Theorizing about Law

Abstract

There are many, purportedly competing, theories about law and about aspects of legal practice. H.L. A. Hart, in perhaps the most famous contemporary account, explains law in terms of primary and secondary rules. Writers within the American legal realist tradition believe rules cannot adequately explain legal practice and look instead to actual decisions. This view is reflected in Oliver Wendell Holmes’ famous definition of law as “the prophecies of what the courts will do in fact.” Ronald Dworkin theorizes that posited rules cannot account for the innumerable disputes about the law and argues that political morality plays an important role in conceptualizing law. These theories variously explain law in terms of (a) posited rules, (b) judicial decisions and not rules, and (c) legal rules and moral rights. This sampling of “rival” theories typifies the current state of jurisprudence: a plethora of apparently competing and seemingly endlessly debated theories about law. Ruth Gavison suggests that much jurisprudential discussion has been “sterile and barren” because theorists often have not appreciated the plurality of purposes for theorizing about law and, consequently, the extent to which putatively contradictory accounts of law are at cross purposes or complementary.