EVOLUTION OF CRITICAL LEGAL STUDIES: A JOURNEY FROM ROBERTO
UNGER TO DUNCAN KENNEDY.
Abstract:
This paper’s focus is to understand the development of CLS starting from its association with
Roberto Unger to its development with Duncan Kennedy. Synthesizing Marxist and critical
theory. An evaluation of CLS provided an explosive force from which the notion of traditional
legal formalism and legal neutrality was threatened. As a movement associated with sociology of
knowledge, power dynamics, and the social context of legal practices, Unger and the scholars
following him focused on the critique of legal determinacy and the function of language and
story in the definition of legal processes. The second wave spearheaded by Kennedy saw CLS
deploy extraordinary strategies by engaging with postmodernism and the notions of
deconstruction to add depth to its theory. As good as it is, CLS has had its internal turmoil and
controversies or criticisms from outsiders. Nevertheless, its effect has remained in Afoot marking
its impact in the transformation of legal education, progressive activism, and interdisciplinary
discussion. This literature report aims to present an extensive literature review of CLS and its
theoretical significance, which will demonstrate that CLS is still relevant and could be further
explored in an inquiry.
1.0 Introduction.
Taken together, Critical Legal Studies (CLS) presents a notable, theoretical project in the context
of legal scholarship which aims at critiquing the orthodox theories of law and proposing a more
critical approach towards appreciating the legal institution. The common legal system (CLS) is
the main focus of this research work, which seeks to give an analysis of CLS starting with the
seminal ideas of Roberto Unger and ending with the ideas of Duncan Kennedy. This is important
to grasp and lays the groundwork to the critical issues that CLS raised as to legal theory and
practice.
A synopsis of the Critical Legal Studies.
Critical Legal Studies originated in the latter half of the twentieth century in the United States as
a reaction to purported weaknesses of dominant legal paradigms. Firstly, it challenges
conventional understandings of law as being an impartial arbiter in disputes, but rather when
applying legal rules, power, ideology and social context are at play. Calling into question the
realist belief in a deterministic role of the law, the CLS theorists continue to posit that legal
decisions are; inherently indeterminable and reflect hegemonic power structures.
Unsurprisingly, one of the original essays which signifies the birth of CLS is “The Critical Legal
Studies Movement,” by Roberto Unger, dating from 1983. Unger pointed out the critical points
of the old legal theory and maintained that law preserves the power relations rather than being a
justice or equality of the conflict resolution. CLS theorists such as Unger advanced the argument
that American law was not autonomous and rational, but was conditioned on social, political and
or even economic contexts.
Importance of Understanding Its Evolution.
CL has played a significant role in the development of CLS for many reasons. First, it enables
scholars and practitioners to situate modern discourse within the realm of legal theory.
Understanding how the thought-forms that inform CLS has evolved since its inception aids in
analyzing the purpose behind various trends of critical legal thinking with implications for the
practice of law.
Secondly, analyzing the history of CLS as one of the movements in a development of the legal
scholarship helps to examine the general process of the legal scholarship overall that took place
in the 20th and 21st centuries. Dissimilar to other critical theories, such as critical race theory or
the feminist legal theory, CLS was more precisely developing at the same time with other critical
legal methodologies, which are more oriented on interdisciplinary and social engagement.
Last but not least, it prompted the author to unveil the historical process and regularity of
developing CLS, so that one can recognize the contemporary utility and flexibility of this
approach. Some of the criticisms and approaches of CLS that have been identified have changed
over time but the groundbreaking ideas about law and power in relation to justice, which this
movement put forward still matter greatly for modern legal theory and praxis.
A Brief Insight into Persons Namely Roberto Unger and Duncan Kennedy.
Roberto Mangabeira Unger was born in 1947 and became a philosopher, socialist, and legal
scholar from Brazil. He was a famous member of CLS and is still widely renowned for his early
articles that deconstructed traditional legal culture. Unger’s ideas in the legal thought that
focused on the fact that meaning of the law cannot be determined independently of its social
context, and the CLS was further developed with the inputs of the subsequent contributors.
Duncan Kennedy is 63 years old having been born in 1942 and is part of the “second wave” of
CLS. Following Unger’s theory and numerous other CLS works of literature, Kennedy
developed the different aspects of the postmodernism, and deconstruction, to create more
enlightenment in the execution of CLS. Ignoring hermeneutics and only focusing on legal prose,
language, and argumentation as Kennedy did, was dismissive of conventional ideas about law
and reason.
Therefore, the CLS since Roberto Unger to Duncan Kennedy is not just another theory but an
evolution of a brilliant mind that was creative in his criticism of conventional legal thinking
while offering an appealing solution of social justice. Understanding this evolution thus provides
essential information regarding the construction of law as a social institution and the social effort
towards the incremental development of a fair legal order.
2.0 Origins of Critical Legal Studies.
Background and Context: Aims of paper: Legal Realism and how it influenced legal
practice and education.
Speaking of the United States, Critical Legal Studies – the movement that developed CLS –
appeared towards the second half of the 20th century, as a continuation of legal realism. The
movement that emerged and become dominant in the early twentieth century known as Legal
realism criticized formalistic and doctrinal modes of analyzing law and replacing them with
more sociological approaches to interpreting and applying legal decisions. Regarding the
foundation of the theory, legal realists maintained that judges interpret and apply laws along with
other social facts unlike formalists training that judge’s reliance on legal rules or principles in
reaching their decision.
Realism manifested their ideas and outlook in American legal thinking; they contested the view
of law as an independent, rational system. Legal realists did not deny the effect of legal rules, but
insisted that these rules could only be comprehended through social and political contexts. This
focus on context and social criticism paved way for the coming of what is known as Critical
Legal Studies.
Roberto Unger's Early Contributions.
Born in Brazil, Unger has been a philosopher, theorist of society, and a legal scholar who,
besides playing a major role in the appearance of the Critical Legal Studies, ﾉ It has been stated
that Unger has done a lot in the making of CLS, and more especially his book, “The Critical
Legal Studies Movement” published in 1983 contained the criticism of the traditional legal
analysis and the outline of what became known as CLS.
Unger also rebuked automatism as a mode of legal formalism and contended that law was as a
matter of fact mushed up with power, ideology, and circumstances. He dismissed legal
formalists, denying that law is a self-contained flexible system that resolves disputes legal
decisions were vague and only mirrored societal struggle and contradictions.
To the extent that legal formalism failed to address many of the pressing issues of the time by
remaining bound to the letter of the law, Unger’s critique and his call for critical interdisciplinary
analysis echoed by many legal scholars and activists of his generation. These antecedents set the
stage for the development of the CLS movement that he founded early in his phenomenology.
The Critical Legal Studies Movement.
Critically, Unger’s “The Critical Legal Studies Movement” could be described as a book of the
CLS movement as it was an introduction to the ideas of a movement that was about to happen.
Unger went further than the critical legal scholarship in the latter by explaining the people’s
focus on antagonistic struggles within CLS as a foresight toward the direction that late legal
realist would take.
This paper details one of the major topics discussed in this book by Unger, concerning the issue
of legal formalism. Kramer criticized traditional legal scholarship which operationalized legal
rules, principles and listed cases, for neglecting to expose power relation and social struggle as
the reality of law. Unger criticized the formalism of the analytical method and encouraged
scholars to consider the social and political situation.
What has however remained a more obvious aspect of Unger’s criticism was his rejection of
legal neutrality. He did note law as being inherently political, and that legal decisions were made
not based only on the merits of the case as presented on paper, but rather on the political
ideologies and political power struggles at play. This paper will argue that ultimately, by drawing
out the political implications of law, Unger aimed to help the struggling populace and make
changes to systems of power and subordination.
Critique of traditional legal thought fall in the realm of epistemological and ontological argument
by challenging the notion, sources and authority that constitute the foundation of the legal
system. Legal positivism asserts that laws are man-made, therefore, the validity of laws does not
depend on their morality or justice but on the validity of the legislation that enacted them.
It is clear that fundamental to the establishment of CLS was the program of critical questioning
of the prevailing conceptions of law and legal culture. The legal realism and the sociology of law
also have their roots in such assumptions as the image of law as a self-closed and self-regulating
system of reason-legal rules and principles. In this vein, these theories suggested that judges
were passive receptors, who only implement extant legal standards in a disinterested and
impartial method to great civil and criminal conflicts.
CLS scholars, however, contested this construction of law as a conservative and a-logics policy.
Some of them suggested that the concept of law cannot be understood without emphasizing its
relationship with power, social relations, and ideological struggle. Not infrequently, legal
decisions are subjective and brought in some prejudice by judges themselves, and societal-
political influences.
Moreover, the theorists of CLS rejected the legacy of the dominant legal science, which focused
on interpreting legal institutions’ norms rather than describing legal practice and questioning
societal relations. They contended that legal scholarship should be wider than merely
understanding the legal rules, codes and judicial precedents but should include the social,
economic and historical realities within which the law exists.
Development of the first CLS group in Harvard Law School.
The formation of the first CLS group at Harvard Law School in the late 1970s can be considered
as a construe or leap in the formation of the movement. They are identified with the legal
academics from the Harvard Law School commonly known as the Harvard CLS group headed by
Roberto Unger, Duncan Kennedy and Morton S. Horwitz who aimed at the deconstruction of the
legal understandings of the dominant principles of jurisprudence.
The Harvard CLS group held meetings such as conventions, lectures, and symposiums meant for
the analyses and argumentation of topical issues in the theory of law. The editors selected
contributors from different fields of study which encompassed philosophy, sociology and
political science to write for the growing focus area of CLS. In these exchanges, the Harvard
CLS group received the bounty of the movement and guided its development while attracting
young scholars and activists.
In conclusion, it is possible to name the history of formation of CLS, having pointed out that
legal realism and Roberto Unger were to Carole Pateman and Critical Legal Studies-Some Notes
on Gender and the Legal Subject 279 play an important role in the process at that time. When the
first CLS group formed at Harvard Law School, scholars had the opportunity to lambast
conventional legal reason and argue for a more engaged legal scholarship. These forms of
thinking set a foundation that paved way for the explosive growth and transformation of the CLS
movement.
3.0 Principles and Key Ideas.
Critique of Formalism and Neutrality.
In this case, Legal realism or CLS reject the idea of legal formalism an legal neutrality. When
viewing legal theory in the conventional perspective, there is always the assumption that law is
rational, self-regulating, and follows a set of rules and principles. In the vein of their
conceptualization, the opponents of pragmatism, known as the formalists, believe that judges
simply follow legal rules in the tapes of social conflicts with no influences from their own
prejudices or social contexts.
CLS scholars also dispute such a rationale with regard to law as an egalitarian and impartial
discipline. They opine that legal decisions cannot be made independently of the social, political,
and economic influences of those making the decision or provided to those implementing the
decision. Finally, this paper highlights the fact that legal considerations cannot be seen as purely
rational and neutral, but they reflect judges’ ideological orientations and other more general
social relations, reflecting power and hegemony.
For example, some scholars of the CLS argue that the determination of legal consequences is
under the discretion of the judges. Whereas proponents of formalist theories insist that legal rules
and principles are paramount for resolving IL cases, members of CLS believe that there are vast
opportunities for discretionary conduct on the part of judges concerning the rules. These come
with a risk of bias and discrimination, mainly due to inconsistent actions at the discretion of the
judges in that; enforcement of formal legal principles results in bias and discrimination where
legal principles are obscure or in conflict.
Moreover, the postmodern approaches of CLS scholars give little attention to legal neutrality
whereby, they assert that legal systems cannot be separate from the politics of the society as they
implement interests of the ruling classes. Forces of law and justice and not neutral and
discretionary but are designed ways to sustain existing hierarchies and discrimination. According
to CLS, it is possible to read the law as politics and in doing so, expose the ideologies that
currently govern the legal system.
Emphasis on Power, Ideology, and Social Context.
At its core, CLS was sensitive to the concepts of power, ideology, and social context as key
definers of legal impacts. For CLS scholars do not see law as a mediator of conflict resolution as
the mainstream legal theory emphasizes, but as an instrument of oppression and domination.
Contrary to what most people believe and may be taught in law school, laws and legal notions,
are not as clear cut as various codes may make it seem, but are a reflection of the prerogatives of
the ruling elites.
For example, CLS scholars identify ideologies as playing a critical role in molding the process of
legal analysis and jury decision making. It is important to acknowledge the fact that, self-
preference can still come into play, Thus, judges, just like any other human being are bound by
their own ideological inclinations even when giving their interpretation to legal norms.
Moreover, the ideas themselves which form legal rules and principles are frequently burdened
with ideology that protects the power of dominant social groups.
Like other CLS scholars, CLS scholars emphasize that social context must be the significant to
comprehending the legal phenomena. It is imperative to underline that law does not function
independently that law is presented within the framework of social organization. Therefore, legal
theories and legal decisions are shaped by not only regulations but also by social and cultural
demands and requirements and economic considerations. As CLS posits that laws cannot be
understood descriptively in isolation from their social context, CLS strives to reveal what power
relations and social relations turn into legal relations or influence legal decisions.
Rejection of Legal Determinacy and Indeterminacy.
As part of CLS framework, there is a principle which was named The Rejection of Legal
Determinacy. Deductive theories of law in particular presuppose that legal norms and standards
are legally definite and determinate solutions for legal disputes. The Theory holds that the
judiciary transforms existing legal rules into meanings and the solution to a problem is
discoverable through rule application where the judge follows key principles of cognition and
syllogism.
However, CLS scholars do not subscribe to this ideas or perception of law as a mechanical and
certain reality. They opine that legal ones are typically equivocal and are in essence ambiguous. I
think that legal rules and principles are often vague and uncertain, meaning that the role of the
judge is to decide, which of the possible interpretations should be applied in a certain case.
For instance, the Critical Legal Studies movement focuses on evaluating the possibility of legal
determinacy through arguing that judicial discretion plays a significant role in decision making.
Judicial discretion creates the notion of appreciable liberty for the judges to varying the results of
the like cases or the same issue. This element of indeterminacy can cause legal decision-making
to be unreliable in the situations where there are structural legal uncertainties and contradictions
in the legal rules and principles may exist.
Additionally, scholars of CLS claim that legal indeterminacy cannot but be attributed to legal
rules and principles’ vagueness but is also a problematic situation as a consequence of social and
political contexts. The decisions of legal enable one to introduce one’s own prejudice and top-
priority values as well as take into consideration the goals and objectives of the ruling elite.
Thus, CLS’s critique of law brings a variety of radical and skeptical insights that enable the
denial of the autonomy and rationality of law in favor of the recognition of the dependence of the
legal system on social context and power relations.
This paper aims to explore the impact of Marxist thought and critical theory Both Marxist and
critical theories were developed to bring out the vices that dominated the capitalist society.
This connection is particularly perceptible and apparent in the progression of CLS in terms of the
problems involving Marxist thought and critical theory in shaping the legal system. Western
Marxist and critical theorists like Karl Marx, Max Horkheimer, and Theodor Adorno were
instrumental to CLS scholars in as much as they assisted in categorizing law as being society-
wide power relations system.
Marxist social theory also centers on economic relations and class conflict as the underlying
processes that define the nature of social existence, including constructing legal systems. As the
representatives of Marxism, these authors claim that law is considered to be one of the tools that
preserve those social relationships which exist within a certain society and protect the dominant
class interests. Instead of being equity-oriented laws, legal rules and principles express and
enforce the biases of the majority social formations with the purpose of maintaining the
supremacy of that certain segment of the population.
Other social theorists like the later Frankfurt school represented by Horkheimer and Adorno also
played a key role in advancing the structuralism position that ideology influences development
of institutions like law. They orchestrated the thought that hegemonic ideas help to perpetuate
relations of domination, the conditions of subjugation of one group by the other, substantiating
social injustice. In response, CLS employs a critical approach assuming that analysis of the law
must reveal the ways in which it actually operates to reproduce power relations and ideologies.
In conclusion, critical legal studies is best understood by its opposition to legal formalism and
legal neutrality, Aberrance in power, ideology and social context, non-acceptance of Legal
determinacy and association with Marxist thought and Critical theory. These areas of thought, as
well as Kritik, undergird a more activist and transformative approach to legal education and
scholarship, which can disrupt the current system and work towards a justice-oriented legal
future.
4.0 Development and Expansion.
Spread of CLS beyond Harvard.
Though, the roots of Critical Legal Studies (CLS) can be traced back to its formation in 1988 in
Harvard Law School; the movement did not confine itself at Harvard and soon more and more
law schools in the United States and other parts of the world showed interest in this movement.
Some of the early key figures in formulating CLS included Roberto Unger, Duncan Kennedy,
and Morton Horwitz who helped popularized these ideas as well as nurtured critical
consciousness by convening meetings and debates among scholars and activists.
Such changes in goals and values were at the heart of CLS as a movement that sought to
challenge the increasingly irrelevant formalist and preoccupation of traditional legal theories.
CLS established a structure for indicating how law was grounded in social, political and
economic relations thereby thwarting the interpretation of law as an impartial discipline. This
was a good idea since it coincided with the fears of many scholars and activists on civil rights
and disparities.
As the idea of CLS started taking root, new CLS groups were established in top law schools in
United States of America, such as Yale Law School, Stanford Law School, and Columbia Law
School among others. These CLS groups arranged conferences, seminars and workshops from
which members were able to deliberate on issues of legal theories in addition to production of
inter-disciplinary information. In this way, CLS moved on and introduced new themes and
approaches for responding to new issues and concerns in legal academia.
Also, CLS started to gain attention beyond academia of law with scholars from the other fields,
which include philosophy, sociology, as well as political science, making input to what in the
future developed into the critical legal studies field. It became clear that foregrounding issues
and debates from several disciplines at once enriched the CLS scholarship and extended it
beyond the domain that could be relevant to traditional legal studies.
Contributions of Other Scholars to the Movement.
Even though CLS’s early specialists provided innovative developing CLS, other scholars whose
viewpoint and stocks in regard to CLS were different, offered their input as well. These scholars
broadened the work of CLS through the integration of knowledge from other fields like
feminism, critical race theory, as well as post colonialism and the inquiries of fresh terrain in
legal theory.
For instance, Catharine MacKinnon and Patricia Williams as two of the leading theorists
introduced the feminist perspective that actively critiques the received legal doctrine. They posit
that it is common to find that legal rules and principles incorporated in the society bear
influences stemming from patriarchy and therefore only subjugate women and other minorities
within the society. Through these critical readings of law, all these scholars helped in
deconstructing the complex interplay involving law, power and justice especially from the
feminist standpoint and paradigms.
Like other critical theories, critical race theory was advanced by scholars like Derrick Bell and
Kimberlé Crenshaw who sought the orthodox legal theory in the light of race and racism. He
claimed that law in particular is a key instrument in maintaining and legitimizing racism and thus
the globalized racial hierarchy. Through such, these scholars SMS010712 depolarized the law by
showing its racial nature and demanded a less racist and better legal structure.
Critics from the postcolonial tradition particularly Frantz Fanon and Edward Said also advanced
CLS as they articulated how the law has worked to subjugate colonial subjects. They contended
that the Colonial legal systems were basically aimed at inherent colonial masters’ interest and
were meant to disenfranchise native inhabitants of colonies. By applying post colonialism
perspective to the study of the law, these scholars gained insight into the imperialist impact on
the societies as well as pursue a more colonial and liberating approach towards the analysis of
law.
Effects on Diverse Branches of Law and Multiple Countries’ Interaction.
Concepts such as CLS have meaningfully influenced multiple legal disciplines and
interdisciplinary fields, largely rejecting the premises of the modern legal belief system while
encouraging critical innovativeness and social involvement of legal analysis approaches. Another
substantive area that has benefited from CLS is its focus on the institutional and socio-political
context of law and ideology. In this way, CLS has provided valuable critique by emphasizing the
political aspects of legal decisions and illuminating the social hierarchies at work within them.
Specifically in the field of constitutional law, CLS has raised discussions on the function of the
judiciary, and specifically the power of constitutional invalidation by the Supreme Court. The
scholars of CLS have dismissed the concept of the political independence of judiciary and turned
into a concern that courts are simply the protector of the interests of the ruling power. They have
also criticized the judiciary authority on the principle of judicial review and demanded for
changes to be made whereby in future the social and political players would have a say in the
constitution of the country.
The legal theory CLS questions the validity and the comprehensiveness of the reigning legal
standards throughout the world and the capacity of law as putting justice into practice on a global
scale. CLS scholars have claimed that the ‘Westernization’ of the law is undesirable and has
sought to promote the use of law that is culturally sensitive, thus embracing plurality within the
cultural matrix of international law.
Moreover, CLS has impacted upon the interdisciplinary perspective by encouraging the scholars
from various fields of specializations like philosophy, sociology, political science, anthropology,
and other fields. This has been made possible by the increased inter-disciplinary focus in CLS
scholarship, thus enhancing legal consciousness with a different perspective and different
methodological approaches.
Overall, CLS has made diverse contributions to multiple branches of the law and lawful sciences,
as well as to interdisciplinary perspectives, whereby it has questioned the popular assumptions in
legal rationality and encouraged the mission of the law as a direct social praxis. The concerns
that CLS brought into focus, namely, the politics of law and the ways the legal culture reflects,
reproduces and rein163 forces social injustice, have contributed to the creation of a legal system
that is more responsive to the needs of justice.
5.0 Duncan Kennedy and the “Second Wave”.
The main aspects of the work and ideas of Duncan Kennedy.
His name, alongside those of Claus Fererra and other second wave theorists, became prominent
in the later part of the twentieth century and forming the CLS. : As a professor of Welsh and
York University born in 1942, Kennedy’s scholarship influenced the enhancement and definition
of CLS theory. Obtaining his education from Harvard Law School, after which he became a
member of the faculty, Kennedy is a theorist of significant breadth, whose work reflects heavily
in contract law theory, property theory, and constitutional theory.
Kennedy’s work as notable for its method consisting of intertwining of law and language, as well
as rhetoric and narrative, which defines American legal discourse. Unlike the CLS theorists who
wanted to paint with broad brush and eliminate traditional legal reasoning, Kennedy stood ready
to turn the insights of the CLS tropes to positive use by offering a more nuanced vision of law as
a form of discourse.
Critique of CLS's Early Assumptions and Methods.
Kennedy aligns himself with many of the foundational views of CLS but has also voiced some
concern with the first mobilizations as well as epistemological processes of CLS. For example,
having criticized certain aspects of critical legal studies, Kennedy expressed concerns regarding
the seemingly deterministic and reductionist approach to the analysis of law embraced by some
CLS scholars. He claimed that such an approach that CLS took of decoding exercises that try to
unveil the power relations and politics implicit in legal processes and results tends to distort the
understanding of the very nature of these legal phenomena.
Kennedy also expressed the similar concern with what he saw as one of the weaknesses of some
of the CLS scholars; their inclination to do more theorization than empirical research and even
overemphasis on the doctrine without a consideration of the real world legal systems. He
complained that although CLS was formed as critical pedagogy that exposed discrepancies in the
existing legal order, CLS theorists ignored practice of law and everyday legal work of judges,
lawyers, clients and parties.
Moreover, Kennedy expressed doubts regarding what he described as the ‘mystification of the
law’ by some of the scholars of CLS – the way they painted law as unfathomable and
paradoxical. He criticized this account of law as a framed contest or ongoing struggle and
indeterminacy, as it threatened to take the wind out of the sails of reformist struggles.
Emphasis on Rhetoric, Narrative, and Language.
To be specific, I would claim that one of Kennedy’s most profound contributions in the realm of
CLS theory has been his focus on rhetoric, stories, and language as key aspects of legal
argumentation and interpretation. His book “Fin-de-Siècle A Critique of Adjudication” published
in 1997, Kennedy posited that the process of legal adjudication entails not only rational or
formalistic steps but rather is infused with a certain rhetoric and the ability of the judges to tell
stories.
Explaining how pressures of all types of formal legal language work in specific cases, Kennedy’s
critical legal rhetoric closely complements tract on a critical rhetorical agenda rising from
assimilation of theoretical tools from classical rhetoric, and from compelling narration. He
suggests that legal writing, including cases, statutes, and contracts, do not just convey
information in a neutral and obvious way: instead, they are politically charged and carry
ideological implications. Drawing on the LOA, Kennedy tries to fit the practices of judges and
lawyers into a sociopolitical context and reveal the implicit ideologies and relations of coercion
which underlie legal transactions.
In addition, it is noteworthy that Kennedy often spoke about the importance of story and thus, we
see the presence of narrative as an instrument of understanding the legal process. He explained
that judges develop stories as a way of perceiving and rationalizing legal cases and also in order
to vindicate themselves and others. Through consideration of the particular forms of storytelling
deployed in a given legal text, and the figures of speech and rhetoric that underpin them,
Kennedy aims to identify and expose the system of beliefs that inform the legal processes, as
well as the relationships of power that govern decisions made in the context of the law.
Engagement with Postmodernism and Deconstruction.
The two movements that seem to influence Kennedy’s work include postmodernism and
deconstruction, movements that erupted in the late twentieth century and dismissed the modern
approaches to thought and research in their entirety. The postmodernism, which emphasized the
relativity and the instability of the signification and deconstruction with its stress on its text’s
plurality and interpretative undesirability became the new research methods for Kennedy and
studying law as the discursive practice.
As to Kennedy’s late work, he discusses the potential consequences of the postmodernist and
deconstructing approach in legal theory and practice. The author tries to prove that law is not
inherently coherent or unitary but a social construct that is a site of contestation. Statutes and
case law opinions are not determinative or fixed, but instead malleable and always capable of
being reinterpreted and contested by actors within legal orders.
Besides, Kennedy emphasizes how legal discourses are radically contradictory and circular,
which inevitably specifies the concept of the legal reasoning as well. In challenging, in his own
the ways in which law develops and presents itself as a coherent and closed system of rules and
meanings, Kennedy brings out the contradictions in law and creates room for other ways of
practicing and reading law.
All in all, it could be concluded that the body of work published by Duncan Kennedy has had a
truly important impact on the improvement of Critical Legal Studies theory. He has been
instrumental in opening up and enriching legal scholarship by focusing on rhetoric, narrative,
language classification, amongst other aspects as integral to the practice and interpretation of
law. Additionally, he has incorporated postmodernism and deconstruction as the extensive idea
of legal reasoning and tried to reshape the legal scholarship as a critical project in this sense.
6.0 Debates and Divergent Perspectives.
Internal Critiques and Disagreements within CLS.
It has been pointed out earlier that CLS is critical of traditional legal thought and therefore can
be assumed to share a lot of common ground. In this sense it may be useful to know that Critical
Legal Studies has not been without internal disputes and debates for important theoretical or
methodological questions. A crucial controversy of the CLS concerns legal relativism and the
assentation that cannot be a rational and self-contained object of study law.
Certain scholars who are members of the CLS and who have embraced both postmodernism and
deconstruction, assert that, in any given legal matter, the outcome is always already determined,
so legal decisions are necessarily arbitrary. They object to legal formalism, the theory asserting
that there is certainty and definitely clear legal rules and principles that always supply definitive
answers to the questions of law. They argue that the social relations of power, ideologies, and
social contexts play a significant role in determining the outcomes of legal processes.
However, other scholars under the banner of CLS are more pessimistic and question the viability
of the assumption of legal indeterminacy and affirm that the law is a rational and reasonable
system at the same time. With this acknowledgment of the deterministic notions of power and
ideology on legal decision making, they posit that law has its own intelligibility and rationality.
They warn against the danger of a legitimation of law and the threats presented by its method of
reinvention.
There is yet another form of internal critique in CLS, which concerns with or with reference to
philosophy, sociology, and political science. As for CLS either some scholars call for more
interdisciplinary and practice-oriented legal grounded studies and research while others are
rather skeptical about certain dangers of the interdisciplinary legal cooperation. They give rise to
how they lead to a potentially undesirable proliferation of contexts and thus a potential watering
down of the specificity of legal analysis together with a possible eradication of the unique
identity of law as a discipline.
Additionally, CLS has been considered by some commentators as not being relevant to legal
practice as it does not address practical legal questions but consists of dogmatic argumentation.
Critics claim that CLS focused on deconstructing the traditional legal paradigm; therefore, there
is an underserving of the socio-political and administrative principles of law and the lived
juridical legal persons like judges, lawyers, and parties to the suit. It seems to Denzin that current
legal scholarship lacks a sufficient ‘earthy’ orientation that would reflect the everyday
experiences of those who encounter and are impacted by law.
Recognition of Other Legal Perspectives: Feminism, Critical Race Theory, etc.
CLS has also been constructively interacting with other, various forms of critical legal theories,
including feminism, critical race theory, postcolonial theory, and others. These interdisciplinary
interactions have made useful contributions to CLS scholarship by adding new angles and
interpretations to the interplay of law and society.
One of the most significant critiques coming from postmodern delegitimizes is that of those
feminist legal scholars who have deconstructed conventional legal reasoning by arguing that the
law reaffirms gender subordination. Some of the people say that the existing rules of law and the
principles prevent women and other marginalized groups from accessing justice and being
treated equally. Several theorists in CLS have use feminine thoughts in the efforts to generate
fresh perspectives in understanding the connection between law, power, and justice.
Similarly, critical race theorists have contemplated the conventional systems of legal thought
based on race and racism. They say that, to a significant extent, law retains its historical role as
an instrument of the perpetration of racism and other systems of oppression in society based on
such seeming rationality of the US legal system as color familiarity and equality of all citizens
without distinction. Some of the works from CLS scholars have used critical race theory to
reveal the racial things of law and also question the legitimacy of the law as impartial.
Another vital area in which postcolonial scholars have engaged CLS is by pointing out how
law’s functions were often complicit in colonial domination and oppression. They explain that
the colonial legal systems were designed to preserve colonial structures as well as to control and
subordinate indigenous people and groups. Recognizing that legal norms are not universal CLS
scholars have turned to postcolonial theory to point out inadequacies of the modernist paradigm
and to promote a more progressive approach for developing an emancipatory legal scholarship.
Mainstream legal scholastics and conservatism metaphysical censures.
Despite its goals and successes, CLS has not been without its controversies, with mainstream
legal scholars and conservatives expressing their disdain for its radical and revolutionizing
mission. Such critics therefore assert that maintaining and nurturing with such an approach is
disastrous to the institution of law since it minimizes the critical respect lawyers and law schools
such as CLS should have. They argue that CLS scholars challenges the law and has a narrow and
negative view of the law by negativism, Consequently, they held that CLS scholars’ view of the
law is anti- rule of law and anti-justice.
Moreover, CLS has faced a lot of flak for being the ‘armchair’ theory, insomuch as they are
charged with offering abstract and theoretical ideas devoid of real-world application. Critics
extend that, due to the textual analysis approach the center undertakes, de-sensitizing the legal
texts and proving their political implications, it makes little sense to legal practitioners and
policy makers who are busy solving real legal issues. Both authors advocate for a new generation
of legal scholarship that is of more practical bent and is focused on the issues that are present in
the contemporary world and how they can be solved.
Overall, CLS evoked internal discussions and controversies regarding the essential
epistemological and methodological concerns, along with further constructive engagement with
other trends in critical theories of law. Although traditional legal scholars and conservatives have
expressed skepticism about CLS’s agenda as a result of believing that their measures are far too
radical and revolutionary, many believe that CLS carries an important social critique of the
current mainstream legal theory and a way to designing a new form of a more progressive
justice.
7.0 Legacy and Influence.
Impact on Legal Education and Pedagogy.
The Anti-Traditionalist Narrative of CLS has been highly influential in legal education and
regarding the theory teaching the conventional and social perceptions and critique it. CLS has
many implications on the curriculum in various law schools; classroom practices has changed
because of incorporation of critical perspectives in such basic courses as contracts, torts and
constitutional laws.
Another area where CLS has had an impact is in the way that teaching and delivering law has
been conducted, forcing law professors to be more creative in their teaching approach and
adopting more teaching methods that are interactive as well as cross disciplinary. To complement
these concepts, CLS-inspired courses involve use of case studies, simulations, and role play in a
qualitative manner to enhance students’ critical thoughts. Moreover, at CLS, students are taught
to change with the traditional approaches in considering legal rules and principles and to think
about the social and political impacts of certain legal decisions.
Moreover, CLS has challenged law schools to reflect on their policies and equitably admission
criteria with the aim of offering diversity and inclusion. Promoting affirmative action, including
the granting of scholarships to African American students or other oppressed groups, and
carrying out the diversity training for faculty and students to enhance multicultural sensitivity of
the learning fraternity to embrace the oppressed groups of students.
Influence on Progressive Legal Activism and Social Movements.
CLS has also contributed or impacted progressive legal activism and social legally working
toward the changes of legal inequalities and injustices on the basis of CLS theory. Social reform
Lawyers influenced by CLS have litigated, lobbied, orchestrated, and mobilized to achieve legal
changes in various areas of human life such as race discrimination, sexual, and employment
oppression.
For instance, while working together with others under the banner of the Center for Lesbian and
Gay Studies (CLS), lawyers and activists have pursued litigation which seeks to end
discrimination in many areas such as housing, employment, and education. They have also urged
the passage of liberal legal reforms like the affirmative action, labor, and environmental laws.
In addition, it can also be seen that CLS has encouraged certain social movements which are not
purely of legal liability, namely the civil rights, the feminism, and the labor movements. It is
worth noting that these movements have joined hands with CLS-inspired activists to achieve the
common visions of social justice and equality.
Reception and Adaptation in Different Cultural and National Contexts.
CLS has infiltrated and been incorporated into different cultural and national settings which has
resulted in the development of diverse forms of critical legal theory. CLS was started in the
USA, but it has since been adopted by other countries or regions, with the application of the
developments made being made within the frameworks of the relevant legal systems and
cultures.
For instance, in Europe, Kester and others have engaged the CLS arguments to question the
effects of neoliberalism and globalization on the European law. They claim that with the creation
of the European Union law, specifically of the economic one, social welfare in Europe, along
with democracy has been diminished as market culture and deregulation accelerated, and
corporation power was strengthened. A group of scholars who have been influenced by the
Centre for Law and Social Justice theorists have argued for more democratic and socially just
European law.
Pragmatically, CLS scholars in Latin America have applied these principles to question the
colonial and imperial influence on Latin American legal systems. Delivering a critique of the
social function of Law in Latin America, they pointed out that it has worked in favor of the
dominance of the strong and maintenance of class distinctions. CLS-inspired scholars within
Latin America have advocated for choosing anti-colonial and liberator analytical perspectives
and working more towards understanding the conditions of oppressed groups.
Responding to CLS some critical Asian legal theorists have adopted the tools in arguing against
authoritarianism and in the Asian legal cultures state-sanctioned violence. Occupants of the
Superiority Complex decry that Asian laws have for most of the time been oppressive to the
dissent and the political opposition. Legal education reforms in Asian countries that embrace
CLS are part of a Call for a more liberal process of legal reform which pays attention to human
rights democracy.
In conclusion, CLS has left a permanent impact on the scholarship and curriculum of and
pedagogy of law, progressive legal practice and social justice and the phenomena and practices
relating to the embracing, incorporation and alteration in other civilizational and juridical
contexts. Nonetheless, CLS persists as an inspiring and provocative movement for politicians,
scholars, citizens and activists aspiring to combat legal injustice and to establish justice and
fairness.
Conclusion.
Summary of Key Findings.
In the course of this analysis of CLS, we have traced the history of CLS, its tenets, its evolution,
the controversies that have surrounded it, its impacts, and its contributions or otherwise to the
practice of law and jurisprudence. As a scholarly movement, CLS was born out of a critique of
legal positivism / legal formalism and a rejection of the traditional legal reasoning methodology
which Clarendon had established. CLS scholars such as Roberto Unger, Duncan Kennedy, and
Morton Horwitz rejected the liberal model that law was formalistic, abstract, and independent of
political influence challenging the experiential, historical and discursive realities of power,
ideology, and social context.
It influenced CLS to take up more of an interdisciplinary approach by incorporating aspects of
feminism, critical race theory, and postcolonial studies into its scholarship. By defining social
problems and bringing them to the courtroom, CLS-inspired legal activism and social
movements have waged many forms of legal struggle that seek social change and justice, the
legal struggle has targeted particularly areas of discrimination, gender, and economic status.
CLS nonetheless remains relevant and cannot be dismissed today for its contribution to legal
education and pedagogy, for progressive legal activism and creation of social change, and for
locals’ reception and adoption of theories that originated in North America. CLS has stimulated
the educational management of law schools to reconsider the curriculum and organically
incorporate critical theories and approaches in functional courses, as well as fostering diversity
and inclusion. These legal activists, working under the African-inspired CLS, have employed
litigation and advocacy to question legal injustice and disadvantage, whereas different CLS-
inspired scholars in different parts of the globe have transplanted and applied the insights of the
movement in their respective legal systems and social frameworks.
A Critical Look at the Need and Relevance of CLS in the Current Society.
Considering modern global environments as multifaceted and dynamically evolving, one cannot
deny CLS’s importance and applicability to modern scholars. In the face of ongoing social ills
like police brutality. Despite its limitations, CLS provides a critical lens through which we can
examine and eventually respond to the power relations and disparities embedded in legal
processes and decision-making in America.
For CLS, power, ideology and social context bring out that law is not an objective entity and act
but rather a struggle dominant on a given site. As a critical approach to law and legal education
that uncovers the political aspects of legal practice and illustrates how existing laws strengthen
social injustice in society, CLS advocates for a process of change that would bring about a legal
system that fosters justice for all citizens.
In addition, CLS challenges the reader to think about the, ifs and whens of legal rules and
principles and to read legal decisions more as social and political statements. This project seeks
to argue that education, when it is critical and culturally located, can challenge distorted legal
rhetoric and weigh power and interest in legal processes to seek meaningful legal transformation
and social justice.
Recommendations, Directions for Further Research and Study.
In the following year, there will be some paths that researchers’ interest in the principles and
practices of CLS can consider to undertake further studies and investigations. CLT is just one
theoretical framework that scholars and activists can employ in analyzing the relations between
law and power in society; there is more potential in connecting CLS or CLT with other
theoretical paradigms like ‘theoretical approaches of feminism, race, or post-colonialism.
In addition, it is suggested that future research can compare and analyze the effects of CLS on
various fields of law and in the context of different societies, to benefit from the analyses and
conclusions that accept social justice and equality. The present research aims at exploring how
the proponents of CLS-inspired legal activism and movements can contribute to the progressive
legal change and transformative social justice by analyzing experiences of both successful and
failed attempts.
Moreover, for the future research objectives, it will be relevant to look at the consequences of
CLS for the curricula of the educational institutions for law and to define how CLS can
contribute to the cultivation of the critical mindset among the students and legal professionals.
Through the integration of CLS perspectives in the legal curriculum regarding the law and in
their methods of law instruction, one can equip the next generations of legal professionals and
equality activists with tools necessary to pursue legal justice and combat legal injustice.
In conclusion, the Critical Legal Studies perspective is still very much alive and valid, as it
retains its ability to provoke creative thought and action from legal scholars and activists across
the world today. Thus, the critiques and the alternative approach proposed by CLS shed light on
the social problems of law and the contradictions within the legal field to enlighten everyone
towards achievement of progressive and more just society. As we are yet to foster further
understanding of law and society it is the CLS that leads us to further understanding and a better
world.
