The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects

The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects

The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects

The Complexity of Legal and Ethical Experience: Studies in the Method of Normative Subjects

Excerpt

The major theme of this book is that both legal and ethical experience are much more complex than any traditional theory of these subjects would lead one to suppose. Hence the first quotation in the front of this book. It might be supposed that the easiest way to show this would be to describe legal and ethical experience. Such, however, is not the main approach of this book. For "experience" is an ambiguous word. This ambiguity arises from the fact that experience is as much a product of theory as it is a criterion of the correct theory. Consequently, experience needs analysis, as the second quotation affirms. The safest way, therefore, to avoid oversimplification is to analyze the practical and the theoretical issues which concrete decisions and normative theorizing have generated. This analytic and problematic approach guides us to the theoretical traditions, hypotheses and methods which give our present legal and moral experience much of its meaning and content. Also, since each particular theory owes its existence to certain facts in normative experience which any theory ignores at its peril, the pluralism of the theories, especially when supplemented with a description of the norms of different cultures, guides one to the diversity, the richness and the complexity of the facts.

Were one to use a merely empirical, descriptive approach, pushing all traditional and contemporary theory aside, one's method would leave one with merely a description of an "is." Yet it is the very nature of normative experience that it requires one to pass judgment upon what is. What ought to be normatively as well as what is in fact the case normatively is of the essence of concrete legal and ethical experience. For example, in their unanimous decisions in the desegregation cases, the Justices of the Supreme Court of the United States not merely described the de facto positive legislative educational statutes and social customs of the Southern States, but also . . .

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