Choosing a Legal Theory on Cultural Grounds: An African Case for Legal Positivism

Abstract

If there are two or more legal theories or philosophies to choose from, what sort of considerations might induce one to prefer one to the other(s)? The standard answer to this question is that for the choice to be a reasonable one, it must be based on an estimate of theoretical advantage or moral benefits or both. In other words, the choice must be based on the judgment that one of the theories is superior to the other(s), in the way in which it would advance and clarify our theoretical inquiries on the nature of law, or in the way in which it would advance and clarify our moral deliberations about the law, or, in the way in which it would do both. Neither of these two considerations is peculiar to the domain of legal theory. The adoption or rejection of theories on conceptual andor on pragmatic grounds is an integral part of the enterprise of theory construction in all aspects of science; moral consideration is the essence of practical reasoning; legal theory is just an aspect of practical reasoning.