More on Analytic Jurisprudence v. Descriptive Sociology

In my last post I quoted Green’s claim that there is “no suggestion [in The Concept of Law] that legal system is a ‘family-resemblance’ concept or anything like it.” Well, not exactly:

For the notion of ‘family resemblance’: see Wittgenstein, Philosophical Investigations, i, paras. 66–76….Wittgenstein’s advice (op. cit., para. 66) is particularly relevant to the analysis of legal and political terms. [Concept of Law, p. 280].

One would think that a legal system is a legal or political term, so the family resemblance idea is one for which Wittgenstein’s idea would be “particularly relevant.” But even if not in relation to a legal system, Hart clearly thought the idea of family resemblance was useful for explaining the notion of a rule (Concept, p. 15). If that’s the case, what is the the reason that what counts as a legal system is fixed in terms of necessary and sufficient conditions, while other legal and political terms are to be understood in terms of family resemblance?

This puzzle remains unresolved to this day. As far as the determination of what law is, In an article published in 2012, Green explains that this project is “philosophical”:

The first step [in a theory of law] is the classificatory schema itself. Should we include or exclude what we know about the monastic rules of ancient Buddhism? No piling up of contexts or comparisons is going to answer that. We could arbitrarily stipulate; we could choose our concepts to serve our politics; we could deploy our common concept of law; we could consult the suttas of the Buddha. There are choices to be made. If we plan to have or give reasons for those choices we will need some help from abstract considerations that are in substance philosophical.

Green thinks that this is what Hart himself saw himself doing when he said that Hart’s characterization of his work as “descriptive sociology” went “too far.” At the same time, in describing Hart’s justification for insisting on the distinction between duty-imposing rules and power-conferring rules, Green says:

There is no essentialist, ‘metaphysical’, answer to the question of how to divide up the legal material into individual laws; the best approach is one that lets us understand law as it is for those who actually use it, most of whom live outside courtrooms. Power-conferring rules are thought of, spoken of, and used in social life differently from rules that impose duties, and they are valued for different reasons.

Either there is a fundamental inconsistency between the two approaches Hart uses, or there is an unexplained (even after all those years) difference between legal rules, for whose nature we should listen to those who “actually use” them, and law and legal systems, whose nature is a “philosophical” task.

This is just one example of Hart’s methodological confusions, about which I hope to say more soon.