The Significance of the Common Understanding in Legal Theory

Abstract

This paper focuses on an aspect of the methodology of legal scholarship: the role that the common understanding of an institution or principle should play in formulating a successful account of that entity. The paper begins by surveying the claims for the common understanding in contemporary scholarship. There are at least three reasons why a theorist should pay regard to the common understanding. First, the account produced needs to be intelligible to the community it addresses. Second, as social institutions are constituted by social rules, and shaped by people’s beliefs and dispositions, the common understanding of social institutions will at least partly determine their nature and operation. Finally, the common understanding may provide a pointer towards important features of the institution or principle: an argument based on the ‘wisdom of crowds’ may require us to pay attention to what people think is significant and valuable, even if we struggle to see this ourselves. The paper then considers the limitations of these arguments. Though they all show a role for the common understanding in accounts of institutions and principles, none are decisive: there is latitude for theorists to depart from the common understanding and, indeed, to produce successful interpretations of these phenomena such departure is often essential.