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Can Philosophy Help Legal Doctrine?

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Abstract:

Abstract.

Legal doctrine is a kind of legal research, occupying the central position in professional legal writing, e.g., handbooks, monographs, commentaries and legal textbooks etc. It consists of a description of the literal sense of legal statutes, precedents etc., intertwined with many moral and other substantive reasons. Legal doctrine has normative components, and produces coherence in the law in many aspects. It also produces some justice. However, legal doctrine has faced repeated criticism, not least from minimalist philosophers.

The author proposes a “Copernican revolution” as regards the relation of legal theory to philosophy. Instead of attempting to make legal theory follow one of the notoriously controversial moral theories, he tries to adjust philosophy to legal theory. In the search for philosophy adjusted to legal doctrine, he prefers cautious (weak) philosophical positions to courageous (strong) ones. He also assumes a society-centered theory of normativity, a coherentist theory of legal knowledge and a coherentist theory of justice.

However, a law theorist has no chance to elaborate such theories in detail. Hence, the author poses the following questions to philosophers: How can a law theorist assume society-centered normativity without being forced to enter the controversies around collectivism? How can a law theorist assume the common core of morality for society without being forced to enter technical controversies in political philosophy? How can the law theorist base his thinking on the coherence theory of law without being forced to enter technical controversies around the concept of coherence? How can the law theorist avoid hopeless ontological controversies?

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.0952-1917.2004.00258.x

Affiliations: Aleksander Peczenik, Lund University, Faculty of Law, Sweden

Publication date: March 1, 2004

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