CRITICAL LEGAL STUDIES
Critical legal study (CLS) is a theory that challenges and overturns accepted norms and standards in legal theory and practice. Supporters of this theory believe that logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. For the critical feminists, the law is “patriarchal” and for the critical race, the domination is race. The basic idea of CLS is that the law is politics and it is not neutral or value free. Many in the CLS movement want to overturn the hierarchical structures of domination in the modern society and many of them have focused on the law as a tool in achieving this goal. CLS is also a membership organization that seeks to advance its own cause and that of its members. CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights movement and the Vietnam War. The political ferment of the late 1960’s gave rise to new types of writings and analysis in the legal academy that criticizes mainstream legal activity. Many CLS scholars entered law school in those years and began to apply the ideas, theories, and philosophies of post modernity to the study of law. They borrowed from such diverse fields as social theory, political philosophy, economics, and literary theory. Since then CLS has steadily grown in influence and permanently changed the landscape of legal theory. Among noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon. Hosting annual conferences and workshops between 1977 and 1992, CLS scholars and those they have influenced try to explain both why legal principles and doctrines do not yield determinate answers to specific disputes and how legal decisions reflect cultural and political values that shift over time. They focused from the start on the ways that law contributed to illegitimate social hierarchies, producing domination of women by men, non-whites by whites, and the poor by the wealthy. They claim that apparently neutral language and institutions, operated through law, mask relationships of power and control. The emphasis on individualism within the law similarly hides patterns of power relationships while making it more difficult to summon up a sense of community and human interconnection. Joining in their assault on these dimensions of law, CLS scholars have differed considerably in their particular methods and views. At the heart of the CLS critique of liberal jurisprudence is the idea that radical indeterminacy is inconsistent with liberal conceptions of legitimacy. According to these traditional liberal conceptions, the province of judges is to interpret, and not make, the law. For, on this view, democratic ideals imply that law-making must be left to legislators who, unlike appointed judges, are accountable to the electorate. But if law is radically indeterminate, then judges nearly always decide cases by making new law, which is inconsistent with liberal conceptions of the legitimate sources of law-making authority. While aspects of CLS scholarship have been traced as far back as Ancient Greece, CLS most direct philosophical antecedent is critical Marxism. Critical Marxists view “conventional legal scholarship as playing an apologetic role for oppression in contemporary American society, either by rationalizing existing legal practices or by proposing specific reforms based on the premise that those practices are fundamentally reasonable if suitably reformed.” One of the reasons that CLS has proven so...
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