Analytic jurisprudence divides into two related areas: substantive and methodological. Until the late 1980s most analytic jurisprudence had been substantive. It focused on producing theories of the nature of law, the relationship between laws (particular legal standards) and law (a system of governance by laws), and the relationship of law to morality and other institutions for regulating human affairs and actions.
Whereas these debates in substantive jurisprudence remain as lively and urgent as ever, analytic jurisprudence has taken a decidedly methodological turn. Jurisprudence is a philosophical theory of the nature of law, not a historical, economic, or sociological one. But how can philosophy shed light on law? The conventional answer is that philosophy aims to uncover the nature of law.
But how can philosophy help uncover the nature of law? Since H. L. A. Hart, at least, the most prominent answer has been that philosophical theories of law are theories of the concept of law, of concepts related to it (such as obligation and authority), and of the relationships among these concepts. The philosophical method of jurisprudence is conceptual analysis. Thus, analytic jurisprudence is on the same footing as analytic epistemology, metaphysics, and metaethics. Analytic jurisprudence is conceptual analysis of the concept of law, just as epistemology is conceptual analysis of the concepts of epistemic warrant and knowledge.
The standard view is that competent speakers share the concept of law, though each has an incomplete grasp of it. While we take ourselves to be employing the same concept—a concept that regulates our usage and enables us to communicate meaningfully—in fact few competent speakers have theories of the concept in all its particulars. Constructing such a theory is the task of the jurisprudent. Such a theory refines and regulates our use and aims to deepen our understanding. Constructing such a theory begins with ordinary use, which reflects a partial understanding, but does not end there. Nor is jurisprudence merely a descriptive activity reporting on common or shared understandings.
Since Hart, at least, this has been the dominant method for approaching the study of the nature of law. Of contemporary legal philosophers, Joseph Raz is perhaps the preeminent proponent of this way of understanding conceptual analysis as a distinctive philosophical approach to law.
The place of conceptual analysis within jurisprudence has recently come under sustained attack from several quarters. These attacks have been responsible for much of the current interest in the methods of analytic jurisprudence. The first line of attack raises doubts about conceptual analysis, not just in jurisprudence, but in philosophy more generally. This is the naturalist challenge. In its stronger forms, naturalized jurisprudence argues that conceptual analysis is a form of inquiry that proceeds by culling usage and then testing various refinements and revisions against intuitions about proper use, and that it turns philosophical inquiry into an irreducible battle among competing intuitions and is ultimately hopeless.
Naturalists invite us to understand law by taking our cues from the social-scientific theories that explore the role of law in our social lives. We revise or amend those accounts only insofar as the theories fail to deliver the requisite goods: to enable us to make our way through the social world.
Within law, naturalists, Brian Leiter in particular, have focused more narrowly on the theory of adjudication. If we take authoritative legal texts as inputs and judicial decisions as outputs, then a theory of adjudication is a set of norms that takes the set of relevant authoritative texts, together with pertinent factual premises, and generates correct judicial opinions from them. A theory of adjudication is an account of warranted or justified legal inferences or decisions. The naturalist rejects the view that the norms governing proper legal reasoning can be determined by a priori reflection on our practice. Instead of trying to determine the norms by which judges ought to decide cases, they urge that we study how judges in fact decide cases. In this way, the legal naturalist echoes the claim, often attributed to W. V. O. Quine, that properly understood, epistemology would be no more than a chapter in a psychology text book.
The second kind of objection does not reject the idea that jurisprudence aims to provide a theory of the concept of law. Rather, it focuses on the form of conceptual analysis that Hart and others have been committed to, according to which the goal of jurisprudence is to identify the rule or criteria for the proper use of the concept of law. There are several objections to this project. One worry is that the concept of law may not be governed by a rule for its proper use, at least not one that is fixed by the shared understandings and behavior of competent speakers. As some have put it, the concept of law may be an essentially contested concept, the criteria of its proper application being fundamentally and inevitably in dispute.
Ronald Dworkin, for one, views the concept of law as essentially contested. Because the criteria for its application are necessarily in dispute, the proper application of the concept cannot be determined by a rule, and certainly not one whose content is shared by competent speakers. The essentially contestable nature of the concept of law implies that a theory of it cannot be constructed from reports of common use and understandings, even suitably revised and refined. Instead, the method of conceptual analysis appropriate to law is "constructive interpretation." Such an interpretation requires first attributing a value or purpose to law. The purpose of law is introduced to explain why it would be rational for agents to participate in it, or in some other sense to legitimate the practice. The theory of the concept is constructed by imposing this value on the practice of law as a way of organizing it and determining which features of it are most important to explain. Most important, a constructive interpretation of the concept of law is a normative theory of law. The interpretation begins with a contestable claim about the value of law that can only be defended by appealing to substantive moral principles.
Interestingly, Dworkin shares more with the natural jurisprudent than one might think. Both feel that a descriptive account of our legal practice is best left to social scientists, not philosophers. The naturalist takes this to be reason enough to deny that philosophical jurisprudence is a distinctive endeavor. For Dworkin, it is reason to think that philosophical jurisprudence must be normative.
Interpretivism is one form of normative jurisprudence. Like the so-called descriptivists and Dworkin, and unlike the naturalists, Stephen Perry accepts that the project of jurisprudence is to analyze the concept of law. Like Dworkin, he thinks the descriptivists have gone awry by thinking that an analysis of the concept of law can be achieved by reflecting on ordinary use, that is, by culling data about use, then revising and refining accordingly.
Perry's argument for normative jurisprudence is very different than Dworkin's, however. His point of departure is the claim that every theory of law has embedded within it a range of normative premises—about the nature of human agency, the value of governance by law, and most important, the proper function of law. According to Perry, the best way to interpret Hart is as claiming that the function of law is to guide conduct by reasons. By the same token, the best way to understand Dworkin is as claiming that the function of law is to justify the application of coercive force in terms of the past political decisions of legal actors. For Perry, defending a theory of the concept of law requires defending one or another view about the proper function of law. Any such defense calls for arguments of political morality, not for reports of common use or understanding.
Finally, other philosophers of law, notably Jules Coleman and Ori Simchen, take issue with conceptual analysis as the method of jurisprudence in somewhat different terms. As they see it, there are at least two problems with conceptual analysis. The first is that it relies on an unsustainable formulation of the analytic/synthetic distinction, according to which theorizing about a subject has distinct conceptual and empirical dimensions. The role of philosophy is identified with the former; the rest is a matter of empirical science. This division of labor, they claim, relies on a way of distinguishing the analytic from the synthetic that is untenable. Those who identify philosophical inquiry with conceptual analysis believe that the role of philosophy is to explore the fundamental concepts of an area of study. Philosophy uncovers the nature of the things studied by uncovering the conditions for the proper application of the relevant concepts. But this again artificially constrains the role of philosophy. It may well be that we cannot study a subject without having a concept of it, but that does not mean that philosophical inquiry must be identified with determining the conditions for the proper application of the concept. There is no reason why philosophical inquiry into law cannot be a direct account of the significant features of legal practice itself, and not merely of the concepts used to refer to the practice of law.
To sum up, the methods of analytic jurisprudence are hotly contested. The partisans fall into two camps: those who identify the distinctive role of philosophical inquiry with traditional conceptual analysis and those who, in one way or another, reject this approach. Arguably, Raz falls into the first category, whereas Leiter, Dworkin, Perry, Coleman, and Simchen, among others, fall into the second. Those who reject traditional conceptual analysis do so for a variety of reasons. Some naturalists, such as Leiter, take the rejection of the analytic/synthetic distinction to mean in effect that there is no distinctive role for philosophy in jurisprudence. That is, they implicitly accept the view that what is distinctive of philosophy is conceptual analysis, but since conceptual analysis requires the analytic/synthetic distinction, rejecting the distinction implies abandoning a distinctive role for philosophy.
Defenders of normative jurisprudence, especially Dworkin, believe that if there is a role for philosophy in the wake of the rejection of the analytic/synthetic distinction, it must take the form of a normative theory of law. After all, if jurisprudence cannot be conceptual, and empirical inquiries are best left to the social scientists, all that remains for philosophy is to advance a speculative normative philosophy of law. Still others who reject the analytic/synthetic distinction, like Coleman and Simchen, are inclined to the view that abandoning the distinction means that philosophical inquiry into law can be an amalgam of the empirical and the conceptual.
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Jules L. Coleman (2005)