The Critical Legal Studies Movement is a book by the philosopher and politician Roberto Mangabeira Unger. First published in 1983 as an article in the Harvard Law Review, published in book form in 1986, and reissued with a new introduction in 2015, The Critical Legal Studies Movement is a principal document of the American critical legal studies movement that supplied the book with its title. In the book, Unger argues that law and legal thought offers unrealized possibilities for the self-construction of a more democratic society, and that many lawyers and legal theorists have uncritically surrendered to constraints that undermine their ability to make use of law's transformative potential. Unger explains how the critical legal studies movement has refined and reformulated the major themes of leftist and progressive legal theorists, namely the critique of formalism and objectivism in legal doctrine, and the purely instrumental use of legal practice and doctrine to advance leftist aims, and in doing so, has identified elements of a constructive program for the reconstruction of society.
Overview
Unger sets out to show how contemporary theories of law and society have been constrained by the false belief that law is a necessary expression of certain abstract ideas of social organization, such as democracy or market economy. Unger contends that these modes of social organization do not have any natural, necessary, or inevitable form. Unger begins The Critical Legal Studies Movement by critiquing formalism and objectivism, the ideas that he believes lie at the root of the necessitarian thinking that blinds us to law's transformative and constructive potential and possibilities. Formalism is the belief that lawmaking differs fundamentally from law application. Objectivism is the belief that authoritative legal materials (statues, cases, accepted legal ideas) embody and sustain a defensible scheme of human association and display an intelligible moral order.
Chapter 1: The Criticism of Legal Thought
Unger suggests that applying "extreme criticism" to formalist and objectivist ideas will expose the elements of a constructive program for the reconstruction of society in line with leftist aims. In this chapter, he sets forth critiques of objectivism and formalism. His critique of objectivism aims to show that there is no built-in legal structure for a social organization, and that democracy and the market do not have a universal legal language. His attack on formalism shows that existing legal theories claim to achieve "sanctification of the actual"—that is, these theories claim that substantive law and doctrine just happens to coincide with a coherent normative theory about human conduct. Unger explains that such legal analysis is, in reality, pieced together by an endless process of ad hoc adjustments.
Unger explains that the turning point for many critical legal theorists was when they decided to pursue the critical attack on formalism and objectivism to the hilt, at grave risk of "confusion, paralysis, and marginality."
Chapter 2: From Critique to Construction
In this chapter, Unger sets forth the constructive outcome of the critiques of formalism and objectivism, namely the practice of "deviationist doctrine" (also called "expanded doctrine"), and the search for alternative institutional forms for basic social institutions, particularly the market and democracy.
Deviationist doctrine, according to Unger, represents an attempt to bridge doctrine with empirical social theory and ideological conflict. Such an expanded form of doctrine fights over the terms of social life, and refuses to accept that established forms of society reflect any practical or psychological necessities. Everything is up for grabs. Such doctrine aims to point out how biased, power-ridden and makeshift legal materials have gained a semblance of necessity that they should not be granted. In brief, deviationist doctrine encourages theorists to transform society by taking an ideal from one part of social life, and extending it into an area from which it had previously been excluded. This has the advantage of allowing the theorist to draw upon a rich collective history of ideas and institutions that have helped to articulate the ideal in the past, and can now be marshaled to defend its extension into a new area of social life.