Critical Legal Studies: An Critical Legal Studies: An IntroductionIntroduction

Prof. Angelina GodoyProf. Angelina Godoy

Autumn 2007Autumn 2007

Where we’ve been and where Where we’ve been and where we’re goingwe’re going

What is the relationship between law What is the relationship between law and justice?and justice? Liberalism - Liberalism - Marxism –Marxism –

Rest of class: many 20th (and 21st) Rest of class: many 20th (and 21st) century thinkers suggest century thinkers suggest law should law should be understood as a tool that can be be understood as a tool that can be used to liberate used to liberate oror oppress oppress

Where we’ve been and where Where we’ve been and where we’re goingwe’re going

Critical legal studiesCritical legal studies: law is not a : law is not a neutral set of rules or practices but an neutral set of rules or practices but an instrument of power relations ; question instrument of power relations ; question fundamental legitimacy of US legal fundamental legitimacy of US legal traditionstraditions

Critical feminist studiesCritical feminist studies: law is a tool that : law is a tool that maintains (or can undo) patriarchymaintains (or can undo) patriarchy

Critical race studiesCritical race studies: law is a tool that : law is a tool that maintains (or can undo) racial dominationmaintains (or can undo) racial domination

Where we’ve been and where Where we’ve been and where we’re goingwe’re going

Post-modernismPost-modernism: far from an : far from an arbiter of right or wrong, law is just arbiter of right or wrong, law is just another arena in which power another arena in which power struggles play out; what is “justice,” struggles play out; what is “justice,” anyway? How do we know it exists?anyway? How do we know it exists?

Law and SocietyLaw and Society

It is not possible to understand law It is not possible to understand law without understanding society’s without understanding society’s workings, realities of power and workings, realities of power and inequality, wealth and poverty, inequality, wealth and poverty, inclusion and exclusioninclusion and exclusion

Law is neither always oppressive nor Law is neither always oppressive nor always liberatory; the difference lies in always liberatory; the difference lies in the intersection with other structures the intersection with other structures and patterns of power in societyand patterns of power in society

Law and SocietyLaw and Society A lot of what these scholars are doing A lot of what these scholars are doing

is questioning assumptions about the is questioning assumptions about the way law works in our society.way law works in our society.

Why do you want to be a lawyer?Why do you want to be a lawyer?

What do these reasons tell us about What do these reasons tell us about the law? What are the stories we tell the law? What are the stories we tell ourselves about the law in this ourselves about the law in this country? country?

Critical Legal StudiesCritical Legal Studies movement in US law schools, beginning in movement in US law schools, beginning in

1970’s, criticized core justifications for US legal 1970’s, criticized core justifications for US legal system: system:

idea that general legal principles are embodied in idea that general legal principles are embodied in judicial opinions, that by legal analysis the correct judicial opinions, that by legal analysis the correct principle can be discovered and that judges can principle can be discovered and that judges can apply those principles dispassionately, free of apply those principles dispassionately, free of political bias and personal prejudicepolitical bias and personal prejudice

-in other words, the notion that there is -in other words, the notion that there is distinct distinct legal reasoninglegal reasoning, based in , based in legal precedentlegal precedent, that is , that is uniquely suited to arrive at just outcomesuniquely suited to arrive at just outcomes

These ideas very important for legitimating legal These ideas very important for legitimating legal authority:authority:

Legitimating legal authorityLegitimating legal authority George Bush: "The voters will know I'll put George Bush: "The voters will know I'll put

competent judges on the bench, people who will competent judges on the bench, people who will strictly interpret the Constitution and will not use strictly interpret the Constitution and will not use the bench to write social policy. And that's going the bench to write social policy. And that's going to be a big difference between my opponent and to be a big difference between my opponent and me. I believe that -- I believe that the judges me. I believe that -- I believe that the judges ought not to take the place of the legislative ought not to take the place of the legislative branch of government, that they're appointed for branch of government, that they're appointed for life and that they ought to look at the Constitution life and that they ought to look at the Constitution as sacred. They shouldn't misuse their bench. I as sacred. They shouldn't misuse their bench. I don't believe in liberal, activist judges. I believe in don't believe in liberal, activist judges. I believe in -- I believe in -- I believe in strict constructionistsstrict constructionists. And those . And those are the kind of judges I will appoint." [1st are the kind of judges I will appoint." [1st Presidential Debate, October 3, 2000; transcript Presidential Debate, October 3, 2000; transcript CNN]CNN]

““Strict construction”Strict construction” Idea is that one should interpret laws in terms of Idea is that one should interpret laws in terms of

what the Constitution says; any changes to laws what the Constitution says; any changes to laws should be drafted by Congress (no “legislating should be drafted by Congress (no “legislating from the bench”); judges must base opinion in from the bench”); judges must base opinion in legal precedent, not personal opinions or political legal precedent, not personal opinions or political inclinationsinclinations

Justice Scalia calls himself an “originalist” : Justice Scalia calls himself an “originalist” : Constitution is not a "living" document, but Constitution is not a "living" document, but should be interpreted on what the Founding should be interpreted on what the Founding Fathers meant at the time they drafted the Fathers meant at the time they drafted the ConstitutionConstitution

““Strict construction”Strict construction” Critical legal scholars: “Critical legal scholars: “Is it better to Is it better to

legislate from the bench or from the legislate from the bench or from the gravegrave?”?”

Critical legal studies scholars dispute Critical legal studies scholars dispute claims to legal legitimacy based in legal claims to legal legitimacy based in legal reasoning devoid of politics; this is a claim reasoning devoid of politics; this is a claim to neutrality and objectivity that does not to neutrality and objectivity that does not hold up in practice. hold up in practice.

Law is politics!Law is politics!

David Kairys, Introduction to David Kairys, Introduction to The The Politics of Law: A Progressive Politics of Law: A Progressive

CritiqueCritique Criticizes notion of “government of laws, not Criticizes notion of “government of laws, not

people”people”

““Law is, in this conception, separate from – Law is, in this conception, separate from – and ‘above’ – politics, economics, culture, and and ‘above’ – politics, economics, culture, and the values or preferences of any person. In the values or preferences of any person. In this separation resides the law’s ability to be this separation resides the law’s ability to be objective, principled, and fair.” (p. 1)objective, principled, and fair.” (p. 1)

This very concept embeds suspicion of “the This very concept embeds suspicion of “the people” by suggesting that popular people” by suggesting that popular government cannot be fair or reasonable; this government cannot be fair or reasonable; this “reason” must come from some outside “reason” must come from some outside source – the lawsource – the law

David Kairys, Introduction to David Kairys, Introduction to The The Politics of Law: A Progressive Politics of Law: A Progressive

CritiqueCritique How is the law separated from politics?How is the law separated from politics?

-subservient to Constitution, statutes, and precedent-subservient to Constitution, statutes, and precedent -quasi-scientific nature of legal analysis-quasi-scientific nature of legal analysis -technical expertise of legal practitioners-technical expertise of legal practitioners -decisionmaking process itself assumed sound, such that -decisionmaking process itself assumed sound, such that

any reasonable judge would arrive at same conclusion any reasonable judge would arrive at same conclusion by applying law to factsby applying law to facts

In fact, we know that this doesn’t always happen, In fact, we know that this doesn’t always happen, but the fiction still matters; it is the way we talk but the fiction still matters; it is the way we talk about law in this countryabout law in this country

Debate about judicial decisions thus focuses on Debate about judicial decisions thus focuses on whether courts have deviated from the idealized whether courts have deviated from the idealized decision-making process rather than on the decision-making process rather than on the substance of the decisionssubstance of the decisions

Kairys: this idealized process simply doesn’t exist. Kairys: this idealized process simply doesn’t exist. It’s a myth! It’s a myth!

David KairysDavid Kairys

Legal decisionmaking is Legal decisionmaking is indeterminate indeterminate (precedent itself is contradictory and there are (precedent itself is contradictory and there are multiple interpretations possible; there is no multiple interpretations possible; there is no standardized outcome that will yield a “correct” standardized outcome that will yield a “correct” decision every time)decision every time)

““The law usually embraces and legitimizes many The law usually embraces and legitimizes many or all of the conflicting values and interests or all of the conflicting values and interests involved in controversial issues…without involved in controversial issues…without providing any legally required hierarchy of values providing any legally required hierarchy of values or arguments or any required method for or arguments or any required method for determining which is most important in a determining which is most important in a particular context. Judges then make choices, and particular context. Judges then make choices, and those choices are those choices are most fundamentally value most fundamentally value basedbased, or political.” (p. 4), or political.” (p. 4)

Ex: right to privacy vs. right to life in abortion Ex: right to privacy vs. right to life in abortion debatesdebates

David KairysDavid Kairys But if law isn’t neutral and scientific, why do But if law isn’t neutral and scientific, why do

lawyers get to tell us what to do? Who elected lawyers get to tell us what to do? Who elected them, anyway? them, anyway?

““If law is not determinate or neutral or a If law is not determinate or neutral or a function of reason and logic rather than values function of reason and logic rather than values and politics, government by law reduces to and politics, government by law reduces to government by lawyers, and there is little government by lawyers, and there is little justification for the broad-scale justification for the broad-scale displacement displacement of democracyof democracy.” (5-6).” (5-6)

Indeed, this is the way we discuss Indeed, this is the way we discuss appointments to our highest court – not on the appointments to our highest court – not on the substance of decisions, but on the adherence substance of decisions, but on the adherence to this process. to this process. judicial restraintjudicial restraint vs. vs. judicial activismjudicial activism

David KairysDavid Kairys Judicial restraint vs. judicial activism is Judicial restraint vs. judicial activism is

meaninglessmeaningless – it all depends on what issue you’re – it all depends on what issue you’re talking about, and what your desired outcome is.talking about, and what your desired outcome is.

““Both conservatives and liberals see themselves Both conservatives and liberals see themselves as protecting freedom and see each other as as protecting freedom and see each other as favoring impermissible government intrusion. favoring impermissible government intrusion. Neither conservatives nor liberals seem seriously Neither conservatives nor liberals seem seriously bothered by judicial interference and creativity or bothered by judicial interference and creativity or abandonment of established rules and precedents abandonment of established rules and precedents in furtherance of their higher goals.”in furtherance of their higher goals.”

David KairysDavid Kairys Activism vs. restraint (a.k.a. “loose Activism vs. restraint (a.k.a. “loose

construction” vs. “strict construction” ) construction” vs. “strict construction” ) debate obscures real issues:debate obscures real issues:

In a democracy, shouldn’t we discuss the In a democracy, shouldn’t we discuss the outcomes we want? outcomes we want?

Isn’t entrusting decisions with such vast Isn’t entrusting decisions with such vast implications to unelected judges implications to unelected judges fundamentally antidemocratic?fundamentally antidemocratic?

David KairysDavid Kairys Reverence for the Constitution is misplaced:Reverence for the Constitution is misplaced:

its framers wanted to its framers wanted to limit limit democracy (at least in democracy (at least in the way we understand the term today), protect the the way we understand the term today), protect the power of a minoritypower of a minority

Historically, it’s Historically, it’s Congress, not the CourtsCongress, not the Courts, who have , who have enacted reforms to make our nation more inclusive:enacted reforms to make our nation more inclusive:

““This is a history of progressive inclusion, equality, This is a history of progressive inclusion, equality, democracy, and protection of individual freedom, democracy, and protection of individual freedom, for which we can rightly be proud of our people – for which we can rightly be proud of our people – rather than any legacy from the founders, rather than any legacy from the founders, conservative principles or values, language in the conservative principles or values, language in the Constitution, or legal reasoning.” (9)Constitution, or legal reasoning.” (9)

Even under the Warren Court, power for Even under the Warren Court, power for progressive change came from progressive change came from popular popular movementsmovements, not enlightened decisionmaking from , not enlightened decisionmaking from on high on high

David KairysDavid Kairys The misplaced faith in legal reasoning that so The misplaced faith in legal reasoning that so

characterizes the USA has led to a crisis of characterizes the USA has led to a crisis of democracy. democracy. How?How?

By By distracting from the real issuesdistracting from the real issues: we discuss : we discuss judicial restraint rather than what “the right to judicial restraint rather than what “the right to privacy” or “choice” means. privacy” or “choice” means.

““The law serves, as the concept of government The law serves, as the concept of government of law, not people, suggests, to of law, not people, suggests, to depoliticizedepoliticize – – removing crucial issues from the public agenda – removing crucial issues from the public agenda – and to and to cast the structure and distribution of cast the structure and distribution of things as they are as somehow achieved without things as they are as somehow achieved without the need for any human agencythe need for any human agency.’ (12).’ (12)

David KairysDavid Kairys Not only does it distract us from the real issues, Not only does it distract us from the real issues,

but in our country, we ascribe to it such great but in our country, we ascribe to it such great decisionmaking authority that it regulates decisionmaking authority that it regulates distribution of resources, investment, labor…distribution of resources, investment, labor…

““This legitimizes private – mainly corporate—This legitimizes private – mainly corporate—dominance, masks the lack of real participation dominance, masks the lack of real participation or democracy, and personalizes the or democracy, and personalizes the powerlessness it breeds.” (12)powerlessness it breeds.” (12)

““If the goal of the framers of the Constitution If the goal of the framers of the Constitution was, as they sometimes candidly said, to was, as they sometimes candidly said, to empower a national elite and to protect its reign empower a national elite and to protect its reign from popular movements, they have succeeded.”from popular movements, they have succeeded.” (13)(13)

David KairysDavid Kairys

What is the answer, then? What is the answer, then? Repudiate this mythical model of Repudiate this mythical model of

decisionmakingdecisionmaking Repudiate the “American conception of Repudiate the “American conception of

rights as absolute, individual, and without rights as absolute, individual, and without significant effects on society” (13)significant effects on society” (13)

Repudiate the cyclic, distracting debates Repudiate the cyclic, distracting debates about judicial restraintabout judicial restraint

Redeem the law!Redeem the law!

David KairysDavid Kairys

““The law, though indeterminate, political, The law, though indeterminate, political, and most often conservative, ant though and most often conservative, ant though it functions to legitimate existing social it functions to legitimate existing social and power relations, is a major terrain for and power relations, is a major terrain for political struggle that has, on occasion, political struggle that has, on occasion, yielded or encoded great gains and yielded or encoded great gains and simply cannot be ignored by any serious simply cannot be ignored by any serious progressive trend or movement.” (16)progressive trend or movement.” (16)

What is the relationship of What is the relationship of the law to justice in critical the law to justice in critical

legal studies ?legal studies ? The law depoliticizes the status quo, makes The law depoliticizes the status quo, makes

it appear fair or natural when it is notit appear fair or natural when it is not Discourages citizens’ participation in Discourages citizens’ participation in

discussions over key policiesdiscussions over key policies The law, in this senseThe law, in this sense, limits, limits democracy democracy

and social justice:and social justice:

”This legitimizes private – mainly corporate ”This legitimizes private – mainly corporate – dominance, masks the lack of real – dominance, masks the lack of real participation or democracy, and participation or democracy, and personalizes the powerlessness it breeds.” personalizes the powerlessness it breeds.” (12)(12)