Legal Theory Lexicon
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You can access the Legal Theory Lexicon from the Menu of the Legal Theory Blog, which is located in the upper left corner–next to Aristotle’s head. Or you can use the following direct link: https://legaltheorylexicon.com/ The Legal Theory Lexicon has been updated to make it more useable in two ways. First, the Table of Contents…
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By Lawrence B. Solum Introduction Legal theories differ not just in their substantive claims but also in their conceptual structure—in the way they organize and deploy theoretical concepts. One interesting way to think about conceptual structure focuses on the number of foundational concepts a theory uses to explain its subject matter. Monist legal theories seek…
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By Lawrence B. Solum Introduction The concept of democrary is clearly one of the most important ideas in normative legal theory in general and normative constitutional theory in particular. Alexander Bickel’s discussion of a “counter-majoritarian difficulty” is just one of many places where legal arguments rely on the concept of democracy. This Lexicon entry explores…
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By Lawrence Solum Introduction The law frequently deploys the idea that actions, events, and communications have motives, purposes, or functions. Consider the following list of questions: This Lexicon entry explores an important distinction between subjective motivations, on the one hand, and objective functions, on the other. These concepts are deployed in a wide variety of…
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Introduction The idea of “general law” or “general common law” is usually introduced to law students in the course on Civil Procedure in connection with Erie Railroad v. Tomkins, 304 U.S. 64 (1938). In that course, students might learn about the distinction between two kinds of common law, local and general. Local common law was…
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Introduction The world of contemporary constitutional theory is complicated. Although originalism the focus of attention in many recent discussions, there are a plethora of nonoriginalist positions. One of these is usually called “constitutional pluralism,” an approach to constitutional interpretation and construction which holds that constitutional practice should be guided by multiple “modalities” of constitutional justification,…
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Introduction This Lexicon entry provides an introduction to the distinction between semantics and pragmatics–ideas that play a fundamental role in theoretical linguistics and the philosophy of language. Although the terminology is unfamiliar to many lawyers, the basic idea behind the distinction is fundamentally importan to theories about the interpretation and construction of legal texts. “Semantics”…
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Introduction Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do. In a previous Legal Theory Lexicon entry, a distinction was made between “interpretation” and “construction.” Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities:…
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Introduction There is a fundamental distinction between two kinds of questions that lawyers and judges ask. Let’s begin with some examples of what we can call “issue-level questions”: What is the standard of care in a negligence action? What is the proper test for federal question jurisdiction under 28 USC §1331? Are laws that classify…
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Introduction There is a fundamental distinction between two kinds of questions that lawyers and judges ask. Let’s begin with some examples of what we can call “issue-level questions”: These issue-level questions can be contrasted with what we can call “meta-level questions.” Here are some examples: In the first year of law school, students encounter countless…