Critical legal studies

Critical legal studies is a sometimes Marxist and (more recently) sometimes postmodernist/deconstructionist approach to studying the law that focuses on the ways in which the law works to reinforce social divides. The approach also has an activist angle as it aims to counteract the law's role in reproducing social inequality.

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“”Racism and Enlightenment are the same thing.

—Critical race theorist Richard Delgado[1]

“”Facially objective and disinterested standards in fact serve the interests of the white majority.

—Critical race theorist Jerome Culp[1]

Theory

“”If feminism is a critique of the objective standpoint as male, then we also disavow standard scientific norms as the adequacy criteria for our theory, because the objective standpoint we criticize is the posture of science. In other words, our critique of the objective standpoint as male is a critique of science as a specifically male approach to knowledge. With it, we reject male criteria for verification.

—Catharine MacKinnon[2]

Critical legal studies builds on the "critical theory" championed by the cultural Marxist Frankfurt School of social critics. Critical theory has as its aim the study of culture in order to identify ways in which a culture creates and reproduces social barriers (typically along lines of race, class, sexuality or gender). This is held to be a crucial step in bringing about the dismantling of social barriers in order to create a more equitable society. Critical legal studies applies this same method of study to the law rather than culture.

It holds to the idea that the theory and practice of law and jurisprudence is just as political as partisan politics, and that the ruling of a judge is just as politically charged as the vote of a legislator. (See judicial activism for more examples.) Furthermore, the theory holds, this political bias is evidence that — even though the "little guy" might occasionally use the law as a means by which to bring about social justice (e.g. Brown v. Board of Education, Loving v. Virginia, Liebeck v. McDonald's Restaurants, Lawrence v. Texas) — the law is completely stacked against the everyman and is specially designed to allow the rich and powerful to ignore average people's grievances.

The fight against liberté, égalité, fraternité

“”Critical race theorists attack the very foundations of the [classical] liberal legal order, including equality theory, legal reasoning, Enlightenment rationalism and neutral principles of constitutional law. These liberal values, they allege, have no enduring basis in principle, but are mere social constructs calculated to legitimate white supremacy. The rule of law, according to critical race theorists, is a false promise of principled government, and they have lost patience with false promises.

—Jeffrey J. Pyle, Boston College Law Review[3]

The movement in general tends to explicitly reject Enlightenment values and rationalism as little more than a ploy by white men to subjugate minorities. It seems to follow a very simple line of reasoning:

1. Our courts are founded on Enlightenment values.
2. There was racism/sexism/oppression and even explicitly racist/sexist/oppressive laws during this era.
3. Therefore, Enlightenment values are inherently oppressive.

Anti-semitism

The movement has been accused of having a more-than-slight anti-Semitic streak. This is largely because many of its most radical adherents reject the notion of actual merit playing virtually any part in someone obtaining a job in the law profession and therefore suggesting that the reason Jews make up such a large part of said law industry is via their scheming.

Derrick Bell, one of the founders of both Critical race studies and CLS, even explicily stated that Jews only pretend to care about black people as part of a plot so that white people take out their anger on black people instead of Jews.[4]

CLS's biggest splashes

“”What is most arresting about critical race theory is that...it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal—designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.

—Judge Richard Posner, United States Seventh Circuit Court of Appeals[5]

Critical legal studies reached the peak of its popularity in the 1980s. Its influence was largely confined to the ivory tower; however, mostly due to the efforts of CLS practitioner Catharine MacKinnon, a radical feminist law professor and friend of Andrea Dworkin, many of its ideas found their way into the real world and currently have some influence in the area of sexual harassment law.

Antipornography Civil Rights Ordinance

MacKinnon legally formulated the Antipornography Civil Rights Ordinance thought up by Dworkin. This ordinance was formed on the premise that pornography (defined in an unorthodox fashion as "media in which women are subordinated in a sexually explicit fashion, by pictures and/or words") is a manifestation of men's patriarchal power over women, and that the law left women powerless in that they were unable to sue anyone who made pornography for gender discrimination. The ordinance aimed to give this power to women at any cost.

The ordinance, which threatened to make publishers liable for publishing anything from Hustler to the Iliad, apparently[6] violated the First Amendment of the U.S. Constitution, on the grounds of both ideological censorship and of failing to apply the Miller test for obscenity. MacKinnon tried to dodge this minor detail in court by claiming that the First Amendment needed to be "reinterpreted" to accommodate the ordinance, mainly by scrapping the Miller test. After much protest from liberals (the prospect of suing the socks off Larry Flynt had right-wingers wetting their pants too much to smart off about political correctness in this instance), she was told, from the federal bench, exactly where she could shove her legal reasoning.

In other words, her efforts failed while following due process.

Hostile work environment

MacKinnon also wrote a widely cited legal book, Sexual Harassment of Working Women, which was the impetus behind the (more successful) formulation of "hostile environment sexual harassment," or the idea that if a woman person feels uncomfortable at work, and if she can find a way to blame this discomfort on something remotely to do with sex, and if she can prove that this discomfort is "reasonable", the company which employs her is guilty and must pay her (and her lawyers) large amounts of money. This was, again, based on the premise that the law left women powerless unless they were empowered by the right to bring such lawsuits (which, in a sense, it did, given that existing "quid pro quo" harassment suits only granted women protection from the actions and policies of their superiors and did not give them an easy legal avenue to fight discrimination on the part of their peers and coworkers).

Note that no law was ever passed forbidding such "harassment;" Catharine MacKinnon and related lawyers essentially wrote the policy on their own, using Title VII of the Civil Rights Act as justification, and the Supreme Court then brought the proscription into being.

In other words, her efforts succeeded while following due process. Do note, however, that "hostile work environment" harassment may be brought by any person in a protected class under the Civil Rights Act (i.e. sex, race, religion/non-religion, ethnicity, or national origin), and is notoriously hard to prove in practice.

Indeterminacy debate

The biggest splash of critical legal studies, however, was not in law itself, but in the world of law schools, where a debate was made over the "determinacy" of law,[7] the practitioners of critical legal studies applying the Marxist view of capitalism to the law by holding that it was full of "contradictions," hence could be brought to say anything about anything. Both conservatives and liberals respectfully disagreed, and apparently won.

See also

• Catharine MacKinnon
• The Enlightenment — defined as a white power movement by the critical race theorists (see opening quote).
• Frankfurt School

References

1. Beyond All Reason The Radical Assault on Truth in American Law
2. Feminism Unmodified: Discourses on Life and Law, page 54.
3. Pyle, Jeffrey J. (1999). "Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism". Boston College Law Review. 40 (3): 787–827. ISSN 0161-6587.
4. Bending the Law
5. Posner, Richard A. (October 13, 1997). "The Skin Trade". The New Republic. Vol. 217 no. 15. pp. 40–43. ISSN 0028-6583.
6. See the Wikipedia article on prima facie evidence.
7. See the Wikipedia article on the indeterminacy debate in legal theory.