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Wednesday, November 02, 2011

What Is a Legal Theory?

In a few projects I am now working on, I am trying to think about the way that legal theories do their work.  And in challenging some of the methods and approaches that some folks take to the activity of legal theory, I've come across the question of what it takes to count as a legal theory.  I'm not so interested in "beating" other theories (though that would be nice too) as I am in trying to understand those components that would qualify to constitute a legal theory.  My tentative conclusion is that, other perhaps than the component of simply thinking a lot about a cluster of legal phenomena, there is no necessary component or magic ingredient.  Consider a few possible necessary components:

(1) A legal theory must accurately describe the legal landscape.  Some theories do this, but some don't.  Some theories state a claim about the world as it ought to be and could not care less about the world as it actually is (and don't really know how it is) -- all they know is that it isn't what it ought to be.  I suppose to that limited extent, one has to realize that the world has not yet satisfied the ideal proposed, but that seems to bleed the descriptive ambition almost dry.

(2) A legal theory must prescribe a normative legal framework or offer recommendations about practical problems.  Again, some theories do this, but some certainly do not.  Many theories are simply explanatory accounts of existing doctrine, or conceptual accounts about specific legal phenomena.  Theories in comparative law do just that -- they compare different legal regimes, often times without doing any prescribing or recommending.

(3) A legal theory must systematize or organize beliefs about the legal world.  It is true that many theories do this -- they wish to bring coherence to disorder.  But some (in fact, my own preferred theories) do not do this at all.  Value pluralism -- in law as in other areas -- is a theory and it would be strange to describe it as a theory which systematizes beliefs or values.  It does, in some sense, the opposite of this.

(4) A legal theory must be applicable universally, or to all people equally.  This has got to be wrong, or if it is right, then so much the worse for legal theory.  But I think it is wrong.  One can have a theory about the Free Exercise Clause and recognize exceptions, or situations in which the theory should not apply.  I suppose one might say -- well, that's simply part of the theory, we will incorporate the exceptions within the fabric of the theory itself.  Then the rule might look like this: A legal theory must be applicable universally, except in those cases where it should not be so applied. 

(5) A legal theory must be abstract.  Sometimes one sees this as the keystone of the concept of a theory, but I have trouble with this component too.  I agree that a legal theory cannot be simply an agglomeration of particular data; it must do more than report the data and shrug.  But what more must be done to qualify as a theory is opaque to me.  To qualify as a legal theory, it does not need to come up with general rules or principles derived from the data, since particularism surely qualifies as a (legal) theory.  It needs to say something about the data, though I do not think that it needs to say something action-guiding about it (see 1 and 2 above).  What does it need to say?  Whatever it is, calling it "abstract" or "general" seems misleading to me.

(6) A legal theory is specific or explicit about whatever it is.  Assuming one does not mean that a legal theory must have explicit rules about everything (that would not be fair to this component), I guess this is true, but in that case it doesn't seem to illuminate very much. 

In fact, it seems to return me to where I began -- which is that a legal theory is nothing more than thinking deeply about legal phenomena (and being "explicit" about that deep thought).  While all of these components sometimes are seen in legal theories, in combinations and different degrees, I do not think any of them is the necessary magic powder to convert legal thought into legal theory.  Indeed, if anything, it seems to me that legal thought and legal theory are much closer than is generally supposed -- that legal theory is not a special category of legal thinking; it is legal thinking. 

Posted by Marc DeGirolami on November 2, 2011 at 09:05 AM | Permalink


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