Tuesday, November 3, 2015

The Neglected Alternative: Interpretivism

If, as I suggested, conceptual jurisprudence can neither make sense as an a priori conceptual inquiry nor as a “descriptive”sociological inquiry, is there anything left? There may be. To see this, it is helpful to present a version of the sociological strand of jurisprudence broken down into four separate steps:
Step 1: Start with the practice, gather information about what people think law is, what their attitudes toward law are, as well as evidence about the practice itself.
Stage 2: Extract certain features from the practice that are important, central, and so on.
Stage 3: Make those features the foundation of a “theory” of the practice.
Stage 4: On the basis of the theory developed in stage 3, reinterpret the remaining parts of the practice and dismiss certain things that might be thought to belong to the practice as not really belonging to it.
Does this look familiar? This is a fair description of some of what Hart is doing in The Concept of Law. But to legal philosophers this should be more familiar from the writings of someone else. For what I described here is Dworkin’s interpretivism. Dworkin described three stages (calling them “pre-interpretive,” “interpretive,” and “post-interpretive”), but that’s not an important distinction. I split his interpretive stage into two (stages 2 and 3 in my scheme).

One reason why legal positivists should embrace this suggestion is because an interpretive account is more forgiving than “descriptive” theories of the absence of supporting empirical evidence. Since such approaches aim to capture a facet of the practice that they see as central and explain the entire practice in relation to it, one need not show that it is featured in all instantiations of the practice. It is enough that one shows that that facet is part of the practice to overcome the empirical hurdle.  

Now, there’s the rub: How is the positivist to conduct stage 2? Dworkin said, plausibly, that one must adopt a normative perspective from which the judgments at stage 2 are to be made. He could say so, because he rejected the alleged value neutrality of jurisprudence. But positivists wanted their account to be “descriptive,” at least in the sense of being morally neutral. The schematic four-stage outline suggests this is a false hope. It is worth spelling out why.

John Finnis, writing in 1980, argued that “there is no escaping the theoretical requirement that a judgment of significance and importance must be made if theory is to be more than a vast rubbish heap of miscellaneous facts.” The idea of importance appealed to many legal positivists: Hart, Raz, and Dickson all embraced it. But Finnis added that the “principles of selection and relevance” must be taken from some “practical viewpoint.” It is this last point that legal positivists rejected, without explaining how we are to make those judgments of importance. There is, however, no escaping that such judgments are either explicitly evaluative (Finnis and Dworkin) or implicitly so (Hart, Raz, Dickson). 

As mentioned in an earlier post, at one point Hart came close to admitting this, but the real issue is not what Hart thought. Legal positivists have a story about the point of law, one according to which law exists in order to provide clarity about what one ought to do by providing solutions to co-ordination problems, by eliminating moral conflicts, by specifying vague moral requirements. Though treated as a conceptual claim about the nature of law, it is a contentious account about what (in principle) makes law legitimate. 

And things get worse: it is not just that the important or essential features of the practice do not carry a label; it is what belongs to the practice that may be a controversial matter. Or rather, we know for a fact that it is. Some people think that a regime that bosses people around can have law (e.g. H.L.A. Hart, Matthew Kramer), others (e.g., Les Green) think otherwise. (And these are only the differences among self-styled legal positivists.) In other words, contrary to the assumption of conceptual jurisprudents that the practice is stable and all disagreements are at the level of the explanation (“theory”) of the practice, there are disagreements regarding what belongs to the practice itself. Since conceptualists deny that a survey can decide such matters, they have to resort to evaluative judgments are required for determining what counts as law, and for the sake of picking up its important features.

Hart’s own words make it easy to show he was an interpretivist, but the same is true of Raz, Dickson, Scott Shapiro and other legal positivists. They may not like this characterization, but against the alternatives—circular a priori inquiry or empirical sociology with no evidence—they should.

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