Understanding the Nature of Law

Understanding the Nature of Law

A Case for Constructive Conceptual Explanation

Elgar Studies in Legal Theory

Michael Giudice

Understanding the Nature of Law explores methodological questions about how best to explain law. Among these questions, one is central: is there something about law which determines how it should be theorized? This novel book explains the importance of conceptual explanation by situating its methods and goals in relation to, rather than in competition with, social scientific and moral theories of law.

Introduction

Michael Giudice

Subjects: law - academic, legal philosophy, legal theory

Extract

Anyone interested in the question ‘what is the nature of law?’ soon finds a vast array of answers, each embodying a particular set of concerns and methodological commitments, and each proclaiming its own special importance. Among these answers and approaches, analytical legal theory stands out as perhaps the most ambitious, claiming as its objective the identification and explanation of universal, essential truths about the nature of law. As Joseph Raz asserts, It is easy to explain in what sense legal philosophy is universal. Its theses, if true, apply universally, that is they speak of all law, of all legal systems; of those that exist, or that will exist, and even of those that can exist though they never will. Moreover, its theses are advanced as necessarily universal . . . The universality of the theses of the general theory of law is a result of the fact that they claim to be necessary truths, and there is nothing less that they claim . . . A claim to necessity is in the nature of the enterprise. In this recent encapsulation of his views, Raz sets out in particularly forthright terms a set of goals and commitments long associated with him, since taken up root and branch by other analytical legal theorists.