Radicalism and the Law


most reserved and moderate of legal scholars.

CLS thinking challenges mainstream legal theory by asserting that law is often incoherent, contradictory, and illogical. The central purpose of the law is to uphold and legitimate as oppressive Lerarchy dominated by the ruling class, CLS scholars maintain. They therefore maintain that law is based on subjective, political and arbitrary interests--as opposed to any objective standards adapted from natural models or utilitarian reasoning.

But it would be impossible to neatly categorize CLS, because CLS is more of a united front of distinctly individual theorists then an easily identifiable, well-demarcated theory. CLS scholars draw upon an eclectic mixture of thinking, using in various proportions the tenets of Legal Realism, neo-Marxism and French Structuralism. In fact, there are so many factions in CLS that nobody knows how many CLS professors there are at the Law School.

Somewhere between six and 15 faculty members could be considered CLS adherents, according to one professor. "It depends how you define it," says Professor of Law Duncan M. Kennedy '64.

The Guiding Spirit Of CLS


Kennedy, who many regard as the guiding spirit of the nation-wide CLS movement, is perhaps the most recognizable leader of radical legal thought. A bearded, flamboyant and endlessly controversial figure, Kennedy hopes to use CLS theory to "flatten hierarchies" and expose students to CLS thought.

The CLS movement at Harvard was effectively born when the triumvirate of Kennedy, Warren Professor of American Legal History Morton J. Horwitz, and Professor of Law Roberto M. Unger burst on the scene in the early 1970s.

Since then, "CLS has clearly grows fairly rapidly," says Kennedy, citing the snowballing attendance at and participation in the annual National Conference on Critical Legal Studies, a gathering of CLS scholars.

But Kennedy warns that the rapid growth of CLS in law school faculties--especially at Harvard--"is not likely to last very long." The politically-charged Law School faculty is generally considered to be about evenly divided among factions on the right, the center and the left--and only a small percentage of the left-leaning professors are CLS scholars. The "conservative" professors--most of whom are conservative only when compared to the radical left at the Law School--are strong enough to block any attempt by the CLS movement to influence faculty hiring decisions. Without such influence, say CLS supporters, the movement will be contained until it suffer from attrition.

Kennedy, however, remains optimistic about the staying power of CLS. He believes that a large number of law students, drawn into CLS at Harvard and a handful of other CLS-influenced law schools (including those at Stanford University, the University of Wisconsin, and the University of Buffalo), will choose to become law professors and pass on ideas to the next generation.

But even such a conservative strategy might be in real trouble if some conservative and very outspoken CLS critics have anything to do with it.

Critics Say Get Out of Law School

Last year the head of the prestigious Duke University School of Law, Paul D. Carrington, wrote in a widely circulated article that "The nihilist who must profess that legal principle does not matter has an ethical duty to depart the law school." That article referred specifically to Unger, but the Duke dean continues to generate considerable controversy in legal and others have criticized both the scholarly ability and the morality of CLS professors in numerous harshly-worded essays. "While the adherents to this banner [CLS] are a varied group, it seems safe to characterize them collectively as nihilists Carrington writes. "Their scholarship is often avowedly destructive in its purpose."

Carrington's statements have polarized much of the academic legal community. Most CLS professors and a large number of moderates and liberals--including Harvard's highly-respected Tyler Professor of Constitutional Law Laurence H. Tribe '62--have called Carrington's comments offensive and accused him of witch-hunting.

Tribe last year asked Carrington in a letter if he meant "to endorse a rebirth...of [the] McCarthyism that stained the history of so many universities, and of the nation as a whole, several decades ago."