Critical legal studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.[1] CLS adherents claim that laws are devised to maintain the status quo of society and thereby codify its biases against marginalized groups.[2]
Influence[edit]
Considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective",[1] 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.[4] 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."[5]
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[6] and were seen as the most powerful voices and the only way forward for the movement.[4][7][8] 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.[9][10][11]
Relation to American legal realism[edit]
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 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",[12] 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."[1]
Intellectual and political context[edit]
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 ..."[13]
That circumstance was the dominant practice of legal analysis which Unger calls the "method of reasoned elaboration".[16] A close descendant of nineteenth-century doctrinal formalism, which sought through legal analysis to identify the "inbuilt legal content of a ... free society",[17] 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.[18] 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".[19]
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.[20]
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,[21] 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."[22] 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'.[23]
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:
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.
Criticism[edit]
The stance "law is politics" of Critical legal studies has been criticized for rejecting the distinction between political argument and legal argument.[26] Critical legal studies has been criticized as attacking the rule of law and separation of powers.[27] The indeterminacy thesis stance by Critical legal studies has been criticized to not distinguish between the strong and weak indeterminacy thesis.[28] The strong indeterminancy thesis has been argued by some to be incorrect due to the existence of easy legal cases where some outcomes cannot be legally correct.[28] Constitutionalism argues that the authority of government is limited by constitutional law",[29] in contrast to Critical legal studies, which disputes the constraints by constitution.[26]
Further information on the title subject, presented in inverse order of date of publication, and alphabetical by author, within year:
34 American University L. Rev. 1065, 1985