The Problem About the Nature of Law
FESTSCHRIFT FOR ERIK CARLSSON, Frans Svensson and Rysiek Sliwinski, eds., Uppsala: Uppsala University, Department of Philosophy, Forthcoming
24 Pages Posted: 1 Mar 2011 Last revised: 30 Aug 2011
Date Written: February 28, 2011
The problem about the nature of law is not only the central problem of jurisprudence, or legal philosophy, it is also the jurisprudential problem that is most difficult to understand. Whereas it is clear that an analysis of fundamental legal concepts, such as the concepts of legal right, legal duty, legal validity, and legal norm, may have instrumental value, it is not obvious that this is so with the result of an inquiry into the nature of law. Moreover, such an inquiry is often conceived as an analysis of the concept of law, which aims to establish analytical truths about this concept. The enterprise of conceptual analysis in this classical sense is somewhat problematic, however, and one has therefore reason to consider whether an inquiry into the nature of law could be conceived in some other, less demanding, way.
I argue (i) (and here I follow H. L. A. Hart and Robert Alexy) that the problem about the nature of law concerns the components of law, and the relations between law and authoritative issuance and between law and social efficacy, on the one hand, and between law and morality, on the other, (ii) that an inquiry into the nature of law is better conceived as an analysis of the concept of law than as an investigation of law itself, and that therefore the type of necessity involved is conceptual necessity, (iii) that such an analysis (a) is not to be understood as an attempt to clarify the meaning of the word ‘law’, and (b) may with advantage be conceived as an explication of the concept of law, rather than as a matter of conceptual analysis in the classical sense, and (iv) that while such an explication may have some instrumental value, it is not likely to contribute very much to our self-understanding.
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