critical legal studies (cls) defined
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Critical Legal Studies (CLS) defined*1 Roberto Mangabeira Unger of Harvard Law School in his first book announced that he had discovered "the context of ideas and sentiments within which philosophy and politics must now be practiced." Since that time, he has become a prominent thinker in Critical Legal Studies (CLS), a movement that, in his own words, "has undermined the central ideas of modern legal thought and put another conception of law in their place." CLS was officially started in 1977 at the conference at the University of Wisconsin‐Madison as a revolutionary theory and later turned into a movement. Unger, a leading CLS theorist, has described the law faculty of those days as "a priesthood that had lost their faith and kept their jobs." CLS has steadily grown in influence. Although CLS has been largely a U.S. movement, it was influenced to a great extent by European philosophers, such as Marx, Engels, Weber; Max Horkheimer Herbert Marcuse, Antonio Gramsci, Michel Foucault, Jacques Derrida etc. Besides Unger, some noted CLS theorists includes Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, Karl Klare, and Catharine A. Mackinnon.
CLS is a family of new legal theories share commitments to criticize not merely particular legal rules or outcomes, but larger structures of conventional legal thought and practice. The CLS movement grew from a generation that questioned authority in America. Within this social and political context, the very notion of law was questioned not only in terms of what legal positivist’s have traditionally asked; namely, “What is the law.” , but also asked “what does the law do”?
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: 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.
Dominant Themes of the CLS movement are:
(a) Indeterminacy: Asserts that laws do not by necessity produce specific outcomes (b) Contradiction: rejects the idea that a legal doctrine “contains a single, coherent,
and justifiable view of human relations (c) Legitimation and false consciousness: Law serves the powerful, not in an
immediate and direct way, but instead through “legitmation”. False consciousness is a failure to see the exploitative aspects of the current system.
* Presented by Mr. Chandra Shekhar Khadka, a LL.M. student, Nepal Law Campus, Kathmandu (11 Aug 2015)
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CLS has been defined in different legal literature as;
Black's Law Dictionary : 1. " A school of thought advancing the idea that the legal system perpetuates the status quo in terms of economics, race and gender by using manipulable concept and by creating an imaginary world of social harmony regulated by law. The Marxist wing of this school focuses on socioeconomic issues. Fem‐crits emphasize gender hierarchy, whereas critical race theorist focus on racial subordinations. 2. "The body of work produced by adherents to this school of thought"
Wex Law Dictionary (Cornell University Law School‐Legal Information Institute): "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. 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."
Farlex Inc., Online Legal Dictionary: "CLS is an intellectual movement whose members argue that law is neither neutral nor value free but is in fact inseparable from politics. CLS seeks to fundamentally alter Jurisprudence, exposing it as not a rational system of accumulated wisdom but an ideology that supports and makes possible an unjust political system."
Dr. S.R.Myneni in "Jurisprudence (Legal Theory)" defined CLS movements as: "People pursuing critical approaches to the study of law and society and trying to develop approaches emphasizing the ideological character of legal doctrine and its internal structures."
Wayne Morrison " Jurisprudence: from Greeks to Post‐modernism" defined as: "A post‐positivist enterprise involving (i) a critique of the 'objective' scientific method which is seen to underlie traditional scholarship with the claim that 'interpretative understanding must replace positivism (ii) a change in the way law is viewed." CLS is a reflection of a contemporary loss of faith in all forms of thinking that make the social structures of the modern world appear natural, inevitable, inherently justifiable and unquestionably progressive.”
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M.D.A. Freeman "Lloyd's Introduction to Jurispurdence": Critical Legal Studies (CLS) burst on the scene in the United States in the late 1970s with a series of conferences. It grew out of dissatisfaction with current legal scholarship. It was more a ferment than a movement with those who identified as "Crits" a diverse group perhaps united only by their commitment to a more egalitarian society. Off shoots are critical feminist jurisprudence, critical race theory, the Lat‐crit movement and other examples of outsider jurisprudence, such as "queer jurisprudence".
Professor Hilare McCoubrey & Nigel D. White "Textbook on Jurisprudence": The Critical Legal Studies movement, which initially emerged in the United States in the 1970s in part as a successor to the American Realist Movement, is essentially offering a radical alternative to established legal theories. It puts forward the preposition that all other legal theories are fundamentally flawed in their belief that sense and order can be discerned from a reasoned analysis of law and the legal system. Critical Legal Theory not only denies the possibility of discovering a universal foundation for law through pure reason, but sees the whole enterprise of jurisprudence..... as operating to confer a spurious legitimacy on law and legal system.
Patricia J Williams "Alchemy of Race & Rights: Diary of a Law Professor": "An expression of the angst‐the self‐doubting‐ of legal academics at the end of the period of modernity. How to conceive of the relationship of law and person? To understand the meaning of contemporary legal subjectivity, it seems to the adherents of CLS that we must first understand and locate the (late‐) modern person (conscious of his/her gender and race)".
William Ewaldt " Unger's Philosophy: A Critical Legal Study": Professor Duncan Kennedy, one of the leaders of CLS, described it as "a ragtag band of leftover '60s people and young people with nostalgia for the great events of 15 years ago. According to Kennedy & Karl Klare, CLS was "concerned with the relationship of legal scholarship and practice to the struggle to create a more humane, egalitarian, and democratic society". CLS has been defined differently as above and also criticized in many ways as: lacking coherence, fraught with the very contradictions that it identifies in liberalism, the movement of being nihilistic, destroying the foundations of legal reasoning without putting anything in its place or without even making positive recommendations for change, CLS prescriptions for the future to be too vague and utopian for practical application and the writings of CLS scholars are unnecessarily obscure, opaque, and turgid. Despite these criticisms, CLS has greatly influenced the study and theory of the law it earned an accepted position in law and has permanently changed the landscape of legal theory.
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Bibliography
1. Black's Law Dictionary (9th ed.)
2. Freeman M.D.A.,( 8th ed.) (2008), Lloyd's Introduction To Jurisprudence, Sweet and Maxwell Ltd., London.
3. McCoubrey Hilare & Nigel D. White (1999), Text Book on Jurisprudence, Blackstone Press Limited, London
4. Morrison, Wayne,( Reprint 1997), Jurisprudence: from Greeks to Post‐modernism, Lawman (India) Pvt. Ltd., New Delhi, India
5. Dr. Myneni S.R., Jurisprudence (Legal Theory) (2013), Asia Law House, Hyderabad, India
6. Pappas D. George (2006), Jurisprudence, Critical Legal Studies Movement, International Center for Legal Studies, http:// www.legaltutors.com/Jurisprudence/Lecture Notes/Critical Legal Studies Lecture.pdf (9 August 2015)
7. Ewaldt William (1988), Unger's Philosophy: A Critical Legal Study, University of Pennsylvania Law School, http://scholarship.law.upenn.edu/ faculty_scholarship/1284 ( 9 August 2015)
8. Wex Law Dictionary, Legal Information Institute, Cornell University Law School, https:// www.law.cornell.edu/ wex/critical_legal_theory (9 August 2015)
9. Chayes Abram et. all, The Bridge, http://cyber.law.harvard.edu/ bridge/ CriticalTheory/ critical1.htm ( 10 August 2015)
10. Farlex Inc., The Free Dictionary, http://legal‐dictionary.thefreedictionary.com /Critical Legal Studies ( 10 August 2015)
11. Wikimedia Foundation Inc.,Wikipedia, https://en.wikipedia.org/wiki/Critical_legal_studies ( 10 August 2015)