Critical legal studies
Encyclopedia
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory
Critical theory
Critical theory is an examination and critique of society and culture, drawing from knowledge across the social sciences and humanities. The term has two different meanings with different origins and histories: one originating in sociology and the other in literary criticism...

 (the Frankfurt School) to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.

History

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced to American Legal Realism
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

, 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
Critical Legal Conference
The Critical Legal Conference is an annual critical legal theory conference which gathers a community of critical legal theoreticians and activists. Along with the Conference on Critical Legal Studies in America, and Critique du Droit in France it contributed to the formation of critical legal...

 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
Marxism
Marxism is an economic and sociopolitical worldview and method of socioeconomic inquiry that centers upon a materialist interpretation of history, a dialectical view of social change, and an analysis and critique of the development of capitalism. Marxism was pioneered in the early to mid 19th...

 and those who worked on Deconstruction
Deconstruction
Deconstruction is a term introduced by French philosopher Jacques Derrida in his 1967 book Of Grammatology. Although he carefully avoided defining the term directly, he sought to apply Martin Heidegger's concept of Destruktion or Abbau, to textual reading...

, between those who look to explicitly political engagements and those who work in aesthetics and ethics.

Themes

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 statute
    Statute
    A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

    s and case law
    Case law
    In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

    ) 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
    Indeterminacy debate in legal theory
    The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is "no."...

    ).
  • 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
    Immanuel Kant
    Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....

     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
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

, jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

, criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...

, international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, etc, have proved crucial to the development of those discourses. Equally, CLS has introduced new frameworks to the legal field, such as postmodernism
Postmodernism
Postmodernism is a philosophical movement evolved in reaction to modernism, the tendency in contemporary culture to accept only objective truth and to be inherently suspicious towards a global cultural narrative or meta-narrative. Postmodernist thought is an intentional departure from the...

, queer theory
Queer theory
Queer theory is a field of critical theory that emerged in the early 1990s out of the fields of LGBT studies and feminist studies. Queer theory includes both queer readings of texts and the theorisation of 'queerness' itself...

, literary approaches to law, psychoanalysis
Psychoanalysis
Psychoanalysis is a psychological theory developed in the late 19th and early 20th centuries by Austrian neurologist Sigmund Freud. Psychoanalysis has expanded, been criticized and developed in different directions, mostly by some of Freud's former students, such as Alfred Adler and Carl Gustav...

, law and aesthetics
Aesthetics
Aesthetics is a branch of philosophy dealing with the nature of beauty, art, and taste, and with the creation and appreciation of beauty. It is more scientifically defined as the study of sensory or sensori-emotional values, sometimes called judgments of sentiment and taste...

, and post-colonialism.

Prominent participants in the CLS movement include Drucilla Cornell
Drucilla Cornell
Drucilla Cornell is a professor of Political Science, Comparative Literature, and Women's Studies at Rutgers University. She also holds visiting positions at the University of Pretoria, South Africa, and Birkbeck College, University of London...

, Alan Hunt
Alan Hunt (professor)
Alan Hunt is currently a professor of Sociology and of Law at Carleton University. He has a B.A. Hons. in Sociology; LL.B.; Ph.D. in Sociology....

, Catharine MacKinnon
Catharine MacKinnon
Catharine Alice MacKinnon is an American feminist, scholar, lawyer, teacher and activist.- Biography :MacKinnon was born in Minnesota. Her mother is Elizabeth Valentine Davis; her father, George E. MacKinnon was a lawyer, congressman , and judge on the U.S. Court of Appeals for the D.C. Circuit...

, Duncan Kennedy
Duncan Kennedy
Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School and a founder of critical legal studies as movement and school of thought. Kennedy has been a member of the ACLU since 1967. According to his own testimony, he has never forgotten to pay his dues.-Education and...

, David Kennedy
David Kennedy (jurist)
David W. Kennedy is an American academic and legal scholar known for his work on, and criticism of, international law. he holds an appointment as Vice President International Affairs at Brown University, and the endowed chair as David and Marianna Fisher University Professor of International...

, Martti Koskenniemi
Martti Koskenniemi
Martti Antero Koskenniemi is an international lawyer and a former Finnish diplomat. Currently he is professor of International Law in the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is well known for his critical approach to...

, Gary Peller
Gary Peller
Gary Peller is Professor of Law at Georgetown University Law Center and a prominent member of the critical legal studies and critical race theory movements.-Education and early career:...

, Peter Fitzpatrick, Morton Horwitz
Morton Horwitz
Morton J. Horwitz is an American legal historian and law professor at Harvard Law School. The recent past dean of Harvard Law School, Elena Kagan, relates that during her time at law school, students often nicknamed him as "Mort the Tort" since he taught the first-year subject Torts.Horwitz...

, Jack Balkin
Jack Balkin
Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School...

, Costas Douzinas
Costas Douzinas
Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities at Birkbeck, University of London. He is well known for his work in Human Rights, Aesthetics, Postmodern Legal Theory and Political Philosophy...

, Peter Gabel
Peter Gabel
Peter Gabel, Ph.D., is an American law academic and associate editor of Tikkun, a bi-monthly Jewish critique of politics, culture, and society and has written a number of articles for the magazine on subjects ranging from the original intent of the framers of the Constitution to the...

, Roberto Unger, Renata Salecl
Renata Salecl
Renata Salecl is a Slovenian philosopher, sociologist and legal theorist. She is a senior researcher at the Institute of Criminology, Faculty of Law at the University of Ljubljana...

, Mark Tushnet
Mark Tushnet
Mark Victor Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. A prominent scholar of constitutional law and legal history, he is the author of many books and articles.-Career:...

 and Louis Michael Seidman
Louis Michael Seidman
Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center in Washington DC, a widely read constitutional law scholar and major proponent of the critical legal studies movement....

.

Criticism

Many conservative and liberal scholars were highly critical of the critical legal studies movement. The idea that the law was utterly indeterminate was contested in a famous debate
Indeterminacy debate in legal theory
The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is "no."...

 in the late 1980s. More conservative critics argued that the radical nature of the movement was inconsistent with the mission of professional legal education.

Continued influence

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
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

, Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...

, Northeastern University, University at Buffalo, Birkbeck College London, University of Melbourne
University of Melbourne
The University of Melbourne is a public university located in Melbourne, Victoria. Founded in 1853, it is the second oldest university in Australia and the oldest in Victoria...

, University of Kent
University of Kent
The University of Kent, previously the University of Kent at Canterbury, is a public research university based in Kent, United Kingdom...

, Keele University
Keele University
Keele University is a campus university near Newcastle-under-Lyme in Staffordshire, England. Founded in 1949 as an experimental college dedicated to a broad curriculum and interdisciplinary study, Keele is most notable for pioneering the dual honours degree in Britain...

, the University of Glasgow
University of Glasgow
The University of Glasgow is the fourth-oldest university in the English-speaking world and one of Scotland's four ancient universities. Located in Glasgow, the university was founded in 1451 and is presently one of seventeen British higher education institutions ranked amongst the top 100 of the...

, the University of East London
University of East London
The University of East London is a university located in the London Borough of Newham, East London, England, based at two campuses in Stratford and Docklands areas...

 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
Critical race theory
Critical Race Theory is an academic discipline focused upon the intersection of race, law and power.Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry...

 continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory
Feminist theory
Feminist theory is the extension of feminism into theoretical, or philosophical discourse, it aims to understand the nature of gender inequality...

 and ecofeminism
Ecofeminism
Ecofeminism is a social and political movement which points to the existence of considerable common ground between environmentalism and feminism, with some currents linking deep ecology and feminism...

 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
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...

 alternative first year curriculum, (Termed "Curriculum B", known as "Section 3" within the school). In the UK both Kent and Birkbeck Law Schools have sought to draw critical legal insights into the legal curriculum, including a critical legal theory based LLM at Birkbeck. 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
University of Otago
The University of Otago in Dunedin is New Zealand's oldest university with over 22,000 students enrolled during 2010.The university has New Zealand's highest average research quality and in New Zealand is second only to the University of Auckland in the number of A rated academic researchers it...

 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
Victoria University of Wellington
Victoria University of Wellington was established in 1897 by Act of Parliament, and was a former constituent college of the University of New Zealand. It is particularly well known for its programmes in law, the humanities, and some scientific disciplines, but offers a broad range of other courses...

. 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
Law & Critique
Law and Critique is a triannual law journal closely involved with the critical legal studies community. It was established in 1990 and is associated with the Critical Legal Conference...

 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.

See also

  • Critical theory
    Critical theory
    Critical theory is an examination and critique of society and culture, drawing from knowledge across the social sciences and humanities. The term has two different meanings with different origins and histories: one originating in sociology and the other in literary criticism...

  • Judicial activism
    Judicial activism
    Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

  • Legal formalism
    Legal formalism
    Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...

  • Legal realism
    Legal realism
    Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

  • Critical management studies
    Critical management studies
    Critical management studies is a loose but extensive grouping of politically left wing and theoretically informed critiques of management, business and organisation, grounded originally in a critical theory perspective...

  • International legal theory
  • Rule according to higher law
    Rule according to higher law
    The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...


Further reading

  • Mark Kelman
    Mark Kelman
    Mark Kelman is jurist and vice dean of Stanford Law School. As a prominent legal scholar, he has applied social science methodologies, including economics and psychology, to the study of law. He is one of the most cited law professors...

    , A Guide to Critical Legal Studies, Harvard University Press, 1987
  • Costas Douzinas
    Costas Douzinas
    Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities at Birkbeck, University of London. He is well known for his work in Human Rights, Aesthetics, Postmodern Legal Theory and Political Philosophy...

     & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
  • Roberto Mangabeira Unger
    Roberto Mangabeira Unger
    Roberto Mangabeira Unger is a philosopher and politician. He has written widely on social, political, legal, and economic theory, much of which has laid the philosophical and theoretical groundwork for reimagining and remaking the social and political order...

    , 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
    Duncan Kennedy
    Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School and a founder of critical legal studies as movement and school of thought. Kennedy has been a member of the ACLU since 1967. According to his own testimony, he has never forgotten to pay his dues.-Education and...

    , Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York University Press 2004
  • Duncan Kennedy
    Duncan Kennedy
    Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School and a founder of critical legal studies as movement and school of thought. Kennedy has been a member of the ACLU since 1967. According to his own testimony, he has never forgotten to pay his dues.-Education and...

    , A Critique of Adjudication [fin de siecle], Harvard University Press, 1997.
  • David W. Kennedy and William Fisher
    William W. Fisher
    William "Terry" W. Fisher III is the WilmerHale Professor of Intellectual Property Law at Harvard Law School and faculty director of the Berkman Center for Internet and Society...

    , 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
    John Finnis
    John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...

    , "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)

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK