Critical Legal Theory

Critical Legal Theory
• In a capitalist society, individuals are controlled by a pitiless law

usually beyond their comprehension. The alienated human specimen is
tied to society as a whole by an invisible umbilical cord: the law of
value.
— Che Guevarra, Man and Socialism in Cuba

• Mendiola, Luneta, and EDSA are familiar spots for militants and
activists who continuously harp on laws and policies. What they are
doing is “critical legal theory” in practice.
• The main tenet of critical legal theory is that the law has been the
means to enshrine and coercively impose the wishes of the dominant
group or institutions.
• Critical Legal Theory questions the law’s assumptions, such as the
assumption that the people are free, and that the market is free.
• Rather, people’s choices and the market’s behavior are already

conditioned by economic, social, ideological, and political forces, or
the present “hegemony.”
• This theory also exposes the inconsistencies, inhumanities, and

imperialism of First World Western democracies. The clout of the
Western superpowers prevents former colonies from seeing the flaws
in their legal systems that are being adopted globally.
• Critical legal theory is associated with subversives as it aims for a
“deconstruction” of the law and uses the “hermeneutics of suspicion”
to advance marginalized causes. Among the offshoot of the critical
legal theory are “critical feminist theory,” “critical race theory,” and
“postmodernism.”
• Law is a form of class rule and control. In the polemic Communist

Manifesto, Marx wrote: “Your jurisprudence is but the will of your
class made into a law for all, a will whose essential character and
direction are determined by the economic conditions of your class.”
• In The Critical Legal Studies Movement, Roberto Mangabeira Unger
challenged societies to rethink their ideas of rights and emancipation
and to continuously imagine, envision, and experiment with structural
arrangements, with the goal of creating more opportunities for more
people.
The Once-Upon-a-Time Approach
• It usually takes a hundred years to make a law, and then, after it has
done its work, it usually takes a hundred years to get rid of it.
— Henry Ward Beecher, Proverbs from Plymouth Pulpit
• The law is not simply made; it is in the making. It rolls a story struck in
real events. The historical school holds that the law has a past and a
progression. It develops in a gradual and evolutionary process and
cannot be separated from its national or indigenous character from
clannish rules, to folk beliefs, to landmark events that shaped a
nation.
• Law operates in a specific language, impressed by cultural beliefs,

traditions, customs, temperaments, and the common experiences and
consciousness (geist) of a people.
• The law is therefore the product of a national genius. For example,
the existence of the lupon and the barangay in our legal system can
only be understood with reference to their historicity. The same with
our indigenous cultural communities on their pre-Hispanic claim for
ancestral domain.
• The main proponents of this school include Freidrich Karl von Savigny,
a German jurist, who claimed that the law proceeds from a voltgeist.
Law unfolds from the spirit of the people. Law is written and updated
as the people evolve.
• Meanwhile, G.W.F. Hegel theorized that the State is the product of
converging historical forces (the dialectics of thesis and anti-thesis
merging into a synthesis) going towards an Absolute Point where
freedom will finally be realized. Why is freedom the must of history?
Because man’s reason and free will, Hegel said, seek independent
thinking, self-reliance, and personal liberty. History is an unfolding of
this. It is the story of man’s inevitable march to freedom.
The Functional or Sociological Approach
• There must exist a paradigm, a practical model for social change that
includes an understanding of ways to transform consciousness that
are linked to efforts to transform structures.
— Bell Hooks, Killing Rage: Ending Racism
• This approach justifies “judicial activism” and “judicial legislation” and
is related to the Realist Theory. As opposed to positivist formalism,
functional “instrumentalism” justifies creativity in decision-making
beyond the original intent of the law, if this will serve good public
policy, human rights, and social interests.
The main proponents of this school are:
• 1) William James, who taught of law as a means to satisfy needs
• (2) Charles Louis Baron de Montesquieu, who said that the law must
adapt to shifting social conditions
• (3) R. Von Jhering, who saw the law as a method of ordering society
composed of competing interests. Legal rules must be used to resolve
and harmonize, rather than provoke or exacerbate conflict
• (4) Roscoe Pound, who maintained that a coherent society must have
a pattern of culture that determines its ideology
• (5) Max Weber, who made a typology of law into rational
(logical/scientific) and irrational (emotional, superstitious). Weber
criticized the institutionalization and bureaucratization of laws that
have become unresponsive to concrete situations
• (6) Roberto Mangeira Unger who held that law must have a cultural
context to support it
• (7) Eugen Ehrlich, who said that legal norm must follow actual social
norms and be a “living law.”
• Today, the function of settling conflicting interests and developing the
law has been given to conciliators and the courts. The “balancing-of-
interest test” and “the compelling interest test” in jurisprudence are
influenced by the sociological school.
• Society must survive and adapt to the times by being responsive to an

increasingly heterogeneous and pluralistic society. For instance,
Philippine legislative committees are expected to hear “interest
groups” before passing laws.
The Economic Approach
• It’s the economy, stupid!
— Bill Clinton’s 1992 presidential campaign slogan
• Law appropriately takes its cue from economics and plays a larger role
in modern legal systems. Posner cited Holmes in The Path of Law for
saying that “every lawyer ought to seek an understanding of
economics.”
• Still, Posner admitted that some things do not even have a price, such
as freedom. Wealth, however, still plays a role because people who
live in wealthier societies enjoy more freedom and quality of life.
Posner cited as example the case of South over North Korea, of
Argentina over Cuba, and of Japan over Southeast Asia.
Forms-and-Fundamentals Approach
Form ever follows function. This is the law.

— Louis Sullivan, The Tall Office Building Artistically Considered
• Formalism is also referred to as “textualism” or the “plain meaning”
approach to the law and “originalism” or the “original meaning”
approach to the Constitution. Judges need only use the rules of
analytic thinking in applying the law to a particular case.
• “Originalism” further considers the “original intent” of the drafters, or

the “original meaning” based on what reasonable persons at the time
the law was written declare the law to mean in its “initial framework.”
• Formalism adheres to ethical constraints on a judge from deciding or
opining on what the law should be or should mean other than what
the law says or does not say. It is incidental to the separation of
powers of the three branches of government, where only Congress is
supposed to make laws, while the Judiciary only applies the law to the
case in dispute, and the Executive implements the law. Originalism
says that judges should only “interpret,” not “construct.”
• Formalism is a by-the-book approach best demanded from certain

elements of the legal system who may abuse their discretionary
powers, including administrative agents who may issue rulings
contrary to statutes, or judges who are tasked to apply the law on
facts presented.
• The positivist Jeremy Bentham espoused formalism. A contemporary
advocate of originalism is U.S. Supreme Court Justice Antonin Scalia, a
Republican Conservative famous for his antics. He wrote scathing
dissents on landmark cases that declared unconstitutional state laws
banning abortion, when nothing in the U.S. Constitution speaks about
abortion.
• Scalia cited the preamble of the U.S. Constitution, where rights were
intended to apply not only to generations born, but to future
generations as well. In the express words of the preamble: “to
ourselves and to our posterity.”
Practice Theory
• It’s a free-for-all, after all.
Philip Bobbit, in Constitutional Interpretation, wrote that the different
approaches to law, or modalities, have their own uses. One should
know how and when to use them in making arguments.
• Bobbit identified six main modalities;
First is the historical, which must be used when the intention is to

decipher what was really meant by the framers of the law.
Second is the textual, in looking for what the law simply declares or
denies and how it can be interpreted in contemporary times.
Third is structural, inferring rules from structures and mandates.
Fourth is doctrinal, applying rules generated by precedent.

• Fifth is ethical or moral, appealing on the ethos or ideals of a
government (teleological).
• Finally, prudential or according to exigencies and the calculus of costs

and benefits.
• Bobbit admitted that each modality has been preferred to advance a

certain ideology and that some people only acknowledge a particular
approach to the law, most sensitively, to the Constitution. But these
modes are no more than instruments to make an argument.

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• In a capitalist society, individuals are controlled by a pitiless law

— Che Guevarra, Man and Socialism in Cuba

• Rather, people’s choices and the market’s behavior are already

• This theory also exposes the inconsistencies, inhumanities, and

• Law is a form of class rule and control. In the polemic Communist

• Law operates in a specific language, impressed by cultural beliefs,

• Society must survive and adapt to the times by being responsive to an

Form ever follows function. This is the law.

• “Originalism” further considers the “original intent” of the drafters, or

• Formalism is a by-the-book approach best demanded from certain

First is the historical, which must be used when the intention is to

Third is structural, inferring rules from structures and mandates.

Fourth is doctrinal, applying rules generated by precedent.

• Finally, prudential or according to exigencies and the calculus of costs

• Bobbit admitted that each modality has been preferred to advance a

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