the salient features of law’s social context. Conceptions of interest also ‘underpin any analysis of law that is not solely doctrinal and that considers law to be integral to social and economic relations. Thus they are indispensable to any understanding of the causes and consequences of the creation, reproduction, or transformation of law.’[1]
Snyder challenged legal scholars ‘to make explicit the underlying assumptions about law, the state and society which as teachers and students we bring to EC law’. Somewhat audaciously he maintained that ‘the general principles on which the EC was founded and which are consecrated in its basic legal texts, ‘appear. .. merely to restate in legal language and in treaty form the underlying assumptions of contemporary capitalist economies’.[2] The EC was ‘inherently neo-colonial’ – ‘acting for the rich and north in its manifold relations with the poor and south’.[3] To summarise, Snyder asked for a new agenda suggesting that EC law was in need both of ‘a social theory of law’ and studies from the ‘perspective of critical theory’.
2. Critical legal studies: the United States
Snyder was tapping into an approach fast becoming fashionable in anglophone legal studies. Prior to the 1960s, mainstream legal thinking in the anglophone world can be summarised as predominately formalist, though moderated in the United States (USA), where critical legal studies originate, by the well-established influence of American realism. The celebrated account by Morton Horwitz of the crisis and transformation of ‘legal orthodoxy’ in the years between 1870 and 1960 contains only one reference to critical legal studies, which Horwitz regards as a ‘revival and extension’ of American realism, emerging as a post-1960s critique of a contemporary revival of ‘neutral principles’ theory.[4] Horwitz is not an admirer of neutral principles doctrine, which he castigates as ‘one more effort to separate law and politics in American culture’, serving similar dogmatic and legitimating functions to ‘religious authority’. Ensuing ‘abstract jurisprudential controversies’ had ‘misled’ generations of legal thinkers, so that legal theories, ‘developed out of the exigencies of particular politics and moral struggles’, had come to stand as ‘universal truths good for all time’.[5]
By the time Snyder wrote, the two closely linked movements of critical legal studies and social theories of law were strongly represented in American legal literature. In the USA, where the critical legal studies movement started, David Trubek opened a study of social theory in 1972 by boldly declaring that the implicit, a priori conclusions about the role of law were no longer valid; we must turn instead to ‘systematic efforts to understand the relationships among the legal, social, economic, and political orders’.[6] This he himself undertook at an exalted, theoretical level in a long article on critical social thought in law, significantly published in the infant Law and Society Review, founded in 1966. Basing his thesis on a detailed Marxist analysis by Isaac Balbus of the operation of the criminal justice system in three American cities during ghetto riots in the 1960s,[7] Trubek praised the book’s combination of quantitative analysis with Marxist explanations of the data, which he acclaimed as a unique and noteworthy contribution to the sociology of law.[8] Elsewhere, Robert Unger identified two main approaches in critical legal studies. The first (in
- ↑ Ibid. 169–70.
- ↑ Ibid.
- ↑ Ibid.
- ↑ MJ Horwitz, The Transformation of American Law 1870–1960 (Oxford University Press 1992) at 270–1. See also E Mensch, ‘The History of Mainstream Legal Thought’ in D Kairys (ed), The Politics of Law (Pantheon Books, 1982) 18–39. ‘Neutral principles’ theory approximates to Shapiro’s conception (n 5) of ‘law without politics’.
- ↑ Horwitz, The Transformation, at 271.
- ↑ D Trubek, ‘Toward a Social Theory of Law: An Essay on the Study of Law and Development’ 82 (1972) Yale Law Journal 1–50.
- ↑ D Trubek, ‘Complexity and Contradiction in the Legal Order: Balbus and the Challenge of Critical Social Thought About Law’ 11 (1977) Law and Society Review 529–69, discussing I Balbus, The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts (Russell Sage Foundation, 1973).
- ↑ Trubek, ‘Complexity and Contradiction’ (n 18) at 531.
