Consequences of Pragmatic Conceptualism. On the Methodology Problem in Jurisprudence

In the past decade the debate on jurisprudential methodology has seen a notable revival of interest. On the one hand, the traditional terms of this debate have been enriched with new argumentative resources, which are meant to clarify whether jurisprudential claims can describe the social reality of law or necessarily aim at modifying it . On the other hand, a further philosophical challenge, namely that of naturalized jurisprudence, has attempted to reframe jurisprudential methodology by claiming that jurisprudence is the abstract and general part of the empirical research about law and thus has no special method of investigating its subject matter. All this makes the debate on the nature of jurisprudence particularly lively at present day and rebuts the widespread prejudice according to which jurisprudential methodology is either frivolous, since it simply reflects the narcissism of legal theorists, or pointless, because the adequacy of a jurisprudential view does not depend on its methodological premises but on the account of law it is able to give. Actually the discussion of methodology issues has turned out to be relevant in contemporary jurisprudence both for testing the consistency of a theoretical conclusion with its premises and for evaluating alternative claims on the nature of law. In this paper I will discuss some of these issues by focusing on Jules Coleman’s contribution to jurisprudential methodology. In particular, I will argue that Coleman’s methodological stance gives an original answer to the challenge of normative jurisprudence to descriptive approaches in legal theory, as well as to the challenge of naturalized philosophy to conceptual analysis. At the same time, however, I think that Coleman’s methodology triggers off some philosophical problems which need to be delved into by legal theorists. The discussion of these problems will permit, among other things, to clarify some substantial thesis of Coleman’s inclusive positivism, which run the risk to be misunderstood if considered out of the methodological context that makes them meaningful.