Abstract
In addition to approaching the relations between law and politics as between two autonomous phenomena, contemporary legal thinking presents a second major ideal-typical model of considering how the legal world interacts with the political one: the embedded model. This chapter explores certain legal theories that can be described as embracing such an ideal-typical model. The placing of these legal theories under the embedded model is based on the same methodology as used in Chapter Two. Consequently, the focus will be on the positions of these theories as to the following issues: how the law interacts to politics, how law-making relates to the political order and to what extent the legal discipline makes use of political material.
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References
See in particular the debate that developed based on Mark Granovetter’s article, Economic Action and Social Structure: The Problem of Embeddedness, 91(3) Am. J. Soc. 485–487 (1985).
See id. at 487. Granovetter’s more specific claim, that the social, political and cultural contexts determine the concept of self-interest, is not considered in this work.
See, e.g., Posner, The Problems of Jurisprudence 153–154 (1990); and Maccormick, Legal Reasoning and Legal Theory, supra at 62.
For the Law and Society movement, see Lawrence M. Friedman, The Limits of Law: A Critique and a Proposal 8, 13 (1986). For a general description of Public Choice Theory, see Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 1–11, 55–62 (1999). The location in the embedded model of the school of Legal Process is due particularly to both their idea of the “soundness” of the legal process and their embracing many of Fuller’s positions. See Duxbury, Patterns of American Jurisprudence, supra at 251–262; Bix, Jurisprudence, supra at 84–85; and Freeman, Lloyd’s Introduction to Jurisprudence, supra at 820 (considering the Legal Process movement as a bridge between legal realism and Dworkin’s legal theory). But see William N. Eskridge & Philip P. Frickey, The Making of the Legal Process, 107 Harv. L. Rev. 2045 (1994) (defining the Legal Process as a “procedurebased positivism”). For the Marxist approach, see Karl Marx, Preface to A Critique of Political Economy, in Karl Marx: Selected Writings 423–427 (2nd ed., D. McLellan ed., 2001) [reprint 1859]. For Dworkin, see Dworkin, Justice in Robes 13–14 (2006); and George C. Christie, Dworkin’s “Empire”, 1987 Duke L. J. 183–184 (1987).
See, e.g., Fuller, Human Purpose and Natural Law, 3 Nat. L. F. 73–74 (1958); and Fuller, A Rejoinder to Professor Nagel, 3 Nat. L. F. 95–99 (1958). Fuller points out in these articles the general impossibility of clearly separating the “either means or ends” functions two phenomena (as the legal and the political ones) play in their relations.
In recent decades, a debate has grown around the differences between the contemporary natural law theory (as derived by Thomas Aquinas and leading to Finnis, and Fuller’s theories) and the natural rights theory (originating in Locke and whose main representative today is John Rawls). See Bix, Natural Law Theory: The Modern Tradition, in The Oxford Handbook of Jurisprudence and Legal Philosophy 69–70 (J. Coleman & S. Shapiro eds., 2002). See also Randy E. Barnett, Foreword: Unenumerated Constitutional Rights and the Rule of Law, 14 Harv. J. L. & Pub. Pol’y 615 (1991); and Michael P. Zuckert, Do Natural Rights Derive From Natural Law? 20 Harv. J. L. & Pub. Pol’y 695–697 (1997). In this work, contemporary natural rights theory however is considered as encompassed within contemporary natural law theory.
See Freeman, Lloyd’s Introduction to Jurisprudence, supra at 132.
See Bix, Natural Law Theory, in A Companion to Philosophy of Law and Legal Theory 223–240 (D. Patterson ed., 1996); and Philip E. Soper, Some Natural Confusions About Natural Law, 90 Mich. L. Rev. 2394–2403 (1992).
As for the legal positivists, the law for Finnis is also “one of the paradigms of political authority.” Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, 1 Notre Dame J. L. Ethics & Pub. Pol’y 133 (1984). See, for the change of focus by the natural law theories, Bix, Jurisprudence, supra at 71–72. See also Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 204–205 (R. P. George ed., 1996).
This attention by contemporary natural law scholars to the specificity of legal concepts and categories, has led, for example, MacCormick to state in the conclusions of his review of Finnis’ book “Natural Law and Natural Rights”: “In this way Finnis enables himself to draw into his natural law framework much in modern analytical jurisprudence which he sees as wholly compatible with it.” MacCormick, Natural Law Reconsidered, 1 Oxford J. L. Stud. 108 (1981).
See Finnis, Natural Law and Natural Rights, supra at 276–278; and Finnis, Law as Co-ordination, 2 RATIO JURIS 103 (1989).
Finnis, Natural Law and Natural Rights, supra at 148.
Id. at 156.
Id. at 276 [italics added].
See id. at 147–150, 267. See also Finnis, On the Incoherence of Legal Positivism, 75 NOTRE DAME L. REV. 1610–1611 (2000).
Finnis, On ‘Positivism’ and ‘Legal Rational Authority’, 5 Oxford J. Legal Stud. 81 (1985). According to Bix, residing within the same authoritative and obligatory nature of law as described by Finnis is its political character, namely the choice of “alternative social conditions.” Bix, On the Dividing Line between Natural Law Theory and Legal Positivism, 75 Notre Dame L. Rev. 1622 (2000).
Finnis, Natural Law and Natural Rights, supra at 148–149. Finnis however stresses the possibility of the co-existence of several global coordinating tools for the same community of persons (for example, law and morals).
Id. at 148. As pointed out by MacCormick, the embedding by Finnis of the legal community into the political community is a conditio sine qua non also for the survival of the very political system. See MacCormick, Natural Law Reconsidered, supra at 105.
See Finnis, Natural Law and Natural Rights, supra at 148.
Allan C. Hutchinson & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 206 (1984). See also Freeman, Lloyd’s Introduction to Jurisprudence, supra at 1041.
Unger, The Critical Legal Studies Movement, supra at 582. However, as shown below, this is simply a tendency. It is therefore possible to find within the CLS movement some “conceptual” definition of what is law (i.e. a vague and undetermined linguistic phenomenon).
See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
See Unger, The Critical Legal Studies Movement, supra at 578. See also Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, 15 Phil. & Pub. Aff. 222 (1986). The adjective actually used by CLS to define the inherent disposition of the law as to reflecting the changes and conflicts occurring inside the political world is the “malleability” of fundamental legal concepts. See Note, ‘Round and ‘Round the Bramble Bush: from Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1679 (1982).
Bix, Jurisprudence, supra at 221. See, e.g., Janet Rifkin, Toward a Theory of Law and Patriarchy, 3 Harv. Women’s L. J. 83–88 (1980); and Harlon L. Dalton, The Clouded Prism: Minority Critique of the Critical Legal Studies Movement, in Critical Race Theory: The Key Writings that Formed the Movement 82 (K. Crenshaw et al. eds., 1995).
See David M. Trubek, Where the action is: Critical Legal Studies and empiricism, 36 Stan. L. Rev. 578 (1984). In contrast to natural law theory, CLS scholars however do not give an absolute preference to any one political value as viewed as “better.” Their preferences are always relative to the community and political reality in which the law has to operate. Cf. Altman, Legal Realism, Critical Legal Studies, and Dworkin, supra at 217–218 (a comparison of the idea of what law is in CLS and in Dworkin).
In particular, the decisions of supposedly “purely” legal actors as judges “are no more neutral than the decisions of a legislature or an executive. Political choices are equally involved.” Freeman, Lloyd’s Introduction to Jurisprudence, supra at 1047.
See, e.g., Unger, The Critical Legal Studies Movement, supra at 570. Finnis criticizes as ambiguous this depiction by CLS of legal concepts and categories as empty bottles. In particular, Finnis continues, CLS does not resolve the question from where in the indeterminacy of the legal conceptual apparatus it derives its complete uselessness to legal reasoning and the law-making; or whether the emptiness of the legal concepts indicates their bridge function to a content external to the logic and rationality of the legal system. See Finnis, On ‘The Critical Legal Studies Movement‘, 30 Am. J. Juris. 23–24 (1985).
See Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 211–212 (1979).
See Unger, The Critical Legal Studies Movement, supra at 568. See also Cotterrell, The Politics of Jurisprudence, supra at 203–204.
See Gordon, Critical Legal Histories, supra at 101; and Note, ‘Round and ‘Round the Bramble Bush, supra at 1678. See, e.g., Peter Gabel & Jay Feinman, Contract Law as Ideology, in The Politics of Law, supra at 497–498, 504–509.
Cotterrell, The Politics of Jurisprudence, supra at 205.
See Denis J. Brion, Norms and Values in Law and Economics, in Encyclopedia of Law and Economics 1042–1048 (B. Bouckaert & G. De Geest eds., 2000), adopting the classical distinction between a “descriptive” and a “prescriptive” Law and Economics. See also Gilles Paquet & Pierre M. Pestieau, Economics and Law, in THE PHILOSOPHY OF LAW. AN ENCYCLOPEDIA, supra at 246–248, who distinguish three main streams in the scholarship of the school of Law and Economics: the Chicago School, the anthropological approach, and the social learning approach.
See, e.g., Posner, Law and Economics Is Moral. 24 Val. U. L. R. 166–172 (1990), claiming the possibility for economic values to deliver solutions to moral issues which are out of reach of the moral discourse. See also Posner, Utilitarianism, Economics and Legal Theory, 8 J. Legal Stud. 103 (1979), pointing out the intercrossing position (i.e. in the social, political and legal environments) occupied by the “wealth maximization” value.
Posner, The Law and Economics Movement, 77 Am. Econ. Rev. 1 (1987). See also POSNER, THE PROBLEMS OF JURISPRUDENCE, supra at 220–221.
See Posner, The Law and Economics Movement, supra at 2. Posner has repeatedly stated that his idea of the law actually is derived from the one expressed by Justice Oliver Wendell Holmes, i.e. the law as a type of prediction of how the power of the State will be deployed in particular circumstances. See Posner, The Problems of Jurisprudence, supra at 221–223.
See id. at 238: “Law [is]... a professional activity bounded and shaped by custom, tradition, community feeling, and so on” [italics added]. See also id. at 225–226.
“The law has no nature, no essence.” Id. at 226.
In his work, Posner speaks of a “weak sense of natural law” present in the idea of law as elaborated by Law and Economics. See id. at 228, 231–232. For Posner, it is possible to mix, in what is used as the idea of law, both legal positivistic and natural law instances because “the law seems best regarded as an activity of licensed professionals (judges and lawyers), cabined by vague but powerful notions of professional property rooted ultimately in social convenience or, equivalently, durable public opinion. Positive law and natural law materials are inputs into the activity we call law,” id. at 239.
See, for the argument within Law and Economics claiming the existence of some rights (in particular, the right to private property) as independent from their recognition by the lawmaker, Brion, Norms and Values in Law and Economics, supra at 1044–1047. For the important role played by the political morality in the idea of what law is as elaborated by the Law and Economics’ movement, see also Posner, The Problems of Jurisprudence, supra at 238.
Posner, The Economic Approach to Law, 53 Tex. L. Rev. 764 (1975).
Posner, The Problems of Jurisprudence, supra at 243.
According to Morton J. Horwitz, one of the major tasks of Law and Economics scholarship has been to present themselves as apolitical scholars, i.e. as true legal scientists. See Horwitz, Law and Economics: Science or Politics?, Hofstra L. Rev. 905, 909–910 (1980).
See, e.g., Isaac Ehrlich & Richard Posner, An Economic Analysis of Legal Rulemaking, III J. L. Studies 278 (1974). See also Paul H. Rubin, Why is Common Law Efficient? VI J. L. STUDIES 53–57 (1977). Compare the strong criticism as to Posner’s reduction of the formal characteristic of law from economics in Arthur A. Leff, Economic Analysis of Law: Some Realism about Nominalism, 60 VA. L. R. 469–477 (1974).
See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 182 (1987); and Posner, The Economics of Justice 4 (1983).
See Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8(3) Hofstra L. Rev. 495–497, 499–506 (1980).
This embeddedness of law into politics is emphasized in a debate between Dworkin, Posner and Calabresi as it appeared in the Hofstra Law Review. See generally Calabresi et al., Symposium: Efficiency as a Legal Concern, 8(3) Hofstra L. Rev. 485–770 (1980).
See Dworkin, Why Efficiency? A Response to Professors Calabresi and Posner, 8(3) Hofstra L. Rev. 563–590 (1980).
See id. at 564.
See id. at 572. In the direction of this tendency of objectifying as self-evident truths that actually are political or economic values is the article by Louis Kaplow & Steven Shavell, Why the Legal system is less efficient than the income tax in redistributing income, XXII J. L. Studies 667–681 (1994). In the introduction of their analysis, Kaplow and Shavell take for granted that efficiency (and not other values of religious, moral cultural nature) is the only “objective” criterion according to which to evaluate the different ways to redistribute incomes, e.g. to the poorest strata of a population, see id. at 667–669.
Dworkin, Why Efficiency? supra at 569. See also Dworkin, Is Wealth a Value?, 9 J. Legal Studies 200–201 (1980). Although coming from a different legal theoretical perspective, Coleman reaches the same conclusions as Dworkin. In particular, he criticizes the fact that, as a postulate, Law and Economics makes the value of wealth maximization overlapping with and somehow monopolizing the one of justice. See Coleman, The Normative Basis of Economic Analysis: A Critical Review of Richard Posner’s ‘The Economics of Justice’, 34 Stan. L. Rev. 1129–1131 (1982). See also Teubner, Altera Pars Audiatur: Law in the Collision of Discourses, in Law, Society and Economy: Centenary Essays for the London School of Economics and Political Science 1895–1995 150 (R. Rawlings ed., 1996). Teubner condemns Law and Economics for having simply eliminated in their explanation of what the law is the “moral-political monotheism” in favor of the “economic monotheism.”
See, e.g., Posner, The Problems of Jurisprudence, supra at 442: “Law and economics and critical legal studies resemble each other... in looking outside law for its springs and lifeblood.” See also Kennedy, Legal Education as Training for Hierarchy, in The Politics of Law: A Progressive Critique 46–48 (D. Kairys ed., 1982).
See Ward, Law, Philosophy and National Socialism, supra at 41–49.
For example, while the criterion of jurisdiction can be entirely derived and explained using concepts and categories found in the legal linguistic apparatus, the criterion of social welfare necessarily has to make reference (to a greater or lesser extent) to concepts and elements originating in the economy or in the social situation of a certain community. See Weber, Economy and Society, supra at 657; and Hart, the Concept of Law, supra at 94. As to the historical and theoretical limits of such a distinction, see, e.g., id. at 30; Weber, Economy and Society, supra at 653–654; and Elizabeth Mensch, The History of Mainstream Legal Thought, in The Politics of Law, supra at 38–39.
See Finnis, Natural Law and Natural Rights, supra at 282. See also Finnis, On ‘The Critical Legal Studies Movement’, supra at 35–38. In this, Finnis and Posner seem to be on the same path. The representatives of the Law and Economics movement also speak of legal reasoning (in particular that produced by the most powerful law-making actor, the judges) as a practical reasoning, that is the complex of “methods... [which] involves setting a goal... and choosing the means best suited to reaching it.” Posner, The Problems of Jurisprudence, supra at 71.
See Finnis, Natural Law and Natural Rights, supra at 86–89. See also Robert P. George, Human Flourishing as a Criterion of Morality: a Critique of Perry’s Naturalism, 16 Tul. L. Rev. 1462 (1989).
See Finnis, Natural Law and Natural Rights, supra at 100–126. See also Bix, Natural Law Theory: The Modern Tradition, supra at 85–89.
See Finnis, Natural Law and Natural Rights, supra at 288. Finnis also mentions among such legal principles estoppel, no aid to the abuse of rights, relative freedom to change existing patterns of legal relationships by agreement and no liability for unintentional injury without fault.
Id. at 286–287.
See Finnis, On ‘Positivism’ and ‘Legal Rational Authority’, supra at 88. See, e.g., Finnis, Public Reason, Abortion, and Cloning, 32 Val. U. L. R. 377–382 (1998). This is a concrete use of Finnis’ ideas of how to implement into a community a basic good (life) by choosing second-order principles (right to live and right to equality in dignity) through the respect of principles of practical reasonableness (having no arbitrary preferences among either values or persons).
As to the problem of choosing a second-order principle that, while implementing a basic good, violates another basic value, see George, Human Flourishing as a Criterion of Morality, supra at 1472–1473.
Finnis, On ‘Positivism’ and ‘Legal Rational Authority’, supra at 87–88.
See Finnis, On ‘The Critical Legal Studies Movement’, supra at 42.
See Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, supra at 135. It is important to stress the fact that the description given by Finnis of the basic goods to whose implementation the legal order should be directed, keeps a strict normative feature. The derivation of the goods then is done by Finnis looking to what is the best (Ought) for the community and not, for example, to the sociologically derived “average of basic goods” the various national legal systems try to implement (Is). See Finnis, On ‘Positivism’ and ‘Legal Rational Authority’, supra at 84.
See Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, supra at 133.
Id. at 136.
See Finnis, On ‘The Critical Legal Studies Movement’, supra at 38.
For Finnis, of course, as a natural law scholar, the same actions and choices of the stricto sensu political actors are, in their turn, limited by the presence and the very nature of morals. They are limited by the fact that the legislator should always answer the (moral) question “what laws should a ‘good’ legislator pass”? The political actors should then always consider that their use of the legal system is to be with the purpose of implementing within a community the basic goods as enumerated by Finnis. See Bix, On the Dividing Line between Natural Law Theory and Legal Positivism, supra at 1615.
See Gordon, Law and Ideology, in Freeman, Lloyd’s Introduction to Jurisprudence, supra at 1057 [reprint 1988].
Harris, Legal Philosophies 109 (2nd ed., 1997) [italics added].
See Unger, The Critical Legal Studies Movement, supra at 570. As a result, the legal system is affected by an endless “struggle between conceptual frameworks,” each representing a certain political value. id. at 633. See also Kennedy, The Structure of Blackstone’s Commentaries, supra at 211–221. Compare Louis Althusser, sur la Reproduction Ch. XI (1995) (representing of the neo-Marxist legal theory and its idea of a mono-ideological political character of the law-making).
Kairys, Law and Politics, 243 Geo. Wash. L. Rev. 245 (1984).
The distinction between the macro-and micro-level of influences of politics on the law must not be confused with the distinction, rejected by CLS, between “foundational politics” (the choice of a social type, e.g. socialism or democracy) and “ordinary politics” (the choices made during ordinary legislation within the framework established by the foundational politics, e.g. inside a democratic system, the choice of strict liability instead of culpa principles as the regulating mechanism of tort law for dangerous activities). While the distinction micro/macro concerns the lines connecting the law-making and political order, the foundational/ordinary politics dichotomy refers to the internal features of the political order, at least as defined in this work. See Unger, The Critical Legal Studies Movement, supra at 568.
It should be noted that for CLS, the choice made at this macro political level does not imply at all an automatic choice for certain legal categories and principles. This is because CLS strongly criticizes “the idea of types of social organization with a built-in legal structure.” See id. at 568 n.59.
See id. at 593–597.
See, e.g., Peter Gabel & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 N. Y. U. Rev. L. & Soc. Change 383–384 (1983); and Freeman, Lloyd’s Introduction to Jurisprudence, supra at 1049–1050.
Kairys, Law and Politics, supra at 245 [italics added].
For example, Posner claims the possibility of more or less excluding moral or stricto sensu political values from the grounds that the judicial law-making activities investing the constitutional provisions of freedom of speech and religion have been built upon. See Posner, The Law and Economics Movement, supra at 5–12.
Posner repeatedly promotes the adoption of a liberal democratic political order as the most suitable for his idea concerning the relationship between social and economic values. See Posner, Frontiers of Legal Theory, supra at 115.
See id. at 100–101.
One of the basic values the political order has to promote in a society, according to Posner, is the one of increasing the average incomes of a community and not, as sustained by economists such as Amartya Sen, the one of promoting an equality of incomes. For the reasons behind this choice, see id. at 110–115.
See Posner, The Problems of Jurisprudence, supra at 232–234.
See, e.g., Posner, Pragmatic Adjudication, 18 Cardozo L. Rev. 4–8 (1996). In this article Posner expressly rejects what he calls the “judicial positivist” approach, i.e. the one embraced by a “judge who... would begin and usually end with a consideration of cases, statutes, administrative regulations, and constitutional provisions,” id. at 4.
Brion, Norms and Values in Law and Economics, supra at 1042. See also, for a similar partition of Law and Economics into a positive and a normative type of approach, Francesco Parisi & Jonathan Klick, Functional Law and Economics: The Search for Value-Neutral Principles of Lawmaking, 79(2) Chi.-Kent L. Rev. 432–435 (2004).
“The invisible hand of economic reality is portrayed as guiding judicial development of common rules.” Cotterrell, The Politics of Jurisprudence, supra at 201.
See Posner, Frontiers of Legal Theory, supra at 153–154. One of the major sources of this inertia is the American Constitution, which is difficult to amend, with each change having to go through a very complicated legislative procedure. See id. at 158.
See id. at 159. For example, the settled distinction between the legal categories of absolute and relative rights typical of civil law countries has created some inertia in the adaptation of the legal system to the current economic and political realities, impeding the extension to the pure economic losses of the protection erga omnes guaranteed by absolute rights. See Mauro Bussani et al., Liability for Pure Financial Loss in Europe: An Economic Restatement, 51 Am. J. Comp. L. 125–127 (2003).
See Posner, Frontiers of Legal Theory, supra at 158. According to Posner, however, the presence of this built-in inertia does not seem to be so serious a problem for judges when they act as law-making actors.
See id. at 155.
See Posner, Pragmatic Adjudication, supra at 5.
See Posner, Frontiers of Legal Theory, supra at 163, 166 n.42.
Kairys, Law and Politics, supra at 247.
See, e.g., Andrei Y. Vyschinsky, The Fundamental Tasks of the Science of Soviet Socialist Law, in Soviet Legal Philosophy 317–321 (1951).
In order to underline this feature of the legal scholars of the embedded model, of engaging directly into socio-economic issues as part of their idea of legal discipline, Freeman states: “Finnis is a social theorist who wants to use law to improve society.” Freeman, Lloyd’s Introduction to Jurisprudence, supra at 138.
Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, supra at 115.
There is actually also a fourth level where the legal discipline has to mix with other disciplines. According to Finnis, the analysis of the “goodness” of a legal order should always include the evaluation (mostly of socio-political nature) of the impact the system produces on the surrounding political environment. See Finnis, Natural Law and Natural Rights, supra at 271.
Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, supra at 115 [italics added].
Id. at 116. Finnis has been recently labeled as a realist in the medieval sense (Michael Moore) or as a cognitivist (Jeffrey Goldsworthy) for this very assumption of the existence of an objective moral reality outside and detached from the processes of human investigation, of which the legal discipline is part. See Moore, Educating Oneself in Public. Critical Essays in Jurisprudence 342 (2000); and Jeffrey Goldsworthy, Fact and Value in the New Natural Law Theory, 41 Am. J. Juris. 22–25 (1996).
See Finnis, Natural Law and Natural Rights, supra at 265.
See id. at 3–13.
See, e.g., Finnis, Abortion and health care ethics, in Bioethics: An Anthology 13–20 (H. Kuhse & P. Singer eds., 1999).
See Bix, Jurisprudence, supra at 72–73.
Unger, Legal Analysis as Institutional Imagination, in Law, Society and Economy, supra at 179.
See Note, ‘Round and ‘Round the Bramble Bush, supra at 1686. A classical example of the suggestion of such dualistic dimensions by CLS to the legal discipline can be found in Kennedy’s article “Form and Substance in Private Law Adjudication.” He makes a combined use of traditional legal investigation, social theories, political theories and history, demonstrating how the legal discipline is affected by the political surroundings but, in their turn, legal studies do have an impact on that environment. See Kennedy, Form and Substance in Private Law Adjudication, supra at 1687.
See Unger, The Critical Legal Studies Movement, supra at 570.
Id. at 577. See also Note, ‘Round and ‘Round the Bramble Bush, supra at 1677–16
Id. at 1679. It should be noted that in contrast to American Legal Realism, CLS scholars usually have a skeptical attitude, however, towards empirical research produced by the social sciences. See Gordon, Critical Legal Histories, supra at 101–102. See also Cotterrell, Law’s Community, supra at 207, speaking of CLS’ “highly ambivalent attitude to social theory.” But see Note, ‘Round and ‘Round the Bramble Bush, supra at 1682.
CLS repeatedly stresses the necessary link between the legal discipline and a “radical political agenda.” See id. at 1677; and compare Unger, The Critical Legal Studies Movement, supra at 583, in which he states that the legal discipline can actually play an active role in the functioning of a legal order if it shares its theoretical underpinnings with (social and) political theories.
Terrence L. Moore, Critical Legal Studies and Anglo-American Jurisprudence, 1 U.S.A.F. Acad. J. Legal Stud. 4 (1990).
See id. at 14.
See Note, ‘Round and ‘Round the Bramble Bush, supra at 1689.
A classical example in this direction is the article founding the school of Law and Economics by Ronald H. Coase, The Problem of Social Cost, 3 J. L. & Econ. 41–44 (1960).
See Calabresi, The New Economic Analysis of Law: Scholarship, Sophistry, or Self-Indulgence? Maccabaean Lecture in Jurisprudence, Lxvii Proc. Brit. Acad. 86 (1982).
See Posner, Some Uses and Abuses of Economics in Law, 46 Un. Chi. L. Rev. 288–294 (1979); and Calabresi, The New Economic Analysis of Law, supra at 87–91. Compare James R. Hackney, Jr., Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory, 15 Law & Hist. Rev. 277, 307–322 (1997). Hackney claims that law and (‘neoclassical’) economics is characterized, in particular from the 60’s throughout the end of the century, for its “analytical turn,” see id. at 310, and for offering an approach to the legal issues both scientific in its methodology and political in its underpinnings and goals, see id. at 321.
Horwitz, Law and Economics: Science or Politics? supra at 912.
See, e.g., Guido Calabresi & Philip Bobbit, Tragic Choices 83–87 (1978). But see Posner, Economic Analysis of Law 27 (4th ed., 1992).
See Calabresi, An Exchange. About Law and Economics: A Letter to Ronald Dworkin, 8(3) Hofstra L. Rev. 559 (1980).
Posner, Legal Scholarship Today, supra at 1316–1317. See also Posner, Economic Analysis of Law, supra at 23. Moreover, in order to avoid the inertia of the legal order towards legal innovation, Posner even rejects the use of history inside the legal disciplines, as the method of reasoning employed by legal historians differs from that used by politicians. See Posner, Frontiers of Legal Theory, supra 154.
As consequence, “[t]he economics of law is a set of economic studies that build on a detailed knowledge of some area of law; whether the study is done by a ‘lawyer,’ an ‘economist,’ someone with both degrees, or a lawyer-economist team has little significance.” Posner, The Law and Economics Movement, supra at 4.
Finnis, Natural Law and Natural Rights, supra at 282.
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(2008). The Embedded Model. In: Law and Politics. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73926-5_4
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