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This essay, written for a book on jurisprudence in America today, asks what the critical tradition in American jurisprudence means today in the light of the events of the past 30 years.
Critical theories ask how law legitimates power in both senses of the word: how it shapes, channels and restrains power and how it mystifies, disguises, and apologizes for it. In addition, a critical theory studies how the very acts of making, interpreting and applying law produce and proliferate ever new forms of power, both just and unjust.
Critical theory features an ambivalent conception of law rather than a pejorative conception: it recognizes law's partial but incomplete autonomy from other forms of power in social life. It sees both law's limitations in the face of power and its possibilities as a means of articulating ideals of human association, channeling and restraining arbitrary power and preventing its most serious injustices.
Critical theory of law looks different today than it appeared thirty years ago because the world itself looks very different. In the world of the 1970s, critical theory pointed out how law failed when it was not supported by a robust politics; in doing so it deemphasized and marginalized positive features of law and legal culture implicit in an ambivalent conception. But in a world of executive arrogance, authoritarian posturing, and blatant disregard for rule of law values, recognizing those positive elements should also be part of a critical account of law. Critical scholars have prided themselves on their deconstructive acumen: their ability to elucidate the hidden and marginalized values and assumptions that bodies of legal doctrine deemphasize but on which they secretly depend. We should apply those same deconstructive insights to critical legal theory itself.
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