Critical Legal Studies

In discussing the validity of the explanations of law offered by Critical Legal Theory1 ("CLT") we must first elucidate upon what such explanations are, bearing in mind the ideological conflict existent within the theories themselves. Secondly, we should question their accuracy and usefulness both in terms of the present context and that from which they were conceived. It is the author's general submission that critical theories do possess a substantial degree of validity as they serve to raise awareness of issues within our society that would otherwise be obscured by the facade of objective rhetoric.

Jurisprudential movements throughout the centuries have sought an identifiable unity of law, whereby in determining the source of law we may make generally applicable statements about the nature of law itself. 2 CLT is different in that, primarily, it does not seek to describe the law or prescribe what it ought to be. Instead it challenges the law from within by 'legal insurgency', seeking to expose by analysis and deconstruction, the assumptions existent within the system that are disguised by the laws neutral aesthetic. 3 [3] CLT was spawned by the failure of the great debate between Hart and Fuller to reach a finite conclusion.

Following the Marxists and American Legal Realists,4 CLT rejects formalism and the concept of "one truth". CLT rejects the existence of neutrality in law. It rejects the purported 'natural order of things',5 suggesting it to be a mere reflection of the white male middle-class Anglo-Saxon protestant agenda. 6 CLT has a profound scepticism toward the institution of law7 as it proposes that law disguises its political nature and functions; that the reality of power is obscured while the existing order is rationalised in the rhetoric of equality, rights and the rule of law.

Law is therefore not the gapless, logical, amoral, apolitical and internally coherent mechanism it has been portrayed as. 8 Marxist Legal Theory ("MLT") [5] MLT suggests that it is no coincidence that the law operates to the advantage of the powerful or that access to the law is directly related to socio-economic class. Law is seen as an instrument of domination used by the ruling class to maintain power and subjugate the ruled. 9 The economy is the base of society and law is a mere superstructure that must only be maintained until the flame of capitalism is extinguished.

10 However this dismissal of law has never been substantiated as its impracticality was apparent right from the Russian Communist Revolution in 1917 to the fall of the Soviet Union in 1991. But this failure does not undermine orthodox MLT completely as communism never had a true chance to flourish as arguably it was distorted under the Stalinist regime. 11 The path to perfect communism was obstructed by the necessity to maintain defences, which required a form of positive law. 12 [6] MLT is presented as a scientific model of social development based on real phenomena.

It sceptically rejects the idealistic assumptions of formal positivism as merely a disguise of the reality. 13 However MLT also takes on a utopian optimism that falls victim to the same scepticism that it is itself possessed of as that the grandiose notions a classless, lawless, stateless, society are no more than impracticable. 14 Further, MLT disregards the other dimensions of stratification that form the basis of other critical theories, such as race and gender. 15 [7] The validity of MLT may be difficult to comprehend in the context of current western society as the reasons behind its emergence are no longer as apparent.

MLT was developed during the Industrial Revolution when the antipathy of the working class towards the system flowed naturally from its relative destitution. MLTs notion of law appears more valid then it does presently due to the dramatic change in access to justice in recent times. 16 [8] The view of law as a tool of coercive suppression of the proletariat not only makes unchallenged assumptions, but it also neglects both the multi-functional nature of law17 and the fact that a communist society, even in its teleological state, still requires laws to plan and regulate the economy.

After all, the proposed 'administration of things' is merely law by another name. 19 However MLT highlights the failings of the law under a capitalist regime and although its accuracy as to the nature of law may be lacking somewhat, it is useful as a tool for analysis and criticism of the status quo. Critical Legal Studies ("CLS") [9] CLS evolved out of the decline of MLT and the political context of the 1970s. CLS sees law as based on power relationships and it seeks to look behind legal concepts that make the social world seem neutral20 and inevitable21 to determine what interest they serve.

The law is chaos, it is globally indeterminate22 and the pretension of objectivity that separates law from politics is a sham. 23 It exists to covertly maintain the status quo. In response to a suggestion that this cannot be true as the supposed 'victim' of law does win in many cases (as did the pauper May Donoghue in Donogue v Stephenson24), proponents of CLS suggest that such instances are small concessions enabling successful concealment of law's truly hegemonic nature. 25

[10] Like the realists, CLS proposes that in making decisions, the judge is not merely interpreting the words of the law that exists neutrally and independently of themselves. Rather, judges inevitably impose their own political values in making a decision. 26 The validity of this suggestion is dependant on the 'core' or 'penumbral'27 nature of the case at issue. 28 These similarities beg the question of whether CLS is merely an anachronistic attempt to reconstitute the Realist movement.

This contention is wholly incorrect as the two theories are fundamentally different as, while Realism accepts the distinction between law and politics and the concept of neutral law, CLS rejects both propositions outright. 30 CLS differs also from MLT in that CLS rejects the theories of instrumentalism and super-structuralism as it sees law as "an aspect of the social totality, not just the tail of the dog". 31 [11] CLS is often accused of nihilism in that it fails to go beyond deconstruction to create a new conception of law resolving the problems it identifies.

Against this, Roberto Unger's 'Super Liberal State'33 is often wedged as evidence to the contrary. But this supposed solution seems no more practical than that offered by MLT. In fact it distracts one from the true solution that CLS offers. 34 Unlike MLT, the real aim of CLS is not the complete abandonment of current structures. Rather it is the improved internal awareness of systemic inconsistencies. This may not aid the perhaps-necessary social illusion that the law is somehow disembodied from its administrators, but it does prevent the passive acceptance of laws that may well be incoherent, inconsistent, and perhaps ripe for reform.

35 [13] Perhaps generally,36 CLS exaggerates the indeterminacy of law, perhaps it raises unsolvable problems, unsolvable due the fact that the system is, and can only be, administered by humans. But CLS does offer insight as it both illustrates the illusory nature of the separation between law and politics and highlights systemic contradictions so that we may take steps to reform, and thereby promote a coherent system of law. 37 CLS has indeed played a large role in revealing the gap between rhetoric and reality. Feminist Legal Theory ("FLT") [14] Generally, FLT sees law as reflecting the male perspective.

38 Anne Scales' 'Tyranny of objectivity' suggests that social patriarchy is so pervasive that it is absolutely invisible. 39 This argument is justified in light of the role of women throughout history. Indeed among the first pages of the bible, within the text that arguably forms the basis of the ideology from which western society and its laws are derived, 'woman' is described as a 'helper fit for [man]'. 40 This divine historical account even suggests that woman was created from the rib of man. Even if purely metaphorical, this portrays women to be subject to man both in their creation and in their continued existence.

This could explain why law is by nature patriarchal. [15] Historical evidence of gender inequality within the law is abundant. 41 However in the currant age of egalitarianism, the validity of FLT may have expired as gender inequality is widely recognised and the 'problem' may have been rectified. Indeed, the top offices of New Zealand, both public and private, are presently occupied by females. Furthermore, one is hard pressed to find a clear example of overt gender inequality in a current Act of Parliament. This is clearly an artificial notion however for two reasons.

Firstly, it fails to recognise that in order to 'succeed' in this sense, women must often adopt traits more akin to the masculine persona. 42 Secondly, the focus of FLT is not so much the formal legal equality between the sexes, rather the underlying 'structural sexism' that exists within the law. 43 [16] FLT is often the subject of the 'no concrete solutions' criticism. 44 However the aim and solution of FLT is not 'concrete' revolution,45 rather it is empowerment: both in terms of raising female awareness of rights, and resistance against forces that constrain female identity within society.

Such empowerment encourages society to progress with gender inequality in mind. 47 Indeed, FLT has had a profound impact on the legal system. 48 However the apparent lack of unity within FLT undermines the impact of the theory. 49 If the solution offered by FLT is to raise awareness so that gender discrimination may be eliminated, the movement must unite and disassociate itself from its radical wing which has alienated many from the theory generally. Maximised support for FLT is the most effective cure for systemic sexism.