What do you think?
Rate this book
The Rise and Fall of Classical Legal Thought
With a comment introduction, this is reprint of the exciting earlier limited edition praised by legal scholars and often cited. It deals with the development and disintegration of a form of American legal thought that emerged between 1880 and 1885 and flourished between 1885 and 1940.
- GenresLaw
316 pages, Paperback
First published January 1, 1975
31 people want to read
Ratings & Reviews
Friends & Following
Create a free account to discover what your friends think of this book!
Community Reviews
Displaying 1 of 1 review
March 2, 2023
This is a must-read for jurists, but it's wrong. The ways it is wrong are important both to understand the possibilities and limits of law/legal reform as well as the capacities or lack thereof for the USA to influence foreign legal systems.
Kennedy's book cannot be taken as a historical piece, it is not an historic account of what actually happened in U.S. courts and legislatures. This lack of historical foundation is the source of its errors.
Basically Kennedy tries to describe a theory of law, and then apply it to an entire system. Very roughly he argues that there was a "classical" era in legal thought, which can be summed up as Savigny. This was the textual interpretative era of law, with rigid binary categories (male/female; citizen/non-citizen). According to Kennedy that intellectual construct was later replaced by an idea of law as fiat, no longer natural inevitably and logically impelled but rather as command. Thereafter, this view of law, lacking foundations in moral or epistemological objectivity collapsed: the fiat command became not legislative command but judicial command.
VERY roughly that is accurate, and I've tried to parse Kennedy's noetic idealism and epistemological and axiological relativism into something reasonably coherent. Ultimately where I disagree with him is exactly on those points: values and truth are objective, not subjective. Ideas are not a priori, they follow from facts. Since most people don't engage philosophically that abstractly we must resort to concrete evidence of claims. While I agree (ROUGHLY) with the transitions Kennedy sketch without adequate foundations in footnotes and bibliography it's nowhere near so simple. But since Kennedy doesn't do the legwork to provide hundreds or even dozens of citations to court cases, laws, or texts which support his views we are forced to grab the few texts he does cite and hope that might lead us somewhere sensible: they will not, because of noetic idealism and relativism.
A better work would be empirically founded. It isn't. The reasons is because of over-valuing elites and their ideas while ignoring facts on the ground. Thus this book as it stands cannot contribute effectively to e.g. the reform of law in China, where Kennedy's self-styled anarcho-marxism might find footing.
I do think this book is worth reading for the questions it presents, but not for the answers it gives. I did enjoy it, it is well written. Three stars is above average. I do recommend you read it: critically.
Kennedy's book cannot be taken as a historical piece, it is not an historic account of what actually happened in U.S. courts and legislatures. This lack of historical foundation is the source of its errors.
Basically Kennedy tries to describe a theory of law, and then apply it to an entire system. Very roughly he argues that there was a "classical" era in legal thought, which can be summed up as Savigny. This was the textual interpretative era of law, with rigid binary categories (male/female; citizen/non-citizen). According to Kennedy that intellectual construct was later replaced by an idea of law as fiat, no longer natural inevitably and logically impelled but rather as command. Thereafter, this view of law, lacking foundations in moral or epistemological objectivity collapsed: the fiat command became not legislative command but judicial command.
VERY roughly that is accurate, and I've tried to parse Kennedy's noetic idealism and epistemological and axiological relativism into something reasonably coherent. Ultimately where I disagree with him is exactly on those points: values and truth are objective, not subjective. Ideas are not a priori, they follow from facts. Since most people don't engage philosophically that abstractly we must resort to concrete evidence of claims. While I agree (ROUGHLY) with the transitions Kennedy sketch without adequate foundations in footnotes and bibliography it's nowhere near so simple. But since Kennedy doesn't do the legwork to provide hundreds or even dozens of citations to court cases, laws, or texts which support his views we are forced to grab the few texts he does cite and hope that might lead us somewhere sensible: they will not, because of noetic idealism and relativism.
A better work would be empirically founded. It isn't. The reasons is because of over-valuing elites and their ideas while ignoring facts on the ground. Thus this book as it stands cannot contribute effectively to e.g. the reform of law in China, where Kennedy's self-styled anarcho-marxism might find footing.
I do think this book is worth reading for the questions it presents, but not for the answers it gives. I did enjoy it, it is well written. Three stars is above average. I do recommend you read it: critically.
Displaying 1 of 1 review