Jurisprudence. Kang, 2009.
Questions of Approach.
Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham.
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modeled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law.
Analytic, or ‘clarificatory’ jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analyzing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: “What are laws?”; “What is the law?”; “What is the relationship between law and power/sociology?”; and, “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
HLA Hart Persistent Questions. Pg. 104
Perplexities arise because of the wide range of definitions of law among legal scholars even though the generally educated person would have a pretty clear understanding of what law is. How is it, Hart wants to know, that there appears to be so much disagreement about the nature of law when “any educated man” is able to identify the salient features of legal systems? The question of what law is cannot immediately be answered, but it is an indication to him that significant issues swirl around its definition. One can best get at the definitional issue by exploring what he calls “three recurrent issues” in law.
How do law and legal obligation differ from, and how are they related to, orders backed by threats?
Related to the “interior” perspective of laws.
How does legal obligation differ from, and how is it related to, moral obligation?
There are certainly laws that are unjust. How can those who believe law is morality respond to this?
What are rules and to what extent is law an affair of rules?
Types of Rules:
Rules forbidding or enjoining certain types of behavior under penalty
Rules requiring people to compensate those whom they injure in certain ways
Rules specifying what must be done to make wills, contracts, or other arrangements which
t a legal system
What societies or systems does theory about “law” purport to cover?
Bix’s suggestion for an alternative combines Michael S. Moore; a general theory of law covering systems which serve the same function within their communities or countries (e.g., dispute resolution with Dworkin who rejected the value of a general theory of law; would be so high level that it would be useless; should focus on one single legal system
Bix proposes an alternative that legal theory be both a discussion of law in general and focused on a particular legal system; we choose the social systems which appear to us to be like our own legal system in significant ways
What does it mean to say that a conceptual claim is not “falsifiable”?
Can’t be proven objectively true or false
Why, if at all, does it matter?
If it is true to say that a claim is not falsifiable, such analyses are useless.
What is the purpose of conceptual analysis/definition?