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84 Mich. L. Rev. 1656 (1985-1986)
Legal Modernism

handle is hein.journals/mlr84 and id is 1678 raw text is: LEGAL MODERNISM David Luban* What are the roots of Critical Legal Studies? The immediate in- tellectual background ... is the ... achievement of early twentieth century modernism... ,I writes Roberto Unger in his CLS mani- festo; he elaborates this modernist connection in his deep and subtle book Passion.2 Other CLS members also draw parallels between their endeavor and artistic modernism.3 Obviously, CLS is first and foremost a movement of left-leaning legal scholars; it is also associated with distinctive theoretical claims about law. But it should be equally obvious that CLS involves sensi- bilities and affinities that are strikingly similar to those of an artistic avant-garde. Moreover, CLS lives in a complicated relationship to its past and to its institutional setting - it simultaneously rejects and builds upon mainstream legal theory, simultaneously reviles and de- pends upon the legal academy. These ambivalences are strikingly sim- ilar to the relationships of artistic modernists to premodern art (on the one hand) and to the commercial art world (on the other). Social facts like these are never merely superficial; thus, they pro- vide ample reason to consider carefully CLS' connection with artistic modernism. That is my purpose in this essay. The thesis that I want to explore here is roughly this: CLS is to legal theory as modernist art was to traditional art. CLS is legal modernism. * Associate Professor, University of Maryland School of Law; Research Associate, Univer- sity of Maryland Center for Philosophy and Public Policy. B.A. 1970, University of Chicago; Ph.D. 1974, Yale University. - Ed. This essay was originally prepared for the plenary session of the Canadian Association of Law Teachers, held in Winnipeg, May 29, 1986. I would like to thank the C.A.L.T. for its great hospitality and interest. I also wish to thank Alan Hornstein, Michael Kelly, Jerrold Levinson, Judith Lichtenberg, Sherry Manasse, Deborah Rhode, Girardeau Spann, Mark Tushnet, and Robin West for their very helpful comments on an earlier draft of this essay. 1. Unger, The Critical Legal Studies Movement, 96 HARV. L. REv. 561, 587 (1983); see also id. at 660-62. 2. R.M. UNGER, PASSION: AN ESSAY ON PERSONALITY (1984). 3. The connection with modernism - which I have mostly heard in conversations with CLS members - was emphasized by Mark Tushnet in his addresss and comments at the 1986 AALS Jurisprudence Section meeting in Philadelphia. See also Cornell, Toward a Modern/Postmodern Reconstruction of Ethics, 133 U. PA. L. REV. 291 (1985), which develops the philosophical (rather than artistic) side of modernism, ending with a call for aesthetic commitment to the reconstruction of our social world. 1656

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