Trends in American Critical Legal Thought
University of British Columbia Law Review, Vol. 25, p. 105, 1991
24 Pages Posted: 22 Nov 2011
Date Written: November 21, 2011
Perhaps the central theme of Critical Legal Studies has been that law is political. It is an oddity of this writing that it has excluded the political insights of other critical approaches to law. The Critical Legal Studies (CLS) movement has failed to incorporate "outsider jurisprudence"- particularly that produced by scholars of colour and white feminists. The incorporation may be underway ironically at a time when the influence of CLS itself may be waning. David Kairy (ed.), The Politics of Law: A Progressive Critique. Revised edition, (New York: Pantheon Books, 1990) attempts to reveal "a progressive critique of law with four basic elements." First, the book rejects the idealized model of the legal process and the notion that there exists a mode of reasoning which is distinctively legal. Second, the hook affirms the fundamental importance of democracy and popular decision-making. Third, the authors reject the characterization of law and state as neutral objective, and independent of economic, political, and cultural forces. Fourth, the authors identify the centrality law's legitimation function in shielding dominant social relations from political and ideological challenge. The book also introduces interesting critical approaches to new areas of substantive law, notably the largely untouched doctrines of commercial law. For the most part, the book succeeds, but it sets for itself an ambitious agenda which it ultimately cannot meet.
I situate the ten essays within current trends in American critical legal thought. I argue that American critical approaches to law have gone in several interesting new directions and that this represents both the legacy of CLS and the promise of a new critical diversity.
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