Thursday, December 15, 2005
Catholic Legal Theory and Deconstruction
Jack Balkin has posted his article, "Deconstruction's Legal Career," in which he attempts to set the record straight on what legal deconstruction is and is not:
First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valance as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate.
I've never thought of our project as deconstructionist, but as described, isn't this what we're trying to do in exploring points of critical engagement between American law and the moral anthropology embodied in the Catholic intellectual tradition?
Rob
https://mirrorofjustice.blogs.com/mirrorofjustice/2005/12/catholic_legal_.html