Legal Modernism

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University of Michigan Press, 1997 M09 26 - 420 pages
Modernism in legal theory is no different from modernism in the arts: both respond to a cultural crisis, a sense that institutions and traditions have lost their validity. Some doubt the importance of the rule of law, others question the objectivity of legal reasoning. We have lost confidence in the justice of our legal institutions, and even in our very capacity to identify justice.
Legal philosopher David Luban argues that we cannot escape the modernist predicament. Accusing contemporary legal theorists of evading rather than confronting the challenge of modernity, he offers important and original objections to pragmatism, traditionalism, and nihilism. He argues that only by weaving together the broken narrative and forgotten voices of history's victims can we come to appreciate the nature of justice in modern society. Calling a trial the embodiment of the law's self-criticism, Luban demonstrates the centrality of narrative by analyzing the trial of Martin Luther King, the Nuremberg trials, and trial scenes in Homer, Hesiod, and Aeschylus. With these examples, Luban explores several of the tensions that motivate much more contemporary legal theory: order versus justice, obedience versus resistance, statism versus communitarianism.
". . . an illuminating account of how contemporary legal theory can be understood as an expression of 'the modernist predicament' by exploring the analogy between modernism in the arts and modernism in law, politics, and philosophy. . . . a valuable critical discussion of modern legal theory." --Choice
David Luban is Morton and Sophia Macht Professor of Law at the University of Maryland and Research Scholar at the Institute for Philosophy and Public Policy. His other books include Lawyers and Justice: An Ethical Study.

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Contents

We Copernicans
1
Theories
49
Legal Modernism
51
Legal Traditionalism
93
Doubts about the New Pragmatism
125
Hannah Arendt and the Primacy of Narrative
179
Trials
207
Difference Made Legal The Court and Dr King
209
Some Greek Trials
283
The Legacies of Nuremberg
335
Concluding Reflections
379
Copyright

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