Robert C. L. Moffat

Stephen M. Griffin

The past two decades have seen an outpouring of work in legal theory that is self-consciously critical of aspects of American law and the institutions of the liberal state. In this lively volume, eminent scholars in philosophy, law, and political science respond to this recent scholarship by exploring what constitutes a "radical" critique of the law, examining such theories as critical legal studies, feminist theory and theories of "difference," and critical race theory. The authors consider whether the critiques advanced in recent legal theory can truly be called radical and what form a radical critique of American law should take. Writing at the cutting edge of the critique of critical legal theory, they offer insights first on critical legal scholarship, then on feminist political and legal theory. A third group of contributions questions the radicalness of these approaches in light of their failure to challenge fundamental aspects of liberalism, while a final section focuses on current issues of legal reform through critical views on criminal punishment, including observations on rape and hate speech. Each major essay describes the underlying principles in the development of a radical legal theory and addresses unresolved questions relating to it, while accompanying commentaries present conflicting views. The resulting dialogue explores wide-ranging issues like equity, value relativism, adversarial and empathic legal advocacy, communitarianism and the social contract, impartiality and contingency, "natural" law, and corrective justice. A common thread for many of the articles is a focus on the social dimension of society and law, which finds the individualism of prevailing liberal theories too limiting. Radical Critiques of the Law is particularly unique in presenting critical and feminist approaches in one volume-along with skeptical commentary about just how radical some critiques really are. Proposing alternative critiques that embody considerably greater promise of being truly radical, it offers provocative reading for both philosophers and legal scholars by showing that many claims to radicalism are highly problematic at best.

Radical Critiques of the Law

Variously and roundly perceived as gridlocked, incompetent, irresponsible, and corrupt, American government commands less respect and trust today than perhaps at any time in the nation's history. But the dysfunction in government that we like so little, along with the policy disasters it engenders, is in fact a product of that deep and persistent distrust, Stephen M. Griffin contends in Broken Trust, an accessible work of constitutional theory and history with profound implications for our troubled political system. Undertaken with a deep concern about the way our government is performing, Broken Trust makes use of the debate over dysfunctional government to uncover significant flaws in the conventional wisdom as to how the Constitution works. Indeed, although Americans strongly believe that our government is dysfunctional, they are just as firmly convinced that the Constitution still works well. Griffin questions this conviction by examining how recent policy disasters—such as the 9/11 terrorist attacks, the response to Hurricane Katrina, and the 2008 financial crisis—are linked to our constitutional system. This leads him to pose the question of whether the government institutions we have inherited from the eighteenth century are poor fits for contemporary times. Griffin argues that understanding the decline of trust in government requires investigating the historical circumstances of the last several decades as well as the constitutional experience of the states. In particular, he examines "hybrid democracy," the form of constitutionalism prevailing in California and other western states that combines Madisonian-style representative government with direct democracy. Hybrid democracy offers valuable lessons relevant to our contemporary difficulties with dysfunctional government at the national level. These lessons underpin the agenda for reform that Griffin then proposes, emphasizing democratic innovations aimed at producing both more effective government and greater trust in our political institutions. Building on a better understanding of the sources and consequences of government dysfunction, his book holds genuine hope, as well as practical possibilities, for the repair of our broken political and constitutional system.

Stephen M. Griffin

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