The Politics of Law: A Progressivist Critique ed. by David Kairys (review)

Book Reviews 149 Book Reviews David Kairys, ed. The Politics ofLaw: A Progressivist Critique 3rd ed. (New York: Basic Books, 1998). Pp.xiii + 738. The Politics ofLaw: A Progressivist Critique now appears in a third edition, one of the more broadly representative and lasting contributions of the critical legal studies (CLS) movement. The movement's challenge to traditional vocationally-oriented professional legal education in the United States began over twenty years ago, echoing, in some respects, the American legal realist school of the 1920's and 30's. While sharing liberal to left critical stances, the realists were informed by philosophical pragmatism while CLS has drawn from post second world war social theory and the deconstructive concerns of postmodernism. Interestingly, the many of the leading lights of both movements have become influential in elite institutions and policymaking in government. The book, which retains the core of earlier editions and adds fifteen new chapters, is divided into three parts. "Traditional Jurisprudence and Legal Education" situates the book by setting out understandings of the intellectual context and purposes of legal scholarship and education in the US. The second part, "Selected Issues and Fields of Law," which contains most of the new essays, covers a diverse range of private and public law subjects related to matters such as government, liberty, equality, social welfare, personal injury, property, business and labour. The final part, "Progressive Approaches to the Law," which includes a new essay on language, narrative and literature, provides broader, more theoretically-engaged perspectives on critical approaches to law. 150 Canadian Review ofAmerican Studies Revue canadtenne d'etudes amertcatnes In a collection so wide-ranging (the are 32 essays in total, excluding Kairys' introduction), it is impossible to do justice to all of them in a short review. The collection includes essays by Duncan Kennedy, Richard Abel, Robert Gordon, Morton Horwitz and Karl Klare which are now regarded as "classics" of the CLS movement. It is also worth noting that most of the essays are accessible to persons without a specialist background in law (despite the curious inclusion, within a useful index, of a table of cases, a rather lawyerly preoccupation). Some of them are written by scholars from other disciplines such as political scientist Austin Sarat and literary scholar Julia Epstein. Some further general comment on the impact and relevance of the volume is possible. The very title of the collection calls into question formal claims made about the rule of law. Although the relationship between law and politics is complex, a basic divide exists between those who maintain that the law is above politics and those that maintain that law is a peculiar formalized version of politics. The former tends to prevail in professional legal scholarship and vocational education. The assumptions surrounding their preoccupation with technical doctrine and expositional legal reasoning are brilliantly exposed in Duncan Kennedy's essay on legal education. Such a focus is thought to be central to the development of skills necessary for legal practice of dispute negotiation and resolution. As Kennedy points out, elaborate "professionalization" strategies are adopted to avoid questions about conflicting interests around the production and administration of laws. Critics, such as Kennedy, as well as those who examine the law from more scholarly interdisciplinary perspectives, are preoccupied with such questions, exploring how politics to some degree directly or indirectly, and in variously disguised forms, informs the definition of all laws and their administration. Canadians have become increasingly aware of the enormous public policy powers of the judiciary, and by extension, of the relationship between law and politics, since the adoption of the Charter of Rights and Freedoms in 1982. However, such matters are nothing new within the scholarly circles. Those studying constitutional law, for instance, have long been exposed to critiques of the role of the courts in federalism, in particular the issue of the largely decentralizing impact of judicial review of jurisdiction under the British North America Act, 1867. Nonetheless, one measure of the decline of our popular political culture of "deference to authority" is the manner in which Book Reviews 151 our courts have come under increasingly critical public scrutiny and subject to explicit political debate over the past two decades. Popular...