Detachment, Evaluation and Concepts: On the General Jurisprudence and the Methodology of Jurisprudence Targeted on Joseph Raz
Date Issued
2011
Date
2011
Author(s)
Wang, Tsan-Jung
Abstract
In the last three decades or so there is high Interest in the Methodology of Jurisprudence or legal theory flourishing in the contemporary Anglophone jurisprudence. The most important Legal Philosophers such as H. L. A. Hart, Ronald Dworkin, Joseph Raz and John Finnis and many other legal theorists have contributed to this development.
This Essay attempts to take Raz’s legal philosophy as a clue to discussions on the methodological or meta-theoretical issues in the the dominant jurisprudential community of the world--the General Jurisprudence or Analytic Jurisprudence set out by Hart. Raz‘s approach to the methodology which has be offered in the 80’ of last century, have been shared by many leading legal theorists and therefore has been considered as the Orthodox View of jurisprudential methodology.
Chapter 2 first focuses on Raz on the normativity of law, and try to compare the theorectical accounts of law and its normativity of Hart and of Raz in the light of Hart’s Debate in his late life with Raz over the legal statements and legal obligation. As Andrei Marmor has said, Hart and Raz''s philosophy of law are detached account of law.
Hart''s theory of law or Raz detached thoery reflect in the jurisprudence of the relevant methodological lines of thinking. Chapter 3 pays attention to Dickson’s detailed explication of Raz’s methodology—named by Dickson as ”indirectly evaluative legal theory”-- and discuss "post-Postscript" methodological Debates over the role of evaluation in the legal theory. Chapter 4 is concerned with the Raz’s methodological essay “Can The Be a Theory of Law?” which were pulished in 2005, in which Raz tried to justify the general theory of law and point out that the main task of legal theory is to offer and account of the nature of law rather than the concept of law. I try to contextualize Raz’s views in this essay within the responses from his important opponents such as Robert Alexy, Eugenio Bulygin and Ronald Dworkin, and within the further discussion of General Jurisprudence.
In chapter 5 I try to characterize the features of the questions-raising and the methodologicay of the General Jurisprudence, as many theorists and I call it the "priority of conceptual question." And I try to discuss the approaches against General Jurisprudence from Brian Leiter’s naturalized jurisprudence and from Danny Priel’s view against the Orthodox View. In addition, I try to analyze the alternative approach to defend the General Jurisprudence/Descriptive Jurisprudence/Analytic Jurisprudence, including the so-called “normative positivism” and the “pluralistic Methodology” adopted by Jules Coleman.
Finally, Chapter 6 is the concluding remark.
Subjects
Methodology of Jurisprudence (Methodology of Legal Theory)
General Jurisprudence
detachment account
priority of conceptual questions (priority of conceptual analysis)
Ronald Dworkin
Naturalized Jurisprudence
Type
thesis
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