Critical legal theorists share a profound scepticism about many of the enterprises that have long
been assumed to be at the heart of jurisprudence. The central theme of critical legal theory is to
doubt the prospect of uncovering a universal foundation of law based on reason. It repudiates
the very project of jurisprudence which it generally perceives as clothing the law and legal system
with a bogus legitimacy. Moreover, its acceptance of law as a distinctive and discrete discipline
buttresses the concept of law as autonomous—independent from politics and morality. The myth
of determinacy is a significant element of the critical assault on law. Far from being a
determinate, coherent body of rules and doctrine, the law is portrayed by critical legal theorists
as uncertain, ambiguous, and unstable. And far from expressing rationality, the law reflects
political and economic power. Moreover, as many of the adherents of CLS seek to demonstrate,
the law is neither neutral nor objective. In pursuit of neutrality, the law deploys a number of
fictions or illusions. In particular, the exalted idea of a liberal society under the rule of law in
which all are treated equally, is treated with deep suspicion by CLS. Social justice is an empty
promise. Since the law is irretrievably wedded to power, it cannot transcend this power which is
therefore chiefly ideological: social relations based on power are made to appear legitimate—
because they seem to be beyond power. Postmodernist critics of the law generally proceed from
the starting point that all claims of truth are questionable. No particular reading of a text is
‘privileged’ or authoritative. It is merely one of any number of possible interpretations.
Critical Legal Studies
CLS developed in the United States in the 1970s. It expressed a broadly Marxist critique of the
substantive doctrines of the law. The movement, in its early stages, was distinctive in two
respects, First, it was located within legal scholarship (as opposed to sociology or political
science), and secondly, it sought to address the inequities of legal doctrine. Its original focus was
on Blackstone’s Commentaries, the Wagner Acts, and on tort and contract. Later it reflected also
the wider tendency of leftist thought towards culture, literature, and aesthetics.
Another important feature of CLS is its interdisciplinary approach. It draws on politics,
philosophy, literary criticism, psychoanalysis, linguistics, and semiotics to expound its critique of
law, and continues to exert a—declining—influence on ideas about the politics of rights, which
sometimes borders on the nihilistic. If American Realism was ‘jazz jurisprudence’, Critical Legal
Studies may be its ‘rock’ successor. CLS is, in many ways, an outgrowth of the American realist
movement, though even some of its critics concede that, in important respects, it extends
beyond the scepticism of its alleged progenitor. Ronald Dworkin puts the matter succinctly (but
without much evidence of the constructive interpretation he generally advocates) when he
declares that in most of its programme: save in its self-conscious leftist posture and its particular
choice of other disciplines to celebrate, critical legal studies resembles the older movement of
American legal realism, and it is too early to decide whether it is more than an anachronistic
attempt to make that dated movement reflower. Much of its rhetoric, like that of legal realism,
is borrowed from external scepticism: its members are fond of short denunciations of
‘objectivism’ or ‘natural law metaphysics’ or of the idea of values ‘out there’ in the universe.
CLS was greeted by many scholars as a breath of fresh air in the sometimes stultifying atmosphere
of legal theory. It has certainly excited controversy and rancour (Harvard Law School, where CLS
had a significant following, still feels its fallout—though perhaps it has merely brought into the
open the inevitable ideological differences that exist between teachers of law in most law
schools). It has generated a prodigious literature which, at best, is both challenging and
stimulating. But see for yourself. A useful starting point is the book, The Politics of Law, edited by
D Kairys. It is very much a ‘manifesto’ of the movement’s creed, and contains several short
essays—all written from a ‘critical’ standpoint—on a variety of branches of substantive law.
You will at once realize that this is no half-hearted ‘criticalness’; CLS is a direct attack on the
orthodoxy of legal theory, scholarship, and education. More than that, it is an important
intellectual assault on the very organization of modern society itself. Another helpful launching
pad for your reading is the collection of leading essays, edited (with a lively and lucid
introduction) by James Boyle, Critical Legal Studies. There are (following Trubek) three important
ideas that inform CLS: ‘hegemonic consciousness’ (a concept derived from the writings of the
Italian Marxist, Antonio Gramsci); ‘reification’ (a concept used by Marx and developed in the
writings of the Hungarian Marxist, György Lukács); and ‘denial’ (a concept used in Freudian
psychology). By ‘hegemonic consciousness’ Gramsci meant that social order is maintained by a
system of beliefs; in a capitalist society these beliefs are accepted as ‘common sense’ and part of
the natural order by those who are actually subordinated to it. In other words, these ideas are
treated as eternal and necessary whereas they really reflect only the transitory, arbitrary
interests of the dominant elite. This system of ideas is then ‘reified’ (a term used by Marx), that
is, becomes a material thing: it is presented as essential, necessary, and objective when, in fact,
it is contingent, arbitrary, and subjective. Legal thought is also a form of ‘denial’: it is a means of
coping with perceived contradictions that are too painful for us to hold in our conscious mind. It
therefore denies the contradiction between the promise, on the one hand of, say, equality and
freedom, and the reality of oppression and hierarchy, on the other.
Roberto Unger
CLS generally subscribes to the view that the following four ideas prevail in society:
● Law is a ‘system’. This body of ‘doctrine’, properly interpreted, supplies the answer to all
questions about social behaviour.
● A form of reasoning exists that may be used by specialists to find answers from ‘doctrine’.
● This ‘doctrine’ reflects a coherent view about the relations between persons and the nature of
society.
● Social action reflects norms generated by the legal system (either because people internalize
these norms or actual coercion compels them to do so).
Each of these four ideas is challenged by CLS:
● It denies that law is a system. ‘Doctrine’ never provides a determinate answer to questions,
nor can it cover all conceivable situations. This is described as the principle of indeterminacy.
● It rejects the view that there is an autonomous and neutral mode of legal reasoning. This is
described as the principle of antiformalism.
● It disputes the idea that ‘doctrine’ encapsulates a single, coherent view of human relations;
instead CLS argues that ‘doctrine’ represents several different, often competing views, none of
which is sufficiently coherent or pervasive to be called dominant. This is described as the principle
of contradiction.
● It doubts that even where there is consensus, there is reason to regard the law as a decisive
factor in social behaviour. This is described as the principle of marginality. If these four principles
(indeterminacy, antiformalism, contradiction, and marginality) are accepted, then as Trubek puts
it, ‘[t]he law, in whose shadow we bargain, is itself a shadow’. If law is indeterminate, all legal
scholarship on what the law is becomes merely a form of advocacy; if there is no distinct form of
legal reasoning, such scholarship becomes a political debate; if legal ‘doctrine’ is essentially
contradictory, legal argument cannot rely on legal materials if it is not to result in a tie; and if law
is marginal, social life must be ordered by norms outside of the law.
Boyle
Demonstrates, there are five major aspects of critical legal theory:
1. Legal rules and legal reasoning. This has two principal strands. The first is largely inspired by
Unger, mainly in his book Knowledge and Politics, where he seeks to show that the liberal theory
of the state is based on the view that all values are relative; the market economy and democracy
therefore become the natural institutions in a liberal society.
2. The second proceeds from a sceptical realism which rejects the conventional view, for
example, that courts can sensibly interpret language, the division between private and public
law, the neutrality of rules, and the centrality of rights. Th e writings of Duncan Kennedy and
Peter Gabel have been particularly influential here.
3. Legal history. There are a number of important CLS writings on the history of legal concepts
and institutions and their relationship with ideological factors. In ‘Critical Legal Histories’, for
instance, Robert Gordon shows how the traditional evolutionary approach neglects the extent to
which we have control over our lives
4. Substantive law. As already pointed out, CLS does not merely traverse the loft y peaks of
abstract theory, but seeks to apply its insights to actual ‘black letter’ legal issues. There are
numerous examples of such work. Boyle provides a substantial list which indicates the broad
sweep of the analysis.
5. Legal practice. A major line of attack concentrates on the manner in which law consists of
symbols (eg, ‘contracting parties’) reified to represent the social order. This, in turn, produces an
alienated world of repression by rules and authority. CLS latterly moved towards a full-blown
epistemological onslaught on legal thought and the manner in which ‘text’ stands in need of
deconstruction.
Each of these large claims warrants closer examination. The CLS movement, though it has its
roots in realism, is not, as suggested above, to be regarded merely as a ‘new realism’. Both
movements are antiformalist and sceptical; both seek to demystify the law: to reveal the law ‘in
action’. But in at least four important respects CLS differs from realism. First, it is largely
uninterested in the pragmatic or empirical concerns (what courts, lawyers, legislators actually
‘do’) that preoccupied the realists. For CLS the law is regarded as ‘problematic’ in the sense that
it reproduces the oppressive character of society. Secondly, unlike the American realists who
accepted the distinction between legal reasoning and politics, CLS views it as axiomatic that law
is politics: there is nothing special about legal reasoning to distinguish it from other forms of
reasoning. Thirdly, CLS exhibits a much deeper concern with theory than was ever the case with
the realists. Th ere is a fairly strong tie with the critical theory of the so-called Frankfurt School
and its leading contemporary figure, Jürgen Habermas, as well as writers like Foucault, Unger,
and, more recently, deconstructionists such as Jacques Derrida . Fourthly, though the realists
were determined to differentiate between legal rules and their actual operation in society, they
generally embraced the neutrality of law and the ideology of liberalism. CLS, of course, rejects
both.
Postmodern legal theory
Postmodernism, originally a movement in art, came late to legal theory where it continues to
exert considerable influence. It is a very broad church that both inspires and accommodates
theorists of many kinds and disciplines: language, literature, psychology, history, linguistics, art,
and so on. Now law. Some writers in this genre seem eager to impress readers with the selfconscious sweep of their erudition. Reading their work is often heavy going. The effort to
comprehend may produce less pleasure than pain. But help is at hand. A number of collections,
such as Postmodern Jurisprudence by Douzinas and Warrington shed considerable light on the
darker reaches of this often tenebrific subject. The symposium ‘Postmodernism and Law’ is also
a useful seam which I have worked in some of what follows. There are also some stimulating, if
challenging, essays in Douzinas, Goodrich, and Hachamovitch, Politics, Postmodernity and Critical
Legal Studies.
What is it?
In his influential book, The Postmodern Condition: A Report on Knowledge, Jean-François Lyotard
(one of the movement’s most important standard-bearers) declares: ‘I define postmodern as
incredulity toward meta-narratives’. Sweeping concepts, universal values, ‘master narratives’ are
regarded by postmodernists, iconoclastically, as redundant, if not meaningless. The great
historical epochs, developments, and ideas (especially those associated with the Enlightenment
(and the Enlightenment itself)) are treated with deep suspicion. The conventional assumption
that human ‘progress’ is ‘evolving’ toward ‘civilization’ or some other end is repudiated in
postmodern thinking. Interpretation and understanding is to be sought in the experience of
individuals.
In its onslaught on the Enlightenment, much postmodernist thought rejects the Kantian
preoccupation with individual rights, equality, and justice that are among the hallmarks of
modernism. Nor is the espousal of these values embraced only by those who champion the idea
of natural rights, for they pervade the majority of post Enlightenment legal theory, including
positivism. The assault on rationalism was already part of the empirical tradition of British
philosophers such as Locke and Hume but it is only with the recent development of
postmodernist legal philosophy (and its Continental European flavour) that the intensity
campaign has been evident. Drawing on elements of ‘cultural theory’, and the writings of
Foucault, Derrida, Lacan, and other, principally French and German theorists, the development
may also be seen as an attempt to invalidate, or at least to contest, the methods, assumptions,
and ideas of the analytical, Anglo-American philosophical tradition.
Thus, postmodernist accounts of society (and the role of law within it) reveal a disenchantment
with formalism, essentialism, statism, Utopianism, and even democracy. But they question a
great deal more. Critical theory, aesthetic or ethical, seeks to subvert ‘foundational’ ideas of truth
‘whether founded in transcendental conceptions of truth or in an acceptance of the self’s
unchallenged place at the centre of any analysis’. Th is attack proceeds from a variety of
standpoints and employs several methods. Th e breadth of this formidable scholarship extends
well beyond the boundaries of any course in jurisprudence or legal theory, and includes works by
Michel Foucault, Jacques Derrida, Jacques Lacan, Jürgen Habermas, Richard Rorty, Charles Taylor,
Michael Walzer, and Alasdair MacIntyre, to name but a few. Anne Barron expresses well the
ambitions of cultural theory, acknowledging that its numerous questions transcend the idiom of
conventional jurisprudence.
Jacques Lacan
Lacan is generally regarded as the architect of postmodern psychoanalytic semiotics. Drawing on
the work, in particular, of Freud, Saussure, and Levi-Strauss he claims that the unconscious is
structured like a language; it is therefore essential to identify the inner workings of that discourse
that takes place within the unconscious. The unconscious is the repository of knowledge, power,
agency, and desire. He argues that we do not control what we say; rather the structure of
language is pre-determined by thought and desire. Lacan employs a psychoanalytical, Freudian
conception of the divided human subject (ego, superego, and the unconscious) to demonstrate
that the ‘I’ expressed by language (which he calls the ‘subject of the statement’) can never
represent an individual’s ‘true’ identity (which he calls the ‘subject of enunciation’). This
disjunction between identity and its representation occurs in the first eighteen months of our
lives, and is forever lost. We create a semblance of individual and social stability only by fantasy—
which cannot be maintained. The subject is thus, he argues, divided or decentred. The language
of the unconscious is, he contends, the arbiter of all experience, knowing, and living.
The postmodern agenda
Postmodernist legal thought has an important political object. Impatience with the modern
state’s bureaucratic suffocation of the individual, the overarching presence of government, the
increasing globalization of markets, and universalizing of values, has provoked a need to redefine
and nurture the individual. It has also (perhaps inevitably) witnessed a new pragmatism:
Pragmatism attracts postmodernists for several reasons. It rejects foundationalism: knowledge
is radically contingent; the test of knowledge is efficacy; thinking is instrumental, functional,
problem-solving. Secondly, in its contemporary reinterpretation at least, pragmatism is
progressive, emancipatory and democratic. Pragmatists are concerned with the relationship of
knowledge and power and the ways in which discourse, whether in science, politics or ethics, is
linked to structures of domination. A down-to-earth set of goals (economic, ecological, political)
is accompanied by the advocacy of a more inclusive community that emphasizes the special
predicament of women, minorities, the dispossessed, and the poor. A popular expression (to be
found also among CLS and feminist theorists) is ‘empowerment’. But the radical postmodern
political agenda is a complex one which may generate confusion or what has been called a
‘multiplication of ideologies’.
Language
Much of what we do is transacted through words, written and spoken. These ‘signs’ are an
essential feature of social intercourse and their meaning and interpretation are inseparable from
our understanding of the world. The subject of semiotics is devoted to the study of the uses of
language and, in particular, its ideological content and consequences. Umberto Eco has said
(somewhere) that ‘semiotics is, in principle, the discipline studying everything which can be used
in order to lie’. The inspiration for modern semiotics is the work of Ferdinand de Saussure whose
model of language, developed in the early part of the last century, was used by a number of
structualists (especially Roland Barthes) in the 1960s to ‘decode’ restaurant menus,
advertisements, fashion, and several other linguistic expressions of the modern age. The
following famous extract from Saussure’s work launched a thousand structuralists. It will, I think,
help you to grasp the essentials of this strand in critical theory: [I]n language there are only
differences. Even more important: a difference generally implies positive terms between which
the difference is set up; but in language there are only differences without positive terms.
Whether we take the signified or the signifier, language has neither ideas nor sounds that existed
before the linguistic system, but only conceptual and phonic differences that have issued from
the system. The idea or phonic substance that a sign contains is of less importance than the other
signs that surround it. Language, according to Saussure, creates the subject (me, you), not the
other way around. The possibilities of this fascinating insight have been explored in a variety of
ways by several theorists (Barthes, Derrida, Paul de Man, Foucault, Julia Kristeva). The law is, of
course, expressed by and through language. And legal semiotics has much to offer legal theory
in its pursuit not only of the interpretation of text, but also in understanding some of the central
questions of jurisprudence, as a leading scholar in the field, Bernard Jackson, persuasively argues.
Should your teacher be bold enough to venture down this interesting jurisprudential path, you
will almost certainly be referred to Jackson’s work as well as that of another distinguished British
semiotician, Peter Goodrich, especially his books, Reading the Law: A Critical Introduction to
Legal Method and Techniques, and Languages of Law. Semiotic analysis proceeds beyond mere
interpretation of the law’s words and symbols and their meaning. It attempts to uncover
(‘demystify’), the political, psychological, and social functions of legal language. The nature of
legal discourse, in other words, may, in many instances, turn out to be little different from
political or moral debate. An important distinction, of course, is that, like Alice in Wonderland,
courts or legislatures decide what a word or phrase shall mean. Jackson makes several ambitious
claims for the rapidly developing discipline of legal semiotics, including its ability to clarify
problems concerning legal validity, truth, the debate between normativism and realism, the
concept of the unity of a legal system, the sociology of law, and the ‘sensitive’ reading of legal
texts. The last mentioned activity is perceptively pursued by Peter Goodrich in his Reading the
Law.
Critical theory and individual rights
Critical scholarship is generally hostile to the concept of individual rights. It tends to take rights
sceptically. A wholesale assault on the concept of rights is an important feature of all three
accounts of society that we have considered in this chapter. The lowest common denominator
resides in a deconstructive critique of both the indeterminacy of rights and their tendency to
shore up prevailing social and political hierarchies. Adherents of critical legal studies regard rights
as one of the features of liberalism which appear to be objective, neutral, and protective of
freedom, whereas, in reality, rights perpetuate the individualism that is actually destructive of
true freedom. This rights-scepticism engenders either an outright rejection of the concept of
rights or the formulation of an alternative vision of rights that extends beyond the communitarian
to what the Brazilian social theorist, Roberto Unger, champions as an element in a programme
of ‘empowered democracy’. Much feminist legal theory shuns rights as formal, hierarchical, and
patriarchal. Law in general, and rights in particular, reflect a male viewpoint. The postmodern
assault on rights lies primarily in its hostility towards the possibility of an autonomous, rational
individuated subject. This controlling idea of rights discourse in the liberal tradition is ‘trashed’
by poststructuralists, and looks instead to ‘what is negated and denied in the process of its
construction: a poststructuralist critique of the totalising narratives of liberal political and legal
thought would therefore expose how the latter tend to constitute the domain in which the
subject may express itself politically in such a way as to effect a closure around the realm of the
political itself’. In other words, the rights-bearing subject has been bled both of meaning and
authentic existence. The structural, psychological, and linguistic patterns of this offensive
constitute, through the analysis of social theorists like Michel Foucault, Louis Althusser, and
Jacques Lacan, a serious threat to the idea of the universal subject. The poststructuralist
onslaught of, in particular, Jacques Derrida, denies the very idea of the subject having an
‘essence’, and hence the impossibility (indeed, meaninglessness) of rights discourse.
Critique
[P]ostmodernists just want to have fun. Postmodernist strategies and styles are often playful,
jokey, and ironical. . . . Intellectual and artistic life can be boring, pretentious, and ponderous.
Postmodernists help us to lighten up. Levity is not to be dismissed, but you may wonder whether
postmodernists achieve this ideal. The expansiveness of postmodernism makes it hard to
criticize. Certainly, there are those who at least call themselves (or are described by others as)
postmodernists whose writing may be condemned for its apocalyptic or Utopian drift. Also some
indulge in the very generalities they are supposed to reject: ‘equality’, ‘democracy’,
‘empowerment’, and so on. These are sitting ducks. Th e more than occasional collapse into
subjectivity should be watched. Also the friendly tolerance of virtually any argument in the name
of postmodernism (with proper credentials and citations) is a disquieting feature of an ‘anything
goes’ philosophy that sometimes wallows in self-contradiction and even nihilism. More
frustrating is the tendency to co-opt the opposition. As a result: According to postmodernism,
because of the ‘instability of meaning’, the ‘surplus of meaning’, the ‘deferral of the subject’, or
the ‘failure of a metaphysics of presence’, there is no distinction between reading or misreading
a text. . . . Other distinctions, such as those between logic and rhetoric, and between argument
and entertainment are denied or dissolved as well. Is this fair? If so, the project may amount to
an intellectual dead-end which—to mix metaphors—paralyses rather than promotes analysis, let
alone serious normative enquiry. If the truth is always contingent, contextual, and shifting, how
are we to decide how to live, what is right or wrong? The death of the subject seems also to
undermine the political project that much postmodern thought seeks to advance. If my identity
as a person is so unstable or if I am merely the site of conflicting ideas and images, then how can
I be held responsible for my actions? Postmodernism is not a homogeneous movement. Nor, as
with any ‘school’, is the quality or writing evenly distributed. The best of postmodernist legal
theory is, as you will discover, highly sophisticated, provocative, unsettling. Its catholic sweep—
literature, psychology, semiotics—generates flashes of genuine insight which illuminate with
their novelty and perception. Many of the arguments, though their shape and object are
necessarily different, have already been contested in other arenas, most conspicuously art and
literature. We should not lament this; postmodernist literary theory is rich in ideas and
intelligence. Law and legal practice are always in need of scrupulous deconstruction. But be wary
of imitation and spectacle.
Reference
Understanding Jurisprudence, Raymond Wacks, pp 319-334