The Architecture of Jurisprudence
Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorl
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The Architecture of Jurisprudence Jules L. Coleman
5.1
Introduction
Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed. This Article does just that. It characterizes two central tenets of the conventional wisdom in jurisprudence and argues that both must be discarded if progress in jurisprudence is to be made. Having discarded both tenets of conventional wisdom, the Article then demonstrates the progress that can be made and indicates the direction in which prospects for further progress have been enhanced.1 We begin by loosening the grip of conventional wisdom.
Originally published at Yale Law Journal, 121 (1): 2–80. The editors are greatful to Yale Law Journal for their permission to reprint this paper. 1 As a Torts teacher, I feel compelled to issue a warning; whether it is adequate to relieve me of responsibility is another matter. I pride myself on writing clearly and especially in having the ability to communicate difficult and technically demanding material in an accessible manner. I try to do the same here and for the most part, I believe, successfully. That said, the discussion in Part VI is very demanding, and I could find no way of getting the points across that makes for pleasurable reading. I believe, however, that anyone who is prepared to work through the argument can understand it (whether they agree with the conclusions or not). I have avoided the use of logical notation and technical jargon wherever doing so is at all possible. To be honest, it is not as if, but for Part VI, the Article reads like a summer novel, but it should provide no special barriers to comprehension beyond the need to read carefully and stay awake while doing so.
J.L. Coleman (*) Office of the Provost, New York University, 70 Washington Square South, 10012-1091 New York, NY, USA e-mail: [email protected] J. Ferrer Beltrán et al. (eds.), Neutrality and Theory of Law, Law and Philosophy Library 106, DOI 10.1007/978-94-007-6067-7_5, © Springer Science+Business Media Dordrecht 2013
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5.2 5.2.1
J.L. Coleman
The Conventional Wisdom and the Separability Thesis Its Place in the Conventional Wisdom
Though most academic lawyers are unschooled in the finer points of contemporary jurisprudence, nearly all are confident of their ability to distinguish legal positivism from natural law theory. They tell us that natural lawyers assert and positivists deny the existence of necessary connections between law and morality; that positivists endorse and natural lawyers reject what I have termed ‘the separability thesis’.2 Academic lawyers may even tell us that legal positivism is defined by its commitment to the separability thesis and na
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