Critical Legal Studies and the Denial of Law
Democratic proceduralism seemed a promising solution to the problems of the role of judicial review and the methods of constitutional interpretation. By limiting themselves to the task of assuring that the political process is genuinely democratic, open, and fair, the proceduralist argued, judges exercising judicial review could provide an important political function while at the same time not overstepping the bounds of their legitimate authority. So like original intent, democratic proceduralism also sought to develop a conception of constitutional interpretation and judicial review in which judges would eschew their own moral views; but instead of deference to the historical intentions of the framers, proceduralism proposed that judges leave controversial moral judgments to the democratic process.
But both originalism and democratic proceduralism failed, I have argued, to provide a workable, attractive conception of judicial review. Given those failures, we are left with two options. One possibility (to be discussed in the last two chapters) is to construct an interpretive theory that avoids the criticisms of judicial activism that motivate originalism and proceduralism. The second option, discussed here in the context of Critical Legal Studies, is in a sense more radical because it rejects as unworkable all attempts to provide a theory of constitutional interpretation that will guide judges to make sound decisions.
Critical Legal Studies, or CLS as it is often termed, is an important, controversial theory that has emerged in recent years. It poses a challenge to constitutional theory at a number of points, arguing that law is contradictory and incoherent and that the "rule of law" is a myth. Judges are not, claims CLS, constrained either by precedents or by concepts but instead may roam freely across the judicial landscape, reaching whatever decision on whatever theoretical base they choose. In that sense, CLS can be understood not simply as another interpretive theory, competing on the same plane with the two I have discussed, but as an attack on the possibility of such theories at all. That is not to say, however, that CLS has nothing to say about constitutional interpretation -- only that it denies the claim