Jurisprudential Inquiries between Discourse and Tradition: Towards the Incompleteness of Theoretical Pictures
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Date
2009Author
Del Mar, Maksymilian
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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-astradition
(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).