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Introduction

The origins of Critical Legal Studies (CLS) can be traced to the first Conference on Critical Legal Studies at the University of Wisconsin at Madison in 1977, where a group of legal scholars, practitioners, teachers, and students, dissatisfied with the Law and Society Association’s empirico-behaviorist focus, met to discuss the formation of a new association.[1] Many of the participants in that conference were former 1960s-era students or radical lawyers active in the antiwar and civil rights movements.[2] They were drawn to Madison in 1977 by a preference for egalitarian social and economic structures, a dissatisfaction with the traditional law school curriculum, and an impatience with ‘sterile’ forms of legal reason.[3] In contrast to the sterile reason of mainstream legal doctrine, CLS scholars sought a critique of law that would be capable of both understanding and changing the legal system and the society of which it was a part.[4]

The substance of the CLS critique, developed in a plethora of law review articles and books since 1977, can be reduced into two related propositions: the indeterminacy thesis and the ideology thesis. The indeterminacy thesis claims that law is internally and externally inconsistent[5] whilst the ideology thesis claims that law is ideological and partisan rather than neutral and independent.[6] These theses build on the earlier legal realist insight that law can be understood better by analyzing ‘non-technical’ or ‘extra-legal’ considerations in legal decision making rather than the formal development of legal rules.[7] The indeterminacy and ideology theses, however, go well beyond the legal realist project.[8] These theses are not simple empirical claims to be tested against the facts of the way law operates. Nor are they mere criticisms designed to leave the deeper structure of law untouched. Rather, CLS offers these claims in the form of a critique, designed to both understand and change legal and social reality.

This essay is a critical examination of this critique of legal rules, in particular its assertion that the law is indeterminate and that such indeterminacy only serves to promote the interests of the powerful.

A crash course in indeterminacy and its implications

Although earlier versions of the CLS critique are easily traced to Frankfurt School, structuralist, and Marxist sources,[9] its present theoretical stance is not so clear. The breadth of the movement since inception defies any categorising descriptions.[10] Nevertheless, CLS is composed of at least two distinct theoretical schools that can be classified based on the implications drawn from the indeterminacy and ideology theses: the critical modern school and the postmodern school. The critical modern school explores legal indeterminacy and ideology in order to illustrate the failure of the liberal form of economy and society.[11] It draws its theoretical support from Marxism, Freudianism, and the Frankfurt School.[12] On the other hand, the postmodern school explores legal indeterminacy and ideology to illustrate the failure of all totalizing rational thought and to show that no objectively correct legal or political results are possible.[13] It draws its inspiration from the theories of the decentred postmodern subject offered by Michel Foucault, Jacques Lacan, Jean-Francois Lyotard, Jacques Derrida, and others.[14] This latter strand of CLS has been in vogue since at least the mid-1980s and is clearly on the rise[15] and is, consequently, the one on which this analysis focuses.

According to CLS, liberalism’s theory of law, including legal positivism, is deluded by a notion of the law as a closed, highly formal, vaguely machine-like system. In this system, cases are decided logically by applying the correct rule to the facts at hand.[16] CLS scholars, most prominently Roberto Unger and Duncan Kennedy, criticize formalism in the liberal rule of law, because it upholds dominant ideologies that reinforce existing hierarchical relations of inequality. CLS criticizes liberal law as the mask behind which hide the ideological function of judicial and state administrative officers.[17]

CLS ultimately indicts postmodern liberal adjudication pointing out that liberal legal theory avoids the reality of jurisprudence by denying the existence of gaps within the law - namely, the fact that the formal rules of statutory law cannot possibly cover all instances of concrete reality. Liberalism demotes judges to the status of mere vending machines that mechanically dispense the law upon cases, without intellectual reflection or active contribution; and, leaves the legal theorist inadequately equipped to analyze exactly how the law is applied. In this regard, CLS points primarily to the uncertain nature of meaning in language as the source of the indeterminacy of deciding cases. Legal rules are so far from clear, regarding where and how they should be applied, that there is no possibility of their being applied consistently or objectively. According to CLS, this lack of determinacy shakes the very foundations of liberal formalist notions of efficiency and justice. As a result, they conclude that, to a large extent, judges make the law. Consequently, CLS insists that the subjective decision-making that goes on behind the supposedly objective formal rule of law must be exposed in order to undermine the generally conservative rulings of judges which are masked under notions of impartiality and fairness.

The subjective-judging criticism allows CLS to criticize legal liberalism for falsely separating politics from the law arguing that there is no sharp distinction between objective law and subjective politics. Scholars like Mark Tushnet, James Boyle, Roberto Unger, and, Duncan Kennedy, argue that political value judgments infiltrate the law at every turn.[18] The law embodies specific political and, especially, economic values like self-interest, individualism, and advantage, and reflects the personal prejudices of particular judges and allows them to protect and promote the interests of the powerful and wealthy under the guise of neutral law.[19] Kennedy is perhaps most cynical in his assertion that judges generally pursue ‘ideological projects’ of varying stripes, but mostly decide cases so as to curry favour with, and secure the interests of, what he calls the ‘intelligentsia’-the movers and shakers in the City.[20] Moreover, judges deny such strategic political behaviour, according to Kennedy, in deliberate ‘bad faith.’[21]

The CLS critique of the nature of law and its indeterminacy is engaging but is not without its weaknesses and non-believers in the CLS gospel have been quick to pounce. Below I present some of their criticisms.

Deconstructing CLS

CLS falters in analyzing the possibilities of knowledge about law is by largely failing to reconcile its own contradictory claims regarding the indeterminacy and ideology theses. On one hand, CLS claims that law is radically inconsistent and unpredictable and that law is not determined by any socio-economic forces. On the other hand, CLS claims that law upholds and strengthens existing social and economic arrangements. But these claims, at least on their face, are contradictory.[22] Without some complex theory of how law can be both determinate and indeterminate, determined and undetermined by social and economic forces, the CLS attempt to achieve the status of a liberating critique is very difficult to sustain.

This difficulty can also be traced to the influence of postmodernism within the CLS tradition. The postmodern focus on subjective discretion and resistance to all totalizing theories produces a theory of law that attempts to refute law’s claim of detached neutrality by arguing that law is partisan.[23] But, even without positing a social or economic totality, the accusation of subjective partisanship implies that law favours the interests of some identifiable social group. Absent some complex theory about how law favours those interests, without at the same time being consistent and predictable, and without being determined in some sense by the interest it favours, it is difficult to understand how CLS can claim to achieve a superior understanding of law.

In analyzing the limits of its own understanding of law, CLS runs into two other problems, one epistemological and the other moral. The epistemological problem is this: if there is no logical connection between law and society, or between legal decisions themselves, then CLS’s claim to understand the nature of law must be false. In other words, if law’s indeterminacy is seen in such a way that law has no consistent and predictable effects on society, and law’s ideological function is seen in such a way that society has no consistent and predictable effects on law, then the most one can assert is that law acts autonomously, following its own rules. But, according to the indeterminacy thesis, one can never know precisely what those rules are because they are inconsistent and incoherent. Thus, taking CLS’s claims of legal indeterminacy and legal nondeterminism at face value, one can deduce that CLS has discovered nothing about law but the fact that nothing can be discovered.

This forces CLS into a position of radical scepticism toward all theories that attempt to understand and change society through law.[24] Yet, CLS itself is such a theory.[25] Thus, by positing that what we know about law can never be rationally connected to what we do in society, CLS invalidates its own premise.[26]

CLS writers give two reasons why a position of epistemological scepticism is desirable. Some seek a legal system that merely recognizes the fact of its own indeterminacy.[27] In contrast to the present legal ideology that attempts to hide law’s indeterminacy with myths of neutrality and objectivity, these writers seek to demystify law by showing that it is merely politics by other means. In general, the indeterminacy and ideology theses point out a truth about law that is inherent in both liberalism and the Enlightenment project itself. This position winds up in an insoluble epistemological difficulty, however, because it must accept the indeterminacy of its own findings about law along with that of law itself. From such a limited perspective, CLS cannot hope to do anything more than criticize the form and outcome of legal rules on an ad hoc basis.[28]

The second problem CLS encounters in analyzing the limits of its own understanding about law is a moral one. Put simply, if the relationship between society and law is congenitally nondeterminist, law cannot be seen as right or wrong. In positing the divorce of law from society-where values arise-CLS must also accept the divorce of law from all normative judgments. What makes this problem particularly acute is that it contradicts CLS’s desire for alliance with political and social groups that seek to alter society, in part, through moral arguments.[29] For example, if CLS cannot make any moral judgments about law, it would seem difficult for it to ally itself with social groups victimized by law, such as racial minorities, women, and the poor. Without these alliances, which are necessary for any attempt to oppose the amassed power of liberal elites, CLS is relegated to toothless criticism instead of liberating critique.

However, the strongest indictment against the crits relates to their failure to suggest workable alternatives once the pretensions of the law are unmasked and its structure deconstructed. The kind of indeterminacy that CLS wants to make commonplace threatens the legitimacy of legal orders in ways likely to make the enforcement of legislative majorities less than effective.[30] If legal decisions were encouraged to be the particular outcome of power conflicts at any particular time, law would be enforced so haphazardly that principles as consensually accepted as, for instance, equal protection would be impossible to uphold. If, as Tushnet suggests, judges do, and should, promote their own personal views under the guise of legality, who would seriously abide by such decisions once recognized as widespread?[31] What separate arm of government would bother to enforce them once law is so discredited? What guidelines, rules, institutions, or principles will advance ‘altruism,’ ‘generosity,’ and ‘solidarity,’ and enforce policies like worker protection in such a scheme of law? The modus vivendi compromises that achieve them at one moment could, and very likely would, collapse at the very next. Judicial capriciousness is simply incompatible with a liberal, or social, democratic conception of justice; it would fail to operationalize the very mode of justice that CLS desires.[32] Even though most CLS proponents back down when faced with the implications of their rhetorical thunder, the strong criticisms stick.[33] At a time when social scientists interested in justice realize that the means to attain it are predicated, to a significant extent, on the fine clarification of indeterminacy problems,[34] CLS’s blaring yet, in reality, indolent critique seems somewhat less than fully responsible.

Given the strength of this critique against CLS, the pertinent question becomes whether it is still useful or even necessary. In the final section of this essay, I attempt to answer this most difficult of questions.

In conclusion: Reconstructing CLS

It may be thought that the critique levelled against CLS ultimately consigns it to the backwaters of jurisprudential antiquity. However, the facts are all there which validate the critical theory of law and of its liberal development: the increasing irrationality of the whole; waste and restriction of productivity; the need for aggressive expansion; the constant threat of terrorism; intensified exploitation; dehumanization. And they all point to the historical alternative: the planned utilization of resources for the satisfaction of vital needs with a minimum of toil, the transformation of leisure into free time, the pacification of the struggle for existence.[35]

A very simple but poignant example is the status of the poor economies of the world, euphemistically termed developing nations in polite society. These have been bullied by the rich states into taking on onerous obligations in relation to trade, environment, human rights and other issues in international relations. Yet the rich countries are unwilling to assume the same obligations.[36] Thus although the rules are the same, they are applied in a very subjective manner that protect the interests of the rich and powerful. Similar dynamics are also at play within domestic law. Although citizens are said to enjoy equal protection of the law, it is clear that many constituencies that are poor and weak do not the protection of liberal law. Women, children, the poor and minorities have to keep running to the courts to ensure that their basic rights are respected. Within our shores, simple issues like the ‘hoodie ban’[37] and police youth dispersal powers[38] betray the laws’ pro-rich and pro-powerful agenda. Whilst the above rules appear neutral, they target a constituency that is poor and without power whilst promoting the Rich’s idea of the good society.

Thus despite some profound questions being raised against CLS, the fundamental thesis still holds true. The laws indeterminacy allows it to protect the interests of the powerful at the expense of those that are not. What CLS needs to do is to positively engage with its critique and refrain from retreating into reconstructed liberal positions, or to what Neil McCormick calls ‘a fancy form of the West European welfare-state.’[39] Rather the CLS project must continue its endeavour of exposing the incoherence and inconsistency of law in support of liberalism. Whilst ‘reconstruction after deconstruction’[40] is important the CLS project has never claimed that law and society, once correctly understood, will automatically be transformed. Rather, the theory offers the possibility of keeping watch against liberalism’s sophisticated forms of disguised domination through seemingly neutral laws and policies.

List of references

Books

Bohman, James, New Philosophy of Social Science: Problems of Indeterminacy (Cambridge, MA: MIT Press, 1991).

Bottomore, Tom, The Frankfurt School (London: Routledge, 1989)

Carter, Lief, Contemporary Constitutional Lawmaking (New York: Pergamon Press, 1985).

Caudill, David S, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (Atlantic Highlands, NJ: Humanities Press, 1997).

Geuss, Raymond, The Idea of A Critical Theory: Habermas and the Frankfurt School (Cambridge: Cambridge University Press, 1981).

Kelman, Mark, A Guide to Critical Legal Studies 1 (Cambridge MA: Harvard University Press, 1987)

Kennedy, Duncan, A Critique of Adjudication: fin de siecle (Cambridge MA: Harvard University Press, 1997)

Litowitz, Douglas E, Postmodern Philosophy and Law (Lawrence, KAN: University of Kansas Press, 1997).

Marcuse, H One-Dimensional Man (London: Sphere Books, 1964).

Minda, Gary, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (Cambridge MA: Harvard University Press, 1995)

Tushnet, Mark, Red, White and Blue: A Critical Analysis of Constitutional Law (Cambridge MA: Harvard University Press, 1988)

Unger, Roberto M, Law in Modern Society (New York: The Free Press, 1976)

Unger, Roberto M, The Critical Legal Studies Movement (Cambridge MA: Harvard University Press, 1986)

Articles and book chapters

Boyle, James, Introduction in James Boyle ed., Critical Legal Studies 1 (Dartmouth: New York University Press, 1992).

Boyle, James, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685 (1985)

Caudill, David S., Freud and Critical Legal Studies: Contours of a Radical Socio- Legal Psychoanalysis, 66 Ind. L.J. 651 (1991).

Ewald, William, Unger’s Philosophy: A Critical Legal Study, 97 Yale L. J. 665 (1988).

Fitzpatrick Peter & Hunt, Alan, Introduction in Peter Fitzpatrick & Alan Hunt, eds., Critical Legal Studies 1, (Oxford: Oxford University Press, 1987).

Goodrich, Peter, et al., Introduction, in Peter Goodrich et al. eds., Politics, Postmodernity, and Critical Legal Studies: The Legality of the Contingent 1 (London & New York: Routledge, 1994)

Hutchinson, Allan C. & Monahan, Patrick J., Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199 (1984).

Hutchinson, Allan C., Introduction in Allan C. Hutchinson ed., Critical Legal Studies 1 (Totowa, NJ: Rowman and Littlefield, 1989)

Kairys, David, Introduction The Politics of Law: A Progressive Critique 1, in David Kairys ed., rev. ed., The Politics of Law: A Progressive Critique 1, (New York: Pantheon Books, 1990).

Kennedy, Duncan, Legal Formality, 2 J. Legal Stud. 351 (1973)

Kress, Ken, Legal Indeterminacy, 77 Cal. L. Rev. 283, 323-28 (1989).

McCormick, Neil, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, (1990).

Peller, Gary, The Metaphysics of American Law (Part 1 of 2), 73 Cal. L. Rev. 1151, (1985).

Tushnet, Mark The Dilemmas of Liberal Constitutionalism, 42 Ohio St. L.J. 413 (1981).

Web resources

‘Dispersal of groups’ http://www.together.gov.uk/category.asp?c=185 (accessed 05.06.07) Neil McCormick, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, 539 (1990).

‘Hoodie ban, is it fair?’ http://www.thenewspaper.org.uk/home/pg000324.php (accessed 05.04.06)


Footnotes

[1] Mark Kelman, A Guide to Critical Legal Studies 1 (1987); Allan C. Hutchinson, Introduction to Critical Legal Studies 1, 2 (Allan C. Hutchinson ed., 1989)

[2] See Kelman, id., at 1; Peter Fitzpatrick & Alan Hunt, Introduction to Critical Legal Studies 1, 1 (Peter Fitzpatrick & Alan Hunt, eds., 1987).

[3] See Kelman, supra note 1, at 1

[4] Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End 106 (1995); Hutchinson, supra note 1, at 3.

[5] Minda, id.

[6] Peter Goodrich et al., Introduction to Politics, Postmodernity, and Critical Legal Studies: The Legality of the Contingent 1, 12 (Peter Goodrich et al. eds., 1994); Kelman, supra note 1, at 7-8.

[7] Minda, supra note 4, at 25-33, 106.

[8] See Minda, supra note 4, at 106; see also Gary Peller, The Metaphysics of American Law (Part 1 of 2), 73 Cal. L. Rev. 1151, 1152 (1985).

[9] Peter Goodrich et al., Introduction to Politics, Postmodernity, and Critical Legal Studies: The Legality of the Contingent 1, 9-12 (Peter Goodrich et al. eds., 1994) .

[10] James Boyle, Introduction to Critical Legal Studies at i, xiii (James Boyle ed., 1992).

[11] David S. Caudill, Freud and Critical Legal Studies: Contours of a Radical Socio- Legal Psychoanalysis, 66 Ind. L.J. 651 (1991).

[12] See generally Tom Bottomore, The Frankfurt School (Routledge 1989); Raymond Geuss, The Idea of A Critical Theory: Habermas and the Frankfurt School (1981).

[13] Goodrich et al., supra note 9 at 12.

[14] See, e.g., David S. Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (1997).

[15] Minda, supra note 4, at 116-27.

[16] See Duncan Kennedy, A Critique of Adjudication: fin de siecle (1997); Roberto M. Unger, Law in Modern Society (1976); Roberto M. Unger, The Critical Legal Studies Movement (1986); Duncan Kennedy, Legal Formality, 2 J. Legal Stud. 351 (1973).

[17] See Kennedy, id.; Roberto M. Unger, Law in Modern Society (1976).

[18] Kennedy, id ; Unger, supra note 16; James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 685 (1985); Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (1988).

[19] See Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 Ohio St. L.J. 413 (1981).

[20] Kennedy, supra note 16, at 1-5, 115

[21] Id. at 5.

[22] Ken Kress, Legal Indeterminacy, 77 Cal. L. Rev. 283, 323-28 (1989).

[23] Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, 216-235 (1984).

[24] Minda, supra note 4, at 224-25 (describing postmodern CLS’s scepticism toward modern attempts to understand and bring order to society through the construction of meta-theories).

[25] See, e.g., Goodrich et al., supra note 6, at 12-14 (summarizing the third historical phase of CLS as an adaptation of political goals to more modest institutional change and alliance with a diverse group of disaffected minorities).

[26] See Douglas E. Litowitz, Postmodern Philosophy and Law 12, 170 (1997).

[27] Hutchinson, supra note 1, at 2-3.

[28] David Kairys, Introduction to The Politics of Law: A Progressive Critique 1, 11-14-15 (David Kairys ed., rev. ed. 1990).

[29] Goodrich et al., supra note 6, at 13; Hutchinson, supra note 1, at 2.

[30] Neil McCormick, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, (1990).

[31] Kennedy, supra note 16, at 13.

[32] See Lief Carter, Contemporary Constitutional Lawmaking (1985).

[33] See William Ewald, Unger’s Philosophy: A Critical Legal Study, 97 Yale L. J. 665 (1988).

[34] See James Bohman, New Philosophy of Social Science: Problems of Indeterminacy (1991).

[35] Marcuse, One-Dimensional Man 252-253 (1964).

[36] Just a fortnight ago, the United States chided Nigeria for letting the former president of Liberia escape from international criminal justice when the American state is not interested in having its nationals tried by the International Criminal Court.

[37] Hoodie ban, is it fair? http://www.thenewspaper.org.uk/home/pg000324.php (accessed 05.04.06)

[38] Dispersal of groups http://www.together.gov.uk/category.asp?c=185 (accessed 05.06.07)

[39] Neil McCormick, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, 539 (1990).

[40] Id.


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