Analytical Jurisprudence and Contingency

Abstract

Someone interested in analytical jurisprudence is bound to find self-characterisations of the discipline both intriguing and frustrating. They are intriguing since they offer an attempt at articulating the methods and purposes of a complex enterprise with a long and rich history. They are frustrating since they often appear as brief preliminaries or short concluding remarks which leave unanswered as many questions as they answer. Perhaps two of the best known statements of the task of analytical jurisprudence are made by H. L. A. Hart and Joseph Raz. In the Preface to his most famous work, The Concept of Law, Hart said that his book might be characterised as an ‘essay in descriptive sociology’,1 and in the concluding section of a now famous article, Raz wrote that it ‘is a major task of legal theory to advance our understanding of society by helping us understand how people understand themselves.’2 Fortunately, in recent years reflection on the methods and purposes of analytical jurisprudence has grown from isolated statements into sustained self-reflection, as there is an emerging and sophisticated literature focused squarely on the methodology of legal theory itself.3 The range of existing views, and the insights they draw from recent work in the social sciences, epistemology, and philosophy of language, are far too broad to treat properly in one short essay, so I propose to concentrate on what I think is a critical issue, which is not yet settled, in the development and understanding of analytical jurisprudence.