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Asking the Right Question
Published online by Cambridge University Press: 27 December 2018
Extract
Marianne Constable's essay, “Genealogy and Jurisprudence,” brings the intellectual history of the law and society field within the framework of Nietzsche's six-stage history of metaphysics. Reorganized within that framework, the work of particular law and society scholars is seen to represent stages of thought about the relationship between the world of appearances described in empirical research and the possibilities for human action. Successive movements among law and society scholars pass, like Nietzsche's history of metaphysics, through stages of “error” (positivism, empiricism, critical legal studies, interpretive studies, constitutive theory), moving closer to complete acceptance of the view that action need not follow either legal rules or empirically described patterns and, thus, can be free.
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- Copyright © American Bar Foundation, 1994
References
1 Marianne Constable, “Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law,” 19 Law and Soc. Inquiry 551 (1994).Google Scholar
2 This essay asks what law and society scholarship should be about. Many would agree with one of Constable's principal criticisms, namely, that law and society scholarship should not be about knowing an already enacted world. Criticisms have been directed at a variety of concerns, including normal social science methods, avoiding a dialogue with established institutional values, and freeing perceptions of law and society from those “privileged” by normal science. These are different problems and could be addressed by different responses.Google Scholar
3 Donald Black's work is taken to epitomize such a view.Google Scholar
4 Constable points to such errors in the work of Unger, who argues at points that rules are needed to establish community, and in the work of Sarat and Kearns, who express a fear of unreasoning agency.Google Scholar
5 Her dissatisfactions with the most recent turn to interpretive methods and constructive theory on one hand and with “normal” social science on the other, are the same, namely, that they ultimately view social behaviour as contained and determined.Google Scholar
6 Donald J. Black, The Behaviour of Law 137 (New York: Academic Press, 1976).Google Scholar
7 Thus, Nietzsche is often linked with fascism, because to destroy “reason” in all its institutionalized forms is not to destroy existing hierarchy or power.Google Scholar
8 Since the contemporary law and society movement began with the careers of these scholars, the tenor of law and society scholarship has been greatly influenced by the perceptions I am about to describe.Google Scholar