Legal analysis as institutional imagination

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Legal analysis as institutional imagination
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.
The complete text of Law in Modern
Society: Towards a Criticism of Social
Theory
"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."
To order this book go to the "my books" section
of this website.
Law in Modern Society (the complete text)
- Download pdf
The complete text of The Critical Legal
Studies Movement
In the United States my work has often been
associated with a tendency in legal thought called
"Critical Legal Studies" even though legal theory
 
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
approah 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 sacrified this vision to the
humanization of the inevitable.
To order this book go to the "my books"
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.
section of this website.
The Critical Legal Studies Movement (the
complete text) - Download pdf
The complete text of What Should Legal
Analysis Become?
"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."
To order this book go to the "my books"
section of this website.
What Should Legal Analysis Become? (the
complete text) - Download pdf