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 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” discretionthe 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.
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… [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 vegitarian 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. 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. , 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. rinciples 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. fficials 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 Recognitionbeyond 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 lawmore 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, Razians 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 disputethe dispute about whether there are constraints on the content of the Rule of Recognition as positivists conceive itis 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 rulesare 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 exerice 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 “intrepretation,” 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. an 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 th
