Law as an Autonomous Discipline
THE OXFORD HANDBOOK OF LEGAL STUDIES, Peter Cane & Mark Tushnet, eds., pp. 975-987, Oxford University Press, 2003
14 Pages Posted: 10 Sep 2007
The idea of autonomy of law applies in distinct but related ways to legal reasoning, judicial reasoning, legal scholarship, and legal education. Additionally, claims about the autonomy of law can be understood as descriptive, analytical, or prescriptive. In this article, the different permutations of autonomy of law claims are considered in the context of various approaches to law, including American legal realism, the legal process school, law and economics, and critical legal studies.
American legal scholarship has gone through a period of overestimating the autonomy of legal reasoning, at the time of the legal formalists, to today, when the autonomy of legal reasoning is generally underestimated. Law's distinctive approach to reasoning and decision-making derives from the type of practice law is: a behavior-guiding practice, where the guidance is done primarily through general rules, and the rules are interpreted and applied by a hierarchical court system that gives precedential weight to earlier decisions. Within this sort of structure, legal discourse is distinctive, but can also be seen as merely a particular application of moral and political reasoning, rather than entirely abstracted from such reasoning.
Note: This is a description of the paper and not the actual abstract.
Keywords: autonomy of law, formalism, legal realism, CLS
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