An Overview Of Critical Legal Studies

An Overview Of full of life Legal StudiesThe capitulumed(p) quotation in question is by Robert Gordon, in Law Ideology as featured in Lloyds entry to Jurisprudence by MDA Freeman where he has touched upon critical level-headed studies. For our purposes, my answer will provide a short explanation of what the critical legal studies is about, then it will feature how practice of law maintains difference according to critical legal scholars, and what techniques are adopted in response to the inequalities and fin onlyy how effective these techniques are.Critical legal studies (hereinafter referred to as the CLS) grew out of a dissatisfaction with current legal scholarship.2As Raymond Wacks3put it the most eventful feature of CLS is its rejection of what is taken to be the natural tack of things, be it free market or meta-narratives, or the conception of race.Law based on condition is what attract the scholars of CLS the most. For the scholars of CLS it is to doubt the prospect of uncovering a universal foundation of law based on reason. The myth of de terminationinacy is a signifi send wordt element of the critical assault on law.4To the scholars of CLS, law is far from macrocosm a determinate, coherent body of rules and philosophy, the law is portrayed as uncertain, ambiguous and unstable.5If American legal realism was jazz jurisprudence, Critical Legal Studies may be its rock successor.6Ronald Dworkin found the CLS resembling the older causal agent of American realism, and for him it was too early to decide whether the CLS is more than an anachronistic attempt to make the then dated movement reflower.7Professor Hilaire McCourbey and Dr. Nigel D. White8finds the ultimate target for scholars of CLS is to destroy the notion that there is sensation single truth, and that by disclosing the all-pervasive ply structures and hierarchies in the law and legal system, a multitude of other possibilities will be revea guide which are all equally valid.LAW, ITS INEQUALITY AND OTHER ISSUES SURROUNDING LAWThe scholars of CLS find it very disturbing how the law maintain inequalities in society.According to the scholars of CLS, legal doctrine is limited and imperfect. Legal doctrines can only offer a particularize view of the world. Robert Gordon finds the legal doctrine to comprise of abstract and impoverished categories. These crude, artificial categories e.g., found in criminal law, laws of contract and family, which will illustrated below, are based on complex human relationships although they in no way reflect or naturally represent with what is occurring.With regard to criminal law, M Kelmen9 parts the example of a wife who, having been battered by her husband, kills the husband. so she pleads the defence of provocation. Question arises whether the judge is to adopt a narrow time frame10or that of a broad single11. No one can say it for sure which law is to be applied here for certain. There may be circumstance where the alleged offen der is considered in a narrow time frame basis and another in a broad one. This line of approach is making individuals fall into the contradiction in law set about in criminal law.The law of contract where the principle enshrined in the maxim caveat emptor a maxim devised to protect capitalist interest against the interests of the ineffectual consumer stands against the principle that it is the function of the state to intervene to protect the weaker party against exploitation is a clear reflection of inequality in law.12This kind of contradiction in law has always put the judges in confusion as to which principle a judge needs to follow in a given case. It is argued by the scholars of CLS that law is fundamentally political. For D. Kennedy13there is no line amidst private and public law. It is a myth.14There is nothing natural or indifferent about contract law as much as administrative law, property law as much as environmental law.15The law of co-habitation opens browse of options to a judge which makes it hardly possible to come to a decision which ultimately causes conflicting outcomes from the courts of law. Where a woman who seeks to enforce a co-habitation agreement against a male partner the question that comes before the court is to choose amongst (1) common law principle that such agreements are not legally enforceable because of the presumption that such agreements lack the necessary element of an blueprint to create legal relations and (2) the principle, arising from public policy that it is the duty of the courts to give effect to the intention of the parties. This has always put judges in a difficult position as said earlier.For Peter Gabel,16one is never, or almost never, a psyche instead, one is successively a husband, a bus passenger, a small businessman, a consumer and so on, in contemporary capitalist society. To Mark Kelman,17liberalism in the eye of Crits is a system of thought that is simultaneously beset by internal contradicti on and by systematic repression of the presence of these contradictions. Liberalism focuses upon individualism and self-interest at the personify of others. The scholars of CLS are against such notion. Such preference is evinced in the laws creation and maintenance of segment between the public and private matters. mill liberty is the perfect example. Mills liberty is the principle that an individual can be compelled where his actions harm others, but must be free where his actions affect himself. The courts always find it difficult to resist oppression in the private realm because of the legal division between public matters, in which the state or its laws can intervene, and private matters, in which they cannot. The Crits of CLS termed this division as false and a mere illusion.Robert Gordon very clearly mentions that for the Crits, law is inherently neither a ruling-class game plan nor a repository of shocking with perverted principles. To Gordon, it is a plastic medium of di scourse that subtly conditions how we experience social life.18Robert Gordon refers to some basic points that the Critics want to make about legal discourse. He refers to discourses of power. Law cannot be a toy for the powerful to play with. However, in reality to avail legal services or matters in conjunction to it one has to be able to wield legal discourses with facility and authority or to pay others, such as lawyers, legislators, lobbyists, etc., to wield them on your behalf is what matters and that is what is takes to posses power in society. For this reason legal discourses tend to reflect the interests and the perspectives of the powerful people who make most use of them.19This may be regarded as another example of how law maintains inequality in the eyes of the scholars of CLS. However, whether actually being used by the powerful or the powerless, legal discourses are saturated with other non-legal discourses that for the most part skip and justify in subtle ways the exis ting social order as natural necessary and just.20It is a common phenomenon to make laws to spur frugal competitions and thus assisting the elite class in their search for power and wealth. Duncan Kennedy21mentions that the primary targets in Legal Education are the unhealthy hierarchies at various levels corresponding those existing between lecturers and the students they teach those between the faculty members and the administrative support and he terms them all as false and unnecessary hierarchy which gets into the mind of law students and thus creates a continual chain of hierarchies.TECHNIQUES APPLIED TO LEGAL DISCOURSESTrashing or DebunkingAs McCourbey and White put it trashing is mainly aimed at revealing the illegitimate hierarchies that exist within the law and society in general.22The scholars of CLS are essentially engaged in revealing those hierarchies and undermine them. In Marxism the hierarchy of power exist in terms of classes but he we have seen the hierarchy to exist even in universities where there is a power relationship between lecturer and student.23It is much more complex than the marxists view.24Trashing involves seeking to question and challenge the mainstream liberal legal regime. Mark Kelmans scepticism towards mainstream or orthodox views of law led to defend trashing against mainstream academic critics and stated that the discrediting of accepted legal argument is good. The following extract from Kelman explains the purpose of trashing or debunking25We are also engaged in an active, transformative anarcho-syndicalist political project At the workplace level, debunking is one part of an explicit effort to level, to reintegrate the communities we live in along explicitly egalitarian lines rather than along the rationalised hierarchical lines that currently integrate them. We are saying Heres what your teacher did (at you, to you) in contracts or torts. Heres what it was really about. Stripped of the mumbo-jumbo, heres a set of pr oblems we all face, as equals in dealing with work, with politics, and with the world.26The above quotation reveals the tension of exposing hierarchies at work place, specifically it goes on to mention within the law school and expressly between the teachers and students as discussed earlier. Kelman further mentions that one main objective of trashing is to de-stabilising view of the theoretical world that is trapped in liberal legalism. Trashing helps us to see the inherent complacencies and assumed premises in liberal legalism as imperfect and opposes the belief that the world is running smoothly. Robert Gordon, in his Law Ideology, states that trashing techniques are used sometimes alone to attack the discourses on their own terms to show their premises to be contradictory or incoherent and their conclusions to be arbitrary or based on dubious assumptions or hidden rhetorical tricks.27He claims that this would reveal the hidden truth of obscure realities.DereificationDereifica tion is aimed at exposing what the scholars of CLS see as one of the most important functions of law in a liberal society.28Mostly everyone is in a trapped situation that is to say an implicit hierarchy is established in society. The term employee is attached to people who agree to work for another in return for payment and the term employer is used to refer to the person or body who hires them. The use of employer and/or employee is attached with a range of consequences and expectations for both parties. For this reason the parties are led to behave in a particular way that is to say on the basis of their formalised relation under the heads of employer and employee. In this sense reification has occurred. Peter Gabel has characterised law by reification, which involves a gradual process whereby abstractions, originally secure to concrete situations, are then themselves used and operated instead of the concrete. Dereification involves the scholars of CLS to see it the other way rou nd. Dereification is basically the recognition and exposure of such fallacies to reveal the law as it really is.DelegitimationTo delegitimate law the scholars of the CLS attempt to strip away the veneer of legitimacy to reveal the ideological underpinnings of the legal system.29McCourbey and White states that delegitimation is aimed at exposing what the scholars see as one of the most important functions of law in a liberal society, namely the legitimation of the socio-economic system of that society. This brings the important insights into the law.GenealogyRobert Gordon considers genealogy as another technique to highlight the awareness of the transitory, problematic and manipulable ways legal discourses divide the world which is by writing their history.30CONCLUSIONCLS is considered as radical by some(prenominal) jurists 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 whic h 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, dereification etc. are all well convince methods of looking into things surrounding our day to day life to find the right reason and hence bring equality in to law. However, it needs to be mentioned as well that too much critical thinking in to 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.Words Counted2061