Critical Legal Studies
Law is a traditional instrument. This traditionality is a two-folded aspect: (i) law has been a very influential phenomenon in human society for a long time, (ii) and the law is developed with the help of conventional beliefs and traditional values. Courts follow the previous decisions given by other courts in a particular subject, legislators follow the reasoning of the previous legislators, and scholars follow what previous scholars thought and argued regarding both academic and practical areas of law. In this regard, the law might be criticized for being clunky in terms of being open to reformations and following the change in society.
In 1977, a group of legal scholars, who criticize the strict traditionality in law established the Conference on the Critical Legal Studies (“CLS”). From 1977 until 1992, these scholars, with meetings and conferences, explained how the law is not responding to the social and political changes occurring in the modern world. They argued that law was favouring the ones holding power in the society, and accordingly, exacerbating the inequality in the society and forging the social hierarchy.
Many scholars who identified with the critical legal studies movement have followed methods in parallel with post-modernism; they rejected to apply old and systemized theories to their works. In other words, members of this movement were claiming that the traditionality in law does not help solve the issues of the modern society, therefore, a new and post-modernist approach should be adopted to reach implementable solutions.
Some scholars in this movement have applied Marxist theories in their works to show the influence of economic power and those holding this power to the law and its practice.
The Critical Legal Studies movement had expanded to such a great extent that it is difficult to define a common goal targeted by its all members. However, the following may give an outline of the most basic arguments of the CLS scholars:
1 – Demonstrating the social, historical, political, economic and psychological effects and results of legal decisions,
2 – Bringing the law and legal context, by penetrating its thick cloak, to a level where laymen can understand and interpret the law,
3 – Showing how malleable legal doctrine and legal principles may be, and how people holding the authority may use these principles to reach results in their own favour.
It goes without saying that the CLS scholars’ arguments are very controversial, and sometimes these arguments move beyond law and relate to politics. There is no need to state that the law and politics are influencing each other, however, interpreting the law on political basis may lead to imprecise results. Many of the legal principles have developed in parallel with ethics, moral rules, social and traditional values. It might be true that politics might have affected the development path of the law throughout history; nevertheless, in my opinion, human psychology and social beliefs have been the most influential factor on the law. Even if we adopt the perspective of the CLS movement, we should be aware that, before politics, it is our beliefs and traditions that hinder the law’s capability of responding to the shift in society.
In today’s world, social values are shifting at such a fast pace that the law cannot respond to it well. In the 70s and 80s, as the CLS scholars argued, it might be the politics that turned the law into a clunky instrument. Today, it is not politics, it is not politicians, it is not the people holding authority and power in the society. Today, it is the human itself that renders law out-dated every day.