#8022 - Hunt - Jurisprudence

Alan Hunt: The Theory of CLS: The first movement in legal theory and legal scholarship in the US to have espoused a committed left political stance and perspective; it raises the prospect of generating an impact on legal scholarship that outreaches the impact of realism. The movement exhibits both homogeneity and diversity. The homogeneity arises out of the linkages provided by the existence of the Conference on CLS. The diversity - the theoretical and inspirational roots that inform their writing reveals a remarkably wide trawl of twentiethcentury radical and revisionist scholarship. Question: Does CLS achieve new imaginative and liberating theoretical syntheses, or is its work marred by a jumbled, incoherent electicism? Lurking behind the question of the theoretical coherence of the CLS movement is Roberto Unger. I will consider the extent to which his intervention should be taken as adequately describing, let alone representing the situation of contemporary critical legal theory. The Critique of Legal Liberalism: The liberalism against which CLS directs its energies is the liberal theory which has generated the philosophy of legalism and the associated jurisprudence of legal positivism - it's central features are: 1. The separation of law from other varieties of social control 2. The existence of law in the form of rules which both define the proper sphere of their own application; and 3. The rules are presented as the objective and legitimate normative mechanism whilst other normative types are partial and subjective; and 4. The rules can yield determinant and predictable results in their application. The substance of contemporary debates can be traced back to the variant models of bourgeois political relations developed by Hobbes and Locke. The reworking of their different emphases on the relationship between state and civil society has been the backcloth between positivism and rationalist natural law. The significance of Realism for the CLS movement is enshrined in the insistence that after Realism, legal theory could never be the same again. The critique of orthodox legal scholarship draws upon a more generalised critique of liberalism, and thus constitutes one of the major points of unification of CLS. The core of this critique is the contention that the claim made by liberalism to resolve the conflict between individual and social interests through the mechanism of objective rules is inherently flawed. Mediation between conflicting interests at best offers only a pragmatic response to social conflict which can achieve nothing other than a set of results which reflects the unequal distribution of power, while claiming to act in the name of a set of universal social values. Roberto Unger provides a general theoretical critique of liberalism whilst at the same time insisting upon the inadequacies of the existing alternatives, the 'secular doctrines of emancipation', of which Marxist socialism is the most important. His alternative is itself a 'superliberalism', which stands close to the liberal traditin and holds out the promise of realising the prospect of individual emancipation which liberalism has proved incapable of delivering. Unger's project is to provide a 'total criticism' of liberalism that goes beyond the 'partial' critiques of