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MODERN PERSPECTIVE ON
CRITICAL LEGAL THEORY

Submitted To: Submitted By:

Dr. Manoranjan Kumar Shubham Mishra
Faculty, Jurisprudence Law - I 3rd Year, 5th Semester
(1649, B.B.A. LL.B)

SUBJECT: JURISPRIDENCE LAW-I

AUGUST, 2018

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA (800001)
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ACKNOWLEDGMENT

I Shubham Mishra, Roll no. 1649, 3RD Year 5TH Semester B.B.A LL.B. (Hons.), take this
opportunity to express my profound gratitude and deep regards to my guide Dr. Manoranjan
Kumar, Faculty of Jurisprudence Law – I, for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and guidance given by
him time to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my seniors, the library staff
and my friends for their valuable information and guidance, which helped me in completing this
task through various stages.

I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.
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CONTENTS

OBJECTTIVES OF THE STUDY ................................................................................................. 4

HYPOTHESIS ................................................................................................................................ 4

RESEARCH QUESTIONS ............................................................................................................ 4

RESEARCH METHODOLOGY.................................................................................................... 4

SCOPE OF THE STUDY ............................................................................................................... 5

CRITICAL LEGAL STUDIES....................................................................................................... 6

CRITICAL CONCEPTS IN LAW ............................................................................................... 11

DECONSTRUCTING CLS .......................................................................................................... 13

RECONSTRUCTING - CLS ........................................................................................................ 17

CONCLUSION ............................................................................................................................. 20

BIBILIOGRAPHY ....................................................................................................................... 21
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OBJECTTIVES OF THE STUDY

• To analyze the concept and the origin of the Legal Theory,

• To analyze, the transformation in the legal theory due to the modern way of law.

• To critically interpret the law in the modernity.

HYPOTHESIS

• Critical Legal Theory has conventionally been traced to the social, political, and
philosophical movements.
• In critical legal theories the results are predictable in the field of law.

RESEARCH QUESTIONS

• What is Critical legal theory? How perspective of this theory developed in the field of law
and study?
• What are impact of theory in field of law and how in modern times the perspective and the
theory change?

RESEARCH METHODOLOGY

The researches would be following the doctrinal research methodology. The researcher has used
both the sources of data that are primary sources, which include legislative provisions, cases, etc.
and the secondary sources, which include the books, websites, articles, etc. The researcher will
be collecting valuable data from library, which includes the written works, and from the field.
All these data will help the researcher to solve his research problem. The researcher has made an
extensive use library and internet sources. And the website, books, journals, articles published in
newspapers, bodies, reports of law commission and case laws.

The researcher had used primarily and analytical methods of the writing during the course of this
research project.
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SCOPE OF THE STUDY

The researcher in the present research paper would include the analysis the concept of the
Critical legal theory. The researcher would also analyze the impact of modern perspective on the
critical legal theory and further the researcher establish the way modern law shapes the legal
theory. In the research paper the researcher will critically interpret the role of law in modernity.
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CRITICAL LEGAL STUDIES

The origins of Critical Legal Studies (CLS) can be traced to the first Conference on Critical
Legal Studies at the University of Wisconsin at Madison in 1977, where a group of legal
scholars, practitioners, teachers, and students, dissatisfied with the Law and Society
Association’s empirico-behaviorist focus, met to discuss the formation of a new
association.1 Many of the participants in that conference were former 1960s-era students or
radical lawyers active in the antiwar and civil rights movements.2 They were drawn to Madison
in 1977 by a preference for egalitarian social and economic structures, a dissatisfaction with the
traditional law school curriculum, and an impatience with ‘sterile’ forms of legal reason.3 In
contrast to the sterile reason of mainstream legal doctrine, CLS scholars sought a critique of law
that would be capable of both understanding and changing the legal system and the society of
which it was a part.4

The substance of the CLS critique, developed in a plethora of law review articles and books
since 1977, can be reduced into two related propositions: the indeterminacy thesis and the
ideology thesis. The indeterminacy thesis claims that law is internally and externally
inconsistent5 whilst the ideology thesis claims that law is ideological and partisan rather than
neutral and independent.6 These theses build on the earlier legal realist insight that law can be
understood better by analyzing ‘non-technical’ or ‘extra-legal’ considerations in legal decision
making rather than the formal development of legal rules.7 The indeterminacy and ideology

1
Mark Kelman, A Guide to Critical Legal Studies 1 (1987); Allan C. Hutchinson, Introduction to Critical Legal
Studies 1, 2 (Allan C. Hutchinson ed., 1989)

2
See Kelman, id., at 1; Peter Fitzpatrick & Alan Hunt, Introduction to Critical Legal Studies 1, 1 (Peter Fitzpatrick
& Alan Hunt, eds., 1987).

3
See Kelman, supra note 1, at 1

4
Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End 106 (1995); Hutchinson,
supra note 1, at 3.

5
Minda, id.

6
Peter Goodrich et al., Introduction to Politics, Postmodernity, and Critical Legal Studies: The Legality of the
Contingent 1, 12 (Peter Goodrich et al. eds., 1994); Kelman, supra note 1, at 7-8.

7
Minda, supra note 4, at 25-33, 106.
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theses, however, go well beyond the legal realist project.8 These theses are not simple empirical
claims to be tested against the facts of the way law operates. Nor are they mere criticisms
designed to leave the deeper structure of law untouched. Rather, CLS offers these claims in the
form of a critique, designed to both understand and change legal and social reality.

• HISTORY

Although the intellectual origins of the critical legal studies (CLS) can be generally traced to
American legal realism, as 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 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 British critical legal studies movement started roughly at 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.9 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.

• RELATION TO AMERICAN LEGAL REALISM

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 the basis of distinctly
8
Minda, supra note 4, at 106; see also Gary Peller, The Metaphysics of American Law (Part 1 of 2), 73 Cal. L. Rev.
1151, 1152 (1985).
9
Raymond Wacks, Critical Legal Theory, available at
http://www.veryshortintroductions.com/view/10.1093/actrade/9780192806918.001.0001/actrade-9780192806918-
chapter-6
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legal rules and reasons that justify a unique result. The legal realists persuasively 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",10 American legal realism sent a shock through
American legal scholarship by undermining the formalist tenets that were long considered a
bedrock of jurisprudence.11

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 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."12

• INDETERMINACY AND ITS IMPLICATIONS

Although earlier versions of the CLS critique are easily traced to Frankfurt School, structuralist,
and Marxist sources,13 its present theoretical stance is not so clear. The breadth of the movement
since inception defies any categorizing descriptions.14 Nevertheless, CLS is composed of at least
two distinct theoretical schools that can be classified based on the implications drawn from the
indeterminacy and ideology theses: the critical modern school and the postmodern school. The
critical modern school explores legal indeterminacy and ideology in order to illustrate the failure
of the liberal form of economy and society.15 It draws its theoretical support from Marxism,

10
Leiter, Brian, American Legal Realism. U of Texas Law, Public Law Research Paper No. 42. Available at SSRN.
DOI, 10.2139/ssrn.339562.

11
Ib.

12
Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986).

13
Peter Goodrich et al., Introduction to Politics, Postmodernity, and Critical Legal Studies: The Legality of the
Contingent 1, 9-12 (Peter Goodrich et al. eds., 1994) .

14
James Boyle, Introduction to Critical Legal Studies at i, xiii (James Boyle ed., 1992).

15
David S. Caudill, Freud and Critical Legal Studies: Contours of a Radical Socio- Legal Psychoanalysis, 66 Ind.
L.J. 651 (1991).
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Freudianism, and the Frankfurt School.16 On the other hand, the postmodern school explores
legal indeterminacy and ideology to illustrate the failure of all totalizing rational thought and to
show that no objectively correct legal or political results are possible.17 It draws its inspiration
from the theories of the decentred postmodern subject offered by Michel Foucault, Jacques
Lacan, Jean-Francois Lyotard, Jacques Derrida, and others.18 This latter strand of CLS has been
in vogue since at least the mid-1980s and is clearly on the rise19 and is, consequently, the one on
which this analysis focuses.

According to CLS, liberalism’s theory of law, including legal positivism, is deluded by a notion
of the law as a closed, highly formal, vaguely machine-like system. In this system, cases are
decided logically by applying the correct rule to the facts at hand.20 CLS scholars, most
prominently Roberto Unger and Duncan Kennedy, criticize formalism in the liberal rule of law,
because it upholds dominant ideologies that reinforce existing hierarchical relations of
inequality. CLS criticizes liberal law as the mask behind which hide the ideological function of
judicial and state administrative officers.21

CLS ultimately indicts postmodern liberal adjudication pointing out that liberal legal theory
avoids the reality of jurisprudence by denying the existence of gaps within the law - namely, the
fact that the formal rules of statutory law cannot possibly cover all instances of concrete reality.
Liberalism demotes judges to the status of mere vending machines that mechanically dispense
the law upon cases, without intellectual reflection or active contribution; and, leaves the legal
theorist inadequately equipped to analyze exactly how the law is applied. In this regard, CLS
points primarily to the uncertain nature of meaning in language as the source of the

16
Tom Bottomore, The Frankfurt School (Routledge 1989); Raymond Geuss, The Idea of A Critical Theory:
Habermas and the Frankfurt School (1981).

17
Goodrich et al., supra note 9 at 12

18
David S. Caudill, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (1997).

19
Minda, supra note 4, at 116-27.

20
Duncan Kennedy, A Critique of Adjudication: fin de siecle (1997); Roberto M. Unger, Law in Modern Society
(1976); Roberto M. Unger, The Critical Legal Studies Movement (1986); Duncan Kennedy, Legal Formality, 2 J.
Legal Stud. 351 (1973).

21
Kennedy, id.; Roberto M. Unger, Law in Modern Society (1976).
10 | P a g e JURISPRUDENCE LAW - I

indeterminacy of deciding cases. Legal rules are so far from clear, regarding where and how they
should be applied, that there is no possibility of their being applied consistently or objectively.
According to CLS, this lack of determinacy shakes the very foundations of liberal formalist
notions of efficiency and justice. As a result, they conclude that, to a large extent, judges make
the law. Consequently, CLS insists that the subjective decision-making that goes on behind the
supposedly objective formal rule of law must be exposed in order to undermine the generally
conservative rulings of judges which are masked under notions of impartiality and fairness.

The subjective-judging criticism allows CLS to criticize legal liberalism for falsely separating
politics from the law arguing that there is no sharp distinction between objective law and
subjective politics. Scholars like Mark Tushnet, James Boyle, Roberto Unger, and, Duncan
Kennedy, argue that political value judgments infiltrate the law at every turn.22 The law
embodies specific political and, especially, economic values like self-interest, individualism, and
advantage, and reflects the personal prejudices of particular judges and allows them to protect
and promote the interests of the powerful and wealthy under the guise of neutral law.23 Kennedy
is perhaps most cynical in his assertion that judges generally pursue ‘ideological projects’ of
varying stripes, but mostly decide cases so as to curry favour with, and secure the interests of,
what he calls the ‘intelligentsia’-the movers and shakers in the City.24 Moreover, judges deny
such strategic political behaviour, according to Kennedy, in deliberate ‘bad faith.’25

The CLS critique of the nature of law and its indeterminacy is engaging but is not without its
weaknesses and non-believers in the CLS gospel have been quick to pounce. Below I present
some of their criticisms.

22
Kennedy, id ; Unger, supra note 16; James Boyle, The Politics of Reason: Critical Legal Theory and Local Social
Thought, 133 U. Pa. L. Rev. 685 (1985); Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional
Law (1988).

23
Mark Tushnet, The Dilemmas of Liberal Constitutionalism, 42 Ohio St. L.J. 413 (1981).
24
Kennedy, supra note 16, at 1-5, 115

25
Id. at 5.
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CRITICAL CONCEPTS IN LAW

‘Critical legal theory’ examines how critical thought repudiates what is taken to be the natural
order of things, be it patriarchy), (in the case of feminist jurisprudence the conception of ‘race’
(critical race theory), the free market (critical legal studies), or ‘met narratives’ (postmodernism).
The myth of determinacy is a significant component of the critical assault on law.26 Far from
being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain,
ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and
economic power. In the view of critical legal studies, social justice is a hollow promise.

Critical Legal Theory has conventionally been traced to the social, political, and philosophical
movements of the 1960s and, before that, to the early-twentieth century ‘realist’ critique of
modern jurisprudence. In truth, however, its origins go back to classical and pre-modern thought,
and to their acknowledgement of the centrality of law in attempts to conceive of the good life, or
the just polity a centrality that is, moreover, also discernible in the recent gravitation of a number
of contemporary philosophers and theorists (such as Habermas, Derrida, Agamben, Luhmann,
Latour) towards law.27

Against the ‘restricted’ and ‘conservative’ character of modern jurisprudence, Critical Legal
Theory constitutes a return to this more general interest in law and legality. Exceeding (if not
exploding) the limits of jurisprudence, it has, moreover, drawn upon the most ancient and most
contemporary traditions of critical thought in order to pursue new ways of understanding, living,
and imagining the law.

Critical Legal Theory is now an established if heterogeneous and controversial field of study,
represented by numerous international journals, regional organizations, and global conferences.
As the field continues to flourish as never before, this new title in Routledge’s Major Works
series, Critical Concepts in Law, meets the need for an authoritative reference work to make

26
Supra Note, 9.

27
Critical legal studoes, available at https://blackwells.co.uk/extracts/Critical_Legal_Theory.pdf.
12 | P a g e JURISPRUDENCE LAW - I

sense of a rapidly growing and ever more complex corpus of literature. Indeed, it is a landmark
collection of Critical Legal Theory’s principal sources, orientations, movements, and themes.28

Despite the indeterminacy of legal doctrine, critical theorists argue that actual judges and
legislatures produce predictable results. Using historical, socioeconomic, and psychological
analyses, the scholars try to unearth these predictable patterns and relate them to larger patterns
of power and privilege. Thus, Morton Horwitz argued that 19th century American courts changed
legal rules to spur economic competition and assist the mercantile elite’s search for power and
wealth.29

Joseph Singer recounts how 19th and 20th century courts remade property rules to permit owners
to exclude people from access to commercial and other enterprises precisely as social struggles
for racial inclusion grew.30 Feminist legal theorists document how traditional privacy protections
for families preserved patterns of male dominance, but legal reforms perpetuated the deeper
structures that assign altruism to the home and selfish competitive in the marketplace, all
disguised under pictures of natural differences between the public and private spheres. Alan
Freeman advanced the view that law reforms aimed at racial discrimination consistently
implemented the perspective of perpetrators rather than the perspective of victims.

28
Ib.

29
"legal theory:Critical Legal Studies Movement". Harvard University, Cambridge, Massachusetts USA (Bridge
Program).

30
Ib.
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DECONSTRUCTING CLS

CLS falters in analyzing the possibilities of knowledge about law is by largely failing to
reconcile its own contradictory claims regarding the indeterminacy and ideology theses. On one
hand, CLS claims that law is radically inconsistent and unpredictable and that law is not
determined by any socio-economic forces. On the other hand, CLS claims that law upholds and
strengthens existing social and economic arrangements. But these claims, at least on their face,
are contradictory.31 Without some complex theory of how law can be both determinate and
indeterminate, determined and undetermined by social and economic forces, the CLS attempt to
achieve the status of a liberating critique is very difficult to sustain.

This difficulty can also be traced to the influence of postmodernism within the CLS tradition.
The postmodern focus on subjective discretion and resistance to all totalizing theories produces a
theory of law that attempts to refute law’s claim of detached neutrality by arguing that law is
partisan.32 But, even without positing a social or economic totality, the accusation of subjective
partisanship implies that law favours the interests of some identifiable social group. Absent some
complex theory about how law favours those interests, without at the same time being consistent
and predictable, and without being determined in some sense by the interest it favours, it is
difficult to understand how CLS can claim to achieve a superior understanding of law.

In analyzing the limits of its own understanding of law, CLS runs into two other problems, one
epistemological and the other moral. The epistemological problem is this: if there is no logical
connection between law and society, or between legal decisions themselves, then CLS’s claim to
understand the nature of law must be false. In other words, if law’s indeterminacy is seen in such
a way that law has no consistent and predictable effects on society, and law’s ideological
function is seen in such a way that society has no consistent and predictable effects on law, then
the most one can assert is that law acts autonomously, following its own rules. But, according to
the indeterminacy thesis, one can never know precisely what those rules are because they are
inconsistent and incoherent. Thus, taking CLS’s claims of legal indeterminacy and legal non

31
Ken Kress, Legal Indeterminacy, 77 Cal. L. Rev. 283, 323-28 (1989).

32
Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama
of American Legal Thought, 36 Stan. L. Rev. 199, 216-235 (1984).
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determinism at face value, one can deduce that CLS has discovered nothing about law but the
fact that nothing can be discovered.

This forces CLS into a position of radical scepticism toward all theories that attempt to
understand and change society through law.33 Yet, CLS itself is such a theory.34 Thus, by
positing that what we know about law can never be rationally connected to what we do in
society, CLS invalidates its own premise.35

CLS writers give two reasons why a position of epistemological scepticism is desirable. Some
seek a legal system that merely recognizes the fact of its own indeterminacy.36 In contrast to the
present legal ideology that attempts to hide law’s indeterminacy with myths of neutrality and
objectivity, these writers seek to demystify law by showing that it is merely politics by other
means. In general, the indeterminacy and ideology theses point out a truth about law that is
inherent in both liberalism and the Enlightenment project itself. This position winds up in an
insoluble epistemological difficulty, however, because it must accept the indeterminacy of its
own findings about law along with that of law itself. From such a limited perspective, CLS
cannot hope to do anything more than criticize the form and outcome of legal rules on an ad hoc
basis.37

The second problem CLS encounters in analyzing the limits of its own understanding about law
is a moral one. Put simply, if the relationship between society and law is congenitally
nondeterminist, law cannot be seen as right or wrong. In positing the divorce of law from
society-where values arise-CLS must also accept the divorce of law from all normative
judgments. What makes this problem particularly acute is that it contradicts CLS’s desire for

33
Minda, supra note 4, at 224-25 (describing postmodern CLS’s scepticism toward modern attempts to understand
and bring order to society through the construction of meta-theories).

34
Goodrich et al., supra note 6, at 12-14 (summarizing the third historical phase of CLS as an adaptation of political
goals to more modest institutional change and alliance with a diverse group of disaffected minorities).

35
Douglas E. Litowitz, Postmodern Philosophy and Law 12, 170 (1997).

36
Hutchinson, supra note 1, at 2-3.

37
David Kairys, Introduction to The Politics of Law: A Progressive Critique 1, 11-14-15 (David Kairys ed., rev. ed.
1990).
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alliance with political and social groups that seek to alter society, in part, through moral
arguments.38 For example, if CLS cannot make any moral judgments about law, it would seem
difficult for it to ally itself with social groups victimized by law, such as racial minorities,
women, and the poor. Without these alliances, which are necessary for any attempt to oppose the
amassed power of liberal elites, CLS is relegated to toothless criticism instead of liberating
critique.

However, the strongest indictment against the crits relates to their failure to suggest workable
alternatives once the pretensions of the law are unmasked and its structure deconstructed. The
kind of indeterminacy that CLS wants to make commonplace threatens the legitimacy of legal
orders in ways likely to make the enforcement of legislative majorities less than effective.39 If
legal decisions were encouraged to be the particular outcome of power conflicts at any particular
time, law would be enforced so haphazardly that principles as consensually accepted as, for
instance, equal protection would be impossible to uphold. If, as Tushnet suggests, judges do, and
should, promote their own personal views under the guise of legality, who would seriously abide
by such decisions once recognized as widespread?40 What separate arm of government would
bother to enforce them once law is so discredited? What guidelines, rules, institutions, or
principles will advance ‘altruism,’ ‘generosity,’ and ‘solidarity,’ and enforce policies like worker
protection in such a scheme of law? The modus vivendi compromises that achieve them at one
moment could, and very likely would, collapse at the very next. Judicial capriciousness is simply
incompatible with a liberal, or social, democratic conception of justice; it would fail to
operationalize the very mode of justice that CLS desires.41 Even though most CLS proponents
back down when faced with the implications of their rhetorical thunder, the strong criticisms
stick.42 At a time when social scientists interested in justice realize that the means to attain it are

38
Goodrich et al., supra note 6, at 13; Hutchinson, supra note 1, at 2.

39
Neil McCormick, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, (1990).

40
Kennedy, supra note 16, at 13. Kennedy, supra note 16, at 13.
41
Lief Carter, Contemporary Constitutional Lawmaking (1985).

42
William Ewald, Unger’s Philosophy: A Critical Legal Study, 97 Yale L. J. 665 (1988).
16 | P a g e JURISPRUDENCE LAW - I

predicated, to a significant extent, on the fine clarification of indeterminacy problems,43 CLS’s

blaring yet, in reality, indolent critique seems somewhat less than fully responsible.

Given the strength of this critique against CLS, the pertinent question becomes whether it is still
useful or even necessary. In the final section of this essay, I attempt to answer this most difficult
of questions.

43
James Bohman, New Philosophy of Social Science: Problems of Indeterminacy (1991).
17 | P a g e JURISPRUDENCE LAW - I

RECONSTRUCTING - CLS

It may be thought that the critique leveled against CLS ultimately consigns it to the backwaters
of jurisprudential antiquity. However, the facts are all there which validate the critical theory of
law and of its liberal development: the increasing irrationality of the whole; waste and restriction
of productivity; the need for aggressive expansion; the constant threat of terrorism; intensified
exploitation; dehumanization. And they all point to the historical alternative: the planned
utilization of resources for the satisfaction of vital needs with a minimum of toil, the
transformation of leisure into free time, the pacification of the struggle for existence.44

A very simple but poignant example is the status of the poor economies of the world,
euphemistically termed developing nations in polite society. These have been bullied by the rich
states into taking on onerous obligations in relation to trade, environment, human rights and
other issues in international relations. Yet the rich countries are unwilling to assume the same
obligations. Thus although the rules are the same, they are applied in a very subjective manner
that protect the interests of the rich and powerful. Similar dynamics are also at play within
domestic law. Although citizens are said to enjoy equal protection of the law, it is clear that
many constituencies that are poor and weak do not the protection of liberal law. Women,
children, the poor and minorities have to keep running to the courts to ensure that their basic
rights are respected. Within our shores, simple issues like the ‘hoodie ban’45 and police youth
dispersal powers46 betray the laws’ pro-rich and pro-powerful agenda. Whilst the above rules
appear neutral, they target a constituency that is poor and without power whilst promoting the
Rich’s idea of the good society.

Thus despite some profound questions being raised against CLS, the fundamental thesis still
holds true. The laws indeterminacy allows it to protect the interests of the powerful at the
expense of those that are not. What CLS needs to do is to positively engage with its critique and
refrain from retreating into reconstructed liberal positions, or to what Neil McCormick calls ‘a

44
Marcuse, One-Dimensional Man 252-253 (1964).
45
Hoodie ban, is it fair? http://www.thenewspaper.org.uk/home/pg000324.php

46
Dispersal of groups http://www.together.gov.uk/category.asp?c=185
18 | P a g e JURISPRUDENCE LAW - I

fancy form of the West European welfare-state.’47 Rather the CLS project must continue its
endeavour of exposing the incoherence and inconsistency of law in support of liberalism. Whilst
‘reconstruction after deconstruction’48 is important the CLS project has never claimed that law
and society, once correctly understood, will automatically be transformed. Rather, the theory
offers the possibility of keeping watch against liberalism’s sophisticated forms of disguised
domination through seemingly neutral laws and policies.

• NEW VISIONS

Some critical theorists nonetheless elaborate constructive efforts to use law in pursuit of
progressive politics. Roberto Unger calls for "deviationist doctrine," which can involve
transferring arguments and practices that are familiar and accepted in one context to a different
context where they could produce dramatic change.49 The idea of "workplace democracy" is a
general example; the wide appeal of democratic norms and practices in politics are transferred to
the workplace in hopes of redistributing power. Another form of deviationist doctrine amplifies
counter principles or subordinated values already present in legal doctrines, such as the
dimensions of solidarity and responsibility for others that are present in contract and property
law doctrines, although usually subordinated to the values of self-reliance and competition.50

In one work, Unger proposed a three-point program of governmental reform taking the principles
of social and economic liberalism to their logical conclusions; this "super-liberalism" would
include the establishment of a rotating capital fund, making capital temporarily available to
teams of workers under governmentally-set conditions, and the creation of a system of rights to
safeguard "individual security without immunizing large areas of social practice against the
struggles of democracy."51

47
Neil McCormick, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, 539
(1990).

48
Ib.

49
Critical egal teory movement, legal theory, The Bridge, available at
http://cyber.harvard.edu/bridge/CriticalTheory/critical2.htm.

50
Ib.

51
Ib.
19 | P a g e JURISPRUDENCE LAW - I

Other critical theorists are much warier of large, structural proposals either for institutional
arrangements or for forms of legal argument. They suggest reliance on individuals’ ethical
sensibilities and existential responsibilities in order to resist roles, rules and institutional
practices that shield oppression and unfairness from challenge.
20 | P a g e JURISPRUDENCE LAW - I

CONCLUSION

The Critical Legal Studies (CLS) origin from the first Conference on Critical Legal Studies at the
University of Wisconsin at Madison in 1977, where a group of legal scholars, practitioners,
teachers, and students, dissatisfied with the Law and Society. The theory have been evolved in
many areas including family, neighborhood, law, society, religion, education, etc., which provide
kind of learning. It also examines how critical thought repudiates what is taken to be the natural
order of things.

Critical Legal Theory has conventionally been traced to the social, political, and philosophical
movements. CLS provide constructive efforts to use law in pursuit of progressive politics, which
can involve transferring arguments and practices that are familiar and accepted in one context to
a different context where they could produce dramatic change. It also amplifies counter
principles or subordinated values already present in legal doctrines, such as the dimensions of
solidarity and responsibility for others that are present in contract and property law doctrines,
although usually subordinated to the values of self-reliance and competition.

The important CLS project has never claimed that law and society, once correctly understood,
will automatically be transformed. Rather, the theory offers the possibility of keeping watch
against liberalism’s sophisticated forms of disguised domination through seemingly neutral laws
and policies.

According to critical legal theories there is production of predictable results in the field of law.
The CLS in field of law have been in changed since the movement starts and due to time the
theory has in many stages of deconstruction and construction. It renders the kind of periodical
aspect as the law evolved from sociological and other psychological study and with this
evolution period of time, it is easy to determine the result of theory in legal nature.

The modern view of the theory has examined critically the law in society. It states law is
necessarily intertwined with social issues, particularly stating that the law has inherent social
biases. Proponents of CLS believe that the law supports the interest of those who create law.
CLS movement wanted to overturn the hierarch structures of modern society and they focus on
the law as a tool in achieving goal.
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BIBILIOGRAPHY

• BOOKS
1. Caudill, David S, Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal
Theory (Atlantic Highlands, NJ: Humanities Press, 1997).
2. Geuss, Raymond, The Idea of A Critical Theory: Habermas and the Frankfurt School
(Cambridge: Cambridge University Press, 1981).
3. Kelman, Mark, A Guide to Critical Legal Studies 1 (Cambridge MA: Harvard University
Press, 1987)
4. Litowitz, Douglas E, Postmodern Philosophy and Law (Lawrence, KAN: University of
Kansas Press, 1997).
5. Minda, Gary, Postmodern Legal Movements: Law and Jurisprudence at Century’s End
(Cambridge MA: Harvard University Press, 1995)
6. Unger, Roberto M, Law in Modern Society (New York: The Free Press, 1976)
7. Unger, Roberto M, The Critical Legal Studies Movement (Cambridge MA: Harvard
University Press, 1986)
• ARTICLES AND BOOK CHAPTERS
1. Boyle, James, Introduction in James Boyle ed., Critical Legal Studies 1 (Dartmouth: New
York University Press, 1992).
2. Ewald, William, Unger’s Philosophy: A Critical Legal Study, 97 Yale L. J. 665 (1988).
3. Fitzpatrick Peter & Hunt, Alan, Introduction in Peter Fitzpatrick & Alan Hunt, eds., Critical
Legal Studies 1, (Oxford: Oxford University Press, 1987).
4. Hutchinson, Allan C. & Monahan, Patrick J., Law, Politics, and the Critical Legal Scholars:
The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199 (1984).
5. McCormick, Neil, Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J.
Legal Stud. 539, (1990).
• WEB RESOURCES
1. ‘Dispersal of groups’ http://www.together.gov.uk/category.asp?c=185, Neil McCormick,
Reconstruction After Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539, 539
(1990).
2. ‘Hoodie ban, is it fair?’ http://www.thenewspaper.org.uk/home/pg000324.php