Are Jurisprudential Debates Conceptual? Some Lessons from Democratic Theory

The dominant view among legal philosophers is that jurisprudential debates about the nature of law are conceptual. In this article I challenge this view. I do so by comparing these debates to debates about the justification of democracy and showing that the arguments found in both are often very similar. I demonstrate that in both domains, there are arguments on one side that explain an institution (either law or democracy) in terms of its ability to help people lead a better life, and there are arguments on the other side that highlight the value of these institutions in promoting political participation. The arguments for democracy are unquestionably normative, and I argue this suggests that the jurisprudential arguments are normative as well. Based on this conclusion, I then offer some tentative suggestions for rethinking familiar jurisprudential terrains—now usually understood as dealing with conceptual questions—in normative terms. © 2012, York University Osgoode Hall Law School. All rights reserved.