BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, Dennis Patterson, ed., 2nd edition, Forthcoming
11 Pages Posted: 29 Oct 2008
Date Written: October 28, 2008
This essay forms a contribution to the forthcoming second edition of the Blackwell Companion to Philosophy of Law and Legal Theory. It surveys the recent literature on methodology within jurisprudence, and considers the different roles that the invocation of methodology may perform. Dworkin's methodological stance is contrasted and compared with that of Finnis, observing that both proceed beyond an interpretive methodology to one that is constructively interpretive. In linking this to individual discernment of a purpose or point to the law that relies on descriptive work, the normative/descriptive dichotomy appears simplistic, as Finnis has acknowledged.
Dickson's attempt to forge a Razian third way between normative and descriptive methodology is explored through her exchange with Leiter. This leaves uncertainties over what a purely descriptive approach would amount to, but also some confusion over the nature of an "indirectly evaluative" approach. In particular, it is suggested that this collapses into a directly evaluative approach from an individual theoretical perspective - relying on the theorist's discernment of purpose or point to the law, which amounts to a common element of theory building rather than a distinctive methodology.
Leiter's own naturalistic methodology is examined within a broader discussion of conceptual analysis: taking in the Quinean position favoured by Leiter and the traditional philosophical position found within mainstream jurisprudence; noting Bix's observation on how the latter position cannot be fully accommodated within the approach to conceptual analysis favoured by Raz; and referring to a richer notion of conceptual analysis advocated by Halpin elsewhere. The promotion of a concept of law that is expected to convey the essential character of law is regarded as begging a number of questions.
Attempts to transfer the methodology debate to an issue over semantics are considered, but criticized for the unhelpful abstractness of the discussion that ensues. The normative/descriptive divide is then examined further. If dependent at a trivial level on metatheoretical precepts, it fails to get established because all the differences are on the descriptive side: what makes a description more effective. If based on different understandings of a hermeneutic approach (or, more loosely, of what provides the purpose or point to the law), this becomes unstable in the face of the possibilities of raising either a normative or descriptive inquiry on descriptive or normative matters. The suggestion is made that the opening for normative theory is created by the possibility of contestable theoretical inquiry over argumentative normative material; and it is noted that the hard descriptivists, Raz and Leiter, preclude these conditions from their inquiries.
In conclusion, the role of methodology as an arbiter of sound theory is rejected; the value of methodological discussion is endorsed as a means of encouraging reflection on working methods, which might raise the scientific credentials of legal theory; and the status of a methodology for legal theory is subordinated to a thorough familiarity with the experiential base of the law.
Keywords: methodology, normative jurisprudence, descriptive jurisprudence, conceptual analysis, semantics, the normative/descriptive divide, the concept of law
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