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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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The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited

The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited

Towards an Integrative Jurisprudence*

(p.101) 5 The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited
Philosophical Foundations of the Nature of Law

Imer B. Flores

Oxford University Press

This chapter reflects on the nature of law from a contemporary perspective. It addresses questions such as: Does law have a nature or even an essence? Can it be defined or explained? If so, which and of what type are the characteristics that define or explain it? The chapter is organized as follows. Section II argues that an exclusive focus on purportedly sufficient and/or necessary features or properties of law leads to a false or impoverished picture of its nature. We should instead, direct our attention to features or properties that represent non-necessary but nevertheless important or valuable aspects of the phenomenon we seek to understand. Section III considers the views of Oliver Wendell Holmes Jr., who successfully integrated both logic and experience into law, along with a pluralistic methodological approach to legal rationality. Section IV sketches an analysis of the concept of legal rationality by pointing to the different levels, spheres, or types of legal rationality. Finally, Section V presents a general, very tentative conclusion regarding the nature of law vis-à-vis legal rationality.

Keywords:   law, nature, Oliver Wendell Holmes Jr, legal rationality

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