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The Rule of Law and the Challenges to Jurisprudence

Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012

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Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka

Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
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Is ‘Naturalised’ Methodology in Legal Theory Helpful?

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Luka Burazin

Introduction

According to the predominant methodology of legal theory, the concept of law is primarily determined on the basis of an a priori conceptual analysis and the intuitions of the theorist expounding his theory of law. The legal theorist uses introspection and leans on his own intuitions about the possible instances of law which he then takes as the basis for determining the essential features of law. However, the a priori character of conceptual analysis and the type of intuitions used in this methodological approach have recently been strongly challenged by Brian Leiter. According to Leiter, one should ‘naturalise’ legal theory in such a way that it be grounded in empirical research, which then enables an a posteriori conceptual analysis of the concept of law. In view of the fact that law is a concept ‘people use to understand themselves’, Leiter suggests that the introspections and intuitions of legal theorists be replaced by empirical research into the views of those subject to law, i.e. ordinary people’s views about the law. Such a ‘folk’ view would represent the so-called internal point of view in the widest sense – the point of view of all the addressees of legal norms in a legal system who recognise these norms as reasons for their actions. However, since the concept of ‘law’ is an artefact concept, which does not allow for analysis in terms of its necessary or essential features, Leiter is also sceptical about the possibility of...

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