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Course Overview:
Critical Legal Theory (CLT) makes two principal claims—one moderate and the other more radical. First, building on legal realism, CLT argues that law is not neutral or objective but rather entrenches discrimination against historically marginalized groups, such as those defined by gender, race, class, ethnicity, and religion. Second, and more radically, CLT contends that law is not merely biased but actively constructs these very social categories, creating structural hierarchies by positioning individuals as “privileged or subordinate” (S. Haslanger). In this sense, law is seen as a fundamental source of social inequality. If CLT is correct in identifying law as a root cause of these inequalities, the principle of fairness would mandate a profound overhaul of our legal system. In response to the injustices highlighted by CLT, various affirmative action programs have been introduced, particularly in sectors such as government and public administration and corporate and organizational structures. The most prominent of these are DEI (Diversity, Equity, and Inclusion) policies, which have been implemented widely in the United States. Similarly, the EU has adopted comparable frameworks, such as the Gender Equality Strategy and the Anti-Racism Action Plan. These policies, however, have sparked strong opposition from historically dominant groups, leading to what has been labeled as a “populist backlash.” For example, the Trump administration moved to dismantle federal DEI programs, framing the effort as a return to “merit-based opportunity.” This raises a key question: Does the populist backlash reflect an inherent rejection of social justice, or does it signal concerns that the legal remedies proposed by CLT may introduce new injustices, perceiving justice as a zero-sum game? Course Aims: This course has three primary aims: 1. Introduction to Critical Legal Theory (CLT): The first part of the course will introduce students to the foundational claims of CLT, with particular focus on how law is implicated in the creation of social categories and structural inequalities. We will use legal case studies to critically evaluate the extent to which law contributes to the division of society into social groups. 2. Analysis of Affirmative Action and DEI Programs: The second part will delve into the DEI policies in the United States and European Union, evaluating how these policies have been shaped by the insights of CLT. We will also assess the populist backlash against these policies and consider whether it is rooted in genuine concerns or misinformed opposition. 3. Exploring Alternative Legal Instruments: Finally, the course will explore alternative legal frameworks that may address group-based social injustices in a less adversarial way. A particular focus will be placed on the theory of identity constitutionalism (T. Dumbrovsky, V. Kaul), which aims to construct an overarching collective identity, rather than perpetuating conflict between social groups. Learning Objectives: By the end of the course, students will be able to: • Critically engage with the central tenets of CLT and understand its critique of law’s role in creating social hierarchies. • Analyze and evaluate the effectiveness of DEI policies, with a focus on both their impact and the populist resistance they provoke. • Explore and critically assess alternative legal frameworks that aim to bridge social divides without deepening polarization. Poslední úprava: Sojka Miroslav, Mgr. (12.05.2025)
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1. Class Participation: Regular engagement with readings and discussion (15%). 2. Class Presentation: Presentation of a reading and case study (25%). 3. Short Reading Responses (2x): 500-word reflections on assigned texts or case studies (20%) 4. Final Paper: 3000-3500 word paper on a topic of choice (40%). Poslední úprava: Sojka Miroslav, Mgr. (12.05.2025)
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Předmět zahrnuje tato témata: 1. Introduction: From Structural Injustice to PopulismReading: Fukuyama, Identity: The Demand for Dignity and the Politics of Resentment (Ch. 1). 2. Critical Legal Theory (CLT) Reading: Unger, The Critical Legal Studies Movement (Ch. 4). 3. Law and the Construction of Social Categories Reading: Haslanger, Resisting Reality (Ch. 3). 4. Law as a Technology of Classification: Gender Reading: Crenshaw, “Mapping the Margins.” Case Study: Goodwin v. United Kingdom (ECtHR, 2002). 5. Law as a Technology of Classification: Race Reading: Haney López, White by Law (Ch. 5). Case Study: D.H. and Others v. Czech Republic (ECtHR, 2007). 6. Law as a Technology of Classification: Islam Reading: Farris, In the Name of Women’s Rights (Ch. 3). Case Study: S.A.S. v. France (ECtHR, 2014). 7. Affirmative Action Reading: Appiah & Gutmann, Color Conscious (Section 2). 8. The EU Context: Gender Equality & Anti-Racism Readings: European Commission, Gender Equality Strategy 2020-2025; EU Anti-Racism Action Plan 2020-2025. 9. Populism and the Politics of “Reverse Discrimination” Reading: Thompson Ford, Rights Gone Wrong (Ch. 1). Case Study: Students for Fair Admissions v. Harvard (2023). 10. Alternatives to Adversarial Remedies Reading: Thompson Ford, Rights Gone Wrong (Ch. 5). 11. Social Identity vs. Collective Identity Reading: Pippin, Hegel’s Practical Philosophy (Ch. 7). 12. Identity Constitutionalism: A New Framework Reading: Dumbrovsky & Kaul (forthcoming). Poslední úprava: Sojka Miroslav, Mgr. (12.05.2025)
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1. APPIAH, Kwame A. & Amy GUTMANN. Color Conscious: The Political Morality of Race, Princeton (NJ): Princeton University Press, 1998. 2. CRENSHAW, Kimberley. “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color.” Stanford Law Review 43(6) (1991): 1241–1299. 3. DUMBROVSKY, Tomas. “Popular Movements in 2030.” In Christoph Bezemek (ed.), Constitutionalism in 2030. Oxford: Hart, 2022, 185-206. 4. EUROPEAN COMMISSION. A Union of Equality: Gender Equality Strategy 2020–2025. Brussels: European Commission, 2020. 5. EUROPEAN COMMISSION. A Union of Equality: EU Anti-Racism Action Plan 2020–2025. Brussels: European Commission, 2020. 6. FUKUYAMA, Francis. Identity: The Demand for Dignity and the Politics of Resentment. New York: Farrar, Straus and Giroux, 2018. 7. HASLANGER, Sally. Resisting Reality: Social Construction and Social Critique. Oxford: Oxford University Press, 2012. 8. THOMPSON FORD, Richard. Rights Gone Wrong: How Law Corrupts the Struggle for Equality. New York: Farrar, Straus and Giroux, 2011. 9. UNGER, Roberto. The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press, 1986. Poslední úprava: Šicnerová Barbora, Mgr. (15.09.2025)
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