The movement has operated around a number of conferences held each year, including the Critical Legal Conference and the National Critical Lawyers Group. Since then, CLS has steadily gained influence and has permanently changed the legal theoretical landscape. Notable CLS theorists include Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon. [8] This article challenges Critical Legal Studies (CLS) claims about legal vagueness. It uses legal formalist logic and language as its main claim, and further asserts that CLS`s claims are based only on ambiguity and confusion. The article will also refute the main reason given by CLS for claiming legal vagueness, the concept of “law is political”, by offering counter-examples. This work also provides examples of laws, laws and legal affairs in the Philippine context. These examples will further help the reader contextualize the theories advanced in the article. Like most schools and movements, CLS did not produce a single monumental body of thought. Although there are several common themes and themes that can be followed on the works of different followers.
The first problem is that legal documents such as laws and case law do not entirely determine the outcome of a dispute. Second, the idea is that “law is politics.” The arguments aim to separate the positivist conception of law from politics and morality. Third, the traditional claim is that the law, much more often than usual, tends to serve the interests of the rich and powerful by protecting them from the demands of the poor and subordinates, women, ethnic minorities, the working class, indigenous peoples, the disabled, homosexuals, etc. for more “justice.” Fourth, allegations that legal documents are inherently contradictory. Finally, they challenge the central legal assumption that an individual, a judge or a lawyer, is an autonomous individual. That they are capable of making impartial decisions based on reason, detached from political, social or economic constraints. CLS researchers believe that individuals are inextricably linked to their era, socioeconomic class, gender, race, and other living conditions, temporarily or permanently. Therefore, they question the idea of “free” and partial decision-making. LEGAL AND POLITICAL UNCERTAINTY Legal formalism Generality inherent in laws Reasoned development Institutionalized system “Law is political” CLS Response Legitimacy of laws The last part proposes the conclusion that CLS has failed to prove the vagueness of the law. They do so by refuting their assertion of legal contradictions through legal formalism. Then, with the use of legal formalist logic and language, as well as the sub-arguments: “reasoned elaboration”, inherent generality and neutrality of legal language, centralized and institutionalized process and regulation, this thesis refutes the claim to personal, partial and subjective legal decisions. Nevertheless, it still considers CLS to be a legitimate legal theory and can be used as a viable theory for the further development and usefulness of case law.
This timely and secure book provides a unique guide to critical legal studies, which represent one of the most exciting developments in contemporary jurisprudence. It was the first book to systematically apply a critical philosophy to the substance of the common law. The book develops a compelling, interdisciplinary overview of the political and cultural importance of legal institutions. An overview of postmodern legal theory will help, as this is the style and character of CLS. Emmanuel Fernando examined the general orientation of postmodern legal theory as a collective movement of jurisprudence. He contrasted the postmodern approach of legal theory with the approach of Anglo-American legal theory. Fernando argued that the postmodern approach was excessively external and anti-fundamentalist. He added that the modern approach also puts an end to the nagging problem of infinite regression, which pursues all efforts to establish a political or legal platform.[10] On the other hand, negative case law provides critical information about the law, but does not offer a positive course of action. CLS is in this area of law, as it only criticises the existing legal concept, but does not propose a course of action.
This is also the basis for the critique of externality. CLS began in the mid-1970s with its first Harvard Law School enrollees. At first, many supporters of the American CLS scholars were interested in legal education. At that time, they were influenced by their experiences of various movements: civil rights movements, women`s rights movements, and anti-war movements of the 1960s and 1970s. From these various protests against domestic politics, CLS emerged and eventually developed a critical attitude towards the dominant legal ideology of modern Western society. The British and American versions started around the same time. [7] Both wanted to explain what is wrong with legal thought and practice. Legal realists argue that judges hold the key to the influence of the law. They further stated that judges were guided by their interpretation of the law; However, being human means being influenced by other factors such as feelings, moods, alliances, and preferences. They stress the fundamental importance of personality for the outcome of legal disputes. CLS researchers used the ideas and legacy of legal realism to challenge the existing convention in the legal system. [5] Critical Legal Studies (CLS) began with the concept and ideas of postmodernism.
Postmodern legal theory has sought to dismantle meta-narratives of modernity, which in this case is the legal institution as a whole. They want to “upset the foundations of certainties that are now conventional and comforting”. [9] In this situation, “comforting certainties” are theories that include legal positivism and natural law theory, which provides a certain definition and nature of law. Fernando shaped both positive and negative jurisprudence in the evaluation of postmodern legal theory. On the one hand, positive jurisprudence refers to “any legal theory that forms the basis of judicial action in a particular case or situation and/or recommends the basic structures of a just state”[12]. In particular, it calls for justice, especially legal controversies such as abortion, affirmative action, privacy and the appropriate level of taxation. It also suggests how laws are a social phenomenon and how decisions should be made in certain cases. Their work is positive in that it provides a “normative framework for future action by legislators and judges”. [13] This paper will focus on CLS`s allegations of legal vagueness and impartiality as the main critical point. Postmodernism, with its externality and anti-fundamentalist character, can also be used to analyze CLS`s claims against legal institutions.
The third chapter sets out the document`s main arguments against the CLS movement`s claim that it is legally unclear. This article will show that CLS`s claims are based on ambiguity. On the one hand, their assertion of legal indeterminacy is based only on a confusion between generality and contradiction. The article uses arguments that evolve with the idea of legal formalism, logic and language. It is then supported by sub-arguments that further support the main assertion of legal formalist logic and language, which includes the generality and neutrality inherent in legal language, institutionalized and centralized processes, and reasoned elaboration.