Critical Legal Studies
Background
• C.L.S. burst on the scene in the United States in the late
1970’s with a series of conference.
• It grew out of a dissatisfaction with current legal
scholarship.
• It was more a ferment than a movement with those who
identified as ‘crits’ a diverse group perhaps united only
by their commitment to a more egalitarian society.
• Off-shoots are critical feminist jurisprudence, critical
race theory and soon.
• There is a shared concern with the ‘politics of law’.
• In one sense it is a continuance of the Realists project,
but its objectives are much wider.
• The realists were firmly within the camp of liberalism:
the C.L.S. movement was more radical attempt to
escape the ‘crippling choice’ between liberalism and
Marxism.
• Like Realist C.L.S rejects formalism, but the Realists saw
legal reasoning as autonomous or distinct and C.L.S
scholars certainly reject the enterprise of presenting a
value-free modern law.
C.L.S and Liberalism’s Contraction
• A central thrust of C.L.S.’s attack was against legal liberalism,
a tradition they associate not just with the positivism of Hart,
Kelsen and Raz but also with the writing of Dworkin, Rawls,
Nozick, Fuller and much else besides.
• They consider liberalism as ‘a system of thought that is
simultaneously beset by internal contradiction…and by a
systematic repression of the presence of these contradictions.
• The modern era is an age of contradiction: though it is
dominated by consideration of morality and policy, the
conflict between individualism and altruism remains.
• The judge is thus constantly presented with a political choice.
Rules and Reasoning
• As noted already, one characteristics of C.L.S. is its
rejection of formalism.
• Formalism has tended to be the fall back position of
liberal legal thinking when forced to confront the
question: how can a legal system give the kinds of
neutral decisions expected of it.
• Formalists, as C.L.S. characterize them, circumvent this
problem by insisting that the judge is not imposing his
values (or anyone else’s) but merely interpreting the
words of the law.
• Critics finds that the purpose of the law is equally
indeterminate.
• Legal decisions, on this view are no more neutral than
the decisions of a legislature or an executive.
• Political choices are equally involved.
• Further, the public/private law distinction is exposed as
chimerical. (mythical)
C.L.S. and Legal Practices
• One of the reason why C.L.S. could not fail to have had an impact is
that its protagonists have concerned themselves with the problems
of legal practice.
• They believe that the lessons of critique can radicalize law practice.
• It attempts to show the way that the legal system works at many
different levels to shape popular consciousness towards accepting
the legitimacy of the status quo, and to outline the ways that
fundamental social changes.
• If there is one thing that critical legal scholars are agreed about it is
that social change is not a matter of clever legal argument deployed
by elite lawyers, but rather a process of democratic organisation and
mobilization in which law will paly a necessary part.
• C.L.S. subscribes neither to the liberal view that law can
be a principle instrument of social change nor to the
Marxists view that marginalizes law and lawyers to a
superstructural fringe, rendering it largely irrelevant to
political change.
• The C.L.S. position is more complex, reflecting a
recognition of the complexity of law itself.
C.L.S. and Legal Education
• It has had an impact on legal education.
• It is intuitively wrong with the system, how it separates
subjects, ranks different law schools, (de) grade
students.
Legal Theory and Social Theory
• One of the principal advances of C.L.S. is to
demonstrate the need to integrate legal theory within
social theory.
• It attempted to introduce into discourse about law the
insights and models of analysis of social theory in
particular the relativity of truth to any given social or
historical group.
• In this view, reality is not a product of nature, but is
socially constructed.
• Social arrangements are not unproblematic, inexorable
givens: what we see as the social order is mere where
‘the struggle between individuals was halted and truce
• C.L.S. are not the only thinkers about law to be
convinced by its social contingency.
• But the novelty of their thinking lies in their attempts to
identify the role played by law and legal reasoning in
the processes through which a particular social order
comes to be seen as inevitable.
• Legal discourse is a discourse that concern the basic
terms of social life.
• By demonstrating that social life is much less structured
and much more complex, much less impartial and much
more irrational, than the legal process suggests, the
interests served by legal doctrine and theory will
surface.
