Fear of Freedom: A Polemic Against Policy Scholarship

Abstract

In this Article, Professor Schroeder critiques dominance of policy oriented scholarship in legal academy and argues that jurisprudential, theoretical, and doctrinal scholarship should have equal prestige and presence in academia if for no other reason that these forms of scholarship more closely relate to practice of law that will engage most of our students. Indeed, she argues that despite prevailing perception that policy oriented scholarship is pragmatic and hard-headed, other forms of scholarship have much greater practical application. Although she addresses her critique specifically towards recent trends in law-and-economic scholarship specifically, it is aimed towards policy oriented scholarship generally. She also suggests that critical legal scholarship might be revitalized by a new approach to theory informed by Continental speculative tradition originating with philosophy of Immanuel Kant and G.W.F. Hegel and continuing into twentieth century with psychoanalytic theory of Jacques Lacan. She contrasts thin concept of rationality adopted by both law-and-economics and critical legal studies movements on one hand with thicker one adopted by speculative thought on other. She suggests a reason for both overwhelming dominance of policy oriented scholarship among legal academics as well as estrangement of so much of legal academia from legal practice. Theoreticians and doctrinalists address law from perspective of those who are affected by or practice it. Policy scholarship, in contrast, makes recommendations to legislatures and activist judges who write law. As such, policy scholarship reflects a fundamental fear of freedom. Policy oriented scholars attempt to use law as a tool to subject others to their control in order to achieve what they see as society's objective purposes. Speculative theorists, doctrinal scholars and practicing attorneys, on contrary, seek to understand how law affects those who are subjected to it and to help them use law to achieve their own subjective purposes. Consequently, policy scholars seek a definition of rationality as predictable behavior. In contrast, speculative theory suggests that it is irrational behavior that is rigidly predictable and that rationality is nothing but capacity for pure spontaneity. In recent years, Richard Posner has loosed a blistering tirade on use of neo-Kantian moral theory in legal policy making. Prof. Schroeder shows that this attack is of a piece with utilitarian grounds of neo-classical economics that Posner preaches. Kant's theories of freedom and rationality are inextricably linked to his moral theory. Both are antithetical to economic understanding of rationality as ends-means reasoning. Posner is absolutely correct, therefore, that in order to adopt a theory of economic rationality one must also reject Kantian moral theory; utilitarianism's fear of freedom and a hatred of Kantianism are one and same thing. Nevertheless, despite her promotion of speculative theory in this Article, Prof. Schroeder wishes also partially to defend Posner from attacks of such neo-Kantians such as Ronald Dworkin. The type of detailed normative policy advice often proffered in name of Neo-Kantianism is, in fact, inconsistent with Kantian theory and speculative tradition it engendered. Prof. Schroeder also suggests one reason why earlier crit movement disintegrated: critical legal scholarship failed fully to realize implications of its position. As a result it implicitly repeated basic assumptions about law, rationality and markets adopted by law-and-economics movement, albeit coming to diametrically opposite conclusions. Consequently, crits unintentionally strengthened very legal position they purported to attack. Most importantly, she suggests why law-and-economics movement has consistently refused to acknowledge, let alone respond, to external criticism. From perspective of Lacanian psychoanalytic theory, law and economics, on one hand, and speculative theory and legal practice, on other, are literally speaking in two different discourses. The former policy oriented scholarship speaks the discourse of university whereas truly critical theorists, doctrinal scholars and practicing attorneys speak the discourse of hysteric. These two discourses can not communicate directly because they presuppose radically different audiences. Policy scholars claim to speak for governor, whereas theoreticians and doctrinalists try to understand speech of governed. Schematically, each is logical obverse of other.