Challenges the Agenda of Conceptual Analysis of the Concept of Law and the Nature of Law
Although these are all valuable cautions to recognize before plunging headlong into the enterprise of searching for the necessary and sufficient conditions of the concept of law, they are no more than cautions. All of these cautions presuppose contested questions about the nature of concepts and about how we might go about recognizing and explaining them, and while it is important to recognize the con-tested nature of some of the assumptions, it is nevertheless far from unreasonable to engage in conceptual analysis of the concept of law on the assumption that there is a concept to be analyzed, and that the analysis will yield a set of necessary and sufficient conditions for application of the concept. This too may not be so, and it is possible that law is such a diverse, loose, and shifting array of phenomena that there is no interesting nature of law itself, and no interesting concept of law. Nevertheless I assume not only that there are concepts, and not only that they can be analyzed in terms of their necessary or essential properties, but also that there is a concept of law and that the concept of law is one of the concepts that can be so analyzed. This does not follow necessarily from the previous assumptions. It is possible that there are concepts susceptible to philosophical analysis but that the concept of law is not one of them. But I assume the contrary, and thus assume the possibility and even the value of conceptual analysis of the concept of law.
Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001), p. 17
Throughout this paper I will treat “necessary” and “essential” as more or less synonymous. See Brian H. Bix, “Raz on Necessity,” Law and Philosophy, vol. 22 (2003), pp. 537–559, at p. 537 n. 2.
I make a similar claim about legal reasoning in Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Massachusetts: Harvard University Press, 2009), pp. 1–12.
Andre Marmor, “Legal Positivism: Still Descriptive and Morally Neutral,” Oxford Journal of Legal Studies, vol. 26 (2006), pp. 683–704. See also Andre Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001), p. 153; Wil Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994), p. 19.
Ronald Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986), pp. 50–59.
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 14–17.
Stephen R. Perry, “Hart’s Methodological Positivism,” in Jules Coleman, ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001), pp. 311–354; Stephen R. Perry, “Interpretation and Methodology in Legal Theory,” in Andre Marmor, ed., Law and Interpretation (Oxford: Oxford University Press, 1995), pp. 97–122.
Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press, 1978), p. 103.
W.B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society, vol. 56 (1965), pp. 167–183.
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