As the 1960s progressed, realist elements and alternative<br />
approaches began <strong>to</strong> get more attention from legal scholars. The Critical Legal<br />
Studies Movement (CLS) was thus a movement with several connections. Its basis was<br />
in the radicalism of the 1960s, it had law and development and law and society as<br />
sources of inspiration, and the taught tradition was its enemy.<br />
In this section, I shall explore the development of CLS in the 1970s. As Duxbury<br />
notes, CLS grew out of the conflict between the alternative legal scholarship of the<br />
1960s and the more radical-left orientation that eventually became CLS. 201 It is true that<br />
CLS was a reaction <strong>to</strong> the failures of the alternative jurisprudence of the 1960s <strong>to</strong> meet<br />
the needs of legal reality, as well as the failures of reasoned elaboration <strong>to</strong> come <strong>to</strong><br />
terms with the problems of legal reasoning. However, it was also much more, and this<br />
can be seen precisely in the conflict if we take in<strong>to</strong> account the various aspects relating<br />
<strong>to</strong> culture, epistemology, world-view, and consciousness. The general account on CLS<br />
does not include the larger, cultural element in the development of the movement.<br />
Therefore, my purpose is <strong>to</strong> demonstrate how CLS was a complex phenomenon of<br />
combining various aspects within the academic <strong>fi</strong>eld.<br />
In this section, I will demonstrate how the various transformations culminated in<br />
the CLS movement in the late 1970s. I will begin at the law school, because it was the<br />
place where the radical scholars acquired their identities as scholars and where the classical<br />
tradition was most pronounced. A central thesis is that some of the law students of<br />
the 1960s and 1970s felt alienated from the tradition and began <strong>to</strong> seek an alternative<br />
paradigm. I shall then analyze the development of the criticism of legal thought and<br />
critical scholarship in legal his<strong>to</strong>ry, constitutional law, and criminal law. The <strong>fi</strong>rst conference<br />
on critical legal studies, held in 1977, can be seen as the birth of the CLS<br />
201 Duxbury 1995, supra n. 42 at 435–447.<br />
78
movement. That will also function as a point of departure in the study, and our analysis<br />
will cease at the beginning of the 1980s. After taking a brief look at race and feminist<br />
scholarship, the analysis turns <strong>to</strong> the his<strong>to</strong>rical perspective at the end of the section.<br />
3.1.2 Radicalism and the law school: The evolution of critical thought<br />
The best manifestation of the spirit of the 1960s was campus radicalism. Radical students<br />
attacked the structures and administration of the university. Radicalism also invaded<br />
the law school in the late 1960s. Although relatively late and small as compared<br />
<strong>to</strong> the other disciplines, 202 the discomfort with legal education was nonetheless widespread,<br />
in particular among <strong>fi</strong>rst-year students. 203 Like their fellow students, law students<br />
protested against the grading system and their lack of power in the university administration.<br />
204 The law student population had increased greatly during the postwar<br />
decades. By the 1960s, a signi<strong>fi</strong>cant portion of the law students were liberal leftists who<br />
supported civil rights and social justice, whereas the majority of the legal profession<br />
remained rather conservative. 205 Law students also adopted the critical spirit of the time<br />
and wanted their education accordingly. Since law has been traditionally a relatively<br />
conservative and elitist <strong>fi</strong>eld, law students were not at the forefront of the student radicalism,<br />
but as the number of the liberal students increased and the disappointment with<br />
education grew, radicalism entered the law school as well.<br />
The critical spirit of the 1960s changed the law school atmosphere signi<strong>fi</strong>cantly.<br />
Unsurprisingly, CLS has often been linked <strong>to</strong> the experiences of the leftist students in<br />
the law schools of the time. Common observations are that CLS “was born during the<br />
late 1960s among a group of student activists and younger faculty at Yale Law School<br />
who believe that using legal reasoning <strong>to</strong> justify the rules of society can make outcomes<br />
that are oppressive appear <strong>to</strong> be inevitable, logical and inherently fair,” 206 and that its<br />
origins are in the “dissonance between the student political experience of the sixties and<br />
the law school curriculum of the sixties and seventies.” 207 One of the most important<br />
<strong>fi</strong>gures of critical scholarship, Duncan Kennedy, wrote in 1991 that “I started law<br />
school in 1967 with a sense that the ‘system’ had a lot of injustice in it, meaning that the<br />
distribution of wealth and income and power and access <strong>to</strong> knowledge seemed unfairly<br />
skewed along class and race lines. I thought law was important in the skewing process<br />
202 Paul N. Savoy, Toward a New Politics of Legal Education, 79 Yale Law Journal 444, 444 (1970).<br />
203 Lawrence Silver, Anxiety and the First Semester of Law School, 1968 Wisconsin Law Review 1201–<br />
1208.<br />
204 Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: The University<br />
of North Carolina Press 2005), 28–31, 84–105, 122–135, 145–157.<br />
205 Robert Stevens, Law School: Legal Education in America from the 1850s <strong>to</strong> the 1980s (Chapel Hill:<br />
The University of North Carolina Press 1983), 234–235.<br />
206 Are Lawyers Really Necessary? Barrister Interview with Duncan Kennedy, 14 Barrister 11, 11<br />
(4/1987).<br />
207 Guyora Binder, On Critical Legal Studies as Guerrilla Warfare, 76 George<strong>to</strong>wn Law Journal 1, 23<br />
(1987).<br />
79
and in efforts <strong>to</strong> make distribution fairer, but I had no clear idea how or why.” 208 As the<br />
students felt disbelief in the society, they also felt betrayed by the law school and powerless<br />
within the university. The law school thus provides the arena for the synthesis of<br />
the critical thought that eventually led <strong>to</strong> the formation of the critical legal studies<br />
movement. It was the place where the traditional and the new models of legal thought<br />
collided.<br />
It was not simply student radicalism that stirred the law school atmosphere.<br />
Alongside the rise of student unrest, the faculty also debated education. Legal education<br />
had been widely debated since the time of legal realism, and the 1960s intensi<strong>fi</strong>ed the<br />
debates. Although the curriculum was revised, no fundamental changes occurred, and<br />
the education at least during the <strong>fi</strong>rst year was still based on the case method. 209 Problems<br />
of legal education were widely acknowledged. Even professors who were pleased<br />
with the education opined that there ought <strong>to</strong> be some social material in the curriculum,<br />
210 but the more critical scholars endorsed more fundamental changes. A common<br />
concern among the critics of legal education was that the students were not prepared for<br />
real-life circumstances. What was needed, then, was more attention <strong>to</strong> the substance, 211<br />
a functional approach <strong>to</strong> law, 212 or more material on the social consequences of law in<br />
the text-books. 213 Students were also often irritated by the emphasis on rationality and<br />
the apolitical nature of the education. 214 The criticism of the traditional education clearly<br />
reflected the disagreement on the methodologies of legal research. The focus on law<br />
in action was becoming more common in the 1960s, and the alternative approach was<br />
clearly articulated in the critical arguments about legal education. The criticism of the<br />
education thus emanated more from the alternative scholarship than from the radical<br />
students.<br />
Besides the substance of education, the scholars criticizing it also endorsed the<br />
methods of alternative legal scholarship. A common argument was that there ought <strong>to</strong><br />
208 Duncan Kennedy, The Stakes of Law, or Hale and Foucault! 15 Legal Studies Forum 327, 327 (1991).<br />
209 Stevens 1983, supra n. 205 at 210–212. The debates on legal education before 1964 are summarized in<br />
Note: Modern Trends in Legal Education, 64 Columbia Law Review 710–734 (1964), where it is stated<br />
that the case method was rare after the <strong>fi</strong>rst year, but the majority of faculty thought that it was useful,<br />
even necessary, in the <strong>fi</strong>rst year. (Id. at 716, n. 52.) Nevertheless, criticism of legal education continued<br />
from the realist period. On the realist critique of legal education, see Laura Kalman, Legal Realism at<br />
Yale, 1927–1960 (Union, New Jersey: The Law Book Exchange 2001), 68–119; Stevens 1983, supra n.<br />
205 at 155–171.<br />
210 Edward H. Levi, Law Schools and the Universities, 17 Journal of Legal Education 243, 248–249<br />
(1967).<br />
211 Charles A. Reich, Toward the Humanistic Study of Law, 74 Yale Law Journal 1402, 1402–1406<br />
(1965).<br />
212 Robert B. Yegge, The Future Legal Practitioner in the United States: What Training He Must Receive,<br />
44 Denver Law Journal 12, 21–22 (1967, special issue).<br />
213 Lester Mazor, Cases and Materials on Constitutional Rights and Liberties, 49 Minnesota Law review<br />
1202, 1210 (1965).<br />
214 Robert W. Gordon, Critical Legal Studies as Teaching Method, Against the Background of the Intellectual<br />
Politics of Modern Legal Education in the United States, 1 Legal Education Review 59, 64–66<br />
(1989).<br />
80
e more interdisciplinary education in legal training. 215 Because of the stress on the social<br />
problems, law was not <strong>to</strong> be unders<strong>to</strong>od as a closed and au<strong>to</strong>nomous discipline. On<br />
the contrary, there ought <strong>to</strong> have been more philosophy, 216 his<strong>to</strong>ry, 217 social science, 218<br />
and empirical data 219 in legal education, because these would help the would-be lawyers<br />
<strong>to</strong> understand legal classi<strong>fi</strong>cations and social functions and the effects of the law. It was<br />
often scholars with connections <strong>to</strong> law and society scholarship who most encouraged<br />
the inclusion of social science in legal education. The critical opinion of the 1960s was<br />
that law was an integral part of society and therefore could not be unders<strong>to</strong>od independently.<br />
The functional approach <strong>to</strong>ward legal education also concerned policy issues and<br />
social planning. The radical activist lawyer Ralph Nader argued that legal education<br />
traditionally promoted the needs of the big corporations and therefore often served <strong>to</strong><br />
maintain the status quo. 220 Many scholars argued that legal education did not pay due<br />
attention <strong>to</strong> contemporary problems 221 although the purpose of education should be <strong>to</strong><br />
inform the students of the potential for using law as a <strong>to</strong>ol of social reform. 222 The postrealist<br />
scholar Arthur Miller even argued that law schools ought <strong>to</strong> be turned in<strong>to</strong> centers<br />
of policy analysis where the potential of law <strong>to</strong> promote human values and solve<br />
contemporary problems could be analyzed. 223 And since urban problems were pressing,<br />
David Cavers argued that law schools should pay attention <strong>to</strong> the contemporary urban<br />
crisis in both research and education. 224 Specialized education was also proposed so that<br />
students could obtain deeper knowledge on certain <strong>to</strong>pics. 225 The functional approach<br />
and the emphasis on values and policies were parts of the alternative perspectives on<br />
law. Critical scholars and lawyers worked <strong>to</strong> resolve social problems and promote liberal<br />
values, and these insights were accentuated in the criticism of education.<br />
215 Lawrence M. Friedman, Contract Law and Contract Research (Part I), 20 Journal of Legal Education<br />
452, 459–460 (1968). Friedman noted that the education in criminal law, for instance, had been revised<br />
more but the education in contract law was still very conservative. (Id. at 452.)<br />
216 James E. Wallace, Philosophy and the Future Law School Curriculum, 44 Denver Law Journal 24, 26–<br />
27, 34 (1967, special issue).<br />
217 Lawrence M. Friedman, His<strong>to</strong>ry and the Future Law School Curriculum, 44 Denver Law Journal 43,<br />
45–46 (1967, special issue).<br />
218 Wilbert E. Moore, Social Science and the Future Law School Curriculum, 44 Denver Law Journal 49,<br />
50–54 (1967, special issue).<br />
219 Stewart Macaulay, Contract Law and Contract Research (Part II), 20 Journal of Legal Education 460,<br />
467–468 (1968).<br />
220 Ralph Nader, Law Schools and Law Firms, 54 Minnesota Law Review 493, 493–496 (1970).<br />
221 Quintin Johns<strong>to</strong>ne, Student Discontent and Educational Reform in the Law Schools, 23 Journal of<br />
Legal Education 255, 255–258 (1970); Steven H. Leleiko, Legal Education – Some Crucial Frontiers, 23<br />
Journal of Legal Education 502, 503–506 (1971).<br />
222 Reich 1965, supra n. 211 at 1405; Yegge 1967, supra n. 212 at 13, 16–17; Moore 1967, supra n. 218 at<br />
53; Stewart Macaulay, Law Schools and the World outside Their Doors: Notes on the Margins of “Professional<br />
Training in the Public Interest”, 54 Virginia Law Review 617, 635 (1968).<br />
223 Miller 1970, supra n. 122.<br />
224 David F. Cavers, Legal Education in Forward-Looking Perspective, 143–148, in Geoffrey C. Hazard<br />
Jr. (ed.), Law in a Changing America (Englewood Cliffs, New Jersey: Prentice-Hall 1968), 139–156.<br />
225 Abraham S. Goldstein, The Unful<strong>fi</strong>lled Promise of Legal Education, 164–165, in Hazard (ed.) 1968,<br />
supra n. 224 at 157–166.<br />
81
The concern over legal education involved broad aspects of alternative legal<br />
scholarship. Miller, for instance, encouraged a very realistic education that would include<br />
the impact of extra-legal fac<strong>to</strong>rs in judicial decision-making and the way judges in<br />
fact decided cases, as well as the aspects of law as a <strong>to</strong>ol of social control. 226 The criticism<br />
marked a more dramatic shift in the paradigm of legal education. The aim of the<br />
criticism was <strong>to</strong> combine recent trends in alternative scholarship in legal education and<br />
bring the level of realism in the behavioral sciences in<strong>to</strong> the law. Alternative legal<br />
scholarship of the 1960s challenged the traditional scholarship, and the struggle struck<br />
at the essence of legal education.<br />
A major vice of legal education, the critics claimed, was the Socratic method.<br />
Many of the students found the method very stressful, 227 and Paul Savoy noted that a<br />
real interaction between teachers and students would “never happen until we remove<br />
our academic masks and put an end <strong>to</strong> those degrading ceremonies we politely call the<br />
‘Socratic method.’” 228 Notwithstanding the realist period, American legal education had<br />
done well until the mid-1960s, and no major reforms had occurred. 229 Part of the critical<br />
thought of the 1960s, however, was <strong>to</strong> demonstrate that the case method was boring and<br />
reifying, and thus had <strong>to</strong> be replaced by more realistic approaches. The alternative legal<br />
scholars endorsed alternative methods <strong>to</strong> traditional scholarship and heard the cries of<br />
the student radicals, and they attacked the legal tradition in the effort <strong>to</strong> change it.<br />
The critical debates show that legal education and legal paradigm are intertwined.<br />
The problem was deeper than simple controversies over educational policies. Friedman<br />
argued that legal education had long been a closed discipline and recent times had witnessed<br />
a counter-revolution following the realist period, which had moved legal theory<br />
and education in a more conservative direction. 230 In an unsigned article titled “Legal<br />
Theory and Legal Education” it was argued, after noting that studies on law in action<br />
had again become common, that “[m]any of the current proposals <strong>to</strong> establish empirical<br />
research about particular socio-legal problems in the law schools carry with them an<br />
implicit paradigm which attempts <strong>to</strong> serve these general professional functions.” 231 As<br />
the debates on neutral principles showed, there was an urge <strong>to</strong> maintain the traditional<br />
prestige and rationality of the profession even though the alternative bloc was present.<br />
A problem concerning change was, however, that the “genius” of American democracy<br />
was the “readiness with which its legal institutions and practices have accommodated<br />
226 Arthur Selwyn Miller, On the Interdependence of Law and Behavioral Sciences, 43 Texas Law Review<br />
1094–1101 (1965).<br />
227 Andrew S. Watson, The Quest for Professional Competence: Psychological Aspects of Legal Education,<br />
37 University of Cincinnati Law Review 91, 124 (1968).<br />
228 Savoy 1970, supra n. 202 at 456–457.<br />
229 Robert Stevens, Two Cheers for 1870: The American Law School, V Perspectives in American His<strong>to</strong>ry<br />
403, 405 (1971).<br />
230 Friedman 1968, supra n. 215 at 457–459.<br />
231 Legal Theory and Legal Education, 79 Yale Law Journal 1153, 1156 (1970). According <strong>to</strong> the CLS<br />
bibliography, the article was written by Rand Rosenblatt. (Duncan Kennedy & Karl E. Klare, A Bibliography<br />
of Critical Legal Studies, 94 Yale Law Journal 461, 484 (1984).)<br />
82
shifting objectives without profound or radical change in the fundamentals.” 232 <strong>Society</strong><br />
and legal scholarship were in turmoil but fundamental changes were dif<strong>fi</strong>cult <strong>to</strong> achieve.<br />
Because of the turmoil and the criticism, scholars were talking about a crisis in legal<br />
education in the early 1970s. 233 Those who were very critical of the education felt<br />
that there was a need for fundamental reform, 234 but the proposals varied and some noted<br />
the dif<strong>fi</strong>culty of combining them. 235 The rising resistance within both the faculty and<br />
among the students had in any event transformed the law school, even if major changes<br />
had not occurred. Many law students grew up and received their education in the critical<br />
atmosphere of the 1960s and, as has been noted, the new left found an afterlife in the<br />
American academy in the 1970s. 236 The crisis of education was thus a culmination of<br />
scholarly and student discomfort with the traditional paradigm.<br />
While emphasizing the connection between the disappointing experiences with legal<br />
education of the 1960s and the origins of CLS, Robert Gordon writes that “[m]ost<br />
activist students of the 1960s who were involved in radical or left-liberal politics found<br />
the studiedly antipolitical teaching of that time simply irrelevant <strong>to</strong> their concerns. They<br />
scrounged such slim practical pickings from law school as they could, got the degree,<br />
and moved on. But the 1960s law students who went on <strong>to</strong> form the core of CLS mostly<br />
became teachers themselves and so were motivated <strong>to</strong> engage with the content and style<br />
of orthodox doctrinal teaching and scholarship.” 237 For some students, radicalism was a<br />
passing phase, a part of youth, which passed when the period of studying was over. For<br />
others, however, radicalism became a part of identity, and they continued their critical<br />
enterprise in their professional lives. Critical legal scholarship was partly an expression<br />
of the student dissatisfaction with the law school experience and a willingness <strong>to</strong> improve,<br />
or simply criticize, the system they felt was seriously flawed.<br />
The crisis in legal education and the critical social ideology built a fertile ground<br />
for critical legal scholarship. Duncan Kennedy, who later became one of the most eminent<br />
critical legal scholars, noted the inconvenient atmosphere in his criticism of the law<br />
school. According <strong>to</strong> him, professors were often narcissistically self-assured of the superiority<br />
of the legal method over other disciplines. The worst part was, however, the<br />
hostility of the law school, because many students “feel the socratic method… is an<br />
assault” and, furthermore, they “see professors as people who want <strong>to</strong> hurt them; profes-<br />
232 William T. Gossett, Balances and Controls in Private Policy and Decision-Making, 26, in Hazard (ed.)<br />
1968, supra n. 224 at 26–42.<br />
233 Arthur Kinoy, The Crisis in American Legal Education, 271, in Black (ed.) 1971, supra n. 179 at 271–<br />
280; Robert Borosage, Can the Law School Succeed? A Proposal, 1 Yale Review of Law & Social Action<br />
92, 92 (1970).<br />
234 Savoy 1970, supra n. 202 at 502–504. See also Johns<strong>to</strong>ne 1970, supra n. 221; Miller 1970, supra n.<br />
223; Leleiko 1971, supra n. 221; Edward R. Cohen, Toward Radical Reform of the Law School Curriculum,<br />
24 Journal of Legal Education 210–220 (1972).<br />
235 Lawrence M. Friedman, Some Thoughts on the Relationship between Law and Political Science, 1971<br />
Washing<strong>to</strong>n University Law Quarterly 375, 380.<br />
236 Diggins 1992, supra n. 20 at 290.<br />
237 Robert W. Gordon, Critical Legal Studies as a Teaching Method, 35 Loyola Law Review 383, 393<br />
(1989).<br />
83
sors’ actions often hurt them, deeply.” 238 People felt alienated in both the society and<br />
the university. Traditional structures of power and authority were felt <strong>to</strong> be oppressive,<br />
suffocating, and humiliating, something that a better world would not include. And as<br />
was typical of the critical mind, the fault was seen in the structures of the system. The<br />
problem was not about certain old, egoistic professors who would not <strong>to</strong>lerate the young<br />
and acted as if they could do as they pleased. Nor was the problem about the young<br />
people themselves being unable <strong>to</strong> adapt <strong>to</strong> society like many people had done before<br />
them and many people still did. The problem was in the structures, and that is what critical<br />
scholars realized, and therefore Kennedy attacked the institution in his criticism.<br />
3.1.3 Crisis meets jurisprudence: Fundamental criticism of legal thought<br />
By the end of the 1960s, the crisis in the social order had become evident. The crisis in<br />
legal education of the early 1970s reflected the wider crisis of the legal profession, 239<br />
which also concerned the law and the legal system. In general, for the antiestablishment<br />
people the crisis concerned also the ecological and economic system of<br />
the world. 240 Law, <strong>to</strong>o, was a <strong>fi</strong>eld which faced the problem of adapting the tradition <strong>to</strong><br />
the changed circumstances. The critical notions of the realists were emphasized once<br />
again, and by the late 1960s the critical legal scholars noted that the legal profession had<br />
learned hardly anything from the lessons of legal realism of the 1920s and 1930s which<br />
“was a short-lived enthusiasm that in fact has left a legacy of expectation rather than<br />
accomplishment.” 241 Scholars who in the 1960s endorsed the realist agenda, such as<br />
Arthur Miller, argued that realists had done much <strong>to</strong> “pierce the fog of ritual and myth”<br />
that surrounded the legal profession, yet the Blacks<strong>to</strong>nian theory still “ruled from the<br />
grave”. Therefore, the tradition had <strong>to</strong> be changed <strong>to</strong> deal with the inevitable connection<br />
between law and politics. 242 Indeed, scholars of political jurisprudence stressed that it<br />
had become virtually impossible <strong>to</strong> maintain the distinction between law and politics, 243<br />
and professors of law with an alternative perspective argued that because values were<br />
connected <strong>to</strong> facts, legal research needed empirical science. 244 In the eyes of the alternative<br />
scholar, traditional legal scholarship was in crisis, and the baggage that thwarted the<br />
realization of the connection between law and politics had <strong>to</strong> be stripped out and replaced<br />
by new methods.<br />
238 Duncan Kennedy, How the Law Schools Fails: A Polemic, Yale Review of Law & Social Action 71,<br />
72–73 (1970).<br />
239 Kinoy 1971, supra n. 233 at 272.<br />
240 See, e.g., Donella H. Meadows, Dennis L. Meadows, Jørgen Randers, William W. Behrens III, The<br />
Limits <strong>to</strong> Growth (London: A Po<strong>to</strong>mac Associates Book 1972).<br />
241 Goldstein 1968, supra n. 225 at 158.<br />
242 Arthur Selwyn Miller, Science vs. Law: Some Legal Problems Raised by “Big Science”, 17 Buffalo<br />
Law Review 591, 595–596 (1968), quotations at 596, footnotes omitted.<br />
243 Joel B. Grossman and Austin Sarat, Political Culture and Judicial Research, 1971 Washing<strong>to</strong>n University<br />
Law Quarterly 177, 177.<br />
244 Harry Kalven Jr., The Quest for the Middle Range: Empirical Inquiry and Legal Policy, 71–72, in<br />
Hazard (ed.) 1968, supra n. 223 at 56–74.<br />
84
Although the crisis was obvious, legal scholars responded <strong>to</strong> it in various ways. In<br />
the late 1960s and early 1970s, legal professionals were increasingly discussing the current<br />
situation of law and legal scholarship. 245 In general, faith in the law among the legal<br />
profession and the public at large was waning. People within and outside the legal profession<br />
considered law as conservative and protecting the social and economic status<br />
quo, 246 and demysti<strong>fi</strong>cation of the law, meaning the efforts <strong>to</strong> understand it as it is without<br />
its ideological mystique, became more popular. 247 The problems of law were widely<br />
recognized, but the solutions were far from clear. The critical thought that was emerging<br />
both theoretically and in practice was about <strong>to</strong> challenge the majority who remained true<br />
<strong>to</strong> the tradition. Critical scholars, however, were about <strong>to</strong> search for alternative ways <strong>to</strong><br />
think about society and law.<br />
The Yale law professor Charles Reich grasped the spirit of the crisis of law and<br />
modern society very well in his The Greening of America, 248 <strong>fi</strong>rst published in 1970.<br />
Here he pictured the gloomy image of the corporate state that had turned people in<strong>to</strong><br />
mindless machines and spread false consciousness that upheld the consumption capitalism<br />
on which society was based. People had become mere consumers, indoctrinated<br />
in<strong>to</strong> the system through education <strong>to</strong> serve the machine. Production and consumption<br />
had destroyed the authenticity of the self and nature, and had thus led <strong>to</strong> the decline of<br />
man and society. Reich’s book was indeed an image of the critical mind of the late sixties;<br />
a jeremiad of the mind of a rock-and-roll dissenter in a modern society. It was a<br />
philosophical analysis of the system, law, and the consciousness of the people. By using<br />
the theories of Marx, Marcuse, and Galbraith, and by referring <strong>to</strong> contemporary literature,<br />
such as Catcher in the Rye, Reich developed an image of the society where life had<br />
lost its meaning and everything served production. He was, however, neither a nihilist<br />
245 There was lots of polemical literature published during the years around the turn of the decade which<br />
reflect, in one way or another, the crisis of the time. See, e.g., Hazard (ed.) 1968, supra n. 224, which was<br />
a product of the American Assembly on Law and Changing <strong>Society</strong>, and dealt with the problems law and<br />
legal scholarship faced in contemporary society in a broad perspective but in a constructive manner.<br />
Some of its essays are more critical than others. Black (ed.) 1971, supra n. 179 and Lefcourt (ed.) 1971,<br />
supra n. 179, were critical, even radical, and quite similar books. They both were products of the National<br />
Lawyers Guild and dealt with the contemporary problems of law and society concerning the poor, racial<br />
minorities, and women. See also Robert Paul Wolff (ed.), The Rule of Law (New York: Simon and<br />
Schuster 1971). Its essays deal with the problem of legitimacy of the legal system, and its authors are<br />
mostly non-lawyers. Some of its essays are quite critical whereas others are more constructive. See also<br />
Eugene V. Ros<strong>to</strong>w (ed.), Is Law Dead? (New York: Simon and Schuster 1971). It was a product of the<br />
100 th anniversary symposium of the Association of the Bar of the City of New York, and is somewhat<br />
more conventional book of essays which deal with the moral responsibility <strong>to</strong> obey the law and the capacity<br />
of the American legal system <strong>to</strong> respond <strong>to</strong> the contemporary problems. These books show that there<br />
were many problems concerning law and society and legal scholars offered various responses <strong>to</strong> them.<br />
246 Howard Zinn, The Conspiracy of Law, 20–35, in Wolff (ed.) 1971, supra n. 245 at 15–36; Edgar Z.<br />
Friedenberg, The Side Effects of the Legal Process, 37–41, in Wolff (ed.) 1971 id. at 37–53; Robert<br />
Lefcourt, Law Against the People, 26–35, in Lefcourt (ed.) 1971, supra n. 179 at 21–37.<br />
247 Lefcourt (ed.) 1971, supra n. 179 at viii.<br />
248 Charles A. Reich, The Greening of America (Harmondsworth: Penguin Books 1971).<br />
85
nor a socialist, 249 but a liberal progressive who had faith in the potentiality of change in<br />
American society.<br />
According <strong>to</strong> Reich, law in modern society, although capable of transforming, was<br />
a medium of power and a guardian of the status quo. 250 More radical scholars than<br />
Reich also made this argument, for the role of the radical scholar was, as Arthur Kinoy<br />
put it, <strong>to</strong> study the particular contradictions within law in order <strong>to</strong> understand the way<br />
law operated in society and reproduced social inequality, and hence <strong>to</strong> defend the true<br />
purposes of law. 251 Critical scholars considered law as a conservative force and a hindrance<br />
<strong>to</strong> social reform, 252 and biased against the poor, 253 racial minorities, 254 and women.<br />
255 They felt that law, like American democracy, had betrayed its original purpose of<br />
protecting freedom and equality and turned instead <strong>to</strong> preserve the system and the powerful.<br />
The purpose of radical action was <strong>to</strong> expose the fallacies of law and, if possible,<br />
contribute <strong>to</strong> change. The unrest confused the legal profession and produced an allencompassing<br />
tension within it.<br />
The political and social turbulence and the conflict between the tradition and the<br />
alternative were evident in the law faculties. As noted, it was often the younger faculty<br />
who endorsed alternative education and scholarship. The tension became clear in the<br />
early 1970s when Yale law school failed <strong>to</strong> offer tenure <strong>to</strong> six young faculty members<br />
on an occasion that became <strong>to</strong> be known as the “purge.” 256 Many of the participants in<br />
the incident in fact shared leftist sympathies and endorsed alternative approaches. David<br />
Trubek and Richard Abel were obviously critical scholars and became later founding<br />
members of CLS, and John Grif<strong>fi</strong>ths can also be considered as a critical scholar. 257<br />
Now, it has been argued that the denial of tenure was due <strong>to</strong> the leftist and critical nature<br />
of these scholars. 258 Although the occasion may not be so simple, 259 it nevertheless suggests<br />
the tensions within the law school. Young scholars eager <strong>to</strong> change the curriculum<br />
and scholarship did not always receive a hospitable reception, and the disappointments<br />
that students felt while studying continued in the early phase of their academic careers.<br />
249 Reich criticized the New Left for its unawareness of the repressive nature of socialism and for not<br />
providing an alternative vision of change. (Reich 1971, supra n. 248 at 263–264.)<br />
250 Id. at 102–112. Reich did not propose abolishing law or government. Rather, they were <strong>to</strong> be changed<br />
<strong>to</strong> serve humane ends. (Id. at 296–297.)<br />
251 Arthur Kinoy, The Role of the Radical Lawyer and Teacher of Law: Some Reflections, 29 Guild Practitioner<br />
3, 4 (1970).<br />
252 Richard Wasserstrom, Lawyers and Revolution, 79, in Black (ed.) 1971, supra n. 179 at 74–84.<br />
253 Wexler 1970, supra n. 198 at 1052, 1060; Kinoy 1970, supra n. 251 at 5. See also Harry P. Stumpf,<br />
Law and Poverty: A Political Perspective, 1968 Wisconsin Law Review 694–733.<br />
254 Haywood Burns, Racism in American Courts, 38–39, 50–54, in Lefcourt (ed.) 1971, supra n. 179 at<br />
38–54.<br />
255 Ann M. Gar<strong>fi</strong>nkle, Carol Lefcourt and Diane B. Schulder, Women’s Servitude under Law, 105, in<br />
Lefcourt (ed.) 1972, supra n. 179 at 105–122.<br />
256 Kalman 2005, supra n. 204 at 239.<br />
257 Others were Lee Albert, Robert Hudec, and Larry Simon.<br />
258 Mark Tushnet, Critical Legal Studies: A Political His<strong>to</strong>ry, 100 Yale Law Journal 1515, 1530–1534<br />
(1991).<br />
259 The incident is thoroughly reviewed in Kalman 2005, supra n. 204 at 234–267. It seems that in the<br />
case of Abel, Grif<strong>fi</strong>ths, and Trubek, the reasons might relate <strong>to</strong> questions of personal relationships and<br />
scholarship.<br />
86
The tension was also obvious in legal theory. In the 1960s and 1970s, various<br />
forms of interdisciplinary legal scholarship came <strong>to</strong> prominence, as did theories of<br />
rights revitalizing the liberal paradigm. 260 Indeed, rights entered the core of legal theory<br />
in the 1970s. The journal Human Rights was founded in 1970. It was considered appropriate<br />
because human rights were threatened by “extremists who show contempt for<br />
society’s laws”, “the politics of polarization”, and politicians who push “repressive laws<br />
which erode constitutional and individual liberties.” 261 Rights were a concern of the<br />
whole legal profession, and all kinds of extremist politics were considered as threats <strong>to</strong><br />
them. Legal scholars thus became interested in human and civil rights in the late 1960s<br />
and, as the crisis of law and society intensi<strong>fi</strong>ed in the early 1970s, these aspects became<br />
even more important.<br />
The perceptions of and responses <strong>to</strong> the crisis varied, however. A major response<br />
was the theories emphasizing rights. 262 One of the reformers in the rights direction was<br />
Ronald Dworkin. According <strong>to</strong> him, both the radical and the conservative perspective<br />
on the crisis were based on a positivist conception of law. He thought, therefore, that an<br />
alternate theory of law was needed that could connect law <strong>to</strong> the social and ethical institutions<br />
and reduce the ideological conflict. Everyone would thus be committed <strong>to</strong> the<br />
same social convention and principled argument. 263 The alternate theory would recognize<br />
the distinction between rules and principles and be flexible when needed, 264 and<br />
place the greatest emphasis on individual rights. 265 Dworkin’s attack on positivism was<br />
an attempt <strong>to</strong> point out the impossibility of strict rule positivism and the inevitable<br />
amount of discretion, and <strong>to</strong> synthesize these assumptions in a way that would preserve<br />
the idea of the rule of law, adapt judicial discretion within rational boundaries, and produce<br />
liberal outcomes. It was a theory of legal liberalism maintaining the faith both in<br />
the rule of law and in the glories of the Warren Court.<br />
The reactions <strong>to</strong> the contemporary problems revealed the tension within the profession.<br />
Many legal scholars developed alternative theories but remained true <strong>to</strong> the<br />
claim of neutrality and rationality. Even if the majority accepted the fact that there was<br />
discretion in judicial decision-making and that the courts did sometimes legislate, they<br />
sought <strong>to</strong> elaborate objective standards for the reasoning in order <strong>to</strong> minimize subjective<br />
260 Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press 1996),<br />
60–82.<br />
261 Jerome J. Shestack, Foreword, 1 Human Rights vii, vii (1970). The Harvard Civil Rights-Civil Liberties<br />
Law Review and Columbia Survey of Human Rights Law were also founded in the late 1960s. See<br />
section 2.6 above.<br />
262 See, e.g., John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press<br />
1971); Robert Nozick, Anarchy, State, and U<strong>to</strong>pia (Oxford: Blackwell Publishing 1974). The former is a<br />
liberal theory and the latter is a libertarian theory.<br />
263 Ronald Dworkin, Philosophy and the Critique of Law, 147–149, 153–157, 166–169, in Wolff (ed.)<br />
1971, supra n. 245 at 168–194.<br />
264 Ronald M. Dworkin, The Model of Rules, 35 University of Chicago Law Review 14, 22–29, 32–40<br />
(1967).<br />
265 Ronald Dworkin, Taking Rights Seriously, 180–181, 193–194, in Ros<strong>to</strong>w (ed.) 1971, supra n. 244 at<br />
168–194.<br />
87
discretion. 266 Even if many of the realist insights were incorporated in<strong>to</strong> legal thought,<br />
the emphasis on the neutrality and rationality of the legal process was great, and legal<br />
theory aimed at minimizing the personal input in legal reasoning.<br />
The persistent commitment <strong>to</strong> neutrality and rationality provoked more critical responses,<br />
<strong>to</strong>o. Critical scholars labeled the defense of the tradition as liberal legalism,<br />
and attacked the foundations of legal thought. Those who were more willing <strong>to</strong> revise<br />
the tradition argued for a more realistic scholarship, and were skeptical of the possibility<br />
of neutrality in judicial decision-making. 267 Arthur Miller argued that values and ideologies<br />
were necessary parts of law and legal scholarship and therefore had <strong>to</strong> be openly<br />
explicated. 268 With respect <strong>to</strong> legal theory and reasoning, faith in liberal legalism distinguished<br />
radical scholars from alternative scholars. The frustration with legalism was<br />
evident in Lester Mazor’s critique, for whom legalism was “a law-worship which<br />
ma[de] law in<strong>to</strong> ideology,” and hence law was “equated with justice and order or it<br />
[was] at least assumed <strong>to</strong> be the principal vehicle of their accomplishment.” 269 According<br />
<strong>to</strong> the critical view, the “crisis of liberal legalism” followed the fact that law and<br />
social ideology were connected and law was thus part of the problem rather than a solution.<br />
As legal scholars were developing theories <strong>to</strong> make law a powerful <strong>to</strong>ol of rights,<br />
critical scholars became pessimistic and argued that the problems of law could not be<br />
overcome if the problems of society were not resolved <strong>fi</strong>rst.<br />
For the radicals, the crisis of contemporary law was fundamental. As scholars of<br />
law and development had realized, law followed the development of society and created<br />
a framework for capitalist ideology. 270 Thus, the critical scholars argued that there were<br />
more fundamental problems <strong>to</strong> solve than <strong>to</strong> <strong>fi</strong>gure out how law could guarantee peace<br />
and equality. 271 With the help of the theory of Max Weber, David Trubek pointed out<br />
that since modern Western law was an outcome of the development of capitalism and a<br />
major contribu<strong>to</strong>r <strong>to</strong> its preservation, it opposed democratic interests. 272 The rise of the<br />
Marxian-Weberian scholarship and social criticism, as well as the disappointments with<br />
the social reforms and the development mission led <strong>to</strong> the realization of the fundamental<br />
bias of law <strong>to</strong>wards the interests of capitalism. The critical notion, then, encouraged<br />
elaboration of a theory that could decode the structures of the legal system. The 1960s<br />
had been a time of the development of critical thought, and in the early-1970s, critical<br />
266 George C. Christie, Objectivity in the Law, 78 Yale Law Journal 1311, 1312–1314, 1326–1327, 1333–<br />
1334, 1349 (1969).<br />
267 Jan G. Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and<br />
Political Science, 20 Stanford Law Review 169, 192–195 (1968); Graham Hughes, Rules, Policy, and<br />
Decision Making, 77 Yale Law Journal 411–439 (1968).<br />
268 Arthur Selwyn Miller, The Myth of Objectivity in Legal Research and Writing, 18 Catholic University<br />
Law Review 290, 290–298, 302–306 (1969).<br />
269 Lester Mazor, The Crisis of Liberal Legalism, 81 Yale Law Journal 1032, 1034 (1972).<br />
270 Trubek 1972, supra n. 136 at 15–16.<br />
271 Mazor 1972, supra n. 269 at 1044–1049.<br />
272 David M. Trubek, Max Weber on Law and the Rise of Capitalism, 1972 Wisconsin Law Review 720,<br />
734–745, 749–750.<br />
88
legal scholars began <strong>to</strong> analyze the fundamental problems of law in order <strong>to</strong> point out<br />
the futility of the liberal paradigm.<br />
The critical attitude of the 1960s, the legacy of the New Left, and the vast crisis of<br />
society, the economy, science, and law produced the rise of the critical legal academy.<br />
By the early 1970s, there were many young scholars who grew up during the turbulence<br />
of the previous decade, and acquired a strong basis of critical theoretical knowledge.<br />
The revision of Marxist and critical scholarship occurred later in America than in Europe,<br />
and European Marxism was still relatively unknown <strong>to</strong> the American intelligentsia<br />
in the early 1970s. When the American scholars realized the need of neo-Marxism for<br />
critical thought, they began <strong>to</strong> introduce the European revision <strong>to</strong> their colleagues, 273<br />
since it was considered as a useful basis for a critical theory that could analyze the elements<br />
of society in a critical and dialectical fashion. As the young neo-Marxist scholar,<br />
New Left activist, and a future CLS scholar, Karl Klare, wrote in reviewing Marxist<br />
science and the conception of <strong>to</strong>tality within it, “[d]ialectical analysis discovers the essence,<br />
the universal content or meanings implied in concrete existence.” This was important<br />
because “[t]he whole gives meaning <strong>to</strong> the parts, which are the particular determinants<br />
of the whole.” 274 Dialectical analysis was essential <strong>to</strong> critical legal scholarship<br />
because the problem of liberal legalism regarded “precisely the combination of formal<br />
legal equality and extreme economic inequality which is the distinctive characteristic of<br />
the liberal state.” 275 Recent scholarship had produced lots of evidence on the social<br />
problems, but the reasons for the problems needed further clari<strong>fi</strong>cation. As activism was<br />
waning and the radicals were building careers at the universities, the theoretical understanding<br />
of the deep structures and consciousness became the key word of the critical<br />
enterprise.<br />
The recent development in legal scholarship, debates about legal education, and<br />
the social and legal crisis converged in critical legal scholarship. Richard Abel, for instance,<br />
called for a legal scholarship that would explore the gap between law in books<br />
and law in action, be open with values, and advocate inter-disciplinary methods, 276 because<br />
“an explanation of change in legal standards must involve not only the element of<br />
behavior outside the legal arena, but also behavior inside it, the structure of legal institutions,<br />
ideology, attitudes <strong>to</strong>ward law, and the social and political structure of the larger<br />
society.” 277 The fundamental elements resembled law and society scholarship, but the<br />
stress on the ideological and structural fac<strong>to</strong>rs as well as the relative au<strong>to</strong>nomy of law<br />
brought more critical elements <strong>to</strong> the theory. The transformation of the thought struc-<br />
273 See Dick Howard and Karl E. Klare (eds.), The Unknown Dimension: European Marxism since Lenin<br />
(New York: Basic Books 1972). On the development of American academic Marxism, see Bertell Ollman<br />
& Edward Vernon (eds.), The Left Academy: Marxism on American Campuses, Vols. I–III.<br />
274 Karl E. Klare, The Critique of Everyday Life, the New Left, and the Unrecognizable Marxism, 9, in<br />
Howard and Klare (eds.) 1972, supra n. 272 at 3–33. (Emphasis original).<br />
275 Isaac D. Balbus, The Dialectics of Legal Repression: Black Rebels before the American Criminal<br />
Courts (New York: Russell Sage Foundation 1973), 5.<br />
276 Richard L. Abel, Law Books and Books About Law, 26 Stanford Law Review 175, 184–189, 199–<br />
222, 228 (1973).<br />
277 Id. at 221.<br />
89
tures of the critical scholars directed their interest in the construction of law as well as<br />
the legal consciousness both within and outside the legal profession.<br />
In emphasizing the deep structures of law and consciousness, the constitutive aspects<br />
of law also became important. In a lengthy article on the institutions of dispute<br />
resolution, Abel analyzed the structures and functions of the Western judiciary, arguing<br />
that the western dispute resolution system produced social isolation, depersonalization<br />
and abstraction of social relations, and inequalities in access <strong>to</strong> justice. 278 He noted that<br />
structural analysis and comparative studies “compels us <strong>to</strong> recognize the contingency of<br />
our own ways, and leads us <strong>to</strong> look for explanations.” 279 Western law was pictured as a<br />
social construction which contributed <strong>to</strong> the preservation of social ideology. The combination<br />
of the sociological approach <strong>to</strong> law with the notion of law as a cultural construct<br />
and a perspective on the law's ideological aspects was an important theoretical<br />
element on the way <strong>to</strong>ward fundamental criticism of law. It directed the attention <strong>to</strong>ward<br />
the notion that law was contingent, yet it served certain purposes, and the relationship<br />
between these needed examination and explanation.<br />
The irrationality of law and its ideological nature were the two most fundamental<br />
points of the critical legal scholarship that was developing in the early 1970s. These<br />
were the times when Duncan Kennedy began his criticism of legal reasoning. In 1973,<br />
he articulated the view that there was no rational basis for judicial decision-making.<br />
Since adjudication was also an act of legislation, there was no justi<strong>fi</strong>cation for the coercive<br />
action of the courts. Rules were simply the standards of the mechanics of compromising<br />
conflicting interests and had no individual purpose. 280 Kennedy’s article was one<br />
of the <strong>fi</strong>rst steps <strong>to</strong>ward a sophisticated philosophical critique of legal reasoning. Using<br />
a detailed analysis he sought <strong>to</strong> point out the inconsistencies in the concept of law and<br />
rules and the irrationality of their application. The claim of the irrationality of law was<br />
becoming a theory instead of simple criticism.<br />
Kennedy’s article was innovative at least in a certain sense. The idea of the irrationality<br />
of legal reasoning of course followed from the realists, but Kennedy also reflected<br />
on the coercive nature of the legal process, writing that “[t]he process of rule<br />
application itself has nothing <strong>to</strong> do with ‘justice’ or ‘right.’” Rather, it was merely “an<br />
unfortunate necessity of the perverse structure of the state of nature, and can neither<br />
generate nor implement any value except the value of abiding by the results of the substantively<br />
rational postulated legitimate legislative compromise.” 281 Here Kennedy was<br />
pointing out the circular character of the legitimacy of law. Besides being irrational,<br />
Kennedy declared, a purpose of law was also <strong>to</strong> compel its self-proclaimed legitimacy<br />
through the process of rule application. Thus, besides criticism, he also participated in<br />
278 Abel 1973, supra n. 131 at 265, 289–303.<br />
279 Id. at 219.<br />
280 Duncan Kennedy, Legal Formality, 2 Journal of Legal Studies 351, 356–359, 362–365, 367–371, 378–<br />
391 (1973).<br />
281 Id. at 370.<br />
90
the recent debates on the nature of law 282 by criticizing the efforts <strong>to</strong> create rational<br />
boundaries for judicial discretion. 283 As we saw, the contemporary efforts <strong>to</strong> place legal<br />
reasoning within rational boundaries caused a serious counter-reaction from the radical<br />
side. The insistence on rationality appeared <strong>to</strong> be an effort <strong>to</strong> maintain the legitimacy of<br />
liberal legalism which, for the critical scholars, was the origin of the problem.<br />
The radicals aimed at the roots of the legal system since the problems were seen <strong>to</strong><br />
originate there. Law and poverty was a common <strong>to</strong>pic for legal scholars in the 1960s.<br />
While the critical theory was acquiring a more fundamental character, the critical observation<br />
that law was structurally biased against the poor became more powerfully explained.<br />
284 Marc Galanter, who had learned about the repressive nature of law in the law<br />
and development enterprise, also followed the criticism, arguing that since the position<br />
of the parties, institutional settings, and the construction of rules all favored those in a<br />
better social position and made it more dif<strong>fi</strong>cult for the less privileged <strong>to</strong> achieve their<br />
rights, equal opportunities required a fundamental restructuring. 285 Scholars of the previous<br />
decade had already noted that there was structural bias against the poor, and the<br />
critical scholars of the 1970s continued this tradition with more theory in their research<br />
and more fundamental reforms in their sights.<br />
As the criticism was becoming fundamental, it also attacked the new paradigms of<br />
legal scholarship which were alternatives <strong>to</strong> the tradition. Besides rights theories, law<br />
and economics was another major jurisprudential trend of the 1960s and 1970s, 286 its<br />
purpose being <strong>to</strong> use economic theories in legal analysis. 287 Critical legal scholarship<br />
responded <strong>to</strong> these schools of jurisprudence by pointing out their impossibility. As we<br />
saw, the argument against rights theories was that they were unable <strong>to</strong> provide a rational<br />
basis for adjudication. C. Edwin Baker, who was about <strong>to</strong> attack law and economics,<br />
noted that both traditional utilitarianism and modern rights theories legitimized state<br />
intervention in the market economy in order <strong>to</strong> promote social equality. Thus, he<br />
thought that these two approaches combined could provide a theoretical justi<strong>fi</strong>cation for<br />
delimiting individual wealth maximization for the sake of the general good. 288<br />
This social theory only preceded the more critical response <strong>to</strong> law and economics<br />
which was seen as a justi<strong>fi</strong>cation of modern capitalism. The nihilist Arthur Leff argued<br />
that law and economics were based on irrational social observations and on its self-<br />
282 See Mo<strong>to</strong>aki Funakoshi, Taking Duncan Kennedy Seriously: Ironical Liberal Legalism, 15 Widener<br />
Law Review 231, 243–245 (2009).<br />
283 Kennedy 1973, supra n. 280 at 391–398.<br />
284 Lawrence E. Rothstein, The Myth of Sisyphus: Legal Services Efforts on Behalf of the Poor, 7 University<br />
of Michigan Journal of Law Reform 493, 494–507, 515 (1974).<br />
285 Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9<br />
Law & <strong>Society</strong> Review 95, 103–104, 114–124, 135–151 (1974).<br />
286 Kalman 1996, supra n. 260 at 77. Here we are speaking about the modern law and economics that<br />
developed in the 1960s. Economic analysis of law dates back at least <strong>to</strong> the time of legal realism.<br />
287 See, e.g., Duxbury 1995, supra n. 42 at 301–419; Minda 1995, supra n. 42 at 83–105.<br />
288 C. Edwin Baker, Utility and Rights: Two Justi<strong>fi</strong>cations for State Action Increasing Equality, 84 Yale<br />
Law Journal 39, 48–56, 59 (1974).<br />
91
proclaimed values, 289 while Baker, continuing his social theory, argued that if ef<strong>fi</strong>ciency<br />
was the determining criterion, the rich had the most rights, and law and economics favored<br />
them. Moreover, values within economic analysis of law were derived from market<br />
capitalism, which meant restrictions on individual freedom and its subordination <strong>to</strong><br />
capitalism. 290 In addition, Thomas Heller noted that in environmental questions, the<br />
emphasis on ef<strong>fi</strong>ciency excluded essential aspects of values and policies which had <strong>to</strong><br />
be included <strong>to</strong> make legal analysis rational in this respect. 291 With the analysis of policies<br />
and rights it became usual <strong>to</strong> consider law and economics as just as irrational as<br />
traditional jurisprudence and, furthermore, as a guardian of the dominant ideology since<br />
it derived its values from it and applied them in legal analysis. In tracing the onedimensionality<br />
and false consciousness of modern legal thought, critical scholars saw<br />
that the criteria of values used in traditional jurisprudence and in law and economics<br />
were embedded in the social and economic structures. According <strong>to</strong> the critical scholars,<br />
these schools thus simply legitimized the status quo and excluded the possibility of criticism<br />
beyond the structures. A crucial point was <strong>to</strong> go beyond the standards of society<br />
so that one would not be constrained by its norms.<br />
In <strong>to</strong>uching the fundamentals, the criticism of ideology and structures of law became<br />
central propositions of critical legal scholarship. In the search for authenticity, the<br />
critical legal scholars aligned themselves with the New Left intelligentsia at the academy.<br />
At the heart of critical scholarship was the need for a new legal consciousness; just<br />
as at the heart of the counter-culture was the emancipation of the consciousness of the<br />
self. The Beats, existentialists, and hippies, for example, yearned <strong>to</strong>ward authenticity<br />
and nature. 292 The non-conformist wanted <strong>to</strong> escape the madness of society, become<br />
free, and acquire an authentic awareness of the self. Law and economics and the rights<br />
theories were critical in pointing out the inadequacy of traditional scholarship, but they<br />
did not criticize the inner logic of law itself or the whole basis on which it was constructed.<br />
The fundamental questioning of the values of society in critical legal scholarship<br />
reflected the divergence from the traditional way of life of the counter-cultures.<br />
For some part of critical legal scholarship, then, there was a move from structures<br />
<strong>to</strong> consciousness. Charles Reich wrote in 1970 that the “real target [was] not a structural<br />
enemy but consciousness”, and therefore “[t]he creation of a new consciousness [was]<br />
the most urgent of America’s real needs.” 293 Echoing this notion, Lester Mazor called<br />
for a “renewed understanding of our common humanity” that could lead <strong>to</strong>ward a “de<strong>fi</strong>nition<br />
of freedom which is not merely a liberty from, but liberation <strong>to</strong>; a de<strong>fi</strong>nition of<br />
289 Arthur Allen Leff, Economic Analysis of Law: Some Realism about Nominalism, 60 Virginia Law<br />
Review 451, 456–459, 466–470, 474–481 (1974).<br />
290 C. Edwin Baker, The Ideology of the Economic Analysis of Law, 5 Philosophy and Public Affairs 3,<br />
9–22, 27–46 (1975).<br />
291 Thomas C. Heller, The Importance of Normative Decision-Making: The Limitations of Legal Economics<br />
as a Basis for a Liberal Jurisprudence ─ As Illustrated by the Regulation of Vacation Home Development,<br />
1976 Wisconsin Law Review 385, 394–399, 438, 450–451, 458–459, 467–489, 497–499.<br />
292 Jacoby 1987, supra n. 40 at 65–71, 140–141.<br />
293 Reich 1970, supra n. 248 at 264, 292.<br />
92
equality which does not rest with the evenhanded administration of opportunity <strong>to</strong> unequals,<br />
but demands a distributive justice which compensates for inequalities, whatever<br />
their origin; a de<strong>fi</strong>nition of participation which is not satis<strong>fi</strong>ed with representation, but<br />
claims the right <strong>to</strong> direct involvement in the determination of common good.” 294 In the<br />
same spirit, Baker wrote that there was a need <strong>to</strong> develop a “new understanding as <strong>to</strong><br />
how law can be used <strong>to</strong> structure the social arena in a way that promotes human welfare<br />
and human sovereignty.” 295 The shift <strong>to</strong>ward consciousness meant a new understanding<br />
of humanity, and law in the pursuit of it. A central tenet was <strong>to</strong> criticize the traditional<br />
legal consciousness and develop a new one.<br />
The fundamental element of the critique required a concept that could grasp the<br />
consciousness of the legal profession and relate it <strong>to</strong> society. One of the most famous<br />
conceptions of legal consciousness was the one Duncan Kennedy developed in the mid-<br />
1970s in The Rise and Fall of Classical Legal Thought, 296 which remained unpublished.<br />
According <strong>to</strong> him, legal consciousness was “a set of concepts and intellectual operations<br />
that evolve[d] according <strong>to</strong> a pattern of its own, and exercise[d] an influence on results<br />
distinguishable from those of political power and economic interests.” 297 The concept<br />
referred <strong>to</strong> common legal thinking, which was essentially a legal consciousness, but its<br />
au<strong>to</strong>nomy was relative <strong>to</strong> the extent that it mediated law with political and economic<br />
ideologies. Legal consciousness was thus a concept that uni<strong>fi</strong>ed the legal profession,<br />
and linked it <strong>to</strong> the political and economic elite. 298 Legal consciousness was a concept<br />
with which one could describe the traditional legal thought, and incorporate the dominant<br />
economic and political values in<strong>to</strong> legal thinking while maintaining its au<strong>to</strong>nomy.<br />
It also helped <strong>to</strong> analyze the differences in legal reasoning within the dominant legal<br />
thought, since scholars and lawyers could disagree on particular problems while sharing<br />
the fundamental thought structure.<br />
The concept of legal consciousness reflected structuralism and the contemporary<br />
studies on the genealogy of ideas. In the 1970s, Thomas Kuhn’s concept of the paradigm<br />
was a trend, and talk about “paradigm shift” was popular in law and other disciplines.<br />
299 Legal consciousness was a means of grasping the shared concepts of the profession<br />
within its context and point out the structural biases of the profession, and it thus<br />
was a necessary concept for critical scholarship. It was a part of the elaboration of a<br />
conceptual apparatus that could grasp the <strong>to</strong>tality of the social order and place it under<br />
investigation.<br />
294 Mazor 1972, supra n. 269 at 1052.<br />
295 Baker 1975, supra n. 290 at 48.<br />
296 Duncan Kennedy, The Rise & Fall of Classical Legal Thought (Washing<strong>to</strong>n, D.C.: Beard Books<br />
2006). The book was written in the mid-1970s but was not published till 2006. The manuscript, however,<br />
circulated in academia and was widely read and cited. (See id. at vii–viii.) References here are <strong>to</strong> the<br />
published edition. Duncan Kennedy has left some other interesting papers unpublished. (Duxbury 1995,<br />
supra n. 42 at 456; James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought,<br />
133 University of Pennsylvania Law Review 685, n. 46 (1985).)<br />
297 Kennedy 2006, supra n. 296 at 2.<br />
298 Id. at 1–7.<br />
299 Kalman 1996, supra n. 260 at 99.<br />
93
The criticism of the consciousness behind the law as well as the project of socalled<br />
<strong>to</strong>tal criticism became crucial tasks for critical legal scholarship. The books Rober<strong>to</strong><br />
Mangabeira Unger published in the mid-1970s represent essential stages in the development<br />
of new way of thinking and criticism of contemporaneous. 300 Unger’s<br />
Knowledge and Politics began with a proclamation: “I have written this essay as an act<br />
of hope. It points <strong>to</strong>ward a kind of thought and society that does not yet and may never<br />
exist.” 301 Unger developed a full critique of the society that could reveal its ultimate<br />
irrationality and ideology and establish a context for an alternative ideology for a better<br />
society. He argued that liberalism contained antinomies, or paradoxes that caused contradictions<br />
and conflicts within consciousness, society, and law. 302 These “antinomies<br />
ar[o]se out of an identical conception of the way universals (theory, reason, and rules)<br />
[we]re related <strong>to</strong> particulars (fact, desire, and values).” 303<br />
Unger’s theory was a synthesis of the critical thought of the 1960s, expressed in<br />
philosophical language. At the heart of his theory was the notion of polarities between<br />
the universal and the particular, and the fact and the value, and the contradictions, or<br />
antinomies, between them. Unger sought <strong>to</strong> demonstrate that liberal consciousness kept<br />
the form and the substance of thought and political activity separated, and this caused<br />
paradoxes that were impossible <strong>to</strong> resolve. Unger argued, however, also that there could<br />
be no particular without the universal, and vice versa, and there could be no facts without<br />
values. Hence the legal system was also both substance and process, and these two<br />
could not be kept separate without logical inconsistencies. The purpose here was <strong>to</strong> tie<br />
all of the elements of law and society <strong>to</strong>gether, and thus <strong>to</strong> produce a theory of <strong>to</strong>tal criticism.<br />
The aim of the <strong>to</strong>tal criticism was <strong>to</strong> point out that the legal process could not<br />
function the way it was supposed <strong>to</strong> under modern western liberal democracy. As Unger<br />
explained, the antinomy of rules and values in legal justice was that it could neither dispense<br />
values nor be made compatible with them. Adjudication in the sense of the rule of<br />
law was thus a paradox, because values, which were subjective, were always present<br />
within it and there were no standards of rational decision-making. The subjectivity of<br />
values ought <strong>to</strong> be included in law so that it could promote the true good of human nature.<br />
304 By pointing out that rules and facts as well as the processes of thought in which<br />
they were connected were always tied <strong>to</strong> values, Unger sought <strong>to</strong> demonstrate that legal<br />
rules and principles were always preconditioned by the person applying them and by the<br />
society that created them. This <strong>to</strong>tal criticism was an articulation of the idea that law<br />
was bound by the social structures and consciousness, and therefore an understanding of<br />
the deep structures and a fundamental alteration was needed <strong>to</strong> provide real alternatives.<br />
300 Jonathan Turley, The Hitchhiker’s Guide <strong>to</strong> CLS, Unger, and Deep Thought, 81 Northwestern University<br />
Law Review 593, 607 (1987).<br />
301 Rober<strong>to</strong> Mangabeira Unger, Knowledge and Politics (New York: The Free Press 1975), vi.<br />
302 Id. at 1–18, 31–41, 51–55, 61–62, 67–76, 108–109.<br />
303 Id. at 105.<br />
304 Id. at 88–100, 145–190, 237–247.<br />
94
Besides being the most ambitious effort <strong>to</strong> produce a critical legal theory, Unger’s<br />
book also demonstrated the problems of criticism. The theory was dif<strong>fi</strong>cult <strong>to</strong> understand<br />
and its reception varied from skeptical <strong>to</strong> critical. Some scholars argued that Unger<br />
stretched his criticism <strong>to</strong>o far, 305 or that he did not take his analysis far enough. 306 In<br />
a very critical response, the book was called confusing, super<strong>fi</strong>cial, unconvincing, and<br />
<strong>to</strong>o abstract and thus empty. 307 In addition, the critics noted that Unger had used subjective<br />
values of good and bad in assessing modern consciousness, and drawn conclusions<br />
without solid logic, 308 and that he had delved in<strong>to</strong> basic problems of philosophy without<br />
however providing any novel solutions <strong>to</strong> them and thus falling in<strong>to</strong> the traps of which<br />
he accused liberal thought. 309 Total criticism involved a new mode of thinking, but Unger’s<br />
critics claimed that he was not able <strong>to</strong> build his theory on a basis any more convincing<br />
than the liberal tradition he criticized. Nevertheless, Unger’s book was the <strong>fi</strong>rst<br />
attempt <strong>to</strong> elaborate a systematic and sophisticated theory of <strong>to</strong>tal criticism of society<br />
and law.<br />
Despite the critical response, Unger developed his theory further by concentrating<br />
on the role of law in modern society in a book titled accordingly. Its fundamental premise<br />
was that modern society required a certain kind of formalist and rational law. The<br />
development of society and the paradoxes within law, however, had turned the law in<strong>to</strong><br />
a threat <strong>to</strong> the prerequisites of society and <strong>to</strong> the rule of law which, nonetheless, mysti<strong>fi</strong>ed<br />
and legitimized the prevailing inequalities. Hence there was “the sense of being<br />
surrounded by injustice without knowing where justice lies.” 310 The relationship between<br />
the form of society and law was crucial because the form of social life “is a<br />
meaningful whole of the most comprehensive kind. Each embodies an entire mode of<br />
human existence. And for each the law plays a crucial role in revealing and determining<br />
305 Karsten Harries, The Contradictions of Liberal Thought, 85 Yale Law Journal 847, 852, 854 (1976).<br />
306 Philip Soper, Book Review [Knowledge and Politics], 75 Michigan Law Review 1539, 1547–1552<br />
(1977).<br />
307 David A.J. Richards, Book Review [Knowledge and Politics], 44 Fordham Law Review 873, 873–874<br />
(1976).<br />
308 Arthur Allen Leff, Memorandum, 29 Stanford Law Review 879, 881–882, 886–888 (1977). Leff criticized<br />
Unger by arguing that there was no justi<strong>fi</strong>cation of why the society Unger described was somehow<br />
better than the contemporary one. A curious thing about Unger’s book is that there is an analysis of God<br />
at the end, and the book ends with words “Speak, God”. (Unger 1975, supra n. 301 at 295.) It is dif<strong>fi</strong>cult<br />
<strong>to</strong> say what in fact was his purpose in this ending, but it seems that he was referring <strong>to</strong> the fact that all<br />
knowledge is context-bound. According <strong>to</strong> Unger, people cannot obtain knowledge of the true essence of<br />
things, all knowledge being related <strong>to</strong> the context of observation. To know the “true essence” of something<br />
would be God-like knowledge and that is possible only through divine revelation. Thus, if God<br />
never spoke, people were always limited in their knowledge. Now, Unger criticized contemporary law<br />
and de<strong>fi</strong>ned his concept of “good”. Because the knowledge of good was always limited, the analysis had<br />
<strong>to</strong> be s<strong>to</strong>pped at its natural boundary, which was the waiting for God.<br />
309 Anthony T. Kronman, Book Review [Knowledge and Politics], 61 Minnesota Law Review 167, 194–<br />
199 (1976). Kronman’s review is a comprehensive critique of the philosophy of Unger. In the appendix <strong>to</strong><br />
the review (id. at 200–205) is an interesting correspondence between Kronman and Unger, which, among<br />
other things, opens up the religious dimensions of Unger’s philosophy.<br />
310 Rober<strong>to</strong> Mangabeira Unger, Law in Modern <strong>Society</strong>: Toward a Criticism of Social Theory (New York:<br />
The Free Press 1976), 166–223, quotation at 175.<br />
95
the relationship of belief <strong>to</strong> organization.” 311 Traditional social theories had either rei<strong>fi</strong>ed<br />
consciousness or disregarded it. Therefore, there was no way <strong>to</strong> escape the dilemma<br />
of the fact that the rule of law could not keep its promises. Social theory had thus <strong>to</strong><br />
become both metaphysical and political. 312<br />
Criticism of Unger’s theory pointed out the huge split in the ways of thinking. The<br />
famous sociologist, Talcott Parsons, argued that Unger’s conception of the relation between<br />
law and the state, and the signi<strong>fi</strong>cance of formalism for the rule of law were <strong>to</strong>o<br />
rigid and not completely applicable <strong>to</strong> modern society. Unger had not unders<strong>to</strong>od the<br />
development of society or the role of law within it. 313 Unger’s theories were interesting<br />
depictions of their time and legal scholarship. Unger reflected the general social criticism<br />
and the concepts of false consciousness and one-dimensionality, and sought <strong>to</strong><br />
point out that the modern liberal theory in its simplest sense was untenable. He dressed<br />
these thoughts in very sophisticated and scienti<strong>fi</strong>c language, and analyzed the scienti<strong>fi</strong>c<br />
aspects of law and society instead of simply criticizing them from his subjective point<br />
of view although, according <strong>to</strong> his critics, he was not able <strong>to</strong> completely detach himself<br />
from subjectivity.<br />
Sometimes even labeled as the “master theoretician” of CLS, 314 Unger managed <strong>to</strong><br />
capture many of the essentials of the critical thought of the time in his theory. His books<br />
represented the most systematic and sophisticated form of critical legal thought at a time<br />
when it was turning in<strong>to</strong> a broader academic movement. By using a multi-disciplinary<br />
analysis, Unger sought <strong>to</strong> point out that the institutions of modern society were based on<br />
relative values, and that the legal system that was meant <strong>to</strong> protect these values was in<br />
fact in contradiction <strong>to</strong> them. Criticism of law was thus moving from the stress on the<br />
311 Id. at 252.<br />
312 Id. at 243–268.<br />
313 Talcott Parsons, Rober<strong>to</strong> Mangabeira Unger, Law in Modern <strong>Society</strong>, 12 Law & <strong>Society</strong> Review 145,<br />
148–149 (1977).<br />
314 Stephen B. Presser, Some Realism about Orphism, or, the Critical Legal Studies Movement and the<br />
Great Chain of Being: An English Legal Academic’s Guide <strong>to</strong> the Current State of American Law, 79<br />
Northwestern University Law Review 869, 873 (1985). Schlegel, on the other hand, argues that Unger’s<br />
contribution <strong>to</strong> CLS has not been great. (John Henry Schlegel, Notes Toward an Intimate, Opinionated,<br />
and Affectionate His<strong>to</strong>ry of the Conference on Critical Legal Studies, 36 Stanford Law Review 391, 400<br />
(1984)). While it is probably true that Unger did not do much for the Conference on Critical Legal Studies,<br />
the theories of his early books (Unger 1975, supra n. 301; Unger 1976, supra n. 310) belong among<br />
the most systematic and sophisticated CLS theories. It is thus unfortunate that they are not that familiar.<br />
As Duxbury writes, Unger’s <strong>fi</strong>rst two books were “frequently cited, but seldom discussed.” (Neil T.<br />
Duxbury, Look Back in Unger: A Retrospective Appraisal of Law in Modern <strong>Society</strong>, 49 Modern Law<br />
Review 658, 658 (1986)). For reviews of Unger's theory, see Allan C. Hutchinson and Patrick J. Monahan,<br />
The “Rights” Stuff: Rober<strong>to</strong> Unger and Beyond, 62 Texas Law Review 1477–1539 (1984); Hugh<br />
Collins, Rober<strong>to</strong> Unger and the Critical Legal Studies Movement, 14 Journal of Law and <strong>Society</strong> 387–<br />
410 (1987); Russell Pannier, Rober<strong>to</strong> Unger and the Critical Legal Studies Movement: An Examination<br />
and Evaluation, 13 William Mitchell Law Review 647–683 (1987); Duxbury 1986 id.; William Ewald,<br />
Unger’s Philosophy: A Critical Legal Study, 97 Yale Law Journal 665–756 (1988); William P. Alford,<br />
The Inscrutable Occidental? Implications of Rober<strong>to</strong> Unger’s Uses and Abuses of the Chinese Past, 64<br />
Texas Law Review 915–972 (1986). See also the symposium on Unger’s theory in 81 Northwestern University<br />
Law Review 589–952 (1987).<br />
96
iases of law <strong>to</strong>wards the notion that law was not simply political, but also contradic<strong>to</strong>ry<br />
beneath the surface of apparent rationality.<br />
From the mid-1970s onwards, the major tenet of criticism was <strong>to</strong> articulate the impossibility<br />
of the modern system and <strong>to</strong> call for a thoroughgoing alternative. Duncan<br />
Kennedy also elaborated his theory on the contradictions and inconsistencies of law.<br />
These consisted of the fact that values were inherent in law and their presence depended<br />
on the form. Therefore, values and rules, and form and substance were connected. This<br />
resulted in the contradiction between individualism and altruism in law. The former was<br />
manifested in formal and neutral rules which supported freedom of individual choice,<br />
while the latter was manifested in flexible standards which were used <strong>to</strong> promote the<br />
common good. The problems were, however, that, <strong>fi</strong>rst, there was no rational way <strong>to</strong><br />
choose between these two and, second, both of them could be used in similar cases <strong>to</strong><br />
obtain contradic<strong>to</strong>ry results. 315<br />
In this “indeterminacy thesis”, Kennedy sought <strong>to</strong> demonstrate the inherent irrationality<br />
of legal reasoning. At the basis of his argument was the notion that both rules<br />
and standards, both individualism and altruism, were biased and, moreover, could be<br />
used in similar cases <strong>to</strong> obtain contradic<strong>to</strong>ry results. Thus, legal arguments could be<br />
manipulated <strong>to</strong> mean contradic<strong>to</strong>ry things. This was a response <strong>to</strong> the legal theories that<br />
sought <strong>to</strong> construct a rational basis for legal reasoning since, as Kennedy wrote, “we<br />
cannot ‘balance’ individualist and altruist values or rules against equitable standards,<br />
except in the tau<strong>to</strong>logical sense that we can, as a matter of fact, decide if we have <strong>to</strong>.” 316<br />
By arguing that conflict was inherent in law and contradic<strong>to</strong>ry decisions could always<br />
be made, critical scholarship could point out that recent theories had not solved the<br />
problems of formalism but had merely brought new, apparently neutral but equally irrational<br />
ideas <strong>to</strong> legal thought.<br />
Critical scholars analyzed the irrationalities of the modern legal system and<br />
thought in various respects, although not always in the radical sense of Duncan Kennedy.<br />
They argued that alternative dispute resolution should be used in assisting the poor<br />
because the flaws in the system made traditional legal aid inef<strong>fi</strong>cient, 317 and that the<br />
relationship between law and society caused both the inequalities in the health care services<br />
and the inability of the government <strong>to</strong> deal with the issue. 318 In addition, James<br />
Atleson, who focused on labor law, noted that traditional policy and scholarship had<br />
neglected the realities of labor 319 and supported the biases of the law. 320 The early criti-<br />
315 Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685,<br />
1710–1724, 1751–1776 (1976).<br />
316 Id. at 1775.<br />
317 Marc Galanter, The Duty Not <strong>to</strong> Deliver Legal Services, 30 University of Miami Law Review 929,<br />
930–932, 939–945 (1976).<br />
318 Rand E. Rosenblatt, Dual Track Health Care ─ The Decline of the Medicaid Cure, 44 University of<br />
Cincinnati Law Review 643, 659–661 (1975).<br />
319 James B. Atleson, Work Group Behavior and Wildcat Strikes: The Causes and Functions of Industrial<br />
Civil Disobedience, 34 Ohio State Law Journal 750, 752–754, 759–775, 792–809 (1973).<br />
320 James B. Atleson, Threats <strong>to</strong> Health and Safety: Employee Self-Help Under the NLRA, 59 Minnesota<br />
Law Review 647, 656–664, 667–675, 686–699, 702–703 (1975).<br />
97
cal legal studies reflected the “law is politics” argument by suggesting that legal standards<br />
originated in political processes which in turn reflected social and economic interests.<br />
It was then further argued that law forced the legitimacy of the existing biased institutions<br />
and reshaped the consciousness of people. By demonstrating that law was a<br />
social construct but also had a constitutive aspect, the critics reflected the New Left ideas<br />
of one-dimensional society and the alienation of the individual.<br />
Critical legal scholarship was a diversi<strong>fi</strong>ed phenomenon, but at its heart lay the<br />
idea of analyzing the paradoxes and inconsistencies of modern law. Critical legal scholars<br />
did not consider the prevailing legal theory formalist in the extreme sense but they<br />
nonetheless noted that the formalist elements in legal reasoning maintained the idea of<br />
the neutrality and rationality of law. 321 Rather than formalism, it was the structures and<br />
the consciousness that had <strong>to</strong> be criticized. As noted by David Nelken, whereas the various<br />
forms of sociological jurisprudence analyzed law in context, critical scholarship<br />
analyzed the context by studying the ways law created rationality from irrationality and<br />
by analyzing the values and policies underlying legal doctrine. 322 For the critics, the<br />
relationship between law and society was complex and the ideological functions of law<br />
had <strong>to</strong> be studied as well, because the rule of law, as Mor<strong>to</strong>n Horwitz declared, created<br />
formal equality but promoted substantive inequality, encouraged the wealthy <strong>to</strong> oppress<br />
the weak by endorsing procedural justice, and depersonalized human relations through<br />
rational legality. 323 Critical analysis was set <strong>to</strong> extirpate these contradictions reflected in<br />
law which then shrouded them in the language of formality. By the mid-1970s, critical<br />
legal scholars had become convinced that modern law was unable <strong>to</strong> ful<strong>fi</strong>ll its promises,<br />
and they <strong>to</strong>ok it as their task <strong>to</strong> reveal this situation.<br />
Critical legal scholarship developed during the 1970s when the general social atmosphere<br />
was becoming more conservative following the radicalism of the 1960s. This<br />
reflected the legacy of the New Left in the academy. Just as the New Left had searched<br />
for a participa<strong>to</strong>ry democracy that would ful<strong>fi</strong>ll the promises of the American Revolution,<br />
critical legal scholarship sought <strong>to</strong> transcend the false consciousness of liberal legalism.<br />
As the young would-be scholars who grew up in the New Left atmosphere matured,<br />
they began <strong>to</strong> set out their critical thoughts in the form of scholarship. As Duncan<br />
Kennedy has since described the situation, he was a bohemian youngster in a black turtleneck<br />
reading French existentialism and philosophy, and then, as a young teacher he<br />
was influenced by the critical scholarship of Rober<strong>to</strong> Unger, Mor<strong>to</strong>n Horwitz, Karl<br />
Klare, and Al Katz. 324 Critical scholars were people identifying with the New Left cause<br />
and the non-conformist ideology of the 1960s. The impulses of critical scholarship came<br />
from society, and the development of the theory reflected the currents of philosophy and<br />
science. The question was also of young scholars who were disappointed with the tradi-<br />
321 Unger 1976, supra n. 310 at 193–196; Kennedy 1976, supra n. 313 at 1731–1732.<br />
322 David Nelken, Critical Criminal Law, 14 Journal of Law and <strong>Society</strong> 105, 110 (1987).<br />
323 Mor<strong>to</strong>n J. Horwitz, The Rule of Law: An Unquali<strong>fi</strong>ed Human Good? 86 Yale Law Journal 561, 566<br />
(1977).<br />
324 A Conversation with Duncan Kennedy, 2/24 The Advocate 56, 59 (1994).<br />
98
tional academy and wanted <strong>to</strong> challenge the authority of the old faculty and traditional<br />
scholarship.<br />
As the critical scholars began <strong>to</strong> pay attention <strong>to</strong> the causes of the legal crisis, they<br />
started <strong>to</strong> examine the dynamics of legal thought and <strong>to</strong> criticize its ideological aspects.<br />
Critical legal scholarship did not simply criticize law but sought <strong>to</strong> analyze its deep<br />
structures and <strong>to</strong> point out their impact on the social reality and the law. The radical<br />
criticism was a synthesis of social radicalism and the recent critical and alternative<br />
scholarship both in law and the academia in general. It developed in the early 1970s by<br />
turning critical and sociological jurisprudence in<strong>to</strong> a more systematic critical theory, and<br />
even though there still were only a few articles in the mid-1970s, the latter part of the<br />
decade witnessed a tremendous increase in the critical legal literature and the organization<br />
of the critical movement. Nevertheless, the image of the development of critical<br />
legal scholarship would be inadequate without a look at some particular aspects of its<br />
development. Thus, I shall briefly examine the development of the critical thought in<br />
legal his<strong>to</strong>ry, constitutional law, and criminal law, because these insights provide further<br />
perspectives.<br />
3.1.4 Critical perspectives on legal his<strong>to</strong>ry<br />
Since alternative scholarship endorsed inter-disciplinary legal studies, legal his<strong>to</strong>ry was<br />
an important part of the law and society movement. It was also important for critical<br />
legal scholarship because of the need <strong>to</strong> point out the development of law in order <strong>to</strong><br />
reveal its social functions. Sociological legal his<strong>to</strong>ry had been developing since the<br />
1950s, and by the 1970s, there was a tradition of alternative legal his<strong>to</strong>ry that studied<br />
the his<strong>to</strong>ry of the social functions of law 325 and the general context in which the legal<br />
changes <strong>to</strong>ok place. 326 Willard Hurst, law and society scholar, and a remarkable <strong>fi</strong>gure<br />
in American legal his<strong>to</strong>ry, criticized traditional legal his<strong>to</strong>ry for its emphasis on courts<br />
and doctrines and for its neglect of social fac<strong>to</strong>rs, arguing that legal his<strong>to</strong>ry had <strong>to</strong> focus<br />
on law in action and relate law <strong>to</strong> other spheres of society, such as the economy, religion<br />
and social class. 327 Hurst, however, distanced himself from the Marxist tradition.<br />
The difference between the his<strong>to</strong>ry of law and society on the one hand, and Marxist his<strong>to</strong>ry<br />
on the other, was that the former “stress the economic (in the broad sense) but do<br />
not ignore the complementary role of other fac<strong>to</strong>rs.” 328 The difference between the critical-dialectical<br />
method of Marxism and the functionalism of law and society scholarship<br />
was not tremendous, but it reflected the dynamic between sociological and critical jurisprudence.<br />
It was this dynamic from which critical legal his<strong>to</strong>ry originated.<br />
325 William J. Chambliss, A Sociological Analysis of the Law of Vagrancy, 12 Social Problems 67–77<br />
(1964).<br />
326 See William J. Chambliss (ed.), Crime and the Legal Process (New York: McGraw-Hill 1969), 8–10.<br />
327 James Willard Hurst, Legal Elements in United States His<strong>to</strong>ry, V Perspectives in American His<strong>to</strong>ry 1,<br />
14–36 (1971).<br />
328 Auerbach; Garrison; Hurst; Mermin 1961, supra n. 173 at 86.<br />
99
Critical legal his<strong>to</strong>ry emerged from the notion that law withheld aspects of consciousness<br />
and power which sometimes functioned au<strong>to</strong>nomously and sometimes reflected<br />
the tensions from which law originated back on society. For instance, in an article<br />
on the emergence of the instrumental conception of law in Antebellum America,<br />
Mor<strong>to</strong>n Horwitz argued that law did not simply respond <strong>to</strong> social change, but judges had<br />
also used law <strong>to</strong> encourage social change and promote commercial interests. 329 In addition,<br />
in an analysis of the theory of law and society legal his<strong>to</strong>ry, Mark Tushnet noted<br />
that Willard Hurst’s conception of law was based on an optimistic presumption of social<br />
consensus and ignored the relation between the social class struggle and law. 330 Critical<br />
analysis of the his<strong>to</strong>ry of law had <strong>to</strong> acknowledge the complex interdependence between<br />
law and society because the functional perspective, it was argued, provided <strong>to</strong>o rational<br />
an image of legal his<strong>to</strong>ry.<br />
As in critical legal theory, legal consciousness and the structures of law were essential<br />
aspects of critical legal his<strong>to</strong>ry. This was clear in the scholarship of Mor<strong>to</strong>n<br />
Horwitz, the most important <strong>fi</strong>gure in the critical legal his<strong>to</strong>ry of the 1970s. He thought<br />
that traditional legal his<strong>to</strong>ry was very conservative because it focused on the doctrine<br />
and the profession, emphasized origins and continuity, and had neglected the relationship<br />
between law and politics, as well as the various conflicts that had characterized the<br />
his<strong>to</strong>ry of law. Thus, wrote Horwitz, traditional legal his<strong>to</strong>ry “never conceives of legal<br />
change as the result of political struggle but only as a result of changes in the received<br />
tradition brought about as jurisprudential thought progressively unfolds new truths.” 331<br />
Horwitz criticized traditional legal his<strong>to</strong>ry, not law and society legal his<strong>to</strong>ry, but the<br />
point was that legal his<strong>to</strong>ry should analyze the inner conflicts of law and see law as a<br />
result of social and political conflicts.<br />
In the course of the decade, Horwitz continued his project of combining the instrumental<br />
conception of law with Marxist elements. He noted that the changes in property<br />
law responded <strong>to</strong> the needs of the developing economy in the early nineteenth century,<br />
332 and that the changes in contract law reflected the rise of market capitalism at the<br />
same time. 333 If Marxism means stress on the economy and class struggle in explaining<br />
social inequities, 334 then Horwitz’s legal his<strong>to</strong>ry was Marxist <strong>to</strong> a large extent even<br />
though he did not underline the fact. He analyzed the changes in law against their economic<br />
background and noted that as the instrumental conception of law developed, legal<br />
329 Mor<strong>to</strong>n J. Horwitz, The Emergence of an Instrumental Conception of American Law, 1780–1820, V<br />
Perspectives in American His<strong>to</strong>ry 285, 291 (1971).<br />
330 Mark Tushnet, Lumber and the Legal Process, 1972 Wisconsin Law Review 114, 115, 119, 121–123,<br />
127, 132.<br />
331 Mor<strong>to</strong>n J. Horwitz, The Conservative Tradition in the Writing of American Legal His<strong>to</strong>ry, 17 American<br />
Journal of Legal His<strong>to</strong>ry 275, 275–283, 292 (1973), quotation at 283.<br />
332 Mor<strong>to</strong>n J. Horwitz, The Transformation in the Conception of Property in American Law, 1780–1860,<br />
40 University of Chicago Law Review 248, 251–252, 255–261, 270, 275–278 (1973).<br />
333 Mor<strong>to</strong>n J. Horwitz, The His<strong>to</strong>rical Foundations of Modern Contract Law, 87 Harvard Law Review<br />
917, 946–955 (1974).<br />
334 See, e.g., Michael Merrill and Michael Wallace, Marxism and His<strong>to</strong>ry, 209, in Ollman & Vernoff<br />
1982, supra n. 40 at 202–241.<br />
100
doctrines were changed <strong>to</strong> promote the interests of the markets and <strong>to</strong> support economic<br />
growth. The studies on the his<strong>to</strong>rical origins of the law propped up the critical argument<br />
that the law favored the rich over the poor.<br />
American his<strong>to</strong>riography in general was changing at the time. There was a long<br />
tradition of critical revision of the past of the republic, 335 and in the 1970s, his<strong>to</strong>rians<br />
revised Marxism <strong>to</strong> suit the modern circumstances and <strong>to</strong> cleanse it from the stigma of<br />
socialist demagoguery. 336 Largely because of the scholarship of Hurst, 337 legal his<strong>to</strong>ry<br />
also had turned <strong>to</strong>ward social his<strong>to</strong>ry <strong>to</strong> a signi<strong>fi</strong>cant extent, 338 which led “one <strong>to</strong> doubt<br />
Horwitz’s conclusion that the conservative tradition is dominant in the writing of American<br />
legal his<strong>to</strong>ry.” 339 Moreover, the early response <strong>to</strong> Horwitz’s articles was relatively<br />
positive. 340 The target of the criticism seems <strong>to</strong> have been more the general scholarly<br />
tradition than contemporary legal his<strong>to</strong>ry in fact. Horwitz felt that the legal his<strong>to</strong>ry writing<br />
in general was conservative, and his scholarship inspired students who felt the same<br />
way. 341 His methods were unconventional, at least <strong>to</strong> the extent that there was no similar<br />
legal his<strong>to</strong>rian in the 1970s even if socially oriented legal his<strong>to</strong>ry in general was becoming<br />
more widespread. It is obvious that critical scholars viewed the tradition in caricaturized<br />
terms but this followed from the way they felt the tradition at the time.<br />
Whatever the state of the general scholarship in the 1970s, the connection between<br />
modern capitalist consciousness and law became pronounced in the critical his<strong>to</strong>ry writing.<br />
Horwitz focused on the modern origins of the connection, noting that the formalism<br />
of the latter part of the nineteenth century resulted from the convergence and synthesis<br />
of the professional need <strong>to</strong> create scienti<strong>fi</strong>c jurisprudence, the need of the economic elite<br />
335 Charles Beard was a pioneer who in the early twentieth century reviewed the drafting of the constitution,<br />
concluding that the Constitution was drafted <strong>to</strong> protect economic interests. (Charles A. Beard, An<br />
Economic Interpretation of the Constitution of the United States (New York: Free Press. New York 1965)<br />
(1913).) In the 1960s, Gabriel Kolko argued that much of the progressive legislation of the early twentieth<br />
century was passed in the interests of corporate capitalism, and thus the “progressive” era was in fact an<br />
era of conservatism. (Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American<br />
His<strong>to</strong>ry, 1900–1916 (New York: The Free Press of Glencoe 1963).)<br />
336 See, e.g., Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon<br />
Books 1972), 25–49.<br />
337 Robert W. Gordon, J. Willard Hurst and the Common Law Tradition in American Legal His<strong>to</strong>ry, 10<br />
Law & <strong>Society</strong> Review 9, 11–12, 45–55 (1975).<br />
338 William E. Nelson, Legal His<strong>to</strong>ry, 1973 Annual Survey of American Law 625–640 (1974).<br />
339 Id. at 626.<br />
340 Wythe Holt, Now and Then: The Uncertain State of Nineteenth-Century American Legal His<strong>to</strong>ry, 7<br />
Indiana Law Review 615, 616–617, 620, 624, 626, 632, 640–641 (1974); Peggy Rabkin, The Origins of<br />
Law Reform: The Social Signi<strong>fi</strong>cance of the Nineteenth Century Codi<strong>fi</strong>cation Movement and its Contribution<br />
<strong>to</strong> the Passage of the Early Married Women’s Property Acts, 24 Buffalo Law Review 683, 684–<br />
686; Edward M. Gaffney Jr., His<strong>to</strong>ry and Legal Interpretation: The Early Dis<strong>to</strong>rtion of the Fourteenth<br />
Amendment by the Gilded Age Court, 25 Catholic University Law Review 207, 207–212 (1976). Holt<br />
noted that although Horwitz’s thesis was convincing he needed further support for his arguments. (Holt<br />
1974, id. at. 632.) Of course, Holt was himself a critical scholar, as will be seen later.<br />
341 See Laura Kalman, Transformations, 37 Tulsa Law Review 849, 849 (2002). Kalman writes that she<br />
decided on her career because of the inspiration the critical and unconventional articles of Horwitz<br />
brought <strong>to</strong> her. It thus seems plausible that the scholarly tradition of the 1970s in general was more conservative<br />
than the recent scholarship has been led <strong>to</strong> assume.<br />
101
<strong>to</strong> stabilize the law, and the fact that the interests of these two groups coincided. 342 His<strong>to</strong>rical<br />
development had also produced the radical separation between law and politics<br />
and the unfounded belief in neutral legalism. 343 His<strong>to</strong>rical studies expanded the critical<br />
notions on the conflicting nature of law. Thus, the biases and inconsistencies beyond the<br />
apparent neutrality and rationality were seen as his<strong>to</strong>rical consequences.<br />
The literature and approaches of critical legal his<strong>to</strong>ry increased after the mid-<br />
1970s, the purpose often being <strong>to</strong> go beyond the social context of the law and society<br />
his<strong>to</strong>ry. 344 In a Marxist analysis of the employment at will rule, Jay Feinman argued that<br />
the rule had developed apart from contract law in order <strong>to</strong> promote the domination of<br />
the labor force by the capitalists. 345 Marxist analysis was often used <strong>to</strong> point out the<br />
myth of neutrality and the class biases of law, as was evident in the study by Mark<br />
Tushnet, who analyzed the inner dynamic of law. Relying on Weber, he pointed out that<br />
the law on slavery evolved from complex situations in<strong>to</strong> a uni<strong>fi</strong>ed body of law. A concept<br />
of formal rationality emerged, allowing the judges <strong>to</strong> apply the law in the best interests<br />
of the slave-owners while maintaining a humane ideology. 346 The purpose of the<br />
analysis of the connections between the relative au<strong>to</strong>nomy and inner dynamic of law on<br />
the one hand, and the social circumstances and ideology on the other, was <strong>to</strong> point out<br />
how law affected people’s consciousness and was a reason for false consciousness. Critical<br />
legal his<strong>to</strong>ry acquired the aspect of ideology and the relative au<strong>to</strong>nomy of law, both<br />
of which marked its difference from the functionalist his<strong>to</strong>ries.<br />
The clash between a modern, functionalist legal his<strong>to</strong>ry and critical legal his<strong>to</strong>ry<br />
came in<strong>to</strong> the open after the mid-decade in the wake of the publication of Lawrence<br />
Friedman's A His<strong>to</strong>ry of American Law. Friedman, himself a law and society scholar,<br />
sought <strong>to</strong> write a his<strong>to</strong>ry of law in its social context. According <strong>to</strong> him, law was a “mirror<br />
of society”, and hence legal his<strong>to</strong>ry <strong>to</strong>ok “nothing as his<strong>to</strong>rical accident, nothing as<br />
au<strong>to</strong>nomous, everything as relative and molded by economy and society.” 347 This, however,<br />
did not please the critical scholars. Lester Mazor argued that Friedman provided<br />
“neither a social his<strong>to</strong>ry of law in the United States nor the means from which we might<br />
construct one.” 348 And Mark Tushnet criticized Friedman for neglecting the relative<br />
342 Mor<strong>to</strong>n J. Horwitz, The Rise of Legal Formalism, 19 American Journal of Legal His<strong>to</strong>ry 251, 256<br />
(1975).<br />
343 Mor<strong>to</strong>n J. Horwitz, The Legacy of 1776 in Legal and Economic Thought, 19 Journal of Law and Economics<br />
621, 624–627, 631–632 (1976).<br />
344 Gordon 1975, supra n. 337 at 51–55. Gordon has called the legal his<strong>to</strong>ry of Hurst realist-functionalism,<br />
thus characterizing it as a variation of the traditional legal his<strong>to</strong>ry. (On the differences between realistfunctionalist<br />
and critical legal his<strong>to</strong>ry, see Robert Gordon, Critical Legal His<strong>to</strong>ries, 36 Stanford Law Review<br />
57, 64, 67, 100–102, n. 120 (1984).)<br />
345 Jay M. Feinman, The Development of the Employment at Will Rule, 20 American Journal of Legal<br />
His<strong>to</strong>ry 118, 131–134 (1976).<br />
346 Mark Tushnet, The American Law of Slavery, 1810–1860: A Study in the Persistence of Legal Au<strong>to</strong>nomy,<br />
10 Law & <strong>Society</strong> Review 119, 152–153, 160, 177–180 (1975).<br />
347 Lawrence M. Friedman, A His<strong>to</strong>ry of American Law (New York: Simon and Schuster 1973), 10.<br />
348 Lester Mazor, Book Review [A His<strong>to</strong>ry of American Law], 60 Minnesota Law Review 147, 158<br />
(1975).<br />
102
au<strong>to</strong>nomy and the ideological function of law and for applying a certain kind of vulgar<br />
Marxist theory that provided only partial explanations. 349<br />
We saw that structures and consciousness were essential <strong>to</strong> critical legal scholarship<br />
and his<strong>to</strong>ry, and the neglect of them was what differentiated sociological approaches<br />
from it. Tushnet concluded that Friedman’s book was <strong>to</strong> be regarded as “the last great<br />
work of the 1950’s, not as the <strong>fi</strong>rst work of the 1970’s or 1980’s.” 350 Critical legal his<strong>to</strong>ry<br />
marked another turn in the writing of American legal his<strong>to</strong>ry. It was an important part<br />
of the development of critical legal scholarship, providing many arguments on the his<strong>to</strong>ry<br />
of modern legal institutions. Its purpose was <strong>to</strong> analyze the his<strong>to</strong>ry of the rule of law,<br />
but, as Horwitz wrote, it was <strong>to</strong> do more than “simply <strong>to</strong> pile on evidence of the hypocritical<br />
character of its claims <strong>to</strong> political neutrality.” 351 Critical legal his<strong>to</strong>ry analyzed<br />
the development and changes in law in a complicated manner in order <strong>to</strong> reveal its true<br />
nature, origins, and purposes. It was not scholarship simply for the sake of his<strong>to</strong>ry, but<br />
had a role in contemporary times as well. It pointed out the origins of modern institutions<br />
and thus contributed <strong>to</strong> the demystifying of ideology. It did not seek <strong>to</strong> legitimize<br />
the authority of the modern state but <strong>to</strong> delegitimize it.<br />
Critical legal his<strong>to</strong>ry developed within the dynamic of legal thought in the late<br />
1960s and during the 1970s. The realistic instrumentalism of law and society and recent<br />
his<strong>to</strong>riography contributed <strong>to</strong> its development, and it rose out of the conflict between the<br />
different approaches. Critical scholars were dissatis<strong>fi</strong>ed with the functionalism of the<br />
law and society legal his<strong>to</strong>ry, and pursued a more complicated theory of the development<br />
of law. Critical legal his<strong>to</strong>ry did not simply criticize, but also sought <strong>to</strong> explain the<br />
development and changes in law in order <strong>to</strong> gain a better understanding of them. In doing<br />
so it applied the methods of Marxism and critical revision of his<strong>to</strong>ry, and thus related<br />
the methods of his<strong>to</strong>ry <strong>to</strong> the recent trends in critical legal scholarship. Horwitz<br />
greatly developed the methodology and substance of critical legal his<strong>to</strong>ry in a series of<br />
articles published in the 1970s and, as will be seen later, his book became one of the<br />
most important pieces of critical legal studies literature.<br />
3.1.5 Constitutional law and criticism<br />
The situation in constitutional law was quite confused in the mid-1960s. 352 Constitutional<br />
law was often at the center of jurisprudential debates because of the central position<br />
of the Constitution and the Supreme Court. Recent Supreme Court decisions had<br />
provoked lots of comment, such as the debate on neutral principles which had exposed<br />
the vulnerable state of constitutional doctrine. Scholars could thus lament that even after<br />
349 Mark V. Tushnet, Perspectives on the Development of American Law: A Critical Review of Friedman’s<br />
“A His<strong>to</strong>ry of American Law”, 1977 Wisconsin Law Review 81, 82–103.<br />
350 Id. at 83.<br />
351 Horwitz 1977, supra n. 323 at 566.<br />
352 Arthur Selwyn Miller, Presidential Power <strong>to</strong> Impound Appropriated Funds: An Exercise in Constitutional<br />
Decision-Making, 43 North Carolina Law Review 502, 515–519 (1965).<br />
103
a thousand years of his<strong>to</strong>ry there was “no accepted conception of the nature of the judicial<br />
process.” 353 At least since the time of legal realism, almost every legal scholar<br />
acknowledged that courts made law in accordance with the changes in society. However,<br />
the traditional view nonetheless held that the courts should declare “as law only the<br />
most widely shared values” or principles that will “gain general assent,” 354 and maintained<br />
the ideals of the rule of law and neutrality of law because of their important symbolic<br />
functions. 355 The Warren Court era made the traditionalists stress the division between<br />
legislative and judicial functions, 356 as well as reason and consistency in judicial<br />
decision-making, 357 while a more critical view held that the faith in neutrality and rationality<br />
merely perpetuated many myths, 358 and thus jurisprudence and the courts ought<br />
<strong>to</strong> advocate value arguments <strong>to</strong> promote social good. 359<br />
There was no extreme formalism in constitutional scholarship but, according <strong>to</strong> the<br />
traditional view, law was <strong>to</strong> be as rational and neutral as possible. While the traditionalists<br />
wanted <strong>to</strong> maintain these notions, alternative scholars of the 1960s and 1970s endorsed<br />
a more social jurisprudence. Critical legal scholarship emanated from the tension<br />
between the traditional and the alternative views. Although comprehensive critical constitutional<br />
theory was not developed until the end of the 1970s, there were critical constitutional<br />
scholars before that. 360 The criticism of constitutional law evolved during the<br />
1960s and 1970s through a series of various forms of criticism and articles pointing out<br />
the flaws in the traditional constitutional theory and thus contributing <strong>to</strong> the development<br />
of the critical thought.<br />
Realist notions with respect <strong>to</strong> constitutional law were clear in the late sixties. For<br />
instance, Arthur Miller, who participated widely in the legal debates of the time and<br />
353 Arthur Selwyn Miller, Some Pervasive Myths about the United States Supreme Court, 10 Saint Louis<br />
University Law Journal 153, 170 (1965).<br />
354 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis:<br />
The Bobbs-Merrill 1962), 239.<br />
355 Paul J. Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harvard<br />
Law Review 56, 62–70 (1965).<br />
356 Philip B. Kurland, Toward a Political Supreme Court, 37 University of Chicago Law Review 19, 20–<br />
22 (1965).<br />
357 Alexander M. Bickel, The Supreme Court and the Idea of Progress (New Haven: Yale University Press<br />
1978), 45–100, 176–177. The book was originally published in 1970. In 1962, Bickel held more realist<br />
notions about law but had become more conservative by 1970.<br />
358 Miller 1965, supra n. 353 at 153–157.<br />
359 Arthur Selwyn Miller & Alan W. Scheflin, The Power of the Supreme Court in the Age of the Positive<br />
State: A Preliminary Excursus Part One: On Candor and the Court, or, Why Bamboozle the Natives?<br />
1967 Duke Law Journal 273, 279–282, 296–299.<br />
360 A good example of realist and alternative constitutional theory of the late 1960s is Arthur Selwyn<br />
Miller, The Supreme Court and American Capitalism (New York: The Free Press 1968). It can be seen as<br />
a synthesis of his post-realist constitutional jurisprudence. Its speci<strong>fi</strong>c purpose was <strong>to</strong> analyze the relationship<br />
between Supreme Court decisions and the economic order and between corporations and the Constitution,<br />
and its basic tenets could be described as follows. The constitution and the Supreme Court are<br />
mixed with the political and economic <strong>fi</strong>elds. Thus, the Constitution is a living document responding <strong>to</strong><br />
the felt necessities of the time. Constitutional decision-making is not purely arbitrary, although personal<br />
biases of the judge and the pursuit of political balance affect it. Moreover, the Court is rather an instrument<br />
than a cause of change. In addition, the division between state powers as well as the public and the<br />
private domain has been blurred during the constitutional development.<br />
104
who was one of the most prominent realist and critical constitutional scholars of the<br />
1960s, encouraged an impact analysis of the Supreme Court decisions. 361 Later he developed<br />
a jurisprudence of consequences that would openly allow policy considerations<br />
in judicial decision-making and incorporate the Universal Declaration of Human Rights<br />
in<strong>to</strong> the Constitution of the United States. 362 The realist insight on the Supreme Court<br />
stressed the impact of the Court’s decisions on society and therefore encouraged policy<br />
analysis over certainty and neutrality. Political jurisprudence was the main realist analysis<br />
of the courts, but legal scholars became more interested in the issue as well.<br />
Policy analysis of the Supreme Court increased in the 1960s. Scholars of political<br />
jurisprudence had suspended “belief in the whole web and myth of specialty, mystery<br />
and tradition that surrounds and supports the judge.” Rather, the purpose was <strong>to</strong> consider<br />
the judge as “one of many government employees, operating in a bureaucratic structure,<br />
performing certain governmental services and generally engaging in the same political<br />
processes as his fellow public servants.” 363 Legal scholars were not, however,<br />
pleased with the behavioralism or political determinism of political jurisprudence because<br />
the Supreme Court was “concerned with formulating and promulgating juristic<br />
theories of politics.” 364 Legal scholars had <strong>to</strong> pay attention not only <strong>to</strong> the policy functions<br />
of the courts but also <strong>to</strong> their legal limits and formulations. Critical constitutional<br />
theory was about <strong>to</strong> be formed as the notions of the political scientists were adapted <strong>to</strong><br />
the contemporary legal debates.<br />
The constitutional status of contemporary problems was naturally an interesting<br />
<strong>to</strong>pic for legal scholars and communitarian values became important arguments. Popular<br />
subjects were the typical problems of concern, such as welfare rights, 365 poverty, 366 and<br />
the discrimination against the African Americans 367 and women. 368 Scholars were often<br />
concerned with the ambiguous status of the constitutional protection of the rights of the<br />
less privileged classes, arguing that constitutional adjudication in fact discriminated<br />
against them or that the law should be changed <strong>to</strong> guarantee equal rights better. The<br />
concern of the alternative scholars was that the traditional doctrinal analysis did not<br />
examine the law in action while emphasizing rationality. They therefore <strong>to</strong>ok the factual<br />
problems as their subjects and developed methodologies <strong>to</strong> explore them.<br />
361 Arthur Selwyn Miller, On the Need for “Impact Analysis” of Supreme Court Decisions, 53<br />
George<strong>to</strong>wn Law Journal 365–401 (1965).<br />
362 Arthur Selwyn Miller, Toward a Concept of Constitutional Duty, 1968 Supreme Court Review 199–<br />
246.<br />
363 Shapiro 1964, supra n. 69 at 297.<br />
364 Miller 1968, supra n. 360 at 30.<br />
365 Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale Law<br />
Journal 1245–1257 (1965).<br />
366 Frank I. Michelman, On Protecting the Poor through the Fourteenth Amendment, 83 Harvard Law<br />
Review 7–59 (1969).<br />
367 Arthur Kinoy, The Constitutional Right of Negro Freedom, 21 Rutgers Law Review 387–441 (1967).<br />
Critical race theory will be dealt with later in the book.<br />
368 Barbara A. Brown, Thomas I. Emerson, Gail Falk, Ann E. Freedman, The Equal Rights Amendment:<br />
A Constitutional Basis for Equal Rights for Women, 80 Yale Law Journal 871–985 (1971). Feminist legal<br />
theory will be dealt with later in the book.<br />
105
Critical scholars were not pleased with the pursuit of rationality and neutrality in<br />
judicial decision-making because they thought that it concealed the motives for the decisions<br />
and thus contributed <strong>to</strong> the persistence of the problems. For instance, Mark<br />
Tushnet argued that inconsistent doctrines and discrimina<strong>to</strong>ry practices followed the<br />
policy motives behind the decisions 369 and the need <strong>to</strong> obtain a majority for the conservative<br />
ideology. 370 David Shapiro also considered the conservative ideology behind<br />
the decisions, 371 and William Clune analyzed how individualist and formalist interpretation<br />
weakened the protection of the constitutional rights of the poor. 372 The proposition<br />
following the criticism was that the courts should not simply protect but also promote<br />
economic equality. 373 According <strong>to</strong> the critical scholars, the apparent neutrality of legal<br />
reasoning exacerbated social inequality because law and legal thinking were structured<br />
<strong>to</strong> favor the powerful classes. Constitutional scholars followed the critical argument that<br />
since there was no rational basis for the judicial decision-making which always promoted<br />
certain interests, policy considerations should be taken in<strong>to</strong> account.<br />
The schism between the traditionalist’s drive <strong>to</strong>ward rationality and the critics’<br />
urge <strong>to</strong>ward policy analysis became obvious in the commentaries on the Supreme<br />
Court’s opinions. Indeed, the rights of the individual citizen and the right <strong>to</strong> personal<br />
liberty were very controversial issues. The abortion case, in which the Court had opined<br />
that it violated the Constitution if abortion during the <strong>fi</strong>rst trimester of pregnancy was<br />
criminalized, was probably the most controversial decision of the 1970s, bringing up the<br />
controversies over rational and arbitrary decision-making. 374 While the point of the traditionalists<br />
criticizing the Court was <strong>to</strong> limit the revival of substantive due process and<br />
create rational and neutral structures for judicial decision-making, the alternative and<br />
critical scholars sought <strong>to</strong> put legal reasoning on terms with modern society. It was argued,<br />
for example, that the abortion decision was distinguished from the infamous substantive<br />
due process decisions of the early twentieth century by the fact that it conformed<br />
<strong>to</strong> the opinion of the majority of the people. 375 Furthermore, although not writ-<br />
369 Mark Tushnet, “…And Only Wealth Will Buy You Justice” ─ Some Notes on the Supreme Court:<br />
1972 Term, 1974 Wisconsin Law Review 177, 178–182, 189–191, 194, 196–197.<br />
370 Mark Tushnet, The Constitutional Right <strong>to</strong> One’s Good Name: An Examination of the Scholarship of<br />
Mr. Justice Rehnquist, 64 Kentucky Law Journal 753, 763–766 (1976).<br />
371 David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harvard Law Review 293, 293, 299,<br />
307, 341–343 (1976).<br />
372 William H. Clune III, The Supreme Court Treatment of Wealth Discriminations under the Fourteenth<br />
Amendment, 1975 Supreme Court Review 289, 302–303, 333–334, 344–352.<br />
373 Lawrence E. Rothstein, Business as Usual? The Judicial Expansion of Welfare Rights, 50 Journal of<br />
Urban Law 1, 16–19 (1972).<br />
374 See Roe v. Wade 410 U.S. 113 (1973). For criticism of the case, see, e.g., John Hart Ely, The Wages<br />
of Crying Wolf: A Comment on Roe v. Wade, 82 Yale Law Journal 920–949 (1973); Richard A. Epstein,<br />
Substantive Due Process by any Other Name: The Abortion Cases, 1973 Supreme Court Review 159–<br />
185. For defense of the decision, see, e.g., Philip B. Heymann & Douglas E. Barzelay, The Forest and the<br />
Trees: Roe v. Wade and its Critics, 53 Bos<strong>to</strong>n University Law Review 765–784 (1973). Much of the<br />
criticism of the decision did not concern the opinion per se but the way it was reached.<br />
375 Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow<br />
of Information <strong>to</strong> the Justices: A preliminary Inquiry, 61 Virginia Law Review 1187, 1228 (1975). The<br />
106
ing about the abortion case, Tushnet sought <strong>to</strong> create standards for substantive due process,<br />
claiming that it was acceptable when the right in question was socially important,<br />
recognized in practice, had close connections <strong>to</strong> constitutional rights, was ordinarily<br />
exercised in legal analysis, and was important in terms of common sense. 376 Alternative<br />
scholarship encouraged flexible legal reasoning that would acknowledge the values and<br />
policies the case concerned. Whereas traditional legal scholarship sought <strong>to</strong> increase the<br />
rationality and neutrality of legal reasoning, alternative legal scholarship sought <strong>to</strong> adapt<br />
the policy and value aspects in<strong>to</strong> terms of a more just society and, whereas the former<br />
was concerned with the flaws in legal reasoning, the latter paid attention <strong>to</strong> the motives<br />
behind the reasoning.<br />
The critical notions entered the constitutional analysis in the various studies. Alternative<br />
constitutional scholarship <strong>to</strong>ok a stand on many modern <strong>to</strong>pics. Some scholars<br />
stressed the obligations of man <strong>to</strong>ward nature, 377 while others noted that the increase in<br />
presidential powers was harmful <strong>to</strong> democracy. 378 Environmentalism began <strong>to</strong> interest<br />
legal scholars in the 1970s, and participa<strong>to</strong>ry democracy was still an important <strong>to</strong>pic.<br />
The ideological elements also became apparent in some of the critical analyses. Commenting<br />
on freedom of expression and commercial interests, C. Edwin Baker argued<br />
that commercial speech should not be constitutionally protected because it was not involved<br />
in the self-realization of the individual that freedom of speech was meant <strong>to</strong> protect<br />
and, furthermore, it coerced people and promoted sel<strong>fi</strong>shness and inequality. 379<br />
Even critical scholars stressed the signi<strong>fi</strong>cance of individualism, but their concept of<br />
individualism differed from the traditional one, and they also emphasized the communitarian<br />
context in which it was pursued. Following the spirit of Marcuse, they argued that<br />
modern individualism was coerced by the economic structures and was therefore not<br />
authentic. Critical scholars thus reconsidered old concepts, such as freedom of expression,<br />
in the changed context so that they could be used in the pursuit of true individual<br />
rights and equality.<br />
The critical constitutional literature of the 1960s and 1970s was closer <strong>to</strong> realism<br />
and progressive liberalism rather than radical. Nevertheless, the connection between<br />
critical legal scholarship and constitutional law was clear. Traditional scholarship was<br />
criticized for its urge <strong>to</strong>ward rationality and neutrality which, the critical scholars insisted,<br />
masked the real motives and impact of the law. Critical scholarship was not simply<br />
destructive but also sought <strong>to</strong> develop alternative doctrines that would promote the valpoint<br />
of the article was <strong>to</strong> show that the information on which the decisions of the Supreme Court were<br />
based was derived from various sources.<br />
376 Mark Tushnet, The Newer Property: Suggestion for the Revival of Substantive Due Process, 1975<br />
Supreme Court Review 261, 277–288.<br />
377 Mark Sagoff, On Preserving the Natural Environment, 84 Yale Law Journal 205–267 (1974); Laurence<br />
H. Tribe, Ways not <strong>to</strong> Think about Plastic Trees: New Foundations for Environmental Law, 83 Yale Law<br />
Journal 1315–1348 (1974).<br />
378 Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Administrative<br />
Law Review 299, 324 (1976).<br />
379 C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa Law Review 1,<br />
3–10, 15–16, 23–25, 35, 54–56 (1976).<br />
107
ues and policies the scholars considered important, and thus it often <strong>to</strong>ok a stand on<br />
controversial contemporary problems. Criticism of constitutional law reflected the critical<br />
thought of the time in various ways and, by the mid-1970s, the elements of the ideology<br />
of constitutional law were obvious in the discourse.<br />
3.1.6 Critical scholarship on criminal law<br />
Criminal law was an important part of legal scholarship in the 1960s and 1970s. This<br />
was largely due <strong>to</strong> the growing crime rates and juvenile delinquency. Aside from the<br />
war on poverty there was a war on crime. 380 In addition, the Supreme Court made some<br />
of its most controversial decisions with respect <strong>to</strong> criminal procedure. 381 Thus, at the<br />
time of social turbulence, rising crime, controversies over criminal policy, and the rise<br />
of alternative scholarship, problems of crime became an interesting <strong>to</strong>pic for academia.<br />
During the 1960s, alternative criminology became popular. The <strong>fi</strong>rst decades of<br />
the century had already witnessed efforts <strong>to</strong> produce sociological criminal law scholarship,<br />
but no fundamental change of paradigm occurred until the 1950s, when the combination<br />
of legal scholarship and social science was once again on the rise. 382 The rise of<br />
“critical criminology”, which occurred with the rise of critical sociology, criticized both<br />
the scholarship and its object, having a critical perspective on crime both as a social and<br />
as a legal phenomenon. 383 Although critical criminology expanded enormously in the<br />
1970s, 384 critical legal scholars remained relatively uninterested in criminal law. 385 Critical<br />
criminal law scholarship, mostly a scholarship of sociology and criminology, focused<br />
more on the functional and procedural aspects of law than on doctrine. In any<br />
event, changes in the scholarship provide a valuable perspective on the development of<br />
the critical thought.<br />
Critical scholarship on crime and criminal law was boosted in the 1960s. The increased<br />
attention <strong>to</strong> the biases of law against the poor was also apparent in criminal law<br />
scholarship. A common notion amongst the alternative scholars was that “in reality the<br />
law regularly works <strong>to</strong> the disadvantage of the already more disadvantaged classes.” 386<br />
380 The national project against crime was called “The Challenge of Crime in a Free <strong>Society</strong>”. The <strong>fi</strong>ndings<br />
of the project were originally published in ten volumes, but selections have been issued in Robert W.<br />
Winslow, Crime in a Free <strong>Society</strong>: Selections from the President’s Commission on Law Enforcement and<br />
Administration of Justice (Belmont, California: Dickenson Publishing Company 1968).<br />
381 Probably the most controversial decision was Miranda v. Arizona, 384 U.S. 436 (1966), which held<br />
that the accused must be informed of his rights if his testimony is <strong>to</strong> be admissible in court. On the criminal<br />
cases and the Warren Court, see, e.g., Horwitz 1997, supra n. 33 at 91–98; Friedman 1993, supra n. 36<br />
at 300–302.<br />
382 Richard Quinney, Introduction: Toward a Sociology of Criminal Law, 1–4, in Richard Quinney (ed.),<br />
Crime and Justice in <strong>Society</strong> (Bos<strong>to</strong>n: Little, Brown and Company 1969), 1–30.<br />
383 Gresham M. Sykes, The Rise of Critical Criminology, 65 Journal of Criminal Law and Criminology<br />
206, 206–210 (1974).<br />
384 Robert M. Bohm, Radical Criminology ─ An Explication, 19 Criminology 565, 565–566 (1982).<br />
385 Nelken 1987, supra n. 322 at 105.<br />
386 Richard D. Schwartz. & Jerome H. Skolnick, Two Studies of Legal Stigma, 10 Social Problems 133,<br />
142 (1962).<br />
108
The scholars noted that poor people were more likely <strong>to</strong> be incarcerated because they<br />
were often unable <strong>to</strong> raise bail, 387 were discriminated in hearings and bail settings, 388<br />
and the defense system was unfavorable <strong>to</strong> them. 389 It was also noted that the sentence<br />
often depended on the race of the accused. 390 Studies on self-reported crime had revealed<br />
that crime is general in all social classes, which directed attention <strong>to</strong> discretion in<br />
the administration of justice, 391 the general notion being that there were various disparities<br />
within the administration of criminal justice, some of which were unjusti<strong>fi</strong>ed. 392<br />
Empirical studies supported the critical opinion by pointing out that the “perception of<br />
unequal treatment [was] the single most important source of popular dissatisfaction with<br />
the American legal system.” 393 The studies reflected the rising importance of social<br />
equality and the rising awareness of the biases of law as well as the fact that empirical<br />
and sociological studies were appearing more frequently. Alternative scholars wanted <strong>to</strong><br />
apply alternative methods in legal research, criticize the system, and participate in political<br />
debates.<br />
The discrepancy between the ideal and the reality of the administration of criminal<br />
justice was the main concern of the critical studies. The critical argument held that<br />
“[t]he reality of sanctioning in the American criminal court, in short, is a far cry from an<br />
idea-typical formal-rational administration of justice in which a determination is<br />
reached by measuring the facts of the case against the sole yardstick of an abstract, general<br />
category of legally proscribed acts.” 394 An empirical study on the impact of the no<strong>to</strong>rious<br />
Miranda decision on the interrogation procedure revealed that in fact the decision<br />
had very little impact. 395 Furthermore, another study pointed out that the psychological<br />
context of the interrogations undermined the effects of simple information on<br />
rights which meant that an advocate was needed <strong>to</strong> make the rights of the suspect effective.<br />
396 Besides discrimination, the researchers sought <strong>to</strong> point out that the rights of the<br />
suspect did not hamper the criminal procedure. Since the structures of the administra-<br />
387 Anne Rankin, The Effect of Pretrial Detention, 39 New York University Law Review 641–655 (1964).<br />
388 Mark Berger, Police Field Citations in New Haven, 1972 Wisconsin Law Review 382–417.<br />
389 Jules B. Gerard, A Preliminary Report on the Defense of Indigents in Missouri, 1964 Washing<strong>to</strong>n<br />
University Law Quarterly 270–332.<br />
390 Henry Allen Bullock, Signi<strong>fi</strong>cance of the Racial Fac<strong>to</strong>rs in the Length of Prison Sentences, 52 Journal<br />
of Criminal Law, Criminology and Police Science 411–417 (1961).<br />
391 Winslow 1968, supra n. 380 at 106–107; David F. Greenberg, Marxist Criminology, 165–166 in Bertell<br />
Ollman & Edward Vernoff (eds.), The Left Academy: Marxist Scholarship on American Campuses,<br />
Vol. III (New York: Praeger 1986), 164–207. See also Wayne R. La Fave, Police Discretion, in Quinney<br />
(ed.) 1969, supra n. 382 at 109–125. In general on the “discovery of hidden crime” and its consequences,<br />
see Janne Kivivuori, Discovery of Hidden Crime: Self-Report Delinquency Surveys in Criminal Policy<br />
Context (Oxford: Oxford University Press 2011), 39–122.<br />
392 Stuart S. Nagel, Disparities in Criminal Procedure, 14 UCLA Law Review 1272, 1296 (1967).<br />
393 Sarat 1977, supra n. 162 at 434.<br />
394 Balbus 1973, supra n. 275 at 22–23.<br />
395 Michael Wald, Richard Ayres, David W. Hess, Mark Schantz, Charles H. Whitebread II, Interrogations<br />
in New Haven: The Impact of Miranda, 76 Yale Law Journal 1519, 1523, 1536, 1539, 1550–1556,<br />
1565–1567, 1577–1578, 1613–1616 (1967).<br />
396 John Grif<strong>fi</strong>ths & Richard D. Ayres, A Postscript <strong>to</strong> the Miranda Project: Interrogations of Draft Protesters,<br />
77 Yale Law Journal 300, 315–319 (1967).<br />
109
tion of criminal justice caused problems that were dif<strong>fi</strong>cult <strong>to</strong> solve on the surface level,<br />
the studies and further measures were needed.<br />
The functions of punishments were also analyzed, since the fundamentals of the<br />
criminal justice system were concerned. Scholars studying the impact of punishment<br />
argued that the stigmatizing effect of legal sanctions varied according <strong>to</strong> the social status<br />
of the defendant. 397 They also noted that the deterrent effect of punishment varied<br />
according <strong>to</strong> the type of crime and offender, but the criminal system imposed the most<br />
severe punishments on those least likely <strong>to</strong> be deterred while punishing those who could<br />
be deterred more leniently. 398 Thus, the whole basis of the criminal system was placed<br />
under scrutiny, general deterrence often being an important <strong>to</strong>pic. 399 A critical notion<br />
was that the direct deterrent effect of legal sanctions was modest, and the indirect effect<br />
through informal control mechanisms was much stronger. Therefore “the imposition of<br />
severe sanctions is a visible sign of action in response <strong>to</strong> failure in the system of social<br />
control.” 400 Critical studies revealed that severe sanctions did not have decisive effects<br />
in preventing crime, social fac<strong>to</strong>rs being more important in crime control. Thus, the alternative<br />
scholars could argue against harsh punishment and for a more flexible system<br />
of criminal sanctions.<br />
Studies on the deterrent effects of sanctions were frequent since they illuminated<br />
the functioning of the system. There were studies on the deterrent effects of the severity<br />
of sanctions in general 401 and in particular on such as parking violations 402 and tax<br />
laws. 403 Whereas the conservative view maintained the faith in the deterrent effect of<br />
capital punishment, 404 the alternative view denied its practicability, morality, and ef<strong>fi</strong>cacy<br />
and argued for abolishing it. 405 The question was not simply about general deterrence,<br />
but rather its conformity <strong>to</strong> social policies and its relation <strong>to</strong> other forms of social<br />
397 Schwartz & Skolnick 1962, supra n. 386 at 133–134, 136–137, 139–142.<br />
398 William J. Chambliss, Types of Deviance and the Effectiveness of Legal Sanctions, 1967 Wisconsin<br />
Law Review 703, 712–716; Marc Ancel, Some Thoughts on the Problem of Deterrence, 378, in Marvin<br />
E. Wolfgang (ed.), Crime and Culture: Essays in the Honor of Thorsten Sellin (New York: John Wiley &<br />
Sons 1968), 375–385.<br />
399 One of the most prominent spokesmen of the time for the cause was the Norwegian Johs Andenæs,<br />
whose writings were also influential at the time in the United States. (See Johs. Andenæs, The General<br />
Preventive Effects of Punishment, 114 University of Pennsylvania Law Review 949–983 (1966), and see,<br />
e.g., Chambliss 1967, supra n. 398 at. n. 1.) As will be seen in the following chapters, Scandinavian criminal<br />
law scholars often endorsed general deterrence whereas their American colleagues were critical of it.<br />
This was mostly due <strong>to</strong> the differing conceptions of deterrence, since the main themes in the criticism of<br />
punishment were basically the same in the United States and Scandinavia when analyzed in detail.<br />
400 Richard G. Salem & William J. Bowers, Severity of Formal Sanctions as a Deterrent <strong>to</strong> Deviant Behavior,<br />
5 Law & <strong>Society</strong> Review 21, 21–23, 26–28, 33–37, quotation at 37, footnote omitted.<br />
401 Charles R. Tittle, Crime Rates and Legal Sanctions, 16 Social Problems 409–423 (1969).<br />
402 William J. Chambliss, The Deterrent Influence of Punishment, 12 Crime and Delinquency 70–75<br />
(1966).<br />
403 Richard D. Schwartz & Sonya Orleans, On Legal Sanctions, 34 University of Chicago Law Review<br />
274–300 (1967).<br />
404 Ernest Van Den Haag, On Deterrence and the Death Penalty, 60 Journal of Criminal Law, Criminology<br />
and Police Science 141–147 (1969).<br />
405 Hugo Adam Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal of Criminal<br />
Law, Criminology and Police Science 539–548 (1970).<br />
110
control. A conservative view was more willing <strong>to</strong> uphold severe punishment given the<br />
faith of their effect on deterring people and decreasing crime, whereas the reformist<br />
view approached the problem from a different perspective and sought <strong>to</strong> <strong>fi</strong>nd alternative<br />
ways because crime was a social problem in need of social responses. The general trend<br />
of alternative scholarship was <strong>to</strong> move away from a legal point of view and <strong>to</strong>ward a<br />
more social approach <strong>to</strong> punishment.<br />
The criticism of the criminal justice system reflected the rising critical consciousness<br />
<strong>to</strong>wards law and society. On some occasions, the faith in the modern criminal system<br />
was very low. A psychiatrist noted that law was not able <strong>to</strong> encourage social order<br />
or morals, and faith in criminal law in these respects was a “cynical disregard of the<br />
individual which has so frequently permitted the of<strong>fi</strong>cial institutions of the administration<br />
of criminal justice <strong>to</strong> become more immoral, more irresponsible, and more unjust<br />
than any single criminal would dare <strong>to</strong> be.” 406 The lack of faith in the criminal system<br />
followed in part from the notion that the traditional system and scholarship were based<br />
on false assumptions. Al Katz, for instance, noted that the question of punishment ought<br />
not <strong>to</strong> be what the criminal sanction is for, but rather for whom the criminal sanction is.<br />
In this sense, “the existing structure of the criminal law is useless, and… only a structure<br />
consistent with a rehabilitative model makes any sense.” 407 The felt crisis of law<br />
was evident, and the legal scholars who noted this began <strong>to</strong> develop theories for restructuring<br />
the system <strong>to</strong> <strong>fi</strong>t the modern needs.<br />
Al Katz was one of the critical legal scholars who contemplated on the theories of<br />
completely remodeling the criminal law. To him, the traditional system of criminal justice<br />
was logically inconsistent and socially inef<strong>fi</strong>cient and lacked a legitimate basis for<br />
punishment. Therefore, criminal law was <strong>to</strong> be based on the concept of dangerousness,<br />
meaning a “direct threat <strong>to</strong> the person or property of others”, and the function of punishment<br />
was <strong>to</strong> eliminate potentially dangerous behavior in the future, 408 the crucial<br />
point being that criminal law ought <strong>to</strong> promote social solidarity. 409 The traditional system<br />
excited feelings of helplessness, rejection, solitude, and hostility, but <strong>to</strong> be socially<br />
appropriate and legitimate, the criminal system ought <strong>to</strong> excite feelings of solidarity and<br />
rehabilitate the wrong-doer back in<strong>to</strong> society. 410 Katz’s theory was a comprehensive,<br />
critical theory of law, including the aspects of fundamental, conceptual criticism and<br />
social reformism. He began with the notion that the traditional law was inconsistent and<br />
without a legitimate basis because it could not serve the functions it was supposed <strong>to</strong>,<br />
and then he fostered liberal social values by encouraging rehabilitation and social soli-<br />
406 Bernard L. Diamond, Book Review [The Insanity Defense], 56 California Law Review 920, 922–923<br />
(1968), quotation at 922.<br />
407 Al Katz, Book Review [The Limits of the Criminal Sanction], 117 University of Pennsylvania Law<br />
Review 640, 640–641 (1969), quotation at 641.<br />
408 Al Katz, Dangerousness: A Theoretical Reconstruction of the Criminal Law Part I, 19 Buffalo Law<br />
Review 1–33 (1969), quotation at 22. (See the de<strong>fi</strong>nition of dangerousness in id. at 21–22.)<br />
409 Al Katz, Dangerousness: A Theoretical Reconstruction of the Criminal Law Part II, 21 Buffalo Law<br />
Review 603, 611 (1972).<br />
410 Katz 1972, supra n. 409 at 611–613, 619–625, 639–640; Katz 1969, supra n. 408 at 17–20; Katz 1969,<br />
supra n. 407 at 643–644.<br />
111
darity as the main purposes of criminal law. The reconstruction of criminal law proceeded<br />
from conceptual criticism <strong>to</strong> social politics.<br />
By the end of the 1960s, criminal law theorists were also adapting <strong>to</strong> the critical<br />
thought, in which context the idea of <strong>to</strong>tal criticism appeared. John Grif<strong>fi</strong>ths also attacked<br />
the traditional criminal law scholarship. He did not simply criticize the law or<br />
scholarship in general, but also Hebert Packer in particular, a legal scholar who represented<br />
traditional scholarship. 411 Grif<strong>fi</strong>ths argued that both law and traditional scholarship<br />
were constrained by the prevailing ideology. It did not matter whether the criminal<br />
process was “modeled” according <strong>to</strong> crime control or due process; it was always a battle<br />
between the state and the offender and it always promoted the ideology of modern society<br />
and degraded the defendant. Therefore, he argued, criminal process should be combined<br />
with the purpose of criminal law so that individual needs could be taken in<strong>to</strong> account.<br />
The “fundamental change in criminal procedure must begin with the development<br />
of ideological self-consciousness and speculation about the possibilities of ideological<br />
change.” 412 Grif<strong>fi</strong>ths sought <strong>to</strong> demonstrate that the connection between law and<br />
the prevailing social ideology limited the opportunities for change and dis<strong>to</strong>rted legal<br />
ideals; differences in process that appeared <strong>to</strong> be fundamental turned out <strong>to</strong> be minimal<br />
when perceived critically, since different models of process pursued the same ideological<br />
goals. The element of ideology was important for the critical legal scholars because<br />
they opined that traditional scholars could not go beyond the contemporary society, and<br />
thus merely maintained the existing circumstances.<br />
The pursuit of an alternative ideology was evident in Grif<strong>fi</strong>ths’ harsh criticism.<br />
The legal profession in general appreciated Packer’s scholarship and its realism, 413 and<br />
his book “received the triennial Coif Award, the highest honor that can be bes<strong>to</strong>wed on<br />
a work of legal scholarship, in 1970.” 414 It was thus no futile scholarship which Grif<strong>fi</strong>ths<br />
attacked, although Packer himself wrote that his book was “somewhat oldfashioned.”<br />
415 Grif<strong>fi</strong>ths, nonetheless, argued that because of its logical inconsistency,<br />
lack of intelligence and sophistication, conceptual ambiguity, and unsystematic approach<br />
the book was “very, very bad indeed”. 416 Furthermore, argued Grif<strong>fi</strong>ths, Packer<br />
did not even try <strong>to</strong> understand the problems of criminal law outside the traditional mode<br />
and proceeded in the lawyer’s fashion, “as if anthropology and sociology, political theo-<br />
411 On Packer’s scholarship, see Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, California:<br />
Stanford University Press 1968).<br />
412 John Grif<strong>fi</strong>ths, Ideology in Criminal Procedure, or, A Third “Model” of the Criminal Process, 79 Yale<br />
Law Journal 359–417 (1970), quotation at 417.<br />
413 Kalman 2005, supra n. 204 at 251.<br />
414<br />
Memorial Resolution: Herbert L. Packer (1925–1972),<br />
http://histsoc.stanford.edu/pdfmem/PackerH.pdf, (last visited 26.6.2012). Packer died in 1972 at the age<br />
of 47.<br />
415 Packer 1968, supra n. 411 at 5. The book nevertheless reflected the spirit of legal realism, since it drew<br />
“on law, on philosophy, on economics, and on some of the behavioral sciences, but it [did] not pretend <strong>to</strong><br />
be a technical treatise about any of them.” (Id.)<br />
416 John Grif<strong>fi</strong>ths, The Limits of Criminal Law Scholarship, 79 Yale Law Journal 1388, 1388 (1970).<br />
There are hardly any pages in the review in which criticism does not appear, but one could mention id. at<br />
1394–1397, 1406, 1414–1417, 1470–1473.<br />
112
y and psychology, even his<strong>to</strong>ry and philosophy and theology, barely existed.” 417 Although<br />
Grif<strong>fi</strong>ths has later expressed a dislike of being associated with the critical legal<br />
studies movement, 418 his articles did represent critical thought. He criticized the ideological<br />
basis of law and legal scholarship, and criticized traditional scholarship for neglecting<br />
social realities and furthering only the lawyer’s perspective on the issue. Grif<strong>fi</strong>ths’<br />
<strong>fi</strong>erce critique was after a <strong>to</strong>tal overhaul of the criminal system and criminal<br />
scholarship.<br />
Moreover, the question was also both about the methods and the goals. Packer was<br />
a supporter of general deterrence and, although he did encourage decriminalization, his<br />
views on social and criminal policy were more conservative than those of Grif<strong>fi</strong>ths, who<br />
also endorsed rehabilitation as the basis of criminal sanction. 419 Critical scholars considered<br />
traditional scholarship as conservative. Critical scholars, if they <strong>to</strong>ok a stand on<br />
values and policies, attempted <strong>to</strong> promote social reform and liberal politics. They saw<br />
that the formalist conceptualism of traditional scholarship prevented any review of the<br />
problems in modern society and in their individual circumstances.<br />
In any event, scholars of criminal law reflected the critical spirit in many ways.<br />
Both Katz and Grif<strong>fi</strong>ths criticized traditional law and their scholarship constructed fundamentally<br />
new approaches. They argued that the contemporary system was fundamentally<br />
flawed, unjust, and inef<strong>fi</strong>cient and wanted <strong>to</strong> elaborate a system of criminal law<br />
that would promote liberal values. Whereas Katz wrote about criminal punishment,<br />
Grif<strong>fi</strong>ths wrote about the process, and whereas Katz began from the inconsistency of<br />
law, Grif<strong>fi</strong>ths began from law’s ideological connections. In the end, they focused on the<br />
basis of the system, which was a general concern of critical scholarship.<br />
The focus on the basis of the criminal system became evident in Marxist criminology.<br />
Marxist theory was revived in criminal studies in the late 1960s and early 1970s. 420<br />
In his study on the legal repression of the ghet<strong>to</strong> revolts of the 1960s, Isaac Balbus developed<br />
a critical theory of criminal repression. According <strong>to</strong> him, the dilemma of liberal<br />
law was the conflict between repression and legalism; the state had <strong>to</strong> frustrate as<br />
much violence as possible but at the same time minimize the revolutionary potential of<br />
the violent behavior. Therefore, the criminal system depoliticized and delegitimized<br />
collective violence and made riots appear as a set of individual crimes. This then influenced<br />
the awareness of the public and the rioters. 421 The impact of Marxist theory in<br />
criminal law directed attention <strong>to</strong>wards the notion that law was a major contribu<strong>to</strong>r <strong>to</strong><br />
the preservation of ideology, not simply a reflection of it. In the critical sense, repres-<br />
417 Id. at 1391. (Footnote omitted.)<br />
418 Kalman 2005, supra n. 204 at 250–251. Grif<strong>fi</strong>ths was one of the six young Yale faculty members not<br />
receiving tenure in the early 1970s, and his harsh criticism of Packer probably influenced the decision on<br />
his account. (Id. at 253–254.) This is not meant <strong>to</strong> imply that Grif<strong>fi</strong>ths was a pro<strong>to</strong>-CLS scholar, but his<br />
critical approach nevertheless recalled the critical thought of the 1970s. Thus, he was a critical legal<br />
scholar of the 1970s even if he should not be identi<strong>fi</strong>ed with CLS.<br />
419 Grif<strong>fi</strong>ths 1970, supra n. 416 at 1417–1432, 1466–1470; Packer 1968, supra n. 411 at 35–102, 296–363.<br />
420 Ian Taylor, Paul Wal<strong>to</strong>n, Jock Young, The New Criminology: For a Social Theory of Deviance (London:<br />
Routledge & Kegan Paul 1973), 221.<br />
421 Balbus 1973, supra n. 275 at 2–4, 12–15.<br />
113
sion had <strong>to</strong> seem legitimate, and the legal system was a media<strong>to</strong>r between law and society.<br />
The Marxist turn was apparent in criminology and the social theory of crime. Critical<br />
theory held that criminal law protected certain interests and repressed others, and<br />
this conflict was a pervasive fac<strong>to</strong>r in the administration of criminal justice. 422 Crime<br />
was a social construct reflecting the power relations, 423 and the task of scholarship was<br />
<strong>to</strong> analyze the functions of law in this regard. 424 Critical scholarship gained more signi<strong>fi</strong>cance<br />
at the turn of the decade, 425 and critical criminology and theory of crime were<br />
major contribu<strong>to</strong>rs <strong>to</strong> critical thought in the early 1970s. Criminal law scholarship had<br />
long analyzed discretion and discrimination in law, but there was not much systematic<br />
critical theory of criminal law. Criminologists then accepted the challenge.<br />
Politics was at the center of the critical theory in viewing crime as a social construct<br />
and as an expression of conflicts. For the critical scholars, law-making represented<br />
“the translation of speci<strong>fi</strong>c group interests in<strong>to</strong> public policy”, and the administration<br />
of justice was “by its very nature political.” 426 Consciousness upheld the myths that law<br />
represented the values of the society and was neutral, 427 but the critical theories challenged<br />
the notion of objective reality and thus sought <strong>to</strong> force people <strong>to</strong> “consider libertarian<br />
ideals.” 428 At the turn <strong>to</strong>ward a more radical theory of crime, scholars began <strong>to</strong><br />
concentrate more on the way crime was constructed. Since both the contemporary form<br />
of society and the conception of crime were created in the course of his<strong>to</strong>ry, the critics<br />
endorsed an analysis of the fundamental dynamics of the concept of crime in society.<br />
The turn of the decade extended the basis of critical scholarship on crime. Many of<br />
the characteristics of the changes reflected the turn in critical thought <strong>to</strong>wards a more<br />
comprehensive one. Radical Marxism entered criminology in the 1970s. 429 Critical theorists<br />
saw that the need for a radical theory was great because the control over crime<br />
was tighter and social thought had become more conservative. 430 The purpose of radical<br />
criminology was “one of demysti<strong>fi</strong>cation, the removal of the myths ─ the false con-<br />
422 Quinney 1969, supra n. 382 at 1–4, 8–9, 25–30.<br />
423 Richard Quinney, The Social Reality of Crime (Bos<strong>to</strong>n: Little, Brown and Company 1970), 15–25.<br />
424 See, Chambliss (ed.) 1969, supra n. 326 at 5–11, 84–98, 360–378.<br />
425 Chambliss (ed.) 1969, supra n. 326; Quinney (ed.) 1969, supra n. 382; Quinney 1970, supra n. 423;<br />
William J. Chambliss & Robert B. Seidman, Law, Order, and Power (Reading, Massachusetts: Addison-<br />
Wesley Publishing Company 1971). The <strong>fi</strong>rst two are collections of articles representing the <strong>fi</strong>eld. The<br />
last two are general introductions <strong>to</strong> the theory. Although from a different theoretical perspective, both<br />
books pointed out that society consisted of conflicting interests, law often promoted the interests of those<br />
in power and was thus not value-free, justice was discretionary, and, furthermore, the administration of<br />
justice was biased <strong>to</strong>ward the values of the powerful classes.<br />
426 Quinney 1970, supra n. 423 at 43, 138.<br />
427 Chambliss & Seidman 1971, supra n. 425 at 502.<br />
428 Quinney 1970, supra n. 423 at v.<br />
429 Greenberg 1986, supra n. 391 at 167–171.<br />
430 Harvey A. Silverglate, The 1970s: A Decade of Repression? 127–128, 136–146, in Richard Quinney<br />
(ed.), Criminal Justice in America: A Critical Understanding (Bos<strong>to</strong>n: Little, Brown and Company 1974),<br />
127–146.<br />
114
sciousness ─ created by the of<strong>fi</strong>cial reality.” 431 The conflict approach perceived crime<br />
as a result of conflicting social interests and law as the mediating fac<strong>to</strong>r 432 but radical<br />
criminology saw law as a <strong>to</strong>ol of oppression which contributed <strong>to</strong> the preservation of the<br />
dominant ideology. 433 Critical theorists argued that modern consciousness rejected thoroughgoing<br />
reforms as u<strong>to</strong>pian, 434 and the “lack of a his<strong>to</strong>rical and dialectical perspective”<br />
had weakened the critical potential of the scholarship. 435 Marxist theory was needed<br />
<strong>to</strong> “break out of the ideology and conditions of the age.” 436 By the mid-1970s, critical<br />
criminology had an established position. 437 Neo-Marxism had become an accepted albeit<br />
marginal methodology in academia, and alternative scholars were applying various<br />
theories in radical criticism of the society.<br />
The radical turn in the theory of crime followed the general trends in critical<br />
thought. The purpose of the critical criminal theory was <strong>to</strong> analyze the consciousness of<br />
modern society and <strong>to</strong> point out the fac<strong>to</strong>rs that created and maintained false consciousness,<br />
and that the law oppressed the poor and the minorities and criminal law supported<br />
these ends. As society was turning in a more conservative direction, critical scholars<br />
became still more radical. The 1960s had laid the foundation for radical scholarship and<br />
the 1970s was a time for it <strong>to</strong> enter the academic <strong>fi</strong>eld. This turn occurred in various<br />
disciplines, reflecting the frustration of the radical intellectuals with the politics and the<br />
university, both of which had failed <strong>to</strong> realize the dreams of a better future that had arisen<br />
during the turbulence of the 1960s. In addition, critical scholars noted the fact that<br />
the attack on the prevailing paradigm required more weighty means than had been used<br />
earlier. Now the <strong>fi</strong>eld was ready for such an attack and there were ambitious scholars<br />
taking the task on.<br />
Research also participated in the resolution of contemporary problems. For instance,<br />
studies pointed out that crime reflected relative poverty, which meant that fundamental<br />
social changes were needed <strong>to</strong> combat crime. 438 Furthermore, it was argued<br />
that criminal concepts should be replaced with human-rights oriented concepts, and vio-<br />
431 Richard Quinney, A Critical Theory of Criminal Law, 16, in Quinney (ed.) 1974, supra n. 430 at 1–25.<br />
See also Anthony Platt, The Triumph of Benevolence: The Origins of the Juvenile Justice System in the<br />
United States, 362, in Quinney (ed.) 1974, supra n. 430 at 356–389.<br />
432 William J. Chambliss, Functional and Conflict Theories of Crime: The Heritage of Emile Durkheim<br />
and Karl Marx, 7, in William J. Chambliss and Mil<strong>to</strong>n Mankoff (eds.), Whose Law? What Order? A Conflict<br />
Approach <strong>to</strong> Criminology (New York: John Wiley & Sons 1976), 1–28.<br />
433 Alan Wolfe, Political Repression and the Liberal Democratic State, 50–53, in Quinney (ed.) 1974,<br />
supra n. 430 at 49–61; Richard Quinney, Crime Control in Capitalist <strong>Society</strong>: A Critical Philosophy of<br />
Legal Order, 192–193, in Ian Taylor, Paul Wal<strong>to</strong>n, Jock Young, Critical Criminology (London:<br />
Routledge & Kegan Paul 1975), 181–202.<br />
434 Platt 1974, supra n. 431 at 359.<br />
435 Anthony Platt, Prospects for a Radical Criminology in the USA, 98, in Taylor; Wal<strong>to</strong>n; Young (eds.)<br />
1975, supra n. 433 at 95–112.<br />
436 Quinney 1975, supra n. 433 at 192.<br />
437 See Quinney (ed.) 1974, supra n. 430; Chambliss and Mankoff (eds.) 1976, supra n. 432; Taylor; Wal<strong>to</strong>n;<br />
Young (eds.) 1975, supra n. 433. The last-mentioned gathered American and British critical criminology<br />
within the same covers. See also Taylor; Wal<strong>to</strong>n; Young 1973, supra n. 420, which is a general<br />
introduction <strong>to</strong> alternative criminology.<br />
438 C. Ronald Chester, Perceived Relative Deprivation as a Cause of Property Crime, 22 Crime & Delinquency<br />
17, 23–24, 30 (1976).<br />
115
lations of economic, sexual, and racial equality should also be considered as crimes. 439<br />
Poverty was a pressing problem despite the efforts of the government. Critical studies<br />
thus sought <strong>to</strong> point out the need <strong>to</strong> reform the structures of society in the <strong>fi</strong>ght against<br />
crime. Another concern was the crimes that occurred behind the of<strong>fi</strong>cial stage, namely,<br />
crimes against equality. Scholars attempted <strong>to</strong> point out the arbitrariness of the concept<br />
of crime that focused simply on the traditional crimes but ignored the modern crimes<br />
against equality. As the struggle against inequality intensi<strong>fi</strong>ed in the 1970s, scholars<br />
also began <strong>to</strong> stress equality in their theories.<br />
Criminal law provides an interesting perspective on the development of critical<br />
thought in legal scholarship. Critical scholarship on criminal law began <strong>to</strong> flourish in<br />
the 1960s. Studies on the reality of crime and the administration of criminal justice focused<br />
on law in action and sought <strong>to</strong> point out that the reality of criminal law was not<br />
the ideal of neutrality, equality, rationality, and ef<strong>fi</strong>ciency. The aim of these studies was<br />
<strong>to</strong> reveal that the social inequalities were reflected in law which then contributed <strong>to</strong> the<br />
preservation of the problems. As in all critical scholarship, studies on criminal law<br />
sought <strong>to</strong> demonstrate how law reflected social structures and ideology, and the critical<br />
scholars argued that law was not an ef<strong>fi</strong>cient way <strong>to</strong> change society without fundamental<br />
reform. Although radical criticism was mostly by criminologists, the scholarship of<br />
Katz and Grif<strong>fi</strong>ths shows that criminal law scholars also shared the critical consciousness.<br />
They focused on the illogical and irrational aspects of criminal law and elaborated<br />
theories <strong>to</strong> transform the system of criminal justice <strong>to</strong> meet the needs of modern society.<br />
The radical criminology following the Marxist turn of the 1970s reflected the more nihilist<br />
and destructive nature of the radical criticism of the 1970s, whereas earlier critical<br />
studies and theories on crime, including those of Grif<strong>fi</strong>ths and Katz, had been more constructive.<br />
Criticism of criminal policy and criminal law scholarship followed the same pattern<br />
as the development of critical legal thought in general. Early forms of alternative<br />
scholarship focused on the gap between law in books and law in action and studied law<br />
in context in order <strong>to</strong> point out the arbitrary and discrimina<strong>to</strong>ry nature of criminal law.<br />
Critical theories of the early 1970s tried <strong>to</strong> restructure both the law and the scholarship,<br />
and the radical criticism focused on the fundamental basis of society. The basic premises<br />
of critical thought were present in criminal law even if it was not at the heart of critical<br />
legal scholarship. 440 Nevertheless, by the mid-1970s, critical legal scholarship had<br />
developed <strong>to</strong> the point where it was about <strong>to</strong> become a considerable part of the academic<br />
legal profession.<br />
439 Herman Schwendinger and Julia Schwendinger, Defenders of Order or Guardians of Human Rights?<br />
132–138, in Taylor; Wal<strong>to</strong>n; Young (eds.) 1975, supra n. 433 at 113–146; Platt 1975, supra n. 435 at 103.<br />
440 The question of whether legal scholars were interested in criminal law depends on the de<strong>fi</strong>nitions.<br />
Scholars who later became associated with CLS did not develop much critical criminal law theory. However,<br />
as we saw, problems of crime and criminal law were of interest <strong>to</strong> many scholars advocating alternative<br />
methods and theories, and the radical criminology of the 1970s was indeed a critical theory.<br />
116
3.2 The creation of CLS, 1977–1980<br />
3.2.1 The evolution of critical thought: The Conference on Critical Legal Studies,<br />
1977<br />
Critical legal scholarship developed in turbulent times. Sociological studies on law had<br />
continued since the realist period on a small scale and intensi<strong>fi</strong>ed in the 1960s. At the<br />
same time, social and political turmoil and the student protests also increased. People<br />
studying law in the late sixties grew up in an atmosphere in which a large part of the<br />
student population was raging and realist scholarship was increasing, but the dominant<br />
jurisprudence remained relatively traditional. Social inequalities persisted and even escalated,<br />
and the war in Vietnam ravaged the world and expressed the imperialist nature<br />
of the nation. In addition, the scholarly tradition was expanding and covering new areas<br />
of research as well as new methodologies. Critical legal scholarship was about <strong>to</strong> bloom<br />
by the mid-1970s. The 1960s laid the ideological foundation of CLS, and its theoretical<br />
basis was elaborated in the 1970s.<br />
The experiences of the 1960s had considerable effects on the young and even older<br />
jurists and law students, who eventually began <strong>to</strong> seek a career outside the traditional<br />
path. As David Kairys, a civil rights lawyer of the 1970s, wrote in 1978 in explaining<br />
his motives for becoming a critical lawyer and a scholar: “[t]he ability of our leaders<br />
and the society as a whole <strong>to</strong> justify or accept extreme poverty in the midst of extreme<br />
affluence, racism and the slaughter and terror we visited on the peoples of Indochina led<br />
me <strong>to</strong> seek an explanation and understanding of our society that goes beyond established<br />
thinking, which could explain neither what our society was doing nor why it was<br />
so dif<strong>fi</strong>cult <strong>to</strong> change.” 441 Reasons may vary depending on the scholar in question, but<br />
ultimately it was the complete disappointment in the established order and the law that<br />
drove scholars <strong>to</strong> seek alternatives. The dominant consciousness was seen as a legitimizing<br />
ideology for the status quo, and this notion forced these scholars <strong>to</strong> go beyond<br />
the traditional concepts. In a sense, critical legal studies consisted of scholars who<br />
shared the radical views of the 1960s because during that decade they realized or were<br />
convinced that there was something very wrong with the society and the law had something<br />
<strong>to</strong> do with it.<br />
The 1970s was a complicated decade for academia. In general, it marked a step in<br />
a more conservative direction. Student radicalism and the New Left waned, law and<br />
economics became a powerful paradigm, and the conservative student bloc became<br />
stronger. 442 In 1978, Harvard Journal of Law and Public Policy was founded “<strong>to</strong> provide<br />
a forum for alternatives <strong>to</strong> the liberal establishment law review perspectives.” 443<br />
441 David Kairys, Book Review [Law and the Rise of Capitalism], 126 University of Pennsylvania Law<br />
Review 930, n. 38 (1978). See http://www.law.temple.edu/Pages/Faculty/N_Faculty_Kairys_Main.aspx<br />
(last visited 27.5.2013) for a pro<strong>fi</strong>le of Kairys.<br />
442 Kalman 1996, supra n. 260 at 77–84.<br />
443 E. Spencer Abraham & Steven J. Eberhard, Preface, 1 Harvard Journal of Law and Public Policy vii,<br />
vii (1978).<br />
117
On the other hand, Marxist theory was revised, 444 and emerged as a theory in various<br />
academic disciplines. 445 Critical legal studies (CLS) grew out of the conflict between<br />
the fading radicalism of the 1960s and the conservative counter-criticism of the 1970s.<br />
In many respects, it was a synthesis of the critical and radical thought of the 1960s<br />
combined with the revision of Marxism and the antagonist spirit of the 1970s.<br />
CLS has often been linked <strong>to</strong> the radicalism of the 1960s, 446 although Mark Tushnet<br />
has emphasized the importance of the 1950s. 447 Both of these matter because scholars<br />
built their identity in different times and for different reasons. In general, however,<br />
the 1960s was the formative period because it was then that the critical scholars entered<br />
the legal profession from which they later felt alienated. During the decade, the wouldbe<br />
critical scholars matured in<strong>to</strong> early adulthood and adopted their critical attitude <strong>to</strong>ward<br />
society, law, academia, and scholarship. Critical scholars built their scholarly<br />
identity during the turbulence of the 1960s, and they built their professional identity<br />
during the more conservative 1970s and within the academic controversies.<br />
In the wake of the radical 1960s, there were many scholars yearning for a critical<br />
legal scholarship but the academic world had become a dif<strong>fi</strong>cult place for alternative<br />
traditions. Law and society was an alternative establishment, but many critical scholars<br />
were displeased with it because of its ties with the tradition. 448 In the early 1970s, then,<br />
radical scholars sometimes had dif<strong>fi</strong>culty in <strong>fi</strong>nding a position in the university. 449 Critical<br />
legal thought thus grew in an atmosphere where it was dif<strong>fi</strong>cult <strong>to</strong> <strong>fi</strong>nd a place. But it<br />
grew nonetheless, and “[b]y 1977, there existed in the American law schools a small but<br />
signi<strong>fi</strong>cant group of tenured professors who identi<strong>fi</strong>ed with the political left but who did<br />
not align themselves with the law and society tradition.” 450 Various fac<strong>to</strong>rs had contributed<br />
<strong>to</strong> the evolution of critical legal scholarship, but in the late 1970s it had reached the<br />
point where it felt alienated from many of its influences but where there was also a signi<strong>fi</strong>cant<br />
amount literature that could meet the needs of the critical scholar.<br />
Critical legal scholarship had expanded, but it was still fragmented and incoherent<br />
and without a forum of intellectual exchange. Thus, a need arose <strong>to</strong> bring the scholars<br />
with critical inclinations <strong>to</strong>gether <strong>to</strong> discuss critical scholarship. The <strong>fi</strong>rst conference on<br />
critical legal studies was held at the University of Wisconsin law school in May, 1977,<br />
gathering young critical legal scholars, law and society scholars, and legal scholars with<br />
realist or leftist perspectives. The organizing committee of the conference consisted of<br />
Richard Abel (b. 1941), Thomas Heller (b. 1944), Mor<strong>to</strong>n Horwitz (b. 1938), Duncan<br />
Kennedy (b. 1941), Stewart Macaulay (b. 1931), Rand Rosenblatt (b. 1945), David<br />
444 See, e.g., Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge: Cambridge<br />
University Press 1968).<br />
445 In general, see Ollman & Vernoff (eds.) 1982, supra n. 40.<br />
446 Binder 1987, supra n. 207 at 13–25.<br />
447 Tushnet 1991, supra n. 258 at 1534–1535.<br />
448 White 1987, supra n. 143 at 832–835.<br />
449 Tushnet 1991, supra n. 258 at 1530–1534.<br />
450 Duxbury 1995, supra n. 42 at 446.<br />
118
Trubek (b. 1935), Mark Tushnet (b. 1945), and Rober<strong>to</strong> Unger (b. 1947). 451 Obviously,<br />
most of them were active in alternative and critical legal scholarship during the years<br />
before the conference. Abel and Trubek participated in law and development and later<br />
in law and society scholarship, Macaulay was a law and society scholar, Kennedy and<br />
Unger were well-known critics of legal reasoning, Horwitz was known for his critical<br />
legal his<strong>to</strong>ry, as was Tushnet, who had also written about constitutional law.<br />
Although CLS was a combination of scholars with diversi<strong>fi</strong>ed backgrounds, they<br />
all shared sympathy for the radical left, 452 and most of the participants at the conference<br />
were in some kind of connection with each other. 453 From the beginning, CLS was a<br />
gathering of scholars sharing a similar world view, albeit differing on methods and theories.<br />
As Mark Tushnet writes, more than a movement, critical legal studies was “a political<br />
location for a group of people on the Left who share[d] the project of supporting<br />
and extending the domain in the Left in the legal academy.” 454 At <strong>fi</strong>rst it was probably<br />
more a gathering of scholars discussing similar intellectual interests, but it later evolved<br />
more in<strong>to</strong> a political location.<br />
The radical element of CLS was evident in the diversity of the conference. The<br />
people of the older law and society branch especially were not radicals like the younger<br />
critical scholars, which came <strong>to</strong> mark the split between the alternative and the critical<br />
legal scholarship. The conference had a sociological approach focusing on the gap between<br />
law in books and law in action, an ideological approach focusing on the indeterminacy<br />
and inconsistency of law, and a Marxist approach. Many of the critical scholars<br />
disliked empirical social science, however. 455 The conference continued many of the<br />
preceding forms of critical scholarship but also departed from them. 456 At the foundation<br />
of the conference, critical legal scholarship was moving in a more radical direction,<br />
abandoning empiricism and endorsing an analysis of ideology and consciousness. This<br />
move was apparent in the critical legal literature of the early 1970s and was strengthened<br />
as the decade approached its end.<br />
The evolution of CLS was closely connected <strong>to</strong> the radicalism and critical theories<br />
of the 1960s that were reflected in the rise of the Marxist academia in the 1970s. As<br />
CLS scholars have noted, “[t]he work of the Critical Legal studies Conference is closely<br />
allied with the neo-Marxist social theory that has gained increasing influence in the<br />
451 The letter of invitation <strong>to</strong> the conference on critical legal studies, reprinted in Lizard, Vol. 1 page 7,<br />
available at http://thecritui.com/wp-content/uploads/2011/02/lizard1.pdf (last visited 26.6.2012). See also<br />
Mark Kelman, A Guide <strong>to</strong> Critical Legal Studies (Cambridge, Massachusetts: Harvard University Press<br />
1987), 1, n. 1; Schlegel 1984, supra n. 314 at 392–396; Duxbury 1995, supra n. 42 at 447–450. Biographical<br />
data on the scholars of the organizing committee is provided in Schlegel 1984, id. at n. 3, n. 4, n. 15–<br />
21.<br />
452 Kennedy in Hackney 2012, supra n. 65 at 29.<br />
453 Schlegel 1984, supra n. 314 at 392–396.<br />
454 Tushnet 1991, supra n. 258 at 1516.<br />
455 Schlegel 1984, supra n. 314 at 396–399, 408.<br />
456 David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stanford Law Review<br />
575, 615 (1984).<br />
119
United States and Western Europe since the rise of the New Left in the 1960’s.” 457 By<br />
1977, American critical legal scholarship had reached the stage where it had enough<br />
proponents and substance <strong>to</strong> assemble a conference on the themes and theories of critical<br />
scholarship, and it was at this point that the so-called Critical Legal Studies Movement<br />
came of age. At the <strong>fi</strong>rst conference scholars could gather and talk about the agenda<br />
for changing legal scholarship and academia, and the core of CLS scholarship was<br />
about <strong>to</strong> crystallize.<br />
The development of the critical legal scholarship culminated in the foundation of<br />
the conference. CLS arose out of the legal debates of the 1960s, during a time of political<br />
and social turbulence. Many law students were dissatis<strong>fi</strong>ed with an education that<br />
seemed <strong>to</strong> give an unrealistic picture of law, and even if education was reformed, the<br />
mainstream curriculum remained more or less traditional without a critical approach.<br />
Dissatis<strong>fi</strong>ed with legal education, critical students and scholars of the 1960s developed<br />
later theories which questioned the rational basis of modern social order and law. These<br />
scholars sought <strong>to</strong> point out that since the dominant consciousness prevented people and<br />
the legal profession from understanding the true nature of law, it was the traditional<br />
legal consciousness that was <strong>to</strong> be attacked. CLS scholars developed theories pointing<br />
out the irrationality of modern law, and in doing so were more constructive than is often<br />
assumed. The conference of 1977 was only the beginning of the movement, and in the<br />
following sections we shall take a look at CLS in the last years of the 1970s.<br />
3.2.2 Critical legal scholarship coming of age: CLS in the late 1970s<br />
Critical legal scholarship had evolved during the 1970s from sociological and realist<br />
jurisprudence in<strong>to</strong> more philosophical critical theories of law. The <strong>fi</strong>rst conference on<br />
critical legal studies marked the beginning of the movement but did not mean much <strong>to</strong><br />
the scholarship; it turned from fragmentary literature in<strong>to</strong> an organized conference but<br />
there was no uni<strong>fi</strong>ed school or anything that could be called the theory of CLS. Nevertheless,<br />
critical scholarship was distancing itself from its realist predecessors and focusing<br />
more on the deep structures of law and on legal consciousness and ideology. In the<br />
late 1970s, critical legal literature began <strong>to</strong> blossom and various theories were elaborated.<br />
In general, critical legal scholarship was moving <strong>to</strong>ward criticism of the deep<br />
structures of law. Belonging <strong>to</strong> the empirical wing of CLS, David Trubek had been a<br />
participant in the law and development project and had contributed <strong>to</strong> the social theory<br />
of law. Thus, his “Critical Social Thought about Law” represented a synthesis of critical<br />
theory, neo-Marxism, and empirical approaches <strong>to</strong> law. Beginning from the premises<br />
that law mediated social conflicts and formal rationality covered the contradictions<br />
within law, Trubek concluded that legal scholars had <strong>to</strong> study legal ideals and the gap<br />
457 Peter Gabel and Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the<br />
Practice of Law, 11 N.Y.U. Review of Law and Social Change 369, 371 (1982).<br />
120
etween them and reality as well as the social structures that caused the gap. 458 Trubek<br />
had based his theory partly on the criticism of a study by Isaac Balbus, who then criticized<br />
Trubek for the fact that his theory accepted the values of capitalism as standards<br />
of criticism and therefore conformed <strong>to</strong> the prevailing ideology. 459 With a background<br />
in the more traditional forms of alternative scholarship, Trubek represented the more<br />
empirical branch, whereas Balbus as a neo-Marxist scholar stressed the ideological<br />
functions of law. According <strong>to</strong> the latter view, the simple criticism of the way law functioned<br />
was insuf<strong>fi</strong>cient because the ultimate point of criticism was the motives behind it.<br />
The general trend among alternative legal scholars and lawyers of the 1970s was<br />
<strong>to</strong> seek alternatives for the legal system. For instance, the public interest law movement<br />
continued its efforts <strong>to</strong> provide legal aid for the general public, 460 and, in addition, there<br />
was an increased interest in alternative dispute resolution 461 and access <strong>to</strong> justice 462<br />
which all sought improvements <strong>to</strong> the legal system outside the traditional methods.<br />
Since scholars had become more skeptical <strong>to</strong>ward the idea that law could bring social<br />
change, alternative solutions <strong>to</strong> legal problems came under scrutiny, as well as the social<br />
structures and the causes of those problems, 463 while the attitude <strong>to</strong>ward the simple instrumental<br />
conception of law became more skeptical. 464 Trubek argued that critical legal<br />
scholarship had <strong>to</strong> be “critical without being cynical, empirical but not positivistic,<br />
normative but not subjective, detached yet not disinterested.” 465 However, critical legal<br />
scholarship was often pessimistic about empiricism and interest was then directed <strong>to</strong>ward<br />
the legal structures and ideologies. The philosophical and theoretical basis of CLS<br />
developed and expanded at the end of the decade as scholars elaborated new theories<br />
and developed older theories further.<br />
Various philosophical analyses became useful in examining law beneath the surface.<br />
They also meant a break in the previous realist tradition. In a phenomenological<br />
analysis of law, Peter Gabel wrote that the realist focus on what judges did in fact mis<strong>to</strong>ok<br />
“the behavior for the meaning within which the behavior [was] lived.” 466 The basis<br />
of his theory was, then, the interpretive structures within which the behavior of judges<br />
458 David M. Trubek, Complexity and Contradiction in Legal Order: Balbus and the Challenge of Critical<br />
Social Thought about Law, 11 Law & <strong>Society</strong> Review 529, 541–555, 566–567 (1977).<br />
459 Isaac D. Balbus, Commodity Form and Legal Form: An Essay on the “Relative Au<strong>to</strong>nomy of the<br />
Law”, 11 Law & <strong>Society</strong> Review 571, 581–582 (1977).<br />
460 Rabin 1976, supra n. 188.<br />
461 John C. Cratsley, Community Courts: Offering Alternative Dispute Resolution within the Judicial<br />
System, 3 Vermont Law Review 1–69 (1978).<br />
462 Mauro Cappelletti and Bryant Garth, Access <strong>to</strong> Justice: The Newest Wave in the Worldwide Movement<br />
<strong>to</strong> Make Rights Effective, 27 Buffalo Law Review 181–292 (1978).<br />
463 Marc Galanter, Delivering Legality: Some Proposals for the Direction of Research, 11 Law & <strong>Society</strong><br />
Review 225, 228–229, 241–245 (1976).<br />
464 John Grif<strong>fi</strong>ths, Is Law Important? 54 New York University Law Review 339–374 (1979). Experiences<br />
with law and development were important in that some scholars realized that law could not bring social<br />
development. (Id. at 350, and see Trubek 1972, supra n. 136; Trubek and Galanter 1974, supra n. 138;<br />
Galanter 1974, supra n. 285.)<br />
465 Trubek 1977, supra n. 458 at 529.<br />
466 Peter Gabel, Intention and Structure in Contractual Conditions: Outline of a Method for Critical Legal<br />
Theory, 61 Minnesota Law Review 601, 602 (1977).<br />
121
was conducted and perceived. Since law was manifested in these structures, which were<br />
rei<strong>fi</strong>ed <strong>to</strong> suit the needs of traditional legal discourse, a philosophical analysis helped <strong>to</strong><br />
understand and analyze the behavior within them. 467 The emphasis on continental philosophy<br />
introduced new elements in<strong>to</strong> American critical legal scholarship. By applying<br />
the philosophy of Sartre and Heidegger, Gabel de<strong>fi</strong>ned an existentialistphenomenological<br />
context within which legal discourse and practice <strong>to</strong>ok place, and<br />
which pointed out the limits of interpretation and the process of rei<strong>fi</strong>cation and alienation.<br />
Critical scholars did not regard law simply as arbitrary behavior, but rather as a<br />
manifestation of social-legal phenomena within certain structures, and it was not simply<br />
the behavior that was <strong>to</strong> be analyzed but the preconditions of that behavior.<br />
Paradoxes and contradictions in legal thought remained an interesting <strong>to</strong>pic for<br />
critical scholars. Karl Klare demonstrated how the necessity <strong>to</strong> conform <strong>to</strong> legalism<br />
turned legal reasoning in<strong>to</strong> a formalism that excluded the possibility of radical reform.<br />
Modern legal consciousness was thus a kind of “social conceptualism” which noted the<br />
social circumstances but preserved the formalist conceptualism that maintained the distinction<br />
between law and politics. This “characteristic of modern legal consciousness”,<br />
Klare argued, preserved and obscured “the contradictions of legal thought, which reflect[ed]<br />
the contradictions of social life in late capitalist society.” 468 The point was <strong>to</strong><br />
show that realist reforms were more apparent than real and that the necessities of the<br />
capitalist economy still had great signi<strong>fi</strong>cance in legal reasoning. In the late 1970s, as<br />
left ideology was fading, scholars felt the need <strong>to</strong> show that liberal ideology had produced<br />
a false consciousness that stimulated faith in law. They thought that modern legal<br />
thought was aware of the impact of social fac<strong>to</strong>rs on legal reasoning, but nonetheless<br />
maintained the ideals of legal rationality and neutrality and thus contributed <strong>to</strong> the<br />
preservation of the ideology of the ruling class.<br />
The focus on structures brought up the complicated relationship between CLS and<br />
Marxism. CLS scholarship was closely related <strong>to</strong> neo-Marxism, but the scholars did not<br />
often regard orthodox Marxism as useful in legal analysis 469 although there were also<br />
more hospitable approaches. 470 Nonetheless, despite ambiguities in interpretation, 471 a<br />
467 Id. at 624–642.<br />
468 Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,<br />
1937–1941, 62 Minnesota Law Review 265, 280, 291–292, 306–310, 329–336 (1978), quotation<br />
at 336.<br />
469 See, e.g., Balbus 1977, supra n. 459 at 571–572; Gabel 1977, supra n. 466 at 614–616; Klare 1978,<br />
supra n. 468 at 269, n. 13; Trubek 1977, supra n. 458 at 555–561.<br />
470 Kairys 1978, supra n, 441 at 940. Kairys, however, noted that even if law reflected social class conflict<br />
and was biased <strong>to</strong>ward bourgeois ideology, it did not favor the capitalist interests on every occasion. (Id.<br />
at 946, n. 55.)<br />
471 Critical legal scholars have used arguments similar <strong>to</strong> those of Marxism but they have been very ambiguous<br />
about their theoretical basis on the issue. (Richard W. Bauman, The Communitarian Vision of<br />
Critical Legal Studies, 33 McGill Law Journal 295, 311–312, n. 43 (1988).) For the problematic relationship<br />
between CLS and Marxism, see, e.g., Jennifer C. Jaff, Radical Pluralism: A Proposed Theoretical<br />
Framework for the Conference on Critical Legal Studies, 72 George<strong>to</strong>wn Law Journal 1143, 1145–1147<br />
(1984); Alan Hunt, The Theory of Critical Legal Studies, 6 Oxford Journal of Legal Studies 1, 8–13<br />
(1986).<br />
122
evision of Marxism that had occurred in other social sciences since the late 1960s was<br />
part of the development of CLS. Critical scholars had <strong>to</strong> explain the relationship between<br />
the basis and the superstructure without however being deterministic, and they<br />
had <strong>to</strong> analyze the relative au<strong>to</strong>nomy of law and give it meaningful substance. 472 The<br />
studies of the legal structures and consciousness reflected the neo-Marxist pursuit <strong>to</strong><br />
avoid economic determinism and any other kind of simple explanation of legal phenomena.<br />
Recent years had witnessed several efforts <strong>to</strong> help the underprivileged, which<br />
itself spoke against the simple concept of law as a ruling-class <strong>to</strong>ol of oppression.<br />
Critical theory thus faced the problem of explaining the relationship between law<br />
and society. The relative au<strong>to</strong>nomy of law was a concept with which one could avoid<br />
determinism and reductionism. According <strong>to</strong> Tushnet, a theory of the relative au<strong>to</strong>nomy<br />
of law had <strong>to</strong> explain the relationship between social conflicts and the contradictions in<br />
the economy and law on the one hand, and the relationship between these contradictions<br />
and the instrumentalist and structuralist view of law on the other. 473 Since law was a<br />
part of the incomplete hegemony of capitalism, analysis on the ideological functions of<br />
law could explain the contradictions. 474 Klare emphasized that ideological functions of<br />
law also alienated people from their real-life circumstances. Through law, people balanced<br />
the conflicts between social interests and hence created and de<strong>fi</strong>ned the society,<br />
but the form of modern law prevented them from realizing this. 475 For instance, since<br />
labor law legitimated the un-freedom of the work place, “the struggle <strong>to</strong> emancipate<br />
labor must also be a struggle <strong>to</strong> emancipate law itself.” 476 A serious problem for the<br />
critical scholars was the question of whether law legitimated unequal and unjust circumstances,<br />
and their goal was <strong>to</strong> demystify law <strong>to</strong> realize the potential of reform. Since<br />
the critical scholars wanted <strong>to</strong> distance themselves from the Soviet Union, they did not<br />
use socialist rhe<strong>to</strong>ric in criticizing the capitalist hegemony. Nevertheless, they argued<br />
that in capitalist society freedom and democracy were possible only <strong>to</strong> the extent that<br />
they suited capitalism, and thus they wanted <strong>to</strong> disclose the ties between ideology and<br />
law.<br />
Because of the drive <strong>to</strong> emancipate law from its structural chains, critical scholars<br />
attacked the liberal legal theory that appeared <strong>to</strong> defend the rights of the citizen. For the<br />
critical scholars, however, the liberal defense of rights was more apparent than real. In<br />
472 See Mark Tushnet, A Marxist Analysis of American Law, 1 Marxist Perspectives 96–116 (1978); Karl<br />
Klare, Law-Making as Praxis, 40 Telos 123–135 (1979). According <strong>to</strong> Tushnet, the relatively late revision<br />
of Marxism in legal scholarship was due <strong>to</strong> the structures of legal education which did not encourage<br />
theoretical or critical learning, and also <strong>to</strong> the changed circumstances in the university, which encouraged<br />
more people <strong>to</strong> study law. (Tushnet 1978, id. at n. 1.)<br />
473 Tushnet 1978, supra n. 472 at 102–104, 108–111. See also Balbus 1977, supra n. 459 at 572–573,<br />
583–586; Trubek 1977, supra n. 458 at 557. For criticism of the concept of relative au<strong>to</strong>nomy, see Grif<strong>fi</strong>ths<br />
1979, supra n. 464 at 360–361, n. 49.<br />
474 Mark Tushnet, Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in<br />
the Seventies, 57 Texas Law Review 1307, 1346–1353 (1979).<br />
475 Klare 1979, supra n. 472 at 132.<br />
476 Klare 1978, supra n. 468 at 337–339.<br />
123
1977, Ronald Dworkin’s Taking Rights Seriously, 477 a book that developed a nonpositivist<br />
legal theory <strong>to</strong> protect rights, was published, but the liberal ethos of the book<br />
did not please the critical scholars. According <strong>to</strong> Gabel, Dworkin’s theory was “a justi<strong>fi</strong>cation<br />
of contemporary American legal practice expressed in abstract and universal<br />
terms.” 478 The critics thought that the problem of the liberal scholars was that they neglected<br />
the analysis of values and policies in their efforts <strong>to</strong> provide a rational basis for<br />
legal theory. Values, however, derived from the preferences of the powerful classes and<br />
law often protected these preferences. 479 Fact-value analysis was necessary because<br />
“[j]ustice, freedom and equality have no meaning outside of a particular system of social<br />
relations.” 480 Liberal scholars, however, <strong>to</strong>ok the present as given and thus “they<br />
confuse a his<strong>to</strong>rically contingent social experience with human nature, reifying ‘man’ in<br />
their own alienated self-image and constructing imaginary ‘communities’ which are<br />
simply idealized representations of the alienated social relationships they have known in<br />
their own lives.” 481 From the critical perspective, liberal theory was a justi<strong>fi</strong>cation and a<br />
mysti<strong>fi</strong>cation of the contemporary social and legal order and made the values of modern<br />
society seem inevitable and natural. Like the radical spirit of the 1960s, the theory was<br />
going beyond the observable reality and challenged the standards of modern society.<br />
<strong>Society</strong> and its institutions were not seen simply as the subjects of observation but rather<br />
as something that was constructed in his<strong>to</strong>ry and society.<br />
The problem of values was of central importance <strong>to</strong> critical legal theory, and its<br />
basic premises held that facts and values were connected. 482 Baker noted that modern<br />
rights theorists had not been able <strong>to</strong> develop a theory that could convincingly argue why<br />
some values ought <strong>to</strong> be preferred <strong>to</strong> others. Therefore, the inequalities in social structures<br />
were reflected in the inequalities in policy-making. 483 Indeed, the critics continued,<br />
there were no absolute values, although that was often assumed by the traditional theory,<br />
values being socially constructed, 484 and because there was no consensus on values<br />
in society, there could be no uniform theory of justice. 485 The problem of values <strong>to</strong>ok<br />
the critical legal scholarship beyond the surface of legal problems. The critical notion<br />
was that legal reasoning did not pay attention <strong>to</strong> the fundamental problems, whether it<br />
was unders<strong>to</strong>od in formalistic or realistic terms. For the critical understanding, values<br />
477 Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press<br />
1977).<br />
478 Peter Gabel, Book Review [Taking Rights Seriously], 91 Harvard Law Review 302, 302 (1977).<br />
479 Kenneth Casebeer, Escape From Liberalism: Fact and Value in Karl Llewellyn, 1977 Duke Law Journal<br />
671, 684–702.<br />
480 Kairys 1978, supra n. 441 at 941.<br />
481 Gabel 1977, supra n. 478 at 315.<br />
482 See Unger 1975, supra n. 301 at 67–81.<br />
483 C. Edwin Baker, Counting Preferences in Collective Choice Situations, 25 UCLA Law Review 381,<br />
383–393 (1978). Baker developed a theory that focused on liberty and equality and stated that the preferences<br />
ought <strong>to</strong> be determined in collective decision-making where everyone’s preference would count.<br />
(Id. at 393–412.)<br />
484 C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA Law Review 964, 974–<br />
976 (1978).<br />
485 Tushnet 1979, supra n. 474 at 1307–1308, 1316–1321.<br />
124
were always contingent and biased, but they were expressed in neutral terms. Furthermore,<br />
values were always present in legal reasoning. Thus reflecting the ideology of the<br />
counter-cultures, the critical scholars sought <strong>to</strong> demonstrate that values could be anything,<br />
but the traditional legal consciousness <strong>to</strong>ok the contemporary system as given and<br />
neglected any possibility of real alternatives.<br />
The fundamental attack on the tradition of legal thought was evident in the criticism<br />
of values. This can be seen in Kenneth Casebeer’s analysis of judging. He argued<br />
that values were inherent in legal materials, as well as in perception and interpretation,<br />
and these values reflected certain social interests. Thus the dynamics of legal reasoning<br />
could not be unders<strong>to</strong>od correctly if values were neglected. 486 This fundamental criticism<br />
distanced CLS from the other critical schools of jurisprudence. Duxbury writes<br />
that CLS “evolved as a reaction against the individualism and consensus-orientation” of<br />
the postwar American jurisprudence. 487 As the debate on neutral principles demonstrates,<br />
CLS was rather a radicalization of the dissenting voices than a reaction against a<br />
complete consensus. Although there were competing schools, none of them questioned<br />
the basis of jurisprudence. CLS, however, emerged from a different kind of intellectual<br />
background, and as a result of a complex process, it ended up criticizing the very basis<br />
of law.<br />
In the search for the roots of the problems of law, CLS scholars sought <strong>to</strong> show<br />
that other alternative schools of jurisprudence shared the same fundamental problems as<br />
the tradition. Another major school, law and economics, was also criticized for its inability<br />
<strong>to</strong> provide a rational basis for legal analysis. Mark Kelman worked <strong>to</strong> demonstrate<br />
that law and economics was illogical and false in reality. He debunked the Coase Theorem,<br />
488 and argued that the law and economics premise that freedom of choice maximized<br />
welfare was incorrect because people were not similar a<strong>to</strong>mistic concepts but individual<br />
persons, and, moreover, several fac<strong>to</strong>rs affected the choices in market situations.<br />
In addition, there was no universal concept of welfare. 489 Further, C. Edwin Baker argued<br />
that law and economics was flawed in analyzing whether a law was “ef<strong>fi</strong>cient.”<br />
This was so because law and economics <strong>to</strong>ok the existing distribution of wealth, desires,<br />
and values as given, and therefore simply legitimized the status quo, rei<strong>fi</strong>ed reality, protected<br />
the interests of the economy and big business, and excluded the possibility of<br />
alternatives. 490 The elements of neo-Marxism and critical theory were evident in the<br />
critical pursuit <strong>to</strong> point out the way the traditional legal scholarship rei<strong>fi</strong>ed reality and<br />
protected the contemporary system. These aspects encouraged the critical scholars <strong>to</strong><br />
analyze the origins and purposes of values and ideologies in the law.<br />
486 Kenneth M. Casebeer, The Judging Glass, 33 University of Miami Law Review 59, 78–80, 101–103,<br />
110–111, 118–123 (1978).<br />
487 Duxbury 1995, supra n. 42 at 424.<br />
488 Mark Kelman, Consumption Theory, Production Theory, and Ideology in the Coase Theorem, 52<br />
Southern California Law Review 669, 673, 678–685, 697–698 (1979).<br />
489 Mark Kelman, Choice and Utility, 1979 Wisconsin Law Review 769, 778–782.<br />
490 C. Edwin Baker, Posner’s Privacy Mystery and the Failure of Economic Analysis of Law, 12 Georgia<br />
Law Review 475, 482–483, 489, 493–494 (1978).<br />
125
A central argument was that values were construed and built in<strong>to</strong> law in his<strong>to</strong>ry, as<br />
became evident in critical legal his<strong>to</strong>ry. Indeed, one of the most remarkable events in<br />
the critical legal scholarship of the late 1970s was the publication of Mor<strong>to</strong>n Horwitz’s<br />
book The Transformation of American Law, 1780─1860 in 1977. 491 Horwitz had conducted<br />
critical studies on legal his<strong>to</strong>ry throughout the 1970s, and the book was a culmination<br />
of his scholarship thus far, gathering the most important elements of some of the<br />
already published articles and providing new insights and data. The treatise was a thorough<br />
analysis of the his<strong>to</strong>rical development of American law during its constructive<br />
period in the antebellum years, its central arguments being that the development of the<br />
legal doctrine conformed <strong>to</strong> the economic interests of the time, courts were the mo<strong>to</strong>rs<br />
driving change, and that there was a connection between the legal profession and the<br />
economic interests the law promoted. 492 The book was typical critical legal studies literature.<br />
Through his<strong>to</strong>rical analysis, it sought <strong>to</strong> point out that the law was biased <strong>to</strong>ward<br />
the economic elite and that the legal profession also conformed <strong>to</strong> these interests. Besides<br />
being a manifestation of the critical notions in actual cases, the signi<strong>fi</strong>cance of the<br />
book was also in the discussion that followed its publication. 493<br />
The response of the legal profession in general <strong>to</strong>ward Horwitz’s book was critical.<br />
Indeed, reviewers noted that a “[c]ynical criticism, economic determinism, and academic<br />
nihilism have come of age in legal-his<strong>to</strong>ry writing,” 494 depicting a view of law as<br />
a ruthless battle for sel<strong>fi</strong>sh interests in a “dark and Dos<strong>to</strong>yevskyan” world. 495 Horwitz<br />
was criticized for ascribing legal changes simply <strong>to</strong> economic fac<strong>to</strong>rs, creating thus a<br />
plot in which the legal profession <strong>to</strong>gether with the economic elite shaped the law <strong>to</strong> <strong>fi</strong>t<br />
their interests. 496 The critics of Horwitz argued that the development of law was more<br />
au<strong>to</strong>nomous than instrumental, 497 and that he had generalized and simpli<strong>fi</strong>ed issues beyond<br />
the scope of his research. 498 As a neo-Marxist scholar even argued, he had<br />
“walked in<strong>to</strong> a reductionist trap,” 499 which had turned his interpretations in<strong>to</strong> economic<br />
491 Mor<strong>to</strong>n J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Massachusetts:<br />
Harvard University Press 1977).<br />
492 Id. esp. at 99–101, 210, 228, 253–266.<br />
493 For more detailed accounts of the debate, see Wythe Holt, Mor<strong>to</strong>n Horwitz and the Transformation of<br />
American Legal His<strong>to</strong>ry, 23 William and Mary Law Review 663–723 (1982); Kalman 2002, supra n. 341.<br />
Both writers, however, support Horwitz’s thesis, albeit not uncritically. In addition, I shall focus only on<br />
the debates that <strong>to</strong>ok place in the late 1970s, although they continued in<strong>to</strong> the 1980s.<br />
494 John Phillip Reid, A Plot <strong>to</strong>o Doctrinaire, 55 Texas Law Review 1307, 1307 (1977).<br />
495 Stephen B. Presser, Revisiting the Conservative Tradition: Towards a New American Legal His<strong>to</strong>ry,<br />
52 New York University Law Review 700, 700 (1977).<br />
496 Reid 1977, supra n. 494 at 1311–1320.<br />
497 R. Randall Bridwell, Theme v. Reality in American Legal His<strong>to</strong>ry: A Commentary on Horwitz, The<br />
Transformation of American Law, 1780–1860, and on the Common Law in America, 53 Indiana Law<br />
Journal 449, 472, 496 (1978).<br />
498 Presser 1977, supra n. 495 at 720–724; Maxwell Bloom<strong>fi</strong>eld, Book Review [Transformation of American<br />
Law, 1780–1860], 30 Vanderbilt Law Review 1102, 1105 (1977); Willard Hurst, Book Review<br />
[Transformation of American Law, 1780–1860], 21 American Journal of Legal His<strong>to</strong>ry 175, 178–179<br />
(1977).<br />
499 Eugene D. Genovese, Book Review [Transformation of American Law, 1780–1860], 91 Harvard Law<br />
Review 726, 730 (1978).<br />
126
determinism 500 or ideological his<strong>to</strong>ry. 501 With respect <strong>to</strong> his<strong>to</strong>ry, the critics argued that<br />
Horwitz’s material did not support his conclusions, 502 and that he had failed both on<br />
evidence and analysis at numerous points. 503<br />
The critical response <strong>to</strong>wards Horwitz’s book describes the cliff between the traditional<br />
and the critical legal thought well. Most of Horwitz’s critics disagreed with his<br />
methods of emphasizing economic fac<strong>to</strong>rs in legal development. Since legal his<strong>to</strong>ry is<br />
an interpretative discipline, disagreement comes naturally, but it was the economic determinism<br />
that was so obvious in the book which particularly attracted the criticism of<br />
legal his<strong>to</strong>rians. Although most of the profession agreed that economics had influence<br />
on the development of law, they could not accept the argument that it was the most important<br />
or even the only fac<strong>to</strong>r. The criticism pointed out the vulnerability of the critical<br />
theory’s thesis of the economic biases of law, which was precisely why critical scholars<br />
were developing more nuanced theories at the same time.<br />
The criticism also concerned evaluations in legal his<strong>to</strong>ry. In an otherwise relatively<br />
hospitable review, Grant Gilmore criticized Horwitz for presenting the transformation<br />
as a “bad” thing, 504 and others also noted that it was highly questionable as <strong>to</strong> whose<br />
bene<strong>fi</strong>t the legal changes aided. 505 Blackmar also emphasized that because of the signi<strong>fi</strong>cance<br />
of legal doctrine, the legal profession was not systematically biased <strong>to</strong>ward any<br />
one interest. 506 In order <strong>to</strong> highlight the impact of his<strong>to</strong>ry on the present day, critical<br />
scholarship stressed social conflicts and their impact on legal change. By doing this, the<br />
critical scholars obviously sought <strong>to</strong> contextualize contemporary problems, but also <strong>to</strong><br />
expand the basis of legal scholarship.<br />
The <strong>fi</strong>ercest critique expressed the general attitude of the traditional profession <strong>to</strong>ward<br />
critical legal scholarship. Teachout criticized the “new school” for misunderstanding<br />
and downgrading the role of the rule of law in his<strong>to</strong>ry and in society by reducing<br />
law <strong>to</strong> an instrument of economic repression. 507 John Reid considered Horwitz’s book<br />
500 Reid 1977, supra n. 494 at 1313–1317; Tushnet 1978, supra n. 472 at 105. Tushnet also criticized<br />
Horwitz’s analysis even if he was also a critical scholar. The disagreement was over their differing views<br />
on Marxism.<br />
501 Peter R. Teachout, Light in Ashes: The Problem of “Respect for the Rule of Law” in American Legal<br />
His<strong>to</strong>ry, 53 New York University Law Review 241, n. 131 (1978). Teachout in fact reviews another book,<br />
but he also takes a stand on the Horwitz’s book in his lengthy review essay.<br />
502 Stephen F. Williams, Book Review [Transformation of American Law, 1780–1860], 25 UCLA Law<br />
Review 1187, 1188–1200, 1208, 1214–1215 (1978).<br />
503 Bridwell 1978, supra n. 497 at 450.<br />
504 Grant Gilmore, From Tort <strong>to</strong> Contract: Industrialization and the Law, 86 Yale Law Journal 788, 794–<br />
795 (1977).<br />
505 Morris S. Arnold, Book Review [Transformation of American Law, 1780–1860], 126 University of<br />
Pennsylvania Law Review 241, 244–245; Charles B. Blackmar, Book Review [Transformation of American<br />
Law, 1780–1860], 22 St. Louis University Law Journal 228, 230 (1978); Presser 1977, supra n. 495<br />
at 719–721; Reid 1977, supra n. 494 at 1318–1320.<br />
506 Blackmar 1978, supra n. 505 at 230–231.<br />
507 Teachout 1978, supra n. 501 at 272–284. Teachout noted that critical legal studies, or the “new school”<br />
as he called it, was useful in criticizing the liberal assumptions and hence keeping the full potentiality of<br />
liberalism alive, but he criticized the pessimism of the school. (Id. at 277, n. 124.) He also noted that the<br />
new legal his<strong>to</strong>ry relating <strong>to</strong> that of Horwitz was a widespread phenomenon, but the “dark pessimism”<br />
<strong>to</strong>ward the rule of law was not shared by everyone applying those methods. (Id. at n. 3.)<br />
127
as desacralizing, “conspira<strong>to</strong>rial materialism” without evidence. Therefore, he continued,<br />
the scholarly profession was <strong>to</strong> be aware of it, because “[a] generation of law students,<br />
many predisposed <strong>to</strong> arguments of Machiavellian intrigue explaining business<br />
success or rights of private property, are about <strong>to</strong> be subjected <strong>to</strong> a legal his<strong>to</strong>ry that<br />
must be made <strong>to</strong> prove its case or be driven from the marketplace.” 508 Traditional scholars<br />
did not like the cynicism and pessimism that critical scholars often represented.<br />
Since they thought that critical legal scholarship attacked fundamental legal premises<br />
without solid evidence for its arguments, they demanded rationality from it.<br />
Although not completely rebutted, Horwitz’s book raised lots of criticism and<br />
many scholars were eager <strong>to</strong> debunk his thesis. 509 There was something about the book<br />
that horri<strong>fi</strong>ed the legal profession because another book of Marxist legal his<strong>to</strong>ry was<br />
also published in 1977, but which attracted much less attention. In Law and the Rise of<br />
Capitalism, Michael Tigar and Madeleine Levy argued that the development of law<br />
followed the development of capitalism. By going through the development of law from<br />
medieval times, the authors sought <strong>to</strong> point out that the modern legal ideology and the<br />
state were meant <strong>to</strong> protect the interests of the ruling class and <strong>to</strong> maintain the existing<br />
economic system. 510 In a review, Judith Kofler, herself a critical scholar, was pleased<br />
with the idea of the book but disappointed in its execution because of the lack of his<strong>to</strong>rical<br />
evidence and the synthesis of the forces of legal change. 511 It was not simply Marxist<br />
legal his<strong>to</strong>ry but Horwitz’s book in particular that raised the criticism.<br />
Laura Kalman has argued that the critical reaction <strong>to</strong>ward Horwitz’s book pointed<br />
out that the spirit of process jurisprudence was still strong and that the legal profession<br />
disliked the idea that law was structurally flawed. 512 These arguments seem plausible.<br />
Horwitz indeed argued that law was not neutral but promoted certain interests at the<br />
expense of others, and that the biases of law followed from judicial decision-making<br />
and were structured in<strong>to</strong> legal thinking. It was also a part of the critical legal studies<br />
which at this point did not get the attention the Transformation did. Neither diffuse theory<br />
nor abstract generalizations bothered legal scholars, but Horwitz’s book did because<br />
it was written in plain language and it concerned the American judiciary in the age of<br />
the building of American law. It was a critique of doctrine, analyzed in the light of its<br />
508 Reid 1977, supra n. 494 at 1321.<br />
509 Of the reviews dealt with here, Reid 1977, supra n. 494; Bridwell 1978, supra n. 497; Williams 1978,<br />
supra n. 501 were essentially critical. Arnold 1977, supra n. 505; Blackmar 1978, supra n. 505; Bloom<strong>fi</strong>eld<br />
1977, supra n. 498; Genovese 1978, supra n. 499; Gilmore 1977, supra n. 504; Hurst 1977, supra n.<br />
498; Presser 1977, supra n. 495; Teachout 1978, supra n. 501 were relatively “ordinary” book reviews<br />
with a more or less critical <strong>to</strong>ne and thus disagreeing on certain interpretations, with the exception, of<br />
course, of Teachout’s criticism of the pessimism over the rule of law.<br />
510 Michael E. Tigar & Madeleine R. Levy, Law and the Rise of Capitalism (New York: Monthly Review<br />
Press 1977), 287.<br />
511 Judih S. Kofler, Book Review [Law and the Rise of Capitalism], 59 Bos<strong>to</strong>n University Law Review<br />
423, 423–425, 430–432 (1979). For another review, see Kairys 1978, supra n. 441, which is a positive<br />
review but its purpose seems <strong>to</strong> be more <strong>to</strong> promote Kairy’s critique of legal ideology than <strong>to</strong> review the<br />
book.<br />
512 Kalman 2002, supra n. 341 at 853, 855.<br />
128
his<strong>to</strong>rical development. The book thus hit the weak spot of the legal profession in a way<br />
that could not have been ignored.<br />
The signi<strong>fi</strong>cance of the critical legal studies of the late 1970s was precisely that<br />
they pictured serious problems in everyday matters. Another signi<strong>fi</strong>cant event of the<br />
early CLS literature was the publication of Duncan Kennedy’s The Structure of Blacks<strong>to</strong>ne’s<br />
Commentaries. 513 The article continued Kennedy’s theories on the indeterminacy<br />
of legal reasoning 514 and on the collective consciousness that structured legal<br />
thought. 515 The article was particularly important because it introduced the concept of<br />
fundamental contradiction, which meant that the freedom of the individual was at the<br />
same time both dependent and incompatible with the others, and this contradiction both<br />
constituted and dis<strong>to</strong>rted the relations between people. With respect <strong>to</strong> law, it was the<br />
“very essence of every problem.” 516 For years, the critical scholars had worked <strong>to</strong> show<br />
the fundamental flaw in modern law, and Kennedy’s postulate was a powerful and concise<br />
articulation of this notion.<br />
Kennedy sought <strong>to</strong> demonstrate how modern legal and social consciousness both<br />
included the fundamental contradiction and denied it. He argued that in modern liberal<br />
thought, “civil society” was considered as “a realm of free interaction between private<br />
individuals who are unthreatening <strong>to</strong> one another because the other entity, ‘the state’,<br />
forces them <strong>to</strong> respect one another’s rights. In civil society, others are available for good<br />
fusion as private individual respecters of rights; through the state, they are available for<br />
fusion as participants in the collective experience of enforcing rights. A person who<br />
lives the liberal mode can effectively deny the fundamental contradiction.” Thus, according<br />
<strong>to</strong> Kennedy, legal thought subdued by the fundamental contradiction was apologetic<br />
because law was biased <strong>to</strong>ward certain social interests, and this affected the way<br />
law mediated and denied the fundamental contradiction. 517<br />
Fundamental contradiction was at the heart of law and of legal scholarship, not only<br />
reflecting the inner contradictions and incompatibilities within society, law, and legal<br />
thought, but also involving every aspect of human consciousness and interaction. According<br />
<strong>to</strong> Kennedy, the purpose of critical legal scholarship was <strong>to</strong> realize the contradiction<br />
and analyze its impacts on law and consciousness. 518 Fundamental contradiction<br />
was a miles<strong>to</strong>ne in critical legal scholarship because it combined much critical potential<br />
in<strong>to</strong> one concept. The concept covered the relative au<strong>to</strong>nomy of law by pointing out the<br />
structural biases within it, and through it one was able <strong>to</strong> point out how the legal consciousness<br />
made the reality seem natural and just, but also justifying inequalities. In a<br />
513 Duncan Kennedy, The Structure of Blacks<strong>to</strong>ne’s Commentaries, 28 Buffalo Law Review 205–382<br />
(1979).<br />
514 Kennedy 1973, supra n. 280; Kennedy 1976, supra n. 315.<br />
515 Kennedy 2006, supra n. 296.<br />
516 Kennedy 1979, supra n. 513 at 211–213, quotation at 213, emphasis original. This fundamental contradiction<br />
is the “most-often cited of all passages on critical legal studies” (Kelman 1987, supra n. 451 at<br />
17).<br />
517 Kennedy 1979, supra n. 513 at 217. However, law was not necessarily apologetic. It was apologetic<br />
only when it was biased <strong>to</strong>ward particular interests. (Id. at 217–218.)<br />
518 Id. at 219–221.<br />
129
sense, these were not novel ideas in critical thought but it was not until this point that<br />
the idea was expounded in a lucid, albeit rough, concept.<br />
In addition <strong>to</strong> the concept of fundamental contradiction, Kennedy’s article had at<br />
least two dimensions. First, in his his<strong>to</strong>rical analysis, Kennedy sought <strong>to</strong> explicate how<br />
Blacks<strong>to</strong>ne’s Commentary legitimized the status quo and dis<strong>to</strong>rted the reality <strong>to</strong> appear<br />
rational, and how it still affected modern American legal thinking. 519 The purpose was<br />
<strong>to</strong> point out that even if law and legal theory had changed greatly since the days of<br />
Blacks<strong>to</strong>ne, his defense of liberalism still had a major impact on the American legal<br />
consciousness. Second, Kennedy’s analysis contributed <strong>to</strong> the CLS critique of rights,<br />
since, according <strong>to</strong> him, the de<strong>fi</strong>ning characteristic of liberalism was that rights mediated<br />
the fundamental contradiction. Rights made conflicts and the solutions <strong>to</strong> them seem<br />
rational. 520 In the critical thought, rights were only a way <strong>to</strong> reify capitalist oppression<br />
and social inequalities, and an acceptance of rights would have turned one in<strong>to</strong> a supporter<br />
of the prevailing order. The criticism of rights was thus fundamental criticism of<br />
law and society that did not accept the premises of the society at face value. It was a<br />
reminder of the radical critique of the 1960s at a time when the society in general was<br />
moving in a more conservative direction and an acceptance of the status quo through the<br />
emphasis on rights.<br />
The consensus on the superiority of modern American society was a major motive<br />
behind the urge <strong>to</strong> point out the impossibility of distinguishing between right and<br />
wrong. The problem of choosing between alternatives in law, which reflected the indeterminate<br />
and conflicting nature of law, was an important feature of critical legal<br />
thought. In an analysis of the contradic<strong>to</strong>ry relationship between the vagueness of law<br />
and the rule of law, Al Katz and Lee Teitelbaum argued that law regulated complicated<br />
situations with imprecise language. The vagueness of law and the conflict between formal<br />
and substantive justice on the one hand and the rule of law on the other caused antinomies<br />
in law which threatened the personal au<strong>to</strong>nomy of people. 521<br />
Katz developed this notion further in his boundary theory, in which he argued that<br />
whenever there was a legal conflict, it was resolved either by balancing the contradic<strong>to</strong>ry<br />
alternatives or by choosing one of them. In either case, however, the solution was<br />
made without an objective method, and hence always represented moral absolutism and<br />
519 Id. esp. at 236–237, 240–244, 247, 255–258, 261–264, 266, 268, 272–273, 288, 301, 303, 307, 311–<br />
312, 334–335, 348–350, 353, 365–366, 372–373, 376, 380–382. For a criticism of Kennedy's his<strong>to</strong>rical<br />
interpretation of Blacks<strong>to</strong>ne, see John W. Cairns, Blacks<strong>to</strong>ne, an English Institutist: Legal Literature and<br />
the Rise of the Nation State, 4 Oxford Journal of Legal Studies 318, 350–352 (1984). Cairns seems <strong>to</strong><br />
argue that, <strong>fi</strong>rst, there is not enough evidence for Kennedy’s conclusions, and second, Kennedy has not<br />
completely unders<strong>to</strong>od the his<strong>to</strong>rical context of Blacks<strong>to</strong>ne. In addition, Harold Berman has pointed out<br />
that on some occasions Blacks<strong>to</strong>ne did expose the conflicts in English law. (Harold J. Berman, Law and<br />
Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge,<br />
Massachusetts: Harvard University Press 2003), n. 81 at 483).<br />
520 Kennedy 1979, supra n. 513 at 265. See also id. at 259–260, 294–295, 297–298, 355–358.<br />
521 Al Katz & Lee E. Teitelbaum, PINS Jurisdiction, the Vagueness Doctrine, and the Rule of Law, 53<br />
Indiana Law Journal 1, 5–6, 11–17, 27–32 (1977).<br />
130
the irrationality of decision-making, both of which the modern consciousness denied. 522<br />
The general presumptions behind both Kennedy’s and Katz’s recent theories were that<br />
“law is relative <strong>to</strong> social theory and social practice; that contemporary jurisprudence is<br />
an obfuscating apologetic” and, furthermore, “that the notion of legal au<strong>to</strong>nomy is a<br />
lie.” 523 In order <strong>to</strong> point out the indeterminacy of law and the impossibility and irrationality<br />
of modern values, critical scholarship was moving from structures <strong>to</strong> consciousness<br />
and from philosophy <strong>to</strong> psychology, but the basic conceptions were the same as<br />
they had been throughout the 1970s. By the end of the decade, however, CLS literature<br />
had grown <strong>to</strong> a considerable degree and its theories had become more diversi<strong>fi</strong>ed and<br />
sophisticated.<br />
Critical legal scholarship had come a long way from the u<strong>to</strong>pian idealism of the<br />
early 1960s <strong>to</strong> the pessimism of the late 1970s. The question was not so much whether<br />
the courts ought <strong>to</strong> promote certain values and policies, but rather how these values and<br />
policies should or could be de<strong>fi</strong>ned in the <strong>fi</strong>rst place. The nihilism of the 1970s stressed<br />
the impossibility of determining the content of law and rights. As Arthur Leff argued,<br />
neither critical nor any other positivist legal theory had de<strong>fi</strong>ned the basis of law, which<br />
was always arbitrary and open <strong>to</strong> discussion. 524 Traditional legal scholarship, whether<br />
conservative or liberal, often sought <strong>to</strong> de<strong>fi</strong>ne a de<strong>fi</strong>nite basis for rights, but the critical<br />
scholars denied the possibility of such a basis. Critical legal scholarship, as distinguished<br />
from the nihilism of Leff, however, sought <strong>to</strong> point out the ways legal structures<br />
and consciousness limited the freedom of choice. Nevertheless, critical scholars<br />
struggled against the general trend <strong>to</strong>wards a rational basis for modern law.<br />
Despite the fact that the nucleus of CLS was theoretical criticism, critical scholars<br />
also focused on practical matters with a more constructive approach. Since legal scholars<br />
had accepted that their profession had been one fac<strong>to</strong>r in allowing the economy <strong>to</strong><br />
rule society, 525 they had <strong>to</strong> struggle against the traditional norms. The critical insights,<br />
however, forced them <strong>to</strong> seek the solutions outside the conventional boundaries of legal<br />
reform. In any event, fundamental reforms were needed; for instance, with respect <strong>to</strong><br />
legal aid. 526 Richard Abel, who had previously analyzed the structures of the legal sys-<br />
522 Al Katz, Studies in Boundary Theory: Three Essays in Adjudication and Politics, 28 Buffalo Law<br />
Review 383–435 (1979). Katz’s boundary theory and Kennedy’s fundamental contradiction are very close<br />
<strong>to</strong> each other. In fact, Kennedy’s theory was influenced by the boundary theory. Kennedy wrote that his<br />
essay on the fundamental contradiction was “intended <strong>to</strong> be a ‘study in boundary theory’” in Katz’s sense.<br />
(Kennedy 1979, supra n. 513 at n. 5). On certain occasions, CLS scholars were influenced by each other’s<br />
writings. An irony is, however, that the fundamental contradiction is a well-known concept whereas<br />
boundary theory is far less familiar <strong>to</strong> legal scholars. Alan Hunt writes that Katz “has precisely the same<br />
theoretical structure as that advanced by Kennedy,” and therefore “I do not intend <strong>to</strong> examine it separately.”<br />
(Hunt 1986, supra n. 471 at n. 46.)<br />
523 John Henry Schlegel, Introduction, 28 Buffalo Law Review 203, 203 (1979). These notions might<br />
have been written by Katz. (See Duxbury 1995, supra n, 42 at 467 n. 273.)<br />
524 Arthur Allen Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke Law Journal 1229–1249.<br />
525 David M. Trubek, Book Review [Balancing the Scales of Justice], 1977 Wisconsin Law Review 303,<br />
304.<br />
526 Gary Bellow & Jeanne Kettleson, From Ethics <strong>to</strong> Politics: Scarcity and Fairness in Public Interest<br />
Practice, 58 Bos<strong>to</strong>n University Law Review 337–390 (1978).<br />
131
tem, noted that redistribution of legal services was often inef<strong>fi</strong>cient and, in addition,<br />
sometimes contributed <strong>to</strong> the preservation of the myth that social justice could be obtained<br />
under capitalism. Reforms thus required fundamental analysis and consideration,<br />
since the problems of social inequalities were within the structures of society and<br />
law. 527 William Simon, on the other hand, criticized the ideology of advocacy which, he<br />
argued, alienated the parties from the process, furthered social inequality, and helped <strong>to</strong><br />
maintain the status quo. He concluded that advocacy should pay attention <strong>to</strong> ethics and<br />
the individuality of others so that dispute-resolution would be closer <strong>to</strong> the people and<br />
promote social equality and justice. 528<br />
As the general trend in alternative legal scholarship and the profession was <strong>to</strong>ward<br />
an alternative dispute resolution, critical scholars also emphasized research in<strong>to</strong> and<br />
reform of social and legal structures, because the legal system, even in its most liberal<br />
sense, was seen <strong>to</strong> be constrained by the dominant ideology and thus excluded profound<br />
changes. In these cases, however, critical legal scholarship was often constructive and<br />
provided alternatives for the legal system even though its premises were based on radical<br />
criticism.<br />
A major concern of the critical scholars was legal education, which was still<br />
haunted by the same problems that had haunted it for the whole century. 529 Despite the<br />
reforms of the 1960s, case books dominated the curriculum, 530 legal education lacked a<br />
thorough analysis of the relationship between law and society and therefore conformed<br />
<strong>to</strong> the dominant ideology, 531 and it focused mostly on abstract skills which promoted<br />
social inequalities. 532 To make good lawyers, the critics argued, students should be prepared<br />
with theoretical training and with a “wide range of his<strong>to</strong>rical, socio-economic, and<br />
political literature” as well as “diverse modes of political analysis and argument.” 533 Of<br />
course, legal education was a wider problem in the late 1970s, 534 not just a concern of<br />
the critics, and there were scholars favoring a more traditional education. 535 Nevertheless,<br />
problems of legal education were the same as they were almost two decades, even<br />
half a century earlier, and the responses there<strong>to</strong> were still basically the same. While the<br />
527 Richard L. Abel, Socializing the Legal Profession: Can Redistributing Lawyer’s Services Achieve<br />
Social Justice? 1 Law & Policy Quarterly 5, 7–15, 19–24, 27–28, 36–41 (1979).<br />
528 William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wisconsin<br />
Law Review 29, 36–38, 42–46, 52, 56, 74–89, 94–102, 112–119, 130–144.<br />
529 Wythe Holt, A Radical Law School, 2 ALSA Forum 25, 25 (2/1977).<br />
530 Karl E. Klare, Contracts Jurisprudence and the First-Year Casebook, 54 New York University Law<br />
Review 876, 876 (1979).<br />
531 Jerold S. Auerbach, What has the Teaching of Law <strong>to</strong> Do with Justice? 53 New York University Law<br />
Review 457, 457–458, 466–467, 472–474 (1978).<br />
532 Rand E. Rosenblatt, Supporting Advocacy for Social Change, 53 New York University Law Review<br />
623, 624 (1978).<br />
533 Klare 1979, supra n. 530 at 895.<br />
534 See, e.g., Francis A. Allen, The Causes of Popular Dissatisfaction with Legal Education, 62 A.B.A<br />
Journal 447–450 (1976). See also the symposium in 53 New York University Law Review 293–676<br />
(1978).<br />
535 Francis A. Allen, The New Anti-Intellectualism in American Legal Education, 28 Mercer Law Review<br />
447, 454–461 (1977).<br />
132
tradition stressed doctrine, critical scholars argued that lawyers did not understand the<br />
function of their profession.<br />
The conflict between traditional and radical legal education became most obvious<br />
in Wythe Holt’s radical polemic. Holt argued that since legal education was a part of the<br />
dominant power structure, there was a need for a radical law school that would “expose<br />
the myth of law” 536 and which would “shake off all the shackles of liberal ethos” 537 and<br />
the “harsh arbitrariness of the so-called Socratic method.” 538 Radical law school would<br />
have no formal requirements or hierarchies, and the students would be educated <strong>to</strong> understand<br />
the connection between law and society, think authentically, and decide the<br />
course of their profession without indoctrination in<strong>to</strong> modern society. 539 Holt’s criticism<br />
reflected the earlier responses <strong>to</strong> the crisis of legal education but it radicalized them. It<br />
was also inspired by the radical thought of the 1970s that stressed the ideological character<br />
of law and therefore encouraged radical reforms. Although the majority of the profession<br />
did not recognize the crisis of law of the early 1970s even by the end of the decade,<br />
it was still existent for the critical scholars who were also becoming more radical<br />
about it. On certain occasions, the critical scholars were very radical, whereas on others<br />
they modi<strong>fi</strong>ed the radical argument <strong>to</strong> suit a more constructive approach.<br />
Besides the legal profession and education, the critical scholars also dealt with<br />
other problems. For instance, in an empirical study on the court structure, Wolf<br />
Heydebrand argued that they functioned in a social, political, and economic context, and<br />
the changes in the structures of the context were reflected as changes in the function of<br />
the courts. 540 Rosenblatt continued his criticism of the health-care system by pointing<br />
out that the gaps between the regulation and the practice followed from structural biases.<br />
541 The structures of the administration of justice were naturally an important object<br />
of research, because the argument was that law in action could not be unders<strong>to</strong>od without<br />
understanding the context of the action. Although the premises were basically the<br />
same, the approaches varied. In the respects dealt with here, Heydebrand’s analysis was<br />
closer <strong>to</strong> critical law and society scholarship whereas Rosenblatt's article was more of a<br />
structural criticism.<br />
Criticism of law was moving from the simple demonstration of the indeterminacy<br />
of law <strong>to</strong> analysis of the origins and nature of the problem and the possibility of change.<br />
Janet Lindgren analyzed the structure of judicial decision-making which, she claimed,<br />
included an inherent choice, but the theories and values on which the choice was based<br />
were never articulated. On the contrary, the basis of decision-making was assumed <strong>to</strong> be<br />
536 Holt 1977, supra n. 529 at 50.<br />
537 Id. at 30.<br />
538 Id. at 40.<br />
539 Id. at 28–50. Holt’s radical proposal recalled the radical spirit of the 1970s. In addition, it resembles<br />
that of Duncan Kennedy. (See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A<br />
Polemic Against the System (New York: New York University Press 2004) (1983)).<br />
540 Wolf V. Heydebrand, The Context of Public Bureaucracies: An Organizational Analysis of Federal<br />
District Courts, 11 Law & <strong>Society</strong> Review 759–821 (1977).<br />
541 Rand E. Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 Yale<br />
Law Journal 243–336 (1978).<br />
133
given, although it was, in fact, chosen. Her alternative theory related the public and the<br />
individual interests <strong>to</strong> the particular interests of a person in a particular case, and the<br />
decision was <strong>to</strong> be made directly for the parties because courts determined the special<br />
and particular meaning of the general decision of the legisla<strong>to</strong>r. 542 Lindgren’s analysis<br />
reflected the impossibility of giving a precise meaning <strong>to</strong> the law and choosing between<br />
conflicting alternatives. However, it was also an effort <strong>to</strong> show that critical premises<br />
could function as a basis for alternative doctrines.<br />
In addition, critical scholars tackled many contemporary legal problems from a<br />
critical yet constructive perspective. They argued, for instance, that judicial decisions<br />
had undermined the possibility of prison reform and authorized discrimination within<br />
the processes of prison administration, 543 tax deductions in fact helped the rich although<br />
the tax system ought <strong>to</strong> redistribute wealth, 544 juries ought <strong>to</strong> be composed of people<br />
with the same backgrounds as the parties <strong>to</strong> the case <strong>to</strong> guarantee understanding of the<br />
circumstances, 545 and that the connection between society and jurisprudence had contributed<br />
<strong>to</strong> the uncertainty of the legal protection of racial equality. 546 Critical scholarship<br />
always concentrated on the vagueness of doctrine and on the gap between law in<br />
books and law in action which followed from the argument that law was conditioned by<br />
social structures and consciousness. On some occasions, these theoretical premises were<br />
used <strong>to</strong> construct alternative theories, doctrines, and models for law and jurisprudence.<br />
Hard-core critical legal scholarship was not often constructive, but the periphery was,<br />
even though they shared the basic assumptions on the theoretical basis.<br />
The crisis of law that was obvious in the mid-1960s and became widely acknowledged<br />
at the turn of the decade continued till the end of the 1970s. At the same time,<br />
critical legal scholarship changed from realistic critique and sociological legal studies <strong>to</strong><br />
fundamental criticism and philosophical critical theory. It had also acquired a central<br />
organization, the CLS movement, which was developing its own identity and establishing<br />
a position within the <strong>fi</strong>eld of jurisprudence. The 1970s was the formative period of<br />
CLS, but it kept expanding and transforming throughout the 1980s. Before analyzing<br />
the critical legal scholarship of the 1960s and 1970s his<strong>to</strong>rically, I will extend our scope<br />
for a bit <strong>to</strong> fully understand the dynamics of critical legal thought. In the following two<br />
sections, I will lay out the basic outlines of critical legal scholarship on the problems of<br />
race and gender. These were problems that the legal scholars tackled in the 1960s and<br />
1970s, were submerged in<strong>to</strong> the general critical legal scholarship in the late 1970s, and<br />
developed in<strong>to</strong> individual theories in the 1980s.<br />
542 Janet S. Lindgren, Social Theory and Judicial Choice: Damages and Federal Statutes, 28 Buffalo Law<br />
Review 711, 711–714, 179–727, 749–750, 754–763 (1979).<br />
543 Elizabeth Alexander, The New Prison Administra<strong>to</strong>rs and the Court: New Directions in Prison Law,<br />
56 Texas Law Review 963–1008 (1978).<br />
544 Mark Kelman, Personal Deductions Revisited: Why They Fit Poorly in an “Ideal” Income Tax and<br />
Why They Fit Worse in a Far from Ideal World, 31 Stanford Law Review 831–883 (1979).<br />
545 Lewis H. LaRue, A Jury of One’s Peers, 33 Washing<strong>to</strong>n and Lee Law Review 841–876 (1976).<br />
546 Mor<strong>to</strong>n J. Horwitz, The Jurisprudence of Brown and the Dilemmas of Liberalism, 14 Harvard Civil<br />
Rights-Civil Liberties Law Review 599–613 (1979).<br />
134
3.2.3 The emergence of the Critical Race Theory<br />
The central point in Critical Race theory is the element of color in law. 547 The problem<br />
of race in America originates from the time of slavery, and hence racism and racial inequality<br />
were one of the most pressing social problems in the United States in the twentieth<br />
century. Thus, <strong>to</strong>o, the civil rights movement that escalated in the 1960s was one of<br />
the most important elements of the decade. Besides the civil rights struggle, race consciousness<br />
within various academic disciplines had developed during the twentieth century,<br />
548 and enthusiastic black students who had entered the law schools in the 1960s<br />
and 1970s were willing <strong>to</strong> adapt <strong>to</strong> the critical atmosphere of the turbulent university<br />
and learn from the methods of critical scholarship. 549 A central tenet for them was, however,<br />
the assumption that formal equality reinforced racist attitudes. The evolution of<br />
race consciousness in this respect was a response <strong>to</strong> the conservative atmosphere and<br />
emphasis on the color-blindness of law. 550 Thus, Critical Race Theory (CRT) emerged<br />
“in the mid-1970s with the realization that the Civil Rights Movement of the 1960s had<br />
stalled and that many of its gains, in fact, were being rolled back.” 551<br />
The roots of critical race theory are in the mid-1970s, although the theory as such<br />
developed only in the early 1980s. 552 The increasing scholarship on the relationship<br />
between race and law with the civil rights movement in the 1960s 553 also contributed <strong>to</strong><br />
the general awareness of the race problem. However, people of color were not always<br />
pleased with the civil rights movement because they thought it did not completely understand<br />
their problems. 554 At the beginning of the 1970s, African American scholars<br />
noted that, despite the promises of the 1960s, society had not been able <strong>to</strong> transform<br />
547 Cheryl I. Harris, Critical Race Studies: An introduction, 49 UCLA Law Review 1215, 1216–1217<br />
(2002); Minda 1995, supra n. 42 at 167. His<strong>to</strong>ry and development of Critical Race Theory (CRT) have<br />
been of interest in a vast amount of literature. See, e.g., Kimberlé Williams Crenshaw, Twenty Years of<br />
Critical Race Theory: Looking Back <strong>to</strong> Move Forward, 43 Connecticut Law Review 1253–1353 (2011);<br />
Kimberlé Williams Crenshaw, The First Decade: Critical Reflections, or, “A Foot in the Closing Door”,<br />
49 UCLA Law Review 1343–1372 (2002); Richard Delgado, Liberal McCarthyism and the Origins of<br />
Critical Race Theory, 94 Iowa Law Review 1505–1545 (2009); Athena D. Mutua, The Rise, Development,<br />
and Future Directions of Critical Race Theory and Related Scholarship, 84 Denver University Law<br />
Review 329–394 (2006). See also the symposium on CRT in 94 Iowa Law Review 1497–1701 (2009).<br />
548 Crenshaw 2011, supra n. 547 at 1257.<br />
549 Delgado 2006, supra n. 547 at 1515–1518, 1533–1543.<br />
550 Mutua 2006, supra n. 547 at 334–337.<br />
551 Richard Delgado and Jean Stefancic,: Critical Race Theory: An Annotated Bibliography, 79 Virginia<br />
Law Review 461, 461 (1993). The article contains a comprehensive bibliography of CRT up till 1993.<br />
552 The name “critical race theory” was created at the “New Developments in Race and Legal Theory”<br />
convention, held in 1989. (Crenshaw 2002, supra n, 547 at 1359–1361.) Development of critical race<br />
consciousness within the law schools and the emergence of race discourse within the Critical Legal Studies<br />
Movement in the early 1980s are analyzed in Crenshaw 2002, id. at 1344–1359; Crenshaw 2011,<br />
supra n. 547 at 1264–1297.<br />
553 Bullock 1961, supra n. 390; Brest 1966, supra n. 194; McCarthy & Stevenson 1968, supra n. 195;<br />
Arthur Larson, The New Law of Race Relations, 1969 Wisconsin Law Review 470–524.<br />
554 Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 University<br />
of Pennsylvania Law Review 561, 566–573 (1984); Minda 1995, supra n. 42 at 168.<br />
135
itself. A journal was thus needed <strong>to</strong> focus on the current problems of the blacks, and the<br />
Black Law Journal was founded in 1971, focusing on scholarship on legal problems and<br />
race. 555<br />
Critical Race theory developed parallel <strong>to</strong> CLS. There was the increased civil<br />
rights activism and scholarship on the one hand, and the continuing social inequality of<br />
racial minorities despite the civil rights legislation on the other. In addition, there was<br />
the critical scholarship emphasizing the ideological function of law. Race consciousness<br />
had arisen within scholarship, and the African American scholars were highly interested<br />
in legal problems, especially as the civil rights movement was fading. Scholars interested<br />
in civil rights issues and wanting <strong>to</strong> explain why the efforts had failed had much <strong>to</strong><br />
deal with, and they could use the methods of critical legal theory in explaining the situation.<br />
Critical race theory thus borrowed from other critical disciplines of the time, such<br />
as critical legal studies and critical criminology, and applied these approaches <strong>to</strong> the<br />
problems of race. In the opinion of the critical race theorists, it was not simply the liberal<br />
ideology that dis<strong>to</strong>rted the images of reality, it was also the racial aspect.<br />
The fundamental concerns of CLS and critical race scholars were very close <strong>to</strong><br />
each other. Indeed, at <strong>fi</strong>rst, critical scholars interested in race problems could participate<br />
in the general critical legal scholarship, but soon realized that their white colleagues<br />
were often looking at the problems from a non-minority perspective. 556 Derrick Bell, the<br />
most signi<strong>fi</strong>cant of the early race theorists, who was familiar with the critical approaches,<br />
noticed the systematic racial bias of law in the early 1970s and argued that the traditional<br />
scholarship had denied the fact that the aspects of slavery were still present. 557 He<br />
also noted that discrimination within the judicial process was so pervasive that it was<br />
impossible for blacks <strong>to</strong> receive fair treatment. 558 Whereas traditional civil rights scholarship<br />
had faith in legal doctrine and the courts in combating racial discrimination, 559<br />
critical race scholars were more pessimistic about the ability of law <strong>to</strong> bring improvement<br />
and went beyond the doctrine in their analysis of the legal situation. According <strong>to</strong><br />
Bell, the administration of justice was unable <strong>to</strong> promote equality 560 and legal reforms<br />
were merely statements in the interests of white people <strong>to</strong> make the situation look better.<br />
561 Furthermore, he continued, legal remedies were modest attempts in the struggle<br />
555 Edi<strong>to</strong>rial, 1 Black Law Journal 3–4 (1971).<br />
556 Mutua 2006, supra n. 547 at 343–348; Crenshaw 2011, supra n. 547 at 1263–1264.<br />
557 Derrick A. Bell Jr., Black Faith in a Racist Land: A Summary Review of Racism in American Law, 17<br />
Howard Law Journal 300–318 (1972).<br />
558 Derrick A. Bell Jr., Racism in American Courts: Cause for Black Disruption or Despair? 61 California<br />
Law Review 165–203 (1973).<br />
559 See, e.g., Paul Brest, In Defense of the Antidiscrimination Principle, 90 Harvard Law Review 1, 52–54<br />
(1976).<br />
560 Derrick A. Bell Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation<br />
Litigation, 85 Yale Law Journal 470, 514–516 (1976).<br />
561 Derrick A. Bell Jr., Racial Remediation: An His<strong>to</strong>rical Perspective on Current Conditions, 52 Notre<br />
Dame Lawyer 5–29 (1976).<br />
136
for equality because law had no serious impact on reality and could be interpreted <strong>to</strong><br />
mean various things. 562<br />
Race consciousness was the most important thing for the critical legal scholars<br />
who were interested in race problems. Just as the critical legal scholarship stressed the<br />
fact that law rei<strong>fi</strong>ed reality <strong>to</strong> seem rational, critical race theory stressed that the traditional<br />
legal consciousness created the illusion of color-blind law and a racially equal<br />
society. This, however, was regarded as a mere illusion, since the irrationality and indeterminacy<br />
of law functioned <strong>to</strong> produce systematic discrimination against racial minorities<br />
because of the inherent ideological and structural biases. For the race theorists, racism<br />
in law was much more than few discriminating practices and some bias within the<br />
administration of justice; it pervaded the whole system. Therefore, one had <strong>to</strong> study the<br />
his<strong>to</strong>rical and social context of particular circumstances in order <strong>to</strong> understand the dynamics<br />
of racism.<br />
As the vagueness of legal remedies intended <strong>to</strong> improve racial inequality became<br />
more obvious in the late 1970s, critical race theorists also turned <strong>to</strong>ward pessimism, and<br />
began <strong>to</strong> consider the legitimizing aspect of law. Alan Freeman argued that antidiscrimination<br />
law was constructed from the perspective of the perpetra<strong>to</strong>r instead of the victim,<br />
and therefore paid no due attention <strong>to</strong> the circumstances of the victim which, however,<br />
were crucial. Thus, the law legitimated the prevailing situations and made things<br />
appear as if discrimination and inequality were being dealt with. 563 Just like the critical<br />
legal scholars, critical race theorists also argued that law rei<strong>fi</strong>ed reality <strong>to</strong> appear as if<br />
improvement was achieved. The critical argument in this regard was that law shaped the<br />
consciousness of the people <strong>to</strong> believe in equality. Critical race theorists simply turned<br />
this Marxist argument <strong>to</strong> concern the problems of race.<br />
Critical race theory arose out of the dynamics of race problems in America and the<br />
rising critical thought. Race problems and the law had been pressing questions for a<br />
century, and the postwar years had only intensi<strong>fi</strong>ed them. What the 1960s changed was<br />
that there was a legal doctrine invalidating racial segregation and civil rights acts prohibiting<br />
discrimination. There were also more African Americans in the universities<br />
receiving higher education and prepared <strong>to</strong> do scholarly work. The 1960s had been a<br />
time of great expectations for the African American but, by the beginning of the 1970s,<br />
those hopes had proven false. Scholarship had pointed out the fact that the administration<br />
of justice discriminated against the blacks, but, according <strong>to</strong> the critical race scholars,<br />
the traditional civil rights scholarship focused <strong>to</strong>o much on the formal aspects of the<br />
problem which was not a solution for the minorities experiencing the inequality. Therefore,<br />
racial problems demanded more explicit and critical research. The critical legal<br />
scholarship rising at the time provided a temporary solution but the critical scholarship<br />
was not suf<strong>fi</strong>ciently concerned with racial inequality. In the 1970s, critical race theorists<br />
562 Derrick A. Bell Jr., Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 California<br />
Law Review 3, 16–19 (1979).<br />
563 Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical<br />
Review of Supreme Court Doctrine, 62 Minnesota Law Review 1049, 1051–1057 (1979).<br />
137
still cooperated with CLS. The frustration came in the 1980s when scholars wanted <strong>to</strong><br />
develop a theory that would take the problems of race seriously in legal analysis.<br />
3.2.4 The rise of feminist jurisprudence<br />
Another important branch of critical legal theory also arose out of the turbulence of the<br />
1960s, namely, feminist jurisprudence. The legal status of women was long deprived.<br />
After a long and fluctuating struggle <strong>to</strong>ward equality between the sexes, the social uprising<br />
of the 1960s brought new forms of women’s movement. Women’s consciousness<br />
of their role in society was rising during the postwar decades, 564 but it was not until the<br />
1960s that the large-scale women’s movement appeared. 565 Women’s activism brought<br />
changes in the legislation concerning women’s rights in the 1960s and especially in the<br />
1970s with the help of women’s rights litigation. 566 Women had also had dif<strong>fi</strong>culty in<br />
obtaining legal education, but by the early 1970s they had full access <strong>to</strong> all law schools<br />
in America, which meant improved opportunities for a legal career both in a practice<br />
and in academia. 567 Discrimination had caused trouble for women in beginning a career,<br />
which, partially inspired by the civil rights struggle, had increased the critical consciousness<br />
of women. 568 Thus, inspired by the political movement, feminist jurisprudence<br />
was developed in the universities during the 1970s. 569<br />
Women’s status in the society, academia, and professional life was poor, and as<br />
women became more aware of this fact they started <strong>to</strong> struggle against inequality between<br />
the sexes. The rise of the women’s movement in the 1960s increased the concern<br />
for equality, and encouraged studies on the legal status of women in society 570 and within<br />
the legal profession. 571 As the critical attitude <strong>to</strong>ward the neutrality of law in general<br />
intensi<strong>fi</strong>ed, critical feminists noted that “[t]he popular assumption that the law is even-<br />
564 A major fac<strong>to</strong>r in the birth of modern feminism was The Second Sex by Simone de Beauvoir, published<br />
in 1948. It was translated in<strong>to</strong> English, although poorly, and published in 1953 and became very<br />
influential in the United States as well. (Rosen 2003, supra n. 25 at 56–58.) Blanche Crozier had criticized<br />
sex discrimination in the 1930s. (Blanche Crozier, Constitutionality of Discrimination Based on Sex, 15<br />
Bos<strong>to</strong>n University Law Review 723–755 (1935).)<br />
565 Deporah L. Rhode, The “No Problem” Problem: Feminist Challenges and Cultural Change, 100 Yale<br />
Law Journal 1731, 1745 (1991).<br />
566 Ellen Marrus and Laura Oren, Feminist Jurisprudence and Child-Centered Jurisprudence: His<strong>to</strong>rical<br />
Origins and Current Developments, 46 Hous<strong>to</strong>n Law Review 671, 680–683 (2009).<br />
567 Donna Fossum, Women in the Legal Profession: A Progress Report, 67 Women Lawyer’s Journal 1–5<br />
(4/1981).<br />
568 Audrey Wolfson La<strong>to</strong>urette, Sex Discrimination in the Legal Profession: His<strong>to</strong>rical and Contemporary<br />
Perspectives, 39 Valpraiso University Law Review 859, 883–884 (2005).<br />
569 Marrus and Oren 2009, supra n. 566 at 674; Minda 1995, supra n. 42 at 128–130.<br />
570 Leo Kanowicz, Women and the Law: The Un<strong>fi</strong>nished Revolution (Albuquerque: The University of<br />
New Mexico Press 1969). See also Ruth B. Cowan, Women’s Rights through Litigation: An Examination<br />
of the American Civil Liberties Union Women’s Rights Project, 1971–1976, 8 Columbia Human Rights<br />
Law Review 373, 377 (1976).<br />
571 James J. White, Women in the Law, 65 Michigan Law Review 1051–1122 (1967); Doris L. Sassower,<br />
The Legal Profession and Women’s Rights, 25 Rutgers Law Review 54–66 (1970).<br />
138
handed does not hold true in the area of women’s rights.” 572 The poor status of women<br />
became apparent particularly <strong>to</strong> those going for a career in the male-dominated business.<br />
A Harvard graduate, Brenda Fasteau, noted that only after she had entered the<br />
Harvard Law School did she “became fully aware of the extent <strong>to</strong> which women are<br />
oppressed in this country.” 573 Critical scholarship was thus an attractive choice for those<br />
who wanted <strong>to</strong> go beyond the problems and analyze their causes.<br />
Scholarship on women’s rights intensi<strong>fi</strong>ed in the 1970s. The Women’s Rights Law<br />
Reporter was founded in 1971 and the Harvard Women Law Journal in 1978. 574 In the<br />
late 1970s, female scholars participated actively in the work of critical legal studies.<br />
However, as were the critical race scholars, critical scholars on the status of women also<br />
became frustrated with the male aspects of CLS. 575 In general, “feminist radicals challenged<br />
not only liberalism but also the gender hierarchies imbedded in both theory and<br />
practice on the Left,” 576 which was also what they did in legal scholarship. Feminist<br />
jurisprudence attacked legal formalism and the apparent neutralism that were seen <strong>to</strong><br />
protect and reinforce male domination. 577 For feminist jurisprudence, <strong>to</strong>o, law was an<br />
aspect of power, but this power was dominated by men. At its heart were the presumptions<br />
that, <strong>fi</strong>rst, society was dominated by men and therefore gender was more a social<br />
than biological construction, and second, that because women were subordinated <strong>to</strong> men<br />
in society, law protected and reproduced this subordination.<br />
From the beginning, feminist jurisprudence struggled <strong>to</strong>ward equality between the<br />
sexes. Women’s rights scholars had noted the ambiguity in the legal status of women<br />
and wanted <strong>to</strong> end the discrimination by creating a doctrine and praxis of equal treatment.<br />
578 An important <strong>to</strong>pic for women’s rights scholars was an equal rights amendment<br />
<strong>to</strong> the Constitution. 579 They argued that the discrimination against women both in law<br />
and in practice was so pervasive that constitutional reform was needed, 580 and that gen-<br />
572 Faith A. Seidenberg, The Submissive Majority: Modern Trends in the Law Concerning Women’s<br />
Rights, 231, in Black (ed.) 1971, supra n. 178 at 231–239.<br />
573 Brenda Fasteau, Law and Women, 239, in Black (ed.) 1971, supra n. 179 at 239–248.<br />
574 See Why a Women's Law Journal, 1 Harvard Women’s Law Journal viii (1978). Women Lawyers<br />
Journal had, of course, already been founded in 1911. On the rise of feminist legal scholarship, see<br />
Katharine T. Bartlett, Feminist Legal Scholarship: A His<strong>to</strong>ry through the Lens of the California Law<br />
Review, 100 California Law Review 381–429 (2012).<br />
575 Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education, or “The<br />
Fem-Crits Go <strong>to</strong> Law School”, 38 Journal of Legal Education 61, 63–64, n. 7 (1988).<br />
576 Sara M. Evans, Beyond Declension: Feminist Radicalism in the 1970s and 1980s, 57, in Gosse and<br />
Moser (eds.) 2003, supra n. 31 at 52–66.<br />
577 Marrus and Oren 2009, supra n. 566 at 682–683.<br />
578 Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34<br />
George Washing<strong>to</strong>n Law Review 232, 237–241 (1965).<br />
579 Brown; Emerson; Falk; Freedman 1971, supra n. 368. See also the symposium on the Equal Rights<br />
Amendment in 6 Harvard Civil Rights-Civil Liberties Law Review 215–287 (1971).<br />
580 Norman Dorsen and Susan Deller Ross, The Necessity of a Constitutional Amendment, 6 Harvard<br />
Civil Rights-Civil Liberties Law Review 216, 216–221 (1971). The most deprived were the African<br />
American women because they were under double discrimination. (Pauli Murray, The Negro Woman’s<br />
Stake in the Equal Rights Amendment, 6 Harvard Civil Rights-Civil Liberties Law Review 253, 253–254<br />
(1971).)<br />
139
der was not a necessary legal category for individuals. 581 Traditional scholars who supported<br />
equality but were skeptical of the equal rights amendment opined that differentiated<br />
treatment of the genders was sometimes reasonable and amending the Constitution<br />
would only cause further problems. 582 Feminist theory was still optimistic about reforms<br />
through law and thus pushed a radical reform. Traditional scholars, on the other hand,<br />
were concerned about doctrine and were therefore modest regarding reform. Besides<br />
illuminating the rise of women’s consciousness, the controversy over the equal rights<br />
amendment reflected the split between the traditional and the critical points of view,<br />
since the critical scholars appealed <strong>to</strong> the ideological and constitutive elements of law.<br />
To the critical feminist scholars, the problem of gender was of such fundamental<br />
importance that only extreme measures would do. As Barbara Cavanagh argued, the<br />
subordinated status of women was so deep within the structures of the society that the<br />
law protected and reproduced the images of women as weak and fragile people, destined<br />
<strong>to</strong> child-rearing and house-work and therefore incapable of doing the men’s work. Thus,<br />
legal changes were needed <strong>to</strong> delegitimize the repression and <strong>to</strong> contribute <strong>to</strong> the cultural<br />
change. 583 The feminists did not, however, take law at face value. Even the laws<br />
meant <strong>to</strong> protect women were often regarded as paternalistic measures upholding the<br />
traditional image of women, or their influence was seen <strong>to</strong> be undermined in practice. 584<br />
His<strong>to</strong>rical, social, cultural, and psychological data were often used <strong>to</strong> point out the pervasive<br />
fac<strong>to</strong>rs behind the law that prevented change having the desired effects. The emphasis<br />
on the context was essential because the problems were not in the letter of the<br />
law. Critical feminist legal scholarship utilized the recent trends in legal scholarship <strong>to</strong><br />
analyze the deep structures of law.<br />
Constitutional analysis was also an important <strong>to</strong>pic for the feminist scholars because<br />
in the 1970s the Supreme Court handed down many decisions concerning sex as a<br />
reasonable criterion for different standards. 585 Feminist scholars criticized the Supreme<br />
581 Thomas I. Emerson, In Support of the Equal Rights Amendment, 6 Harvard Civil Rights-Civil Liberties<br />
Law Review 225, 225 (1971).<br />
582 Paul A. Freund, The Equal Rights Amendment is not the Way, 6 Harvard Civil Rights-Civil Liberties<br />
Law Review 234, 234–235, 238, 240–241 (1971); Philip B. Kurland, The Equal Rights Amendment:<br />
Some Problems of Construction, 6 Harvard Civil Rights-Civil Liberties Law Review 243, 243, 246–247,<br />
249–252 (1971).<br />
583 Barbara Kirk Cavanagh, “A Little Dearer than His Horse”: Legal Stereotypes and the Feminine Personality,<br />
6 Harvard Civil Rights-Civil Liberties Law Review 260, 260–271, 278, 284–287 (1971).<br />
584 Dorsen and Ross 1971, supra n. 580, at 218; Cavanagh 1971, supra n. 583 at 262; Nancy S. Erickson,<br />
Women and the Supreme Court: Ana<strong>to</strong>my Is Destiny, 41 Brooklyn Law Review 209, 212 (1974); Nancy<br />
S. Erickson, Kahn, Ballard, and Wiesenfeld: A New Equal Protection Test in “Reverse” Sex Discrimination<br />
Cases? 42 Brooklyn Law Review 1, 11–12, 53 (1975).<br />
585 See John D. Johns<strong>to</strong>n Jr., Sex Discrimination and the Supreme Court ─ 1971–1974, 49 New York<br />
University Law Review 617–692 (1974); Erickson 1975, supra n. 584; Ruth Bader Ginsburg, Gender and<br />
the Constitution, 44 University of Cincinnati Law Review 1–42 (1975). The literature on the <strong>to</strong>pic is vast<br />
and there is thus no opportunity <strong>to</strong> delve in<strong>to</strong> it any deeper here. The problem, nonetheless, was whether<br />
men and women could be treated differently in any situation. For some, legislative protection of women<br />
was an honest effort <strong>to</strong> improve the situation of women after a long period of inequality, whereas for<br />
others the differentiation of the sexes was a reminiscent of paternalist society. Therefore, opinions could<br />
have gone either way. A liberal judge might have either validated or invalidated “protection” statutes<br />
depending on whether he preferred equal treatment of the sexes or substantive equality between them, but<br />
140
Court for exercising paternalistic notions <strong>to</strong>ward women and refusing <strong>to</strong> attend <strong>to</strong> the<br />
real motives behind the laws or <strong>to</strong> the real-life circumstances of modern society. 586 Feminist<br />
jurisprudence of the 1970s often endorsed formal equality. According <strong>to</strong> the feminists,<br />
although the Court noted “realities”, it did this in a conservative and out-of-date<br />
style. Women were not <strong>to</strong> be treated differently because that upheld the image of women<br />
as housewives. Critical scholars thus favored a doctrine according <strong>to</strong> which gender<br />
would be no basis for classi<strong>fi</strong>cation because it would affect the ideology behind the law.<br />
To the feminists and critical scholars, the problem of discrimination was deeper<br />
than simply in the physical differences between the sexes. In a call for emancipation,<br />
John Johns<strong>to</strong>n noted that law was not supposed <strong>to</strong> coerce people <strong>to</strong> live by some bygone<br />
roles, 587 and in a more radical feminist sense, everything, even sports, was <strong>to</strong> be<br />
integrated under equal rights. 588 Equality, however, required more than changes in doctrine.<br />
It required fundamental changes in law and society, 589 and the aspects of sexbased<br />
discrimination should be included in legal education. 590 Critical feminists had<br />
adopted critical thought and applied it <strong>to</strong> the gender issue. Legal change was considered<br />
as merely one step <strong>to</strong>ward emancipation, and changes in the society and consciousness<br />
were also required.<br />
Scholars considered various legal remedies in seeking equality. As af<strong>fi</strong>rmative action<br />
became important in the late 1970s, scholars of critical gender studies tackled the<br />
issue. They argued that af<strong>fi</strong>rmative action ought <strong>to</strong> be permitted when its purpose was <strong>to</strong><br />
improve the access of women <strong>to</strong> social positions they had dif<strong>fi</strong>culty entering because of<br />
his<strong>to</strong>rical circumstances. 591 Women’s rights were considered <strong>to</strong> be in a need of special<br />
critical scholarship that could understand the problem because old-school realism 592 and<br />
the Supreme Court 593 were indifferent <strong>to</strong> them. By the late 1970s, the critical feminist<br />
thought in law had become obvious. Women felt that traditional theory as well as critical<br />
theory without awareness of gender was insensitive <strong>to</strong> their problems.<br />
in any event he would have supported equality. A conservative judge could have also decided either way<br />
depending on whether he preferred differentiation of the sexes or legal formality. “Protection” could have<br />
therefore been seen <strong>to</strong> mean either promoting equality or paternalism. The problem was that if gender was<br />
a reasonable criterion for distinction, and protection was thus valid, gender could also be used as a criterion<br />
<strong>to</strong> discriminate against women, or at least maintain the image of women in need of protection. The<br />
case was a double-edged sword.<br />
586 Erickson 1974, supra n. 584 at 230, 236–238, 242–255, 260, 278–281; Ruth Bader Ginsburg, Some<br />
Thoughts on Benign Classi<strong>fi</strong>cation in the Context of Sex, 10 Connecticut Law Review 813, 816–818<br />
(1979).<br />
587 Johns<strong>to</strong>n 1974, supra n. 585 at 691–692.<br />
588 Barbara A. Brown and Ann E. Freedman, Sex Averaging and the Equal Rights Amendment, 2 Women’s<br />
Rights Law Reporter 35, 42–46 (1975). The argument was that much of the differences between the<br />
genders derived from social and cultural fac<strong>to</strong>rs. (Id. at 43–47.)<br />
589 Erickson 1975, supra n. 584 at 17–18.<br />
590 Ginsburg 1975, supra n. 585 at 31.<br />
591 Nancy Gertner, Bakke on Af<strong>fi</strong>rmative Action for Women: Pedestal or Cage? 14 Harvard Civil Rights-<br />
Civil Liberties Law Review 173, 209–124 (1979).<br />
592 Erickson 1974, supra n. 584 at 217–218.<br />
593 Gertner 1979, supra n. 591 at 195.<br />
141
Indeed, the problem was pressing because, as the eminent feminist lawyer Nancy<br />
Gertner noted, “distinctions drawn solely on the basis of sex are not treated as wholly<br />
impermissible, as are distinctions drawn solely on the basis of race.” 594 Interest in women’s<br />
rights and gender studies in law had increased in the 1970s, 595 but women still felt<br />
discriminated against as the decade approached its end, and scholars noted problems of<br />
discrimination regarding such matters as pregnancy 596 and work. 597 For the feminists, it<br />
seemed obvious that sex-based discrimination was a pervasive problem that could not<br />
be dealt with in traditional ways.<br />
By the late 1970s, critical feminist jurisprudence had developed greatly. In 1979,<br />
Catharine MacKinnon published her book Sexual Harassment of Working Women, in<br />
which she argued that harassment equated <strong>to</strong> sex-based discrimination and had been<br />
long <strong>to</strong>lerated because of the social and legal structures. 598 Although the response was<br />
not <strong>to</strong>tally uncritical, MacKinnon’s book was a major step in the development of feminist<br />
jurisprudence. 599 Her book was a thoroughgoing critique of ideology since, as was<br />
typical of critical gender studies in law, she pointed out that the contemporary consciousness<br />
was male-based and therefore law could not understand problems of women.<br />
The target was the traditional practices of the societies which were seen <strong>to</strong> produce<br />
harmful effects.<br />
Women, like African Americans, struggled for equality in the 1960s and 1970s.<br />
This struggle was also seen in civil rights legislation, formation of movements, and litigation.<br />
The problem and its legal hindrances also initiated some lively scholarship.<br />
Feminist jurisprudence grew out of the critical scholarship on the legal status of women<br />
and the ambiguity of the legal doctrine on gender issues. According <strong>to</strong> the feminists, the<br />
inequality of the sexes was so pervasive that traditional scholarship simply could not<br />
grasp it, and the roles of the genders were inherent in the structures of the society and<br />
consciousness of the people, thus preventing change and causing ambiguities in law.<br />
The critical feminist scholars sought <strong>to</strong> elaborate theories that could transcend the law<br />
and analyze the fac<strong>to</strong>rs behind it by taking the problem of gender in<strong>to</strong> account. Like<br />
critical race theorists, scholars of the early critical gender studies were often associated<br />
with the critical legal studies movement, but they were disappointed at the male dominance<br />
of that movement <strong>to</strong>o, and were later <strong>to</strong> set up a movement of their own. Both<br />
594 Id. at 181. (Footnote omitted.)<br />
595 See the symposium “Law and the Status of Women” in 8 Columbia Human Rights Law Review 1–412<br />
(1976). The symposium reflects the rise of the global women’s rights consciousness as well as the need<br />
for comparative and cultural studies on the problem.<br />
596 Nancy S. Erickson, Pregnancy Discrimination: An Analytical Approach, 5 Women’s Rights Law Reporter<br />
83–105 (1979).<br />
597 Mary Joe Frug, Securing Job Equality for Women: Labor Market Hostility <strong>to</strong> Working Mothers, 59<br />
Bos<strong>to</strong>n University Law Review 55–103 (1979).<br />
598 Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination<br />
(New Haven: Yale University Press 1979).<br />
599 See Nadine Taub, Book Review [Sexual Harassment of Working Women], 80 Columbia Law Review<br />
1686–1695 (1980).<br />
142
critical race theory and feminist jurisprudence were adaptations of critical thought <strong>to</strong><br />
particular problems.<br />
4 His<strong>to</strong>rical perspectives on CLS<br />
The development of critical legal scholarship from the 1960s <strong>to</strong> the end of the 1970s has<br />
now been analyzed. It should be obvious that the theoretical reorientation and the maturing<br />
of the scholars in the 1970s radicalized sociological jurisprudence and the benevolent<br />
thought of the 1960s. The his<strong>to</strong>rical analysis of the development involves, however,<br />
several aspects, which will all be dealt with in this section. Furthermore, I will review<br />
the conventional accounts of the his<strong>to</strong>ry of CLS in order <strong>to</strong> make a critical analysis and<br />
a synthesis of them. I will point out that we should not reduce CLS <strong>to</strong> any one single<br />
fac<strong>to</strong>r, nor should we criticize it as sheer radicalism. Rather, it should be unders<strong>to</strong>od as<br />
a complicated cultural movement, pursuing an authentic understanding of the law in<br />
both a practical and scholarly sense.<br />
The origins of the CLS movement are in the law school of the 1960s. As Robert<br />
Gordon has written, CLS “started for most of us in the late 1960s or early 1970s out of a<br />
sense of extreme dissatisfaction with our own legal education.” 600 These disappointed<br />
students then wanted <strong>to</strong> <strong>fi</strong>nd alternative ways <strong>to</strong> practice law that would respond better<br />
<strong>to</strong> the inequalities in society. 601 Although it has been argued otherwise, 602 CLS scholars<br />
had a background in the university radicalism of the 1960s which had some resemblance<br />
<strong>to</strong> the style of the critical literature. 603 By the 1970s, there already were radical<br />
blocs in the faculties of the humanities and social sciences, and thus in an institutional<br />
sense, CLS was a collection of young, radical scholars forming a bloc in the law school<br />
600 Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches <strong>to</strong> Law, 15 Florida State University<br />
Law Review 195, 196–197 (1987).<br />
601 Robert W. Gordon, New Developments in Legal Theory, 282–283, in David Kairys (ed.), The Politics<br />
of Law: A Progressive Critique (New York: Pantheon Books 1982), 281–293.<br />
602 Anthony Chase writes that “[t]he frequent characterization of CLS professors as 1960s hippies or radicals<br />
who have gotten tenure in the law school could not be farther off the mark.” (Anthony Chase, A Note<br />
on the Aporias of Critical Constitutionalism, 36 Buffalo Law Review 403, 418 (1987).) This is because<br />
“most leading CLS scholars were either <strong>to</strong>o old or <strong>to</strong>o young in the period of critical resistance <strong>to</strong> the<br />
Vietnam War, about 1967–1972, <strong>to</strong> have been undergraduate college students involved in groups like<br />
Students for a Democratic <strong>Society</strong>.” (Id. at n. 32.) In a sense this is true, but it seems <strong>to</strong> be an overinterpretation.<br />
CLS scholars obviously were not typical “student radicals”, but this does not mean that<br />
they were not identi<strong>fi</strong>ed with the radical spirit of the time. Just because they did not participate in radical<br />
activities does not make them non-radicals. Furthermore, in my opinion the ages between 16 and 32 are<br />
neither <strong>to</strong>o young nor <strong>to</strong>o old <strong>to</strong> participate in radical activities. Perhaps the CLS scholars were not members<br />
of SDS but they might nevertheless have identi<strong>fi</strong>ed with similar causes. Besides, the founding members<br />
of SDS were basically the same age as the early CLS scholars.<br />
603 Maurice J. Holland, A Hurried Perspective on the Critical Legal Studies Movement: The Marx Brothers<br />
Assault the Citadel, 8 Harvard Journal of Law and Public Policy 239, 243–244 (1985); G. Edward<br />
White, The Inevitability of Critical Legal Studies, 36 Stanford Law Review 649, 658–660 (1984).<br />
143
faculty, 604 since it consisted of those radical students who made careers as teachers. 605<br />
Traditionally, law professors were mostly lawyers who taught, but the institutional<br />
changes in the universities led many scholars of other sciences <strong>to</strong> law schools “<strong>to</strong> ful<strong>fi</strong>ll<br />
their academic inclinations as law professors.” 606 <strong>Society</strong> and academia were in turmoil,<br />
but legal education was mostly traditional, and students identifying with the radical<br />
cause felt that it did not conform <strong>to</strong> their notions about justice and right. Some students<br />
might have also been disappointed with the anxious, conservative atmosphere and with<br />
their stressful experiences of the case method.<br />
The critical legal scholarship of the 1970s thus originates from the social circumstances<br />
and radicalism of the 1960s and from the student experiences with legal education.<br />
Whatever the reason, some law students of the 1960s just could not see any rationality<br />
in traditional jurisprudence. When the disappointed students graduated and entered<br />
the faculty, they <strong>to</strong>ok their experiences with them and, determined <strong>to</strong> change the tradition,<br />
they continued their critical enterprise but often found it hard <strong>to</strong> do critical scholarship.<br />
They nevertheless did not want <strong>to</strong> jump on the traditional bandwagon and therefore<br />
continued <strong>to</strong> antagonize it. However, the fact that the origins of the critical legal<br />
scholarship are in the radicalism of the 1960s does not mean that it explains this scholarship<br />
entirely. The bad experiences with legal education, social turbulence, and the<br />
ideological orientation of the critical scholars were only the beginnings of the movement.<br />
Because of the experiences of the 1960s, critical legal scholarship developed from<br />
realist criticism and sociological jurisprudence in<strong>to</strong> radical critique. Even if weakened<br />
after the Second World War, realism had left a permanent mark on American jurisprudence.<br />
Realism was then revised <strong>to</strong> a certain extent, as the interest in sociological and<br />
cultural legal research, and criticism of the society and law, increased in the 1950s and<br />
early 1960s. The tradition of alternative legal scholarship of the 1960s stressed the connection<br />
between law and society but did not challenge the fundamental basis of the tradition<br />
or the society. There was thus a shift in critical thought in the 1970s. As G. Edward<br />
White notes, experiences with the Vietnam War pointed out that consciousness<br />
was more important than expertise. 607 Critical scholars began <strong>to</strong> move away from social<br />
engineering <strong>to</strong> philosophical analysis. As noted by Jaff, the faith in reform was lost because<br />
it did not go <strong>to</strong> the root of the problem. 608 Critical scholars had <strong>to</strong> begin a project<br />
of <strong>to</strong>tal criticism, for, as Bickenbach wrote, “[t]he Realists were concerned <strong>to</strong> change<br />
laws and legal institutions <strong>to</strong> live up <strong>to</strong> the ideal of the rule of law; the CLS-ers [we]re<br />
concerned <strong>to</strong> convince us that the Rule of Law is a political trap we must escape.” 609<br />
Radicals had lost their faith in the system and sought the roots of the problems in the<br />
604 Nathan Glazer, Marxism and the Law School: A Non-Legal Perspective, 8 Harvard Journal of Law<br />
and Public Policy 249, 249 (1985).<br />
605 Gordon 1989, supra n. 237 at 393.<br />
606 Holland 1985, supra n. 603 at 244–245, quotation at 245.<br />
607 White 1984, supra n. 603 at 669–670.<br />
608 Jaff 1984, supra n. 471 at 1145.<br />
609 Jerome E. Bickenbach, CLS and CLS-ers, 9 Queen’s Law Journal 263, 266 (1984).<br />
144
structures of law and society, as well as in the human and legal consciousness. Because<br />
of the loss of faith in the civil rights struggle and the u<strong>to</strong>pian ideals of the 1960s, critical<br />
legal scholarship turned <strong>to</strong>ward the deep structures and <strong>to</strong>tal criticism. This also turned<br />
attention from the reality of law <strong>to</strong> critical analysis of it.<br />
Critical legal scholarship turned <strong>to</strong>ward <strong>to</strong>tal criticism, but the project was dif<strong>fi</strong>cult<br />
and has been one of the most controversial aspects of CLS. Unger writes that “one can<br />
begin <strong>to</strong> imagine the rudiments of a better alternative <strong>to</strong> the liberal doctrine, but this<br />
alternative should not be mistaken for the liberal view set upside down.” 610 Because<br />
many of the radical CLS scholars had not de<strong>fi</strong>ned the elements of the alternative, they<br />
have often been criticized for criticism without offering alternatives. 611 Many CLS<br />
scholars have pointed out that this is not true, 612 and rightfully so, for much of the early<br />
literature relating <strong>to</strong> the movement was in fact reformist. 613 Hard-core CLS was often<br />
mostly critical, but the periphery was not. However, as Richard Fischl has emphasized,<br />
the point of this radical criticism was rather <strong>to</strong> examine the basis of law in order <strong>to</strong> <strong>fi</strong>nd<br />
the potential for alternatives, not <strong>to</strong> provide the alternatives. 614 In a certain sense, critical<br />
legal scholarship followed the trend in Kuhnian paradigm studies, and tried <strong>to</strong> create a<br />
“scienti<strong>fi</strong>c revolution”. Scholarly conventions and the modes of scienti<strong>fi</strong>c observation<br />
were of intellectual interest during these times and naturally influenced the young<br />
scholars who disliked the tradition. Total criticism helped <strong>to</strong> expose the ideology that<br />
lurked beneath the surface of law and also provided a way <strong>to</strong> participate in the discourse<br />
on paradigms.<br />
The turn <strong>to</strong>ward philosophy and <strong>to</strong>tal criticisim distinguished CLS from its predecessors<br />
and from the contemporary critical movements. For instance, CLS has often<br />
been linked <strong>to</strong> realism, 615 but it has also been argued that it was in fact antagonistic <strong>to</strong><br />
realism. 616 The usual account, which seems plausible on the evidence piled up above,<br />
610 Unger 1975, supra n. 301 at 7.<br />
611 Philip E. Johnson, Do You Sincerely Want <strong>to</strong> be Radical? 36 Stanford Law Review 247, 281 (1984).<br />
612 Guyora Binder, Beyond Criticism, 55 University of Chicago Law Review 888, 889 (1988); Mark<br />
Kelman, Trashing, 36 Stanford Law Review 293, 299–300 (1984). See also Ed Sparer, Fundamental<br />
Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal<br />
Studies Movement, 36 Stanford Law Review 509, 511, 568, n. 5, n. 6, n. 161 (1984).<br />
613 See the references in supra n. 612, and see, e.g., Heller 1976, supra n. 291; Rosenblatt 1975, supra n.<br />
318; Atleson 1975, supra n. 320; Lindgren 1979, supra n. 542; Alexander 1978, supra n. 543; Kelman<br />
1979, supra n. 544.<br />
614 Richard Michael Fischl, The Question that Killed Critical Legal Studies, 17 Law & Social Inquiry 779,<br />
802, n. 51, n. 61 (1992). According <strong>to</strong> Fischl, much of the misunderstanding of CLS follows from the fact<br />
that CLS literature has been read with the question, what would you put in its place? in mind. (Id. at 782,<br />
784–785.) CLS was, however, a paradigmatic movement and did not therefore seek an alternative vision.<br />
(Id. at 802.) Thus, many of the accusations that CLS has endorsed a socialist u<strong>to</strong>pia have been constructions<br />
of the critics of CLS rather than of CLS scholars. (Id. at 790–792, 795–805, 810–818.)<br />
615 Russell, for instance, writes that “[CLS] does have a very pronounced ancestral relationship with Legal<br />
Realism.” (Stuart J. Russell, The Critical Legal Studies Challenge <strong>to</strong> Contemporary Mainstream Legal<br />
Philosophy, 18 Ottawa Law Review 1, 5 (1986).) See also Duxbury 1995, supra n. 42 at 424–426.<br />
616 Jeffrey A. Standen, Critical Legal Studies as an Anti-Positivist Phenomenon, 72 Virginia Law Review<br />
983–998 (1986). The argument, in general, is that legal realism was a positivist movement emphasizing<br />
empirical observations, but CLS was an anti-positivist movement stressing the connection between facts<br />
and values and thus had a metaphysical orientation. Therefore, these movements were, in fact, opposed <strong>to</strong><br />
145
goes that CLS radicalized the realist project and turned it from reformism <strong>to</strong> a radical<br />
political agenda. 617 Thus, <strong>to</strong> say that “[i]n many ways CLS is a direct descendant of<br />
American Legal Realism,” 618 means that it was a critical, academic movement with similarities<br />
in methods, purposes, and theories <strong>to</strong> those of realism, but these differed because<br />
the context of the movements was different, and, moreover, the differences between<br />
these movements were noted. 619 According <strong>to</strong> Tushnet, the similarity was that<br />
CLS “<strong>to</strong>o attack[ed] from the left the complacency of the existing center; it <strong>to</strong>o denie[d]<br />
that law is au<strong>to</strong>nomous; it <strong>to</strong>o insist[ed] on the contradictions within the rule system,” 620<br />
but this was “not what the Realists actually did, but what they should have done had<br />
they carried out the implications of their insights.” 621<br />
CLS was an heir of realism in a sense, but the differences were obvious and the<br />
inheritance involved the movement more than the theory. 622 They both were critical<br />
academic movements, attacking the traditional profession and challenging the dominant<br />
paradigm. Realism was not particularly influential, but it had <strong>to</strong> be taken in<strong>to</strong> account<br />
because of its legacy for legal scholarship. Scholars did not become enlightened after<br />
each other. In many ways this is true, but it reduces CLS <strong>to</strong> one theoretical premise and does not take in<strong>to</strong><br />
account the fact that there have been several contradictions and diversi<strong>fi</strong>cations within the movement.<br />
617 ‘Round and ‘Round the Bramble Bush: From Legal Realism <strong>to</strong> Critical Legal Scholarship, 95 Harvard<br />
Law Review 1669, 1677–1681 (1982).<br />
618 Mark Tushnet, Critical Legal Studies: An Introduction <strong>to</strong> its Origins and Underpinnings, 36 Journal of<br />
Legal Education 505, 505 (1986).<br />
619 CLS scholars have interpreted legal realism and noted how they have been construing some arguments.<br />
See Gary Peller, The Metaphysics of American Law, 73 California Law Review 1151, 1226<br />
(1985); Mark Tushnet, Post-Realist Legal Scholarship, 15 Journal of the <strong>Society</strong> of Public Teachers of<br />
Law, New Series 20, n. 4 (1980), and see Schlegel 1984, supra n. 314 at 407–408. G. Edward White<br />
writes that “[t]he self-conscious identi<strong>fi</strong>cation of Realism as a progeni<strong>to</strong>r of, or an inspiration for, the CLS<br />
movement seems <strong>to</strong> be a grasp at legitimacy.” (White 1984, supra n. 603 at 650.) A detailed and comprehensive<br />
study of the differences between realism and CLS is Wouter de Been, Legal Realism Regained:<br />
Saving Realism from Critical Acclaim (Stanford, California: Stanford University Press 2008). One needs<br />
<strong>to</strong> note, however, that these differences have been observed, and the argument that “[t]he CLS claim on<br />
the legacy of Legal Realism, on the whole, has been uncritically accepted” (id. at 13), is simply not true,<br />
since the fact that CLS has interpreted realism <strong>to</strong> pursue its own ends has been noted. (See Kalman 1996,<br />
supra n. 260 at 82–83, and see Standen 1986, supra n. 616, who sees realism and CLS as contradic<strong>to</strong>ry<br />
movements.) Of course, it can be disputed whether CLS was an heir of realism because the answer depends<br />
on the de<strong>fi</strong>nition of these movements and what it means <strong>to</strong> say that “realism was the predecessor of<br />
CLS”. The book by de Been is excellent in the sense that it points out important facts about these movements<br />
and especially illuminates the image of realism, but its picture of CLS is quite simpli<strong>fi</strong>ed.<br />
620 Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 Stanford<br />
Law Review 623, 626 (1984). Tushnet refers <strong>to</strong> both realism and law and society.<br />
621 Id. at n. 16.<br />
622 Duxbury writes that in their challenge <strong>to</strong> the tradition, “critical legal scholars have re-invoked the<br />
realist tradition of challenging accepted jurisprudential wisdom” but CLS was “not simply realism repeated,”<br />
and, furthermore, “while realism was a mood, critical legal studies has evolved very much as a<br />
movement.” (Duxbury 1995, supra n. 42 at 424–425.) In addition, “[t]here was no great coup de grâce<br />
which brought realism <strong>to</strong> an end; it just faded away. The problems <strong>to</strong> which it had pointed, furthermore,<br />
remained unresolved.” Thus, “[c]ritical legal studies embodies a recognition of the fact that important<br />
realist lessons have been conveniently ignored, and it endeavours <strong>to</strong> teach these lessons <strong>to</strong> American<br />
academic lawyers yet again.” (Id. at 427. Italics original.) There was no radical attack on American jurisprudence<br />
in the 1960s because realists had already done that. Moreover, the 1960s was a culmination of a<br />
steady increase in critical legal scholarship. CLS was a culmination of several lines of development and a<br />
reinterpretation and re-application of the realist insights.<br />
146
eading realism and felt compelled <strong>to</strong> ful<strong>fi</strong>ll its mission, but rather they had <strong>to</strong> settle accounts<br />
with it because of the similarities in theories. Nevertheless, critical theory has<br />
always <strong>to</strong> be adapted <strong>to</strong> the times it prospers in and therefore two movements of very<br />
different ages can hardly share anything but the basis. It was thus natural that critical<br />
scholars of the 1970s reinterpreted the realism of the 1930s.<br />
The interest in metaphysics and fundamental criticism also distinguished CLS<br />
from other critical movements of the time. Law and society was criticized for its emphasis<br />
on empiricism. As White argues, “[o]f all the issues that were <strong>to</strong> demarcate Critical<br />
Legal Studies from the Law and <strong>Society</strong> movement, the association of objective empiricism<br />
with positivism was the most explosive and the most clearly joined.” 623 Since<br />
critical scholars were interested in the connection between ideology, values, and facts,<br />
they were not interested in empirical approaches. Of course, empirical sciences mattered<br />
<strong>to</strong> the less radical critical scholarship. Critical scholars did not pay much attention <strong>to</strong><br />
political jurisprudence, but obviously its determinism in behaviorist or political terms<br />
was much <strong>to</strong>o simple for a detailed legal analysis and could not provide a basis for legal<br />
scholarship. 624 Law and economics and rights theories were attacked on the basis that<br />
they accepted the dominant ideology at face value. Therefore, the critical scholars<br />
thought that they provided the most useful methodology <strong>to</strong> analyze law without any<br />
ideological baggage. The purpose was <strong>to</strong> transcend the contemporary society in order <strong>to</strong><br />
explore the origins of the values and policies behind the law and <strong>to</strong> emancipate both the<br />
law and the people from the chains of modernity.<br />
The theoretical basis of CLS was diversi<strong>fi</strong>ed, which was also reflected in, and a<br />
consequence of, its complicated and comprehensive aims. In general, the theory of critical<br />
legal scholarship was a combination legal realism, critical theory, neo-Marxism,<br />
Hegelian philosophy and continental philosophies such as structuralism and existentialism,<br />
New Left radicalism, liberal sociology and empirical social sciences, and neoprogressive<br />
his<strong>to</strong>riography. 625 Critical legal scholarship developed at a time when science<br />
and scholarship in general were changing, which provided considerable theoretical<br />
potential, combining several elements with no one single element being superior <strong>to</strong> any<br />
other. It was an elaboration and a mixture of philosophical pieces and concepts integrated<br />
in<strong>to</strong> the critical thought of the 1960s and 1970s. In addition, different scholars favored<br />
different theories and drew influences from many sources that could contribute <strong>to</strong><br />
the critical arguments. Criticism itself both followed the influences and encouraged<br />
more; some scholars were critical before reading the philosophy and thus chose the literature<br />
<strong>to</strong> get more inspiration for their ideas, whereas others became critical because of<br />
the literature they read.<br />
623 White 1987, supra n. 143 at 835.<br />
624 See Tushnet 1980, supra n. 619 at 29.<br />
625 David Kennedy, Critical Theory, Structuralism, and Contemporary Legal Scholarship, 21 New England<br />
Law Review 209, n. 1 (1985). See also Donald F. Brosnan, Serious but Not Critical, 60 Southern<br />
California Law Review 259, 268–270 (1987); Russell 1986, supra n. 615 at 4–5; Turley 1987, supra n.<br />
300 at 597–598, 604. The references, of course, also include the literature of the 1980s.<br />
147
Ideas and theories often resembled those of the Frankfurt School, and it is obvious<br />
that it had some impact on the development of critical legal scholarship, but the extent<br />
of the impact is dif<strong>fi</strong>cult <strong>to</strong> explicate. David Kennedy notes that the impact of critical<br />
theory has not been marked in American jurisprudence, 626 John Schlegel writes that the<br />
members of the <strong>fi</strong>rst conference on critical legal studies had read very little of its literature,<br />
627 and Pierre Schlag argues that “the tenor of most early CLS thought owed much<br />
more <strong>to</strong> the activist and existentialist ethos of Sartre than <strong>to</strong> the pessimistic theories of<br />
the Frankfurt School.” 628 It is true that the references <strong>to</strong> the Frankfurt School were infrequent<br />
and there were no systematic efforts <strong>to</strong> build theories on it. Nevertheless, even<br />
if the direct impact of the Frankfurt School was not great, it might have had more indirect<br />
impact because it contributed <strong>to</strong> the critical postwar scholarship notion on the connection<br />
between research and ideology, and laid the foundation for the criticism of naturalism<br />
and positivism. Critical theory was a scholarly background that <strong>to</strong> a certain extent<br />
at least structured the critical thought.<br />
The criticism of epistemology and the construction of facts also followed the general<br />
trends in the philosophical and cultural criticism. Continental philosophy started <strong>to</strong><br />
influence American legal scholarship in the 1970s, 629 and the critical scholars were often<br />
greatly inspired by it. Although continental thought has influenced American legal<br />
scholarship at least since the late nineteenth century, 630 critical legal scholars of the<br />
1960s and 1970s were in the forefront in introducing new continental theories <strong>to</strong> American<br />
jurisprudence and hence following the recent intellectual trends. Joan Williams has<br />
argued that the epistemology of CLS followed the trends in continental philosophy,<br />
where the conception of reality through empirical observations was criticized and the<br />
focus was directed <strong>to</strong> the roles of the observer, culture, contingent conventions, and interpretation.<br />
631 In addition, as noted by James Boyle, critical legal scholarship was also<br />
a response <strong>to</strong> the decline of reason <strong>to</strong> which postwar continental philosophy contributed.<br />
Critical legal scholars attempted <strong>to</strong> show that reason was contingent so that one needed<br />
<strong>to</strong> understand the structures of consciousness <strong>to</strong> understand the manifestation of social<br />
626 Kennedy 1985, supra n. 625 at 244–245.<br />
627 Schlegel 1984, supra n. 314 at 403.<br />
628<br />
Pierre Schlag, Critical Legal Studies, 297.<br />
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1632981 (last visited 29.6 2012).<br />
629 Donald H.J. Hermann, Phenomenology, Structuralism, Hermeneutics, and Legal Study: Applications<br />
of Contemporary Continental Thought <strong>to</strong> Legal Phenomena, 36 University of Miami Law Review 379,<br />
380–381, 385–386, 393, 405 (1982). Unger is the only CLS scholar Hermann includes in his analysis (id.<br />
at n. 11), but he could have also included Peter Gabel, Al Katz, and Duncan Kennedy, because now it<br />
seems that he has included only works that build on continental philosophy, not those that have been<br />
considerably influenced by it.<br />
630 See James E. Herget, The Influence of German Thought on American Jurisprudence, 1880–1918, in<br />
Mathias Reinmann (ed.), The Reception of Continental Ideas in the Common Law World, 1820–1920<br />
(Berlin: Duncker & Humblot 1993), 203–228; James E. Herget and Stephen Wallace, The German Free<br />
Law Movement as the Source of American Legal Realism, 73 Virginia Law Review 399–455 (1987).<br />
631 Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells,<br />
62 New York University Law Review 429, 438–439, 445–448, 471–485 (1987). Williams concludes,<br />
however, that CLS has departed from the new epistemology in the faith that its theories could<br />
transcend the problem of observing reality. (Id. at 473–474.)<br />
148
ationality. 632 The emergence of critical legal scholarship indeed followed the linguistic<br />
and epistemological turns which directed perception <strong>to</strong> the construction of reality. The<br />
possibilities of describing reality were constrained by the limits of language as well as<br />
by the context of culture, society, and politics. CLS philosophy sought <strong>to</strong> point out the<br />
de<strong>fi</strong>ciencies in the mainstream thinking so that the essence of being could be rede<strong>fi</strong>ned.<br />
Whatever the impact of philosophy and social theory was, the sources were always<br />
read freely and interpreted <strong>to</strong> suit the purpose. Schlag writes that “[t]o the extent that<br />
Marx, Weber, Sartre, Levi Strauss (and later Nietzsche, Derrida, and Foucault) played<br />
any role in shaping cls thought, it was either as deep background or as interstitial insight.”<br />
633 Although greatly overstated, the argument is substantially correct. As already<br />
noted, critical scholars applied various influences, which were adapted <strong>to</strong> the interest of<br />
the scholar. At the beginning, critical legal scholarship was rather a search for authenticity<br />
than a theoretical movement. It had neither a de<strong>fi</strong>nite theoretical basis nor solid influences.<br />
It followed the social upheaval and the personal drives of the scholars more<br />
than any intellectual or jurisprudential agenda, but this does not mean that theoretical or<br />
intellectual sources did not matter. It seems that the fundamental point in the radicalcritical<br />
legal scholarship was primarily <strong>to</strong> surpass the collective consciousness of modern<br />
man and <strong>to</strong> examine the authentic self-consciousness of the individual, and various<br />
influences were used <strong>to</strong> a greater or lesser extent, sometimes very super<strong>fi</strong>cially, in the<br />
endeavor.<br />
Furthermore, of course, the scholars were affected by each other’s writings. CLS<br />
was a “network of scholars” writing in the law reviews, reading each other’s texts <strong>to</strong> a<br />
varying extent and thus having reciprocal influence on the development of the various<br />
theories. 634 A common fac<strong>to</strong>r between critical scholars was a particular attitude rather<br />
than theory. They developed ideas and others were influenced by them and developed<br />
them further. The diversity of the influence of critical legal scholarship reflected the<br />
diversity of the scholars; they had different emphases and therefore theories differed as<br />
well. And as the literature expanded and the critical thought became stronger, the critical<br />
scholars felt the need <strong>to</strong> gather for a conversation. The conference on critical legal<br />
studies gathered scholars with similar attitudes, theoretical backgrounds, political orientation,<br />
and research interests <strong>to</strong>gether.<br />
Critical race theory and critical feminist legal scholarship developed with a similar<br />
pattern but with some lag. They were intertwined with the movement but grew apart<br />
when they become disappointed with it. 635 Racial and gender-based inequalities were<br />
pressing problems and subjects of social activism. Both women and African Americans<br />
had had dif<strong>fi</strong>culty in obtaining higher education and tenure in the universities. As these<br />
groups increasingly entered the academy, the scholarship also increased. The rising crit-<br />
632 Boyle 1985, supra n. 296, esp. at 690, 730–735, 743–745, 757–762, n. 141.<br />
633 Pierre Schlag, U.S. CLS, 10 Law and Critique 199, 202 (1999).<br />
634 Barrister Interview with Duncan Kennedy 1987, supra n. 206 at 12; A Conversation with Duncan<br />
Kennedy 1994, supra n. 324 at 56.<br />
635 See the Minority Critiques of the Critical Legal Studies Movement Symposium, 22 Harvard Civil<br />
Rights-Civil Liberties Law Review 297─447 (1987).<br />
149
ical legal studies provided theory and methods that could transcend the limits of traditional<br />
scholarship, analyze the connection between ideology, consciousness, and law,<br />
critically examine the legal situation in context, and <strong>fi</strong>nd alternatives <strong>to</strong> contemporary<br />
policies. The critical scholarship on race and gender issues began, of course, outside and<br />
parallel <strong>to</strong> the rise of critical legal studies, but the movements were intertwined in the<br />
late 1970s. Race and gender problems were, however, mostly of interest <strong>to</strong> racial minorities<br />
and women. So when it turned out that critical legal studies were not so concerned<br />
with these problems, they developed theories of their own.<br />
Although it is extremely dif<strong>fi</strong>cult <strong>to</strong> pinpoint the actual origins of CLS, it seems<br />
that it is best described as an academic counter-culture that pursued various ends. It<br />
originated in the counter-culture identity of the 1960s, the disappointments with legal<br />
education at the same time, the feelings that the law and society had failed the great<br />
expectations, and in the postwar changes in scholarship, science, and jurisprudence. The<br />
origins of the counterculture, social radicalism and civil rights movements, the New<br />
Left, and the changes in scholarship are of course in the 1950s, but in the 1960s and<br />
1970s legal scholars realized the indefensibility of the legal tradition. CLS was an academic<br />
response <strong>to</strong> the social, cultural, and intellectual changes, that grew out of the<br />
combination of the dissatisfaction with the law and the academic legal tradition and the<br />
personal drive <strong>to</strong> criticize and change the tradition. Its theories emanated from the critical<br />
thought and alternative jurisprudence of the 1950s and early 1960s. When the scholars<br />
who matured during the turbulence of the sixties reached the point at which they<br />
were ready <strong>to</strong> depart both from the traditional and the alternative branch of jurisprudence,<br />
they began <strong>to</strong> develop comprehensive critical theories. The 1970s then registered<br />
the evolution of radical-critical legal thought.<br />
Radical legal thought developed in the 1970s because that was a time of transformation.<br />
The 1960s was a strange decade in which the criticism of the social system<br />
sought <strong>to</strong> point out that apparently benevolent institutions had pernicious effects. In the<br />
1970s, however, the critique turned <strong>to</strong> adapt these institutions <strong>to</strong> conform <strong>to</strong> the rights of<br />
the citizen. In a sense, then, CLS was a remnant of the thought of the sixties because at<br />
a fundamental level it still aimed <strong>to</strong> reveal the paradoxes of modern institutions and <strong>to</strong><br />
show that the modern rights consciousness simply protected the status quo. However, it<br />
was not simply the sixties thought adapted <strong>to</strong> the seventies, but rather new thought<br />
changed according <strong>to</strong> the needs and ideas of the new decade.<br />
In the late 1970s there was a movement called Critical Legal Studies. There was<br />
no single or uni<strong>fi</strong>ed theory of CLS, although the main points of the movement were basically<br />
the same. It is dif<strong>fi</strong>cult <strong>to</strong> summarize the theoretical premises because of the diversi<strong>fi</strong>ed<br />
literature and, moreover, because Unger seems <strong>to</strong> be the only one who has<br />
tried <strong>to</strong> develop a systematic theory. Although there is no “theory of CLS,” 636 its most<br />
636 For a general review of the “CLS agenda”, see Russell 1986, supra n. 615 at 8–13, and see also Frank<br />
Munger and Carroll Seron, Critical Legal Studies Versus Critical Theory: A Comment on Method, 6 Law<br />
& Policy 257, 262–272 (1984). For a construction of CLS theory, see Hunt 1986, supra n. 471 and, for<br />
criticism of Hunt's analysis, see Martin Krygier, Critical Legal Studies and Social Theory ─ A Response<br />
150
essential elements, as they were in the late 1970s, can be summed up as follows. First,<br />
there is no rational basis for legal reasoning. Law is indeterminate and differing decisions<br />
deriving from the same facts are always possible. Second, law is related <strong>to</strong> the<br />
dominant social ideology. There are no natural, logical, or necessary solutions within a<br />
society, everything being conditioned by ideology. The third premise, following from<br />
the second, is that rights and values are socially constructed and thus open <strong>to</strong> debate, not<br />
natural or inevitable. Fourth, following from those above, legal activity is conditioned<br />
by the personality of the ac<strong>to</strong>r and the structures within which he or she acts, and neither<br />
the ac<strong>to</strong>r nor the context decides the outcome of a case alone. Fifthly and <strong>fi</strong>nally, law is<br />
a product of his<strong>to</strong>ry, and the contemporary circumstances are created and restrained by<br />
his<strong>to</strong>rical development. These are of course not the only criteria of CLS scholarship but<br />
are essential <strong>to</strong> it. Critical scholars worked on these assumptions and developed various<br />
theories. And, furthermore, the more reformist branch of critical scholarship advocated<br />
these methods <strong>to</strong> bring about improvements in law.<br />
The response <strong>to</strong> CLS reflects its image. Despite the radical agenda, early critical<br />
legal literature passed mostly unnoticed and it was not until the 1980s that a major reaction<br />
began. 637 Only Unger’s and Horwitz’s <strong>fi</strong>rst books attracted serious attention in the<br />
1970s, but it was not until critical scholarship had a <strong>fi</strong>rm foothold in academia that it<br />
began <strong>to</strong> attract the attention of the profession. Traditional scholars then argued that<br />
CLS merely rewrote old ideas, 638 its philosophy was <strong>to</strong>o vague and ambiguous <strong>to</strong> build<br />
any comprehensive theory, 639 its arguments were ambiguous and poor, 640 and its target<br />
was a straw-man. 641 It is obvious that critical scholarship caricatured and misinterpreted<br />
law and traditional scholarship but that was based on the experiences of the scholars<br />
since people with different world views may perceive things differently. Critical legal<br />
scholarship followed from the epistemological differences between the critical and traditional<br />
scholars. Criticism originated from bad experiences with the society and the law<br />
school, but the pursuit of radical criticism drove the scholars further and also contributed<br />
<strong>to</strong> the creation of their enemy. It is impossible <strong>to</strong> say which was the true state of the<br />
law, but the critical scholars perceived only its flaws, set them in ideological context,<br />
and criticized the <strong>to</strong>tality. This was a project in which honest and sincere efforts <strong>to</strong> improve<br />
society and update the paradigm were mixed with the pursuit of academic fame<br />
and taking revenge on the tradition.<br />
<strong>to</strong> Alan Hunt, 7 Oxford Journal of Legal Studies 26–39 (1987). For CLS scholars’ synthesis of the theory,<br />
see Rober<strong>to</strong> Mangabeira Unger, The Critical Legal Studies Movement, 96 Harvard Law Review 561–675<br />
(1983); Kelman 1987, supra n. 451.<br />
637 Duncan Kennedy, Psycho-Social CLS: A Comment on the Cardozo Symposium, 6 Cardozo Law Review<br />
1013, 1014–1015 (1985).<br />
638 Louis B. Schwartz, With Gun and Camera through Darkest CLS-Land, 36 Stanford Law Review 413,<br />
425, 440, 442, 452–453 (1984).<br />
639 Michael A. Foley, Critical Legal Studies: New Wave U<strong>to</strong>pian Socialism, 91 Dickinson Law Review<br />
467, 484 (1986).<br />
640 Schwartz 1984, supra n. 638 at 444–448.<br />
641 Williams 1987, supra n. 631 at 485–487; Foley 1986, supra n. 639 at 487; Schwartz 1984, supra n. 638<br />
at 447.<br />
151
It has been argued that critics of CLS have often misunders<strong>to</strong>od the movement and<br />
simpli<strong>fi</strong>ed its theories. 642 Early critical legal scholarship was not deterministic, simply<br />
destructive, nihilistic, or playing only the “law is politics” card. The scholarship was not<br />
reductionist, but sought <strong>to</strong> de<strong>fi</strong>ne law in a highly complex manner and thus <strong>to</strong> de<strong>fi</strong>ne<br />
theories of jurisprudence that could determine the true meaning of law. The purpose of<br />
the criticism was <strong>to</strong> go beyond legal rules and principles <strong>to</strong> reveal their real purposes<br />
and functions. Therefore, the scholarship was centered on the project of <strong>to</strong>tal criticism<br />
because it was thought that it was the only way <strong>to</strong> transcend the boundaries of consciousness.<br />
CLS was a response <strong>to</strong> the social problems, but it was also an effort by the<br />
scholars <strong>to</strong> acquire academic capital, and, furthermore, it was a philosophical and political<br />
enterprise <strong>to</strong> create a theory of law and society that could guarantee authentic human<br />
essence and freedom beyond the capitalist and socialist state. It was an academic<br />
movement of <strong>to</strong>tal criticism of the tradition in search of authenticity and originality.<br />
5 Conclusions<br />
5.1 CLS in Context<br />
CLS was an outcome of various fac<strong>to</strong>rs and the result of long process of development.<br />
Its conceptual basis developed in the 1960s and 1970s alongside social and intellectual<br />
criticism. Although mainstream jurisprudence <strong>to</strong>ok a more conservative and traditional<br />
direction after the war, there were forms of realist and alternative legal scholarship during<br />
the decades of transformation. Critical legal scholars of the 1970s, however, identi<strong>fi</strong>ed<br />
with the antagonistic spirit and radicalized the critical scholarship of the 1960s.<br />
They drew influences from the postwar sciences, neo-Marxism, and critical social<br />
thought, combined these with the lessons of legal realism, and brought a dash of individuality.<br />
After the mid-1970s, there were enough critical scholars <strong>to</strong> organize a conference<br />
and create a semi-formal critical society within the law schools.<br />
In the <strong>fi</strong>rst place, critical legal scholarship was a response <strong>to</strong> the social changes<br />
and hence a product of its time. The 1960s was a decade of transformation, although the<br />
changes had begun earlier and the decade mostly marked a revision, resurgence, and<br />
radicalization of older ideas. In the 1960s, however, a considerable part of the generation<br />
adopted a critical attitude <strong>to</strong>ward society, noted the social inequalities and the injustices<br />
the modern order created and upheld, and began <strong>to</strong> struggle against the traditional<br />
authorities. The Vietnam War that represented capitalist oppression both home and<br />
abroad was the last straw that marked the beginning of the mass radicalism. Critical<br />
642 Collins 1987, supra n. 314 at 397–398; Gordon 1987, supra n. 600 at n. 1. See also Fischl 1992, supra<br />
n. 614; Richard Michael Fischl, Some Realism about Critical Legal Studies, 41 University of Miami Law<br />
Review 505–532 (1987).<br />
152
legal scholars were students or scholars who were critical and leftist before the 1960s or<br />
adopted these ideas during the years of turbulence, and thus identi<strong>fi</strong>ed with the radical<br />
students and the leftist agenda. Their literature pointed out that law was part of the social<br />
hierarchies of power and therefore contributed <strong>to</strong> their preservation.<br />
Lawyers and legal scholars had looked for alternative ways <strong>to</strong> practice their profession<br />
during the sixties, which was seen as the development of the law and society<br />
scholarship and in the creation of the various forms of alternative advocacy as well as in<br />
the willingness of lawyers <strong>to</strong> change the society. Critical legal scholars were the most<br />
upset segment of the legal profession who wanted <strong>to</strong> pursue an academic career. They<br />
were interested in philosophy and theory and wanted <strong>to</strong> elaborate jurisprudence that<br />
would suit their interests. Critical legal scholarship was thus a combination of the New<br />
Left ideology, the critical attitude of the critical lawyers, and postwar critical theories<br />
and continental philosophy. Critical scholars had identi<strong>fi</strong>ed themselves with the radical<br />
youth of the 1960s, and they continued the critical work within academia. The critical<br />
movement was in many ways like the New Left; it was an academic movement criticizing<br />
the dominant consciousness and seeking an alternative theory, and whereas the New<br />
Left aimed at participa<strong>to</strong>ry democracy, CLS tried <strong>to</strong> elaborate legal theory that would be<br />
true <strong>to</strong> the actual needs of the people.<br />
Critical legal scholarship also followed the general intellectual and scienti<strong>fi</strong>c<br />
trends. The postwar years witnessed the rise of the criticism of positivism and naturalism<br />
in science, the linguistic turn, and the transformation of epistemology. Neo-<br />
Marxism and critical theories entered the studies of his<strong>to</strong>ry, sociology, economics, culture,<br />
and literature. Furthermore, interdisciplinary legal scholarship became more popular<br />
in the 1960s and 1970s. Critical legal scholars applied the new sciences in legal studies<br />
and created a philosophy of law that could transcend the pursuit of rationality and<br />
the neutrality of traditional jurisprudence. It was a legal theory that denied the superiority<br />
of the values and policies of modern society and emphasized the fact that people created<br />
the image of reality, the values and norms that were part of it, and constructed social<br />
institutions. Critical legal scholarship sought <strong>to</strong> emancipate law, jurisprudence, and<br />
people from the repression of consciousness and <strong>to</strong> understand the freedom of creation.<br />
In the last resort, however, critical legal scholarship was an academic movement.<br />
Although many critical legal scholars participated in social practices, an academic career<br />
was their primary goal. They were radicals who disliked all the other forms of contemporary<br />
jurisprudence and wanted <strong>to</strong> create a legal theory that could transcend the<br />
ideological chains of scholarship. Critical legal scholarship was a way <strong>to</strong> acquire academic<br />
fame, even if indirectly, because criticism itself was a way of self-realization.<br />
CLS was a methodology of criticism, combining philosophical thinking in<strong>to</strong> traditional<br />
forms of criticism, and stretching the critical potential <strong>to</strong> the extreme. It was a philosophy<br />
of law designed <strong>to</strong> explore the authenticity of the relation between the individual<br />
and law in modern society. Reasons for adopting a critical stance might vary from social<br />
benevolence and altruism <strong>to</strong> philosophical and theoretical interests or from the disappointments<br />
of being a student <strong>to</strong> the willingness <strong>to</strong> distinguish oneself from the masses.<br />
153
Whatever the reason, the critical scholars found the traditional scholarship unsatisfac<strong>to</strong>ry<br />
and wanted <strong>to</strong> create an alternative tradition. The impulses of the critical theory often<br />
came from the society and influences came from philosophy and scholarship. The variety<br />
of influences indicates that there was no common theory, even if the basic premises<br />
were very close <strong>to</strong> each other. Critical legal scholarship was also a struggle <strong>to</strong>ward authenticity<br />
and originality.<br />
While stressing one fac<strong>to</strong>r in the rise of the CLS movement, scholars are missing<br />
some elementary aspects of its development. It is important <strong>to</strong> understand the rise of the<br />
movement as an academic response <strong>to</strong> the changes in society, culture, and legal scholarship.<br />
It is also important <strong>to</strong> perceive CLS scholars as scholars who were frustrated with<br />
the tradition in several ways, and hence expressed their personal world views through<br />
their scholarship. Their activities were meant <strong>to</strong> change the legal scholarship, law, and<br />
society, but they were also meant <strong>to</strong> attack the tradition and create something new. Critical<br />
legal scholarship was an expression of a different world view and lifestyle.<br />
5.2 A <strong>fi</strong>nal remark: CLS in the 1980s<br />
As we have seen, the critical legal scholarship of the 1970s, culminating in the establishment<br />
of the Conference on Critical Legal Studies in 1977, was a complex phenomenon<br />
combining various aspects of the 1960s and 1970s. There was critical scholarship in<br />
the 1960s, but the more radical from of criticism came in<strong>to</strong> existence in a series of<br />
fragmentary articles during the early 1970s and, with a more weighty amount of literature<br />
published in the latter half of the decade, critical legal scholarship became one of<br />
the most influential forms of legal scholarship of the decade.<br />
Critical Legal Studies was anything but over as the 1970s came <strong>to</strong> its close. In fact,<br />
it was only entering the most productive and fertile era, and as Duxbury writes,<br />
“[a]lthough critical legal studies grew out of the New Left-inspired academic disaffection<br />
of the 1970s, it will probably be remembered as the jurisprudence of the 1980s.” 643<br />
CLS scholars continued <strong>to</strong> write on several <strong>to</strong>pics, and in the 1980s it became internationally<br />
well-known and a very influential form of jurisprudence. Critical scholars wrote<br />
on various <strong>to</strong>pics such as contract, 644 labor, 645 constitutional 646 and criminal law. 647 In<br />
addition, legal reasoning, 648 education, 649 rights, 650 and law and economics 651 were all<br />
643 Duxbury 1995, supra n, 42 at 468.<br />
644 Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference<br />
<strong>to</strong> Compulsory Terms and Unequal Bargaining Power, 41 Maryland Law Review 563–658 (1982).<br />
645 Karl E. Klare, Labor Law as Ideology: Toward a New His<strong>to</strong>ry of Collective Bargaining Law, 4 Industrial<br />
Relations Law Journal 450–482 (1981).<br />
646 Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,<br />
96 Harvard Law Review 781–827 (1983).<br />
647 Mark Kelman, Interpretative Construction in the Substantive Criminal Law, 33 Stanford Law Review<br />
591–673 (1981).<br />
648 Peter Gabel, Rei<strong>fi</strong>cation in Legal Reasoning, 3 Research in Law and Sociology 25–52 (1980).<br />
154
placed under the radical microscope. CLS also sought <strong>to</strong> cooperate more with the Guild<br />
than it had in the previous years 652 , and it expanded in size tremendously. 653 In the<br />
1980s, CLS reached the point at which it became known.<br />
Whereas the CLS movement faded in the early 1990s, 654 critical race theory and<br />
feminist jurisprudence prospered, probably because they were more constructive and<br />
had a clear agenda. Since the decline of CLS is not, however, the primary concern of<br />
this study, we cannot delve any deeper in<strong>to</strong> that problem. The 1980s was, nonetheless, a<br />
golden age for CLS. It seems that the philosophical basis, the opportunities the scholarship<br />
provided, and the conservative atmosphere of the decade provided a fertile ground<br />
for CLS scholarship <strong>to</strong> flourish in. Moreover, CLS never died. Although it lost lots of<br />
its appeal and was eventually absorbed in<strong>to</strong> the dominant paradigm, it has given and<br />
continues <strong>to</strong> give much inspiration, and influences modern legal scholarship.<br />
The development of CLS provides an interesting perspective not only on the critical<br />
legal scholarship in the United Sates but also a more universal phenomenon of the<br />
Western world. The United States was a signi<strong>fi</strong>cant locus of scholarship in the postwar<br />
world, which was influenced by European currents but which also had a considerable<br />
influence on the development of European scholarship. In the following chapter, we<br />
turn <strong>to</strong> the development of alternative legal scholarship in Scandinavia, because it provides<br />
a more particular perspective on the issue.<br />
649 Kennedy 2004, supra n. 539.<br />
650 Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62<br />
Texas Law Review 1563–1599 (1984).<br />
651 Mor<strong>to</strong>n J. Horwitz, Law and Economics: Science or Politics? 8 Hofstra Law Review 905–912 (1981).<br />
652 See Kairys (ed.) 1982, supra n. 598, which was a product of the cooperation of the National Lawyers<br />
Guild and CLS.<br />
653 See Kennedy 1985, supra n. 637.<br />
654 John Henry Schlegel, CLS Wasn’t Killed by a Question, 58 Alabama Law Review 967, 967–969<br />
(2007).<br />
155
156
IV Alternative and critical legal scholarship in<br />
Scandinavia, 1965–1980<br />
1 Introduction<br />
1.1 Scandinavia as a legal area<br />
In the previous chapter we noted how alternative legal scholarship arose in the United<br />
States during the 1960s and evolved in<strong>to</strong> critical legal studies in the 1970s. We noted<br />
how various aspects of society, culture, and scholarship affected its development. In this<br />
chapter I will examine the alternative and critical legal scholarship of the 1960s and<br />
1970s in the Scandinavian countries, Denmark, Norway, and Sweden, 1 which are studied<br />
collectively and in less detail than the United States was in the previous chapter, and<br />
then Finland in the following one. The intention is a general overview, and the comparison<br />
will mainly be done between the Scandinavian countries and Finland on the one<br />
hand and the United States and the Nordic Countries on the other.<br />
The Scandinavian countries share a relatively similar, albeit not identical, political<br />
culture, 2 and law and legal scholarship also have many similarities. A general analysis is<br />
thus both possible and practical. 3 As the Norwegian legal scholar Johannes Andenæs<br />
wrote in 1968, “[w]hen it comes <strong>to</strong> details, there are many differences from one country<br />
<strong>to</strong> another in Scandinavia, but I imagine that the similarities are so great that a foreign<br />
observer would easily recognize their legal systems as belonging <strong>to</strong> the same family.” 4<br />
As noted in chapter II, although the Continental legal tradition has had a considerable<br />
influence on Scandinavian law and legal scholarship, the his<strong>to</strong>rical development has<br />
both distanced the Scandinavian countries from the Continental tradition and uni<strong>fi</strong>ed the<br />
Nordic legal tradition. 5 Because of the his<strong>to</strong>rical inheritance and the similar languages,<br />
1 The word “Scandinavia” usually refers <strong>to</strong> these countries. The phrase “Nordic Countries” is used when<br />
Finland and Iceland are included, but Scandinavia can also be used <strong>to</strong> refer <strong>to</strong> all <strong>fi</strong>ve Nordic Countries.<br />
Here “Scandinavia” means only Denmark, Norway and Sweden, and “Nordic Countries” includes Finland,<br />
but the adjective “Scandinavian” can also refer <strong>to</strong> the Nordic Countries. Iceland will not be a part of<br />
my analysis.<br />
2 Øystein Sørensen and Bo Stråth, Introduction: The Cultural Construction of Norden, 7, in Øystein<br />
Sørensen and Bo Stråth (eds.), The Cultural Construction of Norden (Oslo: Scandinavian University Press<br />
1997), 1–24.<br />
3 See Ulf Bernitz, What is Scandinavian Law? Concept, Characteristics, Future, 50 Scandinavian Studies<br />
in Law 13–29 (2007).<br />
4 Johs. Andenæs, The Legal Framework, 9, in Scandinavian Studies in Criminology, Volume 2 (Oslo:<br />
Universitetsforlaget 1968), 9–17.<br />
5 Ditlev Tamm, The Nordic Legal Tradition in European Context ─ Roman Law and the Nordic Countries,<br />
17, in Pia Let<strong>to</strong>-Vanamo (ed.), Nordisk Identitet: Nordisk rätt i europeisk gemenskap (Helsingfors:<br />
KATTI 1998), 15–31. See also Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki, Nordic Law: Between<br />
Tradition and Dynamism, 10–38, in Jaakko Husa, Kimmo Nuotio, Heikki Pihlajamäki (eds.), Nordic Law<br />
– Between Tradition and Dynamism (Antwerp ─ Oxford: Intersentia 2007), 1–39.<br />
157
legal scholars of the Scandinavian countries have always been aware of the currents of<br />
their neighboring countries and there has always been close communication between<br />
them.<br />
The Scandinavian countries have also long been cooperating in law and politics, 6<br />
cooperation which has involved legislation as well as legal scholarship. Many of the<br />
laws of the Nordic countries have been prepared <strong>to</strong>gether and therefore legislation is<br />
quite similar, in certain cases even identical. 7 The countries have followed each other’s<br />
legislative reforms and followed the example if considered reasonable. Furthermore, the<br />
lawyers’ associations of these countries have held conferences in which they have been<br />
able <strong>to</strong> contemplate contemporary legal problems. Cooperation itself, of course, creates<br />
uniformity, but the basis of the Scandinavian cooperation is also the his<strong>to</strong>rical connections<br />
between the countries and their closely related legal cultures. The cooperation has<br />
therefore been based on their cultural closeness, and has created and reproduced more<br />
closeness.<br />
During the turbulent times of the 1960s, similar associations for similar causes<br />
were established in the Nordic countries. For example, the associations for criminal political<br />
research and reform were founded in the late 1960s. 8 There were also law journals<br />
that were read in all of the countries and in which contemporary problems could be<br />
reviewed, such as Tidsskrift for rettsvitenskap (Journal for Legal Scholarship), Nordisk<br />
tidsskrift for kriminalvitenskap (Nordic Journal for Criminal Legal Scholarship), and<br />
Scandinavian Studies in Law. The last was founded in 1951 <strong>to</strong> publish Scandinavian<br />
legal studies in English. The 1960s increased the common cause. For example, Scandinavian<br />
Studies in Criminology was founded in 1965 <strong>to</strong> gather and publish Scandinavian<br />
criminological research in English. Scandinavian legal scholars did not work within<br />
strict national boundaries but cooperated with each other, and the rise of critical jurisprudence<br />
boosted the common scholarship.<br />
In this chapter, I shall explore the rise of the Scandinavian alternative and critical<br />
legal scholarship in the 1960s and its development in the 1970s. I will here use the word<br />
critical legal scholarship in referring <strong>to</strong> Marxist jurisprudence and <strong>to</strong> fundamental criticism<br />
of law and legal scholarship, whereas alternative legal scholarship refers <strong>to</strong> the<br />
various schools of sociological and non-traditional jurisprudence, even if clear distinctions<br />
between the extremes cannot be drawn. After I have briefly described the social<br />
6 An influential fac<strong>to</strong>r in the common legislation in the postwar era has been the Scandinavian Council,<br />
which was founded in 1952 as a formal organization for cooperation between the Nordic Countries. (T.K.<br />
Derry, A His<strong>to</strong>ry of Scandinavia: Norway, Sweden, Denmark, Finland & Iceland (Minneapolis: University<br />
of Minnesota Press 1979), 374–376.)<br />
7 On the legislative cooperation, see Leif Sevón, Några reflexioner kring det nordiska lagstiftningssamarbetet,<br />
TfR 1988, 509–523.<br />
8 The Swedes were the <strong>fi</strong>rst <strong>to</strong> establish “The National Swedish Association for Penal Reform”, KRUM in<br />
1966. Denmark and Finland followed the next year, and the Norwegian Association for Criminal Reform<br />
(KROM) was founded in 1968. These organizations then cooperated in conferences and research. (Hans<br />
Nestius, Förord, 7, in Hans Nestius (ed.), Behandling som Straff: 23 debattinlägg om nordisk kriminalpolitik<br />
(S<strong>to</strong>ckholm: Bokförlaget Prisma 1969), 7–13; Thomas Mathiesen, Politics of Abolition: Essays in<br />
Political Action Theory (Scandinavian Studies in Criminology, Volume 4, Oslo: Universitetsforlaget<br />
1974), 40–44.)<br />
158
circumstances of the period, I will, <strong>fi</strong>rst, briefly analyze the rise of the sociology of law<br />
and alternative legal scholarship in the 1960s. As will be seen, there was a realist tradition<br />
within Scandinavian legal scholarship, but in the 1950s and 1960s the interest in<br />
sociological jurisprudence increased and legal scholars began <strong>to</strong> take a more critical<br />
view of their profession. Second, I will explore the development of Marxist legal scholarship<br />
in the 1970s. Marxist legal scholarship, which reflected the trends in social and<br />
intellectual criticism, was the most critical form of legal scholarship. There were differences<br />
and similarities in the Marxist legal scholarship of the Scandinavian countries, but<br />
the general trend was the same. Third, I will examine the alternative and critical legal<br />
scholarship in the late 1970s and consider a few particular <strong>to</strong>pics. Because there are<br />
three countries under consideration, this chapter is not as detailed as chapters three and<br />
<strong>fi</strong>ve. Nonetheless, the general account illuminates interesting and important aspects of<br />
the critical legal scholarship of the 1960s and 1970s and is thus useful for the comparative<br />
analysis.<br />
1.2 Scandinavia and the 1960s<br />
Scandinavian countries were in a different position after the Second World War, but<br />
when the war was over and the reconstruction began, they <strong>to</strong>ok a relatively similar path<br />
<strong>to</strong>ward modernization. Denmark and Norway had been occupied by Germany, and<br />
therefore had <strong>to</strong> settle their accounts with the war-time administrations. As a result of<br />
their war-time experiences and the political situation, they both joined NATO as founding<br />
members. Sweden, on the other hand, had not participated in the war and was therefore<br />
un<strong>to</strong>uched by its ravages. She also decided <strong>to</strong> remain neutral in Cold War power<br />
politics and declined <strong>to</strong> align militarily.<br />
The decades before the Second World War were a time of slow but steady transformation<br />
of the Scandinavian countries, which remained mostly agrarian despite industrialization.<br />
The great depression of the 1930s did not hit the Scandinavian countries,<br />
which also avoided the rise of fascism, particularly hard. The Second World War interrupted<br />
the steady development, but the postwar reconstruction re-started it again. During<br />
the two decades after the War, Scandinavian countries witnessed a tremendous economic<br />
growth, and urbanization and industrialization of the society, all boosted by the<br />
population growth. 9<br />
The construction of the welfare state was one of the most signi<strong>fi</strong>cant social changes<br />
in Scandinavia. Although this began in the late nineteenth and early twentieth centuries,<br />
welfare legislation blossomed from the 1950s onwards. 10 Sweden was the bestknown<br />
with its “Swedish model” economy and “People’s Home” welfare politics. Their<br />
9 Mary Hilson, The Nordic Model: Scandinavia since 1945 (London: Reaktion Books 2008), 59–75.<br />
10 Derry 1979, supra n. 6 at 365–370; Hilson 2008, supra n. 9 at 91–106.<br />
159
internationally admired combination of capitalism and socialism was created, and the<br />
social security system <strong>to</strong>ok care of every citizen. 11 Norway <strong>to</strong>o had a considerable welfare<br />
system by the 1960s, 12 whereas the Danish system was not as extensive. 13 A postwar<br />
goal of Scandinavian countries was <strong>to</strong> create an equal society in which differences<br />
of class and income would not be signi<strong>fi</strong>cant and where every citizen would be taken<br />
care of by the society. The governments sought <strong>to</strong> create stability and happiness in society<br />
through signi<strong>fi</strong>cant redistributive measures.<br />
Signi<strong>fi</strong>cant characteristics of Scandinavian politics in the twentieth century as well<br />
as powerful fac<strong>to</strong>rs in the construction of the welfare state were political consensus,<br />
cooperation between opposing political parties, and the dominant social democratic ideology.<br />
Labor unions and the working class have been relatively strong throughout the<br />
century and have had a signi<strong>fi</strong>cant influence on the postwar politics. 14 Especially in<br />
Norway and Sweden, labor market relations were peaceful until the late 1960s. 15 Despite<br />
the class divisions, the interaction between political consensus, the welfare state,<br />
and peaceful labor market relations brought stability <strong>to</strong> the society and decreased national<br />
tensions.<br />
The political and social trends were both influenced by and contributed <strong>to</strong> the fact<br />
that the moderate left dominated the Scandinavian political <strong>fi</strong>eld from the inter-war era<br />
<strong>to</strong> the beginning of the 1970s. 16 There was of course no absolute consensus or unanimity<br />
about politics, but the <strong>fi</strong>rst quarter of a century after the war was nevertheless marked<br />
by a relatively high level of political and social stability, and Scandinavia thus avoided<br />
serious political tensions.<br />
Despite the political consensus, prosperity, and growth, the age of anxiety was<br />
coming. Criticism of society and liberation from the conservative values had begun in<br />
the 1950s, but the 1960s was the beginning of turbulent times in Scandinavia. 17 The<br />
revolutionary left was revitalized in the late 1950s and early 1960s, and following the<br />
11 Sven Olson, Sweden, 7–12, in Peter Flora (ed.), Growth <strong>to</strong> Limits: The Western European Welfare<br />
States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Berlin: Walter de Gruyter<br />
1986), 1–116; Göran Hägg, Välfärdsåren: Svensk his<strong>to</strong>ria 1945─1986 (S<strong>to</strong>ckholm: Wahlström &<br />
Widstrand 2005), 47–55, 153–156. “People’s Home” (folkhemmet) was originally a conservative concept<br />
but the leftists adopted it in the late 1930s. (Sørensen and Stråth 1997, supra n. 2 at 16.)<br />
12 Stein Kuhnle, Norway, 122–125, in Flora (ed.) 1986, supra n.11 at 117–196.<br />
13 Lars Nørby Johansen, Denmark, 300–304, in Flora (ed.) 1986, supra n. 11 at 293–381.<br />
14 Henrik Stenius, The Good Life Is a Life of Conformity: The Impact of the Lutheran Tradition on Nordic<br />
Political Culture, 170, in Sørensen & Stråth (eds.) 1997, supra n. 2 at 161–171; Derry 1979, supra n. 6<br />
at 367.<br />
15 Hilson 2008, supra n. 9 at 71.<br />
16 Derry 1979, supra n. 6 at 361–362; Hilson 2008, supra n. 9 at 40–46. Social Democratic dominance has<br />
been mostly a Swedish s<strong>to</strong>ry. In Norway and Denmark Social Democrats have had <strong>to</strong> cooperate more<br />
with other political parties. As will be seen in the next chapter, Finland has differed from Scandinavia<br />
with respect <strong>to</strong> both politics and labor market relations.<br />
17 Recent Scandinavian his<strong>to</strong>riography has presented the radicalism of the late 1960s and the year 1968 as<br />
the zenith of the “long sixties” that covered the period of approximately 1958–1974. (Kjell Östberg, Sweden<br />
and the Long ‘1968’: Break or Continuity? 33 Scandinavian Journal of His<strong>to</strong>ry 339, 339–340 (2008);<br />
Anette Warring, Around 1968 ─ Danish His<strong>to</strong>riography, 33 Scandinavian Journal of His<strong>to</strong>ry 353, 354<br />
(2008); Laura Kolbe, From Memory <strong>to</strong> His<strong>to</strong>ry: Year 1968 in Finland, 33 Scandinavian Journal of His<strong>to</strong>ry<br />
366, 366 (2008).)<br />
160
international trend, the old communist parties distanced themselves from Soviet socialism<br />
and created a new left agenda for socialism in a western democracy. 18 The revolutionary<br />
communist left had never disappeared from the political map although it could<br />
not compete with the moderate left. As both international and domestic politics<br />
changed, the socialists had <strong>to</strong> renew in order <strong>to</strong> form a powerful alternative <strong>to</strong> the political<br />
establishment, and communism became thus a powerful political ideology in the<br />
1960s and 1970s.<br />
Alongside the radicalization of the society and politics, critical and radical counter-cultures<br />
were formed, which questioned the traditional lifestyle and social mores. 19<br />
Furthermore, students became radicalized and more involved in politics. The 1960s in<br />
general was a time when everything was politicized, and students <strong>to</strong>o perceived the<br />
problems at the university in terms of politics. They also struggled against the university<br />
hierarchies, administration, and curriculum, and formed critical study groups and<br />
movements for social action. 20 Students were the major impetus in youth radicalism and<br />
in the development of the youth counter culture. Universities were places were young<br />
people could interact and acquire theoretical knowledge about social and scholarly criticism.<br />
It was therefore the students who were the most receptive <strong>to</strong> global controversies<br />
and who were also the most active participants in constructing the image of them.<br />
The Vietnam War was a major fac<strong>to</strong>r in the process of radicalization, and mass<br />
protests against the war occurred everywhere. 21 Radicals were not simply concerned<br />
with the issues at home, but protested against the global capitalist system and oppression<br />
that the war represented in its most outrageous form. It was not like the other wars<br />
in his<strong>to</strong>ry because it was seen <strong>to</strong> be a direct consequence of capitalism. 22 Protests<br />
against the war were also targeted against the Scandinavian countries because of their<br />
support for the system, even if the of<strong>fi</strong>cial foreign policy often disapproved of the war.<br />
Sweden in particular was extremely critical of the war. Because of NATO membership,<br />
18 Thomas Ekman Jørgensen, Transformations and Crises: The Left and the Nation in Denmark and Sweden,<br />
1956–1980 (New York: Berghahn Books 2008), 32–51. Orthodox communism survived the crisis of<br />
the late 1950s but it was not very popular and therefore remained quite insigni<strong>fi</strong>cant in national politics.<br />
19 In general on the counter-cultures of the 1960s and 1970s in Scandinavia, see, e.g., Morten Bendix<br />
Andersen & Niklas Olsen (eds.), 1968: Dengang og nu (København: Museum Tusculanums Forlag 2004);<br />
Tor Egil Førland & Trine Rogg Korsvik (eds.), 1968: Opprør og motkultur på norsk (Oslo: Pax forlag<br />
2006); Kjell Östberg, 1968 när allting var i rörelse: Sextiotalsradikaliseringen och de sociala rörelserna<br />
(S<strong>to</strong>ckholm: Prisma 2002).<br />
20 Sven-Olof Josefsson, Året var 1968: Universitetskris och studentrevolt i S<strong>to</strong>ckholm och Lund (Göteborg:<br />
Avhandlingar från His<strong>to</strong>riska institutionen i Göteborg 1996), 124–130, 135–137, 142–144, 186–<br />
189, 213–216; Steven L.B. Jensen & Thomas Ekman Jørgensen, Studenteroprøret i Danmark, 101:2 His<strong>to</strong>risk<br />
tidsskrift 435–469 (2001).<br />
21 Vietnam protests in Scandinavia are dealt with in Kim Salomon, Rebeller i takt med tiden: FNLrörelsen<br />
och 60-talets politiska ritualer (S<strong>to</strong>ckholm: Rabén Prisma 1996); Johs. Norden<strong>to</strong>ft & Søren H.<br />
Rasmussen, Kampagnen mod A<strong>to</strong>mvåben og Vietnambevægelsen 1960–1972 (Odense: Odense Universitetsforlag<br />
1991); James Godbolt, Den norske vietnambevegelsen (Oslo: Unipub forlag 2010).<br />
22 Jørgensen 2008, supra n. 18 at 89, 92.<br />
161
the situation in Norway and Denmark was different. Nonetheless, they <strong>to</strong>o were ambassadors<br />
of peace and adopted a critical attitude on the war. 23<br />
The radicalism of the 1960s was in any event a rebellion against the traditional<br />
values, norms, and the authorities. Radical counter culture was born out of the frustration<br />
with the bourgeois society, and the cold war nuclear threat and balance of terror,<br />
combined with student dissatisfaction within the universities, which was exacerbated by<br />
the explosion of the student population. 24 The youth rebellion that culminated in 1968<br />
was a global phenomenon adapted <strong>to</strong> national circumstances. 25 The student revolts of<br />
1968 were thus not as dramatic in Scandinavia as they were, for example, in France,<br />
West Germany, and the United States. In addition, the national governments were more<br />
supportive and understanding <strong>to</strong>ward the restless students. 26 Although the rebellion was<br />
the same at a basic level, theoretical stresses and underpinnings varied. Communism<br />
became popular among the radicals even if Soviet communism was not supported. In<br />
Denmark, radicalism was based more on Marxist thought than in Sweden and Norway,<br />
where the radicals adopted more Maoist approaches <strong>to</strong>ward socialism. 27 Although social<br />
radicalism followed more contemporary politics and the development of the youth<br />
counter culture, it needed a theoretical boost. Since capitalism was the public enemy<br />
number one, counter culture needed socialist ideology, and since the Soviet Union had<br />
shown its oppressive side, the radicals turned <strong>to</strong>wards Cuba and China.<br />
The critical perception of the establishment was also seen in the rise of critical<br />
scholarship. Logical positivism was criticized and scholars became more interested in<br />
critical theories such as the Frankfurt School and Marxism. Scholarly traditions were<br />
criticized for being ideological and biased <strong>to</strong>ward capitalism. 28 Scholarship was also<br />
seeking theories <strong>to</strong> criticize the tradition and the hierarchies of academic scholarship,<br />
23 James Godbolt, Chris Holmsted Larsen, Søren Hein Rasmussen, The Vietnam War: The Danish and<br />
Norwegian Experience 1964–1975, 33 Scandinavian Journal of His<strong>to</strong>ry 395–416 (2008).<br />
24 See, e.g., the analysis in Josefsson 1996, supra n. 20 at 25–33.<br />
25 Terry H. Anderson, 1968: The American and Scandinavian Experiences, 33 Scandinavian Journal of<br />
His<strong>to</strong>ry 491, 492–493 (2008).<br />
26 Thomas Ekman Jørgensen, The Scandinavian 1968 in a European Perspective, 33 Scandinavian Journal<br />
of His<strong>to</strong>ry 326, 327 (2008); Steven L.B. Jensen, “Youth Enacts <strong>Society</strong> and Somebody Makes a Coup”:<br />
The Danish Student Movement between Political and Lifestyle Radicalism, 237, in Axel Schildt and<br />
Detlef Siegfried (eds.), Between Marx and Coca-Cola: Youth Cultures in Changing European Societies,<br />
1960─1980 (New York: Berghahn Books 2006), 224–238; Thomas Etzemüller, A Struggle for Radical<br />
Change? Swedish Students in the 1960s, 241–243, in Schildt and Siegfried (eds.) 2006, id. at 239–257.<br />
27 For Swedish Maoism, see Anne Hedén, Röd stjärna över Sverige: Folkrepubliken Kina som resurs i<br />
den svenska vänsterradikaliseringen under 1960- och 1970-talen (Lund: Sekel 2008); Lars Åke Augustsson<br />
& Stig Hansen, Maoisterna: En his<strong>to</strong>ria berättad av några som var med (S<strong>to</strong>ckholm: Ordfront<br />
förlag 1997). For Maoism in Norway, see Hans Petter Sjøli, Mao, min Mao: His<strong>to</strong>rien om AKPs vekst og<br />
fall (Oslo: Cappelen 2005). For a comparative view of the new left in Sweden and Denmark, see Jørgensen<br />
2008, supra n. 18. As will be noted in the following chapter, Finland differed from the Scandinavian<br />
countries in that orthodox Marxism was more influential.<br />
28 Svante Nordin, Från Hägerström till Hedenius: Den moderna svenska <strong>fi</strong>loso<strong>fi</strong>n (Lund: Doxa 1983),<br />
198–201, 205–206; Josefsson 1996, supra n. 20 at 263–267; August Aronsson, Mellan kritisk vetenskap<br />
och revolutionär teori: Den marxistiska samhällsvetenskapens utformning i Häften för Kritiska Studier<br />
1968–1971, C-uppsatts VT 2007, Institutionen för idé- och lärdomshis<strong>to</strong>ria, Uppsala universitetet, 17–27<br />
(available at http://uu.diva-portal.org/smash/record.jsf?searchId=1&pid=diva2:291946 (last visited<br />
31.1.2013)).<br />
162
and the new trends in critical theory and Marxism proved very productive in criticizing<br />
the academic tradition. As society was criticized for its apparent neutrality, traditional<br />
scholarship also came under the attack of critical perceptions.<br />
The turn of the 1970s was in many ways a continuance of the preceding decade,<br />
but it also meant transformation. The decade registered an economic downturn and a<br />
series of strikes which interrupted the otherwise peaceful labor market relations. Although<br />
student radicalism faded in the early 1970s, leftist ideology was still strong in<br />
politics and its focus turned away from global politics <strong>to</strong>ward the working class at<br />
home. Hence, for example, new labor legislation was enacted during the 1970s. 29 The<br />
economic crisis also sharpened the criticism of the welfare state by the political left. It<br />
had been already noted in the 1960s that the welfare state had been incapable of promoting<br />
equality and struggling against poverty, and the criticism intensi<strong>fi</strong>ed in the 1970s<br />
when several studies pointed out the persistent inequalities in Scandinavian societies. 30<br />
As a countervailing force <strong>to</strong> the continuance of the strong left, the neo-conservatism that<br />
had been on the rise since radicalism came <strong>to</strong> prominence as a powerful alternative <strong>to</strong><br />
the social democratic hegemony. 31 However, many of the issues that had begun in the<br />
late 1960s were promoted in the 1970s, and thus movements such as feminism and environmentalism<br />
became stronger. 32 New problems emerged as the old conflict between<br />
labor and capital was slowly fading in<strong>to</strong> the background, and problems such as economic<br />
ef<strong>fi</strong>ciency and global integration on the one hand, and national authenticity on the<br />
other became more important. Membership of the EC was one of the most controversial<br />
<strong>to</strong>pics of the early 1970s. Denmark joined the community, whereas Norway declined<br />
because of the powerful opposition that had struggled against EC membership since the<br />
1960s. Sweden also decided <strong>to</strong> continue its policy of neutrality and did not apply for<br />
membership. 33<br />
The decade after the turbulent 1960s thus registered a continuation of old issues as<br />
well as a change. At the end of the 1970s, the left lost its momentum. Just like its rise,<br />
the fall of the new left was a consequence of many things. First, socialism as an ideology<br />
lost its appeal because of its global downfall. Second, the radical left could not <strong>fi</strong>nd a<br />
new ideology and the new generation was not all that interested in the old radicalism;<br />
the young became more interested in career and property than in u<strong>to</strong>pian ideology.<br />
Third, society changed and the traditional industrial working class that had been the<br />
core of socialist ideology both shrank and was not that interested in the socialist cause,<br />
and the new working class in the service sec<strong>to</strong>r did not identify with socialism. 34 Be-<br />
29 Jørgensen 2008, supra n. 18 at 132–136.<br />
30 Hilson 2008, supra n. 9 at 106–107.<br />
31 Claes Arvidsson, Ett annat land: Sverige och det långa 70-talet (S<strong>to</strong>ckholm: Timbro 1999), 329–337,<br />
349–356; Hägg 2005, supra n. 11 at 328–355; Berge Furre, Norsk his<strong>to</strong>rie 1914─2000: Industrisamfunnet<br />
─ frå vokstervisse til framtidstvil (Oslo: Det Norske Samlaget 1999), 364–367; Ebbe Kühle, Danmarks<br />
his<strong>to</strong>rie i et globalt perspektiv (København: Gyldendal 2008), 311–313.<br />
32 Östberg 2008, supra n. 17 at 345–346.<br />
33 Furre 1999, supra n. 31 at 300–313; Kühle 2008, supra n. 31 at 296–314.<br />
34 Jørgensen 2008, supra n. 18 at 165–178.<br />
163
cause socialism lost its momentum both at global and national level, and because radicalism<br />
lost its momentum as the driving force of the young, the radical left vanished.<br />
Leftism, of course, continued but it was different in the 1980s.<br />
2 The roots of critical legal scholarship, 1965–1973<br />
2.1 Introduction<br />
Scandinavian critical legal scholarship emerged in the late 1960s and reached its most<br />
critical phase in the 1970s with the rise of Marxist legal scholarship. In order <strong>to</strong> understand<br />
the his<strong>to</strong>ry of the critical legal scholarship of the 1970s, it is important <strong>to</strong> situate it<br />
in the context of society and scholarship. Therefore, in this section I shall deal with the<br />
forms of alternative legal scholarship of the 1960s which gave a theoretical and methodological<br />
grounding <strong>to</strong> the more critical scholarship of the 1970s.<br />
Of particular importance is the rise of sociology of law in Scandinavia in the<br />
1960s. As compared <strong>to</strong> the United States, there was then no <strong>fi</strong>rm tradition of sociology<br />
of law in Scandinavia. The rise of the discipline nevertheless performed the same functions<br />
as it did in the United States. Sociology of law of the 1960s thus provided a strong<br />
basis for the studies of the social functions and effects of law as well as the gap between<br />
law in books and law in action, and it also provided <strong>to</strong>ols for criticism. The <strong>fi</strong>rst steps<br />
<strong>to</strong>ward sociological jurisprudence had been taken during the times of realism, in the late<br />
nineteenth and early twentieth centuries and in particular during the inter-war years, but<br />
it was only during the 1960s that influential and expansive tradition was formed around<br />
the discipline. As will be noted, like their American colleagues, Scandinavian legal<br />
scholars began <strong>to</strong> emphasize the importance of investigating the roles law actually<br />
played in social relationships. What the 1960s brought was a functional understanding<br />
of law as well as the realization of the very ambivalent character of law.<br />
The purpose of this section is <strong>to</strong> illuminate the changes in legal scholarship in the<br />
1960s. I will <strong>fi</strong>rst briefly examine the rise of the sociology of law in Scandinavia in the<br />
1960s, paying particular attention <strong>to</strong> its critical aspects. Second, I will study the rise of<br />
the critical legal scholarship in the late 1960s. It is important <strong>to</strong> understand that the jurisprudential<br />
tradition of Scandinavia was quite realistic, and the critical scholars sought<br />
<strong>to</strong> stretch the tradition a few steps more in a realist and critical direction.<br />
164
2.2 The rise of sociology of law in Scandinavia<br />
The rise of sociology of law was an international phenomenon after the Second World<br />
War. The dramatic changes in social and economic structures and the new currents in<br />
scholarship created new needs for legal research, and the scholars who were willing <strong>to</strong><br />
take the challenge began <strong>to</strong> work on a scholarship that could explore the social functions<br />
of law. 35 Scandinavian legal sociology rose in the wake of the international discipline. 36<br />
A general trend in legal research was <strong>to</strong> <strong>fi</strong>nd alternative methods <strong>to</strong> the traditional doctrinal<br />
analysis in order <strong>to</strong> transcend the level of law and provide data on the actual function<br />
of law in society. In addition <strong>to</strong> the social and theoretical interests, the rise of the<br />
new scholarship also reflected the increased interest in cross-disciplinary research, and<br />
the increased international cooperation of scholars intensi<strong>fi</strong>ed the global aspect of the<br />
new <strong>fi</strong>eld of study.<br />
The methodological transformation of Scandinavian legal scholarship in the 1960s<br />
followed international currents. An essential <strong>fi</strong>gure in the rise of the sociology of law<br />
was the Norwegian scholar Vilhelm Aubert, whose contribution <strong>to</strong> introducing the<br />
methods of sociology of law in Scandinavia was signi<strong>fi</strong>cant, 37 and who has since been<br />
credited with laying the theoretical basis for the Scandinavian critical legal scholarship<br />
of the 1970s. 38 Even if the credits for the theoretical basis may be a matter of debate,<br />
Aubert’s contribution <strong>to</strong> Scandinavian alternative legal scholarship was signi<strong>fi</strong>cant. He<br />
had begun his project on legal sociology in the late 1940s by calling for studies on the<br />
social origins of law, the causes of legal conflicts, and the social effects of law. 39 In the<br />
1950s, he participated in the <strong>fi</strong>rst study of modern legal sociology in Scandinavia by coauthoring<br />
a study on the effects of the law on domestic help with Torstein Eckhoff and<br />
35 Rena<strong>to</strong> Treves, Introduction, 1–10, in Rena<strong>to</strong> Treves and J.F. Glastra van Loon (eds.), Norms and Actions:<br />
National Reports on Sociology of Law (The Hague: Martinus Nijhoff 1968), 1–20.<br />
36 A good account of Scandinavian sociology of law between approximately 1947 and 1965 is Torstein<br />
Eckhoff, Sociology of Law in Scandinavia, in Treves and van Loon (eds.) 1968, supra n. 35 at 21–50. See<br />
also Britt-Mari Persson Blegvad, The Systematic Position of Sociology of Law in Current Scandinavian<br />
Research, in Britt-Mari Persson Blegvad (ed.), Contributions <strong>to</strong> the Sociology of Law (Copenhagen:<br />
Munksgaard 1966), 2–19. A brief but well-documented his<strong>to</strong>ry of Norwegian sociology before the Second<br />
World War is Gunn Elisabeth Birkelund, The Genesis of Norwegian Sociology: A S<strong>to</strong>ry of Failures<br />
and Success (University of Oxford: Sociology Working Papers 2006–05) (available at<br />
http://www.sociology.ox.ac.uk/documents/working-papers/2006/2006-05.pdf (last visited 17.9.2012)).<br />
37 Vilhelm Aubert (1922–1988) <strong>fi</strong>rst studied law in Oslo and then sociology in New York, where he received<br />
the theoretical background <strong>to</strong> his scholarship. After returning <strong>to</strong> Norway, he became a very influential<br />
<strong>fi</strong>gure in the rising sociology of law in Scandinavia. A biographical essay on Aubert appears in<br />
http://snl.no/.nbl_biogra<strong>fi</strong>/Vilhelm_Aubert/utdypning (last visited 17.9.2012). There were other important<br />
<strong>fi</strong>gures with respect <strong>to</strong> sociology of law in Scandinavia in the 1950s besides Aubert, but he was the most<br />
signi<strong>fi</strong>cant. For a more detailed description of the early phases of sociology of law in Scandinavia see<br />
Persson Blegvad 1966, supra n. 36 at 2–13; Eckhoff 1968, supra n. 36 at 21–50.<br />
38 Nils Kristian Sundby, Innledning, 12, in Anders Bratholm & Nils Kristian Sundby (eds.), Kritisk juss<br />
(Oslo: Pax forlag 1976), 9–17.<br />
39 Vilhelm Aubert, Noen problemområder i rettssosiologien, TfR 1948, 432–465.<br />
165
Knut Sveri, 40 and he later investigated the functions of criminal law in his PhD dissertation.<br />
41 The development of the methods of legal sociology in the 1950s thus directed the<br />
interest of legal scholars in the legal reality behind the rules. This can be seen as the<br />
beginning of the postwar Scandinavian alternative legal scholarship in which the focus<br />
went beyond doctrinal analysis.<br />
The roots of the criticism of law and legal scholarship lay in the sociological approach.<br />
In developing his methods, Aubert also began <strong>to</strong> criticize traditional legal<br />
scholarship for its alleged value-neutrality. 42 According <strong>to</strong> Aubert, who by the mid-<br />
1960s had already conducted a considerable number of sociological studies on law, law<br />
was a method of structuring the society and the problems between people within it, and,<br />
furthermore, law in action always differed from law in books. Therefore, he considered<br />
an analysis of the values and policies behind law essential for legal research because it<br />
helped in understanding legal reality and one’s perspective on it. 43 The realistic approach<br />
<strong>to</strong> law made scholars aware of the fact that law in action did not directly correspond<br />
with the law in books. Although this notion had already been acknowledged, it<br />
<strong>to</strong>ok some time before Scandinavian legal scholars really began <strong>to</strong> contemplate the<br />
problem. The critical aspect in sociological jurisprudence emphasized that, <strong>fi</strong>rst, law<br />
was a system of values and was therefore always promoting certain social interests, and<br />
second, formal equality produced factual inequality, and the latter was related <strong>to</strong> the<br />
former. Thus, sociology of law paved the way for the critical analysis of law.<br />
The interest in sociology of law grew considerably in the 1960s. 44 The decade did<br />
not initiate such research but it meant that more and more scholars became interested in<br />
it and that its theories and methods were developed. The <strong>fi</strong>rst Scandinavian conference<br />
on legal sociology arranged by the Scandinavian Association for Sociology of Law was<br />
held in December 1967 in Denmark. The purpose of the conference was <strong>to</strong> give a<br />
chance for sociology of law scholars <strong>to</strong> discuss its research and education. 45 Sociological<br />
studies in law were the <strong>fi</strong>rst studies in the 1960s <strong>to</strong> have a critical grasp of the rela-<br />
40 Vilhelm Aubert, Torstein Eckhoff, Knut Sveri, En lov i søkelyset: Socialpsykologisk undersøkelse av<br />
den norske hushjelplov (Oslo: Akademisk forlag 1952).<br />
41 Vilhelm Aubert, Om straffens sosiale funksjon (Oslo: Akademisk forlag 1954).<br />
42 Vilhelm Aubert, Likhet og rett (Oslo: Pax forlag 1964), 8, 99.<br />
43 Vilhelm Aubert, The Hidden <strong>Society</strong> (To<strong>to</strong>wa, New Jersey: The Bedminster Press 1965), 22, 59–60,<br />
65–75, 83–115. Aubert had conducted studies on law and society from the <strong>fi</strong>fties, and occasionally with<br />
some American scholars. Some of his essential studies are collected in The Hidden <strong>Society</strong>. The purpose<br />
of the book was <strong>to</strong> examine unfamiliar aspects of society, and in particular the effects and functions of<br />
law in society not explicitly observed by the people or scholars of traditional legal scholarship. Aubert’s<br />
studies covered a vast area of legal problems in society.<br />
44 Per Stjernquist, Rättssociologi som examensämne i Sverige, JFT 1964, 318–335. Stjernquist lamented<br />
that sociology of law was not integrated in<strong>to</strong> legal education as was done in the United States. He then<br />
explained the possible uses of sociology of law according <strong>to</strong> American examples.<br />
45 Britt-Mari Persson Blegvad (ed.), Retssociologi i norden: Indlæg på den første nordiske konference i<br />
retssociologi 1967 (Handelshøjskolen i København: Institution for Organisation og Arbejdssociologi<br />
1968), 3 [foreword]. The studies presented at the <strong>fi</strong>rst conference were gathered in Persson Blegvad (ed.)<br />
1968, id.<br />
166
tionship between law and society. 46 Thus, these studies were conducted in investigating<br />
such issues as the potential of legal interpretation and argumentation, 47 the effects of<br />
legislation, 48 legal behavior, 49 and arbitration as a method of conflict-solving. 50 The<br />
development in this regard was remarkably similar <strong>to</strong> that of the United States. Scandinavian<br />
sociology of law can be seen as law and society scholarship that focused on the<br />
actual social functions and effects of law. Its scholars were interested in critically examining<br />
the reality of law in order <strong>to</strong> reveal problems and consider reforms. It was a<br />
branch of scholarship which provided opportunities <strong>to</strong> apply alternative approaches,<br />
criticize law, participate in contemporary legal debates, and develop theories on law.<br />
Just like the American scholars of political jurisprudence, law and development, and<br />
law and society, the Scandinavian sociological legal scholars developed scholarship that<br />
tackled contemporary problems and provided explanations and propositions for reform.<br />
A scholar who reflected many of the aspects of this trend was Sten Edlund, who<br />
combined the sociological approaches with a somewhat more traditional legal research.<br />
In his treatise on the negotiation procedures in labor disputes, he criticized traditional<br />
legal scholarship for its narrow and normative perspective. He argued that since contractual<br />
relations were <strong>to</strong>talities in which individual and social fac<strong>to</strong>rs were important,<br />
legal research should focus on the personalities of the judges and the behavior of the<br />
parties so that the signi<strong>fi</strong>cance of extra-legal fac<strong>to</strong>rs could be taken in<strong>to</strong> account. 51 The<br />
critical mood was rising, as was seen in the dislike of the normative perspective of traditional<br />
legal scholarship, and the focus was moving <strong>to</strong> the law in action instead. The<br />
methodological basis of legal scholarship was expanding, and the sociological approach<br />
was becoming more popular.<br />
Besides the increased interest in sociology of law, 52 the late 1960s also witnessed<br />
the publication of the <strong>fi</strong>rst systematic efforts <strong>to</strong> bring out and expound its methodologies.<br />
In a textbook on sociology of law, Aubert explained that research on the social<br />
functions and effects of law were important because it affected people differently, and<br />
people had differing perceptions of it. 53 One of the earliest notions in sociological studies<br />
on law had been that courts sometimes applied the same rules in varying ways de-<br />
46 Aubert wrote that because of the heterogeneity of the research it would be better <strong>to</strong> talk about Law and<br />
<strong>Society</strong> than legal sociology, as had been done in the United States. (Vilhelm Aubert, Symposium rettssosiologi:<br />
Oppsummering, 18, in Persson Blegvad (ed.) 1968, supra n. 45 at 7–18.)<br />
47 Per Olof Bolding, Samhällsvetenskapliga data, common sense och juridisk argumentation, in Persson<br />
Blegvad (ed.) 1968, supra n. 45 at 29–41. [Later referred <strong>to</strong> as Bolding 1968(a).]<br />
48 Bernhard Gomard & Jan Hellner, Retssociologi og erstatningsret, in Persson Blegvad (ed.) 1968, supra<br />
n. 45 at 42–52.<br />
49 Jaakko Uotila, Raimo Blom, Per Norseng, Allmänhetens inställningar till rättsväsendet, in Persson<br />
Blegvad (ed.) 1968, supra n. 45 at 53–66.<br />
50 Per Olof Bolding, Britt-Mari Persson Blegvad, Ole Lando, Skiljeförfarande som konfliktlösning, in<br />
Persson Blegvad (ed.) 1968, supra n. 45 at 67–79.<br />
51 Sten E:son Edlund, Tvisteförhandlingar på arbetsmarknaden: En rättslig studie av två riksavtal i tilllämpning<br />
(S<strong>to</strong>ckholm: P.A. Nordstedt & Söners förlag 1967), 13–26.<br />
52 Persson Blegvad (ed.) 1966, supra n. 36; Persson Blegvad (ed.) 1968, supra n. 45; Jette Møller Nielsen<br />
(ed.), Retssociologi i norden II: Indlæg på den tredie nordiske forskerkonference i retssociologi 1969<br />
(Handelshøjskolen i København: Institution for Organisation og Arbejdssociologi 1970).<br />
53 Vilhelm Aubert, Rettssosiologi (Oslo: Universitetsforlaget 1968), 11–15, 31–32, 57–67, 76–84.<br />
167
pending on the case in hand. 54 It was therefore an essential task of the legal sociologist<br />
<strong>to</strong> explore the factual inequalities which followed from the apparently equitable law.<br />
The notion concerning the gap between law in books and law in action was one of the<br />
tenets on which critical theory of law could be built once the theoretical basis was laid.<br />
A critical turn in sociology of law occurred at the beginning of the 1970s. In a<br />
Swedish revised edition of Aubert’s textbook that appeared four years after the original<br />
one, the methodology had become far more critical, <strong>to</strong> a certain extent even Marxist. In<br />
1972, Aubert wrote about the Marxist theory on social class conflicts and their influences<br />
on law. 55 This critical turn followed the social radicalism and the rise of the critical<br />
theories in academia. Sociology of law had noted the ambivalent nature of law and<br />
the differences between theory and practice, and by the early 1970s, the functional approach<br />
of sociological jurisprudence was moving <strong>to</strong>wards a critical approach.<br />
Combined with the radicalization of society and theoretical reorientation of alternative<br />
legal scholarship, sociology of law turned from critical analysis <strong>to</strong> criticism of<br />
law. Aubert’s books on sociology of law were realistic insights in<strong>to</strong> law, its place in<br />
society, and legal scholarship, including the distinction between law in books and law in<br />
action and focusing on the latter. There were critical perspectives on law but the law per<br />
se and the legal system as a whole were not criticized. Nevertheless, sociology of law<br />
directed the interest from legal rules <strong>to</strong>ward legal reality and promoted a critical perspective<br />
that would not take law at face value. The road <strong>to</strong>ward radical criticism of law<br />
was paved when this methodology was combined with a Marxist analysis of the origins<br />
and functions of law. As can be seen in the methodological turn, Marxism was becoming<br />
popular in the early 1970s, opening up new critical opportunities for legal research.<br />
The rise of sociology of law in Scandinavia reflected the same currents as it did in<br />
the United States. It was an outcome of the expansion of the methodological basis of<br />
legal scholarship and of the growing interest in social organization and planning<br />
through law. Furthermore, the increasing interest in the rights of the citizen was also<br />
considerable, since the postwar scholars wanted <strong>to</strong> analyze whether the law in fact did<br />
what it was supposed <strong>to</strong> do. In the pursuit of examining whether law can promote social<br />
good, the scholars had <strong>to</strong> focus on the law in action. Both in the United States and<br />
Scandinavia, scholars extended the methodologies and subjects of legal scholarship, and<br />
began <strong>to</strong> participate in the debates on contemporary concerns.<br />
The rise and development of legal sociology was an elementary fac<strong>to</strong>r in the development<br />
of critical legal scholarship, since it provided the methodological basis for<br />
critical approaches. Rune Slagstad has analyzed the continuity between realism, Scandinavian<br />
realism, sociology of law, and post-realism in postwar Norway. He points out<br />
that sociology of law followed realism in the 1950s and early 1960s, but empiricism<br />
54 Aubert 1964, supra n. 42 at 112–129.<br />
55 Vilhelm Aubert, Rättssociologi (S<strong>to</strong>ckholm: Bokförlaget Aldus/Bonniers 1972), 81–91, 95–97. Aubert<br />
did note, however, that economic relations do not completely explain law, being merely one part of it. (Id.<br />
at 89–91, 98.)<br />
168
turned <strong>to</strong>ward realism on the judiciary and law in the late 1960s and 1970s. 56 These<br />
were the times of the birth of modern critical legal scholarship. The roots of the critical<br />
legal scholarship of the 1960s and the 1970s are a combination of the rise of the sociology<br />
of law in the 1950s, the inheritance of Scandinavian realism and the adoption of<br />
parts of American legal realism, the postwar tradition of critical scholarship that attacked<br />
scienti<strong>fi</strong>c positivism, and the nascent social and academic dissatisfaction. In this<br />
very brief account of the rise of the sociology of law, I have tried <strong>to</strong> demonstrate the<br />
development of the sociological method. In the following sections, I shall point out the<br />
rise of the critical legal scholarship and its relation <strong>to</strong> the sociology of law.<br />
2.3 Criticism of legal scholarship in the late 1960s and early 1970s<br />
Besides sociology of law, the 1960s witnessed a revival of critical legal scholarship.<br />
Realism had attacked the metaphysical foundations of legal scholarship in the <strong>fi</strong>rst half<br />
of the century. The interest in social studies of law, the rise of critical scholarship, and<br />
the increasing social dissatisfaction, however, contributed <strong>to</strong> the rise of a new kind of<br />
critical legal scholarship that would critically analyze the origins and functions of law.<br />
Unlike the realism of the 1930s, the “new realism” did not try <strong>to</strong> purge legal discourse<br />
of values and policies, but acknowledged their existence and then analyzed them openly.<br />
I will explore the rise of the critical legal scholarship that developed <strong>to</strong>gether with<br />
and, <strong>to</strong> a certain extent, emanated from the sociology of law of the 1960s.<br />
There was no strict legal formalism in Scandinavia in the 1960s because realism<br />
had left a legacy of pragmatic jurisprudence. Traditional jurisprudence was contested<br />
again in the 1950s, and theories were elaborated that would consider the goals and policies<br />
of law, 57 but the mainstream legal scholarship was mostly normative. Nonetheless,<br />
many legal scholars realized the discretion in legal reasoning by the mid-1960s and<br />
were calling for a more flexible approach <strong>to</strong> it. 58 Contemporary legal problems also<br />
raised other responses, such as a call for closer cooperation between legal scholarship<br />
and social sciences, 59 and a semantic analysis of legal rules. 60 Especially in Norway,<br />
56 Rune Slagstad, Norwegian Legal Realism since 1945, 35 Scandinavian Studies in Law 215–233 (1991).<br />
57 Björn Ahlander, Är juridiken en vetenskap? (S<strong>to</strong>ckholm: Hugo Cebers Förlag 1950); Per Olof Ekelöf,<br />
Är den juridiska doktrinen en teknik eller en vetenskap? (Lund: C.W.K. Gleerup 1951).<br />
58 Magnus Aarbakke, Harmonisering av rettskilder TfR 1966, 514–518; Johs. Andenæs, Høyesterett som<br />
politisk organ, Lov og rett 1965, 23; Aubert 1964, supra n. 42 at 113; Frede Castberg, Utviklingslinjer i<br />
den juridiska tenkning i Norge siden 1814, TfR 1964, 126–127; Frede Castberg, Menneskerettighetene,<br />
grunnloven og doms<strong>to</strong>lene, TfR 1965, 392; Nils Herlitz, Politik i rättslivet, TfR 1966, 162–164; Aksel H.<br />
Hillestad, Rettens eksistens, TfR 1965, 156; Ole Lando, Doms<strong>to</strong>lene og billighed: Nogle retssammenlignende<br />
betragtninger, SvJT 1967, 1, 4–6.<br />
59 Kurt Grönfors, Företagarbegreppet i konkurrensbegränsningslagen, SvJT 1965, 81.<br />
60 Per Olof Ekelöf, Semantik och juridik, SvJT 1966, 497–505.<br />
169
legal scholars began <strong>to</strong> emphasize the importance of court practice as a legal source, 61<br />
which reflected the realistic tendencies of legal scholarship of the 1960s. Various fac<strong>to</strong>rs<br />
affected the pragmatic grip on jurisprudence, but no critical paradigm prevailed.<br />
The mainstream jurisprudence acknowledged that legal reasoning was not completely<br />
logical or formalist, but the majority of scholars endorsed a more realistic standpoint<br />
simply in order <strong>to</strong> maintain the rationality of legal reasoning. There was a trend away<br />
from strict rule adherence and logical deduction, but there was no major drive <strong>to</strong>ward<br />
political or value-oriented argumentation. The emphasis on realist arguments meant<br />
simply an urge <strong>to</strong> make legal reasoning correspond with contemporary problems while<br />
still keeping it rational, neutral, and unbiased.<br />
Despite the pragmatic trend in Scandinavian jurisprudence, more critical voices<br />
were also heard. In 1966, the Norwegian legal scholar Anders Bratholm argued that<br />
politics was everywhere in law, including legislation, adjudication, and scholarship. The<br />
relation between law and politics was thus <strong>to</strong> be critically analyzed, he continued, because<br />
social motives and their preferences had an impact on legal activity. 62 Bratholm<br />
was inspired by the postwar sociology of law and the ongoing debates on the constitutional<br />
law in Norway. 63 His article reflected the emerging critical view that since law<br />
and politics were inevitably connected, the political motives behind law were <strong>to</strong> be analyzed<br />
if one was <strong>to</strong> have an accurate image of law. By the mid-1960s, the critical mood<br />
was not yet mature but it was evidently there waiting for more influences and proponents<br />
<strong>to</strong> carry it further.<br />
A signi<strong>fi</strong>cant impetus for Scandinavian critical legal scholarship emerged in the<br />
most turbulent year, 1968, when a Swedish and a Norwegian scholar both published<br />
books with alternative methods and theories on law. These were Juridik och samhällsdebatt<br />
(Jurisprudence and Social Debate) by Per Olof Bolding 64 and Grunnlovens<br />
grenser (The Limits of the Constitution) by Carl August Fleischer. 65 Although these<br />
books were of quite different character, they both expounded an alternative theory of<br />
law that would be oriented <strong>to</strong>ward contemporary social problems from a leftist perspec-<br />
61 Tore Sandvik, Entreprennørrisikoen (Oslo 1966), 68; Arvid Frihagen, Villfarelse og ugyldighet i forvaltningsretten<br />
(Oslo 1966), 190. See Slagstad 1991, supra n. 56 at 227.<br />
62 Anders Bratholm, Jus og politikk: Refleksjoner etter en diskusjon, Lov og rett 1966, 102–103, 106–<br />
112, 114–117.<br />
63 There was an intense debate on the Norwegian constitutional law in the mid-1960s, which will be analyzed<br />
in section 5 of this chapter.<br />
64 Per Olof Bolding, Juridik och samhällsdebatt (S<strong>to</strong>ckholm: Almqvist & Wiksell 1968). Bolding participated<br />
in the early studies on sociology of law and wrote the <strong>fi</strong>rst book in Scandinavia with a systematic<br />
theory of critical legal scholarship. Otherwise his contribution <strong>to</strong> the critical scholarship was inconsiderable.<br />
65 Carl August Fleischer, Grunnlovens grenser: For lovregulert fastsetting av erstatning ved ekspropriasjon,<br />
─ særlig ved verdistigning som ikke skyldes grunneiers innsats (Oslo: Universitetsforlaget 1968).<br />
Fleischer was a lone wolf in Norwegian critical legal scholarship. He did not participate in the general<br />
projects and he was not a Marxist legal scholar. However, he contributed a vast amount of literature on<br />
realist legal reasoning and endorsed an alternative view of constitutional law. His literature will be dealt<br />
with in more detail in the section on constitutional law.<br />
170
tive. They represented the <strong>fi</strong>rst expressions of the new legal realism that was about <strong>to</strong><br />
develop in<strong>to</strong> critical legal scholarship.<br />
Per Olof Bolding, who in the late 1960s was a professor of procedural law at the<br />
University of Lund, had studied the law of evidence and arbitration during his early<br />
career and was by no means unaware of the problems of judicial decision-making in the<br />
late 1960s. In fact, he had participated in sociology of law, and argued in 1965 that both<br />
judicial decision-making and legal scholarship should pay more attention <strong>to</strong> the social<br />
facts of the case. 66 In 1968, he <strong>to</strong>ok his critical arguments further and developed a social<br />
theory of law. Law, he claimed, always responded <strong>to</strong> particular social problems and<br />
therefore it was necessary <strong>to</strong> have knowledge of the society in order <strong>to</strong> understand the<br />
law. Furthermore, he argued, legal rules were simply an end <strong>to</strong> reasoning that could<br />
always be manipulated <strong>to</strong> reach one of many contradic<strong>to</strong>ry possibilities. Thus, <strong>to</strong> make<br />
judicial decision-making correspond with social reality, it had <strong>to</strong> be made both social<br />
and open. One had <strong>to</strong> discuss social problems and all the possible solutions, and legal<br />
rules should merely circumscribe those solutions. 67<br />
Bolding’s book was applied sociological jurisprudence with a critical perspective,<br />
and the argument that law and society were inevitably connected was taken <strong>to</strong> the extreme.<br />
Sociology of law had already paid attention <strong>to</strong> the association between society<br />
and judicial decision-making and legal reasoning, but now they were intertwined in a<br />
way that made it impossible <strong>to</strong> keep them separate. It is dif<strong>fi</strong>cult <strong>to</strong> analyze Bolding’s<br />
influence because there was no detailed documentation in his book, but it obviously<br />
built on Scandinavian realism and the recent debates on social problems. 68 Bolding was<br />
a post-realist, influenced by the rise of the sociology of law, and taking an active part in<br />
the contemporary discussions. His theory was sociological jurisprudence par excellence:<br />
since neither law nor legal scholarship was au<strong>to</strong>nomous, sociological data should be<br />
integrated in<strong>to</strong> them. His comprehensive criticism covered the whole area of law, endorsing<br />
a fundamental revamp of the tradition.<br />
Bolding’s theory attracted some attention that pointed out some controversial issues<br />
in legal thought. Legal theorist Stig Strömholm criticized Bolding’s theory for going<br />
<strong>to</strong>o far. He argued that since the rule of law required a degree of formalism,<br />
Bolding’s theory led <strong>to</strong> arbitrary judicial decision-making. 69 In addition <strong>to</strong> judicial decision-making,<br />
the problem of the relationship between sociology and legal scholarship<br />
also surfaced. Strömholm argued that legal scholarship was <strong>to</strong> be mostly normative,<br />
although sociology was useful <strong>to</strong> a certain extent, although least of all for adjudica-<br />
66 Per Olof Bolding, Den felaktiga domen, SvJT 1965, 469, 475.<br />
67 Bolding 1968, supra n. 64 at 18–27, 50–63, 70, 78–88. Bolding’s theory of argumentation was built on<br />
Bolding 1968(a), supra n. 47. See also the theory in English, Per Olof Bolding, Reliance on Authorities or<br />
Open Debate? Two Models of Legal Argumentation, 13 Scandinavian Studies in Law 59–71 (1969).<br />
68 Bolding had participated in social debates in the 1960s. (See Bolding 1968, supra n. 64 at 121.) Otherwise<br />
the list of explanations in id. at 121–124 refers mostly <strong>to</strong> literature on Scandinavian realism, Swedish<br />
court cases, and newspaper articles.<br />
69 Stig Strömholm, En märklig me<strong>to</strong>dlära: Anteckningar till en nyutkommen bok, SvJT 1969, 660–661.<br />
171
tion. 70 Staffan Rylander replied <strong>to</strong> Strömholm by arguing that sociology helped <strong>to</strong> understand<br />
the nature of law better than traditional legal scholarship. 71 The conflict between<br />
the traditional view that social sciences simply assisted legal scholarship, and the<br />
critical view that social sciences were elementary <strong>to</strong> it, concerned the nature of legal<br />
scholarship in the <strong>fi</strong>rst place. Traditionalists wanted <strong>to</strong> maintain the au<strong>to</strong>nomy of legal<br />
scholarship whereas the critical scholars sought <strong>to</strong> displace it with the integration of<br />
social sciences. By the early 1970s, the conflict had become more evident.<br />
The problem was also about the nature of adjudication. The critical mood that was<br />
appearing denied the possibility of formalism al<strong>to</strong>gether. Although even the more conservative<br />
scholars such as Strömholm agreed that sociology could be of assistance <strong>to</strong><br />
legal research in certain cases, they nonetheless wanted <strong>to</strong> maintain a minimum amount<br />
of formalism because that was needed lest law became arbitrary and biased. For the<br />
critical scholars, however, since law was already arbitrary and biased, the integration of<br />
sociology in<strong>to</strong> legal scholarship would only make it more honest, critical, and realist.<br />
Here again the problem was differing perceptions about adjudication. Just as the American<br />
scholars debating the neutral principles disagreed on the nature of judicial decisionmaking,<br />
the Swedish scholars disagreed on it while debating sociology of law. The<br />
problem was the same, but the Scandinavian scholars simply approached it from a different<br />
perspective.<br />
Judicial decision-making was indeed an important problem for legal scholars. The<br />
Norwegian Carl August Fleischer also developed a comprehensive alternative theory of<br />
judicial decision-making. Whereas Bolding had tackled every possible problem from<br />
legal education <strong>to</strong> adjudication, Fleischer concentrated on adjudication in constitutional<br />
problems, although his theory <strong>to</strong>uched several aspects of law indirectly. According <strong>to</strong><br />
him, <strong>to</strong> put it simply, constitutional interpretation and adjudication changed in the<br />
course of time, but indoctrination and education had stabilized them. Thus, whenever a<br />
problem regarding the constitution arose, one had <strong>to</strong> take in<strong>to</strong> account all the relevant<br />
social issues that the problem concerned in order <strong>to</strong> devise an appropriate solution. The<br />
constitution was therefore a developing institution. 72<br />
It is important <strong>to</strong> note that this theory was targeted <strong>to</strong>ward practical problems relating<br />
<strong>to</strong> the interpretation of the Norwegian Constitution in the 1960s. 73 The purpose of<br />
the flexible interpretation was <strong>to</strong> guarantee the protection of social values over private<br />
property rights. Fleischer constructed a realist theory that would take account of social<br />
values and facts instead of sticking <strong>to</strong> the letter of the constitution and maintaining loyalty<br />
<strong>to</strong> the legal principles it seemed <strong>to</strong> protect on the face of it. He did not rely on con-<br />
70 Stig Strömholm, Något om sociologiens betydelse för juridiken, SvJT 1970, 101, 105, 117–121.<br />
71 Staffan Rylander, Strömholm och rättssociologin, SvJT 1970, 484–487. See Strömholm’s reply <strong>to</strong><br />
Rylander, Stig Strömhom, Genmäle, SvJT 1970, 488–491.<br />
72 Fleischer 1968, supra n. 65 at 21–57, 86–91, 152–177.<br />
73 As will be seen later, there were intense debates concerning the interpretation of the constitution in<br />
Norway in the 1960s. One major problem concerned the natural areas surrounding Oslo, the capital city<br />
of Norway. The owners wanted <strong>to</strong> construct buildings but activists such as Fleischer thought that the area<br />
should be protected because of its environmental values.<br />
172
temporary critical theories, however, constructing his theory on Norwegian constitutional<br />
scholarship and legal theory and seeking <strong>to</strong> point out their inconsistencies and<br />
inadequacies in modern society. His ideas obviously reflected the social ideology and<br />
optimism over the social planning of the time. Fleischer sought <strong>to</strong> facilitate constitutional<br />
interpretation that would have allowed the legisla<strong>to</strong>r <strong>to</strong> regulate society without<br />
being overly restricted by the constitutional standards which, he claimed, were mostly<br />
relics of an ancient society without perfect correspondence <strong>to</strong> contemporary times. It is<br />
good <strong>to</strong> keep in mind that the theory sought <strong>to</strong> modify the fundamental premises and<br />
principles of the legal system of Norway <strong>to</strong> respond <strong>to</strong> the values that the political left<br />
considered important in the 1960s. In spite of the political preferences, his theory indicated<br />
a flexible and realistic legal interpretation and reasoning in which social data was<br />
more important than the letter of the law.<br />
The problem of legal interpretation and its potential was becoming pressing by the<br />
early 1970s. Legal scholars generally realized that neither adjudication nor jurisprudence<br />
was formalist but both involved extra-legal material that was <strong>to</strong> be taken in<strong>to</strong> account.<br />
Thus, scholars endorsed scienti<strong>fi</strong>c analysis of values in law 74 or supported legal<br />
scholarship with political goals. 75 The fundamental point, however, was <strong>to</strong> maintain the<br />
rationality of law and legal scholarship, even though they were <strong>to</strong> be mixed with elements<br />
of values and politics. The Norwegian legal scholar Torstein Eckhoff, who<br />
strongly supported sociological analysis of law, argued that although extreme theories<br />
such as Bolding’s went <strong>to</strong>o far in their claims, legal reasoning needed more flexibility. 76<br />
Jørgen Dalberg-Larsen, a Danish scholar who was also <strong>to</strong> become an eager proponent of<br />
sociological jurisprudence, wrote in 1969 that although there was no point in abandoning<br />
the traditional methods of legal scholarship, there was a need <strong>to</strong> consider the connection<br />
between theory and practice further and <strong>to</strong> use social science more in legal<br />
scholarship. 77<br />
Many legal scholars in the early 1970s argued for openness in legal reasoning so<br />
that judicial decision-making could respond <strong>to</strong> legal problems better. 78 Agneta Charpentier,<br />
who participated in the Scandinavian cooperation in sociology of law, wrote that<br />
since various fac<strong>to</strong>rs affected judicial decision-making, behavioral studies on the judges<br />
would be useful in analyzing the ways the judges responded <strong>to</strong> the social facts presented<br />
74 Stig Jørgensen, Argumentation and Decision, 269–270, 284, in Festskrift til professor, dr. jur. & phil<br />
Alf Ross (København: Juristforbundets forlag 1969), 261–284.<br />
75 Jan Hellner, Syften och uppgifter för rättsvetenskaplig forskning, 222–223, in Festskrift til Alf Ross<br />
1969, supra n. 74 at 205–229.<br />
76 Torstein Eckhoff, Bokanmeldelse [Juridik och samhällsdebatt], TfR 1969, 639–640.<br />
77 Jørgen Dalberg-Larsen, Er der grundlag for en juridisk me<strong>to</strong>delære? Om forholdet mellem retsvidenskab,<br />
retspraksis og den juridiske me<strong>to</strong>de, TfR 1969, 575–576, 582, 584, 598–603.<br />
78 Harry Guldberg, Om brottspåföljder och samhällsskyddet, SvJT 1971, 170–174; Harry Guldberg, Om<br />
differentieringen inom kriminalvård, SvJT 1973, 242; Nils Herlitz, 1974 års regeringsform? Kommentarer<br />
till grundlagberedningens förslag, SvJT 1973, 242; Carl Martin Roos, Tvetydigheter i avtal, SvJT<br />
1972, 626–627, 638.<br />
173
in the cases. 79 The changed social circumstances had given rise <strong>to</strong> new problems which<br />
required new methods in solving them, and the new theoretical interests provided new<br />
opportunities for legal research. Legal scholars had <strong>to</strong> contemplate how <strong>to</strong> make legal<br />
practice and theory more rational by modern standards. In this respect, realist and behavioral<br />
approaches were seen useful in explicating the nature of the law.<br />
The problem was thus not whether there was a need for social legal reasoning and<br />
use of the social sciences in legal research but <strong>to</strong> what extent and how it was <strong>to</strong> be<br />
achieved. The more traditional scholars wanted <strong>to</strong> maintain the au<strong>to</strong>nomy of legal<br />
scholarship and the logical nature of legal reasoning as far as possible, whereas the<br />
more critical scholars wanted <strong>to</strong> integrate legal scholarship with social sciences and turn<br />
legal reasoning in<strong>to</strong> applied sociology. The critical thought that was becoming more<br />
widespread in the early 1970s was influenced by this controversy, whereas the majority<br />
of the legal scholars balanced between the two extremes.<br />
For instance, Stig Jørgensen developed an analytical-hermeneutical theory of law<br />
throughout the early 1970s that would maintain the fundamental premises of traditional<br />
legal scholarship but modify them <strong>to</strong> include aspects of social science, values, and politics.<br />
According <strong>to</strong> him, law was not simply a system of rules but part of a wider context.<br />
80 A judicial decision was thus the outcome of an interpretation of legal rules and<br />
principles, affected by values and ideologies <strong>to</strong> a certain extent. 81 This also applied <strong>to</strong><br />
legal scholarship. 82 Therefore, he argued, it was important <strong>to</strong> analyze the effects of extra-legal<br />
materials on legal language. 83 Jørgensen was following many of the theoretical<br />
and philosophical currents of the time. His theory was not radically critical, but it denied<br />
the possibility of au<strong>to</strong>nomous legal scholarship and reasoning. With the help of<br />
linguistic philosophy, sociology, and his<strong>to</strong>ry, he sought <strong>to</strong> de<strong>fi</strong>ne a theory that could<br />
surpass the formalist language of legal rules and principles and analyze the reality behind<br />
them. It was normal at the time <strong>to</strong> point out the inaccuracies of legal language and<br />
<strong>to</strong> construct theories <strong>to</strong> criticize it. A frequent strategy in the early 1970s was <strong>to</strong> point<br />
out the problems of strict de<strong>fi</strong>nitions and <strong>to</strong> emphasize interpretation.<br />
One important <strong>to</strong>pic that was of interest <strong>to</strong> legal scholars was the concept of justice.<br />
This, like so many other scholarly problems of the time, emanated from the concept<br />
of justice de<strong>fi</strong>ned by the Danish legal philosopher Alf Ross, who was considered <strong>to</strong><br />
79 Agneta Charpentier, Undersökningar av rättspersonal, 103–104, 109, in Møller Nielsen (ed.) 1970,<br />
supra n. 52 at 103–110.<br />
80 Stig Jørgensen, Ret og samfund (København: Berlingske forlag 1970), 7–9, 20–25.<br />
81 Stig Jørgensen, Norm og virkelighed, TfR 1970, 498–502; Jørgensen 1970, supra n. 80 at 90–102.<br />
82 Stig Jørgensen, Grundtræk af de danske retskilders his<strong>to</strong>rie, TfR 1971, 201.<br />
83 Stig Jørgensen, Hermeneutik og for<strong>to</strong>lkning, TfR 1973, 626, 632. Jørgensen himself labeled his theory<br />
analytical-hermeneutical. (Stig Jørgensen, Idealisme og realisme i retslæren, JFT 1976, 4.) Dalberg-<br />
Larsen writes that it is dif<strong>fi</strong>cult <strong>to</strong> de<strong>fi</strong>ne Jørgensen’s theory because it has such a wide basis, but it nonetheless<br />
combines elements of philosophy, his<strong>to</strong>ry, and sociology. (Jørgen Dalberg-Larsen, Dansk<br />
rets<strong>fi</strong>loso<strong>fi</strong>: Udviklingslinjer og portrætter (København Jurist- og Økonomforbundets forlag 2006), 137.)<br />
The basis of his theory is <strong>to</strong> be found in Jørgensen 1970, supra n. 80, and the articles complement and<br />
de<strong>fi</strong>ne particular aspects of his theory. Nevertheless, the hermeneutical tradition combined philosophical<br />
elements with doctrinal analysis. There was also an influential tradition of analytical hermeneutics in<br />
Finnish legal scholarship of the 1970s, as will be seen later.<br />
174
e the most influential legal theorist at that time. He was a Scandinavian realist whose<br />
later theory sought <strong>to</strong> draw sharp distinctions between law and morals on the one hand<br />
and legal scholarship and politics on the other. His willingness <strong>to</strong> expunge out unrealistic<br />
metaphysical considerations from law turned his theory in<strong>to</strong> a form of positivism that<br />
did not please the critical scholars of the time. 84 Ross’s theory was labeled the “ruling<br />
theory” in Scandinavian legal scholarship, 85 so that those legal scholars who wanted <strong>to</strong><br />
criticize the dominant paradigm of jurisprudence often chose Ross as their target.<br />
According <strong>to</strong> Ross, justice was not a natural, metaphysical concept. Nor was it a<br />
general political goal. Justice was always the practical application of a legal rule in an<br />
actual case. 86 Aubert had criticized this conventionalist-positivist de<strong>fi</strong>nition of justice in<br />
the mid-1960s by arguing that the positivist construction of justice excluded the possibility<br />
of analyzing justice scienti<strong>fi</strong>cally. Therefore, wrote Aubert, justice had <strong>to</strong> be unders<strong>to</strong>od<br />
in terms of values and policies because it could then be placed under critical<br />
scienti<strong>fi</strong>c scrutiny. 87 The difference in perspective was already apparent in the 1960s.<br />
Traditional legal scholarship observed legal concepts in the context of legal rules and<br />
judicial decisions and sought <strong>to</strong> exclude the influence of values, ideologies, and policies<br />
from the analysis. The alternative, on the other hand, argued that the values, ideologies<br />
and policies were such fundamental parts of law that <strong>to</strong> ignore them dis<strong>to</strong>rted the image<br />
of law and excluded the possibility of scienti<strong>fi</strong>c analysis. Writing in the 1960s and from<br />
84 On Ross’s theory, see Alf Ross, Om ret og retfærdighed: En indførelse i den analytiske rets<strong>fi</strong>loso<strong>fi</strong> (Nyt<br />
nordisk forlag Arnold Busck 1971) (1953).<br />
85 Peter Blume, Kritik og forandring, Juristen 1974, 235; Anders Fogelklou, Materialistisk strukturförklaring<br />
eller viljans dialektik: Sovjetiska aspekter på den marxistiska rättsteorin, TfR 1973, 88; Preben Stuer<br />
Lauridsen, Studier i retspolitisk argumentation (København: Juristforbundets forlag 1974), 127; Nils<br />
Kristian Sundby, Naturrettslig legitimasjon for normativ kompetanse, TfR 1975, 344; Henrik Zahle,<br />
Kritik af en retsteori: Om Alf Ross’ opfattelse af retsvidenskaben, TfR 1974, 333–334. Labeled the “ruling<br />
legal theorist”, Ross became the target of the critical legal scholars of the 1960s and 1970s. As Dalberg-Larsen<br />
writes, the period after the 1960s is characterized by a plurality of legal theories but these<br />
shared the criticism of Ross, albeit from different points of view. (Dalberg-Larsen 2006, supra n. 83 at<br />
201–202.) Of course, Ross’s theory was <strong>fi</strong>rst published in 1953 and was already criticized then. (Vilhelm<br />
Aubert, Begrepet “gjeldende rett”: Noen sosiologiske synspunkter i tilknytning til Alf Ross’ “Om ret og<br />
retfærdighed”, TfR 1954, 376–394.) Aubert criticized the way Ross constructed the concept of “the law in<br />
force” through studying court practice without however providing an adequate theory for including the<br />
personal biases of the judge in the analysis; his theory thus failed <strong>to</strong> be useful for reforming legal scholarship<br />
and <strong>to</strong> be of interest from a social scienti<strong>fi</strong>c perspective. This was so because Ross wanted <strong>to</strong> maintain<br />
legal science as an au<strong>to</strong>nomous science within the social sciences and because he was a devoted<br />
positivist. (Id. at 384–385, 388–390, 393.) The later criticism of Ross’s theory was also largely built on<br />
these premises.<br />
It is indeed an interesting question why it was particularly Ross who was criticized. Dalberg-Larsen<br />
writes that it is odd why so much effort went in<strong>to</strong> criticizing a theory that was already somewhat outdated<br />
when it was <strong>fi</strong>rst published. (Dalberg-Larsen 2006, supra n. 83 at 202.) It seems that criticism often needs<br />
a face, and it was Ross who was chosen probably because he was an influential and considerable <strong>fi</strong>gure in<br />
Scandinavian legal scholarship. The purpose of the criticism of Ross was probably <strong>to</strong> criticize traditional<br />
legal scholarship. It has <strong>to</strong> be remembered that, even if Ross’ theory did not represent the paradigm of law<br />
in every detail, it nonetheless was probably the closest expression of it. Realism had made its way in<strong>to</strong><br />
Scandinavian legal thinking, as has been noted, and there was a paradigm mixed with elements of traditional<br />
conceptualism and empirical realism.<br />
86 Ross 1971, supra n. 84 at 365.<br />
87 Vilhelm Aubert, Rettferdighet i sosiologisk belysning, Tidsskrift for samfunnsforskning 1966, 101,<br />
104–117.<br />
175
the position of a sociologist, Aubert was promoting his concept of sociological jurisprudence.<br />
In any event, he had set the path for the criticism of the realist exclusion of values<br />
from legal analysis. Scholars of the 1970s continued this tradition and brought some<br />
new aspects <strong>to</strong> the problem.<br />
The notions of the concept of justice reflected the transformation of legal scholarship.<br />
Karen Dykjær Hansen analyzed the various concepts of justice, concluding that<br />
respect for humanity was the only constant principle. Otherwise the precise de<strong>fi</strong>nition<br />
depended on argumentation, which, however, ought <strong>to</strong> be done on the basis of legal<br />
principles. 88 Although her starting-point was the legal system and legal principles, she<br />
stressed the ambiguity of legal argumentation and the impossibility of incontrovertible<br />
de<strong>fi</strong>nitions. Torstein Eckhoff examined the concept of justice from a very different point<br />
of view. According <strong>to</strong> him, the concept of justice was ambiguous because it depended<br />
on the perspective, and therefore he studied people’s conceptions of justice and their<br />
impact and effects on the strategic behavior and market transactions. 89 Eckhoff’s postrealist<br />
conception of law and justice was empirical and included values and their practical<br />
presentation in legal reality. Moreover, on the basis of his study, Eckhoff de<strong>fi</strong>ned<br />
justice as a form of equal distribution found in between the free pursuance of sel<strong>fi</strong>sh<br />
interests on the one hand and collective ownership and an absolutely equal distribution<br />
on the other. 90 Eckhoff was thus trying <strong>to</strong> <strong>fi</strong>nd a balance between competing social ideologies.<br />
Despite the differing approaches, both theories emphasized the impossibility of<br />
de<strong>fi</strong>ning justice in accurate and de<strong>fi</strong>nite terms and encouraged diversi<strong>fi</strong>ed argumentation<br />
in de<strong>fi</strong>ning it. Values and open argumentation were becoming essential for legal scholarship.<br />
The rise of the new realism that emphasized an open discourse on values in law<br />
was making its way in other areas of jurisprudence <strong>to</strong>o. An important <strong>to</strong>pic was the doctrine<br />
of legal sources and the concept of valid law in this respect. Here again, Torstein<br />
Eckhoff was innovative. In his doctrine on legal sources, Eckhoff distanced himself<br />
from the traditional distinction between <strong>fi</strong>nding the sources and revealing their meaning.<br />
He also emphasized the possibility of interpretation and the influence of personal bias in<br />
judicial decision-making, arguing further that realistic considerations and values were a<br />
part of legal reasoning. 91<br />
It has been noted that this was the <strong>fi</strong>rst time that considerations on circumstances<br />
were explicitly analyzed as a part of a legal doctrine, although Eckhoff was not constructing<br />
a radically deviant or new theory, but simply placing these considerations<br />
88 Karen Dykjær Hansen, Kan retfærdighed de<strong>fi</strong>neres? TfR 1970, 67–98.<br />
89 Torstein Eckhoff, Rettferdighet ved utveksling og fordeling av verdier (Oslo: Universitetsforlaget<br />
1971), esp. at 12–25, 37–52, 58–118, 124–128. An English and slightly modi<strong>fi</strong>ed version is Torstein<br />
Eckhoff, Justice: Its determinants in social interaction (Rotterdam: Rotterdam University Press 1974).<br />
Unique <strong>to</strong> Eckhoff’s study was its method. (Mogens Blegvad, Litteratur [Rettferdighet], Tidskrift for<br />
samfunnsforskning 1972, 371–373.)<br />
90 Eckhoff 1971, supra n. 89 at 375–389.<br />
91 Torstein Eckhoff, Rettskildelære (Oslo: Johan Grundt Tanum forlag 1971), 13, 16–21, 28–29, 85–108,<br />
312–329.<br />
176
among legal sources. 92 Eckhoff’s theory on the sources of law represented the new realism<br />
that was coming <strong>to</strong> the fore of Scandinavian legal scholarship, but it was not radical.<br />
His purpose was <strong>to</strong> point out the widely acknowledged fact that judicial decisionmaking<br />
contained various elements and was not logical formalism. It is important, however,<br />
that scholars were at pains <strong>to</strong> develop a theory that would suit the modern needs<br />
and particularly the relationship between law, values, and politics.<br />
A point of origin of critical legal scholarship was the dissonance between alternative<br />
and critical perspectives on law. Karen Hansen also distanced herself from Ross’s<br />
theory and constructed a theory of valid law that combined traditional legal scholarship<br />
with contemporary legal practice. According <strong>to</strong> her, law was those rules that were applied<br />
in legal practice, but it was also important <strong>to</strong> analyze legal arguments because they<br />
raised the ideological elements within law. 93 She thought that her alternative method<br />
was useful in analyzing the relation between law and politics. 94 Hansen’s was a postrealist<br />
theory, aiming <strong>to</strong> bridge the gap between theory and practice, and replacing<br />
Ross’s theory with one that could be used with respect <strong>to</strong> values and politics. It thus<br />
reflects the broader change in legal scholarship, although it was not a critical theory.<br />
The gulf between critical scholars and those who wanted <strong>to</strong> modify the tradition<br />
without changing its fundamental basis was apparent. Critical scholars were displeased<br />
with the loyalty <strong>to</strong> the tradition displayed by the alternative legal scholarship. Preben<br />
Stuer Lauridsen had already criticized Hansen’s theory for its ambiguity, 95 but the problem<br />
also concerned a more fundamental point. Hansen had noted that there was an element<br />
of indoctrination in legal scholarship which could, however, be overcome since<br />
contradic<strong>to</strong>ry arguments were logically possible. 96 A young Marxist legal scholar, Peter<br />
Blume, was more critical of the indoctrination involved in legal education and argued<br />
that Hansen’s notion was self-contradic<strong>to</strong>ry. 97 The problem between an alternative and a<br />
critical view was that the former sought <strong>to</strong> change certain premises of the tradition while<br />
maintaining it as far as possible. A critical view, on the other hand, held that the basis of<br />
traditional scholarship was fundamentally false. The unwillingness of the majority of<br />
the profession <strong>to</strong> recognize the fundamental flaw was a major fac<strong>to</strong>r for the critical legal<br />
scholars in the development of their arguments.<br />
The late 1960s and early 1970s was a transformative period for Scandinavian jurisprudence.<br />
The realism of the early twentieth century had left a legacy of pragmatism,<br />
and by the early 1970s, new realism had emerged and established a strong position. The<br />
new realism held that since law had <strong>to</strong> be unders<strong>to</strong>od in practical circumstances, normative<br />
legal scholarship was not meaningful, and unlike its predecessor, the new realism,<br />
rather than being anti-metaphysical, accepted the position of values and politics in law<br />
92 Slagstad 1991, supra n, 56 at 229–230.<br />
93 Karen Dykjær Hansen, Gældende ret og juridisk me<strong>to</strong>de, Juristen 1971, 253–263.<br />
94 Karen Dykjær Hansen, En REPLIK vedrørende spørgsmålet om gældende ret og juridiske me<strong>to</strong>de,<br />
Juristen 1971, 494–498.<br />
95 Preben Stuer Lauridsen, Retsbegrebet, Juristen 1971, 367–374.<br />
96 Hansen 1971, supra n. 93 at 263.<br />
97 Peter Blume, Det juridiske studium: Kritik og analyse, Juristen 1972, 170, n. 50.<br />
177
and sought <strong>to</strong> analyze them openly. The Scandinavian debates on legal reasoning<br />
strongly resembled the American debates on neutral principles, the question being about<br />
the nature and extent of the impact of extra-legal fac<strong>to</strong>rs on judicial decision-making.<br />
Both in the United States, as mentioned in the previous chapter, and in Scandinavia, as<br />
will soon be seen, the disagreement on legal reasoning intensi<strong>fi</strong>ed the dynamics of<br />
change and eventually led <strong>to</strong> the emergence of a radical critique of law. In a theoretical<br />
sense, the critical thought developed from the combination of the methods of sociology<br />
of law and new realism on the one hand, and from the conflict between the traditional<br />
faith in the rationality of legal scholarship and the radical argument on the political nature<br />
of law on the other.<br />
2.4 Alternative legal scholarship in the early 1970s<br />
Realistic insights and alternative theories of law had made their way in<strong>to</strong> legal scholarship<br />
by the beginning of the 1970s. The alternative branch that had continued the legacy<br />
of legal realism had grown during the postwar decades, and now it was coming <strong>to</strong> be a<br />
part of the mainstream. As Eckhoff and Jørgensen noted, by now at least it was generally<br />
accepted that a legal decision was not based simply on rules but also on various considerations<br />
on facts and values. 98 A central concern of the legal scholars of the early<br />
1970s was <strong>to</strong> develop theories <strong>to</strong> make both adjudication and legal scholarship meet the<br />
needs of the new society. The rise of the new realism, social turbulence, and the emergence<br />
of the critical academic tradition drove the development of critical legal scholarship.<br />
The rising interest in the critical analysis of the reality of law was evident in the<br />
increasing attraction of sociological jurisprudence. The interest in sociology of law continued<br />
<strong>to</strong> increase in the early 1970s. A collection of both classic and contemporary articles<br />
was translated in<strong>to</strong> Swedish, 99 and a Swedish anthology on the fundamental aspects<br />
of sociology of law was published as an introduction <strong>to</strong> the discipline. 100 In addition,<br />
Dalberg-Larsen wrote a systematic and comprehensive textbook on the <strong>to</strong>pic. 101 Sociological<br />
studies of law were important, as the Norwegian legal sociologist Thomas<br />
Mathiesen wrote, since they helped <strong>to</strong> examine law as an outcome of social power and<br />
as a <strong>to</strong>ol of masking and legitimizing social power relations. 102 Sociological studies<br />
concerned, for example, the possibility of changing social behavior through legal regu-<br />
98 Eckhoff 1971, supra n. 91 at 195; Jørgensen 1970, supra n. 80 at 97.<br />
99 Vilhelm Aubert (ed.), Lag, samhälle, individ (S<strong>to</strong>ckholm: Rabén & Sjögren 1972). The collection was<br />
originally published in English in 1969.<br />
100 Stig Edling & Göran Elwin (eds.), Rättssociologi: Om lag, konflikt och behov (S<strong>to</strong>ckholm: Wahlström<br />
& Widstrand 1973).<br />
101 Jørgen Dalberg-Larsen, Retssociologi: Problemstillinger og teorier (København: Akademisk forlag<br />
1973).<br />
102 Thomas Mathiesen, Inledning, 9–10, in Edling & Elwin (eds.) 1973, supra n. 100 at 9–14.<br />
178
lation, the effects of the administration, and the functions and effects of legal aid. 103<br />
Because of the critical potential, legal sociology was often used as a means for critical,<br />
or even Marxist, insights in<strong>to</strong> law. The nature of the alternative scholarship was thus<br />
acquiring a more critical <strong>to</strong>ne.<br />
The new movements were not uncritically accepted. One of the defenders of a<br />
more traditional legal scholarship was Jes Bjarup, who wrote that sociological legal<br />
scholars had exaggerated the role of the person of the judge and values in judicial decision-making<br />
because, he argued, judges mostly sincerely followed legal materials while<br />
deciding cases. He also criticized the recent attempts <strong>to</strong> change the methodology of legal<br />
scholarship <strong>to</strong> include values because, according <strong>to</strong> him, the values that had been<br />
included in law were “legal values”. 104 Bjarup criticized the new realism both for its<br />
premises on the theory on legal reasoning and its claims for integrating legal scholarship<br />
in<strong>to</strong> social science. He thus represented the most normative branch of traditional legal<br />
scholarship by emphasizing the fact that legal scholarship should focus on the “ought”<br />
in law. The traditionalist view held that legal phenomena could be studied from a purely<br />
legal perspective without mixing any personal elements in<strong>to</strong> the analysis but still keeping<br />
it rational and objective.<br />
Despite the theoretical details, it was the claims for rationality and objectivity of<br />
the traditional legal scholarship which the critical scholars attacked. In 1974, Henrik<br />
Zahle, a young post-graduate student on procedural law, published his lengthy criticism<br />
of Ross’s legal theory, attacking the strict separation between legal scholarship and politics<br />
in particular. According <strong>to</strong> him, the fact that values and policies were excluded from<br />
legal scholarship did not mean that they had no effect on it. On the contrary, they always<br />
had effect on research but the traditional scholarship simply denied this fact. Thus,<br />
Zahle argued, without considering the effects of the economy, politics, and ideology,<br />
one could not obtain a realistic picture of the law. 105 The rising critical legal scholarship<br />
abhorred the sharp division between law and politics. Zahle’s analysis was already<br />
pointing in the critical direction where all kinds of social values would be included in<br />
legal studies in order <strong>to</strong> make both law and legal scholarship correspond with the social<br />
103 See the articles in Edling & Elwing (eds.) 1973, supra n. 100.<br />
104 Jes Bjarup, Retskildelære, TfR 1974, 145–174. Bjarup’s article was basically a critical review of Eckhoff’s<br />
doctrine on legal sources (Eckhoff 1971, supra n. 91), but he also presented his theory on the issue.<br />
Bjarup was positivist in the Kelsenian sense, endorsing a highly normative legal scholarship that sought<br />
<strong>to</strong> minimize the position of extra-legal fac<strong>to</strong>rs. Bjarup also criticized Ross’s doctrine on legal sources. See<br />
Ross’s reply, Alf Ross, Kort bemærkning om retskildelære, TfR 1974, 329–332.<br />
105 Zahle 1974, supra n. 85 at 335–336, 344, 362–36, 399–402. Zahle has since argued that Marxist and<br />
critical legal scholarship attacked not so much the traditional legal scholarship as Ross’s conception of it.<br />
(Henrik Zahle, 1968 og derefter: Kritisk retsteori på Københavns Universitet: Et tilbageblik med spejl, 67,<br />
in Kjell Å. Modéer & Martin Sunnqvist (eds.), 1968 och därefter: De kritiska rättsteoriernas betydelse för<br />
nordisk rättsvetenskap (Købehavns Universitet: Museum Tusculanums Forlag 2010), 61–85). In 1974,<br />
however, he seems <strong>to</strong> have related the problems of Ross’s theory <strong>to</strong> traditional legal scholarship, arguing<br />
that education has been based on Ross’s theory for two decades. (Zahle 1974, id. at 333–334.) It thus<br />
seems that, especially in Denmark, Ross was chosen as the representative of traditional legal scholarship<br />
despite whether he actually represented it or not, and the criticism concerned both the tradition and Ross’s<br />
conception of it.<br />
179
eality. The greater social dissatisfaction and knowledge of contemporary critical theories<br />
induced the critical scholars <strong>to</strong> contemplate the fundamental premises of legal<br />
scholarship.<br />
In the <strong>fi</strong>rst half of the 1970s, many legal scholars were commenting on the tradition<br />
in order <strong>to</strong> change it. The concept of legal rules became an interesting subject of<br />
analysis since the de<strong>fi</strong>nition of a rule was of importance <strong>to</strong> legal sociology. 106 In 1974,<br />
the Norwegian Nils Kristian Sundby 107 tackled the problem of legal rules in his study<br />
Om normer (On Norms). His purpose was <strong>to</strong> construct a new de<strong>fi</strong>nition of legal rules so<br />
that cross-disciplinary research on them as well as an analysis of the values within the<br />
rules would be possible. He encouraged a structural examination of the rules because,<br />
he argued, the values within the rules were more signi<strong>fi</strong>cant than personal values regarding<br />
them. 108 Sundby’s purpose was <strong>to</strong> rede<strong>fi</strong>ne the concept of norm <strong>to</strong> correspond with<br />
the contemporary society and law. He had earlier endorsed thorough analyses of the<br />
legal system and the combination of legal philosophy and sociology in order <strong>to</strong> study<br />
the critical potential of legal scholarship and the political connections of law. 109 Thus,<br />
his study related <strong>to</strong> the larger project of rede<strong>fi</strong>ning the system in order <strong>to</strong> construct theoretical<br />
<strong>to</strong>ols for criticism.<br />
The most signi<strong>fi</strong>cant aspect of Sundby’s theory will be dealt with later, but here it<br />
is important <strong>to</strong> note a few methodological details in his book. His theory was not radical,<br />
his obvious intention being <strong>to</strong> contribute <strong>to</strong> the new realistic legal thought and practice<br />
which would promote social equality and make more flexible and open argumentation<br />
and interpretation possible. At the beginning of the book, Sundby wrote that he was<br />
politically socialist and sympathized with the recent critical legal scholarship, but he<br />
noted that radical criticism and Marxism were often theoretically untenable. 110 Here<br />
Sundby was representing the critical premise of openly stating the political biases of the<br />
scholar, yet he nonetheless distanced himself from the radical and Marxist tradition.<br />
Another scholar who developed alternative theories from within the system but<br />
from a far more traditional and conservative point of view was the Danish Preben Stuer<br />
Lauridsen. He elaborated a theory in which political argumentation would be included<br />
in legal scholarship so that there would be no need either <strong>to</strong> maintain strict divisions<br />
between legal and political argumentation or <strong>to</strong> make law and legal scholarship in<strong>to</strong><br />
politics. He de<strong>fi</strong>ned scienti<strong>fi</strong>c standards for political arguments which then would be<br />
tested in a collegial forum of jurists. 111 His theory was a counter-reaction <strong>to</strong> the critical<br />
106 On the importance of the de<strong>fi</strong>nition of the legal rule in legal sociology, see, e.g., Dalberg-Larsen 1973,<br />
supra n. 101 at 21.<br />
107 Nils Kristian Sundby was born in 1942 and acquired his doc<strong>to</strong>rate in jurisprudence in 1974 with his<br />
treatise on legal rules. He became a signi<strong>fi</strong>cant participant in critical legal scholarship, although he was<br />
not a Marxist scholar. He died in 1978.<br />
108 Nils Kristian Sundby, Om normer (Oslo: Universitetsforlaget 1974), 1–3.<br />
109 Nils Kristian Sundby, Benthams betydning for vår tids rettstenkning, TfR 1973, 714–715.<br />
110 Sundby 1974, supra n. 108 at 9–15. See also id. at 135–136.<br />
111 Lauridsen 1974, supra n. 85. See esp. at 52–56, 68–77, 92–103, 363–368, 470–498. Lauridsen criticized<br />
Ross for the fact that his complete exclusion of political arguments led <strong>to</strong> behavioralism. (Id. at<br />
142–182, 234–235, 248–249, 309–311.) Lauridsen was originally a follower of Ross but distanced him-<br />
180
claims of integrating legal scholarship in<strong>to</strong> social science, but he nevertheless sought <strong>to</strong><br />
<strong>fi</strong>t political arguments in<strong>to</strong> legal argumentation. The idea was that social science could<br />
not provide any more realistic data than traditional legal scholarship could. His purpose<br />
was <strong>to</strong> make political arguments “scienti<strong>fi</strong>c”, meaning that they could be included in<br />
legal scholarship without compromising the nature of the scholarship. According <strong>to</strong> the<br />
critics, however, his theory stabilized the argumentation. 112<br />
Obvious in the revisions of legal scholarship was the attempt <strong>to</strong> come <strong>to</strong> terms<br />
with the relationship between politics and scholarship. In general, the trend of the early<br />
1970s was <strong>to</strong> analyze the problematic relationship between academic research and politics.<br />
113 Thus, legal scholars of the 1970s were concerned with the problem of the relationship<br />
between law and politics and provided various theories <strong>to</strong> overcome it. This<br />
was also the purpose of both Sundby’s and Lauridsen’s treatises. 114 There were various<br />
efforts <strong>to</strong> distance theories from the realist tradition and bring values and politics in<strong>to</strong><br />
the ambit of legal scholarship in one way or another. Some scholars were more favorably<br />
disposed <strong>to</strong>ward social science and the critical potential of scholarship, whereas<br />
others tried <strong>to</strong> maintain the au<strong>to</strong>nomy of legal scholarship while still bringing it closer<br />
<strong>to</strong> politics and social realities.<br />
Even conservative scholars noted the problems legal scholarship faced in the<br />
changed atmosphere. Changes in society and scholarship had caused various new problems<br />
regarding both theory and practice that legal scholars had <strong>to</strong> deal with. Stig<br />
Strömholm, a Swedish legal scholar with relatively conservative views, also noted the<br />
need for political research within legal scholarship but did not want <strong>to</strong> turn jurisprudence<br />
in<strong>to</strong> political activity, 115 and, furthermore, he criticized the recent arguments for<br />
more flexible judicial decision-making for being <strong>to</strong>o ambiguous. 116 Thus, in 1975, asking<br />
whether jurisprudence had a future, he acknowledged that legal scholarship was<br />
about <strong>to</strong> change but argued that traditional scholarship had <strong>to</strong> be preserved as far as possible<br />
because it was bene<strong>fi</strong>cial for the legal profession. 117 The changed circumstances<br />
forced many legal scholars <strong>to</strong> reconsider the boundaries between law and politics and<br />
between jurisprudence and social science, but the traditional element of the profession<br />
did not want <strong>to</strong> change its basis. By the mid-1970s, the tradition of Scandinavian legal<br />
scholarship had been opened up <strong>to</strong> various alternatives.<br />
In a quite similar way <strong>to</strong> the United States, alternative legal scholarship developed<br />
from sociological and cross-disciplinary jurisprudence in<strong>to</strong> alternative theories of law.<br />
self in the 1970s. Because Lauridsen remained loyal <strong>to</strong> tradition while criticizing it, Ross called him “a<br />
tradition-loyal image crusher” (en traditionstro billeds<strong>to</strong>rmer) (Dalberg-Larsen 2006, supra n. 83 at 90–<br />
92).<br />
112 Helge J. Thue, Litteratur [Studier i retspolitisk argumentation], TfR 1978, 469–470.<br />
113 See, e.g., Sverker Gustavsson, Debatten om forskningen och samhället: En studie i några teoretiska<br />
inlägg under 1900-talet (S<strong>to</strong>ckholm: Almquist & Wiksell 1971).<br />
114 For a review of the books, see Stig Strömholm, Litteratur [Om normer & Studier i retspolitisk argumentation],<br />
SvJT 1975, 282–291.<br />
115 Stig Strömholm, Rättsvetenskap och rättspolitik, SvJT 1973, 657–675.<br />
116 Stig Strömholm, Vad är sakens natur? JFT 1974, 221–233.<br />
117 Stig Strömholm, Har juridiken en framtid? SvJT 1975, 604.<br />
181
Scandinavian legal scholars also became frustrated with the pursuit of rationality and<br />
the neutrality of the traditional legal thought, as well as its insistence on the au<strong>to</strong>nomy<br />
of legal scholarship. Furthermore, both in the United States and Scandinavia, there were<br />
scholars who sought <strong>to</strong> update the tradition without however abandoning it, and there<br />
were scholars who were readier for more fundamental changes. The dynamic between<br />
the alternative and the critical perspective was crucial for the development of critical<br />
legal scholarship.<br />
According <strong>to</strong> Dalberg-Larsen, Danish legal philosophy from the 1960s onwards<br />
was characterized by criticism of logical positivism, increasing interest in legal sociology,<br />
and the rise of Marxist legal scholarship. Moreover, after 1969 there was not only a<br />
conflict between proponents and opponents of Ross but also between the various types<br />
of opponents of Ross. 118 The same applies <strong>to</strong> Scandinavia at large, because the same<br />
trends were dominant, albeit with differences in methods and emphasis. The time from<br />
the sixties onwards was indeed a time of methodological pluralism in legal scholarship<br />
and many of the new methodologies criticized the traditional positivism in one way or<br />
another. Alternative legal scholarship was not a uniform or coherent movement, but the<br />
traditional legal scholarship, or its image, was attacked with varying intensity from different<br />
angles. The new theories <strong>to</strong>ok a stand on the same problems from various perspectives<br />
and provided various answers depending on the interests and perspectives of<br />
the scholars. A common theme, however, was <strong>to</strong> provide a theory that would account<br />
for the relationship between law and society. As the alternative scholarship turned <strong>to</strong>wards<br />
critical scholarship, criticism of the tradition became the unifying theme.<br />
The criticism of traditional legal thinking became most obvious in Marxist legal<br />
scholarship. There were clear connections between realistic, sociological legal scholarship<br />
and flexible legal argumentation on the one hand and Marxist legal scholarship on<br />
the other. Marxist legal scholarship applied many of the ideas and methods of sociological<br />
jurisprudence but set them in the context of Marxist theory and was thus much more<br />
critical of the prevailing legal system. It shared the same basis as the various forms of<br />
alternative legal scholarship but it <strong>to</strong>ok criticism <strong>to</strong> a more radical level. The rise of<br />
Marxist legal scholarship thus represents the culmination of the critical legal scholarship<br />
in Scandinavia.<br />
3 The origins of Scandinavian Marxist legal scholarship, 1972–1976<br />
The 1960s was a crucial period for the development of Marxist legal scholarship in<br />
Scandinavia. As we saw, the interest in the sociology of law increased the studies on the<br />
relationship between law and society, and legal scholarship in general began <strong>to</strong> pay<br />
more attention <strong>to</strong> the relationship between law and politics. Alternative legal scholar-<br />
118 Dalberg-Larsen 2006, supra n. 83 at 87–89.<br />
182
ship rebutted both the traditional distinction between legal scholarship and social science<br />
and the realist distinction between law and metaphysics. The new realism that developed<br />
in the late 1960s sought <strong>to</strong> place values and ideologies under open scrutiny and<br />
also <strong>to</strong> bring law and politics in<strong>to</strong> common consideration.<br />
The changes in social, academic, and scholarly life were also important for the development<br />
of critical legal thought. The sixties in general was a time of the rise of the<br />
new left and social criticism, which meant that traditional social values were attacked<br />
and questioned and social institutions were placed under critical examination. In the late<br />
1960s, cultural radicals criticized social and cultural authorities and students rebelled<br />
against the university hierarchies. In addition, the critical thought according <strong>to</strong> which<br />
both society and scholarship were ideologically structured began <strong>to</strong> rise.<br />
As the interest in Marxism spread, <strong>to</strong>gether with the interest in cross-disciplinary<br />
research, critical scholars put the problem of the class society and class oppression on<br />
the table from various perspectives. 119 The problem of values and objectivity was becoming<br />
more and more pressing, for instance, in social and economic scholarship, 120<br />
and Marxism and critical notions began <strong>to</strong> have their influence on sociology. 121 Critical<br />
theory on the prerequisites of scholarship began <strong>to</strong> interest scholars who opined that<br />
traditional scholarship was bound up with the social ideologies. During the 1960s, a<br />
critical bloc arose within the universities, attacking the authority of the traditional<br />
scholarship. The critical scholars often adopted Marxism as their theoretical basis,<br />
which then became a critical method.<br />
As critical scholarship grew, scholars became more interested in the critical theory<br />
of the Frankfurt School and its potential for scholarship. 122 The rise in critical scholarship<br />
initiated a conflict over the place of values in and freedom of academic scholarship.<br />
123 The juxtaposition only encouraged the critical scholars who continued <strong>to</strong> challenge<br />
the tradition, and critical theory was both analyzed 124 and introduced <strong>to</strong> the academic<br />
public. 125 Scholars became more interested in the recent currents of critical<br />
thought and theory and began <strong>to</strong> work on theories in various disciplines which could<br />
help <strong>to</strong> transcend the dominant paradigm. Critical theories sought <strong>to</strong> demonstrate that<br />
119 Andreas Murray (ed.), Det svenska klassamhället (Halmstad: Bokförlaget Prisma 1967); Carl-Gunnar<br />
Janson, (ed.), Det differentierade samhället: Studier i social strati<strong>fi</strong>ering (S<strong>to</strong>ckholm: Bokförlaget Prisma<br />
1968).<br />
120 Gunnar Myrdal, Values in Social Theory: A Selection of Essays on Methodology (London: Routledge<br />
& Kegan Paul 1958); Gunnar Myrdal, Objektivitetsproblemet i samhällsforskningen (S<strong>to</strong>ckholm: Rabén<br />
& Sjögren 1969).<br />
121 Joachim Israel, Alienation: Från Marx till modern sociologi: en macrosociologisk studie (S<strong>to</strong>ckholm:<br />
Rabén & Sjögren 1968); Joachim Israel, Välfärdssamhället – och därefter? (S<strong>to</strong>ckholm: Bokförlaget Aldus/Bonniers<br />
1969).<br />
122 Gerard Radnitzky, Contemporary Schools of Metascience (Göteborg: Akademiförlaget 1968).<br />
123 Aant Elzinga & Gerard Radnitzky, Anglosaxisk kontra kontinental vetenskapssyn, HfKS 1–2/1968,<br />
37–47, 68; Aant Elzinga & Gerard Radnitzky, Debatt om in<strong>to</strong>lerans och forskningens frihet, HfKS 1–<br />
2/1968, 57–59; Anders Wedberg, Om Radnitzkys avhandling, HfKS 3/1969, 42–43.<br />
124 Björn Eriksson, Kritisk samhällsvetenskap ─ uppgifter och möjligheter, HfKS 5/1969, 8–13, 50.<br />
125 Ragnvald Kalleberg (ed.), Kritisk teori: En an<strong>to</strong>logi over Frankfurter-skolen i <strong>fi</strong>loso<strong>fi</strong> og sosiologi<br />
(Oslo: Gyldendal norsk forlag 1970).<br />
183
since traditional scholarship was ideology-bound, its observations were more or less<br />
flawed. Thus the critics sought <strong>to</strong> establish a basis of scholarship that could comprehend<br />
the nature of reality better.<br />
Academic life changed <strong>to</strong>o, and critical study circles and journals for critical<br />
scholarship were established. One of the outcomes was Häften för kritiska studier<br />
(Journal for Critical Studies) which was founded in Sweden in 1968 as a forum for critical<br />
scholarship. It was argued that there was a need for such a journal because the tradition<br />
was dominated by conservative bourgeois ideology. 126 The left in general became<br />
more radical in the late 1960s, 127 which was also a time of the elaboration of the critical<br />
theory in Scandinavian scholarship. 128 Analytical philosophy was considered as dominant<br />
in the academy, but the critical theories in the 1960s began <strong>to</strong> drive a wedge in<strong>to</strong><br />
the tradition. Critical scholars struggled for academic emancipation even <strong>to</strong> the extent<br />
that it was argued that one could make a career of being “critical”. 129<br />
By the early 1970s, there was general academic strife between positive and critical<br />
scholarship, between traditional and Marxist scholarship. 130 There was a group of young<br />
scholars who had grown up in the radical atmosphere of the 1960s and adopted critical<br />
thought from the emerging schools of critical and Marxist scholarship. These young<br />
scholars were interested in an analysis of the relationship between ideology and scholarship.<br />
Thus, as the alternative legal scholarship had gained a strong foothold in the legal<br />
academia, and when critical and Marxist scholarship had risen <strong>to</strong> a prominent place,<br />
legal scholarship was also about <strong>to</strong> take a new turn. As we saw, there was a Marxist turn<br />
in sociology of law during the change of the decade. The same turn, which began <strong>to</strong> be<br />
seen during the 1970s, occurred within jurisprudence. Critical legal scholarship was an<br />
extreme manifestation of the scholarly change in the 1960s and 1970s, representing a<br />
new cultural image of the legal academia.<br />
The interest in Marxist legal theory had expanded enormously since the beginning<br />
of the 1960s. A new wave of Marxist legal theory began in Germany, France and Italy,<br />
and spread from there <strong>to</strong> the Nordic Countries. 131 Marxism entered legal scholarship<br />
<strong>fi</strong>rst through radical social thought, sociological jurisprudence, and critical theory, and<br />
later it <strong>to</strong>ok on a unique <strong>to</strong>ne as scholars became more familiar with Marxist literature.<br />
As noted in the previous chapter, Marxist scholarship in general arose in the United<br />
States in the 1960s and achieved an established position in the 1970s, but it did not<br />
126 Ledare, HfKS 1–2/1968, 1–2.<br />
127 Martin Wiklund, I det modernas landskap: His<strong>to</strong>risk orientering och kritiska berättelser om det moderna<br />
Sverige mellan 1960 och 1990 (S<strong>to</strong>ckholm: Brutus Östlings bokförlag Symposion 2006), 184.<br />
128 Aronsson 2007, supra n. 28 at 17–46.<br />
129 Göran Therborn, Från revolutionär teori till akademisk metafysik: Till den kritiska teorins his<strong>to</strong>ria I,<br />
HfKS 1/1969, 14.<br />
130 Ingvar Johansson, Ragnvald Kalleberg, Sven-Eric Liedman, Positivism, marxism, kritisk teori: Riktningar<br />
inom modern vetenskaps<strong>fi</strong>loso<strong>fi</strong> (S<strong>to</strong>ckholm: P.A. Nordstedt & Söners förlag 1972). The conflict<br />
was not, of course, simply between traditional and Marxist scholarship, there being various forms of<br />
scholarship. Neither the Marxist nor the non-Marxist side was uniform.<br />
131 Göran Elwin & Dag Vic<strong>to</strong>r (eds.), Rätt och marxism: Introduktion och material (S<strong>to</strong>ckholm: Kontrakurs<br />
1978), 163.<br />
184
flourish in legal thought as such. American critical legal thought was close <strong>to</strong> Marxism,<br />
but it built on various theories and philosophies. In the Nordic Countries, the situation<br />
was somewhat different. In Finland especially, Marxist-inspired critical legal literature<br />
began <strong>to</strong> emerge in the late 1960s and acquired a wide basis by the early 1970s, as will<br />
be seen in the following chapter. In Scandinavia, Marxist legal scholarship began in the<br />
early 1970s as a response <strong>to</strong> the general scholarly trends.<br />
In general, critical legal scholarship was a radicalization of the alternative legal<br />
scholarship. Legal sociology had had a Marxist <strong>to</strong>ne at least since the 1960s. Vilhelm<br />
Aubert had noted in the early 1960s that the idea of formal equality often masked the<br />
actual class inequalities in society, 132 and after the Marxist turn he argued that despite<br />
the apparent neutrality, legislation sometimes functioned as a <strong>to</strong>ol of class domination.<br />
133 Aubert, however, had always distanced himself from orthodox Marxism. Thus,<br />
Marxist sociologists criticized him for his super<strong>fi</strong>cial analysis of the legitimizing function<br />
of law in the class conflict and for neglecting an analysis of the relationship between<br />
economic, political, ideological, and legal structures. 134 The Marxist turn also<br />
meant a need for a more radical and critical theory <strong>to</strong> analyze the social power structures.<br />
With respect <strong>to</strong> law, the turn meant a move from empirical studies on the gap between<br />
law in books and law in action <strong>to</strong>wards a structural and ideological analysis, and<br />
from reconsiderations of particular <strong>to</strong>pics <strong>to</strong> a fundamental analysis.<br />
In 1973, the young Swedish legal scholars Göran Elwin and Dag Vic<strong>to</strong>r sketched a<br />
systematic theory for Marxist legal scholarship. Their theory was mostly based on the<br />
literature on Marx and Marx-related matters, but they also cited the recent alternative<br />
legal literature and critical scholarship, as well as Finnish Marxist legal scholarship. 135<br />
According <strong>to</strong> Elwin and Vic<strong>to</strong>r, since law was mostly an ideological superstructure, it<br />
was important <strong>to</strong> examine both its origins and functions. Law emanated from society<br />
and was a <strong>to</strong>ol in the social power structure, always serving particular material social<br />
interests. The study of these interests was the material side of the law. However, law<br />
had also an au<strong>to</strong>nomous inner structure which had an impact on society, particularly in<br />
reproducing ideology. The dialectical aspect of legal scholarship should therefore investigate<br />
the ideological functions of law. 136 Finnish scholars criticized the article for its<br />
generality and for the lack of a his<strong>to</strong>rical aspect, 137 <strong>to</strong> which the Swedish replied that<br />
their theory was mostly a sketch for the future. 138 The debate shows that Marxism was<br />
in its early phase but its basis was being elaborated. Its two most important aspects were<br />
the examination of the material origins and purposes of law and its ideological functions<br />
132 Aubert 1964, supra n. 42 at 70–71.<br />
133 Aubert 1972, supra n. 55 at 82–91.<br />
134 Lena Lindgren & Åke Norborg, Aubert och rättssociologin, HfKS 4/1973, 50–51.<br />
135 Finnish, albeit Swedish-speaking legal scholar Lars D. Eriksson had developed Marxist legal theory a<br />
year earlier in the same journal, and Elwin and Vic<strong>to</strong>r commented upon his theory. Finland will be discussed<br />
in the next chapter.<br />
136 Göran Elwin och Dag Vic<strong>to</strong>r, Rättsteori och dialektisk materialism, HfKS 4/1973, 31–35.<br />
137 Lars D. Eriksson och Antero Ignatius, Marxistisk rättsteori och eklektisk, HfKS 1/1974, 48–50.<br />
138 Göran Elwin & Dag Vic<strong>to</strong>r, Replik om rättsteori, HfKS 6/1974, 57–58.<br />
185
in society. Scholars of course disagreed on details but the common theoretical basis was<br />
laid.<br />
Marxist legal scholarship criticized the very basis of law and traditional legal<br />
scholarship. Law schools were the places where, according <strong>to</strong> critical scholars, the indoctrination<br />
in<strong>to</strong> the tradition began, and thus the critique began from there. Bolding<br />
had already criticized legal education in the late 1960s for the fact that it reproduced the<br />
tradition, and had called for a practical and sociological education. 139 The Marxists,<br />
however, stressed the ideological aspects of indoctrination. Young Danish law student<br />
and future Marxist legal scholar, Peter Blume, argued that contemporary legal education<br />
was uncritical <strong>to</strong>ward the ideological aspects of law, and he called for alternative views<br />
on the legal system in education so that the students would realize the possibility of alternatives.<br />
140 The concern of the critical scholars was that the dominant paradigm 141<br />
excluded any real alternatives and preserved the status quo, and that the possibility of<br />
alternative views should therefore be included in the education. As was the case in the<br />
American critical legal scholarship, as noted in the previous chapter, the talk of paradigms<br />
and legal consciousness entered the Scandinavian legal discourse through this<br />
critique. In their ideas on indoctrination, critical scholars began <strong>to</strong> pay attention <strong>to</strong> the<br />
fundamental consciousness behind law.<br />
The fundamental criticism and the ideas on ideology caused conflicts between critical<br />
and alternative legal scholars. Stig Jørgensen criticized Marxist scholarship for its<br />
simplistic behaviorism and misunderstanding of the role of law in society. According <strong>to</strong><br />
him, one did not have <strong>to</strong> be Marxist <strong>to</strong> analyze the relationship between law and society.<br />
142 In addition, he argued, Marxism often turned legal scholarship in<strong>to</strong> ideology. 143<br />
Blume replied that the traditional legal scholarship simply denied the ideological content<br />
of legal practice and scholarship, whereas Marxism tried <strong>to</strong> examine it. Ideology<br />
was everywhere and it was pointless <strong>to</strong> neglect it. 144 The split between the critical and<br />
the more traditional view concerned the nature of law and legal scholarship. According<br />
<strong>to</strong> the former, ideology was inherent in law, whereas it played only a part according <strong>to</strong><br />
the latter.<br />
The critical legal scholars worked on these fundamental problems in the early<br />
1970s when the Marxist legal theory was being developed. This was also the period in<br />
139 Bolding 1968, supra n. 64 at 116–118. There was a reform of the legal education in Sweden in the<br />
1960s.<br />
140 Blume 1972, supra n. 97 at 167–169.<br />
141 Marxist legal scholars acknowledged that modern jurisprudence was depicted by methodological pluralism<br />
and there was no one dominant school. However, they argued that this did not mean that there was<br />
no dominant paradigm common <strong>to</strong> the various schools within the tradition, and that this paradigm denied<br />
the possibility of Marxist legal thought. (Elwin & Vic<strong>to</strong>r 1973, supra n. 136 at 24.) This is basically what<br />
Duncan Kennedy meant by “legal consciousness” (see the previous chapter). Critical legal scholars thus<br />
did not argue that there was only one form of “traditional legal scholarship”. They meant that the various<br />
schools and movements within the tradition shared a common basis.<br />
142 Stig Jørgensen, Ret og samfundsdebat: Kroniksamling (København Juristforbundets forlag 1972), 50–<br />
53.<br />
143 Stig Jørgensen, Ideologi og Retsvidenskab, Juristen 1973, 186–191.<br />
144 Peter Blume, Et par rets<strong>fi</strong>loso<strong>fi</strong>ske bemærkninger, Juristen 1973, 318–319, 321.<br />
186
which Denmark was becoming the center of Scandinavian Marxism. Young critical legal<br />
scholars at the University of Aarhus, the Critical Front, worked on a publication in<br />
which the basic themes and theories of Marxist legal theory were laid down. The scholars<br />
thought that education was the beginning of the indoctrination in<strong>to</strong> the tradition that<br />
protected the prevailing social structures. Even the alternative forms of traditional<br />
scholarship missed the ideological functions of law, and thus were unable <strong>to</strong> criticize<br />
the tradition. Therefore, critical scholarship had <strong>to</strong> work <strong>to</strong>ward a radical alteration in<br />
the education, and reveal the origins of the tradition in order <strong>to</strong> analyze the relation between<br />
its speci<strong>fi</strong>c concepts, methods, and functions and the contemporary society. 145 A<br />
Marxist establishment was formed within the universities at the late 1960s, and in the<br />
early 1970s it was ready <strong>to</strong> attack the tradition and criticize the dominant legal thinking.<br />
For the critical scholars, it was the basis of the traditional legal thought that was <strong>to</strong><br />
be analyzed and criticized, and this fundamental division marked the split between the<br />
radical and the traditional blocs. Marxist legal scholars argued that since every aspect of<br />
law was affected by values, one had <strong>to</strong> be either critical or traditionalist, and the critical<br />
function was <strong>to</strong> inquire the impact of ideology in law. 146 The critics of Marxist scholars<br />
argued that their arguments were tau<strong>to</strong>logical and lacked a viable basis, 147 but the Marxists<br />
often shrugged this argument off by de<strong>fi</strong>ning it as political. 148 The problem was in<br />
the different points of view the various scholars had. Indeed, where the Marxists saw<br />
ideology the traditionalists saw law, where the Marxists saw politics the traditionalists<br />
saw scholarship, and where the Marxists saw indoctrination the traditionalists saw education.<br />
These differences in perspective meant that the dialogue between the opposing<br />
schools was often dif<strong>fi</strong>cult if not impossible. Marxism was often self-assured in its criticism<br />
of the tradition, but that followed its theoretical premises; it was critical by de<strong>fi</strong>nition.<br />
In any event, the Marxist endeavor continued, and the criticism speci<strong>fi</strong>ed the controversial<br />
points. Blume argued that scholarship had <strong>to</strong> be rid of all the “wordfetishism”<br />
and concentrate on the his<strong>to</strong>rical and social origins of legal rules, institutions,<br />
and arguments. In order <strong>to</strong> make a difference, nothing was <strong>to</strong> be taken at face value. 149<br />
Ole Krarup argued that since legal concepts were often ambiguous and protected hidden<br />
values, they had <strong>to</strong> be analyzed in their his<strong>to</strong>rical and social context as related <strong>to</strong> class<br />
145 Juristen og samfundet (Udgivet af Fagkritisk Front ved Aarhus Universitet på Forlaget MODTRYK<br />
1973), 8–24, 47–48, 78–80, 84–104. The book was an outcome of a course on critical jurisprudence held<br />
at the university in 1973. The authors included Lillian Bonde, Lars Helms, Hans Kjellund, Ebbe Madsen,<br />
Flemming Meyer, Claus Valeur Nissen, Anna Marie Poulsen, Nicolai von Schilling, Lis Sejr, and Torben<br />
Wanscher. Ole Krarup wrote an afterword. Of these, only Wanscher and Krarup seem <strong>to</strong> have been active<br />
participants in the critical legal scholarship in the 1970s, at least on the basis of the published literature. In<br />
any event, Marxism as an academic enterprise was a much broader phenomenon than the published literature<br />
reveals.<br />
146 Flemming Deleuran, Om kritiske jurister (og studenter) og kritisk retsvidenskab, Juristen 1973, 414,<br />
419, 421–422.<br />
147 Bent Feldung, Kritik af et såkaldt kritisk studium, Juristen 1974, 182–183.<br />
148 Flemming Deleuran, Svar på en politisk kritik, Juristen 1974, 185–186.<br />
149 Blume 1974, supra n. 85 at 234–237.<br />
187
conflict. 150 Alf Ross criticized Krarup for doing simply abstract sociology, 151 and<br />
Krarup saw Ross’s criticism as an effort <strong>to</strong> maintain the division between legal scholarship<br />
and sociology. 152 Ross was naturally upset at the materialist conception since he<br />
had done much <strong>to</strong> purify legal concepts of metaphysics and now the critical scholars<br />
were maneuvering the metaphysics back in<strong>to</strong> them. The critical scholars, however, argued<br />
that since there were no legal concepts without material interests, legal analysis<br />
had <strong>to</strong> consider social interests and values.<br />
The major difference between the traditional, realist-based legal scholarship and<br />
critical legal scholarship was the mode of analysis of legal rules. Anders Fogelklou, for<br />
example, criticized the semantic-logical analysis of law, endorsing a dialecticalmaterialist<br />
analysis instead. 153 Critical scholars opined that logical analysis of legal<br />
rules without an analysis of their social aspects was not adequate in sorting out the true<br />
meaning of law. Here they also faced the problem of Soviet legal theory and legal practice.<br />
Fogleklou represented a middle way by arguing that Soviet legal theory provided<br />
useful lessons for Scandinavian legal scholarship, but was not suitable because of its<br />
apologetic nature. 154 Finnish scholars were more optimistic about the potential of Soviet<br />
legal theory, 155 while scholars who were skeptical about socialist law noted that it was<br />
often seriously reactionary. 156 In criticizing the institutions of western society and deriving<br />
inspiration from a theory that was strongly related <strong>to</strong> socialist societies, the critical<br />
scholars also had <strong>to</strong> take a stand on the socialist practice while focusing on the theoretical<br />
aspects of Marxism. Critical scholars were often theoretical and did not specify any<br />
practical implications of their work. Scandinavian Marxist legal scholars, however,<br />
were not uncritically inclined <strong>to</strong>ward socialism. Their main objective was <strong>to</strong> explore the<br />
basis of western legal institutions theoretically in order <strong>to</strong> construct opportunities for<br />
criticism and change.<br />
At the heart of the criticism was the notion that in its persistent efforts <strong>to</strong> maintain<br />
a division between law and values, traditional jurisprudence missed the point that law<br />
always promoted the values that were built in<strong>to</strong> it. Whereas the more traditional scholars<br />
criticized Marxist scholars for tackling problems relating rather <strong>to</strong> sociology or his<strong>to</strong>ry<br />
than law, 157 the critical scholars argued that it was precisely these problems that<br />
were at the roots of the legal problems. Erling Albrechtsen argued that the traditional<br />
“pure jurisprudence” missed the point that material wealth meant more freedom and<br />
power in legal terms. Thus, he declared, since lawyers were often close <strong>to</strong> the rich, the<br />
150 Ole Krarup, Om den offentlige rets grundbegreber, Juristen 1974, 349, 354, 359–364.<br />
151 Alf Ross, Brev til Ole Krarup, Juristen 1975, 1–2.<br />
152 Ole Krarup, Om materialistisk retsteori, Juristen 1975, 3–5.<br />
153 Fogelklou 1973, supra n. 85 at 88–89.<br />
154 Id. at 102.<br />
155 Raimo Blom, Litteratur, TfR 1975, 282.<br />
156 Andreas Ådahl, Civilrättens regleringsområde: Gränsdragningsproblematiken i olika rättssystem ─ ett<br />
öst-västperspektiv, TfR 1975, 272.<br />
157 Lauridsen 1974, supra n. 85 at 45–48.<br />
188
legal profession contributed <strong>to</strong> the unequal distribution of rights and legal power. 158<br />
Critical thought was moving <strong>to</strong>ward the notion that law protected some values while<br />
neglecting other values, which could have just as well been protected. Hence, the interest<br />
was focused not simply on legal matters but also on the context of the origins of law.<br />
In the endeavor <strong>to</strong> reveal the true nature of law, the theoretical basis and practical<br />
usability of the Marxist theory had <strong>to</strong> be speci<strong>fi</strong>ed. Torben Wanscher analyzed the various<br />
forms of Marxism and neo-Marxism <strong>to</strong> explicate them in detail. 159 Lisbet Roeps<strong>to</strong>rff,<br />
on the other hand, examined the relations between various levels of society and<br />
the capitalist mode of production. According <strong>to</strong> her, the economy created the preconditions<br />
for all the other levels, which were only relatively au<strong>to</strong>nomous and which had a<br />
feedback effect on the economy. Nevertheless, since economic values dominated modern<br />
society, justice and humanity were reflections of the economy. 160 The Marxist argument<br />
that the contemporary conception of justice and the system of values emanated<br />
from the economic basis of society and thus protected the interests of the rich reflected<br />
the radical leftist thought of the 1960s. The left opposed capitalism and struggled for a<br />
society that was not controlled by business interests. The Marxist legal scholars brought<br />
these ideas <strong>to</strong> legal theory and attacked the legal establishment. The notion that values<br />
were not simply metaphysics but had a material basis in society followed from the epistemological<br />
turn and Marxist thinking. This was also one of the most essential aspects<br />
of critical legal scholarship. The critical scholars constructed a link between the social<br />
order and the legal profession, and worked <strong>to</strong> unravel it.<br />
Speci<strong>fi</strong>c aspects of the relationship between law and class struggle were brought<br />
out especially in studies concerning labor law. Marxist his<strong>to</strong>ry had been done in Scandinavia<br />
before the 1970s, 161 but the critical legal scholars brought new elements <strong>to</strong> it<br />
and enhanced the research. In 1971, Gösta Hultén argued that labor law had long been<br />
used <strong>to</strong> curb worker activity and protect the interests of the economy. Furthermore, he<br />
claimed, despite recent developments, labor law was still a <strong>to</strong>ol <strong>to</strong> protect the employers.<br />
162 The study was Marxist scholarship par excellence without however explicitly<br />
emphasizing this. The central elements were, nonetheless, present in it; the contemporary<br />
situation was explained in the light of his<strong>to</strong>rical dialectical materialism with an<br />
emphasis on the class struggle. The central message of the book was that law was determined<br />
in the last resort by the interests of big money, and details of super<strong>fi</strong>cial regulation<br />
did not alter its basis.<br />
Per Eklund also conducted a thorough analysis of labor law from the Marxist<br />
standpoint. On methodology, he noted that it was futile <strong>to</strong> argue that law promoted ma-<br />
158 Erling H. Albrechtsen, Kritikk av den rene jus I–II, Tidsskrift for samfunnsforskning 1974, 5–7, 14–<br />
15, 19–20, 87–90, 95–97, 101–102, 107.<br />
159 Torben Wanscher, Materialistisk retsteori: Et forsøg på en introduktion, Politica 1/1974, 1–32.<br />
160 Lisbet Roeps<strong>to</strong>rff, Det juridiske systems dominans i den kapitalistiske ideologi, Kurasje 10/1074, 79–<br />
84, 89–101.<br />
161 See Per Nyström, His<strong>to</strong>rieskrivningens dilemma och andra studier (S<strong>to</strong>ckholm: Kontrakurs 1974).<br />
162 Gösta Hultén, Arbetsrätt och klassherravälde: Kring strejklagarnas his<strong>to</strong>ria (S<strong>to</strong>ckholm: Rabén & Sjögren<br />
1971), 219–226, 238.<br />
189
terialist interests, because understanding the particular interests behind the law was<br />
more useful. Laws did not necessarily promote particular interests directly, but sometimes<br />
were compromises between conflicting interests. Nevertheless, he concluded, labor<br />
law had mostly been used <strong>to</strong> support conservative values and the interests of the<br />
employers, and the legal system often legitimized an otherwise unequal situation. 163<br />
Eklund was a typical neo-Marxist who stressed the relative au<strong>to</strong>nomy of law and did not<br />
want <strong>to</strong> succumb <strong>to</strong> economic determinism. He represented the structuralist branch of<br />
Marxism, explaining law in terms of his<strong>to</strong>rical-dialectical materialism while acknowledging<br />
the structures of society. The structural approach was typical for Scandinavian<br />
Marxism in the 1970s, because it helped <strong>to</strong> avoid being labeled either as orthodox or<br />
determinist.<br />
Eklund’s study also exposed the dif<strong>fi</strong>culties in Marxist his<strong>to</strong>ry. The Swedish legal<br />
his<strong>to</strong>rian Stig Jägerskiöld argued that Eklund had drawn abstract generalizations without<br />
adequate his<strong>to</strong>rical evidence, and had exaggerated the role of the class conflict in the<br />
his<strong>to</strong>ry of the law. 164 Eklund replied that Jägerskiöld’s criticism was largely political<br />
and defended his methods by arguing that an analysis of the economic position of the<br />
law-makers was useful because it helped <strong>to</strong> overcome the otherwise assumed social<br />
consensus. 165 Wanscher, another Marxist legal scholar, also criticized Jägerskiöld for<br />
his bourgeois ideology in the interpretation of his<strong>to</strong>rical data, but he also criticized<br />
Eklund for his narrow perspective. According <strong>to</strong> Wanscher, Eklund had reduced class<br />
conflict <strong>to</strong> parliamentary struggles over legislation and thus neglected several other important<br />
aspects, such as the judiciary. 166 As there was disagreement on the contemporary<br />
law, there was also disagreement about the his<strong>to</strong>ry of law. Marxist scholars interpreted<br />
his<strong>to</strong>rical material in the light of the class conflict, arriving at conclusions that did not<br />
convince more traditional legal his<strong>to</strong>rians. In addition, as Marxist scholarship increased,<br />
the scholars themselves had <strong>to</strong> de<strong>fi</strong>ne the meaning of Marxism more precisely, which<br />
was by no means a simple task. Nevertheless, Marxist legal scholarship was about <strong>to</strong><br />
mature.<br />
By the mid-1970s, there was a large group of legal scholars who distanced themselves<br />
from the tradition, criticized contemporary legal institutions, and sought <strong>to</strong> develop<br />
a radical alternative theory <strong>to</strong> the traditional jurisprudence. The time was now ripe<br />
for a symposium on Marxist legal scholarship in the pages of the Journal for Legal<br />
Scholarship (Tidsskrift for rettsvitenskap). The purpose of the symposium was <strong>to</strong> introduce<br />
Marxist legal scholarship and the problems with which it dealt <strong>to</strong> a wider audience.<br />
The potential of Marxist theory in jurisprudence had increased in the few years<br />
that had elapsed since the beginning of the decade, and it was applied in various contexts.<br />
The Finnish scholar Lars D. Eriksson criticized the concept of legitimacy which,<br />
163 Per Eklund, Rätten i klasskampen: En studie i rättens funktioner (S<strong>to</strong>ckholm: Tidens förlag 1974), 6–<br />
10, 28–31, 347–354, 365–366, 369–374.<br />
164 Stig Jägerskiöld, Anmälan [Rätten i klasskampen], SvJT 1975, 212–216.<br />
165 Per Eklund, Samhällsklasserna och rätten, SvJT 1975, 689, 701, 706, 710–711.<br />
166 Torben Wanscher, “Rätten i klasskampen” i klassekampen, Retfærd 1/1976, 177, 180–184.<br />
190
according <strong>to</strong> him, was reactionary. He argued that instead of an abstract and general<br />
concept, legitimacy should be considered in the context of particular society so that it<br />
could be analyzed and criticized accordingly. 167 Eriksson’s theory was an application of<br />
Marxist theory <strong>to</strong> a particular <strong>to</strong>pic, encouraging a more particular analysis of the concept<br />
of legitimacy. That was a concept the critical scholars thought was also uncritically<br />
accepted in the tradition, so that they wanted <strong>to</strong> reconsider its meaning in contemporary<br />
society.<br />
The reconsideration of traditional concepts was a major feature of critical legal<br />
scholarship, as was noted in the symposium. In the general analyses, critical theory was<br />
contrasted with traditional theory <strong>to</strong> point out the weaknesses of the latter. Krarup continued<br />
his criticism on the impersonal and neutral way traditional legal scholarship examined<br />
legal phenomena, 168 and Wanscher was concerned about the way traditional<br />
legal his<strong>to</strong>ry reproduced the dominant ideology, arguing that Marxist theory could bring<br />
a more authentic perspective <strong>to</strong> studies of legal his<strong>to</strong>ry. 169 The common argument of the<br />
critical scholars was that the traditional scholarship could not grasp the true nature of<br />
legal phenomena without setting them against their background and surroundings.<br />
Marxist scholarship made the materialist aspects of law in<strong>to</strong> the primary concern of research.<br />
Speci<strong>fi</strong>c analyses brought the general theory <strong>to</strong> a more concrete level, while still<br />
stressing the materialist aspect. The general argument, nonetheless, was that the seemingly<br />
neutral law hid some less noble intentions than the apparent ones and Marxist theory<br />
helped <strong>to</strong> purge the law of its ideological excrescences and <strong>to</strong> reveal its actual purposes.<br />
Thus, Henrik Bang argued that social law was mostly meant <strong>to</strong> secure peace and<br />
order and <strong>to</strong> shape people in a market-fashion, 170 Ulla Paabøl wrote that the formal<br />
equality of labor law in fact supported the interests of those who owned the means of<br />
production, 171 and Henrik Zahle linked the evolution of the law of evidence <strong>to</strong> the development<br />
of capitalism. 172 The purpose of the analysis was always <strong>to</strong> go beyond the<br />
level of legal rules and concepts and <strong>to</strong> link them <strong>to</strong> something more practical.<br />
For the Marxist scholars, materialism was the most essential element of legal<br />
scholarship. It also distinguished their theory from all the other forms of critical theory<br />
because it helped them <strong>to</strong> analyze the relation between the base and the superstructure<br />
on the one hand, and the authentic nature of the legal phenomena on the other. According<br />
<strong>to</strong> Wanscher, for example, this kind of critical inquiry was necessary <strong>to</strong> emancipate<br />
law from its contemporary chains. 173 The critical scholars argued that the contemporary<br />
law originated in the material interests of the ruling social class, namely, the economically<br />
powerful class. By relating law, as well as conceptions of right and justice, <strong>to</strong> eco-<br />
167 Lars D. Eriksson, För et dynamiskt legitimitetsbegrepp, TfR 1975, 145–157.<br />
168 Ole Krarup, Marxistisk retsteori contra borgerlig jura, TfR 1975, 158–168.<br />
169 Torben Wanscher, Teori og retshis<strong>to</strong>rie: Til kritikken af retshis<strong>to</strong>rien, TfR 1975, 169–192.<br />
170 Henrik Bang, Bidrag til en socialretlig relationsanalyse, TfR 1975, 193–227.<br />
171 Ulla Paabøl, Arbejdsretlig regulering ─ i his<strong>to</strong>risk materialistisk belysning, TfR 1975, 228–247.<br />
172 Henrik Zahle, Bevisretlige stadier ─ en skitse, TfR 1975, 248–254.<br />
173 Torben Wanscher, Tendenser i nyere marxistisk retsteori, Kurasje 12/1975, 129–153.<br />
191
nomic interests, they aimed <strong>to</strong> reconsider the old concepts and <strong>to</strong> contribute <strong>to</strong> a real<br />
change.<br />
The materialist emphasis of Marxist legal scholarship was, of course, contrary <strong>to</strong><br />
the view of traditional legal scholars, and Marxism also had its critics. Jes Bjarup argued<br />
that Marxist legal scholarship was mostly abstract, ambiguous generalization, and<br />
that while it may have been correct on some issues, it was false regarding the big picture.<br />
Thus, Marxism was mostly ideology and its theoretical premises should be inquired<br />
in<strong>to</strong> critically. 174 Frede Castberg, a proponent of natural law theory, criticized the<br />
Marxists for reducing law <strong>to</strong> an ideological superstructure and over-emphasizing the<br />
class conflict because thus they missed several other important aspects. He nonetheless<br />
gave credit <strong>to</strong> critical legal scholarship for bringing up many important <strong>to</strong>pics. 175 Stig<br />
Jørgensen, a legal philosopher, noted that a major problem of Marxism was that it was<br />
often political or ideological and, moreover, it was very dif<strong>fi</strong>cult <strong>to</strong> verify. 176 Non-<br />
Marxist legal scholars were not convinced of the materialist and ideological emphasizes,<br />
because they had a different conception of law. Problems were often matters of interpretation,<br />
and the Marxists could not prove their point beyond doubt.<br />
Marxism was in any event moving rapidly <strong>to</strong> the center of legal scholarship. Although<br />
Vilhelm Aubert was never an orthodox Marxist, he had always been theoretically<br />
close <strong>to</strong> it, 177 and in his work in the 1970s he drew even closer. In his noteworthy general<br />
analysis of the social functions of law, he wrote that law was always in a close relation<br />
<strong>to</strong> the social class conflict and could never abolish it completely. Thus, he argued,<br />
class conflict had an important role in legal analysis even if it alone could not explain<br />
every legal phenomenon. 178 Although Marxism was criticized for offering a one-sided<br />
image of law in society, 179 it had become a major player in legal scholarship. Beginning<br />
as an interest of study groups of critical young scholars in the universities in the late<br />
1960s and early 1970s, it had become a legal theory among others.<br />
By the mid-1970s, Marxist scholarship had evolved from a critical concept in<strong>to</strong> a<br />
school of jurisprudence, and the legal scholars within the movement wanted <strong>to</strong> have<br />
more cooperation. Thus, the <strong>fi</strong>rst Scandinavian journal for Marxist legal scholarship,<br />
Retfærd, was founded in 1976. Critical legal scholars thought that Marxist analyses of<br />
society had become more frequent given the need for a struggle against capitalism and<br />
for socialism, and thus Marxist legal scholarship was also essential. The purpose of Retfærd<br />
was <strong>to</strong> be a forum for Marxist legal scholarship, which meant a combination of<br />
theory and political practice. There was a need for such a law review since no such<br />
174 Jes Bjarup, Til kritik af marxistisk retsteori, TfR 1975, 169–176, 181–189, 194–195. It seems fair <strong>to</strong><br />
say, as Dalberg-Larsen has done, that even if Bjarup was a <strong>fi</strong>erce critic of Marxism he was nevertheless<br />
willing <strong>to</strong> negotiate with it. (Dalberg-Larsen 2006, supra n. 83 at 139–140.)<br />
175 Frede Castberg, Forsvar for jussen, Lov og rett 1977, 28–29, 32–33.<br />
176 Jørgensen 1976, supra n. 83 at 28.<br />
177 According <strong>to</strong> Jon Elster, it was dif<strong>fi</strong>cult <strong>to</strong> call Aubert a Marxist even in the broadest sense of the<br />
word. (Jon Elster, Statens rolle i marxistisk teori: En vitenskapsteoretisk analyse, Tidsskrift for Samfunnsforskning<br />
1977, 113.) Elster’s argument is very critical and thus somewhat overstated.<br />
178 Vilhelm Aubert, Rettens sosiale funksjon (Oslo: Universitetsforlaget 1976), 7–11, 308–312.<br />
179 Fridtjof Frank Gundersen, Rätten som klassekamp, Lov og rett 1977, 121–130.<br />
192
journal yet existed in Scandinavia. 180 Retfærd was initially a Danish invention because<br />
of the lack of a Danish organization of progressive jurists, but the core of the journal<br />
was <strong>to</strong> be constructed around Nordic cooperation. 181<br />
The purpose of the journal was stated on the opening page of the <strong>fi</strong>rst issue as follows:<br />
RETFÆRD shall work as a forum for the promotion of theoretical and strategic<br />
analysis of legal matters on a broad Marxist foundation of social studies.<br />
This entails a strategic union of theoretical work and political practice.<br />
We aim at a legal science which can contribute <strong>to</strong> the working class’ <strong>fi</strong>ght<br />
against capitalism and in favour of socialism. 182<br />
The foundation of Retfærd demonstrates both the relationship between politics and<br />
theory in Scandinavian Marxist legal scholarship and its expansion in the 1970s, as well<br />
as relating the Scandinavian Marxist legal scholarship <strong>to</strong> the international context. As<br />
Perry Anderson argues, Western Marxism was detached from political agitation during<br />
the interwar years, and “it was <strong>to</strong> speak its own enciphered language, at an increasingly<br />
remote distance from the class whose fortunes it formally sought <strong>to</strong> serve or articulate.”<br />
After the war, Marxism moved more <strong>to</strong>wards philosophy and became interested in various<br />
new <strong>fi</strong>elds, but the 1960s and 1970s reopened the possibility of the combination of<br />
Marxist theory and political practice. 183 During its foundation there were controversies<br />
as <strong>to</strong> whether the journal should be more scholarly or be politically oriented. 184 In the<br />
end, however, the open political <strong>to</strong>ne of the journal was clear, though not surprising,<br />
since critical legal scholarship was openly political. Furthermore, by the mid-1970s critical<br />
legal scholarship had become more widespread and had more proponents, and, <strong>fi</strong>nally,<br />
there was a forum for critical legal scholars <strong>to</strong> disseminate their ideas <strong>to</strong> readers<br />
who shared the same interests.<br />
The <strong>fi</strong>rst issue of Retfærd was dedicated <strong>to</strong> labor law, which suited the purpose<br />
well. First there was a Danish translation of the German legal scholar Thomas Blanke’s<br />
general Marxist theory on labor law, 185 and then the Scandinavian scholars considered<br />
180 Introduktion, Retfærd 1/1976, 5–6.<br />
181 Leder, Retfærd 1/1976, 8–11. The <strong>fi</strong>rst edi<strong>to</strong>rs of the journal were Henrik Bang, Peter Blume, Flemming<br />
Deleuran, Lars Helms, Hans Kjellund, Claus Valeur Nissen, Helmuth Schledermann, Torben Wanscher<br />
and Henrik Zahle. The contact people were Dag Vic<strong>to</strong>r in Sweden, Albert Holand in Norway, and<br />
Niklas Bruun in Finland.<br />
182 Introduktion, Retfærd 1/1976, 5. Translation from: http://www.retfaerd.org/content/journals-his<strong>to</strong>ry<br />
(last visited 14.12.2012). The original reads: “RETFÆRD skal virke som et forum til fremme af teoretiske<br />
og strategiske analyser af retsforhold på et bredt marxistisk samfundsvidenskabeligt grundlag. Dette<br />
indebærer en strategisk forening af teoretisk arbejde og politisk praksis. Der tilstræbes en retsvidenskab,<br />
der kan indgå i arbejderklassens kamp mod kapitalismen og for socialisme.”<br />
183 Perry Anderson, Considerations on Western Marxism (London: Verso 1979), 49–74, 95–96, quotation<br />
at 32.<br />
184 Niklas Bruun, the Finnish contact person of Retfærd during the time of its foundation, provided this<br />
information for me in a conversation on July 2 nd 2013.<br />
185 Thomas Blanke, Problemer i arbejdsretsteori, Retfærd 1/1976, 12–29.<br />
193
more speci<strong>fi</strong>c issues, noting, for instance, that labor law was at the heart of the class<br />
conflict that was a central element in Marxist theory and thus was unique. 186 There were<br />
many strikes in the 1970s and legal scholars were particularly interested in them because<br />
there was much talk about a general crisis of labor in modern society. 187 Marxist<br />
legal scholars thus investigated the use of non-union workers <strong>to</strong> break strikes, 188 and the<br />
use of police force in taming them. 189 Scandinavian critical legal scholarship thus<br />
jumped on the European bandwagon in examining legal problems from a Marxist perspective<br />
and having a law journal for the purpose. 190 Labor law was a natural startingpoint<br />
because of the importance of labor <strong>to</strong> Marxist theory and the leftist cause. The<br />
purpose was <strong>to</strong> deal with contemporary social and legal problems from a perspective<br />
that could be helpful in clarifying the problems from the critical point of view and perhaps<br />
even provide alternative solutions.<br />
Despite the foundation of Retfærd and the expansion of Marxist studies of law,<br />
Marxism in general was beginning <strong>to</strong> fade after the mid-1970s. As an academic phenomenon,<br />
it interested the critical scholars in the late 1970s. 191 They noted that once<br />
Marxism had risen <strong>to</strong> prominence in the late 1960s, the disunited scholarship of the<br />
1970s had led <strong>to</strong> its withering and the distance between academic research and political<br />
activity had increased. The political deactivation and theoretical impoverishment had<br />
reduced Marxism <strong>to</strong> an alternative theory among many others. 192 They argued further<br />
that it was politics and academic repression that had suffocated Marxism theoretically<br />
and with respect <strong>to</strong> practice. 193 By the late 1970s, there was a Marxist bloc at the universities<br />
in Scandinavia, but the movement had not succeeded in establishing a <strong>fi</strong>rm<br />
position in the university curricula, a uniform theory, or a steady connection with politics.<br />
There was still both a practical and theoretical need for critical leftist scholarship,<br />
but its charm and utility had weakened since the beginning of the decade.<br />
Scandinavian critical legal thought matured and developed during the 1970s.<br />
Marxist legal scholarship was the most radical scholarly endeavor in Scandinavia in the<br />
1970s. The critical thought in the universities had spread during the 1960s, and when it<br />
came <strong>to</strong>gether with the theories and methods of sociology of law, and the critical theory<br />
and Marxism at the turn of the decade, it developed in<strong>to</strong> Marxist legal scholarship. It<br />
was a theoretical form of the critical thought, pursuing a critical view of the law as an<br />
outcome of the class conflict. Whereas sociological jurisprudence discussed the rela-<br />
186 Peter Blume, Arbejdskraftens organisering ─ om eksklusivaftaler: Ansatser til en retsteori, Retfærd<br />
1/1976, 53–54; Niklas Bruun, Arbetsrätt och civilrätt ─ några utvecklingslinjer, Retfærd 1/1976, 33.<br />
187 Per Jacobsen, Krise for det arbejdsretlige system? Juristen og økonomi 1977, 97–111.<br />
188 Lars Helms, Om arbejdet frit, Retfærd 1/1976, 44–51.<br />
189 Jørgen Jepsen, Arbejdskonflikter og “den offentlige ro og orden”, Retfærd 1/1976, 77–156.<br />
190 The German journal Kritische justiz was founded in 1968 for critical and Marxist legal scholarship.<br />
191 Issues 2–3/1977 of Häften för kritiska studier were dedicated <strong>to</strong> academic Marxism in the Nordic<br />
Countries. The <strong>to</strong>ne of the issues was somewhat wistful, as if Marxism was coming <strong>to</strong> its end.<br />
192 Marxistiska studier i norden, HfKS 2/1977, 2.<br />
193 Den akademiska marxismens dilemma, HfKS 3/1977, 2–5. It was noted that Finland was an exception<br />
in which the connection between scholarship and politics was relatively close even though the academic<br />
repression of Marxism had been especially severe.<br />
194
tionship between law and society, Marxist legal scholarship paid attention <strong>to</strong> the relation<br />
between law and class conflict, the ideological functions of law, and its materialist interests.<br />
By the mid-1970s, the Marxist bloc had grown <strong>to</strong> the extent that they founded a<br />
law journal and <strong>to</strong> tried <strong>to</strong> <strong>fi</strong>nd a solid basis for cooperation. Although Marxism in general<br />
was losing its momentum, it still had extensive support in academia.<br />
Marxist legal scholarship was a kind of radicalization of the alternative legal<br />
scholarship and a theoretical representation of the radical and antagonist thought similar<br />
<strong>to</strong> CLS in the United States. The origins of the movements were in the social turbulence<br />
of the 1960s, the theoretical transformation of jurisprudence and academic scholarship,<br />
the leftist thought, the efforts <strong>to</strong> improve the rights of the citizen, and the pursuit of authenticity<br />
among the critical scholars. In the 1970s, the critique was set in the framework<br />
of theory and philosophy. In a sense, Scandinavian Marxist jurisprudence was also<br />
a reaction against the sociological jurisprudence, as was the critical legal scholarship in<br />
the United States. However, the difference was rather about the way the legal sociologists<br />
analyzed and interpreted the empirical material than about the approach as such.<br />
The radicals argued that sociological jurisprudence neglected the ideological aspect of<br />
law, and thus missed the way law created people’s conceptions of society and reality.<br />
The basic premises of Scandinavian Marxist legal scholarship and American CLS were<br />
also much the same. They both analyzed the relationship between law and society critically,<br />
and emphasized the position of values in law and the ideological functions of law.<br />
The rhe<strong>to</strong>ric used and the theoretical basis marked the differences. Scandinavian critical<br />
scholarship was based on Marxism, whereas the American scholars applied several theories<br />
and often avoided socialist rhe<strong>to</strong>ric. Thus the Scandinavians also had a common<br />
basis for critical scholarship, although with differing interpretations, whereas the Americans<br />
operated with various approaches. After the mid-1970s, both movements organized;<br />
Scandinavian scholars founded Retfærd, American scholars founded CLS. The<br />
evolution of the organized forms of the criticism reflects their position within the academic<br />
controversies; critical legal scholarship was also a <strong>to</strong>ol of criticism and an attempt<br />
<strong>to</strong> change the tradition. In the following sections I will discuss the dimensions of<br />
the criticism in order <strong>to</strong> illuminate its characteristics.<br />
4 Changes in criminal law scholarship, 1965─1979<br />
4.1 Criminal law and alternative legal scholarship<br />
Criminal law scholarship and criminology in particular were important parts of the alternative<br />
legal scholarship of the 1960s and 1970s, being one of its <strong>fi</strong>rst and most influential<br />
forms. Alternative criminological research related <strong>to</strong> the rise of the sociology of<br />
law and also affected its development. Alternative criminology in the 1960s regarded<br />
195
crime as a social phenomenon, relating rather <strong>to</strong> social structures than <strong>to</strong> the deviant<br />
personality of the offender. Furthermore, the concept of crime was considered as a social<br />
construct, a manifestation of social power rather than the expression of a natural<br />
state. Alternative criminal legal scholarship thus began <strong>to</strong> investigate crime as a phenomenon<br />
of social reality and focused on the reasons why crime occurred and why it<br />
was unders<strong>to</strong>od the way it was.<br />
In this section, I will examine the rise of the alternative criminology and criminal<br />
legal scholarship in the 1960s. Besides sociology of law, criminal law was the <strong>fi</strong>rst<br />
branch of law in which a noteworthy school of alternative scholarship emerged, and was<br />
therefore an essential element in the development of critical legal scholarship. Since a<br />
comprehensive analysis of the subject would require a book of its own, I will concentrate<br />
on its main features. I shall explore the alternative views of the concept of crime,<br />
methods of investigating it, and the efforts of the scholars <strong>to</strong> influence criminal law.<br />
Criminal law scholars were those who most actively participated in legal and political<br />
debates and tried <strong>to</strong> influence the legal-political practice. The lasting influence of the<br />
alternative criminal law scholarship of the 1960s and 1970s was the heavy emphasis on<br />
criminology that the Scandinavian criminal law scholarship exhibits even <strong>to</strong>day.<br />
The origins of the alternative criminal law scholarship of the 1960s are in the<br />
postwar sociology, criminology, and social science. Survey studies of American and<br />
British scholars in the late 1940s and early 1950s revealed that crime was much more<br />
widespread in society than was traditionally believed. Social-psychological, sociological,<br />
and structural criminology were established when these notions were combined<br />
with the new currents in social studies concentrating on social structures. Scandinavian<br />
scholars often studied in the United States in the 1950s and brought the new methodologies<br />
of criminology with them, and alternative criminology began <strong>to</strong> flourish in the late<br />
1950s and early 1960s. The social upheaval of the 1960s intensi<strong>fi</strong>ed the need and the<br />
desire <strong>to</strong> study crime as a reflection of social power structures, and the Scandinavian<br />
ministries of justice were often interested in criminological research as a basis for their<br />
policies. Criminology and sociology of law in Scandinavia thus <strong>to</strong>ok the same path in<br />
the 1960s, and cooperation between the scholars in the Nordic Countries began. The<br />
“Scandinavian Studies in Criminology” study series was established in 1965 in order <strong>to</strong><br />
expose Scandinavian criminological research <strong>to</strong> an international audience. 194<br />
194 Johannes Andenæs, Foreword, 7–9, in Scandinavian Studies in Criminology, Volume 1 (Oslo: Universitetsforlaget<br />
1965), 7–11. For a description of Scandinavian criminology before the 1960s, see Nils<br />
Christie, Scandinavian Criminology, Sociological Inquiry 1961, 93–104, and for a description of Scandinavian<br />
criminology in the 1960s, see Nils Christie, Scandinavian Criminology Facing the 1970’s, in<br />
Scandinavian Studies in Criminology Volume 3 (Oslo: Universitetsforlaget 1971), 121–149. Before the<br />
Second World War, Scandinavian criminology was founded on the European tradition, but it combined<br />
with the sociological elements of American tradition after the War. (Christie 1961, id. at 93; Christie<br />
1971, id. at 121.) A reason for the postwar dominance of Anglo-American scholarship was the fact that<br />
scholarship programs made it easier <strong>to</strong> go <strong>to</strong> New York or London <strong>to</strong> study than <strong>to</strong> the cities of the European<br />
continent. (Christie 1971, id. at 121.) There was also criminological and sociological scholarship in<br />
Scandinavia in the 1930s and 1940s. (Lars Björne, Realism och skandinavisk realism: Den nordiska rätts-<br />
196
Critical criminology had established itself as a school of criminal jurisprudence by<br />
the mid-1960s, investigating the social fac<strong>to</strong>rs of crime. It shared the trends in alternative<br />
legal scholarship in discrediting doctrinal analysis. Aubert, for instance, argued that<br />
the traditional studies did not give a realistic account of crime because they ignored the<br />
social context. 195 Preben Wolf and Erik Høgh, on the other hand, conducted a thorough<br />
statistical analysis of crime, concluding that since crime originated mostly from social<br />
circumstances, criminal policy should include aspects of social, welfare, and cultural<br />
politics. 196 Like sociological jurisprudence, the alternative approach <strong>to</strong> crime emphasized<br />
contextual studies, cross-disciplinary research, and a focus on law in action.<br />
The new approach encouraged various studies on particular aspects of the control<br />
system from a realistic and empirical perspective. These studies concerned such things<br />
as the social role of the public prosecu<strong>to</strong>r, 197 the psychological aspects of the influence<br />
of social experiences on the statements of witnesses, 198 and problems regarding the probation<br />
system. 199 There was a serious interest in the functions and effects of the system,<br />
and the structural and the functional approach were seen as helpful in understanding its<br />
reasons and motives. As the general atmosphere was critical of public authorities and<br />
the government had optimistic faith in social planning, scholars paid more attention <strong>to</strong><br />
the realities of the state institutions.<br />
A signi<strong>fi</strong>cant study on the control system was Thomas Mathiesen’s The Defences<br />
of the Weak, published in 1965. Mathiesen was a sociologist who studied in the United<br />
States in the 1950s and contributed <strong>to</strong> the Scandinavian sociology of law and criminology<br />
in the 1960s. In his doc<strong>to</strong>ral dissertation he explored the informal structures of power<br />
within a Norwegian correctional institution and the experiences of the inmates regarding<br />
the treatment and the punishment within the facilities. He developed a theory of censovetenskapens<br />
his<strong>to</strong>ria, Del IV, 1911–1950 (S<strong>to</strong>ckholm: Rättshis<strong>to</strong>riskt bibliotek 2007), 64–65, 82, 185–<br />
187.)<br />
Traditional wisdom says that American influences brought a more sociological <strong>to</strong>ne <strong>to</strong> Scandinavian<br />
criminology. In 1976, however, Leif Persson argued that Scandinavian criminology lost its sociological<br />
grip because of the American influences which were mostly social-psychological, stressing individual<br />
behaviorism. (Leif Persson, Sociologin som försvann, NTfK 1976, 97–98, 108–115, 117–119.) It is dif<strong>fi</strong>cult<br />
fully <strong>to</strong> agree with his arguments. True, research was theoretical, and the perspective of the group and<br />
the individual was often stressed. However, the purpose was <strong>to</strong> relate the individual <strong>to</strong> a social context,<br />
and society and the individual were connected in many respects. Methodologies, however, varied, so that<br />
the overall estimation of the issue depends on the perspective and methodologies of the reviewer.<br />
Moreover, there might be a difference of opinion as <strong>to</strong> what could be meant by a sociological perspective.<br />
The perspective of social psychology might seem less “sociological” for one than for the other.<br />
Ragnar Hauge, reviewing a book gathering the career of Nils Christie, noted that Christie’s scholarship,<br />
like Norwegian criminology in general, had developed from the early <strong>fi</strong>fties <strong>to</strong> the late seventies from an<br />
empirical, social psychological view <strong>to</strong> emphasizing the aspects of social philosophy more. (Ragnar<br />
Hauge, Vandring gjennom norsk etterkrigskriminologi, Lov og rett 1979, 166.)<br />
195 Aubert 1964, supra n. 42 at 20–21; Aubert 1965, supra n. 43 at 60–69.<br />
196 Preben Wolf & Erik Høgh, Kriminalitet i velfærdssamfundet (København: Jørgen Paludans forlag<br />
1966), 10, 25, 63.<br />
197 Klas Lithner, Åklagarrollen, TfR 1965, 85–116.<br />
198 Berl Kutschinsky, Nogle vidnepsykologiske problemer belyst ved et eksperiment: Narkomanen der<br />
afbrød statsadvokaten, TfR 1969, 341–368.<br />
199 Ragnar Hauge, Institutional Dilemmas in Probation and Parole, in Scandinavian Studies in Criminology,<br />
Volume 2 (Oslo: Universitetsforlaget 1968), 41–52.<br />
197
iousness which referred <strong>to</strong> the reactions weak people felt in relation <strong>to</strong> their superiors.<br />
According <strong>to</strong> him, there was a consensus on the established norms but the ruled often<br />
felt that the rulers deviated from them. Power in this context referred <strong>to</strong> the ability <strong>to</strong><br />
control the distribution of burdens and bene<strong>fi</strong>ts within the established structure of relations.<br />
Although the theory was constructed in relation <strong>to</strong> the correctional institution,<br />
Mathiesen argued that censoriousness worked in society as well. 200 The study reflected<br />
the sociological and empirical orientation of alternative scholarship, in which the of<strong>fi</strong>cial<br />
rules were in the background and the unof<strong>fi</strong>cial control and the power structures<br />
were more important. Although the study concerned a correctional institution, the theory<br />
was also applied <strong>to</strong> social structures. The leap seems <strong>to</strong> have meant that the society<br />
was also a kind of a prison in which the ordinary citizen was subjected <strong>to</strong> the higher<br />
stratum and control was mostly exercised through unof<strong>fi</strong>cial methods.<br />
Criminology was thus linked <strong>to</strong> the larger discourse on the nature of society and<br />
control. Alvar Nelson reflected the radical attitude when he criticized the Swedish criminal<br />
code for being conservative and biased against the traditional crimes. He argued<br />
that criminal law was a remnant of the class society and thus the system had <strong>to</strong> be seriously<br />
revised. 201 The radical view of crime caused the tension between conservative and<br />
radical criminology, as the Finnish sociological legal scholar Inkeri Anttila called them,<br />
the latter of which saw crime as an expression of social conflict and criminal policy as a<br />
mean of balancing these conflicts. 202 This notion was criticized for neglecting the good<br />
aspects of the conservative criminology. 203 Just as there was a conflict between traditional<br />
and alternative scholarship, there was a conflict between traditional and alternative<br />
criminal policy, the latter arguing more for reform. The problem here was also a<br />
matter of debate, because the scholars had different perspectives on the problems and<br />
therefore interpreted them differently.<br />
Alternative legal scholarship was closely related <strong>to</strong> politics. Some scholars, for instance,<br />
exhibited political biases in their studies, 204 thus reflecting the argument that the<br />
relationship between politics and scholarship had <strong>to</strong> be openly reviewed. Besides the<br />
politicization of scholarship, cross-disciplinary research was another issue in the strife<br />
over political scholarship. The Norwegian legal scholar, Johannes Andenæs, who also<br />
participated actively in sociological and criminological studies, noted that crossdisciplinary<br />
research was necessary in providing social data for political reform 205 and<br />
200 Thomas Mathiesen, The Defences of the Weak: A Sociological Study of a Norwegian Correctional<br />
Institution (London: Tavis<strong>to</strong>ck Publications 1965), esp. at 3–18, 70–72, 150–151, 228–230.<br />
201 Alvar Nelson, Brottsbalken och klassamhället, 75–82, in Murray (ed.) 1967, supra n. 119 at 75–83.<br />
202 Inkeri Anttila, Konservativ och radikal kriminalpolitik i Norden, NTfK 1967, 245–251. Anttila meant<br />
by the distinction between conservative and radical the pace of reform in criminal policy. (Id. at 237.)<br />
Thus, what once was radical was now considered as conservative. Inkeri Anttila was a major <strong>fi</strong>gure in<br />
critical criminology in Finland.<br />
203 E. Hoeck-Gradenwitz, Kriminalpolitik: Ud fra socialpsykologiske synspunkt, NTfK 1968, 40–43.<br />
204 Aubert 1964, supra n. 42 at 8; Mathiesen 1965, supra n. 200 at vii.<br />
205 Johs. Andenæs, Kriminologi og kriminalpolitikk, 40, in Johs. Andenæs, Anders Bratholm, Nils Christie,<br />
Kriminalitet og Samfunn: Artikler og foredrag (Oslo: Pax forlag 1970), 33–45.<br />
198
modifying legal scholarship <strong>to</strong> correspond <strong>to</strong> contemporary problems. 206 In many ways,<br />
alternative scholarship made it possible <strong>to</strong> participate in academic, social, and political<br />
debates. It was reformist scholarship which also <strong>to</strong>ok social and political problems seriously<br />
and provided data for reform. Critical criminologists regarded themselves as experts<br />
on contemporary problems and thus pointed out the utility of their scholarship.<br />
An important <strong>to</strong>pic on which the political orientation of the alternative methodology<br />
was obvious was recidivism. Studies on recidivism claimed <strong>to</strong> provide useful information<br />
about criminal offenders and the fac<strong>to</strong>rs that either increased or decreased the<br />
probability of recidivism. 207 It was thought that this data enabled analysis of the ef<strong>fi</strong>ciency<br />
of the criminal justice system and its punitive aspects. In addition, studies supplied<br />
information on the sociological structure of crime. Thus, there was both a sociological<br />
and a political aspect <strong>to</strong> the studies since they afforded data on crime as a social<br />
phenomenon and on the measures meant <strong>to</strong> combat it.<br />
Although criminology was the emerging methodology of crime studies, the scholars<br />
were not completely unanimous on the methods and purposes of criminology. The<br />
1960s and 1970s witnessed various efforts <strong>to</strong> explicate the methods of criminology in a<br />
modern way. Nils Christie provided his view on criminology in 1965 in a book which<br />
was based on the analysis of the relation between norm-abiding and deviance. According<br />
<strong>to</strong> Christie, the legisla<strong>to</strong>r de<strong>fi</strong>ned crime, which was thus a manifestation of social<br />
power, and criminology studied the social reflections of this power structure. 208 Christie<br />
was laying down an outline of the methods of alternative criminology. Later he criticized<br />
the standard account of criminology, Stephan Hurwitz and Karl Christiansen’s<br />
voluminous book, 209 for its lack of sociological perspective. Christie argued that criminology<br />
was meaningless without a solid connection with society. 210 Because of the<br />
stress on the sociological elements in studying crime, alternative criminology sought <strong>to</strong><br />
point out that criminology was not an au<strong>to</strong>nomous discipline but cross-disciplinary<br />
scholarship. Besides reflecting the politicization of scholarship and the transformation<br />
of the methodologies, the attack on traditional scholarship and the emphasis on crossdisciplinary<br />
work was also an effort <strong>to</strong> dethrone the tradition and <strong>to</strong> replace it with the<br />
new approach.<br />
The schism between the traditional and alternative approaches was evident in<br />
criminology, as it was in jurisprudence. One of the authors of the standard criminology<br />
206 Johs. Andenæs, Skjebne, skyld, straff, 70, in Andenæs, Bratholm, Christie 1970, supra n. 205 at 46–<br />
70.<br />
207 Inkeri Anttila & Achilles Westling, A Study in the Pardoning of, and Recidivism Among, Criminals<br />
Sentenced <strong>to</strong> Life Imprisonment, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 13–34;<br />
Karen Bentsen & Karl O. Christiansen, A Resocialization Experiment with Short-Term Offenders, in<br />
Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 35–54; Karl O. Christiansen, Mimi Elers-<br />
Nielsen, Louis Le Maire, George K. Stürup, Recidivism among Sexual Offenders, in Scandinavian Studies<br />
in Criminology, Volume 1 (Oslo 1965), 55–85; Sv. Gram Jensen, Fængsel på livstid: Danmark<br />
1933─57, NTfK 1972, 81–89.<br />
208 Nils Christie, Kriminalsosiologi (Oslo: Universitetsforlaget 1965).<br />
209 Stephan Hurwitz & Karl O. Christiansen, Kriminologi I–II (København: Gyldendal 1968–1971).<br />
210 Nils Christie, Litteratur [Kriminologi], NTfK 1971, 349.<br />
199
and a men<strong>to</strong>r of many Scandinavian criminologists, Karl Christiansen, criticized a Finnish<br />
text book on criminology, titled Criminology from the Perspective of Criminal Politics,<br />
211 for its policy-oriented view, arguing that the book could just as well have been<br />
named “criminal politics from the criminological perspective”. 212 The more traditional<br />
scholars did not like the politicization of scholarship that was an important part of the<br />
alternative criminology. By bridging the gap between research and politics, alternative<br />
scholars sought <strong>to</strong> bring academia closer <strong>to</strong> society. Criminology was thus a clear example<br />
of the academic controversies and the urge <strong>to</strong> transform the tradition. The endeavor<br />
<strong>to</strong> bring the new elements in<strong>to</strong> criminological research was in part an effort <strong>to</strong><br />
deprecate the tradition in order <strong>to</strong> support the alternative cause.<br />
Alternative criminology did bring various new elements in<strong>to</strong> criminal law scholarship,<br />
but it was not radical criticism of the system. Whether functionalist, sociological,<br />
realist, or political, the minor branch of radical criminologists criticized the alternative<br />
criminology for being bourgeois. A Finnish radical criminologist, Klaus Mäkelä, for<br />
example, argued that the recent Scandinavian critical criminology was <strong>to</strong>o abstract and<br />
lacked a context. According <strong>to</strong> him, critical criminologists had universalized the concept<br />
of crime and missed the signi<strong>fi</strong>cance of class conflict in this regard. He argued that<br />
criminological studies should be related <strong>to</strong> the legal system as a whole. 213 Marxist or<br />
radical criminology differed from critical or alternative criminology in that the former<br />
sought <strong>to</strong> change the whole social and legal structure, whereas the latter focused rather<br />
on the structure of criminal law. In addition, whereas critical criminology saw crime as<br />
a reflection of social power relations, radical criminology related crime directly <strong>to</strong> the<br />
economic basis of society. In Scandinavia, Marxist criminology was, however, a marginal<br />
phenomenon and did not have the signi<strong>fi</strong>cance that critical criminology did.<br />
Critical criminology developed in the 1950s and began <strong>to</strong> establish itself as a<br />
school of criminal jurisprudence in the 1960s. The rise of the sociology of law and the<br />
recent trends in scholarship influenced its development, but it was also driven further by<br />
the social turmoil and the academic conflict between the traditional and the alternative<br />
professions. Critical criminology contributed greatly <strong>to</strong> the development of alternative<br />
legal scholarship, providing data and arguments for criticism of law and society. It was<br />
cross-disciplinary scholarship responding <strong>to</strong> the contemporary social needs and <strong>to</strong> the<br />
planning optimism of the 1960s. Its prime objective was the analysis of crime as a social<br />
phenomenon, reflecting the social power structure, as will be clari<strong>fi</strong>ed in the following<br />
sub-section.<br />
211 Inkeri Anttila & Patrik Törnudd, Kriminologi i kriminalpolitisk perspektiv (S<strong>to</strong>ckholm: P.A. Norstedt<br />
& Söners förlag 1973). The book was a Swedish translation and slightly modi<strong>fi</strong>ed version of a Finnish<br />
book by the same authors.<br />
212 Karl O. Christiansen, Litteratur [Kriminologi i kriminalpolitisk perspektiv], NTfK 1974, 188.<br />
213 Klaus Mäkelä, The Societal Tasks of the System of Penal Law, 47–53, 61–64, in Scandinavian Studies<br />
in Criminology, Volume 5 (Oslo: Universitetsforlaget 1974), 47–65.<br />
200
4.2 Criminal law scholarship and criminal policy<br />
Critical criminal law scholars adopted a realistic perspective on the functions of the administration<br />
of criminal justice in order <strong>to</strong> reveal the ways it actually functioned in society.<br />
Their critical notions and the results of their studies encouraged them <strong>to</strong> reconsider<br />
some of the fundamental premises of the criminal system. Important in the respect were<br />
the studies on self-reported crime. Becoming more common during the 1960s and<br />
1970s, they sought <strong>to</strong> point out that crime was much more widespread in society than<br />
was normally assumed but the system functioned selectively against the lower social<br />
classes. 214 The moral standard of the critical thought of the time stressed that people<br />
were not that different, but it was the system that caused the differences. In order <strong>to</strong><br />
transform the criminal system <strong>to</strong> meet the critical standard, Nils Christie, for instance,<br />
argued that one should not polarize people in<strong>to</strong> saints and sinners, but approach crime as<br />
a social problem. 215 The studies on self-reported crime adhered <strong>to</strong> the fact that people of<br />
all classes committed crimes, but the of<strong>fi</strong>cial statistics revealed only the tip of the iceberg<br />
that the of<strong>fi</strong>cial control system was able <strong>to</strong> solve, and that the system discriminated<br />
against the lower classes. Critical criminology thus directed its research <strong>to</strong> the reform of<br />
criminal policy, and the struggle <strong>to</strong> a humane criminal policy became the slogan of the<br />
1960s and the 1970s.<br />
The arguments against the treatment ideology and special deterrence and for general<br />
deterrence related <strong>to</strong> the studies on self-reported crime. The critical criminology<br />
attacked the treatment ideology that functioned as a basis of the contemporary system of<br />
punishment. 216 While the defenders of the treatment ideology argued that its critics did<br />
not have an accurate image of it, 217 critical scholars kept piling up evidence on the bad<br />
effects of treatment and the idea of special deterrence it was based on. They argued that<br />
sentences based on individual treatment ideology caused much uncertainty and feelings<br />
214 Johs. Andenæs, Knut Sveri, Ragnar Hauge, Kriminalitetshyppigheten hos ustraffede I: Norsk undersøkelse,<br />
NTfK 1960, 97–112; Nils Christie, Johs. Andenæs, Sigurd Skirbekk, A Study of Self-<br />
Reported Crime, in Scandinavian Studies in Criminology, Volume 1 (Oslo 1965), 86–116; Kerstin<br />
Elmhorn, Study in Self-Reported Delinquency among Schoolchildren in S<strong>to</strong>ckholm, in Scandinavian<br />
Studies in Criminology, Volume 1 (Oslo 1965), 117–146; Inkeri Anttila & Ris<strong>to</strong> Jaakkola, Piiloon jäävä<br />
rikollisuus (<strong>Helsinki</strong>: Kansalaiskasvatuksen keskus, Monistesarja 12/1966); Birgit Werner, Den faktiska<br />
brottsligheten, NTfK 1971, 106–141; Birgit Werner, Socialgruppsfördelning vid självdeklarerad<br />
brottslighet, NTfK 1971, 191–215; Vagn Greve, Kriminalitet som normalitet: En studie i den ikkeregistrerede<br />
kriminalitet i Danmark (København: Juristforbundets Forlag 1972); Ragnar Hauge,<br />
Hverdagsvold i Norge, Lov og rett 1972, 259–264; Leif Lenke, Den dolda våldsbrottsligheten i S<strong>to</strong>ckholm<br />
─ en sjukhussurvey, NTfK 1973, 136–145; Helge Røstad, Noen betraktninger om kriminalstatistikk<br />
og om kriminalitetsutviklingen i Norge gjennom de siste 20 år, NTfK 1974, 1–41; Peter Sigsgaard,<br />
Voldsskader og skjult vold i en arktisk by, NTfK 1974, 266–277; Emma Vestergaard, Om voldtægtsofre:<br />
Victimologi, NTfK 1974, 151–179; Anne-Birgitte Westh, Skadestuebehandlede ofre for vold: Frederiksberg<br />
Hospital 1972, NTfK 1974, 64–76.<br />
215 Christie 1965, supra n. 208 at 9; Christie 1971, supra n. 194 at 126–127.<br />
216 Anttila 1967, supra n. 202 at 239–243.<br />
217 Hoeck-Gradenwitz 1968, supra n. 203 at 40–41.<br />
201
of injustice among the convicts, 218 and that it could not contribute <strong>to</strong> the preservation of<br />
general morals in society, which ought <strong>to</strong> be the primary function of the criminal system.<br />
219 They argued further that special deterrence had caused marked diversity in the<br />
criminal system which was bad for equality and justice. 220 Therefore the criminal system<br />
should be based on general deterrence because then punishments would be measured<br />
according <strong>to</strong> the gravity of the crime. 221 The pursuit of a humane system of criminal<br />
law was a clear reflection of the social activism of these decades. The arguments<br />
against the individual and for uni<strong>fi</strong>ed standards of punishment were reactions <strong>to</strong> the liberalization<br />
of society, as well as against the tradition of criminal law scholarship. In the<br />
attempt <strong>to</strong> change the tradition, the alternative scholars adopted the role of a u<strong>to</strong>pian<br />
politician, and criticized the basis of the system.<br />
In arguing against harsh punishments and special deterrence, scholars began <strong>to</strong><br />
criticize the prison system. Studies had already shown in the late 1950s and early 1960s<br />
that treatment was not especially effective in curbing recidivism, 222 but the groundbreaking<br />
study in Scandinavia was Bengt Börjeson’s detailed treatise, which concluded<br />
that recidivism was often higher after incarceration than surveillance and control in<br />
freedom. 223 Since the time was now ripe for a thorough criticism of the treatment ideology<br />
and reform of the system of punishment, the studies of the 1960s on the subject<br />
were seeds sown on fertile land. Thus, scholars argued that punishment should aim at<br />
re-socializing the convicts, 224 and that the methods of rehabilitation after punishment<br />
should also be reformed accordingly. 225 In addition, Christie noted that incarceration<br />
was such a harsh intrusion in<strong>to</strong> the personal liberty of the citizen that it should be used<br />
only for serious offences. 226 Since crime was <strong>to</strong> be unders<strong>to</strong>od as a social phenomenon,<br />
social policy measures would be the most appropriate in upholding general morals<br />
against crime and improving the social de<strong>fi</strong>cits which caused crime. 227 The criminal<br />
justice system of the 1960s was based on incarceration, treatment ideology, and special<br />
deterrence and the critical legal scholars were at pains <strong>to</strong> point out their inef<strong>fi</strong>ciency and<br />
inappropriateness. Since the alternative thought of the 1960s saw crime as a social phenomenon,<br />
it also reviewed the administration of criminal justice against its social functions.<br />
218 Mathiesen 1965, supra n. 200 at 93–94, 153, 166–178, 180.<br />
219 Johs. Andenæs, Straff og almenprevensjon, TfR 1966, 1–47; Johs. Andenæs, The General Preventive<br />
Effects of Punishment, 114 University of Pennsylvania Law Review 949–983 (1966).<br />
220 Johs. Andenæs, Om virkningen av forskjellige reaksjoner mot lovovertredere, NTfK 1966, 117–120.<br />
221 Eva Nordland, Allmennprevensjon og disiplin i oppdragelsen, NTfK 1966, 243–244.<br />
222 Ragnar Hauge, Straffens begrunnelser (Oslo: Universitetsforlaget 1996), 263–264.<br />
223 Bengt Börjeson, Om påföljders verkningar: En undersökning av prognosen för unga lagöverträdare<br />
efter olika slag av behandling (S<strong>to</strong>ckholm: Almqvist & Wiksells 1966), 137–138.<br />
224 Gunnar Marnell, Fängelsesamhället, NTfK 1967, 206–225.<br />
225 Hauge 1968, supra n. 199; Inkeri Anttila, Kriminalvård i frihet ─ social service eller kontroll? NTfK<br />
1973, 24–36; Barbro Schillander-Lundberg, Kriminalvård i frihet: Service – kontroll, NTfK 1973, 113–<br />
119.<br />
226 Nils Christie, Changes in Penal Values, 161–162, 172, in Scandinavian Studies in Criminology, Volume<br />
2 (Oslo 1968), 161–172.<br />
227 Göran Hultkranz, Några synpunkter på brott och straff, SvJT 1967, 285–292.<br />
202
Crime was such an important <strong>to</strong>pic that the link between political practice and alternative<br />
scholarship on crime was easy <strong>to</strong> form. The Scandinavian associations for<br />
criminal reform were established in Sweden in 1966, Denmark and Finland in 1967, and<br />
Norway in 1968. These associations combated the penal system and fought for reform.<br />
The research of the time was closely connected <strong>to</strong> the operation of these movements,<br />
and many of the critical legal scholars on criminal law were actively involved in the<br />
associations. The associations were obvious signals of the seriousness of the scholar’s<br />
intention <strong>to</strong> alter the paradigm, but also of the benevolent aspects of the scholarship.<br />
Alternative scholarship on crime was not simply academic scholarship or a method of<br />
criticism, but also a <strong>to</strong>ol of political activism and reform.<br />
In 1968, a conference on the reform of criminal policy was held in Sweden. The<br />
scholars of alternative scholarship on criminal law could discuss the recent scholarship<br />
on the problems of crime and contemplate the potential for reform. The conference,<br />
which was <strong>fi</strong>lled with familiar names of alternative legal scholarship and critical criminology,<br />
dealt with relevant <strong>to</strong>pics regarding both politics and scholarship. 228 Nestius,<br />
Nelson, and Hecksher argued for closer cooperation between social care and criminal<br />
after care, 229 and Mathiesen and Gustavsen criticized the prison institution for its stigmatizing<br />
and incapacitating influences. 230 Many scholars argued that criminal law was<br />
biased against the so-called traditional crimes and thus against the lower social classes,<br />
even though studies had pointed out that crime was much more common in society. 231<br />
The gathering was a perfect place for the scholars <strong>to</strong> point out that the criminal system<br />
was outdated and biased. Alternative and critical legal scholarship had become so common<br />
by the end of the 1960s, in particular with respect <strong>to</strong> criminal law, that it was possible<br />
<strong>to</strong> organize a conference <strong>to</strong> discuss problems and reform. The purpose of the conference<br />
seems <strong>to</strong> have also been <strong>to</strong> create a connection between scholarship and practice<br />
that would encompass all the aspects of the system. Thus, the pursuit of the humane<br />
criminal policy was a common aspect of both politics and scholarship.<br />
The humane perspective on criminal law changed the critics’ perception of crime,<br />
which was not <strong>to</strong> be <strong>to</strong>lerated, but was <strong>to</strong> be unders<strong>to</strong>od. 232 As noted by the organizers<br />
of a Swedish symposium on social change and criminality, crime was a part of a complex<br />
<strong>to</strong>tality of social problems, and thus could be comprehended as a symp<strong>to</strong>m among<br />
228 See Nestius (ed.) 1969, supra n. 8.<br />
229 Nestius 1968, supra n. 8 at 9–12; Alvar Nelson, Straff ─ eller erbjudande om hjälp? 168, in Nestius<br />
(ed.) 1968, supra n. 8 at 163–168; Sten Heckscher, Reformkrav ─ i längre och kortare perspektiv, 170, in<br />
Nestius (ed.) 1968, id. at 169–174.<br />
230 Thomas Mathiesen, Vakt och vård ─ kan det förenas? 144–149, in Nestius (ed.) 1968, id. at 139–150;<br />
Nils Gustavsson, Frälsningen ─ och de <strong>to</strong>tala institutionerna, 151–160, in Nestius (ed.) 1968, id. at 151–<br />
160.<br />
231 Lars D. Eriksson, Olikheten inför lagen, 58–61, in Nestius (ed.) 1968, id. at 58–65; Torstein Eckhoff,<br />
Straffens sociala slagside, 68–70, in Nestius (ed.) 1968, id. at 66–73; Kettil Bruun, Kontrollpolitik och<br />
frihetsberövande, 76, in Nestius (ed.) 1968, id. at 74–78.<br />
232 Hauge 1972, supra n. 215 at 211; Knut Sveri, Våldet i samhället, NTfK 1974, 42–44.<br />
203
many of the consequences of the social changes. 233 It was typical, as done in the symposium,<br />
<strong>to</strong> gather scholars of various disciplines <strong>to</strong> discuss crime and its control in all its<br />
possible social aspects, 234 since the emphasis on cross-disciplinary analysis reflected the<br />
pursuit of the comprehensive perspective of alternative legal scholarship.<br />
Arguments for the class-biased nature of the criminal control system were more<br />
shrill in the mid-1960s. A signi<strong>fi</strong>cant <strong>fi</strong>gure was Aubert, who conducted sociological<br />
studies and developed critical theory on the concept of crime. 235 On the basis of Aubert,<br />
Gunnar Olofsson conducted a master’s thesis study on the impact of the social status on<br />
punishment in traf<strong>fi</strong>c crimes, concluding that there was a certain amount of status-based<br />
discrimination in the judicial process. 236 The study might have passed unnoticed had it<br />
not been used as evidence of discrimina<strong>to</strong>ry criminal adjudication in a TV program. It is<br />
indeed odd how signi<strong>fi</strong>cant this little study became <strong>to</strong> the Scandinavian scholarship on<br />
the issue, but because of the wide publicity of the study, Malmer, a more traditional<br />
legal scholar, criticized it for result-oriented interpretation of the empirical material and<br />
for an inaccurate description of the criminal justice system. 237 Interpretation of empirical<br />
statistics was obviously a matter of debate and often reflected the world-view of the<br />
interpreter, but the attention the study attracted also shows the different perceptions of<br />
the competing views.<br />
Critical scholars, nonetheless, argued for a realistic analysis of criminal law. For<br />
instance, Andenæs and Hauge researched the sentencing practice of the Norwegian Supreme<br />
Court, <strong>fi</strong>nding that it did not follow its own principles, which caused a serious<br />
breach in legal reality. 238 Mogens Moe also noted that there were clear and serious differences<br />
between sentencing of the various judges, 239 and Göran Elwin argued that the<br />
traditional legal scholarship masked many relevant aspects of judicial decision-making<br />
in criminal cases. 240 The critical arguments followed the notion concerning the gap between<br />
law in books and law in action. Although criminal adjudication was often thought<br />
<strong>to</strong> be different than civil law adjudication, the critical scholars noted the discretion in<br />
adjudication which in their opinion caused inequitable legal practice.<br />
The difference between theory and practice led the scholars <strong>to</strong> contemplate the<br />
ideological function of law. The critics argued that the gap between law in books and<br />
233 Åke Daun, Bengt Börjeson, Stig Åhs (eds.), Samhällsförändringar och brottslighet (S<strong>to</strong>ckholm: Tidens<br />
förlag – Folksam 1974), 7.<br />
234 See in general id.<br />
235 Aubert 1964, supra n. 42 at 70–96.<br />
236 Gunnar Olofsson, Status och dom i tra<strong>fi</strong>kmål ─ en beskrivning av 506 tra<strong>fi</strong>kbrottslingar jämte en analys<br />
av domsskillnaderna, särskilt med tanke på statusfak<strong>to</strong>rer (Lunds Universitet: Sociologiska Institutionen<br />
1965), 3–6, 49. Olofsson’s study was mostly based on Aubert’s work with a few references <strong>to</strong><br />
American literature.<br />
237 Gustav Malmer, Status och dom i tra<strong>fi</strong>kmål, SvJT 1971, 571–576. The study was signi<strong>fi</strong>cant in Finland,<br />
where Raimo Blom referred <strong>to</strong> it frequently in his studies on the impact of social status in the criminal<br />
process.<br />
238 Johs. Andenæs & Ragnar Hauge, Uaktsomt drap, NTfK 1966, 24–25, 28.<br />
239 Mogens Moe, Milde og strenge højesteretsdommere, NTfK 1970, 169.<br />
240 Göran Elwin, Några frågor angående lagtillämpning och domskrivning i straffrätten, 250–251, in<br />
Festskrift till Per Olof Ekelöf (S<strong>to</strong>ckholm: P.A. Nordstedt & Söners förlag 1972), 224–251.<br />
204
law in action was maintained by myths and ideologies which laid the basis for the criminal<br />
system. 241 The of<strong>fi</strong>cial “myths”, for instance, gave an unrealistically humane and<br />
ef<strong>fi</strong>cient image of the prisons although the reality was very different. 242 Dag Vic<strong>to</strong>r thus<br />
argued that criminal politics should be studied as a part of society in order <strong>to</strong> avoid the<br />
myths and conservative ideology. 243 The general atmosphere among the radical left and<br />
progressive social circles was against the traditional social institutions. With the help of<br />
the critical scholarship, critical legal scholars sought <strong>to</strong> point out that there was a disparity<br />
between the of<strong>fi</strong>cial and the actual position.<br />
What was then needed, according <strong>to</strong> the critical scholars, was a <strong>to</strong>tal reform of the<br />
criminal system. As noted, there was widespread skepticism about the prison system, 244<br />
which, in accordance with Foucauldian his<strong>to</strong>ry, was considered <strong>to</strong> protect the prevailing<br />
capitalist ideology. 245 The critical scholars investigated its various aspects in order <strong>to</strong><br />
demonstrate the flaws in the system. Prison sentences of indeterminate duration were<br />
widely criticized because they were not good for general deterrence, against the rehabilitative<br />
ideal, and caused uncertainty. 246 In addition, the reformers often argued that short<br />
prison sentences could be replaced by <strong>fi</strong>nes because they had been proved better in resocializing<br />
the criminals. 247 In general, the inef<strong>fi</strong>ciency of the criminal justice system<br />
was widely acknowledged, and scholars contemplated ways <strong>to</strong> improve it. Common<br />
themes were decriminalization of traditional crimes and criminalization of modern<br />
crimes and <strong>fi</strong>nding a balance between the penalties imposed on the various crimes. 248<br />
The critical opinion was that the modern system of criminal justice did not conform <strong>to</strong><br />
social standards, but was conservative and inequitable. The contemporary social standards<br />
were, of course, de<strong>fi</strong>ned by the critical scholars who nevertheless argued that they<br />
had revealed the ideology behind the system.<br />
Stig Edling and Göran Elwin, who contributed signi<strong>fi</strong>cantly <strong>to</strong> the development of<br />
sociology of law and critical criminal law scholarship, also stressed the conservative<br />
and outmoded nature of the criminal system in their comprehensive analysis of the of<strong>fi</strong>-<br />
241 Stig Edling & Göran Elwing (eds.), Samhällskontroll och mytbildning: Åtta inlägg om nordisk<br />
kontrolpolitik (S<strong>to</strong>ckholm: Wahlström & Widstrand 1972), 5 [foreword].<br />
242 Odd Wormnæs, Om myter och mytbildning i kriminalpolitiken, 10–19, in Edling & Elwing (ed.) 1972,<br />
supra n. 241 at 9–33.<br />
243 Dag Vic<strong>to</strong>r, Vilka myter får vi slåss mot i framtiden? 106–109, in Edling & Elwin (ed.) 1972, supra n.<br />
241 at 106–115.<br />
244 See Vilhelm Aubert, Forskning om almenprævention, 10–13, in Møller Nielsen (ed.) 1970, supra n. 52<br />
at 5–24.<br />
245 Thomas Mathiesen, Fängelseväsendets ideologi 1600─1970, 42, 53–57, in Edling & Elwin (ed.) 1972,<br />
supra n. 241 at 34–57.<br />
246 Göran Elwin, Är tidsobestämda straff ändamålsenliga? SvJT 1972, 139–142; Bent Unmack Larsen,<br />
Strafferettens forfald: Bemærkninger til straffelovrådets forslag om de strafferetlige særforanstaltninger,<br />
Juristen 1973, 122, 124–126, 128.<br />
247 Anders Bratholm, Bør adgangen til å anvende bøtestraff utvides? Lov og rett 1967, 193–216; Erland<br />
Aspelin, Böter i stället för frihetsstraff, NTfK 1973, 53–72; Erland Aspelin, Det korta frihetsstraffet under<br />
debatt, SvJT 1974, 532–538.<br />
248 Johs. Andenæs, Kriminalitet, kriminologi og strafferett ved inngangen til 1970-årene, Juristen 1970,<br />
469–477; Mogens Moe, Erstatning, afgifter og andre ikke-pønale retsfølger som alternativer til bødestraf:<br />
kriminalpolitiske synspunkter, NTfK 1974, 224–235; Erland Aspelin, Utvecklingslinjer i svensk kriminalpolitik<br />
efter brottsbalkens införande, NTfK 1975, 97–122.<br />
205
cial report on the prison reform. 249 They analyzed the political composition of the committee<br />
and its memorandum in detail, concluding that the proposed reform would not<br />
change the system of punishment as expected, would maintain the conservative nature<br />
of the prison institution and the uncertainty and inequality of law, and contribute <strong>to</strong> the<br />
myths of the ef<strong>fi</strong>ciency and appropriateness of the modern system. The analysis reflected<br />
both the realistic, sociological and political analysis of criminal law and the thoroughgoing<br />
reforms the critical scholars often stressed.<br />
The critical scholars also tackled the problem of juvenile delinquency. Mathiesen<br />
criticized the juvenile detention centers for anti-socializing and stigmatizing impacts, 250<br />
and Bratholm argued that the juvenile delinquency system should be reformed in accordance<br />
with the general trends by emphasizing humanity, rehabilitation, and general<br />
deterrence. 251 Ulla Bondeson conducted an empirical and multi-disciplinary research<br />
study on the community of the inmates within correctional centers, particularly dealing<br />
with juvenile delinquents. She concluded that the treatment within the centers and the<br />
ideology of individual prevention had failed. 252 By emphasizing universal arguments in<br />
studies on particular subjects, the critical scholars sought <strong>to</strong> point out the fundamental<br />
flaws of the criminal law system.<br />
Since the ultimate target was the system of criminal law, an important <strong>to</strong>pic was<br />
the purpose and function of criminal punishment. And since the alternative scholars<br />
were against the traditional system and for the reformist agenda, the argument was that<br />
criminal law ought <strong>to</strong> be based on general deterrence. According <strong>to</strong> the general opinion,<br />
it would treat criminals equally, be certain, diminish harsh penalties, provide better opportunities<br />
for re-socialization and rehabilitation, and educate people <strong>to</strong> avoid criminal<br />
behavior. 253 Not everybody was, of course, straightforwardly optimistic about general<br />
deterrence. It was, for instance, argued that the criminal system should be based on economic<br />
theory. 254 For the critical scholars, the concern was the fact that general deterrence<br />
often raised the level of punishment. Nils Christie noted this, calling for more<br />
research on the impact of general deterrence. 255 Andenæs, the most prominent spokesman<br />
for general deterrence, argued on the other hand that it was the most appropriate<br />
basis for criminal law. 256<br />
249 Stig Edling & Göran Elwing, Obduktion av en död utredning: Om förslaget till ny fängelselag (S<strong>to</strong>ckholm:<br />
Wahlström & Widstrand 1972).<br />
250 Thomas Mathiesen, Bør ungdomsarrest innføres? Lov og rett 1969, 228–238.<br />
251 Anders Bratholm, De strafferettslige reaksjoner mot unge lovovertredere, 149–150, in Andenæs; Bratholm;<br />
Christie 1970, supra n. 205 at 138–151.<br />
252 Ulla Bondeson, Fången i fångsamhället: Socialisationsprocesser vid ungdomsvårdsskola, ungdomsfängelse,<br />
fängelse och internering (Malmö: P. A. Nordstedt & Söners förlag 1974), 560.<br />
253 Hauge 1996, supra n. 222 at 265–270, 300–303.<br />
254 Göran Skogh, Analys av allmänpreventionen med utgångspunkt från ekonomisk beslutsteori, NTfK<br />
1972, 296–301.<br />
255 Nils Christie, Forsking om individualprevensjon kontra almenprevensjon, Lov og rett 1971, 50, 54,<br />
57–58.<br />
256 Johs. Andenæs, Forsking om individualprevensjon og almenprevensjon: Noen kommentarer til professor<br />
Christies artikkel, Lov og rett 1971, 61–64, 69.<br />
206
The difference of opinion followed from the difference in perspective. Although<br />
they were fundamentally on the same side, Christie had more social perspective on the<br />
issue at least partly because of his sociological education. Thus, he argued that law<br />
alone could not decrease crime, but it could contribute <strong>to</strong> social structures that would. 257<br />
Elwin, on the other hand, encouraged more nuanced discussion on general deterrence.<br />
He thought that sometimes it might function merely as an ideology, hiding the real<br />
causes of criminalization, such as was the case with property crime, and as an ideology<br />
it also legitimized harsh punishments. 258 Since the common catchphrase of the time was<br />
that social policy was the best criminal policy, the more critical the scholar was, the<br />
more emphasis he or she placed on the social structures. Although the general trend was<br />
<strong>to</strong>wards general deterrence, the scholars had differing conceptions about it and emphasized<br />
different aspects of it.<br />
In any event, Andenæs’s faith did not fade as the 1970s went on. In 1974, he published<br />
two collections of his articles advocating general deterrence. 259 He argued that it<br />
deterred, built morality, created general law-abiding behavior, and could thus form the<br />
basis for both legislation and sentencing practice. 260 One of his most powerful arguments,<br />
covering a wide area of criminal law, was that “[p]unishment on the basis of<br />
general prevention is ethically defensible, both in legislation and sentencing, if the penalty<br />
is in reasonable proportion <strong>to</strong> the gravity of the offence and does not violate the<br />
principle of equality before the law.” 261 And even in 1977 as the general enthusiasm<br />
faded, Andenæs supported general deterrence by noting that there was now more research<br />
on the <strong>to</strong>pic which had increased knowledge of it and discouraged any radical<br />
arguments in one direction or another. 262<br />
General deterrence was one of the most important aspects of the alternative criminal<br />
law scholarship, and the policies in this regard often changed <strong>to</strong> a certain extent in<br />
favor of it. It was a fundamental principle which, according <strong>to</strong> many alternative scholars,<br />
could function as a guide-line directing the criminal system in a more just direction.<br />
The effects of the treatment ideology and the inequalities in the system were felt as de<strong>fi</strong>ciencies<br />
in need of correction, and the critical scholars were in the front line in pro-<br />
257 Nils Christie, Strafferett og samfunnsstruktur, NTfK 1973, 1–2, 20.<br />
258 Göran Elwin, Teser om allmänpreventionen, 92–93, 95–102, in Edling & Elwin (ed.) 1972, supra n.<br />
241 at 85–105.<br />
259 Johs. Andenæs, Straff og lovlydighet: Artikkelsamling (Oslo: Universitetsforlaget 1974); Johs. Andenæs,<br />
Punishment and Deterrence (Ann Arbor: The University of Michigan Press 1974) [later referred <strong>to</strong><br />
as Andenæs 1974(a)]. The <strong>fi</strong>rst was a collection of seven Norwegian articles, and the latter was a collection<br />
of six articles in English. The books were not identical, though very similar, and four of the articles<br />
were more or less the same, i.e., translations or modi<strong>fi</strong>ed versions.<br />
260 Andenæs 1974(a), supra n. 259 at 8, 41–44, 112.<br />
261 Id. at 147.<br />
262 Johs. Andenæs, Nyere forskning om almenprevensjonen ─ status og kommentar, NTfK 1977, 95–97.<br />
Andenæs noted that in Scandinavia the concept of general deterrence referred both <strong>to</strong> preventive and<br />
moral-building aspects, whereas in the United States the concept normally referred only <strong>to</strong> preventive<br />
aspects. (Id. at 64–65.) There seems <strong>to</strong> have been a difference in legal cultures in the regard. The moralbuilding<br />
aspect was less important in the United States because law there is considered <strong>to</strong> be more about<br />
conflict resolving and of a pragmatic nature, whereas in Scandinavia law is also considered <strong>to</strong> include<br />
aspects of general policy.<br />
207
moting the reform. General deterrence was also a general trend in criminal policy, not<br />
simply a matter for the alternative scholars. However, as the enthusiasm of the 1960s<br />
and early 1970s waned and the scholarship expanded, people became more moderate<br />
and less eager for radical reform.<br />
Whether the interest of a legal scholar regarding criminal policy was criminal law<br />
or other social measures, the purpose of the alternative scholarship was also <strong>to</strong> observe<br />
crime as a consequence of social relations and structures. Scandinavian critical criminologists<br />
were not particularly enthusiastic about the criminal system of the socialist<br />
countries because they normally held that an authoritarian society was <strong>to</strong>o great a price<br />
<strong>to</strong> pay for the diminished criminality. 263 This did not mean, however, that the literature<br />
lacked Marxist rhe<strong>to</strong>ric. Many critical legal scholars in the <strong>fi</strong>eld approached crime from<br />
the perspective of class conflict. As we saw, Alvar Nelson criticized criminal law for its<br />
class bias, 264 and Aubert argued that criminal law often preserved the dominant social<br />
ideology. 265 Furthermore, as we saw, it was argued that sentencing was in fact sometimes<br />
biased against the lower social classes. Although there was no glori<strong>fi</strong>cation of<br />
socialism, the general rhe<strong>to</strong>ric of the criticism stressed the class character of modern<br />
society and the social inequalities that followed.<br />
The general rhe<strong>to</strong>ric of critical legal scholarship was thus present in criminal law.<br />
In Uppsala, for instance, a discussion group on matters of criminal law and policy was<br />
established in the late 1960s. Professor Alvar Nelson led the group, which consisted of<br />
the young scholars Nils Jareborg, Göran Elwin, Sten Heckscher, and Dag Vic<strong>to</strong>r, who<br />
discussed the need for openness and change in legal concepts. The point was <strong>to</strong> see that<br />
legal policy and legal theory could not be unders<strong>to</strong>od separately, since the theory needed<br />
policy considerations and policy needed theories. 266 Students and would-be-scholars<br />
debated the nature and origins of legal concepts and the need for political research in<br />
criminal law. Alternative and critical legal scholarship also grew within the universities<br />
among eager students and in study circles in which the students could read theoretical<br />
literature and discuss the state of law and scholarship.<br />
One of the young legal scholars who was active both in Marxist legal scholarship<br />
and criminal law scholarship was Göran Elwin who, with Sten Hecksher and Alvar Nelson,<br />
wrote a textbook on criminal law that was meant <strong>to</strong> provide a comprehensive account<br />
of criminal policy. The perspective was naturally critical, and the authors condemned<br />
Swedish criminal policy overall. For example, they argued that criminality was<br />
more common than the of<strong>fi</strong>cial “myth” claimed, incarceration was an ineffective mode<br />
263 Johs. Andenæs, Anders Bratholm, Nils Christie, Inntryk fra kriminologi og strafferett i Sovjetunionen:<br />
Rapport fra en studietur, NTfK 1968, 112–114, 120–122.<br />
264 Nelson 1967, supra n. 201; Holger Romander & Alvar Nelson, Är brottsbalken redan omodern? NTfK<br />
1970, 217–219 [Nelson].<br />
265 Vilhelm Aubert, Om klasselovgivning, 62–72, in Bratholm & Sundby (ed.) 1976, supra n. 38 at 61–88.<br />
266 Dag Vic<strong>to</strong>r, 1968 och “den nya Uppsalaskolan”, 174–177, in Modéer & Sunnqvist (ed.) 2010, supra n.<br />
105 at 171–183.<br />
208
of punishment, and that treatment ideology did not work. 267 The book reflected the<br />
scholarly orientation of the authors. It was politically oriented <strong>to</strong> the extent that a reviewer<br />
noted that it should have been called “A critique of Swedish criminal policy”,<br />
and that it was mostly one-sided. 268 The adverse criticism did not seem <strong>to</strong> bother the<br />
authors, since the book was revised four years later with a more pronounced Marxist<br />
<strong>to</strong>ne. Now the authors stressed the connection between criminal policy, and not only<br />
social structures, but also capitalism, which was seen as the origin of the modern criminal<br />
policy. In addition, the attitude <strong>to</strong>ward general deterrence was more critical than it<br />
had been four years earlier. 269 The Marxist turn of the early 1970s was also obvious in<br />
the criminal law scholarship. Furthermore, the purpose of the book was <strong>to</strong> show that<br />
crime and criminal policy emanated from society and their particular forms reflected the<br />
power structures in society. The sophistication in critical theories made the theoretical<br />
basis of the book clearer and highlighted the points of the book.<br />
The construction of a comprehensive social theory of crime and the methods of<br />
controlling it was an important theme in the alternative criminal law literature of the<br />
1970s. Thomas Mathiesen, who was an active scholar and a participant in the reform<br />
associations, worked on a theory of a society without prisons. In his The Politics of Abolition,<br />
published in 1974, he laid out its general outline, arguing that criminal policy was<br />
largely unreasonable and unjust and was thus <strong>to</strong> be mostly abolished. This was <strong>to</strong> be<br />
achieved through continuous struggle and partial reform, so-called negative reforms,<br />
which unmasked the unjust institutions and abolished them piece by piece. 270 For<br />
Mathiesen, the continuous scholarship on revealing the legitimizing façade of the criminal<br />
justice institutions and the persistent dismantling of the system made the revolution.<br />
Abolitionism was indeed a radical argument, but Mathiesen managed <strong>to</strong> construct it in a<br />
way that made it seem like a realistic possibility. Whether its purpose was <strong>to</strong> produce<br />
reform or merely raise discussion, abolitionism was the most radical expression of the<br />
reformism of alternative legal scholarship. It was also a demonstration of a comprehensive<br />
strategy and a social theory of crime.<br />
Nils Christie also worked on a social theory of crime. His starting-point was that<br />
crime was fundamentally linked <strong>to</strong> society, arguing that the contemporary society had<br />
267 Göran Elwin, Sten Heckscher, Alvar Nelson, Den första stenen: Studiebok i kriminalpolitik (S<strong>to</strong>ckholm:<br />
Tidens förlag 1971), 214–230.<br />
268 Stina Holmberg, Litteratur [Den första stenen], NTfK 1973, 181, 184, 186, 189–190. Holmberg mostly<br />
criticized those parts of the book that were written by Elwin.<br />
269 Göran Elwin, Sten Heckscher, Alvar Nelson, Den första stenen: Studiebok i kriminalpolitik (Fjärde<br />
omarbetade upplagan, S<strong>to</strong>ckholm: Tidens förlag 1975). Compare, for example, the <strong>fi</strong>rst edition, supra n.<br />
264 at 43–91 with the revised edition at 41–89. Note that the Lefebvre quote in the <strong>fi</strong>rst edition, at 43 is<br />
changed <strong>to</strong> a Marx quote in the revised edition, at 41. For a more critical perspective on general deterrence,<br />
see revised edition, at 235–259.<br />
270 Mathiesen 1974, supra n. 8 at 9–10, 13–28, 198–212. The book consisted of two previous books published<br />
in Norwegian. Det uferdige (The Un<strong>fi</strong>nished) was published in 1971, in which he elaborated his<br />
theory of change. Pressgruppe og samfunnsstruktur (Pressure Group and Social Structure) was published<br />
in 1973, and here he depicted the activities of KROM. Elements of abolition were thus the fundamental<br />
theory of change, theory of research and research in practice, practical actions, short term reforms, and<br />
the ultimate goal that was never fully <strong>to</strong> come.<br />
209
increased wealth and distanced people from each other, which created the basis of<br />
common criminality, and hence of<strong>fi</strong>cial crime control had become signi<strong>fi</strong>cant. Crime<br />
was a social phenomenon de<strong>fi</strong>ned by the powerful classes of society through legislation.<br />
He then de<strong>fi</strong>ned conditions for a closely integrated society in which the administration<br />
of criminal justice and the system of criminal law would be brought closer <strong>to</strong> the people<br />
actually involved in the issue. The standards of a good criminal system were that it be<br />
approved by the people, simple, open, and clear. It was also supposed <strong>to</strong> cause as little<br />
suffering as possible, and people should be able <strong>to</strong> contribute <strong>to</strong> it as much as possible.<br />
271 The connection between the general criticism of capitalism and massconsumption<br />
was reflected in Christie’s critique of the faceless, impersonal society,<br />
which had also created the a<strong>to</strong>mistic law. He therefore sought <strong>to</strong> reform the system of<br />
crime control through changing the nature of the society and thus constructing a new<br />
legal system that would be accessible <strong>to</strong> and understandable by lay people.<br />
Besides commenting on the common themes, Christie was also adding some new<br />
elements <strong>to</strong> his work. He argued that culture, including legal culture, had professionalized<br />
along the development of faceless society. This had turned people in<strong>to</strong> roles, which<br />
had dis<strong>to</strong>rted the legal process. Hence there was a need for a victim-oriented process<br />
that would pay attention <strong>to</strong> the needs of the victim of the crime. 272 Much of the criminal<br />
legal literature had revolved around the criminal, but the perspective of the victim was<br />
not forgotten. The purpose of the victim approach was also <strong>to</strong> create a closer relationship<br />
between people and let the parties take more charge in the process. The transition<br />
from a systemic functional approach <strong>to</strong> a humane approach was also evident.<br />
The common theme in the theories was <strong>to</strong> create a system of criminal law that was<br />
equitable and just. Critical scholars argued that most registered criminals were young,<br />
male, and from the lowest social classes, but there also was a major problem of modern<br />
economic crime that was not dealt with appropriately. 273 The people of lower class were<br />
simply more prone <strong>to</strong> be caught in the machinery of criminal control. 274 Therefore, education<br />
was often considered more ef<strong>fi</strong>cient than harsh punishment. 275 All the main<br />
themes relating <strong>to</strong> the general concern were gathered in Christie’s book, which was a<br />
collection of articles from two and a half decades of his career. The main message of the<br />
book was, as its title, Like Most of the People (Som folk flest), suggested, <strong>to</strong> understand<br />
crime in its social context. Criminals were usually not some kind of monster, Christie<br />
argued, but people created by their interactivity with society. 276 Since the purpose was<br />
<strong>to</strong> see crime as a reaction <strong>to</strong> social circumstances, an approach <strong>to</strong> social psychology and<br />
sociology was important in understanding crime and creating a system that would <strong>fi</strong>ght<br />
against crime best and be just in responding <strong>to</strong> it.<br />
271 Nils Christie, Hvor tett et samfunn? (Oslo: Universitetsforlaget 1975), 15, 38, 47–48, 64–72, 162–224.<br />
272 Nils Christie, Konflikt som eiendom, TfR 1977, p. 113─132<br />
273 Thomas Mathiesen, Kriminalitet, straff og samfunn (Oslo: Aschehoung & Co. 1974), 15–17.<br />
274 Christie 1975, supra n. 271 at 99.<br />
275 Agnete Weis Bentzon, Tugt, vold og voldtækt i Grønland, NTfK 1977, 27.<br />
276 Nils Christie, Som folk flest: Artikler (Oslo: Universitetsforlaget 1978).<br />
210
Christies’s book was described as a cross-section of Norwegian postwar criminology.<br />
277 Indeed, it was. Criminology had come a long way during the previous two decades<br />
and the scholars had participated in various kinds of discussions. The main points<br />
of the critical scholars were that crime was common in society, it mostly originated in<br />
social structures, the administration of criminal justice was selective in terms of social<br />
classes, and that treatment and harsh penalties were ineffective in preventing it. The<br />
alternative scholars on criminal law participated in the contemporary debates, modi<strong>fi</strong>ed<br />
the basis of scholarship, and struggled against the traditional scholarship. The emphasis<br />
on the connection between scholarship and politics and on the cross-disciplinary approach<br />
was common methods that furthered the alternative cause.<br />
4.3 Criticism of criminal law in perspective<br />
So far, alternative criminal law scholarship has mostly been about the social nature of<br />
crime, and about criminological research and its political signi<strong>fi</strong>cance. The focus of critical<br />
scholarship was indeed the endeavor <strong>to</strong> understand the social causes of crime and<br />
the activity of changing the system. However, the scholars also contemplated matters<br />
less directly relating <strong>to</strong> the political consequences of their scholarship. I will now briefly<br />
discuss a couple of examples of criticism of the concepts of criminal law and criminal<br />
law scholarship in order <strong>to</strong> clarify the connection between critical legal scholarship and<br />
criminal law.<br />
As was often the case in general jurisprudence, criticism was targeted at Alf<br />
Ross’s concepts. According <strong>to</strong> Ross, the concepts of general and special deterrence were<br />
useless in de<strong>fi</strong>ning the basis of criminal law because of their ambiguity and because<br />
they were based on social interests. Whether punishments served a social function, he<br />
argued, was an empirical question. Therefore, prevention was the goal and retribution<br />
the reason for punishment. 278 Ross’s realism, in which concepts had <strong>to</strong> have a speci<strong>fi</strong>c<br />
point of reference in empirical reality, did not please the scholars whose jurisprudential<br />
views were more sociologically oriented. Andenæs criticized Ross for ignoring the fact<br />
that criminal law might have various reasons and goals, 279 and Christie argued that<br />
Ross’s theory would lead <strong>to</strong> unreasonable consequences and disproportionately harsh<br />
277 Hauge 1979, supra n. 199 at 166. Hauge also wrote that many of Christie’s ideas were executed in<br />
Norwegian criminal policy during the recent decade, which was both satisfying and terrifying. It was<br />
satisfying because criminal policy had moved in the so-called humane direction. It was terrifying because<br />
some of the ideas were misused. For example, general prevention had become an important part of the<br />
whole criminal system, although Christie was critical of it. (Id. at 165–166.) An interesting question,<br />
although beyond the scope of this research, would be <strong>to</strong> ask about the reasons for the changes in criminal<br />
policy. It seems that the association for criminal reform and the research conducted in more or less close<br />
connection with it had their influence on political decision-making.<br />
278 Alf Ross, “Straffens formål”, TfR 1969, 409–410, 423–424.<br />
279 Johs. Andenæs, “Straffens formål”: Et tilsvar til professor Alf Ross, TfR 1971, 153–155.<br />
211
punishments because it did not pay attention <strong>to</strong> the social influence of criminal law. 280<br />
Ross, nonetheless, maintained his views that the question of the motives and goals of<br />
criminal law were categorically of different character 281 and that the critical scholars<br />
had over-emphasized the role of politics and the ill consequences of special deterrence.<br />
282<br />
The problem between the new and the traditional criminal law scholarship related<br />
<strong>to</strong> the more general problem between realism and the “new realism”, which placed values<br />
and policies at the center of legal analysis. Ross was interested in the logical connections<br />
between problems and concepts, whereas the alternative and critical scholars<br />
were more interested in the social and political values and consequences of the legal<br />
concepts. Since they regarded law as inherently pertaining <strong>to</strong> politics, they opined that<br />
legal concepts should not be unders<strong>to</strong>od without considering their political motives and<br />
consequences. Furthermore, Ross’s theory excluded the possibility of general deterrence<br />
being the basis of criminal law, which was a central argument of the alternative legal<br />
scholarship. The general problem was also seen in Nils Jareborg’s philosophical analysis<br />
of values in law, in which he argued that values always reflected the general theoretical<br />
background of the analysis. 283 According <strong>to</strong> the new realism, values were neither<br />
true nor false but conformed or did not conform <strong>to</strong> a theory or an ideology.<br />
A more comprehensive criticism of traditional criminal law scholarship was Nils<br />
Kristian Sunby’s critical review of Johannes Andenæs’s textbook on criminal law. The<br />
book, published in 1974, was intended <strong>to</strong> update the criminal law education. 284 According<br />
<strong>to</strong> Sundby, however, Andenæs did not pay due attention <strong>to</strong> all of the relevant changes<br />
of the past couple of decades although it was an improvement over the older books.<br />
Especially problematic were the sections regarding criminal psychiatry and criminology.<br />
In addition, a few signi<strong>fi</strong>cant <strong>to</strong>pics such as the prison institution were neglected,<br />
and the effects of punishment were dealt with in a highly abstract manner with a onesided<br />
over-emphasis on general deterrence. Moreover, Andenæs had not considered the<br />
class character of criminal law and had also neglected all consideration of values and<br />
scholarship. 285<br />
Andenæs’s alternative view with Sundby’s more critical view collided in this controversy.<br />
Two points are obvious in Sundby’s critique. First, even if Andenæs was a<br />
reformist scholar who endorsed the sociological view on criminal law, his text-book<br />
was a compromise between alternative and traditional views, and therefore did not take<br />
the social aspect far enough. Second, Andenæs did not consider values. This was one of<br />
280 Nils Christie, Ross om straff, TfR 1975, 357–361.<br />
281 Alf Ross, Endnu en gang “straffens formål”: Et gensvar til professor Johs. Andenæs, TfR 1971, 391–<br />
396; Alf Ross, Straffens formål ─ modkritik og replik, TfR 1977, 401–405.<br />
282 Alf Ross, Christie om straffens negative individualpræventive virkning, TfR 1978, 482–489.<br />
283 Nils Jareborg, Värderingar (S<strong>to</strong>ckholm: P.A. Nordstedt & Söners förlag 1975).<br />
284 Johs. Andenæs, Alminnelig strafferett (Oslo: Universitetsforlaget 1974).<br />
285 Nils Kristian Sundby, Strafferetten og dens begrensninger, Lov og rett 1976, 53–56, 63–76, 79–91.<br />
Sundby justi<strong>fi</strong>ed his critique on two grounds. First, since Andenæs had monopolistic authority over the<br />
scholarship, his views had <strong>to</strong> be critically reviewed. Second, the practicality of the abstract theory of<br />
critical legal scholarship had <strong>to</strong> be pointed out. (Id. at 51–52.)<br />
212
the main points on which the critical legal scholarship differed from the tradition, and<br />
from alternative scholarship as well. The critical legal scholars claimed that all law and<br />
legal scholarship, either explicitly or implicitly, was influenced by values, and therefore<br />
they had <strong>to</strong> be taken in<strong>to</strong> account in legal studies. Sundby also emphasized the class<br />
character of law, whereas Andenæs’ perspective on society was less conflicted.<br />
Sundby’s critique thus brought up the difference between alternative and critical legal<br />
scholarship. Whereas alternative scholarship balanced between tradition and new insights,<br />
critical scholarship endorsed a completely new view of law and legal scholarship.<br />
4.4 Concluding remarks<br />
The basis of alternative legal scholarship on criminal law was formed in the early 1960s<br />
from sociology of law. Studies on the social reality of crime suggested that crime could<br />
be a more complex social phenomenon than had previously been assumed. Research<br />
approaching crime as a social phenomenon became more common during the sixties,<br />
and from the middle of the decade onwards, Scandinavian scholars cooperated on research<br />
and participated in associations <strong>to</strong> change the criminal law. Alternative criminal<br />
legal scholarship considered crime as a reflection of social circumstances and power<br />
structures. There was also a more radical, Marxist movement in criminology but it was<br />
quite a marginal phenomenon. In general, alternative criminologists were not critical<br />
scholars, rather representing the opening up of legal scholarship <strong>to</strong>wards social science.<br />
In any event, some alternative legal scholars did stress the fact that criminal law was a<br />
product of class society and was thus related <strong>to</strong> the class conflict.<br />
The criticism of treatment ideology and the emphasis on certainty and equality in<br />
criminal law as well as on the reform of the law and the system of punishment were<br />
general social and political trends of the time and not just the business of the legal<br />
scholars. Nordic Countries did change their criminal policies following the alternative<br />
agenda in the late 1970s, 286 but the causes of the change are completely another matter.<br />
The scholarship obviously had some influence in this regard, but it is as obvious that it<br />
<strong>to</strong>o was influenced by the general critical atmosphere and the political demands of the<br />
left. Moreover, in the late 1970s, the alternative scholars began <strong>to</strong> criticize the neoclassical<br />
trend in criminal politics because it had been used <strong>to</strong> increase the punishments<br />
and because its effects on reality had not been taken in<strong>to</strong> consideration. 287 Reforms are<br />
286 See, e.g., Annika Snare, Kursändring i nordisk kriminalpolitik, HfKJ 2/1979, 45–56.<br />
287 Ulla Bondeson, Vad är nytt i Nytt Straffsystem? Några kritiska synpunkter på nyklassisk straf<strong>fi</strong>loso<strong>fi</strong>,<br />
NTfK 1978, 121–146; Nils Christie, Ny-klassisismen i kriminalpolitikken, NTfK 1979, 5–20. Neoclassicism<br />
refers <strong>to</strong> the criminal policy by which the punishment is measured according <strong>to</strong> the severity of<br />
the crime, not according <strong>to</strong> the personality of the offender. In the latter half of the seventies, Nordic criminal<br />
policy turned <strong>to</strong>wards neo-classicism, particularly in Finland and Sweden, and <strong>to</strong> less extent in Norway<br />
and Denmark. (Hauge 1996, supra n. 222 at 315–318.)<br />
213
usually compromises between conflicting opinions, and that was also the problem in the<br />
1970s. Critical scholars were after a more humane criminal policy, and the effort succeeded<br />
<strong>to</strong> some extent.<br />
In many respects, alternative criminology and scholarship on criminal law reflected<br />
the general approach of critical legal scholarship. Even though views varied between<br />
scholars, the main points were often the same. Alternative legal scholarship endorsed<br />
the understanding that crime was a social phenomenon caused by social circumstances<br />
and de<strong>fi</strong>ned and conceptualized by law that reflected social power structures. Therefore,<br />
crime was <strong>to</strong> be seen in its social context, and scholars had <strong>to</strong> be aware of their political<br />
biases and values. Critical criminal law scholarship was thus also political scholarship<br />
which encouraged arguments about values. The emphasis on policies and value arguments,<br />
as well as the endorsement of cross-disciplinary research were both reflections of<br />
the changes in society and scholarship and methods in the academic struggle. Critical<br />
scholars sought <strong>to</strong> change the society, but they also pursued academic positions and<br />
power over scholarship.<br />
Criminal law scholarship also had close contacts with political practice, and the<br />
scholars participated actively in the associations for criminal reform. Their studies provided<br />
information for reform, but studies were also inspired by the efforts of the associations.<br />
In criminal law, thus, the contact between theory and practice was most apparent.<br />
This was obviously so because crime was a major part of society and criminal reform<br />
was an important social <strong>to</strong>pic in the critical atmosphere of the 1960s and 1970s.<br />
Many people, both politicians and social activists, were interested in crime. It thus provided<br />
a <strong>fi</strong>eld of research with a tremendous number of opportunities, a chance <strong>to</strong> develop<br />
new theories and methodologies, and a signi<strong>fi</strong>cant opportunity <strong>to</strong> participate in contemporary<br />
political debates.<br />
Both in the United States and Scandinavia, a critical criminology emerged in the<br />
1960s, observing crime as a social phenomenon and trying <strong>to</strong> change the contemporary<br />
system of the administration of criminal justice. The basic ideas were the same; the critical<br />
criminology tried <strong>to</strong> show that the system discriminated against the lower social<br />
classes, severe punishments were not effective in preventing crime, and the system constituted<br />
and protected social ideologies and the prevailing circumstances. The differences<br />
in detail followed the differences in the social circumstances. A major and interesting<br />
difference is, however, that Marxist criminology was stronger in the United<br />
States than in Scandinavia, even though Marxism had a stronger position in the critical<br />
legal scholarship in Scandinavia than in the United States in general. It would be interesting<br />
<strong>to</strong> delve deeper in<strong>to</strong> this question, but it seems that the strong position of Marxism<br />
in American criminology was a consequence of British influence and of the fact that<br />
the American criminologists were more theoretical than their Scandinavian colleagues,<br />
who also worked for the ministries of justice and for the reform organizations. Marxism<br />
was the backbone of Scandinavian criminology, but the scholars maintained a close<br />
connection between political practices and thus avoided extreme arguments, despite the<br />
emphasis on abolition.<br />
214
5 Alternative views on constitutional law, 1965─1979<br />
Legal scholars were naturally interested in many practical <strong>to</strong>pics, and on some occasions<br />
there were heated debates about some legal problem. In Finland especially, debate<br />
raged about the reform of the Constitution in the 1970s. In Scandinavia, however, the<br />
debates on constitutional law were not as intense. In Denmark, the constitution was reformed<br />
in the 1950s and in Sweden in the 1970s. These reforms did not provoke especially<br />
vehement debates among the legal scholars, although politically they were controversial.<br />
288 In Norway, the old Constitution of 1814 was still valid in the 1970s; in<br />
fact, it is still valid <strong>to</strong>day, but serious debates about the Constitution and its interpretation<br />
emerged in the 1960s and 1970s. 289 Therefore, in this section I will explore the<br />
Norwegian discussion on constitutional law in the 1960s and 1970s. I will concentrate<br />
on the discussion of judicial review and the constitutional protection of private property<br />
because these were the most controversial <strong>to</strong>pics and they illuminate the dimensions of<br />
critical legal scholarship.<br />
It seems that two things made constitutional law more controversial problem in<br />
Norway than in Sweden and Denmark. First and foremost, the Norwegian Supreme<br />
Court had in fact applied its powers of judicial review. In the 1960s and 1970s, no<br />
Scandinavian constitution had any explicit mentions of judicial review, but it had been<br />
approved in theory or in practice in each of the countries. Norway, however, was the<br />
only country where the Supreme Court had invalidated laws. 290 Thus, legal scholars<br />
contemplated the problem in the 1960s and 1970s. Second, Norwegian constitutional<br />
law revolved greatly around Carl August Fleischer, a professor of law and a controversialist<br />
who had quarrels with many of the prominent <strong>fi</strong>gures in the Norwegian academy,<br />
whom he accused of bad jurisprudence. 291 Fleischer developed a flexible constitutional<br />
theory which incorporated the social circumstances and made progressive and reformist<br />
interpretations possible. Thus, because of the different constitutional situation and because<br />
of the personality of Fleischer, the debates on constitutional law were more heated<br />
and critical in Norway than in Sweden and Denmark.<br />
The common opinion in Norway in the early 1960s approved judicial review and<br />
endorsed the independence of the judiciary. According <strong>to</strong> Eckhoff, judicial independence<br />
was a corners<strong>to</strong>ne of the legal system. Problems arose, however, as <strong>to</strong> the exact<br />
substance of this independence and the acceptable extent of judicial review because the<br />
288 The Swedish reform is analyzed in detail in Karl-Göran Algotsson, Medborgarrätten och regeringsformen:<br />
Debatten om grundläggande fri- och rättigheter i regeringsformen under 1970-talet (S<strong>to</strong>ckholm:<br />
Nordstedts 1987).<br />
289 See Herlitz 1966, supra n. 58 at 137–159.<br />
290 Nils Herlitz, Elements of Nordic Public Law (S<strong>to</strong>ckholm: P.A. Norstedt & Söners förlag 1969), 236–<br />
238.<br />
291<br />
For a biographical sketch of Fleischer, see<br />
http://snl.no/.nbl_biogra<strong>fi</strong>/Carl_August_Fleischer/utdypning (last visited 1.10.2012).<br />
215
impartiality of the courts was <strong>to</strong> be protected and guaranteed. 292 Although a major concern<br />
was <strong>to</strong> <strong>fi</strong>nd a balance between judicial review and impartiality, the fact that judicial<br />
practice reflected political currents was also acknowledged. 293 Disagreement arose as <strong>to</strong><br />
whether the Supreme Court was essentially a political or legal organ. On the basis of his<br />
his<strong>to</strong>rical researches, Jens Seip argued that the Supreme Court was a political institution<br />
and that the idea of neutral judicial decision-making was a mere myth. 294 Andenæs criticized<br />
Seip for not understanding the context of judicial decision-making which, Andenæs<br />
argued, was not political even if extra-legal fac<strong>to</strong>rs had a certain influence on<br />
it. 295 Seip responded that Andenæs represented the illusion of neutral legal reasoning<br />
and the arrogant attitude of legal scholars whenever a scholar of some other discipline<br />
tried <strong>to</strong> analyze law. 296 Andenæs replied once again that Seip had misunders<strong>to</strong>od his<br />
points on judicial interpretation. 297<br />
Contrasted were a legal perspective of balanced realism and a his<strong>to</strong>rian’s perspective<br />
of extreme realism. According <strong>to</strong> the former, shared by the majority of the legal<br />
profession in the 1960s, judicial decision-making was not formalistic logic but a multifaceted<br />
process in which many perspectives had <strong>to</strong> be taken in<strong>to</strong> account. It was nevertheless<br />
rational and rather legal than political. Seip, on the other hand, stressed the political<br />
context of the decisions and propounded a theory of radical realism in which judicial<br />
decision-making was rather political than legal, and in which the decisions were<br />
outcomes of political pressures rather than simply being influenced by them. Although<br />
supporting the sociological perspective in criminology, Andenæs was closer <strong>to</strong> the traditional<br />
legal scholarship than alternative legal scholarship in constitutional law. Despite<br />
his realistic notions, he supported the general notion that judicial decision-making was<br />
rational and not simply politics.<br />
The question over the political role of the Court brought up the problems regarding<br />
the nature of balanced realism in judicial decision-making. Although Seip’s arguments<br />
were unders<strong>to</strong>od <strong>to</strong> an extent, 298 they were also criticized for being over-statements because<br />
judicial discretion <strong>fi</strong>tted within the margins of the rule of law. 299 Anders Bratholm<br />
noted that the political biases of the judges occasionally decided legal cases but these<br />
were relatively rare, 300 and in a study on judicial behavior Andenæs and Kvamme concluded<br />
that it was dif<strong>fi</strong>cult <strong>to</strong> analyze the impact of extra-legal fac<strong>to</strong>rs on judicial deci-<br />
292 Torstein Eckhoff, Noen refleksjoner om doms<strong>to</strong>lenes uavhengighet, 109, 123–131, 142–46, in<br />
Festskrift tillägnad Karl Olivecrona (S<strong>to</strong>ckholm: P.A. Norstedt & Söner 1964), 109–147.<br />
293 Castberg 1964, supra n. 58 at 130–134.<br />
294 Jens Arup Seip, Den norske høyesterett som politisk organ, Lov og rett 1965, 1–2, 15–16. The article<br />
was originally published in 1964 in His<strong>to</strong>risk tidsskrift.<br />
295 Andenæs 1965, supra n. 58 at 23–26; Johs. Andenæs, Grunnlov og menneskerettigheter gjennom 150<br />
år, Lov og rett 1965, 51.<br />
296 Jens Arup Seip, Jus og politikk, Lov og rett 1965, 399–402, 420–423.<br />
297 Johs. Andenæs, Jus og politikk, Lov og rett 1965, 458.<br />
298 Henry Østlid, Rettspleie og politikk, Lov og rett 1966, 118–127. Østlid was a judge who wrote that he<br />
was stunned by the response of the legal profession <strong>to</strong>ward Seip’s article because he found it very interesting.<br />
(Id. at 122.)<br />
299 Terje Wold, Doms<strong>to</strong>lenes deltakelse i juristforvaltningen, Lov og rett 1964, 394–396.<br />
300 Bratholm 1966, supra n. 62 at 112.<br />
216
sions but they obviously had some influence. 301 Moreover, according <strong>to</strong> Eckhoff the<br />
majority of the legal profession felt positively about the fact that judges made law. 302<br />
Legal scholars were irritated by the extreme realism of Seip and the fact that a his<strong>to</strong>rian<br />
intruded in<strong>to</strong> their businesses. The question was also about the use of social science in<br />
legal studies over which there was no unanimous agreement.<br />
The problem was how far extra-legal fac<strong>to</strong>rs could influence constitutional interpretation<br />
without making it irrational and biased or in<strong>to</strong> politics and without violating<br />
the fundamental principles of the Constitution and the rule of law. Hardly anyone supported<br />
extreme formalism on the issue, but the majority opined that legal reasoning and<br />
interpretation could occur within reasonable boundaries set by the law. The problem<br />
was pressing regarding not only legal theory but also practice because it had very thoroughgoing<br />
implications for actual cases. One of these problems was the constitutional<br />
protection of private property and its social and political consequences.<br />
Constitutional protection of private property rights was a serious point of controversy<br />
in Norwegian constitutional law in the 1960s. The most prominent spokesman for<br />
a flexible interpretation of the Constitution was Fleischer, who elaborated a theory of<br />
constitutional interpretation that would make the Constitution in<strong>to</strong> a progressive social<br />
force. He claimed that property rights were merely standards, and the legisla<strong>to</strong>r could<br />
regulate the use of property within reasonable limits without violating the constitution.<br />
303 His views were criticized for turning questions of constitutional law in<strong>to</strong> questions<br />
of values and for violating legal certainty. 304 The more traditional scholars argued<br />
that constitutional law required clear, strict, and certain boundaries so that the rule of<br />
law could be guaranteed. 305 Fleischer, however, also argued that, rightly unders<strong>to</strong>od, his<br />
theory was important <strong>to</strong> social development, 306 but he was again criticized for bringing<br />
economic arguments in<strong>to</strong> legal reasoning. 307 To Fleischer, however, the problem of<br />
compensation in cases in which regulation caused damages was not as unequivocal as<br />
his critics argued. 308<br />
There was a clear conflict between conception of property, interpretation of the<br />
constitution, and legal argumentation. Constitutional law was changing between the<br />
dialectic of the traditional view and the new critical view. The critical view that<br />
Fleischer represented saw property as a social thing, not absolutely protected against the<br />
301 Johs. Andenæs & Helge Kvamme, Reasons for Difference of Opinion on Questions of Law: An Analysis<br />
of Dissenting Opinions in the Norwegian Supreme Court, 15 Scandinavian Studies in Law 29, 56<br />
(1971).<br />
302 Eckhoff 1971, supra n. 91 at 193, 195.<br />
303 Carl August Fleischer, Tomtemarkedet som juridisk problem, Lov og rett 1965, 348–350.<br />
304 Olaf Trampe Kindt, Ekspropriasjonsartede rådighetsinnskrenkninger over fast eiendom, Lov og rett<br />
1967, 57–60.<br />
305 Id. at 59; Per Odberg, Grunnlovens §§ 97 og 105, Lov og rett 1967, 232–236.<br />
306 Carl August Fleischer, Hva er en ekspropriasjonsartet rådighetsinnskrenkning over fast eiendom? Lov<br />
og rett 1967, 257–261, 263–265, 267.<br />
307 Olaf Trampe Kindt, Ekspropriasjonsartede rådighetsinnskrenkninger over fast eiendom, Lov og rett<br />
1968, 79–80.<br />
308 Carl August Fleischer, Friluftslovens § 31 og andre bestemmelser som viser til ellers gjeldende erstatningsregler,<br />
Lov og rett 1968, 324–326, n. 7.<br />
217
measures of society for the sake of the public good. The critical conception of property<br />
did not completely overthrow the traditional conception, but rather adopted a social perspective<br />
on it. With respect <strong>to</strong> constitutional law, the critical conception endorsed dynamic<br />
interpretation in accordance with economic and social changes, changes which<br />
were also regarded as valid arguments in legal reasoning. The traditional conception, on<br />
the other hand, endorsed the view that legal and political issues were <strong>to</strong> be kept separate,<br />
and the protection of private property was strict and administered by clear rules.<br />
For the traditional conception, dynamic interpretation was ambiguous and a threat <strong>to</strong><br />
legal certainty.<br />
Fleischer’s comprehensive theory of constitutional interpretation led him <strong>to</strong> conclude<br />
that the Constitution had <strong>to</strong> be interpreted in accordance with social changes and<br />
the speci<strong>fi</strong>c circumstances of actual cases, because there was no point in holding on <strong>to</strong><br />
the principles of natural law which characterized the 1814 Constitution. The Constitution<br />
encompassed such a large area of social life that it could not ful<strong>fi</strong>ll its functions<br />
without a certain degree of elasticity. 309 The book, which was originally a brief for the<br />
Norwegian apartment construction association, received a relatively positive response,<br />
although Fleischer was criticized for expressing subjective opinions in an otherwise<br />
theoretically sophisticated book. 310 Fleischer’s book was not a radical critique of the<br />
legal system but a theory of realistic and dynamic constitutional interpretation, favoring<br />
strongly progressive and reformist social planning.<br />
Another example of the problems of private property was that of expropriation.<br />
The Norwegian law on expropriation was reformed at the late 1960s, the new regulation<br />
providing better opportunities for land regulation without full compensation. Audvar Os<br />
criticized the new law and supported a theory of full compensation. 311 Fleischer, however,<br />
supported the will of the legisla<strong>to</strong>r. 312 Fleischer’s theory was clear at least in cases<br />
where legislation supported his views, since the courts were then not <strong>to</strong> step outside the<br />
purposes of the law. For him, it was an important part of the more realistic conception<br />
of property that the right <strong>to</strong> compensation could be withdrawn if the value of the property<br />
had risen because of fac<strong>to</strong>rs not dependent on the owner. 313 Fleischer strongly supported<br />
the idea of social planning and the reformist social ideology. Since the reformist<br />
side considered expropriation and full compensation as hindrances <strong>to</strong> reform, it was<br />
clear that his theories supported easier expropriation and proportional compensation. In<br />
309 Fleischer 1968, supra n. 65 at 77, 88–92, 119–123, 180–203.<br />
310 Fl. Tolstrup, Anmeldelse [Grunnlovens grenser], Lov og rett 1968, 280. See also An<strong>to</strong>n Koch-Nielsen,<br />
Ejendomsrettens beskyttelse i planlægningssamfundet, TfR 1971, 322–351.<br />
311 Audvar Os, Ekspropriasjon og ekspropriasjonserstatning, Lov og rett 1969, 473–480.<br />
312 Carl August Fleischer, Ekspropriasjon og ekspropriasjonserstatning: Noen Bemerkninger til kommuneadvokat<br />
Audvar Os’ artikkel i Lov og rett nr. 10 for 1969, Lov og rett 1970, 288–289. For Os’ reply<br />
<strong>to</strong> Fleischer, see Audvar Os, Ekspropriasjon og ekspropriasjonserstatning nok en gang: Et tilsvar til professor<br />
dr. juris Carl August Fleischers bemerkninger i Lov og Rett nr. 6 for 1970, Lov og rett 1970, 458–<br />
461.<br />
313 Carl August Fleischer, Husaas-Komitéens forslag til lovbestemmelser om skjønnsordning og erstatningsfastsettelse<br />
ved ekspropriasjon, Lov og rett 1970, 30; Carl August Fleischer, Strandlovdommen, Lov<br />
og rett 1970, 213, 216 [later referred <strong>to</strong> as Fleischer 1970(a)].<br />
218
this regard, it is also clear how the critical scholars comprehended the connection between<br />
law and politics. For them, law was often politics expressed in legal terms, and<br />
the new conception was set <strong>to</strong> unravel the relationship.<br />
In any event, expropriation brought up interesting legal problems. For instance,<br />
Andenæs emphasized the role of the judiciary in applying the law of expropriation, 314<br />
whereas Eckhoff and Wilberg favored the letter of the law. 315 Andenæs was also criticized<br />
for conservative legal theory, 316 which, according <strong>to</strong> Andenæs, was based rather<br />
on a political than legal view. 317 Andenæs’s theories indeed supported his political<br />
views, since he was a reformist in criminal law scholarship but more conservative regarding<br />
constitutional law. The theories obviously largely corresponded <strong>to</strong> the political<br />
views of the scholar in question. Only rarely did someone note that his theoretical views<br />
contradicted his political views. Traditional scholars, of course, saw the connection between<br />
scholarship and politics meager, whereas it was the most important thing for critical<br />
scholars.<br />
Sometimes the political connection was the obvious purpose. Fleischer applied his<br />
theory in a case on the use of the Oslomarka, i.e., the natural areas surrounding the capital<br />
city of Norway. The problem was whether the owner had the right <strong>to</strong> build in the<br />
area or whether it should be protected as a natural environment. According <strong>to</strong> Fleischer,<br />
there was no point in legal formalism that would allow the owner <strong>to</strong> do whatever was<br />
not forbidden by the law because the problems concerned such an important area. The<br />
situation was about protection of a unique natural area, not simply about property rights.<br />
Public rights had <strong>to</strong> be weighed against private economic rights, and when the unique<br />
circumstances were taken in<strong>to</strong> account the environment was <strong>to</strong> be protected. 318<br />
Social interpretation of the Constitution did not please the traditional profession,<br />
Fleischer once again being criticized for stretching his arguments <strong>to</strong>o far and not having<br />
enough respect for legal certainty. 319 This time he was also criticized because of his<br />
his<strong>to</strong>rical interpretation. Fleischer argued that there was no his<strong>to</strong>rically established private<br />
ownership of the area, 320 but his<strong>to</strong>rians argued the contrary. 321 Indeed, Brækhus<br />
commented that Fleischer’s article was so ambiguous and poorly documented and that<br />
its conclusions were so flawed that it ought not <strong>to</strong> have been published. 322 The new con-<br />
314 Johs. Andenæs, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975, 272–274.<br />
315 Torstein Eckhoff & Ingeborg Wilberg, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975, 365–<br />
366, 369–370.<br />
316 Jens Haugland, Grunnlov og politikk, Lov og rett 1975, 370–371, 373–374; Bjørn Unneberg, Professor<br />
Andenæs og grunnloven, Lov og rett 1975, 377.<br />
317 Johs. Andenæs, Grunnlov, politikere og doms<strong>to</strong>ler, Lov og rett 1975, 380.<br />
318 Carl August Fleischer, Makt og rett: Om sikring av Oslomarka (Oslo: Gyldendal Norsk Forlag 1972),<br />
11, 18–26, 34–43, 134–135, 152–153, 174, 204.<br />
319 Audvar Os, Oslomarka ─ en kommentar til professor Fleischers betenkning, Lov og rett 1973, 439–<br />
442, 444, 446, 451, 455–456.<br />
320 Fleischer 1972, supra n. 318 at 115–134, 158, 186. See also Carl August Fleischer, Oslomarka ─ eiendomsretten<br />
til det såkalte “Løvenskiold-gods”, Lov og rett 1972, 194–211.<br />
321 Sjur Brækhus, Eiendomsretten til Nordmarksgodset, Lov og rett 1973, 463–490; Stein Tveite, Misbruk<br />
av his<strong>to</strong>rie: Fleischer og Nordmarka, Lov og rett 1973, 458–462.<br />
322 Brækhus 1973, supra n. 321 at 490.<br />
219
ceptions of property and constitutional interpretation were easier <strong>to</strong> sell <strong>to</strong> the legal profession,<br />
but the his<strong>to</strong>rical analysis of the situation caused troubles because Fleischer’s<br />
interpretation was obviously motivated by his goals. Environmentalism was on the rise<br />
in the early 1970s and the new conception of property provided better opportunities for<br />
the protection of the environment. Fleischer’s interpretation of his<strong>to</strong>ry supported his<br />
interpretation of constitutional law, both of which conflicted with the traditional view.<br />
Despite the criticism, Fleischer continued <strong>to</strong> build his theories of a more dynamic<br />
concept of property by arguing for more dynamic land regulation 323 and for a theory<br />
according <strong>to</strong> which the legisla<strong>to</strong>r could withdraw from public contracts more easily. 324<br />
In each case, however, his arguments were rebutted on the basis that he had placed his<br />
own opinions in the place of law. 325 Even though his arguments were not radical at face<br />
value, they deviated from the tradition <strong>to</strong> the extent that they were unacceptable <strong>to</strong> the<br />
majority of the profession. Critical scholarship met the needs of reform, but it collided<br />
with the tradition.<br />
Another problem of private property in which Fleischer actively developed reformist<br />
theory was the question of industrial democracy, which was a widely debated<br />
<strong>to</strong>pic in the sixties. 326 According <strong>to</strong> Fleischer, it was not rational <strong>to</strong> assume that the Constitution<br />
protected a particular kind of economic system. This meant that rights relating<br />
<strong>to</strong> the modern economy were not absolutely inviolable. 327 Therefore, he argued, the<br />
concept of property should be brought up <strong>to</strong> date. The rights of the owner would not be<br />
completely abandoned, but a system of industrial democracy would enforce the modern<br />
concepts of welfare and freedom better. 328 Fleischer’s ideas were widely criticized because<br />
they were regarded as mixing law with politics and violating the basis of property<br />
rights, 329 even if Asbjørn Eide unders<strong>to</strong>od Fleischer’s ideas from the perspective of so-<br />
323 Carl August Fleischer, Misvisende om den nye ekspropriasjonslov: En kommentar til byråsjef Rolf<br />
Hellesylts artikkel i Lov og rett 1973 s. 243 flg. om den nye ekspropriasjonslov, Lov og rett 1974, 219–<br />
226; Carl August Fleischer, Den nye lov om erstatning ved ekspropriasjon av fast eiendom ─ hovedinnhold,<br />
bakgrunn og forholdet til grunnloven, 11–13, in Carl August Fleischer, Ekspropriasjon, ulempe,<br />
skjønn (Oslo: Universitetsforlaget 1974), 9–34.<br />
324 Fleischer 1972, supra n. 318 at 204–221.<br />
325 Rolv Hellesylt, Om forlatels, C. A. Fleischer, om forlatels! Lov og rett 1974, 228–234; Johs. Andenæs,<br />
Er staten som lovgiver bundet av sine egne kontrakter? Lov og rett 1977, 435–452. Fleischer argued that<br />
Andenæs’s criticism was so off the mark that it could not be taken seriously. (Carl August Fleischer,<br />
Striden om statens kontrakter, Lov og rett 1978, 373.) As a curiosity it could be mentioned that Fleischer<br />
and Andenæs had a quarrel within University which ended up in a libel action. The case, however, was<br />
settled out of court. (http://snl.no/.nbl_biogra<strong>fi</strong>/Carl_August_Fleischer/utdypning, last visited 1.10.2012.)<br />
326 See Aake Anker-Ording, Bedriftsdemokrati: Eiendomsretten og grunnloven (Oslo: Universitetsforlaget<br />
1965).<br />
327 Carl August Fleischer, I hvilken utstrekning er det etter Grunnloven adgang til ved lov, uten erstatning<br />
å gjøre inngrep eller fastsette begrensinger i private rettsobjekters eierrådighet? Lov og rett 1964, 247–<br />
248.<br />
328 Carl August Fleischer, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 71–73.<br />
329 Jens Bugge, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 223–226; Bjørn Gustavsen, Bedriftsdemokrati,<br />
aksjelov og grunnlov, Lov og rett 1965, 231–233; Per Odberg, Bedriftsdemokratiet og<br />
Grunnloven, Lov og rett 1965, 314–316; Christian P. Pla<strong>to</strong>u, Bedriftsdemokratiet og Grunnloven, Lov og<br />
rett 1965, 237; Sverre Thon, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 234–236.<br />
220
cial rights. 330 Fleischer, on the other hand, criticized his critics for formalist legal theory<br />
and noted that he merely reconsidered the concept of property without abandoning it. 331<br />
Fleischer’s arguments suggested that the concept of freedom and welfare should<br />
be reconsidered in modern society. Here it is easy <strong>to</strong> see the connection with the critical<br />
argument that values were social constructs, and thus subjective and open <strong>to</strong> debate. For<br />
many of the traditional profession, these ideas were <strong>to</strong>o radical, which explains the general<br />
and hostile response <strong>to</strong> Fleischer’s theories. According <strong>to</strong> the critical notion, the<br />
problem was about conceptualization and interpretation, whereas the traditional view<br />
held that the question involved such fundamental premises of the legal system that they<br />
could not be left <strong>to</strong> personal discretion. From the perspective of critical legal scholarship,<br />
political arguments were valid whereas they were unacceptable from a traditional<br />
perspective. Furthermore, industrial democracy had a heavy socialist connection, which<br />
people without socialist sympathies could not <strong>to</strong>lerate.<br />
The difference between traditional and critical scholarship was clear in the debates<br />
on industrial democracy. Although traditional constitutional scholarship was aware of<br />
the fact that constitutional interpretation changed with time, 332 Fleischer criticized it for<br />
being restrictive and formalist with respect <strong>to</strong> property rights 333 and endorsed greater<br />
freedom from the constitutional boundaries for the legisla<strong>to</strong>r. 334 Andenæs did not fully<br />
comply with Fleischer’s radical arguments, noting that a certain amount of industrial<br />
democracy might be possible. 335 Fleischer was beyond the margins of the tradition and<br />
therefore his opinions were <strong>to</strong>o radical. He resembled American realism in his persistent<br />
endorsement of the powers of the legisla<strong>to</strong>r over fundamental principles of constitutional<br />
law which he considered as natural law. For the critical scholars, since law was a social<br />
construct, it had <strong>to</strong> be treated accordingly. In this persistent defense of social interpretation<br />
of the Constitution, Fleischer’s arguments were also similar <strong>to</strong> those of the<br />
critics of the neutral principles. Fleischer was simply more openly and obviously political<br />
in his critique than his American colleagues.<br />
As we see, at the most basic level the Norwegian debates on constitutional law did<br />
not consider the Constitution per se but the nature of the interpretation of the constitution.<br />
In the <strong>fi</strong>rst place, the question was whether judicial review was political or legal.<br />
Critical insight held that it was political, and, according <strong>to</strong> traditional scholarship, it<br />
occurred within judicial discretion. The same theme was present in the discussion of the<br />
interpretation of the constitution on actual cases, such as expropriation and industrial<br />
330 Asbjørn Eide, Aake Anker-Ordings bedriftsdemokrati, Lov og rett 1966, 34, 37.<br />
331 Carl August Fleischer, Bedriftsdemokratiet og Grunnloven, Lov og rett 1965, 317–324.<br />
332 See, e.g., Andenæs 1965, supra n. 58 at 35; Frede Castberg, Norges statsforfatning 1 (Oslo: Universitetsforlaget<br />
1964), 63; Finn Hiorthøy, Om frihet: Noen betraktninger i et minneår, Lov og rett 1965, 153.<br />
333 Fleischer 1970(a), supra n. 313 at 222.<br />
334 Fleischer 1968, supra n. 65 at 12–13, 77, 91, 119–122, 203, 211, 273; Carl August Fleischer, Prinsipper<br />
for grunnlovsfor<strong>to</strong>lkning, Lov og rett 1969, 441–450.<br />
335 Johs. Andenæs, Bedriftsdemokratiet, eiendomsretten og grunnloven, Lov og rett 1970, 113–138; Johs.<br />
Andenæs, Strandlovdommen og den juridiske teori: Noen bemerkninger til professor Fleischers kommentar,<br />
Lov og rett 1970, 434–435; Johs. Andenæs, Grunnlov og ekspropriasjonserstatning, Lov og rett 1975,<br />
243–274.<br />
221
democracy. The problem in these respects concerned the constitutional protection of<br />
property rights. Fleischer’s realistic theory preferred the public interest and social welfare<br />
<strong>to</strong> private property rights, whereas the traditional theory emphasized legal certainty<br />
and fundamental principles of law. There was no formalism, but the traditional scholarship<br />
stressed the protection of private rights, and hence a more formalist interpretation<br />
of the constitution than the critical scholarship. Fleischer, for instance, placed the highest<br />
priority on the changes in society and the political will of the legisla<strong>to</strong>r. His alternative<br />
theory promoted social planning, public interest, reconsideration of property rights,<br />
and material welfare and equality.<br />
Many of the fundamental points of Marxist theory were obvious in Fleischer’s<br />
scholarship although he did not explicitly support any particular theory. Meanwhile,<br />
Scandinavian critical legal scholars were not developing a comprehensive Marxist constitutional<br />
theory, 336 although they did deal with some contemporary problems, such as<br />
conscientious objection 337 and the state governance of people’s private lives through<br />
anti-terrorist laws, 338 and a symposium on Marxism and public law was organized. 339<br />
Scandinavian Marxist legal scholars brought up the problems of constitutional law in<br />
their analyses of other legal problems and were not concerned over a fundamental reform<br />
of the Constitution. The practical application of the constitution was important, not<br />
the constitution as such.<br />
The Norwegian debates on constitutional law recalled the American debates on<br />
neutral principles. Both occasions concerned the question of whether legal reasoning<br />
was supposed <strong>to</strong> be rational and neutral, or whether it ought <strong>to</strong> conform <strong>to</strong> social realities.<br />
Otherwise, constitutional law was not particularly important for critical scholars<br />
either in the United States or in Scandinavia, the scholars being more concerned about<br />
its interpretation and practical application. However, through the conception of rights,<br />
constitutional law was indirectly signi<strong>fi</strong>cant for critical scholarship.<br />
6 Alternative and critical legal scholarship in the late 1970s<br />
6.1 Development of the critical mood<br />
Alternative and critical legal scholarship developed in the 1960s and started <strong>to</strong> attract<br />
more attention in the early 1970s, when more students and scholars became interested in<br />
the critical activities. Old trends continued and new ideas were advanced. Critical legal<br />
336 See Elster 1977, supra n. 177. In Finland, the situation was somewhat different, as will be seen in the<br />
following chapter.<br />
337 Nils Kristian Sundby, Militærnekting på politisk grunnlag, Lov og rett 1968, 385–409.<br />
338 Göran Elwin, Den svenska terroristlagen ─ en importerad kuliss, Retfærd 4/1977, 7–26.<br />
339 See Retfærd 4/1977.<br />
222
scholars worked <strong>to</strong>wards changing the society and the nature of scholarship and founded<br />
various associations and journals. 340 The new trends of the 1970s included the efforts<br />
<strong>to</strong> bring legal aid <strong>to</strong> people previously unable <strong>to</strong> obtain it, such as the Norwegian “Jussbuss”<br />
project, 341 as well as the efforts <strong>to</strong> gather the theories and studies on legal aid, 342<br />
sociology of law, 343 critical legal scholarship, 344 critical criminal law scholarship, 345 and<br />
Marxist legal scholarship 346 in<strong>to</strong> comprehensive editions available <strong>to</strong> a wider audience.<br />
In addition, scholarship on practical legal behavior became more common, 347 and legal<br />
scholarship entered <strong>fi</strong>elds of citizen activism, such as women’s rights. 348 Alternative and<br />
critical legal scholarship activities became more common, spreading <strong>to</strong> cover a vast<br />
number of social problems. In addition, people participating in the activities wanted <strong>to</strong><br />
organize their actions more and <strong>to</strong> make their studies more generally available. Alternative<br />
legal scholarship became common practice and it pursued more practical utility.<br />
Moreover, although the 1970s was a time of increased interest in Marxist theory, it<br />
was also a time when Marxism was widely criticized. Some legal scholars who in general<br />
favored critical and Marxist theory thus sought <strong>to</strong> distance themselves from orthodox<br />
Marxism and develop the theory <strong>to</strong> make it more productive from a less radical<br />
perspective. 349 The late 1970s thus meant change for Marxist legal scholarship, because<br />
340 Sundby 1976, supra n. 38 at 10–13.<br />
341 Gunnar de Capua, Juristbussen - redogörelse för ett försök, in Edling & Elwin (eds.) 1973, supra n.<br />
100 at 204–218; Gunnar de Capua, Juss-buss – Et rettshjelpstilbud for “vanlige folk”, in Arild Eidesen,<br />
Ståle Eskeland, Thomas Mathiesen (eds.), Rettshjelp og samfunnsstruktur (Oslo: Pax forlag 1975), 72–<br />
94. See also Ståle Eskeland och Just Finne, Allmänhetens behov av rättshjälp, in Edling & Elwin (eds.)<br />
1973, supra n. 100 at 172–203. “Juss-buss” was a project initiated by legal students in Oslo in<br />
1970─1971, the purpose of which was <strong>to</strong> provide legal aid for under-privileged people, conduct behaviorist<br />
research in law, and <strong>to</strong> give practical education <strong>to</strong> law students. Scholars participating in the project<br />
argued that the Norwegian Lawyers’ Association was hostile <strong>to</strong>ward the project, which revealed the conservative<br />
nature of the profession. (Ole Jakob Bae, Progressiv advokatvirksomhet ─ en illusjon? in<br />
Bratholm & Sundby (ed.) 1976, supra n. 38 at 156–172; Capua 1973, id. at 215–217.) Juss-buss was an<br />
actual project of assisting the poor and providing realistic research and education. The legal profession at<br />
large was probably concerned about what might happen <strong>to</strong> its reputation if students were <strong>to</strong> give free legal<br />
assistance. It also might have been concerned about its power in the <strong>fi</strong>eld.<br />
342 Ståle Eskeland & Just Finne, “Rettshjelp”: En analyse og empirisk undersøkelse av tradisjonell rettshjelps<br />
muligheter og begrensninger ─ særlig for folk som lever under vanskelige økonomiske eller sosiale<br />
kår (Oslo: Pax forlag 1973); Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341.<br />
343 Edling & Elwin (eds.) 1973, supra n. 100; Aubert (ed.) 1972, supra n. 99. Norwegian sociology of law<br />
was strongly inspired by American legal realism and law and society scholarship in the 1960s. Marxism<br />
became more influential in the 1970s. (Jon T. Johnsen, Kritisk juss i arbeidet mitt som rettsforsker, 217–<br />
218, in Modéer & Sunnqvist (ed.) 2010, supra n. 105 at 201–225.) There was an obvious Marxist turn in<br />
scholarship in the 1970s.<br />
344 Bratholm & Sundby (eds.) 1976, supra n. 38.<br />
345 Elwin; Heckscher; Nelson 1971, supra n. 267. Here <strong>to</strong>o Marxist theory was more obvious in the revised<br />
edition of 1975, supra n. 269, than in the original of 1971.<br />
346 Elwin & Vic<strong>to</strong>r (ed.) 1978, supra n. 131.<br />
347 Thorbjørn Axelsen & Arnstein Finset (eds.), Aksjonsforskning i teori og praksis (Oslo: Cappelens<br />
almabøker 1973).<br />
348 Tove Stang Dahl, Kjersti Graver, Anne Hellum, & Anne Robberstad, Likhet og urett, in Bratholm &<br />
Sundby (eds.) 1976, supra n. 38 at 89–127.<br />
349 Aubert 1976, supra n. 178 at 10–11; Torstein Eckhoff, Jus og politikk, 26–27, in Bratholm & Sundby<br />
(ed.) 1976, supra n. 38 at 18–60; Sundby 1976, supra n. 38 at 15. Malt has documented the development<br />
of Norwegian critical legal scholarship quite well, describing it partly as a response <strong>to</strong> the problems of<br />
223
some scholars tried <strong>to</strong> impose quali<strong>fi</strong>cations on it in order <strong>to</strong> take it out of its original<br />
form and others were modifying it <strong>to</strong> respond <strong>to</strong> contemporary society better. In any<br />
event, the decade was still a prosperous one for alternative and critical legal theory and<br />
scholarship.<br />
In this section, I will deal with the currents of Scandinavian alternative and critical<br />
legal scholarship in the late 1970s. The scholarship expanded at the end of the decade <strong>to</strong><br />
a considerable extent, and I will provide a general outline of this development up <strong>to</strong> the<br />
1980s. First, I will take a look at the practical connections of the scholarship, such as<br />
legal aid, the rights of the citizen, and feminism. I will then briefly examine some problems<br />
of general jurisprudence, the emergence of the distinction between rules and principles,<br />
and the development of Marxist legal scholarship. The movement of alternative<br />
legal scholarship that culminated in the latter half of the 1970s was a relatively extensive<br />
phenomenon, emanating from the changes in society and scholarship and deriving<br />
from the same influences, but the differences in theory and detail derived from the interests<br />
of the particular scholars. Critical legal scholarship was a radical manifestation<br />
of the wider movement.<br />
6.2 The legal profession and the critical mood<br />
Organizing was an important element of the critical legal activities. According <strong>to</strong><br />
Thomas Mathiesen, a Norwegian scholar of sociological jurisprudence, it was dif<strong>fi</strong>cult<br />
though not impossible <strong>to</strong> use the law as a <strong>to</strong>ol of social change, but this required, among<br />
other things, organized activity in close contact with those in need of the change. 350 Alternative<br />
legal activity was needed because, as Ole Bae noted, there were people whose<br />
social situation was not as good as it was supposed <strong>to</strong> be in a society that was based on<br />
human rights and an equal distribution of social bene<strong>fi</strong>ts and rights. The activities of the<br />
alternative jurists, or progressive jurists as Bae called them, aimed at improving their<br />
status. 351 Alternative legal scholarship focused on the reasons for the gap between law<br />
in books and law in action, and their practical work aimed at bridging this gap. Their<br />
work increased in the 1960s and early 1970s and intensi<strong>fi</strong>ed in the late 1970s.<br />
The practical orientation was needed because the critical scholars saw that law and<br />
society shared a fundamental connection. Mathiesen argued that law had effects on society<br />
beyond the intentions of the legisla<strong>to</strong>r because law consolidated and legitimized<br />
the existing social structures and made them seem natural and rational. Alternative theories<br />
and scholarship were needed <strong>to</strong> reveal the legitimizing function of law and <strong>to</strong> work<br />
scienti<strong>fi</strong>c orthodox Marxism and the need of the critical scholars <strong>to</strong> apply their theory in practice. (Gert-<br />
Fredrik Malt, Kritisk rettsteori i Norge, Retfærd 7/1978, 40–47, 53–56.)<br />
350 Thomas Mathiesen, Kan juristen arbeide progressivt? 151–152, in Bratholm & Sundby (ed.) 1976,<br />
supra n. 38 at 147–155.<br />
351 Bae 1976, supra n. 341 at 156.<br />
224
<strong>to</strong>wards change. 352 Although some other legal sociologists criticized Mathiesen’s theory<br />
for its materialism, undervaluing of law, and drawing empirical conclusions from its<br />
theoretical premises, 353 it did describe the nature of the alternative legal scholarship.<br />
Critical legal scholars were after a theory that could help <strong>to</strong> explore the indirect and<br />
unseen functions of law and provide <strong>to</strong>ols for criticism. In the latter part of the 1970s,<br />
critical legal scholarship stressed the ideological and constitutive elements of law more.<br />
However, the theories and studies had <strong>to</strong> be taken <strong>to</strong> the practical level, critical scholarship<br />
being not enough alone. This meant either grass-roots activity or research on practical<br />
matters.<br />
Organizing and practical orientation were major trends in the 1970s. Critical and<br />
alternative legal scholarship had started mostly as academic movements, but as they<br />
acquired more proponents, their research expanded and the project was oriented more<br />
<strong>to</strong>ward everyday practice. As noted, the alternative movement in criminal law had already<br />
been organized in<strong>to</strong> political associations in the late 1960s. Alternative scholarship<br />
on crime had prospered throughout the 1960s and the associations founded at the<br />
end of the decade aimed <strong>to</strong> bring the critical notions in<strong>to</strong> practice. On these occasions,<br />
scholars were not satis<strong>fi</strong>ed with mere research, wanting <strong>to</strong> have practical utility for their<br />
scholarship and participation in political activities.<br />
Organizing thus concerned critical legal scholars and scholarship in general. There<br />
were legal movements with practical orientation in the late 1960s and early 1970s,<br />
which contributed <strong>to</strong> critical scholarship and literature and gained a stronger foothold in<br />
social matters as the 1970s progressed. Among the organizations were Swedish FiB<br />
lawyers who were interested in fundamental rights. There was also the critical law<br />
movement in Norway with its general interest in critical scholarship and legal work. It<br />
was influenced by the critical sociology of law and transformed from a general endeavor<br />
in legal aid in<strong>to</strong> the Norwegian Legal-Political Association (Rettspolitisk forening).<br />
In Denmark, there were the critical front and the law and society movement, which were<br />
interested in Marxist theory and sociological jurisprudence. 354<br />
In the latter part of the 1970s, these movements founded law journals for critical<br />
articles dealing with contemporary social and legal problems. Finland was the forerunner,<br />
when the Association of Democratic Lawyers founded the journal Oikeus (Law) for<br />
critical legal literature in 1972. 355 Their Scandinavian colleagues soon followed, and the<br />
Norwegian Hefte for kritisk juss (Journal for Critical Jurisprudence) was founded in<br />
352 Thomas Mathiesen, Rett og samfunn: Utkast til en rettssosiologi (Oslo: Pax forlag 1975), 56–58, 62,<br />
66–68, 76–78.<br />
353 Jon T. Johnsen, Materialitetstenkningen i rettssosiologien, Lov og rett 1979, 261–272.<br />
354 Hefte for kritisk juss 3/1976, 1–10 (Ingemar Folke, FiB-juristerna: För folkets rättigheter, HfKJ<br />
3/1976, 3–5; Peter Blume, Kritisk retsvitenskap i Danmark, HfKJ 3/1976, 6–7; Torben Wanscher, HfKJ<br />
3/1976, 8–10); Per Persson, FiB juristerna, Sverige, Retfærd 3/1977, 108–110; Fagkritik-Jura, Århus<br />
Universitet, Retfærd 3/1977, 110–112; Øyvind Solberg, Rettspolitisk forening og progressiv juss i Norge,<br />
Retfærd 4/1977, 96–98.<br />
355 Helge Rontu, Finlands demokratiska jurister och det internationella samarbetet, Retfærd 4/1977, 99–<br />
103. The Association of Democratic Lawyers was founded in the 1950s but its activities were reformed in<br />
the 1970s <strong>to</strong> meet the needs of the contemporary left. The Finnish case is the <strong>to</strong>pic of the next chapter.<br />
225
1975, and the Swedish Tidskrift för folkets rättigheter (Journal for the Rights of the<br />
People) 356 was founded in 1977. The Danish Retfærd, established in 1976, was <strong>to</strong> become<br />
a Nordic journal for Marxist legal scholarship. Thus, there were Scandinavian<br />
journals for critical legal scholarship in which critical scholars could participate in contemporary<br />
social debates and offer their theories on law and society. Retfærd was a<br />
scholarly journal including mostly theoretical articles relating <strong>to</strong> practical problems. The<br />
Swedish and Norwegian journals were more directed <strong>to</strong> the ordinary reader and aimed<br />
at dealing with practical matters in an easily accessible style.<br />
For example, the journal of critical jurisprudence, a publication of the Norwegian<br />
Legal-Political Association, was a small, pamphlet-like journal that contained articles<br />
regarding contemporary legal problems, such as legal aid, housing, criminal law, labor<br />
law, and minorities' rights. The journal was aimed at reformist politics and was clearly<br />
leftist and anti-imperialistic. The plain and unscholarly nature of the essays encapsulated<br />
the idea of making them accessible <strong>to</strong> everyone, not just jurists. The close cooperation<br />
of the people working at the Juss-Buss and in the Legal-Political Association made<br />
the journal close <strong>to</strong> the legal problems of ordinary people. It was, after all, these organizations<br />
that narrowed the distance between critical legal scholarship and lay people.<br />
Critical legal scholarship was not simply a theoretical academic movement, many of its<br />
activities actually working for the bene<strong>fi</strong>t of the underdog.<br />
A part of the reformist project was the studies on legal aid. The sociological and<br />
critical legal movement accelerated the interest in studying the real need for access <strong>to</strong><br />
justice and the consequences of the lack of it. 357 In a study on legal aid in 1973, Ståle<br />
Eskeland and Just Finne argued that the people most in need of legal assistance had the<br />
least opportunity <strong>to</strong> obtain it. 358 The study was an empirical and participa<strong>to</strong>ry study<br />
based on actual legal problems that showed that people were not aware of their rights or<br />
had serious dif<strong>fi</strong>culty in obtaining them. The authors applied the methods of critical<br />
legal scholarship, namely, Marxist theory and empirical observation, and they criticized<br />
the whole legal aid system.<br />
Legal aid was mostly a benevolent effort <strong>to</strong> improve society, but it was also a <strong>fi</strong>eld<br />
of study, providing theoretical opportunities. A purpose of a compilation of studies on<br />
legal aid was <strong>to</strong> examine its function in society and whether it could be used as a <strong>to</strong>ol of<br />
social reform. 359 Scholars argued that the serious inequalities in legal aid corresponded<br />
356 One issue of Fib-juristbladet was published in 1976, but the name of the journal was changed the year<br />
after. The name FiB lawyers follows from the movement of cultural radicalism of the 1960s called “Folket<br />
i bild/kulturfront” (“People at the picture/cultural front”), and the lawyers associated with the movement<br />
adopted its radical thought in<strong>to</strong> law and legal scholarship. The association is still active.<br />
357 Studies in legal aid were not an innovation of the critical law movement. Problems of legal aid have<br />
probably been examined as long as the institution has existed. For instance, there was some discussion<br />
about it in Sweden in 1970 when the legislation on legal aid was reformed. See Ulla Jacobson, Likhet<br />
inför lagen i kostnadsfrågor, SvJT 1970, 549–558, in which the purpose is <strong>to</strong> show that legal aid regulation<br />
can have undesired consequences.<br />
358 Eskeland & Finne 1973, supra n. 342 at 153, 200.<br />
359 Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341 at 7.<br />
226
with the social class divisions. 360 Thus, they revised the concept of legal aid from passive<br />
assistance in<strong>to</strong> an active and comprehensive political struggle for social reform. 361<br />
Other problems were also observed. Scholars noted that the reform of legal aid did not<br />
pay due attention <strong>to</strong> the actual circumstances of the poor and could not therefore ef<strong>fi</strong>ciently<br />
guarantee their right of access <strong>to</strong> justice. 362 Since inequalities in access <strong>to</strong> justice<br />
were seen <strong>to</strong> derive from the inequalities in society, wide-ranging reforms were needed.<br />
363 The critical notion was that not only did the law protect the interests of the rich,<br />
but also provided better opportunities for the rich <strong>to</strong> protect their rights. This notion<br />
made the critical scholars assume that the law was systematically biased in favor of the<br />
rich, and thus it directed the interest <strong>to</strong> the structures of law.<br />
The critical scholars sought <strong>to</strong> demonstrate that legal aid was <strong>to</strong> be unders<strong>to</strong>od as a<br />
legal mechanism with considerable functions and effects in society, and as a legal <strong>to</strong>ol<br />
in organizing and reforming society, not in a traditional, normative sense. Studies in<br />
legal aid were sociological studies aiming at revealing the actual situation so that the<br />
problems could be realized and corrected. Critical legal scholars were also interested in<br />
legal aid because of the new legal ethos. They thought that the legal profession was in<br />
general a conservative social force on the side of the upper social classes, but it could<br />
become an active reformist force siding with the lower social classes and promoting<br />
social welfare and equality.<br />
Critical legal scholars wanted <strong>to</strong> distance themselves from the tradition in various<br />
respects. They did not want <strong>to</strong> identify with the image of the legal profession they had,<br />
and they created a new identity according <strong>to</strong> which the legal profession worked for the<br />
poor and the under-privileged, as well as working for a more equal society. In the<br />
1970s, various legal journals were founded <strong>to</strong> support the critical cause and studies on<br />
the law in action increased. Alternative scholarship was regarded as a progressive force<br />
that contributed <strong>to</strong> the social change. In the efforts <strong>to</strong> criticize the traditional legal<br />
thought and struggle <strong>to</strong>ward change, the rights of the people became more interesting <strong>to</strong><br />
the legal scholars.<br />
6.3 Perspectives on the rights of the citizen<br />
As people in general began <strong>to</strong> demand more equality and rights, and as scholarship had<br />
persistently argued that the law treated people inequitably because of the differences in<br />
social status, the rights of the people became more and more signi<strong>fi</strong>cant in the scholar-<br />
360 Erling H. Albrechtsen, Om advokater og advokatsøking, 23–24, 33–34, in Eidesen; Eskeland, Mathiesen<br />
(ed.) 1975, supra n. 341 at 23–71.<br />
361 Id. at 71; Ståle Eskeland, Innledning, 15, in Eidesen; Eskeland; Mathiesen (eds.) 1975, supra n. 341 at<br />
10–22.<br />
362 Jon T. Johnsen, Den norske rettshjelputredningen: En kritisk kommentar, Retfærd 8/1978, 23–25.<br />
363 Helmuth Schledermann, Information eller understrykkelse? Rettsinformation til ressourcefattige, Retfærd<br />
5/1977, 75.<br />
227
ship. The critical legal scholarship of the 1970s placed ever heavier emphasis on the<br />
rights of the citizen although they had already been important <strong>to</strong> legal scholarship in the<br />
1950s and 1960s. In the 1970s, however, rights became special arguments with which <strong>to</strong><br />
analyze and criticize the social order.<br />
The problem of rights had been crucial <strong>to</strong> legal scholarship at least since the time<br />
of legal realism. The realists had argued that rights were mere metaphysics without a<br />
point of reference in empirical reality. In the 1960s, natural law theorists such as Frede<br />
Castberg had criticized realism for its lack of interest in rights. 364 Marxist theory, on the<br />
other hand, was skeptical of the traditional conception of rights because it saw that their<br />
purpose was <strong>to</strong> protect bourgeois society, and it thus focused typically on the materialist<br />
and ideological aspects of rights. 365 Rights analysis had been of interest <strong>to</strong> critical legal<br />
scholars in the late 1960s 366 and, by the mid-1970s, Sundby argued that natural law was<br />
still used <strong>to</strong> legitimize legal phenomena. 367 Rights were important <strong>to</strong> critical legal scholarship,<br />
not only because of their social signi<strong>fi</strong>cance but also their theoretical interest.<br />
Realism had sought <strong>to</strong> extract values from legal scholarship, and natural law theory <strong>to</strong>ok<br />
certain values at face value. Critical scholarship, on the other hand, wanted <strong>to</strong> expose<br />
values and policies in<strong>to</strong> an open discussion in jurisprudence.<br />
Scandinavian Marxist legal scholars did not develop a comprehensive theory of<br />
rights although there was a need for it 368 and there were efforts at doing this elsewhere.<br />
369 The problem of rights, however, was that the traditional concept derived from<br />
the bourgeois values of the nineteenth century, and it was still presented as natural and<br />
rational. 370 For instance, with respect <strong>to</strong> legitimacy, Marxist legal scholars denied the<br />
existence of universal categories of legitimacy and emphasized its function in a particular<br />
society. 371 Critical scholarship concerned the various concepts of rights and their<br />
practical expressions, seeking <strong>to</strong> place their considerations in a context in which the<br />
rights could be examined against their functions and origins. The critical understanding<br />
was that rights were not universal or metaphysical, but served particular material interests<br />
and purposes.<br />
Critical theory on human rights was mostly seen in studies concerning freedom of<br />
speech and political activity. Critical legal scholars in general became more interested in<br />
the political suppression of revolutionary activity and the public efforts <strong>to</strong> tame the radical<br />
political left. 372 Political rights were naturally of importance <strong>to</strong> the critical legal<br />
364 Castberg 1965, supra n. 58.<br />
365 Eide Asbjørn, Menneskerettigheterne i teori og praksis, TfR 1969, 98–99, 103–107, 120–121.<br />
366 Nils Kr. Sundby, Legal Right in Scandinavian Analyses, 13 Natural Law Forum 72–107 (1968).<br />
367 Sundby 1975, supra n. 85 at 353–354.<br />
368 See Asbjørn 1969, supra n. 365.<br />
369 Jószsef Halász (ed.), Socialist Concept of Human Rights (Budapest: Akadémiai Kidaó 1966).<br />
370 Herman Klenner, The Marxist Conception of Human Rights, Retfærd 6/1977, 8–13, 17.<br />
371 Strange Beck, Hanne-Birgitte Jensen, Jørgen Lokdam, Torben Wanscher, Om legalitetsbegrebet i den<br />
marxistisk-leninistiske rets- og statsteori, Retfærd 6/1977, 75. This article was a review of a German<br />
translation of a Soviet book on the general theory of law and the state.<br />
372 Arbejdsretsgruppen under Fagkritik Jura, Århus: Fysiske blokæder, Retfærd 7/1978, 96–118; Peter<br />
Blume & Inger Høedt-Rasmussen, Om kriseret, Retfærd 7/1978, 89–95; Kirsten Gamst-Nielsen, Stats-<br />
228
scholars because free political activity was a precondition of social and political change<br />
as well as of their scholarship. Marxist theory stressed the fact that freedom and rights<br />
mostly supported the contemporary society, and the state therefore often reacted violently<br />
<strong>to</strong> activities which threatened the existing source of protection. Although the problem<br />
was a matter of debate, the critical scholars had their theoretical point of view from<br />
which they observed the state actions.<br />
General political rights were also interesting in the 1970s, when the problems of<br />
human rights especially were brought in<strong>to</strong> the spotlight of legal scholarship. FiB lawyers<br />
were established in Sweden in 1972 <strong>to</strong> promote freedom of expression and publishing,<br />
legal aid for the rights of the people, and anti-imperialism. Göran Bodin and Staffan<br />
Rylander, who participated in the organization, investigated the limits of the freedom of<br />
expression, coming <strong>to</strong> the conclusion that this right was often ambiguous, which led <strong>to</strong><br />
uncertainty and arbitrariness. 373 Bodin and Rylander studied the gap between law in<br />
books and law in action in a his<strong>to</strong>rical, sociological, and empirical perspective with a<br />
critical theoretical background. Besides the critical pursuit, they also participated in<br />
contemporary discussion by focusing much of their criticism <strong>to</strong> the formulation of the<br />
new Constitution. 374 The study was thus both critical and political. It advanced various<br />
methods in analyzing legal reality and used its <strong>fi</strong>ndings <strong>to</strong> point out the need for reform,<br />
from the critical point of view of course. Critical legal scholarship was moving from the<br />
analysis of the gap between law in books and law in action <strong>to</strong> the analysis of the reasons<br />
for the gap, as well as <strong>to</strong> analysis of ideology. Critical scholarship thus represented a<br />
critique of the value-neutrality of the traditional scholarship, and sought <strong>to</strong> reintroduce<br />
the question of values <strong>to</strong> legal scholarship.<br />
Scholarship was also directed <strong>to</strong>ward other socially important problems. Critical<br />
scholars were interested in such things as law concerning labor and housing, 375 minority<br />
rights, 376 and women’s rights. 377 Studies on legal aid related <strong>to</strong> access <strong>to</strong> justice and<br />
equal protection of the poor. Studies on political rights concerned mostly reformist political<br />
activity, public opinion-building, radicalism, and freedom of expression, and thus<br />
related <strong>to</strong> the political opposition and critical scholarship. Studies on labor law, housing,<br />
magtens anvendelse af politivedtægten mod politisk aktivitet i Danmark, Retfærd 6/1977, 98–106; Peter<br />
Germer, Berufsverbot i forfatningsretlig belysning, Retfærd 6/1977, 87–92. The symposium in Retfærd<br />
6/1977, 87–106, was dedicated <strong>to</strong> the legal suppression of political freedom, and the symposium in Retfærd<br />
7/1978, 69–132, was dedicated <strong>to</strong> crisis law. Blume and Høedt-Rasmussen noted that since on many<br />
occasions a crisis was something that threatened the capitalist system, crisis law was sometimes <strong>to</strong> be<br />
unders<strong>to</strong>od as a <strong>to</strong>ol in the class struggle, not simply as a legitimate means in situations of political crisis.<br />
Hence they criticized the Finnish contribution <strong>to</strong> the symposium for an overtly narrow concept of crisis<br />
law. (Blume & Høedt-Rasmussen 1977, id. at n. 1. The Finnish article in the symposium was Tommi<br />
Kivilaakso & Mikko Könkkölä, Krislagstiftningen i Finland, Retfærd 7/1977, 77–88.)<br />
373 Göran Bodin & Staffan Rylander, Yttrandefrihetens gränser: Om rätten till folklig opinionsbildning ─<br />
En praktisk handledning (S<strong>to</strong>ckholm: Wahlström & Widstrand 1974), 40–64, 109–121.<br />
374 Id. at 37. The Swedish Constitution was reformed in 1974. (On the debate on the fundamental freedoms<br />
and rights during the drafting of the new Constitution, see Algotsson 1987, supra n. 288.)<br />
375 See the symposium in Hefte for kritisk juss 2/1976.<br />
376 See the symposium in Hefte for kritisk juss 2/1979.<br />
377 See the symposiums in Retfærd 10/1979; Hefte for kritisk juss 3–4/1979.<br />
229
and minorities concerned people otherwise in a less-privileged social position. Although<br />
it is impossible <strong>to</strong> estimate the practical impact of these studies, they contributed more<br />
or less <strong>to</strong> the idea of equality and <strong>to</strong> the construction of welfare legislation. However, it<br />
was especially the studies on women’s rights which were important because they contributed<br />
<strong>to</strong> the rise of a new branch of legal scholarship.<br />
6.4 Critical gender studies in law<br />
Feminist criticism of law also began <strong>to</strong> attract more attraction in the 1970s. The feminist<br />
movement had arisen in the 1960s, and with the emergence of the sociology of law and<br />
critical legal scholarship, feminist jurisprudence appeared, focusing on the legal status<br />
of the women. Critical gender studies in law established itself as an academic discipline<br />
in Norway in the early 1970s and spread rapidly <strong>to</strong> the other Nordic Countries. 378 Its<br />
theoretical basis was materialism, with the difference that it placed the heaviest emphasis<br />
on the male dominance of society. 379 This laid the foundations for scholars interested<br />
in the status of women <strong>to</strong> elaborate a theory <strong>to</strong> analyze the situation in its legal and social<br />
context. The critical feminist movement in law was a part of the critical legal<br />
movements and Marxist scholarship, and its theories were relatively similar with the<br />
exception of the main focus. Feminist jurisprudence was thus an expression of the rise<br />
of the female profession within the alternative establishment.<br />
Critical feminist scholars dealt with various legal <strong>to</strong>pics, both theoretical and practical.<br />
For instance, they criticized the Norwegian law on equality because it was built on<br />
the ideal of equality before law without suf<strong>fi</strong>cient account of the actual social situation<br />
of women. Therefore, they argued, there ought <strong>to</strong> have been a law against discrimination<br />
against women rather than one on equality between the sexes because the presumption<br />
of equality was the biggest hindrance <strong>to</strong> improvement. 380 Jes Bjarup, who also criticized<br />
Marxist legal scholarship, argued that the feminist scholars had drawn conclusions<br />
from their theoretical premises and exaggerated the need for radical change. 381 Since<br />
feminist legal scholars used the same theoretical basis as the critical legal scholarship, it<br />
faced the same problems. According <strong>to</strong> critical gender theory, society was structurally<br />
biased against women, and thus minimal changes and reforms could not overcome the<br />
problem, whereas traditional thought emphasized the legislation that protected women.<br />
The difference was in the mode of perception.<br />
The connection between Marxism and feminist jurisprudence was obvious on<br />
some occasions. For example, Karin Widerberg applied a theory of structuralist Marx-<br />
378 Anne Hellum, Kvinnerett ─ radikal feministisk fagkritik, HfKJ 3–4/1979, 3.<br />
379 Ruth Nielsen, Kvinders retsstilling og materialistisk retsteori, 315–327, in Inger Dübeck, Jytte Lindgård,<br />
Ruth Nielsen, (eds.), Jura og kvinder: Festskrift i anledning af 100-året for kvinders adgang til juridisk<br />
embedseksamen (København: Juristforbundets forlag 1975), 314–330.<br />
380 Dahl; Graver; Hellum; Robberstad 1976, supra n. 348 at 91–92, 124–127.<br />
381 Jes Bjarup, Anmeldelse [Kritisk juss], TfR 1977, 99–100.<br />
230
ism in exploring the development of the legal and social status of women in Sweden.<br />
However, she had <strong>to</strong> revise the theory because, she claimed, structuralism was genderneutral<br />
and had a male perspective on society. Despite the switch of perspective, her<br />
arguments reflected critical thought. She argued that in order <strong>to</strong> maintain the development<br />
of capitalism, the state had <strong>to</strong> reproduce hierarchies between the sexes, so that<br />
women were subordinated both <strong>to</strong> men and <strong>to</strong> capitalism. Her conclusions were also<br />
typical of critical scholarship, focusing on fundamental social change. She noted that<br />
the formal equality of capitalist society could not produce actual equality. There was<br />
thus a need <strong>to</strong> struggle for a society in which politics, not the economy, would determine<br />
the measures of equality, which meant a struggle <strong>to</strong>ward socialism. 382 The feminist<br />
theory of structuralism was also a theory of fundamental criticism of law because,<br />
according <strong>to</strong> the theory, the traditional legal system was not able <strong>to</strong> ful<strong>fi</strong>ll its own requirements.<br />
Feminist theory also sought fundamental social reform. The theory was<br />
basically the same as Marxist theory, but instead of capitalist oppression, the emphasis<br />
was on gender-based oppression, which nonetheless related <strong>to</strong> the economic structures.<br />
Together with the rising interest in the social problems of women and critical gender<br />
studies, particular problems, such as rape, for example, were also brought <strong>to</strong> the<br />
attention of legal research. Bertil Falconer conducted empirical research on rape and its<br />
impact on the social status of women. 383 Carstensen and Larsen, on the other hand, focused<br />
on the ideological and constitutive aspects, arguing that the traditional concept of<br />
rape as an expression of individual mental problems and sexual frustration could not<br />
explain rape as a social phenomenon. The problem was rather of a structural kind, relating<br />
<strong>to</strong> the economic structure of the society and in particular <strong>to</strong> the power structure of<br />
the genders. 384 Structural explanations were popular at the time because they focused on<br />
fac<strong>to</strong>rs outside the individual. According <strong>to</strong> critical thought, social problems originated<br />
in the social and economic structures, and the fault was in the system.<br />
The interest in gender studies in law increased as the 1970s approached its<br />
close. 385 Gender studies had a multifaceted program for its methods and purposes. It<br />
sought <strong>to</strong> reveal the oppressed status of women in society and <strong>to</strong> tear down the hierar-<br />
382 Karin Widerberg, Kvinnans rättsliga och sociala ställning i Sverige 1750─1976 (Lund University<br />
Sweden: Department of sociology of law, Report series 3 –1978), 1–8, 37–42, 67–68, 92, 108–116, 147–<br />
148, 162–163, 218–219, 285–286, 300. In the revised version of 1980, the theoretical part is left out,<br />
otherwise the book is basically the same but easier <strong>to</strong> read. (See Karin Widerberg, Kvinnor, klasser och<br />
lagar 1750─1980 (S<strong>to</strong>ckholm: LiberFörlag 1980).)<br />
383 Bertil Falconer, Våldtäktsbrottet, SvJT 1975, 161–207.<br />
384 Gitte Carstensen & Sidsel Larsen, Voldtæktsoppfattelser ─ Præmisser og konsekvenser, Retfærd<br />
10/1979, 49–66.<br />
385 In 1975, at the 100 th anniversary of the entrance of women in<strong>to</strong> legal education a festschrift “Legal<br />
Scholarship and Women” (Jura og Kvinder), was published, including several articles regarding the legal<br />
status of women. (Dübeck; Lindgård; Nielsen (ed.) 1975, supra n. 379). The series for Gender Studies in<br />
Law (Kvinderetlig skriftserie) was established in Copenhagen in 1976, and the <strong>fi</strong>rst “Yearbook of Gender<br />
Studies in Law” (Årbog for Kvinderet) was published in 1978. Symposiums for gender studies in law<br />
included Hefte for kritisk juss 3–4/1979; Retfærd 10/1979. The literature on gender studies in law and<br />
other branches of social science expanded greatly during the latter half of the seventies. The early seventies<br />
marked a rise in gender studies in other sciences than law as well. (See, e.g., Politica 2–3/1974, for a<br />
symposium on gender studies in political sciences.)<br />
231
chies within the legal system. It favored cross-disciplinary research <strong>to</strong> obtain various<br />
kinds of social data. It stressed the political nature of scholarship and sought <strong>to</strong> make it<br />
openly political, the fundamental purpose being <strong>to</strong> change the legal system and <strong>to</strong><br />
emancipate women from their legal oppression. 386 Feminist jurisprudence assumed systematic<br />
oppression, wanted <strong>to</strong> expose the myth of apolitical research, and sought <strong>to</strong><br />
make scholarship openly political. Just like Marxism, it aimed at emancipating the oppressed<br />
group from its systemic oppression by changing the system. Ideological and<br />
structural fac<strong>to</strong>rs were important for research that emphasized the critical and reformist<br />
aspect of the movements.<br />
Critical gender studies in law were an outcome of the liberalization of women, social<br />
radicalism, and critical scholarship. The interest in the rights of women and the<br />
gender-related social problems arose everywhere hand in hand with the general interest<br />
in social oppression and the rights of the underprivileged. Criticism of the social order<br />
was targeted at the structures of society because, the critics argued, inequality was inherent<br />
in the structures of modern society and the economy. Critical gender studies,<br />
along with other projects for speci<strong>fi</strong>ed social problems, were also an expression of the<br />
social dissatisfaction. The society, and hence the scholarly activity, endeavored <strong>to</strong><br />
achieve better consolidation of rights.<br />
6.5 General problems of jurisprudence<br />
The 1960s and the 1970s were a time of marked social change, and this was also seen in<br />
the changes in the nature of legal problems and the new regulation that followed. Although<br />
a vast amount of new legislation was enacted, the legisla<strong>to</strong>r could not grasp every<br />
new legal problem that came up. Problems in the markets and consumer activity raised<br />
the need for new methods <strong>to</strong> deal with them, and legal scholars contemplated various<br />
questions. Alternative legal scholarship thus flourished in many branches of law, and<br />
became quite popular by the end of the 1970s. Although much of the alternative scholarship<br />
was not particularly radical or critical, the following analysis helps us <strong>to</strong> understand<br />
critical legal scholarship in context; the 1970s marked a general change in legal<br />
scholarship, and the critical scholarship was an extreme cultural expression of the transformation.<br />
Alternative analysis of law evolved for nearly two decades, reaching maturity in<br />
the late 1970s. Stig Jørgensen had already noted by the mid-1960s that the expansion of<br />
commerce had created new legal problems <strong>to</strong> deal with, especially concerning equality.<br />
387 Many problems of contract law thus interested the legal scholars of the 1970s.<br />
Carl Martin Roos, for instance, endorsed a semantic interpretation of legal rules in ac-<br />
386 Anne Hellum, Wenche Kverneland, Kirsten Langseth, Margrethe Lysaker, Kvinnerettslig teori og<br />
me<strong>to</strong>de, Retfærd 10/1979, 75–80, 83.<br />
387 Stig Jørgensen, Aftalen som form, TfR 1965, 406–407.<br />
232
cordance with the empirically veri<strong>fi</strong>able facts of the case <strong>to</strong> make legal decision-making<br />
more realistic. 388 Although he was criticized for not being speci<strong>fi</strong>c enough with his new<br />
methods of interpretation, 389 he worked for a theory of interpretation that would suit the<br />
needs of contemporary society better. 390 Because of the changed social circumstances,<br />
legal scholars often considered an interpretation that would go beyond the letter of the<br />
law and <strong>fi</strong>nd a point of reference from the actual circumstances.<br />
Indeed, the new currents of contract law emphasized the importance of the speci<strong>fi</strong>c<br />
circumstances of the case in legal interpretation and legal decision-making. Legal scholars<br />
argued that standard contracts should be interpreted against the facts of the case <strong>to</strong><br />
guarantee consumer protection, 391 and that aberration from a contract ought <strong>to</strong> be more<br />
flexible on a case basis. 392 Besides developing practical methods for realistic interpretation,<br />
scholars also encouraged empirical and politically-oriented research. 393 In particular,<br />
new legal <strong>fi</strong>elds, such as environmental law, provided fruitful <strong>to</strong>pics for alternative<br />
use of legal sources. 394 The urge for legal studies taking a stand on controversial <strong>to</strong>pics<br />
and for realistic argumentation was a general, though not dominating, trend. Radical<br />
theories, such as Bolding’s described above, were simply extreme presentations of the<br />
general trend.<br />
Marxist legal scholars were not generally bothered by speci<strong>fi</strong>c problems of contract<br />
law because they mostly dealt with general issues of jurisprudence or some other<br />
more general aspects of law. The Finnish legal scholar Thomas Wilhelmsson, however,<br />
argued that the general trend <strong>to</strong> regulate through general clauses transferred power from<br />
the legisla<strong>to</strong>r <strong>to</strong> the judiciary, which was often very conservative. He therefore endorsed<br />
studies on the meaning and interpretation of general clauses so that their purposes<br />
would not be lost in practical cases. 395 The apparent motive behind the realist and Marxist<br />
scholarship was that law was often meant <strong>to</strong> protect the weaker party in contractual<br />
relations, but practical solutions diverged from this. Scholarship began <strong>to</strong> pay more attention<br />
<strong>to</strong> the actual cases and solutions in order <strong>to</strong> analyze the law in action and <strong>to</strong> reveal<br />
the possible de<strong>fi</strong>ciencies and inequalities.<br />
Scandinavian scholars also criticized the courts, even if they were not their primary<br />
concern. Although Scandinavian legal scholars did not attack on the judiciary in such<br />
388 Roos 1972, supra n. 78 at 625–627, 638.<br />
389 Anders Vic<strong>to</strong>rin, Dissens och <strong>to</strong>lkning, SvJT 1973, 57–61.<br />
390 Carl Martin Roos, Behövs det nya grepp i <strong>to</strong>lkningsläran? SvJT 1973, 153–154.<br />
391 Ulf Bernitz, Utvecklingen mot en standardavtalsrätt I: Standardavtalen i rättstillämpningen, SvJT<br />
1972, 401–455; Ulf Bernitz, Utvecklingen mot en standardavtalsrätt II: Avtalsvillkorslagen, SvJT 1974,<br />
81–134; Jan Hellner, Konsumentskydd och generalklausuler, TfR 1976, 145–167.<br />
392 Anna Christensen, Förutsättningar och misstag, TfR 1973, 311–340; Anna Christensen, Regler om<br />
misstag rörande faktiska förhållanden, TfR 1973, 482–513.<br />
393 Jan Hellner, Civilrättsforskningen och framtiden, TfR 1975, 393–401; Jan Hellner, Argumentation de<br />
lege ferenda, SvJT 1975, 401–420.<br />
394 Staffan Westerlund, Miljöfarlig verksamhet: Rättstekniska studier av de centrala tillåtlighetsreglerna i<br />
miljöskyddslagen på grundval av teori och praxis (Lund: P.A. Nordstedt & Söners förlag 1975).<br />
395 Thomas Wilhelmsson, Kontraktsrättens generalklausuler, Retfærd 3/1976, 28–37; Thomas Wilhelmsson,<br />
Kontrakträttens generalklausuler, Oikeus 2/1975, 9–14.<br />
233
a radical way as Finnish legal scholars did, 396 the criticism of inequitable judicial decision-making<br />
and the call for a realistic interpretation referred <strong>to</strong> the notion that courts<br />
were not a progressive or reformist force. Bolding, for instance, argued that legal education<br />
and the fact that judges mostly came from conservative upper class families contributed<br />
<strong>to</strong> this “upper class ideology”. Thus, judicial decision-making was mostly conservative<br />
and had <strong>to</strong> be changed <strong>to</strong> make it more equitable. 397 Traditional scholars, on<br />
the other hand, argued that the critics gave a dis<strong>to</strong>rted and one-sided image of the courts<br />
and could not support their claims with evidence. They argued that, contrary <strong>to</strong> the critical<br />
arguments, judicial decision-making often favored the poor. 398 In addition, Carl<br />
Hamil<strong>to</strong>n wrote that judges often were in contact with the lower social classes. 399 The<br />
controversial opinions about the judges reflected the controversies with respect <strong>to</strong> legal<br />
scholarship. Critical scholars thought that the judges favored the upper classes and<br />
could not understand the problems of the lower classes, whereas traditional scholars<br />
emphasized laws that balanced the problems and the process.<br />
Even if the problems regarding the legal process were noted, critical scholars did<br />
not often study them. An exception was the Danish Henrik Zahle. During the 1970s, he<br />
had criticized the law of evidence by arguing that legal language masked the true meaning<br />
of the concepts and thus prevented ordinary people from understanding law, 400 and<br />
that the social ideology and consciousness affected the interpretation of evidence. 401 In<br />
1976, he published his voluminous doc<strong>to</strong>ral dissertation on legal evidence, which was<br />
nearly rejected and in which he sought <strong>to</strong> neutralize the impact of ideologies on the interpretation<br />
of evidence. 402 In short, Zahle argued that the traditional theory of the law<br />
of evidence left considerable room for subjective interpretation and evaluation because<br />
it was based on a calculus of probabilities. To correct the situation, he argued, there<br />
should be no formal rules concerning either the procedural or material side of the evidence.<br />
Rather, the parties <strong>to</strong> a case should present all the evidence possible without restriction,<br />
and the case should be decided on the basis of comprehensive evaluation of<br />
the evidence presented and the behavior of the parties during the whole process. 403 Although<br />
Zahle started from the premises of traditional legal scholarship, his theory was a<br />
396 In Finland there was indeed a radical attack on the judiciary, as will be seen in the next chapter. Finnish<br />
traditional legal scholar Erkki Havansi lamented in a Swedish law review <strong>to</strong> his Scandinavian colleagues<br />
about the radical criticism of the courts and the undemocratic manner the reform was progressing.<br />
(Erkki Havansi, Finlands doms<strong>to</strong>lar inför omvälvning? SvJT 1973, 63–78.)<br />
397 Per Olof Bolding, Domarens sociala tillhörighet, SvJT 1974, 459–473.<br />
398 Bertil Adèll, Ej mindre den fattige än den rike, SvJT 1973, 331–340.<br />
399 Carl Hamil<strong>to</strong>n, Domarkårens isolering ─ en enkät, SvJT 1973, 525–528.<br />
400 Henrik Zahle, Om processuel forkyndelse, Juristen 1973, 307–308.<br />
401 Zahle 1975, supra n. 172 at 250.<br />
402 Zahle 2010, supra n. 105 at 77–78. Zahle was an openly leftist legal scholar and held a course on procedural<br />
law, the methods of which have been described as an alternative. (Id. at 62, 73–74.)<br />
403 Henrik Zahle, Om det juridiske bevis (København: Juristforbundets Forlag 1976), esp. at 1–4, 126,<br />
138–139, 152–153, 160–161, 230, 244–247, 299–304, 396–401, 409–445, 485–491, 573–586, 641–648,<br />
691–693. It is very dif<strong>fi</strong>cult <strong>to</strong> explain the theory briefly because it is very complicated and covers nearly<br />
eight hundred pages, and, furthermore, because in order <strong>to</strong> fully understand it one would have <strong>to</strong> know a<br />
lot about the Scandinavian law of evidence in the 1970s. In any event, his purpose was <strong>to</strong> elaborate a<br />
theory on the evaluation of evidence which would minimize the room for subjective interpretations.<br />
234
kind of fundamental criticism since he criticized the whole basis of the law of evidence<br />
and sought <strong>to</strong> replace it with an alternative system. He noted that ideologies and subjective<br />
values had a signi<strong>fi</strong>cant effect on law, but differed from the general trend of critical<br />
scholarship by trying <strong>to</strong> take ideology out from the legal process instead of making it<br />
open.<br />
In a certain sense, Zahle was a moderate fact skeptic 404 because he criticized the<br />
traditional notion of the neutral observation of facts. He thought that the traditional<br />
methods of evaluating facts were incapable of making objective observations and<br />
sought <strong>to</strong> elaborate a theory that could overcome the problems of these methods. However,<br />
Bolding criticized his theory for being presumptive and ambiguous and also leading<br />
exactly <strong>to</strong> the same problems it tried <strong>to</strong> avoid. 405 Criticism was always easy, but<br />
constructing alternative theories was not. Nevertheless, Zahle’s fact skepticism reflected<br />
the general notion that facts were always related <strong>to</strong> values, and his critical theory sought<br />
<strong>to</strong> avoid this problem.<br />
The problem of facts and values became apparent on several occasions concerning<br />
practical legal problems. A problem arose upon a proposition for a foundation for employees<br />
<strong>to</strong> secure better wages. Stig Strömholm argued that the proposition violated the<br />
fundamental principles of Swedish law <strong>to</strong> the extent that if the law was <strong>to</strong> be enacted, it<br />
was <strong>to</strong> be done in accordance with the constitutional order. 406 Other legal scholars did<br />
not like Strömholm’s formalist interpretation. Joachim Nelhans opined that<br />
Strömholm’s interpretation reflected a conservative world view, and argued that the<br />
Constitution should be interpreted in accordance with contemporary society and thus the<br />
employee foundation was legal. 407 Marxist legal scholar Per Eklund also criticized<br />
Strömholm for his conservative natural law theory, arguing that the problem revealed<br />
how the economic system determined the substance of the law. 408 Fritz Kaijser, on the<br />
other hand, supported Strömholm’s view and noted that there were serious legal problems<br />
in this regard, even if politically he agreed with Eklund. 409<br />
404 “Fact skepticism” was another strand of critique of judicial decision-making by the American legal<br />
realism. The other was “rule skepticism”. According <strong>to</strong> the <strong>fi</strong>rst, the facts of a case were uncertain <strong>to</strong> the<br />
extent that they could be construed in various ways in order <strong>to</strong> reach a desirable decision. Despite how<br />
certain the legal rules were, the result was thus always uncertain. (See, e.g., Jerome Frank, Law and the<br />
Modern Mind (London: Stevens & Sons 1949), viii–ix.) Zahle did not approve extreme fact skepticism<br />
because he thought that there were certain rules that had <strong>to</strong> be followed in deciding the facts. (Zahle 1976,<br />
supra n. 403 at 64–65.)<br />
405 Per Olof Bolding, Bevisprövning utan sannonlikhetuppskattning? TfR 1978, 535–538. In addition,<br />
Zahle labelled Eckhoff, Ekelöf, and Bolding as the representatives of the Swedish-Norwegian theory of<br />
law of evidence that was, in his view, the dominant theory, and <strong>to</strong> which his theory was an alternative.<br />
(Zahle 1976, supra n. 403 at 230, 485, 648.) Bolding, on the other hand, did not think that this was true<br />
because there were differences in the theories of the three scholars. (Bolding 1978, id. at 530.)<br />
406 Stig Strömholm, Förslaget om s.k. löntagarfonder i rättslig belysning, SvJT 1976, 468. According <strong>to</strong><br />
Strömholm, general rules of expropriation and taxation did not apply <strong>to</strong> this situation. Therefore the question<br />
was of fundamental principles of law implicitly protected by the Constitution.<br />
407 Joachim Nelhans, De Meidnerska löntagarfonderna i Strömholms rättsliga belysning, SvJT 1976, 649.<br />
408 Per Eklund, Juridiken som samhälleligt styrmedel, SvJT 1976, 586–588, 594.<br />
409 Fritz Kaijser, Om de s.k. löntagarfondernas grundlagsenlighet ─ ett genmäle, SvJT 1976, 650–651,<br />
654–656.<br />
235
Various problems arose in this brief debate. Strömholm did not take a stand on the<br />
relation between law and power. He regarded the protection of private property as of<br />
such importance for the legal system that it was <strong>to</strong> be constitutionally protected. Nelhans,<br />
on the other hand, emphasized different aspects. For him, the rights of the workers<br />
in a joint s<strong>to</strong>ck company were equal <strong>to</strong> those of the s<strong>to</strong>ck holders and had <strong>to</strong> be protected<br />
<strong>to</strong>o. From the Marxist perspective of Eklund, the problem represented the struggle<br />
between social, political, and economic power. He saw that law was an outcome of the<br />
struggle and so was legal scholarship. Critical legal scholars stressed the connection<br />
between law and politics and the fact that scholars often reproduced the status quo if<br />
they were not aware of the political element in law and legal scholarship. The fundamental<br />
differences in interpretation between the critical and traditional followed the<br />
fundamental differences in perceiving the problems.<br />
For alternative scholarship, the relationship between law and personal biases was<br />
of fundamental importance. Torstein Eckhoff, who could be de<strong>fi</strong>ned as a sociological<br />
scholar and a neo-realist, noted that it was obvious that personal biases affected judicial<br />
decision-making and legal scholarship but it was dif<strong>fi</strong>cult <strong>to</strong> specify the degree and nature<br />
of the impact. 410 Ole Krarup presented a somewhat more radical <strong>to</strong>ne in his criticism<br />
of judicial decision-making, arguing that the courts could often reach their decision<br />
arbitrarily and then present it in rational terms. The extra-legal reasons behind the<br />
decision were camouflaged by legal rhe<strong>to</strong>ric and the decision was simply written in<br />
formalist terms <strong>to</strong> appear neutral and legally sound. 411 Since Krarup’s critique was<br />
based on an actual case where he was one of the representatives of the losing side, 412 it<br />
is quite easy <strong>to</strong> understand his frustration. Nevertheless, the critical opinion was that<br />
judicial decision-making was mostly personal and the traditional methods permitted the<br />
courts <strong>to</strong> hide the real motives of a decision behind the legal language. Although many<br />
legal scholars held realist notions on the issue, radical criticism was rare.<br />
The problem of the nature of law and legal scholarship remained signi<strong>fi</strong>cant, and<br />
in the late 1970s, several efforts <strong>to</strong> elaborate comprehensive conceptions of it were<br />
made. In general, scholars were interested in alternatives <strong>to</strong> traditional scholarship so<br />
that legal studies could contribute <strong>to</strong> the general policy-making. 413 More theoretical<br />
analyses were also popular. Lauridsen sought <strong>to</strong> construct a general doctrine of jurisprudence<br />
by reforming the tradition, 414 and Sundby and Eckhoff constructed a systemic<br />
410 Eckhoff 1976, supra n. 349 at 18, 26–27, 47–49, 56–57.<br />
411 Ole Krarup, Om retlige og begreber retsgrundsætninger, Juristen og økonomi 1979, 461–465, 475.<br />
412 The article considered the Christiania Case of 1978, which concerned the status of the free <strong>to</strong>wn of<br />
Christiania in Copenhagen, which had been founded in the early 1970s as a free <strong>to</strong>wn area. Krarup was<br />
one of the representatives of Christiania in the case, in which the Danish Supreme Court eventually entitled<br />
the state <strong>to</strong> alter the conditions it had provided for the city in 1971. However, the state did not intrude<br />
in the city administration, probably because of the public support for the <strong>to</strong>wn, and has let the city flourish<br />
since.<br />
413 Staffan Westerlund, Rättsvetenskap inom tvärvetenskaplig forskning, TfR 1976, 117–124.<br />
414 Preben Stuer Lauridsen, Retslæren (København: Akademisk forlag 1977). In a critical review of the<br />
book, Jareborg argued that Lauridsen did not give an accurate account of previous legal theory, was ambiguous<br />
with his words and concepts, concentrated on Danish discussion, neglected many theories of law,<br />
236
theory, according <strong>to</strong> which law was a part of the social system. 415 In 1977, Danish sociological<br />
legal scholar Jørgen Dalberg-Larsen published his massive study Retsvidenskaben<br />
som samfundsvidenskab (Legal Scholarship as a Social Science), in which he<br />
analyzed the efforts <strong>to</strong> bring jurisprudence closer <strong>to</strong> social science during the previous<br />
two hundred years and concluded with the recent debates on the problem. According <strong>to</strong><br />
him, changes in society, the economy, politics, and scholarship caused new kinds of<br />
legal problems and thus new needs for legal scholarship, which therefore had <strong>to</strong> participate<br />
in political discourse, and yet retain its neutral, even scienti<strong>fi</strong>c nature. Thus, in order<br />
<strong>to</strong> respond <strong>to</strong> contemporary problems but remain neutral and rational at the same<br />
time, legal scholarship had <strong>to</strong> adopt the methods of social science without however<br />
completely abandoning traditional doctrinal analysis. 416<br />
Dalberg-Larsen’s analysis was a synthesis and combination of the recent, and older,<br />
efforts <strong>to</strong> integrate social science in<strong>to</strong> legal scholarship and make it more realistic.<br />
He conducted a thorough examination on the issue but did not bring much new insight<br />
<strong>to</strong> it. Strömholm thus criticized him for not being constructive and argued that social<br />
sciences were only rarely useful <strong>to</strong> legal scholarship. 417 The situation had not changed<br />
much during the decade of debates. There were still those who argued that elements of<br />
social science had <strong>to</strong> be included in legal scholarship in order <strong>to</strong> make it correspond<br />
with reality and <strong>to</strong> make it more “scienti<strong>fi</strong>c”. Then there were those who thought that<br />
legal analysis was mostly doctrinal and should not be mixed with politics or social science<br />
because otherwise the scholarship would lose its rationality. According <strong>to</strong> the traditional<br />
view, the social sciences were only of very limited use <strong>to</strong> legal scholarship.<br />
Traditional and alternative legal scholars perceived legal problems differently and thus<br />
provided different answers <strong>to</strong> them.<br />
6.6 The rules-principles distinction<br />
During the debates on the nature and methods of legal scholarship, theoretical problems<br />
with practical relevance were also discussed. One of these was the construction of a<br />
legal rule and its speci<strong>fi</strong>c meaning in actual situations. This is important from a modern<br />
perspective because the origins of the distinction between legal rules and principles in<br />
Scandinavian legal scholarship can be seen in it. Scandinavian legal scholars naturally<br />
followed international trends, but they adapted the literature <strong>to</strong> their context and shaped<br />
and ignored several interesting problems. (Nils Jareborg, Litteratur [Retslæren], TfR 1979, 333–340.)<br />
Lauridsen replied that Jareborg had misunders<strong>to</strong>od his points. (Preben Stuer Lauridsen, Kommentar til en<br />
anmeldelse af “Retslæren”, TfR 1979, 598–603.)<br />
415 Torstein Eckhoff & Nils Kristian Sundby, Rettssystemer: Systemteoretisk innføring i retts<strong>fi</strong>loso<strong>fi</strong>en<br />
(Oslo: Tanum-Norli 1976).<br />
416 Jørgen Dalberg-Larsen, Retsvidenskaben som samfundsvidenskab: Et retsteoretisk tema i his<strong>to</strong>risk og<br />
aktuel belysning (København: Juristforbundets forlag 1977), esp. at 21–27, 476–477, 491–503, 534–549.<br />
417 Stig Strömholm, Hur många rättsvetenskaper <strong>fi</strong>nns det? TfR 1978, 625, 644, 646, 653.<br />
237
the theories <strong>to</strong> <strong>fi</strong>t their needs. The problem thus illuminates several important aspects of<br />
the alternative legal scholarship of the 1970s.<br />
As noted, the Danish legal philosopher Alf Ross was considered the most influential<br />
legal theorist in the 1970s. Regarding the conception of legal rules, <strong>to</strong>o, it was<br />
Ross’s semantic-logical analysis of the structure of legal norms 418 that the young legal<br />
scholars attacked. The young Norwegian legal scholars Nils Kristian Sundby and Ole<br />
Rømer Sandberg were not pleased with Ross’s deontic analysis of norms, arguing that<br />
he had been unable <strong>to</strong> construct a concept of legal rules which was realistic and de<strong>fi</strong>nitive<br />
in various situations. 419 Alternative legal scholars abhorred logic that disregarded<br />
actual circumstances and focused on the normative aspects of legal rules. Even though<br />
Sandberg’s and Sundby’s analysis was philosophical, it nonetheless obviously sought <strong>to</strong><br />
place legal rules in a more social context.<br />
The interest in legal sociology contributed <strong>to</strong> the need <strong>to</strong> create a concept of the<br />
legal rule that would <strong>fi</strong>t in<strong>to</strong> multi-disciplinary research and the social reality. Thus,<br />
there were problems regarding rules, their application in adjudication, and their explanation<br />
in legal research. Sundby had developed his conception of norm in 1974. He also<br />
elaborated a distinction between legal rules and principles which he then called “guiding<br />
standards” (retningslinjer). 420 The construction of the concept of legal rule and its particular<br />
meaning in actual cases thus meant the beginning of the discourse on legal rules<br />
and principles and their signi<strong>fi</strong>cance in judicial decision-making. 421 The problem related<br />
<strong>to</strong> the debates on legal reasoning and the use of arguments on facts and values.<br />
418 Alf Ross, Directives and Norms (London: Routledge & Kegan Paul 1968).<br />
419 Ole Rømer Sandberg & Nils Kristian Sundby, Språk og direktiver, TfR 1970, 384–439; Ole Rømer<br />
Sandberg & Nils Kristian Sundby, Direktiver og logikk, TfR 1971, 17–68. Lauridsen criticized the criticism<br />
of Sandberg and Sundby. (Preben Stuer Lauridsen, Kommentarer til et normbergeb, TfR 1972, 99–<br />
111.)<br />
420 The word principle was not originally applied because it was used in so many different connections.<br />
Therefore, Sundby used the Norwegian word retningslinje <strong>to</strong> describe principles in legal decision-making.<br />
In an English article, Eckhoff used the term guiding standard which was, according <strong>to</strong> him, the most appropriate<br />
English translation for retningslinje or German Richtlinie. (Torstein Eckhoff, Guiding Standards<br />
in Legal Reasoning, 29 Current Legal Problems 205, 206–207 (1976).) In Finland, the term “guiding<br />
standard” was <strong>fi</strong>rst translated as oikeusohje (Timo Konstari, Harkintavallan väärinkäytöstä: Tutkimus<br />
tarkoitussidonnaisuudesta hallin<strong>to</strong>viranomaisten harkintavallan rajoitusperiaatteena (<strong>Helsinki</strong>: Suomalainen<br />
lakimiesyhdistys 1979), 68), and later as suuntaviiva (Aulis Aarnio, Laintulkinnan teoria (Juva:<br />
WSOY 1989), 79). Eriksson used the Swedish terms riktlinje and princip. (Lars D. Eriksson, Om olika<br />
argumentationsmodeller, JFT 1979, 35–37.) Since then, however, the word principle (periaate) has become<br />
the normal term.<br />
421 The discussion on legal principles is commonly linked <strong>to</strong> the names of Ronald Dworkin and Robert<br />
Alexy. In the late 1960s and early 1970s, it was particularly Dworkin whose literature stimulated the<br />
discussion in the Nordic Countries, and the scholars commented upon his work while elaborating their<br />
ideas on legal principles. Robert Alexy, a German, entered the stage later, but in Germany there seem <strong>to</strong><br />
be deeper roots for the discussion on principles in judicial decision-making. The pioneer was Josef Esser,<br />
whose <strong>fi</strong>rst contribution <strong>to</strong> the subject was probably his book of 1956 (Josef Esser, Grundsatz und Norm<br />
in der richterlichen Fortbildung des Privatrechts (Tübingen 1956).) This, however, is not within our ambit.<br />
Oddly enough, there seems <strong>to</strong> be no reference <strong>to</strong> Esser in Scandinavian legal literature on principles in<br />
the 1970s, although there were references <strong>to</strong> him in other connections.<br />
This raises the interesting question of where the most signi<strong>fi</strong>cant influences <strong>to</strong> Scandinavian legal<br />
scholarship came from. It seems that during the <strong>fi</strong>rst two postwar decades, influences came mostly, in<br />
addition <strong>to</strong> Scandinavian literature, from the United States and England, and since the mid-sixties Germa-<br />
238
The problem of rules and standards related <strong>to</strong> the nature of judicial decisionmaking.<br />
Sundby argued that there were rules that gave the solution for a legal problem<br />
directly, and there were also guiding standards which merely indicated the fac<strong>to</strong>rs which<br />
were essential in deciding the case and provided arguments for the decision. A conflict<br />
between rules was decided by prioritizing them, whereas a conflict between guiding<br />
standards was decided by weighing the arguments the standards invoked. 422 Eckhoff<br />
also emphasized the role of the guiding standards, writing that a judicial decision could<br />
always be made <strong>to</strong> appear as a logical deduction, even if it in fact was arbitrarily made.<br />
Therefore, the concept of guiding standards could help in understanding the particular<br />
fac<strong>to</strong>rs in legal reasoning. 423 Sundby and Eckhoff used the concept of guiding standards<br />
in pointing out the inability of rules <strong>to</strong> provide a de<strong>fi</strong>nite solution in a particular case<br />
and the inevitability of interpretation and evaluation. To them, guiding standards were<br />
legal standards which laid out the relevant fac<strong>to</strong>rs of a case and the arguments pertaining<br />
there<strong>to</strong>. The standards were thus theoretical gates through which one could bring<br />
social data in<strong>to</strong> legal arguments while keeping their nature legal.<br />
The need for the concept of guiding standards divided legal scholars. Lauridsen<br />
argued that the distinction was inconsistent and did not bring much new <strong>to</strong> the alreadyexisting<br />
distinction between clear rules and rules that were open <strong>to</strong> interpretation. 424<br />
Sundby replied that guiding standards pointed out the facts which were relevant in<br />
reaching a decision, and vague rules merely completed them. 425 Nils Jareborg, on the<br />
other hand, argued that guiding standards were unclear and useless in practical reasoning,<br />
426 <strong>to</strong> which Eckhoff replied that they were useful because they pointed out relevant<br />
facts and values which otherwise would have been missed. 427 It is obvious that more<br />
ny made some kind of “come-back” in Scandinavian legal literature, although it never acquired the signi<strong>fi</strong>cant<br />
position it had had before the War. This has also been Strömholm's view. He writes that there was<br />
nothing particularly new in German legal scholarship during the <strong>fi</strong>rst twenty years after the War, and the<br />
interest seems <strong>to</strong> have arisen when German scholarship reoriented itself theoretically. (Stig Strömholm,<br />
Anmälan [Rechtsystem und Rechtsdogmatik], SvJT 1975, 295–296.) One should not, of course, exaggerate<br />
or downplay the signi<strong>fi</strong>cance of any particular country, because different scholars were influenced by<br />
different sources. There clearly was a shift in influence, but it was not complete.<br />
In any event, it seems that the modern theory of principles in legal decision-making has two<br />
branched roots. The origins of the Dworkinian theory are in the American jurisprudence of the 1950s and<br />
1960s. On the other hand, there is the German theory which also has its origins in the 1950s. These two<br />
branches then collided in the 1970s and 1980s. The purpose here is not <strong>to</strong> trace the origins of the theories<br />
of legal principles, however, but <strong>to</strong> analyze the meaning and purpose of the principles issue for the legal<br />
debates of the 1970s. In addition, the theme was brought up in Norway by Ragnar Knoph in 1939 (Ragnar<br />
Knoph, Rettslige standarder: Særlig grunnlovens § 97 (Oslo: Grøndahl & Søn 1939)), which was widely<br />
read in Scandinavia.<br />
422 Sundby 1974, supra n. 108 at 190–306, esp. at 197–204, 254–262, 273–274, 285–287. Eckhoff had<br />
brought up problems regarding guiding standards in judicial decision-making in 1971 without, however,<br />
any detailed analysis. (Eckhoff 1971, supra n. 91 at 16, 24–25.)<br />
423 Eckhoff 1976, supra n. 420 at 205–208, 214–218. Sundby and Eckhoff stressed guiding standards in<br />
their systemic theory of law. (Eckhoff & Sundby 1976, supra n. 415 at 128–156.)<br />
424 Preben Stuer Lauridsen, Om jus og normer, TfR 1978, 125–128.<br />
425 Nils Kristian Sundby, Sondringen mellom regler og retningslinjer ─ en replikk, TfR 1978, 140–145, n.<br />
7.<br />
426 Nils Jareborg, Regler och riktlinjer, TfR 1979, 387–388, 394–395.<br />
427 Torstein Eckhoff, Retningslinjer og “tumregler”, TfR 1980, 152–163.<br />
239
traditional scholars were interested in de<strong>fi</strong>nite concepts and clear theories, whereas alternative<br />
scholars were interested in the relationship between argumentation, interpretation,<br />
and social circumstances. Since guiding standards emphasized the circumstances<br />
of a particular case, they interested legal scholars who stressed the role of values and<br />
policies in judicial decision-making.<br />
Guiding standards were both a way of pointing out how personal biases did in fact<br />
influence legal reasoning and a method of getting policy considerations in<strong>to</strong> legal argumentation<br />
in a controlled and orderly fashion. Aubert, for instance, brought a Marxist<br />
perspective <strong>to</strong> the issue, arguing that the influence of values entered law through legal<br />
standards. In criminal law adjudication, values played a role when, for example, a judge<br />
had <strong>to</strong> decide whether the accused posed a threat of forthcoming criminal behavior, and<br />
thus criminal adjudication was not simply deductive logic. In addition, he wrote, there<br />
were many open standards in law, such as “the bene<strong>fi</strong>t of a child”, which all left room<br />
for interpretation and values. 428 Furthermore, Sundby had endorsed thorough analyses<br />
of the legal system in order <strong>to</strong> change it 429 and an analysis of the still relevant natural<br />
law in contemporary law, 430 and was also actively involved in critical legal scholarship.<br />
431 Guiding standards thus suited his efforts <strong>to</strong> make legal scholarship more realistic<br />
and social well without however transforming it in<strong>to</strong> social science or politics.<br />
The distinction between rules and principles emerged at a time when strict legal<br />
positivism was criticized and the need for a social theory of law was serious. The distinction<br />
thus corresponded with the idea of constructing the concept of a norm in a way<br />
that would be accordant with the functions of law in society. Principles were a way <strong>to</strong><br />
avoid strict legal positivism and natural law, and brought rationality in<strong>to</strong> legal reasoning.<br />
As the awareness of discretion in judicial decision-making had increased, it became<br />
necessary <strong>to</strong> develop a theory that would bring order in<strong>to</strong> legal reasoning. Furthermore,<br />
principles made it possible <strong>to</strong> bring social data and policy considerations in<strong>to</strong> law<br />
through legal discourse while keeping the discourse “legal.” With principles, one could<br />
criticize judicial decision-making, strict legal positivism, and natural law without however<br />
trashing law and legal scholarship from a purely subjective perspective.<br />
6.7 Marxist legal scholarship in the late 1970s<br />
During the 1970s, Marxist legal scholarship had developed in<strong>to</strong> a lively literature, and a<br />
law journal was founded <strong>to</strong> publish Marxist legal literature. The scholarship, however,<br />
was not very innovative, mainly simply analyzing legal phenomena from a materialistic<br />
perspective and pointing out the connection between the economic system and the law.<br />
428 Aubert 1976, supra n. 178 at 20–22.<br />
429 Sundby 1973, supra n. 109 at 714–715.<br />
430 Sundby 1975, supra n. 85 at 343–344, 353–354.<br />
431 Sundby 1976, supra n. 38 at 9–17.<br />
240
Not surprisingly, then, Lauridsen criticized Marxist legal scholarship for being merely a<br />
theory of law and not providing <strong>to</strong>ols for analyzing fundamental legal concepts, nor<br />
being capable of providing the means of knowing what was valid law or how legal<br />
problems ought <strong>to</strong> be solved. 432 Furthermore, as we saw, the 1970s was in general a turn<br />
<strong>to</strong>wards more conservative social politics. The combination of scholarship and politics<br />
had always been problematic, and the change in the times only made the situation harder.<br />
433 Marxist legal scholars had <strong>to</strong> reorient their scholarship <strong>to</strong> <strong>fi</strong>nd more relevance in<br />
the academic and practical world. Many of the young critical legal scholars who wrote<br />
articles in the early 1970s completed doc<strong>to</strong>rates later in the decade, and their theoretical<br />
orientation often provided a background for the more comprehensive studies. Moreover,<br />
Marxism had become a jurisprudential school, which meant that its proponents talked<br />
more about its theories and concepts. The late 1970s thus meant a signi<strong>fi</strong>cant development<br />
for Marxist legal scholarship.<br />
Dag Vic<strong>to</strong>r was one of the <strong>fi</strong>rst <strong>to</strong> contemplate the potential of Marxism in legal<br />
scholarship. His doc<strong>to</strong>ral dissertation from 1977 dealt with the old problem of whether<br />
legal scholarship could be regarded as science. According <strong>to</strong> him, law was a system<br />
within the social system. The legal system was also, <strong>fi</strong>rst, a structure consisting of various<br />
sub-structures, such as social ideology, language, and speech, and second, both an<br />
ideological and social system. Law was indeterminate, but because of the structural<br />
connections legal rationality was always system-bound. Thus, social ideology was more<br />
important than individual ideology, and legal scholars had <strong>to</strong> be aware of the social ideology<br />
in order <strong>to</strong> make legal scholarship more “scienti<strong>fi</strong>c”. 434 Vic<strong>to</strong>r was distancing<br />
himself from orthodox, materialist Marxism and was moving <strong>to</strong>ward a structural, systemic<br />
theory. The criticism of the possibility of scienti<strong>fi</strong>c objectivity and the emphasis<br />
on the connection between ideology and law was evident. Vic<strong>to</strong>r’s structuralist theory<br />
was an effort <strong>to</strong> combine Marxist theory of law with the recent legal debates and <strong>to</strong><br />
adapt it <strong>to</strong> a theory of law and legal scholarship.<br />
The theory brought up interesting questions on the nature of legal scholarship and<br />
Marxist legal scholarship. Traditional scholars did not pay much attention <strong>to</strong> the<br />
book. 435 Marxist scholars, however, were more interested in it, and their responses illuminate<br />
the controversies within the school. Peter Blume criticized Vic<strong>to</strong>r for bourgeois<br />
legal scholarship, noting that Vic<strong>to</strong>r had not considered dialectical analysis of the development<br />
of legal scholarship, had an idealistic conception of scholarship, and had<br />
detached his theory from social reality. 436 Vic<strong>to</strong>r replied that Marxism was not simply<br />
materialism, and because there was no uniform basis for it, there was no point in trying<br />
<strong>to</strong> create one interpretation but rather <strong>to</strong> construct various interpretations. Furthermore,<br />
Vic<strong>to</strong>r argued, the theory explained false consciousness, covered the his<strong>to</strong>rical context<br />
432 Lauridsen 1977, supra n. 414 at 110–112.<br />
433 See supra notes 191–193 and accompanying text.<br />
434 Dag Vic<strong>to</strong>r, Rättssystem och vetenskap: Studier kring en analysmodell för ideologiska system (S<strong>to</strong>ckholm:<br />
P.A. Norstedt & Söners förlag 1977), esp. at 13–17, 102–126, 194–195, 203–232, 261–267.<br />
435 Tore Strömberg, Litteratur [Rättssystem och vetenskap], SvJT 1978, 135–138.<br />
436 Peter Blume, Retsvidenskabens problematik, Retfærd 8/1978, 100–104.<br />
241
of legal phenomena, analyzed the reciprocity between the economy and law, was neutral<br />
with respect <strong>to</strong> the models of interpretation, and was aware of the difference between<br />
perception and analysis. 437 Vic<strong>to</strong>r had diverged from economic determinism and sought<br />
<strong>to</strong> place the theory in<strong>to</strong> a more complicated framework, but the more orthodox Marxists<br />
thought that he was giving in <strong>to</strong> the traditional legal scholarship. The time had come <strong>to</strong><br />
specify the premises of Marxist theory, since it had been criticized for its economic determinism<br />
and for turning legal scholarship in<strong>to</strong> ideology. Critical legal scholars were<br />
aware of the de<strong>fi</strong>ciencies of their theories, and began <strong>to</strong> develop them further. Marxism<br />
as such was not yet out of fashion; it was just <strong>to</strong> be modernized.<br />
Sociology of law was also a context in which Marxist theory had signi<strong>fi</strong>cance. The<br />
Swedish Håkan Hydén conducted a thorough analysis of the social functions of law<br />
from a Marxist perspective in his doc<strong>to</strong>ral dissertation, Rättens samhälleliga funktioner<br />
(The Social Functions of Law). He also began from the premise that law was in an elementary<br />
relation <strong>to</strong> society. The purpose of law was <strong>to</strong> mediate the fundamental functions<br />
of society, namely, production, distribution, and consumption, as well as the practices<br />
which executed the fundamental functions, meaning the economy, politics, ideology,<br />
and scholarship. Thus, law reproduced the fundamental social functions and made<br />
them seem natural. It also had an independent function, but this was preconditioned by<br />
the fundamental functions. 438 Hydén relied heavily on Althusserian theory, representing<br />
thus a structuralist interpretation of Marxism. Although economic fac<strong>to</strong>rs were emphasized,<br />
they and law existed within a complicated system of social structures. The theory<br />
was somewhere between legal sociology and theory, and involved many contemporary<br />
legal <strong>to</strong>pics.<br />
In the pursuit of a vital critical theory of law, critical scholars became more interested<br />
in the relevance of Marxist theory <strong>to</strong> modern law and legal scholarship. The Swedish<br />
scholar Anders Fogelklou noted that Marxism could be merely used in partial criticism<br />
of speci<strong>fi</strong>c branches of law. 439 The Finnish scholar Markku Kivinen criticized Fogelklou’s<br />
analysis because the relations between the rule of law and the form of law on<br />
the one hand, and between his<strong>to</strong>rical materialism and criticism of political economy on<br />
the other, were lost. Hence the meaning of criticism was also lost. 440 In the late 1970s,<br />
Marxist legal scholars began <strong>to</strong> debate the potentiality and methods of critical theory.<br />
Since Marx himself never wrote a speci<strong>fi</strong>c theory of law, the construction of such a theory<br />
from his voluminous literature was dif<strong>fi</strong>cult and required interpretation.<br />
In a comprehensive treatise on various forms of Marxist theory, Fogelklou analyzed<br />
the critical potentiality of Marxism and its possible consequences. After examining<br />
the theories of Pashukanis, Hegel, and Marx, he noted that the theory was relatively<br />
ambiguous as <strong>to</strong> the ways the revolutionary u<strong>to</strong>pia was <strong>to</strong> be achieved. Marxism was<br />
437 Dag Vic<strong>to</strong>r, Kommentarer i anslutning til en anmälan, Retfærd 8/1978, 109–116, 122.<br />
438 Håkan Hydén, Rättens samhälleliga funktioner (Lund: Studentlitteratur 1978), esp. at 16–32, 83–88,<br />
120–122, 127–134, 195–202, 214–217, 235, 364–379.<br />
439 Anders Fogelklou, Marx och rättsteorin, Retfærd 7/1978, 6–28.<br />
440 Markku Kivinen, Vad handlar Wajdas <strong>fi</strong>lm om? Randanmärkningar till Fogelklous artikel i Retfærd<br />
nr. 7, Retfærd 8/1978, 94–98.<br />
242
skeptical of changes through law, and thus its revolutionary potential was meager. 441<br />
Fogelklou’s interpretation was appreciated in general, although it was noted that he did<br />
not pay attention <strong>to</strong> the difference between political and theoretical aspects of the theories.<br />
442 The purpose was <strong>to</strong> contribute <strong>to</strong> the contemporary efforts at sorting out the relevance<br />
of Marxist theory <strong>to</strong> modern jurisprudence by analyzing it and its interpretations<br />
in detail. The intention was obviously <strong>to</strong> understand the various forms of Marxist jurisprudence<br />
and <strong>to</strong> contribute <strong>to</strong> the understanding of the basis of critical theory.<br />
Despite the rigorous examination, Fogelklou’s contribution <strong>to</strong> critical scholarship<br />
was rather in the fact that it exposed the differences between varying interpretations.<br />
Three young Finnish critical legal scholars, Eero Backman, Markku Kivinen, and Juha<br />
Pöyhönen, argued that, despite the respectful work, the book was full of misinterpretations<br />
and flaws. They argued that Fogelklou was ambiguous with his concepts, neglected<br />
several relevant problems, and did not paid due attention <strong>to</strong> the actual meaning of<br />
Marx’s writings. 443 As the theorizing about Marx went further, differences between the<br />
scholars became more evident. Scholars disagreed on the interpretations, depending on<br />
their reading and their scholarly ambitions. Finnish scholars were more optimistic on<br />
the potentiality of Marxist and Soviet theory than their Scandinavian colleagues. Nevertheless,<br />
scholars did not want <strong>to</strong> reduce Marxism <strong>to</strong> economic determinism or <strong>to</strong>tal criticism,<br />
but wanted <strong>to</strong> sort out its particular meanings and usability in constructing a critical<br />
legal theory.<br />
The dialogue between traditional and Marxist legal scholarship also became more<br />
serious when the critical scholars began <strong>to</strong> explicate their theoretical foundations. Torben<br />
Wanscher elaborated a theory of Marxism, which focused on the various aspects of<br />
society. According <strong>to</strong> him, it was important <strong>to</strong> understand the social <strong>to</strong>tality that came<br />
in<strong>to</strong> being through the dialectics of the his<strong>to</strong>ry of social conflicts. Since a scholar was<br />
both a product of and an ac<strong>to</strong>r within the society, and law was partially subjected <strong>to</strong> and<br />
relatively au<strong>to</strong>nomous of the social <strong>to</strong>tality, it was important <strong>to</strong> study the aspects of the<br />
functions of law within the various social sec<strong>to</strong>rs and <strong>to</strong> criticize the difference between<br />
the ideal and the real. 444 Here, <strong>to</strong>o, the purpose was <strong>to</strong> point out the nuances of critical<br />
theory and the fact that one should not focus simply on economic repression. Reflecting<br />
the retreat from orthodox Marxism and determinism, many scholars began <strong>to</strong> view law<br />
as an outcome of the dialectical his<strong>to</strong>ry of class conflict, not just a <strong>to</strong>ol of oppression.<br />
Class conflict was in any case a major part of Marxist legal theory. It was also central<br />
<strong>to</strong> Wanscher’s his<strong>to</strong>rical study on the freedom of assembly of organized workers in<br />
Denmark in the 1870s. Wanscher sought <strong>to</strong> indicate that the freedom of assembly was<br />
restricted beyond the constitutional boundaries because of political motives, and that the<br />
courts had legitimized this practice. Class conflict was thus an essential aspect in de<strong>fi</strong>n-<br />
441 Anders Fogelklou, Den orättfärdiga rätten: En studie över Hegels rättfärdigande och marxismens kritik<br />
av den moderna rättsordningen (S<strong>to</strong>ckholm: P.A. Norstedt & Söners förlag 1978).<br />
442 Daniel Tarschys, Litteratur [Den orättfärdiga rätten] SvJT 1978, 694–696.<br />
443 Eero Backman, Markku Kivinen, Juha Pöyhönen, Objektiv Marx-<strong>to</strong>lkning? Retfærd 11/1979, 94–108.<br />
444 Torben Wanscher, Marxistisk videnskab som aspektvidenskab, Retfærd 7/1978, 29–38.<br />
243
ing the limits of fundamental rights. 445 The point was the his<strong>to</strong>rical dimension of the<br />
dialectics of the class conflict in relation <strong>to</strong> law. The critical scholars thought that the<br />
gap between law in books and law in action followed from the class conflict and was<br />
manifested in the actions of the public authorities. Through its various applications,<br />
Marxist legal scholarship sought <strong>to</strong> point out the problems and biases of law and its ideological<br />
and social functions.<br />
Although Marxism was mostly of interest <strong>to</strong> the Marxists themselves, scholars<br />
outside the school also criticized it. In his alternative interpretation of Scandinavian<br />
legal theory, 446 Jacob Sundberg criticized the critical enterprise for being a scholarship<br />
of power and lacking a concept of law. He argued that Marxism was ideological scholarship,<br />
falling in<strong>to</strong> the same failure it criticized traditional legal scholarship for. 447 Although<br />
Dalberg-Larsen argued that there were many differences between Soviet and<br />
Western Marxist legal theory, 448 Sundberg’s criticism indicated that the emphasis on<br />
class struggle and the absolutist conception of “just” society often led Marxist scholars<br />
<strong>to</strong> ignore the fact that in the criticism of the ideological function of traditional law they<br />
missed the other side of the coin. Critical legal scholarship was critical by de<strong>fi</strong>nition,<br />
and it was much more dif<strong>fi</strong>cult <strong>to</strong> construct an alternative theory of law that could overcome<br />
the problem of values.<br />
Criticism was at the heart of Marxist legal scholarship, but at the end of the 1970s<br />
it had been interpreted and developed in various directions. Marxist legal literature was<br />
expanding, the pages of Retfærd were <strong>fi</strong>lled with articles, and scholars were using it as a<br />
basis of their theories in more comprehensive studies. Nevertheless, there was no<br />
unique or even a systematic theory of Marxist jurisprudence. At the end of the decade,<br />
however, the Finnish legal scholar Lars D. Eriksson was <strong>fi</strong>nishing his theory, which also<br />
held that the relationship between law and productive relations was many-sided and<br />
complex, but that ideology always imposed boundaries on law. 449 In 1980, he published<br />
his doc<strong>to</strong>ral dissertation Marxistisk teori och rättsvetenskap (Marxist Theory and Legal<br />
Scholarship) which consisted of his thirteen articles published in 1966–1979 and a conclusion<br />
summarizing his arguments. In short, his theory emphasized the his<strong>to</strong>rical and<br />
sociological aspect of a particular legal system and the difference between the real and<br />
445 Torben Wanscher, Forsamlingsfriheden og “fælledslaget”: Studier til belysning af statens fastlæggelse<br />
af grænserne for arbejderbevægelsens forsamlingsfrihed 1872─1874 (Århus: Modtryk 1979), esp. at 5–9,<br />
23–47, 56–67, 129–179.<br />
446 According <strong>to</strong> Dalberg-Larsen, contemporary Scandinavian legal theory revolved around the concepts<br />
of legal realism and analytical philosophy, but Sundberg distanced himself from these notions in many<br />
ways. (Jørgen Dalberg-Larsen, Retskilder, naturret og socialisme, TfR 1979, 480.) Sundberg seems <strong>to</strong><br />
have been at the other extreme of critical theory. He was highly critical of the nihilism of realism and the<br />
socialist ideals it led <strong>to</strong>, whereas the other extreme, called here critical legal scholarship, endorsed the<br />
socialist ideals in particular.<br />
447 Jacob W.F. Sunberg, fr. Eddan t. Ekelöf: Repeti<strong>to</strong>rium om rättskällor i norden (Malmö: Studentlitteratur/Akademisk<br />
förlag 1978), 191–285, esp.at 194–198, 224–227, 258, 268–271.<br />
448 Dalberg-Larsen 1979, supra n. 446 at 488.<br />
449 Lars D. Eriksson, Utkast till en marxistisk jurisprudens, Retfærd 11/1979, 40–54. Eriksson’s theory<br />
was of course much more complicated, but we cannot delve any deeper in<strong>to</strong> it here. Marxist legal scholarship<br />
in Finland will be dealt with in more detail in the next chapter.<br />
244
the possible. This criticism revealed the ideological aspects of law and breaches between<br />
the ideal and the real, and thus provided an opportunity for reform. 450 According<br />
<strong>to</strong> critical legal scholarship, nothing was <strong>to</strong> be taken at face value, but everything was <strong>to</strong><br />
be reflected against its context and the origins and functions were always essential.<br />
Thus, although the theories had become more numerous and nuanced, the basic arguments<br />
of critical legal scholarship had not changed much during the decade.<br />
Our s<strong>to</strong>ry of Scandinavian critical legal scholarship conveniently ends here. Marxist<br />
legal scholarship had begun at the early 1970s with a few articles and enthusiastic<br />
criticism without a de<strong>fi</strong>nite theoretical basis, and at the beginning of the 1980s it had a<br />
systematic explanation for an alternative legal theory. Not everybody was, of course,<br />
straightforwardly pleased with Eriksson’s insights, 451 and Marxist scholarship continued.<br />
452 Marxist legal scholarship developed from a marginal group in<strong>to</strong> an academic<br />
bloc, but because of the lack of organization and political practicability, and because the<br />
critical and leftist thinking lost their momentum, it eventually began <strong>to</strong> fade as the<br />
1980s progressed.<br />
Just as in the United States, Scandinavian legal scholars of the 1970s worked <strong>to</strong><br />
<strong>fi</strong>nd alternative ways <strong>to</strong> deal with the problems the new times had brought. This encouraged<br />
more cross-disciplinary research and alternative theories, the aim being <strong>to</strong> acquire<br />
a realistic and comprehensive image of law in society. Responses <strong>to</strong> the changed circumstances<br />
varied, but critical legal scholarship, CLS in the United States and Marxist<br />
jurisprudence in Scandinavia, were the most radical responses. Not only did they reflect<br />
the changes in society and scholarship, but also radical leftist thought and the academic<br />
power struggle. Various forms of cross-disciplinary research, an emphasis on flexible<br />
argumentation, and the elaboration of principles were reflections of the larger transformation<br />
of legal scholarship, and the critical legal scholarship was the most extreme, and<br />
most culturally bound and politically oriented new current in jurisprudence. Critical<br />
legal scholarship was an extreme manifestation of alternative legal scholarship, representing<br />
the most radical aspect of academic legal scholarship.<br />
7 Conclusions<br />
7.1 A his<strong>to</strong>rical perspective on critical legal scholarship<br />
Now that the most essential aspects of the Scandinavian critical legal scholarship have<br />
been examined, it is time <strong>to</strong> summarize them and place them in a his<strong>to</strong>rical perspective.<br />
450 Lars D. Eriksson, Marxistisk teori och rättsvetenskap (<strong>Helsinki</strong>: Juridiska föreningen i Finland 1980).<br />
451 Jørgen Dalberg-Larsen, Retsdogmatik, legalstrategi og marxisme, Retfærd 12/1979, 80–92; Thomas<br />
Mathiesen, En marxistisk jurisprudens? Retfærd 15/1980, 70–74.<br />
452 Håkan Hydén, Marxistisk rättsteori, Retfærd 12/1979, 56–79.<br />
245
As noted in the previous chapter, scholars on the his<strong>to</strong>ry of CLS have stressed one aspect<br />
over another without providing a thorough account of the his<strong>to</strong>ry. CLS was a reaction<br />
<strong>to</strong> the fact that the postwar jurisprudence, whether traditional or alternative, formalist<br />
or realist, did not focus on the analysis of the fundamental basis of law and legal<br />
scholarship or on the relationship between values and policies and law. It was also a<br />
response <strong>to</strong> the dramatic changes in scholarship, society, and culture. Thus, it was a cultural<br />
movement. In the following analysis, I will apply the same approach <strong>to</strong> the Scandinavian<br />
critical legal scholarship as was used regarding CLS, pointing out that at the<br />
fundamental level these two movements were similar kinds of cultural reactions <strong>to</strong> law<br />
and scholarship.<br />
Alternative legal scholarship arose slowly in the 1950s and 1960s. At <strong>fi</strong>rst, it was<br />
mostly sociology of law, intended <strong>to</strong> analyze the social functions of law. Alternative<br />
criminology also emerged, investigating crime as a social phenomenon and focusing on<br />
the functions of the criminal system. By the mid-1960s, alternative legal scholarship<br />
had an established position within the academic legal profession. Furthermore, important<br />
social problems such as industrial democracy and expropriation and their legal<br />
regulations were widely debated. Those who endorsed a change often advanced sociological<br />
and value-based argumentation. Alternative legal scholarship in the <strong>fi</strong>rst place<br />
was thus socially oriented jurisprudence which sought <strong>to</strong> understand the functions and<br />
effects of law and <strong>to</strong> provide information for reform.<br />
The changes in legal scholarship and the rise of the alternative schools were consequences<br />
of the changes in scholarship and society. Postwar scholarship was marked<br />
by the interest in sociology and cross-disciplinary research. Many of the leading <strong>fi</strong>gures<br />
of Scandinavian alternative legal scholarship, such as Vilhem Aubert and Thomas<br />
Mathiesen, studied in the United States and acquired their theoretical basis there. The<br />
new methodologies suited the needs of society <strong>to</strong> acquire more accurate data <strong>to</strong> deal<br />
with the new social problems. At the heart of alternative legal scholarship were the<br />
methods of the empirical social sciences with which it analyzed the social functions and<br />
effects of law, having mainly two purposes. First, it criticized law for its formal character<br />
and the emphasis on formal equality, the gap between law in books and law in action,<br />
and its political and ideological connections. Second, through the criticism it<br />
sought <strong>to</strong> change the law. Its perspective was mostly leftist.<br />
It was especially the leftist aspect of alternative legal scholarship that contributed<br />
<strong>to</strong> its radicalization and <strong>to</strong> the rise of critical legal scholarship. Critical and Marxist legal<br />
scholarship were the continuation of the alternative legal scholarship of the 1960s, but<br />
they also transformed its theories and methods. Marxist theory was used <strong>to</strong> disclose the<br />
social class-struggle which, according <strong>to</strong> the Marxist scholars, was a major source of the<br />
legal system. The purpose was still <strong>to</strong> examine the actual functions and effects of law,<br />
but the perspective was changed. Critical legal scholarship was critical by de<strong>fi</strong>nition,<br />
because its assumption was that law emanated from the class conflict and was mostly a<br />
<strong>to</strong>ol of the ruling elite, thus supporting its interests and oppressing the lower social classes.<br />
Marxist legal scholarship quickly advanced <strong>to</strong> the heart of jurisprudence during the<br />
246
1970s. First, Marxist legal scholarship was pieces of writing and academic work groups,<br />
but by the end of the decade, it had grown in<strong>to</strong> a jurisprudential school, had a Nordic<br />
law journal, and there were several comprehensive treatises on its theoretical foundations.<br />
Despite the expansion and uni<strong>fi</strong>cation, however, there was no uni<strong>fi</strong>ed theory of<br />
Marxist legal scholarship.<br />
Critical legal scholarship reflected the radicalization of scholarship in the 1970s.<br />
Early influences on the sociology of law and critical criminology came mostly from<br />
American scholarship, but at the end of the 1960s, critical theory and continental Marxism<br />
began <strong>to</strong> have more impact. Marxist legal scholarship of the 1970s was based mostly<br />
on Continental neo-Marxism. Alternative and critical scholars often also drew influence<br />
from the contemporary <strong>to</strong>pics, and used Marxist rhe<strong>to</strong>ric <strong>to</strong> grasp them. Various<br />
aspects of contemporary philosophy and social theory were also applied.<br />
Despite the disagreements in theories, alternative and critical legal scholars also<br />
worked partially for a common goal and shared similarities in substance. Critical legal<br />
scholarship was also in line with the socially and politically oriented studies. It tackled<br />
problems relating <strong>to</strong> capitalist society, its purpose being <strong>to</strong> disclose the weaknesses of<br />
bourgeois welfare state and <strong>to</strong> point out that the problems could not be solved by traditional<br />
measures. Both the sociological jurisprudence and critical criminology on the one<br />
hand and the more radical Marxist legal scholarship on the other provided data for social<br />
planning. They also sprang from the rising rights consciousness, their aim being <strong>to</strong><br />
improve the conditions of the less-privileged. Although there were differences as <strong>to</strong> the<br />
appropriate reform measures, alternative and critical legal scholars shared a background<br />
in leftist politics.<br />
Leftism was the critical thought at the time. Critical legal scholarship developed<br />
when law students became interested in the counter-culture, sociology of law, and in<br />
critical scholarship. They fought the authorities of law and legal scholarship and elaborated<br />
a jurisprudence that could transcend doctrinal analysis and expose law in action.<br />
Many of the alternative and critical legal scholars sympathized with leftism before they<br />
entered the critical path, but for some the leftist ideology followed the critical scholarship.<br />
Leftism was an ideology of antagonism, criticism, and radicalism. It was a counter-force<br />
against the establishment. Just as the new left and the cultural radicals of the<br />
1960s wanted <strong>to</strong> show that there was an alternative <strong>to</strong> the modern liberal society, the<br />
critical legal scholars wanted <strong>to</strong> point out that there were alternatives <strong>to</strong> modern law,<br />
and that the alternatives would better guarantee welfare and democracy.<br />
Besides the social and political aspect, critical scholarship was also a scholarly enterprise.<br />
Alternative and critical legal scholarship were forms of criticism of the scholarly<br />
tradition. They criticized logical positivism in science and formalist, normative orientation<br />
in legal scholarship. The critical thought denied the presumption that one could<br />
obtain reality through empirical observation because perception was always structured<br />
by ideology. Therefore one should be aware of one’s biases <strong>to</strong> understand the meaning<br />
of the perception. Thus, critical legal scholarship was also criticism of Scandinavian<br />
realism, or the critical scholars’ de<strong>fi</strong>nition of it. In the 1960s, realism was a major<br />
247
school of jurisprudence, and the majority of the legal profession accepted the fact that<br />
legal scholarship should not contemplate values or policies. The critical scholars, however,<br />
wanted <strong>to</strong> bring values, ideologies, and policies back in<strong>to</strong> the legal discourse. Critical<br />
legal scholarship was legal positivism, because it considered law as a man-made<br />
system, but it criticized the sharp distinction between law, values, and politics. In a<br />
sense, then, critical thought sought <strong>to</strong> bring metaphysics back in<strong>to</strong> legal scholarship.<br />
Moreover, critical legal scholarship was also realistic, since it emphasized law in action.<br />
Critical scholars disagreed in many respects, but they all endorsed legal argumentation<br />
that was open with values and policies.<br />
The question was also about the criticism of the au<strong>to</strong>nomy of legal scholarship.<br />
Traditional legal scholars opined that their profession could use social science <strong>to</strong> an<br />
extent, but doctrinal analysis was nevertheless the core of the scholarship. The alternative<br />
and critical legal scholars, on the other hand, argued that legal scholarship should<br />
be transformed in<strong>to</strong> a mixture of jurisprudence and social and political science. Whereas<br />
the attack on positivism was an attack on a more general tradition of scholarship, the<br />
attack on the au<strong>to</strong>nomy of legal scholarship was an attack on the academic legal profession<br />
in particular.<br />
Critical legal scholarship thus had a social-political and a scholarly aspect. However,<br />
there was yet another aspect, the academic aspect. Critical legal scholars were after<br />
an academic reputation, notwithstanding whether it was their material advantage. By<br />
attacking the tradition, the critical scholars disrespected authorities, lifted themselves<br />
above the crowd, and pursued an authentic self. Critical and radical thought was a lifestyle<br />
of academic scholarship. To an extent, the campus radicalism of the 1960s was an<br />
expression of the authentic self just as it was an expression of the frustration with the<br />
system. Some of the critical legal scholars were radical students while some merely<br />
sympathized with them, but most were either pursuing their authenticity in scholarship<br />
or were frustrated with the tradition of scholarship, university administration, faculty, or<br />
all of them. In part, critical legal scholarship was an enterprise <strong>to</strong> provide help for the<br />
underdog by improving their legal and social status, and in part it was an exercise in<br />
updating the theories and methodologies of legal scholarship. Nevertheless, in part it<br />
was also an academic movement <strong>to</strong>ward originality and authenticity in scholarship.<br />
In short, American and Scandinavian critical legal scholarship were similar in<br />
many respects. They both arose as a radicalization of the sociological jurisprudence of<br />
the 1960s as reflections of the rise of Marxist scholarship. They were both new left academic<br />
movements of those students who did not want <strong>to</strong> conform <strong>to</strong> the tradition and<br />
sought <strong>to</strong> replace it with a comprehensive alternative. They contemplated signi<strong>fi</strong>cant<br />
social problems and sought <strong>to</strong> trace them in the structures of law, society, the economy,<br />
and the consciousness of the people. Scandinavian critical scholarship adopted a Marxist<br />
basis, while the American critical scholars kept their distance from Marxism and<br />
applied various approaches. The Scandinavians, however, disagreed as <strong>to</strong> the exact interpretation<br />
of Marxism and developed various differing theories.<br />
248
7.2 Critical legal scholarship and the 1980s<br />
Critical legal scholarship grew out of the postwar scholarship and society. Legal scholarship<br />
was marked by the criticism of positivism, the emergence of sociology of law,<br />
and policy-oriented legal argumentation. Critical legal scholars wanted <strong>to</strong> expose social<br />
and legal reality, criticize the reasons that caused the problems, and propose reforms for<br />
a better society, better as de<strong>fi</strong>ned by the scholars themselves. Alternative legal scholarship<br />
grew steadily during the 1960s; it was radicalized and turned in<strong>to</strong> critical scholarship<br />
at the turn of the decade, reaching its height in the 1970s. Marxism became the<br />
common theoretical background on which <strong>to</strong> construct more speci<strong>fi</strong>c legal analyses and<br />
theories. Alternative legal scholarship was, however, much more than simple criticism.<br />
It was also empirical studies on the legal status of the poor and women, for example,<br />
and practical suggestions <strong>to</strong> improve their situation.<br />
Although there was a vast amount of theoretical and empirical literature, critical<br />
legal scholarship faded slowly in the 1980s. As Kristian Andenæs wrote on the tenth<br />
anniversary of the Juss-Buss movement in 1981, critical legal scholarship and practice<br />
were not doing as well as they had ten years ago, since older scholars had become of<strong>fi</strong>ce<br />
clerks and students were not that interested in legal sociology or other alternative legal<br />
activities. 453 Marxist legal scholarship of course continued in the pages of Retfærd, but<br />
it <strong>to</strong>o was slowly waning and, moreover, turning in<strong>to</strong> a critical analysis of the welfare<br />
legislation. As the 1980s progressed, there was ever less Marxist literature, but studies<br />
on the problems of the law of the welfare state and on the problems of the rights of the<br />
citizen prospered. 454 The 1980s was in general a turn <strong>to</strong>ward more conservative politics.<br />
It thus seems that Andenæs was right in saying that most of the older scholars were fatigued<br />
by their professional responsibilities, whether in the academy or in their practices,<br />
and the students were no longer that interested in critical scholarship. Criticism drifted<br />
out of fashion. Critical and Marxist legal scholarship did not vanish completely, but<br />
the major radical bloc faded. Because of these changes in the nature of critical legal<br />
scholarship, our analysis will s<strong>to</strong>p at the beginning of the 1980s.<br />
We have now seen how alternative legal scholarship arose in Scandinavia in the<br />
1960s, how a more critical stance emerged at the same time, and how Marxist legal<br />
scholarship was elaborated in the 1970s. An interesting aspect in the context is the development<br />
of alternative and critical legal scholarship in Finland, because in many ways<br />
it recalled its Scandinavian neighbors but at the same time was also different from them<br />
and formed a unique and interesting, more radical critical legal thought. Since we now<br />
have examined the rise of critical legal scholarship in the United States and in Scandi-<br />
453 Kristian Andenæs, Ender vi alle opp som systemets skjödehunder? Noen betraktninger om Kritisk<br />
Juss-bevegelsens status i Norge, HfKJ 2–3/1981, 10.<br />
454 See, e.g., Retfærd 14/1980; Retfærd 18/1981. The turn is evident from reading through the volumes of<br />
Retfærd of the 1980s.<br />
249
navia, our next focus is in the small country at the borderline between the West and the<br />
East.<br />
250
V Alternative and critical legal scholarship in Finland,<br />
1965─1980<br />
1 Finland and the 1960s: The great structural change in society<br />
In the previous chapters we have seen how critical legal scholarship arose in the United<br />
States and Scandinavia in the 1960s as a result of the changes in society, politics, and<br />
culture. In this chapter, I shall deal with the Finnish critical and alternative legal scholarship<br />
in the 1960s and 1970s, which in many ways followed the international context.<br />
During the quarter of a century approximately from the late 1950s <strong>to</strong> the early 1980s,<br />
Finland underwent a relatively late but rapid and marked social change, known as the<br />
great structural change, and it is important <strong>to</strong> begin the examination with an introduction<br />
<strong>to</strong> the social circumstances.<br />
Finland was transformed from a relatively backward and agricultural society in<strong>to</strong> a<br />
modern industrial welfare state in the 1960s. Efforts at improving social welfare had<br />
begun in the 1930s but were halted by the Second World War. After the War, Finnish<br />
politics <strong>to</strong>ok a new course in order <strong>to</strong> pay the war reparations and <strong>to</strong> modernize society. 1<br />
The most dramatic change occurred in the 1960s. The postwar baby-boom increased the<br />
population of Finland considerably, and there was massive migration both from the<br />
countryside <strong>to</strong> the urban areas and <strong>to</strong> Sweden, when vast numbers of people moved <strong>to</strong><br />
the cities in search of a better future. 2 Thus, the 1950s and 1960s were marked by industrialization,<br />
economic expansion, and urbanization. This altered the social and class<br />
structure of Finland. A society that had previously been predominantly agricultural became<br />
an industrial one, and the size of the industrial working class grew rapidly. 3<br />
The social change and the growth of the urban working class altered the political<br />
arena as well. The working class became a major player in politics as a consequence of<br />
the structural change and the active organization of workers. Support for the moderate<br />
left increased signi<strong>fi</strong>cantly, and politics moved <strong>to</strong>wards the left. This was unprecedented<br />
in the his<strong>to</strong>ry of independent Finland, since the left had been on the margin of politics<br />
1 Pekka Haatanen, Suomalaisen hyvinvointivaltion kehitys, 43–50, in Olavi Riihinen (ed.), Sosiaalipolitiikka<br />
2017: Näkökulmia suomalaisen yhteiskunnan kehitykseen ja tulevaisuuteen (Juva: Werner Söderström<br />
osakeyhtiö 1993), 31–67.<br />
2 Tapani Valkonen, Väkiluvun ja ikärakenteen kehitys, 20, 28–29, in Tapani Valkonen, Ris<strong>to</strong> Alapuro,<br />
Matti Alestalo, Riitta Jallinoja, Tom Sandlund, Suomalaiset: Yhteiskunnan rakenne teollistumisen aikana<br />
(Juva: Werner Söderström osakeyhtiö 1985), 10–35.<br />
3 Pertti Alasuutari, Toinen tasavalta: Suomi 1946–1994 (Tampere: Vastapaino 1996), 62–65; Hannu<br />
Soikkanen, Miten 1960-luvun raju elinkeinorakenteen murros syntyi ja miten sitä hallittiin? 581–582, in<br />
Tie tulkintaan (Juva: WSOY 1997), 578–602; Matti Alestalo, Yhteiskuntaluokat ja sosiaaliset kerrostumat<br />
<strong>to</strong>isen maailmansodan jälkeen, 103–107, 184–185, in Valkonen et al. 1985, supra n. 2 at 101–200.<br />
251
after the civil war. Leftism was suppressed by extreme-right activism during the Inter-<br />
War era and communism was banned in Finland. In the 1960s, however, the left had a<br />
signi<strong>fi</strong>cant position in Finnish politics, 4 but it also had a dif<strong>fi</strong>cult position because of its<br />
controversial relations with the Soviet Union. 5 The relationship between Finland and the<br />
Soviet Union was dif<strong>fi</strong>cult after the Second World War, and the Finnish left was in an<br />
awkward position. Nevertheless, leftism became an ideology of reform and a powerful<br />
component of social and political rhe<strong>to</strong>ric in the 1960s.<br />
Changes in social and welfare policy followed the social transformation, while urbanization<br />
and industrialization revealed existing social problems and created new ones.<br />
The 1960s and the 1970s were times of intense debates on social and legal politics, and<br />
people became more aware of their rights than before. The increased wealth of the nation<br />
and the changed social circumstances both encouraged the people <strong>to</strong> demand more<br />
from the state and the state <strong>to</strong> regulate society and take care of the nation. The social<br />
policy of the 1960s trusted social planning, and a considerable amount of welfare legislation<br />
was enacted. The social security system and labor law, as well as regulation on<br />
housing and public subsidies were reformed. 6<br />
Governmental regulation created the basis for the welfare state, but the society was<br />
transforming in other ways as well. Social problems and people’s awareness of them<br />
gave rise <strong>to</strong> social criticism. The so-called single cause movements criticized the status<br />
of the poor and the unemployed, women, and minorities, as well as prisoners and institutionalized<br />
people. Social activism, as well as ideas such as paci<strong>fi</strong>sm and feminism<br />
began <strong>to</strong> emerge. The social movements hoped <strong>to</strong> improve the status of the lessprivileged<br />
and create increasing social equality. 7 Thus, control and criminal policy were<br />
reformed <strong>to</strong> become more humane and modern and the legal security of the citizen was<br />
improved. Many old offences were decriminalized and penalties were moderated. 8<br />
In addition <strong>to</strong> the criticism of politics, the social atmosphere of the 1960s was antagonistic<br />
in general. Mass protests against the Vietnam War and the poor conditions in<br />
4 Heikki Ylikangas, Käännekohdat Suomen his<strong>to</strong>riassa: Pohdiskeluja kehityslinjoista ja niiden muu<strong>to</strong>ksista<br />
uudella ajalla (Juva: Werner Söderström Osakeyhtiö 1987), 175–188, 205–206; Alestalo 1985, supra n.<br />
3 at 186–194; Olavi Riihinen, Sosiaalipolitiikka ja legitimiteetti, 278–281, in Riihinen (ed.) 1993, supra n.<br />
1 at 257–290.<br />
5 See Kimmo Ren<strong>to</strong>la, Vallankumouksen aave: Vasemmis<strong>to</strong>, Beljakov ja Kekkonen 1970 (<strong>Helsinki</strong>: Otava<br />
2005).<br />
6 Matti Alestalo & Hannu Uusitalo, Finland, 203–228, in Peter Flora (ed.), Growth <strong>to</strong> Limits: The Western<br />
European Welfare States Since World War II, Volume 1: Sweden, Norway, Finland, Denmark (Berlin:<br />
Walter de Gruyter 1986), 197–292; Katri Hellsten, Muuttuva yhteiskunta ja sosiaalipolitiikan keskeiset<br />
arvot ja päämäärät, 144–145, in Riihinen (ed.) 1993, supra n. 1 at 131–168; Jukka Kekkonen, Suomen<br />
oikeuskulttuurin suuri linja 1898–1998 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1998), 107–112;<br />
Alasuutari 1996, supra n. 3 at 108–111.<br />
7 Marja Tuominen, “Me kaikki ollaan sotilaitten lapsia”: Sukupolvihegemonian kriisi 1960-luvun suomalaisessa<br />
kulttuurissa (<strong>Helsinki</strong>: Otava 1991), 130–215, 222–235; Matti Virtanen, Fennomanian perilliset:<br />
Poliittiset traditiot ja sukupolvien dynamiikka (Hämeenlinna: SKS 2001), 296–302; Tapani Suominen,<br />
Ehkä teloitamme jonkun: Opiskelijaradikalismi ja vallankumous<strong>fi</strong>ktio 1960- ja 1970-lukujen Suomessa,<br />
Norjassa ja Länsi-Saksassa (<strong>Helsinki</strong>: Tammi 1997), 165–167; Terttu Pesonen, Valla<strong>to</strong>nta valtaa: Tutkielma<br />
1960-luvun radikalismista Suomessa (<strong>Helsinki</strong>: Helsingin Yliopis<strong>to</strong> 1992).<br />
8 Kekkonen 1998, supra n. 6 at 104–106.<br />
252
the developing countries occurred, which marked the socialist and anti-imperialist <strong>to</strong>ne<br />
of radicalism. Demonstrations became frequent after the mid-1960s. 9 A counter-culture<br />
arose <strong>to</strong>gether with social radicalism, in which the traditional values, mores, and hierarchies<br />
were criticized and people began <strong>to</strong> seek alternative lifestyles. Everything was<br />
questionable. Mass protests were targeted against the power structures and conservative<br />
nature of the society, and people demanded more democracy, power, and liberty. 10<br />
Just as the society was in turmoil, so was the academy and scholarship, and academia<br />
changed signi<strong>fi</strong>cantly in many ways in the 1960s. Many social and political scientists<br />
studied in the United States in the 1950s, which in general was a period of Americanization<br />
of scholarship. 11 In the 1960s, however, critical theory made its way in<strong>to</strong><br />
Finnish scholarship and Marxism began <strong>to</strong> emerge. At the beginning of the 1970s,<br />
Marxism became a powerful, though often scorned, paradigm in social science. Marxist<br />
scholarship distanced itself from the positivist paradigm that prevailed and sought <strong>to</strong><br />
analyze the social reality critically. 12 Students also became a powerful source of radicalism.<br />
The 1960s was a time of massive student expansion at the universities, which made<br />
the poor conditions of students more obvious. As the problems increased, the number of<br />
students grew and their social backgrounds became more various, they became politically<br />
active group. 13 The student protests culminated in 1968 in the occupation of the Old<br />
Student House, where the students demanded democratization of the university administration,<br />
critical studies in the curriculum, and closer cooperation with the trade unions.<br />
14 As elsewhere in the world, Finnish students adopted the counter-culture of the<br />
1960s and aligned with the political left, thus creating the new left, and became a mo<strong>to</strong>r<br />
of social radicalism.<br />
An economic downturn and growing unemployment marked the 1970s. 15 Trade<br />
unions and leftism were still powerful, and student radicalism adopted a more Marxist<br />
<strong>to</strong>ne and moved even more <strong>to</strong>wards the left, 16 but society in general was becoming more<br />
conservative. Although the trends of the 1960s continued and new trends such as envi-<br />
9 Tuominen 1991, supra n. 7 at 158–178, 218–222; Suominen 1997, supra n. 7 at 172–174.<br />
10 Johan von Bonsdorff, Kun vanha vallattiin (<strong>Helsinki</strong>: Tammi 1986), 68–86, 104–142; Tuominen 1991,<br />
supra n. 7 at 344–382.<br />
11 Erik Allardt, Suunnistuksia ja kulttuurishokkeja (<strong>Helsinki</strong>: Otava 1995), 74–82; Marja Alake<strong>to</strong>la-<br />
Tuominen, Jokapojan amerikanperintö: Yhdysvaltalaisia kulttuurivaikutteita Suomessa <strong>to</strong>isen maailmansodan<br />
jälkeen (<strong>Helsinki</strong>: Gaudeamus 1989), 61, 64.<br />
12 Matti Alestalo & Teuvo Räty, Sosiologian 1960- ja 1970-lukujen kriisi väitöskirjojen valossa, 223, in<br />
Pekka Ahtiainen, Teuvo Räty, John Strömberg, Jukka Tervonen, (eds.), His<strong>to</strong>ria, sosiologia ja Suomi:<br />
Yhteiskuntatutkimus itseymmärryksen jäljillä (<strong>Helsinki</strong>: Hanki ja jää 1994), 217–243; Antti Eskola, Seppo<br />
Toiviainen, Matti Alestalo, Ris<strong>to</strong> Alapuro, Marxilainen tutkimus, 222–223, in Suomalaisen sosiologian<br />
juuret (Porvoo: Werner Söderström Osakeyhtiö 1973), 194–225.<br />
13 Laura Kolbe, Eliitti, traditio, murros: Helsingin yliopis<strong>to</strong>n ylioppilaskunta 1960–1990 (<strong>Helsinki</strong>: Otava<br />
1996), 177–202, 387–389.<br />
14 Kolbe 1996, supra n. 13 at 327–364; Tuominen 1991, supra n. 7 at 322–339; Bonsdorff 1986, supra n.<br />
10 at 9–31; Virtanen 2001, supra n. 7 at 309–318; Suominen 1997, supra n. 7 at 176–198. An interesting<br />
point is that the Finnish students occupied a building that belonged <strong>to</strong> the students’ union, not one belonging<br />
<strong>to</strong> the University. Thus, although student radicalism in Finland followed the international trends, it<br />
was somewhat more moderate than elsewhere in the Western world.<br />
15 Alestalo & Uusitalo 1986, supra n. 6 at 205, 213, 234, 250.<br />
16 Kolbe 1996, supra n. 13 at 409–501.<br />
253
onmentalism emerged, more conservative voices were also heard, 17 and the structures<br />
of the welfare state were criticized for being <strong>to</strong>o costly. 18 By the end of the 1970s, radicalism<br />
had faded and politics sought consensus rather than conflict, and students had<br />
lost most of their interest in politics. 19 Despite the change, the 1960s and 1970s had left<br />
a permanent mark on Finnish society. The remainder of this chapter examines its impact<br />
on legal scholarship.<br />
2 Criticism of legal scholarship<br />
2.1 A prelude <strong>to</strong> the problems of legal scholarship in the 1960s<br />
Finnish legal scholars began <strong>to</strong> modify legal scholarship <strong>to</strong> meet the needs of the changing<br />
society during the postwar years. 20 Despite the changes, Finnish jurisprudence of the<br />
1960s was still based on nineteenth-century conceptualism. No extreme formalism,<br />
however, prevailed, since legal scholars recognized the fact that law was open <strong>to</strong> interpretation,<br />
as well as the personal input of the judges in judicial decision-making. Nevertheless,<br />
legal thought sought <strong>to</strong> maintain legal reasoning within rational limits and <strong>to</strong><br />
keep it as neutral and logical as possible. 21 In general, jurisprudence was dominated by<br />
doctrinal analysis, the purpose of which was <strong>to</strong> interpret and systematize legal rules.<br />
Other forms of legal scholarship, such as legal his<strong>to</strong>ry and sociology, were considered<br />
as auxiliary disciplines. 22 Doctrinal analysis, on the other hand, was divided in<strong>to</strong> conceptual<br />
and analytical approaches. The former emphasized the importance of legal concepts,<br />
whereas the latter, the analytical school that developed in the 1950s, sought <strong>to</strong><br />
17 Virtanen 2001, supra n. 7 at 318–339.<br />
18 Jukka Pekkarinen, Keynesiläinen hyvinvointivaltio kritiikin ristitulessa, 104–107, in Riihinen (ed.)<br />
1993, supra n. 1 at 97–108; Hellsten 1993, supra n. 6 at 148–150.<br />
19 Kolbe 1996, supra n. 13 at 529–539.<br />
20 Urpo Kangas (ed.), Oikeustiede Suomessa 1900–2000 (Juva: Werner Söderström Lakitie<strong>to</strong> 1998), 172–<br />
173.<br />
21 See, e.g., Aa<strong>to</strong>s Alanen, Yleinen oikeustiede ja kansainvälinen yksityisoikeus (Porvoo: Werner Söderström<br />
Osakeyhtiö 1965), 101–177. Alanen wrote that although the personal input of a judge in adjudication<br />
had long been acknowledged (id. at 167), legal education guided judges <strong>to</strong>ward objectivity and impartiality<br />
(id. at 172). Alanen stressed these points as early as the late 1940s. (Aa<strong>to</strong>s Alanen, Yleinen<br />
oikeustiede (Porvoo: Werner Söderström Osakeyhtiö 1948), 112, 115.) It is, of course, a matter of debate<br />
as <strong>to</strong> whether Alanen’s points of views can be regarded as representative of the majority of the legal profession.<br />
It nevertheless seems apposite <strong>to</strong> use them as guides <strong>to</strong> the legal thought of postwar Finland because<br />
his books were used as text books on general jurisprudence. In any event, he emphasized the pursuit<br />
and the possibility of neutrality and objectivity in legal reasoning while acknowledging the exercise of<br />
discretion. Therefore, it is fair <strong>to</strong> conclude that Finnish legal scholarship of the 1960s emphasized the<br />
logical and formal aspects of legal reasoning.<br />
22 Simo Zitting, Valtioelämän oikeustieteellinen, his<strong>to</strong>riallinen ja sosiologinen tutkimustapa, Politiikka<br />
1961, 36–39.<br />
254
distinguish concepts in<strong>to</strong> more de<strong>fi</strong>nite and detailed parts. 23 Legal scholars were aware<br />
of the fact that legal scholarship had a partial law-making aspect, but the focus was on<br />
normative aspects. 24 Text-books often stressed the fact that a legal decision was a logical<br />
deduction, 25 and conceptualist jurisprudence was also supported, especially in public<br />
law. 26 The characteristics of legal scholarship thus were its normative nature and its<br />
emphasis on legal rules as well as its pursuit of neutrality and objectivity, the taught<br />
tradition being more formalist than legal scholarship in general.<br />
The transformation of Finnish legal scholarship had thus begun after the Second<br />
World War, but the 1960s marked a more intense period of change. Despite the formalist<br />
tradition, the openness of legal reasoning was acknowledged, 27 and legal scholars<br />
were calling for more empirical legal research, 28 and studies concentrating on the problems<br />
of legal interpretation. 29 One especially signi<strong>fi</strong>cant occasion in Finnish legal theory<br />
was the doc<strong>to</strong>ral dissertation of Kaarle Makkonen, published in 1965, which concerned<br />
the problems of judicial decision-making. Makkonen criticized the traditional notion<br />
that a judicial decision was a logical deduction from general principles and argued that<br />
in cases with discretion, the judge always put his opinion in the place of law and made<br />
an evaluative argument about what the law ought <strong>to</strong> be. 30 Although the book did not<br />
raise general attention at the time of its publication, it became signi<strong>fi</strong>cant for later scholarship<br />
since it pointed out the problems the legal scholars were facing and encouraged<br />
seeing adjudication from a new perspective. Moreover, traditional legal scholars did not<br />
approve the central arguments of the book, suggesting that Makkonen went <strong>to</strong>o far with<br />
his arguments. They thought that it was useful <strong>to</strong> present judicial decision-making as a<br />
logical deduction at least for study purposes. 31<br />
Even if the traditional profession was not willing <strong>to</strong> change the basis of their<br />
scholarship, legal scholars developed new methods of making legal scholarship meet<br />
the needs of society and respond <strong>to</strong> the contemporary legal problems. An important<br />
school of the 1960s was the new analytical jurisprudence, which the young legal scholar<br />
Aulis Aarnio (b. 1937) developed on the basis of the older Finnish analytical jurisprudence.<br />
The analytical-realistic school, which was mostly interested in dividing legal<br />
concepts in<strong>to</strong> smaller units, was transformed in<strong>to</strong> an analytical-hermeneutical school,<br />
23 Simo Zitting, Omistajan oikeuksista ja velvollisuuksista I─II, LM 1952, 387–401, 501–531.<br />
24 Zitting 1961, supra n. 22 at 36–37.<br />
25 Tauno Tirkkonen, Suomen siviiliprosessioikeus II (Porvoo: Werner Söderström Osakeyhtiö 1966),<br />
292–295.<br />
26 Olavi Rytköla, Hallin<strong>to</strong>- ja <strong>fi</strong>nanssioikeudessa sovellettavista oikeusnormeista, LM 1965, 172–185.<br />
27 Jan-Magnus Jansson, Grundlagsutskottet som grundlags<strong>to</strong>lkare, JFT 1955, 277–297; Simo Zitting,<br />
Teoreettisen tutkimuksen merkityksestä juridiikassa, LM 1960, 861–868.<br />
28 Martti Federley, Laintulkinnasta deskriptiivisenä tulkintaoppina, LM 1965, 296–302; Jaakko Uotila,<br />
Normitie<strong>to</strong> ja reaalitie<strong>to</strong>, LM 1967, 839–847.<br />
29 Kaarle Makkonen, Luova ajattelu oikeustieteessä, LM 1965, 844.<br />
30 Kaarle Makkonen, Zur Problematik der juridischen Entscheidung: Eine strukturanalytische Studie<br />
(Turku: Turun yliopis<strong>to</strong> 1965), esp. at 175–195.<br />
31 Tauno Tirkkonen, Mietteitä erään väitöskirjan johdosta, LM 1966, 128.<br />
255
focusing on the linguistic uses of the concepts as well. 32 Aarnio argued that it was not<br />
meaningful <strong>to</strong> operate simply with the concepts, but one ought <strong>to</strong> examine their practical<br />
meaning. 33 His doc<strong>to</strong>ral dissertation thus brought the elements of linguistic philosophy<br />
and deontic logic in<strong>to</strong> the analytical theory, and sought <strong>to</strong> explain the meaning of<br />
the concepts, their sub-concepts, legal rules, and legal pronouncements in reality. The<br />
purpose was <strong>to</strong> sort out the meaning of legal rules in practical legal situations. 34<br />
Aarnio’s analytical jurisprudence sought <strong>to</strong> make legal scholarship and reasoning<br />
more realistic but it was not an attempt <strong>to</strong> abandon the traditional characteristics of legal<br />
scholarship. Rather, with the help of linguistic philosophy he endeavored <strong>to</strong> respond <strong>to</strong><br />
the contemporary problems of legal reasoning and scholarship. Another young legal<br />
scholar, Hannu Tapani Klami, for instance, criticized Aarnio for not being able <strong>to</strong> de<strong>fi</strong>ne<br />
the new method of legal scholarship and argued for more nuanced and realistic legal<br />
argumentation. 35 By the mid-1960s, many legal scholars opined that the old conceptualist<br />
jurisprudence was outdated, and began <strong>to</strong> elaborate more realistic methods of reasoning.<br />
The theoretical premises of new methods, however, were open <strong>to</strong> debate and criticism.<br />
As we saw in the previous chapters, postwar jurisprudence struggled with the pursuit<br />
of rationality. By the second half of the 1960s, Finnish legal scholarship was also<br />
facing new challenges. The legal profession had traditionally been quite conservative,<br />
and so was academic jurisprudence. Although there never was any realist tradition in<br />
Finland, its elements had made their way in<strong>to</strong> Finnish jurisprudence since the late 1940s<br />
when legal scholars began <strong>to</strong> pay more attention <strong>to</strong> the social realities of legal problems,<br />
36 and the analytical jurisprudence of the 1950s shared certain elements of it. 37 In<br />
the 1960s, legal scholars were becoming more interested in the methodological problems<br />
of their scholarship. As Zitting noted, Aarnio’s treatise combined doctrinal analysis<br />
with legal philosophy and thus complemented, not invalidated traditional scholarship.<br />
38 During the 1960s, legal scholars became more interested in other methods considering<br />
legal phenomena than doctrinal analysis, and the problems of analyzing judicial<br />
decision-making were becoming more pressing. New currents in philosophy and social<br />
32 Kaarlo Tuori, Oikeuden ratio ja voluntas (<strong>Helsinki</strong>: WSOYpro 2007), 190–196. According <strong>to</strong> Tuori,<br />
Makkonen was a media<strong>to</strong>r between the two schools. Finnish analytical jurisprudence was originally developed<br />
in the 1950s by Simo Zitting.<br />
33 Aulis Aarnio, Avio-oikeuden käsitteestä, LM 1965, 592, 594–595.<br />
34 Aulis Aarnio, Perillisen oikeusasemasta (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1967), esp. at 23–59,<br />
104–133. See also Aulis Aarnio, Några tankar om oskiftat dödsbo som juridisk person, JFT 1968, 342–<br />
368.<br />
35 Hannu Tapani Klami, Kan lagfart beviljas oskiftat dödsbo? En studie i frågeställningar, JFT 1969, 219–<br />
227. See also Aarnio’s reply Aulis Aarnio, Några tankar om oskiftat dödsbo som juridisk person II: Svar<br />
till Hannu Tapani Klami, JFT 1969, 228–243.<br />
36 Markku Helin, Lainoppi ja metafysiikka: Tutkimus skandinaavisen oikeusrealismin tieteenkuvasta ja<br />
sen vaikutuksesta Suomen siviilioikeuden tutkimuksessa vuosina 1920–1960 (<strong>Helsinki</strong>: Suomalainen<br />
lakimiesyhdistys 1988), 261–422.<br />
37 Heikki Pihlajamäki & Anu Pylkkänen, Suomalainen oikeustiede eurooppalaisessa traditiossa: Luen<strong>to</strong>ja<br />
oikeustieteen his<strong>to</strong>riasta (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong> 1996), 136–138. As noted, Ot<strong>to</strong> Brusiin had developed<br />
Finnish legal realism in the 1930s but his theories were widely discredited. (Id. at 113–124.)<br />
38 Simo Zitting, Perillisen oikeusasemasta [book review], LM 1968, 611.<br />
256
science interested legal scholars. Finnish legal thought was about <strong>to</strong> change, but it was<br />
also about <strong>to</strong> face a challenge of previously unseen magnitude.<br />
2.2 The rise of critical legal scholarship in the late 1960s<br />
As legal scholarship was facing general problems regarding the phrasing of questions,<br />
reasoning, and argument, a more critical trend was also developing. The 1960s in general<br />
was time of radicalization of youth and culture. Students at the universities were<br />
getting more involved in politics, and scholarship was drawing influences from the critical<br />
theories of Western Europe. At the same time, young legal scholars were also developing<br />
alternative methods with which <strong>to</strong> approach legal problems. The interest in<br />
philosophy and the rising social unrest then contributed <strong>to</strong> the development of critical<br />
legal thought.<br />
Legal philosophy was not in the mainstream of Finnish legal education or scholarship<br />
in the 1960s. It was practiced but not on a major scale, although the interest in<br />
philosophical questions had increased during the 1960s. Thus, a young, Swedishspeaking<br />
legal scholar in his late twenties, Lars D. Eriksson became seriously interested<br />
in legal philosophy during his study year in the United States in 1966. This was a time<br />
when American campuses were already places for radicalism. Besides the rising interest<br />
in legal philosophy, Eriksson was fascinated neither by the capitalist nature of the United<br />
States nor by the lack of program of the American radicals. 39 Finnish scholarship was<br />
in a need of new ideas, and international currents provided considerable influence that<br />
had <strong>to</strong> be adapted <strong>to</strong> the Finnish circumstances. The weak progressive legal profession<br />
and the conservative scholarship provided a fertile ground for counter-cultural elements<br />
in the legal academia.<br />
Critical and philosophical trends in Finnish jurisprudence became apparent by the<br />
mid-1960s. The <strong>fi</strong>rst critical analysis of legal reasoning was Eriksson’s article on legal<br />
argumentation and dialectical logic in which he argued that legal reasoning was not logic<br />
but dialectical argumentation, or simply rhe<strong>to</strong>ric. According <strong>to</strong> him, solutions followed<br />
from the values and premises of the decision-maker, and the process of the decision<br />
was structured within the inner logic of law. The arbitrary and evaluative character<br />
of legal reasoning was simply obscured by the legal language. Therefore, he concluded,<br />
legal argumentation ought <strong>to</strong> be open, and legal scholars ought <strong>to</strong> analyze the inner<br />
structure of legal reasoning. 40 Mostly on the basis of the recent philosophy of Perelman<br />
and Viehweg and American legal realism, Eriksson applied philosophical methods <strong>to</strong><br />
legal reasoning in order <strong>to</strong> point out its openness and impermanence. Besides the philosophical<br />
innovation, the radical <strong>to</strong>ne of the analysis was striking. Legal discretion was<br />
39 On Eriksson’s thoughts on his visit <strong>to</strong> America, see Lars D. Eriksson, Dyre Broder…, FBT 1–2/1966,<br />
71–73.<br />
40 Lars D. Eriksson, Rättslig argumentering och den dialektiska logiken, JFT 1966, 459–482.<br />
257
ecognized and scholars had called for more nuanced argumentation, but Eriksson argued<br />
that law was merely rhe<strong>to</strong>ric, based on values and premises which were partly<br />
built in<strong>to</strong> the legal structures. Thus the indeterminacy thesis, meaning that with the right<br />
arguments legal decisions could turn either way, entered Finnish jurisprudence.<br />
Another alternative trend, emphasizing methodological plurality and the valuebound<br />
nature of legal scholarship grew alongside the theory of legal indeterminacy. An<br />
important <strong>fi</strong>gure in this regard was Antero Jyränki, a legal scholar in his early thirties.<br />
During the 1960s, he stressed the importance of legal his<strong>to</strong>ry for legal scholarship, 41 and<br />
research on law in action instead of law in books. 42 In his doc<strong>to</strong>ral dissertation, which<br />
otherwise was a traditional analysis on the powers of the President of Finland over the<br />
military forces, he stressed the fact that legal interpretation was inevitably valuebound.<br />
43 Later he elaborated this notion further, pointing out that eclectic analysis of the<br />
Constitution could open up countless dimensions in sorting out the legal reality. 44 Obvious<br />
in the literature were the emphasis on the inherent position of values in law and in<br />
legal scholarship, as well as his support for eclectic and open research. Jyränki was also<br />
critical of the tradition of constitutional scholarship in Finland because of its formalist<br />
nature and the neglect of values and social aspects. In these respects, Jyränki was following<br />
American realism and the recent Scandinavian alternative legal scholarship.<br />
Critical legal scholarship was thus heading in two directions in the latter half of<br />
the 1960s. On the one hand, there was the critical analysis of legal reasoning, arguing<br />
that legal decision-making was not logic but indeterminate and rather a question of argumentation<br />
and rhe<strong>to</strong>ric. On the other hand, there was the criticism of doctrinal analysis,<br />
arguing that instead of law in books, scholarship should focus on law in action from<br />
various perspectives using various methods. The criticism of traditional legal scholarship<br />
was thus evident. Although there was no single de<strong>fi</strong>nition of traditional legal scholarship,<br />
it was mainly characterized by doctrinal analysis and the pursuit of rationality<br />
and neutrality. In the last resort, then, it was the common faith of the legal profession on<br />
legal certainty and the au<strong>to</strong>nomy of legal scholarship that was being questioned. Critical<br />
legal scholars thus adopted a completely different perspective on law and legal scholarship<br />
than the traditional profession in Finland, as they did in the United States and<br />
Scandinavia, as we saw in the previous chapters.<br />
The late 1960s was a time of debate on the rights of the citizen and on rationality<br />
of the administration of justice in general. In 1967, Eriksson edited a political pamphlet<br />
criticizing the arbitrary and discrimina<strong>to</strong>ry character of the system of treatment in which<br />
people were institutionalized “for their own good,” 45 and in 1968 the publishing company<br />
Tammi founded the Huu<strong>to</strong>merkki (exclamation mark) series that was <strong>to</strong> become a<br />
41 Antero Jyränki, Ministerimyötävaikutuksen his<strong>to</strong>riallisesta taustasta ja kehityksestä Suomessa ja Ruotsissa,<br />
JFT 1963, 30–53.<br />
42 Antero Jyränki, Yhdysvaltain ja Suomen presidentin aseman vertailua, Politiikka 1962, 208–244.<br />
43 Antero Jyränki, Sotavoiman ylin päällikkyys: Tutkimus tasavallan presidentille HM 30 §:n nojalla<br />
kuuluvasta <strong>to</strong>imivallasta ja sen käyttämisestä (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1967), 302–303.<br />
44 Antero Jyränki, Näkökohtia Suomen perusoikeusjärjestelmästä, LM 1968, 982–999.<br />
45 Lars D. Eriksson (ed.), Pakkoauttajat (<strong>Helsinki</strong>: Tammi 1967).<br />
258
publishing channel for pamphlets of social, political, and legal criticism. 46 On the other<br />
hand, 1968 also marked the Finnish translation of Hans Kelsen’s Pure Theory of Law. 47<br />
There was also a need for positivist, normative analysis, since traditional scholarship<br />
maintained the ideals of legal au<strong>to</strong>nomy and rationality. The critical thought, however,<br />
questioned the old authorities, and since the general atmosphere provided encouraging<br />
circumstances, the criticism was becoming harsher.<br />
The idea of au<strong>to</strong>nomous jurisprudence irritated the critical legal scholars, who<br />
thought that jurisprudence had <strong>to</strong> open itself up <strong>to</strong>ward society in order <strong>to</strong> ful<strong>fi</strong>ll its<br />
functions. In the pursuit of socially oriented legal scholarship, Eriksson followed the<br />
recent Scandinavian theories on sociological jurisprudence but was not pleased with<br />
them. He nonetheless did recognize the need for flexible argumentation in judicial decision-making<br />
which, he claimed, was already replete with value arguments, which were<br />
simply not explicitly articulated. 48 Therefore, he declared, legal scholarship and argumentation<br />
had <strong>to</strong> contemplate the social circumstances <strong>to</strong>gether with social scienti<strong>fi</strong>c<br />
data in order <strong>to</strong> become realistic and respond <strong>to</strong> contemporary needs. 49 Distinctive of the<br />
alternative perception of legal scholarship was the willingness <strong>to</strong> take the social functions<br />
of law seriously and pay attention <strong>to</strong> its realities. In Scandinavia, legal scholars<br />
hoped <strong>to</strong> systematize the alternative approach in the late 1960s, and there was interest in<br />
this in Finland as well. What was lacking, however, was a systematic analysis of the<br />
theoretical premises of critical legal theory.<br />
Critical legal scholarship thus needed a program because, according <strong>to</strong> the criticism,<br />
traditional scholarship was unable <strong>to</strong> respond <strong>to</strong> contemporary needs. Eriksson<br />
laid the basis for critical legal scholarship in the 1960s, arguing that the social sciences,<br />
including legal scholarship, were based on assumptions which were concealed or presented<br />
as facts. According <strong>to</strong> Eriksson, traditional legal scholarship was based on three<br />
premises, which were the au<strong>to</strong>nomy of jurisprudence, its neutrality, and the harmony of<br />
the legal system. Therefore, traditional scholarship was static and conservative, and critical<br />
scholarship was needed <strong>to</strong> disclose the values and ideologies in law. 50 Although his<br />
short article was rather a proclamation than a systematic examination of the theoretical<br />
basis, Eriksson described all the fundamental elements for a critical legal scholarship<br />
project. The article was also typical of the critical thought of the late 1960s, since it described<br />
the traditional scholarship as uncritical, formalist, and unrealistic, thus ridiculing<br />
the tradition.<br />
46 The books in the series <strong>to</strong>ok critical positions on contemporary domestic and international problems.<br />
Legal critiques included Jyrki Tala (ed.), Kantajana kansalainen: Raportti oikeusturvasta (<strong>Helsinki</strong>: Tammi<br />
1969); Heikki Karapuu (ed.), Harvojen tasavalta: Perustuslain epädemokraattisuus (<strong>Helsinki</strong>: Tammi<br />
1970).<br />
47 Hans Kelsen, Puhdas oikeusoppi (<strong>Helsinki</strong>: WSOY 1968).<br />
48 Lars D. Eriksson, Samhällstillvänd juridik, JFT 1968, 565–583. Eriksson reviewed the books of the<br />
Swede Per Olof Bolding and the Norwegian Carl August Fleischer. These books are dealt with in chapter<br />
four. Despite the critical response of Eriksson, Finnish legal scholars followed the Scandinavian legal<br />
scholarship and drew influence from that.<br />
49 Eriksson 1968, supra n. 48 at 578, 582–583.<br />
50 Lars D. Eriksson, För en kritisk rättsvetenskap, Contra 1/1969, 12–14.<br />
259
Critical legal thought was thus emerging in the late 1960s. Finnish legal scholarship<br />
was opening up <strong>to</strong>wards international and philosophical influences in general,<br />
some of which were used <strong>to</strong> develop more critical theories about jurisprudence. A crucial<br />
event in the development of this critical thought was the publication of the doc<strong>to</strong>ral<br />
dissertation by Antti Kivivuori (b. 1940) in 1969. The treatise was about the Finnish law<br />
of <strong>to</strong>rts in the nineteenth century. For our purposes, however, its most interesting part<br />
was the introduction in which the methods were explained. Kivivuori argued that the<br />
traditional question of Finnish legal scholarship, namely what was the correct solution<br />
<strong>to</strong> a given legal problem according <strong>to</strong> the law in force, was not a meaningful scholarly<br />
question, because the purpose of law was <strong>to</strong> control and direct human behavior. Meaningful<br />
scholarly problems, therefore, related <strong>to</strong> the explanation of legal behavior, and<br />
the purposes, functions, and effects of law. 51 Besides giving a powerful impetus <strong>to</strong> the<br />
debates on legal scholarship, the publication of the Kivivuori dissertation was the beginning<br />
of behaviorist and political jurisprudence in Finland. The influences of the theory<br />
came mostly from philosophy, the most important influence being the Finnish philosopher<br />
Georg Henrik von Wright, and its idea was <strong>to</strong> explain the behavior of the legisla<strong>to</strong>r.<br />
It was also noteworthy that alternative methodology and criticism of traditional<br />
legal scholarship were explicitly highlighted in a doc<strong>to</strong>ral thesis. It was possible <strong>to</strong> point<br />
out the usefulness of the new methods by dismissing traditional scholarship as scienti<strong>fi</strong>cally<br />
meaningless. The controversy over the methods of legal scholarship was also clear<br />
in the emphasis on the use of social science in legal research. These critical notions anticipated<br />
an academic quarrel that had been simmering for the previous couple of years.<br />
The smoldering controversy over the nature of legal scholarship flared up after the<br />
publication of Kivivuori’s dissertation. Eriksson and Kivivuori criticized the jurisprudential<br />
tradition, calling for alternative scholarship <strong>to</strong> purge jurisprudence of its inconsistencies<br />
and absurdities. The tradition, however, was not ready <strong>to</strong> accept such critical<br />
arguments. The spokesman for a more traditional legal scholarship was Aarnio. For<br />
him, the question as <strong>to</strong> whether legal scholarship was a science was not appropriate because<br />
of the conventionality of the criteria of science. He admitted that jurisprudence<br />
involved much argumentation and interpretation, but denied that legal scholarship, especially<br />
analytical jurisprudence, was unrealistic or conservative. 52 Aarnio’s reply attempted<br />
<strong>to</strong> maintain the au<strong>to</strong>nomy of legal scholarship and the rationality of law <strong>to</strong> a<br />
certain extent. Although he admitted that there was a place for alternative scholarship,<br />
and that jurisprudence was argumentation <strong>to</strong> a considerable extent, he did not consider<br />
them <strong>to</strong> be in the mainstream of jurisprudence. This defense was an attempt <strong>to</strong> distinguish<br />
law from politics at a general level, pointing out the major controversy between<br />
the critical and traditional views, since the critical scholars were not willing <strong>to</strong> accept<br />
the distinction.<br />
51 Antti Kivivuori, Suomen vahingonkorvauslainsäädännön kehitys I: Rikoslainsäädäntö 1809–1875 (<strong>Helsinki</strong>:<br />
Helsingin yliopis<strong>to</strong>n yksityisoikeuden lai<strong>to</strong>ksen julkaisuja 1969), 25–26.<br />
52 Aulis Aarnio, Juridisen tutkimuksen näköaloja, JFT 1969, 374, 376–382, 384–404.<br />
260
Aarnio’s reply thus fuelled the debates. According <strong>to</strong> Kivivuori, the problem never<br />
was about the scienti<strong>fi</strong>c nature of legal scholarship, but about its meaningfulness and<br />
rationality. He argued that Aarnio had simply shown the weaknesses of analytical jurisprudence<br />
while stating that legal behavior was a subject of jurisprudence and assimilating<br />
the process of political and legal decision-making, but then denying the role of explaining<br />
the behavior and making a strict distinction between law and politics. 53 Eriksson<br />
argued that analytical jurisprudence focused on trivial questions while examining<br />
legal concepts and did not concentrate on the questions beyond the concepts. The narrow<br />
perspective of traditional scholars neglected structural aspects relating <strong>to</strong> values and<br />
interpretation. 54 The defense of a more traditional legal scholarship pushed the critical<br />
debates further by offering counter-arguments <strong>to</strong> which the critical scholars could respond<br />
and thus criticize the tradition even further.<br />
The quarrel clari<strong>fi</strong>ed the controversy that was about the nature and purposes of legal<br />
scholarship. The critical scholars were not that far removed from Aarnio’s views,<br />
because in his reply, Aarnio demonstrated that analytical jurisprudence did not exclude<br />
any problems from research and that Eriksson had simply over-emphasized the role of<br />
values in judicial decision-making. 55 In addition, he argued that Kivivuori’s critique was<br />
based on misreading and misunderstanding and was therefore off the mark. 56 Regarding<br />
the major parts, however, the controversy was clear. Critical legal scholars were after a<br />
political and “critical” legal scholarship, whereas the more traditional view was that<br />
these were simply parts of legal scholarship at best. The critical scholars also disagreed<br />
on some points. Eriksson criticized Kivivuori for his descriptive approach, 57 Kivivuori<br />
replying that descriptivism also had political goals and criticizing Eriksson for ambiguity.<br />
58 The debate was expanding in<strong>to</strong> an exchange about the nature and purpose of law<br />
and legal scholarship. Many of the scholars shared a theoretical basis <strong>to</strong> some extent,<br />
but disagreed on its purposes. Critical legal scholarship attacked the traditional concept<br />
of law and legal scholarship because they thought that these could not be used in a<br />
meaningful way in modern society.<br />
The rebellion on the methods of legal scholarship was open and apparent by the<br />
end of the 1960s. Following European, Scandinavian, and Finnish debates on alternative<br />
legal scholarship, Jyränki proposed a few critical theses about jurisprudence. According<br />
<strong>to</strong> him, legal scholarship had <strong>to</strong> be integrated with social science and had <strong>to</strong> consider all<br />
the socially relevant legal institutions. Legal scholarship needed various methods and<br />
perspectives because of the complexity of legal phenomena and because of their ele-<br />
53 Antti Kivivuori, Oikeustieteen ongelmia, JFT 1969, 407–411.<br />
54 Lars D. Eriksson, Värderingar, fakta och juridik, JFT 1969, 419–423.<br />
55 Aulis Aarnio, Om rättsvetenskapens satser: Replik till Lars D. Erikssons kritik, JFT 1969, 558–560,<br />
566–572.<br />
56 Aulis Aarnio, Muutama oikaisu oikeushis<strong>to</strong>rioitsijan mietteisiin, JFT 1969, 573–578. Kivivuori had<br />
indeed criticized Aarnio quite harshly, which may have contributed <strong>to</strong> the fact that Aarnio criticized him<br />
more than Eriksson who had been more restrained in his criticism.<br />
57 Eriksson 1969, supra n. 54 at 427–428.<br />
58 Antti Kivivuori, Rättsvetenskapens problem: Svar till Lars D. Eriksson, JFT 1969, 580–581.<br />
261
mentary ties with society, which the traditional analysis could not grasp. 59 The international<br />
aspect and the central elements of the critical legal scholarship were apparent in<br />
this article. The critical thought regarded traditional legal scholarship as serving the<br />
interests of the old, conservative element of the legal profession, as well as capitalist<br />
interests. Critical scholars sought <strong>to</strong> expose the connection between society and the law<br />
and the fact that the law and traditional legal scholarship were biased <strong>to</strong>wards powerful<br />
social interests and unable <strong>to</strong> go beyond the surface. Depicting traditional jurisprudence<br />
as conservative and thus stressing the reforming aspects of the alternatives was evident<br />
in the critical pursuit.<br />
Critical scholars pursued change. To picture the legal profession as a guardian of<br />
social hierarchies was thus a major aspect of critical scholarship. This was also the purpose<br />
of Raimo Blom’s study on national con<strong>fi</strong>dence in the judiciary. This was an empirical<br />
survey on what people thought about the impartiality of the judiciary, which<br />
showed that there was a general lack of con<strong>fi</strong>dence in the courts. 60 In his speech given<br />
before the public examination of the dissertation, Blom straightforwardly announced<br />
that social status had an impact on the decisions of the courts and that the judiciary’s<br />
treatment of the people was inequitable. 61 The study provoked serious discussion, 62 and<br />
even though the traditional scholars argued that it revealed more about people’s attitudes<br />
than about the reality of the judiciary, 63 it was often regarded as an expression of<br />
class-based law. Critical scholarship sought <strong>to</strong> disclose the biased nature of law and the<br />
legal system. By turning the facts of research in<strong>to</strong> facts about the administration of justice,<br />
the arguments could be used as a criticism of the legal system. Methods of research<br />
were one thing, and their use was another. Since critical scholarship often reflected a<br />
perspective on law that deviated from the tradition, its results were used <strong>to</strong> criticize the<br />
prevailing circumstances. An empirical survey as such was not particularly radical, but<br />
it provided ammunition for criticism.<br />
The treatise by Blom pointed out the rising trends in Finnish alternative and critical<br />
legal scholarship. As a study, it was an empirical survey, demonstrating that people<br />
did not have great con<strong>fi</strong>dence in the judiciary. It reflected the rise of the empirical legal<br />
research and the combination of jurisprudence and social science. As a criticism, it reflected<br />
the leftist antagonism against social hierarchies and the structures of power. It<br />
was also an expression of the international trends in Finnish legal scholarship, because<br />
studies on the impacts of social status on judicial decisions were popular in Scandinavia<br />
and the United States, as we saw earlier, and Blom referred <strong>to</strong> these in his book. It can<br />
thus be considered as an empirical, sociological-political jurisprudence. Critical and<br />
alternative legal scholarship, as well as the rebellion on the methods of jurisprudence,<br />
59 Antero Jyränki, Teesejä juridiikasta ja juristeista, LM 1969, 887–891.<br />
60 Raimo Blom, Luottamus oikeuslai<strong>to</strong>kseen (Tampere: Tampereen yliopis<strong>to</strong> 1970).<br />
61 Raimo Blom, Luottamus oikeuslai<strong>to</strong>kseen, Lakimiesuutiset 2/1970, 6–7.<br />
62 See Lakimiesuutiset 2/1970, 10–16.<br />
63 Jaakko Uotila, Lakimiesuutiset 3/1970, 5–6 [untitled article].<br />
262
were general international trends, and Finnish legal scholarship followed them, adapting<br />
them <strong>to</strong> its own circumstances.<br />
As the 1960s turned in<strong>to</strong> the 1970s, debates on legal scholarship became more<br />
general, as well as more intense and nuanced, and more and more scholars participated.<br />
Jyränki argued that law, and hence legal scholarship as well, was not some special <strong>fi</strong>eld<br />
but part of social <strong>to</strong>tality. Thus, legal scholarship should use all kinds of social science<br />
methods and should focus on law as part of social <strong>to</strong>tality. 64 Hannu Tapani Klami<br />
(1945–2002), an exceptionally talented young legal scholar who had specialized in legal<br />
his<strong>to</strong>ry and philosophy, criticized traditional positivism and analytical jurisprudence for<br />
their one-sided perspective, and the recent critical legal scholarship for its political orientation.<br />
He argued that legal scholarship should use his<strong>to</strong>rical methods in pursuit of the<br />
purposes of law, thus obtaining a teleological analysis determining the consequences of<br />
law. 65 Juha Tolonen (b. 1941) argued that both traditional positivism and recent empiricism<br />
had good qualities but were insuf<strong>fi</strong>cient alone. He stressed the fact that since law<br />
was always human activity in pursuit of certain goals, legal scholarship should continuously<br />
criticize, not only legal rules but also the understanding of the rules, in order <strong>to</strong><br />
improve the system. 66 Aarnio replied that the critics of analytical jurisprudence had<br />
misunders<strong>to</strong>od it. He continued <strong>to</strong> emphasize the signi<strong>fi</strong>cance of semantic analysis in<br />
legal scholarship because many problems followed from linguistic inaccuracies. 67 The<br />
criticism always reflected the image of traditional jurisprudence of the alternative scholars,<br />
who were dissatis<strong>fi</strong>ed with contemporary legal scholarship and encouraged broader<br />
perspective for it. Whether the tradition was as formalist as the critics depicted it is a<br />
matter of debate, but there was a genuine frustration with it. The extent of the debates<br />
indicates the general willingness <strong>to</strong> change the tradition. Alternative views on legal<br />
scholarship were thus quite common, and the critical aspect was an extreme articulation<br />
of the more general trend.<br />
Legal scholars became more interested in judicial decision-making as political activity<br />
in the early 1970s, 68 and the criticism of legal scholarship was also becoming<br />
more strident. Kivivuori argued that analytical jurisprudence was the follower of conceptualism,<br />
and that it had been unable <strong>to</strong> produce clear questions for legal scholarship.<br />
It ignored the preliminary works of law drafting, thus neglecting important sources, and<br />
it also analyzed legislation and argumentation impersonally, thus masking the political<br />
biases of law and legal scholarship. 69 Aarnio was upset that the criticism was directed<br />
against analytical jurisprudence, arguing that Kivivuori’s methods were often meaningless<br />
in sorting out solutions <strong>to</strong> practical legal problems. He also argued that legal interpretation<br />
was not absolutely free, as Kivivuori had argued, and that issues of private law<br />
64 Antero Jyränki, Valtio-oppi ja oikeustiede, Politiikka 2/1970, 117–123.<br />
65 Hannu Tapani Klami, His<strong>to</strong>rialliset aspektit positiivisoikeudellisessa tutkimuksessa, LM 1970, 51–60.<br />
66 Juha Tolonen, Muutamia näkökohtia oikeustieteen nykytilasta, LM 1970, 141–153.<br />
67 Aulis Aarnio, Sananen “lakipositivismista”, LM 1970, 276–288.<br />
68 Heikki Jokela, Tuomari lainsäätäjänä, LM 1970, 840–850.<br />
69 Antti Kivivuori, Suomalaisen oikeustieteen virheet I, LM 1970, 422–429.<br />
263
were not political. 70 Kivivuori replied that Aarnio had missed the politically relevant<br />
substance in legal problems and thus masked the political nature of law in the way traditional<br />
legal scholars tended <strong>to</strong> do. 71 Although interpretation and discretion were widely<br />
acknowledged, critical scholars were more convinced about their pervasive and political<br />
nature than the more traditional scholars. Furthermore, the critical scholars were not<br />
particularly pleased with the attempt <strong>to</strong> explain the legal language because they opined<br />
that it simply masked the real problems. According <strong>to</strong> the critical argument, since the<br />
problems of law and legal scholarship were embedded in the legal structures and the<br />
ideology on which the law was based, there was a need for a more thorough and critical<br />
analysis.<br />
Just as the debates on legal scholarship were heating up at the beginning of the<br />
1970s, a considerable boost was provided. The President of Finland, who had been in<br />
of<strong>fi</strong>ce since 1956, had his 70 th birthday in September 1970, and there was an interview<br />
in the most prestigious Finnish law review, Lakimies, later continued on radio. President<br />
Kekkonen, an authoritative <strong>fi</strong>gure in Finland in the 1970s, was known for his tight control<br />
of both domestic and foreign affairs and his continuous meddling in them. The interview<br />
was, however, an extraordinary criticism of the Finnish legal system. Kekkonen<br />
<strong>to</strong>ok a stand on the national lack of con<strong>fi</strong>dence in the judiciary, commenting that the law<br />
and the courts produced inequality. He also tackled the problems of legislation, the conservative<br />
nature of legal scholarship and education, the political nature of the judiciary,<br />
discrimination in the administration of justice, and noted the need <strong>to</strong> reconsider the division<br />
of state powers in modern society. 72 The interview had a wide-ranged agenda on<br />
various important contemporary <strong>to</strong>pics, and since the President was a signi<strong>fi</strong>cant <strong>fi</strong>gure,<br />
his opinions on the issues interested many people.<br />
More important than the questions were the answers, which indeed were intriguing.<br />
By referring <strong>to</strong> Blom’s study, for example, President Kekkonen argued that Finnish<br />
law was in many ways outdated and treated people unequally on the basis of their<br />
social status. 73 He also said that legal scholarship was mostly conservative, lacked an<br />
empirical approach, and was often political, although mostly unconsciously. 74 The President<br />
thus said what the critical scholars had argued for the past couple of years, namely<br />
that legal scholarship was ideological and political, but because of its formalist nature<br />
and the denial of the scholars, the political character was masked, and hence legal<br />
scholarship was conservative. The President’s harsh words confused the legal profession,<br />
and a crisis in law seemed <strong>to</strong> be in the of<strong>fi</strong>ng.<br />
However, there was a catch. The questions of the interview were carefully framed<br />
by three legal scholars, Aulis Aarnio, Matti Savolainen and Ilmari Ojanen, all members<br />
of the Social Democratic Party. In addition, before replying, the President talked with a<br />
70 Aulis Aarnio, Analyysistä, käyttäytymisen selittämisestä ja vähän muustakin, LM 1970, 569–578, 584–<br />
588.<br />
71 Antti Kivivuori, Suomalaisen oikeustieteen virheet II, LM 1970, 934–937.<br />
72 Urho Kaleva Kekkonen, Kansanvallasta ja sen <strong>to</strong>teutumisesta lainkäytössä, LM 6/1970, i–xxi.<br />
73 Id. at iii–vii.<br />
74 Id. at xii–xiv.<br />
264
group of legal scholars, who were Antero Jyränki, Lars D. Eriksson, Antti Kivivuori,<br />
Raimo Blom and Olavi Heinonen, also all members of the political left. 75 Furthermore,<br />
as should be obvious by now, the scholars behind the interview were active participants<br />
on the critical side of the debates on legal scholarship. The framers of the questions<br />
were all young legal scholars favoring alternative perspectives on legal scholarship,<br />
even if Aarnio’s position was problematic, since he rejected the most critical arguments.<br />
Those who advised the President, on the other hand, were active proponents of critical<br />
or alternative legal scholarship and strongly on the left in politics. Needless <strong>to</strong> say, the<br />
questions conformed precisely <strong>to</strong> the agenda of the critical legal scholars, and the President’s<br />
answers mirrored their arguments.<br />
Whatever the truth behind the interview was, it pointed out the turbulent situation<br />
in legal scholarship and stirred the already restive atmosphere. The majority of the legal<br />
profession disagreed with the President’s insights. 76 Although closely managed by the<br />
critical legal scholars, the President reflected the general critical atmosphere of the time<br />
and probably wanted <strong>to</strong> ginger up debates on social reforms. 77 The interview was nonetheless<br />
a sharp criticism of the legal system, expressed in <strong>to</strong>ugh and uncompromising<br />
terms. Its purpose was obviously <strong>to</strong> provoke discussion and <strong>to</strong> contribute <strong>to</strong> the possible<br />
changes in the legal system and in academic legal scholarship. Because of the authority<br />
of the President and the severe <strong>to</strong>ne, the interview was very dif<strong>fi</strong>cult <strong>to</strong> ignore. Legal<br />
scholarship was facing new problems which had <strong>to</strong> be dealt with.<br />
Indeed, the interview intensi<strong>fi</strong>ed the discussion. For some, it pointed out the need<br />
<strong>to</strong> observe the values and social functions of law in legal scholarship and education. 78<br />
Traditional scholars, however, responded that the critique was exaggerated and missed<br />
the point in many ways. Paavo Kastari argued that the President’s critique was so harsh<br />
that it rather closed than invited discussion. 79 Juha Vikatmaa noted that there was a need<br />
<strong>to</strong> reform legal scholarship, but it nevertheless was an exaggeration <strong>to</strong> talk about ideological<br />
one-sidedness or lack of empirical research. 80 Simo Zitting also greeted discussion<br />
about scholarship but criticized the critical scholars for turning scholarship in<strong>to</strong><br />
ideology. 81 The need <strong>to</strong> change legal scholarship was generally acknowledged but the<br />
critical scholars <strong>to</strong>ok the reform <strong>to</strong> an extreme. Whereas the critical view saw that legal<br />
75 Jyränki has revealed the background of the interview in his memoirs. (Antero Jyränki, Kolme vuotta<br />
linnassa: Muistiinpanoja ja jälkiviisautta (Juva: Werner Söderström Osakeyhtiö 1990), 258–265.)<br />
76 Jussi Pajuoja & Kaijus Ervasti, Suomen lakimieslii<strong>to</strong>n his<strong>to</strong>ria (Jyväskylä: Lakimieslii<strong>to</strong>n kustannus<br />
1994), 147–151.<br />
77 Kekkonen 1998, supra n. 6 at 113, n. 113. Although the actual impact of the “preparation” on the outcome<br />
of the interview is doubtful, it obviously had some influence on it since the replies were precisely<br />
those that the critical scholars endorsed. The president was himself a jurist by education, but by 1970 he<br />
had been involved in politics for decades, which meant that his criticism was probably more political than<br />
legal. It is therefore possible that the interview served different purposes, being bene<strong>fi</strong>cial for both the<br />
President and the legal scholars. For the President it was opportunity <strong>to</strong> rap the knuckles of his political<br />
opponents, while the critical legal scholars gained an authoritative advocate for their cause.<br />
78 Eero Routamo, Rättsvetenskaplig forskning och undervisning, JFT 1970, 417–427.<br />
79 Paavo Kastari, Oikeuslai<strong>to</strong>s, politiikka ja ideologia, LM 1970, 993.<br />
80 Juha Vikatmaa, Uudistusta tarvitaan, mutta mihin suuntaan? LM 1970, 1013–1015.<br />
81 Simo Zitting, Eräitä ajatuksia oikeustieteen uudistuspyrinnöistä, LM 1970, 1111, 1114.<br />
265
scholarship was ideological and should be openly so, the more traditional scholars argued<br />
that it was not and was not supposed <strong>to</strong> be. At the beginning of the 1970s, scholars<br />
were willing <strong>to</strong> discuss reform, but the difference between critical and traditional scholars<br />
was in their perception of the world and thus fundamental. Critical legal scholarship<br />
represented a completely different cultural attitude <strong>to</strong>wards law.<br />
Legal scholars were, in any event, interested in the presidential interview, and<br />
some of them brought more reformist views <strong>to</strong> the issue. Some scholars paid attention <strong>to</strong><br />
judicial decision-making. Eero Backman continued the argument that a judicial decision<br />
was not a logical syllogism but was dependent on the choice of the premises of the decision<br />
and the interpretation of the facts of the case, as well as the legal rules. The interpretation<br />
was further structured by personal experience and social ideology. 82 Makkonen<br />
wrote that evaluations had an impact on judicial decision-making although it was<br />
dif<strong>fi</strong>cult <strong>to</strong> specify this in particular cases. 83 Some scholars were interested in general<br />
issues. Ojanen argued that there was a clear division between normative arguments and<br />
descriptions of facts, and the former could not be derived from the latter. Therefore,<br />
legal scholars had <strong>to</strong> realize that their profession was also a part of politics. 84 Tolonen<br />
argued that legal scholarship should not focus simply on valid law but rather on the development<br />
of legal institutions in a broad socio-political context in order <strong>to</strong> improve the<br />
system. 85 Alternative legal scholars were fascinated by this asperity and wanted <strong>to</strong> point<br />
out the reasons for the criticism. Although the majority of the academic profession remained<br />
traditional, the spirit of reform was widespread. Various arguments for alternative<br />
scholarship were offered, the critical notions being the most radical.<br />
Finnish legal scholarship was moving in a realistic direction in the 1960s, which<br />
obviously reflected the trends in the United States and Scandinavia. Since the American<br />
and Scandinavian jurisprudential traditions were much more realist than the Finnish<br />
tradition at the beginning of the decade, Finnish critical scholarship was more radical<br />
from the beginning. Finland lacked a powerful alternative <strong>to</strong> the tradition, and thus the<br />
critical bloc was small but aggressive. During the 1960s, various sociological approaches<br />
as well as criticism of legal reasoning and scholarship emerged, and by the end of the<br />
decade, a rebellion against the tradition had begun. The major scholarly mo<strong>to</strong>rs of the<br />
rebellion were the various philosophical schools, including American realism and political<br />
jurisprudence, and Scandinavian alternative legal scholarship, but the critique obviously<br />
also followed the radicalization of society. Young legal scholars thought that the<br />
jurisprudential tradition was out of <strong>to</strong>uch with the social reality and wanted <strong>to</strong> reform<br />
the tradition.<br />
By and large, however, the rise of critical legal scholarship at the end of the 1960s<br />
in Finland was similar <strong>to</strong> the United States and Scandinavia. The central elements of<br />
82 Eero Backman, Oikeudellisen ratkaisun loogisista perusteista, LM 1970, 1039–1041, 1050–1054.<br />
83 Kaarle Makkonen, Lainkäyttö ja maailmankatsomus, LM 1970, 1066.<br />
84 Ilmari Ojanen, Staattisesta dynaamiseen oikeuteen ─ Ajatuksia oikeustieteen ei-normatiivisesta ja normatiivisesta<br />
kielestä, LM 1970, 1083–1095.<br />
85 Juha Tolonen, Oikeustieteen puutteista, LM 1970, 1100–1108.<br />
266
critical scholarship and its ideological background in the critique of formalist jurisprudence,<br />
the emphasis on the his<strong>to</strong>ricity and the ideological nature of law, and the emphasis<br />
on the rights of the citizen, were established in the 1960s. As we saw, the basic<br />
premises of critical legal scholarship were similar in the United States, Scandinavia, and<br />
Finland. Although Finnish legal scholarship was more conceptual and formalist than the<br />
legal thought in the United States and Scandinavia, Finnish legal scholars were adopting<br />
more realist tendencies in the 1960s. With both the application of various philosophical<br />
theories and social sciences and the rise of the social radicalism, jurisprudence was acquiring<br />
a more critical voice in the late 1960s. The critical legal scholars, then, attacked<br />
the traditional conception of legal reasoning and scholarship, depicted them in a very<br />
formalist sense, and argued for a <strong>to</strong>tal alteration of the basis of the tradition. In Finland,<br />
the 1960s was the <strong>fi</strong>rst time that such a wide-scale attack on the tradition occurred.<br />
Thus, the critical scholars of the 1960s made all the critical arguments at once, and the<br />
critique was very radical. By the late 1960s, the major schools of alternative and critical<br />
legal scholarship, political-behaviorist jurisprudence, empirical and social scienti<strong>fi</strong>c<br />
legal research, and the critique of values had all emerged in Finnish legal scholarship.<br />
Within a few years, the more critical notions about legal scholarship had entered<br />
the stage of legal discourse. By the mid-1960s, Finnish legal scholars became more interested<br />
in the problems of legal scholarship and reasoning. Their theoretical literature<br />
was increasingly directed at the indeterminate and political nature of legal scholarship<br />
and practice. In the late 1960s, critical legal scholars attacked this notion by arguing that<br />
law was completely indeterminate and that traditional jurisprudence was doomed <strong>to</strong> fail.<br />
Thus, both legal scholarship and practice had <strong>to</strong> change. There were vehement articles<br />
spreading the critical arguments which were, then, gathered up in the interview with<br />
Kekkonen, which exacerbated both the defense of the traditional law and jurisprudence<br />
and their criticism. The atmosphere was congenial for legal polemic, and the following<br />
decade proved fertile for alternative and critical scholarship.<br />
2.3 The elaboration of critical legal thought, 1970─1976<br />
The 1960s had created the basis for the time of change in the early 1970s. In the 1960s,<br />
law students had become radicalized and active in university politics, 86 and although<br />
lawyers were not the prime mover of social radicalism and reform, they did participate<br />
in the activities of the single cause movements. 87 A major event describing the new,<br />
alternative thought of the jurists in the 1970s was the revival of the Association of<br />
Democratic Lawyers. It was originally founded in 1954 <strong>to</strong> associate with international<br />
86 Mia Korpiola, Ystäviä, politiikkaa ja oikeustieteen opin<strong>to</strong>ja: Pykälä Ry 1935─2010 (<strong>Helsinki</strong>: Edita<br />
2010), 154–193.<br />
87 Heikki Pihlajamäki, Kansan ja esivallan välissä: Suomalaisen asianajajakunnan his<strong>to</strong>ria (<strong>Helsinki</strong>:<br />
Edita 2009), 229.<br />
267
leftist lawyers and human rights associations and <strong>to</strong> promote democracy in Finland. 88<br />
By the beginning of the 1970s, the association had withered. However, there was a lot<br />
of discussion about extending its ideological basis because many of the leftist lawyers<br />
of the 1970s felt that the Association of Finnish Lawyers was ideologically one-sided<br />
and conservative. 89 Thus, the Association of Democratic Lawyers was reformed and<br />
revitalized, and began <strong>to</strong> acquire lots of new members. 90 The revival of the association<br />
contributed <strong>to</strong> the organization of reformist lawyers and legal scholars and therefore<br />
also <strong>to</strong> the discussions about law and politics. 91 As more and more lawyers and legal<br />
scholars had become interested in politics, reform, leftism, and alternative legal scholarship,<br />
a need was felt <strong>to</strong> have an organization for the common cause. That organization<br />
already existed, but it simply needed some adjustments. Critical thought was about <strong>to</strong><br />
expand.<br />
Another major trend in the 1970s, though it had begun earlier, was the reorientation<br />
of philosophy and the rise of the theory of science. Finnish philosophy and social<br />
sciences were dominated by the analytical tradition and logical positivism, but in the<br />
1960s and 1970s, competing schools of thought emerged <strong>to</strong> explain social phenomena,<br />
and scholars became increasingly critical of explaining the social reality through simple<br />
observations. 92 Among the new trends was Marxism, which became influential, especially<br />
in sociology, but in other disciplines as well. 93 Following Kuhn and the concept<br />
of the paradigm, scholars began <strong>to</strong> examine the basis of their scholarship. 94 Finnish philosophy,<br />
sociology, and social and political sciences expanded in the wake of international<br />
philosophical trends. New schools of thought appeared and the traditional schools<br />
were being criticized. These also had their impact on legal scholarship.<br />
The changes in scholarship and especially the debate on the nature of legal scholarship<br />
that began at the end of the 1960s produced thoroughgoing changes in legal<br />
scholarship. An obvious expression of the transformation was the establishment of legal<br />
research and education at the University of Tampere. Legal education was not located in<br />
the law faculty, and cross-disciplinary methods came <strong>to</strong> mark the research, which set<br />
out <strong>to</strong> explain the human behavior underlying the law, not simply the law itself. 95 The<br />
scholarship at Tampere was a clear attempt <strong>to</strong> challenge both the traditional legal schol-<br />
88 Markku Fredman, DEMLA RY – Vähän yli 50 vuotta, Oikeus 2005, 436–438.<br />
89 Jyränki 1990, supra n. 75 at 269–270; Pajuoja & Ervasti 1994, supra n. 76 at 156–158.<br />
90 Fredman 2005, supra n. 88 at 440–444.<br />
91 Per Lindholm & Heikki Seppänen (eds.), Oikeus ja politiikka (Jyväskylä: K.J. Gummerus 1971).<br />
92 See Sosiologia 3/1971, 97–180; Ilkka Heiskanen, Sosiaalitieteitten “uudesta” me<strong>to</strong>dologisesta keskustelusta<br />
ja sen merkityksestä politiikan tutkimukselle, Politiikka 1/1971, 27–53.<br />
93 Antti Eskola, Länsimainen ja marxilainen sosiologia, Sosiologia 4/1970, 211–216; Antti Kasvio, Timo<br />
Kyntäjä, Ilkka Nousiainen, Marxilaisen sosiologian näkökulmia: Teoreettisesta yhteiskuntatutkimuksesta<br />
(<strong>Helsinki</strong>: Gaudeamus 1974).<br />
94 Jyrki Hilpelä, Me<strong>to</strong>dien valintaan ja teorian muodostukseen vaikuttavista tekijöistä, Sosiologia 1974,<br />
178–185.<br />
95 Teuvo Pohjolainen, Johdatukseksi lukijalle, 9, in Jukka Kultalahti (ed.), Tampereen koulun oppihis<strong>to</strong>ria:<br />
Julkisoikeus yliopis<strong>to</strong>jen oppiaineen 1965–2011 (Tampere: Tampereen yliopis<strong>to</strong> 2011), 9–14; Esko<br />
Riepula, Mikä henki meitä kan<strong>to</strong>i? Miten ns. “Tampereen koulu” syntyi? 23–26, in Kultalahti (ed.) 2011,<br />
id. at 17–32; Jyränki, Antero: 60-luku ja Tampereen oikeustiede, 46–47. In: Kultalahti (ed.) id. at 45–52.<br />
268
arship and the dominant position of the capital city, <strong>Helsinki</strong>, thus becoming a fertile<br />
place for the currents of radical policy of research and alternative methodologies. It was<br />
also a continuation and an expansion of the behaviorist approach that emerged in the<br />
late 1960s, best represented by Kivivuori. This new perspective on law and legal scholarship<br />
had acquired a strong position during the late 1960s, and the early 1970s, as the<br />
critical and alternative scholars of the 1960s were gaining positions at the universities,<br />
the new approach was becoming more widespread.<br />
The change in the basis of jurisprudence at the early 1970s was a general phenomenon.<br />
As we saw, Finnish legal scholarship had been interested in the relationship between<br />
reality and language in the 1960s. The early 1970s, however, was a time in which<br />
Finnish jurisprudence <strong>to</strong>ok many steps <strong>to</strong>wards methodological eclecticism and more<br />
inclusive argumentation. Although it remained largely true <strong>to</strong> the fundamental aspects<br />
of the tradition, changes did occur. Legal sociology was developing and becoming more<br />
general in Scandinavia in the 1960s. Although Finland lagged this trend, legal sociology<br />
made a slow but steady appearance in the early 1970s. Raimo Lahti, whose major contribution<br />
concerned scholarship on criminal law, noted the usefulness of legal sociology<br />
in studying the legal reality and thus helping traditional scholarship and legislation as<br />
well. 96 The Association of Law and Social Sciences was founded in 1970 <strong>to</strong> promote<br />
sociology of law and socially oriented legal research. 97<br />
The interest in sociology of law <strong>fi</strong>tted comfortably with the pursuit of sociological<br />
and empirical jurisprudence and the general interest in examining society. Traditional<br />
scholarship was often considered old-fashioned, and alternative legal scholars of the<br />
1970s wanted <strong>to</strong> expand the basis of their scholarship. According <strong>to</strong> critical legal scholars,<br />
however, sociology of law did not examine the roots of the social functions of law.<br />
Eriksson criticized the recent trend in Scandinavian sociology of law, noting that legal<br />
sociology alone did not suf<strong>fi</strong>ce <strong>to</strong> criticize law. Criticism also had <strong>to</strong> concentrate on the<br />
power structures pertaining between society, the Constitution, and legislation. 98 The<br />
difference between simply analyzing the gap between law in books and law in action<br />
and its causes distinguished critical legal scholarship from the various forms sociological<br />
and alternative jurisprudence. The theoretical reorientation and the critical epistemology<br />
and analysis of the theory of science provided almost limitless possibilities for<br />
analyzing the deep structures of the relationship between law and society.<br />
Besides the theoretical reorientation, legal scholars in general became more interested<br />
in law in action and the relationship between law and politics. They also became<br />
more interested in the nature of their scholarship and its position in society and politics.<br />
For instance, Eero Routamo empirically analyzed the relationship between theory and<br />
96 Raimo Lahti, Oikeussosiologian opetuksesta ja tutkimuksesta pohjoismaissa, Contra 3/1969, 26–29,<br />
42–43; Raimo Lahti, Mitä on oikeussosiologia? in Kriminaaliklubi 1920─1970 (Oulu: Pohjois-<br />
Pohjalaisten kriminaaliklubi 1970), 55–72.<br />
97 Raimo Lahti, Oikeus- ja yhteiskuntatieteellisen yhdistyksen perustaminen ja oikeussosiologian esiinnousu,<br />
Oikeus 2001, 92–93.<br />
98 Lars D. Eriksson, Den konstitutionella lagstiftningen och maktstrukturen, Contra 3/1971, 32–34.<br />
269
practice, 99 and in 1971, Blom continued his empirical analysis of law in a study concerning<br />
the position of the legal profession in society. He concluded that the profession<br />
in general was conservative and identi<strong>fi</strong>ed with the higher social classes. 100 Although<br />
Blom was more a sociologist than a lawyer, the legal profession, or at least a part of it,<br />
was reflecting itself against the society and reconsidering the basis of its scholarship.<br />
The trend in the 1970s was <strong>to</strong> review the theoretical basis of the tradition and contemplate<br />
potential for reform.<br />
The pursuit of the critical self-reflection and reconsideration of legal scholarship<br />
was also apparent in Aarnio’s study on the basis of legal thought from 1971. By now he<br />
was much more willing <strong>to</strong> accept the place of values in legal reasoning and the role of<br />
social science in legal scholarship. 101 His new book represented the openness <strong>to</strong>wards<br />
political elements in law and the comprehensive argumentation of the beginning of the<br />
1970s. Aarnio was not a radical critic of the profession and thus never accepted the critical<br />
claim of the utter irrationality of legal reasoning or the integration of legal scholarship<br />
in<strong>to</strong> social sciences. However, he <strong>to</strong>o had become more aware of the argumentative<br />
and interpretative nature of law and thus stressed them in his new book. Methodological<br />
eclecticism and the openness <strong>to</strong>wards new ideas were obvious trends in the early 1970s<br />
in Finnish legal scholarship.<br />
However, Aarnio never distanced himself completely from traditional scholarship<br />
although he tried <strong>to</strong> reform it. As a legal philosopher, he was interested particularly in<br />
Wittgenstein’s philosophy of language and its applicability <strong>to</strong> legal theory. Thus, he<br />
sought <strong>to</strong> bring legal theory closer <strong>to</strong> legal practice by acknowledging the uncertainty in<br />
legal reasoning. By analyzing the meanings of legal concepts and their practical use<br />
from an intentional perspective, he sought <strong>to</strong> develop a legal theory that could comprehend<br />
legal practice in action. 102 Aarnio’s practical model of judicial decision-making 103<br />
was criticized, however, for presenting judicial decisions as certain, once the intentions<br />
of the judge were recognized. 104 Since Aarnio combined various aspects, it is dif<strong>fi</strong>cult <strong>to</strong><br />
summarize his thinking. In any event, his comprehensive legal theory unders<strong>to</strong>od the<br />
legal system as a systemic whole within social structures. As he did in the 1960s with<br />
his analytical jurisprudence, he still tried <strong>to</strong> explicate the meaning of legal language in<br />
practice, but now his perspective was more open <strong>to</strong> society. The change in his theory<br />
reflected the political debates of the late 1960s and the influence of linguistic philosophy.<br />
The more critical influences were seen in the simple, yet elegant and radical theory<br />
of legal scholarship of Antti Kivivuori. In 1971, he published his “little red book”, a<br />
99 Eero Routamo, Vaasan läänin lakimiesten suhtautumisesta oikeustieteeseen, LM 1971, 667–680.<br />
100 Raimo Blom, Lakimieskunta ja yhteiskunta (Tampere: Tampereen yliopis<strong>to</strong>n sosiologian lai<strong>to</strong>s, N:o<br />
33/1971).<br />
101 Aulis Aarnio, Oikeudellisen ajattelun perusteista (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1971), esp.<br />
at 26–36, 85–89, 183–199.<br />
102 Aulis Aarnio, Oikeustieteen vieraantuminen, LM 1971, 460–471, 475–479.<br />
103 Aarnio 1971, supra n. 101 at 10–22, 75–85, 104–182.<br />
104 Ris<strong>to</strong> Hilpinen, Praktinen päättely ja oikeuskysymyksen ratkaiseminen, LM 1972, 208–217.<br />
270
pamphlet titled Politische Rechtswissenschaft (Political Jurisprudence), in which he<br />
summarized and developed the theory that he had begun a couple of years earlier in his<br />
doc<strong>to</strong>ral dissertation. He argued that since law was human activity intended <strong>to</strong> influence<br />
people’s behavior, the purpose of legal scholarship was <strong>to</strong> study the origins and influences<br />
of law. Investigating the relationship between law and politics was especially important,<br />
because it had <strong>to</strong> be assumed that people pursued material interests. People<br />
were not <strong>to</strong> be regarded as a<strong>to</strong>mistic individuals but as components of social classes. In<br />
addition, in exploring law in its political context, no distinctions between legal and social<br />
science were <strong>to</strong> be made. 105<br />
Political jurisprudence was a combination of the political-behaviorist approach,<br />
social science, and critical thought. In a sense, <strong>to</strong>o, it was Marxist legal scholarship,<br />
although there were no explicit references <strong>to</strong> it. The emphasis on social class and law as<br />
a means of mediating between them were obvious reflections of the Marxist rhe<strong>to</strong>ric of<br />
the early 1970s. Although this short piece did not attract much attention, it reflected<br />
several aspects of the 1970s. And although Kivivuori’s political jurisprudence was not<br />
Marxist per se, it represented the leftist political rhe<strong>to</strong>ric of the critical legal scholarship<br />
of the early 1970s. It also encouraged legal scholarship as part of society and politics,<br />
endorsed the material concept of equality, and a teleological approach <strong>to</strong>wards legislation,<br />
expressed in brusque terms. This theory made Kivivuori one of the most active and<br />
innovative participants in the legal debates of the time.<br />
In the early 1970s, then, critical thought was being elaborated, and Marxism was<br />
also beginning <strong>to</strong> have more influence on Finnish legal scholarship. Eriksson was the<br />
scholar who most persistently developed the Marxist theory of law. In 1972, his purpose<br />
was <strong>to</strong> distance himself from the analysis of language and develop a structuralmaterialistic<br />
analysis of law, in which law, society, and the state were in a reciprocal<br />
structural relationship. He argued that phenomena within the structures developed both<br />
as a consequence of external fac<strong>to</strong>rs and as a consequence of their internal logic, and a<br />
dialectical analysis was needed <strong>to</strong> examine them. Law within the structures followed the<br />
trends of the economy and society and the interests of those who bene<strong>fi</strong>tted, and legal<br />
research had <strong>to</strong> focus on law as part of this complex process. 106 Even though Eriksson<br />
combined various aspects, his article was criticized for its determinism. 107 Economic<br />
fac<strong>to</strong>rs were indeed signi<strong>fi</strong>cant, and many saw that relations between people were far<br />
more complex. In any event, the article was the <strong>fi</strong>rst explicit and detailed analysis of<br />
Marxist theory in legal scholarship. Eriksson was also a pioneer in the Scandinavian<br />
context, for, as we saw in the previous chapter, Scandinavian Marxist legal scholarship<br />
was also taking its <strong>fi</strong>rst steps at the time and Eriksson’s article was a source of inspiration,<br />
and criticism, for Scandinavian legal scholars.<br />
105 Antti Kivivuori, Politische Rechtswissenschaft (<strong>Helsinki</strong> 1971).<br />
106 Lars D. Eriksson, Rakenneselitykset marxilaisessa oikeusteoriassa, LM 1972, 151–161.<br />
107 Jaakko Blomberg, Dialektinen päättely ja rakenneanalyysi, LM 1972, 163–165; Reijo Wilenius, Marxilaisesta<br />
ja hermeneuttisesta oikeusteoriasta, LM 1972, 169–170.<br />
271
Marxist elements became relatively apparent in the efforts <strong>to</strong> develop alternative<br />
legal theories in the 1970s. Materialism, values, and ideologies became important concerns<br />
for the critical scholars who examined their position in law and legal scholarship<br />
in various ways. Tolonen emphasized the study of the his<strong>to</strong>rical development of legal<br />
phenomena, maintaining that materialism was an important aspect, 108 but he was criticized<br />
for failing <strong>to</strong> distinguish between social theory and law. 109 Eero Backman, on the<br />
other hand, conducted a detailed and theoretical criticism of analytical jurisprudence,<br />
arguing that analytical jurisprudence missed the most essential aspect of law; namely,<br />
that language was socially constructed and was thus manifested in social structures. He<br />
thought that deciphering the linguistic quasi-problems was simply an aspect of scholarship,<br />
but it was most important <strong>to</strong> explore the social structures of law because law and<br />
legal scholarship were political <strong>to</strong> a certain extent and the intentions of the legal ac<strong>to</strong>rs<br />
often emanated from those structures. 110 As Marxist thought began <strong>to</strong> have more influence<br />
in jurisprudence, legal scholars began <strong>to</strong> scrutinize the his<strong>to</strong>rical and structural<br />
aspects of law. This was a way <strong>to</strong> af<strong>fi</strong>rm the importance of the system and the structures<br />
within which the scholars operated and which had unconscious effects on their work.<br />
There was an urge <strong>to</strong> expand the basis of legal scholarship in<strong>to</strong> society and politics.<br />
The need <strong>to</strong> have more alternatives for traditional legal scholarship was manifested<br />
in the establishment of the new law journal Oikeus (the Law), published by the Association<br />
of Democratic Lawyers and the Association of Law and Social Sciences in 1972. In<br />
the <strong>fi</strong>rst issue, Aarnio explained the new journal had been founded because there was a<br />
general need for critical and open-minded legal research that was free from prejudices.<br />
111 There were many young, and even older, legal scholars in the early 1970s who<br />
were frustrated with the Finnish legal culture, which they found conservative and oppressive.<br />
As Aarnio wrote, since the traditional scholarship was <strong>to</strong>o theoretical and<br />
fragmented, there was a need for more organized, practical and realistic legal scholarship.<br />
112 In the <strong>fi</strong>rst issues of the journal, scholars dealt with contemporary legal and political<br />
problems, such as those of legal scholarship, 113 legal education reform, 114 criminal<br />
law reform, 115 and recent court practice. 116 The journal thus participated in contemporary<br />
debates on scholarship and politics. It also had a dif<strong>fi</strong>cult beginning, because the<br />
Association of Finnish Lawyers refused <strong>to</strong> give its address <strong>fi</strong>le <strong>to</strong> the edi<strong>to</strong>rial board of<br />
108 Juha Tolonen, Oikeusjärjestyksen käsitteestä, LM 1972, 176–188.<br />
109 Juha Manninen, Oikeusjärjestyksen käsittämiseen liittyvistä ongelmista, LM 1972, 200.<br />
110 Eero Backman, Mietteitä analyyttisen oikeusteorian johdosta, II Oikeustiede ─ Jurisprudentia 315,<br />
323–324, 327–340 (1972).<br />
111 Aulis Aarnio, Oikeus-lehdestä, Oikeus 1/1972, 3–4.<br />
112 Aulis Aarnio, Tieteen vapaus ja kokonaisvaltainen tutkimuspolitiikka, Oikeus 1/1972, 11–13.<br />
113 Aarnio 1972, supra n. 112; Esko Riepula, Oikeudellisen tutkimuksen näköaloja, Oikeus 2/1973, 3–8.<br />
114 Olli Mäenpää, Mitä on opiskella oikeustiedettä, Oikeus 1/1972, 4–8; Olli Mäenpää, Opin<strong>to</strong>jen uudistamiskomitea<br />
on puhunut, Oikeus 3/1973, 6–9; Niklas Bruun, Vetenskapsmän eller teknokrater? Oikeus<br />
3/1973, 10–13; Kauko Wikström, Mietteitä opin<strong>to</strong>jen uudistamisesta, Oikeus 4/1973, 41–44.<br />
115 Kauko Aromaa, Rikosoikeuskomitea ja uudistukset, Oikeus 1/1972, 44–46; Antti Kivivuori, Kriminaalipolitiikka?<br />
Kontrollipolitiikka? Oikeus 1/1972, 41–43.<br />
116 Olavi Sulkunen, Mamian juttu ─ työtuomioistuin 63/1971, Oikeus 1/1972, 53–58; Olavi Sulkunen,<br />
Chix-puvun juttu ─ Vaasan hovioikeus 13.6.1972. I/116, Oikeus 1/1972, 58–59.<br />
272
Oikeus for marketing purposes. 117 The traditional profession wanted <strong>to</strong> maintain the<br />
neutrality of the profession and disliked the political <strong>to</strong>ne of the alternative currents,<br />
which marked the difference between the tradition and the alternative thought. In any<br />
event, the alternative legal scholarship was expanding at the beginning of the 1970s.<br />
Now there was an association for lawyers and legal scholars who wanted <strong>to</strong> promote<br />
leftist ideology and politics, and there was a law journal for scholars who endorsed alternative<br />
and critical scholarship.<br />
Alternative legal scholarship entered a vigorous phase when legal scholars began<br />
<strong>to</strong> question the basis of traditional scholarship <strong>to</strong> an increasing extent and more and<br />
more new theories and methodologies emerged. In addition <strong>to</strong> Oikeus, the publication<br />
series Forum ─ Oikeustiede (Forum ─ Jurisprudence) was initiated in 1971, which became<br />
a channel for alternative legal scholarship. 118 As the 1970s progressed, the debates<br />
on the purposes and methods of legal scholarship expanded and new scholars participated<br />
in them. The aggressive edge of the late 1960s was <strong>to</strong>ned down, but the criticism<br />
became more theoretical and, moreover, the critical scholars began <strong>to</strong> debate more with<br />
each other.<br />
Alternative theories were also elaborated further and applied in research. One of<br />
the major new trends of the 1970s was Esko Riepula’s sociological jurisprudence. He<br />
argued that legal scholarship should apply more empirical data and methods of social<br />
sciences in its analysis. 119 Traditional legal scholarship, he thought, was scienti<strong>fi</strong>cally<br />
questionable and socially insigni<strong>fi</strong>cant. The way <strong>to</strong> rescue legal scholarship from the<br />
crisis was <strong>to</strong> expand its <strong>fi</strong>eld of research <strong>to</strong> encompass social relations. 120 Riepula was<br />
taking the debate on legal scholarship in<strong>to</strong> the question of whether legal scholarship<br />
could be considered as science. He pointed out that the debate of the late 1960s and early<br />
1970s had caused a crisis in jurisprudence, which was <strong>to</strong> be solved by extending its<br />
methodological basis <strong>to</strong> include the social and behavioral sciences. The early debates<br />
had not explicitly dealt with the problem of whether jurisprudence was “science”, 121 but<br />
now it was coming <strong>to</strong> the fore. 122 The problem concerned the subject of research and the<br />
methods of acquiring data and analyzing what had been observed.<br />
117 Aulis Aarnio, Lainvalmistelunäkymiä, Oikeus 2/1972, 4.<br />
118 Eero Backman, Oikeustiede ei välttämättä ole oikeis<strong>to</strong>tiedettä: Forum-oikeustiede-sarjan esittelyä,<br />
Sosiologia 1973, 91. In the early 1970s, the edi<strong>to</strong>rial board of the new series consisted of Aulis Aarnio,<br />
Lars D. Eriksson, Olavi Heinonen, Antero Jyränki, Heikki Karapuu, Antti Kivivuori, and Matti Savolainen,<br />
most of whom were either critical or alternative scholars at the academy or otherwise represented<br />
critical thought.<br />
119 Riepula 1973, supra n. 113 at 5–8.<br />
120 Esko Riepula, Eduskunnan perustuslakivaliokunta perustuslakien tulkitsijana: Valtiosääntötutkimus<br />
eduskunnan perustuslakivaliokunnasta perustuslakikontrollia ja perustuslakien tulkintaa harjoittavana<br />
<strong>to</strong>imielimenä vv:n 1907─1972 valtiopäiviltä (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1973), 58–59.<br />
121 Aarnio had mistakenly criticized Kivivuori for bringing up the question because, he thought, there was<br />
no point in debating the scienti<strong>fi</strong>c nature of legal scholarship since the “criteria of science” were conventional.<br />
(Aarnio 1969, supra n. 52 at 373–374.) Kivivuori responded that he was not talking about whether<br />
legal scholarship was “scienti<strong>fi</strong>c” but whether it was meaningful. (Kivivuori 1969, supra n. 53 at 407.)<br />
122 Aulis Aarnio, Oikeustiede ja “oikeustiede”, Oikeus 2/1973, 9–13.<br />
273
The idea behind the alternative methodologies was that they would provide more<br />
accurate information about law. In his doc<strong>to</strong>ral dissertation, Riepula applied his methods<br />
while examining the practice of the constitutional committee of the parliament in<br />
interpreting the Constitution. He related the practice <strong>to</strong> the political context and <strong>to</strong> the<br />
political composition of the committee, concluding that its interpretation did follow the<br />
political biases and interests of its members <strong>to</strong> a certain extent. 123 The treatise was an<br />
obvious expression of combining social science with legal scholarship. It was an empirical,<br />
realistic study on constitutional interpretation, which was not seen simply as a legal<br />
activity, but <strong>fi</strong>rst and foremost as a political activity. It was a continuation of the political-behaviorist<br />
jurisprudence of Kivivuori and an application of American political jurisprudence<br />
in the Finnish context as well. The treatise was thus also an expression of<br />
the influence of American political jurisprudence and judicial realism on Finnish legal<br />
scholarship. Since there was no judicial review in Finland, the interpretation of the Constitution<br />
was the business of the constitutional committee of the parliament, and thus a<br />
realist study on the practice of the committee was a version of Finnish realism and political<br />
jurisprudence.<br />
Although no realist legal theory was adopted in Finland, the legal scholars generally<br />
<strong>to</strong>ok steps in that direction during the 1960s and 1970s. Until the 1960s, the dominant<br />
opinion was that there was only one correct solution <strong>to</strong> a legal case, and the purpose of<br />
the courts was <strong>to</strong> reach that decision. 124 The doctrine of single correct solution was criticized<br />
in the 1960s, 125 and by the 1970s, more legal scholars acknowledged that there<br />
was room for discretion and interpretation in legal decision-making <strong>to</strong> the extent that the<br />
idea of one right decision seemed untenable. 126 Thus, by the mid-1970s, the single correct<br />
solution doctrine was widely discredited. 127 Finnish legal scholars abandoned the<br />
idea of legal reasoning as simple logic, but their general opinion should be depicted<br />
123 Riepula 1973, supra n. 120 at 119–129, 136–146, 172–180, 200–218, 224–231, 245–274, 280, 285–<br />
286, 301–303.<br />
124 See, e.g., Veli Merikoski, Vapaa harkinta hallinnossa (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1958),<br />
46–47.<br />
125 Kauko Sipponen, Yhden ainoan oikean tai tarkoituksenmukaisen ratkaisun periaatteista, LM 1965<br />
197–212; Makkonen 1965, supra n. 30; Eriksson 1966, supra n. 40.<br />
126 Aimo O. Aal<strong>to</strong>nen, Havain<strong>to</strong>ja lainkäytöstä, LM 1971, 578; Aarnio 1971, supra n. 101 at 70–75; Matti<br />
L. Aho, Tuomioistuimen harkintavalta ja tuomarin sosiaalinen rooli, DL 1969, 465–467; Backman 1970,<br />
supra n. 82 at 1037–1038; Jokela 1970, supra n. 68 at 849–850; Paavo Kastari, Tuomioistuinten riippumat<strong>to</strong>muus<br />
ja demokraattisuus, LM 1971, 421; Hannu Tapani Klami, Johdatus oikeustieteelliseen analyysiin<br />
(Turku: Turun kauppakorkeakoulun julkaisuja 1973), 4, 58–59; Makkonen 1970, supra n. 83 at 1057–<br />
1058, 1063–1068; Kari S. Tikka, Veron minimoinnista: Tutkimus tulo- tai omaisuusverosta vapautumisen<br />
tarkoituksessa tehdyistä <strong>to</strong>imista lainsoveltamisongelmana erityisesti silmällä pitäen verotuslain 56 §:ää<br />
(<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1972), 54–80. Finnish legal scholars have long been aware of<br />
the discretion in legal reasoning and the personal input of the judge in adjudication. (See Susanna Lindroos-Hovinheimo,<br />
Miten lakia tulkitaan? ─ Erään oikeusteoreettisen kysymyksen suomalaista his<strong>to</strong>riaa,<br />
LM 2011, 278–298.) The fact that extra-legal fac<strong>to</strong>rs can have an influence on judicial decision-making<br />
was thus not an invention of the 1960s but it was more important than it had been. Theories hardly ever<br />
come out of nothing, but the fact that similar arguments have been advanced before does not mean that<br />
they have been dominant or even widespread at that time.<br />
127 Max Oker-Blom, En enda riktig lösning trots allt? ─ Dworkin mot <strong>fi</strong>nländsk bakgrund, JFT 1978,<br />
252–253.<br />
274
ather as balanced realism than realism proper, because only a very few spoke for complete<br />
indeterminacy or structurally biased judicial decision-making. The majority emphasized<br />
that there were reasonable limits for legal discretion, and that legal education<br />
helped the legal decision-maker <strong>to</strong> stay within a legally sound interpretation. The situation<br />
was somewhat similar in Finland <strong>to</strong> that in the United States and Scandinavia in<br />
that scholars admitted the margin of error in legal reasoning, but disagreed as <strong>to</strong> its nature<br />
and extent. The critical scholars, of course, went further and sought <strong>to</strong> reveal the<br />
irrationality of legal reasoning. In this regard, then, the fundamental characteristic of the<br />
critical thought was clear.<br />
Criticism of the pursuit of rationality became obvious in the critique of legal concepts.<br />
Tolonen argued that even analytical jurisprudence <strong>to</strong>ok legal concepts as given<br />
and did not analyze their his<strong>to</strong>rical origins or their functions in modern society, even<br />
though these aspects were essential for legal analysis. 128 Besides his<strong>to</strong>ry, he also<br />
stressed the signi<strong>fi</strong>cance of theory in sorting out the meaning of the legal concepts. 129<br />
Marxist legal scholars also stressed the importance of his<strong>to</strong>ry for understanding the actual<br />
purpose of the legal concepts and their contemporary relevance. 130 Eriksson thus<br />
criticized the arti<strong>fi</strong>cial distinction between public and private law, arguing that purely<br />
legal perception of concepts such as freedom of contract and property rights blurred the<br />
fact that these concepts incorporated aspects of social power and enabled the creation of<br />
new law through interpretation. 131 Even if analytical jurisprudence explained the meaning<br />
of concepts in actual cases, it was not realistic according <strong>to</strong> the critical scholars because<br />
they wanted <strong>to</strong> study the reality behind the concepts as well. His<strong>to</strong>rical and social<br />
analysis was regarded as important, and the more the scholar endorsed Marxist theory,<br />
the more he emphasized the signi<strong>fi</strong>cance of the social power structures underlying law.<br />
Marxism was becoming a common framework for critical legal scholarship in the<br />
1970s, but the Marxist scholars were not unanimous about every aspect. For instance,<br />
both Eriksson and Helge Rontu, a slightly older lawyer who had been active in legal<br />
politics, studied corporate liability from a Marxist perspective but drew differing conclusions.<br />
Rontu supported corporate liability from a social point of view, 132 but Eriksson<br />
disagreed, arguing that it hid personal liability behind the corporate veil and enabled the<br />
corporations <strong>to</strong> reallocate the damage <strong>to</strong> the consumer following the punishment. Therefore<br />
it was just another way <strong>to</strong> protect capital. 133 The former argument was a direct response<br />
<strong>to</strong> the problems of capitalism whereas the latter sought <strong>to</strong> analyze the effects of<br />
128 Juha Tolonen, Siviilioikeuden yleisten oppien kriisi, Oikeus 1/1973, 12–15; Juha Tolonen, Om begreppet<br />
rättshandling inom det traditionella rättssystemets ram, JT 1973, 359–360.<br />
129 Juha Tolonen, Teoreettisesta tutkimuksesta ja sen merkityksestä oikeustieteessä, Oikeus 4/1974, 37–<br />
40.<br />
130 Helge Rontu, Oikeus luon<strong>to</strong>on, Oikeus 1/1973, 21–24.<br />
131 Lars D. Eriksson, Kritik av den rena civilrätten, Oikeus 3/1974, 23–25.<br />
132 Helge Rontu, Yhteisörangaistukset ja liberaali kriminologia, Oikeus 2/1973, 25–26. Rontu was born in<br />
1924 and was an active leftist jurist in the 1950s, before the rise of critical legal scholarship in the 1960s.<br />
In the 1960s and 1970s, he participated in the critical debates but was involved more in politics than in<br />
academic scholarship.<br />
133 Lars D. Eriksson, Bör samfund straffas? Oikeus 2/1973, 27–32.<br />
275
law further. Critical legal scholarship was interested in the social functions of legal concepts<br />
and directed analysis <strong>to</strong> them, but the argument among the scholars differed in<br />
detail.<br />
The reconsideration of the relationship between consciousness and social and legal<br />
awareness was a consequence of the rise of Marxism, as well as of critical epistemology,<br />
the theory of science, and the new ways of comprehending social reality. All these<br />
were clear in the theory that Juha Tolonen elaborated in his doc<strong>to</strong>ral thesis, in which he<br />
analyzed the relationship between empirical observations and theories and concepts,<br />
because, he argued, the former needed the latter in order <strong>to</strong> be comprehensible, whereas<br />
the latter needed the former in order <strong>to</strong> have relevance. He argued that since society<br />
created criteria against which the appropriateness of legal institutions was measured,<br />
scholarship needed a his<strong>to</strong>rical conception of legal phenomena in order <strong>to</strong> understand<br />
their true essence and functions in society. 134 The most important aspect was the elaboration<br />
of a new legal theory according <strong>to</strong> critical epistemology. The implications of the<br />
book were the pursuit of a critical understanding of reality and legal institutions. There<br />
were obvious Marxist traits without however any speci<strong>fi</strong>c emphasis.<br />
The rising interest in Marxism and the theoretical sophistication of critical scholarship<br />
opened up new potential for criticism. As in the United States and Scandinavia, the<br />
critical scholars began <strong>to</strong> debate their theories among themselves. As we saw in the previous<br />
chapter, Scandinavian Marxist legal scholars debated the basis of Marxism in the<br />
1970s when the scholarship began <strong>to</strong> expand. This happened in Finland as well. Eriksson<br />
criticized Tolonen’s theory for its structuralism and idealism and the lack of critical<br />
potential, pointing out that the analysis was simply technical if the development of law<br />
was not seen in the context of the social and economic power structures. 135 As compared<br />
<strong>to</strong> Scandinavia and Western Europe, Finnish legal scholars were more concerned<br />
with Soviet legal theory and Marxism-Leninism. Thus, Marxist and Socialist legal theory<br />
were often presented in a good light, emphasizing their scienti<strong>fi</strong>c aspects. 136 The<br />
Finnish political left in general was relatively accommodating <strong>to</strong>wards socialism. Neither<br />
did the critical scholars hesitate in viewing Soviet scholarship and socialist society<br />
positively. Socialism was part of the critical rhe<strong>to</strong>ric and a powerful counter-argument<br />
in Finnish society, and thus it was applied in scholarly discourse as well.<br />
The use of Marxism opened up many opportunities but also caused controversies<br />
between scholars. Olli Mäenpää related Marxist scholarship <strong>to</strong> the question of what was<br />
considered as legal science. He argued that since the relationship between law, society,<br />
and the economic basis of society determined the content of law in the last resort, legal<br />
scholarship had <strong>to</strong> concentrate on these in order <strong>to</strong> be science. Consideration was also <strong>to</strong><br />
134 Juha Pentti Tolonen, Der allgemeine Erklärungshintergrund der wirtschaftlichen Ordnung und seine<br />
Anwendung auf das Aktiengesellschaftsrecht: Rechtsvergleichende Untersuchung (<strong>Helsinki</strong>: Suomalainen<br />
tiedeakatemia 1974), esp. at 12–16, 23–27, 30–31, 34–35, 43–44, 92–106.<br />
135 Lars D. Eriksson, Ekonomisk teori och aktiebolagslagstiftningen, Sosiologia 1975, 157–160.<br />
136 Antero Ignatius, Neuvos<strong>to</strong>-oikeustiede ─ Edistyksellisten lakimiesten ensyklopedia, Oikeus 3/1973,<br />
29–38; Timo Lahelma, Pari sanaa sosialistisesta oikeuskäsityksestä, Oikeus 1/1972, 73–75; Raimo Blom,<br />
Valtion ja oikeuden tieteellinen käsittäminen, Oikeus 4/1974, 40–46.<br />
276
e given <strong>to</strong> the division between the form and substance of law, as well as <strong>to</strong> the notion<br />
of law as an ideology and superstructure. 137 Mäenpää was criticized for not being able<br />
<strong>to</strong> produce any valid theory of scienti<strong>fi</strong>c legal scholarship or veri<strong>fi</strong>cation of interpretation.<br />
138 Furthermore, Antero Ignatius pointed out that Mäenpää’s analysis was seriously<br />
flawed. He argued that Mäenpää had neglected dialectical materialism in his theory and<br />
was ambiguous in his notions on the relationship between theory and practice. 139 Elaborating<br />
a solid critical theory of law that would be both practical and scienti<strong>fi</strong>c was well<br />
intent but dif<strong>fi</strong>cult in practice. Young Marxists were eager <strong>to</strong> develop new theories that<br />
would respond both <strong>to</strong> the contemporary need <strong>to</strong> reform legal scholarship and <strong>to</strong> the<br />
critical thought of the time, but the task was hard. Nevertheless, Marxism interested<br />
critical legal scholars because of its critical potentiality especially in a Western, liberalbourgeois<br />
state that was based on a capitalist economy.<br />
Besides the critical scholarship, Finnish legal scholarship was in a dynamic state in<br />
the 1970s. Thus, <strong>to</strong> illuminate the context of the critical scholarship, it is important <strong>to</strong><br />
take a look at the change that surrounded it. Legal scholars developed many theories<br />
that could overcome the problems of traditional positivism but which would not succumb<br />
<strong>to</strong> critical thought. The emphasis on values and policies became more frequent<br />
although traditional scholars warned about the dangers of the politicization of scholarship.<br />
140 The creation of the new approaches was nonetheless widespread. One of the<br />
new currents was a system theory of law which, as Kauko Sipponen had already argued<br />
in 1970, could help <strong>to</strong> understand law in its social context and its relations with social<br />
phenomena. 141 Alternative legal scholars saw the system theory as a valuable alternative<br />
<strong>to</strong> traditional scholarship because it could open law up <strong>to</strong> society in various practical<br />
matters, such as judicial decision-making and legislation. 142 Non-legal scholars also<br />
participated in developing the theory by arguing that system theory could help <strong>to</strong> analyze<br />
judicial decision-making. 143 System theory was a method of locating law in context<br />
and placing values in legal analysis without however making any radical arguments<br />
about the irrationality of law. It was also an expression of applying non-traditional<br />
methods in legal scholarship and thus widening its theoretical basis.<br />
The social orientation of alternative legal scholarship was also of practical use.<br />
Both legal scholarship and law-making were opening up more <strong>to</strong>ward society. The idea<br />
of directing social and economic development through active regulation originated in<br />
137 Olli Mäenpää, Oikeustieteen tutkimuskohteesta, Oikeus 4/1974, 30–34.<br />
138 Markku Helin, Edellisen johdosta, Oikeus 4/1974, 35–36.<br />
139 Antero Ignatius, Kommentaari oikeustieteen kohteeseen, Oikeus 1/1975, 9–15. Mäenpää replied only<br />
partially <strong>to</strong> the criticism, arguing that legal scholarship can and should pursue the truth, since, according<br />
<strong>to</strong> Helin it was impossible, and according <strong>to</strong> Ignatius it was meaningless. (Olli Mäenpää, Kritiikin johdosta,<br />
Oikeus 1/1975, 16–17.)<br />
140 Simo Zitting, Juridiikka ja politiikka, LM 1973, 84–90.<br />
141 Kauko Sipponen, Oikeuslai<strong>to</strong>s systeemiteorian kannalta tarkasteltuna, LM 1970, 619–628.<br />
142 Rauno Halttunen, Markku Helin, Heikki Mattila, Matti Mikkola, Ahti Saarenpää, Oikeustiede ja systeemiteoria,<br />
LM 1972, 115–133.<br />
143 Seppo Laakso, Systeemimalli oikeudellisen ratkaisu- ja tulkinta<strong>to</strong>iminnan kuvaajana, LM 1973, 661–<br />
691; Heikki Heiskanen, Oikeusoppia systeemiteoreettisesti tarkasteltuna, IV Oikeustiede ─ Jurisprudentia<br />
185–275 (1973).<br />
277
the early 1960s. 144 The social policy of the 1970s followed the optimism over social<br />
planning, 145 and social data and values had ever more influence in legislation. 146 A reflection<br />
of the social planning of the 1970s, as well as of the rising interest in sociology<br />
of law and social sciences in legal research, was the foundation of the National Research<br />
Institute of Legal Policy, OPTULA (Oikeuspoliittinen tutkimuslai<strong>to</strong>s) in 1974,<br />
which replaced the Institute of Criminology which had been established in 1963. 147 Its<br />
foundation encouraged socially-oriented legal scholarship by providing work for legal<br />
scholars and markets for research. The readiness <strong>to</strong> reform both law and legal scholarship<br />
was widespread, the critical and the leftist thinking being simply its most obvious<br />
articulations.<br />
In addition <strong>to</strong> the increased interest in empirical legal research, legal scholars were<br />
also concerned about the theoretical aspects of jurisprudence. Theoretical jurisprudence<br />
was modi<strong>fi</strong>ed <strong>to</strong> <strong>fi</strong>t the new needs of society and the profession. Aarnio participated<br />
actively in the critical debates and elaborated new ideas on legal theory and scholarship.<br />
He thought that it was important <strong>to</strong> reconsider the premises of legal scholarship because<br />
<strong>to</strong> a certain extent they depended on the social circumstances. 148 He argued that values<br />
did have a role, but not a decisive one in legal scholarship, 149 which thus always had an<br />
element of politics but was never entirely political. 150 In a study published in 1975, he<br />
summarized the concepts he had developed during the 1970s, pursuing a thorough understanding<br />
of law in its social and scienti<strong>fi</strong>c context, an understanding legal theory. 151<br />
His point of departure was the analytical tradition of Finnish jurisprudence, which he<br />
modi<strong>fi</strong>ed with Scandinavian realism, linguistic philosophy and deontic logic, and hermeneutics,<br />
and which he sought <strong>to</strong> adopt in<strong>to</strong> the contemporaneous critical debates. He<br />
also relied heavily on the literature of Ot<strong>to</strong> Brusiin, a realist Finnish legal philosopher<br />
whose ideas were widely discredited in the 1930s when they were <strong>fi</strong>rst published. Aarnio<br />
sought <strong>to</strong> demonstrate how legal decision-making and scholarship were simultaneously<br />
dependent on both social structures and the inner structures of the legal system.<br />
Not being a critical scholar, he debunked the thoroughgoing formalism as well as the<br />
notion of the complete irrationality of law, thus balancing between traditional and critical<br />
scholarship.<br />
144 Pekka Kuusi, 60-luvun sosiaalipolitiikka (Porvoo: Werner Söderström Osakeyhtiö 1963) (1961).<br />
145 Kekkonen 1998, supra n. 6 at 111–112.<br />
146 Markku Tyynilä, Lainvalmistelukunnan ja lainvalmisteluosas<strong>to</strong>n vaiheita 1884─1984, 76–77, in Antti<br />
Kivivuori & Leena Vettenranta (eds.), Lainvalmistelun his<strong>to</strong>riaa: Lainvalmistelukunnan ja oikeusministeriön<br />
lainvalmisteluosas<strong>to</strong>n vaiheita 1884–1984 (<strong>Helsinki</strong> 1984), 9–90. Kivivuori worked as the chief of<br />
the legislative department of the ministry of justice from 1971 onwards, and brought the more social and<br />
critical <strong>to</strong>ne in<strong>to</strong> law-making.<br />
147 For a critical review of the foundation of the institute, see Markku Tyynilä, Syntyneitä: Oikeuspoliittinen<br />
tutkimuslai<strong>to</strong>s 1.3.1974, Oikeus 1/1974, 37–42.<br />
148 Aulis Aarnio, Suomalaisen oikeusteorian kehityspiirteitä, LM 1973, 339–340, 370–373.<br />
149 Aulis Aarnio, On the Role Played by Social Values in Jurisprudence, JFT 1975, 34–50.<br />
150 Aulis Aarnio, Vad är rättspolitisk forskning? JFT 1975, 122–140.<br />
151 Aulis Aarnio, Laki, teko ja tavoite: Tutkimus tavoitteellisuudesta lain tulkinnassa ja sen soveltamisessa.<br />
(<strong>Helsinki</strong>: Lainopillisen ylioppilastiedekunnan kustannus<strong>to</strong>imikunta 1975).<br />
278
Recent trends in jurisprudence and philosophy were apparent in Aarnio’s combination<br />
of contradic<strong>to</strong>ry perspectives. Although he acknowledged that judicial decisionmaking<br />
could be arbitrary, he suggested that the theory on judicial decision-making had<br />
<strong>to</strong> be based on rationality. 152 He argued that Finnish legal scholarship was based on a<br />
positivist paradigm and doctrinal analysis of law, but he also recognized the usefulness<br />
of other methods and wanted <strong>to</strong> scrutinize the premises of positivism critically without<br />
however abandoning the tradition. 153 He also argued that teleological theory, sociological<br />
jurisprudence, and Marxist legal scholarship served important interests but could not<br />
form the basis of legal scholarship alone. 154<br />
Aarnio was distancing himself from the subjectivity of legal reasoning he had<br />
stressed before. Now he was elaborating a systematic theory of law in which the goaloriented<br />
reasoning and the obscurities of law would be unders<strong>to</strong>od in the context of the<br />
legal system. The pursuit of synthesis and objectivity did not, however, please critical<br />
scholars. Tolonen criticized Aarnio for missing the structural connections of law. In<br />
addition, he argued that there could have been no objective systematization because<br />
concepts were always one-sided, and hence ideological, descriptions of reality. 155 Marxist<br />
scholars criticized Aarnio for his idealistic subjectivism and neglecting the social<br />
construction of law and reality. Backman and Mäenpää argued that Aarnio had missed<br />
the way society constituted the knowledge of the individual. This idealist conception of<br />
reality ignored the fact that human consciousness was subordinated <strong>to</strong> objective reality.<br />
Marxist legal scholarship was practical precisely because it considered law as a social<br />
construction. 156 The fundamental difference between Marxist scholarship and what was<br />
labeled as traditional was that Marxist legal scholarship stressed the importance of dialectical<br />
analysis of the relationship between society and law, whereas traditional legal<br />
thought, or bourgeois as the Marxists often called it, sought <strong>to</strong> mask that relationship. 157<br />
Apart from the sociological aspect that marked the critical enterprise, the criticism<br />
of values and ideologies was another fundamental element of critical scholarship. Critical<br />
scholars argued that society created boundaries for individual consciousness and<br />
imposed some values on them while excluding others. Thus, they thought that legal theory<br />
that stressed the importance of subjective values but neglected their social origins<br />
missed an essential aspect of legal analysis. The question was not simply whether values<br />
influenced law, but rather what values, how they were constructed, and why it was<br />
just these particular values that mattered. Critical scholars unders<strong>to</strong>od law as a positive<br />
system, but they were dissatis<strong>fi</strong>ed with the understanding of law at face value, without<br />
considering the motives behind its goals and values. They thought that the traditional<br />
pursuit of rationalizing of what they thought was ambiguity was a denial of the ideology<br />
underpinning law, and therefore contributed <strong>to</strong> the mysti<strong>fi</strong>cation and rei<strong>fi</strong>cation of law.<br />
152 Id. at 120.<br />
153 Id. at 33–36, 208–377.<br />
154 Id. at 247–261, 289–290.<br />
155 Juha Tolonen, Laki, teko ja tavoite [book review], LM 1976, 105, 107.<br />
156 Eero Backman & Olli Mäenpää, Todellisuus vai tavoite? Oikeus 1/1976, 31–39.<br />
157 Ignatius 1975, supra n. 139 at 10, 15.<br />
279
In the mid-1970s, critical legal scholarship was acquiring new dimensions, and its<br />
basis was being explained. As in other disciplines, Marxism was becoming a worthy<br />
method of legal research, not just a <strong>to</strong>ol of criticism. The origins and functions of values<br />
within law were precisely relevant for critical legal scholarship. Critical scholars clari<strong>fi</strong>ed<br />
the meaning of Marxism in jurisprudence 158 <strong>to</strong> show that it was not simply an ideology.<br />
Eriksson was also elaborating his thinking further by building his premises on a<br />
more nuanced philosophical basis. For him the relevant question was not what was or<br />
what ought <strong>to</strong> have been, but rather what the essence of the legal phenomena was. The<br />
essential point was thus <strong>to</strong> construct the dynamic of the inner logic of law in its his<strong>to</strong>rical<br />
and social context. 159 According <strong>to</strong> Eriksson, law turned material relations in<strong>to</strong> legal<br />
concepts and hence in<strong>to</strong> an ideology, and the purpose of the critical legal scholarship<br />
was <strong>to</strong> unmask this ideology, 160 because only by realizing the social connections of law<br />
and its inner logic could people be emancipated and create real alternatives <strong>to</strong> the existing<br />
law. 161 The focus was moving from values <strong>to</strong> their origins and purposes. Critical<br />
scholars considered even legal realism as “unrealistic” because it did not pay due attention<br />
<strong>to</strong> the fac<strong>to</strong>rs underlying the values in law. Critical scholarship thus adopted a perspective<br />
on law that diverged from the traditional one completely.<br />
The philosophical addition <strong>to</strong> Marxism turned the analysis <strong>to</strong>wards the essence of<br />
society. Critical legal scholarship went beyond the efforts of empirical and sociological<br />
jurisprudence, since they were simply concerned with the law in action, not about its<br />
ultimate motives. Law was a human activity, but it was it for a purpose. According <strong>to</strong><br />
Eriksson, the purpose of law was <strong>to</strong> promote the interests of the ruling social class,<br />
namely the economically powerful class. Critical legal scholarship therefore explicated<br />
the structural dependencies and contradictions within law, unmasked and demysti<strong>fi</strong>ed its<br />
ideological elements, and provided alternatives. 162 The basis of critical legal scholarship<br />
was still the same but, as Eriksson became more familiar with Marxist literature, he was<br />
able <strong>to</strong> enhance and hone his arguments. Finnish Marxist legal scholarship of the mid-<br />
1970s was no longer simply an ideology, but was becoming more of a theory, or rather<br />
a set of theories.<br />
The discussion of the methods and purposes of legal scholarship continued, and<br />
legal scholars became interested in the foundation of their scholarship. 163 Marxism, on<br />
the other hand, became a method of critical or realist legal scholarship. Tolonen continued<br />
elaborating his theory by stating that Marxism did not replace traditional scholarship<br />
but complemented it by correcting its flaws and inadequacies. Dialectical materialism<br />
was a method of analyzing the gap between law in books and law in action as an<br />
158 Juha Tolonen, Om förhållandet mellan rättsordningen och det ekonomiska systemet, JFT 1976, 100–<br />
107.<br />
159 Lars D. Eriksson, Hegel och rätts<strong>fi</strong>loso<strong>fi</strong>ns förnyelse, JFT 1975, 70–76.<br />
160 Lars D. Eriksson, Kritisk rättsteori såsom ideologikritik, JFT 1975, 326–333.<br />
161 Eriksson 1975, supra n. 159 at 77.<br />
162 Lars D. Eriksson, Om rättens samhälleliga förankring, JFT 1976, 86–94.<br />
163 Aulis Aarnio, Teoreettisen tutkimuksen merkityksestä oikeustieteelle, LM 1976, 547–581; Juha Pöyhönen,<br />
Om forskning om rättsvetenskap, JFT 1976, 456–483.<br />
280
ongoing process. Thus critical scholarship avoided a basic flaw of traditional scholarship,<br />
in which conceptions of the scholar masked the subject and excluded the possibility<br />
of alternative perspectives. 164 Blom also combined the aspects of theoretical and<br />
empirical research by arguing that scholarship aimed <strong>to</strong> renew reality as it was unders<strong>to</strong>od<br />
and conceptualized. He thought that research had <strong>to</strong> take the his<strong>to</strong>rical and social<br />
development of concepts in<strong>to</strong> account and analyze their relationship with empirical reality.<br />
165 By the mid-1970s, critical legal scholarship had established its position as a<br />
method of analyzing theoretical and empirical material. It was not a major paradigm,<br />
but it was a paradigm for those who were not content with the traditional scholarship.<br />
Although no major transformation of the paradigm had occurred, the methodological<br />
basis of legal scholarship had expanded.<br />
The paradigmatic nature of the critical thought reveals a lot about the critical debates.<br />
There was no predominant paradigm of legal scholarship in the late 1970s, or if<br />
there was, it was very dif<strong>fi</strong>cult <strong>to</strong> adumbrate it. Nevertheless, the critics chose analytical<br />
jurisprudence as their target, 166 despite Aarnio arguing that it was not the dominant paradigm.<br />
167 The critics needed a target and they chose analytical jurisprudence because it<br />
was a modern and a widely-used method of legal scholarship. Although their criticism<br />
often concerned the methods of conceptualism, there was no point in criticizing it because<br />
that had already been done, not least by the proponents of analytical jurisprudence.<br />
Criticism needed a target that could be labeled as conservative in order <strong>to</strong> make<br />
the alternative appear progressive. The critical scholars of course felt that traditional<br />
legal scholarship was conservative and out of <strong>to</strong>uch with reality because of their different<br />
perspective on the problems. Critical legal scholarship was about new conceptions<br />
of law, society, and scholarship, its basis being the way the critical scholars unders<strong>to</strong>od<br />
society and the role of their profession within it.<br />
Indeed, the critical scholars wanted <strong>to</strong> change their profession, and the elaboration<br />
of alternative legal scholarship continued. In 1976, Backman noted the insuf<strong>fi</strong>ciency of<br />
the critical debates and sought <strong>to</strong> develop alternative legal scholarship by specifying its<br />
theoretical basis and the use of the social sciences as well by focusing on those elements<br />
of social science which were meaningful for legal scholarship. He suggested that the<br />
purpose of legal scholarship was <strong>to</strong> investigate law and the state because law was dependent<br />
on the type and the form of the state. The state, however, was a subject of legal<br />
research only <strong>to</strong> the extent that it created and supported law, because, just as it was a<br />
mistake <strong>to</strong> detach law from its political connections, it was a mistake <strong>to</strong> draw a parallel<br />
164 Juha Tolonen, Marxilaisesta oikeustieteestä, 38–50, in Arvo Myllymäki & Annikki Parhakangas<br />
(eds.), Oikeudellisen tutkimuksen problematiikkaa (Tampere: Tampereen yliopis<strong>to</strong> 1975), 36–53.<br />
165 Raimo Blom, Ajatuksia oikeuden tutkimusme<strong>to</strong>dologiasta, 24–26, 30–33, in Myllymäki & Parhakangas<br />
(ed.) 1975, supra n. 164 at 24–35.<br />
166 Backman 1972, supra n. 110; Eriksson 1969, supra n. 54; Kivivuori 1970, supra n. 69.<br />
167 Aarnio 1973, supra n. 148 at 371.<br />
281
etween them. 168 Those who wanted <strong>to</strong> integrate legal scholarship in<strong>to</strong> social science<br />
were not particularly concerned about the various schools of social sciences or their<br />
practical applicability <strong>to</strong> legal scholarship. As the time went on, however, they had <strong>to</strong> be<br />
more speci<strong>fi</strong>c about their arguments lest they repeat the same ones over and over again.<br />
Alternative legal scholarship had developed greatly since the mid-1960s when the<br />
arguments against traditional legal scholarship began <strong>to</strong> be heard. The rebellion on<br />
methods was fully apparent by the end of the decade, and the critical scholars called for<br />
a jurisprudence that would be open with values and policies in law and apply the social<br />
science methods in legal research. They argued that the tradition was dominated by<br />
formalism which detached law from social reality and presented rules and concepts as<br />
natural. The interview with the President Kekkonen in 1970 brought the critical arguments<br />
clearly before the legal profession, and the debates on the methods and purposes<br />
of legal scholarship continued. The 1970s also brought Marxist theory in<strong>to</strong> critical legal<br />
scholarship, although elements of it had been apparent in the 1960s. By the mid-1970s,<br />
critical and alternative legal scholarship had a sophisticated and well-de<strong>fi</strong>ned theoretical<br />
basis.<br />
The development of the critical legal scholarship was similar in Finland <strong>to</strong> that in<br />
the United States and Scandinavia. The fundamental arguments and the ideological<br />
background were established in the 1960s, and the theoretical basis was elaborated and<br />
the scholarship became more widespread during the 1970s. Like their Scandinavian<br />
colleagues, the Finnish scholars found a common basis in Marxism, and with varying<br />
interpretations. Finnish scholars also became interested in political and behaviorist jurisprudence.<br />
Critical legal scholarship thus acquired two main currents; empirical and<br />
sociological jurisprudence on the one hand and the criticism of values and ideologies on<br />
the other. Critical legal scholarship reflected the broader transformation of legal scholarship,<br />
being its most extreme and radical demonstration. In addition, the Finnish critical<br />
scholars organized themselves, but this occurred earlier than in the United States or<br />
Scandinavia, and in closer cooperation with the profession itself. Of course, the National<br />
Lawyers Guild in the United States had functioned as an alternative professional organization<br />
for decades before the 1970s. Nevertheless, Finnish critical legal scholarship<br />
was radical and socially active. The development of the critical legal scholarship, however,<br />
involves several aspects besides jurisprudence, and these will be dealt with in the<br />
following sections.<br />
168 Eero Backman, Rikoslaki ja yhteiskunta I: Teoreettinen erittely rikosoikeuden tieteenkäsityksistä<br />
1800-luvulla ja sen konkretisointi moraalin, uskonnon ja rikoslain suhteisiin Suomessa vuosina<br />
1894─1917 (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1976), 12–27.<br />
282
3 Criticism of constitutional law, 1967─1978<br />
3.1 Constitutional law and scholarship<br />
The intense discussions of constitutional law in the 1960s and 1970s in Finland provide<br />
insights in<strong>to</strong> social radicalism and alternative and critical legal scholarship. The Constitution<br />
of Finland was enacted in 1919, in the aftermath of the civil war once the revolutionary<br />
left had been defeated. Thus, the Constitution established a liberal-bourgeois<br />
society in which the strong powers of the President were meant <strong>to</strong> maintain a stable<br />
buffer against radical reforms. 169 Nevertheless, full democracy and the freedom of expression<br />
and assembly were guaranteed. 170 Finland was by no means a fascist country.<br />
Rather, its society was based on contemporary Western liberal-bourgeois ideals of the<br />
rule of law and equality before law.<br />
However, it was precisely the bourgeois-liberal society that the radicals of the<br />
1960s criticized, arguing that it protected the freedom and values of the economy while<br />
suppressing the values of the less-privileged classes. The critical argument was that<br />
formal equality masked the actual inequality, and it was precisely in the criticism of<br />
constitutional law in which this argument was most pronounced. In this section, I will<br />
therefore discuss the critical analysis of constitutional law and the judiciary, because<br />
these were the most radical parts of the critical legal scholarship, and those in which the<br />
connection between theory and practice was the most obvious.<br />
The basis of the criticism of constitutional law was established in the late 1960s.<br />
The Constitution was placed under critical scrutiny after the mid-decade, 171 and in 1967,<br />
Lars D. Eriksson explained all the critical objections the political left had <strong>to</strong> it in legal<br />
terms. According <strong>to</strong> Eriksson, the Constitution was a political document that established<br />
a capitalist society, since no real democracy could exist without democracy in the economy.<br />
The formalist-legalist bourgeois hegemony had masked the fact that the judiciary<br />
was biased <strong>to</strong>wards the capitalist interests and that the system of legislation protected<br />
the status quo. Thus, only fundamental changes could bring reform. 172 Evident in the<br />
criticism was the socialist rhe<strong>to</strong>ric that demonstrated the evils of capitalism. It also illustrates<br />
the political connections of critical thought. Critical scholars argued that law was<br />
inherently related <strong>to</strong> the economic basis of society, which created social inequalities,<br />
and the traditional scholarship masked and legitimized the prevailing circumstances.<br />
169 Ris<strong>to</strong> Alapuro, State and Revolution in Finland (Berkeley: University of California Press 1988), 202–<br />
208; Kekkonen 1998, supra n. 6 at 65–66. The original Finnish Constitution consisted of four documents<br />
enacted in between 1919 and 1928, the most important being the Form of the Government of 1919.<br />
170 Kekkonen 1998, supra n. 6 at 59–64; Ylikangas 1987, supra n. 4 at 169–172. Some liberal reforms had<br />
already been executed in 1917, the year of independence, before the civil war, such as franchise without<br />
property limits and a law on an eight-hour work-day. (Kekkonen 1998, id. at 47.)<br />
171 See “Keskustelu Suomen valtiosäännöstä”, Politiikka 1/1967, 16–30.<br />
172 Lars D. Eriksson, Politisk demokrati och socialism, FBT 1/1967, 9–14.<br />
283
The purpose of critical scholarship, on the other hand, was <strong>to</strong> disclose reality, the openly<br />
political <strong>to</strong>ne being a fundamental feature of critical scholarship.<br />
Besides the fundamental aspects of the Constitution, the rights of the citizen were<br />
another concern of the critical scholars. Jyränki noted that the traditional conception of<br />
rights as protection against the state was very static. Since they concerned questions of<br />
values, however, rights played an important social role, and a social conception of them<br />
would improve equality as well as social conditions. 173 Important for Jyränki was <strong>to</strong><br />
reconsider the conception of rights and their functions in society, since the simple fact<br />
that they were stipulated in the Constitution could not guarantee their actual signi<strong>fi</strong>cance.<br />
Later he <strong>to</strong>ok these arguments further, arguing that legal practice had increased<br />
the importance of property rights as related <strong>to</strong> other rights, 174 and that the law on national<br />
broadcasting led <strong>to</strong> factual limitations on the freedom of expression. 175 Essential<br />
in the critical thought was the argument that constitutional ideology delimited the execution<br />
of rights, which then became the object of research, for which the radical social<br />
thought provided further impetus. Critical legal scholarship essentially meant a critical<br />
comprehension of law, an alternative way <strong>to</strong> determine the legal and social reality.<br />
The criticism of the Constitution intensi<strong>fi</strong>ed at the end of the 1960s. The cause of<br />
the critical legal scholars was popularized in collections of addresses and pamphlets in<br />
which the arguments for the inherent inequality of constitutional law were put forward.<br />
176 The problem with the constitution was that it reflected the social power structures<br />
and the relations of production, but this was obscured by traditional legal consciousness.<br />
177 A general argument was that the Constitution was deliberately conservative<br />
<strong>to</strong> obviate any real social reform. 178 Critical scholarship was radical in the sense<br />
that it went <strong>to</strong> the roots of the problem, which in this case were in the constitutional system<br />
and social structures. Criticism was therefore <strong>to</strong> be directed at the system.<br />
To the critical scholars, the Constitution was not simply a legal document but a<br />
<strong>to</strong>ol of social organization. 179 Since the criticism reflected leftist thought, the criticism<br />
of the constitutional system was related <strong>to</strong> the concept of private property and its constitutional<br />
protection. Hence, Riepula argued, the ideology of the bourgeoisie had been<br />
insinuated in<strong>to</strong> the Constitution, 180 and Jyränki explained that this was so because the<br />
173 Jyränki 1968, supra n. 44 at 978–993, 999.<br />
174 Antero Jyränki, Valtiosäännön säätäjien tarkoitukset ja noudatettu käytäntö, Sosiologia 1/1968, 20–28.<br />
175 Antero Jyränki, Yleisradio ja sananvapaus: Tutkimus valtionvalvonnasta ja sananvapaudesta yleisradio<strong>to</strong>iminnassa<br />
(<strong>Helsinki</strong>: Tammi 1969), 133–146.<br />
176 Antero Jyränki & Esko Riepula (eds.), Mitä muuttaisin hallitusmuodossamme: Puheenvuoroja Suomen<br />
hallitusmuodon 50-vuotispäivän johdosta (Tampere: Tampereen yliopis<strong>to</strong> ─ Oikeustieteen lai<strong>to</strong>ksen monistesarja<br />
4/1969); Tala (ed.) 1969, supra n. 46; Karapuu (ed.) 1970, supra n. 46.<br />
177 Lars D. Eriksson, Staten och samhället: Till den marxistiska demokratikritiken, Sosiologia 6/1970,<br />
313–321.<br />
178 Antero Jyränki, Perustuslain muuttamismahdollisuudet, 93, in Karapuu (ed.) 1970, supra n. 46 at 93–<br />
99; Ilkka Saraviita, Eduskunnan vallan tarpeet<strong>to</strong>mat rajoitukset, 31–33, in Karapuu (ed.) 1970, supra n. 46<br />
at 25–44.<br />
179 Lars D. Eriksson, Jugoslaviens socialistiska demokrati, Oikeus 3/1973, 25.<br />
180 Esko Riepula, Näkökohtia valtiosääntömme arvomaailmasta ja valtasuhdejärjestelmästä (Tampere:<br />
Tampereen yliopis<strong>to</strong> ─ Oikeustieteen lai<strong>to</strong>ksen monistesarja 3/1969), 13–20.<br />
284
Constitution was drafted in accordance with the interests of the bourgeoisie as a consequence<br />
of the civil war. 181 This led <strong>to</strong> the reconsideration of the concept of rights and<br />
their constitutional protection. The critical opinion was that private property had a dominating<br />
position in Finnish society, and that democracy in the economy was needed in<br />
order <strong>to</strong> produce genuine democracy. 182 The Constitution was obviously drafted during<br />
controversial times, but whether it incorporated a particular kind of society and economic<br />
system is a matter of debate. The arguments of the critical scholars reveal more about<br />
their interpretation than about the Constitution as such. Their perception conformed <strong>to</strong><br />
the radical leftist thinking of the 1960s and differed from the traditional view that considered<br />
the Constitution rather as a legal document.<br />
In attacking the fundamentals of constitutional law the question of industrial democracy<br />
was also debated. The critical scholars opined that industrial democracy would<br />
contribute <strong>to</strong> the real sovereignty of the people. Eriksson wrote that since the sancti<strong>fi</strong>cation<br />
of private property caused problems of democracy and equality, 183 decision-making<br />
should be brought closer <strong>to</strong> the citizen instead of being concentrated in the hands of the<br />
ruling elite, 184 and the conceptions of share-holding and joint-s<strong>to</strong>ck companies should<br />
be reconsidered. 185 Jyränki explained that the constitution stabilized the situation so that<br />
the minority which held the economic power could avert any fundamental changes. The<br />
contemporary society was a society of inequalities, which the law protected. Constitutional<br />
scholarship had also contributed <strong>to</strong> the maintenance of the bourgeois consciousness,<br />
which masked the true nature of social relations. 186 For the critical scholars, the<br />
constitution was a fortress of indoctrination of false consciousness, and thus minor<br />
changes would not produce any real reform. What was needed, rather, was a fundamental<br />
change in the Constitution and in the traditional legal consciousness.<br />
The split between the critical and the traditional scholars was obvious in their conception<br />
of property. A traditional response was that the critical scholars had exaggerated<br />
the meaning of property. Although a more flexible concept was needed, property rights<br />
were still <strong>to</strong> be strictly protected. 187 Traditional scholars argued further that the critics<br />
had misinterpreted the purpose of the protection of rights while relating property rights<br />
<strong>to</strong> personal liberties. 188 To view property as a social concept was a radical break from<br />
the tradition, which obviously seemed irrational <strong>to</strong> traditional legal scholars. It was a<br />
181 Antero Jyränki, Kriittinen katsaus perustuslakiemme syntyvaiheisiin, 15–23, in Karapuu (ed.) 1970,<br />
supra n. 46 at 11–24.<br />
182 Kettil Bruun & Antti Eskola (eds.), Taloudellinen valta Suomessa (<strong>Helsinki</strong>: Tammi 1969). See also<br />
Antti Eskola, Taloudellinen valta demokratiaan pyrkivässä yhteiskunnassa, in Bruun & Eskola (eds.)<br />
1969, id. at 205–222.<br />
183 Lars D. Eriksson, Arbete eller saker? Contra 4/1969, 8–9.<br />
184 Lars D. Eriksson, taloudellinen demokratia ja sosiaalinen vallankumous, in Karapuu (ed.) 1970, supra<br />
n. 46 at 100–109.<br />
185 Lars D. Eriksson, Aktiebolaget ─ en dödsdömd institution, Contra 1/1971, 16–20.<br />
186 Antero Jyränki, Valta ja vallan siir<strong>to</strong> (<strong>Helsinki</strong>: Kirjayhtymä 1971), 9–23, 32–34, 39.<br />
187 Mikael Hidén, Omaisuuden perustuslainsuoja ─ nykynäkymiä ja näkökohtia, LM 1971, 99–134.<br />
188 Toivo Holopainen, Säänneltävän arvo ja perustuslainsäätämisjärjestys, LM 1970, 672–680.<br />
285
notion of the 1960s and 1970s <strong>to</strong> argue for personal liberty and against property rights,<br />
and thus the perceptions on the matter differed fundamentally.<br />
The complex and not unambiguous view of the critical scholars on the problem of<br />
rights was seen in their endorsement of social rights. The critics argued that it was easier<br />
<strong>to</strong> intervene in the personal liberty of a person than on private property rights. 189<br />
However, they also encouraged more state activity in the protection and enforcement of<br />
social rights. The view of the early 1970s was still relatively strongly on the side of the<br />
welfare state and was optimist about the public potential <strong>to</strong> provide free services for the<br />
people, such as housing, education, and culture. 190 This is why the critical legal scholars<br />
also argued that the rights of the poor were not effective, and that the general increase in<br />
wealth sometimes produced more misery. The state should thus be stronger in implementing<br />
the actual effectiveness of rights. 191 In general, the radical thought was critical<br />
of the welfare state because it was seen as a guardian of the status quo and a re-producer<br />
of false consciousness. With respect <strong>to</strong> redistribution and social rights, however, the<br />
critical scholars often favored a strong state. They demanded more power for the parliament<br />
over the government and the president, and they also demanded more power for<br />
the public authorities <strong>to</strong> redistribute economic welfare, but not in intervening in the private<br />
life of the citizen.<br />
The state emphasis on economic matters and rights was part of the criticism of<br />
formalism. For instance, in an analysis of rights-consciousness in modern society, Blom<br />
argued that since formal rights were detached from their economic basis, they caused<br />
actual inequality. Law and rights reflected and protected economic relations and masked<br />
and legitimized the resultant inequality. 192 People were becoming more interested in<br />
their rights as the welfare state improved and the debates on the Constitution continued.<br />
The Marxist perspective on rights encouraged study of their structural relations and the<br />
consequences. Once the rights consciousness had made its way <strong>to</strong> the center of legal<br />
thought, critical scholars began <strong>to</strong> place even heavier emphasis on them. Blom, for example,<br />
argued that <strong>to</strong> be effective, social rights and their enforcement should be strictly<br />
stipulated in the Constitution. 193 Social rights often conflicted with private property<br />
rights, 194 so the critical scholars argued that property rights should not be interpreted as<br />
a hindrance <strong>to</strong> the enforcement of social rights. 195 The emergence of social rights as<br />
well as critical thought required a more flexible understanding of the concept of proper-<br />
189 Jyränki 1968, supra n. 174 at 20.<br />
190 Klaus Mäkelä (ed.), Ilmaiseksi (<strong>Helsinki</strong>: Tammi 1973).<br />
191 Ris<strong>to</strong> Laakkonen, Työntekijän oikeusturva, in Tala (ed.) 1969, supra n. 46 at 146–160; Heikki Karapuu,<br />
Riis<strong>to</strong>n turvaaminen ja työväestön perusoikeudet, in Karapuu (ed.) 1970, supra n. 46 at 82–89; Jeja-<br />
Pekka Roos, Hyvinvointi yhteiskuntapolitiikan tavoitteena, Oikeus 4/1973, 28–33; Raimo Blom, Kapitalismi<br />
ja työväenluokan TSS-oikeudet, Oikeus 3/1975, 3–10.<br />
192 Raimo Blom, Perusoikeustajunta ja perustuslaki, IV Oikeustiede ─ Jurisprudentia 83, 90–97, 167–169<br />
(1973).<br />
193 Raimo Blom, Perusoikeudet kapitalismissa, Oikeus 4/1977, 194, 199–201.<br />
194 Paavo Reinikainen, Taloudellisista, sosiaalisista ja sivistyksellisistä perusoikeuksista, Oikeus 3/1978,<br />
164.<br />
195 Antero Jyränki, Omistaminen perusoikeutena, Oikeus 2/1978, 74–75.<br />
286
ty which the critical scholars argued was an absolute concept. They wanted <strong>to</strong> see rights<br />
in a more social context.<br />
Changes occurred in constitutional scholarship at a more general level as well. In a<br />
text-book on constitutional law, published in 1972, Jyränki and his co-authors stressed<br />
the Marxist aspects of the Constitution and the alternative aspects of legal scholarship in<br />
the recent years. 196 These changes followed the methodological turn in general, following<br />
the revision of Finnish his<strong>to</strong>ry and its impact on the law in particular. As we saw,<br />
Jyränki endorsed methodological eclecticism and the focus on law in action. In a study<br />
concerning the Constitution and social change, he examined the his<strong>to</strong>ry of particular<br />
constitutional occurrences, analyzing their impact on contemporary constitutional law.<br />
In brief, he argued that constitutional interpretation mostly reflected the needs of the<br />
economy, and that the protection of property was crucial in constitutional law. Following<br />
the American classic, Charles Beard, he concluded that the Finnish Constitution<br />
created a system in which no social class could ever control all of the state powers, and<br />
the system overall was thus stabilized. 197 His<strong>to</strong>rical examination of practical cases thus<br />
proved, according <strong>to</strong> Jyränki, the inevitable connection between law and economic<br />
power. This study was one of the <strong>fi</strong>rst critical legal his<strong>to</strong>ries in Finland in the 1970s<br />
with its emphasis on the social and ideological aspects of constitutional interpretation. It<br />
reflected the elements of critical and alternative legal scholarship in various ways, and<br />
was therefore a considerable deviation from the traditional scholarship.<br />
The critical interpretation of his<strong>to</strong>ry also highlighted the controversies in legal<br />
thought. The older and more traditional constitutional scholar, though not extremely so,<br />
Paavo Kastari 198 criticized Jyränki for over emphasizing the class conflict and therefore<br />
making subjective interpretations which the sources did not support. 199 From the critical<br />
perspective, the his<strong>to</strong>ry of law involved the struggle between the social classes. Thus it<br />
was important for the critical scholar <strong>to</strong> understand law in its his<strong>to</strong>rical and social context,<br />
which brought new dimensions <strong>to</strong> the analysis but also caused problems of interpretation<br />
and argumentation. As was the case in Scandinavian Marxist legal scholarship,<br />
the more traditional scholars criticized the Marxist analysis for dis<strong>to</strong>rting the sources.<br />
The critical perspective on his<strong>to</strong>ry was nonetheless a fundamental characteristic of critical<br />
scholarship, marking the difference between the critical and traditional scholars.<br />
Besides being an important aspect in the critical legal scholarship on constitutional<br />
law, the revision of his<strong>to</strong>ry was an essential aspect of the more general transformation<br />
of scholarship in the 1970s. From a critical perspective, the revision of his<strong>to</strong>ry was<br />
196 Antero Jyränki, Juhani Perttunen, Eero Vilkkonen, Valta, valtio ja kansalainen (<strong>Helsinki</strong>: Tammi<br />
1972).<br />
197 Antero Jyränki, Perustuslaki ja yhteiskunnan muu<strong>to</strong>s: Tutkimus varallisuusoikeuksien ja taloudellisen<br />
<strong>to</strong>iminnan vapauden kehittymisestä perustuslain tulkinnan avulla v. 1863─1919 (<strong>Helsinki</strong>: Tammi 1973),<br />
esp. at 12–14, 86–88, 104–106, 133–136, 221–226.<br />
198 Paavo Kastari was a traditional scholar, but as we saw, he also endorsed a sociological approach <strong>to</strong><br />
constitutional law. In the 1940s his studies reflected a non-traditional, sociological jurisprudence which<br />
was rare in Finnish legal scholarship in those days.<br />
199 Paavo Kastari, Perustuslaki ja yhteiskunnan muu<strong>to</strong>s [book review], LM 1974, 292–294, 296.<br />
287
needed because those his<strong>to</strong>rical events which were considered as a menace <strong>to</strong> the contemporary<br />
society were often regarded negatively. 200 For the critical scholars, the his<strong>to</strong>rical<br />
dimension helped <strong>to</strong> understand law instead of taking it at face-value. 201 This also<br />
raised the problems of the civil war. Nieminen, for instance, noted that the revolutionary<br />
constitution of 1918 was not as socialist as was commonly assumed, but rather a truly<br />
democratic one. 202 The point was <strong>to</strong> show that the Finnish communists were not the<br />
same as the Soviet communists. In addition, Jyränki demonstrated that the drafting of<br />
the Constitution in 1917–1919 was a break with legality and tradition, and that the interpretation<br />
of the Constitution had changed in the course of time. 203 Jyränki obviously<br />
argued that the common faith in legalism and continuity in Finnish constitutional law<br />
was rather a myth with only a faint correspondence <strong>to</strong> reality. This notion enabled a<br />
contribution <strong>to</strong> the reform of the Constitution that was going on at the time and gave<br />
impetus <strong>to</strong> a more thorough reform. Because of the emphasis on the connection between<br />
scholarship and politics, alternative and critical legal scholarship bore a close connection<br />
<strong>to</strong> relevant contemporary <strong>to</strong>pics.<br />
The emphasis on his<strong>to</strong>ry and class conflict reflected the general politicization of<br />
scholarship in the 1970s. 204 Research often <strong>to</strong>ok a stand on controversial political questions.<br />
Jyränki thus argued that the Finnish Constitution was a semi-presidential system<br />
in which the powers of the parliament were restricted, 205 and that the powers of the<br />
President had increased in practice. 206 The purpose was obviously <strong>to</strong> articulate the<br />
strong position of the president in relation <strong>to</strong> the parliament. Since the political left considered<br />
the strong presidential powers as a hindrance <strong>to</strong> reform, scholarship focused on<br />
analyzing the evolution and the meaning of these powers. Non-traditional scholarship<br />
was politically oriented, as evident in the choice of methods and subjects as well as in<br />
the use of the <strong>fi</strong>ndings.<br />
His<strong>to</strong>ry and reality also related <strong>to</strong> Marxist theory which stressed the relationship<br />
between law and the state. Eriksson noted that the Constitution was not simply a <strong>to</strong>ol of<br />
the power of the ruling class, but a media<strong>to</strong>r between conflicting social interests. Scienti<strong>fi</strong>c<br />
determination of its exact meaning was impossible since interpretations varied according<br />
<strong>to</strong> the perspective. 207 Therefore, constitutional concepts had <strong>to</strong> be analyzed in<br />
particular contexts. 208 A central tenet of the critical thought was that there were no ob-<br />
200 Leena Mäntynen, Käsityksiä valtiosta ja valtiosäännöstä, Oikeus 3/1976, 121–126.<br />
201 Rontu 1973, supra n. 130 at 21; Tolonen 1973, supra n. 128 at 12–15.<br />
202 Ari Nieminen, Punaisen Suomen “punainen” perustuslaki, Oikeus 1/1974, 3–14. The legislative documents<br />
of the national delegation of the revolutionary party from 1918 were published in Oikeus 2/1978,<br />
112–131.<br />
203 Antero Jyränki, Kontinuiteetti, legaliteetti, stabiliteetti: Suomalaisen perustuslakikäsityksen ääriviivoja,<br />
V Oikeustiede ─ Jurisprudentia 5, 22–24, 29–33, 38–40, 43–44 (1974).<br />
204 Jussi Raumolin, Valtiosääntöuudistus, puolueet ja politiikan tutkimus, Politiikka 2/1974, 126–141.<br />
205 Antero Jyränki, Vallanjako vai eduskunnan valta? Suomalaisen presidialismin juuria v. 1906─1919,<br />
IX Oikeustiede ─ Jurisprudentia 75–119 (1977).<br />
206 Antero Jyränki, Presidentti: Tutkimus valtionpäämiehen asemasta Suomessa v. 1919─1976 (<strong>Helsinki</strong>:<br />
Suomalainen lakimiesyhdistys 1978), 83–89, 96–97.<br />
207 Lars D. Eriksson, Legalstrategins möjligheter, Oikeus 2/1975, 3, 7.<br />
208 Lars D. Eriksson, För ett dynamiskt legitimitetsbegrepp, TfR 1975, 145–157.<br />
288
jective interpretations, and the social context and the values of the interpreter affected<br />
them. Since the Constitution was a signi<strong>fi</strong>cant legal institution, performing a fundamental<br />
role in society, the critical scholars emphasized the importance of seeing it in a social<br />
context instead of simply as a normative institution. Criticism of constitutional law and<br />
critical legal scholarship progressed hand in hand in this regard, influencing and being<br />
influenced by each other.<br />
It is no surprise that the Marxist theory of the state also emerged in Finnish scholarship<br />
in the late 1970s. According <strong>to</strong> the critical scholars, the law and the state were in<br />
an organic relationship, and there could be no law without the state and no state without<br />
the law. 209 The emergence of the state followed the emergence of the economy, and the<br />
economically powerful class controlled the state as a way <strong>to</strong> protect and reproduce the<br />
relations of power. Law was a product of the state and it made social relations appear<br />
abstract and formal in order <strong>to</strong> mask the reality. 210 In modern society, however, the political<br />
reality had <strong>to</strong> delimit democracy in order <strong>to</strong> maintain the capitalist mode of production.<br />
211 Therefore, the state mysti<strong>fi</strong>ed the democratic process by presenting the parliament<br />
as the most signi<strong>fi</strong>cant power and by reducing democracy <strong>to</strong> voting in order <strong>to</strong><br />
make the people accept the situation. 212 Critical scholarship sought <strong>to</strong> reveal that the<br />
apparently democratic institutions of the state were empty in practice, thus minimizing<br />
the power of the people and maximizing the power of capital. Marxist rhe<strong>to</strong>ric and<br />
analysis were used <strong>to</strong> disclose what was called the ideological function of law, and<br />
hence <strong>to</strong> provide data for legal change. The fundamental nature of the analysis reflects<br />
the radicalism of the critical scholarship, and the use of the Marxist theory reflects the<br />
evolution of the critical scholarship as well as the importance of leftist rhe<strong>to</strong>ric <strong>to</strong> it.<br />
Even before the Marxist turn of the 1970s, critical scholars were interested in how<br />
the law contributed <strong>to</strong> social failings. A central theme in this regard was the criticism of<br />
the process of legislation. The critics argued that the power <strong>to</strong> legislate had moved from<br />
the parliament <strong>to</strong> various committees <strong>to</strong> a large extent, which was harmful for social<br />
development because the committees paid attention rather <strong>to</strong> technicalities than social<br />
issues, 213 were often closed and thus excluded open discussion, 214 and relied on the expertise<br />
of traditional legal scholars whose conservatism thus influenced the law greatly.<br />
215 The President of Finland con<strong>fi</strong>rmed these arguments in the no<strong>to</strong>rious interview in<br />
1970, in which he also endorsed a socially and politically more diversi<strong>fi</strong>ed composition<br />
209 Olli Mäenpää, Staten och rätten, Retfærd 7/1978, 59.<br />
210 Raimo Blom, Valtio, oikeus ja yhteiskunta: Luen<strong>to</strong>ja materialistisesta valtioteoriasta (Tampere: Tampereen<br />
yliopis<strong>to</strong> 1976), 133–140.<br />
211 Kaarlo Tuori, Om inskränkningen av demokratin, Retfæd 4/1977, 27–53.<br />
212 Raimo Blom, Perustuslaki ja kapitalismin kehitys (<strong>Helsinki</strong>: Tutkijalii<strong>to</strong>n julkaisusarja 1978), 58–59.<br />
213 Olavi Heinonen, Kenellä on lainvalmisteluvalta Suomessa? 47–50, in Karapuu (ed.) 1970, supra n. 46<br />
at 47–58; Ris<strong>to</strong> Jaakkola, Esimerkki lainvalmistelusta, 59–60, in Karapuu (ed.) 1970, supra n. 46 at 59–<br />
65.<br />
214 Jacob Söderman, Laiha keskustelu köyhän oikeusturvasta, Sosiologia 6/1970, 322–324.<br />
215 Eero Backman, Milloin lakia pitäisi muuttaa? Contra 1/1970, 14–19; Esko Riepula, Juridisesta asiantuntijavallasta<br />
yhteiskunnallisessa päätöksenteossa, Contra 3/1970, 6–10.<br />
289
of the committees as well as more sociological expertise in them. 216 Backman also argued<br />
that whenever a problem was <strong>to</strong> be regulated, it had <strong>to</strong> be thoroughly analyzed in<br />
open discussion on the potential goals and the means <strong>to</strong> achieve them. 217<br />
The question of legislation was also one of social and academic power. For the<br />
critical legal scholars, the major problems regarding legislation were that its drafting<br />
was undemocratic and mostly controlled by conservative legal scholars who did not<br />
understand society. Their response was that legislation and its drafting were <strong>to</strong> be open,<br />
and legal scholars should have more understanding of society. Since their scholarship<br />
was based on social, political, and behavioral sciences, alternative and critical legal<br />
scholars considered themselves as lawyers for the society, having a better understanding<br />
of the social functions of law than the traditional profession.<br />
Relating <strong>to</strong> the process of legislation was the problem of its constitutionality. Critical<br />
scholars were skeptical about judicial review and the constitutional court because<br />
they thought that the courts were a very conservative social institution. 218 Some traditional<br />
scholars, on the other hand, favored an establishment of a constitutional court<br />
because of its potential <strong>to</strong> protect rights. 219 This was also the opinion of the political<br />
right, which considered such a court necessary because of the rise of Marxism and the<br />
repressive use of the law by the radical left. 220 An important fac<strong>to</strong>r in the conflict was<br />
that for the traditional view, the control of the constitutionality of legislation was a legal,<br />
not a political issue, whereas for the critical view it was precisely a political issue.<br />
For instance, Riepula argued that control of the constitutionality of law could not be<br />
made apolitical by delegating it <strong>to</strong> the courts, and it should be opened up <strong>to</strong> a more diversi<strong>fi</strong>ed<br />
discussion. 221 Since the process of legislation was a question of social power,<br />
it should not be masked behind the mist of legal rhe<strong>to</strong>ric. 222 When the law was considered<br />
as politics, as the critical scholars did, there was nothing apolitical about law. Part<br />
of the criticism might have been sheer trashing of the traditional symbols and values,<br />
but some of it related <strong>to</strong> genuine concern for the possibility of reform and enforcement<br />
of equal rights. Critical scholarship thus involved several aspects of society, politics,<br />
and scholarship.<br />
The criticism of the inability of the legal system <strong>to</strong> enforce the rights of the citizen<br />
was also apparent in the criticism of the Chancellor of Justice. An entire issue of Oikeus<br />
was dedicated <strong>to</strong> this problem. The critics argued that the Chancellor was guided by his<br />
political biases and that he had neglected his duties <strong>to</strong>wards the citizen while focusing<br />
on matters of legislation. 223 Eriksson related the problem <strong>to</strong> the blind faith in legalism in<br />
216 Kekkonen 1970, supra n. 72 at vii–xi.<br />
217 Backman 1970, supra n. 215 at 19.<br />
218 Lars D. Eriksson, Luokkayhteiskunnan tuomioistuimet, 36–37, in Tala (ed.) 1969, supra n. 46 at 18–<br />
42; Riepula 1973, supra n. 120 at 350–359.<br />
219 Veli Merikoski, Valtiosääntötuomioistuimen tarpeellisuus, LM 1973, 91–105.<br />
220 Oikeus kysyy ─ työnantajat vastaavat, Oikeus 1/1975, 50.<br />
221 Riepula 1973, supra n. 120 at 353.<br />
222 Esko Riepula, Säädösvalvonta Suomessa [book review], LM 1974, 635.<br />
223 Tuula Autio & Tarja Hyvönen, Oikeuskansleri ja työsuojelu, Oikeus 4/1976, 194–198; Antero Jyränki,<br />
Oikeuskanslerin harjoittama ennakkovalvonta tasavallan presidentin ja valtioneuvos<strong>to</strong>n päätöksenteossa,<br />
290
Finnish legal thought, arguing that legal problems were traditionally unders<strong>to</strong>od in formalist<br />
way, which blurred the realities behind them and caused inequalities and problems.<br />
224 The trashing of authority and the radical critique of traditional institutions were<br />
evident in every aspect of critical legal scholarship. By the mid-1970s, critical and alternative<br />
scholars had formed a strong front which attacked every aspect of the law.<br />
Criticism of constitutional law reflected various aspects of social radicalism and<br />
critical legal scholarship. The polarization of the Finnish society of the early 1970s between<br />
the working class and the bourgeoisie was clear in the critical rhe<strong>to</strong>ric. The critical<br />
scholars perceived the Constitution as part of a his<strong>to</strong>rical and social <strong>to</strong>tality, originating<br />
and functioning in a context with speci<strong>fi</strong>c purposes. Because their point of view<br />
was typically a Marxist and a leftist one, they argued that the Constitution was part of<br />
the legal myth which created a capitalist society and protected and reproduced its institutions.<br />
Their scholarship advocated the methods of his<strong>to</strong>ry and social science in order<br />
<strong>to</strong> produce data for reform. In this regard, theory and practice were close <strong>to</strong> each other.<br />
In order <strong>to</strong> illuminate this relationship, we shall now take a brief look at the reform of<br />
the Constitution of Finland in the 1970s.<br />
The Constitution was debated in the 1960s, and there was a general agreement on<br />
the need for reform, which was initiated in 1970. The reform committee published its<br />
<strong>fi</strong>rst interim report in 1974. It was unanimous about increasing democracy and improving<br />
the rights of the citizen, but disagreement arose as <strong>to</strong> the extent of increasing the<br />
powers of the parliament and the scope of these rights. The radical side, represented by<br />
Jyränki, who was the vice-chairman of the committee, was willing <strong>to</strong> concentrate more<br />
power in the parliament, whereas the more moderate side wanted <strong>to</strong> maintain a balance<br />
between the state branches and proceed with the reform cautiously. 225 I shall not discuss<br />
the reform in detail but provide some examples related <strong>to</strong> the critical constitutional<br />
scholarship.<br />
We have seen that the critical legal scholars argued that the Constitution was based<br />
on the interests of capitalist society and was conservative. They therefore endorsed a<br />
<strong>to</strong>tal reform of the system. The radicals had their own proposal for the Finnish Constitution,<br />
which would have turned Finland in<strong>to</strong> a soviet republic in which all the power<br />
would belong <strong>to</strong> the people, and where the courts would be subjected <strong>to</strong> democratic control.<br />
226 This radical proposal was meant <strong>to</strong> provide a framework for a more democratic<br />
society and would have altered the whole basis of constitutional law. It was obviously<br />
Oikeus 4/1976, 179–189; Hannu Tapani Klami, Oikeuskansleri ja laki, Oikeus 4/1976, 190–193; P.O.<br />
Träskman, Landets högste åklagare, Oikeus 4/1976, 199–206.<br />
224 Lars D. Eriksson, Justitiekansler ─ legalitetens väktare? Oikeus 4/1976, 170–178.<br />
225 Valtiosääntökomitean välimietintö 1974:27, 9–22, 24–32, 50–56, 66–72; Suomen valtiosäännön uudistaminen<br />
1974: Tausta, tavoitteet ja mahdollisuudet (Tampere: Tampereen yliopis<strong>to</strong> ─ Oikeustieteen lai<strong>to</strong>s<br />
B-raportteja 1/1974), 49–55, 86–87. Jyränki has also described and analyzed the work of the committee.<br />
(Antero Jyränki, Perustuslakiuudistus (<strong>Helsinki</strong>: Tammi 1974).) The perspective of the book is, however,<br />
radical.<br />
226 Lars D. Eriksson & Heikki Karapuu, Luonnos uudeksi perustuslaiksi, in Karapuu (ed.) 1970, supra n.<br />
46 at 116–120; Klaus Mäkelä, Kaikki valta neuvos<strong>to</strong>ille, in Karapuu (ed.) 1970, supra n. 46 at 110–115.<br />
291
meant <strong>to</strong> provoke discussion, but its substance was illustrative of the critical thinking. In<br />
any event, the radical agenda was real and it did have lots of signi<strong>fi</strong>cance in practice.<br />
The radical notions were also the basis of the radical wing of the committee, which<br />
adopted the view that the since Constitution was drafted on the basis of class conflict, it<br />
protected the interests of the bourgeoisie and stabilized the prevailing social order. 227<br />
The greatest controversy over the reform followed from this notion. The radicals proposed<br />
a flexible, social concept of private property, endorsing an amendment that would<br />
have made expropriation for public purposes easier. They sought <strong>to</strong> enable the reallocation<br />
of large portions of the economic structure and big corporations <strong>to</strong> social control if<br />
it was considered appropriate in improving social inequalities that the economic relations<br />
caused, the ultimate goal being in the establishment of the prerequisites for a<br />
planned economy. 228 These proposals were extreme, but they have <strong>to</strong> be unders<strong>to</strong>od in<br />
the context of the 1970s. As political matters they were radical indeed, but they suited<br />
the political rhe<strong>to</strong>ric and conflict of the time and were not exceptional by the standards<br />
of the time. The critical legal scholars endorsed a new, more social and less formal concept<br />
of property, a concept which correlated with the goals of the radical left. Critical<br />
legal scholarship reflected the radical social thought, but it also contributed <strong>to</strong> it by<br />
making it clearer and providing it with more practical utility.<br />
In connection with the reform, the critical scholars could demonstrate the ideological<br />
restrictions of legal practice. After the report was published, critical legal scholars<br />
argued that the information on it was inadequate and that the political right had tried <strong>to</strong><br />
undermine the proposals of the left. 229 Eriksson noted that the practice of the moderate<br />
reformers was contrary <strong>to</strong> the fundamental principle of the reform, which was <strong>to</strong> improve<br />
the sovereignty of the people. 230 The politics and rhe<strong>to</strong>ric were closely linked, the<br />
central point being that there were noble concepts which were not acted upon in reality.<br />
This was an effort <strong>to</strong> demonstrate the influence of ideology on the discourse over the<br />
Constitution, and it also reflected the critical perspective on law, which emphasized its<br />
actual functioning in the social reality.<br />
The way the critical scholars mixed political and scholarly rhe<strong>to</strong>ric and how this<br />
was incomprehensible <strong>to</strong> the traditional scholarship was also obvious. The defenders of<br />
the moderate reform argued that the problem concerned such fundamental issues that<br />
there was no reason <strong>to</strong> hurry. 231 The radicals were also criticized for their proposals. A<br />
professor of constitutional law, Veli Merikoski argued that centralization of power <strong>to</strong><br />
the parliament was harmful for democracy, 232 and Mikael Hidén, a young but traditional<br />
227 Valtiosääntökomitean välimietintö 1974:27, 17–19.<br />
228 Valtiosääntökomitean välimietintö 1974:27, 113–123; Jyränki 1974, supra n. 225 at 88–90. (On the<br />
disagreement about the provisions on expropriation and the protection of private property, see Jyränki<br />
1974, id. at 146–153.)<br />
229 Esko Riepula, Huomioita valtiosääntökomitean työskentelystä, Politiikka 2/1974, 161–168.<br />
230 Lars D. Eriksson, Den delade folksuveräniteten, Politiikka 2/1974, 115–123.<br />
231 Presidentti Aarne Nuorvalan puhe valtiosääntökomitean mietinnön luovutustilaisuudessa, LM 1975,<br />
399, 403.<br />
232 Veli Merikoski, Vastuuperiaate valtiosääntöuudistuksessa, LM 1975, 409–414, 417–419.<br />
292
legal scholar argued that the concept of property of the radicals was ideological and<br />
legally unsound. 233 The critical scholars often criticized the traditional scholars for ignoring<br />
the ideological biases in law and not understanding its social context, and now<br />
they faced the same criticism. The traditional point was that property was <strong>to</strong> be approached<br />
from a purely legal perspective without paying attention <strong>to</strong> any ideological<br />
fac<strong>to</strong>rs. Because of the differences in perspective, the traditional and critical legal scholars<br />
were in a continuous merry-go-round on the issue. The critical insight of the state<br />
institutions differed fundamentally from that of the traditional one, and since they perceived<br />
problems differently, they had dif<strong>fi</strong>culty in <strong>fi</strong>nding a common language. Thus the<br />
debates on the Constitution clearly reflect the radicalism of the critical thought and the<br />
huge gulf between the traditional and critical epistemology.<br />
Since the critical thought was all-encompassing, the critical scholars attacked a variety<br />
of the state institutions. The state administration was also one of the authorities <strong>to</strong><br />
which Marxist analysis could be appropriately applied. In this respect, <strong>to</strong>o, the critical<br />
scholars wanted <strong>to</strong> go beyond the apparent reality. Legal scholarship on administrative<br />
law followed the general trends of jurisprudence with a lag of a few years. In the 1970s,<br />
scholars of administrative law became interested in analytical jurisprudence and began<br />
<strong>to</strong> criticize the conceptual tradition. 234 In this regard, however, the critical scholars attacked<br />
the thoroughgoing effects of the structure of the state, not analytical jurisprudence.<br />
A general argument was that the powers of the parliament were reduced in favor<br />
of the executive, 235 which was harmful <strong>to</strong> democracy, 236 and an effort of the capitalist<br />
state <strong>to</strong> maintain its legitimacy. 237 The aim was once again <strong>to</strong> go beyond the meaning of<br />
concepts and <strong>to</strong> examine the reasons and purposes of the law in action. In the pursuit of<br />
the real essence of the executive branch, a theory was needed, and for the critical scholars<br />
it was Marxist theory that was the most appropriate.<br />
Marxist theory on administrative law followed the familiar patterns of critical legal<br />
scholarship. A signi<strong>fi</strong>cant person in this regard was Kaarlo Tuori, a young, promising<br />
scholar of administrative law in the mid-1970s. He was also interested in Marxism and<br />
critical legal scholarship, on the basis of which he developed a critical theory of the administration<br />
of the state. According <strong>to</strong> him, administration mediated the politics of the<br />
state which emanated from the class conflict and society. It was therefore important <strong>to</strong><br />
understand the dialectical development of both the form and substance of law in the<br />
regard in its his<strong>to</strong>rical, social, and political context. One could then understand the character<br />
of the authority of the state as a class power and the law as a legitimizing and mys-<br />
233 Mikael Hidén, Näkökohtia omaisuudensuojasäännöstöstä uudistuskaavailujen kohteena, LM 1975,<br />
440–441, 448–457.<br />
234 Heikki Kulla, Valtio-oikeudellisen positivismin synty ja vallanjako, Oikeus 2/1975, 27. See also Matti<br />
Nieminen, Den senare analytiska rättsteorin och den förvaltningsrättsliga forskningen i Finland, JFT<br />
1976, 266–279.<br />
235 Olli Mäenpää, Eduskunnan HM 28 ja 65.1 §:ään perustuva organisaatiovalta, VIII Oikeustiede ─ Jurisprudentia<br />
37, 42–43, 61, 75–76 (1976).<br />
236 Tuori 1977, supra n. 211.<br />
237 Blom 1976, supra n. 210 at 281–282.<br />
293
tifying institution. 238 Critical self-reflection on theory was also required, since scholarship<br />
on administrative law also legitimized and reproduced the system. 239<br />
The debates on the constitution faded in the latter half of the 1970s. 240 By 1977,<br />
the <strong>to</strong>tal reform of the constitution was at a temporary standstill, and the focus moved<br />
<strong>to</strong>wards reform of the protection of the rights of the citizen. 241 While the criticism of the<br />
Constitution was fading in the mid-1970s, and while critical legal scholarship in general<br />
was becoming theoretically more sophisticated, critical legal scholars began <strong>to</strong> analyze<br />
more particular aspects of law. Nevertheless, as long as the critical debates on both the<br />
Constitution and constitutional scholarship were intense, critical scholars propounded<br />
the same arguments in these respects. For example, Jyränki, one of the most prominent<br />
proponents of critical legal scholarship and who also sat on the reform committee, promoted<br />
the same arguments in both his scholarship and his political activity. Scholarship<br />
was indeed politicized in the 1970s. For the critical scholars, there were not simply legal<br />
rules, principles, and doctrine <strong>to</strong> analyze, but they all related <strong>to</strong> the complex <strong>to</strong>tality of<br />
the society which had <strong>to</strong> be taken in<strong>to</strong> account. Another example that illuminates this<br />
aspect was the criticism of the judiciary which is the <strong>to</strong>pic of the next section.<br />
3.2 Criticism of the judiciary<br />
Courts are the organs that apply law and transform law in books in<strong>to</strong> law in action. It is<br />
therefore no surprise that the critical legal scholarship also concerned itself with the<br />
judiciary and its position in the legal system. Legal protection and the administration of<br />
justice were also under serious scrutiny in the 1960s and 1970s, and the judiciary was<br />
also subjected <strong>to</strong> reform. The criticism of the judiciary was another aspect which points<br />
out the connection between critical legal scholarship in theory and in practice, as well as<br />
the difference in the perception of law between the critical and traditional scholars.<br />
The radical criticism of the courts began in the 1960s. Ensio Hii<strong>to</strong>nen had already<br />
pointed out in his study in the 1950s that the courts had adjudicated political cases and<br />
followed the hegemony of the political right in their decisions. 242 In 1965, Kaarle Makkonen<br />
had argued that adjudication was often irrational. 243 The criticism of the courts<br />
238 Kaarlo Tuori, Hallin<strong>to</strong>koneis<strong>to</strong>n ja hallin<strong>to</strong>-oikeuden kehityksestä, Oikeus 2/1975, 29–43; Kaarlo<br />
Tuori, Om förvaltningsapparatens och förvaltningsrättens utveckling, HfKS 1976, 24–40.<br />
239 Kaarlo Tuori, Hallin<strong>to</strong>-oikeustieteen tutkimuskohteesta, Oikeus 1/1976, 3–16.<br />
240 See Max Oker-Blom (ed.), Millaiseksi perustuslaki? (<strong>Helsinki</strong>: Kirjayhtymä 1976).<br />
241 Lars D. Eriksson, Författningsdebattens nuläge, Oikeus 3/1977, 167; Antero Jyränki, perusoikeusuudistuksen<br />
tavoitteet, Oikeus 4/1977, 191–192. The reform was <strong>fi</strong>nally completed in 2000 when the new<br />
Constitution came in<strong>to</strong> effect. The powers of the parliament were strengthened whereas the powers of the<br />
President were restricted, protection of the rights of the citizen was also improved, and the protection of<br />
private property remained strong. The reform was thus a moderate compromise between contradic<strong>to</strong>ry<br />
opinions.<br />
242 Ensio Hii<strong>to</strong>nen, Vääryyttä oikeuden valekaavussa (Hyvinkää: Vapaa Pohjola 1953).<br />
243 Makkonen 1965, supra n. 30.<br />
294
was intensi<strong>fi</strong>ed by the controversial suits in the 1960s, the most famous being the case<br />
against the author Hannu Salama for blasphemy, 244 and the case against Erik Schüller in<br />
the late 1960s for inciting conscientious objection. 245 Although the cases had their<br />
greatest influence on criminal law, they also contributed <strong>to</strong> the critical argument that the<br />
courts preserved the conservative social order. Thus, when the critique of legal reasoning<br />
and scholarship was already intense in the late 1960s, Eriksson argued that the independence<br />
of the judiciary was simply a myth. On the contrary, he wrote, courts were<br />
political organs using political power, and in a class society they protected the interests<br />
of the ruling class. The political nature of the courts had <strong>to</strong> be recognized and be placed<br />
under democratic control. 246 Since the critical thought identi<strong>fi</strong>ed legal institutions with<br />
the social power structures in this respect as well, it was radical regarding both perception<br />
and its political implications.<br />
The beginning of the 1970s marked a dramatic turn. As we saw earlier, the studies<br />
by Blom revealed a serious lack of con<strong>fi</strong>dence in the courts, 247 and, as on so many other<br />
occasions, the President gave a further impetus <strong>to</strong> the clamor over the judiciary. In his<br />
birthday interview, he pronounced that since the courts often made political decisions,<br />
there was a need <strong>to</strong> reconsider the concept of the separation of state powers. 248 Although<br />
the need <strong>to</strong> reform the judiciary was recognized, 249 President Kekkonen’s comment was<br />
the one the legal profession was most hostile about. The President was criticized for<br />
endorsing ideological elements and exaggerating the political power of the courts. 250<br />
The critical scholars, on the other hand, chided the criticism as political, saying that the<br />
question was about increasing democracy. 251 The politicization of the courts, nevertheless,<br />
became a major legal problem of the 1970s. 252<br />
The critical scholars promoted radical arguments with respect <strong>to</strong> the courts <strong>to</strong>o, arguing<br />
that the judges should be elected either by a popular vote or by the parliament for<br />
<strong>fi</strong>xed periods, all social classes should be fairly represented in the judiciary, and the<br />
parliament should regularly moni<strong>to</strong>r judicial practice. 253 The argument for subjecting<br />
the courts <strong>to</strong> democratic control was in a stark contradiction <strong>to</strong> the Finnish legal system,<br />
which was based on the independence of the judiciary. The idea behind the radical al-<br />
244 Kekkonen 1998, supra n. 6 at 117.<br />
245 See Ilpo Halonen & Matti Mykkänen (ed.), Tapaus Schüller (<strong>Helsinki</strong>: Tammi 1970). In February 11 th<br />
1969, Erik Schüller publicly encouraged those whose objection <strong>to</strong> military service was denied <strong>to</strong> continue<br />
their objection, and was charged with inciting conscientious objection, which was a crime back then.<br />
Later, nearly two thousand people signed a similar petition which was presented <strong>to</strong> the police. The trial of<br />
the objec<strong>to</strong>rs then turned in<strong>to</strong> a farce. The signa<strong>to</strong>ries included Lars D. Eriksson and Kaarlo Tuori.<br />
246 Eriksson 1969, supra n. 208 at 18–24, 40.<br />
247 Blom 1970, supra n. 60.<br />
248 Kekkonen 1970, supra n. 72 at xv–xviii, xx–xxi.<br />
249 Martti Miettinen, Oikeudenhoi<strong>to</strong>mme uudistusten <strong>to</strong>teuttamisesta, LM 1970, 1005–1010.<br />
250 Kastari 1970, supra n. 78 at 996–1004; Vikatmaa 1970, supra n. 79 at 1016–1019; Paavo Rautkallio,<br />
Suomalainen poliisi ─ yksi meistä, LM 1970, 1023–1027.<br />
251 Helge Rontu, Epäpoliittisuuden harhakuvat, Contra 1/1971, 21.<br />
252 See, e.g., Oikeuslai<strong>to</strong>ksen politisoiminen: Mitä se on, miten se vaikuttaa ja mitkä ovat sen hyvät ja<br />
huonot puolet? (Porvoo: Werner Söderström osakeyhtiö 1972).<br />
253 Eriksson 1969, supra n. at 218 at 40; Lars D. Eriksson, Tuomioistuinten poliittinen valta, 76–77, in<br />
Karapuu (ed.) 1970, supra n. 46 at 66–77; Blom 1970, supra n. 61 at 9–10.<br />
295
teration in the basis of the judiciary was <strong>to</strong> create a kind of people’s court, however infamous<br />
the concept, and hence <strong>to</strong> bring the administration of justice closer <strong>to</strong> the people.<br />
The concept was obviously very radical, but it raised discussion about the judiciary,<br />
the legal system and democracy, and reflected the polemical atmosphere of the 1970s as<br />
well as the socialist rhe<strong>to</strong>ric of the criticism.<br />
The administration of justice was also an aspect in which the critical scholars<br />
could invoke their arguments in practice. The reform of the judiciary was initiated in the<br />
early 1970s and its <strong>fi</strong>rst report was published in 1971. The report was quite radical, proposing<br />
major changes which followed the radical arguments. The committee consisted<br />
of three members, Olavi Heinonen, Aulis Aarnio, and Henrik Grönqvist, all members of<br />
the Socialist Democratic Party. Heinonen (b. 1938) and Aarnio (b. 1937) were young<br />
legal scholars with leftist tendencies. Although Aarnio defended more traditional views<br />
in the debates on legal scholarship in the late 1960s, he was one of the interviewers of<br />
the President and endorsed progressive views on legal scholarship, despite not wanting<br />
<strong>to</strong> turn it in<strong>to</strong> politics. Heinonen also sympathized with the alternative views and was<br />
active in criticizing criminal law, as will be seen later. Grönqvist was not active in the<br />
debates on legal scholarship.<br />
Critical legal scholarship perspectives were obvious in the report of the committee<br />
for the reform of the judiciary. Its assumption was that since the courts were part of the<br />
society and wielded considerable social power, they should reflect social change. According<br />
<strong>to</strong> the committee, the courts should be impartial in individual cases but in general<br />
conform <strong>to</strong> the current social politics. It then proposed that the judges should serve<br />
for a <strong>fi</strong>xed period and should be appointed on political terms <strong>to</strong> represent the political<br />
power relations. 254 A critical perception of the courts was written in<strong>to</strong> the report by reviewing<br />
their development in the his<strong>to</strong>rical and social context and then relating this process<br />
<strong>to</strong> the contemporary circumstances. The judiciary was reviewed in a general context,<br />
considering its social role and function, and little attention was given <strong>to</strong> technical<br />
issues and details.<br />
The report ignited a heated response defending the traditional judiciary, 255 and the<br />
legal profession at large condemned the report. The conservative part of the profession<br />
wanted reforms <strong>to</strong>o, but they wanted <strong>to</strong> maintain the structure of the judiciary. The majority<br />
of the lawyers and judges as well as traditional legal scholars thus criticized the<br />
report for its ideological statements without due veracity and for trashing the basis of<br />
Finnish democracy and the administration of justice. 256 The committee attacked such<br />
254 Oikeuslai<strong>to</strong>s<strong>to</strong>imikunnan mietintö 1971: B 112, 3–20, 30–31, 38–39, 68–70, 77.<br />
255 The criticism of both the report and the radical criticism of the judiciary, as well as some of their defenses,<br />
are gathered in Erkki Havansi (ed.), Tuomioistuinuudistus ─ millainen? (Porvoo: Werner Söderström<br />
osakeyhtiö 1972).<br />
256 Suomen Lakimiesliit<strong>to</strong> r.y:n lausun<strong>to</strong>, 18–19, 22–25, in Havansi (ed.) 1972, supra n. 255 at 18–31;<br />
Suomalainen Lakimiesyhdistys r.y:n lausun<strong>to</strong>, 34–43, in Havansi (ed.) 1972, id. at 32–51; Suomen Asianajajalii<strong>to</strong>n<br />
lausun<strong>to</strong>, 79–85, in Havansi (ed.) 1972, id. at 76–89; Suomen Tuomarien Liit<strong>to</strong> r.y:n lausun<strong>to</strong>,<br />
92–98, in Havansi (ed.) 1972, id. at 252 at 90–98; Erkki Havansi, Oikeuslai<strong>to</strong>s<strong>to</strong>imikunnan mietinnön<br />
kritiikkiä, LM 1972, 1–35; Veli Merikoski, Oikeuslai<strong>to</strong>suudistus, näkökohtia, LM 1972, 435–446. Arti-<br />
296
fundamental aspects of the Finnish legal system that its arguments were not acceptable<br />
<strong>to</strong> the traditional profession <strong>to</strong> any degree. Criticism of legal scholarship on the pages of<br />
law journals was often mostly ignored or scorned. When the criticism appeared in the<br />
of<strong>fi</strong>cial report of a reform committee however, a widespread and hostile response followed,<br />
which illuminates the general opinion of the legal profession about the critical<br />
legal scholarship. The profession at large was mostly conservative with respect <strong>to</strong> the<br />
fundamental elements of the legal system, and considered the critical scholars as being<br />
<strong>to</strong>o radical.<br />
The general rebuttal of the report only meant more fuel on the flames of the critical<br />
scholars. Aarnio, who was a member of the committee, criticized the critics of the<br />
report for their conservative notions. 257 Aarnio was most likely upset because of the<br />
harsh criticism the committee had received. Otherwise the critical scholars often turned<br />
the questions of law in<strong>to</strong> questions of politics, because their general perspective on the<br />
legal problems was political. In this vein, Niklas Bruun argued that the book in which<br />
the criticism of the report was published was a bourgeois response intended <strong>to</strong> halt the<br />
reform. 258 The elements of ideology and politics were always crucial <strong>to</strong> the critical legal<br />
discourse. It sought <strong>to</strong> demonstrate the conservative nature of traditional scholarship<br />
and it reflected the fundamental difference in perception between traditional and critical<br />
approach.<br />
The difference in perspective between traditional and critical scholars was pervasive.<br />
The critical perspective saw politics everywhere because there were structural relations<br />
between class conflict, the state, law, the courts, and the legal profession. Thus,<br />
the critical scholars argued, there was no impartial justice since it was always biased.<br />
The traditional view disagreed and had faith in the impartiality of justice. For instance,<br />
the professor of constitutional law, Paavo Kastari, noted that Finnish courts did not<br />
make political decisions and that judicial discretion was restricted. The courts in socialist<br />
countries on the other hand, he argued, did not provide very desirable examples. 259<br />
The traditionalists therefore wanted <strong>to</strong> preserve the fundamental structure of the<br />
courts. 260<br />
The question of the political nature of the courts, however, appeared completely<br />
different in a non-traditional perspective. To the critical scholars, since the courts were<br />
part of the social structures, they were always preconditioned by them and reproduced<br />
the inequalities within them. 261 Judicial decision-making required social knowledge,<br />
cles by Havansi and Merikoski are also included in Havansi (ed.) 1972, supra n. 255 at 105–135, 136–<br />
146.<br />
257 Aulis Aarnio, Oikeuslai<strong>to</strong>s<strong>to</strong>imikunnan “his<strong>to</strong>rialliset erehdykset”, DL 1972, 246.<br />
258 Niklas Bruun, Tuomioistuinuudistus ─ millainen? [book review], JFT 1973,74–75.<br />
259 Kastari 1971, supra n. 126 at 422–436.<br />
260 See, e.g., Paavo Salervo, Tuomioistuimet valtiokoneis<strong>to</strong>ssa, in Oker-Blom (ed.) 1976, supra n. 240 at<br />
145–173.<br />
261 Raimo Blom, Tuomioistuimien oikeudenkäytön ─ erityisesti rikostuomioiden tasapuolisuuden ─ tutkimus:<br />
Tutkimussuuntausten sekundaarianalyysi (Tampere: Tampereen yliopis<strong>to</strong>n sosiologian ja sosiaalipsykologian<br />
lai<strong>to</strong>sten tutkimuksia 1973), 1–3, 9–10, 32–34, 74, 103–105.<br />
297
unawareness of which meant conservatism. 262 Indeed, the independence of the judiciary<br />
was a myth for the critical scholars. According <strong>to</strong> Backman, the courts were not and<br />
could not have been apolitical. Therefore there could only be discussion about disclosing<br />
their already political nature and hence being open about it and change it, not simply<br />
about the politicization of the courts. 263 The dialogue between the traditional and the<br />
critical scholars was dif<strong>fi</strong>cult because their perceptions differed. Whereas the former<br />
opined that judicial decision-making should not be politicized and values should not<br />
have any place in legal scholarship, the latter argued that since politics and values were<br />
already present in them, the question was completely different.<br />
Despite the sharp controversies that marked the early 1970s, the debates on the judiciary<br />
also faded as the decade approached its end. The radical notions about democratizing<br />
and politicizing the administration of justice faded, and even though the efforts <strong>to</strong><br />
change the courts continued, the arguments became more moderate. The question was<br />
brought up in the reform of the Constitution, but the committee wanted <strong>to</strong> preserve the<br />
independence of the courts. 264 Kivivuori had argued that the judicial process could be<br />
democratized through increasing the role of the lay members of the courts in 1974, 265<br />
and by the end of the decade even Heinonen wrote that broadening the social basis of<br />
the recruitment of the judges as well as educating them more about society might be<br />
appropriate in the effort. 266<br />
The courts were an obvious target of criticism because of their central position in<br />
the administration of justice. In the radical atmosphere, the courts were regarded as conservative<br />
bastions that guarded and maintained the prevailing social structures. The<br />
connection between criticism of legal reasoning and the judiciary was also obvious. The<br />
critical scholars argued that legal reasoning was ideological and politically biased, and<br />
the courts were the organs which turned law in books in<strong>to</strong> law in action. Here again the<br />
radical scholars attacked the roots of the problem and called for a complete change in<br />
the administration of justice. Their criticism was not merely theory, since they were able<br />
<strong>to</strong> put their critical acclaims forward at the committee for judicial reform. And as was<br />
the case with the reform of the Constitution, the <strong>fi</strong>rst report was greeted with hostility<br />
and the debates waned as the 1970s went on.<br />
262 Klami 1973, supra n. 126 at 1–5, 22–25, 74–75.<br />
263 Eero Backman in Oikeuslai<strong>to</strong>ksen politisoiminen, 1972, supra n. 252 at 86, n. 2.<br />
264 Jyränki 1974, supra n. 225 at 71–76. The committee was unanimous as <strong>to</strong> the independence of the<br />
courts and the judge’s right <strong>to</strong> stay in of<strong>fi</strong>ce. Disagreement arose as <strong>to</strong> whether the parliament should<br />
appoint the judges and have the right <strong>to</strong> supervise the general trends of the courts. The reformers were in<br />
a minority, but their proposals would not have changed the basis of the judiciary radically.<br />
265 Antti Kivivuori, Tuomioistuimet ja kansanvalta, Oikeus 3/1974, 43–46.<br />
266 Olavi Heinonen, Tavoitteena hyvä tuomari vai hyvä tuomioistuin, Oikeus 1/1979, 37–40.<br />
298
3.3 Concluding remarks<br />
The criticism of constitutional law reflected many aspects of the critical legal scholarship<br />
and marked a relationship between legal theory and political practice. Finnish critical<br />
legal scholars were most actively involved in politics and legal reform of the countries<br />
examined here. They were members of reform committees and political parties and<br />
worked for the practical realization of their notions. Criticism of the Constitution and<br />
the judiciary was radical, and the radical proposals found their way in<strong>to</strong> the of<strong>fi</strong>cial reports<br />
on reform. However, despite the efforts, the reforms never occurred as the radicals<br />
envisioned, because reforms are always compromises between conflicting points of<br />
view, and individuals cannot force their proposals through. In any event, the critical<br />
legal scholars created a link between theory and practice, despite whether their actions<br />
were deadly serious or acts of provocation.<br />
The fundamental nature of the critical thought became obvious in this respect. For<br />
critical legal scholars, the Constitution of Finland was based on false premises, establishing<br />
and preserving a capitalist society, but it could have been something else just as<br />
well. Their examinations of the his<strong>to</strong>rical origins of the Constitution and its actual effects<br />
in contemporary society sought <strong>to</strong> demonstrate the inequalities it caused and maintained.<br />
The criticism of the judiciary reflected the same arguments. The radical aspect of<br />
the criticism has been brought up here because it was not simply a few laws that were<br />
criticized but rather the system on which the Constitution and every individual law was<br />
based.<br />
The relationship between society and critical legal scholarship was also clear. Although<br />
we should not take everything that was written at face value, it is obvious that the<br />
criticism reflected the radicalism of the 1960s and the militant leftism of the 1970s, and<br />
since there were scholars who criticized both jurisprudence and constitutional matters,<br />
we can conclude that the critical legal scholarship in general reflected the radical thinking.<br />
To an extent, without depreciating the importance of theory, critical legal scholarship<br />
was an expression of the leftist counter-culture that criticized the traditional system<br />
of social norms, values, and life-style as well as the economic system.<br />
The criticism of constitutional law was much more radical and fundamental in Finland<br />
than in the United States and Scandinavia. Although the American and Scandinavian<br />
critical scholars advanced similar arguments in their general criticism of law, they<br />
did not grasp the whole idea of the Constitution in the way the Finnish scholars did.<br />
Furthermore, they were not as detailed and concrete in their criticism of the judiciary.<br />
Although the same arguments appeared in the criticism of judicial decision-making in<br />
the United States and Scandinavia, the Finnish scholars were the most explicit and radical<br />
in their critique of the courts and the urge <strong>to</strong> reform them. Constitutional law and the<br />
judiciary also highlight the very political nature of the critical legal scholarship in Finland.<br />
The scholars used openly political, Marxist, and socialist rhe<strong>to</strong>ric in their criticism,<br />
and on some occasions even tried <strong>to</strong> realize them in practice. Because of the social<br />
299
polarization, the legacy of the civil war, and the conservative nature of the legal profession,<br />
Finnish critical legal scholars made a radical break from the tradition and attacked<br />
the very foundations of the legal system.<br />
Criticism of constitutional law went hand in hand with critical legal scholarship. It<br />
began in the latter half of the 1960s and reached its climax at the turn of the decade, and<br />
the interview with the President gave an additional boost <strong>to</strong> the debates. Critical scholars<br />
attacked the Constitution, constitutional scholarship and the judiciary, which were<br />
seen as ideological and conservative. The critical scholars opined that the Constitution<br />
was based on social values which traditional scholarship neglected and therefore protected.<br />
Thus, a reconsideration of the system was needed. Besides illuminating several<br />
aspects of the critical legal scholarship, the criticism of constitutional law also reflected<br />
several important aspects of critical and alternative scholarship. Some of the particular<br />
<strong>to</strong>pics will be examined in the following sections.<br />
4 Alternative criminal law scholarship, 1965─1979<br />
Scholarship on criminal law and criminology in particular were important elements in<br />
the development of the alternative legal scholarship in the 1960s. They also formed a<br />
gateway through which sociological jurisprudence could enter legal scholarship as well<br />
as a clear connection between Finnish and Scandinavian legal scholarship. Research on<br />
crime was in close contact with society and had a productive perspective on law in action.<br />
It proved <strong>to</strong> be an excellent <strong>fi</strong>eld for alternative and critical scholars <strong>to</strong> argue that<br />
law discriminated against people of the lower social class and preserved the existing<br />
social structure. Furthermore, crime and its control in particular were hotly debated social<br />
concerns. Crime thus provided relevant issues where alternative methods were especially<br />
important. Although critical criminology was a major fac<strong>to</strong>r in the transformation<br />
of Finnish legal scholarship in the 1960s and 1970s and shared many aspects<br />
with critical legal scholarship, it is important <strong>to</strong> note that the alternative criminologists<br />
of these decades represented the alternative front that preceded and surrounded the critical<br />
enterprise, rather than critical legal scholars.<br />
Criminology had made its way in<strong>to</strong> Scandinavian legal scholarship during the<br />
twentieth century, establishing a secure position in the 1960s. 267 In Finland, <strong>to</strong>o, the<br />
tradition of criminology was weak before the 1950s when scholars began <strong>to</strong> reorient<br />
criminological research <strong>to</strong> modern society. During the <strong>fi</strong>rst part of the 1960s, Finnish<br />
scholars followed the example of their Scandinavian colleagues and became interested<br />
in criminology. The rising interest was seen in establishment of the Criminological Re-<br />
267 See chapter IV section 4 above. The roots of Scandinavian criminology, of course, go beyond the<br />
1960s, but only then did it become an established discipline.<br />
300
search Institute in 1963. 268 By the mid-decade, criminological research was about <strong>to</strong><br />
become one of the liveliest forms of legal literature in Finland.<br />
The rise of criminology in the 1960s had considerable effects on the conception of<br />
crime as a social phenomenon and on the methods of researching it, as well as on criminal<br />
policy. However, alternative criminology was also a consequence of the changes in<br />
politics and social discourse on the rights and legal security of the citizen. Criminology<br />
encouraged discussions on reforming criminal policy, but social activism also encouraged<br />
more research on the social causes of crime and criminal policy. In any event, critical<br />
criminology supported the ideas of alternative legal scholarship, as well as the reconsideration<br />
of the causes of crime and the premises of criminal policy.<br />
Critical criminology concerned various aspects of crime and its control and provided<br />
alternatives for policy change. Studies on self-reported crime sought <strong>to</strong> reveal the<br />
criminality that was not reported in of<strong>fi</strong>cial statistics. The purpose was <strong>to</strong> point out that<br />
people were not neatly divided in<strong>to</strong> criminals and law-abiding citizens, but that delinquency<br />
was more common than usually assumed. 269 Studies on detention institutions<br />
also sought <strong>to</strong> demonstrate that incarceration was not especially effective in controlling<br />
crime and recidivism. Inkeri Anttila (1916–2013), an important <strong>fi</strong>gure in the Finnish<br />
criminology, investigated juvenile detention centers, 270 and the sociologist Paavo Uusitalo<br />
concluded that prisons were not especially effective from the perspective of general<br />
deterrence. 271 The implications of these arguments were that criminals were <strong>to</strong> be<br />
treated humanely and that harsh penalties did not have the deterrent effect they were<br />
assumed <strong>to</strong> have.<br />
The need <strong>to</strong> reform the administration of criminal justice and criminal policy was a<br />
hotly debated <strong>to</strong>pic <strong>to</strong> which the recent research and the interest in Swedish reforms<br />
gave impetus. In the mid-1960s, the rights of the accused, particularly concerning pretrial<br />
investigation, were debated. 272 According <strong>to</strong> the traditional view, this was an aspect<br />
of “Americanization”. There was rather a need for “common sense in dealing with criminals”<br />
and the police should not be demonized in their work against crime. 273 The conservative<br />
response then stimulated the debate on the improvement of the rights of the<br />
accused. The majority of the profession recognized the need <strong>to</strong> improve the rights, but<br />
the measures <strong>to</strong> take were open <strong>to</strong> question. 274 The majority of the legal profession was<br />
268 Kangas (ed.) 1998, supra n. 20 at 338–339. The Criminological Research Institute was transformed<br />
in<strong>to</strong> the National Research Institute of Legal Policy in 1974.<br />
269 Inkeri Anttila, Piilorikollisuus ja ilmirikollisuus, LM 1966, 412–421; Inkeri Anttila & Ris<strong>to</strong> Jaakkola,<br />
Piiloon jäävä rikollisuus (<strong>Helsinki</strong>: Kansalaiskasvatuksen keskus, Monistesarja 12/1966). In general on<br />
the studies on self-reported crime and their influence on criminology and criminal policy in the Nordic<br />
Countries, see Janne Kivivuori, Discovery of Hidden Crime: Self-Report Delinquency Surveys in Criminal<br />
Policy Context (Oxford: Oxford University Press 2011), 126–150.<br />
270 Inkeri Anttila, Tarvitaanko nuorille rikoksentekijöille uusia lai<strong>to</strong>smuo<strong>to</strong>ja? LM 1965, 678–687.<br />
271 Paavo Uusitalo, Vankila ja työsiir<strong>to</strong>la rangaistuksena (<strong>Helsinki</strong>: KK:n kirjapaino 1968), 140–150.<br />
272 Val<strong>to</strong> Riekkinen, Syytetty ja hänen asemansa, LM 1964, 1077–1082; Timo Tuominen, Näkökohtia<br />
syytetyn oikeusturvasta, LM 1965, 456–466,<br />
273 Allan Viranko, Tervettä järkeä rikollisten käsittelyyn, LM 1965, 628–629.<br />
274 Matti Ylöstalo, Lisänäkökohtia syytetyn oikeusturvasta, LM 1965, 831–834; Matti Ylöstalo, Tervettä<br />
järkeä rikollisten käsittelyyn? LM 1965, 919–920; Matti Olavi Norri, Syytetyn asemasta ja puolustukses-<br />
301
aware of the need <strong>to</strong> improve the status of the accused during the criminal process, but<br />
there was no general willingness <strong>to</strong> make the system more lenient or provide the accused<br />
with the opportunity <strong>to</strong> forestall the investigation. The radical social thought,<br />
however, turned heavily against the contemporary system in the latter half of the 1960s,<br />
when criticism of institutionalization and treatment ideology became severe. 275 Whereas<br />
the legal professionals were talking about procedural rights, critical social opinion was<br />
turning against the system. Thus, the basis and direction of criminal policy turned out <strong>to</strong><br />
be one of the most important <strong>to</strong>pics of the period.<br />
Alternative criminologists of the late 1960s criticized treatment ideology and harsh<br />
penalties. 276 Anttila argued that instead of having a very punitive criminal system, it<br />
would be more ef<strong>fi</strong>cient <strong>to</strong> make people aware of the criminal norms. 277 The most traditional<br />
scholars, such as Bruno Salmiala, were against the reform efforts because of their<br />
possible harmful effects on society. 278 Alternative scholars, however, argued that criminalization<br />
and harsh punishments were major problems of Finnish criminal policy. The<br />
basis of the reforms should therefore be in the conception of crime as a social phenomenon,<br />
emanating mostly from the social structures. 279 The sociologist Patrik Törnudd<br />
depicted the spirit of alternative criminology well in explaining that traditional criminology<br />
could not explain the causes of crime. The interpretation of social phenomena,<br />
such as crime, was dependent on values and policies which thus had <strong>to</strong> be included in<br />
criminological research. 280 He also de<strong>fi</strong>ned the purpose of the alternative criminal policy,<br />
which, he declared, should aim at minimizing the costs and damage caused by criminality<br />
and allocate them in a just and equitable fashion in society. 281 The juxtaposition<br />
between traditional and alternative views greatly concerned the theoretical as well as<br />
political orientations, the difference between the perspectives being all-encompassing.<br />
At the beginning of the 1970s, comprehensive criticism of the criminal policy was<br />
widespread, 282 and various problems were tackled in criminological studies. Scholars<br />
reconsidered the conception of criminal guilt, 283 examined the development and status<br />
ta, LM 1965, 1026–1028; Paavo Soukka, Oikeudenkäynnin julkisuus Englannissa ja Suomessa, LM 1966,<br />
39–59.<br />
275 See Eriksson (ed.) 1967, supra n. 45.<br />
276 Inkeri Anttila, Konservativ och radikal kriminologi i Norden, NTfK 1967, 239–245.<br />
277 Inkeri Anttila, Rikosoikeudellisen normijärjestelmän tiedotusongelmia, LM 1967, 39–47.<br />
278 See, e.g., Bruno A. Salmiala, Onko pätevää aihetta luopua nykyisestä vapausrangaistujärjestelmästä ja<br />
siirtyä yksilajiseen vapausrangaistukseen? DL 1965, 437–464 [opposing the abandoning of individual<br />
institutionalization in favor of a single form of incarceration]; Bruno A. Salmiala, Jumalan pilkka rikoksena,<br />
DL 1965, 57–59, 164–165 [opposing the decriminalization of crimes against religion]; Bruno A.<br />
Salmiala, Onko rikoslainsäädäntömme uudistamisen suunta oikea? DL 1966, 146–149 [opposing the<br />
recent trend <strong>to</strong> reforming the criminal justice system].<br />
279 Olavi Heinonen, Kriminaalipolitiikka muuttuvassa yhteiskunnassa, Contra 2/1969, 42–43; Lauri Kerosuo,<br />
Paha pois juurineen, Contra 2/1969, 39–41; Hannu Tapani Klami, Kriminaalipolitiikan perusongelmista,<br />
Contra 4/1969, 19–23.<br />
280 Patrik Törnudd, Syytutkimus ─ kriminologian umpikuja, Sosiologia 3/1969, 119–125.<br />
281 Id. at 126.<br />
282 Kaarlo Helasvuo, Ken oikeutta maassa saa: Kriminaalipolitiikan tarkastelua (Jyväskylä: K.J. Gummerus<br />
1969).<br />
283 Inkeri Anttila, Syyllisyysvastuuta kohti, LM 1969, 625–648.<br />
302
of offences in of<strong>fi</strong>ce 284 as well as crimes against religion, 285 and analyzed the rules<br />
against abortion with the intention of clarifying and liberalizing the regulations. 286 The<br />
new criminology was closely related <strong>to</strong> criminal policy because the scholars opined that<br />
criminological data ought <strong>to</strong> be used in legislation. 287 The politicization of scholarship<br />
was obvious. As Jyrki Tala argued, the division between politics and research was unrealistic,<br />
and since the Finnish criminal policy was hopelessly outdated, alternative and<br />
reformist scholarship was needed <strong>to</strong> change it. 288 Alternative criminology was scholarship<br />
for the society of the future, and it progressed along with the criticism of criminal<br />
policy. It sought <strong>to</strong> provide data for reform by pointing out the de<strong>fi</strong>ciencies of the system<br />
and that it failed <strong>to</strong> meet the social reality. Alternative scholars argued that values<br />
and policies were always part of research, and thus politics and scholarship were inherently<br />
connected in the alternative scholarship. Despite the social and political orientation<br />
of research and the new perspectives on crime and law, alternative criminology was<br />
not after a complete re-make of the system, seeking rather <strong>to</strong> modify it.<br />
An important political issue in which the scholars could also participate was the<br />
isolation of dangerous criminals, 289 which, according <strong>to</strong> the alternative scholars, was an<br />
expression of the brutal criminal system and the fact that Finland had the highest incarceration<br />
rate in Nordic Countries. The critics argued that the contemporary system was<br />
arbitrary 290 and caused institutionalization amongst the offenders. 291 They argued further<br />
that isolation followed from the old conception of the criminal as insane, which,<br />
however, was against the reformist spirit. 292 The new conception of crime and criminals<br />
emphasized social structures as the cause of crime. In this vein, criminals were <strong>to</strong> be<br />
treated as normal human beings in need of guidance rather than treatment, not considered<br />
as abnormal and therefore hospitalized. The new concept of crime had its effects<br />
on criminal law scholarship and politics.<br />
The concepts of crime and criminal policy were changing in the 1970s. Raimo<br />
Lahti, a young legal scholar and an enthusiast proponent of legal sociology and criminology,<br />
argued that since criminal policy should aim at general democratization of society,<br />
social policy measures would be the most appropriate way of tackling criminal pol-<br />
284 Paavo Uusitalo, White Collar Crimes and Status Selectivity in the Law Enforcement System (<strong>Helsinki</strong>:<br />
Helsingin yliopis<strong>to</strong>n sosiologian lai<strong>to</strong>ksen tutkimuksia 1969); Eero Backman, Eräitä näkökohtia rikoslain<br />
40 luvun 20 ja 21 §:ssä säännellyistä virkarikoksista, LM 1970, 486–497.<br />
285 Eero Backman, Uskon<strong>to</strong>rikokset ja eduskunta, LM 1972, 597–609.<br />
286 Raimo Lahti, Raskauden keskeyttämistä koskevista rangaistussäännöksistä de lege ferenda, LM 1969,<br />
417–431.<br />
287 Inkeri Anttila & Patrik Törnudd, Kriminologia (Porvoo: Werner Söderström Osakeyhtiö 1970), 203–<br />
227.<br />
288 Jyrki Tala, Tutkimuksen ja politiikan suhteista, Sosiologia 1/1971, 44–46.<br />
289 The criticism and reform of the system of preventive institution in the 1970s is examined in Heikki<br />
Pihlajamäki, Pakkolai<strong>to</strong>kseen eristäminen 1971–1986 (<strong>Helsinki</strong>: Oikeuspoliittisen tutkimuslai<strong>to</strong>ksen<br />
julkaisuja 1987).<br />
290 Jacob Söderman, Förbrytare på burk, JFT 1967, 399–402.<br />
291 Olavi Heinonen & Paul Perovuo, Vaarallisten rikoksenuusijain valikoituminen, JFT 1969, 443.<br />
292 Inkeri Anttila, Vaaralliset vaarat<strong>to</strong>miksi, LM 1971, 444.<br />
303
icy. 293 The idea of “social policy as the best criminal policy” was, of course, much older,<br />
but in Finland it was not seriously advanced until the radicalism and alternative<br />
scholarship of the 1960s. During the early 1970s, it became a standard argument of the<br />
alternative scholars who canonized the thesis that criminal policy should aim at minimizing<br />
the costs and damage of crime and allocating them equitably in society. 294 Traditional<br />
scholars such as Havansi criticized the new conception because of its many ambiguities,<br />
295 but the concept nonetheless became stronger in Finland and also attracted<br />
international interest. 296<br />
Criminology became an established discipline during the 1960s and 1970s. Scholars<br />
noted the rise of the new methodologies and their suitability in dealing with contemporary<br />
problems of crime. Alternative criminology focused on various contemporary<br />
problems and endeavored <strong>to</strong> point out the connection between crime and society on the<br />
one hand and the inappropriateness of the contemporary criminal justice system on the<br />
other. This then led <strong>to</strong> the new concepts of crime and criminality. Criminals were no<br />
longer regarded as insane, but were <strong>to</strong> be unders<strong>to</strong>od in their social context. The changes<br />
in the concepts and methods of scholarship corresponded with the changes in the<br />
general reformist atmosphere of criminal policy, and criminological research was fundamentally<br />
linked <strong>to</strong> politics. Several elements of alternative legal scholarship were thus<br />
obvious in alternative criminology. It applied social science methods, perceived law as a<br />
<strong>to</strong>ol of social control in a particular social context, was open about values, focused on<br />
relevant, contemporary <strong>to</strong>pics, and sought <strong>to</strong> have an effect on politics.<br />
In addition <strong>to</strong> criminology, criminal law scholarship was changing in other ways<br />
as well. Scholars elaborated alternative models of argumentation and interpretation.<br />
Although criminal law adjudication is different as compared <strong>to</strong> private law adjudication,<br />
in that the interpretation of facts and rules does not play as much role, there nevertheless<br />
is discretion, and that is which legal scholars debated in the late 1960s. The margin of<br />
discretion and interpretation and the wide perspective on law and judicial decisionmaking<br />
formed a subject of criminal law scholarship that provided theoretical and political<br />
possibilities.<br />
The change in the scholarly approach <strong>to</strong> criminal law adjudication was obvious in<br />
the late 1960s. One of the <strong>to</strong>pics that the criminal law scholars debated was whether the<br />
de<strong>fi</strong>nition of petty crime ought <strong>to</strong> be in accordance with the legislation or according <strong>to</strong> a<br />
case-speci<strong>fi</strong>c appreciation. The formalist interpretation was that those crimes were <strong>to</strong> be<br />
considered as petty in which the maximum penalty was six months of incarceration at<br />
293 Raimo Lahti, Rikollisuudesta johtuvien kustannusten vähentämisestä ja jakamisesta: Kriminaalipolitiikan<br />
tavoitteiden ja keinojen tarkastelua, II Oikeustiede ─ Jurisprudentia 221, 223–228, 236–254 (1972).<br />
294 Anttila & Törnudd 1970, supra n. 287 at 181–191; Olavi Heinonen, Varkautta koskevat uudet säännökset,<br />
DL 1972, 461–462; Inkeri Anttila, Olavi Heinonen, Pekka Koskinen, Raimo Lahti, Rikollisuus<br />
ongelmana: Kriminaalipolitiikan perusteet (<strong>Helsinki</strong>: Tammi 1974), 33–45.<br />
295 Erkki Havansi, Rikollisuus ongelmana [book review], LM 1974, 850–851.<br />
296 Raimo Lahti, Rikollisuus tutkimuksen ja päätöksenteon kohteena, LM 1976, 537–538.<br />
304
most. 297 There was no general agreement on this, even among traditional scholars, 298<br />
and the question was discussed in the 1960s. Some legal scholars thought that the formalist<br />
de<strong>fi</strong>nition was insensitive <strong>to</strong> special characteristics of the misdemeanor, and<br />
therefore the question ought <strong>to</strong> be determined individually in each case, without however<br />
compromising the rule of law. 299 The question was not completely about traditional<br />
and alternative approaches, since even some traditional scholars endorsed case-speci<strong>fi</strong>c<br />
de<strong>fi</strong>nition. 300 Nevertheless, the polemic reveals that scholars of criminal law were distancing<br />
themselves from the formalist, conceptualist tradition and moving <strong>to</strong>ward a<br />
more analytical, or realistic tradition. Traditional scholars often stressed legal certainty<br />
and the verbatim interpretation of the law. The new trend, however, was <strong>to</strong> stress the<br />
circumstances and a more flexible interpretation.<br />
Alternative and critical scholars considered traditional law and legal scholarship<br />
reactionary. Criminal legal scholarship was changing in many ways, and the transformation<br />
did not always require alternative approaches. For instance, conceptualism in<br />
criminal law was criticized because it formalized judicial decision-making and neglected<br />
the unique characteristics of a special situation. 301 Even in criminal law, alternative<br />
scholars began <strong>to</strong> criticize the myth of the judicial decision as a logical deduction. According<br />
<strong>to</strong> Klami, the fact that there was discretion in criminal law adjudication did not,<br />
however, mean that it was supposed <strong>to</strong> be arbitrary. Indeed, more open reasoning would<br />
bring more consistency in<strong>to</strong> it. 302<br />
For the scholars with reformist views, the sensational criminal cases also demonstrated<br />
the outdated nature of the Finnish criminal law. Lahti commented upon the infamous<br />
Schüller case, in which lots of people had signed a petition supporting conscientious<br />
objection and were tried for a crime. Lahti noted that criminal legislation left much<br />
297 Reino Ellilä & Tauno Ellilä, Mikä on vähäpätöinen rikos? Suomen poliisilehti 1967, 397; Reino Ellilä,<br />
Syyttämättä jättäminen ja tuomitsematta jättäminen liikennerikoksista, 60–62, n. 8, in Juhlajulkaisu Tauno<br />
Tirkkonen (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1968), 51–63; Tauno Ellilä, Keskustelua vähäpätöisestä<br />
rikoksesta, LM 1968, 575–578; Tauno Ellilä, Rikosoikeus ja rikosprosessioikeus, LM 1970, 505,<br />
n. 15.<br />
298 See, e.g., the debate between Kurvinen and Honkasalo, which seems <strong>to</strong> have been based on misinterpretation,<br />
since they both endorsed an interpretation according <strong>to</strong> which the de<strong>fi</strong>nition of petty crime was<br />
<strong>to</strong> be made in actual situations. (Pekka Kurvinen, Näkökohtia rikoslain 38 luvun 6 a §:n tulkinnasta, LM<br />
1965, 586; Brynolf Honkasalo, Toisen irtaimen omaisuuden luva<strong>to</strong>nta käyttämistä koskevien lainkohtien<br />
tulkintaa, LM 1965, 966.)<br />
299 Per Lindholm, Till frågan om påföljdseftergift enligt strafflagen, JFT 1968, 549–554; Timo Tuominen,<br />
Eräitä mietteitä rikosoikeuden käsitelainopista ja vähäpätöisen rikoksen käsitteestä, LM 1968, 548–549,<br />
558–561; Olavi Heinonen, Toimenpiteistä luopuminen rikosten seuraamusjärjestelmässä, LM 1970, 661<br />
n. 6.<br />
300 According <strong>to</strong> Lahti, there was no established de<strong>fi</strong>nition of petty crime in the early 1970s. (Raimo Lahti,<br />
Toimenpiteistä luopumisesta rikosten seuraamusjärjestelmässä: Erityisesti silmällä pitäen tuomitsematta<br />
jättämistä (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1974), 364.) Legal practice, however, supported the<br />
case-speci<strong>fi</strong>c de<strong>fi</strong>nition. (Id. at 492.)<br />
301 Tuominen 1968, supra n. 299 at 548–549, 552–553; Timo Tuominen, Vielä vähäpätöisestä vähäisen,<br />
LM 1968, 757–758; Pekka Koskinen, Syyteoikeuden vanhentumisesta I: Jatketun rikoksen vanhentumisesta,<br />
LM 1968, 379–380; Raimo Lahti, Ns. yhdistetystä rikoksesta, DL 1969, 481.<br />
302 Hannu Tapani Klami, Logiikka ja oikeusturva: Lainanalogiaprobleemasta, DL 1968, 379–381, 386;<br />
Hannu Tapani Klami, Nulla poena sine lege ─ mietteitä rikosoikeudellisesta tyyppipakosta, LM 1969,<br />
178–188.<br />
305
oom for interpretation and discretion which created the possibility of political and value-based<br />
decision-making. 303 The crimes against religion were considered <strong>to</strong> conflict<br />
with freedom of expression and religion. 304 The argument was that decisions were out<br />
of <strong>to</strong>uch with the contemporary society if the decision-making did not pay attention <strong>to</strong><br />
social considerations. Alternative scholars pointed out that conceptualism made criminal<br />
adjudication <strong>to</strong>o formalist and hindered reasonable solutions.<br />
With respect <strong>to</strong> legal reasoning, alternative scholarship endorsed realistic and casespeci<strong>fi</strong>c<br />
argumentation. The new, practical de<strong>fi</strong>nition of petty crime, for instance, suited<br />
alternative scholarship because it enabled the judge <strong>to</strong> consider social circumstances.<br />
The criticism also facilitated making the standards of sentencing practice more humane.<br />
Anttila and Heinonen argued that the appropriate penalty in the cases of petty crimes<br />
would be a <strong>fi</strong>ne or in exceptional cases a very short prison sentence. 305 Scholars endorsing<br />
an alternative or social perspective on sentencing criticized individualist sentences<br />
based on treatment ideology, arguing that the punishment in general should be measured<br />
against the level of guilt and the seriousness of the crime, 306 and that the actual social<br />
consequences of punishments should also be taken in<strong>to</strong> account. 307 The criticism of individual<br />
prevention and treatment ideology, and the argument for sentencing according<br />
<strong>to</strong> the gravity of the crime followed the criminological observations that the less the<br />
punishment imposed on the person, the less the possibility of recidivism. 308 The increased<br />
interest in sociological research directed attention <strong>to</strong>wards the social consequences<br />
of the crime on the one hand and the punishment on the other. Alternative<br />
scholars criticized the conceptualist tradition in criminal law for its neglect of the social<br />
facts and focusing simply on the letter of the law. They thought that even criminal adjudication<br />
could be more open <strong>to</strong> society while maintaining its special character as a guarantee<br />
of legalism and the rule of law.<br />
The sociological approach and the criticism of criminal law adjudication were obvious<br />
in the studies concerning the equality of sentencing. Raimo Blom’s treatises were<br />
the best-known in the regard. He had pointed out the lack of national con<strong>fi</strong>dence in the<br />
administration of justice, 309 and argued that social status had an impact on sentencing. 310<br />
He continued the survey studies on criminal sentencing, but did not reveal any signi<strong>fi</strong>cant<br />
variation based on the social status of the accused. Nevertheless, he argued that<br />
there was a certain amount of discrimination at every level of the administration of<br />
303 Raimo Lahti, Rikoslain 16 luvun 8 ja 9 §:stä, erityisesti niiden uudistamisesta, JFT 1969, 492–494.<br />
304 P.O. Träskman, Korkein oikeus taidearvostelijana? Oikeus 2/1974, 40–42.<br />
305 Inkeri Anttila & Olavi Heinonen, Rikos ja seuraamus: Rikosoikeuden perusteet (<strong>Helsinki</strong>: Tammi<br />
1974) 32–39, 177 (1971).<br />
306 Inkeri Anttila, Rangaistuksen valitseminen lainsäätäjän ja tuomarin tehtävänä, LM 1973, 381–382;<br />
Olavi Heinonen, Rangaistuslajin valinta, LM 1976, 140–143.<br />
307 Anttila & Heinonen 1971, supra n. 305 at 136; Anttila & Törnudd 1970, supra n. 287 at 246–249;<br />
Heinonen 1970, supra n. 299 at 664; Lahti 1972, supra n. 293 at 284–291.<br />
308 Klaus Mäkelä, Om straffens verkningar, VI Oikeustiede ─ Jurisprudentia 235, 249 (1975).<br />
309 Blom 1970, supra n. 60 at 33–34. [Thesis]<br />
310 Blom 1970, supra n. 61 at 6–7. [Lectio]<br />
306
criminal justice, which then accumulated in<strong>to</strong> a more serious inequality. 311 He also argued<br />
that the selectivity of the criminal process followed and preserved the existing<br />
social structures and power relations. 312 Another sociologist, Klaus Mäkelä also pointed<br />
out the correlation between social status and punishment. 313<br />
These studies marked the increasing interest in sociological and behavioral research<br />
on the judiciary, 314 but they also articulated the criticism of selectivity and discrimination<br />
in the criminal process. Critical legal scholars argued that legal reasoning<br />
was uncertain and arbitrary and that the courts were biased against the lower social classes.<br />
These arguments were also advanced in the studies on criminal adjudication in<br />
which alternative methods enabled the scholars <strong>to</strong> go beyond the written decisions and<br />
analyze the real motives behind them. This literature was, of course, speculative at best<br />
but it did direct the focus <strong>to</strong> important <strong>to</strong>pics, such as the motivation of court decisions,<br />
the rights of the citizen, and equality before the law. These were also the general considerations<br />
of alternative scholarship on criminal law. Alternative scholars endeavored<br />
<strong>to</strong> demonstrate that criminal law played an important social role and therefore had <strong>to</strong> be<br />
unders<strong>to</strong>od in its social context.<br />
Criminal law scholarship underwent some signi<strong>fi</strong>cant changes in the 1970s. The<br />
social aspects of crime, the connection between scholarship and politics, and the new<br />
tradition of criminal law which emphasized general deterrence and the moral building<br />
function became more pronounced. The pioneer of the sociological movement, Inkeri<br />
Anttila, and her students wrote a series of text books on criminal law which reflected<br />
the new trends during the decade. Books dealing with the basics of criminal law, 315 various<br />
crimes, 316 and the basics of criminal policy 317 were published, and a general introduction<br />
<strong>to</strong> all of the issues 318 appeared as well. All these books naturally reflected the<br />
opinions of their authors and the alternative, reformist thought in criminal law in general.<br />
Individual prevention and treatment ideology was condemned and general deterrence<br />
and the moral building function of criminal law was emphasized. The social basis<br />
of crime was articulated, and criminal policy was linked <strong>to</strong> social policy. 319 The new<br />
311 Raimo Blom, Tuomioistuimien <strong>to</strong>iminnan puolueet<strong>to</strong>muus rikosasioissa: Tutkimusmenetelmä ja tuomioperusjoukon<br />
erittelyyn perustuvia tuloksia (Tampere: Tampereen yliopis<strong>to</strong>n tutkimuslai<strong>to</strong>s 1970), 30,<br />
40–41.<br />
312 Blom 1973, supra n. 261 at 101–105.<br />
313 Klaus Mäkelä, Oikeuskäytäntö ja yleinen oikeustajunta, LM 1969, 75, 85.<br />
314 Blom frequently referred <strong>to</strong> American political jurisprudence as well as <strong>to</strong> Scandinavian literature on<br />
the <strong>to</strong>pic. One of the most influential references was Gunnar Olofsson’s master’s thesis (Gunnar Olofsson,<br />
Status och dom i tra<strong>fi</strong>kmål ─ en beskrivning av 506 tra<strong>fi</strong>kbrottslingar jämte en analys av<br />
domsskillnaderna, särskilt med tanke på statusfak<strong>to</strong>rer (Lunds Universitet: Sociologiska Institutionen<br />
1965), see chapter IV section 4.2 above), which Blom cited as an authoritative study. (See, e.g., Blom<br />
1970, supra n. 60 at 49 n. 9; Blom 1970, supra n. 311 at 11; Blom 1973, supra n. 261 at 78.)<br />
315 Anttila & Heinonen 1971, supra n. 305.<br />
316 Inkeri Anttila & Olavi Heinonen, Rikosten lajit: Rikosoikeuden erityisen osan perusteet (<strong>Helsinki</strong>:<br />
Tammi 1972).<br />
317 Anttila; Heinonen; Koskinen; Lahti 1974, supra n. 294.<br />
318 Inkeri Anttila & Olavi Heinonen, Rikosoikeus ja kriminaalipolitiikka (<strong>Helsinki</strong>: Tammi 1977).<br />
319 See id. at 30–86.<br />
307
trends that the liberal thought and the alternative scholars had supported were clari<strong>fi</strong>ed<br />
and made explicit.<br />
Alternative scholarship was making its way in<strong>to</strong> mainstream jurisprudence, and<br />
the basis of criminal law scholarship was changing <strong>to</strong> some extent. Although traditional<br />
professors did not like Anttila’s liberal, sociologically based lectures, they were apparently<br />
quite popular among law students. 320 Furthermore, Juha Vikatmaa greeted the new<br />
text books, with which Anttila had played an important role, for updating the studies of<br />
criminal law warmly, praising the books for being progressive in a realist sense and not<br />
radical. 321 By the end of the decade, the new books had made their way in<strong>to</strong> the requirements<br />
of the law degree. 322 Criminal law scholarship did change, but no radical<br />
alteration of its basis occurred. For instance, the new text books reflected the critical and<br />
reformist social thought without being radical. They were critical of the tradition but<br />
kept the criticism within reasonable limits, which is what concerned the change in criminal<br />
law scholarship in general. Criminological research and the social perspective<br />
gained more prominence, and concepts were analyzed more speci<strong>fi</strong>cally by paying attention<br />
<strong>to</strong> the particular circumstances of actual cases. The conceptual tradition was<br />
widely abandoned, if it even existed in the 1960s.<br />
Despite the fact that alternative scholarship was vic<strong>to</strong>rious in the 1970s, critical<br />
scholarship remained on the margins of criminal law scholarship. Since the reformers of<br />
criminal scholarship and policy were not critical in a radical sense, the critical legal<br />
scholars sometimes noted the lack of reformist potential in the alternative scholarship<br />
and thus criticized the “critical”, alternative school of thought. According <strong>to</strong> Eriksson,<br />
the new criminology was utilitarian and functionalist because it saw crime as a necessary<br />
part of society, abandoned the concept of the criminal as abnormal, and sought <strong>to</strong><br />
humanize criminal policy. Marxist criminology, on the other hand, perceived crime as a<br />
reflection of the capitalist mode of production, the aim being <strong>to</strong> change the structures of<br />
society, not simply criminal policy. 323 Klaus Mäkelä also noted that the recent criticism<br />
of criminal policy had focused on decriminalization and humanization of the policy<br />
without considering the purposes informing these measures. Crime, however, occurred<br />
mostly within the lower social classes, not between these and the upper classes. There<br />
was thus a need <strong>to</strong> reconsider the criminal policy measures in a wider context and sometimes<br />
contemplate whether new forms of criminalization would be necessary <strong>to</strong> regulate<br />
the economy. 324 Per Ole Träskman also stressed the connection between economic<br />
structure and criminality and the social construction of crime which followed from it. 325<br />
The perspective on crime became more critical when the Marxist element was<br />
added <strong>to</strong> it. Here the focus was more on the way the criminal justice system reproduced<br />
320 Korpiola 2010, supra n. 86 at 220.<br />
321 Juha Vikatmaa, Rikos ja seuraamus [book review], LM 1971, 537–539; Juha Vikatmaa, Rikosten lajit<br />
[book review], LM 1972, 964–966.<br />
322 Oikeustieteellisen tiedekunnan opin<strong>to</strong>-opas 1977─1978 (Helsingin yliopis<strong>to</strong> 1977), 58.<br />
323 Lars D. Eriksson, Radikal kriminologi och marxistisk kriminologi, Oikeus 1/1973, 27–32.<br />
324 Klaus Mäkelä, Straffrättssystemets samhälleliga uppgifter, Sosiologia 1973, 3–15.<br />
325 P.O. Träskman, Samhällets produktionssätt och brottsligheten, Oikeus 4/1974, 17–24.<br />
308
the prevailing structures than on the methods of controlling and minimizing crime and<br />
its costs. The point of the Marxist arguments was that alternative criminology had focused<br />
on crime as a social phenomenon but ignored reconsideration of the society that<br />
produced it. Eriksson was a hard-core Marxist and therefore endorsed a criminology<br />
that would seek <strong>to</strong> change the social structures, whereas Mäkelä wanted <strong>to</strong> analyze the<br />
causes of criminal control and consider other measures than the “alternatives” that had<br />
been promoted during the previous decade. Träskman encouraged research on the de<strong>fi</strong>nitions<br />
of crime and on the dynamic interplay between the controllers and the controlled.<br />
The general trend in the 1970s was <strong>to</strong> change the of<strong>fi</strong>cial course of the system,<br />
but the more critical insights emerged when the interest in Marxism arose. It is important<br />
<strong>to</strong> note that the criminologists and “alternative” criminal law scholars were not<br />
critical scholars in the sense of this study, but rather represented the broader transformation<br />
of Finnish legal scholarship. The more critical notions on crime and criminal<br />
law aimed at changing the basis of society and the criminal system rather than simply<br />
the criminal law.<br />
Although critical notions on criminal law were rare, the alternative and the sociological<br />
view on crime were becoming widespread. There were differences of opinion,<br />
nevertheless. Around the mid-1970s, Backman and Lahti elaborated theories for the<br />
study of crime, both of which were based on different, albeit sociological theories. In<br />
his doc<strong>to</strong>ral thesis, Lahti combined traditional legal scholarship with the recent trends in<br />
critical scholarship, sociology of law, and alternative criminology. The predominant<br />
element was <strong>to</strong> understand the purposes of law in their his<strong>to</strong>rical and social context. 326<br />
Backman provided another theory that bore a close resemblance <strong>to</strong> that of Lahti but with<br />
a Marxist character. Essential for him was <strong>to</strong> study the connection between law, the<br />
state, and the society that surrounded them. 327 He thought that social conflicts and controversies<br />
were also important in the his<strong>to</strong>ry of criminal law. 328 Although theoretically<br />
different, the purpose of the scholarship was political, since it sought <strong>to</strong> understand the<br />
contemporary situation and provide data for change. Since crime was seen as a fundamental<br />
part of society in the alternative theory, doctrinal analysis was considered insuf<strong>fi</strong>cient<br />
for a thorough understanding of the law. Social understanding was important for<br />
the alternative criminal law scholarship of the 1970s although there were variations in<br />
the perspective and purposes of the scholarship.<br />
Although a unique effort at its time, Backman’s Marxist theory of crime also had<br />
its problems. Klami criticized Backman for not de<strong>fi</strong>ning his theory clearly enough, 329<br />
and Träskman noted that he had not applied his theory <strong>to</strong> an actual research. 330 Backman’s<br />
book was of<strong>fi</strong>cially the <strong>fi</strong>rst part and the second volume was supposed <strong>to</strong> follow.<br />
However, it never came. Marxist legal scholarship was dif<strong>fi</strong>cult because of the ambigui-<br />
326 Lahti 1974, supra n. 300 at 1–41.<br />
327 Backman 1976, supra n. 168 at 14–26.<br />
328 Eero Backman, Rikosoikeus yhteiskunnallisen kehityksen kuvastajana: Huomioita feodaalisesta rikosoikeudesta,<br />
VIII Oikeustiede ─ Jurisprudentia 5, 9–13 (1976).<br />
329 Hannu Tapani Klami, Rikoslaki ja yhteiskunta [book review], LM 1976, 654–656.<br />
330 P.O. Träskman, Straffrätten och samhället, Oikeus 4/1977, 258–259.<br />
309
ty of the authentic literature on law and the various possibilities of interpretation that<br />
followed. As noted in the previous chapter concerning Scandinavian scholarship, Marxist<br />
scholars elaborated various theories and often disagreed on what were the most essential<br />
aspects. Criminal law was not the most important <strong>to</strong>pic for Marxist scholars, but<br />
there were nevertheless efforts <strong>to</strong> provide general theories on it both in Finland and in<br />
Sweden.<br />
In the early 1970s, when the criticism of the criminal system had been going on<br />
for a while and alternative criminal law scholarship was at the <strong>to</strong>p of its career, the government<br />
decided <strong>to</strong> reform the criminal law completely. The reform was initiated in<br />
1972 and naturally attracted a lot of attention among scholars of criminal law, who both<br />
worked on the reform committee and commented on its work. The reform of the criminal<br />
law was a part of the more extensive legal reforms of the 1970s that sought <strong>to</strong> modernize<br />
the legal system of Finland.<br />
Criticism of the criminal law reform began at an early stage, and scholars stressed<br />
the various ways in which they thought the work had gone wrong. A couple of partial<br />
reforms had been conducted before the full reform, and there were critical notions regarding<br />
the measures already implemented and the direction of the forthcoming ones.<br />
Kauko Aromaa noted that the emphasis should be more on decriminalization and humanization<br />
than there had been thus far, 331 and Backman, commenting on labor crime,<br />
argued that the proposed reforms did not pay due attention <strong>to</strong> the social realities behind<br />
the law. 332 Marxist legal scholars were sometimes a bit more ambitious about the goals.<br />
Eriksson argued that mass criminality could be abolished through abandoning capitalism,<br />
and the concept of criminality ought <strong>to</strong> be rede<strong>fi</strong>ned. 333 Helge Rontu criticized the<br />
moderate steps the reform had taken. 334 Since criminal law was an important part of the<br />
legal system, its reform was not insigni<strong>fi</strong>cant. The legal scholars who endorsed alternative<br />
or critical insights also emphasized these aspects of the reform, pointing out the<br />
disparity between the reform and society, or calling for more thorough changes.<br />
The <strong>to</strong>tal reform of the criminal law <strong>to</strong>ok a <strong>fi</strong>rst major step in 1976 when the reform<br />
committee published its <strong>fi</strong>rst report. 335 Alternative legal scholars had a considerable<br />
position on the committee, as was evident in its work. Those included were Antti<br />
Kivivuori, Inkeri Anttila, Raimo Blom, Olavi Heinonen, Klaus Helminen, Mikko<br />
Kämäräinen, Klaus Mäkelä, and Patrik Törnudd. As is obvious, there were four alternative<br />
legal scholars, two of whom, Kivivuori and Blom, were also critical, and Heinonen<br />
had proposed radical changes in the judiciary while working for the reform committee.<br />
In addition, Törnudd and Mäkelä were sociologists, promoting alternative insights. Alternative<br />
legal scholarship was not simply academic action, but it was also socially influential<br />
and provided opportunities for the scholars <strong>to</strong> participate in governmental jobs,<br />
331 Aromaa 1972, supra n. 115 at 44–46.<br />
332 Eero Backman, Työrikos<strong>to</strong>imikunnan I mietinnön esittelyä ja arviointia, Oikeus 4/1973, 34–40.<br />
333 Eriksson 1973, supra n. 323 at 32.<br />
334 Helge Rontu, Rangaistusjärjestelmän uudistus, Oikeus 2/1975, 15.<br />
335 Rikosoikeuskomitean mietintö 1976:72.<br />
310
the best example being Antti Kivivuori, who worked as the chief of law drafting from<br />
the beginning of the 1970s.<br />
Alternative legal scholarship had achieved an influential position in criminal law<br />
in the mid-1970s, as the scholars sat on the committee. They influenced the report and<br />
the direction of the reform considerably. They wrote in the report that crime was a social<br />
phenomenon, and that the goals and policies that the criminal law was <strong>to</strong> promote<br />
had <strong>to</strong> be analyzed in the context of reform. They rebutted treatment ideology and individual<br />
prevention and emphasized the importance of social policy in crime prevention.<br />
Furthermore, they wrote, criminal sanctions should intervene in the rights of the criminal<br />
as little as possible considering the situation. 336 The arguments that the alternative<br />
scholars had highlighted since the mid-1960s had found their way in<strong>to</strong> the pages of an<br />
of<strong>fi</strong>cial report of the government. Criminal law in Finland was about <strong>to</strong> take several<br />
steps <strong>to</strong>wards modernization.<br />
The publication of the report was an interesting <strong>to</strong>pic for the legal profession, not<br />
just for alternative scholars although they obviously were especially interested in it because<br />
their scholarship was often politically oriented. 337 Eriksson, who was known for<br />
his radical insights, criticized the committee for focusing on liberal ideals and not analyzing<br />
the structure of society critically. Therefore, he argued, the draft was <strong>to</strong>o moderate.<br />
338 Backman and Takala criticized the committee for not considering criminal law as<br />
an elementary part of the state in its his<strong>to</strong>rical and social context. 339 Jaakkola and<br />
Träskman noted that the reform most likely would not have decreased the number of<br />
inmates. 340 Raimo Lahti, who mostly was satis<strong>fi</strong>ed with the sociological perspective of<br />
the committee, noted that it had not paid due attention <strong>to</strong> social policy and decriminalization.<br />
341 The criticism quite naturally followed the scholarly insights of the commenta<strong>to</strong>rs.<br />
The more critical scholars argued that the committee had ignored the analysis of<br />
the social structures while dealing with criminal law. Their emphasis in this regard was<br />
more thoroughgoing social change because they seemed <strong>to</strong> have opined that law alone<br />
could not bring much change. In general, since the reform was a part of the wider reconsideration<br />
of the legal system, alternative scholars stressed the need <strong>to</strong> see it in the context<br />
of the humanization and democratization of society at large.<br />
The reform was obviously not a simple task and many conflicting opinions had <strong>to</strong><br />
be balanced while making it. Kivivuori, who was the chairman of the committee, noted<br />
this while defending the work of the committee, and criticized Eriksson for not making<br />
any constructive suggestions about how <strong>to</strong> conduct the reform. 342 Törnudd also defended<br />
the work of the committee by noting that the awareness of the relationship between<br />
336 Id. at 3–6, 38–60, 62–67.<br />
337 The issue of Oikeus 2/1977 was dedicated <strong>to</strong> reviewing the report.<br />
338 Lars D. Eriksson, Straffrättskommitténs ana<strong>to</strong>mi, Oikeus 2/1977, 72–79.<br />
339 Eero Backman & Hannu Takala, Rikosoikeus, yhteiskunta ja rikosoikeuskomitean yhteiskuntakäsitys,<br />
Oikeus 2/1977, 86, 89–92.<br />
340 Ris<strong>to</strong> Jaakkola & P.O. Träskman, Rikosoikeuskomitean rikoskatalogi, Oikeus 2/1977, 84.<br />
341 Raimo Lahti, Rikosoikeuskomitean kriminalisointeja koskevat ehdotukset, LM 1978, 809, 823–824.<br />
342 Antti Kivivuori, Eräs luen<strong>to</strong> rikoslakimietinnöstä, Oikeus 3/1977, 156–159.<br />
311
crime and society had increased during the recent years and had been taken in<strong>to</strong> account<br />
in the work, even if disagreement arose as <strong>to</strong> the nature of the relation. 343 On the other<br />
hand, Blom, who was the most radical representative on the committee, had left a dissenting<br />
opinion in the report criticizing its super<strong>fi</strong>cial his<strong>to</strong>rical analysis and its neglect<br />
of the class conflict and criminal law as a protec<strong>to</strong>r of the status quo. 344 There was of<br />
course much more disagreement as <strong>to</strong> the details of the reform, but the fundamental<br />
difference was in the perception of crime as a social phenomenon. Critical legal scholars<br />
usually argued that criminal law was a reactionary fac<strong>to</strong>r in society and the trend <strong>to</strong> humanize<br />
it was simply another apology for the social structures and their preservation.<br />
Since the purpose of the critical legal scholarship was <strong>to</strong> go beyond the law <strong>to</strong> see its<br />
ultimate motivation, the critical scholars were not pleased with a reform that was in<br />
many ways a considerable change.<br />
In many respects, the reform of the criminal law conformed <strong>to</strong> the progressive debates<br />
of the 1960s and 1970s, and thus also <strong>to</strong> the alternative legal scholarship on criminal<br />
law. To the legal scholars who endorsed or sympathized with these, the reform set<br />
out good guidelines on which <strong>to</strong> build the future. 345 The same also concerned the reform<br />
of imprisonment. 346 However, the traditional profession was not as convinced about the<br />
direction of the reform as many scholars were. For instance, the Finnish Bar Association<br />
thought that the report on the reform was one-sided and overstated in many ways, since<br />
criminal law was supposed <strong>to</strong> be a relatively conservative branch of law. Therefore, a<br />
partial reform might have been better than a <strong>to</strong>tal one. 347 Although the progressive spirit<br />
was strong in society, the legal profession in general was still conservative. The traditional<br />
profession wanted <strong>to</strong> maintain the fundamental characteristics of the legal system<br />
and, even if it realized the need for reforms, it always insisted on moderate and cautious<br />
progress. The alternative and the more progressive sides of the profession were manifested<br />
in the activities of the Association of Democratic Lawyers. The legal profession<br />
in general was not particularly enthusiastic about social radicalism, which is precisely<br />
what the alternative scholars attacked.<br />
The reform of the criminal law aptly represented the alternative spirit of the 1970s.<br />
It was not a simple triumphal march of the alternative legal scholars although it conformed<br />
<strong>to</strong> their arguments, but a result of varying impulses and conflicting arguments.<br />
348 Nevertheless, it conformed closely <strong>to</strong> the alternative scholarship that sought <strong>to</strong><br />
343 Patrik Törnudd, Rikoslakiuudistus ja periaatemietintö, Oikeus 3/1977, 163.<br />
344 Rikosoikeuskomitean mietintö 1976:72, 37, 41–42. Backman and Takala referred <strong>to</strong> Blom’s dissent in<br />
their criticism. It was, of course, explained in the report that it had <strong>to</strong> settle on super<strong>fi</strong>cial his<strong>to</strong>rical analysis<br />
because of the extent of the subject and the ambiguity of its interpretations. (Rikosoikeuskomitean<br />
mietintö 1976:72, 13.)<br />
345 Pekka Koskinen, Rikosoikeuden viimeaikaisista uudistuksista ja kehitysnäkymistä I–II, DL 1979, 83–<br />
95, 185–189.<br />
346 Pekka Koskinen & Raimo Lahti, Vapausrangaistusjärjestelmän uudistus (Turku: Turun ylipis<strong>to</strong>n julkisoikeuden<br />
lai<strong>to</strong>s, Rikos- ja prosessioikeuden julkaisusarja B n:o 2 1977).<br />
347 Rikoslainsäädännön kokonaisvaltainen perusuudistus? [Asianajajalii<strong>to</strong>n lausun<strong>to</strong>] DL 1978, 31–38.<br />
348 Jukka Kekkonen argues that it is <strong>to</strong>o simplistic <strong>to</strong> see the reforms of the Finnish criminal policy as a<br />
direct outcome of the scholarship and politics of the 1960s, and pursues a broader perspective on the<br />
312
perceive crime as a social phenomenon and <strong>to</strong> provide measures for minimizing the<br />
costs and damage caused by crime and distribute them justly and equally in society.<br />
Data on alternative criminology was applied in the reform in order <strong>to</strong> justify and motivate<br />
the reforms, which reflected the general critical arguments of the time and aimed at<br />
making punishment simpler and milder, terminating the effects of treatment ideology<br />
and individual prevention, and establishing a criminal system that would be based on<br />
general deterrence and equal and humane treatment of criminals. Much disagreement<br />
arose as <strong>to</strong> the details of the reform, and critical legal scholars were dissatis<strong>fi</strong>ed with its<br />
moderation, but in general there was relative unanimity about its goals. The reform was<br />
not <strong>fi</strong>nished until the beginning of the twenty-<strong>fi</strong>rst century and by then the idea of <strong>to</strong>tality<br />
had been abandoned and the reform was executed in parts.<br />
Just as in the United States and Scandinavia, criminal law proved <strong>to</strong> be an arena in<br />
which scholars could use the methods of social sciences and present a critique of society<br />
and legal practice in Finland as well. And as in Scandinavia, criminal law was also one<br />
of the <strong>fi</strong>rst branches of law in which the alternative and critical insights began <strong>to</strong> acquire<br />
a strong position in Finland in the 1960s. Alternative criminology criticized the old concepts<br />
of criminality, criminal law, and criminal policy, and began <strong>to</strong> pile up data for a<br />
change of thought. It sought <strong>to</strong> demonstrate that crime was more common than was usually<br />
assumed, emanating mostly from social structures, and that criminals often were<br />
not deviant people. Therefore, the alternative scholars argued, criminal policy ought <strong>to</strong><br />
be seen as a part of general social policy, which should promote social equality and democracy.<br />
Criminal law scholarship was also an area in which the arguments for alternative<br />
legal scholarship had signi<strong>fi</strong>cance in the practice of research, in which scholarship<br />
and politics were closely connected. And because much of the alternative legal scholarship<br />
conformed <strong>to</strong> the general progressive social thought, it had practical relevance.<br />
Many of the insights of alternative criminology followed the social criticism, but they<br />
also helped <strong>to</strong> de<strong>fi</strong>ne and conceptualize it.<br />
Criminal law scholarship changed <strong>to</strong> an extent in the 1970s in Finland. Sociology<br />
of law and alternative criminology achieved an established position in Scandinavian<br />
legal scholarship in the 1960s when they also began <strong>to</strong> have a considerable influence in<br />
Finland. Because the alternative scholarship <strong>fi</strong>tted well with the critical spirit of the<br />
1960s, it was easy <strong>to</strong> adapt <strong>to</strong> the new circumstances. Nevertheless, alternative criminologists<br />
were not critical scholars, representing the non-radical, alternative thought of<br />
the 1960s and 1970s. During the 1960s, criminological data was used <strong>to</strong> support the<br />
criticism of society. The end of the decade was a time of active social debate and criticism,<br />
and the alternative criminologists found a place within the discourse. By the<br />
1970s, the new currents of criminal law scholarship were popular among students and<br />
young scholars, new text books emerged in addition <strong>to</strong> the massive amount of literature,<br />
and the alternative scholarship had political signi<strong>fi</strong>cance. The paradigm of criminal law<br />
change in criminal policy. (Jukka Kekkonen, Suomalaisen kriminaalipolitiikan menestystarina ─ tarua vai<br />
<strong>to</strong>tta? in Jukka Kekkonen, Muu<strong>to</strong>s ja jatkuvuus: Näköaloja oikeushis<strong>to</strong>riaan (<strong>Helsinki</strong>: Talentum 2003),<br />
182–196.)<br />
313
scholarship did change, even if not radically. Although the change of paradigm was<br />
most obvious in criminal law, other branches, and even legal education, experienced<br />
similar changes. The following sections should place the rise of the alternative legal<br />
scholarship in the 1970s in a larger context.<br />
5 Alternative legal scholarship on private law in the 1970s<br />
5.1 General remarks<br />
In this section I will analyze the role of alternative and critical legal scholarship on particular<br />
branches of private law; labor law, family law, and contract law respectively. My<br />
analysis is rather brief and will not provide a thorough account of the changes that occurred.<br />
Rather, I will focus on critical notions and alternative scholarship and provide<br />
sketches of the changes. In addition, legislation in these areas was extensively reformed<br />
during the 1960s and 1970s, but since my focus is on academic legal scholarship, I will<br />
not consider the legislative change. Since the 1970s marked a serious number of alternative<br />
approaches <strong>to</strong> legal research, 349 a brief account of them will provide insights in<strong>to</strong><br />
the development of alternative scholarship and critical thought on law. My analysis will<br />
further demonstrate that critical legal scholarship was a radical aspect of the transformation<br />
of Finnish legal scholarship in the 1960s and 1970s. Legal scholarship in general<br />
was embracing <strong>to</strong>wards new ideas, and the radical critique, the critical legal scholarship,<br />
was an extreme and a counter-cultural academic manifestation of the times.<br />
Alternative scholarship and criticism of private law were not especially radical.<br />
The trend in this respect was more <strong>to</strong> perceive the problems in a social context and <strong>to</strong><br />
understand the origins and functions of legal rules. Just as was the case in criminal law,<br />
alternative scholarship on private law was not radical criticism of the tradition, but an<br />
alternative <strong>to</strong> traditional scholarship, emphasizing such things as the empirical, social,<br />
and political aspects of scholarship. This was so because radical scholars put their arguments<br />
within a more general criticism of either legal scholarship or constitutional<br />
law. Thus, for instance, freedom of contract was an essential part of critical scholarship<br />
even if it was not especially mentioned. Alternative scholars on contract law noted that<br />
the doctrine on freedom of contract was far more problematic when this was considered<br />
in law in action instead of law in books. In much of the alternative scholarship on private<br />
law, however, the sociological approach and the critique of ideology relating <strong>to</strong> it<br />
revealed several interesting issues that were close <strong>to</strong> the radical critique without however<br />
taking the next step.<br />
349 Kangas (ed.) 1998, supra n. 20, esp. at 187, 195–197, 265, 271, 316, 320, 374, 393, 400.<br />
314
By the early 1970s, there were many young scholars at the university who wanted<br />
a scholarly identity. For one reason or another, the descendants of the 1960s wanted <strong>to</strong><br />
pursue something new in scholarship and adopted an alternative perspective on legal<br />
scholarship. Alternative legal scholars on private law were thus mostly young, leftleaning<br />
scholars who wanted <strong>to</strong> participate in contemporary debates on relevant social<br />
and legal problems, on which their studies mostly focused. These reflected the radical<br />
thought in many respects without however adopting a particularly radical stance on the<br />
law or traditional legal scholarship.<br />
5.2 Labor law<br />
Because critical legal scholarship was essentially Marxist and leftist, labor was obviously<br />
an important <strong>to</strong>pic for it. The industrial working class became more powerful in the<br />
1960s and 1970s and acquired a sizable representation in the parliament. Hence labor<br />
legislation was reformed during these years. As we saw, several work-related issues<br />
were also brought up in the criticism of the Constitution. Scholars argued that political<br />
democracy without industrial democracy was inadequate and called for a reconsideration<br />
of the concept of property in order <strong>to</strong> make the rights of the working class more<br />
ef<strong>fi</strong>cacious. Problems regarding labor and its legal regulation thus pertained <strong>to</strong> the reform<br />
of the Constitution <strong>to</strong> some degree. 350 Industrial democracy was an important part<br />
of acquiring equal rights for the workers, 351 but this required an alternative perspective<br />
on the issue because the traditional, bourgeois perspective was considered <strong>to</strong> dis<strong>to</strong>rt the<br />
perception of reality. 352 In order <strong>to</strong> be effective in fact, workers’ rights required fundamental<br />
changes in the Constitution and society. 353 Labor law had a central position in<br />
critical legal scholarship, but the scholars often thought about the problems in some<br />
other connection.<br />
The rise of critical legal scholarship in the late 1960s contributed <strong>to</strong> the emergence<br />
of structural and critical perspective on the research on labor law. The Marxist emphasis<br />
on the conflict between labor and capital led many scholars <strong>to</strong> criticize the law. Work<br />
accidents, for instance, were considered as structural violence the risk of which was<br />
distributed unequally <strong>to</strong> the workers. 354 Kai Kalima criticized the common notion of<br />
political strikes as illegal, which, he claimed, followed from the fact that they were a<br />
threat <strong>to</strong> the prevailing social order. 355 Vaajala criticized the identi<strong>fi</strong>cation of strikes and<br />
350 See, e.g., Perustuslain uudistaminen. Työväen kulttuuriviikko ─ Jyväskylän talvi 1974.<br />
351 Olavi Sulkunen, Olavi Kämäräinen, Kimmo Kevätsalo, Jukka Sädevirta, Yritysdemokratia ─ demokratia<br />
työelämässä (<strong>Helsinki</strong>: Kansan Sivistystyön Lii<strong>to</strong>n kirjeopis<strong>to</strong> 1973).<br />
352 Jukka Gronow, Yritysdemokratia ja taloudellinen demokratia, Politiikka 1/1970, 82–91.<br />
353 Kimmo Sädevirta, Työ perusoikeutena, 6–8, in Perustuslain uudistaminen 1974, supra n. 350.<br />
354 Matti Lahti, Työtapaturmat ─ onnet<strong>to</strong>muuksia vai rikoksia, Oikeus 1/1972, 46–53.<br />
355 Kai Kalima, Poliittiset työtaistelu<strong>to</strong>imenpiteet ─ työväestön oikeus yhteiskunnalliseen hätävarjeluun?<br />
Oikeus 1/1973, 5–10.<br />
315
lockouts because the latter was an expression of ruling class power. Thus, for example,<br />
salaries should be paid during the lockouts. 356 The alternative perspective of the 1970s<br />
regarded labor problems differently than the traditional perspective, the alternative conception<br />
being that labor problems were not simply questions of law but social problems.<br />
The alternative perspective was needed because, according <strong>to</strong> the critical thought,<br />
traditional legal consciousness mysti<strong>fi</strong>ed and rei<strong>fi</strong>ed labor relations and thus made them<br />
seem different than what they in fact were. 357 While turning the perspective, scholars<br />
argued that restrictions on the right <strong>to</strong> strike were not a solution because they did not<br />
concern the reasons for striking. Rather, the legisla<strong>to</strong>r should apply restrictions on lockouts,<br />
358 and stipulate the right <strong>to</strong> strike and its scope in the Constitution. 359 Even if the<br />
perspective was not radical in the sense that it sought <strong>to</strong> alter the basis of the society or<br />
legal scholarship, it nevertheless drilled down <strong>to</strong> the core of the problem. Alternative<br />
scholarship regarded labor law as a reflection of the society and therefore pursued a<br />
more comprehensive image of it.<br />
A Marxist perspective on labor law also emerged alongside the alternative view.<br />
The most prominent Finnish Marxist labor law scholar was Niklas Bruun, who had already<br />
published noteworthy writings in his mid-twenties, and who was the Finnish contact<br />
person for the Nordic Marxist law journal, Retfaerd. A key <strong>to</strong> his work was the notion<br />
that since labor law had developed in<strong>to</strong> a special branch of law emanating from the<br />
conflict between capital and labor, it concerned special problems and was <strong>to</strong> be examined<br />
in accordance with its special characteristics. 360 The Marxist approach brought a<br />
useful perspective <strong>to</strong> research on labor law, but this did not mean that labor relations<br />
were seen as completely determined by the class conflict, or that there was <strong>to</strong> be a complete<br />
alteration in the structure of labor. As the example of Bruun demonstrates, Marxism<br />
could be applied as constructive criticism of the prevailing law and as a <strong>to</strong>ol for<br />
politically oriented legal scholarship.<br />
Bruun’s studies were alternative legal scholarship, seeking <strong>to</strong> provide alternative<br />
interpretations of the existing system and contemplate the potential for reform. He examined<br />
the right of an employee <strong>to</strong> abstain from work in cases in which the employer<br />
had violated certain regulations. In a realistic and social analysis of the law, he concluded<br />
in favor of the employee in practically every situation. 361 He also analyzed the right<br />
<strong>to</strong> salary of an employee who was willing <strong>to</strong> work during a strike, 362 the problem of<br />
company housing in the context of housing production in Finnish capitalism, 363 and<br />
pointed out why there had <strong>to</strong> be a speci<strong>fi</strong>c consent <strong>to</strong> do overtime at work on every oc-<br />
356 Hannu Vaajala, Työsulun oikeudellisesta asemasta, Oikeus 2/1976, 72–76.<br />
357 Sädevirta 1974, supra n. 353 at 2–3.<br />
358 Vaajala 1976, supra n. 356 at 77.<br />
359 Jorma Saloheimo, Työtaisteluoikeuden perustuslainturvasta, Oikeus 4/1977, 221, 235–239.<br />
360 Niklas Bruun, Arbetsrätt och civilrätt ─ några utvecklingslinjer, Retfærd 1/1976, 32–34.<br />
361 Niklas Bruun, Työntekijän oikeudesta pidättäytyä työstä (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong>n yksityisoikeuden<br />
lai<strong>to</strong>ksen julkaisuja 1975).<br />
362 Niklas Bruun, Om arbetsvillig arbetstagares rätt till lön vid strejk ─ än en gång, JFT 1975, 166–178.<br />
363 Niklas Bruun, Om bostad i anslutning till arbetsförhållande, JFT 1975, 415–463.<br />
316
casion. 364 By analyzing the facts of the matter and the effects of the law realistically,<br />
alternative scholars criticized the prevailing law and legal scholarship and argued for<br />
better protection for the employee. Whereas traditional scholarship focused on concepts<br />
and rules, alternative scholarship examined their social functions and the effects on the<br />
people they concerned.<br />
The alternative approach <strong>to</strong> labor law had become more common in the late 1970s.<br />
Bruun summarized his critical scholarship in his doc<strong>to</strong>ral thesis on the influence of ideology<br />
on collective agreements. He sought <strong>to</strong> demonstrate that the conflicting ideologies<br />
of the labor parties were incorporated in<strong>to</strong> collective agreements, were rei<strong>fi</strong>ed by legal<br />
concepts, influenced the practice of labor law, and were missed by traditional legal<br />
scholarship. 365 The treatise was a particular study on the general argument of critical<br />
legal scholarship that ideologies affected law and created structural limitations on its<br />
application. In the case of collective agreements, Bruun argued, the employer as the<br />
stronger side could create the ideological context and hence prevent change. Therefore,<br />
labor law scholarship had <strong>to</strong> account for the ideological element of law and analyze the<br />
structural and systemic relevance of values in addition <strong>to</strong> open argumentation. 366<br />
The impact of values on law was also evident in the doc<strong>to</strong>ral thesis by Matti Mikkola<br />
who analyzed the terms of unemployment bene<strong>fi</strong>ts from the perspective of values<br />
and policies and argued that they affected the practice of granting bene<strong>fi</strong>ts. Thus, he <strong>to</strong>o<br />
encouraged research on values in order <strong>to</strong> explicate the law in action. 367 This was also a<br />
study on a then relevant social problem, pointing out the inadequacies of traditional legal<br />
scholarship as well as the problems of law in the welfare context. Unemployment<br />
was a pressing problem in the late 1970s, and its handling within the context of the welfare<br />
state, which was also being criticized, was a further problem. The studies by Bruun<br />
and Mikkola, alternative legal research on the labor law issues in the late 1970s, reflected<br />
the critical thought and the political orientation of alternative legal scholarship. They<br />
both encouraged more open research on values, policies, and ideologies, and sought <strong>to</strong><br />
reveal problems relating <strong>to</strong> both legal practice and scholarship.<br />
Alternative legal scholarship was partly work on new social and legal problems relating<br />
<strong>to</strong> the development of the modern welfare state in the 1960s and 1970s as well as<br />
inter-disciplinary scholarship applying new approaches and methods in dealing with<br />
legal problems. Although labor had a central position in the critical thought, there were<br />
not particularly many speci<strong>fi</strong>c critical examinations of it. Critical legal scholars were<br />
more concerned with general problems and their relations <strong>to</strong> labor law, whereas scholars<br />
who wanted <strong>to</strong> pursue a career in the <strong>fi</strong>eld were concerned about more traditional<br />
measures, although from an alternative perspective.<br />
364 Niklas Bruun, Om arbetstagares samtycke till övertidsarbete, JFT 1976, 189–199.<br />
365 Niklas Bruun, Kollektivavtal och rättsideologi: En rättsvetenskaplig studie av de rättsideologiska premisserna<br />
för inlemmandet av kollektivavtalet och kollektiva kampåtgärder i <strong>fi</strong>nsk rättsordning efter år<br />
1924 (<strong>Helsinki</strong>: Juridica 1979).<br />
366 Id. at 369.<br />
367 Matti Mikkola, Työttömyysturvan ehdoista: Oikeustieteellinen tutkimus työttömyyskorvauksen hakijan<br />
asemasta ja oikeussuojasta (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1979).<br />
317
5.3 Family law<br />
Family law provides an interesting perspective on alternative legal scholarship and the<br />
transformation of Finnish legal scholarship in the 1970s in general. Since it was Aarnio’s<br />
major <strong>fi</strong>eld, his analytical hermeneutics had a signi<strong>fi</strong>cant influence on scholarship<br />
in this area. Furthermore, as a young professor in the early 1970s, he established a study<br />
group on law and philosophy, known as “Aarnio’s Circle”, where law students and<br />
young legal scholars discussed legal philosophy and the practices of sociological jurisprudence.<br />
368 Aarnio and Ahti Saarenpää had noted in 1969 that lawyers had lamented<br />
the fact that legal literature was often theoretically oriented even though more practical<br />
research was needed, 369 and the 1970s witnessed several studies on practical problems<br />
and on law in action. 370 Family law thus proved <strong>to</strong> be in a signi<strong>fi</strong>cant position for a realistic<br />
and sociologically oriented legal scholarship.<br />
Part of alternative scholarship was <strong>to</strong> perceive law in action in its social context.<br />
This was evident in much of the alternative scholarship on family law. In an empirical<br />
analysis based on statistics applying <strong>to</strong> typical situations, Rauno Halttunen explored<br />
how inheritance functioned in practice. His study was politically oriented and provided<br />
data for reforms intended <strong>to</strong> modernize law. 371 In an empirical analysis of court decisions<br />
and social functions and the effects of alimony, Markku Helin renounced the use<br />
of the logical syllogism in this area. 372 The studies did not simply systematize and interpret<br />
legal rules, but sought <strong>to</strong> comprehend their functions and effects. Sometimes they<br />
had more of a comprehension purpose, and sometimes they sought <strong>to</strong> have an impact on<br />
law. In any event, they kept apart from traditional scholarship in the endeavor <strong>to</strong> see law<br />
in context.<br />
The new text books also marked the transformation of legal scholarship on family<br />
law. Aarnio wrote a book on wills with the intention of providing a contextualized, realistic<br />
account. He also emphasized the signi<strong>fi</strong>cance of subjective interpretations in practice<br />
and criticized the conceptualist tradition. 373 In a book on cus<strong>to</strong>dy, Ahti Saarenpää,<br />
Heikki Mattila, and Matti Mikkola criticized the traditional text books for their normative<br />
approach, as well as for neglect of social circumstances and their systemic signi<strong>fi</strong>cance<br />
for law. They examined cus<strong>to</strong>dy in its his<strong>to</strong>rical development and discussed its<br />
368 Kangas (ed.) 1998, supra n. 20 at 196–197.<br />
369 Aulis Aarnio & Ahti Saarenpää, Testamenttiasiain käytäntöä, DL 1969, 432–433.<br />
370 Aulis Aarnio & Urpo Kangas, The Family Law Research in Finland during the 1970s (<strong>Helsinki</strong>: Helsingin<br />
yliopis<strong>to</strong>n yksityisoikeuden lai<strong>to</strong>ksen julkaisuja 1978); Kangas (ed.) 1998, supra n. 20 at 306–307,<br />
310–312, 315–316, 320.<br />
371 Rauno Halttunen, Perimysoikeuden laajuudesta: Tutkimus kuolinpesien varallisuudesta ja perillisten<br />
ikärakenteesta, I Oikeustiede ─ Jurisprudentia 195–245 (1971).<br />
372 Markku Helin, Puolisolle avioeron yhteydessä tuomittavasta elatusavusta ─ Tutkimus Helsingin raastuvanoikeuden<br />
käytännöstä, II Oikeustiede ─ Jurisprudentia 131–183 (1/1972).<br />
373 Aulis Aarnio, Jälkisäädökset: Testamenttioikeuden oppikirja (<strong>Helsinki</strong>: Lainopillisen ylioppilastiedekunnan<br />
kustannus<strong>to</strong>imikunta 1972), see esp. at v–vii, 17–19, 48–57. The analysis of the relationship between<br />
social and economic structures and inheritance resembles Marxism.<br />
318
social functions. 374 While the book was a progressive text book applying alternative<br />
approaches on cus<strong>to</strong>dy, 375 <strong>to</strong> radical scholars it merely extended the basis of scholarship<br />
but was traditional in its substance. 376 The book thus reflected several aspects of alternative<br />
legal scholarship, but was not critical in a radical sense. It rather aimed at examining<br />
the his<strong>to</strong>rical origins and social functions of legal institutions in order <strong>to</strong> understand<br />
them, and <strong>to</strong> bring legal scholarship closer <strong>to</strong> social sciences.<br />
Seeking <strong>to</strong> understand law in its social context provided the potential for slightly<br />
more critical arguments. Referring <strong>to</strong> the Marxist conception of society, Mikkola argued<br />
that the western concept of marriage was an economic institution, based on maledominance<br />
and aiming at maintaining social hierarchies, whereas the socialist conception<br />
was based on equality and reciprocal love. 377 In a treatise on the position of illegitimate<br />
children he concluded that the Finnish law was <strong>to</strong>tally outdated and ineffectual.<br />
He argued that the law was structured <strong>to</strong> protect the existing social structures and that<br />
scholarship on it focused on the concepts and neglected the reality behind them. 378 He<br />
also criticized the new legislation on child support because it treated illegitimate children<br />
unequally and did not guarantee public responsibility for taking care of children in<br />
need. 379<br />
The comprehensive account of law in its his<strong>to</strong>rical and socio-economic context<br />
was also used <strong>to</strong> criticize the contemporary legal system. Mikkola used this approach on<br />
some occasions <strong>to</strong> criticize the basis and structure of law. His book on the position of<br />
illegitimate children was a realistic study of empirical data, based on a his<strong>to</strong>rical and<br />
social context, and analyzing values and policies openly. The emphasis on his<strong>to</strong>ry, social<br />
sciences, and values marked a clear connection with alternative and even critical<br />
legal scholarship, but the book was interesting <strong>to</strong> legal scholars with a less critical perspective<br />
as well. 380 Furthermore, he focused on the form, content, and basis of the law<br />
in his criticism of the law on child support. The critique thus emanated from the criticism<br />
of the structure and the basis of law.<br />
The interest in understanding the system was expressed in several ways. Sami<br />
Mahkonen, for instance, studied the his<strong>to</strong>ry of child protection, 381 and Heikki Mattila<br />
compared child law in socialist and Western countries. 382 Mattila’s comparative analysis<br />
aimed at understanding the law in different social structures, which was important because<br />
law reflected its social connections. Comparative studies helped <strong>to</strong> understand the<br />
374 Ahti Saarenpää, Heikki Mattila, Matti Mikkola, Holhous ─ yhteiskunnallinen ongelma: Luen<strong>to</strong>ja holhousoikeudesta<br />
yhteiskunnallisen kontrollin osana (<strong>Helsinki</strong>: Tammi 1972).<br />
375 Matti Savolainen, Holhous [book review], LM 1972, 543–545. Savolainen wrote that in certain respects<br />
the authors could have been more critical.<br />
376 Mäenpää 1972, supra n. 114 at 6.<br />
377 Matti Mikkola, Marxilaisuus ja kristillinen avioliit<strong>to</strong>, Contra 4/1970, 21–23.<br />
378 Matti Mikkola, Avio<strong>to</strong>n lapsi (<strong>Helsinki</strong>: Tammi 1972).<br />
379 Matti Mikkola, Lapsipaketti, Oikeus 1/1973, 39–41.<br />
380 See, e.g., Pirkko-Liisa Aro, Kirja-arvio [Avio<strong>to</strong>n lapsi] LM 1972, 969–971.<br />
381 Sami Mahkonen, Köyhä lapsi: Selvitys lastensuojelulainsäädännön his<strong>to</strong>riasta vuosina 1849─1936<br />
(<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong>n yksityisoikeuden lai<strong>to</strong>ksen julkaisuja 1974).<br />
382 Heikki E.S. Mattila, Kansandemokratia, laki ja lapsi (<strong>Helsinki</strong>: Helsingin yliopis<strong>to</strong>n yksityisoikeuden<br />
lai<strong>to</strong>ksen julkaisuja 1972).<br />
319
differences in law because they could be seen in relation <strong>to</strong> their origins and purposes. It<br />
also brought an aspect of alternative <strong>to</strong> the analysis by presenting socialist legal system<br />
as a possible point of reference. By reviewing socialist law as a possible alternative <strong>to</strong><br />
the Finnish legal system, alternative legal scholars sought <strong>to</strong> demonstrate the humane<br />
aspects of socialism.<br />
The alternative pursuit of understanding and criticizing law was clearly evident in<br />
Markku Helin’s study on divorce law, which analyzed its development as a series of<br />
compromises between the church and the state on the one hand and between conservative<br />
and liberal notions on the other. He then examined the law in action, emphasizing<br />
the purposes and effects of law which, seemed <strong>to</strong> him <strong>to</strong> have been <strong>to</strong> forestall divorce.<br />
383 The obvious purpose of the book was <strong>to</strong> promote liberal notions on marriage<br />
and divorce. It aimed at an egalitarian society where divorce would not have been a taboo,<br />
but where its consequences would have been evenly distributed on every account.<br />
Its methodology, nevertheless, was a manifestation of alternative scholarship. His<strong>to</strong>ry<br />
and society were important, and legal rules were scorned whereas legal practice was<br />
stressed.<br />
As has been demonstrated above, family law was a fertile ground for alternative<br />
legal scholarship in the 1970s, providing important contemporary <strong>to</strong>pics <strong>to</strong> study and on<br />
which <strong>to</strong> take a stand and provide data for reforms. Aarnio’s interest in philosophy and<br />
comprehensive legal scholarship was obviously important in this regard, and he also<br />
managed <strong>to</strong> gather several young scholars who were enthusiastic about alternative approaches<br />
<strong>to</strong> research and liberal about society. The liberalization of the society, the<br />
struggle for equality between the sexes, the pursuit of the welfare state, as well as the<br />
interest in analytical hermeneutics and sociological and critical jurisprudence all paved<br />
the way for family law <strong>to</strong> be a signi<strong>fi</strong>cant area for alternative legal scholarship.<br />
5.4 Contract law<br />
Critical legal scholars did not pay particular attention <strong>to</strong> special problems of contract<br />
law because their criticism of freedom of contract and its consequences for the legal<br />
system was manifested through their general critique of law and legal scholarship. Nevertheless,<br />
contract law scholarship also moved from traditional scholarship and <strong>to</strong>wards<br />
alternative approaches in the 1970s. Whereas the traditional jurisprudence emphasized<br />
the contract as a free, binding instrument which executed the combination of the individual<br />
will of the parties, the alternative approach of the 1970s began <strong>to</strong> see contract as<br />
a social instrument ful<strong>fi</strong>lling social purposes as well.<br />
Alternative scholars were particularly interested in the social aspects of contract<br />
law. In the 1970s, scholarship was changing <strong>to</strong> the extent that the contract was being<br />
383 Markku Helin, Suomalainen avioeroprosessi (<strong>Helsinki</strong>: Tammi 1974).<br />
320
detached from its conceptual background and seen as a social institution, 384 and alternative<br />
scholars began <strong>to</strong> view particular problems in their special contexts. 385 Scandinavian<br />
scholarship had moved <strong>to</strong>wards a more social perspective on contract ever since the<br />
time of realism of the 1930s, and particularly during the postwar years. Finnish jurisprudence,<br />
however, had remained closer <strong>to</strong> the conceptualist tradition. In the 1970s,<br />
Finnish scholars also began <strong>to</strong> take alternative approaches, partly because of the Scandinavian<br />
influences. This meant that contract law was linked <strong>to</strong> its social and economic<br />
background and more flexible methods of argument were applied.<br />
The emphasis on discretion and interpretation followed partly from the increased<br />
use of standard contracts and general clauses in legislation on contractual relations. The<br />
openness of legal rules had been recognized before of course, 386 but the thinking of the<br />
1970s on consumer protection and the weaker party in general attracted the interest of<br />
increasing numbers of scholars of the problem. For instance, Pirkko Aro noted that both<br />
legal practice and the common opinion of the scholars favored the interpretation that<br />
there was a general principle on adjusting contracts even if there was no special provision.<br />
387 General clauses and their interpretation and application were particular problems<br />
of the 1970s. 388 For alternative legal scholars, however, they presented a problem<br />
of promoting social values through law. Thomas Wilhelmsson argued that since general<br />
clauses created an illusion of equality, there was a need <strong>to</strong> elaborate doctrines guaranteeing<br />
that the open clauses would be interpreted in favor of the weaker party. 389 An<br />
aspect of alternative legal scholarship was <strong>to</strong> integrate policies in<strong>to</strong> sociological jurisprudence,<br />
and general clauses on contract law provided an interesting subject. Here one<br />
could analyze the reality between contractual relations and argue for case-speci<strong>fi</strong>c argumentation<br />
in which the needs of the parties would be taken in<strong>to</strong> account while making<br />
sure that the weaker party’s interests were protected.<br />
The changes in society and contractual relations in the 1960s and 1970s changed<br />
the law as well as legal scholarship. The 1970s was a time of much progressive legislation<br />
on contractual relations, 390 and the new problems also encouraged a considerable<br />
amount of research. While comparative studies between Finland and the Soviet Union<br />
were important in this respect as well, 391 most of the alternative research was concerned<br />
384 Lars Erik Taxell, Avtal och rättsskydd (Åbo: Åbo akademi 1972).<br />
385 Thomas Wilhelmsson, Några synpunkter på bensinbranschens dealeravtal, JFT 1973, 375–416.<br />
386 L.E. Taxell, Norm och prövning, JFT 1964, 369–379.<br />
387 Pirkko-Liisa Aro, On tillämpning av SBL § 8 ─ några reflexioner med anledning av et rättsfall, JFT<br />
1974, 179–185.<br />
388 Terttu Apala-Arlander, Yleislausekkeista: Oikeussäännösten muo<strong>to</strong>amiseen ja soveltamiseen liittyviä<br />
kysymyksiä (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1972). The problem of general clauses was, of<br />
course, noted at least in the early 1950s. (T.M. Kivimäki, Yleislausekkeet oikeusvarmuutta heikentävinä<br />
tekijöinä, LM 1950, 302–318.) In this article, however, the concern was their possible harmful impacts on<br />
legal certainty.<br />
389 Thomas Wilhelmsson, Kontrakträttens generalklausuler, Oikeus 2/1975, 12.<br />
390 See, e.g., the proposal for the consumer protection law (Oikeusministeriön lainsäädäntöosas<strong>to</strong>n julkaisu<br />
12/1974).<br />
391 Juha Tolonen, De rättsliga grunderna för licensiering, särskilt i handeln mellan Finland och Sovjetunionen,<br />
JFT 1974, 336–353.<br />
321
with contemporary domestic problems, particularly concerning the changed social circumstances,<br />
standard contracts, and freedom of contract. 392 Consumer protection was of<br />
special importance since such problems had increased, and the <strong>fi</strong>rst consumer protection<br />
law was enacted in 1978. Alternative scholars noted many problems with respect <strong>to</strong><br />
consumer protection, since courts, which were often a very conservative element in society,<br />
had an especially large margin of discretion in this area. 393 Furthermore, Tala<br />
stressed that legislation might have had different influences on different people, and this<br />
was an important aspect <strong>to</strong> take in<strong>to</strong> account. 394 The notion of flexible argumentation<br />
and legal reasoning that would pay particular attention <strong>to</strong> the special needs of the parties<br />
was often elaborated in the late 1970s. It was an outcome of the earlier critical legal<br />
scholarship and of the fact that consumer problems and standard contracts had become<br />
pressing legal problems. In this respect, both sociological jurisprudence and alternative<br />
reasoning suited the case.<br />
The politicization of research and the endeavor <strong>to</strong> have an impact on social reform<br />
were obvious in the alternative legal scholarship, which often aimed <strong>to</strong> explicate the<br />
purposes and functions of law and then <strong>to</strong> provide data with arguments on values and<br />
policies in order <strong>to</strong> influence the possible reforms. Thus, the late 1970s was an obvious<br />
continuation of the critical scholarship of the late 1960s. A notable scholar was Thomas<br />
Wilhelmsson, who encouraged research on the motives of the legisla<strong>to</strong>r. 395 In his doc<strong>to</strong>ral<br />
dissertation, he examined the possible dissonance between the goals and the consequences<br />
of insurance law, concluding that the law left great scope for interpretation<br />
and discretion and that the goals of the legisla<strong>to</strong>r were not often achieved in practice. 396<br />
The purpose here was <strong>to</strong> point out the uncertainty of law and the gap between law in<br />
books and law in action that followed. The emphasis on behavioral and political aspects<br />
of law was also apparent in the study.<br />
Besides the methodological aspects, Wilhelmsson also pointed out that the freedom<br />
of contract was problematic in insurance contracting. According <strong>to</strong> him, if this<br />
freedom was unders<strong>to</strong>od as the power of the individual <strong>to</strong> govern the terms of the contract,<br />
then an individual consumer had no such freedom in contracting with an insurance<br />
company because the terms were determined by the insurer by and large. 397 This then<br />
raised the problem of the actual non-freedom of contract and the possibility of controlling<br />
it. 398 This was also a problem which consumer protection was meant <strong>to</strong> regulate. 399<br />
392 Aulis Aarnio, Sopimusvapaustutkimuksesta, XI Oikeustiede ─ Jurisprudentia 5–8 (1978).<br />
393 Thomas Wilhelmsson, Om tro och heder i <strong>fi</strong>nsk avtalsrätt: Avtalslagens § 33 i rättstillämpningen, XI<br />
Oikeustiede ─ Jurisprudentia 35, 41 (1978).<br />
394 Jyrki Tala, Kuluttajansuoja ja sopimusvapaus: Sopimuskäyttäytymisen ohjaamismenetelmiä kuluttajansuojalainsäädännössä,<br />
XI Oikeustiede ─ Jurisprudentia 159, 252, 304–305 (1978).<br />
395 Thomas Wilhelmsson, Konsumentskyddet, försäkringsrätten och rättsvetenskapen, JFT 1977, 401–<br />
407.<br />
396 Thomas Wilhelmsson, Om styrning av försäkringsvillkor: En rättsvetenskaplig studie angående avtalsfriheten<br />
vid frivillig skadeförsäkring (<strong>Helsinki</strong>: Suomen lakimieslii<strong>to</strong>n kustannus 1977).<br />
397 Id. at 63–65.<br />
398 Jyrki Tala, Vakuutussopimuslain tavoitteet ja vaikutukset, Oikeus 2/1978, 99.<br />
399 Tala 1978, supra n. 394 at 172, 304.<br />
322
Wilhelmsson argued that because of the actual inequality of the parties, freedom of contract<br />
could sometimes function as a guardian of the prevailing power relations. 400 The<br />
problem of freedom of contract was seen as a structural problem relating <strong>to</strong> society and<br />
thus causing further problems for regulating it in action. It was noted that the inequalities<br />
in power <strong>to</strong> negotiate the terms of the contract whittled the content of the freedom<br />
away <strong>to</strong> the extent that in some cases there was no such thing.<br />
Freedom of contract was also brought up in the criticism of the absolute protection<br />
of private property, since it was often unders<strong>to</strong>od that the protection also covered contractual<br />
freedom. 401 Jyränki argued that freedom of contract had escaped the economic<br />
regulation of property, but there ought <strong>to</strong> be consideration of limitations with respect <strong>to</strong><br />
this as well. 402 Critical legal scholars thus brought up the problem of freedom of contract<br />
in their general criticism of legal scholarship as well as in the criticism of the constitutional<br />
protection of private property, whereas alternative scholars paid attention <strong>to</strong> it<br />
in speci<strong>fi</strong>c cases, such as standard contracts. It indeed was an essential element of the<br />
legal system, but it was not in any special position in the critical legal scholarship. Critical<br />
scholars were more interested in general problems, such as jurisprudence, the Constitution,<br />
or criminal law, probably because these were more pressing social problems<br />
and easier <strong>to</strong> relate <strong>to</strong> the social de<strong>fi</strong>ciencies, and the problems of contracts were dealt<br />
with in passing. Moreover, contract law was not the most essential aspect of Finnish<br />
legal thought, because the Finnish legal system was diversi<strong>fi</strong>ed in<strong>to</strong> speci<strong>fi</strong>c branches,<br />
all with their unique characteristics. The most radical scholars attacked the social structure<br />
underlying law, whereas alternative scholars dealt with speci<strong>fi</strong>c problems.<br />
Several interesting problems arose out of contract law in the 1970s that required<br />
new research methodologies and more dynamic argumentation <strong>to</strong> be dealt with appropriately.<br />
Consumer protection, standard contracts, and general clauses formed a fertile<br />
area in which <strong>to</strong> promote new insights. Alternative scholarship on contract law focused<br />
on the contemporary problems and advocated sociological methods in analyzing them.<br />
Problems were <strong>to</strong> be unders<strong>to</strong>od in their social context. Furthermore, scholars often <strong>to</strong>ok<br />
a stand on the potential policy change. Sociological jurisprudence and the protection of<br />
the underdog were the explicit catch-phrases of the alternative scholarship. Hence it was<br />
possible <strong>to</strong> participate in contemporary political debates, promote material equality and<br />
welfare, and point out the usefulness of the alternative scholarship. This was essential<br />
because their expertise and writings could then be used in political decision-making as<br />
well as in legal education.<br />
400 Thomas Wilhelmsson, Sopimusvapaudesta, XI Oikeustiede ─ Jurisprudentia 9, 26–27 (1978).<br />
401 Heikki Kulla, Sopimusvapauden perustuslainsuojasta, Oikeus 1/1976, 104.<br />
402 Jyränki 1978, supra n. 195 at 75.<br />
323
6 Criticism and reform of legal education, 1968─1979<br />
Legal education was an essential objective for critical legal scholarship because that was<br />
where the lawyers of the future were taught and where the theoretical scholarship was<br />
put <strong>to</strong> practical use. Legal education thus provides an overall perspective on critical<br />
scholarship. In the previous sections, we have seen the criticism of law and legal scholarship<br />
as well as the changes that occurred in legal research. The criticism of education<br />
and its reform in the 1970s will provide a point of view in which this all can be summarized<br />
and concluded.<br />
The 1960s were times of change, indeed. Various societal and legislative reforms<br />
<strong>to</strong>ok place, and the backward Finnish society was transformed in<strong>to</strong> a modern, industrial<br />
society. The optimism in planning and reform also involved higher education, which<br />
was in a state of turmoil because of the massive expansion of the student population. At<br />
the mid-decade, the discussion about the need <strong>to</strong> reform the university intensi<strong>fi</strong>ed, and<br />
the government decided <strong>to</strong> initiate the reform. 403 Students were also becoming anxious<br />
about the problems at the universities, and law students criticized the conservative nature<br />
of their education and called for a more socially oriented curriculum. 404 In 1968,<br />
Jyränki wrote that <strong>to</strong> overcome the degradation of legal scholarship, legal education<br />
must change as well. 405 By the end of the decade, the reform of legal education was in<br />
motion. 406 The need <strong>to</strong> reform higher education in Finland was general, and the course<br />
of the reform followed well-worn paths. The actual reform of each individual discipline,<br />
however, was conducted individually, which meant that scholars at the academy had a<br />
considerable say in the process.<br />
The late 1960s was a time of radicalization of the Finnish universities as well as of<br />
legal scholarship. The manifestation of this radicalism was the occupation of the Old<br />
Student House in November 1968, an event in which even law students participated.<br />
The students had called for, among other things, democratization of the university administration<br />
and extension of the ideological basis of the curriculum. 407 In 1969, radical<br />
law students founded the journal Contra <strong>to</strong> contribute <strong>to</strong> the alternative and critical insights<br />
on law, legal education, society, and politics. 408 Radicalization of law students<br />
was a part of the change in atmosphere since, as noted, the late 1960s had in general<br />
been time of criticism of legal scholarship and activation of the alternative profession.<br />
Criticism of legal education became more intense in 1969, once the process of reform<br />
403 Martti Häikiö, Tutkinnonuudistuksen taustaa: Järjestelmäkeskustelua ja tutkin<strong>to</strong>asetuksia, 13–14, in<br />
Martti Häikiö, Hannu Rautkallio, Paula Tuomikoski-Leskelä, Juha Vuorinen (eds.), Korkeakoulut ja tutkinnonuudistus<br />
(<strong>Helsinki</strong>: Werner Söderström Osakeyhtiö 1977), 12–29.<br />
404 Korpiola 2010, supra n. 86 at 218–219.<br />
405 Jyränki 1968, supra n. 59 at 890–891.<br />
406 Kangas (ed.) 1998, supra n. 20 at 110–111.<br />
407 von Bonsdorff 1986, supra n. 10 at 26–28; Tuominen 1997, supra n. 7 at 333.<br />
408 Korpiola 2010, supra n. 86 at 170–186. The journal existed only for three years, and was closed down<br />
in 1971 because of <strong>fi</strong>nancial problems.<br />
324
had been initiated. Radical students and critical legal scholars often argued that law was<br />
the most conservative discipline and therefore in serious need of reform. 409 The young<br />
scholars Aulis Aarnio and Matti Savolainen forwarded their proposal for reform in<br />
which social science had a strong position at the beginning of the course, but the proposal<br />
was quickly turned down. 410 The arguments about the conservative nature of the<br />
legal education were not completely groundless, but scholars speaking for a more thoroughgoing<br />
change were facing a dif<strong>fi</strong>cult task.<br />
The criticism of legal education and the process of reform were launched in the<br />
1960s and the interview with the President Kekkonen in 1970 gave further impetus for a<br />
more thorough change in the basis of legal education. As we saw, the interview was<br />
conducted by legal scholars who favored critical and alternative views of legal scholarship,<br />
and with respect <strong>to</strong> education, the President once again supported their cause. 411<br />
He chided the law professors for their conservative attitude, arguing that students did<br />
not acquire a decent knowledge of social sciences or law in action. 412 Kekkonen criticized<br />
both the traditional legal profession and education. Whether his arguments were<br />
influenced by the scholars who conducted the interview or not, they obviously had a<br />
signi<strong>fi</strong>cant impact on the course of the reform.<br />
The debates on the reform intensi<strong>fi</strong>ed at the beginning of the 1970s. There was<br />
unanimity about the need for reform but disagreement arose about its content and structure.<br />
Although the need <strong>to</strong> update study materials and <strong>to</strong> provide relevant contemporary<br />
lessons for the students was recognized, 413 the precise purpose of the reform was the<br />
point of controversy. The criticism of legal scholarship was already widespread and<br />
intense, and the same arguments were advanced in the context of education. It was generally<br />
argued that law students needed more information about the social reality, as<br />
Matti Louekoski noted, and in order <strong>to</strong> achieve this he called for cross-disciplinary<br />
courses. He also opined that the freedom of the students should be increased. 414 Ilmari<br />
Ojanen argued that contemporary education incorporated the dominant bourgeois ideology<br />
and was thus ideologically one-sided. Therefore, different social systems and ideologies<br />
had <strong>to</strong> be taught. 415 Students had complained about the lack of social material and<br />
freedom for a couple of years, and as the alternative thinking spread among the legal<br />
profession, more scholars promoted these arguments. In accordance with the alternative<br />
scholarship, the reformist scholars argued that the methods of legal scholarship and its<br />
409 Reijo Lehtinen, Nyt se alkaa, Contra 1/1969, 24; Juha Vikatmaa, Juristit yhteiskuntakeskustelussa,<br />
Contra 2/1969, 35; Pertti Lammi, Eräs asennetutkimus, Contra 4/1969, 26; Markku Uomola, Opin<strong>to</strong>jen<br />
uudistuksesta, Contra 1/1970, 22–23; Patrick Zilliacus, Undervisning i juridik/politisk konservatism i<br />
misstag, Contra 3/1970, 20–23.<br />
410 Aulis Aarnio, Vastahankaan: Muistikuvia (<strong>Helsinki</strong>: Siltala 2009), 362–363. According <strong>to</strong> Aarnio, the<br />
reason for the failure was the fact that they had quoted Mao Zedong on the cover of the draft, although the<br />
draft itself was in fact based on the Yale Law School curriculum.<br />
411 On the interview in more detail, see section 2.2 above.<br />
412 Kekkonen 1970, supra n. 72 at xii–xiii.<br />
413 Aulis Pöyhönen, Missä viipyy oikeustieteellisten opin<strong>to</strong>jen uudistus, Lakimiesuutiset 12/1970, 5–8.<br />
414 Matti Louekoski, Eräitä näkökohtia oikeustieteellisen tiedekunnan tutkin<strong>to</strong>jen uudistamisesta, Lakimiesuutiset<br />
12/1970, 12–14.<br />
415 Ilmari Ojanen, Oikeudesta ja oikeuden tekemisestä, Lakimiesuutiset 1/1971, 19–21.<br />
325
elation <strong>to</strong> social values and ideologies had <strong>to</strong> be apparent in the courses. The idea behind<br />
the revision was <strong>to</strong> educate the students <strong>to</strong> understand the social signi<strong>fi</strong>cance of<br />
their profession.<br />
The task of revising the law school curriculum was far from simple, however.<br />
Aarnio criticized the pointlessness of the debates. According <strong>to</strong> him, since the reform<br />
had <strong>to</strong> begin from deliberation on what kind of jurists society needed, there was a need<br />
for a fundamental change in both the substance and structure of legal education. However,<br />
non-legal material should not be over-emphasized. 416 The traditional profession<br />
also recognized the need for reform, but wanted <strong>to</strong> maintain the basic aspects of traditional<br />
education and did not want <strong>to</strong> give <strong>to</strong>o much stress <strong>to</strong> non-legal material, 417 especially<br />
not wanting <strong>to</strong> include any ideological elements. 418 A particular problem was procedural<br />
law, which the radical students and alternative scholars often regarded as the<br />
most conservative subject, 419 some scholars thought about eliminating it as a separate<br />
subject and integrating it in<strong>to</strong> other courses. 420 This was unthinkable for the professor of<br />
procedural law of course. 421 Procedural law was probably the most dif<strong>fi</strong>cult course in<br />
law school and not very popular among the students. 422 It is therefore no surprise that<br />
the junior faculty often suggested that it should be dropped as an individual subject. 423<br />
Although the reform was inevitable, the conflict between the traditional and the critical<br />
profession was pervasive. Everyone seems <strong>to</strong> have acknowledged the need for the “lawyers<br />
for the future”, but there was no consensus on what they might be like.<br />
The pressure <strong>to</strong> reform legal education was particularly pressing at the University<br />
of <strong>Helsinki</strong>, the capital of Finland. It had been the sole academy for legal education in<br />
Finland till the beginning of the 1960s, when another law school was opened in Turku.<br />
The purpose of the new school was <strong>to</strong> have a broader base for legal education, but the<br />
pressure from the practical profession watered down any noteworthy educational innovations.<br />
424 Nevertheless, a need was felt <strong>to</strong> revise the course at the University of <strong>Helsinki</strong><br />
in order <strong>to</strong> maintain its prestige and modernity. In addition, since the poor situation of<br />
legal post-graduate studies had become evident in the lack of resources for research and<br />
education, 425 the pressure of change was immediate. There was a large number of students<br />
demanding reform, and the transformation of society set new requirements for law<br />
and the legal profession. The times of change were obvious in the thoughts of the alter-<br />
416 Aulis Aarnio, Ei ainoastaan muodoista…, Lakimiesuutiset 2/1971, 33–36.<br />
417 P.J. Muukkonen, “Niissä on <strong>to</strong>tta <strong>to</strong>inen puoli”, Lakimiesuutiset 1/1971, 8–9; Matti Ylöstalo, [an interview],<br />
Lakimiesuutiset 1/1971, 10–14; Edward Andersson, Opin<strong>to</strong>jen kokonaisuudistus, Lakimiesuutiset<br />
3/1971, 4–8.<br />
418 Andersson 1971, supra n. 417 at 5.<br />
419 Allan Rosas, Prosessioikeuden opetuksesta, Contra 4/1970, 24–25.<br />
420 Tapio T.J. Takki, Sananen prosessioikeuden asemasta yliopis<strong>to</strong>-opetuksessa, LM 1970, 942.<br />
421 Jouko Halila, Prosessioikeuden asemasta yliopis<strong>to</strong>-opetuksessa, LM 1971, 153–156.<br />
422 Korpiola 2010, supra n. 86 at 215.<br />
423 See Lauri Hormia, Aineellinen oikeus ja prosessioikeus, LM 1971, 157.<br />
424 Pöyhönen 1970, supra n. 413 at 5; Muukkonen 1971, supra n. 417 at 8.<br />
425 Kangas (ed.) 1998, supra n. 20 at 84–89.<br />
326
native and critical legal scholars, who considered themselves as the representatives of<br />
future legal scholarship.<br />
As was society, the university was in a turbulent situation in the early 1970s. Students<br />
had been a major mo<strong>to</strong>r of the radicalism of the 1960s, and the division between<br />
the traditional world-view and the new, radical one was seen at the faculty level as well.<br />
Young radical scholars considered traditional scholarship and university administration<br />
as reactionary and conservative, supporting the bourgeois hegemony and capitalist<br />
mode of production. At the beginning of the 1970s, then, the university was divided<br />
between the traditional and the radical bloc, 426 and the controversies over academic<br />
power were manifested on many occasions. The radicals criticized the politics of tenure<br />
nominations for their secrecy and conservative nature, 427 and academic research was<br />
criticized for its commercial dependence and lack of responsibility. Critical scholars<br />
opined that scholarship should be independent and focus on relevant social problems. 428<br />
The academic conflict over the methods and policies of research was obvious in the two<br />
simultaneous research projects on democracy and equality. Whereas DETA represented<br />
the traditional research, the TANDEM project represented the critical and radical<br />
thought. It approached the causes and consequences of social inequality from the Marxist<br />
perspective in order <strong>to</strong> demonstrate the de<strong>fi</strong>ciencies of Finnish society. Needless <strong>to</strong><br />
say, the traditional bloc criticized the research for its one-sided, ideological point of<br />
view. 429 It was evident in the conflict that every aspect of academic life was colored by<br />
the conflict over traditional and alternative points of view.<br />
The radical students who were among the most enthusiastic reformers of the university<br />
also criticized the capitalist education ideology and wanted <strong>to</strong> increase critical<br />
thinking and freedom of scholarship. 430 With respect <strong>to</strong> law, they conformed <strong>to</strong> the ideas<br />
of the alternative scholars and the Association of Democratic Lawyers. 431 The rise of<br />
Marxism and critical scholarship both followed and contributed <strong>to</strong> the controversies at<br />
the university. They represented the critical thinking that, according <strong>to</strong> the radical scholars,<br />
transcended the bourgeois hegemony and provided an alternative perspective on<br />
social structures, institutions, and consciousness. This all-encompassing conflict <strong>to</strong>ok<br />
more or less radical forms, but it was everywhere. Alternative scholars sought <strong>to</strong> modify<br />
the tradition, whereas radical scholars wanted <strong>to</strong> abandon it. With respect <strong>to</strong> the university<br />
administration, critical scholars wanted <strong>to</strong> open up the old hierarchies and increase<br />
426 Kari Immonen, Suomen akatemia suomalaisessa tiedepolitiikassa 1970-luvulla (<strong>Helsinki</strong>: Otava 1995),<br />
237–246.<br />
427 Antero Jyränki, Yrjö Littunen, Eino S. Repo, Miten professoria tehdään: Kiistakirjoitus akateemisesta<br />
nimitysjärjestelmästä (<strong>Helsinki</strong>: Otava 1971).<br />
428 Kettil Bruun, Katarina Eskola, Matti Viikari (eds.), Tiedepolitiikka ja tutkijan vastuu (<strong>Helsinki</strong>: Tammi<br />
1975).<br />
429 Immonen 1995, supra n. 426 at 174–188, 210–237. The TANDEM project is summarized in Demokratian<br />
rajat ja rakenteet: Tutkimus suomalaisesta hallitsemistavasta ja sen taloudellisesta perustasta (Juva:<br />
Werner Söderström Osakeyhtiö 1977).<br />
430 SOL:n taisteluohjelma Suomen opiskelijoille (<strong>Helsinki</strong>: Kirjapaino Kursiivi 1973).<br />
431 Id. at 149.<br />
327
democracy in decision-making and independence in research. The split within the university<br />
was pervasive, which was obvious in the reform of legal education.<br />
This reform <strong>to</strong>ok a step forward in 1973 when the reform committee published its<br />
report. The committee had worked from September 1971, and more than twenty people<br />
had worked in it, including Aulis Aarnio, Raimo Blom, Olavi Heinonen, Antero Jyränki,<br />
Lars D Eriksson, and Kaarlo Tuori. 432 Alternative and critical scholars were well<br />
represented on the committee, which was apparent in its work. The committee spent<br />
over three hundred pages in analyzing the status of legal education. In short, it explained<br />
that one purpose of higher education was <strong>to</strong> train critical thinking. Since concepts, theories,<br />
and methods were often based on values, law students should be made aware of the<br />
connection between law, legal scholarship, and society, as well as critical of it. Therefore,<br />
the committee proposed courses in social science and general jurisprudence in the<br />
<strong>fi</strong>rst semester, as well as a new subject division in which subjects were classi<strong>fi</strong>ed and<br />
named in accordance with the social problems the law regulated. Procedural law as an<br />
individual subject was removed and integrated in<strong>to</strong> the other courses. 433<br />
The proposal for reform complied with the critical and reformist side of the academy<br />
and thus conformed <strong>to</strong> the agenda of alternative and critical legal scholarship.<br />
Since it would have been a considerable change, it was no surprise that the traditional<br />
profession rejected it quite bluntly. Traditional scholars, judges, and lawyers were unanimous<br />
that the new subject division was disorganized and meant a serious break in an<br />
international tradition. 434 Furthermore, the traditional profession was also unanimous<br />
that the committee had over-emphasized social material at the expense of legal material.<br />
435 The professor of procedural law, Tauno Tirkkonen, argued that the committee was<br />
ideologically one-sided and that it proposal would lead <strong>to</strong> fragmented and impractical<br />
courses which would be very dif<strong>fi</strong>cult <strong>to</strong> realize. 436<br />
The gulf between the traditional and the critical perspective on law was obvious<br />
in the reception of the report, and the most essential reforms were thus immediately shot<br />
down. The scholars behind the reform were obviously promoting their academic interests,<br />
as well as reflecting the trends of the time. Although they did not alter the basis of<br />
legal education, but rather adjusted it <strong>to</strong> suit the interests of alternative scholarship, the<br />
432 Oikeustieteellisten opin<strong>to</strong>jen uudistuskomitean mietintö, 1973:30, 3–4. The composition of the committee<br />
changed in the course of its work.<br />
433 Id. at 29–50, 150–205. The new subjects proposed by the committee were organization and function of<br />
public authorities, <strong>fi</strong>nancing of public communities, legally punishable behavior, family, relations of<br />
production and exchange, labor, and the physical environment of people.<br />
434 Lassi Kilpi, Oikeustieteellisten opin<strong>to</strong>jen uudelleenjärjestelystä, LM 1974, 668–669; Korkeimman<br />
oikeuden lausun<strong>to</strong> oikeustieteellisten opin<strong>to</strong>jen uudistamiskomitean mietinnöstä, LM 1974, 695–696;<br />
Korkeimman hallin<strong>to</strong>-oikeuden lausun<strong>to</strong> oikeustieteellisten opin<strong>to</strong>jen uudistamiskomitean mietinnöstä,<br />
LM 1974, 700–701; Suomalaisen Lakimiesyhdistyksen lausun<strong>to</strong> oikeustieteellisten opin<strong>to</strong>jen uudistamiskomitean<br />
mietinnöstä, LM 1974, 704─705, 707–708.<br />
435 Arvo Helminen, Opin<strong>to</strong>uudistus vanhan juristin näkökulmasta, LM 1974, 676–678; Kilpi 1974, supra<br />
n. 434 at 664–666; Ris<strong>to</strong> Piepponen, Oikeustieteellisten opin<strong>to</strong>jen uudistaminen elinkeinoelämän kannalta,<br />
LM 1974, 682; Suomalaisen lakimiesyhdistyksen lausun<strong>to</strong> 1974, supra n. 434 at 704–706.<br />
436 Tauno Tirkkonen, Eräitä mietelmiä oikeustieteellisten opin<strong>to</strong>jen uudistamiskomitean mietinnön johdosta,<br />
LM 1973, 637–654.<br />
328
proposal for reform deviated from the tradition <strong>to</strong>o far <strong>to</strong> be uncritically accepted. The<br />
traditional profession was aware of their professional prestige and was therefore hesitant<br />
<strong>to</strong> accept any such thoroughgoing changes, even if the proposal merely broadened the<br />
basis of education and did not turn it in<strong>to</strong> ideological preaching. For the traditional profession,<br />
legal rules and principles were more important <strong>to</strong> the jurist than social data.<br />
Despite the reformist character, the report was a compromise between alternative<br />
and traditional insights. Its main focus was still on the education of a jurist, even though<br />
the structure of the curriculum was revised and non-legal material was increased. Radicals<br />
thus criticized it for not being reformist enough. 437 Bruun, on the other hand, noted<br />
that the report was simply a proposal for a reform that was <strong>to</strong> be realized in practice, and<br />
he worried that the reform would be <strong>to</strong>rpedoed because the law faculty and the profession<br />
were against it. 438 The opposition <strong>to</strong> the reform was <strong>fi</strong>erce, so the worries about it<br />
being watered down were not unfounded. Therefore, <strong>to</strong>o, the committee could not have<br />
seriously made any more a radical proposal. General trends followed the politics of the<br />
time, but the legal profession at large remained loyal <strong>to</strong> the tradition. The <strong>fi</strong>nal say in<br />
the execution of the reform was left <strong>to</strong> the faculty, which in general was not especially<br />
well-disposed <strong>to</strong>wards alternative scholarship.<br />
The conflict between the traditional and the alternative factions of the faculty became<br />
apparent in 1975 with a conflict over a text book. Several alternative scholars had<br />
participated in writing the book, which was meant <strong>to</strong> be used in the admission tests. The<br />
authors included Blom, Eriksson, Jyränki, and Tuori. 439 The authors stated that legal<br />
rules were contingent, emanating from material social relations, and that their ultimate<br />
purpose was <strong>to</strong> preserve the existing social power structures. Furthermore, the role of<br />
discretion and interpretation were emphasized in judicial decision-making. 440 In many<br />
ways, the book was a summary of alternative legal scholarship. Its disposition complied<br />
with the new subject division proposed by the legal education reform committee, and its<br />
substance conformed for the most part <strong>to</strong> the alternative and critical insights. It gave a<br />
realistic, or critical, perspective on law and legal scholarship and often stressed the alternative<br />
views and arguments. Legal rules were often in the background and the emphasis<br />
was on the social functions of law.<br />
The faculty, however, rejected the book, which was divided in<strong>to</strong> two parts in the<br />
hope that at least the second part, which was much less critical than the <strong>fi</strong>rst, would be<br />
accepted. Eventually, however, both parts were turned down, which naturally upset the<br />
authors. 441 The book was a continuation of the series of legal text books with the alternative<br />
approach that had been published during the 1970s in criminal, 442 constitution-<br />
437 Mäenpää 1973, supra n. 114 at 7–8.<br />
438 Niklas Bruun, Opin<strong>to</strong>jenuudistus tienhaarassa, Oikeus 1/1975, 37–40.<br />
439 Aulis Aarnio, Olavi Heinonen, Kaarlo Tuori (eds.), Suomen oikeus 1–2 (<strong>Helsinki</strong>: Tammi 1975), 16.<br />
440 Id. at 21–65. Because so many scholars had participated in the writing, not all the parts of the book<br />
were especially critical. Nevertheless, its major character was alternative <strong>to</strong> the traditional text book.<br />
441 Aulis Aarnio, Olavi Heinonen, Kaarlo Tuori, Suomen oikeudesta, Oikeus 1/1976, 46–48.<br />
442 Anttila & Heinonen 1971, supra n. 305; Anttila & Heinonen 1972, supra n. 316; Anttila, Heinonen,<br />
Koskinen, Lahti 1974, supra n. 294; Anttila & Heinonen 1977, supra n. 318.<br />
329
al, 443 and family law, 444 for example. Many of these had been included in the law school<br />
requirements but here the faculty drew the line. A general introduction <strong>to</strong> the legal system<br />
meant <strong>to</strong> be used in admission tests must have been <strong>to</strong>o much because of its signi<strong>fi</strong>cance<br />
for the law students. Besides the rejection of the book, the reform was going<br />
down in other ways as well. The Association for Legal and Social Sciences complained<br />
that the faculty had markedly reduced the books on philosophy, his<strong>to</strong>ry, and society in<br />
the general phase of legal studies. 445 The ambitious reform was coming <strong>to</strong> a halt as it<br />
faced the educational realities. Legal tradition could not have been changed in a short<br />
time, and traditional scholars were still the majority in the faculty. The viability of alternative<br />
scholarship was tested when the reform was taken from principle <strong>to</strong> practice.<br />
At the end of the decade, the intense debates over legal education began <strong>to</strong> fade.<br />
The reform was being executed and scholars still disagreed over the details, but the major<br />
course was determined and the demagogic criticism was losing its impetus. Once the<br />
hero of alternative legal scholars, Kaarle Makkonen, who over decade before had rejected<br />
the traditional ideas on legal reasoning, was now speaking for a more traditional education.<br />
He argued that super<strong>fi</strong>cial knowledge of theory and philosophy would not be of<br />
much practical use or interest <strong>to</strong> the students, and therefore the amount of non-legal<br />
material should be kept <strong>to</strong> a minimum. 446 Toivo Holopainen also noted that since students<br />
needed practical skills, legal rules should be the core of education. 447 Klami, on<br />
the other hand, defended the position of legal his<strong>to</strong>ry, 448 and also argued that education<br />
should focus on the goals and consequences of law. 449 Although the struggle over education<br />
was not completely over, the majority of the profession had realized that legal<br />
education was brief and that its major purpose was <strong>to</strong> train lawyers, and that it was not<br />
possible <strong>to</strong> include much extra-legal material in the curriculum. Even if the social sciences<br />
in legal education were not criticized per se, their impracticality had been widely<br />
recognized.<br />
As was the case in the general criticism of jurisprudence, the problem was also<br />
about the nature of the social relations of law. For Eriksson, the struggle over the reform<br />
was like whistling in the wind since the traditional scholars could not understand the<br />
point. He criticized Makkonen and Holopainen for promoting a legalist and extremely<br />
positivist view on law that neglected the ideological use of rules and did not train the<br />
students <strong>to</strong> assess the relationship between law and society critically. 450 Holopainen<br />
responded that the emphasis on rules did not mean extreme legalism but simply the<br />
443 Jyränki, Perttunen, Vilkkonen 1972, supra n. 196.<br />
444 Saarenpää, Mattila, Mikkola 1972, supra n. 374; Helin 1974, supra n. 383.<br />
445 Opin<strong>to</strong>jen yleisvaiheen suunnittelu: Oikeus- ja yhteiskuntatieteellisen yhdistyksen lausun<strong>to</strong>, Oikeus<br />
3/1976, 137–138.<br />
446 Kaarle Makkonen, Ns. yleisteoreettiset aineet oikeustieteen kandidaatin tutkinnossa, LM 1977, 307–<br />
309, 312–315.<br />
447 Toivo Holopainen, Normin mukaista vai tavoitteiden suuntaista, LM 1977, 639.<br />
448 Hannu Tapani Klami, Oikeushis<strong>to</strong>rian asema oikeustieteen kandidaatin tutkinnossa, LM 1977, 822–<br />
824, 828–829.<br />
449 Hannu Tapani Klami, Oikeustieteestä, LM 1977, 359–364.<br />
450 Lars D. Eriksson, Kamp mot väderkvarnar, Oikeus 1/1978, 3–5.<br />
330
practicalities of the profession, 451 but for Eriksson, this view did not pay due attention <strong>to</strong><br />
the ideological justi<strong>fi</strong>cation of law. 452 To the critical scholars, the problem was not<br />
simply about interpretation or discretion, but rather about the fac<strong>to</strong>rs behind them. In<br />
their view, legal reasoning and decision-making always promoted some further goal that<br />
was unseen in most situations, which was why law had <strong>to</strong> be critically analyzed. This<br />
point of view, however, was in such radical conflict with the traditional perspective, that<br />
it did not have a chance even in the political atmosphere of the 1970s.<br />
Legal education was reformed before the end of the 1970s. It has been argued that<br />
the reform succeeded in general quite well in <strong>Helsinki</strong>, although many of the younger<br />
scholars were displeased with the fact that the extra-legal material was not increased as<br />
much as expected, and although students were divided on the issue. 453 The structure of<br />
the education changed and materials of philosophy and social sciences were added <strong>to</strong><br />
the <strong>fi</strong>rst year of the studies. Some of the alternative text books made their way in<strong>to</strong> the<br />
requirements, but the substance in general remained rather traditional. 454<br />
In the end it seems that the reform was tamed because of practical problems. Critical<br />
scholars often had overly radical ideas without considering how they would function<br />
in practice. Scholars who reviewed the reform immediately after its execution noted that<br />
the criticism of the traditional education and the proposals for reform concentrated <strong>to</strong>o<br />
much on the goals without paying enough attention <strong>to</strong> the methods of achieving them, 455<br />
and that the goals were <strong>to</strong>o ambitious. 456 The faculty also wanted <strong>to</strong> maintain the traditional<br />
subject division, and had <strong>to</strong> give up on many reforms because of lack of resources.<br />
457 Some of the reforms were <strong>to</strong>o radical for the traditional profession <strong>to</strong> accept,<br />
while others failed because of the educational realities. The reform was not a complete<br />
failure, but for many alternative scholars, and especially critical scholars, it was disappointingly<br />
moderate.<br />
The struggle over legal education lasted for a decade and ended in a compromise<br />
based on traditional thought. The problems regarding legal education were acknowledged<br />
in the late 1950s, and the discussion on reform began. In the 1960s, students<br />
complained about the education and the government deliberated on the general course<br />
of reform of the university, which was also initiated. Reformist scholars began <strong>to</strong> argue<br />
for a more thorough alteration of the form and substance of the law school curriculum in<br />
the late 1960s, and the interview with the President gave the <strong>fi</strong>nal push <strong>to</strong> the debates.<br />
The reform committee, which was manned mostly by young, reformist people, proposed<br />
451 Toivo Holopainen, Taistelusta tuulimyllyjä vastaan, Oikeus 3/1978, 183–185.<br />
452 Lars D. Eriksson, Med anledning av ovanstående muller, Oikeus 3/1978, 186.<br />
453 Korpiola 2010, supra n. 86 at 222–223.<br />
454 One can see this by comparing the study guides of the law school of the University of <strong>Helsinki</strong> between<br />
the early and late 1970s.<br />
455 Kauko Wikström, Piirteitä viimeaikaisesta oikeustieteellisestä keskustelusta Suomessa, LM 1979, 467.<br />
456 Heikki Halila, Eräitä oikeustieteellisestä tutkinnosta annetusta asetuksesta aiheutuvia ongelmia, LM<br />
1980, 425, n. 16.<br />
457 Edward Andersson, Oikeustieteiden tutkinnonuudistuksen tausta ja <strong>to</strong>teuttaminen, 46–47, in Häikiö et<br />
al. (eds.) 1977, supra n. 403 at 44–51.<br />
331
elatively major changes in the curriculum, but these were moderated in practice. Legal<br />
education was reformed but not <strong>to</strong> a major extent.<br />
The criticism of legal education shows the magnitude of alternative and critical legal<br />
scholarship and its connections with university politics and research in the 1960s<br />
and 1970s. With respect <strong>to</strong> legal education, alternative and critical scholars naturally<br />
endorsed the insights they had on law and sought <strong>to</strong> promote them in the curriculum.<br />
They argued, alongside the radical students, that the connection between law and society<br />
should be critically analyzed, the ideological basis of education ought <strong>to</strong> be exposed,<br />
and more materials on social sciences and philosophy should be included. These were<br />
the arguments the scholars advanced in their particular subjects. Education was the <strong>fi</strong>eld<br />
where scholarship could be put <strong>to</strong> practical use and where its academic signi<strong>fi</strong>cance was<br />
partly determined. The question was also about the power over scholarship and administration<br />
at the university. The alternative bloc was against the traditional hierarchies<br />
and politics of research which they wanted <strong>to</strong> dethrone and replace with their own ways.<br />
Critical legal scholarship thus involved several aspects of the 1960s and 1970s. And<br />
although it reflected the reformist spirit of the time, its ideas were not <strong>to</strong> be inserted in<strong>to</strong><br />
legal education without compromises, since its perspective on law deviated fundamentally<br />
from that of the tradition.<br />
7 Alternative legal scholarship at the end of the 1970s: From radical<br />
criticism <strong>to</strong> alternative analysis of law<br />
The time from the late 1960s <strong>to</strong> the last quarter of the 1970s was a continuing battle<br />
over the dominance of jurisprudence. Critical scholars fought <strong>to</strong> strip the credibility and<br />
viability from traditional scholarship. At <strong>fi</strong>rst, critical legal scholarship had been passionate<br />
trashing of the traditional methods of scholarship and conceptions about law,<br />
and later it matured in<strong>to</strong> more theoretical and sophisticated literature. Besides scholarship,<br />
the criticism also concerned the corner-s<strong>to</strong>nes of the Finnish legal system, such as<br />
the Constitution, the judiciary, criminal law, and legal education, which were all under<br />
pressure of change, as the critical scholars manned the reform committees and worked<br />
<strong>to</strong>wards a radical alteration of the law. The late 1970s, however, marked a period of<br />
change. <strong>Society</strong> was becoming more conservative, the optimism in the welfare state was<br />
waning, the conflict between labor and capital became less pronounced, and student<br />
radicalism was fading. Despite the intense criticism, many things were either the same<br />
or had changed but not as much as the critics had hoped for. At the end of the 1970s,<br />
critical legal scholarship was facing new problems.<br />
The critical enterprise had not been a failure, however, for Finnish legal scholarship<br />
had been transformed <strong>to</strong> some extent. Empirical material and value-based analysis<br />
were typically excluded in traditional scholarship, but the heated debates on jurisprudence<br />
and the changes in the policy of scholarship and research had encouraged alterna-<br />
332
tive approaches in legal scholarship. In addition <strong>to</strong> the studies on criminal law, 458 collective<br />
agreements, 459 and unemployment bene<strong>fi</strong>ts, 460 which were obvious expressions of<br />
alternative and critical legal scholarship, methodology and perspective changed in the<br />
more traditional scholarship as well. Matti Niemivuo applied an his<strong>to</strong>rical, empirical,<br />
and realistic approach in his study on the state subsidies, 461 criticism of ideology and a<br />
sociological approach prevailed in Timo Konstari’s treatise on the publicity of documents<br />
in the state administration, 462 and the study by Kirsti Rissanen on trademarks was<br />
clearly cross-disciplinary. 463 Kauko Wikström’s analysis of legal reasoning was an attempt<br />
<strong>to</strong> revise legal realism in Finland as well as the criticism of analytical jurisprudence,<br />
464 and there was still interest in analyzing the “scienti<strong>fi</strong>c” basis of legal scholarship<br />
and its potential as an empirical science. 465<br />
As the various treatises at the end of the decade show, alternative legal scholarship<br />
had become practically a commonplace in Finnish jurisprudence. Several textbooks<br />
with an alternative approach had also been published and included in the law school<br />
curricula. The waning of critical legal scholarship, on the other hand, was seen in the<br />
text-book on constitutional law, where the radical second edition had been revised in<br />
1979 <strong>to</strong> create a far more traditional book. 466 The methodological basis of legal scholarship<br />
had broadened nevertheless. Empirical analysis was now more common and doctrinal<br />
analysis less dominant, although it was still the most common form of legal scholarship.<br />
Alternative legal scholarship had become less of an “alternative” and more of a<br />
sub-paradigm. Critical legal scholarship, then, had <strong>to</strong> <strong>fi</strong>nd new ways <strong>to</strong> revive its relevance<br />
in the ever-changing social and academic atmosphere.<br />
The optimism in social planning and reform had faded signi<strong>fi</strong>cantly by 1978, when<br />
scholars contemplated their achievements in legal policy in a symposium on the<br />
“change of the legal policy”. By then, the debates on legal policy had faded <strong>to</strong> a large<br />
extent, and alternative scholars disagreed on their consequences. They noted that the<br />
three most important aspects of the critical debates of the 1960s and the 1970s were the<br />
criticism of legal scholarship and education, the reconsideration of the Constitution,<br />
legislation, and the courts, and the revival of the Association of Democratic Lawyers,<br />
458 Backman 1976, supra n. 168.<br />
459 Bruun 1979, supra n. 365.<br />
460 Mikkola 1979, supra n. 367.<br />
461 Matti Niemivuo, Valtionavut kunnille ja kuntainlii<strong>to</strong>ille: Oikeustieteellinen tutkimus valtionapuinstituutiosta<br />
julkisten palvelujen, erityisesti perus- ja keskiasteen koulutuksen määrällisen sääntelyn keinona<br />
(<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1976).<br />
462 Timo Konstari, Asiakirjajulkisuudesta hallinnossa: Tutkimus yleisten asiakirjain julkisuudesta hallinnon<br />
kontrollivälineenä (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1977).<br />
463 Kirsti Rissanen, Kilpailu ja tavaramerkit: Kilpailunrajoituslainsäädännön soveltaminen tavaramerkin<br />
yksilöimiin järjestelyihin (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys 1978).<br />
464 Kauko Wikström, Oikeuskäytännön tulkinnasta: Erittely oikeusnormien soveltamis<strong>to</strong>iminnasta esitettävien<br />
väitteiden teoreettisista perusteista ja oikeuskäytännön rakenteesta (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys<br />
1979).<br />
465 Juha Pöyhönen, Oikeusteoria, yhteiskunta ja yhteiskuntatieteet, Oikeus 1/1979, 41–51.<br />
466 Compare Jyränki, Perttunen, Vilkkonen 1972, supra n. 195 with its fourth edition of 1979.<br />
333
ut the actual reforms had been moderate, and now the criticism was muted. 467 The legislative<br />
reforms of the 1970s were respected although some were disappointed with<br />
their inadequacies, as well as with the current state of the legislation. 468 In the symposium,<br />
the fact that the scholars still endorsed alternative scholarship and political activism<br />
but the society around them had changed was revealing.<br />
In spite of the changes in the social atmosphere, some things were the same. Raimo<br />
Blom, for example, continued his empirical analyses on the impartiality of the administration<br />
of justice. He had been unable <strong>to</strong> point out any systematic discrimination in<br />
the criminal process, yet he still argued that it existed at every stage of the process and<br />
thus produced inequality in the administration of criminal justice. 469 The fact that more<br />
people refused <strong>to</strong> reply <strong>to</strong> his survey studies in the changed situation because they<br />
thought that the study was prejudiced against the legal system and social order of Finland<br />
was revealing, however. One person, for instance, replied that “I did not reply because<br />
a study that clearly aims at a predetermined and ready-made goal is not science <strong>to</strong><br />
my knowledge, but rather a badly concealed promotion of the ideological purposes of<br />
the scholar,” and another one commented that “I have talked with about twenty people<br />
who have all received your letter, and without exception each and every one of them has<br />
been of the opinion that once again the legal and social order of Finland is under attack.”<br />
470 The radical attack at the late 1960s was still in the minds of the legal professionals,<br />
and they did not want that <strong>to</strong> happen again now. Critical legal scholarship had<br />
obviously irritated the majority of the profession despite reactions <strong>to</strong> it being few. The<br />
traditional profession tried not <strong>to</strong> be bothered by it, and traditional scholars responded<br />
whenever they felt a need for it. The colorful decade and a half that had passed had left<br />
a mark on the profession, and at the end of the 1970s, it wanted <strong>to</strong> go back <strong>to</strong> normalcy.<br />
Critical legal scholarship was going out of fashion but it was not over. As the ideological<br />
enthusiasm of the 1960s had turned <strong>to</strong>wards the realities of the late 1970s, Eriksson<br />
recalled the need for thorough discussion about the fundamental principles of law<br />
and the legal system, lest the noble ideas be buried under bureaucracy and technical<br />
corrections. 471 As the decade approached its close, however, the <strong>to</strong>ne had changed. In<br />
the opening <strong>to</strong> the <strong>fi</strong>rst issue of Oikeus in 1977, he wrote that the political atmosphere<br />
had changed and the time of <strong>to</strong>tal reform was over. Now it was time <strong>to</strong> consider the possibility<br />
of change and <strong>to</strong> develop a new kind of legal argumentation. 472 Many things had<br />
indeed changed. The optimism over the welfare state had dissipated and society in general<br />
had become more conservative. Besides the moderation of politics, there was a<br />
467 Oikeuspolitiikan murros, Oikeus 4/1978, 196–198.<br />
468 Id. at 199 [Nikula], 201 [Lång].<br />
469 Raimo Blom, Rikostuomiot ja Suomen tuomioistuinlakimiehet (Tampere: Tampereen yliopis<strong>to</strong> 1979),<br />
22–26, 61–86, 98–128, 170–184.<br />
470 Id. at 298. Translations mine.<br />
471 Lars D. Eriksson, Begravas reformerna? Lakimiesuutiset 3/1971, 15–16.<br />
472 Lars D. Eriksson, Oikeus 1/1977, 3–4 [untitled introduction].<br />
334
strong rightist trend in student politics. 473 The great plans <strong>to</strong> reform the constitution,<br />
criminal law, and legal education were over; while the <strong>fi</strong>rst had been temporarily halted,<br />
the second was split in<strong>to</strong> various partial reforms, and the last was receiving its <strong>fi</strong>nal<br />
<strong>to</strong>uch with a compromise between conservative and radical opinions. And although<br />
methodologies had expanded and arguments had become more flexible, Finnish jurisprudence<br />
was still mainly normative. Radicalism was over but alternative legal scholarship<br />
was alive and kicking.<br />
Eriksson’s opening is illustrative of the jurisprudential situation of the latter half of<br />
the 1970s. The radicals of the 1960s had grown and found jobs in the administration or<br />
at the universities, and their time was now consumed by their responsibilities. Their<br />
youthful enthusiasm for radical criticism had dissipated, their theoretical sophistication<br />
had grown, and their world-view had become less idealistic. Moreover, as the time in<br />
general had become more conservative, students were not all that interested in critical<br />
scholarship. The age of radical criticism was over, and alternative legal scholarship had<br />
<strong>to</strong> <strong>fi</strong>nd new ways <strong>to</strong> maintain its viability without repeating the old ideas or being absorbed<br />
in<strong>to</strong> the mainstream. Alongside the changed circumstances, Eriksson’s opening<br />
also referred <strong>to</strong> his article in the journal.<br />
The focus of critical scholarship thus moved from general jurisprudence and the<br />
Constitution <strong>to</strong>ward legal argumentation in practical cases. In the late 1970s, Eriksson<br />
was the scholar who most enthusiastically elaborated new thoughts of critical and alternative<br />
legal scholarship. In the pursuit of developing an alternative model for argumentation,<br />
he found new influences from Italian jurisprudence. He re-stated that legal rules<br />
withheld value choices, adjudication was political in the last resort, law was not au<strong>to</strong>nomous,<br />
and that the traditional doctrine on the separation of state powers did not correspond<br />
<strong>to</strong> reality. The new element in the theory was, however, that these points were <strong>to</strong><br />
be linked <strong>to</strong> judicial decision-making, which was <strong>to</strong> be based on the sovereignty of the<br />
people. The political nature of adjudication was <strong>to</strong> be recognized, and the courts were<br />
not <strong>to</strong> become guardians of the ruling class. By contrast, law was <strong>to</strong> be adjusted <strong>to</strong> reality<br />
in order <strong>to</strong> promote equality. 474<br />
This could be seen as the beginning of the Finnish alternative analysis of law, although<br />
similar arguments had been put earlier in the 1970s. Nevertheless, the purpose<br />
here was <strong>to</strong> provide models of argumentation and interpretation of law which would<br />
promote material equality. The idea of the alternative jurisprudence of the late 1970s<br />
was that social equality could be promoted through argument in actual cases instead of<br />
pursuing fundamental changes in the Constitution. Eriksson’s theory was also a forerunner<br />
in the application of Italian legal theory in the Finnish and Scandinavian contexts.<br />
By noting that alternative solutions could be made by a non-traditional mode of<br />
473 Marja Järvelä-Hartikainen, Några anteckningar om student-rörelsens his<strong>to</strong>ria i Finland, HfKS 3/1977,<br />
79.<br />
474 Lars D. Eriksson, Magistratura democratica och den italienska juris<strong>to</strong>ppositionen, Oikeus 1/1977, 37–<br />
43.<br />
335
easoning, the purpose was <strong>to</strong> elaborate a theory of reasoning that could transcend formalism<br />
without any radical alteration.<br />
The times also required changes in adjudication. Eriksson noted that fundamental<br />
rights had become important and that courts were their main execu<strong>to</strong>rs and protec<strong>to</strong>rs.<br />
Because legal problems often concerned conflicts of interest which required being<br />
weighed against each other, the traditional forms of reasoning did not correspond with<br />
the reality. This required frank consideration of values, interests, and goals in judicial<br />
decision-making, as well as integrating the courts more closely with society. 475 Although<br />
the reform of the judiciary still lurked within the article, the main point was in<br />
the alteration of legal argumentation. Since the rights of the citizen had become critical<br />
in law and society during the 1970s, it was important <strong>to</strong> attend them in legal theory because,<br />
it was argued, the execution of rights could not be left <strong>to</strong> logic but required a<br />
comprehensive understanding of the situation.<br />
Indeed, a new model of legal argumentation was needed <strong>to</strong> solve the complex<br />
problems of modern society. Eriksson had also noted the Scandinavian debate on the<br />
distinction between legal rules and principles, as well as Dworkin’s formulation of the<br />
problem. 476 He argued that <strong>to</strong> understand the dynamics of legal argumentation, one had<br />
<strong>to</strong> be familiar with its his<strong>to</strong>rical dimensions, because legal ideology and culture restricted<br />
the margin of error. It was important <strong>to</strong> consider what circumstances were relevant in<br />
the case. In this regard, Eriksson provided a goal-rational model of argumentation in<br />
which the judicial decision-maker <strong>to</strong>ok the goals of law as well as the goals and needs<br />
of the parties <strong>to</strong> the case in<strong>to</strong> account. The purpose was <strong>to</strong> decide legal cases according<br />
<strong>to</strong> a comprehensive assessment of the relevant data and the consequences of the decision.<br />
477 Eriksson’s alternative analysis developed greatly in a couple of years. By following<br />
the debates on legal principles, he could <strong>fi</strong>nd a method of flexible legal reasoning<br />
in which all the relevant issues could be taken in<strong>to</strong> account, and where the decision<br />
could be based on consideration of consequences and policies.<br />
In general, then, alternative legal scholarship was moving from radical criticism<br />
<strong>to</strong>wards alternative analysis of law and legal argumentation. The basic themes were still<br />
the same, but the radical enthusiasm had changed in<strong>to</strong> theorizing on more practical matters.<br />
The basis for alternative analysis was laid in the late 1960s and early 1970s. Now,<br />
however, the older critical scholars were elaborating new theories as were the younger<br />
scholars, who were not particularly Marxist albeit influenced by it. Alternative legal<br />
scholarship had become widespread and accepted in the 1970s, although the radical<br />
475<br />
Lars D. Eriksson, Doms<strong>to</strong>larnas förändrade roll, 58–64, in Juhlajulkaisu Paavo Kastari (<strong>Helsinki</strong>:<br />
Suomalainen lakimiesyhdistys 1978), 55–66.<br />
476 On the Scandinavian debates, see Chapter IV section 6.6.<br />
477 Lars D. Eriksson, Om olika argumentationsmodeller, JFT 1979, 25–26, 35–36, 42–44. Eriksson referred<br />
<strong>to</strong> a U.S. Supreme Court decision, Regents of University of California v. Bakke, 438 U.S. 265<br />
(1978), which dealt with af<strong>fi</strong>rmative action. The Court did not approve racially based quotas as such, but<br />
it did approve race being taken in<strong>to</strong> account in some cases as a criterion for admission <strong>to</strong> university if it<br />
was meant <strong>to</strong> promote the equality of minorities. Eriksson referred <strong>to</strong> that case because he saw that it<br />
might provide reasons for af<strong>fi</strong>rmative action in Finland regarding the Swedish-speaking minority.<br />
336
claims were never approved. The critical debates had contributed <strong>to</strong> the rise of methodological<br />
eclecticism and balanced realism in jurisprudence.<br />
Despite the fact that the focus was on a new style of argumentation, there still was<br />
a need for thorough changes in legal scholarship. For example, the emphasis on values<br />
and policies in legal scholarship and practice was evident in the Mikkola’s treatise of<br />
1979. He encouraged examination of the values within law as one aspect of legal scholarship<br />
because a critical inquiry in<strong>to</strong> the values was considered necessary in order <strong>to</strong><br />
contemplate reform. 478 The theory was a combination of traditional and alternative legal<br />
scholarship, because the social problems of the 1970s still required an analysis of the<br />
policies that lurked behind law and thus also influenced legal practice. Alternative legal<br />
scholarship had long pursued a comprehensive image of law in society, and various<br />
studies had opened up various parts of the legal system, but a major theory of critical<br />
legal scholarship was still lacking.<br />
Eriksson was also reaching the point where he could synthesize his ideas in<strong>to</strong> a<br />
comprehensive theory. There was a need <strong>to</strong> reconsider the basis of legal scholarship<br />
because, as he argued, the positivism that dominated Finnish jurisprudence ignored the<br />
values which nevertheless played a signi<strong>fi</strong>cant role in adjudication. This drive <strong>to</strong>wards<br />
rationality in scholarship, however, led <strong>to</strong> irrationality in judicial decision-making. The<br />
connection between social interests and the legal system was <strong>to</strong> be analyzed because it<br />
was the only way <strong>to</strong> criticize and develop law in the struggle for equality. 479 Eriksson<br />
had worked on critical legal theory for over a decade, and his philosophical sophistication<br />
as well as his familiarity with Marxism had increased greatly during that time. 480<br />
By the end of the 1970s, the time was ripe for a Marxist theory of law that would<br />
meet the needs of both scholarship and practice. Eriksson de<strong>fi</strong>ned these fundamentals in<br />
an article in 1979 in which he sketched the context for a more comprehensive theory.<br />
Law, he argued, was both a means of directing social behavior and an ideology for social<br />
structures, and Marxist legal scholarship sought a thorough understanding of society<br />
and law. The focus of legal scholarship was legal reality, meaning the various ways<br />
law was used as a social <strong>to</strong>ol as well as the complex relationship between law, politics,<br />
and the economy. 481 The purpose was thus not <strong>to</strong> analyze law but its actual functions in<br />
society. There was also a practical function. Legal argumentation was also important<br />
because social structures and ideology de<strong>fi</strong>ned its rationality. Therefore one should<br />
study the possibilities between the “is” and the “ought” of judicial decision-making in<br />
order <strong>to</strong> emancipate it from its ideological boundaries. 482 Marxist legal scholarship set<br />
out <strong>to</strong> reveal the reality of law both as a system and in action, and <strong>to</strong> analyze the poten-<br />
478 Mikkola 1979, supra n. 367 at 6–36.<br />
479 Lars D. Eriksson, Lakipositivismi ja oikeuspositivismi, Tiede & Edistys 1/1978, 45–50.<br />
480 Eriksson has explained in his own words the development of his critical theory in Lars D. Eriksson,<br />
Den kritiska teorins utvecklingsgång: En sen Egotripp, in Kjell Å. Modéer & Martin Sunnqvist (eds.):<br />
1968 och därefter: De kritiska rättsteoriernas betydelse för nordisk rättsvetenskap (Københavns Universitet:<br />
Museum Tusculanums Forlag 2010), 99–114.<br />
481 Lars D. Eriksson, Utkast till en marxistisk jurisprudens, Retfærd 11/1979, 40–42.<br />
482 Id. at 42–52.<br />
337
tial for reform. In this sense, jurisprudence served not merely the needs of theory or<br />
legal practice but also the needs of political change.<br />
In 1980, Eriksson summarized his theory in his doc<strong>to</strong>ral dissertation, which consisted<br />
of thirteen articles published in 1966–1979 and a summary part of one hundred<br />
and thirty six pages in which he adumbrated the theory of Marxist legal scholarship. 483<br />
There was, however, a problem. The University of <strong>Helsinki</strong> did not want <strong>to</strong> approve it<br />
because it was not a typical dissertation but a collection of articles and a summary.<br />
Thus, Eriksson decided <strong>to</strong> defend his thesis at the University of Turku which had a record<br />
of producing dissertations on legal philosophy and theory. 484 The fact that the University<br />
of <strong>Helsinki</strong> declined <strong>to</strong> grant permission <strong>to</strong> defend the thesis probably does not<br />
say much about the state of jurisprudence at that time or that there was some kind of<br />
hostility <strong>to</strong>wards Marxism. It seems that the University wanted <strong>to</strong> maintain its standards<br />
on doc<strong>to</strong>ral thesis, which were conservative <strong>to</strong> an extent.<br />
In any event, Eriksson’s thesis was approved in 1980, the <strong>fi</strong>rst systematic analysis<br />
of Marxist legal scholarship in Finland. The premises of the theory were those that had<br />
been emphasized for a decade; now they were presented in a more systematic and sophisticated<br />
fashion. According <strong>to</strong> Eriksson, the purposes of Marxist legal scholarship<br />
were <strong>to</strong> seek structural connections and conflicts within law, reveal its interest-bound<br />
nature, and present emancipa<strong>to</strong>ry alternatives. It investigated the tendencies of the development<br />
of law in its his<strong>to</strong>rical, political, and social context. And while recognizing<br />
the relative au<strong>to</strong>nomy of law and legal scholarship, the main focus was on their social<br />
connections. 485 In its his<strong>to</strong>rical-materialist sense, Marxist theory perceived law as a social<br />
construct for particular purposes, which were <strong>to</strong> be analyzed. Through this kind of<br />
research one could obtain a realistic image of law in order <strong>to</strong> proceed <strong>to</strong> the next phase<br />
which was the critical analysis of law in action.<br />
The purpose of the critique of ideology was <strong>to</strong> show how ideology masked the real<br />
relations and restrained practice. Critical analysis of law rede<strong>fi</strong>ned the traditional legal<br />
concepts, such as freedom and equality, and reconsidered their meaning and purpose in<br />
contemporary society. The ultimate goal was <strong>to</strong> create a sketch for the concept of justice,<br />
which was always linked <strong>to</strong> society. In this sense, legal scholarship was practical<br />
activity on practical cases. 486 Marxist legal scholarship was not merely criticism of law,<br />
but was critical analysis of law in action, searching for alternatives for the contemporaneous<br />
law. It also sought <strong>to</strong> demonstrate that the gap between law in books and law in<br />
action followed a purpose and then <strong>to</strong> reveal that purpose. The argument that legal concepts<br />
masked and legitimized this gap was fundamental; concepts had <strong>to</strong> be reconsidered<br />
and re-de<strong>fi</strong>ned. Just as the critical legal scholars in the United States argued<br />
that law protected certain values which could have been something else just as well, the<br />
483 Lars D. Eriksson, Marxistisk teori och rättsvetenskap (<strong>Helsinki</strong>: Juridiska föreningens i Finland publikationsserie<br />
Nr 48 1980).<br />
484 Aarnio 2009, supra n. 410 at 278–279.<br />
485 Eriksson 1980, supra n. 483 at 1–4, 33–37, 65–75.<br />
486 Id. at 75–95, 106–107, 114–132.<br />
338
Finnish Marxist legal scholarship pointed out that legal concepts protected the values<br />
and interests of capitalist society, although they could protect some other values as well.<br />
The emancipa<strong>to</strong>ry and alternative aspect of critical legal scholarship was <strong>to</strong> point out the<br />
ideological limitations of law, of which people often were unconscious, and then <strong>to</strong><br />
demonstrate that law could be something else.<br />
Eriksson’s thesis was indeed the most systematic and comprehensive demonstration<br />
of the practical use of critical legal scholarship in Finland thus far. It also marked<br />
the culmination of the alternative analysis of law, 487 which created the basis for the later<br />
alternative legal scholarship. At the beginning of the 1980s, the demagogic criticism<br />
was over and the alternative scholars of the previous twenty years were either working<br />
outside the academy or making a career in it. In the latter case, their aging and their<br />
mounting academic responsibilities forced them <strong>to</strong> do something else besides criticize.<br />
Eriksson’s dissertation is a perfect example of turning a long career of critical scholarship<br />
in<strong>to</strong> a systematic piece of legal theory. Meanwhile, critical scholars had <strong>to</strong> <strong>fi</strong>nd new<br />
inspiration. Time and the generation had changed, and new trends were ahead. Legal<br />
scholarship had changed, but not markedly. However, critical legal scholarship was not<br />
over. The new decade proved <strong>to</strong> be a good time for it although in a different way than<br />
before.<br />
8 Conclusions<br />
8.1 A his<strong>to</strong>rical perspective on critical legal scholarship<br />
As I noted in the previous chapter, I applied the analysis of the his<strong>to</strong>ry of CLS on the<br />
his<strong>to</strong>ry of Scandinavian critical legal scholarship, because it reflected the same issues<br />
and involves the same problems. In this section, I will apply that same analysis <strong>to</strong> the<br />
Finnish critical legal scholarship for the same reasons and because there is no research<br />
on the subject. In the following, I will point out that various aspects have <strong>to</strong> be included<br />
in this his<strong>to</strong>ry, and that it should not be reduced simply <strong>to</strong> one fac<strong>to</strong>r.<br />
Finland experienced a relatively late but radical debate on the nature and purposes<br />
of legal scholarship in the late 1960s. In the middle of the decade, Finnish jurisprudence<br />
was already in a state of change. The old conceptualism was being pushed aside, the<br />
analytical school was gaining ground, and legal scholars began <strong>to</strong> pay more attention <strong>to</strong><br />
the particular meanings of legal concepts. The analytical school reflected realism in its<br />
criticism and analysis of legal concepts, but it was not particularly realistic regarding<br />
487 “Alternative legal scholarship” in Finland usually means that form of legal scholarship that Eriksson<br />
developed in the late 1970s and early 1980s (see Eriksson 1977, supra n. 474; 1978, supra n. 475; 1979<br />
supra n. 477; 1979, supra n. 481; 1980, supra n. 483). I refer <strong>to</strong> it as alternative analysis of law, since<br />
alternative legal scholarship means the non-traditional legal scholarship in general in this study.<br />
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judicial decision-making. The Finnish legal scholars were aware of judicial discretion<br />
and the personal input of the judge in the decisions, but these were not emphasized, and<br />
legal theory in general tried <strong>to</strong> minimize the impact of extra-legal fac<strong>to</strong>rs and present<br />
legal reasoning as being as rational and neutral as possible. The later analytical school<br />
brought aspects of hermeneutics and linguistic philosophy in<strong>to</strong> the picture and focused<br />
on the verbal phrasing of legal rules. However, the formalist elements of legal reasoning<br />
were important and the attention was given <strong>to</strong> legal rules and principles. Moreover, the<br />
majority of the profession remained more or less loyal <strong>to</strong> the traditional conceptualism.<br />
It was this relative formalism and conceptualism which the critical scholars attacked.<br />
Critical legal scholarship emerged in the latter half of the 1960s, and developed<br />
within a few years in<strong>to</strong> a critical front of legal scholars. Legal discretion and interpretation<br />
were well known facts, but Eriksson began <strong>to</strong> focus on the utter indeterminacy and<br />
the structural biases of legal reasoning. Eriksson’s criticism of legal reasoning was soon<br />
accompanied by the sociological approaches of Jyränki and Kivivuori, who worked on<br />
the gap between law in books and law in action and sought <strong>to</strong> demonstrate the irrelevance<br />
of traditional scholarship. According <strong>to</strong> them, legal scholarship needed a broader<br />
methodological basis and openness on the values and policies that were inherent in law.<br />
Jyränki <strong>to</strong>ok this direction during the 1960s, and by the end of the decade, he declared<br />
the rebellion on methods. Kivivuori, on the other hand, pursued a behavioral account of<br />
law. The turn of the decade then witnessed the transformation of the alternative and<br />
critical legal scholarship in<strong>to</strong> a mood of legal scholarship that sought <strong>to</strong> replace the tradition.<br />
The interview with the President of Finland gave an impetus <strong>to</strong> the debates on law<br />
and legal scholarship. The interview was indeed a curious case. As we saw, critical legal<br />
scholars drafted the questions and prepped the President, whose answers then complied<br />
precisely with their critical agenda. The critical notions that were brought up in the interview<br />
were not, of course, inventions by the scholars, but reflected the social radicalism<br />
and criticism of the 1960s. These ideas already existed, but the statements of the<br />
President made the legal profession hear them loud and clear. Social radicalism was<br />
thus of<strong>fi</strong>cially translated in<strong>to</strong> legal discourse. Kekkonen would not have participated in<br />
the occasion without a personal cause, which means that he obviously wanted <strong>to</strong> stir the<br />
political pot and provoke discussion. The legal scholars, on the other hand, acquired an<br />
authoritative statement for their cause and also provoked discussion.<br />
The 1970s was then the time of widespread alternative and critical scholarship.<br />
Critical legal scholarship was elaborating in<strong>to</strong> a philosophical criticism of legal reasoning,<br />
and alternative legal scholarship became relatively popular among young scholars<br />
who studied contemporary social problems and wrote legal treatises from sociological<br />
and empirical points of view. In many respects, the alternative approach was accepted<br />
as a sub-paradigm within the tradition, and despite the relative popularity of the alternative<br />
scholarship, the mainstream remained traditional. By the end of the decade, much<br />
of the radical criticism had waned, as had any major scale u<strong>to</strong>pian reforms of the legal<br />
system.<br />
340
A close connection between theory and practice, between jurisprudence and politics<br />
existed in Finland. Since the alternative and critical legal scholars also participated<br />
in legal politics, their scholarship was not simply academic theory. They worked on the<br />
reform of the Constitution, criminal law, and legal education, and promoted their insights<br />
in these areas. Their scholarship was politically oriented, and because it conformed<br />
<strong>to</strong> the radical social thought of the 1960s and 1970s, it had social relevance.<br />
Furthermore, a vast amount of progressive legislation was enacted during the 1970s,<br />
which was a consequence of the critical and alternative scholarship <strong>to</strong> a certain extent.<br />
The debate on the nature of legal scholarship sparked a series of events which<br />
transformed the basis of Finnish legal scholarship. However, the debate itself was more<br />
a symp<strong>to</strong>m of the wider transformation of society, scholarship, and culture, than an individual<br />
event within jurisprudence. The debate was a consequence of the transformation<br />
of the legal epistemology that the critical scholars adopted. Thus, the changes in<br />
legal scholarship need <strong>to</strong> be unders<strong>to</strong>od in the context of the wider social and cultural<br />
changes and as related <strong>to</strong> the cultural nature of critical scholarship.<br />
Critical legal scholarship was an academic counter-culture, reflecting the changes<br />
in society and culture. The 1960s was a time of the rise of social and cultural radicalism<br />
in Finland as well as elsewhere. Finnish society changed dramatically in the 1960s, following<br />
the massive growth of population, and the industrialization and urbanization that<br />
followed the migration from the country side <strong>to</strong> the cities. Youth culture began <strong>to</strong><br />
bloom, the working class and unions became powerful political players, and social institutions<br />
and structures were criticized. Critical legal scholars of the 1960s were young<br />
scholars, who for one reason or another, though not always, often adopted a leftist perspective<br />
on society. Leftist ideology of the 1960s was an ideology of criticism and reform,<br />
and thus the critical scholars began <strong>to</strong> point out the connection between social<br />
problems and law in their scholarship. Social radicalism emphasized these problems and<br />
saw them as consequences of the structures of the economy and power. Scholarship was<br />
politicized and adopted these notions.<br />
In many ways, critical legal scholarship was an aspect of the cultural radicalism of<br />
the 1960s. Critical scholars questioned traditional hierarchies and institutions and wanted<br />
<strong>to</strong> replace them with new ones which, they thought, were more democratic and realistic.<br />
Critical legal scholars were mostly young, searching for a position in the university<br />
structures during the turbulent 1960s, and they therefore sympathized and identi<strong>fi</strong>ed<br />
with the radical students. The generation of the 1970s was obviously a consequence of<br />
the radicals of the 1960s acquiring a position, but the earlier generation simply identi<strong>fi</strong>ed<br />
with the radical thought or considered it the most appropriate in the changing academia.<br />
Thus, they attacked the old structures and elaborated alternatives <strong>to</strong> replace<br />
them.<br />
The fact that the critical legal scholarship was both theoretically and practically<br />
relatively radical in Finland can be unders<strong>to</strong>od against the social and academic context.<br />
First, Finnish society had been polarized since the civil war, and in the 1960s the previously<br />
marginalized left became powerful. There were thus many things <strong>to</strong> criticize in<br />
341
society. The cold war situation gave powerful arguments <strong>to</strong> the left which they could<br />
apply as socialist rhe<strong>to</strong>ric in the criticism. Second, there had not been a realist tradition<br />
in Finnish jurisprudence which was more or less conceptualist despite the few realist<br />
influences. It was therefore easier <strong>to</strong> attack the traditional scholarship. These social and<br />
academic circumstances then provided the context for the international currents of critical<br />
scholarship.<br />
The theoretical basis of critical and alternative scholarship followed the rise of philosophy<br />
and cross-disciplinary research in the 1960s. The critical scholars did not share<br />
a theoretical basis, and were not influenced by any one single theory, but they all gathered<br />
up various strands of influences that suited their purposes and elaborated theories<br />
and arguments. Influences came from recent philosophical trends, Scandinavian alternative<br />
legal scholarship, American legal realism and political jurisprudence, and European<br />
Marxist literature. In addition, philosophical interest in the theory of science also interested<br />
legal scholars in reflecting on the “criteria of science” of their profession. These<br />
general trends led <strong>to</strong> a variety of critical legal theories, all emphasizing different aspects.<br />
To mention the most productive scholars, Eriksson was a philosopher and a<br />
Marxist scholar, and his literature was the closest <strong>to</strong> the American critical legal scholarship<br />
although there was no direct connection between them. Jyränki, Kivivuori, and<br />
Riepula were sociological jurisprudents with more or less Marxist elements, emphasizing<br />
his<strong>to</strong>rical, sociological, behavioral, and empirical aspects <strong>to</strong> various extents, Tolonen<br />
was a theoretical scholar with similar emphases <strong>to</strong> the previous three, and Blom<br />
was a critical empiricist and a realist. Yet there were many more, and even more appeared<br />
in the 1970s when legal scholars became more interested in and aware of Marxism<br />
and its potential and debated its theories. The critical theory of the Frankfurt School<br />
was not especially influential in Finnish jurisprudence, and Scandinavian influences<br />
were the most obvious in alternative criminal law scholarship and in encouraging methodological<br />
eclecticism in legal scholarship. Of course, here <strong>to</strong>o the influences were also<br />
usually of an indirect kind. Nordic scholars, for instance, participated in seminars and<br />
held study sessions, which obviously influenced the elaboration of the critical thought.<br />
Despite the close connection between scholarship and politics, critical and alternative<br />
legal scholarship emerged in university in the middle of social and cultural turmoil.<br />
Thus, the most important aspect was the scholar’s pursuit of academic fame. Although<br />
much of the alternative scholarship aimed sincerely at revealing the social failures, the<br />
ultimate motive of the scholars was obviously <strong>to</strong> transcend the tradition and <strong>to</strong> be<br />
unique. Critical scholarship was an indirect consequence of the social transformation<br />
and turmoil. It was an expression of individuality and academic antagonism, a way of<br />
self-realization and counter-culture, a method of provoking, criticizing, and creating<br />
something new. In its most extreme forms, it was a <strong>to</strong>tal discarding of the tradition. In<br />
Finland, the scholars had the opportunity <strong>to</strong> promote their cause and acquire actual academic<br />
signi<strong>fi</strong>cance in the reform of legal education, but succeeded only <strong>to</strong> some extent.<br />
In any event, many of the alternative legal scholars did acquire academic capital and<br />
342
tenure, and continued their careers. Some of them remained <strong>to</strong> alternative scholarship,<br />
whereas others moved closer <strong>to</strong> traditional scholarship.<br />
Critical legal scholarship was also a marginal phenomenon, and the majority of the<br />
profession remained relatively traditional. Alternative legal scholarship centering on the<br />
critical enterprise was much wider. It emanated from the same sources as the critical<br />
legal scholarship, but its individual motives were more modest. Moreover, it was not a<br />
speci<strong>fi</strong>c school or movement, but a new mood, a way of thinking about law and legal<br />
scholarship. Critical legal scholarship was simply the radical aspect of the alternative<br />
branch. Of course, critical scholarship was more than simply the published literature,<br />
being also a mood, including seminars and study groups. It was a legal thought, a critical<br />
consciousness of legal phenomena. The critical scholars perceived legal phenomena<br />
differently than the traditional scholars. They were left in the minority because their<br />
perspective was <strong>to</strong>o radical for the mainstream of the profession <strong>to</strong> accept. The far more<br />
moderate alternative strand was more popular because it did not threaten the basis of<br />
law, but simply extended the scope and methodology of legal scholarship.<br />
Finnish law did change in the 1970s, largely because of the alternative and critical<br />
scholarship. It is curious how effectively the critical and alternative scholars were represented<br />
on the reform committees. Indeed, they in<strong>fi</strong>ltrated the various committees and<br />
had a considerable impact on the course of the reforms. However, because they alone<br />
could not implement the reforms, these did not materialize according <strong>to</strong> the critical<br />
views in the end. Many laws were, however, reformed <strong>to</strong> conform <strong>to</strong> the critical thought<br />
of the time. Alternative views had also a considerable impact on criminal law, but that<br />
was because these notions reflected the general reformist social thought the most.<br />
8.2 The 1980s and critical legal scholarship<br />
Radical criticism and the insistence on altering the basis of the Finnish legal system and<br />
legal scholarship came <strong>to</strong> an end as the 1970s approached their close. By then, alternative<br />
legal scholarship had a <strong>fi</strong>rm position in Finnish jurisprudence, and education had<br />
changed and criminal law was changing. However, no radical break from the tradition<br />
had occurred. Whatever the motives of the critical legal scholars, it seems that the waning<br />
of their scholarship was a consequence of many things. Critical legal scholarship<br />
lacked a uniform theoretical basis and was therefore fragmented in<strong>to</strong> various subdisciplines.<br />
In addition, the times had changed by the late 1970s, and there were few<br />
young scholars willing <strong>to</strong> continue the demagoguery of critical scholarship, which thus<br />
fell out of fashion. Finally, the critical scholars of the 1960s and 1970s were making<br />
their careers at the university or elsewhere and became fatigued by their responsibilities.<br />
The u<strong>to</strong>pian idealism of youth was over, and the realism of adulthood prevailed. The<br />
time of great reforms was over. Critical legal scholarship did not disappear al<strong>to</strong>gether,<br />
however, but it changed.<br />
343
Indeed, there was no “rise and fall” of critical legal scholarship, even if the radical<br />
criticism came <strong>to</strong> an end as the 1980s progressed. Although the radical criticism was<br />
over, “critical legal scholarship” was still considered useful in pointing out the inequities<br />
in law, 488 and scholars still debated the nature of legal scholarship. 489 Furthermore,<br />
Finnish legal scholars became more interested in the American Critical Legal Studies<br />
Movement and its potential influences on Finnish jurisprudence. 490 In general, the interest<br />
moved <strong>to</strong>wards the rights of the citizen, 491 alternative interpretation of legal sources,<br />
and alternative argumentation. Old issues remained important and several new problems<br />
appeared. The emergence of the social private law in the late 1980s was the most obvious<br />
consequence of the alternative and critical legal scholarship of the 1970s. In this<br />
regard, legal scholars applied alternative analysis and argumentation <strong>to</strong> make the private<br />
law correspond with the actual circumstances of the parties, 492 and <strong>to</strong> place the doctrines<br />
of contract law in<strong>to</strong> the context of reasonability. 493 The purpose was <strong>to</strong> elaborate alternative<br />
methods of reasoning and argumentation that could help promote material equality<br />
through law, not <strong>to</strong> point out the irrationality of law. Radical criticism was missing,<br />
but critical consciousness was in the background of the research.<br />
The critical scholarship of the 1980s would be another s<strong>to</strong>ry completely because of<br />
the new orientation, and thus falls beyond the scope of this study. In any event, the radical<br />
criticism of the earlier decades faded away, and new methods of critical and alternative<br />
scholarship arose instead. Critical legal scholarship in the 1960s and the 1970s did<br />
change the basis of Finnish legal scholarship and law, although not <strong>to</strong> any radical extent.<br />
These decades were, nevertheless, the liveliest time of debate on legal scholarship<br />
in Finland and were important for the way legal scholarship is unders<strong>to</strong>od <strong>to</strong>day.<br />
488 Thomas Wilhelmsson, Uppgifter för en kritisk civilrättslära, Oikeus 2/1982, 119–124.<br />
489 See Oikeus 3/1982.<br />
490 Juha Pöyhönen, The Critical Legal Studies Movement ─ yhdysvaltalaista vaih<strong>to</strong>eh<strong>to</strong>ista lainoppia,<br />
Oikeus 1984, 90─106.<br />
491 See Oikeus 4/1984.<br />
492 Thomas Wilhelmsson, Social civilrätt: Om Behovsorienterade element i kontraktsrättens allmänna<br />
läror (<strong>Helsinki</strong>: Lakimieslii<strong>to</strong>n kustannus 1987).<br />
493 Juha Pöyhönen, Sopimusoikeuden järjestelmä ja sopimusten sovittelu (<strong>Helsinki</strong>: Suomalainen lakimiesyhdistys<br />
1988).<br />
344
VI Conclusions<br />
1 A theoretical perspective on critical legal scholarship<br />
In this <strong>fi</strong>nal chapter I will conclude the arguments of the book and respond <strong>to</strong> the questions<br />
asked in the introduction. First, I will assess the nature of the critical legal scholarship<br />
theoretically and thus demonstrate its essence. I will point out that critical legal<br />
scholarship ought <strong>to</strong> be viewed as a wide, cultural phenomenon, not reduced <strong>to</strong> a single<br />
fac<strong>to</strong>r. Second, I will compare the critical scholarship of the United States, Scandinavia,<br />
and Finland. I will <strong>fi</strong>rst compare the Nordic Countries and the United States and then<br />
the Scandinavian countries and Finland. By analyzing the substance and the influences<br />
of these movements, I will show the similarities and differences of the critical legal<br />
scholarship in these countries. Third, I will reconstruct the his<strong>to</strong>rical development of<br />
critical legal scholarship. I will point out that it was a product of many currents of the<br />
postwar era, and rather a continuation than a break in the development of the jurisprudential<br />
tradition, although it meant intensi<strong>fi</strong>cation in the dynamic of that development.<br />
This his<strong>to</strong>rical reconstruction will further illuminate the essence of critical scholarship.<br />
The central argument of this book is that the critical legal scholarship of the 1960s<br />
and 1970s can best be described as a cultural movement. It is precisely the neglect of<br />
the cultural and epistemological aspects of critical legal scholarship that has prevented<br />
the previous studies from seeing it in a perspective which would allow a thorough understanding<br />
of the movement. Since critical legal scholarship represented a counter culture<br />
<strong>to</strong> the traditional legal scholarship, not simply politics or radicalism, it differed<br />
from the tradition in fundamental respects. At the heart of the critical legal scholarship<br />
was a different kind of perception and comprehension of legal phenomena. Because this<br />
was so, critical legal scholars argued for fundamental changes in law and legal scholarship.<br />
This also meant that the dialogue between traditional and critical scholars was extremely<br />
dif<strong>fi</strong>cult. There was a collision between two fundamentally different views of<br />
law, set in the speci<strong>fi</strong>c context of academic legal scholarship.<br />
The difference in epistemology was the most signi<strong>fi</strong>cant aspect of critical legal<br />
scholarship. As we saw, this study uses the concept of alternative legal scholarship in<br />
referring <strong>to</strong> the effort <strong>to</strong> make the basis of traditional legal scholarship more sociological,<br />
empirical, and philosophical. Critical legal scholarship, on the other hand, refers <strong>to</strong><br />
jurisprudence which attempts <strong>to</strong> demonstrate the fundamental flaws in law and traditional<br />
legal scholarship. Although no strict division can be made, these conceptions help<br />
us <strong>to</strong> understand critical scholarship. The alternative legal scholarship that surrounded<br />
the critical enterprise emanated from the same sources but had more modest goals. Al-<br />
345
ternative scholarship was quite common during the 1960s and 1970s, critical scholarship<br />
being a radical expression of the alternative thought. Alternative scholars noted that<br />
there were problems the traditional legal scholarship could not resolve, but they were<br />
not after fundamental change, rather seeking <strong>to</strong> expand the methodology of legal scholarship.<br />
The critical legal scholars, on the other hand, argued that since law was tied <strong>to</strong><br />
the fundamental social controversies, minor changes would not suf<strong>fi</strong>ce. Rather, a complete<br />
change in society, law, and consciousness was needed. The situation can also be<br />
seen in the context of the theory of science, using the examples and concepts provided<br />
in the introduction <strong>to</strong> this book. If a thought collective is the common intellectual background<br />
of a profession, and thought styles are the methods of observation, then a paradigm<br />
is the model of research and argumentation between the thought collective and<br />
thought styles. Thus, the alternative legal scholars were after a paradigmatic change,<br />
whereas the critical scholars sought <strong>to</strong> change the thought collective and thought styles.<br />
The critical conception of perception also illuminates the difference in epistemology.<br />
For the critical scholars, empirical observations as such were neither true nor false,<br />
but were unders<strong>to</strong>od in accordance with values, conceptions, and presuppositions,<br />
which, however, were contingent. They were subjective <strong>to</strong> a certain extent, but often<br />
restricted by the social and legal consciousness. The emphasis on the structural connections<br />
of knowledge was important for critical scholarship, because social and legal consciousness<br />
was seen <strong>to</strong> impose presuppositions on perception and comprehension and<br />
determined the validity of values and concepts. Personal knowledge and consciousness<br />
were thus structurally conditioned. The critical scholars sought <strong>to</strong> demonstrate the restrictive<br />
and hidebound character of modern legal thought, as well as its impact on law<br />
and the knowledge of law.<br />
In a sense, then, the controversy was about differences in epistemology and consciousness.<br />
Since the thought styles of the critical legal scholars were different than<br />
those of the traditional scholars, their images of legal phenomena differed fundamentally.<br />
The critical scholars thought that the traditional thought collective had been driven<br />
in<strong>to</strong> a crisis because its thought styles could not access the true essence of law. Critical<br />
legal scholarship followed this realization and sought <strong>to</strong> expose the fallacies of the traditional<br />
scholarship and reveal the true essence of law beneath the ideological surface.<br />
Since the ultimate goal was <strong>to</strong> alter the fundamental notions about law, the critical<br />
scholars attacked the fundamentals of law, legal scholarship, the rule of law, and legal<br />
education, and sought the causes of the modern de<strong>fi</strong>ciencies in the roots of the problems.<br />
Because of this ambitious endeavor, a complete change was needed, which is why<br />
their criticism was so comprehensive.<br />
346
2 Comparative perspectives on the United States, Scandinavia, and Finland<br />
Realist legal scholarship and sociological jurisprudence had a <strong>fi</strong>rm position in the United<br />
States in the early 1960s. The legal realism of the 1920s and 1930s had pointed out<br />
the discretionary nature of law and the importance of the gap between law in books and<br />
law in action, even if realism was stripped of its most extreme elements and submerged<br />
in<strong>to</strong> the elements of traditional scholarship during the postwar years. At the beginning<br />
of the 1960s, there already was a realist and <strong>to</strong> a certain extent even critical tradition,<br />
which the debate on neutral principles demonstrated. In the 1960s, then, the majority of<br />
the profession was traditional, but there were also alternative legal scholars emphasizing<br />
more critical notions.<br />
The growth of critical legal scholarship followed basically the same path in the<br />
United States and the Nordic Countries. Legal scholarship was oriented <strong>to</strong>wards social<br />
and political sciences and philosophy during the postwar years, and critical scholarship<br />
was a radicalization of the alternative perspectives that emerged before and during the<br />
1960s. The 1960s also witnessed the emergence of critical legal literature, <strong>to</strong> which<br />
more philosophical and theoretical elements were added during the 1970s, making the<br />
criticism more fundamental. After the mid-1970s, the critical scholarship had become so<br />
popular that organizations were needed and established for it. The United States did not<br />
witness such an attack on legal scholarship as occurred in Finland, even if scholars<br />
talked about the crisis in law. This was so because alternative legal scholarship was<br />
more familiar in the United States in the 1960s. Legal realists had already launched an<br />
attack on jurisprudence, and their legacy persisted. Although the criticism <strong>to</strong>ward law<br />
and legal scholarship increased in the late 1960s, there was no need <strong>to</strong> repeat the realist<br />
attack.<br />
Critical scholarship was furthered by the cooperation between the critical scholars<br />
in all of the countries. In a certain sense, the Nordic Countries were quicker than their<br />
American colleagues in establishing organizations and law reviews for their cause, since<br />
by 1977, when the <strong>fi</strong>rst conference of critical legal studies was held, every Nordic<br />
Country had a law journal for critical legal scholarship. This probably follows from fact<br />
that the United States is a large country where cooperation between scholars is more<br />
dif<strong>fi</strong>cult than in the Nordic Countries where cooperation had been going on for decades.<br />
However, Scandinavian movements such as the Democratic Lawyers in Finland or the<br />
FiB-Jurists in Sweden were closer <strong>to</strong> the National Lawyers Guild than <strong>to</strong> CLS, the Retfærd<br />
being the closest <strong>to</strong> CLS. In a sense, then, the Scandinavian critical scholars organized<br />
faster but <strong>to</strong> a lesser degree than their American counterparts.<br />
The fundamental characteristics of critical legal scholarship were similar in the<br />
United States and the Nordic Countries. The emphasis was on the social construction of<br />
law and legal consciousness, the conservative character of traditional legal scholarship,<br />
the his<strong>to</strong>rical analysis of the development of law, and the indeterminacy and irrationality<br />
of legal reasoning. The criticism of legal education in the United States and Finland<br />
347
serves as an example. Despite the differences in legal culture and education, the American<br />
and Finnish scholars promoted relatively similar arguments regarding education, the<br />
Americans during the 1960s, and the Finns in the late 1960s and the 1970s. In short,<br />
they both argued for more social data and social sciences in legal education and for a<br />
functional, problem-centered approach. Furthermore, both the American and the Scandinavian<br />
studies on access <strong>to</strong> justice and legal aid pointed out that law was systematically<br />
biased <strong>to</strong>ward the rich. The arguments emanated from the basic aspects of alternative<br />
legal scholarship, namely, the emphasis on the gap between law in books and law in<br />
action and the cross-disciplinary methods in legal scholarship. Alternative and critical<br />
legal literature was substantially the same but differed in both form and detail in many<br />
senses. Critical legal scholarship claimed <strong>to</strong> expose the politics in law and legal scholarship<br />
and thus demystify law in all of the countries studied here. For the traditional view,<br />
this meant politicization of legal scholarship, but the critical scholars considered it<br />
simply as acknowledging an already existing situation.<br />
The similarities in the fundamental premises reflect the similarities in the deep<br />
background and the theoretical basis of critical legal scholarship. Critical jurisprudential<br />
movements always aim at demonstrating the incompatibility of the traditional scholarship<br />
with the social reality. Thus, reflecting their times, alternative and critical legal<br />
scholarship of the 1960s and 1970s articulated the arguments about the flaws in the capitalist<br />
order and emphasized the nascent human rights rhe<strong>to</strong>ric. At the bot<strong>to</strong>m of the<br />
critical thought was the idea of the structural inequality of society and law, the most<br />
essential argument being that the traditional legal scholarship could neither grasp the<br />
reality of the problems of law and society nor help <strong>to</strong> improve the existing circumstances.<br />
In the pursuit of grasping the legal reality, critical legal scholarship reflected similar<br />
trends. The use of the social sciences in legal analysis represented a renewed interest<br />
in legal realism. However, since critical legal scholarship was also a response <strong>to</strong> the<br />
criticism of realism that emerged after the Second World War, it extended the methods<br />
and reconsidered the arguments of realism. Unlike realism, however, critical legal<br />
scholarship was openly political, and brought structural elements as well as the consideration<br />
of values in<strong>to</strong> legal analysis. In this vein, critical scholarship was an attack on<br />
the value-neutrality and positivism of traditional scholarship as well. The critical scholars<br />
emphasized the position of values and policies in legal scholarship and questioned<br />
their traditional basis. These fundamental tenets reflected the rise of the critical academic<br />
scholarship and social criticism. Critical scholars represented the counter-culture of<br />
the tradition both in scholarly and social-political fashion. Thus, <strong>to</strong>o, critical legal<br />
scholarship was part of the polarization of academia in the 1960s and 1970s. Critical<br />
scholars rebelled against the tradition intellectually, politically, and with respect <strong>to</strong><br />
scholarship and academic hierarchies.<br />
The sources of alternative and critical legal scholarship were also basically the<br />
same in the United States and the Nordic Countries. The emergence of alternative legal<br />
scholarship followed the rise of cross-disciplinary research and the development of so-<br />
348
ciology of law and criminology. These new trends encouraged an understanding of law<br />
in context. The rise of critical legal scholarship in the late 1960s and during the 1970s<br />
reflected the radicalization of the alternative movements. The radicalization of the criticism<br />
followed the adoption of the Marxist and Weberian theories as well as the recent<br />
trends in Western philosophy in legal analysis. During the 1970s in particular, legal<br />
scholars began <strong>to</strong> apply various forms of philosophy <strong>to</strong> an increasing extent, the influences<br />
varying between the scholars, of course. On the basis of philosophy and social<br />
theories, critical scholars claimed <strong>to</strong> have found a fruitful way <strong>to</strong> analyze law and its<br />
relation <strong>to</strong> society. Critical scholars distanced themselves from the simple empirical<br />
analysis of law and began <strong>to</strong> analyze its essence and its connections with ideologies,<br />
values, and politics.<br />
The critical legal scholarship movements in the United States and the Nordic<br />
Countries did not influence each other, although they derived relatively from the same<br />
sources. With respect <strong>to</strong> the rise of alternative scholarship, the Nordic Countries followed<br />
the American example, and American sociology of law and critical criminology<br />
had an impact in Scandinavia. American political jurisprudence also influenced the constitutional<br />
scholarship in Finland, and some Scandinavian scholars, such as Aubert,<br />
Eckhoff, and Andenæs, were occasionally read in the United States. The rise of the alternative<br />
legal scholarship in the Nordic Countries thus reflected the extension of the<br />
basis of sources of legal scholarship, as well as the turn <strong>to</strong>wards American influences.<br />
The rise of the critical legal scholarship, however, mostly reflected the interest in philosophy<br />
and the radicalization of society, and the critical legal movements of the continents<br />
were not in <strong>to</strong>uch with each other before the 1980s. Nordic legal scholars, of<br />
course, held conferences and read each other’s literature, the foundation of Retfærd being<br />
the culmination of the Nordic cooperation.<br />
Even if the American critical scholars did not explicitly build on Marxism and<br />
some Nordic scholars did not refer <strong>to</strong> it, the basic tenets and arguments of critical legal<br />
scholarship relate it <strong>to</strong> the tradition of Western Marxism. Critical and Marxist legal<br />
scholarship of the 1970s was a continuation of the expansion of Western Marxism in<strong>to</strong><br />
the new <strong>fi</strong>elds of research, and it was also an attempt <strong>to</strong> bridge the gap between theory<br />
and politics. The cooperation between theory and practice was closest in Finland. It was<br />
a bit more problematic in Scandinavia, since there were serious efforts <strong>to</strong> close the gap<br />
between theory and political practice, yet the scholars were not as active politically as<br />
their Finnish colleagues. In the United States, the critical scholars implemented some<br />
measures <strong>to</strong> put their theoretical thoughts in<strong>to</strong> practice but they were not politically as<br />
active as the Nordic scholars. As contradic<strong>to</strong>ry as it may seem, then, critical legal scholarship<br />
both opened and closed the gap between theory and politics. Some scholars<br />
worked actively with practical matters in order <strong>to</strong> ful<strong>fi</strong>ll their theoretical ambitions,<br />
whereas others were more interested in constructing theory than changing society.<br />
Considering critical legal scholarship as a cultural phenomenon, we <strong>fi</strong>nd another<br />
unifying element in the deep background of critical thought. The critical scholars<br />
brought the element of the uni<strong>fi</strong>cation of the interpreting subject and the interpreted<br />
349
object in<strong>to</strong> the picture. The critical legal scholars sought <strong>to</strong> point out that the law was<br />
being constructed by the scholars who interpreted it. As the critical scholars realized the<br />
possibility of transcending the tradition, they <strong>to</strong>ok the task of transforming it as the purpose<br />
of legal scholarship. Since the critical legal scholars emphasized the position of<br />
legal scholars as parts of the tradition in both the United States and the Nordic Countries,<br />
they argued that the purpose of the scholars should be <strong>to</strong> unravel and change the<br />
tradition.<br />
A major difference between the critical legal scholarship in the Nordic Countries<br />
and the United States was that the American critical scholars in general put more emphasis<br />
on the philosophical analysis and criticism of law, whereas the Nordic scholars<br />
were more interested in the political use of scholarship. The explanation is that the political<br />
culture of the Nordic countries was more hospitable <strong>to</strong> socialism and the connection<br />
between political radicalism and legal scholarship was thus easier <strong>to</strong> achieve. American<br />
critical legal scholars did cooperate with the National Lawyers Guild but the <strong>to</strong>ne of<br />
their radicalism and activism was less socialist than in the Nordic countries. This does<br />
not mean that all Nordic critical legal scholarship was politically motivated. Rather, it<br />
simply means that the political rhe<strong>to</strong>ric was more familiar <strong>to</strong> the Nordic scholars than <strong>to</strong><br />
the American scholars. In any event, the connection between social and political activism<br />
on the one hand and academic scholarship on the other was closer in the Nordic<br />
Countries than in the United States.<br />
Furthermore, critical legal scholars in the United States did not have much faith in<br />
empirical legal scholarship, whereas the Nordic scholars were more prone <strong>to</strong> see the<br />
usefulness of empiricism. This can be explained through the development of the critical<br />
legal scholarship. In the United States, critical legal scholarship was a radical counter<br />
reaction <strong>to</strong> the sociological jurisprudence that had been on the rise since the late <strong>fi</strong>fties.<br />
In the Nordic Countries, however, critical legal scholarship was more a radical extension<br />
of the sociological jurisprudence, which had much shorter roots in Scandinavia<br />
than in the United States. In the Nordic Countries, critical legal scholars were closer <strong>to</strong><br />
the development of the sociology of law than their American colleagues who matured<br />
during the late 1960s and early 1970s in an environment in which sociology of law already<br />
had a <strong>fi</strong>rm ground and was not as powerful <strong>to</strong>ol of criticism as it had been. Because<br />
critical legal scholarship was an expression of cultural radicalism and individualism<br />
against the grain, the American critical legal scholars turned <strong>to</strong>wards philosophical<br />
criticism of law instead of empirical research. In the Nordic Countries, empirical and<br />
politically oriented research had more potential as a <strong>to</strong>ol of criticism. Of course, Nordic<br />
critical scholars did question the usability of empiricism without an analysis and criticism<br />
of ideology. This supports the conclusion that Scandinavian Marxist scholarship<br />
and American CLS were the most radical expressions of the critical legal scholarship<br />
and can be seen as equivalents.<br />
Another major difference, or similarity depending on the point of view, was the<br />
exiguity of Marxist and socialist rhe<strong>to</strong>ric in the American critical scholarship. At a fundamental<br />
level, however, the American critical legal scholarship could be characterized<br />
350
as neo-Marxist. Nevertheless, no major Marxist front arose in the United States, whereas<br />
the opposite was the case in the Nordic Countries, since almost every critical legal<br />
scholar advanced some aspect of Marxism, major Marxist fronts arising <strong>to</strong> stand up<br />
against the tradition. The Nordic scholars debated the various versions of Marxism as<br />
well as its precise meaning, whereas the Americans used various philosophical literature<br />
and theoretical approaches. And although the basis of critical legal scholarship rested on<br />
Marxism, scholars developed various theories, came <strong>to</strong> different conclusions, and criticized<br />
each other’s works. Moreover, Marxism was a background on which critical theories<br />
were raised, and no scholar besides Eriksson elaborated a systematic legal theory<br />
based on it. Thus, even if the premises of critical scholarship were shared, scholars differed<br />
in several respects.<br />
The differences in theories and arguments as well as the differences in the use of<br />
Marxism in the United States and the Nordic Countries can be explained if we understand<br />
critical legal scholarship as a cultural phenomenon. Because the criticism emanated<br />
from the same sources, and because the general aim of the criticism was the same,<br />
critical scholarship was the same at its most basic level. Its arguments were basically the<br />
same as was its image of the law, society, and legal scholarship. However, when the<br />
general characteristics are seen in more detail, the differences become clear. Marxism<br />
lacked a strong basis in the United States, becoming a <strong>to</strong>ol of the critical academy only<br />
in the 1970s. Thus, even critical scholars wanted <strong>to</strong> look for other directions while pursuing<br />
a critical method. Even the American New Left was neither Marxist nor Communist.<br />
In the Nordic Countries, however, both Marxism and socialism had stronger<br />
roots than in the United States, and thus the critical scholars were readier <strong>to</strong> use Marxist<br />
rhe<strong>to</strong>ric. Moreover, the approach of the scholars was basically the same since they<br />
shared the perspective on the law and the world, but the differences in their theories<br />
followed their interests and scholarly facilities.<br />
The differences in emphasis followed the national circumstances as well. For example,<br />
since race discrimination was a particular problem in the United States, much of<br />
the early alternative legal scholarship focused on racial problems, and a speci<strong>fi</strong>c branch<br />
of scholarship developed for that cause later. Crime and its control were problems everywhere,<br />
and scholars tackled it in each of the countries and brought up problems that<br />
were domestically relevant. The similar fundamental basis of alternative and critical<br />
legal scholarship thus differed depending on the personal interests of the scholars and<br />
the local circumstances. Stressing the differences of the scholarship in the countries, one<br />
might argue that the movements were more different than similar, but in general terms it<br />
seems that the critical legal scholarship in each country had a relatively similar basis.<br />
351
3 Scandinavia v. Finland<br />
Alternative and critical legal scholarship in Scandinavia and Finland originated from the<br />
same basis but were shaped by the speci<strong>fi</strong>c social, cultural, and scholarly circumstances<br />
of the individual countries. Roots always go further back, but suf<strong>fi</strong>cient is <strong>to</strong> say that the<br />
theoretical basis of alternative legal scholarship was created in postwar philosophy and<br />
social and political sciences. Many Scandinavian scholars studied in the United States<br />
and brought the methodologies of sociological jurisprudence with them. Scholars such<br />
as the Norwegians Vilhem Aubert and Thomas Mathiesen were pioneers in promoting<br />
sociological jurisprudence and cross-disciplinary legal research in Scandinavia, and<br />
sociology of law eventually became a strong discipline. During the 1960s, legal scholars<br />
became more interested in the social functions and effects of law, and in the causes of<br />
the gap between law in books and law in action. Besides the theoretical influences, the<br />
changes in society during the late 1950s and early 1960s encouraged more sociological<br />
jurisprudence. Criminology in particular provided a fertile ground for alternative legal<br />
research. By the beginning of the 1970s, there was a strong alternative criminology and<br />
sociology of law establishment in Scandinavia. Critical legal scholarship arose when<br />
elements of philosophy and the counter-culture of the 1960s were mingled with the alternative<br />
mood. It was then further molded by the strong left ideology and the rise of<br />
Marxism in the early 1970s.<br />
The basic features of alternative and critical legal scholarship in Finland and Scandinavia<br />
were the same. Alternative legal scholars used social science in legal scholarship,<br />
advocated empirical and sociological approaches, and concentrated on the social<br />
functions and effects of the law. Scholars often also worked in practice and tried <strong>to</strong> further<br />
their arguments by improving the legal status of the less privileged social classes.<br />
Similarities in scholarship were obvious in criminology, since this was the <strong>fi</strong>eld in<br />
which the cooperation was the most marked. Critical legal scholarship, on the other<br />
hand, sought <strong>to</strong> demonstrate the inevitable connection between social structures and<br />
law. During the 1970s, Marxism made a strong entrance in<strong>to</strong> legal scholarship and had a<br />
signi<strong>fi</strong>cant impact on Scandinavian critical legal scholarship. Scholars of course disagreed<br />
on the details but shared the theoretical basis.<br />
The most striking difference was that critical legal scholarship was more radical<br />
and political in Finland than in Scandinavia. In addition, Finnish scholars participated<br />
more actively in political matters. Although Scandinavian critical legal scholars spoke<br />
for socialism and social change, they were not as radical and enthusiastic as their Finnish<br />
colleagues, who advocated the establishment of a Soviet government in Finland and<br />
subjecting the courts <strong>to</strong> parliamentary control. Scandinavian legal scholars were not as<br />
concerned about the establishment of a socialist regime, although they did, particularly<br />
in Norway, argue for industrial democracy and a social conception of private property.<br />
In short, Scandinavian critical legal scholarship focused more on Marxist analysis of<br />
352
law and on the means <strong>to</strong> adjust society, whereas the Finns were more radical and were<br />
apparently after a more thorough social and legal change.<br />
What might explain the radical character of critical legal scholarship in Finland?<br />
First, there was the scholarly tradition. Legal realism was on <strong>fi</strong>rmer ground in Scandinavia<br />
than in Finland. Sociological jurisprudence began <strong>to</strong> make its way in the early<br />
twentieth century, and during the 1920s and 1930s it made a serious breakthrough in<br />
Scandinavian legal scholarship. Thus, at the beginning of the 1960s, traditional legal<br />
scholarship was quite realist and, furthermore, it had already faced a radical attack. In<br />
Finland, however, realism had not had such an impact. The efforts <strong>to</strong> introduce realist<br />
elements in<strong>to</strong> Finnish legal scholarship in the <strong>fi</strong>rst half of the century were largely rejected<br />
or ignored, and in the mid-1960s, although realist elements were brought <strong>to</strong> Finnish<br />
jurisprudence, traditional legal scholarship in Finland was more conceptualist and<br />
normative than in Scandinavia where methodological eclecticism was far more common.<br />
Furthermore, there had not been any radical attack on the jurisprudential tradition<br />
in Finland, and thus the <strong>fi</strong>eld was ripe for one. The radical attack on the traditional<br />
methods of legal scholarship and law that began in the late 1960s was therefore an expression<br />
of frustration with a relatively old-fashioned and conservative legal culture.<br />
The scholarly situation provides, however, only a partial explanation since it is also<br />
in need of explanation. In explaining the situation of traditional scholarship in the<br />
1960s, we will have <strong>to</strong> shift our his<strong>to</strong>rical perspective <strong>to</strong> the time of Finnish independence<br />
and the civil war, which had divided the society and suppressed leftist tendencies.<br />
By the 1960s, then, Finnish society was polarized. The social circumstances, as well as<br />
the fact that the Finnish Constitution was drafted in the aftermath of the civil war, provided<br />
a rhe<strong>to</strong>rical <strong>fi</strong>eld for the scholars where the legal profession could be related <strong>to</strong> the<br />
dominant class on which all the blame for the social shortcomings could be put. The<br />
leftist rhe<strong>to</strong>ric was, of course, a feature of the counter-culture everywhere, but in Finland<br />
it had a unique position because of the his<strong>to</strong>rical circumstances. The his<strong>to</strong>rical and<br />
geo-political relationship with the Soviet Union and the Cold War rhe<strong>to</strong>ric that followed<br />
provided further impetus for the Finnish scholars. In this respect, <strong>to</strong>o, anti-capitalism<br />
and pro-socialism were common features of the critical rhe<strong>to</strong>ric, but in Finland the his<strong>to</strong>rical-political<br />
circumstances gave them further weight.<br />
In spite of the differences, it is important not <strong>to</strong> exaggerate the Finnish uniqueness.<br />
The fundamentals were basically the same. In all of the Nordic Countries, critical legal<br />
scholars stressed the structural connections between social power structures and law, the<br />
importance of his<strong>to</strong>rical analysis of the construction of law, and the indeterminacy and<br />
the structural limitations of legal reasoning. The central argument was that law was a<br />
social construct, reflecting the structures of the economy and power, and therefore nonau<strong>to</strong>nomous<br />
and non-neutral. Different scholars had different emphases, and there were<br />
differences between the Scandinavian countries and between them and Finland, but the<br />
basic ideas were the same.<br />
The development of the alternative scholarship also showed similar traits. Scandinavian<br />
countries were the pioneers in sociology of law and alternative criminology, and<br />
353
Finland followed them in this, acquiring most of its direct influences from them. However,<br />
regarding critical legal scholarship, the development was parallel, depending on<br />
the perspective. Norwegian scholars had debated the relation between law and politics<br />
since the mid-1960s, and in 1968, the Swedish scholar Bolding and the Norwegian<br />
scholar Fleischer published their jeremiads on critical legal scholarship. In Finland,<br />
Eriksson had been developing a critical theory of law since 1966, and the rebellion on<br />
methods burst out at the end of the decade, which was a time of intense debate on the<br />
nature of legal scholarship. The dissertations by Kivivuori and Blom were especially<br />
important in intensifying the debates that continued in the pages of law journals. The<br />
Finnish critical scholars were also the <strong>fi</strong>rst <strong>to</strong> publish a manifes<strong>to</strong> on the wrongs of the<br />
control policy in 1967 and the <strong>fi</strong>rst <strong>to</strong> found a critical law journal in 1972. However,<br />
such matters had been discussed in Scandinavia since the beginning of the 1960s at<br />
least, and the association for penal reform was founded earlier in Sweden than in Finland.<br />
In many ways, the movements overlapped, and it is therefore dif<strong>fi</strong>cult, and pointless,<br />
<strong>to</strong> argue about who was <strong>fi</strong>rst.<br />
4 Critical legal scholarship as a his<strong>to</strong>rical phenomenon<br />
Critical legal scholarship was an academic manifestation of the counter-culture of the<br />
1960s, molded and transformed by the events of the 1970s. The social transformation<br />
thus provides the basis for the analysis. The 1960s was a time of social turbulence. The<br />
society was industrialized and urbanized <strong>to</strong> the extent that the industrial working class<br />
became stronger and the problems within the urban proletariat became more obvious.<br />
Counter-cultures had made their way since the war, and by the 1960s, the time was ripe<br />
for a radical break with the past. There was a large generation of young people, many of<br />
whom were not adapted <strong>to</strong> the social norms, an obvious gap between the of<strong>fi</strong>cial policies<br />
of the state and the social reality, and a super-power conflict at the global level, the<br />
leader of the Western world s<strong>to</strong>rming a poor country far away in Asia. Youth people<br />
thought that there was something amiss with the world-order, and resistance was about<br />
<strong>to</strong> arise.<br />
Besides the social changes, academia also witnessed dramatic events. Scholarship<br />
had changed since the war, and by the 1960s, alternative legal scholarship such as sociology<br />
of law and political jurisprudence were popular. In addition, the universities<br />
boomed with students, some of whom identi<strong>fi</strong>ed with and contributed <strong>to</strong> the counterculture.<br />
These students read critical scholarship, Marxism, existentialism, philosophy,<br />
and Beat, and talked about these things and what was wrong with the world and society.<br />
They adopted the identity of a mis<strong>fi</strong>t, of a person who antagonized the traditional authorities,<br />
fought for a better society, and pursued authenticity. The New Left was a political<br />
expression of the counter culture, a product of the youth frustration with the<br />
world, and an effort <strong>to</strong> make a difference in politics. Since the economic and social or-<br />
354
der was capitalist, the political left became a notion and rhe<strong>to</strong>ric of criticism and alternative<br />
solutions.<br />
The leftist perspective of alternative and critical legal scholarship was linked <strong>to</strong><br />
their reformist aims. Although one did not have <strong>to</strong> be a leftist in order <strong>to</strong> become an<br />
alternative or a critical scholar, most of them were, since leftism was the critical thought<br />
of the time, representing the social, political, and cultural counter-culture. And since<br />
critical scholarship often resembled leftism and counter-culture, many of the critical<br />
legal scholars adopted a leftist perspective whether they originally sympathized with it<br />
or not. This then led <strong>to</strong> the revitalization of Marxism. The young people of the 1960s<br />
generation <strong>to</strong>ok Marxism as their own, whether they actually read it or not, and <strong>to</strong>ok<br />
much inspiration from it. The pattern of the development of the critical thought was<br />
basically the same in the United States and the Nordic Countries, but every nation had<br />
its own unique characteristics that influenced the particular elements and details of the<br />
critical scholarship.<br />
Critical legal scholarship thus emanated in the latter half of the 1960s out of and as<br />
a reaction <strong>to</strong> the sociological jurisprudence that had become widespread during the decade.<br />
The alternative legal scholarship prior <strong>to</strong> the 1960s had sought <strong>to</strong> point out that law<br />
was unable <strong>to</strong> solve social problems as well as legal flaws. The aim was <strong>to</strong> improve the<br />
law so that it could be used as a <strong>to</strong>ol <strong>to</strong> organize society. Some parts of the alternative<br />
legal scholarship were more critical than others, but the overall impression was the same<br />
nevertheless. The alternative scholars wanted <strong>to</strong> integrate the elements of the social sciences<br />
in<strong>to</strong> legal scholarship. By the end of the decade, however, a more critical branch<br />
of scholars emerged who thought that the simple sociological analysis did not suf<strong>fi</strong>ce<br />
because it could not grasp the problems behind the observable reality. These scholars<br />
then began <strong>to</strong> pay attention <strong>to</strong> the structures of law and society as well as <strong>to</strong> legal consciousness.<br />
The critical turn in jurisprudence occurred in the <strong>fi</strong>rst half of the 1970s. In the<br />
United States, this meant that scholars began <strong>to</strong> emphasize the utter irrationality of legal<br />
reasoning as well as the way observation was structured by social consciousness. Because<br />
of these notions, the critical scholars argued, even the realist movements were<br />
unable <strong>to</strong> fathom the problems of law and society. In Scandinavia, the 1970s meant the<br />
Marxist turn, meaning that legal scholars began <strong>to</strong> use Marxism in analyzing the empirical<br />
data on law. These scholars stressed that despite the efforts that were made <strong>to</strong> improve<br />
social equality, the problems continued because the legal and social structures<br />
prevented any serious changes from occurring. Thus they began <strong>to</strong> critically analyze the<br />
structures within which law operated, so that they could understand the social functions<br />
and effects of law in a more critical sense than their sociological predecessors.<br />
The basis of the critical legal scholarship was thus laid in the 1960s, but its theories<br />
and arguments were elaborated and shaped during the 1970s. Legal scholars were<br />
generally exploring alternatives <strong>to</strong> the traditional scholarship in the 1960s and 1970s,<br />
and critical legal scholarship was the most radical and critical expression of this reformist<br />
thought. Critical legal scholarship was an intensi<strong>fi</strong>cation of change, a radical exten-<br />
355
sion of the criticism that already existed, not a radical break from the postwar development<br />
of legal scholarship, although it meant a greater move away from the tradition in<br />
Finland than in the United States and Scandinavia. Nevertheless, critical legal scholarship<br />
was more philosophical and political than any of the critical movements that preceded<br />
it, and its tenets and arguments were <strong>to</strong>o radical for the tradition <strong>to</strong> approve.<br />
In a scholarly sense, critical legal scholarship was a mixture of postwar developments.<br />
The emergence of empirical social sciences on the one hand, and the philosophical<br />
interest in the metaphysics beyond observable reality on the other coalesced in the<br />
development of critical legal scholarship. The alternative legal scholarship that developed<br />
during the 1950s and 1960s was an empirical movement, following the trends of<br />
empirical science and cross-disciplinary research. The emergence of the critical legal<br />
scholarship in the late 1960s and during the 1970s, on the other hand, was a radicalization<br />
of the alternative movement, following the radicalization of society and the transformation<br />
of scholarship. It was then more philosophical and cynical than its predecessors,<br />
and it sought <strong>to</strong> analyze the “truth” beneath the observable reality.<br />
The changes in society and academia that occurred parallel with the scholarly<br />
changes were also important. The general democratization of society, the rise of the<br />
human rights rhe<strong>to</strong>ric, and the recognition of the poor status of the social underdog all<br />
encouraged a more social approach <strong>to</strong> legal research. They also provided new career<br />
opportunities in the academy. The social changes facilitated the rise of the alternative<br />
and critical legal scholarship in the 1960s. As we saw, these were all common traits in<br />
the development of the critical scholarship, which sought <strong>to</strong> demonstrate the inequality<br />
of the modern system and the law within it. Academic scholarship responded <strong>to</strong> the<br />
many changes in society, and the student explosion accelerated the transformation of<br />
academia. The orientation <strong>to</strong>ward social sciences and the interest in promoting social<br />
rights were apparent. The development of critical scholarship marked the rise of the<br />
radical left and the radical criticism of the capitalist order, the Marxist-Weberian criticism<br />
of society, and the rise of the student radicalism and the counter-culture, which<br />
abandoned the existing lifestyle, authorities and hierarchies, and sought <strong>to</strong> establish a<br />
complete alternative <strong>to</strong> the modern system.<br />
It is precisely the academic arena where all the other elements of the critical scholarship<br />
are gathered. Although there was much diversi<strong>fi</strong>cation regarding the theories and<br />
arguments of the critical legal scholars, the unifying character was often leftism. However,<br />
this does not mean that we should reduce the whole critical enterprise <strong>to</strong> politics.<br />
Even though the political aspect was signi<strong>fi</strong>cant in the formation of the scholarly identity<br />
of the critical scholars, it was not the only reason for the rise of the critical scholarship,<br />
which was a gathering of those with similar ideas about law, society, politics, and<br />
scholarship. Although they often pursued political ends, these could not have been their<br />
sole purpose, because then it would have been more obvious for them <strong>to</strong> act in practice.<br />
Leftism was also rhe<strong>to</strong>ric, not simply politics.<br />
Fac<strong>to</strong>rs in the changes of scholarship were thus the scholarly tradition, the changes<br />
in society, culture, politics, and science, and the world view of the scholar. The political<br />
356
iases of the scholar did not determine the direction of his or her work, because a scholar<br />
had <strong>to</strong> balance between the scholarly tradition and his or her world view. Some<br />
scholars wanted <strong>to</strong> engage in changing the world and thus in politically oriented scholarship,<br />
while others wanted <strong>to</strong> put their personal preferences aside and concentrate on<br />
more traditional scholarship, and yet others wanted <strong>to</strong> alter the scholarly tradition without<br />
any extra-scholarly reason. Thus, critical legal scholarship should not be reduced <strong>to</strong><br />
a single fac<strong>to</strong>r, but has <strong>to</strong> be unders<strong>to</strong>od as a collection of ideas manifested in academic<br />
scholarship and the theoretical enterprise.<br />
Critical legal scholarship was partially a sincere attempt <strong>to</strong> reveal legal and social<br />
problems and <strong>to</strong> revise them in order <strong>to</strong> create a better society. It was also an academic<br />
enterprise of scholars who were, for one reason or another, frustrated with the university<br />
or the law faculty and wanted <strong>to</strong> have their say on the issues. Thus, they tried <strong>to</strong> acquire<br />
academic reputation, which was not necessarily of immediate bene<strong>fi</strong>t <strong>to</strong> them. They<br />
were rather after an original and authentic self as a legal scholar. In the most fundamental<br />
sense, critical and radical thought was an academic life-style, and critical legal<br />
scholarship was an academic counter-culture.<br />
Fundamentally, critical legal scholarship emanated from the same sources in the<br />
United States and Scandinavia. On the one hand, critical legal scholarship was a response<br />
<strong>to</strong> the social and political problems which were identi<strong>fi</strong>ed in the radical upheaval<br />
and in the demands of participa<strong>to</strong>ry and economic democracy. On the other hand, it was<br />
a response <strong>to</strong> the epistemological criticism of the liberal capitalist state, which <strong>to</strong>ok the<br />
values of the contemporary society as given and excluded all consideration of alternative<br />
values. The critical scholars sought <strong>to</strong> demonstrate that social values and institutions<br />
were conventional and contingent and these impulses were then realized within<br />
academia in the critical pursuit <strong>to</strong> transcend the tradition.<br />
The motives of the scholars <strong>to</strong> engage in critical activities might have varied <strong>to</strong> a<br />
signi<strong>fi</strong>cant extent. Some wanted <strong>to</strong> pursue a just society, whereas others were interested<br />
in revising legal scholarship and elaborating a more competent theory. Yet, for some the<br />
whole enterprise was simply for the sake of criticizing the academic and scholarly traditions.<br />
To analyze the personal motives of each scholar would require thorough biographical<br />
examination, but for our purposes a more general analysis will suf<strong>fi</strong>ce. Critical<br />
scholarship originated in the realization of the discrepancy between legal education and<br />
the personal world view of the scholars. It is therefore the academic <strong>fi</strong>eld that provides<br />
the common background of the alternative and critical legal scholarship and helps us <strong>to</strong><br />
understand them as related <strong>to</strong> the general social and scholarly context and <strong>to</strong> the personal<br />
motives of the scholars.<br />
In the Nordic Countries, the signs of the fading of the critical scholarship were evident<br />
in the late 1970s, whereas in the United States the critical scholarship was becoming<br />
more popular. Critical scholarship slowly waned when the original scholars became<br />
<strong>to</strong>o preoccupied with their professional responsibilities or otherwise lost their interest in<br />
the critical enterprise, and when society changed <strong>to</strong> the point where the criticism of the<br />
fundamental basis of social values and institutions became less interesting and signi<strong>fi</strong>-<br />
357
cant. Of course, new generations of critical scholars emerged but these were not of the<br />
same magnitude as the one studied here. Critical legal scholarship continued but not at<br />
the same level. In the United States, however, the 1980s registered the zenith of CLS<br />
which lost its momentum only when the scholars were unable <strong>to</strong> <strong>fi</strong>nd a uni<strong>fi</strong>ed basis for<br />
their theory and when the critical scholarship began <strong>to</strong> lose its signi<strong>fi</strong>cance. Critical<br />
scholarship of course still continues, but in a more marginal form and subsumed under<br />
the general paradigm. Alternative legal scholarship that was a wider response <strong>to</strong> the<br />
social and cultural change, and the critical legal scholarship which was a more extreme<br />
manifestation of the period, did change the character of legal scholarship by opening it<br />
up <strong>to</strong>wards methodological eclecticism, even if no radical transformation occurred.<br />
The rise and development of critical legal scholarship reflected various social<br />
traits, but the movements should not be seen simply in the light of the social and political<br />
changes. It is important <strong>to</strong> take the scienti<strong>fi</strong>c and scholarly changes in<strong>to</strong> account as<br />
well. Besides the social and political changes, and besides the expansion of the methodology<br />
of legal scholarship in<strong>to</strong> the social sciences, philosophy, and Marxism, critical<br />
legal scholarship also represented a new kind of epistemology and world view. The<br />
problem of the previous accounts of CLS has been that they have focused on one aspect<br />
of the movement and neglected the encompassing, cultural aspect.<br />
Thus, the his<strong>to</strong>rical reconstruction of critical legal scholarship also answers the<br />
question concerning the essence of the criticism. Critical legal scholarship is best unders<strong>to</strong>od<br />
as a cultural phenomenon, because it grasps all of the aspects and brings them<br />
<strong>to</strong>gether in a way that creates a synthesis of the various currents of change. Critical legal<br />
scholarship was a counter culture that embraced the alternative lifestyle, the promotion<br />
of the rights of the citizen, the transformation of the basis of legal scholarship, the urge<br />
<strong>to</strong> develop new theories, philosophical interests, and intellectual criticism of the social<br />
order. The personal motives of the scholars varied, but the overall theme was the same<br />
for them. They wanted <strong>to</strong> pursue a counter-cultural identity in general and some individual<br />
element within it in particular.<br />
A problem of looking back <strong>to</strong> the 1960s and interpreting the critical scholarship is<br />
that the perspective often determines the outcome. Some see critical scholarship simply<br />
as political agitation, whereas others want <strong>to</strong> emphasize its theoretical and philosophical<br />
implications. For some, the critics were rebels without a cause, whereas others claim<br />
that they created the basis of modern legal scholarship. As my analysis demonstrates,<br />
however, critical legal scholarship was a broad cultural phenomenon incorporating various<br />
aspects, and only through an extensive analysis can we understand the essence of<br />
the movement. Critical legal scholarship of the 1960s and 1970s was a part of the wider<br />
transformation of culture, society, scholarship, and jurisprudence. It was an endeavor of<br />
scholars within a his<strong>to</strong>rical period, aspiring after an academic career, and responding <strong>to</strong><br />
the changes that surrounded them. We may never fully comprehend the motives of each<br />
scholar, but a thorough understanding is possible through a comprehensive his<strong>to</strong>rical<br />
analysis. As my his<strong>to</strong>rical analysis demonstrates, irrational motives may sometimes be<br />
the reasons for his<strong>to</strong>rical change. Furthermore, retrospective views may change our<br />
358
conceptions of the epochs of the past, and villains of the past may become heroes in the<br />
future and vice versa. Thus, the evaluation of the critical scholarship depends on the<br />
perspective of the interpreter. I have demonstrated that the critical legal scholarship of<br />
the 1960s and 1970s was a sum of various and complex fac<strong>to</strong>rs, and that the critical<br />
scholars were neither anarchists nor heroes. I hope I have done justice <strong>to</strong> my subject and<br />
encouraged the reader <strong>to</strong> seek the truth. For it does not matter whether the truth is “out<br />
there” or something we construct; what matters is that we keep searching for it.<br />
359
360
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428
Index<br />
Aarnio, Aulis 255–256, 260–261, 261, n.<br />
56, 263–265, 270, 272, 273 n. 118, n. 121,<br />
278–279, 281, 296–297, 318, 320, 325–<br />
326, 325 n. 410, 327<br />
Aarnio’s Circle 318<br />
Abel, Richard 86, 86 n. 259, 89–90, 118–<br />
119, 131<br />
Alanen, Aa<strong>to</strong>s 254 n. 21<br />
Albrechtsen, Erling 188<br />
Americanization 36, 253, 301<br />
Analytical jurisprudence in Finland 255–<br />
256, 256 n. 32, 260–261, 263, 270, 272,<br />
275, 281, 293, 333<br />
Analytical philosophy 184, 244 n. 446<br />
Andenæs, Johannes 157, 198, 204, 206,<br />
207, 207 n. 262, 211–213, 212 n. 285, 216,<br />
219, 221<br />
Andenæs, Kristian 249<br />
Anthropology 37, 65, 112<br />
impact on legal scholarship 61, 65, 65 n.<br />
131, 67, 77, 117<br />
Anttila, Inkeri 198, 198 n. 202, 301–302,<br />
306–308, 310<br />
Aro, Pirkko-Liisa 321<br />
Aubert, Vilhelm 11, 165–168, 165 n. 37,<br />
166 n. 43, 175, 175 n. 85, 176, 185, 192,<br />
192 n. 177, 197, 204, 204 n. 236, 208, 240,<br />
246, 349, 352<br />
Backman, Eero 11, 243, 266, 272, 279, 281,<br />
290, 298, 309–311<br />
Baker, C. Edwin 10, 91–93, 107, 124–125,<br />
124 n. 483<br />
Balbus, Isaac 113, 121<br />
Beard, Charles 13, 101 n. 335, 287<br />
Beat 43, 92, 354<br />
Becker, Theodore 55, 55 n. 62, 59, 62<br />
Behavioral sciences 51, 56–57, 59–61, 71,<br />
72, 77, 82, 112 n. 415, 273, 290<br />
Behavioralism 63, 105, 180 n. 111<br />
Behavioralist jurisprudence 56 n. 66, 57, 57<br />
n. 70, 61–63, 69, 70, 173–174, 307, 322,<br />
340, 342<br />
Bell, Derrick 136<br />
Bjarup, Jes 179, 179 n. 104, 192, 192 n.<br />
174, 230<br />
Blom, Raimo 11, 204 n. 237, 262, 264–265,<br />
270, 281, 286, 295, 306, 307 n. 314, 310,<br />
312, 312 n. 344, 328–329, 334, 342, 354<br />
Blume, Peter 11, 177, 186–187, 241<br />
Bodin, Göran 229<br />
Bolding, Per Olof 11, 170–173, 170 n. 64,<br />
171 n. 67, 68, 186, 233–235, 235 n. 405,<br />
259 n. 48, 354<br />
Bondeson, Ulla 206<br />
Bourdieu, Pierre 15–16<br />
Bratholm, Anders 170, 206, 216<br />
Brest, Paul 75<br />
Bruun, Niklas 11, 12 n. 51, 193 n. 181, n.<br />
184, 297, 316–317, 329<br />
Camus, Albert 15<br />
Civil rights struggle 41, 46, 46 n. 9, n. 11,<br />
47, 68, 74, 135, 138, 145<br />
Cold War 36, 40, 45, 50, 64, 159, 162, 342,<br />
353<br />
Conceptual jurisprudence 6, 31–33<br />
Conceptualism 3–4, 34, 113, 122, 175 n.<br />
85, 254, 263, 281, 305–306, 339–340, 352<br />
Conference on Critical Legal Studies 17,<br />
78, 96 n. 314, 118, 119 n. 451, 120, 148,<br />
149, 154<br />
Constitutional law 52, 57, 57 n. 74, 78, 99,<br />
103–104, 107–108, 119, 170, 170 n. 63, n.<br />
65, 215–222, 283–294, 283–285, 287–289,<br />
287 n. 198, 291–292, 297, 299–300, 314,<br />
333<br />
Consumer protection 48, 75, 233, 321–323,<br />
321 n. 390<br />
Continental philosophy 122, 148–149, 148<br />
n. 629, 153<br />
Contract law 69, 71, 100, 102, 154, 167,<br />
220, 232–233, 314, 320–323, 344, 326,<br />
333–336, 357<br />
Counter culture 2, 25, 42, 50, 92, 150, 161–<br />
162, 247, 253, 353–356<br />
critical legal scholarship as 16, 92, 125,<br />
150, 299, 341–342, 345, 354, 357<br />
429
Criminal law 2, 78, 81 n. 215, 99, 108–116,<br />
154, 166, 195–214, 219, 223, 225, 226,<br />
240, 272, 295, 296, 300–314, 323, 332–<br />
333, 335, 341–343<br />
Criminology 5, 23, 108, 113–116, 116 n.<br />
440, 136, 158, 195–201, 196 n. 194, 203,<br />
211–214, 216, 246–247, 278, 300–304,<br />
308–309, 313, 349, 352, 353<br />
Critical gender studies in law 141–142,<br />
230–232<br />
Critical Race Theory 10, 11, 135–137, 143,<br />
149, 155<br />
Dalberg-Larsen, Jørgen 11, 173, 174 n. 83,<br />
175 n. 85, 178, 182, 237, 244, 244 n. 446<br />
DETA-project 327<br />
Duxbury, Neil 17, 28, 29 n. 25, 78, 96 n.<br />
314, 125, 146 n. 622, 154<br />
Dworkin, Ronald 71 n. 167, 87, 124, 238 n.<br />
421, 336<br />
Eckhoff, Torstein 11, 165, 173, 176–178,<br />
179 n. 104, 215, 217, 219, 236, 238 n. 420,<br />
239, 239, n. 422, n. 423, 349<br />
Edling, Stig 205<br />
Edlund, Sten 167<br />
Eklund, Per 189–190, 235–236<br />
Elwin, Göran 11, 185, 185 n. 135, 204–205,<br />
207–208, 209 n. 268<br />
Empirical approach <strong>to</strong> law 21, 28–29, 71,<br />
81–82, 84, 109, 120–121, 133, 147, 176,<br />
185, 197–198, 197 n. 194, 204, 206, 226,<br />
229, 231, 233, 249, 255, 262, 264–265,<br />
269–270, 273–274, 278, 281–282, 318–<br />
319, 332–334, 340, 342, 345–346, 350,<br />
352, 356<br />
Environmentalism 48, 75, 107, 163, 220,<br />
253–254<br />
Epistemology 8–10, 21, 39, 78, 148–149,<br />
148 n. 631, 151, 153, 269, 276, 293, 341,<br />
345–346, 358<br />
Epistemological turn 39, 149, 189<br />
Eriksson, Lars D. 11, 12 n. 51, 185 n. 135,<br />
190–191, 244–245, 244 n. 449, 257–261,<br />
259 n. 43, 261 n. 56, 265, 269, 271, 273 n.<br />
118, 275–276, 280, 283, 285, 288, 290,<br />
292, 295, 295 n. 245, 308–311, 328–331,<br />
334–339, 336 n. 477, 339 n. 487, 340, 342,<br />
351, 354<br />
Esser, Josef 238 n. 421<br />
Existentialism 43, 98, 147, 354<br />
Faulkner, William 16<br />
Feinman, Jay 102<br />
Feminism 48, 138 n. 564, 163, 224, 252<br />
Feminist jurisprudence 10–11, 138–143,<br />
155, 230, 232<br />
Fleck, Ludwik 8, 8 n. 39<br />
Fleischer, Carl August 11, 170, 170 n. 65,<br />
172–173, 172 n. 73, 215, 217–222, 259 n.<br />
48, 354<br />
Fogelklou, Anders 11, 188, 242–243<br />
Formalism 26–30, 26 n. 6, 55, 96–98, 101,<br />
104, 122, 139, 169, 171–172, 177, 217,<br />
219, 222, 254, 278, 282, 286, 334, 340<br />
Frankfurt School 38–39, 148, 162, 183, 342<br />
Freedom of contract 28, 275, 314, 320,<br />
322–323<br />
Friedman, Lawrence 65, 71–72, 71 n. 167,<br />
81 n. 215, 82, 102–103<br />
Fundamental contradiction 129–130, 129 n.<br />
516, 131 n. 522<br />
Gabel, Peter 10, 121–122, 124, 148 n. 629<br />
Galanter, Marc 66–67, 67 n. 140, 91<br />
Grif<strong>fi</strong>ths, John 10, 86, 86 n. 259, 112–113,<br />
113 n. 418, 116<br />
Guiding standards 238–240, 238 n. 420,<br />
239 n. 422, n. 423<br />
Hauge, Ragnar 197 n. 194, 204 211 n. 277<br />
Havansi, Erkki 234 n. 396, 304<br />
Hefte for kritisk juss 225<br />
Heinonen, Olavi 265, 273 n. 118, 296, 298,<br />
306, 310, 328<br />
Helin, Markku 277 n. 139, 318, 320<br />
Heller, Thomas 92, 118<br />
Heydebrand, Wolf 133<br />
Holt, Wythe 101 n. 340, 133, 133 n. 539<br />
Horwitz, Mor<strong>to</strong>n 10, 12 n. 52, 98, 100–103,<br />
101 n. 340, n. 341, 118–119, 126–128, 127<br />
n. 500, n. 507, 151<br />
430
Hultén, Gösta 189<br />
Hurst, James Willard 68, 72 n. 174, 100–<br />
101, 102 n. 344<br />
Hydén, Håkan 11, 242<br />
Ignatius, Antero 277, 277 n. 139<br />
Industrial democracy 220–222, 246, 285,<br />
315, 352<br />
Jacob, Herbert 57, 59<br />
Jareborg, Nils 208, 212, 236 n. 414, 239<br />
Juss-buss 223, 223 n. 341, 226, 249<br />
Jyränki, Antero 11, 258, 261, 263, 265, 265<br />
n. 75, 284–285, 287–288, 291, 294, 323–<br />
324, 328–329, 340, 342<br />
Jägerskiöld, Stig 190<br />
Jørgensen, Stig 174, 174 n. 83, 178, 186,<br />
192, 232<br />
Kaijser, Fritz 235<br />
Kairys, David 117, 122 n. 470<br />
Kalima, Kai 315<br />
Kalman, Laura 101 n. 341, 128<br />
Kastari, Paavo 265, 287, 287 n. 198, 297<br />
Katz, Al 10, 98, 111, 113, 116, 130–131,<br />
131 n. 522<br />
Kekkonen, Urho Kaleva 264, 265 n. 77,<br />
267, 282, 295, 325, 340<br />
Kelman, Mark 10, 125<br />
Kennedy, David 148<br />
Kennedy, Duncan 10, 12 n. 52, 67 n. 140,<br />
79, 83–84, 90, 93, 97–98, 118–119, 129–<br />
131, 130 n. 519, 131 n. 522, 133 n. 539,<br />
148 n. 629, 186 n. 141<br />
Kinoy, Arthur 10, 86<br />
Kivivuori, Antti 11, 12 n. 51, 260–261, 261<br />
n. 56, 263–264, 265, 269, 270–271, 273 n.<br />
118, n. 121, 274, 278 n. 146, 298, 310–311,<br />
340, 342, 354<br />
Klami, Hannu Tapani 31 n. 35, 266, 263,<br />
305, 309, 330<br />
Klare, Karl 10, 43, 89, 98, 122–123<br />
Knoph, Ragnar 239 n. 421<br />
Kofler, Judith 128<br />
Kolko, Gabriel 101 n. 335<br />
Konstari, Timo 333<br />
Krarup, Ole 11, 187–188, 187 n. 145, 191,<br />
236, 2436 n. 412<br />
Kronman, Anthony 95 n. 309<br />
Kuhn, Thomas 7, 8 n. 39, 39, 93, 145, 268<br />
Labor law 97, 123, 189–191, 193–194, 226,<br />
229, 252, 315–317<br />
Lahti, Raimo 269, 303, 305, 305 n. 300,<br />
309, 311<br />
Lauridsen, Preben Stuer 177, 180–181, 180<br />
n. 111, 236, 236 n. 414, 239, 241<br />
Law and development movement 51, 64–<br />
67, 70, 70 n. 160, 72–73, 78, 88, 91, 119,<br />
120, 167<br />
Law and economics 91–91, 91 n. 286, 117,<br />
125, 147, 154<br />
Law and society movement 10, 51, 67–73,<br />
78, 81, 89, 99–100, 102, 103, 118–119<br />
Leff, Arthur 10, 91, 95 n. 308, 131<br />
Leftism 40–41, 48, 78, 163–164, 247, 252–<br />
253, 268, 273, 299, 341, 355–356<br />
Legal aid 74, 97, 121, 131, 179, 223–227,<br />
223 n. 341, 226 n. 357, 229, 348<br />
Legal education 22, 26–30, 73, 77, 79–84,<br />
89, 120, 132–133, 133 n. 539, 138, 141,<br />
143–144, 150, 166 n. 44, 177, 186, 186 n.<br />
139, 234, 257, 272, 324–332, 341, 342,<br />
346, 347–348, 357<br />
Legal realism 3, 28–29, 32–34, 51, 68–69,<br />
77, 80, 84, 104, 145–146, 145 n. 615, 146<br />
n. 619, 147, 159, 164, 168–169, 171, 178,<br />
181, 228, 247, 257, 278, 280, 333, 342,<br />
347–348, 353<br />
Legal sociology 61, 165–168, 179–180,<br />
182, 185, 238, 242, 269, 303<br />
Lindgren, Janet 133–134<br />
Linguistic turn 37, 39–40, 153<br />
Linguistic philosophy 4, 174, 256, 270,<br />
278, 340<br />
Lipset, Seymour Martin 17<br />
Macaulay, Stewart 10, 71–72, 118–119<br />
MacKinnon, Catharine 142<br />
Mahkonen, Sami 319<br />
Makkonen, Kaarle 255, 256 n. 32, 266, 294,<br />
330<br />
431
Marcuse, Herbert 38, 42, 42 n. 87, 85, 107<br />
Marx, Karl 37, 37 n. 67, 85, 149<br />
Marxism 13, 37–40, 48, 50, 88–89, 99–103,<br />
113–116, 118–123, 125–126, 128, 147,<br />
152, 162–163, 168, 180, 182–183, 214,<br />
222, 223, 225, 229, 231, 240–241, 253,<br />
268, 290, 327, 337, 349, 354–355<br />
and critical legal scholarship 89, 100, 102,<br />
118, 119–123, 122 n. 471, 123 n. 472, 125,<br />
147, 153, 179, 179 n. 105, 208, 222, 223,<br />
226, 230–232, 235–236, 246–249, 271–<br />
272, 275–277, 286–289, 293, 308–310,<br />
315–316, 319, 327, 342, 349<br />
Marxist legal scholarship 10–11, 158–159,<br />
164, 182–195, 208, 223–224, 226, 228,<br />
240–245, 246–249, 275, 279–282, 337–<br />
339, 342, 350–352<br />
Marxist turn 114, 116, 184–185, 209, 223<br />
n. 343, 289, 335<br />
Mathiesen, Thomas 11, 178, 197–198, 203,<br />
206, 209, 224–225, 246, 352<br />
Mattila, Heikki 318–319<br />
Mazor, Lester 88, 92, 102<br />
Merikoski, Veli 292<br />
Metaphysics in law 33, 33 n. 47, 147, 183,<br />
188–189, 228, 248, 356<br />
Mikkola, Matti 11, 317–319, 337<br />
Miller, Arthur 10, 53, 55 n. 62, 81–82, 84,<br />
88, 104, 104 n. 360<br />
Mills, C. Wright 41<br />
Mäenpää, Olli 11, 276–277, 277 n. 139,<br />
279<br />
Mäkelä, Klaus 200, 307, 308–310<br />
Nader, Ralph 10, 81<br />
Nelson, Alvar 198, 203, 208<br />
Neutral principles of law 52–54, 53, n. 46,<br />
n. 48, 59, 82, 103, 125, 172, 178, 221–222,<br />
347<br />
New Deal 29, 29 n. 25<br />
New Left 2, 14, 40–43, 44 n. 96, 47–50, 83,<br />
89, 92, 98, 117, 120, 147, 150, 153–154,<br />
161, 163, 183, 247–248, 253, 351, 354<br />
New realism 169, 176–179, 183, 212<br />
Niemivuo, Matti 333<br />
Oikeus 225, 272–273, 334<br />
Olofsson, Gunnar 204, 204 n. 236, 307 n.<br />
314<br />
Os, Audvar 218<br />
Packer, Herbert 112–113, 112 n. 414, 113<br />
n. 418<br />
Paradigm 7–10, 8 n. 38, 15, 28, 34, 39, 60<br />
n. 98, 66–67, 78, 82–83, 87, 89, 91, 93,<br />
108, 115, 145, 145 n. 614, 151, 170, 175,<br />
175 n. 85, 186, 186 n. 141, 203, 253, 268,<br />
279, 281, 313–314, 346, 358<br />
Parsons, Talcott 96<br />
Phenomenological analysis of law 121–122<br />
Pirsig, Robert 16<br />
Political jurisprudence 10, 51, 56–63, 69–<br />
73, 77, 84, 105, 147, 167, 260, 262, 266,<br />
271, 274, 342, 349, 354<br />
Positivism<br />
legal 31, 87, 240, 247, 249, 263, 337, 348<br />
scienti<strong>fi</strong>c 36–37, 39–40, 147–148, 153,<br />
162, 169, 175, 182, 247–248, 263<br />
Pound, Roscoe 6, 28, 29 n. 24<br />
Poverty 41, 46–47, 69, 73, 108, 116, 117,<br />
163<br />
and critical legal scholarship 69, 91, 105,<br />
115<br />
Private property 34, 75, 128, 172, 215,<br />
217–218, 220, 222, 236, 284–286, 292,<br />
323, 352<br />
Process jurisprudence 52, 52 n. 42, 55, 55<br />
n. 63, 71, 78, 128<br />
Reich, Charles 10, 75, 85–86, 86 n. 249, n.<br />
250, 92<br />
Retfærd 11, 192–194, 226, 244, 347, 349<br />
Riepula, Esko 11, 273–274, 284, 290, 342<br />
Rissanen, Kirsti 333<br />
Roeps<strong>to</strong>rff, Lisbet 189<br />
Rontu, Helge 275, 275 n. 132, 310<br />
Roos, Carl Martin 232<br />
Rosenblatt, Rand 118, 133<br />
Ross, Alf 174–5, 175 n. 85, 177, 179, 179<br />
n. 104, n. 105, 188, 211–212, 238<br />
Rylander, Staffan 172, 229<br />
432
Salmiala, Bruno 302<br />
Salomon, Kim 12<br />
Sartre, Jean-Paul 122, 148, 149<br />
Scandinavian studies in criminology 158,<br />
196<br />
Scandinavian Studies in Law 158<br />
Schlag, Pierre 148–149<br />
Schubert, Glendon 57, 57 n. 70, 61, 70<br />
Seidman, Robert 65<br />
Seip, Jens 216–217<br />
Self-reported crime 109, 201, 301<br />
Shapiro, David 106<br />
Shapiro, Martin 54, 57, 59<br />
Simon, William 132<br />
Sociological jurisprudence 28–29, 31–32,<br />
34, 51, 57, 63, 65, 69, 98–99, 143–144,<br />
164, 166–168, 171–173, 176, 178, 182,<br />
184, 194–195, 197, 224, 225, 247, 248,<br />
259, 273, 279–282, 300, 318, 321–322,<br />
347, 350, 352–353, 355<br />
Structuralism 37–39, 93, 147, 231, 276<br />
and legal scholarship 123, 190, 230, 241–<br />
242<br />
Strömholm, Stig 171–172, 181, 235–237<br />
Sundberg, Jacob 244<br />
Sundby, Nils Kristian 11, 180–181, 180 n.<br />
107, 212–213, 228, 236, 238–240, 238 n.<br />
420<br />
Systemic theory of law 236–237, 241, 277<br />
Tushnet, Mark 10, 100, 102–103, 106–107,<br />
118–119, 123, 123 n. 472, 146<br />
Törnudd, Patrik 302, 310–311<br />
Unger, Rober<strong>to</strong> 10, 94–96, 95 n. 308, n.<br />
309, 96 n. 314, 98, 118, 145, 150–151<br />
Vaajala, Hannu 315<br />
Vic<strong>to</strong>r, Dag 11, 185, 185 n. 135, 205, 208,<br />
241–242<br />
Vietnam War 43, 45, 48–50, 117, 144, 152,<br />
161, 252<br />
Vikatmaa, Juha 265, 308<br />
Wanscher, Torben 11, 187 n. 145, 189–191,<br />
193 n. 181, 243<br />
Warren Court 49, 49 n. 33, 87, 104<br />
Wechsler, Herbert 52–53, 53 n. 46, n. 48,<br />
55, 55 n. 62<br />
Welfare state 75, 159–160, 163, 247, 249,<br />
251–252, 254, 286, 317, 320, 332, 334<br />
White, G. Edward 13, 144, 146 n. 619, 147<br />
Widerberg, Karin 230<br />
Wilhelmsson, Thomas 233, 321–323<br />
Zahle, Henrik 11, 179, 179 n. 105, 191,<br />
234–235, 234 n. 403, 235 n. 404, n. 405<br />
Zitting, Simo 256, 256 n. 32, 265<br />
Tala, Jyrki 303, 322<br />
“Tampere school” 268–269<br />
TANDEM-project 327<br />
Teleological jurisprudence 53, 53 n. 49,<br />
263, 271, 279<br />
Thought collective 8, 346<br />
Thought style 8–10, 8 n. 42, 346<br />
Tidsskrift för folkets rättigheter 226<br />
Tigar, Michael 128<br />
Tolonen, Juha 11, 263, 266, 272, 275–276,<br />
279–280, 342<br />
Trubek, David 54, 66–67, 86, 88, 118–119,<br />
120–121<br />
Träskman, P.O. 308–309, 311<br />
Tuori, Kaarlo 11, 12 n. 51, 293, 295 n. 245,<br />
328–329<br />
433
434