Saturday, October 1, 2016

A Surprising Friend for Jurisprudential Naturalism

A bit of a break from The Concept of Law. (The best is yet to come.) In the meantime, a couple of paragraphs from Lon Fuller’s, Legal Fictions (1967). The book is largely a reprint of a three-part article published in 1930–31. The quote below is from the short preface added in 1967. In it he anticipated Brian Leiter’s invocation of Quine’s “Two Dogmas of Empiricism” against conceptual jurisprudence by several decades.

All this matters because Fuller is often read to have accepted the conceptual (analytic) enterprise, and to challenge legal positivism from within. On this reading Fuller thought it was a conceptual truth that law is necessarily connected to morality; or that morality is necessarily one of the conditions of validity of a legal norm. I said somewhere (now published here) why I don’t think this reading makes much sense of what Fuller said. This quote is one striking bit of evidence in support of this conclusion.

Was Fuller a naturalist? That depends on what one means by naturalism, and it is fair to say that in some senses of the term he probably was not. But at least on the naturalist critique of conceptual analysis, he was on the right side of history. 

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