A Case for Constructive Conceptual Explanation
Elgar Studies in Legal Theory
Chapter 5: The contingent relation between invalidity and unconstitutionality
This chapter provides an illustration of how recognition of contingent relations constitutes a viable alternative and addition to identification of necessary features of law, by engaging in a substantive dispute in analytical jurisprudence. Specifically, this chapter defends a particular – and rather unpopular – descriptive-explanatory theory of law, exclusive legal positivism. The argument turns not on consideration of the authoritative nature of law – as almost all arguments for exclusive positivism do – but rather on identification of the contingent relation between unconstitutionality and invalidity. The account in this chapter also helps to set up the view discussed in subsequent chapters that the best conceptual explanation of some aspect of the social phenomenon of law may require revision to ordinary or folk understandings of that aspect.
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