Exam Type: No Exam; Paper in lieu of examination
This seminar addresses central themes of legal and social theory. It takes as its focus the relation of law and legal thought to the formative institutional arrangements and ideological assumptions of society: its structure. The seminar can serve as an introduction to jurisprudence. However, it is not a survey of contemporary schools of jurisprudence; it seeks to offer a sustained exploration of a fundamental question.
No issue is more important to either legal or social theory. Law has been defined as the institutional form of the life of a people: its subject matter are the institutions and practices of society, viewed in relation to the interests and ideals that are supposed to justify them and to give them meaning. This subject matter is also the concern of politics, which upholds or transforms social assumptions and arrangements.
Today, however, we lack a way of thinking about the institutional and ideological structure of society, expressed in law: what it is, how it is made, how we can change it, and what it should become. Legal thought has been part of this evasion of structural insight and ambition.
In this seminar, we will deal with this concern in many of its expressions. Each participant in the seminar will work with the instructor to develop a writing project, and each will discuss that project with the class during the semester.
Among the problems that we may discuss are the following:
- The nature, consequence, limits and alternative futures of the now standard practice of legal analysis, which represents law in the language of impersonal policy and principle.
- The relation of this analytic and argumentative practice to the shape of political-economic debate in the United States and other contemporary societies. What a jurisprudence useful to the overcoming of neoliberalism and of institutionally conservative social democracy would look like.
- The uses of a revised practice of legal analysis in the development of institutional and ideological alternatives for these societies. Legal thought as institutional imagination, and its relation to legal thought as an instrument for adjudicating disputes about rights and their violation.
- The existing and possible ways in which lawyers, jurists, courts, the legislative and executive branches, and the citizenry can relate to one another, and create such alternatives.
- What legal history and comparative law can teach us about the evasion of structural insight and the achievement of structural change.
- The relation of this agenda in jurisprudence to major developments and possibilities in economic, political, and social theory.