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 7: Imperialism and difference in legal theory

Michael Giudice

Subjects: law - academic, legal philosophy, legal theory

Abstract

This chapter examines two prevalent views about how to understand the diversity of methodological approaches to law. The first view is called, following Hart, ‘imperialism’ in legal theory. Imperialism is the attempt to find and demonstrate the truth of a single methodological approach to understanding law. Any theory which does not adopt the method claimed to be the correct one is dismissed by the imperialist view as inadequate, since it will simply miss what is truly important about law. The second view is called the ‘difference view’, and is best understood as a reaction to imperialism: it maintains that theories should be distinguished and understood in light of their avowed purposes, such that theories of different types cannot be viewed as competitive if their principal aims are fundamentally different. This chapter argues that neither imperialism nor the difference view ought to be accepted.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information