Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice

Article excerpt

THEORIZING ABOUT LAW and legal concepts falls under the field of jurisprudence, as do certain aspects of the assessment of legal institutions, procedures, and processes. Theorists in this field are typically described as working within various schools of thought, principally: natural law, legal positivism, legal realism, and critical legal studies. An alternative to these schools has been emerging, built on the field of praxeology, which addresses the formal concept of action and its deducible implications.

In this praxeological school of jurisprudence, legal-theory concepts deductively derived from the concept of action interact with interpretive institutional and contextual awareness and a respect for the theory/practice distinction. While aspects of the foundations of deductive legal theory and its general conclusions are related to traditional natural law approaches and might also be viewed as an extension of them, the praxeological approach is distinct in that its logical foundations overcome important weaknesses in previous natural law formulations.

Ludwig von Mises and his student Murray N. Rothbard identified praxeology as the foundation of sound economic theory. They reformulated economic theory by grounding it in praxeology. (1) They contributed their own insights to economic theory, while incorporating a vast body of existing economic theories and concepts into the new praxeological synthesis. Praxeology was a criterion for sorting the sound from the unsound. As George Selgin comments:

   ... Mises would have insisted that all of the lasting discoveries
   of the classical and neoclassical economists in the realm of pure
   theory were in fact results of the method described by praxeology;
   but this was by no means the acknowledged procedure of those
   schools of thought. (1990, 15)

Mises thought sound economic theory was so dependent on praxeology that he described economics as a branch within it. I argue that elements of the rationalist jurisprudence that has been developing within praxeologically informed "Austro-libertarian" thought comprise a branch of praxeology in the same sense that Mises identified economics as one. This praxeological action-based framework can be used to evaluate, filter, and refine the world's inherited body of legal concepts and traditions. Action and its formal implications emerge as an essential foundation for sound legal theorizing.

The complexity and implications of this topic require a substantial treatment, which has been developed in four parts:

Part I, "Foundations: An Extended Model of Praxeology," makes the primary theoretical arguments. It develops criteria for distinguishing fields that can be considered within, versus merely influenced by, praxeology. It specifies the reformulations that enable the placement of property theory and legal theory within praxeology and examines relevant philosophical issues concerning the foundations of property theory. It reexamines the is/ought gap with regard to the a priori of argumentation and the non-aggression principle. It also asks whether elements of other fields such as sociology and political theory could be considered branches of praxeology and discusses the place within praxeological thought of using discrete fields in combination.

Part II, "Action: Praxeological Legal Reasoning," provides examples of using praxeology to examine and reformulate legal concepts. These are based on themes and examples from the recent Mises Academy course, "Libertarian Legal Theory: Property, Conflict, and Society," taught by attorney and legal scholar Stephan Kinsella, a leading theorist in this field. (2) This section illustrates the use of praxeology in the reformulation of key legal-theory concepts and the analysis of legal-theory controversies, with a particular focus on the distinction between rights and actions.

Part III, "Practice: The Armchair and the Bench," discusses the importance of distinguishing legal theory from legal practice. …