The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited
Article first published online: 23 FEB 2006
Volume 19, Issue 1, pages 26–54, March 2006
How to Cite
BLANCO, V. R. (2006), The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited. Ratio Juris, 19: 26–54. doi: 10.1111/j.1467-9337.2006.00316.x
- Issue published online: 23 FEB 2006
- Article first published online: 23 FEB 2006
Abstract. Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet.