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CRITICAL LEGAL STUDIES

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CRITICAL LEGAL STUDIES

THIS SCHOOL OF JURISPRUDENCE ENERGETICALLY
DEFINED ITSELF IN OPPOSITION TO THE TRADITIONS OF
JURISPRUDENCE TAUGHT AT US UNIVERSITIES THE TIME
AND FOR THIS REASON IT IS RECOGNISED AS A „NEW
DEPARTURE‟.

IN THE 1970s TWO OPPOSED GROUPS EXISTED AT US LAW
SCHOOLS. THE RADICAL BODY OF YOUNGER FACULTY
MEMBERS AND THE CONSERVATIVE SENIOR PERSONNEL
OF LAW FACULTIES.

AT YALE THE POLITICAL TENSIONS LED TO SIX YOUNGER
MEMBERS BEING REFUSED TENURE BEING CRITICAL OF
THE STATUS QUO. THIS INSTITUTIONAL HOSTILITY
CULMINATED IN THE START OF THE CLS AT THEIR
CONFERENCE HELD AT THE UNIVERSITY OF WISCONSIN
LAW SCHOOL IN 1976 WITH THE AIM OF BUILDING SOCIAL
AND PROFESSIONAL LINKS.

IDEOLOGIES OF CLS

  - OPENNESS TO ALL INTELLECTUAL APPROACHES,
    WITH A STRONG INFLUENCE OF AMERICAN REALISM
    AND MARXISM.

  - THEY ACCEPTED THE SCEPTICISM OF FORMALIST
    APPROACHES TO LAW (AS EVIDENT IN THE
    AMERICAN REALISM) AND ACCEPTED THAT THE
    STUDY OF THE LEGAL SYSTEM WAS FOUND IN THE
    PERSONAL AND POLITICAL FACTORS.
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- HOWEVER, THE DIFFERENCE BETWEEN AMERICAN
  REALISM AND CLS IS THAT WHILE THE AMERICAN
  REALISTS WERE SCEPTICAL ABOUT THE LEGAL
  FORMATION, THEY BELIEVED THAT THEY COULD
  IMPROVE THE LEGAL SYSTEM BY ASSISTING
  LAWYERS AND STUDENTS UNDERSTAND HOW THE
  LAW REALLY WORKS IN PRACTICE.

  THE AMERICAN REALISTS BELIEVED THAT THE
  UNCERTAINTY OF LEGAL RULES SHOULD BE
  REPLACED BY A FORM OF POLICY SCIENCE THAT
  DREW INFORMALLY UPON THE WISDOM OF THE
  SOCIAL SCIENCES TO INFORM LEGAL JUDGMENT. (IN
  OTHER WORDS THEY WANTED TO STUDY HUMAN
  BEHAVIOUR AND ITS RELATION TO THE LAW)

- CLS   MEMBERS   BELIEVE  THAT  SOCIETY   IS
  CHARACTERISED BY INEQUALITY AND OPPRESSION
  AND THE LAW PLAYS A PART IN THIS BY
  PERPETUATING THIS AND PROMOTING THE STATUS
  QUO.

- CLS AIMED TO EXPOSE THE INJUSTICE AND
  EXPLOITATION THROUGH THE USE OF SOCIAL
  SCIENCE, NOT ONLY TO INFORM LEGAL JUDGMENT
  BUT RATHER TO DEVELOP A TRUE SCIENCE OF LAW
  AS A SOCIAL PHENOMENON.

- THROUGH NEO-MARXISM A MAJOR INFLUENCE ON
  CLS A SOCIAL EQUILLIBRIUM SEEKS TO BE ACHIEVED.
  (NEO-MARXISM PLACES A GREAT EMPHASIS ON THE
  ROLE OF SOCIAL ALIENATION IN SHAPING THE
  CONTORS OF SOCIAL LIFE & SEEKS TO ADOPT A
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  THEORY OF POLITICS THAT MAKES OVERCOMING
  ALIENATION  CENTRAL   TO   THE  POLITICAL
  OBJECTIVE).

CLS MODEL OF US SOCIETY?

- WHILE DWORKIN AND RAWLS SAW US SOCIETY AS
  RULED BY CONSENSUS, CLS SCHOLARS SAW
  CONFLICT AS THE DEFINING QUALITY NOT ONLY OF
  THE USA BUT OF ALL WESTERN DEMOCRACIES.

- THEY SAW CLASS DOMINATION AND SYSTEMATIC
  INEQUALITY IN THE US MASKED BY AN OFFICIAL
  DISCOURSE OF EQUALITY AND FREEDOM. (IN OTHER
  WORDS THE „LIE‟ COVERING REALITY)

- THEY IDENTIFIED THE HIERACHICAL NATURE OF THE
  US SOCIETY, WHICH CONTRADICTS THE TEXTS SUCH
  AS THE BILL OF RIGHTS AND ITS “EQUALITY”.

- CENTRAL TO THE CLS MOVEMENT IS THE CONCEPT
  OF ALIENATION, WHICH IS MORE CONCERNED WITH
  THE HIERACHICAL NATURE OF SOCIETY WITH
  DAMAGING CONSEQUENCES.

  (NOTE: MARX‟S CONCERN WITH ALIENATION
  REVOLVED AROUND THE ALIENATION OF WORKING-
  CLASS MEMBERS OF SOCIETY.)

- CLS SCHOLARS GABEL AND HARRIS ARGUE THAT IN
  CAPITALIST SOCIETIES THE SOURCE OF ALIENATION
  IS FOUND IN THE PREVALENCE OF HIERACHY AS THE
  DOMINANT FORM OF SOCIAL ORGANISATION.
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  ALIENATION IS THE INABILITY OF PEOPLE TO
  ACHIEVE GENUINE POWER AND FREEDOM THAT CAN
  ONLY COME FROM THE SUSTAINED EXPERIENCE
  OF AUTHENTIC AND EGALITARIAN (characterized
  by belief in equal political, economic, social, and civil
  rights for all people) SOCIAL CONNECTION.

  THE PREDOMINANCE OF HIERACHY IN SOCIETY,
  BOTH IN PRIVATE AND PUBLIC LIFE LEADS TO A
  PROFOUND LOSS OF THE SENSE OF SOCIAL
  CONNECTION. PEOPLE COME TO EXPERIENCE ONE
  ANOTHER AS POWERLESS AND PASSIVE IN RELATION
  TO THE HIERACHIES WITHIN WHICH THEY WORK
  AND LIVE.

  THIS COLLECTIVE POWERLESSNESS IS MANIFESTED
  IN THE SOCIAL ORDER AS INDIVIDUALS INTERNALISE
  THIS POWERLESSNESS IN THE FORMATION OF
  THEMSELVES.

  THEREFORE ALIENATION AND POWERLESSNESS
  BECOME A SELF-GENERATING SOURCE OF SOCIAL
  REPRESSION THAT LEADS TO THE REPRODUCTION OF
  CLASS, RACE AND SEX HIERACHIES FROM
  GENERATION TO GENERATION.

- CLS BELIEVE THAT A MODERN STATE SHOULD AT
  LEAST    PERSUADE   (PSEUDO-PERSUASION)     THE
  PEOPLE ITS GOVERNING THAT THE EXISTING ORDER
  IS BOTH JUST AND FAIR AND THAT THEY DESIRE IT.

THE ROLE OF LAW
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- TO PERPETUATE HIERACHY AND ALIENATION IN THE
  US SOCIETY BY LEGITIMATING THE UNJUST SOCIAL
  ORDER.

- THIS IS DONE THROUGH LEGAL RITUAL AND LEGAL
  REASONING. HOW IS THIS POSSIBLE? THE LAW
  ACCEPTS SOCIETY AS IT IS HOWEVER UNJUST. FOR
  EXAMPLE, LABOUR LAW ALLOWS WORKERS CERTAIN
  PROTECTIONS BUT NEVER CHALLENGES THE
  EXPLOITATIVE BASIS OF THE RELATION BETWEEN
  CAPITALIST AND WORKER.

- CLS ACCEPTS THAT LEGAL RIGHTS ARE CRUCIAL AS
  SYMBOLS OR SOCIAL ASPIRATIONS, HOWEVER, IN
  ACTUAL SOCIETY SUCH RIGHTS OR PROMISES ARE
  ONLY REALISED PARTIALLY.

- THEREFORE CLS ARE NOT OPPOSED TO LEGAL
  RIGHTS & HUMAN RIGHTS (SEE FREEMSN P 249 OF
  HANDBOOK) BUT FORMAL RIGHTS IN THEMSELVES
  DO NOT GUARANTEE FREEDOM FROM HUNGER,
  SICKNESS, IGNORANCE OR ANY OTHER SOCIAL ILLS.
  THE STRUGGLE FOR RIGHTS SHOULD NEVER BE
  ALLOWED TO DISPLACE POLITICAL AND ECONOMIC
  STRUGGLES OF PEOPLE SEEKING FREEDOM FROM
  OPPRESSION.

LEGAL EDUCATION

- THE EDUCATION OF LAW STUDENTS AND THE
  MANNER IN WHICH THEY ARE INTERVIEWED FOR
  JOBS SENDS A MESSAGE THAT LAW SCHOOLS AND
  LEGAL FIRMS PRODUCE A BODY OF LEGAL
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  PROFESSIONALS WHO OBEY AND REPRODUCE THE
  HIERACHIES OF THEIR PROFESSION AND THE UNJUST
  SOCIETY WHICH THEY SERVICE. (READ P 252
  HANDBOOK)

- THE CLS CRITIQUE OF LAW:

- AN INTELLECTUAL RESPONSE TOWARDS THE
  DOMINANT TRADITIONS OF JURISPRUDENCE. CLS
  SCHOLARS SEEK TO EXPOSE INEQUALITIES AND
  EXPLOITATION INHERENT IN THE US LEGAL SYSTEM

- PRACTICIONERS WORKING IN THE SPIRIT OF CLS
  IDEALS SHOULD ADOPT POWER-ORIENTED AS
  OPPOSED TO A RIGHTS-ORIENTED APPROACH TO
  LEGAL PRACTICE. THE RIGHTS APPROACH DOES NOT
  ADDRESS A PRECONDITION FOR BUILDING A
  SUSTAINED   POLITICAL   MOVEMENT.   FURTHER,
  RIGHTS-CONSCIOUSNESS TENDS TO REINFORCE THE
  ALIENATION AND POWERLESSNESS.

- POWER-ORIENTATED LEGAL PRACTICE SEEKS TO
  DEVELOP RELATIONSHIPS OF GENUINE EQUALITY
  AND MUTUAL RESPECT WITH THE CLIENT. THE
  LAWYER SHOULD CONDUCT HERSELF/HIMSELF IN A
  MANNER THAT DEMISTIFIES THE SYMBOLIC
  AUTHORITY OF THE STATE. THE LAWYER SHOULD
  ALWSY SEEK TO RESHAPE THE WAY CONFLICTS ARE
  REPRESENTED IN LAW, LIMITING THE CHARACTER OF
  LEGAL IDEOLOGY AND BRINGING OUT THE TRUE
  SOCIO-ECONOMIC AND POLITICAL FOUNDATIONS OF
  A LEGAL DISPUTES.
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RELEVANCE OF CLS TO SOUTH AFRICA

- LIMITATIONS OF THE RIGHTS-ORIENTATED LEGAL
  PROCESS ALERTS SA TO BE TOO CAREFUL IN
  RELYING   ON   THE   PROVISIONS   IN   THE
  CONSTITUTION.

- WITH REGARDS TO LEGAL EDUCATION C.R.M.
  DLAMINI COMMENTS IN THE SAME SPIRIT AS THAT
  OF CLS THAT THERE ARE RACIAL HIERACHIES IN SA
  THAT HAVE BEEN CONFIRMED RATHER THAN
  CHALLENGED BY SOUTH AFRICAN LAW SCHOOLS.
  LAW IS TAUGHT IN THE ABSTRACT SEPARATED FROM
  ITS SOCIAL CONTEXT. (READ P 255)

- WITH REGARD TO A POWER-ORIENTATED APPROACH
  TO LEGAL PRACTICE, IT HAS A LIMITED IMPACT IN
  SA, HOWEVER, NELSON MANDELA‟S LEGAL DEFENCES
  IN HIS TRIAL IN 1962 ON CHARGES OF INCITING
  AFRICAN WORKERS TO STRIKE SHARE THE
  STRATEGIES ADOPTED BY THE CLS. (READ P 256)

  HOW IS THIS RELATED TO THE POWER-ORIENTATED
  APPROACH TO LEGAL PRACTICE?

  IT WAS A HIGH PROFILE CASE THAT SHOWED HOW
  THE LEGAL SYSTEM WAS TURNED AGAINST ITSELF BY
  EXPOSING ITS INJUSTICE.

  IT WAS A CASE THAT EXPOSED THE INJUSTICES OF A
  LEGAL-SYSTEM TO CHALLENGE ITS LEGITIMACY IN
  COMPARISON WITH THE APARTHEID LEGAL ORDER.

				
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Description: CRITICAL LEGAL STUDIES