030107 KU An Introduction to Legal Theory (2023S)

This class begins with a claim. It says that legal theory--as a genre--is intimately tied to the crisis of legal knowledge that arose when nineteenth "century legal science" came under attack on both sides of the Atlantic. This moment of attack is epitomized by the ascendency of the Freirechtsbewegung in Germany and the Legal Realist revolution in America. To this day, the impact of the latter on the intellectual standing of "legal science" has been devastating.
One school of legal thought attempted to accommodate some of the challenges posed by both movements while also restoring the integrity of legal knowledge. This school is legal positivism. Not by accident, in the narrative underlying this class, positivism is cast in the role of the hero of modern legal theory. It defends the intellectual respectability of legal analysis proper vis-à-vis more open-ended modes of resolving cases with resort to moral reasoning or policy analysis.
Not surprisingly, the focus of modern legal theory has frequently rested on the question whether legal positivism is defensible. For if legal positivism is sound, legal knowledge is possible.
But what if legal positivism is doomed to failure?
The class will study samples of legal theory, thereby drawing, among other things, on American legal realism, Kelsenian and contemporary legal positivism, Ronald Dworkin, Critical Legal Studies and Social Systems' Theory. The class offers a thoroughly transatlantic introduction to legal theory.