November 22nd, 2012
Kevin Toh (San Francisco State University) has posted Jurisprudential Theories and First-Order Legal Judgments. Here is the abstract:
- The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and perhaps more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or wholly determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions require, should facilitate progress in legal philosophy and in first-order legal thinking.