Critical Legal Thought: The Case for a Jurisprudence of Distribution
University of Colorado Law Review, Vol. 92, No. 1043, 2021
Boston College Law School Legal Studies Research Paper No. 567
15 Pages Posted: 13 Jun 2021 Last revised: 16 Nov 2021
Date Written: June 7, 2021
Written for The Stakes for Critical Legal Theory symposium, this is an essay on the jurisprudence of distribution. The analytical framework for concentrative and decentrative distributions is here placed in the context of a struggle for the standards critical legal thought must meet.
The essay starts by recognizing that critique is the norm of legal scholarship. Indeed, the typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or more robust normative criteria, and proposes some minor or moderate improvement to it. This standard model of legal critique and improvement is politically stabilizing and practically effective.
However, critical legal thought ought to mean something else than the standard model of critique. Furthermore, critical legal thought does not earn its title just by genealogizing law or by being contrarian, rebellious, performative, experimentalist, decisionist, or “woke.” Critical legal thought faces higher and more demanding theoretical requirements when contrasted not only to the standard model of legal critique but also to other varieties of global critiques of law. This essay identifies three such requirements, concluding that critical legal thought consists in rationalist, grand, and normative theorizing. There is no place outside one of these big theories. There is only knowing or not knowing that you are inside one of them.
Keywords: jurisprudence of distribution, critical legal thought, equality, discrimination, critical legal theory, concentrative and decentrative distribution
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