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Encyclopedia > Critical legal studies


Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.

Contents


History

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced all the way back to American Legal Realism, as a distinct scholarly movement the CLS fully emerged only by the late 1970s. Many first-wave CLS scholars entered legal education, having been profoundly influenced by the twin experiences of the radical civil rights movement and the anti-war movements of the late 1960s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of the modern Western society. Drawing on the works of the Frankfurt school (except J├╝rgen Habermas) and French structuralism, the "crits" sought to demystify the numerous myths at the heart of the mainstream legal practice.
Habermas speaking with Cardinal Joseph Ratzinger, now Pope Benedict XVI, 2004 This article is about Jürgen Habermas. ...


As a movement, the CLS peaked in the United States sometime in the first half of the 1980s. By the end of the decade, its institutional influence, however, started to fade rapidly. Today, the American CLS continues mainly as a school of thought, having spawned several successor networks and movements.


None of the European CLS networks has ever achieved the same institutional prominence as the American CLS. The British CLS movement, however, still continues, having started roughly at the same time as its American counterpart. One of the most prominent European scholars whose work shows strong CLS influences is the Finnish international lawyer Martti Koskenniemi.


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:

  • The claim 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).
  • The claim that, at the end of the day, all "law is politics." This thesis represents probably the most widely misunderstood tenet of the CLS doctrine. Many modern-day commentators have interpreted it as implying that in the eyes of the CLS scholars all "legal decisions" are just like "political decisions" in the sense that it is impossible to tell judicial and legislative acts apart. This interpretation is plainly wrong. What the "law is politics" thesis is really about is the character of the arguments used in the legal and political decision-making processes, not the nature of the practical activities (let alone institutions) involved. A court is a court, a parliament is a parliament - the two types of institutions are never the same in practice, and the CLS scholars have never denied that. What they have denied was the notion that in the modern Western society the discourses of law can be meaningfully separated from the discourses of politics: every type of argument normally made in the course of a legislative-deliberative process, they claimed, could be, and in practice usually is, also made in court. (This includes arguments about social welfare, rights, morality, distributive justice, economic efficiency, as well as institutional arguments.)
  • The claim 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, 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. The law can - and, indeed, should - provide more justice for the poor and the subaltern than it currently does in most modern societies. 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.
  • The claim 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).
  • The postmodern claim that a belief in the only correct judicial deduction is a religious belief. Comparison of judicial reasoning with shamanic practices.

Prominent participants in the CLS movement include Duncan Kennedy, Karl Klare, Mark Kelman, Mark Tushnet, Morton Horwitz, and Roberto Unger. The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is no. ... Duncan Kennedy (*1942 in Washington, D.C.) is the Carter Professor of General Jurisprudence at Harvard Law School. ... Mark Tushnet (b. ... Roberto Unger is a Brazilian contemporary social theorist and law professor at Harvard Law School. ...


Criticism

Many conservative and liberal scholars were highly critical of the critical legal studies movement. The idea that the law was utterly indeterminate was contested in a famous debate in the late 1980s. More conservative critics argued that the radical nature of the movement was inconsistent with the mission of professional legal education. The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is no. ...


Continued influence

While the influence and prominence of CLS in the American legal academy seem to have waned in recent years, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory and ecofemenism 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. To meet Wikipedias quality standards, this article or section may require cleanup. ...


See also

Cf. Critical Management Studies; legal formalism; legal realism; judicial shamanism. Critical management studies (CMS) is a loose but rapidly growing grouping of politically left wing and theoretically innovative approaches to management, business and organisation. ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ... Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ... Theory of judicial shamanism is an academic approach to analysis of judicial reasoning. ...


Further readings

  • Mark Kelman, A Guide to Critical Legal Studies, Harvard University Press, 1987
  • Roberto Mangabeira Unger, The Critical Legal Studies Movement, Harvard University Press, 1983
  • Janet E. Halley (ed.), Wendy Brown (ed.), Left Legalism/Left Critique-P, Duke University Press 2003
  • Richard W. Bauman, Critical legal studies : a guide to the literature, Boulder, Colo. : Westview Press, 1996
  • Richard W. Bauman, Ideology and community in the first wave of critical legal studies, Toronto [u.a.] : University of Toronto Press, 2002
  • Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition, New York University Press 2004

External links


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Critical legal studies - Wikipedia, the free encyclopedia (1089 words)
Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law.
More conservative critics argued that the radical nature of the movement was inconsistent with the mission of professional legal education.
While the influence and prominence of CLS in the American legal academy seem to have waned in recent years, offshoots of CLS, including critical race theory continue to grow in popularity.
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