A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, pp. 267-278, D. Patterson, ed., 2010
13 Pages Posted: 24 Sep 2011 Last revised: 6 Dec 2011
Date Written: 2010
This encyclopedia entry reviews the contributions of the Critical Legal Studies movement to the philosophy of law. Critical Legal Studies is most often associated with a controversial claim that all legal doctrine is necessarily indeterminate. This paper reveals that critical scholars have actually propounded two distinct and narrower claims. In the area of analytic jurisprudence, critical legal scholars have criticized liberal rights theory by stressing the economic and social interdependence of legal persons. They therefore argue that the liberal ideals of freedom to act without harming others, and freedom to transact with consenting others, are self-defeating. This “indeterminacy thesis” is a claim that classical liberalism’s aspiration to define spheres of liberty through a regime of rights is not formally realizable. The second claim concerns instrumentalist policy analysis. Critical legal scholars claim that legal standards requiring calculation of the effects of policies on the interests of actors necessarily involve the exercise of normative discretion. Such discretion is required in identifying and aggregating interests, ascribing causal responsibility, and measuring harm. Taken together, these two distinct claims ascribe indeterminacy to a great deal of legal doctrine, but they do not amount to categorical claim that all legal rules are necessarily indeterminate. There is not one “indeterminacy thesis,” but two.
Keywords: jurisprudence, Critical Legal Studies, indeterminacy thesis, rights theory, policy analysis
Suggested Citation: Suggested Citation
Binder, Guyora, Critical Legal Studies (2010). A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, pp. 267-278, D. Patterson, ed., 2010 ; Buffalo Legal Studies Research Paper No. 2012-023. Available at SSRN: https://ssrn.com/abstract=1932927