Harts Postscript Dworkin's Early Work Essay

Length: 8 pages Sources: 30 Subject: Business - Law Type: Essay Paper: #5994986 Related Topics: Positivism, Max Weber, Hacking, Christopher Columbus
Excerpt from Essay :

Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31). He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, to put the matter differently, the theorist herself) need not, and should not, endorse the system (as one which is generally just or which creates binding moral obligations). In other words, the theory simultaneously:

(1) attempts to take into account the participant's perspective; and (2) manages to choose among possible participants' perspectives without having to make moral judgments; while

(3) keeping sufficient distance from the participants' perspective to allow for moral criticism of the whole system / enterprise (Perry, 1995-page 52).

The danger is of Hart's position sliding towards an Austin-like command theory, on one side, and a position closer to Finnis' or Dworkin's, on the other (Hacker, 1977-page 14). To put the matter a different way, the question is how to take seriously the need to accept the perspective of a participant in a practice while still maintaining a sufficient distance to be able to criticise the practice (and the participants) (Raz, 1979-page 17). In social theory (or perhaps, more accurately, "social sciences meta-theory"), this has led to an ongoing debate regarding whether an attempt to "explain each culture or society in its own terms ... rules out an account which shows them up as wrong, confused or deluded" (Ball, 1990-page 72). (One can say: if you claim to understand the perspective of the believing participant of a particular practice, but you think the practice is irrational and cruel, then you have not really understood or properly incorporated the perspective of the believer, because that is not how it looks to him or her (Twining, 1979-page 34). An additional complication, one whose implications are hard to tease out, is that in the social sciences one must consider the role of an internal point-of-view, both in the evaluation of data gathered and in the actual gathering of that data nor to evaluating it. This additional point is unclear in its implications because it ties into the debate on what it would mean to "gather evidence" (Cohen, 1984-page 18) for a general theory of law (and what kind of evidence one would want).

Conclusion

Hart offers a contrast between possible types of legal theory, a contrast based on images. One type of theory is to be used "within" the legal system: for example, in telling a judge how to decide disputes. Another type of theory involves looking at the system "from the outside." Basing the argument on the images, one would say that a theory cannot be simultaneously part of the legal system and a description of the system from the outside. In some ways, this last argument is a strange one for Hart to have put forward, for one of the most significant aspects of Hart's approach to law was that it demanded that we look at the perspectives of citizens and officials within a legal system, the "internal point-of-view," in constructing a theory of law.

The main question for this exchange between Dworkin and Hart is how much we can rely on the images, on the metaphors, alone in evaluating or creating arguments. It does sound strange to say that a theory is simultaneously part of the system and the best

...

However, this type of argument, with all its hints of circularity, is actually relatively common in modern philosophy; examples include the hermeneutic circle in literary theory, and John Rawls' use of reflective equilibrium in moral and political theory.

To the extent that there is a true conflict between Dworkin and Hart, it is at those times when Dworkin states or implies that there is no room for a substantive, detailed and interesting descriptive theory of law (that is not interpretative). This struggle can be seen not only in Hart's insistence on the space for and need for a (non? interpretative) descriptive theory of law in general, but also in his disagreement with any attempt to recast legal positivism as being about justifying present or future coercion, and his claim that even if the "sense" of legal propositions in most or all legal systems is interpretative or evaluative, it does not follow that a descriptive theory of such matters need also be interpretative or evaluative.

Works Cited

Austin, John, The Province of Jurisprudence Determined (H L.A. Hart ed., London: Weidenfeld & Nicolson, 1955).

Austin, Regina, "Sapphire Bound! (Minority Feminist Scholarship)" (1989) Wisconsin Law Review 539.

Baird, Douglas; Gertner, Robert and Picker, Randal, Game Theory and the Law (Cambridge, Mass.: Harvard University Press, 1994).

Baker, Gordon, "Defeasibility and Meaning" in Law, Morality, and Society (P M.S. Hacker and J. Raz eds., Oxford: Clarendon Press, 1977), pp. 26-57.

Balkin, Jack, "Transcendental Deconstruction, Transcendent Justice" (1994) 92 Michigan Law Review 1131.

Ball, Milner, "The Legal Academy and Minority Scholars" (1990) 103 Harvard Law Review 1855.

Cohen, M. ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth 1984)

Dworkin, Gerald ed., Morality, Harm and the Law (Boulder, Colo.: Westview Press, 1994).

Dworkin, Ronald, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986).

Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977).

Eekelaar, J.M., "Principles of Revolutionary Legality" in Oxford Essays in Jurisprudence, Second Series (Oxford: Clarendon Press, 1973), pp. 22-43.

Epstein, Richard, "A Theory of Strict Liability" (1973) 2 Journal of Legal Studies 151.

Eskridge, William, "Gaylegal Narratives" (1994) 46 Stanford Law Review 607.

Hart, H.L.A., "Definition and Theory in Jurisprudence" (1954) 70 Law Quarterly Review 37-60, reprinted in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), pp. 21-48.

Hacker, P.M.S., "Hart's Philosophy of Law" in Law, Morality and Society: Essays in Honour of H.L.A. Hart (P M.S. Hacker and J. Raz eds., Oxford: Clarendon Press, 1977), pp. 1-25.

Hacker, P.M.S. And Raz, Joseph eds., Law, Morality and Society: Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press, 1977).

Mackie, John, "The Third Theory of Law" (1977) 7 Philosophy and Public Affairs 3, reprinted in Ronald Dworkin and Contemporary Jurisprudence (M. Cohen ed., London: Duckworth, 1984), pp. 161-170.

MacCormick, Neil, H.L.A. Hart. Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978).

Perry, Stephen, "Interpretation and Methodology in Legal Theory" in Law and Interpretation (A. Marmor ed., Oxford: Clarendon Press, 1995), pp. 97-135.

Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979).

Twining, William, "Academic Law and Legal Philosophy: The Significance of Herbert Hart" (1979) 95 Law Quarterly Review 557.

Twining, William, Karl Llewellyn and the Realist Movement (Norman, Oklahoma: University of Oklahoma Press, 1985).

Tushnet, Mark, "Following the Rules Laid Down: A Critique of Interpretation and Neutral Principles" (1983) 96 Harvard Law Review 781.

Twining, William, "Academic Law and Legal Philosophy: The Significance of Herbert Hart" (1979) 95 Law Quarterly Review 557.

Weber, Max, The Methodology of the Social Sciences (E. Shils and H. Finch eds., New York: Free Press, 1949).

Weber, Max, "Objectivity' in Social Science and Social Policy" in The Methodology of the Social Sciences (E. Shils and H. Finch eds., New York: Free Press, 1949), pp. 50-112.

Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 95-96.

See Hart, The Concept of Law, pp. 54-57, 79-88.

The foundational work advocating a hermeneutic approach to social theory is probably Max Weber, "Objectivity' in Social Science and Social Policy" in The Methodology of the Social Sciences (E. Shils and H. Finch eds., New York: Free Press, 1949), pp. 50-112, Hart's immediate…

Sources Used in Documents:

Works Cited

Austin, John, The Province of Jurisprudence Determined (H L.A. Hart ed., London: Weidenfeld & Nicolson, 1955).

Austin, Regina, "Sapphire Bound! (Minority Feminist Scholarship)" (1989) Wisconsin Law Review 539.

Baird, Douglas; Gertner, Robert and Picker, Randal, Game Theory and the Law (Cambridge, Mass.: Harvard University Press, 1994).

Baker, Gordon, "Defeasibility and Meaning" in Law, Morality, and Society (P M.S. Hacker and J. Raz eds., Oxford: Clarendon Press, 1977), pp. 26-57.


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