| This
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:
The
central focus of the critical legal approach is to explore the manner
in which legal doctrine, legal education and the practices of legal institutions
work to buttress and support a pervasive system of oppressive non-egalitarian
relations. Critical theory works to develop radical alternatives, and
to explore and debate the role of law in the creation of social, economic
and political relations that will advance human emancipation,
In short,
law generally acts to consolidate and maintain an extensive system of class,
gender and racial oppression. Critical lawyers seek a theory
and practice that makes the overcoming of such oppression a central political
task.
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.
We
would like to thank all of our contributors for their enthusiastic and
active cooperation and look forward to their participation in CLG
debates in law departments around the country.
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