38 Pages Posted: 25 Nov 2011
Date Written: November 23, 2011
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: 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