By Robin West. Ann Arbor: University of Michigan Press. 1993. Pp. ix, 439. $49.50.
Robin West(1) is one of our most creative legal thinkers, and I, for one, am constantly inspired by her work; she shows us new ways to see. Her new book collects into a single volume nine essays published in the recent past -- over more or less a decade. As one would expect from such an author, the collection has a unifying theme, and, consequently, one is invited to reflect on the brilliance of West's performance over this last decade of our lives so as to assimilate the lessons she has taught us.
Although I say that her book has a unifying theme, perhaps it may be controversial for me to declare wherein that unity lies; certainly, the topics of the chapters are diverse. Consider, for example, the diversity of topics in the first four chapters. In Chapters One and Two, West criticizes Judge Richard Posner and his arguments for the moral significance of "choice," thereby challenging the fundamental axioms of the law-and-economics movement (pp. 27-87). In the third chapter, she criticizes those who see adjudication as procedurally "interpretive," thereby challenging the fundamental principles of Ronald Dworkin's jurisprudence (pp. 89-176). The fourth chapter addresses basic issues of feminist theory, and in it West criticizes those who would pursue equality of rights or power as a means of achieving "happiness" rather than set up "the pursuit of happiness" itself as the fundamental goal; thus, she challenges the fundamental tenets of radicals such as Catharine MacKinnon and mainstream liberal feminists who are too numerous to name (pp. 179-249). As one can see from this preliminary sketch, West casts her net across a broad range of topics, and so one must conclude that any unifying theme of her work is not to be found in a single topic.
In the introduction to her book, West offers us at least one key insight into her writing. She states that our task is to generate a "morally grounded legal criticism" and that this task is extraordinarily difficult because we are caught in a "critical dilemma" (p. 2; emphasis omitted). The dilemma is that the values that law expresses also shape our moral values and our political values; consequently, there is no obvious place "outside the law" from which we can criticize the law. In other words, we can leave the institutional venues of courthouses and law offices, but we cannot escape their influence; we can move in space, but the air we breathe will remain the same. Thus, the critic who claims to offer a morally grounded legal criticism may be offering nothing more than a legally grounded legal criticism.
Because legal values have "infected" moral values, the grand and honorable tradition of English legal positivism -- from Jeremy Bentham to H.L.A. Hart -- has been unable to fulfill its ambitions (pp. 3-4). The positivists urged that we separate law from morality when we analyze law so that we can criticize it, but they were blind to the obstacle of circularity. West credits the critical legal studies movement for describing this obstacle to legal criticism with brilliance, although she also believes that the critics have not come up with any convincing means of overcoming the obstacle (pp. 4-7).
Where, then, should we search for a way out? West answers that "the humanities" are the best source of guidance:
[T]his book defends both substantive and methodological claims. The
unifying substantive thesis is that, contrary to the skeptical claims of
both contemporary liberals and their post-modern...