By Bernard E. Harcourt

In his essay “The Role of Law in Critical Theory,” and in dialogue with Etienne Balibar and Camille Robcis at the Praxis 5/13 seminar on “The Common”, Mikhaïl Xifaras proposes an expansive view of law: Law is constitutive of our social reality, and will remain constitutive in the future. The common—in other words, the possibility of a shared communal regime that is neither state-owned nor private property, but where use is determined and managed by democratic decision-making—can, does most effectively, and perhaps must emerge from an internal critique of private law, Xifaras argues; the common is a product of legal transformation and would necessarily entail legal regulation. Law comes before, during, and after, and it forms the very substratum on which new property regimes can emerge, but must remain rooted.

Drawing on the Critical Legal Studies tradition, especially in its private law manifestations in the work for instance of Duncan Kennedy and Morton Horowitz, Xifaras proposes a “big” picture of private law—what could be called a vision of “Big Law.” This, then, may give rise to two political projects—one more imperialist, and the other more pedagogical. The first is to empower lawyers, especially private lawyers, to become the vanguard of social change because they are at the source of the internal critique of law, have the greatest technical expertise to understand and transform law, and are in the best position to oversee the eventual regulatory mechanisms. The second, a more pedagogic project, is to reshape legal education so that law students are taught the internal critique of law and empowered to instantiate the first, more imperialist project.

The term “Big Law,” of course, has another, more common, “street” definition. “Big Law” also refers to the set of large corporate law firms, such as Skadden Arps, Cravath, Kirkland & Ellis, Baker McKenzie, etc., that dominate and shape the flow of young attorneys and of the legal profession. In the Urban Dictionary, Big Law is defined as the “collection of huge law firms in major cities (particularly NYC) where thousands of Ivy Leaguers and honor students make six-figure salaries straight out of law school. They usually quit after a couple of years of virtual slavery, but if they stay in the game, they end up running the country.” That’s not that far off.

My argument here is that we cannot discuss a big critical theoretical vision of law without also considering the political reality of Big Law. The two are necessarily interconnected. For it is precisely the relationship between the two meanings of Big Law that effectively dooms the imperial political project—even though, at a purely theoretical level, critical legal theory is correct, and on a more limited ambition, the pedagogical political project is also necessary. But the fact is, the political economy of (Big) Law undermines the potential that radical political change will come from private lawyers engaging in internal critique the law. What this entails is that, in all likelihood, we will need to turn to other equally constitutive dimensions of social reality to create radical social change—and to give life to “the common”—while recognizing that any future political regime will necessarily be governed through mechanisms and processes that can be qualified as “juridical.”

A Displacement of the Debate

The rich debate at Praxis 5/13 between Mikhaïl Xifaras, Etienne Balibar, and Camille Robcis—in response to Hardt & Negri’s call for “the common” in Commonwealth and Assembly—focuses our attention on key theoretical questions, including whether the common can emerge from within law, whether it would eventually be regulated by law, and what role lawyers might play in the emancipatory project and its future elaboration. These are classic questions that go to the reach and scope of the law, the role of law in critical theory, and the place of jurists in social change. They raise crucial issues regarding institutional design, as Camille Robcis emphasizes.

The debate, however, needs to be displaced one notch—from the purely theoretical register to a more praxis-oriented dimension. The high theoretical discourse masks what is really at stake, namely where the real space of militant action lies. The theoretical agreements and (slight) disagreements between Xifaras and Balibar, and their broader theoretical engagement with Hardt & Negri, elide what is in my opinion the more fundamental and crucial question at issue: the question of political praxis, of strategy, and of the likely spaces of effective political struggle.

What I will suggest here is that the stakes of the dispute, ultimately, are not about the theoretical fineries of the liminal spaces of law, its boundaries, or even its shadows, but rather, that the stakes boil down to where it makes most sense to put our energies to seek social change: whether in the multitude or with the elite (of which lawyers, especially private lawyers, form part).

Of course, the obvious answer to that last question is “both”—that this is not an either/or, that we should work with the multitude and with lawyers, that we should encourage non-lawyers as well as lawyers, that we should be attuned to this in our pedagogy regardless of who we are teaching, etc. When we work with law students, we should emphasize the malleability of the law and stress the ability to reinvent law from within, etc.

But the reality—and here I will be blunt—is that law students who (predominantly) are headed to Big Law, and corporate lawyers making six and more figures, are not the most promising wellspring of radical social change.

In the first place, even within the legal field, we are far more likely to get more traction from the public law/public-interest-oriented law students and lawyers, than we are from the private lawyers. As between private and public law, hands down, more has been accomplished in terms of progressive social change through impact litigation and public-interest legal organizations like the NAACP Legal Defense Fund, the ACLU, the Center for Constitutional Rights, the Sierra Club, etc. Big Law was mostly responsible for the neoliberalization of the world through constitutional reform projects that worked in tandem with the IMF and the Washington Consensus project of imposing private property regimes in the former East Bloc and the global South. Let’s be honest and realistic.

But more importantly, and more broadly, as a matter of simple algebra, there are far more non-lawyers in this world, in the multitude, than there are lawyers. For the elite lawyers to seize the terrain of politics and jockey for a vanguard position, relying on their claim to technicity and expertise, can only have regressive or reactionary effects. To push out the multitude or militants through a claim to greater knowledge of the field of private law strikes me as counter-productive. There is, as Xifaras suggests, a conflict of the faculties. And it is truly disciplinary—in both senses of the term. My position is that when private lawyers try to gain an upper hand in the knowledge-power struggles within critical theory—vis-à-vis Hardt & Negri, for instance—they are doing a disservice to an emancipatory political future.

Another way to say this is that the imperialist political ambition of the internal critique of private law suffers from a heuristic fallacy—think here of the availability heuristic: we fail to consider the fact, first, that there is a minuscule number of trained private lawyers in society as a proportion of the overall population, and second, that the proportion of crits within that group is infinitesimal. So focusing on the legal transformation and the knowledge claims of private lawyers, over the essentially similar ambitions of political actors and the multitude, is a non-starter.

In effect, the political economy of (big) law is not promising for social change.

So, while I mostly agree with the theoretical claims of Xifaras and, more broadly, with Critical Legal Studies, and while I admire and support the pedagogical project of the internal critique of the law, I do not believe that we, critical legal theorists, should be teaching lessons to political activists or trying to seize the space of social change. That, I think, dooms the transformative project to failure. Let me explain in more detail.

Substantial Theoretical Agreement

Let me begin, clearly and adamantly, by emphasizing that I fundamentally agree with the three theoretical premises of the internal critique of law as reflected in the Xifaras-Balibar-Robcis debate.

First, Xifaras is surely right in his main contention, namely that law is indeterminate, malleable, and can be pushed into radical directions from within, both right and left. I agree with his central claim that law is “malleable and open enough to allow the thinking and practicing of radical alternatives from within the legal system” and that “alternatives spoken in the language of the Law can be no less radical, but for sure more concrete than others.” (1) In fact, that’s the position I explicitly stake out in The Counterrevolution, where I demonstrate how the rule of law has been twisted from within since 9/11 to achieve radical counterrevolutionary ends. As I argue in Chapter 12 there, titled “A State of Legality,” we do not live today in a state of exception, but in a state of legality, because the rule of law, in the end, is utterly malleable. It has been pushed to extremes in the last two decades—such that the summary execution of an American citizen abroad now satisfies due process, as does the indefinite detention of prisoners. Just stop and imagine how far that all is from the hopes and aspirations of American justice. Nevertheless, it has been rendered fully legal, fully constitutional—it fully satisfies the Due Process of the Fourteenth Amendment—because law is flexible and can be pushed in radical directions from within. As someone who has spent the past thirty years watching the law be deployed in radical ways in capital habeas corpus cases, I can personally attest to its malleability. And on matters of private law, I agree entirely with Xifaras that there is just as much pliability. Xifaras is undoubtedly right, for instance, that the free software movement “illustrates how greatly malleable legal technicalities are and […] how alternatives can be built from within.” (31)

Second, it is undoubtedly the case that “the common,” should it emerge, will be a fully regulated space—whether we decide to call the regulatory mechanisms “law” or “norms” or “management” or whatever. It will be regulated in a juridical manner. In this, Xifaras is correct: the evolution from private property, understood as bundles of rights, to some other conception of the common does not involve a passage beyond the law.

Now, I do not believe that Hardt & Negri, today, fundamentally disagree with this; they just use different expressions to speak of the democratic regulation and management of the common. In their newest book, Assembly (2017), Hardt & Negri respond to the critiques that critical legal scholars leveled at their earlier work, Commonwealth (2009), and they reformulate somewhat their proposal for a common—integrating the history of American Legal Realism and Critical Legal Studies, and the related understanding of private property as “bundles of rights,” as well as Harold Demsetz and the Chicago School economists (Assembly, 87-89). Their revised theory of the common does not differ that much from the original version, except to address specifically the question of the internal and the external of the law. As Hardt & Negri make clear in Assembly, any notion of the common must propose eventual ways of managing the common goods: there must be a democratic mechanism for determining its use—which would be a form of regulation. “We whole-heartedly endorce [Elinor] Ostrom’s claim that the common must be managed through systems of democratic participation.” (Assembly, 99). So the common will remains fully regulated, but regulated through democratic forms—democratic management, rather than in a monopolistic manner. There must be open and equal access, and democratic decision making—as we saw, Hardt argues, at Zuccotti Park.

This is a regulatory framework—whether we call it “juridical” or not. It functions as a legal language—as Balibar suggests in his post (page 9 of his paper): “This is the idea that, more than ever, an institution of the common (or a communist society) will need a juridical system of categories and rules, because it will need to regulate the distribution of moments (part of life), activities, and use values between the collective and the proper (or the individual). This amounts to anticipating a meta-level in the definition of “property”, which has essentially an ethical (or anthropological) function, but which must be formulated in the language of law, or in a legal grammar.” It relates directly to the design of institutions that Robcis explores in her contribution.

The dispute, then, if there is any, is simply in using a term like “management” or “regulation” versus “law,” “juridical,” or “legal regulation.” But that is inconsequential. As I argued in The Illusion of Free Markets, all economic spaces are regulated, fully regulated, and whether we call those forms of regulation “law” or “norms” or simply “regulation,” they are the mechanisms that distribute wealth and resources in society. That will not go away with the common. There will have to be democratic governance (assuming a democracy) or simply governance of the use of property. No critical thinker, I would like to believe, could possibly think that there can be an unregulated economic space. Hardt & Negri speak of institutions and organizations, and decision-making, and mechanisms to determine use. That’s what others, lawyers, call “law.” And the fact there can be no unregulated space is precisely why the “free market” is a myth, why “overregulation” is also an illusory trope, why “deregulation” is a euphemism for “reregulation,” and why Ronald Reagan was simply redistributing not deregulating in the 1980s.It is why neoliberalism is a regulatory mechanism, and not “deregulation.” If you agree with all this, as any critical thinker must, I believe, then there is really no consequential disagreement between Xifaras and Hardt & Negri. It is just a question of terminology.

Third, Etienne Balibar is also undoubtedly right to supplement Xifaras’ juridical intervention—regarding the constitutive nature of law—with a similar economic intervention. That is what Hardt & Negri do, I would argue, when they refer explicitly to the conjuncture of “capital and law,” when they argue that the two are “intertwined together,” or when they use the expression “the republic of property.” (Commonwealth, 8).The complementarity of economics and law is essential and necessary. And the conclusion that Balibar draws—namely that “law and economy are coextensive and mutually constitutive” (4)—is surely right.

But Political Disagreement

But it is precisely because I substantially agree on these three foundational premises, especially on the co-constitutive nature of social reality, that I reach a different conclusion: namely, that the theoretical masks a political problem.

Given that law and political economy are mutually constitutive, the crucial question then becomes one of prioritizing and privileging certain spaces of action over others. What’s at stake is not whether the internal critique of law is right, but rather whether to focus on particular (juridical) forms of intervention and to favor certain (legal) types of actors, or others. Marx’s privileging of political economy, to be sure, should not relegate law to the superstructure or belittle the place of law, or suggest that law is not constitutive. But that does not mean that, with regard to mutually constitutive elements, we might not want to privilege one over the other in our praxis. In other words, while law and economy are inextricably part of the analysis and revolutionary praxis (to which we may need to add other constitutive elements), the real question is whether we privilege one field or space over the other in terms of our militancy, or one set of actors or knowledges.

Another way to put this is to ask, what do we gain by privileging the legal dimensions of the constitutive law/economy nexus? First, we rope the lawyers back in. That’s important and can be useful. Second, we see new spaces to intervene and new ways to change society: many spaces of legal contestation open up to us. But what do we lose? First, there is a legal technicity that privileges law-trained experts—an elite. Second, and more importantly, we’re focusing on a corps of actors who may be more resilient to political influence because they often are subservient to corporate interests.

We need to keep our eyes on the prize: a just society. And the question then is whether critical legal scholars jockeying for the privileged knowledge-power position will help us get there. If the crit thesis is limited to the idea that we should render legal education critical, encourage law students and private lawyers to engage in critical praxis, then there is no problem. But if the ambition is more imperial—in other words, if the ambition is for the legal field to become, in some loose sense, the vanguard of the revolution—then I have to think that the “political economy of (big) law” will doom the project. The fact is, the field of private law and legal practice is dominated by the Wall Street lawfirms, by corporate interests, and by capital, and the law school pipeline for private law is straight to Big Law.

So the question is, among mutually constitutive elements, where will we get the greatest leverage? This is the perspective, I think, that Balibar may be getting at when he asks, and answers: “which are the forces, or the combination of forces, which, in a given situation, make it possible (inevitable) to cross the threshold, rise from the interpretation of the rules to their change? Is that the Supreme Court? Or the political movements? Or the social classes? […] I am tempted to say (having in mind civil rights, abortion, social legislation…): the “force” is a non-legal combination of legal agents and actions. But this is just a formula…” (6)

I would respond, not just “legal agents,” but rather “militants.” And I would not say “non-legal,” since the regulatory mechanisms have to be a central component of all this, but rather “strategic.” The force is a strategic combination of militants and actions that swell up from the multitude and that necessarily have political, economic, and legal ramifications. If we look around right now, especially across the pond with the spontaneous eruption of the “yellow jackets” for instance, or the rise here and abroad of a popular neo-fascist new right, it is not clear that private law or, more broadly, (big) law is the space of political agitation.

This does not mean that critical jurists should not continue their constitutive work of transformation. This does not diminish the need for critical legal praxis, in any way. It means that anyone who is strategically observing from up high—as a field commander or general would have viewed large-scale battlefield warfare—will probably be training their binoculars on what’s going on in the streets and boulevards right now, rather than the corporate law firms. And it explains why some people may maintain their sights on other (equally mutually) constitutive fields of revolutionary action. If the ambition is to create the common out of a private property regime, there must indeed be multi-faceted strategies, including important juridical critique and invention. Further, any movement towards a common will necessarily implicate legal transformation—from bundles of rights to something else that will be regulated and managed. Forms of legal regulation will necessarily be involved. Law will be constitutive, mutually so with economics, etc. But the forces that bring about the change, the paths of transformation, the fields of struggle may not be, most importantly, in the legal field. I doubt it will be private law scholars. (As a public law jurist, I would maintain that far more positive social change has been the product of public law reform, through equal protection, due process, and other constitutional and statutory (habeas corpus) channels—but I will leave that dispute aside).

A Broader Praxis

In conclusion, then, I would put the emphasis elsewhere. Not on the abstract theoretical question, but on praxis. The question is what to focus on in terms of our practical engagements. And in this respect, Hardt & Negri have something important to contribute: they are not necessarily saying that law is irrelevant, or that we can get “beyond” law. Rather, they are arguing that democratic forces (the multitude) are more likely to push us—through assembly and other forms of organizing—toward institutions that might enact and then manage the common. It is not an either/or for the law, it is a realization that the momentum will come from the multitude, rather than from the elite—and that the regulation and management would eventually fall on democratic decision-making.

I have struggled over these questions for decades. I rarely talk about this, but I was formed and cut my teeth on critical legal studies in the late 1980s and early 1990s as a law student at Harvard Law School under the guidance of my mentors and close friends, Duncan Kennedy, David Kennedy, Martha Minow, and other critical thinkers who were my professors, including Clare Dalton (my 1L contracts professor), Mort Horowitz, and Roberto Unger. I returned in the mid-1990s to Harvard in part to work with Duncan—who joined my PhD dissertation committee in political theory in the Government Department—and with Martha Minow, Terry Fisher, Janet Haley, Christine Desan, and others. I worked closely with my mentor Carol Steiker who pioneered Gramscian legitimation theory in death penalty jurisprudence. I was part of David Kennedy’s critical project, NAIL (New Approaches to International Law), in fact I literally nailed the NAIL dead with Günter Frankenberg, as he and I passed the hammer back and forth, when David decided it was time to kill that critical project. I continued on with the Institute for Global Law and Policy. But my subsequent decades in political and critical theory, under the guidance first of my dissertation chair, Seyla Benhabib, but then in constant, virtual conversation with Foucault and Deleuze, Nietzsche, and contemporary critical thinkers, and eventually all my editing of Foucault’s lectures and works, have churned those earlier years of critical legal study and added, say, multiple dimensions to the “constitutive” nature of the social world. So you can only imagine how much I struggle within this debate over the internal critique of the law.

But in the end, I do not believe it is strategically wise to build a praxis-for-all from a praxis for law students and private lawyers. Mikhaïl Xifaras ends his impassioned plea with: “Hâtons-nous de rendre la critique (interne) du droit populaire. » (37) I will certainly continue to try when teaching law. But at the broader political scale, I am skeptical that we would be able to render such an elite project truly popular. That particular conflict of the faculties and struggle over power-knowledge is unlikely to bring about radical social change. I would and will continue to place my energy and hopes in a broader critical space.