James Toomey (University of Iowa - College of Law) has posted Law's Meaning on SSRN. Here is the abstract:
“General jurisprudence” aspires to offer general theories of law. For as long as anyone can remember, contributions in the field have been organized by their answers to a single question—the relationship between law and morality—and thereby divided into paradigmatic “positivist” and “natural law” camps. But, as scholars have increasingly recognized, this way of organizing things misses something important—it is not only views on the relationship between law and morality that explains how jurisprudential theories fit together.
This Article argues that jurisprudence might rather be approached by taking stock of the theory of legal meaning that a jurisprudential account relies on. Any account of law presupposes a “theory of legal meaning”—of legal metaphysics, epistemology, and philosophy of language—with which it can make sense of basic legal concepts. Prominent jurisprudes have, throughout the twentieth century, drawn on and applied positions on these matters elsewhere in philosophy in their legal philosophy.
This way of thinking about jurisprudence offers a new taxonomy of its essential disagreements. “Traditional Natural Law” theory, for instance, is better thought of as a particular theory of meaning rather than an account of the relationship between morality and legality. Both Hart and Dworkin rejected its theory of meaning and held moderate, perhaps unstable, accounts of their own, with more in common than has been appreciated. At the same time, this approach suggests a way forward—before theorizing about the relationship between “law” and “morality,” it might be worth clearly reckoning with what those words could mean.
