MARK Kelman's Theory Of Central Contradictions

841 Words4 Pages
“Contradiction” here did not mean logical contradiction, rather it denoted opposition or conflict. MARK KELMAN’S THREE CENTRAL CONTRADICTIONS According to Kelman, liberalism in the eyes of Crits is “a system of thought that is simultaneously beset by internal contradiction and a systematic repression of the presence of these contradictions. He claims there are three central contradictions:- i. The contradiction between a commitment to mechanically applicable rules as the appropriate form of resolving disputes and a commitment to situation-sensitive, ad-hoc standards. ii. The contradiction between a commitment to the traditional liberal notion that values or desires are arbitrary, subjective, individual and individuating while facts or…show more content…
“to be cast as rules.” However, there are good counter-reasons for believing that they are better cast as standards. The virtues of the rule form are that it confines official discretion and that it provides citizens with a clear advance warning of the circumstances in which power may be deployed, thus giving them both choice and security. But the rule form also has its own vices. If the age example is used, then that protecting minors from improvident contracts can be seen to protect those who are as mature as adults and therefore do not need protection and to fail to protect those chronologically of age who lack the maturity to make rational decisions. The choice could therefore be said to come down to a question of which form most effectively carries out the substantive purpose, but it doesn’t always succeed. This would ask an empirical question, which Kennedy calls “a positivist investigation of…show more content…
i. The jurisprudential position that favours rules is linked with one substantive ethical view (Individualism). It is bracketed with liberalism and the belief that all values are subjective. ii. The jurisprudential view that favours standards with another (Altruism). It is bracketed with Collectivism and the belief justice consists of order directed to the achievement of shared ends. The modern era is an age of contradiction, though it is dominated by considerations of morality and policy, the conflict between individualism and altruism remains. The modern jurist has contradictory pulls. Kelman suggests that Kennedy be interpreted as positing an “aesthetic” connection between form and substance. Kennedy doesn’t say that individualists inevitably favour the rule form for any legal norm and altruists the standard form. Secondly, he himself gives examples of rule-like norms that have been consistently promoted by those holding altruistic principles. For instance, progressive Income-Tax Laws and standards that can promote individualist values, such as the negligence standard. But Altman argues that the connection may be logical: it is difficult to see any aesthetic link. Individualism provides general but feasible reasons for choosing rules over standards, but altruism provides general but defeasible reasons for choosing the
Open Document