The Misguided Search for the Nature of Law

Abstract

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence is not conceptual, since if these arguments are true, they imply that critiques of conceptual jurisprudence are misguided. I argue that such arguments involve a terminological change more than a challenge or a substantive alternative to conceptual jurisprudence. I then turn to examining conceptual jurisprudence itself. I distinguish between two families of views on concepts, “externalism,” which conceives of concepts as abstract entities, and “internalism,” which conceives of concepts as basic units of thought. Because of this difference, these two views lead to two quite different characterizations of conceptual jurisprudence, each calling for different response. Nevertheless, I argue that both are unsuccessful. I offer a series of arguments against each view: the main argument against the externalist position is that it is viciously circular (as it necessarily assumes the view of law it defends); the main argument against the internalist view is a bad form of sociology. I conclude with brief hints as to what a non-conceptual jurisprudence would look like.

Keywords: conceptual jurisprudence, nature of law, conceptual analysis, H.L.A. Hart