Saturday, October 17, 2015

The Argument Against Conceptual Jurisprudence, Part 1: The Crib Notes Version

I said in an earlier post that Les Green completely missed my argument in my paper “The Misguided Search for the Nature of Law.” But what is the argument? One way of finding out is to do what Green did, namely “slog through” all fifty two pages. Some responses I got to the paper suggest that those who bother can make sense of it.

But, as Bentham said, “the age we live in is a busy age.” (And that was before Facebook.) So in this and a few more posts, I will try again, more briefly.

First, a visual summary:

There are two “standard” approaches to the nature of law inquiry. The first approach posits that the search for the nature of law is the search for what law, regardless of what any human ever thought about the matter. It is stated explicitly by some of those who hold this view that all humans can get the nature of law wrong. Simplified greatly, the main argument against this view is that this object (“law itself”) does not exist. A different argument is that even such an object exists, it is unknowable. The second argument is less developed in the paper, but I hope to come back to it later.

The other approach is that the search for the nature of law is an attepmt to understand what goes on inside peoples heads. Against this sociological approach there are two main arguments. One is methodological: it challenges the approach by which philosophers go about trying to find out people’s attitudes on law. The approach is, essentially, a survey with a sample of one. Even if you include the rest of the jurisprudential community in the sample, it is still a tiny and highly unrepresentative one. The other challenge is that we know (if only by observing at that small sample of humanity) that different people have different views about law in general. Any adequate sociological account has to report these divergent views.

This leaves another possibility open, which is the interpretive one. I did not discuss it in the paper, but it is worth mentioning here. Within jurisprudence this view is most associated with Dworkin and dismissed by almost everyone else. In fact, a version of interpretivism (not wholly different from Dworkin’s) makes most sense of the work of many of Dworkin’s antagonists, most notably Hart, but many others as well. 

All this is by way introduction. More to come.

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