THE METHODOLOGY PROBLEM IN JURISPRUDENCE For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called “the Hart/Dworkin debate,” a debate whose starting point is Ronald Dworkin’s 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H. L. A. Hart’s 1961 book The Concept of Law. Hart’s final word on that debate is now available to us in the posthumously published 1994 “Postscript” to The Concept of Law, while Dworkin has not published anything substantially new about the debate since his book Law’s Empire in 1986. The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth.
I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me — and, I venture, many others by now — that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkin ian criticisms of Hart may now be in doubt. The point is not, I hasten to add, that there remain no challenges to legal positivism, but rather that the significant issues that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall in to two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law’s authority (“the Hart/Raz debate”); and second, the proper methodology of jurisprudence. I shall say relatively little about the Hart/Raz debate, since it is intramural, taking place against a background of some shared positivist assumptions. The methodology debate, by contrast — at least as it has been shaped by renewed appreciation of John Finnis’s seminal challenge in Natural Law and Natural Rights — is, in my view, more significant: it promises to show that there is a relevant sense in which law and morality are not separable by challenging the methodological presuppositions of legal positivists.
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If the very enterprise of understanding the concept of law requires positive moral appraisal of law, then it turns out that questions about the moral foundations of law can not be treated as conceptually severable from questions about the nature of law. Legal positivism does, to be sure, score a partial victory, as Finnis himself concedes when he notes that positivism, in either Hart’s or Raz’s version, does give an adequate account of “what any competent lawyer… would say are (or are not) intra-systemically valid laws, imposing ‘legal requirements.’ ” What it fails to do, according to Finnis, is explain the “central cases” of law, and that would be an inexcusable failing in any compelling theory of law. Methodology, then, implicates substance — that is, the correctness of any proposed substantive theory of law — and so, given the victory of Hart’s positivism in the Hart/Dworkin dialectic, it makes good sense that legal philosophers have now given renewed attention to the methodological issues: for it is here that a new vulnerability of legal positivism has been identified. In section I, I shall review the Hart/Dworkin and Hart/Raz debates; this review is elementary, and may be safely bypassed by anyone familiar with the shape of that dialectic. In section II, I turn to questions of methodology in jurisprudence.
I shall argue for five propositions in this section: first, that Dworkin’s constructive presents no pertinent challenge to legal positivism, since it is thoroughly question-begging; second, that the pertinent methodological challenge to positivism comes from Finnis, and that Dworkin himself needs Finnis-style argument to motivate; third, that positivists can respond to and (with some qualifications) defeat this methodological challenge; fourth, that positivists can also (with some qualifications) rebut Perry’s more recent version of Finnis-style arguments; and fifth, that Dickson’s attempt to stake out a position (what she calls “indirectly evaluative legal theory”) intermediate between the methodological positivism or descriptivism of Hart and Finnis’s position is a failure. Finally, in section III, I turn to a larger debate about methodology that has come to the fore in epistemology, philosophy of mind, and ethics. Here I identify some possible weaknesses of the descriptivist rebuttal to Finnis from section II — the source of the “qualifications” previously noted — and argue for a different way of framing the methodology problem in jurisprudence. I. The Hart/Dworkin Debate and the Hart/Raz Debate The Hart/Dworkin debate begins with Dworkin’s 1967 paper “The Model of Rules,” which attributes to Hart four doctrines, all of which Dworkin rejects: that law consists of “rules” (understood as legal standards that differ from what Dworkin calls “principles”); that legal rules are identified via a “rule of recognition,” that is, “by tests having to do not with their content but with their pedigree”; that where a rule does not control a case, judges have discretion; and that in those cases where judges have discretion, neither party has a pre-existing legal right to prevail.
... been made, then it is the Court’s discretion to decide whether or not his consent should ... Act 2000. Raised with this act are both legal and ethical issues. Adoption offers the greatest sense ... of individuals within the community. By this, the law will be more effective, adoption rates will increase ... the public and individuals views, revealing where the law can be seen as ineffective. Consent of unmarried ...
It is now well-known, of course, that Dworkin misrepresented Hart’s views on all but the last point. Hart does think that when judges have discretion (in Hart’s sense of discretion, not Dworkin’s — more on that in a moment), no party has a legal right to prevail. But he did not intend the talk of “rules” in The Concept of Law to exclude the possibility that in some legal systems the standards that Dworkin calls “principles” can be legally binding; he does not think there is anything about his account of a rule of recognition that prevents it from incorporating, as a matter of judicial convention, content-based tests of legal validity; and while there is a sense in which Hart thinks that when “rules” — understood capaciously, as Hart intended, to include what Dworkin calls “principles” — do not control the outcome of a case, judges have discretion, the thrust of Hart’s doctrine of discretion is not, in fact, captured by Dworkin’s distinction between “strong” and “weak” discretion. This last point warrants further comment. Dworkin distinguishes a doctrine he calls “strong” discretion-the kind of discretion a decision-maker has when he “is simply not bound by standards set by the authority in question” — from the doctrine he calls “weak” discretion, which says only that “the standards an official must apply cannot be applied mechanically but demand the use of judgment.” Weak discretion is both trivial and inescapable, Dworkin thinks, once we recognize that the law can include what he calls “principles,” that is legal standards which do not apply in an all-or-nothing fashion even when their factual predicate is satisfied, but rather have to be weighed by the judge against other principles in reaching a decision.
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Therefore, the only interesting doctrine of discretion for a positivist to defend would be the strong version, but, Dworkin argues, once we admit that principles can be law, then it’s never the case that judges are “not bound by [authoritative] standards”: it’s true they may have to exercise judgment in applying principles like “no man should profit from his own wrongdoing,” but that’s just to acknowledge that judges have weak discretion whenever principles are involved. The distinction between strong and weak discretion is Dworkin’s, not Hart’s, and it seems to obscure rather than illuminate Hart’s actual reasons for thinking judges have discretion. Hart need not maintain that in cases of discretion, judges are bound by no authoritative standards: there may, indeed, be binding standards that narrow the range of possible decisions. Yet even though authoritative standards delimit the range of possible decisions, “None the less there will be points where the existing law [whether “rules” or “principles”] fails to dictate any decision as the correct one,” such that judges must exercise “law-making powers.” Introducing principles in to the canon of authoritative legal standards does not eliminate this possibility, since principles, as much as rules, can be indeterminate insofar as the facts of particular cases fall within the penumbra of the meaning of the operative words in the principle. The rule “No vehicles in the park” may be indeterminate as applied to motor scooters, but so too is the principle “No man may profit from his own wrongdoing” when applied to the heir whose reckless conduct leads to his benefactor’s death. Reasoning by analogy, or appealing to the general purposes of particular laws, “certainly defers…
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[but] does not eliminate the moment for judicial law-making” in all cases, “since in any hard case different principles supporting competing analogies may present themselves and a judge will often have to choose between them, relying, like a conscientious legislator, on his sense of what is best and not on any already established order of priorities prescribed for him by law.” If “The Model of Rules I” is notable mainly for leading Hart to clarify his views (in ways that, arguably, should have been clear from a fair reading of the 1961 book), Dworkin’s 1972 paper “The Model of Rules II” caused Hart to change his “practice theory of rules” first articulated in the 1961 book. According to the strong version of that theory, promulgated in 1961, for any “duty” to exist in a community there must exist a “social rule”, that is, a practice of convergent behavior among individuals in that community, where the individuals accept the rule describing that behavior from an “internal point of view,” that is, they accept it as a standard justifying their own conformity with the pattern and as a basis for criticizing deviation from the pattern.
The strong version of the theory, Dworkin shows, is too strong: the vegetarian who says we have a moral duty not to eat meat is not asserting that it is the general practice of individuals not to eat meat; so, too, the American abolitionist in 1825 who asserts that it is our duty not to hold other human beings as slaves is not asserting the existence of a pattern of convergent behavior, let alone one which is accepted from an internal point of view. Thus, the practice theory of rules, Hart now says, applies only when “general conformity of a group to [the rules] is part of the reasons which its individual members have for acceptance” of the rules. Thus, Hart acknowledges that the practice theory is not “a sound explanation of morality, either individual or social.” But Hart maintains that the practice theory is “a faithful account of conventional social rules,” including “the rule of recognition, which is in effect a form of judicial customary rule existing only if it accepted and practiced in the law-identifying and law-applying operations of the courts.” To Dworkin’s charge that such an account still does not explain how such a rule can create a duty or reason for action, Hart retorts that Dworkin confuses the claim “that the participants who appeal to rules as establishing duties or providing reasons for action must believe that there are good moral grounds or justification for conforming to the rules” with the claim “that there must actually be such good grounds.” Unfortunately, Hart, even in the Postscript, encourages this confusion. The practice theory of rules, consistent with the ambitions of descriptive jurisprudence, should be taken as stating only what is true of social practices that are taken by members of a community to impose duties, rather than as stating the actual grounds of duties that arise from social practices.
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But when Hart speaks of the “general conformity of a group to” rules as “part of the reasons which its individual members have for acceptance” of the rules, he invites precisely Dworkin’s misunderstanding: he makes it sound like the fact of convergent behavior is, or needs to be, a reason for acting. But all Hart needs for his “descriptive sociology” is the far weaker claim that the existence-conditions for some (not all) talk of “duties” is merely the fact of convergent behavior conjoined with acceptance of the rule describing that behavior from an internal point of view. After his early critical papers on Hart’s positivism, Dworkin turns to the elaboration of his own theory of adjudication and law, according to which the right answer to a legal question is the one that coheres with the “best” theory of the institutional history of the legal system (i. e.
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, its statutes, precedents, constitution, etc. ).
The “best” theory, in turn, is one that both explains or fits some significant portion of that institutional history and provides the best moral justification of it. The theory was first set out in the 1975 paper “Hard Cases” (reprinted in Taking Rights Seriously) and then developed in the 1986 book Law’s Empire.
Although the theory is usually presented by Dworkin as in competition with Hart’s positivism, Dworkin, in fact, alters so many terms of the debate, that he is largely talking past Hart. As Hart puts it: “It is not obvious why there should be or indeed could be any significant conflict between enterprises so different as my own and Dworkin’s conception of legal theory.” In particular, Dworkin simply assumes that, “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.” But this assumption is obviously not shared by Hart, nor is it even clear why any theorist should share it. As Hart writes, My aim in this book was to provide a theory of what law is which is both general and descriptive. It is general in the sense that it is not tied to any particular legal system or legal culture, but seeks to given an explanatory and clarifying account of law as a complex social and political institutions with a rule-governed (and in that sense “normative”) aspect. This institution, in spite of many variations in different cultures and in different times, has taken the same general form and structure, though many misunderstandings and obscuring myths, calling for clarification, have clustered around it… My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an important preliminary to any useful moral criticism of law.
But Dworkin, by limiting his account of law only to those cases where the exercise of coercive power in accordance with law can be morally justified, has, plainly, changed the topic. Thus, Hart is surely right to say that his own enterprise is “radically different” from Dworkin’s, since the latter puts the justification of coercive power at its core, and takes a particular legal culture, the Anglo-American, as its central concern. The only possible challenge Dworkin’s theory could present to Hart’s is if the former’s particular jurisprudence of Anglo-American legal systems were deemed correct, but could not be accounted for within the framework of Hart’s general jurisprudence. In particular, the question for Hart’s positivism is whether it can make sense of the phenomenon of judges treating some principles as legally binding, not in virtue of their pedigree but simply in virtue of their content.
Hart, famously, thinks his theory can. In arguing that legal positivism can make room for the possibility of legally valid “principles” (in Dworkin’s sense), Hart made two claims: (1) that some principles are, contra Dworkin, legally valid in virtue of their pedigree (e. g. , principles of the common law like “no man shall profit from his own wrongdoing” are legally valid in virtue of having been adopted by a large number of courts for a long period of time); and (2) that there is nothing in the positivist notion of a Rule of Recognition that precludes content-based tests of legal validity — tests like, “this rule is legally valid in virtue of being a requirement of fairness” — which might account for those principles which are legally binding but lack a pedigree. It is the second of Hart’s two responses to Dworkin that is the entry point for what has become one of the most lively debates in core analytic jurisprudence in the past two decades, what I will call the Hart/Raz debate.
This debate poses deep issues about the subsidiary components of the “concept of law” that concerned Hart: for example, what concept of authority is required by the concept of law, and what it means to be guided by a rule. To see what is at stake here, we need to return to Hart’s notion of a Rule of Recognition, the secondary rule that sets out the criteria of legal validity in a legal system. The Rule of Recognition, according to Hart, is a social rule, meaning that it is constituted by a customary practice of convergent behavior among judges, where the rule describing that pattern of behavior is accepted by those officials from an internal point of view. Thus, the Rule of Recognition of a particular society is constituted by the actual practice of officials in deciding disputes about the legal validity of particular rules: do, e.
g. , officials merely appeal to facts about the pedigree of those rules, or do officials also consider the substantive merits or demerits of the rules in evaluating their legality? Hart’s position, then, is a version of “Soft Positivism,” since it holds that the only constraint on the content of a society’s Rule of Recognition comes from the facts about official practice in deciding questions about legality. Soft Positivists honor the positivist doctrine that law and morality are conceptually independent of each other by noting that it is still a conceptual possibility, on the Soft Positivist view, for there to be a Rule of Recognition, hence a legal system, in which morality is not a criterion of legal validity. That morality is a criterion of legal validity in some systems is just a contingent fact about the actual official practice in those systems, not a conceptual requirement of positivism’s account of law. Hard Positivists, led by Raz, dispute this.
Hard Positivism takes there to be an additional constraint on the content of the Rule of Recognition-beyond the fact that it is a social rule — namely, that the criteria of legal validity it sets out must consist in plain facts about the sources or pedigree of the rules in question. Hard Positivists motivate these arguments by appeal to other features deemed to be central to the concept of law. Thus, most famously, Raz argues that it is part of our concept of law that it makes an intelligible claim to authority, even if that claim is often not realized in practice. According to Raz, however, a legal system can only claim authority if it is possible to identify its directives without reference to the underlying (“dependent”) reasons for that directive. This is a “prerequisite” for authority because what distinguishes a (practical) authority in the first place is that its directives preempt consideration of the underlying reasons (including, e.
g. , moral reasons) for what we ought to do (and in so doing actually makes it more likely that we will do what we really ought to do).
But Soft Positivism makes the identification of law depend on the very reasons that authoritative directives are supposed to preempt, and thus makes it impossible in principle for law-more precisely, the Rule of Recognition — to possess authority. Raz imports in to the concept of law not only a claim to authority, but a claim to a very particular concept of authority according to which an authoritative directive performs a service for those subject to it, namely, the service of helping them comply more successfully with what “right reason” would require. Raz’s claims about authority are controversial in a number of ways, for example, in treating the hallmark of “authority” as its performing a service; in arguing that authoritative reasons must be exclusionary, i. e.
, that they preempt all consideration of the dependent reasons on which the authoritative directive is based; in supposing that all law sincerely claims authority; and in requiring that there be objectively better and worse answers to practical questions (without such answers, it would be impossible to assess whether an authority was performing the required “service”).
In some cases, Razian have compelling replies to objections to these aspects of the theory of authority, but at least some Hard Positivists have opted for demonstrating that we can get the same constraints on the Rule of Recognition with more modest conceptual claims: so, e. g. , Scott Shapiro claims that positivism is committed to the idea that law guides conduct, but that reflection on the concept of being guided by a rule shows that a Rule of Recognition that employed content-based criteria of legal validity could not possibly guide the conduct of officials. If successful, we get a Hard Positivist conclusion from what are supposed to be more minimal (and thus, less contentious) assumptions about what is part of the concept of law. While I am inclined to the view that Hard Positivism is correct — though not necessarily for the reasons noted above — I will not argue that here.
Rather, I want to call attention to two points. First, the Hart/Raz dispute-the dispute about whether there are constraints on the content of the Rule of Recognition as positivists conceive it-is both the most important on-going debate in recent analytical jurisprudence and one that has already moved beyond Dworkin: this debate will be settled on the terms put forth by Raz, Shapiro, W. J. Waluchow, Jules Coleman, and others. Second, if the Hard Positivists are right, then we are still owed some response to Dworkin’s challenge that some “principles”-those non-conclusive legal standards that Dworkin distinguished from rules-are legally binding.
Hard Positivists can, of course, acknowledge, as Hart did, that some principles are legally binding in virtue of pedigree: what are often called “principles of the common law” seem to be a case in point. As to those other non-pedigreed principles that Dworkin would have us treat as legally binding, the Hard Positivist must insist that we not be misled by judicial rhetoric in these cases: non-pedigreed principles are not legally binding, but it is all too obvious why judges should want to write their opinions as if they were. Dworkin’s theory was always an odd hybrid — “the third way” John Mackie called it, between positivism and natural law theory -asking neither the factual / descriptive question of classical positivism, nor the explicitly moral question of certain kinds of natural law theory. But if Hart is right, then Dworkin’s theory is no third way at all, but merely an exercise in particular jurisprudence: Dworkin simply described the rule of recognition for those legal systems — perhaps the American — in which there is a conventional practice among judges of deciding questions of legal validity by reference to moral criteria. Rather than disputing Hart’s legal positivism, Dworkin is, on this rendering, a case of applied positivism. And if Raz and his followers are right, then Dworkin’s theory is no third way because it is simply not an adequate theory of law at all: among other flaws, it renders unintelligible the law’s claim to authority, it has no way of discriminating between legally binding and extra-legal references to morality by officials, and it reifies judicial rhetoric about “discovering” the right answer in hard cases, while missing the lawyer’s commonplace that judges exercise discretion in hard cases.
What would remain on the table, then, are legal positivism (in whichever form emerges from the Hart/Raz debate) and any natural law theories that present a genuine challenge to positivism. Since Finnis denies, no doubt correctly, that natural lawyers are committed to affirming that morality is necessarily a criterion of legal validity, this familiar way of stating a dispute with positivism is not at issue. (From a dialectical standpoint, Dworkin’s greatest advantage was that he did did affirm that morality was necessarily a criterion of legal validity. ) Indeed, Finnis admits (as noted earlier) that positivism — understood either in Hart’s or Raz’s version — gives an adequate account of “what any competent lawyer… would say are (or are not) intra-systemically valid laws, imposing ‘legal requirements.’ ” Rather than treating this latter concession as an admission that positivism had answered successfully the question it was actually asking, Finnis, instead, lambasts positivism for failing to answer a question it was never asking, to wit, about “the authoritativeness, for an official’s or a private citizen’s conscience (ultimate rational judgment), of these alleged and imposed [legally valid] requirements” and about “their lack of authority when radically unjust.” Positivists can, of course, answer — and have answered such questions — but not in virtue of their particular positivist theory of law, but rather their theories of legitimacy and justified authority.
Finnis’s objections seem to reflect, at bottom, misunderstanding of what John Gardner has aptly called the “comprehensive normative inertness” of legal positivism: “When a philosopher of law asserts a proposition that neither endorses nor criticises what [lawyers] do, but only identifies some necessary feature of what they do, lawyers and law teachers are often frustrated.” But as Gardner says, positivism “merely states one feature that all legal guidance necessarily has, viz.
that if valid qua legal it is valid in virtue of its sources, not its merits.” There remains, however, a more important way of taking the natural law challenge to positivism, also suggested by Finnis’s work, namely, as a challenge to the methodology of descriptive jurisprudence. And it is to this issue that we now turn. II. Jurisprudential Methodology: Is Descriptive Jurisprudence Possible? These days when philosophers worry about “methodology” they usually worry about the fruitfulness of conceptual analysis and the epistemic status of the intuitions which do so much work in most branches of philosophy. Seen from this perspective, the methodology debate in jurisprudence has been idiosyncratic and narrow: those, like Perry, Postema and Stavropoulos, who have worried in recent years about the prospects for what Hart called “descriptive jurisprudence” have not taken issue with his commitment to conceptual analysis, or even to the role of intuitions in legal philosophy. Rather, they have taken issue with his assumption that the methodology of jurisprudence can be purely descriptive in character.
These critics accept that jurisprudence is conceptual and intuition-driven, but dispute what Perry usefully calls the “methodological positivism” characteristic of Hart (and, arguably, other legal positivists), namely, his view that “legal theory can… offer a normatively neutral description of a particular social phenomenon, namely law.” Now it is curious that this kind of methodology debate is found nowhere else in philosophy, not even in the domains of practical philosophy, of which Perry insists jurisprudence is properly a branch. It is an interesting question — at least sociologically, perhaps philosophically too — why jurisprudence should have been afflicted with this debate, while moral and political philosophers go about their business only bothered — if bothered at all — by the skeptics about intuitions and concepts. My tentative hypothesis is that, as with much else that is philosophically peculiar in jurisprudential debate, the fault lies with Dworkin. In Law’s Empire, Dworkin advanced the idea that law is an “interpretive concept.” To say that law is an interpretive concept is to say, among other things, that we can’t understand the concept unless we understand the value or point of law. And the point of law, according to Dworkin, is to justify the exerce of coercive power by the state.
If we accept all this, then we are, indeed, led to the conclusion that jurisprudence can not be purely descriptive: for a jurisprudential account of law must undertake a normative inquiry in to the conditions under which a normative system claiming to be “law” would, in fact, justify state coercion. I am going to refer to this, for ease of reference, as “the Normative Concept of Law,” that is, the concept of law according to which law discharges a normative task, namely, justifying state coercion. Dworkin’s position, then, is that because law is an interpretive concept it follows that the pertinent concept of law for jurisprudence is the Normative Concept described above. If there is an argument here, it must turn on the claim that law is an interpretive concept. It is not clear, however, that the claim about interpretation can bear this weight.
As Raz has commented: An interpretation of something is an explanation of its meaning. Many if not all legal philosophers think of themselves as explaining the essential features of legal practices, and explaining the relations between them and related phenomena such as other forms of social organization, other social practices, and morality… [Hart himself] was seeking to interpret the complex social institution the law is. If Hart and others did not make as extensive use of “interpretation” as Dworkin does, this is in part because fashions dictate the use of terms, and because they may well have wished to avoid being associated with theories that, in their eyes, misconstrued the nature of interpretation. Talk about “,” in short, isn’t really doing any work in Dworkin: one can interpret the concept of law without thinking that concept is equivalent to the Normative Concept. The real question is whether Dworkin’s explanation of the Normative Concept of Law is an explanation of our concept of law: calling his explanation an “interpretation” of the concept goes no distance towards establishing that.
I am inclined, alas, to Hart’s view that Dworkin has simply changed the topic: the Normative Concept is one concept of law, but it is plainly not the concept, since we all recognize (natural law theorists like Finnis included) the existence of law so thoroughly unjust that it could not possibly justify coercion (even if, with Finnis, we want to deny these are “central cases” of law).
That Dworkin has, in fact, no argument for treating the Normative Concept of Law as the concept of law may explain why recent critics of Hart’s “methodological positivism” like Perry have returned to Finnis: for Finnis, unlike Dworkin, has an argument, and in one form or other, it is the argument revived by the recent critics. Showing why Finnis is wrong goes a long way to showing why the recent methodological debate about descriptive jurisprudence should be retired. “[A] theorist,” says Finnis, “cannot give a theoretical description and analysis of social facts [including law] unless he also participates in the work of evaluation, of understanding what is really good for human persons, and what is really required by practical reasonableness,” that is, reasoning about what one ought to do. He cannot do this because “the subject-matter of the theorist’s description [namely, law] does not come neatly demarcated from other features of social life and practice.” In the case of social phenomena like law, which are constituted by human actions and practices, “the actions, practices, etc. , can be fully understood only by understanding their point, that is to say their objective, their value, their significance or importance, as conceived by the people who performed them, engaged in them, etc.” The latter observation, however, states no dispute with Hart’s descriptive jurisprudence, since Hart too accepts the hermeneutic constraint on accounts of social phenomena: to wit, that an adequate description of a human social practice must attend to how the participants in the practice understand its meaning and purpose.
One can, of course, describe the value a practice has for its participants without engaging in the practice of evaluation. As Hart put it: “Description may still be description, even when what is described is an evaluation.” So if there is a real quarrel with descriptive jurisprudence here it must pertain to the fact that law “does not come neatly demarcated from other features of social life and practice.” As Finnis puts it: “there is no escaping the theoretical requirement that a judgment of significance and importance must be made if theory is to be more than a vast rubbish heap of miscellaneous facts described in a multitude of incommensurable terminologies.” Even the proponents of a purely descriptive jurisprudence, like Hart and Raz, believe that the theory is concerned only with the important or significant features of law. But, asks Finnis, “from what viewpoint, and relative to what concerns, are importance and significance to be assessed?” The viewpoint from which these matters are assessed, according to Finnis, is a “practical” one, that is, one “with a view to decision and action.” Hart and Raz — arbitrarily, Finnis suggests — confine their attention to law as understood from the “internal point of view” — the point of view of the citizen who accepts the law as providing reasons for acting — while “firmly ref us[ing] to differentiate further” between “central… [and] peripheral cases of the internal…
point of view itself.” Against this arbitrary refusal, Finnis says that: [T]he evaluations of the theorist himself are an indispensable and decisive component in the selection or formation of any concepts for use in description of such aspects of human affairs as law or legal order. For the theorist cannot identify the central case of that practical viewpoint [the internal point of view] which he uses to identify the central case of his subject-matter, unless he decides what the requirements of practical reasonableness really are, in relation to this whole aspect of human affairs and concerns. In relation to law, the most important things for the theorist to know and describe are the things which, in the judgment of the theorist, make it important from a practical viewpoint to have law. The non-sequitur at the core of this passage, in fact, mirrors the conflations in the work of Perry, Postema and Stavropoulos. In Finnis’s formulation, the non-sequitur occurs in the slide from what I will refer to as the “Banal Truth” that “evaluations… are an indispensable and decisive component in the selection or formation of any concepts for use in description of such aspects of human affairs as law or legal order” to the claim that the evaluation in question involves “decide[ing] what the requirements of practical reasonableness really are.” I take the Banal Truth to be the uncontested legacy of post-Kuhn ian and post-Quinean philosophy of science: there is no such thing as a presupposition less inquiry, of facts that are “theory-free,” and so on.
But that goes no distance at all to establishing that the presuppositions of the descriptive enterprise require judgments about what Finnis calls “practical reasonableness” or that the viewpoint from which “importance” and “significance” are assessed is the “practical viewpoint.” Let us distinguish between epistemic values and moral values. Epistemic values specify (what we hope are) the truth-conducive desiderata we aspire to in theory construction and theory choice: evidentiary adequacy (“saving the phenomena”), simplicity, minimum mutilation of well-established theoretical frameworks and methods (methodological conservatism), explanatory, and so forth. Honor those values-even the explicitly pragmatic ones like simplicity-and, we hope, we will acquire knowledge. Moral values are those values that bear on the questions of practical reasonableness, e. g. , questions about how one ought to live, what one’s obligations are to others, what kind of political institutions one ought to support and obey, and so forth.
The question, then, is whether the judgments of “significance” and “importance” that Finnis rightly insists are indispensable in theory-construction must make reference to moral values in addition to epistemic values? Descriptive jurisprudence accepts the Banal Truth in answering this question “no.” Descriptive jurisprudence says that epistemic norms, alone, suffice to demarcate legal phenomena for purposes of jurisprudential inquiry. Consider an analogy. If I want to provide an analysis of the concept of a “city,” whatever analysis I proffer had better explain the familiar, shared features of New York and London and Tokyo and Paris. Any analysis of the concept of “city” that doesn’t fit these paradigm instances (what Finnis would call “central cases”) is not an analysis of our concept of “city.” But now we might imagine the following dialogue between the character I’ll call “the Natural City Theorist” (NCT) and our proponent of descriptive (conceptual) analysis, “the Descriptivist,” concerning the concept of a city: NCT: How do you know that it is the features of these places-New York, Paris, London, etc. — that have to figure in an analysis of the concept of city? Why, in other words, are these the “central cases” for purposes of your analysis? Descriptivist: Well, because they are paradigm instances of our concept: someone who didn’t think New York or Paris were paradigm instances of cities wouldn’t be using the concept of “city” the way we do.
NCT: Yes, but what gives you the right to claim that they are using the concept of “city” wrongly? How, without thinking about what a city really is from a practical viewpoint, can you rule out the non-conforming usages of the concept? Descriptivist: Actually, I don’t have to say the person who denies that New York and Paris are “cities” is using the concept wrongly; I’m not interested in regulating linguistic or conceptual practice, just in understanding what we call “cities” are actually like. If you ” re right that there are lots of non-conforming usages of the concept of “city,” then perhaps I’ll have to rename my concept “city .” But it doesn’t matter what you call it: the point is that places like New York and Paris and London have things in common, things that are, in fact, usually picked out with the concept of a “city.” I want to understand what those places have in common, and, at the end of the day, I don’t care what you call them. In point of fact, of course, they ” re usually called cities. NCT: But isn’t that then just an appeal to statistically normal usage? Descriptivist: Yes, and that’s fine for settling the quibble about terminology. The main point is that there are real places in the world-what I’ve been calling “cities”-that have certain important, common features that make it interesting and fruitful to group them together and ask what it is they share. NCT: Ah-hah! So now you admit that you ” ve made a value judgment about what is “important” and “fruitful,” so your project is not really a descriptive one after all.
Descriptivist: It’s as descriptive as chemistry or cognitive psychology: none of us can deny the Banal Truth that our subject-matter has to be demarcated for empirical inquiry to be possible. Cognitive psychologists have to individuate the mind, and decide that neural reactions in the brain are pertinent bits of descriptive data to attend to when a subject has received sensory stimuli, while the growth of facial hair is not. We cut the joints of the world with an eye to epistemic values like s implicitly, , coherence with other theories, and so forth. To that extent, no project is “purely” descriptive.
NCT: But you need more than epistemic norms, you need moral and political norms to delineate your subject-matter. How, after all, can you say what a “city” is-as distinct from a house, or a farm, or a suburb, or a hamlet — without attending to the essentially practical question of how one ought to live? Descriptivist: I just don’t see this. To even ask your practical question — ought one to be a city-dweller, or a suburbanite, or a farm inhabitant? — we already need to understand the difference between city and suburb and farm. Your practical questions are, themselves, parasitic on a demarcation made based on purely epistemic criteria, criteria like: (i) statistically normal usage: most people call London and Paris “cities” rather than “suburbs”; (ii) evidentiary adequacy: experience reveals that there are forms of human communal life, across cultures, that differ in striking ways; the “cities,” for example, all have high-density populations, elaborate systems of public transport, higher levels of asocial behavior, and so on; and (iii) explanatory: it would be illuminating if we could have a unified account of the phenomena noted in (ii), rather than simply viewing them as discreet, brute facts about different countries. These epistemic considerations quite naturally lead us to demarcate “cities” from “farms” and “suburbs” (and so on) as a topic for investigation.
How humans ought to live is simply a different question. NCT: Yet surely you must admit that the fact that some human beings have organized their communal life in to cities, while others remain on farms and in suburbs, reflects the practical interests and practical judgments made by these people? Descriptivist: Of course, there is nothing in my project that requires me to deny that the way the social world is cut up-in to cities and suburbs, in to schools and hospitals, in to legal systems and systems of informal social norms, etc. -reflects the practical concerns of people. I’m not making any claims about the etiology of these features of the social world; whatever the etiology of particular phenomena like “cities” or “legal systems”, my goal is to give a satisfactory descriptive account of what we find. Now does the Descriptivist fare any worse when we switch from the concept of “city” to the concept of “law”? It is not apparent why he should. So, for example, while it is surely worthwhile to ask whether certain cases of legal systems are just and worthy of obedience — just as it is worthwhile to ask whether life in “cities” is desire able and conducive to human flourishing — that is simply a different question from the descriptive one of what “law” and “legal systems” — or “cities” — are like.
And to even ask the practical question it seems we have to have in place a conceptual demarcation of law from other forms of normative control. And so on. Perry, while often echoing Finnis, takes a slightly different argumentative tact in more recent work. Perry now describes legal philosophy as being centrally concerned with “the problem of the of law.” Indeed, he goes so far as to claim that explaining “the (apparent) reason-giving ness of law” — i. e. , law’s — is the “central task” of legal philosophy.
But what is the evidence for this strong claim? Perry says the problem of the of law involves questions like “How is the concept of legal obligation to be analysed?” and “What does it mean to claim authority over someone?” These questions appear to call for purely descriptive answers: an analysis of legal obligation, for example, or an explanation of the claim to authority. It is trivially true, of course, that the concepts in question are normative ones, but what is called for, in Perry’s own formulation, is a descriptive explication of those normative concepts. Now curiously, Perry himself acknowledges that Hart doesn’t even have an analysis of legal obligation — indeed, Hart has nothing to say about the of law in the main text of The Concept of Law, beyond a refutation of the Austin ian account. As Perry correctly notes, Hart’s social rule theory of obligation “is simply a descriptive statement that (a certain proportion of) members of the relevant group regard themselves and all others in the group as obligated to conform to some general practice. This statement uses rather than analyzes the concept of obligation.” Hart’s descriptive account, to be sure, distinguishes two kinds of social practices, those where convergent behavior is merely habitual and those where it reflects the fact that agents take themselves to have obligations to engage in that behavior. The latter, according to Hart, is a central social phenomenon wherever there is law, but the Scandinavian Realists — Hart’s real target in this context — can not, because of their “external” perspective, demarcate it from mere habitual behavior and so cannot explain the social phenomenon of law.
So Hart’s “descriptive statement” suffices for his actual theoretical purposes. The only way for Perry to convert this “descriptive statement” in to a theoretical claim that requires positive moral appraisal of law is for Perry to repeatedly mischaracterize it. Thus, while Perry’s initial characterization of the “problem of the of law” is, as above, quite clearly descriptive (an “analysis” of legal obligation or the “claim” of authority), he soon begins describing the “problem” as follows: “does law in fact obligate us in the way that it purports to do?” As to this question, he says, quite plausibly, that it “arises within the philosophy of practical reason, and it would seem inevitable that its resolution would require normative and probably moral argument.” Yet this is quite plainly a very different question, and it is equally plainly a question the answer to which is not required to give an analysis of the concept of law according to Hart. So Perry’s problem is simply not Hart’s problem. Almost all of Perry’s argument, alas, appears to trade on a sotto voce slippage between descriptive questions about and the truly normative questions, as though the two were the same.
Perry fares no better with Raz, the positivist who does indeed have an account of what it is to “claim authority over someone.” Here is the crucial passage in Perry: Raz’s argument for the service conception of authority is moral in nature. If it is right, then the anarchist thesis that the state could never have the moral authority it claims is wrong. The theory sets out moral conditions of legitimacy which Raz holds are implicit in the concept of law and which must be met if the law is to give rise to obligations that people would not otherwise have. Raz’s theory of law is thus also a political philosophy that is in direct competition with, among others, Dworkin’s integrity theory (itself both a theory of law and a political philosophy).
Every sentence in this paragraph is, as best I can tell, either flatly wrong or dangerously ambiguous. First, Raz does not argue for the service conception of authority on the grounds that it is morally attractive or has morally good consequences: he argues that it is our concept.
That is a descriptive claim. Second, Raz’s account of authority is perfectly compatible with “the anarchist thesis that the state [more precisely, the laws of the state] could never have the moral authority it claims,” because Raz’s thesis is only that all laws (sincerely) claim moral authority, not that they actually have it. The anarchist thesis, in Razian terms, is simply the claim that law always fails to satisfy the Normal Justification Thesis. Nothing in Raz’s theory of authority or of law precludes it. Third, Raz’s theory does hold that law must meet something like “moral conditions of legitimacy” if it is to give rise to obligations, but qua theory of law, it holds only that everything that is law claims authority, and thus claims to give rise to obligations, but not that it actually does so. The latter claims are not part of a “political philosophy,” but rather a descriptive analysis of the concept of law and of authority.
It is certainly true that if one holds that descriptive jurisprudence must answer the questions of substantive moral and political philosophy — what ought one to do, what laws ought one to obey — then it cannot be purely descriptive. But no one ever denied that. The difficultly with Perry’s argument is that he wants to treat these latter questions as if they were the questions that descriptive jurisprudent’s were actually asking. But this is just to misread the targets of the criticism. I want to conclude by considering one final challenge, of sorts, to the claim that descriptive jurisprudence is possible. Recently, Julie Dickson, in the posture of explicating Raz’s view, has argued that there is a position intermediate between descriptive jurisprudence and the view of Dworkin and Finnis that jurisprudence requires moral evaluation of law: this is what Dickson calls “indirectly evaluative legal theory.” I will argue that, in fact, this kind of legal theory is just an instance of descriptive jurisprudence and its application of what Dickson calls “meta-theoretical” (what I called epistemic) values.
There is, in short, no conceptual space between descriptive jurisprudence (once the Banal Truth is acknowledged) and the normative conception of jurisprudence. Dickson motivates her presentation of indirectly evaluative legal theory via a quotation from Raz, and so it is worth examining this passage with some care. Raz says: Legal theory contributes… to an improved understanding of society. But it would be wrong to conclude…
that one judges the success of an analysis of the concept of law by its theoretical sociological fruitfulness. To do so is to miss the point that, unlike concepts like “mass” or “electron,”the law” is a concept used by people to understand themselves. We are not free to pick on any fruitful concepts. It is a major task of legal theory to advance our understanding of society by helping us to understand how people understand themselves. Let us distinguish two claims about concepts that are implicit in this passage. Let us call a “Natural Kind Concept” a concept whose extension is fixed solely by whatever well-confirmed scientific (lawful) generalizations employ the concept.
Let us call a “Hermeneutic Concept” any concept which satisfies two conditions: (i) it plays a hermeneutic role, that is, it figures in how humans make themselves and their practices intelligible to themselves, and (ii) its extension is fixed by this hermeneutic role. Notice, to start, that lots of Natural Kind Concepts do play hermeneutic roles: “gold” in bourgeois societies, for example, or “water” in many religious baptismal rituals, or “wolverine” in Michigan (the “mascot” of the University of Michigan).
Yet none of this makes these concepts Hermeneutic Concepts, because we do not take their extension to be fixed by the hermeneutic roles they do or might play: wolverine is a biological category, unaffected by its role in how Michigan residents and football fans make sense of themselves and their social world. Now Raz’s central claim, in the passage quoted above, is that “the law” is a Hermeneutic Concept. This claim is clearly endorsed by every legal philosopher of the last hundred years, with the exception of the Scandinavian Realists.
Hart, famously, has an argument (noted above) why we must treat “law” as a Hermeneutic Concept: namely, that we won’t be able to distinguish its extension from that of habitual social practices if we fail to treat it as such. Let us suppose that is correct (let us suppose, in other words, that failure to mark that distinction would result in some explanatory failure of a theory of law).
With this terminology in place, we can restate Raz’s argument, in the passage quoted earlier, as follows. According to Raz, social-scientific fruitfulness is not a criterion for the adequacy of an analysis of the concept of law because the concept of law is a Hermeneutic Concept, whereas scientifically fruitful theories all concern Natural Kind Concepts. I realize, of course, that this restatement goes quite a bit beyond what Raz explicitly says in the quoted passage, but it is the only way I can see to make sense of it: for, on the face of things, it is completely my serious why one should think a fruitful scientific theory whose target is Hermeneutic Concepts should employ criteria of fruitfulness appropriate only to Natural Kind Concepts — i. e.
, to concepts whose extension is unaffected by their hermeneutic role — unless, of course, one thought that scientific theories only had Natural Kind Concepts in their purview. In the heyday of logical positivism, this would seem a reasonable assumption: of course, one would say, the only scientifically respectable concepts are those whose extensions are essentially the same as (or reducible to) the extensions of concepts in the physical sciences. But logical positivism, in this regard, is happily defunct, and has been for many decades. And thus, insofar as a scientific theory has as its target a Hermeneutic Concept, it is unclear why what Dickson calls meta-theoretic values (what I called epistemic values) will not suffice for a theory of law. Insofar as a descriptive theory of law takes as its target a Hermeneutic Concept, necessarily a comprehensive, simple, and theory — i. e.
, a descriptively adequate one — must a count for how the concept is “used by people to understand themselves.” Dickson’s own central example — that of an agnostic’s account of Roman Catholic ritual — illustrates clearly that we need nothing more than epistemic values to account for Hermeneutic Concepts. Here is what Dickson says: Imagine an agnostic observer who wants to understand a Roman Catholic mass which he attends. In order to be successful in his task, this observer will obviously have to engage in evaluative work, for in order to understand the mass, he will have to understand, amongst other things, what it is for mass to be celebrated well. This will require an evaluation of which things it is important for various of the involved parties to do correctly and an understanding of what those actions mean for them. The observer will, therefore, inevitably be making judgments about which are the most important or significant features of the mass, and which ideals a well-celebrated mass should live up to.
However, the observer’s judgment that a particular feature of the mass is important or significant will not be supported by his own direct evaluations regarding whether that feature or the ideals to which it is alleged to contribute are good or bad, right or wrong — he is agnostic as regards these matters and is not in the business of making any such evaluations. Rather, the observer’s indirectly evaluative judgments of the importance of a given feature of the mass will be supported or justified by the role which that feature plays in the self-understandings of those participants in the mass. Those self-understandings will include the attribution of spiritual and moral value in respect of certain aspects of the mass, and those attributions of value indicate the things which matter to participants in the mass and which are thus important to explain. However… the agnostic observer need not share those values, nor himself take a stance on whether the participants are correct in their ascriptions of spiritual and moral value, in order to understand which features of the mass are important and significant for those participating in it. In this example, we treat the Roman Catholic “mass” as a Hermeneutic Concept, whose extension is fixed by how those who participate in the mass understand it.
Epistemic values — most obviously “saving the phenomena” — require that our theory of the mass attend to the features of the mass that are “significant” and “important.” This requires, in turn, that we attend to how those who participate in the mass understand its significance and importance; it does not, by Dickson’s own admission, require that we attend to how the theorist (the agnostic) evaluates those practices. Thus, the resulting theory is “indirectly evaluative” only in the trivial sense that to account for the extension of a Hermeneutic Concept — one that figures in the evaluations of agents who employ the concept — we must attend (descriptively) to their evaluative practices. This is not simply a terminological quibble, with Dickson calling this “indirectly evaluative theory” while I am calling it a descriptive theory of a Hermeneutic Concept. For it is Dickson’s central thesis that there is a conceptual space between the view of theorists like Finnis and Dworkin that “in order to understand law adequately, a legal theorist must morally evaluate law” (“the Moral Evaluation Thesis”) and the Hart-style descriptivist who holds that an adequate understanding of law does not require a moral evaluation of law. The difference here is marked by the posture of the theorist — the one who offers the “adequate understanding” — and what role evaluation plays in his undertaking.
Everyone, on this accounting, acknowledges that the theorist must employ epistemic values in demarcating the object of theoretical inquiry. The only question is whether the theorist must also engage in moral evaluation in order to have a theory of the object in question. Dickson, like every descriptivist, denies that. So her “indirectly evaluative legal theory” does not stand in any competition with the Moral Evaluation Thesis, since it agrees wholly with the descriptivist that the answer to the last question is negative. The confusion results from the fact that Dickson, like Raz, thinks epistemic values in scientific theory-construction can’t accommodate the distinctive features of Hermeneutic Concepts. But that assumption is motivated by bad philosophy of science — which is to say, it is unmotivated — and it is thus insufficient to motivate a kind of legal theory distinct from both descriptive jurisprudence and the Moral Evaluation Thesis.
III. Philosophical Methodology: The Naturalistic Turn Legal philosophers have, in my view, been having the wrong debate about jurisprudential methodology: legal philosophy is, indeed, descriptive, and trivially so, in exactly the way most other branches of practical philosophy have an important descriptive component. The real worry about jurisprudence isn’t that it is descriptive — of course it is (or tries to be) — but rather that it relies on two central argumentative devices — analyses of concepts and appeals to intuition — that are epistemologically bankrupt. Start with concepts. On the dominant view, from Plato through Carnap to Peacock e ‘every analysis of a concept is inextricably bound to a collection of purported.’ But post-Quine, we know (don’t we? ) that the analytic-synthetic distinction does not mark an epistemic difference but a socio-historical one.
Philosophers long thought that some truths were necessary while others were contingent; in the twentieth-century, under the influence of logical positivism, this was taken to be the distinction between those statements that were ‘true in virtue of meaning’ (hence necessarily true) and those that were ‘true in virtue of fact’ (hence only contingently true).
The former ‘analytic’ truths were the proper domain of philosophy; the latter ‘synthetic’ truths the proper domain of empirical science. Quine argued that the distinction could not be sustained: all statements are, in principle, answerable to experience, and, conversely, all statements can be maintained in the face of recalcitrant experience as long as we adjust other parts of our picture of the world. So there is no real distinction between claims that are ‘true in virtue of meaning’ and ‘true in virtue of facts,’ or between ‘necessary’ and ‘contingent’ truths; there is simply the socio-historical fact that, at any given point in the history of inquiry, there are some statements we are unlikely to give up in the face of recalcitrant empirical evidence, and others that we are quite willing to give up when empirical evidence conflicts. Without a domain of analytic truths — truths that are a priori and hold in virtue of meaning — it becomes unclear what special domain of expertise for philosophical reflection remains. If all claims are, in principle, revisable in light of empirical evidence, then would not all questions fall to empirical science? Philosophy would be out of business, except perhaps as the abstract, reflective branch of empirical science.
And if analytic statements are gone, then so too is conceptual analysis: since any claim of conceptual analysis is vulnerable to the demands of a posterior i (i. e. , empirical) theory construction, philosophy must proceed in tandem with empirical science, not as the arbiter of its claims, but as a reflective attempt at synoptic clarity about the state of empirical knowledge. Even the leading contemporary champion of conceptual analysis, Frank Jackson, appears, on closer inspection, to acknowledge the import of the Quinean critique and thus to seriously deflate the role of conceptual analysis in philosophy. According to Jackson, conceptual analysis proceeds ‘by appeal to what seems to us most obvious and central about [the concept in question]… as revealed by our intuitions about possible cases.’ ‘[T]he general coincidence in intuitive responses,” to possible cases, he says, “reveals something about the folk theory of [the concept in question]’ (p.
32), where the “folk theory” is just the “ordinary” understanding of the concept, partly explicit, partly implicit in ordinary ways of talking and thinking. But note that Jackson specifically chastises conceptual analysis in its ‘immodest role,’ namely when ‘it gives intuitions… too big a place in determining what the world is like’ (pp. 43-44): ‘There is nothing sacrosanct about folk theory,” he notes. “It has served us well but not so well that it would be irrational to make changes to it in the light of reflection on exactly what it involves, and in the light of one or another empirical discovery about us and our world’ (p. 44).
The question is, having conceded this much, what remains? Conceptual analysis, as Jackson conceives it, becomes hard to distinguish from banal descriptive sociology of the Gallup-poll variety. Indeed, Jackson says explicitly that he advocates, when necessary, ‘doing serious opinion polls on people’s responses to various cases’ (p. 36)! But this now seems to blur the line between conceptual analysis and lexicography: for does not lexicography aim to track statistically normal usage of words or concepts, precisely the pattern of usage a well-designed opinion poll would detect? Jackson would retort, of course, that even opinion polls have a role to play; he says: [T]he questions we ask when we do metaphysics are framed in a language, and thus we need to attend to what the users of the language mean by the words they employ to ask their questions. When bounty hunters go searching, they are searching for a person and not a handbill. But they will not get very far if they fail to attend to the representational property of the handbill on the wanted person. These properties give them their target, or, if you like, define the subject of their search.
But this makes the difference between conceptual analysis and lexicography even more obscure: do not lexicographers attend “to what the users of the language mean by the words they employ” and then write up the results? Is philosophy, on this account, just glorified lexicography? Glorified lexicography is important, to be sure, but its results are strictly ethnographic and local: one thing such a method can not deliver are timeless or necessary truths about how things are. But this is exactly what legal philosophers appear to be after (and it is what philosophers ought to be after, isn’t it? ).
On the Razian view, for example, as Dickson explains it, [A] jurisprudence is concerned with explaining the nature of law by attempting to isolate and explain those features which make law into what it is. A successful theory of law of this type is a theory which consists of propositions about the law which (1) are necessarily true, and (2) adequately explain the nature of law… I am using “the nature of law” to refer to those essential properties which a given set of phenomena must exhibit in order to be law. A jurisprudential theory that employs conceptual analysis to deliver necessary truths and illuminate essential properties would plainly involve conceptual analysis in its immodest form, and thus will find no solace from Jackson.
More seriously, such an approach depends on the assumption that Quine is fundamentally wrong about, an.