Demystifying Critical Legal Studies

Abstract

This thesis makes the claim that Critical Legal Studies provides a way to demystify law but that Critical Legal Studies is itself mystified. In response to the duality of this claim, this thesis presents a series of demystifications for the (re)use of Critical Legal Studies. The approach taken in this thesis follows the work of Duncan Kennedy and is focused on the US-based Critical Legal Studies. Starting broadly, the introductory chapter presents Critical Legal Studies as a legal-subculture. This framework contextualises the position of the Crits within law schools and the reactions they received from those in the dominant legal culture. This position is analysed through the lens of a moral panic. To categorise the various “Critical Legal Studies”, Chapter One presents a Critical Legal Studies Family Tree. Drawing from the foundational work of Margaret Davies, Costas Douzinas and Adam Gearey. The creation of this structure highlights the decline and death of Critical Legal Studies in the mid-1990s. However, the death does not end Critical Legal Studies, and this thesis argues instead that it creates two US-based Critical Legal Studies: cls1 and cls3. The second chapter analyses where the death of cls1 is discussed with a focus on generalist texts. These accounts of Critical Legal Studies are critically read and it is determined that the death of cls1 is usually ignored or overlooked. In Chapters Three and Four, the death of cls1 and what this means for cls3 is investigated. First via a framework that presents cls1 as haunting cls3. Drawing a literary analogy to Charles Dickens A Christmas Carol, it is argued that cls1 passively haunts cls3, resulting in a constricted and regressive Critical Legal Studies. This haunting is then demonstrated through a comparative reading of a cls1 and cls3 text, addressing the similarities in theme, but the vast differences in application. Having outlined the issues with cls3, this thesis presents a series of critiques on cls1 to see what can be learnt about the original Critical Legal Studies. It is concluded that the pre-Critical Race Theorists provided the most useful critiques. Repurposing the work of Patricia J Williams, the final act of demystification presents a scale to relate cls1 works via their interaction with law or non-law. This thesis argues that the demystification of Critical Legal Studies is a necessary step in reapplying and reusing its tools and approaches to critique contemporary law. The series of demystifications within this thesis provide a foundation for (re)using Critical Legal Studies as an effective mode of critique.