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Toh on the Prediction Thesis & Persistent Fundamental Controversies

By Lawrence Solum

Kevin Toh (University of Texas Law School) has posted The Predication Thesis and a New Problem About Persistent Fundamental Legal Controversies (Utilitas, Vol. 22, September 2010) on SSRN. Here is the abstract:

According to a widely-held view, people?s commitments to laws are dependent on the existence in their community of a conventional practice of complying with certain fundamental laws. This conventionalism has significantly hampered our attempts to explain the normative practice of law. Ronald Dworkin has argued against conventionalism by bringing up the phenomenon of persistent fundamental legal controversies, but neither Dworkin nor his legal positivist respondents have correctly understood the real significance of such controversies. This paper argues that such controversies pose a deep challenge to any conception of our legal practice as a genuinely normative, rule-mediated, practice. The paper also argues that what is needed to deflect this challenge is a new understanding -- different from the widely-held conventionalist understanding -- of how people?s commitments to laws are predicated on their fellows? like commitments.

Highly recommended.

Full post as published by Legal Theory Blog on August 11, 2010 (boomark / email).