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Philosophical Foundations of the Nature of Law$
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Wil Waluchow and Stefan Sciaraffa

Print publication date: 2013

Print ISBN-13: 9780199675517

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199675517.001.0001

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Farewell to Conceptual Analysis (in Jurisprudence) *

Farewell to Conceptual Analysis (in Jurisprudence) *

(p.209) 9 Farewell to Conceptual Analysis (in Jurisprudence)*
Philosophical Foundations of the Nature of Law

Andrei Marmor

Oxford University Press

This chapter attempts to establish the thesis that analytical legal philosophy is not an exercise in conceptual analysis. While conceptual analysis may have played some role in H. L. A. Hart's jurisprudence, it was rather tangential to the main project of his theory. Hart's main objective in The Concept of Law was not essentially different from that of Austin, namely, to provide a reductionist theory of law. The main purpose of Hart's theory was to offer an explanation of law in terms of something more foundational in nature, that is, in terms of social facts, which, in turn, can be explained by reference to people's actual conduct, beliefs, and attitudes. Hart's objection to Austin's reductionism was not to the idea of reduction but to the particular building blocks that Austin used in articulating his theory. The chapter argues that the main methodological thrust of legal positivism is reductionism, not conceptual analysis. And the main objections to legal positivism are best seen as a denial of the possibility of such a reduction.

Keywords:   analytical legal philosophy, H. L. A. Hart, law, Austin, reductionism, legal positivism

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