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.

Chapter 5: The contingent relation between invalidity and unconstitutionality

Michael Giudice

Subjects: law - academic, legal philosophy, legal theory

Abstract

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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