On Critical Legal Studies and the Limits of Critique

“While the task of critique is always important, it is not sufficient if the expectation is simply that deconstructing regimes of marginalization will immanently lead to the emergence of some vaguely conceived egalitarian society.”

“In a world of democracies, in a world where the great projects that have set humanity on fire are the projects of the emancipation of individuals from entrenched social division and hierarchy; in such a world individuals must never be puppets or prisoners of the societies or cultures into which they have been born.” Roberto Unger

With the recent controversies over Supreme Court appointments, it is a fitting time to analyze the strengths and limitations of the critical legal studies movement, which is often held up as a boogeyman of solid legal analysis by a number of critics on the right.

Many conservatives argue that critical legal thinking has resulted in collapsing standards for the legal profession. Victor Hanson of The National Review wrote that critical legal theory will collapse support for law and order. In Explaining Postmodernism, Stephen Hicks lumps critical legal theory with other postmodern movements dedicated to undermining reason, individualism, and support for liberal values. Others claim that critical legal thinking is destroying the very idea that there can be “truth” in legal analysis. These fears are often invoked to justify the appointment of conservative justices who will interpret the original meaning of the law.

These expressions of anxiety belie the fact that critical legal thinking is more often parodied and ridiculed than engaged with seriously. This piece is meant to buck this trend by providing a relatively short introduction to the work of major critical legal theorists and their arguments. As we shall see, the arguments of the critical legal theorists are often quite radical. They claim that the language of law, far from being clear and easily interpreted, is often highly ambiguous.  Legal officials, many of whom come from powerful backgrounds, therefore, cannot merely interpret the law in a neutral manner. Instead, they interpret it to advance their group interests and marginalize the less powerful. After trying to present their arguments as carefully as possible, I will conclude by pointing out some of the problems I have with critical legal thinking. I will also suggest some ways these might be ameliorated through the adoption of a more ambitious and constructive approach to morality and the law.