Rights in Critical Legal Studies

By Omid Eliott Yeganeh

Introduction

In the wake of the Civil Rights era and the Vietnam War, Critical Legal Studies (CLS) emerged across American law schools as an avowedly ‘left-wing’ school of legal theory (Kennedy 1997, 8-11; Tushnet 1986, 505; Unger 1986, 1-5). From its origins, the movement was devoted to the critique of prevailing orthodoxy in legal academia. Key aims have included challenging the supposed moral neutrality of legal doctrine, promoting transparency in legal culture, and highlighting the sociological and empirical consequences of legal practice and theory.

One especially controversial target of the movement has been legal rights, whose political efficacy has been met with a suspicion from leading figures within CLS. This posture of skepticism towards rights has occasioned a body of literature known as the “critique of rights.” Participating in this discourse from an anti-CLS stance, David Andrew Price wrote for the Cambridge Law Journal that “[the Critical Legal Studies movement] is marked by a rejection of ‘legal rights’ as a desirable or even possible means of protecting individuals from government power” (1989, 283). That claim, which has somehow attained the rank of settled orthodoxy both within and without the movement, is based on a misreading (or non-reading) of seminal CLS texts.

This article puts a challenge to Price’s proposition on three distinct levels. (A) I begin by arguing that CLS is not marked by any given attitude towards rights. (B) Building on this argument, I add that even the most unsympathetic accounts of rights in CLS do not go as far as rejecting legal rights. (C) Finally, I argue that Price’s proposition overlooks important elements of the critique of rights, including the intrinsic (rather than instrumental) dimension of that critique, its emphasis on the language of legal rights rather than their substance, and the contextual significance of CLS’ postmodern leanings. I conclude that substantive legal rights hold a much more important place in CLS literature than its detractors (and sometimes its adherents) have suggested.

A. Diversity within CLS

It is crucial to stress, in the first instance, that the Critical Legal Studies movement is not “marked” by any particular attitude towards rights.While this paper is not the forum to litigate the precise meaning of CLS, it shall proceed on several expedient assumptions in that respect. Those who self-identify as members of CLS (Crits) will be forthrightly accepted as such, as will those treated as Crits by others within the movement. I also take for granted the distinction between CLS and the broader umbrella of Critical Theory (Stewart 2020, 148).

With those preliminaries set out, I may turn to charting the varying accounts of rights within CLS. The following typology places prominent Crits into three loose groupings in descending order of rights-aversion.

A Typology of CLS Rights-Stances (See Author's Notes, 2)

Rights-Averse Crits: Peter Gabel & Duncan Kennedy (1984, 33-34), William Simon (1985, 2, 34), Joseph Singer (1982, 1058-1059), Mark Tushnet (1984, 1386).

Rights-Ambivalent Crits: Morton Horwitz (1988, 396-397), Jeffrey Blum (1990, 71), Paul Brest (1981, 1096), Peter Fitzpatrick (2013, 100, 103-104), Allan Hutchinson & Patrick Monahan (1984, 1490), Mark Kelman (1984, 296, 302).

Rights-Affirming Crits: Edwin Baker (1974, 56), Anthony Chase (1984, 684-685), David Kairys (1982, 163), Joseph King & Zygmunt Plater (1973), Aviam Soifer (1979, 706), David Trubek (1986, 225-226, 229-230), Roberto Unger (1986, 37-40).

While my table cannot convey the breadth of scholarship within CLS, it provides a broadly representative overview of the dominant currents within the movement. If nothing else, the table illustrates a degree of nuance within CLS (Tushnet 1986, 510; Crenshaw 1988, 1350; Rhode 1990, 617) which Price overlooks.

Consider, to that effect, Fitzpatrick’s (2013, 103) concession that there have been “a multitude of instances where human rights have been drawn on effectively in the cause of the oppressed,” or Horwitz’s acknowledgment that “[o]ur modern, broad conceptions of rights have transformed our legal culture for the better, often providing legitimacy and entitlement to the weak and the powerless far beyond what their actual political power could have produced” (1988, 395).

Unger, a founding-member of CLS, dedicates a significant part of his seminal Critical Legal Studies Movement to a comprehensive account of the place reserved for legal rights in his political utopia, wherein he proposes a class of “immunity rights” which “establish the nearly absolute claim of the individual to security against the state” (1986, 36-57).

To claim that an intellectual current is “marked by” a particular stance requires that the relevant position appears with at least some consistency within its academic canon. Yet as the above analysis demonstrates, a considerable number of Crits believe that legal rights are a possible and desirable means of protecting individuals from government power (See Author's Notes, 3), such that CLS cannot be said to be marked by the opposite view in that respect (See Author's Notes, 4).

B. The Trouble with Rejection

Price is additionally wrong to suggest that the critique of rights amounts to a “rejection” of legal rights. I will take Price at his highest and rely only on the writings of rights-averse Crits, to show that even they do not “reject” rights.

Consider for these purposes Tushnet, who denies “that the idea of rights is on balance actually harmful” (1984, 1384) and concedes that “guarantees of participation in political action” (which he calls “rights”) are “obviously attractive” (1396).

Kennedy, in turn, stresses that “[t]here is nothing in the critique [of rights] that might suggest a reduction in the rights of citizens vis-à-vis their governments” (1997, 334). Elsewhere, Kennedy has proposed “working at the slow transformation of rights rhetoric… rather than simply junking it” (1981, 506).

The term “rejection” connotes considerable repudiatory weight. To say that one “rejects” a particular concept is to say that one wholly dismisses it—rejection requires more than mere critique. To provide an analogy, Crits are commonly critical of State power (See Gabel and Kennedy 1984, 26), but they do not ipso facto become anarchists. While some Crits exhibit robust hostility towards legal rights, few, if any, can be described as “rejecting” them.

More fundamentally, the post-modernist tendencies of (some) Crits make them broadly disinclined to make truth-statements of the sort Price attributes to them (Kennedy 1997, 11, 19). It is not clear, for example, how the “rejection” of legal rights can be reconciled with the CLS recommendation to “think about the law in a way that will allow students to enter into it, to criticize without utterly rejecting it” (Kennedy 1982, 599-600). Therein lies Price’s second error.

C. From Errors to Oversights

Price’s proposition is not only wrong—it is also incomplete. Whereas the foregoing sections have sought to identify mistruths in Price’s postulate, the following paragraphs will attempt to illuminate three additional omissions in his account of CLS.

Price’s first oversight is his purely instrumentalist framing of the critique of rights, which fails to acknowledge that Crits often stress the intrinsic, rather than instrumental deficiencies of legal rights. Consider, in this respect, Tushnet’s seminal exposé of the rights-critique, which contains four key arguments: (1) that the content of rights is context-dependent, and therefore unstable; (2) that rights, by their nature, cannot produce determinate outcomes; (3) that rights convert meaningful experiences into empty abstractions; and (4) that the use of rights in discourse impedes political progress (Tushnet 1984, 1363-1364). Of these four arguments, only the last is purely instrumental—the first three have an intrinsic bend. Tushnet does not merely say that rights have bad consequences—he is more crucially stressing that rights are somehow internally deficient (See also Kennedy 1982, 598). Price’s account of the critique omits this nuance.

Price’s second oversight is his failure to distinguish between the CLS critique of rights-doctrine on the one hand, and rights-discourse on the other. By failing to specify its (diverse) targets, Price leads us to believe that Crits focus on the substantive concept of legal rights, rather than the use of the terminology of rights in legal and political discourse. In fact, the opposite is true. Kennedy for example is critical of “rights discourse” but endorses the “radical expansion of citizen rights against the state” (Kennedy 1997, 334). Tushnet similarly launches a semantic rather than substantive critique of rights, as evidenced by his repeated references to “rights-talk”, “rights discourse”, and the “language/rhetoric of rights” (See Author's Notes 5; 1984, 1364) This facet of the rights-critique is absent from Price’s commentary.

Price’s third oversight is his failure to discern that Crits cannot reject rights “as a desirable or possible means of protecting individuals from government power” if they do not believe in the framing of “protecting individuals from government power” to begin with. Price overlooks the possibility that Crits do not believe in rights precisely because rights presuppose a normative tension between individual interests and government power (Tushnet 1984, 1392; Simon 1985, 29). As Kennedy puts it: “[t]his framework is, in itself, a part of the problem rather than of the solution” (1982, 598).

Conclusion

Taken as a whole, Price’s proposition is hyperbolic at best, and patently wrong at worse—it is a reductive account of CLS and of the critique of rights. There are many valid criticisms one might want to direct at CLS. Consider, to this effect, the regrettable failure of rights-averse Crits to articulate viable alternatives to legal rights (See Author's Notes, 6), or the undue degree of abstraction at which their critique of rights operates (See Author's Notes, 7). Crucially, however, none of this justifies the constant mischaracterizations endured by Crits.

While this paper may seem to operate as a vindication of CLS, I submit, in closing, that it is better understood as a meta-critique. The goal here has not been to defend Crits, but to attack their attackers. If these arguments lend strength to CLS, they do so incidentally and lack the force of an endorsement. The foregoing arguments, I hope, reveal a characteristic failure to engage authentically with CLS literature, evidenced by detractors often resorting to inflammatory exaggerations and/or generalizations of critical legal thought.

Author's Notes

1. This article draws extensively on coursework submitted as part of my Jurisprudence studies at the University of Oxford; for that reason, much credit goes to the influential seminars dispensed by Dr. Tom Adams. I am grateful also to Moayad Karar and Shivanii Arun for their considered contributions to the later drafts of this piece.
2. Authors included in this table have either associated themselves with CLS or appear in references to the movement (See Kennedy & Klare 1984, 461).
3. Rights-averse Crits often acknowledge that their views are minoritarian/controversial (See Tushnet 1986, 510, 516).
4. Elsewhere in his work, Price curiously acknowledges that "it is hazardous to refer to 'the' CLS position on a particular question" (1989, 283).
5. By my count, there are at least 25 combined references.
6. The point is made by various minority-critics: e.g. Crenshaw 1988, 1366-1367; Rhode 1990, 636. Some Crits are hostile to the very concept of alternatives: e.g. Tushnet 1984, 1398; Freeman 1981, 1230-1231; Simon 1984, 502. Others provide merely semantic substitutes: e.g. Tushnet 1984, 1394. Others still propose vague and anarchistic alternatives: e.g. Gabel & Harris 1982, 376.
7. Minority-critics have generally stressed that "we need less reliance on abstract principles and more on concrete experience" (Rhode 1990, 631). This has led scholars at the margin of CLS to conclude that: ‘[c]ritical legal theorists have built an argument of great force and yet one which... is sometimes blind to the significance of legal protections for certain fundamental human rights" (Sparer 1984, 510).

Sources

Baker, Edwin. “Utility and Rights.” Yale Law Journal 84 (1974): 39. https://www.jstor.org/stable/795506.

Blum, Jeffrey. “Critical Legal Studies and the Rule of Law.” Buffalo Law Review 38 (1990): 59. https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1661&context=buffalolawreview.

Brest, Paul. “The Fundamental Rights Controversy.” Yale Law Journal 90 (1981): 1063. https://core.ac.uk/download/pdf/160248986.pdf.

Chase, Anthony. “A Challenge to Workers' Rights.” Nova Law Journal 8 (1984): 671. https://core.ac.uk/download/pdf/84411243.pdf.

Crenshaw, Kimberlé. “Race, Reform, and Retrenchment.” Harvard Law Review 101 (1988): 1331. https://harvardlawreview.org/wp-content/uploads/2020/09/Crenshaw-Race-Reform-and-Retrenchment-pdf.pdf.

Fitzpatrick, Peter. “Decolonizing Law and Human Rights.” RECHTD 5 (2013): 97. https://eprints.bbk.ac.uk/id/eprint/9507/1/9507.pdf.

Freeman, Alan D. “Truth and Mystification in Legal Scholarship.” Yale Law Journal 90 (1981): 1229. https://openyls.law.yale.edu/bitstream/handle/20.500.13051/16067/59_90YaleLJ1229_April1981_.pdf?sequence=2.

Gabel, Peter, and Paul Harris. “Building Power and Breaking Images.” NYU Review of Law and Social Change 11 (1982): 369. https://socialchangenyu.com/wp-content/uploads/2017/12/Peter-Gabel-and-Paul-Harris_RLSC_11.3.pdf.

Horwitz, Morton. “Rights.” Harvard Civil Rights-Civil Liberties Law Review 23 (1988): 393. https://heinonline.org/HOL/P?h=hein.journals/hcrcl23&i=403.

Hutchinson, Allan, and Patrick Monahan. “The ‘Rights’ Stuff.” Texas Law Review 62 (1984): 1477. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646935.

Kairys, David. “Freedom of Speech.” In The Politics of Law: A Progressive Critique, edited by David Kairys, 163. New York: Pantheon, 1982. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=727903.

Kennedy, Duncan. A Critique of Adjudication (fin de siècle). Cambridge, MA: Harvard University Press, 1997. https://erikafontanez.com/wp-content/uploads/2015/08/kennedy-a_critique_of_adjudication.pdf.

Kennedy, Duncan. “Critical Labor Law Theory: A Comment.” Industrial Relations Law Journal 4 (1981): 503. https://core.ac.uk/download/pdf/28950728.pdf.

Kennedy, Duncan. “Legal Education and the Reproduction of Hierarchy.” Journal of Legal Education 32 (1982): 591. https://mohsenalattar.org/wp-content/uploads/2017/10/Legal-Education-and-the-Reproduction-of-Hierarchy_J.-Leg.-Ed..pdf.

Kennedy, Duncan, and Peter Gabel. “Roll Over Beethoven.” Stanford Law Review 36 (1984): 1. https://duncankennedy.net/wp-content/uploads/2024/01/roll-over-beethoven.pdf.

Kennedy, Duncan, and Karl Klare. “A Bibliography of Critical Legal Studies.” Yale Law Journal 94 (1984): 461. https://www.jstor.org/stable/796234.

Kelman, Mark. “Trashing.” Stanford Law Review 36 (1984): 293. https://www.jstor.org/stable/1228685.

King, Joseph, and Zygmunt Plater. “The Right to Counsel Fees in Public Interest Environmental Litigation.” Tennessee Law Review 41 (1973): 27. https://core.ac.uk/download/pdf/80408791.pdf.

Price, David A. “Taking Rights Cynically.” Cambridge Law Journal 48 (1989): 271. https://www.jstor.org/stable/4507287.

Rhode, Deborah L. “Feminist Critical Theories.” Stanford Law Review 42 (1990): 617. https://www.jstor.org/stable/1228887.

Simon, William H. “The Invention and Reinvention of Welfare Rights.” Maryland Law Review 44 (1985): 1. https://scholarship.law.columbia.edu/faculty_scholarship/724/.

Simon, William H. “Visions of Practice in Legal Thought.” Stanford Law Review 36 (1984): 469. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?params=/context/faculty_scholarship/article/1834/&path_info=Simon___Visions_of_Practice_in_Legal_Thought.pdf.

Singer, Joseph. “The Legal Rights Debate in Analytical Jurisprudence.” Wisconsin Law Review (1982): 975. https://api.law.wisc.edu/repository-pdf/uwlaw-library-repository-omekav3/original/e9f9cc1dacbe8639bf6330dbd3323ba520703d58.pdf.

Soifer, Aviam. “Protecting Civil Rights.” NYU Law Review 54 (1979): 651. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533631.

Sparer, Edward. “Fundamental Human Rights, Legal Entitlements, and the Social Struggle.” Stanford Law Review 36 (1984): 509. https://journals.scholarsportal.info/details/00389765/v36i1-2/509_fhrleaotclsm.xml.

Stewart, James Gilchrist. “A Critical Legal Studies Family Tree.” Adelaide Law Review 41 (2020): 121. https://law.adelaide.edu.au/ua/media/1506/Demystifying%20CLS_A%20Critical%20Legal%20Studies%20Family%20Tree.pdf.

Tushnet, Mark. “An Essay on Rights.” Texas Law Review 62, no. 8 (1984): 1363. https://www.taylorfrancis.com/chapters/edit/10.4324/9781315236353-10/essay-rights-tushnet-mark.

Tushnet, Mark. “Critical Legal Studies: An Introduction to its Origins and Underpinnings.” Journal of Legal Education 36 (1986): 505. https://www.jstor.org/stable/42898048.

Trubek, David. “Economic, Social and Cultural Rights in the Third World.” In Human Rights in International Law, edited by Theodor Meron, 251. New York: Oxford University Press, 1986. https://academic.oup.com/book/12158/chapter-abstract/161584619?redirectedFrom=fulltext&login=false.

Unger, Roberto. The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press, 1986. https://warwick.ac.uk/fac/soc/sociology/staff/sfuller/social_theory_law_2015-16/roberto_mangabeira_unger-the_critical_legal_studies_movement-harvard_university_press_1986.pdf.