The Critique of Law: What Is 'Critical' about Critical Legal Theory?

Abstract

Critical legal theory is the enfant terrible of contemporary legal studies. It delights in shocking what it takes to be the legal establishment.' Its roots lie in a deep sense of dissatisfaction with the existing state of legal scholarship. These dissatisfactions and grievances are many and varied; some are more concerned with the state of legal education, others with the political conservatism of legal education, whilst others experience frustration at the failure of orthodoxy to grapple with what they see as the real problems of the role of law in the contemporary world. Advocates of critical legal studies may not all share the same rank ordering of dissatisfactions but are all reacting against features of the prevailing orthodoxies in legal scholarship, against the conservatism of the law schools and against many features of the role played by law and legal institutions in modern society. These reactive roots explain why the development of critical legal theory has taken the forms of 'movements', albeit loose and unstructured in character (Conference on Critical Legal Studies in the United States of America, Critique du Droit in France and Critical Legal Conference in Britain) which pre-date the emergence of any clearly formulated and generally agreed theoretical position. The situation of the critical legal studies movement is not too dangerously distorted if one puts the point polemically; it is a movement in search of a theory, but at the same time it is a movement which has not agreed that such a theory is either possible or desirable. This paper explores the question: does critical legal studies have the potential to go beyond its reactive origins and develop a viable alternative theorisation that is capable of providing a new direction for legal scholarship? I will offer an account of the distinguishing characteristics of the critical movement and then make some suggestions about the possible direction of its development.