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82 Iowa L. Rev. 739 (1996-1997)
Against Legal Principles

handle is hein.journals/ilr82 and id is 751 raw text is: Against Legal Principles* Larry Alexander & Ken Kress** I. INTRODUCTION Conventional Anglo-American jurisprudential wisdom accords legal principles central and even honorific status in determining how legal reasoning does and ought to proceed, and how cases are and ought to be interpreted and adjudicated. Reference to legal principles permeates both philosophical commentary on and doctrinal discussion of law, interpreta- tion, and adjudication. Indeed, reference to legal principles is a staple of the instruction of law students and of the arguments of practising lawyers. For many-including Ronald Dworkin-rules in effect drop out of the picture, leaving the field to principles.' Just as the nineteenth-century physicists invoked the ether to explain past observations and predict future ones, traditional legal reasoning and theories of interpretation invoke legal principles to explain the outcomes in past cases and to justify conclusions about how future cases should be decided. And like the invocation of the ether, the invocation of legal principles is misguided. Traditional theories of interpretation and legal reasoning, and the jurisprudential theories that build upon them, rest on a fundamental mistake. So, at least, we shall argue. We shall establish the case against legal principles as follows. In Section II, drawing heavily on the work of Ronald Dworkin, we shall describe various types of norms and show where legal principles fit within the universe of norm-types. In Section III, we shall point out the ubiquity of references to legal principles in jurisprudential literature, legal scholarship, and case law. We shall conclude that section by returning to Dworkin's jurisprudential theory, which is the most powerful extant theory that builds upon legal principles, in no small part because it so faithfully tracks traditional legal methodology. Then, in Section IV, we shall set forth different but ultimately related arguments for why legal principles cannot exist except perhaps as theoretically possible but practically inert entities. * Originally published as Larry Alexander & Ken Kress, Against Legal Principles, in Law and Interpretation: Essays in Legal Philosophy 279 (Andrei Marmor ed., 1995). Reprinted by permission of Oxford University Press. ** The authors would like to thank Steven Burton, William Edmundson, Brian Leiter, Frederick Schauer, and Jeremy Waldron for their helpful comments on the ideas discussed herein. 1. See Frederick Schauer, 'The Jurisprudence of Reason', 85 Mich. L. Rev. 847 (1987) (reviewing Ronald Dworkin, Law's Empire (1986)).

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