The Empty Tomb: Post-Critical Legal Hermeneutics
Peter Goodrich2010, Nevada Law Journal
optimism of the intellect but pessimism of the will. In Gabel's view, it was not only that the established order resisted or rejected the critics, but equally that the bonds between the dissidents, the sense of collective urgency and mutual affirmation, fell away. The existential goal of the movement was to build a community, to connect, to bond, to share affections and affirm ideas, to love, but these embodied and interpersonal attributes of collective encounter, "the whirl of the spiral dance" and of "eye contact" too soon became sedimented in "reciprocal withdrawnness" and "mutual solitude." 2 The system gets to you, memory shapes community and experience dampens relationships, all too often placing habitus and impetus alike in the past, in the origin, in that childhood, institutional, existential or both, in which we were all sovereigns of our restricted worlds. Now, in the desert of the real, the corporate wasteland as reflected in the mirror of law school grade curves, classroom hazing, and doctrinal vacuities, separation and alienation have, in Gabel's view, left the heart beating weakly. A seemingly bleak picture. The hermeneutics of habitus, the ethos of the movement as a political community, gives way to the theory of critique, a movement towards abstraction that reflects the normative impetus of law, as well as a demographic that does not include successful reproduction of the movement in the next generations. Thus, the repetitive sense of fading away, the detachment from the viscera, a necessary though not necessarily desirable aging and separation, from movement to perambulation, reflective, if nothing else, of the success and institutionalization of the participants. They became named chairs, spouses, parents, professors of general jurisprudence, poets, film-makers, Associate Dean. Gabel, however, is affirmatively optimistic: "But it's not too late!" Community survives, there is time and place for play, connection still. The way out or, better, the way forward for CLS is "to return to its original instincts as a righteous social transformation movement and this time recognize that there is 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." 3 The failure of critical legal studies, the hiatus or temporary derailing thus offers a dynamic lesson and sounds a rallying cry. Post-critical legal hermeneutics should return to the early writings and recover the breath of enthusiasm, the light of shared excitement, the ideals of justice and love that the nascent movement of critique had conjured and that subsequently, with mainly benign collective senescence, got mislaid. It is this argument as to the lost object of critique, the forgotten core, and its accompanying interpretative theory that is a new project born of old texts. It touches a chord, a song not yet sung, that is also emergent in the margins of European legal studies and gains surprising support in the work of the Italian jurist and philosopher Giorgio Agamben. 4 7 Gabel, supra note 1, at 522. 8 Sublunar, let me explain, simply in the sense, European perhaps, that any scholar claims to be critical, but in the United States legal academy critique has sometimes a reputation of wildness that requires the sotto voce.
