Critical Legal Histories and Laws (In)determinacy.

Author:Siegel, Reva B.
Position:Symposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

Introduction

Over the years, I have had the delight, adventure, and nourishment of having Bob Gordon as friend, colleague, and co-teacher. But for this Reflection, I was moved to excavate Gordon's role in my life before I ever met him, in those years when a first encounter with Critical Legal Histories (1) helped me find my voice as a law student in New Haven in the 1980s.

As I have pulled on the string of these memories, what strikes me is how Critical Legal Histories enabled some of my first work on the modernization of marital status law, even as I argued with the article's core claims about law's indeterminacy. Gordon asserted that law structured social life at the deepest levels; my work on marriage law illustrated how this was so. At the same time, my work on marriage law led me to resist Gordon's claim that law was indeterminate. The marriage cases demonstrated the many ways that inequalities in the law's interpretation and enforcement structured social life. Yet in the end my encounter with the indeterminacy thesis would shape the ways I came to understand law's role in enforcing inequality. My formative encounters with Critical Legal Histories raised questions about the plural ways histories can be critical.

Critical Legal Histories as Map

In the 1980s, I was a student at Yale Law School beginning to ask questions about gender in the law. Convinced that history offered a powerful resource, I set out to write a paper about the reform of the common law of coverture with my legal history professor Robert Cover. Cover was riveting but plainly uncomfortable advising me about gender questions.

Enter Bob Gordon. I stumbled across Critical Legal Histories while poring over the 1984 volume of the Stanford Law Review in the Yale Law School library. (2) The volume was like contraband in New Haven. I knew of no Yale faculty who then supported critical legal studies. (During my time at the law school, Owen Fiss backed into an uneasy embrace of feminism in the belief that feminists might demonstrate the faith in law of the civil rights movement.) (3) Positioned prominently after Peter Gabel and Duncan Kennedy's Roll Over Beethoven, (4) Critical Legal Histories was programmatic and methodical by contrast. Even so, it was a tough read. A formative read. Gordon's inimitable blend of erudition and insouciance invited me in; his high spirits beckoned me along.

Arguing for a critical legal studies-affiliated practice of historiography he termed "critical historiography," (5) Gordon advanced several claims that together would earn the article canonical status. (6) He (1) refused systems of explanation that divided law from society and invited accounts that "blurrfed] the 'law/society' distinction," flipping causal relationships posited by materialism and functionalism in order to emphasize (2) "the constitutive role of law in social relationships." (7) But if law was constitutive of the social, then what was law? Gordon explained that law was not restricted to events in state agencies and courts; it also structured relations "that people commonly recognize and enforce without officials anywhere nearby." (8) Law could structure relationships without officials presiding because law exerted power through reason--(3) law was "constitutive of consciousness." (9) As Gordon explained:

[T]he power exerted by a legal regime consists less in the force that it can bring to bear against violators of its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live. (10) Yet famously, even as Gordon invoked law's power to structure social life, he simultaneously emphasized (4) law's indeterminacy, its plasticity. In a key section entitled "Indeterminacy Located in Contradiction," Gordon committed legal history to chronicling law's fundamental contradiction:

[Law's] indeterminacy exists because legal rules derive from structures of Thought.... We are ... constantly torn between our need for others and our fear of them, and law is one of the cultural devices we invent in order to establish terms upon which we can fuse with others without their crushing our identities.... (11) Gordon's claims in Critical Legal Histories authorized me to write and provoked me to argue. I had arrived in law school in flight from literary studies dominated by cultural materialism, (12) and I embraced Gordon's critique. But to what end? It has been fascinating to reread Critical Legal Histories all these...

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