Critical Legal Studies Movement Research Articles

Trashing the Tables: The Critical Legal Studies Symposium of the Stanford Law Review, Then and Now

When the critical legal studies (CLS) movement emerged in the United States, many in the legal community were shocked by the movement’s radical calls to remake legal education. But the movement also presented bold criticisms of quantitative legal scholarship and calculation in law that have proven remarkably prophetic. This article resuscitates the CLS movement’s concerns over “scientific law” in one of the movement’s most canonical works: the Critical Legal Studies Symposium issue of the Stanford Law Review in 1984. Along the way, this article explores the scope and limits of CLS admonitions regarding quantitative research and legal problem solving for the present day.

KRITIK TERHADAP FORMALISME HUKUM

This journal examines the resistance to the Legal Formalism School which alludes to it from the point of view of basic reports. This legal critique incorporates liberal, radical, and postmodernist ideas as well as Marxist ideas. The background is legal certainty, both those that guarantee the fulfillment of laws that do not require overlapping rules or justice for the formation of laws. This journal aims to briefly familiarize readers with concepts in critical legal studies from various legal perspectives. In addition, for good journal results, the author must convey the goals and context of the development of Indonesian law. This writing uses content analysis research, which is a comprehensive discussion of critical legal studies. The results of the discussion show that the goal of the critical legal study movement to unite various legal perspectives is the main principle of Critical Legal Studies which continues to develop in Indonesia. Because of this legal aspect, recent legal developments in Indonesia are still relatively new. Some formal legal activists use the history of the Critical Legal Studies Movement to understand oppressive legal structures and policies. Therefore, criticism of legal formalism is supported by the fact that several applications are needed, both in terms of themes and movement strategies, as support for the fulfillment of legal formalism from various prevailing legal ideologies.

법학에서 비판의 역할 재고 - 미국의 비판법학운동을 소재로 하여 - ― 미국의 비판법학운동을 소재로 하여 ― 국제법의 사회학적 접근에 대한 비판적 고찰 ― 실행이론에 주목하며 ―

법학에서 비판의 역할 재고 - 미국의 비판법학운동을 소재로 하여 - ― 미국의 비판법학운동을 소재로 하여 ― 국제법의 사회학적 접근에 대한 비판적 고찰 ― 실행이론에 주목하며 ―

TELAAH TERHADAP MAZHAB HUKUM KRITIS: KEMUNCULAN, PEMIKIRAN DAN KRITIK

The emergence of the Critical legal studies movement (CLS) in the map of legal thought which mainly developed in America is interesting to study further from its historical aspect, content of thought and criticism of the thoughts of critical legal school figures. This paper with all its limitations will try to elaborate further and provide an analysis of CLS. The results of the analysis show that: First, the critical school of law emerged as a thought movement that provided a new alternative to legal realism which was considered unsatisfactory and still traditional. In general, CLS thinking is a response to positivistic liberal legal thought which is considered a failure. Second, the legacy of CLS thinking basically tries to package a theory that aims to counter established thinking, especially regarding the norms and standards that have been built-in in existing legal theory and practice, which tend to be taken for granted. ), namely legal norms and standards based on the premise of liberal legal justice teachings. Third, the criticisms that arise regarding CLS's theses and claims relate to the following matters: regarding its relation to realism, regarding the rejection of liberalism, regarding fundamental contradictions, regarding deconstruction, regarding indetermination and regarding the unity of law and politics.

Neoliberalism and Radical Rights: On the Work and Theory of Law and Organising

This article aims to contribute to scholarship regarding the critique of rights through the examination of the role of rights discourse in the furtherance of what is generally termed ‘community organising’—in particular, tenant organising—in the social and political context of neoliberalism. Conceptions of neoliberalism advanced in the work of David Harvey, Michel Foucault, Wendy Brown, and Bonnie Honig are synthesised to explicate the material and discursive role of law in the maintenance and furtherance of the neoliberal project. The article assesses the left-legal critique of rights presented primarily through the Critical Legal Studies Movement alongside the role of legal practice and legal discourse in countering neoliberalism. The article argues that rights claims concerning collective organisation, such as those commonly afforded to workers and trade unions, present a unique exception to the left-legal critique of rights in providing the means by which oppressive social relations may not only be remedies, but overcome. The works of Chantal Mouffe and of Roberto Unger are instructive in this regard and are placed in conversation with theories of community and labour organising. The article concludes by sketching the application of this conception of organising rights to the problem of housing and tenants’ rights under neoliberalism.

Beyond Texts? Towards a Material Turn in the Theory and History of International Law

Abstract While the history of international law has been mainly dominated by intellectual history, the neighboring humanities and social sciences have witnessed a ‘material turn.’ Influenced by the new materialisms, historians, sociologists, and anthropologists have highlighted the role of objects and nonhuman infrastructures in the making of the social. Law, however, has been conspicuously absent from these discussions. Only until recently, things began to be studied as instruments of – global – regulation. In this article, I trace an intellectual history of the intellectual history of international law, contextualizing it since its inception in the so-called ‘Cambridge School’ to its spread into the legal field via the Critical Legal Studies movement and its final import into international law in the last two decades. I conclude arguing that international legal historians can depart from the ‘well-worn paths’ of intellectual and conceptual history to engage with the materiality (past, present, and future) of global governance.

A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement

Abstract Critical Legal Studies Movement (CLS) was a critical jurisprudential movement that developed during the 1970s, and came into being in 1977 when the first conference on critical legal studies was held. This article traces the intellectual origins of CLS, providing a comprehensive analysis on its history. The movement was, this article argues, a radical extension of the changes that had occurred in legal scholarship during the 1960s and early 1970s. Moreover, it was a result of a complex mixture of intellectual, scholarly, and political aspects, and it should not be reduced into any one of them.

Relevancy of CLS Movement in Jurisprudence; A Reference of Nepal

Critical Legal Studies (CLS) is the movement, as the successor of American realism, rejects almost all previous philosophy of law. According to this movement, early philosophy has only analyzed brighter aspect of the laws and has forgotten darker side. As each and every discipline has both dark and bright aspect, CLS movement has only looked upon darker aspect of the legal activities. It has evaluated the law from the top of the Ivory Tower. Prior than this movement, the critical tradition was appeared in other social discipline. Gradually, it started to influence in the field of law. CLS movement emerged when some of the professors of Yale Law School i.e. Mark Tushet, Duncan Kennedy, David Trubek was fired from their jobs as they became extreme critic of formalist tradition of legal education and unconcerned behaviour of senior professor. Later, some of the professor of the Harvard Law School widely criticized and demanded for reappointment of them. Instead, they also became scapegoat. Then, they started to lunch movement from critical tradition with series of conferences, seminars and symposium continuously. Student also exhibited their concern in inconsistencies of law in book and law in actions. The fired professors also adapted the movement of students. All these incidents contributed critical legal study movement to be flourished in America, which gradually spread into other country. They looked at dark side of legal discipline in multitude of issues. They developed new dimensions to look upon legal discipline which is later accepted by feminism jurisprudence and LatCrit movement with racial rights issues. Finally, hierarchy without quality is rejected by this movement.

Modern Trends in Legal Thoughts: A Jurisprudential Outline

The subject matter of this paper – Modern Trends in Legal Thoughts – connotes new thinking in Legal theory. Themes like; the current trends in analytical and normative jurisprudence, theories of justice, critical legal studies movement, feminist jurisprudence, critical race theory, and post-modernist jurisprudence, among others, constitute strands of the ‘new’ jurisprudential thoughts to be examined in this paper. ‘New’ in this context does not mean ‘novel’, because every product of law in the real sense, may be no more than the product of its time and place. This point is further illustrated by the comments of Freeman, M.D.A, that ‘contemporary thinking and contemporary questions have often rekindled interest in, and thrown new lights upon classical writers. It is the intention of this writer to approach the subject as a genealogical exercise, with the hope that at the end of the paper, a modest attempt to build a kind of bridge between theory and practice of law, would at least have been discernible.

The reality of law: on Gilles Deleuze's legal theory

Assim como o pensamento de Gilles Deleuze constitui uma filosofia de múltiplas entradas, suas possíveis leituras no campo da filosofia do direito são heterogêneas. O objeto deste texto é apresentar uma revisão da literatura insurgente na filosofia do direito anglófona e francófona, como ramificação específica dos Critical Legal Studies, recenseando criticamente os textos de Mussawir, Colebrook, Lefebvre, Patton e Sutter. Isso resulta em um panorama teórico da recepção da obra de Deleuze no campo jurídico, o que permitiu isolar uma lacuna interpretativa que sugere uma direção de pesquisa futura.

La “contradicción fundamental” en el movimiento critical legal studies

Como heredero del realismo jurídico estadounidense de principios del siglo XX, el movimiento Critical Legal Studies –en adelante CLSenarbola la bandera de la indeterminación del Derecho. Sin embargo, va más allá de la tesis realista y sostiene que tal no obedece a un mero problema lingüístico o formal sino a una verdadera manifestación de una “contradicción” o una serie de contradicciones sustantivas que subyacen al liberalismo, entendido como tradición ideológica, económica y política sobre la que se ha construido el modo de vida estadounidense.
 El objeto de este trabajo es describir en qué consiste esta “contradicción”  desde la perspectiva de los miembros de CLS, así como de los autores que, tanto en Europa como en América Latina, la han analizado –si así ha sido- . Para lograrlo será menester previamente: i) trazar un esquema general que permita comprender, a grandes rasgos, lo que CLS es y defende; ii) abordar los trabajos “paradigmáticos” al interior del movimiento CLS sobre la contradicción, particularmente los producidos por Duncan Kennedy; iii) revisar si en la literatura europea y latinoamericana esta idea ha tenido repercusión y, de ser así, cómo se ha efectuado su análisis.

Psychoanalyzing International Law(yers)

This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi'soeuvre.It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.

Investigating Race and Racism through African American Art and Artists

Inspired by Victor Lowenfeld’s teaching at The Hampton Institute (1939-1945) in Virginia, this study will explore why and how I address issues of race and racism in my classrooms at Francis Marion University in South Carolina, in which I regularly have more than 50% African American students. Methodologically, this study is grounded in critical race theory (CRT) that grew out of the critical legal studies movement in the 1970s and made its way into the field of education in the mid 1990s (Kraehe & Acuff, 2013). I believe that racially and culturally responsive teaching plays a critical role in helping students come to understand their ethnic self-esteem, cultural diversity, and social inclusion. Therefore, we as educators broadly need to re-evaluate our content and teaching goals in terms of the cultural, ethnic, racial, and social diversity of our students. Then, we will be able to renew and expand the role of art education in a democratic society.

Prawa a ideologia. Prawa jednostki z perspektywy krytycznej myśli prawniczej i społecznej (wybrane zagadnienia)

Problematyka praw jednostki jest ewidentnie fundamentalnym zestawem zagadnień dla nowoczesnej myśli społecznej i prawniczej. Tryumf tej problematyki można chyba nawet uznać za jeden z wyznaczników filozoficznej moderny. Mainstreamowe podejście do praw jednostki jest jednoznacznie optymistyczne i afirmatywne. Oto ludzkość, realizując Kantowski postulat sapere aude, odkryła/stworzyła i twórczo rozwija najlepszy w dziejach zestaw normatywnych wyznaczników funkcjonowania jednostek i grup. Autor przyjmuje całkowicie odmienną perspektywę. Celem tekstu jest generalizująca interpretacja wątków poświęconych prawom jednostki w krytycznej myśli prawniczej i społecznej. Tę ostatnią Autor rozumie jako zespół emancypacyjnych dyskursów, którego prawniczą lokalną odmianę stanowi ruch krytycznych studiów nad prawem, nie tylko w wydaniu amerykańskim, lecz także europejskim (rozmaite teorie gender i queer, teorie postkolonialne, socjologia krytyczna, teorie komunikacyjne, teorie posthumanistyczne). Bezpośrednia intertekstualna genealogia wielu reguł przyjmowanych przez te dyskursy sięga do tzw. French theory, czyli myśli francuskich poststrukturalistów, a zwłaszcza M. Foucaulta, oraz do programów teorii krytycznej Szkoły Frankfurckiej.

CLS and Marxism: A History of an Affair

This essay explores the relationship between the Critical Legal Studies movement and the Marxist tradition. What role did Marxism play in the formation of CLS's ideological and theoretical horizons? What part was it assigned in the movement's symbolic economy of discursive projects and practices? What kinds of critical challenges did CLS scholars mount against the Marxist legal-theoretic tradition and what sorts of broader lessons can the Marxist tradition extract today from those criticisms? The essay starts by summarising the standard account of the relationship between CLS and Marxism that has historically developed within the CLS's own internal discourse. It problematises a number of basic assumptions underlying this account before turning its attention to the examination of CLS's (potential) contribution to the development of a new wave of the Marxist legal-theoretic enterprise.

The Teaching of Church Law: An Ecumenical Exploration Worldwide

Religion law – the law of the state on religion – has been taught for generations in the law schools of continental Europe, though its introduction in those of the United Kingdom is relatively recent. By way of contrast, within the Anglican Communion there is very little teaching about Anglican canon law. The Church of England does not itself formally train clergy or legal officers in the canon and ecclesiastical laws that they administer. There is no requirement that these be studied for clerical formation in theological colleges or in continuing ministerial education. The same applies to Anglicanism globally – though there are some notable exceptions in a small number of provinces. This is in stark contrast to other ecclesiastical traditions: the Catholic, Orthodox, Lutheran, Methodist, Reformed, Presbyterian, Baptist and United churches all provide training for ministry candidates in their own systems of church law, polity or order. However, no study to date has compared the approaches of these traditions to the teaching of church law today. This article seeks to stimulate an ecumenical debate as to the provision, purposes, practices and principles of the teaching of church law across the ecclesiastical traditions of global Christianity. It does so by presenting examples of courses offered (institutions, purposes, subjects, methods and levels), the educative role of church law itself, requirements under church law for church officers to study the subject, and parallels from the secular world in terms of debate in the academy and practice on the nature of legal education, particularly the role played in it by the Critical Legal Studies movement.1

Dyskurs w obrębie prawa własności intelektualnej. Spojrzenie filozoficzno-prawne

Present day sees the ongoing heated debate on the shape of intellectual property rights (IPRs). The paper aims to explore the background of ongoing conflict between right holders and the groups that challenge the regulations pertaining to the intellectual property. In pursue of that aim, firstly, the economical justification, which is the most prevailing justification of IPRs, is presented; it is then contrasted with the number of arguments put forth by the opponents, including those based on the thought of critical legal studies (CLS) movement. Finally, based on historical and philosophical account it is argued that the discourses witnessed in present day are merely repetitions of those that occured in the past. The socio-economic changes simply makes old arguments resurface, so that a new fair balance between rights and interests of all stakeholders could be attained.

Nietzschean Critique and Philosophical Hermeneutics

This article will appear as part of a Symposium on and Legal Theory to be published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory. Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At the other end of the spectrum, Nietzsche's perspectival hermeneutics is seemingly nothing but thoroughgoing critique, to the point of collapsing into irrationalism under certain postmodern readings. This article develops a critical hermeneutics by demonstrating that philosophical hermeneutics can accommodate Nietzschean critique. I set the stage for the paper by recounting Allan Hutchinson's Nietzschean-inspired claim that radical critique in the tradition of the critical legal studies movement provides a necessary antidote to Gadamer's hermeneutical conventionalism, and then I provide an overview of Nietzsche's hermeneutical philosophy in terms of his naturalism and perspectivism. In the heart of the article I draw connections between Nietzsche and Gadamer by comparing perspectivism and fusion of horizons, their treatment of rhetoric and aesthetics, and their investigation of the critical power of tradition. I then develop the connections between these two thinkers through a close and critical reading of Gianni Vattimo's weak thought, and conclude the article with a consideration of Supreme Court jurisprudence on the legal status of gays and lesbians in contemporary society. Arguing that the Supreme Court opinions fail on hermeneutical grounds, I suggest that Nietzschean critique helps to supplement our understanding of legal practice and also provides helpful insights to legal theorists.

IPS FORUM CONTRIBUTION (ISSUE 3, VOL. 4): Old Mistakes: Bourdieu, Derrida, and the “Force of Law”11

In proposing this symposium, Oliver Kessler asked why international law, so long out of fashion in the field of International Relations (IR), has recently attracted interest among post-positivist scholars (as seen in the pages of this journal), and whether this renewed interest might contribute to a renaissance in theory and foster interdisciplinary dialogue.12 Or, in returning to international law, will “we simply reproduce old mistakes”? My response to the first question needs no elaboration: liberal re-enchantment with international law and pervasive rights talk set an agenda for scholars who are post-positivist but not quite post-liberal. Prospects for theory and dialogue, I suspect, depend on how one answers Kessler's last question. I believe we will indeed reproduce old mistakes if we rely on leading post-positivist figures as if they were the last word on what law is, and I believe there is a strong tendency to do just this—for convenience and in deference to their stature and authority. To make my point, I examine two texts, one by Pierre Bourdieu (1987) and one by Jacques Derrida (2002a), both employing the phrase “force of law” in their titles. While neither was a legal scholar, they wrote about law with sophistication and assurance. Bourdieu's command of legal theory is obvious to anyone reading “The Force of Law,” and Derrida wrote his “Force of Law” for members of the Critical Legal Studies movement. Even if some post-positivists may have immunized themselves to the authority of science, appeals to truth and common sense assertions about reality, they are all the more susceptible to appeals to authority for legitimacy and the quest for status by association with famous figures. For Bourdieu and Derrida, authority and force may indeed be synonyms. Both essays have quite a bit to say about the “chain of legitimation” (Bourdieu's …

Is it the Right Revolution? On Tushnet'sThe Rights Revolution in The Twentieth Century

This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book,The Rights Revolution in the Twentieth Century.This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.