Despite wide variation in the opinions of critical legal scholars around the world, there is general consensus regarding the key goals of critical legal studies:[3]
The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.[4]
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",[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]
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 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, Elements 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",[12] American legal realism sent a shock through American legal scholarship by undermining the formalist tenets that were long considered a bedrock of jurisprudence.[citation needed]
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]
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."[13]
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."[14] 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.[14]
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.[5]
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.[15]
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.
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 intertwined. 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).
Finally, CLS questions law's central assumptions, one of which is the Kantian notion of the autonomous individual.[24] The law often treats individual petitioners as having full agency vis-à-vis their opponents. They are able to make decisions based on reason that is detached from political, social, or economic constraints. CLS holds that individuals are tied to their communities, socio-economic class, gender, race, and other conditions of life such that they cease to be autonomous actors in the Kantian mode. Rather, their circumstances determine and therefore limit the choices presented to them. People are not "free"; they are instead determined in large part by social and political structures that surround them.
In the American legal academy its influence and prominence seems to have waned in recent years. However, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as fem-crit, 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, (Termed "Curriculum B", known as "Section 3" within the school). In the UK both Kent and Birkbeck have sought to draw critical legal insights into the legal curriculum, including a critical legal theory based LLM at Birkbeck's School of Law. Various research centers and institutions offer CLS-based taught and research courses in a variety of legal fields including human rights, jurisprudence, constitutional theory and criminal justice.
Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.
Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science, that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world.
Duncan Kennedy is an American legal scholar and held the Carter Professorship of General Jurisprudence at Harvard Law School until 2015. Now emeritus, he is best known as one of the founders of the critical legal studies movement.
Roberto Mangabeira Unger is a Brazilian philosopher, jurist and politician. His work is in the tradition of classical social theory and pragmatism, and is developed across many fields including legal theory, philosophy and religion, social and political theory, progressive alternatives, and economics. In natural philosophy he is known for The Singular Universe and the Reality of Time. In social theory he is known for Politics: A Work in Constructive Social Theory. In legal theory he was associated with the Critical Legal Studies movement, which helped disrupt the methodological consensus in American law schools. His political activity helped the transition to democracy in Brazil in the aftermath of the military regime, and culminated with his appointment as Brazil's Minister of Strategic Affairs in 2007 and again in 2015. His work is seen to offer a vision of humanity and a program to empower individuals and change institutions.
Critical race theory (CRT) is an interdisciplinary academic field focused on the relationships between social conceptions of race and ethnicity, social and political laws, and media. CRT also considers racism to be systemic in various laws and rules, and not only based on individuals' prejudices. The word critical in the name is an academic reference to critical theory rather than criticizing or blaming individuals.
Mary Joe Frug was a professor at New England Law Boston, and a leading feminist legal scholar. She is considered a forerunner of legal postmodern feminist theory. Much of her work was collected in the posthumously-published book, Postmodern Legal Feminism. She is the author of the casebook Women and the Law.
Formative contexts are the institutional and imaginative arrangements that shape a society's conflicts and resolutions. They are the structures that limit both the practice and the imaginative possibilities in a socio-political order, and in doing so shape the routines of conflict over social, political and economic resources that govern access to labor, loyalty, and social station, e.g. government power, economic capital, technological expertise, etc. In a formative context, the institutions structure conflict over government power and capital allocation, whereas the imaginative framework shapes the preconceptions about possible forms of human interaction. Through this, a formative context further creates and sustains a set of roles and ranks, which mold conflict over the mastery of resources and the shaping of the ideas of social possibilities, identities and interests. The formative context of the Western democracies, for example, include the organization of production through managers and laborers, a set of laws administering capital, a state in relation to the citizen, and a social division of labor.
Costas Douzinas is a professor of law, a founder of the Birkbeck School of Law and the Department of Law of the University of Cyprus, the founding director of the Birkbeck Institute for the Humanities at Birkbeck, University of London, the President of the Nikos Poulantzas Institute and a former politician.
Articles in social and political philosophy include:
The Critical Legal Conference (CLC) is an annual critical legal theory conference which gathers a community of critical legal theoreticians and activists. Along with the Conference on Critical Legal Studies in America, and Critique du Droit in France it contributed to the formation of critical legal theory as a movement and field. The conference is based in the UK but it has also been held in India, Finland and Ireland. It is associated with the critical legal studies (CLS) movement and loosely associated with the journal Law & Critique.
This is an index of articles in jurisprudence.
Passion: An Essay on Personality is a philosophical inquiry into human nature by Brazilian philosopher and politician Roberto Mangabeira Unger. The book explores the individual and his relation to society, asking how one comes to an understanding of self and others. Unger here sees the root human predicament as the need to establish oneself as a unique individual in the world but at the same time to find commonality and solidarity with others. This exploration is grounded in what Unger calls a modernist image of the human being as one who lives in context but is not bound by context.
False necessity, or anti-necessitarian social theory, is a contemporary social theory that argues for the plasticity of social organizations and their potential to be shaped in new ways. The theory rejects the assumption that laws of change govern the history of human societies and limit human freedom. It is a critique of "necessitarian" thought in conventional social theories which hold that parts of the social order are necessary or the result of the natural flow of history. The theory rejects the idea that human societies must be organized in a certain way and that human activity will adhere to certain forms.
Empowered democracy is a form of social-democratic arrangements developed by Brazilian philosopher and politician Roberto Mangabeira Unger, who first published his theories in 1987. Theorized in response to the repressiveness and rigidity of contemporary liberal democratic society, the theory of empowered democracy envisions a more open and more plastic set of social institutions through which individuals and groups can interact, propose change, and effectively empower themselves to transform social, economic, and political structures. The key strategy is to combine freedom of commerce and governance at the local level with the ability of political parties at the central level to promote radical social experiments that would bring about decisive change in social and political institutions.
Knowledge and Politics is a 1975 book by philosopher and politician Roberto Mangabeira Unger. In it, Unger criticizes classical liberal doctrine, which originated with European social theorists in the mid-17th century and continues to exercise a tight grip over contemporary thought, as an untenable system of ideas, resulting in contradictions in solving the problems that liberal doctrine itself identifies as fundamental to human experience. Liberal doctrine, according to Unger, is an ideological prison-house that condemns people living under its spell to lives of resignation and disintegration. In its place, Unger proposes an alternative to liberal doctrine that he calls the "theory of organic groups," elements of which he finds emergent in partial form in the welfare-corporate state and the socialist state. The theory of organic groups, Unger contends, offers a way to overcome the divisions in human experience that make liberalism fatally flawed. The theory of organic groups shows how to revise society so that all people can live in a way that is more hospitable to the flourishing of human nature as it is developing in history, particularly in allowing people to integrate their private and social natures, achieving a wholeness in life that has previously been limited to the experience of a small elite of geniuses and visionaries.
The Critical Legal Studies Movement is a book by the philosopher and politician Roberto Mangabeira Unger. First published in 1983 as an article in the Harvard Law Review, published in book form in 1986, and reissued with a new introduction in 2015, The Critical Legal Studies Movement is a principal document of the American critical legal studies movement that supplied the book with its title. In the book, Unger argues that law and legal thought offers unrealized possibilities for the self-construction of a more democratic society, and that many lawyers and legal theorists have uncritically surrendered to constraints that undermine their ability to make use of law's transformative potential. Unger explains how the critical legal studies movement has refined and reformulated the major themes of leftist and progressive legal theorists, namely the critique of formalism and objectivism in legal doctrine, and the purely instrumental use of legal practice and doctrine to advance leftist aims, and in doing so, has identified elements of a constructive program for the reconstruction of society.
What Should Legal Analysis Become? is a book by philosopher and politician Roberto Mangabeira Unger. First published in 1996, the book germinated from lectures Unger gave at Yale Law School, Columbia Law School, and the London School of Economics. In the book, Unger argues that in order to transform society to be more radically democratic, it is necessary to penetrate the specialized professions so that we can talk about, and imagine, institutions effectively. Unger focuses on the legal profession in this book, setting forth a vision of law as "institutional imagination." He presents a program for changing the nature of the legal profession so that less power is vested in legal professionals and institutions, and legal analysis is reoriented to be more egalitarian and advance more effectively the democratic project.
Politics: A Work in Constructive Social Theory is a 1987 book by Brazilian philosopher and politician Roberto Mangabeira Unger. In the book, Unger sets out a theory of society as artifact, attempting to complete what he describes as an unfinished revolution, begun by classic social theories such as Marxism, against the naturalistic premise in the understanding of human life and society. Politics was published in three volumes: False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy, the longest volume, is an explanatory and programmatic argument of how society might be transformed to be more in keeping with the context-smashing potential of the human imagination; Social Theory: Its Situation and Its Task, is a "critical introduction" that delves into issues of social science underpinning Unger's project; and Plasticity Into Power: Comparative-Historical Studies on the Institutional Conditions of Economic and Military Success, is a collection of three historical essays illuminating the theoretical points Unger advanced in the first two volumes. In 1997, an abridged, one-volume edition of Politics was issued as Politics, The Central Texts, edited by Zhiyuan Cui.
Democratic experimentalism is an interpretation of democracy that seeks to combine certain democratic concepts with a practice of thought and action. It denotes varied pragmatic perspectives in legal theory, political science, political theory, and sociology. It is considered a new paradigm of institutional thinking about democracy and law that conceives different roles for legal actors.
References
1 2 3 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.
1 2 3 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.[verification needed] 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."
1 2 Duncan Kennedy and Karl E. Klare, "A Bibliography of Critical Legal Studies," Yale Law Journal, Vol. 94 (1984): 461.
↑ Unger, Roberto Mangabeira. Passion: An Essay on Personality. New York: Free Press, 1984, p. 47
↑ Hutchinson, Allan C, and Patrick J Monahan. 1984. "The Rights Stuff: Roberto Unger and Beyond". Texas Law Review 62: 1478
↑ Bartholomew, Amy, and Alan Hunt. 1990. "What's Wrong with Rights". Law and Inequality: A Journal of Theory and Practice 9: 1.
↑ 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.
↑ Leiter, Brian, American Legal Realism. U of Texas Law, Public Law Research Paper No. 42. Available at SSRN. DOI, 10.2139/ssrn.339562.
1 2 Gerard J. Clark, "A Conversation with Duncan Kennedy," The Advocate: The Suffolk University Law School Journal, Vol. 24, No. 2 (1994): 56-61. See .
↑ Douzinas, Costas and Perrin, Colin. Critical Legal Theory, London: Routledge, 2011. See .
↑ Reinhold Zippelius, Die experimentierende Methode im Recht, Akademie Mainz, 1991, ISBN3-515-05901-6; Rechtsphilosophie, 6. Aufl. 2011, § 11 III, ISBN978-3-406-61191-9
↑ Schlag, Pierre (1990). "Le Hors de Texte--C'est Moi". Cardozo Law Review. 10: 1631.
David W. Kennedy and William Fisher, eds. The Canon of American Legal Thought, Princeton, NJ: Princeton University Press, 2006
Costas Douzinas & Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York, NY: New York University Press, 2004
Le Roux and Van Marle, "Critical Legal Studies" in Roeder (ed), Jurisprudence, 2004[full citation needed]
Janet E. Halley (ed.), Wendy Brown (ed.), Left Legalism/Left Critique-P, Durham, NC: Duke University Press 2003
Richard W. Bauman, Ideology and community in the first wave of critical legal studies, Toronto, CA: University of Toronto Press, 2002
Janet E. Halley "Revised version entitled "Like-Race Arguments"" in What's Left of Theory?, Abingdon, UK: Routledge, 2001
↑ Frug, Mary Joe (March 1992). "A Postmodern Feminist Manifesto (An Unfinished Draft)". Harvard Law Review. 105 (5): 1045–1075. doi:10.2307/1341520. JSTOR1341520.
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