Article by Daniel C.K. Chow
The critical-legal-studies movement has attempted to undermine completely the central ideas of modern legal thought. Leading this attack is a group described, by both its opponents and proponents alike, as the nihilist wing of the critical-legal-studies movement. While all critical legal scholars challenge the legitimacy of our legal system, the nihilists carry their destructive arguments to their furthest limits to raze the very conceptual and philosophical foundations of modern legal thought. The nihilists charge that the legitimacy of law rests on claims that law is objective, determinate, and neutral and that all of these claims are false. As a result, the nihilists deny the legitimacy of any existing or any possible law or legal system.
The nihilists charge that traditional legal scholarship's claims to objectivity, determinacy, and neutrality are spurious because they are ultimately based on an unobtainable metaphysical knowledge. The nihilists contend that while metaphysics purports to offer foundational explanations of the world and human experience, including an account of how objective knowledge is possible in mathematics, science, and law, all metaphysics is actually a form of delusion that masquerades as knowledge. According to the nihilists, metaphysics has the same epistemological status as mythology and superstition, and similarly should be consigned to the dustbins of human mistake and misconception.
In attacking the metaphysics of contemporary legal theory, the nihilists employ some of the same approaches first used by the legal realists of the early part of the twentieth century. The legal realists, for example, exposed nineteenth-century formalism as based on a metaphysics that posited legal concepts already extant in some platonic heaven. According to the nihilists, the legal realists did not go far enough and the nihilists seek ‘to keep the realist project going.” By exposing metaphysics in mainstream legal thought at levels where the legal realists did not think to look, i.e., at its very foundation, the nihilists believe that they have vanquished traditional legal theory once and for all.
Once we free ourselves from the delusions spawned by traditional legal theory, the nihilists claim that we are left with a sober world “[i]n the cold light of CLS day,”' a world expunged of speculative metaphysics. In such a world there are no answers that exist independently of human creation, like “manna from heaven”'; rather we are left with ourselves, completely responsible for our own destiny. Rather than the product of some historical, sociological, or biological necessity, all aspects of social life, including all laws and legal institutions, are contingent social conventions. These institutions are not based on some overarching, independent ground of reason or necessity, but are perpetuated solely by the power of those social groups in control. The nihilists argue that because these institutions are socially constructed, we are free to restructure or reject all of them, including the existing legal system. This realization should not lead to despair, but to a sense of liberation and empowerment. Nihilism liberates us because we now realize that we tell ourselves what to do and nihilism empowers us to become the rulers of our own destiny.
This Article rejects nihilism on both philosophical and pragmatic grounds. Borrowing a critical technique often used by critical legal scholars, I will engage in an “internal critique”' of nihilism, i.e., I will take seriously the nihilist critique and then show why nihilism fails on its own terms. Or, to use the more colorful term coined by the nihilists, this Article will “trash”' nihilism.
Part I of this Article sets forth the nihilist argument that traditional legal theory's claim as a valid and legitimate guide to human conduct is specious because it is ultimately based on metaphysics. Then, in Part II, I refute the nihilists' claim that they have escaped the pitfalls of metaphysics. Contrary to the self-made claims of the nihilists, they do not offer us a sober world free from the delusions of metaphysics. While the nihilists reject traditional legal thought as based on metaphysics, the nihilists themselves merely substitute their own metaphysics for the metaphysics of traditional legal theory. Based on its own criteria, then, nihilism, as a philosophical position, is no better than traditional legal theory. Nihilism's claim that it has conquered traditional legal theory thus fails.
Once nihilism is exposed as merely an alternative to traditional legal theory, suffering the identical flaw of harboring controversial metaphysical assumptions, the nihilists must now show why nihilism is a superior theory. Part III argues that if we engage the nihilist in a metaphysical debate, then we should reject nihilism. I argue that nihilism is both an unacceptable alternative to traditional legal theory as well as an unacceptable way of life for individuals. According to the nihilists, in a world without metaphysics, we must make decisions based not on reason, but on more pragmatic criteria, such as commitment and conviction. Part III argues that based on the nihilists' own pragmatic criteria, nihilism becomes absurd and unacceptable. We should reject nihilism once and for all as both a philosophy and as a way of life.
About the Author
Daniel C.K. Chow. Associate Professor, The Ohio State University College of Law. B.A., J.D., Yale University.
Citation
65 Tul. L. Rev. 221 (1990)