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The Methodological Problem in Legal Theory: Descriptive and Normative Jurisprudence Revisited

Rodriguez-Blanco, V (2006) The Methodological Problem in Legal Theory: Descriptive and Normative Jurisprudence Revisited Ratio Juris, 19 (1). pp. 26-54.

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Abstract

Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet.

Item Type: Article
Subjects : Law
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
AuthorsEmailORCID
Rodriguez-Blanco, VUNSPECIFIEDUNSPECIFIED
Date : 23 February 2006
Identification Number : https://doi.org/10.1111/j.1467-9337.2006.00316.x
Copyright Disclaimer : Copyright 2007 Wiley
Additional Information : Full text not available from this repository.
Depositing User : Symplectic Elements
Date Deposited : 09 Sep 2016 14:59
Last Modified : 09 Sep 2016 14:59
URI: http://epubs.surrey.ac.uk/id/eprint/812081

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