A. Critical Legal Realism-was a movement in legal thought in the 1970s and 80s committed to shaping society based on a vision of human

personality devoid of the hidden interests and class domination that was argued to be behind existing legal institutions. Adherents of the movement sought to destabilize traditional conceptions of law, and to unravel and challenge existing legal institutions.

is a sometimes revolutionary movement that challenges and seeks to overturn accepted norms and standards in legal theory and practice.

It seeks to fundamentally alter Jurisprudence, exposing it as not a rational system of accumulated wisdom but an ideology that supports and makes possible an unjust political system.

Critical Legal Realism scholars attempt to debunk the law's pretensions to determinacy, neutrality, and objectivity. The law is a tool used by the establishment to maintain its power and domination over an unequal status quo.

Openly a movement of leftist politics, CLS seeks to subvert the philosophical and political authority of what it sees as an unjust social system. CLS advances a theoretical and practical project of reconstruction of the law and of society itself.

1. History

CLS was officially started in the spring of 1977 at a conference at the University of Wisconsin in Madison. However, the roots of the organization extend back to Legal Realism, a movement in U.S. legal scholarship that flourished in the 1920s and 1930s. Oliver Wendell Holmes is credited with being the grandfather of CLS with his various observations in The Common Law (1881). (March 8, 1841 – March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932, and as Acting Chief Justice of the United States January–February 1930).

The legal realists rebelled against the accepted legal theories of the day, including most of the accepted wisdom of nineteenth-century legal thought. Like CLS, legal realism emphasized that judicial decisions depend largely on the predilections and social situation of the judge. Thus, the legal realists urged that much more attention be paid to the social context of the law.

Although the intellectual origins of the Critical Legal Studies (CLS) can be generally traced to American Legal Realism, as a distinct scholarly movement CLS fully emerged only in the late 1970s.

Many first-wave American CLS scholars entered legal education, having been profoundly influenced by the experiences of the civil rights movement, women's rights movement, and the anti-war movement of the 1960s and 1970s. What started off as a critical stance towards American domestic politics eventually translated into a critical stance towards the dominant legal ideology of modern Western society. Drawing on both domestic theory and the work of European social theorists, the "crits" sought to demystify what they saw as the numerous myths at the heart of mainstream legal thought and practice.

The leading guru and inspiration of Critical Legal Studies Movement is Professor Roberto Mangabeira Unger of Harvard University Law School. -has described the law faculty of those days as "a priesthood that had lost their faith and kept their jobs." These young students began to apply the ideas, theories, and philosophies of postmodernity (intellectual movements of the last half of the twentieth century) to the study of law, borrowing from fields as diverse as social theory, political philosophy, economics, and literary theory.

Unger is a Brazilian philosopher and politician. He studied law at the Federal University of Rio de Janeiro. In 1976, at 29 years old, Unger became one of the youngest faculty members to receive tenure from the Harvard Law School.

Since then, CLS has steadily grown in influence. By 1989, over 700 articles and books had been published expounding the ideas of this movement. Besides Unger, noted CLS theorists include Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and Catharine A. Mackinnon.

2. Themes

Although the CLS (like most schools and movements) has not produced a single, monolithic body of thought, several common themes can be generally traced in its adherents' works. These include:

A first theme is that contrary to the common perception, legal materials (such as statutes and case law) do not completely determine the outcome of legal disputes, or, to put it differently, the law may well impose many significant constraints on the

adjudicators in the form of substantive rules, but, in the final analysis, this may often not be enough to bind them to come to a particular decision in a given particular case. Quite predictably, once made, this claim has triggered many lively debates among jurists and legal philosophers, some of which continue to this day (see further indeterminacy debate in legal theory).

Secondly, there is the idea that all "law is politics". This means that legal decisions are a form of political decision, but not that it is impossible to tell judicial and legislative acts apart. Rather, CLS have argued that while the form may differ, both are based around the construction and maintenance of a form of social space. The argument takes aim at the positivist idea that law and politics can be entirely separated from one another. A more nuanced view has emerged more recently. This rejects the reductivism of 'all law is politics' and instead asserts that the two disciplines are mutually intertwined. There is no 'pure' law or politics, but rather the two forms work together and constantly shift between the two linguistic registers.

A third strand of the traditional CLS school is that far more often than is usually suspected the law tends to serve the interests of the wealthy and the powerful by protecting them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals, etc.) for greater justice. This claim is often coupled with the legal realist argument that what the law says it does and what it actually tends to do are two different things. Many laws claim to have the aim of protecting the interests of the poor and the subaltern. In reality, they often serve the interests of the power elites. This, however, does not have to be the case, claim the CLS scholars. There is nothing intrinsic to the idea of law that should make it into a vehicle of social injustice. It is just that the scale of the reform that needs to be undertaken to realize this objective is significantly greater than the mainstream legal discourse is ready to acknowledge.

Furthermore, CLS at times claims that legal materials are inherently contradictory, i.e. the structure of the positive legal order is based on a series of binary oppositions such as, for instance, the opposition between individualism and altruism or formal realizability (i.e. preference for strict rules) and equitable flexibility (i.e. preference for broad standards).

Finally, CLS questions law's central assumptions, one of which is the Kantian notion of the autonomous individual. The law often treats individual petitioners as having full agency vis-a-vis their opponents. They are able to make decisions based on reason that is detached from political, social, or economic constraints. CLS holds that individuals are tied to their communities, socio-economic class, gender, race, and other conditions of life such that they cease to be autonomous actors in the Kantian mode. Rather, their circumstances determine and therefore limit the choices presented to them. People are not "free"; they are instead determined in large part by social and political structures that surround them.

A. Critical Legal Scholarship scorned

Richard A. Posner of the United States Courts of Appeals and Senior Lecturer at the Chicago Law School does not hide his disdain for critical legal scholarship saying that critical legal scholars are the illegitimate descendants of the modern legal realist school of jurisprudence.

G. Edward White, Professor of Law at University of Virginia states that the kinship claimed by the critical legal realist to the modern school of legal realism is a grasp at legitimacy.

Cornel West, Professor of Religion at Princeton University, brands critical legal realists as the academic left subculture. He states that he has not fully understood their animosity and hostility toward liberalism displayed in much of their writings.

B. Polemics against Critical Legal RealismA polemic is a contentious argument that is intended to establish the truth of a specific understanding and the falsity of the contrary position. The art or practice of such argumentation is called polemics.

The legal realism is a critique directed against the disclosure, agenda and practices of the dominant liberal paradigm.

Liberalism based on the following set of assumptions:1. Human nature is essentially "good"2. The fundamental human concern for others' welfare makes progress possible3. Sinful or wicked human behavior such as violence is not the product of flawed people but of evil

institutions

Critical Legal Studies has naturally incurred the hostility and ire of the defenders of the dominant liberal paradigm.

Ronald Dworkin dismisses the thrusts of critical legal scholarship as spectacular and even embarrassing failures.

Some of the defenders have gone as far as branding critical legal scholarship as but another form of radical socialism, no different from the critical social realism of Karl Marx (1818-1883).

Actually, the only common denominator of the critical social realism of Karl Marx and the critical legal realism of Roberto Unger is their disenchantment with:

1. The elitist tendencies of the dominant liberal paradigm2. The concealed intentions and judgments behind legal concepts and ideas which the dominant liberal paradigm has managed

to include directly and indirectly, into legal order.3. The belief that the system of distribution of the material and social goods is just and in the best interest of the people and

therefore inviolable.

However, Roberto Unger repeatedly stated that critical legal realism is not leftist oriented as Karl Marx critical social realism. He avers that his social theory is an alternative to Marxism and that it is not a reaffirmation but a staunch denial of the bourgeois agenda of social divisions and economic hierarchies. Thus, critical legal realism is the counter image of the uprooting Marxist program of revolutionary change of the dominant liberal society in general and dominant liberal legal order in particular.

C. Deconstruction of Dominant Liberal Paradigm

In the hands of critical legal realist, deconstruction is the technique of:1. Stinging analysis of the traditions, that is to say the ideas, beliefs, attitudes and propensities of the dominant liberal

paradigm.2. Reformation of the traditions of the dominant liberal paradigm through the presentation of the rationale or justification

for the censure and the offer of alternative solutions.

1. Trashing the traditions of the Dominant Liberal Paradigma. The contemporary social order is free society for there is individual initiative to undertake any business or enterprise.b. The underlying economic thrust of the contemporary social order in the control, protection, distribution and exchange of

goods and credit is based on free competitive conditions.

Roscoe Pound in one of its lectures in Yale University identified error and sophistry of dominant liberal paradigm as “the economic interpretation of the law imposed on society by the dominant liberal class in furtherance, consciously or unconsciously of its own interests.

For critical legal realism, the results of the erroneous tradition maintained by the dominant liberal paradigm are:

1. The state has become the organization of the dominant liberal class2. The law has become the rationalizing instrument of alienation and oppression yielding concessions only when

absolutely necessary in order to avoid protests and contradictions3. The social structure has become so divided and hierarchied that status and position therein are determined by

irrelevant inequalities.

2. Internal Reformation of the Dominant Liberal ParadigmCritical legal scholarship has not left its stinging analysis of the dominant liberal paradigm at the first stage of the deconstruction process. Otherwise, critical legal scholarship would not have succeeded in shaking the foundations of the contemporary liberal social order.

a. Rationale and Justification for the CensureIn critical legal scholarship, the rationale and justification for trashing the dominant liberal paradigm is to expose its erroneous traditions and to open up its elitist discourse, agenda and practice hiding behind jural constructs and categories which were posited by their authors precisely to nurture the as an effective neutral means of social control.

1. The Rule of LawThe pristine form of this jural construct is traceable to Aristotle.

Plato – administration of a politically organized society by a philosopher-king is preferable.

Aristotle – argued that the rule of law is preferable to that if a single person.

This normative principle means that conduct must conform to the formal and impartial norms and values of the law suggested by the phrase “government of laws and not of men”. The moral, political, ad economic corruption of a society begins the very moment the normative principle of the reign and sovereignty of the law is abused and eroded.

But the contemporary liberal society, the principle of the rule of law has become an empty mechanism for the protection of the people. It has become a means of oppression. As seen by critical legal realists, the dominant liberal paradigm has managed to conceal the struggle of the disadvantaged class to obtain the benefits of basic equality promised by the constitution.

For the critical realist, the normative principle of the rule of law in the hands of dominant liberal paradigm has not been used for the empowerment of the people.