Central Asia and the globalisation of the contemporary legal consciousness

What is the logic which governs the processes of legal globalization? How does the transnational proliferation of legal forms operate in the contemporary geo-juridical space? What are the main defining characteristics of the currently dominant mode of transnational legal consciousness and how can the concept of legal consciousness help us understand better the historical ebb and flow of the Western-led projects of good governance promotion in regions like Central Asia after the fall of the Soviet Union? Using Duncan Kennedy’s seminal essay Three Globalizations of Law and Legal Thought as its starting platform, this essay seeks to explore these and a series of other related questions, while also drawing on the work of the Greek Marxist lawyer-philosopher Nicos Poulantzas to help elucidate some latent analytical stress-points in Kennedy’s broader theoretical framework. Reacting against the neo-Orientalist tone adopted across much of the contemporary field of Central Asian studies, it develops an alternative account of the internal history of the legal-globalizational encounter between the Western-based reform entrepreneurs and the national legal-political elites in Central Asia in the post-1991 period, complementing it with a detailed description of the general institutional and discursive structures within which this encounter took place

A Left of Liberal Interpretation of Trump\u27s Big Win, Part One: Neoliberalism

Trump’s narrow victories in swing states could have been caused by any number of factors, but it is still significant that there was a nation-wide shift of the non-college white electorate, male and female. Many non-college Democrats who had voted for Obama did not turn out for Hillary and some voted for Trump; many Republicans who had not voted for Romney turned out for Trump. This article proposes, as part of the explanation, a rebellion of non-college whites against the consequences for poor communities, in red states or in red pockets in blue states, of four decades of neoliberal selective deregulatory policies. It argues that this part of the vote for Trump was a vote against policies shared by Republicans and Democrats, policies that have “devastated” not the country as a whole but this particular part of the country, along with, paradoxically, poor inner city blacks

How the Law School Fails: A Polemic

To the committed empiricist, the pages which follow will seem no more credible than a child\u27s tortured dream. Yet even the committed empirist must recognize that for the time being at least there are areas inaccessible to him, areas where what passes for knowledge must be no more than a network of intuitions and theories dimly grasped. The current malaise at the Law School is a subject which lies in such an area. Faculty and student body seem equally affected, but neither seems able to express its feelings in any way except indirectly, in moments of bitterness or disillusionment, in lethargy or a febrile verbalism. It is perhaps because of this elusive quality of the subject that I find myself unable to approach it in any other tone than that of moral exhortation

American Constitutionalism as Civil Religion: Notes of an Atheist

People who study American constitutionalism refer often to religion as an analogy, or treat constitutionalism as a form of civil religion

The Disenchantment of Logically Formal Legal Rationality, or Max Weber\u27s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought

Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. Professor Kennedy\u27s appreciation of Weber\u27s sociology of law begins with a summary description of the Western legal thought of Weber\u27s time as it looks from our present one hundred years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. He then presents Weber\u27s sociology of law, comparing and contrasting his approach with that of the social current. According to Professor Kennedy, the most striking thing about Weber\u27s sociology of law, from the perspective of legal theory a century after he wrote, is his ambivalent endorsement of legal formalism. This entailed rejection of the social current\u27s critique, a critique that is close to universally accepted today. Professor Kennedy explains Weber\u27s attitude toward legal formalism as motivated by the internal requirements of his theory of domination, in which, after the demise of all earlier modes of legitimation, the Iron Cage of modernity is held together by bureaucrats defined by their adherence to that mode of legal reasoning. He then argues that Weber\u27s approach was inconsistent with the irrationalist and decisionist strands in his own theory of modernity, a theory that helps in understanding the current situation of legal thought, if we take the un-Weberian step of applying it to legal formalism. Finally, Professor Kennedy offers an interpretation of the contemporary mode of legal thought as an episode in the sequences of disenchantment and reenchantment suggested by Weber\u27s philosophy of history, and uses Weberian elements to construct a distinct contemporary ideal type of legal thought. The very brief conclusion suggests the strong affiliation between Weber (read as above) and one of the sects of modern legal theory, namely critical legal studies