An Introduction to Critical Legal Theory

225 Pages·1998·0.73 MB·English

by  Ian Ward

AN INTRODUCTION
TO
CRITICAL LEGAL THEORY
C
P
Cavendish
Publishing
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AN INTRODUCTION
TO
CRITICAL LEGAL THEORY
Ian Ward, BA, LLM, PhD
Professor of Law,
University of Dundee
C
P
Cavendish
Publishing
Limited
First published in 1998 by Cavendish Publishing Limited, The Glass House,
Wharton Street, London WC1X 9PX, United Kingdom
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© Ward, Ian 1998
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Ward, Ian
An introduction to legal theory
1. Law – Philosophy
I. Title
340.1
ISBN 1 85941 348 X
Printed and bound in Great Britain
PREFACE
In recent years, it has become very obvious that the boundaries of legal theory
have moved far beyond those which have tended to define the more narrowly
construed ‘province’ of jurisprudence, as John Austin described it a century
and a half ago. As we will see at various times in this book, classical modernist
jurisprudence, that which has enjoyed a considerable dominion in university
law schools for decades, even centuries, is only a part of legal theory properly
understood, only one theory amongst many. To an extent, this dominion was
founded on the assumption that Austinian jurisprudence is somehow ‘our’
jurisprudence. To teach classical English jurisprudence is to engage in an
overtly nationalistic act and, for far too many teachers and students, for far too
long, this has seemed to be justification enough. This book is part of a growing
determination, shared by critical legal theorists, that such a constrained and
constraining approach must now be abandoned. Classical jurisprudence is as
inadequate as it is debilitating. Quite simply, legal theory is not a science. At
least, it is not just a science. Indeed, there is no such thing as legal theory;
merely legal theories. Law is not any one particular thing, and cannot be
understood, analysed, described or whatever, in terms of one particular
discipline or methodology.
Rather, the study of law is a critical and an interdisciplinary exercise, and
this book is an attempt to reflect this belief. To engage in critical legal thinking
is to dispute the assertion that law can be understood, that it can be founded,
in one particular theory or one particular discipline or methodology. Law can
be described in terms of science certainly, but not just science, for law is also
philosophy, history, politics, economics, language and so on. This might seem
to be rather daunting. Classical jurisprudence, despite its many inadequacies,
does enjoy the virtue of being simple. The analytical ‘province’ is clearly
defined. In contrast, an approach to legal studies which demands that the
student of law engages with a multitude of other disciplines also demands an
openness of mind and a willingness to take chances. It is this which makes
critical and interdisciplinary legal theory so liberating. Once it is appreciated
that there are so many alternative ideas of what law actually might be, then it
can also be appreciated that law, ultimately, is what you think it is. Some may
think that law is a matter of political power, some may think it ultimately a
matter of morality, others may lean towards an economic or linguistic
understanding. Others may think that it is a mixture of all or some of these.
The choice, in the final analysis, is yours.
In a curious way, attempting to write a book about critical legal theories is
slightly perverse. Writing about anything can be exclusionary. Certain ideas
and certain thinkers will be privileged, as they are in any book. This paradox
is unavoidable, and all that can be said in mitigation is that there is no
intention to suggest that these are the only ideas or thinkers that are relevant
to critical legal theory. The book hopes to be suggestive, not determinate. It
seeks to address at least some of the more influential ideas, and in so doing
provide an informative illustration of what a critical legal theory can be. At
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An Introduction to Critical Legal Theory
the heart of the critical enterprise is the determination to convey the belief that
all theories of law, and all theorists, must be understood within their
particular context, historical, cultural, intellectual and so on. The following
seven chapters proceed from this contextual premise. At the same time, they
also seek to provide some sort of narrative history of legal theory. None of the
theories which we will encounter, even those in the first part of the first
chapter, the ideas of Plato and Aristotle, were original. Every legal theorist
recasts received wisdom, working with the past in order to redescribe the
present. Indeed, an appreciation of the historicity of any legal theory
determines critical legal thinking itself. In this sense, the study of legal
theories is akin to a genealogical exercise, the tracing of ideas as they are
shaped and reshaped from one context to another, from one time to another,
from one theorist to another.
The book is very much written with a student, as well as an academic,
audience in mind. Far too much legal theory has been written by academics
for academics, and to the exclusion of all others. There is precious little point
advancing an alternative interpretation of legal theory if it is one which can
only be heard by a handful of fellow academics, either sympathetically
inclined or otherwise. There is no point preaching either to the converted or to
the deaf. Legal theory must appear to matter to students, not just to a handful
of university teachers. Too often it is unpopular amongst students and
marginalised by law schools. There is no point just saying that a theoretical
study of law can be important, valuable and relevant in the real world. It must
appear to be so. The long dominion of classical and analytical jurisprudence
has witnessed the slow death of creative legal theory. Esoteric, irrelevant and
dull, certainly the dominion of the academic, classical jurisprudence has
strangled the intellectual aspirations of law students for decade after decade,
and the desire to breathe new life into legal theory provides the aspiration for
this book.
In the final analysis, if the book fails to establish what law ‘is’ then it will
have succeeded, for what law ‘is’ is a matter of opinion, nothing more and
nothing less and, if it helps you to decide what you think it ‘is’, then it will
have further succeeded. The aim may seem to be modest, but anything more
would be both preposterous and disingenuous in equal measure. Moreover, it
would be dangerous, because it would be an attempt to tell you what you
must think. A critical legal theory, exploiting the intrinsic polyvalence of
interdisciplinarity, refuses to accept any objective truth about what law ‘is’.
Instead, it demands the active engagement of the student interpreter, whether
it be the student of one term’s experience or a lifetime’s. It provides no
answers, merely one particular frame of intellectual reference. Legal theory, as
a discipline, will only seem to matter if it seems to belong. What law ‘is’ is not
something handed down on tablets of stone. In a world of opinions, the
critical legal world, the opinion of the individual reader is king, even if the
opinion maker is king maker. It is your opinion which matters, and it is you
vi
Preface
who has the power to choose whether anybody else’s does. With the caveats
in place, that law ‘is’ nothing more than opinion, and that your opinions are
the only ones which, ultimately, really matter, then we are ready to proceed.
Ian Ward
Dundee
July 1998
vii

CONTENTS
Preface v
1 Identifying Modernism 1
THE CLASSICAL TRADITION 1
The search for meaning 1
Law and order in Plato’s Republic 3
Aristotle and the ethics of virtue 6
Aristotelian jurisprudence 9
NATURAL LAW AND POLITICAL THEOLOGY 12
The foundations of Christian political theology 12
Aquinas and the law of the Summa 14
Law, politics and the Christian community 16
Hooker, the English constitution and the godly commonwealth 19
NATURAL LAW REVISITED 22
Law and morality: Hart and Fuller 22
Law and morality again: Hart and Devlin 24
The return to classicism 27
2 The Critique of Modernity 31
THE MORAL SELF 31
Enlightenment 31
The Critique of Reason 33
Politics and judgment 35
The Metaphysics of Morals 37
NEO-KANTIANISM 40
Pluralism and formalism 40
Relativism 42
Constructive rationality 44
THE EMPIRE OF INTEGRITY AND THE MORAL DOMINION 47
Rights in an interpretive community 47
The empire of integrity 49
Moral readings 51
3 The Politics of Community 55
COMMUNITARIANISM 55
Aristotle and the idea of the political community 55
Classicism revisited 57
Communitarianism and democracy 59
RADICALISM AND DEMOCRACY 63
Towards an inclusive society 63
Politics as artefact 67
THE POLITICS OF SOLIDARITY 69
Institutional democracy in a post-metaphysical world 69
ix