Justifying Jurisprudence: Reflections on the Purpose and Method of Legal Theory
Aaron J. Rappaport
University of California Hastings College of the Law
Mississippi Law Journal, Vol. 73, 2004
Legal theorists like Dworkin, Hart, and Kelsen all do legal theory differently. Which methodology is better? The core argument of this paper is that any attempt to answer that question must first address a more basic one: What is the point or purpose of theorizing about the law?
This Article's claim is that one cannot justify a method of doing jurisprudence without knowing what that method will be used for. Clarity about the purposes of jurisprudence repesents an essential step in clarifying the methodology of legal theory. Unfortunately, there is a remarkable dearth of writing - in an area where there is no dearth of words - about the point and purpose of jurisprudence itself. The result is an enormous amount of confusion about the way legal theory should be undertaken. Methodological claims are made without any rationale for their form and content.
This Article seeks to encourage a conversation about the overriding purposes and, ultimately, the appropriate methodology of legal theory. The approach is constructive: The Article advances an argument for a distinct theorietical objective, and then explains how that objective calls for a distinct methodology, which I call rational reconstruction.
At the same time, the Article has a critical component too: The constructive argument is used to critique the methodological coherence of two leading theorists - Ronald Dworkin and Hans Kelsen. The result is to shine some light on what legal theorists are actually doing - and what they should be doing - when they do legal theory.
Accepted Paper Series
Date posted: April 23, 2004
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