Legal ModernismModernism in legal theory is no different from modernism in the arts: both respond to a cultural crisis, a sense that institutions and traditions have lost their validity. Some doubt the importance of the rule of law, others question the objectivity of legal reasoning. We have lost confidence in the justice of our legal institutions, and even in our very capacity to identify justice. Legal philosopher David Luban argues that we cannot escape the modernist predicament. Accusing contemporary legal theorists of evading rather than confronting the challenge of modernity, he offers important and original objections to pragmatism, traditionalism, and nihilism. He argues that only by weaving together the broken narrative and forgotten voices of history's victims can we come to appreciate the nature of justice in modern society. Calling a trial the embodiment of the law's self-criticism, Luban demonstrates the centrality of narrative by analyzing the trial of Martin Luther King, the Nuremberg trials, and trial scenes in Homer, Hesiod, and Aeschylus. With these examples, Luban explores several of the tensions that motivate much more contemporary legal theory: order versus justice, obedience versus resistance, statism versus communitarianism. ". . . an illuminating account of how contemporary legal theory can be understood as an expression of 'the modernist predicament' by exploring the analogy between modernism in the arts and modernism in law, politics, and philosophy. . . . a valuable critical discussion of modern legal theory." --Choice David Luban is Morton and Sophia Macht Professor of Law at the University of Maryland and Research Scholar at the Institute for Philosophy and Public Policy. His other books include Lawyers and Justice: An Ethical Study. |
Contents
We Copernicans | 1 |
Theories | 49 |
Legal Modernism | 51 |
Legal Traditionalism | 93 |
Doubts about the New Pragmatism | 125 |
Hannah Arendt and the Primacy of Narrative | 179 |
Trials | 207 |
Difference Made Legal The Court and Dr King | 209 |
Some Greek Trials | 283 |
The Legacies of Nuremberg | 335 |
Concluding Reflections | 379 |
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Common terms and phrases
Achilles action Aeschylus Agamemnon American Apollo Arendt argued argument Article 6(a Athena authority avant-gardism avant-gardist believe Benjamin Birmingham chapter civil rights claim communitarian concept constitutional contemporary context Copernican crimes criminal Critical Critical Legal Studies critique culture decision defendants demonstrators Descartes disobey doctrine Erinyes essay Eumenides fact G. E. M. Anscombe Hannah Arendt Hesiod Holmes Homer human important individual injunction inquiry insist judges judicial justice Kant King King's Letter Kronman Law Review legal theory meaning ment modernism modernist modernist predicament moral natural Nazi neo-Kantian Nuremberg trial Oresteia Orestes painting past philosophy Plato political narrative practice pragmatism pragmatists problem punishment question reason response Roll Over Beethoven Rorty rule of law sense skeptical social society Socrates sovereignty stare decisis story supra note supra note 11 Supreme Court theme tion tradition traditionalism trans Trattenbach truth understanding Unger unjust Wittgenstein Zeus