Law and Philosophy at Odds

ON LAW AND PHILOSOPHY IN AMERICA, Francis J. Mootz, III, ed., Cambridge U. Press, 2008

Cornell Legal Studies Research Paper No. 07-007

19 Pages Posted: 23 May 2007  

Larry Alexander

University of San Diego School of Law

Emily L. Sherwin

Cornell University - Law School

Abstract

This essay, prepared for a symposium on the role of philosophy in law, suggests that philosophical discipline calls into question several features of practical legal decisionmaking. In particular, philosophical analysis of the practice of following rules shows that complying with legal rules when they dictate outcomes contrary to the rule's objectives is irrational. At the same time, important benefits associated with law depend on unreflective application of legal rules, without reference to underlying objectives.

Philosophical analysis also suggests that the supposed practice of analogical reasoning in law is illusory. Courts cannot make intelligible decisions based on similarities and differences between cases. At the same time, the process of seeking analogies in the facts and outcomes of prior cases can have salutary effects on judicial rulemaking.

This is not to say that philosophers should abstain from analyzing legal practices. Tradition and habit are likely to prevail over philosophical insight in the daily business of judicial decisionmaking.

Suggested Citation

Alexander, Larry and Sherwin, Emily L., Law and Philosophy at Odds. ON LAW AND PHILOSOPHY IN AMERICA, Francis J. Mootz, III, ed., Cambridge U. Press, 2008; Cornell Legal Studies Research Paper No. 07-007. Available at SSRN: https://ssrn.com/abstract=988227

Lawrence Alexander

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Emily L. Sherwin (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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