Legal Phenomena, Knowledge, and Theory: A Cautionary Tale of Hedgehogs and Foxes

摘要

This article analyzes the susceptibility of areas of legal regulation to being organized or explained by top-down deductive theories of general applicability. It hypothesizes that at least three variables determine in part the likely relevance of general theories to sets of legal phenomena, ambiguity (gaps in the law), unpredictability (computational intractability), and the comparative need for specialized and common sense reasoning. We hypothesize that as ambiguity, unpredictability, and the utility of common sense reasoning go up, the amenability of a set of legal phenomena to general theoretical approaches decreases. We thus predict that the meaning of negligence will be resistant to theoretical approaches, both economic and corrective justice, and that the nature of antitrust law will embrace the microeconomic approach. We test these predictions in various ways and find support for both of them.