The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

ELIZABETH MENSCH


1
THE HISTORY OF MAINSTREAM LEGAL THOUGHT

THE most corrosive message of legal history is the message of contingency.1 Routinely, the justificatory language of law parades as the unquestionable embodiment of Reason and Universal Truth; yet even a brief romp through the history of American legal thought reveals how quickly the Obvious Logic of one period becomes superseded by the equally obvious, though contradictory, logic of subsequent orthodoxy. The account that follows is a short, and necessarily superficial, summary of the major changes that have taken place in American legal thought since the start of the nineteenth century. There will be no attempt to examine the complex causes of those changes, nor any effort to locate them in social or economic context. The goal is more limited: to describe the legal consciousness of distinct (although overlapping) periods of American legal thought. Since the effort is to reconstruct the world view of those who have been most directly concerned with making, explaining, and applying legal doctrine, many theorists who have written on the fundamental questions of jurisprudence are omitted. This is an account of conventional, and therefore often wholly unreflecting and unselfconscious, legal consciousness.2

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