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common with social theory) treated doctrine as the expression of a particular vision of society and emphasised the contradictory and manipulable character of doctrinal argument. The second took as its point of departure the idea that law and legal doctrine ‘reflect, confirm, and reshape the social divisions and hierarchies inherent in a type or stage of social organization such as “capitalism”’.[1] These closely resemble the points made by Snyder in respect of EC legal studies.
More accessible to the public at large was a set of essays on the politics of law edited by David Kairys. The presentation of law and judicial decision-making as autonomous in the sense of separate from politics, and impersonal was, Kairys wrote, a picture of ‘government by law, not people’ separate from or ‘above’ politics, economics, culture, or the values or preferences of judges’.[2] Kairys repudiated this ‘popular perception’ of the judicial process and claimed on behalf of the collection to be presenting or at least aiming for ‘a progressive, critical analysis of the operation and social role of the law in contemporary American society’.[3] Kairys himself fired well-aimed shots at ‘the language of legal discourse and mystique of legal reasoning’, arguing that they served a primarily ideological purpose, with outcomes determined by social and political judgment; ‘law is simply politics by other means’.[4] Essays on a wide variety of legal subjects were contributed by legal practitioners and academics but using methods drawn from sociology, economics, political science and law. This was something like the approach that Snyder was hoping for.
3. Follow my leader: the UK
In the UK, where realism had not taken root, formalism and legal positivism were more firmly entrenched. The task of the judge was presented as ‘wholly analytical – to discover the previously existing law, and to apply it logically to the case before the court’.[5] British judges did not consider policy questions – at least, not openly. And Terence Daintith, embarking some years later on a legal analysis of economic policy, referred to ‘wide acceptance’ in both academic and practitioner circles of the idea that:
the writer on public law matters should deliberately distance himself from the hurly-burly of economic events and political action and conflict, and should draw a picture of constitutional and administrative law which is purified of non-legal, short-run influences.. .. In the result, the mainstream of British writing by lawyers about the constitution analyses constitutional principles and structures largely to the exclusion of any consideration of the activities in which the organs of government are engaged or the purposes with which they pursue them.[6]
In fact, by the time Daintith wrote, the influence of legal positivism was on the wane. The first number of the British Journal of Law and Society appeared in 1974 and Phil Thomas, its pioneering editor, traced the study of law in society back to 19th-century European sources: Durkheim, Marx and Weber and, in England, Maine and perhaps more surprisingly, Dicey.[7] The new journal
- ↑ R Unger, ‘The Critical Legal Studies Movement’ 96 (1983) Harvard Law Review 561–75 at fn 11.
- ↑ D Kairys, ‘Introduction’ in Kairys The Politics of Law (n 15) 1–8, at 1.
- ↑ Ibid. at 8.
- ↑ D Kairys, ‘Legal Resoning’ in Kairys The Politics of Law (n 15), 11–17, at 16–17.
- ↑ KC Davis, ‘The Future of Judge-Made Public Law in England: A Problem of Practical Jurisprudence’ 61 (1961) Columbia Law Review 201–20, at 201, 202. See also P Atiyah and R Summers, Form and Substance in Anglo-American Law, A Comparative Study of Legal Reasoning, Legal Theory and Legal Institutions (Clarendon Press 1987).
- ↑ T Daintith, ‘Legal Analysis of Economic Policy’ 9 (1982) Journal of Law and Society 191–224. See also T Daintith, ‘Law as a Policy Instrument: A Comparative Perspective’ in T Daintith (ed), Law as an Instrument of Economic Policy: Comparative and Critical Approaches (de Gruyter 1988) 3–55.
- ↑ Whether Dicey was or believed himself to be a legal positivist is hotly disputed: see, eg, MD Walters, Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge University Press 2020); P Cane, ‘Dicey as a Legal Theorist’ (forthcoming).
