The term critical legal studies, or CLS, refers to a movement in the legal context, which was established in the early 1970’s. The movement was established with the aim of changing the society based on human personality, hidden interests and class domination legal system. It was also established in order to subvert the traditional perceptions of the law. It aims at unraveling and challenging the current legal institutions. Members of the critical legal studies seek to rebuild legal institutions so that they can promote positive coexistence of humans. It also suggests that law is an aspect of politics and that it favors the rich in the society. On the other hand, CLS suggests that autonomous individualism does not exist in any legal lawsuit. Instead, a person is more attached to their social context than their autonomous status. The movement also refutes the claim that the law is neutral and objective. Instead, it suggests that democratic and economic influence has derailed the intention of the law to provide freedom and equality. In this paper, the arguments suggested by the CLS will be discussed that contradict the practice and application of the law in the contemporary society.
Foundation of the CLS
The intellectual origin of the CLS can be traced back to the American legal realism. However, the distinct CLS emerged in the late 1970’s. Many founding members of the CLS joined legal education under the influence of civil rights movements. These included women’s rights movement, anti-racism movement, and anti-war movements in the late 1960’s and early 1970’s (Knox, 2011). The campaign started as a critical protest to the American domestic politics. However, it eventually turned into the major critic of the dominant legal ideology of the contemporary society of the West. The CLS draws its critics from domestic and social theories in the European’s legal context to explain what they see as myths in the main context of legal concepts and practices (Butler, 2009). Both the British and American critical legal studies started almost at the same time. Nevertheless, the British CLS is centered on several annual conferences, particularly the National Critical Lawyers Group and the Critical Legal Conference (Knox, 2011).
The Thesis of Indeterminacy
One of the ongoing debates is the indeterminacy debate in legal theory. Among the unresolved issues is whether or not the law restraints the outcome given by the juries in lawsuits. Some members of the CLS in the United States argue that the answer to the issue is “no” (Butler, 2009). To elaborate on their answer, the CLS members suggest that legal disputes do not have clear answers. Therefore, in a legal litigation, there must be a given amount of uncertainty in terms of legal reasoning, practices, and applications to the litigation. This implies that legal doctrine is indeterminate, which means that the legal doctrine always involves a counter-rule that can be used in the legal reasoning process. The thesis of indeterminacy tends to provide an answer to the thesis of the “right answer” developed by Ronald Dworkin (Golder, 2006). The thesis is the strongest form of the legal realism. It posits that nothing is considered to be a law until it is officially promulgated either by a law court judge or legislatures (Boyle, 1992).
The CLS has used several standard legal arguments to indicate that the law is indeterminate. According to the scholars, it is possible to reach a sharply contradicting conclusion in individual lawsuits. Any legal conclusion reached in a given lawsuit has more to do with the social context under which the case is argued and decided than the all-encompassing scheme of legal reasoning (Butler, 2009). The CLS also argues that the obscure and complex nature of legal reasoning actually depicts the law as indeterminate. It is at this point where the scholars use the deconstruction ideas to explore the way in which legal writings are open to several interpretations. It provides an example by arguing that a statute that saying “No individual may smoke in a health center” does not mean that “Mr. X may not smoke in a health center.” The second statement may be made a law only if it is declared so by a legitimate authority (Butler, 2009). We cannot argue that a legal statement is right or wrong without providing a normative judgment value about what should be rendered by the law. This implies that we cannot use legal statement analogous to the situation at hand to prove whether the act is right or wrong.
In early 1990’s, both liberal and conservative defenders of the rule of the law vehemently attacked the thesis of indeterminacy and the related debates (Golder, 2006). Even though the mantle of the thesis has been taken by the contemporary scholars, the argument posited by the indeterminacy thesis has left the intellectual context for the time being. The indeterminacy thesis can be criticized because the idea of legal mistake is recognized in the determinative theory of the law. Even though such a mistake basically involves a normative judgment, the fact is that it is not subjective. Positivists argue that this judgment is predictably objective because the cognition rule does not recognize those mistakes as lawful (Kumar, 2007).
Relationship between Law and Politics
The CLS also posits that all aspects of the law are political in nature. According to the movement, all legal decisions made by the authority are a type of political decision. However, this does mean that it is impossible to distinguish between the judicial and legislative acts (Butler, 2009). Instead, the CLS argues that although legal forms may differ, both are based on the development and maintenance of a given social space. The argument is aimed at criticizing the idea posited by the positivists that politics and law can be completely separated from each other. However, a more distinct view, which rejects the reduction of law to politics, has emerged recently. The view asserts that the two disciplines, law and politics, are mutually entwined even though they are separate entities (Boyle, 1992). According to the view, there is nothing like pure law and pure politics. The two entities work together and constantly change their positions in the two linguistic contexts.
For instance, legislatures are political leaders responsible to write bills, debate the bills, and enact them into law (Golder, 2006). Every facet of the rule of law has political attachments to it. One might argue that some statements become law after the courts’ interpretation in a given lawsuit. However, an interpretation in a given lawsuit must have its roots in the political context. On the one hand, legislatures are given the authority to avert any law they feel is infringing on people’s rights. Although the law is not politics, we cannot have laws without politics just in the same way we cannot have politics without law (Knox, 2011). The two disciplines have to exist together both inside and outside the legal system. They need each other, and each one of them acts as an oversight body to the other. The law controls political activities is the same way politics controls the law.
Relationship between Law and Social Class Division
Another theme of the CLS is the idea that law favors the affluent in the society (Butler, 2009). According to the CLS, the law is practiced is such a manner that it serves the interests of the rich and influential section of the society. The movement suggests that the law protects the interest of the rich against the basic demands of the poor in the society. It also infringes on the interest of the subaltern, which include ethnic minorities, women, disabled groups, the working class, and indigenous people, among other groups with unique demands and lifestyles (Golder, 2006). The law, therefore, removes the greater intent of giving justice to everyone irrespective of their status or lifestyle. The CLS argues that even though the law is written with the good motives, the legal practices and applications demonstrated within the justice system fail to provide equality to all. Instead, the law gives the affluent what they want and denies vulnerable groups their basic demands.
The claim raised by the critical legal studies includes a strong legal realist argument, which states that what law says it does and what it tends to do in practice are two different things. For instance, almost every law in the world claims to protect the interests of the less fortunate as well as the subaltern group in the society (Butler, 2009). However, in reality, the law only serves the interests of the affluent in the society. The CLS scholars claim that this obviously should not be the case. The law does the opposite when it should serve everyone equally. There is nothing intrinsic about the idea that the law is the only intervening tool in the context of social injustice (Kumar, 2007).
The truth is that the scale of the reforms which should be undertaken to realize the main objectives of the law are significantly greater than the current mainstream of the legal discourse. In addition, the CLS claims that there is inherent contradiction contained in legal materials. The positive legal structure is based upon a series of binary oppositions. For instance, legal systems depict the opposition between individualism and altruism (Butler, 2009). The law tends to be more individualistic than altruistic. This is true when it comes to the argument that the law supports the interest of those who matter in the society. The law also depicts the opposition between preference for strict rules and equitable flexibility, which prefers broad standards of its application. With respect to the argument that the law protects the interests of the rich, it does not portray equitable flexibility to the society.
The CLS also questions other key assumptions of the law (Knox, 2011). One of the assumptions is depicted in the Kantian idea of autonomous individual. The law often treats individual appellants as having full agency regarding their opponents in a lawsuit. They can make decisions based on reasons separate from social, economic or political restraints. The CLS asserts that individuals are tied to their social and economic class, communities, race, gender and other status of life so that they cannot be autonomous as assumed by the law. Therefore, their status in the society determines and limits the choices presented to them by the law (Butler, 2009). Every individual is not free. An individual is determined to a greater extent by the social and political structures in their environment. The legal intervention in human rights, intellectual property law, criminal law, jurisprudence, property and international law has indicated the need for development of these discourses within the legal system (Boyle, 1992).
Neutrality and Objectivity of the Law
The thesis developed by the CLS scholars refutes the claim that conventional legal scholarship provides rules and principles of the law that are used to guide human behavior. According to the CLS, a proposition by positivism and formalism suggesting that the law is a system of rule that is rational in nature is not true (Kumar, 2007). The conventional legal scholarship treats the law as a neutral and objective tool in the legal, political, social and economic contexts. However, the CLS refutes the idea that the law is objective. In their support to the argument, the CLS scholars claim that human and social realities always present themselves together in the legal debates (Golder, 2006). The law subjected on an individual has more attachments to the individual’s relationship with the society than to his/her autonomy. The societal norms in a person’s residential context determine whether or not he/she has violated the law. What is legally right in one social context may be legally wrong in another context.
Influence of Democratic and Economic Ideologies on the Law
Roberto Unger, a lecturer at Harvard Law School, is widely regarded as the movement’s intellectual leader. He currently offers the public a short explanation in which he gives ideas that are more descriptive in nature. He provides the most ambitious and impressive ideas about the CLS ideology. His statements are crafted in a sequential manner with ideas interlocked in a chain of explanations. According to Unger, there are two distinct stages in the role the law plays in the Western social contexts before the contemporary era (Butler, 2009). Before the modern era, the law was used to establish and defend the social affluent and class divisions. Nevertheless, in the late 18th century, the law was put up for a revolutionary task in order to protect the human rights irrespective of their social status (Kumar, 2007). The founding fathers of the United States used democratic ideology to create public law and the Constitution. They also used economic ideology to adopt private and contract laws to establish forms and limits to those human rights. However, the context under which the law of the United States had operated by the 20th century dramatically changed. The social rearrangements sanctioned by the prevailing law included several hierarchies of economic powers. This includes malicious social distinctions protected as rights by the very legal system that created it in the name of freedom and equality (Boyle, 1992). The democratic politics and blind forces of the market have proved inadequate to control the modern society, which is dominated by science and technology (Knox, 2011). Therefore, the CLS argues that there is a compelling need to restructure the current social order so as to establish the law in a manner that it becomes compatible with the proclaimed freedom and equality. According the CLS scholars, the best way to accomplish the reconstruction of the law is through the traditional revolution advocated by Marx (Kumar, 2007). This would bring about a constructive alliance between the disaffected affluent and the oppressed.
Even though the critical legal studies have not realized serious considerations in the legal context, this movement has had a practical impact on legal education. The CLS continues to provide diverse collections of thoughts and arguments into legal education (Kumar, 2007). It constitutes an extremely large group of scholars who bring clusters of critical theories into legal education systems. These include such law schools as Harvard Law School, University of Melbourne, University of London, Georgetown University Law Center, and University of Glasgow, among others (Butler, 2009). However, the influence and prominence of the CLS in the United States legal academy has decreased in the recent years.