Academic

Bix on Law & Truth

By Lawrence Solum

Brian Bix (University of Minnesota Law School) has posted Will Versus Reason: Truth in Natural Law, Positive Law, and Legal Theory (TRUTH: STUDIES OF A ROBUST PRESENCE, Kurt Pritzl, ed., Catholic University of American Press, 2009) on SSRN. Here is the abstract:

This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will."

It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult.

The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries?

There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes.

Highly recommended.

Full post as published by Legal Theory Blog on July 31, 2008 (boomark / email).