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Copyright (c) 1989 Georgia Law Review Association
Georgia Law Review

ARTICLE: Baseline Questions in Legal Reasoning: The Example of Property in Jobs

Summer 1989

23 Ga. L. Rev. 911


Jack M. Beermann * and Joseph William Singer **


A. Legal Theory and Baseline Analysis

At one time, legal theorists focused their attention on the sources and boundaries of law. They asked: What is law and where does it come from? Proponents of natural law believed that law was intimately related to morality and that it established rights founded in nature or human reason. Positivists understood law as wholly distinct from morality and founded on authoritative commands of sovereign political bodies. A parallel debate addressed the process by which legal rights are defined. This second project asked a question about legal reasoning: What makes law objective? Natural rights theorists equated objectivity with correctness. They elaborated the limits on individual freedom necessary to protect the rights of individuals in society, starting with the premise that natural law established an objectively correct set of protections. In the alternative, they defined the procedure by which a decisionmaker could discern the society's rational consensus about the issue in question. Utilitarians looked instead to the consequences of alternative legal rules with an eye toward defining a legal regime that could maximize social utility. Promoting the general welfare appeared to be a neutral and objective standard against which to measure legal rules because it seemed both to count each individual's interests equally and to represent a social goal that would benefit everyone.

Although these debates were energetic and sometimes heated, none of the participants doubted the possibility of achieving objectivity in law. The legal realists changed all that. The current debate over ...
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