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Published online by Cambridge University Press: 02 January 2018
The paper provides a critical survey of certain methodological debates in the field of legal philosophy in order to assess their implications for legal research in general. Underpinning this survey is a concern to establish the independence and integrity of both legal practice and legal research in the light of the risks posed by preponderant forms of instrumental rationality. Thus, Brian Leiter's recent call for a ‘naturalised’ jurisprudence is criticised for the instrumentalist basis upon which he claims to privilege forms of legal research apparently ‘continuous with’ the natural and empirical social sciences. As against Leiter, it is argued that there are in fact a range of distinct but interrelated modes of legal research. In this respect, the work of HLA Hart is interpreted as an example of a distinctively theoretical mode of inquiry into law. In addition, an account of the nature of a distinctively practical mode of legal inquiry is developed from a critique of Ronald Dworkin's excessively ‘theoretical’ reading of the interpretive character of legal practice. A constitutive practical feature of both modes of inquiry is their capacity to take up a certain distance from any exclusive concern with instrumental or pragmatic action.
1 Leiter, B Naturalising Jurisprudence (Oxford: Oxford University Press, 2007).CrossRefGoogle Scholar
2 Ibid, p 3.
3 Ibid, p 145.
4 Ibid, p 148.
5 Ibid, p 3.
6 I have used the term ‘generic’ for these disciplined activities of prediction and control because Leiter himself puts natural science and empirical social science into the same epistemic box, as it were. He does this because both forms of inquiry have provided, in Leiter's view, the best available ways of predicting and controlling, of coping, with the world. Boxing the two together in this way is arguably an act of legerdemain on Leiter's part, in that the differences here seem to be more important than the similarities. First, there are clearly differences between the methods employed by natural and social science and there are also important differences as regards the reality postulated by these different modes of inquiry: atoms and preferences, molecules and markets. Secondly, it also seems that whereas natural science's predictive potential has been successfully, albeit sometimes dangerously, harnessed for coping purposes (things have got out of control), social science's potency in this respect has not been as clear, even if its application to social reality has often been just as risky. Finally, we might say, and this argument is developed later in the main body of the paper, that both empirical social science and natural science are distinctive types of activity and it is misleading, certainly in the case of natural science, to understand them in relation to wider and diffuse categories of action like prediction and control.
7 A brief and simplified account of the ‘disquotational’ theory of truth might be given as follows: current scientific practice provides us with a particular account of external reality, we can make assertions about such reality and, insofar as we make such assertions, they are implicitly asserted as true. In this sense, there is a need to place such an assertion ‘in quotations’, as it were, and provide a separate philosophical justification for attaching the separate predicate ‘is true’ to it. For these points, see Leiter, above n 1, p 147.
8 See Lobban, M The Common Law and English Jurisprudence (Oxford: Clarendon Press, 1991).Google Scholar
9 Hart, Hla The Concept of Law (Oxford: Clarendon Press, 2nd edn, 1994).Google Scholar
10 Finnis, J John Austin’ in Honderich, T (ed) The Oxford Companion to Philosophy (Oxford: Oxford University Press, 2005).Google Scholar
11 See Hart, above n 9, pp 13–17.
12 See M Oakeshott On Human Conduct (Oxford: Clarendon Press, 1975) pt I and RG Collingwood An Essay on Metaphysics (Oxford: Oxford University Press, 1940) pts I, II, IV and V and R Martin (ed) ‘Introduction’ in RG Collingwood An Essay on Metaphysics (Oxford: Oxford University Press, 3rd edn, 2002). It should be noted that the use of terminology like ‘presuppositions’ and ‘postulates’ in this context may give rise to misunderstanding. Those familiar with Hart's work will recall that in ch six of the Concept of Law, above n 9, Hart discusses the pivotal concept of the rule of recognition. In a footnote to that chapter (p 292) entitled ‘Rule of recognition and Kelsen's “basic norm”’, Hart insists on the point that the question ‘whether a rule of recognition exists and what its content is... is regarded as an empirical, though complex, question of fact’ (p 292). Later, he states that Kelsen's ‘terminology classifying the basic norm as a... “postulated ultimate rule”... obscures, if it is not actually inconsistent with, the point stressed in this book, viz that the question of what the criteria of validity in any given legal system are is a question of fact’ (p 293). On the face of it then, it may seem problematic to describe the ‘rule of recognition’ as a postulate. In effect, however, the crucial point is that for Kelsen the ‘basic norm’ is postulated or presupposed by ‘juristic consciousness’, whereas a philosophical account of a ‘postulate’ is supplied by philosophical inquiry as a way of explaining the fact that legal practice employs an ultimate criterion of legal validity. As Hart rightly insists, legal practice itself cannot be properly said to ‘postulate’ formally the rule of recognition, but rather to presuppose tacitly ‘the fact that the rule of recognition (by reference to which he has tested the validity of the particular rule) exists as the accepted rule of recognition’ (pp 292–293). It is for legal philosophy to explain this background feature of legal practice through describing and clarifying the postulate of the rule of recognition.
13 See, inter alia, Hart, above n 9, p 255.
14 Ibid, pp 105–110.
15 Dworkin, R Law's Empire (Oxford: Hart, 1998).Google Scholar
16 Ibid, pp 228–238.
17 Ibid, p 226.
18 Ibid, pp 4–6.
19 See Austin, JL Performative utterances’ in Urmson, JO and Warnock, JG Philosophical Papers (Oxford: Clarendon Press, 2nd edn, 1970).Google Scholar