Concepts and Constructs
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Introduction Law students frequently encounter the idea of false positives and false negatives when discussing Blackstone’s ratio: “better that ten guilty persons escape than that one innocent suffer.” The conviction of an innocent person is what is called a “false positive,” whereas a guilty person escaping punishment is a “false negative.” This Lexicon entry analyzes…
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Introduction The usual story we tell about statutes is that every statute has the same “force of law,” irrespective of age or importance. Some statutes might be more consequential than others; other statutes might be entrenched politically. But their legal status is the same. The usual story has been challenged by the idea that there…
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Introduction Legal discourse is organized by structures that operate above the level of individual rules. When a constitutional lawyer reads a Commerce Clause case, she does not approach it as an isolated proposition; she reads it within a framework of canonical cases, doctrinal generalizations, normative theories, and historical narratives — a framework that tells her…
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Introduction Law students quickly discover that some of the most important legal texts are old. The United States Constitution was written in 1787. Many of the doctrines that organize the common law took shape centuries earlier. Important statutes—the Statute of Frauds, for example—date from the seventeenth century. To work with these texts, lawyers and judges…
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Introduction There is a very powerful idea that has developed in feminist philosophy and the philosophy of race. That idea is epistemic injustice. And it turns out that the idea of epistemic injustice is an important tool for legal theorits. Let’s figure out what epistemic injustice is and what work it can do in legal…
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Every lawyer who has interpreted a statute or a constitutional provision has encountered the hermeneutic circle, even if they have never heard the name. The problem is this: to understand a legal text, you must understand its parts; but to understand its parts, you must already have some grasp of the whole. A single statutory…
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Introduction Legal theorists routinely invoke the idea that legitimate law must emerge from something like a fair deliberative process — one in which reasons are exchanged, positions are tested, and outcomes reflect genuine agreement rather than mere coercion or strategic manipulation. That intuition needs a theoretical foundation. The German philosopher Jürgen Habermas has developed a…
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Introduction H.L.A. Hart’s The Concept of Law, first published in 1961, is widely regarded as the most important work of legal philosophy in the twentieth century. Among its many contributions, none is more central than the idea of the rule of recognition — a master rule that specifies the criteria by which a society identifies…
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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 democracy 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…