Comparing Critical Legal Studies and Legal Realism
Mark Tushnet notes that critical legal studies (CLS) share similarities with legal realism. Those include focusing on how the law operates in practice rather than just abstract legal rules (Tushnet). Nonetheless, he acknowledges particular distinctions between the two methodologies. According to Tushnet, legal realism was primarily a descriptive project aimed at exposing the gap between legal doctrine and actual legal practice. In contrast, CLS is a more normative project that seeks to critique the existing legal system and offer alternatives (Tushnet).
Tushnet points out another significant distinction between the two approaches, specifically in their perspective on the law. Legal realism was not explicitly anti-legal, while CLS is more explicitly critical of law and the legal system. CLS scholars proclaim that the law is not neutral but serves the interests of those in power (Tushnet). Hence, their stance is that the law must not be taken for granted but subjected to continuous examination and assessment, as they contend.
Tushnet’s Response to the Criticism of CLS
Tushnet acknowledges the criticism that CLS has no positive or constructive agenda or outlook, instead engaging in interminable critique. However, he contends that this critique is only partly correct (Tushnet). Although CLS critiques the current legal system, it presents alternative perspectives and legal approaches to address these critiques. For example, CLS has influenced the development of critical race theory, feminist legal theory, and other critical approaches to law (Tushnet).
Moreover, Tushnet argues that CLS’s emphasis on critique is a positive feature, as it allows for constant questioning and reevaluation of the legal system. He notes that any positive agenda or outlook risks becoming a defense of the status quo rather than a genuine critique and search for alternatives (Tushnet). Whether or not one finds Tushnet’s response convincing depends on one’s views of CLS and its approach. Some may agree with Tushnet that CLS’s emphasis on critique is a positive feature, while others may believe that CLS would benefit from a more explicit positive agenda.
Tushnet’s View of Further Development for CLS
Tushnet suggests that CLS has had a significant impact on legal scholarship and the legal profession. One of the leading causes is that it has influenced the development of other critical legal approaches (Tushnet). However, he notes that CLS has yet to achieve its ultimate goals of fundamentally transforming the legal system and that its influence has waned in recent years (Tushnet).
Despite this, Tushnet does not suggest that CLS has run its course and has nothing further to contribute. He notes that CLS’s emphasis on critiquing and reevaluating the legal system remains relevant, and that new scholars and movements may draw inspiration from CLS’s approach (Tushnet). Whether or not CLS has anything further to contribute depends on one’s perspective. Some may believe that CLS remains a necessary critical approach to law, while others may believe that other approaches have emerged that better address current legal issues and challenges.
Summary
In conclusion, similarities and differences can be identified when analyzing critical legal studies and legal realism. Legal realism is descriptive, while CLS takes a more normative and critical approach. The emphasis on critique in CLS permits continuous reevaluation and questioning of the legal system. Although it has influenced the development of other critical legal approaches, it has yet to attain its objectives. Nonetheless, Tushnet believes that CLS is still pertinent, and its methods may inspire future scholars and movements. The significance of CLS relies on personal viewpoints.
Work Cited
Tushnet, Mark. “Critical Legal Studies: An Introduction to Its Origins and Underpinnings.” JSTOR, vol. 36. 1986, pp. 505-517. Web.