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 Critical Legal Studies and Law and Economics movements in the U.S., and raises questions about the Law and Literature movement.

How do economists persuade their readers that one policy is superior to another? A glance at the literature on welfare economics quickly provides the answer to this question: Economists enter policy debates armed with mathematical models, evaluating options on the basis of their consequences. Economists typically classify a policy change as a welfare improvement with respect to the status quo if the gain realized by the winners exceeds the harm sustained by the losers. The best policy becomes the one that (...) generates the highest net benefit. (shrink)

This article joins the debate over institutional change with two propositions. First, all institutions are syncretic, that is, they are composed of an indeterminate number of features, which are decomposable and recombinable in unpredictable ways. Second, action within institutions is always potentially creative, that is, actors draw on a wide variety of cultural and institutional resources to create novel combinations. We call this approach to institutions creative syncretism. This article is in three parts. The first shows how existing accounts of (...) institutional change, which are rooted in structuralism, produce excess complexity and render the most important sources and results of change invisible. We argue that in order to ground the theory of creative syncretism we need a more phenomenological approach, which explains how people live institutional rules. We find that grounding in John Dewey’s pragmatist theory of habit. The second part of the article explains Dewey and shows how the theory of habit can ground an experiential account of institutional rules. The third part presents a field guide to creative syncretism. It uses an experiential approach to provide novel insights on three problems that have occupied institutionalist research: periodization in American political development, convergence among advanced capitalist democracies, and institutional change in developing countries. (shrink)

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies 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 Critical Legal Studies 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 Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory. (shrink)

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire legal system. (...) But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world. (shrink)

In this paper the authors argue that the exploration of the nature of needs and rights should begin with the actually existing organization of care and of justice in society. The authors raise two key concerns with this organization: 1) the invisibility of care to some, and 2) the inaccessibility of rights to others. Recent work by care scholars has called attention to the ways the current organization of care work perpetuates the myth of self-sufficiency for some, while reducing others (...) to mere dependents. Law and Society scholars have demonstrated the problems of uneven access to legal remedies within the current organization of the legal system. Addressing these concerns simultaneously reveals both the problems of the current organization of needs and rights as well as illuminating alternative possibilities. The authors argue, first, that a justice perspective, based on rights is inadequate because its presumed universality is belied by the reality of the inaccessibility of rights to many. Second, the authors argue that a care perspective, currently formulated upon the assumption that only some people have needs, is also flawed because its presumed particularity distorts the human experience and subsequent policies. Instead, the authors need to conceive of care in a public way that permits both rights and needs to be understood as applicable to all. The authors propose some initial thoughts about how to create such a public concept of care. (shrink)

This article argues—against the present compatibilist orthodoxy in the philosophy of criminal law—for the contemporary relevance of a kind of critique of criminal law known as the ‘determinist challenge’, through a reconstruction of Theodor Adorno’s thought on freedom and determinism. The article begins by considering traditional forms of the determinist challenge, which expressed a widespread intuition that it is irrational or inappropriate for the criminal law to hold people responsible for actions that are causally determined by social and psychological forces (...) in such a way that they cannot be said to have acted freely. Yet as traditionally presented it was possible for its opponents to interpret this challenge as an incompatibilist position within the traditional free will/determinism debate, and to present compatibilist arguments against it—in particular, that the determinist challenge is unmotivated and has implausible implications. It is argued that these compatibilist objections hold only on a certain interpretation of the determinist challenge, but that this interpretation is not the only one available. Adorno’s distinctive position on freedom and determinism is presented as an alternative version of the challenge, which cannot be assimilated to the terms of the traditional compatibilist/incompatibilist disputes. This novel, ‘metacritical’ version of the determinist challenge is essentially a social–historical, not metaphysical, thesis about the moral significance of the freedom-undermining effects of modern social forms. As such, it is argued, it is invulnerable to the usual compatibilist objections, and presents a serious challenge to our criminal legal institutions. (shrink)

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the (...) rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues. (shrink)

“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined (...) in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

Political theorists, increasingly, are realizing the virtues of contextuality to conceptual analysis. Just as theory may provide useful standards for the assessment of political practices, so may application of theoretical constructs within particular contexts provide a critical corrective to theory. This essay relates work undertaken within sociolegal studies applying a constitutive methodology to such efforts to contextualize political theorizing. The essay describes how the emphasis placed by constitutive theory on locality and meaning entails a contextual analysis. The essay then demonstrates (...) how a constitutive and contextual approach can enhance our understanding of the moral issues surrounding differentiated citizenship policy. While the most obvious cost associated with differentiated citizenship policy is a loss in formal equality, a contextual assessment demonstrates the prospect of an even deeper, though ultimately contingent, moral loss in self-invention. (shrink)

Notwithstanding the EU endorsement, so far Responsible Research and Innovation (RRI) is discussed as regards its definition, its features and its conceptual core: innovation and responsibility. This conceptual indeterminacy is a source of disagreements at the political level, giving rise to a plurality of outcomes and versions upheld within the same model of governance. Following a Charles Taylor’s suggestion, this conceptual opening of the RRI model can be explained by the existence of plural, clashing moral frameworks: discourse ethics, Aristotelian ethics, (...) care ethics, dignitarian ethics, rights-based moralities etc. Given the diffusion in the RRI literature of references to care ethics and its justification of participation and responsibility, I will compare the conceptual premises of this philosophical line with those of ethics of rights, which have been criticised by advocates of care ethics. I will argue that public engagement based on only needs cannot lead to responsible outcomes since it produces however the exclusion of some needs, covered instead by rights. In order for participation to be effective, rights or an alliance between the two perspectives is required. (shrink)

Empirical investigation of legal systems is emerging as a leading trend in both the social sciences and the legal academy in the early twenty-first century. Law reviews are now filled with studies reporting empirical data. Because empirical investigation of law commonly seeks to inform contentious social and political debates, however, its research often fuels more debate than it resolves. Partisans on both sides of contentious issues now cite the same body of research to support their reform efforts. However, social science (...) research on law is not a useless undertaking, as it can sharpen debate. But the hope that the new empirical legal studies movement will become a neutral source of information for policy makers is unlikely to be realized. (shrink)