Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology

Current Legal Issues: Law and Philosophy, 2007

20 Pages Posted: 22 Aug 2006

See all articles by John Oberdiek

John Oberdiek

Rutgers, The State University of New Jersey - Rutgers Law School

Dennis Patterson

Rutgers University School of Law, Camden; University of Surrey - School of Law

Abstract

In the last several years, analytic general jurisprudence has become increasingly attentive to its own methodology. No longer content with its traditional first-order questions revolving around the varieties, commitments, and defensibility of legal positivism, the discipline of jurisprudence has turned inward, asking the second-order question, How should one do jurisprudence? The methodology debate is not a mere proxy war between rival positivists and their mutual foes. In the first instance, second-order methodological positions on the role of moral evaluation in jurisprudence do not correspond directly to first-order positions regarding the relationship between legality and morality. Furthermore, the methodology debate focuses on one of the few planks in nearly all of the contenders' platforms, forcing legal philosophers to justify or jettison their shared commitment to conceptual analysis. In this article we introduce the methodology debate, draw attention to the merits and shortcomings of various positions already staked out, and contribute to the debate by, albeit briefly, defending the claims that moral evaluation has (at least) a modest role in analyzing the concept of law and that conceptual analysis, or rather, many of its incarnations, is defensible and indeed inescapable in jurisprudence.

Keywords: jurisprudence, legal theory, moral philosophy, methodology

Suggested Citation

Oberdiek, John and Patterson, Dennis, Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology. Current Legal Issues: Law and Philosophy, 2007 , Available at SSRN: https://ssrn.com/abstract=925628

John Oberdiek

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

217 North 5th Street
Camden, NJ 08102
United States
856-225-6513 (Phone)

Dennis Patterson (Contact Author)

Rutgers University School of Law, Camden ( email )

Camden, NJ 08102-1203
United States
856-225-6369 (Phone)
856-751-8752 (Fax)

University of Surrey - School of Law ( email )

United Kingdom

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