Reevaluating Legal Theory
130 Yale L.J. (2021) forthcoming
Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the nature of law that identifies law’s essential features, takes the views of its participants seriously, and prescinds from moral judgment. Twenty years on, the debate on this question persists and, despite increasing insight and sophistication, some wonder whether we have reached a dead end. To understand this dispute, and general jurisprudence’s methodological cul-de-sac, we need to broaden the range of questions and tools we bring to those arguments. To this end, this Review offers a mixture of the old and the new--demonstrating the usefulness of its approach by exploring the promise and limits of Dickson's work. In terms of the old, it argues that moralized approaches to general jurisprudence, especially the classical natural law tradition of legal theorizing, can better deliver on positivism's promise to offer theories of law that are both general and take seriously the point of view of participants. In terms of the new, it seeks to ground this approach in a broader philosophy of social science that avoids both reductive naturalism and relativistic particularity in its explanations. Law is intertwined with morality, but it is also a social fact: a practice and institution. Any general theory of jurisprudence, like any general theory of human practices and institutions, must reckon with the relationship between law's moral life and its factual existence. This Review begins the work of developing and rendering explicit such a social theory for a jurisprudence that takes both dimensions seriously.
Reevaluating Legal Theory,
130 Yale L.J. (2021) forthcoming.
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1453