1 I have been, and still am, tempted by this view. See Shiner, R. A., Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) at 5, 9, 321CrossRefGoogle Scholar n. 9. The present essay may be regarded as an attempt to investigate the shape, at least, of other possibilities.

2. Cf. Twining, W., “Academic Law and Legal Philosophy: The Significance of Herbert Hart” (1979) 95 L.Q. Rev. 557Google Scholar.

3. Cf. Hacker, P. M. S. & Raz, J., eds., Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Clarendon Press, 1977)Google Scholar.

4. Hacker's phrase. See Hacker and Raz, ibid. at v.

5. Twining, supra note 2 at 575.

6. Ibid.

7. It may seem self-serving to say so, but I think that Shiner (1992), despite what I said in note 1 above, can be taken as not only treating this question, but answering it affirmatively. I will return to this issue briefly below.

8. It is not clear whether, in a society without material inequality, there would be no social reflection at the level of ideology, or whether there would be but it would simply not count as ideology.

9. There is one mistake about Hart—the ultimate rule of recognition for Hart is in fact “a complex, but normally concordant, practice of the courts, officials and private persons in identifying the law” (emphasis added), not, as Kerruish avers, of officials alone. See Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961) at 107Google Scholar. But the mistake need not matter—the citizens who support the ultimate rule of recognition as understood by Hart can be readily construed as victims of/sufferers from rights fetishism.

10. P. P. Hacker, “Hart's Philosophy of Law” in Hacker & Raz, supra note 3 at 8 and MacCormick, D. N., H. L. A. Hart (Stanford: Stanford University Press, 1981) at 29Google Scholar.

11. I am sympathetic to these two points, because I make the same claims myself in Shiner, supra note 1. See c. 13, sec. 2 for the first, and sec. 2.3, 5 for the latter.

12. Is that a reason for or an exemplification of the claim about distortion? It is not clear.

13. In the section entitled “Methodological Issues” below, I discuss issues of theoretical methodology as raised by Kerruish's critique of Jurisprudence. The term “explanation” is a contested term in this context. Theories of different kinds give explanations of different kinds. It is more important to look fairly at the achievements of different kinds of theory than to pre-empt the term “explanation” for one kind of theory.

14. Nor, of course, simply analytical and descriptive.

15. Schauer, F., “The Jurisprudence of Reasons” (1987) 87 Michigan L. Rev. 847CrossRefGoogle Scholar (emphasis in original). For my own discussion, see Shiner, supra note 1 at c. 2, 5, 7.

16. Cf. Dworkin, R., Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) at 105Google Scholar.

17. Schauer, F., Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life (Oxford: Clarendon Press, 1991)Google Scholar.

18. Cf. Shiner, R. A., “Rules of Power and the Power of Rules” (1993) 6:3Ratio JurisCrossRefGoogle Scholar.

19. Kerruish herself mentions briefly two well-known instances: Tushnet, M., “An Essay on Rights” (1984) 62 Texas L. Rev. at 1363–1403Google Scholar; and Olsen, F., “Statutory Rape: A Feminist Critique of Rights Analysis” (1984) 63 Texas L. Rev. at 387–432Google Scholar.

20. Cf. Tushnet, ibid. at 1363, 1371-75, 1382; Olsen, ibid. at 401, 412.

21. Cf. Glasbeek, H. J., “A No-Frills Look at the Charter of Rights and Freedoms, or How Politicians and Lawyers Hide Reality” (1989) 9 Windsor Y.B. Access Just. 293Google Scholar; Glassbeek, H. J., “Some Strategies for an Unlikely Task: The Progressive Use of Law” (1989) 21 Ottawa L. Rev.Google Scholar; Mandel, M., The Charter of Rights and Legalization of Politics in (Toronto: Wall & Thompson, 1989)Google Scholar; Fudge, J., ‘The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles” (1987) 25 Osgoode Hall L. J. 485Google Scholar; Fudge, J., ‘The Effect of Entrenching a Bill of Rights upon Political Discourse: Feminist Demands and Sexual Violence in Canada’ (1989) 17 Int. J. of the Sociology of Law 445Google Scholar; Fudge, J., “Evaluating Rights Litigation as a Form of Transformative Feminist Politics” (1992) 7:1C.J.L.S. 153CrossRefGoogle Scholar; Turpel, M. E., “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” in Devlin, R., ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991)Google Scholar. These writings exemplify, but do not wholly constitute, the best work. The literature is extensive.

22. Glasbeek, “A No-Frills Look,” ibid.; Fudge, “The Public/Private Distinction” and ‘The Effect of Entrenching a Bill of Rights,” ibid.

23. Tushnet, supra note 19.

24. Olsen, supra note 19 at 430.

25. Tushnet speaks of the “good guys” as “the party of humanity,” supra note 19 at 1364.

26. Olsen, supra note 19 at 400-1.

27. Ibid., at 397.

28. Tushnet, supra note 19 at 1382.

29. Cf. here Williams, P. J., The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Matsuda, M. J., “Looking to the Bottom: Critical Legal Studies and Reparations” (1987) 22 Harvard C.R.—C.L. Law Rev. 22Google Scholar; Delgado, R., “The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?” (1987) 22 Harvard C.R.—C.L. Law Rev. 301Google Scholar; Williams, R. Jr., ‘Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Color” (1987) 5 Law and Inequality 103Google Scholar. Schneider, E., ‘The Dialectic of Rights and Politics: Perspectives from the Women's Movement” (1986) 61 New York U. Law Rev. 589Google Scholar argues much the same about women's struggles.

30. Cf. Crenshaw, K. W., “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” (1988) 101 Harvard L. Rev. 1331 at 1356ffCrossRefGoogle Scholar.

31. Bartholomew, A. & Hunt, A., “What's Wrong with Rights?” (1990) 9 Law and Inequality 1 at 51Google Scholar; their paper is alluded to by Kerruish on pp. 140-41. Tushnet, supra note 19 is criticized on pp. 8-21, and the “minority critique” on pp. 34-39.

32. Bartholomew & Hunt, ibid., at 50-53.

33. Nedelsky, J., “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 1 Yale J. of Law and Feminism 7 at 9Google Scholar.

34. Ibid., at 12.

35. Ibid. at 18ff.

36. I borrow this terminology from Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979) at 81Google Scholar.

37. There are also complications with respect to legal positivism. Raz, for example (ibid., c. 3), claims that laws have a social source. This is a formal, content-independent characteristic of law. Does it sufficiently acknowledge the social situatedness of law? Presumably not, for theorists like Kerruish. But it is some attempt to see law as a social institution.

38. A notable exception is MacCormick, supra note 10. He argues that a hermeneutic methodology is quite compatible with legal positivism. I express some scepticism about that claim in Shiner, supra note 1, c. 5.

39. Shiner, supra note 1.

40. Compare Fitzpatrick, P., The Mythology of Modern Law (New York: Routledge, Chapman & Hall, 1992)CrossRefGoogle Scholar, who is concerned with a similar tension between law as autonomous and law as object of social study, and who proposes the mythologization of law as the way to resolve the tension. I cannot address this proposal here.

41. Cf. Kennedy, D., “Form and Substance in Private Law Adjudication” (1976) 89 Harvard L. Rev. 1685CrossRefGoogle Scholar.

42. It seems to me that Kerruish would not deny this. She seems to believe in freedom, equality, and community (cf. p. 42) and empowerment and autonomy (cf. p. 146) as genuine values, and to contemplate the possibility of a normatively acceptable doctrinal legal discourse (p. 175). Her point is that, as basic social relation are presently constituted by material inequality, these ideals cannot be instantiated.

43. Shiner, supra note 1 at c. 13.3

44. It must also be assumed that it is a Bad Thing to be negatively ideological. But that seems not controversial.