Jurisprudence
Critical Legal Studies and the Modern Theories
At a Glance ▪ Critical Legal Studies (CLS) began with the 1977 Conference on Critical Legal Studies at Madison, Wisconsin. It carries realism further: law is indeterminate, not neutral, and works to legitimate existing hierarchies. In short, law is politics. ▪ Duncan Kennedy found an opposition of individualism and altruism ('Form and Substance in Private Law Adjudication', 1976) and a fundamental contradiction in legal thought ('The Structure of Blackstone's Commentaries', 1979). Unger proposed superliberalism. ▪ Tushnet attacked rights talk; Patricia Williams and critical race theory (Bell, Delgado, Crenshaw) replied that rights matter deeply to the oppressed. ▪ Other modern theories judge law by efficiency (law and economics: Coase, Calabresi, Posner), by its effect on wellbeing (therapeutic jurisprudence: Wexler and Winick) or by its power to repair harm (restorative justice: Braithwaite, Zehr). ▪ Transformative constitutionalism (a term coined by Karl Klare, 1998) and constitutional morality (Grote, via Ambedkar, 4 November 1948) now shape Indian constitutional law: NALSA (2014), Navtej Singh Johar (2018), Manoj Narula (2014). |
A traveller reaches a junction where a signboard says 'Only road to the city'. Much later he learns that two other roads existed behind the trees, and that the sign was put up by the owner of the toll plaza on the road he took. Critical Legal Studies says that legal doctrine often works like that signboard: it presents the existing arrangement of property, contract and power as necessary and natural, when it is the product of choices that could have been made differently and that favour some groups over others. The other modern theories in this note ask different questions of law: is it efficient, does it heal or harm, and can it transform an unequal society?
Figure: The families of modern legal thought grouped by what each is chiefly after: critical theories, the economic approach, healing and repair, and constitutional renewal
1. Critical Legal Studies: Origins
CLS took shape at the first Conference on Critical Legal Studies, held at the University of Wisconsin in Madison in 1977. Its founders were young American law teachers, many at Harvard, who had been shaped by the civil rights and anti-war movements. They drew on three sources: American legal realism, whose rule-scepticism they radicalised (Note 15); Marxism, especially its account of law as ideology (Note 16); and European critical theory and, later, structuralism and deconstruction. The leading names are Duncan Kennedy, Roberto Mangabeira Unger, Mark Tushnet, Mark Kelman (A Guide to Critical Legal Studies, 1987), Morton Horwitz (The Transformation of American Law, 1780 to 1860, 1977) and Peter Gabel.
2. The Core Theses of CLS
What CLS claims about law ▪ Indeterminacy. Legal materials do not dictate a single right answer. For almost every rule there is a counter-rule, and for every principle an opposing principle, so the outcome of a disputed case is chosen, not compelled. ▪ Law is politics. Because the choice is not dictated by the rules, it is made on political and ideological grounds, even when it is presented as neutral legal reasoning. ▪ Legitimation. Legal doctrine makes an unequal social order look natural, necessary and just. People accept arrangements that serve the powerful because the law presents them as the product of neutral reason. ▪ Reification. Law turns human choices into apparently fixed things, such as 'property' or 'freedom of contract', and so hides the possibility of change. ▪ Hierarchy in legal education. Kennedy's 'Legal Education and the Reproduction of Hierarchy' (1982) argued that law schools train students to accept and reproduce the hierarchies of the profession and of society. |
3. Duncan Kennedy: Individualism, Altruism and the Fundamental Contradiction
Two separate articles by Kennedy must be kept apart. In 'Form and Substance in Private Law Adjudication' (1976) he argued that private law is torn between two forms, clear rules and flexible standards, and that this choice of form corresponds to a conflict of substantive values: individualism (self-reliance, a sharp line between one's own interests and others', the freedom of the market) and altruism (sharing, sacrifice and concern for others). Doctrines such as freedom of contract, good faith, duress and unconscionability swing between the two, and there is no neutral way to choose between them.
In 'The Structure of Blackstone's Commentaries' (1979) Kennedy named the fundamental contradiction: our relations with others are at once necessary to our freedom and a threat to it. We need the community and the State to be free, yet the same collective power can crush individual freedom. Legal thought, he argued, is an endless effort to mediate this contradiction and to make it disappear from view. Kennedy later said that he renounced the fundamental contradiction as a grand theory, but the idea remains the best-known CLS phrase.
4. Roberto Mangabeira Unger: Superliberalism
Unger, a Brazilian scholar and politician at Harvard, offered the most constructive vision in CLS. After Knowledge and Politics (1975), he argued in The Critical Legal Studies Movement (1983) that present institutions are not necessary but one frozen set of possibilities (false necessity). His programme of superliberalism would push liberal ideals of freedom and equality beyond liberalism itself, towards an empowered democracy, with destabilisation rights to break open entrenched hierarchies and a deviationist doctrine that uses the conflicting principles already inside law to argue for change.
5. The Critique of Rights and the Reply
CLS mounted a sharp critique of rights. Mark Tushnet, in 'An Essay on Rights' (1984), argued that rights are unstable and indeterminate (the same right can be claimed by both sides), that talk of rights turns living social relations into abstract entitlements, and that by recasting political struggles as legal claims it can weaken real movements for change. Peter Gabel described rights-consciousness as a pact of isolated individuals who have withdrawn from genuine connection with one another.
The reply came from scholars of colour. Patricia Williams, in The Alchemy of Race and Rights (1991), contrasted Gabel, a white man who rented a flat on a handshake because a formal lease felt distancing, with herself, a Black woman who insisted on a detailed written lease as protection against being treated as untrustworthy. For those historically denied rights, she argued, rights are not an alienating abstraction but a sign of respect and full personhood; giving them up is a luxury of the already secure. This exchange helped launch critical race theory.
6. Critical Race Theory and Other Offshoots
Critical currents beside and beyond CLS ▪ Critical race theory. Studies how law creates and maintains racial hierarchy. Derrick Bell proposed the interest-convergence thesis (1980): gains for Black Americans, such as Brown v Board of Education, come when they converge with the interests of the white majority. Richard Delgado championed counter-storytelling, using the narratives of the marginalised to challenge dominant accounts. Kimberlé Crenshaw coined intersectionality (1989; see Note 17). ▪ Feminist legal theory shares CLS's critique of neutrality but, like critical race theory, is often more willing to use rights (Note 17). ▪ Postmodern, postcolonial and queer theory. Postmodern jurisprudence (drawing on Foucault and Derrida) treats legal meaning as unstable and law as a discourse of power; postcolonial jurisprudence asks how colonial categories still shape the law of former colonies; queer legal theory studies how law constructs and polices sexuality and gender identity. |
Thinker | Key work and year | Idea to remember |
|---|---|---|
Duncan Kennedy | Form and Substance in Private Law Adjudication (1976); The Structure of Blackstone's Commentaries (1979) | Individualism versus altruism; the fundamental contradiction |
Roberto Unger | Knowledge and Politics (1975); The Critical Legal Studies Movement (1983) | False necessity; superliberalism; destabilisation rights |
Mark Tushnet | An Essay on Rights (1984) | The critique of rights |
Morton Horwitz | The Transformation of American Law, 1780 to 1860 (1977) | Private law reshaped to serve commercial interests |
Patricia Williams | The Alchemy of Race and Rights (1991) | Rights matter to the oppressed |
Derrick Bell | Interest-convergence article (1980) | Racial progress follows majority interest |
7. The Economic Analysis of Law in Brief
A very different movement judges legal rules by efficiency (treated fully in Note 49). Ronald Coase, in 'The Problem of Social Cost' (1960), showed that with zero transaction costs parties would bargain to the efficient result whatever the legal rule; since real transaction costs are high, rules matter. Guido Calabresi, in The Costs of Accidents (1970), analysed tort law as a system for reducing the total costs of accidents. Richard Posner, in Economic Analysis of Law (1973), argued that the common law tends to promote wealth maximisation. Two tests of efficiency recur: Pareto efficiency (no one can be made better off without making someone worse off) and Kaldor-Hicks efficiency (a change is efficient if the winners gain enough that they could in principle compensate the losers). Judge Learned Hand's formula in United States v Carroll Towing Co. (US Court of Appeals, Second Circuit, 1947) states negligence in economic terms: a defendant is negligent if the burden of precautions (B) is less than the probability of harm (P) multiplied by the gravity of the loss (L), that is, B < PL. Dworkin, in 'Is Wealth a Value?' (1980), replied that wealth is not in itself a value: a society with more wealth is not for that reason better or more just. Behavioural law and economics later showed that real people depart from perfect rationality in predictable ways.
Swiss Ribbons Pvt. Ltd. v Union of India Supreme Court of India, 2019 Upholding the Insolvency and Bankruptcy Code, 2016, the Court reasoned openly in economic terms: the Code aims at the revival of the corporate debtor, the maximisation of the value of its assets and the freeing of credit. It held that economic legislation deserves latitude for experiment and trial and error, and upheld the different treatment of financial and operational creditors as resting on an intelligible differentia. |
8. Therapeutic Jurisprudence and Restorative Justice
Therapeutic jurisprudence, developed from the late 1980s by David Wexler and Bruce Winick out of mental health law, studies law as a social force that produces psychological effects, for good or ill, on the people it touches: litigants, accused persons, victims and even lawyers. It asks that, without sacrificing due process or other values, legal rules, procedures and the conduct of legal actors be shaped to promote wellbeing. Problem-solving courts, such as drug courts and family courts that use counselling and mediation, are its practical expression.
Restorative justice sees crime not mainly as a breach of the State's law but as harm to people and relationships, which should be repaired. It brings offender, victim and community together to acknowledge the harm and agree on amends. John Braithwaite, in Crime, Shame and Reintegration (1989), contrasted stigmatising shaming, which casts the offender out and pushes him towards a criminal subculture, with reintegrative shaming, which condemns the act but then welcomes the offender back into the community. Howard Zehr (Changing Lenses, 1990) contrasted the retributive lens (what law was broken, who did it, what punishment is deserved) with the restorative lens (who was harmed, what they need, and whose obligation it is to meet those needs).
Restorative and therapeutic ideas in Indian criminal law ▪ Plea bargaining. Introduced into the CrPC in 2005 for less serious offences, and retained in the BNSS, it allows a negotiated disposal that can include compensation to the victim. ▪ Victim compensation. Formerly Section 357A CrPC (inserted in 2009) required every State to maintain a victim compensation scheme; the scheme continues under the BNSS. ▪ Community service. Section 4(f) BNS makes community service a form of punishment for the first time, for certain minor offences such as defamation and a first-offence petty theft where the property is restored. ▪ Attempted suicide. Section 115 of the Mental Healthcare Act, 2017 presumes that a person who attempts suicide is under severe stress and shall not be tried and punished, in effect decriminalising the attempt (formerly Section 309 IPC) and requiring the State to provide care. The BNS does not reproduce the general offence. |
Gian Singh v State of Punjab Supreme Court of India, 2012 (3 judges) The Court held that the High Court's inherent power (formerly Section 482 CrPC) can be used to quash criminal proceedings on a compromise between offender and victim even in non-compoundable offences, where the dispute is predominantly private or civil in character, as in commercial, matrimonial or family disputes. It is not available for heinous and serious offences such as murder, rape and dacoity, which affect society at large. The case recognises a restorative logic: where the parties have repaired the relationship, prosecution may serve no purpose. |
9. Transformative Constitutionalism and Constitutional Morality
Transformative constitutionalism sees a constitution not merely as a charter that limits power but as a long-term programme for transforming an unequal society's political and social institutions and power relations in a democratic, participatory and egalitarian direction. The term was coined by Karl Klare in 'Legal Culture and Transformative Constitutionalism' (1998), writing about South Africa; Indian courts use it for a Constitution meant to break with caste, gender and colonial hierarchies.
Constitutional morality is older. The English historian George Grote, in his History of Greece, described it as a paramount reverence for the forms of the constitution, combined with freedom of open speech and criticism of those in authority. Dr B.R. Ambedkar quoted Grote in the Constituent Assembly on 4 November 1948, while moving the Draft Constitution, to argue that the form of administration must be appropriate to the form of the Constitution. He warned: 'Constitutional morality is not a natural sentiment. It has to be cultivated.' Our people, he added, have yet to learn it. Recent courts have used the idea in two senses: as respect for constitutional institutions and conventions, and as the substantive values of the Constitution (liberty, equality, dignity), which prevail over popular or societal morality.
National Legal Services Authority v Union of India Supreme Court of India, 2014 The Court recognised transgender persons as a third gender with the right to self-identify their gender, and held that discrimination on the ground of gender identity violates Arts. 14, 15, 16, 19 and 21. Parliament followed with the Transgender Persons (Protection of Rights) Act, 2019. A leading example of the Constitution used to transform an entrenched social hierarchy. |
Navtej Singh Johar v Union of India Supreme Court of India, 2018 (5 judges) The Court read down Section 377 IPC to exclude consensual sexual acts between adults. The judges described the Constitution as transformative, and held that constitutional morality, not societal or majoritarian morality, is the standard by which laws are tested. Suresh Kumar Koushal (2013) was overruled. |
Manoj Narula v Union of India Supreme Court of India, 2014 (5 judges) Asked to bar persons facing serious criminal charges from appointment as ministers, the Court declined to add a disqualification not found in the Constitution, but invoked constitutional morality and constitutional trust: the Prime Minister and Chief Ministers are expected not to advise the appointment of such persons. |
Government of NCT of Delhi v Union of India Supreme Court of India, 2018 (5 judges) Holding that the Lieutenant Governor is ordinarily bound by the aid and advice of the elected Council of Ministers, the Court relied on constitutional morality, constitutional trust and collaborative federalism: constitutional functionaries must work in the spirit of the Constitution, not merely its letter. |
Family | What it is chiefly after | Leading names and Indian examples |
|---|---|---|
Critical theories | To expose the politics and power hidden in law | Kennedy, Unger, Tushnet; critical race theory (Bell, Delgado, Crenshaw) |
Economic approach | To judge and shape law by efficiency | Coase, Calabresi, Posner; Swiss Ribbons (2019) |
Healing and repair | To measure law by its effect on wellbeing and relationships | Wexler and Winick; Braithwaite, Zehr; Gian Singh (2012) |
Constitutional renewal | To use law to transform an unequal society | Klare; Ambedkar; NALSA (2014), Navtej (2018), Manoj Narula (2014) |
10. Criticism and Evaluation
Weighing the modern theories ▪ CLS: critique without construction. Critics say CLS shows that law is politics but offers little to put in its place, and that its indeterminacy thesis is overstated, since most legal questions are settled enough to plan a life around. ▪ CLS and rights. Its critique of rights was answered by critical race and feminist scholars, who showed that rights can be tools of the weak as well as masks for the strong. ▪ Law and economics. Efficiency is not the only value; wealth maximisation ignores distribution and rights (Dworkin), and the rational actor is often unrealistic. ▪ Therapeutic and restorative approaches. Humane, but questioned on consistency, on pressure on victims to reconcile, and on the rights of the accused. ▪ Transformative constitutionalism and constitutional morality. Critics ask whether an open-ended idea of constitutional morality gives unelected judges too much power to impose their own values. |
Memory Aid ▪ Analogy: the 'Only road' signboard. CLS shows the hidden roads (false necessity) and asks who put the sign up (legitimation). ▪ Kennedy's two articles: 'Form Is Altruistic, Blackstone is Basic'. Form and Substance (1976) = individualism and Altruism; Blackstone (1979) = the Basic, fundamental contradiction. ▪ 'Unger is Super'. Unger = superliberalism, false necessity, destabilisation rights. ▪ Economics by decade: 60, 70, 73, 80. Coase 1960; Calabresi 1970; Posner 1973; Dworkin's reply 1980. ▪ Ambedkar's date: 4-11-48. Constitutional morality 'is not a natural sentiment. It has to be cultivated.' |
Exam Corner: Likely Questions ▪ What is Critical Legal Studies? Explain its main theses with reference to Kennedy and Unger. ▪ Examine the CLS critique of rights and the reply of critical race theorists. ▪ Write a note on therapeutic jurisprudence and restorative justice, with reference to Indian criminal law. ▪ Explain transformative constitutionalism and constitutional morality with reference to Indian decisions. |
Exam Corner: MCQ Traps ▪ Superliberalism is Unger, not Kennedy. ▪ The fundamental contradiction is Kennedy ('The Structure of Blackstone's Commentaries', 1979). Individualism versus altruism is his 1976 article. ▪ CLS began at the 1977 conference in Madison, Wisconsin, not at Harvard. ▪ Transformative constitutionalism was coined by Karl Klare (1998). Constitutional morality comes from Grote, quoted by Ambedkar. ▪ 'The Problem of Social Cost' (1960) is Coase; 'Is Wealth a Value?' (1980) is Dworkin, a critic of law and economics. |
11. Frequently Asked Questions
Q. What is Critical Legal Studies?
A. A movement that began in 1977 which holds that law is indeterminate and not neutral, that legal outcomes are political choices presented as legal reasoning, and that legal doctrine legitimates existing hierarchies by making them seem natural and necessary.
Q. How do restorative justice and therapeutic jurisprudence appear in Indian law?
A. Through plea bargaining and victim compensation (both retained in the BNSS), community service as a punishment under Section 4(f) BNS, the effective decriminalisation of attempted suicide by Section 115 of the Mental Healthcare Act, 2017, and quashing on compromise under Gian Singh (2012).
Q. What is constitutional morality?
A. Originally Grote's idea of reverence for constitutional forms combined with freedom of criticism, quoted by Ambedkar on 4 November 1948. Indian courts use it both for respect for constitutional institutions (Manoj Narula, NCT of Delhi) and for the Constitution's substantive values prevailing over societal morality (Navtej Singh Johar).
See also: Note 15 (realism), Note 16 (Marxist jurisprudence), Note 17 (feminist jurisprudence), Note 27 (punishment), Note 46 (constitutional doctrines), Note 49 (economic analysis of law).
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