ABSTRACT
For the great majority of legal philosophers writing since the mid 20th century, jurisprudence takes the form of an inquiry into the truth of ‘legal positivism’, understood as a theory about the nature and functioning of legal institutions. The central question in this debate has concerned the possibility of offering ‘neutral’ descriptions of these institutions, aside from arguments pertaining to their moral desirability. One who embraces the possibility of descriptive analysis, arrived at in isolation from more overtly deliberative processes, exhibits a concern for the general features of social institutions over the particular, for the application of institutional rules and procedures to specific cases is thought to consist of bringing to bear criteria that exclude a great many of the contextual considerations that might otherwise apply to our understanding of what is desirable or right in the circumstances: it is after all the function of rules, and thus also of the institutions of which they form part, to guide decisions in just this way. It comes as no surprise, therefore, that legal positivists should find it difficult to accommodate within their general picture of the functioning of such institutions, the form of legal thought found in common law, for common law reasoning emphasises just that sensitive exploration of the moral dimensions of specific situations that resists wholesale transformation into general rules.
