Zombie Jurisprudence

Abstract

This chapter argues that contrary to what most philosophers of law believe, the long-standing divide between analytic and critical philosophy can in fact be bridged, at least in some cases, and that much can be gained from a constructive dialog between these two schools. To demonstrate this claim, the chapter analyzes an emerging view within analytic philosophy of law, which reduces legal norms to their effects on the overall set of moral obligations, duties and permissions of agents ("Law as Morality"). The chapter does not critique Law as Morality directly, but instead argues that though this position is presented as a novel analytic insight – indeed, as a breakthrough in jurisprudence – it is animated to a large extent by ideas that are thoroughly discussed in Critical Legal Studies literature. This result should surprise critics and analytic philosophers alike, as the two camps disagree on almost every facet of their thinking, but agree that they are discrete groups, engaged in wholly different projects. The chapter draws on this example to defend the more general thesis that critics and analytic philosophers share more similarities than they acknowledge.

Keywords: Jurisprudence, Legal Theory, Critical Legal Studies