The Antinomy of Public Purposes and Private Rights in the American Constitutional Tradition, or Why Communitarianism Is Not Necessarily Exogenous to Liberal Constitutionalism
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Medientyp:
E-Artikel
Titel:
The Antinomy of Public Purposes and Private Rights in the American Constitutional Tradition, or Why Communitarianism Is Not Necessarily Exogenous to Liberal Constitutionalism
Beteiligte:
Gillman, Howard
Erschienen:
Cambridge University Press (CUP), 1996
Erschienen in:
Law & Social Inquiry, 21 (1996) 1, Seite 67-77
Beschreibung:
Not long ago it was a central feature of critical scholarship that “liberal legalism” was beset by a set of antinomies that, when exposed, never failed to undermine overblown claims of law's majestic neutrality. In project after project, scholars demonstrated that beneath the smooth veneer of interlocking principles were conflicting doctrines that could be drawn upon creatively as judges saw fit. At the same time that contract law insists that the will of parties shall not be second-guessed, it accommodates the possibility that the parties made some mistakes or that agreed-upon terms might be commercially impracticable or even unconscionable. While the criminal law generally assumes that human behavior is intentional, it also relies extensively on deterministic discourses in doctrines such as duress, necessity, and provocation. Cutting across particular lines of doctrine were arguments about how the form of law under liberalism vacillated between a reliance on fixed rules and a reliance on flexible standards and how it also embraced simultaneously a formalist logic and a consequentialist one.