Two Theses of Critical Jurisprudence

The central themes of the account of legal ideals offered by critical jurisprudence are Conflict Thesis, which means that conflicting theories are available with respect to any given body of law at any time, and Structure Thesis, which means that every field of law is structured by an ideology which may be shown to exist by contrasting ideals foreclosed. Conflict Thesis is developed as a response to idealists’legal doctrine that if we find principles, policies and purposes underlying in rules, we can solve hard case situation in which rules cannot determine particular results because of a conflict or a gap between rules. Especially, Dworkin asserts that judges can make non-discretionary decision in hard case if they recognize a set of principles behind rules In addition to trying to find a coherent set of principles from clearly solved cases, Dworkin develops fit and justify process in which the ideal model of judge, Hercules, must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principles, constitutional, and statutory provisions as well. In Dworkin’s view, one right theory that in each hard case, one right answer drawn from coherent principles of law exists, is no longer a myth. Also,Posner, as an idealist believing the existence of one right answer in each hard case and as an heir of the American legal realist tradition emphasizing the significance of policies, claims that rules and precedents do not really provide a coherent view to control the judge’s decision, but they are rather a means to satisfy what the judge wishes to do. However, critical jurisprudence doubts the achievement of idealists, one right theory. This doubt, so called no right theory, holds that the logic of idealization fails because there is always another huge, coherent and equally available theory based on exception of one theory. According to critical jurisprudence, this countertheory can “fit and justify” relevant most legal materials as much as a theory can. The critical point is that so long as a theory has to exclude exceptional materials for its coherence, this incompleteness leads to the collapse of a right theory and the feasibility of constructing countertheory which is good enough to fit and justify relevant most legal materials in other way. In addition, a more critical problem is that the possibility of conflict between theories will threaten idealists with breaking of rule of law, the liberal ideal of legality derived from coherent principles,policies and purposes. If law’s own test, which can be equally used to justify each conflicting theory, cannot settle this conflict, the ground for choice of one theory in solving legal matter must be extra-legal or beyond principles. Therefore, the choice from free moral inquiry is inevitably made with no more legal justification, by contingent exercise of power which makes one theory the dominant theory and suppresses countertheory. Ultimately, rule of law is converted into rule of choice. This viewpoint of critical jurisprudence is similar with realist jurisprudence’s indeterminacy thesis that judge’s arbitrary choice from a hunch solves legal cases. However, Conflict Thesis is distinguished from the indeterminacy thesis, because in depicting conflict, Conflict Thesis emphasizes that there is a large, structured conflict between coherent positions. The main point of Structure Thesis is that every field of law is structured by an ideology, a frame of thought that pertains to the entire field, channels thoughts in certain direction, and legitimates the status quo. The method to find an ideology is one of contradiction looking for “foreclosed” ideals within the domain of a law, and looking back at the domain of a law. However, liberal jurisprudence does not admit the premise that ideology constructs law. First of all, formalism asserts that sufficiently developed law is complete enough to work well by itself. However, critical jurisprudence points out that formalists’ short-sighted view overlooks that what makes and governs law is ideology. Basically, only structure can persuade people to accept the legitimacy of the existing hierarchical arrangement. Although idealists also seem to refuse “Structure Thesis” for sustaining rule of law in the name of legality, liberal idealists hide the fact that their law completely stems from one specific non-nomological ideology,liberalism. Critical jurisprudence’s account should read as a criticism for stimulating continuous choices for the ideal of law. It does not mean that we cannot find any answer for legal questions because of imperfection of law. Therefore, we can approach legal ideals by, on one hand, humbly accepting the limitation and changeability of our choices, and by, on the other hand other, affirmatively finding and justifying legal ideals through intense deliberation on other possible answers which are the claims of others alienated from the discourse sphere. In sum, critical jurisprudence’s account is optimism which stresses the possibility of achievement of legal ideal through endless self-examination rather than a paradox of indeterminacy based on skeptical anti-foundationalism. The task of critical judges should be witnessing differences and inventing new ideals which can serve justice to alienated others. Critical judges who experience “aporia” and take anxious responsibility on their choices should perceive courts as a field of politics, in other words, a sphere of the ultimate revelation of every ideals. The practical approach to legal ideals should be expressed as problemitization of status quo law and revelation of foreclosed positions.