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28 - Law and Philosophy at Odds

Published online by Cambridge University Press:  31 July 2009

By
Larry Alexander  and
Emily Sherwin
Edited by
Francis J. Mootz III
Francis J. Mootz III
Affiliation:
University of the Pacific, California
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Summary

In addressing the topic of this symposium – philosophy in American law – we give the term philosophy a meaning different from that given by Llewellyn in his article “On Philosophy in American Law.” Llewellyn described philosophy as something akin to an ideology or decision-making ethos, which will vary over time according to the interests of decision makers and the needs of society. In contrast, we have in mind a discipline that employs reason to bring clarity, depth, and precision to the process of thinking about a given subject.

Given our understanding of the term philosophy, the role of philosophy in law may seem obvious. Legal decision making is supposed to be a reasoned enterprise. Judges, in particular, are supposed to decide cases for reasons and to give reasons for their decisions. Surely philosophical methods, employed by judges and the lawyers who argue before them, will improve the quality of the process.

We shall argue that, in fact, legal decision makers may sometimes do better without the insights of philosophy. Law is a reasoned enterprise, but it is also a rule-governed enterprise. For reasons we shall develop, thorough and meticulous reasoning can undermine the benefits of legal rules. Philosophy is fine for observers of law but not necessarily good for its participants.

In sections that follow, we shall elaborate this point in the context of two practices that are integral to law: general compliance with legal rules and judicial decision making by analogy.

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Chapter
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On Philosophy in American Law , pp. 241 - 248
Publisher: Cambridge University Press
Print publication year: 2009

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References

Alexander, Larry. “Bad Beginnings.” U. Pa. L. Rev. 145.1 (1996): 57–87.CrossRefGoogle Scholar
Alexander, Larry. “The Gap.” Harv. J. L. & Pub. Pol. 14.3 (1991): 695–701.Google Scholar
Alexander, Larry, and Sherwin, Emily. Demystifying Legal Reasoning. Cambridge: Cambridge Univ. Press, 2008.CrossRefGoogle Scholar
Alexander, Larry. The Rule of Rules: Morality, Rules, and the Dilemmas of Law. Durham, NC: Duke Univ. Press, 2001.CrossRefGoogle Scholar
Brewer, Scott. “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy.” Harv. L. Rev. 109.5 (1996): 923–1028.CrossRefGoogle Scholar
Burton, Steven J.An Introduction to Law and Legal Reasoning. Boston: Little, Brown, 1995.Google Scholar
Dworkin, Ronald. Law's Empire. Cambridge, MA: Harvard Univ. Press, 1986.Google Scholar
Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press, 1978.Google Scholar
Eisenberg, Melvin Aron. The Nature of the Common Law. Cambridge, MA: Harvard Univ. Press, 1988.Google Scholar
Farber, Daniel A., and Frickey, Philip P.. “The Jurisprudence of Public Choice.” Tex. L. Rev. 65.5 (1987): 873–927.Google Scholar
Gauthier, David. “Commitment and Choice: An Essay on the Rationality of Plans.” In Ethics, Rationality, and Economic Behaviour. Eds. Farina, Francesco, Hahn, Frank, and Vannucci, Stefano. Oxford: Clarendon Press, 1996, 217–43.Google Scholar
Gilovich, Thomas, Griffin, Dale, and Kahneman, Daniel, eds. Heuristics and Biases: The Psychology of Intuitive Judgment. Cambridge: Cambridge Univ. Press, 2002.CrossRef
Goldman, Alan H. “The Rationality of Complying with Rules.” Ethics 116.3 (2006): 453–70.CrossRefGoogle Scholar
Haidt, Jonathan. “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment.” Psychological Review 108.4 (2001) 814–834.CrossRefGoogle ScholarPubMed
Hart, H. L. A.The Concept of Law. London: Oxford University Press, 1961.Google Scholar
Horty, John F. “The Result Model of Precedent.” Legal Theory 10.1 (2004): 19–31.CrossRefGoogle Scholar
Hurd, Heidi M.Moral Combat. Cambridge: Cambridge Univ. Press, 1999.CrossRefGoogle Scholar
Kavka, Gregory. “The Toxin Puzzle.” Analysis 43.1 (1983): 33–36.CrossRefGoogle Scholar
Kavka, Gregory. “Why Even Morally Perfect People Would Need Government.” Soc. Phil. & Pol'y 12.1 (1995): 1–18.CrossRefGoogle Scholar
Kuran, Timur, and Sunstein, Cass R.Cascades, “Availability and Risk Regulation.”, Stan. L. Rev. 51.4 (1999): 683–768
Lamond, Grant. “Do Precedents Create Rules?” Legal Theory 11.1 (2005): 1–26.CrossRefGoogle Scholar
Levi, Edward H.An Introduction to Legal Reasoning. Chicago: Univ. of Chicago Press, 1948.Google Scholar
Llewellyn, Karl N.The Bramble Bush. Dobbs Ferry, NY: Oceana Publishing, 1960a.Google Scholar
Llewellyn, Karl N.. The Common Law Tradition: Deciding Appeals. Boston: Little, Brown, 1960b.Google Scholar
McClennen, Edward F. “The Rationality of Being Guided by Rules.” In The Oxford Handbook of Rationality. Eds. Mele, Alfred R. and Rawling, Piers. New York: Oxford Univ. Press, 2004: 222–39.Google Scholar
McClennen, Edward F. “Pragmatic Rationality and Rules.” Phil. and Pub. Aff. 26.3 (1997): 210–58.CrossRefGoogle Scholar
McMahon, Christopher. Collective Rationality and Collective Reasoning. Cambridge: Cambridge Univ. Press, 2001.Google Scholar
Murphy, Marc. C. “Surrender of Judgment and the Consent Theory of Political Authority.” Law & Phil. 16.2 (1997): 115–43.Google Scholar
Plous, Scott. The Psychology of Judgment and Decision Making. Philadelphia: Temple Univ. Press, 1993.Google Scholar
Posner, Richard A.The Problems of Jurisprudence. Cambridge, MA: Harvard Univ. Press, 1990Google Scholar
Postema, Gerald J. “Coordination and Convention at the Foundation of Law.” J. Legal Stud. 11.1 (1982): 165–203.CrossRefGoogle Scholar
Rachlinski, Jeffrey J. “Bottom-Up versus Top-Down Lawmaking.” U. Chi. L. Rev. 73.3 (2006): 933–64.Google Scholar
Raz, Joseph. The Authority of Law. Oxford: Clarendon Press, 1979.Google Scholar
Raz, Joseph. Ethics in the Public Domain. Oxford: Clarendon Press, 1994.Google Scholar
Raz, Joseph. The Morality of Freedom. Oxford: Clarendon Press, 1986.Google Scholar
Schauer, Frederick. “Do Cases Make Bad Law?” U. Chi. L. Rev. 73.3 (2006): 883–918.Google Scholar
Schauer, Frederick. Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Life and Law. Oxford: Clarendon Press, 1991.Google Scholar
Shapiro, Scott J. “The Difference That Rules Make.” In Analyzing Law. Ed. Bix, Brian. Oxford: Clarendon Press, 1998: 33–62.Google Scholar
Sherwin, Emily. “Judges as Rulemakers.” U. Chi. L. Rev. 73.3 (2006): 919–31.Google Scholar
Sherwin, Emily. “A Defense of Analogical Reasoning in Law.” U. Chi. L. Rev. 66.4 (1999): 1179–97.CrossRefGoogle Scholar
Sherwin, Emily. “Rules and Judicial Review.” Legal Theory 6.3 (2000): 299–321.CrossRefGoogle Scholar
Slovic, Paul, et al. “The Affect Heuristic.” In Heuristics and Biases: The Psychology of Intuitive Judgment. Eds. Thomas Gilovich, Dale Griffin, and Daniel Kahneman. Cambridge: Cambridge Univ. Press, 2002: 397–420CrossRefGoogle Scholar
Sloman, Steven A. “Two Systems of Reasoning.” In Heuristics and Biases: The Psychology of Intuitive Judgment. Eds. Gilovich, Thomas, Griffin, Dale, and Kahneman, Daniel. Cambridge: Cambridge Univ. Press, 2002: 379–96.CrossRefGoogle Scholar
Sunstein, Cass R.Legal Reasoning and Political Conflict. New York: Oxford Univ. Press, 1996.Google Scholar
“A Symposium on the Theory of Public Choice.” Va. L. Rev. 74.2 (1988): 167–518.
Tversky, Amos, and Kahneman, Daniel. “Availability: A Heuristic for Judging Frequency and Probability.” In Judgment under Uncertainty: Heuristics and Biases. Eds. Kahneman, Daniel, Slovic, Paul, and Tversky, Amos. Cambridge: Cambridge Univ. Press, 1982: 163–78.CrossRefGoogle Scholar
Weinreb, Lloyd L.Legal Reason: The Use of Analogy in Legal Argument. New York: Cambridge Univ. Press, 2005.CrossRefGoogle Scholar

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