Critical Legal Studies

CRITICAL LEGAL STUDIES. A political-intellectual movement in legal thought, Critical Legal Studies took root in US law schools in the late 1970s. Its original proponents had been influenced by the experience of the anti-war and particularly the civil rights movements, where appeals to legality played an important part in assisting organizing efforts and were sometimes successful in the courts. Most of its proponents found the formulations of classical Marxism attractive but ultimately unsatisfyingly rigid, and an important theme in some works is the importance of abandoning grand social theories in favor of close attention to the details of particular historical moments.

Critical legal studies focuses on several propositions, though they are not all linked together in a tight logical unit: (1) Law is rife with contradictions. In particular, law attempts to express both our fear of and our dependence upon other people. At any single time, individual legal rules may subordinate one pole of the contradiction to the other. But other legal rules will reverse the hierarchy, and over time even the rules dealing with a single topic may flip from preferring one pole to preferring the other. (2) As a result, law is indeterminate, at least in any socially significant case. No single legal outcome or rule is required to the exclusion of other, often radically different, outcomes or rules. (3) When people assert that the law requires some result, several things might be going on: (a) If the people are members of the dominant class, they are attempting to construct a coherent ideological universe in which their positions of power are seen to be both justified and inevitable, (b) If they are members of subordinate classes, they may be deceiving themselves, making their lives more bearable by persuading themselves that there is nothing that can be done about their circumstances, (c) Or, more important, they may be appealing to the currently subordinated pole of the contradictions inherent in law. When they do so, appeals to legality take on a valuable Utopian cast by demonstrating that within the present forms of law there are opportunities for radical change.

By the end of the 1980s, critical legal studies became a persistent irritant to mainstream legal thought, which responded by attempting to domesticate weaker versions of the ideal of indeterminacy while rejecting the other themes in critical legal studies, and by using traditional forms of Red-baiting and job-related penalties. In the 1990s the critical legal studies movement became associated with Left “identity politics” groups. Meetings of “critical networks” drew together left-leaning law professors and students in efforts to connect their political activities to the sort of intellectual program that academics found both attractive and necessary. Responding to criticisms from some identity politics groups interested in legal reform strategies, proponents of critical legal studies were persuaded that some of their more severe critiques of law as such were overstated. The harder edges of critical legal studies softened, easing its assimilation into the legal academy.

At the opening of the twenty-first century, critical legal studies complemented the scholarly and political work in the developing fields of critical race theory and critical feminist theory. Its ties with the Left strengthened with the appearance of the online journal Unbound: Harvard Journal of the Legal Left, which affiliated with the Harvard Law School and community-best lawyers and legal activists. The journal opened in 2005 with an embrace of politics as intrinsic to legal studies and practice and social identity as inherently political. Topics address ranged far to include US imperialism, psychoanalysis, unions, property rights, and violence among others. In 2008, the University of Idaho College of Law began a similarly-intended publication, A Critical Legal Studies Journal, which also took up such topics as identity, same-sex marriage, human rights, and terrorism, although without a specifically Left orientation. Still basic to critical legal studies was the disavowing of political neutrality with regard to the law and activist legal practice.

Kelman, Mark. A Guide to Critical Legal Studies. Cambridge, Mass.: Harvard University Press, 1987.

Tushnet, Mark. Red, White, and Blue: A Critical Analysis of Constitutional Law. Cambridge, Mass.: Harvard University Press, 1988.

Unger, Roberto Mangabeira. The Critical Legal Studies Movement: Another Time, A Greater Task. New York: Verso, 2015.