The Methodology of Legal Philosophy
H. Cappelen, T. Gendler, & J. Hawthorne (eds.), Oxford Handbook of Philosophical Methodology, Forthcoming
26 Pages Posted: 28 Oct 2012 Last revised: 10 Sep 2013
Date Written: September 6, 2013
This is the revised and penultimate version of this paper. The essay surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. Unsurprisingly, then, methodological debates typically scrutinize either one of two (related) methodological claims in Hart’s classic work. The first is that his theory is both general and descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and descriptive sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and descriptive sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin).
Keywords: H.L.A. Hart, methodology, descriptive jurisprudence, conceptual analysis, John Searle, legal philosophy, general jurisprudence
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