Of Origin: Toward a History of Contemporary Legal Thought
Forthcoming in Justin Desautels-Stein and Christopher Tomlins (editors), In Search of Contemporary Legal Thought
31 Pages Posted: 9 Apr 2016
Date Written: April 2, 2016
A conventional conception of “contemporary legal thought” would have it stand for the universe of expressions of legal consciousness, plural and contradictory, that abound in our present and compete to determine the trajectory of the future. Contemporary legal thought might, however, stand for something more – a conceptual vocabulary, organizational scheme, or mode of reasoning and arguing that the preponderance of current expressions of legal consciousness share. In the first case, “contemporary” carries no significance other than “current,” and contemporary legal thought stands for nothing more than the aggregation of legal discourses that are “contemporaneous” with each other – existing at the same time. In the second, it becomes (in Duncan Kennedy’s semiotic formulation) a langue – a structure of categories, concepts, conventionally understood procedures and typical legal arguments – within which the present’s plural parole expressions of legal consciousness occur. My objective in this essay is to determine whether or not, in order to write a history of “contemporary legal thought,” it is sensible, or even possible, to posit its existence in the second sense; and, if not, what (if any) historical meaning lies in the aggregate of the first sense. I undertake this exercise not by surveying the field of current legal discourse in search of commonalities that might be restated as structural generalizations. Instead I consider whether something we can call “contemporary legal thought” can be conceived of as such by resorting to a historical concept of origin.
Keywords: Contemporary Legal Thought, Kennedy, Foucault, Neoliberalism, Benjamin
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