ABSTRACT
This chapter, written for a collection of essays honouring Stephen Smith, critically studies his theory of interpretive legal theories. Smith insists that interpretive theories must not engage with substantive moral arguments and the resulting account he offers for interpretive theories is apt for the task he assigns to them, namely: capturing the way legal theories can serve judges and lawyers in understanding the law in its daily operation. But since the conventional wisdoms of the pertinent legal community on which this meta-theory inevitably relies are necessarily contingent, it does not exhaust the universe of interpretive legal theories. When these prevailing wisdoms are challenged, as they occasionally are (and should be), legal reasoning is transformed. In these potential ‘paradigm shifts’ of the law (as I metaphorically call them), lawyers resort to arguments that were hitherto ‘off the wall’, but nonetheless rely on an understanding of law’s pedigreed sources and concepts. These arguments seek to illuminate the doctrine’s deep normative meaning and significance, as well as the proper connections between its different parts. Thus, they require a different genre of interpretive legal theories: reconstructive theories, which offer a critical reflection from within and open up the way for reading law’s pedigreed sources and concepts in a more normatively justified fashion than they are currently understood.
Dagan, Hanoch, Two Genres of Interpretive Legal Theories (November 23, 2022). Forthcoming in: Understanding Private Law: Essays In Honour Of Stephen A Smith (Evan Fox Decent et al eds, Forthcoming 2023).
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