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Michael Giudice

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Michael Giudice

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Michael Giudice

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Michael Giudice

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Michael Giudice

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Michael Giudice

This chapter identifies and explains three of the most important and recent challenges to the project of analytical jurisprudence, conceived as an exercise in conceptual analysis: (i) the objection that disputes about the boundaries of the concept of law are simply irresolvable, which in turn shows that conceptual analysis of law ought to be given up; (ii) the objection that conceptual analysis employs two problematic epistemological devices – a sharp distinction between analytic and synthetic truths and appeals to intuition; and finally, (iii) the objection that the sheer variety of types of law makes pursuit of a single essence or concept of law meaningless.
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Michael Giudice

This chapter assesses the net impact of the objections introduced in the first chapter. While parts of these objections can be met, more importantly they reveal the need for analytical legal theorists to move beyond conceptual analysis of law and towards constructive conceptual explanation of law. Conceptual analysis attempts to uncover the implicit features of a particular culture’s self-understanding of law, and so is inherently conservative, while constructive conceptual explanation seeks to modify or develop new and improved conceptual explanations of law for use in characterizing and understanding the social reality of law.
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Michael Giudice

Using Hart’s conceptual theory of law as an illustration, this chapter shows how analytical legal theory has internal resources enabling it to characterize law in terms of contingent features and relations, and not just the necessary features and relations it has historically sought to find and explain. This chapter emphasizes in particular that Hart’s conceptual theory of law is best understood not as a report of some familiar intuitions about law manifested in ordinary language use, but instead as a philosophical construction, comprised of several interconnected theses presented to highlight important features and relations of law wherever and whenever it exists.
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Michael Giudice

This chapter introduces the view that many necessary truths about law that, for example, Hart defends, are neither analytic nor a priori truths, but are instead best understood as claims of a posteriori necessary truth. This chapter is designed as a counter-balance to Brian Leiter’s view that philosophers of law ought to consult Quine’s naturalized epistemology to resolve some longstanding internal disputes about the boundaries of law. Saul Kripke’s account of the separability of analyticity, a prioricity and necessity is just as important, if not more so, to employ.
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Michael Giudice

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.