Necessary and Universal Truths About Law?
Ratio Juris, 2016, Forthcoming
38 Pages Posted: 24 Jun 2016 Last revised: 9 Sep 2016
Date Written: June 23, 2016
This essay critically examines claims by analytical jurisprudents that there are necessary, universal truths about the nature of law. First I discuss the differences between natural kinds and social artifacts. Philosophers of society have grappled with the challenges involved in grounding necessary features in social artifacts, engaging issues that analytical jurisprudents have not begun to address. Then I ask whether assertions about law’s necessary features are a priori or a posteriori knowledge. Analytical jurisprudents do not agree among themselves on the basis for their assertions, and most have not explained their position at all. Next, I turn to universal truth claims about necessary features of law, in particular Joseph Raz’s effort to straddle parochial and universal, demonstrating that universal application is sound but universal truth is not. Then I expose crucial implications surrounding the pre-theoretical identification of the central case of law, which determines the purportedly necessary features of law. Analytical jurisprudents presuppose the paradigm of law without justification and without considering alternatives that would produce theories of law with different features. I also note that they have not provided clear criteria by which to test the correctness of theories of law, and I reveal two ways they shield theories of law from refutation through counter-examples. Finally, I close by suggesting how the nature of law can be understood absent necessary features. The basic problem with establishing necessary, universal truths about law is that concepts of law and legal institutions vary and are socially and historically contingent and change over time.
Keywords: Legal Theory, Jurisprudence, Legal Philosophy, Law and Society
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