Overview

Critical Legal Studies (CLS) is a movement emanating from the American Realist movement, often
associated with the start of left wing political filiation. The left wing political filiation is in this sense
the faction that believes challenging existing power structures. As put forward by Duncan Kennedy in
his book Critical Labour Theory, “[Critical Legal Studies] is the emergence of a new left intelligentsia
committed at once to theory and to practice, and creating a radical left world view in an area where
once there were only variations on the theme of legitimation of the status quo.”

CLS focuses on the notion of that law and politics can not be separated. The founders of this the
theory believed that the dominant group at the formulation of the legislation will influence the
values put forward in the law. In other words, the idea of objectivity that’s at the centre of the law is
often violated. They focused from the start on the ways that law contributed to illegitimate social
hierarchies, producing domination of women by men, nonwhites by whites, and the poor by the
wealthy.1 Some critical scholars adapt ideas from Marxist or other socialist theories to demonstrate
how economic power affects the legal principles drawn up. Others prefer postmodernist theories.
Some scholars emphasize the Frankfurt School of Critical Theory (collection of researchers and
philosophers that came together to study the application of Marxism to philosophy and society).

Despite the differences, critical legal philosophers commonly:

1. Seek to demonstrate the indeterminacy of legal doctrine and show how any given set of
legal principles to yield contradicting results
2. Undertake historical, socioeconomic and psychological analyses to identify how particular
groups and institutions benefit from legal decisions
3. Expose how legal analysis and legal culture mystify outsiders and work to make legal results
seem legitimate
4. Elucidate new or previously disfavoured social visions and argue for their realization in legal
and political practices in part by making them part of legal strategies.2

Principles
a. Indeterminacy

This is the idea that legal texts like statues and precedents are internally contradictory and can
support multiple plausible interpretations. The contradictions pointed out, however, differ from a
scholar to a scholar. D. Kennedy argued that there are three levels of indeterminacy in legal texts:

1. Doctrinal indeterminacy: The rules and precedents within any area of law can often
support contradictory positions with rational legal arguments on both sides. An example
he gives out is: In [some] situations, a ‘rule’ that appears to disposer cleanly of a fact
situation is nullified by a counter rule whose scope of application seems to be almost
identical. Agreements that gratuitously increase the obligations of one contractual
partner are unenforceable for want of consideration. But, such agreements may be
1
Critical Legal Studies Movement- cyber.harvard.edu
2
Critical Legal Studies Movement- cyber.harvard.edu
 binding if the judge can find an implied rescission of the old contract and the formation
of a new one incorporating the unilaterally onerous terms. The realists taught us to see
this arrangement as a smokescreen hiding the skilful judge’s decision as to duress in the
process of renegotiation, and as a source of confusion and bad law when skill was
lacking.3
2. Structural indeterminacy: The hierarchical nature of legal authorities means lower level
rules must be interpreted based on “open-textured” higher rules, leaving room for
discretion. A seemingly determinate legal rule is in fact open-textured—that it allows
the judge to perform an ad hoc balancing of a number of factors. Of course, rules that
are open textured on their face, such as the equal protection and due process clauses of
the Constitution, are—at least when considered in isolation—similarly indeterminate. 4
3. Ideological indeterminacy: Areas of law contain ideological assumptions that are
contestable and could justify alternate rulings depending on one’s social vision;
reasoning is not neutral. An example he gives is that the cost-benefit analysis, a tool of
utilitarianism, does not determinate results in particular cases.5

Roberto Unger in the other spectrum provides other levels of indeterminacy. Most of them are
essentially similar to Kennedy’s notion, how ever they’re different in name. He names doctrinal,
strategic, interest-based, institutional, and historical indeterminacy. Strategic and institutional
indeterminacies are almost congruent with Kennedy’s structural indeterminacy. The first one refers
to the ability of judges, lawyers, and other legal actors to strategically choose between
interpretations to achieve a certain political or ideological outcomes, and the second one refers to
the open texture of legal rules’ requirement of judges to make discretionary choices informed by
institutional setting and role. Historical indeterminacy is ignorance of legal texts of the evolution of
legal concepts over time as social conditions change, leaving room for ambiguity.

b. Critique of formalism

This is the rejection of law as an autonomous existence separated from external social and political
forces such as class, race, and gender. Formalism, in this sense, is the belief in a distinct form of
reasoning for the legal order, one that is and should be autonomous from political, social, and
economic concerns. Roberto Unger states in his book “The Critical Legal Studies Movement” that a
legal theory needs a background prescriptive theory of related social theory. However, no matter
how carefully studied in detail, it always leaves room for a misunderstanding and hence is proved
incompatible. This makes the legal theory open-ended ideology, in contrast with the very essence of
law defined by the classical theories—that is formalism. In other words, law will refer to the outside
forces such as the political, economical, social, and other concerns in order to make a
comprehensible legislation, and formalism oversimplifies the portrayal of legal thinking’s complex,
dynamic relationship with societal forces. The implication of this argument is to demonstrate that a
doctrinal practice that puts its hope in the contrast of legal reasoning to ideology, philosophy, and
political prophecy ends up as a collection of makeshift apologies.6

3
Kennedy, 89 Harv. L. Rev. at 1700 (cited in note 4) (original emphasis)
4
Solum, B. Lawrence- On the Indeterminacy Crisis: Critiquing Critical Dogma, The University of Chicago Law
Review [54:462, 1987]
5
Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 Stan. L. Rev. 387 (1981)
6
Unger, M. Roberto- The Critical Legal Studies Movement, Harvard University Press, 1986
 c. Scepticism of rights

Rights- based legal claims do not ensure liberation or social change. They often preserve the status
quo by legitimizing existing inequalities.

Kennedy, Unger, and Dalton give a slightly distinct explanation of their sceptic nature of rights.
Kennedy believes that rights put too much emphasis on individual interests at the expense of
communal responsibilities. An example he provides is the autonomy over ownership of a property
with little regard to communal interests. Secondly, he believes that rights are indeterminate; their
application depends on the context. Kennedy examined the 5th Amendment right against self-
incrimination, and that right’s meaning and scope changed throughout history, starting from the 19 th
century to McCarthy’s era to post 9/11 period. Finally, the existence of rights doesn’t guarantee the
transformative societal change that a legal system aspires to enforce. It demands alternative ethical
frameworks, political will and collective action to shift social structures.

Unger mostly agrees with Kennedy’s idea, and adds one important idea to the scepticism of rights.
He states that rights reinforce a static, fixed conception of personality and interests. They inhibit
experimentalism and flexibility needed for social and legal evolution. As an example, he gives the
right of free speech as a provider of static framework. He states that it shields political dissent and
debates on public issues, giving fewer platforms for artistic/cultural works that challenge social
norms.

Clare Dalton, a prominent feminist legal philosopher, in addition to the basic arguments laid out
prior by Duncan Kennedy, adds that rights often reflect male experiences, failing to encompass
concerns uniquely affecting women like reproductive autonomy, family/work balance, and
interpersonal harms like sexual assault. She also asserts that rights are a limited tool for change
given their individualistic framing; in other words, since they tend to focus on individuals’ liberties
and not on collective responsibility, they are not a sufficient force for a societal change. Moreover,
attaining new rights for women risked the emphasis on individual responsibility over collective
responsibility, and so it failed to transform the underlying hierarchies of gender, class, colour, and
the like.

d. Interest Group theory

He argued that certain economic elites, like large corporations and financial institutions, hold
disproportionate sway over the legal order.

Dominant groups have vastly greater resources to lobby legislators, file amicus briefs, litigate test
cases, and shape legal and policy debates through think tanks. The individualistic framing of right like
private property rights shields established distributions of wealth and power from democratic
control or redistribution claims. Legal interpretation is subtly influenced by judges drawn from the
same elite professional and class backgrounds. The outsized political donations and economic clout
give them privileged access to policy makers interested in the private sector.

An example he provides for some of legal doctrines that have been critiqued for serving the
economic interest group is the tax codes with loopholes and exemptions that disproportionately
benefit wealthy individuals and large corporations. He also provides the deregulation of industries
like finance, telecom, and energy that prioritize free markets over consumer/environmental
safeguards as a reinforcing illustration.

e. Hegemonic preservation

This is the critique presenting the idea that legal system helps maintain existing power structures
and resist challenges to prevailing distributions of wealth, property, and political power in society. As
Kennedy, Unger, Kelman, and other prominent scholars of CLS point out, legal rules often mask their
intention of preventing transformative societal change. Here are the key tenets presented:

 The language of neutral principles, objective rules and individual rights masks how often
law upholds processes existing distributions of wealth, power, and privilege.
 The law, often by presenting the status quo as a natural and an inevitable phenomenon,
preserves hierarchies that benefit dominant social groups.
 Ambiguous legal concepts allow strategic deployment of principles to validate many
positions, hindering transformative change to structures of subordination.
 Formalist legal reasoning obscures non-legal influences and value judgements
underlying doctrines, perpetuating a myth of law as an autonomous discipline. This
prevents the change aspired in the society.

As an example, we can take housing discrimination in the US. Despite laws, residential segregation
along racial and economic lines persists due to historical practices like redlining now difficult to
directly challenge. Redlining is the withholding of home-loan funds or insurance from
neighbourhoods considered poor or lowest economic risks.

Critiques
1. Idealism: CLS are often criticised for being too “ideal”; in other words, they are often in
favour of theoretical critiques rather than focusing on the practical constraints of the real
legal system.
2. Nihilism: Some believe the emphasis on indeterminacy and scepticism risks nihilism by
failing to offer any reliable principles to guide reform. CLS don’t really provide a solid legal
system that is practicable, but wish to use deconstruction of legal systems.
3. Fragmentation: Many scholars of CLS are now fragmented into different schools of thought
such as feminism, Critical Race Theory (CRT), Law and Society, rather than a unified effort.
The movement also ended abruptly in the early 1990s.
4. Limited empirical work: CLS incorporated less direct empirical study for how law operates,
relying more on theoretical frameworks. This makes the theory look rather unfocused and
unreliable.
5. Political overreach: The theory overreaches to support left-wing sides of politics, often
inappropriately, which makes it beyond the scope of legal analysis.
6. Bizarre language: CLS articles and publications often are marked by bizarre language that is
not appropriate for legal texts. The unbridled language that CLS writers embed into the text
of legal scholarship acts out the poststructuralist discovery of the “free play of language.” 7

7
See T. Eagleton, Literary Theory 138-41 (1983)
 Words such as “loopification,”8 “jabber,”9 and “intersubjective zap”10 are found in some of
CLS publications.

8
Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349, 1354 (1982)
9
Freeman & Schlegel, supra note 45, at 852
10
Gabel & Kennedy, supra note 39, at 4