TEORIA DO DIREITO E ANÁLISE CONCEITUAL: UMA CRÍTICA À METODOLOGIA DE SCOTT J. SHAPIRO - DOI: 10.12818/P.0304-2340.2014v65p261

Abstract

This paper analyses the methodology defended by Scott J. Shapiro in his recent book Legality. In his word, Shapiro argues that legal theory should explain the nature of law through the identification of its necessary features. The theorists should therefore answer two kinds of questions: the identity question and the implication question. The adequate method to answer these question is, according to him, conceptual analysis. According this method, the theorists should construe their explanations based on a set of truisms, obvious and uncontroversial truths about the law. These truisms function as important tests to any explanation of the nature of law: an explanation that do not fit with them should be rejected (or at least there are good reasons to reject it). The method proposed by Shapiro, however, is subjected to a number of critiques. The paper shows that the appeal to truisms is insufficient to explain some important divergences between legal theorists; that Shapiro do not advances a non-circular argument to defend some truism when it is questioned and to the theorist to choose between either revise or maintain his analysis in face of a possible counterexample. For the method be viable, it would be necessary a robust consensus in our intuitive judgments