The Common Law and Critical Theory

Abstract

Because common-law doctrines have long served as targets for critical theorists, it would be easy to see the common law and critical theory as essentially antagonistic with each other. But that would be a mistake. In fact, both critical theory and the common law—or, at least, one interpretation of the common law—license a quite similar, and similarly holistic, form of reasoning. Specifically, they both draw normative inferences from explanatory claims and vice versa. This symposium essay uses a case study to illustrate this quite general point. Catharine MacKinnon’s revolutionary argument that sexual harassment constitutes sex discrimination under the Civil Rights Act of 1964 is a vivid example not only of critical theory but also of an holistic interpretation of the common law. Because common-law reasoning and critical theory are analytically compatible in this way, I conclude by suggesting that each tradition has something to learn from the other.

Keywords: Catharine MacKinnon, Ronald Dworkin, Richard Posner, Sexual Harassment, Feminism, Critical Race Theory