U.S. Supreme Court Justice Clarence Thomas claimed that legal realism was destroyed by its intellectual offspring, the critical legal theory. In particular, the critical legal theory provided the foundation for such approaches as critical race theory and critical feminist theory that seriously questioned a perception of law as an ultimate good for society. In my understanding, critical theories viewed the law as derivative, an extension of hierarchies and configurations of power within society. Therefore, the law is naturally unfair since it is largely bent to benefit the ruling elites. Ultimately, the law is not a superior, standalone concept because it is dictated and written by influential individuals. By swaying public opinion in their favor, elites turn the law into a means of oppression that legitimizes injustice instead of preventing it.
While I agree with the perception of law as a derivative of social, even individual volition, I do not fully share the pessimistic sentiment of critical theories. Most importantly, I believe that law can be a universal human or at least a valuable good. According to Tamanaha, the law can limit the power of the government over individuals by providing a legal framework that restricts officials (137). In addition, the law acts as a foundation of formal legality, a feature that provides security and predictability of dealings between individuals, the government, and members of different communities (Tamanaha 139). In this regard, the law still offers fairness and justice by limiting the government’s ability to create the worst possible, completely unrestricted tyranny.
However, formal legality can become a double-edged sword when imposed from above. In particular, Hobsbawm admitted that focusing on formal legality created problems in communities with important legal norms, such as post-colonial societies (305). To a certain degree, such clashes between the local norms and formal legality based on imported laws point to the validity of critical theories. Colonial empires have attempted to replace the customary law of indigenous nations with legislation that suited their needs, not the needs of local populations.
Furthermore, multiple cases from history demonstrate that law can act as a mechanism of oppression or give an unfair advantage to those positioned at the top levels of social structure. One of the most infamous examples is the slavery codes of the Antebellum South. Even the most lenient slavery codes relegated slaves to property (Fede 244). According to Fede, slave law was fundamentally inhumane as it served to legitimize the violence, brutality, and unlimited authority of slave owners (244). In this case, the law was dictated by an oppressive institution of slavery, which fits the concerns expressed in critical theories.
Finally, elites can use the law to disguise the real state of affairs, giving ordinary people an illusion of justice. This problem is evident in the example of contract law, which has been used as an ideological concept for three centuries. For instance, in the 18th century, the ideological dimension depicted contract as the legal implementation of customary moral and religious principles. In reality, contracts helped establish class domination based on wealth and inherited social position (Feinman and Gabel 383). Similarly, the ideological imagery of the 19th century created the illusion of contracts between free and equal citizens, while in truth, contracts helped create a society dominated by capital owners (Feinman and Gabel 383). In these examples, one can see how law can be used to mislead the masses, a common idea expressed in critical theories.
Overall, the evidence demonstrates that a quotation from Clarence Thomas’s article holds significant merit. Throughout history, the law has been dictated by the preferences of elite classes and powerful nations. The individuals who shaped the law had essentially turned it into a way of legitimizing their dominance. As an extension of society, the law becomes a derivative of the individuals who compose it, especially the ones who have the power to write and interpret legislation. Therefore, critical theories set valid questions, which should be taken seriously if we want to create a more just society.
Works Cited
Fede, Andrew. People Without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South. Routledge, 2012.
Feinman, Jay M, and Peter Gabel. “Contract Law as Ideology.” The Politics of Law: A Progressive Critique, edited by David Kairys, Pantheon Books, 1990, pp. 373–386.
Hobsbawm, Eric J. The Age of Capital, 1848-1875. Abacus, 1977.
Tamanaha, Brian Z. On the Rule of Law: History, Politics, Theory. Cambridge University Press, 2004.