The End of Jurisprudence

63 Pages Posted: 29 Oct 2014

See all articles by Scott Hershovitz

Scott Hershovitz

University of Michigan Law School

Date Written: October 27, 2014

Abstract

For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how their content is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal. I defend this view by drawing analogies with other normative practices, like making promises, posting rules, and playing games. And I try to explain why it looks like legal practices generate distinctively legal rights and obligations even though they do not. I conclude with some thoughts about the questions jurisprudence should pursue in the wake of the Hart-Dworkin debate.

Keywords: jurisprudence, H.L.A. Hart, Ronald Dworkin, Hart-Dworkin Debate, legal positivism, anti-positivism, philosophy of law

Suggested Citation

Hershovitz, Scott, The End of Jurisprudence (October 27, 2014). Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2515494

Scott Hershovitz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
883
rank
25,266
Abstract Views
4,510
PlumX Metrics