Critical legal studies and a complexity approach:some initial observations for law and policy

Established thinking in the philosophy of complexity theory indicates that similar elements can be found in the Critical Legal Studies movement (CLS, or ‘the Crits’) that emerged in the late 1970s and early 1980s, itself borne out of the challenge made by the Legal Realist approach of the 1930s. Each approach questioned existing conceptions about how the law works, should be reasoned, and the theoretical underpinnings of law. The complexity approach challenges thinking on the basis of concepts including emergence and contingency, and there is a connection between these and the CLS concepts of destabilisation and indeterminacy. These concepts allow challenges to be made in relation to policy- and law-making in legal discourse. This chapter examines the CLS alongside a complexity approach with a view to establishing the latter’s relevance to law leading to a novel way of understanding law and policy-/law-making. Established thinking in the philosophy of complexity theory indicates that some aspects of this thinking can be found in postmodernism, such as the work of Lyotard (see Cilliers, Richardson and others). Postmodernism has an independent history in law, which is closely related to the Critical Legal Studies movement (CLS) that emerged in the late 1970s and early 1980s, itself borne out of the Legal Realist approach of the 1930s. Each of these approaches questioned existing conceptions about how the law works, should be reasoned, and the theoretical underpinnings of law. This in turn led to challenges being made in relation to policy and regulation in legal discourse. This chapter examines the history of the CLS and postmodernism for the purposes of positioning the critical complexity approach of Cilliers in this intellectual history, and suggests some possible applications of the complexity approach to policy and regulation based on work in the CLS and postmodernism