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Critical Legal Studies

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.

Unger provides the most well-known example of the utopian tendencies in CLS. In his writings, he has attempted to outline a "cultural-revolutionary practice" that will lead to nothing less than "the systematic remaking of all direct personal connections … through their progressive emancipation from a background plan of social division and hierarchy." Unger envisions a future in which the categories that currently divide and separate people—including sexual, racial, political, and class categories—are broken down, allowing people to share more values and to create a more harmonious society. He calls for an "empowered democracy" with a government and economy that are largely decentralized. In terms of the economy, he proposes that capital be controlled by the government, which would establish a "rotating capital fund" that would pass to "teams of workers or technicians" who would decide how to use it. Many conditions of the economy, such as income disparity between individuals, would be addressed by "central agencies of government."

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 "superliberalism":

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.

CLS has many critics. Some see it as lacking coherence, fraught with the very contradictions that it identifies in liberalism. Others accuse the movement of being nihilistic, of destroying the foundations of legal reasoning without putting anything in its place or without even making positive recommendations for change. They find CLS prescriptions for the future to be too vague and utopian for practical application. Another widespread complaint is that the writings of CLS scholars are unnecessarily obscure, opaque, and turgid.

Despite these criticisms, CLS has greatly influenced the study and theory of the law. 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 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.

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