AT-CSL-K-cards -...

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c53eb696dd069d7289b252b5b82e5356e9fd2db7.doc Dartmouth 2K9 1 General Using the law is key to change society Allan C. Hutchinson and Patrick J. Monahan , 1984 , “Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought,” 36 Stan. L. Rev. 1999 The Critical scholars have striven hard to avoid the charge of nihilism. They have appreciated the strategic necessity for offering a viable alternative vision of the just society.163 But their fledgling attempts at social reconstruction have proven vulnerable to the same Critical sword that they wielded to slay liberalism and Marxism. The CLS notions of social contingency and the self-other contradiction are potent, yet unruly . Any theorist who is prepared to embrace completely their implications is pushed into a theoretical corner . The only escape is to choose one of two alternatives, both of which lead to a political dead end .164 The first alternative is a call to march under the black flag of anarchism .165 All forms of state authority would be rejected as a denial of individual autonomy ; the individual supposedly would be free to evaluate all external constraints on their own particular merits. Any form of external authority would be despotic . The search for a "just" form of political association would be abandoned as misguided and futile. Instead, the anarchist would seek to educate people about the inherently repressive nature of all political institutions. As such, anarchism is a philosophy of optimism: It views individual creativity as unpatterned, yet intrinsically harmonious. Man is seen as a societal creature who is naturally attentive to others' needs.166 Whatever anarchism's claim to philosophical respectability may be,'67 there is no indication that the Critical scholars are prepared to embrace it, or even to explore its possibilities. Indeed, they appear firmly committed to denying its plausibility, or at least its desirability. For instance, Gerald Frug proposes to reorganize the state via decentralization, not to destroy it.'68 Similarly, Roberto Unger seeks to empower the state rather than to emasculate it;'69 a powerful state is necessary to fracture existing patterns of social hierarchy and domination. In complete contrast to the anarchists, the CLSers identify and honor the state as the most effective device for transformative action . Consequently, although there are "as many forms of anarchism as there are anarchists,"'70 one cannot plausibly maintain that the Critical scholars' visions of a liberated future are anarchical in either substance or spirit.171 The state has a major function in the Critical scheme of things to come . Since the CLSers find anarchism unpalatable or simply too utopian , the only other way out of their theoretical corner is to engage in "advocacy scholarship."'72 The jurists engaged in this restricted enterprise hold no illusions about the true nature of moral discourse. They concede that the attempt to imagine or create a "just" social world is futile. They fully accept the view that all social arrangements are
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This note was uploaded on 12/20/2010 for the course K 101 taught by Professor Staff during the Fall '10 term at UMass Lowell.

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AT-CSL-K-cards -...

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