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Two Perspectives on Legal Theory
Published online by Cambridge University Press: 20 July 2015
Extract
This is a Critical Notice of two books: Evaluation and Legal Theory by Julie Dickson and Law as a Social Institution by Hamish Ross, both published by Hart.
- Type
- Critical Notice
- Information
- Copyright
- Copyright © Canadian Journal of Law and Jurisprudence 2003
Footnotes
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(Oxford: Hart Publishing, 2001) ISBN 1-84113-184-9 (hardback), 1-84113-081-8 (paperback), pp. xii, 148 (hereinafter ELT).
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(Oxford: Hart Publishing, 2001) ISBN 1-84113-230-6 (hardback), 1-84113-231-4 (paperback), pp. xv, 176 (hereinafter LSI).
References
1. Hart, H.L.A., The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994) at v. Google Scholar
2. See, e.g., the many essays in Coleman, Jules, ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 1991).Google Scholar
3. Others have also observed how the is/ought distinction can be highly misleading. See, e.g., Füßer, Klaus, “Farewell to Legal Positivism: The Separation Thesis Unravelling” in Robert P. George, ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996)Google Scholar and Villa, Vittorio, “Legal Theory and Value Judgements” (1997) 16 L. & Phil. 447.Google Scholar
4. See ELT at 14.
5. “The criteria of success model allows for the plausible possibility that law could possess an indefinite number of essential properties, different sub-sets of which could be identified and explained by investigation in any one of … numerous [other] subject matter areas” (ELT at 20). The other subject matter areas are: “criminology, the sociology of the judiciary, legal anthropology, methods of alternative dispute resolution, behaviourist accounts of the relation between law and other types of social norms, and even the role of artificial intelligence in legal reasoning … to say nothing of the vast array of critical legal scholarship” (ELT‘at 16).
6. See Waluchow, Wil, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994) at 20, n. 2Google Scholar.
7. See Perry, “Hart’s Methodological Positivism”, supra note 2 at 314.
8. I must confess to being puzzled by Dickson’s apparently uncritical acceptance of Perry’s highly misleading account of the aims and methodological commitments of descriptive-explanatory legal theories. Jules Coleman also appears to make a similar error; see Waluchow, Wil, (2002) 15 Can. J. L. & Juris. 125 at 130, n. 6.CrossRefGoogle Scholar
9. ELT at 57. Dickson, considers Finnis’ arguments in Natural Law and Natural Rights (Oxford: Clarendon Press, 1980 Google Scholar) as well as in seminars given by Finnis at Oxford; see ELT note 4 at 47.
10. This example helps make it clear why Dickson considers Raz’s legal theory to be an indirectly evaluative legal theory. Raz, as is well known, suggests that every legal system has the feature of claiming moral authority, and he recognizes that this feature is often (if not always) considered significant by participants within legal systems. Thus the claim to moral authority is clearly an important feature of law to explain. Yet we may, according to Raz, leave open the possibility that no actual legal system exists such that its claim to moral authority is justified. We can indirectly evaluate the claim and decide that it is an important feature of legal systems, but need not directly evaluate the claim’s actual moral status.
11. See ELT at 75-76 for Dickson’s discussion of Finnis’ “intra-systemic” sense of legal rules.
12. Dickson suggests that Finnis “does not seem to take seriously the enterprise of identifying what law’s essential properties are” even though he relies upon the idea that law has at least one essential property: a moral obligation to obey it. Dickson also considers and rejects two other possible Finnisian supports for the the moral justification thesis, namely the “unanimity/legal authority gambit” and the “point of view argument”.
13. See, e.g., Waluchow, supra note 6 at 86-98.
14. Dickson herself makes such a claim; see supra note 5.
15. Dickson constructs her sympathetic argument according to her identification of three important methodological commitments in Dworkin’s theory: (1) The common “interpretive enterprise” of judges, lawyers, thoughtful citizens, and right-thinking legal theorists entails that “for Dworkin, there is no difference in kind between the questions, ‘what is the law on a particular issue?’ and ‘what is the nature of the social institution of law?’”; (2) Dworkin’s methodology involves the “foregrounding and elaboration of interpretive argument and of understanding law as an interpretive concept”; (3) for Dworkin, the concept of law, which both identifies and is generated by constructive interpretation, ensures that “the criteria of success of a legal theory are essentially moral criteria” (ELT‘at 97-98).
16. ELT at 108, quoting Dworkin, R. from Law ‘s Empire (London: Fontana Press, 1986) at 93.Google Scholar
17. See, e.g., Hart, supra note 1 at v. In LSI at 14-15, Ross briefly examines how Hart was influenced by Peter Winch’s book The Idea of a Social Science and its Relation to Philosophy (London: Routledge & Kegan Paul, Ltd., 1958)Google Scholar, and notes that Winch’s (and thus Hart’s) sociological perspective was quite Weberian.
18. Since it is this syncretic theory which is of primary interest to philosophical legal theorists, I shall bypass Ross’ discussion of how Hart inadvertently contributed to “sociological isolationism”.
19. Hart, supra note 1 at v.
20. The essence of Ross’ complaint is that “Hart’s external point of view … as originally conceived, was not a viewpoint consciously formulated for adoption by a sociological inclined jurist” (LSI at 67), and so Hart inadvertently undermined the putatively sociological side of his theory.
21. “Hart’s failure in this respect resulted in his uncritically presenting a concept of law essentially from an insider’s point of view (to the apparent exclusion of other valid viewpoints) either: from the ‘internal’ point of view of a citizenry who, by and large, ‘accept’ the law as ex Pressed in primary rules; or from the ‘internal’ point of view of judges and other officials who ‘accept’ the law as ex Pressed in secondary rules” (LSI at 99).
22. LSI at 76, emphasis added. Ross’ characterization of analytical jurisprudence is somewhat unique, though not unreasonable; see LSI at 38.
23. “If Hart’s claim that The Concept of Law is ‘an essay in descriptive sociology’ were to have been taken seriously, should not its theoretical emphasis have inclined more markedly towards one of the primary concerns of sociology: social action?” (LSI at 78) For Ross’ description of “social action”, see LSI at 28. A theoretical focus on social action is also suggested by Hulsen, Peter, “Back to Basics: A Theory of the Emergence of Institutional Facts” in (1998) 17 L. & Phil. 271 Google Scholar. See also Groot, Muriel de and Vrielink, Mirjan Oude, “Legal Theory and Sociological Facts” in (1998) 17 L. & Phil. 251.Google Scholar
24. See LSI at 93-95 for Ross’ discussion of what it means to engage in conceptual analysis. His account stresses ordinary language philosophy, which Ross considers to be a useful legal-sociological methodology. What better way, he asks, might we “objectify the meaning of the behaviour of the observed [legal] subject” than by examining the ordinary language those subjects use? (LSI at 76). If Ross is correct, then perhaps philosophy of language can be of use to sociological legal theorists. Raz argues that it is not so useful for philosophical jurisprudence: “there is little that philosophy of language can do to advance one’s understanding [of law]” (Raz, “Two Views on the Nature of the Theory of Law”, supra note 2 at 6). Of course, not all legal philosophers agree with Raz’s view; see, e.g., Morigiwa, Yasutomo, “The Semantic Sting in Jurisprudence: Hart’s Theories of Language and Law” in (1991) 40 Archiv für Rechts- und Sozialphilosophie 21 Google Scholar.
25. LSI at 89-95. Ross’ insistence on an explicit definition of his theoretical perspective seems less strident if we keep in mind his Weberian emphasis on causality and the need to connect norms to observable behaviors; see LSI at 96-97.
26. “The Iudexian viewpoint is intended to be seen merely as a counterpoint to other viewpoints, however. There is nothing to prevent a conception of the world as it happens to be to, for instance, a marginalised indigenous community’s world view” (LSI at 114). At this point in Ross’ project the qualification “merely” is rather startling. I can offer no explanation for it.
27. Liam Murphy also discusses Althusser’s distinction between the legal order and the legal regime; see “The Political Question of the Concept of Law”, supra note 2 at 375, 382.
28. “In contrast to Weber, Parsons virtually equated human action with effort to conform to norms” (LSI at 188).
29. E.g., H.L.A. Hart, A. Honoré, Neil MacCormick, W.N. Hohfeld; see LSI at ch. 6.
30. LSI at 162, emphasis added. Ross goes on to say: “It [law] is both a manifestation and an instrument of social power which permeates every area of human activity. From a central site of origin, legal social power percolates to the nerve end of virtually every point of social contact between one human being and another.”
31. “The essentially social nature of legal phenomena is revealed in legal relationships, rather than legal norms, although structural elements of the legal norm facilitate a clearer understanding of that relationality” (LSI at 163).
32. See, e.g., Eekelaar, J. “Judges and Citizens: Two Conceptions of Law” (2002) 22 Oxford J. Legal Stud. 497 CrossRefGoogle Scholar; Levin, Anwar, “The Participant Perspective” in (2002) 21 L. & Phil. 567. Google Scholar