Consorting with Stone

It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random--in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law--parameters we should reclaim critical legal studies for helping establish--apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today.

Critical legal theory is the enfant terrible of contemporary legal studies. It delights in shocking what it takes to be the legal establishment.' Its roots lie in a deep sense of dissatisfaction with the existing state of legal scholarship. These dissatisfactions and grievances are many and varied; some are more concerned with the state of legal education, others with the political conservatism of legal education, whilst others experience frustration at the failure of orthodoxy to grapple with what they see as the real problems of the role of law in the contemporary world. Advocates of critical legal studies may not all share the same rank ordering of dissatisfactions but are all reacting against features of the prevailing orthodoxies in legal scholarship, against the conservatism of the law schools and against many features of the role played by law and legal institutions in modern society. These reactive roots explain why the development of critical legal theory has taken the forms of 'movements', albeit loose and unstructured in character (Conference on Critical Legal Studies in the United States of America, Critique du Droit in France and Critical Legal Conference in Britain) which pre-date the emergence of any clearly formulated and generally agreed theoretical position. The situation of the critical legal studies movement is not too dangerously distorted if one puts the point polemically; it is a movement in search of a theory, but at the same time it is a movement which has not agreed that such a theory is either possible or desirable. This paper explores the question: does critical legal studies have the potential to go beyond its reactive origins and develop a viable alternative theorisation that is capable of providing a new direction for legal scholarship? I will offer an account of the distinguishing characteristics of the critical movement and then make some suggestions about the possible direction of its development.

A Critique of Duncan Kennedy’s Theory of Argumentation

Critical feminism, like other critical approaches, builds on recent currents in social theory that have made theorizing increasingly problematic. Post-modern and post-structural traditions that have influenced left legal critics presuppose the social construction of knowledge. From both a philosophical and pragmatic standpoint, feminist legal critics have less stake in the assault on liberalism than critical legal studies (CLS). One central difference between critical feminism and other critical legal theory involves the role of rights. Although both bodies of work have challenged liberal legalism's reliance on formal entitlements, feminist accounts, like those of minority scholars, have tended more toward contextual analysis than categorical critique. One final issue on which critical feminism often parts company with other critical theory involves the construction of alternative visions of the good society. Feminist legal critics have been less interested in predicting the precise role that gender would play in the good society than in undermining its role in this one.

Theoretical scholarship on law and sexuality has increased dramatically over the past several decades, in part due to an increase in litigation pursued by social movements representing sexuality‐based interests and identities. Much of this recent scholarship adopts an instrumental view of law, examining doctrinal framing strategies, especially rights‐based claims. Critiques based in critical race theory, critical legal studies, feminism and feminist legal studies, queer theory, postmodern and poststructural theory, and postcolonial theory complicate narratives emphasizing progressive change in the law's understanding of sexuality and identify its constitutive power to shape sexuality's place and meaning in social life.

The purpose of this study was to share findings from semistructured qualitative interviews with 9 African American and 12 Latino men about their ideas on how university personnel could better support their needs. Stressing the need for African American men to learn self-reliance to counter microaggressions, African American participants offered recommendations to students rather than personnel. Latino participants discussed the need for personnel to provide critical information about college resources. Keywords: African Americans, Latinos, microaggressions ********** Despite increased representation in the United States, African American and Latino young men struggle in many important areas of their lives. For the past 4 decades, they have maintained the highest school dropout and incarceration rates of all ethnic groups in the United States (Reyes & Nakagawa, 2010), and although most youth transition front adolescence to adulthood to lead healthy, sustainable lives, some young people, a disproportionate number of whom are Black and Latino males, are trapped in a cycle of prison, poverty, and disadvantage (Reyes & Nakagawa, 2010, p. 37). With respect to college completion, the number of African American and Latino men attaining a bachelor's degree is much lower than the number of White and Asian and Pacific Islander men (Aud et al., 2012). It is known that degree attainment contributes to greater economic stability (U.S. Department of Labor, 2015), which is positively associated with mental health (Eaton & Muntaner, 1999). Thus, diminished educational attainment has significant consequences for African American and Latino men, who already contend with gendered racism in the workplace, housing, and many other important areas of their lives (Edley & Ruiz de Velasco, 2010). The academic achievement of African American and Latino men is an important issue for counselors in educational settings. As outlined by Lewis, Arnold, House, and Toporek (2003), advocacy-oriented counselors recognize the impact of social, political, economic, and cultural factors on human development (p. 1) and, in the case of African American and Latino men, understand both the challenges they face in their pursuit of higher education and the importance of degree completion for men's later quality of life. Unfortunately, research has found that as Latino men advance in college, they become less likely to rely on others for support (Gloria, Castellanos, Scull, & Villegas, 2009). Munoz (1986) found that Latino students reported higher levels of personal stress than did their White peers when they sought out support for academic and/ or personal needs for fear that they were confirming others' perceptions that they were not college material. Therefore, more research is needed to explore the barriers faced by African American and Latino college men with accessing critical campus resources, such as mental health support, as well as the important role counselors can play in improving men's overall educational experiences. Conceptual Framework This study was greatly informed by critical race theory (CRT), a paradigm based in critical legal studies (Delgado & Stefancic, 2001; Ladson-Billings, 1998) that emerged in the 1970s to critique the treatment of race and racism in American legal ideology and practice. Critical legal studies was rooted in the assumption that legal doctrine within the United States, having developed amid the backdrop of the nation's historically oppressive treatment of people of color, could not function as a race-neutral system. Rather, the American legal system, much like other major institutions, was an extension of the racist underpinnings of the country and thereby inadvertently served to maintain the status quo (i.e., the mistreatment of people of color). Within education, CRT has been adopted as a conceptual framework that places a historical and cultural lens on educational policies and policy making and thereby encourages an analysis of racial exclusion and other forms of discrimination against students (Ladson-Billings, 1998; Villalpando, 2004). …

‘Critical legal theory’ examines how critical thought repudiates what is taken to be the natural order of things, be it patriarchy (in the case of feminist jurisprudence), the conception of ‘race’ (critical race theory), the free market (critical legal studies), or ‘metanarratives’ (postmodernism). The myth of determinacy is a significant component of the critical assault on law. Far from being a determinate, coherent body of rules and doctrine, the law is depicted as uncertain, ambiguous, and unstable. And instead of expressing rationality, the law reproduces political and economic power. In the view of critical legal studies, social justice is a hollow promise.

Although most writings on public international law (PIL) possess an esprit critique, what distinguishes critical international legal theory (CILT) is a sense that the failings in the project are not marginal or exceptional, but endemic, consistent, and structural. Known as CLS (critical legal studies), NAIL (new approaches to international law), Newstream, or simply “the crits,” this school of thought uses a broad array of techniques to address separate, but interrelated, failings perceived in the international legal project: gender biases; racialized exclusions and differentiations; class, poverty, and exploitation; cultural imperialisms; and hidden violence. The critical project is primarily an ethical one, often conducted analytically and (in a loose sense) deconstructively. Revealing and destabilizing common assumptions and “false” empirical claims, CLS aims to show the cruelty of the current systems of law, and its reign over a world where 50,000 human beings lose their lives, needlessly and avoidably, every single day. From a critical perspective, mainstream PIL appears solipsistic and blind to the plain facts of reality. Thus, CILT tries to focus on empirical occurrences, historical continuities (and ruptures), on a world outside of legal texts and conference proceedings. In this sense, it can very aptly be understood as a successor to the legal realist projects of the early 20th century, focusing on the effects of law—and not merely postulating absences to be filled—but also on the lack of effectiveness in law; for example, the poor need food, not simply a “right to food.” Likewise, in a quasi-Marxist vein, the substantive inequalities disguised and perpetuated by formal equality garner critical concern and attention. CILT is perhaps best understood as a discourse, or movement, about responsibility; about taking responsibility for our actions—and our profession— and refusing to hide behind claims of neutrality, impartiality, expertise, objectivity, optimality, or any other technicalization. The mainstream claims of objectivity, neutrality, and determinacy are not targeted for fun or mischief making, but because they function to disguise or evade responsibility—to focus attention on technical expertise rather than moral accountability. Above all, then, CILT is a progressive discourse, attempting to make real and positive changes in the world of distributions and outcomes, or, at the very least, to highlight and delegitimize the mechanisms that preclude these changes. As a result, CILT lacks any obsessive respect for disciplinary boundaries and the narrowly focused research that they produce and promote.

Relevancy of CLS Movement in Jurisprudence; A Reference of Nepal

ABSTRACTScholarship of the Middle English King Horn (c. 1250–1290) has grappled inconclusively with its obscure toponyms Westernesse and Suddene and with identification of its nebulous Saracen antagonists. Recent work on the literary impact of the historical crises of the Norman Conquest and the Crusades may offer fresh resolution, positing that thirteenth-century romances responded to contemporary realpolitik both by avoidance of taboo issues – here Edward's difficulties in Wales and Scotland, by apposite reference to Havelok the Dane, also in MS Laud Misc. 108 – as well as by fostering a national narrative of identity including the Normans, here evinced in the accentuation of difference between nascent Englishness and the foreign otherness of the Saracens. Thus, a more generative hypothesis is that the text's place names and antagonists may be strategically vague, and analysis of other analogues of the Horn story suggests that detail is ambiguated rather than lost. This interpretation may catalyse a new reading of the poem where imprecision serves political as well as stylistic exigencies.

Critical theory is an always-evolving school of thought concerned with critiquing and transforming society. Critical theory refers to the theories developed by the Frankfurt School and other recent social scientists and feminist theorists whose theories aim to explain and transform social circumstances that enslave human beings. Critical theory has been the main source of analysis in the field of curriculum studies, particularly critical curriculum theory. Critical theory has particularly influenced the work of critical curriculum theorists focused on curriculum for social reconstruction. It is important to note that, however, the critical tradition in curriculum studies in the U.S. can also be traced back to the work of Dewey, Counts, Rugg, Macdonald, Huebner, and Greene. The integration of critical theory into this critical tradition contributes to the formation of critical curriculum studies, which is well represented in the scholarship of Michael W. Apple, one of the world’s foremost educational and curriculum theorists. Apple’s emphasis on critical examination of the social realities on the one hand and search for possibilities to empower people and transform society on the other hand points to crucial tasks of critical educational and curriculum studies. Possibilities about using the process of schooling for social reconstruction and designing curriculum for a new cultural order depend on how thoroughly the current problems of social realities can be uncovered. The ideas of ideology, hegemony, official knowledge, power, deskilling, reskilling, and work intensification will be introduced to help readers understand how critical curriculum studies use these notions to examine key critical theory themes such as the politics of domination, legitimation, oppression, and exploitation embedded in school curriculum. Recent development of critical theories has presented various directions for critical curriculum scholarship. The discussion of critical theory within curriculum studies is a way to revive the tradition of loosely termed critical curriculum studies (Sadovnik 1991) while simultaneously providing a contextual framework to build a rich conceptual foundation for engaging in a disciplined critical curriculum analysis. As new forms of critical theory have been and will be developed, critical curriculum studies continue to be enriched by this school of thought. The task of critical curriculum theory must be to open up more spaces for collective work for both critical analysis and social transformation.

This essay examines the rise of in critical legal studies since the mid-1990s. A description of the contested meanings of ethics in relation to justice, including especially the ethical theories of Emmanuel Levinas, is included, as is an analysis of the significance of a radical conception of ethical responsibility for law, politics, and critical theory.

A. Rights Rhetoric 1. The Power of Rights Rhetoric to Liberate In 1989, on this three hundredth anniversary of the Glorious Revolution and the Declaration of Rights, there is still a lively debate over what is now being called rhetoric. Legal theorists and feminist theorists are asking if rights rhetoric promotes the liberation of women, or, as some writers within Critical Legal Studies now argue, if it instead constitutes a sort of liberal trap, at best impotent to produce progressive change and at worst contributing to the alienation, isolation, and pacification of women. Mark Tushnet, for example, has argued that rights talk is inherently indeterminate, and that it proceeds at a level of abstraction from which no practical or concrete cotlclusions can be drawn. Moreover, he argues, when one right is invoked to legitimate one course of action, another right can be found to authorize an opposite course of action. For instance, now that shopping malls have replaced town commons in many American cities and towns, in a set of recent cases the owners of shopping malls have clashed with representatives of various political causes who want to distribute literature or to circulate petitions in their malls. The mall owners invoke the private property right to exclude unwanted persons, and the would-be political organizers invoke free speech rights. Pressing his case to an argumentative extreme, Tushnet declares that rights are not useful: To say that rights are politically useful is to say that they do something, yet to say that rights are indeterminate is to say that one cannot know whether a claim of right will do anything.' More provocatively still, he insists that rights are now actually harmful, complaining especially that the assertion of free speech rights claims by corporations has brought about a current state of affairs in which there can be no effective legislative regulation of the spending of corporate or personal wealth to buy votes. Reaching a conclusion that

Critical Legal Studies (CLS) writers argue that judicial decision making is not politically neutral; rather, it is only a stylized version of political discourse. More pointedly, these writers argue that the belief in legal neutrality legitimates an unrepresentative political process, thereby benefiting the powerful to the detriment of the weaker. Accordingly, CLS writers consider the belief in legal neutrality to be ideological. Also, CLS writers consider judicial decision making itself (as opposed to beliefs about legal decision making) to be ideological in the sense that the outcomes of legal decision making are informed and influenced by conservative ideology.I use two senses of the term “ideology” in this essay. The ideological belief in legal neutrality is ideological in a pejorative sense. That is, it is a false belief that works to the detriment of its holder. The conservative ideology that informs legal decision making is ideological in a descriptive but not necessarily a pejorative sense. For a discussion of these and other distinctions between the possible meanings of the term “ideology,” see Raymond Geuss, The Idea Of A Critical Theory (1981), esp. ch. 1. Thus, a central project of the CLS movement is to unmask the ideological nature of law.For discussion of the premises that the liberal belief about law is ideological and that the function of CLS writers is to unmask this ideological nature, see David Kairys,Introduction to The Politics Of Law: A Progressive Critique 5 (David Kairys ed., 1990); Alan Hutchinson, Introduction to Critical Legal Studies 3 (Alan Hutchinson ed., 2d ed. 1989); Richard M. Fischl, Some Realism About Critical Legal Studies, 41 U. Miami L. Rev. 505, 524–25 (1987); and Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 205 (1979).

The history of the origins of the concept of intersectionality is deeply embedded in the U.S. context. The intertwined histories of the American women's movements and American race relations as well as the conjunction of several theoretical strands, such as the philosophical critique of the modern subject, poststructuralism, the critique from feminists of color, and critical legal studies, have marked the genesis and the operationalization of the concept of intersectionality in American feminist studies (Ackerly and McDermott 2011, Dhamoon 2011). This legacy has given the concept of intersectionality particular analytical contents, preferred objects of inquiry, and methodologies as well as specific political aims (McCall 2005). Kimberlé Crenshaw's initial formulation of intersectionality exemplifies this U.S. genealogy since it represents a joint analytical and political effort, embedded in critical legal studies and black feminist theory, to identify and promote the political identity of African-American women or, as she writes, to “demarginalize” their political interests and to critique single axis approaches to inequality and discrimination (Crenshaw 1991). By doing so, the concept of intersectionality not only makes visible the categories and groups that were marginalized in theory and political practice, but also articulates a new set of political interests and, to a certain extent, contributes to construct and to represent intersectional identities.