A Critique of Duncan Kennedy’s Theory of Argumentation

Abstract

Briefly presents a synopsis and friendly critique of Duncan Kennedy's theory of death of reason and of evolution of U.S. legal theory through four phases. Kennedy calls these four phases (1) pre-classical (natural law), (2) classical legal thought (the conceptual jurisprudence - Begriffsjurisprudenz - of rising positivism), (3) the social (a shift within positivism to legal process interest balancing - Interessenjurisprudenz - and critical legal studies - freie Rechtslehre / kritische Justiz), and (4) contemporary legal thought. This synopsis and critique aims not only to improve Kennedy's theory but also to highlight a broader general critique of U.S. legal theory as individualist, atomist, relativist and even, at times, dualist. Kennedy's thought contrasts favorably against all those dominant tendencies in U.S. legal thought which is why his work makes an excellent foil. With minor terminological reforms his historical account (apparently vectored from German law via Morton Horwitz and emigre scholars) can be transformed from a phenomenological purely formal construct and shifted readily into an organon for forming contemporary legal thought. The death of reason narrative is less tenable but, likewise, can be qualified. Kennedy's organon will in turn serve as an effective tool to help shape contemporary legal thought's reaction to replacement of natural rights theory with pure positivism and consequent splintering of positivism. These transformations will form post-positivist legal thought and will be subject of future essays.