László Blutman (University of Szeged – Faculty of Law) has posted Why Does Focal Analysis Fail in Law? (Liber Amicorum János Martonyi (Festschrift für János Martonyi), (Ed. Nagy, Csongor István) HVG-ORAC, Budapest 2014, pp. 365-388) on SSRN. Here is the abstract:
Timothy Endicott suggests the introduction of a new analytical tool to help the interpretation and application of legal terms. The Aristotelian method of focal analysis has been used previously by John Finnis when describing the concept of law. If Endicott is right, then the interpretation and application of law is enriched by an effective method.
In this paper, my aim is to show that focal analysis is neither suitable for the analysis of 'law', nor for the analysis of legal terms in general. The topic can be divided into four main issues. The first is the brief summary of the familiar problem of open concepts, which in modern legal theory, notably at Hart, led to the central case approach. The second is the nature of focal analysis as was used by Aristotle at the time. The third, most extensive part, consists of the arguments showing that Finnis was wrong when he based the methodology of his theory on focal analysis. Finally, as the fourth major issue, the demonstration of why Endicott’s suggestion is untenable.