The Problem of Derivation: Lawrence v. Texas and the Abuse of Social Facts

42 Pages Posted: 15 Apr 2011

See all articles by Jason Koslowe

Jason Koslowe

affiliation not provided to SSRN

Date Written: April 15, 2011

Abstract

This essay exposes and explores what I call the problem of derivation: Where fundamental legal or political values, substantively rooted in socio-cultural conditions, neither uncomplicatedly nor presumptively emerge from social reality; yet the operative approach provides no mechanism, procedure, or analytic method to translate societal values into legal or political principles. That is, granting the connection, in theory and practice, between values embedded in and constitutive of socio-cultural reality and legal principles, this analysis pinpoints the deep methodological gap between casually connecting socio-cultural values and legal principles and articulating a method by which to derive the later from the former.

This essay uses the Lawrence v. Texas decision to illustrate and frame the problem of derivation, and locate it at the heart of contemporary constitutional jurisprudence. Despite positing an “emerging awareness” tying sexual autonomy to liberty, personhood, and identity, Lawrence gives no method by which social norms and values are to be derived from socio-cultural reality.

The problem of derivation recurs, in surprising similarity, across the breadth of legal and political thought. The same vagueness and inarticulacy that characterize courts’ expositions of reasonableness or depictions of social decency stand at the core of contemporary political theory.

The essay concludes by expanding the stakes of the problem of derivation. When understood in light of it’s recurrence throughout legal and political thought, derivation presents, beyond a methodological problem, an epistemological dilemma. If, normatively and functionally, legal principles are created from social facts, but courts cannot express any coherent means of deriving law from society, how can they claim knowledge of legal principles themselves.

Suggested Citation

Koslowe, Jason, The Problem of Derivation: Lawrence v. Texas and the Abuse of Social Facts (April 15, 2011). Columbia Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=1810954 or http://dx.doi.org/10.2139/ssrn.1810954

Jason Koslowe (Contact Author)

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