Critical legal studies
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Critical legal studies was a movement in legal thought in the 1970s and 80s committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that was perceived to be behind existing legal institutions.1 Adherents of the movement sought to destabilize traditional conceptions of law, and to unravel and challenge existing legal institutions. The more constructive members, such as Roberto Mangabeira Unger, sought to rebuild these institutions as an expression of human coexistence and not just a provisional truce in a brutal struggle,2 and were seen as the most powerful voices and the only way forward for the movement.345 Unger is one of the last standing members of the movement to continue to try to develop it in new directions—namely, to make legal analysis the basis of developing institutional alternatives.67
The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.1
Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced to American Legal Realism, as a distinct scholarly movement CLS fully emerged only in the late 1970s. Many first-wave American CLS scholars entered legal education, having been profoundly influenced by the experiences of the civil rights movement, women's rights movement, and the anti-war movement of the 1960s and 1970s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of modern Western society. Drawing on both domestic theory and the work of European social theorists, the "crits" sought to demystify what they saw as the numerous myths at the heart of mainstream legal thought and practice.
The British critical legal studies movement started roughly at a similar time as its American counterpart. However, it centered around a number of conferences held annually, particularly the Critical Legal Conference and the National Critical Lawyers Group. There remain a number of fault lines in the community, between theory and practice, between those who look to Marxism and those who worked on Deconstruction, between those who look to explicitly political engagements and those who work in aesthetics and ethics.
Although the CLS (like most schools and movements) has not produced a single, monolithic body of thought, several common themes can be generally traced in its adherents' works. These include:
- A first theme is that contrary to the common perception, legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, or, to put it differently, the law may well impose many significant constraints on the adjudicators in the form of substantive rules, but, in the final analysis, this may often not be enough to bind them to come to a particular decision in a given particular case. Quite predictably, once made, this claim has triggered many lively debates among jurists and legal philosophers, some of which continue to this day (see further indeterminacy debate in legal theory).
- Secondly, there is the idea that all "law is politics". This means that legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather, CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another. A more nuanced view has emerged more recently. This rejects the reductivism of 'all law is politics' and instead asserts that the two disciplines are mutually interspersed. There is no 'pure' law or politics, but rather the two forms work together and constantly shift between the two linguistic registers.
- A third strand of the traditional CLS school is that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals, etc.) for greater justice. This claim is often coupled with the legal realist argument that what the law says it does and what it actually tends to do are two different things. Many laws claim to have the aim of protecting the interests of the poor and the subaltern. In reality, they often serve the interests of the power elites. This, however, does not have to be the case, claim the CLS scholars. There is nothing intrinsic to the idea of law that should make it into a vehicle of social injustice. It is just that the scale of the reform that needs to be undertaken to realize this objective is significantly greater than the mainstream legal discourse is ready to acknowledge.
- Furthermore, CLS at times claims that legal materials are inherently contradictory, i.e. the structure of the positive legal order is based on a series of binary oppositions such as, for instance, the opposition between individualism and altruism or formal realizability (i.e. preference for strict rules) and equitable flexibility (i.e. preference for broad standards).
- Finally, CLS questions law's central assumptions, one of which is the Kantian notion of the autonomous individual. The law often treats individual petitioners as having full agency vis-a-vis their opponents. They are able to make decisions based on reason that is detached from political, social, or economic constraints. CLS holds that individuals are tied to their communities, socio-economic class, gender, race, and other conditions of life such that they cease to be autonomous actors in the Kantian mode. Rather, their circumstances determine and therefore limit the choices presented to them. People are not "free"; they are instead determined in large part by social and political structures that surround them.
Increasingly, however, the traditional themes are being superseded by broader and more radical critical insights. Interventions in intellectual property law, human rights, jurisprudence, criminal law, property law, international law, etc., have proved crucial to the development of those discourses. Equally, CLS has introduced new frameworks to the legal field, such as postmodernism, queer theory, literary approaches to law, psychoanalysis, law and aesthetics, and post-colonialism.
Prominent participants in the CLS movement include Drucilla Cornell, Alan Hunt, Catharine MacKinnon, Duncan Kennedy, David Kennedy, Martti Koskenniemi, Gary Peller, Peter Fitzpatrick, Morton Horwitz, Jack Balkin, Costas Douzinas, Peter Gabel, Roberto Unger, Renata Salecl, Mark Tushnet, Louis Michael Seidman, John Strawson and Martha Fineman.
CLS continues as a diverse collection of schools of thought and social movements. The CLS community is an extremely broad group with clusters of critical theorists at law schools such as Harvard Law School, Georgetown University Law Center, Northeastern University, University at Buffalo, Birkbeck, University of London; University of Melbourne, University of Kent, Keele University, the University of Glasgow, the University of East London among others.
In the American legal academy its influence and prominence seems to have waned in recent years. However, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory and ecofeminism and critical race theory now play a major role in contemporary legal scholarship. An impressive stream of CLS-style writings has also emerged in the last two decades in the areas of international and comparative law.
In addition, CLS has had a practical effect on legal education, as it was the inspiration and focus of Georgetown University Law Center's alternative first year curriculum, (Termed "Curriculum B", known as "Section 3" within the school). In the UK both Kent and Birkbeck have sought to draw critical legal insights into the legal curriculum, including a critical legal theory based LLM at Birkbeck's School of Law. Various research centers and institutions offer CLS-based taught and research courses in a variety of legal fields including human rights, jurisprudence, constitutional theory and criminal justice.
In New Zealand, the University of Otago Legal Issues Centre was established at the University's law faculty in 2007. Professor Kim Economides, Director of the University of Otago Legal Issues Centre, was a founder member of the UK Critical Legal Conference in the 1980s. He has taught critical legal studies at Otago and legal ethics at Victoria University of Wellington. Both his teaching and research currently explore critical, ethical and empirical perspectives on the operation of the legal system and lawyers' work, particularly within the context of New Zealand.
Law & Critique is one of the few UK journals that specifically identifies itself with critical legal theory. In America, The Crit is the only journal that continues to explicitly position itself as a platform for critical legal studies. However, other journals such as Law, Culture and the Humanities, Unbound: The Harvard Journal of the Legal Left, The National Lawyers Guild Review, Social and Legal Studies and the Australian Feminist Law Journal all published avowedly critical legal research.
- Turley, Jonathan. "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law Review 81 (1987): 595
- Unger, Roberto Mangabeira. Passion: An Essay on Personality. New York: Free Press, 1984, p. 47
- Turley, Jonathan. "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law Review 81 (1987): 423
- Hutchinson, Allan C, and Patrick J Monahan. 1984. "The Rights Stuff: Roberto Unger and Beyond". Texas Law Review 62: 1478
- Bartholomew, Amy, and Alan Hunt. 1990. "What's Wrong with Rights". Law and Inequality: A Journal of Theory and Practice 9: 1.
- Unger, Roberto Mangabeira. What Should Legal Analysis Become? London ; New York: Verso, 1996.
- Waldron, Jeremy. 1998. "Review: Dirty Little Secret". Columbia Law Review 98 (2) (March 1): 510–530.
- Critical theory
- Judicial activism
- Legal formalism
- Legal realism
- Critical management studies
- International legal theory
- Philosophy of law
- Rule according to higher law
- Critical race theory
- Mark Kelman, A Guide to Critical Legal Studies, Harvard University Press, 1987
- Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
- Roberto Mangabeira Unger, The Critical Legal Studies Movement, Harvard University Press, 1983
- Janet E. Halley (ed.), Wendy Brown (ed.), Left Legalism/Left Critique-P, Duke University Press 2003
- Janet E. Halley "Revised version entitled "Like-Race Arguments"" in What's Left of Theory?, Routledge, 2001.
- Richard W. Bauman, Critical legal studies : a guide to the literature, Boulder, Colo. : Westview Press, 1996
- Richard W. Bauman, Ideology and community in the first wave of critical legal studies, Toronto [u.a.] : University of Toronto Press, 2002
- Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York University Press 2004
- Duncan Kennedy, A Critique of Adjudication [fin de siecle], Harvard University Press, 1997.
- David W. Kennedy and William Fisher, eds. The Canon of American Legal Thought, Princeton University Press (2006)
- Andrew Altman, Critical Legal Studies: A Liberal Critique, Princeton University Press 1990
- John Finnis, "On the Critical Legal Studies Movement" 30 American Journal of Jurisprudence 1985
- Edwin Scott Fruehwald, "Postmodern Legal Thought and Cognitive Science," 23 Ga. St. U.L. Rev. 375 (2006).
- Le Roux and Van Marle, "Critical Legal Studies" in Roeder (ed) (2004) Jurisprudence
- Eric Engle, Marxism, Liberalism, and Feminism: Leftist Legal Thought, New Delhi: Serials (2010)
- Eric Engle, Lex Naturalis, Jus Naturalis: Law as Positive Reasoning and Natural Rationality, Melbourne: Elias Clark (2010)
- Critical Lawyers Handbook
- Legal Information Institute: Critical Legal Studies
- Critical Legal Thinking
- Law & Critique
- Duncan Kennedy's Essays on CLS
- Roberto Unger's writings on law and CLS
- David W. Kennedy's writings on CLS and international law
- Marxism, Feminism, and Liberalism: Leftist Legal Thought (2010). Explores the liberal roots of Marxism and Marxist influences on the U.S. legal thought.
- Lex Naturalis, Ius Naturalis: Law as Practical Reasoning and Natural Rationality (2010). Exposé of contemporary critical legal theory.
- Martti Koskenniemi's writings on CLS and international law