retfærd årgang 37 2014 nr 1 - web viewthe alternative jurisprudence, first of all the...

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Comparative Critical Legal Studies: U.S. and the Nordic CountriesA Review ArticleKjell Å. ModéerREVIEWED BY KJELL Å. MODÉER

Juhana Mikael Salojärvi, A Menace to Society: Radicalism and Legal Scholarship in the United States, Scandinavia and Finland, 1965-1980, [Academic dissertation], Faculty of Law: University of Helsinki, Helsinki 2013, pp. 433.

In November 2013 the Helsinki legal historian Juhana Salojärvi defended his dissertation in modern legal history; a monograph in intellectual legal history on the post-war alternative and critical schools of jurisprudence in the U.S. and the Nordic countries. This dissertation is most welcome and familiar to my own (and my generation’s) experiences. I refer to my own visit as a visiting scholar to an American law school, Uni- versity of Virginia Law School in Charlottesville, in the mid 1980s. It was in the after- math of the metaphorical earthquake of the Critical Legal Studies movement, CLS. The law school at Mr. Jefferson’s historical university in the heart of colonial Virginia was definitively not a CLS environment, and it had never been. Instead it was a place for hard-core law and economics people with Saul Levmore (today University of Chicago) as the front figure and with close connections to the business school at campus. Law and economics became contrary to the CLS a right-wing legal movement. It had its intellectual center at Chicago. From the beginning, however, it was more ideologically diverse. Guido Calabresi, a center-left appellate judge and former legal scholar at Yale was one of the pioneers of law and economics – next to Richard Posner. With the increase of the market economy theory during the Reagan administration it was regarded as mainstream jurisprudence at Virginia. But in the fall of 1984 I met at the University of Virginia School of Law one of the prophets of the CLS movement, Gary Peller from Harvard Law School, who spent some years in the 1980s in Virginia as a professor of jurisprudence. I remember him as rather alienated to the faculty, only a few could (or would) follow his philosophical and theoretical Marxist based argumentation.As a Fulbright fellow, however, I got a possibility the same year to go to the Uni- versity of Wisconsin/Madison – traditionally one of the radical hubs in the American academic environment. At the law school in Madison the CLS-pioneer David Trubek

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became my warm and cordial mentor. I also had a long conversation with the legend- ary legal historian Willard Hurst, the pioneer within the American alternative jurisprudence, the socio-legal history. That fall I also flew out to California, to Stanford and Berkeley, and met with as well Law & Society-scholars (e.g. Lawrence M Fried- man and Harry N Scheiber) as the CLS-historian Robert Gordon, who earlier that year had arranged the important CLS-Symposium at Stanford – arranged by Michael Klarman, today professor at Harvard Law School and then a student editor of the Stanford Law Review, which resulted in the monumental and classical Stanford Law Review Issue, January 1984, since long sold out (also in its 2nd edition) and still today regarded as one of the important manifestos of the CLS-movement.1 My own experiences were of great value and made it a treat when I read Juhana Salojärvi’s dissertation. He has written the legal history of a couple of the most visible, applied and radical legal movements within late 20th century legal science, the so called alternative and radical jurisprudence, which started out from the development in the U.S.A., in the 1960s and -70s. Depending on interpretation the legal culture of this period those two jurisprudence movements can be regarded as an event, a phenomenon or as an enduring modern tradition and even as a paradigm shift within Western legal science.No doubt, Salojärvi has identified an interesting and even fascinating topic, and he has identified and evaluated this important part of the intellectual modern legal history related to legal scholarship as well as to the legal profession. Legal historians have longed for this dissertation since decades, due to the fact that today, the 1960-70s and its cognitive structures belong to an important part of 20th century legal history – a context breaking moment between the social and the human rights paradigm, to use Duncan Kennedy’s vocabulary.2 The dominating legal paradigm of the post WW II- period in the U.S. was still that of legal realism, and especially in the U.S. legal realism and its actors for decades have been studied in substantial research and in legal and judicial biographies. The alternative jurisprudence, first of all the law and society-movement, has also been studied and elaborated in important monographs and anthologies.3 The radical movement and especially the CLS, however, have left a huge heritage behind but not so very much in form of evaluating research and literature. Regarding the Nordic countries there is a recent anthology on the importance of the critical legal theories within Nordic legal science,4 but for the U.S. there are just some

1 Critical Legal Studies Symposium, 36 Stanford Law Review (January 1984).2 Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in: David Trubek and Alvaro Santos, (eds.), The New Law and Economic Development. A Critical Ap-praisal, Cambridge: 2006.3 John Henry Schlegel, American Legal Realism and Empirical Social Science, University of NorthCarolina Press: Chapel Hill and London 1995.4 Kjell Å Modéer and Martin Sunnqvist, 1968 och därefter: De kritiska rättsteoriernas betydelse förnordisk rättsvetenskap. Museum Tusculanums Forlag: Copenhagen University 2010.

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more or less biographical or autobiographical articles, but no monographs or dissertations, as far as I have found.5 This statement of mine has also been confirmed by some of the today senior CLS actors I recently have met. So it’s great that a legal scholar student has found this for an earlier generation important topic regarding a very vulnerable and politically infected time-period worth a dissertation.Salojärvi has effectively vacuum-cleaned the libraries and law journals of material on radical jurisprudence, and already in that respect he has done an admirable job. On the other hand, legal radicalism can’t be understood and described without its complex contexts, because there is not only one context or perspective of this legal radicalism. There are cultural, political, economical and social factors – all of them contributing to the discourses and effects of the radical jurisprudence. The author has also been aware of these perspectives and given the political, social and economic contexts a deliberate place. I will comment on some keywords regarding this contextualization of his thesis.

The Title: »A Menace to Society«But let me start to put up some problems with the title: »A Menace to Society.« The front page with the title in socialist red letters and a cover picture is demonstrating the threat: The typhoon, the hurricane blowing up from the west. It’s a great metaphor for the upcoming disaster. The title of the dissertation is obviously related to the 1993 movie »Menace II Society«, a movie observed »for its gritty portrayal of urban violence and its powerful underlying messages«. Already this statement creates ques- tions and problems. Was the left-wing movement in the 1960-70s really a menace, a threat to society? Or was the society just a context to the politicized academic battles? And to what extent was the society involved in this academic rhetoric at some law schools in the US and law faculties in the Nordic countries? Or was the whole radical movement more or less an internal provocative juvenile menace within the academia to the traditional and conservative legal establishment? All this can and could have been discussed – and also resulted in an important and discursive question mark in the title: »A Menace to Society?«

5 Neil Duxbury, Patterns of American Jurisprudence, Oxford University Press: New York 1997. – Robert W. Gordon, American Law Through English Eyes: A Century of Nightmares and Noble Dreams (1996). Faculty Scholarship Series. Paper 1350 http://digitalcommons.law.yale.edu/- fss_papers/1350

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A Comparative StudyAnother question related to the title of dissertation would be: Isn’t this a comparative study, describing and comparing three legal environments, U.S., Scandinavia and Finland, and shouldn’t »comparative« be included in the title?Salojärvi compares the radical legal movements in

the U.S. with parallel phenomena within Scandinavian and Finnish jurisprudence. In that respect this dissertation is innovative. It’s demonstrating the radical shift within the Nordic legal transfers of the post-war period. For more than one century, or at least from the 1870s German legal culture and jurisprudence had a dominating influence on the Nordic academic and professional environments. After the WW II there was dramatic change. The legal winds turned from South to West. So also in this respect the metaphor the author has chosen in the cover picture to his dissertation is a very relevant one. The stormy winds are rolling like low pressures in to the Scandinavian Peninsula from the Atlantic Ocean. This post-war turn to the west, in Norwegian university life called the West- ern Turn, Vestvendingen, resulted in quite new academic networks in Great Britain and the U.S. for the upcoming generation of legal scholars.6 In Finland it was just called the Americanization of scholarship.7

It makes this study as a comparative study so interesting and remarkable. The young post-war Nordic generation of legal scholars went to the U.S. and followed the trends within American academy. Many of them made their pilgrimages to the élite law schools from Columbia, Harvard, Yale in the East, to Chicago in the mid-west or to California/Berkeley at the edge of the world, close to the Pacific Ocean, and they returned from these academic environments inspired by the new cross-border or interdisciplinary way of thinking. The interesting question is of course to what extent this phenomenon also resulted in interaction between the American and the Nordic legal scholars and became an entangled comparison.Juhana Salojärvi uses a comparative method, but I lack his position in relation to the discourses affiliated to comparative law and also an argumentation regarding the choice of countries he is comparing. I miss a more entangled comparison. Comparing the United States (a common law country) primarily with Finland (a civil law country) is of course possible, but the legal cultures and contexts are so different in the Nordic countries that each of them needs to be explained and elaborated more seriously. Comparing within intellectual legal history is an entangled comparison. In such a comparison one have to compare relevant entities. Is it relevant to compare Finland

6 Kjell Å Modéer, When the Wind Turned from South to West: The Transition of Scandinavian Legal Cultures 1945-2000. A Comparative Sketch. In: Olivier Morteau, Kjell Å Modéer (eds.), Comparative Legal History. In print (2014).7 Salojärvi (2013), 253.


with Scandinavia (three countries), or to compare Finland with the USA, or Scandinavia with USA?

The period of time investigated: 1965-1980This dissertation is a study in modern legal history. German legal historians have a special term for this field: juristische Zeitgeschichte. Salojärvi has concentrated his study to a limited period of time, 1965-1980. Definition of time periods can always be discussed, and defended. No doubt – the here investigated time-period is representative for the peak of the movements described. Another question is of course to what extent the evaluation of this limited period of time can give the full answer. In the U.S. the deep structure of the radicalism started already in the mid-war period with the legal realism. Legal realism was definitively a winner of its time within the law school academia. It became mainstream jurisprudence from at least the 1930s (of course supported by the left-wing jurists of the New Deal, The New Deal Lawyers) and up to the post-war period.An interesting problem is to what extent the radical movements were a reaction to legal realism and to traditional jurisprudence or if we can uphold the position that it was a revolutionary event, that created a paradigm of it’s own: an evolution or revolu- tion within intellectual legal history? Louis Schwartz at Hastings has defined the »Realist« school of jurisprudence that flourished in the 1930’s as an important earlier model for CLS. »It arose as a reaction to the prevailing view of the law as static and of judges as bound by historical precedent. Going back even further in our search for roots, one might reflect on the parallels between CLS and the rise of romanticism in literature, religion, and philosophy in the early nineteenth century revolt against the rationalism of the eighteenth century.«8 So there are interesting parallels and deep structures related to the post-war jurisprudential struggles.As late as in the 1960s legal realism still held its position as mainstream jurisprudence. Legal realism formed the background to the alternative jurisprudence, especially the Law and society-movement in the 1950-60s. An interesting question is to what extent the radical CLS-movement became mainstream – or if it had to accept that it just was a counter-culture to the ruling paradigm. In the 1990s I heard colleagues say, »today we are all Crits«, e.g. influenced by the CLS. And when the critical studies within jurisprudence successively became a sort of mainstream jurisprudence, several of the left-orientated old Crits instead took over the globalization discourses, with Dun- can and David Kennedy as two important representatives. As Laura Kalman formu-

8 Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review (1984), 415.



lates it: »Critical legal studies moved towards postmodernism, and some critical legal scholars

travelled beyond structuralism to post-structuralism and deconstruction«.9

In that perspective the investigated period of time (1965-1980) is problematic. There are arguments for setting the starting point earlier than 1965 and the ending-point later than 1980, especially as the alternative legal movement as well as the radical one have continuities not only to the dominant paradigm of legal realism of the 20th century but also to the current critical schools within legal science. In retrospect the civil rights movement in the post-WW II period and especially the Civil Rights Act 1964 have been of great importance also for the discourses related to the radicalization of law. For Salojärvi’s dissertation the relationship between academic and judicial jurisprudence as well as their legislative efforts are both interesting and important. This perspective could have been made more visible in Salojärvi’s narrative.The ending point of the CLS-period in American legal culture has in the literature so far been defined by Clare Dalton’s and David Trubek’s declined tenure ship at Harvard Law School in1987. At that point the left wing radicalization lost the battle to the right wing with its constitutional fundamentalism (original intent)10 related not only to the historical celebration of the bicentennial of the U.S. Constitution, but also to market economy and to commercial globalization.

Radical Legal Thought as Legal HistoryAs this is a dissertation in comparative legal history its especially interesting to observe to what extent these alternative and radical legal movements also inflicted the field of legal history. The short narrative in this respect is telling us, that there are three legal scholars who have been icons in modern American legal historical scholarship: Willard Hurst at Madison and his then young colleague Lawrence M Friedman at Stanford, both of them within the law & society movement and Morton Horwitz at Harvard Law School within the CLS. But if we dig a bit deeper, the whole critically oriented legal theory in Europe as well as in the U.S., which was identified during the first decade of the new millennium, has increasingly given legal history a much more theory based position.As a legal history dissertation in intellectual legal history this dissertation in that respect is more descriptive in its approach than theoretically analyzing. This is not necessarily said pejoratively. Salojärvi has produced an in many respect good descrip-

9 Laura Kalman, The Strange Career of Legal Liberalism, Yale University Press: New Haven and London 1996, 125.10 Justice Antonin Scalia uses the term original meaning. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, Thomson/West: St.Paul 2012, 22.


tion, but perhaps a more problematized approach to the role of a radicalized legal history within the contemporary discourses as a radical theme could be expected.This lack of a more elaborated contextualization leaves the reasons of the attitudes and reactions to legal radicalism to some extent open.His method to let the printed material steer the narrative has also resulted in a picture with disturbing omissions. Among important Swedish actors within alternative jurisprudence not mentioned, are Folke Schmidt, professor of labor law (at Stockholm),11 and Per Stiernquist, the first professor of legal sociology in Sweden (at Lund university).12 Schmidt pioneered in going to the U.S. Law Schools after the WW II and Stiernquist was in his research to a great extent influenced by the American legal historian Willard Hurst and his works, and he wrote a Swedish parallel to Hurst’s book on the history of the lumber industry in Wisconsin.13

Stiernquist also visited Hurst in Madison. On the other hand there are legal scholars presented in the dissertation who played a rather peripheral role in the contemporary discourses, also this a result of the lack of elaborated contexts.Every author of a dissertation has to make restrictions and put limits to his/her sources and

material. Salojärvi has made a thoroughly and admirable work by taking into consideration

practically all written literature (mostly law journal articles) regarding alternative and radical

jurisprudence in the countries he has investigated. On the other hand he has rejected other

forms of available sources, especially those within oral history, which could have supported

more contextual interpretations of his material.14

Salojärvi’s work has primarily resulted in a descriptive dissertation. This is, as mentioned, not a pejorative remark. Good description has always been accepted in a doctoral dissertation. The sources and material used, however, have to be put into their contexts. Salojärvi is well aware of the contexts and he is also presenting them to the reader, but he avoids getting in dialogue with his sources. As a dissertation in legal history one could have expected a more problematized approach to the development of an alternative and radicalized legal history within the contemporary discourses, especially as current legal history has taken a much more theory-based but also estab- lished position within legal science than 40-50 years ago.

11 Tore Sigeman, [Art.] Folke F Schmidt, Svenskt Biografiskt Lexikon, Band 31 (2000-2002), 582 f.12 Antoinette Hetzler, [Art.] Per Stiernquist, Svenskt Biografiskt Lexikon, Band 33 (2007- 2011), 511.13 Per Stiernquist, Laws in the forests. A study of public direction of Swedish private forestry. Lund: Gleerup, 1973. (Acta Reg. Societatis humaniorum litterarum Lundensis, 69).14 E.g. the conversations in law and society from the Center for the Study of Law & Society, Boalt Hall, U/California Berkeley within the project of building a video archive of interviews with the founders and leading figures of the field of Law and Society conducted by Lauren Edelman, Calvin Morrill, David Lieberman, Bob Kagan, and Jonathan Simon. https://www.law.berkeley.edu/9603.htm



It would also have been an asset if Salojärvi had related his contextual analysis to e.g. those by the American legal historian Laura Kalman, who in her research has defined the radical movement (CLS) with help of its enemies: Law and economics, legal realism, Warren Court liberalism and red-wing (republican) historicism. By constructing similar models for his narrative regarding the Nordic countries – e.g. by focusing on the conservative and traditionally orientated legal profession – Salovärvi’s dissertation had been much more dynamic and interesting from a scientific perspective.In Laura Kalman’s works the legal actors play essential parts in the narrative. She always gives very lively and concrete portraits of the actors in the play. When she writes intellectual history, she at the same time writes legal biographies. Her style of writing fits very well into the narrative Salojärvi has taken as his. Let me take one example: There are hard-core radicals and there are more soft or grey zone figures within radical legal thought: David Trubek at Madison started out in the field of law and society but turned over to hard core CLS. His colleague at Madison, Stewart Macau- lay, however, was in the beginning of the 1970s been labeled as a CLS, but he has performed as a law and society figure throughout his career. This complex identity problem within the CLS movement was commonplace; without a consciousness on this the story telling narrows.There are also participants in his narrative who in fact were rather marginal for the Nordic arena, e.g. some authors in the first issues of the Nordic radical law journals, as Retfærd and Kritiska häften.There are two important arenas for the radicalization of the American legal culture: The law faculty (and legal education) and the legal profession (with its efforts to distribute legal aid to the poor, to extend the support of the weak and poor by cause lawyering and different forms of pro bono-works). Both arenas were very much involved in conflicts related to the CLS-movement. It was essentially the young professors at the élite law schools in the US, especially Yale, Harvard and Madison/Wisconsin but also Stanford and Berkeley, who became the catalysts at these centers for legal conflicts. The identification of the legal actors located to these two arenas representing theory and practice – and their interactions – give a good structure to the development of modern American legal culture and would also have given the narrative of the dissertation an added value.Salojärvi’s presentation of the Finnish legal development is very good. But I’m more skeptical to the comparative perspective related to the Nordic countries: Salojärvi compares Finland with the other Scandinavian countries as one entity. From a contextual perspective this way of identifying the Scandinavian countries in relation to Finland is not to recommend. He underlines the similarities between the Nordic countries; the differences, however, between the legal cultures in these countries are substantial – especially when you are looking into the legal cognitive structures and their intellectual contexts. Their different identities and historical development makes


it also very problematic to stick all the Scandinavian countries into one bag in relation to Finland.

Networks and clustersThere is a need for some sort of a structure regarding the networks and bricolage within the élite law school clusters in the 1960’s and 1970’s to be able to identify the representatives of the alternative and radical schools.The law and society started e.g. out from Madison/Wisconsin and Buffalo Law School/NY

and got important hubs not only at Berkeley and Stanford in California, but also e.g. in

Chicago at University of Chicago as well as at the American Bar Foundation’s research

center. These clusters are very important when we try to identify the interaction within the

discourses, because different research trends popped up at those clusters. The special identity of the Center for the Study of Law and Society at U/California Berkeley has been observed in that respect.15

Also regarding the CLS two important clusters can be identified: Yale and Harvard Law Schools. Professor Mark Tushnet has underlined the differences between the two:

»The first [group of CLS participants] consists of people who were present at the Yale Law School from 1967 to

1972, either as teachers or as students (Abel, Gertner, Heller, Kennedy, Rosenblatt, Trubek, Tushnet). The

second group consists of those who were students of Morton Horwitz and Duncan Kennedy at the Harvard Law

School from roughly 1974 to [1982) (Bellow, Klare, Kelman, Stone)16

Yale and Harvard are embedded in totally different intellectual contexts. Yale, has a traditionally interdisciplinary approach, Harvard much more represents Classical legal thought and legal realism. The legal mapping of the cognitive structures is important for the concept of the cognitive structure paradigms, and to continuity related to the radical thought.Another important parameter is that these alternative and radical legal movements in the U.S. were a part of the environment of élite law schools: Yale, Harvard, Wisconsin, Stanford, Berkeley. And it was clusters of friends, intellectual and personal friends, at those law schools who created the networks. When I met with John Schlegel at the ASLH Meeting in November 2013 he told marvelous inside stories how the CLS’ freaks made the success story (from their point of view) at Harvard: The domi-

15 CSLS 50th Anniversary Conference: The Future of Law and Society, November 3-4, 2011. http://www.law.berkeley.edu/11092.htm16 Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review 1984, 415.


nating CLS-people at Harvard had good contacts with the associate dean who was re- sponsible for the copy-machines. It gave the possibilities for Duncan and David Kennedy to spread the CLS message with help of lots of copies to friends and their friends etc.!

The Polarized Law FacultyAnother characteristic of the radicalization was the divided and even polarized law faculty. The politicized law school created a new division between the law schools. »American legal thought has always been political, but legal academia today may be more openly politicized and more polarized than ever before«, Gary Peller, one of the more distinct critical legal scholars stated in 1985.17 This was perhaps the most visible account of the radicalization: The politicized and polarized law faculty – even if not all law schools became polarized.From an insider’s perspective the radical movements provoked the law professors of different sorts, more or less. Some law schools were more tolerant than others. The comparative law professor John Merryman at Stanford remembers in his interview with Pierre Legrand that there was a very cultivated and tolerant attitude to the Crits at Stanford, perhaps due to the fact that there were authoritative law & society professors within the law school.18 The contrary could be found at Harvard, where David Trubek described Harvard as the »Beirut of legal education« and Morton Horwitz told his colleagues there was a »crises of legitimacy« at his law school. Another CLS- scholar, the legal historian Robert Gordon at Stanford, stated in New York Times 1987: »They say once you've got one or two C.L.S. people on the faculty, they infect the en- tire faculty«.19 And of course there was an open battlefield between the pragmatic traditionalists and the to some extent anarchistic and rebel-labeled CLS-scholars.Also in the Nordic countries there was a similar polarization at the law faculties between the conservative mainstream law professors and their radical colleagues. At several places it also was the effect a generation conflict.20 The alternative jurisprudence found its representatives at the Nordic law faculties, very much among those scholars

17 Kalman (1996), 122.18 Pierre Legrand, John Henry Merryman and Comparative Legal Studies. A Dialogue, 47 Amer-ican Journal of Comparative Law (1999), 3-66.19 Jennifer A Kingson, Harvard Tenure Battle Puts 'Critical Legal Studies' on Trial, New YorkTimes, August 30, 1987.20 Henrik Zahle, 1968 og derefter. Kritisk retsteori på Københavns Universitet, in: Modéer &Sunnqvist (2010), 61 ff.


who had spent a period at an U.S. law school.21 At most places the radicals got the position of a sort of counter culture or counter force to the traditional scholars.22 But the question still has to be answered: Became the radical critical movement really a mainstream movement, or just for some years in the 1970s an irritating fly for the traditionalists within legal science?The dominant and traditional legal culture of the time also had its counter-culture. In his conclusions Salojärvi describes Critical legal scholarship as »a cultural phenomenon«23 as well as »an academic manifestation of the counterculture of the 1960s, molded and transformed by the events of the 1970s«.24 A legal culture is a vague as well as a problematic concept; it needs to be explained to be correctly understood.

Comparison of the practical themes of the legal radicalization in the US and the Nordic countriesThere are some fields within the alternative and radical movements which all became important reform areas, especially for the CLS in the U.S. but also for the Scandinavi- an and Finnish radical scholars: For the young generation it was first of all the legal education; the students were destroyed by traditional values already from their first year in law school. The curriculum had to be revised totally. Louis Schwartz relates to Duncan Kennedy’s report 1980: The »utopian proposal or Law School as a Counter-hegemonic Enclave«: Kennedy, as the charismatic pope of the CLS, talked about abolishing »illegitimate hierarchies« and proposed Harvard Law School should initiate the action »by establishing a single salary for everyone from janitor to dean and rotating each member of the community through each job.« He proposed the tenure system should be abolished, that admission to the law school be by lot, and that classroom discussion be restructured to allow more time for poor and unprepared students to be heard.«25 These were really exceptional, provocative, radical and bizzare proposals – and often quoted from the enemies of CLS. When radical legal thought was articulat- ed that way the following question became close: Did these CLS guys introduce their provocative jurisprudence just for having fun? Of course not, but in retrospect such

21 At Oslo Law Faculty an explicit Institute of legal sociology and administrative law was created in 1959. Fredrik W. Thue & Kim G. Helsvig, 1945-1975: Den store transformationen [Uni- versitetet i Oslo 1811-2011], Vol. 5, Unipub: Oslo 2011, 182 f.22 Carl Martin Roos, Juridiska fakulteten [i Lund] på 1960-talet, in: Under Lundagårds Kronor, Sjätte samlingen, Akademiska Föreningens förlag: Lund 2005, 20 ff.23 Salojärvi (2013), 351.24 Salojärvi (2013), 354.25 Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36. Stanford Law Review(1984), 413.



somewhat frivolous thought-experiment that tried to make the point: »Asking why not?!« surprised many of the outsiders of the CLS.Perhaps we have an entangled history in that respect in the U.S. as well as in the Nordic countries? For the enemies of the critical schools the burlesque and grotesque proposals gave the impression that the critical school in all its utopian and visionary perspectives was radically unrealistic. Parallel statements could also be found in the law faculties in the Nordic countries – even if the critical scholars on both sides of the Atlantic ocean made many constructive proposals.The CLS argued that also the legal profession had to be better adjusted to the real world. Salojärvi identifies how the left-wing faculty organized themselves in radical institutions, from the National Lawyers Guild in the US, to parallel institutions in the Nordic countries. Especially notable were the efforts to distribute legal aid to the poor, to extend the support to the weak and poor by cause lawyering,26 and different forms of pro bono-works.27 All these initiatives flourished in the 1960s and 1970s, and aimed to give the legal profession, a quite new image. In the U.S. these efforts inflicted also the corporate bar’s attitude to corporate social responsibility.Another example is the field of law and development, which had been supported especially from the Ford Foundation in the U.S. – a support heavily criticized by the CLS- people.28 So, an important part of the CLS narrative is its criticism of the legal profession and the law in action, as the legal realists interpreted it.In his concluding chapter Salojärvi also elaborates on the cooperation between theory and praxis, between the legal scholars and the legal profession, and he finds this relation was closest in Finland. He has arguments for this position, and this is his narrative. But I would like to remind of one of the most important Nordic legal networks, that of the Nordic convention for jurists. This convention celebrated its centenary here in Helsinki in 1972, and the representative of the Swedish government, Carl Lidbom, deputy minister of justice in Olof Palme’s social-democratic government, addressed the audience by saying that Sweden congratulated the Convention to 100 years of cooperation, but from then on Sweden didn’t want to participate in the traditional way of harmonizing the laws between the Nordic countries. The Nordic consensus strategy had been an obstacle for the modern Swedish welfare-state legislation. Sweden couldn’t wait until the legislators in the most reluctant (read traditional)

26 Austin Sarat & Stuart Scheingold (eds.), Cause Lawyering and the State in a Global Era, Oxford University Press: Oxford/New York 2001. – Stuart A. Scheingold & Austin Sarat (eds.), Something to Believe In: Politics, Professionalism, and Cause Lawyering, Stanford Law and Politics: Stanford, California 2004.27 Deborah L. Rhode, Pro Bono in Principle and in Practice: Public Service and the Professions. Stanford Law and Politics: Stanford 2005.28 Kjell Å Modéer, The Deep Structures of European Normativity in a Global Context, in: Rechtsgeschichte – Legal History 21 (2014)


Nordic countries at last adopted the legal reform. Sweden was in that sense the most modern

and radical of the Nordic countries – at least in its own eyes. If any of the Nordic countries

were willing to join Sweden in its policy on reforms, they were most welcome. If not: Thank

you for the coffee!29

I take this example just to demonstrate that the political context in the early 1970’s was very harsh and brutal and had future effects on the legal cultures in the Nordic countries. The concept of harmonization was successively substituted with identity, and similarities with differences. From the early 1970s the Nordic legal culture can more been defined with help of their differences than with their similarities. The Department of Justice in Sweden became in the 1970s a high-profile department with a lot of devoted young jurists who wanted to make career within its highly politicized legal culture. This practical Swedish experience is important to high-light, not only as a context to the scholarly perspective Salojärvi is giving, but also to demonstrate the dynamic between theory and praxis, between scholarly and legislative work.This dissertation gives the historical explanations to the starting points of the critical methods within Western modern legal science, methods which in the 1960’s and - 70s were regarded as avant-garde but today in their essence have developed and – to a great extent – have become mainstream.

ConclusionJuhana Salojärvi’s dissertation is well structured and well written; there are few type errors or incorrect translations. If just one error in the translation has to be mentioned I will refer to just a detail in footnote 11130 where Alf Ross’ comment on Preben Stuer Lauridsen as being »en traditionstro billedstormer« has been translated to a »image- crusher«; it should be an »iconoclast«(!).The chronologically and comparatively structured outline of the book is maintainable, and the subjects for detailed studies of criminal law and constitutional law are well chosen and give good results. So Juhana Salojärvi’s dissertation is a welcome contribution to the literature in this field, with important new perspectives to the development of post-legal realism jurisprudence into new directions related to the current legal science.Even if I have put question-marks in the margin on several of Salojärvi’s statements in his 350 pages long dissertation, the concluding remark from my side is clear: He has contributed with an important book on a still more important subject related to

29 Kjell Å Modéer, Juristernas nära förflutna. Rättskulturer i förändring, Santérus Förlag: Stock- holm 2009,30 Salojärvi (2013), 181.


the current discourses within legal science in the U.S. as well as in the Nordic countries. And even more, he has demonstrated the importance of legal history for scientific research in that respect.Especially I want to emphasize his last chapter, the conclusions of his work. It’s a well-written chapter where he makes several well-founded evaluating comments. He finds the post-war legal culture »rather a continuation than a break in the development of the jurisprudential tradition« and that the critical legal scholarship of the 1960s and 1970s best can be described as a cultural movement, where this untraditional scholarship »represented a counter-culture to the traditional legal scholarship«.31 It brings a very valuable contribution to our knowledge about the post-WW II legal transitions within not only American but also Nordic intellectual jurisprudence. His work is thoroughly documented and reliable. The dissertation is an accurate descriptive historical reconstruction of legal radicalism in the countries he has investigated. It has definitively the qualities to be published as an international monograph, and it would be great if he, after a revision including a more analytic elaboration, could publish it for an international audience. I’m sure that such an international visibility of his work should result in future research in this important field of comparative legal history.

31 Salojärvi (2013), 345.Kjell Å Modéer

retfærd årgang 37 2014 nr 1 - web viewthe alternative jurisprudence, first of all the...

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