Duncan Kennedy

Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences.

While Dworkin is taken to be a champion of a theory of rights, he is also associated with a certain theory of interpretation which holds that even in hard cases judges have limited discretion and a right answer to every legal question we might reasonably encounter. Kennedy, in contrast, seems to disagree with Dworkin in every conceivable respect such as the nature of law and legal reasoning, the role of right, the relation of law to its outsides (politics/ideology), thus questioning the objectivity and neutrality of legal reasoning, and he seems to be advocating what could be termed as a “radical indeterminacy” thesis.

The paper attempts reading Dworkin and Kennedy alongside each other, rather than in opposition, and so it deploys two interrelated strategies to establish such frame. One is concerned softening what appear to be rigid opposition through scrutinizing their writings, whereas the other takes stock of the common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. This double strategy reveals the arguments that are attributed to them and which they themselves deny they are making. To that end, the paper unveils an unacknowledged shift toward phenomenology in legal theory that took place in the last few decades.

Theme and Purpose: The centrality of law for the study of political economy was widely recognized at the time of the emergence of the political economy discipline in the 18th century as well as throughout the 19th century. From the outset law was considered an essential component of political economy studies because social phenomena such as capital, labor and power gain their form and basic characteristics from their status as legal institutions. Since then the economic discipline has however increasingly detached itself from neighboring disciplines leaving political economy to economic sociology and political science at the same time as these disciplines increasingly has underplayed the centrality of law in relation to their assessment of political economy institutions. On this background, the conference aims in general terms to reinvigorate the focus on law and reassessing the role of law in political economy contexts. More specifically it aims to increase our theoretical understanding of the function law fulfills between economy and politics and to historically assess the evolution of law and legal thinking in relation to the issue of how law contributes to the stabilization of economic and political processes at the local, national and transnational level of world society.

This paper is a contribution to a special issue honoring Duncan Kennedy. Taking the title ("Sexual Abuse, Sexy Dressing and the Eroticization of Domination") of Duncan Kennedy’s 1992 essay in the New England Law Review (which then evolved into the book "Sexy Dressing etc.; HUP 1995) as an invitation to think about political form, I want to draw on the ‘style’ of gender and legal theory that Kennedy advances. To this end, I don’t engage with the specific arguments advanced in Sexy Dressing but read it as an essay performing a form of political intervention that may be best understood by unveiling the elements of that form. In an effort to highlight the work of different elements, I describe them through the following nomenclature: the Sacred, the Profane, Erotics, Conflict, Voodoo and Risk. These function as shorthand code for the form of political engagement that Sexy Dressing manifests—although, significantly, not as a manifesto.

Abstract:
The Critical Legal Studies criticizes modern liberal law and particularly opposes its liberal legalism. Liberal Legalism concerns with mystification of liberal ideology by defending the law – morality or law – politics dichotomy. In this regard, Critical Legal Studies suggests three core theses; these theories not only oppose the formalist character of law, they also reject the idea that law is determinate and autonomous. The main subject of this study is the indeterminacy thesis of Critical Legal Studies. While attempting to explain the indeterminacy thesis of Critical Legal Studies, this study has also assessed the mainstream indeterminacy theories of the modern liberal law in the context of systemic and epistemic indeterminacy. In this regard, firstly the philosophical, political and ideological background of Critical Legal Studies has been examined. Thus, it has attempted to draw up the basis for the general outline of ideological frameworks for the emergence of Critical Legal Studies. This is followed by a brief discussion of the core theories of Critical Legal Studies. Subsequently, as the most influential factors for the formation of the indeterminacy thesis of Critical Legal Studies, American Legal Realism and Postmodernism have been analysed. In the last section, the opposing views of the mainstream modern law and Critical Legal Studies regarding the indeterminacy thesis have been examined. In this section, alongside Critical Legal Studies, American Legal Realists’, H.L.A Hart’s and Dworkin’s views on indeterminacy has been examined for the purpose of understanding how Critical Legal Studies has been influenced. Moreover, this section has also dealt with the criticisms of the indeterminacy of Critical Legal Studies. Finally, as one of the most important members of the Critical Legal Studies, the famous work Defending the Indeterminacy Thesis of Mark Tushnet will be analysed as the basis of the indeterminacy theory of the Critical Legal Studies. Keywords: Critical Legal Studies, Indeterminacy Thesis, Liberal Legalism, Liberal Mystification, Postmodernism, American Legal Realism, Systemic Indeterminacy, Epistemic Indeterminacy, Anti-Formalism.

ÖZ:
Eleştirel Hukuk Çalışmaları modern liberal hukuku eleştirir ve özellikle onun liberal legalizm anlayışına karşı çıkar. Liberal legalizm hukuk – ahlak ya da hukuk – politika ayrımını savunarak liberal ideolojiyi mistifiye ederek meşrulaştırmak ile ilgilidir. Bu bağlamda Eleştirel Hukuk Çalışmaları üç temel tez önerir; bu tezler hukukun formalist karakterine karşı çıkmakla birlikte, aynı zamanda hukukun belirli ve otonom olduğu düşüncesini de reddeder. Bu çalışmanın esas konusu Eleştirel Hukuk Çalışmaları’nın belirsizlik tezidir. Bu çalışmada Eleştirel Hukuk Çalışmaları’nın belirsizlik tezi açıklanmaya çalışılırken, hem Eleştirel Hukuk Çalışmaları’nın hem de modern liberal hukukun ana akım belirsizlik tezleri sistemik ve epistemik belirsizlik çerçevesinde değerlendirmeye de tabi tutulmuştur. Bu bağlamda ilk önce Eleştirel Hukuk Çalışmaları’nın felsefik, siyasi ve ideolojik arka planı incelenmiş ve böylece Eleştirel Hukuk Çalışmaları’nın ortaya çıkmasına zemin hazırlayan ideolojik görüşlerin genel çerçevesi çizilmeye çalışılmıştır. Sonrasında ise, Eleştirel Hukuk Çalışmaları’nın temel tezlerine kısaca değinilmiştir. Devamında, Eleştirel Hukuk Çalışmaları’nın belirsizlik tezinin oluşmasına en çok etki yapan akımlar olmaları nedenyiyle Amerikan Hukuki Realizmi ve Postmodernizm incelenmiştir. Son kısımda anaakım modern hukukun ve Eleştirel Hukuk Çalışmaları’nın belirsizlik teziyle ilgili karşıt görüşleri incelenmiştir. Bu bölümde, Eleştirel Hukuk Çalışmaları’nın yanında, Amerikan Hukuki Realistlerinin, H.L.A. Hart’ın ve Dworkin’in belirsizlikle ilgili görüşleri, Eleştirel Hukuk Çalışmaları’nin etkilendiği görüşlerin ortaya konulabilmesi açısından incelenmiştir. Ayrıca, yine bu kısımda, Eleştirel Hukuk Çalışmaları’nın belirsizlik tezine yapılan eleştirilere de değinilmiştir. Son olarak da, Eleştirel Hukuk Çalışmaları’nın belirsizlik tezinin esası Eleştirel Hukuk Çalışmaları’nın en önemli mensuplarından biri olan özellikle Mark Tushnet’in Defending the Indeterminacy Thesis adlı ünlü makalesiyle incelenmiştir. Anahtar kelimeler: Eleştirel Hukuk Çalışmaları, Belirsizlik Tezi, Liberal Legalizm, Liberal Mistifikasyon, Postmodernizm, Amerikan Hukuki Realizmi, Sistemik Belirsizlik, Epistemik Belirsizlik, Anti-Formalizm.

In a 2006 article, Duncan Kennedy identifies politics as the central dilemma of contemporary legal thought, but affirms that law is non-reducible to politics, which could be read as a partial retraction from the known coda “law is politics.” This article suggests an interpretation of his refusal to conflate law and politics not in terms of disavowal, or a way of distancing politics from law, but as an attempt to carve out a space from where to think of the relational aspect between law and politics. This becomes necessary due to a current phenomenon which Pierre Schlag calls “dedifferentiation,” where no distinction – and hence no relation – seems to be possible between law and other spheres of life. Opposing that conclusion, this article contends that engendering relations allows us to keep the terms connected in relative motion. The article then moves to describe four distinct modes of framing the relation between law and politics, which gives rise to very different disciplinary projects: law as politics, dating back to the legal realist movement; law as political science, which finds its current expression in empirical and quantitative research; law as political philosophy, generated by a renewed interest in “the political”; and law as political contingent, growing out of a similar interest but challenging the boundary-setting ambitions of philosophy. While the latter has not yet been adequately translated into law, I suggest as an alternative the work of Jacques Rancière, which declines to grant an aura of invincible ubiquity to any totalizing description, including neoliberalism’s attempt to present itself as a world system.

In his manifesto, Duncan Kennedy aptly identified hierarchies within legal scholarship and the legal profession, but his conclusion--hierarchies in law are wrong and must be resisted--is misplaced. Kennedy’s Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, claims law schools breed a hierarchical system, where rank plays an important part in how law schools relate to each other; how faculty members relate to each other and to students; and how students relate to other students. This system trains students to accept and prepare for their place within the hierarchy of the legal profession. According to Kennedy, such training teaches students the necessity of embracing the ideas and opinions of those above their status in the hierarchy in order to succeed. To Kennedy and others, this is a recognizable danger with the potential to perpetuate injustice. While Kennedy’s observation of a hierarchical system’s potential to breed injustice is correct, his conclusion is not inevitable. Instead of focusing on the supposedly evil nature of the hierarchical system, Kennedy might have acknowledged the influence that hierarchies must have in training and supporting lawyers who do seek justice. A solution to injustice is not resisting hierarchies, as Kennedy suggests; rather, a better solution is to set hierarchies in place that promote justice, to which lawyers can be subordinate.

Over the past decades, the idea that national sovereignty and the authority of the state have been increasingly challenged or even substantially eroded has been a dominant one. Economic globalization advancing a neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use a term John Ruggie coined. The concerns have also helped nationalistic movements to gain power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue, we will show that the retreat-of-the-state thesis as well as the return-of-the-state thesis shares the same shortcomings. They conflate state and authority. As a consequence, both theses underestimate important transformations of authority that have taken place since the end of the “short 20TH century,” to use Eric Hobsbawm's periodization.
With this special issue, we seek to contribute to a more nuanced analysis of the transformation of authority. The issue is the outcome of a conference that took place at the Copenhagen Business School in 2015, hosted by the research project ‘Institutional Transformation in European Political Economy: A Socio-Legal Approach’ and funded by the European Research Council.

Over the past decades, the perception has become dominate according to which national sovereignty and the authority of the state has been increasingly challenged or even substantially eroded. Economic globalization advancing a structural liberalist, i.e. neo-liberal dis-embedding of the economy is seen as the major reason for this erosion. Concerns have increased about the negative consequences for the social fabric of societies, deprived of the strong shock absorption capacity that the welfare states had established in the time of the embedded liberalism to use a term John Ruggie coined. The concerns have also helped nationalistic movements to gain in power in many high-income countries, not at least in the United States, calling for putting their economy first. Accordingly, a number of commentators have announced a return of the nation state. In this special issue we will show that the retreat-of-the state thesis currently so dominant in public discourse overlooks important aspects of (legal) authority and its transformations since it conflates state and authority. This has major implications for not only the retreat-of-the-state thesis but also for the return-of-the-state thesis, as recently emerged. As reconstructed in the scene-setting follow-up piece to this brief introduction both theses underestimate important transformations of authority that have taken place.

The United States is in a time of “unlaw” that is both a point in circular time, the time of eternal return, and a point never before reached. This “unlaw” infuses both the practical, applied, and experiential world of politics. Additionally, this era of “unlaw” also incorporates the intellectual world of philosophy and theology as well as political theory.

In this state of non-law, the United States incarcerates a higher percentage of people than any other developed nation. The United States claims to value money so much that it is speech, and thus free under the First Amendment.  This results in blocking election reform in an admittedly “broken” electoral system. The United States stock market fluctuates wildly and its citizens know there is no new world order on the horizon. The “war” on terror is bankrupting the United States. The United States is not doing well by anyone’s standards. However, “unlaw” is necessary to bind us together and open our eyes to these contradictions that the law creates.

A central assumption in much contemporary scholarship is that a central shift has taken place over the course of the last four decades: a shift from a world largely centered on public authority to a world that is increasingly dominated by private authority. The central expression of this shift is seen to be a concurring move from public to private law and thus from legislation to contract as the central legal instrument structuring economic as well as other social processes. While developments in this direction can certainly be observed, this article provides a more nuanced perspective. Outlining a long-term historical perspective, this article reconstructs the manifold and volatile dynamic between institutionalized forms of public and private authority. It does soon the basis of the argument that, in the course of this evolutionary process, the very function and meaning of both public and private authority has been fundamentally altered. This alteration implies the transformation of both dimensions into functionally limited and more specific phenomena. With this background, it becomes possible to argue that societal evolution is characterized by a dual expansion of both public and private forms of authority. The starting point is an understanding of authority as condensed power. Asymmetric relations implying either direct or indirect forms of domination are observable throughout society and are as such an intrinsic element of all social relations and processes. Authority is, however, based on a particular institutionalization of power, typically delineated and condensed with the help of legal instruments. Under radical modern conditions, law becomes constitutive for authority to the extent that one might argue that no form of authority exists outside its legal form. With this background, the article argues that the pre-1945 world at the local, national, and transnational level of world society was characterized by a relative dominance of private forms of authority. The process leading to state-based modern public law gaining not only a formal but also a factual capacity to structure societal processes was a century-long process: a process which implied an epic struggle aimed at undermining and eradicating alternative centers of public and private authority in society. It was, however, a first in the mid-twentieth century that an outright breakthrough of this claim and aspiration could be observed. The implied a respecification of public and private authority that remains central to our understanding of authority to this day.

'At a time when the performative demands of the neo-liberal university threaten to marginalize liberal and post-liberal traditions of critical enquiry, it is important to be reminded that a quality legal education can be both richly sceptical and imaginative. For those interested in deepening their students' empirical, normative and affective understanding of legal phenomena, and of their own place in the legal world, this collection of essays offers both a multi-faceted account of educational praxis and some persuasive examples of how we can educate better.' – Julian Webb, The University of Melbourne, Australia 'This is a very varied, interesting and stimulating collection of essays. It deserves a wide readership, as there are topics of interest to all law teachers.' – Fiona Cownie, Keele University, UK 'In a world dominated by technology, technique, and bureaucracy this collection of essays represents a most welcome and intelligent effort to render legal education, and law itself, more fully human, coherent, and effective, from the point of view both of the individual human being and the larger society.' – James Boyd White, The University of Michigan, US The nature and purpose of legal education has become a topic of intense debate in recent years. This timely book calls for a critical re-evaluation of university legal education, with the particular aim of strengthening its academic nature. The contributors emphasize lecturers' responsibility to challenge the assumptions students have about law, and the importance of putting law in a theoretical and social context that allows for critical reflection and sceptical detachment. In addition, the book reports upon teaching experiences and innovations, offering tools for teachers to strengthen the academic nature of legal education, and concludes with concrete proposals for change. Students and scholars engaged in the debate regarding the re-evaluation of academic legal education will find this book invaluable to their work. It will also be of interest to practitioners, such as educational experts and administrators looking to understand the role of law schools in creating responsible citizens. Consisting of scholarly monographs, Research Handbooks, companions and dictionaries as well as research reviews and journals. Please email sales@e-elgar.co.uk (UK & RoW) or elgarsales@e-elgar.com (N/S America) for more information. Our eBooks are available for individuals through Google ebookstore and eBooks.com. Ask your librarian to request a free trial.

La finalidad de esta investigación es identificar la intencionalidad formativa que subyace en sus procesos formativos de los docentes de derecho en Colombia. Para ello, se analizó la producción escrita que sobre el ejercicio formativo han generado los docentes en Colombia entre 2009 y 2019.

This essay was an early draft of one part of a study of the continuing relevance of the classical republican tradition to Anglo-American constitutional jurisprudence. The book itself appeared as:
Andrew Fraser, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (Toronto: University of Toronto Press, 1990).

In the late 1970s, the Critical Legal Studies movement spearheaded a radical attack on legal formalism. Radical lawyers were urged by prominent legal academics at Harvard Law School and other prominent universities to enhance society's capacity for self-revision. No area of social life, it was said, should be allowed to immunize itself from challenge and revision in the course of ordinary social activity.

The manifesto of the movement authored by Roberto Mangabeira Unger amounted to a modernist revival of the anti-institutional rhetoric which has been a hallmark of American religious and political radicalism since the Great Awakening of the 18th century,

Critical legal scholars allied themselves uncritically with the evangelical crusade waged by cultural modernists against the dead hand of tradition (legal or otherwise). As a consequence, they have been blind to, or breezily dismissive of the republican traditions in American legal thought offering possibly the only antidote to the inexorable process of institutional breakdown now associated with the experience of modernity.

William Simon's notion of non-professional advocacy is presented as one striking example of a cultural modernist assault on the established republican understanding of professional legal ethics.

El presente artículo argumenta que la Corte Suprema
de Justicia incursionó en el campo político e incrementó
su autonomía y poder simbólico por la vía
de la judicialización de la clase política institucionalizada,
vinculada con grupos paramilitares en un
contexto gobernado por el poder presidencial y sus
mayorías en el congreso. Para ilustrar esta hipótesis,
este trabajo se divide en tres partes. La primera se
encarga de la articulación entre Pierre Bourdieu y
Duncan Kennedy como perspectiva de análisis de
las decisiones judiciales. La segunda, de describir el
fenómeno de la “parapolítica”, las discusiones sobre
sus alcances y complejidad. La tercera, se dedica al
examen de las decisiones judiciales en las que la
Corte define la monopolización de la investigación
y juzgamiento de aforados constitucionales, las
reglas de dichos procedimientos y su propia competencia./This article argues that the Supreme Court of Justice
entered the political field and at the same time
it increased autonomy and gain symbolic power
through a judicial implementation by the institutionalized
political class linked to (mercenaries)
armed forces and by using the presidential power
and having majority in Congress. To illustrate this
hypothesis the research is divided into three parts.
The first is details the talks between Pierre Bourdieu
and Duncan Kennedy as a perspective of analysis
of judicial decisions. The second is to describe
the capacity and complexity phenomenon called
“parapolitica”. The third is devoted to examining
judicial decisions in which the Court defines the
monopolization of the investigation and adjudication
of constitutional measures, the rules of such
procedures and jurisdiction.

Présentation sur les théories socio-juridique de Duncan Kennedy et de ses thèses sur la reproduction des hiérarchies sociales à travers la formation juridique; présentation d'ouverture pour une séance de cercle de lecture sur l'ouvrage de Duncan Kennedy «L'enseignement du droit et la reproduction des hiérarchies»; suivi d'une présentation de Georges Lebel sur l'histoire du département de sciences juridiques de l'UQAM


*Notes de la communication disponibles sur demande