258
PARTISAN REVIEW
Review
by Mark Tushnet of the Georgetown Law School that, "in
any interesting case any reasonably skilled lawyer [which pre–
sumably includes judges] can reach whatever result he or she wants,"
given the broad array of the interpretive approaches available - "on
the wall" - to a member of the contemporary legal community. Prob–
ably the most explicit statement of this position, labeled by its
detractors "legal nihilism," is that of Harvard Law School's Duncan
Kennedy. "Teachers teach nonsense," says Kennedy, "when they
persuade students that legal reasoning is distinct,
as a method for
achieving correct results,
from ethical and political discourse in general
(i.e. from policy analysis) ... There is never a 'correct legal solution'
that is other than the correct ethical and political solution to that
legal problem." As Kennedy's own language suggests, it is entirely
mistaken to view him as a genuine "nihilist," since he appears to
believe in the existence of "correct" ethical values.
Kennedy and Tushnet are two of the scholars identified with
the Conference on Critical Legal Studies, one of the most important
sources of ferment within contemporary legal debate. Founded in
1977, the Conference is joined together by what Robert Gordon of
the Stanford Law School has called "our common disenchantment
with liberal legalism." Though there is no canonical definition of
"liberal legalism," the term includes reference to that aspect of
classical liberal ideology which sought to limit the domination of the
powerless by the powerful through the aegis of impersonal law . That
law, spelled out in a social contract or constitution, could thereafter
constrain judges of varying political persuasions. This is the basis
of the distinction between law and politics - and of the independence
of the judiciary from political control- which are basic predicates of
most liberal political thought.
But, of course, if one accepts the "hermeneutics of power ," then
there can be no more credible a notion of the "autonomy of law" (or
of legal texts) than of the "autonomy of the text" central to the pro–
gram of the New Critics in literature. Those who purport to defend
their activity by saying they are only carrying messages from
"within" the legal texts are merely deluding themselves (and possibly
attempting to delude others). Instead, they should recognize the
reality that they are either in the service of masters - Congress, state
legislatures, previous Courts, or whoever- who have bent the ma–
terials in order to establish their own domination or instead are
themselves
becoming masters, a new privileged elite presenting a
