On philosophy in American law: Analytical legal philosophy

THE RECEPTION OF ANALYTICAL LEGAL PHILOSOPHY: Analytical legal philosophy is the study of the nature of law, and the nature of legal concepts, through analysis – the breaking down to component parts, the search for necessary and sufficient conditions, or the rational reconstruction of a practice. It is connected to, or a subcategory of, the analytical tradition in philosophy generally, a tradition that has dominated English-language philosophy for the past century. In Britain, analytical legal philosophy is at the center of jurisprudence, a position it has held basically since John Austin's work in the early nineteenth century (e.g., Austin 1995). It is not accidental that most of the central work in analytical jurisprudence has been done by theorists teaching at British universities (e.g., Austin, H. L. A. Hart, Joseph Raz, and Neil MacCormick). In particular, modern English-language legal philosophy largely derives from the work of Hart (1968, 1982, 1983, 1994). In other countries, legal philosophy is often dominated by theories that derive from the work of another analytical legal philosopher (and another legal positivist), Hans Kelsen (e.g., 1992). Matters have always been different on this side of the Atlantic. In the United States, analytical legal philosophy has been both consistently misunderstood and marginalized. For an American scholarly audience that tends to focus on practical questions – in particular, how should judges decide cases? And how should the Constitution be interpreted and applied? – the analytical questions about the basic nature of law and legal concepts seem out of place.