The New Realism and Lawlessness in Kaleidoscope
When Harold Laski writes on the topic of Mr. Justice Holmes he draws upon nearly a lifetime of correspondence between them, a correspondence in which they critically shared and compared some of the leading and the emergent ideas of their time, including the theory of signs and the pragmatic philosophy of Charles Sanders Peirce. It is from the writings of the patriarchs of pragmatism -- Peirce, James, Dewey -- that Holmes drew his major insights for the movement in Legal Realism of which he is the acclaimed founder, I claim. The Legal Realism which directly followed Holmes, mainly through the work of Garland, Frank, Llewellyn and others of that period, was not a unified movement; rather, it shared certain tenets which, in spite of the diversity of views among its spokesmen, can be thought of as a cohesive “school” or movement in American law.
Critical Criminal Law
To come to criminal law in a spirit of criticism is to find a subject full of paradoxes. It is an area where there is both an abundance of criticism and yet where critique has hardly started. It is the branch of law where most social studies have been done of the 'law in action' and where the gulf between ideals of equality and the reality of differentiation has been shown to be glaring and recurrent, and where official arbitrariness and repression are most obvious. Yet in Britain the law schools do not even have a 'law in context' textbook to relate legal doctrine to studies of criminal justice and criminology. The standard textbooks hold their own.1 On the other hand, even the mainstream commentators on the criminal law are highly critical of the development of this branch of law, stigmatising it as indefensible and incoherent, challenging its most basic conceptual categories and backing a codification project designed to rein in the judges (when not conducting almost continual guerrilla warfare). There are some signs of new approaches to the study and teaching of criminal law but these lie mainly in the area of philosophical reflection on fundamental aspects of criminal doctrine and the justification of punishment. It is uncertain whether any new explicitly critical text would draw more on the heritage of contextual studies or the more recent unorthodox form of legal scholarship associated with the U.S.A. critical legal studies movement. Even in the U.S.A., however, criminal law seems to have been strangely neglected by critical scholars. Thus the special issue on critical legal studies put out by the Stanford Law Review contained nothing on criminal law but a bitter attack on a paper by Mark Kelman, a paper which represents one of the few explicitly critical discussions of substantive criminal law.2 Likewise, the Kairys volume, The Politics ofLaw, contained three articles on criminal law (including one by Kelman) but these dealt only with the causes of crime, crimes of the powerful and police deviance.3 Yet critical discussion of substantive legal doctrine in this area is all the more important because of recent trends in which those on the left have emphasised the importance of taking crime seriously as a blight on the lives of those living in working-class neighbourhoods. This must surely also entail seeing how far the concepts and categories of the criminal law can
Is there a Crisis in Law and Legal Ideology
the portrayal by each of these writers of the implications of the growth of state intervention into and management of increasing areas of social and economic life, and this agreement is the more remarkable because Tay and Kamenka explicitly reject a Marxist approach to these matters whereas Habermas claims to be a Marxist theorist. Tay and Kamenka are rather better at providing an account of the alleged crisis in law than they are at explaining how this is related to changes in society: it is for this reason that it becomes important to look at ideas such as those of Habermas concerning the contemporary crisis in society. In examining both these arguments I shall be particularly concerned with the adequacy with which they deal with the three issues mentioned previously. I shall also illustrate how their theoretical defects are not merely a matter of academic significance but help to explain why their accounts failed to allow for a number of recent changes in law in directions contrary to those predicted.