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Deadlock in Rule of Law Theory and the Potential of Internal Critique

Tom Hannant Orcid Logo

Legal Theory, Volume: 31, Issue: 3, Pages: 215 - 247

Swansea University Author: Tom Hannant Orcid Logo

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DOI (Published version): 10.1017/S1352325225100748

Abstract

This article proposes that theoretical debates over the Rule of Law can be revitalised through careful focus on methodology. First, it contends that the prevalent methodology of theory-construction is a rationally reconstructive form of conceptual analysis which makes deadlock practically inescapabl...

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Published in: Legal Theory
ISSN: 1352-3252 1469-8048
Published: Cambridge University Press (CUP) 2025
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URI: https://cronfa.swan.ac.uk/Record/cronfa70199
Abstract: This article proposes that theoretical debates over the Rule of Law can be revitalised through careful focus on methodology. First, it contends that the prevalent methodology of theory-construction is a rationally reconstructive form of conceptual analysis which makes deadlock practically inescapable. The methodology requires the invocation of deeply controversial conceptual cross-references: to reconstruct vague intuitions about the Rule of Law, theories are compelled to invoke other concepts over which deeply engrained disagreements persist. Second, turning to the possibility of overcoming or mitigating deadlock through critical argument, it argues that the capacity of critique to pose meaningful challenges to rival theories turns on its treatment of its target’s conceptual cross-references. Dissonant critique, which is premised on the rejection of a rival theory’s defensible conceptual cross-references, is seldom productive. Internal critique, which proceeds from rival theories’ conceptual cross-references, poses more meaningful challenges and is more philosophically productive.
College: Faculty of Humanities and Social Sciences
Funders: Swansea University
Issue: 3
Start Page: 215
End Page: 247

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