Download this Paper Open PDF in Browser

Explanation in Legal Scholarship: The Inferential Structure of Doctrinal Analysis

38 Pages Posted: 25 Nov 2011  

W. Bradley Wendel

Cornell University - School of Law

Date Written: November 23, 2011

Abstract

This paper aims to understand the logic that underlies a familiar type of legal scholarship, in which the author purports to explain or render intelligible some legal doctrine or area of law in terms of an end or rationale. Loosely speaking, the argument is that some doctrine is "all about" some end. This form of argument is familiar but undertheorized, so this paper draws from the philosophy of science, particularly the notion of inference to the best explanation (IBE), to clarify the underlying rhetorical strategy of doctrinal legal scholarship. One way of making IBE arguments with reference to legal doctrine might be to employ Dworkin's method of seeking coherence with a political community's moral principles. Many legal scholars deny that they are methodologically indebted to Dworkin, but the burden may be on them to articulate a non-moral sense in which their proposed explanation is the best one. Criteria from IBE argments in the natural sciences, such as simplicity, consilience, fruitfulness, and even explanatory "loveliness" may therefore play a role in evaluating theoretical legal arguments.

Keywords: Explanation, inference to the best explanation

Suggested Citation

Wendel, W. Bradley, Explanation in Legal Scholarship: The Inferential Structure of Doctrinal Analysis (November 23, 2011). Cornell Law Review, Vol. 96, No. 4, 2011; Cornell Legal Studies Research Paper No. 11-38. Available at SSRN: https://ssrn.com/abstract=1963810

W. Bradley Wendel (Contact Author)

Cornell University - School of Law ( email )

Myron Taylor Hall
Lewis Hall
Ithaca, NY 14853
United States

Paper statistics

Downloads
234
Rank
110,147
Abstract Views
1,787