the legal origins theory claims that the two main legal traditions or origins , civil law and common law , crucially shape lawmaking and dispute adjudication and have not been reformed after the initial exogenous transplantation by europeans .

therefore , they affect economic outcomes to date .

according to the evidence reported by the initial proponents of such a theory , countries that received civil law would display today less secure investor rights , stricter regulation , and more inefficient governments and courts than those that inherited common law .

these differences would reflect both a stronger historical emphasis of common law on private ordering and the higher adaptability of judge-made law .

recent contributions however have criticized the idea that transplanted legal institutions remained intact and have documented that indeed they evolve moved by how each country solves the trade-off between the uncertainty of judge-made law and the bias possibly injected into civil law by inefficient political institutions .

crucially , these latest studies show that considering both the endogeneity between legal traditions and the economy and the evolution of legal systems over time implies that civil law can often economically dominate common law .

legal origins theory

marmor , andrei ( 1998 ) . “legal conventionalism , ” 4 legal theory 509 .
bretherton i . the origins of attachment theory : john bowlby and mary ainsworth .
perhaps one day taiwan , too , will find it easier to make the conversion on account of its shared german legal origins with the mainland ( the german legal system had its own origins in french civil law ) . interestingly , 50 years under japanese occupation made no difference because japan’s legal system also had german origins .
for those who remain interested in attempts to discern connections between law reform and economic development along the lines suggested by legal origins theory , armour et al . urge a reconceptualization of the role of legal systems : “legal systems are not the independent , ‘exogenous’ force that legal origins theory takes them to be . legal systems are , to some degree , ‘endogenous’ in the sense of being shaped by their economic and political environment . ”
some have criticized such an interpretation and argued that legal origins are merely a proxy for culture or politics or something else . but the more impressive evidence is in favor of the legal origins theory because the influence of legal systems is present even after their introduction into foreign societies of different cultures and political arrangements through conquest and colonization . the legal systems are therefore involuntary transplants .
this idea that the legal system is the primary driver of different forms and styles of societal development comes from the legal origins theory that emerged out of the pioneering work developed chiefly by harvard economist andrei shleifer .
dickson , julie ( 2001 ) . evaluation and legal theory . oxford : hart publishing .
harris , j . w . ( 1979 ) law and legal science : an inquiry into the concepts legal rule and legal system . oxford : clarendon press .
while the bulk of the corpus is in ethical and political theory and the related fields of legal theory and applied ethics , work on promises has also been done in the philosophy of language , action theory , rationality theory , game theory and other areas .
campbell , tom ( 1996 ) . the legal theory of ethical positivism . dartmouth : aldershot .
the fundamental strategies and assumptions of each legal system can therefore survive even when there is much local legal evolution , and continue to exert substantial influence not only on financial development , but also other social and economic outcomes . this accounts for the lasting influence of legal origins .
shapiro , scott ( 1998 ) . “on hart ' s way out , ” 4 legal theory 469 .
critics of legal origins theory will not be surprised to learn that the cambridge group finds little support for the theory in longitudinal data . while shareholder protections and corporate governance standards have been strengthened worldwide – reflecting the efforts of civil law countries to catch up with common law countries – these legal changes have not resulted in more dispersed share ownership and increased stock market activity , as predicted by legal origins theory . according to armour et al . , these considerable legal reforms suggest that “lock - in through legal origin has not been much of an obstacle to the formal convergence of systems . ” more importantly , legal reforms have not led to greater economic development . the authors offer alternative interpretations of their results :
boyce w , ellis bj . biological sensitivity to context : i . an evolutionary - developmental theory of the origins and functions of stress reactivity .
edward glaeser and andrei shleifer , “legal origins” , quarterly journal of economics , vol . 117 , no . 4 , 2002 , pp . 1193 - 1229 .
gordley , james , 1991 , the philosophical origins of modern contract doctrine , oxford : clarendon press .
‘legal origin theory is a very useful collection for anyone trying to get to rips with the legal origin theory debate , which is still of course on - going as no final arguments have yet been presented . the editors’ introduction is very useful . . . ’ – jaakko husa , comparative legal history
legal origins theory is a view which grew away from leximetrics studies . it argued that numerous aspects of a country’s economic state of development are the consequence of their legal technique , most of all where a particular country gotten its law via . the first papers on the theory were released from 1997 onwards by several economists and fiscal researchers around andrei shleifer .
while many legal scholars have dismissed this work because of its naïve assumptions about law and legal change , especially in early papers , a group of legal scholars at cambridge university – led by simon deakin , john armour , and ajit singh – took legal origins theory seriously . embracing the assumption that legal rules could be measured and quantified ( “leximetrics” ) , the cambridge group produced legally sophisticated datasets on shareholder protection , creditor protection , and labor regulation . in law and financial development : what we are learning from time - series evidence , published as part of a recent symposium on legal origins theory in the byu law review , four members of the cambridge group take stock of what we have learned from those datasets and chart some new directions for future research .
perry , stephen ( 1989 ) . “second order reasons , uncertainty , and legal theory , ” 62 southern california law review 913 .
rafael la porta , florencio lopez - de - silanes , and andrei shleifer , “the economic consequences of legal origins , ” journal of economic literature , 2008 , 46 : 2 , 285 - 332 .
soper , philip ( 1977 ) “legal theory and the obligation of a judge : the hart / dworkin dispute” 75 michigan law review 473 .
, in 1905 , to which horwitz attributes widespread crystallizing effects - - had much to do with sparking legal theory ' s version of progressivism .
legal systems exert lasting influence in their societies because differences in their styles of social control inform the creation of not only specific legal rules , but also the organization of the legal system and the education and training of the participants in the legal system . when common and civil law were transplanted into much of the world , this also involved transferring not just specific legal rules but also legal institutions . most important of all , the styles of the law in dealing with new problems were also transferred .
in the late 1990s , rafael la porta , florencio lopez - de - silanes , andrei shleifer , and robert w . vishny ( “llsv” ) launched a research project examining connections between legal rules governing investor protection and economic development . working on the assumption that legal rules could be measured and quantified , llsv purported to demonstrate that common law countries were more protective of outside investors – and , thus , more hospitable to economic development – than civil law countries . in the ensuing years , llsv and other economists have expanded and refined their work , constructing the grandly named legal origins theory , which holds that legal systems are important determinants of economic development . the influence of legal origins theory is not confined to economics journals , but may be seen in policy reforms through the world bank’s doing business reports .
cite as : d . gordon smith , taking legal origins theory seriously , jotwell ( january 7 , 2011 ) ( reviewing john armour et al . , law and financial development : what we are learning from time - series evidence ( 2010 ) , at ssrn ) , urltoken .
contemporary philosophy , critical theory and postmodern thought , web site on critical theory , maintained by martin ryder ( u . colorado )
polan hj , hofer ma . psychobiological origins of infant attachment and its role in development . in : cassidy j , shaver pr , editors .
for an excellent overview of these issues , see chapter 1 of james gordley ' s the philosophical origins of modern contract doctrine ( 1991 ) .
. duncan kennedy , the rise and fall of classical legal thought ( unpublished ms . ) .
coleman , jules ( 1982 ) “negative and positive positivism , ” 11 journal of legal studies 139 .
waluchow , w . j . ( 1994 ) . inclusive legal positivism . oxford : clarendon press .
––– , 2012 , “is there a reason to keep promises” , no . 12 - 320 , research paper series , columbia university public law & legal theory , columbia law school .
this prediction is consistent with novel data from 155 transplants , many of which reformed the transplanted legal tradition .
––– , 2004 , divine motivation theory , new york : cambridge university press .
––– , 2003 . “how to make a social science practical : critical theory , pragmatism , and multiperspectival theory , ” millennium , 21 ( 3 ) : 499–524 .
gardner , john ( 2001 ) “legal positivism : 5 ½ myths , ” 46 american journal of jurisprudence 199 .
brandt , richard , 1959 , ethical theory , englewood cliffs : prentice hall press .
––– , 2006 , a theory of virtue , new york : oxford university press .
kramer , matthew ( 1999 ) . in defense of legal positivism : law without trimmings . oxford : clarendon press .
marshall , w . l . , & marshall , l . e . ( 2000 ) . the origins of sex offending . trauma , violence , and abuse , 1 , 250–263 .
––– , 2015 , “a pluralist theory of virtue” , in mark alfano ( ed . ) , current controversies in virtue theory , new york : routledge , pp . 7–21 .
fraley rc , roisman gi , booth - laforce c , tresch owen m , holland as . interpersonal and genetic origins of adult attachment styles : a longitudinal study from infancy to early adulthood .
––– , 1971 , a theory of justice , cambridge , ma : harvard university press .
leiter , brian ( 1997 ) . “rethinking legal realism : toward a naturalized jurisprudence , ” 76 texas law review 267 .
. it will be interesting to consider the issues in light of natalie e . hull ' s argument that progressive jurisprudence failed as legal theory , and primarily should be regarded as a pedagogic movement in the law schools .
' s diet . in part , this is an outgrowth of the periodization - - the comparatively thin resources of the antebellum academic legal culture provided much less basis for the intellectual history of legal theory than the comparatively well - developed legal culture of the period from 1870 - 1960 , and horwitz therefore had to seek his data in the earlier volume among the stony soils of the state appellate courts . but there is a more profound difference here . for while law is still not an autonomous intellectual discipline in horwitz ' new structures of explanation , the internal dynamic of legal ideas is the true subject of
––– , 1995 , “does moral subjectivism rest on a mistake ? ” , oxford journal of legal studies , 15 : 1–14 .
454 ( 1909 ) . horwitz treats this article as the effective beginning of progressive legal thought . pp . 33 - 34 .
mccarthy , t . and d . hoy , 1994 . critical theory , london : basil blackwell .
geuss , r . , 1981 . the idea of a critical theory , cambridge : cambridge university press .
linklater , a . , 2001 . “the changing contours of critical international relations theory , ” critical theory and world politics , r . w . jones ( ed . ) , london : lynne reinner , 23–44 .
sroufe la , carlson ea , levy ak , egeland b . implications of attachment theory for developmental psychopathology .
clarke , bridget , 2010 , “virtue and disagreement” , ethical theory and moral practice , 13 : 273–91 .
miller , christian , 2013 , moral character : an empirical theory , new york : oxford university press .
hohfeld , w . , 1919 , 1964 , fundamental legal conceptions , w . cook ( ed . ) , new haven : yale university press .
but if natural rights and other subjectivist legal theories threatened chaos , the austinian alternative was pregnant with the possibility of tyranny . horwitz conceives holmes ' intellectual development in terms of conflicting attempts to navigate between this scylla and charybdis of postwar theory . the solution attempted by
––– , 1972 . critical theory , new york : seabury press ; reprinted continuum : new york , 1982 .
the first integrated theory of sexual offending behavior was put forth by finkelhor in 1984 . finklehor ' s theory , which applies only to child sexual abuse , outlines four preconditions that must exist for a sex offense to occur :
hoekstra , k . , 1997 , “hobbes and the foole” political theory , 25 ( 5 ) : 620–654 .
pettigrove , glen , 2007 , “ambitions” , ethical theory and moral practice , 10 ( 1 ) : 53–68 .
snow , nancy , 2010 , virtue as social intelligence : an empirically grounded theory , new york : routledge .
as a practical matter , legal theory continues to be a source of much of the best academic work on promises and related phenomena , with scholars like markovits ( 2011 ) , shiffrin ( 2008 , 2012 ) , pratt ( 2007 , 2013 ) and many others contributing .
aron , raymond , 2003 . war and peace : a theory of international relations , new brunswick : transaction publishers .
––– , 1984 , 1987 . the theory of communicative action , volumes 1 and 2 . boston : beacon press .
dykas mj , cassidy j . attachment and the processing of social information across the life span : theory and evidence .
the problem of sexual offending is too complex to attribute solely to a single theory ( multifactor theories are stronger ) .
owens , david , 2006 , “a simple theory of promising” , philosophical review , 115 ( 1 ) : 51–77 .
––– , 1985 , expression and meaning : studies in the theory of speech acts , cambridge ; cambridge university press .
he etiology of adult sexual offending refers to the origins or causes of sexually abusive behavior , including the pathways that are associated with the behavior ' s development , onset , and maintenance . even though questions about the causes of sexual offending have been asked for many years , they remain important today , primarily because definitive answers have been exceptionally hard to find . while research has generated important insights about the etiology of sexual offending , our understanding of the causes and origins of sexually abusive behavior arguably remains rudimentary .
in this volume , professor deakin and professor pistor include those key articles which highlight the major contributions to , but also the inherent limits of , the legal origin literature . they consider the merits of this approach in the context of three fields of inquiry : the study of comparative law ; the analysis of the relation between law and markets ; and the understanding of the role of legal systems in social ordering . in their thought - provoking new introduction , the editors discuss the modifications to the original legal origin hypothesis over time and point the way for the future development of this influential , yet controversial , theory .
kimel , dori , 2003 . from promise to contract : toward a liberal theory of contract , oxford : hart publishing .
––– , 2010 , “a theory of virtue : response to critics” , philosophical studies , 148 ( 1 ) : 159–65 .
the relationship between the law , contracts and promises is a long and tangled one . from its ancient origins promissory theory has been intertwined with issues of contracts and agreements more generally . and since at least the time of aquinas and especially with the works of the later natural lawyers like grotius and pufendorf , scholarly work on promising has been done at least in part with an eye towards informing the law of contract . this in turn gave rise to a tradition on the part of legal theorists of surveying such scholarship in their work on both historical and contemporary issues in the law of contract . finally , the law itself has methods for dealing with promises ( as they are obviously the sorts of things that might lead to legal wrangling ) . thus the legal practice regarding promises has some interest to theorists of promising as well . the result is two interlinked scholarly traditions and bodies of work .
legal origins provides an obvious explanation as to why it has been so much easier for macau to make the conversion to mainland rule , for its people had long been accustomed to the civil law tradition introduced by the portuguese colonists . it also means that the people of hong kong have failed miserably in understanding and appreciating chinese habits of thought and the influence of its civil law tradition . sadly so has beijing in misunderstanding hong kong .
hooker , brad , 2000 , ideal code , real world : a rule consequentialist theory of morality , oxford : clarendon press .
merritt , m . , 2000 , “virtue ethics and situationist personality psychology” , ethical theory and moral practice , 3 : 365–83 .
stichter , matt , 2011 , “virtues , skills , and right action” , ethical theory and moral practice , 14 : 73–86 .
this movement in the direction of abstract conceptualization that horwitz calls
classical legal thought
thus served both to strengthen the conformity of legal theory to the central dogma of an apolitical rule of law , and to cushion the legal system against the intellectual effort necessary to adjust to extraordinary changes in social reality . conceptualism in the law of tort and contract , in horwitz ' account , allowed doctrines that diverged from the norms of negligence and the will theory of contract formation to be shunted aside , as anomalous outcomes of historical contingency or the results of past judicial confusion . this removed pressure to use such doctrines in new and explicitly redistributive ways , as counterweights against the explosive growth of private economic power in the postwar industrialization . for horwitz , the early writings of oliver wendell holmes , and particularly
kelsen , hans ( 1967 ) . pure theory of law , trans . m . knight . berkeley : university of california press .
pashukanis , evgeny ( 1983 ) law and marxism : a general theory . trans . b . einhorn . london : pluto press .
bloomfield , paul , 2014 , the virtues of happiness : a theory of the good life , new york : oxford university press .
––– , 2014 , “virtue ethics , virtue theory , and moral theology” , in van hooft ( 2014 ) , pp . 88–104 .
sreenivasan , gopal , 2002 , “errors about errors : virtue theory and trait attribution” , mind , 111 ( january ) : 47–68 .
it demonstrates that legal systems exercise pervasive and persistent influence not only over finance , but also the economic life of a place , the beliefs of its people , and its politics .
the legal system supplies the fundamental tools for addressing economic and social problems and it is that system , with its codes , distinctive institutions , modes of thought and beliefs , and the education and training of its participants , that is very slow to change . in more stable areas of law , such as legal procedure , there is sometimes a great deal of rigidity .
hall and hirschman ' s theory is based on sound empirical research about the traits of sex offenders , including the use of cognitive distortions , the presence of poor impulse control , and problems with self - regulation of emotions and mood . additionally , the notion that individual offenders display contrasting problems has empirical support . nevertheless , the theory has serious limitations . one significant shortcoming is the failure of the theory to adequately explain the relationships that exist and interactions that take place among the theory ' s four etiological factors . another shortcoming is the theory ' s inability to identify causal mechanisms behind each factor . a third is the theory ' s failure to explain how the factors function as motivations to abuse ( ward , 2000 ; ward , polachek , & beech , 2006 ; stinson , sales , & becker , 2008 ) . ward ( 2001 ) also argues that hall and hirschman seem to confuse typology with theory . ( for an explanation of
sex offender typologies ,
see chapter 3 in the adult section . ) taken together , these shortcomings significantly limit the theory ' s etiological and clinical utility .
a key feature of a legal system is the set of institutions used to aggregate the citizens’ preferences over the harshness of punishment , i . e . , the legal tradition . while under common law appellate judges’ biases offset one another at the cost of volatility of the law , under civil law the legislator chooses a certain legal rule that is biased only when he favors special interests , i . e . , when preferences are sufficiently heterogeneous and / or the political process is sufficiently inefficient . hence , common law can be selected only under this last scenario . this prediction is consistent with a novel dataset on the lawmaking and adjudication institutions in place at independence and in 2000 in 155 transplants , many of which reformed the transplanted legal tradition .
the work of the cambridge group is an important part of the most significant research advance on corporate governance since the advent of law and economics in the 1970s and 1980s . the analysis by the cambridge group has called into question many of the central tenets of legal origins theory , but in my view , the more important long - term contributions of this work are twofold : ( 1 ) the work has gone a long ways toward legitimating “leximetrics” in studies of comparative corporate governance , and ( 2 ) the work has reignited interest in comparative corporate governance , a field that has traditionally suffered from a perceived lack of rigor .
recent empirical work shows that countries whose legal systems are based on english common law differ systematically from those whose legal systems are based on french civil law . glaeser and shleifer trace this divergence to england ' s adoption of the jury system and france ' s adoption of romano - canonical procedure in the twelfth and thirteenth centuries [ glaeser , edward l . , shleifer , andrei , 2002 . legal origins . quarterly journal of economics 117 , 1193–1229 ] . they argue that these choices implied greater centralization of justice in france than in england . we examine the historical evidence in detail and find that there was no attempt to decentralize litigation in medieval england , and in fact , prior to the french revolution , justice was more centralized in england than in france . the different trial procedures , moreover , did not put the two countries ' legal systems on sharply different paths . rather , the systems diverged as the result of political choices made in the mid - seventeenth through early nineteenth centuries . journal of comparative economics 35 ( 2 ) ( 2007 ) 278–293 .
: the book was subjected to extremely searching and ultimately quite successful destructive criticism , while at the same time it dominated the field of american legal history for more than a decade , as no book had before , or has since . like almost all other historians of american law trained in the years following 1977 , my education in the craft of legal history was decisively affected by the
another corollary is respect for the freedom of contract , including the ability of judges to interpret contracts without reference to public interest . still another was the reassertion of the ability of appellate common law courts to make legal rules , thereby becoming an independent source of legal change separate from parliament . judicial independence and law - making powers in turn made judging a highly attractive and prestigious occupation .
mikulincer m , shaver pr . attachment theory and intergroup bias : evidence that priming the secure base schema attenuates negative reactions to out - groups .
binmore , ken , 1994 , playing fair ( game theory and the social contract ; vol . 1 ) , cambridge : the mit press .
in other respects , too , classicism in the postwar legal culture attempted to evolve conceptualist solutions for problems spawned by the rapidity of social and economic change . two such explorations of the conceptual frontier are accorded particularly extended treatment in horwitz ' account : the evolution of a theory of corporate personality , and the development of new conceptions of property .
in the next two sections , i will discuss two aspects of this transformed conception of critical theory . first , i turn to the role of social theory in this more pragmatic account of critical social inquiry . contrary to its origins in marxian theoretical realism , i argue for methodological and theoretical pluralism as the best form of practical social science aimed at human emancipation . second , i illustrate this conception in developing the outlines of a critical theory of globalization , in which greater democracy and nondomination are its goals . this theory also has a normative side , which is inquiry into democracy itself outside of its familiar social container of the nation state . in this sense , it attempts not just to show constraints but also open possibilities . critical theorists have failed not only to take up the challenge of such new social circumstances but also thereby to reformulate democratic ideals in novel ways . i shift first to the understanding of the philosophy of social science that would help in this rearticulation of critical theory as critical social inquiry as a practical and normative enterprise .
ellis bj , boyce w , belsky j , bakermans - kranenburg mj , van ijzendoorn mh . differential susceptibility to the environment : an evolutionary–neurodevelopmental theory .
svensson , frans , 2010 , “virtue ethics and the search for an account of right action” , ethical theory and moral practice , 13 : 255–71 .
finnis , john ( 1996 ) . “the truth in legal positivism , ” in the autonomy of law , ed . robert p . george . oxford : clarendon press , pp . 195 - 214 .
given the relatively recent introduction of the multimodal self - regulation theory , there is a paucity of empirical research regarding its validity . however , there is empirical support for many tenets of the theory , including the roles that negative developmental experiences , cognitive distortions , and a lack of emotional control play in sexual offending . still , some of the linkages hypothesized in the theory have been criticized for being implausible ( a criticism the authors themselves acknowledge ) because deviant sexual interests are not found among all sex offenders , making it difficult to generalize the theory to the larger sex offender population ( stinson , sales , & becker , 2008 ) . far more evaluative research needs to be undertaken before the validity and utility of the multimodal self - regulation theory can be determined .
in this volume , professor deakin and professor pistor include those key articles which highlight the major contributions to , but also the inherent limits of , the legal origin literature . they consider the merits of this approach in the context of three fields of inquiry : the study of comparative law ; the analysis of the relation between law and markets ; and the understanding of the role of legal systems in social ordering .
there are several other issues being discussed in contemporary promissory theory . what follows is a quick listing of some major ones , with references for further research .
the story that horwitz wishes to tell in the present volume concerns the consolidation in the post - civil war period of a high classical style in american legal thought , and the subsequent decay of that classicism under the impact of rapid socioeconomic and intellectual change . as a rough periodization , horwitz dates the beginning of concerted external attack on legal classicism at 1905 , with the hostile response to the supreme court ' s decision in
evaluative argument is , of course , central to the philosophy of law more generally . no legal philosopher can be only a legal positivist . a complete theory of law requires also an account of what kinds of things could possibly count as merits of law ( must law be efficient or elegant as well as just ? ) ; of what role law should play in adjudication ( should valid law always be applied ? ) ; of what claim law has on our obedience ( is there a duty to obey ? ) ; and also of the pivotal questions of what laws we should have and whether we should have law at all . legal positivism does not aspire to answer these questions , though its claim that the existence and content of law depends only on social facts does give them shape .
kelsen , hans ( 1928 ) “the idea of natural law , ” in his essays in legal and moral philosophy ( 1973 ) ed . o . weinberger , trans . p . heath . dordrecht : reidel .
––– , 1938 . logic : the theory of inquiry . the later works : 1938 , volume 12 , carbondale il : southern illinois university press , 1986 .
miller hb , miller l , bjorklund d . helping military children cope with parental deployment : role of attachment theory and recommendations for mental health clinicians and counselors .
legal systems reflect different styles of control over economic and social activities . the common law strategy seeks to support private and market - originated initiatives , whereas civil law seeks to replace such outcomes with state - desired outcomes .
so the nation turned around . horwitz adds new depth of description to our account of the nation ' s postwar hostility to modernism , as it related to our legal thought . he convincingly connects recantatory statements by llewellyn and others to the more severe forms of postwar intellectual repression . he neatly demonstrates the relationship between process - based postwar democratic theory , emptied of substantive commitments to such matters as equality , and the
legal process
approach of hart and sacks , which trained a generation of lawyers and ( more ominously ) law professors . most importantly , he shows how the astonishingly hostile academic response to
kelsen , hans ( 1945 ) . general theory of law and state , trans . a . wedberg , repr . 1961 . new york : russell and russell .
sykes , g . , & matza , d . ( 1957 ) . techniques of neutralization : a theory of delinquency . american sociological review , 22 , 664–670 .
recently daniel freiderich and nicholas southwood ( freiderich and southwood 2009 ; southwood and freiderich 2011 ) have put forward a version of an assurance theory they call a trust theory . this theory that attempts to capture the intuitive appeal of the view while handling some of these difficulties . they argue that what is crucial to incurring obligation is the ‘invitation’ to trust that promising embodies , and that as such actual trust isn ' t necessary to generate the obligation ( southwood and freiderich 2011 : 278 ff ) .
––– , 2010 , “comments on robert adams , a theory of virtue : excellence in being for the good” , philosophical studies , 148 ( 1 ) : 147–158 .
fuesser , klaus ( 1996 ) , “farewell to ‘legal positivism’ : the separation thesis unravelling , ” in the autonomy of law , ed . robert p . george . oxford : clarendon press , pp . 119 - 162 .
the attack on orthodoxy proceeded through the era of the first world war under the banner of progressive jurisprudence , and was completed , with the essential destruction of classical legal thought , under the standard of legal realism in the era of the new deal . in the period from 1945 to 1960 , however , horwitz locates an anti - realist revival of orthodoxy , inspired at least in significant part by the ideological stresses of the cold war . as in the
––– , 2006 , “virtue ethics” , in david copp ( ed . ) , the oxford handbook of ethical theory , oxford : oxford university press , pp . 515–36 .
in reality , however , legal positivism is not to be identified with either thesis ; both are false . there are many necessary “connections , ” trivial and non - trivial , between law and morality . as john gardner notes , legal positivism takes a position on only one of them ; it rejects any dependence of the existence of law on its merits ( gardner 2001 ) . and with respect to this dependency relation , legal positivists are concerned with much more than the relationship between law and morality , for in the only sense in which they insist on a separation of law and morals they must insist also - - and for the same reasons - - on a separation of law and economics .
recognizing that these deep differences are rooted in the incongruences of the two legal systems could be a first step toward political dialogue that could lead to accommodation . successful resolution of these conflicts through this approach would be beneficial for all parties .
critical theory has a narrow and a broad meaning in philosophy and in the history of the social sciences . “critical theory” in the narrow sense designates several generations of german philosophers and social theorists in the western european marxist tradition known as the frankfurt school . according to these theorists , a “critical” theory may be distinguished from a “traditional” theory according to a specific practical purpose : a theory is critical to the extent that it seeks human “emancipation from slavery” , acts as a “liberating … influence” , and works “to create a world which satisfies the needs and powers” of human beings ( horkheimer 1972 , 246 ) . because such theories aim to explain and transform all the circumstances that enslave human beings , many “critical theories” in the broader sense have been developed . they have emerged in connection with the many social movements that identify varied dimensions of the domination of human beings in modern societies . in both the broad and the narrow senses , however , a critical theory provides the descriptive and normative bases for social inquiry aimed at decreasing domination and increasing freedom in all their forms .
, not the role of the law in underwriting particular forms of socio - economic development . so that , while the preface and introduction make no explicit statement on this point , the present work is also part of the movement back toward intellectual history , away from the
new social history
of which we had at least enough in the years from 1965 to 1985 . though surely a book about people ( including most prominently oliver wendell holmes , roscoe pound , and karl llewellyn ) , the primary agents in the history horwitz wants to recount are classical legal thought , progressive jurisprudence , and legal realism . our leading legal historian is now practicing the history of ideas , and this too is cause for great celebration .
the empirical evidence produced to date does not indicate that the presence of a particular biological phenomenon has a causal relationship with sexual offending . however , biological studies are still relatively new . with improved methodologies , future research may demonstrate that certain aspects of biological theories yield beneficial information for understanding and explaining the origins of sexual offending behavior ( stinson , sales , & becker , 2008 ) .
. the idea of custom as a source of law has a fascinating history in american legal thought . i hope someday to write a book about it . i believe that the rise and decline of interest in custom to mediate the strains of post - civil - war legal development - - in which horwitz is interested - - constitutes a last revival and senescence of the concept , in terms of whose earlier history the antebellum confrontation over codification and the common law should largely be seen .
perhaps the first question on the mind of legal and philosophical historians is the issue of the degree to which , if any , contractual obligations are grounded in promissory obligations in contemporary legal regimes . this question is complicated by the different traditions and cultures involved in the long path to contemporary law , i . e . , natural law theory , virtue theory , rights theory , the ( anglo ) common law , the continental civilian law , canon law and other theoretical approaches , which are in turn variously situated in the uk , on the european continent , and in the anglo territories ( scotland , australia , canada the us , etc . ) . the answer to the question is different in different traditions and places , and the contemporary law is the result of some complicated amalgamation of these different traditions over time . for an overview of these issues , see , e . g . , swain ( 2013 ) , ibbetson ( 1999 ) , gordley ( 1991 ) , simpson ( 1975 ) , or fried ( 1981 ) .
it may clarify the philosophical stakes in legal positivism by comparing it to a number of other theses with which it is sometimes wrongly identified , and not only by its opponents . ( see also hart , 1958 , fuesser , and schauer . )
the above survey divides theories of promissory obligation along the lines of the underlying moral theory , and this is a useful taxonomical approach given that promissory obligations are to be explained as a type of moral obligation . but another way of classifying these theories found in the literature ( cf . r . s . downie 1985 ; atiyah 1981 ; vitek 1993 ; shiffrin 2008 ; owens 2012 ) makes reference to the different approaches to promissory obligations in particular . this sort of taxonomy allows us to see the shape of the promissory theories more clearly , and allows us to classify objections as either directed at the promissory theory directly , or at the underlying moral theory . most of the objections listed above are examples of the latter sort of critique . in this section i will outline some of the former . the promissory taxonomy is also useful for highlighting philosophical work on particular issues in promissory theory as well as the work in related disciplines , such as legal theory , that are germane to one or another theoretical approach . ( see vitek 1993 : 5ff & 243 fn 40 for discussion of the taxonomy , and shiffrin 2008 : 482–484 for a discussion of conventionalism in particular ) .
there are many difficulties with this , not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place . one cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm . we need a way into the circle . moreover , it draws the boundaries of legal systems incorrectly . the canadian constitution of 1982 was lawfully created by an act of the u . k . parliament , and on that basis canadian law and english law should be parts of a single legal system , rooted in one basic norm : ‘the ( first ) u . k . constitution is to be obeyed . ’ yet no english law is binding in canada , and a purported repeal of the constitution act by the u . k . would be without legal effect in canada .
habermas wants to straddle the divide between the kantian and the hegelian approaches in his social theory of modernity . why not see habermas ' s theory of rationality as providing both a theoretical and practical basis for critical theory ? certainly , this is how habermas sees the purpose of such a theory ( habermas 1984 , chapter 1 ) . yet even if this theory of rationality has to be understood in this way , it would still have to avoid what rorty calls “the ambiguity of rationality , ” between its statuses as “a cognitive faculty and a moral virtue . ” for this reason , rorty keeps them distinct . “the epistemological notion of rationality concerns our relation to something nonhuman , whereas the moral notion concerns our relations to our fellow human beings” ( rorty 1996 , 74 ) . in a way similar to recent arguments in putnam , habermas now more strongly distinguishes between claims to truth and the context of justification in which they are made , even as he also wants to reject moral realism .
––– , 2002 . “critical theory as practical knowledge , ” blackwell companion to the philosophy of the social sciences , paul roth and stephen turner ( eds . ) , london : blackwell , 91–109 .
further , as lon fuller and william perdue pointed out in an influential 1939 article “the reliance interest in contract damages” , the damages awarded by courts to those who have had a promise or contract broken is best understood as being proportional to the harm the plaintiff suffered in relying on the promise . these and other considerations argue for a theory of promises based on expectations and reliance , i . e . , an expectational theory , as opposed to one based on conventions or natural duties , and this is what a number of philosophers and legal theorists have done . this debate has spawned a sizeable literature ( see swain 2013 for a good overview of this work ) .
the 17 th century saw the emergence of a new strand of moral theory , one that employed the notion of a mutual agreement or contract between the members of a community as a device for grounding moral principles . this ‘social contract’ movement also produced new approaches to promissory theory , but we should preface our discussion of these by distinguishing between two different types of projects that have historically occupied social contract theorists .
we investigate the evolution of common law under overruling , a system of precedent change in which appellate courts replace existing legal rules with new ones . we use a legal realist model , in which judges change the law to reflect their own preferences or attitudes , but changing the law is costly to them . the model ' s predictions are consistent with the empirical evidence on the overruling behavior of the us supreme court and appellate courts . we find that overruling leads to unstable legal rules that rarely converge to efficiency . the selection of disputes for litigation does not change this conclusion . our findings provide a rationale for the value of precedent , as well as for the general preference of appellate courts for distinguishing rather than overruling as a law - making strategy . journal of comparative economics 35 ( 2 ) ( 2007 ) 309–328 .
multimodal self - regulation theory was recently introduced as an etiological explanation of sexual offending by stinson , sales , and becker ( 2008 ) . the theory integrates various psychological perspectives and implicates self - regulatory deficits as a key variable in the development of sexually inappropriate interests and behaviors . as part of the theory , stinson , sales , and becker ( 2008 ) argue that significant self - regulatory deficits resulting from negative childhood experiences combine for the development of deviant sexual interest and arousal . when certain biological and temperamental vulnerabilities are also present , the individual is unable to manage his or her behavior and sexual offending can result .
in addition to this work , there is also a corpus of work on promises in game theory and economic theory , stemming from the contractarian project of grounding promissory obligation in self - interested rationality . some important elements of this literature are harsanyi ( 1955 ) , gauthier ( 1986 ) , hardin ( 1988 ) , narveson ( 1988 ) , binmore ( 1994 ) , skyrms ( 1996 ) and verbeek ( 2002 ) .
hall , g . c . n . , & hirschman , r . ( 1991 ) . toward a theory of sexual aggression : a quadripartite model . journal of consulting and clinical psychology , 59 , 662–669 .
the contrast between the two legal systems is most prominent in terms of their influence on financial market development . the fact that after two centuries of modernization , london is an international financial center but paris is not , speaks volumes about the difference between british common law and french civil law .
there are two common , general answers to the question of what defines these distinctive features of critical social inquiry : one practical and the other theoretical . the latter claims that critical social inquiry ought to employ a distinctive theory that unifies such diverse approaches and explanations . on this view , critical theory constitutes a comprehensive social theory that will unify the social sciences and underwrite the superiority of the critic . the first generation of frankfurt school critical theory sought such a theory in vain before dropping claims to social science as central to their program in the late 1940s ( wiggershaus 1994 ) . by contrast , according to the practical approach , theories are distinguished by the form of politics in which they can be embedded and the method of verification that this politics entails . but to claim that critical social science is best unified practically and politically rather than theoretically or epistemically is not to reduce it simply to democratic politics . it becomes rather the mode of inquiry that participants may adopt in their social relations to others . the latter approach has been developed by habermas and is now favored by critical theorists .
in the last 20 years , t . m . scanlon has outlined a comprehensive and detailed version of expectational promissory theory that has become widely influential . scanlon ' s theory is taxonomically interesting , in that while he adopts an expectational theory of promissory obligation , his underlying normative theory is straightforwardly contractualist . scanlon proposes that the operative moral rules are those that no one at the bargaining table could ‘reasonably reject’ . scanlon claims that promissory obligations derive from another sort of more basic moral obligations , specifically obligations not to ‘unfairly manipulate’ others . one has a moral duty to keep one ' s promises because making a promise will lead others to believe that you will do what you promise . breaking the promise is then tantamount to deceiving those one promised , and since one has a moral duty not to do this , one has a moral duty to keep one ' s promises .
there are , to be sure , changes in the content of holmes ' thought over the period of twenty years during which this greatest of american legal minds matured . horwitz is quite right to call attention to changes in holmes ' ideas about the validity of custom as a source of law .
evolutionary theories have been proposed to explain a variety of human behaviors , including sexual aggression . evolutionary theory views human behavior as the result of millions of years of adaptive changes designed to meet ongoing challenges within the environment .
freund , k . , & kuban , m . ( 1994 ) . the basis of the abused abuser theory of pedophilia : a further elaboration on an earlier study . archives of sexual behavior , 23 , 553–563 .
for horwitz , whose historical grasp is stronger as his description is more sophisticated , the process is much more complicated . the classical tradition itself put pressure on ideas of natural right , through an increasingly objectivist set of conceptions ; its critics , from holmes on , were relentlessly concerned with attacking the central dogma of american law - - its separation from politics - - at the natural - rights root from which it grew . indeed , to the extent one restores continuity to holmes ' thought , qualifying horwitz '
early
and
late
models more thoroughly than he does himself , the whole of the attack on legal orthodoxy turns out to have its intellectual origins in the doubts the disillusioned post - civil - war generation felt about the concept of natural rights .
the most often cited criticism of social learning theory is that there is little evidence that suggests internalized beliefs or attitudes actually result in related behaviors . more research on children who are victimized but do not go on to abuse others may be helpful . further , much of the research on social learning theory , as in many other theoretical approaches , depends on self - reports of abusers . because offenders may be motivated to distort stories to place themselves in a more positive light , relying on self - reporting can be problematic . these concerns call into question the validity of social learning theory as the sole explanation of sexually abusive behavior ( stinson , sales , & becker , 2008 ) .
, it was supporting the growth of a legal
formalism ,
which allowed the victors in decades of prior socio - political struggle in the legal system to present and defend their gains as neutral consequences of logically consistent rules . horwitz does not explicitly state in the present book whether he adheres to his prior view of formalism in the immediate antebellum period , but in any event there is no inconsistency between that position and the architecture of postwar classicism as he now describes it . classicism , whatever its relation to antebellum formalism , rested on a new set of intellectual devices for creating the separation between law and politics .
the first project is an attempt to ground political , legal and other justice - based obligations in the prior obligation to honor agreements . in this endeavor , the obligation to honor one ' s agreements is assumed independently of any appeal to the social contract , and the aim is to argue that the sorts of political and legal arrangements that exist between the citizen and the state are in fact agreements of the sort that would invoke the obligation . the figure most immediately associated with this project is locke , especially in the two treaties on government ( although there is some dissent to this view , cf . dunn 1984 ) .