Critical Legal Studies first developed in the USA in the latter half of the 1970s. Drawing on the political inspiration of the contemporary New Left, it was an intellectual movement committed to radicalizing legal theory by bringing together US legal realism and modern European social theory. In so doing, it sought to provide a fundamental critique of the nature and place of law in modern capitalist society.
In its first phase, its main target was the liberal positivist theories of law that dominate Anglo-American jurisprudence. Such theories inform both the organization of the traditional legal curriculum and the nature of legal practice. By contrast, Critical Legal Studies saw law as based upon deeply contradictory premises, so that the orthodox positivist claim that law could be in principle rational and coherent was rejected in favour of the ‘indeterminacy thesis’. Legal decisions were in truth a matter not of logical deduction but of choice. They could always go one way or the other. Ultimately, therefore, it was an open political decision made by a judge which determined a legal conclusion. The idea of the ‘rule of law’ operating above politics was rejected, but regarded as important in terms of the political legitimation function it served in Western societies.
While the name ‘Critical Legal Studies’ has a US provenance, a number of different critical legal projects can be identified. These projects reflect the broader character of the national traditions of which they are a part. European approaches, particularly the German and the British, reveal a more sustained engagement with modern and postmodern social theory. However, as a result of problems in the original project, Critical Legal Studies has entered into a second phase in the USA in which there is an increasing interest in social theory. The result has been a convergence of European and US concerns, but around a highly fragmented group of modern and postmodern social theories. Nietzsche, Foucault, Derrida and Habermas have been introduced into legal theory while Marx and Weber, the original theoretical mainstays of a critical approach to law, have been sidelined. There is a danger in this that Critical Legal Studies will become little more than a group of theorists talking among themselves. While the original US critique of legal doctrine may have run out of steam for want of sufficient theoretical sophistication, it is important not to lose sight of its direct focus on law and legal forms. It is arguable that the recent ‘turn to theory’ must validate itself in terms of the contribution it is able to make to a critical understanding of law and its practices; also that an important, as yet unaddressed, question concerns the relationship between postmodern forms of criticism and sociological analyses of the development of law.
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