This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to (...) provide an account of those properties that distinguish things that are law from things that are not law which constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed. (shrink)
The topic this semester will be “methodology,” with special (but not exclusive) reference to the recent, voluminous literature on this topic in legal philosophy. There are two central questions: (1) Is there a distinctive method of philosophical inquiry? (2) What is the relationship between philosophical methods and the methods (and results) of the empirical sciences (broadly construed)?
This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached (...) that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.A number of ancillary matters are discussed in the essay including: semantic approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law’s Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz’s split theory of legal reasoning and law. (shrink)
Next SectionIn emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The (...) moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence. (shrink)
Abstract. The purpose of this paper is to address some of the main issues of contemporary jurisprudential methodology by considering the contribution of Jules Coleman to this subject. After a description of Coleman's methodological approach and a clarification of its philosophical background, the paper focuses on some related problems, such as the relation between linguistic meaning and conceptual content, the nature of legal concepts, the different aspects of the normativity of content, and the revisability of conceptual truths.
Maurice Hauriou (1856-1929) -- Methodology -- Hauriou's general methodology -- Legal methodology -- Sociological methodolgy -- Methodological interplay of law and social science -- Application of methodology to large groups -- Philosophical methodology -- The philosophical status of Hauriou's methodology.
The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political (...) philosopher Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)
Lawyers pretend as if the process of application of laws, as well as its outcome, could be an analytic-deductive derivation; especially law students learn that legal decision-making is primarily a logic process. But we know that application of laws depends on analytic-logical as well as on voluntaristic (wilful) elements. Exact relations between these components are unknown and will be unknown. At most German law schools students as the most important imperative tool learn the so called “Auslegung” through the use of (...) theoretical instruments, which do not reflect the interpretation of law practice. These mentioned causes result in irrationality of legal decision-making. In order to achieve more rationality in the process and result of legal decision-making, the contribution makes four suggestions regarding legal methodology and legal education. These proposals consist of few long-term pragmatic approaches to more rationality of legal decision-making. (shrink)
Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, 2001) -- Why Quine (...) is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)
What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)
This Alfred Schutz Memorial Lecture discusses the relationship between the phenomenological life-world analysis and the methodology of the social sciences, which was the central motive of Schutz’s work. I have set two major goals in this lecture. The first is to scrutinize the postulate of adequacy, as this postulate is the most crucial of Schutz’s methodological postulates. Max Weber devised the postulate ‘adequacy of meaning’ in analogy to the postulate of ‘causal adequacy’ (a concept used in jurisprudence) and (...) regarded both as complementary and, in the context of sociological analysis, critical. Schutz extracted the two postulates from the Neokantian epistemology, dismissed the concept of causality, and reduced Weber’s two postulates of adequacy into one, namely, the adequacy of meaning. I discuss the benefits and shortcomings of this reduction. A major problem, in my view, is that Schutz’s reformulation lost the empirical concern that was inherent in Weber’s ‘causal adequacy’. As a result, the models of economics (which shaped Schutz’s conception of social science) are considered to be adequate if they are ‘understandable’ to an everyday actor, even when they are based on the most unrealistic assumptions. To recapture Weber’s empirical orientation I recommend a more restrictive interpretation of the postulate of adequacy that links it to qualitative research and unfolds the critical potential of Schutz’s phenomenological life-world analysis. My second goal is to report on some current developments in German sociology in which a number of approaches explicitly refer to Schutz’s analysis of the life-world and attempt to pursue ‘adequate’ empirical research. This lecture focuses on three approaches: ethnophenomenology, life-world analytic ethnography, and social scientific hermeneutics. (shrink)
We note an increasing consciousness of weakness of legal methodology taught to law students today: The students get neither real idea nor feeling of legal decision-making as mixture of legal matters, issue of facts, personal inputs, diverging interests, and the interplay with other actors. For minimize these defects it is necessary that law students learn in legal studies the following points: (1) Legal decision-making is a special kind of decision-making and is embedded in all problems of this process. (2) (...)Jurisprudence is a hybrid science: It deals with facts of issue as well with legal matter. (3) Jurisprudence will be understood as transnational science and requires greater cooperation between law schools all over the world. (4) Legal education should focus on general principles and legal tools rather than on detailed rules. (5) Legal theory should demonstrate students our lack of understanding legal decision-making. (6) A realistic legal methodology has to take into account the impossibility of absolute certainty of the correctness of legal decision. (7) It is important to point out that analysis of facts of the case as crucial part of legal methodology requires teaching systems to introduce students in the respective techniques in practice like case studies, projects as well as legal clinics or SASLA-system. (shrink)
Does Duncan Kennedy successfully cannibalize jurisprudence? He attempts to do it by demonstrating the inexistence of rightness in legal argumentation. If there is no right legal argument, then there is no right answer in adjudication, adjudication is not a rational enterprise and legal doctrine cannot be said to be a science. It can be shown that skepticism is self-defeating. Duncan Kennedy can avoid self defeat only because he actually believes in a lot of legal arguments. His thesis that judges (...) decide questions of policy without any methodology that distinguishes them from legislators does not hold. Judicial reasoning is subject to constraints that do not affect legislators. It must be based on the sources of law and is limited by rules of procedure. Even when the judges have ‘interstitial’ legislative powers they are, unlike the legislator, bound to fit the system and their decisions are considered in procedure from the perspective of the right answer doctrine. The only work that can convincingly refute the skeptic argument against legal science is the reconstruction of jurisprudence as a scientific enterprise. Such work is beyond the scope of any single paper. The article aims to give some inspirations for such a task. (shrink)
The Postscript to 'The Concept of Law' contains Herbert Hart's only sustained and considered response to the objections made by his distinguished critic, Ronald Dworkin. In this extraordinary collection, an array of leading legal philosophers evaluates the success of Hart's response to Dworkin.
This paper represents the first installment of alarger project devoted to the relevance of pragmatism forbioethics. One self-consciously pragmatist move would be toreturn to the classical pragmatist canon of Peirce, James andDewey in search of substantive doctrines or methodologicalapproaches that might be applied to current bioethicalcontroversies. Another pragmatist (or neopragmatist) move wouldbe to subject the regnant principlist paradigm to Richard Rorty'ssubversive assaults on foundationalism in epistemology andethics. A third pragmatist method, dubbed ``freestandingpragmatism'' by its proponents, embraces a ``pragmatist'' approachto practical (...) reasoning without discernable moorings either to theclassical canon or to Rorty's neopragmatism. This thirdpragmatist approach to method in practical ethics is the subjectof this article. I begin with an examination of freestandingpragmatism in the theory of judicial decision making. I arguethat this version of legal pragmatism – so described on account ofits commitments to contextualism, instrumentalism, eclecticism,and freedom from grand theory – bears a striking resemblance tomuch self-described pragmatist work in bioethics today. Ifurther argue that if this is what we mean by ``pragmatism,'' thenin a certain sense ``we are all pragmatists now.''. (shrink)
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this 'legal positivist' school of jurisprudence, the law endorses rights by some official act suitably communicated. But how (...) can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.
In the growing Prussian university system of the early nineteenth century, "Wissenschaft" (science) was seen as an endeavor common to university faculties, characterized by a rigorous methodology. On this view, history and jurisprudence are sciences, as much as is physics. Nineteenth century trends challenged this view: the increasing influence of materialist and positivist philosophies, profound changes in the relationships between university faculties, and the defense of Kant's classification of the sciences by neo-Kantians. Wilhelm Dilthey's defense of the independence (...) of the methodology of the human sciences (Geisteswissenschaften) from those of the natural sciences (Naturwissenschaften) is as much a return to the ideal of Wissenschaft as a cooperative endeavor as it is a defense of the autonomy of interpretive or hermeneutic methods. The debate between Dilthey and the neo-Kantian Wilhelm Windelband at the close of the century illuminates the development of this dialogue over the nineteenth century. (shrink)
Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing (...) “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason. (shrink)
Law and morality : constructs and models -- The morality of cognition : the normativity of ordinary reasoning -- Law in action : a praxeological approach to law and justice -- Law in context : legal activity and the institutional context -- Procedural constraint : sequentiality, routine, and formal correctness -- Legal relevance : the production of factuality and legality -- From law in the books to law in action : egyptian criminal law between doctrine, case law, jurisprudence, and (...) practice -- The natural person : the contingent and contextual production of legal personality -- The production of causality : a praxeological grammar of the use of causal concepts -- Intention in action : the teleological orientation of the parties to criminal cases -- Morality on trial : structure and intelligibility of the court sentence -- Questions of morality : sequential, structured organization of the interrogation -- The categories of morality : homosexuality between perversion and debauchery. (shrink)
I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)
I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)
This is the first book that attempts to analyze and define the metholodology and values of contemporary accounts of adjudication, which can be divided into orthodox philosophies on the one hand and heretical accounts on the other. The author offers an incisive and original analysis of how these supposedly incompatible accounts actually differ.
History and theory -- Descriptions and constructions -- The practical argument -- Rights in law -- Obligation and permission -- Legal relations -- The right to property -- Freedom through law -- Rights in legal deliberation.
In the legal domain, ontologies enjoy quite some reputation as a way to model normative knowledge about laws and jurisprudence. This paper describes the methodology followed when developing the ontology used by the second version of the prototype Iuriservice, a web-based intelligent FAQ for judicial use. This modeling methodology has had two important requirements: on the one hand, the ontology needed to be extracted from a repository of professional judicial knowledge (containing nearly 800 questions regarding daily practice). (...) Thus, the construction of ontologies of professional judicial knowledge demanded the description of this knowledge as it is perceived by the judge. On the other hand, due to the distributiveness of the environment, there was a need for controlled discussion and traceability of the arguments used in favor or against the introduction of a concept X as part of the domain ontology. This paper presents the Ontology of Professional Judicial Knowledge (OPJK), extracted manually from the selection of relevant terms from judicial practice questions and modeled according to the DILIGENT methodology. We will show that DILIGENT has proved to be a methodology that facilitates the ontology engineering in a distributed environment, although appropriate tool support needs to be developed. (shrink)
One important trend in political philosophy is to hold that non-human animals don't directly place demands of justice on us. Another important trend is to give considerations of justice normative priority in our general normative theorising about social/political institutions. This situation is problematic, given the actual ethical standing of non-human animals. Either we need a theory of justice that gives facts about non-human animals a non-derivative explanatory role in the determination of facts about what justice involves, or else we should (...) be wary of the default normative priority that considerations of justice have in much of contemporary political philosophy. This discussion brings out important general methodological points tied to the role of concept and word choice in normative theorising about our social/political institutions. These methodological points, I argue, matter for a range of discussions in contemporary political philosophy, including those about global justice. (shrink)
The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...) concept in economic terms, are some of the questions that this paper will try to provide answer to. Further, as there is a tendency to believe that Islamic economic thought cannot be equated only with legal and juridical underpinnings, it is pertinent to pose a question if economic ideas have flourished independently from its legal framework. Maṣlaḥa in its capacity has always remained part and parcel of Islamic legal theory, and has been rarely addressed within the frame of economic thought; therefore a new reading is required to deal with the position of economic teachings within Islamic tradition. The paper consists of three sections, whereby the contributions made by Muslim medieval scholars on Islamic economics will be presented. The first chapter provides a historical overview of Islamic law and the concept of maṣlaḥa in relation to the field of Islamic economics, including Abu Hamid al-Ghazali’s monumental Iḥya ‘ulūm al dīn, which presents a milestone in converging Sufi ethical teachings of Islam in accordance with the legal methodology of Islamic law. The second part aims to discern and examine the economic jurisprudence and economic theory in Islam as it is understood by some of the mainstream theoreticians of Islamic studies, advocating the view that Islamic economics is inextricably related to the gist of Islamic legal reasoning. In this section the ideas of Muhammad Baqr al-Sadr will be presented as he proposes a new reading of Islamic economics as a doctrine and not a science. The third part questions Islamic legal establishment and its normativity, the claim that legal norms have always been part of the Islamic economic reasoning. This claim rests upon the idea that Islamic legal patterns were also socially constructed, including some aspects of Islamic economic reasoning. Concluding remarks will draw upon the idea that despite the fact that Islamic legal and economic literature are based upon the religious scriptures of Islam, the Qur’an and Tradition, it is more appropriate to claim that they rest upon the ethical cosmology that surpasses purely theological concerns. (shrink)