1 Unger argues that in modernity “the most pervasive experience of life becomes that of the diversity of conceptions of good, beauty, and holiness …, (and i)n this manner, each individual's supreme interest in the image of the self becomes the linchpin of social order.” See Roberto Unger, Law in Modern Society: Towmd A Criticism of Social Theory 146 (New York: Free Press, 1976).Google Scholar

2 See Alan Hunt, “Foucault's Expulsion of Law: Toward a Retrieval,” 17 Law & Soc. Inquiry 2 (1992). “By ‘explusion of law,’” Hunt writes, “1 designate his metahistorical thesis that law constituted the primary form of power in the classical or premodern era, for although law lingers on … it is undermined and even supplanted by the discipline(s) and government as the distinctive manifestations of power in modem society.”CrossRefGoogle Scholar

3 See Roberto Unger, Knowledge and Politics (New York: Free Press, 1975).Google Scholar

4 Id. Google Scholar

5 See Edward Said, Orienralism (New York: Vintage, 1979), and id., Culture and Imperialism (New York: Knopf, 1993) (“Said, Culture and I-).Google Scholar

6 See Austin Sarat & Thomas Keams, “A Journey through Forgetting: Toward a Jurisprudence of Violence,” in Austin Sarat & Thomas Keams, eds., The Fate of law, (Ann Arbor: University of Michigan Press, 1991) (“Sarat & Kearns, ‘Journey’”).Google Scholar

7 See Snyder, Francis, “Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal,” 191 Legal Pluralism. 49 (1981); also Bernard Cohen, “Law and the Colonial State in India,” in June Starr & Jane Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology (Ithaca, N.Y.: Cornell University Press, 1989).CrossRefGoogle Scholar

8 See Orlando Patterson, Freedom (New York: Basic Books, 1991) (“Patterson, Freedom”).Google Scholar

9 Tzvetan Todorov, The Conquest of America: The Question of the Other, trans. Richard Howard (New York: Harper & Row, 1985).Google Scholar

10 For a similar effort at opposition see Sarat & Keams, “Journey.”Google Scholar

11 See Hunt, Alan, “The Ideology of law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 11 (1985); also Paul Hirst, On Law and ldeology (London: Macmillan, 1979).CrossRefGoogle Scholar

12 To speak of the rhetorical nature of law, however, suggests two distinct trends in contemporary jurisprudence. The first, associated with the work of scholars such as J. B. White, finds in the law's culture of argument an attractive model of the Aristotelian arts of persuasion. See White, J. B., “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life,” 52 U. Chi. L. Rev. 684 (1985). The second, as articulated by critical legal studies, argues that the law's epistemological difficulties, metaphysical incoherences, and systemic contradictions are masked, and thus managed, by the deployment of a highly involved system of richly overdetermined and volatile signifiers. See Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis (New York: St. Martin's Press, 1987) (“Goodrich, Legal Discourse”), and id., “Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language,” 4 Oxford J. Legal Stud. 88 (1984). Both types of analysis of law as rhetoric are represented in Austin Sarat & Thomas Kearns, eds., The Rhetoric of Law (Ann Arbor: University of Michigan Press, 1994).CrossRefGoogle Scholar

13 Ralph Miliband, Marxism and Politics (New York: Oxford University Press, 1977).Google Scholar

14 Louis Althusser, Lenin and Philosophy (London: New Left Books, 1971); Nicos Pou-lanaes, Political Power and Social Classes (London: New Left Books, 1973).Google Scholar

15 E. P. Thompson, Whigs and Hunters (Harmondsworth: Penguin, 1977).Google Scholar

(De)Mythologizing Jurisprudence 527Google Scholar

16 See Karl Marx & Friedrich Engels, Selected Works 117 (London: Lawrence & Wishart, 1973).Google Scholar

17 See Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay et. al., eds., Albion's Fatal Tree (Harmondsworth: Penguin, 1977). As Hay suggested, “An ideology endures not by being wholly enforced and rigidly defined. Its effectiveness lies first in its very elasticity, the fact that men are not required to make it a credo” (at 55).Google Scholar

18 Hugh Collins, Marxism and Law 71 (New York: Oxford University Press, 1974).Google Scholar

19 For an interesting discussion of this question see id., chap. 3; also Hunt, 19 Law & Soc'y Rev. (cited in note 11).Google Scholar

20 See Jerome Frank, Law and the Modem Mind (New York: Tudor Press, 1930).Google Scholar

21 Id. at 358-60.Google Scholar

22 See Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” 28 Buffalo L. Rev. 205 (1979); see also Balkin, Jack, “Deconstructive Practice and Legal Theory,” 96 Yale L.J. 743 (1987).Google Scholar

23 See Peller, Gary, “The Metaphysics of American Law,” 73 Cal. L. Rev. 1152 (1985).CrossRefGoogle Scholar

24 See Balkin, 96 Yak L.J.; Singer, William Joseph, “The Player and the Cards,” 94 Yale L.J. 997 (1984).CrossRefGoogle Scholar

25 See Goodrich, Legal Discourse (cited in note 12); Kelman, Mark, “Interpretive Construction in the Substantive Criminal Law. 33 Stan. L. Rev. 591 (1981).CrossRefGoogle Scholar

26 New York: Harcourt, Brace, Jovanovich, 1974.Google Scholar

27 See Gordon, Robert, “Critical Legal Histories,” 36 Stan. L. Rev. 57 (1984); also Roberto Unger, Politics (Cambridge: Cambridge University Press, 1987).CrossRefGoogle Scholar

28 For an elaboration of this critique of the concept of ideology, see Colin Sumner, Reading Ideologies:An Inquiry into the Marxist Theory of Ideology and Law 45 (London: Academic Press, 1979) (“Sumner, Reading Ideologies”).Google Scholar

29 For an interesting example of such work, see Timothy Mitchell, Colonizing Egypt (Cambridge: Cambridge University Press, 1988).Google Scholar

30 See Said, Culture and Imperialism (cited in note 5); also Ross, Thomas, “The Rhetorical Tapestry of Race: White Innocence and Black Abstraction,” 32 Wm. B Mary L. Rev. 1 (1990).Google Scholar

31 For a fuller explication and critique, see Frank Munger & Carroll Seron, “Critical Legal Studies vs. Critical Legal Theory: A Comment on Method,” 6 Law & Pol'y 257 (1984).CrossRefGoogle Scholar

32 See Sarat, Austin, “Speaking of Death: Narratives of Violence in Capital Trials,” 27 Law & Soc'y Rev. 19 (1993).CrossRefGoogle Scholar

33 See Christine Harrington & Barbara Yngvesson, “Interpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990). Like Fitzpatrick, Harrington and Yngvesson advocate a broadened consideration of legal practices; as they put it, “[Llaw is found, invented, and made in a variety of locations (mediation sessions, clerk's hearings, welfare hearings, social movements, lawyers' offices, classrooms)” (at 142).CrossRefGoogle Scholar

34 See Kennedy, 28 Buffalo.L Rev. (cited in note 22).Google Scholar

35 See Dalton, Clare, “An Essay in the Deconstruction of Contract Doctrine,” 94 Yale L.J. 1007 (1985).CrossRefGoogle Scholar

36 For an argument that modem law is moving from autonomy to immanence, see Philippe Nonet & Philip Selmick, Law and Society in Transition: Toward Responsive Law (New York: Harper Colophon Books, 1978).Google Scholar

37 See Gabel, Peter & Kennedy, Duncan, “Roll over Beethoven,” 36 Stan. L. Rev. 1 (1984).CrossRefGoogle Scholar

38 See Mircea Eliade, Myth and Reality (New York: Harper Colophon Books, 1975).Google Scholar

39 Id. at 1.Google Scholar

40 See Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989). Chapter 21 in specific makes a similar point about the relationship of force and reason.Google Scholar

41 See Stanley Fish, “The Law Wishes to Have a Formal Existence,” in Austin Sarat & Thomas R. Keams eds., The Fate of Law (Ann Arbor: University of Michigan Press, 1991) (“Fish, ‘The Law Wishes’”). “The law,” Fish argues, “is continuously engaged in effacing the ideological content of its mechanisms so that it can present itself as a ‘discourse which is context independent in its claims to universality and reason’” (at 203). Also Kennedy, Duncan, “The Semiotics of Legal Argument,” 42 Syracuse L. Rev. 75 (1991).Google Scholar

42 Patricia Moynihan makes this point in her own review of The Mythology of Modem Law. See “The De-colonization of Modem Law: Dismantling the Relation between Race and Liberal Law” (unpublished, Royal Melbourne Institute of Technology).Google Scholar

43 See, e.g., Stanley Fish's criticism of Claire Dalton in “Law Wishes” at 194-95.Google Scholar

44 See Sumner, Reading Ideologies (cited in note 28).Google Scholar

45 For a discussion of the way law itself may be impervious to critique, see Fish, Stanley, “Dennis Martinez and the Uses of Theory,” 96 Yale L.J. 1773 (1987). For a critique of Fish's theory, see Lawrence Douglas, “A Fetish for Legitimacy” (unpublished, Amherst College).CrossRefGoogle Scholar

46 Fish, 96 Yale L.J. Google Scholar

47 For a similar claim in another context see Patterson, Freedom (cited in note 8).Google Scholar

48 See Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard University Press, 1992).Google Scholar

49 For a similar reading of Hobbes and Austin, see Sarat & Keams, “Journey” (cited in note 6).Google Scholar

50 See Martin Channock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985); also Comaroff, John, “Images of Empire, Contests of Conscience: Models of Colonial Domination in South Africa,” 16 Am Ethnofogist. 661 (1989).CrossRefGoogle Scholar

51 For a general discussion, see Isaiah Berlin, Four Essays on Libetty (London: Oxford University Press, 1969).Google Scholar

52 The classic statement is found in John Stuart Mill, On Liberty (Indianapolis: Hackett Publishing, 1978). See also Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1972).Google Scholar

53 See also Austin Sarat & Roger Ekrkowitz, “Disorderly Differences: Recognition and Accommodation in American Law,” 5 Yale J.L. & Humanities (1994, forthcoming).Google Scholar

54 See Thomas Dumm, Democracy and Punishment: Disciplinary Origins of the United States (Madison: University of Wisconsin Press, 1987).Google Scholar

55 See William Connolly, IdentityfDrfference: Democratic Negotiations of Political Paradox (Ithaca, N.Y.: Comell University Press, 1991); Judith Butler, “Endangered/Endangering: Schematic Racism and White Paranoia,” m Robert Gooding-Williams ed., Reading Rodney King/Reading Urban Uprising (New York: Routledge, 1993).Google Scholar

56 More distressingly, some of his most provocative claims, such as the idea that the law helped in the construction of “constant apprehension,” are offered without any supporting evidence. Indeed, it is far from clear what would even count as proof. Though Fitzpatrick attempts to expand critical legal studies' fixation on juridical and jurisprudential texts, he relies almost exclusively on such works to support his claims. Though one could argue that the problem of verifiability casts its pall over many of the most interesting claims associated with social theory, in important respects, the problems are peculiar to Fitzpatrick's project, for, as we have observed above, his claims appear at times less interpretive than they do behaviorist.Google Scholar

57 See Richard Abel, The Politics of Informal Justice (New York; Academic Press, 1982).Google Scholar

58 See Fish, “Law Wishes” (cited in note 41).Google Scholar

59 Fitzpatrick's work concludes with a critique of Hart which is unremarkable save for its implicit assumption that the myths of liberal law are available for critique and thus praxis. His discussion of administration and popular justice, however, belies this claim. There law is presented as myth, but a myth that resists penetration, deconstruction, or critique.Google Scholar

60 Fish, “Law Wishes” (cited in note 41).Google Scholar