Critical Legal Studies | Jurisprudence

All the theories in Jurisprudence basically tries to explain what law is and how it works. To define law or to understand how law works, these theories approach many subjects and disciplines like history, economics, sociology, psychology, politics, ethics, etc. Jurists and scholars re-examined all these theoris. That’s why with time, new dimensions are being added to these theories. Legal theories can never remain static.

In modern trends and theories there are mainly 5 categories. They are

In this blog, we will talk about Critical Legal Studies and all the aspects of this movement.

History of Critical Legal Studies

This trend or movement was emerged in the 1970s, to be precise 1977. In short it is called CLS. The emerge of this movement was due to dissatisfaction with the existing legal theories. CLS rejected the formalism of Austin, Bentham, Mill, and Hume’s point of view of legal theories.

Influences

Critical legal studies or CLS was highly influenced by the American school of law as well as by some European philosophers mostly Karl Marx, Max Weber, max Horkheimer, Antonio Gramsci and Michel Foucault.  Apart from them, W. Gordon, Duncan Kennedy and The Brazilian social theorist Roberto Mangabeira Unger played an important role in CLS. Britain, Canada, and Australia also influenced Critical Legal Studies movement.

Critical Legal Studies and Legal Realism

According to some people, CLS is a continuation of Legal Realism. Both CLS and Legal Realism both share a skeptical and anti-formalist view. But the objects of CLS are much wider than the Legal Realism. Legal Realism sees legal reasoning as autonomous and distinct but CLS does not support the distinction between legal reasoning and political debate.

CLS and Liberal Legal Theory

CLS has great concern with ‘Politics of Law’. Critical Legal Studies highly criticize the Liberal Legal Theory. Liberal Legal Theory is politically neutral and its objective is to resolve conflicts. CLS doesn’t support this statement and states that it is a conflict-ridden structure beneath its purportedly objective exterior, which hides the political judgment and power structures within the law. According to Liberal Legal theory, law is rational, coherent, necessary and just. But CLS rejects all these and says law is arbitrary, contingent, unnecessary and profoundly unjust.  

Roberto Unger’s Perspective

To establish a super liberal society, social theorist Roberto Unger is infused with four beliefs.

Firstly, law is a ‘system’ and as a body of ‘doctrine’, it should supply the answer to all questions about social behavior.

Secondly, the existence of legal reasoning should be in the doctrine.

Thirdly, this doctrine should reflect a coherent view about the relations between persons and the nature of society.

Fourthly, Social action should reflect norms generated by the legal system.

Unger proposes to replace a system of civil and political rights with four types of super liberal rights. These four rights are

CLS denies every assumption of Unger. First, it denies that law is a system and it is able to resolve every problem. This is the principle of indeterminacy. Secondly, it denies the legal reasoning. This is called anti-formalism. Thirdly, the doctrine can’t reflect a coherent view about the relations between persons and nature of a society. This doctrine can’t encapsulate a single, coherent view of human relation. According to CLS, this doctrine represents several different, often opposing points of view, none of which is sufficiently coherent or pervasive to be called dominant. This view is called the Principle of Contradiction. Finally, CLS argues that even there is unison or consensus, there is reason to regard the law as a decisive factor in social behaviour. This is called the principle of Marginality.

Unger did not give any clear picture of the nature, extent, and protection of these rights in his writings.  According to his, the present constitutional structure is too rigid and hard. He suggests remodeling it. It can be remodeled with a multiplication of overlapping powers and functions. This model will lead to the diffusion of power to all individuals. This will limit the power of class of powerful people at the top of the existing hierarchies within the society. As a result, individuals will get more opportunities to engage in the activity of the society and to change the society from being based on individuality to being based on community. This remodeling would abolish the traditional doctrine of separation of powers.

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Books Reference

  1. Lectures in Jurisprudence by Dr NK Jayakumar
  2. PHILOSOPHY OF LAW a very short introduction by Raymond Wacks

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