Critical legal studies ( CLS ) is a school of critical theory that developed in the United States during the 1970s. CLS adherents claim that laws are devised to maintain the status quo of society and thereby codify its biases against marginalized groups .
65-679: The Critical Legal Conference ( CLC ) is an annual critical legal theory conference which gathers a community of critical legal theoreticians and activists. Along with the Conference on Critical Legal Studies in America, and Critique du Droit in France it contributed to the formation of critical legal theory as a movement and field. The conference is based in the UK but it has also been held in India, Finland and Ireland. It
130-492: A "decisive blow" to legal realism, by attacking the predictive theory of law that many realists had taken over from Holmes. Hart pointed out that if a law is just a prediction of what courts will do, a judge pondering the legal merits of a case before him is really asking, "How will I decide this case?" As Hart notes, this completely misses the fact that judges use legal rules to guide their decisions, not as data to predict their eventual holdings. Many critics have claimed that
195-584: A Sociology of the Juridical Field", in the Hastings Law Journal (1987). It heralded the beginning of continental Critical Legal Studies. Critical legal studies had its intellectual origins in the American legal realist movement in the 1930s. Prior to the 1930s, American jurisprudence had been dominated by a formalist account of how courts decide cases, an account which held that judges decide cases on
260-402: A better way of predicting how judges would behave than relying on the reasons given by judges. A theory of law and legal reasoning that arose in the early decades of the twentieth century is broadly characterized by the claim that law can be best understood by focusing on what judges actually do in deciding cases, rather than on what they say they are doing. The central target of legal realism
325-429: A brutal and amoral conflict." Such members were seen as the most powerful voices and the only way forward for the movement. Unger and other members of the movement continue to try to develop it in new directions, e.g., to make legal analysis the basis of developing institutional alternatives. Although the intellectual origins of the critical legal studies (CLS) can be generally traced to American legal realism , as
390-518: A cohesive intellectual force in the 1920s, it drew heavily upon a number of prior thinkers and was influenced by broader cultural forces. In the early years of the twentieth century, formalist approaches to the law had been forcefully criticized by thinkers such as Roscoe Pound , John Chipman Gray , and Benjamin Cardozo . Philosophers such as John Dewey had held up empirical science as a model of all intelligent inquiry, and argued that law should be seen as
455-456: A critical legal theory based LLM at Birkbeck's School of Law. Various research centers and institutions offer CLS-based taught and research courses in a variety of legal fields including human rights, jurisprudence, constitutional theory and criminal justice. In New Zealand , the University of Otago Legal Issues Centre was established at the university's law faculty in 2007. Law and Critique
520-418: A distinct scholarly movement CLS fully emerged only in the late 1970s. Many first-wave American CLS scholars entered legal education, having been profoundly influenced by the experiences of the civil rights movement, women's rights movement, and the anti-war movement of the 1960s and 1970s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards
585-505: A diverse collection of schools of thought and social movements. The CLS community is an extremely broad group with clusters of critical theorists at law schools and socio-legal studies departments such as Harvard Law School , Georgetown University Law Center , Northeastern University , University at Buffalo , Chicago-Kent College of Law , Birkbeck, University of London , University of New South Wales , University of Melbourne , University of Kent , Carleton University , Keele University ,
650-466: A fixed, impartial foundation." Contemporary legal scholars working within the Law and Society tradition have expanded upon the foundations set by legal realism to postulate what has been referred to as new legal realism . As a form of jurisprudence, legal realism is defined by its focus on the law as it actually exists in practice, rather than how it exists in books. To this end, it was primarily concerned with
715-410: A key member of critical legal studies whose influence had continued to be far-reaching in the decades following the movement's decline, has written that the founders of critical legal studies "never meant it to become an ongoing school of thought or genre of writing. They wanted to intervene in a particular circumstance ..." That circumstance was the dominant practice of legal analysis which Unger calls
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#1732891520820780-595: A means to explore alternative forms of social and political organization. In accordance with the Critical rationalism the German jurist Reinhold Zippelius uses Popper's method of "trial and error" in his 'Legal Philosophy'. Although the CLS (like most schools and movements) has not produced a single, monolithic body of thought, several common themes can be generally traced in its adherents' works. These include: Increasingly, however,
845-430: A practical instrument for advancing human welfare. Outside the realm of law, in fields such as economics and history, there was a general "revolt against formalism," a reaction in favor of more empirical ways of doing philosophy and the human sciences. But by far the most important intellectual influence on the legal realists was the thought of the American jurist and Supreme Court Justice Oliver Wendell Holmes Jr. Holmes
910-414: A prescriptive system that judges gradually uncover by reasoning through the policies and principles of law without questioning the "basic institutional arrangements of the market economy, of democratic politics, and of civil society outside the market and the state". Reasoned elaboration was a pernicious influence for several reasons, Unger and others argued: it de-emphasized the contingent nature of law as
975-467: A product of deals and compromise, instead treating it as containing a coherent prescriptive system that needed simply to be uncovered by legal interpretation; it obscured how judges usurp authority by denying their own role in making law; and finally, reasoned elaboration inhibited the use of law as a mechanism of social change. In addition to the context of legal interpretation, critical legal studies also emerged in response to its political context, namely
1040-484: A setting in which the social-democratic settlement that was finalized after World War II had become canonical, and active dispute over the organization of society severely declined, effectively enshrining a reigning consensus about social organization that Unger describes as including a "combination of neoliberal orthodoxy, state capitalism, and compensatory redistribution by tax and transfer." Critical legal scholars challenged that consensus and sought to use legal theory as
1105-624: A similar time as its American counterpart. However, it centered around a number of conferences held annually, particularly the Critical Legal Conference and the National Critical Lawyers Group. There remain a number of fault lines in the community; between theory and practice, between those who look to Marxism and those who worked on Deconstruction , between those who look to explicitly political engagements and those who work in aesthetics and ethics. In France, where
1170-466: Is no organization. The conference was and remains just that: a conference and an umbrella name. We could call the CLC ‘a community always to come’, a broad church that exists for three days once every year in its gathering and ceases existing once it is over. Every September the place for the next conference is decided and people bid their good-byes for another year, leaving it to the next organiser to put together
1235-408: Is a naturalistic approach to law ; it is the view that jurisprudence should emulate the methods of natural science ; that is, it should rely on empirical evidence . Hypotheses must be tested against observations of the world. Legal realists believe that legal science should only investigate law with the value-free methods of natural sciences, rather than through philosophical inquiries into
1300-416: Is a towering figure in American legal thought for many reasons, but what the realists drew most from Holmes was his famous prediction theory of law , his utilitarian approach to legal reasoning, and his "realist" insistence that judges, in deciding cases, are not deducing legal conclusions with inexorable, machine-like logic, but are influenced by ideas of fairness, public policy, prejudices, and experience. In
1365-514: Is associated with the critical legal studies (CLS) movement and loosely associated with the journal Law & Critique . Despite the putative association with American CLS, Costas Douzinas , who has been closely involved with the British CLC from its outset, has argued that their ethos are very different. American CLS was intellectually focused on the "critique of the judicial institutions and reasoning" while its politics "were largely exhausted in
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#17328915208201430-515: Is not a theory. It’s basically this literature produced by this network of people. I think you can identify some themes of the literature, themes that have changed over time. Scholars affiliated with critical legal studies often identified with the movement in several ways: by including in their articles an opening footnote mentioning the Conference on Critical Legal Studies and providing the organization's contact information, by attending conferences of
1495-780: Is one of the few UK journals that specifically identifies itself with critical legal theory. In America, The Crit and Unbound: Harvard Journal of the Legal Left are the only journals that continue to explicitly position themselves as platforms for critical legal studies. However, other journals such as Law, Culture and the Humanities , the Harvard Civil Rights-Civil Liberties Law Review , The National Lawyers Guild Review , Social and Legal Studies , and The Australian Feminist Law Journal all published avowedly critical legal research. The stance "law
1560-469: Is politics" of Critical legal studies has been criticized for rejecting the distinction between political argument and legal argument. Critical legal studies has been criticized as attacking the rule of law and separation of powers . The indeterminacy thesis stance by Critical legal studies has been criticized to not distinguish between the strong and weak indeterminacy thesis. The strong indeterminancy thesis has been argued by some to be incorrect due to
1625-461: Is widely accepted that law is not, and cannot be, an exact science, and that it is important to examine what judges are actually doing in deciding cases, not merely what they say they are doing. As ongoing debates about judicial activism and judicial restraint attest, legal scholars continue to disagree about when, if ever, it is legitimate for judges to "make law", as opposed to merely "following" or "applying" existing law. But few would disagree with
1690-556: The Roosevelt administration . Notable jurists associated with legal realism include Felix Cohen , Morris Cohen , Arthur Corbin , Walter Wheeler Cook, Robert Hale , Wesley Hohfeld , Karl Llewellyn , Underhill Moore , Herman Oliphant and Warren Seavey, many of whom were associated with Yale Law School . As Keith Bybee argues, "legal realism exposed the role played by politics in judicial decision-making and, in doing so, called into question conventional efforts to anchor judicial power on
1755-507: The University of Glasgow , the University of East London among others. In the American legal academy its influence and prominence seems to have waned in recent years. However, offshoots of CLS, including critical race theory continue to grow in popularity. Associated schools of thought, such as fem-crit, contemporary feminist theory and ecofeminism and critical race theory now play a major role in contemporary legal scholarship. An impressive stream of CLS-style writings has also emerged in
1820-466: The "method of reasoned elaboration". A close descendant of nineteenth-century doctrinal formalism, which sought through legal analysis to identify the "inbuilt legal content of a ... free society", the method of reasoned elaboration treated law materials as containing an "ideal element", an inherent legal substance underlying the contradictions and ambiguities in the law's text. Under the practice of reasoned elaboration, this inherent legal substance forms
1885-739: The CCLS, and by citing the work of fellow critical legal studies scholars. A 1984 bibliography of CLS works, compiled by Duncan Kennedy and Karl Klare and published in the Yale Law Journal , included dozens of authors and hundreds of works. A 2011 collection of four volumes edited by Costas Douzinas and Colin Perrin, with the assistance of J-M Barreto, compiles the work of the British Critical Legal Studies, including their philosophical mentors. It showcases scholarship elaborated since its origins in
1950-514: The Civil War, this conception of adjudication as a form of social engineering had been widely shared by American judges, but in the late nineteenth century it had fallen out of favor. One of the aspirations of both Holmes and the realists was to revive it. For example, in his dissent in Southern Pacific Co. v. Jensen , Holmes wrote, "The common law is not a brooding omnipresence in the sky, but
2015-644: The West. According to CLS scholars Duncan Kennedy and Karl Klare, critical legal studies was "concerned with the relationship of legal scholarship and practice to the struggle to create a more humane, egalitarian, and democratic society." During its period of peak influence, the critical legal studies movement caused considerable controversy within the legal academy. Members such as Roberto Mangabeira Unger have sought to rebuild these institutions as "fragmentary and imperfect expressions of an imaginative scheme of human coexistence rather than just as provisional truce lines in
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2080-407: The actions of judges and the factors that influenced processes of judicial decision making. As Karl Llewellyn argues, “[b]ehind decisions stand judges; judges are men; as men they have human backgrounds.” The law, therefore, did not exist in a metaphysical realm of fundamental rules or principles, but was inseparable from human action and the power of judges to determine the law. In order to understand
2145-586: The articulate voice of some sovereign ... that can be identified," thereby arguing in favor of a pragmatic and more realistic approach to judicial interpretation of common law. Drawing upon Holmes and other critics of legal formalism, a number of iconoclastic legal scholars launched the legal realist movement in the 1920s and 30s. Among the leading legal realists were Karl Llewellyn , Jerome Frank , Herman Oliphant , Underhill Moore , Walter Wheeler Cook, Leon Green , and Felix Cohen . Two American law schools, Yale and Columbia, were hotbeds of realist thought. Realism
2210-439: The basis of distinctly legal rules and reasons that justify a unique result. The legal realists argued that statutory and case law is indeterminate, and that appellate courts decide cases not based upon law, but upon what they deem fair in light of the facts of a case. Considered "the most important jurisprudential movement of the 20th century", American legal realism sent a shock through American legal scholarship by undermining
2275-458: The correct use of legal concepts. Legal realism was primarily a reaction to the legal formalism of the late 19th century and early 20th century and was the dominant approach for much of the early 20th century. It succeeded in its negative aspiration of casting doubt upon formalist assumptions that judges always did what they said, so that it is often said that "we are all realists now." However, realism failed in its positive aspiration of discovering
2340-467: The decisions and actions of legal actors, legal realists turned to the ideas of the social sciences in order to understand the human behavior and relationships that culminated in a given legal outcome. American legal realists believe that there is more to adjudication than the "mechanical" application of known legal principles to uncontroversial fact-finding in line with the arguments of legal formalism . Some realists believe that one can never be sure that
2405-479: The doctrine of stare decisis , it stresses the importance of understanding the factors involved in judicial decision-making. In Scandinavia Axel Hägerström developed another realist tradition that was influential in European jurisprudential circles for most of the 20th century. Legal realism is associated with American jurisprudence during the 1920s and 1930s, particularly among federal judges and lawyers within
2470-433: The dominant legal ideology of modern Western society. Drawing on both domestic theory and the work of European social theorists, the "crits" sought to demystify what they saw as the numerous myths at the heart of mainstream legal thought and practice. The "crits" include Duncan Kennedy , Roberto Unger , Morton Horwitz , Mark Kelman , and Catharine MacKinnon . The British critical legal studies movement started roughly at
2535-446: The existence of easy legal cases where some outcomes cannot be legally correct. Constitutionalism argues that the authority of government is limited by constitutional law ", in contrast to Critical legal studies, which disputes the constraints by constitution. Further information on the title subject, presented in inverse order of date of publication, and alphabetical by author, within year: Legal realism Legal realism
2600-728: The facts and law identified in the judge's reasons were the actual reasons for the judgment, whereas other realists accept that a judge's reasons can often be relied upon, but not always. Realists believe that the legal principles that legal formalism treats as uncontroversial actually hide contentious political and moral choices. Due to their value-free approach, legal realists oppose natural law traditions. Legal realists contend that these traditions are historical and social phenomena and should be explained by psychological and sociological hypotheses, conceiving of legal phenomena as determined by human behavior that should be investigated empirically, rather than according to theoretical assumptions about
2665-425: The formalist tenets that were long considered a bedrock of jurisprudence . The influence of legal realism unsettled American jurisprudence for decades. Alan Hunt writes that the period "between the realism of the 1930s and the emergence of critical legal studies in the late 1970s has been a series of unsuccessful attempts to recover from the shock of realism some basis for a legal theory which articulates an image of
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2730-511: The intrigue of the academy and the endless search for media exposure". If, on the one hand, American CLS was a "political movement with little politics", [t]he British Critical Legal Conference (CLC), on the other hand, is an intellectual movement with lots of politics. The annual CLC started in 1984 and has taken place without interruption ever since. In all these years of operation no officers or posts, chairmen and secretaries, committees or delegates were created. There
2795-427: The last two decades in the areas of international and comparative law. In addition, CLS has had a practical effect on legal education, as it was the inspiration and focus of Georgetown University Law Center's alternative first year curriculum, (Termed "Curriculum B", known as "Section 3" within the school). In the UK both Kent and Birkbeck have sought to draw critical legal insights into the legal curriculum, including
2860-602: The late 1980s in areas such as legal philosophy , literature, psychoanalysis , aesthetics , feminism , gender , sexuality , post-colonialism , race , ethics , politics and human rights . Prominent participants in the CLS movement include Derrick Bell , Drucilla Cornell , Mary Joe Frug , Mark Kelman , Alan Hunt , Catharine MacKinnon , Paul O'Connell, Peter Fitzpatrick, Morton Horwitz , Jack Balkin , Costas Douzinas , Karl Klare , Peter Gabel , Roberto Unger , Renata Salecl , Mark Tushnet , Louis Michael Seidman , John Strawson and Martha Fineman . Roberto Unger,
2925-422: The law". If law is prophecy, Holmes continues, we must reject the view of "text writers" who tell us that law "is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions". Holmes introduced the "bad-man" theory of law: "[I]f we take
2990-454: The law. Realism was treated as a conceptual claim for much of the late 20th century due to H. L. A. Hart 's misunderstanding of the theory. Hart was an analytical legal philosopher who was interested in the conceptual analysis of concepts such as "law." This entailed identifying the necessary and sufficient conditions for the use of the concept of "law." When realists such as Oliver Wendell Holmes Jr. pointed out that individuals embroiled in
3055-432: The legal system generally wanted to know what was going to happen, Hart assumed that they were offering the necessary and sufficient conditions for the use of the concept of "law." Legal theorists tend to recognize that the realists and the conceptual lawyers were interested in different questions. Realists are interested in methods of predicting judges' decisions with more accuracy, whereas conceptual lawyers are interested in
3120-553: The legal tradition had been closely guarded by law faculties and watched over by Napoleonic institutions such as the Court of Cassation , the Conseil d'Etat , and the Ecole Nationale de la Magistrature, famed sociologist Pierre Bourdieu caused an uproar when he released his "La Force de la loi, élements pour une sociologie du champ juridique" in 1986 - translated as "The Force of Law: Toward
3185-409: The main theoretical influences of the early conferences but soon the new radicalism of race, gender, queer and post-colonial theory were introduced in the legal academy through the CLC. Indeed these conferences were the only academic venues in which such themes were discussed for many years before they became respectable and entered, albeit marginally, mainstream academia. The Critical Legal Conference
3250-552: The movement "continued as an organized force only until the late 1980s. Its life as a movement lasted for barely more than a decade." Duncan Kennedy, a Harvard law professor who along with Unger, was one of the key figures in the movement, has said that, in the early days of critical legal studies, "just about everyone in the network was a white male with some interest in 60s style radical politics or radical sentiment of one kind or another. Some came from Marxist backgrounds — some came from democratic reform ." Kennedy has emphasized
3315-477: The movement and its adherents. Considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective," critical legal studies was committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that CLS scholars argued are at the root of liberal legal institutions in
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#17328915208203380-479: The nature and meaning of the law that are separate and distinct from the law as it is actually practiced. Indeed, legal realism asserts that the law cannot be separated from its application, nor can it be understood outside of its application. As such, legal realism emphasizes law as it actually exists, rather than law as it ought to be. Locating the meaning of law in places such as legal opinions issued by judges and their deference to or dismissal of precedent and
3445-456: The objectivity of the legal process, even though the explanation offered by post-realism had to be more complex than that provided by a doctrine of rule-following." The critical legal studies movement emerged in the mid-1970s as a network of leftist law professors in the United States who developed the realist indeterminacy thesis in the service of leftist ideals. According to Roberto Unger,
3510-441: The opening paragraph of The Common Law , he wrote: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies
3575-557: The programme. No honour, power or position attaches to the conference, no promotion preferment or move to better posts follows organisation or participation. There is only an annual conference and people who turn out every year because they love ideas and they are concerned about the role of law in society and their own role within the institution. Over the years, these conferences introduced themes, schools of thought and movements unknown or dismissed by legal scholarship. Western Marxism, postmodernism and deconstruction were
3640-498: The realists exaggerated the extent to which law is "riddled" with gaps, contradictions, and so forth. Other critics, such as Ronald Dworkin and Lon Fuller , have faulted legal realists for their attempt to sharply separate law and morality. Though many aspects of legal realism are now seen as exaggerated or outdated, most legal theorists would agree that the realists were successful in their central ambition: to refute "formalist" or "mechanical" notions of law and legal reasoning. It
3705-507: The realists' core claim that judges (for good or ill) are often strongly influenced by their political beliefs, their personal values, their individual personalities, and other extra-legal factors. A statistical natural language processing method has been applied to automatically predict the outcome of cases tried by the European Court of Human Rights (violation or no violation of a specific article) based on their textual contents, reaching
3770-507: The spirit of pragmatism , Holmes suggests that this is a useful way of laying bare the true meaning of legal concepts. The utilitarian or instrumentalist flavor of "The Path of the Law" also found favor with the realists. The purpose of the law, Holmes insisted, was the deterrence of undesirable social consequences: "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage." Before
3835-512: The story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. All these themes can be found in Holmes's famous 1897 essay, "The Path of the Law". There Holmes attacks formalist approaches to judicial decision-making and states a pragmatic definition of law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by
3900-522: The traditional themes are being superseded by broader and more radical critical insights. Interventions in intellectual property law , human rights , jurisprudence , criminal law , property law , international law , etc., have proved crucial to the development of those discourses. Equally, CLS has introduced new frameworks to the legal field, such as postmodernism , queer theory , literary approaches to law, psychoanalysis , law and aesthetics , and post-colonialism . Critical legal studies continues as
3965-429: The twofold nature of critical legal studies, as both a network of leftist scholar/activists and a scholarly literature: [C]ritical legal studies has two aspects. It’s a scholarly literature and it has also been a network of people who were thinking of themselves as activists in law school politics. Initially, the scholarly literature was produced by the same people who were doing law school activism. Critical legal studies
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#17328915208204030-424: The view of our friend the bad man we shall find that he does not care two straws" about either the morality or the logic of the law. For the bad man, "legal duty" signifies only "a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment". The bad man cares nothing for legal theorizing and concerns himself only with practical consequences. In
4095-531: Was a mood more than it was a cohesive movement, but it is possible to identify a number of common themes. These include: In the 1950s, legal realism was largely supplanted by the legal process movement , which viewed law as a process of "reasoned elaboration" and claimed that appeals to "legislative purpose" and other well-established legal norms could provide objectively correct answers to most legal questions. In his 1961 book The Concept of Law , British legal theorist H. L. A. Hart dealt what many scholars saw as
4160-557: Was established in 1984 and its first annual meeting was held at the University of Kent in 1986. Alan Hunt was the founding chair of the Critical Legal Conference. Critical legal studies Despite wide variation in the opinions of critical legal scholars around the world, there is general consensus regarding the key goals of critical legal studies: The abbreviations " CLS " and " Crit " are sometimes used to refer to
4225-438: Was legal formalism: the classical view that judges don't make law, but mechanically apply it by logically deducing uniquely correct legal conclusions from a set of clear, consistent, and comprehensive legal rules. American legal realism has aptly been described as "the most important indigenous jurisprudential movement in the United States during the twentieth century". Although the American legal realist movement first emerged as
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