The Identity of Moral and Legal Criticism: A Farewell

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SSRN Cleveland-Marshall Legal Studies Research Paper


legal philosophy, philosophy, jurisprudence, skepticism, postmodernism, modernism, nihilism, solipsism, self-doubt, Schlag, Pyrrho, pyrrhonism, despair, existentialism


Criticism of law and legal discourse as such has been part of an important vein of legal philosophy of the past thirty years or so. However, by its nature it contains an internal logic problem. Namely, broadly skeptical critiques, whatever their focus, tend to impugn normativity just as much as they do their intended target. What seems amiss is that the very act of critique itself seems normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is very hard to see how the normativity implied in the very act of critique is not at odds with the critique itself. This paper is in essence a confession that there is apparently no way to resolve this conflict. Rather than attempt another in the now long series of efforts to explain this conflict away, the paper provides something that hopefully will be more valuable: a detailed statement of the conflict and an analysis of every possible solution that has been offered, as well as several original solutions. It then suggests that in fact each of these is ultimately unsatisfying. Thus, in some sense, the paper is an open letter - perhaps a call to colloquium. But, for me at least, and at least for now, it is also a farewell.


No. 05-115