Villanova University Charles Widger School of Law Digital Repository
Abstract
This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, and taking its lead from Duncan Kennedy’s suggestive argument that Realism failed to gain traction in Europe because of the obscene cast that the Third Reich gave to its project, the essay gives a critical account of the contemporary inheritances of the Realists’ account of law and their reliance on social science. It argues that interdisciplinary work in studies of law and the linguistic humanities and human sciences might be deployed in reviving the subject of law, generating a thick account of what law is and might be, of how its institutions, discourses, texts and subjects are formed in culture and history, and of how legal subjects reproduce culture and make history in their turn
