Jurisprudential Disagreements and Descriptivism
22 Pages Posted: 1 Sep 2013
Date Written: August 30, 2013
Many contemporary legal philosophers argue that general jurisprudence is “descriptive.” I challenge this view in this essay by focusing on one familiar aspect of jurisprudence: persistent disagreements among legal philosophers. I argue that this fact is in tension with the claim that jurisprudence is descriptive. I consider several possible reconciliations of jurisprudential disagreements with descriptivism, but I argue that none of them succeeds. I then argue that persistent jurisprudential disagreements are easy to explain from within a normative framework. I conclude by suggesting that legal philosophers abandon descriptivism in favor of a view that more explicitly sees legal philosophy as part of normative political philosophy.
Keywords: jurisprudence, descriptive jurisprudence, jurisprudential methodology, legal positivism, H.L.A. Hart
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