Critical Legal Thought: The Case for a Jurisprudence of Distribution

Abstract

Critique is the standard model of legal scholarship. The typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or axiological criteria, and proposes some minor or moderate improvement to it.

This standard model of legal critique and improvement is politically stabilizing, practically effective, and intelligible only because it is set within a powerful paradigm of law and legal thought. I have named this paradigm The Great Alliance. It is great because of its intellectual brilliance and political resilience. It is an alliance because it brings together three of the main forces in thought and politics in modern times: historicism, rationalism, and democracy.

Whereas critique is the standard model of legal analysis under The Great Alliance, critical legal thought means something other than this standard model. Critical legal thought faces higher and more demanding theoretical requirements than is generally recognized. Three such requirements set critical legal thought apart from and above not only the critical ethos characteristic of the standard model of legal analysis but also of more ambitious varieties of global critique of law.