Evolutionary Legal Theory with A Brief Note on The Possible Subversive Character of Originalism
15 Pages Posted: 8 Aug 2019
Date Written: August 3, 2019
This paper has one main aim. It will sketch a theoretical framework for a descriptive account of legal change. The framework will identify some social facts as being relevant for a political or moral value-free enquiry about the law. The main contention will be that social conventions for identifying the sources of law, i.e., the hartian rule of recognition, are not enough for a proper understanding of legal phenomena. Thus, other conventions should be taken into account. The paper will end with a brief note on how, according to the theoretical framework sketched in the first section, it is possible that originalist doctrines of constitutional interpretation may be rather subversive of a certain legal culture. Despite its official justification of keeping the law as it is, originalism may be, in certain contexts, an invitation for a radical change in the legal system.
Keywords: Evolutionary Legal Theory, Legal Conventionalism, Originalism
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