A way in which proponents of the point of view of constructive interpretation might deny what some other methodological views claim to be to deny that it is even possible to give a simplistic explanation of the law. (For discussion, see Marmor 2013, 218.) The idea would be to affirm that law is a normative practice and that normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist could either deny that legal facts are truly normative (in which case the requested reduction would not be a problem), or claim that any successful reduction must reduce legal facts to a set of facts containing normative facts (in which case a version of natural law theory might seem appealing). A well-known type of reductionist view is naturalized jurisprudence. Brian Leiter was the most prominent defender at this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence assumes that the purpose of legal theories is to explain the nature of the law itself (and not anyone`s conception). However, it is characteristic of settled case-law that it also insists on a purely empirical methodology (Leiter 2007, 180-81, 183-99). (See also the entry on naturalism in the philosophy of law.) It follows that, in order to claim legitimate authority, something must be of the type who is capable of claiming it, that is, capable of fulfilling such a mediating role. What kind of things can claim legitimate authority? There are at least two such characteristics that are necessary for it to be empowered: first, for something to claim legitimate authority, it must be such that its policies are recognisable as authoritative guidelines, without the need to rely on the same grounds as the relevant directive. If that condition is not met, i.e. if it is impossible to identify the relevant Directive as such without invoking the same grounds as those invoked by the Authority, the Authority could not fulfil its essential role as mediator.
In short, it might not make the practical difference it`s supposed to. It should be noted that this argument does not relate to the effectiveness of the authorities. The issue is not that authorities cannot work effectively if authoritative guidelines cannot be recognized as such. The argument is based on the reasoning of the authorities in our practical argumentation. Public authorities are there to make a practical distinction and they could not make such a distinction if the Authority`s directive cannot be recognised as such without recourse to the grounds on which it is called upon to rule. In other words, there is no point in having a binding directive if, in order to know what the directive is, you have to make the same reasoning that is supposed to replace confidence in the directive. Second, for something to claim legitimate authority, it must be able to form an opinion about how its subjects should behave, regardless of the subjects` reasoning about their own reasons for acting; The authority requires a certain number of authors. However, a question that arises for this position concerns the extent to which it is a different methodology than those discussed above. If metanormative inquiry focuses on legal thought and discourse, we seem quite close to the picture of conceptual analysis of how jurisprudence should proceed.
On the other hand, if the subject of the inquiry focuses on how legal entities or real estate fit into reality in general, then the opinion seems quite close to the naturalistic position that the subject of the case-law investigation is the phenomenon of law itself. Nevertheless, one of the particular attractions of the metanormative point of view is perhaps that it can show how the image of conceptual analysis and the naturalistic image capture different parts of the larger enterprise of the task at which the jurisprudence is concerned. Thus, instead of claiming to replace the other methods discussed above, the metanormative view, if reasonable, would remove a privileged starting point for jurisprudential investigation (such as the metaphysics of legal content, the semantic analysis of legal statements or the nature of legal obligations). Probably the most influential argument for the assumption that legal theory is inherently evaluative is based on the idea that legal theory is an interpretive enterprise in Dworkin`s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor, 2011, pp. 126-30). To say that legal theory is an interpretive project is to claim that a complete understanding of what law is requires interpreting it as the best example of the kind of things it is. Moreover, one might think that to interpret legal practice as the best example of the kind of thing it is, one must make thick judgments about the law. (See entry on legal interpretationism.) It may be interesting to note that legal theories that claim that legal validity depends in part on moral considerations must also share some view of the nature of morality.
They must adopt an objective attitude towards the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also become subjective, which would pose serious problems for the question of what the law is. Some legal theories, however, emphasize the subjectivity of moral judgments, embracing the skeptical conclusions that emerge about the nature of law. According to these skeptical theories, law is indeed deeply dependent on morality, but since these theorists assume that morality is completely subjective, this only shows that law is also deeply subjective, always at stake, so to speak. This skeptical approach, which is fashionable in so-called postmodern literature, crucially depends on a subjectivist theory of values, which is rarely articulated in a differentiated way in this literature. A third way, in which legal theory could in principle be evaluative, although not controversial, is proposed by the prescriptive vision discussed in section 2.1.3. If the task of a first-rate legal theory is to identify the concept of law that we should apply in the most desirable way, then there is a sense in which the resulting legal theory would naturally be evaluative. Nevertheless, as noted above, prescriptive theories aim to answer a different question from theories in the categories of conceptual, reductive or interpretive analysis. So what matters to the debate about whether legal theory is evaluative is not whether legal theory could be evaluative in principle, but whether it is inevitable or necessary. But even this richer understanding of conceptual property and the fleshier picture of conceptual analysis it produces has been widely criticized (Marmor 2013, 215-217; Raz, 2004, p. 10; Leiter 2007, 177-79). An immediate question arises is which legal concept represents exactly the correct purpose of a legal theory.
Is this the legal concept that legal practitioners in a particular jurisdiction possess? Or is it a universally shared legal concept? Worries threaten one way or another. If a legal theory seeks only to capture the concept of law used in a particular jurisdiction, this would make the theory narrow-minded and it could lose its interest to those who do not deal with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared legal term used by practitioners in all jurisdictions – or if there is, it is doubtful that it is more than the kind of thin concept one possesses because one knows what the word “law” means in its legal sense. Throughout human history, law has been known as a coercive institution that imposed its practical demands on its subjects through threats and violence. This striking feature of law has made it very tempting for some philosophers to assume that the normativity of law lies in its coercive aspect. But even within the legal positivist tradition, the coercive aspect of the law has led to fierce controversy. Early jurists such as Bentham and Austin argued that coercion is an essential feature of law and distinguishes it from other normative fields. Legal positivists of the 20th century tend to deny this, arguing that coercion is neither essential to the law nor really decisive for the performance of its functions in society. Before unpacking the various issues of this controversy, it is perhaps useful to note that the debate on the coercive aspect of the law is a good example of jurisprudential debates that deal with what might be an essential or necessary feature of the law, regardless of its particular manifestations in a particular legal system. How these claims about the nature of the law are to be understood, and whether these claims are metaphysical or something else, perhaps morality, is discussed in section 2.1.