Critical legal studies

Critical legal studies was a movement in legal thought in the 1970s and 80s committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that was argued to be behind existing legal institutions.[1] Adherents of the movement sought to destabilize traditional conceptions of law and to unravel and challenge existing legal institutions. The more constructive members, such as Roberto Mangabeira Unger, sought to rebuild these institutions as an expression of human coexistence and not just a provisional truce in a brutal struggle[2] and were seen as the most powerful voices and the only way forward for the movement.[3][4][5] Unger is one of the last standing members of the movement to continue to try to develop it in new directions—namely, to make legal analysis the basis of developing institutional alternatives.[6][7]

The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents.[1]

History

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced to American Legal Realism, as a distinct scholarly movement CLS fully emerged only in the late 1970s. Many first-wave American CLS scholars entered legal education, having been profoundly influenced by the experiences of the civil rights movement, women's rights movement, and the anti-war movement of the 1960s and 1970s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of modern Western society. Drawing on both domestic theory and the work of European social theorists, the "crits" sought to demystify what they saw as the numerous myths at the heart of mainstream legal thought and practice.

The British critical legal studies movement started roughly at a similar time as its American counterpart. However, it centered around a number of conferences held annually, particularly the Critical Legal Conference and the National Critical Lawyers Group. There remain a number of fault lines in the community, between theory and practice, between those who look to Marxism and those who worked on Deconstruction, between those who look to explicitly political engagements and those who work in aesthetics and ethics.

Themes

Although the CLS (like most schools and movements) has not produced a single, monolithic body of thought, several common themes can be generally traced in its adherents' works. These include:

Increasingly, however, the traditional themes are being superseded by broader and more radical critical insights. Interventions in intellectual property law, human rights, jurisprudence, criminal law, property law, international law, etc., have proved crucial to the development of those discourses. Equally, CLS has introduced new frameworks to the legal field, such as postmodernism, queer theory, literary approaches to law, psychoanalysis, law and aesthetics, and post-colonialism.

Prominent participants in the CLS movement include Drucilla Cornell, Alan Hunt, Catharine MacKinnon, Duncan Kennedy, David Kennedy, Martti Koskenniemi, Gary Peller, Peter Fitzpatrick, Morton Horwitz, Jack Balkin, Costas Douzinas, Peter Gabel, Roberto Unger, Renata Salecl, Mark Tushnet, Louis Michael Seidman, John Strawson and Martha Fineman.

Continued influence

CLS continues as a diverse collection of schools of thought and social movements. The CLS community is an extremely broad group with clusters of critical theorists at law schools such as Harvard Law School, Georgetown University Law Center, Northeastern University, University at Buffalo, Birkbeck, University of London; University of Melbourne, University of Kent, Keele University, the University of Glasgow, the University of East London among others.

In the American legal academy its influence and prominence seems to have waned in recent years. However, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as contemporary feminist theory and ecofeminism and critical race theory now play a major role in contemporary legal scholarship. An impressive stream of CLS-style writings has also emerged in the last two decades in the areas of international and comparative law.

In addition, CLS has had a practical effect on legal education, as it was the inspiration and focus of Georgetown University Law Center's alternative first year curriculum, (Termed "Curriculum B", known as "Section 3" within the school). In the UK both Kent and Birkbeck have sought to draw critical legal insights into the legal curriculum, including a critical legal theory based LLM at Birkbeck's School of Law. Various research centers and institutions offer CLS-based taught and research courses in a variety of legal fields including human rights, jurisprudence, constitutional theory and criminal justice.

In New Zealand, the University of Otago Legal Issues Centre was established at the University's law faculty in 2007.

Law & Critique is one of the few UK journals that specifically identifies itself with critical legal theory. In America, The Crit is the only journal that continues to explicitly position itself as a platform for critical legal studies. However, other journals such as Law, Culture and the Humanities, Unbound: The Harvard Journal of the Legal Left, the Harvard Civil Rights-Civil Liberties Law Review, The National Lawyers Guild Review, Social and Legal Studies and The Australian Feminist Law Journal all published avowedly critical legal research.

References

  1. ↑ 1.0 1.1 Turley, Jonathan. "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law Review 81 (1987): 595
  2. ↑ Unger, Roberto Mangabeira. Passion: An Essay on Personality. New York: Free Press, 1984, p. 47
  3. ↑ Turley, Jonathan. "Hitchhiker's Guide to CLS, Unger, and Deep Thought". Northwestern University Law Review 81 (1987): 423
  4. ↑ Hutchinson, Allan C, and Patrick J Monahan. 1984. "The Rights Stuff: Roberto Unger and Beyond". Texas Law Review 62: 1478
  5. ↑ Bartholomew, Amy, and Alan Hunt. 1990. "What's Wrong with Rights". Law and Inequality: A Journal of Theory and Practice 9: 1.
  6. ↑ Unger, Roberto Mangabeira. What Should Legal Analysis Become? London ; New York: Verso, 1996.
  7. ↑ Waldron, Jeremy. 1998. "Review: Dirty Little Secret". Columbia Law Review 98 (2) (March 1): 510–530.

See also

Further reading

External links