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Understanding the Recurrent Crisis in Legal Romanticism: Two Criteria for Coherent Doubt

Publication Title

Washington University Jurisprudence Review

Abstract

Broadly skeptical or relativistic criticisms of law and legal discourse, of the kind prevalent in the last generation in American legal scholarship, pose an inherent logic problem: they tend to impugn normativity itself just as much as they do their intended target. What seems amiss is that the act of critique is itself normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is hard to see how the normativity implied in the very act of critique— indeed, in the very act of having purposes at all—is not at odds with the critique itself. As an organizing theme, this Article observes a parallel in the history of a much more influential intellectual movement, the “romantic” phase in nineteenth century literature. While no one seems to have noticed the striking similarities between that movement and our recent generation of legal iconoclasm, the lesson is that the conflict latent in this work is destined to lead only to ever more mystical, seemingly desperate efforts to explain how one can be both a productive legal academic and be a skeptic. As the romantic experience suggests, that cycle sooner or later ends when plausibility is exhausted and the winds of academic fashion turn elsewhere.

But the more central contribution of this Article is a technical one. It will carefully model the internal logic conflict itself, and then devise a means logically to test whether various likely and widely held scholarly purposes could, under this test, resolve the conflict. Ultimately, this Article is something of a confession of one doubter that apparently there is no solution to this conflict.

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