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Jurisprudential inquiries between discourse and tradition: Towards the incompleteness of theoretical pictures

Jurisprudential inquiries between discourse and tradition: Towards the incompleteness of theoretical pictures
Maksymilian Del Mar

2009

School of Law, University of Edinburgh, Edinburgh EH8 8AQ, UNITED KINGDOM.

ABSTRACT

This thesis offers an alternative history of theoretical pictures of law and legal work. It argues that these theoretical pictures can be understood as giving primacy to either the explanatory paradigm of discourse on the one hand, or to the explanatory paradigm of tradition on the other. Broadly speaking, discourse-oriented explanations of law and legal work tend to focus on the nature, function and status of normative requirements themselves. Tradition-oriented explanations, on the other hand, tend to focus on the long-term acquisition and transmission, in specific contexts, of common ways of seeing and doing.

The first part of the thesis is composed of five sections. The first four are dedicated to revealing the basic features of the above-mentioned explanatory orientations, i.e., law-as-discourse (IA1), legal-work-as-discourse (IA2), law-as-tradition (IB1), and legal-work-as-tradition (IB2). The fifth section (IC) uses these basic features to read five distinct works in legal theory as oscillating between the two explanatory paradigms.

The second part of the thesis argues that to the extent that we recognise that jurisprudential inquiries are oriented towards either the explanatory paradigm of discourse or that of tradition, we are on our way to recognising the incompleteness of theoretical pictures of law and legal work. This second part offers three further arguments, which are designed to encourage the adoption of an attitude that acknowledges the incompleteness of the results of one’s inquiries. First, it is shown that truth can be the aim of an inquiry, but that this is not incompatible with incompleteness understood from the first person post factum perspective (IIA). Second, it is argued that the results of one’s inquiry are not complete because an inquiry only ever appears complete to one when (and only when) one does not problematise its central terms (IIB). Third, and finally, it is argued that the highly intensive mode of self-reflection engaged in by theorists practicing the examined life may lead to certain limitations in the construction of theoretical pictures (IIC).