Reconstructing Critical Legal Studies

37 Pages Posted: 7 Aug 2023 Last revised: 19 Apr 2024

Date Written: August 4, 2023

Abstract

It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random—in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law—parameters we should reclaim critical legal studies for helping establish—apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law and political economy movement. The law and political economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it better to identify its core principles. Had critical legal studies never existed, it would have to be invented today.

Suggested Citation

Moyn, Samuel, Reconstructing Critical Legal Studies (August 4, 2023). Yale Law Journal, Vol. 134, Available at SSRN: https://ssrn.com/abstract=4531492 or http://dx.doi.org/10.2139/ssrn.4531492

Samuel Moyn (Contact Author)

Yale University ( email )

CT 06511
United States

HOME PAGE: http://campuspress.yale.edu/samuelmoyn

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