Jurisprudence and Necessity
Posted: 21 Jun 2007
Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are "important" for understanding law. I argue that these two features are in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to "our" concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to "our" concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law.
Keywords: legal theory, concept of law
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