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2021 U. Chi. L. Rev. Online 1 (2021)
Some Doubts about Folk Jurisprudence: The Case of Proximate Cause

handle is hein.journals/uchidial89 and id is 265 raw text is: 08/23/21 U. Chi. L. Rev. Online *1

Felipe Jimenez*
This Essay offers a critique of folk jurisprudence, the focus on folk
understandings as a means to determine the content of the concept of law
and of legal concepts. Folk jurisprudence is characteristic of some
(though not all) forms of both armchair analytic philosophy and
experimental jurisprudence. Folk jurisprudence gets many things right.
For instance, it captures the fact that law and legal concepts are social
kinds that are sensitive to the ways in which agents conceptualize them.
However, folk    jurisprudence   gets  one   big  thing   wrong:   the
understandings that matter are not those of the population at large. The
legal system is a governance structure characterized by an artificial,
highly technical, and relatively arcane form of practical reasoning. Law
is not a practice of the folk; it is a practice of an elite of experts in law
legal officials. The concept of law is not the people's concept of law. It is
the concept of law of the legal officials who populate the governance
structure we call law and make that governance structure an
institutional reality. The same is true for legal concepts. Their meaning
depends on their use by law's personnel. This explains why legal
institutions are exposed to the risk of legal alienation. It also explains
why folk concepts are not determinative of the concept of law or legal
concepts and why attempts to determine the content of legal concepts by
appealing to folk understandings-like Professors Joshua Knobe and
Scott Shapiro's-are misguided and inevitably collapse into traditional
forms of legal argument. We might want law to be responsive to citizens'
views. We might also want to reduce legal alienation. Still, we should not
confuse what we would want to be the case with what is in fact the case.
According to a relatively common view, general jurisprudence is an
exercise aimed at understanding our ordinary concept of law.1 Despite
their differences, both positivist and anti-positivist views about the
nature of law commonly appeal to folk intuitions about the nature of law
in order to bolster their arguments. In the case of positivism, H.L.A.
Hart-perhaps the most influential legal philosopher of the twentieth
* Assistant Professor of Law and Philosophy, University of Southern California.
Many thanks to Anya Bernstein, Lewis Kornhauser, Alexandra Lahav,
Marcela Prieto, Anthony Sebok, Dan Simon, Kevin Tobia, Nina Varsava, and
Benjamin Zipursky for comments on previous drafts.

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