Ernest J. Weinrib

Legal Formalism: On the Immanent Rationality of Law

This Article challenges the assumption that law is essentially political. Professor Weinrib presents a noninstrumental conception of the rationality ofjuridical relationships. His analysis draws on the notion of form to distinguish political considerations from the justificatory structures latent in legal thinking. Professor Weinrib concludes by defending the conceptualism of his approach and by contrasting formalism to the currently popular modes of legal scholarship.

Liberty, Community, and Corrective Justice

In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.