A defence of hart's semantics as nonambitious conceptual analysis

Legal Theory

Volumn 9, Issue 2, 2003, Pages 99-124

  Rodriguez Blanco, Veronica ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 31144439353     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000053     Document Type: Article

References (36)

1. H.L.A. Hart, THE CONCEPT OF LAW (1994).
2. Ronald Dworkin, LAW'S EMPIRE 31-46 (1986).
3. Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in HART'S POSTSCRIPTS 1-37 (Jules Coleman, ed., 2001).
4. Jules Coleman, THE PRACTICE OF PRINCIPLE 181 (2001).
5. Nicos Stavropoulos, Hart's Semantics, in HART'S POSTSCRIPTS 59-98 (Jules Coleman, ed., 2001). (hereinafter “HS “).
6. His target is Timothy Endicott's essay, Herbert Hart and the Semantic Sting, in HART'S POSTSCRIPTS 39-58 (Jules Coleman, ed., 2001), in which the author argues that Hart did not advocate either a criterial semantic theory nor any semantic theory at all, if a semantic theory is a general explanatory account of what makes an application of an expression correct.
7. Stavropoulos, HS at 98.
8. H.L.A Hart's CL begins by saying that these three concepts are interrelated and that this relationship causes perplexity. This perplexity justifies the study of the relationship of these concepts (CL at 6-8).
9. Hart, CL, at 3-4.
10. I. Kant, CRITIQUE OF PURE REASON B11, at 48-49 (Norman Kempf Smith, trans., 1992).
11. In legal theory, Brian Leiter has argued that conceptual analysis in jurisprudence is not immune from Quine's criticism. He claims, however, that analytical jurisprudence theorists have ignored the criticism of the analytic-synthetic distinction. See B. Leiter, Realism, Positivism and Conceptual Analysis, in 4 LEGAL THEORY 533-547, at 546 (1998).
12. W. Quine Two Dogmas of Empiricism, in CLARITY IS NOT ENOUGH (H.D. Lewis, ed., 1963); Saul Kripke,NAMING ANDNECESSITY (1972); Hilary Putnam,MIND, LANGUAGE ANDREALITY (1975).
13. Frank Jackson, FROM METAPHYSICS TO ETHICS 30 (1998) (hereinafter “ME “).
14. Stavropoulos, HS at 70.
15. Jackson, ME at 31.
16. Stavropoulos, HS at 70-71. In this paper, thought experiments, counterfactual situations, and possible cases are taken as being interchangeable.
17. Hart, Jhering's Heaven of Concepts and Modern Analytical Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 265-277 (1983).
18. Stavropoulos, HS at 73.
19. Hart, CL at 13.
20. Our interpretation is consistent with similar ideas advocated by authors such as Coleman. He claims that Hart's aim is not to report on usage, but to analyze the concept of law. See Coleman, CL at note 5, at 177).
21. Stavropoulos, HS at 72-73.
22. Jackson, ME at 43-44.
23. Hart, CL at 159.
24. Hart, CL at 156.
25. Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. See Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. (1997). My article, Genuine Disagreements: A Realist Reconstruction of Dworkin, 4 OXFORD JOURNAL OF LEGAL STUDIES (2001), resorts to naturalized epistemology to reconstruct Dworkin's legal theory in realist terms.
26. I have argued in Genuine Disagreements (Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. note 78) that a realist reconstruction of Dworkin's legal theory is a way of making sense of the distinction between theoretical and semantic disagreements to eschew the criticism of semantic sophisticated models such as the one advanced by Raz in Two Views of the Nature of the Theory of Law, see Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. note 4. Realism argues that ontological issues should be settled prior to semantical issues. I also argue, however, that Dworkin's reconstruction is incompatible with his ametaphysical view advocated in Truth and Objectivity: You'd Better Believe It, PHIL. & PUB. AFF 25(2)(1996).
27. See Raz, I have argued in Genuine Disagreements (Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. note 78) that a realist reconstruction of Dworkin's legal theory is a way of making sense of the distinction between theoretical and semantic disagreements to eschew the criticism of semantic sophisticated models such as the one advanced by Raz in Two Views of the Nature of the Theory of Law, see I have argued in Genuine Disagreements (Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. note 78) that a realist reconstruction of Dworkin's legal theory is a way of making sense of the distinction between theoretical and semantic disagreements to eschew the criticism of semantic sophisticated models such as the one advanced by Raz in Two Views of the Nature of the Theory of Law, see Brian Leiter uses naturalized epistemology as a methodology for jurisprudence. note 4. note 4. note 4, for a discussion of criterial semantic explanations that do not presuppose the notion of “shared criteria.”
28. David Brink, MORAL REALISM AND THE FOUNDATIONS OF ETHICS 160-161 (1989) gives a detailed formulation of the semantic-properties-test argument. It is a variation of Moore's open argument in PRINCIPLIA ETHICA. It is also well explained in Harman, THE NATURE OF MORALITY, AN INTRODUCTION TO ETHICS (1977).
29. Hart in his reply to J. Cohen in “Theory and Definition in Jurisprudence,” In: Proceedings of the Aristotelian Society, xxix (1955): 238, focuses on the importance of being neutral with respect to different theoretical views.
30. Charles Taylor in THE SOURCES OF THE SELF (Cambridge, Harvard Univ. Press, 1989), argues that the modern turn towards an inner self, which began with St. Augustine, followed by Descartes and Locke, explains the contemporary conception of art as a form of self-expression. It is arguable, therefore, that “art” is not a neutral concept but that its definition depends on the conception or theoretical framework presupposed by the theorist. Therefore the concept “art” or “morality” is the result of fragmented conceptual frameworks. Nowadays this latter radical assertion is seen as a commonplace in philosophical discussions.
31. See Quine, Charles Taylor in THE SOURCES OF THE SELF note 19.
32. See Kripke, Charles Taylor in THE SOURCES OF THE SELF note note 19.
33. Jackson, ME at 44.
34. Hart, CL at 168.
35. Hart, “Theory and Definition in Jurisprudence,” see Id., note 84 at 246.
36. Hart, CL at 218.