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36 results

Page 1 of 2

  • 16 - Rule of Law

  • Edited by Jean d'Aspremont, University of Manchester, John Haskell, University of Manchester
  • Book:
    Tipping Points in International Law
    Published online:
    23 October 2021
    Print publication:
    28 October 2021, pp 271-292

  • Summary

    Consider the well-travelled question, ‘What is international law?’ Unlike its confident counterparts in fields like constitutional law, administrative law, criminal law, and the like, the field of international law is downright famous for not really being sure of what it is. In its search for some closure, this uncertainty tends to flow in one of three directions. First, we have the issue of whether international law is really law at all, and so, we want to know, well then what is ‘international law’ if we cannot take its name seriously? Relying upon philosophers like John Austin or H. L. A. Hart as a starting point, the interrogation builds a particular conception of what law requires to be law qua law: something about an enforceable command issued from a superior to an inferior, or something about primary and secondary rules.

The Jurisprudence of Style
  • A Structuralist History of American Pragmatism and Liberal Legal Thought
  • Justin Desautels-Stein
  • Published online:
    22 February 2018
    Print publication:
    22 February 2018
  • In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to 'think like a lawyer'. Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law School's first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought.

  • 6 - Liberal Legalism and the Context of Legal Thought

  • from Part II - Liberal Legal Thought
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 172-194

  • Summary

    This chapter explores the concept of context. After passing over some of the conventional contexts in which the prior twelve cases might be situated, the discussion elaborates the history of the legal context. This context is fleshed out in the idea of naturalizing juridical science, and the two vehicles of legal formalism and legal functionalism.

  • 5 - The Modern Style

  • from Part II - Liberal Legal Thought
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 152-171

  • Summary

    This chapter introduces the modern style of liberal legalism. It does so through a review of six cases: Appalachian Coals v US (1933), Parker v Brown (1943), Berman v Parker (1954), Courtesy Sandwhich Shop v Port of NY Authority (1963), Edwards v Habib (1968), Boomer v Atlantic Cement Co (1970)

  • 1 - The Rise and Fall of the Harvard School

  • from Part I - Legal Structuralism
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 35-70

  • Summary

    This chapter introduces the early works of Roberto Unger and Duncan Kennedy, encapsulated in the monkier "the Harvard School" of legal structuralism. It does so in three moves: a discussion of the "jurist," the "grammar" of liberal legal thought, and the "style of argumentative practice." The chapter concludes with a survey of post-structuralist jurisprudence, a wave of critique that swamped the Harvard School for a generation.

  • 4 - The Classical Style

  • from Part II - Liberal Legal Thought
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 123-151

  • Summary

    This chapter applies the structuralist method developed in the prior three chapters to the history of liberal legal thought. It begins here with the classic style of liberal legalism. It does so through a review of six cases: Pennsylvania Coal v Sanderson (1886), Sullivan v Jones & Laughlin Steel (1904), Pumpelly v Green Bay & Mississippi Canal Co (1871), Munn v People of State of Illinois (1876), US v Trans-Missouri Freight Association (1897), Standard Oil v New Jersey (1911).

  • Coda

  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 292-298

  • Summary

    This conclusion suggests the possibility of using Kierkegaard's Knight of Faith as an analogue for thinking about an antinomian naturalism, a dissonant harmony.

  • Overture

  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 1-32

  • Summary

    This chapter presents an overview of the book's argument. It suggests that the dominant conception of what it means to think like a lawyer in the United States is obscured by a structure of legal thought called pragmatic liberalism. Pragmatic liberalism is an intellectual alliance between American Pragmatism and liberal legal thought. It introduces American Pragmatism through a brief look at a naturalizing sensibility in the arts. It then suggests that pragmatic liberalism is largely hidden due to its own way of naturalizing its ideology. The chapter argues that structuralism offers a powerful method for unmasking that ideology, and exploring why it matters.

  • 7 - American Pragmatism

  • from Part III - Pragmatic Liberalism
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 197-238

  • Summary

    This chapter introduces the cultural sensibility of American Pragmatism. It does so by presenting a historical contrast between the naturalizing and antinomian sensibilities. The contexts for this presentation is the rise of naturalism in music and painting. The discussion then moves on to philosophical pragmatism, and the suggestion that James and Dewey introduced an antinomian naturalism. The chapter concludes with the argument that American Pragmatism rescued liberal legal thought from deseutude, resulting in a new structure, pragmatic liberalism.

  • 9 - Trompe l'Oeil Liberalism

  • from Part III - Pragmatic Liberalism
  • Justin Desautels-Stein, University of Colorado Boulder
  • Book:
    The Jurisprudence of Style
    Published online:
    22 February 2018
    Print publication:
    22 February 2018, pp 262-291

  • Summary

    This chapter develops a critique of pragmatic liberalism. It identifies three illusions generated in the structure and style of pragmatic liberalism. The first is a surface illusion in which social transformation is only thought possible by mild reform or systemic substitution. The second is a conceptual illusion in which settled legal concepts are regarded as far more important than our practices of legal argument. The third is an historical illusion in which pragmatism melts out into an everlasting present, denying the visibility of contemporary structure.

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