Critical Legal Studies Research Paper

Within these broad commonalities of outlook and concern, the CLS movements have tended to fragment into many different schools, informed by diverse intellectual antecedents and committed to divergent views of the role of law in social life and of the political ambitions of intellectual critique and reform.

The US movements receive most attention here, since they attracted the most members, produced the largest literature, and penetrated the furthest into centers of legal education; also, their types of scholarship and internal quarrels parallel those of CLS movements elsewhere. CLS-USA came into being in 1977 at a conference of law teachers rebelling against their own legal education and its seeming irrelevance to the contemporary ferment of social movements (anti-Vietnam War, civil rights, feminist, environ-mental, etc.). By the 1980s critical teachers made up a significant fraction (four or more faculty) at Buffalo, Harvard, Miami, Northeastern, Stanford, UCLA, and Wisconsin law schools and a token presence at many more, eventually producing students who went into law teaching themselves, a substantial Bibliography: (Kennedy and Klare 1984, Bauman 1996), and a series of national conferences.

1. Antecedents Of CLS

To critique the orthodoxies of their legal culture, American critics in the first phase of their movement found resources in various European theories, especially Western neo-Marxist theories of law as ‘ideology’ and an instrument of ‘hegemony’ (Gramsci 1971), humanist social histories of subordinated groups (Hay 1975, Thompson 1975), structuralism, and phenomenology. But their main resource turned out to be their domestic forerunners, the American legal realists of the 1920s and 1930s who critiqued the classical–formalist legal orthodoxy of their own day. That orthodoxy had claimed that the operating rules of the legal system could be derived from a few basic principles induced from a scientific arrangement of precedents, such as the protection of property, the basing of liability to others on ‘fault,’ and the enforcement of the ‘free will’ of parties to contracts. This system added up to a natural and neutral mode of ordering private life, and legislative interferences with this system of rules would be struck down as unconstitutional unless they met strict tests of validity.

The realists’ critique, in brief, was that (a) the principles were too vague, and the precedents too flexible, to determine outcomes, and in actual operation produced results varying over time and with contexts; (b) the actual determinants of results were latent and unarticulated policies, ideologies, and social vision; and (c) the ‘private’ law rules of property-tort- contract that undergirded the natural-seeming private sphere of free choice in free markets, protected against interference by constitutional law, were no less artificial, no less exercises of state policy, and no less coercive, than the ‘public’ rules of legislation and administration. A property right, for example, delegated to its owner the ultimate power to use state force (self-help, private guards, the police or the army) to exclude others (such as union members or black people) he did not want to hire or deal with, and to condition access to his property (tools, land, wages, the assets of a marriage) on those others’ submitting to his orders. The coercive state was always involved in the market and business firms and family life; the issues for legal policy were thus not whether the state should be involved, but how, and to what ends—issues that courts, as well as legislatures and administrative agencies, could not avoid and had to resolve.

By the1950s and 1960s, however, the leading currents of American legal thought had settled into a new orthodoxy, one that absorbed elements of the realist critique but blunted its more radical implications. Some postwar schools held that law (including law made by judges), although not autonomous from clashing social interests, had neutral craft techniques for balancing those interests; others that law properly interpreted served social purposes on which there was presumed to be a general consensus; and others that courts differed from legislatures in that judge-made law promoted general ‘principles’ rather than specific ‘policies.’ In the late 1960s, emerging schools of law-and-economics sought to rationalize legal doctrine, especially the private law of property, tort, and contract, as serving the aims of efficiency or wealth maximization. (For an overview see Duxbury 1995)

2. Early CLS

CLS began as a set of critiques of these postwar modes of legal reasoning. Unlike other movements that carried on the legal–realist critiques, such as the law-and-society movement (which investigated empirically the social influences that helped to form, and the actual social effects of, legal rules), the critics deployed an internal critique: attacking the prevalent modes of doctrinal and policy argument practiced by law teachers, judges, and other officials on their own terms, aiming to develop counterarguments to teach to law students and practicing lawyers.

Following neo-Marxist writers and the critical social theorists of the Frankfurt School, the critics pictured legal doctrines and arguments (‘legal discourses’) as ideology, a partial vision of the world that presents itself as a universal vision. These discourses function so as to portray existing constellations of rights, powers, privileges, and immunities recognized by the legal system as if they were natural and inevitable (‘false necessity’), and as close to being good as they could be (‘false legitimation’). By such means the law ‘reifies’ and thus helps to freeze in place scripted social roles such as manager and worker, landlord and tenant, husband and wife, consumer debtor and bank creditor, property owner and picketing laborer, that blind the ordinary people who play those roles to alternative possibilities for action and/organization (see e.g., Gabel 1980).

Like the legal realists, the critics’ method was to unearth and make transparent the latent subtexts of legal doctrines and policies, the hidden framing conceptions, empirical assumptions, and social visions on which conventional legal reasoning, and the scripted social roles it gave people to play, relied. But the aim was not simply to unmask; it was to develop alternative doctrinal and policy arguments in particular fields of law, and by so doing to open a path for a revisionary politics based on different views of social reality and human potential.

In its first decade, CLS developed a distinctive model of such critiques, which, taught to and adapted by adherents and disciples, was replicated in about 100 articles covering a wide variety of legal fields. The model critique identified some deep-level tensions, polarities, or contradictions underlying a field of legal policy or argument. In a pioneering article, Kennedy argued that contract law doctrines tended to cluster around opposing conceptions of human nature, social obligation, and the functions of law: one favoring formal rules and ‘individualist’ views of economic transactions and social duty, the other favoring informal standards and ‘altruist’ ethics of sharing and cooperation (Kennedy 1976). The law in force at any given time oscillates between the opposing poles as it moves from one subject to another, but tends to privilege one pole and suppress the other, reserving it for exceptional or marginal situations.

Doctrines from the suppressed pole, however, are always available as a ‘dangerous supplement’ which at any moment may, and sometimes do take over the privileged position (Kelman 1987). One pioneer (Unger 1975) generalized the critique across legal fields to ‘liberalism’ as a whole; but most practiced it as a form of local critique, whose content varied with the field of law that was being criticized. The model also spawned its own genre of structuralist legal history, showing how legal fields come to be structured around contradictory organizing principles and social visions. For example, doctrines reflect people’s need for other people and fear of them; the desire for a state powerful enough to protect rights that will not also trample them, and for contract and property law that will carry out parties’ intentions and underwrite their freedom of action but also protect their (and others’) security. The legal system tries to ‘mediate’ the contradictory doctrines by confining each to a limited field of operation, yet such systems become unstable as the mediating devices become incoherent and exceptions spill over limits to swamp the rules (see e.g., Alexander 1987, Kennedy 1979, Mensch 1982).

This strand of CLS was often misunderstood. Critics argued that the structuring of legal fields around such ‘contradictions’ meant that law was ‘indeterminate’ because it could (and historically often did) enable judges, advocates, or reformers to make valid arguments (according to internal criteria of the legal system) for opposed positions. Doctrinal or policy arguments could always be ‘flipped’ by appealing to principles at the opposite pole. This did not mean that law was a facade, sham, or arbitrary meaningless jumble, or that doctrine was just a mask for raw political choice; rather, its indeterminacy was patterned and systemic, an effect of law’s (or liberal-ism’s) contradictory structures. Nor did it mean that law was unpredictable, because arguments drawn from one pole or another tended to be stable in the medium term. Nor, finally, was it an indictment of a legal system to say that it was ‘indeterminate.’ It was merely a fact, one papered over by mediating devices leading to the appearance of natural, necessary, and almost-as-good-as-it-could-be law.

3. Later CLS

CLS also extended the method beyond private law doctrine to the powerful emerging new forms of policy analysis, legal economics, attacking certain core premises of the new science including the Coase theorem, cost-benefit analysis of legal entitlements, public choice theory, and submission to the will of others as rational consent (see e.g., Kennedy and Michelman 1980). Others extended it to institutions: Simon identified opposed models of welfare administration, mechanical rule-application by low-skilled workers and the professional informal discretion of case-workers. He showed how the welfare system had evolved from discretion to rules with damaging results for clients and argued for restoration of discretion (Simon 1983).

Critics also revived and extended the legal realists’ critique of the distinction between ‘public’ (coercive regulatory) and ‘private’ (freely–willed contractual consensual market) relations. Following the realist R. L. Hale (see Fried 1998 for an intellectual biography), they argued that all ‘free choice’ is made by actors with property and power endowments and under baseline conditions structured by the legal system, even choice in the most intimate spheres of life such as marriage relations. Their aim was to supplement Foucault’s (1977) account of the pervasive regulation of social interactions through ‘disciplines’ with an account of the pervasive structuration of transactions and interactions in business and personal life through law.

Much critical effort went into history (see Gordon 1984). Some critical historians worked in the tradition of the social history of subordinated groups, using historical examples to show how ruling groups had used neutral- and equal-sounding legal doctrines to extend and justify their rule. Horwitz (1977) showed how early-nineteenth-century law had reworked private law rules of property, tort, and contract to favor entrepreneurs in the early nineteenth century, then later froze the new rules against redistributive revision by imposing constitutional restraints on legislation. Klare (1978) showed how conservative judges had drained the National Labor Relations (Wagner) Act of the New Deal of its potential as a charter of workers’ rights to participate in management. Critical historians often read the past as a repository of lost social experiments, long since crushed or forgotten, which might serve as models for reconstructing aspects of social life—as did Frug with the nineteenth-century model of powerful autonomous city governments (Frug 1980), and Simon did with ‘social–republican’ property models of landholding and producers’ cooperatives (Simon 1991). Other histories explored the legal structuration of social relations, especially those of master and slave, employer and employee, husband and wife (see e.g., Steinfeld 1991, Olsen 1983).

By the mid-1980s CLS had entered a new phase. One group of critics, perhaps responding to accusations that CLS was ‘nihilist’ in its attachment to destructive criticism (‘trashing’), turned to concrete programmatic work. Unger’s (1998) was once again the most ambitious, proposing large-scale programs for the democratization of the economies of both developed and developing societies; most others were small-scale proposals for reforming specific legal policy fields, such as worker participation in owner-ship and management (Stone and van Wezel 1988), treatment of workers in plant closings (Singer 1988), regulation of injurious speech (Abel 1994), intellectual property (Boyle 1996), disability law (Kelman and Lester 1997), and property rights in ex-Communist societies (Alexander and Skapska 1994).

Another group focused on developing critical theories of law to a new level of sophistication, integrating them with postmodernist and poststructuralist theories, especially those of Foucault and Derrida (see e.g., Balkin 1987, Heller 1984, Peller 1985).

4. Challenges And Erosion

Around the same time, CLS experienced intensifying challenges from neighboring left legal–intellectual movements, especially feminism and critical race theory. The new movements asserted differences from CLS in focus and method—differences that provoked vigorous arguments throughout the 1990s. CLS had criticized liberal legalism for its claims to have solved the problem of domination by constructing ‘rights.’ Some critics said rights increased the alienation of individuals by constituting them as monads isolated from one another (Gabel 1984). Others argued that rights mystified the realities of power relations, while still others argued that social movements’ crusades for rights (such as the black civil rights movement) often ended up giving them only symbolic victories and unenforceable claims still others contended that rights, like other legal doctrines and policies, were always in conflict—the right to equal treatment in accommodations, housing, and employment, for example, with the right to associate—and that the conflicts could not be resolved by appeals to rights (Tushnet 1984). Race theorists (e.g., Crenshaw 1988) counterargued that whatever might be the weaknesses of rights-rhetoric, claims using the language of rights had been essential to the gains of subordinated groups. CLS scholars had also stressed the indeterminacy, manipulability, and contingency of social arrangements and legal discourses, the fluidity of meanings and identities. Some feminist and critical-race theorists, by contrast, wished to insist at least provisionally on the grounded objectivity of experiences of subordination, the common shared elements that made up sexual or racial identity and the authenticity of personal narratives of the lives of the subordinated.

CLS had helped to open up and to institutionalize space—in the form of places for faculty positions, room for articles in law reviews, slots on the programs of conferences—for a legal–academic left, a novel phenomenon in the USA (and wholly missing in other professional faculties such as business schools). By the end of the 1990s, however, most of that space, like most of the energy going into novel work, was occupied by gender and race studies. CLS ideas continued diffusely to pervade both mainstream and critical fields of scholarship and policy analysis— notably its critiques of the public–private distinction and of the legal foundations of neo-liberal political economy. But as a distinct school CLS had faded away.

5. European CLS

European critical schools of law followed similar paths, with important differences due to national variations in the strength and programs of left-wing political parties and intelligentsia, and the objects of critique—traditional modes of legal training and reasoning—on the other. (A European Conference on Critical Legal Studies was organized in 1981.) In Britain, critical legal studies were first concentrated in social science faculties and grew out of the radical sociology of law, oriented in its early years to the critique of the ‘State’ and its legal controls of poor and working people through labor, policing, criminal law, and professionalized social services, later evolving into broader critiques of law as ideology (see e.g., Cain and Hunt 1979). In the 1980s CLS was taken up by law teachers, especially in the polytechnics. They organized the Critical Legal Conference in 1984, proclaiming ‘a shared rejection of the dominant tradition of Anglo-American legal scholarship, the expository orthodoxy or … ‘‘black-letter law’’ tradition’ (Fitzpatrick and Hunt 1987, p. 1). Believing that their American counterparts focused too narrowly on the internal critique of legal doctrine and reasoning, British critics maintained their connections to socio-legal studies and to radical law practices; they also developed new alliances with feminist, deconstructionist, psychoanalytic, and literary approaches. Critical legal studies in the UK, as in the USA, are a very fragmented enterprise, but unlike its American counterpart, it is flourishing (for exemplary collections and overviews see Fitzpatrick and Hunt 1987, Douzinas et al. 1994).

In France the combined influence of (a) Marxist traditions treating law as ‘merely superstructural’ and (b) separation of faculties of legal philosophy and theory from faculties of law, held back the development of left-wing legal studies until the late 1960s, when radical social movements and the surge of interest in the social theories of Althusser, Gramsci, and Foucault led to critiques of law as forms of ideology that structure and legitimate the functioning of capitalist order. After the 1980s the movement shifted emphasis from general theory to concrete case studies of the norms, reasoning modes, and institutions that went into the construction of everyday legal relations. French CLS has not deeply penetrated the centers of university training of the legal elite, but has gained a foothold in some faculties and in research centers at St. Etienne, Lyon, and Montpellier (see Arnaud 1993 for a concise summary).

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