Legal Theory and Legal Doctrinal Scholarship

Abstract

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the 'mainstream' discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.