The Crisis of American Legal Thought and the Transformation of Sovereignty

Abstract

In the late 20th Century U.S. legal theory splintered due to a crisis of interpretation into competing antithetical views, often defined around personal identity: on the one side, critical legal studies, around which or out of which were marshalled critical race theory, lat/crit, feminist legal theory and even law and literature as opposing economic analyses of law (law and economics). This conflict was not resolvable by recourse to European Kelsenian legal theory due to the principle of value neutrality found in the work of Weber and influencing Kelsen and (ironically) Duncan Kennedy. This paper outlines the roots of that conflict and explains why Kelsen could provide no solution. 16 pages, 11 annotations. A theoretical paradigm shift is also necessary in order to address a second contemporary theoretical crisis, the crisis of sovereignty.