Critical Legal Studies
CRITICAL LEGAL STUDIES
An intellectual movement whose members argue that law is neither neutral nor value free but is in fact inseparable from politics.
Critical legal studies (CLS) is a sometimes revolutionary movement that challenges and seeks to overturn accepted norms and standards in legal theory and practice. CLS seeks to fundamentally alter jurisprudence, exposing it as not a rational system of accumulated wisdom but an ideology that supports and makes possible an unjust political system. CLS scholars attempt to debunk the law's pretensions to determinacy, neutrality, and objectivity. The law, in CLS scholarship, is a tool used by the establishment to maintain its power and domination over an unequal status quo. Openly a movement of leftist politics, CLS seeks to subvert the philosophical and political authority of what it sees as an unjust social system. CLS advances a theoretical and practical project of reconstruction of the law and of society itself. CLS is also a membership organization that seeks to advance its own cause and that of its members.
CLS was officially started in the spring of 1977 at a conference at the University of Wisconsin in Madison. However, the roots of the organization extend back to legal realism, a movement in U.S. legal scholarship that flourished in the 1920s and 1930s. oliver wendell holmes is credited with being the grandfather of CLS with his various observations in The Common Law (1881). The legal realists rebelled against the accepted legal theories of the day, including most of the accepted wisdom of nineteenth-century legal thought. Like CLS, legal realism emphasized that judicial decisions depend largely on the predilections and social situation of the judge. Thus, the legal realists urged that much more attention be paid to the social context of the law. The legal realists eventually influenced the development of the new deal under President franklin d. roosevelt in the 1930s, and many served in positions where they affected government policy.
In the 1960s, many of the founding members of CLS participated in social activism connected to the civil rights movement and the vietnam war. Many future CLS scholars entered law school in those years or shortly thereafter, and they quickly became unhappy with what they saw as a lack of philosophical depth and rigor in the teaching and theory of law. Roberto Mangabeira Unger, a leading CLS theorist, has described the law faculty of those days as "a priesthood that had lost their faith and kept their jobs." These young students began to apply the ideas, theories, and philosophies of postmodernity (intellectual movements of the last half of the twentieth century) to the study of law, borrowing from fields as diverse as social theory, political philosophy, economics, and literary theory. Since then, CLS has steadily grown in influence. By 1989, over 700 articles and books had been published expounding the ideas of this movement. Besides Unger, noted CLS theorists include Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and catharine a. mackinnon.
CLS has been largely a U.S. movement, though it has borrowed heavily from European philosophers, including nineteenth-century German social theorists such as karl marx, Friedrich Engels, and max weber; Max Horkheimer and Herbert Marcuse of the Frankfurt school of German social philosophy; the Italian Marxist Antonio Gramsci; and poststructuralist French thinkers such as Michel Foucault and Jacques Derrida, representing, respectively, the fields of history and literary theory.
Several subcategories exist within the CLS movement: feminist legal criticism, which examines the role of gender in the law; critical race theory (CRT), which is concerned with the role of race in the law; postmodernism, a critique of the law influenced by developments in literary theory; and a subcategory that emphasizes political economy and the economic context of legal decisions and issues. Scholars disagree about the extent to which CLS is a coherent intellectual movement. Some see it simply as a political position adopted by a disparate group of legal theorists who have fundamentally different, even contradictory, views. Others emphasize that CLS theorists share a number of important ideas and approaches that together constitute a new approach to legal scholarship.
First among the basic ideas that CLS scholars tend to share is the notion that law is politics—in other words, that law and politics are indistinguishable from one another. Liberalism, according to CLS theorists, has traditionally viewed the law as an objective, rational process of precise decision-making and politics as a realm of imprecise, often irrational opinions and competing interests. According to CLS theorists, however, the law is not separate from the political realm and its disputes. Legal reasoning, rather than being a strong fortress of objective rationality, is a fragile structure fraught with contradictory and arbitrary categorizations that are endlessly redefined and reworked.
In this view, the law is only an elaborate political ideology, which, like other political ideologies, exists to support the interests of the party or class that forms it. The legal system, according to CLS, supports the status quo, perpetuating the established power relations of society. The law does have logic and structure, but these grow out of the power relationships of society. CLS therefore sees the law as a collection of beliefs and prejudices that covers the injustices of society with a mask of legitimacy. Law is an instrument for oppression used by the wealthy and the powerful to maintain their place in the hierarchy.
As part of its project, CLS exposes what it sees as the flaws in various aspects of liberal legal theory and practice. It argues, for example, that judicial objectivity is impossible because political neutrality or philosophical objectivity cannot exist. CLS thus strips the judiciary of its supposedly disinterested role in society. As Allan C. Hutchinson, a CLS theorist, wrote: "The judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of vested white and male power." In this way, CLS seeks to "delegitimate" and "demystify" the law—that is, it seeks to undermine the law's acceptance and to remove the cloak of mystery and awe surrounding its functioning.
CLS theorists also share the related view that the law is indeterminate. They have shown that using standard legal arguments, it is possible to reach sharply contrasting conclusions in individual cases. The conclusions reached in any case will have more to do with the social context in which they are argued and decided than with any overarching scheme of legal reasoning. Moreover, CLS scholars argue that the esoteric and convoluted nature of legal reasoning actually screens the law's indeterminacy. They have used the ideas of deconstruction to explore the ways in which legal texts are open to multiple interpretations. (Deconstruction is a movement in literary theory that is connected to the work of French philosopher Derrida and that emphasizes the fundamental indeterminacy of language.)
Consistent with their position on the political left, CLS scholars have a common dissatisfaction with the established legal and political order and particularly for the liberalism that they see as the dominant political ideology. CLS demonstrates how liberalism describes the world according to categories that exist as dualities: subjective-objective, male-female, public-private, self-other, individual-community, and so forth. These dualities are sometimes called paired opposites by CLS theorists. CLS then breaks down the dualities and shows how they create an ideology that furthers the interests of the ruling class. CLS theorists also decry the individualism that liberal society fosters, and they call for a renewed emphasis on communal rather than individual values. They particularly object to capitalism as an economic system, and they see liberalism as capitalism's greatest apologist.
Feminist Legal Criticism
Catharine A. MacKinnon is a leading figure in radical feminist criticism (sometimes called fem-crit). Throughout her career, MacKinnon has attempted to show the ways in which the established legal system reflects the sexism of the society that created it. The law, according to MacKinnon, is only one extension of a male-dominated society that is characterized by inequality between the genders and by the sexual objectification of women. As the product of a male-oriented view of the world and a male-dominated state, the law systematically victimizes and discriminates against women. "The law," MacKinnon wrote, "sees and treats women the way men see and treat women." It ensures male control over female sexuality. The feminist project to counter this negative aspect of the legal tradition, MacKinnon wrote, is "to uncover and claim as valid the experience of women, the major content of which is the devalidation of women's experience."
One topic that MacKinnon has examined in detail is the legal doctrine regarding rape. Citing the difficulty that women have proving legally that they have been raped, MacKinnon interprets rape doctrine as the product of male ideology. She argues that rape and the laws surrounding it, which are often ineffective in securing convictions of male rapists, are used by men to keep women in a position of submission and inferiority. The law's standards of objectivity and neutrality, according to MacKinnon, actually hide a male bias that makes it very difficult for a woman to win a rape case in the legal system. The state thus perpetuates rape in a way that promotes the dominance of men.
MacKinnon also uses rape as an example of the way in which the conventional liberal distinction between public and private spheres actually enhances male power. For women, according to MacKinnon, the private sphere cannot be separated from the public. The private sphere as it is usually understood—that is, the home—is actually a place where the law defines men's right to dominate women through domestic abuse, marital rape, and exploitive work conditions. The law, according to MacKinnon, overlooks such injustices, and legal doctrines regarding the private sphere of the home perpetuate rather than resolve them.
Critical Race Theory (CRT)
CRT began in the mid-1970s when many intellectuals perceived that the civil rights movement of the 1960s had ended and that in fact many of its gains were being turned back. As a result, they began to develop new theories and concepts that would allow them to understand the causes and implications of these new developments. Like CLS, CRT gathers disparate scholars and theorists under a common heading. However, CRT is a less formally organized school of thought than CLS. Leading critical race theorists include derrick albert bell jr., Alan D. Freeman, and Patricia J. Williams. The first annotated bibliography of CRT writings, published in 1993, listed over 200 books and articles.
Critical race theorists share a number of themes. Like CLS, CRT finds major faults in liberalism and particular features of liberal jurisprudence that bear on race, including affirmative action, neutrality, and "color blindness." Many CRT writers, for example, dispute that the Constitution is or ever can be "color-blind." They also assert that supposed breakthroughs in the area of racial rights by the Supreme Court serve only to validate an unjust political system by creating the illusion that racial inequalities are being ended when in fact they are not. CRT scholars generally seek a greater understanding of the social origins of race and racism, and, like CLS theorists, they employ social theory and science in that cause. Many in the CRT movement examine how the structure of legal thought or culture influences its content, usually in a way that maintains the status quo. Some in the movement make a case for cultural separatism or nationalism for people of color, arguing that preserving the diversity and separateness of different racial groups will benefit everyone. CRT also attempts to understand the cyclical nature of U.S. race relations—characterized by periods of racial progress and relative harmony followed by periods of racial retrenchment and discord. CRT writers also make frequent use of historical and social theories regarding colonialism and slavery.
Many CRT writers employ unconventional narrative methods—sometimes called legal storytelling—in their legal writing, including fiction, myth, parable, anecdote, and autobiography. These approaches often demonstrate the way in which the majoritarian mind-set (in this case, the outlook of the white majority, including its prejudices and presuppositions) impedes the cause of racial reform. Bell, for example, published in a legal journal a science fiction story with implications for race relations in the United States. In it, an extraterrestrial race comes to earth and offers to solve the United States' economic and environmental problems in exchange for possession of all black U.S. citizens. In describing what happens after this event, the story shows how a majority group (here, white U.S. citizens) must always put some other group on the bottom of the socioeconomic ladder as a scapegoat for the country's social ills.
CLS and Its Alternative View of the Law and Society
Consistent with their leftist heritage, CLS theorists call for radical changes in the law and in the structure of society itself. Unger has called this radical project "institutional reconstruction." Many in the CLS movement want to overturn the hierarchical structures of domination in modern society, and many of them have focused on the law as a tool in achieving this goal. The law, CLS claims, has played a key role in maintaining that hierarchy by impeding efforts at social change. In general, CLS argues that there is no natural or inevitable form of social organization, and there is by no means agreement between CLS scholars as to what form society and its laws should take. CLS thus avoids the kind of blueprint for social revolution that radical leftist movements such as Marxism-Leninism supplied in the past. Instead, leading CLS devotees envision a potential emancipation of individuals from the structures of power that restrict and victimize them. For these reasons, the political philosophy of many in the CLS movement has been described as utopian, a characterization that many do not completely deny.
Unger provides the most well-known example of the utopian tendencies in CLS. In his writings, he has attempted to outline a "cultural-revolutionary practice" that will lead to nothing less than "the systematic remaking of all direct personal connections … through their progressive emancipation from a background plan of social division and hierarchy." Unger envisions a future in which the categories that currently divide and separate people—including sexual, racial, political, and class categories—are broken down, allowing people to share more values and to create a more harmonious society. He calls for an "empowered democracy" with a government and economy that are largely decentralized. In terms of the economy, he proposes that capital be controlled by the government, which would establish a "rotating capital fund" that would pass to "teams of workers or technicians" who would decide how to use it. Many conditions of the economy, such as income disparity between individuals, would be addressed by "central agencies of government."
Such innovations would require major changes in the law, particularly as regards an understanding of rights, including property rights. In his call for a radical restructuring of rights, Unger proposes creating four categories: immunity rights, which protect the individual from the state, organizations, and other individuals; destabilization rights, which make it possible to dismantle institutions and practices that create social hierarchy and division; market rights, which constitute claims to social capital and replace conventional property rights; and solidarity rights, which are "the legal entitlements of communal life." Despite his criticism of liberalism, Unger calls his philosophy "superliberalism":
It pushes the liberal premises about state and society, about freedom from dependence and governance of social relations by the will, to the point at which they merge into a larger ambition: the building of a social world less alien to a self that can always violate the generative rules of its own mental or social constructs and put other rules and other constructs in their place. Unger therefore seeks to reform the law and society in such a way as to liberate and empower every individual.
CLS has many critics. Some see it as lacking coherence, fraught with the very contradictions that it identifies in liberalism. Others accuse the movement of being nihilistic, of destroying the foundations of legal reasoning without putting anything in its place or without even making positive recommendations for change. They find CLS prescriptions for the future to be too vague and utopian for practical application. Another widespread complaint is that the writings of CLS scholars are unnecessarily obscure, opaque, and turgid.
Despite these criticisms, CLS has greatly influenced the study and theory of the law. After some early battles to gain acceptance in the 1970s and 1980s, it earned an accepted position in law schools across the United States. However, some legal scholars, both inside and outside the CLS movement, argue that as many of the original CLS adherents age and reach positions of power in established law schools, their original radical impetus will fade and moderate. Others argue that the call for justice and equality will always require an untempered radicalism that will be fueled by CLS. Whatever the outcome, CLS has permanently changed the landscape of legal theory.
Delgado, Richard. 1993. "Critical Race Theory: An Annotated Bibliography." Virginia Law Review 79.
Hutchinson, Allan C., ed. 1989. Critical Legal Studies. Totowa, N.J.: Rowman & Littlefield.
——. 1987. Critical Legal Studies. Lanham, Md.: Rowman & Littlefield.
Unger, Roberto M. 1986. The Critical Legal Studies Movement. Cambridge, Mass.: Harvard Univ. Press.
Oetken, J. Paul. 1991. "Form and Substance in Critical Legal Studies." Yale Law Journal 100.
Tushnet, Mark. 1991. "Critical Legal Studies: A Political History." Yale Law Journal 100.
Unger, Roberto M. 1986. The Critical Legal Studies Movement. Cambridge, Mass.: Harvard Univ. Press.