Critical Legal Studies

1. George P. Kyprianides
Barrister-At-Law[Inner Temple]
LLB, LLM with Distinction
Advocate-Legal Consultant

3. Professor Duncan Kennedy is amongst its adherents.
Duncan Kennedy speaks at Harvard Law School during a panel on 2008-2009 Gaza War.

4. •CLS deny that that law is a system. “Doctrine "never provides a determinate answer
to questions, nor can it cover all conceivable situations. This is described as the
principle of indeterminacy.
•It rejects the view that there is an autonomous and neutral mode of legal reasoning.
This is described as the principle of antiformalism
•It disputes the idea that ‘doctrine’ encapsulates a single, coherent view of human
relations; instead CLS argue that ‘doctrine’ represents several different, often
competing views, none of which is sufficiently coherent or persuasive to be called
dominant. This is described as the principle of contradiction.
•It doubts that even where there is consensus, there is reason to regard the law as
decisive factor in social behavior. This is described as the principle of marginality.
Three main influences of CLS movement.
1. American Legal Realist movement is the progenitor of the CLS movement.
Although, Duxbury says
“ CLS –for all that it may have progressed little further than did legal realism
in grappling with law as a political phenomenon-is not simply realism
repeated.”
Neil Duxbury, Patterns of American Jurisprudence (Oxford: Hart Publishing, 2000), at pg. 425.

5.  In deciding cases, judges react to the underlying facts
of the case, whether or not they are legally significant.
 The legal rules and reasons generally have little or no
effect, especially in appellate decisions.
 Many of the realists advanced ‘core claim’ is the hope
of reformulating rules to tender them more fact-
specific.
Brian Leiter, “Rethinking of Legal Realism: Toward a Naturalized Jurisprudence”.
Oliver Wendell Holmes Jr. (Supreme Court Justice):
“The Common Law is not a brooding omnipresence in the
sky but the article voice of some sovereign or quasi
sovereign that can be identified.” Southern Pacific Co. v
Jensen 244 US 205 (1917) at 222.

6. “ I define postmodern as incredulity toward meta-narratives.”
Jean- Francois Lyotard, The Postmodern Condition: A Report on
Knowledge.
Four vital characteristics:
 Anti-formalist:
“Wage a War on totality”
Lytard.
 Socially conditioned nature of all thinking: nature of
knowledge:
Subjectivity.

8.  If the meaning of words is so unstable, how can we
communicate at all?
 Derrida: An illusion of stable meaning is created by binary
oppositions.
 Derrida emphasizes the implicit hierarchy in the oppositions one term
carrying positive connotations and the other negative.
 “Deconstruction” :
“Uncovers the politics which underpins philosophy and by concentrating
on language reveals how this politics is secreted away.”
Ian Ward.

10.  “Base”
 “Superstructure”
 For Marxist law has an extremely vital ideological
function where the term “ideological”: obscure and
maintain the exploitative relationships on which the
society works.
“Men and their circumstances appear upside down”.
How does Marxism influence the CLS movement?

12.  Judges make arbitrary decisions, this is why we have
some decisions being overruled or dissenting
judgements.
 We live in a two party system with each party having
opposing points of view; traditionalist free marketeers
within the Conservative Party and reforming socialists
within the Labour Party mean an inevitable
contradiction in different laws - freedom of contract vs
minimum wage
 Jurisprudential theories contradict each other even
when they are in agreement Dworkin/Hart

13.  Is a contradiction within itself
 Laws exist for the benefit of the people
 Yet the law must fetter and restrain itself for fear of
becoming tyrannical
 This means however that it cannot benefit the people
as much as it otherwise might
 As a result the law must benefit the people but must to
do so to its full ability

14.  Phrase coined by Kennedy
 An individual should not be impeded upon by other
people or society as a whole
 In order to protect the individual from other
individuals the law must impede upon others and
fetter their actions
 The law is however little more than the
implementation of a collective point of view upon an
individual and thus the individual is being coerced
into actions by society

15.  CLS philosophers have identified 3 main
contradictions:
1. Formal “Rules” are used alongside the
contradictorily informal “Standards”
2. The importance of individual understanding and
the subjectivity of truth against the idea of an
objective understanding throughout society
3. The idea of individual actions and decisions
against the issue of determinism

16.  The law relies on Formal Realizability in many areas,
notably statute, in which decision makers have clear
boundaries and instructions to which they must react
in a certain way
 On top of this the law has certain standards that are
not strict but may be as loose as simple guidelines, for
example the maxims of equity

17. Rules
 Strict, must be followed
in set manner that may
not be diverged from
 Prevent arbitrary
decision making
 Certainty of verdict
 Allow “toeing the line” of
the law and allow
loopholes to be created
 Flexible, allow the
decision maker room to
find their ideal decision
 Allow an arbitrary
element within the law
 Lack of certainty
 Prevents “toeing the
line” but undermines the
Rule
Standards

18.  The subjective morals and understanding of the
individual are key to liberal ideology
 The law however imposes objective morals onto the
individual
 Laws are imposed as overriding of the person’s
individual morality
 This is contradictory within itself, however
 There is no such thing as “objective truth” and thus the
understanding of one group takes precedent over
another, which makes one group of greater importance
than the other contrary to liberal beliefs

19.  Intentionalism – people act of their own free will and
make decisions as to their own antonymous choices
 Determinism – people act according to the experiences
from the world around them their actions are therefore
neither blame or praiseworthy
 Criminal law is overwhelmingly intentionalist -
punishment of an individual for choosing to act in a
certain manner
 Private law also has a large degree of intentionalism –
freedom of contract, caveat emptor

20. Intentionalism
 Overwhelming basis of
reasoning behind the
law and a person’s
actions
 For something to be a
crime the actus reus
must be intended
 Recognised within the
law, but is implemented
only as an exception, for
example a plea of
insanity
 Strict liability, where
fault is not needed
Determinism

21. Intentionalism
 Criminal law considered
traditionally
intentionalist
 Apart from when it’s
not...
 For example the plea of
provocation where
someone has acted
because circumstances
were out of their control
 Negligence is considerered
traditionally determinist
 Apart from when it’s not...
 Though it may be
accidental that the result
happened, there are
certain levels of choice
negligence – eg I chose not
to check the ginger beer
bottle for snails
Determinism

22.  LeBarron v State – a man decides to stop raping a woman
because she says that she is pregnant. The court found that
he only stopped due to the extraneous circumstances and
thus found him guilty of rape – however, many other men
would not have stopped, thus it was his decision to not
rape her
 An individual’s Will is supposedly the embodiment of how
they wish to have their estate split upon death. However,
the court will often override clauses that it considers
inequitable – “I leave all my money to my local school, but
only for the benefit of those with blonde hair and blue
eyes” will be overridden because eugenics are considered
immoral and if the decision had been made today it would
(presumably) not include the caveat

23.  The law therefore operates on the grounds of
intentionalism, yet contradicts itself through allowing
determinisitic factors to be recognised in an ad hoc
manner
 This leads to contradictions in other areas, such as
certainty
 Creates arbitrary decisions in a system that is meant to
avoid uncertainty
 CLS claims that in a reformed system the two elements
would be recognised more overtly

24.  Contract Law
 Unger
 Competing values of individual freedom and surrounding
social obligations
 Mensch
 ‘The principle of free contract is incoherent on its own terms’
 Hobbes
 It is rational to accept limits on our freedom in order for
society to function efficiently

25.  Dworkin
 We should expect a legal system to be responsive to the
range of values held by society
 When judges decide hard cases, they choose the
interpretation of the law that best fits and justifies the
law’s current position
 Fuller
 The aim is to find the best possible conjoint pursuit of a
plurality of principles.

26.  CLS mistakes Complexity for Conflict
 Finnis
 Not two conflicting rules, but one complex rule
 Unger
 Flawed conclusion that:
 existence of exceptions to a rule = incoherency
 exception = counter-principle

27.  Complex society
 Complex rules required to regulate such a society
 The law reflects the contradiction inherent in our
existence
 The law is not contradictory in itself

28.  The law does indeed have contradictions, which are
vast and inherent within the law itself
 However, these contradictions are not as fatal to the
current legal system as the CLS movement would wish
 Deconstructionism, although a useful tool does not
comprehensively destroy the arguments in favour of
the law and may be countered