The possibility of theorising the law as a normative social phenomenon: the prior phase and theoretical presuppositions

Abstract

For the last two decades, there has been an impasse between the two main camps of positivism and normativism in the ongoing methodology debate in jurisprudence. Furthermore, there have been recent attacks on the foundations of legal theory by naturalists and legal sociologists. I propose a novel way to analyze the foundations of jurisprudence in terms of theoretical presuppositions in an attempt to situate the methodology debate within the wider context of the philosophy of social science and understanding. The analysis inquires into the initial stage of theorizing where the subject matter of a study is constituted. I call this the prior phase. This foundational inquiry is built on the implications of the Gadamerian positive account of prejudices. By facilitating this novel way, I show that the foundational worries about jurisprudence stem from its central focus on defending the distinct normativity of the law. I argue that a Gadamer-inspired approach to legal normativity is the key to overcome the impasse and bring a livelihood to general jurisprudence.