Theorising Areas of Law
30 Pages Posted: 15 Oct 2019 Last revised: 18 Mar 2020
Date Written: October 4, 2019
This paper provides a general account of particular or special jurisprudence, i.e. the part of jurisprudence that deals with theorising discrete ‘areas of law’. Section 2 will start with a few comments on theorisation itself. We will claim that a theory is an attempt to provide an explanation of a phenomenon with the aim of understanding the phenomenon. We then outline three types of theoretical questions that are of relevance to theorising areas of law: ontological, empirical, and normative. Section 3 will claim that ‘an area of law’ is an intersubjective social artefact that exists only because legal officials, practitioners, academics, and other actors comprising the legal complex in a given society recognise it as such. We further claim that once an area of law is so recognised, it starts experiencing pressures to make it coherent in three distinct, but interrelated, ways. These are coherence-as-non-contradiction, coherence-as-consistency, and normative coherence. Over time, these coherence-seeking forces are likely to lend the area of law a distinct identity. Section 4 deals with the three different approaches to particular jurisprudence. It taxonomises the field based on whether the theoretical enterprise is ontological, empirical, or normative. Ontological theories aim to explain the nature of an area of law. They are usually concerned with its identity and its essential or defining features. Empirical theories are concerned with the actual functioning of legal actors and institutions. They tend to go beyond an exclusive focus on legal doctrine. Normative theories, we argue, may be detached or committed, ideal or non-ideal, universal or local, or interpretive. Ontological and normative theories usually deploy philosophical tools; empirical theories normally use social science methods. Section 5 deals with two distinct methodological problems in particular jurisprudence. The first of these is the ‘problem’ of transparency—to what extent, if any, should a theoretical explanation of an area of law itself be accepted by legal officials? We argue that such recognition is not a success condition for a theory. The second problem is the problem of fit. Underfit occurs when the theoretical claim is insufficiently supported by the facts that inform the theoretical enterprise. Overfit is a problem when theoretical claims fail to sufficiently explain the available facts about legal practice (even after making allowances for the complexity, contingency, and multiplicity of factors that bring about such facts), and this failure cannot be explained by practical mistakes. Section 6 concludes.
Keywords: particular jurisprudence, areas of law, legal theory, special jurisprudence
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