Brian Flanagan

Disagreement on law’s relationship to morality has long been driven by disagreement about our ordinary concept. Until recently, however, there had been no systematic investigation of lay intuitions. In this paper, we advance this nascent effort. Across two studies (N = 697), our findings reveal that most people consider law to be more than a matter of political circumstance alone. Contrary to the expectations of most contemporary philosophers, morality (both substantive and procedural) emerges as a key influence on judgments of legal validity: many people say that conduct prohibited by immoral statutes is not truly illegal, and that immoral conduct which was never explicitly prohibited is truly illegal. This suggests that people often treat law as a dual character concept that, like the concepts of scientist or of artist, features autonomous concrete and abstract dimensions.

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s practitioners to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future.