The Critical Lawyers' Handbook Volume 1
handbook is published as part of Pluto's new legal series Law and Social
Theory. This series brings social theory to bear on law from a variety of
perspectives, including critical theory, feminism and post-modernism, It
also aims to address critically traditional areas of legal education. These
objectives are reflected in this handbook.
This series is supportive of what has come to be called the critical legal studies movement, sharing with this movement a deep dissatisfaction with the domin ant 'black-letter' approach of traditional legal education with its emphasis on the exposition of legal rules abstracted from their social, political and economic context.'The critical movement rejects this expository tradition, on the grounds that any study or practice of law must examine the complex role of law within social structures. In avoiding such issues, the dominant tradition deliberately projects law as autonomous and politically neutral. In the words of the formative statement of the British Critical Legal Conference:
One of the objectives of the handbook and the series is, therefore, to Provide 'active supplements' to traditional legal texts and practices: 'supplements' both in the sense of providing information about how legal subjects and practices came to be constituted, how their key bodies of knowledge were formed, and how these legal knowledges interweave with dominant social, political and economic ideas; and in the sense of Derrida's 'dangerous supplements' wherein those elements which have been suppressed, disregarded or marginalised in the constitution and development of legal subjects are explored. These absent elements are dangerous because they have to be hidden or demoted for the subject to exist as it does. To restore them is to go to the constitutive core of the subject.
The handbook and the series also explore the important differences which have emerged in the critical movement. In the areas of critical legal theory and education these differences have come to be characterised as the divisions between the American critical legal studies movement committed to trashing; those committed to critique, who draw heavily on Marxist theory, fern inism and the criticaisocial theory of the Frankfurt school; and the postmodernists, influenced by the works of Foucault, Lyotard, Baudrillard and Derrida (for examples of each of these, see Kairys, Thomson, and Douzinas and Warrington in Chapter 1. These debates continue in the pages of various journals and publications and the contributions to this handbook reflect, in many ways, the current position in this engagement. The edfors hope that the forthcoming critical supplements will provide a new medium for this debate.
In order to clarify the issues involved our authors were asked to indicate the contribution of their perspective to an understanding of law as an exercise of oppressive power and to the development of a political strategy for social transformation. As a way of highrghting the tensions within the movement, we have prefaced sections of the book with our original brief to authors, leaving it to our readers to judge the validity of the original objective and the success or failure of our contributors in grappling with these issues.
The handbook further identifies a crucial issue which has been generally avoided in the debate, namely the absence of any self-reflection, or (if you like) critique, of the educational and teaching practices of law schools. As Duncan Kennedy argues (inChapter 2), traditional legal education is both a training in subordination and a training for subordination. 'Black-letter' doctrinal teaching trains students to accept not only the notion of law as a complex of neutral, impartial rules, but also as a set of legitimate hierarchies of authority - the teacher substituting for the judge as the high priest or priestess of truth. This training in and for subordination to law, judges, courts and the professional hierarchy attempts to destroy all critical thought so as to produce an alienated and subordinated person 'fit to practice'. The critical legal studies movement has, on the whole, failed to take seriously the question of what changes in teaching and educational practices are necessary to the establishment of critical theory and education in law schools. What teaching practices will foster the development of politically active, critical law students, rather than produce a new alienated form of education albeit one in radical guise? In this respect we hope that this handbook and the other critical supplements in the series will enable students to free themselves from law's established authorities and hierarchies and approach their studies in a more intellectually independent and open manner.
In the area of legal practice, it is not surprising that the arguments fiercely fo ught out in the academic domain about approach and perspective have not explicitly received the same attention. The time demands of practice offer little opportunity for practitioners to stand back, contemplate and articulate their thoughts on the nature of critical legal practice and how it might relate to the wider issues raised by critical legal theory. The contributions of practitioners to this handbook are, therefore, particularly welcomed and will, we hope, help to provide a basis for developing an interchange between practitioners, academics and law students. Very little has been done towards theorising the nature of critical legal practice although this is clearly crucial to the critical enterprise as a whole. In our view, a critique of orthodox practice is not sufficient; a substantive discussion of the possibilities and limits of a critica1 practice is essential (see Economides and Hansen, and John Fitzpatrick in Chapter 3). As in legal education, the organisational structures of law centres, solicitors' practices and Bar chambers have received little or no attention, although some law centres and certain Bar chambers have gone through agonising, and in some cases destructive, debate on this issue (see Watkinson in Chapter 3). We must recognise that structural changes are crucial to the creation of a new generation of critical lawyers. The old traditional forms must be discarded and new critical working relationships developed. On this matter we have a long way to go.
Finally, in our view, the achievement of any of the above changes in legal education and legal practice requires some form of organisation which brings together students, critical legal academics and practitioners. The critical movement in Britain has, until recently, failed to create such a structure. The formation, in the last few years, of Critical Lawyers' Groups in a number of university and polytechnic law departments has provided a basis for remedyi ng this failure and producing pressure for change. Chapter 4 contains a brief account of the present organisation and activities of CLGs and seeks to encourage both their formation and the active participation within them of practitioners as well as of students and academics. One of the successes of existing CLGs thus far has been the active Involvement of many practitioners as speakers at meetings. Chapter Five is a further move in this direction, attempting to identify praaitioners who may be willing to be associated with local CLGs and CLACs, and providing an alternative guide to firms and chambers for students seeking placements and training.