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.

Feminist Jurisprudence
Feminist Jurisprudence: An Overview
Feminist jurisprudence is a philosophy of law based on the political, economic, and
social equality of sexes. As a field of legal scholarship, feminist jurisprudence began in
1960s. It now holds a significant place in U.S. law and legal thought and influences
many debates on sexual and domestic violence, inequality in the workplace, and gender
based discrimination. Through various approaches, feminists have identified gendered
components and gendered implications of seemingly neutral laws and practices. Laws
affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual
harassment have all benefited from the analysis and insight of feminist jurisprudence.
Feminists believe that history was written from a male point of view and does not
reflect women's role in making history and structuring society. Male-written history has
created a bias in the concepts of human nature, gender potential, and social
arrangements. The language, logic, and structure of the law are male-created and
reinforce male values. By presenting male characteristics as a "norm" and female
characteristics as deviation from the "norm" the prevailing conceptions of law reinforce
and perpetuate patriarchal power. Feminists challenge the belief that the biological
make-up of men and women is so different that certain behavior can be attributed on
the basis of sex. Gender, feminists say, is created socially, not biologically. Sex
determines such matters as physical appearance and reproductive capacity, but not
psychological, moral, or social traits.
Though feminists share common commitments to equality between men and women,
feminist jurisprudence is not uniform. There are three major schools of thought within
feminist jurisprudence. Traditional, or liberal, feminism asserts that women are just as
rational as men and therefore should have equal opportunity to make their own choices.
Liberal feminists challenge the assumption of male authority and seek to erase gender
based distinctions recognized by law thus enabling women to compete in the
marketplace.
Another school of feminist legal thought, cultural feminists, focuses on the differences
between men and women and celebrates those differences. Following the research of
psychologist Carol Gilligan, this group of thinkers asserts that women emphasize the
importance of relationships, contexts, and reconciliation of conflicting interpersonal
positions, whereas men emphasize abstract principles of rights and logic. The goal of
this school is to give equal recognition to women's moral voice of caring and communal
values.

Like the liberal feminist school of thought, radical or dominant feminism focuses on
inequality. It asserts that men, as a class, have dominated women as a class, creating
gender inequality. For radical feminists gender is a question of power. Radical feminists
urge us to abandon traditional approaches that take maleness as their reference point.
They argue that sexual equality must be constructed on the basis of woman's difference
from man and not be a mere accommodation of that difference.