Exploring the Notion of Necessity in Essentialist Legal Theory

Abstract

AbstractEssentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.