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Critical Legal Studies: An Introduction. Prof. Angelina Godoy Autumn 2007. Where we’ve been and where we’re going. What is the relationship between law and justice? Liberalism - Marxism –

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Critical Legal Studies: An Introduction

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Critical legal studies an introduction l.jpg

Critical Legal Studies: An Introduction

Prof. Angelina Godoy

Autumn 2007

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Where we’ve been and where we’re going

  • What is the relationship between law and justice?

    • Liberalism -

    • Marxism –

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

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Where we’ve been and where we’re going

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

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

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

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Where we’ve been and where we’re going

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

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Law and Society

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

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

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Law and Society

  • A lot of what these scholars are doing is questioning assumptions about the way law works in our society.

  • Why do you want to be a lawyer?

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

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Critical Legal Studies

  • movement in US law schools, beginning in 1970’s, criticized core justifications for US legal system:

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

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

  • These ideas very important for legitimating legal authority:

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Legitimating legal authority

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

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“Strict construction”

  • Idea is that one should interpret laws in terms of what the Constitution says; any changes to laws should be drafted by Congress (no “legislating from the bench”); judges must base opinion in legal precedent, not personal opinions or political inclinations

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

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“Strict construction”

  • Critical legal scholars: “Is it better to legislate from the bench or from the grave?”

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

  • Law is politics!

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

  • Criticizes notion of “government of laws, not people”

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

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

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

  • How is the law separated from politics?

    • -subservient to Constitution, statutes, and precedent

    • -quasi-scientific nature of legal analysis

    • -technical expertise of legal practitioners

    • -decisionmaking process itself assumed sound, such that any reasonable judge would arrive at same conclusion by applying law to facts

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

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

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

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David Kairys

Legal decisionmaking is indeterminate

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

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

  • Ex: right to privacy vs. right to life in abortion debates

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David Kairys

  • But if law isn’t neutral and scientific, why do lawyers get to tell us what to do? Who elected them, anyway?

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

  • Indeed, this is the way we discuss appointments to our highest court – not on the substance of decisions, but on the adherence to this process.

    • judicial restraint vs. judicial activism

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David Kairys

  • Judicial restraint vs. judicial activism is meaningless – it all depends on what issue you’re talking about, and what your desired outcome is.

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

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David Kairys

  • Activism vs. restraint (a.k.a. “loose construction” vs. “strict construction” ) debate obscures real issues:

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

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

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David Kairys

  • Reverence for the Constitution is misplaced:

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

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

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

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

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David Kairys

  • The misplaced faith in legal reasoning that so characterizes the USA has led to a crisis of democracy. How?

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

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

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David Kairys

  • Not only does it distract us from the real issues, but in our country, we ascribe to it such great decisionmaking authority that it regulates distribution of resources, investment, labor…

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

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

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David Kairys

What is the answer, then?

  • Repudiate this mythical model of decisionmaking

  • Repudiate the “American conception of rights as absolute, individual, and without significant effects on society” (13)

  • Repudiate the cyclic, distracting debates about judicial restraint

  • Redeem the law!

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David Kairys

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

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What is the relationship of the law to justice in critical legal studies ?

  • The law depoliticizes the status quo, makes it appear fair or natural when it is not

  • Discourages citizens’ participation in discussions over key policies

  • The law, in this sense, limits democracy and social justice:”This legitimizes private – mainly corporate – dominance, masks the lack of real participation or democracy, and personalizes the powerlessness it breeds.” (12)

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