Rutherglen on Reconstruction in Legal Theory

George A. Rutherglen, University of Virginia School of Law, has published Reconstruction in Legal Theory as Virginia Public Law and Legal Theory Research Paper No. 2019-20. Here is the abstract. Reconstruction and the Civil Rights Era did not make a significant appearance in legal theory until the eve of Brown v. Board of Education. The reconstruction accomplished by legal theory was internal to legal theory itself, as it was in philosophy as a whole. Methods of judicial review and processes of legal reasoning came in for criticism and revision, just as the aims and methods of philosophy did so. Legal theory took a turn towards legal positivism and legal realism, neither of which had much patience with the normative claims underlying civil rights. Nor did philosophy as it fell under the influence of logical positivism and its skepticism of normative claims generally. This essay describes this historical pattern, in which the neglect of civil rights in legal theory paralleled…

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