By George Rutherglen. Full Text.
This essay examines the well-known difficulties encountered by legal theorists in offering a justification for Brown v. Board of Education in the immediate aftermath of the decision. It locates these difficulties in the inadequacy of legal theory at the time, which had taken a turn away from normative principles towards facts in legal positivism and legal realism. Neither provided a compelling rationale for overturning the regime of Jim Crow, which had been sanctioned by constitutional precedent for decades. Revisionist history and moral principle, instead, had to be revived to take a central role in legal theory and they eventually furnished a persuasive justification two decades later. Perhaps this delay just reflects the essential belatedness of legal theory, which often provides a rationale only after the immediate need for doing so has passed. If so, we should learn from the mistakes of theorists in the past to look for our own mistakes, in failing to rework legal theory soon enough to meet the constitutional challenges that we currently face.