Believing, I suppose, that the best defense is an offense, Dennis Patterson replies to my observation about the current state of the discourse known as ǃÚanalytic jurisprudence’ by challenging me to provide an argument in favor of one alternative I suggested: social philosophy as informing theories about the concept of (and nature of) law. Unfortunately, my argument is book-length and not yet published, two factors that deem it inappropriate for the blogosphere. (Though I promise to send him a copy of the published work and would welcome a thoughtful review.) Following, however, is another blog-appropriate observation that I hope will advance the discussion I wished to engender with my original entry ÇƒÏ a para-academic discussion about what are the maladies of contemporary analytic jurisprudence and potential avenues for a productive discourse.
Larry Solum is unhopeful about the potential contribution of social philosophy some of which he finds to be ǃÚobscure’ and ǃÚfuzzy’. It is my suggestion, however, that analytic legal philosophy, is hyper-analytic. Specifically, it is my impression that analytic philosophers are uncomfortable with the fact that pre-theoretical insights inform grand theories of law. I suspect that all greatly innovative theorists first have a pre-theoretical insight. Then, they figure out what methodology to apply in order to put such insights to the test. Hart had a brilliant insight: law as a system of secondary and primary rules. Dworkin had a great insight: integrity has to be a central element of law and its theory. Raz, luckily for us, stumbled upon the notion that the concept of law is closely linked to, embedded in a net of concepts with, the concept of authority, and so forth. To some (probably those closer to the social sciences generally, and critique-of-ideology in particular), it may be trivial that this is the process of theorizing – a creative process. But most jurisprudes tend to resist this notion. Talking to jurispurdes, and reading much of the methodological debates in analytic legal philosophy, one gets the impression that most jurisprudes believe that methodology and substance are actually, as opposed to analytically, distinct. In other words, while the distinction has great instrumental value, there is not, in fact, a clear and crisp distinction between substance and method. The distinction should only be used as long as it clarifies more than it obscures, but one should always keep in the back of their minds its limitations.
The need to believe that purely analytic tools to the study of law and its concept exist and we just need to figure out what they are could be a result of a defensive desire to be associated with ǃÚexact’, ǃÚanalytic’ (ǃÚmasculine’) disciplines, such as general philosophy, rather than be associated with ǃÚfuzzy’, ǃÚimpressionist’ (ǃÚfeminine’) disciplines such as sociology and literature. This is akin to the historically-defensive mode of the social sciences vis-?Ü-vis the ǃÚexact’ sciences. But the fact remains that law is a social phenomenon ÇƒÏ fuzzy, slippery and obscure. Theorizing about law, in turn, is a creative process in which the (good) theorist is struck by a pre-theoretical insight and then submits it to the scrutiny of his or her chosen methodology.
