Jurisprudential Disagreements and Descriptivism

Dan Priel 

York University - Osgoode Hall Law School
August 30, 2013

Osgoode CLPE Research Paper No. 43/2013 
Abstract:      
Many contemporary legal philosophers argue that general jurisprudence is “descriptive.” I challenge this view in this essay by focusing on one familiar aspect of jurisprudence: persistent disagreements among legal philosophers. I argue that this fact is in tension with the claim that jurisprudence is descriptive. I consider several possible reconciliations of jurisprudential disagreements with descriptivism, but I argue that none of them succeeds. I then argue that persistent jurisprudential disagreements are easy to explain from within a normative framework. I conclude by suggesting that legal philosophers abandon descriptivism in favor of a view that more explicitly sees legal philosophy as part of normative political philosophy.

Number of Pages in PDF File: 22

Keywords: jurisprudence, descriptive jurisprudence, jurisprudential methodology, legal positivism, H.L.A. Hart

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318588