Critical Legal Studies

Question 1

What is the critical legal studies movement?

Answer 1

CLS sees law as being intertwined with everyday political and moral argument, struggles and experiences.

It attempted to apply to law the ideas of European theorists such as Foucault, Marx and Habermas.

In contrast to jurisprudence, the crits deny that the study of law can be treated as a discrete and distinct object: “Law is politics. It does not have an existence outside of ideological battles within society.”

Law and legal reasoning are merely techniques used by those in power to preserve their own position.

Can also be seen as a counter-response to Dworkin’s optimism about the potential of the legal system.

Question 2

What are crits’ four main critiques of liberalism?

Answer 2

1. Liberalism focuses on individual rather than class, which ends up promoting class oppression
2. Liberalism celebrates individual rationality at the expense of obscuring domination and oppression
   Eg. Upholding freedom of contract, even if the contractual terms are unfair
3. Liberalism does not give enough importance to societal responsibility
   Eg. No positive duty to protect others from harm
4. Liberalism’s focus on individual rights impedes the realization of societal fairness or justice
   Eg, in the US, freedom of speech includes racially intolerant speech

Question 3

According to the crits, what are the 6 ways by which the law encourages oppression, injustice, and inequality?

Answer 3

1. Law appears to be ‘neutral’ when it is not:
2. The public-private divide, which hides dynamics of oppression and subordination by locating them in the ‘private’ rather than ‘public sphere’
3. Law as entrenching devices for class oppression and domination
4. Indeterminacy of legal argument, allows decisions based on ideology
5. Indeterminacy of legal argument leads to legal doctrine being reflective of particular ideologies, especially those of class and capitalism
6. Law as a means of maintaining the social status quo that prevents social transformation
   Eg. Power = money = good lawyers = win cases

Question 4

What is indeterminancy?

Answer 4

The position that in any case, the judge could produce a wide range of decisions which were formally correct under the canons of legal reasoning.

It is not the words of the rule that produces the decision, but a range of factors that are anything but universal, rational or objective (i.e morals, customs, biases)

Thus, legal rules cannot be relied on to produce determinate results without subverting its supposed qualities of objectivity and moral neutrality.

Question 5

What is the public/private distinction?

Answer 5

Society often draws a distinction between the ‘public’ realm (which are subject to government control) and the ‘private’ realm (which is treated as a haven from government intrusion).

Yet, plenty of coercion and oppression occurs in the private realm; Domestic violence, economic oppression.

The refusal to intrude into the private realm means that this oppression and coercion is allowed to continue.

Also, some of the rules of private law are also influenced by official policy so they are not entirely devoid of government influence.

Question 6

What is outsider jurisprudence?

Answer 6

Both feminist legal theory and critical race theory consider ‘outsiders’; the extent to which the law reflects the perspective of and the value of white males, and the resulting effects on those who are not (i.e outsiders).