Critical Legal Studies

An intellectual movement whose members argue that law is neither neutral nor value free but is in fact inseparable from politics.

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.

CLS was officially started in the spring of 1977 at a conference at the University of Wisconsin in Madison. However, the roots of the organization extend back to LEGAL REALISM, a movement in U.S. legal scholarship that flourished in the 1920s and 1930s. OLIVER WENDELL HOLMES is credited with being the grandfather of CLS with his various observations in The Common Law (1881). The legal realists rebelled against the accepted legal theories of the day, including most of the accepted wisdom of nineteenth-century legal thought. Like CLS, legal realism emphasized that judicial decisions depend largely on the predilections and social situation of the judge. Thus, the legal realists urged that much more attention be paid to the social context of the law. The legal realists eventually influenced the development of the NEW DEAL under President FRANKLIN D. ROOSEVELT in the 1930s, and many served in positions where they affected government policy.

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.

CLS has been largely a U.S. movement, though it has borrowed heavily from European philosophers, including nineteenth-century German social theorists such as KARL MARX, Friedrich Engels, and MAX WEBER; Max Horkheimer and Herbert Marcuse of the Frankfurt school of German social philosophy; the Italian Marxist Antonio Gramsci; and poststructuralist French thinkers such as Michel Foucault and Jacques Derrida, representing, respectively, the fields of history and literary theory.

Several subcategories exist within the CLS movement: feminist legal criticism, which examines the role of gender in the law; critical race theory (CRT), which is concerned with the role of race in the law; postmodernism, a critique of the law influenced by developments in literary theory; and a subcategory that emphasizes political economy and the economic context of legal decisions and issues. Scholars disagree about the extent to which CLS is a coherent intellectual movement. Some see it simply as a political position adopted by a disparate group of legal theorists who have fundamentally different, even contradictory, views. Others emphasize that CLS theorists share a number of important ideas and approaches that together constitute a new approach to legal scholarship.

First among the basic ideas that CLS scholars tend to share is the notion that law is politics—in other words, that law and politics are indistinguishable from one another. Liberalism, according to CLS theorists, has traditionally viewed the law as an objective, rational process of precise decision-making and politics as a realm of imprecise, often irrational opinions and competing interests. According to CLS theorists, however, the law is not separate from the political realm and its disputes. Legal reasoning, rather than being a strong fortress of objective rationality, is a fragile structure fraught with contradictory and ARBITRARY categorizations that are endlessly redefined and reworked.

In this view, the law is only an elaborate political ideology, which, like other political ideologies, exists to support the interests of the party or class that forms it. The legal system, according to CLS, supports the status quo, perpetuating the established power relations of society. The law does have logic and structure, but these grow out of the power relationships of society. CLS therefore sees the law as a collection of beliefs and prejudices that covers the injustices of society with a mask of legitimacy. Law is an instrument for oppression used by the wealthy and the powerful to maintain their place in the hierarchy.

As part of its project, CLS exposes what it sees as the flaws in various aspects of liberal legal theory and practice. It argues, for example, that judicial objectivity is impossible because political neutrality or philosophical objectivity cannot exist. CLS thus strips the judiciary of its supposedly disinterested role in society. As Allan C. Hutchinson, a CLS theorist, wrote: "The judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of vested white and male power." In this way, CLS seeks to "delegitimate" and "demystify" the law—that is, it seeks to undermine the law's acceptance and to remove the cloak of mystery and awe surrounding its functioning.

CLS theorists also share the related view that the law is indeterminate. They have shown that using standard legal arguments, it is possible to reach sharply contrasting conclusions in individual cases. The conclusions reached in any case will have more to do with the social context in which they are argued and decided than with any overarching scheme of legal reasoning. Moreover, CLS scholars argue that the esoteric and convoluted nature of legal reasoning actually screens the law's indeterminacy. They have used the ideas of deconstruction to explore the ways in which legal texts are open to multiple interpretations. (Deconstruction is a movement in literary theory that is connected to the work of French philosopher Derrida and that emphasizes the fundamental indeterminacy of language.)

Consistent with their position on the political left, CLS scholars have a common dissatisfaction with the established legal and political order and particularly for the liberalism that they see as the dominant political ideology. CLS demonstrates how liberalism describes the world according to categories that exist as dualities: subjective-objective, male-female, public-private, self-other, individual-community, and so forth. These dualities are sometimes called paired opposites by CLS theorists. CLS then breaks down the dualities and shows how they create an ideology that furthers the interests of the ruling class. CLS theorists also decry the individualism that liberal society fosters, and they call for a renewed emphasis on communal rather than individual values. They particularly object to capitalism as an economic system, and they see liberalism as capitalism's greatest apologist.