In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient ...

A major statement from one of the foremost legal theorists of our day, this book offers a penetrating look into the political nature of legal, and especially judicial, decision making. It is also the first sustained attempt to integrate the American approach to law, an uneasy balance of deep commitment and intense skepticism, with the Continental tradition in social theory, philosophy, and psychology. At the center of this work is the question of how politics affects judicial activity-and how, in turn, (...) lawmaking by judges affects American politics. Duncan Kennedy considers opposing views about whether law is political in character and, if so, how. He puts forward an original, distinctive, and remarkably lucid theory of adjudication that includes accounts of both judicial rhetoric and the experience of judging. With an eye to the current state of theory, legal or otherwise, he also includes a provocative discussion of postmodernism. Ultimately concerned with the practical consequences of ideas about the law, A Critique of Adjudication explores the aspects and implications of adjudication as few books have in this century. As a comprehensive and powerfully argued statement of a critical position in modern American legal thought, it will be essential to any balanced picture of the legal, political, and cultural life of our nation. (shrink)

Jurisprudence is the prudence of jus, law's consciousness and conscience. Throughout history, when thinkers wanted to contemplate the organisation of society or the relationship between authority and the subject, they turned to law. All great philosophers, from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. But jurisprudence is also the conscience of law, the exploration of law's justice and of an ideal law or equity at the bar (...) of which state law is always judged. Jurisprudence brings together 'is' and 'ought', the positive and the normative, law and justice. But after a long process of decay, legal theory is today characterised by cognitive and moral poverty. Jurisprudence has become restricted and academically peripheral, a guidebook to technocratic legalism and a legitimation of the existent. Critical jurisprudence returns to the classical tradition of a general philosophy of law and adopts a much wider concept of legality. It is concerned both with posited law and with the law of the law. All legal aspects of the economic, political, emotional and physical modes of production and reproduction of society are part of critical jurisprudence. This widening of scope allows a radical rethinking of the nature of rights, justice, sovereignty and judgement. A political philosophy of justice today must examine the political economy of law; transitions from Empire to nation; ideological and imaginary constructions through which we understand ourselves and relate to others; ways in which gender, race or sexuality create forms of identity that both discipline bodies and offer sites of resistance. Law's complicity with political oppression, violence and racism has to be faced before it is possible to speak of a new beginning for legal thought, which in turn is the necessary precondition for a theory of justice. Critical Jurisprudence offers an ethics of law against the nihilism of power and an aesthetics of existence for the melancholic lawyer. (shrink)

Suggests an open system of psychological exploration to cut through accepted norms of morality, language, and politics.

Deconstruction both by its friends and enemies has come to be associated with a set of cliches that completely misunderstands its ethical aspiration. It is particularly within the field of law that we can see the ethical force of deconstruction, and also illuminate its concrete and practical importance. In The Philosophy of the Limit Drucilla Cornell examines the relationship of deconstruction to questions of ethics, justice and legal interpretation. She argues that renaming deconstruction "the philosophy of the limit" will allow (...) us to be more precise about what deconstruction actually is philosophically and hence to articulate more clearly its significance for law. Cornell explores the ethical and juridical significance of the so-called postmodern rebellion against metaphysics. A shared ethical rebellion links philosophers as different as Theodor Adorno, Jacques Derrida, Jacques Lacan, and Emmanuel Levinas. Together they present a new ethical configuration, new in its difference from both the critical social theory of J$u$urgen Habermas and the analytic jurisprudence of Nagel and Rawls. A key aspect of this newness is the centrality given to the relationship between questions of ethics and sexual difference. Cornell argues that the appeal of Lacan's analysis to feminists is that it helps to explain the profound hold the gender hierarchy has over Western culture, including its theories of political transformation. Under a Lacanian analysis the law of gender identity will be replicated in the laws of an existing legal system. This means that we cannot hope to sustain legal reforms unless the gender hierarchy is challenged. Cornell examines Derrida's position on the significance of the gender hierarchy in philosophy and explores its ethical and political importance. Derrida's intervention against legal positivism has important implications for the legal reforms necessary to protect marginalized groups. His emphasis on the limit, she argues, is crucial to thosewhose well-being and very lives may depend on legal transformation, women and homosexuals, for example. In an important contribution to legal philosophy, Cornell explores the affinities of Derrida's writings with recent liberal analytic jurisprudence. She also explores the differences. Comparing Rawls's and Derrida's accounts of justice, she argues that Derrida gives greater attention to the necessary utopian moment in his insistence on maintaining the divide between law, established norms, and justice. Cornell's focus on the importance of the limit and the centrality of the gender hierarchy allows her to offer a view of jurisprudence different from both critical social theory and analytic jurisprudence. As we watch the long-fought-for civil rights of women systematically overturned, we have reason to think about how the connections she makes shed light on an underlying truth of our social, political, and legal reality. (shrink)

An original and comprehensive study of the history, symbols and languages of the common law tradition.

DIVThe author argues for an understanding of judging that rejects foundationalism (the effort to ground legal thought on something), attempts to carve out a "middle way" between formalist and the political visions of law, and offers a reconceptual/div.