Legal Theory Lexicon
-
Introduction Contracts is a foundational course, almost always included in the first semester of the first-year curriculum in American law schools. Although the focus of contracts courses is usually doctrine, theoretical questions inevitably arise: What is a contract? Why does the law enforce promises? What gives a contractual obligation its force? Should the law of…
-
Property is almost always a first year subject. Decades ago, it was most likely a year-long course, but today the course is typically offered in the Fall or Spring. The 1L property course typically begins with possession (capture cases like Pierson v. Post), moves through estates in land and future interests, and then takes up…
-
Introduction The usual story we tell about statutes is that every statute has the same “force of law,” irrespective of age or importance. Some statutes might be more consequential than others; other statutes might be entrenched politically. But their legal status is the same. The usual story has been challenged by the idea that there…
-
Introduction Legal discourse is organized by structures that operate above the level of individual rules. When a constitutional lawyer reads a Commerce Clause case, she does not approach it as an isolated proposition; she reads it within a framework of canonical cases, doctrinal generalizations, normative theories, and historical narratives — a framework that tells her…
-
By Lawrence B. Solum Link to the Most Recent Version of this Lexicon Entry Legal Theory Lexicon 110: Soundness and Validity in Legal Argumentation Introduction Legal arguments come in many forms. Lawyers argue from precedent, from statutory text, from policy considerations, and from moral principles. But underlying these diverse forms of legal argument are basic…
-
Law students quickly discover that some of the most important legal texts are old. The United States Constitution was written in 1787. Many of the doctrines that organize the common law took shape centuries earlier. Important statutes—the Statute of Frauds, for example—date from the seventeenth century. To work with these texts, lawyers and judges have…
-
The Legal Theory Lexicon has a new entry: Legal Theory Lexicon 108: Epistemic Injustice The concept of epistemic injustice — developed by Miranda Fricker and extended by Kristie Dotson, José Medina, Gaile Pohlhaus Jr., Alison Bailey, and others — provides a powerful lens for examining the ways in which people can be wronged in their…
-
Every lawyer who has interpreted a statute or a constitutional provision has encountered the hermeneutic circle, even if they have never heard the name. The problem is this: to understand a legal text, you must understand its parts; but to understand its parts, you must already have some grasp of the whole. A single statutory…
-
Introduction Legal theorists routinely invoke the idea that legitimate law must emerge from something like a fair deliberative process — one in which reasons are exchanged, positions are tested, and outcomes reflect genuine agreement rather than mere coercion or strategic manipulation. That intuition needs a theoretical foundation. The German philosopher Jürgen Habermas has developed a…
-
Introduction H.L.A. Hart’s The Concept of Law, first published in 1961, is widely regarded as the most important work of legal philosophy in the twentieth century. Among its many contributions, none is more central than the idea of the rule of recognition — a master rule that specifies the criteria by which a society identifies…