4. CRITICAL LEGAL STUDIES
Introduction
Prescribed: Jurisprudence 246-271
CLS was formally founded in 1977 by a small group of American scholars who
shared a common commitment to leftist politics.
Critical of mainstream and orthodox legal scholarship.
Most prominent members: Peter Gabel, Roberto Unger, Duncan Kennedy,
Karl Klare.
The origin of the movement owes a huge debt to American Legal Realism.
o Movements such as feminism and critical race theory also come from
American Legal Realism.
Critical scholars readily use techniques and disciplines outside of law in order
to study legal phenomena in a manner that would reveal underlying truths
about legal order.
They take aim at the perceived naturalness of the current legal and social
order.
Three ways in which CLS is similar to Realism, but which also involve
advances beyond Realism:
o Its reliance on historiography;
o Its emphasis on doctrinal critiques;
o Its use of political tradition.
Its reliance on historiography
Realists showed that legal doctrine and legal rules are influenced by factors
outside of the law/reality. In this way the doctrine of law is contingent – legal
rules/outcomes represent choices of one set of values over another.
CLS showed that the basic assumptions underlying and conditioning the
development of the doctrine of law is also contingent. The assumptions
underlying legal rules are also contingent.
o The assumptions underlying legal rules come from somewhere (they
are also contingent).
, Historical modes of legal reasoning shape the law (legal rules/liberalism/the
politics of law?)
o View law within the time and the place it is applicable.
Its emphasis on doctrinal critiques
Abstract legal principles such as freedom of contract, liberty, and property can
ground contradictory arguments in any given case.
CLS employ techniques on a higher level of abstraction – CLS use sociology,
philosophy, anthropology and psychology to uncover the assumptions and
ideologies underlying the legal order.
They take aim at the entire framework of liberal legal thought for example and
not just the legal rules that are created by that framework.
Demonstrate inherent contradictions and tensions in liberal thought.
Its use of political tradition
CLS emerges from a specific political tradition.
o They have a political vision of ‘participatory democracy, civic
republicanism, or decentralised socialism’. Criticism of liberal
framework.
Candid pursuit of societal transformation.
Socially situated assessment of the law.
Distinguish between CLS internal critique and external critique:
Internal critique:
This critique is internal to legal doctrine and attempts to expose the
contradictions that lie embedded in legal thought.
External critique:
This form of critique adopts an external, detached perspective removed from
the confines of legal doctrine- attempts to sketch the outlines of an alternative
political framework. This refers to CLS’ broader political agenda.
Internal Critique
Starting point is the indeterminacy argument.
Introduction
Prescribed: Jurisprudence 246-271
CLS was formally founded in 1977 by a small group of American scholars who
shared a common commitment to leftist politics.
Critical of mainstream and orthodox legal scholarship.
Most prominent members: Peter Gabel, Roberto Unger, Duncan Kennedy,
Karl Klare.
The origin of the movement owes a huge debt to American Legal Realism.
o Movements such as feminism and critical race theory also come from
American Legal Realism.
Critical scholars readily use techniques and disciplines outside of law in order
to study legal phenomena in a manner that would reveal underlying truths
about legal order.
They take aim at the perceived naturalness of the current legal and social
order.
Three ways in which CLS is similar to Realism, but which also involve
advances beyond Realism:
o Its reliance on historiography;
o Its emphasis on doctrinal critiques;
o Its use of political tradition.
Its reliance on historiography
Realists showed that legal doctrine and legal rules are influenced by factors
outside of the law/reality. In this way the doctrine of law is contingent – legal
rules/outcomes represent choices of one set of values over another.
CLS showed that the basic assumptions underlying and conditioning the
development of the doctrine of law is also contingent. The assumptions
underlying legal rules are also contingent.
o The assumptions underlying legal rules come from somewhere (they
are also contingent).
, Historical modes of legal reasoning shape the law (legal rules/liberalism/the
politics of law?)
o View law within the time and the place it is applicable.
Its emphasis on doctrinal critiques
Abstract legal principles such as freedom of contract, liberty, and property can
ground contradictory arguments in any given case.
CLS employ techniques on a higher level of abstraction – CLS use sociology,
philosophy, anthropology and psychology to uncover the assumptions and
ideologies underlying the legal order.
They take aim at the entire framework of liberal legal thought for example and
not just the legal rules that are created by that framework.
Demonstrate inherent contradictions and tensions in liberal thought.
Its use of political tradition
CLS emerges from a specific political tradition.
o They have a political vision of ‘participatory democracy, civic
republicanism, or decentralised socialism’. Criticism of liberal
framework.
Candid pursuit of societal transformation.
Socially situated assessment of the law.
Distinguish between CLS internal critique and external critique:
Internal critique:
This critique is internal to legal doctrine and attempts to expose the
contradictions that lie embedded in legal thought.
External critique:
This form of critique adopts an external, detached perspective removed from
the confines of legal doctrine- attempts to sketch the outlines of an alternative
political framework. This refers to CLS’ broader political agenda.
Internal Critique
Starting point is the indeterminacy argument.
