18-11-2010 Critical Legal Studies - Knowledge and …

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 teachers—identified with Harvard,
Wisconsin, Buffalo, and Stanford but also including scholars from many other schools—who 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 revival 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 Dworkin—jurisprudential positions that CLS usually
lumped together as “liberal legalism”—as well as to the rise of the law and economics movement in the late 1960s. CLS
scholars drew from an extremely diverse range of intellectual sources, including classic European Marxism, the neo-Marxism
of Antonio Gramsci and György Lukács, the existential Marxism of Jean-Paul Sartre, the revived critical theory of Jürgen
Habermas and Herbert Marcuse, the structuralism of Claude Lévi-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 first—the indeterminacy thesis—holds 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. The indeterminacy thesis was offered in opposition to liberal legalism’s claim that legal doctrine was determinate
and so yielded only one, or one best, answer to any contested proposition.

The second assertion—the critique of rights—holds 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 legalism’s 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 in
the phrase “law is politics,” which conveys 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
assertion—legitimation—which holds that legal doctrine and process, rather than being in opposition to political process, as
liberal legalism asserted, are better viewed 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 rule—the 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 denied
there 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

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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): 1049–1119.

Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buffalo Law Review 28 (1979): 205–382.

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

Mark Tushnet, “Critical Legal Studies: A Political History,” Y ale Law Journal 100 (1991): 1515–244.

Neil Duxbury, Patterns of American Jurisprudence, 1995.

John Henry Schlegel

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