In recent years Duncan Kennedy has turned to the question, what is Contemporary Legal Thought? For the most part, his answers have focused on the modes of legal argument he believes are indigenous to Contemporary Legal Thought in the United States, and possibly, at a transnational or global level as well. In this article, I bracket the question of content and ask instead, if we are interested in exploring the category of a legal ‘contemporary’, how do we do so? What historiographic methods are well-suited to the task of constituting ‘Contemporary Legal Thought’? My focus here is entirely on legal structuralism, the historical method I associate with Kennedy’s work beginning in the 1970s. By the mid-1980s, legal structuralism was under assault and quickly fading from the repertoire of available styles of doing history on the left. By the turn of the century, legal structuralism appeared to have vanished. I think that this was regrettable and unnecessary, and in this article I argue for a return to structuralist historiography. I do not pretend, however, that this return entails a second coming of the totalizing, originary center. Rather, I encourage thinking about legal structuralism in the way that I understand Roland Barthes, Hayden White, and to a large extent Duncan Kennedy himself to have thought about it: as a style. And as a style, legal structuralism is worth reawakening, a style back in style once more.
This is a preview of subscription content, access via your institution.
Buy single article
Instant access to the full article PDF.
Tax calculation will be finalised during checkout.
Subscribe to journal
Immediate online access to all issues from 2019. Subscription will auto renew annually.
Tax calculation will be finalised during checkout.
See, e.g., Frug (1980, p. 1074): ‘[L]iberalism describes in the most fundamental way how most of us understand any political system, because it also describes the way we understand ourselves and society as a whole. Liberalism is our world view, one that emerged from such theorists as Hobbes and Locke, was developed by both Bentham and Rousseau, and was forcefully expressed in the mid-nineteenth century in the work of John Stuart Mill. It so pervades our thinking that it can be contrasted only with radically different ways of understanding the world, such as that based on medieval thought or that derived from modern critiques of liberalism itself.’ And yet, just a few paragraphs later, Frug cautioned: ‘While this Article discusses only the development of liberal ideas, I am not suggesting that liberal theory by itself has caused or controlled the changing status of Western cities. I do not deny the role of economic, social, or political factors or even other ideas in the development of cities. Instead, I am simply bringing to the surface an aspect of our social life that has too often gone unnoticed’ (Frug 1980, p. 1078).
By ‘we,’ I am referring to the dominant mode of analytic philosophy. In contrast, philosophers like John Dewey took the view that the scientific method ought to be applied to questions of ethics and the like (Dewey 1920).
This is a riff on Rorty’s discussion of Galileo and Bellarmine. ‘At this point, it seems to me, we would do well to abandon the notion of certain values (“rationality”, “disinterestedness”) floating free of the educational and institutional patterns of the day. We can just say that Galileo was creating the notion of scientific values as he went along, that it was a splendid thing that he did so, and that the question of whether he was “rational” in doing so is out of place’ (Rorty 1979, p. 331). For further discussion in the related terrain of Science and Technology Studies, see Riles (2005). See also Riles (2000) and Riles (2008) for a very helpful view of legal fiction quite similar to the notion of style articulated in this article.
Bacon, Francis. 1998. The history of the reign of King Henry VIII and selected works, ed. Brian Vickers. New York: Cambridge University Press.
Barthes, Roland. 1972. The structuralist activity. In The structuralists: From Marx to Levi-Strauss, eds. Richard T. de George & Fernande M. de George. Garden City: Anchor Books.
Barthes, Roland. 1975. S/Z. London: Jonathan Cape.
Barthes, Roland. 1983a. Myth today. In A Barthes reader, ed. Susan Sontag. New York: Hill and Wang.
Barthes, Roland. 1983b. Inaugural address. In A Barthes reader, ed. Susan Sontag. New York: Hill and Wang.
Bloom, Harold. 1979. Deconstruction and criticism. New York: Seabury Press.
Boyle, James. 1985. The politics of reason: Critical legal theory and local social thought. University of Pennsylvania Law Review 133: 685–780.
Braudel, Ferdinand. 1984. Civilization and capitalism, 15th century–18th century, Vol. I: The structure of everyday life. New York: Harper and Row.
Burke, Kenneth. 1969. A grammar of motives. Berkeley: California University Press.
Cohen, Morris, and Ernest Nagel. 1934. An introduction to logic and scientific method. New York: Harcourt, Brace and Company.
Coward, Rosalind, and John Ellis. 1977. Language and materialism: Developments in semiology and the theory of the subject. London: Routledge and Paul.
Culler, Jonathan. 1982. On deconstruction: Theory and criticism after structuralism. Ithaca: Cornell University Press.
Culler, Jonathan. 2006. Structuralism: Critical concepts in literary and cultural studies, Vol. I–IV. New York: Routledge.
Deleuze, Gilles. 1998. How do we recognize structuralism? In The two-fold thought of Deleuze, Guattari: Intersections, animations, ed. Charles J. Strivale. New York: Guilford Press.
De Man, Paul. 1973. Rhetoric and semiology. Diacritics 3: 27.
Derrida, Jacques. 2007. Structure, sign, and play in the discourse of the human sciences. In The structuralist controversy: The languages of criticism and the sciences of man, ed. Richard Mackey, and Eugenio Donato. Baltimore: Johns Hopkins University Press.
Desautels-Stein, Justin. 2012. Experimental pragmatism in the third globalization. Contemporary Pragmatism 9: 181–204.
Dewey, John. 1920. Reconstruction in philosophy. New York City: H Holt and Company.
Dummet, Michael. 1993. Origins of analytical philosophy. Cambridge, Mass: Harvard University Press.
Foucault, Michel. 1982. Archeology of knowledge and the discourse on language. New York: Vintage Books.
Foucault, Michel. 1994. The order of things: An archeology of the human sciences. New York: Vintage Books.
Friedlander, Saul. 1992. Probing the limits of representation: Nazism and the ‘final solution’. Cambridge, Mass: Harvard University Press.
Frug, Gerald. 1980. The city as a legal concept. Harvard Law Review 93: 1059–1154.
Glock, Johann. 2008. What is analytic philosophy? New York: Cambridge University Press.
Greenblatt, Stephen. 2005. Renaissance self-fashioning: From More to Shakespeare. Chicago: Chicago University Press.
Hegel, G.W.F. 1956. The philosophy of history. New York: Courier Dover Publications.
Heller, Thomas. 1984. Structuralism and critique. Stanford Law Review 36: 127–198.
Herder, Johann Gottfried. 1968. Reflections on the history of mankind. Chicago: University of Chicago Press.
Higham, John, and Paul K. Conkin (eds.). 1979. New directions in American intellectual history. Baltimore: Johns Hopkins University Press.
Hunt, Lynn. 1991. History as gesture; or the scandal of history. In Consequences of theory: Selected papers from the English Institute, 1987–1988, eds. Jonathan Arac and Barbara Johnson. Baltimore: Johns Hopkins University Press.
Iggers, George. 1997. Historiography in the twentieth century: From scientific objectivity to the postmodern challenge. London: Wesleyan University Press.
Leiter, Brian. 2007. Naturalizing jurisprudence: Essays on American legal realism and naturalism in legal philosophy. Oxford: Oxford University Press.
Lovejoy, Arthur. 1976. The great chain of being: A study of the history of an idea. Cambridge, Mass: Harvard University Press.
Kant, Immanuel. 1963. On history. New York: Library of Liberal Arts, Bobbs-Merrill Co.
Kennedy, David. 1986a. Critical theory, structuralism, and contemporary legal scholarship. New England Law Review 21: 209–289.
Kennedy, Duncan. 1986b. Freedom and constraint in adjudication: A critical phenomenology. Journal of Legal Education 36: 518–562.
Kennedy, Duncan. 1997. A critique of adjudication (fin de siècle). Cambridge, Mass: Harvard University Press.
Kennedy, Duncan. 2001. A semiotics of critique. Cardozo Law Review 22: 1147–1189.
Kennedy, Duncan. 2006a. The rise and fall of classical legal thought. Washington: Beard Books.
Kennedy, Duncan. 2006b. Three globalizations of law and legal thought 1850–2000. In The new law, economic development: A critical appraisal, ed. Alvaro Santos, and David Trubek. New York: Cambridge University Press.
Kloppenberg, James. 1989. Objectivism and historicism: A century of American historical writing. The American Historical Review 94: 1011–1030.
Kuhn, Thomas. 1962. The structure of scientific revolutions. Chicago: Chicago University Press.
Latour, Bruno, and Steve Woolgar. 1979. Laboratory life: The construction of scientific facts. Beverly Hills: Sage Publications.
Mackay, Ray. 1996. Mything the point: A critique of objective stylistics. Language & Communication 16: 81–93.
Minda, Gary. 1995. Postmodern legal movements: Law and jurisprudence at century’s end. New York: New York University Press.
Novick, Peter. 1988. That noble dream: The ‘objectivity question’ and the American historical profession. Cambridge: Cambridge University Press.
Olsen, Bjornar. 1990. Roland Barthes: From sign to text. In Reading material culture, ed. Christopher Tilley. Cambridge: Blackwell.
Peller, Gary. 1985. The metaphysics of American law. California Law Review 73: 1151–1290.
Ranke, Leopold. 1966. History of reformation in Germany. New York: F. Unger Pub. Co.
Riles, Annelise. 2000. The network inside out. Ann Arbor: University of Michigan Press.
Riles, Annelise. 2005. A new agenda for the cultural study of law: Taking on the technicalities. Buffalo Law Review 53: 973–1033.
Riles, Annelise. 2008. Cultural conflicts. Law and Contemporary Problems 71: 273–308.
Rorty, Richard. 1979. Philosophy and the mirror of nature. Princeton: Princeton University Press.
Sabel, Charles, and William Simon. 2011. Minimalism and experimentalism in the administrative state. Georgetown Law Journal 100: 53–93.
Saussure, Ferdinand. 1959. Course in general linguistics. New York: Philosophical Library.
Short, M. 1998. Stylistics, criticism, and myth-representation again: Squaring the circle with Ray Mackay’s subjective solution for all problems. Language and Literature 7: 39–50.
Skinner, Quentin. 2008. Hobbes and republican liberty. Cambridge: Cambridge University Press.
Sluga, Hans. 1998. What has history to do with me? Wittgenstein and analytic philosophy. Inquiry 41: 99–121.
Sturrock, John. 1979. Roland Barthes. In Structuralism, since: From Levi-Strauss to Derrida, ed. John Sturrock. Oxford: Oxford University Press.
Thompson, E.P. 1966. The making of the English working class. New York: Vintage Books.
Voltaire. 2007. The history of Charles XII, King of Sweden. Whitefish, Montana: Kessinger Publishing.
Wang, Hao. 1986. Beyond analytic philosophy: Doing justice to what we know. Cambridge, Mass: MIT Press.
Weber, Max. 1949. Objectivity in social science and social policy. In The methodology of the social sciences, ed. E.A. Shils. New York: Free Press.
White, Hayden. 1975. Metahistory: The historical imagination in nineteenth century Europe. Baltimore: Johns Hopkins University Press.
White, Hayden. 1978. Tropics of discourse: Essays in cultural criticism. Baltimore: Johns Hopkins University Press.
White, Hayden. 1987. Content of the form: Narrative discourse and historical representation. Baltimore: Johns Hopkins University Press.
White, Hayden. 1999. Figural realism: Studies in the mimesis effect. Baltimore: Johns Hopkins University Press.
Wolpert, Lewis. 1992. The unnatural nature of science: Why science does not make (common) sense. Cambridge: Harvard University Press.
Wood, Gordon. 2010. In defense of academic writing. Perspectives on History 48: 19–20.
About this article
Cite this article
Desautels-Stein, J. Back in Style. Law Critique 25, 141–162 (2014). https://doi.org/10.1007/s10978-014-9135-7
- Legal history