Law as a Second-Order Essentially Contested Concept

Jurisprudence, Forthcoming

Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies No. 16-001

48 Pages Posted: 24 May 2016

See all articles by Wibren van der Burg

Wibren van der Burg

Erasmus School of Law, Erasmus University Rotterdam; Queen Mary University of London, School of Law

Date Written: May 23, 2016

Abstract

Since Gallie introduced the notion of essentially contested concepts, it has given rise to considerable debate and confusion. The aim of this paper is to bring clarity to these debates by offering a critical reconstruction of the notion of essential contestedness. I argue that we should understand essentially contestable concepts as concepts that refer to ideals or to concepts and phenomena that can only be fully understood in light of ideals and that are, as a consequence, open to pervasive contestation. Moreover, some concepts are second-order essentially contested: it may be a matter of ongoing dispute as to whether they should be regarded as essentially contested.

The concept of law is an example. Some authors argue that it is ideal-oriented, whereas others claim it is not. This insight that ‘law’ is a second-order essentially contested concept may explain some of the disagreements between legal positivism and its various opponents.

Keywords: Essentially contested concepts, Gallie, ideals, concept of law, second-order essentially contested concepts

Suggested Citation

van der Burg, Wibren, Law as a Second-Order Essentially Contested Concept (May 23, 2016). Jurisprudence, Forthcoming; Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies No. 16-001. Available at SSRN: https://ssrn.com/abstract=2783292 or http://dx.doi.org/10.2139/ssrn.2783292

Wibren Van der Burg (Contact Author)

Erasmus School of Law, Erasmus University Rotterdam ( email )

Section Sociology, Theory and Methodology
PO Box 1738
3000 DR Rotterdam
Netherlands

HOME PAGE: http://www.wibrenvanderburg.nl

Queen Mary University of London, School of Law ( email )

Mile End Road
London, E1 4NS
United Kingdom

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