FAILED REVOLUTIONS: SOCIAL REFORM AND THE LIMITS OF LEGAL IMAGINATION by Richard Delgado and Jean Stefancic. Boulder, San Francisco, and Oxford: Westview Press. 1994. 207pp. Cloth $55. Paper, 22.95.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.
 

Failed Revolutions, by Richard Delgado (eminent critical race theorist) and his associate Jean Stefancic, is a collection of essays adapted from law review articles. As I have read them, the purpose of their publication as Failed Revolutions is to preach a severe sermon to the choir of actual and potential activists who commit themselves to law and legal scholarship in the service of a authentic (left) social change and justice (1994: 145).

The sermon to the choir has three themes. First, legal scholarship and practice inevitably sanction a culture that tends to repress, to undermine, or to truncate social change and justice. Second, scholarship, practice, and the culture so efficaciously align themselves against arguments for authentic reform that it is difficult, if not impossible, for activists to advance successfully strategies for change and justice. Third, and therefore, activists ought not to blame themselves for failed efforts at authentic reform. Instead they should seek "self-justification by persistence" (my words): stay defiant in the good fight without expectation of success. The success of Failed Revolutions is that it conveys these themes by telling uncommonly stimulating and effectual stories.

The authors construct these stories out of an amalgam of ideas from critical race theory, post-modernist Critical Legal Studies, and radical feminism. Despite what distinguishes these ideas, they appear to coalesce into two basic warrants for the sermon:

1) although the "national culture, the consensus that bounds us together, seems to be coming apart" (1994: xv), mainstream legal scholarship and practice recapitulate and perpetuate the serious moral wrongs of the polity as well as its tendency toward incremental social change, and 2) therefore mainstream narratives are always morally inferior to the "discordant" narratives (1994:39) of insurgent groups that are devoted to (near futile) battles against law and society.

In Part One, the first and second chapters characterize how mainstream legal narratives perpetuate a fatally flawed culture of racial, gender, and sexual supremacy by advancing arguments that confine redress to "manageable proportions" (1994:15). In these chapters the authors advance the claim that neither counter-narratives nor civil rights law can be efficacious in displacing the moral wrongs of the culture. The primary justification for their claim is that scholars and judges lack a sufficient empathy with marginalized litigants, their social circumstances, and their narratives.

The cost to the polity of this lack of empathy, according to the authors, is that the polity condemns itself to "progress from one degree of nonfreedom to another, slightly less confining one" (1994:49). The authors thus advise authentic activists to persist in battles against moral wrongs. Activists justify their persistence by relentlessly criticizing mainstream narratives or by devising policy narratives that care only for results favorable to insurgent groups. The authors insist that these criticisms and policy narratives deserve virtual immunity from criticism by mainstream scholars (even if activist claims are not "infallible") (1994: 21).

The third chapter of Part One is a discussion of the various ways that professional research methodologies bias mainstream thought against both social change and insurgent approaches to the law. This discussion provides a bridge to the fourth and fifth chapters of Part Two -- chapters that I found to be the key to the sermon. The function of these two chapters is to explain just why it is that those insurgent academic stories of social change and justice have succeeded in contributing to the partial transformation of the content of mainstream (white and male) legal scholarship on civil liberties but remain systematically marginalized in legal scholarship. On the whole, the explanation given is those mainstream scholars are all too ready to ignore or to resist the stories of insurgent groups because mainstream academic culture is explicitly or implicitly biased toward the status quo, or is disdainful about insurgent stories, or is fearful of, or ambivalent about, social change.

As for those stories that can break through this bias, the authors argue that they do so only after the height of their transformative potential has passed. Although the authors characterize legal symposia in a somewhat more promising light as a venue for creating communities of insurgent voices, the light they see is not a very bright one. The authors take stock of the prestige, the sponsors, the content, the participants, and the publication yield of symposia and conclude, if somewhat reluctantly, that the evidence is that symposia also have an unfortunate tendency to over-represent some authors and topics and to ignore or resist more insurgent ones.

After what I found to be an unfortunately and unnecessarily weak transition, the sixth chapter illustrates the point about ignoring and resisting insurgent stories. The case-in-point is the regulation of pornography, and the authors take a stock radical feminist stance about it to show how conventional ideas ingrained in mainstream scholarship wrongly limit the legal imagination when it comes to recognizing the strengths of ideas about punishing pornographers for the harms women suffer from pornography.

Part Three examines the unfortunate fate of actual legal reforms. The seventh chapter is a discussion of the strengths and weaknesses of the public-trust doctrine of environmental reforms. The authors praise the doctrine for being a bulwark against the most egregious kinds of environmental harms and anti-regulatory forces. But Failed Revolutions more roundly condemns the doctrine as having prematurely closed out a wider appreciation of more adequate conceptions of humanity's relationship to the environment and the proper scope of governmental intervention such as are to be found in "earth-centered ethics," Native American thought, and ecofeminism. In the brief eighth chapter, by way of somewhat perfunctory citations of issues ranging from tobacco litigation to date rape, the authors describe how the law's conceptions of objectivity efficaciously preserve the interests of institutional power and the interests of the powerful.

Part Four contains Failed Revolutions' final chapter: a unique analysis of how adjudicators use the rhetorics of "scornful humor" (e.g., irony, sarcasm, mockery) and "imposition" (language that lays the ground to exact debilitating concessions or rejection) to preserve mainstream law and culture and to attack authentic reformers who persist in telling their insurgent stories. The authors focus on a wide range of litigants, especially civil plaintiffs and criminal defendants, and they provide a rich array of examples of how the rhetorics of scorn and imposition do their job. Failed Revolutions is concerned more with the rhetoric of scorn. Its authors find scorn's efficaciousness to be especially morally and politically reprehensible as a way of perpetuating the advantage the stronger have over the weaker (e.g., the use of scorn by adjudicators to circumvent their obligation to protect minorities from the majority).

The authors advise activists not to expect to be able to undo the harms of the rhetoric of scorn. Therefore activists are told to deploy scorn in return, to make pre-emptive rhetorical attacks against the opposition, and to consider strategic withdrawal from mainstream culture's personal and political attacks in the solace of self-legitimizing devotions to "cultural nationalisms." I suspect that even in the choir there are those who will find such justification by persistence politically insufficient. I have in mind specifically those activists who are not so favorably inclined toward post-modernist politics: they are likely to want more concrete legal and political strategies for authentic reform. I think the authors intimate such strategies in Failed Revolutions, but readers will have to tease them from the text.

Even so, what might the majority of those in the legal community -- those who are not in the choir -- think of the sermon? What the authors want them to do is to recognize themselves in the criticisms of Failed Revolutions and to adjust their scholarship along the lines of insurgent's stories (1994: 54). Naturally, the authors do not expect that to happen. I expect that is far more likely that some mainstream scholars will be put off by what they are likely to find to be a self-righteous and unjustified bemoaning of law and culture, and they will be correspondingly incredulous that they are expected to acquiesce in the idea that moral rightness resides only in the choir. If so, so much the better for the authors since I judge them to be far more concerned that the choir of authentic reformers learn to honor each other and to treat their opposition with the moral disapprobation that Delgado and Stefancic believe is the opposition's just desert.

Closer to home, Failed Revolutions should prove to be a stimulating and effectual way of making students far less naive about law, culture, scholarship, courts, and social change. There are those, myself included, who will worry about a variety of intended or unintended effects on students of stories that depend upon a Robert Bork like-presumptive pessimism (Bork 1990, 1996) about the virtually total degradation of law and society, to say nothing of the effects of the Bork-like presumption that moral rightness is all on one side. It is arguable whether, for better or for worse, the explicit and tacit stories of law and culture are sufficient to counter-balance those effects; if teachers worry about that, then they might consider the use of social science texts, such as Gerald Rosenberg's The Hollow Hope (1991), to help do the job. At any rate, on balance the eloquence, and even pathos, of this sermon will teach students important lessons about intellectual resolve in the face of adversity; and the sermon, if not taken as gospel, has the potential, intentionally and unintentionally, to teach important lessons about the strengths and weaknesses of radical social and legal criticism.
 

Bork, Robert H. 1990. The Tempting of America. New York: The Free Press.

Bork, Robert H. 1996. Slouching Towards Gomorrah. New York: HarperCollins Publishers.

Rosenberg, Gerald N. 1991. The Hollow Hope. Chicago and London: The University of Chicago Press.