Here. There were some 590 downloads of the first version, posted in 2002, which was certainly gratifying, but in fact the final version was very substantially revised, particularly its treatment of the methodology problem (the problem of the methods of legal philosophy). Those who found the earlier version useful might want to at least peruse the revised version (which is, except in some minor respects, the version published in 2003 in the American Journal of Jurisprudence symposium issue, which includes a reply by John Finnis). This material from the introduction summarizes the main issues taken up in the much-expanded methodology section of the paper:
The methodology debate, by contrast--at least as it has been shaped by renewed appreciation[1] of John Finnis’s seminal challenge in Natural Law and Natural Rights[2]--is, in my view, more significant [than the Hart/Raz debate about the rule of recognition]: it promises to show that there is a relevant sense in which law and morality are not separable by challenging the methodological presuppositions of legal positivists. If the very enterprise of understanding the concept of law requires positive moral appraisal of law, then it turns out that questions about the moral foundations of law can not be treated as conceptually severable from questions about the nature of law. Legal positivism does, to be sure, score a partial victory, as Finnis himself concedes when he notes that positivism, in either Hart’s or Raz’s version, does give an adequate account of “what any competent lawyer...would say are (or are not) intra-systemically valid laws, imposing ‘legal requirements.’”[3] What it fails to do, according to Finnis, is explain the “central cases” of law,[4] and that would be an inexcusable failing in any compelling theory of law. Methodology, then, implicates substance--that is, the correctness of any proposed substantive theory of law--and so, given the victory of Hart’s positivism in the Hart/Dworkin dialectic, it makes good sense that legal philosophers have now given renewed attention to the methodological issues: for it is here that a new vulnerability of legal positivism has been identified.
In section I, I shall review the Hart/Dworkin and Hart/Raz debates; this review is elementary, and may be safely bypassed by anyone familiar with the shape of that dialectic. In section II, I turn to questions of methodology in jurisprudence. I shall argue for five propositions in this section: first, that Dworkin’s constructive interpretivism presents no pertinent challenge to legal positivism, since it is thoroughly question-begging; second, that the pertinent methodological challenge to positivism comes from Finnis, and that Dworkin himself needs Finnis-style argument to motivate interpretivism; third, that positivists can respond to and (with some qualifications) defeat this methodological challenge; fourth, that positivists can also (with some qualifications) rebut Perry’s more recent version of Finnis-style arguments; and fifth, that Dickson’s attempt to stake out a position (what she calls “indirectly evaluative legal theory”) intermediate between the methodological positivism or descriptivism of Hart and Finnis’s position is a failure.
Finally, in section III, I turn to a larger debate about methodology that has come to the fore in epistemology, philosophy of mind, and ethics. Here I identify some possible weaknesses of the descriptivist rebuttal to Finnis from section II--the source of the “qualifications” previously noted--and argue for a different way of framing the methodology problem in jurisprudence.
As I explain later in section III:
Legal philosophers have, in my view, been having the wrong debate about jurisprudential methodology: legal philosophy is, indeed, descriptive, and trivially so, in exactly the way most other branches of practical philosophy have an important descriptive component. The real worry about jurisprudence isn’t that it is descriptive--of course it is (or tries to be)--but rather that it relies on two central argumentative devices--analyses of concepts and appeals to intuition--that are epistemologically bankrupt.
I go on to make that case, and to consider what the options are for jurisprudence.
[1] See esp. Stephen R. Perry, “Hart’s Methodological Positivism,” in Hart’s Postscript: Essays on the Postscript to the Concept of Law, ed. J. Coleman (Oxford: Oxford University Press, 2001), p. 313 n. 5 (“My thinking about methodology in legal theory has greatly benefited from Finnis’s general discussion of this topic, and in paritcular from his illuminating critique of Hart”). See also, Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001), esp. chapters 3 and 4.
[3] John Finnis, “On the Incoherence of Legal Positivism,” Notre Dame Law Review 75 (2000), p. 1611.
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