Critical Legal Studies
January 23, 2013
Leah Gardner
Caroline Bélair
Rachel Davidson
Molly Churchill
Assigned Readings
Jonathan Turley, « The Hitchhiker’s Guide to CLS, Unger
and Deep Thought », (1987) 81 Northwestern University
Law Review 593.
Jennifer Nedelsky, « Reconceiving Rights as Relationship
» dans Jonathan Hart & Richard W. Bauman (dir.),
Explorations in Difference: Law, Culture, and Politics,
Toronto, University of Toronto Press, 1996.
Pour aller plus loin:
Patricia J. Williams, « Alchemical Notes: Reconstructing
Ideals from Deconstructed Rights » (1987) 22 Harv.
C.R.-C.L.L. Rev. 401.
Critical Legal Studies (CLS)
Historical Context
- Vietnam War (1955-1975)
- Civil Rights Movement
- 1977: official start of the CLS movement
Rosa Parks
- Foundations:
- Critical Marxism
- Legal Realism (1900-1960s)
- Holmes (late 19th century)
- Recognize "real" way in which judges make
decisions
CLS Critique of Blackstone's
Commentaries by Kennedy (1979)
A Treatise on
the common
law of
England,
18th century
Key elements of CLS
- Legal language and institutions that appear neutral
actually mask relationships of power
- Law = a tool used by the powerful to maintain the
status quo
- There is no single truth: multitude of alternatives
- "It has been said that if Kennedy is the Pope of
CLS, then Unger is the Christ figure" Turley, p. 14
CLS critique of major legal
theories or approaches
- Formalism
- Positivism
- Rationality
- Liberalism
CLS rejects Formalism
- Formalism:
- Legal reasoning = science
- Use of formal rules to resolve dispute
- Legal autonomy
- CLS + realists highlight role of other
factors in adjudication: effects of rules,
values, morals and social, political and
economic context, personal factors...
CLS rejects Positivism
- Think back to the Hart-Fuller debate
- Positivism:
- Morality plays no part in defining law
- Scientific or empirical approach to law
CLS rejects Rationality
- Rationality:
- Belief that there is a rational foundation
for legal doctrine and development
- CLS:
- rejects pure reason as foundation for law
- questions use of reason to legitimize law
- recognizes role of passion, will, etc.
CLS rejects Liberalism
- Liberalism:
- "precisely what liberalism is has been a
source of disagreement" Turley, p. 9
- Freedom to pursue own interest
- 2 particular aspects critiqued by CLS:
- Rights talk
- Neutral adjudication
CLS rejects Liberalism:
Critique of Rights
- CLS Critique of Rights:
1) Rights are individualistic
2) Rights conceal political issues
3) Rights distance individuals
4) Rights serve political and economic
requirements of liberalism (ex. Right to K)
- Critiques are revisited in the Nedelsky and
Williams articles
Trashing
Think expose, expose, expose!
- the political, nonneutral nature of law
- illegitimate power structures
- the ideological underpinnings of legal system
“One must start by knowing what is going on,
by freeing oneself from the mystified delusions
embedded in our consciousness by the liberal
worldview” A. Freeman, in Turley, p. 11
CLS Tools
- Deconstructionism
- no text has an objective meaning
- language is inherently non neutral
- De-Reification
- Reification: Concept is taken out of context,
distorted/co-opted
- Contextuality
- Recognize context in which law
takes place
Summary
Foundations
of CLS
Views criticized by CLS
Tools used by
CLS
Liberalism
Critical Marxism
(rights and neutral adjudication)
Legal Realism
Positivism
(scientific approach to law)
Deconstructionism
Contextuality
De-Reification
Formalism
(legal autonomy)
Rationality
(pure reason legal foundation)
Trashing!
Trashing Exercise: It's Fun!
"[T]he principal aim of society is to protect individuals in
the enjoyment of those absolute rights, which were
vested in them by the immutable laws of nature, but
which could not be preserved in peace without that
mutual assistance and intercourse which is gained by
the institution of friendly and social communities.
Hence it follows, that the first and primary end of
human laws is to maintain and regulate these absolute
rights of individuals."
Blackstone on the Absolute Rights of Individuals (1753)
Roberto Mangabeira Unger
The "Christ of CLS"
Philosopher, Social Theorist, Politician
Core Concepts
•
•
•
•
•
•
•
duality
neutrality
contextuality
context-breaking
plasticity
anti-necessetarianism (false-necessity)
the super-liberal society
Critiques of Unger
-Too optimistic: Van Zandt
-Stability is not all that bad: Sunstein
-Not pragmatic enough to achieve change: West, Cornell
-Too focused on individual: Cornell
- Omission of plight of oppressed people: West
CLS critiques of rights
- Too individualistic
- Obfuscate real political issues
- Alienate and distance people from one
another
- Serve the political and economic
requirements of liberalism
Patricia Williams
"Reconstructing Ideals from
Deconstructed Rights" - Critique of CLS
- Little minority and grassroots membership and input
- Message not accessible or applicable to those who need it
most
- Belief that rights are counterproductive to social change
ignores the degree to which rights-assertion has achieved
social change
- For African Americans, rights are powerful symbolic tool
- Instead of abandoning rights, we need to give them away
as gifts
Nedelsky - Rights as Relationship
Nedelsky's outline:
• Justifying Constitutional Rights
o Rights as Collective Choices
o Beyond the "Pure Democracy" Critique
• Critiques of "Rights Talk"
• Applying "Rights as Relationship"
Nedelsky - Rights as Relationship
Move away from...
Nedelsky - Rights as Relationship
By...
...understanding rights
as collective choices,
with mutable
definitions/meanings.
For example...
Nedelsky - Rights as Relationship
Canadian Charter, s. 15
Nedelsky - Rights as Relationship
...By...
"Democracy has never been
the sole or even primary
value of either the U.S. or
Canada, and it could
never be the sole basis for
a good society" (p. 6)
For example...
...recognizing
democracy is not our
sole societal value.
Nedelsky - Rights as Relationship
Autonomy
understanding it in terms of relationship helps us "begin
to rethink what it means conceptually and
institutionally for autonomy to serve as a measure of
democratic outcomes" (p. 7)
Nedelsky - Rights as Relationship
Implication:
Focus on relationships to foster
autonomy.
By...
Nedelsky - Rights as Relationship
...Understanding that rights serve to structure
relationships - and then making this
understanding central to discussions about rights.
"What rights in fact do and always have
done is construct relationships - of power,
of responsibility, of trust, of obligation"
(p. 13).
Nedelsky - Rights as Relationship
Keeping relationship central to our
discussion of rights allows us to address 3
main concerns CLS scholars (and others)
have raised about "rights talk"...
Nedelsky - Rights as Relationship
Critiques of "Rights Talks"
1. "rights" are too individualistic
"It is my hope that the notion of rights can
be rescued from its historical association
with individualistic theory and practice."
Nedelsky - Rights as Relationship
Critiques of "Rights Talks"
2. Rights obfuscate what
is really at stake
Nedelsky:
A focus on relationship
helps "loosen up the
existing reification" (p.17)
Nedelsky - Rights as Relationship
Critiques of "Rights Talks"
3. Rights are alienating and distancing; they
act as barriers between people
Nedelsky: A focus on relationship helps us
see "that our 'private rights' always have
social consequences" (p. 17).
Nedelsky - Rights as Relationship
Implication: change our understanding of
constitutionalism
"My idea of Constitutionalism is to make
democracy accountable to basic values, to
have mechanisms of ongoing dialogue
about whether the collective choices
people make through their democratic
assemblies are consistent with their
deepest values" (p. 20).
Nedelsky - Rights as Relationship
Major point of agreement with CLS:
the "rights bearing individual" at the heart of
liberal political thought does a disservice to all
and dehumanizes us
•
Major points of agreement with Patricia Williams:
discarding the idea of rights is not the solution
recognition of (inter)dependence (Williams,
p.429)
widening understanding of impact of private
rights (Nedelsky, p. 17; Williams, p. 432)/
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Nedelsky - Applications/questions
1. Torrito c. Fondation Lise T.: How can we
imagine the discussion in this case about right
to privacy being different if it were conceded
that rights are primarily about structuring
relationship?
2. Does Nedelsky's reconceptualization of rights
address concerns raised by people such as
Andrew Petter in the lead-up to 1982 about
Charter rights hiding the problems of wealth
and power disparities?
Discussion Questions
1. Critics have said that Unger is too optimistic and
theory-based. In a recent op-ed in The Globe and
Mail, Jeffery Simpson criticized the Idle No More
movement, stating that "too many first nations
people live in a dream palace." Does 'dreaming'
have a role to play in creating a more just legal
system or is it counter-productive?
1. How useful is the concept of "rights"? What are its
pros and cons?
Discussion Questions
3. Patricia Williams starts out her piece contrasting her
experience as a Black female lawyer and academic
searching for an apartment to that of her White male
colleague. Both were looking "to establish enduring
relationships with the people in whose house we would
be living; [they] both wanted to enhance trust of
ourselves and to allow whatever closeness, whatever
friendship, was possible." Williams explains, however,
that because of their respective social locations, the way
they sought to establish such a relationship was polar
opposite. What implications (if any) does such a
realization have for Nedelsky's proposal to reconceive
rights as relationship?