Evolutionary Legal Theory with A Brief Note on The Possible Subversive Character of Originalism

15 Pages Posted: 8 Aug 2019

See all articles by Pedro A. Caminos

Pedro A. Caminos

Universidad de Buenos Aires, Faculty of Law, Students

Date Written: August 3, 2019

Abstract

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

Suggested Citation

Caminos, Pedro Atahualpa, Evolutionary Legal Theory with A Brief Note on The Possible Subversive Character of Originalism (August 3, 2019). Available at SSRN: https://ssrn.com/abstract=3431493 or http://dx.doi.org/10.2139/ssrn.3431493

Pedro Atahualpa Caminos (Contact Author)

Universidad de Buenos Aires, Faculty of Law, Students ( email )

Buenos Aires
Argentina

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