Power Made Flesh: An Examination of Power in Critical Legal Studies

Neal D. Richards, Georgetown University

Abstract

The concept of “power” is central to critical legal studies. Nevertheless, there is little discussion of what theorists mean when they critique an area of law based on underlying power structures. Given the rather slippery nature of the power concept, this is unsurprising. Yet, because how one defines power requires defining one’s normative and epistemological presuppositions, having a coherent theory of power is essential to creating an effective critique of the current state of the legal discourse. Such a theory can be created by walking through the narrative of the history of human interaction leading to the present day. Power structures are shown to be formed through the dialectic of scarcity/opposition/counter-opposition. Ultimately, the narrative demonstrates how power becomes an inescapable construct by shaping our very understanding of the world through these dialectics. The nature of these dialectics is that they both continue to evolve and become more entrenched. As power advances, it becomes simultaneously more diffuse and difficult to attribute. This entanglement becomes the critical issue facing CLS.