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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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The Concept of Law in the Analytical and Post-Analytical Theory

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1 Two Approaches to Language in Analytical Philosophy

The 20th century was the scene of “linguistic turn” in European philosophy. Independently from one another, researchers in Great Britain, Austria, and Poland noticed the fact that language is an intermediary between the subject and external reality (epistemological issues), co-constitutes reality (ontological issues), may be a cognitive tool (methodological issues), and a tool of influence (ethical and political issues). Idealism was rejected. Instead of creating philosophical systems that embrace the totality of reality, a philosopher was to seek a neutral point of view and focus on a specific fragment of a problem. Classical philosophical problems were reformulated in order to highlight their connections with language. Linguistic analysis became the new promising method of solving these problems. In the analytical philosophy, there was no consensus as to what the method was to look like. Moreover, there was no consensus as to what the “solution” of a philosophical problem should be. Is creating a satisfactory theory that encompasses the broadest possible class of examples an acceptable solution or will it be the reformulation of a question in order to show its invalidity? Nevertheless, similarities of goal, method, and style allow to speak of a single branch within contemporary philosophy. The goal was to overcome idealism and create a scientific philosophy method was broadly understood analysis, modeled on the precision, rigor, and unambiguity of natural sciences. The style was based on the quality of argumentation, where the logical coherence was more...

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