Law’s Humility: The Possibility of Metajurisprudence
No zu8q9, Thesis Commons from Center for Open Science
This thesis propounds a metatheoretical regimentation of legal claims that can accommodate theoretical disagreement across the board. The solution explored does not question the incommensurability between the descriptive and the normative variants of first-order disputes about the grounds of law. What it targets instead is an unpronounced agnosticism about the possibility of a more inclusive type of metajurisprudential disagreement that does not take for granted either the existence of legal facts—construed either as descriptive or as normative facts about what the law requires—as the trivial truthmakers of propositions of law or their potentially reason-giving properties. On the assumption that the fact that for every legal proposition there is something in the world that makes it true is a premise shared by all legal philosophers but those of an expressivist inclination, an unpronounced, primitive division of opinion occurs as early as one ventures to question that our commitment to the possibility of legal truth logically entails our commitment to entities of a distinctly legal kind. The alternative idea that comes out of the rejection of this entailment will be that part of what could explain the slow pace at which the positivism-antipositivism debate is moving beyond the traditional conceptual jargon of 20th century analytic jurisprudence is the fact that we may have been blind to the possibility that our quest for the ultimate grounds of law could have been taking place under the veil of a narrow understanding of the available options with regard to what could legally exist. In virtue of this reconfiguration the prospect of metajurisprudential disagreement acquires definitive shape. At this higher level of abstraction questions about the perspectival character of legal statements, the constitution of legal authority, the relation of legal truth to reality as well as about the nature of legal grounding and legal normativity become available for meaningful contestation. If there is something that could serve as a leitmotiv for this research proposal is that there is no more apt a byword for what it is to conduct foundational work in legal philosophy than that there is no royal way from semantics to ontology.
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