Doing Without the Concept of Law

33 Pages Posted: 7 Aug 2015 Last revised: 29 Aug 2015

Date Written: August 3, 2015

Abstract

This essay argues that the doctrinal concept of law is unnecessary. Traditional accounts of the concept of law hold that public officials and citizens undertake a two-step protocol in their practical reasoning. Each first determines what the law requires and then assesses whether her other reasons for actions dictate a different decision. One can, however, replace these two-step protocols with a one-step protocol that globally assesses all reasons for action without making the intermediate determination of what the law requires.

Dworkin, in his philosophy of law, essentially takes this position with respect to judges. He reduces the two-step protocol to a one-step protocol. He may thus be viewed as a proto-elminitavist.

Keywords: concept of law, eliminativism, Hart-Dworkin debate

Suggested Citation

Kornhauser, Lewis A., Doing Without the Concept of Law (August 3, 2015). NYU School of Law, Public Law Research Paper No. 15-33. Available at SSRN: https://ssrn.com/abstract=2640605 or http://dx.doi.org/10.2139/ssrn.2640605

Lewis A. Kornhauser (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6175 (Phone)
(212) 995-4341 (Fax)

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