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Michael Giudice

This chapter offers a second illustration of how constructive conceptual explanation proceeds by testing conceptual accounts against observable social reality. Unlike the last chapter, which was restricted to consideration of a particular type of modern sovereign state, this chapter turns to conceptual investigation of a particular example of nonstate law, European Union (EU) law. One of the central philosophical puzzles emerging from reflection on the nature of EU law is how best to understand the rival supremacy claims – regarding the ultimate source of validity of EU norms – made respectively by member-state courts and the European Court of Justice. In this context, strict adherence to the method of conceptual analysis results in a logically incoherent descriptive-explanation of EU law, and for this reason, constructive conceptual explanation must be pursued.
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Michael Giudice

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.
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Michael Giudice

This chapter takes a closer look at one prominent imperialist claim (best associated with Dworkin), that a proper understanding of law must be from and for the participant’s perspective. The role of participant understandings in legal theory has been the topic of much debate, yet no clear solution has been provided of how or why participant perspectives matter to legal theory. This chapter is designed to clear some misunderstandings about what legal theory owes to participant understandings in the context of the general diversity of theories of law and establish a basis upon which to resolve some methodological disputes.
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Michael Giudice

This chapter introduces and defends what is called ‘continuity’, a methodological commitment (or meta-method) to openness which recognizes and reconciles the diverse approaches to understanding law and legal phenomena. The nature of continuity lies in recognition that diverse approaches can be connected by both complementary and conflicting relations: diverse approaches are complementary at the level of theoretical perspective (that is, all of conceptual, moral and political, and social scientific investigations are valuable and required for explanation of the social phenomenon of law), yet conflict may remain at the level of particular claims about the nature and existence of law. This chapter aims to show how a renewed account of conceptual explanation coupled with a commitment to pursuit of continuity yields a truly superior way of understanding the diversity of theories of law, and cuts through a number of meta-theoretical obstacles.
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Michael Giudice

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Michael Giudice

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Michael Giudice

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Understanding the Nature of Law

A Case for Constructive Conceptual Explanation

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.
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Keith Culver and Michael Giudice

Here we investigate the adequacy of the conception of legality expressed in explanatory accounts of the nature of law that take state legal systems as the object of their explanatory challenge. More specifically, we investigate accounts of state legal systems conceived as a special union of different types of rules used by their officials and institutions to make special normative claims of authority over the lives of territorially-contained subjects. We argue that just as the idea of the state is only one way – and probably not the best way – of understanding the social foundation of law whenever and wherever law exists, the idea of the state legal system is only one way – and probably not the best way – of understanding the totality of legal phenomena giving rise to the idea and practice of legality. This analysis yields the conclusion that the conception of legality arising from explanation of the relations between modern sovereign states and state legal systems is only one part of an adequately comprehensive explanation of the relation between society and law. A broader approach and conception of legality is better suited to analytical legal theory’s aim to offer phenomena- and interest-responsive conceptual explanations of law in more than contingently prominent contemporary instances of legality.