Critical Law theory | Features of Critical Legal theory | Feminist critical theory

Critical Law Theory

Critical law theory examines how critical thoughts repudiates what is taken to be the natural order of things, be it patriarchy (in case of feminist jurisprudence), be it conception of race (critical race theory), the free market (critical legal studies) and postmodernism. The myth of determinacy is a significant component of the assault of law. 

Far from being a determinate coherent body of rules and doctrines, the law is depicted as uncertain, ambiguous and unstable. And instead of expressing rationality, the law reproduces political and economical power. In the view of critical legal studies, social justice is a hollow promise.

Critical Law theory | Features of Critical Legal theory | Feminist critical theory

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Definition of Critical legal theory

"A school of thought advancing the idea that legal system perpetuates the status quo in terms of economics race and gender by using manipulability concepts and by creating imaginary world of social harmony regulated by law."

Key goals of Critical Law theory

  • To demonstrate the ambiguity and possible preferential outcomes of supposedly impartial and rigid legal doctrines.
  • To publicize historical, social, economic and psychological results of legal decisions
  • To demystify legal analysis and legal culture in order to impose transparency on legal processes so that they earn the general support of socially responsible citizens

Salient Features of Critical legal theory

  • Criticised the validity claim

Critical theory criticized the validity claims of the seperate disciplines and attented to create a new kind of social theory.

  • Theory of society

Critical theory insists that one need a theory of society grounded in a theory of capitalism to make sense of socio-historical processess and developments because the dynamics of capitalism plays such an important role in social life.

  • Totality

Frequently critical theorists use the term totality in a synchronic sense to refer to the structure of societies defined by the Marxist critique of political economy which provides the framework and context of inquiry and which constitutes many social facts.

  • Systematic

Critical theory is this systematic totalizing integrating and global.

  • Mediates

Critical theory Mediates between various domains of the reality, between parts and whole, between appearance and essence, and between theory and practice.

  • Role of philosophy

Philosophy's role in critical theory is to analyze the presuppositions of a critical social theory and to criticize the presuppositions and effects of competing theories.

Rejection or repudiation of critical legal theory: (An Argument) 

It is presented as continuous with CLS of the 1970s and 1980s, updated to confront the legal challenges of the current period. But it can also be read as an argument for why folks on the political left should repudiate CLS, an argument I will discuss. 

The role of critical theory, then and now, is to study and expose the ambivalent quality of law. 

“Critical theories ask how law legitimates power in both senses of the word: how it shapes, channels and restrains power and how it mystifies, disguises, and apologizes for it.” 

During the heyday of the first generation of CLS, the emphasis was on the ways in which law “mystifies, disguises, and apologizes.” Hence their self-described dedication to “trashing” law and rights. CLS emphasized legal indeterminacy to show the manipulability of law, and it revealed the permeability of legal concepts like the public/private distinction.   

CLS Mantra

The CLS mantra: “law is politics.” If this argument is correct, then the total delegitimation of liberal legalism, which CLS sought to do, threatens to emasculate the good that law has to offer by spreading cynicism about law. 

Law is essential for the reasons stated above—for the reasons elaborated on by Marxist historian E.P. Thompson (who Jack mentions at the close of his essay)—so any attack from the political left that aims to completely undermine the law is ultimately detrimental to the goals and causes the left hopes to advance. The choice of the left must be to stand up and defend the integrity of law. 

Social change with the critical legal studies: 

Social change can also be referred to as “Institutional reconstruction.” CLS theorists urged for radical changes in the law and in the construction of society. Many in the CLS movement want to overturn hierarchical structures of domination in modern society and many of them have focused on the law in achieving this goal. 

The law has played a key role in maintaining the hierarchy by impeding efforts at social change. CLS calls for an empowered democracy with a government and economy that are largely decentralized. In terms of the economy, the capital should be controlled by the government which would establish a rotating capital fund that would pass to the team of workers or technicians. 

Such innovations would require major changes in law particularly as regards an upstanding of rights.
  • Rights are in four categories. 
  1. Immunity rights, which protect the individuals from the state, organizations, and other individuals.  
  2. Destabilization rights, which makes it possible to dismantle institutions and practices that create social hierarchy and division. 
  3. Market rights, which constitute claims to social radicals and replace conventional property rights. 
  4. Solidarity rights, which are the legal entitlements of the communal rights. 
This philosophy is known as super liberalism. (by Unger). 
Despite these criticisms, CLS has greatly influenced the study and theory of law. After some early battles to gain acceptance in 1970’s and 1980s it earned an accepted position in law schools.  However, some legal scholars both inside and outside the CLS movement argue that their original radical impetus will fade and moderate. Others argue that the call for justice and equality will always require an untampered radicalism that will be fueled by CLS. Whatever the outcome, CLS has permanently changed the landscape of legal theory. 
 

Revolution in Different Perspectives: 

Now we are going to see the critical theory with different revolutions in different perspectives.

Conception of race in terms of critical legal studies:

CRT began in the mid-1970s when many intellectuals believed that the civil rights movement of the 1960s had ended and that in fact many of its gains were being turned back. As a result, they began to develop new theories and concepts that would allow them to understand the causes and implications of these new developments. 

Like CLS, CRT gathers disparate scholars and theorists under a common Heading. However, CRT is a less formal organized school of thought than CLS. Leading critical race theorists including DERRICK ALBERT BELL JR., ALAN D. FREEMAN and PATRICIA J. WILLIAMS. 

Critical Race Theory (CRT) and Critical legal Studies (CLS)

Critical race theorists share a number of themes. Like CLS, CRT finds major faults in liberalism and particular features of the liberal jurisprudence that bear on race including affirmative actions, neutrality and colour blindness. Many CRT writers, for example, dispute that the constitution is or ever can be blind. 

  • They also assert that the supposed breakthrough in the area of racial rights by the Supreme court serves only to validate an unjust political system by creating an illusion that racial inequalities are being ended when in fact they are not. 
  • CRT scholars generally seek a greater understanding of the social origins of race and racism and like CLS theorists they employ social theory and science in that cause. 
  • Some in the CRT movement make a case for cultural separatism and nationalism for people of colour, arguing that preserving the diversity and separateness of diff racial groups will benefit everyone. 
  • CRT also attempts to understand the cyclical nature of US race relationships characterized by periods of racial retrenchment and discord. 
  • CRT writers also make frequent use of historical and social theories regarding colonialism and slavery. 
  • Many CRT writers employ unconventional narrative methods sometimes called legal storytelling in their legal writing’s fiction, myth, parable, anecdote and autobiography. These approaches often demonstrate the way in which the majoritarian mindset impedes the cause of racial reforms. 

Feminist critical theory and the critical legal studies: 

Catharine MacKinnon has defined feminist Jurisprudence as 
"an examination of the relationship between law and society from the point of view of all women."
In essence then, Feminist Jurisprudence involves the application of feminist theory to the law.'  
  • Social history
The rebirth of the dormant feminist movement in the United states in the 1960 was in part a response to the male radical insistence on using male dominant hierarchical forms of political organizations to accomplish important revolutionary ends. 
                 While men ran the meeting and formulated the policy, women were relegated to nurturing and art and crafts. Women angered by this structure form women's consciousness raising groups. Simultaneously, less radical but politically visible form of feminism emerged in the writing and organizing of such liberal feminist as Betty Friedan and Gloria Steinem.  
  • Politics of Law 
 Many of the women subscribed to the early themes, principles and approaches of the CLS critiques of law and the legal education such as the basic critique of the inherent logic of the law the indeterminate and manipulability of doctrines, the role of the law in legitimating particular social relation, the illegitimate authorities created by the law and the legal institutions. In short “the politics of law”. 
  • Feminist Jurisprudence
As a self-conscious effort to pull feminism out of its marginal position, the organizers of the 1983 conference on CLS arranged for a segment of conference that would focus solely on feminism.  
Still and now, a new group of feminist theorist staking out of the field called feminist jurisprudence began speaking and writing about the critique of law and the legal institutions that sometimes overlap with the critical legal theory but sets its own ground.  
In 1985, the theorist concerning with the feminist jurisprudence joined with many other using regional recollective to plan and sponsor a feminist CLS conference. 
  •  Feminist Methodological Phases
Turning briefly to the methodology of Feminist Jurisprudence, I submit that there are three phases of analytical methodology that roughly correspond to the three variations on the gender difference theme delineated above. Like those variations, the methodological phases are not mutually exclusive, and indeed, are all concurrently operational. The third methodological phase corresponds to the "be-yond gender difference" variation of the gender difference theme in Feminist Jurisprudence. The methodology in this phase focuses on women using their experience to inform their legal analysis. The most popular formulation of the feminist method in this third phase was originally provided by MacKinnon.  
  • Feminist MacKinnon’s Marxist Analogy 
Following her Marxist analogy of "sex" to "labor," she claimed that the male exploitation and domination of the female sex has led to a "false-consciousness" on the part of women. 
According to MacKinnon, "consciousness-raising" is necessary for women to discover what is truly female. Other feminist legal scholars have interpreted conscious-ness-raising to mean a multi-disciplinary methodological framework in which the relaying of gender (female) experiences plays a large role. 

Indeed, in one version of this third phase methodology, the "Fem-Crits" argue that, unlike their male CLS counterparts, they write about domination and oppression from the perspective of personal experience.  

In the second phase of feminist legal methodology, because female difference is celebrated, the methodology calls for "identifying areas in which the law has particularly important implications for women [e.g., maternity, sex offenses and] ... mustering arguments justifying special treatment for women." Finally, in the first phase of feminist legal methodology, the substantive emphasis on sameness requires that a feminist legal scholar find laws in which men and women are treated differently (e.g., family law). Having pinpointed the differences in the law, the scholar inquires, as to whether or not the law could be made more gender neutral. 

Approaches of Feminist Jurisprudence: 

Some approaches to feminist jurisprudence are: 
  • The liberal equality model; 
  • The sexual difference model; 
  • The dominance model; 
  • The anti-essentialist model; 
  • The postmodern model. 

Each model provides a distinct view of the legal mechanisms that contribute to women's subordination, and each offers a distinct method for changing legal approaches to gender.  

  • Postmodernism and critical law theory

Postmodernism focuses on the question of differences. In the work of Levinas and Derrida the question of difference becomes an ethics of difference, an ethics of responsibility for the Other. It is no rejection of rationalism and reason, rather, it supplements the cherished jewels of the Enlightenment by showing that reason is not and can never be total. 

Dawn of contemporary postmodernism is succinctly described by Gregory Smith as: 

“fundamentally a sign of disintegration, of transition, of waning faith in the modern ideas of  Reason and Progress, and the Enlightenment project in general”. 

  • Emergence of Postmodernism

A crucial moment in the history of the “emergence” of postmodernism is Adorno and Horkheimer’s philosophical fragments, published under the title Dialectic of Enlightenment as the product of the authors’ wartime exile. In this work Adorno and Horkheimer note that Enlightenment, understood in the widest sense as the advance of thought, has always aimed at liberating human beings from fear and installing them as masters.  

              “Yet the wholly enlightened earth radiates under the sign of disaster triumphant”. “How can this be, the authors ask. How can the progress of modern science and medicine and industry promise to liberate people from ignorance, disease, and brutal, mind-numbing work, yet help create a world where people willingly swallowed fascist ideology, knowingly practiced deliberate genocide, and energetically developed lethal weapons of mass destruction? And keep doing so. Reason, Adorno and Horkheimer answer, “has become irrational.” 

No less dangerous (for instance, in politics) are those who wish to purify at all costs. One shouldn’t complicate things for the pleasure of complicating, but one should also never simplify or pretend to be sure of such simplicity where there is none. If things were simple, word would have gotten round …”

  • Critical Theory as Postmodern Legal Movement

Critical legal theory as a postmodern legal movement then, owes its debts to the disasters of modernity. It remains engaged with these disasters as a monumental fall from grace, in the perhaps na├»ve hope that, to paraphrase Santayana, we may yet learn from history, lest we are doomed to repeat it. 

Conclusion 

Critical law Theory is considered as radical by many today. It is submitted that CLS and its technique is to filter the process of thinking of mankind. Most of the general public finds anything more acceptable which brings in more explanation for things going around us in our day to day life. CLS and its technique reveal an attempt to bring equality and more thinking into law. Trashing, genealogy, deification etc. are all well convincing methods of looking into things surrounding our day to day life to find the right reason and hence bring equality into law. However, it needs to be mentioned as well that too much critical thinking into anything may not bring the right or convincing result. Therefore, a balance between critical thinking and a liberal approach is a must for a better philosophy.
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