Tom Hannant (Swansea University) has posted Deadlock in Rule of Law Theory and the Potential of Internal Critique (Legal Theory) on SSRN. Here is the 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.