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Critical Legal Studies as Something that ‘was’ as opposed to ‘is’



Subject Law and governance Pages 3 Style APA


It is a common observation especially in case briefs that legal issues are mostly presented in past tense rather than present tense. This observation has been made by various students and equally acknowledged by the professor who insisted that Critical Legal Studies represented as something that was rather than something that is. This observation is interesting and thus, begs for further research. It is upon this basis that this research paper integrates external academic sources to refute the professor’s claim.

Prior to conducting a derailed research, it is important to acknowledge the general rule applied in law studies that past tense indicates past events while present tense indicates something that always or generally true. As a result, it is argued that writers of legal studies prefer using past tense when they are focusing on specific facts in a given case while present tense is used when the author wants to address a larger principle (Horowitz, 2017). An analysis of these statements affirms that when legal experts are documenting a case brief, they have to decide between two choices. First, they have to determine how to frame the case issues. For instance, they have to question whether it is necessary to focus on the facts presented in a specific case or whether it is worthier focusing on the general principles at hand. In addition, the experts have to decide whether they should consider both sides. If they have to take a balanced stance and integrate both present and past tense, then they have to ascertain with clarity the extent to which the presentation of the case brief will affect the grammatical presentation and syntax of the sentences.

The bottom-line is that when framing the case issues or making any writing in critical legal studies, it is quintessential to ensure that the tense used should enhance the completeness and accuracy of the meaning being portrayed. Backed by this analysis, it is noted that students and legal experts have the choice of using either past or present tenses as long as they accurately present their issues. In addition, they have to consider whether the issue being documented is either general or issue-specific. Farrell (2018) emphasizes that understanding the impact of tenses on the way issues are presented is an important element in critical legal studies as misrepresentation of information could lead to miscommunication. Given the sensitive nature of law, failure to completely and correctly represent grammatical terminologies could be catastrophic.

As much as understanding how to correctly use present and past tense is important to CLS, it is notable that was is predominantly used more than is. According to Trevino (2017) it is much easier to present legal cases and critical legal arguments in past tense than in present tense. This argument explains why most case studies are presented as ‘was’ as opposed to ‘is’. Secondly most critical studies use was because it entails a detailed study of past events that defined the legal field. This statement acknowledges that critical legal studies is both a movement and a school of critical theory that emerged in the 1970s with an intention of demonstrating the ambiguity in the prevailing laws and legal doctrines (Trevino, 2017). Because of the connection between this the CLS School and history, it is important that most of the writing is done in ‘was’ rather than ‘is’.

It is evident that critical legal studies is founded on three key features, namely; critique of liberal laws, critique of rights, and concerns over the nature of legal education. Liberal laws are existing laws on liberty and equality. Human rights are existing laws that have been existence for decades. Legal education is also a historical study that captures historical practices that have defined and shaped the discipline for the past centuries (Trevino, 2017). Because of the historical nature of law, and the key focus of CLS, it is only prudent to do most of the writing in was tense rather than is. In spite of these arguments, it is still noticeable that CLS captures emerging concepts using as ‘is’ as opposed to ‘was’. For instance, CLS notes that sovereign power means…before presenting the definition. This statement justifies that both past and present tenses are equally valuable to CLS.

In conclusion therefore, both was and is are important tenses in critical legal studies. It is important that legal experts and students alike understand how to crisply and accurately represent their case issues to reduce chances of misrepresentation of facts. Research further shows that ‘was’ is mostly used in CLS because of the historical nature of the study, however, both is and was are valuable tenses to legal experts and especially those in the CLS school.



(Formatted in APA Style)

Farrell, R. C. (2018). Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions. Loy. U. Chi. LJ, 40, 1.

Horowitz, S. (2017). The legal “Issue” of present tense vs. past tense. Retrieved from: https://stjohnslegalenglish.com/2017/02/08/the-legal-issue-of-present-tense-vs-past-tense/

Trevino, A. J. (2017). Critical Legal Studies. In The Sociology of Law (pp. 391-414). Routledge.

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