formalism, objectivism, legal history, social tranformation

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This Essay suggests that Unger's attack on formalism and objectivism is not so new. After noting the early contributions of Thomas Hobbes and Jeremy Bentham, it does so by particular reference to the critique of William Sampson (1764-1836), the banished Irish civil rights lawyer and political activist, who led an intellectual charge upon the American common law more than a century and a half ago. It also suggests that by depicting the common law as incompatible with the egalitarian ideal of a democratic republic, Sampson sowed the seeds of a distinct radical tradition of which the critical legal studies movement is but the most recent manifestation. The effects of that radical tradition can be most widely seen in a peculiarly instrumental American view of the common law and in repeated challenges, both popular and academic, to the legitimacy of judicial action.

After fierce attacks upon formalism and objectivism, both Sampson and Unger desperately try to salvage the rule of law. Sampson puts his hope in codification, while Unger resorts to deviationist doctrine. I argue that these constructive efforts, neither of which escapes the brunt of their own critiques of formalism, result from a shared radical dilemma. That dilemma is their common awareness of the dual capacity of law to function not only as a means of social control, but also as a normative force for social transformation. Words kill. The caged violence of law is coveted as much by revolutionaries as by tyrants. Revolutions are the testing ground for law. By isolating the role of violence in the rule of law following the Easter Rising of 1916, this Essay concludes that law is as indispensable to the success of revolutions as it is to their prevention.



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