Critical legal studies, feminism and critical race theory

Critical legal studies, feminism and critical race theory Social Theory and Law 336 KiLAW 2012/2013 Dr Myra Williamson

Readings and resources • Davies, M Asking the Law Question 3rd Ed (Sweet and Maxwell, 2008) • Chapter 5 (Critical Legal Studies) • Chapter 6 (Feminism) • Chapter 7 (Critical Race Theory) • This book is in the library on reserve • Lloyd’s Introduction to Jurisprudence – on reserve in the library • Sinha, S Jurisprudence – Legal Philosophy in a Nutshell (West Publishing, 2003) • This book is in my office – relevant pages will be photocopied at left at The Copy Centre • www.wikipedia.org/wiki/Critical_legal_studies - and the links at the bottom of that page to other pages • The Free Dictionary.com – search for ‘Critical Lgal Studies’

Teaching and learning • We are going to spend the next 2-3 lectures discussing Critical Legal Studies, Feminism and Critical Race Theory • They are related or connected ideas • There will be questions in the final exam (both short and long answer) based on this part of the course • There will be an optional ‘bonus’ essay, based on this material, for students who wish to improve their grades – this option will be made available in December, prior to the exam • The main objectives in this topic are: • To learn what Critical Legal Studies, Feminist Legal Theory and Critical Race Theory are all about; • To learn about what they have contributed to jurisprudence; • To consider whether there is any connection between the Arab/Islamic world and these three related areas of Western legal philosophy

Overview • Critical Legal Studies (‘CLS’) was a movement that grew to prominence in the United States in the 1970s and 1980s • It was the intellectual successor of (i.e. it followed on from) Legal Realism • It grew in the period of disenchantment in the post-Vietnam Warmer • Many of the early CLS scholars were influenced by the civil rights movement, the anti-war movement and the fight for women’s rights • The Critical Legal Studies movement does not consist of one, coherent (single) theory but there are some common themes • It had two major offshoots: • Feminist legal Theory: it examines the role of gender in the law • Critical Race Theory: it examines the role of race in the law • These days, CLS has clusters at many law schools around the world • In this slideshow we will look at the basics of CLS and both these offshoots

History • Where did Critical Legal Studies (‘CLS’) come from? • It’s philosophical moorings, or origins, are from American Legal Realism, especially Oliver Wendell Holmes (it shares their obsession with the role of judges and the indeterminacy of law – see below) • Also draws on other philosophers including Karl Marx, Friedrich Engels, Max Weber, Max Horkheimer, Michel Foucalt and Jacques Derrida (among others)

History continued… • There was a conference in 1977 – the Conference on Critical Legal Studies – which is when the movement really took a proper form. The 1977 Conference on Critical Legal Studies in Madison, Wisconsin was the first formal meeting of the ‘Crits’. • CLS essentially arose from a group of students and academics at Yale and Harvard Law Schools in the late 1960s and early 1970s • It’s important to note that the CLS ideas came from a small base of white, male intellectuals at US law schools • For more information on its origins see Davies at pp186-87

Common themes • Although there is no single CLS theory, there are some common themes: • Legal materials do not completely determine the outcome of legal disputes • All law is politics – legal decisions are a form of political decisions (compare with the positivists idea that law and politics are separate from one another) • Law serves the interests of the wealthy and powerful by protecting them against the demands of the poor and the subaltern (i.e. women, ethnic minorities, working classes, indigenous people, the disabled

1.Law is indeterminate • Legal materials (such as case law and statutes) do not completely determine the outcome of legal disputes - they have some impact but other factors are also important • The outcome of a legal dispute will have as much to do with the social context as the legal reasoning • This should be familiar: the CLS thinkers agreed with the Legal Realists’ ideas about the indeterminacy of law, we discussed this idea in the previous topic. They agree that the language of law itself is open to different interpretations – there is not one single interpretation of ‘the law’ in a given case • Examples: the “reasonable” man; the normal words used in statues (e.g.. “vehicle”) – more than one meaning is always possible so the outcome of a case is ‘indeterminate’

1.Law is indeterminate continued… “Law is simply politics dressed up in different garb; it neither operates in a historical vacuum nor does it exist independently of ideological struggles in society. Legal doctrine not only does not, but also cannot, generate determinate results in concrete cases…Legal doctrine can be manipulated to justify an almost infinite spectrum of possible outcomes” Allan Hutchinson and Patrick Monahan, “Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought” (1984) 36 Stanford Law Review 199 at 206

2. All law is politics • CLS theorists argue that law and politics are inseparable (law and politics can’t be separated from each other); Legal decisions are a form of political decisions • Law is not an objective, rational process of impartial decision-making • Instead, it’s just like politics, full of competing interests, it has arbitrary categorizations that are constantly refined and reworked • Judicial decisions depend mainly on the social situation of the judge – so more attention should be paid to the social context of law (the CLS thinkers agreed with the Legal Realists on this point). • They say – judicial objectivity is impossible • They strip judges of their supposedly disinterested role in society • So, CLS scholars try to delegitimize and demystify the law – to remove the cloak of mystery and awe that surrounds the law

3. Law serves the interests of the wealthy and powerful • The legal system, like the political system, serves to maintain the current arrangements (it keeps the “status quo”, which means, the legal system keeps things as they are) • The law perpetuates or continues the established power relations in society • Law is an instrument of oppression used by the powerful and the wealthy to maintain their place and to protect their interests • Law is used by the rich and/or powerful against the poor and/or weak individuals in society

CLS and ‘Liberalism’ – Part I • CLS scholars criticize ‘liberalism’ which they see as the dominant political ideology – certainly, the one that has shaped Western thought in the 20th century • What is ‘Liberalism’? • Basically, the idea of ‘life, liberty and property’, • Liberalism stands for individual rights, private property rights, each man for himself etc… • An emphasis on ‘rights’ has been very important in Western thought • John Stuart Mill: individuals should have the right to do anything so long as it doesn’t harm others – the state shouldn’t involve itself in people’s lives, except to protect some from harming others

CLS and ‘Liberalism’ – Part II • CLS scholars: • Don’t like ‘Liberalism’ and don’t like all this talk about ‘rights’ • They call for more emphasis on the community, not on the individual • They argue that ‘rights’ are ideals that protect the interests of the privileged – in a capitalist society where the ability to defend one’s rights is dependent on the ability to pay, those who have ‘rights’ are the wealthy (the property owners, the business owners) • Liberal rights are a “screen” hiding the true nature of oppression in society • Rights are just part of the ‘alienating’ structure of the law • Rights don’t produce justice – they are just a way of entrenching existing inequalities (e.g. women have the right to vote, but so what? Have they achieved real equality or just a right to vote?) – see the argument of Peter Gabel, discussed in Davies, M Asking the Law Question at pp204-206

Questions… • Do you agree with the main themes of CLS? • Is law indeterminate? • Is law inseparable from politics? • Does law serve the interests of the wealthy and powerful? • Are ‘rights’ just a screen – or do they provide substantive justice • How about here in Kuwait? What would a CLS movement in Kuwait take as it main topics of debate?

What became of CLS? • It is still a movement, with small clusters of CLS scholars in law schools around the world but its influence has waned • In 2003 Duncan Kennedy wrote that “CLS as a political movement has been dead for a number of years but CLS as a legal academic school of thought is very much alive” • It gave birth to other streams of legal thought such as feminism and critical race theory (see below) • There are CLS scholars working in all areas of law including family, international, comparative etc • There are law journals devoted to publishing the research of CLS scholars

Criticism of CLS • CLS does not offer any alternatives – it criticizes and delegitimizes law and demystifies, but it doesn't’t suggest anything better • CLS was a movement begin by white, educated males – perhaps it was captured by this, it failed to attract others, that’s why offshoots arose • CLS writing remained quite abstract and obscure – frequently of little relevance to real problems (see Davies, M Asking the law Question, p195) • CLS’ attack on ‘rights’ and liberalism isn’t correct: rights do achieve something for minorities (see Richard Delgado in Davies at pp206-207) and minorities think there is value in seeking ‘rights’

Feminism and Feminist Legal Theory • What is ‘feminism’? • Feminism is a collection of movements and ideologies aimed at defining, establishing, and defending equal political, economic and social rights for women • A feminist is a person who supports equal rights for women

Feminism – a brief history • Feminism has a long history – but women who fought for women’s rights didn’t always use the term ‘feminist’. Some say that the early activists were not ‘feminists’ – that this term only applies to the modern movement • First wave feminist: 19th and 20th centuries – • Focus on gaining the right to vote – women’s suffrage movements mainly in UK, US and similar countries • E.g.. New Zealand gave women the right to vote in 1893; South Africa in; in the UK, women over 30 who owned property got the vote in 1918; this was extended to all women over 21 in 1928; in the US, women got the right to vote in 1916 via the Nineteenth Amendment to the US Constitution • Second wave feminism: 1960s-present • Focus on gaining legal and social equality for women – ending discrimination • Third wave feminism: 1990s –present • Responding to the failures of the second wave

Feminism – what’s it all about? “Representation of the world, like the world itself, is the work of men; they describe it from their own point of view, which they confuse with the truth” • Simone de Beauvoir The Second Sex as reproduced in Davies at p213 What does this mean to you? “Men have made the legal world in their own image, confusing it, as de Beauvoir says, with the absolute truth” – Davies, p215

Feminism(s) Some general points about feminism: • There isn’t ONE feminism, but many – white, middle-class women from developed countries have a different perspective than other women (e.g. women from other ethnic groups, from developing countries, from a religious minority, etc.) • The aim of feminism, generally, is transformation • Feminism is a political as well as a legal agenda Definitions? • Margaret Davies: Feminism aims for a social and political environment in which women and men of all ethnicities, class backgrounds, sexualities and abilities are equally valued – Davies, p220 • Barbara Smith: “Feminism is the political theory and practice that struggles to free all women: women of colour, working-class women, poor women, disabled women, lesbians, old women – as well as white, economically privileged, heterosexual women…” in Davies at pp220-21

Different types of feminism • Feminist jurisprudence has many schools of thought within it (here are some): • Liberal feminism: the central goal is the formal equality of women • Assimilationist feminism: more extreme than liberal; argues for a non-sexist society where no distinctions are made on the basis of sex; physical dissimilarities have no significance • Bivalent or difference or special treatment feminism: emphasizes that ‘equality’ forces women to aim to be like men; it therefore emphasizes the differences between men and women; women deserve special treatment because they are different from men • Radical feminism: views women as a class (not as individuals, as in liberal feminism) and it says that women as a class have been dominated by another class, i.e., men. • Post-modern feminism: it rejects the idea that there is “a woman’s point of view”, or a single theory of equality for all women’. ‘Woman’ has many manifestations; it focuses on the situated realities of women – practical solutions to concrete situations

Liberal feminism • “Liberal feminism” says women’s rights and opportunities should mirror men’s rights and opportunities • Women should be free to enter professions of their choice, should be involved in political life, should participate in educational institutions, own property etc just as men do • The goal is usually law reform to allow women’s full participation and to remove discrimination • Equal status and equal rights for women are the goal - because women have as much capacity for reasoning as men • Mary Wollstonecraft put forward these ideas in the late 18th century – she argued that the “rights of man” should be extended to include women (see Wollstonecraft Vindication of the Rights of Women)

Criticism of “Liberal feminism” • The law reform that has been achieved has not resulted in substantive equality • Concentrating on the “public” role of women does nothing to alleviate the problems women suffer in the home (e.g. domestic violence) • It doesn’t challenge the overall system - the legal system itself is run by men and is based on male values (individualism, adversarial dispute resolution, independence) – the system ‘speaks’ to me • If women have to be like men to be treated equally, then equality itself is repressive

Radical feminism • The question is not whether men and women are the same or different; sex is a hierarchy – men have power and women do not • Gender (whether one is male or female) is a question of power • Main thinker in this area is Catherine MacKinnon (see analysis and extracts in Davis at pp240-52) • Criticism 1: seeing women as a class overlooks the different experiences of different women • Criticism 2: seeing women as a class that is dominated by men leaves little room for hope – these differences will always exist

Task: Feminism, Islam and Arabs • Has feminism featured in Arab countries? • Which countries, when and why? • Do any Muslim women claim to be feminists? Is there such a thing? What does it mean ‘ Muslim’ and ‘feminist’? • What is different about Muslim women’s experiences that set them apart from Western women? • Does Western feminism have anything to offer non-Western women? Are the social and political environments so different that Western values cannot be imposed on non-Western cultures? • Further reading: see Davies at 262-63

Race, culture and ethnicity • Liberal and radical feminism have been criticized for ignoring women from minority groups who have their own, special experiences • White, privileged, heterosexual women were at the front of feminism – but what of Asian women, Black women, Hispanic women, disabled women? • They have 2 ‘oppressions’ – this is sometimes called a system of oppressions which intersects with gender oppression

Critical Race Theory • What is “Critical Race Theory”? • It is concerned with the role of race in law • CRT is concerned with the idea of inescapable and inherent racism in the American legal system • Its first workshop was held in 1989 • It argues that the perception and experience of the world are determined by one’s position in the race structure of society • It has a different methodology: instead of analysis, they often use narrative, story-telling • It hasn’t received widespread acceptance in the US – its still mainly a fringe area of academic thinking

Conclusion • We have surveyed Critical Legal Studies – probably the first critical movement of recent times that has challenged the predominantly positivist tradition of legal theory • CLS saw law as a political instrument which shapes our perception of ‘truth’ • We looked at two main offshoots of CLS – feminist legal theory and critical race theory • Is CLS a disparate group of scholars or do they share a number of important ideas and approaches? Do they, together, amount to a new approach to legal scholarship?

Critical legal studies, feminism and critical race theory