Author:
Vilaça Guilherme Vasconcelos
Abstract
Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.
Publisher
Cambridge University Press (CUP)
Reference159 articles.
1. See Hart H. L. A. , The Concept of Law (1994).
2. Marmor Andrei , On the Limits of Rights, 16 Law & Phil. 1 (2007).
3. See Simon , supra note 14.
4. See Browne , supra note 2, at 79; Cotterrell, supra note 3, at 182; Crowe, supra note 9, at 9.
5. L'Enseignement de la Philosophie du Droit (Michel Troper & Françoise Michaut eds., 1997) [hereinafter Troper & Michaut].
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