How Practices Make Principles, and How Principles Make Rules

64 Pages Posted: 10 Jan 2022

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: January 5, 2022

Abstract

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing on concrete examples from statutory and constitutional law, the article shows how the version of positivism that it introduces betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled. In doing so, it also highlights the legal importance of the abstract jurisprudential inquiry this article undertakes. Because any argument about what our law is presupposes an account of what makes it so, domestic theories of statutory and constitutional interpretation—and the case-specific holdings they output—are only as secure as are the general jurisprudential theories they presuppose.

Keywords: Law & philosophy, jurisprudence, positivism, rule of recognition, validation, legal principles, legal rules, metaphysical grounding, constitutional & statutory interpretation, Supreme Court of the United States, SCOTUS, theoretical disagreements, TVA v. Hill, Obergefell, Chiafalo, Hart, Dworkin

Suggested Citation

Berman, Mitchell N., How Practices Make Principles, and How Principles Make Rules (January 5, 2022). U of Penn Law School, Public Law Research Paper No. 22-03, Available at SSRN: https://ssrn.com/abstract=4003631

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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