of 44/44
Brooks, Hannah 1/10/2014 For Educational Use Only BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985 © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 103 Harv. L. Rev. 985 Harvard Law Review March 1990 BEYOND CRITICAL LEGAL STUDIES: THE RECONSTRUCTIVE THEOLOGY OF DR. MARTIN LUTHER KING, JR. Anthony E. Cook a Copyright 1990 by the Harvard Law Review Association; Anthony E. Cook Critical legal scholars have sought to transform American society. By demonstrating the contingent and subjective nature of the legal system they have hoped to liberate people to conceive of and create more just communities. In this Article, Professor Cook argues that CLS' theoretical critique of liberal society does not provide an adequate basis for reconstructing just communities. He demonstrates that consent to oppressive authority does not rest on reason and logic alone, but instead must be explained as the result of concrete factors such as religious experiences, which may in turn undermine that authority. Only a historically specific and experiential analysis, contrasted with a more abstract theoretical analysis, can expose both the liberating and legitimating dimensions of hegemonic ideologies like Chrisianity and liberalism. Professor Cook argues that Dr. Martin Luther King, Jr., grappled with many of the theoretical questions facing CLS but also engaged in three additional activities: experiential deconstruction, reconstructive theorizing, and social struggle. Drawing upon the specific experiences of African–Americans, King synthesized disparate strands of theological and political thought and created a prophetic vision of a reconstructed society. Ultimately, through his analysis of King's method and work, Professor Cook offers us a blueprint for critical activity that is neither solely deconstructive nor dependent on abstract meaning. In recent years, criticism of the Critical Legal Studies (CLS) movement by minority legal scholars has intensified the controversy surrounding *986 this body of nontraditional scholarship. 1 Although initially inspired by the zeal with which CLS adherents questioned the legitimacy and exposed the oppressiveness of legal ideology, some minority scholars are troubled by CLS' reluctance to acknowledge the unique relationship between law and the history of American racism. 2 These scholars assert that CLS' critique of the liberal state, and that critique's implicit constructive vision, fail to appreciate the role the state can play in neutralizing and eradicating ubiquitous racial oppression. 3 Furthermore, minority scholars have criticized the failure of the CLS movement to acquaint itself with the history and perspective of those who have, in different contexts, endured the problems of most concern to CLS—problems associated with hierarchy, powerlessness, and legitimating ideologies. 4 Given this context, this Article has two goals. First, by focusing on the African–American Church and its role in the struggle for African–American liberation, I hope to foster a greater knowledge of, and appreciation for, the concrete experiences of the powerless and oppressed. I contend that such knowledge and appreciation is indispensable to CLS' primary project of deconstruction. 5 Second, I wish *987 to point out the particular relevance of the critical theology of Dr. Martin Luther King, Jr., 6 for the increasing numbers of legal scholars who have begun to look to religion as a potential source for alternative conceptions of community. 7 As the towering organic intellectual 8 of twentieth-century American life, King integrated theory, experience, and transformative struggle to create a rich and effective form of critical activity.

Beyond Critical Legal Studies the Reconstructive Theology of Dr Martin Luther King, Jr., Anthony E. Cook

  • View
    99

  • Download
    9

Embed Size (px)

DESCRIPTION

Anthony Cook takes a step back from critique to look at the teachings and ideologies of Dr. King.

Text of Beyond Critical Legal Studies the Reconstructive Theology of Dr Martin Luther King, Jr., Anthony E....

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 1

    103 Harv. L. Rev. 985

    Harvard Law ReviewMarch 1990

    BEYOND CRITICAL LEGAL STUDIES: THE RECONSTRUCTIVETHEOLOGY OF DR. MARTIN LUTHER KING, JR.

    Anthony E. Cook a

    Copyright 1990 by the Harvard Law Review Association; Anthony E. Cook

    Critical legal scholars have sought to transform American society. By demonstrating the contingent and subjective nature of thelegal system they have hoped to liberate people to conceive of and create more just communities. In this Article, Professor Cookargues that CLS' theoretical critique of liberal society does not provide an adequate basis for reconstructing just communities.He demonstrates that consent to oppressive authority does not rest on reason and logic alone, but instead must be explainedas the result of concrete factors such as religious experiences, which may in turn undermine that authority. Only a historicallyspecific and experiential analysis, contrasted with a more abstract theoretical analysis, can expose both the liberating andlegitimating dimensions of hegemonic ideologies like Chrisianity and liberalism. Professor Cook argues that Dr. Martin LutherKing, Jr., grappled with many of the theoretical questions facing CLS but also engaged in three additional activities: experientialdeconstruction, reconstructive theorizing, and social struggle. Drawing upon the specific experiences of AfricanAmericans,King synthesized disparate strands of theological and political thought and created a prophetic vision of a reconstructed society.Ultimately, through his analysis of King's method and work, Professor Cook offers us a blueprint for critical activity that isneither solely deconstructive nor dependent on abstract meaning.

    In recent years, criticism of the Critical Legal Studies (CLS) movement by minority legal scholars has intensified the controversysurrounding *986 this body of nontraditional scholarship. 1 Although initially inspired by the zeal with which CLS adherentsquestioned the legitimacy and exposed the oppressiveness of legal ideology, some minority scholars are troubled by CLS'reluctance to acknowledge the unique relationship between law and the history of American racism. 2 These scholars assertthat CLS' critique of the liberal state, and that critique's implicit constructive vision, fail to appreciate the role the state canplay in neutralizing and eradicating ubiquitous racial oppression. 3 Furthermore, minority scholars have criticized the failureof the CLS movement to acquaint itself with the history and perspective of those who have, in different contexts, endured theproblems of most concern to CLSproblems associated with hierarchy, powerlessness, and legitimating ideologies. 4

    Given this context, this Article has two goals. First, by focusing on the AfricanAmerican Church and its role in the strugglefor AfricanAmerican liberation, I hope to foster a greater knowledge of, and appreciation for, the concrete experiences ofthe powerless and oppressed. I contend that such knowledge and appreciation is indispensable to CLS' primary project ofdeconstruction. 5 Second, I wish *987 to point out the particular relevance of the critical theology of Dr. Martin Luther King,Jr., 6 for the increasing numbers of legal scholars who have begun to look to religion as a potential source for alternativeconceptions of community. 7 As the towering organic intellectual 8 of twentieth-century American life, King integrated theory,experience, and transformative struggle to create a rich and effective form of critical activity.

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 2

    In attempting to reconcile the contradictions of various theological perspectives, King undertook a project similar to that ofCLSto understand the hegemony of repressive ideologies 9 and to deconstruct the limits they appear to set on the possibilitiesof change. Moreover, *988 King was deeply committed to the reconstruction of a social reality based on a radically differentassessment of human potential, a vision he often referred to as the Beloved Community. As a result, a closer examinationof King's intellectual odyssey may provide valuable insight to those CLS scholars interested in not merely explicating an unjustsocial order, but reconstructing a just community.

    My study consists of two parts. Part I begins with a general overview of deconstruction, starting with a jurisprudential historyintended to elucidate its general aims and purposes. A critical analysis of Lockean liberalism serves as a case study of theinsights and limits of deconstruction. Next, I examine how the limits of theoretical deconstruction constrain critical scholars intheir attempt to articulate an alternative conception of community. A myopic project of deconstruction may ultimately resultin a reconstructive vision as oppressive and alienating as the conception of community deconstructed. In Part II, I offer amore effective model of critical activity, illustrated by the thinking and works of Dr. Martin Luther King, Jr. I argue thatKing was an organic intellectual engaged in philosophical praxis' consisting of four interrelated critical activities: theoreticaldeconstruction, experiential deconstruction, reconstructive theorizing, and collective acts of transformative social struggle.Whereas CLS proponents are primarily engaged in the first andto the extent of understanding how liberal ideology isexperiencedthe second forms of critical activity, King embraced a full philosophical praxis that has, on the whole, eludedCLS proponents and hampered the development of critical legal theory.

    I. THE LIMITS OF THE CLS PROJECT

    A. The Project and the Problem

    In many ways, the CLS critique built on the earlier work of the Legal Realist movement, 10 which argued that because onecould reasonably deduce opposite conclusions from any given rule or principle, legal rules were necessarily indeterminate. 11

    According to the Realists, judicial decisions fostered the view of decisionmaking as a logically compelled and mechanicalprocess that foreclosed the need for empirical *989 research to inform the judge's choices, when in reality the principles andrules from which decisions were supposedly deduced could as logically justify contrary conclusions. 12 Judges could thereforenot avoid a policymaking role. 13 The question was whether lawyers and judges would be informed and scientific policymakers,enlightened by the insights of social science research, or would instead continue down a path of ignorance and darkness. 14

    The Realists, however, failed to consider fully the implications of their insights. The Realists' commitment to empiricismunderstanding reality through social science researchdiverted them from critically examining the values and beliefs thatprovided the backdrop against which research was conducted and judicial choices were made. 15 In addition, the assimilation ofmany Realists into Roosevelt's New Deal Administration hastened the turn to reforms that assumed the validity of the prevailingbackdrop values. 16

    CLS has unabashedly challenged the accepted values of classical liberalism by undermining the interpretations of privateproperty, individual rights, equality of opportunity, meritocracy, and governmental power that sustain and reproduce oppressivehierarchies of wealth and power. 17 Although liberalism purports to effect a neutral reconciliation *990 between individualfreedom and the collective constraints needed to preserve that freedom, CLS suggests that such neutrality is inherently illusory.Through structured argumentation based on manipulable legal categories, the legal system legitimates a status quo characterizedby vast inequalities of wealth and power. 18

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 3

    The CLS challenge thus goes beyond the Realists' indeterminacy critique, not only by refuting the implicit values of the Realists'scientific' approach, but also by seeking to understand why people acquiesce in the social systems that oppress them. CLSasks how the backdrop values, which are in fact indeterminate, find their way into mass consciousness as conventional wisdom,thereby limiting the range of acceptableor even conceivablesocial arrangements. 19 CLS scholars purport to show that oursocial-political world, from which law is inseparable, is of our own making. 20 Just as there is nothing determinate, necessary,or natural about the application of legal rules, the way we live and relate to others is also a matter of choice. 21 We *991can choose to structure our institutions in hierarchy and dominance, and limit our understanding of others and ourselves to thedistorted roles and images generated by social rules and laws. Or we can choose to alleviate the alienation and loneliness thatstifle our societal needs and impulses by restructuring those institutions and practices that distance us from others and cause usto perceive others with trepidation and suspicion. 22 None of what we now experience and blindly accept is carved in stone.If we despair over our present social orderand CLS believes that many of us do, whether we realize it or notwe can hewout of the mountain of despair a stone of hope.' 23

    But how do we begin this reconstructive enterprise? What use do we make of our newfound liberation? If we are free to definecollectively our existence and to transcend our present context, are we any better equipped to act than before? How do we knowthat the community to which we aspire is better than the social order we transcend? How do we know that a world of love,understanding, and mutual trust awaits us, rather than a world of greater oppression and alienation, filled with the uncertaintiesborn of the knowledge that all that separates civility from brutality is our faith in the goodness of humankind? 24 In short, whatvalues and concerns will guide us in this reconstructive moment?

    *992 The failure to address these important questions constitutes the most significant shortcoming of the CLS project, whichis in part explained by the fact that the answers' can only develop, tentatively and in fits and starts, through the concreteexperiences of struggle and survival. Yet CLS consistently deemphasizes the individual and institutional experiences of thosewho are subjugated. Thus CLS' theoretical deconstruction of liberalism fails to explainor even askwhy subordinatedindividuals, those most disadvantaged by hierarchies of wealth and power, place such faith in the liberal state.

    There are at least three possible explanations for this faith of subordinated peoples. The first possibility is false consciousnessthat the rhetoric of liberalism has duped those at the bottom of the social and economic hierarchy. Liberalism's protestationsof equality, fairness, and neutrality have convinced them that their disadvantages are somehow just, perhaps because otherresults have advantaged them in the past or may do so in the future. The second possibility is denialthat people want tobelieve that the system is working as it claims, although they know that it is not. Continued faith in the disproven values ofneutrality and objectivity may allow us to avoid the onerous reality that life is what we make of itno more and no less. Finally,individuals may suffer from neither false consciousness nor denial, but may simply be ostracized or marginalized, limited bythe existential constraints of enslavement, apartheid, intimidation, or poverty that make meaningful social struggle difficult ifnot impossible. 25

    The kind of deconstruction to which CLS is methodologically committedwhat I characterize as theoretical deconstructionwith a limited experiential deconstruction'may indeed liberate the first grouping, people duped by the rhetoric of liberalism.Such individuals have not perceived the contradictions of their belief systems and have not confronted the harsh realities oftheir existence. Thoughtful discussion and examination may liberate them from the mental constructs that limit their self-actualization.

    People in the second grouping do not suffer from false consciousness. Although theoretical deconstruction can serve as acatalyst to generate a sense of empowerment, these people are most in need of constructive goals of social struggle and practicalstrategies of mobilization. They lack a sense of community with those who share their feelings and who are willing to engage

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 4

    in various forms of collective social struggle to transform existing conditions. The knowledge that *993 they are not alonein their pain and isolation is often enough to shake these people from the stupor of their self-denial, and encourage them toformulate the goals of social struggle and adopt viable strategies for securing those goals.

    People in the third grouping suffer from neither false-consciousness nor self-denial. Rather, the dominant powers' use of variousmethods of coercion and social control simply does not provide much space for substantive struggle. Critical activity must focushere on alleviating these existential constraints, as well as on exposing the role of ideology in maintaining those constraints.

    Theorists in search of alternative foundations for human community, those seeking to replace one kind of faith with another, 26

    must embrace a form of critical activity that deals with the problems of those suffering from false consciousness, denial, andexistential subjugation. By themselves, theoretical deconstruction and an experiential deconstruction preoccupied with theoppression of liberalism cannot achieve this objective. Although theoretical deconstruction is important, the ultimate goal ofcritical theory should be the reconstruction of community from the debris of theoretical deconstruction, a project capable ofreaching each of the groupings outlined above. I suggest in this Article that the prophetic Christianity of Dr. Martin Luther King,Jr., 27 as well as the most enabling assumptions of liberal theory, 28 provide sturdy ground for this reconstructive endeavor.

    B. The Theoretical Deconstruction of Lockean Liberalism

    Theoretical deconstruction identifies underlying assumptions, exposes those presuppositions as value choices of the theorist,and demonstrates the indeterminacy of those valuesthat no one vision of *994 community is logically compelled by thevalues chosen. Yet, as a critical tool, theoretical deconstruction has several limits. In this section, I provide a framework for thetheoretical deconstruction of John Locke's liberalism, 29 and then illustrate the limits of theoretical deconstruction by showingthat Locke uses religion to legitimate an oppressive social order that reason alone cannot legitimate. 30

    First, I outline Locke's conception of community and theoretically deconstruct his attempt to legitimate objective authority byderiving it logically from his assumptions about human nature. I argue that Locke's conception of human nature is incoherent,historically situated, and indeterminate; as a result, Locke's vision of community is neither natural nor necessary. Next, I explorehow Locke uses religion to develop a deference to authority that neither reason nor state coercion could fully compel. In otherwords, I argue that Lockean liberalism is based on both coercion and consent, the latter shaped by religion as well as by theunexamined assumptions of Locke's political theory. The role of religion in legitimating Lockean liberalism highlights the limitsof theoretical deconstruction and the need for critics to engage in what I call experiential deconstruction.DD'

    1. Legitimating Authority: The Theoretical Deconstruction of Lockean Liberalism.In his Second Treatise of Government,Locke seeks to legitimate political power 31 by deducing it from an original state *995 of nature characterized by perfectfreedom and equality. Within the state of nature, all are perfectly free to appropriate that which was held in common as privateproperty and to dispose of their [p]ossessions and [p]ersons as they think fit, within the bounds of the Law of Nature,' 32without having first to secure the permission of others. This freedom creates a formal equality among individuals becauseeach person enjoys the same relationship to the law of nature, 33 and is obliged by that law to do no harm to another's Life,Health, Liberty, or Possessions.' 34 Political power is necessary to safeguard the disparate accumulations resulting from Locke'sformal freedom and equality. Because varying industry, conditions of birth, and skills among individuals will result in varyingaccumulations of private property, causing conflicts between the haves and have-nots, the state's task is to protect the naturalrights of property holders from the aggressions of the propertyless. The latter are subject to the laws of civil society, althoughthey cannot constitute the body responsible for the promulgation of such laws. 35 Locke objectifies the propertyless as things'to be managed and controlled by the state, as mere means to the propertyholders' end of happiness. 36

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 5

    *996 Locke's theory succeeds in casting a light of naturalness and necessity over grave inequalities of wealth and power, butfails to articulate an objective, neutral, and determinate foundation upon which to base a legitimate civil authority, one to whichall reasonable people should consent. From the presupposition that human nature is characterized by the rational appropriation ofprivate property, Locke seeks to legitimate his repressive social order. But the protection of private property does not constitutean objective and neutral criterion by which the state can establish the boundaries between permissible collective coercion andimpermissible invasions into spheres of individual right, because that conception of human nature is dubious. Indeed, Locke'stheory, which portrays individuals as equal before the laws of nature but subject to vast inequalities of wealth and power, issusceptible to three versions of theoretical deconstruction. First, Locke lacks a single unitary conception of human nature fromwhich a coherent theory of community can be deduced. Second, if he does have a consistent conception of human nature, heerroneously assumes that it is a universally valid one. Finally, even if Locke has one consistent and universally valid conceptionof human nature, that conception is indeterminate and does not dictate with any specificity the kind of community we shouldchoose.

    Each of these critiques seeks to demonstrate that there is nothing magical or sacred about where Locke draws the line dividingthe public sphere in which all are deemed equal and the private in which inequalities are anticipated and legitimated. The public-private line is drawn according to his theory of human naturethe theory from which he deduces his conception of community.Thus, if we wish to demystify and delegitimize the latter, and thereby free the mind to consider alternative conceptions ofcommunity, we must begin with a critique of Locke's theory of human nature.

    The incoherency critique observes that if Locke deduces what he considers a natural and necessary social order from anincoherent conception of human nature, his conception of social order need not be accepted as legitimate. It exposes how Lockeprivileges one conception of human nature over another and demonstrates that the dominant conception is as dependent onits subordinate conception as *997 the latter is on the former. 37 Because both conceptions are essential to his theory, then,his privileging of one over the other is incoherent, and his supposed deduction of social order from the dominant conceptionis contrived rather than natural. Locke states at one point that his state of nature is a State of Peace, Good Will, MutualAssistance, and Preservation' rather than a State of Enmity, Malice, Violence, and Mutual Destruction.' 38 Thus, Lockeprivileges a conception of human nature that is fundamentally good, reasonable, and cooperative over a Hobbesian oppositethat is fundamentally evil, compulsive, and self-interested. He privileges the conceptions in this manner because he seeks toavoid the Hobbesian conclusion that sovereign power must be absolute. Such power constitutes an unacceptable threat to theprotection of private property that is the raison d'tre of Locke's political theory.

    But Locke cannot easily escape the Hobbesian conception, for his own conception of human nature must ultimately depend onit to justify the social order described above. For instance, individuals agree to enter civil society primarily because their privateproperty is threatened by others who are noxious, degenerate,' and have quit the principles of human nature.' 39 ThusLocke's conceptions of human nature appear to be divided between the industrious and the rational' and the quarrelsome andcontentious.' 40 Given Locke's initial description of the state of nature, however, from where did the latter persons come? 41

    At one point, he characterizes these individuals *998 as constituting the majority of those in the state of nature. 42 TheseHobbesian types, and the threat they pose to Locke's privileged types, make civil society necessary. Locke's hierarchicalopposites are thus different but mutually dependent. Neither can be fully understood without the other, and, more importantly,each is equally necessary to explain Locke's social order.

    On the one hand, if human nature is more like Locke's initial description, it is difficult to see why civil society is necessary. Onthe other hand, if individuals are capable of lawlessness and transgressions from the beginning, it seems unlikely that the peaceand order depicted by Locke's initial conception could ever have existed outside the bounds of a coercive civil society that creates

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 6

    and enforces a particular set of property relations. If the latter is true, it is impossible to understand property relations as naturaland determinative of Locke's social order. Property and the laws that protect it are one and the same. Thus, the incoherencycritique delegitimizes Locke's oppressive social order and demonstrates that we need not accept it as natural or necessary.

    The universality critique contends that even if we find Locke's conception of human nature coherent, we need not accept thatconception as universally valid. As one scholar of deconstruction observed:The principles of a social theory like Liberalism tell a story about human nature, which some accept and others criticize.

    . . . But the deconstructive critique reminds us that our social vision and system of laws are not based upon human nature asit really is, but rather upon an interpretation of human nature, a metaphor, a privileging. We do not experience the presence'of human nature; we experience different versions of it in the stories we tell about what we are really like.' These storiesare incomplete; they are metaphors and can be deconstructed. Too often we forget that *999 our systems of law are basedupon metaphor and interpretation; we mistake the dominant or privileged vision of people and society for real present' humannature . . . . 43

    Why should Locke's characterization of humans as universally rational appropriators of private property be accepted? Criticshave contended that Locke is reading into human nature the attributes of human behavior he most wanted to extol and justify. 44Thus, Locke's rational appropriator of private property is merely an abstraction from his own emerging market society, and histheory is reduced to an apology for the emerging capitalist interests of his day. The moral of the universality critique is that whatone discovers as a universal attribute of human behavior depends largely on who is searching, what she hopes to find, and thebroader social context in which the search takes place. Thus, even if we believe that Locke's vision of community is predicatedon a coherent conception of human nature, the universality critique calls into question the static, universal applicability of hisinitial premises, and therefore delegitimizes the inherent necessity of Locke's oppressive community.

    Finally, the indeterminacy critique contends that even if Locke's conception of human nature is coherent and represents auniversally valid description of what it means to be human, it fails fully to determine any specific conception of community.As Professor Balkin has put it:

    Any social theory must emphasize some human values over others. Such categorizing necessarily involvesa privileging, which in turn can be deconstructed. But the goal of deconstruction is not the destruction ofall possible social visions. By recalling the elements of human life relegated to the margin in a given socialtheory, deconstructive readings challenge us to remake the dominant conceptions of our society. 45

    If we accept the contention that humans are rational appropriators of private property, we might deduce any number ofconclusions about the nature of community in which we are to live. We might accept Locke's vision as plausible but not logicallycompelled. For instance, Locke bestows the blessings of his social order on those who have private property as a reward fortheir understanding and use of the laws of nature. But this value choice does not necessarily follow from his presuppositions.

    The natural impulse to appropriate and protect private property need not result in a pervasive system of private ownership.Perhaps the natural impulse is satisfied far short of the unlimited accumulation *1000 of private wealth legitimated by Locke'stheory. Even if the laws of nature obligate individuals to secure the greatest possible satisfaction of this natural impulse,this satisfaction may best be attained through the development of small scale cooperatives in which individuals share in theownership and responsibilities attending property with others of the community.

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 7

    Thus, the indeterminacy critique delegitimizes the social order that Locke sees as natural and necessary by reminding us thatthe first principles and values on which social theories are based are so vague that they may be logically compatible with anynumber of social visions. We remain free to make our own world, and are not compelled to accept mechanically the one madefor us by others.

    2. The Limitations of Theoretical Deconstruction: Locke and the Reasonableness of Christianity.All three forms of theoreticaldeconstruction outlined above establish that we are free to question, reformulate, and reconstruct our conceptions of community,an effort that remains profoundly normative. Notwithstanding our commitment to postulates we feel are empirically true andtruly reflective of reality, nothing mechanically determines our choices. The problem is that logic and reason alone can bridgeneither the gulf dividing Locke's state of nature and the civil society he believes naturally follows therefrom, nor his conceptionof human nature and the theory of legitimate authority to which individuals should reasonably consent. The faith of religion isthe bridge that carries the theory from is' to ought,' from dissension to consensus.DD'

    Experiential deconstruction, on the other hand, provides a more contextualized and historicized analysis. Its historical specificityenables us to see factors missed by a more abstract theoretical deconstruction. Experiential deconstruction might explain,for instance, how and why individuals continue to defer to oppressive authority even after theoretical deconstruction hasundermined the logical premises upon which the social order is built. Like the discussion of theoretical deconstruction above,the following is not a comprehensive experiential deconstruction but simply some initial observations about the ways such anapproach might reveal the role of religion, as part of the historically specific cultural framework within which Locke's theoriesdeveloped, in fostering deference to an oppressive social order. This is not to say that the approach would not have identifiedother factors like coercion, racism, sexism, and economic subjugation at work. By examining religion, the most obvious factorgiven Locke's work, I merely wish to illustrate how experiential deconstruction might enrich our understanding of oppression.

    Locke used religion as a noncoercive means to legitimate and foster submission to authority. As he put it, [t]he view of heavenand hell will cast a slight upon the short pleasures and pains of this present *1001 state.' 46 To understand how Locke couldexpect certain members of society to consent to his vision of community, a vision riddled with inconsistency, inequality, andoppression, we must understand the bridges he built between religion and politics. 47

    Locke believed that religion would lead even those most disadvantaged by his political philosophy and social compact to accepttheir subordination within the new hierarchy as necessary and the authority that maintained their oppression as legitimate. InThe Reasonableness of Christianity, 48 Locke concedes the deficiencies of unassisted Reason.' Under the philosopher's quill,the burden of virtue is too onerous, its teaching too complicated for the masses to grasp, and its practice too time-consumingfor those forced to survive by the sweat of their brow. 49 Political philosophy linked to true and saving faith, *1002 however,could for the first time instruct individuals in the elements of a clean conscience . . . a steady course of virtue . . . [and] a strictand holy life.' 50 Locke claims that Christ's coming brought virtue within the common person's reach. With Christ, faith isreckoned unto the believer as righteousness, and belief in Jesus as the son of God is sufficient for salvation.

    Thus, Locke encouraged instruction that emphasized simple articles of faith, and rejected the institutional history of the Church.Religious toleration and the separation of church and state meant that those at the top of the secular hierarchy could no longeruse religion to legitimate their power and their vision of world order. Nor could they use political power to impose religiousviews that would support their power. At the same time, the collapse of the oppressive link between church and state aided thedevelopment of a market economy and a social order based on wealth rather than birth.

    Locke contended that religious toleration would educate people to respect political authority. As one student of Locke's theologyputs it: Given toleration, churches will spontaneously educate their members in 'good citizenship' by teaching that political

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 8

    claims cannot be [based on] man's inner life as symbolized by faith. Free churches teach and practice public distrust in the nameof men's private search for the highest and most intensely personal good.' 51 Distrust of government and collective actionsupported, then, the natural right to an unlimited accumulation of private property free from the redistributive demands of thecollectivea position valorized by Lockean liberalism. 52

    Locke believed that Jesus' coming and transcension of the written law of the Old Covenant of Moses created a religious stateof nature *1003 in which individuals had to depend on Reason to observe the law of the spirit, 53 a law transcending the letterof the law. Those who obey the law of nature in the secular context are the equivalent of good Christians who, in the religiouscontext, subordinate the evil weaknesses of the flesh to the law of God in the inward person. In this state of nature, the role ofthe political philosopher was to link the religious law of the spirit to the secular law of nature through rules of moral practice

    that related to and reinforced both. 54

    In this way, Locke's theology solves' the problems of incoherency and universality. Examined from the perspective ofChristian theology, Locke's seemingly contradictory conceptions of human nature in the state of nature now make sense asthe struggle between good and evila struggle between the desire to observe the laws of God and the frailties of sinfulflesh. 55 Locke's conception of human nature is not confused about whether people are fundamentally good or evil, law-abidingor transgressive. Instead, his theory might be viewed as a secularized version of the Christian dichotomy of human nature;individuals in the state of nature are both good and evil, lawful and transgressive. Furthermore, this Christian perspective onhuman nature may well be accepted by many as universally valid, especially if, as Locke urges, religious instruction significantlyshapes deference to authority.

    The indeterminacy critique accepts the foregoing, but claims, nevertheless, that alternative visions of community can be deducedfrom these assumptions. Although we need not accept Locke's vision of community as the only legitimate one, Locke mighthave safely assumed that many, including those most disadvantaged by his vision of community, would nonetheless view theauthority that oppressed them as legitimate. Locke's political philosophy was ultimately a project of constructing a naturalmorality that resonated with and was reinforced by human experiences and religious beliefs.

    It is unsurprising, then, that Locke's entire theory is replete with Christian symbolism, imagery, and explicit references toscriptureattempts to bridge the gap between the religion of the common people *1004 and the philosophy of the elite. WhenLocke declares his law of nature that being all equal and independent, no one ought to harm another in his Life, Health,Liberty, or Possessions,' he supports it with religious argument. 56 We are the property of God, he tells us, because we areGod's creations. Therefore, we are made to last during his, not one anothers Pleasure' and, thus, we cannot suppose anySubordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses.' 57

    Similarly, Locke's assertion that the law of nature applies as much to a person's accumulated possessions as it does to his physicalperson was reinforced by religious tradition that individuals deserve to be rewarded in relation to the labor they have expended.Locke's argument would not seem outlandish to those conditioned by this conventional morality and religious instruction.Locke's argument that accumulation is the just reward of a person's labor closely parallels Jesus' parable of the talents:

    Then he which had received the one talent came and said, Lord, I knew thee that thou art an hard man,reaping where thou hast not sown, and gathering where thou hast not strawed: And I was afraid, and wentand hid thy talent in the earth: lo, there thou hast that is thine. His lord answered and said unto him, Thouwicked and slothful servant, thou knewest that I reap where I sowed not, and gather where I have notstrawed: Thou oughtest therefore to have put my money to the exchangers, and then at my coming I shouldhave received mine own with usury. Take therefore the talent from him, and give it unto him which hathten talents. For unto every one that hath shall be given, and he shall have abundance: but from him that hath

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 9

    not shall be taken away even that which he hath, And cast ye the unprofitable servant into outer darkness:there shall be weeping and gnashing of teeth. 58

    The parable operates at two levels in legitimating the Lockean vision of community. At one level the hearer understands thatthis is a parable and that Christ is merely using a familiar example to explain a not-so-familiar conceptthe kingdom of God.Nevertheless, the juxtaposition of natural experiences concerned with property, acquisition, profit, and material wealth with asupernatural world focused on salvation and heavenly rewards provides a subtle and indirect legitimacy of the former whenthere is faith in and admiration of the latter. 59

    *1005 At another level, a preoccupation with the spiritual dimension of works for heavenly rewards directs attention awayfrom earthly inequities and disparities of wealth and power and toward a place unlikely to threaten the property interests ofthose most protected by Locke's theory. Locke saw Jesus as establishing a universal morality capable of directing individualstoward obligation: We have from him a full and sufficient rule for our direction, and conformable to that of reason.' 60 Thus,a superficial reading of the parable seems doubly to support Locke's claim that while God gave the earth to people in common,He gave it especially to the industrious and the rational.

    In conclusion, Locke's theory of religion is intricately woven into his political philosophy. As a result, a theoreticaldeconstruction too narrow in scope may fail to emphasize Locke's overall vision. Locke depended on the interplay amongreligion, political philosophy, and conventional morality to shape consensus and to legitimate authority in a way that reasonand coercion alone could not. Only a more contextual approach to deconstruction, one that more fully explains the conditionsof choice, can explain the legitimating role of religion in his theory. This supplemental perspective, which I call experiential

    deconstruction, is a dimension of critical activity vital to the work of an organic intellectual. 61

    C. Critical Legal Studies and Reconstructive Vision

    Just as theoretical deconstruction may overlook the legitimating role of religion in reconciling the oppressed to their subordinatepositions, it may also fail to appreciate the legitimating role of race and other ideologies. Conversely, theoretical deconstructionmay overlook the liberating dimensions of ideologies like religion and rights. Yet such observations may significantly influencethe reconstructive vision. In this section I examine the relationship between a limited conception of deconstruction and thedeficient reconstructive project found in the CLS critique.

    1. Critical Legal Studies: A Summary.[W]hat happens is people start translating their political feelings into unconscionability arguments or right-to-privacy argumentswithout realizing that there is a weird dissociation taking place . . . . Without even knowing it, they start talking as if we' wererights-bearing citizens who are allowed to do this or that by something called the *1006 state,' which is a passivizingillusionactually a hallucination which establishes the presumptive political legitimacy of the status quo. 62

    Many CLS scholars see the liberal conception of community as heavily dependent on the faith that the state can and does setcommunity-defining boundaries that establish the limits of collective action through the neutral application of objective anddeterminate principles. 63 Although sovereignty is theoretically vested in the people,' the specific nature and conditions ofthat sovereignty are the subject of a legal' text and subject to the interpretation of a judicial aristocracy' of federal judges. 64CLS asks, On what grounds can the people be legitimately robbed of this sovereignty? One response is that the courts must

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 10

    enforce the boundaries articulated by the Constitution that define the spheres of privacy within which the collective cannotintrude. This enforcement requires a delicate balancing between individual rights and duties. The apparatus of liberal rightsmediates the relationship between ourselves and others whose cooperation both threatens and is indispensable to our survival.Under liberal theory, the process of mediation requires the establishment of *1007 private spheres of autonomy into whichothers are not permitted to intrude. A liberal discourse of abstract rights and duties purports to map out the borders of theseprivate spheres of autonomy and to set the conditions under which they may be justifiably disregarded.

    The most troubling aspect of this story of neutrality and dispassionate adjudication is that those in power draw the linebetween public and private to preserve the distributions of wealth and power that limit transformative change and preservehierarchies directly or indirectly benefiting them. How does CLS respond to this problem? One way is by showing the inherentindeterminacy of line-drawing. We have examined this approach; it deconstructs ideology at the level of both social and legaltheory. Another way is by offering an alternative vision of community, a new way of drawing the lines between rights andduties. CLS has not done very much of this, although its negative critique implies such a vision, and its analysis occasionallysupports such alternatives.

    The alternative vision begins with a different conception of the self. Because liberal theory is thought to legitimize its socialorder by deducing it from specific conceptions of human nature, some have thought it necessary to posit a different conceptionof human nature in order to deduce a different conception of community transcending the limitations of liberalism. 65 Thatalternative conception of human nature rejects the conceptions offered by classical and contemporary liberal theory. It impliesthat liberal theory has mistaken the symptoms of the individual's condition for its causes. That is, what Hobbes and Lockedescribe as natural merely reflects the individual's alienation from his true nature.

    The individual is not, by nature, an autonomous and acquisitive being desiring to dominate others and appropriate property.Rather, her alienation and loneliness are socially produced. Individuals long for a genuine connection with others, a mutualacknowledgment of their humanity and need for empowerment. However, socially imposed roles temper their desires forconnection with fears of rejection. The regime of liberal rights establishes many of these roles through the distribution of abstractrights and duties that distance us from ourselves and others whom we long to experience in more meaningful ways than ourpresent social existence permits. 66

    *1008 We are lonely because our relationships with each other are distorted by these abstractions, and thus the potential forgenuine connection is always limited by the socially contrived roles we adopt. Landlord/tenant, employer/laborer, professor/student, bank teller/customer, and judge/lawyer are all roles that distance us, diminish our intersubjectivity, and decrease thelikelihood of a sustained sense of community. 67 The liberal state, however, provides us with an alternative community thatreally is no community at all. To mediate the threat posed by others to ourselves, the state fosters an illusion of a communityconsisting of rights-bearing citizens said to be equal before the law and thus members of a community of equals.

    This is problematic because at one level we perceive others as the bearers of rights, as equals in a community of equals. Ata different level, that of the market for instance, we perceive others as a threat, something to be dominated or neutralized inthe acquisitive world of dog-eat-dog.' The day-to-day realities of our private loneliness and alienation belie the image of ourcommunitarian existence as equal political citizens.

    The illusory liberal community is held together by the manipulation of political symbols by elites through their access to themass media and our utter need to believe in community, even when it is utterly absent. That is, we long for community sodesperately that a chief executive's invasion of a small island, bombing of an African country, and general rhetoric of Americanpatriotism shape our conception of community and fill the emptiness we experience daily. 68

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 11

    Given the pervasive sense of alienation characterizing their interactions with others, then, individuals place great faith inthe capacity *1009 of the state to define the nature of community. Part of that definition consists of the state's ability toarticulate and enforce neutral boundaries defining the liberal equality of individuals, their equal freedom within private spheresof autonomy protecting them from the arbitrary incursion of private and collective forces.

    When a careful trashing' of legal doctrine reveals, however, that all things are infused with both public and private qualities,there no longer exists any supposed objective criterion by which to logically characterize all things as either public or private.Under the weight of this analysis, the private-public dichotomy collapses and with it the artificial limitations imposed uponthe possibilities of collective action needed to create alternative forms of community. We need not maintain faith in a state, apassivizing illusionactually a hallucination,' 69 proven incapable of objectively mediating the contradiction between publicand private life.

    The prescription of some, therefore, is to eliminate the state as we know it and, along with it, the artificially generated socialroles that limit the possibilities of our communitarian impulses. In short, some call for a type of decentralized socialismwhere one need not hide behind the private for either protection or self-aggrandizement. Communities where relationshipsmight be just us, you and me, and the rest of us,' deciding for ourselves what we want, without the alienating third of thestate. In that setting . . . we might even make group decisions about reproduction, replacing our pervasive alienation and fearof one another with something more like mutual trust, or love. 70

    Given the description of legitimation discussed above, 71 the implications for social struggle are clear. Activist lawyers mustrecognize that every time they bring a case and win a right, that right is integrated within an ideological framework that hasas its ultimate aim the maintenance of collective passivity. That doesn't mean you don't bring the caseit means you keepyour eye on power and not on rights.' 72 By focusing on the role of law as power, critics constantly remind us that the liberaldiscourse of rights is just one among many systems of meaning that people construct in order to deal with one of the mostthreatening aspects of social existence: the danger posed by other people, whose cooperation is indispensable to us.' 73

    Therefore, nothing about law or our present social order is sacrosanct or compelled by forces independent of our own capacitiesto *1010 envision and construct alternative forms of community. Deconstruction that demonstrates the indeterminacy of bothlegal doctrine and the political assumptions undergirding legal doctrine emphasizes that the kind of community in which welive remains a matter of choicethe important question being who will make those choices.

    2. Critical Legal Studies: A Critique.The CLS emphasis on the legitimating role of liberalism and the dynamics of poweris accurate but dangerously incomplete. It is incomplete for several reasons. First, theoretical deconstruction does not tell thecomplete story. We need to know the full range of conditions that lead people to believe, or act as if they believe, that authorityis legitimate. It may be because of the way they experience liberal ideology and its various dichotomizations of life. It may be,as suggested in my study of Locke, partially related to the influence of religious beliefs on the lives of the oppressed. It may bebecause of such factors as race, gender, poverty, and state and private coercion that individuals remain indifferent, unwilling,or unable to challenge an oppressive status quo.

    Second, when we adopt this more contextual and experiential approach to understanding oppression, we will realize that thereare some liberating as well as legitimating aspects of the line-drawing or boundary-setting enterprise we critique. Democraticsocialism, the American Revolution, the AfricanAmerican civil rights movement, and other social movements were based, inpart, on the liberating dimensions of liberal theory. Failing to recognize this, some scholars unwittingly fall into too simplistican analysis of the problem and its possible solutions. When we appreciate the liberating dimension of ideology, revealed by

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 12

    experiential deconstruction, we might conclude that there are many dimensions of the present system that are good and quiteenabling.

    Thus, although I share critical methods, I question the conclusions of CLS. The CLS critique rightly points out that we neednot accept oppressive institutions and practices as unalterable expressions of truth, because the premises on which they arebased are contradictory and indeterminate at best. The critique suggests, therefore, that we are free to envision and constructalternative forms of community that represent a more accurate or at least more plausible conception of human natureonebelieved to be fundamentally good, which may replace our pervasive alienation and fear of one another with something morelike mutual trust.' 74 But should we be so certain that this optimistic view of human nature is clearly more liberating than theinsights provided by Hobbes or Locke? From this optimistic view, one might envision emerging a quite oppressive communityin which groups, behind the guise of love and mutual dependency, legitimate *1011 behavior that is more oppressive thananything imagined by Hobbes' sovereign. When, therefore, CLS proponents argue that liberalism's public-private dichotomyundermines a society's transformative potential, we should also ask how and when does it advance those efforts. Indeed, if CLS'primary concern is one of legitimation and power, it is important to ask under what conditions the liberal discourse of rightsmay be strategically delegitimizing and substantively empowering.

    The third problem with the CLS critique is that it threatens to conflate the unique histories of the various forms of alienationand oppression engendered by the subconscious acceptance and assimilation of liberal ideology. The experiences of racismand sexismto name but twoare certainly related to the way individuals experience liberalism as oppressive but cannot bereduced to that experience. Therefore, exploration of the various histories of oppression, often ignored by CLS' sometimesreductionist and idealistic account of oppression, can provide an essential basis for any reconstructed community.

    Finally, deconstruction should ultimately lead to a reconstructive vision, which will involve some line-drawing and boundary-setting. CLS should not only explain why liberalism's boundary-setting is problematic; it must also suggest how to redraw thoseboundaries to satisfy other goals.

    In conclusion, I believe CLS too often falls victim to a myopic preoccupation with the limited role of theoretical deconstructionand a too narrowly tailored experiential deconstruction that focuses exclusively on how individuals experience liberalism.Hegemonic ideologies are never maintained by logical consistency alone. Knowledge of how people experience oppression,or knowledge of the full range of conditions under which they remain oppressed, exposes new problems and possibilities.When one begins to contemplate how alternative visions of community might look and be implemented, one must considercarefully the view from the bottom 75 not simply what oppressors say, but how the oppressed respond to what they say. Likethe examination of the role of religion in Locke's theory, the view from the bottom may offer insights into why individualsaccept their subordinate status in society despite the illogic and inconsistency of the dominant ideology.

    It may also provide the basis and catalyst for transformative social change. As I argue below, this is the case with AfricanAmerican prophetic religion. The view from the bottom may cause us to revise our strategy of struggle. If we knew that coercion,religion, race, gender, or some other reality shaped consensus and legitimated authority, *1012 we would devote more energiesto understanding and struggling against those phenomena rather than exclusively channeling our energies into a familiar critiqueof the inherent inconsistencies of liberal theory. In addition, we might begin to rethink the location of struggle, and to spreadour concerns from the sequestered legal academy to religious institutions, community organizations, and the streets.

    II. KING'S CRITICAL THEOLOGY

    The difference between the writings and works of Martin Luther King, Jr., and much CLS thought can be seen in King'sunderstanding of the possibilities and limitations of theoretical deconstruction, his use of experiential deconstruction, his

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 13

    articulation of an alternative vision of community, and his development of strategies to realize that vision. 76 King'sdemonstration of the theoretical indeterminacy of political and religious theories reinforcing oppression drew on a knowledge ofthe specific histories and experiences of oppression. This engagement with history guided his theoretical project and informedhis struggles to reform American society. With the benefit of both theoretical and experiential deconstruction, he committedhis life to mobilizing people of conscience into organizations and movements capable of transforming the theories, institutions,and practices of oppression that his critiques exposed as incoherent, historically situated, and indeterminate. 77 This projectrequired a normative vision of community encapsulated in his conception of the Beloved Community.DD'

    A. King As an Organic Intellectual

    Because he appreciated the dialectic of theory and the broad-based confrontational strategies of socially transformative action,King stands as the paradigmatic organic intellectual of twentieth-century American life. King's method and practice offerdirection to progressive scholars concerned about the exclusionary, repressive, and non-communal dimensions of American life.

    *1013 Gramsci's conception of the organic intellectual provides a useful framework for understanding the thought of King andwhat it has to offer CLS. The organic intellectual brings philosophy to the masses, not for the merely instrumental purposes ofunifying them, but precisely in order to construct an intellectual-moral bloc which can make politically possible the intellectualprogress of the mass and not only of small intellectual groups.' 78 Gramsci's organic intellectual struggles to transformthose who are oppressed as a means of transforming the conditions under which they are oppressed. 79 Gramsci understandsdomination in terms of both coercion and consent, the latter constituting what he refers to as hegemony. Under his formulation,hegemony consists, then, of [t]he 'spontaneous' consent given by the great masses of the population to the general directionimposed on social life by the dominant fundamental group.' 80 Gramsci argues that this consent is 'historically' caused bythe prestige (and consequent confidence) which the dominant group enjoys because of its position and function in the world ofproduction.' 81 Thus, oppression is not only physical and psychological but also cultural. 82

    King, like Gramsci's organic intellectual, empowered his community through a practical effort to bridge the gap between theoryand lived experience. King's work consisted of four interrelated activities. First, he used theoretical deconstruction to free themind to envision alternative conceptions of community. Second, he employed experiential deconstruction to understand theliberating dimensions of legitimating ideologies like liberalism and Christianity, dimensions easily ignored by the abstract,ahistorical, and potentially misleading critiques that rely exclusively on theoretical deconstruction. Third, he used the insightsgleaned from the first two activities to postulate an *1014 alternative social vision intended to transform the conditions ofoppression under which people struggle. Drawing from the best of liberalism and the best of Christianity, King forged a visionof community that transcended the limitations of each and built upon the accomplishments of both. Finally, he created andimplemented strategies to mobilize people to secure that alternative vision. I refer to this multidimensional critical activity asphilosophical praxis.DD'

    Although many critical theorists engage primarily in theoretical deconstruction, and some appreciate certain forms ofexperiential deconstruction, 83 few have embraced either a full experiential deconstruction or the third and fourth dimensions ofphilosophical praxis reconstructive theorizing and socially transformative struggle. 84 These dimensions of critical activitydirectly confront the material conditions of oppression whereas the preoccupation with deconstructing theory does not. Kingwent further than these critical theorists by examining the subtle and complex ways in which consent was shaped, while fullyappreciating the role of state and private coercion in legitimating authority in the lives of the oppressed.

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 14

    This Part examines how King filtered his theoretical deconstruction of hegemonic theologies through his knowledge of thehistory and experience of oppression, and thereby made that theoretical deconstruction richer, more contextual, and ready toengage the existential realities of oppression. The interplay between King's theoretical and experiential deconstruction is bestillustrated by reference to the AfricanAmerican Churchthe institution providing the organic link between philosophy andthe masses, theory and praxis. 85

    My analysis proceeds in four steps. First, I examine how AfricanAmerican religion served at once to legitimate slavesociety, delegitimize that society, and inform alternative visions of community. Second, I examine King's use of theoreticaldeconstruction and illustrate its dependence on the historic mission of the AfricanAmerican Church. Like a true organicintellectual engaged in a philosophical praxis, King used theoretical deconstruction to illustrate the possibilities *1015 ofhis reconstructive vision and the centrality of social struggle in realizing that vision. Third, I discuss King's experientialdeconstruction, his unwillingness to be distracted by the reified abstractions of theoretical deconstruction. Finally, I show howthe combination of theoretical and experiential deconstruction results in a more contextual frameworkone more appreciativeof the conditions of choice within which authority is legitimated and challenged through reconstructive vision and struggle.

    B. The Role of the AfricanAmerican Church in the American Slave Experience

    AfricanAmerican religion was vital to the community-building enterprise necessitated by the social disintegration and chaosof the American slavery experience. Confronted by practices of social control that suppressed their West African heritage,language, and traditions, Africans were expected to conform to a community created by their slavemasters. Slavemastersattempted to refashion the African's identity through the eradication of collective memory. 86 In the void created by the sociallyimposed atomization of the African community, the AfricanAmerican Church served both to legitimate and delegitimate themoral authority of a slaveowning society.

    1. The Role of Religion in the Legitimation of Authority.Slavemasters believed Christianity had a stabilizing and disciplininginfluence on the slave's disposition 87 and thought it would foster consent by Africans to the legal and extra-legal devices ofslavery. The conservative evangelicalism 88 of slave society was premised on five basic *1016 assumptions. The first was thefallen nature of human beings 89 the pervasiveness of human depravity and sin. The second was contrition 90 a period ofmourning characterized by feelings of personal guilt and sorrow for sins. The third was conversion 91 an intensely personalexperience with God in which the burdens of sin were lifted and the soul cleansed and made fit for the Kingdom of God. Thefourth was the separation of believers 92 the sometimes physical but most times psychological separation of the community ofbelievers from sinful worldly concerns and pursuits. The last was the separation of church and state 93 the extreme deferenceto the existing social order and dependence on the state for the laws and rules necessary to constrain the sinful nature of earthlybeings.

    These features of conservative evangelicalism were considered rooted in an infallible scripture representing the untainted wordof God; they legitimated slavemasters' authority in several ways. Southern evangelicals elaborated the scriptural justificationsfor slavery and invoked the will of God to reconcile slaves to their subordinate status. 94 Slavery could not be sin, they reasoned,since God sanctioned it in his infallible Word. Evangelicals frequently cited the Old Testament story of Noah's son, Ham, whoseprogeny God supposedly *1017 condemned to a legacy of servitude for Ham's indiscretion. 95 These and other scripturalevidences were, to the evangelicals, conclusive proof of God's authorization of African slavery. 96

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 15

    Having provided the moral justification for slavery through scripture, evangelicals constructed an argument designed to avertany effort by the Church to transform the institution. Because the scripture supported slavery, and secular authority establishedand protected it under state law, the Church, mindful of its commitment to the separation of church and state, could not condemnslavery. 97 Because slavery did not constitute sin, God's law did not contradict the civil law. Slavery fell under the latter andthe scriptures dictated obedience to secular authority. 98

    Moreover, conservative evangelicalism dictated that because God would deal with the evil of Southern slavery and apartheidin His own way and time, the eradication of those institutions should await His divine deliverance as evidenced by the changedhearts and minds of women and men. Thus, patience and the implicit acceptance of one's subordinate status were exalted asthe highest of Christian virtues.

    Conservative evangelicalism had made its position on the morality of slavery quite clear. Unresolved, however, was whetherthe separation of church and state permitted the Church to play any role at all in the relationship between masters and slaves.Although scripture exhorted masters to provide their slaves with instruction sufficient for salvation, 99 evangelicals emphasizedthat salvation was the sole purpose of giving slaves the gospel. The evangelical message was that if slaves were faithful to thegospelhumble and obedient, faithfully serving in the station to which providence had assigned themthey too could enterthe Kingdom of God. As one evangelical contended: *1018 'Our design in giving them [the slaves] the Gospel, is not tocivilize themnot to change their social conditionnot to exalt them into citizens or freemenit is to save them. 100

    2. The Role of Religion in the Delegitimation of Authority.Although the use of religion as an instrument of social control often

    necessitated oversight by white masters, 101 strict enforcement was not maintained, and slaves often met separately for religiousservices, including weekly and Sunday evening services. 102 It was within the freedom provided for religious worship thatAfricans began to assert some control over how the void created by the disintegration of their historical identity and communitywould be filled. In this small space of freedom, an alternative conception of community was defined and the history of a newAmerican people began to emerge. AfricanAmerican religion and its primary vehicle of expression, the AfricanAmericanChurch, supplied the needed catalyst for the reconstruction of community destroyed by slavery. 103

    To the surprise and fear of many whites, slaves transformed an ideology intended to reconcile them to a subordinate status intoa manifesto of their God-given equality. 104 This deconstruction was both revolutionary and pragmatic in nature. The Africans'appropriation of conservative evangelicalism as a bulwark against the degradation and countless microaggressions of slaveryproved that there were alternate interpretations of the text that supposedly justified their subjugation. Slaves demonstrated thatscripture was subject to an alternative interpretation that called for the eradication of the very social structure evangelicalssought to legitimate. 105 In short, slaves deconstructed ideology through their struggles against oppression.

    Although slavemasters and evangelicals attempted to limit the transmission of counter-hegemonic interpretations of scripture,their *1019 efforts met with limited success. African gospel preachers and slaves who learned to read against their masters'wishes (and, many times, against state law as well) were determined to read the Bible in light of their own experiences. Manyslaves realized that the message of submission, docility, and absolute obedience to the master was a distorted picture of theBible's eternal truths. 106

    Many slaves found in Christianity, and particularly in the historical Jesus, a call to revolutionary action. They read of a Jesuswho proclaimed that God had anointed him to preach the gospel to the poor; . . . to preach deliverance to the captives, and . . .to set at liberty them that are bruised'; 107 who commanded those who would follow him to care for the least of these':the hungry, naked, sick, and those in prison; 108 who entered Jerusalem to the revolutionary cry of Hosannah; 109 and who

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 16

    defiantly asserted [t]hink not that I am come to send peace on earth: I came not to send peace, but a sword.' 110 DenmarkVessey and Nat Turner, for example, recognized the revolutionary potential of Christianity: since God is on our side, we strikefor freedom, confident in his protection.' 111 The Reverend Henry Highland Garnet contended: 'To such degradation [asslavery] it is sinful in the extreme for you to make voluntary submission. . . . Brethren arise, arise! Strike for your lives andliberties. Now is the day and the hour . . . . Rather die freemen than live to be slaves.' 112

    Those unwilling to act on the revolutionary impulses of the Bible found scriptural support for a more patient and pragmaticopposition to slavery that still fostered and preserved a healthy sense of self-worth. Conservative evangelicalism taught thatslavery was a divinely ordained practice instituted by the master race for the benefit of morally deficient Africans. But slavesread of Moses, the Hebrew children, and God's mighty deliverance from the hardships of Egyptian slavery. The story providedproof of God's intolerance of American slavery and his intention someday to divide the Red Sea of Southern oppression andlead His people out of Pharaoh's land.

    Against the formidable oppression of slavery, segregation, and contemporary forms of subjugation, this deconstructed,pragmatic evangelicalism provided the means by which AfricanAmericans could *1020 survive their daily travails. Itsemphasis on personal faith nurtured a forward looking people who could sing with conviction the words I'm so glad, that troublewon't last always.' 113 Its emphasis on love bolstered a sense of self-esteem diminished by the debilitating and degradingpractices of a culture that relegated them to the status of objects. It nurtured an inward-looking people who could sing withreassurance the words The trumpet sounds within my soul. I know I ain't got long to stay here.' 114

    Conservative religious ideology portrayed slaves as inherently inferior and unequal creatures in need of white paternalism. Butslaves heard of a God who gave His only son to die for all human sins equally. They heard that God did not discriminate amongpersonsthat in Him there was neither Jew nor Gentile, black nor white, slave nor freethat all were brothers and sisters inChrist Jesus. 115 Slavemasters and evangelical preachers admonished slaves to render absolute obedience to their masters andto serve cheerfully in the position to which they were destined. But slaves read of and believed in a master superior to theirearthly mastersa master to whom their own masters were held in submission, and whose commandments their masters wereobligated to obey. The belief in Jesus as ultimate master undermined the suggestion that complete submission was owed toone's earthly master. 116

    The disparity between what slaves read and heard from their own preachers and the practices of whites in the slave systemhad two important consequences. First, it preserved and enhanced the self-esteem of the slaves; the realization that somewhites were not faithful to the Word provided them with a sense of moral superiority. Even in slavery, slaves could be thelight unto the sinner's path. Second, it provided a standard against which they could measure whites individually, rather thancollectively by their social status as master race. 117 It provided a framework for understanding the differences between cruelwhite overseers and whites who worked on the underground railroad to freedom. Even when the institutions of oppressionseemed most intractable, understanding their oppression as the sin of unfaithful whites maintained for the Africans a sense ofsanity and hope tempered only by the revolutionary focus on power and immediate liberation. In short, the appropriation ofChristian ideology by the AfricanAmericans provided the basis for their survival of slavery's many brutalities and indignities.

    *1021 Although this appropriation helped to restore the dignity of the African slave, it also had paradoxical effects. Pragmaticevangelicalism admirably served the cause of survival but its eschatological and inward orientation simultaneously served thefunction of social control. It saved black Christians from a debilitating hatred which, if permitted to fester, would have createda pervasive sense of despair and hopelessness that would have substantially impaired the moral will to survive. However, italso promoted as virtues patience and tolerance of the social institutions of oppression. Viewing morality in terms of individual

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 17

    character thus undermined the possibilities of a sustained Christian radicalism against what was perhaps the most debilitatingand sustained system of subordination known to the modern worldAmerican slavery. 118

    3. The Role of Religion in the Shaping of Alternative Conceptions of Community.The revolutionary and pragmaticfaith drawn from conservative evangelicalism represented the beginnings of what Cornel West has called propheticChristianity. 119 It drew heavily on the interplay between the individualist orientation of pragmatic Christianity and thecollectivist orientation of revolutionary Christianity. It encouraged an intensely personal relationship with God while nurturingthe possibilities of collective defiance and transformation.

    The AfricanAmerican Church rejected white Christianity's claim that the law and order of an oppressive secular authority werenecessary to constrain the evil proclivities of human nature. Many slaves never accepted the view that slavery was justifiedbecause the human nature of Africans necessitated African enslavement and white superiority. For these slaves, the spiritualfreedom and sense of equality that accompanied the conversion of the soul threw into question the morality of the social orderin which they lived. One student of this period writes:Contradicting a system that valued him like a beast for his labor, conversion experientially confirmed the slave's value as ahuman person, indeed attested to his ultimate worth as one of the chosen of God.

    ...

    . . . [M]eetings encouraged participants to include references to individual misfortunes and problems in their prayers andsongs, so that they might be shared by all. This type of consolation . . . [was] the answer to the crucial need of individualsfor community. 120

    *1022 The religious experience of conversion was central to the belief system of slaves. The process of conversion in AfricanAmerican religion involved a period of sustained mourning in which the contrite sinner would assemble with worshipersin prayer for as many successive meetings as required to bring the sinner through'a phrase used to express the sinner'scompletion of a right of passage from the alienated existence of sinner to the bonds of Christian fellowship and community. Theprocess of conversion often resulted in a cataclysmic seizure of the person by the Holy Spirit that catapulted all into a raptureof ecstatic joy and praise. 121 The experience was collectively cathartic. 122 In the slave community, uninhibited shoutingand praise temporarily obliterated secular distinctions in status between the slaves. It was a process in which personalitiesdisintegrated by the social chaos of oppression found meaning and commonality by fusing with others in a collective act ofself-affirmation and even defiance. 123

    The prophetic Christianity that resulted from this synthesis between revolutionary and pragmatic Christianity offered thealternative conception of community that would inspire King to develop his notion of a Beloved Community' and to struggle totransform American society. King's objective to rebuild community from the social death of slavery and segregation paralleledthe conversion experience in slavery. A sense of individual self-worth was essential to any social struggle; segregation laws andimpoverished conditions that diminished self-worth had to be challenged and abolished. Although the ideal was to break downthe barriers of hatred and misunderstanding that prevented individuals from seeing and respecting the God-given humanity ofall, King knew that only collective action and organized defiance could achieve the destruction of such barriers. Redistributionof wealth and power through the collectively cathartic experience of social conversion was a necessary part of this conceptionof community. Law and the power of the state would have to assist in the obliteration and amelioration of many of the seculardistinctions *1023 founded on race, class, and gender that were created and reinforced by public and private forces.

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 18

    C. King and Theoretical Deconstruction

    King, through both his writings and his works, masterfully engaged in the theoretical deconstruction of the central premisesof conservative evangelicalism. As discussed above, conservative evangelicalism maintained that because human nature wasfundamentally evil, God had ordained and placed government over people as a constraint on their evil proclivities. 124 Suchconstraint was essential to maintaining law and order in the face of Hobbesian chaosan anarchy certain to ensue if each coulddecide the extent to which laws should be obeyed or disobeyed. Individuals were to be patient until God had so worked in thehearts of people that oppressive institutions like slavery and segregation would pass without the evil of breach of order andthe resulting chaos.

    King theoretically deconstructed this theology, which privileged order over freedom in three ways. First, he showed theincoherency of conservative evangelicalism's privileging of order over freedom, and illustrated that these supposed oppositeswere mutually dependent and thus incapable of being objectively ranked. Second, King rejected the premise that human natureis fundamentally evil, and challenged the universality of conservative evangelicalism's conception of human nature. Third,he showed that even assuming the theological premise that human nature was fundamentally evil, a different conception ofcommunity could be derived; thus he exposed the theology's indeterminacy. Based on this deconstruction, King synthesized thecompeting views into a Christian existentialism supporting, although not determining, his alternative conception of community.

    1. Deconstructing First PrinciplesThe Incoherency Critique.During the Birmingham demonstrations of 1963, the whiteclergy criticized King for the breach of law and order precipitated by his untimely,' nonviolent direct action protests todesegregate the city. In his famous Letter from Birmingham City Jail,' 125 King responded that he had*1024 almost reached the regrettable conclusion that the Negro's great stumbling block in the stride toward freedom is not the

    White Citizen's Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to 'order' than to justice; . . .who paternalistically feels that he can set the timetable for another man's freedom . . . . I had hoped that the white moderatewould understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they becomedangerously structured dams that block the flow of social progress. 126

    King examined and exposed the mutual dependence of order and freedom. He understood that the primary difference betweenthe two was that a belief in the primacy of order assumed that human nature was fundamentally evil and in need of restraint,while a belief in the primacy of freedom assumed that it was fundamentally good and capable of autonomy. The privileging oforder over freedom assumed that the latter was only possible within the constraints imposed by sovereign authority. Otherwise,civil society would degenerate into a Hobbesian war of all against all. Like Hobbes and, at times, Locke as well, the whiteclergy of Birmingham privileged the conception of human nature as fundamentally evil over the conception of human natureas fundamentally good. Thus, the ordinances and injunctions prohibiting demonstrations in the city were necessary restraintson freedom needed to maintain order in the face of the human capacity for evil.

    King's incoherency critique exposed the white clergy's preference of order over freedom and evil over good and demonstratedthat this preference lacked an objective foundation. The hierarchy could easily be inverted. If freedom presupposes order, as thewhite clergy contended, it is no less true that order presupposes freedom. For if humans are not also capable of substantial good,no social order is possible, because individuals would by definition be ungovernable. In this way, the social order supposedlynecessitated by human evil presupposes the freedom and human goodness it denies.

    *1025 2. Deconstructing First PrinciplesThe Universality Critique.Even if the privileging of order over freedom and theconception of human nature as fundamentally evil over its opposite conception were not seen as incoherent, King realized that

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 19

    these privileged conceptions need not be accepted as universally valid. They might be viewed as historically contingent andconditioned, and thus subject to change if individuals are willing to engage in transformative struggles to alter the conditionsunder which they appear coherent.

    The evangelicalism of Dr. George Washington Davis, King's professor of theology at Crozer Seminary, and the social gospelof Walter Rauschenbusch 127 gave King the theological perspectives to challenge conservative evangelicalism's conception ofhuman nature and its debilitating dichotomy between the spiritual and the secular and between order and freedom. Evangelicalliberalism 128 turned conservative evangelicalism's conception of human nature on its head and called into question theuniversality of that theology's assumptions. Evangelical liberalism posited the goodness of human nature, as reflected in andresulting from human moral reasoning, and conjectured that evil institutions had limited people's efforts to pursue the ideal ofthe Kingdom of Value, what King would later call the Beloved Community. 129

    From its theory of human nature, evangelical liberalism deduced a new role for the Church and the Christian. Given intrinsichuman goodness, social institutions could and should be transformed to reflect more accurately the ideals of universal kinshipand cooperation. 130 An infallible scripture reflecting the static will of God could not justify *1026 social institutions likeslavery and segregation. In addition, oppressive institutions could no longer seek justification by invoking the need to restrainthe evil nature of persons; such institutions were themselves the source of evil and thus in need of reform.

    A second important source of King's universality critique was the social gospel of Walter Rauschenbusch. Consistent withevangelical liberalism, Rauschenbusch also saw humans as intrinsically good. Evil, he argued, was the product of an evil society;in America's case, the greed and selfish individualism of a spawning industrialism trampled the Christian values of kinship andlove, 131 created gross inequities of wealth, 132 and relegated thousands to abject poverty. 133 Rauschenbusch called for theabandonment of capitalism and the creation of a new social order that would socialize economic resources and allow people toinhabit a sinless Christian commonwealth based on love, cooperation, and solidarity. 134

    By closing the chasm between the individual and the society, religion and ethics, and spirituality and everyday existence,Rauschenbusch avoided the limitations of conservative evangelicalism. Social justice constituted the telos of the Christian faithin his view, and he evaluated Christian discipleship in terms of its commitment to this moral end. Thus, unlike the dichotomyof conservative evangelicalism, there was a necessary relationship between the sacred and the secular, the Church and socialissues. Evidence of a person's love for God, he contended, must be the fruits of love for suffering humanity. 135 Such lovenecessitated the conversion of all social institutions and practices that maintained and reproduced poverty, racial oppression,and other social ills. 136 The social gospel turned Christian attention from the glories of the kingdom to come to the injusticesof the kingdom at hand. 137 It premised individual salvation on the transformation of the world's evil social institutions.

    Evangelical liberalism and the social gospel repudiated the traditional conception of human nature; they replaced that traditionalconception with an antithetical view, and reached a different conclusion about the relationship between Church and state andbetween Christians and the evil world in which they lived. 138 King used these two *1027 strands of theology to challengethe view of human nature that counseled AfricanAmericans to be patient in the face of oppression.

    3. Deconstructing First PrinciplesThe Indeterminacy Critique.In addition to challenging conservative evangelicalism bypositing an alternative conception of human nature, King argued that even if conservative evangelicalism's conception of humannature were valid, that conception would not necessitate any one vision of community. For example, when white ministersclaimed that the civil-rights protests resulted in a loss of law and order in Birmingham, and that King was primarily responsiblefor the tension and deteriorated relations that now pervaded the community, King responded with an indeterminacy critique.

  • Brooks, Hannah 1/10/2014For Educational Use Only

    BEYOND CRITICAL LEGAL STUDIES: THE..., 103 Harv. L. Rev. 985

    2014 Thomson Reuters. No claim to original U.S. Government Works. 20

    Conservative evangelicalism assumed that scripture required the Church's deference to the authority of the state ordained byGod; but King pointed out that order must serve the end of justice. Even assuming that we each must defer to the state, Kingmaintained, we must respect the law of God:

    A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a codethat is out of harmony with the moral law . . . not rooted in eternal and natural law. Any law that upliftshuman personality is just. Any law that degrades human personality is unjust. All segregation statutes areunjust because segregation distorts the soul and damages the personality. It gives the segregator a falsesense of superiority, and the segregated a false sense of inferiority. . . . So segregation is not only politically,economically and sociologically unsound, but it is morally wrong and sinful. 139

    King held that disobeying human law, even unjust law, must be done out of love and with a willingness to suffer the penaltyfor its breach. Through this unjust suffering, the transgressor evidences the highest respect for law and order while remainingtrue to his higher Christian duty.

    King realized that even when first principles were accepted, they did not mechanically determine specific visions of community.How we lived in community remained a matter of choice that implicated a host of competing values. What could be deducedfrom the presupposition that human nature was fundamentally evil and deference to *1028 the laws of social order essential?Segregationists deduced that King should cease all protests because they were illegal activities and should accept AfricanAmerican subjugation as the best of all possible worlds. Moderates deduced that King should cease all protests and pursue morepeaceful and orderly avenues for desegregating the citya goal surely to be achieved in due time. For King, it meant respectingthe law and the need for social order through a willingness to suffer the penalty for breaching unjust laws. Each deduction islogical, although none are compelled. What one finds persuasive largely depends on other values related to human potentialand social relations, power, and community.

    4. Synthesizing