Critical Legal studies

By Guyora Binder

CLS- movement in legal scholarship associated with the Conference on CLS
an org inaugurated by a small conference at the University of Wisconsin in
1977
Has had a continuing influence in the fields of legal and constitutional
theory, legal history, labor and employment law, international law, local
government law and administrative law.
Critiques the role of law in maintaining hierarchies based on sex, race, and
sexual orientation.

Critical Legal Studies as Analytic Jurisprudence: The Critique of Liberal
Rights Theory
1. By stressing the economic and social interdependence of legal
persons.
2. Critical legal scholars saw rights as:
a. Relations among persons regarding control of valued
resources. L
b. Legal rights are correlative; every legal entitlement in an
individual implies a correlative vulnerability in someone
else, and every entitlement is limited by the competing
rights of others.
c. Property rights are interpreted as delegations of sovereign
power to individuals by the state; these rights should
therefore be defined to accommodate the conflicting
interests of social actors.
3. The indeterminacy thesis claim about classical liberalism and its
aspiration to secure liberty through a rule of law. No determinate
rule system can secure liberty.
4. Critical legal scholars indeterminacy critiques of liberal rights theory
and of instrumental jurisprudence attributed indeterminacy to a
good deal of American legal doctrine.
5. The indeterminacy of rights results from their correlative character
and from the interdependence of economic actors.
6. Rights are claims to social support for the pursuit of self-interest at
others expense.

Critical Legal Studies as Social Theory
1. They saw legal language as indeterminate because of the
indeterminacy of the social context to which it refers. The
indeterminacy of the social world frustrates instrumentalist efforts to
efforts to explain or prescribe legal rules on the basis of their services
to certain interests.

The critique of instrumentalism
2. Gary Peller made this rejection of realism explicit, while making clear
that it by no means entailed a return to the formalism of liberal
rights theory. He argued that realism perpetuated the basic flaw of
formalism:
a. Its commitment to determinacy. Instead of seeing the social
world as determined by law, realism insisted that legal
decisions are and should be determined by their social
context.
b. Instead of subordinating facts to rules, legal realism
subordinated rules to facts.
3. Most such scholarship explores three models of social choice: the
adversary process, the electoral process, and the market.
4. Critical legal scholars, by contrast, argued that no mere
combination of the three above-mentioned can automatically
produce legitimate social choice.
5. William Simon made this argument with respect to the adversary
process. In The Ideology of Advocacy, he argued that lawyers
cannot represent their clients without attributing to them
interests that are recognized by the legal system as legitimate
and realizable.
6. Critical legal scholars similarly attacked economic analysis of law,
on the grounds that it mistakenly treats individual economic
preferences as independent of legal rules.
7. Accordingly, these critical legal scholars argued, questions of
allocative efficiency can never be separated from questions of
distributive justice.

The critique of instrumental reformism
1. Accordingly, the critical scholars anti-instrumentalism is aimed
not only against these institutions, but also against liberal reforms
designed to improve them.
2. Many readers understood these articles to imply that it is the
market that chiefly oppresses the poor, whose ranks include
substantial numbers of workers and persons of color. Some
readers went on to assume that such Marxist scholarship took the
institution of a market as a given, and presumed that unless
capitalism is overthrown, struggles for civil or labor rights are
futile and misdirected.

The critique of revolutionary instrumentalism
1. Ed Baker identified instrumentalism as the separation of means
and ends. Arguing that the distinction is artificial and cannot be
maintained, he attacked the notion that the end of progressive
social change justified violent or coercive means.
2. Bakers chief purpose was to argue that even the radical change
to a collectivist or communal requires strict protection of
individual freedom of opinion.
3. Marx: concept of capitalism, the paradigm for all modes of
production. At least 3 factors were crucial for the identification of
a capitalism economy:
a. A predominance of Free labor, understood as the
condition which a laborer owns all of her own labor and
none of the means of production;
b. Commodity production for private accumulation of
wealth; and
c. Sufficient accumulation of wealth to enable
industrialization.
4. A market is a means of aggregating desires.
5. For Marx, economic life consisted in production rather than
consumption, and the value of products was a function of labor
rather than consumer demand. Thus economic necessity would
have meant necessary to production,: not necessary to the
satisfaction of consumer demand.
6. We can only conclude that bondage allocated labor inefficiently
by viewing labor as a consumer good rather than a factor of
production.
7. We have seen that critical legal scholars argued that the concept
of efficiency is thoroughly indeterminate when applied to the
allocation of resources for consumption.
8. What bound free wage labor to the service of industrialization
and accumulation to form capitalism was culture

Conclusion
1. The indeterminacy of interests, as developed by critical legal
studies, undermines the instrumental conception of society that has
informed much policy analysis across the political spectrum.
Although the indeterminacy critique of instrumentalism was critical
legal studies more original and significant philosophical claim.