Shadows across the Path 459Critical legal studies, in important part, was a delayed expression of the
rebellious values of the 1960s. But it had historical roots further back,
principally in American legal realism, which was distinguished by a belief
that judicial decision making is governed not by objective rules or legal con-
cepts, but instead by more immediate and material factors such as the social
and economic backgrounds of judges. Critical legal studies has been fi rmly
in the solidarist, or so cio log i cal, tradition of thought in its insistence on see-
ing the legal pro cess as a product of the social milieu in which it operates. It
has even been asserted that the “single most telling insight” of critical theory
is the belief “that law is nothing but a repetition of the relationship it posits
between law and society.” No one could ever accuse critical legal studies of
engaging in triumphalism. On the contrary, it is strongly pessimistic in its
outlook, seeing international law as “a discipline in crisis.” Trad it iona l i nter-
national law has been derided for its “doctrinal emptiness”— which has given
rise, in turn, to “cynical manipulation.”
Th e principal fi gure in the movement (as it could fairly be called) has
been David Kennedy of Harvard Law School. He suggested the alternative
label of “new stream thought” (which, however, failed to take hold). Another
prominent adherent is Martti Koskenniemi of the University of Helsinki.
He has brought a strong element of historical insight to bear, along with a
mea sure of practical experience— as a legal adviser to the Finnish foreign
ministry and as a member of the I.L.C. Koskenniemi is the author of the
single best- known treatise from the critical school, From Apology to Utopia
(1989).
Of the earlier versions of solidarism, the one to which critical legal studies
bears the greatest resemblance is the World Order Models Project approach.
Like its pre de ces sor, it off ers a bottom- up perspective, as opposed to the top-
down one of the New Haven School. Th e critical legal studies movement has
gone further than the World Order Models group, though, in its principled
rejection of consensus. It is a confl ict theory, seeing a world of oppressors
and victims. Th e solution is not to promote consensus, understanding, and
togetherness between these groups. Nor is the solution to arm the victims
with legal rights. Instead, the way forward is for the victims to become
po liti cally aware, to or ga nize themselves, and to take power (somehow
or other) from the oppressors. Human dignity is the ultimate end— as it has
been for the New Haven School— but it will come about not through the