58 Pages Posted: 23 Apr 2010
This paper, prepared for a conference on jurisprudential methodology in Girona, Spain, starts with the observation that much of contemporary jurisprudence focuses on conceptual analysis, and on the properties that are necessary (or essential) to the concept of law. This enterprise is thought to advance our “understanding” of the “nature” of law, and indeed it has. But if we define the “nature of law” as other than synonymous with “concept of law,” or if we substitute words like “character” or “tenor” for “nature,” we may discover that there are features that are not necessary to law, but which overwhelmingly exist in actual legal systems, and which are more concentrated in legal systems than in other social structures and institutions. Moreover, we may discover that the identification and philosophical analysis of such features – probabilistically concentrated in law but not necessary to it – can also advance our understanding. As a result, defining jurisprudence (or the philosophy of law) as limited to general jurisprudence and as limited to the search for features that are necessary to law wherever and whenever it exists may turn out to hinder rather than advance our understanding of law as it is lived and experienced. Most contemporary practitioners of analytic general jurisprudence seek to identify and explain those features of law that are both necessary and important for legality, but by examining features that are important but not necessary we may learn much about law that an existing but unfortunate common definition of jurisprudence impedes.
Suggested Citation: Suggested Citation
Schauer, Frederick, Necessity, Importance, and the Nature of Law. Virginia Public Law and Legal Theory Research Paper No. 2010-19. Available at SSRN: https://ssrn.com/abstract=1594930 or http://dx.doi.org/10.2139/ssrn.1594930