Critical Legal Studies

Critical legal studies (CLS) started as a revolutionary theory and later turned into a movement. It confronts, and seeks to revolutionize, the accepted standards and norms of legal practice and theory. CLS strives to fundamentally change the accepted norm of jurisprudence, claiming it is an irrational system that makes possible and supports an unfair political system.

Scholars of CLS try to undermine totally the law's claimed position as determinate, neutral and objective. In their view, the establishment uses the law itself as a means of maintaining power and dominance over an imbalanced status quo. CLS makes no secret of its leftward politic leanings. The movement wants to overthrow both the political and philosophical hegemony in what it labels an unfair society. It puts forward both a theoretical and practical plan of rebuilding the legal and social system.

According to CLS, the rich and powerful in the upper levels of society use the law as an oppressive tool, so that they can continue to preserve their elitist position in the hierarchy. They justify their actions by hiding behind the laws they helped create. The idea behind critical legal studies is that the law does not encompass neutrality and is not free of values. Many in the CLS movement want to revolutionize the dominating hierarchical frameworks that exist in modern society and want to use law as a vehicle in achieving that goal. The Critical Legal Studies organization was formed to further this cause as well as that of its membership.

At a convention at the University of Wisconsin-Madison in 1977, CLS was officially founded. Its origins can be traced to 1960, when many of its first members joined social activism organizations, such as the civil rights and anti-Vietnam War movements. Many of the early CLS scholars started studying law and began applying the ideas, philosophies and theories of postmodernity to their legal studies. They were eclectic in their taking from fields as disparate as political philosophy, social theory, literary theory and economics. Since its inception, CLS has grown continuously in its influence and has permanently shifted the topography of legal theory.

CLS has been considerably influenced by philosophers from European schools. They include famous German theorists such as Karl Marx, Friedrich Engels, Max Weber, Herbert Marcuse and Max Horkheimer. CLS owes a debt to a legal doctrine that blossomed in the 1920s and 1930s, known as legal realism. As with CLS scholars, legal realists agitated against the accepted legal ideologies of their time and encouraged more attention to be paid to the social aspects of the law.

CLS includes a number of subgroups that have fundamentally different and even conflicting ideas. Some of them are feminist legal theory, which studies the place that gender plays in the law; critical race theory, which concerns itself with the aspect of race in law; postmodernism, a critical study of the law in a schema that is related to an emerging literary theory; as well as a subcategory that stresses political economy and the economic framework of legal issues and decisions.

Critical legal studies scholars dispute the supposition of the indeterminacy of law. They contend that by using of legal arguments it is even possible to arrive at completely opposing conclusions. Rather than any overarching plan of legal reasoning, any conclusions drawn can owe more to the social context in which they are pleaded and judged. They also argue that the convolutions of legal reasoning cast a shadow over any indeterminacy of the law. They have borrowed from the work of French philosopher Jacques Derrida concerning language to use deconstructionist principles. These can be use to delve into the interpretations of legal texts.

Remaining consistent to their leftward political stance, CLS scholars are not satisfied with the established legal and political hegemony. This is seen especially in their attitude to liberalism, which they view as the dominant political ideology. They show how liberalism categorizes the world into dualities -- male-female, subjective-objective, public-private, individual-community, and so on. They have especially strong objections to capitalism, and see liberalism as capitalism's greatest apologist.

Selected full-text books and articles on this topic

Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law
Brian Z. Tamanaha.
Oxford University Press, 1999
Beyond All Reason: The Radical Assault on Truth in American Law
Daniel A. Farber; Suzanna Sherry.
Oxford University Press, 1997
Legal Memories and Amnesias in America's Rhetorical Culture
Marouf Hasian Jr.
Westview Press, 2000
Critical Legal Studies: A Guide to the Literature
Richard W. Bauman.
Westview Press, 1996
Deconstructive Arguments in the Legal Sphere: An Analysis of the Fischl/Massey Debate about Critical Legal Studies
Bruschke, Jon.
Argumentation and Advocacy, Vol. 32, No. 1, Summer 1995
PEER-REVIEWED PERIODICAL
Peer-reviewed publications on Questia are publications containing articles which were subject to evaluation for accuracy and substance by professional peers of the article's author(s).
Legal Theory at the End of the Millennium
M. D. A. Freeman.
Oxford University Press, 1998
Librarian’s tip: "Some Jurisprudential Foundations of Critical Legal Studies and Feminist Legal Theory" begins on p. 533
Patterns of American Jurisprudence
Neil Duxbury.
Clarendon Press, 1997
Librarian’s tip: Chap. 6 "Uses of Critique"
In Defense of a Political Court
Terri Jennings Peretti.
Princeton University Press, 1999
Librarian’s tip: Chap. 2 "Constitutional Indeterminacy and Judicial Subjectivity: Critical Legal Studies"
Jurisprudence: Theory and Context
Brian Bix.
Westview Press, 1996
Librarian’s tip: Discussion of critical legal studies begins on p. 181
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