Law & Society Blog

Drhfk objects to my take on Dworkin:
I fail to understand how Dworkin’s chain novel theory, as interpreted by Bloomfield, could solve the genetic problem of legitimacy…. I don’t think that the chain novel metaphor solves the problem of legitimacy; it does not serve as an independent source of legitimacy for judicial decisions.
The objection is valid, […]

[Jurisprudence] One of the core ideas of European-style codification is to create genetically democratic laws, that is, to have all law be properly promulgated by a democratically elected body of representatives. In many instances, that enactment was, of course, a re-enactment of substantive rules that predated the formation of a democratically legitimized body. But re-enacting […]

Consider Dworkin’s Law’s Empire chain-novel image. What does it achieve? The chain-novel concept sees judges connected and constrained by what has gone before and connecting to and contraining what comes after. Is this just a fanciful version of stare decisis? No. Dworkin is patching a hole in the legitimacy-fabric of democracy in the U.S.
The continental […]

What are those building blocks of a legal world view that I am suggesting should be compared? They are arguments or argumentative patterns that convince lawyers from a specific legal system or legal culture. I submit that there are some arguments that are convincing to a common lawyer (with no further support) that aren’t convincing […]

I couldn’t agree more with Bloomfield’s post. Arguments are only as strong as the inference warrants that connect a claim to the evidence, and most of what counts as a “good argument,” that is, a convincing use of an inference warrant, is not only culturally dependent but also varies greatly from one specialized sub-system to […]

In their seminal textbook on comparative law, Zweigert/K??ttz distinguish comparing law on the macro and the micro level. Micro-comparisons are comparisons of the specific rules or institutes of a national body of law. Macro-comparisons on the other hand take into account such larger issues as different codification styles, principles of adjudication, interpretation and role of […]

Thus, a marriage between law and legal scholarship (high-level) and neuroscience (micro-foundation) is by no means capricious.Among other things, Chorvat and McCabe report the results of an experiment designed to measure the brain activity of test subjects who were confronted with the classic moral dilemma of whether to sacrifice one life to save many…. The fact that we have specialized programs for social-emotional processing (”don’t push the person onto the track”) and for instrumental choices (”better one than five”) does in no way imply that either, both, or neither of these impulses are normatively valid responses to the hypothetical.