What's left of rights: Engaging legal skepticism and critique.

摘要

Skepticism about legal justification is a dominant mode of thinking about law in contemporary legal theory. Skeptical moves are particularly evident in Critical Legal Studies (CLS) which has launched a sustained attack on the fundamental premises of liberal legalism in Anglo-American law. A major reason held to contribute to the deficiency of law is that liberal rights talk cannot be justified. Rather than being neutral and impartial, rights are viewed as politically-charged and ideological, and emanating from a philosophical tradition fraught with indeterminacy and contradiction. This is then seen to vindicate the claim that law generally, is contingent, arbitrary and ultimately lacks legitimacy.;The cohering theme of this work concerns the problem of legal justification. For instance, under the theory of natural law, law is justified by reference to its ability to mirror an objective, categorical, "natural" order of morality. In liberal legalism, legal justification obtains through the theory of rule of law. Rule of law contributes the substantive and procedural norms which confer legitimacy upon legal practice, thereby generating deontological authority for law and the legal rights and duties which subjects are obliged to obey.;But liberal legalism, and the relation of the legal and the moral which attends liberal rule of law, also prompts a certain skepticism about law and legal justification. Relying largely upon claims about the indeterminacy of rule of law, CLS is the bearer of a radical skeptical thesis and its conclusions are that legal justification fails. The argument here is that while the radical or hard skepticism of CLS is not correct, liberal legalism does provoke a soft skepticism. This more refined version of legal indeterminacy presents a better understanding of law under liberal legalism and also rescues legal justification and objectivity from the challenge of radical skepticism.