Critical legal studies
Critical legal studies is a movement in legal theory and a network of leftist legal scholars that emerged in the 1970s in the United States. Considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective", critical legal studies was committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that CLS scholars argued are at the root of liberal legal institutions in the West. According to CLS scholars Duncan Kennedy and Karl Klare, critical legal studies was "concerned with the relationship of legal scholarship and practice to the struggle to create a more humane, egalitarian, and democratic society." During its period of peak influence, the critical legal studies movement caused considerable controversy within the legal academy. Members such as Roberto Mangabeira Unger have sought to rebuild these institutions as an expression of human coexistence and not just a provisional truce in a brutal struggle and were seen as the most powerful voices and the only way forward for the movement. Unger and other members of the movement continue to try to develop it in new directions, e.g., to make legal analysis the basis of developing institutional alternatives.
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.
The relation of critical legal studies to American legal realism
Critical legal studies had its intellectual origins in the American legal realist movement in the 1930s. Prior to the 1930s, American jurisprudence had been dominated by a formalist account of how courts decide cases, an account which held that judges decide cases on the basis of distinctly legal rules and reasons that justify a unique result. The legal realists persuasively argued that statutory and case law is indeterminate, and that appellate courts decide cases not based upon law, but upon what they deem fair in light of the facts of a case. Considered "the most important jurisprudential movement of the 20th century", American legal realism sent a shock through American legal scholarship by undermining the formalist tenets that were long considered a bedrock of jurisprudence.
The influence of legal realism unsettled American jurisprudence for decades. Alan Hunt writes that the period "between the realism of the 1930s and the emergence of critical legal studies in the late 1970s has been a series of unsuccessful attempts to recover from the shock of realism some basis for a legal theory which articulates an image of the objectivity of the legal process, even though the explanation offered by post-realism had to be more complex than that provided by a doctrine of rule-following."
Critical legal studies as a literature and a network
The critical legal studies movement emerged in the mid-1970s as a network of leftist law professors in the United States who developed the realist indeterminacy thesis in the service of leftist ideals. According to Roberto Unger, the movement "continued as an organizing force only until the late 1980s. Its life as a movement lasted for barely more than a decade."
Duncan Kennedy, a Harvard law professor who along with Unger was one of the key figures in the movement, has said that, in the early days of critical legal studies, "just about everyone in the network was a white male with some interest in 60s style radical politics or radical sentiment of one kind or another. Some came from Marxist backgrounds--some came from democratic reform." Kennedy has emphasized the twofold nature of critical legal studies, as both a network of leftist scholar/activists and a scholarly literature:
[C]ritical legal studies has two aspects. It’s a scholarly literature and it has also been a network of people who were thinking of themselves as activists in law school politics. Initially, the scholarly literature was produced by the same people who were doing law school activism. Critical legal studies is not a theory. It’s basically this literature produced by this network of people. I think you can identify some themes of the literature, themes that have changed over time.
Scholars affiliated with critical legal studies often identified with the movement in several ways: by including in their articles an opening footnote mentioning the Conference on Critical Legal Studies and providing the organization’s contact information, by attending conferences of the CCLS, and by citing the work of fellow critical legal studies scholars. A 1984 bibliography of CLS works, compiled by Duncan Kennedy and Karl Klare and published in the Yale Law Journal, included dozens of authors and hundreds of works.
A 2011 collection of four volumes edited by Costas Douzinas and Colin Perrin, with the assistance of J-M Barreto, compiles the work of the British Critical Legal Studies, including their philosophical mentors. It showcases scholarship elaborated since its origins in the late 1980s in areas such as legal philosophy, literature, psychoanalysis, aesthetics, feminism, gender, sexuality, post-colonialism, race, ethics, politics and human rights.
Prominent participants in the CLS movement include Drucilla Cornell, Mark Kelman, Alan Hunt, Catharine MacKinnon, Duncan Kennedy, David Kennedy, Martti Koskenniemi, Gary Peller, Peter Fitzpatrick, Morton Horwitz, Jack Balkin, Costas Douzinas, Karl Klare, Peter Gabel, Roberto Unger, Renata Salecl, Mark Tushnet, Louis Michael Seidman, John Strawson and Martha Fineman.
The intellectual and political context of critical legal studies
Roberto Unger, a key member of critical legal studies whose influence had continued to be far-reaching in the decades following the movement’s decline, has written that the founders of critical legal studies "never meant it to become an ongoing school of thought or genre of writing. They wanted to intervene in a particular circumstance …"
That circumstance was the dominant practice of legal analysis which Unger calls the "method of reasoned elaboration." A close descendant of nineteenth-century doctrinal formalism, which sought through legal analysis to identify the "inbuilt legal content of a … free society," the method of reasoned elaboration treated law materials as containing an "ideal element", an inherent legal substance underlying the contradictions and ambiguities in the law’s text. Under the practice of reasoned elaboration, this inherent legal substance forms a prescriptive system that judges gradually uncover by reasoning through the policies and principles of law without questioning the "basic institutional arrangements of the market economy, of democratic politics, and of civil society outside the market and the state."
Reasoned elaboration was a pernicious influence for several reasons, Unger and others argued: it de-emphasized the contingent nature of law as a product of deals and compromise, instead treating it as containing a coherent prescriptive system that needed simply to be uncovered by legal interpretation; it obscured how judges usurp authority by denying their own role in making law; and finally, reasoned elaboration inhibited the use of law as a mechanism of social change.
In addition to the context of legal interpretation, critical legal studies also emerged in response to its political context, namely a setting in which the social-democratic settlement that was finalized after World War II had become canonical, and active dispute over the organization of society severely declined, effectively enshrining a reigning consensus about social organization that Unger describes as including a "combination of neoliberal orthodoxy, state capitalism, and compensatory redistribution by tax and transfer." Critical legal scholars challenged that consensus and sought to use legal theory as a means to explore alternative forms of social and political organization.
In accordance with the Critical rationalism the German jurist Reinhold Zippelius uses Popper's method of "trial and error" in his 'Legal Philosophy'.
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 intertwined. 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-à-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.
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 and socio-legal studies departments such as Harvard Law School, Georgetown University Law Center, Northeastern University, University at Buffalo, Birkbeck, University of London, University of Melbourne, University of Kent, Carleton University, 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.
Law and 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 Harvard Civil Rights-Civil Liberties Law Review, The National Lawyers Guild Review, Social and Legal Studies, and The Australian Feminist Law Journal all published avowedly critical legal research.
- Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. See . DOI, 10.1093/ojls/6.1.1.
- Turley, Jonathan. "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law Review 81 (1987): 593-620, esp. "Introduction: Roberto Unger's Politics, A Work in Constructive Social Theory," pp. 593-595 [verified], and 423. Quote: "At its most basic level, the CLS movement challenges society to consider some ultimate questions about the validity of its own institutions and to reconsider some past 'ultimate answers' upon which those institutions are based."
- Duncan Kennedy and Karl E. Klare, "A Bibliography of Critical Legal Studies," Yale Law Journal, Vol. 94 (1984): 461.
- Unger, Roberto Mangabeira. Passion: An Essay on Personality. New York: Free Press, 1984, p. 47
- 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.
- Unger, Roberto Mangabeira, The Critical Legal Studies Movement. New York:Verso, 2015.
- Waldron, Jeremy. 1998. "Review: Dirty Little Secret." Columbia Law Review 98 (2) (March 1): 510–530.
- Leiter, Brian, American Legal Realism. U of Texas Law, Public Law Research Paper No. 42. Available at SSRN. DOI, 10.2139/ssrn.339562.
- Unger 2015, p. 24.
- Gerard J. Clark, "A Conversation with Duncan Kennedy," The Advocate: The Suffolk University Law School Journal, Vol. 24, No. 2 (1994): 56-61. See .
- Douzinas, Costas and Perrin, Colin. Critical Legal Theory, London: Routledge, 2011. See .
- Unger 2015, p. 5.
- Unger 2015, p. 8.
- Unger 2015, p. 6.
- Unger 2015, p. 7.
- Unger 2015, p. 11f.
- Unger 2015, p. 14.
- Unger 2015, p. 15.
- Reinhold Zippelius, Die experimentierende Methode im Recht, Akademie Mainz, 1991, ISBN 3-515-05901-6; Rechtsphilosophie, 6. Aufl. 2011, § 11 III, ISBN 978-3-406-61191-9
Further information on the title subject, presented in inverse order of date of publication, and alphabetical by author, within year:
- Eric Heinze, The Concept of Injustice Abingdon, UK: Routledge, 2013
- Costas Douzinas & Colin Perrin. Critical Legal Theory, 4 volumes, London: Routledge, 2011
- 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
- Edwin Scott Fruehwald, "Postmodern Legal Thought and Cognitive Science," 23 Ga. St. U.L. Rev. 375, 2006
- David W. Kennedy and William Fisher, eds. The Canon of American Legal Thought, Princeton, NJ: Princeton University Press, 2006
- Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
- Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York, NY: New York University Press, 2004
- Le Roux and Van Marle, "Critical Legal Studies" in Roeder (ed), Jurisprudence, 2004
- Janet E. Halley (ed.), Wendy Brown (ed.), Left Legalism/Left Critique-P, Durham, NC: Duke University Press 2003
- Richard W. Bauman, Ideology and community in the first wave of critical legal studies, Toronto, CA : University of Toronto Press, 2002
- Janet E. Halley "Revised version entitled "Like-Race Arguments"" in What's Left of Theory?, Abingdon, UK: Routledge, 2001
- E. Dana Neacsu, CLS Stands for Critical Legal Studies, If Anyone Remembers, 8 J. L. & Pol'y, see , 2000
- Duncan Kennedy, A Critique of Adjudication [fin de siecle], Cambridge, MA: Harvard University Press, 1997
- Richard W. Bauman, Critical legal studies : a guide to the literature, Boulder, CO: Westview Press, 1996
- Andrew Altman, Critical Legal Studies: A Liberal Critique, Princeton, NJ: Princeton University Press 1990
- J.M. Balkin, "Ideology as Constraint: Andrew Altman, 'Critical Legal Studies: A Liberal Critique' (1990)" [book review], 43 Stan. L. Rev. 1133, 1991
- David L. Gregory, "A Guide to Critical Legal Studies, by Mark Kelman, 1987" [book review] Duke L.J. 1138, 1987
- Mark Kelman, A Guide to Critical Legal Studies, Cambridge, MA: Cambridge, MA: Harvard University Press, 1987
- Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells, 62 N.Y.U. L. Rev. 429, 1987
- John Finnis, "On the Critical Legal Studies Movement" 30 American Journal of Jurisprudence, 1985
- Roberto Mangabeira Unger, The Critical Legal Studies Movement, Cambridge, MA: Harvard University Press, 1983
- Pierre Schlag, "Critical Legal Studies," Oxford International Encyclopedia of Legal History
- 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