The Possibility of Normative Jurisprudence: A Response to Brian Leiter
In a recent article Brian Leiter concluded that a useful normative theory of adjudication is impossible. A normative theory of adjudication would be a theory that, among other things, identified the moral and political norms that judges ought to follow in determining the law for any particular legal dispute. Letter's elegant and subtle argument, stripped to its bones, runs as follows: Philosophers of law regard a correct normative theory of adjudication as being dependent upon an antecedent descriptive theory. The dependence here, as Leiter describes it, is of a very strong sort and unique among philosophical theories: Any normative theory, to be acceptable, cannot depart from the actual practice of judges and lawyers. Consequently, the content of the normative side of the theory is simply to “continue to do what you've been doing,” supplemented, perhaps, by Holme's injunction to do it more selfconsciously and explicitly.
Richeimer, Joel and Madry, Alan, "The Possibility of Normative Jurisprudence: A Response to Brian Leiter" (1998). Legal Theory 4(2): 207-239. Faculty Publications. Paper 9.