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THE CRITICAL LEGAL STUDIES MOVEMENT

The critical legal studies (CLS) movement is a vibrant if controversial addition to the ongoing jurisprudential debate on law, legal education, and the role of lawyers in society (Belliotti, 1992:162—189; Kennedy, 2007; Kramer, 1995; Tushnet, 2008). It comprises some exciting sociolegal scholarship around, with one sociolegal scholar describing it as being “where the action is” (Trubek, 1984). The movement began with a group ofjunior faculty members and law students at Yale in the late 1960s. In 1977, the group organized itself into the Conference on Critical Legal Studies, which reached several hundred members and held an annual conference for many years.

Greatly influenced by Marxist-inspired European theorists, CLS’s roots can be traced back to American legal realism (Tomasic, 1985). Legal realists in the 1920s and 1930s argued against the nineteenth-century belief that the rule of law was supreme. Noting that a good lawyer could argue convincingly either side of a given case, legal realists said there was actually nothing about the law that made any judicial decision inevitable. Rather, they pointed out, the outcome of a case depended largely, if not entirely, on the predilections of the judge who happened to be deciding it. Thus, far from being a science, the realists argued, law was virtually inseparable from politics, economics, and culture. They rejected the idea that law is above politics and economics.

Reflecting this general legal realist understanding, CLS proponents reject the idea that there is anything distinctly legal about legal reasoning. As with any other kind of analysis, legal reasoning, they maintain, cannot operate independently of the personal biases of lawyers or judges, or of the social context in which they are acting (Bankowski and MacLean, 2007). Furthermore, law is so contradictory that it allows the context of a case to determine the outcome. That attribute of law—its inability to cover all situations—is called indeterminacy (Trubek, 1984). Because law consists of a variety of contradictions and inconsistencies, judicial decisions cannot be the self-contained models of reasoning as they claim to be. Decisions rest on grounds outside of formal legal doctrine, which are inevitably political.

CLS scholars also reject law as being value-free and above political, economic, and social considerations. Laws only seem neutral and independent, even those that reflect the dominant values in society. Moreover, laws legitimize those values that predominate in society. Therefore, laws legitimate the status quo. CLS scholars maintain that law is actually part of the system of power in society rather than a protection against it.

CLS arguments generated a good deal of criticism after the movement began (Schwartz, 1984). The movement was called Marxist, utopian, hostile to rules, and incoherent.

Critical legal scholars were accused of favoring violence over bargaining, of advocating the inculcation of leftist values in legal education, of advancing a nihilistic understanding of law, and of teaching cynicism to their students. One critic even said that nihilist law teachers with a proclivity for revolution are likely to train criminals and, they have, therefore “an ethical duty to depart from law school” (Carrington, 1984:227). Although both the CLS movement and criticism of it have faded somewhat during this century, CLS views remind us that law may not be as purely logical and unbiased as traditional legal scholarship assumes.

 
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