Analytical jurisprudence became popular almost instantly in 1961 with the
publication of H.L.A. Hart’s The Concept of Law, but as readers familiar
with this classic text know all too well, Hart included no sustained discussion
of the particular method he employed to arrive at some of the most
distinctive claims discussed in contemporary legal theory today. Many
have supposed that Hart was simply engaged in conceptual analysis, a
common philosophical technique of discerning necessary and sufficient
conditions of some concept by a priori reflection on possible instances
to see where our linguistic intuitions lie. On the basis of this method, we
learn about the concept of law by making explicit what is already implicit
in our knowledge of law. No new experience or neutrality-compromising
interests are invited or required.
It might have been possible for legal philosophers working during
Hart’s time to follow him in assuming rather than explaining the use and
goals of analytical jurisprudence, but this is no longer possible for the
current generation. The association of analytical jurisprudence with conceptual
analysis of law, and the persistent attack on conceptual analysis
both within and outside legal philosophy, have forced analytical legal
theorists to make plain the nature of their method, and investigate any
connections it might (or might not) have with familiar forms of conceptual
analysis. This book offers some initial steps towards this objective. I
aim to demonstrate that the challenges often levelled against analytical
jurisprudence, and especially its perceived use of conceptual analysis, help
to show – perhaps surprisingly – that conceptual theories of law such as
Hart’s are not in fact best understood as the results of conceptual analysis,
but instead of constructive conceptual explanation of law. While conceptual
analysis concerns itself with elucidating or making explicit what is already
implicit in some particular culture’s self-understanding
of law, constructive
conceptual explanation attempts to correct, revise or improve on
what might be mistaken, distorting or parochial in that self-understanding
when tested against observable social reality.