San Diego Law Review

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So what kind of theorizing do we do in law? First, we do empirical, predictive theorizing. We form hypotheses about how the world will be affected by various rules of law, because of their content and form, and by the design of our legal institutions. These hypotheses can be confirmed or falsified. We also form hypotheses about how particular judges will decide future cases, or how legislatures and agencies will react to various proposals. When we do legal history, we reason backwards from effects and form hypotheses about their causes. The second type of theorizing we do is normative. In doing this we basically employ Rawls's method of reflective equilibrium:' moving from particular normative judgments to build more general normative principles, both testing and revising those principles through further particular normative judgments, and revising our particular normative judgments in light of the more general normative principles. Every discussion of what we ought to do that I have ever observed has taken this form. Another type of theorizing is what I shall call analytical. We do it when we point out internal inconsistencies or incoherences, both in doctrines and in methods, such as analogical reasoning or constraint by precedent. Finally, we philosophize-we theorize about theorizing itself. What are we doing when we engage in normative debate? What are we doing when we reason by induction?