Critical legal studies, feminism and critical race theory

Critical legal studies,
feminism and critical
race theory
Social Theory and Law 336
Fall 2013/2014
Dr Myra Williamson
Readings and resources
Davies, M Asking the Law Question 3rd Ed (Sweet and Maxwell, 2008)
Chapter 5 (Critical Legal Studies)
Chapter 6 (Feminism)
Chapter 7 (Critical Race Theory)
This book is in the library on reserve
Lloyd’s Introduction to Jurisprudence – in the library
Sinha, S Jurisprudence – Legal Philosophy in a Nutshell (West Publishing, 2003) – in the
See the e-book on my website
• - and the links at the bottom of that
page to other pages
The Free – search for ‘Critical Legal Studies’
I will scan some pages from Raymond Wacks’ book and put up on my website
Teaching and learning
• We are going to spend the next 2-3 lectures discussing
Critical Legal Studies, Feminism and Critical Race Theory
• There will be questions in the final exam (both short and
long answer) based on this part of the course
• The main objectives in this topic are:
• To learn what Critical Legal Studies, Feminist Legal Theory and
Critical Race Theory are all about;
• To learn about what they have contributed to jurisprudence;
• To consider whether the connection between the Arab/Islamic
world and these three related areas of Western legal philosophy
• Monday 26th November: CLS slideshow
• Wednesday 28th November Feminist Legal Theory/prepare for
guest on Monday/readings for Monday
• Monday 1st December: guest lecture on Islamic Feminism in
• Wednesday 3rd December: Student Presentations
• Monday 8th December: Student Presentations
• Wednesday 10th December: Last class
Critical Legal Studies (‘CLS’) was a movement that grew to prominence in the
United States in the 1970s and 1980s
It was the intellectual successor of (i.e. it followed on from) Legal Realism
It grew in the period of disenchantment in the post-Vietnam War era
Many of the early CLS scholars were influenced by the civil rights movement, the
anti-war movement and the women’s rights movement.
The Critical Legal Studies movement does not consist of one, coherent (single)
theory but there are some common themes
It had two major offshoots:
• Feminist legal Theory: it examines the role of gender in the law
• Critical Race Theory: it examines the role of race in the law
These days, CLS has clusters at many law schools around the world
In this slideshow we will look at the basics of CLS and both these offshoots
• Where did Critical Legal Studies (‘CLS’) come from?
• It’s philosophical origins are from American Legal
Realism, especially Oliver Wendell Holmes (it shares
their obsession with the role of judges and the
indeterminacy of law – see below)
• Also draws on other philosophers including Karl Marx,
Friedrich Engels, Max Weber, Max Horkheimer, Michel
Foucalt and Jacques Derrida (among others) whom you
might already know about
History continued…
• There was a conference in 1977 – the Conference on Critical
Legal Studies – which is when the movement really took a
proper form.
• The 1977 Conference on Critical Legal Studies in Madison,
Wisconsin was the first formal meeting of the ‘Crits’ as they are
sometimes called.
• CLS arose from a group of students and academics at Yale and
Harvard Law Schools in the late 1960s and early 1970s
• The CLS ideas came from a small base of white, male
intellectuals at US law schools
• For more information on its origins see Davies at pp186-87 or
see Wacks Understanding Jurisprudence chapter 13
Common themes
• Although there is no single CLS theory, there are some
common themes (these are important):
1. Legal materials do not completely determine the
outcome of legal disputes
2. All law is politics – legal decisions are a form of political
decisions (compare with the positivists idea that law and
politics are separate from one another)
3. Law serves the interests of the wealthy and powerful by
protecting them against the demands of the poor and the
subaltern (i.e. women, ethnic minorities, working
classes, indigenous people, the disabled
1.Law is indeterminate
Legal materials (such as case law and statutes) do not completely
determine the outcome of legal disputes - they have some impact but other
factors are also important
The outcome of a legal dispute will have as much to do with the social
context as the legal reasoning
This should be familiar: the CLS thinkers agreed with the Legal Realists’
ideas about the indeterminacy of law, we discussed this idea in the
previous topic. They agree that the language of law itself is open to
different interpretations – there is not one single interpretation of ‘the law’
in a given case
Examples: the “reasonable” man; the normal words used in statues (e.g.
“Vehicles are not allowed on the grass”) – more than one meaning is
always possible so the outcome of a case is ‘indeterminate’ or ‘not
determined’ by the law itself
1.Law is indeterminate
“Law is simply politics dressed up in different garb; it
neither operates in a historical vacuum nor does it exist
independently of ideological struggles in society. Legal
doctrine not only does not, but also cannot, generate
determinate results in concrete cases…Legal doctrine
can be manipulated to justify an almost infinite
spectrum of possible outcomes”
Allan Hutchinson and Patrick Monahan, “Law, Politics and the Critical Legal
Scholars: The Unfolding Drama of American Legal Thought” (1984) 36 Stanford
Law Review 199 at 206
2. All law is politics
CLS theorists argue that law and politics are inseparable (law and politics can’t be
separated from each other); Legal decisions are a form of political decisions
Law is not an objective, rational process of impartial decision-making
Instead, it’s just like politics, full of competing interests, it has arbitrary categorizations
that are constantly refined and reworked
Judicial decisions depend mainly on the social situation of the judge – so more
attention should be paid to the social context of law (the CLS thinkers agreed with the
Legal Realists on this point).
Judicial objectivity is impossible
CLS strips judges of their supposedly disinterested role in society
So, CLS scholars try to delegitimize and demystify the law – to remove the cloak of
mystery and awe that surrounds the law
3. Law serves the interests of
the wealthy and powerful
• The legal system, like the political system, serves to
maintain the current arrangements (it keeps the “status
quo”, which means, the legal system keeps things as they
• The law perpetuates or continues the established power
relations in society
• Law is an instrument of oppression used by the powerful
and the wealthy to maintain their place and to protect
their interests
• Law is used by the rich and/or powerful against the poor
and/or weak individuals in society
CLS and ‘Liberalism’ – Part I
• CLS scholars criticize ‘liberalism’ which they see as the dominant
political ideology – certainly, the one that has shaped Western
thought in the 20th century
• What is ‘Liberalism’?
• Basically, the idea of ‘life, liberty and property’,
• Liberalism stands for individual rights, private property rights, each
man for himself etc…
• An emphasis on ‘rights’ has been very important in Western thought
• John Stuart Mill: individuals should have the right to do anything so
long as it doesn’t harm others – the state shouldn’t involve itself in
people’s lives, except to protect some from harming others
CLS and ‘Liberalism’ – Part II
• CLS scholars:
• Don’t like ‘Liberalism’ and don’t like all this talk about ‘rights’
• They call for more emphasis on the community, not on the individual
• They argue that ‘rights’ are ideals that protect the interests of the
privileged – in a capitalist society where the ability to defend one’s rights
is dependent on the ability to pay, those who have ‘rights’ are the
wealthy (the property owners, the business owners)
• Liberal rights are a “screen” hiding the true nature of oppression in
• Rights are just part of the ‘alienating’ structure of the law
• Rights don’t produce justice – they are just a way of entrenching existing
inequalities (e.g. women have the right to vote, but so what? Have they
achieved real equality or just a right to vote?) – see the argument of Peter
Gabel, discussed in Davies, M Asking the Law Question at pp204-206
• Do you agree with the main themes of CLS?
• Is law indeterminate?
• Is law inseparable from politics?
• Does law serve the interests of the wealthy and powerful?
• Are ‘rights’ just a screen – or do they provide substantive
• How about here in Kuwait? What would a CLS
movement in Kuwait take as it main topics of debate?
What became of CLS?
• It is still a movement, with small clusters of CLS scholars in
law schools around the world but its influence has waned
• In 2003 Duncan Kennedy wrote that “CLS as a political
movement has been dead for a number of years but CLS as a
legal academic school of thought is very much alive”
• It gave birth to other streams of legal thought such as feminist
legal theory and critical race theory (see below)
• There are CLS scholars working in all areas of law including
family, international, comparative etc
• There are law journals devoted to publishing the research of
CLS scholars
Criticism of CLS
• CLS does not offer any alternatives – it criticizes and delegitimizes
law and demystifies, but it doesn't’t suggest anything better
• CLS was a movement begun by white, educated males – perhaps it
was captured by this, it failed to attract others, that’s why offshoots
• CLS writing remained quite abstract and obscure – frequently of
little relevance to real problems (see Davies, M Asking the law
Question, p195)
• CLS’ attack on ‘rights’ and liberalism isn’t correct: rights DO
achieve something for minorities (see Richard Delgado in Davies at
pp206-207) and minorities think there is value in seeking ‘rights’
Feminism and Feminist Legal
• What is ‘feminism’?
• Feminism is a collection of movements and
ideologies aimed at defining, establishing, and
defending equal political, economic and social rights
for women
• A feminist is a person who supports equal rights for
Feminism – a brief history
Feminism has a long history – but women who fought for women’s rights
didn’t always use the term ‘feminist’. Some say that the early activists were
not ‘feminists’ – that this term only applies to the modern movement
First wave feminist: 19th and 20th centuries –
• Focus on gaining the right to vote – women’s suffrage movements mainly in UK,
US and similar countries
• E.g.. New Zealand gave women the right to vote in 1893; South Africa in; in the
UK, women over 30 who owned property got the vote in 1918; this was extended to
all women over 21 in 1928; in the US, women got the right to vote in 1916 via the
Nineteenth Amendment to the US Constitution
Second wave feminism: 1960s-present
• Focus on gaining legal and social equality for women – ending discrimination
Third wave feminism: 1990s –present
• Responding to the failures of the second wave
Feminism – what’s it all
“Representation of the world, like the world itself,
is the work of men; they describe it from their own
point of view, which they confuse with the truth”
• Simone de Beauvoir The Second Sex as reproduced in Davies at p213
What does this mean to you?
“Men have made the legal world in their own image, confusing it, as de
Beauvoir says, with the absolute truth” – Davies, p215
Some general points about feminism:
There isn’t ONE feminism, but many – white, middle-class women from developed
countries have a different perspective than other women (e.g. women from other ethnic
groups, from developing countries, from a religious minority, etc.)
The aim of feminism, generally, is transformation
Feminism is a political as well as a legal agenda
Margaret Davies: Feminism aims for a social and political environment in which
women and men of all ethnicities, class backgrounds, sexualities and abilities are
equally valued – Davies, p220
Barbara Smith: “Feminism is the political theory and practice that struggles to free
all women: women of colour, working-class women, poor women, disabled women,
lesbians, old women – as well as white, economically privileged, heterosexual
women…” in Davies at pp220-21
Different types of feminism
Feminist jurisprudence has many schools of thought within it (here are some):
Liberal feminism: the central goal is the formal equality of women
Difference feminism: emphasizes that ‘equality’ forces women to aim to be like men; it
therefore emphasizes the differences between men and women; women deserve special
treatment because they are different from men
Radical feminism: views women as a class (not as individuals, as in liberal feminism) and it
says that women as a class have been dominated by another class, i.e., men.
Post-modern feminism: it rejects the idea that there is “a woman’s point of view”, or a
single theory of equality for all women’. ‘Woman’ has many manifestations; it focuses on
the situated realities of women – practical solutions to concrete situations
Liberal feminism
• “Liberal feminism” says women’s rights and opportunities should
mirror men’s rights and opportunities
• Women should be free to enter professions of their choice, should be
involved in political life, should participate in educational
institutions, own property etc just as men do
• The goal is usually law reform to allow women’s full participation
and to remove discrimination
• Equal status and equal rights for women are the goal - because
women have as much capacity for reasoning as men
• Mary Wollstonecraft put forward these ideas in the late 18th century
– she argued that the “rights of man” should be extended to include
women (see Wollstonecraft Vindication of the Rights of Women)
Criticism of “Liberal feminism”
• The law reform that has been achieved has not resulted in
substantive equality
• Concentrating on the “public” role of women does
nothing to alleviate the problems women suffer in the
home (e.g. domestic violence)
• It doesn’t challenge the overall system - the legal system
itself is run by men and is based on male values
(individualism, adversarial dispute resolution,
independence) – the system ‘speaks’ to me
• If women have to be like men to be treated equally, then
equality itself is repressive
Radical feminism
The question is not whether men and women are the same or different; sex
is a hierarchy – men have power and women do not – it will always be this
Gender (whether one is male or female) is a question of power
Main thinker in this area is Catherine MacKinnon (see analysis and
extracts in Davis at pp240-52)
She has some ‘radical’ views - you can read more about her if you wish
Criticism 1: seeing women as a class overlooks the different experiences of
different women
Criticism 2: seeing women as a class that is dominated by men leaves little
room for hope – these differences will always exist
Feminism, Islam and Arabs
Does feminism exist in Arab countries?
Guest speaker: Alessandra Gonzalez, via Skype, on Monday 1 December
• Do any Muslim women claim to be feminists? Is there such a thing? What does it mean ‘
Muslim’ and ‘feminist’?
• What is different about Muslim women’s experiences that set them apart from Western
Does Western feminism have anything to offer non-Western women? Are the social
and political environments so different that Western values cannot be imposed on
non-Western cultures?
Further reading: see Davies at 262-63
See Gonzalez’ book on Islamic Feminism in Kuwait
Race, culture and ethnicity:
• Liberal and radical feminism have been criticized for ignoring
women from minority groups who have their own, special
• White, privileged, heterosexual women were at the front of
feminism – but what of Asian women, Black women, Hispanic
women, disabled women?
• They have 2 ‘oppressions’ – this is sometimes called a system
of oppressions which intersects with gender oppression
• Example: Oprah Winfrey – she says sometimes that she is
discriminated for being black and again for being a woman
(hand bag incident)
Critical Race Theory
What is “Critical Race Theory”?
It is concerned with the role of race in law
CRT is concerned with the idea of inescapable and inherent racism in the
American legal system
Its first workshop was held in 1989
It argues that the perception and experience of the world are determined
by one’s position in the race structure of society
It has a different methodology: instead of analysis, they often use
narrative, story-telling
It hasn’t received widespread acceptance in the US – its still mainly a
fringe area of academic thinking
• We have surveyed Critical Legal Studies – probably the
first critical movement of recent times that has challenged
the predominantly positivist tradition of legal theory
• CLS saw law as a political instrument which shapes our
perception of ‘truth’
• We looked at two main offshoots of CLS – feminist legal
theory and critical race theory
• Is CLS a disparate group of scholars or do they share a
number of important ideas and approaches? Do they,
together, amount to a new approach to legal scholarship?

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