Critical Legal Studies and the Rule of Law

Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), Forthcoming

Harvard Public Law Working Paper No. 18-14

13 Pages Posted: 13 Mar 2018 Last revised: 6 Jun 2018

Mark Tushnet

Harvard Law School

Date Written: March 7, 2018

Abstract

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Keywords: Rule of Law, Critical Legal Studies, American Legal Realism, Legal Process

Suggested Citation

Tushnet, Mark V., Critical Legal Studies and the Rule of Law (March 7, 2018). Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), Forthcoming; Harvard Public Law Working Paper No. 18-14. Available at SSRN: https://ssrn.com/abstract=3135903

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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