Naturalism in Scandinavian and American Realism: Similarities and Differences
DE LEGE, UPPSALA-MINNESOTA COLLOQUIUM: LAW, CULTURE AND VALUES, Mattias Dahlberg, ed., pp. 33-83, Uppsala: Iustus förlag, 2009
51 Pages Posted: 6 Mar 2009 Last revised: 8 Aug 2011
Date Written: March 5, 2009
Ever since W. V. Quine published an essay entitled "Epistemology Naturalized," naturalism has again been an important topic in core areas of philosophy, such as epistemology, the philosophy of language, and the philosophy of mind, and it has now reached jurisprudence. Accordingly, the task of gaining an understanding of the implications of a naturalist approach to the problems of jurisprudence, such as the place and shape of empirical theories of legal reasoning, the nature of law's normativity, and the nature and viability of conceptual analysis as a central philosophical tool, is on the agenda of contemporary jurisprudence. We should, however, note that the so-called legal realists in Scandinavia and in the United States advocated a naturalist approach to jurisprudence, and, more generally, to the study of law, already in the 1920's and the 1930's. In this article, I argue (i) that the realism espoused by the Americans and the Scandinavians alike is to be understood as a commitment to naturalism, conceived of as the ontological claim that everything is composed of natural entities whose properties determine all the properties of whatever it is that exists, or as the methodological (or epistemological) claim that the methods of justification and explanation in philosophy must, as they say, be continuous with those in the sciences, or as the semantic claim that scientifically acceptable concepts must be analyzable in terms of natural entities. I also argue (ii) that the Scandinavians and the Americans were more alike, philosophically and legally speaking, than one might have thought. For, as we shall see, even though the Scandinavians were primarily semantic and ontological naturalists, and the Americans were mainly methodological naturalists, two of the Scandinavians (Lundstedt and Ross) also embraced methodological naturalism and some of the Americans (Holmes, Cook, and Cohen) also accepted semantic (and ontological) naturalism; and even though the Scandinavians were primarily interested in the analysis of fundamental legal concepts, and the Americans were mainly interested in the study of adjudication, some of the Americans were also interested in the analysis of fundamental legal concepts. Furthermore, I suggest (iii) that the commitments to different types of naturalism on the part of these thinkers - both individually and collectively - may explain their respective choice of primary study-object, viz. fundamental legal concepts and adjudication, respectively. Finally, I argue (iv) that the modest version of conceptual analysis practiced by the Scandinavians and some of the Americans does not contradict their naturalism.
Keywords: Naturalism, Conceptual Analysis, Meta-Ethics, Binding Force, Scandinavian and American Legal Realism
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