Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.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. CLS views laws as devised to maintain the status quo of society and thereby codify its biases against marginalized groups."Critical Legal Theory", Cornell Law School> Retrieved 2017-08-10.
Despite wide variations in the opinions of critical legal scholars around the world, there is a consensus regarding the key goals of critical legal studies: to demonstrate the ambiguity and possible preferential outcomes of supposedly impartial and rigid legal doctrines; to publicize historical, social, economic and psychological results of legal decisions; to demystify legal analysis and legal culture in order to impose transparency on legal processes so that they earn the general support of socially responsible citizens. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.
Influence 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.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." 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."Duncan Kennedy and Karl E. Klare, "A Bibliography of Critical Legal Studies," Yale Law Journal, Vol. 94 (1984): 461.
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 "fragmentary and imperfect expressions of an imaginative scheme of human coexistence rather than just as provisional truce lines in a brutal and amoral conflict."Unger, Roberto Mangabeira. Passion: An Essay on Personality. New York: Free Press, 1984, p. 47 Such members were seen as the most powerful voices and the only way forward for the movement.Hutchinson, Allan C, and Patrick J Monahan. 1984. "The Rights Stuff: Roberto Unger and Beyond". Texas Law Review 62: 1478Bartholomew, Amy, and Alan Hunt. 1990. "What's Wrong with Rights". Law and Inequality: A Journal of Theory and Practice 9: 1. 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.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.
History 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 "crits" include Duncan Kennedy, Roberto Unger, Morton Horwitz, Mark Kelman, and Catharine MacKinnon.
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.
In France, where the legal tradition had been closely guarded by law faculties and watched over by Napoleonic institutions such as the Court of Cassation, the Conseil d'Etat, and the Ecole Nationale de la Magistrature, famed sociologist Pierre Bourdieu caused an uproar when he released his "La Force de la loi, élements pour une sociologie du champ juridique" in 1986 - translated as "The Force of Law: Toward a Sociology of the Juridical Field", in the Hastings Law Journal (1987). It heralded the beginning of continental Critical Legal Studies.
Relation 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 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",Leiter, Brian, American Legal Realism. U of Texas Law, Public Law Research Paper No. 42. Available at SSRN. DOI, 10.2139/ssrn.339562. 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."
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 organized force only until the late 1980s. Its life as a movement lasted for barely more than a decade."Unger 2015, p. 24.
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."Gerard J. Clark, "A Conversation with Duncan Kennedy," The Advocate: The Suffolk University Law School Journal, Vol. 24, No. 2 (1994): 56-61. See . 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.Douzinas, Costas and Perrin, Colin. Critical Legal Theory, London: Routledge, 2011. See .
Prominent participants in the CLS movement include Derrick Bell, Drucilla Cornell, Mary Joe Frug, Mark Kelman, Alan Hunt, Catharine MacKinnon, Paul O'Connell, 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.
Intellectual and political context
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".Unger 2015, p. 5. A close descendant of nineteenth-century doctrinal formalism, which sought through legal analysis to identify the "inbuilt legal content of a ... free society",Unger 2015, p. 8. 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.Unger 2015, p. 6. 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".Unger 2015, p. 7.
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.Unger 2015, p. 11f.