The Study On Duncan Kennedy’s Legal Thoughts

By virtue of critique of orthodox ideals of the Rule of Law,The Critical LegalStudies movement，which rose in the second half of the20th century, have had acertain influence in the United States,even in the world.a lot of scholars who Chinesestudents of law school known as Unger, Horwitz and so on involved in themovement.This paper mainly focus on one of the main characters-DuncanKennedy.As a leader,Kennedy is known as the Pope of The Critical Legal Studiesmovement.The ideas he proposed and The study methods he used have a profoundimpact on the critical legal researchers after him.In this paper, on the basis of theKennedy’s point of law and judicial action and different positions of other scholars,Ireach my own conclusion.The first part introduces the background of Kennedy ‘s legal thought.I writeunder the social and ideological background and point out The Black Civil RightsMovement, The Vietnam War, Legal Realism, The Anti-rationalism and The Theoryof Neo-Marxist critique,those which have a impact on Kennedy’s legal thought.In thesecond part of this article, I describe Kennedy’s critique of the law and judges.First,Kennedy criticized the law as that, on the one hand,rules of law are not in harmonywith each other from internal view, which is full of contradictions and conflicts; onthe other hand, because policy arguments have become common methods of judicialreasoning,the modern laws have a character of anti-formalism.Second,Kennedycritique orthodox theory of Rule of Law that sees the judge as objective and neutraland points out the character that the judges are guiding by ideology and nointegrity.Under the command of these two themes, I present the connotation andcharacteristics of ideology that kennedy delivered.In the third part, I discussKennedy’s contributions and shortcomings.From the side of contribution, I point outthe positivity of kennedy that the character of ideological rhetoric of legal reasoning,the possibility that justice exists in consensus and the Rule of Law is a guidelinerather than merely a constraint.From the side of defect, I point out the shortcomingthat he did not fully understand the conflict of values, damaged The separation ofpowers principles and underestimated determinacy of legal proceedings.In the fourthpart, by citing the writings of other writers, I disreibe positions which are differentfrom Kennedy’s standpiont that the objectivity of the law is possible, at the same time, the law can not only be independent of politics, but also constraint and normalizepolitical actions.Finally,I insist the standpoint relying on existing laws rather than political ethicsto give justice. I am sure that, depending on the rules of law and the existinginstitutional arrangements,we can achieve more fairness and justice,And that onlyrelying on the existing arrangements of the legal system can we achieve more fairnessand justice.