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John McKay

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Legal Theory; Legal Philosophy; General Jurisprudence; Naturalization; Naturalism


Positivist and natural law theories are interested in answers to different questions, and are mostly compatible. But positivists and empirical legal theorists (ELTs) each claim to offer a genuinely descriptive account of law, and a better position from which to criticize real world legal institutions. They deploy different heuristics, primarily in the guise of points of view (internal vs external), which betray differing commitments to offering a descriptive account of law, and to the separation thesis. They also have different ideas about the nature of the object in question and consequently how it might be known. For positivists law is artificial and dependent on the existence of states (though states are left untheorized). For ELTs law is a naturally occurring social phenomenon (analogous to language) discernible by structures and functions. These different ontologies suggest different epistemic standards (normal vs special) for knowing the object. This paper clarifies key points of dispute between these two camps, and argues that on several fronts ELT offers up a more plausible and useful theory of law. A recent paper by Brian Leiter, “The Demarcation Problem in Jurisprudence,” and some of his earlier work on naturalizing jurisprudence, help to frame the discussion.