Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology

Abstract

In the last several years, analytic general jurisprudence has become increasingly attentive to its own methodology. No longer content with its traditional first-order questions revolving around the varieties, commitments, and defensibility of legal positivism, the discipline of jurisprudence has turned inward, asking the second-order question, How should one do jurisprudence? The methodology debate is not a mere proxy war between rival positivists and their mutual foes. In the first instance, second-order methodological positions on the role of moral evaluation in jurisprudence do not correspond directly to first-order positions regarding the relationship between legality and morality. Furthermore, the methodology debate focuses on one of the few planks in nearly all of the contenders' platforms, forcing legal philosophers to justify or jettison their shared commitment to conceptual analysis. In this article we introduce the methodology debate, draw attention to the merits and shortcomings of various positions already staked out, and contribute to the debate by, albeit briefly, defending the claims that moral evaluation has (at least) a modest role in analyzing the concept of law and that conceptual analysis, or rather, many of its incarnations, is defensible and indeed inescapable in jurisprudence.