A Discussion of Critical Legal Studies' Claim of Legal Indeterminacy

Bachelor Thesis, 2015

47 Pages, Grade: 1.75




Positive and Negative Jurisprudence

External and Internal Viewpoint
Legal Realism
Critical Legal Studies Scholars ‘crits’
CLS Major Themes and thoughts

Legal formalism
Inherent generality of laws
Reasoned Elaboration
Institutionalized System
‘Law is politics’
CLS’ Response
Legitimacy of laws





This paper challenges the Critical Legal Studies (CLS) claims of legal indeterminacy. It shall use a legal formalist logic and language as its main assertion, further maintaining that the CLS claims is only grounded in ambiguity and confusion. The paper will also refute CLS main ground for claiming legal indeterminacy, the concept of ‘law is politics’, by offering counterexamples.

CLS is a legal theory that challenges and overturns accepted norms and standards in legal theory and practice. They maintained that law in the historical and contemporary society has an alleged impartiality, and it is used as a tool of privilege and power.

CLS is a kind of postmodern theory of law, the philosophical study of law within the scopes of postmodern theoretical outline: poststructuralist, neo-pragmatist, or post-Freudian psychoanalysis. Together with CLS, postmodern theories of law also includes ‘work within law and society theory, law and literature studies, sociological jurisprudence, semiotic legal theory, feminist jurisprudence, and critical race theory’[1]. Furthermore, these theories view modernist theories of law ‘as incoherent, descriptively inadequate, or normatively problematic, and incapable of securing freedom, equality, and justice’[2].

In addition, they also tend to be ‘non-comprehensive, culturally and historically specific, interdisciplinary, rhetorically ambitious, and overtly political’[3].

Living in a pluralistic society, maintained by postmodern theory, means differences of the collective from wealth, gender, ethnicity, etc. In many instances, these differences often lead to conflicts. According to Chambliss and Seidman, the myth is that the state does not take sides, that it is neutral. The legal order is a self-serving system to maintain power and privilege[4]. This position is very different from Natural Law and Legal Positivism. In contrast to postmodern theories of law, there is a universal acceptance and agreement on what laws should be. However, the myth claims that powerful groups impose their will upon the collective by controlling the law inside a certain society.

Legal Realists assert that judges hold the key to the influence of law. They further claimed that judges are guided by their interpretation of the law; however, being human means being influenced by other factors such as feelings, moods, alliances, and preferences. They highlight the fundamental importance of personality in the outcome of dispute. The CLS scholars used the ideas and legacy of Legal Realism that sought to challenge the existing convention in the legal system.[5]

Legal Realism is a school of legal philosophy that is generally connected with the attack on the orthodox and conventional claims of late 19th century classical legal thought in the United States[6]. Its most important legacy, the challenge to the classical legal claim that legal reasoning was separated and autonomous from moral and political discourse, was then used further and improved by the Critical Legal Studies.

CLS began in the mid-1970s with its early proponents from Harvard Law School faculty. In the beginning, many proponents of the American CLS scholars are into the legal education. By that time, they were influenced by their experiences from different movements: civil rights movements, women’s rights movements, and the anti-war movements of the 1960s and 1970s. From these different protests against the domestic politics, CLS started off and eventually translated into a critical stance towards the dominant legal ideology of the modern Western society. Both the British and American version started roughly at the same time.[7] They both wanted to explain what is wrong in the legal thought and practice.

The movement operated around a number of conferences held annually, particularly the Critical Legal Conference and the National Critical Lawyers Group. Since then CLS has steadily grown in influence and permanently changed the landscape of legal theory. Among the noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. MacKinnon.[8]

Like most schools and movements, CLS has not produced a single, monumental body of thought. Although there are several common themes and subjects that can be traced on different adherents’ works. The first theme is that legal materials, such as statutes and case law, do not totally determine the result of legal disputes. Second is the idea that ‘law is politics’. The arguments take aim at the positivist conception of law being separated from politics and morality. Third is the traditional claim is that far more often than is usually suspected, the law tends to serve the interests of the wealthy and powerful by protecting them against the demands of the poor and the subaltern, women, ethnic minorities, working class, indigenous people, disabled, homosexuals, etc., for greater ‘justice’. Fourth are the claims that legal materials are inherently contradictory. Finally, they question the central assumption of law that an individual, a judge or a lawyer, is an autonomous individual. That they are able to make unbiased decisions based on reason detached from political, social, or economic constraints. CLS scholars hold that individuals are intrinsically tied to their epoch, socio-economic class, gender, race, and other conditions of life, temporary or permanently. Therefore, they question the idea of ‘free’ and partial decision-making.

However, as stated earlier, CLS, as a legal theory, shows different weaknesses as a critique of the legal system. One of their main claims states that due to the politics of law, its contradictory character, and other external factors, law becomes indeterminate. Nevertheless, this claim is grounded on the ambiguity of conflations, ideas, and concepts.

This thesis will use a legal formalist logic and language critique of CLS claims of legal indeterminacy. It maintains that laws are inherently objective, stable, and therefore determinate. It states that the CLS claims of legal indeterminacy is excessive, using a legal formalist logic and language as the main counter-argument, backed by grounds as follows: inherent generality and neutrality of legal codes, reasoned elaboration, centrality and institutionalized process. In addition, this thesis will also refute the main premise of CLS claims of legal indeterminacy, which is the assertion that ‘law is politics’. It will be done through offering counterexamples that will uphold law as an entity that is not purely politics.

The idea of ‘formalist’ throughout the thesis does not exclusively implies to the school of legal formalism, for it means a ‘strict adherence’ or ‘observance of’. Although it will not dwell on CLS concerning its postmodern approach and view, it will discuss the weaknesses of postmodernism applied to legal jurisprudence, to serve as a supplementary critique to its flaws. Again, the critique’s focus is on CLS main assertions on legal indeterminacy, concentrating on the legal theory they proposed.

Correspondingly, the aim of this paper is to use CLS theory’s potential. Their approach or way of looking into the nature of law can be used to develop a viable alternative theorization that is capable of providing a new direction for legal scholarship and legal institutions as a whole. Moreover, in showing the weaknesses and strengths of CLS, the paper will offer a resolution that will further answer the problem with the legal system as whole.

This thesis also offers examples of statutes, laws, and legal cases in the Philippine context. These examples will further help the reader in contextualizing the theories posited by the paper.

For further elucidation, an overview of each chapter follows:

After the introduction on the first chapter, the second chapter exemplifies the current CLS movement’s knowledge, substantive arguments, as well as theoretical and methodological contributions. In addition, it also shows the concepts, views, subjects, and themes that the CLS movement has, by tracing them from the existing adherent works. It starts with the impression of postmodernism using a chapter on postmodern legal theories from Emmanuel Fernando’s A Course on Legal Theory. A brief analysis of the most prominent forerunners of Legal Realist thought, Oliver Wendell Holmes Jr., and one of his main works, The Common Law follows. This is succeeded by a brief examination of Roberto Unger’s major works, as one of the most valued proponent of the movement, The Universal History of Legal Thought, Law in Modern Society: Towards a Criticism of Social Theory, The Critical Legal Studies Movement, and What Should Legal Analysis Become? Then, the discussion narrows down to the CLS main assertions, its grounds, claims, and warrant, concerning their statement of law as indeterminate and purely political.

The third chapter states the paper’s main arguments against the CLS movement’s claim of legal indeterminacy. This paper will show that CLS assertions are based on ambiguity. On one hand, their claim of legal indeterminacy is founded only in a confusion between generality and contradictory. The paper uses arguments that moves around with the idea of legal formalism, logic, and language. It is then backed up by sub-arguments that will further support the main assertion of legal formalist logic and language, which includes inherent generality and neutrality of legal language, institutionalized and centralized process, and reasoned elaboration. On this chapter, the paper also refutes the CLS main grounds for legal indeterminacy, the idea of ‘law is politics’, through counterexamples. Further claiming that the idea is merely a statement of fact that currently happens in society and further using it as a ground for legal indeterminacy is sentimental and weak.

The last part offers the conclusion that CLS failed in demonstrating the indeterminacy of law. This is done by refuting their claim of contradictions in law through legal formalism. Then, with the use of legal formalist logic and language, together with the sub-arguments: ‘reasoned elaboration’, inherent generality and neutrality of legal language, centralized and institutionalized process and settlement, this thesis refutes the claim of personal, partial, and subjective legal decisions. Nevertheless, it still considers CLS as a legitimate legal theory, and that it can be used as a viable theory for the advancement and benefit of the jurisprudence.



Critical Legal Studies (CLS) began with the concept and ideas of postmodernism. The postmodern legal theory sought to dismantle the meta-narratives of modernity, which in this case is the legal institution as a whole. They want to ‘disrupt the foundations of the now conventional, comforting certainties.’[9] In this situation the ‘comforting certainties’ are the theories that includes legal positivism and natural law theory which offers a certain definition and nature of law.

This paper will focus on the CLS’ claims of legal indeterminacy and legal impartiality as the main point of the critique. Postmodernism with its externality and anti-foundationalist character can also be used in analysing the CLS’ claims against legal institutions.

Positive and Negative Jurisprudence

An overview of the postmodernism legal theory will help, for this is the style and character of CLS. Emmanuel Fernando examined the general orientation of postmodern legal theory as a collective movement in legal studies. He contrasted the postmodern approach to legal theory with the approach taken in Anglo-American legal theory. Fernando claimed that the postmodern approach is excessively external and anti-foundationalist. He added that the modern approach also ends the nagging problem of infinite regress, which haunts all efforts to establish a political or legal platform[10].

Fernando maintained that one critique of postmodernism is its ‘destructive character’, and it offers nothing or hardly anything constructive.[11] However, this kind of approach against the CLS seems futile, since CLS is a postmodern legal theory. It means that this kind of legal theory does not really offer any structural framework of what is, it only criticizes the existing conventions, and it will be up to the individuals to formulate their solution about the criticized aspect of the subject.

Fernando coined the positive and negative jurisprudence in assessing postmodern legal theory. On one hand, positive jurisprudence ‘refers to any legal theory which provides a basis for judicial action in a particular case or situation and/or recommends the basic structures for a just state’[12]. It specifically demands justice in particular legal controversies such as abortion, affirmative action, privacy, and the proper extent of taxation. In addition, it also suggests the nature of laws as a social phenomenon, and how decisions should be made in particular cases. Their work is positive in the sense that they offer a ‘normative framework for future action by legislators and judges’.[13]

On the other hand, negative jurisprudence operates critical insights about the law, but it does not offer a positive plan for action. CLS stands on this realm of jurisprudence, for it only criticizes the existing notion of law, but it does not offer any plan of action. This is also where the critique of externality is founded.

The issue then is which is better between the two approaches: positive or negative jurisprudence. CLS scholars claim that it is better to replace normative appeals with ‘description and criticism’ together with a more critical approach to law.[14] However, as claimed by Fernando, normativity may be partially correct at some point, but positive jurisprudence is more essential. He added that CLS scholars who analyse the normative conceptions tend to also use the concepts they ridicule i.e. justice, fairness etc. Therefore, due to the lack of foundation, they lean towards a foundation unintentionally, which then results to a sort of contradiction. In addition, another reason stated by Fernando in support of positive jurisprudence is that legal decisions are made internally, and not by revolutionary sociologist. He further maintained that a purely external critique without a normative component of what should be done is useless, for it cannot be really applied to legal practice.[15] He added that to change the law, it requires positive jurisprudence.

The solution then is for CLS to seek and not disregard a foundation that is strong enough and supported with normative claims. Deconstructing the foundational thinking in law seems to be a failed attempt because in each case there is a retreat to foundations of anew but unworkable sort.


[1] David A. Reidy, “Postmodern Philosophy of Law, The Philosophy of Law: An Encyclopaedia, Vol. II, ed. by Christopher Barry Gray (New York: Garland Publishing Co., 1999) 674.

[2] Ibid. 674

[3] Ibid.

[4] William J. Chambliss and Robert B. Seidman. Law, Order, and Power. (Boston: Addison-Wesley Publishing Co., 1971)

[5] Brian Leiter, “American Legal Realism”, The Blackwell Guide to Philosophy of Law and Legal Theory, eds. W. Edmindon & M. Golding (Oxford: Blackwell, 2003)

[6] Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 2012) p. 595

[7] Legal Information Institute, Cornell University. “Critical Legal Studies: An Overview”. Wex Legal Dictionary and Encyclopedia. Cornell Law School, Cornell University. http://www.law.cornell.edu/wex/critical_legal_theory

[8] Ibid.

[9] Emmanuel Fernando, A Course on Legal Theory (Manila:Rex Book Store, 2011) p. 923

[10] Ibid. p. 942

[11] Ibid. p. 983

[12] Ibid.

[13] Ibid. p. 984

[14] Ibid. p. 985

[15] Ibid. p. 986

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A Discussion of Critical Legal Studies' Claim of Legal Indeterminacy
Bachelor of Arts in Philosophy
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law, jurisprudence, philosophy, CLS, critical legal studies, indeterminacy
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Ian Benitez (Author), 2015, A Discussion of Critical Legal Studies' Claim of Legal Indeterminacy, Munich, GRIN Verlag, https://www.grin.com/document/304400


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