JUDGMENT REVIEW

TRUMP TWITTER CASE: 

Citizens' unrestricted access to their government

M Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, June 12, 2018

Can you“block”anyone from your Facebook, Twitter and Instagram? A cursory reading into our constitutional freedom of speech and privacy would suggest a YES. You can and should be able to control your personal space in social and public forums.The answer however may be a NO if you somehow get placed in a public office.

In the recent case of Knight First Amendment Institute at Columbia University v Donald Trump (May 2018), the U.S. President Donald Trump and his legal team argued that blocking undesirable persons from President's Twitter Account is permissible because the President retains a personal and constitutional (First Amendment of the U.S. Constitution) interest in choosing the people to associate in his social media. Trumps' lawyers also argued that social media audiences have no right to be heard and their views be amplified by a government audience like President. The New York District Court rejected the argument claiming that public official's right to limit his audiences cannot trump the people's freedom of speech –their right to speak freely to advocate ideas in public forum.

The principal question facing the court in Donald Trump case was whether a public official may, as per the U.S. First Amendment, “block” a person from his Twitter account in response to the political views of that person. Blocking someone from a public official's account would violate his/her freedom of speech in two senses - Social media account of public officials like President Trump's constitutes a “Public Forum” where freedom of speech is protected. The blocked petitioners would be restricted from engaging in political speech and such “speech on matters of public concern” which “fall within the core of First Amendment protection” (Engquist v Ore. Dep't of Agric., (2008)).

Though Twitter is a private company that is not government-owned, the President and his staffs nonetheless exercise control over various aspects of the account. The extent to which the President and his staffs can, and do exercise control over aspects of the account are sufficient to establish the government-control element. Additionally, record establishes that (1) the account is presented as being registered to Donald J. Trump, '45th President of the United States of America, Washington, D.C.,' (2) the tweets are official records that must be preserved under the Presidential Records Act, and (3) the account has been used in course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy—all of which are squarely executive functions. Donald Trump's account therefore remains a presidential account as opposed to a personal account and hence a property dedicated to public use.

The U.S. Supreme Court has in principle accepted internet (including social media platforms such as Twitter) as one of “modern public square” for the exchange of views, (Justice Anthony Kennedy in Packingham v North Carolina,(2017)).  Even if we consider internet as a non-traditional space of public interaction, it would constitute interactive public space if the state intends it for use by the public (Perry Educ. Association v Perry Educators' Association(1983)) or a class of speakers in general (Arkansas Ed. Television Comm'n v Forbes, (1998)).

Donal Trump's Twitter account is generally accessible to the public at large regardless of political opinion, race or restriction whatever. Anyone with a Twitter account may participate in the interactive space by replying or retweeting the Trump's tweets. The account is officially represented as a means through which the President “communicates directly with the American people!” Taking these factors together, the court concluded that the interactive space of a tweet from the account constitutes a designated public forum.

While opening in social media, public officials don't lose their personal right to ignore unpleasant views however. “[A] person's right to speak is not infringed when government simply ignores that person while listening to others,” (Smith v Ark. State Highway Emps, (1979)). Nor is the individual right violated when government “amplifies” the voice of one speaker over those of others (Minn. State Bd. v Knight, (1984)). But government cannot go beyond that to actively restrict “the right of an individual to speak freely to advocate ideas.”

To this end, muting someone could serve the public official's right to ignore some and to selectively amplify the voices of certain others. But Blocking restricts the right of the blocked person to speak altogether. This is impermissible under the First Amendment guarantee of freedom of speech.

The writer is an Assistant Professor of Law, University of Chittagong.

Democratic Audit of the Parliament of Bangladesh:

A Framework of Analysis

M Jashim Ali Chowdhury*

SCLS Law Review Vol. 1. No.3 [Sept. 2018], p 37-44 

Available Online: http://sclsbd.org/wp-content/uploads/2019/03/9.-Democratic-Audit-Jashim-Ali-Chy.pdf 

1. Introduction

This paper would attempt to chalk out the theoretical framework for a Democratic Audit of the parliament of Bangladesh. While the current paper does not attempt the Audit itself, it lines out the contours and criteria of the proposed Audit and its implication for Bangladesh. David Beetham’s Four Prong theory of Democratic Audit Model may be saturated into three broader aspects of legislature as a democratic institution. As part of the over-all Audit, accountability and institutional theories associated with each of those three aspects could then be explained and tested in relation to Bangladesh Parliament.

2. Four-Fold Sectionalisation of Democratic Audit Model

Beetham’s Democratic Audit sees democracy firstly, as a set of principles or regulative ideals like popular control and political equality etc, and secondly, as some institutions and practices through which these principles are realised. As part of his Audit, Professor Beetham would ask four questions to see whether and how far a system is democratic. The fourfold sectionalisation of Democratic Audit are: first, existence and scope of free and fair elections, second, degree of openness, accountability and responsiveness of the government, third, the quality of protection for citizens; and fourth, democratic society ensured through pluralism, popular and media access in the state institutions and processes.[1]

While Professor Beetham’s Audit tools may be accused of being a Westminster system being widely adopted around the world, its institutional arrangements should have a universal relevance. Yet, had there been any substantial differences of situation, experience and political perspective, suitable audit criteria and appropriate standards of assessment might be formulated chosen.[2] Bangladesh being a common law heritage and declaredly Westminster parliamentary system, Beetham’s fourfold sectionalisation should be an appropriate theoretical framework for an institutional investigation to its strength and weaknesses.

3. Three Prong Evaluation of the Parliament of Bangladesh

For scrutinising the legislative branch of the state, a careful saturation of fourfold sectionalisation in Democratic Audit Model would lead us to three boarder perspectives: 

1)      Parliament as a Representative Institution

2)      Parliament as an Accountability Institution

3)      Parliament as an Accountable Institution

3.1. Parliament as a Representative Institution

Studies on Bangladesh parliament are predominantly about its constitutional roles, law making and oversight. Quality of representation the parliament has in Bangladesh has not been addressed in the academic circle too much. The successive governments emphasised ‘elected’ nature of the parliament. On the other hand, civil society critics and opinion leaders were branded ‘unelected’ and hence less entitled to question the elected ‘representatives’.[3] Recent debate over the invalidation of Caretaker Government System[4] and the constitutional amendment on judges’ removal[5] has re-ignited the debate over parliament’s actual position as the “sole representative” of the people. The representative character and role of the parliament will be addressed in this dissertation in a systematic way that would enable us to answer the following questions –

1)      How fair is the electoral process in Bangladesh?

2)      How reflective of popular will is the current First Paste the Post system?

3)      How equal is the representation of different groups of citizens?

4)      How much quality is there in the representation?

3.2. Parliament as an Accountability Institution[6]

Parliament is placed in a highly strategic position to scrutinise the executive and other branches of the Republic. Parliament of course in its turn is answerable to its constituency (the electorates).[7] Horizontal accountability system works within the systems and structures.[8] In this sense, horizontal accountability provides capacity for state institutions to check abuses by other institutions.[9] Parliament does this through its legislative power and oversight powers. An analytical account of the legislative process and oversight tools in disposal of Bangladesh Parliament would necessarily call for an evaluation of the Government Backbenchers, Opposition Members and Parliamentary Committees. Under the Horizontal Accountability structure, the thesis will investigate the oversight structure of the parliament of Bangladesh and the role of Opposition, Government Back Benchers and Parliamentary Committees within the oversight structure. In this relation the theory of Party modes developed by Professor Anthony King would be a convincing testing tool. King tested the patterns of executive-legislator relations in Britain, France, and West Germany. This study would attempt one with Bangladesh. Questions for consideration under King’s party modes will be how far it could be utilised to explain the performances of the Government Back Bench, Opposition and Parliamentary Committees in Bangladesh?

Anthony King’s Party Modes

King has set forth several modes of parliamentary interaction that occur within the political parties – intra-party, opposition, non-party, and cross-party modes. The intra-party mode, for example, depends greatly on the extent of legislative independence. For example, the parliamentary leadership in Germany is independent from the persons holding the executive positions. Government backbenchers hold a strong say in the legislative affairs. Additionally, the committee system being totally non-partisan, members have almost independence in shaping the legislation. On the other hand, in Britain, though the leadership in the parliament is separate from the prime minister, party whipping is stronger than its German counter-part. Government backbenchers are also less independent than the Germans.[10] Party members mostly withheld causing embarrassment for the party leadership in control of the government. Party remains the most formidable channel for political career opportunities.[11]

In the Opposition mode, legislature and its internal mechanisms leave scope of opposition beyond a mere symbolic opposition. As par King’s Analysis, British and French Parliaments being primarily deliberative bodies, opportunities for Opposition are few. Opposition’s case role remains that of watching the government from outside the government and raising the other side of the argument in policy discourse. Germany’s greater legislative capacity and the power of committees gives to the Opposition more opportunities than the British and French counter parts. Depoliticized nature of the committee system also permits effective opposition where the opposition point of view is seen as not merely partisan. [12]

The Cross-party and Non-party modes are best suitable for legislatures which may be like Polsby’s transformative parliament mentioned earlier. Here, the partisanship per se is relatively unimportant. The more a legislature's activities are committee oriented, the more non- partisan or cross-partisan modes comes to play. The cross-party mode is particularly supported by the existence of coalitional government.[13]

3.3. Parliament as an Accountable Institution

The theory of Vertical Accountability or Political Accountability, also referred to as direct-accountability, occurs when institutions are called upon to explain and justify their performances to the public (electorates). Apart from being an institution of horizontal accountability, parliament is also important as an institution with vertical accountability.[14] While assessing the parliament of Bangladesh as an Accountable institution, the thesis would touch upon two fundamental issues –

First, whether the MPs are primarily to act as legislators or as representatives of the people? To put the questions alternatively, how much constituency services are desirable of the MPs? And whether the MPs’ constituency role would affect the doctrine of separation of power as enshrined in the constitution of Bangladesh?

Second, whether the MPs represent their electorates as their trustee on the first place or they act merely as agents of their respective political parties? To what extent article 70 of the constitution of Bangladesh (anti-defection clause) shifts the balance towards either of the trustee or agent roles?

MPs’ Constituency Role and Separation of Power

Members of Parliaments usually discharge three functions – representative, legislator and scrutinizer. Representative role indicates that MPs elected as representatives of their electorates must have some accountability towards his/her support base. To this end, constituency services constitute an important part of the MPs’ role of representation. Maintaining a direct touch with the locality, attending the local issues and sponsoring the local causes to the appropriate branch of the Executive are considered an extremely important role for the Members of Parliament particularly when re-election from the constituency depends heavily upon the local units of parties and their support base.

The problem of the trichotomous roles of law making, scrutinizing and representing is however one of balancing. In unstable democracies with institutional weaknesses and capacity deficit in parliament, the representative aspect of the parliament memberships get more and more prominence and MPs behave more like a local leader than a national lawmaker. The electorates in general also shows a ‘cognitive lacking’ about the representative functions of the MPs.[15] People in general put greater emphasis on their MPs paying more attention to the local issues than to the national policy discourses. Bangladesh has been particularly stricken by this conventional wisdom. Independent self-government at the local level has been severely curtailed by excessive interference by the MPs in local governments.

According to article 59(1) of the constitution of Bangladesh, the local government bodies in every administrative unit of the state are entrusted with local development works. Parliament “shall, by law, confer powers on the local government bodies, including power to impose taxes for local purposes, to prepare their budgets and to maintain funds”.[16] Parliament is therefore constitutionally bound to allow the local government bodies a full autonomy.  Practically the MPs dominate the local government policy making and governance. Relationship of the MPs with local government bodies in their constituencies are that of conflict, collusion and subordination.[17]

Involvement of the MPs in the local government institution has been the root cause of over politicization of local governance as well as mis-governance at central level. It has affected the quality of law making as well. The Supreme Court of Bangladesh caught the issue in two cases namely - Barrister Ziaur Rahman Khan v. Bangladesh 20 BLD (HCD) 120 and Anwar Hossain Monju v. Bangladesh BLT (HCD) 86

In Barrister Ziaur Rahman Khan, a Member of Parliament challenged a notification calling the meeting of Thana Co-ordination Committee without prior consultation with him. Unfortunately, the Court failed to appreciate the role of a Member of Parliament in the local government and development issues from the right perspective. It accepted the contention of the MP to held that MPs have an interest in overseeing their local governance:

Members elected from a particular constituency have overall and multi-faced responsibilities to look after the welfare of their constituencies and their involvement in the development work of their constituencies as far as possible is desirable. The spirit of any democratic constitution including ours is to involve the locally elected member of Parliament not only national matters but also in local maters or in the development activities of his constituency.

The illusion of Barrister Ziaur Rahman disappeared in Anwar Hossain Monju. In this writ petition, Mr Anwar Hossain Monju, an Opposition MP from Pirojpur in the 8th Parliament challenged a government notification appointing 62 Ministers in charge of 62 districts all over the country. The concern of Mr. Monju was that his role as an MP in development of his locality would be illegally interrupted by these 'Ministers'.

The plain argument of the petitioner was that neither any provision nor the over-all scheme of the Constitution approves such 'Ministers'. Rather as a side effect, the democratic governance of the local government units suffers a setback. The government lawyer discharged his burden by simply referring the 'precedent' of 1980s when such ministers were frequently appointed by the then military regime. The Court in its epoch-making judgment filled up the omissions in the arguments of the parties. Justice ABM Khairul Haque emphasised on democratic governance of local government. The court believed neither the MP challenging the District Ministers nor the impugned Ministers had any role in functioning of the local government units.

Problem of Barrister Ziaur Rahman and Anwar Hossain Monju is that the cases take a completely opposite outlook to a common problem. While former accepts a sweeping power of “supervision” in the MPs hand, the later denies it all together. Therefore, this dissertation would need to argue for a middle ground between the two. It will need to attempt a principled analysis of the separation of power and check and balances between legislative branch and executive branch on the one hand and the MPs constituency role on the other hand.

Trustee and Delegate Model of Representation

Edmund Burke is the proponent of a famous controversy of democratic representation: Should MPs act according to the will of the people or according to their independent judgment? Burke’s famous speech to the electors of Bristol in 1774 runs as follows:

Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole - where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.[18]

The controversy therefore indicates preference between local interests of constituencies or those of the one nation. Burke prioritises the national interests. There is however argument that Burke’s national interest criterion was becoming obsolete even in his own days. The idea of instructed delegates taking instructions from their districts is an old day concept. Apart from presenting the grievances of their people, early day representatives were unlikely to deliberate on national policy vis-a-vis the king.[19]

However, the development of the relationship between king and parliament in Britain made this agency theory of representation gradually obsolete. With the growth of parliamentary sovereignty, the agents-of-district-interests became less significant. National interests rather than the geographical ones became more and more prominent. Apart from Burke’s view of political representation, delegate model has been questioned from two other normative points of view: First, modern politics are controlled by national controversies over which electoral districts’ positions are not uniform. Second, it totally misses the existence of political parties in democratic process.[20] Modern democratic process has more or less replaced the constituents with the organised political parties. Programs and manifestos of the political parties have the tendency to bind the MPs to their party directives. In that sense, the Burkean controversy of representation may now be re-described as being one between the interests of the parties and of the nation.

Now, if the MPs are to be considered the agents of their parties, the original Burkean controversy does not fade away at all. To be considered an ideal substitute for the interests of the nation -

1.      Political parties must present clearly defined policy alternatives to the voters.

2.      internal party cohesion or discipline must be sufficient to implement their policy program.

3.      voters must vote rationally, have policy preferences and know the differences between programs of different political parties. [21]

If any or either of these conditions is not met, MPs’ agent or delegate status in relation to their parties is most likely to be in conflict with their trustee status in relation to the nation as a whole. Therefore, the Burkean controversy of mandate-independence remains alive. The controversy remains even more relevant for Bangladesh given the presence of an anti-Floor Crossing clause in the constitution. Article 70 of the Constitution of Bangladesh endangers a MP voting against his own political party with losing his seat in parliament.

Article 70 has been considered the most controversial provision of the Constitution of Bangladesh. The article has been accused of causing a major set-back in parliament’s oversight power. The judiciary also took a conservative attitude in interpreting the article 70. First judicial cognisance of the article was Abdus Samad Azad v. Bangladesh 44 DLR 354. Six MPs from the opposition party in the 5th Parliament (Awami League) challenged the President's Election 1991. The Act introduced Open Ballot voting in Presidential Election, while the original constitution specifically provided that the election should be in Secret Ballot. A Division Bench of High Court Division of the supreme court of Bangladesh comprising F.H.M Habibur Rahman and Abdul Hasib JJ was divided on whether to accept the writ or not. The issue was then thrown to the Single Bench consisting Anwarul Hoque Chowdhury J.

Barrister Amirul Islam, one of the leading lawyers of the country, appearing on behalf of petitioners argued that the 1991 Act would unnecessarily attract the vice of article 70 in presidential election. MPs voting in Open Ballot system would run the risk of losing his seat, if he votes against the presidential candidate nominated by his party. Barrister Islam argued that article 70 being a restrictive provision in the free excercise of opinion and judgments, it must be interpreted in a restrictive fashion and it should govern the essential legislative functions of the MPs only. Election of the President, being an extra ordinary special function, cannot be brought within the operation of Article 70, Barrister Islam argued. Islam’s line of argument is essentially this - If the sole purpose of Article 70 is to prevent malicious defection and unnecessary defeat of the Cabinet in the floor, it should be limited only to the essential legislative affairs. Talking from an originalist point of view, the intention of the framers of the Constitution not to allow Article 70 operate in Presidential Election was evident in the Second Schedule of the original Constitution which provided for Open Ballot voting.

Barrister M Aminul Islam, the then Attorney General of Bangladesh, took a strict and conservative stance. To support the Open Ballot voting, he argued that political parties should get priority above all in public affairs. MPs are bound by the party mandate and directions. People elect them on the basis of party and so the electorate of a particular electoral area has a right to know for whom their representatives are voting. Interestingly, the Court did not pay much attention to restrictive reading argument. It rather interpreted the article in broadest possible way:

There is a self-imposed restriction in Constitution itself which speaks of the role of a political party and its manner of influence upon a member of a political party, voted to Parliament under its ticket. A MP is thus not a free agent to act while voting in parliament.[22]

This being the position of the judiciary in relation to article 70, Bangladesh’s position over Burkean Mandate-Independence controversy remains problematic. Article 70, as is understood by the judiciary, has apparently relegated the MPs to a mere delegate status. This dissertation would attempt to see whether and how much the overall representative character of parliament is affected by the article 70. And also, whether the reach of article 70 is actually as perverse as it appears to be. 

4. Concluding Remarks

While the purpose of this paper is to present the framework for a Democratic Audit of Bangladesh Parliament, the preliminary insights we get from the above suggests that Parliament of Bangladesh might yield very marginal indications of strengths. Still the proposed Democratic Audit would pave a more comprehensive and scientific basis for testing the institutional contours of the parliament of Bangladesh. Any academic investigation of the Parliament is therefore highly likely to yield more concrete and practical research output for parliamentary reform.

---

* Assistant Professor, Department of Law, University of Chittagong. This article constitutes a part of the theoretical framework I propose for my PhD dissertation at King’s College London. My current doctoral project at King’s is titled as “A Doctrinal Analysis of the Westminster Parliamentary System in Bangladesh” which seeks to analyse the parliamentary system of governance in Bangladesh through a variety of theoretical lenses prevalent in the Westminster parliamentary jurisprudence.

[1] David Beetham, The Idea of Democratic Audit in Comparative Perspective, Parliamentary Affairs, Oxford University Press, Volume 52, Issue 4, 1 October 1999, Pages 567–581,https://doi.org/10.1093/pa/52.4.567 at p 570

[2] Ibid, p 577-78

[3]Rounaq Jahan, The Parliament of Bangladesh: Representation and Accountability, The Journal of Legislative Studies, 21:2, 250-269, DOI: 10.1080/13572334.2014.975470, p 3

[4] The Caretaker Government system as introduced via the 13th amendment (1996) was overturned by the 15^th Amendment (2011) Tusher, H. J. (2012, August 11). Unelected people not to be in government: AL, allies respond to BNP’s reported formulas. The Daily Star. Retrieved from http://archive.thedailystar.net/ newDesign/news-details.php?nid=245670.  which provided for an NCG for 90 days to organise parliamentary elections

[5] 16^th Amendment to the Constitution sought to reassert the parliament’s power the judges’ removal. The original constitution in 1972, Jashim Ali Chowdhury and Nirmal K Shah (2017), Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh's Dilemma with Judges' Impeachment, Indian Journal of Comparative and Administrative Law

[6] Webster Siame Kameme, The Vertical and Horizontal Accountability in The Malawi Parliamentary Democracy, PhD Dissertation, University of Hull (2015); Craig T. Borowiak, Accountability and Democracy: The Pitfalls and Promise of Popular Control, Oxford University Press, 2011.

[7] Fox, J., 2000. Civil society and political accountability: Propositions for discussion, Available at: www.CTORANDGOVERNANCE%2FResources%2FAccountability Governance, at p.1

[8] L Morlino (2002), What is a “Good” democracy? Theory and empirical analysis, Available at: http://ies.berkeley.edu/ research/files/ CP02/CP02 What is Good Democracy, at p. 4

[9] Sahni, P. and Vayunandan, E (2010) Administrative Theory, PHI Learning Private Limited, London.

[10] G Loewenberg and SC Patterson (1997) Comparing Legislatures, University Press of America, p. 133

[11] Bert A. Rockman, Legislative-Executive Relations and Legislative Oversight, Legislative Studies Quarterly, Vol. 9, No. 3 (Aug., 1984), pp. 387-440, Washington University, Stable URL: http://www.jstor.org/stable/439490, Accessed: 02-06-2018 16:57 UTC  P 406-409 at p 406

[12] Ibid, 407

[13] Ibid

[14] R Stapenhurst, N Johnston and R Pellizo (2006) The role of parliament in curbing corruption. Available online: http://wbi.worldbank.org/wbi/Data/wbi/wbicms/files/drupalacquia/wbi/The%20Role%20of%20Parliment%20in%20Curbing%20Corrupti on.pdf., p.2

[15] Muhammad Sayadur Rahman, Role of the Members of Parliament in the Local Government of Bangladesh: Views and Perceptions of Grassroots in the Case of Upazila Administration, Public Organiz Rev (2013) 13:71–88

[16] Article 60 the Constitution of Bangladesh

[17] N Ahmed, T Ahmed & M Faizullah (2011) Working of Upazila Parishad in Bangladesh: A study of twelve upazilas, UNDP Dhaka

[18] A H Birch (1972), Representation, London, Macmillan at p 39

[19] Ibid, at p 24-37

[20]  M Kent Jenning and Thomas E Man, Elections at Home and Abroad Essays in Honour of Warren Miller, Michigan University Press, 1994 p 243

[21] Ibid p 252

[22] Abdus Samad Azad v. Bangladesh 44 DLR 354. Para 26

Law as Politics: Reflections on the Critical Legal Studies Movement

Law as Politics:

Reflections on the Critical LegalStudies Movement

M Jashim Ali Chowdhury

Assistant Professor, Department of law, University of Chittagong

SCLS Law Review Vol. 1. No.2 [May 2018] p 17-21

Available Online: http://sclsbd.org/wp-content/uploads/2018/08/7.-Jashim-Ali-Chy-Law-as-Politics.pdf 

Introduction

Critical Legal Studies (hereinafter CLS) movement of the U.S. marked the combination of a legal way of thought and a social network of left leaning legal scholars of 1970s. Though loosely constructed as a legal theory, CLS lacks the ingredients necessary for a full pledged legal theory. It is rather better described as a network of like-minded legal scholars at Harvard and a way of legal thought.[1] Prominent among the scholars were Roberto Unger, Duncan Kennedy, David Kennedy, Morton Horwitz, Jack Balkin, Mark Tushnet and Louis Michael Seidman. As is put by Roberto Unger, though CLS was meant to be “continued as an organizing force only until the late 1980s,…its founders never meant it to become an ongoing school of thought or genre of writing.”[2] Yet the movement became a very powerful school of thought popularised throughout America and the rest of the world. CLS has been perceived both as a reaction to legal Formalism and Realism and a distinct theory of law.

CLS as a Reaction to Legal Formalism and Realism

CLS movement started at the behest of some scholars inspired by the civil rights movement (primarily black rights), feminist movements, opposition to Vietnam war and concerns over rapid wealth disparity between the rich and the poor. The movement questioned the traditional American understanding of law and legal system. More specifically, it questioned the dominant trends of legal formalism and legal realism.

Legal Formalism

Legal formalism was American middle ground in the naturalist and positivist jurisprudence. Naturalists claim the laws to be emanating from moral and natural sources. Positivists, on the other hand, claim the law to be deriving from amoral and worldly authorities like the sovereign, executive and legislature, etc. American formalist philosophy, in its turn, focused on a different actor – the judiciary. Inspired by the principle of judicial review established in Marbury v Madison 5 U.S. 137 (1803) the legal formalists claim that law is what the judges say.

Basic principles of legal formalism may be summed up as follows:

1)      Legal rules reside above other social and political institutions. Once the lawmakers give us the rules, judges would apply them to the facts of a case. Now the question is about the pile of principles from which the rules would be found. Rules can be found from handful of general principles containing some abstract concepts – such as, contract without consideration is invalid, no guilt in absence of guilty mind, etc. There will be a “mass of lower rules” deriving from these basic concepts. This tenet of legal formalism is known as Conceptualism.[3]

2)      In applying the rule, the judges will not consider other social interests or public policies that may seem relevant for the case in hand. In this sense, the judge would simply apply the laws without considering whether the outcome of the application is just and moral.[4] This concept is known as amorality of adjudication.

3)      What the judge need is simply the fact and a law. While there may be a huge lot of principles, the judges would look for the one which is clear and straight forward in the area and which is readily discoverable by the lawyers practicing in the area. This is called restriction or denial of choice.[5]In this sense, legal formalism aims at restricting the judge’s discretion and hence it is also called the mechanical jurisprudence. One of the famous supporters of Legal Formalism was Justice Antonin Scalia of the U.S. Supreme Court. In one of his essay, A Matter of Interpretation, Scalia defended textualism and formalism by claiming:

Of all the criticisms levelled against textualism, the most mindless is that it is formalist. The answer to that is, of course it's formalistic! The rule of law is about form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbour with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men.[6]

4)      Since the judges decide cases on the basis of distinctly legal rules and reasons, the legal formalists claim that there is only one right answer for every legal dispute. The judges will have to find that right answer by survey of available precedents and sources. This one-right-answer justifying one unique result is known as rule determinacy.[7] One of the famous critique of this one-right-answer doctrine is Professor Ronald Dworkin. Dworkin believes that law may give more than one right answer in a given case if the answer is attempted by different persons. Even if different judge may give the same right answer, their reasoning may vary. So more-than-one right answer is possible in every given case.[8]

Legal Realism

Dworkin’s rejection of the formalist concept of rule determinacy brings us to the Legal Realism evolved during the 1930s. If Legal Formalism is a thesis, Legal Realism is an anti-thesis. Justice Oliver Wendel Holmes J. of the U.S. Supreme Court is given the honour of the Founder of American Legal Realism. In 1897, Justice Holmes delivered a famous speech “The Path of Law” before the Boston University School of Law. Emphasising the law-in-action over the law-in-books, Justice Holmes told: "The life of the law has not been logic, it has been experience."[9] Holmes believed that law is not all about some determinate rules rather it is some prediction a legally interested person might need to do in planning his legal actions. Holmes explains through his famous “bad-man” example. Before deciding any course of action, a typical bad-man would calculate all possible consequences which may follow his action. At the end he would take only that route in which risks are the least and profits are more. Like a bad-man, a lawyer preparing his case for a client would calculate which judge would take which line of view. On that basis, the lawyer would decide which law to be relied, which arguments to be made before which judge. This is what is called Legal Realism- the law-in-action. Justice Homes says:

But if we take the view of our friend - the bad man, we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.[10]

Basic contours of legal realism may be summer up as follows:

1)      As a theory, legal realism is different from both naturalism and positivism. Realists are not naturalists because, they don’t accept the moral social values as something divine. They would rather see those as products of historical and sociological facts which need be addressed from a sociological and practical point of view. Reference to divinity is unnecessary. Realists are also different from positivists in the sense that they refuse to confine their investigations to state law and/or positive law only.

2)      Realists are different from formalists in the sense that “what judges actually do in deciding cases, rather than on what they say they are doing.”[11] Judges adjudicate more than they mechanically apply legal rules to some “uncontroversial fact-finding”. We may never be sure that the facts and law identified in a judgment are the actual basis of the decision that comes out. Realists claim that the legal rules and principles elaborated in a judgment may hide some controversial political and moral choices the judge may rear in his or her mind. In this sense, the rule determinacy theory proposed by the legal formalists is not right. Statutory and case laws are indeterminate, and decisions of the judges are not based entirely upon rule of law. This realist perception is widely known as rule scepticism.[12]

CLS as a Distinct Theory of Law

From a theoretical point of view, CLS questioned the precedent based common law norms and its traditional inability or inertia to address the power bias of law. Critical legal thinkers attempted to unveil the subtle partiality of the apparently impartial and rigid legal doctrines, hidden interests and class domination behind legal institutions and politics of laws.

Basic contours of CLS may be summed up as follows:[13]

1)      The foremost assertion of CLS is, “Law is Politics”. Legal reasoning is not different from political reasoning. Like political ones, legal disputes are solved through a hazy combination of coercion and reasoning. It is not pure reasoning at any rate.

2)      All imaginable legal questions are indeterminate. Any well-developed legal system would permit the lawyers and judges to explore principles and rules both within and across the system. Within the system, a contract lawyer, for example, may rely on the dominant concept of agreement to establish a right, subordinate concept of mistake and fraud to destroy a right. If he seeks a bit different result, he may attack the concept of contract itself by resorting to some socio-political principle based arguments. The rules being indeterminate, the actors find themselves in a position of choice.

3)      Legal system is titled in favour of the powerful persons and elites. The “haves” would dominate the institution building and agenda setting process of the state. They would internalise the “have-nots” in the process by regulating media, opinion process and fantasise the have-nots’ perception about the so called liberal states.

4)      The distinction between public and private domain is artificial. These are maintained only to offer justification for protection of private wealth. Otherwise, the distinction line between the private and public is always blurred. While haves’ wealth is protected, state frequently enters into individual’s private domain in the name of surveillance. In the same way, individual rights are more vehemently pressed to reinforce an individualism that would disrupt greater community solidarities and more substantial progressive change.

Therefore, instead of accepting the doctrine of rule-based decision making (legal formalism) or the situation based decision making (legal realism), critical legal thinkers of 1970s sought to establish a sort of “reasoned elaboration.” The concept as explained Roberto Mangabeira Ugar, is that rules and situations could constitute “prescriptive system” at best. Relying on the prescriptions, the judges would uncover “justice” through reasoned analysis of policies and principles of law without questioning the "basic institutional arrangements of democracy and state.[14] By not questioning the “basic institutional arrangements” reasoned elaboration thesis would distance itself from the revolutionary zeal of radical Marxism. Reasoned elaboration would thereby permit the use of democratic legal system as a mechanism of social change. If not used in this way, laws would serve a stagnant society inherently biased towards wealth and power.

Continuing Relevance of CLS

The CLS movement substantially waned within a decade of its emergence. Yet the offshoots of CLS, like the critical race theory, critical feminist theory now play a major role in contemporary legal scholarship. An impressive stream of CLS-style scholarship has also emerged in the last two decades in the areas of international and comparative law. Most importantly, apart from the philosophic particularities of CLS, the networking and activist elements in the movement contributed towards a radical change in the U.S. Law School curricula and teaching-learning methodology. While the inherently Marxist-Socialist tendencies of the CLS movement have faded a bit, the “activist premise” of CLS remain viable. Encouraging the legal academia to question the institutions and norms from a sceptic’s point of view is no less important today. Thinking and acting from a critical perspective could surely bring a positive change in the overall politico-legal scenario. Such a passionate upbringing and gathering of a folk of critical thinkers and activities would ultimately benefit the laws and legal institutions in the days to come. Seen in this line, CLS’s is a very elementary and simple task – questioning the status quo and asking for a change.

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[1]Gerard J. Clark, ‘A Conversation with Duncan Kennedy,’ The Advocate: The Suffolk University Law School Journal 24, no. 2 (1994): 56.

[2]Roberto Mangabeira Unger, The Critical Legal Studies Movement, Harvard Law Review (1983), http://www.robertounger.com/en/wp-content/uploads/2017/01/the-critical-legal-studies-movement-another-time-a-greater-task.pdf (Accessed on November 5, 2017)

[3] Legality, Scott J Shapiro, Harvard University Press, 2011, pp.472 at p 241

[4]Leiter, B. (2010). Legal Formalism and Legal Realism: What Is the Issue? Legal Theory, 16(02), 111–133. http://doi.org/10.1017/S1352325210000121 9Accessed on November 4, 2017)

[5] Frederick Schauer, Formalism, 97 Yale Law Journal, 509, 548 (1988) at p 511

[6]Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, The University Center for Human Values Series (1997) at p 25

[7]Legality, Scott J Shapiro, Harvard University Press, 2011, at p 242

[8]Ronald Dworkin, “No Right Answer?” in Law, Morality and Society, 54-84 (Hacker and Raz, Eds), Oxford, Clarendon Press, 1977. For a general discussion see - Brian Bix, Law, Language, and Legal Determinacy Oxford, Clarendon Press (1995), Chapter 5 (Ronald Dworkin’s Right Answer Thesis)

[9]See also Joan I. Schw, Oliver Wendell Holmes's "The Path of the Law": Conflicting Views of the Legal World, The American Journal of Legal History, Vol. 29, No. 3 (Jul., 1985), pp. 235-250 Oxford University Press, Stable url: http://www.jstor.org/stable/844757 (Accessed on November 2, 2017)

[10]Oliver Wendell Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457 (1897), Available online: http://www.constitution.org/lrev/owh/path_law.htm (Accessed on November 1, 2017)

[11]Robert A. Shiner, "Legal Realism," in Robert Audi, ed., The Cambridge Dictionary of Philosophy. New York: Cambridge University Press, 1995, p. 425

[12]Brian Leiter, Legal Formalism and Legal Realism: What Is the Issue?, University of Chicago Public Law & Legal Theory Working Paper, No. 320 (2010) Available online: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1178&context=public_law_and_legal_theory(Accessed on October 31, 2017)

[13] The basic tenets of CLS in this part are summed up from one the pioneer of CLS at Harvard Law School Professor Mark V. Tushnet’s chapter on “Critical Legal Theory” in Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory. Blackwell. Chapter 5 pp. 80--89 (2005) at 80 Available online: http://www.doi.org/10.1111/b.9780631228325.2004.00007.x (Accessed on October 28, 2017)

[14]Roberto Mangabeira Unger, The Critical Legal Studies Movement, New York: Verso (2015).