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Critical Legal Realism

Critical Legal Realism

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Published by Leiya Lansang

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Published by: Leiya Lansang on Mar 12, 2009
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A.Introduction
The Critical Legal Studies Movement was formally organized at the FirstConference on Critical Legal Studies held in May of 1977 at the University of Wisconsin.
1
This jurisprudential movement has won adherents in France, in Germany, inCanada, in England where the First Critical Legal Conference was held there in 1981.
2 
In 1988, the movement was introduced in the Philippines as part of the course in LegalTheory in the College of Law of the University of the Philippines.
3
 For the critical legalrealists, the task of a good law school is to provide a legal education which frees theminds of professors and students alike from the grips of the dominant liberal paradigmand to delegitimize the improper and illicit tie between law and politics.
4
B.
Critical legal Scholarship Scorned
The leading proponent of the Critical Legal Studies Movement is Professor Roberto Mangabeira Unger of Harvard University Law School. The critical legal realistsconsider this jurisprudential movement as particularly close to the modern school of legal realism.However, some critics question the legitimacy of this movement. Richard A.Posner 
i
of the United States Court of Appeals and Senior Lecturer at the University of Chicago Law School contends that the critical legal scholars are the “illegitimatedescendants of the modern legal realist school of jurisprudence.”
5
G. Edward White,Professor of Law at the University of Virginia, claims that the kinship claimed by thecritical legal scholars to the modern school of legal realism “is a grasp at legitimacy.”
6 
Cornel West, Professor of Religion at Princeton University, brands the critical legalscholars as “the academic left subculture.” While Professor West finds many of the
1
Pascual,
Legal Philosophy by Pascual,
346
2
McGill University Law Journal, 189; 18 Ottawa University Law Review, 89.
3
In some law schools, the name of the course is
 Jurisprudence.
4
Unger, R.M.,
The Critical Legal Studies Movement,
96 Harvard Law Review, 667.
5
Posner, R., , 86 Michigan Law Review, 827, 829.
6
White, G.E.,
The Inevitability of CriticalLegal Studies,
36 Stanford Law Review, 649, 650.
1
 
criticisms leveled by critical legal scholars against the tradition of the dominant liberalparadigm persuasive, he admits that he has “not fully understood their animosity andhostility toward liberalism displayed in much of their writings.”
C.
Polemics v. Critical Legal Realism
The Critical Legal Realism is a critique directed against many aspects of thedominant liberal paradigm. Included therein are the “ways in which the language of impartiality, objective due process, and value-free procedures hide and conceal partisanoperations of power and elite forms of social victimization.”
7
The scholarship of the Critical Legal Studies Movement has naturally incurred thehostility and ire of the dominant liberal paradigm.
8
Ronald Dworkin
 dismisses thethrusts of critical legal scholarship as “spectacular and even embarrassing failures.”
9 
Some proponents of the dominant liberal paradigm have branded critical legal realismas another form of radical socialism,
no different from the critical socialism of KarlMarx
(1818-1883). As stated by Karl Marx, “the bourgeois concept of law is but the willof the dominant elite erected into legislation, a will whose essential character anddirection are determined by material and economic conditions of the existence of theclass.”
A closer analysis of the critical legal realism of Roberto Mangabeira Unger andthe critical social realism of Karl Marx will show that their common denominator is their disenchantment with 1) the elitist tendencies of the dominant liberal paradigm, 2) theconcealed intentions and judgments behind the legal concepts and ideas which thedominant liberal paradigm has managed to include, directly or indirectly, into the legal
7
West, C.
Brendan Brown Lectures: Reassessing the Critical Legal Studies Movement,
34Loyola University Law Review,
265, 269-270.
8
Ewald, W., Unger’s Philosophy: A Critical Legal Study, 97 Yale Law Journal, 665; Carrington,P., Of Law and the River, 34 Journal of Legal Education, 227.
9
DWORKIN, R., LAW’S EMPIRE, 274. Harvard university Press, Cambridge.
10
Ewald, W.,
supra.,
733, 741-753
11
THE COMMUNIST MANIFESTO, Part II, 47. Possony, S.T., Editors, Chicago Press Co.,Chicago; MARXISM AND LAW, Bierne, B. and Quinney, R., Editors, Chicago Press Co.,Chicago.
2
 
order, and 3) the belief that the system of distribution of the material and social goods is just and in the best interest of the people, and, therefore, inviolable.
However, the difference between the two theories is that the critical social realismof Marx is leftist oriented while the critical legal realism of Unger is not. Unger statedthat his, “social theory is an alternative to Marxism”
not a reaffirmation but a staunchdenial of the bourgeois plan of social division and hierarchy.
D.Deconstruction of Dominant Legal Paradigm
The term “deconstruction” is used by the Critical Legal Studies Movement as amethod or technique of: 1) stinging inquiry and analysis of the tendencies, beliefs,attitudes, and interpretations of the dominant liberal paradigm, and 2) internalreformation and development of the ideas and concepts of the dominant liberalparadigm by the presentation of the rationale or justification for the censure and theoffer of alternative solutions.
v
1.
Trashing the Tradition of the Dominant Legal Paradigm
The Critical Legal Realists have discovered that in the liberal legal order, there isa free rather than a just society characterized by widening divisions and sharpeninghierarchies and a jealous special-interest economy marked by exploitative,individualistic, and possessive propensities to control the social, economic, political, andlegal processes of society through the subtle use of power and resources.
Three undesirable situations in the contemporary liberal order were identified bythe critical legal realists. These are: 1) the state has become the organization of thedominant liberal class; 2) the law has become the rationalizing instrument of alienation
12
Pascual,
Legal Philosophy by Pascual,
350
13
UNGER, R., FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OFRADICAL DEMOCRACY, 1.
14
Unger, R.,
The Critical Legal Studies Movement,
96 Harvard Law Review, 565, 666.
15
 
Ibid., 112-113.
3

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