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The Methodology Problem in Jurisprudence

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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 Dworkinian 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. 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 Ð''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 interpretivism 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 interpretivism; 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.

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"



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