Belgrade Legal Theory Group organized its fourth event in 2023 with Dan Priel (Osgoode Hall Law School, York University), as part of a series of lectures on the naturalization of legal theory, on the topic of different methodological approaches to legal philosophy.
Dan started off by presenting some of the main problematic aspects of Julie Dickson’s new book Elucidating Law. One of the first questions is why legal philosophy should have a special methodology. If we all agree that law is a social institution just like all others (religion, family, nation etc.), then it could be encompassed by the philosophy of social science, while such a subsumption does not refute that law has something unique in itself.
Afterward, Dan pointed out that a non-isolationist view on legal philosophy must consider whether or not philosophy has priority over empirical and normative inquiry. One approach is Kelsenian which states that in order to know what we are talking about, we must first do a conceptual analysis. But Dan pointed out that in reality such a process is quite rare and on the contrary – most of the time our understanding of a phenomenon requires us to go the other way around. We first assess if something has value and what the facts and intuition tell us and then we proceed to the concepts. Hart’s jurisprudence as descriptive sociology could be seen as the alternative approach (supplemented by ordinary-language philosophy), as well as naturalized jurisprudence.
Following was the Q&A part of the event, with substantial interest from the audience.
The audience was focused on various aspects of the topic, but mostly on the question of the relationship between conceptual analysis and normative claims, as well as Hart’s refutation of the naturalization of jurisprudence.
Dan answered by claiming that normative, conceptual and empirical claims move in a circular way between each other and that Hart explicitly refuted naturalization by claiming that methods of natural sciences are inappropriate for the explanation of human behavior, since it is meaningful action. In essence, all anti-naturalistic views could be understood as versions of interpretivism in the Dworkinian sense.
Ending the meeting, Sava Vojnovic thanked everyone for an excellent discussion, as well as Dan for the interesting lecture.