Wednesday, October 14, 2015

What Is Conceptual Jurisprudence about?

Some more thoughts on the misguided search for the nature of law. One of the themes in my paper, one that I think deserves making more explicit, is that under the name of “general jurisprudence,” or the search for the “nature of law,” one finds two quite different, possibly contradictory, endeavors. Like much else in contemporary (Anglophone) jurisprudence, these seemingly different enterprises can be traced back to The Concept of Law, and specifically to its famous preface, where Hart claimed to be doing both “analytical jurisprudence” and “descriptive sociology.”

I hope to dedicate later posts to The Concept of Law and whether it deserves the praise heaped on it. (The answer for twitter: it doesn’t.) For the time being I want to consider the book’s legacy. Few nowadays think, as far as I know, that “analytic jurisprudence” and “descriptive sociology” are perfectly congruent, which is why different people who see themselves as following in Hart’s footsteps end up picking sides. John Gardner is someone who favors the analytic jurisprudence interpretation, Ken Himma adopts the descriptive sociology interpretation. More interestingly, many scholars seem to shift between the two interpretations.

Compare and contrast,

Marmor 2005:
[A]rtistic genres, like legal institutions are products of culture, and hence cannot be misidentified extensively. The fact that law is a cultural product par excellence renders a realist position, and hence a Putnamian account about the meaning of ‘law’, incomprehensible.
Marmor 2013:
Thought…even if it is collective and public, as revealed by language use—is never a guarantee of truth. The fact that we collectively think about something in a certain way does not mean that things are that way. Systematic errors are not unheard of, even if they are deeply entrenched in our language use.
Green 1996 (expounding Hart’s views to a stubbornly uaappreciative world):
There is no essence of law, the understanding of which can replace the hard historical, sociological, or, if you like, genealogical task of explaining law as a social phenomenon.
Green 20123 (still expounding Hart’s views to a still stubbornly unappreciative world):
Hart goes so far as to call his account ‘an essay in descriptive sociology’. That is probably going too far. It is an essay in analytic legal philosophy….There is [in The Concept of Law] none of the linguistic philosophers’ hostility to theory building; no suggestion that legal system is a ‘family-resemblance’ concept or anything like it. Hart even works out necessary and sufficient conditions for something to be a legal system!
These two sets of statements seem to me to be contradictory. Both suggest a move from the sociological version of general jurisprudence to the pre-sociological one. In the paper I suggested that Joseph Raz’s views have shifted in the opposite direction. No doubt, people are entitled to change their mind, but the fact that these two very different views continue to exist, sometimes (as here) in the writings of the same person, without acknowledgement of change, suggests that two very different enterprises may be confused. To quote my paper again, here is a secondary aim I set out for it:
It goes without saying that I hope to convince readers that conceptual jurisprudence is not a viable enterprise, but I recognize that I am unlikely to convince everyone. I hope that even those who remain unconvinced will benefit from recognizing the need for greater clarity on what it is that they are doing when they engage in conceptual jurisprudence.
The quotes above seem to suggest that such a clarification is needed. And since my aim was not just to present these two views but to critique them, and because these two different understandings of conceptual jurisprudence are fundamentally different, responding to them called for altogether different arguments. Hence: a fifty-two page slog.

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