Critical Legal Studies

A. Do the segments of CLS share several important ideas & approaches?

B. Do they, together, amount to a new viable approach to legal scholarship?

Critical legal studies (CLS) is a theory which states that the law is necessarily intertwined with
social issues, particularly stating that the law has inherent social biases. Proponents of CLS believe that
the law supports the interests of those who create the law.

The Theory of Critical Legal Studies: Critical legal studies is the first movement in legal theory and legal
scholarship in the United States to have espoused a committed Left political stance and perspective.? A left-wing
academic trend of considerable breadth in the field of law is in itself worthy of attention, but one which has
assumed an organized form and has already made a marked impact loudly demands careful scrutiny. The
emergence and growth of the Conference on Critical Legal Studies (CCLS) is to be warmly welcomed. It raises
the prospect of generating an impact on legal scholarship that outreaches the impact of Realism in the roos and
1930s. It also has the potential of forcing itself upon the calm and untroubled world of legal scholarship in such a
way as to require the latter to engage in a thorough-going debate about the nature and direction of legal
scholarship and education.In the 1960s, many of the founding members of CLS participated in social activism
connected to the civil rights movement and the vietnam war. Many future CLS scholars entered law school in
those years or shortly thereafter, and they quickly became unhappy with what they saw as a lack of
philosophical depth and rigor in the teaching and theory of law. Roberto Mangabeira Unger, a leading CLS
theorist, has described the law faculty of those days as "a priesthood that had lost their faith and kept their jobs."
These young students began to apply the ideas, theories, and philosophies of postmodernity (intellectual
movements of the last half of the twentieth century) to the study of law, borrowing from fields as diverse as
social theory, political philosophy, economics, and literary theory. Since then, CLS has steadily grown in
influence. By 1989, over 700 articles and books had been published expounding the ideas of this movement.
Besides Unger, noted CLS theorists include Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and
catharine a. mackinnon.

Critical legal studies (CLS) is a sometimes revolutionary movement that challenges and seeks to
overturn accepted norms and standards in legal theory and practice. CLS seeks to fundamentally alter
jurisprudence, exposing it as not a rational system of accumulated wisdom but an ideology that supports and
makes possible an unjust political system. CLS scholars attempt to debunk the law's pretensions to determinacy,
neutrality, and objectivity. The law, in CLS scholarship, is a tool used by the establishment to maintain its power
and domination over an unequal status quo. Openly a movement of leftist politics, CLS seeks to subvert the
philosophical and political authority of what it sees as an unjust social system. CLS advances a theoretical and
practical project of reconstruction of the law and of society itself. CLS is also a membership organization that
seeks to advance its own cause and that of its members.

Cornell Law School: Critical legal studies (CLS) is a theory which states that the law is necessarily
intertwined with social issues, particularly stating that the law has inherent social biases. Proponents of CLS
believe that the law supports the interests of those who create the law. As such, CLS states that the law supports a
power dynamic which favors the historically privileged and disadvantages the historically underprivileged. CLS
finds that the wealthy and the powerful use the law as an instrument for oppression to maintain their place in
hierarchy. Many in the CLS movement want to overturn the hierarchical structures of modern society and they
focus on the law as a tool in achieving this goal.

“Although CLS has been largely contained within the United States, it was influenced to a great extent by
European philosophers, such as Karl Marx, Max Weber, Max Horkheimer, Antonio Gramsci, and Michel Foucault.
CLS has borrowed heavily from Legal Realism, the school of legal thought that flourished in the 1920s and 1930s.
Like CLS scholars, legal realists rebelled against accepted legal theories of the day and urged the legal field to pay
more attention to the social context of the law”.

Subgroups:CLS includes several subgroups with fundamentally different, even contradictory, views.
Feminist legal theory examines the role of gender in the law. Critical race theory (CRT) examines the role of race
in the law. Postmodernism is a critique of the law influenced by developments in literary theory, and it
emphasizes political economy and the economic context of legal decisions and issues.

Although the CLS 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 reductionism 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 (preference for strict rules) and equitable flexibility ( preference for broad
standards).
Finally, CLS questions law's central assumptions, one of which is the Kantian notion of the autonomous
individual. 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.
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.

Feminist Legal Criticism

Catharine A. MacKinnon is a leading figure in radical feminist criticism (sometimes called
fem-crit).
Throughout her career, MacKinnon has attempted to show the ways in which the established legal system reflects
the sexism of the society that created it. The law, according to MacKinnon, is only one extension of a
male-dominated society that is characterized by inequality between the genders and by the sexual objectification
of women. As the product of a male-oriented view of the world and a male-dominated state, the law
systematically victimizes and discriminates against women. "The law," MacKinnon wrote, "sees and treats women
the way men see and treat women." It ensures male control over female sexuality. The feminist project to counter
this negative aspect of the legal tradition, MacKinnon wrote, is "to uncover and claim as valid the experience of
women, the major content of which is the devalidation of women's experience."
One topic that MacKinnon has examined in detail is the legal doctrine regarding rape. Citing the
difficulty that women have proving legally that they have been raped, MacKinnon interprets rape doctrine as the
product of male ideology. She argues that rape and the laws surrounding it, which are often ineffective in
securing convictions of male rapists, are used by men to keep women in a position of submission and inferiority.
The law's standards of objectivity and neutrality, according to MacKinnon, actually hide a male bias that makes it
very difficult for a woman to win a rape case in the legal system. The state thus perpetuates rape in a way that
promotes the dominance of men.

Critical Race Theory (CRT)

CRT began in the mid-1970s when many intellectuals perceived that the civil rights movement of the
1960s had ended and that in fact many of its gains were being turned back. As a result, they began to develop new
theories and concepts that would allow them to understand the causes and implications of these new
developments. Like CLS, CRT gathers disparate scholars and theorists under a common heading. However, CRT
is a less formally organized school of thought than CLS. Leading critical race theorists include Derrick Albert bell
jr., Alan D. Freeman, and Patricia J. Williams. The first annotated bibliography of CRT writings, published in 1993,
listed over 200 books and articles.
Critical race theorists share a number of themes. Like CLS, CRT finds major faults in liberalism and particular
features of liberal jurisprudence that bear on race, including affirmative action, neutrality, and "color blindness."
Many CRT writers, for example, dispute that the Constitution is or ever can be "color-blind." They also assert that
supposed breakthroughs in the area of racial rights by the Supreme Court serve only to validate an unjust
political system by creating the illusion that racial inequalities are being ended when in fact they are not. CRT
scholars generally seek a greater understanding of the social origins of race and racism, and, like CLS theorists,
they employ social theory and science in that cause. Many in the CRT movement examine how the structure of
legal thought or culture influences its content, usually in a way that maintains the status quo. Some in the
movement make a case for cultural separatism or nationalism for people of color, arguing that preserving the
diversity and separateness of different racial groups will benefit everyone. CRT also attempts to understand the
cyclical nature of U.S. race relations—characterized by periods of racial progress and relative harmony followed
by periods of racial retrenchment and discord. CRT writers also make frequent use of historical and social theories
regarding colonialism and slavery.

CLS and Its Alternative View of the Law and Society

Consistent with their leftist heritage, CLS theorists call for radical changes in the law and in the
structure of society itself. Unger has called this radical project "institutional reconstruction." Many in the CLS
movement want to overturn the hierarchical structures of domination in modern society, and many of them have
focused on the law as a tool in achieving this goal. The law, CLS claims, has played a key role in maintaining that
hierarchy by impeding efforts at social change. In general, CLS argues that there is no natural or inevitable form
of social organization, and there is by no means agreement between CLS scholars as to what form society and its
laws should take. CLS thus avoids the kind of blueprint for social revolution that radical leftist movements such
as Marxism-Leninism supplied in the past. Instead, leading CLS devotees envision a potential emancipation of
individuals from the structures of power that restrict and victimize them. For these reasons, the political
philosophy of many in the CLS movement has been described as utopian, a characterization that many do not
completely deny.
Such innovations would require major changes in the law, particularly as regards an understanding of rights,
including property rights. In his call for a radical restructuring of rights, Unger proposes creating four categories:
immunity rights, which protect the individual from the state, organizations, and other individuals; destabilization
rights, which make it possible to dismantle institutions and practices that create social hierarchy and division;
market rights, which constitute claims to social capital and replace conventional property rights; and solidarity
rights, which are "the legal entitlements of communal life." Despite his criticism of liberalism, Unger calls his
philosophy "super liberalism":
“It pushes the liberal premises about state and society, about freedom from dependence and governance of social relations by
the will, to the point at which they merge into a larger ambition: the building of a social world less alien to a self that can
always violate the generative rules of its own mental or social constructs and put other rules and other constructs in their
place. Unger therefore seeks to reform the law and society in such a way as to liberate and empower every individual”.

After some early battles to gain acceptance in the 1970s and 1980s, it earned an accepted position in law
schools across the United States. However, some legal scholars, both inside and outside the CLS movement, argue
that as many of the original CLS adherents age and reach positions of power in established law schools, their
original radical impetus will fade and become moderate. Others argue that the call for justice and equality will
always require an untempered radicalism that will be fueled by CLS. Whatever the outcome, CLS has
permanently changed the landscape of legal theory,Although this project is facing many criticisms, it has many
positive points. And it will be very useful in the future.

Boyle, James. 1992. Critical Legal Studies. New York: New York Univ. Press.

Delgado, Richard. 1993. "Critical Race Theory: An Annotated Bibliography." Virginia Law Review 79.

Hutchinson, Allan C., ed. 1989. Critical Legal Studies. Totowa, N.J.: Rowman & Littlefield.

——. 1987. Critical Legal Studies. Lanham, Md.: Rowman & Littlefield.

Unger, Roberto M. 1986. The Critical Legal Studies Movement. Cambridge, Mass.: Harvard Univ. Press.

Oetken, J. Paul. 1991. "Form and Substance in Critical Legal Studies." Yale Law Journal 100.

Tushnet, Mark. 1991. "Critical Legal Studies: A Political History." Yale Law Journal 100.

Unger, Roberto M. 1986. The Critical Legal Studies Movement. Cambridge, Mass.: Harvard Univ. Press.

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