Critical legal theory

critical legal studies: an overview

Critical legal studies (CLS) is a theory that challenges and overturns accepted norms and standards in legal theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea of CLS is that the law is politics and it is not neutral or value free. Many in the CLS movement want to overturn the hierarchical structures of domination in the modern society and many of them have focused on the law as a tool in achieving this goal. CLS is also a membership organization that seeks to advance its own cause and that of its members.

CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights movement and the Vietnam War. Many CLS scholars entered law school in those years and began to apply the ideas, theories, and philosophies of post modernity (intellectual movements of the last half of the twentieth century) to the study of law. They borrowed from such diverse fields as social theory, political philosophy, economics, and literary theory. Since then CLS has steadily grown in influence and permanently changed the landscape of legal theory. Among noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon.

Although CLS has been largely a U.S. movement, it was influenced to a great extent by European philosophers, such as nineteenth-century German social theorists Karl Marx, Friedrich Engels, and Max Weber; Max Horkheimer and Herbert Marcuse of the Frankfurt school of German social philosophy; the Italian marxist Antonio Gramsci; and poststructuralist French thinkers Michel Foucault and Jacques Derrida, representing respectively the fields of history and literary theory. CLS has borrowed heavily from Legal Realism, the school of legal thought that flourished in the 1920s and 1930s. Like CLS scholars, legal realists rebelled against accepted legal theories of the day and urged more attention to the social context of the law.

CLS includes several subgroups with fundamentally different, even contradictory, views: feminist legal theory, which examines the role of gender in the law; critical race theory (CRT), which is concerned with the role of race in the law; postmodernism, a critique of the law influenced by developments in literary theory; and a subcategory that emphasizes political economy and the economic context of legal decisions and issues.