Legal Theory Lexicon
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Introduction Sometimes a case is referred to as “canonical.” It is one of the cases that is clearly correct. In the context of American constitutional law, Brown v. Board is frequently cited as a canonical case. Other times, the opposite point is made: a case is call “anti-canonical.” It is clearly wrong. An example is…
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Introduction Law students quickly learn that the interpretation of legal texts is an important component of legal practice. Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision. How do we determine the meaning of legal texts? One possibility is that judges could consult their linguistic intuitions. Another…
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Introduction Normative legal theory is concerned with reasons for legal actions, including reasons for adopting legislation or for judge-made law. This very brief entry in the Legal Theory Lexicon attempts to sort out some the terminology by discussing the terms “normativity,” “morality,” and “ethics” in their various forms and meanings. As always, the Lexicon is aimed at…
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Introduction In many ways, the “Legal Process” approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century. There was more than one version of “legal process” theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of “reasoned elaboration” that is associated with…
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Introduction In The Path of the Law, Supreme Court Justice Oliver Wendell Holmes, Jr., wrote, If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his…
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Introduction Many law students learn about “narrative” at some point in law school. Of course, narratives (or more simply “stories”) are all over the law. Individual cases include narratives in their recitation of the facts and procedural history. Sequences of cases can be studied as narratives, with events both internal and external to the law…
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Introduction One of the most basic ideas in legal theory is the distinction between “communicative content” and “legal content.” That sounds fancy, but this fundamental idea is very simple. Legal texts of all kinds communicate; they say things. Roughly, what they say is their linguistic meaning–the meaning of the words and phrases in context. Some…
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Introduction Back in the day (by which I mean the mid-70s through the mid-90s) big normative theories were all the rage in the legal academy. It's hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice hit the legal academy, it produced a dramatic shift in the practice of normative…
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Introduction As law students become more sophisticated, they begin to notice that certain debates seem to repeat themselves over and over again. Disagreements about disparate subjects–in procedure, criminal law, torts, property, and constitutional law–frequently seem to turn on the really big questions of ethics and political theory. On the one hand, the proponents of inviolate…
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Introduction Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? Could an artificial intelligence be a legal person? At least some of these questions…