Is 'Naturalised' Methodology in Legal Theory Helpful?
University of Zagreb, Faculty of Law
CEE Forum Yearbook: Reconsidering Democracy: (New) Theories, Policies and Social Practices, Peter Lang International Academic Publishers, 2013
With regard to the methodology for determining the subject-matter of legal theory, there are two strands of thought. According to the first and the predominant one, the subject-matter of legal theory is primarily determined on the basis of the a priori conceptual analysis and the intuitions of the theorist expounding his theory of law. In doing so, the legal theorist uses introspection and leans on his own intuitions about the possible samples of law which he then takes as the basis for determining the essential features of law. The second strand is B. Leiter's proposal for the so-called "naturalised" legal theory. Following Quine's understanding of epistemology, Leiter subjects the method of the a priori conceptual analysis and the role of intuitions in legal theory to criticism, holding that legal theory should be grounded in empirical research, which then enables the a posteriori conceptual analysis of the concept of law. In view of the fact that law is a concept "people use to understand themselves", Leiter suggests that the introspections and intuitions of legal theorists be replaced with empirical research into the views of those subject to law, i.e. with the ordinary people's views about law. Such "folk" view would represent the so-called internal point of view in its widest sense – the point of view of all the addressees of legal norms in a legal system who recognise these norms as the reasons for their actions. This "naturalised" methodological approach to legal theory raises the question of whether empirical research can be practically useful in the construction of a theory of law.
Number of Pages in PDF File: 18
Keywords: conceptual analysis, methodological naturalism, intuitions, methodology, legal theory, LeiterAccepted Paper Series
Date posted: December 13, 2012 ; Last revised: January 6, 2013
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