| Recent legal philosophy has included a methodological dispute between those that advocate a broadly descriptive method of conceptual analysis for the concept of law and those who claim that the nature of law requires theorists to see themselves as advancing controversial conceptions of law, defending them with strongly normative judgments. I explain that these two positions can be harmonized by treating the law as something to be understood functionally, even if theorists cannot (yet) articulate what its particular function might be. I show that this functionality need not entail a claim that the law is a functional kind or that its function is somehow unique to it, only that a functional explanation of the law would be useful for organizing its conceptual elements. Treating the law in this way requires an analysis of the difference between the perspectives of participants in a legal system and those theorizing about that system. Additionally, I show that such functionality can be accommodated by both descriptive theorists and interpretivists or other normative theorists, although interpretivists will be resistant to the instrumentalization of their normative judgments. I do this by invoking John Searle's theory of institutional facts, viewing legal propositions as claims of such institutional facts. The implication of this argument is that a complete first order general jurisprudence will include both a theory of the concept of law and an exposition of the criteria for valid legal judgments in the context of an attempt to provide a functional explanation for law. |
