Beyond Criticism

Abstract:     
During the 1980’s, Critical Legal Studies was frequently criticized for offering no policy prescriptions. This essay explained critical scholars’ reluctance to propose policy as a reflection of their epistemological and political critiques of instrumentalist policy analysis. Because critical scholars saw both causal relationships and interests as highly contingent on normative assumptions, they were skeptical of claims that well-intentioned law reforms would benefit the interests of the poor and the powerless. Valuing democratic participation, critical legal scholars were also reluctant to define the interests of the powerless for them. The essay proceeded to argue that critical legal scholars should see instrumentalism as not just a set of ideas, but a pervasive and resilient culture sustained by mutually reinforcing institutions, identities and values. It concluded that critical scholars could offer useful proposals aimed at disrupting instrumental culture and creating space for democratic self-definition.

Number of Pages in PDF File: 29

Keywords: critical legal studies, jurisprudence, indeterminacy, instrumentalism

Accepted Paper Series