The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It argues for a kind of reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the 'mainstream' discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. A more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship. The analysis leads to the identification of a dual function for the mainstream conceptual discourse: it has to be able to contribute to the doctrinal debates, and it has to be able to make sense of the external challenges to legal doctrinal scholarship. The specific contribution of conceptual theory to the doctrinal debates is the ability to assess the competing doctrinal claims in light of the epistemological characteristics of the legal doctrine in a modern legal system. The issue of pragmatism plays an important role in the essay. It is argued that there are limits to making conceptual legal theory pragmatist in spirit.
And from the paper:
When I claim that mainstream conceptual legal theory is functionally connected to the normative professional discourse on law, I am only a step away from the conclusion that most conceptual legal theories are driven by the epistemic needs of lawyers. But I am not willing to take that step as I am convinced that it would be wrong to think that conceptual legal theory should be addressed to lawyers. In fact, I have already indicated above that conceptual legal theory cannot really be driven by the epistemic needs of lawyers. I tend to think that lawyers rarely operate on the basis of conceptions of law.37 It is time to make that point a bit clearer here.
I admit that one can make a strong case for the view (as Richard Posner did38) that practitioners do not need conceptual legal theory at all: from the viewpoint of settling legal disputes, nothing hangs on it. Although it is not literally true,39 it comes very close to being true. I tend to think that conceptual legal theory cannot really address the actual epistemic concerns of lawyers, and it has a lot to do with what I call the limits of pragmatism in legal theory. There is a sort of inevitable incongruence between conceptual legal theory and legal practice that we have to keep in mind when we try to identify the functions of any conceptual discourse.
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I would like to make use of two senses of the term [pragmatism] in the present analysis. First, pragmatism can refer to an attitude, a way of approaching practical challenges. In this sense, pragmatists are those who are conscious about restricting their considerations to the factors that have direct practical relevance in the given situation.41 I assume that this is the key ingredient to the practical orientation of any good practitioner. We could say that a good practitioner is pragmatist by nature. Secondly, pragmatism can be a way of approaching theoretical problems. In this sense, pragmatism is a dedication to integrate the practical orientation of the good practitioner into the theoretical analysis. A theorist can have several reasons to be pragmatist in this sense. She may try to reach a better understanding of the way practitioners think. She may think that the mindset of the good practitioner can be helpful in tackling theoretical problems. Or, she may try to develop theories that are attractive to the practitioners — that they may find relevant for their practice. For some theorists, pragmatism is an expression of the hope or ambition that adopting a pragmatist attitude can enable theories to give some guidance to the practice.
I assume that law as a profession should be associated with pragmatism in the first sense: as practitioners, lawyers’ are required to limit their professional interests to what is directly relevant to their practice.42 It seems to me that, although taking up a pragmatist approach is helpful in legal theory, taking up the particular kind of pragmatism characteristic of good practitioners attitude is not a real option for legal theorists in general and conceptual legal theorists in particular. There is an obvious incongruence between the ways problems of law are perceived by practitioners and reflected by theorists. (And mainstream legal theorists are recurrently reminded of that incongruence by their realist critics.43)
There is a limit to emulating the practical orientation of practitioners even for pragmatist theories. As theories, they cannot retain the flexibility of the practitioner’s pragmatism.44 If we need to point to a specific problem that makes it hard for a theory to accommodate the practitioners’ attitude, it may be enough to consider the problem of coherence. Practitioners can afford to be far more insensitive to problems of coherence than theorists. Practitioners often combine theoretically incompatible considerations or calculations when they make practical judgments — without even noticing it. Or they often use different argumentative strategies in different situations without ever attempting to find principles that organize them into a coherent whole.45 And, of course, they very often follow some routine or tradition without reflecting on the possible inconsistencies inherent in them.
I very much enjoyed this stimulating paper. Highly recommended.