Anderson, J L --- "Law School Enters the Matrix: Teaching Critical Legal Studies" [2005] LegEdDig 36; (2005) 14(1) Legal Education Digest 4

Law School Enters the Matrix: Teaching Critical Legal Studies

J L Anderson

[1993] LegEdDig 60; (2005) 14(1) Legal Education Digest 4

54 J Legal Educ 2, 2004, pp 201–215

A teacher who contemplates including a unit on Critical Legal Studies (CLS) in a legal methods or jurisprudence class or injecting a CLS perspective into a doctrinal course is generally confronted with two issues: whether to teach CLS at all, and if so, how to teach it. The first question arises because of mounting sentiment that CLS is passé, that the theory is discredited and therefore irrelevant to our students. And even if we believe it has some merit, for many of us the language of CLS theory remains incomprehensible — a kind of Middle Earth dialect that we would not dream of inflicting on our students.

CLS can be characterised in two ways. In the late 1970s and 1980s, it was a movement made up primarily of law professors, who were ‘trying to create a left legal academic intelligentsia as a new social grouping that would influence both its own workplaces and the general political culture’. Although the ‘movement’ has become fragmented, various pieces of it remain active and committed to this project.

A growing number of the author’s colleagues seem to scoff at the idea of using CLS analysis in their classrooms. The reasons for this are varied, but his informal survey reveals three basic objections. First, some argue that the theory does not add anything to the insights provided by legal realism and that, to the extent it goes beyond legal realism to attack the perpetuation of hierarchy, it basically preaches communist anarchy, which most teachers have interest in promoting. Second, there is a general impression that CLS is good only for deconstruction with few positive suggestions for improvements. CLS scholars, when pressed about what to do about the problems they exposed, would ultimately fall back on radical schemes involving anarchy, Marxism, or the complete reordering of society in ways that are not only unworkable but ultimately undesirable. Finally, even if one wanted to use CLS theory, there is the problem of figuring out what it is. More than most areas of legal analysis, CLS theory is typically expressed in language that sometimes seems deliberately obscure and incomprehensible to non-CLS faculty.

The demise of CLS as a theory has been widely reported, although its co-founder, Duncan Kennedy, distinguishes between the collapse of the political movement and the continued vitality of the approach to legal analysis. This makes teaching crit theory at once more complex and time-consuming for the typical law teacher and adds to the feeling that there is no coherent theory we can teach. But beyond that, to the extent that these scholars want to use the law to achieve a particular outcome, some argue that these versions of crit theory are nothing more than legal realism skewed to achieve the particular outcomes that a particular group espouses. The complaint that deconstruction lacks a positive theory of reform is not entirely true and, in any event, misses the point. But even without a positive theory of reform, CLS analysis can be useful, even vital, in thinking critically about the law.

For many students, and indeed for many teachers, a good CLS critique can open up a whole new way of looking at the world. There is nothing like deconstruction to encourage students to begin thinking outside the box, to imagine possibilities of new rules for social interaction. If more of us begin to share concrete illustrations of ways that mainstream teachers can use CLS theory, we can help each other broaden the usefulness of this approach.

The concept of property is ripe for CLS critique. How property rights should be defined in a just society is ‘at the very centre of political philosophy.’ A legal realist critique of this case might run as follows. The central policy the majority is trying to further here is preserving the government’s right to control the use of public lands. The Court does not want to open the door to numerous claims by countless religious fringe groups that would effectively make efficient management of the public lands impossible. The critical legal analysis, however, would go much further. First the crit would question the fundamental label of ‘government property’ attached to this land, which allows the Court to conclude in a cursory manner that the Indians have no right to control what is done with it. CLS analysis goes much further, questioning whether the whole concept of ‘property’ is a convenient label that perpetuates the majority’s ability to control the minority. From a law and economics standpoint, you could analyse the causes by examining which rule better maximises wealth. But the CLS critique would deconstruct these decisions to reveal something deeper going on in nuisance law.

CLS theory would argue that protection of property value is code for allowing upper-class property owners to make the decisions about what will be allowed in our society — what our towns will look like, for example, and what businesses will be allowed to locate where. These are decisions that affect all of us in our daily lives, but only those with property are ‘recognised’ as having a stake in the outcome through this focus on protecting property value. CLS causes us to question that assumption, to ask whether the courts are using property rights language merely as a subterfuge for the perpetuation of upper-class power. A CLS critique would therefore question whether the protection of property value should be the central goal of the system. Even if the students agree that protecting property value is a good thing overall, the critique forces them to consider whether the definition of property rights is necessarily a given, or whether it is a fluid concept that we can redefine to better balance the needs of society.

Law teachers may be reluctant to introduce CLS concepts in class because the theory is often expressed in language layered in terminology that is likely to bewilder and confuse your average law student. Moreover, the concepts of CLS are frankly mind-bending; most students are not prepared for thinking this far outside the box. The philosophy teacher who asks whether we can prove that we really exist or the physics teacher who introduces quantum theory runs into much the same roadblock. The average student simply may not be receptive to a theory that questions the fundamental premises on which our lives are based.