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Summary Legal Philosophy: Study Unit 4 R50,00
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Summary Legal Philosophy: Study Unit 4

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An extensive and elaborate summary of study unit 4 for Legal Philosophy 371.

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  • September 28, 2021
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4. CRITICAL LEGAL STUDIES
Introduction
 Prescribed: Jurisprudence 246-271
 CLS was formally founded in 1977 by a small group of American scholars who
shared a common commitment to leftist politics.
 Critical of mainstream and orthodox legal scholarship.
 Most prominent members: Peter Gabel, Roberto Unger, Duncan Kennedy,
Karl Klare.
 The origin of the movement owes a huge debt to American Legal Realism.
o Movements such as feminism and critical race theory also come from
American Legal Realism.
 Critical scholars readily use techniques and disciplines outside of law in order
to study legal phenomena in a manner that would reveal underlying truths
about legal order.
 They take aim at the perceived naturalness of the current legal and social
order.

Three ways in which CLS is similar to Realism, but which also involve
advances beyond Realism:
o Its reliance on historiography;
o Its emphasis on doctrinal critiques;
o Its use of political tradition.

Its reliance on historiography
 Realists showed that legal doctrine and legal rules are influenced by factors
outside of the law/reality. In this way the doctrine of law is contingent – legal
rules/outcomes represent choices of one set of values over another.
 CLS showed that the basic assumptions underlying and conditioning the
development of the doctrine of law is also contingent. The assumptions
underlying legal rules are also contingent.
o The assumptions underlying legal rules come from somewhere (they
are also contingent).

,  Historical modes of legal reasoning shape the law (legal rules/liberalism/the
politics of law?)
o View law within the time and the place it is applicable.

Its emphasis on doctrinal critiques
 Abstract legal principles such as freedom of contract, liberty, and property can
ground contradictory arguments in any given case.
 CLS employ techniques on a higher level of abstraction – CLS use sociology,
philosophy, anthropology and psychology to uncover the assumptions and
ideologies underlying the legal order.
 They take aim at the entire framework of liberal legal thought for example and
not just the legal rules that are created by that framework.
 Demonstrate inherent contradictions and tensions in liberal thought.

Its use of political tradition
 CLS emerges from a specific political tradition.
o They have a political vision of ‘participatory democracy, civic
republicanism, or decentralised socialism’. Criticism of liberal
framework.
 Candid pursuit of societal transformation.
 Socially situated assessment of the law.


Distinguish between CLS internal critique and external critique:

Internal critique:
 This critique is internal to legal doctrine and attempts to expose the
contradictions that lie embedded in legal thought.

External critique:
 This form of critique adopts an external, detached perspective removed from
the confines of legal doctrine- attempts to sketch the outlines of an alternative
political framework. This refers to CLS’ broader political agenda.


Internal Critique
 Starting point is the indeterminacy argument.

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