Many of the theories outlined in the previous five chapters are greeted with scepticism by those who adhere to what, in the broadest sense, may be called critical legal theory. This wing of legal theory generally spurns many of the enterprises that have long been assumed to be at the heart of jurisprudence. And it 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). Each of these spheres of critical thought are briefly examined in this chapter.
The primary purpose of critical legal theory, it is reasonable to assert, is to contest the universal rational foundation of law which, it maintains, clothes the law and legal system with a spurious legitimacy. Nor does critical legal theory accept law as a distinctive and discrete discipline. This view, it alleges, portrays the concept of law as autonomous and determinate – independent from politics and morality – which it can never be.
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 addition, as many of the adherents of critical legal studies (CLS) claim, the law is neither neutral nor objective. To achieve neutrality, the law employs several fictions or illusions. Most conspicuously, it vaunts the liberal ideal of equality under the rule of law. But this, in the view of CLS, is a myth. Social justice is a hollow promise.
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Author(s): Raymond Wacks