Question

Discus why law is a practical discipline; but theory has no place in law. With specific references to the Law of Contract. Note: the answer should be at least 800 words and

add references (APA referencing style).

Answer 1

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

2.1.1 Conceptual Analysis Views

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is whichconcept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of(Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts, section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object—theconcept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law.

2.1.2 Investigating Law Itself

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself, not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry onscientific reduction.)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy.)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).