Categorical community.

• Author: Ortiz, Daniel R.

The communitarian alternative to atomistic individualism in legal theory reproduces the very error it assails in liberal individualism. Professor Daniel R. Ortiz argues that the poststructuralist critique of the sovereign subject as appropriated by communitarian legal theories has been only half-applied--used as the founding premise for the attack on the "metaphysical individualism" of liberal legal theory but neglected in the elaboration of the communitarian alternative. In asserting that alternative, these theorists envision monolithic and discrete communities as the foundation of social analysis and in so doing counter the anti-foundationalist premises of their theoretical projects. This problem, which Professor Ortiz terms "categorical community," is analyzed in the works of leading scholars of several movements: Duncan Kennedy's treatment of community in Critical Legal Studies, Ronald Dworkin's effort to reconcile communitarianism and liberalism, and Robin West's theory of relational feminism. Further, Professor Ortiz uses the conflict between categorical community and metaphysical individualism as the basis for a new analysis of the sameness/difference debate in feminist legal theory. Professor Ortiz urges a view of social identity that is more complex and attends to the multiplicity, intersectionality, and instability of the individual's relationship to the community.

In the last twenty-five years, much social theory has proceeded from unhappiness with the perceived metaphysical underpinnings of liberalism. Many political(1) and ethical(2) theorists have questioned what they see as the philosophical foundations of individual sovereignty, one of the most deeply rooted and widely accepted tenets of our political culture. Although their specific aims may vary, these theorists share an overall ambition: denying the ontological priority of the individual. In plainer terms, they all seek to undermine the notion that the individual is the basic, given unit of political and social analysis.(3)

The lawyers, of course, have followed--a little behind. Apart from law and economics, which rests on a deep commitment to individual sovereignty, nearly all the major movements in legal theory over the last twenty-five years have tracked these trends in social theory. Critical legal scholars like Roberto Unger(4) and Duncan Kennedy,(5) critical race theorists like Richard Delgado(6) and Patricia Williams,(7) and feminist legal theorists like Robin West(8) have all in one way or another reacted against the vision of people as sovereign individuals. Indeed, even liberal legal theorists like Ronald Dworkin,(9) Stephen Gardbaum,(10) and Stephen Holmes(11) have severely criticized ontological accounts of liberalism.

Many of the reconstructive projects of these contemporary legal theorists proceed from a contrasting communitarian position.(12) Instead of seeing society primarily as a collection of sovereign individuals, they see the community itself as sovereign and individuals as expressions of it. In short, if the received vision of liberalism takes the individual as primary and builds society up from there, these theorists take the community as primary and consider individuals as aspects of its structure.

In making this inversion, these theorists draw not only from longstanding communitarian political traditions but, more importantly, from contemporary postmodernism. Their critique of liberal sovereignty as well as their political reconstructions draw partly on the postmodern masters, people like Richard Rorty,(13) Michel Foucault,(14) and Jean-Frangois Lyotard.(15) Following these philosophers, contemporary theorists emphasize that all human existence, inquiry, and endeavor are necessarily situated, meaning that all aspects of our lives are shaped by the social contexts and institutions in which we live. These social matrices, moreover, are not metaphysical; they possess no transhistorical or transcultural legitimacy. They are, in postmodern lingo, purely contingent.

As a postmodern kind of guy myself, I largely agree with this picture. I do, however, have a problem with the particular vision of it that many contemporary legal theorists adopt. Unlike the political and ethical theorists they follow, the contemporary legal theorists pursue postmodernism incompletely and eventually fall prey to exactly the same type of difficulties they see in "Metaphysical Individualism"(16)--the belief that the individual is the irreducible unit of social and political analysis, the analog to the atom in molecular chemistry and to the quark in atomic physics. They too see atoms--indivisible, uniform, pure units of meaning and analysis--but at the level of community rather than the individual. Their vision of community is what I shall call "categorical." Each group forms a category that does not intersect, and thus does not disrupt, any other in any serious way, and each person within a particular category resembles every other in most significant ways. Communities, in this view, are largely discrete and homogeneous.

That much contemporary legal theory reenacts the types of practices it criticizes has implications not just for the practice of contemporary legal theory but also for the legal and social regimes it would help implement. By making a move similar to their opponents', these writers end up mistaking some of the questions they should ask and thus reach conclusions about how political and social life should be structured that still need defense to be persuasive. In particular, they seriously misrepresent the notion of identity, which is fast becoming fundamental to contemporary politics. Categorical community entails a lumbering and coarse vision of what people are about. Only by disaggregating and refining this vision, which requires jettisoning categorical community and metaphysical individualism both, can we hope to describe ourselves adequately and so begin to construct any type of helpful legal theory.

The following article proceeds in four steps. First, I show through discussion of Robert Bork's Neutral Principals and Some First Amendment Problems,(17) his now infamous Indiana Law Journal piece, what many contemporary legal theorists are attacking as traditional liberalism and how it metaphysicalizes individualism. Second, by considering two pieces by Duncan Kennedy, Form and Substance in Private Law Adjudication(18) and A Cultural Pluralist Case for Affirmative Action in Legal Academia,(19) I show how, despite his adoption of postmodern rhetoric, Kennedy eventually succumbs to the same problems he identifies in people like Bork. Third, by looking at two works by Ronald Dworkin, Liberal Community(20) and Law's Empire,(21) I argue that, despite entertaining a very sophisticated notion of community in the abstract, Dworkin recapitulates the error he sees in many communitarians when he tries to reinterpret and refound liberal legalism. Fourth, I look at one prominent strand of feminist legal theory, so-called relational legal feminism as exemplified by Robin West, and argue that it, too, commits the same error. I also hope to show in this part that the most central theoretical controversies in legal feminist theory--the sameness/difference and essentialism/antiessentialism debates--are organized around and try to grapple with this very issue of how to envision community. In the second, third, and fourth parts, I indicate what consequences follow and what difficulties arise from pursuing postmodernism incompletely. Finally, I suggest why categorical community has proven so popular as a critical strategy despite its difficulties.

One caution before I start. I have chosen the particular people I discuss because I believe both that they have made a difference in contemporary legal theory and that they typify to some degree the larger movements of which they are a part. Each of the individual movements of contemporary legal theory I discuss, however, is quite broad and encompasses wide variety and conflict. Although few orthodoxies exist, I do believe that the arguments I make here faithfully describe an important current in each stream.

1. THE METAPHYSICS OF LIBERAL LEGALISM

   Robert Bork's Neutral Principles and Some First Amendment Problems represents a great example of how not to write your way on to the Supreme Court. In this piece, Bork defends originalist constitutional interpretation against the Warren Court. As his attack on Griswold v. Connecticut,(22) the Warren Court case striking down state prohibitions against the use of contraceptives by married people, reveals, Bork's whole argument rests on assumptions of metaphysical liberalism. I focus on this particular piece because Bork makes his assumptions unmistakably clear and because his example shows how widespread, even among political conservatives, the assumptions of liberal legalism are.(23)

   Griswold's result is "unprincipled," Bork argues, because [e]very clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken [under an originalist theory of interpretation], the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure.(24) He then goes on to compare the suit in Griswold to a suit brought by a utility company and one of its customers to have a pollution ordinance declared unconstitutional. To him, "[t]he cases are identical."(25) He spins the comparison out:

   In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children. The law impairs their sexual gratifications. The State can assert, and at one stage in that litigation did assert, that the majority finds the use of contraceptives immoral. Knowledge that it takes place and that the State makes no effort to inhibit it causes the majority anguish, impairs their...