In the United States my work has often been associated with a tendency in legal thought called “Critical Legal Studies” even though legal theory represents only a small and subsidiary part of my thinking and writing. In the 1970s some of us came up with the label “critical legal studies movement,” and used it to disrupt the post-New Deal consensus then dominating the American legal academy.
During its heyday “critical legal studies” aroused the anger of groups in the American establishment unresigned to seeing any part of the formation of American elites disturbed by dissidents and troublemakers. “Critical legal studies” has long ceased to exist as an organized movement. However, one of its enduring consequences has been that legal analysis as taught in the leading American law schools is now the only social discipline not under the control of a centrist-conservative orthodoxy of method and conception. Many of these law schools have reverted to type and gone back to sleep, but the consensus has been neither reestablished nor replaced. In “What Should Legal Analysis Become?” I suggest how best to make use of this opening, in the rest of this world as well as in the United States.
Published in 1983, “The Critical Legal Studies Movement” is a revised and expanded version of a talk given in 1982. It is a programmatic intervention in legal thought: a proposal for the direction that the then nascent movement of critical legal studies should take, not a description of what people engaged in this movement thought, said, and wrote. My proposal fell on deaf ears. Critical legal studies preferred, for the most part, to gravitate around familiar themes: the radicalization of the idea of doctrinal indeterminacy, a neo-marxist functionalist approach to the place of law in society, and identity politics. In my own work, the expanded and transformed doctrinalism explored in this little book would later give way to an attempt to turn legal thought into a practice of institutional imagination. The “internal criticism” tried out here prefigured other, less narrowly doctrinal efforts to recover, from the bottom up and from the inside out, the vision of alternative possibilities. The dominant styles of legal analysis had sacrificed this vision to the humanization of the inevitable.