by Peter Gabel. New Orleans, Louisiana: Quid Pro Books, 2013. 208pp. Cloth $32.99. ISBN: 978-1610-27197-4. Paper $23.99. ISBN: 978-1610-27198-1. Electronic Book $9.99. ISBN: 978-1610-27199-8.
Reviewed by Mark Kessler, Department of Women’s Studies, Texas Woman’s University. Email: mkessler [at] twu.edu
In the introduction to his latest collection of essays, Peter Gabel – co-founder of the Critical Legal Studies movement, long time president and law professor of the New College of California’s public interest law school, and editor-at-large of Tikkun magazine – continues his project of outlining, elaborating, and applying a “spiritual-political way of seeing” to law, legal practices, and public policies. We first learned of aspects of this project in his now classic contribution to a symposium on rights published in 1984 in the TEXAS LAW REVIEW, “The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves” (Gabel, 1984). This article and others in this symposium and elsewhere became part of the “CLS rights critique,” a critical interrogation of the role and (in)effectiveness of rights in struggles for social justice that, in Robin West’s (2011: 714-15) terms, constituted “the moral heart of the Critical Legal Studies movement.” Gabel elaborates on his perspective in a book of essays published in 2000 (Gabel, 2000), and expounds on it further in the book under review. Despite the fact that there is not much new to those familiar with Gabel’s previous writings, and no evidence of Gabel struggling with or responding to critical commentaries regarding CLS and its critique of rights or engaging with scholarship that could provide significant enrichment outside the work of a small circle of fellow “ Crits” in the legal academy, it is for me both pleasant and inspirational to be reminded of his perspectives and the important role he and others associated with the Critical Legal Studies movement played in legal scholarship in the 20th century. As significant, the volume also inspires its readers to consider the potential for developing critical legal studies for the 21st century that draws on scholarship across the academy in innovative ways that may fruitfully address previous criticisms of the CLS project.
This volume is divided into four parts in addition to the introductory essay. The first, “Law and Justice,” includes four essays that develop his theoretical framework and apply it to law and legal practices. A second, “Politics,” applies the framework to various political events that include analyses of the legal-political case of BUSH V. GORE, the 2004 and 2008 presidential elections, and the Obama presidency. A third section, “Public Policy,” examines foreign policy, same-sex marriage, and science policies through a spiritual lens. A final section, “Culture,” includes an eclectic mix of essays on Sartre, patriotism, portraits of the photographic artist Robert Bergman, and an essay on living with illness. A postscript, “The Spiritual Dimension of Social Justice,” reproduces a lecture presented at [*256] Georgetown Law School that summarizes the perspectives developed in the essays that make up the book’s core. Two of the book’s nineteen chapters were previously published in law reviews, two others were first published as book chapters, including a commentary published in the reissued version of Duncan Kennedy’s (2004) classic CLS work, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM. The remaining chapters are adapted from Gabel’s writings over the past ten to fifteen years in TIKKUN, a progressive Jewish political-spiritual magazine dedicated, according to its mission statement, to healing and transforming the world.
In many respects this volume focuses on social theory, in particular a theory that Gabel has been developing for many years. “Social theory,” writes Gabel, “is really nothing more than a way of seeing.” This way of seeing, he suggests, “is central to our capacity for effective and meaningful social action” (p.1). He critiques legal liberalism, the dominant “way of seeing,” for its individualistic tendencies and emphases on self-interest, while it ignores the most significant elements of the human condition, including the need for love, mutual recognition, intersubjective connection, community, and “the sense of elevated meaning and purpose that comes from bringing that world of intersubjective connection into being” (p.6). Rights reinforce individualism with all of its problems, while also producing a false sense of protection and a diversion of attention and energy of social movements from potential political activism and feelings of solidarity and connection to problematic legal activities by lawyers in courts that separate the litigants from the cause. Legal liberalism, Gabel [*257] suggests, produces alienation of individuals from each other and from society, an alienation that expresses a lack of recognition and ultimately develops into what he calls a “Fear of the Other.” Alienation, according to Gabel, frequently leads to the invention of and attachment to “imaginary communities” that serve as substitute forms of human connection. Within these imaginary communities individuals demonize “others” as a protection of the “false self” created in these communities against the “humiliation” provoked by a lack of recognition (pp.10-11). Gabel’s assessment of social problems of various types and dimensions begin (and often end) with the problem of social alienation. “Material suffering and injustice,” he writes, “are manifestations of our historical legacy of our alienation from one another.” “The cause” of this suffering, he suggests, “is to be found in the social-spiritual separation expressive of an underlying failure of mutual recognition that expresses itself existentially as Fear of the Other” (p.5).
Thus one important part of Peter Gabel’s project is a call for “another way of seeing” that embraces Martin Luther King’s definition of justice as “love correcting that which revolts against love.” The social alienation that “accounts for so much human suffering is at every moment countered,” he writes, “by the desire to transcend it, by the inherent goodness of every human being that codetermines and transcends the way each of us manifests our presence in every moment of our existence.” To transcend the problems inherent in legal liberalism, Gabel encourages “spiritual activism,” a term he suggests he developed with Michael Lerner, defined as “collective activism for social change that seeks through practical, present-day actions to make manifest our deep longing for spiritual connection and to partially realize that connection through a new form of spiritual politics” (p.12) Gabel finds aspects of the spiritual interconnection he seeks in his participation in collective religious rituals and in broader participation in the political struggles of social movements. Many of the essays in this volume apply these premises to the practices of lawyers and legal scholars and to analyses of a variety of social, political, economic, and cultural issues. Throughout the volume’s essays, Gabel discusses how another, more spiritual “way of seeing” may guide the development of law, policy, and culture, and how spiritual activists may work to bring about a transformed legal culture and ultimately a more just society where love corrects that which revolts against love.
Gabel’s call for “another way of seeing” is linked closely to the second part of his project – recovering or reclaiming the spiritual dimensions of previous work in Critical Legal Studies and putting it to use in the 21st century. In the major scholarly essay of this volume, “Critical Legal Studies as a Spiritual Practice,” Gabel traces these spiritual dimensions to early work in CLS but suggests that this important strand in the work was abandoned in favor of critiques of law and rights as indeterminate. The indeterminacy critique, “the idea that legal principles are so abstract and indefinite that they can be used to rationalize virtually any outcome…won out,” he writes, “inside CLS.” Gabel suggests that “the wrong side carried the day,” but, he suggests optimistically, “today is another day”(p.44) He critiques the indeterminacy position, referring to it as “a headless horseman, an analytical method without moral content that could not itself point the practitioner in any moral direction” (p.45) CLS, according to Gabel, lost its way, “stopped” or “paused” several years ago because it abandoned its moral foundations. A central element of Gabel’s project, then, is to provide a foundation for law and public policy grounded in his version of spiritual activism.
What may a reconfigured CLS do to further this spiritualized view of the human condition? CLS’s project, according to Gabel, is both to illuminate and deconstruct legal liberalism as an ideology creating a legal culture characterized by social alienation and reconstruct a new legal culture “that would strengthen and help to realize the loving bond between us: the bond that actually unites us as social beings” (p.55) Justice, in this reformulated legal culture, would be closely linked to what Gabel refers to as “spiritual outcomes,” those that “foster empathy, compassion, and social connection rather than the vindication of liberal rights in a legal order founded upon the fear-based separation of self and other” (pp.55-56) Gabel calls attention to the great potential in what he views as an emergent “parallel justice system” that includes the Restorative Justice movement, an alternative mediation system based on understanding, new forms of spiritually informed law practice, and transformations of legal education incorporating a “more humane and spiritually integrated conception of [*258] law and justice” (p.56)
The CLS movement may reclaim its spiritual legacy, Gabel argues, through collaboration with “the world-wide spiritual-political initiatives that have sprung up since the post-sixties era from which CLS first emerged” (p.55). Among the movements he mentions are progressive religious renewal movements, spiritually informed secular movements, such as the Network of Spiritual Progressives, and global environmental and ecology movements. Through participation in these movements, CLS may “return to its original instincts as a righteous social transformation movement” … that “recognize(s)…a spiritual basis for our understanding of the social individual that is rooted … in the enlivening mutual recognition, or Love, that was always at the heart of the movement out of which CLS was born.” “Human beings,” writes Gabel, “are bound together…by the desire for confirmation within a loving community that will overcome the legacy of alienation and social separation.”
There is much to admire in the scholarship and political writings of Peter Gabel over the years and in the volume of essays under review. Gabel reminds us of the constitutive dimensions of rights discourses within legal liberalism, the importance of sociality and collaboration, and boldly introduces spirituality, a concept often viewed as taboo in the academy, into discussions of law and social justice. With his colleagues in CLS he spoke his truths to power while working within the legal academy, where, as Duncan Kennedy argues, hierarchy is more often reproduced and rarely challenged. In his voluminous writings for TIKKUN magazine, he models the significance of the role of public intellectual-activist.
The call in this volume for a reformulated Critical Legal Studies movement is important coming from a respected scholar so central to the development of this intellectual movement over the years. However, that call would be even more persuasive, at least for me, if it emerged from a careful consideration of poststructural and intersectional critiques of foundational theories of the subject, critiques of the CLS movement over the years, and current work outside a small circle of former CLS associates produced by feminist, critical race, queer studies, and social science scholars that could potentially move a project of critical legal studies forward. Did we not learn from the poststructural and intersectional turns that foundational frameworks positing a universal and monolithic subject with universal and monolithic longings, wants and needs should be considered with great care and assessed for its potential to exclude as its assumptions about all may apply only to some? These insightful critiques are evidenced in the work of legal scholars like Kimberlé Crenshaw (1989) who examine the role of intersecting identities in all of their complexity, and in scholarship by political theorists like William Corlett (1993) who explore how we might envision and build communities without assuming unity.
One need only recall Patricia Williams’ (1987) now classic story of searching for apartments in New York City with the same Peter Gabel who authored this volume to understand in these terms a problem with the original CLS critique [*259] of rights. Gabel, true to his philosophical principles, insists on not signing a lease that is layered with rules, regulations, and rights. He is content with verbal agreements and handshakes, seeking informality, solidarity, and community. Williams, from her very different social location as a woman of color, is wary of potential unfair treatment, insists on the legal protections afforded by a lease, and cannot imagine entering into agreements without contracts. Mari Matsuda (1987) similarly suggests that progressive, predominantly white male critical legal scholars should “look to the bottom,” listening to the voices of those whose experiences in life are likely very different from their own as they develop their views of law, rights, and a vision of the good society. These views, which became part of what is often referred to as the “minority critique of CLS” also questioned the commitment of CLS to a simplified vision of community and a problematic, often nonexistent consideration of the role of intersecting identities for the prospects of collective collaboration and action. Richard Delgado (1987: 314), for example, worried that the communities envisioned by CLS scholars “would empower whites, giving them satisfaction currently denied, and disempower minorities, making life even less secure than it is today.” Delgado quotes what a black leader was once heard to remark about the need for greater community: “Community don’t look like me.”
These questions that were raised by critical race and critical race feminist scholars are as important today as when they were written several years ago. They could and should be engaged and consulted as part of a new reformulated critical legal studies. Further, CLS work could be broadened and enriched by engaging more fully with other critical legal studies movements that include critical race, critical race feminist, Latcrit, queer legal studies, and other progressive intellectual movements that seek social justice. Finally, work outside the law school world, located in other parts of the academy promise to further enrich a reconfigured critical legal studies movement. AnaLouise Keating (2008), for example, interprets Gloria Anzaldúa’s (2002) use of the concept “spiritual activism” as the meshing of “inner works” with “public acts,” or private, personal work that we do on ourselves with public work on social and political issues. Those “public acts,” it seems, could productively include the acts of lawyers and legal and legislative advocates. Scholars of womanist theory, like Layli Maparyan (2012), trace and further develop the concept of “spiritual activism” in ways that may be useful to those interested in a critical legal studies containing a spiritual dimension. Social science research that employs Stuart Scheingold’s (2004) important “politics of rights” framework could be consulted regarding the conditions under which rights may serve as symbol to inspire spiritual and political activism. Finally, Gabel’s vision for a “post-liberal socially connected, loving, and compassionate world” (p.57) brought about through greater collaboration with emergent movements could perhaps be theorized more richly and deeply by consulting contemporary theorists who discuss the challenges and opportunities of “critical coalitions” (Su and Yamamoto, 2002), “radical belonging” across “power lines” (Rowe, 2008) and propose “radical interconnectedness” as a way of appreciating and negotiating both commonalities and differences [*260] across complex, intersecting identities (Keating, 2013).
At times when reading Peter Gabel’s new collection of essays I experienced the same pleasures as when listening to an excellent classic rock radio station. Perhaps it was the frequent references to the influence that the sixties had on his views. Or perhaps it was the many references in the text to artists you might hear on these stations – The Doors, The Beatles, John Lennon, among others. Like Gabel, I view these iconic artists and the times in which they first produced their music as symbolic of possibilities for social and political transformation. But perhaps the classic sixties rock of CLS could be made richer, broader, deeper, more inclusive, and more contemporary with “another way of seeing,” a way of seeing guided by and responding to past critiques as well as contemporary scholarship closely connected to Gabel’s project of activism in pursuit of a more just society. After reading this book, I am excited to see what the future holds for a reconfigured critical legal studies that builds on the important contributions of Peter Gabel, work that intersects with and could potentially be greatly enriched by contemporary scholarship from many and diverse locations in the academy and beyond. Such work, it seems to me, promises to offer innovative transdisciplinary strategies for social justice.
Anzuldúa, Gloria E. 2002. “now let us shift…the path of conocimiento…inner work, public acts.” In Gloria E. Anzuldúa and AnaLouise Keating. Editors. THIS BRIDGE WE CALL HOME: RADICAL VISIONS FOR TRANSFORMATION. NY: Routledge.
Corlett, William. 1993. COMMUNITY WITHOUT UNITY: A POLITICS OF DERRIDEAN EXTRAVAGANCE. Durham: Duke University Press.
Crenshaw, Kimberlé. 1989. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-Discrimination Doctrine, Feminist Theory, and Antiracist Politics.” UNIVERSITY OF CHICAGO LEGAL FORUM 139-167.
Delgado, Richard. 1987. “The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 22: 301-322.
Gabel, Peter. 1984. “The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves.” TEXAS LAW REVIEW 62: 1563-1598.
Gabel, Peter. 2000. THE BANK TELLER AND OTHER ESSAYS ON THE POLITICS OF MEANING. San Francisco: Acada Books.
Keating, AnaLouise. 2008. “’I’m a Citizen of the Universe’: Gloria Anzuldúa’s Spiritual Activism as Catalyst for Social Change.” FEMINIST STUDIES 34: 53-69.
Keating, AnaLouise. 2013. TRANSFORMATION NOW! TOWARD A POST-OPPOSITIONAL POLITICS OF CHANGE. Urbana, Illinois: University of Illinois Press.[*261]
Kennedy, Duncan. 2004. LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM. NY: New York University Press.
Maparyan, Layli. 2012. THE WOMANIST IDEA. NY: Routledge.
Matsuda, Mari. 1987. “Looking to the Bottom: Critical Legal Studies and Reparations.” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 22: 323-399.
Rowe, Aimee Carillo. 2008. POWER LINES: ON THE SUBJECT OF FEMINIST ALLIANCES. Durham, N.C.: Duke University Press.
Scheingold, Stuart. 2004. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. 2ND Edition. Ann Arbor, Michigan: University of Michigan Press.
Su, Julie A. and Eric K. Yamamoto. 2002. “Critical Coalitions: Theory and Praxis.” in Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris. Editors. CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Philadelphia, PA: Temple University Press.
West, Robin. 2011. “Tragic Rights: The Rights Critique in the Age of Obama.” WILLIAM AND MARY LAW REVIEW 53: 713-746.
Williams, Patricia J. “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights.” HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 22: 401-433.
Copyright 2014 by the Author, Mark Kessler.