8/8/2019 Critical Legal Studies - Knowledge and Politics, The Politics of Law_ a Progressive Critique, Patterns of American Juri

1/2

Knowledge and Politics, The Politics of Law: A Progressive Critique, Patterns of American Jurisprudence

(CLS) is best understood both as a movement in legal thought and as a group of law teachersidentified with Harvard,

Wisconsin, Buffalo, and Stanford but also including scholars from many other schoolswho are associated with the Conference

on Critical Legal Studies. Individuals whose work is often identified with CLS include Richard Abel, C. Edwin Baker, Gary Bellow, James Boyle, Kenneth Casebeer, Jean Charn, Anthony Chase, Clare Dalton, Jay Feinman, Michael Fischl, Alan

Freeman, Gerald Frug, Mary Jo Frug, Peter Gabel, Robert Gordon, Thomas Heller, Wythe Holt, Morton Horwitz, Alan Hyde,

David Kairys, Al Katz, Mark Kelman, David Kennedy, Duncan Kennedy, Karl Klare, Elizabeth Mensch, Gary Minda, Frances

Olsen, Gary Peller, Joel Rogers, Rand Rosenblatt, John Henry Schlegel, William Simon, Joseph Singer, Kathy Stone, David

Trubek, Mark Tushnet, and Roberto Unger.

First coming to the attention of legal scholars in the mid-1970s and often seen as a rev ival of American legal realism , CLS is

better understood as a reaction by the political left to the legal-process jurisprudence dominant in law schools through the

1970s and to the focus on rights associated with the work of Ronald Dworkinjurisprudential positions that CLS usually

lumped together as liberal legalismas well as to the rise of the law and economics movement in the late 1960s. CLSscholars drew from an extremely diverse range of intellectual sources, including classic European Marxism, the neo-Marx ism

of Antonio Gramsci and Gyrgy Lukcs, the existential Marxism of Jean-Paul Sartre, the revived critical theory of Jrgen

Habermas and Herbert Marcuse, the structuralism of Claude Lvi-Strauss and Ferdinand de Saussure, the post-structuralism

of Michel Foucault, the deconstructionism of Jacques Derrida, the anti-foundationalism of Thomas Kuhn and Richard Rorty,

and the historical scholarship of E. P. Thompson.

Critical legal studies is best known for four assertions. The firstthe indeterminacy thesisholds that law, as a structure of

binary opposites, always allows two opposed conclusions in any significantly litigated case. This binary opposition was often

seen as pitting individualistic considerations, the claim of the liberal self to protection from community demands for conformity

with its values, against altruistic considerations, the claim of the community to solidarity among its members in the pursuit of its interests. T he indeterminacy thesis was offered in opposition to liberal legalisms claim that legal doctrine was determinate

and so yielded only one, or one best, answer to any contested proposition.

The second assertionthe critique of rightsholds that, since legal doctrine does not provide determinate answers in

contested cases, the choice of individuals to rely on rights for protection from the actions of others or of the state is based on a

false hope, because rights can and will be manipulated in the interest of the dominant forces in a given society. The critique of

rights was offered in opposition to liberal legalisms claim that the New Deal and the civil rights revolution had provided

significant protection for the interests of workers and African Americans.

Both assertions were buttressed with research into legal doctrine, contemporary and historical. They were drawn together inthe phrase law is politics, which convey s the idea that the choices always available in legal doctrine make it possible, indeed

inevitable, that the results in individual cases will reflect not the neutral application of correct legal policy but rather the

same range of considerations regularly brought to bear in partisan political dispute. From this understanding came a third

assertionlegitimationwhich holds that legal doctrine and process, rather than being in opposition to political process, as

liberal legalism asserted, are better v iewed as a practice of legitimation designed to affirm the inevitability and

disinterestedness of partisan choices to favor individual interests, choices that are in fact neither inevitable nor disinterested.

A fourth assertion of CLS was directed not at liberal legalism but at the claim by scholars in the law and economics movement

that economic analysis regularly identified the most efficient legal rulethe outcome that secured the maximum of consumer

welfare at the lowest possible cost. Here CLS relied on the work of the Columbia law professor Robert Lee Hale (who deniedthere was anything that could qualify as the free market) to support two assertions. First, CLS argued that efficiency is not a

concept endogenous to law by which legal results could be measured but is simply the set of economic results that the market

produces given any particular set of legal rights and any set of initial entitlements. Second, and somewhat contradictorily, CLS

argued that the concept of efficiency was no more determinate than any legal concept, so that buried within it were the

18-11-2010 Critical Legal Studies - Knowledge and

jrank.org//Critical-Legal-Studies.html 1/2

8/8/2019 Critical Legal Studies - Knowledge and Politics, The Politics of Law_ a Progressive Critique, Patterns of American Juri

2/2

outcomes purportedly derived from economic analysis.

Critical legal studies brought forth significant negative reaction from within the legal academy. Though some reactions were

directed at the accuracy of the scholarship and others at its occasionally polemical tone, most simply reflected hostility to the

notion that, given no theoretical difference between law and politics , law was not directed toward securing a definable public

interest. While some of this opposition called for members of the group to leave the legal academy, most centered on the

assertion that CLS did not present actual proposals for reform of law and legal institutions. This claim ignored the positive

proposals CLS did offer by dismissing them as vague or impractical.

After about fifteen years, critical legal studies died out as a force in legal thought. Several factors contributed to its death.

First, most major voices of the CLS movement were opposed to conscious action directed toward building an intellectual

program. Second, CLS never succeeded in offering additional insights about law that built on the indeterminacy thesis, the

critique of rights, and legitimation. Third, CLS was politically unable to respond to critiques offered by scholars who later

created the feminist law movement and critical race theory and, in trying to accommodate both, CLS lost its distinctive voice.

Finally, as a result of the hostility the group engendered, younger adherents of CLS had some difficulty getting hired and

tenured.

See also Jurisprudence, American ; Law and Society Movement

Bibliography and More Information about Critical Legal Studies

Roberto Mangabeira Unger, Knowledge and Politics , 1975.

Alan Freeman, Legitimating Racial Discrimination through Anti-Discrimination Law, Minnesota Law Review 62

(1978): 10491119.

Duncan Kennedy, The Structure of Blackstones Commentaries, Buffalo Law Review 28 (1979): 205382.

David Kairys, ed., The Politics of Law: A Progressive Critique , 1982.

Mark Tushnet, Critical Legal Studies: A Political History, Yale Law Journal 100 (1991): 1515244.

Neil Duxbury, Patterns of American Jurisprudence , 1995.

John Henry Schlegel

Citing this material

Please include a link to this page if you have found this material useful for research or writing a related article. Content on this website is from high-quality, licensed material originally published in print form. You can always be sure y ou're readingunbiased, factual, and accurate information.

Highlight the text below, right-click, and select copy. Paste the link into your website , email, or any other HTML document.

Critical Legal Studies - Knowledge andPolitics, The Politics of Law: A Progressive Critique, Patterns of American Jurisprudence

User Comments

Copyright 201 0 Net Ind ustries and its Licensors Al l Righ ts Reserved Terms of Use

18-11-2010 Critical Legal Studies - Knowledge and

jrank.org//Critical-Legal-Studies.html 2/2