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Tennessee Law Review

Document Type

Article

Abstract

Legal Philosophy has long been concerned with the question of what brands a norm as legal, as opposed to a non-legal norm of justice or morality. This central question has occupied the attention of philosophers and lawyers for centuries. Roughly speaking, the Naturalist school contends that legal norms are inextricably intertwined with norms of morality and justice (and in its strongest form contends that law-like pronouncements that are immoral or unjust are not fully laws), while the Positivist school argues that a social construct (often called the Rule of Recognition) brands selected norms as legal, and thus legal norms may be just norms, but need not be. This article contends that Positivism has won the argument, though with the important caveat that a community's Rule of Recognition might condition the legality of norms on their morality or justness. While legal philosophy has of late been seen by some as walled off from legal doctrine, this article contends that modern debates about the legality of unenumerated constitutional rights are debates about the United States' Rule of Recognition. Thus, legal philosophy may have much to say about contemporary legal issues. This article argues that rather than the conventional framing of the central question as the relationship between law and morals, reframing it as between law and justice would improve the subject's comprehensibility and impact. The Supreme Court conservative majority's focus on "originalism" is less a theory of interpretation than a strategy to selectively narrow the United States' Rule of Recognition, particularly in constitutional cases. The Supreme Court is a substantially political institution, carrying out its work under the guise of interpretation, while in fact furthering a politically conservative agenda. Recognizing this, though unlikely to alter immediately the Court's course, could make a difference in the way that lawyers frame their arguments and how the Court's decisions are evaluated

Publication Date

2023

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