Saturday, September 19, 2009

Critical Legal Nihilism?

I wanted to respond to Rob M's claims that the differences between realism and critical legal studies are small and that both express an essentially quietistic attitude toward the possibility of altering the legal system. For the record, sometimes "posts" will respond to one another. What starts out as a comment will sometimes become much more involved. When that happens, just post your comment separately and then link back to the original, as I have done above.

The difference between legal realism and critical legal studies might pertain to the possibility of improving the predictability of laws. Remembering that critical legal studies rejects the empirical method of realism because that method arguably concludes what it assumes, critical legal studies argues that the inherently subjective nature of empirical research makes it difficult to conclude any general assessment of the law using that method.

More to the point, if critical legal studies denies the empirical method of realism, the conceptual method of positivism and the moral evaluative method of natural law, then what method does it promote? If it does not promote any method as being adequate, why might this be? If critical legal studies is effectively non-normative, is this the same thing as being quietistic or even nihilistic, claiming that certain methods of altering the law are not only ineffective, but that all methods are ineffective because “in [. . .] fact [critical legal theorists] do not believe it is possible to change the system enough, or [that we] have the ability to remove human biases, to actually alter the system and make the improvements necessary”?

1 comment:

  1. Honestly, I am a little confused by reading this, is this in agreement with me or a dispute of my beliefs? I am not attmepting to cause problems I just am not sure after reading your post. As far as the promotion of any method by CLST, I believe that by its very nature, CLST is supposed to be a pure critique of the current systems with no promotion or attempt to fix the current system.

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