critical legal theory

Scholars and activists have critiqued […] the assumption that law is a neutral set of universal principles analogous to scientific laws. The alternative account points out that the founding of the United States and the establishment of a system of participatory democracy raised great anxieties among the wealthy colonial elite authoring its legal structure. They identified a need to prevent the potential redistribution of wealth that might be demanded by less wealthy white men who were newly entitled to political representation. For this reason, the key rights protected by the new legal system were property rights (Mensch 1982). Important critiques of this system emerged in the 1920s when a group of theorists known as the legal realists suggested that an awareness of social conditions should inform purportedly neutral legal reasoning. Supreme Court Justice Oliver Wendell Holmes argued that the legal system used the pretense of neutral principles to promote laissez-faire economic theory for the benefit of those groups with the most economic and social power. He noted that judicial decisions striking down laws passed to protect workers in the name of enforcing the liberty of contract in theory, as in the famous case Lochner v. New York (198 U.S. 45 (1905)), ignored the reality of the contexts in which workers contract with employers and cast as neutral conditions that actual benefited wealthy people and perpetuated the exploitation of everyone else (G. White 1986).

The realists were neither the first nor the last to argue that U.S. law was founded to protect and preserve the concentration of wealthy and property. The critical legal studies movement that emerged in the 1970s, the critical race theory movement of the 1980s, and the various social movements that engage with the law (including indigenous mobilizations, antiracist movements, and various strains of feminism) all have contributed to an analysis of the U.S. system of property law as securing racialized and gendered property statuses from the start. The legal rules governing indigenous and enslaved peoples articulated their subjection through the imposition of violent gender norms, such as the enforcement of natal alienation among slaves and European binary gender categories and gendered legal statuses among Indigenous people (C. Harris 1993; Andrea Smith 2005; Roberts 1993). The statuses and norms established by these systems were (and are) racializing and gendering at the same time. They do not create rules for all women or all men or all white people or all native people or all black people; instead, they reproduce intersectional social hierarchies by inscribing within the law specific subject positions that are simultaneously racialized and gendered.

Dean Spade, “Law,” Keywords for American Cultural Studies, Second Edition (ed. Bruce Burgett and Glenn Hendler), pg.150