The Limits of Theoretical Disagreements in Jurisprudence
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The Limits of Theoretical Disagreements in Jurisprudence Adam Dyrda1 · Tomasz Gizbert‑Studnicki2 Accepted: 7 October 2020 © The Author(s) 2020
Abstract This paper discusses the “positivistic” idea of the limits of law in various contexts: the conceptual problem of the “limits of law”, the limits of legal interpretation and the limits of theoretical disagreements in jurisprudence. In the latter case, we briefly show how contemporary “reflective” or “critical” positivist theories approach the possibility and limits of disagreements over the “grounds” of law. In what follows, we argue that these theories, which argue for a form of an “institutional” limit for admissible “legal” reasons as built upon theories of basic concepts or normative theories of interpretation, are themselves actually underdetermined by “legal culture” or, so to speak, a “folk theory of law”. In the final section, we outline how a folk theory of law constrains both conceptual and interpretive enterprises in jurisprudence. Keywords Limits of law · Limited domain of law · Limits of legal interpretation · Platitudes · Folk theory of law · Theoretical disagreements
1 Limits of law The question “what are the limits of law?” is ambiguous. The first basic interpretation of the question pertains to political philosophy and refers to the scope of legal regulations. It is understood as a question regarding the scope of legal regulations that is morally justified. Does the law have moral legitimacy to regulate all spheres of social life or should there be certain spheres of life that should be exempt from legal regulations? This is a normative matter since the answer must be based on considerations pertaining to the issues of individual freedom, collective values, etc. As such, this matter belongs to both political and moral philosophy.
* Adam Dyrda [email protected] 1
Jagiellonian Centre for Law, Language and Philosophy, Department of Legal Theory, Faculty of Law and Administration, Jagiellonian University in Kraków, Kraków, Poland
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Jagiellonian Centre for Law, Language and Philosophy, Jagiellonian University in Kraków, Kraków, Poland
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A. Dyrda, T. Gizbert‑Studnicki
A second interpretation of the question refers to the practical ability of law to effectively regulate certain fields. Are there any areas of social life in which the law is not able to effectively influence human behaviour and in which, therefore, any attempted regulations prove to be ineffective? The answer to this question must be based on sociological and psychological knowledge related to human motivation and regularities in the decision-making process. Such knowledge should be empirically justified. The question of the limits of law in this meaning pertains to the spheres of sociology and psychology of law. A third interpretation refers to the scope of legal authority and/or legal power. This relates to the idea that law provides limitations for authorities and lawmakers; the idea of the rule of law along with the requirement that legal decision
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