Private Law Theory

Dan Priel, Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence, 35 University of Queensland Law Journal 57 (2016), available at SSRN; Markus D Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015), available at SSRN. Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, ‘historical jurisprudence has largely disappeared’. Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine … (more)

[Brian Tamanaha, JOTWELL, 2 February]

First posted 2017-02-02 13:19:37