ABSTRACT
Most legal theorists and philosophers of law who work in the analytic tradition believe that intellectual progress in their fields necessarily means going ‘deeper’: coming up with more nuanced, precise and rigorous theories that are as responsive to the underlying facts and relevant normative consideration as possible. In fact, this belief is so entrenched and fundamental to legal theorists’ self-perception, that it seems almost trivial to point this out. However, this methodological commitment is much harder to justify than it first seems. The essay aims to show this by analyzing the notion of depth and problematizing our current commitments to go ‘as deep as possible’. The essay argues that our current methodological commitments do not flow logically from the nature of philosophical research, as is perhaps implicitly believed today. Instead, they represent a contingent choice, which caters to our psychological needs as scholars. Furthermore, the essay argues that this choice has disadvantages, and that a more relaxed ideal of depth in legal theory might be better in some respects. More specifically, the essay suggests that a less demanding ideal of depth would create an atmosphere of curiosity and enchantment that analytic research currently lacks.
Ben-Zvi, Omri, Depth in Legal Theory (May 26, 2019). Forthcoming, Jurisprudence.
First posted 2019-06-12 14:00:40
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