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Essentially Ambiguous Concepts and the Fuller-Hart-Dworkin Debate

Archiv für Rechts-und Sozialphilosophie, Vol. 95, No. 3, pp. 305-326, 2009

Tilburg University Legal Studies Working Paper No. 003/2007

53 Pages Posted: 25 Aug 2007 Last revised: 6 Oct 2010

Wibren van der Burg

Erasmus School of Law, Erasmus University Rotterdam; Queen Mary University of London, School of Law

Date Written: August 1, 2007

Abstract

Concepts such as law, religion or morality may refer both to a practice (or process) and to a doctrine (or product). My thesis is that we should not regard these as separate phenomena, but as two partly incompatible models of the same phenomenon. Law, religion and morality are therefore essentially ambiguous concepts (EAC). An EAC is a concept which refers to a dynamic phenomenon that may only be described and modeled in at least two different ways that are each essentially incomplete and which are partly incompatible with each other. This means that we have to choose between either an incomplete description or an incoherent one. An EAC resembles an essentially contested concept (ECC) as both allow of conflicting conceptions. However, for an ECC the explanation of pluralism lies in the evaluative character of the concept, for an EAC it lies in the dynamic character of the phenomenon. The insight that many of our social concepts are essentially ambiguous may provide a better understanding of social and customary rules and of the debate between legal positivism and its opponents. I reconstruct the positions of three contributors to this debate, Fuller, Hart and Dworkin. An EAC framework offers a better insight into their theories, highlights the deficiencies, and explains why their debates were characterized by serious misunderstandings.

Keywords: Essentially ambiguous concepts, essentially contested concepts, Fuller, Hart, Dworkin, practice, doctrine, coherence, positivism, dynamics, pluralism

JEL Classification: K10

Suggested Citation

van der Burg, Wibren, Essentially Ambiguous Concepts and the Fuller-Hart-Dworkin Debate (August 1, 2007). Archiv für Rechts-und Sozialphilosophie, Vol. 95, No. 3, pp. 305-326, 2009; Tilburg University Legal Studies Working Paper No. 003/2007 . Available at SSRN: https://ssrn.com/abstract=1009179 or http://dx.doi.org/10.2139/ssrn.1009179

Wibren Van der Burg (Contact Author)

Erasmus School of Law, Erasmus University Rotterdam ( email )

Section Sociology, Theory and Methodology
PO Box 1738
3000 DR Rotterdam
Netherlands

HOME PAGE: http://www.wibrenvanderburg.nl

Queen Mary University of London, School of Law ( email )

Mile End Road
London, E1 4NS
United Kingdom

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