Over the past twenty-five years, overtly ideological challenges to conventional forms of legal theory and legal scholarship have enlivened the atmosphere of many law schools, particularly in the United States, where, for some scholars, theoretical subscription or orientation has become a matter of passionate commitment. Proponents of liberal views on the importance of rights, on the role of courts as guardians of fundamental values, and on law’s potential as a vehicle of incremental social progress have come under attack for both their flawed conception of human nature and their misguided efforts to promote individualistic principles at the expense of other...

From the perspective of many theorists who have spent the past quarter-century criticizing the weaknesses and failures of liberal conceptions of justice and law, the resurgence in the popularity of political and economic liberalism after the events in central and eastern Europe since 1989 must seem strangely ironic. The demise of socialist regimes in these regions has been accompanied by what some writers have hailed as a ‘liberal revolution,’ with the adoption in many of these countries of a market economy, protection of civil liberties, and democratic styles of governance.¹ Attempts have been made to revive liberalism in other contexts...

In Chapter 2 we became familiar with those normative ideas which, according to critical legal writers, have been insinuated into and dominate legal doctrine. From this critical perspective, liberalism exerts a tenacious grip on modern thinking about the concept of law; legal institutions; and the respective roles of citizens, lawyers, judges, and legislators. Law is supposed to be shot through with liberal presuppositions and values which pervade the field to such an extent that a participant in the legal process may not even detect their presence or realize their power. These normative assumptions have been the focal point of critical...

The great preponderance of critical legal writing published since the mid-1970s has not been unduly occupied with attacking legal liberalism on the elevated plane of political or philosophical abstractions. Critical legal authors have tended to concentrate on a task of a different order, which has seen them sift through the mass of governing principles to be found in specific branches of the law. Roughly, the pattern of analysis is that established doctrine is identified, its content is isolated and examined for implicit political or economic assumptions, and finally the doctrine is revealed as ideologically tilted in favour of what Mark...

This penultimate chapter is about two paradoxes found in the radical critique of legal institutions and legal learning. The first, the paradox of engagement, takes the form of critical legal authors calling for an appreciation of law as deeply political while refusing on principle to disclose in detail their substantive political views. The second paradox, the paradox of postponement, arises from the view that, although law is entirely a matter of political choice, the critic has no business commending the values that ought to shape a legal regime. Critical legal writers have been committed to what has been called, in...

In setting down my thoughts in this book, I have girded myself in anticipation of the different types of responses it will arouse. First among these will be complaints about the topicality of the subject matter. Why choose to write about the formative period of a movement that, according to more than a few of my academic colleagues, is played out and has been virtually demolished?¹ What a quaint project. But is the task of assessing the contributions of early critical legal writers to central jurisprudential debates really no more interesting or useful than flogging a dead horse? Does the...