Critical legal studies (CLS) is a school of

critical theory A critical theory is any approach to social philosophy that focuses on society and culture to reveal, critique and challenge power structures. With roots in sociology and literary criticism, it argues that social problems stem more from s ...

that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se

DOI, 10.1093/ojls/6.1.1. CLS adherents claim that laws are devised to maintain the

status quo is a Latin phrase meaning the existing state of affairs, particularly with regard to social, political, religious or military issues. In the sociological sense, the ''status quo'' refers to the current state of social structure and/or values. ...

of society and thereby codify its biases against marginalized groups. 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: * to demonstrate the

ambiguity Ambiguity is the type of meaning in which a phrase, statement or resolution is not explicitly defined, making several interpretations plausible. A common aspect of ambiguity is uncertainty. It is thus an attribute of any idea or statement ...

and possible preferential outcomes of supposedly impartial and rigid

legal doctrine A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling ...

s. * to publicize historical, social, economic and psychological

results A result is the outcome of an event. Result or Results may also refer to: Music * ''Results'' (album), a 1989 album by Liza Minnelli * ''Results'', a 2012 album by Murder Construct * "The Result", a single by The Upsetters * "The Result", a song ...

of legal decisions * to demystify legal analysis and legal culture in order to impose transparency on legal processes so that they earn the general support of socially responsible citizens The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.

Influence

Considered "the first movement in legal theory and legal scholarship in the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

to have espoused a committed Left political stance and perspective", 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.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 erified and 423. 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." 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."Duncan Kennedy and Karl E. Klare, "A Bibliography of Critical Legal Studies," Yale Law Journal, Vol. 94 (1984): 461. 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 and were seen as the most powerful voices and the only way forward for the movement. 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.Unger, Roberto Mangabeira, ''The Critical Legal Studies Movement''. New York:Verso, 2015.

History

Although the intellectual origins of the critical legal studies (CLS) can be generally traced to American

legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...

, 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 Marxism is a Left-wing politics, left-wing to Far-left politics, far-left method of socioeconomic analysis that uses a Materialism, materialist interpretation of historical development, better known as historical materialism, to understand S ...

and those who worked on

Deconstruction The term deconstruction refers to approaches to understanding the relationship between text and meaning. It was introduced by the philosopher Jacques Derrida, who defined it as a turn away from Platonism's ideas of "true" forms and essen ...

, 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 A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In th ...

, the Conseil d'Etat, and the Ecole Nationale De la Magistrature, famed sociologist

Pierre Bourdieu Pierre Bourdieu (; 1 August 1930 – 23 January 2002) was a French sociologist and public intellectual. Bourdieu's contributions to the sociology of education, the theory of sociology, and sociology of aesthetics have achieved wide influence ...

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 Hastings Law Journal is the oldest law journal at the University of California, Hastings College of the Law. It began in 1949 in San Francisco, California. As of 1997, it is under the umbrella of the O'Brien Center for Scholarly Publications. The ...

(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", American legal realism sent a shock through American legal scholarship by undermining the formalist tenets that were long considered a bedrock of jurisprudence. 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."

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."Unger 2015, p. 24. 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."Gerard J. Clark, "A Conversation with Duncan Kennedy," The Advocate: The Suffolk University Law School Journal, Vol. 24, No. 2 (1994): 56-61. Se

Kennedy has emphasized the twofold nature of critical legal studies, as both a network of leftist scholar/activists and a scholarly literature:

itical 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.

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. 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.Douzinas, Costas and Perrin, Colin. Critical Legal Theory, London: Routledge, 2011. Se

Prominent participants in the CLS movement include Derrick Bell,

Drucilla Cornell Drucilla Cornell (born 16 June 1950), is an American philosopher and feminist theorist, whose work has been influential in political and legal philosophy, ethics, deconstruction, critical theory, and feminism. Cornell is an emerita Professor of P ...

, Mark Kelman, Alan Hunt,

Catharine MacKinnon Catharine Alice MacKinnon (born October 7, 1946) is an American radical feminist legal scholar, activist, and author. She is the Elizabeth A. Long Professor of Law at the University of Michigan Law School, where she has been tenured since 1990, ...

, Duncan Kennedy, David Kennedy, Martti Koskenniemi, Gary Peller, Peter Fitzpatrick,

Morton Horwitz Morton J. Horwitz (born 1938) is an American legal history, legal historian and law professor at Harvard Law School. The recent past dean (education), dean of Harvard Law School, Elena Kagan, relates that during her time at Law school in the United ...

Jack Balkin Jack M. Balkin (born August 13, 1956) is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a r ...

Costas Douzinas Costas Douzinas ( el, Κώστας Δουζίνας; born 1951) 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 ...

, Karl Klare,

Peter Gabel Peter Gabel (January 28, 1947 – October 25, 2022) was an American law academic and associate editor of '' Tikkun'', a bi-monthly Jewish critique of politics, culture, and society, He wrote a number of articles for the magazine on subjects rangi ...

, Roberto Unger, Renata Salecl,

Mark Tushnet Mark Victor Tushnet (born 18 November 1945) is an American legal scholar. He specializes in constitutional law and theory, including comparative constitutional law, and is currently the William Nelson Cromwell Professor of Law at Harvard Law Sch ...

, Louis Michael Seidman, John Strawson and Martha Fineman.

Intellectual and political context

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 ..." That circumstance was the dominant practice of legal analysis which Unger calls the "method of reasoned elaboration". A close descendant of nineteenth-century doctrinal formalism, which sought through legal analysis to identify the "inbuilt legal content of a ... free society", 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. 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". 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. 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, 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." Critical legal scholars challenged that consensus and sought to use legal theory as a means to explore alternative forms of social and political organization. In accordance with the

Critical rationalism Critical rationalism is an epistemological philosophy advanced by Karl Popper on the basis that, if a statement cannot be logically deduced (from what is known), it might nevertheless be possible to logically falsify it. Following Hume, Popper ...

the German jurist

Reinhold Zippelius Reinhold Zippelius (born 19 May 1928) is a German jurist and law scholar. Now retired, he was formerly the professor of the Philosophy of law and Public law at the University of Erlangen-Nuremberg. Life and career Reinhold Walter Zippelius was ...

uses Popper's method of "trial and error" in his 'Legal Philosophy'.

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

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...

s and

case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...

) 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. 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 Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...

human rights Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...

jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...

criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...

property law Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

, etc., have proved crucial to the development of those discourses. Equally, CLS has introduced new frameworks to the legal field, such as

postmodernism Postmodernism is an intellectual stance or mode of discourseNuyen, A.T., 1992. The Role of Rhetorical Devices in Postmodernist Discourse. Philosophy & Rhetoric, pp.183–194. characterized by skepticism toward the " grand narratives" of modern ...

, queer theory, literary approaches to law,

psychoanalysis PsychoanalysisFrom Greek: + . is a set of theories and therapeutic techniques"What is psychoanalysis? Of course, one is supposed to answer that it is many things — a theory, a research method, a therapy, a body of knowledge. In what might ...

, law and

aesthetics Aesthetics, or esthetics, is a branch of philosophy that deals with the nature of beauty and taste, as well as the philosophy of art (its own area of philosophy that comes out of aesthetics). It examines aesthetic values, often expressed t ...

, and post-colonialism.

Continued influence

Critical legal studies continues as a diverse collection of schools of thought and social movements. The CLS community is an extremely broad group with clusters of critical theorists at law schools and socio-legal studies departments such as

Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each c ...

Georgetown University Law Center The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...

Northeastern University Northeastern University (NU) is a private research university with its main campus in Boston. Established in 1898, the university offers undergraduate and graduate programs on its main campus as well as satellite campuses in Charlotte, North Ca ...

University at Buffalo The State University of New York at Buffalo, commonly called the University at Buffalo (UB) and sometimes called SUNY Buffalo, is a public research university with campuses in Buffalo and Amherst, New York. The university was founded in 18 ...

, Chicago-Kent College of Law,

Birkbeck, University of London , mottoeng = Advice comes over nightTranslation used by Birkbeck. , established = , type = Public research university , endowment = £4.3 m (2014) , budget = £10 ...

University of Melbourne The University of Melbourne is a public research university located in Melbourne, Australia. Founded in 1853, it is Australia's second oldest university and the oldest in Victoria. Its main campus is located in Parkville, an inner suburb ...

University of Kent , motto_lang = , mottoeng = Literal translation: 'Whom to serve is to reign'(Book of Common Prayer translation: 'whose service is perfect freedom')Graham Martin, ''From Vision to Reality: the Making of the University of Kent at Canterbury'' ...

Carleton University Carleton University is an English-language public research university in Ottawa, Ontario, Canada. Founded in 1942 as Carleton College, the institution originally operated as a private, non-denominational evening college to serve returning Wo ...

Keele University Keele University, officially known as the University of Keele, is a public research university in Keele, approximately from Newcastle-under-Lyme, Staffordshire, England. Founded in 1949 as the University College of North Staffordshire, Keele ...

, the

University of Glasgow , image = UofG Coat of Arms.png , image_size = 150px , caption = Coat of arms Flag , latin_name = Universitas Glasguensis , motto = la, Via, Veritas, Vita , ...

, the

University of East London , mottoeng = Knowledge and the fulfilment of vows , established = 1898 – West Ham Technical Institute1952 – West Ham College of Technology1970 – North East London Polytechnic1989 – Polytechnic of East London ...

among others. In the American legal academy its influence and prominence seems to have waned in recent years. However, offshoots of CLS, including

critical race theory Critical race theory (CRT) is a cross-disciplinary examination, by social and civil-rights scholars and activists, of how laws, social and political movements, and media shape, and are shaped by, social conceptions of race and ethnicity. Goa ...

continue to grow in popularity. Associated schools of thought, such as contemporary

feminist theory Feminist theory is the extension of feminism into theoretical, fictional, or philosophical discourse. It aims to understand the nature of gender inequality. It examines women's and men's social roles, experiences, interests, chores, and femin ...

and

ecofeminism Ecofeminism is a branch of feminism and political ecology. Ecofeminist thinkers draw on the concept of gender to analyse the relationships between humans and the natural world. The term was coined by the French writer Françoise d'Eaubonne in ...

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. In

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...

, the

University of Otago , image_name = University of Otago Registry Building2.jpg , image_size = , caption = University clock tower , motto = la, Sapere aude , mottoeng = Dare to be wise , established = 1869; 152 years ago , type = Public research collegiate ...

Legal Issues Centre was established at the university's law faculty in 2007. '' Law and Critique'' is one of the few UK journals that specifically identifies itself with critical legal theory. In America, '' The Crit'' and '' Unbound: Harvard Journal of the Legal Left'' are the only journals that continue to explicitly position themselves as platforms for critical legal studies. However, other journals such as ''Law, Culture and the Humanities'', the ''Harvard Civil Rights-Civil Liberties Law Review'', '' The National Lawyers Guild Review'', ''Social and Legal Studies'', and '' The Australian Feminist Law Journal'' all published avowedly critical legal research.

References

External links

Legal Information Institute: Critical Legal Studies

Critical Legal Thinking

Law & Critique

Roberto Unger's writings on law and CLS

David W. Kennedy's writings on CLS and international law

Marxism, Feminism, and Liberalism: Leftist Legal Thought
(2010). Explores the liberal roots of Marxism and Marxist influences on the U.S. legal thought.
Lex Naturalis, Ius Naturalis: Law as Practical Reasoning and Natural Rationality
(2010). Exposé of contemporary critical legal theory.
Martti Koskenniemi's writings on CLS and international law
{{Authority control Philosophy of law Critical theory

Influence

History

Relation to American legal realism

As a literature and a network

Intellectual and political context

Themes

Continued influence

See also

References

Further reading

External links