While the question of which conception of the law is most desirable to people is certainly important, it is important to note that the prescriptive view of methodology in jurisprudence does not really compete with the vision of conceptual analysis or the reductionist approach. Finally, positivism might turn out, for example, that positivism provides the best representation of our conception of law, or perhaps is the best reductive representation of the phenomenon of law itself, although there are convincing normative arguments for changing practice or adopting a new concept of it that, for example, is compatible with natural law theory. Consequently, representations of the concept of law or reductive legal theories do not necessarily contradict the prescriptive representations whose legal theory would be most desirable from a moral point of view. There are five main families of views on this issue. A viewpoint adopts case law as a form of conceptual analysis, meaning that legal theories aim to explain a legal concept. This approach is often associated with Hart`s influential book, The Concept of Law (1994). A second view takes a more skeptical attitude toward the methodology of conceptual analysis, assuming that legal theories offer a reductive explanation of the law itself, not a concept of it. Another more recent view considers general jurisprudence as another branch of metanormative research, which it continues with other philosophical fields such as metaethics. Fourth, the normative view assumes that the purpose of a legal theory is to clarify the concept of law that we would most like to adopt.
A fifth view associated with Dworkin`s work assumes that legal theories are intended to offer a constructive interpretation of legal practice. These five perspectives and some of the key issues they face are discussed in more detail below. The extent to which law can actually guide behavior by providing its subjects with reasons to act was questioned by a highly influential group of jurists in the first half of the 20th century, the so-called school of legal realism. American legal realists have argued that our ability to predict the outcome of legal cases based on legal norms is rather limited. In the most difficult cases, which are usually decided by the courts of appeal, the legislation itself is radically uncertain as to the outcome of the cases. Legal realists believed that lawyers interested in the predictive question of what the courts will actually decide in difficult cases need to conduct sociological and psychological research to develop theoretical tools that allow us to predict legal outcomes. Thus, legal realism was primarily an attempt to introduce the social sciences into the field of jurisprudence for predictive purposes. The extent to which this scientific project has been successful is controversial. In any case, legal realism has paid very little attention to the question of the normativity of law, that is, to the question of how the law guides behavior in cases where it seems sufficiently precise. A second, hotly debated question about jurisprudential methodology is whether first-rate legal theories are inherently evaluative. The above views on the correct purpose of first-order legal theories have different implications for this second question.
But before explaining this, we must first clarify the issue. We are now in a position to fully understand the issue of overriding interest here. In particular, the question is whether theories about the nature of existing legal practice (or perhaps our conception of it) necessarily include or imply thick judgmental assertions about the law. In other words, does the provision of a first-rate legal theory of conceptual analysis, reductive or constructive interpretations require the acceptance of assertions about the value of the law or a feature of it? This is the question that will be addressed in the rest of this post. Cicero influenced the discussion of natural law for many centuries, until the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who “had an extraordinary grip. on the imagination of posterity” as “a means of disseminating the ideas that shaped the law and institutions of the Reich.” [28] Cicero`s conception of natural law “found its way into the following centuries, especially through the writings of St. Isidore of Seville and Gratian`s Decretum.” [29] Thomas Aquinas, in his summary of medieval natural law, quoted Cicero`s statement that “nature” and “custom” were the sources of the laws of a society. [30] The concept of natural law was very important to the development of English common law. In battles between Parliament and the monarch, Parliament often referred to the fundamental laws of England, which were sometimes said to embody the principles of natural law from time immemorial and set limits on the power of the monarchy. However, according to William Blackstone, natural law could be useful in determining the content of the common law and deciding cases of equity, but was not itself identical to English law.
Nevertheless, the implication of natural law in the common law tradition meant that great opponents of natural law and advocates of legal positivism, such as Jeremy Bentham, were also virulent critics of the common law. The main conclusion of legal positivism, namely that the conditions of legal validity are determined by social facts, involves two distinct affirmations called the social thesis and the separation thesis. The social thesis asserts that law is profoundly a social phenomenon and that the conditions of legal validity consist of social – that is, non-normative – facts. Early legal positivists followed Hobbes` idea that law is essentially an instrument of political sovereignty, and they argued that the fundamental source of legal validity lies in the facts that constitute political sovereignty. The law, they thought, is fundamentally the command of the sovereign. Later, legal positivists modified this view, arguing that social rules, not facts about sovereignty, are the foundations of law. Most contemporary legal positivists share the view that there are rules of recognition, i.e. social rules or conventions that determine certain facts or events that pave the way for the creation, modification and abolition of legal norms. These facts, such as a legal act or judicial decision, are the sources of law that are generally identified as such in any modern legal system.
One way to understand the legal positivist position here is to see it as a form of reduction: legal positivism essentially claims that legal validity is reducible to non-normative type facts, that is, facts about people`s behavior, beliefs, and attitudes. First, one may ask where the interest of the question of whether legal theory is inherently evaluative comes from. Part of this interest probably stems from the skeptical concern that legal theories that claim to be purely descriptive are actually pushing a hidden ideological or political agenda. (For more information, see, for example, in John Gardner`s introduction to Dickson 2004.) A second source of interest in this question might be the suspicion (or hope) that if legal theory turns out to be inherently evaluative, it would be an independent reason to adopt a version of natural law theory. Whether this is the case, however, remains doubtful, as meta-questions about the methodology of legal theory appear prima facie independent of first-order legal theoretical issues, such as the determinants of the content of law.
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