Ways of Explaining Law

Abstract

It’s become commonplace to say that jurisprudence is at a “dead end.” This essay, which reviews Julie Dickson’s Elucidating Law attempt to argue that matters are not so dire, explains the sources of the decline and offers some alternatives. It begins by identifying a fundamental disagreement between two approaches to explaining the “nature” or “essence” of law, one (derived from Kelsen) that gives philosophy priority over (or independence from) social explanation, and another (derived from Hart) that considers philosophy as a method for explaining social practices. I show that the former approach has been rejected with respect to all other social practices and question why it should be adopted with respect for law. I then show that the ordinary-language philosophy Hart embraced was designed to be an anti-naturalistic form of social explanation. Though itself a poor method for explaining social practices, the latter opens up new ways for thinking about jurisprudence. I conclude with such proposals focusing on the possibility of seeing jurisprudence as offering (false) models of legal reality rather than a collection of necessary truths about it.

Keywords: jurisprudence, philosophical methodology, ordinary language philosophy, models