Justifying Law: The Debate over Foundations, Goals, and Methods

by Raymond A. Belliotti

Entering the perennial debate about the role and definition of law, Raymond A. Belliotti presents a critical survey of a number of philosophical approaches to law and judicial decision making. Against the background of the conflicting orientations represented by Legal Formalism and Legal Realism, he discusses the relationship between law and society. For a decision such as Roe v. Wade, the differing justifications by formalists and realists can affect policy interpretations as well as legal challenges. The application of an implicit right to privacy versus the attempt to enact policy that deals with a social problem and the acceptance of judicial innovation demonstrates how sometimes opposing arguments can reach the same legal decision. While providing his own account of law, Belliotti takes seriously the legal critiques inspired by Marxism and feminism and illustrates how traditional philosophical problems and methods plague legal theory. He also shows the impasses to which our argumentational strategies lead and suggests ways we might transcend those dead ends.
In the context of classical and contemporary legal theories, Justifying Law addresses crucial issues in the formalist/relativist debate. These the rationality or irrationality of law; the presence or absence of preexisting "right answers" to legal questions; the role, if any, of normative reasoning in judicial decision making; the appropriate roles for legal and extralegal materials in determining answers to legal questions; and the relationship between the Rule of Law and politics.
Justifying Law traces the philosophical struggle objectivist and relativist accounts of value, knowledge, and the nature of reality. The author suggests a relationship between jurisprudential theory and political affiliation and points out the various rhetorical and argumentational modes used by legal strategists.

301 pages, Hardcover

First published February 1, 1992