The middle way: What contemporary liberal legal theorists can learn from Aristotle

Abstract

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of the "middle way." The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches of contemporary liberal legal theory of the middle way are discussed. The first is characterized by a reluctance to have recourse to substantive moral and political principles that exist independently of a particular legal order. Because of their reluctance to import substantive standards external to a nation?s legal system into legal reasoning, this approach advocates to a much greater degree than the second approach reliance on communal deliberation and various structural, procedural, and related devices to constrain deliberations about human values and conduct. This study outlines some of the central beliefs of this process-oriented approach to practical knowledge and then analyzes how Aristotle might react to them. The beliefs discussed are the place and method of communal reasoning about practical matters; self governance and consent; self-governance and transformative political participation; and the emphasis on ideal speech conditions to legitimate the products of communal deliberation. The second approach of contemporary liberal legal theory of the middle way discussed in the essay is characterized by a belief that moral or political philosophy can arrive at some measure of truth about principles and values having to do with the lives of individuals and the conduct of communities. With one exception, the theorists discussed in this part of the essay are willing to recognize and incorporate such principles and values into practical reasoning that takes place within the confines of a particular legal system such as our own. These thinkers disagree about the degree to which and the occasions on which recourse to values external to a political community should occur. This essay discusses how Aristotle might react to the major ideas common to these thinkers. The ideas discussed in this part are the sources of external substantive values that legal reasoning might incorporate; the relative roles of consent and habit in securing obedience to the law; and the connection between deliberation and character.

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Miriam Galston
George Washington University

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