Brian Bix, Philip Soper, Formalism, Conceptualism, Functional legal unit, Empircal legal studies, Social concepts of rules, Form v. substance
Jurisprudence | Legal History | Legal Writing and Research
The paper replies to Bix and Soper (Bix 2007; Soper 2007). Bix’s paper raises methodological questions, especially whether a form-theorist merely needs to reflect on form from the arm-chair so to speak. A variety of methods is called for, including conceptual analysis, study of usage, “education in the obvious,” general reflection on the nature of specific functional legal units, empirical research on their operation and effects, and still more. Further methodological remarks are made in response to Soper’s paper. Soper suggests the possibility of substituting “form v. substance” of a unit as the central contrast here rather than form v. complementary material or other components of a unit. Various reasons are given here for not doing this. Among other things, it is also argued here that form does not, contrary to Soper’s suggestion, always follow substance.
Summers, Robert S., "Comments on the Comments" (2007). Cornell Law Faculty Publications. Paper 1358.
Published in: Ratio Juris, vol. 20, no. 1 (March 2007).