Three Ways of Thinking “Critically” about the Law

John P. McCormick

American Political Science Review, 1999, vol. 93, issue 2, 413-428

Abstract: Radical criticisms of liberalism's method of legal adjudication focus on its excessive formalism, its tendency to foster indeterminacy, and its naive maintenance of the separation of political from legal concerns. I examine these arguments as they appear in the work of Carl Schmitt, on the Right, and the Critical Legal Studies (CLS) movement, on the Left. Jürgen Habermas has recently attempted to refute the positions of these most scalding twentieth-century critics of liberal adjudication. I argue that by so extensively engaging these theorists, and in fact liberalism itself, on their own grounds, Habermas has abandoned some of the distinctive strengths of what he previously practiced as a critical social theory in his new reflexive or discourse theory of law.

Date: 1999
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