Author: Michelle Dempsey

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The “Missing Jurisprudence” – Part 2

In my previous post, I recounted the pay-off one might expect from the development of what Professor West characterizes as a “missing jurisprudence” – that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.

In this post, I summarize and comment upon Professor West’s account of why liberal and progressive members of the American legal academy have failed to take up the questions of the natural law tradition and make them central to their jurisprudential projects.

Adopting an illuminating trilogy of military metaphors (“friendly fire,” “self-inflicted wounds” and “incoming artiliary”), Professor West explains the reasons why such a jurisprudential orientation has been so long “missing” (“missing-in-action”?) in the American legal academy.

To capture the gist of these military metaphors, it is helpful to identify the different sides in this jurisprudential battle:

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The “Missing Jurisprudence”

It is a great honor to participate in this online symposium, discussing Robin West’s Normative Jurisprudence: An Introduction. Last month, I was delighted to participate in an event at Georgetown University Law Center, discussing this important and groundbreaking work.

At that event, I was asked to summarize and comment upon Professor West’s first chapter, “Revitalizing Natural Law.”  (Mark Murphy, whose comments were posted yesterday, presented on the same panel and offered an illuminating commentary on Chapter 1 and natural law methodology generally.)

In this first of two posts, based on my comments at the Georgetown event, I will offer a partial summary of Chapter 1 of the book and comment on the aims of Professor West’s project.

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Professor West’s principal thesis in Chapter 1 is that American liberal and progressive jurisprudence has, to its own detriment, failed to take up the questions that ground the natural law tradition: namely, “What is the common good that law ought to promote?” and “How can law and legal systems best serve the common good?”  This failure has created what Professor West calls a “missing jurisprudence”:  that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.

So… what would be the practical effect of infusing a natural law inquiry into a progressive jurisprudence?  How would the focus of this heretofore “missing jurisprudence” differ from that of the progressive jurisprudence we currently have? What, in other words, is the pay-off for developing a progressive natural law jurisprudence?

According to Professor West, the pay-off is six-fold:

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