William W. Fisher III 38 influenced profoundly the scholarship of a substantial group of legal historians. The seminal essays in this regard were Duncan Kennedy’s monumental manuscript, “The Rise and Fall of Classical Legal Thought,” and a loosely related 1979 article entitled, “The Structure of Blackstone’s Commentaries.”^^ Kennedy described the method underlying his work as “Structuralist or phenomenological, or neo-Marxist, or all three together.Its central premise was that a principal purpose of legal thought is “to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world” - in other words, to disguise or “mediate” a “fundamental contradiction” that afflicts American culture as a whole and taints the lives of all of its members. Kennedy described that contradiction as follows: Most participants in American legal culture believe that the goal of individual freedomis at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it. Others (family, friends, bureaucrats, cultural figures, the state) are necessary if we are to become persons at all ... But at the same time that it forms and protects us, the universe of others ... threatens us with annihilation and urges upon us forms of fusion that are quite plainly bad rather than good ... The kicker is that the abolition of these illegitimate structures, the fashioning of an unalienated collective existence, appears to imply such a massive increase of collective control over our lives that it would defeat its purpose.■*' The systems developed by Blackstone for classifying and analyzing legal rules, Kennedy argued, functioned effectively to reduce the salience of this contradiction for eighteenth-century Englishmen and Americans. Subsequent generations of legal thinkers criticized some of Blackstone’s strategies, while preserving and generalizing others. The net effect, over the course of a century and a half, was the abstraction and refinement of a distinctly “liberal” style of legal thought —so called because it posits subdivision of the social universe into two radically opposed spheres: “One of these is ‘civil society,’ a realm of free interaction between private individuals who are unthreatening to one another because the other entity, ‘the state,’ forces them to respect one another’s rights.Once perfected, however, this liberal style was short lived; in the early twentieth century, it succumbed to the same process of corrosive criticismthat had earlier purified it and cleared the landscape of its rivals. In his still unpublished manuscript, Kennedy used this grand reck to make sense of the histories of several doctrinal fields, including constitutional law, the lawof federalism, contracts, and torts. In the 1980s, an important cohort of Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buffalo Laiv Revicn' 28 (1979): 205. ■»0 Ibid., 209 •*' Ibid., 211-12. Ibid., 217.
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