Michael Giudice - The Methodology of Legal Theory: Volume I
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The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dicksons Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Harts Postscript to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose a systematic agenda for future work. The editors have selected articles written by leading legal theorists, including, among others, Leslie Green, Brian Leiter, Joseph Raz, Ronald Dworkin, and William Twining, and organized under four broad categories: 1) problems and purposes of legal theory; 2) the role of epistemology and semantics in theorising about the nature of law; 3) the relation between morality and legal theory; and 4) the scope of phenomena a general jurisprudence ought to address.
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Michael Giudice
Matthew Stone
MaksymilianDel Mar
MartinP. Golding
B.Sharon Byrd
Sari Kisilevsky (editor)
Drucilla Cornell
Eugen Ehrlich
Marcus Galdia
Muhammad ibn Idrīs al-Shāfiʿī
Wil Waluchow
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The Methodology of Legal Theory
Volume I
Volume I
The Library of Essays in Contemporary Legal Theory
Titles in the Series:
The Methodology of Legal Theory
Volume I
Volume I
Michael Giudice, Wil Waluchow and
Maksymilian Del Mar
Maksymilian Del Mar
Legal Theory and the Social Sciences
Volume II
Volume II
Maksymilian Del Mar and Michael Giudice
Legal Theory and the Legal Academy
Volume III
Volume III
Maksymilian Del Mar, William Twining and
Michael Giudice
Michael Giudice
The Methodology of
Legal Theory
Volume I
Legal Theory
Volume I
Edited by
Michael Giudice
York University, Canada
Wil Waluchow
McMaster University, Canada
and
Maksymilian Del Mar
University of Lausanne, Switzerland
First published 2010 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright Michael Giudice, Wil Waluchow and Maksymilian Del Mar 2010. For copyright of individual articles please refer to the Acknowledgements.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.
Wherever possible, these reprints are made from a copy of the original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality of the reprint, some variability may inevitably remain.
British Library Cataloguing in Publication Data:
The methodology of legal theory. (The library of essays in contemporary legal theory)
1. Jurisprudence. 2. LawMethodology.
I. Series II. Giudice, Michael. III. Waluchow, Wilfrid J.
IV. Del Mar, Maksymilian, 1979
340.1dc22
Library of Congress Control Number: 2010924488
ISBN 9780754628903 (hbk)
Contents
The editor and publishers wish to thank the following for permission to use copyright material.
Cambridge University Press for the essays: Joseph Raz (1998), Two Views of the Nature of the Theory of Law: A Partial Comparison, Legal Theory, , pp. 24982. Copyright 1998 Cambridge University Press; Gerald J. Postema (1998), Jurisprudence as Practical Philosophy, Legal Theory, , pp. 32957. Copyright 1998 Cambridge University Press; Julie Dickson (2004), Methodology in Jurisprudence: A Critical Survey, Legal Theory, , pp. 11756. Copyright 2004 Cambridge University Press; William Twining (2005), Have Concepts, Will Travel: Analytical Jurisprudence in a Global Context, International Journal of Law in Context, , pp. 540. Copyright 2005 Cambridge University Press.
Roger Cotterrell (2008), Transnational Communities and the Concept of Law, Ratio Juris, , pp. 118. Copyright 2008 Roger Cotterrell.
H. Patrick Glenn (2005), Doin the Transsystemic: Legal Systems and Legal Traditions, McGill Law Journal, , pp. 86398. Copyright 2005 H. Patrick Glenn.
Liam Murphy (2005), Concepts of Law, Australian Journal of Legal Philosophy, , pp. 119. Copyright 2005 Liam Murphy.
Oxford University Press for the essays: Leslie Green (2005), General Jurisprudence: A 25th Anniversary Essay, Oxford Journal of Legal Studies, , pp. 56580. Copyright 2005 Leslie Green; Ronald Dworkin (2004), Harts Postscript and the Character of Political Philosophy, Oxford Journal of Legal Studies, , pp. 137. Copyright 2004 Oxford University Press; Brian Z. Tamanaha (2001), Socio-Legal Positivism and a General Jurisprudence, Oxford Journal of Legal Studies, , pp. 132. Copyright 2001 Oxford University Press.
Springer for the essay: Michael Giudice, (2005), Ways of Understanding Diversity Among Theories of Law, Law and Philosophy, , pp. 50945. Copyright 2005 Springer.
University of Arkansas Press for the essay: Michael D. Bayles (1990), What is Jurisprudence About? Theories, Definitions, Concepts, or Conceptions of Law?, Philosophical Topics, , pp. 2340.
University of Notre Dame Law School for the essays: Brian Leiter (2003), Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, American Journal of Jurisprudence, , pp. 1751; John Finnis (2003), Law and What I Truly Should Decide, American Journal of Jurisprudence, , pp. 10729.
University of Toronto Press for the essay: Keith Culver (2001), Leaving the Hart-Dworkin Debate, University of Toronto Law Journal, , pp. 36798.
University of Western Ontario for the essays: Andrew Halpin (2006), The Methodology of Jurisprudence: Thirty Years Off the Point, Canadian Journal of Law and Jurisprudence, , pp. 67105; Danny Priel (2007), Jurisprudence and Necessity, Canadian Journal of Law and Jurisprudence, , pp. 173200.
Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.
Contemporary Legal Theory
The last thirty years have witnessed a proliferation of theorising about law, as well as reflection on the very practice of that theorising. As the discipline of legal theory has flourished, so have methodological debates and controversies. These debates are not only relevant to how legal theory understands its own enterprise: its problems and aims, and issues of scope. They are also relevant to many other aspects of the practice of legal theory, and its role vis--vis the practice of law and the practice of other related activities, such as legal scholarship and legal education. Further, as the ambitions of legal theory grow, so do questions concerning its relations with other disciplines, such as comparative law, but also, much more broadly, the social sciences.
This three volume series on Contemporary Legal Theory aims to track and project the relations between legal theory and related disciplines. Accordingly, the first volume is devoted to preparing the way, by assembling recent work on the methodology of legal theory. It examines the problems and aims of legal theory, issues of semantics and epistemology, perspectives on morality in the theory of law and issues of scope.
The second volume follows naturally from where the first volume ends, and takes up issues to do with mapping the intersections between legal theory and the social sciences. It is divided into three parts: first, it looks at methodological disputes and collaboration; second, it considers how both legal theory and the social sciences employ a variety of different modes of explanation of behaviour, and the role that these modes play in the construction of theories about law; and third, it surveys how both legal theory and the social sciences might work together to portray legal phenomena, especially insofar as one sets out to study the language of law in its social context as well as the place of laws within a broader context of normative phenomena.
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