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A Marxist Rejoinder

Published online by Cambridge University Press:  01 June 1999

Stefan Sciaraffa
Akin, Gump, Strauss, Hauer & Feld, L.L.P.


Critical Legal Studies (CLS) writers argue that judicial decision making is not politically neutral; rather, it is only a stylized version of political discourse. More pointedly, these writers argue that the belief in legal neutrality legitimates an unrepresentative political process, thereby benefiting the powerful to the detriment of the weaker. Accordingly, CLS writers consider the belief in legal neutrality to be ideological. Also, CLS writers consider judicial decision making itself (as opposed to beliefs about legal decision making) to be ideological in the sense that the outcomes of legal decision making are informed and influenced by conservative ideology.I use two senses of the term “ideology” in this essay. The ideological belief in legal neutrality is ideological in a pejorative sense. That is, it is a false belief that works to the detriment of its holder. The conservative ideology that informs legal decision making is ideological in a descriptive but not necessarily a pejorative sense. For a discussion of these and other distinctions between the possible meanings of the term “ideology,” see Raymond Geuss, The Idea Of A Critical Theory (1981), esp. ch. 1. Thus, a central project of the CLS movement is to unmask the ideological nature of law.For discussion of the premises that the liberal belief about law is ideological and that the function of CLS writers is to unmask this ideological nature, see David Kairys,Introduction to The Politics Of Law: A Progressive Critique 5 (David Kairys ed., 1990); Alan Hutchinson, Introduction to Critical Legal Studies 3 (Alan Hutchinson ed., 2d ed. 1989); Richard M. Fischl, Some Realism About Critical Legal Studies, 41 U. Miami L. Rev. 505, 524–25 (1987); and Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 205 (1979).

Research Article
© 1999 Cambridge University Press

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