Critical Theory

Theoretical Background

The term critical theory is derived from the Greek kri-tikos (decide) and theoria (behold). Critical theory as applied to the law is most closely associated with Franz Neumann (1900–1954) and Otto Kirchheimer (1905–1965) of the Frankfurt School and Jërgen Habermas (1929-), as well as Max Weber's (1864–1920) social theory as valuationally oriented, Antonio Gramsci's (1891–1937) concept of hegemony, Michel Foucault's (1926–1984) historicism, and Jacques Derrida's (1930–2004) deconstructionism. All of these are legal theories that challenge accepted norms and standards believed to perpetuate hierarchical structures of domination in modern society.

Critical theory has been influential in legal theory on both sides of the Atlantic. In Germany, Neumann and Kirchheimer advanced a critical history of legal transformation supporting the welfare state, liberalism, and democratic institutions, particularly a “social rule of law” associated with the Weimar constitution, arguing that its failure was due to the entrenchment of capitalist ideology. Kirchheimer proposed a parliamentary approach to articulating the interests of diverse social groups and developed a postwar legal analysis of the depoliticization of the public sphere as it was increasingly replaced by consumerism. Neumann presented a social democratic interpretation of Max Weber's (1864–1920) theory of modern law, a critique of liberalism, and the limits of legalistic thinking under certain political and economic conditions.

More recently, Habermas argued for a theory of rights, rooted in a Kantian approach to natural law that attempts to ground rights on moral principle in contrast to the dominant Anglo-Saxon tradition of legal positivism, realism, and pragmatism that rests upon the legitimacy of political authority. Drawing on Kantian constructivism and an interpretive social-scientific research approach that introduces a provisional character to normative principles, Habermas promotes a democratic communicative process in deriving a system of rights aimed at emancipation, what he calls “the logical genesis of rights,” which requires people to see one another as political equals, as “free and equal consociates under law.”

...