Ep 9 – Kennedy by Orbelian Part One
Duncan Kennedy [00:00:08] You, leftist student, had an unequivocal preference as to the different types of practice that were best morally right, that would be on one complex level, most satisfying, but you had to recognize a series of harsh facts. Harsh facts, which would mean that [00:00:26]the great majority of students who identified as leftists in their third year in law school would actually go to work for corporate law firms. We’ve set up a situation which is catastrophic, which is we’re preaching our leftism. We’re really creating a community of left students in the law school. And we’ve created a situation in which their experience is they will not be able to do anything like what we are preaching to them is the only form of virtue. [28.2s]
Jon Hanson [00:00:57] Welcome to the Critical Legal Theory Podcast, where we hear from legal theorists and practitioners about the origins of and influences on critical legal theory. I’m Jon Hanson, the Alan Stone, Professor of law and Director of the Systemic Justice Project at Harvard Law School. In this episode, we’re bringing you the first portion of another interview with Duncan Kennedy. Here Craig Orbelian and Duncan discuss Duncan’s 1981 Root Room lecture based on his essay “Rebels from Principal.” In the written piece and the talk, Duncan attempted to deconstruct the psychic dichotomy prevalent among many leftist and left-leaning law students that one could either enter a career in public interest work or entirely abandon one’s values to achieve wealth and conventional success at a morally corrupting corporate law firm. He suggested the options did not have to be so black and white, and rebellion is possible in any context. Sly resistance, as he termed it, obviously wouldn’t do anything to change the systemic entrenchment of corporate power. Rather sly resistance within the law firm offered a way to deal with the perhaps unresolvable psychic situation of being enmeshed in something you perceive as profoundly illegitimate. Craig and Duncan explore and respond to a few of the many wide reaching critiques provoked by the Root Room talk. Throughout this episode, you’ll hear Duncan refer to people, events and scholarly works that impacted or interacted with CLS. You can find more information about most of those topics in the links in the show notes on our website. Here’s the interview.
Craig Orbelian [00:02:57] Professor Kennedy, I am so happy to be here with you today to talk about “Legal Education and the Reproduction of Hierarchy,” which you came out with in 1983. And hopefully we’ll also be able to discuss some other related works. Let’s start then with Rebels from Principle, which came out in 1981. In that piece, you mentioned that many law professors and students are subscribing to a misleading dichotomy between on the one hand corporate practice and on the other hand, public interest. After you started teaching, how long did it take you to notice that law professors and law students were adhering to this dichotomy? And once you did find out that this dichotomy was in the water, how did you deal with it?
Duncan Kennedy [00:03:53] So first of all, let me say I’m really happy to be here for the third of these. It’s really a kick. So I guess maybe I should say a word about the piece first. Rebels from Principle was published in the Harvard Law Bulletin, distributed free to every graduate of Harvard Law School. So it’s an organ of the Harvard Alumni Affairs Office under the Dean, designed to present a favorable picture of Harvard Law School for the alumni. And it’s a crucial tool in the sort of first level of the fundraising efforts of the school. I hope that’s making you wonder. So where did it come from? Well, in 1981, I guess the faculty concerned about student discontent and the lack of…less than academic contact between the faculty and the students arranged for a series of talks called The Root Room Talks. The idea was that members of the faculty would come and give just an open student audience, whoever showed up, a talk about a topic that was of interest to them, whatever it might be, like, say, music, Renaissance painting, the current senate race in Massachusetts, or their lives as corporate lawyers, or whatever. So that was the frame. And I was invited by…every member of the faculty was invited if they wanted to, if they’re interested in giving a room talk. I accepted and said I would be happy to give one. The year 1981 was the year after Jim Vorenberg became Dean. So it was a brand new dean with a new administration. Al Sacks, the dean between 70 and 80, having just retired. The talk was given in a moment of intensifying student activist interest among law students and critical legal studies was just taking off. The first conference had been in 1977, but in 79, 80 and 81, more and more students were becoming aware of the existence of a group of faculty members who were in some complicated and obscure way making trouble inside the school. The talk was mobbed. It was completely surprising to everybody, all the students, to me, and the two or three faculty members who were present. It was just extremely surprising that this could happen. How many does that mean? I think there might have been 100 students there, conceivably. And so the room was full. It was just packed. So I gave the talk and it was tape recorded and I had it transcribed, and I edited it. After that process, I was approached by the editor of the Harvard Law School Bulletin, who said, Would I be interested in publishing it in the Bulletin? The Bulletin is not an academic journal, obviously. It’s just the instrument of the alumni office. And I thought, That’s great, I’ll totally do that. Partly because–now let me just put this in here as a crucial fact–I saw it as incredible act of provocation. It was an intentional act of trying to give a talk that would be genuinely on a margin of acceptability to many different people. But when I gave the talk, I didn’t have any thought that it would ever be heard or read by any member of the bar, any graduate of Harvard Law School, period, or even most of the members of the faculty. It was basically for students. It was totally for students. When it was published, it produced for the Harvard Law Bulletin more letters than they’d ever received. The woman who was the editor told me it was more letters than they ever received in response to anything ever published in The Bulletin since she’d been there, which was just a few years. And the responses were on a wide spectrum. Many of the responses from older alumni were particularly outraged. The goal of the talk was to challenge an idea of left students. The talk was motivated by the sense that it was a very powerful psychic structure of my students. This is that, when it occured to me, of my classmates graduating from the Yale Law School in 1970? Of my students in 1972, when I started teaching her continuously right up to that moment. [00:08:21]One of the most basic ideas was if you didn’t do public service law, you went into a corporate law firm, and that was the end of the story. So you had an experience in law school of exposure to different types of practice. You, leftist student, had an unequivocal preference as to the different types of practice that were best morally right, that would be on one complex level, most satisfying, but you had to recognize a series of harsh facts. Harsh facts, which would mean that the great majority of students who identified as leftists in their third year in law school would actually go to work for corporate law firms. The number of students who did anything else but entry level into a corporate law firm was very small, as it still was very small. So the idea was this: We’ve set up a situation which is catastrophic, which is we’re preaching our leftism. We’re really creating a community of left students in the law school. And we’ve created a situation in which, their experience is, they will not be able to do anything like what we are preaching to them is the only form of virtue. So we demonized corporate law firms generally on the left, left students left faculty regarded corporate law practice as just the end of the world, really something morally corrupting. And the basic message of that was, if you did it, you were gone. You had crossed the line, you were a sinner, and there was really nothing left for your career as being a liberal except to vote for liberal Democrats and maybe do a little pro bono. [95.5s] And maybe in a Democratic administration, if you were lucky, you might get hired to do some government work. So that’s the situation to which the piece was addressed. I’d been totally aware of this because it was my own experience as a student, so that we students at the Yale Law School ten years before had completely seen it that way. And the demonization which was beginning then, that was really only the beginning — my own period in law school, 67 onward, was the beginning of this very strong sense of a morally catastrophic overall structure. But it only intensified through the seventies. It hadn’t gotten less, and in 1981 it was, if anything, stronger because now there were more radical students, that is, students who were more than left liberals or public interest oriented students who understood themselves to have a very serious…could be Marxist. But that was only some of them. One of the Marxists wrote one of the letters. Shelton was a really serious Marxist, and it was so amusing to see Shelton’s Marxist letter in the Bulletin. It just gave me a kick. And him too. He was very hostile to critical legal studies and very hostile because he thought of himself as a person with a commitment to some kind of revolutionary idea. And we were teaching people to sell out was basically his idea. But there were other forms of radicalism. There was cultural radicalism. The cultural radicals basically saw corporate law firms as the end, not just because they were politically reactionary, but because they were uptight, hierarchical, completely straight, obsessive compulsive, work obsessed, and so on. So the framework is, what do I have to say to people in that situation? I’d been aware of it for a long time.
Craig Orbelian [00:11:45] In the context of the classroom, the context of your interactions with other professors. Would you do anything to move students or professors away from the belief in this dichotomy?
Duncan Kennedy [00:12:00] Well, the talk is an attempt to move students away from the dichotomy. I wouldn’t give a talk like this in the classroom. I didn’t in the classroom or I don’t talk about law practice very much at all. I mean, I’m a doctrinal law teacher, so let me just try to answer the question of why I didn’t think the distinction was viable. And that has to do with the relationship between the forms of leftism in the U.S. after the sixties. So a very basic idea of left students in the late sixties and seventies of a very large number of them was the idea of the highly organized character of American establishment dominated elite social life in law school, in law firms, in the government and everywhere. So the idea was these different institutions are very powerfully organized to control what you can do and what you think about and so on. So the background idea was the situation of the young was they were going from the relative freedom of college and relative freedom of law school and sex, drugs and rock and roll or whatever they’re into into an adult world that was pretty tightly organized. And that was the source of the idea that progressive institutions, public interest, law firms, legal services were organized around political virtue. And they also were socially organized in a way that was different from the cultural structure of the big firms understood as factories, but also as generating a particular type of submission to partners and so on. [00:13:36]So if there was another strand in the new left, a strand which I associated myself then with very strongly and still do, it was the idea that rebellion is possible in almost any context. So rebellion is not the same as a revolution in which you think through and reverse all the structures in state power and take power. The idea was another activity, which is the activity of kicking against the traces, to use an old expression, or making trouble or not necessarily doing that in an overt way, but that it is possible to find communities and groups and subgroups and figure out ways in which even what looked like very, very firmly established power structures are vulnerable to being disrupted in some way. This idea was not that it’s a struggle for power in the sense of who controls the institution. It’s a struggle for the character of life in the institution, not for its formal power structure. So the idea is one’s life is different in a complex institutional setting. If one participates in little low level resistance activities which make life less hierarchical and less oppressive and if possible, get you to be less complicit in doing bad things. [85.1s] So the idea of complicity and doing bad things, I’ll come back to in a second. That’s the point of the story in the talk about my grandfather, which is an important part of the talk, because it very clearly situates me as a person who understands complicity, who feels complicity even generationally, because my grandfather did these various things representing Dow Chemical under circumstances when Dow Chemical was actually generating the Love Canal in Buffalo, in Niagara Falls, sorry, in Niagara Falls. So the idea was that students should not experience themselves as exempted from ever doing anything rebellious again once they’d taken the step of joining the firm. And that was partly motivated by the idea that students’ ambivalences about doing it. So ambivalence: public interest, not public interest. The desire not to do it was the excuse for doing absolutely nothing when you did do it. So I’ve now given up my virtue. The end is here, so now I can be whatever they want me to be or whatever I want to be in the part of me that always wanted to be rich and successful in a conventional way. So part of the idea here is, no, you don’t have the out that because it’s so evil and you had to do it, you can accede to it once you’ve stepped over the line. So it’s that very basic idea. Well, how does one propagate that kind of an idea in the classroom? This is the kind of thing that’s for a talk. But in the classroom, the basic idea is to teach law in a way that suggests a parallel idea. I’m not talking about what I thought then, and [00:16:45]I basically still think that that very basic message of law is that the judge, as a power holder, once he becomes a judge, is bound by the law. The lawyer, once he becomes a lawyer, is bound by the advocacy system and the duty to the client so that the judge in a system that is full of unjust laws, saturated by legal injustice, is in a position where he once he becomes a judge, he’s got to play by the rules. That’s the game and he’s got to do it. He’s given up the chance to be in any deep way a justice oriented advocate when he becomes a judge. The lawyer is the same once the lawyer takes on the role. [38.5s] Then you have the advocacy system and the duty of the client. These are topics for the classroom. [00:17:29]So the very basic idea of first year teaching for me was to argue that the idea that the judge was simply the prisoner of an unjust system was wrong and that over and over again there were options. So in learning private law contracts, property and tort law, it is constantly the case that you’re learning rules that were disputed and disputable and actors inside the system claiming to be just doing what the role required were in fact also political actors. So there’s a very direct analogy here. So the classroom message from that point of view was you don’t escape political responsibility by being an actor either in the role of the judge or in the role of the lawyer when you are implicated in doing bad stuff. On the other hand, it’s also true that there’s no pure domain, that the judge is totally in a situation where he will often or she will often feel complicit in doing something bad, and that that was really the right thing to do, to be complicit in doing something that was, under all the circumstances, doing the right thing. [68.6s] So that’s the analogy between the classroom and the talk.
Craig Orbelian [00:18:43] Going back to the specific ideas that you mentioned in the talk, you mentioned that even a young associate in a law firm can’t escape responsibility by saying that she’s totally sold herself out and therefore there is no hope for her. So how did you recommend in that talk for a young associate to escape this binary between saintliness and devilishness and instead find some way to bring a little bit of the saintliness into the hell of the law firm?
Duncan Kennedy [00:19:20] Well, on one hand, I very carefully didn’t make any specific proposals. My total experience of corporate law firm was the summer I spent working in DEBEVOISE in 1969, and I had a very strong sense of very strong, subjective reaction. How does this work? I was very interested in that, but I knew that I didn’t know enough about it to suggest what students ought to do. So to begin with, it’s a matter of dogmatic, principled belief a priori, that at least in my experience of modern American social life, up to 1981, it was never the case that you couldn’t do anything. And the demand for a list of things to do struck me as naive. I mean, obviously, how would I know? It depends on the circumstances. But there was a very concrete thing that was said in the talk, which is what produced the most reactions both in writing and also face to face reactions forever, which was the word sly. So the word sly very carefully said in the talks, completely on purpose. Very carefully preserved in the written version, the function of the word sly was to say, If you really believe the system is as illegitimate as you think it is — students with your demonized corporate law situation, which is hell in which virtue is impossible — then you ought to be willing to display a certain amount of institutional bad faith. You shouldn’t understand yourself as bound in your soul to be transparently either cooperative or resign. You ought to see another morally acceptable alternative for people who understand themselves to be in that kind of moral dilemma, which is then also, I think at the talk, I probably use the word conspire just in order to get, you know, a rise out of the audience. So the the background idea is in that kind of situation, you should do what everybody in these organizations is always doing about everything else. You should have back room politics, you should have corridors, you should have little consultations with your buddies about how you could make something happen, which would be understood as premised on opposition to management and the culture. Now, of course, this was instantly understood by law professors: “If he’s saying that about the law firm, he obviously must believe it about the law school, too.” [00:21:44]So what was interesting about it was it posed what is, I think, one of the most basic dilemmas of professional life, which is the question of the range of loyalty and identification that one should ever feel with one’s institutions, formal structure and culture and internal values. So the basic idea here is what it is to be a young, elite guy or woman in one of these institutions is to be in some kind of jeopardy in which you have to decide loyalty — what are its limits? — disloyalty — if disloyalty is permitted, what does disloyalty permit? [41.1s] And I see those as very classic dilemmas of life in organizational society. So the basic idea was to put that on the table, the idea of slyness. It was then, and it is today for people who are in power, in institutions of that type, that rely on a very complicated, trained personnel, doing very complicated work with an enormous amount of autonomy in situations that are hierarchical, but where there are major agency problems to use the law and economics phrase. They’re both very hierarchical, but agency problems are everywhere. It’s very important for the leaders to understand themselves as running a shop in which the people in the shop are committed in a very straightforward and basic way to the enterprise. It’s very important instrumentally, but it’s also psychologically important. It’s one of the main ways that they justify their existence is that they are presiding over an institution which has the quality of a collective commitment to common work ideals, and that is based on transparency in some sense. For the mass of workers in the institution, the question of loyalty is unbelievably central for them, because this question exists in the back of everyone’s mind and almost everybody in a normal organization of this type in the United States feels that they really ought to be completely loyal. They first feel they really ought to be. And then cognitive dissonance is such … cognitive dissonance meaning there’s a real problem of understanding oneself as half hearted or in bad faith in a context where you’re having to act all the time and enact good faith. So if you enact anything less than good faith, you’re instantly going to be identified as a bad apple. So you have to act it out, and the face becomes the mask and people do deeply commit their loyalty. So this talk was meant to be…There are many negative ways to characterize it, and it was characterized in many negative ways. But I would say it was attempting to be an actual serious moment of addressing that and taking the position that those duties of good faith, which are experienced as essential and the basis of discipline from the hierarchy up the top and which are embraced most of the time by most of the people in the organization: that’s not right. That was the basic thesis. That thesis is in a tradition, so it’s anarchist. I am not a Christian, I’m an atheist. But it’s also an idea that has a central role in various versions of evangelical Christianity. Conscientious objection is another. It’s a very basic strand in Western thinking about life and organizations, but which is surprisingly absent, very rarely articulated in this kind of a way. And then here’s a last aspect of it. It is modernist post-modernist in the sense that I would embrace. So it’s culturally modernist, and it’s post-modernist in the idea that it’s a gesture. The gesture, the word sly is supposed to shock. So it was deliberately intended to shock, like the word conspiracy, which I know it didn’t use in the written thing, but I may have used in the talk. This is actually a very unpalatable and scary idea. It’s not a nice idea. It’s an idea that involves you in a certain kind of moral dilemma where there won’t be any nice solution. But that’s the way it is. Such is life in organizational society. So that was the idea.
Craig Orbelian [00:26:08] As you’re mentioning, your proposal or discussion in the talk and especially your use of the word sly elicited a lot of reactions. And in 1982, the Bulletin that had published your talk the previous year published a section called Responses to Kennedy, and this section featured many HLS grads’ objections to your calls for action in Rebels from Principle. I’d like to present some of those objections here and then ask you questions about them. One of the objections came from Shelton, who you mentioned earlier.
Duncan Kennedy [00:26:53] Class of.
Craig Orbelian [00:26:54] Class of ’84.
Duncan Kennedy [00:26:56] Therefore, he was, a 2L.
Craig Orbelian [00:26:59] His objection was that sly resistance in law firm won’t work since it misses the real problem, which is corporate activity. I can quote something that Shelton said in his objection, which is that even if associates will be able to have influence on their firms’ case loads, corporate clients will either find other law firms to bust unions for them. Or find alternative methods to accomplish the same end. Over the years has this objection that resistance in the law firm will be futile has this objection become more convincing, in your view, or less convincing?
Duncan Kennedy [00:27:43] Remember that that view is the view that I set out to criticize. So that was the whole point. And he was a perfect example of the strand of very radical leftists. He was an admirable guy and interesting and a smart guy. The strand of very radical leftists who were, as I saw it, quite effectively convincing a lot of people that this Manichean version of it was true. Your question is a very good one. But I guess before I can answer it, I have to say what I thought was possible then. This was not like a legislative proposal. It wasn’t like the Democratic Party platform. Even that degree of meaningless rhetoric. That wasn’t this. This was a suggestion about how one should treat a psychic situation of being enmeshed in a system that you experienced as profoundly illegitimate. And the proposal was you might be able to find a way to do something. So Shelton, in a classically old left way, asked the question, “Well, is that an effective way to change the system?” Duh, well, it’s obviously not an effective way to change the system. That would be ridiculous. The illegitimacy of the system is based on a million complicated institutions.That’s not the question. The question is the question for the actor. It’s an existential question. And there, of course, the existential motive is to make the law firm better. But it wasn’t about the caseload. I mean, again, it was just a typical old left misinterpretation of the new left. So, yes, it would be great if you could change the court’s caseload. It would be great if in a particular instance, you could figure out a way to intervene with a partner who was about to do a particular union busting move to get the partner to back off or moderate. Just as law clerks strongly influence judicial opinions without overthrowing any aspect of the system. They get the opinion worded so it’s a little bit harder to use a consent defense in a search, just a little harder. And as a piece of a day’s work, that’s good. But you don’t do it because you think that you or a vast group of sly associates spread across Lower Manhattan are going to actually cause corporate law firms to stop busting unions. It’s just not the reason why you do it. Moreover, it’s not just about the role of the firm in the outside world. My example was very much about that, but it’s also about a cultural confrontation which is very dear to the hearts of people in this generational thing, which is it’s about things like hours of work. You gonna work 80 hours a week. Well, you know, basically incredible passivity towards that system. So it’s about hours of work. It’s also about the relations between bosses and secretaries. It’s about the mail room. It’s about all aspects of the inner organization of the firm. And it’s about your relationship with your partner or mentor, which is going to be incredibly emotionally central to your life. It’s going to be deep and dangerous to your immortal soul, according to this version of the critique. So what do I think about that with the passage of time? I was in 1981, critical legal studies was going up like a rocket and then down like a stick, but up like a rocket at the time in its up like a rocket phase. It struck me that there might be interesting stories that would filter back of the ways in which students who become associates had engaged in various forms of internal resistance. There were no such stories at the time that basically were just trying to figure out, Can this happen? There were lots of stories, 60s stories about resistance inside institutions, but the corporate law firm was not one of them. And I would say that it was sort of a pipe dream. That is not many stories ever came back. There’s a guy named [00:31:36]Wayne Eastman [0.5s] who wrote a brilliant article, really a good article about his life in a corporate law firm and thinking about this and trying to figure out what to do about it. He then quit, and he’s a professor in the Business School of Rutgers in New Brunswick. Very interesting guy. But I would say this idea had no future. In fact, none of our ideas about the corporate bar had any future. I think the world of legal services and now I’d say the world of human rights have both been impacted in various ways by the kind of ways that we thought about this, especially seeing that [00:32:12]Gary Bellow and Jeanne Charn [0.7s] were actually serious crit people, so we weren’t influencing them. They were part of the very thing. But I would say that the corporate law firm was simply impervious to the siren call to slyness.
Craig Orbelian [00:32:28] While we’re on the topic of how promising the corporate and legal industry could be for change, there is another objection to your discussion in the Bulletin which went along these lines. It was that students shouldn’t go to big firms at all. Instead, they should start or join small firms. The idea here is that maybe lawyers won’t be able to do good in the big law firms, but the alternative is possibly to start a small law firm where they can do good. It seemed like from your last response, you suggesting that maybe private practice in general isn’t a very promising field for change, but do you feel like maybe the small law firm is an exception to this rule, that the private practice is not the most promising place?
Duncan Kennedy [00:33:26] Well, in Legal Education and the Reproduction of Hierarchy, I actually make as a major criticism of legal education and the way it reinforces hierarchy, disabling students from small practice and from starting their own law firms and for working on that level. [00:33:42]So one of the big criticisms of the way legal education operates, which was true then and it’s true today, is that it doesn’t give students the skills they would need to go out on their own or to link up with other like minded students. [14.1s] So that is totally part of the critique in legal education, the reproduction of hierarchy. I thought then, and I still think that the chances, if you can make that work, I would say, Wow, that’s just great. But it’s very odd the way you put it. Chances for change or prospects for change. And in some way, I’m not sure I know what you mean by that. Again, I want to insist on a set of distinctions here. So there is social change and then there is creating within the system without imagining that you’re going to change it structurally and profoundly at the individual level of praxis, a culture that’s different for your sphere than the dominant culture. I think both of those ideas of what change is are totally plausibly associated with small law businesses. Though small law businesses can be terrible too.
Craig Orbelian [00:34:51] I’d like to turn to one other objection that was raised, which is that corporate attorneys are too wealthy to have credibility among regular working class or academic leftists. I’m wondering if you agree that a corporate attorney’s or law professor’s wealth might undermine her credibility among working class leftists. And I’m wondering also if that kind of credibility among the, quote unquote, working class leftists would be needed for the kinds of projects that you had in mind over the years?
Duncan Kennedy [00:35:30] Well, that question really makes me laugh. Just listening to it makes me laugh. So again, where is that question coming from? By the way, who asked that question? When did that guy graduate?
Craig Orbelian [00:35:41] This was Professor Vagts.
Duncan Kennedy [00:35:43] Professor Vagts, my colleagus. Professor Vagts, exactly, who graduated from Harvard Law School probably in about 1939 or 1940. So a very basic problem is to understand what the goal of a kind of left practice of this type is. He’s imagining, which is one way in which in his generation you imagined it, that leftists aspire to be the leaders of the working class. So the idea is the leftist wants to become a person who organizationally and by his or her propagandist or rhetorical activities and programmatic activities, becomes a person who is credible with a mass audience of some kind. That was then, I mean, basically in the post sixties universe of this kind of world, nobody would think that they would become credible with some large category like that. If they were going to be in a corporate law firm, then the kinds of activities that they could link with of the left outside the law firm were things like legal services, public interest practice and stuff like that. Left activists in those activities were not radically and are not today from a different world. And they’re not going to say that the salary made by a corporate lawyer who is doing something for them that they understand they’re getting a service from that person, that the salary discredits the giving of the service. In fact, quite the contrary. If the guy or the gal has got the time and is willing to forfeit whatever they have to forfeit to be of assistance to a left project, they’re likely to be welcomed, not shunned, on the grounds that we wouldn’t associate with a person who has gone over that cliff. So I just don’t think that was a plausible thought on any level. Already, by 1981, the Left in America, understood as a popular force with its own intelligentsia and its own organizers who are leftist, is gone, just not there anymore.
Craig Orbelian [00:37:54] One other objection was that the left is just as repressive as the right. So I’ll quote a graduate from HLS. His objection was, “The hope for moral and individual values lies in thinking for oneself and avoiding the caricatures of the left and right which appear to obsess kennedy. I suggest that to a disinterested observer of the human condition, big government is a significantly greater threat to moral and individual values than big business could offer at its worst.” How do you respond, Professor Kennedy, to the notion that history has demonstrated that the left is equally unpromising as the right? And why do you choose to associate with the left?
Duncan Kennedy [00:38:49] The first question is what is the mean by the left? And the question presupposes that there is a left and a right. And the actual presupposition of the question is that the left is big government and the right is big business. And so the basic question is haven’t both of those turned out to be no good. And that’s one axis of the idea. The other axis is the left has failed in other ways. It’s turned out to be morally unjustifiable. And that’s going to be a reference not just to big government, but to say Stalinism or Maoism or Pol Pot. The history of movements that were identified mainly with communism. Almost all of those identified with communism, which have perpetrated genocide, mass massacres and created incredibly horrible way of communist totalitarian existence. So both of those are part: one is the familiar Democrats against Republicans, which is totally true today. Every word of that big government versus big business is actually the rhetoric of our current political culture. And the other is the old rhetoric in which the left is associated with communist totalitarian regimes. And so if you’re a leftist, the failures or crimes, let’s say the crimes of those regimes are on the account of the left and then on the kind of the right, we might have the Holocaust or something like that. So neither of them looks good. Neither the Gulag nor the Holocaust is exactly what we were looking for. So wouldn’t you say that the distinction between left and right has been pretty much abolished and they’re equally bad and equally morally discredited? So we need something new. So both of those big government and then the communist fascist way of looking at it are very familiar aspect even today, I think. So what about that? Well, the question of what one means when one identifies with the left. It’s one of those cases where there isn’t any well defined, well known meaning that everyone agrees with. So when you say “I identify with the left,” it’s not that everybody who listens to you instantly knows what you think. In fact, quite the contrary. It’s somewhat puzzling today, I would say. May I make an analogy to the word sly? It’s somewhat puzzling to say I am a leftist. In fact, other people characterize people as leftists, but people very rarely in America call themselves leftists. So there’s a somewhat similar agenda at work here as with the word sly. So it would be something like this. There is a set of positions. And by the way, I know it’s not good to cite oneself, but in a Critique of Adjudication, a book of mine published in ’97, there is a four-page attempt to summarize the positions associated with liberalism and conservatism in America. And, you know, it’s just a long list. It’s not big government versus big business. The kinds of proposals that are associated with the left are egalitarian proposals. So they take equality as in actually major, major value. And to call yourself a leftist in this context means that you would like to change a lot of existing institutions and arrangements so that there would be a much more, not a little more, a much more egalitarian distribution, not just of income but also of wealth. Definitely need to redistribute that as soon as possible, but also of access to knowledge, access to culture, access to the other kinds of resources that are available, access to compassion, access to help in general. That’s the egalitarian idea. Equal access kind of idea is one idea which is associated with the left. It’s certainly not associated with the right, and that meaning is present in the background of the conversation in which no one ever talks about the left as well as the gulag. Second, there’s a communitarian idea. There’s an idea that it’s not just about equality in the sense that each individual should get a more equal share of everything. The communitarian idea is a very basic idea of self-government; in a gross way you could say it’s the federalist idea, or you could say it’s the devolutionary idea, or it’s the idea that in every social order, the power of decision should be located as far down close to the people who are living the experience that’s being governed as is feasible. So it’s not a question of abolishing all state order or leveling all organizational hierarchy at all. It’s just the idea that it’s an important goal that should be considered in any kind of design of institutions. So that applies to faculty autonomy. Let me give you an example. Again, try to pursue the line here that it’s a mistake to think about these things as leftists are mainly preoccupied with other people rather than with their own real lives. So in the Harvard Law School context, at two different stages. In 1980, the faculty very formally expressed by a large majority vote the view that the next dean should be selected through a process that involved a selection committee chosen by the faculty, as opposed to the historic process in which the president of the university completely at his discretion chose the next president. So in 1990 there was an elected by proportional representation, by the way, selection committee, which engaged passionately in a vast series of debates about who the next Dean should be. The president then short circuited the process and appointed Robert Clark, who was a member of the selection committee. And a lot of people experienced that as outrageous, though a lot of other people by then who had voted for 1980 had a lot of second thoughts about the chaos that was being sowed by this process of an elected committee working on who the next Dean should be. And in 2000, the faculty totally accepted a simple …: 2005, maybe not 2000, because Robert Summers was the president of the university. He summarily declared when Clark resigned that he was not going to consult any elected committee. And the faculty decided after a motion made to the faculty that we should proceed to elect a committee. Nobody voted for it, like three people voted for it. And we then formally renounced this procedure. Now, that’s a long story about a hyper elite institution, totally overprivileged people who are basically living high off the hog fat of the land. Almost all of them had tenure. This is a debate about self-determination or self-government within the collective in which many members of the faculty really and truly didn’t want to be involved in the process of selecting their own dean. They really didn’t want it. And other members of the faculty passionately did want it, but realized that it was hopeless. So that’s the kind of question: was one a left position and the other a right position? It’s obvious that the position that we should have a Dean selection committee and really try to influence our dean is it’s not left in the sense of the redistribution of income from the rich and the poor. It’s left in the sense of a commitment to self-government by the community. But the communitarian idea also goes further than that, because it’s also the solidarity idea. Solidarity is not summarized by equality among members. Solidarity has to do with what is provided to you by your fellows as members of a single community, regardless of how badly you’ve spent your individual equal allocation, or how competent or incompetent you are to spend it. So this is an idea of a form of equality in which there’s a conscious desire to take care of the other people in the group when things go badly for them. Again, it’s a Christian idea, but in modern America, it’s a leftist idea if it’s to be associated with formal organized procedures. So if this idea is restated is yes, and churches and local voluntary associations, a thousand points of light should do it as a right wing idea. But if the idea is the mechanisms of government, doesn’t mean big government, but government ought to be directly involved in making sure that happens, so it isn’t left to the vagaries or the earnest efforts of the thousand points of light. That’s a leftist idea. Now, I think that those are totally intelligible ideas. And when people say that the distinction is blurred or no one knows one thing or the other, a very common sentiment, what is meant exactly by that? I think there are two different interpretations of the general sentiment that the left right dichotomy has lost its usefulness, its reality, its cogency. Very often a person who says that in my experience, because this is a thing that I’ve discussed quite a bit in my life with people is something like this. “I don’t really agree with either the left or the right. I share some views of each. I’m actually a centrist. It’s not that I don’t recognize the existence of left programs and rights programs, but I’m torn and I can’t be a leftist in going down that road of really being committed to sharp increase in equality or sharp increase in community or in the opposite direction. I’m not a free marketeer and I don’t believe in individualism at all, and I believe in safety. So I’m just not oriented by the poles, meaning I agree with half of each. I’m a moderate and I call them as I see them. I call them as I see them. I’m not in the pocket of either the left or the right.” Now, that is related to the second idea, which is it’s an expression of consciousness that there’s a mode of existence which is sometimes called ideological. So in our society, we’re aware that there are ideologues, like I am an ideologue. I mean, I’ve always described as an ideologue, and I totally embrace the description. So I’m committed in some existential sense to political projects that are very important to who I think of myself as being. And a significant part of my existence is involved in talking to people about things like that. And there are lots of ideologues on the right, and there are many ideologues in the center who are passionately committed to the idea that ideology is evil and to their non ideological character. The person who says left and right or gone could be ideological centrist probably isn’t. It’s a person who is turned off by or doesn’t feel the impulse to enter into the kind of sphere, the magnetic sphere, of people who are engaging with that kind of underlying what passion, commitment. But also inevitably, there’s a kind of, you know, “enough already. I mean, I’m not going to join you, nd you seem to be saying unless you join me, you aren’t really have anything to do with me and you don’t care about me. And I really don’t like that attitude. I would like to be in relationship to you as a person without that, for Christ’s sake. Let’s talk about sports.” I completely understand that too. So that person is not necessarily a centrist. They resist being on that spectrum and they’ll call them as they see them. Maybe they’ll call them very often on the left or very often on the right. But they still think it’s sort of awful to be in that. So that’s a real different ways of life in our society.
Jon Hanson [00:50:37] Thank you for listening to this episode of the Critical Legal Theory Podcast. In the next episode, we’ll hear the second part of Craig Orbelion’s interview with Duncan Kennedy. Many thanks to our audio engineer Zach Berru and our co-producers Tolu Alegbeleye, Julia Hammond and Indy Sobol.