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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 12
THE RADICAL CRITIQUE: THE CRITICAL LEGAL STUDIES MOVEMENT
Introduction
Many modern commentators have described a new culture war between post structuralist
and/or post modernist social theorists on the one hand, and mainstream liberal social theorists
on the other. Such commentators often identify mainstream liberal thought as a continuation
of the rationalist and enlightenment projects of the 18th Century that sought to use reason (and
in some instances science or various branches of applied mathematics) to acquire knowledge
and explain how society should be organised.
In simple terms we might identify some of the following characteristics of the mainstream
liberal project as: 
Concern with objective knowledge claims

Looking to an accumulation of knowledge about issues and problems that have persisted
through time.
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April 2004
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
In legal philosophy the mainstream project considers rationality, morality, and human
rights, to provide foundations for legal doctrine.
The postmodernist/post structuralist movement in contemporary social theory is often
identified with some or all of the following characteristics: 
A denial of objective knowledge claims and espousal of epistemological relativism

A denial of the foundational nature of rationality.
The movement is often associated with attempts to show that rational standards may
themselves be culturally based, hence the advocacy of: 
The indeterminacy thesis in regard to legal and moral reasoning and the interpretation of
texts

An emphasis on the ideological function of many of the dominant concepts within
philosophy, politics and law, and in some of its more controversial versions, also in
science.
The critical legal studies movement (CLS)
CLS first came to prominence in the United States in the 70’s and early 80’s. The ideas and
theories of CLS can be viewed as a confluence of several important intellectual streams, but
the most significant were, scepticism about legal doctrine and legal formalism first made
famous by the American realists, Marxism, and structuralist thought.
Some of the early proponents of the movement were Duncan Kennedy, Roberto Unger and
Morton Howitz.
The concept of ideology
Central to understanding the CLS is grasping the notion of ideology as it has been developed
by Marxist and structuralist scholars.
Marx’s theory of historical materialism viewed the economic mode of production as the
ultimate determinant of social forms. Thus, capitalism for example, the most recent mode of
production, was a means of production governed by commodity exchange and dependent
upon markets.
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April 2004
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
The social relationships between workers and capitalists, and consumers and producers
are themselves produced by that market.

Marx further argued that the theoretical life of the society (meant in the general sense to
include not just philosophy and literature but law, politics, religion and the like) was
secreted by the economic mode of production. Thus, the form taken by law and politics,
and indeed the philosophy of law and politics, was governed by the economic relations
within that society.

The political theories of modern liberalism that have emerged since the 18th Century, all
depend upon concepts of legal equality, freedom of contract, possession of individual
rights and liberties, and these Marx argued all reflect the way in which human beings
relate to each other in the market where everyone has at least formal equality (unlike precapitalist societies where social caste or birth may have been determinative of one’s
rights).

Marx also recognised that these ideological concepts generated by the mode of production
would enjoy some degree of relative autonomy from the economic base.
It is crucial to appreciate that Marx was not suggesting that the doctrines of modern liberalism
represented propaganda by capitalists to serve their own purposes. Marx’s concept of
ideology sought to show that ideas were generated by economic relationships within society,
and that this occurred in such a way that they seemed natural to capitalist and worker alike.
CLS and the indeterminacy thesis

CLS did not so much add to the indeterminacy thesis developed by the American realists,
such as Jerome Frank, as pick up the American realist criticisms of legal doctrine, and
demonstrate that they were more potent and subversive of law’s claim to be a neutral
arbitrator of disputes than had been acknowledged by the American realists themselves.

Although Frank had argued that law was indeterminate, he also argued that judges should
free themselves from delusions that there were fixed rules and that once they had realised
their creative function they would be more mature and responsible judges.

The CLS movement replaced Frank’s psychologism with a theory about law’s ideological
function. If law performed an ideological function which helped reproduce oppressive
relationships (eg, the relationships between workers and bosses, between white people and
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April 2004
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black people, between men and women, etc) then the indeterminacy thesis was even more
significant.

If there are no right answers to legal problems and law in some fashion is made up by
judges as they go along, then the chances are that the purposes served by legal doctrines
will be ideological.
CLS and trashing the law
A number of early CLS scholars saw their function as one of unmasking the ideological roles
played by many traditional legal doctrines referred to by some as “trashing the law”. A
number of techniques were deployed. One was to seek to demonstrate the contradictory
values which might underpin a particular legal doctrine. Thus the criminal law on the one
hand, through the principle of mens rea, seems to assume a notion of free will and individual
moral responsibility. Simultaneously, sentencing policy would, in discounting sentences,
acknowledge that crime was often caused by social and psychological factors beyond the
control of the perpetrator. Law is thus seen to contain internal contradictions which
undermine its claim to being an objective body of logically coherent doctrine. The
contradictions themselves may reflect conflicts within the society at large. (See for example,
Duncan Kennedy’s “Form and Substance in Private Adjudication” Harvard Law Review,
1976, Volume 89, 685 as an early attempt at this form of legal criticism).
Post CLS

In the late 80”s and 1990’s the CLS has probably ceased to exist as an identifiable
movement but has been succeeded by a number of different scholarly groups engaged in
such things as developing a feminist jurisprudence or critical race studies.

If one had sought to sum up CLS in a sentence, it would have been that law is politics.

Many CLS proponents were sceptical about the value of any system of formal rule
adjudication as a social control mechanism.

Some critical race scholars (eg, Mari Matsuda) argued however that for some oppressed
groups in the United States the legal system had often been their only protection or
bulwark against oppressive social forces, and that it was simplistic to seek to “trash the
law”.
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April 2004
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
Feminist jurisprudence has not sought to trash the law, so much as expose systematic
gender biases or preference within the law.

Some have argued that the paradigm form of Western law represents a male approach to
solving social disputes.
CLS after the revolution
Many of the early CLS scholars were disparaging of the Western legal model generally, rather
than simply particular laws, and were reluctant to expand on what should replace the legal
system. Some, like Marxist scholars before them, eschewed offering a “blueprint for the
future”.
Despite the suggestions that moral and philosophical claims are culturally dependent and that
one could not establish an objective viewpoint, most proponents of CLS have serious, and
deeply felt political commitments. Explanations as to why one was entitled to continue moral
and political criticism while appearing to deny much of the basis for such claims, are rarely
satisfactory.
Further, in suggesting that traditional legal philosophy was merely engaged in an ideological
project in seeking to overcome the paradoxes and inadequacies of our explanations for law,
legal authority and adjudication, CLS must be committed to the notion that these problems
can be disposed of by disposing of law. However, if we will need some system akin to law for
whatever society we wish to create, it seems inevitable that the sorts of difficulties uncovered
by legal philosophers regarding the nature of meaning, the application of rules, and the
problem of authority will continue to arise. The CLS are unconvincing in the suggestion that
the revolution will do away with the need for law and the problems with which legal
philosophers have been concerned.
Christopher Birch
April 2004