New Critical Legal Thinking

In the early days, critical legal studies (CLS) cohered around the demand that law is a form of politics. While legal reasoning perpetually mystifi ed its own operation, law itself was directly and immediately political. Legal decisions were choices which formed part of the ‘ideological struggles in society’.1 This generation of ‘Crits’ looked at ‘the undeniably numerous ways in which the legal system functions to screw poor people’, but also ‘at all the ways in which the system seems at fi rst glance basically uncontroversial, neutral, acceptable’.2 However, these early forays into CLS – largely associated with the major US law schools – took a narrow approach to the relation between law and politics. Typically, theorists depended on broad post-Marxist political commitments, which too often failed in their radical aspirations or petered out after the limited nature of the law school site became apparent.3 Gathering a number of ‘young’ Crits, this collection revisits the relation between law and the political. However, we want to suggest that there is something distinctive about this return: it is far from a simple rehashing of the themes and tools of early CLS. It is not adequate, we suggest, to treat law as a mere instrument of political power, to reduce our outlook to the claim that law is politics by other means. Nor is it enough to claim that the mythic formality and neutrality of the law functions as an ideological mask for the machinations of politics. Times are different. That law is politics would be welcomed by many states who preside over the evacuation of any antagonistic sense of politics. Nowadays, not only does law increasingly resemble politics, but politics increasingly resembles law. In an indistinct fuzzy middle zone, what emerges are techniques of management, security, strategy and policy. The real ‘fi eld of pain and death’, 4 upon which legality is predicated, is no longer merely the courtroom, but also the planning offi ce, the social security department, the job centre.