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T hematic
Critical Legal Studies
By Norrie, Alan

DOI: 10.4324/9780415249126-T 003-1

Version: v1,  Published online: 1998
Retrieved March 27, 2023, from https://www.rep.routledge.com/articles/thematic/critical-legal-
studies/v-1

Article Summary
Critical Legal Studies first developed in the USA in the latter half of the 1970s. Drawing on the
political inspiration of the contemporary New Left, it was an intellectual movement committed
to radicalizing legal theory by bringing together US legal realism and modern European social
theory. In so doing, it sought to provide a fundamental critique of the nature and place of law
in modern capitalist society.

In its first phase, its main target was the liberal positivist theories of law that dominate Anglo-
American jurisprudence. Such theories inform both the organization of the traditional legal
curriculum and the nature of legal practice. By contrast, Critical Legal Studies saw law as based
upon deeply contradictory premises, so that the orthodox positivist claim that law could be in
principle rational and coherent was rejected in favour of the ‘indeterminacy thesis’. Legal
decisions were in truth a matter not of logical deduction but of choice. T hey could always go
one way or the other. Ultimately, therefore, it was an open political decision made by a judge
which determined a legal conclusion. T he idea of the ‘rule of law’ operating above politics was
rejected, but regarded as important in terms of the political legitimation function it served in
Western societies.

While the name ‘Critical Legal Studies’ has a US provenance, a number of different critical legal
projects can be identified. T hese projects reflect the broader character of the national
traditions of which they are a part. European approaches, particularly the German and the
British,
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has been a convergence of European and US concerns, but around a highly fragmented group
of modern and postmodern social theories. Nietzsche, Foucault, Derrida and Habermas have
been introduced into legal theory while Marx and Weber, the original theoretical mainstays of a
critical approach to law, have been sidelined. T here is a danger in this that Critical Legal Studies
will become little more than a group of theorists talking among themselves. While the original
US critique of legal doctrine may have run out of steam for want of sufficient theoretical
sophistication, it is important not to lose sight of its direct focus on law and legal forms. It is
arguable that the recent ‘turn to theory’ must validate itself in terms of the contribution it is
able to make to a critical understanding of law and its practices; also that an important, as yet
unaddressed, question concerns the relationship between postmodern forms of criticism and
sociological analyses of the development of law.

Citing this article:

Norrie, Alan. Critical Legal Studies, 1998, doi:10.4324/9780415249126-T 003-1. Routledge
Encyclopedia of Philosophy, T aylor and Francis,
https://www.rep.routledge.com/articles/thematic/critical-legal-studies/v-1.
Copyright © 1998-2023 Routledge.

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