Critical Legal Studies January 23, 2013 Leah Gardner Caroline Bélair Rachel Davidson

1. Critical Legal Studies January 23, 2013 Leah Gardner Caroline Bélair Rachel Davidson Molly Churchill

2. Assigned Readings Jonathan Turley, « The Hitchhiker’s Guide to CLS, Unger and Deep Thought », (1987) 81 Northwestern University Law Review 593. Jennifer Nedelsky, « Reconceiving Rights as Relationship » dans Jonathan Hart & Richard W. Bauman (dir.), Explorations in Difference: Law, Culture, and Politics, Toronto, University of Toronto Press, 1996. Pour aller plus loin: Patricia J. Williams, « Alchemical Notes: Reconstructing Ideals from Deconstructed Rights » (1987) 22 Harv. C.R.-C.L.L. Rev. 401.

3. Critical Legal Studies (CLS)

4. Historical Context - Vietnam War (1955-1975) - Civil Rights Movement - 1977: official start of the CLS movement - Foundations: - Critical Marxism - Legal Realism (1900-1960s) - Holmes (late 19th century) - Recognize "real" way in which judges make decisions Rosa Parks

5. CLS Critique of Blackstone's Commentaries by Kennedy (1979) A Treatise on the common law of England, 18th century

6. Key elements of CLS - Legal language and institutions that appear neutral actually mask relationships of power - Law = a tool used by the powerful to maintain the status quo - There is no single truth: multitude of alternatives - "It has been said that if Kennedy is the Pope of CLS, then Unger is the Christ figure" Turley, p. 14

7. CLS critique of major legal theories or approaches - Formalism - Positivism - Rationality - Liberalism

8. CLS rejects Formalism - Formalism: - Legal reasoning = science - Use of formal rules to resolve dispute - Legal autonomy - CLS + realists highlight role of other factors in adjudication: effects of rules, values, morals and social, political and economic context, personal factors...

9. CLS rejects Positivism - Think back to the Hart-Fuller debate - Positivism: - Morality plays no part in defining law - Scientific or empirical approach to law

10. CLS rejects Rationality - Rationality: - Belief that there is a rational foundation for legal doctrine and development - CLS: - rejects pure reason as foundation for law - questions use of reason to legitimize law - recognizes role of passion, will, etc.

11. CLS rejects Liberalism - Liberalism: - "precisely what liberalism is has been a source of disagreement" Turley, p. 9 - Freedom to pursue own interest - 2 particular aspects critiqued by CLS: - Rights talk - Neutral adjudication

12. CLS rejects Liberalism: Critique of Rights - CLS Critique of Rights: 1) Rights are individualistic 2) Rights conceal political issues 3) Rights distance individuals 4) Rights serve political and economic requirements of liberalism (ex. Right to K) - Critiques are revisited in the Nedelsky and Williams articles

13. Trashing Think expose, expose, expose! - the political, nonneutral nature of law - illegitimate power structures - the ideological underpinnings of legal system “One must start by knowing what is going on, by freeing oneself from the mystified delusions embedded in our consciousness by the liberal worldview” A. Freeman, in Turley, p. 11

14. CLS Tools - Deconstructionism - no text has an objective meaning - language is inherently non neutral - De-Reification - Reification: Concept is taken out of context, distorted/co-opted - Contextuality - Recognize context in which law takes place

15. Summary

16. Trashing Exercise: It's Fun! "[T]he principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals." Blackstone on the Absolute Rights of Individuals (1753)

18. Roberto Mangabeira UngerThe "Christ of CLS" Philosopher, Social Theorist, Politician

19. Core Concepts • duality • neutrality • contextuality • context-breaking • plasticity • anti-necessetarianism (false-necessity) • the super-liberal society

20. Critiques of Unger -Too optimistic: Van Zandt -Stability is not all that bad: Sunstein -Not pragmatic enough to achieve change: West, Cornell -Too focused on individual: Cornell - Omission of plight of oppressed people: West

21. CLS critiques of rights - Too individualistic - Obfuscate real political issues - Alienate and distance people from one another - Serve the political and economic requirements of liberalism

22. Patricia Williams "Reconstructing Ideals from Deconstructed Rights" - Critique of CLS - Little minority and grassroots membership and input - Message not accessible or applicable to those who need it most - Belief that rights are counterproductive to social change ignores the degree to which rights-assertion has achieved social change - For African Americans, rights are powerful symbolic tool - Instead of abandoning rights, we need to give them away as gifts

23. Nedelsky - Rights as Relationship Nedelsky's outline: • Justifying Constitutional Rights • Rights as Collective Choices • Beyond the "Pure Democracy" Critique • Critiques of "Rights Talk" • Applying "Rights as Relationship"

24. Nedelsky - Rights as Relationship Move away from...

25. Nedelsky - Rights as Relationship By... For example... ...understanding rights as collective choices, with mutable definitions/meanings.

26. Nedelsky - Rights as Relationship Canadian Charter, s. 15 And...

27. Nedelsky - Rights as Relationship ...By... "Democracy has never been the sole or even primary value of either the U.S. or Canada, and it could never be the sole basis for a good society" (p. 6) For example... ...recognizing democracy is not our sole societal value.

28. Nedelsky - Rights as Relationship Autonomy understanding it in terms of relationship helps us "begin to rethink what it means conceptually and institutionally for autonomy to serve as a measure of democratic outcomes" (p. 7)

29. Nedelsky - Rights as Relationship Implication: Focus on relationships to foster autonomy. By...

30. Nedelsky - Rights as Relationship ...Understanding that rights serve to structure relationships - and then making this understanding central to discussions about rights. "What rights in fact do and always have done is construct relationships - of power, of responsibility, of trust, of obligation" (p. 13).

31. Nedelsky - Rights as Relationship Keeping relationship central to our discussion of rights allows us to address 3 main concerns CLS scholars (and others) have raised about "rights talk"...

32. Nedelsky - Rights as Relationship Critiques of "Rights Talks" 1. "rights" are too individualistic "It is my hope that the notion of rights can be rescued from its historical association with individualistic theory and practice."

33. Nedelsky - Rights as Relationship Critiques of "Rights Talks" 2. Rights obfuscate what is really at stake Nedelsky: A focus on relationship helps "loosen up the existing reification" (p.17)

34. Nedelsky - Rights as Relationship Critiques of "Rights Talks" 3. Rights are alienating and distancing; they act as barriers between people Nedelsky: A focus on relationship helps us see "that our 'private rights' always have social consequences" (p. 17).

35. Nedelsky - Rights as Relationship Implication: change our understanding of constitutionalism "My idea of Constitutionalism is to make democracy accountable to basic values, to have mechanisms of ongoing dialogue about whether the collective choices people make through their democratic assemblies are consistent with their deepest values" (p. 20).

36. Nedelsky - Rights as Relationship Major point of agreement with CLS: • the "rights bearing individual" at the heart of liberal political thought does a disservice to all and dehumanizes us Major points of agreement with Patricia Williams: • discarding the idea of rights is not the solution • recognition of (inter)dependence (Williams, p.429) • widening understanding of impact of private rights (Nedelsky, p. 17; Williams, p. 432)/

37. Nedelsky - Applications/questions • Torrito c. Fondation Lise T.: How can we imagine the discussion in this case about right to privacy being different if it were conceded that rights are primarily about structuring relationship? • Does Nedelsky's reconceptualization of rights address concerns raised by people such as Andrew Petter in the lead-up to 1982 about Charter rights hiding the problems of wealth and power disparities?

38. Discussion Questions • Critics have said that Unger is too optimistic and theory-based. In a recent op-ed in The Globe and Mail, Jeffery Simpson criticized the Idle No More movement, stating that "too many first nations people live in a dream palace." Does 'dreaming' have a role to play in creating a more just legal system or is it counter-productive? • How useful is the concept of "rights"? What are its pros and cons?

39. Discussion Questions • Patricia Williams starts out her piece contrasting her experience as a Black female lawyer and academic searching for an apartment to that of her White male colleague. Both were looking "to establish enduring relationships with the people in whose house we would be living; [they] both wanted to enhance trust of ourselves and to allow whatever closeness, whatever friendship, was possible." Williams explains, however, that because of their respective social locations, the way they sought to establish such a relationship was polar opposite. What implications (if any) does such a realization have for Nedelsky's proposal to reconceive rights as relationship?