Document Type

Article

Publication Title

Maryland Law Review

Abstract

The argument that I have developed also indicates the possibility of closer ties between jurisprudence and democratic theory than have existed hitherto. Too often, analytical jurisprudence in the common law tradition, with its emphasis on courts and its depiction of the legislature as a disreputable, embarrassing and inconvenient sideshow, contrives to present the political provenance of our laws as a matter unworthy of philosophical notice. The impression we are given is that the question of provenance goes to the political credentials of the legislator, which may in turn determine the substantive content of legislation; but provenance appears largely irrelevant to the status of legislation as law or to the conception of law-as, for example, a general rule, a moral principle, or an interpretable text-which legislation exhibits. In the last analysis, that impression may be correct; that is, it may be the case that we can do all the philosophical and conceptual thinking that we need to do about law while ignoring the issue of who makes law and on what authority. But it is not something we are entitled to assume a priori. It is surely worth exploring the possibility that the nature of law reflects the conditions under which it is made. A legal system which vests final authority in an assembly comprising hundreds of representatives-and which does so as a way of expressing principles of popular sovereignty, self-government and democratic self-determination-may require a somewhat different sort of jurisprudence from that appropriate to a system dominated by the edicts a single, rational law-giver.

First Page

633

Volume

54

Publication Date

1995

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