Article by Robert Justin Lipkin
Legal theory is currently in a state of crisis. No longer is reason heralded as the undisputed foundation of legal culture. From diverse quarters comes a call to abandon the dogma of legal reasoning and to replace it with a radically different form of inquiry. This new form of inquiry—which I shall call “conversationalism”—is reputed to be vastly superior to reason because it does not rely on the quixotic attempt to formulate a neutral perspective from which to evaluate competing legal theories. Conversationalism is also attractive because there seems to be something especially humane in exhorting people to try to settle their differences by sitting down and talking to one another. This Article attempts to discover whether conversationalism is a desirable alternative to traditional legal methods. The Article concludes that only one form of conversationalism, namely, wide reflective equilibrium, exists as a viable alternative to legal reasoning.
Part One of this Article critically examines and rejects five different types of conversationalist theories. Part Two describes and defends wide reflective equilibrium as the most illuminating model of conversationalism available. It is then argued that even wide reflective equilibrium is restricted by an unavoidable form of skepticism, compelling us to abandon the hope of devising a completely normative theory of law and ethics. Finally, Part Three explores the relationship between conversationalism and compromise, concluding that without a positive theory of compromise, anti-foundationalist theories, including conversationalism, are unable to provide a rapprochement between competing systems of values. Without the possibility of compromise, legal and moral controversies will be settled only through advocacy or coercion. No purely rational means will be possible.
About the Author
Robert Justin Lipkin. Associate Professor, Widener University School of Law. B.A., 1965, Brooklyn College, M.A., 1971, Ph.D., 1974, Princeton University, J.D., 1984, UCLA.
Citation
66 Tul. L. Rev. 69 (1991)