The critical jurist and the moment of theory

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Notes

1. A Sarat, L Douglas and M M Umphrey (eds) Law's Madness, Ann Arbor: University of Michigan Press, 2003, p 1.

2. Richard Posner, ‘What Has Literary Theory to Offer Law?’, Stanford Law Review 53, 2000, p 195.

3. I am referring to the textually-oriented ‘Law and Literature’ school. With a certain virtuosity—and sometimes but not always with humour—the adherents of ‘Law and Economics’ seek to align the juridical order with market theory.

4. Austin Sarat (ed.), The Killing State: Capital Punishment in Law, Politics and Culture, Oxford: Oxford University Press, 2001.

5. See, respectively, P Barry, Beginning Theory: An Introduction to Literary and Cultural Theory, Manchester: Manchester University Press, 2005; Wolfgang Iser, How to Do Theory, Oxford: Blackwell, 2006; Terry Eagleton, After Theory, London: Allen Lane, 2003.

6. M P Golding and W A Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory, Oxford: Blackwell, 2005.

7. This unprecedented medieval ensemble constitutes—in Pierre Legendre's view—an essential cornerstone of modern Western civil order. He refers variously to the ‘ensemble romano-canonique’, the ‘montage romano-canonique’ and the ‘combinatoire romano-canonique’. See Pierre Legendre, Sur la question dogmatique en occident. Aspects théoriques, Paris: Fayard, pp 136, 163, 245.

8. Gerald Postema, Bentham and the Common Law Tradition, Oxford: Clarendon Press, 1986.

9. A W B Simpson, Legal Theory and Legal History. Essays on the Common Law, London: Hambledon Press, 1978, p 274.

10. Simpson, Legal Theory, p 282.

11. Michael Foley, The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government, London: Routledge, 1989, p 10.

12. Cass R Sunstein, Legal Reasoning and Political Conflict, New York: Oxford University Press, 1996.

13. Foley, Silence of Constitutions, p 23.

14. Foley, Silence of Constitutions, p 34.

15. In fact, in this period major inquiries were undertaken in respect of legal education reform. The 1983 Law and Learning/Le droit et le savoir (the Arthurs Report) in Canada and the 1987 Pearce Report in Australia were both concerned with broadening the scope, content and skills of legal education and research.

16. See, for instance, M Kelman, A Guide to Critical Legal Studies, Cambridge, MA: Harvard University Press, 1987.

17. Duncan Kennedy, Legal Education as Training for Hierarchy: A Polemic Against the System, Cambridge, MA: Afar, 1983.

18. Duncan Kennedy, A Critique of Adjudication: Fin de Siècle, Cambridge, MA: Harvard University Press, 1997.

19. Duncan Kennedy, cited in Harvard Law Bulletin, Fall, 1996, p 24.

20. Left-legal and marxisant scholars have sustained substantial work in legal sociology and socio-legal research, ranging from empirical-statistical investigations to emancipatory visions of new social relations. Moves to study ‘law in context’ display both tendencies. Names include Ric Abel (in the American scene) and Alan Hunt (in the British).

21. On law and feminist theory, see J Richardson and R Sandlands (eds), Feminist Perspectives on Law and Theory, London: Cavendish, 2000. On critical race theory, see Kimberle Crenshaw et al. (eds), Critical Race Theory: The Key Writings that Formed the Movement, New York: New Press, 1995.

22. R Michael Fischl, ‘The Epidemiology of Critique’, University of Miami Law Review 57, 2003, pp 475–495.

23. Felix Cohen, ‘Transcendental Nonsense and the Functional Approach’, Columbia Law Review 35, 1935, p 809.

24. Cohen, ‘Transcendental Nonsense’, p 809.

25. Cohen, ‘Transcendental Nonsense’, p 809.

26. See Jerome Frank, Myth and Reality in American Justice, New York: Atheneum, 1963, pp 62–79.

27. H L A Hart, ‘American Jurisprudence through English Eyes: The Nightmare and the Noble Dream’, Georgia Law Review 11(5), 1977, pp 969–989. The ‘nightmare’ was the realists’ recognition of adjudication as ‘essentially a form of lawmaking’ and their treatment of this state of affairs as the precondition of understanding the nature of law (pp 973–974). Specifically, in the nightmare vision, ‘legal rules are treated as displaceable presumptions or working hypotheses, to be modified or rejected if the predictable consequences of their application in a shifting social context proved unsatisfactory’ (p 976). Jerome Frank's Law and the Modern Mind is singled out as a particular horror.

28. See Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law, Berkeley: California University Press, 1995. Among the realists, see Jerome Frank, Law and the Modern Mind, New York: Tudor Publishing.

29. On ‘law and literature’, see Robert H Weisberg, Poethics and other Strategies of Law and Literature, New York: Columbia University Press, 1992; G Binder and R H Weisberg, Literary Criticisms of Law, Princeton, NJ: Princeton University Press. See also the journal Law and Literature.

30. C Douzinas, P Goodrich and Y Hachamovitch, ‘Introduction; Politics, Ethics and the Legality of the Contingent’, in Politics, Postmodernity and Critical Legal Studies: The Legality of the Contingent, London and New York: Routledge, 1994.

31. Douzinas et al., ‘Introduction’, p 1.

32. Douzinas et al., ‘Introduction’, pp 1–2.

33. Douzinas et al., ‘Introduction’, p 22.

34. Paul Campos, Pierre Schlag and Stephen D Smith, Against the Law, Durham, NC: Duke University Press, 1996.

35. As Dean of the Harvard Law School in the late nineteenth century, Langdell pursued the academic project of an axiological science of law. Such a project was assisted by the rise of the federal jurisdiction, independent of the territorially bound localism of state laws.

36. See the symposium ‘Beyond Right and Reason: Pierre Schlag, The Critique of Normativity, and The Enchantment of Reason’ University of Miami Law Review 57, 2003; particularly Peter Goodrich, ‘Pierre the Anomalist: An Epistemology of the Legal Closet’, pp 791–825.

37. Duncan Kennedy, ‘Pierre Schlag's The Enchantment of Reason’, University of Miami Law Review 57, 2003, p 513, memorably characterises The Enchantment of Reason as ‘a book that so vigorously refuses not just political correctness but all concession to our desire that enlightenment should be politically edifying’.

38. Pierre Schlag, The Enchantment of Reason, Durham, NC: Duke University Press, 1998, p 1.

39. Schlag, Enchantment, p 145.

40. Pierre Schlag, ‘A Reply’, University of Miami Law Review 57, 2003, pp 478–479.

41. Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind, New York: New York University Press, 1996, p 165. In this respect, Schlag's scholarly persona is not that of the exemplary ‘anti-lawyer’ whose critique of law (and state) can be represented as ‘religion by other means’. See David Saunders, Anti-lawyers: Religion and the Critics of Law and State, London and New York, Routledge, 1997.

42. Schlag, Laying Down the Law, p 10.

43. Pierre Schlag, ‘A Reply—The Missing Portion’, University of Miami Law Review 57, 2003, p 1030.

44. Schlag, Enchantment, p 12.

45. Schlag, Laying Down the Law, p 166.

46. The phrase is from Ronald Dworkin, ‘The 1984 McCorkle Lecture: Law's Ambition for Itself’, Virginia Law Review 71, 1984, p 173. The magicians are the moral philosophers. It falls to them to work out ‘the purer form of law within and beyond the law we have’ (Ronald Dworkin, Law's Empire, London: Fontana, 1986, p 407). Undaunted, Schlag suggests that the philosopher Dworkin, despite authoring Law's Empire, could never get even a walk-on part in the down and dirty world of L.A. Law.

47. Paul Campos, Jurismania: The Madness of American Law, New York: Oxford University Press, 1998. Clearly, this is a different take on ‘law and madness’ from that cited at the outset of the present article.

48. Schlag, Laying Down the Law, p 5.

49. Bruno Latour, La Fabrique du droit. Une éthnographie du Conseil d'Etat, Paris: Editions La Découverte, 2002, p 26. All quotations from Latour are in my translation. Until otherwise indicated, all references are to this work, and are given as page numbers in parentheses in the text.

50. Latour dismisses Bourdieu's concept of an ‘autonomous juridical field’ as a ploy allowing the latter to deflect a charge of reductive ‘sociologism’ (152). For savage criticism of the damage done by ‘le sociologisme’ to French legal education since the 1960s, see Legendre, Sur la question dogmatique, pp 168–169, 188.

51. Alan Watson, Failures of the Legal Imagination, Philadelphia, PA: University of Philadelphia Press, 1988, p 20, presents a historically grounded version of the hypothesis that, from the juridical point of view, nothing necessarily follows from the mere fact of social change:

The proposition is that in any country, approaches to lawmaking (whether by legislators, judges or jurists), the applicability of law to social institutions, the structure of the legal system, the formulation and scope of legal rules are all in very large measure the result of past history and overwhelmingly the result of past legal history, and that the input of other even contemporary societal forces is correspondingly slight.

Societal forces change, but for the most part law ‘remains, not because of any particular message, but simply because it is there’ (55).

52. For Schlag, Enchantment, p 44, ‘shallowness is particularly troublesome for those intellectuals whose ambition is to perfect thinking’.

53. Anton Schutz, ‘“Legal Critique”: Elements for a Genealogy’, Law and Critique 16, 2005, p 81. Until otherwise indicated, all references are to this work, and are given as page numbers in parentheses in the text.

54. Schutz acknowledges Pierre Legendre's account of ‘christian-postchristian anti-legalism as the protagonist of Western culture’ (87).

55. Latour, La Fabrique du droit, p 224.