Getting Public Law Back into a Critical Condition: The Rule of Law as a Source for Immanent Critique

Abstract

This article explores a series of issues that arise in relation to the methodology of conducting a critique of legal ideologies. It addresses the attempt by the Sheffield School of public law to formulate and apply an 'immanent' model of critique that builds upon the position developed by the Frankfurt School of critical social theory. We address difficulties that arise with the Sheffield School's interpretation of this model of critique, not least the problems with its attempt to apply a clear-cut distinction between wholly internal, immanent and external modes of critique. Our overall aim is to formulate a more adequate model of ideology critique that is able to overcome the various difficulties we have discovered within the Sheffield School's model. We argue that this can be achieved without relapsing back into the no less serious contradictions which can arise with external modes of critique. These merely superimpose ready-made criteria of assessment upon the object of their analysis, without first establishing their appropriateness.