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A Post-Analytical Approach to Philosophy and Theory of Law

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Edited By Andrzej Bator, Zbigniew Pulka and Jan Burzyński

Post-analytical philosophy of law departs from the traditional view which considers philosophical cognition merely as a sense-making and optimizing activity. It also questions the apparently universal and objective character of the theorems put forward by existing analytical philosophy. Just like every scientific trend whose name is supplemented with the "post" prefix, it does not break with its past, but rather seeks to critically revisit its established achievements. The main goal of post-analytical philosophy is no longer to impose a conceptual structure upon chaos in the realm of legal and political phenomena. Rather, it seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify – if not mystify – the legal and political reality. This kind of diagnosis paves the way towards the construction of a positive program of post-analytical philosophy of law, which the focus of this book.

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Post-Analytical Theory and Philosophy of Law. New Problems, New Research Perspectives?

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1 Introduction

In the beginning, I would like to offer a few remarks about the title of this chapter, as well as about the goal of the deliberations articulated in the subtitle. The post-analytical idea itself is a notion that provokes doubt,1 especially if used in the context of the philosophy of law. It is a relatively new notion and not yet grounded in general jurisprudence. The doubt arrives already with an attempt to place law research in the post-analytical perspective either on the side of theory of law and philosophy of law. Traditionally, the problem of the analytical character of law was located unambiguously in the area of the theory of law, even when its roots may be traced back to “analytical philosophy.” It turned out, therefore, that not all “philosophy” needs to be speculative and this certainly is not true of analytical philosophy. The term “analytical philosophy” seemed to have been reserved to the general reflections on language. When applied to law or jurisprudence as a detailed discipline it was usually perceived a “theory.” It was accordant with the rule of “analytical philosophy” as a general discipline that cooperates with various specialized sciences, while employing and establishing its own universal rules of research methodology. In jurisprudence, there seemed to be no place for a “particular” philosophy, so the name of the discipline contained a clearly dominant “analytical theory of law.”2 However, the post-analytical approach breaks the established rule of separating “philosophy” from...

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