Frederick Schauer, University of Virginia School of Law, is publishing Law as a Malleable Artifact in Law as an Artifact (Lukas Burazin, Kenneth Einar Himma, and Corrado Roversi, eds., Oxford University Press, 2018 Forthcoming). Here is the abstract.
Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of law perceive that project to be analytic and descriptive, but not normative. But the concept of law is itself a human creation, and what humans can create humans can also re-create. And thus there is a different project of conceptual prescription or conceptual revision, one in which the goal is to reflect on (and to prescribe, at times) on how a society ought to understand the very idea of law – what concept of law a society ought to have. This project, which under one reading may have informed both H.L.A. Hart and Lon Fuller in their 1958 debate, need not displace the analytic/descriptive project of conceptual analysis of the concept of law, but, given its provenance going back at least as far as Jeremy Bentham, nor should it be dismissed from what John Austin labeled “the province of jurisprudence.”Download the essay from SSRN at the link.