Academic

Legal Theory Lexicon: The Priority of the Particular

By Lawrence Solum

Introduction

One kind of legal theory attempts to relate the mass of legal materials (cases, clauses, statutes, etc.) to a systematic set of principles.  Such theories may be normative: that is, some legal theories are frameworks for the prescriptive evaluation of legal rules.  Or the theory might be doctrinal: some legal theories attempt to describe the results in particular cases through the articulation of a set of general rules or principles.  Finally, there are legal theories that combine the normative and the descriptive: Dworkin's interpretive theory of law aims at producing a general theory of law that best "fits" and "justifies" the legal materials.  In each of these three cases, there is a metatheoretical question: what role do particulars (e.g., judgments about or the outcomes of individual cases) play in relationship to the more abstract, general, and universal propositions that make up the theory?

This entry in the Legal Theory Lexicon examines "particularism"--the general view that particulars have priority over the general (or universal) in positive and/or normative legal theory.  As always, the Lexicon is written for law students, especially first year law students with an interest in legal theory.

The Basic Idea

Simplifying greatly, we can imagine two different relationships between the particular and the general in legal theory.  First, we might think that general propositions have priority, and that recalcitrant particulars must give way.  On this view, the legally correct outcomes in individual cases are determined by general propositions of law--for doctrinal theories.  And our moral intuitions about individual cases must give way to general moral propositions--for normative theories.  Second, we might think that the particular has priority, and that general theories are falsified if they conflict with individual cases.  On this view, the legally correct outcomes in individual cases are determined by the way that legal actors (e.g., judges) have treated those cases: if a general statement of the law (in a court's reasoning or a statute) conflicts with particular judgment, then the general statement must be abandoned or qualified--for doctrinal theories.  Similarly, for normative legal theories, the priority of the particular implies that normative legal theory must answer to intuitions (or perhaps considered judgments) about particular cases.  This second view of the relationship between the general and the particular is sometimes summarized by the phrase, "the priority of the particular."

A Puzzle About Particulars in Legal Theory

At this point, you might be thinking, "What is all the fuss about?" or "Why should we care about
the priority of the particular?"  Particularism is a metatheoretical view--it goes to the highly abstract question: how are theories about law confirmed or validated?  This is the kind of issue that lawyers rarely consider.  Even legal theorists rarely engage in systematic debate or discussion of this kind of question.  Nonetheless, there are some obvious puzzles about the relationship of particulars to general legal theories.  Consider the role of particulars (data or observations) in the empirical sciences.  If well-confirmed data conflict a scientific theory, there is a sense in which the theory is in serious trouble.  Of course, observation may be theory laden, and the interpretation of data is subject to revision.  But in some sense, we believe scientific theories are answerable to our particular beliefs about the world, and we don't think is is good scientific practice to "revise the data" in order to "fit the theory."

But in legal theory, the data does not seem recalcitrant in quite the same way.  If we have a powerful normative theory, then perhaps our intuitions are in error.  If we have a doctrinal theory that fits most of the cases, then perhaps the rest of the cases are in error.  Perhaps, but this sort of revision is called into question by the priority of particular.  Particularism suggests that our beliefs about individual cases may be more reliable than our general theories.

Pragmatism and Anti-Theory

Particularism in legal theory may be related to another big idea--"pragmatism" or "legal pragmatism."  Pragmatists tend be skeptical about the value of big theories, and for that reason may be attracted to particularism.  A similar set of attitudes about the value of abstract theorizing underlies what is sometimes called "anti-theory."  Perhaps we can do without general, abstract, and universal theories altogether.

Conclusion

The issues raised by the priority of the particular are deep ones, and this Lexicon post hardly limns their surface--much less resolves them.  If you are interested in these issues, there is a substantial literature on particularism in moral philosophy--that's a good place to begin a more systematic investigation of particularism.

Bibliography

Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy

Brad Hooker & Margaret Little (eds.), Moral Particularism (Oxford: Oxford University Press 2000)

Full post as published by Legal Theory Blog on March 09, 2009 (boomark / email).