Where Do the Prophets Stand?: Hamdi, Myth and the Master's Tools

What is the relationship between critical theory and law? Have people like Patricia Williams, Robin West, Kimberle´ Crenshaw, Richard Delgado, Mari Matsuda, and the late Derrick Bell been standing for over thirty years outside the gates of a walled city, critiquing the work of its inhabitants? Many traditionalist leaders seem to think so. Inside the city, they go about their work unaffected, using the same language and methods they learned from their mentors. Occasionally a traditionalist defender reacts to the prophets, usually with name-calling derision. Richard Posner, for instance, has accused critical race theory of repudiating reasoned argumentation and choosing storytelling instead. He has called critical race theorists “whiners and wolf-criers,” coming across as “intellectually limited.” He says that their presence in law schools is a disgrace and their scholarship is “bunk.” Having hurled his attack over the city walls, he goes back to his own work, unaffected by oppositionist critique. Posner and others like him thus maintain that oppositionists stand outside the gates of law. True, few traditionalists have tried to understand the oppositionist critique, but frankly, oppositionists have often failed to speak in a language traditionalists can understand. The result has not been pretty. The 25th anniversary of the publication of Peter Goodrich’s Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis offers a chance to do better. This article uses narrative theory and cognitive science to help traditionalists begin to understand critical theory – specifically, why critical theory insists on telling stories and why those narrative critiques are legitimately a part of law. In traditional law talk, the controlling meta-narratives are kept implicit. We don’t speak of those things. But like psychoanalysts looking for what lies beneath an explicit behavior, oppositionists look deeper to ask what is really going on. Can such questions be asked inside the wall? The article begins with what Posner says he wants – logical argument – to “reason” its way to the conclusion that critical theory critiques law from the inside. Part of that argument is the premise that master stories operate at a largely unconscious level beneath the language of law. To demonstrate that premise, we look at the role of one myth – the myth of redemptive violence – in legal decision-making. The article explains the myth and how it is pervasively reinforced through movies, video games, and other media, and then shows how it affected the deliberations in Hamdi v. Rumsfeld, the saga of an American citizen imprisoned without due process by his own government. Deductive argument cannot be the end of the matter, however, because what we mean by “law” is not a matter of some logical structure – mine or anyone else’s. Rather, it is a matter of human choice, and thus is driven by contested values and frames. The article ends with some reasons for choosing to define law broadly enough to include oppositionist critique. A primary difference between the Right and the Left is the starkly different set of constitutive myths and metaphors each uses to structure the world. The question for each of us, including for judges, is which set of myths we will choose to live within. We can call them law, or not, but that’s where the real action is.