This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...) to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary. (shrink)

What is a right? What, if anything, makes rights different from other features of the normative world, such as duties, standards, rules, or principles? Do all rights serve some ultimate purpose? In addition to raising these questions, philosophers and jurists have long been aware that different senses of ‘a right’ abound. To help make sense of this diversity, and to address the above questions, they developed two types of accounts of rights: models and theories. This book explicates rights modelling and (...) theorising and scrutinises their methodological underpinnings. It then challenges this framework by showing why the theories ought to be abandoned. In addition to exploring structural concerns, the book also addresses the various ways that rights can be used. It clarifies important differences between rights exercise, enforcement, remedying, and vindication, and identifies forms of legal rights-claiming and rights-invoking outside of institutional contexts. (shrink)

ABSTRACTAt first sight, the work of the German legal philosopher and constitutional theorist, Robert Alexy, appears to offer a welcome counter-example to the general insulation of Anglo-American ju...