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Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.

Contents

History

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced all the way back to American Legal Realism, as a distinct scholarly movement the CLS fully emerged only by the late 1970s. Many first-wave CLS scholars entered legal education, having been profoundly influenced by the twin experiences of the civil rights movement and the anti-war movements of the late 1960s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of the modern Western society. Drawing on the works of the Frankfurt school and French poststructuralism, the "crits" sought to demystify the numerous myths at the heart of the mainstream legal practice.

As a movement, the CLS peaked in the United States sometime in the first half of the 1980s. By the end of the decade, its institutional influence, however, started to fade rapidly.[citation needed] Today, the American CLS continues mainly as a school of thought, having spawned several successor networks and movements.

The British critical legal studies movement, having started roughly at the same time as its American counterpart, still continues vibrantly. It has centered around the annual Critical Legal Conference and has not sought the institutional recognition that its American counterparts focused upon. Nevertheless, there are a variety of clusters of critical theorists at the major British law schools such as Birkbeck, University of London, University of Kent, Keele University, the University of Glasgow, among others. The Critical Legal Conference has continued to draw new scholars from around the world, with constantly high attendance, and distinct interdisciplinary thought. The journal Law & Critique is at the forefront of publishing critical legal theory in the UK.

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 statutes and case law) 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).
  • 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).

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.

Prominent participants in the CLS movement include Drucilla Cornell, Catharine MacKinnon, Duncan Kennedy, David W. Kennedy, Martti Koskenniemi, Karl Klare, Costas Douzinas, Mark Kelman, Gary Peller, Mark Tushnet, Peter Fitzpatrick, Morton Horwitz, Jack Balkin, Peter Gabel and Roberto Unger.

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 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

While the influence and prominence of CLS in the American legal academy seem to have waned in recent years, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory and ecofeminism 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 alternative first year curriculum, for example. A similar, CLS influenced paedagogy, is also in use at other American Law Schools.

In the UK, the movement continues with various research centers and institutions offering CLS based taught and research courses in a variety of legal fields including human rights, jurisprudence and criminal justice.

In New Zealand, the University of Otago 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, Wellington. 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.

See also

Further reading

  • Mark Kelman, A Guide to Critical Legal Studies, Harvard University Press, 1987
  • Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
  • Roberto Mangabeira Unger, 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, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York University Press 2004
  • Duncan Kennedy, A Critique of Adjudication [fin de siecle], Harvard University Press, 1997.
  • David W. Kennedy and William Fisher, 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, "On the Critical Legal Studies Movement" 30 American Journal of Jurisprudence 1985
  • Scott Fruehwald, "Postmodern Legal Thought and Cognitive Science," 23 Ga. St. U.L. Rev. 375 (2006).

External links

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