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Legal Theory

From the beginning, I have seen law as the institutional form of the life of a people and as a place where interests meet ideals, and spirit struggles with structure. Law is not a separate thing; it is an expression of all society and culture.

I have opposed the style of legal analysis that now prevails in the United States and increasingly throughout the world. This analytic procedure reduces the work of legal thought in a democracy — to inform and to broaden the conversation about the institutional present and the institutional futures of society — to the narrow business of deciding how judges and other officials should decide cases. Its theoreticians seek to humanize the world rather than to change it. Because they do not resist they cannot understand.

The overriding aim of my work in legal theory has been to show how we can use a changed understanding of law and a revised practice of legal analysis to recover, from the bottom up and from the inside out, the vision of social alternatives. If we can no longer imagine and realize such alternatives as readymade systems like “socialism,” we must find them under other disguises and work them out in other forms. Through my writings about law, I have tried to show how.

1. The Critical Legal Studies Movement: Another Time, a Greater Task (Book, 2015)

This book is a revised version of my 1986 manifesto for the critical legal studies movement, preceded by an essay that places the movement and the book in context, reconsiders them in the light of subsequent developments, and looks to the future. The central theme of the essay is the vocation of legal thought now.

2. What Should Legal Analysis Become? (Book, 1996)

“What Should Legal Analysis Become?” (Verso 1996), proposes a way of turning one of the two major practical social disciplines (the other one is political economy) into an instrument of constructive institutional and ideological imagination. This book should be read together with False Necessity, the introduction to the new edition of False Necessity, and my Boutwood Lectures “The Second Way.”

3. The Critical Legal Studies Movement (Book, 1983)

In the United States my work has often been associated with a tendency in legal thought called “Critical Legal Studies” even though legal theory represents only a small and subsidiary part of my thinking and writing. In the 1970s some of us came up with the label “critical legal studies movement,” and used it to disrupt the post-New Deal consensus then dominating the American legal academy.

During its heyday “critical legal studies” aroused the anger of groups in the American establishment unresigned to seeing any part of the formation of American elites disturbed by dissidents and troublemakers. “Critical legal studies” has long ceased to exist as an organized movement. However, one of its enduring consequences has been that legal analysis as taught in the leading American law schools is now the only social discipline not under the control of a centrist-conservative orthodoxy of method and conception. Many of these law schools have reverted to type and gone back to sleep, but the consensus has been neither reestablished nor replaced. In “What Should Legal Analysis Become?” I suggest how best to make use of this opening, in the rest of this world as well as in the United States.

Published in 1983, “The Critical Legal Studies Movement” is a revised and expanded version of a talk given in 1982. It is a programmatic intervention in legal thought: a proposal for the direction that the then nascent movement of critical legal studies should take, not a description of what people engaged in this movement thought, said, and wrote. My proposal fell on deaf ears. Critical legal studies preferred, for the most part, to gravitate around familiar themes: the radicalization of the idea of doctrinal indeterminacy, a neo-marxist functionalist approach to the place of law in society, and identity politics. In my own work, the expanded and transformed doctrinalism explored in this little book would later give way to an attempt to turn legal thought into a practice of institutional imagination. The “internal criticism” tried out here prefigured other, less narrowly doctrinal efforts to recover, from the bottom up and from the inside out, the vision of alternative possibilities. The dominant styles of legal analysis had sacrificed this vision to the humanization of the inevitable.

4. Law in Modern Society: Towards a Criticism of Social Theory (Book, 1976)

Law in Modern Society (Free Press 1976) was my second book, published one year after “Knowledge and Politics.” Related by its typological and comparative method to the tradition of Montesquieu, Maine, Durkheim, and Weber, it treats each type of law as the master tool for making and maintaining a type of society. The first and the last chapters point the way to the exercise of social analysis and institutional imagination I would later develop in my Politics books, beginning with “Social Theory: Its Situation and Its Task.”

5. The Universal History of Legal Thought

The Universal History of Legal Thought is a fragment from a work in progress in Legal Theory. It discusses the relation among law as the doctrinal quest for normative order, law as the will of the sovereign, and law as the unexplained and unjustified structure of society. On this basis, it proposes an agenda for legal thought now.

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