Chapter 25 3. The Critical Legal Studies Movement

The approach taken by the critical legal studies school is in almost every respect diametrically opposed to that of the law and economics school.This school believes that the views of the school of law and economics regard the maximum satisfaction of individual desires as the goal of politics and law, and according to the interpretation of laissez-faire from the critical legal studies school, in addition to disrupting social order or harming other individuals' desires , all desires should be satisfied equally.In this view, there is no hierarchy of interests, and there is no question of whether people should applaud the values ​​that are considered to be of special significance to building a good society.

Jurists of the critical legal studies school believe that values ​​and interests are mostly not private and subjective, and that political and social order should prioritize values ​​such as cooperation and concern for others.That is, values ​​that help prevent the alienation of the individual from society and build organic community. Two prominent members of the movement, Duncan Kennedy and Roberto Unger, also waged a violent campaign against all forms of hierarchy and domination. attack, they believed (a belief that was also implicit in the writings of other members of the critical legal studies movement) an egalitarian society with democratic institutions in which all people participated in major decisions.In such a society, many social values ​​will be shared by the whole group.

Jurists of the critical school of legal studies are generally skeptical and largely negative about the law.But it is not always clear whether their criticisms are directed at the state of American law, or at the legal system itself.Some of the broad statements made by advocates of the critical legal studies movement involve the deep-seated belief that law is so flawed that any beneficial effect it might have had on society is nullified.On the other hand, there are many passages in the critical legal studies literature that make one believe that these texts point to certain features of the contemporary American legal field.

Adherents of the critical legal studies school believe that law is ambiguous, ambiguous, and full of contradictions, both in its interpretation and application, and in its essence and core.To grasp the origin of this view, it is necessary to familiarize yourself with some facts in American legal history. In the late eighteenth century, during and after the American Revolution, the British common law, which was not a codified and systematized legal system, was accepted as the governing law in the North American colonies. It is a collection of a large number of court cases.These jurisprudence do not always agree with each other.Furthermore, in the colonies of the United States, and later in the states of the United States, the interpretation and application of these precedents are not the same.In addition, the United States has passed many statutes that either supplement or change the common law.

As early as 1837, a well-known American judge, Joseph Storey, complained about the proliferation of judicial precedents in Massachusetts and believed that codifying the state's laws was appropriate at the time.His conclusions were backed by a committee of legal experts, but the state legislature rejected the committee's recommendations.Since then, the number of judicial decisions in the jurisdictions of the states and the federal government has increased by more than a thousand times.It is also a fact (not only true of American law, but of all other developed country legal systems) that the language used in statutes is often ambiguous and vague, causing different courts to interpret it in various ways. Explanation.It can thus be argued that the critical legal studies movement's claim that American law is mostly uncertain is true.

One of the contradictions highlighted by some scholars in the critical legal studies movement has little to do with the realm of judicial decision-making, focusing instead on the conflict between two fundamental values ​​that a legal order should promote.These two values ​​are freedom and security.According to liberal theory, individuals should have maximum freedom to pursue their own interests.At the same time, people need a sense of security against interference from others out of self-interest.The difficulty, according to critics of the legal studies movement, is that the more freedom is given, the harder it is to ensure security.It is believed that a fundamental contradiction of liberal theory arises from the fact that security can only be guaranteed by restricting certain liberties.

Another maxim of the critique of the legal studies movement is that law is politics in a different guise and that legal reasoning is not substantively different from political reasoning, that law is seen as a function of dominant thought in the hierarchy of power. expression.At the same time, jurists of the critical school of legal studies have also argued that the massive reliance of law on political pursuits is actually obscured by pretended conceptual devices aimed at creating the impression that law is autonomous and neutral. This part of the canon of critical legal studies rests in part on the Marxist orthodoxy, but goes beyond it, because the critical legal studies literature also deals with the analysis and political valuation of the technical tools of judicial decision-making.Furthermore, a critical view of the class-rule theory of law has been embraced by some representatives of the critical legal studies movement: even acknowledging that a country's legal system reflects the ideology of the country's ruling group does not amount to Say these groups pass laws only for their own benefit.For example, the status of the working class in America has undoubtedly improved a lot since labor unions were considered an illegal cabal.In light of these and other facts, the leading introductory essay to a critical approach to legal studies says, "Orthodox left thinking tends to ignore the fact that the law is just in some cases and also acts to limit the exercise of power" (Keyes: "The Politics of Law" p. 6).