Neoliberalism and the new international economic order: A history of “contemporary legal thought”
Duncan Kennedy’s “Three Globalizations of Law and Legal Thought: 1850–2000” (2006) is well known for its engaging macro-historical typology of Euro-American law. A staple of the kind of legal structuralism that examines (partial) indeterminacy in interpretation and adjudication against the background of law’s generative “grammar” (Desautels-Stein 2015: 56), Kennedy’s essay is a decidedly taxonomic enterprise, relying on a relatively small set of analytical tools to map a complex series of doctrinal and theoretical developments across a range of different periods and jurisdictions. For Kennedy, the history of Euro-American law’s consolidation into a more or less universal idiom, a common point of reference for jurists throughout the extra-European world, is best understood as having proceeded in three stages, which he terms “classical legal thought,” “the social,” and “contemporary legal consciousness,” respectively. A product mainly of the German legal academy, “classical legal thought,” on Kennedy’s rendition, is distinguished chiefly by a desire to draw and maintain a series of sharp distinctions: public and private, status and contract, market and household, domestic and international, and, perhaps most fundamentally, the legal and the extralegal. The primary juridical manifestation of a late nineteenth-century laissez-faire sensibility, “classical legal thought” insists on enforceable contracts, stresses the need for clear proprietary title, fetishizes notions of individual will and consent, and generally prioritizes private over public international law. Law, on this account, is an apolitical and essentially deductive science that generates largely predictable results and congeals (at least aspirationally) in the form of an internally coherent and immanently rational system. For its part, “the social,” originating in a wide-ranging critique of its predecessor, is marked by a commitment to the view that law is a purposive enterprise, both responsive to and responsible for “society,” this being an ill-defined concept typically affiliated with broadly solidaristic notions of “organic” interdependence. Viewed from the standpoint of such sociological jurisprudence, which achieves its fullest form in the interwar period and strives to remain aloof from nineteenth-century liberalism and Marxism alike, “classical legal thought” is excessively individualistic and unsustainably formalistic.
Özsu, U. (2017). Neoliberalism and the new international economic order: A history of “contemporary legal thought”. In Searching for Contemporary Legal Thought (pp. 330–347). doi:10.1017/9781316584361.018