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School of Law

Law & Critique

Course Code:
15PLAH053
Unit value:
0.5
Taught in:
Term 2

Objectives and learning outcomes of the course

(1) Master a variety of analytical tools in critical theories of law
(2) Critically engage with legislation and case law in different contexts through the critical tools they acquire in this course
(3) Analyse sophisticated theoretical interventions through engagement with, and close reading of, primary texts of critical legal scholars.
(4) Distinguish between the different strands of critical thought: legal realism, critical legal studies, critical race theory, and law & society movement.
(5) Reflect on, compare, and assess the different methods used by critical theorists, e.g.: analytical philosophy, structuralism, post-structuralism, comparativism, empirical studies, genealogy.
(6) Express and apply an inter-disciplinary understanding of the law by seeing the connections between the law and other disciplinary fields and applying different philosophical, sociological, and historical materials to the conceptualization of the law.
(7) Draw the connection between similar questions and critical moves in different legal fields (be it administrative law, private law, constitutional law).          

Scope and syllabus

The course will allow students to engage in high level debates of a diverse tradition of critical thought in studying the law and the intersection between law and society as well as other fields of knowledge. Although some students occasionally encounter some of the critical schools and authors in other courses they rarely have the chance to read first-hand the primary materials produced by these schools and hence to develop a rich and deep understanding of these ideas. This course introduces students to these primary texts. It also shows the genealogy of critique as different critical theories evolve not only in reaction to dominant ideas in law but also in reaction to other critical theories. The course attempts show the applicability of these critiques to different legal fields and hence the classes will be divided into different themes as well as different critical schools and authors. The course aims at providing students interested in critical thought with rigorous methodological and analytical foundations that will be useful to them in their study of the law and beyond. Here is a tentative syllabus (the following list is merely indicative and may change according to convener’s discretion):           

Class 1: Introduction: How Do we Experience Modern Law?
Franz Kafka, The Trial (Oxford University Press, 2009)
Franz Kafka, In the Penal Colony, in The Metamorphosis and Other Stories (Oxford University Press, 2009)

Extra:
Gilles Deleuze & Felix Guattari, Kafka: Toward a Minor Literature (University of Minnesota Press, 1986)
Richard Posner, Law and Literature 170-186, 229-250 (3rd edition, 2009)

Class 2: What is “Rights”!? The Analytics of Rights
Wesley Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23(1) Yale Law Journal 16 (1913)

Extra:
Fisher, Horwitz & Reed, American Legal Realism (Oxford University Press, 1993) (ch.1)
Joseph William Singer, Legal Realism Now, 76 California Law Review 465 (1988).

Class 3: The Critique of the Public/Private Distinction and “Free” Markets:
Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Political Science Quarterly 470 (1923).
Morris Cohen, Property and Sovereignty, in Law and the Social Order: Essays in Legal Philosophy (1933)
Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 University of Pennsylvania Law Review 1394 (1982).   

Extra:
Karl Marx, On the Jewish Question, in The Marx—Engels Reader (2nd ed., Robert Tucker-ed., 1978)
Alan Freeman & Elizabeth Mensch, The Public-Private Distinction in American Law and Life, 36 Buffalo Law Review 237 (1987)

Class 4: The Distributive Stakes of Law: bargaining in the shadow of law, and indeterminacy:
Duncan Kennedy, The Stakes of Law, or Hale and Foucault! 15 Legal Studies Forum 327 (1991)
Duncan Kennedy, A Left Phenomenological Critique of the Alternative to Hart/Kelsen Theory of Legal Interpretation, in Legal Reasoning: Collected Essays (2008)  

Class 5: Proliferation of Rights; Rights as mediation
Duncan Kennedy, The Critique of Rights in Critical Legal Studies, LEFT LEGALISM/ LEFT CRITIQUE (Brown and Halley, eds., 2002)

Class 6: Law and society movement: Critique of social change via law
Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2nd ed., 2008)

Extra:
Michael Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Virginia Law Review 1 (1996).
Richard Abel, Law and Society: Project and Practice, 6 Annual Review of Law and Social Sciences 1 (2010)

Class 7: The Critique of the Politics of Recognition
Nancy Fraser, Rethinking Recognition, 3 New Left Review 107 (2000).
Richard T. Ford, Beyond “Difference”: A Reluctant Critique of Legal Identity Politics, 38 in Left Legalism/ Left Critique (Wendy Brown & Janet Halley—eds., Duke University Press, 2002)

Extra:
Charles Taylor, The Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition (Amy Gutman—ed., 1994).  

Class 8: Democratizing Bureaucracy
Gerald Frug, The Ideology of Bureaucracy in American Law, 97 Harvard Law Review 1267 (1984).
Gerald E. Frug, Administrative Democracy, 40 Toronto Law Journal 240 (1990).

Class 9: Critical Race Theory
Critiques of CLS: Kimberle Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harvard Law Review 1331 (1988).
Critiques of Feminism: Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stanford Law Review 581 (1990).

Extra:
Race and Races: Cases and Resources for a Diverse America (Perea, Delgado, Harris, Stefancic, Wildman—eds., 2nd ed., 2007)

Class 10: How Do we Study Law? Hierarchy in Legal Education
Duncan Kennedy, Legal Education as Training for Hierarchy, in The Politics of Law: A Progressive Critique (David Kairys—ed., 3rd ed., 1998).

Method of assessment

Assessment weighting: 100% coursework (three reaction papers 1,000 word 10% each and one 4,000 word essay 70%). Resubmission of coursework regulations apply.

Suggested reading

Select reading materials:
Abel, Richard. 2010. Law and Society: Project and Practice, 6 Annual Review of Law and Social Sciences 1.
Cohen, Morris. 1933. Property and Sovereignty, in Law and the Social Order: Essays in Legal Philosophy.
Crenshaw, Kimberle Williams. 1988. Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harvard Law Review 1331.
Deleuze, Gilles & Felix Guattari, 1986. Kafka: Toward a Minor Literature. University of Minnesota Press.
Fisher, Horwitz & Reed. 1993. American Legal Realism. Oxford University Press.
Ford, Richard T. 2002. Beyond “Difference”: A Reluctant Critique of Legal Identity Politics, in Left Legalism/ Left Critique (Wendy Brown & Janet Halley—eds., Duke University Press)
Fraser, Nancy. 2000. Rethinking Recognition, 3 New Left Review 107.
Freeman, Alan & Elizabeth Mensch. 1987. The Public-Private Distinction in American Law and Life, 36 Buffalo Law Review 237.
Frug, Gerald. 1984. The Ideology of Bureaucracy in American Law, 97 Harvard Law Review 1267.
--------------. 1990. Administrative Democracy, 40 Toronto Law Journal 240.
Harris, Angela. 1990.  Race and Essentialism in Feminist Legal Theory, 42 Stanford Law Review 581.

Hohfeld, Wesley. 1913. Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23(1) Yale Law Journal 16.
Hale, Robert. 1923. Coercion and Distribution in a Supposedly Non-Coercive State, 38 Political Science Quarterly 470.
Kafka, Franz. 2009. The Trial (Oxford University Press)
Kafka, Franz. 2009. In the Penal Colony, in The Metamorphosis and Other Stories (Oxford University Press)
Kennedy, Duncan. 1982. The Stages of the Decline of the Public/Private Distinction, 130 University of Pennsylvania Law Review 1394.
---------. 1991. The Stakes of Law, or Hale and Foucault! 15 Legal Studies Forum 327.
-----------. 1998. Legal Education as Training for Hierarchy, in The Politics of Law: A Progressive Critique (David Kairys—ed., 3rd ed.).
----------. 2002. The Critique of Rights in Critical Legal Studies, LEFT LEGALISM/ LEFT CRITIQUE (Brown and Halley, eds.)
-----------. 2008. A Left Phenomenological Critique of the Alternative to Hart/Kelsen Theory of Legal Interpretation, in Legal Reasoning: Collected Essays.     
Klarman, Michael. 1996. Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Virginia Law Review 1.
Marx. Karl. 1978. On the Jewish Question, in The Marx—Engels Reader (2nd ed., Robert Tucker-ed.)
Perea, Delgado, Harris, Stefancic, Wildman—eds,. 2007. Race and Races: Cases and Resources for a Diverse America (2nd ed.)
Posner, Richard. 2009. Law and Literature (3rd edition)
Rosenberg, Gerald. 2008 The Hollow Hope: Can Courts Bring About Social Change? (2nd ed.)
Singer, Joseph William. 1988. Legal Realism Now, 76 California Law Review 465.
Taylor, Charles. 1994. The Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition (Amy Gutman—ed.).