The Methodology of Legal Theory by Michael Giudice

Author:Michael Giudice [Giudice, Michael]
Language: eng
Format: epub
Tags: History, General, Law, Jurisprudence
ISBN: 9781351542623
Google: HTkrDwAAQBAJ
Publisher: Routledge
Published: 2017-07-05T16:15:32+00:00

III. PHILOSOPHICAL METHODOLOGY: THE NATURALISTIC TURN

Legal philosophers have, in my view, been having the wrong debate about jurisprudential methodology: legal philosophy is, indeed, descriptive, and trivially so, in exactly the way most other branches of practical philosophy have an important descriptive component. The real worry about jurisprudence isn’t that it is descriptive—of course it is (or tries to be)—but rather that it relies on two central argumentative devices—analyses of concepts and appeals to intuition—that are epistemologically bankrupt.

Start with concepts: On the dominant view, from Plato through Carnap to Peacocke, “every analysis of a concept is inextrictably bound to a collection of purported analyticities.”83 But post-Quine, we know (don’t we?) that the analytic-synthetic distinction does not mark an epistemic difference but a socio-historical one.

Philosophers long thought that some truths were necessary while others were contingent; in the twentieth century, under the influence of logical positivism, this was taken to be the distinction between those statements that were “true in virtue of meaning” (hence necessarily true) and those that were “true in virtue of fact” (hence only contingently true). The former “analytic” truths were the proper domain of philosophy; the latter “synthetic” truths the proper domain of empirical science. Quine argued that the distinction could not be sustained: all statements are, in principle, answerable to experience, and, conversely, all statements can be maintained in the face of recalcitrant experience as long as we adjust other parts of our picture of the world. So there is no real distinction between claims that are “true in virtue of meaning” and “true in virtue of facts,” or between “necessary” and “contingent” truths; there is simply the socio-historical fact that, at any given point in the history of inquiry, there are some statements we are unlikely to give up in the face of recalcitrant empirical evidence, and others that we are quite willing to give up when empirical evidence conflicts.

Without a domain of analytic truths—truths that are a priori and hold in virtue of meaning—it becomes unclear what special domain of expertise for philosophical reflection remains. If all claims are, in principle, revisable in light of empirical evidence, then would not all questions fall to empirical science? Philosophy would be out of business, except perhaps as the abstract, reflective branch of empirical science. And if analytic statements are gone, then so too is conceptual analysis: since any claim of conceptual analysis is vulnerable to the demands of a posteriori (i.e., empirical) theory construction, philosophy must proceed in tandem with empirical science, not as the arbiter of its claims, but as a reflective attempt at synoptic clarity about the state of empirical knowledge.

Even the leading contemporary champion of conceptual analysis, Frank Jackson, appears, on closer inspection, to acknowledge the import of the Quinean critique and thus to seriously deflate the role of conceptual analysis in philosophy. According to Jackson, conceptual analysis proceeds “by appeal to what seems to us most obvious and central about [the concept in question] … as revealed by our intuitions about possible cases.”84

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