Critically analysing the criminal justice system
Critical Legal Studies
It is difficult to define CLS succinctly as there are numerous perspectives that would class themselves as part of this critical movement – sub cultures within CLS include critical race theory; critical gender theory, queer theory. Generally, CLS views law as a tool used by the establishment to maintain its power and domination over an unequal society and to entrench racial or sexual or other stereotypes.
Common themes in CLS
Although there are a number of sub cultures with CLS, there are a number of common themes which all supporters would subscribe to;
• All CLS perspectives challenge the view that the law and law makers are neutral and value free.
• Objectivity within the law is impossible
• The law is indeterminate
Arguably, a sub culture of CLS, critical race theorists argue that there is a pervasive presence of racism in the legal system, and that this legal system, which is presented as neutral, has actually disempowered racial minorities. Critical race theorists observe that even if the law is expressed in neutral language, it cannot be neutral. Conversely, it is argued that the people who express the law have had their own subjective perspectives that, once enshrined in law, have disadvantaged minorities and caused racism to continue.
Apply this to the Stephen Lawrence case.
A substantive rule of the criminal law …… murder is a criminal offence and this is expressed as “an unlawful killing.”
This is expressed in neutral language – and in operation this law applies to all regardless of their status as ethnic minority or majority.
Critical race theorists would argue despite this neutrality of language that the law is not neutral, that in its operation and enforcement it has disadvantaged minorities. It would be difficult to find a more convincing example of this than the Stephen Lawrence case.
Stephen Lawrence, an ethnic minority victim of crime was failed by the police, CPS, and the criminal justice system as a whole. True, the substantive rules of the criminal law apply equally to all citizens regardless of their status but the racial bias and disadvantage lay not in the law itself but in the operation and enforcement of that law. The racial bias was far more subtle, it was hidden and harder to challenge and it had serious consequences for questions of justice – questions such as whether the criminal justice system delivers justice for all.
Research and reading
• lecture slides
• workshop reading
• some additional links are provided below to help aid your research.