Normative Theory
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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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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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By Lawrence B. Solum Introduction Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules. Previous entries in the Lexicon have examined exemplars of the three great traditions in normative theory–consequentialist, deontological, and aretaic (or virtue-centered) perspectives. There are important differences between these three…
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By Lawrence B. Solum Introduction The phrase “path dependency” is used to express the idea that history matters–choices made in the past can affect the feasibility (possibility or cost) of choices made in the future. This entry in the Legal Theory Lexicon introduces this idea to law students, especially first-year law students, with an interest…
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By Lawrence B. Solum Introduction Some of the key conceptual tools deployed by legal theorists are likely to be familiar to many law students from their undergraduate education. One of these is the notion of the “social contract”–familiar from Hobbes, Locke, and Rousseau. But unless you were an undergraduate philosophy major or have some graduate…
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By Lawrence B. Solum 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…
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By Lawrence B. Solum Introduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at “risk spreading”? Should the Equal Protection Clause of the United States Constitution be read…
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By Lawrence B. Solum Introduction The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes–conservatives and liberals, welfarists and deontologists—tend to agree that the…
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By Lawrence B. Solum Introduction “Legitimacy.” It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times,…
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By Lawrence B. Solum Introduction Most law students begin to realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery—unless the blow was landed in a boxing match, in which case consent turns the battery into something that…