CriticalLegalStudies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. CriticalLegalStudies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of CriticalLegalStudies to argumentation theory, (...) this essay briefly discusses the role of legal reasoning in the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for CriticalLegalStudies, and considers the implications that this conception of jurisprudence has for argumentation theory. (shrink)
This volume surveys the current state of the criticalLegalStudies movement- a fifteen year old initiative whose proponents are committed to building a strong progrsseve community inside law schools and the legal profession. In his introduciton, Boyle argues that CLS has succeeded because it analyzes the inadequacies of rights talk, technocracy, and law and economics, and because it connects theory with the everyday experiences of lawyers and legal scholars. Articles present the CLS perspective on (...)legal reasoning, legal hisory, substantive law, legal practice, and social theory. (shrink)
Laws of Postmodernity is the first work of legal scholarship to apply postmodern jurisprudence to an analysis of a number of substantive areas of law. In analyzing the cultural significance of law, the contributors show how critical jurisprudential analysis undermines positivistic attempts to support a normative viewpoint of the legal order. In addition, they criticize contextual, sociological accounts of legal phenomena. The contributors explore blasphemy laws in the wake of the Salman Rushdie affair, and French (...) class='Hi'>criticallegal theory-- particularly the work of Pierre Legendre--to highlight the repression of psychoanalysis within jurisprudence. Through detailed accounts, Laws of Postmodernity clearly illustrates the practical application and theoretical significance of postmodern jurisprudence. (shrink)
CriticalLegal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie criticallegal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the criticallegalstudies movement by laying out a framework of five general themes: (...) contradictions, contingency, patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)
In this first book-length liberal reply to CLS, Andrew Altman systematically examines the philosophical underpinnings of the CLS movement and exposes the deficiencies in the major lines of the CLS argument against liberalism.
THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS. -/- The conflict between liberal legal theory and criticallegalstudies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of (...) this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into an unpalatable moral relativism on which there is no non-arbitrary basis between a justice that underwrites forms of domination such as slavery and a justice that condemns such forms of domination is equally powerful and compelling. I show that there is a way to harmonize both views that is subject to empirical test. -/- First I show that the most widely accepted and influential formulation of liberal justice, John Rawls' Justice as Fairness, in. e.g, A Theory of Justice, cannot avoid the relativistic challenge because it would not be accepted, as a matter of sociological fact, by real people in a divided society once the "veil of Ignorance" is removed and real people step out from the Original Position. To put it differently, different reflective equilibria are inevitable in a divided society. Given the weight that Rawls properly puts on the realizability of a conception of justice and its stability in practice, this is a fatal objection. There can be no divided society that is "well ordered" in Rawls' sense, governed by a shared conception of justice and known to be so governed. -/- I then turn to the most powerful statement of the CLS view, Milton's Fisk's relativistic account in The State and Justice. For Fisk, justice is a compromise between what the dominant groups can compel and what the the subordinate groups will acquiesce to., There is no one such compromise in any given situation, so the account is in that sense relativistic, but more deeply, it is relativistic in that it offers no non-arbitrary, non-question begging way to choose between the official justice of, e.g., a slaveholding society and and the radical justice of the slaves, which has no place for slaveholders as a group or slavery as an institution.All that Fisk can offer is an arbitrary existential choice: I'm with the slaves. (Or the slaveowners.) Most of us would find this disconcerting or even unacceptable. -/- I show that Fisk's general sort of account can be modified to allow for an non-arbitrary choice. Given general facts about human nature, societies based on domination will produce resistance that over the long run will diminish or eliminate various forms of domination. Through a sort of ratchet effect, rights won will be hard if not impossible to reverse. Societies embodying forms of domination can therefore be compared on dimensions of stability: the more domination, the more resistance, and the less stability. Such societies are inferior on the dimension of justice to more emancipatory society on the terms of both kinds of justice, official and radical. -/- This is not question begging because regimes of domination incorporate stability no less than more emancipatory social orders. The choice between official justice embodying domination and radical justice that does not is not arbitrary because it is based on a shared commitment to long term stability. This offers an empirical test of which social orders are more justice, and a prediction that over time, domination will tend to decrease. (shrink)
This essay discusses the most recent manifestations of the debate of the law and literature movement. The essay traces the evolution of the Law and Literature schools and identifies some of their adherents and conclusions, shows how these schools have influenced the conceptual development and teaching of American law, presents connections between the CriticalLegalStudies and Law and Economics movements in the U.S., and raises questions about the Law and Literature movement.
Legal Realism Regained presents a comparison between the legal realists, a group of pragmatic legal theorists from the 1920s and 1930s, and criticallegalstudies, a movement of postmodern legal theory during the end of the twentieth century. The book argues for a return to legal realism and the classical pragmatism of John Dewey and William James and for a rejection of the postmodern critique of criticallegalstudies. It (...) discusses the two movements with respect to three topics: their view of history, their view of social science, and their view of language. Rejecting the claim that criticallegalstudies can be seen as the heir of legal realism, Legal Realism Regained argues that, with respect to each of these three topics, the realists still present a stronger argument than their more radical descendants. (shrink)
This essay investigates the indeterminacy thesis - roughly the claim that the content of authoritative legal materials (such as the texts of constitutions, statutes, cases, rules, and regulations) does not determine the outcome of particular legal disputes. The indeterminacy thesis can be formulated as either "strong" or weak." The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.The strong indeterminacy thesis is (...) the claim that all cases are "hard" cases - or that in any case any conceivable result can be derived from existing legal doctrine. Strong indeterminacy does not hold if there are easy cases - cases in which some outcomes cannot be legally correct. For example, if it were the case that the first paragraph of this abstract did not slander Gore Vidal, then there would be at least one easy case, and strong indeterminacy would be false.Weak versions of the indeterminacy thesis include the claim that important cases are indeterminate, that the law does not necessarily determine outcomes, or that every case could become indeterminate if political conditions supported indeterminacy. These weaker claims may be true, but they lack the critical bite associated with strong indeterminacy.The essay also distinguishes between "determinacy," "indeterminacy," and "underdeterminacy." The law is "determinate" with respect ot a given case if and only if the set of results that can be squared with the legal materials contains only one member. The law is "indeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is identical with the set of all imaginable results. The law is "underdeterminate" with respect to a given case if and only if the set of results that can be squared with the legal materials is a nonidentical subset of the set of all imaginable results.This article was first published in 1987, and some of the author's views have been revised in interim. (shrink)
_Bioethics: Legal and Clinical Case Studies_ is a case-based introduction to ethical issues in health care. Through seventy-eight compelling scenarios, the authors demonstrate the practical importance of ethics, showing how the concerns at issue bear on the lives of patients, health care providers, and others. A range of central topics are covered, including informed consent, medical futility, reproductive ethics, privacy, cultural competence, and clinical trials. Each chapter includes a selection of important legal cases as well as clinical case (...)studies for critical analysis. The case studies are often presented as moral dilemmas, and are conducive to rich discussion. A companion website offers a curated collection of relevant legal precedents as well as additional case studies and other resources. (shrink)
Postcolonial discourse is incredibly diverse and postcolonial art in Australia has numerous critical modes. This paper describes an approach in Contemporary Indigenous art that attempts a critique of the law from within the law rather than outside of it. It takes a radical form of over-proximity, rather than avant-garde distance, and finds the gap and failure in law’s attempt at creating legal subjects of us all. In the work of Gordon Bennett, Danie Mellor and the duo Adam Geczy (...) and Adam Hill, there is a working through the political and legal ramifications of the Indigenous subject in contemporary Australia. The focus on processes of initiation and subjectivization, or what Althusser called “interpellation” and show the effects of this interpellation in the Indigenous subject and offer modes of resistance. The artists are informed by Lacanian notions of subjectivization and utilise this approach to semiotics and power as the starting point for their critique. (shrink)
This book is a sophisticated, detailed, and original examination of the main ideas that have dominated Anglo-American legal philosophy since the Second World War. The author probes such themes as: whether there can be right answers to all disputed law cases; how laws and other rules impact on the practical rationality of actors subject to their authority; whether general principles justifying the law must themselves be thought of as part of the law binding on legal actors; and the (...) possibility of an interpretivist jurisprudence that is continuous with law practice in a given culture. (shrink)
This book challenges the usual introductions to the study of law. It argues that law is inherently political and reflects the interests of the few even while presenting itself as neutral. It considers law as ideology and as politics, and critically assesses its contribution to the creation and maintenance of a globalised and capitalist world. The clarity of the arguments is admirably suited to provoking discussions of the role of law in our contemporary world. The third edition provides contemporary examples (...) to sustain the arguments in their relevance to the 21st century. The book includes an analysis of the common sense of law; the use of anthropological examples to gain external perspectives of our use and understanding of law; a consideration of central legal concepts, such as order, rules, property, dispute resolution, legitimation and the rule of law; an examination of the role of law in women's subordination; and finally a critique of the effect of our understanding of law upon the wider world. This book is ideal for undergraduate and postgraduate students reading law. (shrink)
Critical management studies (CMS) has emerged as an influential paradigm for organization and management researchers in the last three decades. While various strands of CMS have been adopted to conceptualize or empirically investigate a myriad of organizational phenomena, researchers in the field have yet to substantively apply this paradigm to the study of business ethics. This is unfortunate inasmuch as CMS potentially offers important analytical tools from which to address a range of germane issues pertaining to business ethics. (...) As such, the aim of this article is to broadly introduce CMS to the business ethics scholarly community, underscoring particularly its central ontological and epistemological commitments. This article further identifies several important CMS-inflected research trajectories that scholars may pursue to explore pressing questions related to business ethics. In sum, the authors underscore the utility of CMS to the study business ethics and call for increased inquiry in this intersectional domain. (shrink)
Critical Management Studies (CMS) has become an accepted part of mainstream management research. Yet, as CMS research advances, it is our position that CMS's ethical potential is not being realized. Drawing on one of CMS's theoretical sources, Critical Theory (CT), we suggest that CMS has well embraced the CT element of critique, but it has not adequately achieved the element of praxis, thereby truncating CMS's emancipation project. This paper seeks to address this trend and recover the ethical (...) promise of CMS by proposing that CMS expand its conception of praxis beyond its current focus on critical pedagogy and participatory research. To do so we elaborate on a process model that utilizes both critique and praxis to bring about the practical change of existing structures of domination. (shrink)