Law as a Social Construction and Conceptual Legal Theory

38 Law and Philosophy, Forthcoming

16 Pages Posted: 27 Mar 2019

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Date Written: February 21, 2019

Abstract

A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically, one needs to know what it is. At the heart of this paper is the claim that these two propositions are inconsistent. It presents the following dilemma: if law is a social construction like all other social constructions, then legal philosophers have to explain what philosophers have to contribute to understanding it. Studies of social constructions are typically conducted by historians, sociologists, and others, who explain them (and what they are) on the basis of empirical data. If, as legal philosophers claim, conceptual clarification must precede empirical work, then it follows that the lack of conceptual work on the nature of other social constructions renders suspect all empirical work on them. To avoid such a radical conclusion, legal philosophers may argue instead that law is a social construction of a special kind. But to say that is to undermine the premise with which the argument began. Moreover, this response to the dilemma collapses what is now taken to be what separates legal positivism from natural law theory, thus undermining the motivation for this view. I conclude the essay by offering a different solution to the dilemma by suggesting that it shows that the fundamental debates of legal philosophy are not conceptual but political.

Keywords: jurisprudence, legal positivism, social construction, conceptual analysis, nature of law

Suggested Citation

Priel, Dan, Law as a Social Construction and Conceptual Legal Theory (February 21, 2019). 38 Law and Philosophy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3339582

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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