Problems of Jurisprudence.pdf

I have endeavored to use the methods of analytic philosophy to guide a

critical appraisal of modern American law. My focus has been on the

twin preoccupations of the legal establishment in its rationalizing

moods. One is a preoccupation with the autonomy of legal reasoning

as a methodology of decision making. The other is a preoccupation with

objectivity-here used in the strong sense that persons with different

political or ideological commitments can nevertheless be brought to

agree on the answer to even the most testing, the most politically

charged, legal question-as a goal of the legal enterprise. I have empha-

sized the precarious position of the judge, forced to make unpopular

decisions-every judicial decision is unpopular with one of the parties

and with those in the same position as that party-without the intrinsic

authority of the more “organic” (popular, authentically sovereign)

branches of government from which the judiciary has studiously and

even ostentatiously separated itself in an effort to secure political inde-

pendence. The creation of an independent judiciary involves a substi-

tution of professionalism, of expertise, for political legitimacy and sets

up the eternal tension between law and politics in the discharge of the

judicial function, a tension mirrored on the jurisprudential plane in the

age-old dispute between Legalists and Skeptics.