Critics to the Critical Legal Studies

______________________________________________________________________________

Introduction

[L]aw is the activity of licensed persons, the judges, rather than a body of concepts (rules, p
rinciples, whatever) . . . . The law is not a thing they discover; it is the name of their activity.
They do not act in accordance with something called “law”—they just act as best they can.

The rapid growth of progressive ideas into the conscience of most of the Western countries,
specifically in the field of social sciences, have contributed to the rise of many of the loudest and
most belligerent debates of our era. The dichotomy between Left and Right, even though it has
always been present since the begging of the Cold War, has never been so palpable. Abortion,
affirmative actions, censorship, racism, to name a few, are just some of the topics that
conservatives and liberals have discerned until today fiercely. Conservatives are pictured as
representative of the Right, meanwhile, Liberals have been so for the Left. Now, one of the first
areas of the social sciences to be vastly influenced by the left has been the legal area; one of the
main approaches coming from this trend is the Critical Legal Studies and Legal Realism.
Given that, first: there’s an overwhelming number of professors, assistants and members of
academic organizations in the United States that lean towards the left; and on the other hand, that
this inclination towards the left on the part of the most prestigious universities (coming not only
from the United States but from all the doctrinal axes of Europe) exerts a great influence towards
the university and academic institutions of the rest of the world , the University of the Andes is not
the exception; and finally, that there’s an accelerated radicalization of Colombia to the left; it is to
be expected that the individuals whose ideas oppose or reject the axioms (mainly conservatives)
and aims of all these ideas that arise from the bosom of the left see with concern how all the great
academic, state and cultural institutions are subordinated to a single economic political
perspective. Thus, for conservatives, Skepticism becomes a rhetorical tool that allows them to face
these ideas through argumentation
Now, in along with the debate of such controversial topics as censorship of hate speech,
abortion, and affirmative actions, to name a few, some questions arise such as: (i) what are the
flaws that may exist in the leftist approach to the law? (ii) What happens to individual rights and
freedoms once progressive or liberal positions have been taken on these issues?. Then, it is the
purpose of this review to find and analyze what has been written that could help to answer this
question from a critical perspective and moreover to hopefully develop a well-supported thesis
that advocates in favor of the conservative perspective.

Potential flaws in the liberal approach to the law

To explain what has the literature said about the flaws in the liberal position of the law are it is
necessary to clarify what is referred to when talking about this approach. the legal realism defined
by Anthony D’Amato (2009) is the “theory that judges may decide cases by taking into account
factors other than preexisting law.”. For Meyerson (1991) “The Critical Legal Studies aims to
debunk orthodox legal theory by substituting for its cheering, universalistic vision of legal doctrine
a more pessimistic picture of contradictory and shifting foundations”. So, Legal Realism theory is
at the service of the CLS to the extent that it is used as a tool to justify how the law is a service in
a "status quo". that is to say, these factors outside the preexisting law are what reinforce and
perpetuate this hierarchy. These factors can be prejudices such as sexism, racism, homophobia, or
all of them depending on which marginal group you want to advocate. then, without going
superfluously into the vast amount of theory about legal realism and CLS, it is, therefore, necessary
to clarify that speaking of the liberal approximation of the law, we will be talking about the
previous two theories without prejudice to the theoretical material that is being ignored in this text.
In the words of Price (1989):
The CLS movement has borrowed freely from other schools of thought in law, philosophy, and
literature. A few of the more exotic influences on CLS are the philosopher-sociologists of the
"FrankfurtSchool' and the expositors of structuralism and deconstruction26in literary theory. Just
as the work of most practicing lawyers and mainstream legal scholars can be seen in part as
continuing the project of Locke and Blackstone, the work of CLS adherents can be seen as
continuing the project of a leftist counter-tradition in political theory and epistemology. The
principal influence on CLS, however, is generally understood to be the American Legal Realist
movement.

CLS
contradictions within the theory.
Meyerson (1991) says that there are contradictions in the CLS theory. One of them, for example,
regarding its approach to the criminal justice system. this refers to its deterministic element that
could allow individuals to obtain more beneficial judicial outcomes due to “pre-existing
conditions” that allegedly force them to act in the first place against their free will.
CLS specializes in the excavation of hidden contradictions, but sometimes the contradictions are
more apparent than real. Mark Kelman, for instance, argues that most issues in criminal law are
decided on the basis that the criminal conduct is undetermined. But, he claims, sometimes, and
inexplicably at odds with this general assumption, deterministic excuses like duress, insanity, and
provocation are accommodated by the law. Why Kelman asks, should we look at background
determining causes in a few cases, while ignoring the 'bleak social background' which is the cause
of almost all crime? There is no good reason, is his answer: there is no rational basis for the
traditional limitations on the deployment of deterministic assumptions in the criminal law.
(Meyerson. 1991)
To what Meyerson she finds the contradiction point:
He claims that the criminal law operates erratically, now applying a deterministic model, now not;
sometimes looking for the causal antecedents of conduct, sometimes ignoring them. But this
assumes that all deterministic histories excuse, and that it is only because the criminal law refuses
always to investigate the antecedents of conduct that it is able sometimes to discern responsibility.
But is this so?. (Meyerson. 1991).
Later, she argues that even when parallels can be drawn where two behaviors are translated into
the same result but with different causes, such as the thief and the kleptomano or the alcoholic and
the social drinker. and following the deterministic logic, she recognizes that there are causes that
can mitigate or extinguish responsibility. however, she points out that it is not possible to draw a
coherent judicial model in which this type of distinctions can be made uniformly. since, as she
points out, although there are scenarios where the cause diminishes responsibility in a certain way,
the opposition between the will and the external element (the cause) makes it difficult to draw a
line that determines when it truly exempts itself from responsibility.

Imposed community
 To Price (1989) the roots of Liberalism that limit forced relations also allow willful relations.
To him, the rule of Law, by making Legal Norms in general (and customary), urges individuals to
go into truly voluntary relations without dreading unforeseen Legal outcomes. individual rights
can maintain a strategic distance from unwelcome interruptions, similarly, give the security that
urges individuals to go into relations with others. For him. “As far as voluntary relations are
concerned, such a society would in all likelihood prove relentlessly distant and stagnant”
Price(1989). Consequently, he poses the question of whether an imposed community is a form of
community at all?. He is referring, mainly to Kennedy (1976). He quotes him:
“The "freedom" of individualism is negative, alienated, and arbitrary. . . . We can achieve real
freedom only collectively, through group self-determination. We are simply too weak to realize
ourselves in isolation. True, collective self-determination, short of utopia, implies the use of force
against the individual. But we experience and accept the use of physical and psychic coercion
every day, in family life, education, and culture.”(Kennedy, 1976, p. 1774)
In this way, according to Price (1989), Kennedy associates freedom with community, and as
Community with Imposed Community. Somewhere else in Kennedy’s book, he makes reference
to the conceivable protest that it might be drivel to talk about constraining somebody to act
altruistically. That makes sense says Price, genuine community or genuine altruism implies
voluntary sacrifice. Consequently, Under a regime of imposed community, the person who takes
part in sharing and sacrifice likely could be carrying on just a greedy desire to maintain a strategic
distance from legal sanctions. That barely fits the standard definition of “Altruism”, notes Price
sarcastically. To what Kennedy simply answers:
One idea of justice is the organization of society so that the outcomes of the interaction are
equivalent to those that would occur if everyone behaved altruistically. I take this as a given for
the rest of the discussion. (Kennedy, 1976)
Moreover, Price notes that on the off chance that an individual takes part in Sharing and
Sacrifice simply because the Law orders it, at that point the individual isn't an Altruist however is
rather the Machiavellian “bad man" that Kennedy criticizes for being worried about the Law just
as a methods or a deterrent to the achievement of his standoffish closures (Kennedy,1976, p.1773)
. Price then closes: “the form of community urged by the CLS writers is the antithesis of true
community.” (1989)
Totalitarian sights of the CLS
One of the greatest concerns for the conservatives is a potential metamorphosis of socialism into
totalitarianism. While it would be exhausting to draw a connection between the CLS and absolute
totalitarianism, it’s interesting to play with the idea. Both Price and Johnson (1984), both authors
take this idea and interact with it. examples of this are the imposition of the community, and the
superposition of the social consciousness over the individual, and the persistent complaint of the
CLS of oppressed oppressive duality. One of the problems that both authors recognize in the theory
is their potential to use tools that have used totalitarian regimes to achieve their ends. It could even
be said that legal critics are willing to use whatever means necessary to impose the noble cause of
liberating the oppressed, even if that means oppressing the rest.
Much of the CLS account would have the effect of removing vital barriers to government
oppression. I do not know of any CLS author who would regard Stalinist totalitarianism as a
desirable form of government, but the rejection of individual rights and the rejection of any
distinction between public and private concerns would nonetheless contribute powerfully, if
unintentionally, toward that outcome. To the extent that CLS authors recognize this possibility,
they alternately imply either that government officials can be trusted to act benevolently or that
the liberal notion of liberty should be subordinated to other ends. (Price. 1989).

CLS Meaninglessness
Johnson’s “Do You Sincerely Want to Be Radical?” Is a quite interesting article, mainly because
compared to the previous articles, Johnson is less subtle in his criticism against the CLS. His first
criticism comes to the impossibility of the CLS to create an alternative or a solution that satisfies
the problems that it believes to point. Johnson compares those academics to adolescents who are
asked to question everything around them without proposing something in return. Johnson
criticizes the utopian desire of the radical teachers of the law to be, according to him, the
disconnected from the real world. He also discusses some of the Marxists roots of the Critical
Legal scholarship. This characteristic, which Johnson considers referring to Kennedy (1979) as
one of the "fathers" of legal critical thinking, condemns in a certain way the CLS to a pessimism
trapped in its own philosophy. “This "Critical" side of Marxism is useful for attacking "capitalism"
or "liberalism" (although it could be equally useful in undermining Marxism itself),36 and as such,
it can be detached from the Marxist program of party dictatorship.”
(Johnson, 1984)
He then adds:
The second major problem with a purely negative use of Marxism is that criticism itself is
meaningless without a standard of reference, whether express or implied. Critical scholars who
describe "capitalist" society as oppressive or hierarchical are like New Yorkers who speak of
Cleveland as being in the "West." Contemporary capitalist society may be oppressive and
hierarchical judged by some ideal standard and yet have less oppression and hierarchy than most
or even all other societies that have ever existed. Critical legal writing systematically evades the
question, "Compared to what?”. (Johnson, 1984)

Legal Realism. Explains nothing

D’Amato (2009) takes on Legal realism:
This essay has shown that legal realism was founded on a mistake, one that can be corrected by
reinterpreting Holmes's prediction theory. All the implications of that mistake can, and should, be
reversed. There is deep psychological wisdom in the classic view that law has an independent
existence outside the courtroom. Courts need to respect the law by trying, with each decision, to
give further specificity and concreteness to the noble conception. (D’Amato, 2009)
D’amato argues that American legal realism as derived from Oliver Wendell Holmes's
prediction theory of law was misinterpreted, and that “a deeper examination of law-as-prediction
might help to reduce the pathology of judicial lawmaking that has been the unfortunate
consequence of legal realism”. He thinks the judge who thinks that it's better to invent new law
instead of restoring the old is stealthily undermining public trust in the Rule of law and narrowing
the ambit of individual liberties. He, the judge would be acting as a legislator, not a judge, the
worst sort of legislator, he says; who sanctions new law and holds it against honest individuals
who were obediently conforming to the “old law”. He thinks also, that if the judge likewise trusts
that he personifies the law, he is stating that if the people need to comprehend the law they should
examine him. Thus, Law, in the eyes of the realist judge, is naturally becomes indecipherable.

Conclusion
This investigation allows us to conclude that: (i) that there is theoretical material that counteracts
the hypothesis of the CLS. (ii) And that these works have been the majority contemporaneous with
the emergence of this academic current. (iii)Also that the work found can summarize that there are
problems that give rise to criticism of the CLS and legal realism among these are:
1. contradictions in the critical-legal perspective of criminal justice. and within this a great
uncertainty as to when and when not to apply the deterministic element. also, that we can say that
there is no coherence in a deterministic model, which makes its functionality in the justice system
impossible.
2 that, referring to Kennedy, the CLs fall back into a fallacy by imposing a model of community
and forced altruism that ultimately ends up developing the selfish individual who wishes to avoid.
3 that added to the previous element the CLS can be approaching dangerously to the
totalitarianism.
4 that one of the great problems of the legal critical is that it does not offer any solution to the
problems that it believes to find. 5 that the legal realism understood according to Holmes, ends up
translating the figure of the law and personifying it in the judge, thus making impossible the task
of analyzing it.
(iv) moreover, that many of these failures affect in some way the individual rights and freedoms.
among them the freedom of association, possibly legal security, and other foundations of classical
liberal theory, notions that underlie many of the conservative premises. And finally (v) for the
above reasons, this body of research can be of great help for a thesis that seeks as well as
counterargument the premises of the left, as contributing to the recent critical literature of the CLS
Bibliography

Análisis: ¿Giro a la izquierda en 2022?. (2019). Retrieved from

https://uniandes.edu.co/es/noticias/desarrollo-regional/giro-a-la-izquierda-politica-en-2022
Bossetta, M., & Husted, E. (2019). Introduction: Populism In The 21st Century: Critical
Reflections On A Global Phenomenon. Retrieved from
https://research.cbs.dk/en/publications/introduction-populism-in-the-21st-century-critical-
reflections-on
D'Amato, A. (1978). The limits of legal realism. The Yale Law Journal, 87(3), 468-513.
D'Amato, A. (2009). Legal Realism Explains Nothing. Washington University Jurisprudence
Review, 1, 1-20.
David, A. (1989). Taking rights cynically: A review of critical legal studies. The Cambridge Law
Journal, 48(2), 271-301.
Holmes, O. (2003). The Path of the Law. Malden, MA [etc.]: Blackwell.
Johnson, P. (1984). Do you sincerely want to be radical? Stanford Law Review, 36(1-2), 247-291.
KENNEDY, D. (1976). Form and substance in private law adjudication. Harvard Law
Review, 89(8), 1685-1778.
Kennedy, D. (1979). The structure of blackstone's commentaries. Buffalo Law Review, 28(2),
205-382.
Meyerson, D. (1991). Fundamental contradictions in critical legal studies. Oxford Journal of
Legal Studies, 11(3), 439-451.
RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE
21, 225 (1990) [hereinafter POSNER, THE PROBLEMS OF
JURISPRUDENCE].
Gallup, I. (2019). Americans Say Reagan Is the Greatest U.S. President.
Retrieved from https://news.gallup.com/poll/146183/americans-say-reagan-
greatest-president.aspx