AN INTRODUCTION

TO

CRITICAL LEGAL THEORY

Ian Ward, BA, LLM, PhD

Professor of Law,

University of Dundee

C

P

Cavendish

Publishing

Limited

First published in 1998 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

E-mail: info@cavendishpublishing.com

Visit our Home Page on http://www.cavendishpublishing.com

© Ward, Ian 1998

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the prior permission in writing of the publisher.

Ward, Ian

An introduction to legal theory

1. Law – Philosophy

I. Title

340.1

ISBN 1 85941 348 X

Printed and bound in Great Britain

PREFACE

In recent years, it has become very obvious that the boundaries of legal theory have moved far beyond those which have tended to define the more narrowly construed ‘province’ of jurisprudence, as John Austin described it a century and a half ago. As we will see at various times in this book, classical modernist jurisprudence, that which has enjoyed a considerable dominion in university law schools for decades, even centuries, is only a part of legal theory properly understood, only one theory amongst many. To an extent, this dominion was founded on the assumption that Austinian jurisprudence is somehow ‘our’ jurisprudence. To teach classical English jurisprudence is to engage in an overtly nationalistic act and, for far too many teachers and students, for far too long, this has seemed to be justification enough. This book is part of a growing determination, shared by critical legal theorists, that such a constrained and constraining approach must now be abandoned. Classical jurisprudence is as inadequate as it is debilitating. Quite simply, legal theory is not a science. At least, it is not just a science. Indeed, there is no such thing as legal theory; merely legal theories. Law is not any one particular thing, and cannot be understood, analysed, described or whatever, in terms of one particular discipline or methodology.

Rather, the study of law is a critical and an interdisciplinary exercise, and this book is an attempt to reflect this belief. To engage in critical legal thinking is to dispute the assertion that law can be understood, that it can be founded, in one particular theory or one particular discipline or methodology. Law can be described in terms of science certainly, but not just science, for law is also philosophy, history, politics, economics, language and so on. This might seem to be rather daunting. Classical jurisprudence, despite its many inadequacies, does enjoy the virtue of being simple. The analytical ‘province’ is clearly defined. In contrast, an approach to legal studies which demands that the student of law engages with a multitude of other disciplines also demands an openness of mind and a willingness to take chances. It is this which makes critical and interdisciplinary legal theory so liberating. Once it is appreciated that there are so many alternative ideas of what law actually might be, then it can also be appreciated that law, ultimately, is what you think it is. Some may think that law is a matter of political power, some may think it ultimately a matter of morality, others may lean towards an economic or linguistic understanding. Others may think that it is a mixture of all or some of these. The choice, in the final analysis, is yours.

In a curious way, attempting to write a book about critical legal theories is slightly perverse. Writing about anything can be exclusionary. Certain ideas and certain thinkers will be privileged, as they are in any book. This paradox is unavoidable, and all that can be said in mitigation is that there is no intention to suggest that these are the only ideas or thinkers that are relevant to critical legal theory. The book hopes to be suggestive, not determinate. It seeks to address at least some of the more influential ideas, and in so doing provide an informative illustration of what a critical legal theory can be. At

v

An Introduction to Critical Legal Theory

the heart of the critical enterprise is the determination to convey the belief that all theories of law, and all theorists, must be understood within their particular context, historical, cultural, intellectual and so on. The following seven chapters proceed from this contextual premise. At the same time, they also seek to provide some sort of narrative history of legal theory. None of the theories which we will encounter, even those in the first part of the first chapter, the ideas of Plato and Aristotle, were original. Every legal theorist recasts received wisdom, working with the past in order to redescribe the present. Indeed, an appreciation of the historicity of any legal theory determines critical legal thinking itself. In this sense, the study of legal theories is akin to a genealogical exercise, the tracing of ideas as they are shaped and reshaped from one context to another, from one time to another, from one theorist to another.

The book is very much written with a student, as well as an academic, audience in mind. Far too much legal theory has been written by academics for academics, and to the exclusion of all others. There is precious little point advancing an alternative interpretation of legal theory if it is one which can only be heard by a handful of fellow academics, either sympathetically inclined or otherwise. There is no point preaching either to the converted or to the deaf. Legal theory must appear to matter to students, not just to a handful of university teachers. Too often it is unpopular amongst students and marginalised by law schools. There is no point just saying that a theoretical study of law can be important, valuable and relevant in the real world. It must appear to be so. The long dominion of classical and analytical jurisprudence has witnessed the slow death of creative legal theory. Esoteric, irrelevant and dull, certainly the dominion of the academic, classical jurisprudence has strangled the intellectual aspirations of law students for decade after decade, and the desire to breathe new life into legal theory provides the aspiration for this book.

In the final analysis, if the book fails to establish what law ‘is’ then it will have succeeded, for what law ‘is’ is a matter of opinion, nothing more and nothing less and, if it helps you to decide what you think it ‘is’, then it will have further succeeded. The aim may seem to be modest, but anything more would be both preposterous and disingenuous in equal measure. Moreover, it would be dangerous, because it would be an attempt to tell you what you must think. A critical legal theory, exploiting the intrinsic polyvalence of interdisciplinarity, refuses to accept any objective truth about what law ‘is’. Instead, it demands the active engagement of the student interpreter, whether it be the student of one term’s experience or a lifetime’s. It provides no answers, merely one particular frame of intellectual reference. Legal theory, as a discipline, will only seem to matter if it seems to belong. What law ‘is’ is not something handed down on tablets of stone. In a world of opinions, the critical legal world, the opinion of the individual reader is king, even if the opinion maker is king maker. It is your opinion which matters, and it is you

vi

Preface

who has the power to choose whether anybody else’s does. With the caveats in place, that law ‘is’ nothing more than opinion, and that your opinions are the only ones which, ultimately, really matter, then we are ready to proceed.

Ian Ward

Dundee

July 1998

vii