The Critical Legal Studies ( CLS ) movement has its origins in the United States during

Transcription

1 Jurisprudence Critical Legal Studies Movement February 2006 George D. Pappas, Esq. International Center for Legal Studies PART I The Critical Legal Studies ( CLS ) movement has its origins in the United States during the turbulent 1960 and 1970 s. The CLS movement grew from a generation that questioned authority in America. It was a time that encompassed the Vietnam War, the Civil Rights Movement, President Lynden Johnson s War on Poverty and and a time that was capped by the Watergate Disgrace that led to President Richard M. Nixon s forced resignation. It was a time when authority was questioned; a time when the so called establishment lost its moral rudder and lost the respect of vast segments of the American population. Within this social and political context, the very notion of law was questioned not only in terms of what legal positivist s have traditionally asked; namely, What is the law., but also asked what does the law do? The CLS movement questions not what law is, but what effect laws have on society, social relations, assumptions about marriage, employment it was an effort to demystify law s neutrality not within the narrow compass of the Feminist critique along gender lines, but more fundamentally along the lines of looking how law, like religion, law was entrenched through myths and what the CLS school terms reification that is, the self 1

2 perpetuating use of law to underscore law s equitable and righteous role in society. These assumptions were questioned and ultimately attacked by the CLS School. As Wayne Morrison so eloquently says in his book, Jurisprudence: from the Greeks to post-modernism, CLS is a reflection of a contemporary loss of faith in all forms of thinking that make the social structures of the modern world appear natural, inevitable, inherently justifiable and unquestionably progressive. (pg. 451, 1997 Edition) The CLS School also questions the liberal reasoning which sees judges as neutral officials who adjudicate on the basis of compliance with a prescribed body of rules. In this view, similar to Marxism, the CLS School sees the law as prescribed and applied through judges as actively promoting the interests of the dominant economic and social class. The social sciences which underpin the law are also attacked by the CLS School, since the law assumes the justification upon which such social science theories (in terms of dictating what particular kind of society should exist) are based. Therefore, on numerous points, the CLS School is very critical of liberal jurisprudence, and at the very least, liberal jurisprudence is seen as a smoke screen for the dominant class interests. Looking at the Foundation of Law s Myth In order to appreciate how law is propped up as a universal myth of truth and equity, it is important to understand the process that lead to this so called reification. 2

3 Firstly, law is invented. By invention, we lay the stress on the fact that it is man who creates the law. It is not divine. It not discovered, but simply, created by man. The details of that creation are not vital at this stage, but what it vital is that you not loose sight of the fact that when men create laws, they do so to protect the status quo or to entrench their own societal relations. You could easily draw parallels here with Marx or the Feminist movement. Law creates categories. When categories are created, frameworks emerge, and people start to see themselves as players within certain categories. For example, employer/employee, debtor/creditor, landlord/tenant. Keep in mind, it is the law that has created these categories. It is the law which has invented the context of these social relationships. Therefore, the first part of the mythology of law is that people believe that these categories are some type of natural state. This assumption or belief is further solidified because the law has replaced religion in many parts of the world as having a sense of mysticism and respect. Once you buy into this context setting you can start to visualize how easily people and then society come to view their world within the framework of what the law has described or defined. In essence, law conditions people to view their role in society. Law s role is so powerful in this respect because its effect is not seen, its role is not heard, and its role is subtle. That subtleness makes it seem natural and that is where is where the CLS movement steps in. 3

4 The CLS approach attempts to de-mystify this subtle role and effect of law. The major theme propounded by the CLS movement was to coin the term reification to isolate the subtle nature of laws effects. The CLS movement sees reification not simply as making a private error about the true nature of what we are talking about, but rather, people participate in an unconscious conspiracy with others whereby everyone knows of the fallacy, and yet denies that the fallacy exists. 1 As such, reification creates a social context. In other words, reification extends to the limits of how we talk and think about our society, Once members of society accept the terms that box them into categories, they will in turn buy into the abstraction that such categorization creates. Once this stage is complete, people will have become, through some sort of collective insidious conspiracy, subsumed into a social context that appears natural and real. From this point forward, all social intercourse, especially as it relates to the law, is on the reification terms underscored by laws conspiratorial edifice. It is because the law is able to pull the wool of our eyes as effectively as it does that it attains the power of legitimizing itself. That is a powerful force to deal with it has at this stage attained the power of religious dogma and awe. The problem therefore becomes one of real world reference point. In other words, once the law s legitimizing power has successfully become the starting point of your mental reference point about how the world operates or what the law is, then any further discussion or analysis is always cast within that context of this abstraction and the categories that law has embedded within each one of us through reification. our thinking about law and society is made up of ideas that inhibit us from realizing that TP1 P Gabal, Reficiation and Legal Reasoning (1980) 4

5 things could be different, because we are dependent on our existing ideas to make sense of what we see around us. 2 One writer, the Italian Marxist, Gramnsci, argued that one of the functions of the legal system in a capitalist society is to propagate an ideology which gives legitimacy to the activities of the ruling class. For example, technological advances, is seen as exploitation; repression of minority views is sanctified as being in the interests of the majority. CLE writers such as Horiwitz have interpreted the economic history of America in these Marxist/Gramnsci terms; namely, the advancement of the corporate personality is cast as a cover for the intensification of exploitation by bankers and industrialists. Formal jurisprudence, specifically corporate rights, the law of contract and statutes such as the US Uniform Commercial Code or in the UK, the Sales and Good Act, accept the status quo and are condemned by Horiwitz as aiding and abetting the process of legitimization. Once you re able to understand how reification underscores law s legitmizing effects, then you can begin to question laws per se, and what is important is that this questioning does not become overwhelmed by the context building or reification that distorts the possibilities of change. The groups that benefit most from laws legitimizing nature, to use a Marxist phrase, is the superstructure of the powerful interests that influence and control legislatures, the media, education and ultimately law s creation. For those who suffer from the effects of laws reification, such as the poor, the labour movement, woman until this veil of ignorance is lifted, and until a new paradigm of consciousness is able TP2 RW Gordon, New Developments in Legal Theory (1982) 5

6 to emerge, these groups will lose a social and legal battle without ever knowing that a war took place. It is becomes a quiet battle, but a devastating one since it s presence and effects are not consciously known by the losers or the victims. In a nutshell, once the veil s of ignorance and legitimizing effects of law reification are exposed, possibilities for greater and deeper change in the law become possible. Once those possibilities become known, then the playing field between the have and the have nots becomes a closer contest. Law like religion and television images is [one of a number of] clusters of belief and it ties in with a lot of non-legal but similar clusters that convince people that all the many hierarchical relations in which they live and work are natural and necessary. 3 Focusing on What the CLS Movement is Aiming At Clearing the Picture By forcing the legal scholar to consider the framework of assumptions that structure problems and solutions in the discipline, criticism has increased self-consciousness and deflated the scholars implicit claims to objectivity. 4 As a threshold objective, the above statement would amount to a major breakthrough in legal education. Imagine, if you will, that law schools, in particular, North American laws schools with their assembly line of JD courses, would actually stop and acknowledge that what is taught there is not as objectively derived as they implicitly assumed. 3 Ibid. 4 Davies & Holdcroft, Jurisprudence: Texts and Commentary, (1991), pg

7 Dominant Themes of the CLS Movement 1. Indeterminacy 2. Contradiction 3. Legitimation and false consciousness Indeterminacy: CLS writers reject the view that legal doctrines can determine the outcome of a case. A judge who tries to apply the controlling doctrine may believe that his conclusion follows from doctrine, but in fact the judge could also have reached a different result using the same materials. Essentially, the indeterminacy CLS view asserts that laws do not by necessity produce specific outcomes. Instances where opposing counsel present two different positions around the law occur every day. Drawn to its ultimate conclusion, the indeterminacy view if true would render the law unable to establish a body of rules since such rules, according to this school of thought, would be unable to produce specific outcomes. Therefore, the power of judges and the role of lawyers becomes paramount in advocating the strongest view a view that would be able to bend and shape the law per se to sanctify whatever ruling were adopted by the court. Contradiction Essentially, the contradiction theory of the CLS School rejects the idea that a legal doctrine contains a single, coherent, and justifiable view of human relations. Rather, this CLS view posits that competing views of human relations underpins the law, and that 7

8 none of these views per se is the dominant view. This argument, however, would carry greater weight if cast in terms of honestly acknowledging that one can advance a legal theory or doctrine so long as they admit that their policy or conclusion is not necessarily a universal truth,. Otherwise stated, law review articles and legal doctrines published within the realm of law schools can on the one had advance a unified view of the law as being coherent and plausible so long as such research makes it plain what their aim or agenda is. As such, if you are advancing the case for abortion, then you will acknowledge the roll of the courts, case law, empirical studies, freedom to choose, religion, and more. Your goal is not to advance a unified doctrine that purports to be the untouchable law, but an honest appraisal of why the author believes that such legal doctrine has merit. It is the open acceptance of competing theories, while advancing one in particular, which the CLS School would embrace as a way of bring the law down to earth. Legitmation and false consciousness By far the predominate view within the CLS movement is that law serves the powerful, not in an immediate and direct way, but instead through legitmation. Here, the rhetoric of legal rights and the rule of law leads people to think that the existing order, despite its inequitable aspects, is just or at least that it is better than an alternative. False consciousness is a failure to see the exploitative aspects of the current system. 8

9 There is no reason to doubt that the legal system does have a legitimating effect, in the sense that it is one of the many important influences upon general attitudes about what is ordinary, natural and beneficial. The one proposition uniting CLS authors is that liberalism in its various forms plays a central role in shoring up the current system, a system that they see as pervasively unjust. This thesis advances that idea that the system compels the victims acceptance of the status quo by unconsciously buying into the legal status quo. CLS adherents content that the present system continuously oppresses and exploits people and that legal doctrine keeps them unaware of their true interests. Professor Wayne Morrison does an excellent job of organization the major themes which unite the CLS movement: According to Morrison: Most CLS writings are expressly an assault on liberal legislation which is viewed as making several wrong assumptions: 1. The assumption of law s neutrality. 2. The assumption that legal reasoning is an unproblematic matter. 3. The assumption that laws are positive ideas of social life, i.e., that they have fixed objective meanings which can t really be challenged; that their validity and significance are settled by objective unchallengeable methods. 9