Saturday, June 2, 2007

Walters on Hercules as Legal Humanist: Historicizing Dworkin's Jurisprudence

Mark Walters, Queen's University, has posted a paper, Hercules as Legal Humanist: Historicizing Dworkin's Jurisprudence. Here's the abstract:
Although H.L.A. Hart presented his legal theory ‘as part of the history of an idea', the theory of law developed by Hart's most famous critic, Ronald Dworkin, seems to be without a history. Dworkin does insist that his theory of law, ‘law-as-integrity', explains traditional common law method. But he has shown no real interest in the history of theorizing about that method, in part because he wishes to distance his own work from traditional schools of natural law. In this article, I revisit early theories of common law reasoning and show how, despite key differences, these theories share much in common with Dworkin's jurisprudence. Writers on the early-modern common law embraced insights drawn from Renaissance humanism to reach conclusions about the relationship between law and philosophy, the importance of coherence, interpretation and truth, and integrity, equality and the case-law method that foreshadow Dworkin's theory of law-as-integrity. If jurisprudence really is an aspect of normative political theory, as Dworkin suggests, then theories of law should be located within evolving traditions of political and intellectual thought. Law-as-integrity has a history to which it can lay claim, and that history is located in the humanist explanations of the early-modern common law.

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