Taking Experience Seriously: A Comment on Professor Zipursky’s “Benjamin Cardozo and American Natural Law Theory”
15 Pages Posted: 30 Jan 2023 Last revised: 25 May 2023
Date Written: January 30, 2023
This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo to Lon Fuller and Ronald Dworkin. After a few nitpicks, the essay wholeheartedly endorses Professor Zipursky’s suggestion that the analytic core of this tradition is the “challenging idea that the social life that grounds law is at once factually real and normatively fertile.” I aim to build on Professor Zipursky’s account by arguing (1) that the tradition goes back far earlier, at least to James Wilson’s Lectures on Law; and (2) that Dworkin offers only one interpretation of that “challenging idea.” The bulk of the essay is thus devoted to my ongoing (and as yet wholly unsuccessful) effort to convey why Ronald Dworkin’s theory of adjudication, despite its obvious power and intuitive appeal, contains a devastating defect, namely that it cannot give an adequate account of genuine progress (or lack thereof) in law or society.
Keywords: Cardozo, Dworkin, Fuller, Wilson, Common Law, Feminism, progress, legal science
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