Lecture 7 – Critical Law Theory
A way of reinterpreting the law ideologically – similar to Foucault’s reinterpretation of punishment.
They view law as a system of power distribution and ask who holds the power and for what ends?
Broadly speaking, an ideology is the idea that you are interpreting something that appears in front of
you and giving it a meaning which it doesn't appear to bear upon its face. Perhaps the most important
ideological view that has existed we have seen so far is Marx's view of the reinterpretation of history
as a class struggle between the bourgeoisie, on the one hand, those who own the means of production
and the capital, and the proletariat on the other hand, who are the people who don't have the means
of production and therefore have nothing to offer other than their labour.
But we did actually see that Foucault developed the idea of this. Foucault was a Marxist post-modern
in the French tradition. His main function was looking at language. But as a Marxist, he sought to see
language as a vehicle for the imposition of power by those that hold it against those who do not. We
will see then that Foucault's interpretation of punishment is as a demonstration of the power of the
state and its rule over the rest of us, the subjects who must obey its laws. So that's Marxist ideology.
Today we look at critical law theory, which is in the main Marxist. It was a movement in America in
the 1970s and 80s and perhaps into the 90s, but it really has pretty much fallen out of favour.
Critical realists are successors to the American realists – they look to see what is factually or socially
real about law and the structures of the legal system. So historically, what I've written is correct, but
the more I think about it, the more I think that really the critical realists are the successors to a form
of neo-Marxist postmodernist thinking. So what they do is to show that although the law says one
thing, it actually has a hidden meaning and it tries to achieve something else. Not what the law and
lawyers think it is, but what it really is properly construed and how it really functions.
If you remember, I suggested in the tutorials, that we can identify an ideological view of law when it
brings about injustices. The C.L. theorists are not united ideological (though many are Marxists). They
want to deconstruct the law – see it for what they think it really is. They have no ideological theory to
contribute.
• The main attack of the Critical realists was against the liberal interpretations of the law that
we saw exemplified in Rawls’s view of social justice.
That's true in the sense that Rawls was a liberal democrat. His view was that democracy, and
so the law, should demonstrate a liberal face to an existing system. Whereas actually when it
comes to it, you will see in the slides on justice that Rawls's great opponent in the
philosophical sphere was Nozick Robert Nozick, who is very right wing. But the critical law
theorists really are not right wing. They tend to be Marxist. And they objected to Rawles's
liberal interpretation of the American democratic system because they considered his views
were far too right wing for them. Rawls wasn't interested in making large changes to the
political system in America. The critical realists really did want to make large changes. They
wanted to subvert the system and to show that it needs to be completely overturned.
• Why? Because, for them, the true nature of legal systems is to perpetuate the political and
economic status quo – and so they are opposed to the retain of power and wealth in the hands
of the traditionally powerful and wealthy elite.
, And if you look at the presidents and senators in the American system, you will see that there
have been a number of dynastic families. Some of them are very, very well known. The Bushes,
for example, the Kennedys, the Gores. Dynasties which exist, people hold power as senators
or as presidents, and they retain that power in the hands of other members of the family. It is
this sort of thing that the critical law theorists really opposed very strongly, the idea that there
could be some group of Illuminati who wanted to hold on to power and wouldn't let anybody
else in because, for them, the political system was their plaything, they owned it and they
subjugated the people who were subject to the laws. Of course, as Marxists, the critical law
theorists were hoping for the overthrow of a system, and they felt that their work revealing
the true nature of the law to perpetuate the traditional power and wealth in the hands of a
number of dynastic families or a class as a whole was something to be overthrown.
• Critical Law Theorists do not suggest alternative models of their own. Their methodology is
one of deconstruction not reconstruction of the existing system.
• Any rights or freedoms acquired by individual citizens in the US Constitution are mere
unintended by-products of the law.
They produced a whole series of examples of where the law didn't appear to be setting out to
achieve the thing that it on the face of it appeared to do. There are lots of examples of where
the American system and the Constitution, which grants rights and freedoms to people, really
isn't the main point of it. The US Constitution is not really there to give people rights and
freedoms. It is there to constrain power in the hands of the few. The fact that rights and
freedoms may be given subject to all sorts of qualifications is an unintended by-product of the
law in the view of the critical law theorists.
• Examples:
• Rights/contracts – claims of rights allow the individual to exercise person interests
over collective interests. Contracts perpetuate a stable political and economic
regime.
The critical all theories were rather opposed to the idea of rights and contracts. When
it came to the idea of rights as Marxist theorists, their views were that it was the
society as a whole made up of good socialists or good communists that should prevail
over individual interests. It is, after all, in the words of the Utilitarian’s, the good of
the greater number that should prevail and the interests of the individual should be
subjugated to the interests of the general people, the state as a whole. That sounds
perfectly reasonable. It is one of the criticisms that I have of utilitarianism that the
individual disappears. But Marxism, it's not strictly utilitarian in its approach, but
nonetheless, it does set out to make a collective statement, and so the individual
disappears and ceases to have importance. So, what do you do about a system of
laws which are created by a state for the benefit of the greater number? Well, that
law should prevail, clearly. And yet individuals do insist on exercising and even
enforcing their own individual rights. So there comes a point where critical law
theorists will say that if people individuals wish to claim rights, then the very act of
claiming those rights is anti-state. It is an attempt to reduce the power of the state,
to find the greater good for everybody and to subvert the powers of that state to
