Democratic Legitimacy and the Scientific Foundation of Modern Law

Abstract

This Article explores the unacknowledged impact of the scientific provenance of modern law. Justice, I argue, is threatened by social scientific thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.