Critical thinking studies
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Considered «the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective», critical legal studies was committed to shaping society based on a vision of human personality devoid of the hidden interests and class domination that CLS scholars argued are at the root of liberal legal institutions in the West. The abbreviations «CLS» and «Crit» are sometimes used to refer to the movement and its adherents. This section does not cite any sources. American legal realism, as a distinct scholarly movement CLS fully emerged only in the late 1970s. Many first-wave American CLS scholars entered legal education, having been profoundly influenced by the experiences of the civil rights movement, women’s rights movement, and the anti-war movement of the 1960s and 1970s. The British critical legal studies movement started roughly at a similar time as its American counterpart. Critical legal studies had its intellectual origins in the American legal realist movement in the 1930s.
Prior to the 1930s, American jurisprudence had been dominated by a formalist account of how courts decide cases, an account which held that judges decide cases on the basis of distinctly legal rules and reasons that justify a unique result. The influence of legal realism unsettled American jurisprudence for decades. Critical thinking studies critical legal studies movement emerged in the mid-1970s as a network of leftist law professors in the United States who developed the realist indeterminacy thesis in the service of leftist ideals. According to Roberto Unger, the movement «continued as an organizing force only until the late 1980s.
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Its life as a movement lasted for barely more than a decade. Duncan Kennedy, a Harvard law professor who along with Unger was one of the key figures in the movement, has said that, in the early days of critical legal studies, «just about everyone in the network was a white male with some interest in 60s style radical politics or radical sentiment of one kind or another. Some came from Marxist backgrounds—some came from democratic reform. It’s a scholarly literature and it has also been a network of people who were thinking of themselves as activists in law school politics. Initially, the scholarly literature was produced by the same people who were doing law school activism.
Critical legal studies is not a theory. It’s basically this literature produced by this network of people. I think you can identify some themes of the literature, themes that have changed over time. Scholars affiliated with critical legal studies often identified with the movement in several ways: by including in their articles an opening footnote mentioning the Conference on Critical Legal Studies and providing the organization’s contact information, by attending conferences of the CCLS, and by citing the work of fellow critical legal studies scholars.
A 2011 collection of four volumes edited by Costas Douzinas and Colin Perrin, with the assistance of J-M Barreto, compiles the work of the British Critical Legal Studies, including their philosophical mentors. Today, a new perspective is born in Brazil, in the context of Latin America, so called the Theory of Realistic Humanism as a Critical Theory in the Theory of Law. Roberto Unger, a key member of critical legal studies whose influence had continued to be far-reaching in the decades following the movement’s decline, has written that the founders of critical legal studies «never meant it to become an ongoing school of thought or genre of writing. That circumstance was the dominant practice of legal analysis which Unger calls the «method of reasoned elaboration». In accordance with the Critical rationalism the German jurist Reinhold Zippelius uses Popper’s method of «trial and error» in his ‘Legal Philosophy’. Secondly, there is the idea that all «law is politics».
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