Cambridge Legal Theory Discussion Group: 'Raffael N. Fasel: Legal Theory’s Procrustean Bed'

Abstract

Is there a universally correct way of doing legal theory? In my paper, I give reason to think that there is not. The paper centres on the work of Julie Dickson, the most prominent advocate of the thesis that there is a universally correct jurisprudential method (I call this the Universalism Thesis). According to Dickson, Indirectly Evaluative Legal Theory (IELT) is the universally correct approach to conducting legal theory. According to IELT, legal theorists evaluate the importance of legal phenomena but they do not evaluate their moral goodness or badness. Dickson illustrates IELT with examples from Joseph Raz’s legal theory but takes it to be true universally. My paper criticises Dickson’s endorsement of the Universalism Thesis by showing, first, that the different ways in which she believes to be able to separate important legal phenomena from unimportant ones without relying on judgments about moral goodness and badness are all question-begging. Second, the paper compares Dickson’s and Raz’s approach to legal theory with that of Ronald Dworkin in order to demonstrate that IELT is not compatible with Dworkin’s account of legal theory, which requires moral judgments. By showing that Dworkin’s approach to legal theory is at odds with IELT, the paper casts serious doubt on the Universalism Thesis.