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Holmes's 'Path Of The Law' As Non-Analytic Jurisprudence, Dan Priel
Holmes's 'Path Of The Law' As Non-Analytic Jurisprudence, Dan Priel
Dan Priel
Despite being widely read and the source of numerous oft-cited aphorisms “The Path of the Law” remains elusive. To put the matter starkly: What is its thesis? Does it have one? How can we reconcile its matter-of-factly opening pages and its almost mystical conclusion? For some this was just proof that Holmes was a superficial and contradictory thinker; for others it suggested that “Path” should be read a series of interesting insights and arresting phrases, and nothing more. In this essay I suggest reading Holmes’s famous speech as an essay with a thesis about, well, the path of the law. …
Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel
Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel
Dan Priel
This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a …
The Misguided Search For The Nature Of Law, Dan Priel
The Misguided Search For The Nature Of Law, Dan Priel
Dan Priel
Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence …