Jurisprudential Theories and First-Order Legal Judgments

Bibliographic Data

ID4079826
AuthorsKevin Toh (San Francisco State University, corresponding author)
Year2013
Volume8
Issue5
Pages457-471
Publication date2013-05-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenuePhilosophy Compass (JOURNAL)
Journal identifiersISSN: 1747-9991 • E-ISSN: 1747-9991
PublisherWiley (PUBLISHER • GB)
DOI10.1111/phc3.12036
OpenAlexW2335080759
LanguageEN
Citations received5
References cited44

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and arguably more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or ultimately determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions imply, should facilitate progress in legal philosophy and in first-order legal thinking

Black letter law · Comparative law · Covert · Epistemology · Legal formalism · Legal profession · Legal realism · Philosophy of law · Political science · Sociology · Computer Science · Free Will and Agency · Law · Legal principles and applications · Philosophical Ethics and Theory · Philosophy

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