Shyamkrishna Balganesh (Columbia University – Law School) & Taisu Zhang (Yale University – Law School) have posted Legal Internalism as a Mode of Reasoning (American Journal of Jurisprudence, Vol. 71, forthcoming) on SSRN. Here is the abstract:
Despite the influence of Legal Realism, within the realm of legal practice—judicial opinions and beyond—legal reasoning remains outwardly rule-driven, conceptual, deductive, and heavily path-dependent. In this domain, legal reasoning adheres to a phenomenon best described as “legal internalism”, embodying three interdependent features: (i) characterization of the law (and reasons) as independently authoritative and normative, (ii) treatment of the law as epistemologically self-contained thereby limiting its assessment to internal criteria, and (iii) a presumptive logical coherence to law and its constitutive precepts. Legal internalism, thus understood is not the same as Legal Formalism, in that the latter involves the internalization of these features as a matter of belief and commitment. In this Article, we advance a jurisprudential account of legal internalism as a modality of legal reasoning and attempt to show how internalism can operate as a distinct mode of legal reasoning that enables it to mediate between functional considerations and a core commitment to legality. Far from being a form of “window dressing” as the Legal Realists claimed was the function of rules, legal internalism recognizes doctrine and rules to play three critical functions in the reasoning process: translation, saliencing, and normativization. The Article unpacks each of these functions, and argues that in reality legal internalism may well represent the dominant mode of analysis and reasoning in the law today.
Highly recommended.