SSRN PAPER: Mark TUSHNET, Critical Legal Studies and the Rule of Law (forthcoming in Martin LOUGHLIN & Jens MEIERHENRICH (eds.), The Cambridge Companion to the Rule of Law (Cambridge: CUP, 2018)

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Prof. Mark Tushnet (Harvard Law School) published "Critical Legal Studies and the Rule of Law" on SSRN. The text is part of a forthcoming Cambridge Companion to the Rule of Law (eds. Martin Loughlin and Jens Meierhenrich).

Abstract:

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Download paper here.