The Limits of Epistemic Legalism: A Reply
Harvard Law School
December 25, 2009
Jerusalem Review of Legal Studies, Vol. 2, 2010
Harvard Public Law Working Paper No. 10-48
The Jerusalem Review of Legal Studies has published a symposium on Law and the Limits of Reason (2009). In this reply to the commentators, I attempt to go beyond the book to clarify several critical issues. One is whether epistemic legalism, the book’s main target, is itself a theory of judicial legitimacy; I claim that it is. Another is the distinction between comparing the epistemic capacities of legislators and judges, on the one hand, and comparing the epistemic capacities of legislatures and courts, on the other. The first compares individuals, while the second compares groups. Conflating these two very different comparisons produces aggregation fallacies and analytic mistakes.
Date posted: December 11, 2010 ; Last revised: March 20, 2012