Critical Legal Studies

• Author: Mark Tushnet
• Pages: 724-726

Page 724

"Critical legal studies" refers to a development in American jurisprudence in the late 1970s and 1980s. Its originators were self-consciously affiliated with leftist political movements. Their understanding of the law, including constitutional law, was influenced by the experience of the movements for CIVIL RIGHTS and against the VIETNAM WAR, in which, as they saw it, appeals to legality?in the form of saying that RACIAL DISCRIMINATION was unconstitutional and that the war was being conducted illegally?played an important but complex role. Their intellectual position was shaped in large measure by an understanding of American LEGAL REALISM that took realism's implications to be more radical than many of its first proponents may have believed. The radical reading of legal realism was supported, in critical legal studies, by an understanding of what were perceived as the intellectual difficulties of the liberal tradition, which produced the tensions that the realists attempted unsuccessfully to resolve.

The most direct legacy of legal realism to critical legal studies was the idea of indeterminacy. Critical legal studies understood the realist message to be that law, again including constitutional law, was shot through with "contradictions," in the sense that, at least in any socially significant case, legal arguments that were professionally defensible were available for a rather wide range of outcomes and rules, some of which might differ radically from others. According to critical legal studies, this indeterminacy resulted from the fact that the liberal tradition attempted to, but could not, suppress what Duncan Kennedy, an early proponent of critical legal studies, called "the fundamental contradiction" of social life?that people are both fearful of, and dependent upon, other people. In the critical legal studies analysis, the central themes of the liberal tradition, expressing suspicion of government efforts to promote "the good" in societies where there were fundamental differences over what constitutes the good, drew primarily on the fear of other people. Yet, according to critical legal studies, because social life necessarily places people in relations of dependence on each other, law cannot, and does not, simply express the fear of others. Rather, law attempts to express both aspects of the fundamental contradiction, which is what generates the possibility of acceptable legal arguments leading to radically different results.

To deal with the point that the indeterminacy thesis is in tension with the fact that lawyers can predict with some assurance how judges will resolve many contentious legal issues, even if the issues could in some sense be regarded as open to decision either way, critical legal studies relies on claims about law as ideology. In one version, influenced by Marxist social thought, indeterminacy is resolved in fact by the political predispositions of the judges, and predictability occurs because the judges, and lawyers too, are drawn from a relatively narrow range of social classes, whose...