Legal Modernism

What are the roots of Critical Legal Studies? “The immediate intellectual background . . . is the . . . achievement of early twentieth century modernism … ,” writes Roberto Unger in his CLS manifesto; he elaborates this modernist connection in his deep and subtle book Passion. Other CLS members also draw parallels between their endeavor and artistic modernism.

Obviously, CLS is first and foremost a movement of left-leaning legal scholars; it is also associated with distinctive theoretical claims about law. But it should be equally obvious that CLS involves sensibilities and affinities that are strikingly similar to those of an artistic avant-garde. Moreover, CLS lives in a complicated relationship to its past and to its institutional setting – it simultaneously rejects and builds upon mainstream legal theory, simultaneously reviles and depends upon the legal academy. These ambivalences are strikingly similar to the relationships of artistic modernists to premodern art (on the one hand) and to the commercial art world (on the other).

Social facts like these are never merely superficial; thus, they provide ample reason to consider carefully CLS’ connection with artistic modernism. That is my purpose in this essay. The thesis that I want to explore here is roughly this: CLS is to legal theory as modernist art was to traditional art. CLS is legal modernism.