Back in Style

Abstract

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.

Keywords: Legal Theory, Legal History, Structuralism