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Methodology in jurisprudence

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Chapter
The chapter discusses the study of legal scholarship in connection with the “Anglo-American vs. Continental” divide in jurisprudence. There is a remarkable difference between that which Anglo-American legal philosophers generally regard as their subject matter (namely, law and the related notions of morality, authority, and coercion) and that which prominent Continental writers have emphasized as one of the main topics for jurisprudential discussion: not law itself, but the study of law, or legal scholarship. Continental writers have been interested in legal scholarship as it is characteristically produced by law teachers. Some phrases that may be used to describe this type of scholarship are “standard legal scholarship”, “doctrinal legal scholarship”, “legal dogmatics”, and “legal science in a narrow a sense”. The chapter explains why Anglo-American theorists should keep their minds open to the idea that jurisprudence may take the doctrinal study of law as its subject matter.
Chapter
This chapter provides an overview of issues of methodology for jurisprudence. It focuses on common methodological approaches and recurrent issues in the construction of theories about the nature of law and theories of particular doctrinal areas within law. For a long time, jurisprudential discussions of the nature of law were reflections by thoughtful lawyers who had limited knowledge of philosophy. The chapter discusses Theories of doctrinal areas – for example, theories of contract law, tort law and property law – are common, issues of methodology seem less and are certainly not widely agreed upon. The descriptive claims sometimes include express or implied historical claims that legal doctrines have developed the way they have because there are forces that push legal rules toward greater efficiency. Richard Craswell argues that autonomy‐based theories of contract law must fail because one could not derive detailed doctrinal rules from general abstract concepts like autonomy or corrective justice.
Chapter
This chapter outlines a vindication of analytic jurisprudence from the standpoint of its meta‐philosophy of law and methodology. It provides a reconstruction of the basic investigation instructions that characterize the analytic approach to legal philosophizing. The chapter offers a tentative account of the disciplinary statute of analytic jurisprudence, distinguishing an expository and a normative variety thereof. It provides a bird‐eye survey of some of the main tools, the mastery of which fares as a necessary condition for fruitful analytic enquiries about the law. The chapter outlines a variety of analytic conceptual analyses as a response to some recent skepticism. It explains a blow in favor of analytic legal philosophy against a variety of truly “philosophical”, and hence more robust and interesting, jurisprudence, by comparing an instance of essentialist coping with the “concept of law” issue with the analytic approach, and bringing to the fore why the latter should be regarded as preferable.
Chapter
The purpose of this essay is to shed some light on general and descriptive legal theories—as proposed by H.L.A. Hart. To achieve such a goal, we will highlight some of the hurdles that these theories face by: (i) trying to identify and explain the necessary features of a practice that is considered to be absolutely contingent; (ii) proposing a general theory that explains only our concept of law; (iii) developing a descriptive or non-evaluative theory that does not describe empirical facts but instead uses evaluative judgments; (iv) describing a normative practice; etc. Finally, this essay concentrates on the debate over the criteria that determine which theory or when a theory of law is better than another in order to determine if general and descriptive legal theories depend on a normative thesis to get started.
Chapter
Legal positivism is one of the fundamental theories of jurisprudence studied in law and related fields around the world. This volume addresses how legal positivism is perceived and makes the case for why it is relevant for contemporary legal theory. The Cambridge Companion to Legal Positivism offers thirty-three chapters from leading scholars that provide a comprehensive commentary on the fundamental ideas of legal positivism, its history and major theorists, its connection to normativity and values, its current development and influence, as well as on the criticisms moved against it.
Chapter
This essay considers how Justice Hercules, the personification of Ronald Dworkin’s anti-positivist, interpretative theory of law, might assess the judicial reasoning in Bancoult (No 2). If, as Hercules contends, legal reasoning is a subset of moral reasoning, rooted in the legal and constitutional traditions of the United Kingdom, then I suggest that he may have reason to favour the majority judgments. The underlying moral scheme of these judgments arguably captures the historical settlement between the Crown and the courts in relation to prerogative powers. Whether or not that conclusion is correct, an interpretative reading of the judgments places the judicial disagreements in Bancoult (No 2) in a fresh light. It answers many of the positivist-inspired objections to the majority reasoning. And it reveals the differences between the judges to be, not an uncompromising ‘clash of legal cultures’ between executive authority and individual liberty, but a common attempt by the judges to contribute to what Kyritsis calls a ‘joint project of governing’: a collaborative effort on the part of each branch of government to fashion, through law, a shared vision of justice and institutional responsibility. That shared vision may fall short of what judges, and we, think justice ideally requires; but I contend that we can legitimately expect no more of legality and adjudication.
Article
Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often-repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor fit for a priori and a posteriori knowledge. I distinguish between universal application and universal truth, showing the former is sound while the latter is not. I expose the implications that follow from the initial selection of the central case of law, demonstrating that this choice must be justified, and I reveal two ways analytical jurisprudents shield their theories of law from refutation. This analysis raises significant doubts about the claim by analytical jurisprudents that they are identifying necessary, universal truths about the nature of law.
Article
In this paper, I argue that dialogue between legal philosophers and social scientists can be mutually beneficial. Nicola Lacey offers a vision of jurisprudence that supposes as much. I start by setting out my interpretation of her view. I then defend its potential, which she takes for granted, from the challenges posed by, first, an apparent friend—Brian Leiter—and, second, obvious adversaries—Joseph Raz and others. My response proposes an alternative to their conceptions of legal philosophy, one that is consistent with my understanding of the approach to jurisprudence that Lacey recommends.
Article
Questions concerning the aims and aspirations, criteria of success and even proper delineation of the subject matter of theories of law have given rise to some of the most intractable and contentious debates in contemporary legal philosophy. In this article, I outline my vision of the remit and character of legal philosophy, with particular emphasis on the methodological approach with which I am most concerned in my own work, and which I refer to here as ‘indirectly evaluative legal philosophy’ (IELP). I do so partly in response to some vehement criticisms of, and, in my view, significant mischaracterisations of, IELP and cognate approaches to theorising about law, which feature in some recent jurisprudential debates. My position supports a pluralistic methodological outlook which emphasises disciplinary and sub-disciplinary complementarity as an alternative to the febrile adversarialism sometimes afflicting our discipline. For, in my view, ours is a broad church, and all theoretical accounts able to illuminate and help us understand any aspect of law’s variegated and complex character are (to invoke a Scottish saying) welcome in the main body o’ the kirk.
Article
Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many examples from actual legal systems of legal norms that do not correspond to Kramer’s distinction. I conclude the essay by suggesting that Kramer’s argument exemplifies a prevalent problem in contemporary legal philosophy, in which much work is often based on simplistic models of law and uses them to develop ‘conceptual’ arguments for what closer attention to the facts shows are empirical questions. As a result many current jurisprudential debates are not helpful for understanding legal phenomena. Recognizing this point is important for reorienting legal philosophy towards other questions which would be more helpful for illuminating its subject-matter.
Chapter
Someone interested in analytical jurisprudence is bound to find self-characterisations of the discipline both intriguing and frustrating. They are intriguing since they offer an attempt at articulating the methods and purposes of a complex enterprise with a long and rich history. They are frustrating since they often appear as brief preliminaries or short concluding remarks which leave unanswered as many questions as they answer. Perhaps two of the best known statements of the task of analytical jurisprudence are made by H. L. A. Hart and Joseph Raz. In the Preface to his most famous work, The Concept of Law, Hart said that his book might be characterised as an ‘essay in descriptive sociology’,1 and in the concluding section of a now famous article, Raz wrote that it ‘is a major task of legal theory to advance our understanding of society by helping us understand how people understand themselves.’2 Fortunately, in recent years reflection on the methods and purposes of analytical jurisprudence has grown from isolated statements into sustained self-reflection, as there is an emerging and sophisticated literature focused squarely on the methodology of legal theory itself.3 The range of existing views, and the insights they draw from recent work in the social sciences, epistemology, and philosophy of language, are far too broad to treat properly in one short essay, so I propose to concentrate on what I think is a critical issue, which is not yet settled, in the development and understanding of analytical jurisprudence.
Chapter
Psychology, the study of the mind, was until late in the nineteenth century considered part of philosophy. An important catalyst in it gaining independence was when researchers in the field began adopting the experimental methods of the natural sciences. Fairly quickly, a gulf was created between the psychologists, who increasingly turned to ‘external’ means of enquiry, and the philosophers who continued to rely on introspection.1 These methods soon led to opposed substantive paradigms to the explanation of human nature: in psychology, behaviourism was the leading theory of the day; in philosophy it was theories that emphasised ‘understanding’, the examination of the workings of human reason as understood from ‘within’.
Article
Joseph Raz employs a methodology according to which we can learn truths about the nature of law by examining our concept of law. This article is devoted to interpreting and critiquing this idea, which I call the ‘concept–nature nexus’. I propose three interpretations of the concept–nature nexus that attempt to make sense of it, and expose the flaws in each. The first employs immodest conceptual analysis and is problematic for that reason. The second I call the ‘spotlight view’, and I argue that it makes sense of the concept–nature nexus only by defining the thing in question in a stipulative way that undermines the enterprise. The third relies on the idea that our concepts make the law what it is; I argue that this could make our concepts relevant to understanding law’s nature, but would involve prioritising the views of the legal officials with the power to make law what it is, which conflicts with Raz’s approach. I conclude that, in the absence of some further account of the concept–nature nexus, we should abandon it. In closing, I briefly explore methodological possibilities that require only a concept–concept or a nature–nature nexus, but suggest that these face their own problems.
Chapter
It is well known that over the last two or three decades the idea of a general jurisprudence as a purely descriptive enterprise aiming at elucidating the nature of law through conceptual analysis has been challenged from different fronts. So different, in fact, that it is distracting to characterize the current discussions as opposing proponents of a “descriptive jurisprudence”, on the one hand, against those that hold that jurisprudence has to be “normative”, on the other. In the context of the discussion about the methodology of jurisprudence, both “descriptive jurisprudence” and “normative jurisprudence” turn out to be crude and potentially misleading labels which mistakenly suggest that there is a single divide between two clearly defined and internally homogeneous positions (which is not the case) that are at any rate antagonistic (which, depending on the way these labels are understood, need not be the case).
Chapter
In this paper, the author advocates the possibility of a jurisprudential methodology that describes legal practice without making reference to moral standards. According to his analysis, such description is morally neutral and thus “pure”. After rejecting the reduction of philosophy to lexicography, the author draws upon Julie Dickson’s analysis of three distinct theses concerning moral interpretation: the “moral-evaluation” thesis, the “moral-justification” thesis and the “beneficial-moral-consequences” thesis. He examines the first of these theses critically and concludes that a description of a practice ought only to meet certain meta-theoretical standards such as clarity, consistency, coherence and comprehensiveness. While recogning that some of these values could be accepted by moralistic philosophers, he argues that a pure theorist should be concerned with them alone.
Book
In a departure from the mainstream methodology of a positivist-oriented jurisprudence, Collective Rights provides the first legal-theoretical treatment of this area. It advances a normative-moral standpoint of 'value collectivism' which goes against the traditional political philosophy of liberalism and the dominant ideas of liberal multiculturalism. Moreover, it places a theoretical account of collective rights within the larger debate between proponents of different rights theories. By exploring why 'collective rights' should be differentiated from similar legal concepts, the relationship between collective and individual rights and why groups should be recognised as the third distinctive type of right-holders, it presents the topic as connected to the larger philosophical debate about international law of human rights, most notably to the problem of universality of rights.
Article
This chapter attempts to move towards an understanding of what would be required for an adequate theoretical account of legal systems in the EU, of what might motivate such an account, and of why such an account matters. The discussion is structured as follows. Section 2 outlines some factors motivating theories of legal systems, before noting some contemporary doubts about understanding a supra-national polity such as the EU in terms of the concept of a legal system. Section 3 identifies and begins to confront some important challenges to an adequate theory of legal systems in the EU context, which are prompted by the distinctive character of EU law and its relations with other bodies of law. The discussion seeks to reveal why the concept of a legal system is important in understanding the contemporary EU, and why a legal systems analysis is well-motivated in that context, before identifying and considering some of those challenges. The concluding section reviews the importance of an adequate theory of legal systems, and considers next steps towards such a theory in the EU and other nonstate contexts. In particular, it concludes by rendering explicit a distinction between two different senses of "legal system"-or, to speak more precisely, between two different kinds of criteria which play a role in determining the existence, identity, limits, and character of legal systems-which is implicit in much of the following discussion, and which will prove vitally important in future work on this topic.
Article
This book brings together the fruits of different traditions in legal philosophy and draws on them to develop a systematic thesis on the concept of law. It examines the traditions of Jürgen Habermas's critical theory and H.L.A. Hart's analytic jurisprudence to illustrate that the key to a fruitful dialogue and comprehensive understanding, is to appreciate that the concept of law is not state-centred and must reflect relationships to other legal systems.
Article
The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his reinterpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. He has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers. © Brian Leiter, 2007, except where indicated. All rights reserved.
Article
The rise in both number and importance of various forms of intra-, inter-, supra- and trans-national legal phenomena presents distinctive challenges for legal philosophers seeking to explain and evaluate such phenomena. This article focuses on one facet of those challenges, namely their relevance for the methodology, or the philosophy, of transnational legal theory. Must we devise new legal philosophical methodologies in order successfully to explain and evaluate transnational legal phenomena? Or do we merely need to apply, and perhaps somewhat adapt, existing methodological approaches successfully deployed in general legal philosophy, to the particular case of transnational law? This article takes the approach of identifying and exploring some dangers to be overcome or avoided, and some desiderata that we should strive to attain, if our theories of law are to be sufficiently attuned to, and appropriately illuminating regarding, the domain of transnational law.
Book
This book presents the theory of the validity of legal norms, aimed at the practice of law, in particular the jurisdiction of the constitutional courts. The postpositivist concept of the validity of statutory law, grounded on a critical analysis of the basic theories of legal validity elaborated up to now, is introduced. In the first part of the book a contemporary German nonpositivist conception of law developed by Ralf Dreier and Robert Alexy is analysed in order to answer the question whether the juristic concept of legal validity should include moral standards or criteria. In the second part, a postpositivist concept of legal validity and an innovative model of validity discourse, based on the juristic presumption of the validity of legal norms, are proposed. The book is a work on analytical legal theory, written from a postpositivist, detached point of view. © Springer-Verlag Berlin Heidelberg 2013. All rights are reserved.
Article
In conceptualising law, Hart, like most Anglo-American legal theorists, took the municipal legal system as his starting point. My thesis is that a state-based concept of law cannot adequately explain the diversity of interacting and conflicting normative orders in today's global arena. In its place, I propose an original re-conceptualisation of law as justice-oriented discourse across overlapping social fields. I first explain why it is fallacious to assume that the state should be the starting point for theoretical construction. Next, I use Hart's theory to demonstrate that a state-based theory cannot accommodate normative diversity, conflict and interaction. Finally, I explore various alternative theories, and suggest that law as 'justice-oriented discourse' best rises to the challenge of general jurisprudence in today's world. I conclude that our concepts of law must always remain sensitive to the emergence of new legal phenomena, and thus the task of the legal theorist is never complete.
Article
For the study of human affairs, there is a strategic question that directs inquiry: why? Why did persons act the way they did? What were their reasons for so acting? When one seeks to study human affairs of a time and place, one puts the question “why?” to the persons of that time and place and seeks to understand their reasons for acting, as they conceive them. But when one seeks to study human affairs generally, one puts the question “why?” to oneself and interrogates what truly good reasons there are for acting. Law earns a place in the study of human affairs only if there are truly good reasons to favor it and, if there are, those reasons will identify the central case of law, which will be united with the law of different times and places by a network of similarities and differences. The argument suggests that there is an order of priority in the questions one asks in order to develop a general theory of law: ask “why choose law?” before and in order to answer “what is law?”
Article
Modern international law has an inseparable, yet uneasy connection to the analytical tradition in jurisprudence, yet the two have not been easy bedfellows. International lawyers have struggled to find a convincing account of the legality of the object of their study, largely retreating into pragmatism, whilst legal theorists have marginalised the study of international law as a result. In this article, however, I will consider recent hopes for a re-engagement between the two disciplines, brought about by a growing dissatisfaction with the disciplinary scope and coherence of both fields. In particular, I draw on recent work by the international lawyer Patrick Capps, challenging post-Hartian conceptual theory and instead defending a more purposive, evaluative account of international law. Whilst I am sympathetic to this aim, I will show why Capps' aprioristic account of law as aimed at the protection of human dignity results in an account of legal practice which both distorts reality and, in any event, ends up subordinating the international legal order again as a deviant exception to a more perfect domestic paradigm.
Book
Exploring the relationship between natural law theory and the philosophy of law, Bebhinn Donnelly proposes a new approach to natural law theory - one which addresses some of the tradition's shortcomings and advances further its approach to Hume's dichotomy. Key features: • Provides a clear definition of 'nature' in this context. • Contrasts the work of Hume and Kant regarding the 'is/ought' issue. • Examines the approach in traditional natural law. • Presents a full discussion of Finnis and the departure from traditional natural law. • Proposes a new, natural law approach to normativity, drawing on the strengths of traditional natural law theory. • Illustrates how natural law may provide a normative base for law. A Natural Law Approach to Normativity presents an original perspective on natural law theory and will be of interest to academics in philosophy of law, moral/political philosophy, natural law theorists, and students of jurisprudence internationally.
Article
This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law, rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression “necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (a) explain the essential properties of that which the concept of law refers to, which exists independently from any concept of law; (b) explain the essential properties of law given our concept of law. After trying to dissolve the ambiguity of Raz’s argument, I conclude that based on his methodological commitments the only possible task for a legal philosopher would be conceptual analysis, understood as the task of explaining our concept of law.
Article
Full-text available
: Ideal interpretation is understanding a text in the best possible way. It is usually used when the text has a canonical status, such as the Bible or the U.S. Constitution. We argue that Zhu Xi’s view about interpreting the Four Books and Ronald Dworkin’s view about constitutional interpretation are examples of ideal interpretation and that their basic principles are similar. Each holds, roughly, that their target text contains moral truth; that the author’s mind requires the mediation of learning; that the purpose of interpretation is not only to lead the reader to the moral truth but to become a better person; that all propositions are about the same moral truth or about political justice; that the interpretation ultimately must come from oneself, purged of prejudices; and that the only correct interpretation is one that captures the original meaning.
Article
In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish.
Article
The purpose of this paper is to address some of the main issues of contemporary jurisprudential methodology by considering the contribution of Jules Coleman to this subject. After a description of Coleman's methodological approach and a clarification of its philosophical background, the paper focuses on some related problems, such as the relation between linguistic meaning and conceptual content, the nature of legal concepts, the different aspects of the normativity of content, and the revisability of conceptual truths.
Article
Despite some appearances to the contrary, a popular view in jurisprudence is that there is a limited domain which either constitutes the field of enquiry of law or at least delineates the arena from which a particular field of enquiry ought to be selected. This article argues that law is comprised of a number of fields of enquiry that may be and are selected subjectively. It is claimed that theories of law may be freed from the perceived need to provide authoritative justification for their field of enquiry, if the role of subjectivity is acknowledged appropriately.
Article
This essay forms a contribution to the forthcoming second edition of the Blackwell Companion to Philosophy of Law and Legal Theory. It surveys the recent literature on methodology within jurisprudence, and considers the different roles that the invocation of methodology may perform. Dworkin's methodological stance is contrasted and compared with that of Finnis, observing that both proceed beyond an interpretive methodology to one that is constructively interpretive. In linking this to individual discernment of a purpose or point to the law that relies on descriptive work, the normative/descriptive dichotomy appears simplistic, as Finnis has acknowledged. Dickson's attempt to forge a Razian third way between normative and descriptive methodology is explored through her exchange with Leiter. This leaves uncertainties over what a purely descriptive approach would amount to, but also some confusion over the nature of an "indirectly evaluative" approach. In particular, it is suggested that this collapses into a directly evaluative approach from an individual theoretical perspective - relying on the theorist's discernment of purpose or point to the law, which amounts to a common element of theory building rather than a distinctive methodology. Leiter's own naturalistic methodology is examined within a broader discussion of conceptual analysis: taking in the Quinean position favoured by Leiter and the traditional philosophical position found within mainstream jurisprudence; noting Bix's observation on how the latter position cannot be fully accommodated within the approach to conceptual analysis favoured by Raz; and referring to a richer notion of conceptual analysis advocated by Halpin elsewhere. The promotion of a concept of law that is expected to convey the essential character of law is regarded as begging a number of questions. Attempts to transfer the methodology debate to an issue over semantics are considered, but criticized for the unhelpful abstractness of the discussion that ensues. The normative/descriptive divide is then examined further. If dependent at a trivial level on metatheoretical precepts, it fails to get established because all the differences are on the descriptive side: what makes a description more effective. If based on different understandings of a hermeneutic approach (or, more loosely, of what provides the purpose or point to the law), this becomes unstable in the face of the possibilities of raising either a normative or descriptive inquiry on descriptive or normative matters. The suggestion is made that the opening for normative theory is created by the possibility of contestable theoretical inquiry over argumentative normative material; and it is noted that the hard descriptivists, Raz and Leiter, preclude these conditions from their inquiries. In conclusion, the role of methodology as an arbiter of sound theory is rejected; the value of methodological discussion is endorsed as a means of encouraging reflection on working methods, which might raise the scientific credentials of legal theory; and the status of a methodology for legal theory is subordinated to a thorough familiarity with the experiential base of the law.
Article
The Constitutional State provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism - legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions - such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.
Article
This essay rethinks the history and understanding of the debate between legal positivism and natural law. It does so by distinguishing between classical legal positivism, represented by the work of Thomas Hobbes and Jeremy Bentham, and contemporary legal positivism, the one familiar from self-styled positivists works in the last fifty years. I argue that the difference between the two is that classical legal positivism sought to provide a theory of law within a broader account of nature (including human nature), whereas what is characteristic of contemporary legal positivism is its rejection of this approach. This distinction is valuable for understanding the historical path of jurisprudence as the approach of the classical legal positivists is similar to the one found in the work of many natural lawyers, both classical and contemporary. What separates classical legal positivists from the natural lawyers is thus not - contrary to claims by contemporary legal positivists - that the classical legal positivist were the first to argue that "legal validity" does not depend on the moral soundness of a legal norm. Rather, they disagreed on the correct account of nature and human nature. Nonetheless, both classical legal positivism and natural law are similar in seeking to place a theory of law within a broader theoretical perspective. The difference is significant both for understanding the views of Bentham or Hobbes (neither of which was particularly interested in identifying tests of "validity") but also for suggesting that the future of legal theory lies in returning to the views of the classical legal positivists and abandoning the approach that has dominated jurisprudence, and legal positivism in particular, since Hart's Concept of Law.
Article
In the last three decades or so a prominent view among legal philosophers has been that while legal theory is evaluative because it requires making judgments of importance, it can remain morally neutral. This view, which I call the ‘orthodox view’, was first articulated by Joseph Raz and has since been supported by many other prominent legal philosophers. In this essay I examine it, and argue that it is indefensible. I begin by examining the terms ‘description’ and ‘evaluation’, and show that they are ambiguous in a way that most current discussion does not realize. I then rely on this analysis to develop several arguments against the orthodox view. I argue that defenders of the orthodox view have considered only one such argument, and that even with regard to this one their response is unsuccessful.
Article
To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.
Hart's Methodological Positivism, supra note 39, secs. IV–I
  • Perry
Perry, Hart's Methodological Positivism, supra note 39, secs. IV–I.
The Political Question of the Concept of Law at 371, note 10, and 378
  • See
  • J L Liam Murphy Hart 's Postscript: Essays On The Postscript To The Concept Of Law
  • Coleman
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).
s Methodological Positivism, supra note 39, at 349. http://journals.cambridge.org Downloaded: 09 Dec 2014 IP address: 128.239.99.140 Methodology in Jurisprudence 52. Andrei Marmor also argues that such a dichotomy is spurious in MARMOR, supra note 21
  • Perry
  • Hart
Perry, Hart's Methodological Positivism, supra note 39, at 349. http://journals.cambridge.org Downloaded: 09 Dec 2014 IP address: 128.239.99.140 Methodology in Jurisprudence 52. Andrei Marmor also argues that such a dichotomy is spurious in MARMOR, supra note 21, at 153–159, esp. 158.
Rethinking Legal Realism, supra note 53
  • Leiter
Leiter, Rethinking Legal Realism, supra note 53, at 286.
Dworkin Debate, supra note 46, at 43 (emphasis in original)
  • Leiter
  • Beyond
  • Hart
Leiter, Beyond the Hart/Dworkin Debate, supra note 46, at 43 (emphasis in original).
supra note 9, secs. 3, 4, and 7, and Stavropoulos, Interpretivism, supra note 91, sec. I
  • Interpretivist Theories Stavropoulos
  • Law
Stavropoulos, Interpretivist Theories of Law, supra note 9, secs. 3, 4, and 7, and Stavropoulos, Interpretivism, supra note 91, sec. I. http://journals.cambridge.org Downloaded: 09 Dec 2014 IP address: 128.239.99.140 Methodology in Jurisprudence 97. Stavropoulos, Interpretivism, supra note 91, sec. I.
Neil MacCormick is also a proponent of this kind of view
  • Schauer
  • Positivism
  • Thick
  • Thin
  • Analyzing
  • Law
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).
Interpretivism supra note 91, part II
  • N Stavropoulos
N. Stavropoulos, Interpretivism supra note 91, part II.