The Quest for the Description of the Law

This book presents an alternative approach to law, which can liberate practice of law from the grip of theorists. It questions the use of philosophy and theory of law in legal practice and acknowledges the frequent need for profoundly difficult judgments.

My dissertation for LLD (or JSD) Att beskriva rätten (To Describe Law), which was written under my bachelor surname of Andréasson, was presented for public exa- nation on Nov 4, 2004. Since then the text has been developed in two separate directions. On the one hand, three of the chapters have been made more accessible to students of jurisprudence and have been included in the second edition of the te- book Rättsfilosofi, samhälle och moral genom tiderna edited by Joakim Nergelius. On the other hand, the whole dissertation has been revised, translated and published as the present book. In the time that has passed since my dissertation, many things have changed. On the personal level, my friend and tutor, Aleksander Peczenick, was sadly taken away from my circle of colleagues. In contrast to that sad event, I have spent two nine-month periods on paternity leave, raising my two children, Selma and Bernhard. This past year, I have decided to move from theory to practice and have started working in a court of law. During my work on the dissertation, I had the opportunity to spend a rewarding term at Rutgers University in Camden, NJ visiting Professor Dennis Patterson. Since this book is a continuation of that project, it feels appropriate to repeat my thanks to Professor Patterson and STINT (The Swedish Foundation for International Cooperation in Research and Higher Education) for making that visit possible.

Presents an alternative approach to law Analyzes different legal philosophies Analyzes some wideley spread conceptions of meaning, truth and reality Includes supplementary material: sn.pub/extras

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The book suggests that it is reasonable to ask why we should try to give a general description of law. It analyses the theories of Jeremy Bentham, John Austin, H.L.A. Hart, Joseph Raz and Ronald Dworkin. It then attempts to turn our attention away from general descriptions of the law, to the approach that has made us present and use such descriptions. This shift of attention is suggested by the difficulties encountered in our attempts to agree upon any of the proposed descriptions. The book presents an alternative approach to law. With the alternative approach we must question the use of assuming that law is something we can describe in general terms.The alternative approach is also supported by a critique of some widely spread conceptions of meaning, truth and reality. By showing how a pragmatic conception of truth and reality can be consistent and how it helps us focus on the most relevant matters, these arguments offer additional reasons for the change of approach. This change can liberate practise of law from the grip of theorists trying to force law into a mould more appropriate in natural science. The use of philosophy and theory of law in legal practice is strongly questioned and the frequent need for profoundly difficult judgements is acknowledged.

Contenu
Legal Positivism and Real Entities.- H.L.A. Hart and the Framework of Legal Thought.- Joseph Raz the Social Thesis and the Sources Thesis.- Ronald Dworkin and Restricted Legal Interpretation.- Common Approaches in Reasoning.- The Modernist Approach.- Scepticism, Relativism, Perspectivism .- Descriptive Theory of Law.- Interpretation.- The Quest for the Description of the Law.