Methodology in jurisprudence

Legal Theory

Volumn 10, Issue 3, 2004, Pages 117-156

  Dickson, Julie ^a  

^a SOMERVILLE COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 31144473725     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325204040200     Document Type: Article

References (137)

1. H.L.A. HART, THE CONCEPT OF LAW (1st ed., 1961; 2nd ed. with Postscript, Penelope A. Bulloch and Joseph Raz, eds., 1994). All page references to this work are given according to the pagination in the 2nd edition.
2. HART, THE CONCEPT OF LAW note 1, at 1.
3. Recent interest in methodology in legal theory also owes much to Ronald Dworkin's work and especially to the discussions of methodology that feature in his explanation of the nature and role of constructive interpretation in DWORKIN, LAW'S EMPIRE (1986).
4. HART, Recent interest in methodology in legal theory also owes much to Ronald Dworkin's work and especially to the discussions of methodology that feature in his explanation of the nature and role of constructive interpretation in DWORKIN note 1, at 239-241.
5. HART, Of course, while Hart's claim that his account attempts to be general in this sense seems uncontroversial, his success in his self-proclaimed task and indeed the possibility of success in principle in that task are much more contentious. note 1, at 240. The internal quotation is from DWORKIN, Of course, while Hart's claim that his account attempts to be general in this sense seems uncontroversial, his success in his self-proclaimed task and indeed the possibility of success in principle in that task are much more contentious. note 3, at 102.
6. See P. Soper, Dworkin's Domain, 100 HARV. L. REV., 1166 (1987), esp. 1180.
7. J. Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 1-37 (J.L. Coleman, ed., 2001), at 26.
8. N. Stavropoulos, Interpretivist Theories of Law, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY, available at http://plato.stanford.edu/entries/law-interpretivist/ (2003), esp. sects. 1 and 2.
9. HART, Interpretivist Theories of Law note 1, at 240.
10. See, e.g., S.R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION (A. Marmor, ed., 1995), at 100: “the most satisfactory jurisprudential theories turn out not to be purely descriptive and value-free, as Hart claimed.”
11. HART, Interpretation and Methodology in Legal Theory, note 1, at 242-244.
12. HART, HART note 1, at 244. This is discussed further in Section II.
13. DWORKIN, HART note 3, chap. 4.
14. HART, HART note 3 note 1, at 248-250. These issues are discussed further in Section III.
15. HART, HART note 1, at 244-248. For the semantic-sting argument, see DWORKIN, HART note 3, chaps. 1 and 2.
16. HART, The argument is intended by Dworkin to apply both to propositions of law and to the concept of law. note 1, at 246. This issue is addressed in Section V.
17. H.L.A. Hart, Comment, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.L.A. HART (R. Gavison, ed., 1987), at 39.
18. J.L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY (2001), chaps. 11 and 12.
19. A. MARMOR, POSITIVE LAW AND OBJECTIVE VALUES 153-159 (2001).
20. W. WALUCHOW, INCLUSIVE LEGAL POSITIVISM 19-30 (1994).
21. J. DICKSON, EVALUATION AND LEGAL THEORY (2001). It should be noted that although these theorists share a common position to the extent that they all believe that successful legal theory must be evaluative but need not involve the legal theorist in moral or political evaluation and justification of law, there are important differences between their respective views. Unfortunately, these cannot be discussed in any detail here.
22. See J. FINNIS, NATURAL LAW AND NATURAL RIGHTS 17 (1980).
23. FINNIS, NATURAL LAW AND NATURAL RIGHTS note 24, at 12.
24. HART, NATURAL LAW AND NATURAL RIGHTS note 1, passim, but see esp. 55-61, 88-91, 105-110, and the Postscript, 242-244.
25. HART, HART note 1, at 203.
26. For Finnis's account of human well-being and the role of law in securing it, see FINNIS, HART note 24, esp. 3, and chaps. III-VI, IX, and XII.
27. DICKSON, For Finnis's account of human well-being and the role of law in securing it note 23, chaps. 2 and 3.
28. I note this point in EVALUATION AND LEGAL THEORY, see DICKSON, For Finnis's account of human well-being and the role of law in securing it note 23, at 3, 35, and 35 note 9.
29. DICKSON, I note this point in EVALUATION AND LEGAL THEORY note 23, at 32-39.
30. DICKSON, I note this point in EVALUATION AND LEGAL THEORY note 23, at 64, and, more generally, chaps. 2, 3, 6, and 7. My views on the above issues cannot be fully explained or defended here. See further DICKSON, I note this point in EVALUATION AND LEGAL THEORY note 23.
31. DICKSON, My views on the above issues cannot be fully explained or defended here. note 23, at 135.
32. In EVALUATION AND LEGAL THEORY, I attempt to explain the methodological commitments of legal theory that aspires to give a general account of the nature of law in all legal systems.
33. WALUCHOW, EVALUATION AND LEGAL THEORY note 22, at 19-30.
34. L. Green, The Political Content of Legal Theory, 17 PHIL. SOC. SCI., 1-20 (1987), at 15. This article offers a thoughtful analysis of different possible types of legal theory and claims that an evaluative but not morally evaluative approach to legal theory is a tenable position.
35. WALUCHOW, The Political Content of Legal Theory note 22, at 22.
36. See note 30, above.
37. See e.g., S.R. Perry, note 30 note 11, at 97; Perry, Hart's Methodological Positivism 4 LEGAL THEORY 427 (1998), reprinted in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed. 2001), at 311; Perry, Holmes v. Hart: The Bad Man in Legal Theory, in “THE PATH OF LAW” AND ITS INFLUENCE (S. Burton, ed., 2000), at 156.
38. Perry, Hart's Methodological Positivism, note 30 note 11 note 39.
39. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 321.
40. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 314.
41. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, secs. IV-I.
42. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 326.
43. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, secs. IV and V.
44. See, e.g., Liam Murphy, The Political Question of the Concept of Law, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed., 2001), at 371, note 10, and 378; Michael Moore, Hart's Concluding Scientific Postscript 4 LEGAL THEORY 301-327 (1998), reprinted in M. Moore, EDUCATING ONESELF IN PUBLIC (2000), at 79; Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 AM. J. JURIS. 17-51 (2003).
45. Perry, Hart's Methodological Positivism, The Political Question of the Concept of Law note 39, at 349.
46. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 327.
47. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 337 (emphasis in original).
48. Perry, Hart's Methodological Positivism, Hart's Methodological Positivism note 39, at 339.
49. Hart, Hart's Methodological Positivism note 19, at 39.
50. Andrei Marmor also argues that such a dichotomy is spurious in MARMOR, Hart note 21, at 153-159, esp. 158.
51. B. Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997), at 285.See also B. Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, inHART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed., 2001), at 355; Leiter, Naturalism and Naturalized Jurisprudence, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY (B. Bix, ed., 1998), at 79; Leiter, Legal Realism and Legal Positivism Reconsidered 111 ETHICS (2001), at 278; Leiter, Beyond the Hart/Dworkin Debate, Andrei Marmor also argues that such a dichotomy is spurious in MARMOR note 46.
52. Leiter, Rethinking Legal Realism, Rethinking Legal Realism: Toward a Naturalized Jurisprudence note 53, at 286.
53. Leiter's views are much more subtle than I can express in this brief summary. For a detailed taxonomy of different types of naturalism and their potential roles in legal theory, see B. Leiter, Naturalism in Legal Philosophy, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, available at http://plato.stanford.edu/entries/lawphil-naturalism/ (2002).
54. See Leiter, Beyond the Hart/Dworkin Debate, Leiter's views are much more subtle than I can express in this brief summary. note 46, sec. III; see also B. Leiter, Objectivity, Morality and Adjudication, in OBJECTIVITY IN LAW AND MORALS 66 (B. Leiter, ed., 2001).
55. Leiter, Beyond the Hart/Dworkin Debate, Objectivity, Morality and Adjudication note 46, sec. II, 40-43.
56. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 40.
57. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 43.
58. DICKSON, Beyond the Hart/Dworkin Debate note 23, at 32-33, and, more generally, chap. 2. See also the discussion of indirectly evaluative legal theory earlier in this section.
59. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 23 note 46, at 42.
60. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 40. See also DICKSON, Beyond the Hart/Dworkin Debate note 23, at 41-44.
61. Leiter, Beyond the Hart/Dworkin Debate note 46, at 42. The internal quotation is from J. Raz, Authority, Law and Morality, in J. RAZ, ETHICS IN THE PUBLIC DOMAIN (1994), at 237.
62. Leiter, Beyond the Hart/Dworkin Debate, Authority, Law and Morality note 46, at 43 (emphasis in original).
63. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 43. The internal quotation is from DICKSON, Beyond the Hart/Dworkin Debate note 23, at 9.
64. DICKSON, Beyond the Hart/Dworkin Debate note 23, at 3, 35, esp. 35 note 9.
65. See Perry, Beyond the Hart/Dworkin Debate note 23 note 11.
66. DICKSON, Beyond the Hart/Dworkin Debate note 23 note note 23, at 32. Jules Coleman also notes the unfortunate connotations of Hart's use of the term in COLEMAN, Beyond the Hart/Dworkin Debate note 23 note note 20, chap. 12.
67. See DICKSON, Jules Coleman also notes the unfortunate connotations of Hart's use of the term in COLEMAN note 23, at 37 and 38-49.
68. DICKSON, Jules Coleman also notes the unfortunate connotations of Hart's use of the term in COLEMAN note 23, at 43.
69. Leiter, Beyond the Hart/Dworkin Debate, Jules Coleman also notes the unfortunate connotations of Hart's use of the term in COLEMAN note 23 note 46, at 43.
70. See, again, Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 43.
71. DICKSON, Beyond the Hart/Dworkin Debate note 23 at 43.
72. DICKSON, Beyond the Hart/Dworkin Debate note 23, esp. at 60-64 and 134-137.
73. DICKSON, Beyond the Hart/Dworkin Debate note 23, passim, but see esp. 35, 37, 43-44.
74. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 42.
75. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 42.
76. Leiter, Beyond the Hart/Dworkin Debate, Beyond the Hart/Dworkin Debate note 46, at 43 (emphasis in original).
77. HART, Beyond the Hart/Dworkin Debate note 1, at 244.
78. HART, HART note 1, at 243.
79. HART, HART note 19, at 39.
80. HART, my remarks on this issue at the close of Sections II.A and II.B above. note 1, at 248-249.
81. DWORKIN, HART note 3, at 93.
82. DICKSON, HART note 3 note 23, chap. 6.
83. DWORKIN, HART note 3 note 23 note 3, at 93.
84. For example, see J. Raz, Postema on Law's Autonomy and Public Practical Reasons: a critical comment, 4 LEGAL THEORY 1 (1998), esp. 2-4.
85. See, e.g., DWORKIN, Postema on Law's Autonomy and Public Practical Reasons: a critical comment note 3, at 190: “A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state”; see also his reinterpretation of legal positivism as “conventionalism” in DWORKIN, Postema on Law's Autonomy and Public Practical Reasons: a critical comment note 3, chap. 4; and his cursory dismissal of the alternative task of legal theory postulated by the critical legal studies movement in DWORKIN, Postema on Law's Autonomy and Public Practical Reasons: a critical comment note 3, at 271-274.
86. COLEMAN, “A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state”; note 20, chap. 12, esp. at 183-186.
87. See Stavropoulos, “A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state”; note 20 note 9, sec. 1.
88. It is Stavropoulos's view in Interpretivism (unpublished manuscript, Oxford 2004), part I, that legal positivists take the starting point for legal theoretical inquiry to focus on the questions: In virtue of what are laws part of a legal system and from whom (or from which institution) do such laws emanate? and that so doing already loads the dice in favor of the positivist understanding of law as systems of rules emanating from sources of a particular kind.
89. This formulation is taken from Stavropoulos, Interpretivist Theories of Law, It is Stavropoulos's view in Interpretivism note 9, sec. 1.
90. Stavropoulos, Interpretivist Theories of Law, This formulation is taken from Stavropoulos note 9, sec. 4.
91. On this point, see Stavropoulos, Interpretivist Theories of Law, Interpretivist Theories of Law note 9, secs. 3, 4, and 7.
92. DWORKIN, Interpretivist Theories of Law note 3, at 101-108.
93. Stavropoulos, Interpretivist Theories of Law, Interpretivist Theories of Law note 9, secs. 3, 4, and 7, and Stavropoulos, Interpretivism, Interpretivist Theories of Law note 91, sec. I.
94. Stavropoulos, Interpretivism, Interpretivist Theories of Law note 91, sec. I.
95. Murphy, Stavropoulos note 46, at 371.
96. In DICKSON Murphy note 23, chap. 5, I discuss Frederick Schauer's version of the position, which I term a “beneficial moral consequences argument.” Schauer's argument can be found in F. Schauer, Positivism as Pariah, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM (R.P. George, ed., 1996); and Schauer, Positivism through Thick and Thin, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY (B. Bix. ed., 1998). Neil MacCormick is also a proponent of this kind of view; see MacCormick, A Moralistic Case for A-Moralistic Law 20 VAL. U.L. REV. 1-41 (1985).
97. Murphy, A Moralistic Case for A-Moralistic Law note 46, at 372 and 376.
98. Murphy, Murphy note 46, at 372, 382-383, and 389.
99. Murphy, Murphy note 46, at 383.
100. On the difference between hard and soft (or inclusive) positivism, see L. Green, Legal Positivism, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY, available at http://plato.stanford. edu/entries/legal-positivism/. On different interpretations of the social thesis, see J. RAZ, THE AUTHORITY OF LAW (1979), chap. 3.
101. RAZ, Legal Positivism, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY note 103, chap. 3.
102. Murphy, Legal Positivism, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY note 103 note 46, at 391.
103. Murphy, Murphy note 46, at 391. The internal quotation marks are Murphy's and do not signal a quotation from any other work.
104. Murphy, The internal quotation marks are Murphy's and do not signal a quotation from any other work. note 46, at 371. Hart makes this claim in THE CONCEPT OF LAW; see HART, The internal quotation marks are Murphy's and do not signal a quotation from any other work. note 1, at 240.
105. HART, Hart makes this claim in THE CONCEPT OF LAW; note 1, at 207-212. Hart's concern with this question arose in the context of the Hart-Fuller debate, itself a response to postwar German courts’ attempts to deal with the way in which law was used to immoral ends during the Nazi regime.
106. Murphy, Hart's concern with this question arose in the context of the Hart-Fuller debate, itself a response to postwar German courts’ attempts to deal with the way in which law was used to immoral ends during the Nazi regime. note 46, at 372.
107. P. Soper, Choosing a Legal Theory on Moral Grounds, in PHILOSOPHY AND LAW 32 (J. Coleman and E.F. Paul, eds., 1987).
108. In ascribing to Dworkin a theory about the nature of law, I am following Stavropoulos's interpretation of Dworkin's position in Stavropoulos, Interpretivist Theories of Law, Choosing a Legal Theory on Moral Grounds note 9, secs. 1 and 2.
109. For further consideration of Dworkin's stance on this issue, see DICKSON, ascribing to Dworkin a theory about the nature of law note 23, chap. 5.
110. For versions of this objection, see P. Soper, Legal Theory and the Claim of Authority, 18 PHIL. & PUB. AFF. 214 (1989); P. Soper, Choosing a Legal Theory on Moral Grounds, For further consideration of Dworkin's stance on this issue note 110; W. WALUCHOW, For further consideration of Dworkin's stance on this issue note 22, at 86-98. I also press this objection against Frederick Schauer in DICKSON, For further consideration of Dworkin's stance on this issue note 23, chap. 5.
111. Murphy, For versions of this objection note 46, at 389, note 70.
112. HART, For versions of this objection note 46 note 1, at 209.
113. HART, For versions of this objection note 46 note 1 note 1, at 116.
114. See MacCormick, HART note 99, and cf. D. Lyons, Moral Aspects of Legal Theory, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE(Marshall Cohen, ed., 1984); P. Soper, Choosing a Legal Theory on Moral Grounds, HART note 110.
115. HART, The argument is intended to apply both to propositions of law and to the concept of law. note 1, at 246.
116. T.A.O. Endicott, Herbert Hart and the Semantic Sting, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed. 2001), at 41.
117. In N. Stavropoulos, Hart's Semantics, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed. 2001), at 59, but see esp. sec. B; and J. Raz, Two Views of the Nature of the Theory of Law: a Partial Comparison, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (J.L. Coleman, ed. 2001), esp. 12.
118. In stating that Raz believesHart's approach to legal theory to be “stung” by the semanticsting argument, I mean no more than that he takes the argument to be on target. As is mentioned later in this section, Raz does not believe that the argument is successful against criterial explanations of the concept of law because in his view it is false that, as the semanticsting argument claims, such explanations cannot account adequately for disagreement about law.
119. Raz, stating that Raz believesHart's approach to legal theory to be “stung” by the semanticsting argument note 121, at 7. See also, e.g., J. Raz, The Problem about the Nature of Law, in RAZ, ETHICS IN THE PUBLIC DOMAIN (1994), at 195, sec. I.
120. See, e.g., DWORKIN, The Problem about the Nature of Law note 3, at 31, 36, 39; HART, The Problem about the Nature of Law note 1, at 245-246.
121. Stavropoulos, The Problem about the Nature of Law note 3 note 121, at 73-75.
122. Stavropoulos, Stavropoulos note 121, at 74-75. On this point, see also Raz, Stavropoulos note 121, at 16-18.
123. Stavropoulos, Stavropoulos note 121, at 73-79.
124. Raz, Stavropoulos note 121, at 25-27.
125. Raz, Stavropoulos note 121 note 121, at 26.
126. N. Stavropoulos, Interpretivism Stavropoulos note 121 note 91, part II.
127. DWORKIN, Interpretivism Stavropoulos note 121 note 91 note 3, chaps. 6 and 7.
128. For more on these points, see Stavropoulos, Interpretivism Stavropoulos note 121 note 91 note 91, part II. See also Stavropoulos, Interpretivism Stavropoulos note 121 note 91 note 121, at 81-85. This more recent work builds on Stavropoulos's attempts to argue that the concept of law is deep in the sense outlined above by drawing an analogy from the nature of natural kind concepts in N. Stavropoulos, OBJECTIVITY IN LAW (1996).
129. Raz, OBJECTIVITY IN LAW note 121, at 14.
130. Raz, OBJECTIVITY IN LAW note 121, secs. IV and V. These arguments cannot be discussed here.
131. DWORKIN, These arguments cannot be discussed here. note 3, at 44.
132. DWORKIN, These arguments cannot be discussed here. note 3, at 39-46.
133. See J.L. Coleman and O. Simchen, Law, 9 LEGAL THEORY 1-41 (2003).
134. In the article, the authors address a variety of issues that are relevant to the question: What is the meaning of “law”? and to the relation between that question and questions such as What is law? What is a law? and What is the law? in order to explore the relation between semantic theories and jurisprudence. At the outset of this article, they state explicitly that they are concerned with “'law’ as it pertains to systems of governance of human conduct” and not “'law’ as it pertains to regularities in nature”; Coleman and Simchen, Law, 9 LEGAL THEORY note 137, at 1, note 1.
135. See H. Putnam, The Meaning of “Meaning,” in MIND, LANGUAGE AND REALITY: PHILOSOPHICAL PAPERS 215-271 (Vol. 2, 1975); S. Kripke, NAMING AND NECESSITY (1980).
136. Coleman and Simchen, The Meaning of “Meaning,” note 137, at 19.
137. Coleman and Simchen, The Meaning of “Meaning,” note 137, at 21-28.