I am so wound up for my upcoming exams. Law school just does not know when to give us a break!

If you're wondering where I have been hiding, I've been busy with study. For the past week, I have been working on this; my jurisprudential essay on critical legal studies. If you've never heard of it, I don't blame you. It is, after all, one of the more obscure branches of jurisprudential discourse. I suppose now you will understand why law students walk around with that blank look on their faces, because their thoughts are occupied in verbose theories that could have been better served in simple terms. 

I hate writing essays, I think the footnoting here is a bit faulty since I couldn't transfer the whole thing properly from word.... but meh. It's not like you're going to analyse my footnotes, are you?  

Here's a sneak peak at what goes on in our heads...

I           INTRODUCTION

"Poor is the man whose pleasures depend on the permission of another."[1]

Mimicking Foucault, this punch line from Madonna's 'Justify My Love', captures the rebellious drive behind the initial critical legal studies (CLS) movement. It defies legal hierarchy and challenges accepted standards in our society imposed by an elite state capture. Kennedy's 'Polemic' urges resistance against the perpetuation of the hierarchy and the exploitation of the legal community as ideological instruments.[2]

However, this drive has been tempered by a variety of interpretations of CLS offered by the crits themselves that even Schlegel struggles to understand what the 'occluded battle' is about save one on the definition of CLS.[3] Whilst Gabel advocated a constructive enterprise, Kennedy maintained a radical stance in fighting legal liberalism.[4] This splintering has, in part, ironically been caused by its own indeterminacy and gave birth to alternate discourses like Critical Race Theory (CRT) and Feminist Legal Theory (FLT). I opine that CLS is still relevant today, albeit in a different light, despite its turbulence through the 1980s. Its relevance despite its changes is to be illustrated in three issues.

II         THE STRUGGLE WITH MARXISM

            By advocating a normative position of radical egalitarianism, CLS has its roots in Marxism. CLS remains a legitimate movement because of its essentially Marxist criticism of illegitimate social power.[5] However, the crits' scorn of 'vulgar' Marxism; its call for revolution and the crude superstructure of class distinctions, leaves CLS in an undesired position – that of the immobilised. It cannot attack liberal theories, being a liberal theory in itself and it fails to strongly challenge conservative ones.[6] In my view, it desires to champion the oppressed but constrains itself from revolutionary tendencies, favouring 'baby steps' instead.[7] This binds CLS because although the legal community engages in the indeterminacy debate and empathises with the oppressed, it is still merely a discourse which causes but little change. Indeed, there can be no change unless CLS fully embraces its Marxist roots.

            This is, of course, an oversimplified view. CLS has distinct intricacies to Marxism. Deconstruction of the legal hierarchy may seem to lie in the heart of CLS, but that has been dismissed by a number of theorists, notably Kelman.[8] It is true that Marxism and CLS share common grounds but the motivation behind CLS differs from Marxism. I find CLS to be more of a reaction to the incoherence and indeterminism of liberal and conservative legal theories. It provides the legal community with the tools necessary for self-critique in order to better the system through gradual improvement - hence, the denunciation of revolution.[9]  

            However, indeterminacy would be ineffective in changing a legal system that is so established. Kennedy's calls to "resist!" from being manipulated by the perpetuation of the hierarchy calls for more than an exercise of self-criticism. Indeed, CLS' adoption of Gramsci's notion of hegemony encourages the movement to play a more proactive role in instituting change.[10] By recognising that the law provides "rights" to buttress social objection, CLS recognises the manipulation of the hierarchy. Although I appreciate the subtle nuances that set CLS apart from Marxism, I also consider the predicament that the movement has put itself in. In distancing itself from Marxism, it distances itself from the very essentials that fuelled its political drive in the first place – its desire to overthrow the legal hierarchy. Due to this struggle, it has been increasingly harder to locate the strength in the movement needed to affect change and therefore is widely seen as useful only as an educative tool.

III        AN ALTERNATE SYSTEM AND CLS AS AN EDUCATIVE TOOL

            Crits has often been chided for their inability to produce an alternate system in place of what is already in existence. Even Kennedy claimed that in the face of Gramsci's hegemony, "the left should not pretend that it has a solution."[11] A justification may be found in Fischl's research scientist analogy.[12] In this analogy, research scientists wrote a report on the side effects of a widely-used drug. They were then asked to establish that there is some escape from the side effects in order to legitimise their report despite their meaningful criticisms of the drug. He argues that the merits of the report were sidestepped in search of that escape, which goes beyond the point.

In a similar way, CLS is that report on the "side effects" of the current legal system; these side effects being the perpetuation of the hierarchy. Instead of appreciating the merits that could eventuate from the critique, CLS has been asked to produce an alternative escape from these "side effects". He argues that an alternative system that would provide an escape from our current system cannot even be contemplated without an examination of our current legal system itself. He states that:[13]  

The point of critical scholarship is that the law is far better understood as a significant aspect of the complex interplay between our culture and our structures of thought than it is as something that has some sort of room of its own. We can't step outside of "law" and look at it; we are looking at us.

            This justification further emphasises the point that CLS is, more often than not, a legal scholarship. Indeed, the core of CLS is that "legal scholarship can be a kind of transformative political action."[14] Notably, this scholarship renders it an extraordinarily useful teaching tool in order to enhance critical thinking. For example, the cases of Powell v Taylor[15] and Elston v Paal[16] continue to facilitate the indeterminacy debate. The availability of legitimate legal arguments on both sides will eventually lead to a determination more motivated by the perpetuation of the hierarchy than real justice.

These cases also highlight the manipulation of language in order to secure that perpetuation. Alan Hutchinson stated that political reform must necessarily be a linguistic enterprise because we live in language and expressions are conveyed in language.[17] I agree with him, but to an extent. Although it is true that in legal realism, linguistic indeterminacy is also a basis for structural indeterminacy, I find that too much focus on language itself detracts from CLS' impetus as a catalyst of change.[18]

Conversely, although it is tempting for CLS to settle into this general role, it is also this complacency which endangers the drive behind CLS' motion to induce political action, illustrating that the relevance of CLS is society is not always beneficial to the progress of the movement. Nevertheless, CLS was and always will continue to be highly relevant in legal study.

IV        CLS' REVIVAL THROUGH POP CULTURE AND ITS RECONCILIATION WITH CRITICAL RACE THEORY AND FEMINIST LEGAL THEORY

CLS reasons that the superstructure has evolved from class to identity politics. In 'Sexy Dressing Etc.', Kennedy utilises a hybrid wherein he combined Foucault's view on power relations conditioning social relations with Hale's view that all economic relationships are structured by law. This results in an analysis of the intersection of disciplinary with market power. Rules, when seen as permission rather than prohibition, regulate society inconspicuously. However, this view necessarily presupposes that society is neutral and hence, glosses over the specific needs of CRT and FLT, since it subscribes to legal realism.

The reason for the splintering of CLS is that it does not offer the experiential dimension essential to the disempowered.[19]  To quote Sartre in 'Being and Nothingness', there is lived experience and nothing.[20] Hence, CRT and FLT emerged from CLS' lack of representation when these discourses should be natural allies. In addition, there is a wide methodological divide. The CLS view that rights exist merely as a myth to pacify the oppressed are criticised by both CRT and FLT because rights must be validated in order to legitimise both feminist and critical race studies.[21]

Nevertheless, CLS is in a process of shift as it begins to recognise that its methods were asserted and maintained by virtue of power rather than truth, which is humbling for a movement dedicated to erasing hierarchies.[22] Indeed, in 'Sexy Dressing Etc.', Kennedy attempts to bridge the divide between the discourses by conceding that experiences in oppression are varied and contingent, instead of being analogous to the entire cross-section of society.[23]

CLS is only familiar but to a select few; law students, professors and those within the legal circles but certainly not the general public. However, Kennedy appears to attempt a revitalising of CLS with Sexy Dressing, wherein CLS is seen in the context of popular culture, as opposed to politics. It would seem like he is appealing to the minds of modern youth instead of his peers from the post-Vietnam 1960s mentality. This is evident from the words on the inside flap of Sexy Dressing:

[Kennedy's] aim is to wed rebelliousness, irony and irrationalism of cultural modernism and postmodernism to the earnestness of political correctness. The result is a refreshing alternative both to the stalemate of mainstream politics and the self-isolation of the radical fringe.

This represents a shift in Kennedy's radical position from 'Polemic' and is implicitly, an appeal to a more mainstream audience. It seems he would agree that the law and legal institutions are inseparable from the complex social and cultural narratives that give them meaning.[24] In my view, the combination of popular culture and a more temperate CLS theory provides an irresistible attraction to youthful modern sophisticates. CLS may well nurture intellectuals who 'await the twenty-first century night when under cover of darkness they will crawl out of the belly of the beast"[25] with this retooling from popular culture and further harmonisation with CRT and FLT. It would seem that Kennedy's quieter strategy to 'undermine and entice'[26] has found its niche in popular culture. Despite being less controversial, this strategy is no less effective than his previous radical stance.  

V         CONCLUSION

CLS may have lost its strength due to its own identity crisis with Marxism as well as with the birth of CRT and FLT. However, the movement is far from dead. So long as it recognises its Marxist roots and expresses itself through the interpretive vehicle mainstream audiences can identify with, I am of the view that CLS will be able to regain its momentum.

During this shift, however, it is still very relevant as an educative tool to enrich legal education.  It is essential to realise that in order to realise the changes needed in society's daily interplay with politics and the legal hierarchy, those who are familiar with the concepts of CLS are to play a more proactive role than that of a mere bystander:[27] 

For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that gives it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.

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