1. In Praise of Theory
Introduction
Introduction
50. RD introduces the theory-embedded and the
practical approaches to reasoning about the truth
of legal claims. He favours the former, embedded
approach, despite its seeming “abstract,
metaphysical, and wholly out of place when there
is real work to be done.” The practical approach
turns out to be impractical.
2. In Praise of Theory
The Embedded View
The Embedded View
51t1. The embedded view suggests that “we
justify legal claims by showing that principles
that support those claims also offer the best
justification of more general legal practice in
the doctrinal area in which the case arises.”
The implication is that legal argument is
vulnerable to `justificatory ascent’.
3. In Praise of Theory
Hercules and Minerva
Hercules and Minerva
Hercules and Minerva (H’s scientific analog)
argue outside-in, whereas ordinary judges and
scientists argue inside-out. But H and M
remind that there is no a priori or wholesale
test for deciding when justificatory ascent will
be required. They represent the `seamless
web’ that is the logical end of the justificatory
ladder.
4. In Praise of Theory
The Chicago School
The Chicago School
RD distinguishes metaphysical, pragmatic,
and professional legal arguments of the anti-
theory people, notably Judge Posner and
Professor Sunstein. The metaphysical one is
the Rorty’s thesis, earlier scouted. On the
pragmatics side, he is concerned with
Posner’s anti-RD attitude: “practical,
instrumental, forward-looking, activist,
empirical, skeptical, anti-dogmatic”. The
professional argument assigns priority to close
textual analysis and analogy.
5. In Praise of Theory
(continued)
(continued)
Sunstein’s “incompleteness theorem” appeals
to Rawls’s idea of overlapping consensus,
which Dworkin doesn’t argue with. However,
RD objects to the third version of the theorem,
which says that lawyers and judges should
curb their individual judgment about the more
abstract reaches of political moral theory. This
yields superficiality and incapacity to deal with
hard cases. CS’s appeal to analogy doesn’t
help, because analogy without theory is blind.
th
6. In Praise of Law
Summary: In Defense of Theory
Summary: In Defense of Theory
“We have now seen the trap in mistaking an
anti-theoretical posture for modesty, however.
Posner’s apparently innocent experimentalism
ends in one of the most ambitious and
technocratic absolutisms philosophers have
ever devised, which is utilitarian
consequentialism, and Sunstein’s counsel of
judicial abstinence, if it were feasible at all,
would produce not more democracy but the
paralysis of a process essential to democracy.
7. In Praise of Law
Summary: In Defense of Theory
Summary: In Defense of Theory
“We have now seen the trap in mistaking an
anti-theoretical posture for modesty, however.
Posner’s apparently innocent experimentalism
ends in one of the most ambitious and
technocratic absolutisms philosophers have
ever devised, which is utilitarian
consequentialism, and Sunstein’s counsel of
judicial abstinence, if it were feasible at all,
would produce not more democracy but the
paralysis of a process essential to democracy.
