Down the methodological rabbit hole

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Abstract

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample's impact. Section 4 explains "meta-Theoretical" desiderata. It contends that, to date, legal philosophical appeals to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably "normative" enterprise. It argues that certain "normativist" methodologies, such as Dworkin's constructive interpretation and Finnis' appeal to the central case of the internal point of view, are unnecessary.

Original languageEnglish
Pages (from-to)41-73
Number of pages33
JournalCrítica
Volume49
Issue number147
DOIs
Publication statusPublished - Dec 2017

Keywords

  • Central cases
  • Conceptual analysis
  • Counterexamples
  • Legal philosophical methodology
  • Meta-Theoretical desiderata

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