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					Critical Legal Studies
     January 23, 2013

       Leah Gardner
       Caroline Bélair
      Rachel Davidson
      Molly Churchill
  Assigned Readings
Jonathan Turley, « The Hitchhiker’s Guide to CLS, Unger
  and Deep Thought », (1987) 81 Northwestern University
  Law Review 593.

Jennifer Nedelsky, « Reconceiving Rights as Relationship
  » dans Jonathan Hart & Richard W. Bauman (dir.),
  Explorations in Difference: Law, Culture, and Politics,
  Toronto, University of Toronto Press, 1996.

Pour aller plus loin:

Patricia J. Williams, « Alchemical Notes: Reconstructing
  Ideals from Deconstructed Rights » (1987) 22 Harv.
  C.R.-C.L.L. Rev. 401.
Critical Legal Studies (CLS)
 Historical Context
- Vietnam War (1955-1975)
- Civil Rights Movement

- 1977: official start of the CLS movement    Rosa Parks



- Foundations:
     - Critical Marxism
     - Legal Realism (1900-1960s)
      - Holmes (late 19th century)
      - Recognize "real" way in which judges make
      decisions
  CLS Critique of Blackstone's
Commentaries by Kennedy (1979)

                    A Treatise on
                      the common
                      law of
                      England,
                      18th century
 Key elements of CLS
- Legal language and institutions that appear neutral
   actually mask relationships of power

- Law = a tool used by the powerful to maintain the
   status quo

- There is no single truth: multitude of alternatives

- "It has been said that if Kennedy is the Pope of
   CLS, then Unger is the Christ figure" Turley, p. 14
   CLS critique of major legal
    theories or approaches

- Formalism
- Positivism
- Rationality
- Liberalism
 CLS rejects Formalism
- Formalism:
     - Legal reasoning = science
     - Use of formal rules to resolve dispute
     - Legal autonomy

- CLS + realists highlight role of other
  factors in adjudication: effects of rules,
  values, morals and social, political and
  economic context, personal factors...
 CLS rejects Positivism
- Think back to the Hart-Fuller debate

- Positivism:
    - Morality plays no part in defining law
    - Scientific or empirical approach to law
 CLS rejects Rationality
- Rationality:
   - Belief that there is a rational foundation
   for legal doctrine and development

- CLS:
   - rejects pure reason as foundation for law
   - questions use of reason to legitimize law
   - recognizes role of passion, will, etc.
 CLS rejects Liberalism
- Liberalism:
  - "precisely what liberalism is has been a
  source of disagreement" Turley, p. 9
  - Freedom to pursue own interest

- 2 particular aspects critiqued by CLS:
    - Rights talk
    - Neutral adjudication
          CLS rejects Liberalism:
           Critique of Rights
- CLS Critique of Rights:
 1) Rights are individualistic
 2) Rights conceal political issues
 3) Rights distance individuals
 4) Rights serve political and economic
 requirements of liberalism (ex. Right to K)

- Critiques are revisited in the Nedelsky and
Williams articles
 Trashing
Think expose, expose, expose!
  - the political, nonneutral nature of law
  - illegitimate power structures
  - the ideological underpinnings of legal system

“One must start by knowing what is going on,
by freeing oneself from the mystified delusions
embedded in our consciousness by the liberal
worldview” A. Freeman, in Turley, p. 11
 CLS Tools
- Deconstructionism
 - no text has an objective meaning
 - language is inherently non neutral

- De-Reification
  - Reification: Concept is taken out of context,
  distorted/co-opted

- Contextuality
 - Recognize context in which law
    takes place
  Summary
 Foundations       Views criticized by CLS              Tools used by
   of CLS                                                   CLS
                   Liberalism
Critical Marxism   (rights and neutral adjudication)   Deconstructionism
                   Positivism                            Contextuality
Legal Realism
                   (scientific approach to law)         De-Reification

                   Formalism
                   (legal autonomy)

                   Rationality
                   (pure reason legal foundation)          Trashing!
  Trashing Exercise: It's Fun!
"[T]he principal aim of society is to protect individuals in
   the enjoyment of those absolute rights, which were
   vested in them by the immutable laws of nature, but
   which could not be preserved in peace without that
   mutual assistance and intercourse which is gained by
   the institution of friendly and social communities.
   Hence it follows, that the first and primary end of
   human laws is to maintain and regulate these absolute
   rights of individuals."
   Blackstone on the Absolute Rights of Individuals (1753)
Roberto Mangabeira Unger
  The "Christ of CLS"




Philosopher, Social Theorist, Politician
              Core Concepts
•   duality
•   neutrality
•   contextuality
•   context-breaking
•   plasticity
•   anti-necessetarianism (false-necessity)
•   the super-liberal society
  Critiques of Unger
-Too optimistic: Van Zandt

-Stability is not all that bad: Sunstein

-Not pragmatic enough to achieve change: West, Cornell

-Too focused on individual: Cornell

- Omission of plight of oppressed people: West
 CLS critiques of rights
- Too individualistic
- Obfuscate real political issues
- Alienate and distance people from one
  another
- Serve the political and economic
  requirements of liberalism
  Patricia Williams
"Reconstructing Ideals from
Deconstructed Rights" - Critique of CLS
- Little minority and grassroots membership and input
- Message not accessible or applicable to those who need it
   most
- Belief that rights are counterproductive to social change
   ignores the degree to which rights-assertion has achieved
   social change
- For African Americans, rights are powerful symbolic tool
- Instead of abandoning rights, we need to give them away
   as gifts
 Nedelsky - Rights as Relationship

Nedelsky's outline:

• Justifying Constitutional Rights
  o Rights as Collective Choices
  o Beyond the "Pure Democracy" Critique

• Critiques of "Rights Talk"
• Applying "Rights as Relationship"
 Nedelsky - Rights as Relationship
Move away from...
 Nedelsky - Rights as Relationship

By...

                     ...understanding rights
                        as collective choices,
                        with mutable
                        definitions/meanings.



    For example...
 Nedelsky - Rights as Relationship
Canadian Charter, s. 15
  Nedelsky - Rights as Relationship
...By...

"Democracy has never been
  the sole or even primary
  value of either the U.S. or   ...recognizing
  Canada, and it could             democracy is not our
  never be the sole basis for      sole societal value.
  a good society" (p. 6)



      For example...
 Nedelsky - Rights as Relationship
Autonomy
  understanding it in terms of relationship helps us "begin
  to rethink what it means conceptually and
  institutionally for autonomy to serve as a measure of
  democratic outcomes" (p. 7)
 Nedelsky - Rights as Relationship
Implication:

    Focus on relationships to foster
               autonomy.



                        By...
 Nedelsky - Rights as Relationship
...Understanding that rights serve to structure
   relationships - and then making this
   understanding central to discussions about rights.



"What rights in fact do and always have
 done is construct relationships - of power,
 of responsibility, of trust, of obligation"
 (p. 13).
 Nedelsky - Rights as Relationship

Keeping relationship central to our
 discussion of rights allows us to address 3
 main concerns CLS scholars (and others)
 have raised about "rights talk"...
 Nedelsky - Rights as Relationship
Critiques of "Rights Talks"

1. "rights" are too individualistic




"It is my hope that the notion of rights can
  be rescued from its historical association
  with individualistic theory and practice."
 Nedelsky - Rights as Relationship
Critiques of "Rights Talks"

2. Rights obfuscate what
is really at stake


Nedelsky:
A focus on relationship
helps "loosen up the
existing reification" (p.17)
 Nedelsky - Rights as Relationship
Critiques of "Rights Talks"

3. Rights are alienating and distancing; they
  act as barriers between people


Nedelsky: A focus on relationship helps us
 see "that our 'private rights' always have
 social consequences" (p. 17).
 Nedelsky - Rights as Relationship
Implication: change our understanding of
  constitutionalism
"My idea of Constitutionalism is to make
 democracy accountable to basic values, to
 have mechanisms of ongoing dialogue
 about whether the collective choices
 people make through their democratic
 assemblies are consistent with their
 deepest values" (p. 20).
 Nedelsky - Rights as Relationship
Major point of agreement with CLS:
• the "rights bearing individual" at the heart of
  liberal political thought does a disservice to all
  and dehumanizes us

Major points of agreement with Patricia Williams:
• discarding the idea of rights is not the solution
• recognition of (inter)dependence (Williams,
  p.429)
• widening understanding of impact of private
  rights (Nedelsky, p. 17; Williams, p. 432)/
 Nedelsky - Applications/questions
1. Torrito c. Fondation Lise T.: How can we
   imagine the discussion in this case about right
   to privacy being different if it were conceded
   that rights are primarily about structuring
   relationship?
2. Does Nedelsky's reconceptualization of rights
   address concerns raised by people such as
   Andrew Petter in the lead-up to 1982 about
   Charter rights hiding the problems of wealth
   and power disparities?
 Discussion Questions
1. Critics have said that Unger is too optimistic and
   theory-based. In a recent op-ed in The Globe and
   Mail, Jeffery Simpson criticized the Idle No More
   movement, stating that "too many first nations
   people live in a dream palace." Does 'dreaming'
   have a role to play in creating a more just legal
   system or is it counter-productive?

1. How useful is the concept of "rights"? What are its
   pros and cons?
 Discussion Questions
3. Patricia Williams starts out her piece contrasting her
   experience as a Black female lawyer and academic
   searching for an apartment to that of her White male
   colleague. Both were looking "to establish enduring
   relationships with the people in whose house we would
   be living; [they] both wanted to enhance trust of
   ourselves and to allow whatever closeness, whatever
   friendship, was possible." Williams explains, however,
   that because of their respective social locations, the way
   they sought to establish such a relationship was polar
   opposite. What implications (if any) does such a
   realization have for Nedelsky's proposal to reconceive
   rights as relationship?

				
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